Delhi High Court
Suleman Abbas & Ors. vs North Delhi Municipal ... on 24 January, 2022
$~58.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 24.01.2022
% W.P.(C) 1403/2022
SULEMAN ABBAS & ORS. ..... Petitioners
Through: Ms. Rekha Aggarwal, Advocate.
versus
NORTH DELHI MUNICIPAL
CORPORATION & ORS. ..... Respondents
Through: Ms. Monika Arora, Advocate for
respondent No. 1/ Nr.DMC.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE JASMEET SINGH
VIPIN SANGHI, J. (ORAL)
CM No. 4043/2022
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
W.P.(C) 1403/2022 and CM No. 4042/2022
3. The petitioners have preferred the present writ petition to seek a writ
of mandamus to respondent No. 1/ North Delhi Municipal Corporation
(„Nr.DMC‟) not to disturb, or create obstacles in the business activities of
the petitioners on the alternate Tehbazari sites allotted to them vide order
dated 29.12.2021. They seek a direction for either withdrawal, or
quashment of the letter dated 14.01.2022 issued to the petitioners to remove
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:27.01.2022 16:14
the temporary tin roof structures placed by the petitioners on the Tehbazari
sites allotted to them on 29.12.2021.
4. The case of the petitioners is that they had been re-located for the
purpose of re-development, and upon completion of the re-development
activity, they have now been re-allotted the space for carrying on their
hawking and vending activity by the Nr.DMC vide order dated 29.12.2021.
5. We may notice that almost the terms and conditions of re-location, the
second condition imposed on the petitioners is that, "you will not raise any
structure at the site".
6. What the petitioners have done is to place temporary lockable
structures with shutters at the hawking and vending sites allotted to each of
them. The photographs of the temporary structures placed by the petitioners
have been placed on record at pages 69 and 70. We deem it appropriate to
reproduce the photograph at page 70 of the record, which appears as
follows:-
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:27.01.2022 16:14
7. The respondents have issued a notice dated 14.01.2022 to the
petitioners directing them "to remove the structure raised at the relocated
Tehbazari site at Footpath of Red Light in between Lothian Bridge &
Recruitment Office (Footpath of Nagpal Dairy Site Corner) within two days
and make it open to sky failing which the same will be removed by the
department on your risk and costs". The said notice has driven the
petitioners to this Court to seek the aforesaid reliefs.
8. The submission of Ms. Aggarwal - learned counsel for the petitioners,
firstly, is that the Supreme Court, in its order dated 06.02.2007 passed in
Sudhir Madan & Ors. Versus MCD & Ors., W.P.(C) 1699/87, had, inter
alia, observed as follows:-
" In sub para (e) of paragraph (D), it is provided that the
tehbazari/vending site shall measures 6' X 4' and open to sky. The
Municipal Corporation proposes to allow the tehbazari/vending
sites to be covered wherever possible, for which a standard design
will be evolved by the Corporation. The expense on this account
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:27.01.2022 16:14
shall be borne by the allottee. This has been proposed with a view
to prevent illegal extension of tehbazari sites and also with a view
to maintain uniformity.
We would like to add, that while doing so, no permanent
structure shall be raised. The tehbazari/vending sites may be
covered in such a manner as to identify and demarcate the area
available for tehbazari and with a view to afford protection
against the elements to the allottee(s) and their goods lying within
the allotted site.
We also suggest that necessary provision be made in the
Scheme for taking strict action against any allottee found to
change or alter the structure raised by the Corporation. If at any
time, it is found that any change or alteration in the structure has
been made by the allottee, his license may be canceled"
9. Ms. Aggarwal submits that the aforesaid direction of the Supreme
Court itself shows that the Municipal Corporation proposed to allow the
Tehbazari/ vending sites to be covered - wherever possible, for which a
standard design would be evolved by the Corporation.
10. Ms. Aggarwal submits that the MCD came up with a public notice
regarding squatters/ street vendors/ weekly bazaars on 17.08.2007 inviting
applications in terms of the order passed by the Supreme Court in Sudhir
Madan & Ors. Versus MCD & Ors., I.A. No. 394 in I.A. No. 356 in
W.P.(C) No. 1699/87. She submits that the scheme framed by the MCD for
Squatters/ Hawkers - 2007 under the National Policy on Urban Street
Vendors - 2007, inter alia, provided that "Tehbazari/ Vending site shall
measure 6' X 4' and will be covered by a standard design in such a manner
as to identify and demarcate the area available for tehbazari and with a
view to afford protection against the elements such as; Sun, Cold and Rain
to the allottee (s) and their goods lying within the allotted sites. The expense
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:27.01.2022 16:14
on this account shall be borne by the allottee. On the proposals from the
Zones, site-wise standard designs will be provided by the Chief Architect of
MCD alongwith designs for moving carts, auto-rickshaw three-wheelers and
four wheelers ".
11. Ms. Aggarwal submits that the MCD itself came out with its design of
the temporary structures to be provided to the hawkers and vendors in terms
of the aforesaid policy, which itself is referable to the order passed by the
Supreme Court. She submits that a comparison of the design prepared by
the MCD, with the temporary structure placed by the petitioners at the
Tehbazari sites, shows that there is no difference and the petitioners have
strictly complied with the same design as approved by the MCD.
Ms.Aggarwal, therefore, submits that there is no illegality in the conduct of
the petitioners in placing the temporary structures at their hawking and
vending site, which has been done only with a view to save the petitioners
and their goods and wares from the vagaries of weather, and to protect their
goods.
12. We have heard Ms. Aggarwal and we are of the view that there is
absolutely no merit in the present petition. Firstly, the communication dated
29.12.2021 issued to the petitioners, re-locating the petitioners, expressly
states that they shall not raise any structure at the site. Contrary to the said
condition, the petitioners have gone ahead to bring the structures with
shutters and a lockable door, and placed them at the hawking and vending
sites. This itself tantamounts to breach of the condition imposed upon them
in the order dated 29.12.2021.
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:27.01.2022 16:14
13. Secondly, the concept of Tehbazari and Street Hawking and Vending
does not envisage that the hawkers or vendors would occupy - round the
clock, any particular place, or erect on the allotted site any structure -
whether permanent or temporary, much less, on their own. All that the
Supreme Court observed in the aforesaid order was that the MCD was
proposing to allow the Tehbazari/ vending sites to be covered - wherever
possible, for which standard design would be evolved by the Corporation. It
does not mean that the hawkers and vendors can occupy permanently, or
even round the clock, Tehbazari/ vending sites. The activity of Tehbazari
/vending itself postulates that the activity would be carried out only on the
days the said activity is permitted; during the times of the day when such
activity is permitted, and within the area, within which the activity is
permitted. There is no question of any hawker or vendor, staking a claim to
occupy any public space in the name of hawking and vending, round the
clock, by placing a lockable structure with shutters- temporary or otherwise,
at the site and converting the same into a shop, where the hawker/ vendor
and his goods can permanently remain round the clock.
14. In fact, the order dated 06.02.2007 passed by the Supreme Court itself
cautions that no permanent structure shall be raised, and the Tehbazari/
vending sites may be covered in such a manner as to identify and demarcate
the area available for Tehbazari and with a view to afford protection against
the elements to the allottee(s) and their goods lying within the allotted site.
The said protection can be only for the permitted duration of vending, and
cannot be round the clock by creation, erection, or installation of a covered
lockable kiosk with shutters. In fact, the Supreme Court also observed that
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:27.01.2022 16:14
the scheme should provide for taking strict action against any allottee found
to change, or alter the structure raised by the Corporation. Thus, even if
some kind of structure were to be raised by the Corporation, that would
necessarily have to comply with the fundamental principles of hawking and
vending taken note of hereinabove, and it was not left to the Tehbazari
allottee to create, or place any structure, much less a lockable structure with
shutters - on his own and as per his own sweet will. Such action - even the
Supreme Court observed, may lead to cancellation of the license.
15. Ms. Aggarwal has also submitted that several other Tehbazari holders
have erected similar structures in several parts of the city. If that has been
done, even that is illegal, and even that cannot be permitted. Two wrongs do
not make a right, and there is no concept of negative equality.
16. It is clear to us that the MCD itself appears to have misunderstood the
concept of street hawking and vending - if the submission of Ms. Aggarwal
were to be accepted, that they have themselves come up with the design of a
lockable kiosk with shutters, which may be erected at the Tehbazari site to
provide protection against inhospitable weather conditions to the hawkers
and vendors. A Tehbazari license is merely a hawking and vending license
on the street. The street is meant primarily for the use of the people to
commute - either on foot or in a vehicle - motored or manually driven. The
Tehbazari license does not give a right to the licensee to claim or usurp any
part of the public street, or foot path, for his or her exclusive use by placing,
either permanent or temporary structure. Just like the public, the hawker/
vendor can use the street , however, for carrying out the activity of hawking/
vending on the street, he/ she must obtain a license. He may keep/ display
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:27.01.2022 16:14
his goods and wares strictly in terms of the license However, that license
cannot be construed as an allotment of a parcel of land on the street for the
exclusive use of the licensee. The installation of the lockable kiosk with
shutters- of the kind placed by the petitioner, seeks to do that. We may also
observe that the kiosks/ structures in question are - in the context of the
rights of the pedestrians and other users of streets, pathways and public
spaces, permanent and cannot be considered as temporary. This is because
these structures/ kiosks - though not rooted and embedded into the earth, are
not capable of being moved by persons while use in public streets, pathways
and spaces, if they are found to be causing obstruction. They would require
several people to move them from one place to another, and may even
require machinery and equipment for being moved. Thus, for all practical
purposes they are permanent.
17. The state of the city today is alarming vis-à-vis hawking and vending
activities which are taking place in already crowded markets. The open
spaces meant for pedestrians, commuters and market goers have been
completely taken over by the street vendors and hawkers, to the grave
detriment of the citizenry.
18. Recently, we had occasion to look at photographs of hawkers and
vendors in Chandni Chowk area, carrying on their hawking and vending
activity on open pavements and path ways. We found that the said activities
were being carried out in a completely unregulated manner, and hawkers
and vendors have sprawled themselves, and their goods, at will, all over the
place, including right in the middle of the walk ways and even under the bus
shelter.
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:27.01.2022 16:14
19. If the submission of Ms. Aggarwal were to be accepted, it would
mean that those granted Tehbazari licenses would then be in a position to
bring lockable structures with shutters - of the kind that the petitioners have
brought on the hawking and vending sites, and place them round the clock
under the garb of protection from the vagaries of weather thereby, in effect,
taking over the open space for their exclusive use and occupation, and taking
away the open space for use by others, even during the times when they are
not supposed to hawk, or vend at the allotted sites. This is completely
impermissible.
20. We, therefore, dismiss the present petition with costs quantified at
Rs.5,000/- payable by each of the petitioners. The costs be deposited with
the DSLSA within two weeks.
VIPIN SANGHI, J
JASMEET SINGH, J
JANUARY 24, 2022
kd
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:27.01.2022 16:14
