Delhi District Court
Sh. Kewal Kishan vs The Commissioner on 14 December, 2021
In the Court of Shri Ajay Kumar Malik : Additional Senior Civil Judge of
Central District at Tis Hazari Courts, Delhi
CS No.27454/2016
CNR No.DLCT030011302015
In the matter of:-
Sh. Kewal Kishan,
S/o Shri Gian Chand,
R/o 1064, Kucha Natwa,
Chandni Chowk, Delhi-110006
......Plaintiff
VERSUS
The Commissioner,
North Delhi Municipal Corporation,
Civic Centre, J.L. Nehru Road,
New Delhi-110002
......Defendant
Date of Institution : 10.08.2015
Reserved for Judgment : 24.03.2021
Date of Decision : 14.12.2021
Suit for Permanent and Mandatory Injunction
JUDGMENT
1. This is a suit for permanent and mandatory injunction filed by the plaintiff thereby calling upon the defendant to immediate handover the physical possession of Teh Bazari site no.3692, measuring 6'x 4' (open to sky), Kucha Natwa, Chandni Chowk, Delhi (hereinafter referred to as the "site in question") to the plaintiff.
CS No. 27454/2016 Page no. 1 / 7Plaintiff's Case
2. The brief facts as averred in the plaint are that on 23.06.1992, a newly constructed Thara No-55 Measuring 6'X4' as open Teh Bazari at Sushila Mohan Park, Bagh Diwar, near car parking, Delhi was allotted to Shri Duli Chand, s/o Shri Budh Ram. It is stated that on 20.05.1997 Shri Duli Chand sold allotted Teh Bazari No-55 measuring 6'X4' open to Sky Subzi Market, Bagh Diwar, Delhi to the plaintiff through GPA dated 20.05.1997 for a consideration of Rs. 60,000/-. It is stated that the plaintiff made several requests of transfer to the concerned municipal department, but only with reference to the plaintiff's application dated 02.03.2012, it was informed to the plaintiff from the office of the Asst. Commissioner, North Delhi Municipal Corporation, City Zone, Asaf Ali Road New Delhi that Dy. Commissioner has allowed change of hand/ shifting of Tehbazari rights of site no-3692 measuring 6'X4' (open to sky) from Subzi Market, Bagh Diwar, Delhi to site in question from the name of Shri Duli Chand, S/o Budh Ram to in favour of Shri Kewal Kishan, S/o Shri Gyan Chand under the policy of change of hand contained in the scheme of MCD for Squatter/Hawkers-2007, Circular No-CL&EC/TTR/2009/532 dated 09.10.2009. It is stated that the plaintiff paid Rs. 65,000/- vide receipt No- 095099 dated 24.07.2012 for Mutation / Transfer charges of site in question and thereafter, subsequent nominal allotment of Teh Bazari Site No.3692 was made in favour of the plaintiff under the policy of change of hand contained in the aforesaid scheme of MCD. It is stated that after mutation and change of allotment, the plaintiff has been regularly paying Teh Bazari Permit Fee vide various receipts, Receipt no-631341 dated 28.07.2012 of Rs. 12388/-, Receipt No-2501554 dated 21.03.2014 of Rs.4403/- and CS No. 27454/2016 Page no. 2 / 7 Receipt No 183739 dated 02.02.2015 paid Teh Bazari Permit Fee of Rs. 4402/-. It is further stated that the plaintiff has been regularly paying Teh Bazari Permit Fee after change of hand/shifting of Teh Bazari rights. It is stated that till date the physical possession of site in question has not been handed over to the plaintiff from North DMC. To this effect, the plaintiff wrote various letters dated 02.03.2015, 20.03.2015 and 29.05.2015 requesting the municipal department to hand over the physical possession of the site in question. It is stated that the request letters as issued by the plaintiff were duly endorse in the dairy of the department. It is stated that plaintiff time and again kept on requesting the North DMC to hand over the physical possession of open to sky Teh Bazari Site No- 3692. It is further stated that even after repeated request the department has not paid any heed to plaintiff's concerns. Hence, the present suit.
Defendant's Case
3. Written Statement was filed on behalf of defendant/North DMC wherein it is contended that the suit of the plaintiff is barred by the provisions of Section 477 and 478 of the DMC Act for want of service of statutory notice upon the answering defendant/North DMC. It is further stated that the Thara No. 55 measuring 6'X4' open Tehbazari at Shushila Mohan Park, Bagh Diwar near Car Parking Delhi was allotted to Sh. Duli Chand S/o Sh. Budh Ram. It is stated that Shri Duli Chand sold his Tehbazari to Sh. Kewal Kishan S/o Sh. Gyan Chand through GPA on 20.05.1997. On the application of the plaintiff, Tehbazari was mutated in the name of the plaintiff and site was shifted to Kucha Natwa, Chandni Chowk, Delhi-06. If the plaintiff is aggrieved with the answering CS No. 27454/2016 Page no. 3 / 7 defendant/ North DMC, he is supposed to approach before the Town Vending Committee as per the provisions of Section 20 of The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014. It is stated that the plaintiff is not entitled to any relief as claimed in the plaint as such the suit of the plaintiff is not maintainable and is liable to be dismissed. It is stated that the Hon'ble Supreme Court in Gainda Ram Vs. MCD has laid down the law that Civil Court has no jurisdiction to entertain the matter relating to Teh Bazari/hawking/ Squatting. It is stated that the present suit is also barred under Section 20 of The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 as it has not laid down the mechanism in case of grievances to approach the Civil Court, this section makes provision in case of dispute to approach before the Town Vending Committee. It is prayed that the suit of the plaintiff may be dismissed.
4. Vide order dated 15.01.2016, the following issues were framed by my learned Predecessor for trial :
1. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for in the plaint? OPP
2. Whether the suit of the plaintiff is barred by the provisions of Section 477/478 of the DMC Act for want of statutory notice? OPD
3. Whether this Court no jurisdiction to try the present suit in view of Section 20 of the Street Vendors Act as alleged in preliminary objection no. 2 of WS of defendant? OPD 4 Relief.CS No. 27454/2016 Page no. 4 / 7
Plaintiffs evidence
5. Plaintiff has examined himself as PW1, who in his affidavit by way of evidence (Ex.PW1/A) reiterated on oath the contents of the plaint. He has relied upon following documents :
1. Copy of allotment letter of MCD dated 23.03.1992 is Ex. PW-1/ (OSR)
2. Copy of GPA dated 20.05.1997 is Ex.PW-1/2(OSR) (colly).
3. Copy of letter of MCD dated 30.04.2012 is Ex. PW-1/3(OSR).
4. Copy of Mutation receipt dated 24.07.2012 is Ex.PW-1/4(OSR).
5. Copy of tax receipt dated 28.07.2012, 02.02.2015, 21.03.2014 respectively is Ex.PW-1/5 (colly) (OSR).
6. Copy of the reminder letter dated 28.02.2015, 20.03.2015 & 29.05.2015 is Ex. PW-1/6.
7. Copy of legal notice dated 16.07.2015 is Ex. PW-1/7.
8. Copy of postal receipt dated 20.07.2015 and same is marked as Mark A is Ex.PW-1/8 .
6. Thereafter, plaintiff evidence was closed on 10.01.2020 and the case was fixed for defendant evidence.
Defendant Evidence
7. No DE was lead by defendant/North DMC, and DE closed on 20.02.2020 and the matter was fixed for final arguments.
CS No. 27454/2016 Page no. 5 / 78. Final arguments have been heard. Record perused.
9. Now I shall give my issue-wise findings.
Issue No. 3 : Whether this Court no jurisdiction to try the present suit in view of Section 20 of the Street Vendors Act as alleged in preliminary objection no. 2 of WS of defendant? OPD
10. The onus to prove this issue was upon the defendant. But on 20.02.2020, vide separate statement, the defendant wish not to lead DE and DE was closed. The present issue pertains legal position. Had it been the question of fact, then relevant provision of Indian Evidence Act would have been invoked in order to prove the fact by either party asserting the same, but since the present issue pertains to jurisdiction of the Court, so it is solemn duty of the Court to decide that whether this Court can proceed with the present suit for adjudication of other issues framed in the present matter. The grundnorm bears its root in the Act passed by legislature in the form of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014.
11. Section 20 of the Street Vendors Act 2014 reads as under :
"20. Redressal of grievances or resolution of disputes of street vendor-
(1) The appropriate Government may constitute one or more committees consisting of a Chairperson who has been a civil judge or judicial magistrate and two other professional shaving such experience as may be prescribed for the purpose of deciding the applications received under sub section (2);
Provided that no employee of the appropriate Government or the local authority shall be appointed as member of the committee.
CS No. 27454/2016 Page no. 6 / 7(2) Every street vender who has a grievance or dispute may make an application in writing to the committee constituted under sub section (1) in such form and the matter as may be prescribed.
(3) On receipt of the grievance or dispute under sub section (2), the committee referred to in sub section 1 shall, after verification and enquiry in such manner, as may be prescribed, take steps for redressal of such grievance or resolution of such dispute, within such time and in such manner as may be prescribed.
(4) Any person who is aggrieved by the decision of the committee may prefer an appeal to the local authority in such form, within such time and in such manner as may be prescribed.
(5) The local authority shall dispose of the appeal received under sub section (4) within such time and in such manner as may be prescribed; Provided that the local authority shall, before dispossessing of the appeal, given opportunity of being heard to the aggrieved person."
12. The plain reading of Section 20 of the Street Vendors Act, 2014 shows that it incorporates the complete procedure for disposal of grievances of street vendors right from raising of claim to final disposal of appeal. The present issue has been explicitory dealt with in the case titled as Gainda Ram & Ors. v. M.C.D. & Ors. bearing I.A. No. 4 in I.A. Nos. 411-412 in Writ Petition (Civil) No. 1699 of 1987. Hence, the issue no.3 is decided against the plaintiff.
Relief
13. In view of my aforesaid findings on issue no.1, the suit of the plaintiff is dismissed. No order to costs. Decree sheet be prepared. File be consigned to the record room.
AJAY Digitally signed by
AJAY KUMAR MALIK
Announced in the Open Court KUMAR Date: 2021.12.14
on 14.12.2021 MALIK 17:42:21 +0530
(Ajay Kumar Malik)
Additional Senior Civil Judge
Central District: Tis Hazari Courts: Delhi
CS No. 27454/2016 Page no. 7 / 7