Delhi District Court
Dwarka Parshad vs Municipal Corporation Of Delhi on 12 December, 2007
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IN THE COURT OF SH. VIVEK KUMAR GULIA
CIVIL JUDGE:DELHI.
Suit No. 1578/06
Dwarka Parshad ... Plaintiff
Versus
Municipal Corporation of Delhi ... Defendant
ORDER:
1. Vide this common order, I propose to decide the preliminary issue framed on 03.05.07 in Suit Nos. 1568/06, 1563/06, 1564/06, 1565/06, 1566/06, 1567/06, 1570/06, 1571/06, 1647/06, 1648/06, 1655/06, 1658/06, 1660/06, 1661/06, 1662/06, 1663/06, 1664/06, 786/06, 787/06, 788/06, 789/06, 790/06, 1642/06, 1643/06, 1644/06, 1645/06, 1572/06, 1573/06, 1574/06, 1575/06, 1576/06, 1651/06, 1652/06, 1654/06, 954/06, 955/06, 956/06, 957/06, 1641/06, 1653/06, 1411/06, 1412/06, 1413/06, 1656/06, 1657/06, 1659/06, 1640/06, 1649/06, 1650/06 and in the present suit since common question of facts as well as law are 2 involved herein.
2. The facts of all the aforesaid cases are quite similar. It is stated by the plaintiff that he is the allottee of a stall under tehbazari (hereinafter referred to as suit property) for the last 30 years and since then he is carrying on business at the site and has been paying tehbazari to the MCD against the receipt. It is also stated stated that the plaintiff has an electricity connection at the suit premises. Further stated that MCD used to collect tehbazari and to issue receipts but suddenly some concerned inspectors of MCD started collecting tehbazari charges in cash without issuing any receipts and despite making oral and written requests to the MCD for issuing the receipts for tehbazari for the use of shops / stalls allotted, the needful was not done. It is further stated that MCD started the demolishing the structure on 05.01.06 without giving any notice. It is also stated that running of business and earning of livelihood is a constitutional right which cannot be snatched away or interfered with without following legal procedure and aforesaid demolition has been carried out against the principles of natural justice and as an interference in the earning of livelihood by plaintiff. It is further contended that defendant has completely ruined the business of the plaintiff but plaintiff is still running his business at the site after the demolition of stall without any shelter but the defendant is adamant to dispossess the plaintiff from the site forcibly and unlawfully and with malafide intentions to allot the site to some other persons. With these facts, plaintiff has prayed for a 3 decree of permanent injunction restraining defendant from allotting the suit site to any other person and from interfering in the business of plaintiff at the suit site.
3. The MCD filed written statement in all the cases except a few. The MCD took preliminary objection that the present suit is not maintainable in view of the case of Gainda Ram and this Court has no jurisdiction to entertain the present suit. On merits, MCD has denied that the suit site has been allotted to the plaintiff by the MCD and that the plaintiff is carrying on business here for the last 30 years. Further it is stated that plaintiff has encroached upon the Government land and no tehbazari as alleged has been paid to MCD in respect of suit site. Further it is contended that the electricity connection in the name of plaintiff does not create any sort of right of tehbazari in favour of the plaintiff. It is also mentioned that the MCD has all the rights under the DMC Act to remove encroachment without notice and in the present cases, the encroachment has already been removed and no cause of action survives in favour of plaintiff. With these facts, defendant prays that suit be dismissed.
4. I have heard the learned counsel for both the parties and perused the record.
5. Before proceeding further to give finding on the issues under 4 consideration, I deem it necessary to refer to the landmark decisions of Apex Court whereby rights of tehbazari holders / squatters / hawkers were crystallized; directions to frame schemes and further to appoint committees to examine the claims of squatters in light of said schemes and to finalize the criteria set out by the Civic Authorities of Delhi to make allotments to squatters / hawkers, were issued.
6. It was first held in the case of Sodan Singh & Ors. Vs. NDMC & Ors. reported as (1989) 4 SCC 155 that the right to carry on trade or business was not covered by Article 21 of the Constitution of India but was covered by Article 19(1)(g) and could be reasonably restricted by law made under Article 19(6). While conceding that all public streets and roads in the country vests in the State, the Constitution Bench held that the State holds them as a trustee on behalf of public and 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 State is entitled to impose all necessary limitations on the character and extent of user by such pavement - hawkers. It was further clarified that there cannot be fundamental right of a citizen to occupy a particular place on the pavements where he can squat and engage in trading business nor can the hawkers assert a fundamental right to occupy permanently specific places on any pavement.
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7. Survey has been carried out by the MCD officials from time to time to identify the persons actually squatting in different areas on municipal lands. The last such survey was conducted in 1982. Thereafter, on the directions of the Supreme Court, the MCD determined the categories of persons to be considered for grant of permission to squat, subject of course to availability of the space. The criteria evolved by MCD is stated as under:
(a) Persons who were found squatting continuously in the survey carried out by the Corporation as on December 23, 1982 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 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 of 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 6 squatting anterior to the filing of the Writ Petition.
8. After this, 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.
9. The following guidelines as to the criteria for priority allotment were issued in the second case of Saudan Singh reported as (1992) 2 SCC 458:
(1) Persons who have been found squatting between 1970 and 1982 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) In so far as casual tehbazari on weekly holidays, festivals / melas, etc., is concerned, as well as at the 67 weekly bazaars 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 were not 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 7 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 licenses under Section 420 of 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 not been granted a license. However, such permission will be subject to any restrictions that may be imposed by the residential associations of different colonies.
10. Further the Apex Court gave directions to MCD and NDMC to give one more opportunity to the squatters before finalizing scheme by issuing public notices / advertisement for inviting objections from the hawkers / squatters against the proposed scheme.
11. After that another judgment was pronounced by the Apex Court in the year 1998 in continuation of two earlier judgments in the case of Saudan Singh whereby the interim reports submitted by the Thareja Committee constituted pursuant to recommendations of Lok Adalat and orders of the Supreme Court were considered and procedure to be followed in making final allotments recommended by the committee 8 was accepted by the Court with certain modifications. Directions were also issued regarding construction of kiosks, eviction of unauthorised hawkers / squatters, submission of claim application, mode of issuing public notice, fixing cut off date, ban on further I.A.s, change of trade by claimants. A senior Judicial Officer was also nominated to undertake various duties and functions as directed by the Supreme Court and it was held that decisions of this sole member Committee both on questions of allotment of kiosks / stalls or the sites for tehbazari and also as to quantum of arrears of tehbazari shall be final and shall not be questioned either by claimants or the NDMC before any authority or Court of law.
12. In the same context, the decision given by the Supreme Court in Gainda Ram & Ors. Vs. MCD, reported as (1993) 3 SCC 178 is also a bench mark. In this decision, the Supreme Court while referring to guidelines framed by it in the case of Saudan Singh, declared the sub classification made by MCD in regard to squatters / hawkers falling under category (1) of the aforesaid guidelines as unwarranted and further it was clarified that those squatters / hawkers who have not been expressly given covered tehbazari / kiosks / stalls / shops will not be given such facility under the scheme which is being finalized and MCD would not be permitted to change the nature of tehbazari, who have expressly permitted facility of covered tehbazari / kiosks / shops / stalls in the past but those who are not given that facility will not be entitled to it 9 and they will be liable to be evicted if under the pretext of temporary covers / umbrellas they tried to put up a semi permanent covered over the area on which they are permitted to squat. It was further held in clear terms that "those who do not fall in any one of the said four categories have no right as they fall outside the scheme and are not entitled to any protection. Since all those who claim to be covered under the scheme and whose claims are awaiting scrutiny are protected by this order, we see no reason why their petitions/appeal/suits, etc., should be kept pending. We, therefore, propose to dispose them of by this order......... With these observations, all the writ petitions/appeals/SLPs/suits, etc., pending in this Court / the High Court of Delhi and Courts subordinate to it shall stand terminated by this order forthwith. In other words, no civil litigations commenced by or on behalf of the squatters / hawkers pending in the Courts of Delhi shall survive. No further litigation by or on behalf of any squatter / hawker will be entertained but if the MCD violates any part of this Order the concerned party governed by this order will be entitled to file an I.A. for directions. The interim stay orders granted in those cases shall also stand vacated. The MCD will, however, maintain the status quo till the verification is completed and only in regard to those hawkers / squatters whose claims are negatived, will it be open to the MCD to take action for their eviction ten days after the claim is rejected. The MCD will also ensure that future encroachments do not take place defeating the rights of existing squatters / hawkers governed under the 10 scheme. It will also protect the interest of the shopkeepers as they too have a similar right under Article 21 of the Constitution."
13. Pursuant to orders of the Supreme Court, a senior Judicial Officer was appointed to look into the question as to whether the implementation of the scheme by the MCD had been consistent with the norms and procedure indicated by the Apex Court and to make a report in this regard. While accepting the majority of suggestions put forward by the sole member Committee, the Supreme Court directed that all applicants held ineligible shall be given an opportunity by MCD to make representations for the review of their cases and zonal heads were directed to reexamine all such cases; a fresh exercise was ordered to be carried out by the MCD to identify new approved squatting sites in all the zones and after finalizing the list of eligible squatters and approved squatting zones, fresh preference applications were directed to be invited; after the completion of exercise the zonal heads of the MCD and SHOs of the area were made personally liable for ensuring that there is no squatting in non squatting zones. Before proceeding to embark upon this exercise, the MCD was directed to publish once at least in three local daily newspapers informing all the concerned about the gist of the order and to intimate to the concerned squatters to remain present at notified places and time on specified dates for supporting their claims for allotment of squatting sites. Further the aggrieved party - squatter concerned was permitted to file a written representation before the same Judicial Officer and it was clarified 11 that decisions to be rendered by him on these representations shall be final and not be subject to the scrutiny of any Court.
14. In view of the above, it can be summed up that the squatters / hawkers / tehbazari holders were given ample opportunities to put forward their claim for allotment of squatting / hawking site before the committees appointed by the Apex Court from time to time and it was specifically held that the decision of the committees as to the eligibility of person to squat or hawk at a particular site will be final. Further all the suits / IAs or other proceedings pending in the different Courts in respect of matters pertaining to squatter/hawker were disposed of and further litigation on same issues was barred.
15. Now I come to the present cases. The plaintiffs have mentioned that they were allotted suit site by the MCD for tehbazari but they were not issued tehbazari receipts after a particular period. It is also stated that the permanent structure at the suit site has already been demolished by the MCD. Whereas MCD denied the alleged allotments. However, in any case, three situations can be visualized. First is that the plaintiff did not put forward his claim before the aforesaid Committees. Another situation can be that the plaintiff submitted his claim but it was rejected. And the third and the last situation can be that plaintiff's claim was accepted and he was allotted the suit site. As far as last situation is concerned, neither it applies to the facts of the case set out by the plaintiff 12 in his plaint nor the material on record favour it. If plaintiff's case falls in first category, he cannot be allowed to seek extension of time for scrutiny of his claim for tehbazari and is not entitled to any right as to tehbazari in the garb of filing of the present suit. In second situation if plaintiff's claim was rejected because of insufficient proof furnished before said committees, then the decision of the committee can not be sought to be reviewed by directing trial in the present suit in view of above mentioned caselaws and if it was rejected because MCD failed to consider it in light of guidelines/directions given by the Supreme Court, then the plaintiff was only entitled to file the IA before the Supreme Court for its directions as filing of suit was specifically barred.
16. It is observed that in most of the cases, only 23 tehbazari receipts have been filed and these too pertain to 1980's and in few cases to early 90's. All it shows that plaintiffs are carrying on their business at the suit site without any permission of MCD or in other word, illegally. Few of the plaintiffs have also placed application for renewing of their licenses / allotment but none of them have clarified whether their applications were accepted or not. This omission clearly implies that these must have been rejected for reasons discussed above. Moreover, not a single plaintiff has placed on record his allotment letter to support his contention that he was allotted the suit site by the MCD and it reflects that the assertions of plaintiffs mentioned in the plaint are totally baseless and frivolous.
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17. Another plea of plaintiffs is that since they have been provided electricity connection since long their claim is prima facie genuine. In my view this plea is not sustainable since the mere existence of electricity connection in the name of plaintiffs cannot be a valid substitute for allotment by MCD to squat at the suit site.
18. In view of discussion made hereinabove and pleadings of the parties, it appears that plaintiffs have not been allotted the suit site for tehbazari / squatting by the MCD and if this is the case, it can be said that they are encroachers of the public land. The Apex Court have directed MCD and police authorities again and again to remove the encroachers so that the claim of genuine tehbazari holders / squatters might not be defeated and inconvenience to general public may be avoided. Being encroachers, plaintiffs do not deserve any relief from this Court.
19. At the same time, since plaintiffs have mentioned in their plaint that the permanent structures of the suit site have been removed by the MCD during the demolition action, primafacie it appears they do not have any cause of action for filing the present suits.
20. For foregoing reasons, I hold that all the abovementioned suits are not maintainable. Preliminary issue is also decided against the 14 plaintiffs and in favour of MCD. Accordingly, all suits are dismissed. Considering that all the plaintiffs belong to poor stratum of our society, they are not being burdened with costs. Copy of the order be placed in each of the suit files. Files be consigned to the Record Room.
Announced in the Open Court [ VIVEK KUMAR GULIA ] Today on 12th day of CIVIL JUDGE:DELHI. December, 2007.