Sodan
Singh Vs. N.D.M.C. & Ors [1998] INSC 63 (4 February 1998)
S.B.
Majmudar, M. Jagannadha Rao. M. Jagannadha Rao, J .
ACT:
HEAD NOTE:
Leave
granted.
This
judgment is in continuation of two earlier judgments of this Court rendered in
this very case, which is a public interest case concerning the hawkers,
squatters, etc, in the public streets in the New Delhi Municipal Committee
area. The first of the judgments WAS rendered by a 1989 (4) SCC 155 and the
second was rendered on 13.3.1992 by 458. In sub - para 6 of para 10 of the
latter judgment, all cases then pending except one (the case now before us)
were treated as disposed of an claimants were permitted to seek further
directions in future as and when the Thareja Committee Report (to which we
shall presently refer) was given. The said report WAS given in May 1996 and
thereafter about 130 I. As were filed in this S.L.P. pursuant to the permission
granted as stated above. We heard there IAs. We have also heard the objections
of the N.D.M.C. to the Thareja Committee Report. Counsel made various
submissions on 6th, 7th & 8th January. Several IAs were rejected at the
time of the said hearing. In some IAs were the claimants were found `eligible' bu
the Thareja Committee, orders were passed adopting the recommendations of the
Committee as orders of the Court subject to "general directions" to
be given in the case now before us. Some IAs of `eiligible' claimants were
adjourned and are being disposed of separately.
We
shall make a berried reference to the events which have taken place hitherto
and then deal with the issues argued before us.
The
first Sodan Singh case- 1989 (4) SCC 155:
This decisions
was by a Constitution Bench of this Court and was rendered on 30.8.1989. It was
held that the right to carry on trade or business was not covered by Article 21
of the Connotation of India but was covered by Article 19 (1)(g) and could be
reasonably restricted by law made under Article 19(6). It was held that hawking
on road - sides fell within the expression `occupation, trade or business' in
Article 19(1)(g). It was also held that all puce streets and roads vest in the
State but the State holds them as trustee on behalf of the public and the
members of the public are beneficiaries entitled to use them as a matter of
right. The Municipality has full authority to permit `hawkers and squatters' on
the side walks wherever the Municipality considers it practicable and
convenient, under the provisions of the Punjab Municipal Act, 1911 (or Delhi
Municipal Corporation Act, 1957). But there cannot be a fundamental right
vested in a citizen to occupy any particular place on the pavement where he can
squat and engage in trading business. Nor can the hawkers assert a fundamental
right to occupy any place permanently on a pavement. If the circumstances are
appropriate and small trader can do some business for personal guanine the
pavement to the advantage of the general public and without discomfort or
annoyance to others, there can be no objection. Hawkers cannot be permitted to
squat on every road. Whether it is located close to a hospital or whether there
is need for security measures in a particular area, etc. and similar eleventh
factors has to be taken into account for permitting business on a particular
road.
Licence
has to be given for trading but this does not mean that licence is to be given
on a daily basis. Regard must be had also to the provisions of the Delhi Police
Act, 1978 and Delhi Control of Vehicular and other Traffic on Roads &
Streets Regulation, 1980. This Court, on a consideration of all the above
factors, directed the New Delhi Municipal Committee to frame a scheme in regard
to the areas or places where hawking / squatting is to be permitted and as to
the number of squatters that could be allowed. The authorities would be fully
justified in refusing any facility to hawkers who sell costly luxury articles.
The right is basically for poor hawkers and not to sellers of luxury items or
smuggled goods. Broadly, these are the directions given in the first Sodan Sing's
case.
The
NDMC Scheme: (10.11.1989) Pursuant to the directions above stated, the N.D.M.C.
came forward with a detailed scheme on 10.11.1989. Under the said scheme, the
N.D.M.C. area was divided into 5 Zones and the places where these squatters or
hawkers could be permitted to trade in each zone were identified. It was also
stated that squatting will not be permitted in certain areas because of certain
unique characteristics of the area or because of the place being
security-sensitive. However, existing permission of Tehbazari or Kiosks in some
of these areas were not to be disturbed. Squatting would not be permitted on
the footpaths or on road so far as major roads are concerned. No permissions,
in verandah of markets which have been declared as public streets, were to be
granted.
Annexure
A of the scheme gives details of places in each zone where squatting/hawking
could be permitted and the total number, of the stalls, kiosks, pan tharas, Mocho
tharas, cycle repair tharas, telephone booths, tax booths, vegetable tharas, tehbazari
or tolerations which could be given in each zone and also those which could be
given on compassionate grounds. Annexure B of the scheme gives the total of
stalls, kiosk, etc. already built as 108 degree and states that the number of
existing permissions for Tehbazari is 228 and tolerations 106. Still, there are
1500 squatters in N.D.M.C. area to be provide for a eligibility of claimants
was to be considered as per criteria stated in para 6 of the Scheme.
Under para
6 of the scheme squatters were divide into 3 categories,
(i) those
before 1977.
(ii) those
between 1978 to 1980 and
(iii) those
between 1981 and 1987.
The
first category who are the senior most, would get kiosks/stalls subject to
availability. Further, "till they are allotted kiosks/stalls, they will be
given permission for tehbazari on usual charges". The second category of
eligible squatters of 1978-1980 will be given tehbazari permission in their
respective area subject to availability f stalls, unless there are kiosks/stalls
available as per their seniority.
The
third category of eligible squatters of 1981 to 1987 would also be considered
for allotment of tehbazari, in case suitable vacant spaces in respective zones
are available for such allotment. A further procedure for reservation was
spelled out as follows:
(a) general
category (60%) ;
(b)
SC/ST category (12 1/2%);
(c) physically
handicapped (10%);
(d)
Ex-serviceman (2 1/2%);
(e)
war-widows (2%);
(f) freedom
fighters (3%);
(g) extreme
hardship and humanitarian grounds (10%).
Paras
7 and 8 of the Scheme mention the conditions for allotment of tehbazari. Only
non-licensable trades excluding sophisticated luxury items, imported or
smuggled goods) are to be permitted i.e. Pan, Biri, Cigarette, etc. No cooking
or sale of food items exposed to dust which could cause health hazard, - was to
be allotted. Para 9 of the Scheme dealt with the
issue of hawking licences. This question of eligibility was to be examined by a
Committee to be appointed.
The Lok
Adalat (Dated 19.11.1989) and recommendation as to `finality'.
After
the Scheme was framed as above, a Lok Adalat, presided by a learned Judge of
this Court and a retired Judge of the Allahabad High Court was held and the
learned Judges observed that the job allotment to individual claimants should
be given to a Committee consisting of 2 members from the N.D.M.C. and a
Judicial Officer of the rank of a District Judge. It was further directed that
"the decision by the Committee shall be binding and final".
In
other words, the decisions of the said allotment Committee was to be final.
Supreme
Court Orders dated 21.12.1989. 1.2.1990. 9.2.1990 We shall next briefly to
refer to certain orders of this Court. It was directed on 21.12.1989 that the
District Judge, Delhi should nominate a judicial officer
with the previous concurrence of the High Court to carry out the suggestion
made by the Lok Adalat. It was again directed on 1.2.1990 that initially 100
cases should be examine. By another order dated 9.2.1990 it was directed that
the Judicial Officer nominated. could even make surprise inspections etc. and
work on a whole time basis.
The
Judicial Officer nominated was Mr. Thareja. He gave an interim repot. On
29.1.1991 this Court noticed that 5000 applications were pending before the Officer.
This Court directed that the Committee will consist only of Mr. Thareja. In a
latter order dated 28.10.1991. this Court stated that the timings 4.00 Pm to
9.00 PM suggested by the N.D.M.C. for the hawkers were not acceptable and that
12.00 Noon to 7.00 PM could be more appropriate.
The
second Sodan Singh Case: [1992 (2) SCC 458] (13.3.196) The second judgment is
dated 13.3.1992. This court, initially rejected the complaint that the Thareja
Committee was applying very strict standards of proof for eligibility and that
this was affecting interests of bonafide claimants.
But in
order to protect genuine claimants, this Court gave a set of nine directions.
We do not propose to refer to all of them except two. Under direction 8, the Thareja
Committee was to draw up a list of squatters/hawkers identified by it.
Under
direction 9. the Committee was to draw up a seniority list of squatters/hawkers
and the Committee was to already identified". All pending cases were to be
treated a disposed of, except one case. No Court was to entertain any fresh
case.
Public
notice & cut off dated (22.5.1992):
As
directed in para 12 of the second Sodan Singh's case, public notice was give
inviting claims before the Thareja Committee and cut off date namely 22.5.1992
was fixed. Pursuant thereto, several claims were received. In all, there were
5627 claims before the Committee, including 126 review petitions.
The Thareja
Committee Report (May, 1996):
The
Committee examined 5627 claims in a very detailed fashion during a period of 5
1/2 years and passed detailed orders in every case, examining the evidence
produced by both sides. We have gone through the Report and have also read a
large number of individual orders passed by the Committee. It was against those
orders that the 130 I. As were filed in this Court questioning the adverse
orders passed against some of the claimants.
We
must place on record our deep sense of appreciation for the tremendous work
dome by Mr. Thareja and the trouble he had taken in completing these cases. He
had also visited the places where the hawking was being done or was claimed as
being done, - on various occasions with or without notice to verify facts. He
has also applied a judicial and humanitarian approach to the problems of the
hawkers. At the sametime, he has also took care to apply principles which
eliminated any possible manipulations by the employees of the N.D.M.C. or
exploitation by them of these squatters/hawkers regarding which there were
complaints before him.
The Thareja
Committee took up the question of identification of sites. Fourteen sub areas
in the 5 zones were identified., Others areas which were not accepted by
N.D.M.C., were subjected to detailed serenity to find out if the objections
raised by the NDMC were tenable. The Thareja Committee, in Chapter II, has
dealt with the individual sites in each zone (page 56 to 310) and took up the
objections to the NDMC in respect of each site, and rejected almost all the
objections of the N.D.M.C., particularly in regard to lucrative areas. The Committee
has given elaborate and very tenable and rational reasons. This part of the
Report is from page 56 to page 310, nearly 250 pages. we shall deal with these
areas lower down. The Committee has also gone into claims of individual
claimants and found only 760 as eligible persons to be accommodated. This
figure is in addition to the cases of `hardship'. The Committee also compiled a
separate volume (volume 2) of the Report in respect of the names of eligible
applicants, their trade, and their seniority and details of the area occupied
(6'x 4' or 4 x 3' or stall - kiosk) along with the photograph of the particular
claimant. The Committee here referred to the 760 claimants and also the other
cases coming under the category of hardship. This volume 2 runs to more than
200 pages. As to eligibility of squatting at various places, the Committee
considered several claimants eligible and made tentative allotments, subject to
final allotment later on. The Committee said (page 38 of its Report):
"Since
the N.D.M.C. is contesting the sites identified, it is yet not finally settled
which sites are available for purposes of allocation to the squatters. The
sites identified have been dealt with in Chapter II....Thus even the list of
squatters is not final as yet. In this views of the matter, no site has ben
allocated to an individual squatter. The scheme of allocation of sites,
however, bas been described in brief in Chapter III. The sites can be actually
allocated only after the identified sites are approved by the Hon'ble Supreme
Court, the Scheme for allocation is approved and also the list of identified
squatters is finalised".
Thus
the occupation of these places by eligible squatters as decided by the Thareja
Committee is only tentative and subject to regular allotment after a decisions
arrived at as to whether the places in regard to which the NDMC claimed
exclusion (see below) would be accepted by the Thareja Committee and by this
Court. The tentative allocation by the Thareja Committee is also subject to
further final allotment on the basis of priorities between the three groups of
squatters i.e. those before 1977 to 1987. Final allotment depended also on
Seniority and reservation ratio of the squatters in each of the three groups.
An
important aspect of timings as to "squatting.
hawkers
" was considered by the Committee (pages 44-45) to say that neither the
hawkers nor the N.D.M.C. officials were acting in accordance with the timings
referred to by this Court in one of its orders dated 28.10.1991. It was pointed
out by the Committee that those who were settling with N.D.M.C. officials were
being allowed all 24 hours while others not so inclined were being harassed and
discriminated against. This resulted din a flood of IAs being filed before the
Committee in regale to timings alone. The Thareja Committee therefore
recommended time schedule as "sun-rise to sun-set" - as has been
granted to tehbazari". We accept this recommendation to the above said
extent. One of the eligibility criteria followed by Thready Committee;
In
respect of the period
(1)
prior to 1977
(2)
1978-80
(3)
1981-87
The Thareja
Committee was prepared to condone absence of proof of squatting/hawking only
for one year. Further the squatting/hawking after 187 putto date of inspection
by the Committee has been also gone into. In other Words those who were
squatting in the periods (withal one year gap) were to be squatting even after
1988. For the period after 1988 also only one year gap has ben condoned. This
principle was followed uniformly. Some claimants whose claims were rejected on
this basis have filed IAs. We have rejected them as we have agreed with the
principles adopted by the Thareja Committee.
Submissions
of N.D.M.C. in this Court in regard to rejection of NDMC's objections to some
sites:
In regard
to the some important and if fact lucrative areas to which the N.D.M.C. had
objection before the Committee and which objections were rejected by the Thareja
Committee, the N.D.M.C. has filed before us its written submissions on
19.7.1997. The said objections (at pp 77 to 84 in the paper book of IA 3/91)
also list out 76 sites for which the N.D.M.C. has no objection. While making
these written submissions, the NDMC has also given number of kiosks and/or tehbazari
which could be accommodated in various places for which there was no objection.
Total number of the available places is also given.
In
addition 7 sites are proposed by the N.D.M.C. mostly for kiosks or for covered Thara
and, one place for 6 tehbazari.
The Thareja
Committee while rejecting the objection of the NDMC in respect of these areas
and including them in the list of acceptable places, has also given the figures
of how many kiosks, squatter or tehbazari can be accommodate in these areas.
Objections
were raised before us by the NDMC in regard to
(i) 26
important places in the various zones,
(ii) place
in Sarojini Nagar and
(ii) six
other places in some zones - in all 33. Learned senior counsel for the N.D.M.C.
Sri R.K. Maheshwari made his submissions in regard to each of these items and referred
to the reasons give by Mr. Thareja and contended that these sites were wrongly
included by the Committee and have to be excluded and further that the reasons
given by the Thareja Committee are not sound.
The
objections of the N.D.M.C. in respect of these sites fall into the various categories
:
(i)
Pedestrians hindrances and major road,
(ii)
falls under development scheme
(iii) adds
to congestion
(iv) disturbs
unique character of Connaught
Place
(v) traffic
congestion
(vi) security
problem and major road
(vii)
over crowded
(vii) over
congested
(ix) no
further scope.
Part 9
of the report of the Thareja Committee from pp 56 to 310 dealing with these
aspects has been read before us by the learned counsel for NDMC for 2 days on
6th and 7th January. taking up item by item. The reasons given by the Thareja
Committee were challenged.
We
have heard these submissions and have also gone through the elaborate reasons
given by the Thareja Committee in regard to each of these 33 places. We do not
propose to record our reasons nor to deal with each item independently.
We are
indeed not sitting in appeal. Further, we are keeping in mind the
recommendation as to `finality' made in the Lok Adalat on 19.11.1989. Further
the plea of the NDMC that certain areas fall under `development scheme' was a
plea not raised before the Thareja Committee and has been raised for the first
time before us. We find that the Redevelopment Scheme prepared by the DDA is of
March 1993 and the NDMC had full knowledge thereof long before May 1996 when
the Thareja Committee Report was submitted to this court. Hence this ground is
liable to be rejected. We are satisfied that Mr. Thareja has based his
conclusions on valid material and on the existing factual position at the
grass-root levee. He has also relied upon factual information gathered from
personal visits made by him to these places and kept in mind the manner in
which, the N.D.M.C. had itself already granted certain kiosks, squatting or tehbazari
rights in these very areas earlier. In our view no exception can be taken to
the reasoning and conclusions of the Thready Committee in regard to these items
and to its ultimate recommendations to the suitability (or otherwise) of these
areas. We do not find any grounds to modify or set aside the recommendations in
regard to these sites. In the result, we accept the recommendation, reject the
objection of the NDMC and therefore these 33 sites would get added to the 76
and 7 sites already mentioned - resulting in 116 sites. (In this connection,
our order in IA No. 114/97 may also be seen).
As
already stated, the Thareja Committee also decided the relative seniority of
each claimant and wherever individual claimants have questioned the adverse
orders passed by the Committee, we have passed separate orders in the IAs.
Subject to the orders passed in the IAs, the recommendations of the Committee
as to seniority are accepted by us.
The
Committee has recommended the procedure that could be followed while making
final allotments. It reads as follows (p.309):
"....the
squatters who have been identified have been shows as per the seniority in the
list of squatters squatting in respective areas. The allocation of sites,
accordingly is to be made as per the seniority of the squatters identified in
the area. To do this, it is proposed that the squatters of the particular area
be invited to give their preference for sites available in that area, with
respect to the trade as approved in consultation with the NDMC. Where a site is
preferred by an individual squatter only, the same be allocated to him. Where a
particular site has been preferred by more than one squatter, then the same be
allocated by seniority or by the system of draw of lots for the first five
senior squatters for one site. A squatter shall be eligible to give his
preference for only three sites so that a large number of applications for one
single site is avoided. Such an approach, it is felt shall not result in
objection from any of the squatters and will be in fair play." In other
words, apart from seniority, each eligible squatter should be allowed three
sites as options in the zone.
We
accept the above procedure recommended by the Thareja Committee and the
recommendation for giving three options in the zone subject only to one
modification that the allocation will be accordingly to seniority as decided by
the Committee and not by draw of lots as alternatively suggested by the
Committee.
The
concluding para of the Committee report reiterates that the allotments made by
the Committee are only tentative and that final allotment has to be made after
this Court passes orders on the Committees Report. This part of the
recommendation (which is similar to recommendations at page 38 of its report)
reads as follows (p.310):
"At
present. it is not possible to allocate a site to an individual squatting in
the area of NDMC as the NDMC is contesting the identified sites and it is not
yet finally decided by the Honorable Supreme Court as to which sites are
available for purposes of allocation to the squatters/hawkers. Various
petitions for directions against the claims rejected by the squatters are still
pending consideration before the Supreme Court. The lists of the squatters also
cannot be said to be final as yet. it is only after the petitions for directions
are decided that the list of squatters can be said to be final and the
identified sites are approved by the Supreme Court. that the task of allocation
of sites can be done. Accordingly, the report is submitted with respect to the
allocation of sites as was desired by the Honorable Supreme Court in its Order
dated 23.9.1994." Therefore, the allocation of palaces, if any, done by
the Thareja Committee in individual cases, is only tentative inasmuch as new
places have been added, seniority is now fixed and three options are to be now
given by each person and question of reservation is also to be considered. Now
that the IAs regarding claims of squatters whose claims have been rejected by
the Committee have also been disposed of by us and the seniority list stands
accepted, and the objections of the NDMC for excluding certain areas stand
rejected, while some areas ares suggested by the NDMC have got added, the stage
is therefore set for final allocation of the sites to the various claimants.
While making allotments for squatters\tehbazari the proportion as to
reservation motioned in the scheme will also have to be followed. We are,
therefore, proposing that after a public notice to be issued by the authority whom
we propose to nominate, claims will be filed in Part I by the eligible
claimants (Part II will deal with arrears of Tehbazari charges).
Arrears
if tehbazari charges:
The Thareja
Committee has recommended that all squatters who have been given seniority and
eligibility for allotment should pay arrears of dues towards tehbazari within 2
weeks and that in case of failure to pay, the claimant would not be entitled to
benefit under the Scheme.
The
said Committee also suggested that all approved claimants - though they were
squatting prior to 1.1.1990 and were allowed to continue under orders passed by
the Committee, - should pay the arrears of tehbazari charges only from 1.1.1990
and that the arrears proof to 1.1.1990 be waived by the NDMC.
So far
as waiver of the arrears of tehbazari charges prior to 1.1.1990 by the NDMC is
concerned, we heard arguments and considered the facts and circumstances of the
case and we accept this recommendation.
So far
as arrears after 1.1.1990 are concerned, it has been stated before us that the tehbazari
charges for a space of 6' x 4' are Rs. 240/- p.m. and that for a space of 4' x
3' are Rs. 120/- p.m. There was considerable argument before us as to whether
in order to avoid dispute as to what is the actual amount in arrears after
1.1.1990. we should fix a lump sum amount applicable to all claimants or
whether we should order an enquiry into individual cases where there is dispute
as to the period of occupation. Having considered this aspect carefully we are
not inclined to fix a lump sum.
We are
of the view that the authority whom we propose to nominate should examine, in
case of dispute, the facts in each case relating to arrears of tehbazari
charges for the period after 1.1.1990 and decide the extent of arrears in each
case after giving a reasonable opportunity of being heard, to the claimants
found eligible by the Thareja Committee wherever there is a dispute as to the
amount of arrear. We also direct that deduction will be given for any amounts
already paid for the period after 1.1.1990 provided adequate proof is produced therefor.
It has
been argued for the NDMC that unless the arrears are paid, the eligible
claimants should not be allowed to conduct their trade at the places
tentatively allocated to them or where they have been lawfully conducting their
trade. We are unable to agree with this contention particularly because we have
directed an iniquity into the arrears after 1.1.1990, wherever the quantum is
in dispute.
We are
of the view pending a decision on arrears that the current tentative occupation
by these persons of any places, as decided by the Thareja Committee, need not
be disturbed.
The
claimants will be permitted to carry on their avocations at the places
tentatively designated by the Thareja Committee, subject of course to final
allotment of places by the authority to whom we propose to entrust the job for
such final allotment.
The
authority whom we propose to designate shall, as per the procedure for public
notice indicated below, require eligible claimants to file in Part II of their
application, details as to the Tehbazari charges paid after 1.1.1990, so that
the issue of arrears, if any, is not raked up after the issue of allotment of
site is finalised. Booth issued could be decided more or less simultaneously,
so that in case the arrears finally determined are not paid, the final
allotment of site could be made to another eligible person by the new
Committee.
Construction
of Kiosks: time to be fixed etc.:
As
pointed by the Thareja Committee, those claimants who are senior most would be
allotted kiosks/stalls as mentioned in the Report. It is however stated by the
learned counsel for the NDMC that the kiosks to be constructed are 92 in number
and that construction of these kiosks at the places identified by the Thareja
Committee would take some time and there is also need for obtaining adequate
budgetary provision for these purposes. Question has also arisen as to whether
at these places where the kiosks are to be constructed by the NDMC, the places
should be kept idle till such time as the kiosks are constructed.
It has
been rightly suggested by Shri Maheshwari for the NDMC that it is not necessary
to keep these places identified for construction of kiosks idle till the kiosks
are actually constructed. In the meantime, those to whom these kiosks have been
allocated by the Thareja Committee tentatively or who have already been authorisedly
continuing, will continue to squat at the places where the kiosks are to come
up and conduct their avocation subject to any final allotment that may be made
by the authority whom we propose to dominate.
It has
been argued for the NDMC that so far as the construction of these kiosks is
concerned, permission may be obtained from Delhi Urban Arts Commission and also
from the Archaeological Survey of India and the Department Capital Territory,
New Delhi. If such a procedure is warranted by law, surely the NDMC may follow
the same. But, in the meanwhile, if tentative allotment is already made by the Thareja
Committee or there are authorised occupants, they will not be disturbed,
pending construction of kiosks.
Further
if there are any `unauthorised' persons at these places where kiosks are to be
constructed - conducting tehbazari or squatting, - such persons shall forthwith
be removed from those places by the NDMC.
In the
event of the Urban Arts Commission or the Archaeology Departments mentioned
above not approving any of these sites for kiosks identified by the Thareja
Committee, the said places shall be available for tehbazari and the authority
whom we propose to nominate, shall consider the said places for tehbazari and
make such allotment as he may deem fit, in accordance with the procedure
already indicated.
For
the purpose of obtaining clearance from the aforesaid authorities, we grant
time to the NDMC putto 30.6.1998. Copy of our order will be communicated to the
above departments i.e. Delhi Urban Arts Commission;
Archaeology
Survey of India, New Delhi and Department of ARCHAEOLOGY, N.C.T., New Delhi.
Immediate
eviction of unauthorised squatters/hawkers:
A
reading of the Thareja Report and connected documents does show that is several
areas unauthorised squatters or hawkers have been allowed to conduct their
operations. It is alleged by the learned counsel appearing for the
squatters/hawkers that this is done is collusion with the NDMC or officers of
other departments and this should be stopped forthwith. In fact, it is
vehemently argued that such unauthorised squatters/hawkers are there in places
in respect of which the NDMC claimed exclusion on pleas of heavy traffic
sensitivity etc. It was therefore agreed before us by the learned counsel for
the NDMC, Sri Maheshwari that these unauthorised squatters/hawkers will be
removed by the NDMC forthwith.
We are
of the view that these persons should be removed forthwith and that it is not
necessary to wait till the final allotment of these sites to the eligible
claimants. We accordingly direct that the unauthorised squatters/hawkers
trading at the places recommended by the Thareja Committee or suggested by the
NDMC - which have now been accepted by us - should be removed by the NDMC
within one week from today and the NDMC shall also ensure that, in future, no unauthorised
squatter/hawker conduct his triad at the places accepted by the Thareja
Committee and by this Court. We make it clear that if the above directions are
violated by the NDMC, it may call for serious action from this Court. It will
also be open to the authority whom we propose to appoint to bring to the notice
of this Court any breach by the NDMC of this direction.
Mode
of issuing public notice. fixing cut-off and procedure for hearing before the
authority:
We
have already stated that for the purpose of final allotment of the places to
the authorised squatters/hawkers as per their seniority, and to consider the
three options of each person, and for the purpose of deciding the quantum of
arrears of tehbazari charges for the period after 1.1.1990, we will be
nominating a particular authority. Question has arisen s to what procedure he
should adopt.
Public
notice: inviting applications - Part I (allotment of sites) Initially he will
issue a public notice that the eligible claimants may submit their applications
in respect of the 116 sites and in Part I of their application they shall state
their claim in regard to the size (whether 6' x 4' or 4' x 8') within the
respective Zones - restricting choice to three places in each Zone - and
quoting their seniority ad decided by the Thareja Committee. (The option in all
will be only for 3 places in the zone). The public notice shall also require
the eligible claimants to state in Part II details of the arrears of tehbazari
charges from 1.1.90 and if there are arrears as on date or not. Public Notice
will be issued in one English and one Hindi Newspaper having circulation in
Delhi in this behalf. Such notices will also be put up at the various offices
of the NDMC. It will also be stated that claimants can purr forward their
claims within three weeks (a specific cut off date is to be given) before which
the applications is to reach the authority whom we propose to nominate. It
shall also be stated in the public notice in the newspaper that for the purpose
of giving the three options, the claimants can ascertain. if necessary, the
details of the location and size of these 116 places for which they would give
their options - from the Notice Board of the NDMC at specified places. We are emphasising
this aspect to obviate any grievance that the eligible claimants did not know
details of the available places in each Zone or the size and to eliminate any grievance
that they did not have a reasonable opportunity of submitting the three
options.
Public
notice - Part II of application: (arrears of Tehbazari) As already stated, we
have also required a statement from the claimants regarding arrears of tehbazari
charges in Part II so that the question of arrears can also be simultaneously
decided and so that in case the amount is decided and not paid and the claimant
loses his eligibility but to non-payment, the new Committee can proceed to
consider if the vacancy so available could be allocated to some other eligible
candidate, if any, who did not got any allotment.
Cut
off date for filing application and further notice of hearing to petitioners or
counsel After receipt of the claims which are received on or before the cut-off
date indicated in the public notice the nominated authority shall issue notices
to the claimants by registered post-A.D. fixing particular dates for hearing.
It could also - if it considers it necessary - issue a general public notice
through the NDMC that eligible claimant who have lodged their claims, could
appear before the nominated authority on or before a particular date, for
orally submitting their case.
The
nominated authority will decide rival options for each place and for the that purpose
it may evolve its own procedure consistent with natural justice. On the
question of arrears from 1.1.1990 also separate orders will be passed. Hearing
will be given to the claimants who could either represent their cases
personally or through counsel, Reasoned orders will be passed by the nominated
authority and the decisions shall be final and shall not be questioned before
any authority, tribunal or court or law or the High Court of Delhi nor in this
Court. In other words, as recommended in the Lok Adalat on 19.11.1989. the
decision of the authority both on questions of allotment of place and arrears
due shall be binding on the claimants and the NDMC as well.
Ban on
further IAs:
We
also direct that as from today, no IAs will be allowed to be filed against the Thareja
Committee Report or against individual orders passed by the said Committee
before it submitted its Report in his Court. The IAs, if any pending, as of
date will be listed for final disposal so that by the time the authority we
propose to nominate, gives its public notice, all the pending IAs are disposed
of by this Court.
We are
giving this direction to put a seal of finality to the decisions of the
authority so that the problems arising out of this PIL case in respect of the
squatters / hawkers which have been pending in this Court since 1989 could come
to an end atleast in 1998.
Change
of trade:
(i) general
right to change in trade:
This
aspect is somewhat important. The first Sodan Singh Case upheld the right to
trade under Article 19(1)(g) of the Constitution of India on the payment and
sidewalks without however, interfering with the freedom of others using these
places. This right could also be subject to reasonable restrictions, if any,
made by law under Article 19(6). As yet no such special law has been brought to
our notice except the Delhi Police Act, 1978 and Delhi (Control of Vehicular and other traffic on Roads and
Streets Regulation) Act, 1980, referred to in the first Sodan Sing's Case. Of
course, certain provisions of the Punjab Municipality Act, Rules or bye laws thereunder
could also be relevant. In addition, the Scheme issued by the NDMC pursuant to
orders of this Court permits non-licensable trades (excluding luxury and
smuggled outlets) Further this Court had also stated in the first Sodan Singh's
Case that the grant of hawking/squatting right is not meant for luxurious items
or smuggled goods.
In IA
No.83 of 1995. in which we have today passed a separate order, the claimant, Bishwanath
Roy, who was trading in `tea' wanted to change over to garments. The NDMC took
the stand that it had a discretion either to grant or not to grant the change
in trade to garments and it would take up the issue after the Thareja Committee
gave no objection. The Thareja Committee did not pass final orders but dealt
with this question in its report. It pointed out that absolute discretion for
change of trade even in respect of non-licensable trades cannot be granted to
the NDMC and that, for exampled there are some locations where the business of hawkers
could yield substantial gross income per day and therefore abuse of discretion
by the NDMC officials could not be ruled out. Bearing all these factors in
mind, we have allowed IA No.83 of 1995 for change of trade to garments in that
case as such trade was not unlawful and was not one in `luxurious goods' or
`smuggled goods' and we added the NDMC could, at the most, imposer reasonable
with Article 19(1)(g) (and Article 19(2). We have also stated that in the
matter of change of trade, if the NDMC's orders or the conditions imposed are
unreasonable or arbitrary or contrary to any provisions of law, if would be
open to the aggrieved parties to avail all remedies at law. We reiterate the
same position in this order also.
(ii)
Lotteries:
In
certain cases the eligible squatters were presently selling lotteries which
have since been barred. As agreed to before us by some counsel appearing for
those selling lotteries, such claimants will, apply to the concerned authority
in the NDMC for change of trade. The NDMC shall, if such new trade is not a
prohibited one nor one relating to imported or luxury items, grant the request
for change in trade. Such claimants will indicate in Part 1 of their
application as to whether they have (or are proposing to), applied for change
of trade from lottery to any other non- prohibited trade.
Appointment
of Shri V.C. Chaturvedi and infrastructure:
We
hereby nominate Sri V.C. Chaturvedi, presently working as Joint Registrar in
the High Court of Delhi to undertake the various duties and functions
enumerated as above (which are again summarised below) and complete the job, as
far as possible, within a period of a 6 months from the date of receipt of this
order. We request the High Court of Delhi to spare his services, during the
remaining period of his service as Joint Registrar in the Delhi High Court, for
the aforesaid purpose. ( We are passing separate orders in connection with his
remuneration, in this very SLP.) We direct the NDMC to issue orders directing
the Directorate of Estates and the Director of Enforcement to help and
implement the decisions or directions or orders of Sri V.C. Chaturvedi. The
NDMC is directed to provide a place for the office of Sri V.C. Chaturvedi,
clerical staff, stenographer and class IV employees and all other
infrastructure required by Sri V.C. Chaturvedi for the purpose of facilitating
early disposal of the matters. If any assistance or clarification is required
by Sri V.C. Chaturvedi, it shall be open to him to seek appropriate directions
from this Court by filling IAs in this SLP, even though this SLP is disposed
of. Nobody else will be entitled to file any application or proceedings before
any other tribunal, Court of law, High Court or this Court to challenge any
orders passed by Sri V.C. Chaturvedi on any ground whatsoever.
Summary
of procedure to be followed by the Chaturvedi Committee and N.D.M.C.
1. Sri
Chaturvedi Committee (sole member) shall issue public notice in an English and
a Hindi Newspaper (expenses to be borne by the NDMC) within 15 days from today
permitting the eligible claimants so found eligible by the Thareja Committee to
submit their application in Part I. containing options in regard to the
identified places and sizes (whether 6' x 4' or 4' x 3') in the particular zone
to which these claims belong. The public notice in he newspaper will state that
the details regarding the available sites and their locations and size is put
up on the Notice Boards of the NDMC at various place, whose addresses are
given.
The
notice will also require the claimants to state in Part II of their
applications the details as to payment of Tehbazari charges due after 1.1.1990
and if there are or nor any arrears as on date. The notice will also be put up
in the varies offices of the NDMC within the above said period.
The
notice in NDMC office will also give a detailed list of the places available
for squatting/hawking and stating whether it is a kiosk/stall or a place for
mere vending on Tehbazari basis as decided by the Thareja Committee and
indicating their sizes (6' x 4' or 4' x 3').
2. The
eligible claimants will be given 3 weeks time to file in Part I of their
application their three options, indicating the zone concerned, their seniority
as decided by Thareja Committee, stating whether they come under any
reservations category, the type of trade they have been trading in or the new
trade for which they have applied to the NDMC and such other particulars as may
be called for or relevant. In Part II the eligible claimants shall specify if
they have made payments of Tehbazari arrears due for the period after 1.1.1990
and it there are any arrears as on date.
3.
After receipt of the claims, Committee shall issue notice to the concerned
parties and the NDMC in regard to each of the places at which squatting/hawking
is permitted as per the Thareja Committee Report and decide on the basis of
seniority and reservation, size of place and such other relevant material as
may be placed before the Committee, as to who should be allotted at what place.
The Committee shall fix up dates of hearing by issuing Registered A.D. notices
to the parties concerned. (The expenditure in this behalf shall be borne by the
NDMC.) The Committee shall give an opportunity of being heard and pass reasoned
orders and its decisions shall be final and shall not be questioned before any
other authority, tribunal, Court, nor the High Court nor in this Court.
4. It
shall however be open to Sri Chaturvedi to obtain, if necessary, such direction
or clarifications from this Court by way of filing IAs in this SLP, even though
it is now disposed of.
5. The
claimants will be permitted to appear before the Chaturvedi Committee either in
person or through their counsel.
6. In
case it is decided by the Chaturvedi Committee after the hearing of the case in
Part II that any eligible claimant is in arrears of tehbazari dues for any
period after 1.1.1990 then the said Committee shall fix a date before which the
arrears have to be paid and informing that if the amount is not paid by that
date, the claimant will lose his claim for the kiosk/stall or for the place. In
case the claimants rights cease as stated above, the Chaturvedi Committee will
consider if the vacancy can be allotted to any other claimant already declared
eligible by the Thareja Committee.
7. In
case any of the placed found eligible for kiosks/stalls by the Thareja
Committee are not accepted by the Urban Arts Commission or the Archaeological
Survey of India and the Department of Archaeology of the Govt. of NCT, the said
places meant for kiosks/stall shall be available for tehbazari and the Chaturvedi
Committee shall pass appropriate orders of allotment on that basis. As and when
the above said authorities inform the NDMC that the places earmarked for
kiosks/stalls are not acceptable for that purpose, the NDMC shall inform the Chaturvedi
Committee about the said decision. (We have already observed that pending
construction of kiosk/stall the claimant tentatively allotted the place or
other person authorisedly using the place for vending on Tehbazari; shall
continue. We also said unauthorised persons vending at these places be evicted
by the NDMC forthwith.) For the purpose of obtaining clearance for the said
authority, the NDMC is granted time putto 30.6.1998 and for construction of the
Kiosks/stalls putto 31.10.1998.
8. In
regard to eviction of unauthorised squatters of other persons using the placed
identified by the Thareja Committee the NDMC has undertaken to have them
evicted forthwith and in case this is not done, it will be open to the Chaturvedi
Committee to bring it to the notice of this Court for appropriate orders, as
stated earlier.
9. The
NDMC in general and the Director of Estates and the Director of Enforcement in
particular will help and implement the decisions, directions or orders of Sri V.C.
Chaturvedi. The NDMC shall also provide the other infrastructure to Sri Chaturvedi
as stated in the main body of this order and pay his remuneration (in regard to
which we are passing separate orders in this SLP).
10.
The decisions of the Chaturvedi Committee both on the question of allotment of
the kiosk/stall or the sites for tehbazari and also as to quantum of arrears of
tehbazari shall be final as indicted in the body of this order and shall not be
questioned either by the claimants or the NDMC before any authority. Tribunal,
a Court of Law, the High Court or in this Court. No petition shall be
registered in this behalf by the above bodies. We have only permitted the Chaturvedi
Committee to file IAs in the appeal seeking any direction or clarification and
none others. So far so orders of NDMC in regard to change of trade, it is open
to the affected parties to resort to all appropriate remedies. We have so
permitted Sri Chaturvedi to move this court in certain respects.
The
above summary is in addition to directions contained in the main body of this
Judgment. The Civil Appeal stands dispose of.
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