Jammu and Kashmir and Ladakh High Court: While considering a public interest litigation (‘PIL’), in respect of the illegal encroachments made by the shopkeepers in JDA Shopping Complex, near City Chowk, Jammu. The Division Bench of Arun Palli, CJ., and Rajnesh Oswal*, J., directed that the encroachments on public pathways, roads, streets, and nullahs by shopkeepers, street vendors, or any other commercial establishments should not be permitted under any circumstances.
Background:
The PIL, which was continued by the Court on its own motion after the original petitioner’s demise, primarily dealt with the issue of the illegal operation of Rehries (handcarts) and widespread encroachments by shopkeepers in JDA Shopping Complex, near City Chowk, Jammu, which caused obstruction to pedestrians and vehicular traffic.
The Court vide order dated 28-3-2018, directed the relocation of street vendors to designated vending zones and prohibited vending on public roads and pathways. The repeated violations by shopkeepers, despite being challaned, were to be dealt with under Sections 232 and 371 of the Municipal Corporation Act, which also empowered the Jammu Municipal Corporation (‘JMC’) to seal premises after a 10 days’ notice. Further, the Jammu Development Authority (‘JDA’) was also ordered to ensure that the encroachments in and around JDA shopping complex are removed. In compliance with the order, JMC carried out special anti-encroachment drives with the assistance of Police and materials obstructing the public pathways were confiscated. The habitual violators were served notice with a warning that continued violations would result in sealing.
The Court, on 26-7-2019, passed an order and sought details as to the permissions, licensing, and regulations of food joints and dhabas, especially the ones selling non-vegetarian items. The Court inquired whether there was compliance with the Municipal Corporation Act, 2000 and the FSSAI Act, 2006 and whether public nuisance was caused due to lack of parking and proximity to unhygienic locations. The JMC and JDA as well as the Government of Union Territory of J&K, were directed to inform the Court if they had any scheme or proposal for enacting bye laws regarding hawking and vending in public streets. To this, the respondents filed an affidavit stating that the Rules under the Street Vendors (Protection of Livelihood and Regulation Street Vending) Act, 2014 had been notified to be implemented from 29-1-2021. The Court then directed the Divisional Commissioner, Jammu, to act as Nodal Officer, to oversee compliance.
The Nodal Officer filed a report stating that 60 inspections were carried out, 36 establishments were checked, and three unlicensed food joints operating on footpaths were fined and issued closure notices. A follow-up report was also submitted which mentioned the further compliance measures taken and another report by the JDA confirmed issuance of show-cause notices to the encroaching shopkeepers. Anti-encroachment drives were undertaken by JMC, and inspection was conducted by the Food Safety Officers. It was also stated that no fresh license or registration was issued to any street vendor or hawker without a Non-Objection Certificate from the JMC.
Analysis and Decision on removal of commercial encroachments:
The Court considered Gainda Ram v. Municipal Corporation, Delhi, (2010) 10 SCC 715, and reiterated the need to harmonize the hawkers’ rights under Article 19(1)(g) of the Constitution with the public’s right to movement without any impediment. The Court noted there was continued encroachment despite earlier judicial interventions, and that much more was required to be done.
The Court stated that the JMC was empowered to take steps to enforce the compliance of its orders and that it had the inherent power to seal the premises to deter the defaulters from repeating violations. The Court also observed that while removing the encroachments, the officials concerned should use minimal force so that no unnecessary harassment was caused to anyone.
The Court disposed of the petition with the following directions –
- The JMC should ensure that no public pathway, road, street or nullah was encroached on by anyone and anti-encroachment drive be conducted in the whole City of Jammu every fortnight. No commercial establishment should be permitted to place their gadgets on the street, pathway, road, or nullah.
- The JMC should educate the shopkeepers or owners of commercial establishments against encroaching on any street etc. for the purpose of displaying, selling their goods, or keeping their gadgets.
- If any shopkeepers or commercial owners continue to violate the orders, even after being fined, by extending their shops or placing gadgets in public spaces, JMC should initiate proceedings under Sections 232 and 371 of the Municipal Corporation Act.
- If the violations continued even after fines and action under Section 232, the JMC should seal the shop after the failure on the part of violator to remove the violation after 10 days’ notice to remove the same was issued.
- The JDA should ensure that the shopkeepers in the JDA Complex situated at City Chowk, Jammu did not encroach the pathways in front of their shops and in case of repeated violations issue notice for cancellation of their lease deeds.
- The JMC should ensure that no food joint was operated on the roadside, pathway, or street without permission from the JMC and competent authority under the Food Safety and Standards Act, 2006.
- The JMC should also ensure that rehries operated only at the designated places and no obstruction was caused in the smooth flow of traffic because of them.
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The authority concerned should ensure the implementation of Street Vendors (Protection of Livelihood and Regulation Street Vending) Act, 2014 and Rules of 2021 framed there-under, in its letter and spirit.
[Court of its own motion v. State of J&K, PIL No. 27 of 2017, decided on 6-6-2025]
*Judgment authored by: Justice Rajnesh Oswal
Advocates who appeared in this case:
For the Petitioner: Ajay Sharma, Adv. (Amicus Curiae).
For the Respondents: S. S. Nanda, Sr. AAG, Sunil Sethi, Sr. Adv. with Parimoksh Seth, Adv., A. K. Sawhney, Adv., Harshwardhan Gupta, Adv., Sachin Dogra, Adv., Atul Verma, Adv.
