SHIV PRASAD GUPTA vs. SOUTH DELHI MUNICIPAL CORPORATION & ANR.

Case Type: Writ Petition Civil

Date of Judgment: 08-11-2015

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Full Judgment Text

$~21 to 28
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 6694/2015

RAJNESH ..... Petitioner
Versus

SOUTH DELHI MUNICIPAL CORPORATION
& ANR ..... Respondents

+ W.P.(C) 6696/2015

SUGAN PANDEY ..... Petitioner
Versus
SOUTH DELHI MUNICIPAL CORPORATION
& ANR. ..... Respondents

+ W.P.(C) 6697/2015

SHYAM LAL ..... Petitioner
Versus

SOUTH DELHI MUNICIPAL CORPORATION
& ANR. ..... Respondents

+ W.P.(C) 6700/2015

RAMPHER PANDEY ..... Petitioner
Versus

SOUTH DELHI MUNICIPAL CORPORATION
& ANR. ..... Respondents

+ W.P.(C) 6701/2015

RAVI LEKHRAJ ..... Petitioner
Versus

SOUTH DELHI MUNICIPAL CORPORATION
& ANR. ..... Respondents

+ W.P.(C) 6707/2015

ROOP RAM ..... Petitioner
Versus

SOUTH DELHI MUNICIPAL CORPORATION
& ANR. ..... Respondents
W.P.(C) Nos.6694, 6696, 6697, 6700, 6701, 6707, 6727 & 6748 of 2015 Page 1 of 11



+ W.P.(C) 6727/2015

SHIV PRASAD GUPTA ..... Petitioner
Versus

SOUTH DELHI MUNICIPAL CORPORATION
& ANR. ..... Respondents

+ W.P.(C) 6748/2015

VIJAY PAL ..... Petitioner
Versus

SOUTH DELHI MUNICIPAL CORPORATION
& ANR. ..... Respondents

Counsel for the petitioners: Mr. Ramesh K. Mishra and Mr.
Krishna K. Singh, Advs.
Counsel for the respondents: Dr. Vikrant Narayan Vasudeva, Adv.
Mr. Prasanta Varma, Adv. for SDMC.
Mr. Santosh Kumar Tripathi, Adv. for
GNCTD.
Mr. Aditya Singh, Adv. for SDMC.
Mr. Vijay Sharma, Adv. for SDMC.
Mr. Naushad Ahmad Khan, Adv. for
GNCTD.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
O R D E R
% 11.08.2015

1. The petitioners in each of these petitions claim to be street vendors,
street vending from different locations and have filed these petitions to
restrain the respondents, South Delhi Municipal Corporation (SDMC) and
the Delhi Police from interfering with their respective vending activities till a
W.P.(C) Nos.6694, 6696, 6697, 6700, 6701, 6707, 6727 & 6748 of 2015 Page 2 of 11


certificate of vending is issued in their favour pursuant to the survey of street

vendors across NCT of Delhi.
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2. These petitions came up before this Court first on 17 July, 2015
when the counsel for the petitioners stated that these petitions be disposed of
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in terms of the order dated 5 May, 2015 in W.P.(C) No.4364/2015 and in
other connected petitions.
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3. Copy of the said order dated 5 May, 2015 annexed to the petitions
shows that the said petitions were disposed of, without issuing any restraint
orders against the Municipality or the Police and leaving it open for the
petitioners therein to approach the Town Vending Committee as and when
the same is constituted and taking note of Section 3(3) of the Street Vendors
(Protection of Livelihood and Regulation of Street Vending) Act, 2014 (The
Street Vendors Act).
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4. Attention of the counsel was drawn to the order dated 30 June, 2015
in W.P.(C) No.6115/2015 titled Brahm Pal Vs. New Delhi Municipal
Corporation and other connected petitions dealing with such matters and
further providing that if such petitions, in which virtually no reliefs are
pressed, continue to be filed, the same may be dismissed with costs.
W.P.(C) Nos.6694, 6696, 6697, 6700, 6701, 6707, 6727 & 6748 of 2015 Page 3 of 11


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5. It was on 17 July, 2015 also noticed that the order dated 5 May,
2015 supra, in accordance with which the relief was claimed in these
petitions also, did not grant any relief to the petitioners therein. It was yet
further observed that the petitions are being filed under a misconception that
without filing these petitions, the Town Vending Committee cannot be
approached.
6. On the request of the counsel for the petitioners, the matters were
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adjourned on 17 July, 2015.
7. The counsel for the petitioners has today drawn attention to paras 15
& 16 of Brahm Pal supra dealing with a case, where the Appellate Authority
constituted in terms of the judgment in Gainda Ram Vs. MCD (2010) 10
SCC 715 had restrained the municipality from dispossessing the petitioner
therein till his application for permanent tehbazari site was considered and
recording the statement of the counsel for the municipality that if on
verification, the same was found to be correct, the said petitioner will not be
dispossessed.
8. The counsel for the petitioners has also drawn attention to the order of
the Presiding Officer of the Zonal Vending Committee and the order dated
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14 September, 2012 of the Appellate Authority qua the petitioner in
W.P.(C) Nos.6694, 6696, 6697, 6700, 6701, 6707, 6727 & 6748 of 2015 Page 4 of 11


W.P.(C) No.6694/2015. It is stated that similar orders exist with respect to
the petitioner in other petitions on the basis thereof, it is contended that the
petitioners herein are at par with the petitioner referred to in paras 15 & 16 of
Brahm Pal and thus are also entitled to a restraint order against
dispossession.
9. I may at the outset say that there is no restraint order in favour of
petitioner referred to in paras 15 & 16 of Brahm Pal ; all that is recorded is
the statement of the counsel for the Municipality.
10. A perusal of the aforesaid orders shows that the petitioner in W.P.(C)
NO.6694/2015 was found to be neither a Category I squatter nor a Category
III squatter; however the Appellate Authority had directed status quo order
in view of the provisions of The Government of National Capital Territory of
Delhi Laws (Special Provisions) Second Act, 2011.
11. The counsel for the petitioners, on enquiry, states that the petitioners
herein are not basing their claims on the provisions of the Government of
National Capital Territory of Delhi Laws (Special Provisions) Second Act,
2011. It is contended that since there was an order of status quo in favour of
the petitioners herein, during the earlier regime, i.e. prior to the coming into
W.P.(C) Nos.6694, 6696, 6697, 6700, 6701, 6707, 6727 & 6748 of 2015 Page 5 of 11


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force of the Street Vendors Act w.e.f. 5 March, 2014, the same should
continue, till the claims of the petitioners under the said Act are considered.
12. The Street Vendors Act does not contain any provision, giving any
priority or beneficial treatment or weightage to such of the street vendors
who, under the earlier regime may have been held to be Category I or
Category III vendors or who may have interim order/s in their favour.
Section 3 of the said Act requires the Town Vending Committee, to be
constituted thereunder, to conduct a survey of all existing street vendors and
accommodate them in the vending zones in accordance with the plan for
street vending and the holding capacity of the vending zones. Sub-section
(3) thereof provides that till then, no street vendor shall be evicted or
relocated.
13. It is thus not as if street vending is to be unregulated and there is an
absolute right to street vend from wherever one may desire. It cannot also be
lost sight of that streets are primarily meant for passage, of pedestrians and
vehicles and unregulated street vending invariably is an obstruction to
movement on the streets. This Court, in exercise, particularly of writ
jurisdiction, has to pass orders which advance substantial justice, keeping in
view all relevant factors, and cannot be oblivious of the said concerns.
W.P.(C) Nos.6694, 6696, 6697, 6700, 6701, 6707, 6727 & 6748 of 2015 Page 6 of 11


14. Though, undoubtedly there has been a delay on the part of the
authorities concerned in constituting the Town Vending Committee and in
framing the scheme within the meaning of Section 38 of the Street Vendors
Act, but significantly no petition has come seeking mandamus to the
concerned authorities to fulfil their statutory obligations in this regard.
Instead, every day petitions are filed by persons, claiming to be street
vendors and seeking to restrain the Municipal Authority and the Police from
interfering in their street vending activity. In none of these petitions, as
noticed in Brahm Pal , any such relief has been given. These petitioners are
satisfied merely with the orders disposing off the petitions referring to
Section 3(3) of the Act. It is for this reason only that this Court, in Brahm
Pal was constrained to observe that such petitions, in future, will be
dismissed with costs. Obviously, the delay on the part of the Authorities in
framing the scheme, constituting the Town Vending Committee is to the
benefit of the persons claiming to be street vendors in as much as taking
advantage of Section 3(3) supra, they continue to street vend from wherever
they desire and which they may not be entitled to, once the survey aforesaid
has been conducted and pursuant to which only some would be
accommodated in the vending zones to be identified.
W.P.(C) Nos.6694, 6696, 6697, 6700, 6701, 6707, 6727 & 6748 of 2015 Page 7 of 11


15. Notwithstanding Section 3(3) of the Street Vendors Act, the
petitioners herein seek restraint against the Police and SDMC from
interfering with their vending activities. This Court would not be justified in
issuing such restraint without satisfying itself, (a) that the petitioners in fact
have been street vending from the site from which they claim; (b) whether
the said street vending is an obstruction to free movement on the streets /
pavements of the pedestrians and vehicles; (c) how many other street
vendors are vending from the said site or in vicinity thereof and if it is not
possible to accommodate all of them, which one of them should have
priority; (d) whether such street vending poses any security or fire or other
hazard; (e) whether such street vending is in infringement of the rights of any
other person’s residence or commercial establishment abutting the said street
etc. Not only is the said exercise not in the domain of jurisdiction under
Article 226 but undertaking such an exercise would tantamount to this Court
conducting the survey and formulating the scheme which the other
Authorities, under the Act aforesaid, have been mandated to do.
16. This Court, if were to in all such petitions, without enquiry as
aforesaid, issue restraint orders sought, would be creating chaos and jungle
raj on the streets of Delhi with the likely possibility of all the streets /
W.P.(C) Nos.6694, 6696, 6697, 6700, 6701, 6707, 6727 & 6748 of 2015 Page 8 of 11


pavements being blocked and orders with respect to same site being passed
in favour of more than one person and fights / disputes for primacy erupting
between street vendors and which the law enforcement agencies would be
unable to control because of each having an order in his / her favour.
17. The Act, vide Section 3(3) has already afforded the protection to the
street vendors. The Police and the Municipal Authorities are expected to
abide by the law of the land. If the Court were to in addition, issue restraint
orders as are sought in these petitions, it would be taking away the
jurisdiction of the said Authorities to, on the spot resolve the conflicts if
arising between the rights of the street vendors under the Street Vendors Act
and the rights of others viz. pedestrians, motorists, owners of properties
abutting streets etc. under other laws and their other statutory obligations. It
is for this reason only that this Court, as a general rule, has not been issuing
orders as are sought in these petitions.
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18. These matters are thus squarely covered by the order dated 30 June,
2015 in Brahm Pal supra. The petitioners also filed these petitions just to
create a record of having filed the petitions and without even seeking any
actual restraint as sought against the authorities. This is clear from the
W.P.(C) Nos.6694, 6696, 6697, 6700, 6701, 6707, 6727 & 6748 of 2015 Page 9 of 11


petitioners having sought disposal of the petition in accordance with the
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order dated 5 May, 2015 supra.
19. The counsel for the petitioners has drawn attention to the order of the
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Division Bench dated 10 December, 2014 in W.P.(C) No.8661/2014 titled
National Association of Street Vendors of India (NASVI) Vs. South Delhi
Municipal Corporation whereby a status report was directed to be filed,
whether the street vendors have been evicted from the areas to which the
petition pertained and directing the municipality to allow the said street
vendors to return. However, the same is an interim order and the counsel is
unable to state as to what was the final outcome of the petition or whether
the petition is still pending. The counsel for the petitioners at one stage
stated that W.P.(C) No.8661/2014 is still pending and at another stage that
the said petition is disposed of but the order disposing of the petition is not
handed over.
20. The petitioners having not withdrawn the petitions inspite of their
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attention being drawn to the order dated 30 June, 2015 in Brahm Pal , the
petitions are dismissed with costs on each of the petitioner of Rs.1000/-
payable to the respondent SDMC.
W.P.(C) Nos.6694, 6696, 6697, 6700, 6701, 6707, 6727 & 6748 of 2015 Page 10 of 11


Copy of this order be given dasti under the signatures of the Court
Master.

RAJIV SAHAI ENDLAW, J.
AUGUST 11, 2015
‘bs’
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(corrected and released on 26 August, 2015)



W.P.(C) Nos.6694, 6696, 6697, 6700, 6701, 6707, 6727 & 6748 of 2015 Page 11 of 11