SUPREME COURT OF INDIA

Before:- S.S.M. Quadri and S.N. Phukan, JJ.

Civil Appeal No. 1576 of 2001 (arising out of S.L.P. (C) No. 8194 of 2000). D/d. 26.2.2001.

Navi Mumbai Municipal Corporation and others - Appellants

Versus

Navi Mumbai Hawkers and Workers Union, Nerul and others - Respondents

Bombay Municipal Corporation Act, 1988, Section 313A - Hawkers - Allotment of pitches - Hawking zones - Clarification of order - Clarification given by High Court does not suffer from any illegality - No right to permanency is granted to hawkers nor their character as licensee has been altered by the High Court - If permanent structure is erected, open to appellant to take appropriate action.

[Paras 7 and 8]

Cases Referred :-

Sodam Singh v. New Delhi Municipal Committee, AIR 1989 Supreme Court 1988.

JUDGMENT

Heard Mr. RF Nariman, learned senior counsel for the appellants and Mr. Gopal Subramanium, learned senior counsel for the respondents.

2. Leave is granted.

3. This appeal is directed against the order of the High Court of Judicature at Bombay dated March 9, 2000 in Civil Application No. 6256 of 1999 in Writ Petition No. 324 of 1999.

4. It appears that to give effect to the directions of this Court in Sodam Singh and etc. v. New Delhi Municipal Committee and another etc., AIR 1989 Supreme Court 1988, the parties have agreed on certain terms which are incorporated in the order passed by the Division Bench of the High Court of Bombay in Writ Petition No. 324/1999 on February 1, 1999. The High Court, inter alia, directed :-

"Now respondent No. 2 is directed to accommodate these hawkers in the newly set up hawking zones in the respective areas by giving an area of 4 x 6 feet for positioning the person plus his goods on payment of licence fee of Rs. 66 per month. Calculated at the rate of Rs. 30 per month for an area up to 1 square meter for every additional 01.00 sq. meter Rs. 3/-."

5. Having been unsuccessful in contempt proceedings against the appellants, the respondents moved the High Court for clarification of the said order which was clarified by the impugned order. Para 4 of the impugned order which is relevant for our purpose, reads as follows :-

"In our opinion, the order of the Division Bench clearly contemplates that the concerned hawkers should be allotted demarcated pitches of an area of 4' x 6' for displaying their goods or a bench with a cover to beat the sun or rain. In any event, the interpretation put by the 2nd respondent-Corporation is wholly impracticable and unworkable. If the hawkers are not given specified pitches, it will lead to chaos and there will be fights amongst the hawkers for occupying suitable pitches. We may hasten to add that the allotment of specified pitch does not mean that the concerned hawker would acquire any right in respect of the pitch allotted to him. It will be open for the 2nd respondent to shift the concerned hakwer to any other hawking zone. We may also make it clear that the hawkers will not be entitled to erect the permanent structure/fixture on the pitch allotted to them. If any such permanent structure/fixture is erected, it will be open for the 2nd respondent to take appropriate action. The 2nd respondent shall make the allotment of the specified pitches to the hawkers in question within eight weeks."

6. Mr. R.F. Nariman contends that while passing the impugned order the High Court has not taken note of the following portion in the order dated February 1, 1999 :-

"The aforesaid order will not be construed as authorising hawkers to set up shop premises or claim permanency at any particular place, which may be allotted for hawking....."

7. The learned counsel argues that the impugned order of the High Court has conferred on the respondents right of permanency which was neither contemplated in the order of the High Court dated February 1, 1999 nor can such a permanency be granted on principle.

8. The appellants established hawking zones in which the respondents are to occupy pitches as licensees. A perusal of para 4 of the order, quoted above, shows that the clarification given by the High Court does not suffer from any illegality. In our view, that is the correct clarification of the order of the High Court passed in Writ Petition No. 324/99 referred to above. It is only to prevent any arbitrary exercise of power by the appellants by ordering change of pitches that the High Court observed "It will be open for the 2nd respondent to shift the concerned hawker to any other hawking zone." However, the High Court has made it abundantly clear that the allotment of the specified pitches does not mean that the hawkers would acquire any right of permanency in the pitches allotted to them. In view of this and the further observation of the High Court that the hawkers will not be entitled to erect.

9. Permanent structure on pitches allotted to them and that if any such permanent structure is erected it will be open to the 2nd respondent to take appropriate action, we are not inclined to interfere with order under challenge. We are, therefore, satisfied that no right of permanency is granted to the hawkers nor their character as licensee has been altered by the High Court.

10. For the above reasons, the appeal is without any merit; it is accordingly dismissed, but without any order as to costs.

Appeal dismissed.