New Delhi Municipal Council vs Usha Gangaria And Ors.
2011 Latest Caselaw 6338 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Date of decision: 23rd December, 2011

+                                W.P.(C) NO. 13647/2009

NEW DELHI MUNICIPAL COUNCIL                                           .....Petitioner
                                             Versus
USHA GANGARIA AND ORS.                                              .....Respondents

Along with
W.P.(C) NO.13648/2009
NDMC v. MOHD. AHSAN & ORS.

W.P.(C) NO.13649/2009
NDMC v. PANKAJ PANDEY & ORS.

W.P.(C) NO.13650/2009
NDMC v. SANJAY BABU GUPTA & ORS.
            AND
W.P.(C) NO. 13390/2009
NDMC v. SODAN SINGH & ORS.

Present: Ms. Madhu Tewatia with Ms. Sidhi Arora, Advocates for petitioner
            in all
            Mr. Anup G. Chaudhary, Sr. Advocate with Mr. N.K. Sahoo, Adv
            for R-1 in all
            Ms. Shobhana Takiar, Adv. for DMRC in all
            Mr. Najmi Waziri, Adv. for GNCTD in all




W.P.(C) Nos. 13647 to 13650 & 13390 all of 2009                        Page 1 of 19
 CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

                                       JUDGEMENT

RAJIV SAHAI ENDLAW, J.

1. The five petitions question the power of the Vending Committee and

the Appellate Authority constituted, initially under the directions of the

Supreme Court, as noticed in Sodan Singh vs. NDMC (1998) 2 SCC 727

and Sudhir Madan vs. MCD 2007 (8) SCALE 339, to regulate hawking,

squatting and vending on the streets and under the National Policy on Urban

Street Vendors, 2004, replaced by the Policy of 2009. The petitions

challenge the orders of the Appellate Authority restraining the petitioner

NDMC from disturbing and/or removing the hawkers/squatters/vendors

impleaded as respondents in the petitions from their respective squatting

places and directing the petitioner NDMC to maintain status quo. Notices of

the petitions were issued and counter affidavits have been filed by the

respondents/vendors. The counsels have been heard.

2. It is not in dispute that the Vending Committee and the Appellate

Authority were not constituted by or under a statute but owe their existence

either to the judicial pronouncements or the Policy (supra). It is also not in

dispute that there is no express provision, neither in the Policy nor in the

judicial pronouncements empowering the Vending Committee and/or the

Appellate Authority to pass orders as under challenge in these petitions. It is

in this background that it needs to be deciphered whether the Vending

Committee and/or the Appellate Authority are empowered to pass

orders/interim orders impugned in these petitions.

3. Questions as aforesaid have been arising before the Courts from time

to time. The Apex Court in Morgan Stanley Mutual Fund vs. Kartick Das

(1994) 4 SCC 225 was faced with the entitlement of the fora constituted

under the Consumer Protection Act, 1986 to grant such interim orders.

Finding the Act, to have not conferred any such power to grant any interim

relief or ad-interim relief and, having conferred power only to grant the final

relief, it was held that the said fora could not be held to be empowered to

grant interim injunction.

4. The Supreme Court in Managing Director, Army Welfare Housing

Organization v. Suganmal Services (P) Ltd. (2004) 9 SCC 619 reiterated

that an Arbitrator under the Arbitration Act, 1940 has no jurisdiction to pass

an interim order. It was further held that an Arbitral Tribunal is not a Court

of law, its orders are not judicial orders, its functions are not judicial

functions; it cannot exercise its power ex debito justitiae.

5. Recently in Rajeev Hitendra Pathak v. Achyut Kashinath Karekar

(2011) 9 SCC 541, again the question was whether the District Forums and

the State Commissions under the Consumer Protection Act, 1986 have the

power to set aside their own ex parte orders or the power to recall or review

their own orders. The Apex Court again held that the said fora being creature

of the statute derive their powers from the express provisions of the statute

and the powers which have not been expressly given by the statute cannot be

exercised. Finding that no such power had been vested in the District

Forums or the State Commission, it was held that no such power could be

exercised by them.

6. This Court also in Bhupinder Singh vs. Delhi Commission for

Women 137 (2007) DLT 411 held that the Delhi Commission for Women

constituted under the Delhi Commission for Women Act, 1994 had no

power for issuing any direction for payment of maintenance. It was observed

that though the said Commission had been vested with all the powers of a

Civil Court in carrying out an investigation relating to safeguards provided

for women under the Constitution and other laws as also with regard to the

matters relating to deprivation of women's rights but in the absence of any

power to pass order or direction for maintenance, the same could not be

inferred. It was observed that powers to grant interim orders are vested in the

Courts only.

7. Similarly, recently in Competition Commission of India vs. Steel

Authority of India Ltd. (2010) 10 SCC 744, it was held that the power under

Section 33 of the Competition Act, 2002, to pass temporary restraint order

can only be exercised when the conditions laid down for exercise of the said

power were met and not otherwise. So also in State Bank of Patiala vs.

Vinesh Kumar Bhasin (2010) 4 SCC 368, it has been held that the Persons

with Disabilities (Equal Opportunities, Protection of Rights and Full

Participation) Act, 1995 did not empower the Commissioner under the said

Act to issue any interim order directing a person with disability to be

continued in service beyond the age of retirement; it was held that an

authority functioning under the Disabilities Act has no power or jurisdiction

to issue a direction and the fact that the Act clothed the Commissioner with

certain powers of Civil Court for discharge of its functions did not enable

the Commissioner to assume other powers of a Civil Court which are not

vested in him by the provisions of the Act and the powers of a Civil Court

for granting injunctions − temporary or permanent, do not inhere in the

Commission nor such a power can be inferred or derived.

8. The Supreme Court in Maharashtra Electricity Regulatory

Commission v. Reliance Energy Ltd. (2007) 8 SCC 381 also held that the

State Electricity Regulatory Commission constituted under the Electricity

Act, 2003 had no power to issue a direction for refund though was

empowered to issue a general direction to the licencees to abide by the

conditions of the licence and charge only as per the tariff fixed under the

Act.

9. Per contra, a Division Bench of this Court in Ram Kishan v. NDPL

130 (2006) DLT 549 held that this Court would not entertain writ petitions

regarding disputes relating to electricity, water, telephone bills etc. when an

alternative remedy has been provided by the statutes before some fora; that

if this Court were to entertain such petitions, it will be flooded with lakhs

and lakhs of such writ petitions and will be doing no other work except

deciding such writ petitions. While meeting the pleas that the fora

constituted under the Electricity Act, 2003 were not empowered to grant

interim protection and thus could not be said to be providing efficacious

alternative remedy, it was observed that the forum and Ombudsman under

Sections 42(5) and 42(6) respectively have inherent powers of passing

interlocutory orders pending the decision of the representations before them

including interlocutory orders for stay. However, the source of such power

was traced to Regulation 9(8) of the Delhi Electricity Regulatory

Commission (Guidelines for Establishment of Forum for Redressal of

Grievances of the Consumers and Ombudsman) Regulations, 2003

empowering issuance of interim orders pending final disposal. It would thus

be seen that the power was traced to the Regulation (supra).

10. This Court in M.Z. Khan vs. Securities and Exchange Board of

India 77 (1999) DLT 706, though held SEBI to be having a power to pass

interim orders, traced the source thereof to Sections 11 and 11B of the SEBI

Act, 1992 and did not hold such a power to be an inherent power.

11. In In Re Cauvery Water Disputes Tribunal 1993 Supp (1) SCC 96 II,

one of the questions referred to the Supreme Court was whether the Water

Disputes Tribunal constituted under the Inter-State Water Disputes Act,

1956 is competent to grant any interim relief to the parties to the dispute. It

was held that under Section 11 of the Act read with Article 262 of the

Constitution of India, the entire judicial power of the State and therefore, of

the Courts including that of the Supreme Court to adjudicate upon original

dispute stood vested in the Tribunal and for this reason it was not possible to

accept the submission that the question of grant of interim relief falls outside

the purview of the said provisions.

12. It would thus appear that in the absence of any express vesting of a

power to issue interim orders, even statutory bodies have been held to be

having no power to grant interim reliefs.

13. However, a Division Bench of this Court in judgement dated 1st

September, 2011 in RFA No. 250/2011 titled Music Broadcast Pvt. Ltd. v.

Super Cassette Industries Ltd. held the Copyright Board constituted under

the Copyright Act, 1957 to be possessing power to pass interim orders in

proceedings under Section 31 of the Act. Such a power was not traced to any

provision of the Act or the Rules but held to be ancillary or incidental and

necessary to enable the Board to discharge its functions effectively for doing

justice between the parties. A catena of judgments laying down the said

principle were noticed by the Division Bench. Morgan Stanley Mutual

Fund (supra) was distinguished observing that the Consumer Protection Act

provided for the grant of final relief only. It was further held that if the

Board was held to be not empowered to grant interim relief, consequence

thereof will be complete frustration of rights under Section 31 of the Act.

14. A Division Bench of the Bombay High Court also in Viswasrao

Chudaman Patil v. Lokayukta, State of Maharashtra AIR 1985 Bombay

136 justified, a reading of a power in the Lokayukta constituted under the

Maharashtra Lokayukta and Upa-Lokayukta Act, 1971 to make interim

recommendation in tune with the power to make a final recommendation

under Section 12 of that Act, to effectual performance of the work for which

the Office of the Lokayukta had been created and so that the order or

decision of the Lokayukta is not a barren success. I may however add that

the power was also traced to Rule 35 of the Rules under the Act.

15. In the aforesaid legal scenario, it needs to be determined whether the

Vending Committee and the Appellate Authority aforesaid can be said to be

enjoying the power to issue orders − interim or otherwise, restraining

NDMC from dispossessing any of the hawkers/squatters/vendors (to whom

no licences/permission has been granted) from the streets on which they

claim to be squatting.

16. The 2004 Policy provides for setting up of Vending Committees

consisting of representatives of Municipal Authority, Traffic and Local

Police, Public Land Owning Authority, Market/Traders/Residents Welfare

Association and Association of Street Vendors. The functions of the

Vending Committee are described as:-

(i)     Demarcation of vending and non-vending areas;
(ii)    Provision and identification of space for squatting and areas for

hawking. Provisions for space may include temporary designations as Vendor markets (e.g. as weekly markets) whose use at other time may be different (e.g. Public Parks, Parking lots) etc.;

(iii) Timing restrictions on the urban vending. It should correspond to needs of ensuring non-congestion of public spaces;

(iv)    Public hygiene and cleanliness;
(v)     Ensure continuation and upgradation of weekly markets;
(vi)    Quantitative norms i.e. where to allow, how many squatters or
        persons;
(vii) Qualitative guidelines: This has to include
                - Provision for solid waste disposals,
                - Public toilets to maintain cleanliness;
                - Aesthetic design of mobile stalls/push carts;
                - Provision for electricity;

- Provision for protective cover to protect their wares as well as themselves from heat, rain, dust etc;

(viii) Regulatory Process;

 (ix)    Registration system;
(x)     Corrective mechanism against defiance by vendors;
(xi)    Collection of revenues; and
(xii) Monitoring mechanism

The Policy also entrusts the Vending Committee with the power to register

the hawkers/squatters/vendors, issue identity cards to them stating inter alia

their hawking/squatting/vending site, put up proposals for disposal of solid

waste, provision for electricity and public toilets and recommending fee.

17. The 2009 Policy defines Vending Committee, as a body for protecting

the livelihood of street vendors while at the same time imposing restrictions

for ensuring free flow of traffic and addressing concerns relating to public

health and hygiene in public interest. The 2009 Policy however, also makes

the Vending Committee responsible for redressal of grievances and

resolution of any dispute arising amongst the street vendors or between the

street vendors and third parties including Municipal officials and Police in

the implementation of the Policy.

18. At this stage, the position under the New Delhi Municipal Council

Act, 1994 may also be noticed. Under Section 202 thereof the public streets

vest in the NDMC and NDMC is empowered to take action with respect to

obstruction or nuisance in the street. The power to grant permission to

hawk/squat/vend on the public street is of the NDMC and neither under the

Policy nor the judgements supra, is shown to be vested in the Vending

Committee or the Appellate Authority. The Apex Court in Sodan Singh

(supra) also though holds a right to hawk on the streets to be a Fundamental

Right but to be not an absolute right and subject to restrictions. The Apex

Court in Gainda Ram v. MCD (2010) 10 SCC 715 has held the power to

place restrictions in this regard to be vested in the NDMC.

19. It is the contention of the petitioner NDMC that for selection and

allotment of tehbazari sites, 'G.P. Thareja Committee' was constituted under

the directions of the Supreme Court; that NDMC has never encouraged

squatting on the streets due to its peculiar geographical position and the

tehbazaris in the NDMC area up to the year 1989 were limited to 228 only;

that at the time of the appointment of G.P. Thareja Committee in 1989, it

was estimated that about 1500 persons were unauthorizedly attempting to

squat in the NDMC area. The Thareja Committee invited applications for

allotment of sites in NDMC area and more than 5000 applications were

received; after investigating and scrutinizing each application and inspecting

the site, the Committee verified 760 persons eligible for squatting in the

NDMC area and another 16 cases were identified as hardship cases; that the

remaining applicants were found to be ineligible for squatting in NDMC

area; the Thareja Committee also identified 109 sites for squatting and of

which 33 sites were objected to by the NDMC; ultimately the Supreme

Court identified and approved 126 sites for squatting and directed removal

of all unauthorized squatters. However, subsequently some of the sites

identified had to be abandoned for security reasons. Owing to the aforesaid

development, the Apex Court vide orders dated 6th February, 2007 and 17th

May, 2007 approved new/modified Schemes for permitting hawking and

squatting in the NDMC area.

20. The process of identification of vending sites and determining the

eligibility for allotment thereof is still on. Infact the matter is still alive

before the Supreme Court. I may also notice that a Single Judge of this

Court vide judgement dated 24th October, 2011 in W.P.(C) No. 4743/2011

titled Shiv Nath Choudhary v. NDMC and in other connected petitions has

held that the Supreme Court being seized of the matter, even this Court is

not entitled to grant any orders as sought in those petitions restraining

NDMC from dispossessing the hawkers/squatters/vendors from the streets.

The intra-Court appeals against the said judgement have been dismissed.

21. The question which arises is whether the Vending Committee and/or

the Appellate Authority are empowered to stay dispossession from the

streets of hawkers/squatters/vendors merely for the reason that their claims

for allocation of vending site are pending consideration before the Vending

Committee/Appellate Authority.

22. Irrespective of the powers of the Vending Committee/Appellate

Authority in this regard, if the same were to be permitted, it will choke the

streets leaving hardly any space for pedestrian or vehicular movement. Such

a state of affairs cannot be permitted.

23. The respondents/vendors in whose favour the interim protection was

granted by the Appellate Authority have in their counter affidavit pleaded

that they have been hawking/squatting/vending at their respective sites for

years; some of them have, in support thereof, also filed plethora of

documents; that on 23rd April, 2008, the Supreme Court had constituted the

Vending Committee and the Appellate Authority for adjudication of the

claims of hawkers/squatters/vendors and had refused to entertain the

applications of the squatters complaining of dispossession and granted them

liberty to move appropriate applications before the Vending Committee and

directed the Vending Committee to go into the applications and allot them

some site on provisional basis till their claims for a tehbazari site were

adjudicated; that with the same motive, an Additional District Judge was

directed to be appointed in the Vending Committee and on 15th December,

2008, it was clarified that the hawkers/squatters/vendors would be entitled to

raise all their contentions before the said Committee; that the Appellate

Authority had granted interim protection also in light of Section 3 of the

National Capital Territory of Delhi Laws (Special Provisions) Act, 2009.

24. The senior counsel for the respondent hawkers/squatters/vendors

relied on the order dated 8th May, 2008 of the Supreme Court in I.A. Nos. 4

and 5 in SLP (Civil) No. 17472/2005 titled as Siya Ram v. Union of India

where the Supreme Court refused to entertain the individual grievances of

the hawkers having regard to the fact that the appropriate Vending

Committee had already been set up and also directed the appointment of a

retired High Court Judge to head the Appellate Authority. He has contended

that the Supreme Court having appointed a Retired Judicial Officer, the

presumption of the Appellate Authority having power to issue interim

directions has to be drawn.

25. The Vending Committee and the Appellate Authority are found to be

merely administrative and/or recommendatory bodies. The Vending

Committee under the said power is not found to be entitled to adjudicate

whether a person who till now has not been found eligible under the Policy

for a vending site, be allowed to obstruct the street or not or whether the

NDMC is entitled to remove him or not. Admittedly, the Vending

Committee or the Appellate Authority are not Courts. It is only Courts

which can be said to be enjoying power to issue interim orders/directions.

The Vending Committee and the Appellate Authority save for identifying

the vending sites and the vendors entitled to priority in allotment thereof,

otherwise are only entrusted with taking measures for welfare of the street

vendors. Their powers are not found to be in derogation of the duty of the

NDMC to maintain the streets and to keep the streets free of obstruction.

The observations in the orders of the Supreme Court that the said bodies

were intended to provide a complete mechanism for redressal of all

grievances of the hawkers/squatters/vendors cannot be read to be vesting the

said bodies with the power of passing any interim orders. The said

observations have to be read in the context of the entire order. The orders

directed the constitution of the Vending Committee and the Appellate

Authority to identify hawking/squatting/vending sites and eligibility /

priority of the claimants/applicants/hawkers/squatters/vendors. The complete

mechanism has thus been provided on the said aspect only and not for

adjudication of whether pending the proceedings before such bodies, any

right enures or not.

26. The power of dispute resolution in the Vending Committee vested

under the 2009 Policy is also restricted to, in the course of implementation

of the Policy and is not found to be an adjudicatory power. Even otherwise,

the dispute resolution power conferred on the Vending Committee under the

2009 Policy is akin to and/or in the nature of a conciliatory power. It cannot

be lost sight of that both NDMC and the representatives of

hawkers/squatters/vendors are members of the Vending Committee. A

Committee of adversaries cannot be said to be having adjudicatory powers.

The dispute resolution power conferred on the Vending Committee under

the 2009 Policy is on the entire Committee which as aforesaid comprises of

several members and of whom the Additional District Judge is but one of the

members. There is nothing to indicate that the dispute resolution power

vested in the Vending Committee (under the 2009 Policy) is to be exercised

by the Additional District Judge only. Moreover, a body comprising several

members which can be even in number, cannot be said to be having

adjudicatory powers as of a Court. Though the Policy does not provide for

an Appellate Authority which appears to be a creature of the judicial

pronouncements only but during the course of hearing, it was informed that

the Appellate Authority also comprises of several members of whom a

Retired High Court Judge is but one. Thus, what has been observed herein

qua the Vending Committee applies equally to the Appellate Authority as

well.

27. As far as the reference by the Appellate Authority to the provisions of

Delhi Special Provisions Act (supra) is concerned, even if it were to be held

that the hawkers/squatters/vendors are entitled to any protection under the

said Act, such protection has to be sought by approaching a Court of law and

not by moving the Vending Committee and/or the Appellate Authority. As

aforesaid, the Vending Committee and the Appellate Authority were

constituted only to identify the vending sites and to determine eligibility /

priority of the hawkers/squatters/vendors.

28. The petitions therefore succeed. The Vending Committees and/or the

Appellate Authority are held to be not empowered and entitled to issue any

interim orders/directions restraining NDMC from dispossessing any

hawker/squatter/vendor not holding permission/licence, from the NDMC

areas. Accordingly, the orders impugned, in so far as directing the status quo

to be maintained or restraining the NDMC from dispossessing / removing

the respondent hawkers/squatters/vendors from the sites on which they claim

to be hawking/squatting/vending are set aside / quashed.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) DECEMBER 23, 2011 'raj'