The Court dismissed the petitioner's writ petition as not maintainable. It held that the petition was barred by the principles of res judicata as it sought the same relief based on the same cause of action as an earlier petition which the petitioner had voluntarily withdrawn without reserving her right to re-file.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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PHOOLO DEV @ PHOOLWARI ..... Petitioner Through: Mr. Ramesh Kumar Mishra, Advocate versus NEW DELHI MUNICIPAL COUNCIL & ORS .....Respondents Through: Ms. Kriti Sinha, Advocate for Mr.Sri Harsha Peechara, ASC for respondent No.1-NDMC Mr.Madhav Nanda, Advocate for respondent No.2 Mr. Anand V. Khatri, Advocate for respondent No.3 with SI Rakesh
CORAM: HON'BLE MS. JUSTICE HIMA KOHLI HON'BLE MS. JUSTICE ASHA MENON
O R D E R % 16.07.2019
“a. Issue any appropriate writ, order or direction directing the Respondent no. 1 and 3 not to dispossess the Petition from her vending site at Janpath Lane, Telephone Box near Gupta Pan Bhandar, Behind Bank of Baroda building, Janpath, New Delhi, on the premise of the order dated 17.08.2017 passed by this Hon’ble Court in W.P.(C) 11519/2016 or any other order passed by this Hon’ble Court for implementation of order dated 17.08.2017 and/or
b. Issue a writ of mandamus or any other appropriate writ,
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order or direction directing the respondent not to interfere with the vending activities of the petitioner from the aforesaid vending place till the newly constituted town vending committee completes the process of survey/identification and registration process of street vendors under section 3 and 4 of the street vendors’ act, 2014);
c. Recall order dated 17.08.2017 passed by this Hon’ble Court in W.P. (C) 11513/2016.
d. Pass any other order(s)/direction(s) as this Hon’ble Court may deem fit and appropriate in the facts and circumstances of the present case.”
“The present writ petition has been filed by the petitioner under Articles 226 and 19 (1) (g) of the Constitution of India. The petitioner claims to be a regular street vendor and squatting at the Backside of Bank of Baroda, in front of Telephone Junction Box, Janpath Market, Janpath Lane, New Delhi in the NDMC area since 1980 and selling readymade items. Prayers made in the writ petition are as under:
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A. To allow the petitioner to operate her trade at her squatting site i.e. Backside of Bank of Baroda, in front of Telephone Junction Box, Janpath Market, Janpath Lane, New Delhi till the certificate of vending has been issued to petitioner as per the provisions of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014.
B. To direct the respondents not to dispossess or obstruct or disturb the petitioner in carrying on her trade from her vending site i.e. Backside of Bank of Baroda, in front of Telephone Junction Box, Janpath Market, Janpath Lane, New Delhi in terms of Article 19 (1) (g) of the Constitution of India as well as in terms of the provisions of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 and the orders passed by this Court from time to time; and
C. To direct the respondents to collect the CCTV footage of all the CCTV cameras installed nearby to the squatting site i.e. Backside of Bank of Baroda, in front of Telephone Junction Box, Janpath Market, Janpath Lane, New Delhi of the petitioner, in order to clarify the real and true facts about the long term squatting activity of the petitioner herein.
Counsel for the petitioner submits that he has instructions to withdraw this writ petition in view of the stand taken by the NDMC in para 8 of the counter affidavit.
Accordingly, the writ petition and C.M.2692/2018 are dismissed as not pressed.”
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prayer made in the earlier writ petition was entirely different from the one that has been made in this petition, which is for recalling the order dated 17.08.2017, passed in W.P.(C) 11513/2016 filed by one Mohan Kumar, impleaded as respondent No.2 herein.
“20. That on 12.1.18 the officials of NDMC/Respondent No.1 and Respondent No.2 again came to the squatting site of the Petitioner and started creating obstruction in the peaceful working of the petitioner. However the officials of the Respondent No.1/NDMC came to be said site of the Petitioner with police force and illegally removed the Petitioner on the pretext that said site belongs to one Sh. Mohan Kumar and said Mohan Kumar is having some order from this Hon’ble Court, despite the fact that said Mohan Kumar neither ever vend at the Janpath Market, Janpath Lane, Delhi nor at the squatting site of the Petitioner . The similar squatters who are squatting adjacent to the site of the Petitioner again tried to intervene or apprised the Respondents about the true and
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correct facts that said Mohan Kumar never ever vend in the Janpath Market or at the site of the Petitioner........”
21. The said Sh. Mohan Kumar has taken favourable orders from this Hon’ble Court while misleading and concealing the true facts from this Hon’ble Court as well as NDMC. It is imperative to mention here that previously on 08.02.2016 at around 48 squatters who are squatting at the Janpath Market, Janpath Lane, Delhi including Petitioner gave a joint written communication to the NDMC and Respondent no. 2 authenticating the factum of the said Mohan Kumar, Shamshudin and Ashok Anand that they never vend in the Mini Market Janpath Lane, Delhi while appending their respective signatures and the said letter has been duly received in the office of the Respondent no. 1/NDMC. The copies of letter dated 08.02.2016 addressed to Respondent No. 1 and letter addressed to Respondent No. 2 are annexed herewith as Annexure F (Colly) .”
(emphasis added)
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“favourable orders were granted to him” . In other words, essentially her stand was that the Court had been misled by the respondent no.2 in passing the order dated 17.08.2017 in W.P.(C) No.11519/2016. Therefore, not much would turn on non-mentioning of the said order specifically in the prayer clause of W.P.(C) No.614/2018.
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earlier writ petition filed by her for permission to operate from the site in question. If it is her stand that the order dated 17.08.2018 passed in W.P.(C) 11519/2016 filed by the respondent No.2 herein came to be passed due to some misrepresentations made by him and it ought to be recalled, then instead of withdrawing the petition, she should have pursued the same with vigour, more so when she had made specific averments on this aspect in paras 20 and 21 of the said petition. But for reasons best known to her, the petitioner elected to withdraw the said petition without reserving her right to re-agitate the same issue, as raised therein, in a subsequent petition. Interestingly, though the petitioner has a grievance that the respondent No.2 had failed to implead her in his petition, it transpires that she did the same at the time of filing the earlier petition. Respondent no.2 herein was not arrayed as a respondent in the said petition.
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petition that is based on the same cause of action subject matter of the earlier petition. The present petition is accordingly dismissed as not maintainable alongwith the pending applications.
HIMA KOHLI, J
ASHA MENON, J
JULY 16, 2019 s
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2 issues framed by the court
Whether a fresh writ petition is maintainable when the petitioner unilaterally withdrew an earlier petition seeking the same relief based on the same cause of action without reserving the right to re-
Whether the meritless, later assertion of fraud by a respondent in the body of the new petition cures the bar of res judicata raised by the withdrawn earlier petition.
Colour shows how this judgement treated each authority
A.V. Papayya Sastry & Ors. V Government of A.P. & OrsDistinguished¶46
A.V.Papayya Sastry & Ors V Government of A.P. & Ors (2007) 4 SCC 221 · Who else cites this
Phoolo Dev @ Phoolwari
New Delhi Municipal Council
Hima Kohli
Asha Menon
As recorded by the court registry
A petition under Article 226 of the Constitution asking a High Court to issue a writ against the State or a public authority in a civil matter.
Judgements on the same questions, provisions and authorities, from every court
