JUDGMENT
A.K. Sikri, J.
1. The petitioners, who are five different
traders’ associations, representing the traders of
Bhagirath Palace, Chandni Chowk, Delhi have filed this
writ petition by way of Public Interest Litigation.
They are concerned with the squatters in this area.
The prayer made in this writ petition runs as under:
1. To issue an appropriate
writ/order/directions in the nature of
MANDAMUS whereby the respondents be
directed to refrain from issuing and/or
allotting any place on Mor Sarai road,
either road or pavements, for being used
as hawking and squatting sites by the
hawkers and squatters;
CWP NO:7741/2000
2. Further directions to the respondents in
the nature of a declaration that Mor
Sarai (shown more appropriately in RED in
site plan) would remain on AS IS WHERE IS
BASIS and that there can be no change of
user of the said place by respondents in
any manner by allotting any space over it
for use as hawking and squatting sites;
3. The Land & Estate Department of MCD be
directed to file a site plan of the said
Mor Sarai Road stating therein the area
of pavement existing at present.
4. Further direction to appoint Local
Commissioner which may comprise of
Officers of MCD, Delhi Fire Service,
Delhi Traffic Police and Office bearers
of petitioner Associations to apprise
this Court of the factual position in
regard to Mor Sarai Road and/or the site
where it is proposed to allot Tehbazari
sites.
2. From a perusal of the aforesaid prayer it is
clear that the petitioners are aggrieved against grant
of Tehbazari rights to the hawkers and squatters on Mor
Sarai road and pavements. It is stated in the writ
petition that although Mor Sarai road is a
non-squatting zone, the respondents are proposing to
issue Tehbazari licenses to the hawkers and squatters
which would create inconvenience to the general public,
shopkeepers of the market as well as residents of
Railway colony known as Mor Sarai colony. It is
mentioned that this road is 30 ft.wide inclusive of
pavements and on this narrow road no further congestion
can be afforded by allowing the squatting of the area
by hawkers and squatters. It is, inter alia, stated in
the writ petition that even presently the said road
remains jam packed throughout the day due to heavy
movement of pedestrian and other vehicular traffic and
that unauthorised hawkers and squatters are also
squatting on the said road. It is further stated that
the proposed change of user of the said Mor Sarai road
would not only lead to more congestion, choking of
roads and traffic jams but would also lead to loss of
trade and business for the shopkeepers and businessmen
of the area. It is stated that in the vicinity of Mor
Sarai there are four schools including the MCD Primary
School, Presentation Convent School and Kucha Jogdhyan
Senior Secondary School for girls. It is also stated
that the Dhalao on Mor Sarai is the only place from
where the truckloads of garbage are lifted by the
Municipal trucks. On the said road are installed the
high tension transformers by the Delhi Vidyut Board.
Also various civic amenities such as MTNL cables,
electrical wires of DVB, sewer lines of the Sewerage
department pass underneath the road on Mor Sarai road.
All these amenities require frequent maintenance by the
departments concerned and in case any hawking and
squatting or Tehbazari is permitted then carrying out
the maintenance services would become all the more
difficult and the woes already being suffered by the
shopkeepers would also aggravate. It is also stated in
the writ petition that taking into consideration the
fact that the respondent MCD proposes to give Tehbazari
sites to hawkers and squatters on Mor Sarai road, it
has completely forgotten the fact that a statutory duty
is cast upon it to keep in mind that all policies
proposed to be implemented should more be in the
interest of the general public rather than against the
public policy. The Supreme Court as well as the
Govt.of NCT of Delhi and the Union Government are
making concerted efforts and plans to decongest the
walled city but the officials of MCD have other things
in mind and are using their energies in the wrong
direction for their personal gains.
3. The grant of Tehbazari licenses by MCD to
hawkers and squatters in different parts of Delhi has
chequered history. As per the averments made in the
writ petition which are substantially undisputed, the
first petition in this respect being CWP No. 552/87
entitled Rajinder Kumar Vs. MCD was filed in the Apex
Court. On 31st October, 1987 an order was passed in
this writ petition on the assurance given by the
counsel for the MCD to the effect that the MCD shall
furnish a list of all areas available for Tehbazari
licenses under its jurisdiction and shall also provide
a site plan indicating the localities of such areas.
Thereafter another writ petition, namely, Gainda Ram
Vs. MCD (1687/87) the Supreme Court passed the
following order on 12th May, 1993:
“The MCD will also ensure that future
encroachments do not take place defeating
the rights of existing squatters/hawkers
governed under the scheme. It will also
protect the interest of the shopkeepers
as they too have a similar right under
Article 21 of the Constitution.”
4. It is not in dispute that matters concerning
squatters/hawkers have come up before the Apex Court in
various cases and directions in these cases were passed
from time to time. The relevant order would be order
dated 1st May, 1997 in the case of Gainda Ram and
Others Vs. M.C.D. and Others . The portion of the said order, material for our
purposes, reads as under:
“A fresh exercise is ordered to be
carried out by the Municipal Corporation
of Delhi to identify new approved
squatting sites in all the Zones. The
Zonal Heads, Administrative Officers of
the Zones, representative of the Traffic
Police and two or three representatives
of the hawkers of the zones selected on
random basis shall identify fresh
squatting zones so that squatters are
properly rehabilitated and not simply
uprooted to deprive them of their
livelihood…….
After finalising the list
of……approved squatting zones fresh
preference applications shall be invited
and thereafter allotments be made first
in accordance with preference
applications…….”
5. After the aforesaid order the Zonal Committees
were constituted by the MCD in 12 Zones. Thereafter,
another order dated 13th April, 2000 was passed by the
Supreme Court directing the MCD to complete the
identification of squatting sites.. It was followed by
order dated 28th July, 2000 directing the MCD to file
an affidavit stating the squatting and non-squatting
sites identified by the Zonal Committee along with map
showing the squatting area in `Green’ and non-squatting
area in `Red’. Vide order dated 4th August, 2000 the
Supreme Court accepted the aforesaid report of the MCD.
The relevant portion of this order reads as under:
“In the light of the affidavit in I.A.
No.317 dated 02nd August 2000 filed in
the Court today on behalf of M.C.D.,
which is accompanied by a site plan, it
is seen that areas marked in red colour
are not treated to be squatting zones but
the lanes marked in green colour are
shown to be squatting zones. Learned
counsel for the applicants in these
applications submit that at least in the
admitted areas which are shown to be
squatting zones marked in green colour
and where, according to her, squatters
are already squatting, they may be
permitted to squat. So far as the areas
shown in green colour in the site plan
are concerned, learned counsel appearing
for the shopkeepers had no objection.
Learned counsel for the M.C.D. also has
no objection. Therefore, in the light of
what is stated in paragraph 4 of the said
affidavit as regards New Lajpat Rai
Market and Lajpat Rai Market, no
squatting in front of the said markets
abutting Subhash Marg and Chandni Chowk
is permissible. Subject to that
exception, in the areas marked green in
the site plan the applicants, if they are
already squatting, will be permitted to
squat till furthers in the other I.As.”
6. As per the counter affidavit filed by the MCD,
the matter was listed again on 1st December, 2000 when
the Supreme Court gave general directions to the MCD to
complete the work of allotment sites in the identified
squatting areas within two-three months. This
affidavit further states that Mor Sarai has been
identified as squatting area and since the squatting is
permitted there, the MCD can give Tehbazari licenses in
this area. It is further stated that the MCD would not
allow squatting in the area which has been identified
as non-squatting. Mr.D.K.Mehta, learned counsel
appearing for the petitioners, submitted that the site
plan filed before the Supreme Court, copy of which was
filed in these proceedings as well, was not correctly
prepared and further that he argued that permitting of
squatting on that area in question would lead to
various difficulties as pointed out in the writ
petition.
7. Having heard the learned counsel for the
parties and in view of various orders passed by the
Hon’ble Supreme Court, we are of the opinion that the
grievances, if any, of the petitioners can be taken up
by the petitioners by filing appropriate proceedings in
the Supreme Court only as, MCD has treated the Mor
Sarai as squatting zone which has been permitted by the
Supreme Court. This court therefore cannot pass any
order or give any direction to the MCD which would be
contrary to the directions given by the Supreme Court.
8. This writ petition is accordingly dismissed
with liberty to the petitioners to approach the Supreme
Court for appropriate directions.