| Headnote |
Constitution of India, 1950-Article 19(1)(g)-Public Street-User by citizen-Scope of-Street-trading-Whether a fundamental right-Right of a hawker-Ambit of. Constitution of India, 1950-Articles 32, 136-Deciding the question of livelihood and survival of large number of families-Whether Court to adopt compassionate approach-Claims of genuine squatters/hawkers-Determination-Court's directions to NDMC and MCD. Constitution of India, 1950-Articles 32,136, 19(1)(g)-Petitions by hawkers-Pending-Their claims to be finalised- Court's direction on listing of new petitions. The writ petitions under Article 32 of the Constitution and certain appeals under Article 136 of the Constitution filed against adverse judgments of the High Court, were referred to a Constitution Bench for deciding the grievance of the pavement-traders that the Municipal Authorities were violating their fundamental rights under Articles 14, 19(1)(g) and or 21 of the Constitution by refusing to permit them to trade on streets and footpaths in different localities of the city of Delhi, under the respective control of the NDMC and MCD. The Constitution Bench in Sodan Singh & Others v. New Delhi Municipal Committee & Others, [1989) 4 SCC 155 held that the right to carry on trade or business mentioned in Article 19(1) (g) of the Constitution on street pavements, if properly regulated, could not be denied on the ground that the street pavements were meant exclusively for pedestrians and could not be put to any other use; that the right of a pavement-hawker was subject to reasonable restrictions under clause(6) of Article 19 of the Constitution and the State as trustee was entitled to impose all necessary limitation on the character extent of user by such pavement-hawkers; that there could not be a fundamental right of citizen to occupy a particular place on the pavement where he would squat and engage in trading business, that a hawker could not assert a fundamental right to occupy permanently specific places on any pavement, that the right to carry on any trade or business and the concept of life and personal liberty enshrined under Article 21 had no connection whatsoever and, that Article 21 had no application. After stating the law, the Constitution Bench remitted all the petitions to the Division Bench for final disposal. After the decision rendered by the Constitution Bench, several other writ petitions came to be filed in this Court. NDMC Cases. This Court by its order dated 21st December, 1989 appointed a Committee, known as the Thareja Committee. In the light of the NDMC's Scheme vide Resolution No.28 dated 10.11.1989 and the decision in Sodan Singh the Committee examined the claims made by the squatters and identify street pavements in different areas where street hawking could be regulated without being a hindrance to other users. A direction was also given by order of 23rd March, 1990 that pending receipt of the report from the Committee hawking would be permitted subject to the same being regulated in sensitive areas. During preliminary scrutiny, the Committee found that 'takhats' were given on hire by those who claimed to possess them on rentals varying from Rs.300 to Rs. 1,000 per day depending on the season or the 'takhat holders' used to carry on business at the said 'takhats' through servants while they themselves attended to their business elsewhere and at certain places the 'takhat-holders' whose names appeared in the petitions were non- existent i.e. the orders were in fictitious names. The Committee considered it imperative to undertake a strict scrutiny to ensure that the benefit of the scheme percolated to the deserving and not to those who were merely exploiting the fluid situation by obtaining court orders on distorted and inaccurate facts. The Committee, therefore, invited claims in the form of a statement on oath coupled with original genuine documents in support of it. This was done by public notices at the spot and through counsel in case of pending cases. In addition, local visits were made to verify presence of the claimant at the site where he professed to carry on business and if not found at such visits he was asked to substantiate his claim by proof of challan, fine receipts or tehbazari receipts in order to eliminate bogus and fictitious claims. Records of NDMC were also checked for cross verification. Out of the 460 claims registered with the Committee, 458 related to Resolution No.28 while the remaining two concerned contempt proceedings. Out of the 458 claims, the Committee scrutinised 440 claims out of which it upheld as many as 114 claims for allotment of stalls/kiosks/sites, etc., (area mentioned for each claimant) and 110 claims for other reliefs referred to in Resolution No. 28. Seventeen claims in respect of Sarojini Nagar area could not be verified by the Committee, as the claimants contended that they were not in a position to meet the minimum proof standard of producing at least one genuine document in a time gap of one year as they were under the patronage of a local politician, and hence they were never disturbed by the police or any other authority and, therefore, they were not in a position to offer proof of the type insisted upon by the Committee. The non-cooperation by the N.D.M.C. added to the problems of the Committee. The Committee, therefore, sought the guidance of the Court to resolve this deadlock. The pavement-hawkers, submitted that the strict standard adopted by the Thareja Committee for recognising the claim of a pavement- hawker overlooked the fact that most of the pavement-hawkers were poor and illiterate persons who could not be expected to have maintained proper records of receipts, challans, etc., issued by the police or other local authorities to support their claims; that the standard of proof expected by the Thareja Committee was unrealistic and it was essential to modify the same to do complete justice to the concerned parties; that the deadline prescribed by the Thareja Committee was strictly enforced, with the result that many of the rightful claimants were denied the opportunity of submitting their claims to the Thareja Committee and having the same duly scrutinised and verified by him; that several pavement-hawkers who were unaware of the constitution of such a Committee and to whom a cause of action for seeking redress through court had not arisen were left out from consideration and as such pavement-hawkers were likely to be denied their rightful place in the scheme if the scheme was finalised without their knowledge; that scores of writ petitions were filed after the Constitution Bench rendered its decision and most of the petitioners were not before the Thareja Committee; and that if strict proof as provided by the guidelines of Resolution No. 28 is not insisted upon in respect of Sarojini Nagar area claimants, there was no reason why it should not be relaxed in respect of the other claimants whose claims were rejected. NDMC point out that the situation in Sarojini Nagar was completely different and uncomparable with other areas in view of the peculiarity of the prevailing circumstance. MCD Cases The MCD prepared a scheme for regulating squatting/hawking business in Delhi and appointed a Committee for the identification of squatting/non-squatting areas in different zones. This Committee was expected to take a final decision regarding the areas identified for squatting/hawking. This was to be done in consultation with the Commissioner of Police so that the needs of vehicular traffic and other police/health problems could be taken care of. The criteria for priority allotment here also determined. Under the scheme the squatters were expected to agree to their being shifted from one zone to another but they showed reluctance to move on to less lucrative zones. The areas in the ten zones under the MCD control were duly identified on the plans and the total number of squatters/hawkers to be accommodated in the areas were also worked out. Objections were invited from the squatters/hawkers but that barring a few others did not react. |
