LPA NO.766/2008 Page No.1 REPORTABLE * IN THE HIGH COURT OF DELHI AT NEW DELHI + LETTERS PATENT APPEAL NO.766 OF 2008 % Date of Decision : April 17th , 2009. MANUSHI SANGATHAN, DELHI ....Appellant. Through Ms.Geeta Luthra, Ms.Indira Unninayal, Ms.Rukhsana Chaudhary, advocates. VERSUS DELHI DEVELOPMENT AUTHORITY & ORS. .... Respondents. Through Ms. Sangeeta Chandra, advocate for respondent no.1/DDA. Ms.Zubeda Begum, Ms.Sana, advocates for respondents-3&4. Mr.Ajay Arora & Mr.Kapil Dutta, advocates for respondent-MCD. Mr.Pankaj Batra, advocate for respondent no.5. CORAM: HON’BLE MR. JUSTICE AJIT PRAKASH SHAH, CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? YES 3. Whether the judgment should be reported in the Digest ? YES SANJIV KHANNA, J: 1. This intra Court Appeal is directed against judgment dated 4th September, 2008 dismissing Writ Petition (Civil) No. 9407/2007 filed by Manushi Sangathan, Delhi (hereinafter referred to as appellant-NGO, for short). LPA NO.766/2008 Page No.2 2. Nehru Place is a well known commercial district centre in South Delhi which was developed in early 1970. Hawkers were naturally attracted and have been hawking in Nehru Place since 1980s. 3. The appellant-NGO, by their letter dated 28th July, 2003 submitted a proposal for regulated, controlled and systematic hawking at Nehru Place supported by documents like survey report of Nehru Place vendors, a plan for model market for hawkers and a report by a professor in School of Planning and Architecture relating to Nehru Place. This study was commissioned by the Ministry of Urban Affairs. It was noticed that the total number of hawkers in Nehru Place was about 300 and alternative sites had been provided to 102 street vendors/hawkers but not others. 68 existing hawkers operating from Nehru place were to be covered by this proposal of regulated hawking. 4. Delhi Development Authority (DDA for short) responded to the said letter stating that the proposal given by the appellant NGO would have to be integrated with the redevelopment proposal finalized for Nehru Place by the architect consultant. Thereafter, some correspondence was exchanged and the issue of regulated hawking in Nehru Place was also taken up with the MCD. Approval was sought from Chief Vigilance Commissioner. LPA NO.766/2008 Page No.3 The appellant- NGO, by their letter dated 13th May, 2005 submitted a list of street vendors/hawkers after carrying out a survey. It was stated that the list was verified in several meetings. It was also stated that the appellant-NGO shall undertake responsibility and ensure that the street vending was regulated and monitored as per code of conduct. Placement patterns/locations were earmarked. The said list gives names of 68 vendors along with goods being dealt with by them. 5. Finally, DDA by their letter dated 23rd January, 2006 informed the appellant-NGO that a joint inspection of Nehru Place was held on 17th January, 2006 regarding feasibility of construction/installation of stalls by vendors. The letter states that it was decided during inspection that DDA would provide list of markets where space was reserved for informal sector. The appellant NGO was given go ahead for further discussions with the Architecture Department regarding finalization of the proposal for hawking at Nehru Place. 6. On 3rd October, 2006 a meeting was held in the office of Vice Chairman, DDA and various issues were discussed. DDA in light of the said discussions decided to change their development policy and in future incorporate informal trade in building/shopping complexes. It was noticed in the meetings that there was some confusion about the list of hawkers/street LPA NO.766/2008 Page No.4 vendors submitted by the appellant/NGO but that was sorted out. The Vice Chairman asked the appellant-NGO to forward list of 68 persons along with their identity cards. The Vice Chairman directed that confiscation of products of street vendors should be stopped. It appears that these cards were later on submitted. Thus a deliberate, considered and reflected decision to allow and permit regulated hawking under the appellant NGO was sanctioned. 7. The said agreed arrangement/pilot project continued for a period of more than one year. In December, 2007, the appellant NGO filed WP(C) no. 9407/2007, suspecting that on basis of an earlier decision dated 18th April, 2002 declaring Nehru Place as a non-tolerance zone, the hawkers under the pilot project may be removed. The appellant NGO relied upon the decision dated 3rd July, 2006 in W P (C) No. 10479/2006 titled Citizens for Justice Vs. Lt. Governor (NCT) Delhi & Ors. wherein a similar contention raised against the pilot project was rejected by a Division Bench of this court observing: ―2. The contention of the counsel for the petitioner is that the respondents themselves have declared the District Centre, Nehru Place, as zero tolerance zone and, therefore, they cannot allow the hawkers to encroach the said area under the garb of sites created for them vide impugned letter of their Senior LPA NO.766/2008 Page No.5 Architect referred to above. We find no force in this contention. The location for hawkers have been created by the respondents not on any area belonging to the shop owners at District Centre, Nehru Place, but on public land with which they have no direct connection. Furthermore, there is no conflict between a no tolerance zone and a regulated and designated area for hawkers. 3. The petitioner cannot be heard to say that its fundamental right has been impinged by any means by creation of sites for the hawkers. In our opinion, this is a step which cannot be assailed as this seeks to regulate and legitimize hawkers in a public space. Hawkers also serve a public need of less affluent section of our population and cannot be wished away. Rather than banishing them it is necessary to ensure that the business of hawking is regulated and legitimized to ensure optimum utilization of public spaces. All over the world public spaces are utilized by permitting hawking in a regulated and disciplined manner. Such regulation of hawking is eminently in public interest as it will also generate revenue for the State. The consideration for use of public space by hawkers would ensure that the amount which lines the private pockets for permitting hawking, finds its way into the State revenue. Furthermore subject to not causing nuisance, obstruction and encroachment, even a small hawker who can not afford the astronomically prized commercial space in Delhi is entitled to carry out his business with dignity and without harassment.‖ LPA NO.766/2008 Page No.6 8. While the writ petition was pending before the learned Single Judge, on 19th April, 2008, DDA without any notice and prior warning suddenly swooped down on the hawkers vending their products under the pilot project and forcibly removed them and confiscated the goods/articles. 9. By the impugned judgment learned single judge has dismissed the WP(c) no. 9407/2007 primarily relying upon decision dated 18th April, 2002 of respondent authorities to re-develop and rejuvenate Nehru Place, which was declared as a ―zero tolerance zone‖. 10. The issue and contention raised in the present Appeal relates to right of hawkers, hawking and their regulation by the local authorities. Poor infrastructure, lack of job opportunities in rural areas, has resulted in rapid urbanization and migration to cities like Delhi. Informal trading as an itinerant hawker or from a kiosk or footpath has been a source of earning and livelihood for the lower classes and marginalized section of urban population in Delhi, Mumbai and other cities. What are the legal rights, if any, of the hawkers/street vendors and when and what extent these rights can be regulated, restricted or barred has been subject matter of decisions of the Supreme Court. 11. Right to hawk and hawking problem was first examined by the Supreme Court in the case of Bombay Hawkers’ LPA NO.766/2008 Page No.7 Union versus Bombay Municipal Corporation reported in (1985) 3 SCC 528 with reference to requirement by hawkers to obtain licences under the Bombay Municipal Corporation Act, 1888. It was held that right to hawk is protected and guaranteed under Article 19(1)(g) of the Constitution but is subject to Clause 6 and the State can impose reasonable restrictions in the interest of general public. No one, therefore, by hawking can cause nuisance, annoyance and inconvenience to other members of the public and the authorities could regulate and control hawking. In this case, the Supreme Court laid down modalities for declaring hawking and non-hawking zones in order to protect hawkers and regulate hawking. It was directed that in future before making any alteration in the scheme, the commissioner shall take into consideration all public interest including hawkers, Commissioner of police and representative associations of the public. It was recognized that hawking if properly regulated considerably adds to the convenience and comfort of the general public by making available ordinary articles of daily use at comparatively less price. It is a source of self employment. 12. Hawking in Delhi was subject matter before the Supreme Court in Sodan Singh and others versus New Delhi Municipal Committee reported in (1989) 4 SCC 155. In this LPA NO.766/2008 Page No.8 case also, the Supreme Court held that hawking on roadsides is an occupation, trade or business as enshrined in Article 19(1)(g) but was subject to reasonable restrictions under Clause 6 thereof. The argument that hawking is covered under Article 21 of the Constitution was rejected as the said Article is not attracted in a case of business or trade – big or small. On the question of right of hawkers to use public streets and areas it was held that they vest in the State but the State holds them as a trustee on behalf of the people. Members of the public are entitled as beneficiaries to use them as a matter of right but this right is limited as similar right is possessed by every other citizen. No person should create unreasonable obstruction which causes inconvenience to others. Though the primary object of building roads is undoubtedly to facilitate people to travel and move from one point to another, obstructions in form of hawking etc. are permissible so long as they do not cause nuisance to others. The law of user of highways is in truth law of give and take. Right to hawk and transact business from roads etc. is recognized for a long past but the same can be regulated. Local authorities could permit hawkers and squatters to vend and sell products on the sidewalks wherever considered practicable and permissible but there is no vested right to occupy a particular place or permanently occupy a LPA NO.766/2008 Page No.9 particular place. Thus, right of a hawker to do business for personal gains without discomfort or annoyance to others was accepted. The Supreme Court considered the provisions of Delhi Police Act, 1978, Delhi Control of Vehicular and other Traffic on Roads and Streets Regulation, 1980 and directed New Delhi Municipal Committee to frame a scheme with regard to areas and places where hawking/squatting could be permitted and decide the total number of hawkers to be allowed. Pursuant to the directions of the Supreme Court, a scheme was prepared by New Delhi Municipal Committee and a Zonal Officer was nominated and a Committee was formed to look into individual complaints. It was observed:- “17. 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 roadside for engaging in trading business? As was stated by this Court in Bombay Hawkers‘ Union v. Bombay Municipal Corporation 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 hawkers 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 traders on the sidewalks can considerably add to the comfort and convenience of general public, by LPA NO.766/2008 Page No.10 making available ordinary articles of everyday 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 pavement 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 19(l)(g) 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 without appropriate control is likely to lead to unhealthy competition and quarrel between traders and travelling public and sometimes amongst the traders themselves resulting in chaos. The right is subject to reasonable restrictions under clause (6) of Article 19. 18. 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 constituting 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 sidewalks where they consider it practical and convenient.‖ 13. Thereafter, Orders dated 13th March, 1992 and 4th February, 1998 reported in (1992) 2 SCC 458 and (1998) 2 SCC LPA NO.766/2008 Page No.11 727/743, respectively in Saudan Singh Versus N.D.M.C. were passed. 14. Hawking problem in the city of Mumbai was again examined by the Supreme Court in Maharashtra Ekta Hawkers’ Union and anothers versus Municipal Corporation, Greater Bombay and others and Orders dated 9th December, 2003 and 12th February, 2007 reported in (2004) 1 SCC 625 and 2007 (3) SCALE 24 respectively were passed. These orders reiterate the right of the hawkers to sell and carry on trade under Article 19(1)(g) of the Constitution of India and the said right is subject to reasonable restrictions. Therefore hawking could be regulated and reasonably restricted for justifiable and valid grounds like narrowness of the road, free flow of traffic, hindrance in movement of pedestrians or where for security reasons areas have to be kept free and hawking should not be permitted. The restrictions, should not be unreasonable and it was emphasized that guidelines should be fixed for ascertaining and earmarking areas where hawking cannot be permitted. In the order dated 9th Dec. 2003 the Supreme Court noticed that this required micro level examination, which the Court was ill equipped to undertake. It was directed as under:- ―12. We have, during the course of arguments, tried to go through the scheme street by street. LPA NO.766/2008 Page No.12 However, on a re-consideration it appears to us that this Court is not really equipped to undergo this exercise. In our view, it would be preferable that this Court approves the conditions of the scheme and certain roads/streets on which hawking is to be permitted. Then, as in Sodan Singh‘s case, a committee must be appointed and modalities laid down under which the committee is to function. The committee can hear interested parties and consider their representations. The committee can decide whether any particular road/street is to be declared as a non-hawking zone. We therefore confine ourselves to laying down the basic features of the scheme, appointing a committee and laying down the modalities for functioning of the committee.‖ 15. While issuing above directions, the Supreme Court observed that the Committee appointed to demarcate non- hawking zones/sites shall not refuse or create non-hawking zones except for good reasons like public health, sanitation, safety, public convenience and the like. The said discretion to demarcate non-hawking/hawking should be exercised reasonably and in public interest. The Supreme Court did not approve of the principle that all major traffic and arterial roads should be automatically excluded from hawking zones. The Supreme Court appointed a Committee to comply with the directions and the question of demarcation of hawking and non-hawking zones/streets and the total number of hawkers who could be accommodated. The Committee was to examine LPA NO.766/2008 Page No.13 the proposal in respect of each road and decide whether hawking could be permitted keeping in mind nature of hindrance to vehicular or pedestrian traffic etc. 16. In the subsequent Order dated 12th February, 2007 the Supreme Court noticed the findings of the Committee and implementations of its directions. The Court also noticed that National Policy on Urban Street Vendor was framed in 2004 and street vending as a profession had increased manifold in the city of Delhi, Mumbai and Kolkata with the said cities having 2,00,000, 2,50,000 and 1,50,000 vendors respectively. The Supreme Court in this Order observed that a Committee had been set up by the Maharashtra Government to implement the National Policy on Urban Street Vendors and expressed its satisfaction that the State Government had initiated a process for implementation of National Policy of Street Vendors by framing regulations. It was directed that the regulations so framed should be in consonance with the aims and objects of National Policy to render some sort of succour to urban street vendors to enable them to earn livelihood through hawking. The Supreme Court, further, clarified that the scheme so framed should not be influenced by any scheme framed by the Supreme Court or directions issued by the Court in the intregnum. LPA NO.766/2008 Page No.14 17. The National Policy of Urban Street Vendors, 2004 estimates that city hawkers/vendors constitute nearly 2% of the population of a metropolis and hawking is not only a source of employment but provides affordable services/goods to majority of the urban population. The society needs to recognize this fact and give due credit to hawkers. Constant harassment of hawkers by police and civic authorities is accepted as an unacceptable reality and the need to protect hawkers and control discretion and arbitrary exercise of powers by authorities is emphasized. Right to carry on trade or business by way of hawking on streets and pavements is recognized and it is observed that street vendors cannot be denied their rights except for justifiable and valid reasons. The said policy refers to Article 39 of the Constitution that the State shall endeavour and direct its policies so that : (a) the citizens, men and women equally have the right to adequate means of livelihood and (b) ownership and control of material sources of the community are so distributed as best to subserve the common good. 18. The Policy notices orders and directions of the Supreme Court and the fact that some cities have framed guidelines for regulating urban vending activities. It emphasizes that there is greater need to recognize the rights of urban street LPA NO.766/2008 Page No.15 vendors/hawkers by the local governments as the demand for their services/wares is highly specific and varies from location to location and from time to time. It is stated that there is need to accept the natural propensity of street vendors to locate at particular places at particular times. It is observed that contrary to the said principle, the present urban norms disregard formation of such natural markets and are not supportive. Guidelines have been stipulated for regulation of street vending/hawking and when and under what circumstances an area can be declared as a non-hawking area. Clause 4.1.1., reads : ―4.1.1. Spatial Planning norms – demarcation of vending zones x x x x  It should take into account the natural propensity of the Street vendors to locate in certain places at certain times in response to patterns of demand for their goods/services.  x x x x  x x x x  x x x x  Designation of vendors markets/no-vending zones should not be left to the sole discretion of any civic or police authority but must be accomplished by a participatory process by a Town Vending Committee (which for large towns/cities may be constituted on the basis of wards) whose membership may be as follows: o Muncipal Authority o Traffic and Local Police o Public Land Owning Authority LPA NO.766/2008 Page No.16 o Associations (Market, Traders, Resident Welfare, slum & chawl, etc.) o Representative from associations of Street vendors (static & mobile) o Representative from lead Nationalized Bank/Commercial Bank. The hawker‘s representatives should preferably constitute atleast 25% to 40% of the total number of members of the Committee. Atleast 1/3rd of the representatives of street vendors should be women. Process for selection of street vendors‘ representatives should be based on the following criteria:  Membership based organizations  Financial Accountability The Committee should ensure that provisions for space for vendors‘ markets are pragmatic, consistent with formation of natural markets, sufficient for existing demand for vendor‘s goods and services, as well as likely increase in line with anticipated population growth. Provisions of space may include temporary designation as vendors‘ markets (e.g. as weekly markets) whose use at other times may be different (e.g. Public Park, parking lot). Timing restriction on urban vending should correspond to the needs of ensuring non- congestion of public spaces/public hygiene.‖ 19. On the question of reallocation and rehabilitation, the National Policy states : ―5. Relocation and Rehabilitation Street vendors are most vulnerable to forced eviction and denial of basic right to livelihood. It causes severe long-term hardship, impoverishment and other damage including loss of dignity. Therefore, no street vendor should be forcefully evicted. They would be relocated with adequate LPA NO.766/2008 Page No.17 rehabilitation only where the land is needed for a public purpose of urgent need. Therefore: a) Eviction should be avoided wherever feasible unless there is clear and urgent public need in the land in question. b) Where relocation is absolutely necessary, notice of minimum 30 days should be served to the concerned vendors. c) Affected vendors/representative‘s involvement in planning and implementation of the rehabilitation project. d) Affected vendors should be assisted in their efforts to improve their livelihoods and standards of living or at lease to restore them, in real terms to pre-evicted levels. e) Loss of assets should be avoided and if possible compensated. f) State machinery must take comprehensive measures to check and control the practice of forced evictions. No hawker/street vendor should be arbitrarily evicted in the name of ‗beautification‘ of the cityscape. The beautification and clean up programmes undertaken by the states or towns should actively involve street vendors in a positive way as a part of the beautification programme.‖ 20. Keeping all these aspects in mind, MCD has framed Scheme of MCD for Squatters/Hawkers, 2007. The said Scheme notices and implements the National Policy on Urban Street Vendors, 2004 and the decision/directions given by the Supreme Court in several cases. 21. The said MCD Scheme has been considered by the Supreme Court in the case of Sudhir Madan and others LPA NO.766/2008 Page No.18 versus Municipal Corporation of Delhi and Others. In the Order dated 6th February, 2007 reported in 2007 (8) SCALE 334, the