Delhi High Court
Revolution (Forum For Awareness) And ... vs Govt. Of Nct Of Delhi State And Ors. on 25 July, 2002
Author: A.K.Sikri
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT A.K.Sikri,J.
1. The problem brought about by means of this Public Interest Litigation relates to temporary and permanent encroachments on Government lands/public spaces being Nicholson Road, Hamilton Road, Bara Bazar, Ganda Nala Bazer / S.Malhotra Marg, Ram Chowk, Chabi Ganj, Chhota Bazar etc. The petitioners have highlighted the problem by pointing out that in these Areas treaders of automotive parts and transporters park their respective trucks, matadors, tempos, hand carts / thelas etc. in front of roads as well as their booking offices unlawfully which blocks movement of normal traffic and commuters on already busy and congested areas.
2. In the petition it is also stated that, the traders/shopkeepers have fixed permanent iron fixtures / Jal / Grill outside of their shops being on the both sides of the roads / streets about 2 feet in width in this way they have encroached the Govt. land with the result the roads / streets have become narrow and that traders / shopkeepers park their vehicles on the roads / streets unauthorisedly and thereafter they start parking and unpacking / loading and unloading process during the whole day and dumping of the packed goods on the roads / streets with the result that no any space is left for the pedestrians therefore, the school going children, ladies and old age persons are facing great hardship and difficulties in their civic life and the civic amenity are badly effected.
3. It is further stated in the petition that the transport companies who are maintaining their booking and delivery offices on Nicholson Road and Chabi Ganj and have their small rooms in the name of booking office do not have sufficient space for the purpose of godown of booked goods. Therefore, they dump booked packed goods on the road. Thereafter they park their respective trucks, matadors and tempos etc at the front of their booking offices for the purpose of loading and unloading process round the clock with the result that jams are created and no one can move freely even barehanded and that on Bara Barzar, Kashmere Gate in front of premises No. 1040 to 1375 and in Rai Bahadur Sultan Singh Building Complex, Kashmere Gate, hundreds of motor-cars are being parked as a permanent parking zone and the same process is being adopted by the shopkeepers on Harnilton Road, Ganda Nala Bazar / S. Malhotra Marg, Ram Chowk of Mori Gate and Kashmere Gate. Delhi.
4. It is also stated that there are many squatters squatting on the pavements and foot-paths and even on roads thereby compounding the problems.
5. It may be mentioned at this stage that the respondents do not deny existence of the problem as highlighted by the petitioners in this writ petition. There is no denial of the fact that there is inadequate space for parking and area in question being an important commercial area, all kinds of vehicles not only enter the area, they remain parked here with the result obstruction to free flow of other vehicles as well as movement of pedestrian is caused. The problem of traffic congestion has, therefore, become a perennial problem. One way to tackle the problem as suggested by learned counsel for the MCD is to create additional multi-level parking facilities at whatever available spaces / buildings possible. This is, however, a policy decision for which detailed and thorough discussions and deliberations are required by the governmental authorities at all level. We can only hope and trust that solution to this problem by creating the possibilities of additional multi-level parking facilities would be considered by the authorities at appropriate level.
6. However, it is not to say that till such time these multi-level parking facilities come up, the problem should not be tackled at all Short term immediate solution to the problem has to be found. In this respect provisions of the Delhi Control of Vehicular and Other Traffic on Roads and Street Regulations 1980 (hereinafter to be referred as 'Regulations' for short) need to be adhered to. The relevant Regulations in this respect are as under:
i) "Under Regulation of the Delhi Control of Vehicular and other Traffic on Roads and Street Regulations 1980, it is provided that no person shall cause any vehicle to halt or remain standing in any street or road or public space at a distance of more than 2 feet from the edge of the road / pavement. The said Regulation also prohibits parking of vehicle within 10 meters of the corner, of the street or road or in such a position adjacent to any corner so as to obstruct or be dangerous to traffic or pedestrians.
ii) Regulation 14 lays down that no person shall have any box, bale, package or other thing in a road or street, so as cause obstruction to the normal and free flow of traffic or danger or inconvenience to the public.
iii) Regulation 15 lays down that no person shall occupy or use any road or street so as to cause obstruction to the normal and free flow of traffic or inconvenience to the public.
iv) Regulation 16 prohibits any encroachments by persons selling arty goods on the roads so as to cause obstruction to the normal and free flow of traffic or inconvenience to the public".
7. It is the function of the Traffic Police to enforce the compliance of the aforesaid provisions. Interestingly Deputy Commissioner of Police/Traffic, Northern Range who has filed affidavit on behalf of the respondents 3 and 4 has also acknowledged the problem of traffic as demonstrated by the petitioner. However, he denies the magnitude thereof. In the affidavit it is emphasised on behalf of respondents 3 and 4 that mostly the problem pertains to land grabbing undertaken by traders of automotive parts and transporters. Insofar as the problem of traffic is concerned, it is stated that there is prohibition for all the 24 hours for HTVs and MTVs on Hamilton Road and Morigate road and also there is prohibition of HTVs and MTVs on Nicholson Road from 7.30 a.m. to 9.30 p.m. Further the LTVs are prohibited from 8,00 a.m. to 11.00 a.m. and 5.00 p.m. to 9.00 p.m. on Jorawar Singh Marg, Lothian Road and Nicholson Road Kashmiri Gate.
8. In this affidavit it is further pointed out that after the complaint was received from the petitioners, following steps were immediately taken:
a) A meeting was held with all the representatives of the different traders associations, transport companies, resident welfare associations, Traffic Wardens and other social workers at P.S. Kashmiri Gate.
The meeting was also attended by the SHOPS Kashmiri Gate and TI Civil Line Circle. The problem of parking at Hamilton road, Nicholson road, Bara Bazar etc. was discussed at length. Suggestions of various representatives were noted in consultation with local police. Prior to this the following meetings were also held in the same connection.
b) On 12,5.2001, a meeting was held with the representatives of different associations and it was decided that spot should be visited Along with the association members.
c) On 18.5.2001 TI Civil Line Circle Along with a team of senior Zonal Officers and representatives of associations visited the area to have first hand knowledge of the problem and to seek practicable suggestions on the spot.
d) On 21.5.2001 TI Civil Line Circle held a meeting in his office with the representatives of different associations which was attended by the following:
1. Shri Kimti Lal Jam - President APMA
2. Shri Rekhi President Bara Bazar Traders Association
3. Shri Narender Madan, APMA Chabi Ganj
4. Shri Suresh Sehgal, Chota Bazar
5. Shri Rizvi Resident Association .
e) On 23.5.2001 a meeting of representatives of different associations was also held in the office and in the presence of ACP Traffic North Distt. which was also attended by TI/ Civil Lines Circle. In this meeting the problem was summed up and decision was taken to start some concrete work in phases.
Since the Civil Lines Circle had no cranes matter was taken up at high level to procure small crane which can lift obstructive parked vehicles from the otherwise congested area. Till the cranes were obtained the following steps were immediately taken:
i) Head Constable Devender Singh 891/T and Constable Ashok Kumar 3155 /T were detained to report to PS Kashmiri Gate daily in the morning. These traffic officials taking a team of local police along from PS Kashmiri Gate were asked to cut notices u/s 122/177 Motor Vehicle Act ( improper / obstructive parking). There daily progress was monitored on daily basis. They had been cutting more than a hundred notices u/s 122/177 MVA.
ii) Kela Ghat road was made one way during morning and evening hours to avoid any congestion in the area.
iii ) Staff was permanently deployed at Lothian Bridge (GPO) to avoid any traffic jam.
iv) A written proposal for traffic lights at GPO was immediately sent.
V) A survey was conducted to examine the possibility of selecting 'unloading points' in the area to avoid congestion of traffic. On such point at Tikona Park was selected on trial basis.
vi) Association representatives were asked to convey to all traders not to park their cars in two lines or in obstructive way. An action plan was discussed with local police and trader's representatives to enforce proper, parking.
vii) It was also decided to review the situation in fortnightly meetings so that traffic situation is made as easy as possible.
A letter to intimate these steps was sent to the petitioner from the office of TI/CLC on 25.5.2001 (copy enclosed as Annexure R-1).
Again on 9.6.2001 a meeting was held at PS Kashmiri Gate which was conducted by SDPO Civil Lines ACP Shri Hira Lal and was attended by SHO Kashmiri Gate, TI/CLC, representatives of residents welfare associations, traders associations, HSPOa and Traffic Wardens. The following points were decided during the meeting:
I) MCD Parking, at Hamilton Road is only authorised at one side of the road and for only one line of the vehicles whereas the contractor gets parked the cars in two lines.
The Chairman suggested that Zonal Officer of Kashmiri Gate ASI Jodh Singh who was also present in the meeting will accompany the Division Officer of Hamilton Road and will pull up the contractor. In case he fails to adhere to one line parking, the vehicles be prosecuted. It was implemented in letter and spirit.
ii) On the line of Hamilton Road where daily notices of improper / obstructive parked vehicles are regularly cut with the help of local police, notices be also cut at Nicholson Road. The cutting of notices / challan at Nicholson Road was immediately started by the ZO of Mori Gate and his staff.
iii) TI/ Civil Lines Circle also suggested to hold an exclusive meeting for only traffic problems in his office. The suggestion was agreed to by all the attendants and it was assured that they will fix it at the earliest.
iv) Need for detachable barrier at Nicholson Road was not supported by the representatives.
v) The need for a small crane was strongly felt as same has a stern effect on improper parking. DCP (T) (NR) again took up the matter for procuring crane for the circle at the earliest. The efforts by the senior officers bore fruits and on 2.7.2001 two small cranes were allotted to the circle. Since there was resistance from the traders and shopkeepers whenever an improper parked vehicle was lifted, SHO Kashmiri Gate was requested to render police help. An action plan was drawn and it was decided that one crane will exclusively be used for Kashmiri Gate only. Since then one crane with traffic staff started reporting at PS Kashmiri Gate and taking the local police staff along, started clearing the traffic by lifting wrongly parked vehicles from Hamilton Road, Nicholson Road, Bara Bazar and other areas. Since then on an average 15 vehicles have been lifted/removed daily from these areas by this crane and these vehicle have also been prosecuted. In the end of September 2001 the circle received a third small crane and the drive against unauthorised parking was intensified.
(During the drive against unauthorised and obstructive parking, ACP Traffic North Distt. Shri Tom Choun himself participated personally and he in a week long drive got the area cleared up.
In the meeting at PS Kashmiri Gate the representatives of residents welfare associations, traders associations etc. have appreciated the initiative and the action of traffic police whole. Even the petitioner No. 2 was informed about this fact which he has admitted in his supplementary affidavit.
9. No doubt Traffic Police is trying to ameliorate the situation and has taken various steps in this direction as pointed out above. However, fact remains that problem still continues to exist and the ground realitied are far from satisfactory. Whereas it cannot be denied that because of illegal parking of the vehicles there is obstruction to the free movement of the traffic for which traders are to be blamed, on the other hand Mr. S.N. Kumar, learned senior counsel appearing for Traders Association pointed out that there is much encroachment on the pavements and foot-paths which is leading to the problem. He referred to various photographs filed showing illegal kiosks which were existing and many persons were squatting on the roads as well as foot-paths. It was his submission that the problem had been aggravated because of such encroachments. His submission was that tehbazari guidelines issued by MCD were not being adhered to.
The aforesaid discussion brings into focus twin issues, namely,:
1. Problem of illegal parking leading to restriction of movement of traffic and kiosks.
2. Illegal encroachment on foot-paths and roads by squatters and other by constructing kiosks etc.
10. Insofar as first problem is concerned, the same has already been addressed to by us. As already pointed out above notwithstanding the efforts put in by the Traffic Police, problem still persists and the only explanation could be that what is stated on papers by the Traffic Police is not enforced in all earnestness. Provisions in the form of Regulations also exist.
There is a need to enforce them strictly. We direct the Traffic Police to do the needful. In case there is no improvement in the situation, the petitioner shall be permitted to approach this court again.
11. Insofar as problem of squatters is concerned, we may point out that the grant of Tehbazari licenses by MCD to hawkers and squatters in different parts of Delhi has chequered history. As per the averments made in the writ petition which are substantially undisputed, the first petition in this respect being CWP No. 552/87 entitled Rajinder Kumar v. MCD was filed in the Apex Court. On 31st October, 1987 an order was passed in this writ petition on the assurance given by the counsel for the MCD to the effect that the MCD shall furnish a list of all areas available for Tehbazari licenses under its jurisdiction and shall also provide a site plan indicating the localities of such areas. Thereafter another writ petition, namely, Gainda Ram v. MCD (1687/87) the Supreme Court passed the following order on 12th May, 1993:
"The MCD will also ensure that future encroachments do not take place defeating the rights of existing squatters/hawkers governed under the scheme. It will also protect the interest of the shopkeepers as they too have a similar right under Article 21 of the Constitution."
It is not in dispute that matters concerning squatters/hawkers have come up before the Apex Court in various cases and directions in these cases were passed from time to time. The relevant order would be order dated 1st May, 1997 in the case of Gainda Ram and Ors. v. M.C.D and Ors. . The portion of the said order, material for our purposes, reads as under:
"A fresh exercise is ordered to be carried out by the Municipal Corporation of Delhi to identify new approved squatting sites in all the Zones. The Zonal Heads, Administrative Officers of the Zones, representative of the Traffic Police and two or three representatives of the hawkers of the zones selected on random basis shall identify fresh squatting zones so that squatters are properly rehabilitated and not simply uprooted to deprive them of their livelihood.....
After finalising the list of ....approved squatting zones fresh preference applications shall be invited and thereafter allotments be made first in accordance with preference applications..."
12. After the aforesaid order the Zonal Committees were constituted by the MCD in 12 Zones. Thereafter, another order dated 13th April, 2000 was passed by the Supreme Court directing the MCD to complete the identification of squatting sites. It was followed by order dated 28th July, 2000 directing the MCD to file an affidavit stating the squatting and non-squatting sites identified by the Zonal Committee along with map showing the squatting area in 'Green' and non-squatting area in 'Red'. Vide order dated 4th August, 2000 the Supreme Court accepted the aforesaid report of the MCD. The relevant portion of this order reads as under
"In the light of the affidavit in I.A. No. 317 dated 02nd August 2000 filed in the Court today on behalf of M.C.D., which is accompanied by a site plan, it is seen that areas marked in red colour are not treated to be squatting zones but the lanes marked in green colour are shown to be squatting zones. Learned counsel for the applicants in these applications submit that at least in the admittad areas which are shown to be squatting zones marked in green colour and where, according to her, squatters are already squatting, they may be permitted to squat. So far as the areas shown in green colour in the site plan are concerned, learned counsel appearing for the shopkeepers had no objection. Learned counsel for the M.C.D. also has no objection. Therefore, in the light of what is stated in paragraph 4 of the said affidavit as regards New Lajpat Rai Market and Lajpat Rai Market, no squatting in front of the said markets abutting Subhash Marg and Chandni Chowk is permissible. Subject to that exception, in the areas marked green in the site plan the applicants, if they are already squatting, will be permitted to squat till furthers in the other I.As."
13. In view of the aforesaid position, when the matter is pending before the Supreme Court which is monitoring the same even now, we are of the opinion that the Association, applicant in CM.1062/20O2 can take up the matter by filing appropriate proceedings in the Supreme Court only. We can only say that if a particular area is not identified as squatting zone, MCD should remove those encroachments/squatters immediately. Otherwise, if the Traders Association feels that the identification of squatting zones from where these squatters is creating problem for them the only option for the Association is to move the Supreme Court for appropriate orders.
14. The writ petition is disposed of with the a foresaid directions.