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Gujarat High Court

Honor Bhaji Pav Thru .Proprietor Satish ... vs Ahmedabad Municipal Corporation on 31 January, 2020

Author: Bhargav D. Karia

Bench: Bhargav D. Karia

       C/SCA/3051/2019                                        CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 3051 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

==========================================================

1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

==========================================================
     HONOR BHAJI PAV THRU .PROPRIETOR SATISH NEKRAM PATEL
                             Versus
             AHMEDABAD MUNICIPAL CORPORATION
==========================================================
Appearance:
MR SUDHIR NANAVATI, SENIOR ADVOCATE WITH MR HARSHADRAY A
DAVE(3461) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,5
6,57,58,59,6,60,61,62,63,7,8,9
MS SHRUTI PATHAK, AGP for the Respondent(s) No. 2,3
MR PRASHANT DESAI, SENIOR ADVOCATE WITH MR SATYAM Y
CHHAYA(3242) for the Respondent(s) No. 1
==========================================================

    CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                               Date : 31/01/2020

                                CAV JUDGMENT

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1. By this petition under Articles 19(1)(g), 21 and 226 of the Constitution of India, the petitioners have prayed for the following reliefs :

"a) This Hon'ble Court be pleased to allow this petition.

b) This Hon'ble Court be pleased to declare the action of the respondents of evicting the petitioners from their place of business from where they are running their business since last more than 40 years and the action of seizure of the belongings of the petitioners as illegal, violative of provisions of the Act of 2014, the Scheme framed thereunder, the Bombay Provincial Municipal Corporation Act, etc. and further be pleased to declare the same as null and void.

c) The Hon'ble Court be pleased to issue a writ of mandamus or prohibition or in the nature of mandamus or prohibition or any other appropriate writ, order or direction, restraining the respondents from creating any hurdles, obstruction, objections etc. through its employees, agents, officers etc. for the petitioners to carry out and run their business of eatery from the place from where they were running their business since last more than 40 years.

d) This Hon'ble Court be pleased to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents to release and handover all the belongings along with their documents and cash amount forthwith enabling the petitioners to run their business for their livelihood.

e) This Hon'ble Court be pleased to issue a writ of prohibition, or in the nature of prohibition, or any other appropriate writ, order or direction, directing the respondents not to evict, restrain, confiscate the belongings etc. from the place of their business without following the due procedure law.

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f) Pending the admission and final disposal of the petition, this Hon'ble Court be pleased to restrain the respondents from creating hurdles, obstruction, objection etc. against the petitioners from conducting their business from the place of their business near Law Garden.

g) To pass such other and further orders as are necessary in the interest of justice."

2. Facts giving rise to this petition can be summarised as under :

2.1) The petitioners are the local hawkers and the sellers of food items and were doing their respective business by keeping food stalls/Laaries in the street near law garden, Ahmedabad. The street in which the petitioners were carrying on their small eateries is having two compound walls, one is adjacent to Law garden itself whereas another is near NCC ground. According to the petitioners, they were earning their livelihood from their small business of eateries since last more than 40 years which was set up by their ancestors and such business were continued by their respective family members and heirs.

2.2) It is the case of the petitioners that the aforesaid street near Law garden in Ahmedabad where the petitioners used to carry their business was popularly known as "Khau Gali" and was running for more than 40 years in the city of Ahmedabad. According to the petitioners, petitioners were facing various issues and objections since last many years pertaining to the place and area of their business and several petitions were filed before this Court and even Civil Suit was filed before the Page 3 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT City Civil Court against the respondent Ahmedabad Municipal Corporation.

2.3) The Regular Civil Suit was filed in the Civil Court in the year 1987. Special Civil Application No.4171/1989 was filed in the year 1989 and a Civil Application No.1669/1991 in Misc. Civil Application No.941/1991 in Special Civil Application No.4171/1989 was filed in the year 1991. According to the petitioners in both these matters, this Court had passed an order asking the petitioners to make representation to the respondent Corporation pertaining to accommodation and permission for doing and carrying on the business in the aforesaid area i.e. street near Law garden. The petitioners relied upon such orders as such petitions were filed by the interested persons similarly situated like the petitioners.

2.4) It is the case of the petitioners that pursuant to orders passed by this Court in Special Civil Application No.4171/1989 and in Misc. Civil Application No.941/1991, the local hawkers who used to carry on the business near the Law garden area, had made representations before the respondent Corporation in writing several times and had requested to make some arrangements for them so that they can carry on their business without any hindrance or interference from the respondent authorities.

2.5) It appears that another Special Civil Application No.6258/2000 was filed before this Court wherein by order dated 11th July, 2000 it was observed that "The Scheme is approved by the Division Bench of this Court and the Apex Page 4 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT Court. Therefore, the respondents are duty bound to see that the Scheme is strictly implemented and no one is permitted to take undue advantage of the situation.

Respondents are directed to implement the scheme without fail at the earliest."

2.6) It appears that another Special Civil Application No.1911/2001 was filed by one Arvind Purshottam Chauhan and 56 other persons against the respondent Corporation for the similar issue. Thereafter, by resolution no.24 dated 11th August, 2000 passed by Recreation and Culture Committee, it was resolved to remove the encroachment surrounding the Law garden area and other gardens of the city, etc. 2.7) It appears that thereafter the local body of the Corporation had asked the Ahmedabad Municipal Commissioner through a letter to regularise the encroachment made by the local hawkers by initiating necessary steps by bringing necessary amendments in the Gujarat Town Planning and Urban Development Act, 1976 by making some changes and variations in TP Scheme to consider the concept of "FOOD COURT" near the Law garden area. It appears that thereafter, the Ahmedabad Municipal Commissioner addressed a letter to the Roads and Building Committee pertaining to develop "FOOD COURT" near Law garden. The Road and Building Committee passed a resolution No. 145 dated 29th December, 2004 that the said "FOOD COURT" would be constructed and for the same, one Prabhakar B. Bhagwat was appointed as architect.

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2.8) It is the case of the petitioners that after resolution no. 145 was passed, the Standing Committee of the respondent Corporation by resolution no. 1351 dated 24th February, 2005 requested the Municipal Commissioner to negotiate the fee of the appointed architect and to take appropriate actions for variation in the TP Scheme.

2.9) It is the case of the petitioners that Estate Central Office for Encroachment by letter dated 6th July, 2007 addressed to the Ahmedabad Municipal Commissioner, relying upon the legal opinion rendered by the advocate of the Corporation, suggested to develop the area as "FOOD COURT" by making necessary variations in the TP Scheme under the provisions of Gujarat Town Planning and Urban Development Act, 1976. It appears that accordingly in the year 2009, the Commissioner decided to make necessary amendments in the Town Planning Act by making variations in the TP Scheme through the State Government and had also ordered to develop the "FOOD COURT" on the aforesaid land where the petitioners used to carry on their business.

2.10) It is the case of the petitioners that in spite of the aforesaid decision for developing the "FOOD COURT" was taken, no implementation was made by the respondent Corporation, therefore, the petitioners again in the year 2010 requested the respondent Corporation to develop the "FOOD COURT" and to promote the "FOOD COURT" in the aforesaid area. According to the petitioners even after the aforesaid resolution being passed for development of the Page 6 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT "FOOD COURT", a number of representations were made to declare the same place as "FOOD COURT", but the respondent Corporation did not respond and the petitioners were harassed and evicted time and again from the place of their business without following due process of law.

2.11) According to the petitioners, the respondent Corporation had informed and assured the petitioners that they would be put to their place after it is designed and would allow the petitioners to carry on the business till then no legal steps would be initiated by the petitioners. According to the petitioners, considering the assurance given by the Corporation, the petitioners did not take any steps for protection and implementation of their rights and have altered their position from what they were and what they are now. According to the petitioners, the respondent Corporation is bound by the principle of Promissory Estoppel and therefore, the petitioners could not have been evicted from their place of business.

2.12) The respondent corporation in the month of August 2018 removed the food­stalls/Laaries/trolleys of the petitioners with a view to develop the area and to create Modern Urban Street popularly known as "Happy Street". The respondent Corporation decided to develop the street in such a manner so that parking facility could be increased in the area and during the evening hours, there may be regulated food stalls, wherein hygienic food can be provided through food vans. The respondent corporation submitted the task of developing "Happy Street" to Page 7 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT National Institute of Design. According to the respondent Corporation, such development is near completion and the respondent Corporation also invited global tenders for allotment of space for food vans on the various locations as per the plan.

2.13) The petitioners are now relying upon the provisions of The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (here­in­after referred to as "the Act of 2014") so as to protect their rights from being evicted and/or relocating the petitioners in accordance with the provisions of the Act of 2014.

2.14) It appears that another petition being Special Civil Application No.2713/2019 was filed by similarly situated local hawkers of the same area challenging their eviction from place of business. Similar contentions were raised in the said petition that the local hawkers were allottees of licenses to carry on the business of street food from their respective Laaries/stalls and as the respondent Corporation came out with a scheme of developing "Happy Street", the action was taken against such hawkers. However, during the course of hearing of the said petition, the respondent Corporation had floated a global tender inquiry, inviting the interested parties for auctioning the earmarked areas on one side of "Happy Street" in Law garden area for installation of food vans only during evening hours. The petitioners of the said petition and other local hawkers doing their business were removed in August 2018. The petitioners of the said petition stated before the Court that they were ready to participate in the Page 8 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT proposed tender inquiry on assurance been given by the Corporation to give preference to such local hawkers for the said allotment in the "Happy Street", if their offer is similar to the highest offer submitted by other parties. Accordingly, the Corporation in view of the peculiar facts and circumstances of the case, agreed to give preference to the local hawkers who were removed in August 2018 on the condition that offers/bids would be similar to other highest bidders in the proposed tender inquiry. In view of the aforesaid development, said petition was disposed of by this Court vide order dated 29th July, 2019 without entering into the merits of the case.

3. Learned Senior Advocate Mr. Sudhir Nanavati assisted by learned advocate Mr. Harshadray A. Dave relied upon various provisions of the Act of 2014 to submit that the respondent Corporation is bound by the provisions of the Act of 2014. According to the learned Senior Advocate, the petitioners are street vendors as defined in section 2(1)(l) of the Act of 2014 which reads as under :

"2. (1) In this Act, unless the context otherwise requires ­ xxx

(l) "street vendor" means a person engaged in vending of articles, goods, wares, food items or merchandise of everyday use or offering services to the general public, in a street, lane, sidewalk, footpath, pavement, public park or any other public place or private area, from a temporary built up structure or by moving from place to place and includes hawker, peddler, squatter and all other synonymous terms which may be local or region specific;

and the words "street vending" with their grammatical variations and cognate expressions, shall be construed Page 9 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT accordingly."

3.1) It was submitted that the petitioners are hawkers engaged in vending of food items in the street near Law garden from a temporary built­up structure or movable structure.

3.2) It was submitted that as per the provisions of section 3(1) of the Act of 2014, it was necessary for the respondent Corporation to conduct survey of all existing street vendors within the area of its jurisdiction. Section 3(1) of the Act reads as under :

"3. Survey of street vendor sand protection from eviction or relocation.--(1) The Town Vending Committee shall, within such period and in such manner as may be specified in the scheme, conduct a survey of all existing street vendors, within the area under its jurisdiction, and subsequent survey shall be carried out at least once in every five years."

3.3) According to Mr. Nanavati, as no survey is carried out as provided in the aforesaid provision with regard to the petitioners by the Town Vending Committee, the respondent Corporation could not have evicted the petitioners from their place of business. The term "Town Vending Committee" is defined in section 2(1)(m) to mean the body constituted by the appropriate Government under section 22 of the Act of 2014. It was therefore, submitted that as no survey was conducted by the Town Vending Committee, the provisions of sub­sections (2) and (3) of section 3 of the Act of 2014 are not complied with. Sub­ sections (2) and (3) of section 3 read as under :

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"(2) The Town Vending Committee shall ensure that all existing street vendors, identified in the survey, are accommodated in the vending zones subject to a norm conforming to two and half per cent. of the population of the ward or zone or town or city, as the case may be, in accordance with the plan for street vending and the holding capacity of the vending zones.

(3) No street vendor shall be evicted or, as the case may be, relocated till the survey specified under sub­section (1) has been completed and the certificate of vending is issued to all street vendors."

3.4) Mr. Nanavati therefore, submitted that the action on part of the respondent Corporation of evicting the petitioners from their place of business is in breach of the aforesaid provisions of Act of 2014.

3.5) According to Senior Advocate Mr. Nanavati, the respondent Corporation has also not followed the provisions of section 18 of the Act of 2014 which provides for relocation and eviction of street vendors under Chapter IV. Section 18 reads as under :

"18. Relocation or eviction of street vendors.--(1) The local authority may, on the recommendations of the Town Vending Committee, declare a zone or part of it to be a no­ vending zone for any public purpose and relocate the street vendors vending in that area, in such manner as may be specified in the scheme.

(2) The local authority shall evict such street vendor whose certificate of vending has been cancelled under section 10 or who does not have a certificate of vending and vends without such certificate, in such manner as may be specified in the scheme.

(3) No street vendor shall be relocated or evicted by the Page 11 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT local authority from the place specified in the certificate of vending unless he has been given thirty days' notice for the same in such manner as may be specified in the scheme.

(4) A street vendor shall be relocated or evicted by the local authority physically in such manner as may be specified in the scheme only after he had failed to vacate the place specified in the certificate of vending, after the expiry of the period specified in the notice.

(5) Every street vendor who fails to relocate or vacate the place specified in the certificate of vending, after the expiry of the period specified in the notice, shall be liable to pay for every day of such default, a penalty which may extend up to two hundred and fifty rupees, as may be determined by the local authority, but shall not be more than the value of goods seized."

3.6) It was therefore, submitted that though sub­ section(3) of section 18 provides for issuance of 30 days notice, no such notice is issued by the respondent Corporation. Attention was also drawn to sub­section(4) of section 18 of the Act of 2014 with regard to relocation or eviction after the expiry of period of notice.

3.7) Reference was made to section 38 of the Act of 2014 which provides for scheme for street vendors and reads as under :

"38. Scheme for street vendors.--(1) For the purposes of this Act, the appropriate Government shall frame a scheme, within six months from the date of commencement of this Act, after due consultations with the local authority and the Town Vending Committee, by notification, which may specify all or any of the matters provided in the Second Schedule."

3.8) Learned Senior Advocate for the petitioners referred Page 12 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT to the Gujarat Street Vendors (Protection of Livelihood and Regulation of Street Vending) Scheme, 2018 ("the Scheme of 2018" for short) which is notified by notification dated 10th December, 2018 by Urban Development and Urban Housing Development of State of Gujarat. Reference was made to clauses 3,4 and 6 of the Scheme of 2018 which read as under :

"CHAPTER - II MANNER OF CONDUCTING SURVEY

3. Process of Survey.­(1) The Town Vending Committee shall conduct the survey itself or get it done by any suitable agency.

(2) Adequate publicity of the proposed survey shall be given:­ i. on its website, ii. by publishing in any two prominent local newspapers published in the local language of the area, iii. by placing it on the notice board of the ward offices, and iv. by placing a copy in any conspicuous place in the local market within the jurisdiction of the local authority.

(3) The survey outcome shall be available in the digital format.

(4) The process of survey shall be completed within a period of six months.

(5) The survey shall capture the geo­coordinates of the place of vending and other details of the vendors as indicated inform I, Page 13 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT CHAPTER - III ISSUE OF CERTIFICATE OF VENDING

4. Certificate of Vending to street vendors and terms and conditions­The Town Vending Committee shall issue a certificate of vending in Form II within a period of one year from the date of commencement of survey, to the street vendor identified under the said survey, subject to the following terms and conditions, namely:­

(i) The street vendor shall not have any other means of livelihood except street vending,

(ii) The street vendor shall not be carrying on the vending activity from any other site in any other place,

(iii) The street vendor shall carry the vending himself for though his family members who shall not be less than eighteen years of age, vending cannot be done by employee/ helper alone,

(iv) The street vendor shall not be less than eighteen years of age on the date of survey,

(v) The certificate of vending cannot be leased, rented or sold to any other person.

(vi) An undertaking in this respect along with the conditions (i) and (ii) shall be submitted by the street vendor to the Town Vending Committee, in Form III, and

(vii) The certificate of vending should have photograph of the person vending and that of the spouse or dependent child above eighteen years of age, provided they are involved in vending form that site. The photographs of all such persons shall also be added in the certificate.

xxx

6. Format of Identity Card­ The Identity Card to be issued to the street vendor shall be in form IV."

3.9) Referring to aforesaid clauses of the Scheme of 2018, Page 14 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT it was submitted that no survey as prescribed under clause 3 is carried out by the respondents authorities. The petitioners are also not issued certificate of vending in Form II by the Town Vending Committee as provided in clause 4. The petitioners are also not given any identity card as provided in clause 6 of the Scheme of 2018. Thereafter, reference was made to clause 14 of the Scheme of 2018 falling under Chapter VII for relocation and eviction of street vendors as per section 18 of the Act of 2014. Clause 14 of the Scheme of 2018 reads as under :

"CHAPTER - VII RELOCATION AND EVICTION OF STREET VENDORS

14. Public purpose for which a street vendor may be relocated and the manner of relocation.­ (1) Any project of public purpose requiring temporary or permanent shifting of the street vendors in the project related area, the concern authorities shall.­

(i) adjust the street vendors required to be removed, to the extent possible, in any nearby place temporarily or permanently, and

(ii) after the completion of the project, the street vendors relocated may be brought back and adjusted in the newly developed project area to the extent possible with transparent and merit base process. The decision of the local authority shall be final.

(2) The rehabilitation of street vendors under any public purpose shall require to be done with transparent and merit base process."

3.10) Referring to clause 14(1) of the Scheme of 2018, it was submitted that it was the duty of the respondent Corporation to relocate the petitioners in the newly Page 15 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT developed project area i.e. "Happy Street" to the extent possible with transparent and merit base process. However, the respondent Corporation did not offer any alternate place to the petitioners in "Happy Street"

development project initiated by the respondent Corporation.

3.11) Learned Senior Advocate for the petitioners thereafter, relied upon clause 15 of the Scheme of 2018 which provides for manner of evicting a street vendor which also requires issuance of one month notice of eviction. Clause 15 reads as under :

"15. Manner of evicting a street vendor.­(1) The Town Vending Committee shall bring in its agenda and discuss the issue of eviction of street vendors prior to the issuance of one month notice of eviction, so that a survey can be conducted to identify an equally ideal vending site for the street vendors.

(2) The one month written notice shall be served personally or by a registered post in the name of the street vendor prior to the eviction.

In case the registered post comes back undelivered, the said notice shall be pasted in the area where from such person is carrying on his vending activity. It would be deemed to be considered as the service of the notice to the person concerned."

It was therefore submitted that the respondent Corporation has not issued any notice to the petitioner for eviction as prescribed in the aforesaid clause.

3.12) Learned Senior Advocate for the petitioner by way of alternative submission referred to clause 28 of the Page 16 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT Scheme of 2018 which provides for criteria for relocation. Clause 28 reads as under :

"28. Criteria for re­location.­ The following criteria shall be adopted for relocation, namely:­

(i) Re­location shall be avoided as far as possible, unless there is clear and urgent need for the land in question,

(ii) affected vendors or their representatives shall be involved in planning and implementation of the rehabilitation project,

(ii) affected vendors shall be relocated so as to improve their livelihoods and standards of living or at least to restore them, in real terms, to pre­evicted levels."

3.13) Referring to sub­clause (iii) of clause 29 noted above, it was submitted that the Scheme provides that affected vendors shall be relocated so as to improve their livelihoods and standards of living or at least to restore them, in real terms, to pre­evicted levels. However respondent Corporation has not taken any steps to relocate the petitioners at any other place.

3.14) It was submitted that the petitioners were doing their business since last more than 40 years and even the respondent Corporation had collected deposits from the petitioners way back in the year 1976. Reliance was placed on deposit made by the petitioner no.1­Satish Nekram Patel. Learned Senior Advocate further submitted that in view of the provisions of Act of 2014, and more particularly, the decision taken by the respondent Corporation in the year 2004­2005 to develop the area as "FOOD COURT", the petitioners could not have been Page 17 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT evicted by the respondent Corporation in a high handed manner and in view of the past history, the petitioners can never said to be encroachers and at the most the petitioners are permitted persons for carrying on business in the food street of Law garden since last more than 40 years.

3.15) Learned Senior Advocate for the petitioners placed reliance upon the decision of Supreme Court in case of Maharashtra Ekta Hawkers Union and anr. v. Municipal Corporation, Greater Mumbai and others reported in 2013 AIR SCW 5928. It was submitted that the Apex Court framed the Scheme for hawkers in the said judgment which is required to be implemented by the respondent Corporation. He referred to paragraphs no. 4, 5 and 7 of such judgment which read as under :

"4. Unfortunately, the street vendors/hawkers have received raw treatment from the State apparatus before and even after the independence. They are a harassed lot and are constantly victimized by the officials of the local authorities, the police, etc., who regularly target them for extra income and treat them with extreme contempt. The goods and belongings of the street vendors/hawkers are thrown to the ground and destroyed at regular intervals if they are not able to meet the demands of the officials. Perhaps these minions in the administration have not understood meaning of the term "dignity" enshrined in the preamble of the Constitution.

5. The constant threat faced by the street vendors/ hawkers of losing their source of livelihood has forced them to seek intervention of the Courts across the country from time to time. In last 28 years, this Court has struggled to find a workable solution of the problems of street vendors/ hawkers on the one hand and other sections of society including residents of the localities/places where street vendors/hawkers operate Page 18 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT and delivered several judgments including Bombay Hawkers' Union vs. Bombay Municipal Corporation (1985) 3 SCC 528, Sodan Singh vs. New Delhi Municipal Committee (1989) 4 SCC 155, Maharashtra Ekta Hawkers Union vs. Municipal Corporation, Greater Mumbai (2004) 1 SCC 625, Maharashtra Ekta Hawkers Union vs. Municipal Corporation, Greater Mumbai (2009) 17 SCC 151, Maharashtra Ekta Hawkers Union vs. Municipal Corporation, Greater Mumbai (2009) 17 SCC 231 (this order was passed on 30.07.2004 but was printed in the journal only in 2009) and Gainda Ram vs. Municipal Corporation of Delhi (2010) 10 SCC 715, but the situation has not changed in last four decades. Rather, the problem has aggravated because of lackadaisical attitude of the administration at various levels and the legislative instruments made many decades ago have become totally ineffective.

xxx

7. In Maharashtra Ekta Hawkers Union vs. Municipal Corporation, Greater Mumbai (supra), which was decided on 9.12.2003, a two Judge Bench referred to the judgments in Olga Tellis vs. Bombay Municipal Corporation (1985) 3 SCC 545, Sodan Singh vs. New Delhi Municipal Committee (supra), the recommendations made by the Committee constituted pursuant to an earlier judgment and observed: "10. The above authorities make it clear that the hawkers have a right under Article 19(1)(g) of the Constitution of India. This right, however, is subject to reasonable restrictions under Article 19(6). Thus hawking may not be permitted where, e.g. due to narrowness of road, free flow of traffic or movement of pedestrians is hindered or where for security reasons an area is required to be kept free or near hospitals, places of worship etc. There is no fundamental right under Article 21 to carry on any hawking business. There is also no right to do hawking at any particular place. The authorities also recognize the fact that if properly regulated, the small traders can considerably add to the convenience and comfort of the general public, by making available ordinary articles of everyday use for a comparatively lesser price. The scheme must keep in mind the above principles. So far as Mumbai is concerned, the scheme must comply with the conditions laid down in Bombay Hawkers' Union case (1985) 3 SCC

528. Those conditions have become final and there is no Page 19 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT changed circumstance which necessitates any alteration." The Court then enumerated the following restrictions and conditions subject to which the hawkers could do business in Mumbai:

"(1) An area of 1 m × 1 m on one side of the footpath wherever they exist or on an extreme side of the carriageway, in such a manner that the vehicular and pedestrian traffic is not obstructed and access to shops and residences is not blocked. We further clarify that even where hawking is permitted, it can only be on one side of the footpath or road and under no circumstances on both sides of the footpaths or roads. We, however, clarify that aarey/sarita stalls and sugarcane vendors would require and may be permitted an area of more than 1 m × 1 m but not more than 2 m × 1 m.

(2) Hawkers must not put up stalls or place any tables, stand or such other thing or erect any type of structure.

They should also not use handcarts. However, they may protect their goods from the sun, rain or wind. Obviously, this condition would not apply to aarey/sarita stalls. (3) There should be no hawking within 100 metres from any place of worship, holy shrine, educational institutions and hospitals or within 150 metres from any municipal or other markets or from any railway station. There should be no hawking on footbridges and overbridges. Further, certain areas may be required to be kept free of hawkers for security reasons. However, outside places of worship hawkers can be permitted to sell items required by the devotees for offering to the deity or for placing in the place of worship e.g. flowers, sandalwood, candles, agarbattis, coconuts etc. (4) The hawkers must not create any noise or play any instrument or music for attracting the public or the customers.

(5) They can only sell cooked foods, cut fruits, juices and the like. We are unable to accept the submission that cooking should be permitted. We direct that no cooking of any nature whatsoever shall be permitted. Even where cooked food or cut fruits or the like are sold, the food must not be adulterated or unhygienic. All Municipal Licensing Regulations and the provisions of the Prevention of Food Adulteration Act must be complied with.

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(6) Hawking must be only between 7.00 a.m. and 10.00 p.m. (7) Hawking will be on the basis of payment of a prescribed fee to be fixed by BMC. However, the payment of prescribed fee shall not be deemed to authorize the hawker to do his business beyond the prescribed hours and would not confer on the hawker the right to do business at any particular place.

(8) The hawkers must extend full cooperation to the municipal conservancy staff for cleaning the streets and footpaths and also to the other municipal staff for carrying on any municipal work. They must also cooperate with the other government and public agencies such as BEST Undertaking, Bombay Telephones, BSES Ltd. etc. if they require to lay any cable or any development work. (9) No hawking would be permitted on any street which is less than 8 metres in width. Further, the hawkers also have to comply with the Development Control Rules, thus, there can be no hawking in areas which are exclusively residential and where trading and commercial activity is prohibited. Thus hawking cannot be permitted on roads and pavements which do not have a shopping line. (10) BMC shall grant licences which will have photos of the hawkers on them. The licence must be displayed, at all times, by the hawkers on their person by clipping it on to their shirt or coat.

(11) Not more than one member of a family must be given a licence to hawk. For this purpose BMC will have to computerize its records.

(12) Vending of costly items e.g. electrical appliances, video and audio tapes and cassettes, cameras, phones etc. is to be prohibited. In the event of any hawker found to be selling such items his licence must be cancelled forthwith. (13) In areas other than the non­hawking zones, licences must be granted to the hawkers to do their business on payment of the prescribed fee. The licences must be for a period of 1 year. That will be without prejudice to the right of the Committee to extend the limits of the non­hawking zones in the interests of public health, sanitation, safety, public convenience and the like. Hawking licences should not be refused in the hawking zones except for good Page 21 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT reasons. The discretion not to grant a hawking licence in the hawking zone should be exercised reasonably and in public interest.

(14) In future, before making any alteration in the scheme, the Commissioner should place the matter before the Committee who shall take a decision after considering views of all concerned including the hawkers, the Commissioner of Police and members of the public or an association representing the public.

(15) It is expected that citizens and shopkeepers shall participate in keeping non­hawking zones/areas free from hawkers. They shall do so by bringing to the notice of the ward officer concerned the presence of a hawker in a non­ hawking zone/area. The ward officer concerned shall take immediate steps to remove such a hawker. In case the ward officer takes no action, a written complaint may be filed by the citizen/shopkeeper to the Committee. The Committee shall look into the complaint and if found correct, the Committee will with the help of police remove the hawker. The officer in charge of the police station concerned is directed to give prompt and immediate assistance to the Committee. In the event of the Committee finding the complaint to be correct it shall so record. On the Committee so recording an adverse remark re failure to perform his duty will be entered in the confidential record of the ward officer concerned. If more than three such entries are found in the record of an officer it would be a ground for withholding promotion. If more than six such entries are found in the records of an officer it shall be a ground for termination of service. For the work of attending to such complaints BMC shall pay to the Chairman a fixed honorarium of Rs 10,000 p.m. (16) The scheme framed by us will have a binding effect on all concerned. Thus, apart from those to whom licences will now be issued, no other person/body will have any right to squat or carry on any hawking or other business on the roads/streets. We direct that BMC shall bring this judgment to the notice of all courts in which matters are now pending. We are quite sure that the court(s) concerned shall then suitably vacate/modify its injunction/stay order."

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3.16) Reference was made to the decision of Kerala High Court in case of Thankappan, s/o. Kiliyan v. the District Collector, Trivandrum [Judgment dated 5th March, 2015 in WP(C) No. 33114/2014(L)] to submit that the petitioners have right to continue the business until and unless the petitioners are evicted in accordance with the procedure contemplated in the Act of 2014 or the Scheme formulated for street vendors by the State Government. It was therefore, submitted that the respondents could not have evicted the petitioners de­hors the provisions of the Act of 2014. Learned Senior Advocate for the petitioners also relied upon the decision of Madras High Court in case of B. Noor Ahmed v. State of Tamil Nadu (judgment dated 30th September, 2015 in W.P. No.18397/2014 and connected petitions) to contend that the petitioners are protected under the statutory provision of sub­section(3) of section 3 of the Act of 2014 and as such till the Town Vending Committee is constituted under the provisions of the Act of 2014 and a survey is made in accordance with the Street Vendor Scheme, the petitioners could not have been evicted from their place of business or trade.

3.17) Learned Senior Advocate for the petitioners also contended that survey report produced on record at Annexure­R­IV along with the affidavit in reply filed by the respondents is not in dispute. It was therefore, submitted that as per the said survey, the petitioners are entitled to be protected under the provisions of the Act of 2014. It was submitted that as the petitioners were existing street vendors identified in survey which is produced on record by the respondents, the respondents were required to Page 23 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT prepare a plan for street vending as per section 21 of the Act of 2014 to promote the vocation of street vendors covering the matters contained in the First Schedule to the Act of 2014. The First Schedule provides for details as to how the plan for street vending would be implemented so as to not to declare any existing market or a natural market as identified under the survey as a non vending zone as per clause (3) (a) of the First Schedule. Reliance was placed on the definition of "natural market" as per section 2(1)(e) of the Act of 2014 to contend that the petitioners are street vendors of natural market where they were carrying on their business traditionally for sale of their food products since last more than 40 years.

3.18) It was submitted that the petitioners are entitled to be allotted a place to carry on their business in the street near the Law garden area of Ahmedabad and eviction of the petitioners from their place of business is illegal.

4. On the other hand, learned Senior Advocate Mr. Prashant Desai assisted by Mr. Satyam Chhaya for the respondent no.1 submitted that the petition is not maintainable as the petitioners were evicted in the month of August 2018 whereas the petition is filed in February, 2019.

4.1) Reference was made to the averments made in the affidavit in reply filed on behalf of the respondent Corporation to submit that in view of the provisions of the Gujarat Provincial Municipal Corporation Act, 1949 ("the Act of 1949" for short), the respondents were entitled to remove any encroachment from the public road and Page 24 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT therefore, the impugned action of the respondent Corporation is just and proper and the petitioners are not entitled to continue with their occupation at a particular site which is adversely affecting smooth vehicular traffic and it would put public at large to inconvenience.

4.2) It was submitted that the petitioners have failed to establish any right and/or constitutional right infringed in view of action of the respondent Corporation.

4.3) It was further submitted that the petitioners do not have any vested right to continue with their illegal occupation/encroachment at the site which is popularly known as "Law garden Khani Pini Bazar".

4.4) Reliance was placed upon the report dated 13th September, 2000 for removing the encroachment in the aforesaid area pursuant to order passed by this Court in Special Civil Application No.6258/2000.

4.5) It was therefore, submitted that the petitioners were removed from their place of business, time and again, but the petitioners ignoring such removal have again encroached upon the same place by installing their permanent or temporary Food­stalls. Laaries etc. Therefore, the respondent Corporation in the month of August 2018, again removed such encroachments made by the petitioners with a view to develop the area of Law garden and to create Modern Urban Street popularly known as "Happy Street".

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4.6) Learned senior advocate thereafter referred to plan and proposed design of "Happy Street" produced at Annexure­R­II with the affidavit in reply and submitted that as per the planning made by the respondent Corporation, during day hours, there would be parking on both the sides of the road and during day hours around 446 two wheelers and 35 four wheelers would be parked at the proposed site. During the evening hours, on one side, 25 food vans would get installed and the parking would be permitted only one side i.e. on the opposite side of the compound wall of NCC And about 212 two wheelers and 21 four wheelers would be accommodated in the parking at site. The TP road would remain open for smoother vehicular traffic.

4.7) It was submitted that over and above such arrangements, there would be enough space for pedestrian on both the sides and even one cycle track would be provided.

4.8) Learned Senior Advocate for the respondent no.1 relying upon the tender notice issued on 5th November, 2019 by the respondent Corporation inviting global tenders for placing the food van in "Happy Street", submitted that detailed guidelines in the form of "Food Van policy" is also prescribed by the respondent Corporation.

4.9) It was submitted that the tender was issued in favour of "Aditya Built Con" after completing detailed formalities and after inviting competitive bids for civil work which would cost Rs.4.25 Crore. It was submitted that the Page 26 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT project work is near completion and tender formalities are also over.

4.10) It was submitted that in similar petition being Special Civil Application No. 2713/2019, similarly situated persons have also applied for tender and the Corporation would give preference to such persons if their bid is equivalent to the highest bid in the tender. It was submitted that if any of the petitioners of this petition would have applied in the tender process, similar treatment would be given to them also.

4.11) It was further submitted that the contentions raised on behalf of the petitioners regarding the Act of 2014 is concerned, the petitioners cannot claim any benefit under the Act of 2014 as the petitioners are not street vendors being small traders who had small Laaries or stalls and doing business of self employment. Reliance was placed on map and photographs along with the data showing the area which was occupied by the concerned petitioners annexed as Annexure­R­III collectively with the affidavit in reply. Referring to such data and photographs, learned Senior Advocate submitted that such map was prepared before undertaking last drive of removal of encroachment in the area in the year 2018 and on bare perusal of such map it shows that the petitioners are not entitled to claim any right or privilege under the Act of 2014.

4.12) Learned Senior Advocate for the respondent no.1 thereafter referred to speech of Dr. Girija Vyas, the Minister of Housing and Urban Poverty Alleviation at the Page 27 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT time of moving the bill before the enactment of the Act of 2014, wherein it is stated as under :

"Street vendors constitute an integral part of our urban economy. Street vending is not only a source of self­employment to the poor in cities and towns but also a means to provide "affordable" as well as "convenient" services to a majority of the urban population, especially the common man. Street vendors are often those who are unable to get regular jobs in the remunerative formal sector on account of their low level education and skills. They try to solve their livelihoods issues through their own meager financial resources and sweat equity. Given the pace of urbanization and the opportunities presented through the development of urban areas, the growth of street vendor's population is likely to have an upward trend." She said "it is vital that these vendors are enabled to pursue their livelihoods in a congenial and harassment free atmosphere. Inclusive growth strategy adopted by the 11th and 12th Five Year plan calls for a facilitating mechanism for street vending to aid economic growth and inclusion simultaneously."

4.13) Learned senior advocate thereafter referred to the provisions of the Act of 2014, rules and scheme framed there under to contend that object of Act of 2014 is to give benefit to the small vendors who are doing their business on street and engaged in the vending of various articles, goods etc. It was therefore, submitted that the petitioners cannot claim any right or privilege under the Act of 2014, as the petitioners are not covered within the scope and ambit of the same and the Act of 2014 is not enacted to give benefit to such persons like the petitioners. Reliance was placed on the factual averments made in the affidavit vis­a­vis the case of the petitioners in paragraph no.9 which reads as under :

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"9.It is submitted that totality of the facts would suggest that some of the petitioners herein were occupying more than one stand at site in question and some of them were doing business at single stand. Copy of the chart showing the details of petitioner wise vis­a­vis the details of type of business is annexed herewith and marked as ANNEXURE­IV to this reply. Bare perusal of the above referred chart along with Annexure­II it would make it clear that none of the petitioner can be said to be street vendors in furtherance to the aim and object of the Act, 2014 and, therefore, captioned petition filed by the petitioner is not tenable under the law. It would not be out of place to mention here that during the ongoing survey, out of 63 petitioners, in 2018, 39 petitioners were found and, therefore, data of such 39 petitioners were incorporated in survey of 2018. In earlier survey of the year 2017, there were 42 out of 63 and the said number was reduced to 39 in the survey of the year 2018. It would not be out of place to mention here that above referred identification in the ongoing survey is tentative and identification of street vendors subject to preparation of final street vending plan in tune with the provisions of the Act read with the Rules. Now, street vendors are identified just to collect data and ultimately considering vendors who would be benefited under the provisions of the Act, 2014, would be finalized subject to their entitlement in tune with provisions which may be enacted under the final street vending plan in consonance with the provisions of the Act read with the Rules. It is submitted that in the facts of the case, none of the petitioners would be in a position to satisfy criteria of Section 5 of the Act, 2014. Thus, in the facts of the case, the petitioners cannot claim any benefit and / or provision under the Act, 2014 as petitioners are not covered within scope and object of the Act, 2014. So far as the GPMC Act­1949 is concerned, petitioner cannot claim any privilege as the respondent corporation Page 29 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT is not only entitled but under obligation to remove any encroachment from public road and petitioners are not in position to show any iota of evidence which suggests that petitioners were holding any valid license to vend at particular place by the respondent Corporation. Thus, captioned petition is unsustainable and the same is required to be dismissed in limine."

4.14) It is therefore, prayed that the petitioners cannot claim any relief as prayed for even as per the provisions of the Act of 1949 as the respondent Corporation is empowered to remove any encroachment from any public road and/or public place. It was contended that the respondent Corporation has all the rights to create "Happy Street" for better planning of the city and if the petitioners so wish, they may also participate in the proposed auction for allocation of space in "Happy Street". It was therefore, submitted that the petitioners have no vested right to claim any privilege as prayed for in the petition.

4.15) Learned Senior Advocate for the respondent no.1 thereafter relied upon the decision in case of Devendra Jashubhai Raval v. Ahmedabad Municipal Corporation reported in 2001 (2) GLH 414 to point out that in similar facts, the petition was filed before this Court, wherein Division Bench of this Court has recorded past history as under :

"2. These two writ petitions are moved under Article 226 of the Constitution of India by the petitioners of both the petition. The petitioner of Spl.C.A. No. 9843/2000 has prayed to issue a writ of mandamus or a writ in the nature of mandamus Page 30 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT or any other appropriate writ, order or directions declaring the action of the respondent Ahmedabad Municipal Corporation (hereinafter referred to as "AMC" or the "Corporation") of removing the permitted articles/structures from the area being No. 3/1 of Larri Stand No.3 in Final Plot No. 430 (Part) of Ellisbridge TP Scheme No.3 of the petitioner including paving, electrical installations, water connection and fixtures, as being illegal and unconstitutional and has also further prayed to restrain the respondent Corporation from obstructing the petitioner from carrying on business in accordance with the permissions and resolutions of the respondent in this behalf from time to time. So far as the petitioner of Spl.C.A. No.7823/2000 is concerned, it has been prayed to issue a writ of mandamus directing the respondents to implement the scheme (hereinafter referred to as the compromise formula") approved by this Court on 22.4.1987 and approved by the Supreme Court of India on 6.1.1988 as referred to in the said petition. It has been also prayed that a special body to implement the aforesaid compromise formula within existing administrative structure of the respondents and further prayed to restrain the respondents from removing the hawkers doing business through larries, gallas and pitches in hawking zones declared in the compromise formula.

xxx 5(i). The facts revealed in both the petitions are having some different shades. We would like to narrate facts in brief for the sake of convenience. The petitioner of Spl.C.A.9843/2000 is one of the allottees of Larri Stand No.3 situated near Law Garden in Final Plot No. 430 of T.P.Scheme No.3 of Ellisbridge. He has challenged legality of the action of the respondent Corporation of removing permitted articles and structures from his larri­ stand No.3/1 allotted to him contending that this action of the respondent Corporation is illegal, harsh, excessive, without jurisdiction and without authority of law and is in breach of principles of Page 31 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT natural justice. It is further contended that the action is unconstitutional and void and the same is in violation of Article 19(1)(g) of the Constitution of India.

(ii) It is contended that since 1956, area around Law Garden was permitted to be used for the purpose of vending eatables and on 20.10.1976, Standing Committee of the respondent Corporation passed Resolution No. 1706 proposing larri­stand adjacent to Law Garden which could accommodate 72 larriwalas. This resolution was modified on 18.10.1977 wherein it was resolved that a strip of land admeasuring about 10 ft. in depth be carved out from garden area and the same may be used for the purpose of constructing larri­stand. It was also decided that allottee of larri­stand would have facilities of light, water, drainage and paved level ground and 36 vendors were to be accommodated in that area. We have carefully perused the aforesaid resolutions produced before us in the context of other material available on record and the contentions raised by the respondent Corporation. The petitioner, on the day on which action was taken, was doing business of selling Icecream & Kulfi in the name and style of Sahajanand Icecream & Kulfi Centre and he is doing business on the said place since more than 20 years. Similarly, other 35 persons who were allotted area were also using the same for the purpose of their business and are paying sum of Rs.900/ per annum to the respondent Corporation on demand. The petitioner was also granted registration by Police Commissioner, Ahmedabad city for doing business in the area from 5.00 P.M. to 12.30 P.M. from 17.8.1979 and thereafter business period was extended from 12.30 P.M. to 2.00 A.M. during festival season and ceremonial days.

(iii) According to the petitioners, AMC recommended to put up permanent structure in Page 32 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT view of the growing popularity in the area somewhere in the year 1982­83 and a resolution to that effect was also passed. In the year 1983, AMC imposed certain conditions and directed to take back respective larries after business hours which resulted into litigation and Spl.C.A No. 3513 of 1983 was filed and prohibitory interim order was prayed to the effect that AMC be directed not to enforce such condition. Thereafter, in view of the representation made on 8.8.1983, the said petition came to be withdrawn. Representation made by Larri Owners Association of the area was rejected in the month of March 1984. According to the petitioners, as the scheme for permanent stall was under contemplation, representation made on 8.8.1983 was rejected.

(iv) In the year 1991­92, AMC was again moved and it was submitted that larri owners may be provided facility of electric connection and ultimately, by a resolution dated 16.1.1992 bearing No. 1782 passed by the Standing Committee of AMC, it was resolved to grant No Objection Certificate (NOC) to the petitioners and other persons carrying on business in Law Garden area. It is contended that certain observations of the aforesaid resolution indicate that larri stand was a legal stand, had facilities of paving, water and drainage etc. Considering the fast development, AMC decided to issue NOC vide aforesaid resolution and petitioners have annexed said resolution at Annex.F to the petition. NOC issued by AMC was conditional and as per one of the conditions of NOC, the petitioners submitted an undertaking for not claiming compensation in the format required by the AMC. It is averred that irrespective of the set of facts, somewhere in the year 1992­93, a demolition drive was initiated by AMC in view of large number of vendors beyond 36 in number initially allowed to carry on their business in the area.

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(v) The petitioner and other allottees, on apprehension, filed a Civil Suit No. 168/93 before the City Civil Court and after hearing the parties, learned Judge, City Civil Court held that plaintiffs were running their business in accordance with law and there was no encroachment on road. However, the Court reserved liberty to AMC to demolish illegal construction after issuance of notice. Copy of the order passed below application exh.5 in the aforesaid civil suit is also available on record. The matter, earlier, was taken before the Apex Court. It is averred that the petitioner is not aware about any such earlier proceedings initiated before the Supreme Court of India in respect of the area which is subject matter of the petition.( Para­ 9 of the petition ).

4.16) It was submitted that after recording the aforesaid facts, Division Bench dismissed the petition filed by similarly situated persons like the petitioners and therefore, on the same grounds present petition is also liable to be dismissed. Reliance was placed on paragraph no.19 of the judgment which reads as under :

"19. So far as petition being Spl.C.A. No.8689/2000 is concerned, as aforesaid, though the prayer of the petitioner is for a direction to implement the scheme as aforesaid, indirectly it is prayed to restrain respondents from removing hawkers etc. doing business in hawking zone. It is not the case of the petitioner that though they are in hawking zone, they are being forcibly evicted. In view of the settled legal position considered and referred to by us in para­8(v) above along with other judicial pronouncements, prayers sought for in this petition cannot be granted. We agree that the petition is preferred by the petitioner in the capacity of Genral Secretary of the Association, but as observed above, in view of settled legal position propounded in various decisions of the different High Courts as well as Apex Court which have Page 34 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT been considered and referred to by us, the only direction which can be given by this Court is that hawker and/or pitch vendor shall individually as a member of the Association, make application before the appropriate authority, if he so desires, for appropriate relief and/or for alternative place convenient to the Corporation in the hawking zone. It is further observed that if such an application is made, the same shall be decided on merits and in accordance with law. Hence, this petition is also dismissed on the same reasons. Rule is discharged."

4.17) It was submitted that as such the issues raised by the petitioners are governed by the aforesaid judgment of this Court. However, the petitioners have preferred this petition by relying upon the provisions of Act of 2014. In this context, learned Senior Advocate for the respondent corporation relied upon the judgment of Division Bench of this Court dated 6th September, 2018 in Letters Patent Appeal No.986/2018 in Special Civil Application No.10854/2018 in case of Vakatar Samatbhai Ghusabhai v. State of Gujarat.

4.18) Relying upon the aforesaid judgment, it was submitted that admittedly the petitioners were having structures which were in the nature of permanent but cannot be termed as temporary at the place of their business at the relevant time and therefore, the petitioners cannot claim to be street vendors under the provisions of Act of 2014. It was therefore, submitted that all the contentions raised by the petitioners are more or less are concluded in the aforesaid judgment of the Division Bench. In view of the aforesaid decision, it was submitted that the petitioners are not entitled to any protection under the Page 35 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT provisions of Act of 2014.

4.19) Learned Senior Advocate for the respondent corporation thereafter relied upon the decision of Division Bench of Bombay High Court in case of Vile Parle Kelvani Mandal v. Municipal Corporation of Greater Mumbai reported in 2015 SCC Online Bom 5546, more particularly, on paragraphs no. 21 and 22 to submit that after considering the decision of Apex Court in case of Maharashtra Ekta Hawkers Union v. Municipal Corporation of Greater Mumbai (supra) and after considering the National Policy on Urban Street Vendors, 2009 which has resulted into the Act of 2014 and after analysing the provisions of Act of 2014, Division Bench of Bombay High Court has held as under :

"46. Unfortunately, if the State Government is lagging far behind as far as the implementation of the Street Vendors Act is concerned. The letter dated 4 th August, 2014 placed on record by the learned AGP addressed by the Joint Secretary of the Urban Department shows that neither the scheme for street vendors as contemplated by Sub­section (1) of Section 38 has been formulated nor the Rules have been framed under Sub­section (1) of Section 36. The time for framing the scheme contemplated by Section 38 expired on 31st October, 2014 and the time provided in Sub­section (1) of Section 36 for framing the Rules expired on 31st April, 2014. Thus, both the mandatory provisions have not been complied with by the State Government within the time specified therein. As the Rules have not been framed, Town Vending Committees have not been been appointed. As Town Vending Committees have not been appointed, plan for street vending in Page 36 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT terms of Sub­section (1) of Section 21 has not been prepared. As the Town Vending Committees have not been appointed, a survey under Sub­section (1) of Section 3 cannot be carried out and consequently certificates of vending cannot be issued. Therefore, in view of Sub­section (3) of Section 3, no existing street vendor as on 1st May 2014 can be evicted or relocated. However, those Street Vendors who have illegally started operating after 1 st May, 2014 are not protected by Sub­Section (3) of Section 3 and such Street Vendors will have to be evicted. The existing Street vendors cannot be evicted or relocated till the survey is carried out in accordance with Sub­section (1) of Section 3 and the certificates of vending are issued in terms of Sub­section (1) of Section 4. Considering the fact that the object of the Street Vendors Act is to protect the Urban Street Vendors, Sub­section (3) of Section 3 will have to be held as mandatory.

47. We have already made a reference to the definition of "street vendor" in clause (l) of Section 2. "street vendor" means a person engaged in vending of articles, goods, wares, food items or merchandise of everyday use or offering services to the general public, in a street, lane, side walk, footpath, pavement or any other public place. Such a street vendor can operate from a temporary built up structure or by moving from place to place. Clause (l) of Section 2 clarifies that street vendor includes hawker, peddler, squatter and all other synonymous terms which may be local or region specific. There are two categories of persons who can be included in the category of street vendors. One category is of persons engaged in vending of articles, goods, wares, food items or merchandise of everyday use. Second category of persons is offering services to the general public such as running telephone booths.

48. The question is what is the meaning of vending. This is in the context of the fact that Page 37 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT the person engaged in vending of food items also becomes a street vendor. We have perused the dictionary meaning of the word vending in various dictionaries. In the Oxford English dictionary, the meaning of the verb "vend" is to offer small items for sale. In Merriam Webster dictionary, the meaning of the verb "vend" is to sell especially as a hawker or peddler. The meaning of the word "vending" in Cambridge dictionary is the selling of goods. Thus, the vending contemplates sale. By no stretch of imagination, the vending of food items will include preparation and/or cooking of food items. In our opinion a person who cooks or prepares food in the stall and sells it is not included in the definition of street vendor as the definition includes a person who is engaged in vending of articles, food items or a person who is offering services to general public. In fact all the directions issued by the Apex Court which we have considered earlier, provide that a hawker is not entitled to cook food at the place of hawking and sell it there. Thus, a street vendor can sell only ready food items, but he is not entitled to cook or make food items at the place of vending. Cooking of food by a street vendor at the place of vending is not at all contemplated by the Street Vendors Act. Thus, those Street Vendors who are cooking food at the place of vending will not be covered by the definition of the Street Vendors under the Street Vendors Act. Hence, such vendors are not entitled to the protection under the Street Vendors Act.

49. For preparation and cooking of food items for sale, licenses are required under various statutes. Therefore, persons engaged in cooking and/or preparation of food items in a street, lane, side walk, footpath, pavement or any other public place either from a temporary built structure or by moving from place to place have not been included in the definition of Street Vendor under clause (l) of Section 2 and Page 38 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT therefore, such person is not protected under the Street Vendors Act. Only those vendors who are otherwise covered by the definition of Street Vendors who are only selling ready food items will be protected under the Sub­section (3) of Section 3 and Sub­section (l) of Section 12 of the Street Vendors Act. However, if the persons who are cooking or preparing food are otherwise holding licenses required by various statutes and are otherwise lawfully carrying out business will be protected provided their structures are lawful. But they will not be protected under the Street Vendors Act unless and until they give up the activity of cooking. Therefore, action will have to be initiated against the Street Vendors who are cooking food at the place of vending."

4.20) It was therefore, submitted that the petitioners cannot be covered under the provisions of the Act of 2014 as the persons who are cooking/preparing food or are otherwise holding licenses required by various statutes would be protected provided their structures are lawful. It was held by the Court that the petitioners would not be protected under the Act of 2014 unless and until they give up the activity of cooking. It was therefore, submitted that in facts of the present case the petitioners were undertaking preparation of food items and therefore, the petitioners' actions cannot be considered as street vending under the provisions of the Act of 2014.

4.21) Learned Senior Advocate thereafter, referred to the provisions of sections 230, 231(a)(b) and (c) of the Act of 1949 to contend that respondent Corporation is empowered to remove encroachment and the petitioners were removed from their place of business under the Page 39 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT provisions of Act of 1949 and not under the provisions of Act of 2014.

4.22) Learned Senior Advocate thereafter submitted that the respondent Corporation has identified 42 plots within the city limits of Ahmedabad as temporary measure to relocate the street vendors. Reliance was placed on the data provided in Annexure­R­V to the affidavit in reply. It was submitted that aforesaid plots are identified as temporary measure and after preparation of final street vending plan, same would be implemented in toto. It was pointed out that as per the provisions of Act of 2014, street vendors are not entitled to get alternative space as per their wish and will and only Town Vending Committee is required to decide the area or space which would be ultimately allotted to such street vendors. Therefore, the petitioners even if are considered as street vendors, cannot claim the same space which they were occupying earlier in the street near Law garden.

5. In rejoinder, learned Senior Advocate Mr. Sudhir Nanavati submitted that the decision of this Court in case of Devendra Jashubhai Raval (supra) would not be applicable as the said decision was rendered in relation to hawking zone. But the petitioners have now relied upon the provisions of the Act of 2014 which are not implemented by the respondent corporation. It was further submitted that the Act of 1949 is a State Act whereas the Act of 2014 is the Central Act and as such the provisions of Central Act would prevail over the State Act and it is the fundamental right of the petitioner as street vendor which Page 40 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT is required to be protected as per the provisions of the Act of 2014. With regard to the decision of Division Bench rendered in in case of Vakatar Samatbhai Ghusabhai in Letters Patent Appeal No.986/2018, it was submitted that the Rules under the Act of 2014 are not yet framed and therefore this Court has held that the provisions of the Act are not applicable. Learned Senior Advocate distinguished the said judgment on the ground that in facts of that case, streets were covered by regular walls, roofs, flooring, etc. whereas in the facts of the petitioners, no such permanent structures were existing and therefore, the said decision would not be applicable in facts of the case. With regard to the decision of Bombay High Court in case of Vile Parle Kelvani Mandal (supra), it was submitted that the Bombay High Court directed the Municipal Corporation to initiate action of eviction after giving notice and after following the due process of law whereas in the facts of the present case, no such notice was given.It was therefore, submitted that Bombay High Court has never objected to preparation of food by the street vendors. Therefore, the petitioners could not have been evicted by the respondent Corporation in such a high handed manner in flagrant breach of provisions of the Act of 2014 and therefore, such action of the respondent Corporation is required to be quashed and set aside.

6. Having heard learned counsel for the respective parties and having gone through the materials on record, it appears that this is one of the unique cases, wherein the petitioners are agitating for their rights of livelihood for more than four decades. It appears that since 1976, the petitioners Page 41 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT concerned were carrying on their business to provide street food to the people of Ahmedabad in the street near Law garden which is popularly known as "Khau Gali" or "Khani Pini Bazar". The history of past events narrated here in above, demonstrate that the petitioners or their ancestors were in business of providing street food for more than 40 years. Time and again, the actions were taken by the respondent Corporation by removing the petitioners and similarly situated persons from the area either under the provisions of Act of 1949 and/or under the orders of the Court and again the petitioners and similarly situated persons started doing their business in the same place with or without the consent of the respondent Corporation. From the material on record, it emerges that the respondent Corporation also was interested to see that street near Law garden is developed as "FOOD COURT"

since 1991 which has never been materialised. Thereafter, in the year 2004­2005, it was resolved by the respondent Corporation to develop the "FOOD COURT" in the said area with a view to develop the Law garden area as a tourist and commercial spot. However, after efforts were made by the respondent Corporation since 2004­2005 onwards, nothing materialised till 2018 when it was decided to develop the said area as "Happy Street" and the petitioners were evicted from the place of their business in August 2018 so as to implement the plan prepared by National Institute of Design.

7. On perusal of the map produced at Annexure­R­III along with the affidavit in reply and the photographs of the structures put up by the petitioners which were removed Page 42 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT by the respondent Corporation in August 2018, it is revealed that the petitioners cannot be said to be small traders who had small Laaries or stalls. Admittedly, the petitioners encroached upon the place by putting up temporary construction in the form of sheds which are in the nature of permanent but cannot be termed as temporary as claimed by the petitioners. It is also admitted fact that this Court has time and again asked the respondent Corporation to remove the encroachments in the aforesaid area near Law garden and accordingly, the respondent Corporation had taken steps since year 2000 but the petitioners have again encroached the said place in flagrant breach of the orders passed by this Court.

8. Therefore, in view of such a situation, the petitioners now cannot pray for protection under the provisions of the Act of 2014 under the definition of street vendor as provided in section 2(1)(l) or under section 3(3) of the Act of 2014. It is also admitted fact that no Town Vending Committee as defined in section 2(1)(m) of the Act is formed as per the provisions of section 22 of the Act of 2014. Section 22 reads as under :

"CHAPTER VII TOWN VENDING COMMITTEE

22. Town Vending Committee.--(1) The appropriate Government may, by rules made in this behalf, provide for the term and the manner of constituting a Town Vending Committee in each local authority:

Provided that the appropriate Government may, if considers necessary, provide for constitution of more than one Town Vending Committee, or a Town Vending Page 43 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT Committee for each zone or ward, in each local authority.

(2) Each Town Vending Committee shall consist of:--

(a) Municipal Commissioner or Chief Executive Officer, as the case may be, who shall be the Chairperson; and

(b) such number of other members as may be prescribed, to be nominated by the appropriate Government, representing the local authority, medical officer of the local authority, the planning authority, traffic police, police, association of street vendors, market associations, traders associations, non­governmental organisations, community based organisations, resident welfare associations, banks and such other interests as it deems proper;

(c) the number of members nominated to represent the non­governmental organisations and the community based organisations shall not be less than ten per cent.;

(d) the number of members representing the street vendors shall not be less than forty per cent. who shall be elected by the street vendors themselves in such manner as may be prescribed:

Provided that one­third of members representing the street vendors shall be from amongst women vendors:

Provided further that due representation shall be given to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, minorities and persons with disabilities from amongst the members representing street vendors.

(3) The Chairperson and the members nominated under sub­section (2) shall receive such allowances as may be prescribed by the appropriate Government."

9. In view of the fact that no Town Vending Committee is constituted by the appropriate Government as provided in section 22 of the Act of 2014, the implementation of the provisions of section 3(1) for survey of all existing street Page 44 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT vendors by such Town Vending committee would not arise. However, it appears that respondent Corporation has carried out a survey during the pendency of this petition and has produced on record the details of the business of the petitioners at Annexure­R­IV. From such details, it appears that some of the petitioners were occupying more than one stand at the site in question and some of them were doing business at single stand. As held by the Division Bench in case of Vakatar Samatbhai Ghusabhai in Letters Patent Appeal No.986/2018 (supra), the temporary construction as claimed by the petitioners is also not permissible under the definition of term "building" within the meaning of Act of 1949 without obtaining permission from the competent authorities. Division Bench in the said judgment held as under :

"12. Learned counsel Shri Mangukiya appearing for the appellants, by referring to the averments made in the affidavit­in­rejoinder, has stated that all the appellants have erected small temporary structures and they are doing petty businesses by selling eatables like Vada­ Pav, Khichadi, Pakoda, Paani­puri, Bhel­puri, Tea, etc., as such, they are protected by the provisions of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014.

13. Learned counsel for the appellants mainly claims protection under the definition of "street vendor", as provided under Section 2(l) of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, which reads as under:

"2. Definitions.--(1) In this Act, unless the context otherwise requires,--

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(l) "street vendor" means a person engaged in vending of articles, goods, wares, food items or merchandise of everyday use or offering services to the general public, in a street, lane, sidewalk, footpath, pavement, public park or any other public place or private area, from a temporary built up structure or by moving from place to place and includes hawker, peddler, squatter and all other synonymous terms which may be local or region specific; and the words "street vending"

with their grammatical variations and cognate expressions, shall be construed accordingly;"

Chapter­II of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, deals with regulation of street vending and under Section 3 of the Act, Town Vending Committees are to be constituted to conduct survey of existing street vendors to ensure that existing street vendors are identified and as per Section 3(3) of the Act, no street vendor shall be evicted till he is relocated as per the survey under Section 3(1) of the Act is done and Certificate of Vending is issued. Under Section 4 of the Act, every street vendor, identified as such under Section 3(1) of the Act, is entitled for Street Vending Certificate.

14. Learned counsels for the respective parties also placed on record, photographs in support of their case. It is also not in dispute, such constructions are raised in Final Plot No.121/1, Survey No.755/5/6, covered by T.P.Scheme No.5 in the Sim of Village Makarba, Ahmedabad. A perusal of the photographs clearly reveal that the structures are in the nature of permanent but cannot be termed as temporary, as claimed by the appellants. In the earlier petition, 1st appellant himself has clearly stated that the constructions are covered by walls, roofs, etc. and same was withdrawn, subsequently Special Civil Application No.10854 of 2018 is filed, along with other petitioners. In earlier petition, there was no claim Page 46 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT of "street vendor" within the meaning of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014. Such plea is raised in the subsequent petition filed in Special Civil Application No.10854 of 2018. The appellants have claimed the benefit of Section 2(l) of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014. As averred in the earlier petition, the 1st appellant himself has claimed that he is proprietor of Khetlapa Tea Stall, which is a Company registered under the Companies Act having its trademark. Even appellants No.2 to 7 were doing businesses in similar identical structures which are constructed illegally and unauthorisedly. As contended by the learned Senior Counsel Shri Prashant Desai, it is to be noticed that the definition of `building' as defined under clause­5 of Section 2 of the Gujarat Provincial Municipal Corporations Act, 1949, reads as under:

"`building' includes a house, out­house, stable, shed, hut and other enclosure or structure whether of masonry, bricks, wood, mud, metal or any other material whatever whether used as a human dwelling or otherwise, and also includes Verandahs, fixed platforms, plinths, doorsteps, walls including compound walls and fencing and the like".

From the aforesaid definition, it is clear that not only permanent structures but temporary constructions of shed, hut, etc. are also covered in the definition of `building'. In view of such broad based definition of `building', as defined under the Gujarat Provincial Municipal Corporations Act, 1949, even for constructing a temporary structure, permission is required to be obtained. Even to raise constructions temporarily, such promoter of construction shall make an application to the Ahmedabad Municipal Corporation as required under Sections 253 and 254 of the Gujarat Provincial Municipal Corporations Act, 1949, read with Sections 26 and 29 of the Gujarat Town Page 47 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT Planning and Urban Development Act, 1976.

15. Apart from the definition of `building' under the provisions of the Gujarat Provincial Municipal Corporations Act, 1949, which covers temporary structure, it is also covered in the definition of "development" as defined under clause 8 of Section 8 of the Gujarat Town Planning and Urban Development Act, 1976. "Development" as defined under the aforesaid Act reads as under:

"`development' with all its grammatical variations and cognate expressions, means the carrying out of any building, engineering, mining or other operations in, or over, or under land or the making of any material change in any building or land or in the use of any building or land, and includes layout and sub­division of any land"

It is clear from the provision of the aforesaid Act, `development' includes construction and once Scheme is approved, no one can raise construction in any Final Plot without obtaining permission as required under the law. As referred above, the constructions made by the appellants amount to constructing `building' as defined under the Gujarat Provincial Municipal Corporations Act, 1949, and also `development' as defined under the Gujarat Town Planning and Urban Development Act, 1976. Admittedly, as such constructions are not preceded by any permission, they are unauthorised and illegal.

16. It is true that the definition of "street vendor"

under Section 2(l) of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, includes and covers a person engaged in vending of articles in a private area from a temporarily built­up structure, but keeping objects of the said Act in mind, it has to be construed, that any person, claiming to be a "street vendor"

claims benefits of the said provision, such temporary structure where he is engaged in Page 48 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT vending of articles is required to be covered by permission as required under the provisions of the Gujarat Provincial Municipal Corporations Act, 1949, and also the provisions of the Gujarat Town Planning and Urban Development Act, 1976. If the said definition of "street vendor" is not construed in such a manner, it will destroy the very object and scope of the Gujarat Provincial Municipal Corporations Act, 1949. It was never the intention of the enactment of the provisions of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, to allow such temporary constructions without permission.

17. Further, on facts also, we are not satisfied that the structures are temporary as pleaded by the appellants and the 1st appellant himself in the earlier petition filed in Special Civil Application No.10575 of 2018 categorically pleaded that structures are covered by regular walls, roofs, flooring, etc. In that view of the matter and after looking at the photographs placed on record, it is clear that the constructions are Pucca constructions which are covered by the definition of `building' within the meaning of the Gujarat Provincial Municipal Corporations Act, 1949. Even assuming that the structures are temporary as pleaded by the appellants, even then, such constructions also are not permissible without obtaining permission from the competent authorities. The structures are also covered by `development' as defined under the provisions of the Gujarat Town Planning and Urban Development Act, 1976. As it is not in dispute that such structures are raised without obtaining any permission, we do not find any illegality in the notices which are impugned in the petition, which are issued by the respondent authorities in exercise of powers under Section 260(2) the Gujarat Provincial Municipal Corporations Act, 1949. Having regard to such illegal constructions, it is always open for the 2nd respondent to exercise powers for removal of unauthorised constructions. In that view of the matter, we are of Page 49 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT the clear view that the appellants are not entitled for any protection or benefit under the provisions of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, to accept their case. Having regard to reasons recorded by the learned Single Judge, we do not find any merit in this appeal. Further, it is also to be noticed that the 1st appellant is the proprietor of an incorporated Company as pleaded by himself in the earlier petition and further all other appellants are also doing businesses in Pucca constructions which are made illegally and unauthorisedly, as such, we do not find any merit in the appeal so as to interfere with the judgment of the learned Single Judge.

18. For the aforesaid reasons, this appeal is devoid of merits. Accordingly, the Letters Patent Appeal and Civil Application for stay of the impugned notices and for interim relief are dismissed."

10. Similarly, Division Bench of Bombay High Court also had an occasion to deal with such an issue in case of Vile Parle Kelvani Mandal (supra), wherein it was held as under :

"57. We have already held that persons who are cooking/ making food items in a street, lane, side walk, footpath, pavement or any other public place or private area either from a temporary built up structure or by moving from place to place, are not covered by the definition of "street vendor" under the Street Vendors Act. If such persons are carrying out business of making/preparing food items and selling, it is obvious that they are creating health hazards to the citizens. Immediate action of evicting the persons who are carrying out such illegal acts of cooking and making food will have to be initiated by the Mumbai Municipal Corporation in accordance with law. As persons who are cooking or making food are not covered by the definition of street vendor, the protection under the Street Vendors Act is not available to Page 50 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT such persons. After giving a notice, those Street Vendors who do not stop activity of cooking/ making food items at the place of their business within specified time can be evicted by the Municipal Corporation by demolition of their stalls. Those street vendors who are cooking food are causing health hazards to the citizens. They create dirt and nuisance. However, if the persons who are cooking or preparing food are otherwise holding licenses required by various statutes and are otherwise lawfully carrying out business will be protected provided their structures are lawful.

58. There is a merit in the contention of the second Petitioner in PIL No.36 of 2010 that whenever an action is proposed to be taken against illegal vendors or illegal structures, it is necessary for the Municipal Corporation to file caveats in all concerned Courts and to further ensure that such legal proceedings are promptly and properly contested. The Municipal Corporation may consider establishing a tracking system of all such litigations dealing with illegal structures.

59. 55A. Before we part with the judgment, we must quote what the Apex Court held in paragraph 8 of its decision in the case of Bombay Hawker's Union:

" .....the right conferred by Article 19(1)(g) of the Constitution to carry on any trade or business is subject to the provisions of clause (6) of that article, which provides that nothing in sub­clause

(g) of Article 19(1) shall effect the operation of any existing law insofar as it imposes, or prevents the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub­clause. The affidavits filed on behalf of the respondents show in unmistakable terms that the impugned provisions of the Bombay Municipal Corporation Act are in the nature of reasonable restrictions, in the interests of the general public, on the exercise of the right of hawkers to carry on their trade or business. No Page 51 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT one has any right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public.

Public streets, by their very nomenclature and definition, are meant for the use of the general public. They are not laid to facilitate the carrying on of private trade or business. If hawkers were to be conceded the right claimed by them, they could hold the society to ransom by squatting on the centre of busy thoroughfares, thereby paralysing all civic life. Indeed, that is what some of them have done in some parts of the city. They have made it impossible for the pedestrians to walk on footpaths or even on the streets properly so called."

(emphasis added)

60. Hence, we dispose of the Petitions by passing the following order :­ ORDER

(i) We hold that with effect from 1 st May, 2014 the directions issued by the Apex Court from time to time in Civil Appeal Nos.4156­4157 of 2002 (Maharashtra Ekta Hawkers Union and others vs. Municipal Corporation of Greater Mumbai) shall cease to apply and all existing street vendors as on 1 st May, 2014 who are covered by the definition of clause (l) of Section 2 of the Street Vendors Act are entitled to protection against eviction and relocation as provided under Sub­section (3) of Section 3 thereof. No Street Vendors who were carrying on business as on 1st May, 2014 and who are covered by the definition of Street Vendor under clause (l) of Section 2 shall be evicted or relocated by the Mumbai Municipal Corporation till the survey as specified under Sub­Section (1) of Section 3 of the Street vendors Act is carried out and the certificates of vending are issued to all Street Vendors in accordance with Sub­section (1) of Section 4 by the Town Vending Committee. This protection is applicable only to those Street Page 52 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT Vendors who were carrying on business as on 1st May 2014;

(ii) Those Street Vendors who have started street vending after the said date shall be evicted by the Mumbai Municipal Corporation in accordance with law. The action of eviction shall be initiated as expeditiously as possible;

(iii) We declare that a Street Vendor who is engaged in cooking or preparation of food items in a street, lane, side walk, footpath, pavement, public park or any other public place or private place either from a temporary built structure or by moving from place to place is not covered by the definition of street vendor under clause (l) of Section 2 of the Street Vendors Act and consequently such a vendor shall not be entitled to protection under Sub­section (3) of Section 3 so long as he is indulging in cooking or preparation of food items;

(iv) We, therefore, direct the Mumbai Municipal Corporation to initiate action of eviction in accordance with law against Street Vendors who are engaged in preparation/cooking of food items in street, lane, side walk, footpath, pavement, public park or any other public place or private area either from a temporary built structure or by moving from place to place and who do not stop cooking or making food within the time specified in a notice served to them. Action of eviction shall be initiated by the Mumbai Municipal Corporation after following due process of law against such Street Vendors immediately on expiry of a period of two months from today;

(v) We direct the Municipal Corporation to ensure that when such action of eviction is proposed, caveats shall be filed in appropriate Courts and the Municipal Corporation shall take prompt steps to contest the proceeding if filed for challenging the action of eviction. We direct the Municipal Corporation to create a tracking system for all Page 53 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT such litigations so that the same are promptly attended to;

(vi) We direct the Traffic Police to take necessary action in accordance with law for preventing indiscriminate parking of vehicles by the customers of the stalls on the said Gulmohar road and nearby streets. Sufficient Traffic Police shall be deployed on the said roads during the rush hours;

(vii) We direct the Principal Secretary of the Urban Development Department of the State Government to file affidavit setting out the outer limit within which the following actions shall be completed by the State Government :­

(a) Formulation of the scheme for street vendors under Sub­section (1) of Section 38 of the Street Vendors Act;

(b) Framing of the Rules in accordance with Section 36 of the Street Vendors Act; and

(c) Constitution of Town Vending Committees in each local authority;

(viii) The aforesaid affidavit shall be filed within a period of one month from today. Before setting out the outer limit, the State Government shall make a note that the time provided to the State Government under the Street Vendors Act has expired long back;

(ix) We direct the Mumbai Municipal Corporation to file an affidavit setting out the outer limit within which the plan for street vending shall be prepared from the date on which the Town Vending Committee is constituted for the said local authority. Such affidavit shall be filed within the period of six weeks from today. The compliance affidavit reporting compliance with the directions issued in terms of clauses (ii) and

(iv) shall be filed on or before 31st January, 2016;

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(x) For considering the compliance affidavits to be filed by the State Government and the Municipal Corporation, the Petition shall be listed on 21 st December, 2015;

(xi) We direct the Mumbai Municipal Corporation to take steps for implementation of order dated 21 st January, 2002 in Writ Petition No.1799 of 2001 immediately on expiry of a period of two months from today. Affidavit of compliance on this aspect shall be filed on or before 31st January, 2016;

(xii) The suits listed in paragraph 51 above pending in the City Civil Court at Dindoshi shall be disposed of as expeditiously as possible and in any event within a period of one year from. This direction be communicated by the Registrar (Judicial­I) to concerned Court;

(xiii) Rule issued in the above Petitions is made partly absolute on above terms. There will be no order as to costs;

(xiv) All Chamber Summons and Notice of Motion, if any, are disposed of accordingly."

11. In view of the aforesaid position of law, the petitioners are not entitled to any protection under the provisions of the Act of 2014 or under the Scheme of 2018, as the petitioners cannot be said to be street vendors as the petitioners were cooking/making food items in the aforesaid street near Law garden from their temporary built­up structure which is not covered by the definition of street vendor under the Act of 2014 as they would be creating health hazards to the citizens. Therefore, the respondent Corporation has now framed the Food Van policy applicable to mobile food sellers wherein it is provided in detail with regard to maintenance of health and hygiene to prepare the food in such mobile Food Vans. It is Page 55 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020 C/SCA/3051/2019 CAV JUDGMENT also pertinent to note that in the global tender issued by the respondent Corporation for inviting tenders for placing Food Van in "Happy Street", Food Van policy which is also annexed as Annexure­D to the tender is mandatory as part of the tender condition.

12. In view of the aforesaid fact situation, the petitioners are not entitled to get any place in the "Happy Street"

without taking part in the tender process. If any of the petitioners has taken part in the tender process, then statement made by learned Senior Advocate of respondent Corporation to the effect that such petitioners would be entitled to get preference in getting the place to keep their Food Van in "Happy Street" if the bid made by such petitioner would be equivalent to the highest bidder, would be applicable.

13. In view of the foregoing reasons, the petitioners are not entitled to any protection under the Act of 2014 from eviction from their place of business in street near Law Garden at Ahmedabad. However, in future, when respondent corporation develops any other area under the provisions of the Act of 2014, petitioners may make an application for considering their re­location which may be considered by the respondent corporation in accordance with law in view of peculiar facts of the case.

14. The petition therefore, fails and is accordingly dismissed. Rule is discharged. No order as to costs.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 56 of 56 Downloaded on : Mon Jun 15 20:23:05 IST 2020