Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Judgment Reserved on: 19 May, 2017
rd
Judgment Pronounced on: 3 July, 2017
+ W.P. (C) 2556/2015
VYAPARI KALYAN MANDAL MAIN PUSHPA & ANR
..... Petitioners
Through Mr.Pranav Proothi, Adv. with
Ms.Prerna Arora, Mr.Vishal Dabas &
Ms.Manasi Chatpalliwar, Advs. along
with Mr.Shyam Sunder Sharma &
Mr.B.L. Grover, Chairman of Market
Association, in person.
versus
SOUTH DELHI MUNICIPAL CORPORATION & ORS
..... Respondents
Through Mr.Pushkar, Adv. for Mr.Gaurang
Kanth, Adv. for SDMC.
Mr.Devesh Singh, ASC with
Mr.Vinod Kumar Bhati, Adv. for R-3
to 7.
Ms.Indira Unninayar with Mr.Narayan
Krishan, Adv. with Ms.Rasna Kalkat,
Adv. for R-8.
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MR. JUSTICE VINOD GOEL
G.S.SISTANI, J.
C.M. 5125/2017
1. This is an application on behalf of the respondent no.8/NASVI for
placing on record additional documents. Prima facie we are of the
view that the application is merely an attempt to further prolong the
W.P. (C) 2556/2015 Page 1 of 50
litigation after the judgment was reserved on 01.02.2017, but since we
have considered the documents sought to be placed on record, the
application is allowed.
2. The application is disposed of.
W.P. (C) 2556/2015
3. The present writ petition has been filed by Vyapari Kalyan Mandal
Main Pushpa (Central) Market Lajpat Nagar under Article 226 of the
Constitution of India for issuance of a writ of mandamus directing the
respondents to restrain/remove squatters, vendors and hawkers
vending in a „No Squatting Zone‟ at Central/Pushpa Market, Lajpat
Nagar, New Delhi. The petitioner no.1 association comprises of
shopkeepers carrying on trade and business in the said market, while
the petitioner no.2 is a member of the association carrying on his
business from shop no. 90.
SUBMISSIONS OF THE PETITIONERS
4. The facts of the case as stated in this writ petition are that on
21.05.1996 a massive bomb blast took place in the area of Pushpa
Market, Lajpat Nagar-II, in which 13 people died, several persons
were injured and there was a loss of several crores of goods. A high-
level enquiry was ordered by the then Lieutenant Governor of Delhi.
The report was submitted to the Lieutenant Governor, as per which the
casualties and loss of property was due to delay in reaching the site by
emergency services on account of encroachments by
squatters/hawkers in the lanes and by-lanes of Central/Pushpa Market.
It was recommended that no squatting/hawking should be permitted in
future in the said area.
W.P. (C) 2556/2015 Page 2 of 50
5. On the basis of the enquiry report, the Lieutenant Governor by his
order dated 13.11.1996 directed the authorities to clear all the roads,
lanes and by-lanes in Central/Pushpa Market, Lajpat Nagar of all
encroachments in a joint operation to be conducted by the MCD and
the police. The Lieutenant Governor also declared the entire
Central/Pushpa Market as a „No Squatting Zone‟.
6. In Gainda Ram and others v. Municipal Corporation of Delhi and
others , W.P. (C) No.1699/1987 pending before the Supreme Court,
I.A. Nos.340-348 were filed by those who were carrying on tehbazari
facing Blocks D & J, Lajpat Nagar-II who had been removed after the
bomb blast. By order dated 04.08.2000 in the said I.As., the Supreme
Court directed the Government of NCT of Delhi to look into the
matter and inform the Court whether Blocks D & J could be declared
as squatting areas in view of the fact that certain other areas close to
the place where bomb blast has taken place are being used for
squatting purposes.
7. In response to the order, an affidavit was filed by Dr. B.S. Banerjee,
Additional Secretary, Department of Urban Development,
Government of India inter alia stating that:
“ 5. That the action of the MCD in permitting tehbazari in
sites closer to the bomb blast site even while excluding
Blocks “D and J” is not sustainable and the Lieutenant
Governor is of the view that it would be appropriate to
permit tehbazari only on sites or squatting zones properly
selected in accordance with the directions of the Hon‟ble
Supreme Court in its order dated 1.5.1997 in I.A. Nos.37, IA
No.97 in W.P. (C) No.1699 of 1987 with I.As. Nos.193, 37,
194 to 200, Contempt Petition (C) No.231 of 1997 and SLP
(C) No.12618 of 1992 in CWP No.1699 of 1997 in the
W.P. (C) 2556/2015 Page 3 of 50
matter of Gainda Ram and others Vs. MCD and others and
not permitting this in any non-squatting zones. ”
(Emphasis Supplied)
8. On 01.12.2000 in I.A. Nos. 336, 340-348 in W.P. (C) No.1699 of
1987, the Supreme Court taking into consideration the aforegoing
affidavit passed the following order:
“ If it is the policy decision of the Government of NCT of
Delhi to maintain the earlier prohibitory orders dated
13.11.1996 of the Lt. Governor to clear all roads, lanes and
bye-lanes of all encroachments in that area and now a
further decision has also been taken that the MCD ought
not to have permitted tehbazari in some pockets closer to
the Bomb Blast Site. Then there is no question of excluding
Blocks “D and J” from the purview of prohibition
contained in the earlier orders of the Lt. Governor. Not will
Blocks “D and J” be treated as non-squatting area but the
areas which are shown in the same plan closer to the Bomb
Blast site. Where MCD has permitted tehbazari will now be
treated as non-squatting area and all those who are
occupying those areas will be removed from that area and
provided tehbazari site for squatting in accordance with
their seniority elsewhere. … ”
(Emphasis Supplied)
9. The aforesaid stand was reiterated by the MCD in its affidavit, dated
27.02.2001 filed before the Supreme Court by Sh. O.P. Balwani,
Assistant Commissioner, Municipal Corporation, Delhi inter alia
stating:
“ [C] In the area of Pushpa Market a massive Bomb Blast
had taken place on 21st May, 1996 in which 13 people had
died and a high level Enquiry was ordered by the
Lieutenant Governor and in the said Enquiry report it was
recommended that no squatters should be permitted in the
said area. On 1st December, 2000 also while passing
orders this Hon‟ble Court had considered the response of
Lt. Governor‟s office and according this Hon‟ble Court had
W.P. (C) 2556/2015 Page 4 of 50
declared that no squatting will be allowed in the area of
Pushpa Market. Even otherwise, Municipal Corporation of
Delhi had already declared Pushpa Market as a non-
squatting area and as such applicants under no
circumstances can be allowed to squat in the said area. As
per order dated 1st December, 2000 passed by this Hon‟ble
Court in Contempt Petition No.288-289/2000 squatting in a
non-squatting area has been prohibited. … ”
(Emphasis Supplied)
10. On 25.08.2005 in I.A. No.394 in I.A. No.356 in W.P. (C) 1699/1987
in the order passed by the Supreme Court as regards demarcation of
hawking and non-hawking zones it was recorded that:
“ …We are also informed that under the schemes formulated
by the MCD and NDMC hawking and non-hawking zones
have been demarcated and the hawkers/squatters will be
located only in those zones which have been demarcated by
the NDMC and MCD as hawking zones in accordance with
the priorities mentioned in the Scheme… ”
11. The Assistant Commissioner, Central Zone, MCD by its letter dated
30.12.2005 rejected the choice for squatting sites at Pushpa/Central
Market by the applicants in I.A. No.394 before the Supreme Court
informing that:
“ Following the above observation of the Hon‟ble Court the
choice submitted by you along with the photographs of the
proposed sites were sincerely examined by this office and
found that the same falls in the “Non-squatting Zone”
declared under the guidelines of Hon‟ble Supreme Court of
India in W.P. (C) No.1699/87 in the matter of “Gainda Ram
Vs MCD. ”
(Emphasis Supplied)
12. On 06.02.2007, the Supreme Court in I.A. No.394 in I.A. No.356 in
W.P. (C) No.1699/1997 while considering the scheme submitted by
the MCD passed the following order:
W.P. (C) 2556/2015 Page 5 of 50
“ The Scheme shall also provide that no license shall be
granted to any person in no-hawking/squatting zones. The
Station House Officer of the concerned police station shall
take immediate steps to remove any person found
hawking/squatting in a non-hawking/squatting area. If an
allottee who has been allotted a tehbazari/vending site in a
hawking/squatting zone, is found carrying on such activity
in a non-hawking/squatting zone, the Municipal
Corporation may consider cancelling his allotment. ”
(Emphasis Supplied)
13. It is submitted by learned counsel for petitioners that the Supreme
Court in the case of Maharashtra Ekta Hawkers Union and another
v . Municipal Corporation, Greater Mumbai and others , (2014) 1
SCC 490 (paragraphs 8 and 20) has again upheld the demarcation
between vending and no-vending zones.
14. The learned counsel for the petitioners, thus, submits that the
Pushpa/Central Market is a no-squatting/no-vending zone, but the
authorities have failed to maintain it as such. The primary grievance
of the petitioners is that even though sporadic removal actions are
taken, the vendors return almost immediately and again start squatting
with the active connivance of the officers of the MCD and the police.
This led to the petitioners making a representation to the respondents,
but of no avail, the petitioners have filed the present writ petition.
STAND OF SDMC
15. An affidavit in the form of a status report was filed by the SDMC. As
per the status report, Pushpa Market/Central Market is a no-squatting
zone and in the said area no one can be allowed to squat/hawk. It is
submitted that the safety of the general public is of paramount
W.P. (C) 2556/2015 Page 6 of 50
importance and if the area is not kept as a no-vending zone, the same
would severely undermine public safety.
16. Learned counsel next contended that the concept of no-vending zone
is not alien to the Act, but that its implementation is being deferred.
National interest would prevail over private interest and the streets of
Pushpa Market have to be kept free from encroachment on road and
footpath to safeguard the lives of each citizen.
17. Based on the record, it has been deposed that the SDMC is
taking/carrying out encroachment removal programme in respect of
the temporary encroachments in the entire area falling within the
jurisdiction of Central Zone by fixing monthly encroachment removal
programmes. It is also mentioned that immediately upon taking
encroachment removal action a letter was sent to the concerned SHO
for keeping watch and to ensure that no re-encroachment takes place.
In paragraph 8 of the status report details of number of
removal/encroachment removal actions have been provided for the
years 2011-15, which reads as under:
“ 8. That as per record, details of number of
removal/encroachment removal action, as carried out by
the General Branch Central Zone, SDMC in respect of
Central/Pushpa Market Lajpat Nagar in the year 2011-12,
2012-13, 2013-14, 2014-15 and 01.04.2015 to till date are
given herein below:
S.No. Period No. of actions No. of items
seized
01. 2011-12 38 433
02. 2012-13 30 351
03. 2013-14 35 477
04. 2014-15 28 259
05. 01.04.2015 to
26 438 ”
till date
W.P. (C) 2556/2015 Page 7 of 50
18. In support of their plea that Pushpa Market/Central Market is a no
squatting zone, the SDMC has placed on record copy of an order dated
01.12.2000 passed by the Supreme Court of India in I.A. No. 336 in
W.P. (C) 1699/1987, which reads as under:
“I.A. Nos. 336, 284, 340-348 in W.P. (C) No. 1699/1987
and Cont. Pet. (C) No. 398/98 in IAs 245-246 in WP (C)
1699/1987.
On 4th of August, 2000 this Court directed the Govt.
Of NCT of Delhi to look into the question whether it is still
necessary to prohibit tehbazarai in blocks „D‟ & „J‟ near
the bomb blast site, shown in the plan filed alongwith I.A.
Nos. 340-348 etc. Unfortunately, no decision was taken
after 4th August, 2000, therefore we passed a further order
on 28.11.2000 that the Govt. of NCT of Delhi should look
into the matter and inform the Court whether blocks „D‟ &
„J‟ could be declared as squatting areas in view of the fact
that certain other areas close to the place where bomb blast
has taken place are being used for squatting purposes.
An affidavit has now been filed by Dr. B.S. Banerjee,
working as Additional Secretary in the Department of
Urban Development, Govt. of NCT of Delhi wherein after
referring to the earlier decision of the Lt. Governor of Delhi
dated 13.11.1996 it is stated in paragraph 5 as follows: -
5. That the action of the MCD in permitting tehbazari
in sites closer to the bomb blast site even while
excluding Blocks „D‟ and „J‟ is not sustainable and
the Lieutenant Governor is of the view that it would
be appropriate to permit tehbazari only on sites or
squatting zones properly selected in accordance with
the directions of the Hon‟ble Supreme Court in its
order dated 1.5.1997 in IA Nos. 37, IA Nos. 97 in
W.P. (C) No. 1699 of 1987 with I.As. Nos. 193, 37,
194 to 20, Contempt Petition (C) 231 of 1997 and
SLP (C) No. 12618 of 1992 in CWP No. 1699 of 1987
in the matter of Gainda Ram and Others Vs. MCD
W.P. (C) 2556/2015 Page 8 of 50
and others and not permitted this in any non-
squatting zones.”
If it is the policy decision of the Govt. of NCT of
Delhi to maintain the earlier prohibitory orders dated
13.11.1996 of the Lt. Governor to clear all roads, lanes and
bye-lanes of all encroachments in that area and now a
further decision has also been taken that the MCD ought
not to have permitted tehbazari in some pockets closer to
the bomb blast site, then there is no question of excluding
Blocks „D‟ and „J‟ from the purview of prohibition
contained in the earlier orders of the Lt. Governor. Not
only will blocks „D‟ and „J‟ be treated as non-squatting
areas but the areas which are shown in the same plan close
to the bomb blast site, where MCD has permitted tehbazari
will now be treated as non-squatting areas and all those
who are occupying those areas will be removed from that
area and proved tehbazari site for squatting in accordance
with their seniority elsewhere. Before the aforesaid persons
who are in occupation of the other areas near the bomb
blast site are asked to vacate, the MCD is directed to give
reasonable time to vacate. The reasonable time shall be a
period of 3 months from today. No objection will be
entertained from those persons for squatting in view of the
earlier order passed by the Lt. Governor and the policy of
the Govt. of NCT of Delhi which has been reiterated and
now accepted by this Court. It is expected that the MCD
will be able to allocate other particular places for these
persons in squatting areas as per seniority i.e. non-
prohibited areas, within the aforesaid period of 3 months.
The applicants also will be allowed to continue for
three months till alternative temporary or final allotment is
made. While asking these eligible squatters (illegible) from
the prohibited areas near the bomb blast site, the eviction
will start with the junior most.
All these I.As. stand disposed of.
W.P. (C) 2556/2015 Page 9 of 50
Contempt petition (C) No. 308/1998 in I.As. 345-346
is also disposed of. ”
(Emphasis Supplied)
19. In paragraph 11 of the status report, it was revealed that encroachment
removal drives have been undertaken even on 28.10.2015, 2.11.2015
and 3.11.2015, i.e. during the pendency of the present writ petition.
The paragraph reads as under:
“ 11. As mentioned above regarding the encroachment
removal actions/removal actions as taken/carried out by the
General Branch, Central Zone, SDMC, it is pointed out that
recently the Department has carried out/taken the necessary
encroachment removal/removal actions on 28.10.2015,
02.11.2015 and 03.11.2015. The details of the said recently
removal actions is as here under
Sr.No. Date of Action Action taken
01. 28.10.2015 On the availability of police
force, action was taken in the
area of Central Market/Pushpa
Market Lajpat Nagar and
confiscated items were stored in
Mpl. Store. List of the same are
annexed herewith as Annexure
R-1/D (coly).
02. 02.11.2015 As above.
03. 03.11.2015 As above.
The said actions have also been video-graphed hence copy
of the CD and photographs are annexed as Annexure R-
1/E (Coly). ”
STAND OF DELHI POLICE
20. Learned counsel for respondent nos.3 to 7 submitted that as and when
force is asked for by the SDMC, the same is provided and the area is
cleared. In 2016, SDMC conducted special drives 51 times for the
removal of encroachment from Pushpa Market and sufficient police
W.P. (C) 2556/2015 Page 10 of 50
assistance was provided for the same. A status report dated
13.02.2017 has also been filed wherein it is mentioned that between
01.01.2011 to 31.12.2016, the local police took legal action against
273 hawkers and squatter who re-encroached upon the land. During
the same period, the police seized articles of total 4256 persons vide
1114 seizure memos.
21. Accordingly, both the petitioner and the respondent SDMC are ad
idem that the area in question is a no-vending zone. During the
pendency of the writ petition, CM 2628/2015 was filed by New
Association of Street Vendors of India (hereinafter referred to as
„ NASVI ‟). Without admitting any of the averments made in the
application, the petitioners did not oppose the impleadment, even
though a detailed reply to the application for impleadment was filed.
Accordingly, by an order dated 21.04.2016, NASVI was impleaded as
respondent no. 8 in the writ petition.
SUBMISSIONS OF RESPONDENT NO.8/NASVI
22. Ms.Unninayar, learned counsel for the respondent no.8, has submitted
that the legal position has changed and Pushpa Market is no longer a
no-vending zone. The submissions of the learned counsel are as
under:
22.1. She submitted that the orders/laws may be viewed in three broad time
periods since 2007:
(i) Pre- Maharashtra Ekta Hawkers Union (Supra) dated
09.09.2013;
(ii) Post- Maharashtra Ekta Hawkers Union (Supra) ; and
W.P. (C) 2556/2015 Page 11 of 50
(iii) After the coming into force the Street Vendors (Protection of
Livelihood and Regulation of Street Vending) Act, 2014
(hereinafter the „ Act ‟).
22.2. In respect of the first period, learned counsel has relied upon two
judgments of the Apex Court: first being Sudhir Madan v. Municipal
Corporation of Delhi , (2009) 17 SCC 597 , wherein the Scheme of the
Municipal Corporation of Delhi was accepted by the Court subject to
certain modifications and the Scheme of the NDMC. At the same
time, the Supreme Court clarified that if the legislature frames any
scheme, the same shall supersede the schemes prepared by the MCD
and the NDMC (paragraph 30).
22.3. The second judgment relied upon is Gainda Ram v. MCD , (2010) 10
SCC 715 (paragraphs 48, 50, 54-56, 59-64 and 67-71) to submit that
the old schemes were in force till 30.06.2011 and not thereafter and
thus, the previous declaration of any area as a non-vending zone shall
be rendered a nullity.
22.4. Since no law was forthcoming, the Apex Court in Gainda Ram v.
MCD , (2013) 11 SCC 623 (paragraphs 2, 4 and 5) observed that the
law had still not been passed and the Supreme Court continued to
grapple with the problem of regulation of street vendors. Time was
sought by the Government to consult the public and the authorities
concerned, pursuant to which, the Supreme Court directed complete
status quo in respect of all engaged in hawking and street vending as
on date. The status quo was to continue until the next date of hearing,
i.e. 05.03.2013. At the same time, a direction was passed to this Court
not to entertain any petition by or against the hawkers and street
vendors till the matter is heard and decided by the Supreme Court.
W.P. (C) 2556/2015 Page 12 of 50
22.5. Ms.Unninayar submits that it was in this background, that the
judgment in Maharashtra Ekta Hawkers Union (Supra) was
pronounced. It was directed to constitute Town Vending Committees
(„ TVC ‟) in a time bound manner; which were to function strictly in
accordance with the 2009 Policy. Learned counsel submits that the
Town Vending Committee was free to divide up the city into vending
and no-vending zones, subject to the rider that no location will be
designated as „no vending‟ without full justification, i.e. the public
benefit of such designation should clearly outweigh the potential loss
of livelihoods and non-availability of affordable and convenient access
of the general public to street vendors. It is submitted that as per the
Scheme, due notice was to be served prior to clearing up or relocation.
The Apex Court further directed that all street vendors shall be
registered and once registered, they shall be entitled to operate in the
area specified by the Town Vending Committee. All existing street
vendors were allowed to operate till the exercise of the registration and
creation of vending zones in terms of the 2009 Policy and once the
exercise is completed, in terms of the directions/orders of the Town
Vending Committee. These directions were to remain in force till an
appropriate legislation is brought into force. The stay upon cases
before the High Court was vacated and the High Courts were to decide
the matters keeping in view the directions. It is submitted that the
Apex Court had directed in paragraph 21.12 of Maharashtra Ekta
Hawkers Union (Supra) that the 2009 Policy would prevail over all
delegated legislation and thus, earlier schemes were no longer good.
Additionally, the declaration of no-hawking/vending zones as
contemplated in the 2009 Policy and Maharashtra Ekta Hawkers
W.P. (C) 2556/2015 Page 13 of 50
Union (Supra) had not been completed as although couple of
meetings of the TVC took place, the demarcation could not take place.
Relying upon this judgment, Ms.Unninayar contends that all former
vending zone and non-vending zones as per the earlier orders were no
longer in force and the zones were to be freshly demarcated by the
Town Vending Committee.
22.6. Learned counsel submitted that once the Act came into force, the
declaration of no-vending zone was to be as per the Plan contemplated
in Section 21 to be prepared by the local authority on the
recommendations of the Town Vending Committee. Ms.Unninayar
has drawn our attention to the Clause 3 (e) of the First Schedule to the
Act which states that “ till such time as the survey has not been carried
out and the plan for street vending has not been formulated, no zone
shall be declared as a no-vending zone. ” Our attention has also been
drawn to the Second Schedule, which provides for matters to be
provided in the Scheme for street vendors. More particularly, Clause
(zb) provides for the principle of relocation to be subject certain
criteria, including the avoidance of relocation in absence of a clear and
urgent need for the land in question.
22.7. Learned counsel for NASVI, has next relied upon paragraph 2 of the
judgment of a coordinate bench of this Court in National Association
of Street Vendors of India v. South Delhi Municipal Corporation
and Ors. , 2014 SCC OnLine Del 4198 dated 20.08.2014 to submit
that insofar street vending is concerned, the matter is entirely covered
by the Act and that S.3(3) prohibits the eviction of any vendor until the
completion of survey. Our attention is also drawn to orders dated
10.12.2014, 15.01.2015 and 22.04.2015 of this Court in National
W.P. (C) 2556/2015 Page 14 of 50
Association of Street Vendors of India (NASVI) v. South Delhi
Municipal Corporation and Ors. , W.P. (C) 8661/2014 where a
coordinate bench directed that no street vendor shall be evicted in
terms of S. 3(3) and if any person has been evicted, they shall be
permitted to return.
22.8. Ms.Unninayar submits that the judgment in Bhola Ram Patel v. New
Delhi Municipal Corporation , 2016 (157) DRJ 584 and the
subsequent clarification judgment dated 27.09.2016 directing inter
alia , two stage survey and first stage to identify vending sites and
removal of vendors to clear walkways while giving priority to pre-
existing rights, are against the provisions of the Act and the prior
judgments of the Supreme Court and this Court.
22.9. Similarly, it is submitted that the orders dated 08.08.2016 (paragraphs
14 and 16), 09.09.2016, and 05.10.2016 (paragraph 30) in Hawkers
Adhikar Suraksha Samiti v. Union of India & Ors. , W.P. (C)
6130/2016 are against judgments of the Supreme Court, provisions of
the Act and the prior judgment of this Court reported at 2014 SCC
OnLine Del 4198 .
22.10.It is also contended that the dismissal of the consequent SLP [SLP (C)
32023/2016] from the order dated 05.10.2016 does not affirm the
interim order in any way as in limine dismissal of SLP does not take
away any alternate rights. Reliance is placed on Kunhayammed v.
State of Kerala , (2000) 6 SCC 359 ; Fuljit Kaur v. State of Punjab ,
(2010) 11 SCC 445 (paragraph 7); and State of Punjab v. Davinder
Pal Singh Bhullar , (2011) 14 SCC 770 (paragraph 113).
22.11.On the factual aspect, Ms.Unninayar submitted that the street vendors
have been squatting/hawking at Pushpa Market since a long time prior
W.P. (C) 2556/2015 Page 15 of 50
to 30.06.2011 and the judgment in Maharashtra Ekta Hawkers Union
(Supra) dated 09.09.2013 and thus, the submission of the petitioners
that they have started squatting under the garb of the judgment of the
Apex Court is misplaced. To this end, respondent no.8 has filed an
affidavit dated 09.01.2017 annexing sample challans of street vendors
proving that they have been vending from prior to 30.06.2011.
22.12.Thus, learned counsel concludes that the present writ petition may be
dismissed with costs and the issue of declaration of the said market be
left to the local authority on the recommendation of the Town Vending
Committee and after the Survey in accordance with Sections 21, First
and Second Schedules of the Act.
CM 5125/2017
22.13.We may add that the arguments in the present writ petition were
concluded and the judgment was reserved on 01.02.2017; but
thereafter, the respondent no.8 filed fresh application bearing CM
5125/2017 for placing certain additional documents. The documents
sought to be produced were certain tehbazari receipts issued by the
respondent SDMC for “ Squatters Regular 6X4 ” and “ 7X5 Rehri
Stalls/Others ” at Pushpa Market. Relying upon these documents, it
has been submitted that the same belie the submission of the SDMC
that the area is a no-squatting zone.
22.14.In response to the stand taken by the SDMC, Ms.Unninayar submitted
that the SDMC is trying to dilute the definition of „street vendors‟ by
creating fictitious categories of vendors. Further the SDMC has taken
divergent stands at different times before this Court as it has fluctuated
between the area being a no-vending zone and vending zone on one
hand and on the other, contradicted itself by allowing certain squatters.
W.P. (C) 2556/2015 Page 16 of 50
REJOINDER SUBMISSIONS OF THE PETITIONERS
23. Mr.Proothi, learned counsel for the petitioners, has sought to rebut all
the contentions raised by the counsel for NASVI/respondent no.8 as
under:
23.1. Learned counsel has reiterated the factual position with regard to the
declaration of Pushpa Market as a no-vending zone as mentioned in
the writ petition and reiterated in the aforegoing paragraphs. It was
added that in W.P. (C) 1699/1987, Sh.R.C. Chopra (ADJ) was
appointed to look into the question as to whether the implementation
of the scheme by the erstwhile MCD has been consistent with the
norms and procedure indicated by the Supreme Court. In its report,
the Chopra Committee was of the opinion that the said area in question
i.e. Main Pushpa (Central) Market is a very congested area and hence,
squatters may not be permitted to carry on their business from this
area. It is submitted that the Supreme Court has on numerous
occasions laid down the principles on the basis of which hawkers and
squatters may be granted licences such as the National Policy, 2004
and the National Policy, 2009 and the hawkers at the said market do
not fall within the scope of any of them. The hawkers have neither
applied under any of the schemes nor have been granted any rights by
the MCD to carry on tehbazari in the area.
23.2. Our attention was also directed towards an affidavit filed in the
Supreme Court in W.P. (C) 1699/1987, pursuant to an order dated
26.07.2006, clarifying the position of the hawkers occupying spaces in
non-hawking zones as under:
“ 10. It is most respectfully submitted that the orders passed
by the Hon‟ble High Court of Delhi in these matters ought
W.P. (C) 2556/2015 Page 17 of 50
to be set aside since the claimants in this case are
misleading the courts time and again. The claimants are not
eligible for squatting in Pushpa/Central Market. Moreover
the same is a non-squatting zone. These claimants have no
right to squat in this area. ”
23.3. It is next submitted that despite the numerous orders and the
resolutions, the members of the petitioner no.1 have been tackling the
nuisance created by the squatters on a daily basis and no assistance is
forthcoming from the local police.
23.4. In response to the legal submissions of Ms.Unninayar, it is submitted
that the specious argument that the hawkers are protected by the
judgment of the Apex Court in Maharashtra Ekta Hawkers Union
(Supra) has been raised time and again, but the hawkers in the Central
Market area have failed to show as to how they are covered by the
judgment. Learned counsel submits that the judgment makes it clear
that firstly, no hawking shall be permitted in no-hawking/no-vending
zones; secondly, it protects the rights of all existing hawkers and not
the ones who have come forward claiming their rights as hawkers. It
is submitted that under the garb of Maharashtra Ekta Hawkers Union
(Supra) , as many as 800 new hawkers and squatters have sprung up in
the area of Pushpa Market, making it difficult for the public to pass
therein.
23.5. Learned counsel for the petitioners has submitted that the hawkers and
vendors, who were vending in this area were pursuant to the orders of
the Apex Court and this Court, relocated and provided alternative
spots to squat and the area of Pushpa Market was directed to be kept
free from any encroachment.
W.P. (C) 2556/2015 Page 18 of 50
23.6. Mr.Proothi contended that the submission of NASVI to the effect that
schemes put in place by MCD and other authorities do not hold good
after 30.06.2011 is misplaced. He submits that the judgment in
Maharashtra Ekta Hawkers Union (Supra) specifically deals with
the contention of the respondent no.8.
23.7. In response to the pre- Maharashtra Ekta Hawkers Union (Supra) era
it is submitted that the reliance on paragraphs 30 and 31 of the
judgment in Sudhir Madan (Supra) are mere submissions made by
the counsel for the parties. It is submitted that Gainda Ram [(2010)
10 SCC 715] recognizes Sections 225, 226, 330 and 369 (2) of the
New Delhi Municipal Council Act, 1994 as law and as per the
provisions, a hawker can only be permitted to squat after due
permission from the commissioner, NDMC (paragraph 56). Further,
paragraph 60 of the judgment provides that the schemes shall provide
for hawking and no-hawking zones and the role and obligations of the
hawkers towards society for maintenance of law and order have been
defined. It is contended that the judgment, for the first time, placed an
embargo on the operation of schemes put in place by the MCD,
NDMC and other statutory authorities till 30.06.2011 and the
appropriate government was directed to enact a law on the basis of the
pending bill, so that the hawkers precisely know the contours of their
rights.
23.8. Mr.Proothi next contends that the reliance upon Maharashtra Ekta
Hawkers Union (Supra) to the effect that all former vending and non-
vending zones are no longer in force and such zones are to be freshly
demarcated by the Town Vending Committee is also misplaced as:
W.P. (C) 2556/2015 Page 19 of 50
(i) No such order was ever made by the Apex Court, on the
contrary, the Apex Court removed the embargo placed in W.P.
1699/1987 of the applicability of the schemes only till
30.06.2011 and also directed that until the enactment of a
legislation, the guidelines of National Policy of 2009 shall be
followed (paragraph 20);
(ii) The Guidelines of the National Policy clearly show that the
concept of hawking and non-hawking zones must be applied
ensuring vending in a manner that there is no overcrowding and
unsanitary conditions in public places which is the case of the
petitioners herein [paragraph 4.2 (d)];
(iii) The consequent Town Vending Committee was to while
demarcating zones, in the case of Delhi and Mumbai, consider
the work already undertaken by the municipal authorities in
furtherance of the directions of the Apex Court and the
municipal authorities shall take action in terms of paragraphs
4.2(b) and (c) [paragraph 21.6];
(iv) The 2009 Policy also provided for registration of vendors, but it
is an admitted case that the vendors do not have any licence and
are not paying any fee to the municipal corporation but, infact,
have sprung up after the judgment in Maharashtra Ekta
Hawkers Union (Supra) .
23.9. Learned counsel has submitted that even after coming into force of the
Act in 2014, the hawkers cannot be permitted to squat. The protection
is only granted to „existing‟ vendors till the time the survey is
conducted. Existing vendors, as per Section 4 of the Act, are those
who have a tehbazari /other licence to vend from the authorities
W.P. (C) 2556/2015 Page 20 of 50
concerned, which is not the case of the hawkers before this Court.
Since none of the hawkers in the Lajpat Nagar area have been granted
any permission of licence after the year 1996, the vendors/hawkers
before this Court cannot be said to be covered under the protection of
Section 3. Thus, a combined reading of sections 3 and 4 show that the
street vendor is one who has a right to squat/hawk in a particular area
and such right has been given in the form of the licence. This has also
been reiterate by a coordinate bench of this Court in Bhola Ram Patel
(Supra) (LPA 136/2016) vide order dated 27.09.2016.
23.10.It is next submitted that the Act also provides for vending areas to be
demarcated as non-vending zones and thus, the concept is not alien to
the Act. The Supreme Court has repeatedly held that the rights of
vendors under Article 19 (1) (g) are subject to reasonable restrictions
and if the same are not imposed, the hawkers would hold whole cities
to random, hence the argument that till the time the Town Vending
Committee conducts its surveys and demarcates hawking and non-
hawking zones, no zone is a non-hawking zone, is bad in the eyes of
law and against the larger interest of the public. Further, the said issue
has already been considered by a coordinate Bench of this Court,
which after hearing the petitioners herein, vide order dated 05.10.2016
in W.P. (C) 6130/2016 directed the continuance of the non-squatting
zones declared under the schemes prior to the enforcement of the Act
as non-squatting zones so as to balance the larger interest of the
genereal public (paragraph 28 and 29).
23.11.That the said order was challenged before the Supreme Court by an
SLP [SLP (C) 32023/2016] and the Apex Court has affirmed the order
of this Court by dismissing the SLP. Mr.Proothi submits that all the
W.P. (C) 2556/2015 Page 21 of 50
precedents and opinions of various courts go to show that the
argument of the respondent no.8 that there is no concept of
hawking/non-hawking zones is untenable and incredibly farfetched
and therefore, should be rejected by this Court.
23.12.Learned counsel relied upon Sudhir Madan (Supra) to submit that the
Supreme Court has been very strict in maintaining the areas once
cleared from encroachment as encroachment free and has time and
again held that the civic authorities must do their job of clearing the
areas from encroachments.
23.13.Alternatively, Mr.Proothi submitted that Pushpa Market has been on
high security threat list as per the intelligence agencies on numerous
occasions. Already one incident has occurred causing loss of life and
property and a second one prevented. The loss was amplified as relief
could not reach the spot due to encroachments. It is also submitted
that despite specific orders of this Court and the Supreme Court, the
hawkers have disregarded such orders.
CM 5125/2017
23.14.In response to the application bearing No. CM 5125/2017 filed by the
respondent no.8, Mr.Proothi submitted that the same is nothing but an
attempt to mislead this Court and prolong the present litigation. The
mala fides of NASVI are writ large by the fact that the application was
filed after extensive arguments were heard and the judgment was
reserved in the present matter. It is submitted that the persons in
respect of whom these receipts/ challans have been issued are actually
shopowners and not squatters. The mentioning of the terms
tehbazari /squatters/stalls is merely nomenclature used by the SDMC
when actually the holders are shopowners.
W.P. (C) 2556/2015 Page 22 of 50
RESPONSE OF SDMC
24. Learned counsel for the SDMC has maintained the categorical stand
that the area in question is a no-vending/no-squatting zone and the
area has been cleared on numerous occasions, only to be occupied
again within hours. Learned counsel further submitted on the
following lines:
24.1. It is submitted that the respondent no.8 and petitioners have failed to
understand the true import of the order dated 13.11.1996 of the
Lieutenant Governor as the same goes to protect the lives of all
citizens, be it members of the petitioner no.1 or the respondent no.8.
24.2. In response to the documents sought to be brought on record with
C.M.5125/2017, learned counsel submitted that in Pushpa Market,
there are the following types of shops:
(i) Shops occupied by the members of the petitioners;
(ii) Tehbazari sites measuring 7‟X5‟ (covered) and 6‟X4‟
occupying since the 1960s under the Gadgil Assurance Scheme,
being prior to the Gainda Ram Scheme; and
(iii) Besides these, the others are unauthorised encroachers which
have been removed by the corporation from time to time.
24.3. Additionally, there are 49 covered tehbazari sites measuring 6‟X13‟
allotted to shop owners. The SDMC has never removed this category
of shop owners and have been occupying permanent shops/sites under
allotment. Our attention was also diverted to an affidavit filed before
the Supreme Court in W.P. (C) 1699/1987, the relevant portion of
which reads as under:
W.P. (C) 2556/2015 Page 23 of 50
“ 5. The gist of the relevant orders of this Hon‟ble Court in
relation to the above categories of tehbazaris were as
follows
Order dated 01.05.1997
This Hon‟ble Court held that squatters found eligible
under the R.C.Chopra Committee shall be rehabilitated
in notified squatting zone to be decided by the
authorities.
Order dated 01.12.2000
This Hon‟ble Court noticed the policy decision taken by
the Government of the NCT of Delhi based on the
Lt.Governor‟s earlier decision dated 13.12.1996 where
it was decided that no Tehbazari was to be allowed in
sites close to the Bomb Blast site including Blocks D &
J. Thus the entire area was to be treated as a non-
squatting area and all those who are occupying those
areas will be removed and provided alternate site for
squatting in accordance to their seniority elsewhere.
Order dated 10.05.2001
This Hon‟ble Court has held that the old 6‟X4‟
tehbazaaries would not be covered by the judgment of
this Hon‟ble Court in Gainda Ram and thus allowed I.A.
356.
6. The applicants in I.A.No.394 are eligible squatters under
the Gainda Ram Scheme 6‟X4‟ open to sky. Alternate sites
have been offered to these squatters in alternative sites like
Tughlakabad, Defence Colony etc. Thus alternative site are
available in squatting areas to accommodate this category
of squatters.
7. The applicants in I.A.No.356 are old 6‟X4‟ tehbazari
holders in Central Market D & J Blocks, Lajpat Nagar and
were allotted Tehbazari during the period 1962-1968
pursuant to Gadgil Assurance Scheme.
8. As far as 7‟X5‟ category is concerned, these are covered
tehbazari holders and were allotted tehbazari during 1962-
1968 pursuant to Gadgil Assurance Scheme. ”
(Emphasis Supplied)
W.P. (C) 2556/2015 Page 24 of 50
24.4. It was clarified that the occupants of shops, described as „covered
tehbazari ‟, which are allotted on plots with specific shop numbers in
Pushpa/Central Market are neither on pavements/roads nor
encroaching on any public area. There are 53 tehbazari sites
measuring 7‟X5‟ (covered) and 71 tehbazari sites measuring 6‟X4‟ in
the area of Central/Pushpa Market, Lajpat Nagar. The tehbazari sites
measuring 7‟X5‟ (covered) were allotted during the years 1962-1968
under the Gadgil Assurance Scheme to licences rehriwalas or wooden
khokha holders whose khokhas were in existence prior to 31.12.1965.
Sites measuring 6‟X4‟ were also allotted during the same years i.e.
much prior to the Gainda Ram Scheme in 1992.
24.5. Learned counsel next submitted that after the Gainda Ram Scheme
came into existence in the year 1992 and under the
guidelines/directions of the Supreme Court, cases of the vendors in the
area of Central Zone were considered and the vendors whose cases
were approved by the Chopra Committee were shifted and allocated
sites at approved squatting sites. All other vendors, whose cases were
not approved, were removed from the Central Market Area.
24.6. Since the squatters were dispossessed and the area was declared a no-
squatting zone, the squatters filed applications/petitions before the
Supreme Court with the plea that there exist 53 tehbazaris of 7‟X5‟
and 71 of 6‟X4‟ prior to the Gainda Ram Scheme. This led to the
passing of the order dated 01.12.2000 in W.P. (C) 1699/1987 as
mentioned in paragraph 8 aforegoing.
24.7. Pursuant thereto, the erstwhile MCD issued notices to both the
tehbazaris to vacate the sites in the year 2001. The notices were
W.P. (C) 2556/2015 Page 25 of 50
challenged by permanent tehbazari holders of 7‟X5‟ alleging that they
are not tehbazari holders, but are shopkeepers having allotment of
land measuring size 7‟X5‟ with the permission to construct shops
thereupon on their own expense. It is submitted that this stand was
accepted by the MCD.
24.8. Subsequently, final notices were issued to the tehbazari holder of size
6‟X4‟ to vacate the sites within the stipulated period. The said
tehbazari holders again moved the Supreme Court in I.A. 356 in W.P.
(C) 1699/1987. The MCD filed an affidavit stating that they were
6‟X4‟ open tehbazari holders. Thereafter, the Supreme Court passed
the following order dated 10.05.2001:
“ I.A.No.356: The sole dispute in this interlocutory
application is whether applicants mentioned herein, who
are admittedly not the hawker on the pavement, but were
shop owner abutting the pavement (covered Tehbazari) are
not covered by the judgment of this Court in Gainda Ram.
In view of the affidavit filed on behalf of the MCD, which is
reiterated by the learned counsel appearing for the MCD,
and in view of the statement that earlier notice was issued
on account of certain confusion, we dispose of the matter by
holding that these persons are not covered by the judgment
of this Court in Gainda Ram .”
(Emphasis Supplied)
24.9. Learned counsel concluded that it is clear from the aforegoing that the
tehbazari holders who were allotted sites between 1962-68 were
allowed to operate from Central/Pushpa Market being old squatters
prior to the Gainda Ram Scheme. These persons, being allotted
permanent places and are not encroaching upon road or pavement,
thus, were not covered by the order dated 13.11.1996 of the Lieutenant
Governor. It is submitted that the removal of these authorized
W.P. (C) 2556/2015 Page 26 of 50
tehbazari holders would tantamount to removal of private shops from
the area.
24.10.It was submitted that the members of the respondent no.8, who are
encroachers on public land and have not been authorized by the
SDMC on any account and cannot equate themselves at par with the
authorised tehbazari holders allotted under the Gadgil Assurance
Scheme. Hence, reliance upon the tehbazari receipts issued to such
persons is misplaced.
25. We have heard the learned counsel for the parties and considered their
rival contentions. Since the submissions of the learned counsel are
quite verbose owing to the abuse of filing of „brief‟ written
submissions/legal points, we deem it appropriate to summarize the
contentions of the parties.
26. The submissions of Mr.Proothi, learned counsel for the petitioner, can
be summed up as under:
(i) Pursuant to a bomb blast on 21.05.1996 leading to loss of 13
persons coupled with monetary loss of crores of rupees, a high
level enquiry was ordered by the then Lieutenant Governor and
as per its recommendations, the Lieutenant Governor had by
order dated 13.11.1996 directed the authorities to clear all the
roads, lanes and by-lanes in Pushpa Market and further declared
the area to be a no squatting zone;
(ii) Thereafter, it has been the consistent stand of the erstwhile
MCD and SDMC that the area is a no squatting zone before the
various judicial forums;
(iii) The reliance placed by the respondent no.8 on Maharashtra
Ekta Hawkers Union (Supra) is misplaced inasmuch as it has
W.P. (C) 2556/2015 Page 27 of 50
been unable to show as to how the street vendors are covered by
the judgment particularly when the judgment makes it clear that
no hawking shall be permitted in no-hawking/no-vending zones
and as the judgment does not cover vendors who have propped
up after the judgment;
(iv) The submission of Ms.Unninayar that the schemes of the
municipal authority do not hold good after 30.06.2011 or after
Maharashtra Ekta Hawkers Union (Supra) is misplaced;
(v) Protection under Section 3 (3) of the Act is only to „existing‟
street vendors, i.e. those holding tehbazari /other licence to vend
from the authorities concerned;
(vi) The issue of no-vending zones has already been considered by a
coordinate Bench of this Court in W.P. (C) 6130/2016 and it has
been directed by order dated 05.10.2016 that the non-squatting
zones declared under the schemes prior to the enforcement of
the Act shall continue as non-squatting zones so as to balance
the larger interest of the general public;
(vii) The order dated 05.10.2016 in W.P. (C) 6130/2016 has already
been challenged before the Supreme Court by a petition seeking
special leave to no avail and thus, has attained finality; and
(viii) The persons whose receipts are sought to be relied upon in CM
5125/2017 are not street vendors, but infact shopowners and
that mentioning of terms like tehbazari /squatters/stalls on the
receipts is merely a nomenclature adopted by the MCD;
27. The submissions of the learned counsel for the respondent
no.8/NASVI can be summarized as under:
W.P. (C) 2556/2015 Page 28 of 50
(i) In light of Sudhir Madan (Supra) , Gainda Ram (Supra) and
Maharashtra Ekta Hawkers Union (Supra) , there was no
existing scheme declaring any zone let alone, Pushpa
Market/Central Market Lajpat Nagar, as a no-hawking/vending
zone at the time that the Act came into force;
(ii) The judgments of the Supreme Court including Maharashtra
Ekta Hawkers Union (Supra) and the Act enacted in 2014
would prevail over any executive decision passed in 1996 or
Supreme Court order passed in 2000 or even any further orders
passed from time to time;
(iii) As per the new Act, the determination of vending and no-
vending zones is to be done as per the plan contemplated in
Section 21 once the survey is carried out, which is yet to be
done;
(iv) The First Schedule of the Act categorically provides under
clause 3 (e) that, till such time as the survey has not been carried
out and the plan for street vending has not been formulated, no
zone shall be declared as a no-vending zone;
(v) The members of the respondent no.8 association have been
squatting at Pushpa Market since a long time as evidenced from
the challans placed on record and thus, the submission that they
have sprung up under the garb of Maharashtra Ekta Hawkers
Union (Supra) is misplaced; and
(vi) The SDMC have taken contradictory and inconsistent stands as
on one hand they have permitted certain squatters and at the
same time excluded others, thereby creating fictitious categories
of vendors.
W.P. (C) 2556/2015 Page 29 of 50
28. The categorical stand of the SDMC/respondent no.1 and 2 remains
that the area in question is a no-vending/no-squatting zone and the
area has been cleared on numerous occasions, only to be re-
encroached upon immediately. The persons whose receipts are sought
to be brought on record by CM 5125/2017 are of 7‟X5‟ (covered) and
6‟X4‟ tehbazari holders, who were allotted under the Gadgil
Assurance Scheme during the period 1962-1968, much prior to the
Gainda Ram Scheme. These persons, having been allotted permanent
places and not encroaching upon the road or pavement and are not
covered by the order dated 13.11.1996.
29. We proceed to analyse the rival contentions of the parties. This is a
classic case where having learnt our lesson, we still refuse to adhere to
the same. A bomb blast took place in the area of Pushpa/Central
Market on 21.05.1996 causing loss to both human life and property.
The damage was augmented by the failure of emergency services to
arrive at the site owing to congestion in the roads and lanes of the
market. This led to the order dated 13.11.1996 of the Lieutenant
Governor directing the authorities to clear all the roads, lanes and by-
lanes in Central/Pushpa Market.
30. At the time, the Apex Court was dealing with the problem of influx of
population to urban centres and proliferation of street vendors in W.P.
(C) 1699/1987. Numerous petitions and applications were being filed
before the Supreme Court, but the erstwhile MCD maintained that the
area was a no-squatting/no-vending zone.
31. Despite the bomb blast, order of the Lieutenant Governor dated
13.11.1996 and various orders of the Supreme Court from time to
time, respondent no.8/NASVI has sought to allege that owing to
W.P. (C) 2556/2015 Page 30 of 50
Sudhir Madan (Supra) , Gainda Ram (Supra) and Maharashtra
Ekta Hawkers Union (Supra) , followed by the new Act solely
empowering the Town Vending Committee to declare any area as a
no-vending zone, no area can be said to be a no-vending zone.
32. The said contention and the life of the schemes formulated prior to the
Act was considered by a coordinate bench of this Court in Hawkers
Adhikar Suraksha Samiti v. Union of India and Ors. , W.P. (C)
6130/2016 , which vide order dated 05.10.2016 directed that as an
interim measure, the schemes existing prior to the enforcement of the
Act shall continue to be non-squatting zones for the time being. The
relevant portion of the order reads as under:
“ 4. …It was alleged in the said writ petition that the
Respondents were carrying out eviction drives and have
been illegally removing the street vendors across the
National Capital in complete violation of the mandatory
provisions of the Act and the directions of the Supreme
Court dated 09.09.2013 in Maharashtra Ekta Hawkers
Union & Anr. v. Municipal Corporation, Greater Mumbai
& Ors.; (2014) 1 SCC 490. It was contended that since no
scheme has been in operation by virtue of the interim order
dated 08.08.2016, the Respondents are not entitled to
proceed with the so-called survey and resort to illegal and
highhanded eviction of the existing hawkers/ street vendors.
…
9. On behalf of South Delhi Municipal Corporation
(SDMC), a short affidavit dated 24.09.2016 has been filed
stating that Pushpa Market/Central Market, Lajpat Nagar is
a non-squatting zone and therefore encroachment removal
actions were being carried out regularly as per the
provisions of the Delhi Municipal Corporation Act, 1957
(for short 'DMC Act'). It is alleged that after the interim
order dated 09.09.2016 was passed by this Court not to
evict the street vendors without following due process of
law, the street vendors occupied the non-squatting zones
also at the instance of the writ petitioner and the officials
W.P. (C) 2556/2015 Page 31 of 50
are unable to take any steps for removal of the said
encroachments in the light of the order dated 09.09.2016.
10. On the basis of the said short affidavit, it is vehemently
contended by Shri Neeraj Kishan Kaul, the learned ASG
appearing for SDMC that it is necessary to permit the
SDMC to take steps for removal of unauthorized street
vendors from the non-squatting zones.
…
27. So far as the submission of Sh.Neeraj Kishan Kaul, the
learned ASG appearing for South Delhi Municipal
Corporation that no street vending can be permitted in the
non-vending zones is concerned, we have noticed that in the
counter affidavit filed on behalf of NDMC in W.P.(C)
No.8042/2016 it is stated that prior to enactment of Street
Vendors (Protection of Livelihood and Regulations of Street
Vending) Act, 2014, under the schemes formulated by MCD
and NDMC, hawking and non-hawking areas were
demarcated and the hawkers/squatters were located only in
demarcated hawking zones in accordance with the priorities
mentioned in the schemes. It is also stated that in
accordance with the National Policy on Urban Street
Vendors formulated by the Government of India in the year
2004, which MCD had agreed to implement in principle,
Ward Vending Committees were constituted in all the 134
wards of MCD and that the said Committees were charged
with the duties of identifying the sites, declaring hawking
and non-hawking zones in consultation with various
stakeholders like Associations of Vendors/Traders, Resident
Welfare Associations, Traffic Police, etc.
28. It is relevant to note that the Act of 2014 also provides
for designation of vending zones and declaration of no-
vending zones. However, though the Act has come into force
on 01.05.2014, there are several lapses in proper
implementation of its provisions and consequently, no-
vending zones have not yet been declared in terms of the
provisions of the Act of 2014. Therefore, Sh.Neeraj Kishal
Kaul, the learned ASG submits that appropriate directions
may be issued to protect no-vending zones from
encroachments till the Government takes the necessary
action in terms of the provisions of the Act of 2014.
W.P. (C) 2556/2015 Page 32 of 50
29. Having regard to the fact that declaration of non-
squatting zones and non-vending areas is not inconsistent
with the provisions of the Act of 2014 which expressly
prohibits carrying out vending activities by street vendors in
no-vending zones, we consider it appropriate to direct as an
interim measure that non-squatting zones declared under
the schemes existing prior to enforcement of Act of 2014
shall continue to be non-squatting zones for the time being
so as to balance the larger interest of the general public.
30. We therefore direct as an interim measure that :
(i) the order dated 09.09.2016 in W.P.(C)
No.8042/2016 shall not be made applicable to the
areas identified as non-squatting zones under the
schemes existing prior to the enforcement of the Act
of 2014. ”
(Emphasis Supplied)
33. From the aforegoing, it is clear that the contention that the old
schemes were no longer in operation was considered by the coordinate
bench with specific reference in particular to Pushpa/Central Market
while seeking a direction to maintain the non-squatting zones.
Further, the respondent no.8 herein/NASVI was represented through
their counsel before the Bench when the order were passed. The order
was challenged before the Apex Court in Ajay Maken v.
Commissioner of Police and Ors. , SLP (C) 32023/2016 , which was
dismissed in limine . Despite the same, Ms.Unninayar has effectively
sought to re-argue the matter. We may note that the dismissal of an
SLP in limine does not lead to merger of the order of the inferior court
and thus, the original order remains intact and other remedies,
including review, remain open. At the same time, challenging the
order in separate proceedings is not an alternate remedy which can be
availed. We remain bound by the order of the coordinate bench.
W.P. (C) 2556/2015 Page 33 of 50
34. Even otherwise, we are unable to accept the submissions of the
learned counsel for the respondent no.8 as the judgments of the
Supreme Court sought to be relied upon do not lead to the conclusion
that all the old schemes were put to naught and vendors were given a
free hand to vend at any place of their choice. Such an interpretation
would lead to an incongruous situation where on one hand the
implementation of the Act qua conducting of survey and certification
of vendors remains in limbo, while on the other hand activities of
vendors continue in an unregulated manner.
35. There is no quarrel with the proposition that the schemes framed by
the municipal authorities and approved by the Courts would be subject
to any scheme/regulation/act framed by the legislature [ Sudhir Madan
(Supra) (paragraph 30)]; but the same would be limited to the
repugnancy/inconsistency.
36. The Supreme Court in W.P. (C) 1699/1987 was dealing with the
regulation of street vending activities in Delhi. By a detailed
judgment dated 09.10.2010 [ (2010) 10 SCC 715 ], the Division Bench
of the Supreme Court observed that the right to hawk on the streets of
Delhi having been recognised as a fundamental right under Article 19
(1) (g) and subject to reasonable restrictions under Article 19 (6)
[ Sodan Singh v. New Delhi Municipal Committee , (1989) 4 SCC
155 ]. Such restrictions could only be imposed by „law‟ and not by the
schemes and policies framed by the MCD and the NDMC. Thus, the
Apex Court disposed of the writ petition with the direction that the
problem of hawking and street vending could be regulated by the
schemes until 30.06.2011 and before such date, the appropriate
Government was to enact a law based upon the Model Street Vendors
W.P. (C) 2556/2015 Page 34 of 50
(Protection of Livelihood and Regulation of Street Vending) Bill,
2009. The relevant paragraphs of the judgment dated 09.10.2010 are
reproduced as under:
“ 45. It has been held by the Constitution Bench of this Court
in Sodan Singh [(1989) 4 SCC 155] that right to hawk on
the streets of Delhi is a fundamental right under Article
19(1)(g) of the Constitution but such right is not absolute
and is subject to reasonable restrictions under Article 19(6)
of the Constitution.
46. On a perusal of the aforesaid constitutional provision, it
is clear that the rights under Article 19(1)(g) can only be
controlled by law as contemplated in Article 19(6). …
47. On an analysis of the provisions under Article 19(6), it
is clear that the provisions under Article 19(6) are broadly
in two parts. The first part authorises that nothing in sub-
clause (g) of Article 19(1) shall affect the operation of
existing law insofar as it imposes reasonable restrictions, in
the interest of general public, on rights conferred by Article
19(1)(g). The second part is that nothing contained in
Article 19(1)(g) shall prevent the State from making any law
imposing, in the interest of general public, reasonable
restrictions on the exercise of rights conferred by Article
19(1)(g). Here we are not concerned with clauses (i) and
(ii) of Article 19(6).
48. It is, therefore, clear that reasonable restrictions on the
fundamental right under Article 19(1)(g) can be imposed
either by existing law or by a law which may be made by a
State in the interest of general public. Therefore, nothing
short of law can impose reasonable restrictions on a
citizen's fundamental right to carry on hawking under
Article 19(1)(g) of the Constitution.
…
61. Subsequent to the 2004 Policy a new National Policy on
Urban Street Vendors, 2009 (hereinafter “the 2009
Policy”) was framed on 17-6-2009. The most important
part of the 2009 Policy is that it recognises street vending
as an integral and legitimate part of urban retail trade and
distribution system, even when otherwise street vending is
sometimes projected as a major menace in urban areas
W.P. (C) 2556/2015 Page 35 of 50
aggravating traffic problems. But the 2009 Policy aims at
giving the street vendors a legal status by providing them
legitimate vending and hawking zones in the city in the town
master plans and development plans.
62. The National Policy, therefore, directs “Municipal
authorities should frame necessary rules for regulating
entry of street vendors on a time-sharing basis in
designated vending zones keeping in view three broad
categories — registered vendors who have secured a
licence for a specified site/stall; registered street vendors in
a zone on a time-sharing basis; and registered mobile street
vendors visiting one or the other vending zone;”.
…
67. In the background of the provisions in the Bill and the
2009 Policy, it is clear that an attempt is made to regulate
the fundamental right of street hawking and street vending
by law, since it has been declared by this Court that the
right to hawk on the streets or right to carry on street
vending is part of fundamental right under Article 19(1)(g).
However, till the law is made the attempt made by NDMC
and MCD to regulate this right by framing schemes which
are not statutory in nature is not exactly within the
contemplation of constitutional provisions discussed above.
However, such schemes have been regulated from time to
time by this Court for several years as pointed out above.
Even, orders passed by this Court, in trying to regulate such
hawking and street vending, is not law either. At the same
time, there is no denying the fact that hawking and street
vending should be regulated by law. Such a law is
imminently necessary in public interest.
68. Certain broad facts cannot be lost sight of. Whatever
power this Court may have had, it possibly cannot, in the
absence of a proper statutory framework, control the ever
increasing population of this country. Similarly this Court
cannot control the influx of people to different metro cities
and towns in search of livelihood in the background of the
huge unemployment problem in this country. While there is
burning unemployment on one hand, on the other hand
there is a section of our people, that, having regard to its
ever increasing wealth and financial strength, is buying any
W.P. (C) 2556/2015 Page 36 of 50
number of cars, scooters and three wheelers. No restriction
has apparently been imposed by any law on such purchase
of cars, three wheelers, scooters and cycles. There is very
little scope for expanding the narrowing road spaces in the
metropolitan cities and towns in India. Therefore, the
problem is acute. On the one hand there is an exodus of
fleeting population to metro cities and towns in search of
employment and on the other hand with the ever increasing
population of cars and other vehicles in the same cities, the
roads are choked to the brim posing great hazards to the
interest of general public. In the midst of such near chaos
the hawkers want to sell their goods to make a living. Most
of the hawkers are very poor, a few of them may have a
marginally better financial position. But by and large they
constitute an unorganised poor sector in our society.
Therefore, structured regulation and legislation is urgently
necessary to control and regulate the fundamental right of
hawking of these vendors and hawkers.
69. This Court finds that innumerable IAs have been filed in
this Court along with various objections by the hawkers,
most of the time collectively, complaining about steps taken
by the municipal authorities, namely, NDMC and MCD to
prevent them from hawking and vending. This Court has
tried its best to somehow deal with the situation. But it is
difficult for this Court to tackle this huge problem in the
absence of a valid law. The nature of the problem defies a
proper solution by this Court by any judicially manageable
standards.
70. This Court, therefore, disposes of this writ petition and
all the IAs filed with a direction that the problem of
hawking and street vending may be regulated by the present
schemes framed by NDMC and MCD up to 30-6-2011.
Within that time, the appropriate Government is to legislate
and bring out the law to regulate hawking and hawkers'
fundamental right. Till such time the grievances of the
hawkers/vendors may be redressed by the internal dispute
redressal mechanisms provided in the schemes.
…
78. However, before 30-6-2011, the appropriate
Government is to enact a law on the basis of the Bill
W.P. (C) 2556/2015 Page 37 of 50
mentioned above or on the basis of any amendment thereof
so that the hawkers may precisely know the contours of
their rights. This Court is giving this direction in exercise of
its jurisdiction to protect the fundamental rights of the
citizens.
79. The hawkers' and squatters' or vendors' right to carry
on hawking has been recognised as a fundamental right
under Article 19(1)(g). At the same time the right of the
commuters to move freely and use the roads without any
impediment is also a fundamental right under Article
19(1)(d). These two apparently conflicting rights must be
harmonised and regulated by subjecting them to reasonable
restrictions only under a law. The question is, therefore,
vitally important to a very large section of people, mostly
ordinary men and women. Such an issue cannot be left to be
decided by schemes and which are monitored by this Court
from time to time.
80. The second reason is that the appropriate Government
has already enacted a Bill and, therefore, the initial
decision-making in the field of legislative exercise is
complete. It has, of course, to be converted into a law by
following the constitutional process. That is why time till
30-6-2011 is given. ”
(Emphasis Supplied)
37. It is clear that the Apex Court was of the view that neither the schemes
nor the 2004 or 2009 Policy were „law‟ as contemplated in Article 19
(6) and thus, were impotent to regulate the fundamental right to hawk.
At the same time, the Supreme Court allowed the regulation of the
street vending till 30.06.2011 by the present schemes in the forlorn
hope that an appropriate legislation shall be enacted by then.
38. The appropriate Government had failed to comply with the direction
of the Apex Court in paragraphs 70 and 78 inasmuch as it failed to
bring in legislation by 30.06.2011. This led to the Apex Court to
W.P. (C) 2556/2015 Page 38 of 50
direct maintenance of status quo on 15.07.2011. The order reads as
under:
“ Heard learned counsel for the applicants and perused
the record.
Since judgment of this Court has so far not been
implemented, inasmuch as appropriate legislation has not
been enacted by the competent legislature, we direct the
parties to maintain the status quo as it is obtaining today. ”
39. On 02.02.2012, the previous order was slightly modified and the
NDMC was directed not to “ remove any encroachment other than
those which are on footpath or road. ” The Supreme Court on
01.05.2012 vacated the order dated 15.07.2011 and directed the
NDMC to make allotment of identified spaces and identify sites in
accordance with the 2006 scheme. Therefore, it had become clear that
the Supreme Court had once again attempted to regulate street vending
as per the old regime having given up hope of timely enactment of a
law. Thus, it cannot be said that the old regime of schemes and
policies can no longer regulate the activities of street vendors.
40. Later on 31.03.2013 [ (2013) 11 SCC 623 ], the Apex Court observed
that the appropriate legislation had not been enacted and the Court was
once again grappling with numerous applications and petitions. Since
the Government of NCT of Delhi had sought time to consult the public
and other authorities, the Court directed a complete status quo in
respect of all persons engaged in hawking and street vending in entire
area of Delhi. The interim order was continued on 05.03.2013 and
29.04.2013. On the latter date, it was contended by the counsel for
few applicants before the Supreme Court that since the legislation has
been unduly delayed, the Court may direct implementation of the
W.P. (C) 2556/2015 Page 39 of 50
National Policy for Urban Street Vendors, 2009. The matter was
ultimately disposed of in terms of the order dated 09.09.2013 in
Maharashtra Ekta Hawkers Union (Supra) and the directions
contained therein were to read as a part of the same.
41. When the Apex Court was hearing Maharashtra Ekta Hawkers
Union (Supra) , it was submitted by a counsel representing the street
vendors/hawkers that until the enactment of a legislation, the Supreme
Court may ordain the implementation of the 2009 Policy. This found
favour with the Court, which directed the implementation of the 2009
Policy. The Policy provides for principled demarcation of
„Restriction-free Vending Zones‟, „Restricted Vending Zones‟ and
„No-vending Zones‟ (Para 4.2) by the Town Vending Committee (Para
4.5.1). No area was to be notified as a „No-vending Zone‟ without full
justification wherein public benefit overweighed the loss of livelihood
and access of general public to street vendors [Para 4.2 d)]. For the
purpose of demarcation, the Town Vending Committee was to work
out a non-discretionary system [Para 4.5.2 (e)]. The Apex Court had
further issued directions in order to facilitate the implementation of the
2009 Policy in a time-bound manner. We deem it appropriate to
extract the relevant directions hereunder:
“ 21. For facilitating implementation of the 2009 Policy, we
issue the following directions:
21.1. Within one month from the date of receipt of copy of
this order, the Chief Secretaries of the State Governments
and Administrators of the Union Territories shall issue
necessary instructions/directions to the department(s)
concerned to ensure that the Town Vending Committee is
constituted at city/town level in accordance with the
provisions contained in the 2009 Policy. For the cities and
W.P. (C) 2556/2015 Page 40 of 50
towns having large municipal areas, more than one Town
Vending Committee may be constituted.
…
21.4. The task of constituting the Town Vending Committees
shall be completed within two months of the issue of
instructions by the Chief Secretaries of the State and the
Administrators of the Union Territories.
…
21.6. The Town Vending Committees shall be free to divide
the municipal areas in vending/hawking zones and sub-
zones and for this purpose they may take assistance of
experts in the field. While undertaking this exercise, the
Town Vending Committees constituted for the cities of Delhi
and Mumbai shall take into consideration the work already
undertaken by the municipal authorities in furtherance of
the directions given by this Court. The municipal authorities
shall also take action in terms of Paras 4.2(b) and (c).
21.7. All street vendors/hawkers shall be registered in
accordance with Para 4.5.4 of the 2009 Policy. Once
registered, the street vendor/hawker, shall be entitled to
operate in the area specified by the Town Vending
Committee.
21.8. The process of registration must be completed by the
municipal authorities across the country within four months
of the receipt of the direction by the Chief Secretaries of the
States and Administrators of the Union Territories.
…
21.12. The State Governments, the Administration of the
Union Territories and municipal authorities shall be free to
amend the legislative provisions and/or delegated
legislation to bring them in tune with the 2009 Policy. If
there remains any conflict between the 2009 Policy and the
municipal laws, insofar as they relate to street
vendors/hawkers, then the 2009 Policy shall prevail.
…
21.15. All the existing street vendors/hawkers operating
across the country shall be allowed to operate till the
exercise of registration and creation of vending/hawking
zones is completed in terms of the 2009 Policy. Once that
exercise is completed, they shall be entitled to operate only
W.P. (C) 2556/2015 Page 41 of 50
in accordance with the orders/directions of the Town
Vending Committee concerned.
21.16. The provisions of the 2009 Policy and the directions
contained hereinabove shall apply to all the municipal
areas in the country.
21.17. The aforesaid directions shall remain operative till
an appropriate legislation is enacted by Parliament or any
other competent legislature and is brought into force. ”
(Emphasis Supplied)
42. The judgment of the Apex Court signalled two aspects: first, the
Supreme Court had refused to wait for an appropriate legislation and
directed the regulation of street vending as per the 2009 Policy and
second, the street vendors/hawkers were granted protection until
registration. Such process was to be completed within four months
from the receipt of directions of Chief Secretaries; which were inturn
to be issued within one month of the receipt of the judgment. Thus,
the process of registration was to be completed within a maximum
period of five months from the receipt of the order of the Supreme
Court. At the same time, the Supreme Court directed that the Town
Vending Committee was to undertake the exercise of demarcation
having regard to the work already undertaken by the municipal
authorities in furtherance to the directions issued by the Supreme
Court.
43. From the aforegoing, it is clear that the Town Vending Committee was
to take into consideration the old schemes of the municipal authorities
in Delhi and Mumbai. This again goes to show that the old schemes
were not dead as the same were once again relied to regulate the
activities of vendors. The vendors were only granted interim
protection until registration and demarcation of vending/hawking
W.P. (C) 2556/2015 Page 42 of 50
zones, which was to be concluded in a time bound manner. These
directions were issued by the Supreme Court in the anticipation that
the problem relating to street vending and the conflicting interests of
various stakeholders could now be regulated by the 2009 Policy and
the consequent Town Vending Committee.
44. Therefore, we are unable to agree with the submission of
Ms.Unninayar that the judgments in Gainda Ram [(2010) 10 SCC
715] and Maharashtra Ekta Hawkers Union (Supra) erased the
previous classification of non-vending zones into a nullity and gave a
clan chit to the street vendors to hawk/squat at any place found fit by
them in disregard of the rights of the other stakeholders.
45. Even thereafter, before the 2009 Policy could regulate street vending
as directed in Maharashtra Ekta Hawkers Union (Supra) , the 2014
Act came into force on 01.05.2014.
46. Under the new Act, the Government of NCT of Delhi framed Rules
and Scheme for the implementation of the Act. The Rules and the
Scheme have been challenged before this Court and are hanging fire.
A coordinate bench of this Court in Janodaya Ekta Samiti (Regd.) v.
Govt. of NCT of Delhi and Ors. , W.P. (C) 6622/2015 and connected
matters vide order dated 08.08.2016 stayed the enforcement of the
Scheme and thus, the constitution of the Town Vending Committee is
deferred. It was in this background that the order dated 05.10.2016
was passed in Hawkers Adhikar Suraksha Samiti (Supra) as
mentioned in paragraph 32 aforegoing.
47. As per the Act, the declaration of no-vending zone is to be carried out
by the Plan for Street Vending to be prepared by the local authority in
consultation with the Town Vending Committee [Section 21 read with
W.P. (C) 2556/2015 Page 43 of 50
the First Schedule]. At the same time, Clause 3(e) of the First
Schedule provides that till the completion of survey and formulation
of the plan, no zone shall be declared as a no-vending zone. This
clause merely prohibits any further declaration of no-vending zones
and does not nullify the existing demarcation by the municipal
authorities. On the contrary, it tacitly recognises that certain areas
might have already been declared as no-vending zones.
48. Accordingly, we also subscribe to the view taken by the coordinate
bench of this Court Hawkers Adhikar Suraksha Samiti (Supra) in its
order dated 05.10.2016 that as an interim measure, the non-squatting
zones declared under the old schemes shall continue to be non-
squatting zones for the time being. Hence, the protection of Section 3
(3) shall not extend to vendors in no-vending zones.
49. The other judgments sought to be relied upon by the learned counsel
for the respondent no.8 also do not come to its aid. The reliance on
National Association of Street Vendors of India (Supra) is misplaced
as the said judgment deals with the applicability of the provisions of
Food Safety and Standards Act, 2006 vis-à-vis the provisions in the
Delhi Municipal Corporation Act, 1957 impinging on food safety and
health concerns. Further, the judgment or orders dated 10.12.2014,
15.01.2015 and 22.04.2015 in W.P. (C) 8661/2014 cannot be read to
lay any precedent in respect of no-vending zones.
50. Learned counsel for respondent no.8/NASVI had also drawn the
attention of this Court to certain receipts issued by the respondent
no.1/SDMC for “ Squatters Regular 6X4 ” and “ 7X5 Rehri
Stalls/Others ” alleging that the same belied the stand of the petitioner
and the SDMC of Pushpa/Central Market being a no-vending zone and
W.P. (C) 2556/2015 Page 44 of 50
further accusing SDMC of discriminating between similarly placed
squatters. The stand of the SDMC is that these persons were allotted
sites during the period 1962-1968 pursuant to the Gadgil Assurance
Scheme and occupy permanent sites neither upon the road or the
pavement.
51. To appreciate this submission, we deem it necessary to trace the
background to the order dated 01.12.2000. The Supreme Court in
1994 while dealing with the problem of hawking in Delhi in W.P. (C)
1699/1987 had directed the appointment of a judicial officer to look
into the question as to whether the implementation of the Scheme by
the MCD had been consistent with the norms and procedure indicated
by this Court and to make a report. Accordingly, this Court had
nominated Mr.R.C. Chopra, Additional District and Sessions Judge to
examine the erstwhile scheme and make his report. The Chopra
Committee submitted its report on 20.12.1996, about a month after the
declaration of Pushpa/Central Market as a no-vending zone. The
Report was considered and accepted by the Apex Court in W.P. (C)
1699/1987 on 01.05.1997 [ (1998) 1 SCC 188 ] while issuing certain
directions. It was directed that after the completion of the process of
identification of eligible squatters and allotment of sites, the zonal
heads of the MCD and SHOs of the areas shall be made personally
liable for ensuring that there is no squatting in non-squatting zones.
52. It was in this background that the order dated 01.12.2000 was passed.
Pursuant to the directions, the approved street vendors were shifted
while others were removed. Both the 7‟X5‟ and the 6‟X4‟ tehbazari
holders under the Gadgil Assurance Scheme were issued eviction
notices. Since the 7‟X5‟ tehbazari holders are entitled to construct
W.P. (C) 2556/2015 Page 45 of 50
covers and are effectively proper shops, they were no longer treated as
street vendors. This remains the consistent stand of the SDMC even
today.
53. There seems to be slightly less clarity as to the status of the 6‟X4‟
tehbazari holders. These persons were too allotted sites under the
Gadgil Assurance Scheme and were issued eviction notices pursuant
to the order dated 01.12.2000. The said tehbazari holders had
approached the Apex Court by filing I.A. 356 in W.P. (C) 1699/1987,
which was disposed of by the Court holding that the persons are not
covered by the judgment in W.P. (C) 1699/1987.
54. Thus, this category of tehbazari holders were held to be distinct and
apart from other street vendors which were to be removed/relocated as
per the order dated 13.11.1996 of the Lieutenant Governor and order
dated 01.12.2000 of the Supreme Court in W.P. (C) 1699/1987.
Accordingly, the squatters represented by respondent no.8 cannot
claim parity with either the tehbazari holders of 7‟X5‟, being infact
shop owners nor the holders of 6‟X4‟ which have been held by the
Apex Court to be excluded from the order dated 01.12.2000.
55. Further, in order to ensure that these tehbazari holders are not
blocking the roads, lanes or by-lanes, we had directed the SDMC to
place a site plan on record. The SDMC has placed the site plan on
record marking the location of tehbazari holders and that of the
unauthorized vendors, which is reproduced hereunder:
W.P. (C) 2556/2015 Page 46 of 50
Note: Area marked in red is blocked by the unauthorised street vendors.
W.P. (C) 2556/2015 Page 47 of 50
56. From the site plan, it is clear that these tehbazari holders are not
blocking the roads, lanes, by-lanes or pavements; on the contrary, the
roads, lanes, by-lanes and pavements are being blocked by the
unauthorised street vendors despite the area being declared as non-
hawking/non-vending zone. The effect of this is fatal and suicidal as
in case of a calamity, no vehicles of emergency services, including
ambulances or fire trucks, can reach the spot and relief would be
hampered on account of obstruction on the roads and by-lanes. The
order dated 13.11.1996 was passed in the background of a horrific
bomb blast which had resulted in the loss of several lives. The
emergency services could not reach owing to blockages and
encroachments on the passageways. With the passage of time, the
situation has only worsened with the unabated influx of people and
street vendors. Numerous persons visit the market on a daily basis
and this Court would be putting all of their lives and security in
jeopardy if we were to be a privy to the encroachers. Being pitched
between the conflicting rights of the livelihood of the street vendors
versus the life and security of the public in general, including the
street vendors. We are of the opinion that the former must bow to the
latter as without life and security, no question of earning a livelihood
can arise.
57. Additionally, we are informed by the counsel for the police and
SDMC that the area shown in red in the aforegoing map is blocked by
the unauthorised street vendors, but the conditions at the site are much
worse as the balance open areas are used by pedestrians, movement of
traffic and customers who no longer have access to the pavements. To
this effect various photographs were shown in Court.
W.P. (C) 2556/2015 Page 48 of 50
58. Accordingly, we conclude that in view of the order dated 05.10.2016
in Hawkers Adhikar Suraksha Samiti v. Union of India and Ors. ,
W.P. (C) 6130/2016 and reasons recorded in the aforegoing
paragraphs, Pushpa/Central Market continues to remain a no-squatting
zone. Needless to say that the same may be re-considered by the
Town Vending Committee once the same comes into operation.
59. Though the issue was covered in W.P.(C) 6130/2016, where
respondent no.8/NASVI was a party represented by the same counsel,
Ms.Unninayar had insisted that she be heard again and despite the
opposition of Mr.Proothi, a prolonged hearing was granted, matter was
adjourned as and when requested by Ms.Unninayar either on personal
grounds or that of her client being unavailable only to avoid any
grievance that the street vendors were not heard.
60. We allow the present writ petition with the following directions:
(i) The SDMC and the Delhi Police are directed to ensure that
Pushpa/Central Market, i.e. the area covered by the order dated
13.11.1996 of the Lieutenant Governor is maintained as a no-
squatting zone;
(ii) Once the area has been cleared, it shall be ensured that the
vendors are not allowed to return or squat again;
(iii) The SDMC shall conduct regular eviction drives;
(iv) Delhi Police is to render all the necessary assistance in eviction
of vendors to the SDMC;
(v) The zonal head of SDMC and the concerned SHO shall be
personally liable to ensure that direction (ii) is not flouted;
W.P. (C) 2556/2015 Page 49 of 50
(vi) Both the SDMC and the Delhi Police are to prepare and
maintain lists of persons removed from the area to ensure that
repeat offenders are brought to the book;
(vii) On receipt of the order, a meeting shall be convened of all the
concerned authorities to discuss the implementation of the order
and measures proposed to maintain the area as a non-
hawking/non-squatting zone; and
(viii) Any person aggrieved by unlawful vending in the area is at
liberty to approach the SDMC or the SHO at the first instance
and then this Court.
61. The directions shall continue until the Town Vending Committee
comes into operation and finally decides whether the area is to be a
vending zone or no-vending zone.
62. The writ petition is disposed of.
C.M. 33202/2016
63. This is an application filed by the respondent no.8/NASVI seeking
interim protection of the vendors during the pendency of the present
petition. In view of the order passed in the writ petition, no further
orders are required to be passed.
64. The application is disposed of.
G. S. SISTANI, J.
VINOD GOEL, J.
rd
JULY 3 , 2017 //
W.P. (C) 2556/2015 Page 50 of 50