LexMAHARASHTRA EKTA HAWKERS UNION AND ANR. versus MUNICIPAL CORPORATION, GREATER MUMBAI AND ORS.
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MAHARASHTRA EKT A HAWKERS UNION AND ANR. A v. MUNICIPAL CORPORATION, GREATER MUMBAI AND ORS. DECEMBER 9, 2003 [S.N. VARIA VA AND H.K. SEMA, JJ.] Constitution of India Article 19(1)(g) and (6)-Reasonable restrictions-Hawking-Held, hawkers have right to carry on their trade or business-The right can be subjected to reasonable restrictions keeping B in view convenience of the public, security etc.-Scheme fi·amed by High C Court for regulating hawking business-Scheme modified-Restrictions/ conditions laid down for hawking business-Directions issued. Constitution of India-Article 21-Right to life and personal liberty under-Hawking Held, not a fundamental right. D In Bombay Hawkers' Union v. Bombay Municipal Corporation, (1985) 3 SCC 528 the Court laid down certain guidelines in respect of the scheme proposed by the Municipal Commissioner for regulating hawking activities in Bombay and directed the Municipal Commis- sioner to frame a final scheme on the basis of the guidelines suggested E by it. Pursuant to the judgment, the Bombay Municipal Corporation constituted an Advisory Committee and a draft scheme was framed on 12.8.1996. Under the draft scheme, 488 zones were shown as hawking zones and 28 sites were earmarked for construction of hawkers' plazas. 49,000 hawkers were sought to be accommodated in the said draft F scheme. Highways, arterial and trunk roads, footover bridges, sub- ways, certain distance around railway stations, certain radius around municipal markets, religious places, educational institutions, medical institutions and large traffic junctions, were totally banned for hawk- ers. G Various aspects of the draft scheme framed by the Bombay Municipal Corporation were challenged by filing a number of writ petitions. The draft scheme was further modified by the Bombay Municipal Corporation and the number of hawking zones were brought down from 488 to 377. The number of hawkers who could be H 581 582 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R. A accommodated was brought down to 38,000. The proposal for con- struction of hawking plazas was deleted. On 1.3.2040, the High Court constituted a Committee, which heard and considered representations from various persons. The said B Committee further reduced the number of hawking zones to 187. The High Court sanctioned the scheme with a few modifications. The High Court, inter alia, approved exclusion /of all major, trunk and arterial roads from hawking zones and disapproved the idea of creation of hawking plazas. C The aggrieved parties filed special leave petitions before the Court questioning the scheme framed by the High Court. The Court, adjourning the matter for further information from Bombay Municipal Corporation, partially modifying the scheme and D laying down restrictions/conditions for regulation of hawking activities. HELD: 1.1. The hawkers have a righ.t under Article 19(1) (g) of the Constitutio~ of India to carry on their trade and business. This right however is subject to reasonable restrictions under Article 19 (6) of the Constitution of India. Thus hawking may not be permitted where e.g. E due to.narrowness ofroad free flow of traffic or movement of pedestrians is hindered or where for security reasons an area is required to be kept free or near hospitals, places of worship etc. (596-B-C] 1.2. There is no fundamental right under Article 21 of the F Constitution oflndia to carry on any hawking business. There is' also no right to do hawking at any particular place. [596-C-D) ' Bombay Hawkers' Union v. Bombay Municipal Corporation, [1985) 3 SCC 528; Olga Tellis and Others v. Bombay Municipal Corporation and Others, [1985) 3 SCC 545 and Sodan Singh and Others v. New Delhi G Municipal Corporation and Others, [1989) 4 sec 155, referred to. 1.3. As the hawkers have a fundamental right under Article·l9 .(1) (g) of the Constitution of India it would not be correct to unreasonably restrict such a right, except under circumstances set out H in the guidelines laid down by the Court in the Bombay Hawkers Union's MAHARASHTRA EKTA HAWKERS UNION v. MUNICIPAL CORPN. 583 case and other reasonable restrictions. The correct approach should A be to ascertain/earmark areas where, as per the guidelines, hawking cannot be permitted. Thereafter all other areas/streets must be hawking zones. (596-G-H; 597-A-B) Bombay Hawkers' Union v. Bombay Municipal Corporation, (1985) 3 sec 528, referred to. B
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