SOUTH CALCUTTA HAWKERS ASSOC Vs. C M C

JUDGEMENT

(1.) This is an appeal along with an application for stay and/or interim order against the judgment and order dated 3rd December 1996 passed by the learned trial judge in C.O. No. 18375(W) of 1996 by the writ petitioners/appellants, whose writ petition was rejected summarily as similar writ petition has been disposed of by another learned single Judge of this court in respect of writ petition fled by some other Hawkers Association which was disposed of V.K. Gupta, J. of this Hon'ble Court.

(2.) The facts are not in dispute that the City of Calcutta for several years, the State Government and the Municipal authorities have allowed hawkers not only to squat, but also to make unauthorised and illegal construction on the footpath and roads in gross violation of all Rules and Regulations and that several Hawkers Unions have been formed under the umbrella of some political parties to protect rights and interests of those hawkers. In 1985 a writ petition was filed by some of the hawkers in Howrah Station area claiming rights that not only they have squatted but to make temporary sheds and structures on the pavements as because they were apprehending threats against them and moved a writ petition which was disposed of by one of us (B.P. Banerjee, J.) in Gopal Basak v. State of West Bengal & Ors. reported in AIR 1986 Cal 182 in that case the contentions of the hawkers were that they have right-to carry on trade of hawker in the manner they are doing. Considering the meaning of the word 'hawker' in the dictionary and considering the legal aspect of the matter it was held that the hawkers have no right to squat and to make temporary sheds on the pavement and/or on streets even though they were granted by license by the Municipal authority to peddle the goods standing on the side of the mad in the gutter. It was observed in that case that it was a duty of the Municipal authority not to allow such illegal and unauthorised construction on public roads that are property of public in respect of which the Municipality was a trustee. It was also observed that the paramount consideration of Municipal authorities is to see the public have free access and public hygiene and public safety are maintained, but unfortunately in spite of the gold judgment though passed sitting singly by one of us, the hawkers in the City of Calcutta and Howrah were allowed to occupy footpath and roads in a large number and brought about a situation which the Government and the Municipal authority found alarming and consequently it appears that 10 years after the judgment of this court the State Government and the Municipal authorities had taken up a job of cleaning the footpath with the help of the police and Municipal employees and with buldozer to remove the unauthorised construction and to make the City free of hawkers after the decision was delivered in Gopal Basak v. State of West Bengal & Ors. reported in AIR 1986 Cal 182, in which the judgment delivered in 2nd April. 1985. The Supreme Court had occasion to consider the question of encroachment of footpaths by pavement dweller, in Olga Tellis v. Municipal Corporation of Greater Bombay AIR 1985 SC 130. Thereafter several judgments were pronounced by the Supreme Court on this aspect of the matter.

(3.) In this appeal Mr. Ajit Kumar Panja, learned counsel, appearing on behalf of the petitioners/appellants submitted that for the purpose of tackling the problem of unauthorised occupation of public land and through fares by hawkers, the West Bengal State Assembly (Ninth Legislative Assembly) constituted a committee of petitions. Such committee was constituted in accordance with the provisions of rule of Chapter XXV of the Rules of Procedure and Conduct of Business in the West Bengal Legislative Assembly. The said committee was constituted with 15 members from all political parties and the committee after consideration of the matter and after examination of several witnesses including the hawker's representation as well as after visiting various place of India had submitted a report with some recommendations.