REPORTABLE
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
Page 1 of 20
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
Page 2 of 20
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
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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 concerned authorities.
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.
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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 them relief.
Consequent thereupon, 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
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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.
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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
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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 question.
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
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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
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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.
Page 10 of 20
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
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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
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tehbazari sites are not being considered but instead the authorities have
started the eviction process.
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/ zoning plans.
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.
Page 13 of 20
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.
Page 14 of 20
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 Delhi.
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
Page 15 of 20
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
Page 16 of 20
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
Page 17 of 20
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
Page 18 of 20
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 are disposed of.
………………………..J.
[S.B. Sinha]
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…………………………J.
[Dr. Mukundakam Sharma]
New Delhi,
April 9, 2009
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