Bhagwan Dass vs New Delhi Municipal Committee
1992 Latest Caselaw 602 Del

JUDGMENT

J.K. Mehra, J.

(1) This is a writ petition filed by the petitioner challenging his removal from one-third space under a tree opposite to Odean Cinema. Connaught Place, New Delhi.

(2) This case presents an ideal example of how civic body can discriminate between three citizens similarly placed and bow one of the three discriminated against has to run from pillar to post to protect his means of livelihood. The conduct of the civic body as is revealed in this petition by no means can be described as bonafide.

(3) Some of Silent facts in brief are as under- The circular space under the tree is shared between 3 parties. There are two others who are selling betels, pan masala, cigarettes etc. while the petitioner was originally occupying the space and was selling there from "Allu-ki-Tikkiya" without any license or contract. His occupation was sought to be regularised by the respondent some time in 1964 whereby he was granted a license to sell "Allu Ki Tikkia" from that one-third apace. This license was cancelled in the year 1965 notwithstanding the fact that he had deposited Tehbazari charges @ Rs. 25. p.m.. It may be pointed out that such cancellation was effected only in the case of the petitioner to carry on the licensed trade under the said tree but no explanation is forthcoming from the respondents as to why the two others were not given the same or similar treatment. The petitioner challenged his removal and moved this court. His writ petition was dismissed where after he went to Supreme Court. In 1968, the petition of the petitioner was dismissed by the Supreme Court. In 1970, however, the space was again allotted by Ndmc to the petitioner for the same trade i.e. for selling "Allu Ki Tikkia". It was noted in 1970 that since the petitioner had been sitting at the said space for over 20 years, he was granted license for one year at a license fee of Rs. 385.00 p.m. instead of Tehbazari @ Rs. 25.00 p.m. which was being charged earlier. This license was renewed in 1971, but in 1972, the authorities cancelled the license on the ground that higher offers for the same space had been received which means that the sole object for removal of the petitioner was profiteering. As a consequence of this, the petitioner was once again forced into litigation and filed a writ petition where the civic authorities took a stand contrary to the reasons for cancellation contained in its resolution i.e. the sale of eatables can not be permitted from that site. The petitioner lost that writ petition also and had to go to Supreme Court where the Supreme Court entertained the plea of the petitioner and directed that his case should be considered sympathetically because he had been there for such a long time.

(4) Following the Supreme Court's observations, the petitioner was allotted the same site vide Resolution No.2 dated 4.5.73. This license was given for one year only. After one year of this the Ndmc again cancelled the allotment. On the cancellation of the license, the petitioner had to once again come to the court challenging such cancellation as malafide and arbitrary.

(5) According to the respondent, the possession had already been taken by them before filing of the writ petition following cancellation of the license. This fact was disputed by the petitioner who had drawn my attention to the orders of this court dated 17.10.74 whereby this court after hearing both the parties passed the order restraining the respondent from dispossessing the petitioner. This order was passed following the interim order which was initially passed at the time of issuing the show cause notice.

(6) It has further been pointed out that the petitioner had last year met with an accident and has suffered disability which has forced him to walk on creches.

(7) These facts are not disputed, but it is pointed out that the license of the petitioner having come to an end and possession after the termination of the license having already been taken by Ndmc, the petitioner had no right to continue to be in occupation of the site in question. Furthermore, it is pointed out that the petitioner did not reveal the true facts to this court even when he presented the writ petition and obtained an exparte stay order by suppression of facts.

(8) I am unable to accept this because I find that the stay was confirmed after giving full hearing to the parties and in case the petitioner had already been dispossessed the question of confirmation of stay could not arise and it appears that the petitioner has all along been in possession except for a short duration when he was removed from the site forcibly and for which a Ccp was filed against the civic authorities.

(9) The respondent has further contended that Tehbazari by itself does not confer any legal right on the petitioner to continue to be in occupation of the said site and also that mere possession does not confer any legal right to make him the owner. It is nobody's case that the petitioner claims to be the owner of the space. The other point regarding Tehbazari could be considered to have some force if the law was only technicalities and had not been interpreted by the Hon'ble Supreme Court equitably nearing in mind the provisions of the Constitution of India. The Hon'ble Supreme Court of India had an occasion to consider the cases of squatters in a number of cases including "Saudan Singh Vs. N.D.M.C." reported as where the Supreme Court was pleased to interpret the terms "profession" "occupation" "trade" "business" as understood under Article 19(i)(g) of the Constitution of India. This particular case for interpretation again came up after the Scheme had been formulated by the Ndmc and a Committee was constituted which had submitted its report and Ndmc passed Resolution No. 28 dated 10th November 1989 pursuant to there commendation made by the Lok Adalat on November 19, 1989. The Committee was appointed by the Supreme Court vide its order dated 20, 1988. One of the decisions under the said Scheme was that squatters up to 1977 shall be eligible for allotment of a shop, kiosk, stall etc. In the case of the petitioner he had admittedly been a squatter on that site for about 20 years prior to even 1970. He has not yet been allotted any kiosk or stall. The least that the civic authorities could be doing for him was to allow him to continue to earn his livinghood from the site already in occupation and for which he has been regularly paying the charges to the respondent till the date the respondent refused to accept those. More so the person has now also suffered physical disability. In the said decision of Saudhan Singh (supra) after the report was submitted, the Supreme Court observed as under:-

(10) We have given our anxious consideration to the rival points of view and having regard to the fact that we are dealing with the question of livelihood and survival of a large number of families, we do not think we would not be justified if we adopt a compassionate approach so as to ensure that genuine squatters/hawkers are not denied their daily bread at the altar of technicalities while at the same time ensuring that those who are out to exploit and abuse the process of law do not succeed, we must also realise that a large number of squatters/hawkers have since filed proceedings which await scrutiny. In order to ensure that genuine claims are not defeated and in order to further ensure that the situation in the five zone identified earlier does not remain in a state of flux for all times to come. we deem it necessary to give apropriate directions, here and now, in regard to Ndmc cases.

(11) In the light of these facts. I consider that it is a fit case where the court should intervene in favor of the petitioner to protect his livelihood.

(12) Before I conclude I must record an undertaking which the petitioner gives through his counsel that he shall not vend Allu Ki Tikkia from that spot under the tree and wilt only be carrying on the trade of selling betels, cigarettes and such like items like the other two.

(13) In this view of this matter, I accept this writ petition and make the rule absolute. I quash the order cancelling the allotment in favor of the petitioner and further order that he shall not be removed from the site i.e. the site in dispute wherefrom he is presently carrying on the said trade subject to his paying Tehbazari charges at the rate of Rs. 385.00 p.m. or such reasonable increase therein as may be resorted to by the respondent for all the three occupants under the said tree in future. The said rate shall also not, in any event, exceed the rate charged from the other two occupants. The petitioner is further directed to deposit the arrears of tehbazari charges within a period of 6 months from today. In the circumstances of the case, the parties are left to bear their own costs.