Gainda Ram & Ors vs M.C.D. & Ors

Gainda Ram and others ...Petitioner(s) Versus M.C.D. and others ...Respondent(s)

LETTER NO.34/PS/NDMC/2009 DATED 06.03.2009 received from Smt. Sukhvinder Kaur, DHJS, Presiding Officer, Zonal Vending Committee, NDMC in I.A. 1 in I.A. No.407 in W.P.(C) No.1699/1987

WITH

I.A. Nos.2 & 3 in I.A. No. 407 in W.P. (Civil) No.1699/1987 I.A. Nos.4 & 5 in I.A. No. 407 in W.P. (Civil) No.1699/1987 I.A. No.6 in I.A. No. 407 in W.P. (Civil) No.1699/1987 I.A. Nos.7 & 8 in I.A. No. 407 in W.P. (Civil) No.1699/1987

WITH

W.P.(Civil) No.77 of 2010

And I. A. Nos. 211, 212 & 213 IN C.A. No.560 of 1998

J U D G M E N T

GANGULY, J.

1. Hawking on the streets of Delhi, whose

municipal limits have expanded over the

1 years, has been the subject matter of

several proceedings in this Court.

Initially in the early sixties, this

problem surfaced when this Court, hearing

an appeal from a decision dated 4th August,

1966 of the Punjab High Court, Circuit

Bench at Delhi, dealt with this question in

some detail in the case of Pyare Lal vs.

New Delhi Municipal Committee and another

[AIR 1968 SC 133]. In Pyare Lal (supra),

sale of cooked food on public streets which

was creating the problems of unhygienic

conditions came up before this Court in the

context of a resolution of the New Delhi

Municipal Committee stopping such sale. A

three-Judge Bench of this Court held that

no person carrying on the aforesaid

business of selling cooked food has any

fundamental right to carry on street

vending particularly in a manner which

2 creates unsanitary and unhygienic

conditions in the neighbourhood.

2. However, the controversy did not rest

there, nor did the problem of hawking come

to an end in view of Pyare Lal's judgment.

3. Several cases were filed thereafter in

different Courts and ultimately the leading

decision was rendered in the case of Sodan

Singh and others vs. New Delhi Municipal

Committee and others [(1989) 4 SCC 155] by

a Constitution Bench of this Court.

4. In Sodan Singh (supra) the petitioners, as

hawkers, were carrying on business by

squatting on the pavements of Delhi and New

Delhi and those squatters alleged that they

were allowed by the Municipality to carry

on such business on payment of charges

described as Tehbazari. As the Municipal

Authority subsequently refused to permit

3 them to continue their business, that

action of the municipality according to

those petitioners, interfered with their

fundamental right to carry on business

under Articles 19(1)(g) and 21 of the

Constitution of India. The correctness of

the decision in Pyare Lal (supra) was also

doubted. As such the matter was placed

before the Constitution Bench.

5. In Sodan Singh (supra) there was a paradigm

shift by this Court on the interpretation

of fundamental right of a hawker or a

squatter under Article 19(1)(g) to carry on

business. Various judgments of this Court

were considered and in paragraph 18 (at

page 169 of SCC) Justice Sharma (as His

Lordship then was) delivering the majority

judgment expressly held by referring to

Pyare Lal (supra) that, "we do not agree

with these observations." However, His

4 Lordship was quick to add that in the facts

considered in Pyare Lal (supra) the

decision was correct.

6. In our judgment, the decision in Pyare Lal

(supra) was thus distinguished and confined

to the facts of that case.

7. However, this Court in Sodan Singh (supra)

took a very broad view of a citizens right

under Article 19(1)(g) following its

decisions in the case of Fertilizer

Corporation Kamgar Union (Regd.) Sindri &

others vs. Union of India and others

[(1981) 1 SCC 568] and also the decision of

this Court in K. Rajendran & others vs.

State of Tamil Nadu & others [(1982) 2 SCC

273] and the decision of this Court in

Bombay Hawkers' Union & others versus

Bombay Municipal Corporation & others

[(1985) 3 SCC 528] and the Constitution

5 Bench decision of this Court in the case of

Olga Tellis & ors. vs. Bombay Municipal

Corporation & others [(1985) 3 SCC 545].

8. This Court in Sodan Singh (supra) came to

the conclusion that the hawkers and

squatters have a fundamental right to carry

on business on the public street, but the

same should be regulated. It was further

held by Justice Sharma (as His Lordship

then was) that the right of a hawker to

transact business, while going from place

to place, is recognized in India for a long

period. Of course such right is subject to

regulation since public streets demand its

use by the public and the streets are not

meant to facilitate some citizens to carry

on any private business. However, such

right of hawking for carrying on business

on the street cannot be denied if they are

properly regulated. The learned Judge made

6 it very clear that the said right is

subject to reasonable restrictions under

Clause (6) of Article 19. The learned

Judge relying on the ratio in Saghir Ahmad

and another vs. State of U.P. and others

[AIR 1954 SC 728] held that streets in

India are vested in the municipality and

they have to be used by the municipalities

as trustees. The learned Judge while

delivering the judgment observed:-

"We as a court in a welfare State do realise the hardship to which many of the petitioners may be exposed if they are prevented from carrying on the business. The only solution for this is the adoption of the policy of full employment, which even according to leading economists like Keynes will alleviate the problems of the unemployed to some extent. But as students of economics we also realise that every human activity has the `optimum point' beyond which it becomes wholly unproductive. It is for the government to take reasonable steps to prevent movement of people from rural areas to urban areas. That can be done by the development of urban centres in rural areas removed from each other at least by one hundred miles. This is more a matter of executive policy than for judicial fiat. We hope and trust that in administering the laws in force the authorities will keep in view humane considerations..."

7 9. Justice Kuldip Singh, in a concurring but a

different opinion, interpreted the right

under Article 19(1)(g) as comprehensively

as possible to include all the avenues and

modes through which a man earns his

livelihood excepting of course gambling and

trafficking in women. The learned Judge's

interpretation of Article 19(1)(g) if we

may say so, with respect, is remarkably

brilliant. His Lordship held, "in a

nutshell the guarantee takes into its fold

any activity carried on by a citizen of

India to earn his living. The activity of

course must be legitimate and not anti-

social like gambling, trafficking in women

and the like. (See para 28 page 174 of the

report).

10. The learned Judge referred to the decision

in Bombay Hawkers' Union (supra) and also

to the decision of this Court in Municipal

Corporation of Delhi vs. Gurnam Kaur 8 [(1989) 1 SCC 101] and highlighted the

importance of framing regulations to

regulate hawking business by creating

hawking and non-hawking zones. The learned

Judge in his concurring judgment made a

very pertinent observation after comparing

the position of street trading in India

with that prevailing in other countries and

noted that even in England where there is

complete social security and the citizens

are not driven to the streets to make out a

living out of poverty and sheer

unemployment, street trading is recognized.

Considering that an alarming percentage of

population in our country lives below

poverty line, the learned Judge held that

when the citizens by gathering meager

resources try to employ themselves as

hawkers and street traders, they cannot be

subjected to a deprivation on the pretext

that they have no right. The learned Judge

9 deplored that despite repeated suggestions

by this Court, the Government has not yet

framed regulations for regulating citizen's

right to carry on hawking business on the

streets.

11. Subsequently, also again this Court had to

deal with large number of petitions filed

by hawkers claiming a right to carry on

business in different parts of the

pavements under the control of Municipal

Corporation of Delhi (MCD) and New Delhi

Municipal Council (NDMC).

12. In Sodan Singh (supra) this Court was of

the view that detailed provisions, dealing

with all relevant aspects, and capable of

solving the problems of hawking in a fair

and equitable manner should be made and the

respondents (municipal authorities) should

proceed as soon as it may be possible. This

10 Court felt that municipal authorities would

be well advised to consider suggestions of

the hawkers while finalizing the schemes

with due regard to the requirements of the

relevant laws e.g. Delhi Police Act, 1978,

the Delhi Control of Vehicular and other

Traffic on Roads and Streets Regulations,

1980 etc. The Constitution Bench in Sodan

Singh (supra) clarified in paragraph 24 of

the judgment that the demand of the

petitioners therein that the hawkers must

be permitted on every road in the city,

could not be allowed, if the road was not

wide enough to conveniently manage the

traffic on it, no hawking may be permitted

at all, or may be sanctioned only once a

week, say on Sundays when the rush

considerably thinned out. Hawking could

also be justifiably prohibited near

hospitals or where necessity of security

measures so demanded. The demand that

11 permission to squat on a particular place

must be on a permanent basis was also

rejected on the ground that circumstances

were likely to change from time to time.

13. Pursuant to the directions of this Hon'ble

Court, a scheme was prepared by the NDMC

vide its Resolution No. 28 dated 10.11.1989

and the same was placed before the Lok

Adalat held at this Hon'ble Court on

November 19, 1989. Thereupon, a general

order was passed by the Lok Adalat after

going through the scheme submitted by NDMC

on the guidelines laid down by this Court

in Sodan Singh (supra) for implementation

of the scheme. A committee consisting of

two members of NDMC and a District Judge or

a Higher Judicial Officer was to be

constituted. Decision rendered by the

committee was to be made binding and final. 12

14. It was submitted before the Lok Adalat that

the NDMC did not have sufficient land which

belonged to the Central Government and

unless the Central Government allotted

suitable land, the Municipal Committee was

not in a position to accommodate all the

hawkers/squatters as per the scheme. The

Lok Adalat accordingly suggested that a

request was to be made by the Legal Aid

Committee to the Central Government for the

allotment of land. The NDMC as well was to

approach the Central Government for the

allotment of suitable land in the areas in

which the NDMC could go ahead with this

programme, of accommodating these

hawkers/squatters. These directions appear

from the order of the Lok Adalat.

15. The Judicial Officer for the committee was

to be nominated with the concurrence of the

High Court. Therefore, with the direction

13 of this Hon'ble Court, a Judicial Officer

(Shri G.P. Thareja) was nominated by the

High Court to preside over the Committee

which was constituted for looking into the

matter of hawkers in the NDMC area.

Thereupon, by an order dated 1st February

1990, this Hon'ble Court directed that

because the Committee which had been

constituted as aforesaid had become

functional, such Committee should proceed

to examine the claims of hawkers. As a

matter of first lot, first 100 claims were

to be taken up for examination in view of

the scheme prepared by the Municipal

Committee in terms of the direction of the

Court.

16. Appreciating the fact that since the work

allotted to the Judicial Officer requires

full time engagement, this Court by an

order dated 9.2.1990 issued directions

14 requesting the High Court to relieve the

said Judicial Officer who was appointed

exclusively for the work. In the said

order, directions were also given to the

learned Additional Solicitor General to

find out the possibilities of assigning

land to the Municipal Committee for making

it available for hawking.

17. Thereafter, the said Thareja Committee gave

its interim report to this Court and this

Court in its order dated 29.1.1991 noticed

the said interim report and found that 5000

applications were pending before the

Committee.

18. A complaint was made to this Court that the

Thareja Committee was applying very strict

norms for proof of eligibility. However,

this Court by its order dated 13.3.1992

rejected the said grievance. In order to

15 protect the rights of the genuine

claimants, this Court, after discussing the

report of the Thareja Committee, set out

nine directions. Those directions are as

under:

"(1) Out of the 440 claimants, the one-

member Thareja Committee will review the cases of those claimants whose claims have been rejected for non-compliance of the standard of proof laid down by Resolution No. 28, if claimant adduces any other authentic proof in the form of government or local authority records, the genuineness whereof is unimpeachable, and the Committee considers such proof presented to it to be adequate for review. If on perusal such proof is found to be unacceptable, the Committee may refuse to review its decision;

(2) In regard to the Sarojini Nagar claims, the Committee may evolve its own criteria or standard of proof de hors the one laid down by Resolution No. 28 and proceed to dispose of the claims on the basis thereof. In doing so fresh claims, if any, received may also be scrutinised;

(3) Public advertisements will be issued by the Committee in local newspapers having wide circulation inviting claims from squatters/hawkers who have not preferred claims or filed proceedings in court by a date to be stipulated therein, such claims must of course be consistent with the eligibility criteria laid down in Resolution No. 28. In addition to such public advertisement to be issued in newspapers of different languages such as English, Hindi, Urdu, South-Indian 16 languages, etc., to be determined by the Committee, handbills and pamphlets shall also be printed and distributed and pasted in different parts of the five zones selected for squatting/hawking inviting claims by the stipulated date. The advertisements/pamphlets, etc. will also cover claimants falling within directions (1) and (2) above;

(4) The Registry of this Court will not entertain any further Writ Petitions/Special Leave Petitions from any squatter or hawker concerning the sites chosen in the five zones mentioned hereinabove but will instead direct the petitioners to approach the Thareja Committee if they have moved such Writ Petitions/Special Leave Petitions before the date stipulated by the Committee (which date will be communicated to the Registry) and no Writ Petition/Special Leave Petition or any other proceeding shall be entertained by the Registry concerning the sites in the five zones after the stipulated date;

(5) The High Court of Delhi and all courts subordinate thereto will also follow the course of action set out in direction No. 4 hereinabove;

(6) All Writ Petitions/Civil Appeals/ Special Leave Petitions and CMPs/IAs therein which concern the five zones will stand disposed of by this order except one in which orders have been made from time to time and the claimants of all the matters disposed of pursuant to this direction will be at liberty to seek further directions in the one matter kept pending under this direction as interveners in case such need arises in future. This is essential to regulate such cases against NDMC;

17 (7) The interim stay orders will continue in respect of the 224 claimants whose claims have already been scrutinised by the Committee. In respect of the other claimants out of 440 whose claims have been rejected the status quo will be maintained for two months after the stipulated date in respect of those claimants who have sought review on or before the stipulated date. If during the said period of two months the exercise for review cannot be completed, the authorities desirous of taking any action will approach the Committee and seek its approval. If the Committee is of the opinion that there is no prima facie case for review it may permit such action to be taken 10 days thereafter so that the claimant likely to be affected may in the meantime approach the Court and obtain appropriate orders. In respect of all other cases the interim orders, if any, will continue till the Committee has scrutinised their cases and rejected them. Liberty is, however, reserved to NDMC to move for vacating any order if public interest so demands or it is found that the claimant is in any way misusing it;

(8) The Tharjea Committee will draw up a list of squatters/hawkers identified by it as entitled to protection so that their claims can be regulated in future also. In drawing up the list care should be taken to ensure that one and the same person does not secure a double benefit; and

(9) The Committee may also draw up a list of squatters/hawkers on the basis of their actual standing for being accommodated in future as and when there is a vacancy in the available space in the five zones or when such space is expanded or new space within the five zones is cleared for squatting/hawking. The Committee will also suggest sites within the zones, over and above those already identified, which can 18 be made available to accommodate such surplus squatters/hawkers who cannot be accommodated in the five zones on account of paucity of space."

19. In the meantime, several cases were filed

before this Court. From the judgment of

this Court in Saudan Singh etc. etc. vs.

NDMC and others etc. etc., (1992) 2 SCC

458, it appears that it was dealing with

Article 32 petitions along with some

Special Leave Petitions filed impugning the

order of the Delhi High Court. In that

judgment, this Court after considering the

ratio of Sodan Singh (supra) laid down the

principle relating to and reasonable

restrictions on street trading, as follows:

"It is, therefore, settled law that every citizen has a right to the use of a public street vested in the State as a beneficiary but this right is subject to such reasonable restrictions as the State may choose to impose. Street-trading is albeit a fundamental right under Article 19(1)(g) of the Constitution but it is subject to reasonable restrictions which the State may choose to impose by virtue of clause (6) of Article 19 of the Constitution. The right to street-trading under Article 19(1)(g) of the Constitution does not, however, extend to a citizen 19 occupying or squatting on any specific place of his choice on the pavement regardless of the rights of others, including pedestrians, to make use of the pavements. In other words the law laid down by the Constitution Bench permits a citizen to hawk on the street pavements by moving from one place to another without being stationary on any part of the pavement vested in the State. After laying down the law on the point in the context of Articles 14, 19 and 21 of the Constitution, the Constitution Bench remitted all the petitions to a proper Division Bench of this Court for final disposal." (See para 2)

20. In Saudan Singh (supra), this Court took

note of the appointment of Thareja

Committee as well as the salient features

of NDMC scheme. These features, noted by

this Court, run as under:

"(A) A squatter up to 1977 shall be eligible for the allotment of a stall/kiosk while the squatters pertaining to the years 1978 till 1980 shall be eligible for Tehbazari site, if no shop/kiosk is available. The squatters squatting since between 1981 to 1987 shall be considered for allotment for a Tehbazari site subject to availability of vacant space.

(B) The eligibility of a squatter shall be determined by documents such as receipts issued by the NDMC, Challans by Police and Toleration Permission etc. (C) Only non-licensable trades excluding sophisticated luxury items, imported or smuggled goods shall be permitted i.e. 20 pan, biri, cigarettes, chana, moongfali, hosiery items, toys, small stationery items, lottery tickets, fresh vegetables, uncut fruits, packed bakery items etc. will be allowed. No cooking and sale of food items exposed to dust causing health hazards shall be allowed. Open space measuring 6" x 4" for doing non-licensable trades and 4" x 3" for the trade of pan, biri, cigarettes will be allowed. (D) Not more than one member of the family, as defined by the NDMC, will be eligible for benefit under the Scheme. (E) The following percentage shall be allowed for the purpose of reservation in the allotment.

(a) General Category 60%

(b) Schedule Caste/Schedule Tribe 12-1/2%

(c) Physically Handicapped 10%

(d) Ex-serviceman 2-1/2%

(e) War Widows 2%

(f) Freedom Fighters 3%

(g) Extreme Hardship and Humanitarian grounds 10%."

21. In paragraph 10 of the judgment in Saudan

Singh (supra), this Court observed that it

was dealing with the question of livelihood

and survival of a large number of families

and in such a situation the Court should

adopt a compassionate approach so as to

ensure that genuine hawkers/squatters are

21 not denied their daily bread at the altar

of technicalities, while at the same time

ensuring that those who are out to exploit

and abuse the process of law do not

succeed. To achieve these objectives, the

Court gave certain directions which were

set out hereinabove.

22. The Court also gave directions about

hawkers/squatters, who were carrying on

their business within the administrative

control of MCD. It may be noted that MCD

has, within its jurisdiction, the entire

Union Territory of Delhi excluding the area

within the administrative control of NDMC

and Delhi Cantonment.

23. This Court also noted that after partition

of this country there was a large influx of

population to Delhi and the local authority

was constrained to evolve certain norms to

22 rehabilitate such people. This gave rise to

the Tehbazari system. Keeping this in view,

the MCD evolved a scheme of open Tehbazari

consisting of grant of permission to squat

on an earmarked spot for carrying on

business. On Gazetted holidays, festivals

days and Sundays, permission was given to

squat in various other areas. This system

is known as casual Tehbazari. The Court

noted that for the purpose of such kind of

hawking the city was divided into ten zones

and in all 288 squatting areas were

identified. This Court also noted that MCD

also prepared a scheme for regulating

hawking business in Delhi in different

zones. The scheme was prepared in

consultation with the Commissioner of

Police and the priority of allotment has

been determined on the following lines:

"(1) Persons who have been found squatting between 1970 and 1982 and whose names are contained in the survey report prepared after the survey conducted in 1982 will 23 receive first priority for grant of Tehbazari permission subject to the scrutiny of their claims;

(2) Insofar as casual Tehbazari on weekly holidays, festivals/melas, etc. is concerned, as well as at the 67 weekly bazars held, persons availing of the said benefit will continue to be granted the casual or weekly Tehbazari;

(3) Squatters who have started squatting/hawking in 1983 onwards and who are found on the date of survey would also be considered for grant of open Tehbazari of 6" x 4" subject to the production of proof of continuous squatting and proof of residence and nationality. Such squatters/hawkers would be granted open Tehbazari subject to availability of space provided they have cleared the dues of the MCD; and (4) Persons who do not fall within the aforesaid three categories would be permitted to apply for hawking licences under Section 420 of the Delhi Municipal Corporation Act, 1957 and their applications would be considered on merit for permission to hawk -- not squat -- by moving in specified areas with their goods on their heads or on cycles. They will be entitled to hawk with their goods anywhere in the zone in respect of which they have been granted a licence. However, such permission will be subject to any restrictions that may be imposed by the residential associations of different colonies."

24. In the meantime, the writ petition

No.1699/87 (Gainda Ram and others vs. MCD)

was disposed of by this Court by judgment

24 and order dated 12th May 1993 [(1993) 3 SCC

178].

25. Ultimately, the Thareja Committee examined

5627 claims in great detail and passed

detailed order in every case and in its

final report found that 761 out of 5627

persons were entitled for allotment of

sites and it also found 12 cases of

hardship. The said Committee also

identified 977 sites for squatting in NDMC

area.

26. Those who were aggrieved by the orders of

the Thareja Committee filed IAs before this

Court. As many as 130 IAs were filed before

this Hon'ble Court questioning various

orders of Thareja Committee.

27. In the meantime, another judgment in the

name of Sodan Singh vs. NDMC and others,

25 (1998) 2 SCC 727 was delivered which was in

continuation of its two earlier judgments

concerning the hawkers/squatters in the

public streets in NDMC area. The Court

considered the report of the Thareja

Committee and came to the conclusion that

occupation and places of eligible

squatters, as decided by the Thareja

Committee, is only tentative. However, the

Court accepted the procedure recommended by

the Thareja Committee and also accepted its

recommendation about payment of arrears of

dues towards Tehbazari and also noted its

recommendation that in case of failure to

pay such dues the claimant is not entitled

to the benefit under the scheme. The Court

directed certain procedures to be followed

for the purpose of making final allotment

of sites. One of them is issuance of public

notice for allotment of sites, the other

procedure is for payment of arrears of

26 Tehbazari. The Court also prescribed a cut-

off date for filing of application and

further directed notice of hearing to the

petitioners. The Court also held that the

right of the traders to change their trade

is subject to reasonable restrictions under

Article 19(6).

28. The Court thereafter nominated another

Judicial Officer Shri V.C. Chaturvedi to

undertake various duties and functions

enumerated in its order and in paragraph 52

page 741 of the report gave the summary of

procedure to be followed by the Chaturvedi

Committee, which are set out:

1. Shri Chaturvedi Committee (sole member) shall issue public notice in an English and a Hindi newspaper (expenses to be borne by the NDMC) within 15 days from today permitting the eligible claimants so found eligible by the Thareja Committee to submit their applications in Part I containing options in regard to the identified places and sizes (whether 6' x 4' or 4' x 3') in the particular zone to which these claims belong. The public notice in the newspaper will state that the details regarding the available sites 27 and their location and size is put up on the notice boards of the NDMC at various places, whose addresses are given. The notice will also require the claimants to state in Part II of their applications the details as to payment of Tehbazari charges due after 1-1-1990 and if there are or not any arrears as on date. The notice will also be put up in the various offices of the NDMC within the abovesaid period. The notice in NDMC office will also give a detailed list of the places available for squatting/hawking and stating whether it is a kiosk/stall or a place for mere vending on Tehbazari basis as decided by the Thareja Committee and indicating their sizes (6' x 4' or 4' x 3').

2. The eligible claimants will be given 3 weeks' time to file in Part I of their application their three options, indicating the zone concerned, their seniority as decided by the Thareja Committee, stating whether they come under any reservation category, the type of trade they have been trading in or the new trade for which they have applied to the NDMC and such other particulars as may be called for or relevant. In Part II the eligible claimants shall specify if they have made payments of Tehbazari arrears due for the period after 1-1-1990 and if there are any arrears as on date.

3. After receipt of the claims, the Committee shall issue notice to the parties concerned and the NDMC in regard to each of the places at which squatting/hawking is permitted as per the Thareja Committee Report and decide on the basis of seniority and reservation, the size of place and such other relevant material as may be placed before the Committee, as to who should be allotted what place. The Committee shall fix up dates of hearing by issuing registered A.D. notices to the parties concerned.

28 (The expenditure in this behalf shall be borne by the NDMC.) The Committee shall give an opportunity of being heard and pass reasoned orders and its decisions shall be final and shall not be questioned before any other authority, tribunal, court, nor the High Court nor in this Court.

4. It shall however be open to Shri Chaturvedi to obtain, if necessary, such directions or clarifications from this Court by way of filing IAs in this SLP, even though it is now disposed of.

5. The claimants will be permitted to appear before the Chaturvedi Committee either in person or through their counsel.

6. In case it is decided by the Chaturvedi Committee after the hearing of the case in Part II that any eligible claimant is in arrears of Tehbazari dues for any period after 1-1-1990 then the said Committee shall fix a date before which the arrears have to be paid and informing that if the amount is not paid by that date, the claimant will lose his claim for the kiosk/stall or for the place. In case the claimant defaults in payment by such date fixed and the claimant's rights cease as stated above, the Chaturvedi Committee will consider if the vacancy can be allotted to any other claimant already declared eligible by the Thareja Committee.

7. In case any of the places found eligible for kiosks/stalls by the Thareja Committee are not accepted by the Urban Arts Commission or the Archaeological Survey of India and the Department of Archaeology of the Government of N.C.T., the said places meant for kiosks/stalls shall be available for Tehbazari and the 29 Chaturvedi Committee shall pass appropriate orders of allotment on that basis. As and when the abovesaid authorities inform the NDMC that the places earmarked for kiosks/stalls are not acceptable for that purpose, the NDMC shall inform the Chaturvedi Committee about the said decision. (We have already observed that pending construction of kiosk/stall the claimant tentatively allotted the place or other person authorisedly using the place for vending on Tehbazari, shall continue. We also said unauthorised persons vending at these places be evicted by the NDMC forthwith.)

For the purpose of obtaining clearance for the said authority, the NDMC is granted time up to 30-6-1998 and for construction of the kiosks/stalls up to 31-10-1998.

8. In regard to eviction of unauthorised squatters or other persons using the places identified by the Thareja Committee the NDMC has undertaken to have them evicted forthwith and in case this is not done, it will be open to the Chaturvedi Committee to bring it to the notice of this Court for appropriate orders, as stated earlier.

9. The NDMC in general and the Director of Estates and the Director of Enforcement in particular will help and implement the decisions, directions or orders of Shri V.C. Chaturvedi. The NDMC shall also provide the other infrastructure to Shri Chaturvedi as stated in the main body of this order and pay his remuneration (in regard to which we are passing separate orders in this SLP).

10. The decisions of the Chaturvedi Committee both on the question of allotment of the kiosks/stalls or the

30 sites for Tehbazari and also as to quantum of arrears of Tehbazari shall be final as indicated in the body of this order and shall not be questioned either by the claimants or the NDMC before any authority, tribunal, court of law, the High Court or in this Court. No petition shall be registered in this behalf by the above bodies. We have only permitted the Chaturvedi Committee to file IAs in the appeal seeking any direction or clarification and none others. So far as orders of NDMC in regard to change of trade, it is open to the affected parties to resort to all appropriate remedies. We have so permitted Shri Chaturvedi to move this Court in certain respects.

29. Again the matter came before this Court in

IA No.394 in I.A. No.356 in WP (Civil)

No.1699/1987 (Sudhir Madan and others vs.

Municipal Corporation of Delhi and others).

In that matter the Court on 03.03.2006

observed that it was not possible to look

into each individual grievance and the

proceeding being a Public Interest

Litigation, the Court was to provide

guidelines consistent with the public

interest so that the roads, streets, paths,

31 parks etc. are not occupied by unauthorised

hawkers. The Court tried to balance between

the hawkers' right to hawk on the streets

and the right of the pedestrians, who were

larger in number to use the streets. The

Court, therefore, held that if it was

consistent with the rights of the citizens

to provide any space to the hawkers, then

that could be done by the authorities. The

Court directed the authorities to frame a

scheme keeping all these factors in mind,

and also bearing in mind the National

Policy on Urban Street Vendors, 2004

(hereinafter "2004 Policy").

30. Pursuant to such orders, NDMC and MCD

framed schemes for hawkers and squatters

following the 2004 Policy. Thereafter, the

matter was taken up by this Court from time

to time, wherein it was discussed and

certain modifications were suggested, which

32 subsequently were incorporated in the

scheme.

31. On 17.05.2007 this Court rejected the

prayer of the hawkers to re-identify the

site relying upon the orders dated

06.11.2000 passed in Ramesh Shah vs. MCD

and others (IA No. 332-333 in WP (Civil)

No. 1699/1987), while at the same time

approving the schemes framed by the NDMC

and the MCD.

32. By the order dated 17.05.2007 the municipal

authorities were directed to implement the

scheme as approved by the Court. Since the

NDMC area had three legislative

constituencies, this Court accordingly

directed the setting up of three Zonal

Vending Committees as per the scheme

prepared by the NDMC. Thereafter the Court

vide its order dated 23.01.2008 asked NDMC

33 and MCD to file status reports about the

implementation of the scheme. Pursuant to

the direction of this Court by order dated

08.05.2008, Mrs. Sukhvinder Kaur, a member

of the Delhi Higher Judicial Services was

nominated by the High Court as the

Presiding Officer of the Zonal Vending

Committees in NDMC area.

33. The main function of the Vending Committees

was to verify the vending sites and hawking

zones in the NDMC area. Its other function

was to scrutinize application for allotment

of the sites.

34. Both, the NDMC and MCD, are statutory

bodies under The New Delhi Municipal

Council Act, 1994 (hereinafter, `NDMC Act')

and The Delhi Municipal Corporation Act,

1957 (hereinafter `DMC Act') respectively.

34 Both the acts are parliamentary

legislations.

35. MCD was established under Section 3 of the

Act as a body corporate composing of

Councillors. Under DMC Act a public street

means a street which vests in the

Corporation as a public street or the soil

below, the surface of which vests in the

Corporation and which under the provision

of the Act becomes or is declared to be a

public street (See Section 2(44) of the

Act).

36. All public streets vest in the Corporation

under Section 298 of the Act. Section 42 of

the Act enumerates the obligatory functions

of the Corporation, one of which is the

removal of obstructions and projections in

or upon the streets, bridges and other

public places [See Section 42(p)].

35

37. Under Section 320(1) of the Act there is a

clear mandate that no person shall, except

with the permission of the Commissioner,

and on payment of such fee as he or she, in

each case, thinks fit, place or deposit

upon any street or upon any open channel,

drain or well in any street or upon any

public place in stall, chair, bench, box,

ladder, bale or other things whatsoever so

as to form an obstruction thereto and

encroachment thereon. Section 322 of the

Act also empowers Commissioner to remove

any stall, chair, bench, box, ladder, bale

or anything whatsoever placed, deposited or

projected in, upon, from or to any place in

the street. If it has been placed in

contravention of the Act, the Commissioner

can remove any article hawked or exposed

for sale on any public street or in any

other place in contravention of this Act

36 along with any vehicle, package or box or

any other thing in or on which such article

is placed.

38. Under Section 481 of the said Act, the

Corporation may frame bye-laws relating to

permission, regulation or prohibition of

use or occupation of any street or place by

itinerant vendors/hawkers or by any person,

for the sale of articles or the exercise of

any calling or the sitting of any booth or

stall and make regulation for fees

chargeable for such occupation. (See the

provision of Section 481E(5) of the Act)

39. Under the NDMC Act almost similar

provisions are there. Definition of public

street under Section 2(39) of NDMC Act is

virtually the same as the definition of

public street under Section 2(44) of the

DMC Act. Similarly under Section 3 of the

NDMC Act, NDMC has been formed as a body

37 corporate having perpetual succession and a

common seal. NDMC is also equally

empowered to remove obstructions and

projections in and upon the streets,

bridges and other public places. In fact

it is one of the obligatory functions of

NDMC.

40. Under Section 202 of the NDMC Act all

public streets vest in the Council. The

NDMC Act also contains similar provisions

prohibiting erection of structures/fixtures

which causes obstructions in the street.

(See Section 224. Sections 225 and 226 of

NDMC have been referred to already).

41. The NDMC is also authorized to prevent any

nuisance in any public street or public

place, or picketing of animals or

collection of carts, displacement, damaging

38 or making any alteration to the pavement,

water-drain etc. without any authority.

(See Section 308(viii) of the Act.

Reference to Section 330 of the Act has

been already made)

42. It has been held by the Constitution Bench

of this Court in Sodan Singh (supra) 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.

43. 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). Such law can impose

39 reasonable restrictions. The relevant

constitutional provisions are set out:-

"19(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, -

(i)_the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise."

44. 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 authorizes

that nothing in sub-clause (g) of Article

19(1) shall affect the operation of

existing law in so far it imposes

reasonable restrictions, in the interest of

40 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).

45. 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.

46. 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.

41

47. In Bijoe Emmanuel and others vs. State of

Kerala and others (AIR 1987 SC 748) this

Court held, "the law is now well settled

that any law which may be made under

clauses (2) to (6) of Article 19 to

regulate the exercise of the right to the

freedoms guaranteed by Article 19(1)(a) to

(e) and (g) must be a law having statutory

force and not a mere executive or

departmental instructions." (para 15 page

753)

48. In coming to the aforesaid formulation in

Bijoe Emmanuel (supra) this Court relied on

two Constitution Bench decisions of this

Court in the case of Kameshwar Prasad and

others vs. State of Bihar and another (AIR

1962 SC 1166) and another Constitution

Bench decision of this Court in Kharak

42 Singh vs. State of U.P. and others (AIR

1963 SC 1295).

49. In the instant case, this Court has

discussed the legal provisions in the NDMC

and DMC Act which seek to control the

fundamental right of the petitioners to

carry on their business of hawking.

50. As stated earlier the scheme which was

framed by NDMC for regulation of squatting

and hawking in the NDMC areas was on the

basis of guidelines given by this Court in

its judgment dated 30th August 1989 in Sodan

Singh's case. In that scheme NDMC has

divided its area into four zones and some

of the zones have been made non-hawking

zones. From time to time the said scheme

has been modified by the orders passed by

this Court. This Court also finds that

subsequently another scheme was prepared by

the NDMC pursuant to the 2004 Policy. In

43 the said scheme the NDMC has referred to

Sections 225 and 330 of the NDMC Act.

Section 225 of the Act permits squatting

only on the permission given by the

Chairman and on payment of such fees in

each case as a Chairman may think fit.

Section 330 of the Act provides for licence

for hawking articles etc. The said Section

330 authorizes the NDMC to prevent hawking

unless there is a licence to that effect

granted by the Chairperson.

51. As per Section 226 of the NDMC, Chairperson

may without notice cause removal of

articles kept in the public street and

Section 369(2) of the Act provides for

punishment for contravention of the

provision of the Section 225(1).

52. The 2004 Policy provides for setting up of

a vending committee which may consist of

representatives of (a) Municipal Authority,

44

(b) Traffic and Local Police, (c) Public

and owning authority, (d) Associations of

traders, residents and also of street

vendors both static and mobile. The

function of such vending committing shall

include:

"(i) Demarcation of vending and non-vending areas;

(ii) Provision and identification of space for squatting and areas for hawking.

Provisions for space may include temporary designations as Vendor markets (e.g. as weekly markets) whose use at other time may be different (e.g. Public Parks, Parking lots) etc.;

(iii) Timing restrictions on the urban vending. It should correspond to needs of ensuring non-congestion of public spaces;

(iv) Public hygiene and cleanliness;

(v) Ensure continuation and upgradation of weekly markets;

(vi) Quantitative norms i.e. where to allow, how many squatters or persons;

(vii) Qualitative guidelines:- This has to include

- Provision for solid waste disposals,

- Public toilets to maintain cleanliness;

- Aesthetic design of mobile stalls/push carts; - Provision for electricity; - Provision for protective cover to protect their wares as well as 45

themselves from heat, rain, dust etc;

(viii) Regulatory Process;

(ix) Registration system;

(x) Corrective mechanism against defiance by vendors;

(xi) Collection of revenues and

(xii) Monitoring mechanism."

53. The 2004 Policy has also referred to the

Master Plan of Delhi, 2021 which provides

for informal sector in trade in the planned

development of various zones. In the said

policy, there is also a division between

vending and non-vending areas and it is

made clear that no hawking licence shall be

issued in non-vending areas. The timing and

the day of hawking was also to be regulated

as per the suggestions of Residents Welfare

Association (RWA).

54. Neither the said policy nor the scheme

framed by the NDMC can be called law,

except of course the provisions of Sections

225, 226, 330 and 369(2) of NDMC Act

mentioned hereinabove.

46

55. Section 388 of the NDMC Act empowers the

NDMC to frame bye-laws. This power is

categorized under different clauses of sub-

section 1 of Section 388. Under clause (D)

of the said sub-section there is a

provision for making bye-laws relating to

the streets. Section 388(1)(D)(5) of NDMC

Act provides as follows:

"388(1)(D)(5) the permission, regulation or prohibition or use or occupation of any street or place by it, itinerant vendors or hawkers or by any person for the sale of articles or the exercise of any calling or the setting up of any booth or stall and the fees chargeable for such occupation;"

56. The bye-laws have to be laid before

Parliament under Section 389 of the said

Act. These bye-laws may have the status of

subordinate or delegated legislation.

Penalty has been provided for breach of

bye-laws under Section 390 of the Act.

47

57. It does not appear that the NDMC has made

any bye-law under Section 388 of the NDMC

Act so as to regulate the fundamental right

of the hawkers to hawk or squat on the

streets of Delhi. The schemes which have

been framed under the direction of this

Court or the 2004 Policy which has been

framed by the Government, cannot said to be

framed under the said power to frame bye-

laws and do not have the status of law or

even subordinate legislation.

58. The Master Plan of Delhi, 2021 however,

provides for the accommodation of the

informal sector wherein it states for

suitable public conveniences and solid

waste disposal and arrangements apart from

formulation of guidelines for schemes which

would include hawking and no hawking zones.

The Master Plan also seeks to define the

role and responsibility of NGOs along with

48 the specific obligation of the hawkers

towards society for maintenance of law and

order within the hawking zones and weekly

markets. There was also provision for

informal bazaar in new urban areas.

59. Subsequent to the 2004 Policy a new

National Policy on Urban Street Vendors,

2009 (hereinafter "2009 Policy") was framed

on 17th June 2009. The most important part

of the 2009 Policy is that it recognizes

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 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.

49

60. 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 license 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;".

61. The Policy, therefore, seeks to

institutionalize a part of the urban street

vending through legislation. The objects of

the policy are as follows:

3.1 Overarching Objective

The overarching objective to be achieved through this Policy is:

50 To provide for and promote a supportive environment for the vast mass of urban street vendors to carry out their vocation while at the same time insuring that their vending activities do not lead to overcrowding and unsanitary conditions in public spaces and streets.

3.2 Specific Objectives

This Policy aims to develop a legal framework through a model law on street vending which can be adopted by States/Union Territories with suitable modifications to take into account their geographical/local conditions. The specific objectives of this Policy arc elaborated as follows:

a) Legal Status:

To give street vendors a legal status by formulating an appropriate law and thereby providing for legitimate vending/hawking zones in city/town master or development plans including zonal, local and layout plans and ensuring their enforcement;

b) Civic Facilities:

To provide civic facilities for appropriate use of identified spaces as vending/hawking zones, vendors' markets or vending areas in accordance with city/town master plans including zonal, local and layout plans;

c) Transparent Regulation:

51 To eschew imposing numerical limits on access to public spaces by discretionary licenses, and instead moving to nominal fee-based regulation of access, where previous occupancy of space by the street vendors determines the allocation of space or creating new informal sector markets where space access is on a temporary turn- by-turn basis. All allotments of space, whether permanent or temporary should be based on payment of a prescribed fee fixed by the local authority on the recommendations of the Town Vending Committee to be constituted under this policy;

d) Organization of Vendors:

To promote, where necessary, organizations of street vendors e.g. unions/co- operatives/associations and other forms of organizations to facilitate their collective empowerment;

e) Participative Processes:

To set up participatory processes that involve firstly, local authority, planning authority and police; secondly, associations of street vendors; thirdly, resident welfare associations and fourthly, other civil society organisations such as NGOs, representatives of professional groups (such as lawyers, doctors, town planners, architects etc.), representatives of trade and commerce, representatives of scheduled banks and eminent citizens;

52 f) Self-Regulation:

To promote norms of civic discipline by institutionalizing mechanisms of self- management and self-regulation in matters relating to hygiene, including waste disposal etc. amongst street vendors both in the individually allotted areas as well as vending zones/clusters with collective responsibility for the entire vending zone/cluster; and

g) Promotional Measures:

To promote access of street vendors to such services as credit, skill development, housing, social security and capacity building. For such promotion, the services of Self Help Groups (SHGs)/Co- operatives/ Federations/Micro Finance Institutions (MFIs), Training Institutes etc. should be encouraged.

62. A law has been enacted under the name and

style of a National Capital Territory of

Delhi Laws (Special Provisions) Second Act

2009 on 23rd December 2009. This law makes

special provisions for the National Capital

Territory of Delhi for a period up to 31st

December 2010. It is, therefore, clear that

the said law is for temporary period. From

the preamble of the law, it will appear 53 that whereas a strategy and a scheme has

been prepared by the local authorities in

the National Capital Territory of Delhi for

regulation of urban street vendors in

accordance with national policy for urban

street vendors and the Master Plan for

Delhi, 2021 and it has also been provided

that whereas more time is required for

orderly implementation of the scheme

regarding hawkers and urban street vendors

and for regulation of unauthorized

colonies, the said law shall have effect

only up to 31st December 2010. Section

3(1)(b) of the said Act provides as

follows:

"3(1)(b) scheme and orderly arrangements for regulation of urban street vendors in consonance with the national policy for urban street vendors and hawkers as provided in the Master Plan of Delhi, 2021".

63. There is a Bill called a Model Street

Vendors (Protection of Livelihood and

54 Regulation of Street Vending) Bill, 2009 by

the Government of India, Ministry of

Housing and Urban Poverty Alleviation. From

the preamble and the long title of the Bill

it appears that the Bill is to provide for

protection of livelihood of urban street

vendors and to regulate street vending and

for matters connected therewith. Now if

the said Bill is enacted in the present

form, the Bill then prima facie recognizes

the rights of hawkers and vendors under

Article 21 of the Constitution since it

seeks to protect their livelihood.

64. 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

55 street vending is part of fundamental right

under Article 19(1)(g).

65. 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 provision

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.

66. Certain broad facts cannot be lost sight

of. Whatever power this Court may have had,

56 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 a 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

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

57 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 unorganized poor sector in our society.

Therefore, structured regulation and

legislation is urgently necessary to

control and regulate fundamental right of

hawking of these vendors and hawkers.

67. 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

58 by 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.

68. This Court, therefore, disposes of this

writ petition and all the IAs filed with

direction that the problem of hawking and

street vending may be regulated by the

present schemes framed by NDMC and MCD up

to 30th June, 2011. Within that time, the

appropriate Government is to legislate and

bring out the law to regulate hawking and

hawkers' fundamental right.

59

69. Till such time the grievances of the

hawkers/vendors may be redressed by the

internal dispute redressal mechanisms

provided in the schemes.

70. In the affidavit filed by the MCD, they

have set out the Dispute Redressal

Mechanism as follows:

"a) First Level: 12 Zonal Vending Committees (one in every Zone); headed by Deputy Commissioner of the Zone.

b) Second Level: In case of dispute between the allottee of Tehbazari site and the MCD, the Zonal Vending Committees are headed by the Presiding Officer (in-

Service Addl. Distt. & Sessions Judge) Presently Ms. Rekha Rani.

c) Third Level: Appellate Authority headed by a Retd. Judge of the Delhi High Court-presently Shri J.P. Singh."

71. It has also been stated in the affidavit

that in case any party is aggrieved by the

decision pertaining to above levels, he or

she is free to file an appeal to the higher

level. Such level of Zonal Vending

Committee is headed by Deputy Commissioner

of the concerned zone. If any party is 60 aggrieved by the order/decision of the said

Zonal Vending Committee, he or she can

prefer an appeal with the Zonal Vending

Committee headed by the Presiding Officer

(in-Service Additional District and

Sessions Judge) and thereafter to the

Appellate Authority. In the said affidavit,

which has been filed by Shri K.S. Mehra,

Commissioner of MCD, it has been stated

that the MCD undertakes that in case the

decisions by any of the committees are not

acceptable to the department, the MCD would

file an appeal to the next level. However,

where no appeal is filed, the decision at

the particular level would be final. It has

also been stated in the affidavit by the

MCD that if there is a need for change of

any clause or term of the scheme, the MCD

may do so in terms of the order of this

Court.

61

72. In so far as NDMC is concerned they have

also filed an affidavit, affirmed by Shri

Parimal Rai, Chairman, NDMC. In that

affidavit, they have disclosed another

affidavit which was filed by Shri Parimal

Rai in this writ petition [W.P.(C) No.1699

of 1987], wherein they have given the

details of the Dispute Redressal Mechanism

in paragraph 10, which is set out as

follows:-

"NDMC proposes to implement Adjudicating mechanism in its scheme in a Three-Tier system like the one in MCD Scheme. Proposed Three-Tier system is Three Vending Sub Committees & Vending Committee main and one Appellate Authority over and above the Vending Sub-Committees and Main Vending Committee. The details of this proposed three-tier system is as under:

(i) Vending Sub-Committee (Site of Spaces)

(ii) Vending Sub-Committee (Health and Hygiene)

(iii) Vending sub-Committee (Enforcement)

Functions and compositions of these sub-

committees are as under.

62 A. Sites & Spaces:-

(a) Functions :-

The sub-committee shall be responsible for recommending to Vending Committee (Main) on the following :-

(i) Identifying spaces of squatting and the areas for hawking in the vending areas specified in para-

4.2.1 of the scheme. These identification shall be as per the paras-3.3 of the scheme.

While considering the spaces near the schools, the representative of the Director (Education) shall be co-opted. While determining the spaces near the parks, representative of Director (Horticulture) shall be co-opted. While determining the spaces near the parks, representative of Director (Horticulture) shall be co-

opted. Where spaces are to be selected near Hospitals, representative of the Hospital to be included.

(ii) To identify weekly or evening markets.

(iii) To begin with the Committee shall restrict itself to the sites already earlier approved by the Supreme Court excluding the sites deleted by orders of Court or due to security reasons from Parliament Complex and certain areas being declared as non-vending areas and identifying spaces on these sites.

63

(iv) Timings restrictions to ensure that there is no congestion in public places.

(v) Quantitative norms i.e. where to allow and how many squatters or persons at each site.

(b) Composition:-

This sub-Committee shall consist of the following members -

7 Director (Vending Committee).

7 A representative of the MLA of New Delhi Assembly Constituency/Delhi Cantonment Constituency.

7 A representative of the traffic police/local police for the NDMC area.

7 A representative of the Market Association of the concerned market for which squatting sites are to be identified.

7 A representative of the Resident Welfare Association where the vending sites/hawking sites are to be decided in the residential colonies.

7 A representative of the authorized hawkers/squatters from the market for which the sites are being identified.

7 A representative of the Road Division of the NDMC where the sites are to be selected on footpath and the roads.

7 Convenor of the sub-Committee shall be Joint Director (Vending Committee) or any 64 other officer of NDMC appointed by Chairperson.

This Committee shall be headed by Director (Vending Committee) {Selection of sites & spaces}.

B. Vending sub-Committee (Health and Hygiene):

(a) Functions:-

The sub-Committee shall recommend to the Vending Committee on the following:-

(i) Issue of fresh licence for hawking including for ice-cream and water trolleys.

(ii) Recommend cancellation of hawking licence and Tehbazari permission of those who violate terms of licence or do not confirm to Health & Hygiene.

(iii) To ensure public hygiene and cleanliness.

(iv) Qualitative guidelines-

- Provision of solid waste disposal from squatting sites.

- Public toilet to maintain cleanliness

- Provision for electricity, if the same is to be provided.

- Approving protective covers to protect the wares and squatters from the rain, heat, dust etc.

- Amount of fee to be collected for disposal of solid waste from sites and for user of toilet facilities. 65

(v) Issue of photo identity cards to hawkers.

(vi) Any other function assigned by Vending Committee [Main] or Chairperson.

(b) Composition:-

This Vending sub-Committee shall be headed by the Medical Officer of Health. Its Members shall be -

(i) Representative of Chief Engineer (Electrical).

(ii) Representative of Chief Engineer (Civil).

(iii) A Representatives of Association of the Market for which hawking licence or qualitative guidelines are being considered.

(iv) A representative of the authorized squatters of the market for which hawking licence or qualitative guidelines are being considered.

(v) Convenor of the Sub-Committee shall be Jt. Director (Vending Committee).

The Committee shall submit its recommendations on qualitative guidelines by 30.09.2010 to Vending Committee (Main).

C. Vending sub-Committee (Enforcement) :

(a) Functions

66

(i) Registration of squatters covered by Clause-4 & 5 after police verification.

(ii) Collection of registration charges fixed by the Chairperson on the recommendations of the Vending Committee.

(iii) Regulatory process,

registration system. Issue of photo Identity Cards.

(iv) Collection of fees as may be fixed by the Chairperson on the recommendations of the Vending Committee.

(v) Monitoring mechanism.

(vi) Other matters as may be

assigned by Vending Committee or Chairperson.

(vii) To recommend cancellation of permission to approved squatters.

(viii) To issue Tehbazari permission, on approval of recommendation of Vending Committee by Chairperson.

(ix) To process cases of transfer on legal heir basis.

(x) To remove squatters from non- vending areas and remove unauthorized squatter from vending areas and take action

67 U/s-226 of the New Delhi Municipal Council Act, 1994.

(b) Composition:-

The Committee shall be headed by Director (Enforcement) and shall consist of representative of Accounts, Chief Security Officer and local police, if necessary. Convener of the Committee shall be Joint Director, Vending Committee or any other officer appointed by the Chairperson.

Chairperson can also add members in this sub-Committee. This Committee shall complete its functions of Registration by 31st October 2010."

73. In paragraph 12 of the affidavit it has

been stated that there shall be an

Appellate Authority which shall attend to

the redressal of grievances of squatters,

hawkers, traders, residents or any other

person by hearing appeals against the

decision of the Vending Committee (Main).

Paragraph 12 of that affidavit is set out

below:-

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"There shall be an Appellate Authority.

On the forwarding of petitions received by the Chairperson, this Authority shall attend to redressal of grievances of squatters, hawkers, traders, residents or any other person. The Authority shall also hear appeals against the decision of Vending Committee (Main). Decisions of this Authority unless challenged before a Higher Forum or in any Competent Court, shall be final. This Authority shall be initially headed by a person appointed by the Chairperson having at least 10 years legal or judicial background. There can be more than one member in this Authority."

74. In the said affidavit, which was affirmed

before this Court on 24th August, 2010 it

has been stated that NDMC shall comply with

the orders which would be passed by the

adjudicatory mechanism contemplated in the

scheme and which has been approved by this

Court for the NDMC area, unless such orders

are made subject matter of challenge before

a higher forum or in any other competent

Court.

75. In view of such schemes, the hawkers,

squatters and vendors must abide by the

69 Dispute Redressal scheme mentioned above.

There should not be any direct approach to

this Court by way of fresh petition or IAs,

bypassing the Dispute Redressal Mechanism

provided in the scheme.

76. However, before 30th June, 2011, the

appropriate Government is to enact a law on

the basis of the Bill mentioned above or on

the basis of any amendment thereof so that

the hawkers may precisely know the contours

of their rights.

77. This Court is giving this direction in

exercise of its jurisdiction to protect the

fundamental right of the citizens. The

hawkers' and squatters' or vendors' right

to carry on hawking has been recognized as

fundamental right under Article 19(1)(g).

At the same time the right of the commuters

to move freely and use the roads without

70 any impediment is also a fundamental right

under Article 19(1)(d). These two

apparently conflicting rights must be

harmonized 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.

78. 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 30th June, 2011 is given.

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79. The fundamental right of the hawkers, just

because they are poor and unorganized,

cannot be left in a state of limbo nor can

it left to be decided by the varying

standards of a scheme which changes from

time to time under orders of this Court.

With the aforesaid observations and

directions the writ petition and all the

IAs are disposed of.

80. No order as to costs.

.....................J. (G.S. SINGHVI)

.....................J. (ASOK KUMAR GANGULY) New Delhi October 8, 2010

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