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TMI Blog2013 (9) TMI 1277X X X X Extracts X X X X X X X X Extracts X X X X ..... e stationary in the sense that they occupy space on the pavements or other public/private places while others are mobile in the sense that they move from place to place carrying their wares on push carts or in baskets on their heads. 2. In last four decades, there has been manifold increase in the number of street vendors/hawkers in all major cities in the country. One of the many factors responsible for this phenomena is unabated growth of population without corresponding increase in employment opportunities. The other factor is the migration of rural population to the urban areas. A large section of the rural population has been forced to leave their habitat because of massive acquisition of land and substantial reduction in the number of cottage industries, which offered source of livelihood to many people in the rural areas and even those living in the peripheries of the urban areas. In recent past, many lakh youngsters have moved from the rural areas to the cities with the hope of getting permanent source of livelihood but a substantial number of them have become street vendors/hawkers because their expectations have been belied. One reason which has contributed to this sce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inda Ram v. 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. 6. In Sodan Singh v. New Delhi Municipal Committee (supra), L.M. Sharma, J., who authored the main judgment, referred to a number of precedents including Saghir Ahmad v. State of U.P. AIR 1954 SC 728 and observed. 17. So far as right of a hawker to transact business while going from place to place is concerned, it has been admittedly recognised for a long period. of course, that also is subject to proper Regulation in the interest of general convenience of the public including health and security considerations. What about the right to squat on the roadside for engaging in trading business? As was stated by this Court in Bombay Hawkers' Union v. Bombay Municipal Corporation (1985) 3 SCC 528 the public streets by their nomenclature and definition are meant for the use of the general public: they are not laid to facilitate the carrying on of private business. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the character and extent of the user, should be treated as of universal application. (Emphasis supplied) In his concurring opinion, Kuldip Singh, J. made the following observations: 33. In India there are large number of people who are engaged in the business of street trading . There is hardly a household where hawkers do not reach. The housewives wait for a vegetable vendor or a fruit seller who conveniently delivers the daily needs at the doorstep. The Petitioners before us are street traders of Delhi and New Delhi areas. Some of them have licences/Tehbazari from Municipal Corporation of Delhi/New Delhi Municipal Committee but most of them are squatters. There is practically no law regulating street trading in Delhi/New Delhi. The skeletal provisions in the Delhi Municipal Corporation Act, 1957 and the Punjab Municipal Act, 1911 can hardly provide any regulatory measures to the enormous and complicated problem of street trading in these areas. 35. Street trading being a fundamental right has to be made available to the citizens subject to Article 19(6) of the Constitution. It is within the domain of the State to make any law imposing reasonable, restrictions in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide 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 x 1 m but not more than 2 m x 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 over bridges. Further, certain areas may be required to be kept free of hawkers for security reasons. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the event of any hawker found to be selling such items his licence must be cancelled forthwith. (13) In areas other than the non-hawking 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 non-hawking 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 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 non-hawking zones/areas free from hawkers. They shall do so by bringing to the notice of the ward officer concerned t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The two Judge Bench also restrained all other Courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011, the appropriate Government is to enact a law on the basis of the Bill mentioned above or on the basis of any amendment thereof so that the hawkers may precisely know the contours of their rights. This Court is giving this direction in exercise of its jurisdiction to protect the fundamental rights of the citizens. 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. 11. When these appeals and applications were taken up for hearing, Shri Prashant Bhushan, learned Counsel representing some of the street vendors/hawkers produced Twenty Third Report of the Standing Committee on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the street vendors/hawkers in Delhi, the concerned authorities are not allowing them to conduct their activities. He further argued that the street vendors/hawkers should be allowed to operate in accordance with the provisions of 2009 Policy and the concerned authorities should ensure that everybody is given licence for carrying out his/her activity. Learned Counsel for the parties also suggested that the decision(s) of the Town Vending Committees should be published on regular intervals in print and electronic media and the internet and the High Courts should be asked to monitor implementation of various provisions of the 2009 Policy. 13. At the conclusion of hearing, the Court had given time to the parties to file written submissions/suggestions. On 7th August, 2013, Shri Prashant Bhushan, learned Counsel for the applicants in IA Nos. 322-323 of 2013 and 324-325 of 2013 filed written suggestions. On 8th August, 2013, a written note was filed on behalf of Citizen Forum for Protection of Public Spaces (Citi Space), which was allowed to act as intervenor in the special leave petitions filed by Maharashtra Ekta Hawkers Union. 14. We have considered the respective argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The TVC may constitute, in collaboration with the local authority, Ward Vending Committee to assist in the discharge of its functions. 1.9 This Policy adopts the considered opinion that there should not be any cut off date or limit imposed on the number of vendors who should be permitted to vend in any city/town, subject to registration of such vendors and Regulation through the TVC. At any time, an urban poor person can decide that he or she would like to go to a wholesale market, purchase some items and sell these in vending zones during permitted hours to make an honest living. The vendor may not be subject to undue restrictions if he/she wishes to change the trade. In order to make this conceptual right a practically feasible right, the following would be necessary: i) Vendor markets/outlets should be developed in which space could be made available to hawkers/vendors on a time-sharing model on the basis of a roster. Let us say that there are 500 such vending places in about a 100 new vendors' markets/push cart markets/motorized vending outlets. Let us also assume that there are 5,000 vendors who want to apply for a vending site on a time-sharing basis. Then by a sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el law on street vending which can be adopted by States/Union Territories with suitable modifications to take into account their geographical/local conditions. The specific objectives of this Policy are elaborated as follows: a) Legal Status: To give street vendors a legal status by formulating an appropriate law and thereby providing for legitimate vending/hawking zones in city/town master or development plans including zonal, local and layout plans and ensuring their enforcement; b) Civic Facilities: To provide civic facilities for appropriate use of identified spaces as vending/hawking zones, vendors' markets or vending areas in accordance with city/town master plans including zonal, local and layout plans; c) Transparent Regulation: To eschew imposing numerical limits on access to public spaces by discretionary licenses, and instead moving to nominal fee-based Regulation of access, where previous occupancy of space by the street vendors determines the allocation of space or creating new informal sector markets where space access is on a temporary turn-by-turn basis. All allotments of space, whether permanent or temporary should be based on payment of a pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould frame necessary rules for regulating entry of street vendors on a time sharing basis in designated vending zones keeping in view three broad categories-registered vendors who have secured a license for a specified site/stall; registered street vendors in a zone on a time sharing basis; and registered mobile street vendors visiting one or the other vending zone; c) Municipal Authorities should allocate sufficient space for temporary 'Vendors' Markets' (e.g. Weekly Haats, Rehri Markets, Night Bazaars, Festival Bazaars, Food Streets/Street Food Marts etc.) whose use at other times may be different (e.g. public park, exhibition ground, parking lot etc.). These 'Vendors Markets' may be established at suitable locations keeping in view demand for the wares/services of street vendors. Timing restrictions on vending should be in accordance with the need for ensuring non-congestion of public spaces/maintaining public hygiene without being ad hoc, arbitrary or discriminatory. Rationing of space should be resorted to if the number of street vendors exceeds the number of spaces available. Attempts should also be made to provide ample parking areas for mobile vendor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portion of twenty per cent each. At least one third of the representatives of categories of street vendors, resident welfare associations and other civil society organizations should be women to provide a gender focus in the TVC. Adequate/reasonable representation should also be provided to the physically challenged in the TVC. The process for selection of street vendors' representatives should be based on the following criteria: Participation in membership-based organisations; and Demonstration of financial accountability and civic discipline. b) The TVC should ensure that the provision of space for vendors' markets are pragmatic, consistent with formation of natural markets, sufficient for existing demand for the street vendors' goods and services as well as likely increase in accordance with anticipated population growth. c) The TVC should monitor the provision of civic facilities and their functioning in Vending Zones and Vendors' Markets and bring shortcomings, if any to the notice of the concerned authorities of the urban local body. The TVC should also promote the organisation of weekly markets, festival bazaars, night bazaars, vending festiva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of Vendors: The power to register vendors would be vested with the TVC. Only those who give an undertaking that they will personally run the vending stall/spot and have no other means of livelihood will be entitled for registration. A person will be entitled to receive a registration document for only one vending spot for him/her (and family). He/she will not have the right to either rent or lease out or sell that spot to another person. c) New Entrants: Those left out in the photo census or wishes to take up street vending for the first time will also have a right to apply for registration as vendors provided they give a statement on oath that they do not have any other means of livelihood and will be personally operating from the vending spot, with help from family members. d) Identity Cards: Upon registration, the concerned Municipal Authority would issue an Identity Card with Vendor Code Number, Vendor Name, Category of Vendor etc. in writing to the street vendor, through the TVC concerned containing the following information: (i) Vendor Code No. (ii) Name, Address and photograph of the Vendor; (iii) Name of any one Nominee from the family/and/or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed space/stalls, whether open or covered, on license basis after photo census/survey and due enquiry in this regard, initially for a period of 10 years with the provision that only one extension of ten years shall be provided thereafter. After 20 years, the vendor will be required to exit the stationary stall (whether open or covered) as it is reasonably expected that the licensee would have suitably enhanced his/her income, thereby making the said stall available for being licensed to a person belonging to the weaker sections of society. Wherever vending stall/vending space is provided to a vendor on a lease basis for a certain number of years, care should be taken that adequate reservation is made for the SCs/STs in accordance with their share in the total population of the city. Similarly, priority should be given to physically challenged/disabled persons in the allocation of vending stalls/vending spaces as vending space can be a useful medium for rehabilitating physically challenged/disabled persons. Further, a suitable monitoring system should be put in place by the TVC to ensure that the licensees of the stationary stalls do not sell/let out their stalls. 6.7 Reh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Paragraph 4.2(b) and (c). (vii) All street vendors/hawkers shall be registered in accordance with paragraph 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. (viii) 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. (ix) 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. (x) The Town Vending Committee shall meet every month and ensure implementation o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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