Delhi High Court
Gomti Prasad And Ors. vs Mcd And Ors. on 10 February, 2012
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2198/2011
Decided on: 10.02.2012
IN THE MATTER OF
GOMTI PRASAD AND ORS. ..... Petitioners
Through: Mr. M.M. Kashyap, Advocate
versus
MCD AND ORS. ..... Respondents
Through: Ms. Mansi Gupta, Advocate for R-1/MCD.
Ms. Shobhana Takiar, Advocate for R-2/DDA.
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J. (ORAL)
1. The present petition is filed by eight petitioners praying inter alia
for directions to the respondents, MCD, DDA and Delhi Police to permit them
to carry on their vending activities from the sites at Nehru Place Complex, till
verification of their claims or till alternate allotments are made in their
favour.
2. On 01.04.2011, when the matter came up for admission, counsel
for respondent No.2/DDA, who had appeared on advance notice, had stated
that Nehru Place is a No Hawking Zone and the petitioners cannot place
reliance on the judgment of a Division Bench of this Court dated 17.04.2009
in LPA No.766/2008 entitled Manushi Sangathan, Delhi vs. Delhi
Development Authority or that of the Single Judge dated 02.06.2010 in
W.P.(C) 2545/2010 entitled Virender & Ors. vs. DDA. It was also noticed
that the eligibility of the petitioners herein had not been determined as yet.
Thereafter, counter affidavits were sought from the respondents. As per the
first affidavit filed by respondent No.1/MCD, it was stated that none of the
petitioners were recognized Tehbazari holders and they were not paying any
Tehbazari fee. It was further averred that the receipts enclosed with the
writ petition were merely festival receipts issued for 1-3 days during the
festive season and the same cannot create any Tehbazari right in favour of
any of the petitioners. As regards petitioner No.1, respondent No.1/MCD
had stated that even as per the said petitioner, his case had already been
rejected by the MCD. In respect of the remaining petitioners No.2 to 8, it
was asserted that they had not taken any steps to approach respondent
No.1/MCD for allotment of Tehbazari sites.
3. In view of the aforesaid averment made by respondent
No.1/MCD in its affidavit which was refuted by the counsel for the petitioners
who asserted that the remaining petitioners No.2 to 8 had submitted their
applications before the Ward Vending Committee, MCD which were pending
disposal, counsel for the petitioners was granted permission to file an
additional affidavit furnishing the details of the dates on which such
applications were submitted by petitioners No.2 to 8 before the Ward
Vending Committee, MCD alongwith other relevant details.
4. Aggrieved by the aforesaid order, the petitioners had preferred
an intra-court appeal before the Division Bench, registered as LPA
No.880/2011. In its order dated 24.10.2011, the Division Bench had noted
that time had been granted to the appellants/petitioners herein to file an
additional affidavit at their own instance and therefore, the only course open
to them was to file the affidavit. In view of the submission made by the
counsel for the appellants (petitioners herein) that they would be filing the
affidavit in the present proceedings, the aforesaid appeal was dismissed as
withdrawn.
5. On 29.11.2011, the additional affidavit filed by petitioner No.2
was examined. The statement of the counsel for the petitioners was also
recorded to the effect that the petitioners did not have any other document
in their power and possession and the receipts enclosed with the additional
affidavit were an acknowledgement of the fact that applications had been
submitted by petitioners No.2 to 8 to the respondent No.1/MCD. In view of
the aforesaid affidavit and the submission made on behalf of the petitioners
No.2 to 8, counsel for respondent No.1/MCD was directed to verify as to
whether the photocopies of the receipts submitted by the petitioners could
be linked with their applications to establish as to whether their applications
are pending before the Ward Vending Committee of the MCD.
6. Now an additional affidavit has been filed by respondent
No.1/MCD confirming inter alia that petitioners No.2 to 8 had applied under
the National Vending Policy 2007. It is further averred that approximately
12000 applications have been received under the aforesaid policy and since
no identified sites are available in the Central Zone, MCD under the Scheme,
all the applicants have been waitlisted. As regards the Central Zone,
respondent No.1/MCD states that 413 sites were identified in 29 municipal
wards in the Central Zone and out of these 413 sites, only 80 sites were
approved by the police authorities for allotment of Tehbazari. Subsequently,
832 sites identified and recommended by the MCD for clearance to be given
by the police authorities but, all the said sites were rejected in totality by the
police authorities. It is lastly stated that 349 authorised Tehbazari holders,
who had been allotted Tehbazari sites in different areas in Central Zone have
been removed by MCD in the wake of the development works that were
being executed by the government agencies, including Commonwealth
Games 2010 and that these 349 Tehbazari holders are under category-I and
are entitled to be adjusted in the first instance. Thus, it is submitted by the
counsel for respondent No.1/MCD that as the petitioners are waitlisted
candidates before the Ward Vending Committee, they have to wait for their
turn to mature alongwith other similarly placed applicants under the
Scheme. It is also pointed out that Nehru Place District Centre had been
transferred by MCD to the DDA on 04.06.2002 and ever since then, DDA has
been managing the said area.
7. In view of the position as has emerged above, this Court is not
inclined to grant any order in favour of the petitioners as claimed by them as
it would jeopardize the interest of all other waitlisted candidates, who are
patiently awaiting their turn for allotment of a vending site in terms of the
directions of the Supreme Court. Even as per respondent No.1/MCD,
authorized Tehbazari holders falling under category-I, who are to be given
first priority, are also waiting allotment of vending sites in the MCD
jurisdiction. The petitioners cannot claim priority over them and nor can
they take advantage of the decision of the Division Bench in the case of
Manushi Sangathan (supra) or that of the Single Judge in the case of
Virender & Ors. (supra), as much water has flown under the bridge ever
since then. Further, it may be relevant to note that a status quo order dated
15.07.2011 had been passed by the Supreme Court on some miscellaneous
applications presented by parties in W.P.(C) 1699/1987 entitled Gainda
Ram & Ors. vs. NDMC & Ors., which was examined by this Court and it
declined to pass any interim orders in a batch of matters relating to vendors,
who had sought identical relief as the petitioners herein. A detailed judgment
dated 24.10.2011 in this regard has already been delivered by this Court in
the said batch of matters, lead matter being W.P.(C) 4743/2011 entitled
Shiv Nath Choudhary vs. NDMC & Ors., holding inter alia that it would not be
appropriate for the Court to grant stay orders in the face of the status quo
order dated 15.07.2011 passed by the Supreme Court. It was further
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. The
aforesaid decision was challenged by the petitioners therein in an intra court
appeal registered as LPA No.998/2011 and connected matters and has
been duly upheld vide order dated 02.02.2012. Aggrieved by the dismissal
order, the parties have approached the Supreme Court. Such an option is
also available to the petitioners herein.
8. This Court is therefore not inclined to entertain the present
petition in respect of any of the petitioners or direct the respondents to grant
them any interim vending sites till completion of verification of their claims.
The petitioners are not differently placed from other waitlisted applicants in
the MCD jurisdiction and have to therefore wait for their turn to mature. The
petition is accordingly disposed of. However, it is clarified that the
petitioners shall be entitled to approach the Ward Vending Committee, MCD
for verifying the status of their pending applications.
Parties are left to bear their own costs.
(HIMA KOHLI)
FEBRUARY 10, 2012 JUDGE
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