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Hawker Issue

The final Order of the Supreme Court was delivered on 9th September, 2013 and Parliament passed The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act in March, 2014.

Important Orders passed by the Bombay High Court and the Supreme Court of India are being made available on our website for your convenience. Each Order is preceded by an abstract which will enable you to know which specific order you would like to download and print.

SUPREME COURT

I) Hawker matter-Supreme Court Order Dated 3rd July, 1985
The Hon’ble Supreme Court clarified that the fundamental right conferred by Art. 19 (1) (g) of the Constitution of India claimed by the hawkers is not violated as “they are not laid to facilitate private trade or business”. It further stated that “if hawkers were to be conceded the right claimed by them, they could hold the society to ransom by squatting on the centre of busy thoroughfares, thereby paralyzing all civil life.” Also, the Court referred the letter written by the then Municipal Commissioner to the then Mayor of Bombay stating restrictions and conditions to be imposed on licensed hawkers. The Court, after considering all the eight conditions, stated that no exception can be taken to some of these conditions whereas some conditions require a little clarification. The Court clarified that a daily fee charged will not confer upon the Hawker the right to do his business at any particular place, as that fee is kind of license to do business and not a fee charged for doing business at any particular place. The Court stated that it was unreasonable to not allow hawkers to sell cooked food, cut fruits and the like and therefore, directed that this condition be dropped. The Hon’ble Court also laid down modalities to be adopted by the Municipal Commissioner with regards to hawking and non-hawking zones. The Court directed that the scheme shall be framed, as far as possible, before October 31, 1985 and the Municipal Commissioner to proceed framing the final scheme on the lines as stated in this order.
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II) Hawker matter - Supreme Court Order Dated 9th December, 2003.
The said order is regarding the appeal by the Hawker Unions against judgements of the Bombay High Court, dated 5/7/2000 and 3/5/2001, in the Hawker matter (Civil Appeal Nos. 4156-57 of 2002). The Hon’ble Supreme Court provides a comprehensive overview of previous important judgments regarding the matter of hawkers in Mumbai, in both the Bombay High Court and the Supreme Court. The Court further enunciates 16-point restrictions and conditions for conducting hawking; with regard to how, where and by whom, hawking may or may not be undertaken. It also modifies the existing list of roads declared as hawking zones and constitutes a committee to deal with all further applications for altering the status of zones from hawking to non-hawking or the converse.
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III) Hawker matter - Supreme Court Order Date 30th July, 2004.
This order follows the order passed by this court on the 9th of December, 2003. Here the Hon’ble Supreme Court of India has ordered that the Bombay High Court orders passed in the month of April, 2004 shall no longer apply. The court held that it was necessary to establish additional committees, in the light of the fact that the committee established by the order dated 9/12/2003 was burdened with many applications. The court also passed another order on the same date regarding the removal of unauthorized hawkers, in a phase wise manner, from non hawking zones and also directed the BMC to stop the construction of hawker plazas in Mumbai.
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IV) Hawker matter - Supreme Court order Dated 1st April, 2005.
The said order to issued notices to six persons, who were instigating hawkers to act against the orders passed by the court. Also, the Police was directed to give complete protection to the MCGM staff, when they set out to clear the hawkers, as ordered by the court.
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V) Hawker matter - Supreme Court order Dated 12th February, 2007.
The said Order provides a brief summary of pertinent sections of previous Orders in this case as well as of other cases, used as authorities in this matter. The Court has then gone on to clarify, amend and reaffirm its previous orders in the matter, especially in relation to the issues of Licensed Hawkers, Handicapped Hawkers, Hawker’s Plazas and intervention application in the Hawker Matter. The Court has also issued further directions in relation to the abovementioned issues. On scrutiny of reports submitted by the committees constituted by Orders dated 9/12/2003 and 30/7/2004, the Court declared that the actions of the committees are in consonance with Court Orders; thereby rejecting the contention of the Hawkers stating the contrary. Finally, the Court, by this Order has outlined the National Policy for Urban Street Vendors, 2004 and clarified the guidelines that the MCGM must adhere to while framing its policy.
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VI) Hawker matter-Supreme Court Order Dated 11th May, 2007
The Hon’ble Court hearing the contempt petition stated that the earlier orders in the hawkers case shall be strictly implemented in letter and spirit. Also, the Court directed the Police Commissioner of Greater Bombay to nominate a responsible officer in each ward, not below the rank of Deputy Superintendent of Police, to assist the Ward staff in identifying such persons involved in the activity of cooking on sidewalks and restraining them from such activity. It laid down procedure to be strictly followed by the officer while carrying out his / her duty in consonance with the said order.
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VII) Hawker matter-Supreme Court Order Date 30th November, 2010
The said Order has deemed its earlier order dated 30th July, 2004 void and ordered the discontinuance of the three member committees subject to certain guidelines, such that the functions of issuing licenses to the hawkers will be discharged by senior officials appointed by the Municipal Commissioner. The work of designating areas as Hawking and non-Hawking Zones was deemed to be completed and this function was not re-assigned to any authority. The court also ordered these arrangements to ply until MCGM’s Hawkers Bye Law 2009 comes into force.
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VIII) Hawker matter-Supreme Court Order Date 9th September, 2013
The said Order has lifted the embargo placed on entertaining of matters by the High Courts and Supreme Court by stating that Paragraph 45 of the judgment reported in (2009) 17 SCC 151 shall stand modified and the street vendors/ hawkers, the residents and others adversely affected by street vending / hawking shall henceforth be entitled to invoke the jurisdiction of the concerned High Courts for redressal of their grievance. The Court ordered that till the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2012 becomes a law, the provisions of the 2009 Policy should be implemented throughout the country. The salient provisions of the 2009 Policy are extracted in the Order. For facilitating the implementation of the 2009 Policy, the Hon’ble Court issued directions.
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BOMBAY HIGH COURT

I) Hawker matter – Bombay High Court Order Dated 1st November, 2017
In the said order, the Court held that that till the vending and non-vending zones are duly notified in accordance with the Street Vendors (Protection of Livelihood and Regulation of Vending) Act, 2014, the hawking activities would be permitted only on roads which have been approved as hawking zones in 2009 Ekta Judgment of the Apex Court. No hawking would be permitted 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. It was also directed that no hawking would be permitted on footbridges and overbridges. Outside places of worship, hawkers can be permitted to sell only such items as are 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.
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II) Hawker matter – Bombay High Court Order Dated 3rd May, 2001.
The said order is regarding modifications in the scheme of the Hawking and the Non-hawking zones. The Scheme was framed in implementation of the directions of the Supreme Court as contained in the Judgment reported in Bombay Hawkers’ Union and Ors. v. Bombay Municipal Corporation & Ors.

The Hon’ble High Court after hearing both the sides approved the modifications and permitted deletion of 56 roads from the list of Hawking Zones. Also, on the question of shifting the licensed stall holders to the Hawking Zones, if they were presently operating in areas falling within Non-Hawking Zones, the Court directed the Corporation to first furnish the particulars regarding the same.

With reference to Cobbler Pitches & Sugarcane crushers, the Court stated that they cannot be permitted in the Non-Hawking Zones. However, if both of these are duly licensed with regular permission granted by the Municipal Corporation, they may be permitted to continue even in Non-Hawking Zones. The Court permitted P.C.O. booths to remain in Non-hawking zones. The Court rejected permission for hawking activity within the periphery of 150 meters from any municipal or other markets.

The Court permitted issuing of temporary hawking licenses by the Municipal Corporation on an experimental basis.
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III) Hawker matter – Bombay High Court Order Dated 2nd August, 2000.
The Hon’ble Court took note of some suggestion submitted by Citizens’ Forum for Protection of Public Spaces (CitiSpace) and directed the municipal corporation to keep in mind the same while implementing their scheme. The Court granted three months time period to the corporation to implement the Scheme.
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IV) Hawker matter – Bombay High Court Order Dated 5th July, 2000.
The said order reiterates the decision given by the Hon’ble Supreme Court in its judgment dated 3rd July, 1985 stating that the fundamental right conferred by Art. 19 (1) (g) of the Constitution of India claimed by the hawkers is not violated. Also, referring to the then Municipal Commissioner’s eight conditions mentioned in the 1985 judgment, the Court expressed its opinion with regard to each of them and have modified some of the conditions.

Further, the Court stated that the station roads leading to suburban stations are to be cleared of the hawkers as there is a huge flow of vehicular and pedestrian traffic both to and fro the station. Hawkers in the surroundings of the religious places and educational institutions were permitted to carry their business. However, the Court strongly stated that the narrow streets and by-lanes have not been declared as “Hawking Zones” and this is to be unexceptionable.

The said order reflects upon the definition of “hawkers” vis-à-vis “traders”. The Court is of the opinion that hawkers cannot be allowed to have a fixed place otherwise there would be no distinction between hawkers and traders, as ordinarily understood. Also, considering the type of roads and available space in the city, the Court opined that the declaration of Non-Hawking Zones cannot be defaulted with.

With reference to the development control regulations, the Court stated that no hawking be permitted in residential areas and on those roads and pavements which are not having shopping line. Also, on similar lines as to MHADA, a draw of lots can be used as a method to accommodate new hawkers. Those who get selected thereafter will be processed for issuance of license.

The Court clarified that place allotted in the hawking zone cannot be a heritable right or a transferable right of anyone. The Court also stated that, except for the fruit juices, food stuffs whether cooked food or in form of cut fruit, shall not be permitted to be sold by hawkers. Also, vending of costly articles, like Electrical appliances, video-tape or audio-tape should not be permitted. The Court directed the municipal corporation to come up with a model of enforcement machinery to implement the hawker scheme.
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V) Hawker matter – Bombay High Court Order Dated 1st March, 2000.
The Court ordered formation of a committee consisting of (i) Shri Kamalkant D. Kagtala, Advocate, (ii) V. R. Bhandare, Advocate, (iii) Neera Punj, Convener Citizens’ Forum for Protection of Public Spaces. It was to consider the submissions made by Bombay Municipal Corporation with reference to the plots and / or areas in each ward identified by it as Hawking Zone under the existing Development Plan and any related matters.
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VI) Hawker matter – Bombay High Court Order Dated 20th April, 1999.
The Hon’ble Court in the said order clarified that the practice of issue of ‘Pawtis’ should not be continued and no amount should be collected from unauthorized or unlicensed hawkers under any head. Thus, vacating the order dated 17th December, 1998 and complying with the directions dated 31st July, 1998 and 30th November, 1998. The Court clarified that this order would not mean that those persons, who are hawking since years, are to be removed and it would be open to the Corporation to take appropriate action in accordance with law. By this order, the Corporation was directed to file an affidavit placing on record the amount collected by it by issue of ‘Pawtis’ from 1st August, 1998 till date.
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