Delhi High Court
Ram Kumar vs Gnct Of Delhi And Ors on 9 October, 2018
$~49
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 9th October, 2018
+ W.P.(C) 10787/2018
RAM KUMAR ..... Petitioner
Through Mr. M. Saif Islam Israily & Mr. M.
Mohsin Israily, Advocates.
versus
GNCT OF DELHI AND ORS ..... Respondents
Through Mr. Darpan K.M. & Mr. Hetu Arora
Sethi, Advocates for R-1 & R-4.
Mr. Ramkumar, Standing Counsel for
North MCD with Mr. Sushil Kumar,
Advocate for R-3 & R-4.
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S. SISTANI, J. (ORAL)
1. Challenge in this petition is to the orders dated 22.05.2018 and
29.05.2018 passed by Public Grievances Commission (hereinafter
referred to as the 'Commission'). By order dated 29.05.2018,
following direction has been issued:
"4. Directions of the PGC
Hon'ble Delhi High Court has also vide its orders
dated 28.5.2018 ordered for removal of barbar
shop. The action has already been taken by the
MCD authorities. In the light of the ATR and
High Court order no such encroachment, once
removed by the MCD should be allowed to re-
occur."
2. This case has a long history. Some necessary facts required to be
noticed are that the petitioner herein claims to be a regular street
vendor. He claims to be carrying on his business as a barber behind
shop no.210, Library Road, Azad Market, Delhi. The occupier of shop
no.210 and the petitioner have been locked in litigation for the past 5
years. Claims and counter claims have been filed. While the occupier
of the shop had opened a shutter towards the backside where the
petitioner was carrying on his business. The attempt of the occupier of
the shop was that the petitioner should be removed while the petitioner
has been resisting the action of the shop owner and the MCD.
3. Counsel for the petitioner submits that the Commission has exceeded
its jurisdiction. The order passed by the Commission should be set
aside as the question with regard to petitioner's carrying out his
vending activities is already pending adjudication before the Town
Vending Committee (TVC) and it is the only TVC, who can decide
this issue. Additionally, it is contended that the Commission has
wrongly relied upon orders dated 16.05.2018 and 28.05.2018 passed
by this Court in W.P. (C) 4787/2018. Mr. Israily further submits that
in both these orders, no direction had been issued either to the MCD or
any other statutory body for removal of the petitioner.
4. Mr. Ramkumar, counsel for North MCD submits that the petitioner is
illegally occupying public land and he has been removed on many
occasions but he returns at the same place.
5. Counsel for the Commission submits that based on the material
available and the stand of the MCD, the impugned orders have been
passed. However, he submits that the Commission has also taken note
of the order passed by learned Single Judge of this Court in W.P. (C)
5809/2017 dated 18.12.2017.
6. Heard counsel for the parties. We deem it appropriate to reproduce
below the orders passed by the Division Bench of this Court, which
have been relied upon by the Commission:
"ORDER
16.05.2018
Notice to show cause as to why this petition be
not admitted. Ms. Jyoti Taneja, Advocate accepts notice
on behalf of respondents no.1 & 3. Issue notice to
respondent no.2 by all modes including Dasti, returnable
on 28.05.2018.
Ms. Taneja submits that repeated action has been
taken to remove respondent no.2 as he is occupying
public land. However, respondent no.2 returns to the
existing site. Respondent no.2 is directed to remain
present in Court."
"ORDER
28.05.2018
Counsel for respondent No. 2 enters appearance on an
advance copy along with respondent No. 2. Time is
sought to file reply. Reply be filed within four weeks.
Rejoinder(s), if any, be filed within two weeks
thereafter. Status report be also filed by the MCD. List
on 08.08.2018."
7. Reading of the aforesaid two orders would show that this Court had
nowhere issued any direction to any public authority for removal of
the petitioner herein. However, we may add that it is the consistent
stand of the MCD as reflected in the order dated 16.05.2018 that the
petitioner is occupying the public land.
8. Order dated 18.12.2017 passed in W.P. (C) 5801/2017 by learned
Single Judge of this Court reads as under :
"1. The petitioner has filed the present petition, inter
alia, impugning the orders dated 17.10.2016 and
05.12.2016 passed by the Public Grievance Commission
(hereafter 'the PGC') holding that the space at the rear
portion of the shop of the complainant (respondent no.2)
has been encroached upon.
2. The learned counsel for the petitioner points out that
respondent no.2 had preferred a suit (being suit no.CS
217/2014 which is renumbered as CS No.99191/2016)
and the application for interim relief filed by the
plaintiff therein for a similar relief was rejected on
15.05.2014. She pointed out that an appeal was also
preferred by the plaintiffs therein (including respondent
no.2) but the said appeal was also rejected by an order
dated 09.11.2015. The petitioner's grievance is that the
aforesaid orders have not been considered by the PGC.
3. In view of the above statement, this Court consider it
apposite to remand the matter to the PGC to reconsider
afresh after affording the concerned parties a reasonable
opportunity to be heard. Accordingly, the impugned
orders are set aside and the PGC is directed to
reconsider the matter afresh and pass an appropriate
order after hearing the parties.
4. It is clarified that this Court has not expressed any
opinion as to the merits of the petitioner's contention
and all contentions of the parties are kept open.
5. It is also clarified that this order would not preclude
the concerned authorities from removing the petitioner
from the site in question, if not already so done, if they
are otherwise entitled to do so in law.
6. The petition alongwith the application is disposed of."
9. Reading of the order passed by learned Single Judge would show that
after noting the submissions of the parties, the matter was remanded
back to the Public Grievance Commission to consider the matter
afresh after affording reasonable opportunity to all the parties.
10. Counsel for the petitioner has also placed reliance on the order dated
29.09.2014 passed by NDMC.
11. Counsel for the respondent submits that much water has flown
thereafter and as of now no protection can be granted to the petitioner.
12. Counsel for the petitioner contends that the MCD has been shifting
their stand in their counter affidavit filed in W.P. (C) 7680/2013.
13. After some hearing in the matter, there is unanimity that TVC has
been formed and the appropriate authority to redress the grievance of
the petitioner would be the TVC. Accordingly, liberty is granted to the
petitioner to approach the TVC with all supporting documents. We
direct the TVC to consider the case of the petitioner in the light of the
documents, which may be produced, unaffected by any of the
observations made in the orders passed from time to time.
14. Without expressing any opinion on the merit of the matter, the writ
petition is disposed of.
G.S.SISTANI, J.
SANGITA DHINGRA SEHGAL, J
OCTOBER 09, 2018/ck
