Delhi High Court
Jai Karan & Ors vs Deputy Commissioner & Ors on 31 August, 2017
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 31th August, 2017
+ LPA No.512/2017
JAI KARAN & ORS ..... Petitioners
Through Mr.Kamlesh Kr. Mishra, Adv. with
Ms.Vishal Kalra, Adv.
versus
DEPUTY COMMISSIONER & ORS ..... Respondents
Through Mr.Mukesh Gupta, Standing
Counsel, NDMC with Ms.Shashi
Gupta and Mr.Abhishek Sharma,
Advs. for NDMC.
Mr.Sanjoy Ghosh, ASC, GNCTD
with Ms.Urvi Mohan, Adv. for R-3,
4 & 5, along with SI Prakash, PS
Sadar Bazar, in person.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE CHANDER SHEKHAR
G.S.SISTANI, J. (ORAL)
C.M. Nos.27085/2017 & 27088/2017 (exemption)
Exemption allowed, subject to all just exceptions.
Applications stand disposed of.
LPA No.512/2017 & C.M. No.27087/2017 (condonation of delay)
1. This LPA is directed against the order dated 04.11.2016 passed by a
learned Single Judge in W.P. (C) No.10461/2016 and the order passed
in review petition, dated 28.04.2017.
2. Eight petitioners had approached this Court by filing the aforesaid writ
petition. The stand of the petitioners before the learned Single Judge
and before this Court is that they are regular squatters and have been
squatting in Sadar Bazar area for the past many years.
3. Learned counsel for the petitioners has drawn the attention of the
Court to the Allotment Letters issued to the petitioners, on different
dates in the year 2009 including the letter dated 13.02.2009. The
grievance of the petitioners is that no allotment has been made
pursuant to the Allotment Letters so issued and on the other hand, the
officials of the respondents continue to harass the petitioners and are
not allowing them to squat and hence, their livelihood is being
hampered.
4. Mr.Gupta, learned counsel for the NDMC submits that the present
LPA is not maintainable; firstly, on the ground that the writ petition
was dismissed with cost of Rs.10,000/- and in the absence of payment
of the cost, the appeal cannot be heard; and secondly, there is no
infirmity or illegality in the orders passed by the learned Single Judge.
Mr. Gupta further contends that the learned Single Judge has taken
into account the fact that the petitioners had firstly approached this
Court in the year 2015 by filing a writ petition being W.P. (C)
No.2340/2015 and the said writ petition was disposed of by a Single
Judge by an order dated 11.03.2015. Leave was granted to the
petitioners to approach the Town Vending Committee ("TVC") as and
when it is functional. Mr.Gupta further contends that almost identical
relief has been prayed in the subsequent writ petition which rightly
also stands dismissed.
5. Mr.Gupta has also highlighted the fact that the Sadar Bazar area has
been declared as "No Hawking No Vending" zone and an affidavit to
this effect was filed by the MCD before the Supreme Court of India in
the case of Gainda Ram v. Municipal Corporation of Delhi, W.P. (C)
No.1699/1987. It is further submitted that while dealing with an
interim application in the said writ petition, the Supreme Court by an
order dated 05.05.2006 had directed the Delhi Police to ensure that the
hawkers are removed from the no-hawking zone and to ensure that the
same is not re-occupied by them. It is contended by Mr.Gupta that
any order allowing hawking and vending in the area in question would
amount to contempt of the order passed by the Supreme Court.
6. Another ground raised by Mr.Gupta is that in the year 2010, the
petitioners had approached the Zonal Vending Committee, however,
the relief so prayed was declined and the order dated 18.06.2010
passed by the Presiding Officer of the Zonal Vending Committee has
attained finality. It is, thus, submitted that from 2010 onwards, it can
safely be stated that the petitioners are not hawking or vending at the
respective sites so claimed by them.
7. In response to the submissions made by Mr.Gupta, Mr.Mishra -
learned counsel for the petitioners submits that having regard to the
financial status of the petitioners, the petitioners cannot be faulted; in
fact, they have been running from pillar to post to ensure that their
livelihood is protected. It is submitted that no doubt, the relief sought
to be claimed in the second writ petition was available to them, but in
the absence of proper legal advice, no relief was sought with regard to
the Allotment Letters so issued. Mr.Mishra contends that firstly, the
order imposing the cost of Rs.10,000/- may be waived and the
petitioners may be granted an alternate site till the TVC is functional.
8. We have heard the learned counsels for the parties and considered
their rival submissions. It is not in dispute that the petitioners had
approached the Zonal Vending Committee and by an order dated
18.06.2010, the relief sought was declined. It is also not in dispute
that the aforesaid order has attained finality. Copy of the order dated
11.03.2015 would show that the petitioners had filed an earlier writ
petition being W.P. (C) No.2340/2015 which already stands disposed
of, permitting the petitioners to approach the TVC for redressal of
their grievances. It is not in dispute that the TVC is not functional till
date.
9. While we are not satisfied with the explanation rendered by the
learned counsel for the petitioners for filing a second writ petition and
accordingly, we find no infirmity in the order passed by the learned
Single Judge, however, taking into consideration the submissions
made and the financial status of the petitioners, we modify the order
dated 04.11.2016 as far as it relates to payment of cost. The
Allotment Letters, on which reliance is placed, in our view, cannot be
enforced, firstly for the reason that there is no explanation for the
delay and laches in approaching this Court and secondly, post
issuance of these Allotment Letters, the Supreme Court had granted
stay on all further proceedings in the High Court and resultantly, the
Allotment Letters were not given effect to universally by the MCD.
10. As prayed, we dispose of this LPA while waiving the cost of
Rs.10,000/- imposed. The petitioners would be free to approach the
TVC as and when it is functional. The TVC will consider the case of
each petitioner based on the documents filed by them, unaffected by
any observations made by the Zonal Vending Committee or the
learned Single Judge in the impugned orders.
11. With these directions, the LPA is disposed of.
12. C.M. No.27087/2017 also stands disposed of.
C.M. No.27086/2017 (for interim relief)
Application stands disposed of in view of the order passed in the writ
petition.
G. S. SISTANI, J.
CHANDER SHEKHAR, J.
AUGUST 31, 2017/ka
