SHAMI Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The petitioners are hawkers carrying on the business of hawking since a long time and they are all permanent residents of Bangalore. The petitioners are transacting the said business in public places in the vast space available to them by the side of 5th Main Road, Gandhinagar, Bangalore, in front of Tribhuvan Theatre and an Ice-Cream Parlour called "Sukhsagar Ice-Cream Parlour". They are carrying on the business on the pavements. Hawking has not gone without the notice of either the Corporation of the City of Bangalore or the Police. The grievance of the petitioners is that the police attached to respondent-3 Police Station periodically visit the places of hawking and remove all the articles in the possession of the hawkers and, thereafter, proceed to serve notice on them to appear before the concerned Court of the Magistrate to defend themselves against charges made u/S 92(g) of the Karnataka Police Act, 1963. It is stated that, on account of their helplessness and predicament, the accused would prefer to pay the fine imposed on them rather than contest the cases. The fine imposed by the Court range between Rs.25/- and Rs. 100/- and thereafter the hawkers would be back to business at the same places. Once the fine was paid, the Police Station concerned would return the articles seized from the petitioners some times partly and some times wholly. When articles are seized from the hawkers, it is alleged that the police are not in the habit of preparing an inventory and supplying a copy of the inventory to the petitioners and to the persons similarly placed. The petitioners had even alleged that if they persisted for return of all the articles seized from them, they would have to face consequences of personal insecurity as well as detention behind the bars in the Police Station.

(2.) In these writ petitions, the petitioners have sought for a declaration that the action of the 3rd respondent in interfering with the hawking trade of the petitioners and also in prosecuting them u/S : 92(g) of the Karnataka Police Act, 1963 (hereinafter referred to as 'the Act') is unconstitutional and further the petitioners have prayed for a direction to the respondents to refund the fines collected from the petitioners besides payment of compensation and further for an order of interdiction restraining respondent-3 from interfering with the hawking rights of the petitioners in the trading area where they are transacting their business in 5th Main Road, Gandhinagar, Bangalore, and particularly in front of Tribuvan Theatre and lastly for a direction to respondents- 1 and 4 to make law permitting pavement trading subject to reasonable restrictions in public interest on the lines laid down by the Supreme Court in Sodan Singh v. New Delhi Municipal Committee, AIR 1989 SC 1988.

(3.) In the statement of objections filed by respondents-1 to 3, they have denied knowledge of the petitioners' carrying on business as hawkers since last 14 years in front of Tribhuvan Theatre in 5th Main Road, Gandhinagar and have denied that the footpaths are wide enough to carry on hawking business on the pavement and that they will not interfere or obstruct the traffic on the pavement or cause public nuisance.