Delhi High Court
Mahesh Kumar Yadav vs New Delhi Municipal Council & Ors on 18 September, 2017
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 18th September, 2017
+ W.P. (C.) No.11415/2016
MAHESH KUMAR YADAV ..... Petitioner
Through Mr.Lakshay Sawhney, Adv. with
Mr.Aditya Shandilya, Adv.
versus
NEW DELHI MUNICIPAL COUNCIL & ORS ..... Respondents
Through Mr.Mananjay Kr. Mishra & Ms.Vidhi
Jain, Advs. for Mr.Sri Harsha
Peechara, Standing Counsel, NDMC.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE CHANDER SHEKHAR
G.S.SISTANI, J. (ORAL)
1. This is a petition under Article 226 of the Constitution of India filed
by the petitioner seeking an appropriate writ, order or direction to the
respondents to permit the petitioner to continue his vending activity
from the site shown in the plan Annexure P-2 and also to include the
name of the petitioner in the survey of existing street vendors as per
his seniority.
2. The petitioner claims to be a regular squatter and was squatting near
Indian Oil Building, Janpath Lane, New Delhi.
3. The main thrust of the arguments of the learned counsel for the
petitioner is that since the petitioner has been regularly squatting, he
could not have been removed. Strong reliance is placed on the
observations made in the order passed by another Division Bench of
this Court, dated 27.09.2016 in LPA No.136/2016. In support of his
submission that the petitioner is a regular squatter and has acquired a
preexisting right and moreover his name finds mentioned in the list of
3000 squatters prepared by the NDMC thus he cannot be removed.
Mr.Sawhney points out that this LPA was initially disposed of by an
order dated 18.05.2016, however, on an application filed by the
NDMC, necessary clarification was provided. Mr.Sawhney submits
that the name of the petitioner finds mentioned in a list prepared by the
NDMC comprising of 3000 persons. He has drawn the attention of the
Court to observations made in para 9 of the order dated 18.05.2016,
which is reproduced below:-
"9. In these circumstances, this Court is of the opinion
that para 26(5) is to be understood as to mean that the
NDMC, till final adjudication in the other writ
proceedings vis-à-vis the constitution of the TVC (under
validity of the concerned notification), should while
ensuring smooth passage in public spaces and pavements,
ensure the following:
(1) Those with a pre-existing right in the form of
mention in any previous list, should not be
disturbed as far as possible;
(2) The principle of seniority emphasized in the main
judgment should be maintained;
(3) NDMC can, in enforcing smooth passage, remove
those carrying on activities as street vendors etc. if
their activity impedes or affects movement in the
public passage or pavement etc. At the same time,
if such individual or street vendor is removed, the
NDMC is further directed to ensure that the names
and particulars of all such individuals (with pre-
existing rights in some form in other previous lists
maintained for this purpose and not others) is
maintained for use later when the issue is decided
and the exercise is carried out by the regular
TVC."
4. Mr.Sawhney submits that the petitioner should be allowed to vend and
squat near Indian Oil Building, Janpath Lane and a direction should
also be issued to the respondents not to harass him.
5. Mr.Mishra, learned counsel for NDMC submits that the averments
made in this writ petition are not factually correct. Initially, the
petitioner was vending near Parliament Street and thereafter, he
illegally occupied a place in Janpath Lane. It is contended that the
petitioner is an illegal squatter and his name does not find mention in
any of the three lists prepared by the NDMC. It is explained that the
first list was prepared prior to 1989; the second list was prepared
under the supervision of the Supreme Court and Thareja Committee
verified the persons; and the third list was prepared in the year 2012
arising out of a policy of the NDMC of the year 2007 when 628 street
vendors were enlisted. It is submitted that the name of the petitioner
does not fall in either of the three lists. He submits that no other list
has ever been prepared by the NDMC and the reference to the
observations made in Para 9 of order dated 18.05.2016 in LPA
No.136/2016, paragraph 9 is misplaced and the reference is only with
respect to the above stated three lists and no other list.
6. Mr.Mishra also submits that the list at page 68 of the paper-book
sought to be relied upon by Mr.Sawhney does not show that it is a list
relied upon by the NDMC during the hearing of the said LPA. He
submits that the cause title of the list would itself show that this is a
list of „Eligible Applicants‟ and nothing further. It is further submitted
that the word „list‟ mentioned in paragraph 9 of the order of the
Division Bench is to be read in its correct perspective and in the light
of the fact that only three lists have been prepared, only three lists
were discussed and the order is to be understood in the light of only
those three lists.
7. Mr.Mishra further submits that the necessity for seeking clarification
of the order dated 18.05.2016 had arisen on account of the fact that
under the garb of the first order dated 18.05.2016, the street vendors
had started occupying large areas hindering smooth flow of traffic and
the safe movement of pedestrians from the public places and
pavements. It is submitted that the clarification was then rendered by
the Division Bench giving a right to the NDMC to enforce smooth
passage and remove such persons whose activities would impede and
affect movement in the public passages and pavements. He submits
that a careful and complete reading of the order would show that the
NDMC has been permitted to take an appropriate action and remove
such persons who are selling articles at places which obstruct the
movement of pedestrians and traffic.
8. Mr.Mishra also relies upon page 69, an interim order passed by the
Supreme Court, to show that the understanding has all along been with
either of the three lists and not any other list.
9. We have heard the learned counsels for the parties. We may note that
after coming into effect of the Street Vendors (Protection of
Livelihood and Regulation of Street Vending) Act, 2014, Section 22
of the Act provides for the formation of a Town Vending Committee
("TVC"). As per Section 22(2)(d), the number of members
representing the street vendors in the TVC shall not be less than 40%
and who are to be elected by the street vendors themselves in a manner
which may be prescribed. Rules, more particular Rule 13 has,
however, created an anomaly as per which representation of the street
vendors in the TVC is on the basis of the nomination. Highlighting
this issue, another Division Bench of this Court had granted stay of the
Scheme and thus, till date the TVC is not functional. We may add
further that this Court was informed that these Rules are also being
amended by the Government of NCT of Delhi.
10. Taking note of such a situation, this Court had, with the consent of the
stakeholders, directed that a representation be made to the Hon‟ble
Chief Minister to enable the Government, which is also in the process
of amending the Rules, to consider this request of the street vendors.
We may also note that taking into account that the matters were being
adjourned from time to time and despite repeated requests, an
expeditious decision was not being made, the Special Secretary, Urban
Development, GNCTD was requested to appear in Court and he was
requested that an early decision be taken in the matter.
11. In a large number of matters against the NDMC before us, the
consistent stand is being taken that having regard to the paucity
of space and with a view to regulate the street vendors and to
ensure smooth flow in public passages and pavements, the NDMC is
allowing only such street vendors whose names find mentioned in
either of the three lists, i.e. list of tehbazari license holders, list
prepared by the Thareja Committee and the list of 628 street vendors.
Having regard to the fact that this is the consistent stand being taken
by the NDMC and the fact that the repeated statements have been
made that except those persons belonging to these lists, the NDMC is
not allowing any other street vendor to vend, for the reason that there
is paucity of space, in our view, the word „list‟ appearing in paragraph
9 of the order passed in Bhola Ram Patel v. New Delhi Municipal
Council and Anr., LPA No.136/2016, is to be read and understood in
the context of the three lists which are consistently being relied upon
by the NDMC. Copy of the list relied upon by the learned counsel for
the petitioner pertains to a list of those persons who had applied for
licence. In case the petitioner was a regular street vendor his name
would have found mentioned in either of the three lists prepared by the
NDMC. In our view, no right would accrue in their favour based on
the list relied upon by counsel for the petitioner. Consequently, we
find no ground to allow the present writ petition. The same is
accordingly dismissed.
12. Needless to say that as and when the TVC becomes functional, the
case of the petitioner would be considered by the TVC on the
petitioner‟s furnishing all the relevant documents. The TVC would
consider the case of the petitioner expeditiously, as he claims that he
has been squatting for a long period of time. Merely because the
petitioner is not found vending at the site when the survey is
conducted, that by itself would not be a ground alone to reject his 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.
C.M. No.44744/2017 (for stay)
Application stands disposed of in view of the order passed in the writ
petition.
G.S.SISTANI, J.
CHANDER SHEKHAR, J.
SEPTEMBER 18, 2017/ka
