SAUDAN SINGH MURARI LAL SITA RAM LAJWANTI DEVI DEVENDER KUMAR DELHI PRADESH PATRI DUKANDAR FEDN SUDARSHAN SINGH SAT PRAKASH BALRAJ SANTOSH BEN KUWAR SINGH LEKHRAJ P N MISHRA BHAGWAT SWARUP BISWANAT Vs. NEW DELHI MMUNICIPAL CORPORATION

JUDGEMENT

(1.) THE Judgment of the court was delivered by

(2.) A large number of writ petitions were filed in this court by persons claiming a right to trade on the pavements situate within the areas under the control of the Municipal Corporation of Delhi (MCD) and the New Delhi Municipal Committee (NDMC) in different parts of the city of Delhi. These writ petitions filed under Article 32 of the Constitution and certain appeals brought under Article 136 of the Constitution against adverse judgments of the Delhi High court were referred to a Constitution bench of this court for deciding on the grievance of the pavement traders that the Municipal Authorities were violating their fundamental rights under Articles 14, 19(1(g) and/or 21 of the Constitution by refusing to permit them to trade on streets and footpaths in different localities of the city of Delhi. The Constitution bench by its judgment dated 30/08/1989 in Sodan Singh v. New Delhi Municipal Committee came to the conclusion that 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 street pavements are meant exclusively for pedestrians and cannot be put to any other use. Proper regulation is, however, a necessary condition, for otherwise the very object of laying roads would be defeated. While conceding that all public streets and roads in the country vest in the State, the Constitution bench held 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 for trading as a matter of right subject of course to similar rights possessed by every other citizen including pedestrians. The right of a pavement-hawker is, however, subject to reasonable restrictions under clause (6 of Article 19 of the Constitution and the State as trustee is entitled to impose all necessary limitations on the character and extent of user by such pavement hawkers. The Constitution bench, however, clarified that there cannot be a fundamental right of a citizen to occupy a particular place on the pavement where he can squat and engage in trading business. Nor can the hawker assert a fundamental right to occupy permanently specific places on any pavement. It recognised the right under Article 19(1(g) of the Constitution but negatived the submission based on Article 21. It held that the right to carry on any trade or business and the concept of life and personal liberty enshrined under Article 21 have no connection whatsoever and, therefore, Article 21 has no application. In paragraph 17 Sharma, J. speaking for the majority observed as under

(3.) ON several pavements large number of such traders were carrying on business since quite sometime; many of them were stationary, some had raised wooden 'takhats' while others were squatting on the pavements in front of shops and near public places. 'Tehbazari' was being recovered from them by the NDMC. The Committee was required to scrutinise the claims of the pavement hawkers and at the same time look into their grievances. This was a time-consuming exercise. Keeping that in view interim directions were issued on 23/02/1990 to the following effect: "We are of the view that until the scheme drawn up pursuant to the directions of the Constitution bench is finalised, the petitioners in the several writ petitions placed before us as a group today should be permitted to hawk in the area where they claim to be carrying on the operation without a right to either sit down with or without their merchandise to be sold on the pavements in front of licensed shops or on the pavements as such but as soon as the shops close down in the evening it shall be open to them to settle down with their goods and squat on the pavements and sell their goods. ON holidays and special festival occasions as per the prevailing practice they shall be entitled to squat throughout the day. This order is totally interim in nature without prejudice to the stance of both parties and shall not create any right nor prejudice any right, if any." Alter this interim order was made a direction was given by the order of 23/03/1990 that pending receipt of the report from the Committee hawking will be permitted subject to the same being regulated in sensitive areas. During preliminary scrutiny, however, it was found that 'takhats' were given on hire by those who claimed to possess them on rentals varying from Rs. 300.00 to Rs. 1,000.00 per day depending on the season or the 'takhat-holders' used to carry on business at the said 'takhats' through servants while they themselves attended to their business elsewhere and at certain places the 'takhat-holders' whose names appeared in the petitions were non-existent i.e. the orders were in fictitious names. That being the position the Committee considered it imperative to undertake a strict scrutiny to ensure that the benefit of the scheme percolated to the deserving and not to those who were merely exploiting the fluid situation by obtaining court orders on distorted and inaccurate facts. The Committee, therefore, invited claims in the form of a statement on oath coupled with original genuine documents in support of it. This was done by public notices at the spot and through counsel in case of pending cases. In addition local visits were made to verity presence of the claimant at the site where he professed to carry on business and if not found at such visits he was asked to substantiate his claim by proof of challan, fine receipts or tehbazari receipts. The underlying idea was to eliminate bogus and fictitious claims. Records of NDMC were also checked for cross verification.