Central Radio & Electronics ... vs M.C.D. And Ors.
2002 Latest Caselaw 455 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioners, who are five different traders' associations, representing the traders of Bhagirath Palace, Chandni Chowk, Delhi have filed this writ petition by way of Public Interest Litigation. They are concerned with the squatters in this area. The prayer made in this writ petition runs as under:

1. To issue an appropriate writ/order/directions in the nature of MANDAMUS whereby the respondents be directed to refrain from issuing and/or allotting any place on Mor Sarai road, either road or pavements, for being used as hawking and squatting sites by the hawkers and squatters;

CWP NO:7741/2000

2. Further directions to the respondents in the nature of a declaration that Mor Sarai (shown more appropriately in RED in site plan) would remain on AS IS WHERE IS BASIS and that there can be no change of user of the said place by respondents in any manner by allotting any space over it for use as hawking and squatting sites;

3. The Land & Estate Department of MCD be directed to file a site plan of the said Mor Sarai Road stating therein the area of pavement existing at present.

4. Further direction to appoint Local Commissioner which may comprise of Officers of MCD, Delhi Fire Service, Delhi Traffic Police and Office bearers of petitioner Associations to apprise this Court of the factual position in regard to Mor Sarai Road and/or the site where it is proposed to allot Tehbazari sites.

2. From a perusal of the aforesaid prayer it is clear that the petitioners are aggrieved against grant of Tehbazari rights to the hawkers and squatters on Mor Sarai road and pavements. It is stated in the writ petition that although Mor Sarai road is a non-squatting zone, the respondents are proposing to issue Tehbazari licenses to the hawkers and squatters which would create inconvenience to the general public, shopkeepers of the market as well as residents of Railway colony known as Mor Sarai colony. It is mentioned that this road is 30 ft.wide inclusive of pavements and on this narrow road no further congestion can be afforded by allowing the squatting of the area by hawkers and squatters. It is, inter alia, stated in the writ petition that even presently the said road remains jam packed throughout the day due to heavy movement of pedestrian and other vehicular traffic and that unauthorised hawkers and squatters are also squatting on the said road. It is further stated that the proposed change of user of the said Mor Sarai road would not only lead to more congestion, choking of roads and traffic jams but would also lead to loss of trade and business for the shopkeepers and businessmen of the area. It is stated that in the vicinity of Mor Sarai there are four schools including the MCD Primary School, Presentation Convent School and Kucha Jogdhyan Senior Secondary School for girls. It is also stated that the Dhalao on Mor Sarai is the only place from where the truckloads of garbage are lifted by the Municipal trucks. On the said road are installed the high tension transformers by the Delhi Vidyut Board. Also various civic amenities such as MTNL cables, electrical wires of DVB, sewer lines of the Sewerage department pass underneath the road on Mor Sarai road. All these amenities require frequent maintenance by the departments concerned and in case any hawking and squatting or Tehbazari is permitted then carrying out the maintenance services would become all the more difficult and the woes already being suffered by the shopkeepers would also aggravate. It is also stated in the writ petition that taking into consideration the fact that the respondent MCD proposes to give Tehbazari sites to hawkers and squatters on Mor Sarai road, it has completely forgotten the fact that a statutory duty is cast upon it to keep in mind that all policies proposed to be implemented should more be in the interest of the general public rather than against the public policy. The Supreme Court as well as the Govt.of NCT of Delhi and the Union Government are making concerted efforts and plans to decongest the walled city but the officials of MCD have other things in mind and are using their energies in the wrong direction for their personal gains.

3. The grant of Tehbazari licenses by MCD to hawkers and squatters in different parts of Delhi has chequered history. As per the averments made in the writ petition which are substantially undisputed, the first petition in this respect being CWP No. 552/87 entitled Rajinder Kumar Vs. MCD was filed in the Apex Court. On 31st October, 1987 an order was passed in this writ petition on the assurance given by the counsel for the MCD to the effect that the MCD shall furnish a list of all areas available for Tehbazari licenses under its jurisdiction and shall also provide a site plan indicating the localities of such areas. Thereafter another writ petition, namely, Gainda Ram Vs. MCD (1687/87) the Supreme Court passed the following order on 12th May, 1993:

"The MCD will also ensure that future encroachments do not take place defeating the rights of existing squatters/hawkers governed under the scheme. It will also protect the interest of the shopkeepers as they too have a similar right under Article 21 of the Constitution."

4. It is not in dispute that matters concerning squatters/hawkers have come up before the Apex Court in various cases and directions in these cases were passed from time to time. The relevant order would be order dated 1st May, 1997 in the case of Gainda Ram and Others Vs. M.C.D. and Others . The portion of the said order, material for our purposes, reads as under:

"A fresh exercise is ordered to be carried out by the Municipal Corporation of Delhi to identify new approved squatting sites in all the Zones. The Zonal Heads, Administrative Officers of the Zones, representative of the Traffic Police and two or three representatives of the hawkers of the zones selected on random basis shall identify fresh squatting zones so that squatters are properly rehabilitated and not simply uprooted to deprive them of their livelihood.......

After finalising the list of......approved squatting zones fresh preference applications shall be invited and thereafter allotments be made first in accordance with preference applications......."

5. After the aforesaid order the Zonal Committees were constituted by the MCD in 12 Zones. Thereafter, another order dated 13th April, 2000 was passed by the Supreme Court directing the MCD to complete the identification of squatting sites.. It was followed by order dated 28th July, 2000 directing the MCD to file an affidavit stating the squatting and non-squatting sites identified by the Zonal Committee along with map showing the squatting area in `Green' and non-squatting area in `Red'. Vide order dated 4th August, 2000 the Supreme Court accepted the aforesaid report of the MCD. The relevant portion of this order reads as under:

"In the light of the affidavit in I.A. No.317 dated 02nd August 2000 filed in the Court today on behalf of M.C.D., which is accompanied by a site plan, it is seen that areas marked in red colour are not treated to be squatting zones but the lanes marked in green colour are shown to be squatting zones. Learned counsel for the applicants in these applications submit that at least in the admitted areas which are shown to be squatting zones marked in green colour and where, according to her, squatters are already squatting, they may be permitted to squat. So far as the areas shown in green colour in the site plan are concerned, learned counsel appearing for the shopkeepers had no objection. Learned counsel for the M.C.D. also has no objection. Therefore, in the light of what is stated in paragraph 4 of the said affidavit as regards New Lajpat Rai Market and Lajpat Rai Market, no squatting in front of the said markets abutting Subhash Marg and Chandni Chowk is permissible. Subject to that exception, in the areas marked green in the site plan the applicants, if they are already squatting, will be permitted to squat till furthers in the other I.As."

6. As per the counter affidavit filed by the MCD, the matter was listed again on 1st December, 2000 when the Supreme Court gave general directions to the MCD to complete the work of allotment sites in the identified squatting areas within two-three months. This affidavit further states that Mor Sarai has been identified as squatting area and since the squatting is permitted there, the MCD can give Tehbazari licenses in this area. It is further stated that the MCD would not allow squatting in the area which has been identified as non-squatting. Mr.D.K.Mehta, learned counsel appearing for the petitioners, submitted that the site plan filed before the Supreme Court, copy of which was filed in these proceedings as well, was not correctly prepared and further that he argued that permitting of squatting on that area in question would lead to various difficulties as pointed out in the writ petition.

7. Having heard the learned counsel for the parties and in view of various orders passed by the Hon'ble Supreme Court, we are of the opinion that the grievances, if any, of the petitioners can be taken up by the petitioners by filing appropriate proceedings in the Supreme Court only as, MCD has treated the Mor Sarai as squatting zone which has been permitted by the Supreme Court. This court therefore cannot pass any order or give any direction to the MCD which would be contrary to the directions given by the Supreme Court.

8. This writ petition is accordingly dismissed with liberty to the petitioners to approach the Supreme Court for appropriate directions.