Full Judgment Text
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PETITIONER:
SAUDAN SINGH AND ORS. ETC.
Vs.
RESPONDENT:
N.D.M.C. AND ORS. ETC.
DATE OF JUDGMENT13/03/1992
BENCH:
AHMADI, A.M. (J)
BENCH:
AHMADI, A.M. (J)
RAMASWAMI, V. (J) II
RAMASWAMY, K.
CITATION:
1992 AIR 1153 1992 SCR (2) 243
1992 SCC (2) 458 JT 1992 (2) 190
1992 SCALE (1)679
ACT:
Constitution of India, 1950-Article 19(1)(g)-Public
Street-User by citizen-Scope of-Street-trading-Whether a
fundamental right-Right of a hawker-Ambit of.
Constitution of India, 1950-Article 32,136-Deciding the
question of livelihood and survival of large number of
families-Whether Court to adopt compassionate approach-
Claims of genuine squatters/hawkers-Determination-Court’s
directions to NDMC and MCD.
Constitution of India, 1950-Article 32,136, 19(1)(g)-
Petitions by hawkers-Pending-Their claims to be finalised-
Court’s direction on listing of new petitions.
HEADNOTE:
The petitions under Article 32 of the Constitution and
certain appeals under Article 136 of the Constitution filed
against adverse judgments of the High Court, were referred
to a Constitution Bench for deciding the grievance of the
pavement-traders that the Municipal Authorities were
violating their fundamental rights under Articles 14,
19(1)(g) and or 21 of the Constitution by refusing to permit
them to trade on street and footpaths in different
localities of the city of Delhi, under the respective
control of the NDMC and MCD.
The Constitution Bench in Sodan Singh & Others v. New
Delhi Municipal Committee & Others, [1989] 4 SCC 155 held
that the right to carry on trade or business mentioned in
Article 19(1)(g) of the Constitution on street pavements, if
properly regulated, could not be denied on the ground that
the street pavements were meant exclusively for pedestrians
and could not be put to any other use; that the right of a
pavement-hawker was subject to reasonable restrictions under
clause (6) of Article 19 of the Constitution and the State
as trustee was entitled to impose all necessary limitations
on the character extent of user by such pavement-hawkers;
that there could not be a fundamental right of citizen to
occupy a particular
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place on the pavement where he would squat and engage in
trading business, that a hawker could not assert a
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fundamental right to occupy permanently specific places on
any pavement, that the right to carry on any trade or
business and the concept of life and personal liberty
enshrined under Article 21 had no connection whatsoever and,
that Article 21 had no application.
After stating the law, the Constitution Bench remitted
all the petitions to the Division Bench for final disposal.
After the decision rendered by the Constitution Bench,
several other writ petitions came to be filed in this Court.
NDMC Cases
This Court by its order dated 21st December, 1989
appointed a committee, known as the Thareja Committee. In
the light of the NDMC’s Scheme vide Resolution No. 28 dated
10.11.1989 and the decision in Sodan Singh the Committee
examined the claims made by the squatters and identify
street pavements in different areas were street hawking
could be regulated without being a hindrance to other users.
A direction was also given by order of 23rd March, 1990
that pending receipt of the report from the Committee
hawking would be permitted subject to the same being
regulated in sensitive areas.
During preliminary scrutiny, the Committee found that
’takhats’ were given on hire by those who claimed to possess
them on rentals varying from Rs.300 to Rs.1,000 per day
depending on the season or the ’takhat holders’ used to
carry on business at the said ’takhats’ through servants
while they themselves attended to their business elsewhere
end at certain places the ’takhat-holders’ whose names
appeared in the petitions were non-existent i.e. the orders
were in fictitious names.
The Committee considered it imperative to undertake a
strict scrutiny to ensure that the benefit of the scheme
percolated to the deserving and not to those who were merely
exploiting the fluid situation by obtaining court orders on
distorted and inaccurate facts. The Committee, therefore,
invited claims in the form of a statement on oath coupled
with original genuine documents in support of it. This was
done by public notices at the spot and through counsel in
case of pending cases. In
245
addition, local visits were made to verify presence of the
claimant at the site where he professed to carry on business
and if not found at such visits he was asked to substantiate
his claim by proof of challan, fine receipts or tehbazari
receipts in order to eliminate bogus and fictitious claims
Records of NDMC were also checked for cross verification
Out of the 460 claims registered with the Committee,458
related ro Resolution No.28 while the remaining two
concerned contempt proceedings. Out of the 458 claims, the
Committee scrutinised 440 claims out of which it upheld as
many as 114 claims for allotment of
stalls/kiosks/sites,etc., (area mentioned for each claimant)
and 110 claims for other reliefs referred to in Resolution
No. 28.
Seventeen claims in respect of Sarojini Nagar area
could not be verified by the Committee, as the claimants
contended that they were not in a position to meet the
minimum proof standard of producing at least one genuine
document in a time gap of one year as they were under the
patronage of a local politician, and hence they were never
disturbed by the police or any other authority and,
therefore, they were not in a position to offer proof of the
type insisted upon by the Committee. The non-cooperation by
the N.D.M.C. added to the problems of the Committee. The
Committee, therefore, sought the guidance of the Court to
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resolve this deadlock.
The pavement-hawkers, submitted that the strict
standard adopted by the Thareja Committee for recognising
the claim of a pavement-hawker overlooked the fact that most
of the pavement-hawkers were poor and illiterate persons who
could not be expected to have maintained proper records of
receipts, challans, etc. issued by the police or other local
authorities to support their claims;that the standard of
proof expected by the Thareja Committee was unrealistic and
it was essential to modify the same to do complete justice
to the concerned parties; that the deadline prescribed by
the Thareja Committee was strictly enforced, with the result
that many of the rightful claimants were denied the
opportunity of submitting their claims to the Thareja
Committee and having the same duly scrutinised and verified
by him; that several pavement-hawkers who were unaware of
the constitution of such a Committee and to whom a cause of
action for seeking redress through court had not arisen were
left out from consideration and as such pavement-hawkers
were likely to be denied their
246
rightful place in the scheme if the scheme was finalised
without their knowledge;that scores of writ petitions were
filed after the Constitution Bench rendered its decision and
most of the petitioners were not before the Thareja
Committee; and that if strict proof as provided by the
guidelines of Resolution No. 28 is not insisted upon in
respect of Sarojini Nagar area claimants, there was no
reason why it should not be relaxed in respect of the other
claimants whose claims were rejected.
NDMC point out that the situation in Sarojini Nagar was
completely different and incomparable with other areas in
view of the peculiarity of the prevailing circumstance.
MCD Cases
The MCD prepared a scheme for regulating
squatting/hawking business in Delhi and appointed a
Committee for the identification of squatting/non-squatting
areas in different zones. This Committee was expected to
take a final decision regarding the areas identified for
squatting/hawking. This was to be done in consultation with
the Commissioner of Police so that the needs of vehicular
traffic and other police/health problems could be taken care
of. The criteria for priority allotment here also
determined.
Under the scheme the squatters were expected to agree
to their being shifted from one zone to another but they
showed reluctance to move on to less lucrative zones. The
areas in the ten zones under MCD control were duly
identified on the plans and the total number of
squatters/hawkers to be accommodated in the areas were also
worked out. Objections were invited from the
squatters/hawkers but that barring a few others did not
react.
Disposing of the writ petitions filed under Article 32
of the Constitution and the appeals filed under Article 136
of the Constitution, in the light of the law settled by the
Constitution Bench in Sodan Singh’s case, [1989] 4 SCC 155
and disposing of the writ petitions filed after the
Constitution Bench rendered its decision, this Court,
HELD : 1.01. Every citizen has a right to the use of a
public street vested in the State as a beneficiary but this
right is subject to such reasonable restrictions as State
may choose to impose. [252E]
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1.02. Street-trading is albeit a fundamental right
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under Article 19(1)(g) of the Constitution but it is subject
to reasonable restrictions which the State may choose to
impose by virtue of clause (6) of Article 19 of the
constitution. The right to street-trading under Article
19(1)(g) of the Constitution does not, however, extend to a
citizen occupying or squatting on any specific place of his
choice on the pavement regardless of the rights of others,
including pedestrians, to make use of the pavements. In
other words, a citizen is permitted to hawk on the street
pavements by moving from one place to another without being
stationary on any part of the pavement vested in the State.
[252E-G]
2.01. Having regard to the fact that the Court dealing
with the question of livelihood and survival of a large
number of families, this court does not think it would not
be justified if it adopts a compassionate approach so as to
ensure that genuine squatters/hawkers are not denied their
daily bread at alter of technicalities while at the same
time ensuring that those who are out to exploit and abuse
the process of law do not succeed. [285C-D]
2.02. In order to ensure that genuine claims are not
defeated and in order to further ensure that the situation
in the five zones identified earlier does not remain in a
state of flux for all times to come,in regard to NDMC cases,
the following directions were made :
(1) Out of the 440 claimants, the one-member, Thareja
Committee will review the cases of those claimants, whose
claims have been rejected for non-compliance of the standard
of proof in the form of government or local authority
records, the genuineness whereof is unimpeachable, and the
Committee considers such proof presented to it to be
adequate for review. If on perusal such proof is found to
be unacceptable, the Committee may refuse to review its
decision.
(2) In regard to the Sarojini Nagar claims, the
Committee may evolve its own criteria or standard of proof
dehors the one laid down by Resolution No.28 and proceed to
dispose of the claims on the basis thereof. In doing so
fresh claims, if any,received may also be scrutinised;
(3) Public advertisements will be issued by the
Committee in local newspapers having wide circulation
inviting claims from squatters/hawkers
248
who have not preferred claims or filed proceedings in court
by a date to be stipulated therein, such claims must of
course be consistent with the eligibility criteria laid down
in Resolution No.28. In addition to such public
advertisement to be issued in newspapers of different
languages such as English, Hindi, Urdu, South-Indian
languages, etc., to be determined by the Committee, hand
bill and pamphlets shall also be printed and distributed and
pasted in different parts of the five zones selected for
squatting/hawking inviting claims by the stipulated date.
The advertisements/pamphlets, etc. will also cover the
claimants falling within direction (1) and (2) above;
(4) The Registry of this Court will not entertain any
further Writ Petitions/Special Leave Petitions from any
squatter or hawker concerning the sites chosen in the five
zones mentioned hereinabove but will instead direct the
petitioners to approach the Thareja committee if they have
moved such Writ Petitions/Special Leave Petitions before the
date stipulated by the Committee (which date will be
communicated to the Registry) and no Writ Petition/Special
Leave Petition or any other proceeding shall be entertained
by the Registry concerning the sites in the five zones after
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the stipulated date.
(5) The High Court of Delhi and all Courts subordinate
thereto will also follow the course of action set out in
direction No. 4 hereinabove.
(6) All Writ Petitions/Civil Appeals/Special Leave
Petitions and CMPs/IAs therein which concern the five zones
will stand disposed of by this order except one in which
orders have been made from time to time and the claimants of
all the matters disposed of pursuant to this direction will
be at liberty to seek further direction in the one matter
kept pending under this direction as interveners in case
such need arises in future. This is essential to regulate
such cases against NDMC.
(7) The interim stay will continue in respect of the
224 claimants whose claims have already been scrutinised by
the Committee. In respect of the other claimants out of
440, whose claims have been rejected, the status quo will be
maintained for two months after the stipulated date in
respect of those claimants who have sought review on or
before the stipulated date in respect of those claimants who
have sought review on or before the stipulated date. If
during the said period of two months the exercise for review
cannot be completed, the authorities desirous of taking any
action will approach the Committee and seek its approval.
If the
249
Committee is of the opinion that there is no prima facie
case for review it may permit such action to be taken 10
days thereafter so that the claimant likely to be affected
may in the meantime approach the Court and obtain
appropriate orders. In respect of all other cases, the
interim orders, if any, will continue, till the Committee
has scrutinised their cases and rejected them. Liberty is,
however, reserved to NDMC to move for vacating any order if
public interest so demands or it is found that the claimant
is in any way misusing it.
(8) The Thareja Committee will draw up a list of
squatters/hawkers identified by it as entitled to protection
so that their claims can be regulated in future also. In
drawing up the list care should be taken to ensure that one
and the same person dose not secure a double benefit.
(9) The Committee may also draw up a list of
squatters/hawkers on the basis of their actual standing for
being accommodated in future as and when there is a vacancy
in the available space in the five zones or when such space
is expanded or new space within the five zones is cleared
for squatting/hawking. The Committee will also suggest
sites within the zones, over and above those already
identified, can be made available to accommodate such
surplus squatters/hawkers who cannot be accommodated in the
five zones on account of paucity of space. [258E-261A]
2.03. The order that the squatters/hawkers may have one
more opportunity before any final decision is taken on the
scheme prepared by MCD, it is proper that a public
notice/advertisement should issue inviting objections from
the squatters/hawkers against the proposed scheme by a date
to be stipulated therein. Such public notice/advertisement
will be issued in daily newspapers of different languages
such as English, Hind, Urdu, South-Indian languages, etc.,
as well as by printing and distributing handbills and
pamphlets in the zones identified for squatting/hawking so
that every squatter/hawker has an opportunity to file his
objections. If any, to the proposed scheme. The
advertisement would also state that if no objection is
received on or before the stipulated date, the concerned
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squatter/hawker will not be heard in the matter. The
objections or suggestions received will be tabulated
250
and considered by the Committee and final decision will be
taken thereon expeditiously and the same will be placed
before this Court for approval of the scheme will or without
modification. [263H-264C]
2.05. The Committee appointed under the MCD Scheme may
process the objection already received. The claims of
squatters/hawkers who have already responded can be
scrutinised from the viewpoint of the eligibility criteria
laid down under scheme so that their priorities can be
determined.
[264D]
3.01. The claims of those who have petitioned this
Court and whose petitions are pending can also finalised to
save time. [264D]
3.02. Henceforth if any new petition is filed in regard
to MCD area, the Registry will direct copy of the petition
to be delivered to standing counsel of MCD and the matter
will be listed not earlier than 10 days before the service
of the copy unless otherwise directed by the Court. No such
mention will be made in court unless the registrar has been
intimated in advance who on such intimation will indicate if
there is such urgency that the matter cannot wait usual
listing time. [264E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Special Leave Petition
No. 15257 of 1987 etc. etc.
From the Judgment and Order dated 23.4.1987 of the
Delhi High Court in C.W.P No. 268 of 1987.
P.H. Parekh, Ms. Sunita Sharma, J.P. Pathak and
Bishwanatha Aggarwal for the Petitioners.
B. Sen, Govinda Mukhoty, R. K. Maheshwari, S.C. Sharma,
Sudhanshu Atre, Pradeep Aggarwal, S.K. Dubey, L.K. Gupta,
D.K. Garg, R.P Bhardwaj, Ms. A. Subhashini, A.P Singh, K.N.
Rai, M.M. Kashyap, Ms. Mridula Ray, Ms. Indra Sawhney, V.K.
Verma, Rishi Kesh, P. K. Manohar, A.S. Pundir, V.B. Saharya,
S.N. Bhatt, N. Ganpathy, Ms. Bina Gupta, Ms. Rani Jethmalani
and Ms. V.L. Menon for the Respondents.
The Judgment of the Court was delivered by
AHMADI, J> A large number of writ petitions were filed
in this Court by persons claiming a right to trade on the
pavements situate within
251
the areas under the control of the Municipal Corporation of
Delhi (MCD) and the New Delhi Municipal Committee (NDMC) in
different part of the city of Delhi. These writ petitions
filed under Article 32 of the Constitution and certain
appeals brought under Article 136 of the Delhi High Court
were referred to a Constitution Bench of this Court for
deciding on the grievance of the pavement-traders that the
Municipal Authorities were violating their fundamental
rights under Articles 14, 19(1)(g) and or 21 of the
Constitution by refusing to permit them to trade on streets
and footpaths in different localities of the city of Delhi.
The Constitution Bench by its judgement dated 30th August,
1989 in Sodan Singh & Others v. New Delhi Municipal
Committee & Others [1989] 4 SCC 155 came to the conclusion
that the right to carry on trade or business mentioned in
Article 19(1)(g) of the Constitution on street pavements, if
properly regulated, cannot be denied on the ground that the
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street pavements are meant exclusively for pedestrians and
cannot be put to any other use. Proper regulation is,
however, a necessary condition, for otherwise the very
object of laying roads would be defeated. While conceding
that all public streets and roads in the country vest in the
State, the Constitution Bench held that the State holds them
as trustee on behalf of the public and the members of the
public are entitled as beneficiaries to use them for trading
as a matter of right subject of course to similar rights
possessed by every other citizen including pedestrians. The
right of a pavement-hawker is, however, subject to
reasonable restrictions under clause (6) of Article 19 of
the Constitution the State as trustee is entitled to impose
all necessary limitations on the character and extent of
user by such pavement-hawkers. The Constitution Bench,
however, clarified that there cannot be a fundamental right
of a citizen to occupy a particular place on the pavement
where he can squat and engage in trading business. Nor can
the hawker assert a fundamental right to occupy permanently
specific places on any pavement. It recognised the right
under Article 19(1)(g) of the Constitution but negatived the
submission based on Article 21. It held that the right to
carry on any trade or business and the concept of life and
personal liberty enshrined under Article 21 have no
connection whatsoever and therefore, Article 21 has no
application. In paragraph 17 Sharma, J. speaking for the
majority observed as under :
"So far as right of a hawker to transact business
while going from place to place is concerned, it
has been admittedly recognised for a long period.
Of course, that also is subject to proper
252
regulation in the interest of general convenience
of the public including health and security
considerations. What about the right to squat on
the roadside for engaging in trading business? As
was stated by this Court in Bombay Hawkers’ Union
v. Bombay Municipal Corporation, [1985] 3 SCC 528
the public streets by their nomenclature and
definition are meant for the use of general public;
they are not laid to facilitate the carrying on of
private business. If hawkers were to be conceded
the right claimed by them, they could hold the
society to ransom by squatting on the busy
thoroughfares, thereby paralysing all civic life.
This is one side of the picture. On the other hand
if properly regulated according to the exigency of
the circumstances, the small traders on the
sidewalks could considerable add to the comfort and
convenience of general public by making available
ordinary articles of every day use for a
comparatively lesser price."
Kuldip Singh, J. who wrote a separate judgment
concurred with the view taken by the majority for reasons of
his own.
It is, therefore, settled law that every citizen has a
right to the use of a public street vested in the State as a
beneficiary but this right is subject to such reasonable
restrictions as the State may choose to impose.
Streettrading is albeit a fundamental right under Article
under Article 19(1)(g) of the Constitution but it is subject
to reasonable restrictions which the State may choose to
impose by virtue of clause (6) of Article 19 of the
Constitution. The right to street-trading under Article
19(1)(g) of the Constitution does not, however, extend to a
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citizen occupying or squatting on any specific place of his
choice on the pavement regardless of the rights of others,
including pedestrians, to make use of the pavements. In
other words the law laid down by the Constitution Bench
permits a citizen to hawk on the street pavements by moving
from one place to another without being stationary on any
part of the pavement vested in the State. After laying down
the law on the point in the context of Articles 14, 19 and
21 of the Constitution, the Constitution Bench remitted all
the petitions to a proper Division Bench of this Court for
final disposal.
After the petitions were referred to the Constitution
Bench for determining the challenge based on Article 14,
19(1)(g) and 21 of the
253
Constitution several other writ petitions came to filed in
this Court and interim orders were made thereon from time to
time. NDMC has prepared a scheme, vide Resolution No. 28
dated 10th November, 1989. Pursuant to the recommendation
made by the Lok-Adalat on 19th November, 1989, this court by
its order dated 21st December, 1989 appointed a Committee to
examine the claims made by the squatters in the light of the
said scheme and the decision in Sodan Singh and identify
street pavements in different areas where street hawking
could be regulated without being a hindrance to other users.
The salient features of the NDMC scheme may be set out at
this stage as under :
" A squatter upto 1977 shall be eligible for the
allotment of a stall/kiosk while the squatters
pertaining to the years 1978 till 1980 shall be
eligible for tehbazari site, if no shop/kisok is
available. The squatters squatting since between
1981 to 1987 shall be considered for allotment for
a tehbazari site subject to availability of vacant
space.
B.The eligibility of a squatter shall be determined
by document such as receipts issued by the NDMC,
Challans by Police and Toleration Permission etc.
C.Only non-licensable trades excluding sophisticated
luxury items, imported or smuggled goods shall be
permitted i.e. pan, biri, cigarettes, chana,
moongfali, hosiery items, toys, small stationery
items, lottery tickets, fresh vegetable, uncut
fruits, packed bakery items etc. will be allowed.
No cooking and sale of food items exposing dust
causing health hazards shall be allowed. Open
space measuring 6’ x 3’ for the trade of pan, biri,
cigarettes will be allowed.
D.Not more than one member of the family, as defined
by the NDMC, will be eligible for benefit under the
Scheme.
E.The following percentage shall be allowed for the
purpose of reservation in the allotment.
(a) General Category 60%
(b) Schedule Cast/Schedule Tribe 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%"
On several pavements large number of such traders were
carrying on business since quite sometime; many of them were
stationary, some had raised wooden ’takhats’ while others
were squatting on the pavements in front of shop and near
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public place. ’Tehbazari’ was being recovered from them by
the NDMC. The Committee was required to scrutinise the
claims of the pavement hawkers and at the same time look
into their grievances. This was a time consuming exercise.
Keeping that in view interim directions are issued on 23rd
February, 1990 to the following effect :
"We are of the view that until the scheme drawn up
pursuant to the directions of the Constitution
Bench is finalised, the petitioners in the several
writ petitions placed before us as a group today
should be permitted to hawk in the area where they
claim to be carrying on the operation without a
right to either sit down with or without their
merchandise to be sold on the pavements in front of
licensed shops or on the pavements as such but as
soon as the shops close down in the evening it
shall be open to them to settle down with their
goods and squat on the pavements and sell their
goods. On holidays and special festival occasions
as per the prevailing practice they shall be
entitled to squat throughout the day. This order
is totally interim in nature without prejudice to
the stance of both parties and shall not create any
right nor prejudice any right, if any."
After this interim order was made a direction was given by
the order of 23rd March, 1990 that pending receipt of the
report from the Committee hawking will be permitted subject
to the same being regulated in sensitive areas. During
preliminary scrutiny, however, it was found that ’takhats’
were given on hire by those who claimed to possess them on
rentals varying from Rs.300 to Rs.1,000 per day depending on
the season or the ’takhatholders’ used to carry on business
at the said ’takhats’ through servants
255
while they themselves attended to their business elsewhere
and at certain places the ’takhat-holders’ whose name
appeared in the petitions were non-existing i.e. the orders
were in fictitious names. That being the position the
Committee considered it imperative to undertake a strict
scrutiny to ensure that the benefit of the scheme percolated
to the deserving and not to those who were merely exploiting
and fluid situation by obtaining court orders on distorted
and inaccurate facts. The Committee, therefore, invited
claims in the form of statement on oath coupled with
original genuine documents in support of it. This was done
by public notices at the spot and through counsel in case of
pending cases. In addition local visits were made to verify
presence of the claimant at the site where he professed to
carry on business and if not found at such visits he was
asked to substantiate his claim by proof of challan, fine
receipts or tehbazari receipts. The underlying idea was to
eliminate bogus and fictitious claims. Records of NDMC were
also checked for cross verification.
A grievance was however, made that the procedure
adopted by the Committee for scrutinising the claims made by
the pavement-traders was too strict and resulted in
injustice even to genuine claimants. According to the
petitioners the strict standard adopted by the Thareja
Committee for recognising the claim of a pavement-hawker
overlooked the fact that most of the pavement-hawkers were
poor and illiterate persons who could not be expected to
have maintained proper records of receipts, challans, etc.,
issued by the police or other local authorities to support
their claims. Counsel for the pavement-hawkers, therefore,
submitted that the standard of proof expected by the Thareja
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Committee was unrealistic and it was essential to modify the
same to do complete justice to the concerned parties. It
was also submitted that the deadline prescribed by the
Thareja Committee was strictly enforced with the result that
many of the rightful claimants were denied the opportunity
of submitting their claims to the Thareja Committee and
having the same duly scrutinised and verified by him. Apart
from those whose claims were rejected on the insistence of
the strict standard of proof prescribed by the Thareja
Committee, counsel submitted that several pavement- hawkers
who were unaware of the constitution of such a Committee and
to whom a cause of action for seeking redress through court
had not arisen were left out from consideration and as such
such pavement-hawkers are likely to be denied their rightful
place in the scheme if the scheme is finalised without their
knowledge. Scores of writ petitions have been filed after
the Constitution Bench rendered its
256
decision and most of these were not before the Thareja
Committee.
Now it must be realised that under Resolution No. 28
itself the Committee was expected to scrutinise the claims
on the basis of the receipts of removal charges, police
challans, toleration slips, tehbazari receipts, etc. All
the same time it is essential to bear in mind that such
minimum proof as would enable the Committee to weed out
bogus claims from genuine ones had to be insisted upon to
maintain credibility in regard to the scrutiny. As stated
earlier preliminary enquiry had revealed large scale
manipulation and fabrication of documents by bogus and
unscrupulous claimants who desired to make a windfall by
abusing the process. It was, therefore, essential to lay
down the minimum proof which the Committee would expect for
accepting any claim put forth before it. It cannot,
therefore, be said that the minimum proof expected by the
Committee in the form of atleast one genuine receipt, police
challans, toleration slip, tehbazari receipt, etc., during a
gap of one year or so was unrealistic. An exception was
made by the Committee in the case of a claimant who produced
a large number of such documents for a regular period even
though the same was not available in a given year where
satisfactory explanation was offered. This was absolutely
necessary as large scale irregularities had surfaced during
the preliminary survey undertaken by the Committee. In the
circumstances we are not inclined to think that the standard
of proof required by the Committee was unduly harsh or
unrealistic.
Of the 460 claims registered with the Committee, 458
related to Resolution No. 28 while the remaining two
concerned contempt proceedings. Out of the 458 claims the
Committee scrutinised 440 claims out of which it upheld as
many as 114 claims for allotment of stalls/kiosks/sites,
etc., (area mentioned for each claimant) and 110 claims for
other reliefs referred to in Resolution No. 28. Seventeen
claims in respect of Sarojini Nagar area could not be
verified as the claimants contended that they were not in a
position to meet the minimum proof standard of producing
atleast one genuine document in a time gap of one year as
they were under the patronage of one Arjan Dass, a local
politician, and hence they were never disturbed by the
police or any other authority and, therefore, they were not
in a position to offer proof of the type insisted upon by
the Committee. The non-cooperation by the N.D.M.C. added to
the problems of the Committee. The Committee has, therefore,
sought the guidance of the
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Court to resolve this deadlock. In view of the peculiar
circumstances mentioned by the 17 claimants, the Committee
need not feel inhibited by the nature of proof laid down in
Resolution No. 28. We would, therefore, direct the
Committee to examine the claims of these 17 claimants
closely in the light of any other evidence that they may
choose to tender and on being satisfied about the
genuineness and dependability of the proof so tendered by
the claimants, the Committee may dispose of their claims.
Under Annexure A squatting is permitted in the entire
area except Connaught Place/Circus area because of its
special characteristics although Tehbazari permission
already granted in respect of that area has to continue.
Squatters were agreed to be continued in other areas subject
to availability of space. Even in Connaught Circus area
NDMC agreed to accommodate squatters provided their presence
there did not interferewith the smooth movement of
pedestrians. No. squatting could be permitted in zones 2, 3
and 4 because of security considerations but shops and
kiosks already in existence were to continue. So far as
zone 5 is concerned squatting was agreed to be permitted
leaving a margin of 30 Meters on either side of public
utility institutions, e.g. hospitals etc. Kiosks, stalls
etc. situate in the said areas were to continue. In
addition 228 open tehbazari permission were agreed upon.
Further 106 squatters were to be accommodated on
compassionate grounds. In addition squatters rehabilitated
in zone 1 and existing milk-booths were to be continued. In
this manner the needs of those in NDMC area have been
adequately attended to. Yet there exist a large number of
squatters in different parts of NDMC area, some of whom have
the protection of stay orders secured from courts, and their
cases were to be worked out on the basis of the eligibility
criteria to be formulated by a Sub-Committee of NDMC.
The grievance made by counsel for squatters/hawkers has
been twofold. In the first place they complain against the
strict standard of proof insisted upon by Mr. Thareja in
support of the claim and secondly against the area
identified for carrying on business by these squatters and
hawkers being considerably restricted. It is pointed out
that on account of the strict standard of proof expected by
the Thareja Committee, out of 440 claims examined by that
body only 224 claims (114 for kiosks/sites, etc + 110 for
other reliefs) have been cleared and the rest have been
rejected. But as pointed out earlier the standard and
nature of proof was determined under
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Resolution No. 28 and the Thareja Committee had merely gone
by it. This difficulty, however, manifested itself when it
came to scrutinising the 17 claims concerning the Sarojini
Nagar area. Some directions in this behalf have to be
given. It was contended that if strict proof as provided by
the guidelines of Resolution No. 28 is not insisted upon in
respect of Sarojini Nagar area claimants, there is no reason
why it should not be relaxed in respect of the other
claimants whose claims have been rejected. Counsel for
NDMC, however, pointed out that the ground situation in
Sarojini Nagar is completely different land incomparable
with other areas in view of the peculiarity of the
circumstance relied on.
We have given our anxious consideration to the rival
point of view and having regard to the fact that we are
dealing with the question of livelihood and survival of
large number of families, we do not think we would not be
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justified if we adopt a compassionate approach so as to
ensure that genuine squatters/hawkers are not denied their
daily bread at the alter of technicalities while at the same
time ensuring that those who are out to exploit and abuse
the process of law do not succeed. We must also realise
that a large number of squatters/hawkers have since filed
proceedings which await scrutiny. In order to ensure that
genuine claims are not defeated and in order to further
ensure that the situation in the five zones identified
earlier does not remain in a state of flux for all times to
come, we deem it necessary to give appropriate directions,
here and now, in regard to NDMC cases. We accordingly
direct:
(1)Out of the 440 claimants, the one-member Thareja
Committee will review the cases of those claimants
whose claims have been rejected for non-compliance
of the standard of proof laid down by Resolution
No. 28, if the claimant adduces any other authentic
proof in the form of government or local authority
records, the genuineness whereof is unimpeachable,
and the Committee considers such proof presented to
it to be adequate for review. If on perusal such
proof is found to be unacceptable, the Committee
may refuse to review its decision;
(2)In regard to the Sarojini Nagar claims, the
Committee may evolve its own criteria or standard
of proof dehors the one laid down by Resolution No.
28 and proceed to dispose of
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the claims on the basis thereof. In doing so fresh
claims, if any, received may also be scrutinised;
(3)Public advertisements will be issued by the
Committee in local newspapers having wide
circulation inviting claims from squatters/hawkers
who have not preferred claims or filed proceedings
in court by a date to be stipulated therein, such
claims must ofcourse be consistent with the
eligibility criteria laid down in Resolution No.28.
In addition to such public advertisement to be
issued in newspapers of different languages such as
English, Hind, Urdu, South-Indian languages, etc.,
to be determined by the Committee, handbills and
pamphlets shall also be printed and distributed and
pasted in different parts of the five zones
selected for squatting/hawking inviting claims by
the stipulated date. The advertisements/pamphlets,
etc. will also cover claimants falling within
direction (1) and (2) above;
(4)The Registry of this Court will not entertain any
further Writ Petitions/Special Leave Petitions from
any squatter or hawker concerning the sites chosen
in the five zones mentioned hereinabove but will
instead direct the petitioners to approach the
Thareja Committee if they have moved such Writ
Petitions/Special Leave Petitions before the date
stipulated by the Committee (which date will be
communicated to the Registry) and no Writ
Petition/Special Leave Petition or any other
proceeding shall be entertained by the Registry
concerning the sites in the five zones after the
stipulated date:
(5)The High Court of Delhi and all Courts subordinate
thereto will also follow the course of action set
out in direction No. 4 hereinabove;
(6)All Writ Petitions/Civil Appeals/ Special Leave
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Petitions and CMPs/IAs there in which concern the
five zones will stand disposed of by this order
except one in which orders have been made from time
to time and the claimant of all the matters
disposed of pursuant to this direction will be at
liberty to seek further directions in the one
matter kept
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pending under this direction as interveners in case
such need arised in future. This is essential to
regulate such cases against NDMC;
(7)The interim stay orders will continue in respect of
the 224 claimants whose claims have already been
scurtinised by the Committee. In respect of the
other claimants out of 440 whose claim have been
rejected the status quo will be maintained for two
months after the stipulated date in respect of
those claimants who have sought review on or before
the stipulated date. If during the said period of
two months the exercise for review cannot be
completed, the authorities desirous of taking any
action will approach the Committee and seek its
approval. If the Committee is of the opinion that
there is no Prima facie case for review it may
permit such action to be taken 10 days thereafter
so that the claimant likely to be affected may in
the meantime approach the Court and obtain
appropriate orders. In respect of all other cases
the interim orders, if any, will continue till the
Committee has scrutinised their cases and rejected
them. Liberty is, however, reserved to NDMC to
move for vacating any order if public interest so
demands or it is found that the claimant is in any
way misusing it;
(8)The Thareja Committee will draw up a list of
squatters/hawkers identified by it as entitled to
protection so that their claims can be regulated in
future also. In drawing up the list care should be
taken to ensure that one and the same person does
not secure a double benefit; and
(9)The committee may also draw up a list of
squatters/hawkers on the basis of their actual
standing for being accommodated in future as and
when there is a vacancy in the available space in
the five zones or when such space is expanded or
new space within the five zones is cleared for
squatting/hawking. The Committee will also suggest
sites within the zones, over and above those
already identified, which can be made available to
accommodate such surplus squatters/hawkers who
cannot be accommodated in the
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five zones on account of paucity of space.
All the NDMC cases falling under the zones created
under Resolution No.28 will stand disposed of accordingly by
this order with no order as to costs. The advertisement
cost will be borne by NDMC.
We now move on to consider the cases of
squatters/hawkers carrying on their business activity in the
territory within the administrative control of the MCD. The
MCD has, within its jurisdiction, the entire Union Territory
of Delhi minus the area within the administrative control of
NDMC and Delhi Cantt. The area falling under the
administrative control of MCD has a large belt of
agricultural lands and, therefore, any scheme to be prepared
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in regard to facilitating trade by squatters/hawkers must be
confined to the urban areas only. It appears that after the
partition of the country there was large influx of
population to Delhi and the local authority was constrained
to evolve certain norms to rehabilitate such people.
Squatting was, therefore, permitted on tehbazari system.
Keeping this in view the MCD has now evolved a scheme of
open tehbazari consisting of grant of permission to squat
on a earmarked spot of the area of 6’ x 4’ for the purpose
of carrying on business. On gazetted holidays, festival
days and Sunday, permission to squat is granted in various
areas under what is known as casual tehbazari. Weekly
bazars are organised in certain specified areas once in a
week when the regular shops are closed. 67 such weekly
bazars are held in different parts of the city of Delhi.
Survey has been carried out by the MCD officials from time
to time to identify the person actually squatting in
different areas on municipal lands. The last such survey
was conducted on December 23, 1982. In preparing the scheme,
the MCD has determined the categories of persons to be
considered for grant of permission to squat, subject
ofcourse to availability of space. The criteria evolved by
the MCD is stated as under :
"(a) Persons who were found squatting continuously
in the survey carried out be the Corporation as on
23.12.82 and who have proof of continuous squatting
in a particular place which may be in the form of
Police challans when the goods were removed or
challans were issued by the Health Department or
receipts of payment of Composition Fee to the
Corporation and also supported duly by proof of
their actual residence in the Union Territory of
Delhi, their
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nationality in the form of Ration Card and entry in
the Voters’list.
(b) Persons who have only proof of squatting on
holidays, festival days, etc. and have no other
proof of squatting on any other occasion, and
(c) Persons who have no proof squatting at all
prior to 1982 but have since then registered their
claim of squatting in a particular place in the
Writ Petitions filed in the Supreme Court and an
order of stay has been granted in their favour on
the basis of their having adduced proof of
squatting anterior to the filing of the Writ
Petition."
For this purpose the city is divided into ten zones,
namely, (i) City Zone, (ii) Karol Bagh Zone, (iii) New Delhi
Zone, (iv) South Zone, (v) Nerala Zone, (vi)Shahdara Zone,
(vii) Sadar Paharganj Zone, (viii) West Zone, (ix) Civil
Lines Zone, and (x) Najafgarh Zone. In all 288 squatting
areas have been identified in the zones covering 12369 -6’ x
4’ spots for rehabilitation of squatters. Of these zones
some zone like City Zone etc.,comprise of extremely busy
shopping centres with narrow roads like Chandni Chowk, Khari
Baoli, etc. which on account of severe congestion do not
permit even smooth movement of vehicular and pedestrian
traffic making it impossible to allocate space for
squatting/hawking purposes. Similar problems with varying
degrees have to be countenanced in certain other areas as
well which cannot accommodate the squatters/hawkers from
other zones are not willing to shift making it difficult for
the MCD to relieve the congestion found in certain zones
where squatters/hawkers are found in large numbers, far more
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than can be accommodated. Keeping these factors in mind and
the directions of the court issued from time to time to MCD
prepared a scheme for regulating squatting/hawking business
in Delhi and appointed a committee for the identification of
squatting/nonsquatting area in different zones. This
Committee was expected to take a final decision regarding
the areas identified for squatting/hawking. This was to be
done in consultation with the Commissioner of Police so that
the needs of vehicular traffic and other police/health
problems could be taken care of. The criteria for priority
allotment has also been determined as under :
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(1)Persons who have been found squatting between 1970
and 1982 and whose names are contained in the
survey report prepared after the survey conducted
in 1982 will receive first priority for grant of
tehbazari permission subject to the scrutiny of
their claims;
(2)Insofar as casual tehbazari on weekly holidays,
festivals/melas, etc. is concerned, as well as at
the 67 weekly bazars held, persons availing of the
said benefit will continue to be granted the casual
or weekly tehbazari;
(3)Squatters who have started squatting/hawking in
1983 onwards and who are found on the date of
survey would also be considered for grant of open
tehbazari of 6’ x 4’ subject to the production of
proof of continuous squatting and proof of
residence and nationality. Such squatters/hawkers
would be granted open tehbazari subject to
availability of space provided they have cleared
the dues of the MCD; and
(4)Persons who do not fall within the aforesaid three
categories would be permitted to apply for hawking
lincenced under section 420 of the Delhi Municipal
Corporation Act, 1957 and their applications would
be considered on merit for permission to hawk - not
squat - by moving in specified areas with their
goods on their heads or on cycles. They will be
entitled to hawk with their goods anywhere in the
zone in respect of which they have been granted a
licence. However, such permission will be subject
to any restrictions that may be imposed by the
residential associations of different colonies.
Under the scheme the squatters were expected to agree
to their being shifted from one zone to another but as
stated earlier they have shown reluctance to move on the
less lucrative zones. The areas in the ten zones have been
duly identified on the plans and the total number of
squatters/hawkers to be accommodated in the said areas have
also been worked out. Objections were invited from the
squatters/hawkers but it appears that barring a few others
have not reacted. In order that the squatters/hawkers may
have one more opportunity before any final decision is taken
on the scheme prepared by MCD we think it is proper that a
public
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notice/advertisement should issue inviting objections from
the squatters/hawkers against the proposed scheme by a date
to be stipulated therein. Such public notice/advertisement
will be issued in daily newspapers of different languages
such as English, Hindi, Urdu, South-Indian-languages, etc.,
as well as by printing and distributing handbills and
pamphlets in the zones identified for squatting/hawking so
that every squatter/hawker has an opportunity to file his
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objections, if any, to the proposed scheme. The
advertisement would also state that if no objection is
received on or before the stipulated date, the concerned
squatter/hawker will not be heard in the matter. The
objections or suggestions received will be tabulated and
considered by the Committee and a final decision will be
taken thereon expeditiously and the same will be placed
before this Court for approval of the scheme with or without
modification.
However, in the meantime, the Committee appointed under
the MCD Scheme may process the objections already received.
The claims of squatters/hawkers who have already responded
can be scrutinised from the viewpoint of the eligibility
criteria laid down under the scheme so that their priorities
can be determined. So also the claims of those who have
petitioned this Court and whose petitions are pending can
also be finalised to save time. Henceforth if any new
petitions is filed in regard to MCD area, the Registry of
this Court will direct copy of the petition to be delivered
to standing counsel of MCD and the matter will be listed not
earlier than 10 days before the service of the copy unless
otherwise directed by the Court. No such mention will be
made in Court unless the Registrar has been intimated in
advance who on such intimation will indicate if there is
such urgency that the matter cannot wait usual listing time.
The above order will guide all concerned including the
Registry of this Court so far as cases of squatters/hawkers
are concerned.
V.V.R Petitions disposed of.
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