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2018 DIGILAW 1668 (BOM)

Bombay Hawkers v. Municipal Commissioner

2018-07-11

A.S.OKA, RIYAZ I.CHAGLA

body2018
ORDER 1. Not on board. Taken on board. 2. A report dated 11th July 2018 is submitted by the Senior Inspector of Shivaji Park Police Station stating that the members of the Petitioner were carrying on business within 150 meters from Dadar railway station (West). 3. The learned Counsel appearing for the Petitioner submits that though the members of the Petitioner may be carrying on business within the distance of 150 meters from Dadar railway station (West), there are temples in the vicinity of the station and the members of the Petitioner are selling flowers and other material used for performing Pooja in temples. 4. The learned Counsel appearing for the Petitioner relied upon the direction contained in clause (xiii) of paragraph 86 of the judgment and order dated 1st November 2017 in Writ Petition No. 652 of 2017 (Azad Hawkers Union & Ors. v. Union of India & Ors.). He submits that the embargo on hawking within the distance of 100 meters from the place of worship is not applicable to those hawkers who are selling such items as are required by the devotees for offering to the Deity. He, therefore, submitted that even if the members of the Petitioner were carrying on business within 150 meters of Dadar Railway station (West), their business should be protected as they are selling only that material which is required for performing Pooja in the temples. 5. What is relevant for consideration is clauses (xii) and (xiii) of paragraph 86 of the judgment, which read thus:- "(xii) It is further directed that in view of the direction issued by the Hon''ble Supreme Court in 2004 Ekta Judgment, which is duly reiterated by the Hon''ble Supreme Court in 2009 Ekta Judgment, no hawking would be permitted within 100 metres from any place of worship, holy shrine, educational institutions and hospitals or within 150 metres from any municipal or other markets or from any railway station. It is also directed that no hawking would be permitted on footbridges and overbridges. (xiii) It is clarified that outside places of worship hawkers can be permitted to sell only such items as are required by the devotees for offering to the deity or for placing in the place of worship e.g. flowers, sandalwood, candles, agarbattis, coconuts etc." 6. It is also directed that no hawking would be permitted on footbridges and overbridges. (xiii) It is clarified that outside places of worship hawkers can be permitted to sell only such items as are required by the devotees for offering to the deity or for placing in the place of worship e.g. flowers, sandalwood, candles, agarbattis, coconuts etc." 6. As indicated by the direction in clause (xii), there is a ban on hawking within 100 meters from any place of worship and 150 meters from any Railway station. Clause (xiii) carves out an exception in case of those who are hawking within 100 meters from a place of worship. Prima facie it appears to us that clauses (xii) and (xiii) will have to be construed harmoniously considering the object of issuing the directions. Considering the situation of most of the Railway stations in our cities, there is an embargo imposed on carrying on hawking within 150 meters from Railway stations. Even assuming that there are temples within the distance of 150 meters from the Railway station, allowing hawking to those who are selling articles of worship within 150 meters from Railway station will completely defeat the above directions. If the argument canvased by the learned Counsel appearing for the Petitioner is accepted, considering the fact that near many Railway stations in the city of Mumbai there are temples, the hawkers will occupy the area in the close vicinity of the station on the pretext that they are selling the material used for worship. Prima facie, it appears on the conjoint reading of clauses (xii) and (xiii), if the area of 100 meters from the place of religion falls in prohibited distance of 150 meters from a Railway station, the exception carved out by clause (xiii) will not be applicable. 7. Therefore, in our view, even assuming that the members of the Petitioner for whose benefit this Petition is filed, are selling only that material which is required for performing Pooja, they cannot be permitted to hawk within the distance of 150 meters from the Railway station. A judicial notice will have to be taken of the fact that the area outside the Railway stations in the city is a very congested area. If it is occupied by large number of hawkers, it will already affect the commuters, public transport vehicles, etc. 8. A judicial notice will have to be taken of the fact that the area outside the Railway stations in the city is a very congested area. If it is occupied by large number of hawkers, it will already affect the commuters, public transport vehicles, etc. 8. Hence, no case is made out for grant of ad-interim relief. 9. The Petition shall be listed on the scheduled date after all office objections are removed.