Delhi High Court
Bhikki Ram vs New Delhi Municipal Council on 12 September, 2017
$~9, 10, 11, 13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 12th September, 2017
+ W.P. (C.) 930/2017
BHIKKI RAM ..... Petitioner
Through Mr.Satish Kumar Tripathi and Mr.
Amit Kumar Dubey, Advocates
versus
NEW DELHI MUNICIPAL COUNCIL ..... Respondent
Through Mr. Sri Harsha Peechara, Standing
Counsel with Mr. Mananjay Mishra
and Ms. Vidhi Jain, Advocates
+ W.P.(C) 1181/2017
KUNWAR PAL SINGH ..... Petitioner
Through Mr.Satish Kumar Tripathi and Mr.
Amit Kumar Dubey, Advocates
versus
NEW DELHI MUNICIPAL COUNCIL ..... Respondent
Through Mr. Sri Harsha Peechara, Standing
Counsel with Mr. Mananjay Mishra
and Ms. Vidhi Jain, Advocates
+ W.P.(C) 1191/2017
SANJEEV KUMAR ..... Petitioner
Through Mr.Satish Kumar Tripathi and Mr.
Amit Kumar Dubey, Advocates
versus
NEW DELHI MUNICIPAL COUNCIL ..... Respondent
W.P. (C) No.930/2017 etc. Page 1 of 9
Through Mr. Sri Harsha Peechara, Standing
Counsel with Mr. Mananjay Mishra
and Ms. Vidhi Jain, Advocates
+ W.P.(C) 1218/2017
BALIK RAM ..... Petitioner
Through Mr.Satish Kumar Tripathi and Mr.
Amit Kumar Dubey, Advocates
versus
NEW DELHI MUNICIPAL COUNCIL ..... Respondent
Through Mr. Sri Harsha Peechara, Standing
Counsel with Mr. Mananjay Mishra
and Ms. Vidhi Jain, Advocates
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE CHANDER SHEKHAR
G.S.SISTANI, J. (ORAL)
1. Four petitioners claim to be vending at Janpath Lane, on the side of
Bank of Baroda Building(near PT-28-Pan Shop), Connaught Place,
New Delhi; Janpath Lane, opposite LIC Building, back side, New
Delhi(earlier from 30/9, P-Block Madras Hotel); Janpath Lane,
opposite LIC Building, back side, New Delhi(earlier from 30/9, P-
Block Madras Hotel); and Janpath Lane, adjacent to LIC parking gate,
towards Mini Market, New Delhi respectively.
2. The petitioners have filed the present petitions under Article 226 of the
Constitution of India. For the sake of convenience, the prayer made in
W.P.(C).930/2017 is being reproduced hereinunder:
"a. admit the writ petition against the respondents;
b. direct the respondent to restore his present vending site i.e.
at/near Janpath Lane, on the side of Bank of Baroda
Building(near PT-28-Pan Shop), Connaught Place, New Delhi
till such time the respondent/NDMC will complete the
exercise of proper verification and final allotment of vending
site to him as per new Act as petitioner is an existing verified
vendor and has already been earlier protected by this Hon'ble
Court as his name being found in the several list of NDMC
and particularly to whom NDMC has admitted to be existing
vendor.
c. pass any other order/relief which this Hon'ble Court may
deem fit and proper in the facts and circumstances of the
present case."
3. Identical prayers have been made in the other three writ petitions as
well. The petitioners claim that the petitioners are regular street
vendors. Initially, they had applied for a licence and were hawking in
the Janpath area of NDMC. After their licences had expired, the
petitioners started vending at different places in the Janpath, NDMC
area. The grievance of the petitioners is that they have been illegally
removed by the officials of the NDMC in the month of January, 2017.
The petitioners seek a direction to the respondents to allow them to
squat at their respective areas and not to disturb and cause any
hindrances primarily two grounds: (i) that the petitioners are entitled
to protection under Section 3(3) of the Street Vendors (Protection of
Livelihood and Regulations of Street Vending) Act, 2014; and (ii) the
petitioners have been vending for a long period of time and their
livelihood would be affected in case they are not allowed to vend.
4. A reply has been filed by the respondent NDMC. Learned counsel for
the respondent submits that admittedly the petitioners were granted
licence to hawk under Section 330 of the NDMC Act. As per the
provisions of the NDMC Act, a hawker has no fixed place of hawking
and can roam in the prescribed areas but cannot occupy any specific
place. It is submitted that in the case of the petitioner in
W.P.(C)930/2017, his licence was not renewed after 2002; and in the
case of W.P.(C)1181/2017, W.P.(C)1191/2017 and W.P.(C)
1218/2017, their licences were not renewed after 2011. Counsel for
the respondent submits that in terms of hawking licence, unlike a
squatter, who is allowed to squat in the fixed place, but in the case of a
hawker, a hawker is allowed to roam in the prescribed areas and sell
their goods but cannot occupy any specific place. Thus, it is
contended that the claim of the petitioners that they are vending at
fixed place is prima facie misleading and patently false. It is
submitted that the petitioners were removed as they were illegally
vending in an already over-crowded place and obstructing free flow of
pedestrians' movement. Moreover, it is contended that having regard
to the space available in the NDMC area, the NDMC is following a
uniform policy of allowing only those street vendors to vend whose
names find mentioned in the list of 628 eligible persons prepared by
the NDMC or are licenced vendors or hawkers. Counsel contends that
having regard to the area available and complaints of illegal rampant
vending, encroachments, obstructions of the public movements,
obstruction to the ingress and egress of metro commuters, obstructions
to the parking and several buildings in the Connaught Place and
Janpath areas, near government buildings, drives are conducted to
remove the illegal hawkers and vendors. Mr.Peechara submits that a
clarification was also sought by the respondent in LPA.136/2016 titled
as Bhola Ram Patel v. NDMC of the order dated 18.05.2016. The
counsel contends that following the clarification dated 27.09.2016, the
respondent has been carrying out exercises to regain the footpaths and
roads and clear the places from illegal encroachers from obstruction to
the pedestrians and free flow of public traffic and for security reasons.
It is contended that footpaths in the NDMC areas are limited, besides
the petitioners are not in the list of 628 persons prepared by the
NDMC.
5. In response to the submissions made by the learned counsel for the
respondent, Mr. Tripathi learned counsel for the petitioners contends
that the respondents are following a pick and choose policy. Illegal
street vendors are allowed to vend whereas the petitioners are not
being allowed to vend. Mr. Tripathi submits that in W.P.(C)930/2017,
the petitioner had approached this Court in the year 2005 by filing
W.P.(C).21908-10/2005, wherein the following orders was passed on
05.12.2005:
"CM No.15109/2005 in WP(C) Nos.21908-10/2005
Learned counsel for the respondent states that as long as the
petitioners conduct trade from the sites notified and do not sell
products which they are not authorized to sell, no action would
be taken against the petitioners.
In that view of the matter, orders need not be passed in the
application save and except to take the statement of the
counsel on record and to bind the respondent thereto.
CM disposed of."
6. Similar order was passed in W.P.(C).318/2011 on 05.05.2011. The
orders are identical in nature.
7. We have heard the learned counsel for the parties and considered their
rival submissions.
8. The first question which arises for consideration is as to whether the
petitioners are street vendors or not. Admittedly, it is the case of the
petitioners that they had applied for licences to hawk which were
granted and not renewed in the case of W.P.(C)930/2017 after 2002;
and in the case of W.P.(C)1181/2017, W.P.(C)1191/2017 and W.P.(C)
1218/2017 after 2011. Accordingly, the petitioners cannot claim to be
regular street vendors as hawkers are only permitted to sell their goods
by roaming in the areas prescribed and cannot occupy any fixed place.
We also find as noticed in para 3 hereinabove that the licences of the
respective petitioners expired in the year 2002 and 2011. No steps
have been taken by the petitioners to seek renewal of their licences.
Besides, we also find that the names of the petitioners do not find
mentioned in the list of 628 persons prepared by the NDMC.
9. Being a statutory body, we expect NDMC to act in a fair and just
manner without any favour of any kind. A consistent stand has been
taken before us that having regard to the space available with the
NDMC where it has reached a saturation point, accordingly it has
taken a policy decision not to allow more than 628 street vendors to
vend. In our view, this Court cannot interfere in the policy decision of
the NDMC, provided it is not illegal, unreasonable and the same is
being followed in a fair, just and uniform manner without any favour
of any kind.
10. The NDMC had sought a clarification in LPA.136/2016 titled as
Bhola Ram Patel v. NDMC to allow them to take action against the
vendors who are blocking the ways and who are obstructing public
movement. By order dated 27.09.2016, a clarification has been
rendered by the Division Bench. It has been submitted before this
Court that post the clarification, the respondent has been carrying out
exercise to regain the footpaths and roads and clear the place from
illegal encroachers from causing obstruction to the pedestrians and
free flow of public traffic and for security reasons. In this context we
reproduce paras 3,4 and 5 of the counter affidavit of the NDMC filed
in W.P.(C).930/2017, which are as under:
"3. It is respectfully submitted that the areas in which the
petitioner falsely claims to do vending is already overcrowded
and the petitioner should not be allowed to create any
obstruction and free flow of the pedestrians' movements. In
any case, it is reiterated that he is neither authorized nor in the
list of 628 therefore, any such claim is liable to be declined
and the present petition is liable to be dismissed.
4. That the respondent has been receiving several complaints
of rampant vending, encroachments, huge obstructions of the
public movements, obstruction to the ingress and egress of
metro commuters, obstructions to the parking and several
buildings in the Connaught Place and Janpath areas, near
government buildings and such illegal vending is in the
violation of the provisions of law and judgments and order
dated 18.05.2016 read with clarification order dated
27.09.2016 passed by the Hon'ble Division Bench in LPA
no.136/2016 titled as Bhola Ram Patel v. NDMC.
5. Accordingly, the respondent has been carrying out exercise
to regain the footpaths and roads, clear that place and to
remove encroachments, obstruction to the pedestrians, to
ensure the free flow of the public movement and security etc
and strictly removing not allowing unauthorized vendors like
the petitioner."
11. As far as the orders relied upon by the learned counsel for the
petitioners are concerned, we are of the view that the same cannot be
of any benefit to the petitioners as the judgments and order dated
18.05.2016 read with clarification order dated 27.09.2016 passed by
the Hon'ble Division Bench in LPA no.136/2016 titled as Bhola Ram
Patel v. NDMC, the order passed on 05.12.2005 in W.P.(C).21908-
10/2005 and the subsequent order passed on 05.05.2011 in
W.P.(C).318/2011, the learned Single Judge of this Court had directed
the respondents not to disturb the possession of the petitioners in view
of the National Capital Territory of Delhi Laws (Special Provisions)
Act, 2011. In our view, the question as to whether the petitioners were
hawkers were not brought to the notice of the learned Single Judge
and the fact that being a hawker, a person would not be entitled to a
fixed place.
12. For the reason that the petitioners are hawkers, they cannot be allowed
to hawk at a fixed place; they are not vendors; and their names do not
find mentioned in the list of 628 street vendors and were blocking the
free movement of pedestrians, no relief can be granted to the
petitioners.
13. However, we grant leave to the petitioners that as and when the TVC
is functional, they may approach the TVC with all the supporting
documents. The TVC would consider the case of the petitioners in
accordance with law. Merely because the petitioners are not found
vending at the site when the survey is conducted, that by itself would
not be a ground alone to reject their case. This direction is being
passed without prejudice to the rights and contentions of both the
parties and without expressing any opinion on the merits of the matter.
14. Accordingly, we find no merit in the writ petitions; the same are
disposed of with the above directions.
CM. APPL 4209/2017(stay) in W.P.(C).930/2017
CM. APPL 4372/2017(stay) in W.P.(C).1181/2017
CM. APPL 5400/2017(stay) in W.P.(C).1191/2017
CM. APPL 5512/2017(stay) in W.P.(C).1218/2017
15. Application stand disposed of in view of the order passed in the writ
petitions.
G.S.SISTANI, J.
CHANDER SHEKHAR, J.
SEPTEMBER 12, 2017
pst
