Trampling over Footpaths

In grossdisregard of its obligations under the very statute to which it owes its existence, the BMC nowadays neither constructs footpaths nor maintains them. Its justification for doing away with footpaths while building DP Roads appears to be two-fold. First, it believes that the term 8220;road8221; unlike the term 8220;street8221; is not defined in the Act and so can be argued to exclude footpaths. Its other argument is that footpaths, if constructed, are taken over by hawkers asserting their 8220;right to hawk8221; and as such do not serve the purpose. Both these arguments are fallacious. In the first place, though 8220;road8221; is not specifically defined, the definition of 8220;street8221; includes a 8220;road8221; and a road, once in public use, becomes a 8220;public street8221;. And a public street must have footways. Secondly, the BMC has not only the power but the obligation too to ensure that the user of footpaths is not obstructed.

Next comes the question of hawkers. The BMC maintains that the 8220;right to hawk8221; has been upheld by the SupremeCourt of India and as such there is little it can do to deal with the encroachers. It will therefore be worthwhile to examine what exactly has been said by the Supreme Court SC in respect of hawkers in Mumbai.

In the case of Bombay Hawkers8217; Union 1985 the SC observed that 8220;some of the streets in Bombay are so incredibly flooded with merchandise sold by hawkers that it is impossible for the pedestrians to walk on those streets.8221; It further added that 8220;no one has any right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public.8221; Thus, the Supreme Court has, in fact, upon a petition by the hawkers upheld the right of walkers!

In the same case BMC projected itself before the Supreme Court as the protector of the public interest. The Supreme Court therefore, in its order, inter-alia realised upon the following statements made by the then municipal commissioner:

quot;As per the provisions of Section 610 of the Bombay MunicipalCorporation Act, the removal of obstructions and projections in or upon streets, bridges and other public places is an obligatory duty of the corporation.8221;

8220;The roads leading from suburban railway stations to the residential areas in the suburbs or the roads in the Central Business District in South Bombay connecting the suburban railway stations with the offices and other places of work as also certain arterial roads on which major goods and transport vehicles move, could be considered as important roads and pavements where no hawkers should be allowed to do their business.8221;

8220;We could identify in each Ward the streets/areas where intensive removal action against unauthorised hawkers should be taken. This shall not, however, mean that hawking in other areas will be freely permitted8230;if hawkers do their hawking business without seriously affecting the vehicular and/or pedestrian traffic or causing nuisance, they may be tolerated by sufferance and a daily fee8230;without prejudice to our right to removethem should the changed circumstances so demand in future.8221;

The Supreme Court in its order dated July 3, 1985 approved a composite scheme prepared by the Municipal Commissioner and directed the BMC to frame it 8220;as far as possible8221; before 31.10.1985. The conditions of the Scheme as approved by the Supreme Court in the Bombay Hawkers Union8217; case are as follows:

Hawkers should do their hawking business only on an area of 1 Mt. x 1 Mt. on the footpath wherever it exists or on the extreme sides of the carriage way, in such a manner that the vehicular and pedestrian traffic is not obstructed and access to shops and residences is not blocked.

Hawkers should not put up any stall or place any table, stand or such other thing or erect any type of structure on the pitch on which they are conducting their business nor should they hawk on handcarts.

Hawkers should not hawk within 100 metres of any place of worship, educational institution or general hospital and within 150 metres of any Municipal or othermarket.

Hawkers should do their business only between 7 am and 10 pm on the day on which the prescribed daily fee is recovered.

The daily fee charged will not confer upon the hawker the right to do his business at any particular place.

One only has to take a look around Mumbai City to realise that the BMC took the Supreme Court for a royal ride. Instead of getting rid of hawkers who obstruct footpaths, the BMC has got rid of the footpaths.

The Supreme Court had also directed the BMC to have 8220;one hawking zone for every two contiguous municipal wards in Greater Bombay8221;. Other zones known as 8220;non-hawking zones8221; were to be fixed by the municipal commissioner and he was given the right to extend the limit of these zones from time to time in the interests of public health, sanitation, safety and public convenience. The Supreme Court had also directed that any future alteration in the scheme approved by it could be done only by taking into confidence all public interests, including the hawkers, theCommissioner of Police and citizens associations.

It was clear that the Court delivered its judgment by treating the public interest as paramount. Chief Justice Y V Chandrachud, who delivered the judgment also brought his personal knowledge of city life in Mumbai to bear upon the decision. Had the BMC implemented the direction in good faith, our Mumbai would have been a much better city today.

But all is not lost. We, as citizens have a right to know what the BMC has done during the past decade to implement the Supreme Court8217;s directions. Citizens groups in every ward must demand copies of the 8220;hawking and non-hawking zones8221; from the respective ward offices. They must insist on having copies of the 8220;hawkers8217; scheme8221;. They must find out how far such a scheme and the zoning done thereunder is in consonance with the scheme approved by the Supreme Court. If the scheme has been altered, citizens must try to find out who was consulted prior to such alterations. If we citizens pull up our socks, the BMC canbe pulled up in Court. The Courts only help those who help themselves.

The writer is an advocate with the Bombay High Court