- (1.) HEARD all the learned Counsel; Dr. Chandrachud for petitioners; Mr. C. J. Sawant, Advocate General for respondent Nos. 1 and 5; Mr. B. P. Apte, Advocate General for respondent Nos. 2 and 3 and Mr. R. M. Sawant for respondent No. 4.
(2.) THE first three petitioners are Trade Unions duly registered under the Trade Unions Act, 1926 representing a large number of hawkers in Navi Mumbai, (New Bombay), the twin city. Petitioner Nos. 4 to 17 are hawkers, who claim to have been carrying their hawking activities in Navi Mumbai and had submitted their applications to the second respondent Commissioner, Navi Mumbai Municipal Corporation for grant of licence to hawk in the hawking zones. The fourth respondent City and Industrial Development Corporation (for short CIDCO) is the New Town Development Authority (N. T. D. A.) constituted under section 113 of the Maharashtra Regional and Town Planning Act, 1966. The third respondent Navi Mumbai Municipal Corporation is a Corporation duly constituted under section 3 of the Bombay Provincial Municipal Corporations Act, 1949 (for short B. P. M. C. Act ). The fourth respondent CIDCO has notified certain areas within the new town of Navi Mumbai as "hawking zones" and the same have been placed at the disposal of the third respondent Municipal Corporation. The Municipal Corporation, in its turn, is entitled, in accordance with the provisions of sections 384 and 385 of the B. P. M. C. Act, to grant licences for sale of Articles in public place or licence for use of skill in handicraft or rendering services for the purposes of gain in public place or street. Chapter XXII of the B. P. M. C. Act deals with "licences and Permits. " Sub-chapter VIII deals with "licences for Hawking etc. " Under section 384 of the said Act, it is provided that no person shall use any public place or any public street for the purpose of hawking or exposing for sale, any article whatsoever, whether it be for human consumption or not except under and in conformity with the terms and provisions of a licence granted by the Commissioner in that behalf. Section 385 provides that no person shall, for the purpose of gain, use any public place or public street for the purpose of using his skill in any handicraft or in rendering services to and for the convenience of the public, except under and in conformity with the terms and provisions of a licence granted by the Commissioner in that behalf. Section 386 in Sub-chapter IX deals with the "general provisions regarding licences and permits".
(3.) THE controversy raised before us is in respect of the constitutional validity of the impugned letter dated 21st August, 1997 (Exh. S. page 115) issued by the Asstt. Commissioner of the third respondent Municipal Corporation. Under the said letter, the applicants like petitioner Nos. 4 to 17 and other members of petitioner Nos. 1 to 3, who have submitted their applications for grant of licence to hawk in the hawking zone within the limits of Navi Mumbai Municipal Corporation, had been called upon to remain present in the office of the Asstt. Commissioner and produce the following five documents. i) Ration card; ii) Voters identity card; iii) Proof in support of the applicant carrying on business; iv) 2 passport size photographs; and v) Certificate from the Competent Officer that the applicant is resident of Maharashtra for 15 years. It is that last item, namely, a certificate from the Competent Officer to the effect that the applicant is a resident of Maharashtra for 15 years, which is objected to before us by Dr. Chandrachud on behalf of the petitioners. The impugned letter dated 21st August, 1997 read with the affidavit of Asstt. Commissioner Mr. N. N. Alhat makes it clear that only a person producing the said documents would be eligible to be considered for allotment of a slot in the hawking zone. It is thus one of the conditions of eligibility for being considered for grant of a licence to hawk in the hawking zone in Navi Mumbai Municipal Corporation that, the person applying must produce the above mentioned five documents. We are not concerned with the first four items in respect of which there is no controversy before us. The objection of the petitioners is to the insistence on item No. (v ). It is obvious that, if an applicant does not produce the said certificate of residence for 15 years in the State, his application is liable to be rejected on the ground that he is not even eligible for being considered for grant of licence to hawk in the hawking zone. The applications of some of the petitioners have been rejected solely on the ground that they did not produce the said certificate of residence. Some applications are pending consideration. Some have been rejected on the ground that the applicants did not remain present for the interview. In this category there are cases where the applicants have produced all the five documents whereas there are some who may have produced the first four documents but were unable to produce the certificate of residence for 15 years in the State. It is in these circumstances that the petitioners have prayed for issuance of a writ of certiorari quashing the rejection of petitioners applications. There is also a prayer for issuance of a writ of mandamus directing respondent Nos. 2 and 3 to issue licences to the petitioners under sections 384 and 385 of the B. P. M. C. Act and to allot them a place in the hawking zone.;