Kamlesh Kumar Gupta vs Ndmc And Ors
2017 Latest Caselaw 6145 Del

$~1 (Single Bench)
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 3859/2011
       KAMLESH KUMAR GUPTA                      .....Petitioner
                  Through: Mr. Suhail Khan, Advocate with
                  Mr. Vishal Raj Sehijpal, Advocate and petitioner
                  in person.


                           versus

       NDMC AND ORS                                      ..... Respondents
                           Through: Mr. Sri Harsha Peechara, Standing
                           Counsel with Mr. Mananjay Kumar Mishra,
                           Advocate
       CORAM:
       HON'BLE MS. JUSTICE HIMA KOHLI

                           ORDER

% 03.11.2017

REVIEW PET. 727/2011 (by the respondents/NDMC)

1. The present review application was allowed by this Court vide order dated 16.12.2016, withdrawing the protection granted to the petitioner vide order dated 31.05.2011, of which review has been prayed for by the respondents/NDMC. Liberty was however granted to the petitioner to seek his remedies against the respondents/NDMC before the appropriate forum and an interim protection was granted to him till 08.01.2017 with a clarification that if no interim order is granted in his favour by the said date, then the respondents/NDMC would be entitled to take appropriate action against the petitioner if he is found squatting opposite Gate No.3 and 4, Palika Bazar, New Delhi, or any other non-squatting zone in the jurisdiction

of the NDMC.

2. Aggrieved by the aforesaid order, the petitioner had preferred an appeal, registered as LPA 6/2017, which was disposed of by the Division Bench on 04.01.2017, remanding the matter back to this Court for hearing the review application afresh.

3. Learned counsel for the respondents/NDMC has made twofold submissions to seek review of the order dated 31.5.2011. He urges that the petitioner has tried to play a fraud with the judicial process and deliberately stated false facts so as to give an impression to the Court that he had been permitted by the NDMC to squat at the vending site, opposite Gate No.3 and 4, Palika Bazar, New Delhi, when no such permission had ever been granted. He submits that in para 2(a) of the petition, the petitioner has averred that he has been carrying on his business of selling readymade garments at a vending site near Regal Building, Connaught Place, New Delhi since the year 1997, but in the month of November, 2010, he was requested by the NDMC to shift to a site opposite Gate No.3 and 4, Palika Bazar, New Delhi, due to an ongoing project work. Learned counsel submits that apart from one removal challan dated 04.03.2011 in the petitioner's possession that mentions the site as Palika Bazar, nothing at all has been placed on record by the petitioner to show that any such permission had been granted to him by the NDMC to shift from the site at Regal Building, Connaught Place, New Delhi, to a site opposite Gate No.3 and 4, Palika Bazar, New Delhi.

4. Learned counsel for the respondents/NDMC further states that in para 2(d) of the petition, the petitioner has averred that he had submitted a prescribed application form alongwith the supporting challans and receipts

to the respondents/NDMC for grant of a regular vending site under the Scheme, but he deliberately failed to state alongside that the said application was submitted by him for being granted a vending site opposite Gate No.3 and 4, Palika Bazar, New Delhi. In this regard, learned counsel draws the attention of this Court to the document filed by the petitioner at page 48 of the paper book, where he has mentioned his present place of squatting as Regal Building, Connaught Place.

5. Lastly, learned counsel for the respondents/NDMC states that in para 2(f) of the petition, though the petitioner had mentioned the fact that he had earlier filed a writ petition, in this Court against the respondents/NDMC registered as W.P.(C) 8096/2010 and he has also referred to the order dated 23.12.2010 passed in the said proceedings, but he has deliberately failed to place on record a copy of the said order. Instead, he has selectively referred to only a part of the said order, which suited him, that was for issuing directions to the respondents/NDMC to consider the eligibility of the petitioner for registration and to take a decision in that regard, on or before 31.12.2011. He hands over a copy of the order dated 23.12.2010 passed in W.P.(C) 8096/2010, which is reproduced hereinbelow for ready reference:-

"1. The petitioners claim to be hawkers squatting opposite Gate No.3 and 4, Palika Bazar, Connaught Place, New Delhi and further claim to have applied to the respondent NDMC for allotment of tehbazari rights and have filed these writ petitions seeking protection from dispossession at the hands 1/3 of the NDMC and police till the consideration of their applications. Though no notice of the writ petitions has been issued as yet but the counsel for the respondent NDMC has filed counter affidavit in W.P.(C) No.8096/2010. It is however informed that counter affidavit has been filed in the other writ petitions also on identical lines. The respondent NDMC in the

counter affidavits has denied that the petitioners are squatting opposite Palika Bazar.

2. In the circumstances, no protection as sought can be granted to the petitioners and the only relief which can be granted is to direct the Vending Committee of the NDMC to decide the applications of the petitioners expeditiously. The counsel for the petitioners contends that the fault being of the NDMC itself in having not decided the applications of the petitioners, the petitioners ought to be granted protection. It is further contended that the petitioners in the past also have preferred writ petitions in this Court and in which directions were made for expeditious disposal of the applications but notwithstanding the said directions, the applications have not been decided till now.

3. The counsel for the respondent NDMC however states that the Vending Committee will decide the eligibility of the petitioners for registration under the NDMC Scheme of Urban Street Vendors within four weeks and if the petitioners are found eligible, they would be registered under the Scheme and be eligible for allotment of tehbazari site on the basis of lottery.

4. The squatting/tehbazari rights in the NDMC area being limited and the number of applicants being much more, it has been found that if interim protection as sought is granted, the same leads to the persons who are found eligible and granted tehbazari rights, being not able to occupy allotted site owing to persons under protection of orders of the Court occupying the same. For this reason, it is felt that no case for protection in this case is made out especially when the very existence of the petitioners at the site has been disputed in the counter affidavit of the respondent NDMC and there is nothing to suggest otherwise.

5. The writ petitions are therefore disposed of with the directions to the NDMC to consider the eligibility of the petitioners for registration and to take a decision on or before

31st January, 2011. The petitioners to appear before the Vending Committee at 3rd Floor, Pragati Bhawan on 3rd January, 2011 at 1100 hours.

The writ petitions are disposed of. No order as to costs."

6. It is thus stated by learned counsel for the respondents/NDMC that the petitioner has deliberately withheld material facts from this Court and wrongly sought to portray to this Court that he had been squatting at the site opposite Gate No.3 and 4, Palika Bazar, New Delhi, for a long time. But fact of the matter is that the petitioner was never permitted by the NDMC to shift to the site opposite Gate No.3 and 4, Palika Bazar, New Delhi.

7. Learned counsel for the petitioner disputes the aforesaid submissions and asserts that there has been no concealment on the part of the petitioner in making the relevant averments in the petition. He submits that the petitioner does not dispute the fact that he was vending at the site near Regal Building, Connaught Place, New Delhi, but somewhere in November, 2010, he had shifted to a site opposite Gate No.3 and 4, Palika Bazar, New Delhi, which is evident from the removal challan dated 04.03.2011 filed with the petition. He also draws the attention of this Court to the photograph of the petitioner taken at the site near Palika Bazar, filed with the petition as Annexure P-2. Learned counsel disputes the submission made by the other side that the petitioner had deliberately kept the order dated 23.12.2010 away from the Court and not placed it on record. He is however not in a position to explain as to why was a copy of the order dated 23.12.2010 passed in the earlier writ petition filed by the petitioner, i.e., W.P.(C) 8096/2010, not filed. He contends that only the relevant part of the said

order needed to be extracted, which was made a part of the averments in para 2(f) and there wasn't any requirement for the petitioner to have quoted the entire order.

8. This Court has heard the counsels for the parties and carefully considered their respective submission.

9. The record reveals that to substantiate his submission that the respondents/NDMC had asked the petitioner to shift to a vending site opposite Gate No.3 and 4, Palika Bazar, New Delhi, the petitioner has relied upon the removal challan dated 04.03.2011 and his photograph showing him vending at the said site. The very issuance of the removal challan by the respondents/NDMC evidences the fact that the petitioner was never granted any permission to vend at the said site. There is no written permission granted by the respondents/NDMC that the learned counsel for the petitioner could produce to demonstrate that he had been granted permission to squat at the aforesaid site. The photograph of the petitioner at the disputed site, referred to by the counsel for the petitioner at page 19-A of the paper book, cannot be a ground to claim that the petitioner was legally permitted to squat at the said site.

10. As for the order dated 23.12.2010 passed in the earlier petition filed by the petitioner, which has been reproduced hereinabove, it is quite clear from a perusal of the said order that the Court was not inclined to grant any protection to him and was only inclined to direct the Vending Committee of the respondents/NDMC to decide his pending application for allotment of tehbazari rights. After expressing the said view, the Court had opined that it was not a fit case for extending any protection to the petitioner when his very existence at the site had been disputed by the respondents/NDMC while

filing the counter affidavit. This part of the order dated 23.12.2010, was undoubtedly brushed under the carpet by the petitioner and this court was never apprised of the entire order on 31.5.2011.

11. It is pertinent to note that the order dated 31.05.2011 was passed in the present case on the date of admission itself, in the presence of the counsels for both sides. As a result, there was no occasion for the respondents/NDMC to have filed a counter affidavit in the mater. It is also noteworthy that several petitions of a similar nature had been filed by different parties against the respondents/NDMC, claiming allotment of vending sites in different market areas and asking for interim protection. In fact, the order dated 31.05.2011 itself refers to one of the said petitions, registered as W.P.(C) 3364/2011 that was disposed of on 25.05.2011. On 31.05.2011, learned counsel for the petitioner had himself relied on the said order. He had in fact stated that the petitioner was squatting opposite Gate No.3 and 4, Palika Bazar, Connaught Place, New Delhi, for a long time and therefore, his client was entitled to the same relief as granted to the petitioner in W.P.(C) 3364/2011 and other connected matters, without elaborating on the order dated 23.12.2010 passed on his earlier petition.

12. This Court is firmly of the opinion that it was incumbent for the counsel for the petitioner to have pointed out on 31.05.2011, that the petitioner had not been squatting at the aforesaid site for a long time but only for a few months and prior thereto, he was squatting at a different site opposite Regal Building, Connaught Place. Had that fact been brought to the notice of this Court, the petitioner would not have got the benefit of the interim protection, as was extended to the petitioners in W.P.(C) 3364/2011 and other connected matters, whereby the respondents/NDMC was directed

not to disturb them from their present hawking sites till the Vending Committee would complete the exercise of determining the status of their eligibility.

13. In view of the aforesaid facts and circumstances, this Court is of the opinion that the order dated 31.05.2011 ought to be recalled. Ordered accordingly. The protection granted to the petitioner is withdrawn with immediate effect.

14. The review application is allowed and disposed of. No orders as to costs.

HIMA KOHLI, J NOVEMBER 03, 2017 rkb/ap