Uttarakhand High Court
Vijay Pal Singh And Others ... vs State Of Uttarakhand And Others on 5 November, 2024
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2024:UHC:8138-DB
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE ACTING CHIEF JUSTICE MR. MANOJ KUMAR TIWARI
AND
HON'BLE MR. VIVEK BHARTI SHARMA, J.
WRIT PETITION (M/S) No.685 of 2022
Vijay Pal Singh and others ...Petitioners
Versus
State of Uttarakhand and others ...Respondents
With
WRIT PETITION (M/S) No.801 of 2022
Abhid Hussain & others ...Petitioners
Versus
State of Uttarakhand and others ...Respondents
With
WRIT PETITION (M/S) No.803 of 2022
Manoj Kumar Sahu and others ...Petitioners
Versus
State of Uttarakhand and others ...Respondents
With
WRIT PETITION (M/S) No.806 of 2022
Arun Kumar ...Petitioner
Versus
State of Uttarakhand and others ...Respondents
With
WRIT PETITION (M/S) No.846 of 2022
Asha Pal ...Petitioner
Versus
State of Uttarakhand and others ...Respondents
With
WRIT PETITION (M/S) No.850 of 2022
Sanjay Sonkar and others ...Petitioners
Versus
State of Uttarakhand and others ...Respondents
With
WRIT PETITION (M/S) No.1004 of 2022
Hemant Singh Bisht and others ...Petitioners
1
2024:UHC:8138-DB
Versus
State of Uttarakhand and others ...Respondents
Counsel for the petitioners : Mr. T.A. Khan, learned senior counsel,
assisted by Mr. Mohd. Shafy, learned
counsel.
Counsel for petitioner in WPMS Mr. Yogesh Upadhyay, learned
Nos.846 of 2022 and 850 of 2022 counsel, holding brief of Mr. Lalit
Sharma, learned counsel.
Counsel for State of Uttarakhand Mr. B.S. Parihar, learned Standing
Counsel, with Mr. Gajendra Tripathi,
learned Brief Holder.
Counsel for respondent no.7 Mr. Ashish Joshi, learned counsel.
JUDGMENT :
(per Mr. Manoj Kumar Tiwari, A.C.J.)
Since common question of facts and law are
involved in these writ petitions, therefore, these petitions
are being heard and decided together. However, for the
sake of brevity and convenience, facts of WPMS No.685
of 2022 are being considered and discussed.
2. By means of this writ petition, petitioners have
sought the following reliefs:-
It is, therefore, most respectfully prayed
that this Hon'ble Court may very graciously be
pleased:-
I. To issue a writ order or direction in the nature of
mandamus commanding the respondents not to
evict the petitioners from their respective shops
situated near Ghasmandi, behind Police Outpost,
Mangal Parao, Haldwani, till the respondents
construct a meat market for carrying on the
business of selling the mutton and chicken in retail.
II. To issue a writ order or direction in the nature
of mandamus commanding the respondents to
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provide the accommodation for the purpose of
meat market for carrying on the business of selling
the mutton of Jhatka/Halali Category as well as for
the purpose of selling the Chicken.
III. To issue a writ order or direction in the nature
of certiorari quashing the notice dated 31-03-2022,
issued by Nagar Nigam, Haldwani, which has been
affixed on the shop of the petitioners on 01-04-
2022 (contained as Annexure no. 1 to this petition)
"III-A. To issue a writ, order or direction in the
nature of mandamus commanding the
respondents to restore the possession of the
petitioners on the same place where the shops
of the petitioners were in existence till 04-04-
2022 at Near Ghasmandi Behind Mangal Parao
Police Outpost, Haldwani District Nainital.
III-B. To issue a writ, order or direction in the
nature of mandamus commanding the
respondents to regularize the possession of the
petitioners at the spot where the shops of the
petitioners were in existence till 04-04-2022,
on the same terms and conditions on which the
possession of other persons whose shops are
adjacent to the shops of the petitioners, has
been regularized.
IV. Any other relief which this Hon'ble Court
may deem fit and proper, may kindly be
awarded in favour of the petitioner and against
the respondents.
V. Award the cost of the petition in favour of
the petitioner and against the respondents.
3. Petitioners were running meat shops in
Ghasmandi, near Fish Market at Haldwani, District
Nainital, after obtaining licence from Nagar Palika and
other concerned authorities. According to them, they
had constructed kiosks over the foot path near Junior
High School, known as Balvidya Niketan. In WPMS
No.1004 of 2022, petitioner no.1 is running a restaurant
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and petitioner nos.2 to 4 were running tyre repairing
shops at Tikonia Road, at Haldwani, District Nainital.
4. Petitioners are aggrieved by the eviction
notice issued to them by Municipal Commissioner,
Haldwani on 31.03.2022. In the said notice, it was
alleged that petitioners have constructed kiosks in
violation of provisions contained in the Uttarakhand
Municipal Corporation Act, 1959, as applicable in the
State of Uttarakhand, and due to the constructions so
raised by them, movement of traffic is obstructed and
filth is also strewn all around the place and petitioners
were asked to remove their structures before
04.04.2022, failing which, the same was to be removed
at the cost and expense of the petitioners.
5. Learned Senior Counsel for the petitioners
submits that writ petitions were mentioned and filed
before this Court on 04.04.2022, and the matter was
heard on the same day after lunch, however, before the
matter could be heard, municipal authorities demolished
the construction raised by the petitioners. Thus, he
submits that it was an act of high-handedness on the
part of the authorities.
6. Learned counsel for the respondent/Municipal
Corporation Mr. Ashish Joshi, has drawn our attention to
the contents of notice dated 31.03.2022. A perusal
thereof indicates that petitioners were asked to remove
their constructions before 04.04.2022. Thus, he submits
that there was nothing wrong in removing the
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constructions raised by petitioners on 04.04.2022, as
the deadline had expired on 03.04.2022.
7. Learned Senior Counsel for the petitioners
submits that the act of municipal authorities is violative
of sub-section (3) of Section 3 of the Street Vendors
(Protection of Livelihood and Regulation of Street
Vending) Act, 2014, which reads as under:-
"3. Survey of street vendors and
protection from eviction or
relocation. -
(1)....
(2)....
(3) No street vendor shall be evicted or, as
the case may be, relocated till the survey
specified under sub-section (1) has been
completed and the certificate of vending is
issued to all street vendors."
8. Learned Senior Counsel for the petitioners
also relies upon the provisions contained in Section 18
(3) of the aforesaid Act, which reads as under:-
"18. Relocation or eviction of street
vendors. -
(1)....
(2)....
(3) No street vendor shall be relocated or
evicted by the local authority from the place
specified in the certificate of vending unless
he has been given thirty days' notice for the
same in such manner as may be specified in
the scheme.
9. The expression "street vendor" is defined in
Section 2 (l) of the aforesaid Act, which reads as under:-
(l) "street vendor" means a person engaged in
vending of articles, goods, wares, food items
or merchandise of everyday use or offering
services to the general public, in a street, lane,
side walk, footpath, pavement, public park or
any other public place or private area, from a
temporary built up structure or by moving
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from place to place and includes hawker,
peddler, squatter and all other synonymous
terms which may be local or region specific;
and the words "street vending" with their
grammatical variations and cognate
expressions, shall be construed accordingly;
10. By referring to the said definition, learned
counsel for the Municipal Corporation submits that a
person engaged in vending of articles, goods in the
street lane side walk or from a temporary built up
structure alone qualifies to become a street vendor. He
submits that since petitioners raised permanent cement
structures by using brick and mortar, for running
business, therefore, they do not fall within the definition
of street vendors, therefore the protection given to
street vendors by Street Vendors (Protection of
Livelihood and Regulation of Street Vending) Act, 2014
is not available to them.
11. Learned counsel appearing for the Municipal
Corporation further submits that survey was made by
the Street Vending Committee in the year 2016,
however, petitioners did not register themselves as
street vendors for reasons best known to them, and in
the list of street vendors containing 1015 names, which
was prepared, names of the petitioners do not figure.
12. Learned Senior Counsel for the petitioners,
however, submits that neither any applications were
invited nor any notice was given to petitioners regarding
the survey made by the Street Vending Committee,
therefore, petitioners cannot be blamed for not getting
themselves registered; he further submits that
2024:UHC:8138-DB
Ghasmandi area, near Fish Market at Haldwani, District
Nainital, where the shops run by the petitioners were
situate was not included in the vending zone, therefore,
the name of the petitioners were not included in the list,
as they were not found eligible.
13. Learned Senior Counsel for the petitioners
further submits that petitioners were subjected to step
motherly treatment inasmuch as shops adjacent to
petitioners shops were left undisturbed and the shops
belonging to petitioners alone were demolished. Answer
to this submission given by learned counsel appearing
for the Municipal Corporation is that there are three
shops belonging to the Municipality which were given on
rent to the meat sellers, those shops were not disturbed
during the demolition drive, as those were legally
constructed, while petitioners are tresspassers who have
encroached upon public footpath by constructing the
kiosks, which is obstructing movement of public on the
road.
14. Be that as it may. It is not in dispute that the
structures from which the petitioners were running their
shops have been removed. There is nothing on record to
substantiate the claim regarding title of the petitioners
over the land in question. The land belongs to the State
Government. Now relief of rehabilitation alone can be
granted to the petitioners.
15. Mr. Ashish Joshi, learned counsel appearing
for the Municipal Corporation submits that the Street
Vending Committee has undertaken the exercise of
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identifying vending zones and the petitioners' case for
rehabilitation shall be considered as per law.
16. We, therefore, dispose of the writ petitions
with direction to the concerned authorities in the
Municipal Corporation, Haldwani - Kathgodam to
examine claim of the petitioners' for rehabilitation as per
law.
17. We hope and expect that decision shall be
taken by the competent authority within a period of four
months from the date of production of certified copy of
this order.
______________
MANOJ KUMAR TIWARI, A.C.J.
___________________
VIVEK BHARTI SHARMA, J.
Dt:05th November, 2024
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Date: 2024.11.08 16:24:05 +05'30'
