Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified >• >1 IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 21.09.2011 Pronounced on: .10.2011 i' W.PJCl 4743/2011 and 5254/2011 IN THE MATT'ERS OF SHIV NAFH CHOUDHARY RAM DASS Petitioner in W.P.(C) 4743/2011 Petitioner in W.P.(C) 5254/2011 Respondents versus NDMC & ORS. W.PJC) 2601/2011. 2602/2011, 3052/2011, 43^2/2.01i/ 4559/2011. 459372011. 4610/2011, 4650/2011, 4654649/2011. 4722/2011. 4739/2011, 5046/2011, 5024/2011, S258/2011 •- 5277/2011 4775/2011. 4827/2011, 4923/2011, 5257/2011. 5264/2011, 5402/2011, 5410/2011. 5247/2011. 5255/2Q11, 5157/2011, 5028/2011, .'^7fi1/20ll. 5262/2011, 5292/2011. 5312/2011, 5263/2011, 5317/2011, 5408/2011, 5403/201i. 5420/2011, 5405/2011, 5413/2011, S418/2011. 5423/2011, 5444/2011, • 5484/2011, 5485/2011. 5497/2011, 5498/.2Ml^ "".^504/2011/ 55Q5/2011. 5506/2011, 5507/2011. 5616/2011. B/2011. 5595/2011, 5614/2011, 5615Z2M1.. 56^38/2011- 5627/2011. 5630/2011. 5631/2011. 5643/2011,, 5645 5654/2011, 5656/2011, 5711/2011, 5717/2011, 5728/2011. 5729/2011. 5731/.2011, 5732/2011^ S731 i'2.Oil, 5738/2011, 5739/2011, 5/43/2011, 5761/20Xl-t. 57^5/2011. 5791/2011, 5794/2011, 5797/2011. 5798/2011. 5822/2011, 5911/2011,.. 5931/2011. 5933/2011, 5934/2011, '.'-sqfi.s/2011. 5966/2011, 5967/2011^ "^970/2011, 5974/2011, 6096/2011, 5918/2011. 5928/2011, 5935/2011. 5957/2011, 5968/2011. 5969/2011. 6100/2011. 6101/2011, •fiiS7/2013/ 6107/2011, 6108/2011. 6114/2011, 611572011. 61 i'r-/ 20 31. 6117.0011- 6118/2011, 6119/2011, 6120Z2Mi.. r^^'^"l1-"fil22/2011. 6123/2011. 6144/2011, 6250/2011^ 6270 / 201. 6271/2011. 6449/2011, 6527/2011, 6528/2011, 65"?9/2011, 6530/2011. 6531/2011, 6532/2011, 6533/2011^ 6534/2011, 6538/2011. 6555/2011, 5173/2011, 3181/201.1, 3189/2011. 3196/2011, 4340/2011, 4342i2011.- W.P.fC; 4743/2011, 5234/2011 &connected matters Page 1 of 28 -c. 4343/2011. 4344/2011. 4345/2011, 4349/2011, 4350/2011, 4352/2011. 4354/2011, 4356/2011. 4358/2011, 4359/2011, 4360/2011. 4361/2011. 4362/2011. 4363/2011, 4364/2011, 4365/2011. 4366/2011. 4367/2011. 4368/2011, 4369/2011, 4370/2011. 4371/2011. 4372/2011. 4373/2011. 4374/2011, 4375/2011. 4377/2011. 4387/2011. 4388/2011, 4389/2011, 4391/2011. 4392/2011. 4393/2011. 4395/2011, 4396/2011. 4397/2011. 4398/2011. -4399/2011. 4400/2011, 4402/2011, 4404/2011. 4405/2011, 4406/2011. 4407/2011, 4408/2011, 4409/2011. 4410/2011. 4412/2011, 4413/2011, 4414/2011, 5341/2011. 4847/2011. 4859/2011, 4887/2011, 4990/2011, 5063/2011, 50S9/2011. 5099/2011. 5114/2011. 5115/2011, 5117/2011. 5129/2011, 5139/2011, 5144/2011. 6667/2011, 6668/2011. 6669/2011. 6670/2011. 6684/2011. 6701/2011, 6708/2011. 6799/2011, 6824/2011. 6825/2011. 6826/2011. S827/2011. 6896/2011, 6901/2011. 6902/2011. 6903/2011. 6904/2011. 6905/2011, 6906/2011. 6907/2011. 6908/2011. S909/2011. (F!i2J10/2011. 6917/2011. 6919/2011. 6920/2011, 6921/2011,-5922/2011 and 6932/2011. Present: Mr. B. B. Sawhney, Sr. Advocate with Mr. Ankan Suri, Mr. Lakshay Sawhney, Mr. Ankur Suri and Mr. Sunil Kumar, Advocates for the petitioners. Mr. Sumit Kumar Singh, Mr. Anand Shailani, Mr. Satish Kumar Tripathi, Mr. N.K. Sahoo, Mr. R.N.Singh, Mr. M.R. Singh, Mr. Ramesh K. Mishra, Mr. Surender Pandit, Mr. Navjot Kumar, Mr. Mahendra Singh, Mr,Sunder La! Juneja, Mr. Pranesh, Mr. B.B. Bhatia, Mr. Navjot Kumar and Mr. Satish Chand Gupta, Mr. Pranesh, Mr. Sahil Kapoor, Ms. S. Fatima, Mr. Jagdeep Kr. v' Sharma, Ms. Rani Chhabra, Ms. Rupinder Kaur, Ms. Ferida Satarawala, Mr. R.N. Singh, Mr. Vikas Batra, Mr. V.P. Rana and Mr. Navjot Kumar, Advocates for the petitioners. Ms. Madhu Tewatia, Ms. Sidhi Arora, Mr. Vinod Kumar, Mr.Arjun Pant, Mr. Ashutosh Lohia and Mr. Vinod Wadhwa, Advocates for the respondent/NDMC. Mr. Najmi Waziri, Standing Counsel, Mr. Bhupesh Narula, Mr. Sanjay Sahay, Ms. Farida Satarwala Chopra, Mr. Sachin Datta, Mr. Abhimanyu Kumar and Ms. Rachna Saxena, Advocates for the respondent/GNCTD. Ms. Navratan Chaudhary, Mr. H.S. Sachdeva, Mr. D. W.P.fC) 4743/2011, S254/2011 & connected matters Page 2 of 28 V Rajeshwar Rao, Mr. Vikram Aggarwal and Mr. Shariq Mohammad, Advocates for the respondent/Delhi Police. CO RAM HON'BLE MSJUStlCE HIMA KOHLI 1. Whether Reporters of Local papers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? MIMA 1. • This common judgment shall, dispose of the petitions filed by the petitioners/vendors as the issues raised in these writ petitions are common. For the sake of convenience, facts of W.P.(C) 4743/2011 are taken note of. 2. ' The focus of the lengthy arguments addressed by both sides revolves around an order dated 15.07.2011 passed by the Supreme Court on some miscellaneous applications presented in W,P.(C) 1699/1987 entitled r^^inrlR Ram Qrs. vs. NDMC & Ors., which matter was decided on 08.10.2010 by issuing exhaustive directions. Before proceeding to deal with the respective arguments addressed by the learned counselsfor the petitioners/vendors and the respondent/NDMC, it would be appropriateto set out the aforesaidorder dated 15.07.2011,which is the bone of contention and is reproduced hereinbelow:- "Heard learned counsel for the applicants and perused the record. W.pf.CC)4743/2011,5254/2011&connectedmatters Page3 of28 Since judgment of this Court has so far not been implemented, inasmuch as appropriate legislation has not been enacted by the .competent legislature, we direct the parties to maintain the status quo as it is obtaining today." 3. It was the submission of the learned counsel for the respondent/NDMC that the aforesaid order issued by the Supreme Court, calling upon the parties to maintain status quo as obtaining on 15.07.2011, can only be interpreted to mean that the extensive directions issued earlier, on 08.10.2010, in the case of Gainda Ram (supra) reported as (2010) 10 see 715 shall continue to remain in operation, including the adjudicatory mechanism provided for by the NDMC in the scheme presented by it before the Supreme Court and approved in the said judgment, till the appropriate government enacts a law for regulating urban street hawkers and street vendors. It was stated that simply because the legislature has not enacted a law in this regard on or before 30.06.2011, as directed in the aforesaid judgment, it cannot be contended by the petitioners/vendors that there exists a vacuum and the said vacuum can no longer be filled up by continuing to regulate the vending activities in the NDMC jurisdictionin the manner as set out in the aforesaid judgment. 4. To give a brief background of the dispute, learned counsel for the respondent/NDMCwalked this Court through some prominentdecisionsof the Supreme Court rendered from time to time, which relate to pavement W.P.(C)4743/2011, 5254/2011 &connected matters Page 4 of 28 /' / y squatters/hawkers, starting from the decision in the case of Sodan Singh vs. NDMC & Qrs. reported as (1998) 2 SCC 727, the interim order dated 03.03.2006 passed by the Supreme Court in W.P,(C) 1699/1987 entitled Sudhir Madan &. Qrs. vs. l^CD, the final judgment in the case of Sudhir Madan fsupra) reported as (2009) 17 SCC 597 and lastly, the judgment dated 08.10.2010 passed in the case of Gainda Ram (supra). 5. Learned counsel for the respondent/NDMC vehemently opposed the prayer of the petitioners/vendors for grant of interim orders restraining the respondent/NDMC from removing them from the sites occupied by them till the enactment of an appropriate legislation, in terms of the directions issued by the Supreme Court in the, case of Gainda Ram (supra). She particularly referred to the observations made by the Supreme Court in paras 40 and 41 of the judgment in the case of Sodan Singh (supraX which dealt with the immediate eviction of unauthorized squatters/hawkers and laid emphasis on the fact that in the said case, the Supreme Court had directed removal of unauthorized squatters/hawkers without awaiting final allotment of sites to be allotted to eligible claimants at the places recommended by the Thareja Committee or suggested by the NDMC. 6^ Again, in the interim' order dated 03.03.2006 passed in Sudhir Madan's case (supra), the following observation made by the Supreme Court was highlighted by the counsel for the respondent/NDMC:- W.P.(C)4743/2011, 5254/2011 &connected matters Page 5 of 28 ••y "While we undertake this exercise, we direct the Authorities to see to it that those persons, who are carrying on hawking activities or who are squatting on public land without any authority, even in accordance with the present day scheme in force, are removed forthwith. This includes unauthorized hawking, squatting on public streets, footpaths and public parks, including playground. We direct the Delhi Administration to take steps immediately in collaboration with MCD and NDMC with necessary assistance from Delhi Police to 'clear the roads, streets, footpaths, parks etc. by unauthorized occupants/squatters/hawkers." 7. As to the judgment dated 17.05.2007 rendered in the case of Sudhir Madan Tsupral, much emphasis was laid by the counsel for the respondent/NDMC on paras 28 to 30 and 35, which are reproduced hereinbelow for ready reference:- "28. The New Delhi Municipal Committee has also submitted its Scheme. We have considered the Scheme submitted before us. The area which falls under NDMC does not create problems such as those in the areas under MCD. However, in the said Scheme reference has been made to persons who do not have permission under Section 225 or licence under Section 330 of the NDMC Act, 1994 but who are unauthorisedly continuing to carry on business as hawkers/street vendors. They have been described as those who are "tolerated" in the NDMC area. We fail to understand why any person who violates the law should be tolerated. Either they should be compelled to obey the law or the law may be suitably amended, if it is found to create undue hardship. The problemsneed to be addressedby the legislatureor the rulemaking authority. We, therefore, observe that if it is felt that the persons who fall in this category require special protection,the Act may be suitablyamended to cover their cases or else the number of such illegal squatters may increase from time to time. W.P.{C)4743/2011,5254/2011&connectedmatters Page 6of28 / /\ 29. There has been no serious objection to the Scheme submitted by NDMC which is a comprehensive scheme. Certain directions have, however, been sought for from this Court. We approve the Scheme submitted by NDIvjC. 30. It is subhnitted before us that the Schemes which have been approved by this Court must be subject to any Act or rules that may be framed in consonance with the National Policy on Urban Street Vendors. It goes without saying that we have approved the Schemes as framed by MCD and NDMC. If the legislature intervenes and frames another scheme or regulations governing such Schemes, that will certainly supersede the Schemes prepared by MCD and NDMC. It is well settled that any administrative action is always subject to law that may be framed by the competent legislature. 35. Subject to the aforesaid modifications/changes in the Schemes submitted by MCD and NDMC, the same are approved. The said authorities shall now take appropriate steps to implement the Scheme forthwith. In case of any difficulty faced by them in implementing the schemes, they shall have the liberty to apply to this Court." 8. Lastly, in the recent judgment in the case of Gainda Ram fsupra), learned counsel for the respondent/NDMC specifically relied upon paras 30, 32, 50 to 66 to state that the Supreme Court was conscious of the fact that a structured regulation and legislation is urgently required to control and regulate the fundamental right of hawking. She also pointed out that the three tier disputes redressal mechanism set out in the affidavit filed by the then Chairperson of the NDMC was taken note of by the Supreme Court in para 72 of the aforesaid judgment and in para 73, it was then observed as below:- W.P.(C)4743/2011,^ 5254/2011 &connected matters Page 7 of 28 ^0 "73. In paragraph 12 of the affidavit it has been stated that there shall be an Appellate Authority which shall attend to the redressal of grievances of squatters, hawkers, traders, residents or any other person by hearing appeals against the decision of the Vending Committee (Main). Paragraph 12 of that affidavit is set out below:- There shall be an Appellate Authority. On the forwarding of petitions received by the Chairperson, this Authority shall attend to redressal of grievances of squatters, hawkers, traders, residents or any other person. The Authority shall also hear appeals against the decision of Vending Committee (Main). Decisions of this Authority unless challenged before a Higher Forum or in any Competent Court, shall be final. This Authority shall be initially headed by a person appointed by the Chairperson having at least'10 years legal or judicial background. There can be more than one member in this Authority." 9. After making the aforesaid observations, in paras 74 to 76 of the judgment, the Supreme Court went on to observe as below:- "74. In the said affidavit, which was affirmed before this Court on 24'^'" August, 2010 it has been stated that NDMC shall comply with the orders which would be passed by the adjudicatory mechanism contemplated in the scheme and which has been approved by this Court for the NDMC area, unless such orders are made subject matter of challenge before a higher forum or in any other competent Court. 75. In view of such schemes, the hawkers, squatters and vendors must abide by the Dispute Redressal scheme mentioned above. There should not be any direct approach to this Court by way of fresh petition or lAs, bypassing the Dispute Redressal Mechanism provided in the scheme. v.- W.P.(C)4743/2011, 5254/2011 &connected matters Page 8 of 28 76. However, before 30'^'^ June, 2011, the appropriate Government is to enact a law on tine basis of the Bill mentioned above or on the basis of any amendment thereof so that the hawkers may precisely know the contours of their rights." 10. It was thus sought to be contended on behalf of the -V respondent/NDMC that there can be no vacuum as far as regulation of trade of street hawkers/vendors in the NDMC jurisdiction is concerned and the failure on the part of the legislature to abide by the timeline set out by the Supreme Court in the case of Gainda Ram fsupra), by putting in place a statute on or before 30.06.2011, cannot be interpreted by the petitioners/vendors to mean that they can continue their trade unhindered at any place of their choice in the NDMC jurisdiction, in an unregulated manner and without any obstruction or objection from the NDMC, 11. Learned counsel for the respondent/NDMC particularly referred to paras 74 and 75 of the aforesaid judgment to state that the dispute redressal scheme, noticed by the Supreme Court in para 75 was the one that was legally functioning in NDMC jurisdiction and which was taken note of by the Court in the preceding para 74. In other words, she stated that the scheme as set out in the affidavit dated 24.08.2010, filed by the then Chairperson of NDMC before the Supreme Court in Gainda Ram's case Csypra}, was the one which was finally approved by the Supreme Court. She further submitted that assuming, without admitting, that the W.P.(C)4743/2011, 5254/2011 &connected matters Page 9 of 28 V Mo dispute redressal sctieme set out by the NDIMC had lapsed on 30.6.2011, as clainned by the petitioners, then the NDI^C ^Act provides an adequate fallback to ensure orderly management of vendors in the area. Specific reference was made in this regard to the provisions contained in Sections 221, 224, 225 and 226 of the said Act. 12. It was further argued by the counsel for the respondent/NDMC that the application filed by the NDMC before the Supreme Court in July 2011 praying Inter alia for extension of time to regulate hawkers/squatters in the NDMC area, as per the scheme mentioned in the judgment in Gainda Ram's case Csupral, till the enactment of a law by the legislature in that regard, had not yet been finally disposed of by the Supreme Court at the time of passing of the status quo order dated 15.07.2011 and similarly, the other application filed by one of the hawkers/vendors praying inter alia for restraining the respondent/NDMC from granting Tehbazari rights to the winners of the lucky draw of lots for allotment, which was to be held on 12.05.2011 or any date thereafter, was also pending consideration before the Supreme Court. Hence, no finality could be attached to the order dated 15.7.2011 which can only be considered an interim measure till the final disposal of the aforesaid applications or the enactment of a legislation. 13. On merits, learned counsel for the respondent/NDMC referred to the affidavit dated 01.08.2011 filed by the Director (Enforcement), NDMC, W.P.(C)4743/2011, S2S4/2011 &connected matters Page 10 of 28 wherein it was stated that pursuant to the public notice issued by the NDMC inviting applications under the NDMC Urban Street Vending Scheme in the year 2007, the respondent/NDMC had received 4367 applications. The documents required by the applicants for registration under the Scheme included a proof of age, documentary proof/affidavit for the purpose of annual income, proof of residence, proof in support of special categories like handicapped, Kashmiri migrants etc. and proof of squatting in the NDMC area, if any. In para 4 of the aforesaid affidavit, the following criteria approved/adopted by the Vending Committee to shortlist the eligible applicants is set out:- "4. That the criteria approved/adopted by the Vending Committee to shortlist the eligible applicants is as under:- (i) The applicants should be resident of Delhi with his name registered in electoral rolls as per abstract of photo E-Roll or ERO certificate. (ii) The applicant should be a major, viz. with over 18 years of age as per valid birth certificate or age certificate or school certificate etc. \ /• (iii) The applicant should be a needy as per income records of DC (Revenue) or as vulnerability records of Government of NCT of Delhi (Samajik Suvidha Sangam: vulnerable and most vulnerable category). (iv) The applicant should be registered as per NDMC Street Vendors Scheme. The policy verification of the applicant should be available. (v) The applicant or his dependent family member should not be employed or should not have any other tehbazari/vending or any other business premises in Delhi as per record verification of NDMC/MCD. W.P.{C)4743/2011,S254/2011&connectedmatters Page 11 of28 (vi) Preference will be given to applicants who are physically handicapped or widows or senior citizens above 60 years or Kashmiri migrants or SC/ST (necessary certificate to be submitted and relaxation may be given in the above criteria)." 14. As per the respondent/NDMC, the category-wise list of eligible shortlisted applicants in terms of the aforesaid criteria totalled to 3878 applicants. The affidavit dated 01.08.2011 states that the respondent/NDMC has identified 183. new spaces, in addition to the 203 remaining spaces identified by the Thareja Committee in the NDMC area, which were available for allotment, thus taking the total number of available spaces to 386. It was further stated that due to factors like de- listing of the Parliament Street on security grounds, construction of flyovers and Metro Stations at various locations in the NDMC jurisdiction, the number of authorized tehbazari squatters has changed from 348 to 404 in number. The number of applicants, who the respondent/NDMC claims, are vending unauthorisedly at Connaught Place, Sarojini Nagar, Parliament Street and Janpath areas and in whose favour, status quo orders are operating, is stated to be 323 in number. The affidavit asserts that simply because the names of the petitioners, who are registered with the NDMC, figure in the eligibility list drawn by the respondent/NDMC, cannot be treated as proof of their regularly vending in the NDMC area and nor does it confer on them any enforceable vested right to ensure a vending space for them in the NDMC area, which is directlydependent on W.P.(C) 4743/2011, 5254/2011 & connected matters Page 12 of 28 the number of spaces available. Thus, it was contended that neither the possession of any number of challans, nor the absence thereof can make a difference, for the reason that challans cannot form the basis for the petitioners to claim any vested legal right to squat at a given space. i 15. Counsel for the respondent/NDMC asserted that the present petitions are not maintainable inasmuch as the petitioners have an equally efficacious alternate remedy of approaching the appellate authority constituted by the Chairperson, NDMC, for redressal of their grievances and failure on their part to have approached the Vending Committee is not on account of the fact that the said Committee including the appellate authority is not functioning, but because they have found it more convenient to bypass the aforesaid forum and approach this Court directly, which is not permissible. She stated that extensive measures have been taken by the respondent/NDMC to constitute the adjudicatory mechanism by way of a three tier system in the following manner:- ^ 1. VendingSub-Committee(Site of Spaces), 2. Vending Sub-Committee (Heath and Hygiene) and 3. Vending Sub-Committee (Enforcement). 16. She stated that the creation of the aforesaid three Vending Sub- Committees, Vending Committee (Main), as also of the appellate authority which was constituted to redress the grievances of the squatters, hawkers, traders, residents or any other person against the decision of W.P.(C)4743/2011, 5254/2011 &connected matters Page 13 of 28 the Vending Committee (Main), was placed before the Supreme Court for « consideration and the said three tier adjudicatory mechanism was duly approved in the judgment of Gainda Ram fsupral. 17. Per contra, learned counsels for the petitioners/vendors, who ' appeared on different dates, vehemently opposed the aforesaid stand taken by the respondent/NDMC and asserted that the scheme floated by ' -j- the respondent/NDMC for regulating vending activities in its jurisdiction ,• had lapsed on 30.06.2011 in the absence of the enactment of a legislation as per directions of the Supreme Court in the case of Gainda Ram fsupra) and as on date, there is no scheme in existence. It was canvassed that the implication of the aforesaid order of status quo passed by the Supreme Court on 15.07.2011 can only mean that irrespective of the fact whether the squatting is legal or illegal, the same be permitted to continue on an 'as is where is' basis, and such status quo is to be maintained by all the parties till a law is framed by,the legislature. 18. Mr. B.B. Sawhney, Sr. Advocate appearing for the petitioners/vendors submitted that in the case of Gainda Ram fsupra), the Supreme Court had directed that the appropriate government must enact a law on or before 30.06.2011 so that the hawkers may precisely know the contours of their rights, hence the dispute redressal mechanism provided for in the scheme mentioned in the aforesaid judgment could operate only upto 30.06.2011 and thereafter, the said scheme would W.P.(C)4743/2011, 5254/2011 &connected matters Page 14 of 28 automatically stand lapsed. He stated that no other Interpretation can be given to the order dated 15.07.2011, directing maintenance of status quo, in view of the qualifying words, "as it is obtaining today". He argued that if the scheme was continuing to operate, as claimed by the learned counsel for the respondent/NDMC, then there was no good reason for the ) respondent/NDMC to have refrained from holding a draw of lots, which was slated for the same day, i.e., 15.07.2011, and that fact of the matter is that even the respondent/NDMC had understood the status quo order to mean that there is no scheme in place after 30.6.2011, for the reason that in para 68 of the aforesaid judgment in the case of Gainda Ram (supra), all the writ petitions and the interim applications filed before the Supreme Court were disposed of with clear and specific directions that the problem of hawking and street vending could be regulated by the schemes framed by the NDMC and MCD only upto 30.06.2011 and not thereafter. It was asserted on behalf of the petitioners/vendors that as on date, the directions of the Supreme Court that status quo is to be v-' maintained by the parties can only be given one interpretation, which is that till a law is ultimately enacted by the Parliament, irrespective of their legal status, all the petitioners/vendors would be permitted to continue squatting/hawking at the sites that have been occupied by them. 19. Insofar as the composition of the dispute redressal mechanism is concerned, learned Senior Advocate for the petitioners submitted that contrary to the understanding of the respondent/NDMC,the scheme W.P.(C)4743/2011, 5254/2011 &connectedmatters Page 15 of 28 reproduced at paras 72 and 73 in the judgment in the case of Gainda Ram (supraj, was not the one which was actually recognized by the Supreme Court, and rather it is the dispute redressal scheme mentioned in para 75 of the aforesaid judgment i.e., a scheme for urban street vendors for NDMC area as formulated in the year 2006, which was ultimately \ ^ approved by the Supreme Court on 17.05.2007, in the case of Sudhir Madan_ (supra), which is the scheme