Gainda Ram & Ors.
Vs. M.C.D. & Ors.  INSC 712 (9 April 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION I.A.No. 1 in I.A. No. 407 in W.P.(C) No.
1699/1987 PATRI VYAPAR MANDAL DELHI (REGD) ......Petitioner(s) VERSUS M.C.D.
TOWN HALL & ORS. ......Respondent(s) WITH I.A.No.1 & C.P.(C) No.
170/2007 in I.A. No. 394 in I.A. No. 356 in WP(C) No. 1699/1987 CONTEMPT
PETITION (CIVIL) No.323/2007 in WP(C) No. 1699/1987 WITH I.A. No. 366 in
W.P.(C) No. 1699/1987 I.A. No. 367 in W.P.(C) No. 1699/1987 CONTEMPT PETITION
(CIVIL) No. 126/2001 I.A. No. 361 in W.P.(C) No. 1699/1987 I.A. Nos. 372-373 in
W.P.(C) No. 1699/1987 I.A. No. 389 in W.P.(C) No. 1699/1987 I.A. No. 392 in
W.P.(C) No. 1699/1987 WITH
W.P.(C) No. 535/2001 W.P.(C) No. 240/2004 I.A. Nos. 397-398 in W.P.(C) No.
1699/1987 I.A. No. 399 in I.A. No. 394 in W.P.(C) No. 1699/1987 I.A. Nos. 1-2
in W.P.(C) No. 100/2002 I.A.No..../2005 in I.A.No. 394 in I.A.No. 356 in
W.P.(C) No. 1699/1987 I.A.No..../2005 in I.A.No. 394 in I.A.No. 356 in W.P.(C)
No. 1699/1987 I.A. No.400 in W.P.(C) No. 1699/1987 WITH I.A. No.401 in I.A. No.
396 in C.P. No. 506/2002 WITH I.A. No..... in C.P. No. 506/2002 I.A. No.402 in
W.P.(C) No. 1699/1987 WITH W.P.(C) No. 414/2006 WITH I.A. No.403 in W.P.(C) No.
1699/1987 WITH I.A. No.404 in W.P.(C) No. 1699/1987 WITH I.A. No.406 in W.P.(C)
No. 1699/1987 WITH I.A. Nos.408-409 in W.P.(C) No. 1699/1987 I.A. No.410 in
W.P.(C) No. 1699/1987 WITH CONTEMPT PETITION (CIVIL) No.183 in W.P.(C) No.
1699/1987 WITH C.P. (C) No.......(D. No.4361/2009) in W.P.(C) No. 1699/1987
ORDER Dr. Mukundakam Sharma, J.
1. By this common
order we propose to dispose of various applications filed by the parties hereto
including the one which has been filed by the Municipal Corporation of Delhi
(in short the `MCD').
2. Delhi being the capital
of India has many peculiar problems. One of the problems is naturally its
population which has increased manifold obviously due to influx of people from
various regions and States looking for new openings and avocations. Space
availability in Delhi is very limited and within that limited space available
at its disposal the municipalities namely the MCD and the New Delhi Municipal Corporation
(in short the `NDMC') have to manage all their activities including functioning
of the markets at different places.
3. Limited space
available for effective functioning of markets including accommodation
available for the squatters and hawkers to carry on their small business has
been receiving attention of this Court for quite a long time. In that regard,
several orders have been passed by this Court from time to time. Pursuant to
such orders of this Court the MCD as well as the NDMC have framed Schemes for
running of the business by the squatters/hawkers. In response to the Schemes,
nearly 85,000 people applied for allotment of spaces within the MCD area and
about 10,000 people applied for such allotment within the NDMC area seeking
settlement of the tehbazari rights under the Schemes as formulated by the MCD
and the NDMC. Due to want of space only about three thousand of such applicants
out of the aforesaid applications received could be allotted spaces by the
4. So acute was the
dissatisfaction with the process followed by municipal authorities that several
complaints were filed in the Court raising numerous objections against the
manner in which the MCD tried to implement the Schemes.
5. Under the Schemes
formulated by the MCD and the NDMC hawking and non-hawking areas have been
demarcated and the hawkers/squatters were to be located only in demarcated
hawking zones in accordance with the priorities mentioned in the Schemes.
6. In the last few
years a clearance operation was being carried out for the purposes of widening
roads and decongesting crowded areas which affected a large proportion of
genuine vendors who were either removed or dislocated for one reason or the
other. In some cases possession was not given and in some other cases those
persons, who were entitled to settlement under the Schemes have a grievance
that their matters remained pending and no orders have been passed granting
a large number of applications were filed by the concerned authorities and
aggrieved parties in which general directions were issued by this Court from
time to time.
7. In the meantime, a
Scheme called the "National Policy on Urban Street Vendors" (for
short the `NPSV/Scheme') was formulated by the Government of India in the year
2004 which the MCD has agreed to implement in principle. In accordance with the
said Scheme, Ward Vending Committees have been constituted in all the 134 Wards
of the MCD. These committees were charged with the duties of identifying the
sites, declaring hawking and non-hawking zones in consultation with various
stakeholders like Vendors/Trader's Associations, Resident Welfare Associations,
Traffic Police etc. in accordance with the relevant Rules. In addition to this,
Zonal Vending Committees have also been constituted in all the 12 Zones.
8. According to the
NPSV the total vending sites would not exceed 2.5% of the total population of
that particular Ward/Zone based on the Census 2001 which is consistent with the
policy framed for the purpose and about 3 lakh hawkers/squatters could be
accommodated including existing tehbazari/vending sites. It was proposed in the
Scheme that the rights of those hawkers/squatters already granted valid
licenses under the Schemes finalized by the MCD would not be affected and that
whatever action could be taken in the near future would be based in terms of
the Scheme. It was decided that in executing the Scheme preference would be
given to those squatters/hawkers eligible for allotment under the existing
scheme based on their seniority and priority of claim.
9. When the matter
came up before this Court on 06.02.2007, all aspects of the NPSV were fully
discussed. Certain suggestions were made in the Court by the various parties
which the Court found acceptable and in that regard directions were issued to
the MCD to consider whether those suggestions could be incorporated in the
Scheme. The MCD found the suggestions acceptable and has submitted a Scheme
incorporating those suggestions. Now the Scheme envisages identification of
squatting/vending areas by the Ward Vending Committees which was to be approved
by the Zonal Vending Committees which is also empowered to make necessary
changes and make allotments accordingly.
10. In the said order
dated 06.02.2007 reference was made to the fact that the tehbazari/vending
sites would remain the property of the MCD.
However, mutation in
case of death or permanent insanity of the allottee would be allowed. It was
provided that transfer/mutation in the event of change of hands or exchange
would be permissible subject to the charges as approved by the MCD from time to
time. It was also provided that tehbazari/vending sites would measure 6 ft. x 4
ft. and open to sky and that no permanent structure would be allowed to be
raised. It was also held that if it is found that any change or alteration in
structure has been made by the allottee, his licence would be cancelled. It was
ordered that all the existing allottees as per the old Schemes would continue
and only thereafter, the cases of others would be considered in accordance with
the preference as provided in the said sub-paragraph but that would not
preclude the shifting of an allottee from one site to another consistent with
the norms of the NPSV which provided that the eviction should be avoided
wherever feasible unless there is clear and urgent public need of the land in
11. Broad guidelines
were issued by this Court in the said order as to what would be the further
conditions to be incorporated in the Scheme which were so incorporated.
However, the said Scheme proposed by the MCD was not found to be satisfactory
by some of the parties due to various reasons due to which objections were
raised in respect of some of the clauses in the said Scheme. This Court
considered the said objections and after detailed discussion and subject to
certain modifications as outlined in the order passed by the Court, the Scheme
submitted by the MCD in regard to the tehbazari/vending sites was approved.
12. Ms. Indira
Jaising, learned senior counsel appearing on behalf of Self Employed Women
Association (SEWA) put forward a strong claim for establishment of weekly
markets in various areas. This Court heard the said suggestions very carefully
and after full deliberation held that the Court cannot issue direction to
declare weekly market in a particular area for such matter is to be exclusively
considered by the MCD. So far as the suggestion for giving preference to women
vendors in the allotment of tehbazari/vending sites is concerned, it was held
that the same is again a matter of policy and, therefore, it was observed that
in planning markets in the city, the MCD may consider whether some space would
be made available to women vendors and whether they may be allotted
tehbazari/vending sites adjacent to each other in a Block.
13. A further
submission was made before the Court that the Schemes which have been approved
by the Court should be subject to such Act or Rules that may be formulated in
consonance with the NPSV. The Court in that regard made it clear that it had
only approved the Schemes as framed by the MCD and the NDMC and that if the
Legislature intervenes and frames another Scheme or Regulation governing such
Scheme that would certainly supersede the Schemes formulated by the MCD for it
is well settled that any administrative action is always subject to such law
that may be framed by the competent Legislature. It was observed by the Court
while passing the said order that since the NPSV have been formulated, the
concerned authorities would have due regard to it in regulating
tehbazari/vending sites etc. In the orders subsequent thereto this Court
desired that the MCD and the NDMC would submit a separate status report along
with charts in regard to the implementation of the Schemes not only in general
but also with reference to the pending applications.
14. Pursuant to the
aforesaid order passed, the MCD filed a detailed affidavit on 19.04.2008 giving
the said status report regarding the implementation and progress of the new
Scheme. The MCD also filed an application dated 09.05.2008 seeking appropriate
directions from this Court in regard to certain difficulties being faced by
them in implementing the Scheme. In the said application four principal
difficulties have been pointed out. The first issue which is raised is that the
Government of India has issued an Ordinance in 2007 which was later converted
into an Act known as Delhi Laws Special Provisions Act, 2007 (for short the
`Delhi Act') which restrains removal action inter alia against unauthorized
squatters/vendors up to 31.12.2008. It was stated that the applicability of the
Delhi Act has been extended for another one year and an appropriate legislation
in that regard has been passed by the Parliament.
15. In view of the
aforesaid position it is pointed out that a problem is being created for
settlement of eligible squatters as some of the sites have been occupied by
unauthorized vendors who are entitled to protection under the provisions of the
Delhi Act. It is next pointed out that for settlement of squatters/street
vendors, there is hardly any footpath which has a width of 9 ft. providing 5
ft. for the pedestrians and 4 ft. for the hawkers along the roads and as such,
a difficulty has arisen to adjust the eligible applicants on the footpath and
also for identification of new squatting and vending areas for them. It was,
therefore, suggested by the MCD in the said application that it may be
permitted to identify the sites for squatting/vending areas on the footpath having
less than 9 ft. width and for that purpose the open space on the footpath may
be reduced from 5 ft.
to 3 ft. It was
pointed out that if such an order is not passed the number of new sites
identified/to be identified would not exceed 20,000. The third aspect on which
emphasis was placed by the MCD was that this Court in its earlier orders has
barred transfer of sites. It was pointed out that most of the existing
tehbazari sites have been sold by their original allottees to others who are in
possession of the sites as on date. It was also pointed out that in most cases
the existing occupants of the allotted sites did not apply pursuant to the
advertisement which was issued by the MCD and also in the format which was
approved by this Court. Lastly, it was pointed out that in many cases the
tehbazari holders have made additions/alterations and even encroached the
adjoining area thereby enlarging the size of the tehbazari which is now fixed
at 6 ft. x 4 ft. and even in some cases, making it double storey instead of
single storey/open to sky or closed. Therefore, it was proposed in the said
application that the MCD may be allowed to bring the old tehbazari sites into 6
ft. x 4 ft. with an aesthetic design and to take action against encroachers/violators
in order to bring these tehbazaris to a uniform size and manner.
16. Applications were
also filed by the other parties. Mr. Prashant Bhushan, learned counsel
appearing for National Association of Street Vendors of India (NASVI) while
supporting his application which is registered as I.A. No. 404 in W.P. (C) No.
1699 of 1987 submitted that mobile hawkers should be allowed to replace
unauthorised hawkers and that the width of the footpath should be left to be
determined by the Ward Vending Committees. He further submitted that the
meetings of the Ward Vending Committees should be more transparent and advance
notice of such meetings should be given to all concerned particularly to its
members. He also submitted that the applications for granting tehbazari sites
are not being considered but instead the authorities have started the eviction
17. Ms. Geeta Luthra,
learned counsel appearing for Manushi Sangathan made submission that there
should be a photo census of all the squatters and hawkers so as to avoid all
illegal transfers of such sites in future.
She also referred to
the NPSV and particularly to paragraph 3.1. of the said Policy which gives
vendors a legal status by amending, enacting, repealing and implementing
appropriate laws and providing legitimate hawking zones in urban development/
18. Mr. R.K. Khanna,
the learned counsel appearing for the NDMC submitted that so far as NDMC is
concerned it does not want the area and width of the footpath to be changed or
reduced. He also submitted that they have granted tehbazari licence in accordance
with the existing rules/Schemes.
19. So far I.A. No. 1
in I.A. No. 407 in W.P. (C) No. 1699 of 1987 is concerned, orders were already
passed in the said application on 05.03.2009.
20. In view of the
aforesaid position we are required mainly to deal with the contentions raised
by Mr. Ravishankar Prasad, learned senior counsel appearing for the MCD in
respect to the application filed by the MCD whereby they have sought for
certain clarifications and also with the contentions raised by Ms. Indira
Jaising, Mr. Prashant Bhushan and Ms. Geeta Luthra.
21. So far the
contentions of Ms. Indira Jaising are concerned, the said contentions with
regard to the establishment of weekly markets and giving preference to women
vendors in the matter of allotment of tehbazari/vending sites have already been
dealt with and orders in that regard have been passed by this Court in the
order dated 17.05.2007. It is established from the records and the statements
made before us that the Ward Vending Committes numbering 134 as also the Zonal
Vending Committes numbering 12 have already been constituted. The Appellate
Committee to be presided over by a retired High Court Judge in terms of the
orders of this Court has also been constituted. It is an admitted position that
no Act or Rules have been framed so far by the Legislature in consonance with
the NPSV. Therefore, orders in the manner of administrative action could be
issued subject to law that may be framed by the competent Legislature.
22. With regard to
the contentions raised by the MCD regarding reduction of the width of the
footpath for pedestrian from 5 ft. concerned, in our considered opinion, no
direction in that regard could be passed by this Court. There could be some
areas where 5 ft. width of the footpath for the use of pedestrian could be
necessary depending on overflowing members using it whereas in some other
places width of 5 ft. for a footpath and 4 ft. width for hawkers may not or
could not be made available due to various practical reasons. It is also not
possible for us to consider reduction of width of such footpath for we are
unaware of the existing condition of the footpaths of the various areas in
Therefore, we do not
intend to pass any such orders without there being some concrete materials for
such modification. We, however, leave the matter to be considered by the Zonal
Vending Committes. At one stage we considered to leave the matter to be
considered by the Ward Vending Committees which are 134 in number but the
volume being too large we think it fit to leave it to the Zonal Vending
Committees to do such exercise as to whether in any particular area, the area
of the actual footpath being used by pedestrian could be reduced from 5 ft. to
a lesser area so as to make the balance area available to accommodate more
hawkers. While making a study in that regard the Zonal Vending Committee shall
consider all factors including the interest and the requirement of the
pedestrian using the footpath in a particular area. The said Zonal Vending
Committee after making proper and appropriate study of the prayer for reduction
of the width of the footpath for the pedestrian would submit their report to
this Court within three months from the date of receipt of a copy of this order
whereupon appropriate orders shall be passed in that regard.
23. So far the prayer
of the MCD with regard to the transfer of tehbazari/vending sites to the
non-family members as per the Scheme of the MCD is concerned, this Court passed
an order dated 06.02.2007 barring transfer of tehbazari/vending sites which was
reiterated in the order dated 17.05.2007. The said orders were meant to be
prospective in nature and, therefore, if any such tehbazari/vending sites were
transferred prior to 06.02.2007 the same could be considered as a valid
transfer. But, in any case, no transfer made after 06.02.2007 by way of change
of hands, sale etc. would be allowed and any such transfer, if made, would be
illegal. Persons found to have been transferred their tehbazari/vending sites
after 06.02.2007 could be evicted as per the due process of law. We believe
that the aforesaid order which we have passed with a cut of date of 06.02.2007
directing for legalizing any transfer made prior to 06.02.2007 and declaring
all subsequent transfers as illegal and invalid would likely to cause the
process of allotment of new tehbazari/vending sites smooth and easy.
24. So far the
contention with regard to applicability of the Delhi Act is concerned, the same
lapsed on 31.12.2008 and was subsequently extended till December, 2009.
Needless to say, the said law will have to be given effect to as it is a
Central law and would definitely have primacy over the administrative orders.
The provisions of the Delhi Act have to be implemented and, therefore, none of
the orders passed by us would be deemed to have been passed in derogation or
contrary to the provisions of the Delhi Act.
25. We observe that
when the Ward Vending Committees hold their meeting, advance notice thereof
with sufficient time should always be given to its members and the minutes of
the said meeting shall be recorded and record thereof shall be maintained.
26. With regard to
the suggestion that is given by Manushi Sangathan regarding maintaining a photo
census of all the squatters and hawkers allotted with the tehbazari/vending
sites, we find that the said suggestion is fair and reasonable and many
problems being faced by the MCD regarding illegal transfer, sale etc. would be
taken care of if a photo census of all the squatters and hawkers given the
tehbazari/vending sites is made compulsory and properly maintained. We direct
MCD to take immediate steps for carrying out photo census of all the existing
squatters and hawkers allotted with tehbazari/vending sites. The photo census
shall be compulsory for all future allotment also, if any. MCD shall also
maintain proper records of the photo census.
27. So far as the
establishment of the weekly markets and giving preference to women vendors are
concerned, this Court has already taken notice of the said submissions and has
passed effective orders in that regard. We make it clear that it is for the MCD
to consider the aforesaid request and to take appropriate decisions in that
regard for we do not intend to pass any such order as the same is, in our
considered opinion, in the domain of policy decision.
28. In terms of the
aforesaid order the applications registered as I.A.No. 1 in I.A. No. 407 in
W.P.(C) No. 1699/1987 with I.A.No.1 & C.P.(C) No. 170/2007 in I.A. No. 394
in I.A. No. 356 in W.P.(C) No. 1699/1987, Contempt Petition (Civil) No.323/2007
in W.P.(C) No. 1699/1987 with I.A. No. 366 in W.P.(C) No. 1699/1987, I.A. No.
367 in W.P.(C) No.
Petition (Civil) No. 126/2001, I.A. No. 361 in W.P.(C) No. 1699/1987, I.A. Nos.
372-373 in W.P.(C) No.
1699/1987, I.A. No.
389 in W.P.(C) No. 1699/1987, I.A. No. 392 in W.P.(C) No. 1699/1987 with
W.P.(C) No. 535/2001, W.P.(C) No.
240/2004, I.A. Nos.
397-398 in W.P.(C) No. 1699/1987, I.A. No. 399 in I.A. No. 394 in W.P.(C) No.
1699/1987, I.A. Nos. 1-2 in W.P.
(C) No. 100/2002,
I.A.No..../2005 in I.A.No. 394 in I.A.No. 356 in W.P.
(C) No. 1699/1987,
I.A.No..../2005 in I.A.No. 394 in I.A.No. 356 in W.P.(C) No. 1699/1987, I.A.
No.400 in W.P.(C) No. 1699/1987 with I.A. No.401 in I.A. No. 396 in C.P. No.
506/2002 with I.A.
No..... in C.P. No.
506/2002, I.A. No.402 in W.P.(C) No. 1699/1987 with W.P.(C) No. 414/2006 with
I.A. No.403 in W.P.(C) No. 1699/1987 with I.A. No.404 in W.P.(C) No. 1699/1987
with I.A. No.406 in W.P.(C) No. 1699/1987 with I.A. Nos.408-409 in W.P.(C) No.
1699/1987, I.A. No.410 in W.P.(C) No. 1699/1987 with Contempt Petition (Civil)
No.183 in W.P.(C) No. 1699/1987 with C.P. (C) No.......(D. No.4361/2009) in
W.P.(C) No. 1699/1987 are disposed of.