Delhi High Court
Shiv Nath Choudhary vs Ndmc & Ors. on 24 October, 2011
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 21.09.2011
Pronounced on: 24.10.2011
+ W.P.(C) 4743/2011 and 5254/2011
IN THE MATTERS OF
SHIV NATH CHOUDHARY ..... Petitioner in W.P.(C) 4743/2011
RAM DASS ..... Petitioner in W.P.(C) 5254/2011
versus
NDMC & ORS. ..... Respondents
Alongwith W.P.(C) 2601/2011, 2602/2011, 3052/2011,
4347/2011, 4559/2011, 4593/2011, 4610/2011, 4650/2011,
4651/2011, 4649/2011, 4722/2011, 4739/2011, 5046/2011,
5051/2011, 5157/2011, 4775/2011, 4827/2011, 4923/2011,
5024/2011, 5028/2011, 5247/2011, 5255/2011, 5257/2011,
5258/2011, 5261/2011, 5262/2011, 5263/2011, 5264/2011,
5277/2011, 5292/2011, 5312/2011, 5317/2011, 5402/2011,
5403/2011, 5420/2011, 5405/2011, 5408/2011, 5410/2011,
5411/2011, 5413/2011, 5418/2011, 5423/2011, 5444/2011,
5473/2011, 5484/2011, 5485/2011, 5497/2011, 5498/2011,
5503/2011, 5504/2011, 5505/2011, 5506/2011, 5507/2011,
5508/2011, 5595/2011, 5614/2011, 5615/2011, 5616/2011,
5618/2011, 5627/2011, 5630/2011, 5631/2011, 5643/2011,
5645/2011, 5654/2011, 5656/2011, 5711/2011, 5717/2011,
5718/2011, 5728/2011, 5729/2011, 5731/2011, 5732/2011,
5737/2011, 5738/2011, 5739/2011, 5743/2011, 5761/2011,
5784/2011, 5785/2011, 5791/2011, 5794/2011, 5797/2011,
5798/2011, 5822/2011, 5911/2011, 5918/2011, 5928/2011,
5931/2011, 5933/2011, 5934/2011, 5935/2011, 5957/2011,
5965/2011, 5966/2011, 5967/2011, 5968/2011, 5969/2011,
5970/2011, 5974/2011, 6096/2011, 6100/2011, 6101/2011,
6102/2011, 6107/2011, 6108/2011, 6114/2011, 6115/2011,
6116/2011, 6117/2011, 6118/2011, 6119/2011, 6120/2011,
6121/2011, 6122/2011, 6123/2011, 6144/2011, 6250/2011,
6270/2011, 6271/2011, 6449/2011, 6527/2011, 6528/2011,
6529/2011, 6530/2011, 6531/2011, 6532/2011, 6533/2011,
6534/2011, 6538/2011, 6555/2011, 5173/2011, 3181/2011,
3185/2011, 3189/2011, 3196/2011, 4340/2011, 4342/2011,
W.P.(C) 4743/2011, 5254/2011 & connected matters Page 1 of 28
4343/2011, 4344/2011, 4345/2011, 4349/2011, 4350/2011,
4352/2011, 4354/2011, 4356/2011, 4358/2011, 4359/2011,
4360/2011, 4361/2011, 4362/2011, 4363/2011, 4364/2011,
4365/2011, 4366/2011, 4367/2011, 4368/2011, 4369/2011,
4370/2011, 4371/2011, 4372/2011, 4373/2011, 4374/2011,
4375/2011, 4377/2011, 4387/2011, 4388/2011, 4389/2011,
4391/2011, 4392/2011, 4393/2011, 4395/2011, 4396/2011,
4397/2011, 4398/2011, 4399/2011, 4400/2011, 4402/2011,
4404/2011, 4405/2011, 4406/2011, 4407/2011, 4408/2011,
4409/2011, 4410/2011, 4412/2011, 4413/2011, 4414/2011,
5341/2011, 4847/2011, 4859/2011, 4887/2011, 4990/2011,
5063/2011, 5089/2011, 5099/2011, 5114/2011, 5115/2011,
5117/2011, 5129/2011, 5139/2011, 5144/2011, 6667/2011,
6668/2011, 6669/2011, 6670/2011, 6684/2011, 6701/2011,
6708/2011, 6799/2011, 6824/2011, 6825/2011, 6826/2011,
6827/2011, 6896/2011, 6901/2011, 6902/2011, 6903/2011,
6904/2011, 6905/2011, 6906/2011, 6907/2011, 6908/2011,
6909/2011, 6910/2011, 6917/2011, 6919/2011, 6920/2011,
6921/2011, 6922/2011 and 6932/2011.
Present: Mr. B. B. Sawhney, Sr. Advocate with Mr. Ankan Suri, Mr.
Lakshay Sawhney, Mr. Ankur Suri and Mr. Sunil Kumar,
Advocates for the petitioners.
Mr. Sumit Kumar Singh, Mr. Anand Shailani, Mr. Satish Kumar
Tripathi, Mr. N.K. Sahoo, Mr. R.N.Singh, Mr. M.R. Singh, Mr.
Ramesh K. Mishra, Mr. Surender Pandit, Mr. Navjot Kumar,
Mr. Mahendra Singh, Mr.Sunder Lal Juneja, Mr. Pranesh, Mr.
B.B. Bhatia, Mr. Navjot Kumar and Mr. Satish Chand Gupta,
Mr. Pranesh, Mr. Sahil Kapoor, Ms. S. Fatima, Mr. Jagdeep Kr.
Sharma, Ms. Rani Chhabra, Ms. Rupinder Kaur, Ms. Ferida
Satarawala, Mr. R.N. Singh, Mr. Vikas Batra, Mr. V.P. Rana
and Mr. Navjot Kumar, Advocates for the petitioners.
Ms. Madhu Tewatia, Ms. Sidhi Arora, Mr. Vinod Kumar,
Mr.Arjun Pant, Mr. Ashutosh Lohia and Mr. Vinod Wadhwa,
Advocates for the respondent/NDMC.
Mr. Najmi Waziri, Standing Counsel, Mr. Bhupesh Narula, Mr.
Sanjay Sahay, Ms. Farida Satarwala Chopra, Mr. Sachin Datta,
Mr. Abhimanyu Kumar and Ms. Rachna Saxena, Advocates for
the respondent/GNCTD.
Ms. Navratan Chaudhary, Mr. H.S. Sachdeva, Mr. D.
W.P.(C) 4743/2011, 5254/2011 & connected matters Page 2 of 28
Rajeshwar Rao, Mr. Vikram Aggarwal and Mr. Shariq
Mohammad, Advocates for the respondent/Delhi Police.
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may Yes
be allowed to see the Judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
HIMA KOHLI, J.
1. This common judgment shall dispose of the petitions filed by the
petitioners/vendors as the issues raised in these writ petitions are
common. For the sake of convenience, facts of W.P.(C) 4743/2011 are
taken note of.
2. The focus of the lengthy arguments addressed by both sides
revolves around an order dated 15.07.2011 passed by the Supreme Court
on some miscellaneous applications presented in W.P.(C) 1699/1987
entitled Gainda Ram & Ors. vs. NDMC & Ors., which matter was decided
on 08.10.2010 by issuing exhaustive directions. Before proceeding to
deal with the respective arguments addressed by the learned counsels for
the petitioners/vendors and the respondent/NDMC, it would be
appropriate to set out the aforesaid order dated 15.07.2011, which is the
bone of contention and is reproduced hereinbelow:-
"Heard learned counsel for the applicants and perused
the record.
Since judgment of this Court has so far not been
implemented, inasmuch as appropriate legislation has
not been enacted by the competent legislature, we
direct the parties to maintain the status quo as it is
obtaining today."
3. It was the submission of the learned counsel for the
respondent/NDMC that the aforesaid order issued by the Supreme Court,
calling upon the parties to maintain status quo as obtaining on
15.07.2011, can only be interpreted to mean that the extensive directions
issued earlier, on 08.10.2010, in the case of Gainda Ram (supra) reported
as (2010) 10 SCC 715 shall continue to remain in operation, including
the adjudicatory mechanism provided for by the NDMC in the scheme
presented by it before the Supreme Court and approved in the said
judgment, till the appropriate government enacts a law for regulating
urban street hawkers and street vendors. It was stated that simply
because the legislature has not enacted a law in this regard on or before
30.06.2011, as directed in the aforesaid judgment, it cannot be
contended by the petitioners/vendors that there exists a vacuum and the
said vacuum can no longer be filled up by continuing to regulate the
vending activities in the NDMC jurisdiction in the manner as set out in the
aforesaid judgment.
4. To give a brief background of the dispute, learned counsel for the
respondent/NDMC walked this Court through some prominent decisions of
the Supreme Court rendered from time to time, which relate to pavement
squatters/hawkers, starting from the decision in the case of Sodan Singh
vs. NDMC & Ors. reported as (1998) 2 SCC 727, the interim order dated
03.03.2006 passed by the Supreme Court in W.P.(C) 1699/1987
entitled Sudhir Madan & Ors. vs. MCD, the final judgment in the case of
Sudhir Madan (supra) reported as (2009) 17 SCC 597 and lastly, the
judgment dated 08.10.2010 passed in the case of Gainda Ram (supra).
5. Learned counsel for the respondent/NDMC vehemently opposed the
prayer of the petitioners/vendors for grant of interim orders restraining
the respondent/NDMC from removing them from the sites occupied by
them till the enactment of an appropriate legislation, in terms of the
directions issued by the Supreme Court in the case of Gainda Ram
(supra). She particularly referred to the observations made by the
Supreme Court in paras 40 and 41 of the judgment in the case of Sodan
Singh (supra), which dealt with the immediate eviction of unauthorized
squatters/hawkers and laid emphasis on the fact that in the said case, the
Supreme Court had directed removal of unauthorized squatters/hawkers
without awaiting final allotment of sites to be allotted to eligible claimants
at the places recommended by the Thareja Committee or suggested by
the NDMC.
6. Again, in the interim order dated 03.03.2006 passed in Sudhir
Madan‟s case (supra), the following observation made by the Supreme
Court was highlighted by the counsel for the respondent/NDMC:-
"While we undertake this exercise, we direct the
Authorities to see to it that those persons, who are
carrying on hawking activities or who are squatting on
public land without any authority, even in accordance
with the present day scheme in force, are removed
forthwith. This includes unauthorized hawking,
squatting on public streets, footpaths and public parks,
including playground. We direct the Delhi Administration
to take steps immediately in collaboration with MCD and
NDMC with necessary assistance from Delhi Police to
clear the roads, streets, footpaths, parks etc. by
unauthorized occupants/squatters/hawkers."
7. As to the judgment dated 17.05.2007 rendered in the case of
Sudhir Madan (supra), much emphasis was laid by the counsel for the
respondent/NDMC on paras 28 to 30 and 35, which are reproduced
hereinbelow for ready reference:-
"28. The New Delhi Municipal Committee has also
submitted its Scheme. We have considered the Scheme
submitted before us. The area which falls under NDMC
does not create problems such as those in the areas
under MCD. However, in the said Scheme reference has
been made to persons who do not have permission
under Section 225 or licence under Section 330 of the
NDMC Act, 1994 but who are unauthorisedly continuing
to carry on business as hawkers/street vendors. They
have been described as those who are "tolerated" in the
NDMC area. We fail to understand why any person who
violates the law should be tolerated. Either they should
be compelled to obey the law or the law may be suitably
amended, if it is found to create undue hardship. The
problems need to be addressed by the legislature or the
rulemaking authority. We, therefore, observe that if it
is felt that the persons who fall in this category require
special protection, the Act may be suitably amended to
cover their cases or else the number of such illegal
squatters may increase from time to time.
29. There has been no serious objection to the Scheme
submitted by NDMC which is a comprehensive scheme.
Certain directions have, however, been sought for from
this Court. We approve the Scheme submitted by
NDMC.
30. It is submitted before us that the Schemes which
have been approved by this Court must be subject to
any Act or rules that may be framed in consonance with
the National Policy on Urban Street Vendors. It goes
without saying that we have approved the Schemes as
framed by MCD and NDMC. If the legislature intervenes
and frames another scheme or regulations governing
such Schemes, that will certainly supersede the
Schemes prepared by MCD and NDMC. It is well settled
that any administrative action is always subject to law
that may be framed by the competent legislature.
35. Subject to the aforesaid modifications/changes in
the Schemes submitted by MCD and NDMC, the same
are approved. The said authorities shall now take
appropriate steps to implement the Scheme forthwith.
In case of any difficulty faced by them in implementing
the schemes, they shall have the liberty to apply to this
Court."
8. Lastly, in the recent judgment in the case of Gainda Ram (supra),
learned counsel for the respondent/NDMC specifically relied upon paras
30, 32, 50 to 66 to state that the Supreme Court was conscious of the
fact that a structured regulation and legislation is urgently required to
control and regulate the fundamental right of hawking. She also pointed
out that the three tier disputes redressal mechanism set out in the
affidavit filed by the then Chairperson of the NDMC was taken note of by
the Supreme Court in para 72 of the aforesaid judgment and in para 73, it
was then observed as below:-
"73. In paragraph 12 of the affidavit it has been stated
that there shall be an Appellate Authority which shall
attend to the redressal of grievances of squatters,
hawkers, traders, residents or any other person by
hearing appeals against the decision of the Vending
Committee (Main). Paragraph 12 of that affidavit is set
out below:-
There shall be an Appellate Authority. On the
forwarding of petitions received by the
Chairperson, this Authority shall attend to
redressal of grievances of squatters, hawkers,
traders, residents or any other person. The
Authority shall also hear appeals against the
decision of Vending Committee (Main). Decisions
of this Authority unless challenged before a Higher
Forum or in any Competent Court, shall be final.
This Authority shall be initially headed by a person
appointed by the Chairperson having at least 10
years legal or judicial background. There can be
more than one member in this Authority."
9. After making the aforesaid observations, in paras 74 to 76 of the
judgment, the Supreme Court went on to observe as below:-
"74. In the said affidavit, which was affirmed before
this Court on 24th August, 2010 it has been stated that
NDMC shall comply with the orders which would be
passed by the adjudicatory mechanism contemplated in
the scheme and which has been approved by this Court
for the NDMC area, unless such orders are made subject
matter of challenge before a higher forum or in any
other competent Court.
75. In view of such schemes, the hawkers, squatters
and vendors must abide by the Dispute Redressal
scheme mentioned above. There should not be any
direct approach to this Court by way of fresh petition or
IAs, bypassing the Dispute Redressal Mechanism
provided in the scheme.
76. However, before 30th June, 2011, the appropriate
Government is to enact a law on the basis of the Bill
mentioned above or on the basis of any amendment
thereof so that the hawkers may precisely know the
contours of their rights."
10. It was thus sought to be contended on behalf of the
respondent/NDMC that there can be no vacuum as far as regulation of
trade of street hawkers/vendors in the NDMC jurisdiction is concerned and
the failure on the part of the legislature to abide by the timeline set out
by the Supreme Court in the case of Gainda Ram (supra), by putting in
place a statute on or before 30.06.2011, cannot be interpreted by the
petitioners/vendors to mean that they can continue their trade
unhindered at any place of their choice in the NDMC jurisdiction, in an
unregulated manner and without any obstruction or objection from the
NDMC.
11. Learned counsel for the respondent/NDMC particularly referred to
paras 74 and 75 of the aforesaid judgment to state that the dispute
redressal scheme, noticed by the Supreme Court in para 75 was the one
that was legally functioning in NDMC jurisdiction and which was taken
note of by the Court in the preceding para 74. In other words, she stated
that the scheme as set out in the affidavit dated 24.08.2010, filed by the
then Chairperson of NDMC before the Supreme Court in Gainda Ram‟s
case (supra), was the one which was finally approved by the Supreme
Court. She further submitted that assuming, without admitting, that the
dispute redressal scheme set out by the NDMC had lapsed on 30.6.2011,
as claimed by the petitioners, then the NDMC Act provides an adequate
fallback to ensure orderly management of vendors in the area. Specific
reference was made in this regard to the provisions contained in Sections
221, 224, 225 and 226 of the said Act.
12. It was further argued by the counsel for the respondent/NDMC that
the application filed by the NDMC before the Supreme Court in July 2011
praying inter alia for extension of time to regulate hawkers/squatters in
the NDMC area, as per the scheme mentioned in the judgment in Gainda
Ram‟s case (supra), till the enactment of a law by the legislature in that
regard, had not yet been finally disposed of by the Supreme Court at the
time of passing of the status quo order dated 15.07.2011 and similarly,
the other application filed by one of the hawkers/vendors praying inter
alia for restraining the respondent/NDMC from granting Tehbazari rights
to the winners of the lucky draw of lots for allotment, which was to be
held on 12.05.2011 or any date thereafter, was also pending
consideration before the Supreme Court. Hence, no finality could be
attached to the order dated 15.7.2011 which can only be considered an
interim measure till the final disposal of the aforesaid applications or the
enactment of a legislation.
13. On merits, learned counsel for the respondent/NDMC referred to the
affidavit dated 01.08.2011 filed by the Director (Enforcement), NDMC,
wherein it was stated that pursuant to the public notice issued by the
NDMC inviting applications under the NDMC Urban Street Vending
Scheme in the year 2007, the respondent/NDMC had received 4367
applications. The documents required by the applicants for registration
under the Scheme included a proof of age, documentary proof/affidavit
for the purpose of annual income, proof of residence, proof in support of
special categories like handicapped, Kashmiri migrants etc. and proof of
squatting in the NDMC area, if any. In para 4 of the aforesaid affidavit,
the following criteria approved/adopted by the Vending Committee to
shortlist the eligible applicants is set out:-
"4. That the criteria approved/adopted by the Vending
Committee to shortlist the eligible applicants is as
under:-
(i) The applicants should be resident of Delhi with his
name registered in electoral rolls as per abstract of
photo E-Roll or ERO certificate.
(ii) The applicant should be a major, viz. with over 18
years of age as per valid birth certificate or age
certificate or school certificate etc.
(iii) The applicant should be a needy as per income
records of DC (Revenue) or as vulnerability records of
Government of NCT of Delhi (Samajik Suvidha Sangam:
vulnerable and most vulnerable category).
(iv) The applicant should be registered as per NDMC
Street Vendors Scheme. The policy verification of the
applicant should be available.
(v) The applicant or his dependent family member
should not be employed or should not have any other
tehbazari/vending or any other business premises in
Delhi as per record verification of NDMC/MCD.
(vi) Preference will be given to applicants who are
physically handicapped or widows or senior citizens
above 60 years or Kashmiri migrants or SC/ST
(necessary certificate to be submitted and relaxation
may be given in the above criteria)."
14. As per the respondent/NDMC, the category-wise list of eligible
shortlisted applicants in terms of the aforesaid criteria totalled to 3878
applicants. The affidavit dated 01.08.2011 states that the
respondent/NDMC has identified 183 new spaces, in addition to the 203
remaining spaces identified by the Thareja Committee in the NDMC area,
which were available for allotment, thus taking the total number of
available spaces to 386. It was further stated that due to factors like de-
listing of the Parliament Street on security grounds, construction of
flyovers and Metro Stations at various locations in the NDMC jurisdiction,
the number of authorized tehbazari squatters has changed from 348 to
404 in number. The number of applicants, who the respondent/NDMC
claims, are vending unauthorisedly at Connaught Place, Sarojini Nagar,
Parliament Street and Janpath areas and in whose favour, status quo
orders are operating, is stated to be 323 in number. The affidavit asserts
that simply because the names of the petitioners, who are registered with
the NDMC, figure in the eligibility list drawn by the respondent/NDMC,
cannot be treated as proof of their regularly vending in the NDMC area
and nor does it confer on them any enforceable vested right to ensure a
vending space for them in the NDMC area, which is directly dependent on
the number of spaces available. Thus, it was contended that neither the
possession of any number of challans, nor the absence thereof can make
a difference, for the reason that challans cannot form the basis for the
petitioners to claim any vested legal right to squat at a given space.
15. Counsel for the respondent/NDMC asserted that the present
petitions are not maintainable inasmuch as the petitioners have an
equally efficacious alternate remedy of approaching the appellate
authority constituted by the Chairperson, NDMC, for redressal of their
grievances and failure on their part to have approached the Vending
Committee is not on account of the fact that the said Committee including
the appellate authority is not functioning, but because they have found it
more convenient to bypass the aforesaid forum and approach this Court
directly, which is not permissible. She stated that extensive measures
have been taken by the respondent/NDMC to constitute the adjudicatory
mechanism by way of a three tier system in the following manner:-
1. Vending Sub-Committee (Site of Spaces),
2. Vending Sub-Committee (Heath and Hygiene) and
3. Vending Sub-Committee (Enforcement).
16. She stated that the creation of the aforesaid three Vending Sub-
Committees, Vending Committee (Main), as also of the appellate authority
which was constituted to redress the grievances of the squatters,
hawkers, traders, residents or any other person against the decision of
the Vending Committee (Main), was placed before the Supreme Court for
consideration and the said three tier adjudicatory mechanism was duly
approved in the judgment of Gainda Ram (supra).
17. Per contra, learned counsels for the petitioners/vendors, who
appeared on different dates, vehemently opposed the aforesaid stand
taken by the respondent/NDMC and asserted that the scheme floated by
the respondent/NDMC for regulating vending activities in its jurisdiction
had lapsed on 30.06.2011 in the absence of the enactment of a legislation
as per directions of the Supreme Court in the case of Gainda Ram (supra)
and as on date, there is no scheme in existence. It was canvassed that
the implication of the aforesaid order of status quo passed by the
Supreme Court on 15.07.2011 can only mean that irrespective of the fact
whether the squatting is legal or illegal, the same be permitted to
continue on an „as is where is‟ basis, and such status quo is to be
maintained by all the parties till a law is framed by the legislature.
18. Mr. B.B. Sawhney, Sr. Advocate appearing for the
petitioners/vendors submitted that in the case of Gainda Ram (supra), the
Supreme Court had directed that the appropriate government must enact
a law on or before 30.06.2011 so that the hawkers may precisely know
the contours of their rights, hence the dispute redressal mechanism
provided for in the scheme mentioned in the aforesaid judgment could
operate only upto 30.06.2011 and thereafter, the said scheme would
automatically stand lapsed. He stated that no other interpretation can be
given to the order dated 15.07.2011, directing maintenance of status quo,
in view of the qualifying words, "as it is obtaining today". He argued that
if the scheme was continuing to operate, as claimed by the learned
counsel for the respondent/NDMC, then there was no good reason for the
respondent/NDMC to have refrained from holding a draw of lots, which
was slated for the same day, i.e., 15.07.2011, and that fact of the matter
is that even the respondent/NDMC had understood the status quo order
to mean that there is no scheme in place after 30.6.2011, for the reason
that in para 68 of the aforesaid judgment in the case of Gainda Ram
(supra), all the writ petitions and the interim applications filed before the
Supreme Court were disposed of with clear and specific directions that the
problem of hawking and street vending could be regulated by the
schemes framed by the NDMC and MCD only upto 30.06.2011 and not
thereafter. It was asserted on behalf of the petitioners/vendors that as
on date, the directions of the Supreme Court that status quo is to be
maintained by the parties can only be given one interpretation, which is
that till a law is ultimately enacted by the Parliament, irrespective of their
legal status, all the petitioners/vendors would be permitted to continue
squatting/hawking at the sites that have been occupied by them.
19. Insofar as the composition of the dispute redressal mechanism is
concerned, learned Senior Advocate for the petitioners submitted that
contrary to the understanding of the respondent/NDMC, the scheme
reproduced at paras 72 and 73 in the judgment in the case of Gainda Ram
(supra), was not the one which was actually recognized by the Supreme
Court, and rather it is the dispute redressal scheme mentioned in para 75
of the aforesaid judgment i.e., a scheme for urban street vendors for
NDMC area as formulated in the year 2006, which was ultimately
approved by the Supreme Court on 17.05.2007, in the case of Sudhir
Madan (supra), which is the scheme which finds mention specifically in
the following para 74 and is the one approved by the Supreme Court. It
was contended that even otherwise, the National Capital Territory of Delhi
Laws (Special Provisions) Act, 2011 (hereinafter referred to as „Special
Provisions Act') comes to the rescue of the petitioners for the reason
that sub-clause (2) of Section 3 of the Special Provisions Act mandates
maintenance of status quo as on 01.01.2006, notwithstanding any
judgment, decree or order of any court, in respect of encroachment or
unauthorized development. Thus, it was submitted on behalf of the
petitioners/vendors that they were entitled to grant of interim protection
till the enactment of a legislation to regulate hawking/vending activities in
urban streets in Delhi on the basis of the National Policy on Urban Street
Vendors, 2009 framed on 17.06.2009 and the Special Provisions Act.
20. With reference to the Special Provisions Act, learned Senior
Advocate for the petitioners stated that the phrase, "unauthorized
development" used in the definition clause has to be seen in the same
context as the one in which the phrase "encroachment" has been defined,
wherein it is mentioned that putting up of temporary, semi-temporary or
permanent structure for residential use or commercial use or any other
use, and the placement of goods on the pavements by the petitioners is
liable to be termed as unauthorized use for maintaining status quo under
the Special Provisions Act. Much emphasis was laid on the averments
made by the respondent/NDMC in its interim application filed before the
Supreme Court in Gainda Ram‟s case (supra) in July 2011, to submit that
the respondent/NDMC itself had stated in the said application that the
scheme had lapsed and therefore, the only interpretation that can be
given to the status quo order passed by the Supreme Court on
15.07.2011 can be that no scheme would exist after 30.06.2011 and
thus, the benefit of the Special Provisions Act ought to be extended to the
petitioners. He submitted that the phrase „street vendors‟ has been
clearly defined under the National Policy on Urban Street Vendors, 2009.
Reliance was placed in the case of Patri Vyapar Mandal Delhi (Regd.) vs.
MCD Town Hall & Ors. reported as (2009) 12 SCC 475 and the
provisions of the Special Provisions Act to submit that even the Supreme
Court had recognized the fact that the Special Provisions Act is the only
Central law governing the field and it would have primacy over other
Statutes and administrative orders. It is thus stated that the provisions
of the NDMC Act cannot be invoked by the respondent/NDMC as the said
Act is not in consonance with Article 96 of the Constitution of India and
furthermore, the Special Provisions Act being valid till the end of
December 2011, no orders in derogation of the provisions of the said Act
can be passed.
21. Mr. S.K. Tripathi, Advocate appearing for some of the
petitioners/vendors sought to embellish the submissions of Mr.Sawhney,
Sr.Advocate and relied on the orders passed in W.P.(C) 1449/2011
entitled Mohd. Ismail vs. NDMC & Ors. to urge that the "Appellate
Authority" constituted under the dispute redressal mechanism for the
NDMC area, has not been functioning, which fact he stated is borne out
from a perusal of the order dated 08.03.2011 passed in the aforesaid
case, wherein the Court took notice of the claim of the petitioner/vendor
therein to the effect that inspite of orders passed by the Appellate
Authority allowing squatting at a particular site, till a final determination
by the Vending Committee as to his eligibility, the respondent/NDMC and
the police were disturbing his activities. In the aforesaid order, the
statement of the counsel for the respondent/NDMC was recorded to the
effect that the appellate authority, whose order was being relied upon by
the petitioner therein, was constituted initially for the MCD areas and later
started functioning for the NDMC areas as well for the reason that at that
time, there was no separate appellate authority for the NDMC areas, but
subsequently, in accordance with the scheme approved by the Supreme
Court, the Chairperson, NDMC had constituted a separate appellate
authority for the NDMC areas. Therefore, the appellate authority
appointed earlier had ceased to have jurisdiction qua the NDMC areas. It
was thus contended on behalf of the petitioners/vendors that the
aforesaid order clearly indicates that the appellate authority in the NDMC
areas is not functioning.
22. Reliance was also placed on the minutes of the meeting of the
Vending Committee dated 11.03.2010, to claim that if the fact of whether
there was actual squatting/vending was verified by the Committee and if
the names of the petitioners/vendors figured in the eligibility list prepared
by the respondent/NDMC for holding the draw of lots, then it did not lie in
the mouth of the respondent/NDMC to claim that the petitioners, who had
been verified and found to be eligible, were not entitled to squat at
various sites in the NDMC area after 30.06.2011.
23. In rebuttal, counsel for the respondent/NDMC disputed the
contentions of the petitioners/vendors and while reiterating her earlier
submissions, asserted that the petitioners did not have any legally
enforceable right, created on the basis of the eligibility list drawn by
NDMC, for claiming grant of interim orders in their favour. She again
referred to paras 68, 69, 75, 76 and 78 of the judgment in the case of
Gainda Ram (supra), to emphasize that when the aforesaid paras are
read collectively, it is clear that the petitioners cannot claim an
entitlement to any interim orders as sought by them in the present
proceedings. She further stated that even otherwise, the Special
Provisions Act relied upon by the petitioners has duly recognized the
schemes prepared by the local authorities in the National Capital Territory
of Delhi for regulation of urban street vendors. To substantiate the said
submission, she drew the attention of this Court to the preamble of the
aforesaid Act, which mentions the fact that all the schemes prepared by
the local authorities in the National Capital Territory of Delhi, for
regulation of urban street vendors in accordance with the National Policy
on Urban Street Vendors, 2009 and the Master Plan for Delhi 2021, have
been implemented and further that more time is required for proper
implementation of the schemes regarding hawkers and urban street
vendors.
24. A specific reference was made by the learned counsel for the
respondent/NDMC to Section 2(1)(c) of the Special Provisions Act, which
defines the phrase "encroachment" to claim that it does not cover the
petitioners herein, who are squatters. Further reference was made to the
provision of Section 3 of the Special Provisions Act, which contains a non
obstante clause, to state that status quo with regard to the encroachment
or unauthorized development as on 01.01.2006, mentioned in the said
provision, was in the context of the definition of the phrases
"encroachment" and "unauthorized development" set out in the definition
clause at Sections 2(1)(c) and 2(1)(i) respectively of the Special
Provisions Act and thus, the petitioners/vendors did not qualify under the
aforesaid enactment for claiming protection as none of the ingredients set
out in the provisions of the aforesaid enactment are found to exist in their
case. It was submitted that the Special Provisions Act, which came into
effect in the year 2007 and has been extended from time to time and
lastly, till December 2011, does not give permission to persons to re-start
any activity once they have been removed by the civic authority and
similarly, the Scheme of 2009 does not entitle the registrants to squat
unless they have been allotted a specific site. In support of the aforesaid
submission, reliance was place on the judgment in the case of MCD vs.
Gurnam Kaur reported as (1989) 1 SCC 101. For the purpose of
interpreting the meaning of the phrase, "structure", reference was made
to the judgment of the Supreme Court in the case of Municipal
Corporation of Greater Bombay & Ors. vs. Indian Oil Corporation Ltd.
reported as AIR 1991 SC 686. For the purpose of understanding the
expression, „status quo‟, reference was made to the judgment in the case
of Messrs Bharat Coking Coal Limited vs. State of Bihar & Ors. reported as
1987 (Supp) SCC 394 to submit that in ordinary legal connotation, the
term „status quo' implies the existing state of things at any given point of
time.
25. As for the National Policy on Urban Street Vendors, counsel for the
respondent/NDMC stated that both, the 2004 policy and the 2009 policy,
find mention in the decision of the Supreme Court in the case of Gainda
Ram (supra) and it was only after taking into consideration the said
policies, did the Court directed the institutionalization of urban street
vending through legislation. It was further stated that at the time of
delivering the judgment dated 8.10.2010, the Supreme Court took notice
of the NCT of Delhi Laws (Special Provisions) Act, 2009, which was valid
upto 30.12.2010, apart from noticing the Model Street Vendors
(Protection of Livelihood and Regulation of Street Vending) Bill, 2009
introduced by the Government of India, Ministry of Housing & Urban
Poverty Alleviation. She stated that nothing new is now being submitted
by the petitioners/vendors herein, for the present petitions to be
entertained for any purpose whatsoever and all the grievances raised by
the petitioners can easily be addressed before the Vending
Committee/appellate authority under the scheme relating to urban street
vending in the NDMC area, which fora continue to remain functional, even
after 30.6.2011.
26. This Court has heard these matters at length since 17.8.2011, on
different dates. Various counsels for the petitioners/vendors and the
Standing Counsel for the respondent/NDMC had addressed the Court.
Their respective arguments have been taken note of. Both sides have
made strenuous efforts to explain what the status quo order dated
15.7.2011 passed by the Supreme Court in the case of Gainda
Ram(supra) implies. The leitmotif of the arguments addressed on behalf
of the petitioners/vendors is that the status quo order read with the
qualifying words, "as it is obtaining today", suffixed to the order, can only
be read to imply that as on date, i.e., 15.7.2011, there was no scheme
operational in the NDMC areas to regulate vending activities and till a law
is ultimately enacted by the legislature, all the petitioners, irrespective of
their legal status, can continue squatting/hawking at different sites that
have been occupied by them. It is also asserted that in the teeth of the
status quo orders passed by the Supreme Court, the respondent/NDMC in
collusion with the police authorities, is threatening to illegally remove the
petitioners/vendors from different sites, which is detrimental, adverse,
harassing and belligerent to those, who have been found eligible by the
respondent/NDMC for being allotted specific tehbazari spaces within the
NDMC jurisdiction, but are being threatened due to lack of further action
in this regard which is pending at the end of the respondent/NDMC. The
second limb of submissions made by the learned counsels for the
petitioners/vendors was that the Special Provisions Act would additionally
come to the rescue of the petitioners/vendors, which also requires
maintenance of status quo as existing on 01.10.2006, till the end of
December, 2011.
27. On the other hand, the main thrust of the arguments addressed by
the counsel for the respondent/NDMC was that as the legislature has
failed to enact an appropriate legislation in terms of the decision of the
Supreme Court in the case of Gainda Ram(supra), the subsequent order
dated 15.7.2011 directing parties to maintain the status quo as it is
obtaining on the said date can only imply that the state of affairs as
existing on date are not to be disturbed, until the rights of the parties can
be finally determined through legislation. It was submitted that while
passing the status quo order on 15.07.2011, the Supreme Court was
conscious of the fact that the Parliament had yet to enact a
comprehensive legislation to regulate urban street vending and in such
circumstances, it goes without saying that it was the intent of the Court
that the entire dispute redressal mechanism as recognized in the case of
Gainda Ram(supra) would continue to remain in operation, so as to
regulate the urban street vending in the NDMC area, till the legislation in
that regard is enacted. Further, it was stressed that the Special
Provisions Act did not provide any protective umbrella to the petitioners,
whose squatting activities neither fell under the definition of
"encroachment", nor under "unauthorized development". It was further
asserted that even otherwise pending an appropriate legislation, the
NDMC Act was available as a fall back option and the relevant provisions
in the said enactment would continue to regulate street vending activity in
the NDMC area and the petitioners/vendors could not claim a vested right
to squat at any site of their own.
28. From the above, it is apparent that arguments and counter
arguments have been raised by both sides on their respective versions of
the meaning and the effect of the status quo order dated 15.7.2011
passed by the Supreme Court. It is also very apparent, that the meaning
sought to be attributed by both sides as to the implication of the said
status quo order, is diametrically opposed to each other. Not only this,
both sides are at a tangent on the factum of the pendency or otherwise of
the interim applications filed before the Supreme Court by both, the
applicants/vendors and the respondent/NDMC, for clarifications, on which
the aforesaid order came to be passed as it is the stand of the
respondent/NDMC that the aforesaid applications were not disposed of
while passing the order dated 15.7.2011. The parties are poles apart on
the question of import of the status quo order, and the effect of the
observations made by the Supreme Court in the case of Gainda
Ram(supra) as regards the approval of NDMC scheme. They are also at
loggerheads on the composition of the adjudicatory mechanism in the
NDMC jurisdiction and the manner of its functioning, as also the identity
of the scheme which is validly operating in the NDMC areas for regulating
urban street vending, which had all been subject matter of consideration
before the Supreme Court in the aforesaid case. The other issues
agitated by the parties, starting from the interpretation of the various
observations made by the Supreme Court in the aforesaid judgment, to
the formulation of the scheme as approved by the Supreme Court in the
case of Sudhir Madan (supra), to the composition of the disputes
redressal mechanism and its validity as also the meaning of the status
quo order, are all in a turmoil as both the parties have stoutly defended
their respective stands which are completely at variance with each other.
The only common ground shared by the parties is the factum of passing
of the recent judgment dated 08.10.2010 in the case of Gainda
Ram(supra) and the subsequent status quo order dated 15.7.2011 passed
by the Supreme Court.
29. The fountainhead of the dispute in the present cases therefore
remains the status quo order dated 15.7.2011 passed by the Supreme
Court. The issue which is sought to be agitated before this Court is that
having regard to the status quo order, whether a stay order ought to be
granted by this Court in favour of the petitioners/vendors as prayed for by
them, irrespective of their legal status, thus forbidding the
respondent/NDMC from threatening and/or removing them from the
different sites occupied by them in the NDMC areas. In other words, this
Court is being called upon to examine the meaning, scope and effect of
the status quo order dated 15.07.2011. On the question of how to
ascertain the implication of a status quo order passed by a court, in the
case of Messrs Bharat Coking Coal Limited (supra), it was observed by the
Supreme Court that the expression, „status quo‟ is undoubtedly a term of
ambiguity and at times, gives rise to doubt and difficulty and in case any
party has any doubt on the meaning and the effect of the status quo
order, the proper course for such a party would be to approach the Court
that had passed the status quo order, to seek clarifications.
30. In the case at hand, while seeking to ride the wave of the aforesaid
status quo order, the parties have chosen to overlook one important
factor, which is that a status quo order operates on both sides. The
Supreme Court has passed orders requiring both sides to maintain status
quo. Once such an order of the Supreme Court is on record, the same
not only binds all the parties to the adjudication, and all the parties, civil
or judicial who are required to act in accordance with the said orders, but
it equally binds the High Court from interfering with such an order, as the
said order has been passed in litigations before the highest Court of the
land.
31. The orders of the Supreme Court are on record. The status quo
order is a clear signal to the High Court as well, to avoid granting any
order, including an interim order, when the Supreme Court has directed
for status quo to be maintained. In such circumstances, if this Court was
to grant a stay order in favour of the petitioners/vendors arrayed before
it, it would be tantamount to negating the orders of the Supreme Court,
which require the parties to maintain status quo pending enactment of
appropriate legislation. If either of the parties were unclear about the
interpretation of the status quo order, it was for them to have applied to
the Supreme Court for clarifications thereof. Additionally, the reliance
placed by the petitioners/vendors on the Special Provisions Act seeking
interim legal sanctity to the placement of goods by them on the
pavements, by terming it as encroachment/unauthorized use, as
recognized under the said Act and their contention that the Supreme
Court had recognized the fact that the Special Provisions Act is the only
Central law having primacy over other Statutes, are also matters that the
petitioners/vendors ought to have placed before the Supreme Court while
seeking clarifications of the status quo order. It would therefore be
advisable for the petitioners/vendors as also the respondent/NDMC to
approach the Supreme Court and make their submissions there as
regards their grievances. However, as both parties insisted that their
arguments be taken note of and their submissions be placed on record,
some pains have been taken to do the needful.
32. In view of the aforesaid facts and circumstances, this Court is of the
opinion that it will not be appropriate for it to grant stay orders in the face
of the status quo order dated 15.07.2011 passed by the Supreme Court.
It is reiterated that any such order shall be an anti-thesis to the orders of
the Supreme Court, which must be respected both, in letter and spirit. In
such circumstances, the present petitions are disposed of by declining
grant of any interim orders to the petitioners. However, liberty is granted
to both the parties to apply to the Supreme Court for a clarification of the
status quo order dated 15.07.2011 passed in the case of Gainda Ram
(supra). The parties are left to bear their own costs.
(HIMA KOHLI)
OCTOER 24th, 2011 JUDGE
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