Delhi High Court
Akhilesh Kumar & Ors vs New Delhi Municipal Council & Ors on 19 February, 2016
$~42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1415/2016
AKHILESH KUMAR & ORS ..... Petitioners
Through: Ms. Rani Chhabra, Adv.
Versus
NEW DELHI MUNICIPAL COUNCIL & ORS ..... Respondents
Through: Mr. Anil Grover & Mr. Harsh Pichara,
Advs. for NDMC.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 19.02.2016
CMs No.6192-93/2016 (both for exemption)
1. Allowed, subject to just exceptions.
2. The applications are disposed of.
W.P.(C) 1415/2016 & CM No.6191/2016 (for stay)
3. The 160 petitioners claiming to be street vending around the entrances
of underground market 'Palika Bazaar' and on the pavements abutting Regal
and Rivoli Cinema Halls, at Connaught Place, New Delhi have filed this
petition to restrain the respondents no.1 to 4 New Delhi Municipal Council
(NDMC) from acting in contravention of the provisions of the Street
Vendors (Protection of Livelihood and Regulation of Street Vending) Act,
2014.
4. The counsel for the petitioners states that in an action taken by the
respondents NDMC on 12th February, 2016, all the petitioners have been
removed from the sites from where they had been earlier street vending,
without following the due process of law and without even any notice and in
a swift action.
5. This Court in Brahm Pal Vs. New Delhi Municipal Council
MANU/DE/1942/2015 and in Rajnesh Vs. South Delhi Municipal
Corporation MANU/DE/2656/2015 and in a large number of similar
petitions coming before this Court has taken a consistent stand that no
protection, as is sought in this petition, can be granted except to those street
vendors who were licenced under the regime prevalent prior to the coming
into force of the Street Vendors Act.
6. The counsel for the petitioners fairly admits that none of the 160
petitioners were licensed at any time though it is stated that they have been
squatting and street vending on the pavements aforesaid for the last several
years and have been earning their livelihood therefrom. In support thereof
attention is drawn to a list purported to have been prepared by the
Enforcement Department of the respondents NDMC and in which list, it is
stated, the names of all the 160 petitioners appears.
7. The counsel for the respondents NDMC appearing on advance notice
has controverted and disputed the said list. It is also pointed out that as per
the said list also, the checking was in pursuance to the inspections in the
month of March and September, 2015 and it is contended that the petitioners
for this reason also cannot claim any right to be protected under Section 3(3)
of the Street Vendors Act.
8. The counsel for the petitioners besides the passionate pleas contends
that once the law i.e. Section 3(3) of the Street Vendors Act has prohibited
eviction of street vendors till the survey to be conducted by the Town
Vending Committee (TVC) to be constituted under the said Act has been
conducted, the action of the respondents NDMC of removal of the
petitioners from the sites where each of them was street vending, has but to
be held to be illegal and the petitioners ought to be permitted to come back
and street vend from the sites where they earlier had been vending.
9. A perusal of the photographs filed along with the petition shows that
the petitioners had literally occupied the entire pavements outside Palika
Bazaar and abutting the Regal and Rivoli Cinema Halls at Connaught Place,
New Delhi and compelling the pedestrians who also have a right to use the
pavements and pathways to spill on to the road at their peril from the fast
moving traffic thereon.
10. The counsel for the respondents NDMC also states that such large
number of street vendors at the entry and exit point of the underground
Palika Bazaar market and outside the cinema halls aforesaid frequented by
large number of persons was also found to be posing a security hazard,
putting the life of the persons visiting the Palika Bazaar and the aforesaid
Cinema Halls in jeopardy.
11. It cannot also be lost sight of that the roads on which the pedestrians
are compelled to spill owing to the street vendors blocking the pavements are
the arterial roads for the busy New Delhi Railway Station and the squatting
by the petitioners also results in impeding the movement of traffic for the
New Delhi Railway Station.
12. I have in this respect, in Brahm Pal supra and in Rajnesh supra, held:
i) that Section 3 of the Street Vendors Act requires the TVC to be
constituted to conduct a survey of all 'existing' street vendors
and accommodate them in the vending zones in accordance with
the plan of Street Vending and holding capacity of the vending
zones;
ii) it is thus not as if street vending is to be unregulated and there is
an absolute right to street vend from wherever one desires;
iii) streets are primarily meant for passage, of pedestrians and
vehicles and unregulated street vending is invariably an
obstruction to movement on streets;
iv) this Court in exercise, particularly of writ jurisdiction, has to
pass orders which advance substantial justice, keeping in view
all relevant factors and cannot be oblivious of the said concerns;
v) the Court would not be justified in restraining removal of
unlicensed street vendors or permitting them to street vend from
places of their choice without satisfying itself (a) that the
petitioners in fact have been street vending from the site from
which they claim; (b) whether the said street vending is an
obstruction to free movement on the streets / pavements of the
pedestrians and vehicles; (c) how many other street vendors are
vending from the said site or in vicinity thereof and if it is not
possible to accommodate all of them, which one of them should
have priority; (d) whether such street vending poses any
security or fire or other hazard; (e) whether such street vending
is in infringement of the rights of any other person's residence
or commercial establishment abutting the said street etc.;
vi) that the said exercise is not in the domain of jurisdiction under
Article 226 and undertaking such an exercise would tantamount
to this Court conducting the survey and formulating scheme
which the other authorities under the Act have been mandated to
do;
vii) this Court if were to in all such petitions, without enquiry as
aforesaid, issue restraint orders sought, would be creating chaos
and jungle raj on the streets of Delhi with the likely possibility
of all the streets / pavements being blocked and orders with
respect to same site being passed in favour of more than one
person and fights / disputes for primacy erupting between the
street vendors and which the law enforcement agencies would
be unable to control because of each having an order in his / her
favour;
viii) that Section 3(3) of the Street Vendors Act has already afforded
protection to the street vendors and the Police and the Municipal
Authorities are expected to abide by the law of the land - if the
Courts were to in addition, issue restraint orders as are sought in
these petitions, it would be taking away the jurisdiction of the
said Authorities to, on the spot resolve the conflicts if arising
between the rights of the street vendors
under the Street Vendors Act and the rights of others viz.
pedestrians, motorists, owners of properties abutting streets etc.
under other laws and their other statutory obligations.
13. I must record that the order in Rajnesh supra and other connected
petitions was subject matter of appeals before the Division Bench which has
vide order dated 6th November, 2015 set aside the order and remanded the
petitions to the Single Judge and which are stated to be still pending. What
prevailed with the Division Bench was the fact that the appellants /
petitioners before the Division Bench were having favourable orders in their
favour from the erstwhile Zonal Vending Committee as also the Appellate
Authority. However, the Division Bench did not interfere with the reasoning
aforesaid and did not issue the directions sought before and rather remanded
the petitions to the Single Judge and which as aforesaid are pending. It is for
this reason only that I had at the outset enquired from the counsel for the
petitioners whether any of the petitioners was licensed under the regime in
vogue prior to the coming into force of the Street Vendors Act and which I
was told they are not. Thus the reason which prevailed with the Division
Bench does not come to the rescue of the petitioners.
14. I am thus of the opinion that the protection afforded by Section 3(3) of
the Street Vendors Act is only qua those who were licensed under the earlier
regime.
15. The respondent NDMC, having assessed the situation at site and
having found that the continuance of the petitioners therein is a security
hazard, this Court cannot intervene. Mention may also be made of Dharam
Chand Vs. Chairman, New Delhi Municipal Council (2015) 10 SCC 612
concerned with a licensed street vendor vending from a site outside the
Supreme Court and who, for security reasons, had been re-located. It was
held that notwithstanding the constitutional right of a citizen to carry on
business but such right is subject to certain restrictions - it cannot be
disputed that there are certain areas which may be required to keep free from
such type of kiosks for security reasons - the Court cannot direct the
administration to allow such kiosks even if there is a threat to safety and
security. It was held that the rights of the street vendors have to be balanced
with the rights of the society in general for security and that the Court cannot
assume and presume that there is no threat to the safety and security and
allow the street vendors to continue the business.
16. I may also record that now, the TVC will be functional very soon and
any orders as are sought will also interfere with its functioning.
17. There is thus no merit in the petition.
Dismissed.
No costs.
18. At this stage, the counsel for the petitioners states that liberty be given
to the petitioners to approach the TVC, constitution whereof is nearly
complete.
19. The petitioners, in accordance with law, shall be entitled to approach
the TVC.
RAJIV SAHAI ENDLAW, J
FEBRUARY 19, 2016
'gsr'
