Maharashtra Ekta Hawkers Union and another Vs. Municipal Corporation, Greater Mumbai and others
G.S. SINGHVI, J.
1. A
street vendor / hawker is a person who offers goods for sale to the
public at large without having a permanent structure / place for his
activities. Some street vendors / hawkers are 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 scenario is that unlike
other sections of the urban population, they neither have the capacity
and strength to demand that the Government should create jobs for them
nor do they engage in begging, stealing or extortion. They try to live
with dignity and self-respect by doing the work as street vendors /
hawkers.
3.
The importance of street vendors and hawkers can be measured from the
fact that millions of urban poor across the country procure their basic
necessities mainly from street vendors / hawkers because the goods,
viz., cloths, hosiery items, plastic wares, household items, food items,
etc., sold on pavements or through push carts, etc., are cheap. The
lower income groups also spend a large proportion of their income in
purchasing goods from street vendors / hawkers.
4.
Unfortunately, the street vendors / hawkers have received raw treatment
from the State apparatus before and even after the independence. They
are a harassed lot and are constantly victimized by the officials of the
local authorities, the police, etc., who regularly target them for
extra income and treat them with extreme contempt. The goods and
belongings of the street vendors / hawkers are thrown to the ground and
destroyed at regular intervals if they are not able to meet the demands
of the officials. Perhaps these minions in the administration have not
understood meaning of the term "dignity" enshrined in the preamble of
the Constitution.
5.
The constant threat faced by the street vendors / hawkers of losing
their source of livelihood has forced them to seek intervention of the
Courts across the country from time to time. In last 28 years, this
Court has struggled to find a workable solution of the problems of
street vendors/ hawkers on the one hand and other sections of society
including residents of the localities / places where street vendors /
hawkers operate and delivered several judgments including Bombay
Hawkers' Union vs. Bombay Municipal Corporation (1985) 3 SCC 528, Sodan
Singh vs. New Delhi Municipal Committee (1989) 4 SCC 155, Maharashtra
Ekta Hawkers Union vs. Municipal Corporation, Greater Mumbai (2004) 1
SCC 625, Maharashtra Ekta Hawkers Union vs. Municipal Corporation,
Greater Mumbai (2009) 17 SCC 151,Maharashtra Ekta Hawkers Union vs.
Municipal Corporation, Greater Mumbai(2009) 17 SCC 231 (this order was
passed on 30.07.2004 but was printed in the journal only in 2009) and
Gainda Ram vs. 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 vs. New Delhi Municipal Committee (supra), L.M.Sharma,J.,
who authored the main judgment, referred to a number of precedents
including Saghir Ahmad vs. 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 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. An ordinary person, not very affluent,
while hurrying towards his home after day's work can pick up these
articles without going out of his way to find a regular market. If the
circumstances are appropriate and a small trader can do some business
for personal gain on the pavement to the advantage of the general public
and without any discomfort or annoyance to the others, we do not see
any objection to his carrying on the business. Appreciating this analogy
the municipalities of different cities and towns in the country have
been allowing such traders.
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 roads -
to facilitate traffic - may be defeated. Allowing the right to trade
without appropriate control is likely to lead to unhealthy competition
and quarrel between traders and travelling public and sometimes amongst
the traders themselves resulting in chaos. The right is subject to
reasonable restrictions under clause (6) or Article 19. If the matter is
examined in its light it will appear that the principle stated in
Saghir Ahmad case (1955) 1 SCR 707:AIR 1954 SC 728 in connection with
transport business applies to the hawkers' case also.
The
proposition that all public streets and roads in India vest in the State
but 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 as a
matter of right, and that this right is limited only by the similar
rights possessed by every other citizen to use the pathways, and further
that the State as trustee is entitled to impose all necessary
limitations on 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 interest of general public. This can be done by an enactment on
the same lines as in England or by any other law permissible under
Article 19(6) of the Constitution. In spite of repeated suggestions by
this Court nothing has been done in this respect. Since a citizen has no
right to choose a particular place in any street for trading, it is for
the State to designate the streets and earmark the places from where
street trading can be done. Inaction on the part of the State would
result in negating the fundamental right of the citizens. It is expected
that the State will do the needful in this respect within a reasonable
time failing which it would be left to the courts to protect the rights
of the citizens.
7.
"In Maharashtra Ekta Hawkers Union vs. Municipal Corporation, Greater
Mumbai (supra), which was decided on 9.12.2003, a two Judge Bench
referred to the judgments in Olga Tellis vs. Bombay Municipal
Corporation (1985) 3SCC 545, Sodan Singh vs. New Delhi Municipal
Committee (supra), the recommendations made by the Committee constituted
pursuant to an earlier judgment and observed: "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 Bombay Hawkers' Union case (1985) 3 SCC 528.
Those conditions have become final and there is no changed circumstance
which necessitates any alteration."The Court then enumerated the
following restrictions and conditions subject to which the hawkers could
do business in Mumbai:
"(1)
An area of 1 m � 1 m on one side 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 � 1 m but not more
than 2 m � 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.
However, outside places of worship hawkers can be permitted to sell
items required by the devotees for offering to the deity or for placing
in the place of worship e.g. flowers, sandalwood, candles, agarbattis,
coconuts etc.
(4) The hawkers must not create any noise or play any instrument or music for attracting the public or the customers.
5)
They can only sell cooked foods, cut fruits, juices and the like. We are
unable to accept the submission that cooking should be permitted. We
direct that no cooking of any nature whatsoever shall be permitted. Even
where cooked food or cut fruits or the like are sold, the food must not
be adulterated or unhygienic. All Municipal Licensing Regulations and
the provisions of the Prevention of Food Adulteration Act must be
complied with.
(6) Hawking must be only between 7.00 a.m. and 10.00 p.m.
(7)
Hawking will be on the basis of payment of a prescribed fee to be fixed
by BMC. However, the payment of prescribed fee shall not be deemed to
authorize the hawker to do his business beyond the prescribed hours and
would not confer on the hawker the right to do business at any
particular place.
(8)
The hawkers must extend full cooperation to the municipal conservancy
staff for cleaning the streets and footpaths and also to the other
municipal staff for carrying on any municipal work. They must also
cooperate with the other government and public agencies such as BEST
Undertaking, Bombay Telephones, BSES Ltd. etc. if they require to lay
any cable or any development work.
(9)
No hawking would be permitted on any street which is less than 8 metres
in width. Further, the hawkers also have to comply with the Development
Control Rules, thus, there can be no hawking in areas which are
exclusively residential and where trading and commercial activity is
prohibited. Thus hawking cannot be permitted on roads and pavements
which do not have a shopping line.
(10)
BMC shall grant licences which will have photos of the hawkers on them.
The licence must be displayed, at all times, by the hawkers on their
person by clipping it on to their shirt or coat.
(11)
Not more than one member of a family must be given a licence to hawk.
For this purpose BMC will have to computerize its records.
(12)
Vending of costly items e.g. electrical appliances, video and audio
tapes and cassettes, cameras, phones etc. is to be prohibited. In 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 the presence of a
hawker in a non-hawking zone/area. The ward officer concerned shall take
immediate steps to remove such a hawker. In case the ward officer takes
no action, a written complaint may be filed by the citizen/shopkeeper
to the Committee. The Committee shall look into the complaint and if
found correct, the Committee will with the help of police remove the
hawker.
The
officer in charge of the police station concerned is directed to give
prompt and immediate assistance to the Committee. In the event of the
Committee finding the complaint to be correct it shall so record. On the
Committee so recording an adverse remark re failure to perform his duty
will be entered in the confidential record of the ward officer
concerned. If more than three such entries are found in the record of an
officer it would be a ground for withholding promotion. If more than
six such entries are found in the records of an officer it shall be a
ground for termination of service. For the work of attending to such
complaints BMC shall pay to the Chairman a fixed honorarium of Rs 10,000
p.m.
(16)
The scheme framed by us will have a binding effect on all concerned.
Thus, apart from those to whom licences will now be issued, no other
person/body will have any right to squat or carry on any hawking or
other business on the roads/streets. We direct that BMC shall bring this
judgment to the notice of all courts in which matters are now pending.
We are quite sure that the court(s) concerned shall then suitably
vacate/modify its injunction/stay order."
8. By
an order dated 30.07.2004, which is reported in (2009) 17 SCC
231(Maharashtra Ekta Hawkers Union vs. Municipal Corporation, Greater
Mumbai),the Court modified order dated 09.12.2003 and permitted
handicapped persons who were granted licence for running
PCOs/Aarey/Sarita stalls to continue to run those stalls even in
non-hawking zones with the rider that nofurther or new licences be
granted to any other person.
9.
The matter did not stop there. The issue was again examined in the
judgment reported in (2009) 17 SCC 151 (Maharashtra Ekta Hawkers Union
vs. Municipal Corporation, Greater Mumbai). In that case, a two Judge
Benchtook cognizance of National Policy on Urban Street Vendors, 2004
and observed:
"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."The two Judge
Bench also restrained all other Courts from interpreting its order or
passing any order touching upon the subject matter dealt with by this
Court. Simultaneously, hearing of the writ petitions pending before all
the High Courts was stayed and it was ordained that if any clarification
/ modification is required then the same must be obtained from this
Court.
10.
In Gainda Ram vs. Municipal Corporation of Delhi (2010) 10 SCC 715,the
problem was considered in the context of Delhi. After taking cognizance
of the fact that various committees were set up by the administration to
solve the problem of street vendors / hawkers, the Bench referred to
the National Policy on Urban Street Vendors, 2009 (for short, 'the 2009
Policy'), the Master Plan of Delhi, 2012, the Model Street Vendors
(Protection of Livelihood and Regulation of Street Vending) Bill,2009
prepared by the Government of India, Ministry of Housing and Urban
Poverty Alleviation and observed:
"67.
In the background of the provisions in the Bill and the 2009 Policy, it
is clear that an attempt is made to regulate the fundamental right of
street hawking and street vending by law, since it has been declared by
this Court that the right to hawk on the streets or right to carry on
street vending is part of fundamental right under Article 19(1)(g).
However, till the law is made the attempt made by NDMC and MCD to
regulate this right by framing schemes which are not statutory in nature
is not exactly within the contemplation of constitutional provisions
discussed above. However, such schemes have been regulated from time to
time by this Court for several years as pointed out above. Even, orders
passed by this Court, in trying to regulate such hawking and street
vending, is not law either. At the same time, there is no denying the
fact that hawking and street vending should be regulated by law. Such a
law is imminently necessary in public interest."The Court also referred
to the mechanism established by the Municipal Corporation of Delhi for
redressing the grievance of the street endors/hawkers and issued the
following directions:
"77.
In view of such schemes, the hawkers, squatters and vendors must abide
by the dispute redressal mechanism mentioned above. There should not be
any direct approach to this Court by way of fresh petitions or IAs,
bypassing the dispute redressal mechanism provided in the schemes.
78.
However, before 30-6-2011, 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 Urban Development (2012-2013) prepared in the context of the Street
Vendors(Protection of Livelihood and Regulation of Street Vending) Bill,
2012 and submitted that till Parliament enacts appropriate legislation
for protecting the rights of the urban street vendors / hawkers, the
Court may ordain implementation of the 2009 Policy with liberty to the
parties to approach appropriate judicial forums for redressal of their
grievance.
They
and learned counsel representing the municipal bodies / authorities,
residents and others lamented that due to the restrictions imposed by
this Court, no other Court is entertaining the grievance made by the
street vendors / hawkers on the one hand and the residents of various
colonies and other people on the other hand and this is the reason why
dozens of interlocutory applications are being filed in this Court every
year in the decided matters.
They
suggested that the embargo placed by this Court on the entertaining of
writ petitions, etc., by the High Courts should be lifted and a
direction be given that till the enactment of appropriate legislation by
Parliament or any other competent legislature, the 2009Policy should be
implemented throughout the country. Shri Shyam Divan, learned senior
counsel, extensively referred to some of the precedents and submitted
that the Bombay High Court should be directed to specifically deal with
the issue related to establishment of hawking and non-hawking zones so
that the residents may not be adversely affected due to un-regulated
street vending and hawking activities in different parts of the city of
Mumbai.
12.
Shri Pallav Shishodia, learned senior counsel appearing for the
Municipal Corporation of Greater Mumbai argued that the street vendors
/hawkers cannot be allowed to occupy public spaces at each and every
place and the scheme framed by the Corporation in compliance of the
directions given by this Court does not require any modification. Shri
Vijay Hansaria, Shri Anand Grover, learned Senior Advocates and Shri
Sushil Kumar Jain and other learned counsel emphasized that this Court
should direct the municipal authorities to accommodate all the street
vendors / hawkers and stop their harassment, exploitation and
victimization by the State agencies. Shri Prashant Bhushan emphasized
that despite the directions given by this Court from time to time,
including the interim order passed in relation 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
of2013 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 inter venor
in the special leave petitions filed by Maharashtra Ekta Hawkers Union.
14.
We have considered the respective arguments / submissions. Learned
counsel for the parties are ad-idem that the orders passed by this Court
from time to time have not solved the problems of the street vendors
/hawkers and the residents of the cities of Delhi and Mumbai and almost
every year they have been seeking intervention of this Court by filing
interlocutory applications. The experience has, however, shown that it
is virtually impossible for this Court to monitor day to day
implementation of the provisions of different enactments and the
directions contained in the judgments noted hereinabove. Therefore, it
will be appropriate to lift the embargo placed on the entertaining of
matters by the High Courts and we order accordingly. Paragraph 45 of the
judgment reported in (2009) 17 SCC151 shall stand modified and the
street vendors / hawkers, the residents and others adversely affected by
street vending / hawking shall hence forth be entitled to invoke the
jurisdiction of the concerned High Courts for redressal of their
grievance.
15.
In Gainda Ram's case (paragraph 78), this Court had directed that
appropriate Government should enact a law on or before 30th June,
2011.Once the Street Vendors (Protection of
Livelihood and Regulation of Street Vending) Bill, 2012 becomes law, the
livelihood of millions would be saved and they will get protection
against constant harassment and victimization which has so far been an
order of the day. However, till the needful is done, it will be apposite
for the Court to step in and direct that the 2009Policy, of which the
salient provisions are extracted below, should be implemented throughout
the country:
"1.8 A
centre piece of this Policy is the role of Town Vending Committee
(henceforth referred to as TVC) to be constituted at City/Town level. A
TVC shall be coordinated by a convener who should be nominated by the
urban local body concerned. The Chairman of TVC will be the
Commissioner/Chief Executive Officer of the concerned urban local body.
The TVC will adopt a participatory approach and supervise the entire
process of planning, organisation and regulation of street vending
activities, thereby facilitating the implementation of this Policy.
Further, it will provide an institutional mechanism for due appreciation
of the ground realities and harnessing of local knowledge for arriving
at a consensus on critical issues of management of street vending
activities. 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 simple process of
mathematical analysis, a certain number of days or hours on particular
days could be fixed for each vendor in a vending place on a roster basis
through the concerned TVC.
ii)
In addition to vendors' markets/outlets, it would be desirable to
promote week-end markets in public maidans, parade grounds or areas
meant for religious festivals. The week-end markets can be run on a
first-come-first-serve basis depending on the number of vending sites
that can be accommodated in the designated area and the number of
vendors seeking vending places. However, in order to be equitable, in
case there is a heavy demand from vendors the number of week-ends a
given vendor can be allocated a site on the first-come-first-serve basis
can be restricted to one or two in a month depending on demand.
iii) A
registered vendor can be permitted to vend in designated vending zones
without restrictions, especially during non-rush hours. Again in places
like verandahs or parking lots in areas such as central business
districts, e.g. Connaught Place in New Delhi, vendors' markets can be
organized after the closing of the regular markets. Such markets, for
example, can be run from 7.30 PM to 10.30 PM as night bazaars on a
roster basis or a first-come-first-serve basis, with suitable
restrictions determined by the concerned TVC and authorities.
iv)
It is desirable that all City/Town Master Plans make specific provisions
for creating new vending markets at the time of finalization/revision
of Master Plans, Zonal Plans and Local Area Plans. The space reserved in
such plans should be commensurate with the current number of vendors
and their rate of growth on perspective basis (say 10-20 years) based on
rate of growth over a preceding 5- year period. This Policy attempts to
address some of the above concerns, keeping the interests of street
vendors in view vis-�-vis conflicting public interests.
3. Objectives
3.1
Overarching Objective The overarching objective to be achieved through
this Policy is: To provide for and promote a supportive environment for
the vast mass of urban street vendors to carry out their vocation while
at the same time ensuring that their vending activities do not lead to
overcrowding and unsanitary conditions in public spaces and streets.
3.2
Specific Objectives This Policy aims to develop a legal framework
through a model 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 prescribed fee fixed by the
local authority on the recommendations of the Town Vending Committee to
be constituted under this Policy;
d)
Organization of Vendors: To promote, where necessary, organizations of
street vendors e.g. unions / co-operatives / associations and other
forms of organizations to facilitate their collective empowerment;
e)
Participative Processes: To set up participatory processes that involve
firstly, local authority, planning authority and police; secondly,
associations of street vendors; thirdly, resident welfare associations
and fourthly, other civil society organizations such as NGOs,
representatives of professional groups (such as lawyers, doctors, town
planners, architects etc.), representatives of trade and commerce,
representatives of scheduled banks and eminent citizens;
f)
Self-Regulation: To promote norms of civic discipline by
institutionalizing mechanisms of self-management and self-regulation in
matters relating to hygiene, including waste disposal etc. amongst
street vendors both in the individually allotted areas as well as
vending zones/clusters with collective responsibility for the entire
vending zone/cluster; and
g)
Promotional Measures: To promote access of street vendors to such
services as credit, skill development, housing, social security and
capacity building. For such promotion, the services of Self Help Groups
(SHGs)/Co-operatives/ Federations/Micro Finance Institutions (MFIs),
Training Institutes etc. should be encouraged.
4.2
Demarcation of Vending Zones The demarcation of 'Restriction-free
Vending Zones', 'Restricted Vending Zones' and 'No-vending Zones' should
be city/town specific. In order to ensure that the city/town master/
development plans provide for adequate space for street vendors to run
their activities, the following guidelines would need to be adhered to:
a)
Spatial planning should take into account the natural propensity of
street vendors to locate in certain places at certain times in response
to the patterns of demand for their goods/services. For this purpose,
photographic digitalized surveys of street vendors and their locations
should be conducted by competent professional institutions/agencies.
This is to be sponsored by the concerned Department of State
Government/Urban Development Authority/Local Authority.
b)
Municipal Authorities should 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 vendors for security of their
vehicles and wares at night on payment of suitable fees.
d)
Mobile vending should be permitted in all areas even outside the
'Vendors Markets', unless designated as 'No-vending Zone' in the zonal,
local area or layout plans under the master/development plan of each
city/town. 'Restricted Vending' and 'No Vending Zones' may be determined
in a participatory manner. 'Restricted Vending Zones' may be notified
in terms of both location and time. Accordingly, a particular location
may be notified as 'No-vending Zone' only at particular times of the day
or days of the week. Locations should not be designated as 'No-vending
Zones' without full justification; the public benefits of declaring an
area/spot as 'No-vending Zone' should clearly outweigh the potential
loss of livelihoods and non- availability of 'affordable' and
'convenient' access of the general public to street vendors. e) With the
growth of cities/towns in response to urbanization, the statutory plans
of every new area should have adequate provision for 'Vending/hawking
Zones' and 'Vendors Markets.'
4.5.1 Town Vending Committee
a)
Designation or demarcation of 'Restriction-free Vending Zones'/
'Restricted Vending Zones'/No-vending Zones' and Vendors' Markets should
be carried out in a participatory manner by the Town Vending Committee,
to be established at town/city level. A TVC should consist of the
Municipal Commissioner/ Chief Executive Officer of the urban local body
as Chairperson and such number of members as may be prescribed by the
appropriate Government, representing firstly, local authority; planning
authority and police and such other interests as it deems proper;
secondly, associations of street vendors; thirdly, resident welfare
associations and Community Based Organisations (CBOs); and fourthly,
other civil society organizations such as NGOs, representatives of
professional groups (such as lawyers, doctors, town planners, architects
etc.), representatives of trade and commerce, representatives of
scheduled banks and eminent citizens. This Policy suggests that the
representatives of street vendors' associations may constitute forty per
cent of the number of the members of the TVC and the other three
categories may be represented in equal proportion 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 festivals on
important holidays etc. as well as take up necessary improvement of
infrastructure facilities and municipal services with the urban local
body concerned.
4.5.2 The TVC shall perform the following functions:
a)
Undertake periodic survey/census to assess the increase or decrease in
the number of street vendors in the city/town/wards/localities;
b)
Register the street vendors and ensure the issuance of Identity Cards to
the street vendors after their preparation by the Municipal Authority;
c)
Monitor the civic facilities to be provided to the street vendors in
vending zones/vendors' markets by the Municipal Authority;
d) Assess and determine maximum holding capacity of each vending zone;
e)
Work out a non-discretionary system and based on the same, identify
areas for hawking with no restriction, areas with restriction with
regard to the dates, days and time, and, areas which would be marked as
'No Vending Zones';
f) Set the terms and conditions for hawking and take corrective action against defaulters;
g) Collect fees or other charges as authorized by the competent civic authority;
h)
Monitor to ensure that those allotted stalls/vending spots are actually
using them and take necessary action to ensure that these are not rented
out or sold to others;
i)
Facilitate the organization of weekly markets, festival bazaars, night
bazaars, vending festivals such as food festivals to celebrate important
occasions/holidays including city/town formation days etc; and
j)
Ensure that the quality of products and services provided to the public
is as per standards of public health, hygiene and safety laid down by
the local authority.
4.5.4
Registration System for Street Vending A system of registration of
vendors/hawkers and non-discretionary regulation of their access to
public spaces in accordance with the standards of planning and the
nature of trade/service should be adopted. This system is described in
greater detail below.
a)
Photo Census of Vendors: The Municipal Authority, in consultation with
the TVC should undertake a comprehensive, digitalized photo census /
survey / GIS Mapping of the existing stationary vendors with the
assistance of professional organisations/experts for the purpose of
granting them lease to vend from specific places within the holding
capacity of the vending zones concerned.
b)
Registration 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 a family helper;
(iv) Nature of Business;
(v) Category (Stationary /Mobile); and
(vi)
If Stationary, the Vending Location. Children below 14 years would not
be included in the Identity Card for conduct of business.
e)
Registration Fee: All vendors in each city/town should be registered at a
nominal fee to be decided by the Municipal Authority concerned based on
the photo census or any other reliable means of identification such as
the use of biometric techniques.
f) Registration Process:
i)
The registration process must be simple and expeditious. All
declarations, oath, etc. may be on the basis of self-declaration.
ii)
There should preferably be no numerical restriction or quotas for
registration, or prior residential status requirements of any kind.
iii)
Registration should be renewed after every three years. However, a
vendor who has rented out or sold his spot to another person will not be
entitled to seek re-registration.
iv)
There may be a "on the spot" temporary registration process on renewable
basis, in order to allow the street vendors to immediately start their
earnings as the registration process and issue of I-card etc. may take
time.
5.1
If authorities come to the conclusion in any given instance that genuine
public obstruction of a street, side walk etc. is being caused by
street vending, there should be a mechanism of due notice to the street
vendors. The vendors should be informed/warned by way of notice as the
first step before starting the clearing up or relocation process. In the
second step, if the space is not cleared within the notified time, a
fine should be imposed. If the space is not cleared even after the
notice and imposition of fine, physical eviction may be resorted to. In
the case of vending in a 'No-vending Zone', a notice of at least a few
hours should be given to a street vendor in order to enable him or her
clear the space occupied. In case of relocation, adequate compensation
or reservation in allotment of new vending site should be provided to
the registered vendors.
5.2
With regard to confiscation of goods (which should happen only as a last
resort rather than routinely), the street vendors shall be entitled to
get their goods back within a reasonable time on payment of prescribed
fee, determined by TVC.
6.6
Allotment of Space/Stationary Stalls Stationary vendors should 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
Rehabilitation of Child Vendors To prevent vending by children and seek
their rehabilitation wherever such practice exists, in conformity with
the Child Labour (Prohibition & Regulation) Act,1986, the State
Government and Municipal Authorities should undertake measures such as
sending the children to regular or bridge schools, imparting them skills
training etc. 6.8 Promoting Vendors' Organisations To enable street
vendors to access the benefits of social security schemes and other
promotional measures in an effective manner, it is essential that the
street vendors are assisted to form their own organizations. The TVC
should take steps to facilitate the formation and smooth functioning of
such organizations of street vendors. Trade Unions and other Voluntary
Organisations should play an active role and help the street vendors to
organise themselves by providing counseling and guidance services
wherever required."
16. For facilitating implementation of the 2009 Policy, we issue the following directions:
)
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
concerned department(s) 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.
(ii)
Each Town Vending Committee shall consist of representatives of various
organizations and street vendors / hawkers. 30% of the representatives
from the category of street vendors / hawkers shall be women.
iii)
The representatives of various organizations and street vendors /
hawkers shall be chosen by the Town Vending Committee by adopting a fair
and transparent mechanism.
iv)
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.
v)
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.
vi)
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 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 of the relevant provisions of the 2009 Policy and, in
particular, paragraph 4.5.1 (b) and (c).
xi)
Physically challenged who were allowed to operate PCO's in terms of the
judgment reported in (2009) 17 SCC 231 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.
xii)
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.
xiii)
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.
xiv)
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 concerned Bench shall
regularly monitor implementation of the 2009 Policy and the law which
may be enacted by the Parliament.
xv)
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 concerned
Town Vending Committee.
xvi)
The provisions of the 2009 Policy and the directions contained
hereinabove shall apply to all the municipal areas in the country.
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.
18.
The parties, whose applications have remained pending before this Court,
shall be free to institute appropriate proceedings in the
jurisdictional High Court. If so advised, the aggrieved person shall be
free to file petition under Article 226 of the Constitution.
19. All the appeals and I.As are disposed of in the manner indicated above.
20.
The Registry is directed to send copies of this order to the Chief
Secretaries of all the States, Administrators of the Union Territories
and Registrar Generals / Registrars (Judicial) of all the High Courts,
who shall place the order before the Chief Justice for consideration and
necessary directions.
..................J. (G.S. SINGHVI)
..................J. (V. GOPALA GOWDA)
New Delhi;
September 9, 2013
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