REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

I.A.No. 1 in I.A. No. 407 in W.P.(C) No. 1699/1987

PATRI VYAPAR MANDAL DELHI (REGD)                 ……Petitioner(s)

VERSUS

M.C.D. TOWN HALL & ORS.                               ……Respondent(s)

WITH

I.A.No.1 & C.P.(C) No. 170/2007 in I.A. No. 394 in I.A. No. 356 in WP(C) No. 1699/1987

CONTEMPT PETITION (CIVIL) No.323/2007 in WP(C) No. 1699/1987

WITH

I.A. No. 366 in W.P.(C) No. 1699/1987

I.A. No. 367 in W.P.(C) No. 1699/1987

CONTEMPT PETITION (CIVIL) No. 126/2001

I.A. No. 361 in W.P.(C) No. 1699/1987

I.A. Nos. 372-373 in W.P.(C) No. 1699/1987

I.A. No. 389 in W.P.(C) No. 1699/1987

I.A. No. 392 in W.P.(C) No. 1699/1987

WITH

W.P.(C) No. 535/2001

Page 1 of 20

W.P.(C) No. 240/2004

I.A. Nos. 397-398 in W.P.(C) No. 1699/1987

I.A. No. 399 in I.A. No. 394 in W.P.(C) No. 1699/1987

I.A. Nos. 1-2 in W.P.(C) No. 100/2002

I.A.No..../2005 in I.A.No. 394 in I.A.No. 356 in W.P.(C) No. 1699/1987

I.A.No..../2005 in I.A.No. 394 in I.A.No. 356 in W.P.(C) No. 1699/1987

I.A. No.400 in W.P.(C) No. 1699/1987

WITH

I.A. No.401 in I.A. No. 396 in C.P. No. 506/2002

WITH

I.A. No..... in C.P. No. 506/2002

I.A. No.402 in W.P.(C) No. 1699/1987

WITH

W.P.(C) No. 414/2006

WITH

I.A. No.403 in W.P.(C) No. 1699/1987

WITH

I.A. No.404 in W.P.(C) No. 1699/1987

WITH

I.A. No.406 in W.P.(C) No. 1699/1987

Page 2 of 20

WITH

I.A. Nos.408-409 in W.P.(C) No. 1699/1987

I.A. No.410 in W.P.(C) No. 1699/1987

WITH

CONTEMPT PETITION (CIVIL) No.183 in W.P.(C) No. 1699/1987

WITH

C.P. (C) No.......(D. No.4361/2009) in W.P.(C) No. 1699/1987

ORDER

Dr. Mukundakam Sharma, J.

1. By this  common order  we propose  to  dispose  of  various  applications

filed by the parties hereto including the one which has been filed by the

Municipal Corporation of Delhi (in short the ‘MCD’).  

2. Delhi being the capital of India has many peculiar problems.  One of the

problems  is  naturally  its  population  which  has  increased  manifold

obviously  due  to  influx  of  people  from  various  regions  and  States

looking for new openings and avocations.  Space availability in Delhi is

very limited and within that limited space available at  its  disposal the

municipalities  namely  the  MCD  and  the  New  Delhi  Municipal

Page 3 of 20

Corporation (in short the ‘NDMC’) have to manage all  their  activities

including functioning of the markets at different places.   

3. Limited space available for effective functioning of markets including

accommodation available for the squatters and hawkers to carry on their

small business has been receiving attention of this Court for quite a long

time.  In that regard, several orders have been passed by this Court from

time to time.  Pursuant to such orders of this Court the MCD as well as

the  NDMC have  framed Schemes for  running  of  the  business  by the

squatters/hawkers.   In response  to  the  Schemes,  nearly 85,000 people

applied for allotment of spaces within the MCD area and about 10,000

people  applied  for  such  allotment  within  the  NDMC  area  seeking

settlement of the tehbazari rights under the Schemes as formulated by the

MCD and the NDMC.  Due to want of space only about three thousand

of such applicants  out  of the  aforesaid applications  received could be

allotted spaces by the concerned authorities.   

4. So acute was the dissatisfaction with the process followed by municipal

authorities  that  several  complaints  were  filed  in  the  Court  raising

numerous  objections  against  the  manner  in  which  the  MCD  tried  to

implement the Schemes.   

Page 4 of 20

5. Under the Schemes formulated by the MCD and the NDMC hawking

and non-hawking areas have been demarcated and the hawkers/squatters

were to be located only in demarcated hawking zones in accordance with

the priorities mentioned in the Schemes.

6. In the last few years a clearance operation was being carried out for the

purposes  of  widening  roads  and  decongesting  crowded  areas  which

affected a large proportion of genuine vendors who were either removed

or dislocated for one reason or the other.  In some cases possession was

not given and in some other cases those persons, who were entitled to

settlement  under  the  Schemes  have  a  grievance  that  their  matters

remained pending and no orders have been passed granting them relief.

Consequent thereupon, a large number of applications were filed by the

concerned authorities and aggrieved parties in which general directions

were issued by this Court from time to time.

7. In the meantime, a Scheme called the “National Policy on Urban Street

Vendors”  (for  short  the  ‘NPSV/Scheme’)  was  formulated  by  the

Government of  India  in the year 2004 which the  MCD has agreed to

Page 5 of 20

implement  in  principle.   In  accordance  with  the  said  Scheme,  Ward

Vending Committees have been constituted in all the 134 Wards of the

MCD.  These committees were charged with the duties of identifying the

sites,  declaring  hawking  and  non-hawking  zones  in  consultation  with

various  stakeholders  like  Vendors/Trader’s  Associations,  Resident

Welfare Associations, Traffic Police etc. in accordance with the relevant

Rules.  In addition to this,  Zonal Vending Committees have also been

constituted in all the 12 Zones.  

8. According to the NPSV the total vending sites would not exceed 2.5% of

the total population of that particular Ward/Zone based on the Census

2001  which  is  consistent  with  the  policy framed for  the  purpose  and

about  3  lakh  hawkers/squatters  could  be  accommodated  including

existing tehbazari/vending sites.  It was proposed in the Scheme that the

rights of those hawkers/squatters already granted valid licenses under the

Schemes finalized by the MCD would not be affected and that whatever

action could be taken in the near future would be based in terms of the

Scheme.  It was decided that in executing the Scheme preference would

be  given  to  those  squatters/hawkers  eligible  for  allotment  under  the

existing scheme based on their seniority and priority of claim.   

Page 6 of 20

9. When the matter came up before this Court on 06.02.2007, all aspects of

the NPSV were fully discussed.  Certain suggestions were made in the

Court by the various parties which the Court found acceptable and in that

regard  directions  were  issued  to  the  MCD to  consider  whether  those

suggestions could be incorporated in the Scheme.  The MCD found the

suggestions acceptable and has submitted a Scheme incorporating those

suggestions.   Now  the  Scheme  envisages  identification  of

squatting/vending areas by the Ward Vending Committees which was to

be approved by the Zonal Vending Committees which is also empowered

to make necessary changes and make allotments accordingly.

10. In the said order dated 06.02.2007 reference was made to the fact that the

tehbazari/vending  sites  would  remain  the  property  of  the  MCD.

However, mutation in case of death or permanent insanity of the allottee

would be allowed.  It was provided that transfer/mutation in the event of

change of hands or exchange would be permissible subject to the charges

as approved by the MCD from time to time.  It was also provided that

tehbazari/vending sites would measure 6 ft. x 4 ft. and open to sky and

that no permanent structure would be allowed to be raised.  It was also

held that if it is found that any change or alteration in structure has been

made by the allottee, his licence would be cancelled.  It was ordered that

Page 7 of 20

all the existing allottees as per the old Schemes would continue and only

thereafter, the cases of others would be considered in accordance with

the preference as provided in the said sub-paragraph but that would not

preclude the shifting of an allottee from one site to another consistent

with the norms of the NPSV which provided that the eviction should be

avoided wherever feasible unless there is clear and urgent public need of

the land in question.

11. Broad guidelines were issued by this Court in the said order as to what

would be the further conditions to be incorporated in the Scheme which

were so incorporated.  However, the said Scheme proposed by the MCD

was not found to be satisfactory by some of the parties due to various

reasons due to which objections were raised in respect of some of the

clauses in the said Scheme.  This Court considered the said objections

and  after  detailed  discussion  and  subject  to  certain  modifications  as

outlined in the order passed by the Court, the Scheme submitted by the

MCD in regard to the tehbazari/vending sites was approved.

12. Ms. Indira Jaising, learned senior counsel  appearing on behalf of Self

Employed Women Association (SEWA) put forward a strong claim for

establishment of weekly markets in various areas.  This Court heard the

Page 8 of 20

said suggestions very carefully and after full deliberation held that the

Court cannot issue direction to declare weekly market in a particular area

for such matter is to be exclusively considered by the MCD.  So far as

the suggestion for giving preference to women vendors in the allotment

of tehbazari/vending sites is concerned, it was held that the same is again

a  matter  of  policy  and,  therefore,  it  was  observed  that  in  planning

markets in the city, the MCD may consider whether some space would

be made available to women vendors and whether they may be allotted

tehbazari/vending sites adjacent to each other in a Block.   

13. A further submission was made before the Court that the Schemes which

have been approved by the Court should be subject to such Act or Rules

that may be formulated in consonance with the NPSV.  The Court in that

regard made it clear that it had only approved the Schemes as framed by

the  MCD and  the  NDMC and  that  if  the  Legislature  intervenes  and

frames another Scheme or Regulation governing such Scheme that would

certainly supersede the Schemes formulated by the MCD for it  is well

settled that any administrative action is always subject to such law that

may be framed by the competent Legislature.  It  was observed by the

Court  while  passing  the  said  order  that  since  the  NPSV  have  been

formulated,  the  concerned  authorities  would  have  due  regard  to  it  in

Page 9 of 20

regulating tehbazari/vending sites etc.  In the orders subsequent thereto

this Court desired that the MCD and the NDMC would submit a separate

status  report  along with  charts  in  regard to the implementation of the

Schemes  not  only  in  general  but  also  with  reference  to  the  pending

applications.   

14. Pursuant to the aforesaid order passed, the MCD filed a detailed affidavit

on 19.04.2008 giving the said status report regarding the implementation

and progress of the new Scheme.  The MCD also filed an application

dated  09.05.2008  seeking  appropriate  directions  from  this  Court  in

regard to certain difficulties  being faced by them in implementing the

Scheme.   In  the  said  application  four  principal  difficulties  have  been

pointed out.  The first issue which is raised is that the Government of

India has issued an Ordinance in 2007 which was later converted into an

Act known as Delhi Laws Special  Provisions Act, 2007 (for short  the

‘Delhi  Act’)  which  restrains  removal  action  inter  alia  against

unauthorized squatters/vendors up to 31.12.2008.  It was stated that the

applicability of the Delhi Act has been extended for another one year and

an  appropriate  legislation  in  that  regard  has  been  passed  by  the

Parliament.

Page 10 of 20

15. In view of the aforesaid position it is pointed out that a problem is being

created for settlement of eligible squatters as some of the sites have been

occupied by unauthorized vendors who are entitled to protection under

the provisions of the Delhi Act.  It is next pointed out that for settlement

of  squatters/street  vendors,  there  is  hardly  any  footpath  which  has  a

width of 9 ft. providing 5 ft. for the pedestrians and 4 ft. for the hawkers

along the roads and as such, a difficulty has arisen to adjust the eligible

applicants on the footpath and also for identification of new squatting

and vending areas for them.  It was, therefore, suggested by the MCD in

the  said  application  that  it  may be  permitted  to  identify  the  sites  for

squatting/vending areas on the footpath having less than 9 ft. width and

for that purpose the open space on the footpath may be reduced from 5 ft.

to 3 ft.  It was pointed out that if such an order is not passed the number

of new sites identified/to be identified would not exceed 20,000.  The

third aspect on which emphasis was placed by the MCD was that this

Court in its earlier orders has barred transfer of sites.  It was pointed out

that most of the existing tehbazari sites have been sold by their original

allottees to others who are in possession of the sites as on date.  It was

also pointed out that in most cases the existing occupants of the allotted

sites did not apply pursuant to the advertisement which was issued by the

Page 11 of 20

MCD and also in the format which was approved by this Court.  Lastly,

it was pointed out that in many cases the tehbazari holders have made

additions/alterations  and  even  encroached  the  adjoining  area  thereby

enlarging the size of the tehbazari which is now fixed at 6 ft. x 4 ft. and

even in some cases, making it double storey instead of single storey/open

to sky or closed.  Therefore, it was proposed in the said application that

the MCD may be allowed to bring the old tehbazari sites into 6 ft. x 4 ft.

with an aesthetic design and to take action against encroachers/violators

in order to bring these tehbazaris to a uniform size and manner.

16. Applications were also filed by the other parties.  Mr. Prashant Bhushan,

learned counsel appearing for National Association of Street Vendors of

India (NASVI) while supporting his application which is registered as

I.A.  No.  404  in  W.P.  (C)  No.  1699  of  1987  submitted  that  mobile

hawkers should be allowed to replace unauthorised hawkers and that the

width  of  the  footpath  should  be  left  to  be  determined  by  the  Ward

Vending  Committees.   He further  submitted  that  the  meetings  of  the

Ward  Vending  Committees  should  be  more  transparent  and  advance

notice of such meetings should be given to all concerned particularly to

its  members.   He  also  submitted  that  the  applications  for  granting

Page 12 of 20

tehbazari sites are not being considered but instead the authorities have

started the eviction process.

17. Ms.  Geeta  Luthra,  learned  counsel  appearing  for  Manushi  Sangathan

made submission that there should be a photo census of all the squatters

and hawkers so as to avoid all illegal transfers of such sites in future.

She also referred to the NPSV and particularly to paragraph 3.1. of the

said Policy which gives vendors a legal status by amending, enacting,

repealing and implementing appropriate  laws and providing legitimate

hawking zones in urban development/ zoning plans.   

18. Mr.  R.K.  Khanna,  the  learned  counsel  appearing  for  the  NDMC

submitted that so far as NDMC is concerned it does not want the area

and width of the footpath to be changed or reduced.  He also submitted

that they have granted tehbazari licence in accordance with the existing

rules/Schemes.

19. So far  I.A.  No.  1  in  I.A.  No.  407  in  W.P.  (C)  No.  1699  of  1987  is

concerned,  orders  were  already  passed  in  the  said  application

on 05.03.2009.

Page 13 of 20

20. In view of the aforesaid position we are required mainly to deal with the

contentions  raised  by Mr.  Ravishankar  Prasad,  learned senior  counsel

appearing for the MCD in respect to the application filed by the MCD

whereby they have  sought  for  certain  clarifications  and also  with  the

contentions  raised  by  Ms.  Indira  Jaising,  Mr.  Prashant  Bhushan  and

Ms. Geeta Luthra.

21. So far  the  contentions  of  Ms.  Indira  Jaising   are  concerned,  the  said

contentions  with  regard  to  the  establishment  of  weekly  markets  and

giving  preference  to  women  vendors  in  the  matter  of  allotment  of

tehbazari/vending sites have already been dealt with and orders in that

regard have been passed by this Court in the order dated 17.05.2007.  It

is established from the records and the statements made before us that

the Ward Vending Committes numbering 134 as also the Zonal Vending

Committes   numbering 12 have already been constituted.  The Appellate

Committee to be presided over by a retired High Court Judge in terms of

the  orders  of  this  Court  has  also  been  constituted.   It  is  an  admitted

position that no Act or Rules have been framed so far by the Legislature

in  consonance  with  the  NPSV.   Therefore,  orders  in  the  manner  of

administrative action could be issued subject to law that may be framed

by the competent Legislature.

Page 14 of 20

22. With regard to the contentions raised by the MCD regarding reduction of

the  width  of  the  footpath  for  pedestrian  from 5  ft.  concerned,  in  our

considered opinion, no direction in that regard could be passed by this

Court.  There could be some areas where 5 ft. width of the footpath for

the  use  of  pedestrian  could  be  necessary  depending  on  overflowing

members  using  it  whereas  in  some  other  places  width  of  5  ft.  for  a

footpath  and  4  ft.  width  for  hawkers  may not  or  could  not  be  made

available due to various practical reasons.  It is also not possible for us to

consider reduction of width of such footpath for we are unaware of the

existing  condition  of  the  footpaths  of  the  various  areas  in  Delhi.

Therefore, we do not intend to pass any such orders without there being

some concrete materials for such modification.  We, however, leave the

matter to be considered by the Zonal Vending Committes.  At one stage

we considered to leave the matter to be considered by the Ward Vending

Committees which are 134 in number but the volume being too large we

think  it  fit  to  leave  it  to  the  Zonal  Vending  Committees  to  do  such

exercise  as  to  whether  in  any  particular  area,  the  area  of  the  actual

footpath being used by pedestrian could be reduced from 5 ft. to a lesser

area  so  as  to  make  the  balance  area  available  to  accommodate  more

hawkers.   While  making  a  study  in  that  regard  the  Zonal  Vending

Page 15 of 20

Committee  shall  consider  all  factors  including  the  interest  and  the

requirement of the pedestrian using the footpath in a particular area.  The

said  Zonal  Vending  Committee  after  making  proper  and  appropriate

study of  the  prayer for  reduction of the  width  of the  footpath for  the

pedestrian would submit their report to this Court within three months

from the date of receipt of a copy of this order whereupon appropriate

orders shall be passed in that regard.   

23. So  far  the  prayer  of  the  MCD  with  regard  to  the  transfer  of

tehbazari/vending sites to the non-family members as per the Scheme of

the  MCD is  concerned,  this  Court  passed  an  order  dated  06.02.2007

barring transfer  of  tehbazari/vending sites  which was reiterated  in  the

order dated 17.05.2007.  The said orders were meant to be prospective in

nature  and,  therefore,  if  any  such  tehbazari/vending  sites  were

transferred prior to 06.02.2007 the same could be considered as a valid

transfer.  But, in any case, no transfer made after 06.02.2007 by way of

change of hands,  sale etc.  would be allowed and any such transfer,  if

made, would be illegal.   Persons found to have been transferred their

tehbazari/vending sites after 06.02.2007 could be evicted as per the due

process  of  law.   We believe  that  the  aforesaid  order  which  we  have

passed  with  a  cut  of  date  of  06.02.2007  directing  for  legalizing  any

Page 16 of 20

transfer made prior to 06.02.2007 and declaring all subsequent transfers

as illegal and invalid would likely to cause the process of allotment of

new tehbazari/vending sites smooth and easy.

24. So far  the  contention  with  regard  to  applicability  of  the  Delhi  Act is

concerned,  the  same  lapsed  on  31.12.2008  and  was  subsequently

extended till December, 2009.  Needless to say, the said law will have to

be  given  effect  to  as  it  is  a  Central  law  and  would  definitely  have

primacy over the administrative orders.  The provisions of the Delhi Act

have to be implemented and, therefore, none of the orders passed by us

would be deemed to have been passed in derogation or contrary to the

provisions of the Delhi Act.

25. We  observe  that  when  the  Ward  Vending  Committees  hold  their

meeting,  advance notice thereof with sufficient time should always be

given  to  its  members  and  the  minutes  of  the  said  meeting  shall  be

recorded and record thereof shall be maintained.   

26. With  regard  to  the  suggestion  that  is  given  by  Manushi  Sangathan

regarding maintaining a photo census of all the squatters and hawkers

allotted with the tehbazari/vending sites, we find that the said suggestion

Page 17 of 20

is  fair  and  reasonable  and  many problems  being  faced  by  the  MCD

regarding illegal  transfer,  sale  etc.  would  be  taken care  of  if  a  photo

census of all the squatters and hawkers given the tehbazari/vending sites

is made compulsory and properly maintained.  We direct MCD to take

immediate  steps  for  carrying  out  photo  census  of  all  the  existing

squatters and hawkers allotted with tehbazari/vending sites.  The photo

census shall be compulsory for all future allotment also, if any.  MCD

shall also maintain proper records of the photo census.

27. So far as the establishment of the weekly markets and giving preference

to women vendors are concerned, this Court has already taken notice of

the said submissions and has passed effective orders in that regard.  We

make it clear that it is for the MCD to consider the aforesaid request and

to take appropriate decisions in that regard for we do not intend to pass

any such order as the same is, in our considered opinion, in the domain

of policy decision.   

28. In terms of the aforesaid order the applications registered as I.A.No. 1 in

I.A.  No.  407  in  W.P.(C)  No.  1699/1987  with  I.A.No.1  &  C.P.(C)

No. 170/2007 in I.A. No. 394 in I.A. No. 356 in W.P.(C) No. 1699/1987,

Contempt Petition (Civil) No.323/2007 in W.P.(C) No. 1699/1987 with

Page 18 of 20

I.A. No. 366 in W.P.(C) No. 1699/1987, I.A. No. 367 in W.P.(C) No.

1699/1987,  Contempt  Petition  (Civil)  No.  126/2001,  I.A.  No.  361  in

W.P.(C)               No. 1699/1987, I.A. Nos. 372-373 in W.P.(C) No.

1699/1987,  I.A.  No.  389  in  W.P.(C)  No.  1699/1987,  I.A.  No.  392 in

W.P.(C)  No.  1699/1987  with  W.P.(C)  No.  535/2001,  W.P.(C)  No.

240/2004, I.A. Nos. 397-398 in W.P.(C) No. 1699/1987, I.A. No. 399 in

I.A. No. 394 in W.P.(C)               No. 1699/1987, I.A. Nos. 1-2 in W.P.

(C) No. 100/2002, I.A.No..../2005 in I.A.No. 394 in I.A.No. 356 in W.P.

(C)  No.  1699/1987,  I.A.No..../2005  in  I.A.No.  394  in  I.A.No.  356  in

W.P.(C)  No. 1699/1987,  I.A.  No.400 in  W.P.(C)  No. 1699/1987 with

I.A. No.401 in I.A. No. 396 in C.P.              No. 506/2002 with I.A.

No..... in C.P. No. 506/2002, I.A. No.402 in W.P.(C) No. 1699/1987 with

W.P.(C) No. 414/2006 with  I.A. No.403 in  W.P.(C)   No. 1699/1987

with I.A. No.404 in W.P.(C) No. 1699/1987 with I.A. No.406 in W.P.(C)

No. 1699/1987 with I.A. Nos.408-409 in W.P.(C)        No. 1699/1987,

I.A. No.410 in W.P.(C) No. 1699/1987 with Contempt Petition (Civil)

No.183  in  W.P.(C)  No.  1699/1987  with  C.P.  (C)       No.......(D.

No.4361/2009) in W.P.(C) No. 1699/1987 are disposed of.    

………………………..J.                      [S.B. Sinha]

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  ...………………………J.            [Dr. Mukundakam Sharma]

New Delhi, April 9, 2009

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