High Court of KeralaSingle Judge2018-10-09Disposed of with directions

Sajjad, Mohanan and ThankamonI v. State of Kerala and Others

Case / Petition Number:WP(C).No. 1234 of 2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Alexander Thomas
Judgment Date: 2018-10-09
Court Decision / Holding: With these observations and directions, the Writ Petition is finally disposed of. The District Collector shall consider the petitioners' representation within one month, give them an opportunity of hearing, and, preferably within three months, decide on allowing street vending in mobile carts without obstructing traffic or public property. The Panchayat shall submit a report. Until a decision is taken, petitioners may continue street vending in mobile carts without obstructing traffic, pedestrians or public land. If the representation is not filed within the time limit, the benefit of this direction shall stand vacated.
Final Disposition: Disposed of with directions

Parties to the Case

Appellants / Petitioners

Sajjad
Mohanan
ThankamonI

Respondents

State of Kerala represented by its Secretary to Government, Local Self Government Department, Government Secretariat, Thiruvananthapuram
The District Collector, Kollam
The Sub Divisional Magistrate, Kollam
The Tahasildar, Taluk Office, Kollam
The Assistant Engineer PWD Roads Division, Chathanoor, Kollam
The Village Officer, Meenad Village, Chathanoor, Kollam
The Secretary, Chathanoor Grama Panchayath, Chathanoor, Kollam

Legal Representation & Advocates

Counsels for Petitioners

• Sri Saju J. Panicker

Counsels for Respondents

• Sri K.V. Sohan, State Attorney, instructed by SMT. K.B. Soni, Govt Pleader (for R1–R6)
• Sri M.R. Sasith Panicker, Counsel for R-7

Case Synopsis & Summary

The petitioners, three street vendors, challenge eviction actions initiated by the Tahsildar under the Land Conservancy Act for vending near the Chathanoor Bus Stand, Kollam. They have long operated tea vending in temporary movable carts within the territorial limits of the 7th respondent Grama Panchayat, about 200 meters from the National Highway, without causing obstruction to traffic or pedestrians. The petition contends that pending the process under the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (Central Act 7/2014) and the Scheme framed thereunder, eviction should be blocked until the process of survey and issuance of certificates of vending under Sec.4. It emphasizes that the proviso to Sec.3(3) bars eviction until that process is complete. It further contends that the 7th respondent Panchayat cannot be treated as the local authority under Sec.2(1)(c) of the Street Vendors Act, raising questions about the Act's applicability. Counsel argued that the petitioners would limit vending to mobile carts so as not to obstruct traffic. The court, noting a status quo order, directed the 2nd respondent District Collector to entertain a comprehensive representation within one month and consider permitting mobile-cart vending without obstruction, with a hearing for petitioners and a report from the Panchayat. The District Collector is directed to decide within about three months, citing Gainda Ram & ors. v. M.C.D. & ors. and the right to livelihood of street hawkers. The petition is finally disposed of with these directions.

Provisions of Law Cited

Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (Central Act 7/2014)Sec.3(3) provisoSec.4Land Conservancy ActKerala Panchayat Raj Act, 1994Sec.2(1)(c) of Street Vendors Act

Legal Doctrines & Maxims

Right to livelihood of street vendors
Gainda Ram & ors. v. M.C.D & ors., (2010) 10 SCC 715 – recognition of the right of street hawkers to conduct vending without obstruction

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners allege they are lawfully conducting tea vending in temporary movable carts near the Chathanoor Bus Stand within the 7th respondent Panchayat's territory. They have operated for years without obstructing traffic or pedestrians. They challenge the Tahsildar's evictions under the Land Conservancy Act and seek protection under the Street Vendors Act, arguing that the Act's proviso to Sec.3(3) bars eviction until the process of survey and issuance of certificates under Sec.4. They contend the local authority is not the Panchayat and that vending should proceed in mobile carts to minimize disruption. They request a comprehensive representation to be considered by the District Collector and for the Act's scheme to be implemented.

Contentions of Respondents

The respondents maintained that eviction proceedings were under the Land Conservancy Act and that the applicability of the Street Vendors Act is in question since the Panchayat is not within the Act’s local authority definition in Sec.2(1)(c). They urged adherence to existing orders and the need for a lawful survey, registration and certification process, with appropriate regulation by the local authorities.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Gainda Ram & ors. v. M.C.D & ors.	(2010) 10 SCC 715	Positive	Recognises the right of street hawkers and street vendors to conduct activities in a manner that does not obstruct the public.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY ,THE 09TH DAY OF OCTOBER 2018 / 17TH ASWINA, 1940** ## **WP(C).No. 1234 of 2018** ## **PETITIONERS:** - **1 SAJJAD, AGED 49, S/O.SHAMSUDEEN, THAZHAVILA PUTHEN VEEDU, EARAM, CHATHANOOR P.O., KOLLAM 691 572.** - **2 MOHANAN, AGED 59, S/O.BHALUGUNAN, KUNNUVILA PUTHEN VEEDU, MEENAD, THAZHAM, CHATHANOOR P.O., KOLLAM.** - **3 THANKAMONI, AGED 60, D/O.PURUSHAN,THUMPARAVELATHIVEEDU,EARAM, CHATHANOOR P.O., KOLLAM 691 572 BY ADV. SRI.SAJU J PANICKER** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY ITS SECERETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 THE DISTRICT COLLECTOR, KOLLAM 691 001** - **3 THE SUB DIVISIONAL MAGISTRATE, KOLLAM 691 001** - **4 THE TAHASILDAR, TALUK OFFICE, KOLLAM 691 001** - **5 THE ASSISTANT ENGINEER PWD ROADS DIVISION, CHATHANOOR, KOLLAM 691 001** - **6 THE VILLAGE OFFICER MEENAD VILLAGE, CHATHANOOR, KOLLAM 691 001.** - **7 THE SECRETARY, CHATHANOOR GRAMA PANCHAYATH,CHATHANOOR, KOLLAM 691 001.** **WP(C).No. 1234 of 2018** **-2-** **BY ADVS.** **SRI.K.V.SOHAN, STATE ATTORNEY INSTRUCTED BY SMT.K.B.SONY, GOVT. PLEADER (R1 TO R6) SRI.M.R.SASITH PANICKER FOR R-7** ## **OTHER PRESENT:** **SRI.K.V.SOHAN, STATE ATTORNEY INSTRUCTED BY SMT.K.B.SONY, GOVT. PLEADER (R1 TO R6) SRI.M.R.SASITH PANICKER FOR R-7** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **J U D G M E N T** **The petitioners who claim to be street vendors are aggrieved by the impugned decision taken by the 4[th] respondent-Tahsildar, Kollam, in taking** **eviction steps against them. The main prayers in** ## **this Writ Petition (Civil) are as follows:** _**“i. To issue a writ of certiorari calling for records relating to Ext P3 and quash the same.**_ _**ii. To issue a writ of mandamus, order or direction, directing the respondents to allow the petitioners to continue with the business and not to evict them from the places in which they are conducting the business.**_ _**iii. To issue a writ of mandamus, order or direction, directing the respondents to implement the provisions contained in the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014.”**_ **WP(C).No. 1234 of 2018** **-3-** **2. Heard Sri.Saju J.Panicker, learned counsel for the petitioners, Sri.K.V.Sohan, learned State Attorney, instructed by Smt.K.B.Soni, learned Government Pleader appearing for respondents 1 to 6 and Sri.M.R.Sasith Panicker, learned counsel appearing for the 7[th] respondent-Chathanoor Grama Panchayat.** **3. According to the petitioners, they are conducting tea vending in temporary movable carts in the area immediately adjacent to the Chathanoor Bus Stand, Kollam, within the territorial limits of the 7[th] respondent-Chathanoor Grama Panchayat, which is hardly 200 meters away from the National Highway. According to the petitioners, they are running their business for the last so many years and that they have been conducting tea vending without any obstruction to the traffic or pedestrians. It is further stated by the petitioners that the 4[th] respondent-Tahsildar has now initiated proceedings dated 21.10.2015 proposing to evict the petitioners from the** **WP(C).No. 1234 of 2018** **-4-** **present location by invoking powers under the Land Conservancy Act. This Court as per order dated 12.1.2018 ordered to maintain status quo, which has been extended until further orders. Petitioners have challenged the decision of the 4[th] respondent-Tahsildar taken in Ext.P-1 by filing petition before the 3[rd] respondent-Sub Divisional Magistrate, Kollam, who has rejected the same as per Ext.P-3 order dated 23.9.2017. Aggrieved thereby, the petitioners have preferred Ext.P-2 appeal/petition before the 2[nd] respondent-District Collector, Kollam ventilating their grievances. One of the contentions raised by the petitioners is that the petitioners are entitled to get protection under the provisions contained in the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (Central Act 7/2014) as well as the Scheme framed thereunder by the State Government, etc. It is urged that by virtue of the provisions contained in the proviso to Sec.3(3) of the Act, no street** **WP(C).No. 1234 of 2018** **-5-** **vendor shall be evicted or, as the case may be, relocated, till the completion of the process of survey and issuance of certificate of vending in terms of Sec.4 of the Act. Further, it is the admitted case of the petitioners that they are conducting the business within the territorial limits of the 7[th] respondent-Chathanoor Grama Panchayat. Sec.2(1)(c) of the Street Vendors Act deals with 'local authority' which is defined as follows:** _**'Sec.2: Definitions.(1) xxx xxx xxx**_ _**(c)”local authority” means a Municipal Corporation or a Municipal Council or a Nagar Panchayat, by whatever name called, or the Cantonment Board, or as the case may be, a civil area committee appointed under section 47 of the Cantonment Act, 2006 (41 of 2006) or such other body entitled to function as a local authority in any city or town to provide civic services and regulate street vending and includes the “planning authority” which regulates the land use in that city or town.'**_ **4. There cannot be any dispute that the** **Chathanoor Grama Panchayat constituted as per the provisions of the Kerala Panchayat Raj Act, 1994 cannot fulfil the definition of local authority as conceived in Sec.2(1)(c) of the Street Vendors Act, inasmuch as it is not a local authority which** **WP(C).No. 1234 of 2018** **-6-** **is functioning in urban area. Therefore, prima facie, the provisions contained in the Street Vendors Act, 2014, may not come into play, in this case. The petitioners' counsel would submit that the petitioners would undertake that they would carry street vending only in mobile carts and not in any stationary structure and that they are conducting street vending activity in a manner without causing any obstructions to the free flow of traffic and pedestrians in the area where they conduct such activity.** **5. Taking note of the fact that petitioners are prepared to conduct street vending in mobile carts without causing any obstructions to the free flow of traffic and pedestrians, it is ordered that the said plea of the petitioners should be seriously considered by the 2[nd] respondent-District Collector, Kollam. Apart from Ext.P-3 petition, the petitioners may file a comprehensive representation before the 2[nd] respondent-District** **WP(C).No. 1234 of 2018** **-7-** **Collector, ventilating their grievances and also making undertaking to contract street vending only in mobile carts without causing any obstruction to the traffic and pedestrians. Such representation should be filed by the petitioners within one month before the 2[nd] respondent-District Collector. In such eventuality, the 2[nd] respondent-District Collector will consider the plea made by the petitioners in permitting them to conduct street vending activity without causing any obstruction. Petitioners may also submit a representation before the 7[th] respondent-Chathanoor Grama Panchayat, who will also consider the same and will give a report to the 2[nd] respondent-District Collector about the request made by the petitioners in that regard. Thereafter, the 2[nd] respondent-District Collector will grant an opportunity of being heard them through their authorised representative, if any, and will take a considered decision for permission to conduct street vending in the aforesaid manner without** **WP(C).No. 1234 of 2018** **-8-** **causing any obstruction to the free flow of traffic and pedestrians and without causing any obstruction to public property. In the above process, the 2[nd] respondent-District Collector will take note of the various decision rendered by the Apex Court in cases as in** _**Gainda Ram & ors. v. M.C.D & ors.**_ **, reported in (2010) 10 SCC 715, etc., which has recognised the right of street hawkers and street vendors to conduct such activities in a manner without causing any obstructions to the public. A decision will be rendered by the 2[nd] respondent-District Collector on the above said aspects without much delay preferably within 3 months from the date of submission of such representation. Until a decision is taken by the 2[nd] respondent, the petitioners will be permitted to conduct street vending in a manner without causing any obstructions to the free flow of traffic and pedestrians and without any obstructions to the public property including puramboke land belonging to Government/Panchayat.** **WP(C).No. 1234 of 2018** **-9-** **However, it is made clear that if the petitioners does not file the representation within the time limit stipulated hereinabove, then the benefit of the direction granted in this petition will automatically stand vacated without any further orders.** **With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.** ## **Sd/-** **ALEXANDER THOMAS, JUDGE.** Bkn/- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT OT THE 1ST PETITIONER** **EXHIBIT P2 THE TRUE COPY OF THE APPEAL FILED BEFORE THE 2ND RESPONDENT BY THE 1ST PETITIONER** **EXHIBIT P3 THE TRUE COPY OF THE ORDERS PASSED BY THE 3RD RESPONDENT**