Delhi District Court
R/O A 122 vs Ndmc on 18 December, 2010
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IN THE COURT OF MS. VEENA RANI : COMMERCIAL CIVIL JUDGE; NEW DELHI
DISTRICT : NEW DELHI
NO. S144/10 ( 20112010)
Sh. Anil Kumar s/o Sh. Chander Bhan Gupta
R/o A 122, Chander Vihar,
Rama Krishna Apartments, Mandawali,
New Delhi110092 ..............Plaintiff
VS
NDMC
through its Chairperson
Palika Bhawan, Parliament Street
New Delhi. ............Defendant
ORDER
1. This order shall dispose of an application of the applicant/plaintiff u/o 39 rule 1 and 2 r/w Section 151 CPC for interim protection. Vide this application plaintiff is seeking ad interim injunction against the defendant, thereby, restraining the defendant and their officials, employees, agents, servant from dispossessing the plaintiff from his squatting site at Opposite Jarab Restaurant, Regal Building, Connaught Place, New Delhi and from creating any kind of hindrance and interfering in any manner in carrying on his business by selling of Gujrati handicrafts and small readymade garments at the aforementioned site without due process of law.
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2. Brief facts, as stated by the plaintiff are that plaintiffSh. Anil Kumar Gupta was carrying on his petty business/work of sale of Gujrati handicrafts and ready made garments at his squatting site at Opposite Jarab Restaurant, Regal Building, Connaught Place, New Delhi since 1977. The meager income being earned by the plaintiff from his said work is the only source of livelihood for him and his family members.
3. It is stated that on many occasions, the officials of the NDMC challaned and seized the readymade garments of the plaintiff from his squatting site without any rhyme and reason and same were later on released on the payment of fine against receipts issued by NDMC.
4. It is further stated that Government of India announced and published a policy for Urban Street Vendors in the year 2004 in order to provide and promote a supportive environment for earning livelihood to the street vendors as well as to ensure absence of congestion and maintenance of hygiene in public places and streets and pursuant to which NDMC framed a policy/scheme and invited application for allotment of tehbazari sites on the basis of old challan/receipts from the persons who are/were already carrying on the petty work/business in NDMC area. It is stated by the plaintiff that that he had applied to the NDMC for the allotment of Tehbazari site vide his application form No:2252 dt.29112007 and deposited the prescribed amount of Rs.100/ with the said application and NDMC assured that plaintiff can carry on the said business without any hindrance at aforementioned site till the Tehbazari site is allotted to him.
5. It is stated by the plaintiff that on 28082010, the officials of the NDMC visited the site of the plaintiff at opposite Jarab Restaurant, Regal Building and threatened him to dispossess forcefully from the said site and to seize his goods. It is stated that again on 12112010 officials of the NDMC came at the site of the plaintiff and tried to dispossess him from the site and threatened to close his business but due to intervention of passerby and other traders the dispossession of plaintiff from the aforementioned site was saved.
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6. It is submitted by the plaintiff that the said action of the defendant/NDMC are wrongful , illegal, malafide, uncalled for and unwarranted as the plaintiff is carrying on the said business for more that last 33 years at Regal Building and defendant has no right to remove or dispossess the plaintiff in the aforesaid manner till his application for allotment of tehbazari site is pending and without due process of law.
7. The defendant has been filed written statement/reply. It is replied that suit of the plaintiff not maintainable as the plaintiff has not approached the court with clean hands and concealed the material facts and the suit of the plaintiff is liable to be dismissed. It is further replied by the defendants that the present suit has been filed by the plaintiff without accruing any cause of action in his favour and failed to specify any cause of action in his favour hence, the suit is liable to be rejected in view of the provisions of oder VII rule 11 of CPC. It is replied by the defendant that the suit of plaintiff is not maintainable either under equity or under the law of land as the claim of the plaintiff is to be considered by Vending Committee and the suit is badly vitiated by suppression of material facts and stating of false facts, incorrect and misleading contentions without any documentary evidence, hence suit is liable to be dismissed. It is also replied by the defendant that the contents of the paint are wrong, false and denied in totality.
8. I have heard the ld. counsel for parties and gave my thoughtful consideration to the submissions made by the parties. I have also perused the documents placed on record.
9. The issues regarding the legality of street vending and the right to carry on their business have plagued vendors for long. A significant breakthrough came with the Supreme Court judgment on Sodhan Singh vs New Delhi Municipal Corporation. Singh, a vendor in New Delhi's Janpat area was frequently evicted and his goods confiscated. He appealed to the Supreme Court through a public interest litigation claiming that the action violated his fundamental rights, more specifically his right to carry on business or trade (Article 19(1)(g) of the Constitution of Mr. Anil Kumar Gupta Vs. N.D.M.C Page4 of 16 India). It was held therein that if properly regulated according to the exigency of the circumstances, the small traders on the sidewalks can considerably add to the comfort and convenience of the general public, by making available ordinary articles of everyday use for a comparatively lesser price. An ordinary person, not very affluent, while hurrying towards his home after a day's work can pick up these articles without going out of his way to find a regular market. The right to carry on trade or business mentioned in Article 19(1) (g) of the Constitu tion, on street pavements, if properly regulated cannot be denied on the ground that the streets are meant exclusively for passing or repassing and no other use (Sodhan Singh vs NDMC, 1989). The judgment is significant because it emphasises several important aspects of street vending and use of public space. It notes the positive role of street vendors in providing essential commodities to common people at affordable prices and at convenient places. Moreover, street vending, if regulated, cannot be denied merely on the ground that pavements are meant exclusively for pedestrians. The most important aspect is that street vendors are exercising their constitutional right to carry out trade or business hence it should be regulated properly and not abolished. Despite this judgment, municipal authorities continued to harass street vendors. In 1998, the National Alliance of Street Vendors of India (NASVI) was formed in Ahmedabad. It soon emerged as an independent federation of street vendors' organisations. In 1999, NASVI initiated a survey on street vending in seven cities. Based on the findings NASVI and SEWA advocated a national workshop on problems faced by street vendors. This was held on 2930 May 2001 at Vigyan Bhavan, New Delhi and was jointly organised by SEWA and the Ministry of Urban Development. The findings of the above mentioned survey was a central theme of this workshop. The minister for urban affairs announced on the second day that a National Task Force on Street Vendors with the objective of drafting a National Policy on Street Vending would be set up. This policy was drafted by September 2002 and in January 2004 the union cabinet accepted it. The government changed subsequently but the new gov Mr. Anil Kumar Gupta Vs. N.D.M.C Page5 of 16 ernment (headed by Sh. Manmohan Singh as PM) accepted the need for a national policy for street vendors. The task of finalizing this and also drafting a model law was given to the National Commission on Enterprises in the Unorganized Sector. A new version of the policy was framed which was almost similar to the earlier one. A model act was also framed in 2009 by the Ministry of Housing and Urban Poverty Alleviation. Of late some of the state governments have framed laws for street vending but there are many more that have not done so.
10. When the National Policy on Urban Street Vendors, 2009 was formulated the Town Vending Committee was constituted at City/Town levels which adopted a participatory approach and supervised the entire process of planning, organization and regulation of street vending activities, thereby facilitating the implementation of this Policy. Further, it provided an institutional mechanism for due appreciation of the ground realities and harnessing of local knowledge for arriving at a consensus on critical issues of management of street vending activities. The Town Vending Committee so constituted worked in collaboration with the local authority, Ward Vending Committee to assisted in the discharge of its functions.The overarching objective to be achieved through this Policy was to 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 ensuring that their vending activities do not lead to overcrowding and unsanitary conditions in public spaces and streets.
11. It would be also very relevant to mention that the Thereja committee had review powers. That is to say that even when an application was rejected the same could be re considered by the committee. It was provided that the onemember Thareja Committee will review the cases of those claimants whose claims were rejected for noncompliance of the standard of proof laid down by Resolution No. 28. If claimant adduced any other authentic proof in the form of government or local authority records, the genuineness whereof was Mr. Anil Kumar Gupta Vs. N.D.M.C Page6 of 16 unimpeachable, the Committee was authorized to reconsiders such proof presented to it to be adequate for review. If on perusal such proof was found to be unacceptable, the Committee could refuse to review its decision. The hon'ble Supreme Court laid down the following nine directions:
(1) Out of the 440 claimants, the onemember Thareja Committee will review the cases of those claimants whose claims have been rejected for noncompliance 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, SouthIndian languages, etc., to be determined by the Committee, handbills and pamphlets shall also be printed and Mr. Anil Kumar Gupta Vs. N.D.M.C Page7 of 16 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 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;
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(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 be Mr. Anil Kumar Gupta Vs. N.D.M.C Page9 of 16 made available to accommodate such surplus squatters/hawkers who cannot be accommodated in the five zones on account of paucity of space.
I. The directions (4) & (5) are significant inasmuch that the express directions were issued to the Hon'ble High Courts and the District Courts not to entertain claims which fell under the ambit of the Thereja Committee.
II. 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 977sites for squatting in NDMC area. Those who were aggrieved by the orders of the Thareja Committee filed IAs before the apex court questioning various orders of Thareja Committee. In the meantime, another judgment in the name of Sodan Singh v. NDMC and Ors. (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 Tehbazari. The Court also prescribed a cutoff 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).
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III. The Court thereafter nominated another Judicial Officer Shri V.C. Chaturvedi to undertake various duties and functions. The decisions of the Chaturvedi Committee both on the question of allotment of the kiosks/stalls or the 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.
IV. Coming to the legal status the Policy aimed to develop a legal framework through a model law on street vending which could be adopted by States/Union Territories with suitable modifications to take into account their geographical/local conditions. This was expected to be done 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. The Town Vending committee was also primarily responsible for the redressal of grievances and resolution of any dispute arising amongst the street vendors or between the street vendors and third parties including municipal officials and the police in the implementation of this Policy. It shall closely work with planning, municipal, police and other authorities and vendors' associations and other organizations to ensure that the National Policy on Urban Street Vendors is implemented effectively at the local level. Such was the legal framework provided under the policy.
I. It has been observed in the Gainda Ram v. MCD (decided on 8th Oct. 2010):
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"63. There is a Bill called a Model Street Vendors (Protection of Livelihood and 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 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 Mr. Anil Kumar Gupta Vs. N.D.M.C Page12 of 16 had, 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 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."
II. The hon'ble Supreme Court found that the innumerable interim applications had been filed along with various objections by the hawkers, most of the time collectively, complaining about steps taken by municipal authorities, namely, NDMC and MCD to prevent them from hawking and vending. However, the Hon'ble Supreme Court found it difficult to tackle this huge Mr. Anil Kumar Gupta Vs. N.D.M.C Page13 of 16 problem in the absence of a valid law. The passing of this bill becomes more urgent with the recent Supreme Court judgment (Genda Ram vs Municipal Corporation of Delhi). This is one of the best judgments delivered by the highest court in favour of the urban poor. It was delivered on 8 October 2010. The judgment states that town vending committees should be appointed to regulate street vending and ensure that they are allotted proper public space. The court has directed the government to pass the bill by 30 June 2011. The judgment (para 77, 79) states:
This Court is giving this direction (viz, passing of the bill) 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 a fundamental right under Article 19(1)(g). At the same time the right of the commuters to move freely and use the roads without 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 the law... The fundamental right of the hawkers, just because they are poor and unorganized, cannot be left in a state of limbo nor can it be left to be decided by varying standards of a scheme which changes from time to time under orders from this Court. III. Till such time when valid legislation is passed the grievances of the hawkers/vendors may be redressed by the internal dispute redressal mechanisms provided in the schemes. There is 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 Mr. Anil Kumar Gupta Vs. N.D.M.C Page14 of 16 by the Chairperson having at least 10 years legal or judicial background.
IV. The application before me relates to a poor vendor who has already applied to the appropriate authority through the Vending Committee and the matter remains still pending. I ought not comment on the functioning of the Vending Committee which has been constituted by the Hon'ble Supreme Court. All that I can comment on is that the grievance of the plaintiffherein could only be addressed within the legal framework of the National Policy on Urban Vendors, 2009. It is for the government to take a policy decision. The progressive steps have already taken by the governments like Orissa, Chhattisgarh and Andhra Pradesh.
12. This being the application for temporary injunction, it is an established rule of law that the plaintiff has to establish three aspects in the eyes of law : firstly that the plaintiff has a prima facie case made in his favour ; secondly that the plaintiff has a balance of convenience in his favour and ; thirdly that the plaintiff would suffer an irreparable loss in case the relief of temporary injunction is not granted to him. In order to discuss the forementioned ingredients it is important to discuss them distinctly in view of the facts of the present case.
13. WHETHER PRIMAFACIE CASE IS MADE OUT IN FAVOUR OF THE PLAINTIFF:
(i) The crux of the plaintiff's case is that he had duly applied to the NDMC for the allotment of the tehbazari site vide the application Form No. 2252 dated 29.11.2007 and had also deposited the prescribed amount of Rs.100/. The Hon'ble Delhi High Court had vide its order dated 09.09.2010 had directed the Zonal Vending Committee of the NDMC to decide the matter Mr. Anil Kumar Gupta Vs. N.D.M.C Page15 of 16 of the petitioners within one month. The NDMC and the police authorities were meanwhile restrained from dispossessing the petitioners for one month from 09.09.2010.
(ii) The plaintiffherein has not mentioned whether he was one of the petitioners before the Hon'ble high Court. The plaintiffherein has also not mentioned whether the hon'ble High Court was again approached for the necessary further directions. In the totality of the whole situation in the present case I am not inclined to grant temporary injunction.
WHETHER BALANCE OF CONVENIENCE LIES IN FAVOUR OF THE PLAINTIFF:
(iii) As far as the issue of balance of convenience arises it has to be considered whether or not the granting or the refusal of injunction causes any inconvenience to any party. In the present case the matter relates more to the legality whether the plaintiff is authorized to carry on the trade such being the state of affairs the balance of convenience is not in favour of the plaintiff.
WHETHER ANY IRREPRABLE INJURY LIES WOULD BE CAUSED TO THE PLAINTIFF:
(iv) The word injury means infraction or invasion of the legal right which a claimant impresses upon. In the present case the plaintiff has failed to establish prima facie case in his favour. Generally irreparable loss is linked to subject matter which are incomprehensible or are beyond the realms of equivalence in terms of liquidated value. When a subject of dispute is not comparable to liquidated damages/compensation, it is then that the aspect of irreparable loss is adhered to.
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(v) The application under Order XXXIX Rule 1 & 2 r/w S.151 C.P.C. is dismissed.
Nothing is tantamount herein above expressed, on the merits of the case. The parties have yet to prove their case on merits.
Put up for filing of documents, admissions-denial and for framing of issues on 10022011.
(Announced in open court on 18122010) (VEENA RANI) Commercial Civil Judge: New Delhi District New Delhi.
Mr. Anil Kumar Gupta Vs. N.D.M.C