OD 1 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE WPO/417/2026 ASIT KUMAR SAHA AND ORS VS THE STATE OF WEST BENGAL AND ORS BEFORE: The Hon’ble JUSTICE PARTHA SARATHI CHATTERJEE Date:7th September, 2026 Appearance: Mr. Debashis Banerjee,Adv. Ms. Gargi Roy,Adv. Mr. Rakesh Jana,Adv. …for the Petitioners. Mr. Saurav Sengupta,Adv. Mr. N.G.Khaitan,Adv. Mr. Parashar Baidya,Adv. …for the State. Mr. Billawadal Bhattacharyya,Sr. Adv. Mr. Srijib Chakraborty,Adv. …for the KMC. The Court:- The present petition has been preferred questioning the legality and/or tenability of the notice dated 27th August, 2026, issued by the Executive Engineer (Civil), Borough–VII, having his office at 9/1A, A.J.C. Bose Road, Kolkata– 700017. In addition thereto, the petitioners have prayed for a direction upon the concerned respondents to implement and enforce the provisions of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (for short, the 2 “2014 Act”), and the rules and schemes framed thereunder. The petitioners have further prayed for an order restraining the respondents from taking any steps to evict the petitioner. The notice directed that all unauthorised encroachments made adjacent to premises no. 25B, Park Street, in Ward No. 63, by erecting or setting up any structure, whether fixed or movable, or of a permanent or temporary nature, on the road or footpath in violation of Section 371 of the Kolkata Municipal Corporation Act, 1980 (for short, the “1980 Act”), read with Section 516 thereof, be removed immediately. Mr. Banerjee, learned Counsel appearing for the petitioners, submits that all the petitioners are street vendors within the meaning of Section 2(l) of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (for short, the “2014 Act”), and earn their livelihood by carrying on vending activities on the street and footpath. However, suddenly, the Executive Engineer, in exercise of the powers conferred under Section 371 of the Kolkata Municipal Corporation Act, 1980 and Section 516 thereof, issued the impugned notice directing the said street vendors to remove their respective structures from the area adjacent to premises no. 25B, Park Street, Kolkata. Referring to Section 33 of the 2014 Act, he submits that the said Act, being a Central legislation, shall have overriding effect over the municipal law, including the Kolkata Municipal Corporation Act, 1980 (for short, the “1980 Act”). He places reliance on the judgment reported in (2014) 1 SCC 490, Maharashtra Ekta Hawkers Union & Anr. v. Municipal Corporation, Greater Mumbai & Ors., and submits that the 2014 Act was enacted pursuant to the directions issued by the Hon’ble Supreme Court in the said judgment. He submits that, in the said decision, the Hon’ble Supreme Court recognised 3 the right of street vendors to carry on vending activities and to resist their eviction from the streets except in accordance with law. According to him, the impugned notice has adversely affected the right of the petitioners to earn their livelihood by carrying on vending activities as street vendors. Mr. Banerjee submits that the provisions of the 2014 Act have also been implemented within the territorial jurisdiction of the Kolkata Municipal Corporation. Drawing the attention of the Court to the Minutes of the Meeting of the Town Vending Committee held on 12th March, 2014, he submits that the Committee had commenced the process of surveying all existing street vendors within the territorial jurisdiction of the KMC. However, according to him, the Committee is yet to arrive at any final decision pursuant to such survey. He, therefore, submits that the road or footpath adjacent to premises no. 25B, Park Street, has not been declared a “no-vending zone”. Consequently, according to him, the Corporation cannot prohibit any person from hawking or vending on such road or footpath. He further submits that a Public Interest Litigation involving a similar issue is pending before the Hon’ble Division Bench of this Court. According to him, until the survey of all existing street vendors is completed and the process contemplated under the 2014 Act is duly undertaken, the Corporation ought to be restrained from giving effect to the notice dated 27th August, 2026. Mr. Bhattacharyya, learned Senior Advocate appearing for the Kolkata Municipal Corporation, submits that whether the present petitioner can be treated as street vendor within the meaning of 2014 Act is not the subject matter of the present writ petition. He submits that a street vendor cannot claim a right to encroach upon a footpath or a public 4 street. He submits that very recently the Hon’ble Supreme Court, in a decision reported in 2026 SCC Online SC 1162 which was subsequently titled as ‘Re: Fundamental Right to Walk and Footpath’, ruled that the pedestrian has every right to walk on the footpath and public street and that right cannot be curtailed. He claims that Right to walk on the footpath and public street is a fundamental right guaranteed under Part III of the Constitution of India and is integral to the freedom of movement as enshrined under Article 19 of the Constitution of India. He submits that the Hon’ble Supreme Court further ruled that such right includes safe and demarcated footpath and has access on demarcated footpath. Referring to the judgment reported in (2019) 5 SCC 119, Municipal Corporation of Greater Mumbai & Ors. v. Rafiqunnisa M. Khalifa (Deceased) through her Legal Heir Mohd. Muqeen Qureshi & Anr., Mr. Bhattacharyya submits that, while considering Section 312 of the Bombay Municipal Corporation Act, which is pari materia with Section 371 of the Kolkata Municipal Corporation Act, the Hon’ble Supreme Court recognised the power of a municipal authority to remove unauthorised occupants from footpaths and public streets falling within its territorial jurisdiction. Mr. Bhattacharyya further places reliance upon the judgment of a coordinate Bench reported in 2017 SCC OnLine Cal 651 (Edward Food Research and Analysis Centre Limited & Anr. v. The Kolkata Municipal Corporation & Anr.), wherein, upon consideration of the legislative mandate embodied in Section 371 of the KMC Act, the Court held that the Corporation has the power to remove unauthorised structures erected on public streets and, accordingly, directed the Corporation to remove such structures. 5 In response, Mr. Banerjee submits that, in terms of the regulations governing the Town Vending Committee, the petitioners have been carrying on vending activities over one-third of the width of the street. He further submits that, in WPA No. 2267(1) of 2006, the coordinate Bench directed the Corporation to afford an opportunity to the owners of the immovable vending carts to make such carts movable in accordance with the provisions of the 2014 Act. Heard the learned Advocates appearing for the parties and perused the materials on record placed before me. Undoubtedly, the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 is a Central legislation and, by virtue of Section 33 thereof, has overriding effect over any law inconsistent therewith. The said Act recognises and regulates the rights of street vendors to carry on vending activities within the statutory framework contemplated therein. In the present case, however, no material has been placed before this Court to demonstrate that the petitioners have been recognised as street vendors under the statutory framework of the said Act or that any certificate of vending has been issued in their favour pursuant to the survey contemplated under Section 3 thereof. At the same time, it cannot be disputed that the 2014 Act seeks to protect the livelihood of street vendors and confers upon them certain statutory rights in respect of vending zones and against eviction, subject to the conditions and limitations prescribed therein. Such statutory protection, however, cannot be construed as conferring an unrestricted right to occupy or encroach upon any portion of a public street or footpath. The distinction between the right to carry on vending activity in accordance with law 6 and the right to occupy public land without authority must necessarily be maintained. This view is also consistent with the view expressed by a coordinate Bench in WPA No. 22671 of 2006 (Tangra Dhapa Hawkers Samiti & Ors. v. KMC & Ors.). I find no reason to take a different view. It is, therefore, clarified that this order shall be understood as curtailing or diluting any right which a street vendor may otherwise be entitled to claim under the 2014 Act. If the petitioners are recognised as street vendors by the competent authority, in accordance with the provisions of the 2014 Act, as persons entitled to carry on vending activities in a vending zone, such statutory right shall obviously be protected in accordance with law. However, the provisions of the 2014 Act cannot, in my view, be invoked as a justification for an unauthorised occupation or encroachment upon a public street or footpath, particularly when no material has been placed before the Court to establish any statutory authority for the occupation in question. In the present case, the petitioners have failed to place any material before this Court to establish that their occupation of the portion of the footpath and/or public street adjacent to premises no. 25B, Park Street, Kolkata, has been authorised or recognised under the statutory framework governing street vending. The Corporation having treated such occupation as unauthorised, and there being no material before this Court at this stage to demonstrate otherwise, I find no sufficient ground to interfere with the impugned notice. It is, however, made clear that, if upon completion of the statutory process, the petitioners are recognised as street vendors and allotted a vending zone in accordance 7 with the 2014 Act, they shall be at liberty to carry on vending activities strictly in accordance with such recognition and the applicable statutory provisions. However, this order shall not preclude the petitioners from approaching the Town Vending Committee seeking permission to carry on vending activities in a vending zone. In the event the petitioners approach the Committee with such a prayer, the Committee shall consider the same in accordance with law. It is, however, clarified that the aforesaid observation shall not be construed as a fetter upon the Corporation in taking appropriate steps, in accordance with law, for removal of any unauthorised structures from the footpaths or streets adjacent to premises no. 25, Park Street, Kolkata. With these observations and order, the writ petition is, thus, disposed of ; however, without any order as to the costs. (PARTHA SARATHI CHATTERJEE, J.) s.chandra A.R.(C.R.)