H.K.Sema, J. - (1.) THE Hawkers' problems in the city of Bombay was first dealt with by this Court in the case of Bombay Hawkers' Union v. Bombay Municipal Corporation. THE argument that the hawkers have a fundamental right to carry on their trade or business and that the respondents are unlawfully interfering with that right by arbitrarily refusing to grant or renew their licenses for hawking and that the writ petitions for a declaration that the provisions of Sections 313, 313-A, 314(3) and 497 of the Bombay Municipal Corporation Act, 1988 are void since they confer upon the respondents an arbitrary and unguided power to refuse to grant or renew licenses for hawking and to remove the goods without affording to the hawkers an opportunity to be heard, was repelled by this Court. This Court held that the right to carry on trade or business conferred by Article 19(1)(g) of the Constitution is subject to the provisions of Clause (6) of Article 19 which provided that nothing in Sub-clause (g) of Article 19(1) would affect the operation of any existing law insofar as it imposed, or prevented the State from making any law imposing, in the interests of general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause. It was held that no one had 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. It was pointed out that public streets, by their very nomenclature and definition, were meant for the use of the general public. It was further pointed out that the public streets are not laid to facilitate the carrying on of private trade or business. It was held that if hawkers were to be conceded the right claimed by them they could hold the society to ransom by squatting on the center of busy thoroughfares, thereby paralyzing all civic life. It was noticed that in some of the parts of the city the hawkers had made it impossible for the pedestrians to walk on footpaths or even on the streets. This Court then examined the scheme proposed by the Municipal Commissioner and laid down certain modalities for hawking and non-hawking zones. After accepting some restrictions/conditions proposed by the Municipal Commissioner, this Court suggested certain guidelines and directed the Municipal Commissioner to frame a final scheme.
(2.) PURSUANT to the aforesaid direction, Bombay Municipal Corporation (for short 'BMC') constituted an Advisory Committee composed of officials of the Corporation, representatives of the Residents' Associations, NGO's, elected representatives of the Traffic Police and representatives of the hawkers. In the interregnum, the Advisory Committee submitted a draft Scheme. Many suggestions were made but we are not concerned with the draft Scheme, proposals or suggestions, in these proceedings. Before this Court a strong reliance has also been placed on behalf of the petitioners on the judgment in the case of Olga Tellis v. Bombay Municipal Corporation. It was submitted that the right to hawk was also a fundamental right under Article 21 of the Constitution of India. This Court noticed that such an argument has been negatived in the case of Sodan Singh and Ors. v. New Delhi Municipal Committee and Ors.. This Court in Sodan Singh's case (supra), while dealing with hawkers in the city of Delhi held that the hawking on roadsides fell within the expression "occupation, trade or business" in Article 19(1)(g) but that it was subject to reasonable restrictions under Article 19(6) of the Constitution. After noticing the 1985 and 1989 judgments of this Court, as referred to above, this Court in Maharashtra Ekta Hawkers Union v. Municipal Corporation Greater Mumbai held: 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 the Bombay Hawkers Union's case. Those conditions have become final and there is no changed circumstance which necessitates any alteration.
(3.) WE are pointing out the aforesaid finding of this Court as many intervention applications have been filed, which we shall be dealing with at an appropriate time, attempting to re-argue the entire controversy which has been set at rest by this Court in Maharashtra Ekta Hawkers Union v. Municipal Corporation Greater Mumbai (supra). This Court, after noticing the draft Scheme prepared pursuant to the judgment of this Court in Bombay Hawkers' Union's case (supra), decided to constitute a Committee. It said in paragraph 12 SCC page 634 as under: 12. We have, during the course of arguments, tried to go through the scheme street by street. However on a re-consideration it appears to us that this Court is not really equipped to undergo this exercise. In our view it would be preferable that this Court approves the conditions of the scheme and certain roads/streets on which hawking is to be permitted. Then, as in Sodan Singh's case, a committee must be appointed and modalities laid down under which the committee is to function. The committee can hear interested parties and consider their representations. The committee can decide whether any particular road/street is to be declared as a non-hawking zone. We therefore confine ourselves to laying down the basic features of the scheme, appointing a committee and laying down the modalities for functioning of the committee. ;