AHMADI, J - (1.) THE Judgment of the court was delivered by
(2.) A large number of writ petitions were filed in this court by persons claiming a right to trade on the pavements situate within the areas under the control of the Municipal Corporation of Delhi (MCD) and the New Delhi Municipal Committee (NDMC) in different parts of the city of Delhi. These writ petitions filed under Article 32 of the Constitution and certain appeals brought under Article 136 of the Constitution against adverse judgments of the Delhi High court were referred to a Constitution bench of this court for deciding on the grievance of the pavement traders that the Municipal Authorities were violating their fundamental rights under Articles 14, 19(1(g) and/or 21 of the Constitution by refusing to permit them to trade on streets and footpaths in different localities of the city of Delhi. The Constitution bench by its judgment dated 30/08/1989 in Sodan Singh v. New Delhi Municipal Committee came to the conclusion that 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 street pavements are meant exclusively for pedestrians and cannot be put to any other use. Proper regulation is, however, a necessary condition, for otherwise the very object of laying roads would be defeated. While conceding that all public streets and roads in the country vest in the State, the Constitution bench held that the State holds them as trustee on behalf of the public and the members of the public are entitled as beneficiaries to use them for trading as a matter of right subject of course to similar rights possessed by every other citizen including pedestrians. The right of a pavement-hawker is, however, subject to reasonable restrictions under clause (6 of Article 19 of the Constitution and the State as trustee is entitled to impose all necessary limitations on the character and extent of user by such pavement hawkers. The Constitution bench, however, clarified that there cannot be a fundamental right of a citizen to occupy a particular place on the pavement where he can squat and engage in trading business. Nor can the hawker assert a fundamental right to occupy permanently specific places on any pavement. It recognised the right under Article 19(1(g) of the Constitution but negatived the submission based on Article 21. It held that the right to carry on any trade or business and the concept of life and personal liberty enshrined under Article 21 have no connection whatsoever and, therefore, Article 21 has no application. In paragraph 17 Sharma, J. speaking for the majority observed as under "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 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 hawkers were to be conceded the right claimed by them, they could hold the society to ransom by squatting on the busy thoroughfares, thereby paralysing all civic life. This is one side of the picture. On the other hand, if properly regulated according to the exigency of the circumstances, the small traders on the sidewalks can considerably add to the comfort and convenience of general public, by making available ordinary articles of everyday use for a comparatively lesser price." Kuldip Singh, J. who wrote a separate judgment concurred with the view taken by the majority for reasons of his own. It is, therefore, settled law that every citizen has a right to the use of a public street vested in the State as a beneficiary but this right is subject to such reasonable restrictions as the State may choose to impose. Street-trading is albeit a fundamental right under Article 19(1(g) of the Constitution but it is subject to reasonable restrictions which the State may choose to impose by virtue of clause (6 of Article 19 of the Constitution. The right to street-trading under Article 19(1(g) of the Constitution does not, however, extend to a citizen occupying or squatting on any specific place of his choice on the pavement regardless of the rights of others, including pedestrians, to make use of the payements. In other words the law laid down by the Constitution bench permits a citizen to hawk on the street pavements by moving from one place to another without being stationary on any part of the pavement vested in the State, After laying down the law on the point in the context of Articles 14, 19 and 21 of the Constitution, the Constitution bench remitted all the petitions to a proper division bench of this court for final disposal. After the petitions were referred to the Constitution bench for determining the challenge based on Articles 14, 19(1(g) and 21 of the Constitution several other writ petitions came to be filed in this court and interim orders were made thereon from time to time. NDMC had prepared a scheme, Pursuant to the recommendation made by the Lok-Adalat on 19/11/1989, this court by its order dated 21/12/1989 appointed a Committee to examine the claims made by the squatters in the light of the said scheme and the decision in Sodan Single and identify street pavements in different areas where street hawking could be regulated without being a hindrance to other users. The salient features of the NDMC scheme may be set out at this stage as under: "(A) A squatter up to 1977 shall be eligible for the allotment of a stall/kiosk while the squatters pertaining to the years 1978 till 1980 shall be eligible fortchbazari site, if no shop/kiosk is available. The squatters squatting since between 1981 to 1987 shall be considered for allotment for a tehbazari site subject to availability of vacant space. (B) The eligibility of a squatter shall be determined by documents such as receipts issued by the NDMC, Challans by Police and Toleration Permission etc. (C) Only non-licensable trades excluding sophisticated luxury items, imported or smuggled goods shall be permitted i.e. pan, biri. cigarettes, chana, moongfali, hosiery items, toys. small stationery items, lottery tickets, fresh vegetables, uncut fruits, packed bakery items etc. will be allowed. No cooking and sale of food items exposed to dust causing health hazards shall be allowed. Open space measuring 6' x 4' for doing non-licensahle trades and 4' x 3' for the trade of pan, biri, cigarettes will be allowed. (D) Not more than one member of the family, as defined by the NDMC, will be eligible for benefit under the Scheme. (E) The following percentage shall be allowed for the purpose of reservation in the allotment. JUDGEMENT_458_2_1992Html1.htm
(3.) ON several pavements large number of such traders were carrying on business since quite sometime; many of them were stationary, some had raised wooden 'takhats' while others were squatting on the pavements in front of shops and near public places. 'Tehbazari' was being recovered from them by the NDMC. The Committee was required to scrutinise the claims of the pavement hawkers and at the same time look into their grievances. This was a time-consuming exercise. Keeping that in view interim directions were issued on 23/02/1990 to the following effect: "We are of the view that until the scheme drawn up pursuant to the directions of the Constitution bench is finalised, the petitioners in the several writ petitions placed before us as a group today should be permitted to hawk in the area where they claim to be carrying on the operation without a right to either sit down with or without their merchandise to be sold on the pavements in front of licensed shops or on the pavements as such but as soon as the shops close down in the evening it shall be open to them to settle down with their goods and squat on the pavements and sell their goods. ON holidays and special festival occasions as per the prevailing practice they shall be entitled to squat throughout the day. This order is totally interim in nature without prejudice to the stance of both parties and shall not create any right nor prejudice any right, if any." Alter this interim order was made a direction was given by the order of 23/03/1990 that pending receipt of the report from the Committee hawking will be permitted subject to the same being regulated in sensitive areas. During preliminary scrutiny, however, it was found that 'takhats' were given on hire by those who claimed to possess them on rentals varying from Rs. 300.00 to Rs. 1,000.00 per day depending on the season or the 'takhat-holders' used to carry on business at the said 'takhats' through servants while they themselves attended to their business elsewhere and at certain places the 'takhat-holders' whose names appeared in the petitions were non-existent i.e. the orders were in fictitious names. That being the position the Committee considered it imperative to undertake a strict scrutiny to ensure that the benefit of the scheme percolated to the deserving and not to those who were merely exploiting the fluid situation by obtaining court orders on distorted and inaccurate facts. The Committee, therefore, invited claims in the form of a statement on oath coupled with original genuine documents in support of it. This was done by public notices at the spot and through counsel in case of pending cases. In addition local visits were made to verity presence of the claimant at the site where he professed to carry on business and if not found at such visits he was asked to substantiate his claim by proof of challan, fine receipts or tehbazari receipts. The underlying idea was to eliminate bogus and fictitious claims. Records of NDMC were also checked for cross verification. A grievance was however, made that the procedure adopted by the Committee for scrutinising the claims made by the pavement-traders was too strict and resulted in injustice even to genuine claimants. According to the petitioners the strict standard adopted by the Thareja Committee for recognising the claim of a pavement-hawker overlooked the fact that most of the pavement-hawkers were poor and illiterate persons who could not be expected to have maintained proper records of receipts, challans, etc., issued by the police or other local authorities to support their claims. Counsel for the pavement-hawkers, therefore, submitted that the standard of proof expected by the Thareja Committee was unrealistic and it was essential to modify the same to do complete justice to the concerned parties. It was also submitted that the deadline prescribed by the Thareja Committee was strictly enforced with the result that many of the rightful claimants were denied the opportunity of submitting their claims to the Thareja Committee and having the same duly scrutinised and verified by it. Apart from those whose claims were rejected on the insistence of the strict standard of proof prescribed by the Thareja Committee, counsel submitted that several pavementhawkers who were unaware of the constitution of such a Committee and to whom a cause of action for seeking redress through court had not arisen were left out from consideration and as such such pavementhawkers are likely to be denied their rightful place in the scheme if the scheme is Finalised without their knowledge. Scores of writ petitions have been filed after the Constitution bench rendered its decision and most of these were not before the Thareja Committee.;