Full Judgment Text
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PETITIONER:
SODAN SINGH
Vs.
RESPONDENT:
N.D.M.C. & OTHERS
DATE OF JUDGMENT: 04/02/1998
BENCH:
S.B. MAJMUDAR, M. JAGANNADHA RAO.
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
M. JAGANNADHA RAO, J.
I. 83/1995: (Bishwanath Roy)
Clemant has been found eligible but only for business
in ‘tea’. The applicant’s place of garment business war not
accepted. According to him he cannot, due to illness, carry
on tea business.
The Committee found in its order dated 12.12.1990 that
the applicant did the business form 1980 to 1989 was
entitled only to trade only in tea and could get a
stall/kiosk for tea business in I.O.B. area.
Petitioner then applied to NDMC on 9.3.1994 for change
of trade to ’garments’ on account of ill-health-NDMC filled
reply dated 2.8.1995 before the Thareja Committee that they
can consider change of trade form food items to other item
only if no objection is given by Thareja Committee and
thereafter they will consider the case on merits.
Committee noted the submissions on 2.8.1995 and said
that the matter will be dealt with in main Report.
At pp. 41-42 of the main Report, the Committee pointed
out that NDMC wanted to have the discretion in regard to
applications for change of trade to be totally reserved to
it. The Committee said that if discretion it to be given to
he NDMC it is most likely that it will be abused. For
example, the Committee said, if garment trade is allowed at
Indian Oil Bhawan, a squatter can earn Rs. 2000/- per day.
We agree that the right to carry on trade in any
permissible commodity cannot be allowed to be controlled
totally by the NDMC at its sweet will. There is as yet no
law made under Article 19(6), except the scheme framed under
orders of this Court by the NDMC. Therefore, if a trader
wants change in the trade, we do not see how it can be
rejected, as long as it is a permissible trade. Such change
of trade has to be granted subject of course, to any lawful
conditions that the licensing authority could impost. What
we have said above is, of course subject to the terms of the
scheme regarding licensable or non-licensable tradings and
also subject to the earlier observations of this Court in
the first Sodan Singh’s Case that the scheme is not meant
for luxury items or smuggled goods.
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We, therefore, hold that the applicant’s application
for change of trade to ‘garments’ cannot be denied. When he
is an eligible squatter, there is no question of restricting
his trade to tea business only. The NDMC will issue orders
of change in trade from tea to garments because it had
taken a stand earlier in its reply dated 2.8.1995 before the
Thareja committee that it will take up the matter as add
when no objection is received from the Thareja Committee.
This IA is therefore allowed accordingly directing the NDMC
to permit change in trade to ’garments’ so far as the
petitioner is concerned.
In case any change of trade is disallowed and parties
are aggrieved, they shall be entitled to resort to
appropriate legal remedies, subject to the principles laid
down above. IA allowed as stated above.
IA 114.1997 (Smt. Laxmi & 30 Others)
This IA is by the verified eligible squatters as
declared by the Thareja Committee. Their contention is that
various states were referred to by the NDMC in its scheme of
place submitted to the Court on 14.2.1997 but in a latter
scheme date 21.7.1997 of the places, Site No. 1 adjacent to
boundary wall of NDMC parking and Jeevan Bharti - towards
existing tehbazari sites/shops and also towards mochi tharas
sites - for four kiosk-22 tehbazari, has now been omitted.
It is pointed out further that this site which was accepted
by the Thareja Committee in its report at various places (p.
105, 108, 110, 115 of its repot) is now included in the list
of objectionable items, at serial No, 33.
In view of the rejections of the objections of the NDMC
in regard to the various places, we accept this application
and the proposal to delete site No. 1 of the scheme dated
14.2.1997 is rejected. Site No. 1 shall remain as one of the
accepted sites. IA is disposed of accordingly.
I.A. 33/994: (Shiv Kumar Sharma).
The claim of the petitioner has been rejected by the
Thareja Committee on the ground that petitiner produced
evidence of squatting only from 1986, 1987 and not after
1988 upto 1992, his calaim has been rejected on the ground
that for the period (the 3rd category) of 1981-87, he had
shown evidence only for 2 years.
A principle that only a gap of one year will be
condoned has been followed by the Thareja Committee
uniformly. The Committee also found it necessary that the
squatting or hawking of those in the three groups must be
upto the date of inquiry. Were of the view that these
principles are relevant and has been uniformly applied. We
have dealt with this aspect in out main order also. Hence
the rejection of the petitioner’s case does not call for
interference. IA is rejected.
I.A. 38 of 1994 (Sanjay Pamnani)
The petitioner has been found eligible but he was
selling lotteries. Counsel for petitioner agreed that
petitioner will apply for change into another trade which is
permissible in law. He will apply to the NDMC accordingly
and if the trade for which change is applied is lawful, the
NDMC shall permit the same. (In fact, the question of change
of trade from lottery was also there in IA No. 89/96 & IA
No. 122/96 and the said parties have also to apply
separately). Directions in this behalf are also contained in
an general order passed in the main Civil Appeal today. IA
disposed of accordingly.
I.A. 45-46 - (Vinod Kumar).
I.A. 46 for condonation allowed.
The petitioner is found to be a genuine squatter but
not eligible because he had no proof after May 1988 and he
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produced only photo copies for 1987-88. We are of the view
that the rejection of his claim by the Thareja Committee is
correct and the case does not warrant interference. IA is
rejected accordingly.
I.As 47-48: (Satya Narain Vijay).
In this case, the claimant has been found eligible for
a size of 6’ x 4’ to carry on trade of book and magazines,
with stationery from 17.2.1983.
His case will be governed by the general directions
given in the main order IA disposed of accordingly.
I.A. 56-57: (Ram Gopal)
I.A. 58-59: (Ram Gopal)
The claim of the petitioner was rejected by the Thareja
Committee on 15.4.1991. Review Petition was also rejected on
26.8. 1992.
We have perused both the orders. In the first order,
the Committee has given reasons to show that the petitioner
had managed to obtain receipts of another person by name Ram
Gopal dealing with fair articles at All India Radio. Photo
copies were filed and not originals. Receipts related only
to the period between 1978 to 1983. The claimant started
squatting in 1988 after obtaining the receipts of one Ram
Gopal who was dealing in Tikki. We do not find any reasons
for interference with the findings of fact.
We have also seen the order passed in review. It is
true that the first order was before the judgment in the
second Sudan Singh’s case dated 13.3.1992 complaining that
the Thareja Committee was applying very strict standards of
proof. But as stated in our main order, this plea was
rejected by this Court in the second Sudan Singh’s case. But
as this Court permitted fresh applications, the review
petition was filed. Alongwith the review application, the
petitioner filed one cash receipt to say that be bought 800
fashion pieces at Rs. 6/-. The Committee once again
considered the evidence now produced as well as the evidence
produced before the first order dated 5.4.1991, and held
that there was only one receipt for 3.8.1983 and the rest of
the receipts were from August 1988: There was no proof at
all from August 1983 to 1988. Hence the minimum proof was
lacking. The evidence produced in the review application is
not related to any receipts from Government of NDMC.
The petitioner obtained stay order from this court on
29.8.1988 and produced a large number of receipts after
23.8.1988 and in the absence of even one receipt for 1987,
the Committee rightly rejected petitioner’s claim.
It will be noticed that the three relevant periods are
(1) prior to 1977 (2) 1978-80 and (3) 1981-1987. Petitioner
had a gap of 4 years as he had no receipt after 1983, hence
he cannot come in the third category. Merely filling
receipts after 1988 cannot help because there is no such
category falling for consideration.
Hence these applications are rejected.
I.A. 62-63: (Shankar Gupta & Anup Kumar)
The claimants are brothers and the claim has been
allowed by the Thareja Committee in its order dated
14.2.1994 to the effect that they are together entitled to
one site 6’ x 4’ with seniority from 4.7. 1964.
In the event of NDMC giving them both, tehbazari rights
jointly, then the parties agreed that applicant No. 1
Shankar Gupta be given the rights. Accordingly the relief
was granted by the Thareja Committee to Shankar Gupta.
In this petition before us, It is contended that
Shankar Gupta was selling b ooks and magazines in a verandah
in N Block Connaught Circus since 1984 and Anup Kumar since
1086, in the same verandah, separately in books and
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magazines. They are said to at a distance of 25’ x 30’ from
each other.
The Committee agreed to give only one site since prior
to filing claim in 1990, the brothers were joint in
business, both selling from one site. The conclusion of the
Committee that prior to 1990 both were selling at same site,
has been attacked as being based on no evidence.
We are unable to interfere with the finding of the
Committee as we are not sitting in appeal. As stated in our
main order, it was intended that the Thareja Committee’s
decisions would be final. The Committee has, in fact,
examined the ration cards, the place of living, and the
documents and what the parties stated in cross-examination
and arrived at its findings. We cannot agree that the
findings are based on no evidence.
Hence these applications are rejected.
I.A. No. 65, 66 : (Laxmi Narain)
The Thareja Committee, by its order dated 5.1.1995,
which rum into nearly 10 pages, rejected the case of the
petitioner. It was noticed that he applicant’s father Prabhu
Dayal had been allotted Shop No. 12, Mini Marker, Janpath,
in respect of same site which the applicant has been
occupying and hence, the applicane cannot be given any other
site.
Petitioner’s case before us is that his father was
occupying a place in the middle of Janpath while petitioner
was occupying a place at the corner of Indian Oil Bhawan,
near Janpath Lane.
The Thareja Committee said that the Committee visited
the area of Indian Oil Bhawan, during the period, over 100
times. The inspection notes are set out and applicant was
never there,. It was only on 9.9.1994, the applicant was
found. Otherwise, only his servants were there. In fact, in
the name of the applicant, there is a golegapppa shop,
choley-bhaturey shop, Alloo-tikki sh op, a Bhelpuri Shop and
dahi-bara shop. In addition, applicant has a shop at B-27
Dak Wali Gali, Shakarpur, Delhi. It was rightly inferred
that applicant must have been busy attending to shop No. 12,
Mini Market. Janpath of his father while he is running other
ships with servants. The Committee verified records of the
NDMC and from the receipts there, it was informed that
applicant was found doing business only at this father’s
place. We are in agreement with the reasons given by
Thareja Committee that the applicant has not made out any
case for separate allotment of another site. The application
is dismissed.
I.A. 73: (Kamla Devi)
The Thareja Committee, on a consideration of the
evidence produced, stated that applicant is not a genuine or
bonafide squatter and that other persons are working under
her name. This was what was revealed even from inspections
by the Committee on various dates. We agree with the
finding. The I.A. is dismissed.
I.A. 96: (Madan Lal)
I.A. 97: (Chander Pal)
These two IAs have been put by the Thareja Committee
under the 10% hardship quota. We accept the said
recommendation. IAs disposed of accordingly.
IA 106-107: (Nam Dutt, Hiralal, Sita Ram, Khachera)
These IAs concern the above said four persons who were
petitioner 1, 4, 6 and 9 in Writ Petition 1348/1987 filed
earlier in this Court. Their cases were accepted by the
Thareja Committee. Their cases for appropriate final
allotment will be considered by the Chaturvedi Committee.
IAs disposed of.
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IAs 108, 109: (Ramesh Chander)
The Thareja Committee, in its order dated 30.8.1991,
found that this applicant is entitled to a stall at Malcha
Marg or with seniority from 2.7.1994. Petitioner has since
died.
The Thareja Committee passed an order allowing the
applicant’s wife, Smt. Surema Devi to ’represent’ but
refused to grant any interim relief as she is not personally
squatting.
We agree that she would be recognised in the place of
her deceased husband and with the same seniority. Her case
for allotment of stall/kiosk etc will be considered in
accordance with the seniority of her deceased husband.
Matter disposed of accordingly.
I.A. No/1997: (Lalit Kumar & Others)
It was contended in this case that while the Thareja
Committee followed a principle of condoning one year gap for
each of the periods (1) before 1977 (2) 1978-80 and (3)
1981-87, it was not applying the same rule for those who had
been squatting say from 1987 and upto 1996- when the inquiry
was completed and report was submitted. The matter was
argued at length by Sri R.F. Nariman. (This aspect has been
dealt with in the main order).
Upon hearing counsel, were found that the Committees
has followed the same principle even after 1987. In other
words for those who, for example, started squatting in 1987
an d who continued upto say 1996 when the inquiry ws
completed, if there was a gap of one year, it was condoned
but not if there was a gap of more than one year.
In this case, the gap af ter 1987 was for more than one
year and the claims were rightly rejected. IA rejected.
I.A. 120/1997 (Jagdish)
Petitioner has been, in the order dated 30.7.1993 of
the Thareja Committee, found eligible and entitled to a
stall. The IA is filed only because the Committee did not p
ass interim others in favour of the petitioner.
We are not passing any orders at this stage.
petitioner’s case will be dealt with by the Chaturvedi
Committee. Petition disposed of accordingly.
IA 125-126/1997: (Smt., Manju Maine)
The case of the petitioner was rejected by the Thareja
Committee by order date 3.9.1993. The order runs into 6
pages and considers the evidence in detail. It was found
that petitioner manipulated the receipts. We agree with the
findings. Application if rejected.
I.A. 67
This is application filed by Sri Thareja fro
fixing remuneration, etc. for the work done after being
nominated to go into various issues concerning the
squatters/hawkers in NDMC area. Inquiry was conducted for a
period of more than five years.
During the course of the hearing of the main SLP, we
had occasion to go through the papers and the enormous work
done by the Committee with great industry, care and
commitment to a cause. M ore than 5000 cases have been
scrutinised and separate orders passed with reasons. Again,
two volumes of the Report have been submitted to the Court.
Elaborate inquiry was conducted as regards the places where
the a kiosks/stalls could be located or business or
tehbazari could be conducted. These details are in one
volume. Another volume deals with seniority of the
claimants. We have placed on record, in our main order, our
deep appreciation of the services rendered by Sri Thareja.
After considering the extent of the work and keeping in
mind all factors including the fact that Sri Thareja was
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working full time on this work and was however receiving his
normal emoluments as an Additional District & Sessions
Judge. We are of the view that a reasonable sum be paid to
him in addition to what Sri Thareja h as drawn as his normal
emoluments as a District Judge. We notice that in fact he h
ad visited the various places where the squatters were
claiming that they were conducting their business. Most of
them were surprise visits. Several hundreds of such visits
had to be made while checking up the claims of more than
5000 claimants. Keeping all these aspects in mind, were are
inclined - in the place of the quantum claimed - to grant a
sum of Rs. 50, 000/- only and we accordingly direct the NDMC
to pay to Sri Thareja the said sum within two weeks from
today. The IA is disposed of accordingly.