Dismissed

Shyam Kapoor and Ors. v. North Delhi Municipal Corporation and Ors.

Delhi HC11 Jul 2019W.P.(C)/7259/2019

Case brief

AI extract

What is this about?

Justice Hima Kohli and Justice Asha Menon disposed of a writ petition challenging a Circular issued by the North Delhi Municipal Corporation. The court refrained from deciding the merits of the squatters' claims, directing them instead to approach the Town Vending Committee (TVC) to verify their allotment rights. The petition was dismissed without quashing the Circular, which remains operative for

What did the court decide?

Petitioners directed to appear before Assistant Commissioner with documents to verify claims; 48-hour notice runs from receipt of verified site plans; petition disposed without quashing the impugned C

Shyam Kapoor and Ors. Vs North Delhi Municipal… — Writ and Judicial Review | Delhi HC (2019)

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$~5

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

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- W.P.(C) 7259/2019 & CM APPL. 30229-30230/2019

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SHYAM KAPOOR AND ORS. ..... Petitioner Through Mr. Rakesh Tikku, Senior Advocate with Mr. Yogesh Chhabra, Mr. Lokesh Bhardwaj, Advocates. versus NORTH DELHI MUNICIPAL CORPORATION AND ORS. ..... Respondent Through Mr. Sanjib Sen, Senior Advocate with Ms. Mini Pushkarna, Standing Counsel for Nr.DMC with Mr. Sayan Ray, Mr. Soumo Palit, Ms. Shiva Pandey, Advocates for Nr.DMC. Ms. Jyoti Taneja, Advocate for GNCTD / R4, R5 & R6. with Insp. Krishan Kumar, TI/KBC Traffic Circle, SI Ram Tirath, Pairvi Officer, Traffic.

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CORAM: HON'BLE MS. JUSTICE HIMA KOHLI HON'BLE MS. JUSTICE ASHA MENON

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O R D E R % 11.07.2019

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W.P.(C) 7259/2019 & CM APPL. 30229/2019

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The present petition has been filed by 13 petitioners praying inter alia for quashing a Circular dated 01.07.2019 issued by the respondent no. 1/ North Delhi Municipal Corporation (in short „Nr.DMC‟) stating inter alia that in view of the ongoing pedestrianisation project in and around Karol

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W.P. (C) 7259/2019 Page 1 of 9

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Bagh, a survey of the area was conducted on 26.06.2019 and it was observed that 54 tehbazari holders who were allotted squatting/hawking sites at places other than Ajmal Khan Road, were squatting at Ajmal Khan Road without any permission.

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We may note that the names of all the 13 petitioners herein find mention in the said Circular at serial nos.1, 5, 9, 15, 18, 22, 26, 27, 45, 46, 49, 51 and 52. All the 54 tehbazari holders, whose names have been listed in the Circular dated 01.07.2019, have been called upon by the Nr. D.M.C. to shift their tehbazari to the alternate sites allotted to them, as indicated in the last column of the tabulated statement, within 48 hours. Appended to the said Circular is a caveat that the list of squatters mentioned therein, is provisional and the tehbazaris mentioned therein are subject to final verification of original allotment letters along with the site numbers and other relevant documents such as Adhaar Card of the original allottee. 3. Mr. Tikku, learned Senior counsel appearing for the petitioners states that the main grievance raised in the petition is that the tabulated statement forming part of the Circular dated 01.07.2019 refers to allotted sites in column 3 which had in fact never materialized for the reason that none of the petitioners herein had moved from their squatting sites at Ajmal Khan Road to the said sites as MCD was not in a position to hand them over since they were not under their control. In support of the said submission, he refers to orders passed in W.P.(C) No.5277/2005 entitled “Sukhdev Singh & Anr. vs. M.C.D.” Pertinently, all the petitioners herein were not parties in the captioned petition and they have not filed orders of a similar nature that they claim have been passed in their favour on approaching the Court at the relevant time for relief. It is contended that the petitioners have been

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W.P. (C) 7259/2019 Page 2 of 9

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continuously squatting at Ajmal Khan Road and they have valid documents to prove their lawful tehbazaari rights on the said road.

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Per contra , Mr. Sanjib Sen, learned Senior Counsel appearing for the respondent No.1/Nr.DMC states that if the orders dated 25.05.2005, 31.08.2007 and 05.11.2007 passed in W.P. No.5277/2005 and relied on by the petitioners are carefully examined, it would be apparent that none of them specifically refers to Ajmal Khan Road but only refers to the Karol Bagh Zone. 5. Learned counsel for the respondent no.1/Nr.D.M.C.has also drawn our attention to the affidavit that was filed by the MCD in December, 2006 before the Supreme Court in W.P.(C) No.1699/1987 titled “ Gainda Ram and Ors. vs. MCD and Ors.” and points out that in the said affidavit, it was stated that vide an earlier order dated 14.11.2006, the Supreme Court had directed the MCD to prepare a final list of squatting/non-squatting and hawking/non-hawking areas under the jurisdiction of the MCD and on conducting such an exercise, a comprehensive list was prepared and filed with the said affidavit. He refers to the “List of zone wise squatting/nonsquatting and hawking /non-hawking Areas” under the jurisdiction of the MCD and states that in the Karol Bagh Zone, except for two specific sites on Ajmal Khan Road, all the main roads, major roads and areas in the Zone were declared as non-squatting areas. He further states that a public notice was issued by the MCD in December 2006 whereunder the public was informed that squatting and hawking will be allowed only in the approved squatting and hawking areas as mentioned in the list and the persons carrying on their business through squatting/hawking were called upon to clear from the non-squatting and non-hawking areas with immediate effect.

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W.P. (C) 7259/2019 Page 3 of 9

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From the submissions made above, we have reservations about the plea sought to be taken before us that all the 13 petitioners herein were in fact squatting on Ajmal Khan Road for a very long time but could not be relocated to the alternative sites at Dev Nagar consequent to the stand of MCD that the said sites were not under its control. As the documents in respect of each of the petitioners, in support of the submission made by the learned counsel for the petitioners have not been placed on record, we are not in a position to arrive at any definite conclusion in this regard. In any case, this aspect is beyond the scope of the present petition. It would be for the Town Vending Committee (TVC) to return appropriate findings after examining the relevant documents that may be placed before it in support of such claims. We are informed that the TVC of Karol Bagh Zone has been constituted very recently. It is open for the petitioners to approach the TVC with their respective claims for being examined and adjudicated upon in accordance with law.

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We may also note that the respondent No.1/Nr.DMC has filed copies of orders dated 03.05.2017, 16.08.2017, 13.03.2018, 26.04.2018 and 29.05.2018 passed in W.P.(C) No.5023/2015 entitled “Aardarshita Public Welfare Foundation (NGO) vs. Commissioner South Delhi Municipal Corporation & Ors.” to state that the Division Bench had made it clear that for proper utilisation of roads and footpath/pavements, squatting by unauthorised occupants should be stopped forthwith and limited to a bare minimum so that pavements can be used by the pedestrians. In the said petition, the Division Bench has been monitoring the extent of encroachment, particularly on Arya Samaj Road, Ajmal Khan Road, Green Park, Green Park Extension, Yusuf Sarai, Vikas Marg and the

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respondent/authorities have been directed from time to time to spell out the measures taken by them to remove encroachment on pavements in the said areas and ensure hindrance free movement of pedestrians. In the said matter, orders have been passed from time to time and Status Reports setting out the action taken have been filed by the civic authorities and the Delhi Police etc., A Co-ordination Committee has also been directed to be setup for suitable enforcement action to clear encroachments on roads.

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Another relevant order that learned counsel for the respondent no.1/Nr.D.M.C. has referred to is dated 05.10.2016, passed in W.P.(C) No.6130/2016 entitled “ Hawkers Adhikar Suraksha Samiti vs. Union of India & Ors.” wherein, the Division Bench had observed as follows :

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“29. Having regard to the fact that declaration of nonsquatting 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 the 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.”

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It is thus stated that it is in terms of a series of orders passed by the Supreme Court and the High Court over the years that the civic authorities, in co-ordination with the local police, have been taking concerted steps and regular drives to remove encroachment in non-hawking and non-squatting zones, and Ajmal Khan Road being one such road, the petitioners cannot claim any vested right to continue squatting at the said site.

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W.P. (C) 7259/2019 Page 5 of 9

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Learned counsel for the respondent no.1/Nr.D.M.C. also refers to the provisions of Section 12 of the Street Vendors (Protection of Livelihood and Regulations of Street Vending) Act, 2014 that stipulates that where any area or space has been earmarked as a no-vending zone, no street vendor can carry out any vending activity in that zone. He thus states that there is no impediment for the respondent no.1/Nr.D.M.C. to direct 54 squatters including the 13 petitioners herein to shift from Ajmal Khan Road, for implementing the ongoing pedestrianisation project.

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Mr. Tikku, learned Senior Counsel appearing for the petitioners has disputed the submissions made on behalf of the respondent no.1/Nr.DMC and asserts that Ajmal Khan Road has not been declared as a nonhawking/non-vending zone. However, we find that no document has been filed with the writ petition to substantiate the said submission. 12. It is reiterated that the TVC is in place, and since we have been informed during the course of arguments that the petitioners propose to approach the TVC with all the relevant documents to establish their claim to squat at Ajmal Khan Road, we are deliberately refraining from making any observations on merits on their respective claims to squat at Ajmal Khan Road. It shall be for them to satisfy the TVC in this regard. However, since the said stage has yet to arrive and in the meantime, for urgent implementation of the ongoing pedestrianzation project in and around Karol Bagh, the respondent no.1/Nr.D.M.C. is proposing to take immediate steps to shift 54 squatters specified in the Circular dated 01.07.2019, including the 13 petitioners herein who are aggrieved thereby, purely as an interim measure and without expressing an opinion on the merits of the case, it is deemed appropriate to pass the following orders in respect of the petitioners

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W.P. (C) 7259/2019 Page 6 of 9

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herein:-

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(i) The petitioners shall appear before the Assistant Commissioner, Karol Bagh Zone at the address mentioned in the Circular dated 01.07.2019, along with all the relevant documents as directed, on 13.07.2019 at 10 a.m. The said documents shall be verified in accordance with the procedure prescribed in this regard.

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(ii) Once the petitioners satisfy the respondent no.1/Nr.D.M.C. on producing the original allotment letters etc. as demanded, they shall be intimated of the specific site allocated to them by way of a dated site plan, to enable them to relocate to the said site, as mentioned in the last column of the tabulated statement that forms a part of the Circular dated 01.07.2019.

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(iii) The period of 48 hours granted to the petitioners to relocate in terms of the Circular dated 01.07.2019, shall start running from the date and time endorsed on the site plans that shall be handed over to each of them by the officers of the respondent no.1/Nr.D.M.C., after scrutinizing the documents furnished by the petitioners.

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(iv) In the event any of the petitioners fails to turn up before the competent authority on the assigned date and time as directed above, then the respondent no.1/Nr.D.M.C. shall be at liberty to proceed against them in terms of the Circular dated 01.07.2019 and in accordance with law.

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Since it has been argued on behalf of the petitioners that the alternate sites mentioned in the tabulated statement are not under the control of the respondent no.1/Nr.D.M.C. and there is a likelihood of the petitioners facing resistance from the land owning agencies as had happened on an earlier occasion, we have specifically asked Mr. Shushant Tripathi, Legal Assistant of the respondent no.3/DMRC to clarify the stand of the DMRC and State if they have any objection to the alternate sites proposed by the respondent no.1/Nr.D.M.C. He had first replied in the negative but later on, developed cold feet and states that he has not received any clear instructions as to whether the alternate sites near the Metro Station Gate at Patel Nagar and Shadipur, as mentioned in the tabulated statement, are acceptable to the DMRC. If the respondent no.3/DMRC has any objection to the sites identified and proposed to be allocated, then the same shall be communicated to the respondent no.1/Nr.D.M.C. tomorrow itself failing which Nr.D.M.C. shall proceed to allocate the said sites in terms of the list contained in the impugned Circular. A similar exercise shall be undertaken by the respondent no.1/Nr. D.M.C. with the land owning agency in respect of the remaining sites so that the petitioners do not find themselves in a predicament on being removed from Ajmal Khan Road.

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For the purpose of determination of their tehbazaari rights, the petitioners would have to approach the TVC with all supporting documents. The TVC will consider their cases in accordance with law and while doing so, their claims will not be rejected solely on the ground that due to their relocation to alternative sites, they were not found vending at the existing sites at Ajmal Khan Road, at the time of conducting a survey.

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W.P. (C) 7259/2019 Page 8 of 9

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In view of the observations made hereinabove, we do not propose to quash/set-aside the impugned Circular dated 01.07.2019, which has primarily been issued by the respondent no.1/Nr.D.M.C. in pursuance to the ongoing pedestrianisation project in and around Karol Bagh Area, in terms of orders passed by a Co-ordinate Bench in W.P.(C) No.5023/2015. 16. The writ petition is accordingly disposed of on the above terms along with the pending applications.

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HIMA KOHLI, J ASHA MENON, J JULY 11, 2019 MK

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Shyam Kapoor and Ors. v. North Delhi Municipal Corporation and Ors.

Case brief

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Shyam Kapoor and Ors. v. North Delhi Municipal Corporation and Ors.

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