Chandni Chowk Sarv Vyapar Mandal ... vs Municipal Corporation Of Delhi ...
2005 Latest Caselaw 1388 Del

JUDGMENT

S. Ravindra Bhat, J.

Page 1563

1. This litigation is symptomatic of much that is remiss with Delhi. A city with glorious traditions, a history and heritage that measures- even surpasses most in the world, today, it is facing endemic and ever challenging problems. To the uninitiated, these problems are insurmountable; they however, cloud the undying resilience of a city which is two millennia old and which has reinvented itself seven times. At the heart of the city's tradition, is Chandni Chowk, a living, breathing reminder of the part, where the past and present Page 1564 co-exist, in a seamless time-wrap. The petitioners, shop-keepers in Chandni chowk, complain violation of their rights, by the MCD, which has issued a notice threatening demolition.

2. The first petitioner in W.P.(C) No. 4133/2005, a registered Association (hereafter 'Mandal') claims to represent shopkeepers in Chandni Chowk. The petitioners have approached this Court under Article 226 of the Constitution, claiming to be aggrieved by an order/ Public Notice dated 14-15th of February, 2005 issued by the Respondent (hereafter 'MCD'). The petitioners in the other writ petitions too have challenged the impugned notice/order dated 14th February, 2005. The petitioners in all these proceedings claim to be occupants of shops in Chandni Chowk are also allottees/ occupiers of Municipal 'Chabutaras'. The petitioners have enclosed Chabutaras with 'Takhatbandies'. The impugned public notice requires removal of all the takhatbandis (enclosures on the chabutras) failing which the MCD has threatened demolition. The notice reads as follows :

'ANNEXURE P-1 Punjab Kesari Tuesday 15th February DELHI.

The allottees/occupiers of chabutras of mcd in ward no. 111, 112 and 113 chandni chowk and its surrounding arreas to pay attention on 14th February, 2005 by way of public address system this announcement is being made that the allottees/ occupiers of chabutras of mcd in ward no. 111, 112 and 113 who were allotted open to sky chabutras by mcd may remove unauthorisedly constructed structures over he chabutras themselves, otherwise mcd will be obliged to remove the same with force with the help of police. By way of this public notice the allottees/ occupeirs are being once again informed that they should remove their property from the chabutras be 16th February, 2005 otherwise mcd will not be responsible for any loss caused bythe action of removal of encroachment.

It is hereby informed that in case after 16th February, 2005 encroachment/ property is not removed from there then the same will be removed during encroachent removal action at the risk and cost of the allottees/ occupiers.

SD/ Administrative officer City zone'

Pleadings of the petitioners

3. It is averred that when the durbar of King George V was to be inaugurated, in 1911, the city authorities indicated a line in front of all the shops in Chandni Chowk, for the purposes of aligning the buildings, and creating symmetry. This was necessitated, it is said, because existing shops had been constructed at different points in time, and at varying points, with the result that public areas were asymmetrical. Later, certain bye laws were framed in the year 1921 ('the 1921 bye-laws') by the erstwhile Town Municipal Committee under provisions of the Punjab Municipal Corporation Act, 1911. Chabutras, or platforms, were constructed by the municipality on such Page 1565 irregular/uneven strips, facing each shop. Under the bye-laws (hereafter called the '121 Bye-laws') the occupiers of shops became allottes of chabutaras subject to terms and conditions and, it is averred they were permitted to put up enclosures around the chabutaras (known as 'Takhatbandi'). All the petitioners claim to be paying rents for substantially long periods of time. The petitioners place reliance on the note in the 1921 bye-laws to say that takhatbabndies were forbidden in all other areas except Chandni Chown and Khari Baoli.

4. The petitioners aver that in 1965 notices were issued to certain shopkeepers for removal of structures. Some suits were filed, which were decreed. The MCD appealed; the appeals were rejected; the matter was carried in appeal to High Court which rejected the Corporation's appeal by its judgment which is reported as Municipal Corporation of Delhi v. Gulzari Lal Jain 1975 Raj. The petitioners further rely upon a judgment reported as Haveli Ram v. MCD 50(1990) DLT 214.

5. It is claimed that pursuant to the directions of Supreme Court in Sudan Singh v. MCD 1992 (2) SC 458, and Gainda Ram v. MCD WP(C) No. 1699/87, a series of orders were passed in which it was recorded that a Scheme was being finalized in respect of Tehbazari/ Kiosks and Stalls but such facility would not empower the Corporation to permit squatters/ hawkers in those areas. The Supreme Court passed order on 6th November, 2000.

6. The Mandal filed a writ petition before this Court being CW No. 6476/2001, claiming a direction to MCD not to permit squatting/ hawking in the Chandni Chowk area. The MCD later filed an application in Gainda Ram's case (supra) before the Supreme Court seeking clarification to permit squatting and hawking on 6' x 4' site on weekly and festival holidays in the Chandni Chowk area. The Mandal filed an application (IA No. 387/2002), opposing that request. The Delhi Hawker's Association also sought reliefs smilar to what was requested by MCD. These requests were rejected by the Supreme Court, which ruled that Chandni Chowk was to be a non-squatting area. It is averred that in spite of directions of this Court and the observations of the Supreme Court that the Chandni Chowk area is a non-squatting zone, MCD did not take action to prevent squatting and hawking.

7. The petitioners aver that as a retaliatory measure, to the attempts of the Mandal to secure compliance with the Supreme Court directions, MCD threatened to demolish their chabutaras and takhatbandi's in November, 2002. The Mandal filed a writ petition, being WP 7679/02 seeking restraint of the MCD from taking action; in those proceedings, the petitioners had placed reliance on the 1921 bye-laws. Notice was issued on 29-11-02, and the MCD was given restricted liberty to take action against encroachmens. That petition was disposed of on 25th February, 2003 recording the statement of the MCD that action would be taken only in accordance with rules.

8. A contempt petition of the Mandal, was filed before the Supreme Court . It is alleged that in the meanwhile another writ petition namely, CW No. 2986/2002, Afsar Ali v. MCD was filed, seeking a direction that chabutra tehbazari Page 1566 in Chandni Chowk should be demolished as they were encroachments. The petitioners had sought intervention in those proceedings; when the matter was pending, the petition itself was dismissed for non-prosecution. The Petitioner in that matter moved for restoration; the court, be order dated 9-5-03, in the absence of the Mandal, disposed off the matter, directing the MCD to carry out a survey in respect of chabutras, and take action as per norms, within three months. The Mandal sought clarification, through an application which as disposed off by an order dated 28-5-03.

9. The writ petitioners in WP(C) No. 2986/02, namely, Afsar Ali etc. filed a contempt petition being CCP No. 56/2004 In those proceedings certain affidavits were filed by the MCD. The petitioner, apprehending threats to it's members, filed an application for clarification again in WP(C) No. 2986/02. The Court rejected the application on 27th October, 2004, granting liberty to move in independent proceedings. The MCD issued the impugned notice on 14-15/1/2005, and thereafter proceeded to demolish super-structures on third floor and above over the chabutaras in the 11 properties. It filed an Action Taken Report in the contempt proceedings, viz. CP 56/2004

10. It is averred that the actions of the MCD are arbitrary and illegal. The petitioners claim that the chabutaras were built, by the erstwhile Delhi Municipal Committee more than 80 years back and takhatbandi's were built soon thereafter. The allottees/occupiers are tenants of both the chabutaras and takhatbandi's. The action of the MCD in issuing the impugned notice, without specifying or spelling out precisely which properties, and takhatbandi's and chabutaras of which properties are encroachments, either wholly or partially, is illegal and arbitrary. It is also stated that the previous directions of this Court in WP(C) No. 7679/2002 required the MCD to carry out a survey before proceeding to take action. In some petitions by occupiers on upper floors, reliance is placed upon certain modifications to the 1921 bye-laws made in the year 1927. It is also submitted that the affidavit of MCD dated 11th May, 2004 in Contempt Petition No. 56/2004 itself acknowledges that chabutaras were allotted to shopkeepers and that they were constructed upon for which amounts were charged as rent/ fee. A copy of the Resolution dated 25th March, 2003, of the MCD was enclosed with the affidavit. All the petitioners rely on the two reported judgments of the Court, as well as a judgment and decree of the civil judge, in 1986, to state that the takhatbandies are legal structures, and not encroachments; that the MCD itself has treated it as such all these years. Malice and arbitrariness is alleged against MCD.

Pleadings of the MCD

11. The MCD has, in its common return filed in the main proceedings, relied upon various orders of this court, in WP 2986/02, dated 9th May, 2003, 28th May, 2003, and the contempt proceedings in CP 56/2004

12. In those proceedings, the Court granted a last opportunity on 13th January, 2005 to take action. It is also averred that the impugned order was necessitated due to those directions as well as the order of the Supreme Court dated 09th August, 2002 in Patri Vyapar Mandal v. S.P. Aggarwal I.A. Page 1567 No. 352 in WP(C) 1699/1987 and order dated 26th October, 2004 by the Supreme Court in Sudheer Madan v. MCD. It is averred that pursuant to the survey carried out by the MCD consequent upon directions of the Court the impugned notice was issued to allottes/occupiers and action against the encroachments were started on 21st February, 2005, in a phased manner.

13. The MCD has averred that in respect of Chandni Chowk, a Contempt Petition being No. 67/01 is pending in the Supreme Court alleging non-compliance with directions of the Supreme Court. It is averred that in CP 506/2002 filed by the Mandal before the Supreme Court, a request was made that the Court ought to hear that along with CCP 56/2004, pending before this Court. The MCD, has alleged that Chabutras were permitted to be used but shopkeepers could not exhibit goods for sale or enclose it, to prevent air and light, and form a blockage. The MCD has relied upon certain photographs, to say that municipal chabutras have been misused by converting them into multi-storied buildings. It is alleged that in no circumstances can permanent structures or blockages called as thakhatbandies be allowed by the MCD under the 1964 Bye-Laws. The petitioners' assertion of tenancy or other civil rights, in respect of the takhatbandis has been disputed; the MCD also states that the issues raised in the proceedings involve adjudication of disputed questions of fact.

14. The MCD has stated that the proceedings under Article 226 cannot be used to seek a direction contrary to law, and that such would be the consequence if the reliefs claimed are granted. The takhatbandis put up on municipal chabutras are encroachments, which are impermissible in law; if the petitioners' requests were acceded to, it would be contrary to the 1964 bye-laws, and provisions of the Delhi Municipal Corporation Act, 1957 ('the 1957 Act'),. It is stated that no MCD resolution hinders removal of encroachments upon municipal chabutras.

Contentions of petitioner

15. Mr. V.P. Chaudhary learned senior counsel for the petitioner in WP(C) 4133/05, Mr. Sanjay Jain counsel in WP(C) 4686/05 and Ms. Usha Kumar counsel in WP(C) 5571, 5551, 5554, 5565, 5566 and 5569-72 etc. advanced submissions in support of the writ petitions. Learned counsel relied on the decision in Gulzari Lal's case (supra) to say that by virtue of Section 516(2) of the Delhi Municipal Corporation Act (hereafter called 'The Act') the MCD did not possess any power to take action under the 1911 Act, which stood repealed. It is submitted that this decision was followed subsequently by another decision of Single Judge reported as Haveli Ram v. MCD .

16. Learned counsel also placed reliance upon a judgment and decree of the Civil Court in a case of 24 shopkeepers, dated 1st August 1986. That decree had become final and had been accepted by the MCD, it noted existence of puce constructions without objection by the MCD. Mr. Chaudhary submitted that the petitioners are not tehbazari holders but shopkeepers who were allotted municipal chabutras. He strongly contested the stand of the MCD, that the 1964 Bye-Laws applied in this case. He submitted that the relevant provisions are contained in the 1921 Bye-Laws which were necessitated on Page 1568 account of the earlier decision of the erstwhile Delhi Municipal Committee in the year 1911 to align the street in front of Chandni Chowk. Drawing strength from its revisions, learned counsel contended that MCD had been accepting amounts tendered as fees both towards chabutras and thakhatbandies, and issuing receipts.

17. Learned counsel for the petitioners submitted that the Supreme Court had repeatedly directed the clearance or removal of squatters and hawkers in the Chandni Chowk area, which had been declared a non-squatting zone. He submitted that in the proceedings before the Supreme Court, the Mandal and the shopkeepers had actively sought intervention of the Court to ensure compliance with its orders. This triggered off retaliatory action by the MCD as well as the hawkers. They too filed proceedings. The MCD instead of complying with the directions of the Supreme Court and removing the squatters/hawkers, approached the Court for modification of its orders, to enable the hawkers to remain on site in Chandni Chowk. It is submitted that in none of the proceedings, including before this Court in the two reported judgments as well as the subsequent writ proceedings of 2002 did the MCD ever disclose even the existence of the 1964 Bye-Laws, much less rely upon them. Learned counsel submits that those Bye-Laws cannot seek to restrict and take away pre-existing rights. Learned counsel placed reliance upon two reported judgments and the decree of the Sub-Judge of the year 1986. He also submitted that the returns filed in the various proceedings never adverted with he 1964 Bye-Laws. Reliance was placed, for the purpose, upon the judgment of the Supreme Court in Col. A.S. Sangwan v. Union of India .

18. Learned counsel submitted that every action of the executive authority has to be fair, just and reasonable. In the writ petition, viz, W.P.(C) 2986/02 these petitioners (shop-keepers) were not imp leaded in the proceedings. Learned counsel for the petitioner submitted that on the basis of averments in the counter affidavit itself, several admissions ensure in their favor. It is submitted that the basic fact about the grant of permission to use chabutras has not been disputed. Learned counsel further submitted that the affidavit of MCD does not deny the existence of the thakhatbandies, for substantial periods of time and acceptance of the amounts as rent, by MCD in respect of a large number of such allottees.

19. It was submitted on the basis of un-rebutted pleadings in the petition all official acts were deemed to have been done regularly The judgments cited in this regard were Maharaja Pratap Singh Bahadur v. Thakur Manmohan Dey , S.R. Bommai v. Union of India , M.M. Narsinga Rao v. State of Andhra Pradesh AIR 2001 SC 318 etc. Counsel also Page 1569 relied upon Section 114 of the Evidence Act.

20. Mr. Chaudhary also contended that the petitioners were entitled to rely on the judgment and decree of the Civil Judge, by virtue of Section 42 of the Evidence Act; though the decree was not inter parties, it constituted a relevant and material evidence, as to the state of affairs, existing in respect of the Chabutras and the takhatbandis in the Chandni Chowk area. Judgments in support of this proposition were cited.

21. Learned counsel submitted that the facts raised a presumption and confirmed the rights under Section 60 of the Easments Act in favor of the petitioners since such structures or constructions were of permanent character and were old. Reliance was placed upon the decision reported Reliance was placed upon the decision reported as Jagat Singh v. District Board AIR 1940 Lahore 509; Gopalan Nayar v. Devi ; Fazal Haq v. Dataram and the judgment reported as Ram Saroop Gupta v. Bishan Narayan Inter College AIR 1978(2) RCJ 259.

22. Mr. Sanjay Jain, learned counsel appearing for the petitioners in WP 4686/2005, contended that the MCD had initiated action on a previous occasion, under Section 317 of the Act; the proceedings were dropped after the petitioner replied to the show-cause notice. Learned counsel contended that the previous decisions in Gulzarilal's case continue to be binding and good law. The MCD cannot take a contrary stand. It was submitted that the MCD is under an obligation to adopt a fair and non-arbitrary procedure. Reliance was placed upon a decision of the Supreme Court reported as Olga Tellis v. Bombay Municipality AIR 1981 SC 180 where, under similar circumstances, the Court had ruled that prior notice and hearing were necessary. It was further submitted that the impugned action of MCD amounts to going back upon its previous decisions, all of which were duly sanctioned by the 1921 Bye-Laws.

23. Mr. Jain contended that in the absence of any explanation by the MCD about why it did not produce the 1964 Bye laws in any previous proceeding, or indeed, even in Gulzari Lal's case and Haveli Ram's case, an inference that has to be reasonably drawn is that the takhatbandis in question were lawfully put up, with the approval of the MCD itself. Hence, the judgments in those cases are good law. Counsel placed reliance upon the judgment reported as Fuerst Day Lawson Ltd. v. Jindal Exports 2000 (6) SCC 356, to say that in such circumstances, a prior decision of a court binds it in a later case, where the fact situations are identical, or the same.

24. Ms. Usha Kumar, learned counsel for the petitioners in WP(C) 5571, 5551, 5554, 5565, 5566 and 5569-72, and connected cases, adopted the arguments of Shri Chaudhury. She submitted, in addition, that the 1921 bye-laws were modified, in 1927 and 1933, to permit closure of the portions overlying the chabutras, on the first floor. It was submitted that Bye-law 5 of the 1921 Bye-laws were amended to provide for recovery of fees, for the purpose. Hence, Page 1570 the submission made was that shop keepers had a right to construct and put up enclosures on the first, and subsequent floors.

25. Ms. Kumar also relied upon the proposal for levy of enhanced fee, which was accepted by MCD, in 2001. The relevant extract of the proposal, which was later accepted, is as follows:

i. 'a. Built-up Chabutras :- 10 per cent of the notified L and DO rates for commercial/residential properties per annum per floor. However the amount can be paid on monthly basis and in that case, this will be divided by 12.

ii. The following example will illustrate the above :-

iii. The existing rates (which are likely to be revised very soon) notified by the LandDO for Kamla Nagar, Roop Nagar and Lajpat Rai, Market are Rs. 1600/- per sq. mtr. For commercial and Rs. 6300/- per sq. mtr. For residential. In these locations, we will be charging tehbazari fee (misuse charges) @ 1260/- per sq. mtr.(Rs. 136/- per. sq. ft.) per annum (approximately) for commercial and Rs. 630/- per sq. mtr.(Rs. 68/- per sq. ft.) per annum for residential.

iv. The relevant Head of Account for chabutra is 'X-B-b-iv' and the annual income from chabutras is approximately Rs. 10 lacs. This amount will be credited in the same Head of Account i.e. 'X-B-b-iv' and the annual income is likely to increase by bout 100 lacs in the coming years.'

26. It was therefore, submitted that the occupation by the shop keepers was lawful, and the MCD was aware of the takhatbandis, which existed for a long period of time. The direction to clear encroachments, was primarily aimed to implement the orders of the Supreme Court, and ensure that Chandni Chowk is kept as a non-squatting area, and not meant to disturb allottees of chabutras.

Contentions of the MCD

27. Mr. Raj Birbal, learned senior counsel for the MCD states that the writ petition is based upon several disputed allegations of fact and is not maintainable. These disputes relate to existence of individual rights, its duration, whether it acceptance or otherwise of amounts led to creation of rights etc. Counsel relies on DLF Housing Construction (P) Ltd v. Union of India ; Shri Sohan Lal v. Union of India ; Bokaro and Ramgur Ltd v. State of Bihar ; National Textile Corporation v. Haribux Swalram ; Manager, St. Thomas UP School v. Commissioner and Secretary ; Hamidullah v. Sheikh Abdullah ; and State of Rajasthan v. Bhawani Singh 1993 Supp (1) SCC 306.

28. The reliance by the Petitioners on the Bye Laws of Delhi Municipal Page 1571 Committee of 1921 is contested. In any event, the said Bye-Laws are against the case of the Petitioners; they admittedly do not fulfill the requirements of the Bye-Laws 1,2(a), (b) 3 to 6, 9 etc. Counsel submitted that the said Bye-Laws also do not fulfilll the test laid down by the Constitution Bench of Supreme Court in the case of Sukh Dev Singh v. Bharat Ram .

29. It is submitted that Section 47 of the Punjab Municipal Act, 1911 ('the 1911 Act') has been considered and interpreted by the Supreme Court in the case of Dr. H.S. Rikhi v. NDMC , which ruled as to how the actions under the 1991 Act could bind the authorities, and the correct procedure in that regard. The action of the Petitioner is also violative of Section 117 of the 1911 Act. It is averred that the claim of the Petitioner for right of lease/tenancy is clearly violative of Section 200 (b), (c), (d), (e), Section 201, 202, 203 etc. of the MCD Act, 1957 (Section 200 of MCD Act corresponds to Section 47 of the Punjab Municipal Act).

30. Learned counsel submitted that MCD has sufficient powers in Sections 317 and 322 of the Act to take coercive action to remove the takhatbandis, which are prohibited constructions. He submitted that the impugned notice constituted sufficient compliance with the requirement of issuing notice to the shop keepers. It was also submitted that MCD has a choice to carry out the exercise, either under Section 317, by giving notice, opportunity of hearing before taking any action, or take action as per Section 322. The later course was adopted in exercise of discretion, bona fide, since issuing notice to individuals and granting hearing would have resulted in inordinate delay. The MCD states that the Petitioner' disputes are in the realm of alleged contract; they have failed to show any legal right. The case of the Petitioner for writ is against the statutory duties assigned on MCD by MCD Act specially Section 42 (m), (n), (o), (p), (v), (x) and Section 397(i)(a)(x). It is submitted no writ is issued against a Statutory Body doing its statutory duty. Reliance is placed upon the decisions reported as Hope Textiles v. Union of India (Supp) (3) SCC 199; Union of India v. Kirloskar Pneumatic Co. Ltd. ; State of UP v. Harish Chandra (9 SCC 309; Life Insurance Corporation v. Asha Ramachandra (2) SCC 718; Mani Subrat Jain v. State of Haryana (1) SCC 486.

31. Learned counsel for MCD relies, on the Bye-Laws 1964. It is contended that the Petitioners do not fulfill statutory requirements, including Bye-Laws 3,5, and 6. The power, and jurisdiction of Commissioner, MCD are protected by Bye-Laws 11 and 12. The bye-Laws 13 provide for penalty. The Bye-Laws are mandatory and totally against the Petitioner. Counsel further submitted that the decisions in Gulzari Lal and Haveli Ram are no longer good law; they are judgment per incuriam since they were rendered in ignorance of, and overlooking the 1964 Bye-Laws.

Page 1572

32. It is submitted that pleadings in the Petitions are vague. The Petitioners are claiming an important alleged right on the public land. Section 317(2) of MCD Act permits the Commissioner to remove or take such action as the Commissioner may direct 'with notice' and Section 322 to remove the encroachment 'without notice'. Against action under Section 317(2), the remedy for a affected party is filing an Appeal under the MCD Act. It is submitted, it is well settled, if there is a provision of statutory appeal, the High Court generally does not exercise writ jurisdiction, specifically if disputed allegations are there.

33. The order dated 9th May, 2003 of CW No. 2986/2002 of the court, and order dated 13th January, 2005 in CCP No. 56/2004 in CWP No. 2986/2002 direct MCD to remove encroachment on the public area. Similarly, the judgment/order of the Supeme Court placed on record also directs MCD to remove encroachments in Chandni Chowk area. The impugned order is based on those direcdtions. Hence, if the writs sought is granted, it would amount to going behind the directions of co-ordinate benches, which have also become final.

34. The learned counsel disputed the documents and receipts filed by the Mandal. The counsel submitted that correct sample receipts are annexed to the Counter Affidavit of MCD; their analysis has been shown in a chart which, discloses that the amount paid is Chabutra Shulk and not for alleged Chabutra-bandi. The Petitioners have no right to construct on the Chabutras at the ground floor and/or above that. Assuming that the petitioners paid Chabutra Shulk for some time, that does not give them legal righ to construction on the Chabutras in the face of the statutory rules.

35. The learned counsel stated that the allegations about discrimination, leveled by the petitioners are baseless and unfounded. The alleged documents along with the Affidavits filed, in terms of order dated 9th March, 2005 of this Court, show the hollowness of the case of the Petitioner. It is submitted by no stretch of imagination, any legal or contractual right is created in favor of the Petitioners, such claims are contrary to the statutory provisions of the 1911 Act and 1957 Act and also Bye-Law of 1921 (and) Bye-Laws of 1964.

36. Ms. Gauri Karuna Das, learned counsel for the intervenors, who filed an application (CM 4114/05) sought leave to oppose the petitions, adopted the arguments of Mr. Birbal. She placed strong reliance on the order of court in CWP 2986/2002 issued on 9th May, 2003, and submitted that the action of MCD had to be in strict conformity with those directions. She also submitted that putting up of takhatbandis amounts to encroachments, since they block the passage on the pavement, next to the shops, at Channi Chowk. It seriously affects the ingress and egress and rights of pedestrians. She states that the 2001 resolution (upon which Ms. Kumar had placed reliance) indicates that the chabutras and takhatbandis are considered as tehbazaris.

37. Learned counsel further submitted that the petitioners couldn't complain of denial of natural justice, since they are responsible for violation of law. Page 1573 She relied on the decision of this court in Rajinder Kakkar v. Delhi Development Authority 1994 (54) DLT 484 to say that the courts have to take a conscious decision, wherever executive action to remove encroachments is questioned, and satisfy itself that the litigant has some semblance of legal authority or claim to continue in possession, before interdicting the proposed action. Here, it is submitted, such evidence is singularly lacking; the petitioners have no rights over the takhatbandis which have been enclosed over the municipal lands, i.e. the chabutras.

ORDERS AND LEGAL PROVISIONS

Orders of Supreme Court

38. The relevant orders of the Supreme Court are reproduced below:

Supreme Court Order dated 02nd December, 2000

I.A. No. 355 in WP(C) NO. 1699/1987

'The applicants are eligible squatters. They have filed this application praying that they may not be obstructed from carrying on their business at Lal Mandir, New Lajpat Rai Market, Delhi till final allotment of alternative site is made. Learned counsel for the MCD submits that this is a non-squatting area. When this is a non-squatting area, neither temporary arrangement or permanent arrangement can be made. The applicants are therefore given two weeks time to vacate from the place where they are resently squatting and in the meantime if it is not possible to make any final allotment of alternative site according to that, the MCD will make a temporary provision in a non-prohibited squatting area till regular final allotment is made. As and when the said temporary space, in the non-prohibited squatting area is allotted, the applicants will be obliged to move to that place without any contention that the same is not suitable or is not a lucrative area for their business.

The I.A. Is disposed of.'

Supreme Court Order

Dated 09th August, 2002

Cont. Pet(c) 67/2001 in WP(C) No. 1699/1987

'I.A. No.../2002 (filed by Delhi Hawkers Association) is taken on Board.

This order shall dispose of the following applications :

I.A. No.../2001 (for clarification/modification of Ct's order dated 1st December, 2000 filed by Municipal Corporation of Delhi) for the following relief :

v. 'Corporation be allowed to permit to allow squatting on 6' x 4' open to sky site on seekly and festival holidays in the area of Chandni Chowk.'

I.A. No. 387/2002 (filed by Chandni Chowk Sarve Vyapar Mandal) which in substance is an application opposting the prayer made by the Municipal Corporation of Delhi.

Page 1574

I.A. No.../2002 (filed by Delhi Hawkers Association) wherein a plea is raised that Chandni Chowk be permitted for hawking/squatting at least on festival and weekly holidays.

We have heard all the learned counsel.

In the judgment dated 21st May, 1993 reported as JT 1993 (3) SC 397 directions No. 1 to 4 issued earlier by this Court are quoted. It is not disputed that the guidelines No. 1 to 4 referred to therein, are applicable for both MCD and NDMC areas. Subsequently the Municipal Corporation of Delhi has declared Chandni Chowk as non-squatting zone (Pg. 38 of I.A. No. 387/2002). Vide orders dated 1st December, 2000, 2nd December, 2000 and 6th November, 2000 passed by this Court, it was clarified that non-squatting areas cannot be utilized for the purpose of squatting and hawking whether temporary or permanent. Delhi High Court has by order dated 9th November, 2001 passed in CWP No. 6476/2001 (Pg. 16 of I.A. No. 387/2002) directed that squatting/hawking in Chandni Chowk cannot be permitted. Mr. M.M. Kshyap, learned counsel for Delhi Hawkers Association submitted that hawking/squatting on festival days and holidays should be permitted to take care of the interest of the applicants. He also submitted that traders have encroached on market and street areas and the clarification application filed by the Municipal Corporation of Delhi and the application filed by Chandni Chowk Serv Vyapar Mandal is an attempt at hiding the encroachments so that no action is taken thereagainst. Needless to say, if there were any encroachments the Municipal Corporation of Delhi is certainly at liberty to remove such encroachments rather it should do so.

In view of the several orders passed earlier by this Court and the order of the High Court which has attained finality, we are not inclined to modify the earlier order of this Court and to permit squatting and hawking in the Chandni Chowk area more so when it would be clearly to the detriment of the persons having their residences and shops and business there. The several photographs filed with I.A. No. 387/2002 go to show that hawkers and squatters cause serious congestion and if that is permitted it will be difficult for the local residents, traders and customers approaching the shops, even to move.

For the foregoing reasons,t he I.A.s No. 387/2002 is allowed and I.A. No.../2002 (filed by the Municipal Corporation of Delhi) and I.A. No.../2002 (filed by Delhi Hawkers Association) are dismissed.'

Orders of this Court

39. Relevant orders of this court, relied upon by the parties, are extracted below:

Order dated 25th February, 2003 in

CW No. 7679/2002

'Learned counsel for the respondent states on instructions that the respondent will take action against the petitioner only in accordance with the rules and law. The statement is taken on record.

In view thereof, learned counsel for the petitioner does not press the writ Page 1575 petition and the petition stands disposed of.

CM 13109/2002 and 13224/2002

No further orders are called for in view of the writ petition being disposed off. Application stands disposed of.

CM No. 64/2003

This is an application filed by the hawkers for impleadment and for directions to the respondents to take action in accordance with the judgment of the Supreme Court. Needless to say that no further orders are called for once directions have been passed by the Supreme Court. Further the petitioner has withdrawn the present writ petition on the statement of the learned counsel for the respondent.

In view thereof, the prayer of the applicant either to be imp leaded or for seeking directions does not survive for consideration and is disposed off'.

Order Dated 09th May, 2003 in CM No. 5273/2003 in CW 2986/2002

'Notice to the respondent through counsel which is accepted by Mr.Vibhu Shankar. Learned counsel for the petitioner states that they should not be penalised for non appearance of their counsel. The matter was dismissed for non prosecution on account of the fact that three counsel had been changed and no one was willing to address submissions today. In view of the aforesaid, the application is allowed and the writ petition is restored to its original terms and taken on Board.

Application stands disposed of.

CW No. 2986/2002

The petitioners have filed the writ petition seeking direction against the respondent Corporation to remove the covered portion of the chabutra and to demolish illegal encroachments including portion of the shop keepers and bring it to the actual position. The petitioners claim to be the residents of Chandni Chowka nd contend that the ingress and egress and walking through the area has become extremely difficulty in view of the violation by the tehbazari holders and shop keepers.

In view of the aforesaid, the respondent Corporation is directed to carry out a survey to verify the violation of the tehbazari norms as also encroachment on the public area and ensure that the same are cleared and the norms are adhered to. Needful be one within a period of three months from today.

Writ petition stands disposed of.

Compliance report be filed with advance copy to learned counsel for the petitioner within two weeks of the expiry of the aforesaid period.'

Order dated 28th May, 2003

CM No. 6389/2003 in CW2986/2002

'This is an application filed by the interveners for recall of the order dated 9th May, 2003.

The interveners had earlier filed an application bearing No. 10990/2002. The writ petition was dismissed for non-prosecution dated 21st April, 2003. Page 1576 In view of the dismissal of the writ petition, it was directed that CM No. 10990/2002 would also not survive for consideration and the application was disposed of. Subsequently CM No. 5273/2002 was moved by the petitioner seeking restoration of the writ petition. The said application was allowed after notice to learned counsel for the respondent on the same day itself since the counsel was present. The counsel for interveners was not present and thus no notice was issued.

The writ petition was also disposed of on the same day directing the respondent Corporation to carry out a survey to verify violation of the tehbazari norms as also encroachment on the public area and to ensure that the same must be cleared and norms are adhered to. Learned counsel for the interveners contends that the interveners had a right to be heard in the matter since they are occupants of Chabutras in the area in question and they are directly affected. No doubt that such interveners were not present on 9th May, 2003 and they cannot be faulted on that account. However, in view of the order dated 9th May, 2003 having been passed a query was put to learned counsel for the interveners as to in what manner the order passed on 9th May, 2003 affected their rights?

In answer to the query learned counsel for the interveners stated that interveners have apprehension that the order may be misinterpreted in view of the earlier disputes which have arisen between different categories of traders in the same area.

Learned counsel also states that the present petitioners are really proxy for the tehbazari holders in view of the fact that petitioner No. 9 is the General Secretary of their association. In my considered view, the apprehension of the interveners is mislaced. The first para of the order in the writ petition only records the claim of the petitioner in the writ petition. The direction is only contained in second paragraph. The direction is clear that respondent Corporation should carry out a survey to verify the violation of tehbazari norms as also encroachment on the public area and ensure that the same are cleared and the norms are adhered to. The interveners can hardly have any objection to this direction. In fact if the contention of the interveners is correct that it is a proxy writ petition by the tehbazari holders, even then such tehbazari holders are covered by the direction to adhere to the legal principles and norms.

In view of the aforesaid, on the merits of the controversy I see no reason why the direction passed on 9th May, 2003 should be recalled specially in ivew what has been clarified today.

Application stands disposed of.

dusty to learned counsel for the parties.'

Relevant provisions of the Delhi Municipal Corporation Act, 1957

'Section 298 Vesting of public streets in the corporation -

(i) All street within Delhi which are or at any time become public streets, and the pavements, stones and other materials thereof shall vest in the Corporation:

Provided that no public street which immediately before the commencement of this Act vested in the Union shall, unless the Page 1577 Central Government with the consent of the Corporation so directs, vest in the Corporation by virtue of this sub-section.

All public streets vesting in the Corporation shall be under the control of the Commissioner and shall be maintained, controlled and regulated by him in accordance with the bye-laws made in this behalf.

Notwithstanding anything contained in sub-Sections 1 and 2, the Central Government may, by notification, direct that all or any of the functions of the Corporation or the Commissioner, in respect of public streets under this Act shall be performed by such authority as may be specified therein.

Section 317. Prohibition of projections upon streets, etc.--(1) Except as provided in section 318, no person shall erect, set up, add to, or place against on in front of any premises any structure or fixture which will-overhang, jut or project into, or in any way encroach upon, and obstruct in any way the safe or convenient passage of the public along, any street, or

(b) jut or project into or encroach upon any drain or open channel in any street so as in any way to interfere with the use or proper working of such drain or channel or to impede the inspection or cleansing thereof.

(2) The Commissioner may by notice require the owner or occupier of any premises to remove, or to take such other action as he may direct in relation to, any structure or fixture which has been erected, set up, added to or placed against, or in front of, the said premises in contravention of this section.

(3) If the occupier of the said premises removes or alters any structure or fixture in accordance with such notice, he shall be entitled, unless the structure or fixture was erected, set up or placed by himself, to credit into account with the owner of the premises for all reasonable expenses incurred by him in complying with the notice.

Section 318. Projections over streets may be permitted in certain cases.--(1) The Commissioner may give a written permission, on such terms and on payment of such fee as he in each case thinks fit, to the owner or occupier of the building abutting on any street-

ii. to erect an arcade over such street or any portion thereof; or

iii. to put up a verandah, balcony, arch, connecting passage, sun-shade, weather frame, canopy, awning or other such structure or thing projecting from any store y over or across any street or portion thereof:

Provided that no permission shall be given by the Commissioner for the erection of an arcade in any public street in which construction of an arcade has not been generally sanctioned by the Corporation.

(2) The Commissioner may at any time by notice require the owner or occupier of any building to remove a verandah, balcony, sun-shade, weather frame or the like put up in accordance with the provisions of any law and such owner or occupier shall be bound to take action accordingly but shall be entitled to compensation for the loss caused to him by such removal and the cost incurred thereon.

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Section 320. Prohibition of structures or fixtures which cause obstruction in streets---(1) No person shall, except with the permission of the Commissioner granted in this behalf, erect or set up any wall, fence, rail, post, step. Booth or other structure whether fixed or movable or whether of a permanent or temporary nature, or any fixture in or upon any street or upon or over any open channel, drain, well or tank in any street so as to form an obstruction to, or an encroachment upon, or a projection over, or to occupy any portion of such street, channel, drain, well or tank.

(2) Nothing in this section shall apply to any erection or thing to which clause ª of sub-section (1) of section 325 applies.

Section 321. Prohibition of deposit, etc of things in streets- (1) No person shall, except with the permission of the Commissioner and on payment of such fee as he in case thinks fit, place or deposit upon any street, or upon any open channel drain or well in any street or upon any public place any stall, chair, bench, box, ladder, bale or other thing whatsoever so as to form an obstruction thereto or encroachment thereon.

(2) Nothing in sub-section (1) applies to building materials.

322. Power to remove anything deposited or exposed for sale in contravention of this Act.--The Commissioner may, without notice, cause to be removed--

(a) any stall, chair, bench, box, ladder, bale or other thing whatsoever, placed, deposited, projected, attached or suspended in, upon, from or to any place in contravention of this Act;

(b) any article whatsoever hawked or exposed for sale on any public street or in other public place in contravention of this Act and any vehicle, package, box or any other thing in or on which such article is placed.'

1921 Bye-laws

Relevant extracts of the 1921 Byelaws are as follows :

'Passed at an ordinary Meeting held on 8th March 1921.

i. No Chabutras or any portion of them build by the Municipal committee of Delhi in Bazars and on public streets shall be occupied by any person or persons unless permission therefore has been obtained from the committee in accordance with these direction

ii. 4. The permission when granted shall be regarded only as temporary under section 170, of the Punjab Municipal Act, 1911 and shall not entitle the holder there of to use the Chabutra otherwise than to exhibit goods for sale or to receive customers during business hours. In no case and at no time shall the holder of the permission close up the Chabutra or any part of it in any direction by any means whatsoever so as to form a takhatbandi, nor shall be so block it up either with goods boxes, almirahs, machinery or otherwise as to prevent free drought of air to the adjoining properties on Chabutras on either side.

Note : Such takhatbandis will however, be allowed in the Chandni Chowk only. (Resolution No. 7 of the Special Meeting held on the 2nd May, 1922) at a rental equal to that paid for the Chabutra on which they have been erected and subject to the conditions of advance payment laid down in Page 1579 rule 2(c) of the directions for the occupation of Municipal Chabutras.

All Takhatbandis will be built subject to Municipal Engineer's approval of the design (Resolution No. 2 of Executive and finance Sub-committee dated the 11th July 1922, confirmed at an Ordinary Meeting held on 18th July 1922).

iii. No permission to occupy the Chabutras shall be granted except by writing signed by the Secretary and in the form attached to these directions.

iv. The grant of permission to occupy the Chabutra shall render the person on whose application permission is granted or the person in actual occupation of the Chabutra liable to pay to the Committee in advance the fees stated in his permission and to continue doing so until the temporary permission is determined.'

1964 Bye-laws

'Delhi Municipal Corporation Street (Placing of Takhats) Bye-Laws 1964

1. Definitions . In these bye-laws unless the context otherwise requires :-

(f) 'Shop' means a building or part of a building where articles of food or of personal, domestic and household use and consumption are sold and goods of any kind are retailed, or in which any other trade or business is carried on, but does not include a staircase or any part thereof or any open site, whether against a wall or not, even if such staircase or part thereof the open site is being used for any of the said purposes; and

(g) 'Takhat' means a portable projection made of wood fixed by hinges to the plinth level of a shop and supported either by ropes; chains or bars attached to the door frame or the walls of the shop or props resting in the street or by both.

5. Prohibition to keep or place a takhat.(1) No person shall project or cause to be projected takhat or a street or in a public place except with the permission of the Commissioner granted in accordance with these bye-laws ;

(2) No permission for a takhat shall be given :-

(i) in street which may from time to time be declared as prohibited by the Corporation; and

(ii) within 4 metres of a crossing, turning or a junction of street open to vehicular traffic provided that a takhat may be permitted in accordance with bye-law 4 if foot-paths of not less than 2.50 metres exist on either side of the street.

(3) No permission for a takhat shall be given except in front of a shop; and

(4) No takhat shall be permitted in front of shops :-

(i) Which abut on a municipal Chabutra; or

(ii) which abut on toredar Chabutras.

6. Regulation of the size of the takhat. The maximum permissible width of a takhat shall be 0.6 metre measured from the facade of the shop to which it is fixed, and shall be regulated as under with reference to the width of the street on which the shopo auts.

Page 1580

Provided that the streets where there are deep surface drains, a takhat not projecting beyond the outer-edge of such drains will be permissible irrespective of the width of the street or of the foot-path.

Width of Street Width of Takhat

(i) Road without foot-paths (i) More than 7.6 metres 0.6 metre

(ii) Between 5.5 metres and 7.6 metres 0.4 metre

(iii) Between 2.5 metres 0.3 metre and 5.5 metres.

(2) Roads having footpaths Subject to the maximum permissible which the width of the takhat shall be regulated in such a way as to leave clear 1.5 metres width of footpaths for padestrian traffic, provided that when the width of a footpath is less than 1.5 metres, no permission for a takhat shall be given.

5. Grant of permission. Permission for a takhat may be granted, on receipt of an application, in such form as appended to these bye-laws, which will be available from the office of the Commissioner free of charge.

6. Conditions of permission. (1) The takhat shall not extend beyond the limit of the shop on either side.

(2) The takhat shall project at a height not less than 0.6 metre from the level of the street, provided that where the height of the plinth of the shop be less than 0.6 metre no permission for a takhat shall be given.

(3) The space underneath the takhat shall neither be closed in like a cup-board nor be used for stocking goods of any description.

(4) The upper surface of the takhat shall not be closed in the form of takhat-bandi or otherwise, nor any structure of permanent nature shall be placed thereon.

(5) No bhatties, angithies, almirahs or similar other structures of a permanent or semi-permanent nature shall be fixed to or placed over or within the takhat; and

(6) The takhat shall be used only for the trade or business carried on the shop, and no portion thereof shall be allowed to be hired out or sub-let or otherwise occupied by a person other than the occupier of the shop.'

The facts emerging from pleadings and documents, and the points for consideration

2. From the above narrative and pleadings, the following emerge :-

i. The petitioners are shop keepers in Chandni Chowk. Some of them or their predecessors in interest were allotted chabutras, constructed by the erstwhile Delhi Municipal Committee. Amounts, towards such chabutras have been deposited.

ii. By virtue of orders dated 06th November, 2000, 01st December, 2000 and 02nd December, 2000, by the Supreme Court in WP(C) 1699/87, the MCD had declared Chandni Chowk as a non squatting zone. The Supreme Court had clarified that such non squatting zones cannot be utilized for the purpose of squatting and hawking whether temporary or permanent.

Page 1581

iii. This Court by its order dated 09th November, 2001 in WP(C) 6476/01 (filed by the Mandal) directed that squatting/hawking in Chandni Chowk cannot be permitted.

iv. The Supreme Court dismissed an application dated 09th August, 2002 filed by the MCD seeking modification of its earlier orders to permit hawking/squatting in Chandni Chowk; similarly another application by the Delhi Hawkers Association was also dismissed. while dismissing these applications, the Supreme Court had observed that if there were any encroachments MCD was at liberty to remove them.

v. WP(C) 2986/02, namely, Afsar Ali Khan v. MCD was filed before this Court. In that the claim was that removal of chabutra tehbazari in the Chandni Chowk area. Rule was issued on 24th September, 2002. The Mandal filed an application for intervention being CM No. 10990/02. Notice was issued on the application.

vi. The Mandal filed a writ petition, namely, WP(C) 7679/02 seeking direction to the MCD not to demolish the takhatbandies and chabutras in the Chandni Chowk area. Notice was issued on this petition on 29th November 2002 when the Court restricted the act on of the respondent to remove all encroachment on public land and unauthorized construction.

vii. The Mandal's petition, namely, 7679/02 was disposed off by order dated 25th February, 2003 upon the statement of the MCD that it would take action only in accordance with rules and law. The application filed by the Hawkers Association for impleading too was disposed off.

viii. The writ petition of Afsar Ali Khan, namely, WP(C) 2986/02 seeking action for demolition of chabutras, was dismissed for non prosecution on 21st April, 2003. Consequently, the petitioner's application for intervention was also rejected.

ix. On 09th May, 2003, the Court allowed an application in WP(C) 2986/02 and restored the petition. The MCD was directed to carry out a survey on the allegation by the petitioner in those proceedings that norms were being violated, to verify violation of tehazari norms as also encroachment on the public area and ensure that the same were cleared, and norms adhered to. The Court granted three months time for the purpose.

x. The petitioner Mandal moved an application seeking recall of the order dated 09th May, 2003. This was on the footing that its earlier intervention application No. 10990/02 stood disposed off when the petition was dismissed for non persecution on 21st April, 2003 and that when the petition was restored to file and directions were issued, the applicant Mandal had not been heard. TheCourt by its order dated 28th May, 2003 disposed off CM No. 6389/03, filed by the Mandal stating that 'the first para of the order in the writ petition only records the claim of the petitioner in the writ petition. The direction is clear that the respondent Corporation should carry out a survey to verify the violation of tehbazari norms as also encroachment on the public area and ensure that the same are cleared and that the norms are adhered to. The interveners can hardly have any objection to this direction. In fact if the contention Page 1582 of the interveners is correct that it is a proxy writ petition by he tehbazari holders, even then such tehbazari holders are covered by the direction to adhere to the legal principles and norms.

In view of the aforesaid, on the merits and the controversy, I see no reason by the direction passed on 09th May, 2003 should be recalled specially in view what has been clarified today.' k. The petitioner in Afsar Ali Khan filed a contempt petition being CCP No. 56/04, complaining non compliance with directions of Court in WP(C) 2986/02. In these proceedings, an affidavit was filed on 11th May, 2004 by the MCD stating that a number of demolitions had taken place. It was also averred that chabutras were allotted to shop keepers open to sky and that MCD was charging chabutra fee at Rs. 8 Sq. foot on account of encroachment by way of covering all the chabutras; that a resolution being No. 320 dated 25th August, 2003 had been passed by the MCD to enhance the fee to Rs. 30 per Sq. foot. A copy of that resolution is part of the record, along with the affidavit. The resolution accepted the recommendations of the standing committee No. 206 and the report of the Committee regarding tehbazari in Chandni Chowk area. The resolution also recorded that there were 704 chabutras in Chandni Chowk area on Jain Lal Mandir to Fatehpur Sikri. It further stated 'no permanent structure made-up brick, cement or any other material over the chabutra will be allowed. Structure on the ground level only made-up of temporary material shall only be allowed.'

xii. The recommendation to increase the chabutra fee to Rs. 30 per Sq. foot was accepted.

xiii. The petitioner Mandal had filed another application for modification in Afsar Ali Khan's case (WP(C) 2986/02). That application was disposed off on 27th October, 2004. The Court declined clarification and stated that in case the applicant Mandal had any independent cause of action, it was open to avail of the remedy in accordance with law.

xiv. The Petitioner-Mandal moved CM No. 459/05 in the pending contempt case No. 56/04 seeking impleadment on account of threatened action by the MCD to demolish takhatbandies and chabutras. This was dismissed when the Court was of the view that the petitioner was not necessary or proper party in the contempt proceedings. By the same order the Court recorded the view that despite orders dated 09th May, 2003, the directions of the Court were being disregarded and that the action taken report, in the affidavitated 11th May, 2004 did not show compliance. The respondent was, therefore, directed to take action further to the order dated 09th May, 2003, within a period of six weeks.

xv. On 14-15 of January 2005, the impugned notice/orders were issued.

40. The following points arise for consideration in these proceedings :-

i. Whether the present proceedings are not maintainable in view of the previous directions of the Court;

ii. Whether the present proceedings raise disputed questions of fact and hence the issues ought to be agitated in a proper forum competent to adjudicate civil disputes in an efficacious manner;

Page 1583

iii. Applicability of the 1921 and 1964 Bye Laws;

iv. Legality of the impugned notice.

Point No. 1.

44. Learned counsel for the respondents had objected to the maintainability of these petitions under Article 226 and claimed that if the issues raised are gone into on merits, they would virtually amount to going behind or re-writing the orders of this Court in previous proceedings particularly WP(C) 2986/02 and 7679/02 in spite of their having become final. It was also contended that apart from that, any view expressed in favor of the petitioners herein would be in conflict with the final and binding directions in these proceedings as well as in contempt proceedings being CCP 56/04.

41. The petitioners, on the other hand, had contended that their claim in WP(C) 7679/02 was premised upon precisely the issues which are sought to be raised in this case namely, their entitlement to occupy the chabutras and enclosed them by the takha bandies. It was pointed out that in those proceedings, the petitioners had relied upon the 1921 Bye Laws as well as pleaded their long and continued user of the takhatbandies on the municipal chabutras, in the Chandni Chowk area. Those proceedings were disposed off on an assurance by the MCD that no action would be taken save in accordance with law and rules. Hence there was no agitation of merits upon the claim of the petitioners. It was contended that in the other proceedings, initiated at the behet of hawkers, namely, Afsar Ali Khan's case, WP(C) 2986/02 the petition was dismissed for non prosecution but while restoring the proceedings, the Court passed an order to carry out a survey and remove encroachments. It is claimed that this direction cannot be construed as a mandate to violate rules and law which the MCD had undertaken to abide by, while having WP(C) 7679/02 disposed off. The subsequent orders were an affirmation of the directions dated 09th May, 2003. It is further submitted that by order dated 27th October, 2004, the Court had permitted the initiation of proceedings in the event of a fresh cause of action. These orders cannot, therefore, come in the way of an adjudication on the merits as whether the directions of the Court were complied with, in accordance with law.

42. The record, particularly, the various orders of the Court establish that the directions were premised upon statement of parties, either the petitioner in WP(C) 7679/02 or the petitioners in WP(C) 2986/02. Both these parties had conflicting interests in the sense that the petitioners in WP(C) 7679/02 wanted no action to be taken on the takhatbandies put up on the chabutras, except in accordance with law, whereas the petitioners in WP(C) 2986/02 alleged violation of tehbazari norms vis-a-vis chabtras. In any event, a reading of the final orders in both sets of petitions does not lead to an inference that the Court expressed a final view on the merits of the case. The important order dat d 09th May, 2003 (which was finally maintained even upon the disposal of the application for clarification on 28th May, 2003) is to the effect that MCD had to carry out a survey within three months and take action as per the norms, to remove encroachments.

Page 1584

43. The intention of the Court in the two orders, (one dated 25th May, 2003 regarding the MCD's assurance that action would be taken only according to the rules and the other dated 09th May, 2003 and 28th May, 2003 directing action as per norms) was understood also to imply the possibility of a future grievance, of the affected parties. That is why the order dated 27th October, 2004, granted liberty to the petitioners herein to agitate their grievance through appropriate independent proceedings when the occasion arose.

44. The order dated 13th January, 2005 was passed in contempt proceedings. It is settled law that in contempt proceedings, the Court does not interpret but gives effect to orders. It was for this reason that the Mandal's application for intervention was declined and the Court expressed its displeasure on the tardy progress of implementation while granting six weeks time for the purpose.

45. It is apparent from the above is that none of the proceedings had determined the status of the takhatbandies and as to whether the claims of the mandal, its members and/or other traders as being lawfully entitled to enclose the municipals chabutras.

The Court directed the MCD, which is primarily responsible in that regard, to take necessary action in accordance with law. The modalities for the action too were indicated in the order of the Court dated 09th May, 2003 in WP(C) 2986/02; MCD was to carry out a survey within three months and then proceed with the matter. The correctness of the action taken by MCD pursuant to orders, however, and the manner in which such action was to be taken, did not and could not have formed the subject matter of those roceedings. This is underlined by the order dated 27th October, 2004 which preserved the rights of the petitioners and others falling in the class, to initiate action on account of any grievance or independent cause of action.

46. I am of the considered view, therefore, that the previous orders dated 21st February, 2003, 09th May, 2003 and 28th May, 2003 directed the MCD to follow the norms and rules, determine what were encroachments after carrying out a survey and then take appropriate action. They cannot however be construed as directions or binding judgments which preclude a challenge to the legality of action taken pursuantly by the MCD, or foreclose examination in subsequent proceedings, about the fairness of procedure.

47. The MCD has raised two preliminary objections as to the maintainability of these proceedings. It is first contended that the disputes raised here relate to civil claims and that unless a right or entitlement in law is made out, the Court ought not to exercise jurisdiction under Article 226 of the Constitution. It is also contended that if claims of the petitioners are gone into and relief is given to them, it would tantamount to issuing a direction or a writ of mandamus to violate the law since revisions of both the 1921 and 1964 Bye Laws as well as provisions of the Act, prohibit the MCD from authorizing use of public streets or any part thereof except in the manner provided. The second submission on maintainability is that the petitioners' grievances involve adjudication of disputed questions of fact such as existence or otherwise of Page 1585 tenancy/other rights, the duration of such rights, and whether the individual petitioners can claim such rights at all. All these would require evidence to be recorded and examined by the Court and orders passed in respect of in each individual shop keeper/allottee. Hence the petitions under Article 226 ought not to be proceeded with/entertained.

48. The petitioners in answer submit that the documents and materials on record itself would be sufficient for the Court under Article 226 of the Constitution to adjudicate upon the disputes. All the petitioners have been in ccupation of the municipal chabutras; they have adduced evidence by way of copies of receipts issued by the MCD, both in respect of the chabutras as well as the takhatbandies. A consideration of these would show that they have been in long uninterrupted and continuous occupation for several decades. Hence the directions sought for should be granted.

49. The petitioners also submit that apart from claiming right to continue, these proceedings are for enforcement of principles of non arbitraniess and natural justice, which are contained in Article 14. It is submitted that the impugned order is a negation of the basic rule of fairness which public institutions like the MCD are under an obligation to conform to. Therefore these proceedings under Article 226 are appropriate and maintainable.

50. It is well settled that disputed questions of fact, particularly those dealing with civil rights should not be adjudicated upon in proceedings under Article 226 of the Constitution of India. Thus, disputes as to title to properties, money and commercial claims, right to easement and other civil private law rights, cannot be agitated. The essential purpose of Article 226 even in its expanded sense, is the provision of public law remedies. Thus even private law disputes of public institutions cannot be agitated. This stems from a sound principle of public policy that the Court under Article 226 is not equipped to ordinarily receive evidence and adjudicate upon issues of fact. To that extent there is merit in the contention on behalf of the respondents. I am therefore of the opinion that these proceedings cannot be converted into civil proceedings to adjudicate upon the nature of civil rights of the individual petitioners and determine the extent of their entitlements to the takhatbandies as is being claimed. For the some reasons, there proceedings cannot be converted into a Civil Action for easmentary rights.

51. The next question is whether the grant of relief in these proceedings would amount to violating any mandate of law. In this regard, much emphasis has been placed upon the provisions of 1921 and 1964 Bye Laws as well as Sections 318 and 320 of the Delhi Municipal Corporation Act. It is stated that unless express sanction is permitted, the takhatbandies were always forbidden and the MCD had never permitted the putting up of such takhatbandies. To the extent, the petitioners claim to have put them un and are seeking its protection, they are seeking a direction to violate express provisions of law.

52. As discussed in the first part of the preliminary submission, the Court under Article 226 of the Constitution is not properly equipped to decide whether and to what extent the petitioners have civil rights. Nevertheless, the materials on record warrant certain inferences. These are, that the MCD Page 1586 itself has been accepting amounts as fees/license/rent by whatever name called over a considerable period of time, from several shopkeepers, including some petitioners. The records of the MCD produced during the course of hearing show that details of such amounts have been kept; the charts on the records also show arrears payable by certain parties. Furthermore, the MCD apparently carried out a survey about the total number of chabutras. Hence there is come material on record to show that several shopkeepers were allotted municipal chabutras and have been utilizing, them for considerable periods of time. While it would not be appropriate or proper to adjudicate upon the dispute as to the entitlements the record shows existence of certain relevant materials with the MCD. Hence the nature of proceedings under Article 226 has to be 'appropriate' to warrant the circumstances.

53. In view of the above discussion, I am of the considered opinion that while it would not be proper to adjudicate upon individual claims and decide entitlements of the petitioners, yet the fairness of procedure adopted and the legality of the impugned notice is certainly open to scrutiny under Article 226 of the Constitution, particularly, in view of the provisions cited by both the parties. To that extent, there is no question of the Court violating any mandate or express provision of law; nor would the Court be issuing a direction to contravene binding statutory provisions.

54. This court, in exercise of its jurisdiction under Article 226 of the Constitution can judicially review every decision/action or order of an executive or public authority, in order to ensure compliance with law, or compliance with fairness, consistent with Article 14 of the Constitution of India. Speaking about the role of the court, while exercising jurisdiction, the Supreme Court, in Indian Rly. Construction Co. Ltd. v. Ajay Kumar held that:

'One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to the broad area of governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary.... The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only be the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant consideratin...'

Page 1587

55. It has also been held that illegality, mala fides, procedural impropriety, arbitrariness, and non-application of mind, in respect of the executive action or measure can be challenged under Article 226 of the Constittuion (Surya Dev Rai v. Ram Chander Rai ; Tata Cellular v. Union of India 1994 (6) SCC 651; Union of India v. International Trading Co. ). As a consequence, the correctness of the impugned order, in the sense whether it meets the requirements of fairness and non-arbitrariness, having regard to the circumstances, can be examined by this court in writ proceedings.

Point Nos 3 and 4

56. The petitioners rely upon the 1921 bye laws to say that the Takhatbandis put up by them are permissible. A diametrically opposite position was taken by the MCD which principally relies upon the 1964 bye-laws. An examination of the 1921 bye-laws (which appears to have been adopted on 8th March, 1921 by the erstwhile Delhi Municipal Committee) shows that Chabutaras cannot be occupied unless permission is granted by the appropriate authority in that regard under bye law-II. In terms of bye law 4, the permission is only temporary, under Section 170 of the 1911 Act,. The said bye-law 4 enjoins that the allottee cannot enclose it so as to form a Takhatbandi. The Note to bye-law 4, however, relieves the prohibition to a certain extent and permits Takhatbandi in the Chandni Chowk area, at a rental equal to that paid for Chabutras. The note also contains a condition that Takhatbandis will be built subject to Municipal Engineers approvals of designs. By laws 5 and 6 regulates permission to occupy Chabutras and the payment of fees etc.

57. The curious part of 1964 bye laws is that it does not appears to have seen the light of the day to any proceedings prior to the present one. Even in the counter affidavit there was no disclosure as to when those bye-laws came into force; it was only during the course of hearing that counsel was able to lay hands upon a printed publication containing the Notifications of the Delhi Government of the year 1967. It indicates that the bye laws were formalized as per an Order/ Notification No. F.2(38) /6/LSC dated 23rd September, 1967. Bye law 1(b) clearly states that bye laws would come into force on the date of the publication in the official Gazette. The date of the Gazette is 5-10-1967. A copy of the Gazette itself was not produced in the Court. It is on of the cardinal principles of law that a norm or binding regulation has to be clearly notified. In none of the earlier proceedings including the two reported judgments as well as the judgment and decree relied upon by the petitioners as also the previous proceedings before this Court, namely, CW.2986/02 and CW.7679/02, did the MCD ever rely upon or place on record the 1964 bye-laws.

58. Apart from the above considerations, it would be necessary, in view of the elaborate submissions made about the applicability of the 1964 bye-laws Page 1588 since they were produced, and relied upon (and also its application to allottees of Chandni Chowk's so to conform to them), to deal with its terms. The petitioners, on the one hand, submit that such of them who were allotted chabutras before 1964 are exempt from the 1964 bye-laws. It has also been submitted that in any event 1964 bye-laws deal with completely different situations. The Respondent-MCD, on the other hand, has taken the position that the 1964 bye-laws universally apply to all chabutras which were allotted and enclosed whether constructed upon before 1964 or thereafter.

59. Section 516 of the Delhi Municipal Corporation Act repealed the pre-existing laws. Sub section (1)(b) stated that the enactments in the Thirteenth Schedule stand repealed. The thirteenth schedule contains, inter alia, the Punjab Municipal Act, 1911.

Thus, as from the date the Delhi Municipal Act came into force, the provisions of the Punjab Municipal Act ceased to have effect. Sub section (2) of Section 5(1)(6), which begins with non-obstante clause, saves certain acts and passed deeds. Clause (b) states, inter alia, as under :-

'(b) all debts, obligations and liabilities incurred, all contracts entered into and all matters and things engaged to be done by, with or for any of the bodies or local authorities specified in the Second Schedule before such establishment shall be deemed to have been incurred, entered into or engaged to be done by, with or for the Corporation or the municipal authority concerned.'

60. Counsel for the respondent submitted that in order to be covered by the above condition, the contracts ought to have been valid and that they should have been entered into in accordance with Section 47 of the 1911 Act which correspond to Sections 200 and 203 of the Delhi Municipal Corporation Act. It was, therefore, submitted that in the absence of any material to show that such allotments were inconformity with these provisions, the protection under Section 5(1)(6) cannot be claimed.

61. Section 200 of the Delhi Municipal Corporation Act, 1957 deals with disposal of property. The petitioners are not claiming that the Corporation or its successors had ever sold or leased the properties as visualized in Section 47 of the 1911 Act; or Section 200 of the 1957 Act. Likewise, the structure of Section 202 and 203 of the 1957 Act, which correspond to similar provisions under the 1911 Act, are such that the contracts contemplated are those which involve expenditure likely to be incurred by he Corporation and/ or recurring liability. In the present case, neither of the bye-laws express the entering into contracts. The scope of the bye-laws and the nature of the activities in question here is allotment of Municipal space. This is akin to grant of licenses for various purposes that are contemplated and which were also provided for under the 1911 Act. Similar instances can be found in Sections 406, 407, 408, 412, 415 and other provisions of Chapter XX of the Delhi Municipal Corporation Act, which authorize grant of licenses/ permission for carrying on various activities. Hence, without proof of notice or information about the 1964 bye-laws, the MCD could not have, in the conspectus of facts of this case, determined unilaterally that all allotters of chabutras had put up illegal structures.

Page 1589

62. Gulzarilal's case had proceed on the footing that the 1957 Act, particularly Section 317 could not apply, to pre-existing structures put up in municipal chabutras. The court held that by virtue of repeal, under Section 516(2)(b) past contracts and liabilities were covered or preserved. It was urged that even if there is an assumption of implied repeal, there is a presumption that past transactions would be unaffected. I am of the opinion that now, with the framing of the 1964 bye-laws and its relance - though belatedly, the situation has changed. Gulzarilal's was a case where the proceedings initiated were though a civil action; the matter was carried in appeal and the Court confirmed findings of the lower courts. These proceedings however, are under Article 226, where even facts about each petitioner, are disputed. That apart, section 516 preserves debts, obligation, contracts, etc entered, inter alia by the erstwhile municipality under the 1911 Act. To an extent, this mirrors section 6(c) of the General Clauses Act, 1897; that provision outlines the effect of a repeal. It enacts that if a new enactment repeals an existing one, 'unless a different intention appears' the appeal shall not effect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment so repealed. It has been held that the distinction between what is, and what is not a right preserved, under a repealed enactment is often fine. Thus, the right to approach a forum and secure a right ia 'mere expectation' (Ref - Bansidhar v. State of Rajasthan ). The obligations referred to in Section 6 ought to be enforceable ones. In certain situations, rights of an agricultural tenant, to be treated as 'protected tenant' was held as preserved (Sakharam v. Manikchand ; Hiralal v. Nagindass ). However, the right of a 'statutory tenat' to protection against eviction under existing rent control law is an 'advantage' and not a right, an therefore cannot be enforced after repeal. (Qudrat Ullah v. Barielly Municipality ; D.C. Bhatia v. Union of India ). A privilege to get an extension of a license under an enactment is not an 'accrued right' (Ref. Garaj Singh v. State Transport Appellate Tribunal ).

63. With the above understanding it would be necessary to examine the scope and applicability of the 1964 bye-laws. In these, 'Shop' has been defined in clause 2(f) and 'Takhat' has been defined in clause 2(g) to means a portable projection made of wood fixed by hinges to the plinth level of a shop and supported either by ropes; chains or bars attached to the door frame or the walls of the shop or props resting in the street or by both. Clause 3 prohibits to keep or place a takhat on a street of in a public purpose except the permission of the Commissioner under the bye-laws. Clause 3(3)(4) enact Page 1590 that no permission for a takhat shall be given except in front of a shop; and that abut on a municpal Chabutra.

64. Bye-law 4 of the 1964 bye-laws enact that the maximum of a permissible width of a takhat should be 0.6 metre measured from the facade of the shop to which it is fixed and shall be regulated. The various extent of permissible takhats have also been provided having regard to the width of the street in question. Bye-laws 5 and 6 regulates the grant of permission and conditions and bye-law 7 provides for the rate of fees. It would thus be clear that the 1964 bye-laws have made a departure from the pre-xisting state of affairs to the extent that they define what is a 'Takhat' and also provide the conditions on which such 'Takhat' can be permitted. The maximum extent of the 'Takhat' is influenced from the width of the public street where the shop is located.

65. A comparison of the 1921 and 1964 bye-laws would show that the 1921 bye-laws deal essentially with Chabutras and incidentally talk of 'takhats'; an absolute ban on takhats enacted, is, to a certain extent relived by the Note to bye-law 4 which is permitted in the Chandni Chowk area. However, as to what are takhats were defined precisely in the 1964 bye-laws and the maximum extent of such takhats along with the restrictions on their placement and location were also enacted for the first time, therefore, hold that the 1964 Bye-laws deal with the takhatbandis, and are a departure from the earlier situation.

66. The counsel for MCD had repeatedly urged that the conditions the 1964 bye-laws changed the existing state of affairs and that even, otherwise, in the absence of material to show that the allottees of Chabutras secured express permission and that the takhats put up allegedly under the 1921 bye-laws had to conform to the design approved by the Municipal Engineer, those takhts are illegal. It is one thing to say that the pre existing situation did not result in an 'accrued right', but entirely another to say that all past arrangements automatically became illegal after enactment of the 1964 bye-laws. I am of the opinion that the pre-existing state of affairs between 1921 to 1967 when apparently when 1964 bye-laws come into force, could not be disturbed by the 1964 bye-laws, without adequate notice. If the MCD was of the view that the existing state of affairs, by which certain allottees or shop keepers were using chabutras in a particular manner, had to be changed on account of the 1964 bye-laws or that there was a change in policy, such allottees had to be informed about it. No material was placed on record to show how such notice was ever issued. The 1964 bye-laws themselves are being pressed into service for the first time, in these proceedings; they find no mention in any previous proceeding.

67. In the conspectus of the above facts and having regard to the foregoing discussion, I am of the view that all the shopkeepers and allottees of chabutras is Chandni Chowk cannot be characterized as trespassers or encroachers. This finding is on the basis of the admitted facts namely, that the MCD has been recovering both chabutra fee as well as takhatbandi fee from many of them. As a consequence, the MCD could not have taken a unilateral decision to remove all the takhatbandis without considering whether they had been Page 1591 permitted at any stage. If the impugned notice is to be read as confined to only those allottees who had encroached beyond the chabutra and into the pavement, such notice perhaps may have been sustained as one under Section 322. However, the terms of the notice are sweeping and broad. They encompass all alike. The impugned notice treats all alike, thus resulting in equal treatment of unequals. It ignores the possibility of existence of some allottees who are using the chabutras leglly.

68. It has been held that while taking coercive action, or something that results in adverse consequences to individuals, the executive or administrative authority should apply its mind to facts of each case. It is not enough to take precipitate action against a class of persons, with the allegation that all of them are guilty, and tainted. Even if mass action is required, principles of fairness demand that the authority apply its mind to the materials regarding individual cases. In Union of India v. Rajesh P.U. , the Supreme Court held as follows:

'Applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go-by to contextual considerations throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation. In short, the competent authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in xcess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational.

Earlier, in the decision reported as Onkar Lal Bajaj v. Union of India , it was held as follows:

'43...In such a situation, en masse cancellation would be unjustified and arbitrary. It seems that the impugned order was a result of panic reaction of the Government. No facts and figures were gone into. Without application of mind to any of the relevant considerations, a decision was taken to cancel all allotments. The impugned action is clearly against fair play in action. It cannot be held to be reasonable. It is nothing but arbitrary.

44. probity in governance, fair play in action and larger public interest, except contending that as a result of media exposure, the Government in public interest decided to cancel all allotments, nothing tangible was brought to our notice. On 5-8-2002 the only reason was that 'a controversy' had been raised. In the order dated 9-8-2002 the reasons given are that facts and circumstances considered and to ensure fair play in action and in public interest, it was passed. In the counter-affidavit, the aspect of probity in governance has been brought in. Be that Page 1592 as it may, the fact remains that admittedly, no case was examined, not even from a prima facie angle to find out whether there was any substance in the media exposure. None examined the impact that was likely to result because of en masse cancellation. Many had resigned their jobs. It was necessary because of such a stipulation in LOI. Many had taken huge loans. There were many Scheduled Castes/Scheduled Tribes, war widows and those whose near relation had died as a result of terrorist activities. The effect of none was considered. How could all those large number against whom there was not even insinuation be clubbed with the handful of those who were said to have been allotted these dealerships/istributorships on account of political connection and patronage? The two were clearly unequals. The rotten apples cannot be equated with good apples. Under these circumstances, the plea of probity in governance or fair play in action motivating the impugned action cannot be accepted. The impugned order looked from any angle cannot stand the scrutiny of law.

45. by resorting to cancellation of all was worse than the problem. Cure was worse than the disease. Equal treatment to unequals is nothing but inequality. To put both the categories tainted and the rest on a par is wholly unjustified, arbitrary, nconstitutional being violative of Article 14 of the Constitution.'

69. If MCD was of opinion that all the Chabutras had to be the open in the Chandni Chowk and construction, whether temporary or permanent were impermissible, a proper intimation in that regard ought to have been given, after due survey. It is not open, in the course of these proceedings to come up with the plea that the two decisions of this Court were per incuriam when they did not take into account the 1964 bye-laws. The MCD was admittedly a party in those proceedings, it could have brought notice of the Court to the 1964 bye-laws. That was not done. Equally, the records produced also do not show that the MCD was ever of the opinion that the 1964 bye-laws applied uniformly to takhatbandis put upon the Chabutras prior to their enforcement or ther after. Hence, the plea of applicability of the 1964 bye-laws to all alike being taken for the first time, four decades after their framing is unfair and arbitrary. The MCD was under an obligation to inform all concerned about the 1964 Bye-laws, and its policy about continuance or otherwise of takhat bandis, as per such later bye-laws. In a recent judgment, Union of India v. International Trading Co. the Supreme Court outlined the obligation of the State to inform the parties concerned a out change in policy as following:

'While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should out give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play.'

Page 1593

70. Counsel for both parties have relied upon heavily on Sections 317 to 320 of the Delhi Municipal Corporation of Delhi, Act. Counsel for the petitioner had endeavored to submit that the provisions of Section 317 cannot be made to operate since all the Chabutras prior to coming into 1964 Act. I am afraid that scope to Article 226 does not enable me to return such a finding. It is one thing to say that laws operate only prospectively. That however does not mean that powers granted by express provisions of law cannot be exercised for the purposes they are designed to cater to. In other words, if the MCD is under a duty to ensure that public places that have to be dealt with in a particular manner, it can exercise its powers to fulfill those purpose. This conclusion is supported with reference to sections 305 to 307 of the 1957, which empower the MCD and its authorities to define and re-define the regular line of public streets, and require occupants to bring their structures in conformity with such limits. Any other interpretation would imply that there is a vacuum in respect of what are claimed to be old or settled transactions. These provisions create both powers as well as duties with the MCD to ensure that public streets and public areas under its control are utilized only for public purposes. Hence, if there is a determination that certain persons have encroached on the public streets beyond the Chabutras or that some takhatbandhis (or a number of them) put up on the Chabutras are encroachments, the MCD is within its right to deal with it, under the 1957 Act.

71. The next question is what ought to have been the procedure. Pursuant to the directions of this Court in CWP No. 2986/2002 dated 9th May, 2003, some survey appears to have been carried out. The official files contain wardwise details of various shops in the Chandni Chowk area. A look at these show that particulars such as names of some allottees the status as to whether the chabutras are covered besides the amounts outstanding/arrears payable by such allottees and co-relation with the municipal record was made. It is also on record that the officials of the MCD had reported to the Standing Committee and subsequently to the Corporation that 704 such Units exists.

72. In this view it was for the respondents to have taken appropriate action under the law. Learned counsel for the petitioner had submitted that the issuance of the impugned order/ notice is no notice at all since it is vague and does not specify the units and allottees who were in breach of law and also the extent of breach, if any. It is submitted that in the absence of specifications in the impugned order, such shopkeepers who have extended the takhatbandis beyond the Chabutras and into the public street/ pavement have also been clubbed along with those who were allotted the Chabutras, had put up the takhatbandis legally and have been using it for a long period of time. Reliance was placed upon Section 317 to say that it was enacted precisely tcater to such a situation. It was further submitted that the MCD was enjoined to take action according to law which meant that a proper and detailed survey ought to have been carried out involving all concerned and thereafter individual notices ought to have been issued setting forth the precise nature of violation alleged. This would have facilitated a fair procedure and granted some opportunity to the person likely to be affected. In addition any adverse order would also have been appealable.

Page 1594

73. The respondents, on the other hand, had stated that the provisions of the Act gave a choice to either to take action under Section 317 or proceed on the basis of materials to remove the encroachments, as per Section 322. This choice cannot be termed as arbitrary, and in any case having regard to the repeated directions of the Court, the impugned notice has to be read as one under Section 322; it is, therefore, neither arbitrary or unfair. It was also submitted that this choice was made on account of the large number of chabutras allotted in Chandni Chowk and the number of objectionable takhatbandis put up. If individual notices are to be issued or the procedure under Section 317 were to be followed, the process would be unending and protracted. Hence, the simple and expeditious procedure under Section 322 was adopted since it was more practical, having regard to the fact that the overwhelming number of allottes had put up unauthorized structures on the chabutras.

74. Fairness and non-arbitrariness are embedded in our Constitutional democracy. The directions of this court were meant to be complied with in accordance with law, which implied adherence to a fair procedure. The facts of this case show that the MCD cannot term all the petitioners as encroachers. It is not as if they have been squatting or carrying on hawking or impermissible activities in non-permissible zones. The MCD does not dispute that the shop keepers or occupants/ their predecessors are lawful occupants of municipal chabutras. Hence, by one stroke of pen it was not possible for MCD to determine that all the allottee/ occupants were trespassers or encroachers of public lands, regardless of the nature of the structure, the state of documents, which might or might not indicate permission by the authorities, etc. The simple expedient of putting up a public notice, and straightaway proceeding with the demolitions was singularly inappropriate. The MCD cannot be heard to contend that compliance with natural justice would be an unnecessary and cumbersome exercise or that it would be inconvenient, having regard to the large number of persons who would have to be given opportunity. It has been held that where a law prescribes alternative procedures for ealing with identical situations, the law may not be discriminatory, if it enacts guidelines in that regard, or if the choice is exercised on reasonable basis. However, if the choice is made, or discretion exercised to adopt a more onerous procedure, irrationally, or on arbitrary grounds, that decision violates Article 14 of the Constitution of India (Ref Commissioner, Sales Tax v. Radhakrishnan ). In West Bengal Electricity Regulatory Commission v. CESC Ltd. , the Supreme Court held that the approach of dispensing with natural justice on ground of administrative inconvenience or unviability of hearing was not tenable and the authority was under a duty to comply with principles of natural justice, even if it entailed ome delay, or a cumbersome procedure :

Page 1595 'That apart, when a statute confers a right which is in conformity with the principles of natural justice, in our opinion, the same cannot be negatived by a court on an imaginary ground that there is a likelihood of an unmanageable hearing before the forum concerned. As noticed above, though normally price fixation is in the nature of a legislative function and the principles of natural justice are not normally applicable, in cases where such right is conferred under a statute, it becomes a vested righ, compliance of which becomes mandatory. While the requirement of the principles of natural justice can be taken away by a statute, such a right when given under the statute cannot be taken away by courts on the ground of practical inconvenience, even if such inconvenience does in fact exist.'

A similar reasoning is to be found in the judgment reported as Bhagwant Singh v. Commr. of Police .

75. In somewhat identical circumstances the action of the Bombay Municipal Corporation in removing encroachments of pavements, were involved, the Supreme Court emphasised the need to resort to a fair procedure and grant hearing. The Court interpreted pro visions which are similar or in pari materia Section 317 of the 1957 Act, in Olga Tellis v. Bombay Municipal Corporation in the following manner.

'46. The contention of the Corporation that no notice need be given because, there can be no effective answer to it, betrays a misunderstanding of the rule of hearing, which is an important element of the principles of natural justice. The decision to dispense with notice cannot be founded upon a presumed impregnability of the proposed action. For example, in the common run of cases, a person may contend in answer to a notice under Sec. 314 that (i) there was, in fact, no encroachment on any public Board, footpath or pavement, or (ii) the encroachment was so slight and negligible as to cause no nuisance or inconvenience to other members of the public, or (iii) time may be granted for removal of the encroachment in view of humane considerations arising out of personal, seasonal or other factors. It would not be right to assume that the Commissioner would reject these or similar other considerations without a careful application of mind. Human compassion must soften the rough edges of justice in alliterations. The eviction of the pavement or slum dweller not only means his removal from the house but the destruction of the house itself. And the destruction of a dwelling house is the end of all that one holds clear in life. Humbler the dwelling, greater the suffering and more intense the sense of loss.

47. The proposition that notice need not be given of a proposed action because, there can possibly be no answer to it, is contrary to the well-recognized understanding of the real import of rule of hearing. That proposition overlooks that justice must not only be done but must manifestly be seen to be done and confuses one for the other. The appearance of Page 1596 injustice is the denial of justice. It is the dialogue with the person likely to be affected by the proposed action which meets the requirement that justice must also be seen to be done. Procedural safeguards have their historical origins in the notion that conditions of personal freedom can be preserved only when there is some institutional check on arbitrary action on the part of public authorities. (Kadish, 'Methodology and Criteria in Due Process Adjudication - A Survey and Criticism', (1957) 66 Yale LJ 319, 340. The right to be heard has two facets, intrinsic and instrumental. The intrinsic value of that right consists in the opportunity which it gives to individuals or groups, against whom decisions taken by public authorities operate, to participate in the processes by which those decisions taken by public authorities operate, to participate in the processes by which those decisions are made, an opportunity that expresses their dignity as persons (Goldberg v Kelly (1970) 397 US 254, 264-65 (right of the poor to participate in public processes).

'Whatever its outcome, such a hearing represents a valued human interaction in which the affected person experiences at least the satisfaction of participating in the decision that vitally concerns her, and perhaps the separate satisfaction of receiving an explanation of why the decision is being made in a certain way. Both the right to be heard from, and the right to be told why, are analytically distinct from the right to secure a different outcome; these rights to interchange express the elementary idea that to be a person, rather than a thing, is at least to be consulted about what is done with one. Justice Frankfurter captured part of this sense of procedural justice when he wrote that the 'validity and moral authority of a conclusion largely depend on the mode by which it was reached....No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for enerating the feeling, so important to a popular government, that justice has been done' (Joint Anti-fascist Refugee Committee v. McGrath (1950) 341 US 123, 171-172). At stake here is not just the much-acclaimed appearance of justice but, from a perspective that treats process as intrinsically significant, the very essence of justice' (See 'American Constitutional Law' by Laurence H. Tribe, Professor of Law'. Harvard University (Ed. 1978, page 503).

The instrumental facet of the right of hearing consists in the means which it affords of assuring that the public rules of conduct, which result in benefits and prejudices alike, are in fact accurately and consistently followed.

'It ensures that a challenged action accurately reflects the substantive rules applicable to such action; its point is less to assure participation than to use to assure accuracy' (See Laurence H.Tribe, page 503).'

76. The impugned notice is, therefore, arbitrary and unsustainable in law. As discussed above, it treats all alike irrespective of whether they have been in occupation of the chabutras and have been paying license fee towards the chabutra and the take atbandis, and whether they are legal. The MCD was and continues to be under a duty to remove encroachments both in terms of Supreme Court's directions as well as orders of this Court. That, however did Page 1597 not arm it with the power to take arbitrary action No doubt, power exists under Section 322 of the Act, nevertheless the use of that power to adversely affect legal and illegal user alike, regardless of whether any information or application about the 1964 Bye-laws was given, amounts to arbitrary choice of a harsh procedure. On the other hand, if notice as per Section 317(2) is given, the occupant would have fair opportunity to either comply, or contest be heard, and thereafter, face coercine action.

77. Neither in the pleadings nor in the official records has the MCD discussed the need to take a policy decision about the takhatbandis. In the counter affidavit it has been admitted that chabutras were allotted; its stand, however, is that no takhatbandhi could have been permitted after 1964 except in conformity with bye-laws. Here, the two realities have to be taken into consideration. One the extreme congestion in the Chandni Chowk area; a large part of it is on account of hawking; the Supreme Court has time and again directed stoppage of that activity. Some of this congestion is also on account of encroachments beyond the chabutras; beyond what perhaps was the original building line drawn in 1911 to align the shops. The MCD has to, therefore, adept a rational and fair procedure whereby those encroachments on the public street/ pavements beyond the chabutras have to be first identified and removed. Such encroachments by the shopkeepers who are also allottees of chabutras, are clearly without any authority of law. Next is the isue of the takhatbandis. As stated earlier the chabutras are admittedly Municipal lands. The claim in these proceedings cannot be understood as one for declaration of title; neither can such a dispute be within the jurisdiction of the Court nor can the relief be even granted in the facts of these cases. Hence, all that can be stated is that the MCD should take a policy decision as to the nature of takhatbandis permissible on the chabutras. It may do so keeping in mind the 1964 bye-laws, and its previous policies, the existing situation, needs of the pedestrian public, and all other relevant considerations. It should conduct a survey, for the purpose of identifying what structures/ enclosures are in accordance with its norms, and policies.

78. Chandni Chowk was the heart of the city for many centuries. Even today it is an unalterable landmark; an organic, link to the past, and testament to our glorious plural traditions. The Mughals conceived and built it; and traders from all over the word used it. Its surroundings house all kinds of markets and commercial spaces. Its uniqueness as a heritage site cannot be underestimated. The MCD in my opinion, ought to take a decision after proper survey of all the chabutras as to what according to it are permissible enclosures, on the chabutras, and which among them conform to the 1964 bye-laws. Thereafter, the MCD ought to issue notices to the individual allottees/ shopkeepers, on the proposed course of action. In the event, the MCD is of the opinion that the structure has to be demolished, a notice as per Section 317 of the Act ought to be given and reasonable opportunity of showing cause should also be given. It is an admitted fact that about 700 allottees exist. Hence, if elaborate hearing were to be granted, the process would become unending. As a result, the MCD should appropriately devise a method of bunching up similar Page 1598 categories of cases, either on the basis of location or any other basis. Appropriate orders, as per law shall be passed after giving adequate opportunity to the allottees/ shopkeepers.

79. There are several petitioners who claim to be occupants of takhats and saibans on the upper floors. Ms. Kumar had relied upon certain amendments made in 1927 and 1933, to the 1921 bye-laws. There is only a passing reference to the rate of fee charge able in respect of portions on the first floor. However, today's reality is that the shops have been built up to fourth and in some cases allegedly even fifth floor levels. Nothing was shown to me during the course of these proceedings to justify the existence of such structures Saibans beyond the first floor. I am, therefore, of the view that such persons in occupation of the second and third floor and beyond over such structures have not been able to disclose any rights as per the 1921 bye-laws or eve the subsequent bye-laws.

80. My findings, therefore, are that the impugned notice is not sustainable and requires to be set aside. The MCD should carry out a proper survey, thereafter issue appropriate notices under Section 317 and grant opportunity of hearing. The precise modalities or mechanism of hearing may be devised by the MCD; it may grant hearing and pass common orders collectively in different classes of cases. However, under no circumstances should the persons likely to be affected, denied opportunity. While taking a decision as to whether and if under what circumstances the takhatbandis ought to be retained and the terms thereof, the MCD may consider the feasibility of formulating a common design for non-permanent structures having regard to the provisions of the 1964 bye-laws. This would facilitate aesthetics and ensure uniformity.

81. The following directions are, therefore, issued:-

(1) The impugned notice dated 14-15/1/2005 is hereby quashed/ set aside;

(2) The MCD shall carry out a survey which with regard to individual shopkeepers/ allottees and measure out respective areas which have been enclosed, nature of enclosures (permanent/ temporary) and also whether any enclosures are beyond the chabutras sos to constitute encroachments on public places; or are not permissible;

(3) The MCD thereafter shall on the basis of a common and uniform policy, and the materials gathered through the survey issue notices under Section 317 to the individuals or occupants concerned ; the notices shall clearly state the nature of violations, of any, and give specific dates of compliance/ hearing. The notices may also be published in an appropriate manner, to facilitate speedy resolution of the matter. This exercise of survey, and issuance of notices shall be completed w thin 4 months from today,

(4) The persons issued with notices shall be afforded adequate opportunity of hearing; the MCD shall pass appropriate orders after hearing the allottes/ shopkeepers concerned. The hearings shall be given having regard to the class of allottees; it is open to the MCD to evolve a suitable, simple Page 1599 and common procedure for the purpose of hearing, and pass common orders, having regard to the facts of the case(s) before it;

(5) While passing these orders, if the MCD is of the view that the shopkeeper/ occupant is a bonafide allottee of the chabutra but has enclosed an impermissible construction, the remedial action, and time frame to comply with the order shall also be clearly given. While doing so, the MCD may consider the feasibility of uniform design, (for non-permanent takhatbandis, as per 1964 bye-laws), formulated or evolved for the purpose, having regard to the general enviorns of Chandni Chowk; this direction shall not be construed as a fetter upon the decision by the MCD it is of the opinion that the chabutra should not be covered. All rights and contentions of parties are kept open in those proceedings, subject to the findings and observations in the judgment.

(6) The entire exercise shall be completed within a period of nine months after the completion of survey and issuance of notices.

(7) The Commissioner, MCD shall appoint a Nodal Officer, not below the rank of a senior Deputy Commissioner, or Additional Commissioner, responsible for overseeing these directions. The Nodal officer shall file compliance reports, in the form of affidavits, every two months, indicating the action taken on the basis of these directions. The nodal officer shall facilitate implementation of these directions, but shall not hear the objections to notices, if he has been a party to the survey carried out, as per these directions.

(8) The Registry is directed to place the action taken reports on the Tuesday immediately after the filing of each such report, (or the next working day, in case Tuesday is a holiday) for monitoring/ directions by the court. The first compliance affidavit shall be filed within eight weeks; the matter shall be placed before court, on 29th November, 2005.

The petitions are disposed of in the light of the above directions with no order as to costs.