A division bench of Justices B R Gavai and M S Karnik refused to accept contentions made in a bunch of petitions filed by city hawkers that according to the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, the municipal authorities cannot evict them.
The petitions claimed that after the act came into effect they are permitted to set up shops anywhere and the municipal bodies cannot evict them as there are now no 'non-hawking zones.
The court, however, opined that if these contentions were to be accepted it would create chaos in all cities.
The bench in its 118-page judgement referred to the September 29 stampede on the Elphinstone Road railway station foot overbridge that resulted in the death of 23 people.
"On account of the mad rush of the passengers, there was commotion on the bridge, which led to loss of 23 precious human lives. The presence of large number of hawkers on the foot overbridge is said to be one of the major contributing factors in the mishap," the court said.
Relying on a Supreme Court judgement of 2009 after which the municipal bodies had identified hawking zones, the court said, "No hawking would be permitted within 100 metres from any place of worship, holy shrine, educational institutions and hospitals, and within 150 metres from any municipal or other markets or from any railway stations."
No hawking would be permitted on foot bridges and overbridges also, the court added.
For places of worship, the bench said hawkers can be permitted to sell only items required by devotees as offerings such as flowers, candles, coconuts and so on.
"We are faced with a situation to balance the rights of the hawkers to do vending business to earn their livelihood on one hand, and rights of the citizens to use the footpaths and roads without causing any obstruction and also ensure their security," the court said.
The bench noted that till vending and non-vending zones are notified by the authorities in accordance with the act, "hawking activity can be continued only in areas identified as hawking zones, as approved by the apex court, and in no case, such activity can be permitted in non-hawking zones."
The bench further observed that footpaths and pavements are public properties intended to serve general public.
"They are not laid for private use, and their use for private purpose frustrates the very object for which they are carved out from portions of the public roads," the court said.
"We are therefore of the view that while considering the rights of the hawkers to conduct their vending business on streets, we will have to balance the rights of the pedestrians to walk on the footpaths and the citizens to use the roads for the purpose of plying their vehicles," the court noted.
The bench ordered that the municipal bodies that have not conducted surveys to identify vending zones, carry out the exercise in the pattern adopted by the Municipal Corporation of Greater Mumbai.
It also said that corporations and councils, where town vending committees have not been formed, should asked to constitute these in accordance with the 2009 policy within six weeks and conduct surveys within three months thereafter, the court directed.
The court further held as "unsustainable" a Government Resolution issued on January 9 which directs for forming town vending committees without representation of street vendors.
"This defeats the very purpose of the Act which emphasises on participation of representatives of street vendors at all important stages," the court observed.
"The said government resolution which provides for doing away with the said mandatory requirement would not be sustainable."
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