Madan and Others Vs. Municipal Corporation of Delhi and Others  Insc 620 (17 May 2007)
B.P. SINGH & HARJIT SINGH BEDI
O R D E R I.A. NO. 394 IN I.A. NO. 356 IN WRIT PETITION (C) NO. 1699 OF 1987
B.P. SINGH, J.
1. This order may be read in continuation of our order of 6th February, 2007.
2. When the matter came up before us on 6th February, 2007, all aspects of the Scheme submitted by the Municipal Corporation of Delhi (hereinafter
for short 'MCD") were fully discussed. In the course of discussion,
certain suggestions were made which the Court found acceptable and directed the
MCD to consider whether those suggestions could be incorporated in the Scheme.
The MCD finding the suggestions acceptable has submitted before us a scheme
incorporating these suggestions.
3. The Scheme envisages the identification of squatting/vending areas by the
Ward Vending Committees which has to be approved by the Zonal Vending
Committees which is also empowered to make necessary changes and make
allotments accordingly. The identification of the hawkers/squatters occupying
those sites has necesarily to be done by the MCD. Ms. Indra Jaising, learned
senior counsel appearing on behalf of SEWA and Mr. Prashant Bhushan, learned
counsel appearing for National Association of Street Vendors of India submitted
that the Scheme proposed by the MCD is not satisfactory inasmuch as the survey
work to identify hawking and non-hawking zones and the sites available should
have been entrusted to an independent organisation which at one time was
considered by the MCD, but which has been rejected on the plea that it involves
considerable expense and time.
4. It appears that such a question was raised before this Court in the case
1699/1987) and this Court by order dated 6.11.2000 rejected the submission
which has been urged before us, in these words :- "So far as
identification of squatting and non-squatting zones are concerned it is an
administrative function of the MCD which is done by taking into account various
factors namely, public interest depending mainly upon the congestion in the
area and public safety which are the main considerations for any Government. No
challenge to such identification of squatting and non-squatting zones can be
permitted under any circumstance when the administrative authority has taken
all factors in to account. We are not sitting in appeal against any decision
made by the administrative authority. We therefore do not permit any challenge
to the identification of the squatting and non-squatting zone and to the map as
prepared by the MCD showing Green shall be treated as final and shall not be
allowed to be questioned."
In this view of the matter, we cannot accede to the request of the learned
counsel for the respondents who have contended that fresh survey should be
undertaken by an independent expert body or an independent organisation to
identify the hawking sites and the existence of hawkers. This is essentially a
matter which the Municipal Corporation of Delhi has to consider and take a
decision. We cannot issue a writ directing the MCD to do so, this being a
matter of policy.
5. We would, however, like to make one small modification in the Scheme so
far as it relates to prohibition on cooking of food items. The allottees of
Tehbazari/vending sites may be permitted to serve tea or coffee provided it
does not result in disposal of any waste and the beverage is served in
disposable glasses/cups for which adequate arrnagement is made for safe
disposal by the allottees of those sites.
6. The Scheme provides for resolution of disputes between allottee and the
MCD by the Zonal Vending Committees and an appeal is provided before the
Appellate Authority. Mr. Sanjiv Sen, learned counsel appearing for the MCD
accepted the suggestion made that the Scheme shall be modified suitably by
providing that the Zonal Vending Committees shall be presided over by a
judicial officer not below the rank of Addl. District Judge and the Appellate
Committee shall be presided over by a retired High Court Judge. He submitted
that necessary amendment in the Scheme shall be carried out accordingly. We,
therefore, direct the MCD to do so.
7. The MCD has enclosed with the proposed Scheme a proforma of the
application form for tehbazari/vending sites which requires an applicant to
give all necessary particulars for consideration of his/her application. We
approve of the said proforma submitted before us but it will be open to the MCD
to require further particulars to be given in case it is considered necessary.
8. In the Scheme the proposed timing for fixed tehbazari/vending sites as
well as proposed auto/cycle rickshaw is from 8.00 a.m. to 9.00 p.m. and for vendors moving in residential colonies from 7.00 a.m. to 8.00 p.m. or as fixed by the concerned Residents Welfare Associations. So far as the fixed
tehbazari/vending sites are concerned the timings may be changed depending on
weather conditions and other relevant considerations. So far as the timings for
vendors moving in residential colonies is concerned the scheme itself suggests
that the Residents Welfare Assotiation will be consulted. We only wish to
emphasise, as suggested by Mr. Prashant Bhushan, that no rigid approach may be
adopted in fixing the timings.
9. We would like to make only one exception with regard to timing of squatting/vending
activity. There are several places which are visited by the public at large
throughout the day and night, such as, railway station, bus stands, hospitals
etc. Sometimes late in the night visitors to these places may require a cup of
tea or snacks. At most such places, provision is made for sale of food
items/beverages through duly established outlets, shops and restaurants.
However, where such facilities are not available, the MCD may consider relaxing
the timings for hawkers/vendors who may serve tea/coffee, cold drink, and food
items including packed cooked food items in the interest of the persons
visiting such places at unearthly hours. This, however, should be an exception
and only subject to the conditions stated above.
10. It was also submitted before us by Mr. S.K. Sinha, counsel appearing on
behalf of Daryaganj Traders Association that at some places the width of the
footpath is only 5 ft. but the same has been declared to be a squatting area.
We had in our earlier orders suggested that tehbazari/vending sites should be
so located as to give atleast 5 ft. space on the footpath for movement of the
pedestarian. The modified Scheme, however, does not clearly bring about this
prohibition. We direct that no tehbazari/vending site shall be located on a
footpath unless a clear 5 ft. space is made available for pedestarian. This
should be made clear in the Scheme.
11. In its submission before us the MCD stated that after this Scheme comes
into effect the allottees of tehbazari/vending sites will not be permitted to
transfer their sites to any person except in accordance with the Scheme.
However, he brought to our notice that large number of transfers have already
taken place prior to 6th Febraury, 2007 and it may be difficult for the MCD now
to reverse the position as it may give rise to a lot of litigation and at the
same time create some unrest. It was suggested that this Court may pass an
order that no litigation shall be entertained where action is taken in cases of
change of site without the permission of the MCD and the litigation, if any,
should be made subject to jurisdiction of this Court only. We do not think it
proper to pass such an order. However, we cannot also countenance an illegal
transfer of tehbazari/vending sites by the allottees. If such transfer requires
the prior permission of MCD and the same has been done in violation of such
requirement, the law must take its course because in such manner many persons
may be able to secure tehbazari/vending sites over looking the better claims of
others. In our view the law must take its course in such cases.
12. In the proposed Scheme under Clause (I) of paragraph (a) there is
reference to payment of registration fee and tehbazari/vending charges in
addition to road tax, Mr. Sen clarified that payment of road tax is only in
respect of four wheelers. The Scheme may clarify this position. However, this
will not prevent authorities concerned from collecting road tax from others if
under law such road tax is payable.
13. Mr. Prashant Bhushan, learned counsel appearing on behalf of National
Association of Street Vendors of India submitted that allotment of sites
available is only 2.5% of the total population per Ward based on census of
2001. He submitted that the percentage of 2.5 must be worked out by reference
to the current census. We consider the suggestion to be reasonable and direct
the MCD to consider such change in number of sites as may become necessary
based upon the current census figures as and when available.
14. In sub-paragraph (d) of para B it is provided that the age of an
allottee should not be less than 18 years and should not exceed 60 years on the
date of application.
15. After hearing counsel for the parties, we are of the view that though an
allottee should not be less than 18 years of age on the date of allotment, no
maximum upper age limit shall be fixed. In fact, Mr. Sanjiv Sen, learned
counsel appearing on behalf of MCD also agreed and submitted that the
eligibility based on age should be confined to new entrants and in any case
will not apply to those who are being re-located Having considered this matter,
we are of the view that the upper age limit should be deleted since it may
create many complications particularly in regard to applicants whose
applications have been pending but not considered or whose cases may be found
to be justified though no actual allotment has been made in their favour. We,
therefore, direct that the upper age limit of 60 years may be deleted from the
16. Before parting with this aspect of the matter we may notice the
submissions urged on behalf of SEWA by Ms. Indira Jaisingh. She submitted that
Daryaganj has not yet been declared to be a weekly market.
As a matter of fact large number of booksellers used to sell books, old and
new on a particular day in the week. She submitted that the said weekly market
may be recognized only for the sale of books. She also submitted that Lala Qila
has not been declared as weekly market and it should be so declared.
17. We are afraid we cannot issue direction to declare a weekly market in a
particular area. That is a matter which has to be considered by the Municipal
Corporation of Delhi. We may only observe that the concept of weekly market for
sale of books only is a suggestion worth considering, particularly in view of
the fact that the readership of books is diminishing day by day on account of
rising costs of books which many cannot afford.
Such a market may provide an opportunity to have avid readers to purchase
books at low cost. This would also serve the purpose of a book being read by
many, rather than being kept in the shelf of a particular room.
18. She also submitted that some preference should be given to women vendors
in the allotment of tehbazari sites. In particular she referred to the daily
market at Jahangir Puri which had developed as an all women's vegetable market.
This again is a matter of policy and it would not be appropriate for us to
direct the Municipal Corporation of Delhi to give preference to women vendors or
recognize daily markets only for women. It is no doubt true that women vendors
should be given adequate opportunity to supplement their family income. It is
also true that they deserve more protection than others. We can only observe
that in planning markets in the city, the Municipal Corporation of Delhi may
consider whether some space should be reserved exclusively for women who may be
allotted sites adjacent to each other in a block. It may also be a good idea to
establish markets where sites may be allotted exclusively to women for selling
items which primarily interest the women. This may greatly convenience women
shoppers who may have an exclusive place to go and shop for all their personal
needs. We have no doubt that in the future planning of markets such
considerations will weigh with the planners.
19. Subject to these modifications, the Scheme submitted by the MCD in
regard to vending sites/tehbazari is approved.
20. We shall now consider the policy relating to weekly bazars.
21. It is submitted by the MCD that as of today as many as 227 weekly bazars
are being held. Most of them are held in non-hawking/non-squatting zones.
Necessary directions have been sought in this regard from this Court.
22. Ms. Indira Jaising, learned senior counsel appearing on behalf of SEWA
submitted that these weekly bazars are held only once a week and, therefore,
there can be no objection to weekly bazars being held even in a no hawking
zone. The matter requires to be considered from this perspective.
She further submitted that collection at such weekly bazars through
middlemen should be avoided and in the matter of timing also, no rigid approach
must be adopted. She pointed out that the physical demarcation of hawking sites
in weekly markets has given rise to lot of disputes. She also highlighted the
fact that after the year 2005 no collections are being made from anybody in the
weekly bazars. She submitted that some preference must be given to women
vendors in the weekly bazars. She also submitted that in Jahangirpuri area
there was a market run only by women and this should be revived.
23. Mrs. Usha Kumar, learned counsel appearing on behalf of the Chandni
Chowk Sarvvyapar Mandal submitted that in some areas there are two weekly
bazars and they are held even on working days of the market of the area. In
particular, she referred to Bhogal area where the entire area is converted into
something like a weekly bazar on all days.
24. Mr. Sen, appearing on behalf of MCD submitted that most of the weekly
bazars are held in non-hawking areas. There is no uniform fixed weekly holidays
when markets are closed.
25. We have considered the Scheme proposed by the MCD in relation to weekly
bazars and having considered the submissions urged on behalf of counsel
appearing for the parties, we are of the view that weekly bazars should be held
only once a week in an area which must be the day on which the markets in the
area observe a weekly closure under the Shops and Establishments Act. No weekly
bazars will be held on a day which is not a closed day for the market of the
area. The MCD will identify the area over which weekly bazar may be held and in
doing so it must take care to see that no road is blocked and access to any of
the premises on the road is not affected. If there be any open space available,
excluding the parks, it may permit weekly bazars to be held there. If necessary
weekly bazars shall be held at a place other than where it is currently held if
it is not possible to hold the bazar at the present location without causing
undue inconvenience to the residents of the locality. We again reiterate that
such bazars shall be held only on days when the market of that area observes a
weekly off day in compliance with the provisions of the Shops and
Establishments Act and on no other day.
26. To avoid loss of revenue to the MCD, the collection from these bazars
should be made by the MCD itself and middlemen should not be involved in such
collection. So far as the timing of such weekly bazars is concerned, as we have
observed earlier, the authorities need not be rigid and depending upon the
climatic conditions, different timings may be prescribed for holding weekly
bazars. Usually different timings are fixed for summer and winter months. That
could also be adopted for holding of such markets. However, care should be
taken that the weekly bazars do not continue to function after 10.00 p.m.
27. The New Delhi Municipal Committee has also submitted its Scheme.
We have considered the scheme submitted before us. The area which falls under
the NDMC does not create problems such as those in the areas under the MCD.
However, in the said scheme reference has been made to persons who do not have
permisison under Section 225 or license 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 problems need to
be addressed by the Legislature or the rule making authority. We, therefore,
observe that if it is is felt that the persons who fall in this category
require special protection, the Act may be suitably amended to cover their
cases or else the number of such illegal squatters may increase from time to
28. There has been no serious objection to the scheme submitted by the NDMC
which is a comprehensive scheme Certain directions have, however, been sought
for from this Court. We approve the scheme submitted by the NDMC.
29. It is submitted 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 the MCD and NDMC. If the legislature
intervenes and frames another scheme or regulations governing such schemes,
that will certainly supersede the schemes prepared by the MCD and NDMC. It is
well settled that any administrative action is always subject to law that may
be framed by the competent legislature.
30. It was further submitted before us that the authorities must have due
regard to the concept of a natural market. We agree. In implementing such
schemes, the authorities cannot ignore the concept of a natural market, but
many interests have to be balanced so as to cause least inconvenience to the
public at large. There is no reason for us to doubt that the authorities
concerned will ignore all such relevant considerations in working a scheme of
31. It was also submitted that the authorities may be directed to identify
the non-hawking areas only and rest of the areas should be permitted as hawking
areas. In our view such a course will not be practicable. In any event, that is
a matter for the concerned authorities to consider and we can express no
opinion in the matter. We may, however, observe that since a National Policy on
Urban Street Vendors has been formulated, the authorities concerned will have
due regard to the said policy in the implementation of the schemes regulating
tehbazari/vending sites etc.
32. Counsel appearing for the MCD as well as the NDMC submitted before us
that so far as they are concerned, they have no control over the taxi stands
which at times occupy not only the area allotted to them but spill over
footpaths and the road. Very often a large number of vehicles of a taxi stand
are found parked on the roads, causing dislocation of traffic. We had directed
counsel for the Delhi Administration to seek insructions in this regard. We
direct the Delhi Administration to take appropriate steps in the matter
whenever any complaint is made by MCD or the NDMC with regard to violation of
Rules by the taxi stand owners and illegal encroachments on footpaths and roads
by parking of vehicles. In such cases complaints may be made by the concerned
authorities to the District Magistrate of the area concerned and the SHO of the
police station under which the taxi stand falls.
Within one week of receipt of such complaint, appropriate action must be
taken by the Delhi Administration. In case of persistent defiance and breaches,
the Delhi Administration may exercise its power to denotify the taxi stand
33. We also issue a general direction to the Commissioner of Delhi Police to
come to the aid of the MCD/NDMC as and when required for proper implementation
of the schemes propounded by htem. Any laches on the part of the police will be
seriously viewed by this Court, as amounting to a breach of an order passed
34. Subject to the aforesaid modifications/changes in the Schemes submitted
by the 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.
35. This order only disposes of the matter so far as it relates to the
approval of the schemes submitted by the MCD and NDMC and I.As. filed in
connection therewith. Individual applications in the matter shall be considered
separately by this Court, as directed earlier.