IN THE HIGH COURT OF DELHI CM(M) No.1622/2007 # Virender Pal & Ors. Petitioners through: Ms.Suman Chouhan, Adv. Mr.Jivesh Kumar, Adv. VERSUS $ Delhi Development Authority & Ors . ........ Respondents through: Ms.Sangeeta Chandra for DDA. Mr.Ajay Arora & Mr.Kapil Dutta for MCD. % DATE OF DECISION: 2 1.01.2008 CORAM: * Hon'ble Mr.Justice Pradeep Nandrajog Whether reporters of local papers may be allowed to see the judgment? To be referred to the Reporter or not? Whether judgment should be reported in Digest? PRADEEP NAN DRAJOG, J. 1 For orders see CM(M) No.1388/2007. 11 January 21, 2008 (PRADEEP NANDR JOG) d.k.bainsla JUDGE Signing Date:03.07.2024 15:44:00 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified IN THE HIGH COURT OF DELHI CM(M) No.1388/2007 # Prem Shankar Gupta & Ors. Petitioners through: Mr.Kirti Uppal, Adv., Mr.Ajit Dayal, Adv. and Ms.Anamika Ghai, Adv. VERSUS $ Delhi Development Authority & Anr . ........ Respondents through: Ms.Sangéeta Chandra for DDA. Mr.Amit Paul for MCD. CM(M) No.1395/2007 if Rajesh & Ors. Petitioners through: Mr.Kirti Uppal, Adv., Mr.Ajit Dayal, Adv. Ms.Anamika Ghai, Adv. VERSUS $ Delhi Development Authority & Anr. ....... Respondents through: Ms.Sangeeta Chandra for DDA. Mr.Amit Paul for MCD. CM(M ) No.1622/2007 # Virender Pal & Ors. Petitioners through: Ms.Suman Chouhan, Adv. Mr.Jivesh Kumar, Adv. VERSUS $ Delhi Development Authority & Ors. ........ Respondents through: Ms.Sangeeta Chandra for DDA. MrAjay Arora & Mr.Kapil Dutta for MCD. % DATE OFDECISION: 21.01.2008 CORAM * Hon'ble Mr.Justce Pradeep Nandrajog CM(M)Nos.!388, 1395& 1622 of2007 Page No.1 of 23 / Whether reporters of local papers may be allowed to see the judgment? To be referred to the Reporter or not? Whether judgment should be reported in Digest? PRADEEP NANDRAJOG, J. By a common order I propose to dispose of CM(M) Nos.1388/07, 1395/07 and 1622/07 which have alrnöst identical facts and raise similar questions of law. 1 The petitions have been filed against the common order dated 12.09.07 passed by Sh. S.S. Handa, ADJ, Delhi in Appeal No.MCA 7/07 titled "Prem Shankar Gupta & Ors. vs. DDA & Anr.", MCA No.8/07 titled "Virender Pal Singh & Ors, vs. DDA" and order dated 2.3.2007 passed by the Court of Sh.Brijesh Kumar Garg, Commercial Civil judge, Delhi in Suit Nos.1404/05 and 1454/06. It appears that one set of plaintiffs have chosen to file two different CM (Mains) for the reason in respect of two proceedings which commenced, three petitions have reached this court. The learned Trial Judge has dismissed the applications filed for interim injunction. The appellate judge has affirmed the said order passed by the learned trial judge. Before proceeding to deal with the legal submissions made in the petitions it would be necessary to st out the factual matrix. The petitioners herein filed two civil suits praying (.M(M) Nos. 1398, 1395 & 1622 of' 2007 Page No.2 ol 23 for a decree of permanent and mandatory injunction wherein, claiming themselves to be hawkers/squatters/running small and petty business/tehbazarj kiosks of tea, eatables and other food items and daily needs items such as clothes etc. on the pavements, footpaths, open space in the vicinity of Nehru Place Commercial Complex, Delhi for the last about 20 years. It was contended that initially the area fell within the jurisdiction of MCD and that MCD has transferred the said area to DDA for maintenance. It was pleaded that the petitioners have been paying tehbazari fee to the MCD for the site occupied by them and that MCD has been issuing receipts to the petitioners, thereby acknowledging their right to carry on business from the site in respect whereof tehbazari right ha been conferred upon them. It was pleaded that plaintiff: appeared before the Chopra Committee and made their representations but the representations have not yet been decided and no rejections have been received by them till date of the suit. 6. Petitioners instituted the suit seeking a restraint order from the Court against the defendants from dispossessing them from the place of business allegedly occupied by them. They also sought directions to be issued requiring defendants to allot alternative stalls to the petitioners within the Nehru Place Commercial Complex on payment of nominal amount of money. CM(M) Nos,1388, 1395 & 1622 of 2007 Page No.3 of23 7. In the written statement filed by DDA it was pleaded that Nehru Place District Centre had fallen into disarray and on 18.4.2002, in a meeting held under the Chairmanship of the Hon'ble Lt. Governor, Delhi it was decided that the Nehru Place Commercial Complex would be transferred to DDA. For improving the conditions at Nehru Place Commercial Complex the following decisions were taken:- The entire Nehru Place area will be Zero Tolerance Zone where no violation of law would be permitted. All encroachments whether in right of way or on piazzas or in common areas to be removed by MCD (now DDA) immediately and ensure that these do not come up again, The complex of Nehru Place Commercial Complex to be transferred back to DDA for its maintenance in I future. 8. It was further pleaded by DDA that in compliance with the above decision the maintenance services of the District Centre was transferred to DDA vide order dated 4.6.2002. That the Engineer Member, DDA inspected the Nehru Place Commercial Complex and ordered that all vendors from the piazza should be removed and not allowed to come back to avoid obstruction to the pedestrians and visitors in the complex as well.as to keep the complex neat and clean. 9. It was pleaded that with the help of some of their CM(M)Nos.1388. 1395& 1622 of2007 Page No.4of23 (' ) a leaders, petitioners were entering the complex daily in the morning along with other hawkers and were encroaching upon and occupying the open spaces meant for the public on the main piazza and the adjoining area in the corridors, verandas, galleries etc. causing obstruction to the pedestrians/Visitors and making the entire complex dirty and unhygienic causing nuisance to the public. It was pleaded that the petitioners were encroacherS; having no right or title over the suit land and were thus liable to be evicted. That none of the petitioners had any permission1 license or regular tehbazari from MCD and under the guise of the suit were claiming a decree of declaration that they were entitled to enter and hawk their goods. It was pleaded that all the eligible vendors who had tehbazari rights under MCD or identity cards issued by DDA had already been allotted platforms/shops at Nehru Place, Tilak Nagar, Chootti Subzi Mandi and East of Kaitash. Since the petitioners were not entitled, they did not fall under the list of allotteeS. In the light of the decisions in Sag dan Sing h ' s case and Gainda Ramis case, it was pleaded that the petitioners had no right to' carry on business in a "Zero Tolerance Zone" and had no justiciable rights much less any rights for tehbazari or an alternative site. It was pleaded that all the encroachments were cleared in 2002, thus, there was no prima fade case in favour ofhe petitioners and the suit as well as CM(M) Nos.1388, 1395 & 1622 of 2007 Page No.5 of 23 the interim application were liable to be dismissed. ii. The MCD had also filed a written statement though apparently not on record. After going through the pleadings, documents ad the submissions made by the parties, both the Courts below have held that the petitioners (plaintiffs in the suit) being hawkers, squatters running small and petty business ha'e failed to establish any prima fade case in their favour. It has been held that they have not been able to show any right toa specific place or space. It has been held that there exists no document giving them any right to any specific site. Taking note of the judgments of the Honbie Supreme Court reported as (1992) 2 5CC 458 SaudanSingh vs. NDMC; (1993) 3 SCC 178 Gainda Ram & Ors. vs. MCD & Ors. and the final orders passed by the R.C.Chopra Committee wherein, it was clarified that the decision by R.C.Chopra Committee shall be treated as final and binding on the squatters concerned as well as on the MCD, the learned courts below have held that it was too late in the day for the petitioners to make fresh representations and claim.that their cases were pending before the said Committee and have not been considered. It has been held that the documents filed by the petitioners indicate that the petitioners were not regular tehbazari holders and were holding casual tehbazari on weekly holidays, festivals etc. and that they were not paying licence ('M(M) Nos.l38, 1395 & 1022 uI 2007 I'ugc No.6 of23 fee/tehbazari to the respondents on a continuous and regular basis. It has been held that in case the petitioners were A. occupying the sites in the year 1992 or were doing business or were squatting or hawking at the Nehru Place complex in the year 1992, then they should have approached the R.C. Chopra Committee for redressal of their grievances It has been held that since no such documents were placed on record it could be presumed that none of the petitioner had approached the Redressal Committee for redressal of their grievances. CM(M) No.1388/2007 and CM(M) No.1395/2007 came up for hearing on 12.10.2007, on which date this Court was pleased to issue notice in the petitions and granted a stay of dispossession in favour of the petitioners. A reply has been filed by DDA enclosing therewith documents placed before the learned Courts below, reiterating that the Nehru Place District Centre Complex was a 'Zero Tolerance Zone' where no violation of law was permitted. That demolition was carried out in the entire complex on 8.3.2007 and 9.3.2007 after the vacation of the interim orders on 2.3.2007 by the learned Trial judge and no hawker was allowed to squat in the said area. It has been stated that the petitioners were not regular tehbazari holders and were not entitled to any alternative site, since, the eligible h awkers/squatters had already been given alternative sites by the DDA and the MCD in the year 2002 when the entire area CM(M) Nos.1398, 1395 & 1622 of 2007 Page No.7 of 23 was cleared of encroachments. It has been pleaded that after the removal of the unauthorized vendors in the area in cuestion, nobody was allowed to operate any kind of stall/tehbazari, kiosks in the open piazzas or on pavements and that the Fire Officer, Delhi Fire Services has warned that due to unauthorized vendors on the road it was very difficult to a- approach the building located at District Centre, Nehru Place Complex for fire appliances in case of any emergency. 16. DDA moved applications seeking a vacation of the interim order on the ground that after the rejuvenation work af Nehru Place Commercial Complex was initiated in 2002 the petitioners have been trying to encroach on the open space time and again. It is pleaded that the petitioners were again I removed from the site in question after the interim order was vacated by the Trial Court on 2.3.2007 and that the entire complex was cleared by DDA on 8.3.2007 and 9.3.2007 with the help of local police. It was pointed out that after obtaining the interim orders on 12.10.2007, petitioners of CM(M) No.13.88/2007 and CM(M) No.1395/2007 had re-trespassed into the site. 17. In the application it has addtionaIy been pleaded that pursuant to the transfer of Nehru Place District Centre to DDA on 18.4.2002 for rejuvenation, the layout plan has also been formulated after the administrative approval and expenditure was sanctioned in sum of Rs,3005.47 lacs. it was CM(M)Nos.1388. 1395 & 1622of 2007 Page No.8 o123 pointed out that the interim orders are hampering the development work. 18. In the reply to the application seeking vacation of the orders obtained on 12,10.2007, the petitioners have placed reliance upon the National Capital Territory of Delhi Laws (Special Provisions) Bill 2007 urging that the petitioners cannot be dispossessed in view of the same. Reliance has also been placed on para 11 of the decision of the Hon bie Supreme Court reported as 2007 (8) Scale 334 to urge that unless the National Policy of Urban Street Vendors becomes operational the petitioners cannot be removed from the present site. 19. Points urged above have been controverted in the. rejoinder filed by DDA. In the rejoinder DDA has placed reliance on clause 4(b) of the said Bill which states that during the period of operation of the Bill, no relief would be avaUabl to the hawkers and urban street vendors in case there is a specific public project for the clearance of land in question duly approved by the Central Government. DDA submits that the rejuvenation and redevelopment plan prepared by the DDA envisages setting up of more than 50 B.O.T. towers and other facilities in public interest in the piazza of Nehru F lace Complex. Administrative approval and expenditure sanction to the tune of Rs.3500.47 lacs has been received on 22.11,2004 and that an amount of Rs.5 crores has already been spent on CM(M)NOS.1388, 1395 & 1622 of 2007 Page No.9 of 23 F improvement of the piazza area which indicates that there is 2 clear public project which is being undertaken by DDA in respect of the site in question and the said public project is ir? the stage of implementation. Hence, it has been pleaded that no protection can be claimed by the petitioners under the said an Afore-noted pleadings were reiterated during arguments by learned counsel for the parties Ms.Sangeeta Chandra, learned counsel for DDA urged that the issue relating to the hawkers carrying on business activity has been considered at length by the Hon'ble Supreme Court in the judgments reported as (1992) 2 5CC 458 - Saudan Singh vs. 1'MC; (1993) 3 5CC 178 Gainda Ram & Ors, vs. MCD & Ors. Thereafter, the matter has currently been re- looked at again by the Hon'ble Supreme Court in the case of 'Sudhir Madan & Ors vs. MCD & Ors.' wherein orders dated 6.2.2007 and 17.5.2007 have been passed - reported as 2007 (8) Scale 334 and 339 - the MCD has identified hawking as well as non hawking zones. The Nehru Place District Centre is not a part of the hawking zone identified even by the MCD and therefore, there is no occasion left for there being any confusion of a no tolerance zone/no hawking zone being permitted to be used for hawking. Learned counsel for DDA further submitted that MCD had framed a scheme called the 'National Policy on Urban CM(M) Nos. 1388, 1395 & 1622 u12007 Page No.10 o123 Street Vendors-2004. The said scheme has been placed, before the Hon 1 ble Supreme Court and that the same has been closely examined and scrutinized therein. It was urged that after taking note of certain suggestions, final directions were i'uè by the Hon'ble Supreme Court. Counsel urged that the 'I' -I directions issued by the Hon'ble Supreme Court in the case of Sudhir Madan also took into consideration the various suggestions and difficulties pointed out on behalf of the hawkers. Thereafter, MCD has formulated its scheme for squatters/hawkers 2007 for implementation of the National Policy of Urban Street Vendor 2004 as modified by the orders of the Hon 1 ble Supreme Court. The counsel urged that some petitioners have applied under the scheme and therefore, it is not open to the petitioners to contend that hawking and squatting can be permitted in any manner other than the manner envisaged under the national policy. 23. Learned counsel further submitted that a detailed consideration of this entire scheme has been made by this Court recently in WP(C) No.8019/2007 kmit Kumar Gupta vs. I4CD & Ors along with Ii other writ petitions which have been dismissed by this Court vide order dated 29.11.2007. Counsel urged that the said decision notes the distinction between hawkers who have no regular tehbazari rights and regular tehbazari holders. It was urged that the decision notes that persons having regular tehbazari rights were already given ('M( M) Nus, 1388, 1395 & 1622 of 21)07 Pigc No, I I i 23 alternative sites by the DDA as well as by the MCD in the year 2002 when the area in question at Nehru Place was cleared of all encroachments. Counsel urged that as of today the only right of a person to claim a hawking site was to apply afresh under the scheme framed by the MCD and as approved by the Hon'ble Supreme Court for implementation of the National Policy of Urban Street Vendors-2004. Learned counsel categorically urged that none of the petitioners in CM(M) No.1622/2007 are hawking at the site in question. Counsel submitted that as the petitioners of the other two petitions, these petitioners will also encroach on the piazzas under the guise of the pendency of the instant petition. Learned counsel for MCD urged that no tehbazari rights have been given by the MCD in the Nehru Place area after 2002. The area is non hawking zone. However, counsel urged that being a public statutory body, the MCD wa's prepared to re-look into the claim of the petitioners who alleged that they had tehbazari rights and for this, learned counsel submitted that directions may be issued requiring petitioners to appear before the Additional Commissioner, Central Zone, Delhi at 11.00 am on 23.1.2008 with identity proof and all documents on which petitioners rely. Counsel submitted that the officer concerned would grant a personal hearing to such petitioner who appears before him and a CM(M) Nos.1388, 1395 & 1622 of 2007 Page No.12 of 23 reasoned deciion would be taken under communication to the petitioner who may collect the same on the date notified by the Additional Commissioner oncerned. It is trite that while deciding on the issue of interi'n injunction or stay, the Court must address itself to three issues; namely, prima fade case, irreparable loss and injury and lastly balance of convenience. To obtain an order for interim injunction in his favour, the applicant must make out a 'prima fade case' in support of right claimed by the applicant. The existence of a 'prima fade' right and infraction of such right is a condition precedent for grant of interim injunction. In the instant case, in order to obtain an injunction in their favour it is essential for the petitioners to first establish that prima facie they had a right to carry on the business under tehbaza1 in Nehru Place Commercial Complex. The issue relating to tehbazari rights allegedly claimed by the petitioners was dealt by the learned Trial Court. In para 9 of its decision the learned Trial Court has held as under: - 11 9. In the present case, the plaintiffs are alleging themselves to be the hawkers/squatters running their business/tehbazari etc. in the vicinity of the Nehru Place Commercial Complex and the perusal of the case file also shows that the said area had been declared by the defendants as 'no tolerance zone', in compliance of the orders of the Lieutenant Governor of Delhi. it is further observed that the plaintiffs are not the regular ('MM) Nos. 1389, 1395 & 1622 o12007 Page No. I T of 23 tehbazari holders and they are not holding casual tehbazari on weekly holidays, festivals/melas etc. and the plaintiffs are not paying the licence fee/tehbazarj to the defendants on continuous or regular basis. They are applying for tehbazari to the defendants for different periods and different dates and the perusal of the receipts clearly indicates that they are not the regular squatters/hawkers at Nehru Place Commercial Complex. Further more, only a few of the plaintiffs have given the representation to the defendants for consideration of their eligibility regarding the allotment of the alternative sites. None of the plaintiffs have approached the Chopra Committee for redressal of their grievances and in the considered opinion of this court, if the plaintiffs were existing in the year 1992 or were doing their tehbazari business or were squatting/hawking at the Nehru Place Complex in the year 1992 then, they should have approached the Chopra Committee for redressal of their grievances. The contentions of the counsel for the plaintiffs that the plaintiffs had approached the defendants cannot be sustained at this stage, in view of the specific directiOns of the Honble Supreme Court in the case of "Gainda • Ram & Ors v/S MCD & Ors" (supra), further more, it is not the case of the plaintiffs that, they have not applied under the Scheme of 1992 and their representations were not considered by Sh. R.C. Chopra Committee, but, on the contrary, they have claimed that, they have filed their . representations with the defendants but their representations have not been considered by the defendants and no intimation about the rejection of their representations has been made by the defendants to them till date. Therefore, in the considered opinion of this court, the plaintiff should have approached Sh. R.C.Chopra Committee for redressal of their grievances straight away and since, the Hon'ble Supreme Court has already passed the order, from time to time, monitoring the implement of its earlier orders in the case of "Gäinda Ram & Ors" (supra) this court is ofthe considered opinion that the • pjirthffs had miserably failed to establish a prima fade case in their favour. Further more, sine, the Hon'ble Supreme Court has already issued various directions regarding the implementation of its CM(M) Nos. .38, 39 & 1622 o!'2007 I'ge No.14 o123 directions in the case of "Saudan Singh & Gainda Ram & Ors" cases and has already directed that, all the applications, including the petitions of hawkerslsquatters should be filed only in aforesaid proceedings, it would not be appropriate for this Court to pass any stay orders in the present suit. it is pertinent to mention here that, a Civil Writ Petition No.647/2007 was preferred before the Hon'ble High Court of Delhi by one Sh. Mangal Singh on similar facts and the said Writ Petition has also been dismissed by the Hon'ble High Court, vide orders dated 24/01/2007, whereby, the Hon'ble High Court has also rejected the Writ Petition." In appeal, the Appellate Court has also dealt with the issue and agreed with the finding returned by the Trial Court that petitioners have failed to establish that prima fade had a right to carry out the business under tehbazari in Place Commercial Complex. In paras 10 and 11 of its decision the appellate court has held as under:- .. "io. While weighing the suits filed by the appeHants, I find that more or less each of the appellant has a different case. Someone is claiming to be having tehba.zari right. Someone has filed the documents of holding to Mela for a few days, some of them have fled the receipt of holding weekly bazar; some of them have filed the documents about putting up wares for festival seasons. Some of them have filed the documents pertaining to holding pheri, secondly, none of the appellant had laid specific right to any specific place. Some one claims to run business in kiosks, someone laid his claim about the stalls, someone about the shed, someone has claimed tehbazari site, someone occupying the pavement. Some claimed to occupy the footpath and someone open space. The relief sought for decree of permanent injunction is to restrain the defendant,, their agents, servants, assignees from dispossessing the plaintiffs/appellants from their present place of businesS/tehb8Za11/05I<5t5. Thus, no one claims to have specific place or CIv1(M) Nos.1388, 1395 8 1622 o12007 1 1agc No.15 o12i I I space. Similarly, in the mandatory injunction relief sought for is a decree of mandatory injunction directing the defendants/respondents to allow of mandatory injunction directing the defendants/respondents to allow alternative pucca kiosks, stalls within Nehru Place on payment of nominal amount of money on equal monthly