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Synopsis

In a recent order, the Bombay High Court emphasised the imperative to prevent the permanent takeover of public footpaths and roads by unlicensed vendors in Mumbai.

A division bench comprising Justice G.S. Patel and Justice Kamal Khata, presided over the case, which was initiated suo motu by the High Court last year to address the rampant issue of illegal vendors proliferating across the city.

The court observed that it is “inconceivable that an unlicensed street vendor can claim permanency on a public street and that this can be permitted, thus impacting the Article 21 and Article 14 rights of pedestrians and other rate paying citizens or ratepayers.”

The court contemplated on the fundamental question raised in the petition, “who is this city for?”. This question according to the court arises due to the city's limited land space, leading to competing interests. Pedestrians, vehicle owners, shopkeepers, merchants, and street vendors all vie for a share of this space.

The bench referenced a previous order from May 3, 2019, highlighting the recurrence of encroachments on footpaths, even after their removal, and emphasised the necessity of holding police authorities accountable for maintaining clear footpaths and preventing encroachments from returning. The Commissioner of Police was directed to issue an office order to all Beat Marshals to this effect.

The court stated that an unlicensed vendor's right to public space under Article 19 cannot justify permanent occupation at the expense of others. Article 19 allows for regulation of livelihood rights, with restrictions specified in Articles 19(2) to 19(6), including considerations for the general public. Asserting permanency in public spaces deprives others of their fundamental rights. Municipalities have the authority to regulate public spaces for the common good. Therefore, claiming exclusive occupation of public land in Mumbai is untenable. “there is no doubt that the right to pedestrian use of footpaths cannot be compromised,” the court further said.

The court also highlighted the safety concerns arising from unlicensed occupation of footpaths, which forces pedestrians onto motorable carriageways. With footpaths encroached upon by unlicensed vendors, pedestrians, endowed with rights under Articles 14, 19, and 21, are compelled into the path of motor vehicles. This scenario poses significant risks, as pedestrians, with their fundamental rights, face potential collisions with motorists who have comparatively fewer rights in such situations.

However, the court proposed innovative solutions such as pop-up markets or mobile vending concepts to tackle this issue effectively. The court observed that the provisions outlined in the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 suggest a framework for such measures, although they have yet to be translated into a concrete policy. Therefore, it urged the Brihanmumbai Municipal Corporation (BMC) to differentiate between types of street vendors and their offerings. They suggested that the BMC specify which goods/services are suitable for mobile vendors, tailored to each locality's needs. Additionally, they stressed the need for customised protocols for designated days and hours, considering the unique characteristics of each locality.

The court suggested that such measures could serve a dual purpose: keeping the area clear on most days while regulating usage on specified days and hours. The court citing examples of cities worldwide said that, “Most modern cities around the world from London to New York and cities in South America and Europe have some variant or the other of such a scheme.”

Furthermore, the court stressed the importance of proper monitoring of all street vending licenses. It recommended the establishment and maintenance of a comprehensive database with biometric or other forms of authentication for vendor identification. Licensing should strictly adhere to the terms and regulations, with violators facing structured penalties ranging from fines for minor offences to suspension or cancellation for serious violations.

The court refrained from imposing additional conditions on the BMC regarding the clearance of specific areas and removal of unlicensed vendors. Instead, it entrusted the BMC with considering the suggestions and making appropriate submissions to the State Government.

Both Senior Advocate S.U. Kamdar representing the BMC and Senior Counsel Sharan Jagtiani representing the Bombay Bar Association requested that the matter be kept pending.

Therefore, the court adjourned the matter for further directions on June 24, 2024, entrusting the BMC commissioner with the responsibility of considering and implementing the proposed measures to address the issue of unlicensed vending effectively.

 

Cause Title: High Court On Its Own Motion V State of Maharashtra [WP No. 630 of 2023]