IGINAL JURISDICTION Special Leave Petition C No 15257 of 1987
From the Judgment and Order dated 2341987 of the Delhi High Court in CMP No 268 of 1987
VM Tarkunde DD Thakur Govinda Mukhoty AP Singh KN Rai section Balakrishnan RN Keswani RF Nariman PH Parekh DY Chanderchud JP Pathak Shishir Sharma Ms Gitanjali Mrs Biraj Tiwari Ms Sunita Sharma NK Sahoo Arun Jaitley Ms Bina Gupta Ms Madhu Khatri LK Gupta RC Kaushik Rajiv Sharma BS Bali MC Dhingra AS Bawa VK Verma Kirpal Singh AS Pundir section Srinivasan Mrs Sushadra BB 1043 Tawakley SK Mehta Dhruv Mehta Atul Nanda Ms Mridula Ray RM Tewari Ms Rani Jethmalani Ajit Singh Bawa and Vijay Verma for the Petitioners
G Ramaswamy Additional Solicitor General RB Datar OP Sharma Dr LM Singhvi AK Sen Ranjit Kumar RC Gubrele RK Maheshwari Mensoor Ali AM Singhvi D Bhandari N Waziri Mrs Madhu Bhandari KB Rohtagi SK Dhingra Baldev Atreya SB Saharya VB Saharya KR Gupta RK Sharrna Vimal Sharda Vivek Sharda Mrs Nanita Shanaa Aruneshwar Gupta Inderbir Singh Alag and Sushil Kumar for the Respondents
Mrs Sushma Suri BB Sawhney PK Manohar Mrs Indra Sawhney Mrs Abha Jain PK Jain SS Hussain Amlan Ghosh Jitendra Sharma RD Upadhyay YK Jain DD Shanaa Rajesh Naresh Kabkshi Mrs Urmila Kapur MM Kashyap Anis Ahmad Khan Manjeet Chawla SN Bhatt N Ganpathy P Parmeshwaran AS Pundir Pandey Associate Arun K Sinha MB Lal AK Sanghi and SM Ashri for the appearing parties
The following Judgments of the Court were delivered SHARMA J
The petitioners in all these cases claim the right to engage in trading business on the pavements of roads of the city of Delhi
They have asserted that they have been pursuing their trade with the permission of the municipal authorities for some time but recently there has been illegal interference by them
Some of the petitioners have moved this Court under Article 32 of the Constitution and others impugn adverse judgments of the Delhi High Court dismissing their claim
As the petitioners have challenged the correctness of the decision of a Division Bench of this Court in Pyarelal vs NDMC and another 1967 3 SCR page 747 these cases were placed for hearing before a larger Bench
The petitioners in their applications before this Court have alleged that they were allowed by the respond ents to transact their business by occupying a particular area on the pavements on payment of certain charges de scribed as Tehbazari
It is contended that the municipal authorities by their refusal to permit the petitioners to continue with their trade are violating their fundamental right guaranteed under Article 191g and 21 of the Con stitution
They have also 1044 complained of mala fides arbitrariness and discriminatory conduct attracting Article 14 of the Constitution
The respondents besides denying the facts alleged by the petitioners contended that nobody has got a legal right to occupy exclusively a particular area on the road pave ments for pursuing a trading business and nobody can claim any fundamental right in this regard whatsoever
It has been strenuously urged that the roads are meant for the use of general public for passing and re passing and they are not laid to facilitate the carrying on of private business
The main argument on behalf of the petitioners was addressed by Mr Tarkunde who appeared for petitioner Sodan Singh in SLP No 15257 of 1987
Several learned advocates representing the other petitioners besides adopting the main argument made brief supplementary submissions
The place where petitioner Sodan Singh claims to have the right to squat for soiling ready made garments is within New Delhi
Several other petitioners have similar claims against the New Delhi Municipal Committee
The remaining petitioners allege that they have been pursuing their squatting business within Delhi as defined in the Delhi Municipal Corporation Act which is administered by the respondent Municipal Corporation of Delhi
Separate arguments have been made on behalf of the New Delhi Municipal Committee and the Munici pal Corporation of Delhi
Mr Tarkunde urged that petitioner Sodan Singh is a poor hawker making his both ends meet by selling ready made garments on an area of 8  x 24  near Electric Pole No 12 Janpath Lane New Delhi as illustrated in the attached map Annexure A  to the petition
Earlier he was permitted to hawk from time to time by the respondent under licences as per Annexure A 2  but now the privilege is being denied to him and his goods were removed forcibly from the pavement and were later released only on payment of cost of removal charges
In the counter affidavit of the respondent the allegations have been denied and it has been pointed out that the photo copy of the licence Annexure A 2  itself shows that the petitioner was permitted to sell Channa  and Moongphali  on a Vehngi  on and around Bus stop No 430 on Pt
Pant Marg and he was at no point of time allowed to occupy a fixed place for carrying on business in ready made garments
We do not propose to go into the facts of this or the other petitions and would leave the individual cases to be dealt with by the Division Bench in the light of the general principle which will be discussed in this judgment
1045 7
The Municipal Corporation of Delhi was established by a notification issued under section 3 of the Delhi Municipal Corporation Act 1957 and the provisions of that Act are relevant for the majority of the present cases
The other cases relate to the other areas forming part of the Union Territory of Delhi governed by the provisions of the Punjab Municipal Act 1911
However the main submissions in all these cases made on behalf of both sides have been with respect to the general principles applicable in India about the right to carry on business by squatting on pavements of public streets
Mr Tarkunde contended that the petitioners are poor people and depend on their business for their livelihood
If they are not allowed to occupy some specific place for conducting their business they may starve
This will lead to violation of their fundamental right under Article 21 of the Constitution
Reliance was placed on the decision in Olga Tellis and others vs Bombay Municipal Corporation and others  The learned counsel further said that the two respondents have been in the past allowing squatter traders on the pavements on payment of Tehbazari charges
He drew our attention to the counter affidavit of the respondent in SLP Nos
4519 23 of 1986 at page 146 where a resolution by the New Delhi Municipal Committee has been mentioned in paragraph III
In the case of Delhi Munic ipal Corporation also several documents have been relied upon for showing that specific areas have been allowed to be occupied for the purpose of trading business from time to time
The learned counsel argued that since the two munici palities have been settling specific areas for the purpose of squatting it is not open to them to deny squatting rights to the petitioners and other persons situated in similar circumstances
In Pyare Lal etc
vs NDMC  the New Delhi Municipal Committee banned the sale of cooked edibles on public streets and prevented the petitioners licensed vendors of potato chops and other edibles from continuing with their business
After unsuccessfully moving the Punjab High Court they came to this Court
The appeals were dismissed holding that persons in India cannot claim a lawful right to pursue street trading and the NDMC was perfectly authorised to take steps under section 173 of the Punjab Municipal Act for stopping the business
It was also observed that the NDMC was not empowered under the Act to allow trade on public streets on a permanent basis and that permission for sale of goods could be granted only on special occasions on temporary basis as in the case of festivals etc
Reliance had been placed on behalf of the 1046 petitioners on certain passages from Halsbury s Laws of England which the Court distinguished on the ground that street trading was regulated by certain statutes in England and there were no such provisions applicable in the cases before this Court
The right to pursue street trading in India was thus negatived
Mr Tarkunde contended that it is not correct to deny the members of the public their right to engage in business on the public streets in the country
He said that this is one of the fundamental rights guaranteed both under Article 191g and Article 21
According to the learned counsel the practice of the street trading is well established for a considerable time in all the civi lised countries of the world including India England and United States of America
Refuting the suggestion made on behalf of the respondents that it was only a hawker who sells his goods while moving from door to door and place to place who is allowed on the public streets Mr Tarkunde referred to Halsbury s Laws of England Vol 40 paragraphs 431 to 446 under the heading Street Trading in Greater London 
It was suggested that the right of the members of the public in this regard was rounded on the common law right
The learned counsel further relied on the third paragraph of section 253 of the Chapter Highways Streets and Bridges  of 39 American Jurisprudence 2nd Edition which reads as follows A municipality s power to regulate the use of streets for private gain is to be liberally construed
The purpose of such regulations is to promote public safety and not to regulate and control indirectly the user s business as such
There is no authority in a municipality to prohibit the use of the street by any citizen or corporation in the carrying on of a legitimate business harmless in itself and useful to the community which is independent of the police power under which reasonable regulations in the promotion of the public order safety health and welfare are proper
In his reply Mr Singhvi the learned counsel for NDMC pointed out that the first two paragraphs of the aforementioned section 253 which are quoted  below negative the right asserted on behalf of the petitioners and paragraph 3 mentioned above has to be read in that light
section 253
Business purposes Individuals do not have the inherent right to conduct their private business in the streets nor can they acquire a 1047 vested right to use the streets for carrying on a commercial business
However individuals do have the right to use the streets to some extent for the purpose of bartering or trading with each other or for prosecuting a busi ness trade or calling although they cannot legally carry on any part of their business in the public streets to the annoyance of the public or supply the deficiencies in their own premises by monopolizing the street or walk
The use of public streets as a place for the prosecution of a private business for gain is generally recognised as a special or extraordinary use which the controlling public authority may prohibit or regulate as it deems proper
When a municipality does permit pri vate individuals to have exclusive possession of the street surface for a private business use such permit is so unusual and beyond the ordinary authority and power of a municipali ty that it may not issue such a permit in the absence of special enabling state legislation
Assuming that such power exists the granting of permission to a private person to so use the streets is totally within the discretion of the municipality
 The learned counsel contended that the grant of exclusive right to occupy any part of the road amounts to the negation of the Common Law theory of dedication of a road for public use
Reference was also made on behalf of the petitioners to the judgment in MA Pal Mohd vs RK Sadarangani AIR 1985 Madras 23 wherein it was observed that hawker trade so long as it is properly regulated by public authori ties could never be a public nuisance rather it serves the convenience of the public
and is found not only in India but also in other countries
The question of applicability of the English and American laws on the present aspect was considered by a Division Bench of the Madras High Court in CSS Motor Service vs Madras State AIR 1953 Madras 279 and the decision was later approved by this Court in Saghir Ahmad vs The State of UP and others  After a thorough consideration of the relevant materials Venkatarama Aiyar J who delivered the judgment pointed out some of the basic differences in the law of this country on the present subject from the American and English laws which render the American decisions inapplicable on certain aspects
The right to carry on business 1048 although recognised as one of the liberties protected by the American Constitution did not acquire the full status of the freedoms expressly mentioned in the Constitution such as the freedom of speech of person and of religion and was viewed somewhat in the light of an interloper or parvenu among them
The freedoms expressly mentioned in the American Constitution occupy an exalted position which was denied to the unexpressed freedoms including the right to carry on business
Under the Indian Constitution this right is one of the freedoms expressly protected under Article 191g and is placed on the same footing as freedom of speech etc
Further only some trades could be carried on by the American citizens as a matter of right and the others including the transport business on public roads only if the State permit ted
The learned Judge observed that this is called a fra nchise  or a privilege  and has an English origin
That is not the case in this country inasmuch as Article 191g does not make any distinction from trade to trade
So far England is concerned the rights of citizens to public pathways originated in feudal times when the lands were owned by individuals
The public highways generally pass through these lands and since the citizens were using these roads the law inferred a dedication of the pathways by the owners for user by the public but the extent of this user was limited to the passing and re passing on the road
The position in India has always remained somewhat different and has been summarized in paragraph 24 of the judgment of Venkatarama Aiyar J in the following terms which has been quoted with approval by this Court in Saghir Ahmad s case
The true position then is that all public streets and roads vest in the State but that the State holds them as trustee on behalf of the public
The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways
The State as trustees on behalf of the public is entitled to impose all such limitations on the charac ter and extent of the user as may be requisite for protecting the rights of the public gener ally
Thus the nature of the road may be such that it may not be suitable for heavy traffic and it will be within the competence of the legislature to limit the use of the streets to vehicles which do not exceed specified size or weight
Such regulations have been held to be valid as within the police power of the State in America
Vide Morris vs Budy   Sproles vs Bindford    and South Carolina State vs Barnwell 1049 Bros 1938  For the same reason the State might even prohibit the running of transport buses and lorries on particular streets or roads if such running would interfere with the rights of pedestrians to pass and re pass as it might if the street is narrow or conjested but subject to such limitations the right of a citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the State owns the highways
Mr Singhvi is correct in pointing out that the passages of the American and English laws as relied upon on behalf of the petitioners do not establish their right to carry on trading business on public streets but for that reason their claim cannot be rejected either
The question requires to be examined further
The observations in the judgment of Venkatarama Aiyer J quoted above prima facie support the petitioners
They received express approval of this Court in Saghir Ahmad s case but there is an important distinction between those cases and the present matter which cannot be ignored
In both the above cases the petitioners were claiming the right to ply transport vehicles for hire on public streets in other words they wanted to use the roads for transport for which the roads were primarily laid out and while so doing attempted to earn money
In the present cases before us the petitioners are desirous of conducting their trade business by sale of goods on the roads from stationary points they do not want to make use of the roads for movement of persons or goods
The question is whether this makes a material difference
The primary object of building roads is undoubtedly to facilitate people to travel from one point to another
Quoting several authorities Byron K Elliott and William F Elliott in their treatise on the Law of Roads and Streets have defined a street as a road or public way in a city town or village
A way over land set apart for public travel in a town or city is a street no matter by what name it may be called
If a way is free to all people it is a highway
P Duraiswami Aiyangar in his book dealing with the Law of Municipal Corporation in British India 1914 Edn has observed that the primary and paramount use of the street is public travel for man beast and carriage for goods
On behalf of the respondents reliance has been placed on the oft repeated adage that public have a right of passing and repassing through a street but have no right to be on it which Sri Aiyangar also has mentioned at page 542 of his book
Halsbury relied upon by both sides has stated Vol
21 paragraph 107 that the right of 1050 the public is a right to pass alone a highway for the pur pose of legitimate travel not to be on it except so far as the public s presence is attributable to a reasonable and proper user of the highway as such
These statements cer tainly do not mean that a traveler has to be in perpetual motion when he is in a public street
It may be essential for him to stop sometime for various reasons he may have to alight from a vehicle or pick up a friend collect certain articles or unload goods or has to take some rest after a long and strenuous journey What is required of him is that he should not create an unreasonable obstruction which may inconvenience other persons having similar right to pass he should not make excessive use of the road to the prejudice of the others
Liberty of an individual comes to an end where the liberty of another commences
Subject to this a member of the public is entitled to legitimate user of the road other than actually passing or re passing through it
It has been sometimes argued that since a person is entitled to the user of every part of a public street he cannot be deprived of the use of any portion thereof by putting up of any obstruction
This proposition in its extreme form cannot be accepted without subjecting it to several restrictions
A similar argument was pressed before the Madras High Court in the case of MA Pal Mohd vs RK Sadarangani supra based on the provisions of the Madras City Municipal Corporation Act 1919 and was rightly re pelled by pointing out that since the pavement is also included within the expression street  a member of the public relying upon the aforesaid proposition can insist on his right to walk over a flower bed or structure erected by the public authorities for regulating traffic which will be wholly unpractical
The authorities are duty bound to locate post boxes fire hydrants with water tanks milk booths bus or jutka stands rubbish bine etc in appropriate places in a public street and it would be preposterous to hold that this cannot be done as somebody may insist on keeping every inch of the street available for actual passage
Winfield and Jolowicz in their book on Tort 12th Edn have said that nuisance may be defined with reference to highways as any wrongful act or omission upon or near a highway whereby the public are prevented from freely safely and conven iently passing along the highway and that the law requires of users of the highway a certain amount of give and take
The case of Harper vs GN Maden and Sons Limited illustrates this point
The defendants there who had their house abutting the road decided to add another floor to their existing premises
Before starting construction they erected scaffolding resting On the footpath and put up a wooden hoarding 1051 next door to the plaintiff s shop for the purpose of enclos ing a space to be used during the alterations to their building for depositing bricks and other materials
In an action by the plaintiff for injunction and damages the trial Judge held that although the scaffolding and hoarding were reasonably necessary for the construction and they did not cause any greater obstruction or remain for any longer period than was reasonably necessary the obstruction was illegal and that the plaintiff was entitled to damages
On appeal the judgment Was reversed holding that the obstruc tion to the highway and to the enjoyment by the plaintiff of his adjoining premises being of temporary character and being reasonable in quantum and in duration did not give rise to a legal remedy
It was very well said that The law relating to the user of highways is in truth the law of give and take
Those who use them must in doing so have reasonable regard to the convenience and comfort of others and must not themselves expect a degree of convenience and comfort only obtain able by disregarding that of other people
They must expect to be obstructed occasional ly
It is the price they pay for the privilege of obstructing others As to what will constitute public nuisance and what can be included in the legitimate user can be ascertained only by taking into account all the relevant circumstances in cluding the size of the road the amount of traffic and the nature of the additional use one wants to make of the public streets
This has to be judged objectively and here comes the role of public authorities
So far as right of a hawker to transact business while going from place to place is concerned it has been admittedly recognised for a long period
Of course that also is subject to proper regulation in the interest of general convenience of the public including health and security considerations
What about the right to squat on the road side for engaging in trading business As was stated by this Court in Bombay Hawkers Union and others vs Bombay Municipal Corporation and others  the public streets by their nomenclature and definition are meant for the use of the general public they are not laid to facilitate the carrying on of private business
If hawk ers were to be conceded the right claimed by them they could hold the society to ransom by squatting on the busy thoroughfares thereby paralysing all civic life
This is one side of the picture
On the other hand if properly regulated according to the exigency of the circumstances the small 1052 traders on the said walks can considerably add to the com fort and convenience of general public by making available ordinary articles of every day use for a comparatively lesser price
An ordinary person not very affluent while hurrying towards his home after day s work can pick up these articles without going out of his way to find a regular market
If the circumstances are appropriate and a small trader can do some business for personal gain on the pave ment to the advantage of the general public and without any discomfort or annoyance to the others we do not see any objection to his carrying on the business
Appreciating this analogy the municipalities of different cities and towns in the country have been allowing such traders
The right to carry on trade or business mentioned in Article 191g of the Constitution on street pavements if properly regulated cannot be denied on the ground that the streets are meant exclusively for passing or re passing and for no other use
Proper regulation is however a necessary condition as otherwise the very object of laying out roads to facilitate traffic may be defeated
Allowing the right to trade with out appropriate control is likely to lead to unhealthy competition and quarrel between traders and travelling public and sometimes amongst the traders themselves result ing in chaos
The right is subject to reasonable restric tions under clause 6 of Article 19
If the matter is examined in this light it will appear that the principle stated in Saghir Ahmad s case in connection with transport business applies to the hawkers  case also
The proposition that all public streets and roads in India vest in the State but that the State holds them as trustee on behalf of the public and the members of the public are entitled as bene ficiaries to use them as a matter of right and that this right is limited only by the similar fights possessed by every other citizen to use the pathways and further that the State as trustee is entitled to impose all necessary limitations on the character and extent of the user should be treated as of universal application
The provisions of the Municipal Acts should be construed in the light of the above proposition
In case of ambiguity they should receive a beneficial interpretation which may enable the municipalities to liberally exercise their authority both in granting permission to individuals for making other uses of the pavements and for removal of any encroachment which may in their opinion be constitut ing undesirable obstruction to the travelling public
The provisions of the Delhi Municipal Corporation Act 1957 are clear and nobody disputes before us that the Municipal Corporation of Delhi has full authority to permit hawkers and squatters on the side walks where they consider it practical and convenient
In so far the Punjab Municipal Act 1911 1053 applying to the New Delhi area is concerned the Bench constituted by three learned Judges observed in Pyare Lal s case  that the provisions did not authorise the municipality to permit stalls to be set up in the streets except temporarily on special occasions like festi vals etc
and that the permission to the petitioner in that case had been wrongly granted initially
We do not agree with these observations although it appears that in the light of the other circumstances indicated in the judgment the decision was a correct one
The provisions of both sections 173 and 188 should receive liberal construction so that the New Delhi Municipal Committee may be in a position to exer cise full authority
Indeed some of the documents on the records before us indicate that the Committee had been in the past actually permitting hawkers and squatters on pave ments in certain areas
The controversy in the present cases however cannot be settled by what has been said earlier
The claim of the petitioners before us is much higher
They assert the right to occupy specific places on road pavements alleging that they have been so doing in the past
As has been stated earlier the facts have been disputed and individual cases will be considered separately in the light of the present judgment
The argument however which has been pressed on behalf of the petitioners is that they have their fundamen tal rights guaranteed by Articles 19 and 21 of the Constitu tion to occupy specific places demarcated on the pavements on a permanent basis for running their business
We do not think there is any question of application of Article 21 and we will be briefly indicating our reasons therefore later
But can there be at all a fundamental right of a citizen to occupy a particular place on the pavement where he can squat and engage in trading business We have no hesitation in answering the issue against the petitioners
The petitioners do have the fundamental right to carry on a trade or busi ness of their choice but not to do so on a particular place
The position can be appreciated better in the light of two decisions of this Court in Fertilizer Corporation Kamgar Union vs Union of India   and K Rajendran vs State of Tamil Nadu  19
In the Fertilizer Corporation case the workmen of the respondent Corporation challenged the legality of the sale of certain plants and equipments of the Sindri Ferti lizer Factory inter alia on the ground that a large number of workers would be retrenched as a result of the sale
They argued that the sale would deprive them of their fundamental right under Article 191g to carry on their occupation as industrial workers
A Bench of five Judges of this Court rejected the 1054 plea holding that Article 191g confers a broad and general right which is available to all persons to do work of a particular kind and of their choice but it does not confer the right to hold a particular job or to occupy a particular post of one s choice
The right to pursue a calling or to carry on an occupation is not the same thing as the right to work in a particular post
If the workers were retrenched consequent upon and on account of the sale it would be open to them to pursue their rights and remedies under the labour laws
But the closure of an establishment in which a workman for the time being was employed did not by itself infringe his fundamental right to carry on an occupation which is guaranteed by Article 191g
The choice and freedom of the workers to work as industrial workers is not affected by the sale
The sale may at the highest affect their locum but it does not affect their locus to work as industrial worker This decision was followed in K Rajendran vs State of Tamil Nadu which arose out of a policy decision taken by the State of Tamil Nadu to abolish all the posts of part time Village Officers
An Ordinance was promulgated for this purpose and was later replaced by an Act
Rejecting the appeal of the appellants this Court held that the impugned Act did not violate Arti cle 191g as it did not affect the right of the incum bents of posts to carry on any occupation of their choice even though they may not be able to stick on to the post which they were holding
The ratio of these decisions apply with full force to the cases where the right to pursue a trade or business is involved
If the opposite view is taken and the plea of the petitioners is allowed a chaotic situa tion may follow
They may be entitled to insist that they would carry on their business anywhere they like either on the roads or in the government schools or hospitals or other public buildings
They may like to enter the class rooms or the patient wards or any public office to advance their prospects
As was observed in the Bombay Hawkers case   they can hold the society to ransom by squatting on the busy thoroughfare thereby paralysing all civic life
We do not find any merit in the argument rounded on Article 21 of the Constitution
In our opinion Article 21 is not attracted in a case of trade or business either big or small
The right to carry on any trade or business and the concept of life and personal liberty within Article 21 are too remote to be connected together
The case of Olga Tellis and others vs Bombay Municipal Corporation and others   heavily relied upon on behalf of the petitioners is clearly distinguishable
The petitioners in that case were very poor persons who had made pavements their homes existing in the midst of filth and squalor which had to be seen to be believed
Rabid dogs in search of 1055 stinking meat and cats in search of hungry rats kept them company
They cooked and slept where they cased for no conveniences were available to them
Their daughters coming of age bathed under the nosy gaze of passers by unmindful of the feminine sense of bashfulness
They had to stay on the pavements so that they could get odd jobs in the city
It was not a case of a business of selling articles after investing some capital howsoever meagre
It is significant to note that the judgment in Bombay Hawkers Union and others vs Bombay Municipal Corporation and Others  and that in Olga Telils were delivered within a week both by YV Chandrachud CJ and some of the counsel appearing m two cases were common and that while dealing with the rights of the squatting hawkers in the former case the learned Chief Justice confined the consideration of the right under Article 191g of the Constitution
Besides the Court in the Olga Tellis affirmed the validity of section 314 of the Bombay Municipal Corporation Act on the ground that Removal of encroachments on the footpaths or pavements over which the public has the right of passage or access cannot be regarded as unreasonable unfair or unjust
 In this connection the Court further proceeded to say Footpaths or pavements are public properties which are intended to serve the convenience of the general public
They are not laid for private use and indeed their use for a pri vate purpose frustrates the very object for which they are carved out from portions of public streets
The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with a reasonable measure of safety and security
That facility which has matured into a right of the pedestrians cannot be set at naught by allowing encroachments to be made on the pavements
There is no substance in the argu ment advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing repassing are competing claims and that the former should be preferred to the latter
No one has the right to make use of a public property for a private purpose without the requisite authorisation and therefore it is erroneous to contend that the pavement dwellers have the 1056 right to encroach upon pavements by construct ing dwellings thereon
Public streets of which pavements form a part are primarily dedicated for the purpose of passage and even the pedestrians have but the limited right of using pavements for the purpose of passing and repassing
So long as a person does not trans gress the limited purpose for which the pave ments are made his use thereof is legitimate and lawful
But if a person puts any public property to a use for which it is not intended and is not authorised to use it he becomes a trespasser
The common example which is cited in some of the English cases see for exam ple Hicknan vs Maisey  is that if a person while using a highway for passage sits down for a time to rest himself by the side of the road he does not commit a trespass
But if a person puts up a dwelling on the pavement whatever may be the economic compulsions behind such an act his user of the pavement would become unauthorised
 It is also worth noting that assurances had been given on behalf of the State Government in its pleading before this Court which was repeatedly mentioned in the judgment
On behalf of some of the petitioners it was contend ed that in view of the inclusion of the word socialist in the Preamble of the Constitution by the 42nd Amendment greater concern must be shown to improve the condition of the poor population in the country and every effort should be made to allow them as much benefit as may be possible
There cannot be any quarrel with this proposition but that by itself cannot remedy all the problems arising from pover ty
Even the Constitution as it stood originally was commit ted to economic justice and welfare of the needy
But for that reason either then or now the other provisions of the Constitution and the laws cannot be ignored
It is there fore not possible to interpret the decision in Olga Tellis in the manner to interpret the decision in Olga Tellis in the manner suggested on behalf of the petitioners to bolster their case with the aid of Article 21
During his argument Mr Tarkunde fairly stated that the Municipal Committee may be entitled to regulate the squatting business of the petitioners but they must make detailed schemes in this regard
A serious concern was shown in the argument of the other learned advocates also alleging that corruption at large scale was 1057 rampant and huge amounts of money were being realised ille gally by some of the servants of the Municipalities from the poor hawkers
No rules have been framed with respect to the choice of the persons the area to be allowed to them or the rate of Tehbazari charges
The permission to squat was being granted on daily basis or for very short periods to the great inconvenience to the hawkers and no machinery was available to hear their grievances
A draft scheme has been prepared and filed on behalf of the petitioners with a suggestion that the respondents may be directed to adopt it
On behalf of the respondents it was said that statutory provisions are already there in this regard but they had to concede that they are too sketchy and incapable of meeting the need
We are in the circumstances of the view that detailed necessary provisions dealing with all relevant aspects and capable of solving the problems arising in the situation in a fair and equitable manner should be made and the respondents should proceed as soon as may be possi ble
They will be well advised to consider the suggestions of the petitioners while finalising the schemes
Due regard to the requirements of the relevant laws eg and the Delhi Control of Vehicular and other Traffic on Roads and Streets Regulation 1980 will have to be given
We would however make it clear that the demand of the petitioners that the hawkers must be permitted on every road in the city cannot be allowed
If a road is not wide enough to conveniently manage the traffic on it no hawking may be permitted at all or may be sanctioned only once a week say on Sundays when the rush considerably thins out
Hawking may also be justifiably prohibited near hospitals or where necessity of security measures so demands
There may still be other circumstances justifying refusal to permit any kind of business on a particular road
The demand on behalf of the petitioners that permission to squat on a particular place must be on a permanent basis also has to be rejected as circumstances are likely to change from time to time
But this does not mean that the licence has to be granted on the daily basis that arrangement cannot be convenient to anybody except in special circumstances
The authorities while adopting a scheme should also consider the question as to which portions of the pavements should be left free for pedestrians and the number of the squatters to be allowed on a particular road
There should be rational basis for the choice of the licensees
A policy decision should be taken in regard to the articles which should be permitted to be sold on the pavements
It is common knowledge as was taken note of in Bombay Hawkers case that some 1058 of the hawkers in big cities are selling very costly luxury articles including sophisticated electronic goods sometimes imported or smuggled
The authorities will be fully justi fied to deny to such hawkers any facility
They may frame rules in such a manner that it may benefit only the poor hawkers incapable of investing a substantial amount for starting the business
Attempt should be made to make the scheme comprehensive dealing with every relevant aspect for example the charges to be levied the procedure for grant and revocation of the licences et cetera
We as a Court in a welfare State do realise the hardship to which many of the petitioners may be exposed if they are prevented from carrying on the business
The only solution for this is the adoption of the policy of full employment which even according to leading economists like Keynes will alleviate the problems of the unemployed to some extent
But as students of economics we also realise that every human activity has the optimum point  beyond which it becomes wholly unproductive
It is for the Government to take reasonable steps to prevent movement of people from rural areas to urban areas
That can be done by the develop ment of urban centers in rural areas removed from each other at least by one hundred miles
This is more a matter of executive policy than for judicial fiat
We hope and trust that in administering the laws in force the authorities will keep in view humane considerations
With these observations we dispose of these petitions and remit them to the appro priate Division Bench for final disposal in accordance with this judgment
KULDIP SINGH J
I have read the erudite judgment of LM Sharma J wherein it has been held that street trad ing whether as an itinerant vendorhawker or from a sta tionary positionreceptacle kioskfoot path is a fundamen tal right guaranteed under Article 191g of the Constitu tion of India
The said right is obviously subject to rea sonable restrictions imposed by the State under Article 196 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
The guarantee under Article 191g 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 qualifica tions training or skill
The word 1059 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 opera tions purchase and sale of goods and would include any thing which is an occupation as distinguished from pleasure
The object of using four analogous and overlapping words in Article 19lg is to make the guaranteed right as compre hensive as possible to include all the avenues and modes through which a man may earn his livelihood
In a nut shell the guarantee takes into 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
Street trading is an age old vocation adopted by human beings to earn living
In the olden days the venue of trad ing and business has always been the public 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 the street trading  is accepted as one of the legitimate modes of earning livelihood even in the most affluent coun tries 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 dis trict as a prohibited street  in which street trading is prohibited a licence street  in which steet trading is prohibited without a licence granted by the district council or a consent street  in which street trading is prohibited without its consent 1060 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 per sistently refused or 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 reasona ble
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 affect
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 1061 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 opportuni ty 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 representa tions which he required the council to allow him to make
A person aggrieved by certain refus als or decisions of a council may appeal to a magistrates  court and appeal from the magis trates  decision lies to the Crown Court
The council must give effect to the court s deci sion
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 assist ance without any further licence being re quired
 Paras 431 to 448 relate to street trading  in Greater London and in the city of London
London Country Council General Powers Act 1947 and City of London Various Powers Act 1965 provide for designation of streets 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 1062 stalls at every street junction from where fruits confec tionary 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 distinct 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 constitu tional 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
Mr Tarkunde contended that street trading being a common law right has to be treated as a fundamental right under Article 19lg 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 191g 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 streets can be used as of right
In Manzur Hasan vs Muhammed Zaman 52 IA 61 the Privy Council held as under In India there is a right to conduct a religious processionwith 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
 In Saghir Ahmed vs The State of U P and others 1955 1 SCR 1063 707 this Court held that a business of transporting passen gers with the aid of vehicles was a trade or business and as such was guaranteed under Article 191g of the Constitu tion of India
In Himat Lal K Shah vs Commissioner of Police Ahmedabad and another   this Court held that right to hold a public meeting on a public street is a fundamental right under Article 191a and b of the Constitution of India and the same cannot be arbi trarily 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
In India there are large number of people who are en gaged 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 licencesTehbazari from Municipal Corpora tion of DelhiNew Delhi Municipal Committee but most of them are squatters
There is practically no law regulating street trading in DelhiNew Delhi
The skeletal provisions in the Delhi Municipal Corporation Act 1957 and the Punjab Munici pal Act 1911 can hardly provide any regulatory measures to the enormous and complicated problem of street trading in these areas
In Bombay Hawkers  Union and others vs Bombay Municipal Corporation and others 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 vs Gumam Kaur  this Court observed as under  
We feel that the Municipal Corpora tion authorities in consultation with the Delhi Development Authority should endeavour to find a solution on the lines as suggested in Bombay Hawkers  Union ie 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 ob structions to the free flow of traffic and rehabilitate those unfortunate persons who by force or circumstances 1064 are made to ply their trade or business on pavements or public streets
 Street Trading being a fundamental right has to be made available to the citizens subject to Article 196 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 196 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
RSS Petitions dis posed of


Summary:
The petitioner who claims himself to be a human right activist filed this writ petition in public interest on the basis of a newspaper report concerning the death of a scoot erist who was knocked down by a speeding car
The report further states that the injured person was taken to the nearest hospital but the doctors there refused to attend on him that they told that he be taken to another hospital located some 20 kilometers away which was authorised to handle medico legal cases and that the victim succumbed to his injuries before he could be taken to the other hospital
The petitioner has prayed the directions be issued to the Union of India that every injured citizen brought for treat ment should instantaneously be given medical aid to preserve life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death and in the event of breach of such direction apart from any action that may be taken for negligence appropriate compensation should be admissible
The Secretary Ministry of Health  Family Welfare of the Union of India the Medical Council of India and the Indian Medical Association were later impleaded as respond ents
Documents relating to the steps taken from time to time in this 998 regard were produced
by the respondents
Reference was made to the Code of Medical Ethics drawn up by the Medical Coun cil of India wherein the need to attend to the injuredserious persons immediately without waiting for the police report or completion of police formalities was recog nised and the Government of India was requested to take necessary and immediate steps to amend various provisions of law which come in the way of government doctors as well as other doctors in private hospitals or public hospitals in this regard
The proceedings of the meeting held on 2951986 in which the Director General of Health Services acted as Chairman were also referred to
This Committee had formulated some guidelines
On behalf of the Union of India it was stated that there was no provision in the Indian Penal Code Criminal Procedure Code or the Motor Vehicles Act etc
which prevented doctors from promptly attending seriously injured persons and accident cases before the arrival of police
Disposing of the Writ Petition this Court HELD 1 Article 21 of the Constitution casts the obligation on the State to preserve life
1005G 2 There can be no second opinion that preservation of human life is of paramount importance
That is so on account of the fact that once life is lost the status quo ante cannot be restored as resurrection is beyond the capacity of man
1005F 3 The patient whether he be an innocent person or a criminal liable to punishment under the laws of the society it is the obligation of those who are incharge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished
Social laws do not contemplate death by negligence to tantamount to legal punishment
1005F 4 Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life
1006A 5 No law or State action can intervene to avoiddelay the discharge of the paramount obligation cast upon members of the medical profession
The obligation being total absolute and paramount laws of procedure whether in statute or otherwise which would interfere with the discharge of this obligation cannot be sustained and must therefore give way
1006B 999 6 The Court gave directions for giving adequate pub licity to the decision in this case by the national media the Doordarshan and the all India Radio as well as through the High Courts and the Sessions Judges
1006E F Per GL Oza J concurring 1 The Code of Medical Ethics framed by the Medical Council was approved on 23rd October 1970
This only re veals an unfortunate state of affairs where the decisions are taken at the highest level good intentioned and for public good but unfortunately do not reach the common man and it only remains a text good to read and attractive to quote
1007D E 2 It is clear that there is no legal impediment for a medical professional when he is called upon or requested to attend to an injured person needing his medical assistance immediately
There is also no doubt that the effort to save the person should be the top priority not only of the medi cal professional but even of the police or any other citizen who happens to be connected with the matter or who happens to notice such an incident or a situation
1008F 3 The members of the legal profession our law courts and everyone concerned will also keep in mind that a man in the medical profession should not be unnecessarily harassed for purposes of interrogation or for any other formality and should not be dragged during investigations at the police station and it should be avoided as far as possible
1009C 4 Law courts will not summon a medical professional to give evidence unless the evidence is necessary and even if he is summoned attempt should be made to see that the men in this profession are not made to wait and waste time unnecessarily
1009D