Delhi District Court
District : New Delhi vs Ndmc on 30 April, 2012
1 of page 16
IN THE COURT OF MS. VEENA RANI : COMMERCIAL CIVIL JUDGE; NEW DELHI
DISTRICT : NEW DELHI.
NO. S13/12 ( 31032012)
Smt. Meena
W/o Sh. Manjhi Bhai
R/o A221, Jahangirpuri,
Delhi. ..............Plaintiff
VS
NDMC
through its Chairperson
Palika Kendra, Parliament Street
New Delhi.
2.Director (Enforcement), NDMC
through its Director
Pragati Bhawan, NDMC
New Delhi.
3. Station House Officer (SHO)
P.S.Connaught Place,
New Delhi. ............Defendants
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 removing/dispossessing the plaintiff from her business site i.e. Janpath, Near Inidan Oil Bhawan, New Delhi .
2. Brief facts, as stated by the plaintiff are that plaintiff Smt. Meena was carrying on her Meena Vs. NDMC and anr.
2 of page 16 petty business/work of sale of handicraft items from the site i.e. Janpath, Near Indian Oil Bhawan, New Delhi since 1984. The meager income being earned by the plaintiff from her said work for the livelihood for her and her family members.
3. It is stated that plaintiff has been paying the removal charges time to time since its occupation for selling handicraft items from her business place since 1984 to the defendants as they often to collect the same and issued receipts in lieu of releasing articles. Plaintiff averred that she has also applied for the allotment and deposited allotment free of Rs.100/ vide receipt dt.26112007 under the Scheme for Urban Street Vendors NDMC 2006. It is stated that when the police officials and officials of the defendant NO:1 and 2 started visiting for removal of the business of the plaintiff from the site in question, then plaintiff applied for stay before the Presiding Officer, Zonal Vendors Committee, NDMC and a restraining order was passed by Ld. Presiding Officer of Zonal Vendors Committee, NDMC in favour of the plaintiff which was extended up to 31122011. It is averred that now the vide notification dt.26122011 Government of India has extended the same for three years i.e. till 31122012. It is stated that the claim of the plaintiff is still pending under the aforesaid scheme and plaintiff is entitled for the allotment of site for carrying out her business but the officials of the defendants are harassing the plaintiff and trying to remove her from the site in question.
4. It is submitted by the plaintiff that the said action of the defendants are wrongful , illegal, malafide, uncalled for and unwarranted as the plaintiff is carrying on the said business since 1984 at the site in question and defendants have no right to remove or dispossess the plaintiff.
5. The defendants have 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 Meena Vs. NDMC and anr.
3 of page 16 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 in view of the fact that the allotment of vending sites is under the exclusive jurisdiction of the Vending Committee constituted by the Hon'ble High Court of Delhi as per the direction of the Hon'ble Supreme court of India, hence the present suit of the plaintiff is liable to be dismissed. It is stated that petitioner is not found eligible as per prevailing rules and thus her application is not accepted. The present suit of the plaintiff is not maintainable as the same is based on wrong, incorrect, false and baseless facts having no iota of truth, hence the same is liable to be dismissed. It is also replied by the defendant that the contents of the plaint are wrong, false and denied in totality.
6. 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.
7. 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 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 Meena Vs. NDMC and anr.
4 of page 16 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 Constitution, 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 emphasizes 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 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 Meena Vs. NDMC and anr.
5 of page 16 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.
8. 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.
9. 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 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:
Meena Vs. NDMC and anr.
6 of page 16 (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 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 Meena Vs. NDMC and anr.
7 of page 16 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;
(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 Meena Vs. NDMC and anr.
8 of page 16 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 made available to accommodate such surplus squatters/hawkers who cannot be accommodated in the five zones on account of paucity of space.
10. 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.
11. 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 Meena Vs. NDMC and anr.
9 of page 16 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).
12. 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.
13. 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 Meena Vs. NDMC and anr.
10 of page 16 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.
14. It has been observed in the Gainda Ram v. MCD (decided on 8th Oct. 2010):
"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 Meena Vs. NDMC and anr.
11 of page 16 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 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, Meena Vs. NDMC and anr.
12 of page 16 structured regulation and legislation is, urgently necessary to control and regulate fundamental right of hawking of these vendors and hawkers."
15. 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 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.
16. Till such time when valid legislation is passed the grievances of the hawkers/vendors Meena Vs. NDMC and anr.
13 of page 16 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 by the Chairperson having at least 10 years legal or judicial background.
17. 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.
18. 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.
19. WHETHER PRIMAFACIE CASE IS MADE OUT IN FAVOUR OF THE PLAINTIFF:
The crux of the plaintiff's case is that he had duly applied to the NDMC for the Meena Vs. NDMC and anr.
14 of page 16 allotment of the tehbazari site vide the application dt.26112007 and had also deposited the prescribed amount of Rs.100/. It is the case of the plaintiffherein that he is protected by S.3 of the National Capital Territory (Special Provisions) Act, 2009 which extended till 31.12.2014.
20. It would be relevant to mention here that the special provisions for the National Capital Territory of Delhi, for a further period up to the 31st day of December, 2014 and for matters connected therewith or incidental thereto, were made in order to deal with the various problems of Delhi including the vendors. There had been phenomenal increase in the population of the National Capital Territory of Delhi owing to migration and other factors resulting in tremendous pressure on land and infrastructure leading to encroachment or unauthorised developments which were not in consonance with the concept of planned development as provided in the Master Plan of Delhi, 2001 and the relevant Acts and building byelaws made thereunder. More time was required for orderly implementation of scheme regarding hawkers and urban street vendors. As per the provision of S.3 the the Central Government was supposed to take all possible measures to finalize norms, policy guidelines, feasible strategies and make orderly arrangements to deal with the problem of encroachment or unauthorised development in the form of encroachment by slum dwellers and JhuggiJhompri clusters, hawkers and urban street vendors. The "Delhi Laws (Special Provisions) Act, 2006" was enacted to address orders and directions passed by the Supreme Court and the High Court of Delhi in cases pending before them regarding contentious issues which were confronting the city of Delhi, namely, unauthorised constructions, commercial use of residential premises, encroachment on public land by slum dwellers and JhuggiJhompri clusters, problems relating to urban street vendors, which were affecting the lives of millions of people. During the period, the said Act was in force, the Municipal Corporation of Delhi and the New Delhi Municipal Council have formulated the Hawkers Meena Vs. NDMC and anr.
15 of page 16 and Urban Street Vendors Scheme and have started implementing the same, but some more time was needed to ensure its orderly implementation. Similarly, the guidelines and regulations for regularisation of unauthorised colonies in Delhi was issued. The legislation is the prerogative of the law makers. The courts would not have a say on the policy matters.
It is also pertinent to mention here that plaintiff herein is carrying on the business of readymade garments without having any proper licence. Prima facie no case is made out in favour of the petitioner.
21. WHETHER BALANCE OF CONVENIENCE LIES IN FAVOUR OF THE PLAINTIFF:
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.
22. WHETHER ANY IRREPRABLE INJURY LIES WOULD BE CAUSED TO THE PLAINTIFF:
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.
23. The application under Order XXXIX Rule 1 & 2 r/w S.151 C.P.C. is dismissed.
24. Nothing is tantamount hereinabove expressed, on the merits of the case. The parties have yet Meena Vs. NDMC and anr.
16 of page 16 to prove their case on merits.
25. Put up for framing of issues, filing of documents and admission-denial, if any, on 04072011.
(Announced in open court on 2342011) (VEENA RANI) Commercial Civil Judge: New Delhi District New Delhi.