Madras High Court
B. Noor Ahmed vs State Of Tamil Nadu on 30 September, 2015
Author: K.K.Sasidharan
Bench: Satish K. Agnihotri, K.K.Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.09.2015 CORAM: THE HON'BLE MR.JUSTICE SATISH K. AGNIHOTRI AND THE HON'BLE MR.JUSTICE K.K.SASIDHARAN W.P. No.18397 of 2014, W.P. No.18398 of 2014 W.P. No.27125 of 2014, W.P. No.28745 of 2014 W.P. No.20747 of 2014, W.P. No.34722 of 2014 W.P. No.12399 of 2015, W.P. No.12400 of 2015 W.P. No.25119 of 2014, W.P. No.17784 of 2015 W.P. No.20413 of 2015, W.P. No.11690 of 2015 W.P. No.9516 of 2011, W.P. No.18892 of 2011 W.P. No.24237 of 2014, W.P. Nos.25480 to 25483 of 2015, W.P. No.25437 to 25439 of 2015 W.P. No.25961 of 2015, W.P. No.26221 of 2015 W.P. No.25695 of 2015, W.P. No.6238 of 2015, W.P. Nos.29686 and 29687 of 2015 W.P. Nos.29777 and 29778 of 2015, W.P. No.29787 of 2015 and W.P. No.29899 of 2015 and connected Miscellaneous Petitions W.P. No.18397 of 2014: 1 B. Noor Ahmed 2 A. Masood Maideen 3 A. Bose 4 A. Shanmuganathan 5 A. Arumugam 6 M. Rahamathullah 7 M. Selvin Durai Nadar 8 A. Abdul Rahman 9 Syed Niyasudeen 10 I. Mohammed Jainudin 11 K. Rafi Ahmed 12 S. Maideen Pichai 13 P.S. Syed Hussain 14 N. Shahjahan 15 S. Gopinath 16 A. Mohammed Abu Bakkar 17 M.D. Varish 18 P. Meristan Babu 19 M. Mohammed Hakkeem 20 A. Abdul Khadhar 21 I. Kalanjiyam 22 R. Balasubramaniyam 23 P. Davidson 24 R. Gopinath 25 A. Bargis Hussain 26 Sara Abraj 27 A. Syed Oli 28 J.S. Syed Gani 29 R. Krishna Pillai 30 S. Kannan 31 B. Raja Mohammed 32 V. Gopalsamy 33 M.K.M. Kadhar Sulthan 34 A. Syed Ibrahim 35 R. Deepa 36 S. Nirmala 37 M. Raghu 38 A. Kuppusamy 39 P.A. Sahul Hameed 40 S. Devaki 41 P. Kalaivani 42 D. Ranganathan 43 A. Kasiyammal 44 R. Adhilakshmi 45 A. Rajendran 46 P. Suriyammal 47 S.Senthil 48 S. Munwar Khan 49 B. Kaleel Rahman Petitioners vs. 1 State of Tamil Nadu represented by its Secretary St. George Fort Chennai 600 009 2 The Commissioner Corporation of Chennai Rippon Buildings Chennai 3 The Commissioner of Police Chennai City Police Vepery Chennai 4. The Secretary Local Administration Department St. George Fort Chennai Chennai - 600 009 Respondents Prayer in W.P. No.18397 of 2014: Writ Petition filed under Article 226 of the Constitution of India seeking for the issuance of a writ of mandamus to direct the respondents to implement Sections 3 and 4 of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 and to form a Town Vending Committee and conduct a survey of street vendors within a stipulated time as per the provisions of the aforementioned Act and not to disturb their carrying on day to day business until the disposal of their representation dated 03.07.2014 given to the respondents above named and as per the provision of the above said Act. For petitioner in WP No.18397/2014 Mr. N.Sivakumar For RR 1 & 3 in Mr. P.H. Arvindh Pandiyan in WP No.18397/2014 Additional Advocate General assisted by Mr.P.S.Sivashanmugasundaram Special Government Pleader For R2 in Mr.V.C.Selvasekaran WP No.18397/2014 COMMON ORDER
(delivered by SATISH K. AGNIHOTRI, J.) With the consent of the learned counsel for the parties, these writ petitions are taken up for final disposal.
2 The writ petitioners, who are stated to be vendors/hawkers engaged in street trading and in some cases, the associations of such vendors/hawkers, have come up with the instant writ petitions seeking a direction to the respondents to implement, mainly, the provisions of Sections 3 and 4 of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (for short the Act).
3 In certain petitions, the petitioners have sought a direction to the respondents to implement the National Policy on Urban Street Vendors, 2009. Further, it is sought that the petitioners may not be evicted without they being allotted a proper alternative place, where, street vending/hawking, can, successfully be carried on by them.
4 In a quite a few cases, the petitioners have challenged the orders of the Chennai Corporation / Hawking Zone Committee, as the case may be, whereby and whereunder, they have been directed to vacate the shops run by them, failing which, it has been stated that their shops would be removed without prior notice.
5 Thus, albeit the prayers in this batch of 32 writ petitions have been differently worded, the issue involved herein being common and intertwined, this batch of writ petitions is considered and decided by this common order.
6 The rural populace, in search of greener pasture, migrated to urban areas to earn their livelihood, which resulted into engaging in street trading. The problem of street traders/vendors/hawkers qua their right to carry on their trade uninterruptedly by the officers, engaged the attention of the Supreme Court as well as High Courts in Saghir Ahmad vs. State of U.P.1, Bombay Hawkers' Union vs. Bombay Municipal Corporation2, Sodan Singh v. New Delhi Municipal Committee3, Maharashtra Ekta Hawkers' Union vs. Municipal Corporation, Greater Mumbai4, Maharashtra Ekta Hawkers' Union vs. Municipal Corporation, Greater Mumbai5, Maharashtra Ekta Hawkers' Union vs. Municipal Corporation, Greater Mumbai6 and Gainda Ram vs. MCD and Others7.
7 In Sodan Singh3, the Supreme Court held as under:
17. x x x x x x x The right to carry on trade or business mentioned in Article 19(1)(g) of the Constitution, on street pavements, if properly regulated cannot be denied on the ground that the streets are meant exclusively for passing or re-passing and for no other use. Proper regulation is, however, a necessary condition as otherwise the very object of laying out roadsto facilitate trafficmay be defeated.x x x x x x 8 Thereafter, in 2004, in Maharashtra Ekta Hawkers' Union4, it was reiterated with approval as under:
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 recognise 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. Those conditions have become final and there is no changed circumstance which necessitates any alteration. 9 Later, the Government of India came out with a national policy, which was considered in Maharashtra Ekta Hawkers' Union5 and it was held as under:
41. After noticing the contents of the statements in the counter, we are happy to note that the State Government is initiating a process for implementation of National Policy on Urban Street Vendors by framing regulations as envisaged in Section 10.1 of the National Policy. We hope and trust that the State Government will pursue the matter with right earnest and bring it to logical conclusion within the time stipulated.
42. We clarify that the regulations so framed by the State would be in consonance with the aims and objects of the National Policy to render some sort of succour to the urban street vendors to eke out a living through hawking.
43. We also clarify that the State Government shall frame regulations in order to solve the problem of hawkers independently without being influenced by any scheme framed by us or any direction issued by this Court in the interregnum. We further clarify that the schemes and directions issued by this Court are purely temporary in nature and subject to regulations framed by the State Government in terms of Section 10.1 of the National Policy on Urban Street Vendors. In other words, the schemes and directions issued by this Court shall be valid only till the regulations are framed and implemented. 10 Subsequently, in Gainda Ram7, the Supreme Court reiterated the recognition of street vendors/hawkers and held as under:
79. The hawkers and squatters or vendors right to carry on hawking has been recognised as a fundamental right under Article 19(1)(g). At the same time the right of the commuters to move freely and use the roads without any impediment is also a fundamental right under Article 19(1)(d). These two apparently conflicting rights must be harmonised and regulated by subjecting them to reasonable restrictions only under a law. The question is, therefore, vitally important to a very large section of people, mostly ordinary men and women. Such an issue cannot be left to be decided by schemes and which are monitored by this Court from time to time.
80. The second reason is that the appropriate Government has already enacted a Bill and, therefore, the initial decision-making in the field of legislative exercise is complete. It has, of course, to be converted into a law by following the constitutional process. That is why time till 30-6-2011 is given.
81. The fundamental right of the hawkers, just because they are poor and unorganised, cannot be left in a state of limbo nor can it be left to be decided by the varying standards of a scheme which changes from time to time under the orders of this Court. With the aforesaid observations and directions the writ petition and all the IAs are disposed of. No order as to costs. 11 The problem of incertitude qua settlement/rehabilitation of the street vendors/hawkers, again, came up for consideration in another decision in Maharashtra Ekta Hawkers' Union and another vs. Municipal Corporation, Greater Mumbai and Others8 before the Supreme Court. The Supreme Court decided the issue on 09 September 2013, laying down certain parameters to deal with the vendors/street hawkers' problem, as under:
21. For facilitating implementation of the 2009 Policy, we issue the following directions:
21.1. Within one month from the date of receipt of copy of this order, the Chief Secretaries of the State Governments and Administrators of the Union Territories shall issue necessary instructions/directions to the department(s) concerned to ensure that the Town Vending Committee is constituted at city/town level in accordance with the provisions contained in the 2009 Policy. For the cities and towns having large municipal areas, more than one Town Vending Committee may be constituted.
21.2. Each Town Vending Committee shall consist of representatives of various organisations and street vendors/hawkers. 30% of the representatives from the category of street vendors/hawkers shall be women.
21.3. The representatives of various organisations and street vendors/hawkers shall be chosen by the Town Vending Committee by adopting a fair and transparent mechanism.
21.4. The task of constituting the Town Vending Committees shall be completed within two months of the issue of instructions by the Chief Secretaries of the State and the Administrators of the Union Territories.
21.5. The Town Vending Committees shall function strictly in accordance with the 2009 Policy and the decisions taken by it shall be notified in the print and electronic media within next one week.
21.6. The Town Vending Committees shall be free to divide the municipal areas in vending/hawking zones and sub-zones and for this purpose they may take assistance of experts in the field. While undertaking this exercise, the Town Vending Committees constituted for the cities of Delhi and Mumbai shall take into consideration the work already undertaken by the municipal authorities in furtherance of the directions given by this Court. The municipal authorities shall also take action in terms of Paras 4.2(b) and (c).
21.7. All street vendors/hawkers shall be registered in accordance with Para 4.5.4 of the 2009 Policy. Once registered, the street vendor/hawker, shall be entitled to operate in the area specified by the Town Vending Committee.
21.8. The process of registration must be completed by the municipal authorities across the country within four months of the receipt of the direction by the Chief Secretaries of the States and Administrators of the Union Territories.
21.9. The State Governments/Administration of the Union Territories and municipal and local authorities shall take all the steps necessary for achieving the objectives set out in the 2009 Policy.
21.10. The Town Vending Committee shall meet every month and ensure implementation of the relevant provisions of the 2009 Policy and, in particular, Paras 4.5.1(b) and (c).
21.11. Physically challenged who were allowed to operate PCOs in terms of the judgment reported in Maharashtra Ekta Hawkers Union v. Municipal Corpn., Greater Mumbai shall be allowed to continue to run their stalls and sell other goods because running of PCOs is no longer viable. Those who were allowed to run Aarey/Sarita shall be allowed to continue to operate their stalls.
21.12. The State Governments, the Administration of the Union Territories and municipal authorities shall be free to amend the legislative provisions and/or delegated legislation to bring them in tune with the 2009 Policy. If there remains any conflict between the 2009 Policy and the municipal laws, insofar as they relate to street vendors/hawkers, then the 2009 Policy shall prevail.
21.13. Henceforth, the parties shall be free to approach the jurisdictional High Courts for redressal of their grievance and the direction, if any, given by this Court in the earlier judgments/orders shall not impede disposal of the cases which may be filed by the aggrieved parties.
21.14. The Chief Justices of the High Courts are requested to nominate a Bench to deal with the cases filed for implementation of the 2009 Policy and disputes arising out of its implementation. The Bench concerned shall regularly monitor implementation of the 2009 Policy and the law which may be enacted by Parliament.
21.15. All the existing street vendors/hawkers operating across the country shall be allowed to operate till the exercise of registration and creation of vending/hawking zones is completed in terms of the 2009 Policy. Once that exercise is completed, they shall be entitled to operate only in accordance with the orders/directions of the Town Vending Committee concerned.
21.16. The provisions of the 2009 Policy and the directions contained hereinabove shall apply to all the municipal areas in the country.
21.17. The aforesaid directions shall remain operative till an appropriate legislation is enacted by Parliament or any other competent legislature and is brought into force. 12 In the said judgment, it was made clear that the aforestated directions shall remain operative, till an appropriate legislation is enacted by Parliament or any other competent legislature and is brought into force.
13 In continuation thereof, the Parliament enacted the Act to protect the rights of urban street vendors and to regulate street vending activities and for matters connected therewith or incidental thereto, which, on receipt of the assent of the President of India on 04 March 2014, was published in the Gazette of India on 05 March 2014 and thus, came into effect with immediate effect, as no date, as required under sub-section (3) of Section 1 of the Act was notified in the Official Gazette.
14 Now, we proceed to deal with certain provisions of the Act which provide sufficient safeguards to protect the rights of the vendors/hawkers to carry on their trade in accordance with the rules framed by the appropriate Government.
15 The term street vendor has been defined under Section 2(l) of the Act as under:
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, 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 vendingwith their grammatical variations and cognate expressions, shall be construed accordingly. 16 Section 3(1) of the Act stipulates constitution of a Town Vending Committee and conduct of a survey of all existing street vendors within the area under its jurisdiction. Sub-section (3) of Section 3 mandates that no street vendor shall be evicted or as the case may be, re-located, till the survey specified under sub-section (1) has been completed and the certificate of vending is issued to all street vendors. Section 4 provides for issuance of certificate of vending.
17 We are not inclined to advert to each and every provision which deals with the criteria for issuance of certificate of vending, vending fees, renewal of certificate, cancellation thereof, if any and also the dispute-resolution mechanism thereon.
18 Section 12 of the Act confers a right on every street vendor to carry on the business of street vending activities in accordance with the terms and conditions mentioned in the certificate of vending, subject to conditions prescribed in sub-section (2) and in accordance with the other provisions of the Act.
19 Section 22 of the Act provides for the term and the manner of constituting a Town Vending Committee in each local authority. Sub-section (2) of Section 22 contemplates that the 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, non-governmental 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 non-governmental 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 one-third 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.
20 While Section 23 deals with convening of meetings of Town Vending Committee, Section 24 provides for temporary association of persons with Town Vending Committee for particular purposes.
21 Section 36 further mandates to the appropriate Government to make rules for carrying out the provisions of the Act, by notification, within one year from the date of commencement of the Act.
22 The Act came into force on 05 March 2014 and as such, the appropriate Government ought to have made rules before 04 March 2015.
23 We are informed by the learned Additional Advocate General appearing for the State that the State Government is engaged in making the rules.
24 Section 37 provides for framing of bye-laws, subject to the provisions of the Act or any rule or any scheme made thereunder.
25 Section 38 mandates the appropriate Government to frame a scheme within a period of six months from the date of commencement of the Act, after due consultations with the local authority and the Town Vending Committee, by notification, to deal with all the matters provided in the Second Schedule or any other matter specified therein.
26 In the cases on hand, as aforestated, the State Government has failed to frame a scheme and also make rules and bye-laws, as mandated under the provisions of the Act.
27 In such view of the matter, the State Government is directed to frame the rules and bye-laws, thereafter, at the earliest to extend sufficient protection, subject to regulations made therein, to all the street vendors/hawkers.
28 The vendors are protected under the statutory provision, viz, sub-section (3) of Section 3 of the Act and as such, till the Town Vending Committee is constituted under the provisions of the Act and a survey is made thereon, in accordance with the scheme, which is yet to be framed, the petitioners / the members of the petitioner associations, shall not be evicted from their place of business or trade.
29 We further direct that the petitioners/members of the petitioner associations shall not increase the size of their shops and spread the periphery of the same by littering goods and articles sold by them in the course of their trade/business.
The writ petitions are allowed to the extent indicated above. Costs made easy. Connected Miscellaneous Petitions are closed.
(SATISH K. AGNIHOTRI, J.) (K.K.SASIDHARAN, J.)
30 September, 2015
cad
Index: Yes/No
SATISH K. AGNIHOTRI, J.
and
K.K.SASIDHARAN, J.
cad
W.P. Nos.18397 of 2014, etc. batch
(32 cases)
30.09.2015