GAINDA RAM Vs M.C.D. .
Bench: G.S. SINGHVI,ASOK KUMAR GANGULY, , ,
Case number: W.P.(C) No.-001699-001699 / 1987
Diary number: 61421 / 1987
Advocates: K. N. RAI Vs
INDRA SAWHNEY
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REPORTABLE IN THE SUPREME COURT OF INDIA
ORIGINAL APPELLATE JURISDICTION
I.A. Nos.1, 3 & 4 in I.A. No.1 in I.A. No.407 &
I.A. Nos.9 & 10 in I.A. No.407 IN W.P.(C) NO.1699 OF 1987
Gainda Ram and others ...Petitioner(s) Versus
M.C.D. and others ...Respondent(s)
LETTER NO.34/PS/NDMC/2009 DATED 06.03.2009 received from Smt. Sukhvinder Kaur, DHJS, Presiding Officer, Zonal Vending Committee, NDMC in I.A. 1 in I.A.
No.407 in W.P.(C) No.1699/1987 WITH
I.A. Nos.2 & 3 in I.A. No. 407 in W.P. (Civil) No.1699/1987 I.A. Nos.4 & 5 in I.A. No. 407 in W.P. (Civil) No.1699/1987 I.A. No.6 in I.A. No. 407 in W.P. (Civil) No.1699/1987 I.A. Nos.7 & 8 in I.A. No. 407 in W.P. (Civil) No.1699/1987
WITH W.P.(Civil) No.77 of 2010
And I. A. Nos. 211, 212 & 213 IN C.A. No.560 of 1998
J U D G M E N T GANGULY, J.
1. Hawking on the streets of Delhi, whose
municipal limits have expanded over the
1
years, has been the subject matter of
several proceedings in this Court.
Initially in the early sixties, this
problem surfaced when this Court, hearing
an appeal from a decision dated 4th August,
1966 of the Punjab High Court, Circuit
Bench at Delhi, dealt with this question in
some detail in the case of Pyare Lal vs. New Delhi Municipal Committee and another [AIR 1968 SC 133]. In Pyare Lal (supra), sale of cooked food on public streets which
was creating the problems of unhygienic
conditions came up before this Court in the
context of a resolution of the New Delhi
Municipal Committee stopping such sale. A
three-Judge Bench of this Court held that
no person carrying on the aforesaid
business of selling cooked food has any
fundamental right to carry on street
vending particularly in a manner which
2
creates unsanitary and unhygienic
conditions in the neighbourhood.
2. However, the controversy did not rest
there, nor did the problem of hawking come
to an end in view of Pyare Lal’s judgment. 3. Several cases were filed thereafter in
different Courts and ultimately the leading
decision was rendered in the case of Sodan Singh and others vs. New Delhi Municipal Committee and others [(1989) 4 SCC 155] by a Constitution Bench of this Court.
4. In Sodan Singh (supra) the petitioners, as hawkers, were carrying on business by
squatting on the pavements of Delhi and New
Delhi and those squatters alleged that they
were allowed by the Municipality to carry
on such business on payment of charges
described as Tehbazari. As the Municipal
Authority subsequently refused to permit 3
them to continue their business, that
action of the municipality according to
those petitioners, interfered with their
fundamental right to carry on business
under Articles 19(1)(g) and 21 of the
Constitution of India. The correctness of
the decision in Pyare Lal (supra) was also doubted. As such the matter was placed
before the Constitution Bench.
5. In Sodan Singh (supra) there was a paradigm shift by this Court on the interpretation
of fundamental right of a hawker or a
squatter under Article 19(1)(g) to carry on
business. Various judgments of this Court
were considered and in paragraph 18 (at
page 169 of SCC) Justice Sharma (as His
Lordship then was) delivering the majority
judgment expressly held by referring to
Pyare Lal (supra) that, “we do not agree with these observations.” However, His
4
Lordship was quick to add that in the facts
considered in Pyare Lal (supra) the decision was correct.
6. In our judgment, the decision in Pyare Lal (supra) was thus distinguished and confined
to the facts of that case.
7. However, this Court in Sodan Singh (supra) took a very broad view of a citizens right
under Article 19(1)(g) following its
decisions in the case of Fertilizer Corporation Kamgar Union (Regd.) Sindri & others vs. Union of India and others [(1981) 1 SCC 568] and also the decision of
this Court in K. Rajendran & others vs. State of Tamil Nadu & others [(1982) 2 SCC 273] and the decision of this Court in
Bombay Hawkers’ Union & others versus Bombay Municipal Corporation & others [(1985) 3 SCC 528] and the Constitution
5
Bench decision of this Court in the case of
Olga Tellis & ors. vs. Bombay Municipal Corporation & others [(1985) 3 SCC 545].
8. This Court in Sodan Singh (supra) came to the conclusion that the hawkers and
squatters have a fundamental right to carry
on business on the public street, but the
same should be regulated. It was further
held by Justice Sharma (as His Lordship
then was) that the right of a hawker to
transact business, while going from place
to place, is recognized in India for a long
period. Of course such right is subject to
regulation since public streets demand its
use by the public and the streets are not
meant to facilitate some citizens to carry
on any private business. However, such
right of hawking for carrying on business
on the street cannot be denied if they are
properly regulated. The learned Judge made
6
it very clear that the said right is
subject to reasonable restrictions under
Clause (6) of Article 19. The learned
Judge relying on the ratio in Saghir Ahmad and another vs. State of U.P. and others [AIR 1954 SC 728] held that streets in
India are vested in the municipality and
they have to be used by the municipalities
as trustees. The learned Judge while
delivering the judgment observed:-
“We as a court in a welfare State do realise the hardship to which many of the petitioners may be exposed if they are prevented from carrying on the business. The only solution for this is the adoption of the policy of full employment, which even according to leading economists like Keynes will alleviate the problems of the unemployed to some extent. But as students of economics we also realise that every human activity has the ‘optimum point’ beyond which it becomes wholly unproductive. It is for the government to take reasonable steps to prevent movement of people from rural areas to urban areas. That can be done by the development of urban centres in rural areas removed from each other at least by one hundred miles. This is more a matter of executive policy than for judicial fiat. We hope and trust that in administering the laws in force the authorities will keep in view humane considerations…”
7
9. Justice Kuldip Singh, in a concurring but a
different opinion, interpreted the right
under Article 19(1)(g) as comprehensively
as possible to include all the avenues and
modes through which a man earns his
livelihood excepting of course gambling and
trafficking in women. The learned Judge’s
interpretation of Article 19(1)(g) if we
may say so, with respect, is remarkably
brilliant. His Lordship held, “in a
nutshell the guarantee takes into its fold
any activity carried on by a citizen of
India to earn his living. The activity of
course must be legitimate and not anti-
social like gambling, trafficking in women
and the like. (See para 28 page 174 of the
report).
10. The learned Judge referred to the decision
in Bombay Hawkers’ Union (supra) and also to the decision of this Court in Municipal Corporation of Delhi vs. Gurnam Kaur
8
[(1989) 1 SCC 101] and highlighted the
importance of framing regulations to
regulate hawking business by creating
hawking and non-hawking zones. The learned
Judge in his concurring judgment made a
very pertinent observation after comparing
the position of street trading in India
with that prevailing in other countries and
noted that even in England where there is
complete social security and the citizens
are not driven to the streets to make out a
living out of poverty and sheer
unemployment, street trading is recognized.
Considering that an alarming percentage of
population in our country lives below
poverty line, the learned Judge held that
when the citizens by gathering meager
resources try to employ themselves as
hawkers and street traders, they cannot be
subjected to a deprivation on the pretext
that they have no right. The learned Judge
9
deplored that despite repeated suggestions
by this Court, the Government has not yet
framed regulations for regulating citizen’s
right to carry on hawking business on the
streets.
11. Subsequently, also again this Court had to
deal with large number of petitions filed
by hawkers claiming a right to carry on
business in different parts of the
pavements under the control of Municipal
Corporation of Delhi (MCD) and New Delhi
Municipal Council (NDMC).
12. In Sodan Singh (supra) this Court was of the view that detailed provisions, dealing
with all relevant aspects, and capable of
solving the problems of hawking in a fair
and equitable manner should be made and the
respondents (municipal authorities) should
proceed as soon as it may be possible. This
10
Court felt that municipal authorities would
be well advised to consider suggestions of
the hawkers while finalizing the schemes
with due regard to the requirements of the
relevant laws e.g. Delhi Police Act, 1978,
the Delhi Control of Vehicular and other
Traffic on Roads and Streets Regulations,
1980 etc. The Constitution Bench in Sodan Singh (supra) clarified in paragraph 24 of the judgment that the demand of the
petitioners therein that the hawkers must
be permitted on every road in the city,
could not be allowed, if the road was not
wide enough to conveniently manage the
traffic on it, no hawking may be permitted
at all, or may be sanctioned only once a
week, say on Sundays when the rush
considerably thinned out. Hawking could
also be justifiably prohibited near
hospitals or where necessity of security
measures so demanded. The demand that
11
permission to squat on a particular place
must be on a permanent basis was also
rejected on the ground that circumstances
were likely to change from time to time.
13. Pursuant to the directions of this Hon’ble
Court, a scheme was prepared by the NDMC
vide its Resolution No. 28 dated 10.11.1989
and the same was placed before the Lok
Adalat held at this Hon’ble Court on
November 19, 1989. Thereupon, a general
order was passed by the Lok Adalat after
going through the scheme submitted by NDMC
on the guidelines laid down by this Court
in Sodan Singh (supra) for implementation of the scheme. A committee consisting of
two members of NDMC and a District Judge or
a Higher Judicial Officer was to be
constituted. Decision rendered by the
committee was to be made binding and final.
12
14. It was submitted before the Lok Adalat that
the NDMC did not have sufficient land which
belonged to the Central Government and
unless the Central Government allotted
suitable land, the Municipal Committee was
not in a position to accommodate all the
hawkers/squatters as per the scheme. The
Lok Adalat accordingly suggested that a
request was to be made by the Legal Aid
Committee to the Central Government for the
allotment of land. The NDMC as well was to
approach the Central Government for the
allotment of suitable land in the areas in
which the NDMC could go ahead with this
programme, of accommodating these
hawkers/squatters. These directions appear
from the order of the Lok Adalat.
15. The Judicial Officer for the committee was
to be nominated with the concurrence of the
High Court. Therefore, with the direction
13
of this Hon’ble Court, a Judicial Officer
(Shri G.P. Thareja) was nominated by the
High Court to preside over the Committee
which was constituted for looking into the
matter of hawkers in the NDMC area.
Thereupon, by an order dated 1st February
1990, this Hon’ble Court directed that
because the Committee which had been
constituted as aforesaid had become
functional, such Committee should proceed
to examine the claims of hawkers. As a
matter of first lot, first 100 claims were
to be taken up for examination in view of
the scheme prepared by the Municipal
Committee in terms of the direction of the
Court.
16. Appreciating the fact that since the work
allotted to the Judicial Officer requires
full time engagement, this Court by an
order dated 9.2.1990 issued directions
14
requesting the High Court to relieve the
said Judicial Officer who was appointed
exclusively for the work. In the said
order, directions were also given to the
learned Additional Solicitor General to
find out the possibilities of assigning
land to the Municipal Committee for making
it available for hawking.
17. Thereafter, the said Thareja Committee gave
its interim report to this Court and this
Court in its order dated 29.1.1991 noticed
the said interim report and found that 5000
applications were pending before the
Committee.
18. A complaint was made to this Court that the
Thareja Committee was applying very strict
norms for proof of eligibility. However,
this Court by its order dated 13.3.1992
rejected the said grievance. In order to
15
protect the rights of the genuine
claimants, this Court, after discussing the
report of the Thareja Committee, set out
nine directions. Those directions are as
under:
“(1)Out of the 440 claimants, the one- member Thareja Committee will review the cases of those claimants whose claims have been rejected for non-compliance of the standard of proof laid down by Resolution No. 28, if claimant adduces any other authentic proof in the form of government or local authority records, the genuineness whereof is unimpeachable, and the Committee considers such proof presented to it to be adequate for review. If on perusal such proof is found to be unacceptable, the Committee may refuse to review its decision;
(2) In regard to the Sarojini Nagar claims, the Committee may evolve its own criteria or standard of proof de hors the one laid down by Resolution No. 28 and proceed to dispose of the claims on the basis thereof. In doing so fresh claims, if any, received may also be scrutinised;
(3) Public advertisements will be issued by the Committee in local newspapers having wide circulation inviting claims from squatters/hawkers who have not preferred claims or filed proceedings in court by a date to be stipulated therein, such claims must of course be consistent with the eligibility criteria laid down in Resolution No. 28. In addition to such public advertisement to be issued in newspapers of different languages such as English, Hindi, Urdu, South-Indian
16
languages, etc., to be determined by the Committee, handbills and pamphlets shall also be printed and distributed and pasted in different parts of the five zones selected for squatting/hawking inviting claims by the stipulated date. The advertisements/pamphlets, etc. will also cover claimants falling within directions (1) and (2) above;
(4) The Registry of this Court will not entertain any further Writ Petitions/Special Leave Petitions from any squatter or hawker concerning the sites chosen in the five zones mentioned hereinabove but will instead direct the petitioners to approach the Thareja Committee if they have moved such Writ Petitions/Special Leave Petitions before the date stipulated by the Committee (which date will be communicated to the Registry) and no Writ Petition/Special Leave Petition or any other proceeding shall be entertained by the Registry concerning the sites in the five zones after the stipulated date;
(5) The High Court of Delhi and all courts subordinate thereto will also follow the course of action set out in direction No. 4 hereinabove;
(6) All Writ Petitions/Civil Appeals/ Special Leave Petitions and CMPs/IAs therein which concern the five zones will stand disposed of by this order except one in which orders have been made from time to time and the claimants of all the matters disposed of pursuant to this direction will be at liberty to seek further directions in the one matter kept pending under this direction as interveners in case such need arises in future. This is essential to regulate such cases against NDMC;
17
(7) The interim stay orders will continue in respect of the 224 claimants whose claims have already been scrutinised by the Committee. In respect of the other claimants out of 440 whose claims have been rejected the status quo will be maintained for two months after the stipulated date in respect of those claimants who have sought review on or before the stipulated date. If during the said period of two months the exercise for review cannot be completed, the authorities desirous of taking any action will approach the Committee and seek its approval. If the Committee is of the opinion that there is no prima facie case for review it may permit such action to be taken 10 days thereafter so that the claimant likely to be affected may in the meantime approach the Court and obtain appropriate orders. In respect of all other cases the interim orders, if any, will continue till the Committee has scrutinised their cases and rejected them. Liberty is, however, reserved to NDMC to move for vacating any order if public interest so demands or it is found that the claimant is in any way misusing it;
(8) The Tharjea Committee will draw up a list of squatters/hawkers identified by it as entitled to protection so that their claims can be regulated in future also. In drawing up the list care should be taken to ensure that one and the same person does not secure a double benefit; and
(9) The Committee may also draw up a list of squatters/hawkers on the basis of their actual standing for being accommodated in future as and when there is a vacancy in the available space in the five zones or when such space is expanded or new space within the five zones is cleared for squatting/hawking. The Committee will also suggest sites within the zones, over and above those already identified, which can
18
be made available to accommodate such surplus squatters/hawkers who cannot be accommodated in the five zones on account of paucity of space.”
19. In the meantime, several cases were filed
before this Court. From the judgment of
this Court in Saudan Singh etc. etc. vs. NDMC and others etc. etc., (1992) 2 SCC 458, it appears that it was dealing with
Article 32 petitions along with some
Special Leave Petitions filed impugning the
order of the Delhi High Court. In that
judgment, this Court after considering the
ratio of Sodan Singh (supra) laid down the principle relating to and reasonable
restrictions on street trading, as follows:
“It is, therefore, settled law that every citizen has a right to the use of a public street vested in the State as a beneficiary but this right is subject to such reasonable restrictions as the State may choose to impose. Street-trading is albeit a fundamental right under Article 19(1)(g) of the Constitution but it is subject to reasonable restrictions which the State may choose to impose by virtue of clause (6) of Article 19 of the Constitution. The right to street-trading under Article 19(1)(g) of the Constitution does not, however, extend to a citizen
19
occupying or squatting on any specific place of his choice on the pavement regardless of the rights of others, including pedestrians, to make use of the pavements. In other words the law laid down by the Constitution Bench permits a citizen to hawk on the street pavements by moving from one place to another without being stationary on any part of the pavement vested in the State. After laying down the law on the point in the context of Articles 14, 19 and 21 of the Constitution, the Constitution Bench remitted all the petitions to a proper Division Bench of this Court for final disposal.” (See para 2)
20. In Saudan Singh (supra), this Court took note of the appointment of Thareja
Committee as well as the salient features
of NDMC scheme. These features, noted by
this Court, run as under:
“(A) A squatter up to 1977 shall be eligible for the allotment of a stall/kiosk while the squatters pertaining to the years 1978 till 1980 shall be eligible for Tehbazari site, if no shop/kiosk is available. The squatters squatting since between 1981 to 1987 shall be considered for allotment for a Tehbazari site subject to availability of vacant space. (B) The eligibility of a squatter shall be determined by documents such as receipts issued by the NDMC, Challans by Police and Toleration Permission etc. (C) Only non-licensable trades excluding sophisticated luxury items, imported or smuggled goods shall be permitted i.e.
20
pan, biri, cigarettes, chana, moongfali, hosiery items, toys, small stationery items, lottery tickets, fresh vegetables, uncut fruits, packed bakery items etc. will be allowed. No cooking and sale of food items exposed to dust causing health hazards shall be allowed. Open space measuring 6" x 4" for doing non-licensable trades and 4" x 3" for the trade of pan, biri, cigarettes will be allowed. (D) Not more than one member of the family, as defined by the NDMC, will be eligible for benefit under the Scheme. (E) The following percentage shall be allowed for the purpose of reservation in the allotment.
(a) General Category 60% (b) Schedule Caste/Schedule Tribe 12-1/2% (c) Physically Handicapped 10% (d) Ex-serviceman 2-1/2% (e) War Widows 2% (f) Freedom Fighters 3% (g) Extreme Hardship and Humanitarian
grounds 10%.”
21. In paragraph 10 of the judgment in Saudan Singh (supra), this Court observed that it was dealing with the question of livelihood
and survival of a large number of families
and in such a situation the Court should
adopt a compassionate approach so as to
ensure that genuine hawkers/squatters are
21
not denied their daily bread at the altar
of technicalities, while at the same time
ensuring that those who are out to exploit
and abuse the process of law do not
succeed. To achieve these objectives, the
Court gave certain directions which were
set out hereinabove.
22. The Court also gave directions about
hawkers/squatters, who were carrying on
their business within the administrative
control of MCD. It may be noted that MCD
has, within its jurisdiction, the entire
Union Territory of Delhi excluding the area
within the administrative control of NDMC
and Delhi Cantonment.
23. This Court also noted that after partition
of this country there was a large influx of
population to Delhi and the local authority
was constrained to evolve certain norms to
22
rehabilitate such people. This gave rise to
the Tehbazari system. Keeping this in view,
the MCD evolved a scheme of open Tehbazari
consisting of grant of permission to squat
on an earmarked spot for carrying on
business. On Gazetted holidays, festivals
days and Sundays, permission was given to
squat in various other areas. This system
is known as casual Tehbazari. The Court
noted that for the purpose of such kind of
hawking the city was divided into ten zones
and in all 288 squatting areas were
identified. This Court also noted that MCD
also prepared a scheme for regulating
hawking business in Delhi in different
zones. The scheme was prepared in
consultation with the Commissioner of
Police and the priority of allotment has
been determined on the following lines:
“(1)Persons who have been found squatting between 1970 and 1982 and whose names are contained in the survey report prepared after the survey conducted in 1982 will
23
receive first priority for grant of Tehbazari permission subject to the scrutiny of their claims; (2) Insofar as casual Tehbazari on weekly holidays, festivals/melas, etc. is concerned, as well as at the 67 weekly bazars held, persons availing of the said benefit will continue to be granted the casual or weekly Tehbazari; (3) Squatters who have started squatting/hawking in 1983 onwards and who are found on the date of survey would also be considered for grant of open Tehbazari of 6" x 4" subject to the production of proof of continuous squatting and proof of residence and nationality. Such squatters/hawkers would be granted open Tehbazari subject to availability of space provided they have cleared the dues of the MCD; and (4) Persons who do not fall within the aforesaid three categories would be permitted to apply for hawking licences under Section 420 of the Delhi Municipal Corporation Act, 1957 and their applications would be considered on merit for permission to hawk — not squat — by moving in specified areas with their goods on their heads or on cycles. They will be entitled to hawk with their goods anywhere in the zone in respect of which they have been granted a licence. However, such permission will be subject to any restrictions that may be imposed by the residential associations of different colonies.”
24. In the meantime, the writ petition
No.1699/87 ( Gainda Ram and others vs. MCD) was disposed of by this Court by judgment
24
and order dated 12th May 1993 [(1993) 3 SCC
178].
25. Ultimately, the Thareja Committee examined
5627 claims in great detail and passed
detailed order in every case and in its
final report found that 761 out of 5627
persons were entitled for allotment of
sites and it also found 12 cases of
hardship. The said Committee also
identified 977 sites for squatting in NDMC
area.
26. Those who were aggrieved by the orders of
the Thareja Committee filed IAs before this
Court. As many as 130 IAs were filed before
this Hon’ble Court questioning various
orders of Thareja Committee.
27. In the meantime, another judgment in the
name of Sodan Singh vs. NDMC and others, 25
(1998) 2 SCC 727 was delivered which was in
continuation of its two earlier judgments
concerning the hawkers/squatters in the
public streets in NDMC area. The Court
considered the report of the Thareja
Committee and came to the conclusion that
occupation and places of eligible
squatters, as decided by the Thareja
Committee, is only tentative. However, the
Court accepted the procedure recommended by
the Thareja Committee and also accepted its
recommendation about payment of arrears of
dues towards Tehbazari and also noted its
recommendation that in case of failure to
pay such dues the claimant is not entitled
to the benefit under the scheme. The Court
directed certain procedures to be followed
for the purpose of making final allotment
of sites. One of them is issuance of public
notice for allotment of sites, the other
procedure is for payment of arrears of
26
Tehbazari. The Court also prescribed a cut-
off date for filing of application and
further directed notice of hearing to the
petitioners. The Court also held that the
right of the traders to change their trade
is subject to reasonable restrictions under
Article 19(6).
28. The Court thereafter nominated another
Judicial Officer Shri V.C. Chaturvedi to
undertake various duties and functions
enumerated in its order and in paragraph 52
page 741 of the report gave the summary of
procedure to be followed by the Chaturvedi
Committee, which are set out:
1. Shri Chaturvedi Committee (sole member) shall issue public notice in an English and a Hindi newspaper (expenses to be borne by the NDMC) within 15 days from today permitting the eligible claimants so found eligible by the Thareja Committee to submit their applications in Part I containing options in regard to the identified places and sizes (whether 6' x 4' or 4' x 3') in the particular zone to which these claims belong. The public notice in the newspaper will state that the details regarding the available sites
27
and their location and size is put up on the notice boards of the NDMC at various places, whose addresses are given. The notice will also require the claimants to state in Part II of their applications the details as to payment of Tehbazari charges due after 1-1-1990 and if there are or not any arrears as on date. The notice will also be put up in the various offices of the NDMC within the abovesaid period. The notice in NDMC office will also give a detailed list of the places available for squatting/hawking and stating whether it is a kiosk/stall or a place for mere vending on Tehbazari basis as decided by the Thareja Committee and indicating their sizes (6' x 4' or 4' x 3').
2. The eligible claimants will be given 3 weeks’ time to file in Part I of their application their three options, indicating the zone concerned, their seniority as decided by the Thareja Committee, stating whether they come under any reservation category, the type of trade they have been trading in or the new trade for which they have applied to the NDMC and such other particulars as may be called for or relevant. In Part II the eligible claimants shall specify if they have made payments of Tehbazari arrears due for the period after 1-1-1990 and if there are any arrears as on date.
3. After receipt of the claims, the Committee shall issue notice to the parties concerned and the NDMC in regard to each of the places at which squatting/hawking is permitted as per the Thareja Committee Report and decide on the basis of seniority and reservation, the size of place and such other relevant material as may be placed before the Committee, as to who should be allotted what place. The Committee shall fix up dates of hearing by issuing registered A.D. notices to the parties concerned.
28
(The expenditure in this behalf shall be borne by the NDMC.) The Committee shall give an opportunity of being heard and pass reasoned orders and its decisions shall be final and shall not be questioned before any other authority, tribunal, court, nor the High Court nor in this Court.
4. It shall however be open to Shri Chaturvedi to obtain, if necessary, such directions or clarifications from this Court by way of filing IAs in this SLP, even though it is now disposed of.
5. The claimants will be permitted to appear before the Chaturvedi Committee either in person or through their counsel.
6. In case it is decided by the Chaturvedi Committee after the hearing of the case in Part II that any eligible claimant is in arrears of Tehbazari dues for any period after 1-1-1990 then the said Committee shall fix a date before which the arrears have to be paid and informing that if the amount is not paid by that date, the claimant will lose his claim for the kiosk/stall or for the place. In case the claimant defaults in payment by such date fixed and the claimant’s rights cease as stated above, the Chaturvedi Committee will consider if the vacancy can be allotted to any other claimant already declared eligible by the Thareja Committee.
7. In case any of the places found eligible for kiosks/stalls by the Thareja Committee are not accepted by the Urban Arts Commission or the Archaeological Survey of India and the Department of Archaeology of the Government of N.C.T., the said places meant for kiosks/stalls shall be available for Tehbazari and the
29
Chaturvedi Committee shall pass appropriate orders of allotment on that basis. As and when the abovesaid authorities inform the NDMC that the places earmarked for kiosks/stalls are not acceptable for that purpose, the NDMC shall inform the Chaturvedi Committee about the said decision. (We have already observed that pending construction of kiosk/stall the claimant tentatively allotted the place or other person authorisedly using the place for vending on Tehbazari, shall continue. We also said unauthorised persons vending at these places be evicted by the NDMC forthwith.)
For the purpose of obtaining clearance for the said authority, the NDMC is granted time up to 30-6-1998 and for construction of the kiosks/stalls up to 31-10-1998.
8. In regard to eviction of unauthorised squatters or other persons using the places identified by the Thareja Committee the NDMC has undertaken to have them evicted forthwith and in case this is not done, it will be open to the Chaturvedi Committee to bring it to the notice of this Court for appropriate orders, as stated earlier.
9. The NDMC in general and the Director of Estates and the Director of Enforcement in particular will help and implement the decisions, directions or orders of Shri V.C. Chaturvedi. The NDMC shall also provide the other infrastructure to Shri Chaturvedi as stated in the main body of this order and pay his remuneration (in regard to which we are passing separate orders in this SLP).
10. The decisions of the Chaturvedi Committee both on the question of allotment of the kiosks/stalls or the
30
sites for Tehbazari and also as to quantum of arrears of Tehbazari shall be final as indicated in the body of this order and shall not be questioned either by the claimants or the NDMC before any authority, tribunal, court of law, the High Court or in this Court. No petition shall be registered in this behalf by the above bodies. We have only permitted the Chaturvedi Committee to file IAs in the appeal seeking any direction or clarification and none others. So far as orders of NDMC in regard to change of trade, it is open to the affected parties to resort to all appropriate remedies. We have so permitted Shri Chaturvedi to move this Court in certain respects.
29. Again the matter came before this Court in
IA No.394 in I.A. No.356 in WP (Civil)
No.1699/1987 (Sudhir Madan and others vs.
Municipal Corporation of Delhi and others).
In that matter the Court on 03.03.2006
observed that it was not possible to look
into each individual grievance and the
proceeding being a Public Interest
Litigation, the Court was to provide
guidelines consistent with the public
interest so that the roads, streets, paths,
31
parks etc. are not occupied by unauthorised
hawkers. The Court tried to balance between
the hawkers’ right to hawk on the streets
and the right of the pedestrians, who were
larger in number to use the streets. The
Court, therefore, held that if it was
consistent with the rights of the citizens
to provide any space to the hawkers, then
that could be done by the authorities. The
Court directed the authorities to frame a
scheme keeping all these factors in mind,
and also bearing in mind the National
Policy on Urban Street Vendors, 2004
(hereinafter “2004 Policy”).
30. Pursuant to such orders, NDMC and MCD
framed schemes for hawkers and squatters
following the 2004 Policy. Thereafter, the
matter was taken up by this Court from time
to time, wherein it was discussed and
certain modifications were suggested, which
32
subsequently were incorporated in the
scheme.
31. On 17.05.2007 this Court rejected the
prayer of the hawkers to re-identify the
site relying upon the orders dated
06.11.2000 passed in Ramesh Shah vs. MCD and others (IA No. 332-333 in WP (Civil) No. 1699/1987), while at the same time
approving the schemes framed by the NDMC
and the MCD.
32. By the order dated 17.05.2007 the municipal
authorities were directed to implement the
scheme as approved by the Court. Since the
NDMC area had three legislative
constituencies, this Court accordingly
directed the setting up of three Zonal
Vending Committees as per the scheme
prepared by the NDMC. Thereafter the Court
vide its order dated 23.01.2008 asked NDMC
33
and MCD to file status reports about the
implementation of the scheme. Pursuant to
the direction of this Court by order dated
08.05.2008, Mrs. Sukhvinder Kaur, a member
of the Delhi Higher Judicial Services was
nominated by the High Court as the
Presiding Officer of the Zonal Vending
Committees in NDMC area.
33. The main function of the Vending Committees
was to verify the vending sites and hawking
zones in the NDMC area. Its other function
was to scrutinize application for allotment
of the sites.
34. Both, the NDMC and MCD, are statutory
bodies under The New Delhi Municipal
Council Act, 1994 (hereinafter, ‘NDMC Act’)
and The Delhi Municipal Corporation Act,
1957 (hereinafter ‘DMC Act’) respectively.
34
Both the acts are parliamentary
legislations.
35. MCD was established under Section 3 of the
Act as a body corporate composing of
Councillors. Under DMC Act a public street
means a street which vests in the
Corporation as a public street or the soil
below, the surface of which vests in the
Corporation and which under the provision
of the Act becomes or is declared to be a
public street (See Section 2(44) of the
Act).
36. All public streets vest in the Corporation
under Section 298 of the Act. Section 42 of
the Act enumerates the obligatory functions
of the Corporation, one of which is the
removal of obstructions and projections in
or upon the streets, bridges and other
public places [See Section 42(p)].
35
37. Under Section 320(1) of the Act there is a
clear mandate that no person shall, except
with the permission of the Commissioner,
and on payment of such fee as he or she, in
each case, thinks fit, place or deposit
upon any street or upon any open channel,
drain or well in any street or upon any
public place in stall, chair, bench, box,
ladder, bale or other things whatsoever so
as to form an obstruction thereto and
encroachment thereon. Section 322 of the
Act also empowers Commissioner to remove
any stall, chair, bench, box, ladder, bale
or anything whatsoever placed, deposited or
projected in, upon, from or to any place in
the street. If it has been placed in
contravention of the Act, the Commissioner
can remove any article hawked or exposed
for sale on any public street or in any
other place in contravention of this Act
36
along with any vehicle, package or box or
any other thing in or on which such article
is placed.
38. Under Section 481 of the said Act, the
Corporation may frame bye-laws relating to
permission, regulation or prohibition of
use or occupation of any street or place by
itinerant vendors/hawkers or by any person,
for the sale of articles or the exercise of
any calling or the sitting of any booth or
stall and make regulation for fees
chargeable for such occupation. (See the
provision of Section 481E(5) of the Act)
39. Under the NDMC Act almost similar
provisions are there. Definition of public
street under Section 2(39) of NDMC Act is
virtually the same as the definition of
public street under Section 2(44) of the
DMC Act. Similarly under Section 3 of the
NDMC Act, NDMC has been formed as a body
37
corporate having perpetual succession and a
common seal. NDMC is also equally
empowered to remove obstructions and
projections in and upon the streets,
bridges and other public places. In fact
it is one of the obligatory functions of
NDMC.
40. Under Section 202 of the NDMC Act all
public streets vest in the Council. The
NDMC Act also contains similar provisions
prohibiting erection of structures/fixtures
which causes obstructions in the street.
(See Section 224. Sections 225 and 226 of
NDMC have been referred to already).
41. The NDMC is also authorized to prevent any
nuisance in any public street or public
place, or picketing of animals or
collection of carts, displacement, damaging
38
or making any alteration to the pavement,
water-drain etc. without any authority.
(See Section 308(viii) of the Act.
Reference to Section 330 of the Act has
been already made)
42. It has been held by the Constitution Bench
of this Court in Sodan Singh (supra) that right to hawk on the streets of Delhi is a
fundamental right under Article 19(1)(g) of
the Constitution but such right is not
absolute and is subject to reasonable
restrictions under Article 19(6) of the
Constitution.
43. On a perusal of the aforesaid
constitutional provision, it is clear that
the rights under Article 19(1)(g) can only
be controlled by law as contemplated in
Article 19(6). Such law can impose
39
reasonable restrictions. The relevant
constitutional provisions are set out:-
“19(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, -
(i)_the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.”
44. On an analysis of the provisions under
Article 19(6), it is clear that the
provisions under Article 19(6) are broadly
in two parts. The first part authorizes
that nothing in sub-clause (g) of Article
19(1) shall affect the operation of
existing law in so far it imposes
reasonable restrictions, in the interest of
40
general public, on rights conferred by
Article 19(1)(g). The second part is that
nothing contained in Article 19(1)(g) shall
prevent the State from making any law
imposing, in the interest of general
public, reasonable restrictions on the
exercise of rights conferred by Article
19(1)(g). Here we are not concerned with
clauses (i) and (ii) of Article 19(6).
45. It is, therefore, clear that reasonable
restrictions on the fundamental right under
Article 19(1)(g) can be imposed either by
existing law or by a law which may be made
by a State in the interest of general
public.
46. Therefore, nothing short of law can impose
reasonable restrictions on a citizen’s
fundamental right to carry on hawking under
Article 19(1)(g) of the Constitution.
41
47. In Bijoe Emmanuel and others vs. State of Kerala and others (AIR 1987 SC 748) this Court held, “the law is now well settled
that any law which may be made under
clauses (2) to (6) of Article 19 to
regulate the exercise of the right to the
freedoms guaranteed by Article 19(1)(a) to
(e) and (g) must be a law having statutory
force and not a mere executive or
departmental instructions.” (para 15 page
753)
48. In coming to the aforesaid formulation in
Bijoe Emmanuel (supra) this Court relied on two Constitution Bench decisions of this
Court in the case of Kameshwar Prasad and others vs. State of Bihar and another (AIR 1962 SC 1166) and another Constitution
Bench decision of this Court in Kharak
42
Singh vs. State of U.P. and others (AIR 1963 SC 1295).
49. In the instant case, this Court has
discussed the legal provisions in the NDMC
and DMC Act which seek to control the
fundamental right of the petitioners to
carry on their business of hawking.
50. As stated earlier the scheme which was
framed by NDMC for regulation of squatting
and hawking in the NDMC areas was on the
basis of guidelines given by this Court in
its judgment dated 30th August 1989 in Sodan Singh’s case. In that scheme NDMC has divided its area into four zones and some
of the zones have been made non-hawking
zones. From time to time the said scheme
has been modified by the orders passed by
this Court. This Court also finds that
subsequently another scheme was prepared by
the NDMC pursuant to the 2004 Policy. In
43
the said scheme the NDMC has referred to
Sections 225 and 330 of the NDMC Act.
Section 225 of the Act permits squatting
only on the permission given by the
Chairman and on payment of such fees in
each case as a Chairman may think fit.
Section 330 of the Act provides for licence
for hawking articles etc. The said Section
330 authorizes the NDMC to prevent hawking
unless there is a licence to that effect
granted by the Chairperson.
51. As per Section 226 of the NDMC, Chairperson
may without notice cause removal of
articles kept in the public street and
Section 369(2) of the Act provides for
punishment for contravention of the
provision of the Section 225(1).
52. The 2004 Policy provides for setting up of
a vending committee which may consist of
representatives of (a) Municipal Authority,
44
(b) Traffic and Local Police, (c) Public
and owning authority, (d) Associations of
traders, residents and also of street
vendors both static and mobile. The
function of such vending committing shall
include:
“(i)Demarcation of vending and non-vending areas;
(ii)Provision and identification of space for squatting and areas for hawking. Provisions for space may include temporary designations as Vendor markets (e.g. as weekly markets) whose use at other time may be different (e.g. Public Parks, Parking lots) etc.;
(iii) Timing restrictions on the urban vending. It should correspond to needs of ensuring non-congestion of public spaces;
(iv) Public hygiene and cleanliness; (v) Ensure continuation and upgradation
of weekly markets; (vi) Quantitative norms i.e. where to
allow, how many squatters or persons;
(vii) Qualitative guidelines:- This has to include
- Provision for solid waste disposals, - Public toilets to maintain
cleanliness; - Aesthetic design of mobile
stalls/push carts; - Provision for electricity; - Provision for protective cover to
protect their wares as well as 45
themselves from heat, rain, dust etc;
(viii) Regulatory Process; (ix) Registration system; (x) Corrective mechanism against
defiance by vendors; (xi) Collection of revenues and (xii) Monitoring mechanism.”
53. The 2004 Policy has also referred to the
Master Plan of Delhi, 2021 which provides
for informal sector in trade in the planned
development of various zones. In the said
policy, there is also a division between
vending and non-vending areas and it is
made clear that no hawking licence shall be
issued in non-vending areas. The timing and
the day of hawking was also to be regulated
as per the suggestions of Residents Welfare
Association (RWA).
54. Neither the said policy nor the scheme
framed by the NDMC can be called law,
except of course the provisions of Sections
225, 226, 330 and 369(2) of NDMC Act
mentioned hereinabove.
46
55. Section 388 of the NDMC Act empowers the
NDMC to frame bye-laws. This power is
categorized under different clauses of sub-
section 1 of Section 388. Under clause (D)
of the said sub-section there is a
provision for making bye-laws relating to
the streets. Section 388(1)(D)(5) of NDMC
Act provides as follows:
“388(1)(D)(5) the permission, regulation or prohibition or use or occupation of any street or place by it, itinerant vendors or hawkers or by any person for the sale of articles or the exercise of any calling or the setting up of any booth or stall and the fees chargeable for such occupation;”
56. The bye-laws have to be laid before
Parliament under Section 389 of the said
Act. These bye-laws may have the status of
subordinate or delegated legislation.
Penalty has been provided for breach of
bye-laws under Section 390 of the Act.
47
57. It does not appear that the NDMC has made
any bye-law under Section 388 of the NDMC
Act so as to regulate the fundamental right
of the hawkers to hawk or squat on the
streets of Delhi. The schemes which have
been framed under the direction of this
Court or the 2004 Policy which has been
framed by the Government, cannot said to be
framed under the said power to frame bye-
laws and do not have the status of law or
even subordinate legislation.
58. The Master Plan of Delhi, 2021 however,
provides for the accommodation of the
informal sector wherein it states for
suitable public conveniences and solid
waste disposal and arrangements apart from
formulation of guidelines for schemes which
would include hawking and no hawking zones.
The Master Plan also seeks to define the
role and responsibility of NGOs along with
48
the specific obligation of the hawkers
towards society for maintenance of law and
order within the hawking zones and weekly
markets. There was also provision for
informal bazaar in new urban areas.
59. Subsequent to the 2004 Policy a new
National Policy on Urban Street Vendors,
2009 (hereinafter “2009 Policy”) was framed
on 17th June 2009. The most important part
of the 2009 Policy is that it recognizes
street vending as an integral and
legitimate part of urban retail trade and
distribution system, even when otherwise
street vending is sometimes projected as a
major menace in urban areas aggravating
traffic problems. But the 2009 Policy aims
at giving the street vendors a legal status
by providing them legitimate vending and
hawking zones in the city in the town
master plans and development plans.
49
60. The National Policy, therefore, directs
“Municipal Authorities should frame
necessary rules for regulating entry of
street vendors on a time sharing basis in
designated vending zones keeping in view
three broad categories – registered vendors
who have secured a license for a specified
site/stall; registered street vendors in a
zone on a time sharing basis; and
registered mobile street vendors visiting
one or the other vending zone;”.
61. The Policy, therefore, seeks to
institutionalize a part of the urban street
vending through legislation. The objects of
the policy are as follows:
3.1 Overarching Objective
The overarching objective to be achieved through this Policy is:
50
To provide for and promote a supportive environment for the vast mass of urban street vendors to carry out their vocation while at the same time insuring that their vending activities do not lead to overcrowding and unsanitary conditions in public spaces and streets.
3.2 Specific Objectives
This Policy aims to develop a legal framework through a model law on street vending which can be adopted by States/Union Territories with suitable modifications to take into account their geographical/local conditions. The specific objectives of this Policy arc elaborated as follows:
a) Legal Status: To give street vendors a legal status by formulating an appropriate law and thereby providing for legitimate vending/hawking zones in city/town master or development plans including zonal, local and layout plans and ensuring their enforcement;
b) Civic Facilities: To provide civic facilities for appropriate use of identified spaces as vending/hawking zones, vendors' markets or vending areas in accordance with city/town master plans including zonal, local and layout plans;
c) Transparent Regulation: 51
To eschew imposing numerical limits on access to public spaces by discretionary licenses, and instead moving to nominal fee-based regulation of access, where previous occupancy of space by the street vendors determines the allocation of space or creating new informal sector markets where space access is on a temporary turn- by-turn basis. All allotments of space, whether permanent or temporary should be based on payment of a prescribed fee fixed by the local authority on the recommendations of the Town Vending Committee to be constituted under this policy;
d) Organization of Vendors: To promote, where necessary, organizations of street vendors e.g. unions/co- operatives/associations and other forms of organizations to facilitate their collective empowerment;
e) Participative Processes: To set up participatory processes that involve firstly, local authority, planning authority and police; secondly, associations of street vendors; thirdly, resident welfare associations and fourthly, other civil society organisations such as NGOs, representatives of professional groups (such as lawyers, doctors, town planners, architects etc.), representatives of trade and commerce, representatives of scheduled banks and eminent citizens;
52
f) Self-Regulation: To promote norms of civic discipline by institutionalizing mechanisms of self- management and self-regulation in matters relating to hygiene, including waste disposal etc. amongst street vendors both in the individually allotted areas as well as vending zones/clusters with collective responsibility for the entire vending zone/cluster; and
g) Promotional Measures: To promote access of street vendors to such services as credit, skill development, housing, social security and capacity building. For such promotion, the services of Self Help Groups (SHGs)/Co- operatives/ Federations/Micro Finance Institutions (MFIs), Training Institutes etc. should be encouraged.
62. A law has been enacted under the name and
style of a National Capital Territory of
Delhi Laws (Special Provisions) Second Act
2009 on 23rd December 2009. This law makes
special provisions for the National Capital
Territory of Delhi for a period up to 31st
December 2010. It is, therefore, clear that
the said law is for temporary period. From
the preamble of the law, it will appear 53
that whereas a strategy and a scheme has
been prepared by the local authorities in
the National Capital Territory of Delhi for
regulation of urban street vendors in
accordance with national policy for urban
street vendors and the Master Plan for
Delhi, 2021 and it has also been provided
that whereas more time is required for
orderly implementation of the scheme
regarding hawkers and urban street vendors
and for regulation of unauthorized
colonies, the said law shall have effect
only up to 31st December 2010. Section
3(1)(b) of the said Act provides as
follows:
“3(1)(b) scheme and orderly arrangements for regulation of urban street vendors in consonance with the national policy for urban street vendors and hawkers as provided in the Master Plan of Delhi, 2021”.
63. There is a Bill called a Model Street
Vendors (Protection of Livelihood and 54
Regulation of Street Vending) Bill, 2009 by
the Government of India, Ministry of
Housing and Urban Poverty Alleviation. From
the preamble and the long title of the Bill
it appears that the Bill is to provide for
protection of livelihood of urban street
vendors and to regulate street vending and
for matters connected therewith. Now if
the said Bill is enacted in the present
form, the Bill then prima facie recognizes
the rights of hawkers and vendors under
Article 21 of the Constitution since it
seeks to protect their livelihood.
64. In the background of the provisions in the
Bill and the 2009 Policy, it is clear that
an attempt is made to regulate the
fundamental right of street hawking and
street vending by law, since it has been
declared by this Court that the right to
hawk on the streets or right to carry on
55
street vending is part of fundamental right
under Article 19(1)(g).
65. However, till the law is made the attempt
made by NDMC and MCD to regulate this right
by framing schemes which are not statutory
in nature is not exactly within the
contemplation of constitutional provision
discussed above. However, such schemes have
been regulated from time to time by this
Court for several years as pointed out
above. Even, orders passed by this Court,
in trying to regulate such hawking and
street vending, is not law either. At the
same time, there is no denying the fact
that hawking and street vending should be
regulated by law. Such a law is imminently
necessary in public interest.
66. Certain broad facts cannot be lost sight
of. Whatever power this Court may have had,
56
it possibly cannot, in the absence of a
proper statutory framework, control the
ever increasing population of this country.
Similarly this Court cannot control the
influx of people to different metro cities
and towns in search of livelihood in the
background of the huge unemployment problem
in this country. While there is a burning
unemployment on one hand, on the other hand
there is a section of our people, that,
having regard to its ever increasing wealth
and financial strength, is buying any
number of cars, scooters and three
wheelers. No restriction has apparently
been imposed by any law on such purchase of
cars, three wheelers, scooters and cycles.
There is very little scope for expanding
the narrowing road spaces in the
metropolitan cities and towns in India.
Therefore, the problem is acute. On the
one hand there is an exodus of fleeting
57
population to metro cities and towns in
search of employment and on the other hand
with the ever increasing population of cars
and other vehicles in the same cities, the
roads are choked to the brim posing great
hazards to the interest of general public.
In the midst of such near chaos the hawkers
want to sell their goods to make a living.
Most of the hawkers are very poor, a few of
them may have a marginally better financial
position. But by and large they constitute
an unorganized poor sector in our society.
Therefore, structured regulation and
legislation is urgently necessary to
control and regulate fundamental right of
hawking of these vendors and hawkers.
67. This Court finds that innumerable IAs have
been filed in this Court along with various
objections by the hawkers, most of the time
collectively, complaining about steps taken
58
by municipal authorities, namely, NDMC and
MCD to prevent them from hawking and
vending. This Court has tried its best to
somehow deal with the situation. But it is
difficult for this Court to tackle this
huge problem in the absence of a valid law.
The nature of the problem defies a proper
solution by this Court by any judicially
manageable standards.
68. This Court, therefore, disposes of this
writ petition and all the IAs filed with
direction that the problem of hawking and
street vending may be regulated by the
present schemes framed by NDMC and MCD up
to 30th June, 2011. Within that time, the
appropriate Government is to legislate and
bring out the law to regulate hawking and
hawkers’ fundamental right.
59
69. Till such time the grievances of the
hawkers/vendors may be redressed by the
internal dispute redressal mechanisms
provided in the schemes.
70. In the affidavit filed by the MCD, they
have set out the Dispute Redressal
Mechanism as follows:
“a) First Level: 12 Zonal Vending Committees (one in every Zone); headed by Deputy Commissioner of the Zone.
b) Second Level: In case of dispute between the allottee of Tehbazari site and the MCD, the Zonal Vending Committees are headed by the Presiding Officer (in- Service Addl. Distt. & Sessions Judge) Presently Ms. Rekha Rani.
c) Third Level: Appellate Authority headed by a Retd. Judge of the Delhi High Court-presently Shri J.P. Singh.”
71. It has also been stated in the affidavit
that in case any party is aggrieved by the
decision pertaining to above levels, he or
she is free to file an appeal to the higher
level. Such level of Zonal Vending
Committee is headed by Deputy Commissioner
of the concerned zone. If any party is 60
aggrieved by the order/decision of the said
Zonal Vending Committee, he or she can
prefer an appeal with the Zonal Vending
Committee headed by the Presiding Officer
(in-Service Additional District and
Sessions Judge) and thereafter to the
Appellate Authority. In the said affidavit,
which has been filed by Shri K.S. Mehra,
Commissioner of MCD, it has been stated
that the MCD undertakes that in case the
decisions by any of the committees are not
acceptable to the department, the MCD would
file an appeal to the next level. However,
where no appeal is filed, the decision at
the particular level would be final. It has
also been stated in the affidavit by the
MCD that if there is a need for change of
any clause or term of the scheme, the MCD
may do so in terms of the order of this
Court.
61
72. In so far as NDMC is concerned they have
also filed an affidavit, affirmed by Shri
Parimal Rai, Chairman, NDMC. In that
affidavit, they have disclosed another
affidavit which was filed by Shri Parimal
Rai in this writ petition [W.P.(C) No.1699
of 1987], wherein they have given the
details of the Dispute Redressal Mechanism
in paragraph 10, which is set out as
follows:-
“NDMC proposes to implement Adjudicating mechanism in its scheme in a Three-Tier system like the one in MCD Scheme. Proposed Three-Tier system is Three Vending Sub Committees & Vending Committee main and one Appellate Authority over and above the Vending Sub-Committees and Main Vending Committee. The details of this proposed three-tier system is as under:
(i) Vending Sub-Committee (Site of Spaces)
(ii) Vending Sub-Committee (Health and Hygiene)
(iii) Vending sub-Committee (Enforcement)
Functions and compositions of these sub- committees are as under.
62
A. Sites & Spaces:- (a) Functions :-
The sub-committee shall be responsible for recommending to Vending Committee (Main) on the following :-
(i) Identifying spaces of squatting and the areas for hawking in the vending areas specified in para- 4.2.1 of the scheme. These identification shall be as per the paras-3.3 of the scheme. While considering the spaces near the schools, the representative of the Director (Education) shall be co-opted. While determining the spaces near the parks, representative of Director (Horticulture) shall be co-opted. While determining the spaces near the parks, representative of Director (Horticulture) shall be co- opted. Where spaces are to be selected near Hospitals, representative of the Hospital to be included.
(ii) To identify weekly or evening markets.
(iii) To begin with the Committee shall restrict itself to the sites already earlier approved by the Supreme Court excluding the sites deleted by orders of Court or due to security reasons from Parliament Complex and certain areas being declared as non-vending areas and identifying spaces on these sites.
63
(iv) Timings restrictions to ensure that there is no congestion in public places.
(v) Quantitative norms i.e. where to allow and how many squatters or persons at each site.
(b) Composition:- This sub-Committee shall consist of the following members -
• Director (Vending Committee).
• A representative of the MLA of New Delhi Assembly Constituency/Delhi Cantonment Constituency.
• A representative of the traffic police/local police for the NDMC area.
• A representative of the Market Association of the concerned market for which squatting sites are to be identified.
• A representative of the Resident Welfare Association where the vending sites/hawking sites are to be decided in the residential colonies.
• A representative of the authorized hawkers/squatters from the market for which the sites are being identified.
• A representative of the Road Division of the NDMC where the sites are to be selected on footpath and the roads.
• Convenor of the sub-Committee shall be Joint Director (Vending Committee) or any
64
other officer of NDMC appointed by Chairperson.
This Committee shall be headed by Director (Vending Committee) {Selection of sites & spaces}.
B. Vending sub-Committee (Health and Hygiene): (a) Functions:- The sub-Committee shall recommend to the Vending Committee on the following:-
(i) Issue of fresh licence for hawking including for ice-cream and water trolleys.
(ii) Recommend cancellation of hawking licence and Tehbazari permission of those who violate terms of licence or do not confirm to Health & Hygiene.
(iii) To ensure public hygiene and cleanliness.
(iv) Qualitative guidelines- - Provision of solid waste disposal from
squatting sites. - Public toilet to maintain cleanliness - Provision for electricity, if the same
is to be provided. - Approving protective covers to protect
the wares and squatters from the rain, heat, dust etc.
- Amount of fee to be collected for disposal of solid waste from sites and for user of toilet facilities.
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(v) Issue of photo identity cards to hawkers.
(vi) Any other function assigned by Vending Committee [Main] or Chairperson.
(b) Composition:- This Vending sub-Committee shall be headed by the Medical Officer of Health. Its Members shall be -
(i) Representative of Chief Engineer (Electrical).
(ii) Representative of Chief Engineer (Civil).
(iii) A Representatives of Association of the Market for which hawking licence or qualitative guidelines are being considered.
(iv) A representative of the authorized squatters of the market for which hawking licence or qualitative guidelines are being considered.
(v) Convenor of the Sub-Committee shall be Jt. Director (Vending Committee).
The Committee shall submit its recommendations on qualitative guidelines by 30.09.2010 to Vending Committee (Main).
C. Vending sub-Committee (Enforcement) : (a) Functions
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(i) Registration of squatters covered by Clause-4 & 5 after police verification.
(ii) Collection of registration charges fixed by the Chairperson on the recommendations of the Vending Committee.
(iii) Regulatory process, registration system. Issue of photo Identity Cards.
(iv) Collection of fees as may be
fixed by the Chairperson on the recommendations of the Vending Committee.
(v) Monitoring mechanism.
(vi) Other matters as may be assigned by Vending Committee or Chairperson.
(vii) To recommend cancellation of permission to approved squatters.
(viii) To issue Tehbazari permission, on approval of recommendation of Vending Committee by Chairperson.
(ix) To process cases of transfer
on legal heir basis.
(x) To remove squatters from non- vending areas and remove unauthorized squatter from vending areas and take action
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U/s-226 of the New Delhi Municipal Council Act, 1994.
(b) Composition:-
The Committee shall be headed by Director (Enforcement) and shall consist of representative of Accounts, Chief Security Officer and local police, if necessary. Convener of the Committee shall be Joint Director, Vending Committee or any other officer appointed by the Chairperson. Chairperson can also add members in this sub-Committee. This Committee shall complete its functions of Registration by 31st October 2010.”
73. In paragraph 12 of the affidavit it has
been stated that there shall be an
Appellate Authority which shall attend to
the redressal of grievances of squatters,
hawkers, traders, residents or any other
person by hearing appeals against the
decision of the Vending Committee (Main).
Paragraph 12 of that affidavit is set out
below:-
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“There shall be an Appellate Authority. On the forwarding of petitions received by the Chairperson, this Authority shall attend to redressal of grievances of squatters, hawkers, traders, residents or any other person. The Authority shall also hear appeals against the decision of Vending Committee (Main). Decisions of this Authority unless challenged before a Higher Forum or in any Competent Court, shall be final. This Authority shall be initially headed by a person appointed by the Chairperson having at least 10 years legal or judicial background. There can be more than one member in this Authority.”
74. In the said affidavit, which was affirmed
before this Court on 24th August, 2010 it
has been stated that NDMC shall comply with
the orders which would be passed by the
adjudicatory mechanism contemplated in the
scheme and which has been approved by this
Court for the NDMC area, unless such orders
are made subject matter of challenge before
a higher forum or in any other competent
Court.
75. In view of such schemes, the hawkers,
squatters and vendors must abide by the
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Dispute Redressal scheme mentioned above.
There should not be any direct approach to
this Court by way of fresh petition or IAs,
bypassing the Dispute Redressal Mechanism
provided in the scheme.
76. However, before 30th June, 2011, the
appropriate Government is to enact a law on
the basis of the Bill mentioned above or on
the basis of any amendment thereof so that
the hawkers may precisely know the contours
of their rights.
77. This Court is giving this direction in
exercise of its jurisdiction to protect the
fundamental right of the citizens. The
hawkers’ and squatters’ or vendors’ right
to carry on hawking has been recognized as
fundamental right under Article 19(1)(g).
At the same time the right of the commuters
to move freely and use the roads without
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any impediment is also a fundamental right
under Article 19(1)(d). These two
apparently conflicting rights must be
harmonized and regulated by subjecting them
to reasonable restrictions only under a
law. The question is, therefore, vitally
important to a very large section of
people, mostly ordinary men and women. Such
an issue cannot be left to be decided by
schemes and which are monitored by this
Court from time to time.
78. The second reason is that the appropriate
Government has already enacted a Bill and,
therefore, the initial decision making in
the field of legislative exercise is
complete. It has, of course, to be
converted into a law by following the
Constitutional process. That is why time
till 30th June, 2011 is given.
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79. The fundamental right of the hawkers, just
because they are poor and unorganized,
cannot be left in a state of limbo nor can
it left to be decided by the varying
standards of a scheme which changes from
time to time under orders of this Court.
With the aforesaid observations and
directions the writ petition and all the
IAs are disposed of.
80. No order as to costs.
.....................J. (G.S. SINGHVI)
.....................J. (ASOK KUMAR GANGULY)
New Delhi October 8, 2010
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