The Bombay High Court has directed the Brihanmumbai Municipal Corporation (BMC) to frame a policy to regulate and control the menace of unlicensed street vendors, saying that an alternative policy might serve the “purpose of balancing”. Emphasising that not all of the vendors deal with smuggled goods and contraband, the court also said that these vendors have fixed clientele and are trying to ebb out a living in the maximum city.
“We are asking the BMC to frame a policy… some form of a command and control approach within the frame of the statute but distinct from the designated hawking zone,” said a bench of Justices Gautam Patel and Kamal Khata.
The court has, however, clarified that the rights of unlicensed street vendors cannot be placed higher than those of others who use public places and footpaths, hence emphasised that there is a need to regulate these vendors. It also said that the advantage of such a policy is that no one can claim right to that place.
The court had taken a suo motu (on its own) cognisance of the issue, while hearing a petition by mobile shop owners in Borivali, who claimed that access to their shops was blocked by illegal hawkers in November 2022.
The unlicensed street vendors deal with food items and household items. “There are many vendors. But not all of them are dealing with smuggled goods or contraband. They are sandwich-wala, batata vada-wala and banana-wala. They have their clientele,” said the bench.
The court said that the BMC can explore the concept of mobile vendors who would have fixed days and hours to vend in fixed localities. The corporation would make the space available to them. It said that residential neighbourhoods may require greater focus on household and consumables and wares for children and the requirement of commercial areas would be different.
“This will identify those who fall outside the licensing regime entirely, if they are not parked in a licensed zone and are also not in mobile vans. It would enable the BMC to identify who, when and where should be permitted to vend and for what period of time,” the bench said. The exercise needs to be done not only on a city wide basis but also ward wise and locality wise basis.
The BMC has repeatedly said that they are taking action against illegal hawkers, at times with the help of police, but they return the next day. BMC counsel SU Kamdar also said that, on a regular basis they have been initiating criminal action.
The judges, however, said that this seems “biased”, and said that there was no harm in forming a regulation policy, which could be on a rotational basis.
“It seems biased to us… I am not prepared to see every one of these hawker as an offender because he doesn’t have a licence. He is trying to carve out a living. I don’t agree with the corporation saying that it will use full police force,” Justice Patel said.
When the BMC counsel said that they are creating licensing zones / hawking zones, Justice Patel quipped: “Your licensing scheme is also a money making racket.”
Court said there is a need to regulate these vendors since they take over public spaces and footpaths and thereby force the pedestrians to use the roads / motorable carriage for walking which increases risks of accidents. “Today you are forcing women, children and elderly to walk on the roads. Today housing societies, shops are obstructed. (That) Is what the concern is. Footpaths or carriageways have to be kept cleared,” Justice Kamal Khata said.
Highlighting that balance needs to be struck between the vendors, pedestrians and vehicle owners, the HC said: “This has a cascading issue… Use of footpath forces pedestrians to walk on the motorable carriageway. Motors cannot be expected, as yet, to fly. And they have only one place to use, which is the same carriageway.”
The court said there may be arguments “for more facilities for motorists (coastal Road notwithstanding) but there is no doubt that the use of footpaths cannot be compromised. This is also a safety issue”.
While asking the BMC to explore alternative policy, the court has stressed on the fact that “it is inconceivable that an unlicensed street vendor can claim permanency of street impacting constitutional rights of citizens and taxpayers”.
“It is inconceivable that anyone could say that this piece of earth, which is in Mumbai, which is public land, is in my occupation and hence is mine and no one can remove me from this,” the bench said.
Asking the corporation to continue with its “routine” action against hawkers while it frames policy, the HC said: “BMC will continue to have its problems to be assaulted. It comes with the territory. There is nothing much anyone can do except take police protection where required,” the bench said. The HC has kept the matter for hearing on June 24.
