Footpaths Are Constructed To Ensure Safe Passage, Purpose Gets Defeated If Civic Body Permits To Erect Stalls- Bombay HC

The Bombay High Court has observed that the purpose of footpaths was to ensure safe and smooth passage for pedestrians and it gets defeated if Brihanmumbai Municipal Corporation (BMC) permitted 11 stall owners to erect stalls on a footpath.

The Bench of Justice Sunil B. Shukre and Justice M.W. Chandwani hearing the petition directed the BMC to reconsider its decision and observed that “When footpaths are constructed, their purpose is to allow smooth passage of vehicles or traffic on the one hand and making available to the pedestrians a safe path to traverse distance by walking. This very purpose, in our opinion, is prima facie getting defeated at the hands of the Corporation by permitting erection of stalls right in the middle of the footpath.”

Advocate Satish Borulkar appeared for the petitioner and Advocate Anoop Patil appeared for the respondents.

The Petitioner was an NGO ‘The Bombay Mother and Children Welfare Society’ which runs the Tilak Hospital had preferred the Writ Petition challenging BMC’s decision whereby 11 stall owners were permitted to erect stalls on a footpath situated right in front of the hospital.

It was contended by the petitioner, that as per the restrictions imposed by the Apex Court in the case of ‘Maharashtra Ekta Hawkers Union and Another Vs. Municipal Corporation, Greater Mumbai and Others’ (2004) 1 SCC 624, popularly called as “2004 Ekta Judgment”, hawking within 100 meters from any hospital and also such places as temples, holy shrines or other places of worship and educational institutions was prohibited.

The Counsel for the BMC, on the other hand, claimed that the prohibition was applicable to hawkers and not stall owners.

In light of the submissions made, the Court said that prima facie, the submission of respondent's counsel appeared to be right. But detailed examination of the facts of the case and applicability of “2004 Ekta Judgment” to the facts of the case would have to be undertaken by the Court and therefore, the matter would be heard on its merit.

The Court further expressed that the main issue was regarding the proper usage of the footpaths, which was meant for pedestrians and not for carrying on any business by anybody.

"If corporation permits any stall owner to erect the stall on the footpath, the corporation is prima facie acting against public interest as its causes obstructions to the pedestrians and resultantly the pedestrians would be forced to use the road for walking, thereby endangering their own lives and also lives of the occupants of the vehicles which are plying on the road.” said the Court.

Therefore, the Court directed BMC to reconsider its earlier decision.

Accordingly, the ad-interim relief passed earlier was continued until further orders.

Cause Title- The Bombay Mothers and Children Welfare Society v. The Commissioner and 2 Ors. 

Click here to read/download the Order