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PETITIONER: SAUDAN SINGH AND ORS. ETC.

       Vs.

RESPONDENT: N.D.M.C. AND ORS. ETC.

DATE OF JUDGMENT13/03/1992

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) RAMASWAMI, V. (J) II RAMASWAMY, K.

CITATION:  1992 AIR 1153            1992 SCR  (2) 243  1992 SCC  (2) 458        JT 1992 (2)   190  1992 SCALE  (1)679

ACT:      Constitution  of  India,  1950-Article  19(1)(g)-Public Street-User  by  citizen-Scope  of-Street-trading-Whether  a fundamental right-Right of a hawker-Ambit of.      Constitution of India, 1950-Article 32,136-Deciding the question  of  livelihood  and survival of  large  number  of families-Whether  Court  to  adopt  compassionate  approach- Claims  of  genuine  squatters/hawkers-Determination-Court’s directions to NDMC and MCD.      Constitution  of India, 1950-Article 32,136,  19(1)(g)- Petitions  by hawkers-Pending-Their claims to be  finalised- Court’s direction on listing of new petitions.

HEADNOTE:      The petitions under Article 32 of the Constitution  and certain appeals under Article 136 of the Constitution  filed against  adverse judgments of the High Court, were  referred to  a Constitution Bench for deciding the grievance  of  the pavement-traders   that  the  Municipal   Authorities   were violating  their  fundamental  rights  under  Articles   14, 19(1)(g) and or 21 of the Constitution by refusing to permit them   to  trade  on  street  and  footpaths  in   different localities  of  the  city of  Delhi,  under  the  respective control of the NDMC and MCD.      The  Constitution Bench in Sodan Singh & Others v.  New Delhi   Municipal Committee & Others, [1989] 4 SCC 155  held that  the right to carry on trade or business  mentioned  in Article 19(1)(g) of the Constitution on street pavements, if properly  regulated, could not be denied on the ground  that the street pavements were meant exclusively for  pedestrians and  could not be put to any other use; that the right of  a pavement-hawker was subject to reasonable restrictions under clause  (6) of Article 19 of the Constitution and the  State as trustee was entitled to impose all necessary  limitations on  the character extent of user by  such  pavement-hawkers; that  there could not be a fundamental right of  citizen  to occupy a particular                                                        244 place  on  the pavement where he would squat and  engage  in trading   business,  that  a  hawker  could  not  assert   a

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fundamental  right to occupy permanently specific places  on any  pavement,  that  the right to carry  on  any  trade  or business  and  the  concept of  life  and  personal  liberty enshrined under Article 21 had no connection whatsoever and, that Article 21 had no application.      After stating the law, the Constitution Bench  remitted all the petitions to the Division Bench for final  disposal. After  the  decision  rendered by  the  Constitution  Bench, several other writ petitions came to be filed in this Court.      NDMC Cases      This  Court  by  its order dated  21st  December,  1989 appointed  a committee, known as the Thareja  Committee.  In the light of the NDMC’s Scheme vide Resolution No. 28  dated 10.11.1989  and  the decision in Sodan Singh  the  Committee examined  the  claims  made by the  squatters  and  identify street  pavements  in different areas  were  street  hawking could be regulated without being a hindrance to other users.      A direction was also given by order of 23rd March, 1990 that  pending  receipt  of the  report  from  the  Committee hawking  would  be  permitted  subject  to  the  same  being regulated in sensitive  areas.      During  preliminary scrutiny, the Committee found  that ’takhats’ were given on hire by those who claimed to possess them  on  rentals varying from Rs.300 to  Rs.1,000  per  day depending  on  the season or the ’takhat  holders’  used  to carry  on  business at the said ’takhats’  through  servants while  they themselves attended to their business  elsewhere end  at  certain  places the  ’takhat-holders’  whose  names appeared in the petitions were non-existent i.e. the  orders were in fictitious names.      The  Committee considered it imperative to undertake  a strict  scrutiny  to ensure that the benefit of  the  scheme percolated to the deserving and not to those who were merely exploiting the fluid situation by obtaining court orders  on distorted  and inaccurate facts.  The  Committee,  therefore, invited  claims in the form of a statement on  oath  coupled with original genuine documents in support of it.  This  was done  by public notices at the spot and through  counsel  in case of pending cases. In                                                  245 addition,  local visits were made to verify presence of  the claimant at the site where he professed to carry on business and if not found at such visits he was asked to substantiate his  claim by proof of challan, fine receipts or tehbazari receipts in order to eliminate bogus and  fictitious  claims Records of NDMC were also checked for cross verification      Out of the 460 claims registered with the Committee,458 related   ro  Resolution  No.28  while  the  remaining   two concerned contempt proceedings.  Out of the 458 claims, the Committee  scrutinised 440 claims out of which it upheld  as many     as     114     claims     for     allotment      of stalls/kiosks/sites,etc., (area mentioned for each claimant) and  110 claims for other reliefs referred to in  Resolution No. 28.      Seventeen  claims  in respect of  Sarojini  Nagar  area could  not  be verified by the Committee, as  the  claimants contended  that  they  were not in a position  to  meet  the minimum  proof  standard of producing at least  one  genuine document  in a time gap of one year as they were  under  the patronage  of a local politician, and hence they were  never disturbed  by  the  police  or  any  other  authority   and, therefore, they were not in a position to offer proof of the type insisted upon by the Committee.  The non-cooperation by the  N.D.M.C. added to the problems of the  Committee.   The Committee,  therefore, sought the guidance of the  Court  to

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resolve this deadlock.      The   pavement-hawkers,  submitted  that   the   strict standard  adopted by the Thareja Committee  for  recognising the claim of a pavement-hawker overlooked the fact that most of the pavement-hawkers were poor and illiterate persons who could  not be expected to have maintained proper records  of receipts, challans, etc. issued by the police or other local authorities  to  support their claims;that the  standard  of proof expected by the Thareja Committee was unrealistic  and it was essential to modify the  same to do complete  justice to  the concerned parties; that the deadline  prescribed  by the Thareja Committee was strictly enforced, with the result that  many  of  the  rightful  claimants  were  denied   the opportunity  of  submitting  their  claims  to  the  Thareja Committee  and having the same duly scrutinised and verified by  him; that several pavement-hawkers who were  unaware  of the constitution of such a Committee and to whom a cause  of action for seeking redress through court had not arisen were left  out  from consideration and as  such  pavement-hawkers were likely to be denied their                                                        246 rightful  place  in the scheme if the scheme  was  finalised without  their knowledge;that scores of writ petitions  were filed after the Constitution Bench rendered its decision and most  of  the  petitioners  were  not  before  the   Thareja Committee;  and  that  if strict proof as  provided  by  the guidelines  of  Resolution No. 28 is not  insisted  upon  in respect  of  Sarojini  Nagar area claimants,  there  was  no reason why it should not be relaxed in respect of the  other claimants whose claims were rejected.      NDMC point out that the situation in Sarojini Nagar was completely  different and incomparable with other  areas  in view of the peculiarity of the prevailing circumstance.      MCD Cases      The    MCD   prepared   a   scheme    for    regulating squatting/hawking   business  in  Delhi  and   appointed   a Committee for the identification of  squatting/non-squatting areas  in different zones.  This Committee was  expected  to take  a  final decision regarding the areas  identified  for squatting/hawking.  This was to be done in consultation with the  Commissioner of Police so that the needs  of  vehicular traffic and other police/health problems could be taken care of.    The  criteria  for  priority  allotment   here   also determined.      Under  the scheme the squatters were expected to  agree to  their  being shifted from one zone to another  but  they showed reluctance to move on to less lucrative zones.    The areas  in  the  ten  zones  under  MCD  control  were   duly identified   on   the  plans  and  the   total   number   of squatters/hawkers to be accommodated in the areas were  also worked    out.    Objections   were   invited    from    the squatters/hawkers  but  that barring a few others  did   not react.      Disposing of the writ petitions filed under Article  32 of the Constitution and the appeals filed under Article  136 of the Constitution, in the light of the law settled by  the Constitution  Bench in Sodan Singh’s case, [1989] 4 SCC  155 and  disposing  of  the  writ  petitions  filed  after   the Constitution Bench rendered its decision, this Court,      HELD : 1.01. 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  State may choose to impose. [252E]                                                  247      1.02.  Street-trading  is albeit  a  fundamental  right

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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 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, a citizen is permitted 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. [252E-G]      2.01. Having regard to the fact that the Court  dealing with  the  question of livelihood and survival  of  a  large number  of families, this court does not think it would  not be justified if it adopts a compassionate approach so as  to ensure  that genuine squatters/hawkers are not denied  their daily  bread  at alter of technicalities while at  the  same time  ensuring that those who are out to exploit  and  abuse the process of law do not succeed. [285C-D]      2.02.  In order to ensure that genuine claims  are  not defeated  and in order to further ensure that the  situation in  the five zones identified earlier does not remain  in  a state of flux for all times to come,in regard to NDMC cases, the following directions were made :      (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  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 dehors 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                                                 248 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 languages,  etc.,  to be determined by the  Committee,  hand bill 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  the claimants falling within direction (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

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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 direction 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.      (7)  The interim stay 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 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                                                        249 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  Thareja  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 dose not secure a double benefit.      (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,  can  be  made  available  to  accommodate  such surplus squatters/hawkers who cannot be accommodated in  the five zones on account of paucity of space.  [258E-261A]      2.03. The order that the squatters/hawkers may have one more  opportunity before any final decision is taken on  the scheme  prepared  by  MCD,  it  is  proper  that  a   public notice/advertisement  should issue inviting objections  from the squatters/hawkers against the proposed scheme by a  date to be stipulated therein.  Such public  notice/advertisement will  be issued in daily newspapers of  different  languages such  as English, Hind, Urdu, South-Indian languages,  etc., as  well  as  by printing  and  distributing  handbills  and pamphlets in the zones  identified for squatting/hawking  so that  every squatter/hawker has an opportunity to  file  his objections.    If   any,  to  the  proposed   scheme.    The advertisement  would  also  state that if  no  objection  is received  on  or before the stipulated date,  the  concerned

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squatter/hawker  will  not  be heard  in  the  matter.   The objections or suggestions received will be tabulated                                                        250 and  considered by the Committee and final decision will  be taken  thereon  expeditiously and the same  will  be  placed before this Court for approval of the scheme will or without modification.  [263H-264C]      2.05. The Committee appointed under the MCD Scheme  may process  the  objection  already received.   The  claims  of squatters/hawkers   who  have  already  responded   can   be scrutinised  from the viewpoint of the eligibility  criteria laid  down  under  scheme so that their  priorities  can  be determined.                                                    [264D]      3.01.  The  claims of those who  have  petitioned  this Court and whose petitions are pending can also finalised  to save time. [264D]      3.02. Henceforth if any new petition is filed in regard to  MCD area, the Registry will direct copy of the  petition to  be delivered to standing counsel of MCD and  the  matter will  be listed not earlier than 10 days before the  service of the copy unless otherwise directed by the Court.  No such mention will be made in court unless the registrar has  been intimated in advance who on such intimation will indicate if there  is  such urgency that the matter  cannot  wait  usual listing time. [264E]

JUDGMENT:      CIVIL  APPELLATE JURISDICTION : Special Leave  Petition No. 15257 of 1987 etc. etc.      From  the  Judgment and Order dated  23.4.1987  of  the Delhi High Court in C.W.P No. 268 of 1987.      P.H.  Parekh,  Ms.  Sunita  Sharma,  J.P.  Pathak   and Bishwanatha Aggarwal for the Petitioners.      B. Sen, Govinda Mukhoty, R. K. Maheshwari, S.C. Sharma, Sudhanshu  Atre, Pradeep Aggarwal, S.K. Dubey,  L.K.  Gupta, D.K. Garg, R.P Bhardwaj, Ms. A. Subhashini, A.P Singh,  K.N. Rai, M.M. Kashyap, Ms. Mridula Ray, Ms. Indra Sawhney,  V.K. Verma, Rishi Kesh, P. K. Manohar, A.S. Pundir, V.B. Saharya, S.N. Bhatt, N. Ganpathy, Ms. Bina Gupta, Ms. Rani Jethmalani and Ms. V.L. Menon for the Respondents.      The Judgment of the Court was delivered by      AHMADI, J> A large number of writ petitions were  filed in  this Court by persons claiming a right to trade  on  the pavements situate within                                                        251 the areas under the control of the Municipal Corporation  of Delhi (MCD) and the New Delhi Municipal Committee (NDMC)  in different  part of the city of Delhi.  These writ  petitions filed  under  Article  32 of the  Constitution  and  certain appeals  brought under Article 136 of the Delhi  High  Court were  referred  to a Constitution Bench of  this  Court  for deciding  on the grievance of the pavement-traders that  the Municipal  Authorities  were  violating  their   fundamental rights  under  Articles  14,  19(1)(g)  and or  21  of   the Constitution by refusing to permit them to trade on  streets and footpaths in different localities of the city of  Delhi. The  Constitution Bench by its judgement dated 30th  August, 1989  in  Sodan  Singh  &  Others  v.  New  Delhi  Municipal Committee  & Others [1989] 4 SCC 155 came to the  conclusion that  the right to carry on trade or business  mentioned  in Article 19(1)(g) of the Constitution on street pavements, if properly regulated, cannot be denied on the ground that  the

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street  pavements are meant exclusively for pedestrians  and cannot  be  put  to any other use.   Proper  regulation  is, however,  a  necessary  condition, for  otherwise  the  very object  of laying roads would be defeated.  While  conceding that all public streets and roads in the country vest in the State, the Constitution Bench held that the State holds them as  trustee on behalf of the public and the members  of  the public are entitled as beneficiaries to use them for trading as  a  matter of right subject of course to  similar  rights possessed by every other citizen including pedestrians.  The right   of  a  pavement-hawker  is,  however,   subject   to reasonable  restrictions under clause (6) of Article  19  of the Constitution the State as trustee is entitled to  impose all  necessary  limitations on the character and  extent  of user  by  such pavement-hawkers.   The  Constitution  Bench, however, clarified that there cannot be a fundamental  right of  a citizen to occupy a particular place on  the  pavement where he can squat and engage in trading business.  Nor  can the hawker assert a fundamental right to occupy  permanently specific  places on any pavement.  It recognised  the  right under Article 19(1)(g) of the Constitution but negatived the submission  based on Article 21.  It held that the right  to carry  on any trade or business and the concept of life  and personal   liberty  enshrined  under  Article  21  have   no connection  whatsoever  and  therefore, Article  21  has  no application.   In paragraph 17 Sharma, J. speaking  for  the majority observed as under :          "So  far as right of a hawker to transact  business          while  going from place to place is  concerned,  it          has  been admittedly recognised for a long  period.          Of course, that also is subject to proper                                                        252          regulation  in the interest of general  convenience          of   the  public  including  health  and   security          considerations.   What about the right to squat  on          the  roadside for engaging in trading business?  As          was  stated by this Court in Bombay Hawkers’  Union          v.  Bombay Municipal Corporation, [1985] 3 SCC  528          the  public  streets  by  their  nomenclature   and          definition are meant for the use of general public;          they are not laid to facilitate the carrying on  of          private  business.  If hawkers were to be  conceded          the  right  claimed by them, they  could  hold  the          society   to  ransom  by  squatting  on   the   busy          thoroughfares,  thereby paralysing all civic  life.          This is one side of the picture.  On the other hand          if properly regulated according to the exigency  of          the   circumstances,  the  small  traders  on   the          sidewalks could considerable add to the comfort and          convenience  of general public by making  available          ordinary   articles   of  every  day  use   for   a          comparatively lesser price."      Kuldip   Singh,  J.  who  wrote  a  separate   judgment concurred with the view taken by the majority for reasons of his own.      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. Streettrading  is albeit a fundamental right  under  Article 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

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citizen 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.      After  the petitions were referred to the  Constitution Bench  for  determining the challenge based on  Article  14, 19(1)(g) and 21 of the                                                        253 Constitution  several other writ petitions came to filed  in this Court and interim orders were made thereon from time to time.   NDMC has prepared a scheme, vide Resolution  No.  28 dated  10th November, 1989.  Pursuant to the  recommendation made by the Lok-Adalat on 19th November, 1989, this court by its order dated 21st December, 1989 appointed a Committee to examine the claims made by the squatters in the light of the said  scheme  and the decision in Sodan Singh  and  identify street  pavements  in different areas where  street  hawking could be regulated without being a hindrance to other users. The  salient features of the NDMC scheme may be set  out  at this stage as under :          "  A squatter upto 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/kisok  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  document 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.  pan,  biri,  cigarettes,   chana,          moongfali,  hosiery items, toys,  small  stationery          items,  lottery  tickets,  fresh  vegetable,  uncut          fruits,  packed bakery items etc. will be  allowed.          No  cooking  and sale of food items  exposing  dust          causing  health  hazards shall  be  allowed.   Open          space measuring 6’ 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 Cast/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%"      On several pavements large number of such traders  were carrying on business since quite sometime; many of them were stationary,  some had raised wooden ’takhats’  while  others were  squatting on the pavements in front of shop  and  near

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public place.  ’Tehbazari’ was being recovered from them  by the NDMC.   The  Committee was required  to  scrutinise  the claims  of  the pavement hawkers and at the same  time  look into their grievances.  This was a time consuming  exercise. Keeping that in view interim directions are issued on  23rd February, 1990 to the following effect :          "We are of the view that until the scheme drawn  up          pursuant  to  the directions  of  the  Constitution          Bench is finalised, the petitioners in the  several          writ  petitions placed before us as a  group  today          should be permitted to hawk in the area where  they          claim  to  be carrying on the operation  without  a          right  to  either sit down with  or  without  their          merchandise to be sold on the pavements in front of          licensed  shops or on the pavements as such but  as          soon  as  the shops close down in  the  evening  it          shall  be  open to them to settle down  with  their          goods  and  squat on the pavements and  sell  their          goods.  On holidays and special festival  occasions          as  per  the  prevailing  practice  they  shall  be          entitled  to squat throughout the day.  This  order          is  totally interim in nature without prejudice  to          the stance of both parties and shall not create any          right nor prejudice any right, if any." After  this interim order was made a direction was given  by the  order of 23rd March, 1990 that pending receipt  of  the report from the Committee hawking will be permitted  subject to  the  same being regulated in  sensitive  areas.   During preliminary  scrutiny, however, it was found that  ’takhats’ were  given on hire by those who claimed to possess them  on rentals varying from Rs.300 to Rs.1,000 per day depending on the season or the ’takhatholders’ used to carry on  business at the said ’takhats’ through servants                                                        255 while  they themselves attended to their business  elsewhere and  at  certain  places  the  ’takhat-holders’  whose  name appeared in the petitions were non-existing i.e. the  orders were  in  fictitious  names.  That being  the  position  the Committee  considered  it imperative to undertake  a  strict scrutiny to ensure that the benefit of the scheme percolated to the deserving and not to those who were merely exploiting and  fluid situation by obtaining court orders on  distorted and  inaccurate  facts.  The Committee,  therefore,  invited claims  in  the  form  of statement  on  oath  coupled  with original genuine documents in support of it.  This was  done by public notices at the spot and through counsel in case of pending cases.  In addition local visits were made to verify presence  of the claimant at the site where he professed  to carry  on  business and if not found at such visits  he  was asked  to substantiate his claim by proof of  challan,  fine receipts or tehbazari receipts.  The underlying idea was  to eliminate bogus and fictitious claims.  Records of NDMC were also checked for cross verification.      A  grievance  was  however,  made  that  the  procedure adopted by the Committee for scrutinising the claims made by the   pavement-traders  was  too  strict  and  resulted   in injustice  even  to  genuine claimants.   According  to  the petitioners  the  strict  standard adopted  by  the  Thareja Committee  for  recognising the claim of  a  pavement-hawker overlooked  the fact that most of the pavement-hawkers  were poor  and  illiterate persons who could not be  expected  to have maintained proper records of receipts, challans,  etc., issued  by the police or other local authorities to  support their claims.  Counsel for the pavement-hawkers,  therefore, submitted that the standard of proof expected by the Thareja

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Committee was unrealistic and it was essential to modify the same  to do complete justice to the concerned  parties.   It was  also  submitted  that the deadline  prescribed  by  the Thareja Committee was strictly enforced with the result that many  of the rightful claimants were denied the  opportunity of  submitting  their claims to the  Thareja  Committee  and having the same duly scrutinised and verified by him.  Apart from  those whose claims were rejected on the insistence  of the  strict  standard  of proof prescribed  by  the  Thareja Committee, counsel submitted that several pavement-  hawkers who were unaware of the constitution of such a Committee and to whom a cause of action for seeking redress through  court had not arisen were left out from consideration and as  such such pavement-hawkers are likely to be denied their rightful place in the scheme if the scheme is finalised without their knowledge.   Scores of writ petitions have been filed  after the Constitution Bench rendered its                                                        256 decision  and  most  of these were not  before  the  Thareja Committee.      Now  it must be realised that under Resolution  No.  28 itself  the Committee was expected to scrutinise the  claims on  the  basis of the receipts of  removal  charges,  police challans,  toleration slips, tehbazari receipts,  etc.   All the  same  time it is essential to bear in  mind  that  such minimum  proof  as would enable the Committee  to  weed  out bogus  claims from genuine ones had to be insisted  upon  to maintain  credibility in regard to the scrutiny.  As  stated earlier   preliminary  enquiry  had  revealed  large   scale manipulation  and  fabrication  of documents  by  bogus  and unscrupulous  claimants  who desired to make a  windfall  by abusing  the process.  It was, therefore, essential  to  lay down the minimum proof which the Committee would expect  for accepting  any  claim  put  forth  before  it.  It   cannot, therefore,  be said that the minimum proof expected  by  the Committee in the form of atleast one genuine receipt, police challans, toleration slip, tehbazari receipt, etc., during a gap  of  one year or so was unrealistic.  An  exception  was made by the Committee in the case of a claimant who produced a  large number of such documents for a regular period  even though  the  same was not available in a  given  year  where satisfactory  explanation was offered.  This was  absolutely necessary as large scale irregularities had surfaced  during the preliminary survey undertaken by the Committee.  In  the circumstances we are not inclined to think that the standard of  proof  required  by the Committee was  unduly  harsh  or unrealistic.      Of  the 460 claims registered with the  Committee,  458 related  to  Resolution  No.  28  while  the  remaining  two concerned  contempt proceedings.  Out of the 458 claims  the Committee  scrutinised 440 claims out of which it upheld  as many  as  114 claims for allotment  of  stalls/kiosks/sites, etc., (area mentioned for each claimant) and 110 claims  for other  reliefs referred to in Resolution No.  28.  Seventeen claims  in  respect  of Sarojini Nagar  area  could  not  be verified as the claimants contended that they were not in  a position  to  meet the minimum proof standard  of  producing atleast  one genuine document in a time gap of one  year  as they  were  under the patronage of one Arjan Dass,  a  local politician,  and  hence  they were never  disturbed  by  the police or any other authority and, therefore, they were  not in  a position to offer proof of the type insisted  upon  by the Committee.  The non-cooperation by the N.D.M.C. added to the problems of the Committee. The Committee has, therefore, sought the guidance of the

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                                                      257 Court  to  resolve this deadlock.  In view of  the  peculiar circumstances  mentioned by the 17 claimants, the  Committee need not feel inhibited by the nature of proof laid down  in Resolution   No.  28.   We  would,  therefore,  direct   the Committee  to  examine  the claims  of  these  17  claimants closely  in  the light of any other evidence that  they  may choose   to  tender  and  on  being  satisfied   about   the genuineness  and dependability of the proof so  tendered  by the claimants, the Committee may dispose of their claims.      Under  Annexure A squatting is permitted in the  entire area  except  Connaught  Place/Circus area  because  of  its special   characteristics  although   Tehbazari   permission already  granted  in respect of that area has  to  continue. Squatters were agreed to be continued in other areas subject to  availability  of space.  Even in Connaught  Circus  area NDMC agreed to accommodate squatters provided their presence there   did  not  interferewith  the  smooth   movement   of pedestrians.  No. squatting could be permitted in zones 2, 3 and  4  because  of security considerations  but  shops  and kiosks  already  in existence were to continue.  So  far  as zone  5  is concerned squatting was agreed to  be  permitted leaving  a  margin  of 30 Meters on either  side  of  public utility  institutions,  e.g. hospitals etc.  Kiosks,  stalls etc.  situate  in  the  said areas  were  to  continue.   In addition  228  open tehbazari permission were  agreed  upon. Further   106   squatters  were  to   be   accommodated   on compassionate grounds.  In addition squatters  rehabilitated in zone 1 and existing milk-booths were to be continued.  In this  manner  the  needs of those in  NDMC  area  have  been adequately  attended to.  Yet there exist a large number  of squatters in different parts of NDMC area, some of whom have the protection of stay orders secured from courts, and their cases were to be worked out on the basis of the  eligibility criteria to be formulated by a Sub-Committee of NDMC.      The grievance made by counsel for squatters/hawkers has been twofold.  In the first place they complain against  the strict  standard  of proof insisted upon by Mr.  Thareja  in support   of  the  claim  and  secondly  against  the   area identified  for carrying on business by these squatters  and hawkers  being considerably restricted.  It is  pointed  out that on account of the strict standard of proof expected  by the  Thareja Committee, out of 440 claims examined  by  that body  only 224 claims (114 for kiosks/sites, etc +  110  for other  reliefs)  have been cleared and the  rest  have  been rejected.   But  as  pointed out earlier  the  standard  and nature of proof was determined under                                                        258 Resolution No. 28 and the Thareja Committee had merely  gone by it.  This difficulty, however, manifested itself when  it came  to scrutinising the 17 claims concerning the  Sarojini Nagar  area.   Some  directions in this behalf  have  to  be given. It was contended that if strict proof as provided  by the guidelines of Resolution No. 28 is not insisted upon  in respect of Sarojini Nagar area claimants, there is no reason why  it  should  not  be relaxed in  respect  of  the  other claimants  whose  claims have been  rejected.   Counsel  for NDMC,  however,  pointed out that the  ground  situation  in Sarojini  Nagar  is completely different  land  incomparable with  other  areas  in  view  of  the  peculiarity  of   the circumstance relied on.      We  have given our anxious consideration to  the  rival point  of  view and having regard to the fact  that  we  are dealing  with  the question of livelihood  and  survival  of large  number of families, we do not think we would  not  be

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justified  if  we adopt a compassionate approach  so  as  to ensure  that genuine squatters/hawkers are not denied  their daily bread at the alter of technicalities while at the same time  ensuring that those who are out to exploit  and  abuse the  process  of law do not succeed.  We must  also  realise that   a large number of squatters/hawkers have since  filed proceedings  which await scrutiny.  In order to ensure  that genuine  claims  are not defeated and in  order  to  further ensure  that  the  situation in the  five  zones  identified earlier does not remain in a state of flux for all times  to come,  we deem it necessary to give appropriate  directions, here  and  now,  in regard to NDMC  cases.   We  accordingly direct:       (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 the 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 dehors the one laid down by Resolution No.          28 and proceed to dispose of                                                        259          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  ofcourse  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, Hind, Urdu, South-Indian 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          direction (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

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        Petitions  and CMPs/IAs there in 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  claimant  of  all  the  matters          disposed  of pursuant to this direction will be  at          liberty  to  seek  further directions  in  the  one          matter kept                                                        260          pending under this direction as interveners in case          such  need arised in future.  This is essential  to          regulate such cases against NDMC;       (7)The interim stay orders will continue in respect of          the  224 claimants whose claims have  already  been          scurtinised  by the Committee.  In respect  of  the          other  claimants out of 440 whose claim  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  Thareja  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 be made available  to          accommodate  such  surplus  squatters/hawkers   who          cannot be accommodated in the                                                      261          five zones on account of paucity of space.     All  the  NDMC cases falling under  the  zones  created under Resolution No.28 will stand disposed of accordingly by this  order  with no order as to costs.   The  advertisement cost will be borne by NDMC.      We   now   move   on   to   consider   the   cases   of squatters/hawkers carrying on their business activity in the territory within the administrative control of the MCD.  The MCD has, within its jurisdiction, the entire Union Territory of Delhi minus the area within the administrative control of NDMC   and  Delhi  Cantt.   The  area  falling   under   the administrative   control  of  MCD  has  a  large   belt   of agricultural lands and, therefore, any scheme to be prepared

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in regard to facilitating trade by squatters/hawkers must be confined to the urban areas only.  It appears that after the partition   of  the  country  there  was  large  influx   of population to Delhi and the local authority was  constrained to  evolve  certain  norms  to  rehabilitate  such   people. Squatting  was,  therefore, permitted on  tehbazari  system. Keeping  this  in view the MCD has now evolved a  scheme  of open  tehbazari consisting  of grant of permission to  squat on  a earmarked spot of the area of 6’ x 4’ for the  purpose of  carrying  on business.  On gazetted  holidays,  festival days  and Sunday, permission to squat is granted in  various areas  under  what  is known as  casual  tehbazari.   Weekly bazars  are organised in certain specified areas once  in  a week  when  the regular shops are closed.   67  such  weekly bazars  are  held in different parts of the city  of  Delhi. Survey  has been carried out by the MCD officials from  time to  time  to  identify  the  person  actually  squatting  in different  areas on municipal lands.  The last  such  survey was conducted on December 23, 1982. In preparing the scheme, the  MCD  has  determined the categories of  persons  to  be considered  for  grant  of  permission  to  squat,   subject ofcourse to availability of space.  The criteria evolved  by the MCD is stated as under :          "(a) Persons who were found squatting  continuously          in the survey carried out be the Corporation as  on          23.12.82 and who have proof of continuous squatting          in  a particular place which may be in the form  of          Police  challans  when the goods  were  removed  or          challans  were issued by the Health  Department  or          receipts  of  payment  of Composition  Fee  to  the          Corporation  and  also supported duly by  proof  of          their  actual residence in the Union  Territory  of          Delhi, their                                                        262          nationality in the form of Ration Card and entry in          the Voters’list.          (b)  Persons  who have only proof of  squatting  on          holidays,  festival  days, etc. and have  no  other          proof of squatting on any other occasion, and          (c)  Persons  who have no proof  squatting  at  all          prior to 1982 but have since then registered  their          claim  of  squatting in a particular place  in  the          Writ  Petitions filed in the Supreme Court  and  an          order  of stay has been granted in their favour  on          the   basis  of  their  having  adduced  proof   of          squatting  anterior  to  the  filing  of  the  Writ          Petition."      For  this purpose the city is divided into  ten  zones, namely, (i) City Zone, (ii) Karol Bagh Zone, (iii) New Delhi Zone,  (iv) South Zone, (v) Nerala Zone, (vi)Shahdara  Zone, (vii)  Sadar  Paharganj Zone, (viii) West Zone,  (ix)  Civil Lines  Zone,  and (x) Najafgarh Zone.  In all  288 squatting areas have been identified in the zones covering 12369 -6’ x 4’  spots for rehabilitation of squatters.  Of  these  zones some  zone  like City Zone etc.,comprise of  extremely  busy shopping centres with narrow roads like Chandni Chowk, Khari Baoli,  etc.  which on account of severe congestion  do  not permit  even  smooth movement of  vehicular  and  pedestrian traffic   making  it  impossible  to  allocate   space   for squatting/hawking  purposes.  Similar problems with  varying degrees  have to be countenanced in certain other  areas  as well  which  cannot accommodate the  squatters/hawkers  from other zones are not willing to shift making it difficult for the  MCD  to relieve the congestion found in  certain  zones where squatters/hawkers are found in large numbers, far more

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than can be accommodated.  Keeping these factors in mind and the directions of the court issued from time to time to  MCD prepared a scheme for regulating squatting/hawking  business in Delhi and appointed a committee for the identification of squatting/nonsquatting   area  in  different  zones.    This Committee  was expected to take a final  decision  regarding the areas identified for squatting/hawking.  This was to  be done in consultation with the Commissioner of Police so that the  needs  of  vehicular traffic  and  other  police/health problems could be taken care of.  The criteria for  priority allotment has also been determined as under :                                                        263       (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 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          lincenced 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.      Under  the scheme the squatters were expected to  agree to  their  being  shifted from one zone to  another  but  as stated  earlier  they have shown reluctance to move  on  the less lucrative zones.  The areas in the ten zones have  been duly  identified  on  the  plans and  the  total  number  of squatters/hawkers to be accommodated in the said areas  have also  been  worked out.  Objections were  invited  from  the squatters/hawkers  but it appears that barring a few  others have  not reacted.  In order that the squatters/hawkers  may have one more opportunity before any final decision is taken on  the scheme prepared by MCD we think it is proper that  a public                                                        264 notice/advertisement  should issue inviting objections  from the squatters/hawkers against the proposed scheme by a  date to be stipulated therein.  Such public  notice/advertisement will  be issued in daily newspapers of  different  languages such as English, Hindi, Urdu, South-Indian-languages,  etc., as  well  as  by printing  and  distributing  handbills  and pamphlets  in the zones identified for squatting/hawking  so that  every squatter/hawker has an opportunity to  file  his

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objections,   if   any,  to  the   proposed   scheme.    The advertisement  would  also  state that if  no  objection  is received  on  or before the stipulated date,  the  concerned squatter/hawker  will  not  be heard  in  the  matter.   The objections  or  suggestions received will be  tabulated  and considered  by  the Committee and a final decision  will  be taken  thereon  expeditiously and the same  will  be  placed before this Court for approval of the scheme with or without modification.      However, in the meantime, the Committee appointed under the MCD Scheme may process the objections already  received. The  claims of squatters/hawkers who have already  responded can  be  scrutinised from the viewpoint of  the  eligibility criteria laid down under the scheme so that their priorities can  be  determined.  So also the claims of those  who  have petitioned  this Court and whose petitions are  pending  can also  be  finalised  to save time.  Henceforth  if  any  new petitions  is filed in regard to MCD area, the  Registry  of this Court will direct copy of the petition to be  delivered to standing counsel of MCD and the matter will be listed not earlier  than 10 days before the service of the copy  unless otherwise  directed by the Court.  No such mention  will  be made  in  Court unless the Registrar has been  intimated  in advance  who  on such intimation will indicate if  there  is such urgency that the matter cannot wait usual listing time.      The above order will guide all concerned including  the Registry of this Court so far as cases of  squatters/hawkers are concerned. V.V.R                              Petitions disposed of.                                                        265