Sodan Singh v. New Delhi Municipal Corporation, 1989 (4) SCC 155
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- 06 Jan 2025 --
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Sodan Singh v. New Delhi Municipal Corporation, 1989 (4) SCC 155
- Maharashtra Ekta Hawkers Union v. Municipal Corporation, Greater Bombay, (2014) 1 SCC 490 REFERRED
- State Of Maharashtra & Anr vs Indian Hotel & Retaurants Assn.& ..., (2013) 8 SCC 519 REFERRED
- Gainda Ram v. MCD, (2010) 10 SCC 715 RELIED & REFERRED
- Society For Un-Aided P.School Of ... vs U.O.I & Anr., (2012) 6 SCC 1 RELIE
The first Sodan Singh case- 1989 (4) SCC 155: This decisions was by a Constitution Bench of this Court and was rendered on 30.8.1989. It was held that the right to carry on trade or business was not covered by Article 21 of the Connotation of India but was covered by Article 19 (1)(g) and could be reasonably restricted by law made under Article 19(6). It was held that hawking on road - sides fell within the expression `occupation, trade or business' in Article 19(1)(g). It was also held that all puce streets and roads vest in the State but the State holds them as trustee on behalf of the public and the members of the public are beneficiaries entitled to use them as a matter of right. The Municipality has full authority to permit `hawkers and squatters' on the side walks wherever the Municipality considers it practicable and convenient, under the provisions of the Punjab Municipal Act, 1911 (or Delhi Municipal Corporation Act, 1957). But there cannot be a fundamental right vested in a citizen to occupy any particular place on the pavement where he can squat and engage in trading business. Nor can the hawkers assert a fundamental right to occupy any place permanently on a pavement. If the circumstances are appropriate and small trader can do some business for personal guanine the pavement to the advantage of the general public and without discomfort or annoyance to others, there can be no objection. Hawkers cannot be permitted to squat on every road. Whether it is located close to a hospital or whether there is need for security measures in a particular area, etc. and similar eleventh factors has to be taken into account for permitting business on a particular road. Licence has to be given for trading but this does not mean that licence is to be given on a daily basis. Regard must be had also to the provisions of the Delhi Police Act, 1978 and Delhi Control of Vehicular and other Traffic on Roads & Streets Regulation, 1980. This Court, on a consideration of all the above factors, directed the New Delhi Municipal Committee to frame a scheme in regard to the areas or places where hawking / squatting is to be permitted and as to the number of squatters that could be allowed. The authorities would be fully justified in refusing any facility to hawkers who sell costly luxury articles. The right is basically for poor hawkers and not to sellers of luxury items or smuggled goods. Broadly, these are the directions given in the first Sodan Sing's case.
The NDMC Scheme: (10.11.1989) Pursuant to the directions above stated, the N.D.M.C. came forward with a detailed scheme on 10.11.1989. Under the said scheme, the N.D.M.C. area was divided into 5 Zones and the places where these squatters or hawkers could be permitted to trade in each zone were identified. It was also stated that squatting will not be permitted in certain areas because of certain unique characteristics of the area or because of the place being security-sensitive. However, existing permission of Tehbazari or Kiosks in some of these areas were not to be disturbed. Squatting would not be permitted on the footpaths or on road so far as major roads are concerned. No permissions, in verandah of markets which have been declared as public streets, were to be granted.
Annexure A of the scheme gives details of places in each zone where squatting/hawking could be permitted and the total number, of the stalls, kiosks, pan tharas, Mocho tharas, cycle repair tharas, telephone booths, tax booths, vegetable tharas, tehbazari or tolerations which could be given in each zone and also those which could be given on compassionate grounds. Annexure B of the scheme gives the total of stalls, kiosk, etc. already built as 108 degree and states that the number of existing permissions for Tehbazari is 228 and tolerations 106. Still, there are 1500 squatters in N.D.M.C. area to be provide for a eligibility of claimants was to be considered as per criteria stated in para 6 of the Scheme.
Under para 6 of the scheme squatters were divide into 3 categories, (i) those before 1977. (ii) those between 1978 to 1980 and (iii) those between 1981 and 1987. The first category who are the senior most, would get kiosks/stalls subject to availability. Further, "till they are allotted kiosks/stalls, they will be given permission for tehbazari on usual charges". The second category of eligible squatters of 1978-1980 will be given tehbazari permission in their respective area subject to availability f stalls, unless there are kiosks/stalls available as per their seniority. The third category of eligible squatters of 1981 to 1987 would also be considered for allotment of tehbazari, in case suitable vacant spaces in respective zones are available for such allotment. A further procedure for reservation was spelled out as follows:
(a) general category (60%) ; (b) SC/ST category (12 1/2%);
(c) physically handicapped (10%); (d) Ex-serviceman (2 1/2%); (e) war-widows (2%); (f) freedom fighters (3%); (g) extreme hardship and humanitarian grounds (10%).
Paras 7 and 8 of the Scheme mention the conditions for allotment of tehbazari. Only non-licensable trades excluding sophisticated luxury items, imported or smuggled goods) are to be permitted i.e. Pan, Biri, Cigarette, etc. No cooking or sale of food items exposed to dust which could cause health hazard, - was to be allotted. Para 9 of the Scheme dealt with the issue of hawking licences. This question of eligibility was to be examined by a Committee to be appointed.
The Lok Adalat (Dated 19.11.1989) and recommendation as to `finality'.
After the Scheme was framed as above, a Lok Adalat, presided by a learned Judge of this Court and a retired Judge of the Allahabad High Court was held and the learned Judges observed that the job allotment to individual claimants should be given to a Committee consisting of 2 members from the N.D.M.C. and a Judicial Officer of the rank of a District Judge. It was further directed that "the decision by the Committee shall be binding and final".
In other words, the decisions of the said allotment Committee was to be final.
Supreme Court Orders dated 21.12.1989. 1.2.1990. 9.2.1990 We shall next briefly to refer to certain orders of this Court. It was directed on 21.12.1989 that the District Judge, Delhi should nominate a judicial officer with the previous concurrence of the High Court to carry out the suggestion made by the Lok Adalat. It was again directed on 1.2.1990 that initially 100 cases should be examine. By another order dated 9.2.1990 it was directed that the Judicial Officer nominated. could even make surprise inspections etc. and work on a whole time basis.
The Judicial Officer nominated was Mr. Thareja. He gave an interim repot. On 29.1.1991 this Court noticed that 5000 applications were pending before the Officer. This Court directed that the Committee will consist only of Mr. Thareja. In a latter order dated 28.10.1991. this Court stated that the timings 4.00 Pm to 9.00 PM suggested by the N.D.M.C. for the hawkers were not acceptable and that 12.00 Noon to 7.00 PM could be more appropriate.
The second Sodan Singh Case: [1992 (2) SCC 458] (13.3.196) The second judgment is dated 13.3.1992. This court, initially rejected the complaint that the Thareja Committee was applying very strict standards of proof for eligibility and that this was affecting interests of bonafide claimants. But in order to protect genuine claimants, this Court gave a set of nine directions. We do not propose to refer to all of them except two. Under direction 8, the Thareja Committee was to draw up a list of squatters/hawkers identified by it. Under direction 9. the Committee was to draw up a seniority list of squatters/hawkers and the Committee was to already identified". All pending cases were to be treated a disposed of, except one case. No Court was to entertain any fresh case.
Kuldip Singh, J.
1. I have read the erudite judgment of L.M. Sharma, J. wherein it has been held that street trading, whether as an itinerant vendor/hawker or from a stationary position/receptacle/kiosk/foot-path, is a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India. The said right is obviously subject to reasonable restrictions imposed by the State under Article 19(6) of the Constitution. It has further been held that there is no fundamental right of a citizen to occupy a particular place in any street for the purpose of engaging himself in 'street trading.' I respectfully agree with these findings arrived at by Sharma, J. I may, however, add few words to support these findings.
2. The guarantee under Article 19(1)(g) extends to practice any profession, or to carry on any occupation, trade or business. 'Profession' means an occupation carried on by a person by virtue of his personal and specialised qualifications, training or skill. The word 'occupation' has a wide meaning such as any regular work, profession, job, principal activity, employment, business or a calling in which an individual is engaged. 'Trade' in its wider sense includes any bargain or sale, any occupation or business carried on for subsistence or profit, it is an act of buying and selling of goods and services. It may include any business carried on with a view to profit whether manual or mercantile. 'Business' is a very wide term and would include anything which occupies the time, attention and labour of a man for the purpose of profit. It may include in its form trade, profession, industrial and commercial operations, purchase and sale of goods, and would include anything which is an occupation as distinguished from pleasure. The object of using four analogous and overlapping words in Article 19(1)(g) is to make the guaranteed right as comprehensive as possible to include all the avenues and modes through which a man may earn his livelihood. In a nut-shall the guarantee takes into its fold any activity carried on by a citizen of India to earn his living. The activity must of course be legitimate and not anti-social like gambling, trafficking in women and the like.
3. Street trading is an age-old vocation adopted by human beings to earn living. In the olden days the venue of trading and business has always been the public pa streets but, in the course of time fairs, markets, bazars and more recently big shopping complexes and fashionable plazas have come up. In spite of this evolution in business and trade patterns thestreet trading' is accepted as one of the legitimate modes of earning livelihood even in the most affluent countries of the world. In England 'street trading' has been regulated by various Acts of Parliament. Paras 425 to 448 of Halsbury's Laws of England, Fourth edition, Volume 40 deal with this subject. Paras 427 to 430 pertain to 'street trading' in districts as regulated by the provisions of Local Government (Miscellaneous Provisions) Act, 1982. Paras 427 and 428 are reproduced as under :
427. Adoption of street trading code and designation of streets. A district council may resolve that the street trading code is to apply to its district as from a specified day.
Where it has done so, it may by resolution designate any street in its district as a 'prohibited street' in which street trading is prohibited, a 'licence street' in which street trading is prohibited without a licence granted by the district council, or a 'consent street' in which street trading is prohibited without its consent.
428. -- Street trading licences. Application for the grant or renewal of a street trading licence under the street trading code may be made by any person aged seventeen or over in writing to the district council. The council is under a duty to grant the application unless it considers that it ought to be refused on one or more of the following grounds :
1. that there is not enough space for the applicant to trade without causing undue interference or inconvenience to street users ;
2. that there are already enough traders trading in the street from shops or otherwise in the particular goods ;
3. that the applicant desires to trade on fewer than the minimum number of days resolved on by the council;
4. that by reason of some conviction or otherwise he is unsuitable :
5. that he has been licensed by the council but has persistently or refused neglected to pay its fees or charges ;
6. that he has been granted a street trading consent by the council but has refused or neglected to pay its fees;
7. that he has without reasonable excuse failed to avail himself to a reasonable extent of a previous licence.
The licence specifies the street in which, days on which and times between which, and describes the articles in which, the licence holder is permitted to trade, and may contain such subsidiary terms as the council thinks reasonable. Unless previously revoked or surrendered, it remains valid for twelve months or such period as is specified in it, although if the council resolves that the street be designated a prohibited street the licence ceases to be valid when the resolution takes effect. The council may at any time revoke a licence on grounds similar to heads (1), (4), (5) and (7) above, and the licence holder may at any time surrender his licence to the council.
On receiving an application for the grant or renewal of a licence, the council must within a reasonable time either grant the licence as applied for, or serve on the applicant a notice specifying, with its grounds, its proposal to refuse the application, to grant a licence on different principal terms, to grant a licence limited to a particular place in a street, to vary the principal terms or to revoke a licence, and stating that within seven days of receiving the notice the applicant may by written notice require the council to give him the opportunity of making representations. In this case the council may not determine the matter until either the applicant has made representations, or the time for doing so has elapsed, or the applicant has failed to make the representations which he required the council to allow him to make.
A person aggrieved by certain refusals or decisions of a council may appeal to a magistrates' court, and appeal from the magistrates' decision lies to the Crown Court. The council must give effect to the court's decision.
If a licence holder applies for the renewal of a licence before it expires, the old licence remains valid until a new licence is granted or during the time for appealing or whilst an appeal is pending, and where a council decides to vary the principal terms of a licence or to revoke it, the variation or revocation does not take effect during the time for appealing or whilst an appeal is pending.
A licence holder may employ assistance without any further licence being required.
4. Paras 431 to 448 relate to 'street trading' in Greater London and in the city of London. London County Council (General Powers) Act, 1947 and City of London (Various Powers) Act, 1965 Provide for designation of street by the London Borough Council in respect of which applications for grant of 'street trading' licences are entertained. There are provisions for the registration of street traders. The procedure, for grant of Annual licences and the grounds on which such licences may be refused, has been laid-down. There is a complete code, in the shape of various statutes, which regulates the business of 'street trading' in England. Trading in the streets of London from a stationary position is a common sight. Even in the famous Oxford street which is always over-crowded, there are kiosks, receptacles and stalls at every street-junction from where fruits, confectionary, soft drinks, souvenirs, newspapers and various other articles are sold. 'Street trading' is thus one of the traditionally recognised business or trade in England. This is so in spite of the fact that there is a complete social security in that country and as such no compulsion on the citizens to be driven to street trading out of poverty or unemployment. On the other hand abysmal poverty in India warrants outright rejection of the argument that nobody has a right to engage himself in 'street trading'. 'Justice, social, economic and political' and 'citizens, men and women equally, have the right to an adequate means to livelihood' which the Constitution of India promises is still a distant dream. This Court, in various judgments, has reminded the Government of its constitutional obligations to ameliorate the lot of the poor in India. Nothing much has been achieved. An alarming percentage of population in India is still living below poverty-line. There are millions of registered unemployed. The Government, in spite of constitutional mandate is unable to provide them with employment. But when, by gathering meagre resources, they try to employ themselves as hawkers or street-traders, they cannot be stopped on the pretext that they have no right, rather the Government should render all help to rehabilitate them.
5. Mr. Tarkunde contended that street-trading, being a common law right, has to be treated as a fundamental right under Article 19(1)(g) of the Constitution of India. It is not necessary to examine the matter from this aspect. Once street-trading is accepted as legitimate trade, business or occupation it automatically comes within the protection guaranteed under Article 19(1)(g) of the Constitution of India. There is no dispute that public streets are primarily to be used by the public generally as pathways for passing and repassing but there are other ancillary purposes for which the public street can be used as of right. In Manzur Hasan v. Muhammed Zaman 52 IA 61 the Privy Council held as under :
In India, there is a right to conduct a religious procession with its appropriate observances through a public street so that it does not interfere with the ordinary use of the street by the public, and subject to lawful directions by the Magistrates. A civil suit for a declaration lies against those who interfere with a religious procession or its appropriate observance.
6. In Saghir Ahmed v. The State of U.P. and Ors. : [1955]1SCR707 , this Court held that a business of transporting passengers with the aid of vehicles was a trade or business and as such was guaranteed under Article 19(1)(g) of the Constitution of India. In Himat Lal K. Shah v. Commissioner of Police, Ahmedabad and Anr. : [1973]2SCR266 , this Court held that right to hold a public meeting on a public street is a fundamental right under Article 19(1)(a) and (b) of the Constitution of India and the same cannot be arbitrarily denied. There is thus no justification to deny the citizens of their right to earn livelihood by using the public streets for the purpose of trade and business.
7. In India there are large number of people who are engaged in the business of'street trading. There is hardly a household where hawkers do not reach. The house-wives wait for a vegetable vendor or a fruit seller who conveniently delivers the daily-needs at the door-step. The petitioners before us are street-traders of Delhi and New Delhi areas. Some of them have licences Tehbazari from Municipal Corporation of Delhi/New Delhi Municipal Committee but most of them are squatters. There is practically no law regulating street trading in Delhi/New Delhi. The skeletal provisions in the Delhi Municipal Corporation Act, 1957 and the Punjab Municipal Act, 1911 can hardly provide any regulatory measures to the enormous and complicated problem of street trading in these areas.
8. In Bombay Hawkers' Union and Ors. v. Bombay Municipal Corporation and Ors. 1985(3) SCC 526, this Court suggested that schemes be framed to regulate the hawking business by creating hawking and non-hawking zones. Again in Municipal Corporation of Delhi v. Gurnam Kaur : AIR1989SC38 , this Court observed as under : .We feel that the Municipal Corporation authorities in consultation with the Delhi Development Authority should endeavour to find a solution on the lines as suggested in Bombay Hawkers' Union i.e. by creating Hawking and Non-Hawking Zones and shifting the pavement squatters to areas other than Non-Hawking Zones. The authorities in devising a scheme must endeavour to achieve a twin object viz., to preserve and maintain the beauty and the grandeur of this great historic city of Delhi from an aesthetic point of view, by reducing congestion on the public streets and removing all encroachments which cause obstructions to the free flow of traffic, and rehabilitate those unfortunate persons who by force or circumstances, are made to ply their trade or business on pavements or public streets.
9. Street Trading being a fundamental right has to be made available to the citizens subject to Article 19(6) of the Constitution. It is within the domain of the State to make any law imposing reasonable restrictions in the interest of general public. This can be done by an enactment on the same lines as in England or by any other law permissible under Article 19(6) of the Constitution. In spite of repeated suggestions by this Court nothing has been done in this respect. Since a citizen has no right to choose a particular place in any street for trading, it is for the State to designate the streets and earmark the places from where street trading can be done. In action on the part of the State would result in negating the fundamental right of the citizens. It is expected that the State will do the needful in this ' respect within a reasonable time failing which it would be left to the courts to protect the rights of the citizens.
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