# GAINDA RAM AND OTHERS v. M.C.D. AND OTHERS

- **Citation:** [2010] 12 S.C.R. 996
- **Court:** Supreme Court of India
- **Decided:** 2010-10-08
- **Bench:** G.S. Singhvi, Asok Kumar Ganguly
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gainda-ram-and-others-v-m-c-d-and-others-26319
- **Pages:** 49

## Headnote

C
Hawker matters:
Legislation - Need for- Regulation of squatters/hawkers
in Delhi -
Schemes evolved by New Delhi Municipal
Corporation and Municipal Corporation of Delhi from time to
D time on directions by Supreme Court - Right to carry on
hawking on pavements under control of MCD and NDMC -
Claim of by hawkers - Complaint alleging that steps taken
by NDMC and MCD preventing them from carrying hawking
and vending - Held: Hawkers have a fundamental right to
carry on hawking under Article 19(1) (g) - It is subject to
E reasonable restrictions imposed by law - National Policy on
Urban Street Vendors, 2004 and Scheme framed by NDMC
cannot be called law - National Capital Territory of Delhi Laws
(Special Provisions) Second Act, 2009 which is up to
31.12.2010, and Street Vendors (Protection of Livelihood and
F Regulation of Street Vending) Bill, 2009 have been enacted
to regulate the fundamental right of street hawking and street
vending - Numerous matters are pending before Supreme
Cowt - Thus, structured regulation and legislation imminently
necessary in public interest, to control and regulate
G fundamental right of hawking of vendors and hawkers -
Appropriate Government directed to enact a law to regulate
hawking, before 30.06.2011 - Till such time, grievances of
hawkers/vendors to be redressed by internal dispute redressal
H
996
GAINDA RAM AND ORS. v. M.C.D. AND ORS.
997
mechanisms provided in the Schemes- Writ petition and IA 's
A
disposed of - Municipalities - New Delhi Municipal Council
Act, 1994 - ss. 225, 226, 330 and 369(2) - Delhi Municipal
Corporation Act; 1957 - Constitution of India, 1950 - Articles
19(1)(g) and 19(6).
The instant matters are with regard to regulation of
hawking on the streets of Delhi. In *Sadan Singh's case,
the Supreme Court _laid down certain guidelines for
regulating citizen's right to carry on hawking business on
B
the streets. Pursuant thereto, the New Delhi Municipal
C
Council (NDMC) and Municipal Corporation of Delhi
(MCD) framed Schemes to regulate hawking and street
vending. The said Schemes wer-e modified from time to
time by the order passed by the Supreme Court. The
Thareja Committee and Chaturvedi Committee were
formed to examine the claims of the hawkers but many
D
of the hawkers were .not allotted sites. Meanwhile, several
hawkers filed· cases before the Supreme Court.
Subsequently, NDMC and MCD also framed Schemes for
hawkers and squatters following the National Policy on
Urban Street Vendors, 2004. This Court directed the
E
municipal authoriti_es to implement the Scheme approved
by the Court.
The hawkers filed the instant writ petition and interim
applications claiming a right to carry on business in
F
different parts of the pavements under the control of MCD
and NDMC; and complaining about steps taken by the
NDMC and MCD to prevent them from hawking and
vending.
Disposing of the writ petition and the IA's, the Court G
HELD: 1.1 The hawkers' and squatters' or vendors'
right to carry on hawking has been recognized as
fundamental right under Article 19(1)(g) of the
H
998
SUPREME COURT REPORTS
(2010) 12 S.C.R.
A Constitution of India, 1950 but such right is not absolute
and is subject to reasonable restrictions under Article
19(6) of the Constitution. 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
B 19(1)(d). These two apparently conflicting rights must be
harmonized and regulated by subjecting them to
reasonable restrictions only under a law. [Paras 42 and
77] (1026-B; 1043-H; 1044-A]
C
*Sodan Singh and Ors. vs. New Delhi Municipal
Committee and Ors. (1989) 4 SCC 155 - followed.
Pyare Lal vs. New Delhi Municipal Committee and
another AIR 1968 SC 133 - distinguished.
0
1.2 The rights under Article 19(1 )(g) can only be
controlled by law as contemplated in Article 19(6). Such
law can impose reasonable restrictions. The reasonable
restrictions on the fundamental right under Article
19(1)(g)

## Text

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A
[2010] 12 S.C.R. 996
GAINDA RAM AND OTHERS
v.
M.C.D. AND OTHERS
I.A. Nos.1, 3 & 4 in I.A. No.1 in I.A. No.407
I.A. Nos.9 & 10 in I.A. No.407
B
IN W.P.(C) N0.1699 OF 1987
OCTOBER 08, 2010
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
C
Hawker matters:
Legislation - Need for- Regulation of squatters/hawkers
in Delhi -
Schemes evolved by New Delhi Municipal
Corporation and Municipal Corporation of Delhi from time to
D time on directions by Supreme Court - Right to carry on
hawking on pavements under control of MCD and NDMC -
Claim of by hawkers - Complaint alleging that steps taken
by NDMC and MCD preventing them from carrying hawking
and vending - Held: Hawkers have a fundamental right to
carry on hawking under Article 19(1) (g) - It is subject to
E reasonable restrictions imposed by law - National Policy on
Urban Street Vendors, 2004 and Scheme framed by NDMC
cannot be called law - National Capital Territory of Delhi Laws
(Special Provisions) Second Act, 2009 which is up to
31.12.2010, and Street Vendors (Protection of Livelihood and
F Regulation of Street Vending) Bill, 2009 have been enacted
to regulate the fundamental right of street hawking and street
vending - Numerous matters are pending before Supreme
Cowt - Thus, structured regulation and legislation imminently
necessary in public interest, to control and regulate
G fundamental right of hawking of vendors and hawkers -
Appropriate Government directed to enact a law to regulate
hawking, before 30.06.2011 - Till such time, grievances of
hawkers/vendors to be redressed by internal dispute redressal
H
996
GAINDA RAM AND ORS. v. M.C.D. AND ORS.
997
mechanisms provided in the Schemes- Writ petition and IA 's
A
disposed of - Municipalities - New Delhi Municipal Council
Act, 1994 - ss. 225, 226, 330 and 369(2) - Delhi Municipal
Corporation Act; 1957 - Constitution of India, 1950 - Articles
19(1)(g) and 19(6).
The instant matters are with regard to regulation of
hawking on the streets of Delhi. In *Sadan Singh's case,
the Supreme Court _laid down certain guidelines for
regulating citizen's right to carry on hawking business on
B
the streets. Pursuant thereto, the New Delhi Municipal
C
Council (NDMC) and Municipal Corporation of Delhi
(MCD) framed Schemes to regulate hawking and street
vending. The said Schemes wer-e modified from time to
time by the order passed by the Supreme Court. The
Thareja Committee and Chaturvedi Committee were
formed to examine the claims of the hawkers but many
D
of the hawkers were .not allotted sites. Meanwhile, several
hawkers filed· cases before the Supreme Court.
Subsequently, NDMC and MCD also framed Schemes for
hawkers and squatters following the National Policy on
Urban Street Vendors, 2004. This Court directed the
E
municipal authoriti_es to implement the Scheme approved
by the Court.
The hawkers filed the instant writ petition and interim
applications claiming a right to carry on business in
F
different parts of the pavements under the control of MCD
and NDMC; and complaining about steps taken by the
NDMC and MCD to prevent them from hawking and
vending.
Disposing of the writ petition and the IA's, the Court G
HELD: 1.1 The hawkers' and squatters' or vendors'
right to carry on hawking has been recognized as
fundamental right under Article 19(1)(g) of the
H
998
SUPREME COURT REPORTS
(2010) 12 S.C.R.
A Constitution of India, 1950 but such right is not absolute
and is subject to reasonable restrictions under Article
19(6) of the Constitution. 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
B 19(1)(d). These two apparently conflicting rights must be
harmonized and regulated by subjecting them to
reasonable restrictions only under a law. [Paras 42 and
77] (1026-B; 1043-H; 1044-A]
C
*Sodan Singh and Ors. vs. New Delhi Municipal
Committee and Ors. (1989) 4 SCC 155 - followed.
Pyare Lal vs. New Delhi Municipal Committee and
another AIR 1968 SC 133 - distinguished.
0
1.2 The rights under Article 19(1 )(g) can only be
controlled by law as contemplated in Article 19(6). Such
law can impose reasonable restrictions. The reasonable
restrictions on the fundamental right under Article
19(1)(g) can be imposed either by existing law or by a law
E which may be made by a State in the interest of general
public. Therefore, nothing short of law can impose
reasonable restrictions on a citizen's fundamental right
to carry on hawking under Article 19(1)(g) of the
Constitution. [Paras 43, 45 and 46] [1025-C; 1027-C-D]
F
Bijoe Emmanuel and Ors. vs. State of Kera/a and Ors.
AIR 1987 SC 748; Kameshwar Prasad and others vs. State
of Bihar and Anr. AIR 1962 SC 1166; Kharak Singh vs. State
of UP. and Ors. AIR 1963 SC 1295 - referred to.
G
2.1 The New Delhi Municipal Council (NDMC) framed
H
a Scheme for regulation of squatting and hawking in the
NDMC areas on the basis of guidelines given in *Sodan
Singh's case. In that scheme NDMC divided its area into
four zones and some of the zones have been made non·
GAINDA RAM AND ORS. v. M.C.D. AND ORS.
999
hawking zones. From time to time the said scheme has
A
been modified by the orders passed by this Court.
Subsequently, another scheme was prepared by the
NDMC pursuant to the National Policy on Urban Street
Vendors, 2004. In the said scheme the NDMC referred to
Sections 225 and 330 of the NDMC Act. Section 225 of B
the Act permits squatting only on the permission given
by the Chairman and on payment of such fees in each .
case as the Chairman may think fit. Section 330 of the Act
provides for licence for hawking of articles etc. The said
Section 330 authorizes the NDMC to prevent hawking c
unless there is a licence to that effect granted by the
Chairperson. As per Section 226 of the NDMC, the
Chairperson may without notice cause removal of articles
kept in the public street and Section 369(2) of the Act
provides for punishment for contravention of the
D
provision of the Section 225(1). [Paras 50 and 51] [1028A-E]
2.2 The 2004 Policy provides for setting up of a
vending committee which may consist of representatives
of (a) Municipal Authority, (b) Traffic and Local Police, (c)
E
Public and owning authority, (d) Associations of traders,
residents and also of street vendors both static and
mobile. The 2004 Policy also referred to the Master Plan
of Delhi, 2021 which provides for informal sector in trade
in the planned development of various zones. In the said
F
policy, there is also a division between vending and nonvending areas and it is made clear that no hawking
licence would be issued in non-vending areas. The timing
and the day of hawking was also to be regulated as per
the suggestions of Residents Welfare Association (RWA).
G
Neither the said policy nor the scheme framed by the
NDMC can be called law, except the provisions of
Sections 225, 226, 330 and 369(2) of NDMC Act. (Paras
52, 53 and 54] (1028-E-F; 1029-G-H; 1030-A-B]
H
1000
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A
2.3 Section 388 of the NDMC Act empowers the
NDMC to frame bye-laws relating to the streets which
have to be laid before Parliament under Section 389 of
the Act. These bye-laws may have the status of
subordinate or delegated legislation. Penalty has been
B provided for breach of bye-laws under Section 390 of the
Act. It does not appear that the NDMC has made any byelaw under Section 388 of the NDMC Act so as to regulate
the fundamental right of the hawkers to hawk or squat
on the streets of Delhi. The Schemes framed under the
C direction of this Court or the 2004 Policy which has been
framed by the Government, cannot said to have been
framed under the said power to frame bye-laws and do
not have the status of law or even subordinate legislation.
[Paras 55, 56 and 57] [1030-C-E-G]
D
2.4 Subsequent to the 2004 Policy, a new National
Policy on Urban Street Vendors, 2009 was framed on
17th June 2009. The 2009 Policy recognizes street
vending as an integral and legitimate part of urban retail
trade and distribution system, even when, otherwise,
E street vending is sometimes projected as a major
menace in urban areas aggravating traffic problems. But
the 2009 Policy aims at giving the street vendors a legal
status by providing them legitimate vending and hawking
zores in the city in the town master plans and
F development plans. Therefore, the National Policy directs,
"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
G 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" ..
Therefore, the Policy seeks to institutionalize a part of the
urban street vending through legislation. [Paras 59, ·60
H and 61] [1031-C-G]
GAIN DA RAM AND ORS. v. M.C.D. AND ORS.
1001
2.5 The National Capital Territory of Delhi Laws
A
(Special Provisions) Second Act 2009 was enacted on
23.12.2009 which makes special provisions for the
National Capital Territory of Delhi for a period up to
31.12.2010. Therefore, it is clear that the said law is for
temporary period. From the preamble of the law, it would
B
appear that a strategy and a Scheme was prepared by the
local authorities in the National Capital Territory of Delhi
for regulation of urban street vendors in accordance with
national policy for urban street vendors and the Master
Plan for Delhi, 2021. It was also provided that whereas c
more time is required for orderly implementation of the
Scheme regarding hawkers and urban street vendors and
for regulation of unauthorized colonies, the said law
would have effect only up to 31.12.2010. [Para 62] [1034A-D]
D
2.6 There is also !I Bill called the Model Street
Vendors (Protection of Livelihood and Regulation of
Street Vending) Bill, 2009 by the Government of India,
Ministry of Housing and Urban Poverty Alleviation. The
Bill is to provide for protection of livelihood of urban
E
street vendors and to regulate street vending and for
matters connected therewith. Now if the said Bill is
enacted in the present form, the Bill then prima facie
recognizes the rights of hawkers and vendors under
Article 21 of the Constitution since it seeks to protect their
F
livelihood. 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 the right to hawk on the
streets or right to carry on street vending is part of G
fundamental right under Article 19(1 )(g). However, till the
law is made, the attempt made by NDMC and MCD to
regulate the said right by framing Schemes which are not
statutory in nature is not exactly within the contemplation
of constitutional provision. However, such Schemes
H
1002
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A have been regulated from time to time by this Court for
several years. 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 of the
fact that hawking and street vending should be regulated
B by law. Such a law is imminently necessary in public
interest. [Paras 63, 64, 65] [1034-E-H; 1035-A-C]
2.7 The problem is acute. On the one hand there is
an exodus of fleeting population to metro cities and
towns in search of employment and on the other hand
C with the ever increasing population of cars and other
vehicles in the same cities, the roads are choked to the
brim posing great hazards to the interest of general
public. In the midst of such near chaos, the hawkers want
to sell their goods to make a living. Most of the hawkers
D are very poor, a few of them may have a marginally better
financial position. But by and large they constitute an
unorganized poor sector in the society. Therefore,
structured regulation and legislation is urgently
necessary to control and regulate fundamental right of
E hawking of these vendors and hawkers. [Para 66] [1035G-H; 1036-A-B]
2.8 The issue is vitally important to a very large
section of people, mostly ordinary men and women. Such
F an issue cannot be left to be decided by Schemes and
which are monitored by this Court from time to time. The
fundamental right of the hawkers, just because they are
poor and unorganized, cannot be left in a state of limbo
nor can it left to be decided by the varying standards of
G a Scheme which changes from time to time under the
orders of this Court. [Paras 77 and 79] [1043-A-B-D]
H
2.9 Innumerable IAs have been filed in this Court
along with various objections by the hawkers, most of tii.~
time collectively, complaining about steps taken by
GAIN DA RAM AND ORS. v. M.C.D. AND ORS.
1003
municipal authorities, namely, NDMC and MCD to prevent
A
. them from hawking and vending. This Court has tried its
~ best to somehow deal with the situation. But it is difficult
for this Court to tackle this huge problem in the absence
B
of a valid law. The nature of the problem defies a proper
solution by this Court by any judicially manageable
standards. Therefore, the writ petition and all the IAs are
disposed of with the direction that the problem of
hawking and street vending may be regulated by the
existing Schemes framed by NDMC and MCD, up to 30th
June, 2011. Within that time, the appropriate Government c
is to legislate and bring out the law to regulate hawking
and hawkers' fundamental right. Till such time the
grievances of the hawkers/vendors may be redressed by
the internal dispute redressal mechanisms provided in
the Schemes. [Paras 67, 68 and 69] [1036-B-F]
D
2.10 In view of such Schemes, the hawkers,
squatters and vendors must abide by the Dispute
Redressal Scheme. There should not be any direct
approach to this Court by way of fresh petition or IAs,
bypassing the Dispute Redressal Mechanism provided in
E
the Scheme. However, before 30th June, 2011, the
appropriate Government is to enact a law on the basis of
the Bill mentioned or on the basis of any amendment
thereof so that the hawkers may precisely know the
contours of their rights. These directions are given in
F
exercise of its jurisdiction to protect the fundamental right
of the citizens. The appropriate Government has already
enacted a Bill and, therefore, the initial decision making
in the field of legislative exercise is complete. It has, of
course, to be converted into a law by following the
G
Constitutional process. That is why time is given till 30th
June, 2011. [Paras 75, 76, 77 and 78] (1043-E-G; 1044-BC]
Fertilizer Corporation Kamgar Union (Regd.) Sindri &
H
1004
SUPREME COURT REPORTS
[2010) 12 S.C.R.
A others vs. Union of India and others (1981) 1 SCC 568; K.
Rajendran & others vs. State of Tamil Nadu & others (1982)
2 SCC 273; Bombay Hawkers' Union & others vs. Bombay
Municipal Corporation & others (1985) 3 SCC 528; Olga Tellis
& ors. vs. Bombay Municipal Corporation & others (1985) 3
B sec 545; Saghir Ahmad and another vs. State of UP. and
others AIR 1954 SC 728; Municipal Corporation of Delhi vs.
Gurnam Kaur (1989) 1 SCC 101; Saudan Singh etc. etc. vs.
NDMC and others etc. etc., (1992) 2 sec 458; Gainda Ram
and Ors. vs. MCD (1993) 3 SCC 178; Sadan Singh vs.
C NDMC and others, (1998) 2 SCC 727; Sudhir Madan and
others vs. Municipal Corporation of Delhi and others IA No.
394 in I.A.No. 356 in WP (Civil) No. 1699/1987); Ramesh
Shah vs. MCD and others IA No. 332-333 in WP (Civil) No.
1699/1987 dated 6.11.2000; Bijoe Emmanuel and others vs.
State of Kera/a and others AIR 1987 SC 748; Kameshwar
D Prasad and others vs. State of Bihar and another AIR 1962
SC 1166; Kharak Singh vs. State of UP. and others AIR
1963 SC 1295 - referred to.
Case Law Reference:
E
AIR 1968 SC 133
Distinguished. Para 6
(1989) 4 sec 155
Followed.
Para 3
(1981) 1 sec 568
Referred to
Para 7
F
(1982) 2 sec 213
Referred to
Para 7
(1985) 3 sec 528
Referred to
Para 7
(1985) 3 sec 545
Referred to
Para 7
G
AIR 1954 SC 728
Referred to
Para 8
(1989) 1 sec 101
Referred to
Para 10
(1992) 2 sec 458
Referred to
Para 19
(1993) 3 sec 178
Referred to
Para 24
H
GAIN DA RAM AND ORS. v. M.C.D. AND ORS.
1005
(1998) 2 sec 121
Referred to
Para 27
AIR 1987 SC 748
Referred to
Para 47 and 48
AIR 1962 SC 1166
Referred to
Para 48
AIR 1963 SC 1295
Referred to
Para 48
CIVIL ORIGINAL JURISDICTION : I.A. No. 1, 3 & 4 in I.A.
No. 1, in I.A. No. 407 & in I.A. Nos. 9 & 10, in I.A. No. 407 in
W.P. (C) No. 1699 of 1987 .
.. WITH
I.A. Nos. 2 &.31.A. No. 407 in W.P. (C) No. 1699 of 1987
I.A. Nos. 4 & 5 (A. No. 407 in W.P. (C) No. 1699 of 1987
A
B
c
I.A. Nos. 6 in I.A. No. 407 in W.P. (C) No. 1699 of 1987
o
I.A. Nos. 7 & 8 I.A. No. 407 in W.P. (C} No. 1699 of 1987
W.P. (C) No. 77 of 2010
I.A. Nos. 211, 212 & 213 in C.A. No. 560 of 1998.
E
Vijay Hansaria, L.N. Rao, Rakesh Kumar Khanna, Dr.
Rashmi Khanna, T.S. Doabia, N.K. Sahoo, H.A. Raichura, Rani
Chhabra , P.I. Jose, Sneha Kalita, B.K. Mishra, Vivek Kandari,
Anupam Mishra, Sa,tyendra Kumar, Sunita Bhardwaj, Abhay
Kumar, Madhusmita Singh, Tenzing Tsering, Nikhil Goel,
F
Naveen Goel, A. Venayagam Balan, M.M. Kashyap, Kavita
Wadia: Surya Kant, Purnima Jauhari, Prashant Kumar,
Sukhvinder Kaur, Shiv Kumar, Sunita Sharma, S.W.A. Qadri,
Mukesh Verma, P .S. Tomar, Anil Katiyar, Kiran Bhardwaj,
Sushma Suri, Parekh & Co., Arvind Kr. Sharma, Saurabh
G
Mishra, Goodwill lndeevar, S.C. Patel, Dinesh Kumar Garg,
Suresh Chandra Tripathy, T.V. George, Indira Sawhney, Sanjiv
Sen, Praveen Swarup, P:'(Parmeswaran, Anuja Chopra, Indira
Unninayar, Prashant Naran'g, Sanjay Jain, N. Annapoorni, Gargi
H
1006
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A Khanna, Anil Katiyar, M.P.S. Tomar and Mukesh Verma for the
appearing parties.
The Judgment of the Court was delivered by
GANGULY, J. 1. Hawking on the streets of Delhi, whose
B municipal limits have expanded over the years, has been the
subject matter of several proceedings in this Court. Initially in
the early sixties, this problem surfaced when this Court, hearing
an appeal from a decision dated 4th August, 1966 of the Punjab
High Court, Circuit Bench at Delhi, dealt with this question in
C some detail in the ca·se of Pyare Lal vs. New Delhi Municipal
Committee and another [AIR 1968 SC 133]. In Pyare Lal
(supra), sale of cooked food on public streets which was
creating the problems of unhygienic conditions came up before
this Court in the context of a resolution of the New Delhi
D Municipal Committee stopping such sale. A three-Judge Bench
of this Court held that no person carrying on the aforesaid
business of selling cooked food has any fundamental right to
carry on street vending particularly in a manner which creates
E
unsanitary and unhygienic conditions in the neighbourhood.
2. However, the controversy did not rest there, nor did the
problem of hawking come to an end in view of Pyare Lal's
judgment.
3. Several cases were filed thereafter in different Courts
F and ultimately the leading decision was rendered in the case
of Sadan Singh and others vs. New Delhi Municipal
Committee and others [(1989) 4 SCC 155] by a Constitution
Bench of this Court.
G
4. In Sadan Singh (supra) the petitioners, as hawkers,
H
were carrying on business by squatting on the pavements of
Delhi and New Delhi and those squatters alleged that they were
allowed by the Municipality to carry on such business on
payment of charges described as Tehbazari. As the Municipal
GAINDA RAM AND ORS. v. M.C.D. AND ORS.
1007
[ASOK KUMAR GANGULY, J.]
Authority subsequently refused to permit them to continue their
A
business, that action of the municipality according to those
petitioners, interfered with their fundamental right to carry on
business under Articles 19(1 )(g) and 21 of the Constitution of
India. The correctness of the decision in Pyare Lal (supra) was
also doubted. As such the matter was placed before the
B
Constitution Bench.
5. In Sodan Singh (supra) there was a paradigm shift by
this Court on the interpretation of fundamental right of a hawker
or a squatter under Article 19(1)(g) to carry on business.
C
Various judgments of this Court were considered and in
paragraph 18 (at page 169 of SCC) Justice Sharma (as His
Lordship then was) delivering the majority judgment expressly
held by referring to Pyare Lal (supra) that, "we do not agree
with these observations." However, His Lordship was quick to
add that in the facts considered in Pyare Lal (supra) the
D
decision was correct.
6. In our judgment, the decision in Pyare Lal (supra) was
thus distinguished and confined to the facts of that case.
7. However, this Court in Sodan Singh (supra) took a very
broad view of a citizens right under Article 19(1 )(g) following
its decisions in the case of Fertilizer Corporation Kamgar
Union (Regd.) Sindri & others vs. Union of India and others
[(1981) 1 SCC 568] and also the decision of this Court in K.
Rajendran & others vs. State of Tamil Nadu & others [(1982)
2 SCC 273] and the decision of this Court in Bombay Hawkers'
Union & others versus Bombay Municipal Corporation &
others [(1985) 3 SCC 528] and the Constitution Bench decision
E
F
of this Court in the case of Olga Tellis & ors. vs. Bombay
Municipal Corporation & others [(1985) 3 SCC 545].
G
8. This Court in Sadan Singh (supra) came to the
conclusion that the hawkers and squatters have a fundamental
right to carry on business on the public street, but the same
should be regulated. It was further held by Justice Sharma (as
H
1008
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A
His Lordship then was) that the right of a hawker to transact
business, while going from place to place, is recognized in
India for a long period. Of course such right is subject to
regulation since public streets demand its use by the public and
the streets are not meant to facilitate some citizens to carry on
B any private business. However, such right of hawking for
carrying on business on the street cannot be denied if they are
properly regulated. The learned Judge made it very clear that
the said right is subject to reasonable restrictions under Clause
(6) of Article 19. The learned Judge relying on the ratio in
c Saghir Ahmad and another vs. State of UP. and others [AIR
1954 SC 728] held that streets in India are vested in the
municipality and they have to be used by the municipalities as
trustees. The learned Judge while delivering the judgment
observed:-
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"We as a court in a welfare State do realise the hardship
to which many of the petitioners may be exposed if they
are prevented from carrying on the business. The only
solution for this is the adoption of the policy of full
employment, which even according to leading economists
like Keynes will alleviate the problems of the unemployed
to some extent. But as students of economics we also
realise that every human activity has the 'optimum point'
beyond which it becomes wholly unproductive. It is for the
government to take reasonable steps to prevent movement
of people from rural areas to urban areas. That can be
done by the development of urban centres in rural areas
removed from each other at least by one hundred miles.
This is more a matter of executive policy than for judicial
fiat. We hope and trust that in administering the laws in
force the authorities will keep in view humane
considerations ... "
9. Justice Kuldip Singh, in a concurring but a different
opinion, interpreted the right under Article 19(1)(g) as
comprehensively as possible to include all the avenues and
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[ASOK KUMAR GANGULY, J.]
modes through which a man earns his livelihood excepting of
A
course gambling and trafficking in women. The learned Judge's
interpretation of Article 19(1 )(g) if we may say so, with respect,
is remarkably brilliant. His Lordship held, "in a nutshell the
guarantee takes into its fold any activity carried on by a citizen
of India to earn his living. The activity of course must be
B
legitimate and not anti-social like gambling, trafficking in women
and the like. (See para 28 page 174 of the report).
10. The learned Judge referred to the decision in Bombay
Hawkers' Union (supra) and also to the decision of this Court
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in Municipal Corporation of Delhi vs. Gurnam Kaur [(1989) 1
sec 101] and highlighted the importance of framing regulations
to regulate hawking business by creating hawking and nonhawking zones. The learned Judge in his concurring judgment
made a very pertinent observation after comparing the position
of street trading in India with that prevailing in other countries
D
and noted that even in England where there is complete social
security and the citizens are not driven to the streets to make
out a living out of poverty and sheer unemployment, street
trading is recognized. Considering that an alarming percentage
of population in our country lives below poverty line, the learned
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Judge held that when the citizens by gathering meager
resources try to employ themselves as hawkers and street
traders, they cannot be subjected to a deprivation on the pretext
that they have no right. The learned Judge deplored that despite
repeated suggestions by this Court, the Government has not
F
yet framed regulations for regulating citizen's right to carry on
hawking business on the streets.
11. Subsequently, also again this Court had to deal with
large number of petitions filed by hawkers claiming a right to
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carry on business in different parts of the pavements under the
control of Municipal Corporation of Delhi (MCD) and New Delhi
Municipal Council (NDMC).
12. In Sadan Singh (supra) this Court was of the view that
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A detailed provisions, dealing with all relevant aspects, and
capable of solving the problems of hawking in a fair and
equitable manner should be made and the respondents
(municipal authorities) should proceed as soon as it may be
possible. This Court felt that municipal authorities would be well
B advised to consider suggestions of the hawkers while finalizing
the schemes with due regard to the requirements of the relevant
laws e.g. Delhi Police Act, 1978, the Delhi Control of Vehicular
and other Traffic on Roads and Streets Regulations, 1980 etc.
The Constitution Bench in Sadan Singh (supra) clarified in
c paragraph 24 of the judgment that the demand of the petitioners
therein that the hawkers must be permitted on every road in the
city, could not be allowed, if the road was not wide enough to
conveniently manage the traffic on it, no hawking may be
permitted at all, or may be sanctioned only once a week, say
D on Sundays when the rush considerably thinned out. Hawking
could also be justifiably prohibited near hospitals or where
necessity of security measures so demanded. The demand that
permission to squat on a particular place must be on a
permanent basis was also rejected on the ground that
circumstances were likely to change from time to time.
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13. Pursuant to the directions of this Hon'ble Court, a
scheme was prepared by the NDMC vide its Resolution No.
28 dated 10.11.1989 and the same was placed before the Lok
Adalat held at this Hon'ble Court on November 19, 1989.
F Thereupon, a general order was passed by the Lok Adalat after
going through the scheme submitted by NDMC on the
guidelines laid down by this Court in Sadan Singh (supra) for
implementation of the scheme. A committee consisting of two
members of NDMC and a District Judge or a Higher Judicial
G Officer was to be constituted. Decision rendered by the
committee was to be made binding and final.
14. It was submitted before the Lok Adalat that the NDMC
did not have sufficient land which belonged to the Central
Government and unless the Central Government allotted suitable
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GAINDA RAM AND ORS. v. M.C.D. AND ORS.
1011
[ASOK KUMAR GANGULY, J.]
land, the Municipal Committee was not in a position to A
accommodate all the hawkers/squatters as per the scheme.
The Lok Adalat accordingly suggested that a request was to
be made by the Legal Aid Committee to the Central
Government for the allotment of land. The NDMC as well was
to approach the Central Government for the allotment of suitable
B
land in the areas in which the NDMC could go ahead with this
programme, of accommodating these hawkers/squatters.
These directions appear from the order of the Lok Adalat.
15. The Judicial Officer for the committee was to be
nominated with the concurrence of the High Court. Therefore, C
with the direction of this Hon'ble Court, a Judicial Officer (Shri
G.P. Thareja) was nominated by the High Court to preside over
the Committee which was constituted for looking into the matter
of hawkers in the NDMC area. Thereupon, by an order dated
1st February 1990, this Hon'ble Court directed that because D
the Committee which had been constituted as aforesaid had
become functional, such Committee should proceed to examine
the claims of hawkers. As a matter of first lot, first 100 claims
were to be taken up for examination in view of the scheme
prepared by the Municipal Committee in terms of the direction
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of the Court.
16. Appreciating the fact that since the work allotted to the
Judicial Officer requires full time engagement, this Court by an
order dated 9.2.1990 issued directions requesting the High
F
Court to relieve the said Judicial Officer who was appointed
exclusively for the work. In the said order, directions were also
given to the learned Additional Solicitor General to find out the
possibilities of assigning land to the Municipal Committee for
making it available for hawking.
17. Thereafter, the said Thareja Committee gave its
interim report to this Court and this Court in its order dated
29.1.1991 noticed the said interim report and found that 5000
applications were pending before the Committee.
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18. A complaint was made to this Court that the Thareja
Committee was applying very strict norms for proof of eligibility.
However, this Court by its order dated 13.3.1992 rejected the
said grievance. In order to protect the rights of the genuine
claimants, this Court, after discussing the report of the Thareja
B
Committee, set out nine directions. Those directions are as
under:
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"(1) Out of the 440 claimants, the one-member Thareja
Committee will review the cases of those claimants whose
claims have been rejected for non-compliance of the
standard of proof laid down by Resolution No. 28, if
claimant adduces any other authentic proof in the form of
government or local authority records, the genuineness
whereof is unimpeachable, and the Committee considers
such proof presented to it to be adequate for review. If on
'Perusal such proof is found to be unacceptable, the
Committee may refuse to review its decision;
(2) In regard to the Sarojini Nagar claims, the Committee
may evolve its own criteria or standard of proof de hors
the one laid down by Resolution No. 28 and proceed to
dispose of the claims on the basis thereof. In doing so
fresh claims, if any, received may also be scrutinised;
(3) Public advertisements will be issued by the Committee
in local newspapers having wide circulation inviting claims
from squatters/hawkers who have not preferred claims or
filed proceedings in court by a date to be stipulated
therein, such claims must of course be consistent with the
eligibility criteria laid down in Resolution No. 28. In addition
to such public advertisement to be issued in newspapers
of different languages such as English, Hindi, Urdu, SouthIndian languages, etc., to be determined by the Committee,
handbills and pamphlets shall also be printed and
distributed and pasted in different parts of the five zones
selected for squatting/hawking inviting claims by the
GAINDA RAM AND ORS. v. M.C.D. AND ORS.
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[ASOK KUMAR GANGULY, J.]
stipulated date. The advertisements/pamphlets, etc. will
A
also cover claimants falling within directions (1) and (2)
above;
(4) The Registry of this Court will not entertain any further
Writ Petitions/Special Leave Petitions from any squatter
8
or hawker concerning the sites chosen in the five zones
mentioned hereinabove but will instead direct the
petitioners to approach the Thareja Committee if they have
moved such Writ Petitions/Special Leave Petitions before
the date stipulated by the Committee (which date will be
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communicated to the Registry) and no Writ Petition/
Special Leave Petition or any other proceeding shall be
entertained by the Registry concerning the sites in the five
zones after the stipulated date;
(5) The High Court of Delhi and all courts subordinate
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thereto will also follow the course of action set out in
direction No. 4 hereinabove;
(6) All Writ Petitions/Civil Appeals/ Special Leave
Petitions and CMPs/IAs therein which concern the five
zones will stand disposed of by this order except one in
which orders have been made from time to time and the
claimants of all the matters disposed of pursuant to this
direction will be at liberty to seek further directions in the
one matter kept pending under this direction as interveners
in case such need arises in future. This is essential to
regulate such cases against NDMC;
(7) The interim stay orders will continue in respect of the
224 claimants whose claims have already been scrutinised
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by the Committee. In respect of the other claimants out of
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440 whose claims have been rejected the status quo will
be maintained for two months after the stipulated date in
respect of those claimants who have sought review on or
before the stipulated date. If during the said period of two
months the exercise for review cannot be completed, the
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authorities desirous of taking any action will approach the
Committee and seek its approval. If the Committee is of
the opinion that there is no prima facie case for review it
may permit such action to be taken 10 days thereafter so
that the claimant likely to be affected may in the meantime
approach the Court and obtain appropriate orders. In
respect of all other cases the interim orders, if any, will
continue till the Committee has scrutinised their cases and
rejected them. Liberty is, however, reserved to NDMC to
move for vacating any order if public interest so demands
or it is found that the claimant is in any way misusing it;
(8) The Tharjea Committee will draw up a list of squatters/
hawkers identified by it as entitled to protection so that their
claims can be regulated in future also. In drawing up the
list care should be taken to ensure that one and the same
person does not secure a double benefit; and
(9) The Committee may also draw up a list of squatters/
hawkers on the basis of their actual standing for being
accommodated in future as and when there is a vacancy
in the available space in the five zones or when such space
is expanded or new space within the five zones is cleared
for squatting/hawking. The Committee will also suggest
sites within the zones, over and above those already
identified, which can be made available to accommodate
such surplus squatters/hawkers who cannot be
accommodated in the five zones on account of paucity of
space."
19. In the meantime, several cases were filed before this
Court. From the judgment of this Court in Saudan Singh etc.
G etc. vs. NDMC and others etc. etc., (1992) 2 sec 458, it
appears that it was dealing with Article 32 petitions along with
some Special Leave Petitions filed impugning the order of the
Delhi High Court. In that judgment, this Court after considering
the ratio of Sodan Singh (supra) laid down the principle relating
H to and reasonable restrictions on street trading, as follows:
GAINDA RAM AND ORS. v. M.C.D. AND ORS.
1015
[ASOK KUMAR GANGULY, J.]
"It is, therefore, settled law that every citizen has a right to
A
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. Streettrading is albeit a fundamental right under Article 19(1 )(g)
B
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 c
on the pavement regardless of the rights of others,
including pedestrians, to make use of the pavements. 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
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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." (See para 2)
20 . .,ln Saudan Singh (supra), this Court took note of the
appointment of Thareja Committee as well as the salient
features of NDMC scheme. These features, noted by this Court,
run as under:
"(A) A squatter up to 1977 shall be eligible for the allotment
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of a stall/kiosk while the squatters pertaining to the years
1978 till 1980 shall be eligible for Tehbazari site, if no shop/
kiosk is available. The squatters squatting since between
1981 to 1987 shall be considered for allotment for a
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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.
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(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-licensable 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.
(a)
General Category60%
(b)
Schedule Caste/Schedule Tribe12-1/2%
(c)
Physically Handicapped
(d)
Ex-serviceman2-1 /2%
(e)
War Widows 2%
10%
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(~
Freedom Fighters3%
(g)
Extreme Hardship and Humanitarian grounds
10%."
21. In paragraph 10 of the judgment in Saudan Singh
G (supra), this Court observed that it was dealing with the question
of livelihood and survival of a large number of families and in
such a situation the Court should adopt a compassionate
approach so as to ensure that genuine hawkers/squatters are
not denied their daily bread at the altar of technicalities, while
H at the same time ensuring that those who are out to exploit and
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[ASOK KUMAR GANGULY, J.]
abuse the process of law do not succeed. To achieve these
A
objectives, the Court gave certain directions which were set out
herein above.
22. The Court also gave directions about hawkers/
squatters, who were carrying on their business within the
8
administrative control of MCD. It may be noted that MCD has,
within its jurisdiction, the entire Union Territory of Delhi excluding
the area within the administrative control of NDMC and Delhi
Cantonment.
23. This Court also noted that after partition of this country
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there was a large influx of population to Delhi and the local
authority was constrained to evolve certain norms to rehabilitate
such people. This gave rise to the Tehbazari system.