Property Rights and Street Vendors

Amit ChandraRajul Jain

What is meant by property rights?

ACQUIRE

To become owner of through legal means HO

LD

To possess the property and enjoy the benefits which are ordinarily attached to its ownership (including its management)

DISPOSE OF

To transfer, assign or sell the property

Objectives of the Study

o Trace the development of law related to property rights in general

o Trace the evolution of property rights as

applicable to street vendors’

o Analyse and evaluate the protection afforded to street vendors under Street Vendors (Protection Of Livelihood And Regulation Of Street Vending) Act, 2014

Evolution of Property Rights in India

o Enshrined in the Constitution of India under Article 19(1)(f) read with 19(5).

o Underwent several changes to meet political ends and eventually taken out of purview of fundamental rights.

o According to interpretation placed by Courts, if the right to enjoy property was impaired or if any incident of property was abridged or diluted or if the value of the property was affected by any law, then compensation became payable irrespective of the fact whether the state was acquiring the property for public use or just seeking to regulate it.

o Courts also held that compensation to be paid by the State meant just equivalent of the property acquired.

o Major constitutional amendments:1.Constitution (First Amendment) Act, 1951

Introduced the concept of Ninth Schedule

2. Constitution (Fourth Amendment)Act, 1955

Made question of adequacy of compensation non-justiciable

3. Constitution (Twenty-Fifth Amendment) Act, 1971

Article 31(C) added to further make laws effecting directive principles, non-justiciable

4. Constitution (Forty-Fourth Amendment) Act, 1978

Property right taken out of the purview of fundamental right and made a mere legal right

Factors for choosing

street vending as an

occupation

PatnaOnly means of earning a livelihood Ahmedabad

Retrenchment (30% of the surveyed vendors)

Mumbai Retrenchment (30% of the surveyed vendors)

Imphal

Poverty

Kolkata Retrenchment (55% of the surveyed vendors)

Bhubhaneshwar Lack of skills for other employment/ lack of

other jobs

Please refer to study conducted by National Commission for Employment in Unorganised Sector

Trivia about Street Vending

o According to a study conducted in 2001 by Manushi, a sum of approximately INR 500 million per month was collected as bribes and protection money by street vendors and rickshaw pullers in Delhi.

o Estimates related to Mumbai reflect that only 10% of the 104,000 hawkers earned more than INR 500 a day (study by Debul Saha)

o Women in street vending earn lesser than their male counterparts.

Judicial Discourse on the Subject and Informal Legislation

o In Bombay Hawkers’ Union vs. Bombay Municipal Corporation and Ors. the Supreme Court, for the first time, upheld the right to livelihood of the street vendors [1985(3)SCC528]

o In the case of Sodan Singh vs. UOI resorted to giving model guidelines to be followed by civic authorities till proper legislation could be brought into force [1998(2)SCC727]

o The Courts also recognised the importance of the street vendors in the economy and how they add to convenience of the people.

Review of Street Vendors (Protection of Livelihood and Regulation of Street

Vending) Act, 2014

o Provides for a nexus between number of street vendors and the population and/or the holding capacity of the area concerned.

o Provides for a right in the certificate issued, which can also be enjoyed through the certificate holder’s spouse or dependent child.

o Puts burden of paying maintenance charges and charges for facilities provided in the vending zone in addition to vending fee.

o The vendors who have a vending certificate and are operating from a location but are being relocated under the Act can assert a temporary right, which vests in them through the certificate to vend from any site whatsoever. Therefore, this right to relocation is very important and adds some strength to the concept of property rights of street vendors.

o Bar on eviction and relocation of vendors without notice.

o Section 28(a) makes any vending activity without a certificate of vending effectively illegal without, thereby, attracting penalty.

o As a matter of abundant caution Section 29(1) provides that no right—temporary, permanent or perpetual of carrying out vending activities in the vending zones allotted to him/her or in respect of any place is created in the vendor.

Key Findings

o Street vending has not been included in urban planning, which seems to be a huge drawback for the street vending activity.

o The Act vests the Town Vending Committees with wide discretionary powers.

o It is further observed that there are little or no safeguards within the Act itself which would protect the vendors from harassment by penalising officials who indulge in activities prohibited in the Act.

o Little awareness among street vendors about the provisions of law pertaining to their trade.

Recommendations

o Till the provisions of the Act are implemented in toto, all eviction drives should be put on hold.

o The scheme should also have mechanism for compensating the vendors where loss of goods is caused due to the action of the civic authorities or upon confiscation etc.

o The scheme should also clearly set out the guidelines for confiscation of goods, thereby specifying and limiting the powers of the local authorities to confiscate on such specific items.

o That the rule or scheme to be framed under the Act should have specific provision for punishing non-observance of pro-vendors guidelines.

o The street vending activities should be incorporated in the city planning exercise conducted by the urban planning bodies and accommodated in the master plans. This would strengthen the right of vendors in claiming spots from the Town Vending Committee and also provide a guiding structure to the committee. This would also remove arbitrariness in the action of the local bodies.

o That the rule or scheme to be framed under the Act should have provision for special insurance scheme for loss of goods (both the saleable items and goods used to carry on trade) of vendors through natural or man-made reasons.

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