Bombay Hawkers' Union vs Bombay Municipal Corporation (3 July 1985)
Before: Y.V. Chandrachud, C.J. and A.P. Sen, J.

What is Hawkers or what do you mean by Hawking?
Hawkers and Vendors have similar meaning and they are often swapped. Though Hawking is a street trade done by moving from one place to another while vending is another street trade that is done by occupying a space on pavements i.e. temporary shelters.

Hawking (Vending) means the act of selling of goods for a living. It is one of the oldest occupations in India and by virtue of Article 19(1) (g) every citizen has a right to carry on any lawful trade or business. It is this right vested in the citizens that the hawkers exercise while engaging themselves in the trade.

Hawkers Zone
Marking of hawking zone is necessary because it constitute a serious obstruction to the public and creates traffic problems. State and the Municipality got the right to designate and allocate the places from where street trading can be done. Hawker doesn't have the right to earmark the place to trade.

In Bombay Hawker Union vs. Bombay Municipal Corporation, the Court held that The Non-Hawking Zones maybe fixed by the Municipal Commissioner in his discretion, in consultation with the Bombay Municipal Corporation.

Facts of the case

• These writ petitions were filed by large number of hawkers who carry on the trade of hawking their wares in Greater Bombay.
• They hawked their wares standing or squatting on public streets, which constituted a serious obstruction to the free movement of pedestrian and vehicular traffic.
• Some of the streets in Bombay were so incredibly flooded with merchandise sold by hawkers that it was impossible for the pedestrians to walk on those streets.
• The Bombay Municipal Corporation had been making herculean efforts to clear the streets of these and other obstructions but those efforts had met with intense opposition.
• This tug of war between the Corporation and the hawkers led recently to a serious incident in which an officer of the Corporation engaged in the task of demolishing unauthorized constructions put up on public streets, was shot at.

Petitioners Contention

1. They had fundamental right to carry on their trade and respondents are interfering with that right
2. Respondents arbitrarily refused to grant or renew licenses for hawking because of which hawkers got removed along with their goods from the places where they did their business.
3. Asked for a declaration that Sections 313, 313 A, 314 (3) and 497 of Bombay Municipal Corporation Act, 1888 are void.

Section 313 - Prohibition of deposit,. etc., of things in streets

Section 313A - License for sale in public places.

Section 314 (3) � Power to remove without notice anything erected, deposited or hawked in contravention of section 312, 313 or 313A;

(3) any article whatsoever hawked or exposed for sale in any public place or in any public street in contravention of the provisions of section 313A and any vehicle, package, box, board, shelf or any other thing in or on which such article is placed or kept for the purpose of sale.

Section 497 - Redemption of charge for improvement expenses.
These writ petitions were heard from time to time. It was eventually decided that the Municipal Commissioner should frame a scheme for regulating the grant of licenses to hawkers and for creating hawkers zone wherever necessary.

The hawkers union showed hardly any response to the proposed scheme and it took no decision thereon.
Then the court passed the following order: "If the members of the Hawkers committee do not come to any decision by consensus. The commissioner of Bombay Municipal Corporation will be free to frame the scheme."

In respect to the suggestions of the Hawker's Committee, the Municipal Commissioner proposed a modified scheme.

Judgment
It's unnecessary to consider the validity of the challenge made by the petitioners to certain provisions of the Bombay Municipal Corporation Act, 1888.

The right conferred by Article 19 (1) (g) of the Constitution to carry on any trade or business is subject to the provisions of clause (6) of that article, which provides that nothing in sub-clause (g) of Art. 19 (1) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

The affidavits filed by the respondents showed that the impugned provisions of Bombay Municipal Corporation Act are in the nature of reasonable restrictions in the interests of the general public, on the exercise of the right of hawkers to carry on their trade or business.

No one has any right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public.

Public streets by their very nomenclature and definition are meant for the use of the general public. They are not laid to facilitate the carrying on of private trade or business.

If hawkers were to be conceded, the right claimed by them, they could hold the society to ransom by squatting on the center of busy thoroughfares, thereby paralyzing all civic life.
They made it impossible for the pedestrians to walk on footpaths or even on the streets properly so called.

Written By: Shashwata Sahu, Advocate, LL.M., KIIT School of Law