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PETITIONER: SODAN SINGH

       Vs.

RESPONDENT: N.D.M.C. & OTHERS

DATE OF JUDGMENT:       04/02/1998

BENCH: S.B. MAJMUDAR, M. JAGANNADHA RAO.

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M. JAGANNADHA RAO, J. I. 83/1995: (Bishwanath Roy)      Clemant has  been found  eligible but only for business in ‘tea’.  The applicant’s place of garment business war not accepted. According to  him he cannot, due to illness, carry on tea business.      The Committee  found in its order dated 12.12.1990 that the applicant  did  the  business  form  1980  to  1989  was entitled only to trade only in tea and could get a stall/kiosk for tea business in I.O.B. area.      Petitioner then  applied to NDMC on 9.3.1994 for change of trade  to ’garments’ on account of ill-health-NDMC filled reply dated  2.8.1995 before the Thareja Committee that they can consider  change of  trade form food items to other item only if  no objection  is given  by  Thareja  Committee  and thereafter they will consider the case on merits.      Committee noted  the submissions  on 2.8.1995  and said that the matter will be dealt with in main Report.      At pp.  41-42 of the main Report, the Committee pointed out that  NDMC wanted  to have  the discretion  in regard to applications for  change of  trade to be totally reserved to it. The  Committee said that if discretion it to be given to he NDMC  it is  most likely  that it  will  be  abused.  For example, the  Committee said, if garment trade is allowed at Indian Oil Bhawan, a squatter can earn Rs. 2000/- per day.      We agree  that the  right to  carry  on  trade  in  any permissible commodity  cannot be  allowed to  be  controlled totally by  the NDMC  at its  sweet will. There is as yet no law made under Article 19(6), except the scheme framed under orders of  this Court  by the  NDMC. Therefore,  if a trader wants change  in the  trade, we  do not  see how  it can  be rejected, as  long as it is a permissible trade. Such change of trade  has to be granted subject of course, to any lawful conditions that  the licensing  authority could impost. What we have said above is, of course subject to the terms of the scheme regarding  licensable or  non-licensable tradings and also subject  to the  earlier observations  of this Court in the first  Sodan Singh’s  Case that  the scheme is not meant for luxury items or smuggled goods.

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    We, therefore,  hold that  the applicant’s  application for change  of trade to ‘garments’ cannot be denied. When he is an eligible squatter, there is no question of restricting his trade  to tea  business only. The NDMC will issue orders of change  in trade  from tea  to garments   because  it had taken a stand earlier in its reply dated 2.8.1995 before the Thareja committee  that it  will take  up the  matter as add when no  objection is  received from  the Thareja Committee. This IA  is therefore allowed accordingly directing the NDMC to permit  change in  trade to  ’garments’  so  far  as  the petitioner is concerned.      In case  any change  of trade is disallowed and parties are  aggrieved,   they  shall   be  entitled  to  resort  to appropriate legal  remedies, subject  to the principles laid down above. IA allowed as stated above. IA 114.1997 (Smt. Laxmi & 30 Others)      This IA  is  by  the  verified  eligible  squatters  as declared by  the Thareja Committee. Their contention is that various states were referred to by the NDMC in its scheme of place submitted  to the  Court on  14.2.1997 but in a latter scheme date  21.7.1997 of the places, Site No. 1 adjacent to boundary wall  of NDMC  parking and  Jeevan Bharti - towards existing tehbazari sites/shops and also towards mochi tharas sites -  for four  kiosk-22 tehbazari, has now been omitted. It is  pointed out further that this site which was accepted by the Thareja Committee in its report at various places (p. 105, 108, 110, 115 of its repot) is now included in the list of objectionable items, at serial No, 33.      In view of the rejections of the objections of the NDMC in regard  to the various places, we accept this application and the  proposal to  delete site  No. 1 of the scheme dated 14.2.1997 is rejected. Site No. 1 shall remain as one of the accepted sites. IA is disposed of accordingly.      I.A. 33/994: (Shiv Kumar Sharma).      The claim  of the  petitioner has  been rejected by the Thareja Committee  on the  ground  that  petitiner  produced evidence of  squatting only  from 1986,  1987 and  not after 1988 upto  1992, his  calaim has been rejected on the ground that for  the period  (the 3rd category) of  1981-87, he had shown evidence only for 2 years.      A principle  that only  a  gap  of  one  year  will  be condoned  has   been  followed   by  the  Thareja  Committee uniformly. The  Committee also  found it  necessary that the squatting or  hawking of  those in  the three groups must be upto the  date of  inquiry. Were  of  the  view  that  these principles are  relevant and  has been uniformly applied. We have dealt  with this  aspect in  out main order also. Hence the rejection  of the  petitioner’s case  does not  call for interference. IA is rejected. I.A. 38 of 1994 (Sanjay Pamnani)      The petitioner  has been  found  eligible  but  he  was selling  lotteries.   Counsel  for  petitioner  agreed  that petitioner will apply for change into another trade which is permissible in  law. He  will apply  to the NDMC accordingly and if  the trade for which change is applied is lawful, the NDMC shall permit the same. (In fact, the question of change of trade  from lottery  was also  there in IA No. 89/96 & IA No.  122/96   and  the  said  parties  have  also  to  apply separately). Directions in this behalf are also contained in an general  order passed  in the main Civil Appeal today. IA disposed of accordingly.      I.A. 45-46 - (Vinod Kumar).      I.A. 46 for condonation allowed.      The petitioner  is found  to be  a genuine squatter but not eligible  because he  had no proof after May 1988 and he

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produced only  photo copies  for 1987-88. We are of the view that the  rejection of his claim by the Thareja Committee is correct and  the case  does not  warrant interference. IA is rejected accordingly.      I.As 47-48: (Satya Narain Vijay).      In this case, the claimant  has been found eligible for a size  of  6’ x 4’ to carry on trade of book and magazines, with stationery from 17.2.1983.      His case  will be  governed by  the general  directions given in the main order IA disposed of accordingly.      I.A. 56-57: (Ram Gopal)      I.A. 58-59: (Ram Gopal)      The claim of the petitioner was rejected by the Thareja Committee on 15.4.1991. Review Petition was also rejected on 26.8. 1992.      We have  perused both  the orders.  In the first order, the Committee  has given reasons to show that the petitioner had managed to obtain receipts of another person by name Ram Gopal dealing  with fair  articles at All India Radio. Photo copies were  filed and  not originals. Receipts related only to the  period between  1978 to  1983. The  claimant started squatting in  1988 after  obtaining the  receipts of one Ram Gopal who  was dealing  in Tikki. We do not find any reasons for interference with the findings of fact.      We have  also seen  the order  passed in  review. It is true that  the first  order was  before the  judgment in the second Sudan  Singh’s case  dated 13.3.1992 complaining that the Thareja  Committee was applying very strict standards of proof. But  as stated  in our  main  order,  this  plea  was rejected by this Court in the second Sudan Singh’s case. But as this  Court  permitted  fresh  applications,  the  review petition was  filed. Alongwith  the review  application, the petitioner filed  one cash receipt to say that be bought 800 fashion  pieces   at  Rs.  6/-.  The  Committee  once  again considered the evidence now produced as well as the evidence produced before  the first  order dated  5.4.1991, and  held that there was only one receipt for 3.8.1983 and the rest of the receipts  were from  August 1988:  There was no proof at all from  August 1983  to 1988.  Hence the minimum proof was lacking. The  evidence produced in the review application is not related to any receipts from Government of NDMC.      The petitioner  obtained stay  order from this court on 29.8.1988 and  produced a  large number  of  receipts  after 23.8.1988 and  in the  absence of even one receipt for 1987, the Committee rightly rejected petitioner’s  claim.      It will  be noticed that the three relevant periods are (1) prior  to 1977 (2) 1978-80 and (3) 1981-1987. Petitioner had a gap  of 4 years as he had no receipt after 1983, hence he  cannot  come  in  the  third  category.  Merely  filling receipts after  1988 cannot  help because  there is  no such category falling for consideration.      Hence these applications are rejected. I.A. 62-63: (Shankar  Gupta & Anup Kumar)      The claimants  are brothers  and  the  claim  has  been allowed  by   the  Thareja  Committee  in  its  order  dated 14.2.1994 to  the effect  that they are together entitled to one site 6’ x 4’ with seniority from 4.7. 1964.      In the event of NDMC giving them both, tehbazari rights jointly, then  the  parties  agreed  that  applicant  No.  1 Shankar Gupta  be given  the rights.  Accordingly the relief was granted by the Thareja Committee to Shankar Gupta.      In this  petition  before  us,  It  is  contended  that Shankar Gupta was selling b ooks and magazines in a verandah in N  Block Connaught Circus since 1984 and Anup Kumar since 1086,  in   the  same  verandah,  separately  in  books  and

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magazines. They  are said to at a distance of 25’ x 30’ from each other.      The Committee  agreed to give only one site since prior to  filing  claim  in  1990,  the  brothers  were  joint  in business, both  selling from one site. The conclusion of the Committee that prior to 1990 both were selling at same site, has been attacked as being based on no evidence.      We are  unable to  interfere with  the finding  of  the Committee as  we are not sitting in appeal. As stated in our main order,  it was  intended that  the Thareja  Committee’s decisions would  be  final.  The  Committee  has,  in  fact, examined the  ration cards,  the place  of living,  and  the documents and  what the  parties stated in cross-examination and arrived  at its  findings.  We  cannot  agree  that  the findings are based on no evidence.      Hence these applications are rejected.      I.A. No. 65, 66 : (Laxmi Narain)      The Thareja  Committee, by  its order  dated  5.1.1995, which rum  into nearly  10 pages,  rejected the  case of the petitioner. It was noticed that he applicant’s father Prabhu Dayal had  been allotted  Shop No. 12, Mini Marker, Janpath, in respect  of  same  site  which  the  applicant  has  been occupying and hence, the applicane cannot be given any other site.      Petitioner’s case  before us  is that  his  father  was occupying a  place in the middle of Janpath while petitioner was occupying  a place  at the  corner of Indian Oil Bhawan, near Janpath Lane.      The Thareja  Committee said that  the Committee visited the area  of Indian  Oil Bhawan, during the period, over 100 times. The  inspection notes  are set  out and applicant was never there,.  It was  only on  9.9.1994, the  applicant was found. Otherwise,  only his servants were there. In fact, in the name  of the  applicant, there  is  a  golegapppa  shop, choley-bhaturey shop, Alloo-tikki sh op, a Bhelpuri Shop and dahi-bara   shop. In  addition, applicant has a shop at B-27 Dak Wali  Gali, Shakarpur,  Delhi. It  was rightly  inferred that applicant must have been busy attending to shop No. 12, Mini Market. Janpath of his father while he is running other ships with  servants. The  Committee verified records of the NDMC and  from the  receipts there,  it  was  informed  that applicant was  found doing  business only  at this  father’s place. We  are in  agreement with    the  reasons  given  by Thareja Committee  that the  applicant has  not made out any case for separate allotment of another site. The application is dismissed. I.A. 73: (Kamla Devi)      The  Thareja  Committee,  on  a  consideration  of  the evidence produced, stated that applicant is not a genuine or bonafide squatter  and that  other persons are working under her name.  This was  what was revealed even from inspections by the  Committee  on  various  dates.  We  agree  with  the finding. The I.A. is dismissed.      I.A. 96: (Madan Lal)      I.A. 97: (Chander Pal)      These two  IAs have  been put  by the Thareja Committee under  the   10%  hardship   quota.  We   accept  the   said recommendation. IAs disposed of accordingly. IA 106-107: (Nam Dutt, Hiralal, Sita Ram, Khachera)      These IAs  concern the above said four persons who were petitioner 1,  4, 6  and 9  in Writ Petition 1348/1987 filed earlier in  this Court.  Their cases  were accepted  by  the Thareja  Committee.   Their  cases   for  appropriate  final allotment will  be considered  by the  Chaturvedi Committee. IAs disposed of.

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    IAs 108, 109: (Ramesh Chander)      The Thareja  Committee, in  its order  dated 30.8.1991, found that  this applicant  is entitled to a stall at Malcha Marg or  with seniority  from 2.7.1994. Petitioner has since died.      The Thareja  Committee passed  an  order  allowing  the applicant’s  wife,  Smt.  Surema  Devi  to  ’represent’  but refused to grant any interim relief as she is not personally squatting.      We agree  that she  would be recognised in the place of her deceased  husband and  with the same seniority. Her case for allotment  of stall/kiosk  etc  will  be  considered  in accordance with  the  seniority  of  her  deceased  husband. Matter disposed of accordingly.      I.A. No/1997: (Lalit Kumar & Others)      It was  contended in  this case  that while the Thareja Committee followed a principle of condoning one year gap for each of  the periods  (1) before  1977 (2)  1978-80 and  (3) 1981-87, it was not applying the same rule for those who had been squatting say from 1987 and upto 1996- when the inquiry was completed  and report  was  submitted.  The  matter  was argued at  length by Sri R.F. Nariman. (This aspect has been dealt with in the main order).      Upon hearing  counsel, were  found that  the Committees has followed  the same  principle even  after 1987. In other words for those  who, for example, started squatting in 1987 an d  who continued  upto  say  1996  when  the  inquiry  ws completed, if  there was  a gap of one year, it was condoned but not if there was a gap of more than one year.      In this case, the gap af ter 1987 was for more than one year and the claims were rightly rejected. IA rejected.      I.A. 120/1997 (Jagdish)      Petitioner has  been, in  the order  dated 30.7.1993 of the Thareja  Committee, found  eligible and  entitled  to  a stall. The  IA is filed only because the Committee did not p ass interim others in favour of the petitioner.      We  are   not  passing   any  orders   at  this  stage. petitioner’s case  will be  dealt  with  by  the  Chaturvedi Committee. Petition disposed of accordingly.      IA 125-126/1997: (Smt., Manju Maine)      The case  of the petitioner was rejected by the Thareja Committee by  order date  3.9.1993. The  order runs  into  6 pages and  considers the  evidence in  detail. It  was found that petitioner  manipulated the receipts. We agree with the findings. Application if rejected.      I.A. 67           This is  application  filed  by  Sri  Thareja  fro fixing   remuneration, etc.  for the  work done  after being nominated  to   go  into   various  issues   concerning  the squatters/hawkers in  NDMC area. Inquiry was conducted for a period of more than five years.      During the  course of  the hearing  of the main SLP, we had occasion  to go through the papers and the enormous work done  by   the  Committee  with  great  industry,  care  and commitment to  a cause.  M ore  than 5000  cases  have  been scrutinised and  separate orders passed with reasons. Again, two volumes  of the Report have been submitted to the Court. Elaborate inquiry  was conducted as regards the places where the  a   kiosks/stalls  could  be  located  or  business  or tehbazari could  be conducted.  These  details  are  in  one volume.  Another   volume  deals   with  seniority   of  the claimants. We  have placed on record, in our main order, our deep appreciation of the services rendered by Sri Thareja.      After considering the extent of the work and keeping in mind all  factors including  the fact  that Sri  Thareja was

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working full time on this work and was however receiving his normal emoluments  as  an  Additional  District  &  Sessions Judge. We  are of  the view that a reasonable sum be paid to him in addition to what Sri Thareja h as drawn as his normal emoluments as  a District Judge. We notice that in fact he h ad visited  the various  places  where  the  squatters  were claiming that  they were  conducting their business. Most of them were  surprise visits.  Several hundreds of such visits had to  be made  while checking  up the  claims of more than 5000 claimants.  Keeping all these aspects in mind, were are inclined -  in the place of the quantum claimed - to grant a sum of Rs. 50, 000/- only and we accordingly direct the NDMC to pay  to Sri  Thareja the  said sum  within two weeks from today. The IA is  disposed of accordingly.