Holding

The right to carry on trade under Article 19(1)(g) is a fundamental right but does not confer a right to occupy a particular place on public streets; such occupation is subject to reasonable regulation under Article 19(6) and the relevant municipal statutes.

Summary

The petitioners, a group of hawkers, claimed a constitutional right under Article 19(1)(g) to occupy specific spots on Delhi's public pavements for street trading, alleging that the municipal authorities' refusal violated their rights under Articles 19 and 21. The respondents argued that no exclusive right to occupy particular pavement areas exists and that streets are meant solely for public passage. The Supreme Court held that while the right to trade is a fundamental right, it does not include a right to a particular place on public streets; such occupation is subject to reasonable regulation under Article 19(6) and the Delhi Municipal Corporation Act, 1957 and Punjab Municipal Act, 1911. The Court rejected the petitioners' claim to a permanent, exclusive right, distinguished the case from Olga Tellis, and noted that Article 21 does not apply. It directed the municipal authorities to frame detailed schemes for regulation and remitted the matters to the appropriate Division Bench for final disposal.

Issues considered

The extent of the right to trade under Article 19(1)(g) with respect to occupying specific places on public streets.
Whether Article 21 (right to life) is attracted in cases of street trading.
The scope of reasonable restrictions under Article 19(6) and the powers of municipal authorities under the Delhi Municipal Corporation Act, 1957 and Punjab Municipal Act, 1911.
Whether municipal bodies can deny hawkers the right to occupy particular pavement areas and the need for a regulatory scheme.
The applicability of precedents such as Olga Tellis and Pyare Lal to the present facts.

Legislation cited

Delhi Control of Vehicular and other Traffic on Roads and Streets Regulation, 1980
Delhi Municipal Corporation Act, 1957s. 173, s. 188
Delhi Police Act
Punjab Municipal Act, 1911s. 173, s. 188

Subjects

street tradingfundamental rightArticle 19(1)(g)Article 21municipal regulationpublic streetshawkersreasonable restrictionpavement occupationpublic nuisance

Judgment

I
. .\
A SODAN SINGH ETC. ETC.
v.
NEW DELHI MUNICIPAL COMMITTEE & ANR. ETC. '1

/;..;
AUGUST 30, 1989 ,.. \"-'

B [E.S. VENKATARAMIAH, CJ., S. NATARAJAN, LAUT
MOHAN SHARMA, N.D. OJHA AND KULDIP SINGH, JJ.J

Constitution of India, 1950: Article 19( 1)(g)-Street trading- •
An age old vocation adopted by human beings to earn living-No "'\
justification to deny citizens right to earn livelihood using public streets
c for trade or business-Regulatory measures and reasonable restrictions ~
can be imposed.

Delhi Municipal Corporation Act, 1957: Street trading-Neces-
sity to provide regulatory measures-Emphasised.
D Punjab Municipal Act, 1911: Street trading-Necessity to provide
regulatory measures-Emphasised.
~·
The petitioners in these special leave petitions and writ petitions
claim the right to engage in trading business on the pavements of roads
of the city of Delhi. The special leave petitions are against the judgments
E of the Delhi High Court dismissing their claim.
>-
It is contended on behalf of the petitioners that (i) they were
allowed by the respondents to transact their bnsiness by occnpying a
particular area on the pavements on payment of certain charges ~·
described as Tehbazari and the refusal by the municipal authorities to
F permit them to continue with their trade is violative of their funda-
mental right guaranteed under Article 19(l)(g) of the Constitution; and
(ii) the petitioners are poor people and depend on their business for
their livelihood and if they are not allowed to occupy some specific
places demarcated on the pavements on a permanent basis for conduct-
ing their business they may starve which will lead to violation of their
G fundamental right under Article 21 of the Constitution.
-'\
The respondents, on the other hand, contend that nobody bas got
a legal right to occupy exclusively a particular area on the road-pave-
ment for pursuing a trading business and nobody can claim any funda-
mental right in this regard whatsoever.
H

1038
SODAN SINGH v. N.D.M.C. 1039

Disposing of the petitions and remitting the cases to the appro- A
priate Division Bench for final disposal in accordance with this judg-
ment, this Court,

HELD: E.S. Venkataramiah, CJ, S. Natarajan, L.M. Sharma
and N.D. Ojha ,JJ.]
B
Per L.M. Sharma, J.

(1) A member of the public is entitled to legitimate user of the
road ·other than actually passing or re-passing through it, provided
that he does not create an unreasonable obstruction which may in-
convenience other persons having ·similar right to pass and does not C
make excessive use of the road to the prejudice of the others. Liberty
of an individual comes to an end where the liberty of another
commences. [IOSOC, A-Bl

(2) What will constitute public nuisance and what can be included ·
in the legitimate user can be ascertained only by taking into account all D
the relevant circumstances including the size of the road, the amount of
traffic and the nature of the additional use one wants to make of the
public streets. This has to be judged objectively and here comes the role
of public authorities. [IOSJE)

(3) The right to carry on trade or business mentioned in Article E
19(l)(g) of the Constitution, on street pavements, if properly regulated,
cannot be denied on the ground that the streets are meant exclusively
for passing or re-passing and for no other use. Proper regulation is,
however, a necessary condition as otherwise the very object of laying
out roads--to facilitate traffic-may be defeated. Allowing the right to
trade without appropriate control is likely to lead to unhealthy competi- F
tion and quarrel between traders and travelliui; public and sometimes
amongst the traders themselves resulting in chaos. The right is subject
to reasonable restrictions under clause (6) of Article 19. [1052C-D)

(4) The proposition that all public streets and roads in India vest
in the State but that the,,State holds them as trustee on behalf of the G
public and the member{of the public are entitled as beneficiaries to use
them as a matter of right, and that this right is limited only by the
similar rights possessed by every other citizens to use the pathways and
further that the State as trustee is entitled to impose all necessary limi-
tations on the character and extent of the user, should be treated as of
r universal application. The provisions of the Municipal Acts should be H
1040 SUPREME COURT REPORTS [1989] 3 S.C.R.

construed in the light of the above proposition and they should receive a ~
A beneficent interpretation. [1052E-G]

M.A. Pal Mohd. v. R.K. Sadarangarii, A.LR. (1985) Mad 23;
C.S.S. Motor Service v. Madras State, A.LR. 1953 Mad. 279; Saghir
Ahmad v. The State of U.P. & Ors., [1955] l SCR 707; Harper v. G.N.
B Haden & Sons Ltd., [1933] l Ch. 298; Bombay Hawkers Union & Ors.
v. Bombay Municipal Corporation & Ors., [1985] 3 SCR 528 referred
to.

(5) The petitioners do have the fundamental right to carry on a
trade or business of their choice, but not to do so on a particular place, ,.
as circumstances are likely to change from time to time. Bnt that does
c not mean that the licence has to be granted on a daily basis; that 1
arrangement cannot be convenient to anybody, except in special
circumstances. [1053F, 1057F]

Fertilizer Corporation Kamgar Union v. Union of India, [1981] 2
D SCR 52; K. Rajendran v. State of Tamil Nadu, [1982] 3 SCR 628,
referred to.

(6) Article 21 is not attracted in the case of trade or business-
either big or small. The right to carry on any trade or business and the j-
concept of life and personal liberty within Article 21 are too remote to
E be connected together. [J054G]

Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors.,
[1985] 3 sec 545, distinguished.

(7) The provisions of the Delhi Municipal Corporation Act, 1957,
are clear and the Municipal Corporation of Delhi has full authority to
t"
F
permit hawkers and squatters on the side walks where they consider it
practical and convenient. [J052G-H]

(8) The provisions of the Punjab Municipal Act, 1911, as applic-
able to New Delhi area, should receive a liberal construction so that the
G New Delhi Municipal Committee may be in a position to exercise full
authority to permit hawkers and squatters on pavements in certain
areas. [ J053A-C] ·-\.
Pyarelal v. N.D. M.C., [1967] 3 SCR 747 overruled.

(9) A scheme should be drawn up as soon as possible containing
·~
H
SODAN SINGH v. N.D.M.C. 1041

f detailed necessary provisions dealing with all relevant aspects, and cap- A
able of solving the problems arising ip the situation in a fair and equit,
able manner. [I057B-C]

(10) The demand of the petitioners that hawkers must be permit-
led on ~very road in the city cannot be allowed. If a road is not wide
i enough to conveniently manage the traffic on it, no hawking may be B
permitted at all, or may be sanctioned only once a week, say on Sundays
when the rush considerably thins out. Hawking may also be justifiably
prohibited near hospitals or where necessity of security measures so
r
demands. There may still be other circumstances justifying refusal to
t'" permit any kind of business on a particular road. [1057E]

'-;- (ll) Some of the llawkers ip big cities are selling very costly
c
luxury articles including sophisticated electronic goods, sometimes
imported or smuggled. The authorities will be fully justified ~o deny to
such hawkers any facility, They may frame rules in such manner that it
may benefit only the poor hawkers incapable of investing a substantial
amount for starting the business. Attempt should be made to make the D
scheme comprehensive, dealing with every relevant aspect, for exam-
pie, the charges to be levied, the procedure for grant and revocation of
the licences, etc. [I057H-1058B]
-{
Per Ku/dip Singh, J.
E
(1) The guarantee under Article I9(1)(g) extends to practice any
profession, or to carry on any occupation, trade or business. The object
""' of using four analogous and overlapping words in Article 19(l)(g) is to
make the guaranteed right as comprehensjve as possible to jnclulje all
' ,.., the avenues and modes through which a man may earn his livelihood. In
a out-shell the guarantee takes into its fold any activity carried on by a F
citizen of India to earn his living. The activity must of course be legiti-
mate and no anti-social like gambling, trafficking in women and the
like. [i058H-1059C]

(2) Once street-trading is accepted as legitimate trade, business
I .,.. or occupation it automatically comes within the protection guaranteed
under Article 19(1)(g) of the Constitutionoflndia. [I062E]
G

'

~
(3) Street trading is an age-old vocation adopted by human beings
to earn living. It is one of the traditionally recognised business or trade
in England. This is so in spite of the fact that there is a comp!<# social
security in that country and as such no compulsion on the citize_ns to be H
1042 SUPREME COURT REPORTS [1989] 3 S.C.R.
.;._
driven to street trading out of poverty or unemployment. On the
A
other band, abysmal poverty in India warrants outright rejection
of the argument that nobody has a right to engage himself in 'street
trading'. [I059D, 1062A·Bl

(4) There is no justification to deny the citizens of their right to
B earn livelihood by using the public streets for the purpose of trade and """
business. [l063B]

Saghir Ahmad v. The State of U.P. & Ors., [1955] 1 SCR 707; .,__
.
Manjur Hasan v. Mohammed Zaman, 52 I.A. 61; Himat Lal K. Shah v.
"I\
Commissioner of Police Ahmedabad & Anr., [1973] 2 SCR 266, refer-
red to.
c i
(5) Street trading being a fundamental right has to be made avail·
able to the citizens subject to Article 19(6) of the constitution. It is
within the domain of the State to make any law imposing reasonable
restrictions in the interest of general public. This can be done by an
D enactment on the same lines as in England or by any other law permissi-
hie under Article 19(6) of the Constitution. [1064B]

Bombay Hawkers Union & Ors. v. Bombay Municipal Corpora-
tion & Ors., [1985] 3 SCR 528; Municipal Corporation of Delhi v.
Gurnam Kaur, A.I.R. 1989 S.C. 38, referred to.
E
(6) The skeletal provisions in the Delhi Municipal Corporation
Act, 1957 and the Punjab Municipal Act, 1911 can hardly provide any
regulatory measures to the enormous and complicated problems of
street trading in these areas. [l 063D]

p CIVIL APPELLATE/ORIGINAL JURISDICTION: Special
Leave Petition (C) No. 15257 of 1987. etc. etc.

From the Judgment and Order dated 23.4.1987 of the Delhi High
Court in CMP No. 268 of 1987.

G V.M. Tarkunde, D.D. Thakur, Govinda Mukhoty, A.P. Singh,
K.N. Rai, S. Balakrishnan, R.N. Keswani, R.F. Nariman, P.H.
Parekh, D.Y. Chanderchud, J.P. Pathak, Shishir Shar_ma, Ms. Gitan-
jali, Mrs. Biraj Tiwari, Ms. Sunita Sharma, N.K. Sahoo, Arun Jaitley,
Ms. Bina Gupta, Ms. Madhu Khatri, L.K. Gupta, R.C. Kaushik,
Rajiv Sharma, B.S. Bali, M.C. Dhingra, A.S. Bawa, V.K. Verma.,
H Kirpal Singh, A.S. Pundir, S. Srinivasan, Mrs. Sushadra, B.B.
SODAN SINGH v. N.D.M.C. (SHARMA, l.] 1043

Tawakley, S.K. Mehta, Dhruv Mehta, Atul Nanda, Ms. Mridula Ray, A
R.M. Tewari, Ms. Rani Jethmalani, Ajit Singh Bawa and Vi jay Verma
for the Petitioners.

G. Ramaswamy, Additional Solicitor General, R.B. Datar, O.P.
Sharma, Dr. L.M. Singhvi, A.K. Sen, Ranjit Kumar, R.C. Gubrele,
R.K. Maheshwari, Mensoor Ali, A.M. Singhvi, D. Bhandari, N. B
Waziri, Mrs. Madhu Bhandari, K.B. Rohtagi, S.K. Dhingra, Baldev
Atreya, S.B. Saharya, V.B. Saharya, K.R. Gupta, R.K. Sharma,
Vimal Sharda, Vivek Sharda, Mrs. Nanita Sharma, Aruneshwar
~ Gupta, Inderbir Singh Alag and Sushi! Kumar for the Respondents.

Mrs. Sushma Suri, B.B. Sawhney, P.K. Manohar, Mrs. Indra C
Sawhney, Mrs. Abba Jain, P.K. Jain, S.S. Hussain, Amlan Ghosh,
Jitendra Sharma, R.D. Upadhyay, Y.K. Jain, D.D. Sharma, Rajesh,
Naresh Kabkshi, Mrs. Urmila Kapur, M.M. Kashyap, Anis Ahmad
Khan, Manjeet Chawla, S.N. Bhatt, N. Ganpathy, P. Parmeshwaran,
A.S. Pundir, Pandey Associate, Arnn K. Sinha, M.B. Lal, A.K.
Sanghi and S.M. Ashri for the appearing parties. D

The following Judgments of the Court were delivered:

SHARMA, J. The petitioners in all these cases claim the right to
engage in trading bµsiness on the pavements of roads of the city of
Delhi. They have asserted that they have been pursuing their trade E
with the permission of the municipal authorities for some time, but
recently there has been illegal interference by them. Some of the
petitioners have moved this Court under Article 32 of the Constitution
and others impugn adverse judgments of the Delhi High Court dismis-
sing their claim.
F
2. As the petitioners have challenged the correctness of the deci-
sion of a Division Bench of this Court in Pyarela/ v. N.D.M.C and
another, (1967) 3 SCR page 747, these cases were placed for hearing
before a larger Bench.

3. The petitioners, in their applications before this Court, have G
alleged. _that they were allowed by the respondents to transact their
business by occupying a particular area on the pavements, on payment
of certain charges described as Tehbazar.i. It is contended that the
municipal authorities by their refusal to permit the petitioners to con-
tinue with their trade are violating their fundamental right guaranteed
under Article 19(1)(g) and 21 of the Constitution. They have also H
1044 SUPREME COURT REPORTS [1989) 3 S.C.R.

complained of ma/a fides, arbitrariness and discriminatory conduct ).
A
attracting Article 14 of the Constitution.

4. The respondents, besides denying the facts alleged by the
petitioners, contended that nobody has got a legal right to occupy
exclusively a particular area on the road-pavements for pursuing a
B trading business, and nobody can claim any fundamental right in this
regard whatsoever. It has been strenuously urged that the roads are
meant for the use of general public for passing and re-passing and they

c
are not laid to facilitate the carrying on of private business.

5. The main argument on behalf of the petitioners was addressed
by Mr. Tarkunde, who appeared for petitioner Sodan Singh in S.LP.
1'\ -
No. 15257 of 1987. Several learned advocates representing the other
~
petitioners, besides adopting the main argument, made brief supple-
mentary submissions. The place where petitioner Sodan Singh claims
to have the right to squat for soiling ready-made garments is within
New Delhi. Several other petitioners have similar claims against the
D New Delhi Municipal Committee. The remaining petitioners allege
that they have been pursuing their squatting business within Delhi, as
defined in the Delhi Municipal Corporation Act, which is adminis-
tered by the respondent Municipal Corporation of Delhi. Separate
arguments have been made on behalf of the New Delhi Municipal }
Committee and the Municipal Corporation of Delhi.
E
6. Mr. Tarkunde urged that petitioner Sodan Singh is a poor
hawker making his both ends meet by selling ready-made garments on »
an area of 8' x 24' near Electric Pole No. 12, Janpath Lane,New Delhi
as illustrated in the attached map Annexure-'A' to the petition.
Earlier he was permitted to hawk from time to time by the respondent ~-
F under licences as per Annexure 'A-2', but now the privilege is being
,denied to him and his goods were removed forcibly from the pavement
and were later released only on payment of cost of removal charges. In
the counter affidavit of the respondent the allegations have been
denied and it has been pointed out that the photo copy of the licence
Annexure 'A-2' itself shows that the petitioner was permitted to sell
G 'Channa' and 'Moongphali' on a 'Vehngi' on and around Bus-stop No.
430 on Pt. Pant Marg; and he was at no point of time allowed to occupy
a fixed place for carrying on business in ready-made garments. We do
not propose to go into the facts of this or the other petitions and would
leave the individual cases to be dealt with by the Division Bench in the ~
light of the general principle which will be discussed in this judgment.
H
SODAN SINGH v. N.D.M.C: [SHARMA, J.] 1045

7. The Municipal Corporation of Delhi was established by a A
notification issued under s. 3 of the Delhi Municipal Corporaiiori Aci,
1957, and ihe provisions of that Act are relevant for the majority of the
present cases. The other cases relate to ihe other areas fofiniii.g part of
the Union Territory of Delhi governed by the provisions of the Punjab
Municipal Act, 1911. However, ihe main submissions iri aii ihese cases
made on behalf of both sides have been with respeci ill the general B
pririeiples applicable in India about the right to carry on business by
squatting on pavements of public Streets.

8. Mr. Tarkunde contended that the peiiiioi.iers afe poof peopie
arid depend on their business for their livelihood. if. they ate iiti!
allowed tb occupy some specific plilce for conductillg their biisiiiess; G
tbey may starve. this will lead to violatitiri of their fiillclahieiiiai fight
tillder Article 21 of the tohstitution, Reliance was placed ori the ded-
sioh iii Olga Tellis and i:>thers v. Bombay Municipal Corporation and
others, [1985] 3 sec 545. the learned counsel further said that the two
respondents have been in the past allowing squatter traders on the
pavements on payment of Tehbazari charges. He drew our attention tb D
the counter affidavit of the respondent in S.L.P. Nos. 4519-23 of 1986
at riage 146 where a resolution by the New Delhi Municipal Committee
has- been mentioned ih paragraph Iil. In the case of Delhi Municipal
Corporation also several documents have been relied upon for show-
ing that specific areas have been allowed to be occupied for the
purpose of trading business from time to time. The learned counsel E
argued that since the two municipalities have been settling specific
areas for the purpose of· squatting, it is not open to them to deny
squatting rights to the petitioners and other persons situated in similar
circumstarices.

9. In Pyare Lal etc. v. N.D.M.C., [1967] 3 SCR 747 the New F
Delhi Municipal Committee banned the sale of cooked edibles on
public streets, and prevented the petitioners, licensed vendors of
potato chops and other edibles, from continuing with their business.
After u~Sticcessfully moving the Punjab High Court, they came to thiS
Court. The appeals were dismissed holding that persons in Ihdia can-
not claim a lawful right to pursue street trading, and the N,D.M.C. b
was perfectly authorised to take steps under s. 173 of the Punjab
Municipal Act for stopping the business. It was also obserVed that the
N .D .M .C. was not empowered under ihe Act to aliow trade oh pUlilic
streets on a permanent basis and that permission for sale of goods
could be granted only on special occasions on temporary basis as in ihe
case of festivals etc. Reliance had been placed on behalf of the H
1046 SUPREME COURT REPORTS [1989] 3 S.C.R.

A
petitioners on certain passages from Halsbury's Laws of England, --""
which the Court distinguished on the ground that street trading was
regulated by certain statutes in England, and there were no such provi-
sions applicable in the cases before this Court. The right to pursue
street trading in India was thus negatived. Mr. Tarkunde contended
that it is not correct to deny the members of the public their right to
B engage in business on the public streets in the country. He said that ~
this is one of the fundamental rights guaranteed both, under Article
19( l)(g) and Article 21. According to the learned counsel, the practice
of the street trading is well established for a considerable time in all the
civilised countries of the world including India, England and United
States of America. Refuting the suggestion made on behalf of the
respondents that it was only a hawker who sells his goods while moving
~
-
c from door to door and place to place who is allowed on the public
streets, Mr. Tarkunde referred to Halsbury's Laws of England,
Vol. 40, paragraphs 431 to 446 under the heading 'Street Trading in
""'
Greater London'. It was suggested that the right of the members of the
public in this regard was founded on the common law right. The
D learned counsel further relied on the third paragraph of s. 253 of the
Chapter 'Highways, Streets, and Bridges' of 39 American Jurispru-
dence (2nd Edition) which reads as follows:

"A municipality's power to regulate the use of streets for
}
private gain is to be liberally construed. The purpose of
E such regulations is to promote public safety, and not to
regulate and control indirectly the user's business as such.
There is no authority in a municipality to prohibit the use
of the street by any citizen or corporation in the carrying on
of a legitimate business, harmless in itself and useful to the
community, which is independent of the police power
F under which reasonable regulations in the promotion of the
f
public order, safety, health, and welfare are proper."

10. In his reply Mr. Singhvi, the learned counsel for N.D.M.C.
pointed out that the first two paragraphs of the aforementioned s. 253
which are quoted below negative the right asserted on behalf of the
G petitioners and paragraph 3 mentioned above has to be read in that
light.
~
"S. 253. Business purposes:

Individuals do not have the inherent right to conduct
H their private business in the streets, nor can they acquire a
SODAN SINGH v. N.D.M.C. [SHARMA, J.] 1047

vested right to use the streets for carrying on a commercial
A
business. However, individuals do have the right to use the
streets to some extent for the purpose of bartering or trad-
ing with each other, or for prosecuting a business, trade, or
calling, although they cannot legally carry on any part of
their business in the public streets to the annoyance of the
public, or supply the deficiencies in their own premises by B
monopolizing the street or walk.

The use of public streets as a place for the prosecu-
tion of a private business for gain is generally recognised as
a special or extraordinary use which the controlling public
authority may prohibit or regulate as it deems proper.
When a municipality does permit private individuals to c
have exclusive possession of the street surface for a private
business use, such permit is so unusual, and beyond the
ordinary authority and power of a municipality, that it may
not issue such a permit in the absence of special enabling
state legislation. Assuming that such power exists, the D
granting of permission to a private person to so use the
streets is totally within the discretion of the municipality."

-{_ The learned counsel contended that the grant of exclusive right to
occupy any part of the road amounts to the negation of the Common
Law theory of dedication of a road for public use. E

11. Reference was also made on behalf of the petitioners to the
judgment in M.A. Pal Mohd. v. R.K. Sadarangani, A.LR. 1985
Madras 23, wherein it was observed that hawker trade so long as it is
proper! y regulated by public authorities could never be a public ·
nuisance; rather it serves the convenience of the public. and is found F
not only in India but also in other countries.

12. The question of applicability of the El)glish and American
laws on the present aspect was considered by a Division Bench of the
Madras High Court in C.S.S. Motor Service v. Madras State; A.LR.
1953 Madras 279 and the decision was later approved by this Court in G
Saghir Ahmad v. The State of U.P. and others, [1955] 1 SCR 707. After
a thorough consideration of the relevant materials Venkatarama
Aiyar, J, who delivered the judgment pointed out some of the basic
differences in the law of this country on the present subject from the
American and English laws, which render the American decisions
inapplicable on certain aspects. The right to carry on business, H
1048 SUPREME COURT REPORTS [ 1989] 3 S.C.R.

although recognised as one of the liberties protected by the American ~
A
Constitution, did not acquire the full status of the freedoms expressly
mentioned in the Constitution, such as, the freedom of speech, of
person, and of religion; and was viewed somewhat i11 the light of an
interloper or parvenu among them. The freedoms expressly mentioned
in the American Constitution occupy an exalted position which was
B denied to the unexpressed freedoms including the right to carry on
'r
business. Under the Indian Constitution this right is one of the free·
doms expressly protected under Article 19( l)(g) and is placed on the
same tbdiing as freedom bf speech, etc. Further only some trades
could be t:ilri'ied on by the American citizens as a matter of right and
the otliers including the transport business dn public roads only if the :i.
--
c State perfuiited. The learned Judge observed that this is called a
'franchise; bf a 'privilege' and has an English origin. That is riot the -<(
case in this cdilri!ry; inasrrillch as Article 19(1)(g) does not make any
distinction frorri trade to trade. So far Englarid is concerned, the rights
of citizens to public pathways originated in feudal times when the lands
were owned by individuais. The public highways generally pass
D through these larids and since the citizens were using these roads the
law inferred a dedication of the pathways by the owners for user by the
public; but the extent of this user was limited to the passing and
re-passing on the road. The position in India has always remained
somewhat different and has been summarized in paragraph 24 of the >-
judgment of Venkatarama Aiyar J., in the following terms, which has
E been quoted with appro~ by this Court in Saghir Ahmad's case.

"The true position then is that all public streets and
roads vest in the State but that the State holds them as
trustee on behalf of the ·public. The members of the public
are entitled as beneficiaries to use them as a matter of right ~
and this right is limited only by the similar rights possessed
by every other citizen to use the pathways. The State as
trustees on behalf of the public is entitled to impose all such
limitations on the character and extent of the user as may
be requisite for protecting the rights of the public gener-
ally. Thus the nature of the road may be such that it may
not be suitable for heavy traffic and it will be within the
competence of the legislature to limit the use of the streets ..1.
to vehicles which do not exceed specified size or weight. ·-.:
Such regulations have been held to be valid as within the
police power of the State in America. Vide 'Morris v.
Budy', [1927] 71 Law Ed. 968, Sproles v. Bindfo~d', [19321
H 76 Law Ed. 1167, and-' South Carolina State v. Barnwell
'''l:i!

SODAN SINGH v. N.D.M.C. [SHARMA, J.] 1049

Bros.' I 1938] 82 Law Ed. 734. For the same reason the
A
State might even prohibit the running of transport buses
and lorries on particular streets or roads if such running
would interfere with the rights of pedestrians to pass and
re-pass as it might if the street is narrow or conjested but
~
""1 subject to such limitations the right of a citizen to carry on
business in transport vehicles on public pathways cannot be B
denied to him on the ground that the State owns the
highways."
r.,,.,
13. Mr. Singh vi is correct in pointing out that the passages of the
f American and English laws, as relied upon on behalf of the peti-·
tioners, do not establish their right to carry on trading business on
).
public streets, but for that reason their claim cannot be rejected either.
c
The question requires to be examined further. The observations in the
judgment of Venkatarama Aiyer, J. quoted above primafacie support
;:;,1
the petitioners. They received express approval of this Court in Saghir
Ahmad's case, but there is an important distillction between those
cases and the present matter which cannot be ignored. In both the D
above cases the petitioners were claiming the right to ply transport
vehicles for hire on public streets; in other words, they wanted to use
-{ the roads for transport, for which the roads were primarily laid out and
while so doing attempted to earn money. In the present cases before us
the petitioners are desirous of conducting their trade business by sale
of goods on the roads from stationary points; they do not want to make E
use of the roads for movement of persons or goods. The question is
~
whether this makes a material difference.

14. The primary object of building roads is undoubtedly to facili-
.... tate people to travel from one point to another. Quoting several
authorities Byron K. Elliott and William F. Elliott in their treatise on F
the Law of Roads and Streets have defined a street as a road or public
way in a city, town or village. A way over land set apart for public
travel in a town or city is a street, no matter by what name it may be
called. If a way is free to all people it is a highway. P. Duraisw.ami
Aiyangar in his book dealing with the Law of Municipal Corporation
in British India (1914 Edn.) has observed that the primary and G
paramount use of the street is public travel for man, beast and carriage
t' for goods. On behalf of the respondents reliance has been placed on
the oft-repeated adage that public have a right of passing and re-
passing through a street but have no right "to be on it", which Sri
Aiyangar also has mentioned at page 542 of his book. Halsbury, relied
upon by both sides, has stated (Vol. 21 paragraph 107) that the right of H
• 1050 SUPREME COURT REPORTS (1989) 3 S.C.R .

A the public i~ ll tjzht to pass alone a highway for the purpose of
legitimate tra,v.,1, not tq 1,>c: qn it, except so far as the public's pr.,sence
is atttjbutable to a reasonable and proper user of the highway as such.
These statements certaioly do not mean that a traveller has to be in
pew~tuitl moticiii. ;hen lie is in ·a pubii(!stie.,i. Ii may be "ss~ntial for
liim, to s\op somc:~e for various reasons~he may have to l!light fro,m,
~ ll y~liicle or pick up a ftjend, ~o)\ect certain articles or tmload goods o!
illls to ta,ke some ·rest aiter a long anc! ~!renuo\ls iq\l!f!ey, WJ!a~ is,
required of him is that he should not create an unreasonable obstruc-·
.tion which may inconvenience other persons having similar right to
piiss; he, should not make: excc:ssiye use of the road to the l'rejudic" qf
tl\C: ()th<!~: ~b<!nY ()fan indivi<!lllll ~1:11<!S to~ c:nc! ~her<! th<! lil,>"nY
of another commences. Subject to this, a member of the public is
t::: ~nthied to legitimate "user of the roa"d "other than ~~tualiy pas;.lng or
ii:-iiassing through it. · · · · · · · · ·· ·· · · · · ··

15. It has been sometimes argued that since a person is entitled
to the user.of every part of a publi_c street, he cannot be deprived of the
P, ijj~. o(any p0rtion thereof by puiti.llg up of any obstruction. This
propo,sition \n its <!J<t!<!111C: f<?rtll cannot be accepted without subjecting
it \g ~<!yeral restri~!\()!'~: A simiJllr argum<!i;tt ~as pr.,ssec! bef()re the
M~'.!E!§ Higli _C()\l!l in the ~ase qf MA, Pill },;fo~d_. y'. l<,I(
$afil1fllJlgani, (supra) 1,>a,sec! on the proyisions of the Mad!as pty
Mllajcipa~ <;":()rpoia.tion A~t, \919, and was rightly repelled by pointing
E. em. \hat sii;i<:e:. the pay"111c:nt is also included within the expression
·~~rec:t', a member of the public relying upon the aforesaid p~oposition
• can insist on his right to walk over a flower-bed or structure erected by
~11~· "public authorities for regulating traffic which will be wholly
· unpractical. The authorities are duty bound to locate post boxes, fire
.• hydrants with water tanks, milk booths, bus or jutka stands, rubbish
· f-. bine etc., in appropriate places in a public street and it would be
l?reposterous to hold that this cannot be done as somebody may insist
on keeping every inch of the street available for aCtual passage.
Winfield and Jolowicz in their book on Tort (12th Edn.) have said that
nuisance may be defined, wit'i reference to highways, as any wrongful
act or omission upon or near a highW°ay, whereby the public are pre-
a· vented from freely, safely, and conveniently passing along the highway
and that the law requires of users of the highway a certaio amount of
. , . . "give and take". The case of Harper v. G.N. Maden and Sons,
Limited, [1933) 1 Ch. 298 illustrates this point. The defendants there
who had their house abutting the road decided to add another floor to
their existing premises. Before starting construction they erected
Ii "s~ffol~~g" resting on the footpath, and vut up a wooden hoarding
SODAN SINGH v. N.D.M.C. [SHARMA, J.] 1051
~ next door to the plaintiff's shop for the purpose of enclosing a space to
be used, during the alterations to their building, for depositing bricks A
and other materials. In an action by the plaintiff, for injunction and
damages, the trial Judge held that although the scaffolding and hoara'
ing were reasonably necessary for the coiislructloi\ aii<i they tliti iibi
t.:i cause any greater obstruction or remaiii fof any ionger period thai\ was
~ reasonably necessary, the obstruction was illegal and ihat the plaintiff ii
~J
was entitled to damages. On appeai ihe jutlgmeili was reversed i:ioltl'
~. ing that the obstruction tO the highway arid io the enjoyment by the
_::,,.,
plaintiff of his adjoining premises being of temporary character and
being reasonable in quantum and in duration did not give rise to a legal
~ f remedy. It was very well said that:
•
4 ). "The law relating to the user of highways is in truth the
(

law of give and take. Those who use them must in doing so
have reasonable regard to the convenience and comfort of
;r·
others, and must not themselves expect a degree of ccin-
venience and comfort only obtainable by disregarding that
of other people. They must expect to be obstructed occa- D
sionally. It is the price they pay for the privilege of
obstructing others."

'·
--{
As to what will constitute public nuisance and what can be
included in the legitimate user can be ascertained only by taking into
account all the relevant circumstances including the size of the road, E
the amount of traffic and the nature of the additional use one wants to
~ make of the public streets. This has to be judged objectively and here
coines the role of public authorities.

16. So far as right of a hawker to transact business while going
" from place to'place is concerned, it has been admittedly recognised for
a long period. Of course, that also is subject to proper regulation in the
F

interest of general convenience of the public including health and
security considerations. What about the right to squat on the road side
for engaging in trading business? As was stated by this Court in
Bombay Hawkers Union and others v. Bombay Municipal Corporation
and others, [ 1985) 3 SCR 528, the public streets by their nomenclature G
~,.........,._ and definition are meant for the use of the general public: they are not
,,,.,,,_..~-.::..J
laid to facilitate the carrying on of private business. If hawkers were to
·-' be conceded the right claimed by them, they could hold the society to
ransom by squatting on the busy thoroughfares, thereby paralysing all
civic life. This is one side of the picture. On the other hand, if properly
regulated according to the exigency of the circumstances, the small H
1052 SUPREME COURT REPORTS [1989] 3 S.C.R.

traders on the said walks can considerably add to the comfort and ~
A convenience of general public, by making available ordinary articles of
every day use for a comparatively lesser price. An ordinary person,
not very affluent, while hurrying towards his home after day's work
can pick up these articles without going out of his way to find a regular
market. If the circumstances are appropriate and a small trader can do ·r-
B some business for personal gain on the pavement to the advantage of
the general public and without any discomfort or annoyance to the
others, we do not see any objection to his carrying on the business.
Appreciating this analogy the municipalities of different cities and
towns in the country have been allowing such traders. The right to
carry on trade or business mentioned in Article 19(l)(g) of the Con- . ....
stitution, on street pavements, if properly regulated cannot be denied
c on the ground that the streets are meant exclusively for passing or "'(
~
re-passing and for no other use. Proper regulation is, however, a '
necessary condition as otherwise the very object of laying out roads-
to facilitate traffic-may be defeated. Allowing the right to trade with-
out appropriate control is likely to lead to unhealthy competition and
D quarrel between traders and travelling public and sometimes amongst
the traders themselves resulting in chaos. The right is subject to
reasonable restrictions under clause (6) of Article 19. If the matter is
examined in this light it will appear that the principle stated in Saghir }
Ahmad's case in connection with transport business applies to the
hawkers' case also. The proposition that all public streets and roads in
E India vest in the State but that the State holds them as trustee on
behalf of the public, and the members of the public are entitled as
beneficiaries to use them as a matter of right, and that this right is
limited only by the similar rights possessed by every other citizen to
use the pathways, and further that the State as trustee is entitled to
impose all necessary limitations on the character and extent of the t"
F user, should be treated as of universal application.

17. The provisions of the Municipal Acts should be construed in
the light of the above proposition. In case of ambiguity, they should
receive a beneficial interpretation, which may enable the municipali-
ties to liberally exercise their authority both, in granting_permission to
G individuals for making other uses of the pavements, and, for removal
of any encroachment which may, in .their opinion, be constituting
-1,
undesirable obstruction to the travelling public. The provisions of the
Delhi Municipal Corporation Act, 1957, are clear and nobody disputes
before us that the Municipal Corporation of Delhi has full authority to
permit hawkers and squatters on the side walks when. they consider it
H practical and convenient. In so far the Punjab Municipal Act 1911
SODAN SINGH v. N.D.M.C. [SHARMA, J.] 1053
).._
applying to the New Delhi area is concerned, the Bench constituted by
A
three learned Judges observed in Pyare Lal's case [1967] 3 SCR 747
that the provisions did not authorise the municipality to permit stalls to
be set up in the streets except temporarily on special occasions, like
festivals, etc. and that the permission to the petitioner in that case had
-1 been wrongly granted initially. We do not agree with these observa-
tions, although it appears that in the light of the other circumstances. B
indicated in the judgment, the decision was a correct one. The provi-

..... sions of both ss. 173 and 188 should receive liberal construction, so
that the New Delhi Municipal Committee may be in a position to
exercise full authority. Indeed some of the documents on the records
f before us indicate that the Committee had been in the past act11ally
permitting hawkers and squatters on pavements in certain areas.
)- c
18. The controversy in the present cases, however, cannot be
settled by what has been said earlier. The claim of the petitioners
before us is much higher. They assert the right to occupy specific
I
I
places on road pavements alleging that they have been so doing in the
past. As has been stated earlier, the facts have been disputed and D
individual cases will be considered separately in the light of the present
judgment. The argument, however, which has been pressed on behalf
-( of the petitioners is that they have their fundamental rights guaranteed
by Articles 19 and 21 of the Constitution to occupy specific places
demarcated on the pavements on a permanent basis for running their
business. We do not think there is any question of application of E
~
k
Article 21 and we will be briefly indicating our reasons therefor later. .
•I But can there' be at all a fundamental right of a citizen to occupy a
particular place on the pavement where he can squat and engage in
trading business? We have no hesitation in answering the issue against
~ the petitioners. The petitioners do have the fundamental right to carry
l on a trade or business of their choice, but not to do so on a particular F
'' place. The position can be appreciated better in the light of two deci-
sions of this Court in Fertilizer Corporation Kam gar Union v. Union of
India, [1981] 2 SCR 52, and K. Rajendran v. State of Tamil Nadu,
[1982] 3 SCR 628 .
• 19. In the Fertilizer Corporation case the workmen of the G
~ respondent Corporation challenged the legality of the sale of certain
plants and equipments of the Sindri Fertilizer Factory inter alia on the
ground that a large number of workers would be retrenched as a result
of the s•.le. They argued that the sale would deprive them of their
fundamental right under Article 19(1)(g) to carry on their occupation
as industrial wor~ers. A Bench of five Judges of this Court rejected the H

i
1
_,:i
1054 SUPREME COURT REPORTS [1989] 3 S.C.R.

A plea holding that Article 19(1)(g) confers a broad and general right
which is available to all persons to do work of a particular kind and of
their choice, but it does not confer the right to hold a particular job or
to occupy a particular post of one's choice. The right to pursue a
calling or to carry on an occupation is not the same thing as the right to
work in a particular post. If the workers were retrenched consequent
B upon and on account of the sale it would be open to them to pursue
their rights and remedies under the labour laws. But the closure of an
establishment in which a workman for the time being was employed
· did not by itself infringe his fundamental right to carry on an occupa-
tion which is guaranteed by Article 19( l)(g). "The choice and free-
dom of the workers to work as industrial workers is not affected by the
sale. The sale may at the highest affect their locum, but it does not
C affect their locus, to work as industrial worker" This decision was
followed in K. Rajendran v. State of Tamil Nadu, which arose out of a
policy decision taken by the State of Tamil Nadu to abolish all the
posts of part-time Village Officers. An Ordinance was promulgated
for this purpose and was later replaced by an Act. Rejecting the appeal
D of the appellants this Court held that the impugned Act did not violate
Article 19(l)(g) as it did not affect the right of the incumbents of posts
to carry on any occupation of their choice, even though they may not
be able to stick on to the post which they were holding. The ratio of
these decisions apply with full force to the cases where the right to
pursue a trade or business is involved. If the opposite view is taken and
E the plea of the petitioners is allowed a chaotic situation may follow.
They may be entitled to insist that they would carry on their business
anywhere they like, either on the roads or in the government schools
or hospitals or other public buildings. They .may like to enter the
class-rooms or the patient wards or any public office to advance their
prospects. As was observed in the Bombay Hawkers case [1985] 3 SCC
F 528, they can hold the society to ransom by squatting on the busy
thoroughfare, thereby paralysing all civic life.

20. We do not find any merit in the argument founde<\on Article
21 of the Constitution. In our opinion Article 21 is not attracted in a
case of trade or business-either big or small. The right to carry on any
G trade or business and the concept of life and personal liberty within
Article 21 are too remote to be connected together. The case of Olga -f
Tellis and others v. Bombay Municipal Corporation and others, [i985]
3 sec 545, heavily relied upon on behalf of the petitioners, is clearly
distinguishable. The petitioners in that case were very poor persons
who had made pavements their homes existing in the midst of filth and
H squalor, which had to be seen to be believed. Rabid dogs in search of
S()l)AN, Sl!'l9.H v, N.D.M.C. !SHARMA, J.f 1055

sti~king meat and cats in seaq:h qf hungry rats kept them company. A
They cpoked and s!cpt where they cased, for no conveniences were
available to them. Their daughters,_ i;oming of age, bathed under the
nosy g~~~ of passers, by, µnmindfu\ of the femi!line sens~ of bash-
fu\ness. They h~d to stay on the pavements, so that they could get odd
jobs in the city. It was not a c>ise of a business of selling articles after
investing some capital, howsoe;er meagre. It is significant to note that B
the judgment in Bombay Hawkers Unwn and others v. Bombay
Municipal Corporutwn anu Utlzers, I 1985] 3 SCR 528, and that in Olga
Tellis were delivered wnhin a week, both by Y.V. Chandrachud, CJ.
and some of the counsel appearing m two cases were common, and
t_hat while dealing with the rights of the squatting hawkers in the
former case the learned Chief Justice confined the consideration of the
right under Article ,9( ,)(g) of the Constitution. Besioes, the Court in c
the Olga Tellis affirmed the validity of s. 3 i4 of the Bombay Municipal
Corporation Act on the ground that

··Removal of encroachments on the footpaths or pave-
ments over which the public has the right of passage or D
access, cannot be regarded as unreasonable, unfair or
UnJUSt.

--4.. In this connection the Court further proceeded to say,

"Footpaths or pavements are public properties which are E
intended to serve the convenience of the general public.
They are not laid for private use and indeed, their use for a
private purpose frustrates the very object for which they
are carved out from portions of public streets. The main
reason for laying out pavements is to e~5ure that the
pedestrians are able to go a~out their daily affairs with a F
reasonable measure of safety and security. That facility,
which has matured into a right of the pedestrians, cannot
be set at naught by allowing encroachments to be made on
the pavements. There is no substance in the argument
adv;mced on behalf of the petitioners that the claim of the
pavement dwellers to put up constructions on pavements G
and that of the pedestrians to make use of the pavements
for passing repassing, are competing claims and that the
former should be preferred to the latter. No one has the
right to make use of a public property for a private purpose
without the requisite authorisation and, therefore, it is
erroneous to contend that the pavement dwellers have .the 1:1
1056 SUPREME COURT REPORTS [ 1989] 3 S.C.R.

right to encroach upon pavements by constructing dwel-
A,
A lings thereon. Public streets, of which pavements form a
part, are primarily dedicated for the purpose of passage
and, even the pedestrians have but the limited right of
using pavements for the purpose of passing and repassing.
So long as a person does not transgress the limited pur-
pose for which the pavements are made, his use thereof is
r
B
legitimate and lawful. But, if a person puts any public pro-
perty to a use for which it is not intended and is not
authorised to use it, he becomes a trespasser. The common
example which is cited in some of the English cases (see,
for example, Hicknan v. Maisey,) is that if a person, while
using a highway for passage, sits down for a time to rest
.. •

c himself by the side of the road, he does not commit a -'(
trespass. But, if a person puts up a dwelling on the pave-
men!, whatever may be the economic compulsions behind
such an act, his user of the pavement would become
unauthorised."
D
It is also worth noting that assurances had been given on behalf of the
State Government in its pleading before this Court which was
repeatedly mentioned in the judgment.
>-
21. On behalf of some of the petitioners it was contended that in
E view of the inclusion of the word "socialist" in the Preamble of the
Constitution by the 42nd Amendment greater concern must be shown
to improve the condition of the poor population in the country, and
every effort should be made to allow them as much benefit as may be
possible. There cannot be any quarrel with this proposition, but that
by itself cannot remedy all the problems arising from poverty. Even \.'--..
F the Constitution as it stood originally was committed to economic
justice and welfare of the needy. But for that reason either then or now
the other provisions of the Constitution and the laws cannot be
ignored. It is, therefore, not possible to interpret the decision in Olga
Tellis in the manner to interpret the decision in Olga Tellis in the
manner suggested on behalf of the petitioners to bolster their case with
G the aid of Article 21.
22. During his argument Mr. Tarkunde fairly stated that the -t
Municipal Committee may be entitled to regulate the squatting
business of the petitioners, but they must make detailed schemes in
this regard. A serious concern was shown in the argument of the other
H learned advocates also alleging that corruption at large scale was
SODAN SINGH v. N.D.M.C. [SHARMA, J.] 1057

rampant and huge amounts of money were being realised illegally by
some of the servants of the Municipalities from the poor hawkers. No A
,rules have been framed with respect to the choice of the persons, the
area to be allowed to them or the rate of Tehbazari charges. The
permission to squat was being granted on daily basis or for very short
periods to the great inconvenience to the hawkers and no machinery
was available to hear their grievances. A draft scheme has been pre- B
pared and filed on behalf of the petitioners with a suggestion that the
respondents may be directed to adopt it. On behalf of the respondents
it was said that statutory provisions are already there in this regard,
. · 1 but they had to concede that they are too sketchy and incapable of
r meeting the need. We are, in the circumstances, of the view that
detailed necessary provisions, dealing with all relevant aspects, and
capable of solving the problems aris.ing in the situation in a fair and C
equitable manner, should be made; and,' the respondents should pro-
ceed as soon as may be possible. They will be well advised to consider
the suggestions of the petitioners while finalising the schemes. Due
regard to the requirements of the relevant laws, e.g., Delhi Police Act,
197ey and the Delhi Control of Vehicular and other Traffic on Roads D
and Streets Regulation, 1980 will have to be given.

23. We would, however, make it clear that the demand of the
"' -4. petitioners that the hawkers must be permitted on every road in the
city cannot be allowep. If a road is not wide enough to conveniently
inanage the traffic on it, no hawking may be permitted at all, or may be E
sanctioned only once a week, say on Sundays when the rush consider-
.... ably thins out. Hawking may also be justifiably prohibited near hospi-
:'~
tals or where necessity of security measures so demands. There may
' still be other circumstances justifying refusal to permit any kind of
,4 business on a particular road. The demand on behalf of the petitioners
.,. that permission to squat on a particular place must be on a permanent F
basis also has to be rejected as circumstances are likely to change from
time to time. But this does not mean that the licence .has to be granted
on the daily basis; that arrangement cannot be convenient to anybody,
except in special circumstances.

24. The authorities, while adopting a scheme, should also con- G
sider the question as to which portions of the pavements should be left
~ free for pedes\rians and the number of the squatters to be allowed on a
particular road. There should be rational basis for the choice of the
' licensees. A policy decision should be taken in regard to the articles
which should be permitted to be sold on the pavements. It is common
; knowledge (as was taken note of in Bombay Hawkers case) that some H
1058 SUPREME COURT REPORTS [1989] 3 S.C.R.

A of the hawkers in big cities are selling very costly luxury articles includ· ~
ing sophisticated electronic goods, sometimes imported or smugglea .
. The authorities will be fully justified to deny to such hawkers any
facility. They may frame rules in such a manner that it may benefit
only the poor hawkers incapable of investing a substantial amount for
starting the business. Attempt should be made to make the scheme
B comprehensive, dealing with every relevant aspect, for example, the ...
charges to be levied, the procedure for grant and revocation of the
licences, et cetera.

c
25. We as a Court in a welfare State do realise the hardship to
which many of the petitioners may be exposed if they are prevented·-.,,,
from carrying on the business. T)je only solution for this is the adop- ,
-
tion of the policy of full employni!ent, which even according to leading -'('
economists like Keynes will alleviate the problems of the unemployed
to some extent. But as students of economics we also realise that every
human activity has the 'optimum point' beyond which it becomes
wholly unproductive. It is for the Government to take reasonable steps
D to prevent movement of people from rural areas to urban areas. That
can be done by the development of urban centres in rural areas
removed from each other at least by one hundred miles. This is more a
matter of executive policy than for judicial fiat. We hope and trust that
in administering the laws in force the authorities will keep in view )-
humane considerations. With these observations we dispose of these
E petitions and remit them to the appropriate Division Bench for final
disposal in accordance with this judgment.

KULDIP SINGH, J. I have read the erudite judgment of L.M.
Sharma, J, wherein it has been held that street trading, whether as an
itinerant vendor/hawker or from a stationary position/receptacle/
F kiosk/foot-path, is a fundamental right guaranteed under Article
19(1)(g) of the Constitution of India. The said right is obviously
subject to reasonable restrictions imposed by the State under Article
19(6) of the Constitution. It has further been held that there is no
fundamental right of a citizen to occupy a particular place in any street
for the purpose of engaging himself in 'street trading.' I respectfully
G agree with these findings arrived at by Sharma, J. I may, however, add
few words to support these findings.

The guarantee under Article 19( l)(g) extends to practice any
profession, or to carry on any occupation, trade or business. ·Profes-
sion' means an occupation carried on by a person by virtue of his
H personal and specialised qualifications, training or skill. The word
SODAN SINGH v. N.D.M.C. (KULDIP SINGH, l.l ' 1059

'occupation· has a wide meaning such as any regular work, prof9ssion.
job, principal activity, employment, business or a calling in which an
individual is engaged. 'Trade' in its wider sense includes any bargain or
sale, any occupation or business carried on for subsistence or profit, it
is an act of buying and selling of goods and services. It may inc\lide any
business carried on with a view to profit whether manual or
mercantile. 'Business' is a very wide term and would include anything B
which occupies the time, attention and labour of a man for the purpose
of profit. It may include in its form trade, profession, industrial and
commercial operations, purchase and sale of goods, and would include
..,. . anything which is an occupation as distinguished from pleasure. The
!"~ object of .using ..four analogous and overlapping words in Article
'I 19( l)(g) is· to make the guaranteed right as comprehensive as possible
::~,._ to include all the avenues and modes through which a man may earn C
his livelihood. In a nut-shell the guarantee takes into fold any activity
carried on by a citizen of India to earn his living. The activity must of
course be legitimate and not anti-social like gambling, trafficking in
women and the like.
D
Street trading is an age-old vocation adopted by human beings to
earn living. In the olden days the venue of trading and business has
1 always been the public streets but, in the course of time fairs, markets,
' bazars and more recently big shopping complexes and fashionable
plazas have come up. In spite of this evolution in business and trade
patterns the 'street trading' is accepted as one of the legitimate modes E
of earning livelihood even in the most affluent countries of the world.
"' In England 'street trading· has been regulated by various Acts of
Parliament. Paras 425 to 448 of Halsbury's Laws of England, Fourth
edition, Volume 40 deal with this subject. Paras 427 to 430 pertain to
~-ii 'street trading· in districts as regulated by the provisions of Local Gov-
ernment (Miscellaneous Provisions) Act, 1982. Paras 427 and 428 are F
reproduced as under:

"427- Adoption of street trading code and designation of
streets. A district council may resolve that the street trad-
ing code is to apply to its district as from a specified day.
G
Where it has done so, it may by resolution designate
any street in its district as a 'prohibited street' in which
street trading is prohibited, a 'licence street' in which steel
trading is prohibited without a licence granted by the dis-
trict council, or a 'consent street' in which street trading is
prohibited without its consent." H
A
1060 SUPREME COURT REPORTS , [1989] 3 S.C.R.

"428.-Street trading licences. Application for the grant or
,,.
renewal of a street trading licence under the street trading
code may be made by any person aged seventeen or over in
writing to the district council. The council is under a duty to
grant the application unless it considers that it ought to be
refused on one or more of the following grounds:
B ' ; ~ , I
r
(1) that there is not enough space for the applicant to trade
without causing undue interference or inconvenience to

,
street users;

(2Y that there are already·enough traders .trading in the
street from shops or otherwise in the particular goods;
c .. ,{
(3) that the applicant desires to trade on fewer than the
. minimum number of days resolved on by the council;

(4) that by reason of some conviction or otherwise he is
D unsuitable;

(5) that he has been licensed by the council but has persis-
tently refused or neglected to pay its fees or charges;
)-
( 6) that he has' been granted a street trading consent by the
E council but has refused or neglected to pay its fees;

(7) that he has without reasonable excuse failed to avail )

himself to a reasonable extent of a previous licence.

The licence specifies the street in which, days on '('--'
F which and times between which, and describes the articles
in which, the licence holder is permitted to trade, and may
contain such subsidiary terms as the council thinks reason-
able. Unless previously revoked or surrendered, it remains
valid for twelve months or such period as is specified in it,
although if the council resolves that the street be designa-
G ted a prohibited street the licence ceases to be valid when
the resolution takes affect. The council may at any time
revoke a licence on grounds similar to heads (1), (4), (5) ~
and (7) above, an\! the licence holder may at any time
surrender his licence to the council.

H . _On receiving an application for the grant or renewal of a
SODAN SINGH v.'N.D.M.C. IKULDIP SINGH, J.] 1061

licence, the council must within a reasonable time either
A
grant the licence as applied for, or serve on the applicant a
notice specifying, with its grounds, its proposal to refuse
the application, to grant a licence on different principal
terms, to grant a licence limited to a particular place in a
street, to vary the principal terms or to revoke a licence,
and stating that within seven days of receiving the notice B
the applicant may by written notice require the council to
give him the opportunity of making representations. In this
case the council may not determine the matter until either
the applicant has made representations, or the time for
doing so has elapsed, or the applicant has failed· to make
the representations which he required the council to allow
him to make. c
A person aggrieved by certain refusals or decisions of
a .council may appeal to a magistrates' court, and appeal
from the magistrates' decision lies to the Crown Court. The
council must give effect to the court's decision. D

If a licence holder applies for the renewal of a licence
before it expires, the old licence remains valid until a new
licence is granted or during the time for appealing or whilst
an appeal is pending, and where a council decides to vary
the principal terms of a licence or to revoke it, the variation E
or revocation does not take effect during the time for appe-
aling or whilst an appeal is pending.

,, :;.(:, A licence holder may employ assistance without any
further licence being required."
F
···•Paras 43 lio 448 relate to 'street trading' in Greater London and
in tli city of London. London Country Council (General Powers) Act,
1947 and City of London (Various Powers) Act, 1965 provide for
designation r.of streets by the London Borough Council in respect of
which applications for grant of 'street trading' licences are entertained.
·There are provisions for the registration of stne: traders. The proce- G
)-;d~re;,for grant of• Annual licences and the grounds on which such
.. literices··may be refused, has been laid-down. There is a complete
code,' in .the shape of various statutes, which regulates the business of
'street trading' in England. Trading in the streets of London from a

I
stationary position is a common sight. Even in the famous Oxford
street which is always over-crowded, there are kiosks, receptacles and H
1062 SUPREME COURT REPORTS [1989] 3 S.C.R.

stalls at every street-junction from where fruits, confectionary, soft
A
drinks, souvenirs, newspapers and various other articles are s9ld.
'Street trading' is thus one of the traditionally recognised business or
trade in England. This is so in spite of the fact that there is a complete
social security in that country and as suc.h no compulsion on the
citizens to be driven to street trading out of poverty or unemployment.
B On the other hand abysmal poverty in India warrants outright rejec-
tion of the argument that nobody has a right to engage himself in
'street trading'. "Justice, social, economic and political" and "citizens,
men and women equally, have the right to an adequate means to
livelihood" which the Constitution of India promises is still a distinct
dream. This Court, in various judgments, has reminded the Govern-
ment of its constitutional obligations to ameliorate the lot of the poor
c in India. Nothing much ha~ been achieved. An alarming percentage of
population in India is still living below poverty-line. There are millions
of registered unemployed. The Government, in spite of constitutional
mandate is unable to provide them with employment. But when, by
gathering meagre resources, they try to employ themselves as hawkers
p or street-traders, they cannot be stopped on the pretext that they have
no right, rather the Government should render all help to rehabilitate
them.
~
Mr. Tarkunde contended that street-trading, being a common
law right, has to be treated as a fundamental right under Article
E 19(1)(g) of the Constitution of India. It is not necessary to examine the
matter from this aspect. Once street-trading is accepted as legitimate
trade, business or occupation it automatically comes within the protec-
tion guaranteed under Article 19(l)(g) of the Constitution of India.
There is no dispute that public streets are primarily to be used by the
public generally as pathways for passing and repassing but there are ~
F other ancillary purposes for which the public streets can be ~sed as of ~
right. In Manzur Hasan v. Muhammed Zaman, 52 I.A. 61 the P.•Vy
Council held as under:

"In India, there is a right to conduct a religious proce,sion·
with its appropriate observances through a public street so
G that it does not interfere with the ordinary use of the street
by the public, and subject to lawful directions by the magis- .J
tr ates. A civil suit for a declaration lies against those who· r \

interfere with a religious procession or its appropriate
observance.''

H In Saghir Ahmed v. The State of U.P. and others, [1955] 1 S.C.R.
SODAN SINGH v. N.D.M.C. [KULDIP SINGH, J.[ 1063
.....
707, this Court held that a business of transporting passengers with the
A
aid of vehicles was a trade or business and as such was guaranteed
under Article 19(1)(g} of the Constitution of India. In Himat Lal K.
Shah v. Commissioner of Police, Ahmedabad and another, [1973] 2
S.C.R. 266, this Court held that right to hold a public meeting on a
public street is a fundaillental right under Article 19(1)(a) and (b) of
the Constitution of India and the same cannot be arbitrarily denied. B
There is thus no justification to deny the citizens of their right to earn
livelihood by using the public streets for the purpose of trade and
business.

..I
>J;i
In India there are large number of people who are engaged in the
business of 'street trading'. There is hardly a household where hawkers
do not reach. The house-wives wait for a vegetable vendor or a fruit c
seller who conveniently delivers the daily-needs at the door-step. The
petitioners before us are street-traders of Delhi and New Delhi areas.
Some of them have licences{fehbazari from Municipal Corporation of
Delhi/New Delhi Municipal Committee but most of them are squat-
ters. There is practically no law regulating street trading in Delhi/New
'
Delhi. The skeletal provisions in the Delhi MunicipaLCorporation .

Act, 1957 and the Punjab Municipal Act, 1911 can hardly provide any
-( regulatory measures to the enormous and complicated J?roblem of
street trading in these areas.

In Bombay Hawkers' Union and others v. Bombay Municipal E
Corporation and others, [1985] 3 S.C.C. 525 this Court suggested that
schemes be framed to regulate the hawking business by creating hawk-
ing and non-hawking zones. Again in Municipal Corporation of Delhi
., .
:.' -. v. Gurnam Kaur, A.LR. 1989 S.C. 38 this Court observed as under:

" ...... We feel that the Municipal Corporation authori- F
r' ties in consultation with the Delhi Development Authority
should endeavour to find a solution on the lines as sug-
gested in Bombay Hawkers' Union i.e. by creating Hawk-
ing and Non-Hawking Zones and shifting the pavement
squatters to Areas other than Non-Hawking Zones. The
authorities in devising a scheme must endeavour to achieve G
a twin object viz., to preserve and maintain the beauty and
the grandeur of this great historic city of Delhi from an
aesthetic point of view, by reducing congestion on the
public streets and removing all encroachments which cause
obstructions to the free flow of traffic, and. rehabilitate
those unfortunate persons who by force or circ1•mstances, H
1064 SUPREME COURT REPORTS [1989] 3 S.C.R.

A are made to ply their trade or business on pavements or
public streets."

Street Trading being a fundamental right has to be made avail,
able to the citizens subject to Article 19(6) of the Constitution. It is
B within the domain of the State to make any law imposing reasonable ,,..
restrictions in the interest of general public. This can be done by an
enactment on the same lines as in England or by any other law permis-
sible under Article 19(6) of the Constitution. In spite of repeated
suggestions by this Court nothing has been done in this respect. Since a
citizen has no right to choose a particular place in any street for trad-
ing, it is for the State to designate the streets and earmark the places ~
.. l'

Ill

C from where street trading can be done. In-action on the part of the
State would result in negating the fundamental right of the citizens. It ""('
is expected that the State will do the needful in this respect within a
reasonable time failing which it would be left to the courts to protect
the rights of the citizens.
D R.S.S. Petitions disposed of.

~

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• II"
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