Allowed

Sri Asgar Ali v. Nagar Panchayat Ranipur

Uttarakhand HC1 Dec 2022WPMS/1022/2019

Case brief

AI extract

What is this about?

The High Court of Uttarakhand held that the BHEL township functions as a local authority. The court directed BHEL to regulate street vending under the central Street Vendors Act, distinguishing it from state rules due to BHEL's public status. Petitioners seeking new licenses were denied, only those vending prior to the application were protected.

What did the court decide?

Directed BHEL to regulate the market under the Central Street Vendors Act, constituted a Town Vending Committee with BHEL representation, recognized existing vendors but barred new entrants, and order

Sri Asgar Ali Vs Nagar Panchayat Ranipur — Writ and Judicial Review | Uttarakhand HC (2022)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition (M/S) No. 1022 of 2019

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Sri Asgar Ali and Another

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……………...Petitioners

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-Versus-

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Nagar Panchayat Ranipur and Others

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……….….…...Respondents

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Present: Mr. T.A. Khan, learned senior counsel assisted by Mr. Mohd. Shafy and Ms. Sadaf, learned counsels for the petitioners.

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Mr. T.S. Fartiyal learned Additional C.S.C. for respondent nos. 2 and 5.

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Mr. B.P. Nautiyal, learned senior counsel assisted by Mr. Manokam Nautiyal, learned counsel for the respondent-B.H.E.L..

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Date of Hearing and Order: 01.12.2022

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Sri Sanjaya Kumar Mishra, J.

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Upon hearing the learned counsel for the parties, the Court has passed the following order:-

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By filing this writ petition, the petitioner being Laghu Vyapar Kalyan Samiti, Peeth Bazar, B.H.E.L., Ranipur, Haridwar, represented by petitioner no. 1, who is one of the office bearers of the said Samiti, has prayed for the

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following reliefs:

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A. Issue a writ of mandamus, commanding the respondent no. 1, 2 and 5 not to collect any Tehbazari from the petitioner and other vendors carrying on their business in B.H.E.L. industrial township by themselves or through agency of any thekedar.

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B. To grant a declaration that Ranipur Nagar Panchayat has no jurisdiction to function with in B.H.E.L. Industrial Township excluded by notification dated 19^th May 195 Annexure No. 6.

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C. To issue a writ order or direction in the nature of mandamus commanding the respondent no. 1, 2 and 5 to give account of Tehbazari taxes and stamp duty recovered in respect of B.H.E.L. industrial township by them. Including the amount of theka and security received in 2004-05 from petitioners and other vendors and this Hon’ble Court be further pleased to direct the respondents no. 1, 2 and 5 to make refund thereof to the petitioners and other vendors.

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i. The respondent no. 3 directed to comply with the provisions of “Street Vendors (Protection of Livelihood and Regulation of Street Vending) at 2014”. They may also be directed to comply of the Similar Act for the benefit of the Street Vendors which has been inacted by Govt. of Uttarakhand in the year of 2016

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ii. The respondent no. 3 be directed to constitute town vending committee and 44% members of that committee should be from the members of the society of the petitioners. The respondents no. 3 be directed to register all the vendors and to issued the licenses to the members of the petitioners.

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iii. To grant the facilities of road, electricity supply, water supply, scavenging and toilet facilities in the vending zones and the respondent no. 3 also be directed to provide the facilities of toilets as well as the tin sheds in the vending zone.

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iv. The respondent no. 3 should not shift the vendors from a particular vending zone where the vendors are carrying on their business for a period of last 50 years.

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v. The respondent no. 3 may be restrained from closing the “peeth bazaar” which is situated within the vicinity of BHEL Haridwar.

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The facts of the case are not much in dispute at the stage. The petitioner no. 2 is a Society of street vendors. The members of the society carry on street vending business in the vicinity of BHEL, Ranipur, Haridwar. It

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is a registered society. By virtue of the notification dated 05.05.1965, in exercise of the powers under Section 1 Sub-Section 37 of the Uttarakhand Municipality Act, the Governor of the Uttar Pradesh was pleased to declare, in respect of the Ranipur Area heavy electrical township in the erstwhile district of Saharanpur (now in the state of U.P.), administrative provisions for some of the matters described in Section 7 & 8 of the aforesaid Act. The said area was to be known as a Notified Area Ranipur Heavy Electrical Township. Thereafter, the Ranipur Heavy Electrical Township notified area functioned. However, subsequent thereto as per the Proviso to Article 243 (Q)(1), the Governor of Uttar Pradesh issued another notification dated 19.05.1995, in which it was provided that keeping in view the services like Nagar Palika rendered by Industrial Township the BHEL was also declared as a industrial township for the purpose of services which are to be provided by the BHEL just like municipality. It is appropriate to take note of the exact words used in the relevant portion of the notification.

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1- Hkkjr gSoh bysfDVªdy gfj}kj] ftyk gfj}kjA

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2- bf.M;u MªXl Qkjekfl;wfVdYl fyfeVsM ohjHknz] nsgjknwuA

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3- Mhty yksdkseksfVo oDlZ] eLpkMhg] okjk.klhA

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4- >kWlh jsyos lsVyesUV] fyk >kWlhA

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After passing of this notification on 19.05.1995, the Nagar Panchayat, Ranipur, tried to collect Tehbazari from the petitioners, who were carrying vendorship within the limits of Peethbazar, Haridwar.

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The petitioner filed this present writ petition. However, originally the petitioner had only three prayers, i.e., prayers (A) to (c). The case was disposed of by the Division Bench by passing the following orders:

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The question, which arises for determination is as whose employees who are under the employment of Nagar Panchayat, Ranipur and who are still serving, shall be? It is not in dispute that after the notification dated 19.5.1995, the B.H.E.L. has allowed those other employees to continue to run their service and their salary is being paid to them from that levy and office is also being run. Thus, after the notification dated 19.5.1995, the date on which the existence of Nagar Panchayat, Ranipur came to end, these employees shall be treated to be the employees of the BHEL as the services are still being rendered by these employees. Meaning thereby, the services are being rendered by the B.H.E.L. after the notification dated 19.5.1995 through those employees which were employed by the Nagar Panchayat, Ranipur prior to the notification dated 19.5.1995.

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Thus, the writ petition is allowed. Since the Nagar Panchayat, Ranipur is not in existence and we as have held that the employees shall be the employees of the B.H.E.L. and services shall rendered by the B.H.E.L., the B.H.E.L. shall collect the The Bazari from the petitioners. The amount deposited by the petitioners

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shall be transferred to the B.H.E.L. However, if the B.H.E.L. reduces the services of the employees rendered at present on the principle of quid pro quo, the TehBazari fees shall also be reduced. No order as to costs.

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Aggrieved by such order, the B.H.E.L. prefer special leave application and civil appeal to the Hon’ble Supreme Court. The Hon’ble Supreme Court finally disposed of the matter on 20.07.2017 by passing the following order:

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“It is conceded at Bar that relief claimed in the writ petition were totally different than the adjudication made by the High Court.

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It is stated by the learned counsel appearing on behalf of the respondents who filed the petition in the High Court that they did not pray for the relief which has been granted by the High Court as against BHEL.

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In the aforesaid backdrop and facts and circumstances, we set aside the impugned order and request the High Court to decide the petition afresh after duly considering the relief prayed for in the petition.

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Let the High Court decide the matter, accordingly. The appeals are, accordingly, allowed.”

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In that view of the matter, the matter was taken up by

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the High Court afresh. However, in the meantime, because of change of roaster, this matter was assigned to the Single Bench instead of the Division Bench; hence, it came before this court for disposal.

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In course of hearing, learned counsel for the petitioner would submit that once the B.H.E.L. township has been declared as industrial township for the purpose of giving

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the municipal service to the residents therein then, the provision of “Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014” shall be applicable. The petitioner, therefore, filed an application for amendment of writ petition, which was allowed and the amendment was incorporated in the writ petition. Thereby, the petitioner inserted the prayer (i) to (v) (sic).

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In course of hearing, the learned counsel for the petitioner would further submit that since the municipal services are being provided by the B.H.E.L. authorities, it is clear from the averment made in the counter affidavit, especially, in paragraph no. 3 & 8, it should be considered as such other body entitled to function as a local authority.

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For the purpose of proper appreciation, we take note of the exact pleadings raised by the BHEL in paragraph no.

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3 & 8, which reads as follows:

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That the contents of Para No. 3 of the Writ Petition are matter of record. It is pertinent to submit that Nagar Panchayat, Ranipur (RespondentNo. 1) is illegally charging Tehbazari Taxes in violation of UP Govt. Order Nos. 6/4180/38-Stha0A0A0Na0Pa0/98 Lucknow dated 20.06.1998 (Annexure-CA-1) and UP Govt. letter No. 4116/9-1-2000-56Sa/95 dated 31.10.2000 (Annexure-CA-2) whereas all the civic amenities are being provided by the BHEL to the vendors within the BHEL Township.

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That with respect to the contents of paragraph-8 are wrong and denied. It is pertinent to submit here that Answering Respondent Company has at no stage exploited the license vendors operating within the BHEL township. It is also stated that the BHEL provides all civic amenities to the vendors. All the rubbish/garbage of fruits, vegetables and fishes etc., leftover by the vendors of the Peethbazar creates heavy polution in the vicinity of the employees in the B.H.E.L. Township. The cleaning arrangement for the same are being made by the B.H.E.L, besides providing lighting facilities, ramps for display and selling of items by the vendors and from time to time they have to manage the difficulties faced by the vendors during the Peeth Bazar period. The Nagar Panchayat only legally collects the Tehbazari and does not provide any amenity to the vendors in lieu of the Tehbazari collected from them.

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Thus, it is clear as far as the learned Senior Counsel, Mr. T.A. Khan’s submission is concerned, that B.H.E.L. authorities are providing civic amenities to the residents of the area where the Peethbazari is functioning.

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Learned Senior Counsel appearing for the B.H.E.L. very emphatically argued that the provisions of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 ( hereinafter referred to as the Act ) will not be applicable, in view of the fact, that the rules framed by the State of Uttarakhand does not include an industrial township as the authorities who is managing the civic services of the township. He would

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further submit that the prayer of constituting the Vending Committee cannot be granted as the Act itself provides in Section 22, that the appropriate Government may, by rules made in this behalf, provide for the term and the manner of constituting a Town Vending Committee in each local authority.

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Thus, on analysis of the arguments advanced and pleadings raised, this Court is of the view that the following simple questions arises for determination in this case:

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i. Whether Bharat Heavy Electrical Limited Township, which is managed by the B.H.E.L. authorities shall be guided by the provisions of the Street Vendors Act?

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ii. Whether the authorities of the B.H.E.L. itself shall be considered as a body entitled to maintain the local authority in any town?

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In order to answer the question, in an effective manner, we take note of the definition of local authority provided in the Street Vendors Act at Clause (C) of Sub-Section (1) of Sub-Section (2), it reads as follows:

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“local authority” means a Municipal Corporation or a Municipal Council or a Nagar Panchayat, by whatever name called, or the Cantonment Board, or as the case may be, a civil area committee appointed under section 47 of the Cantonment Act, 2006(41 of 2006) or such other body entitled to function as a local authority in any city or town to provide civic services and regulate street vending and includes the “planning authority” which regulates the land use in that city or town;

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(underlined to supply emphasis)

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Thus, it is clear that the Street Vendors Act is not only applicable to the Municipalities. It can and should be applicable to any other body, who has the entitlement to function as a local authority in a city to provide civic services and regulate street vending.

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In course of hearing, the learned Senior Counsel appearing for the B.H.E.L. assisted by the Law Officer of the Company, would submit that the B.H.E.L. township also consists of a big colony where the employees of the B.H.E.L. reside, schools are also functioning and four market complexes are functioning. The sanitation work of the entire colony, which is the part of the industrial township, the allotment of the shop are also carried out by the civic department of the B.H.E.L.

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Thus, it is clear that the B.H.E.L., as per the terms provided in Clause C, quoted above, is providing civic

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services to the residents of the B.H.E.L colony. Thus, this court is of the opinion, that the B.H.E.L. is functioning as a local authority in the industrial city of the B.H.E.L. Ranipur and providing services regulating street vending.

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As far as the contention of the learned Senior Counsel of the BHEL regarding the non applicability of the Uttarakhand Street Vendor Protection Rule is concerned, this Court takes note of the fact that, in fact, the Uttarakhand Street Vendors (Protection of Livelihood and Regulation of Street Vending) Rules, 2016, is applicable only to Municipal Corporation, Municipal Boards and Nagar Panchayats of Uttarakhand. The applicability of the Act cannot be denied as the Rules framed under the Act is only a subordinate legislature. It cannot override the provisions of the main Act enacted by the Parliament of India.

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In that view of the matter, taking into consideration that the Street Vendors Act has been enacted by the Indian Parliament with an avowed Objective to Protect the rights of urban street vendors and to regulate street vending activities and for matters connected thereto with an incidental thereto; and keeping in view further the

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fact, that the BHEL is a public sector undertaking and, therefore, is an instrumentality of the State, and being such instrumentality of the State, has the duty and responsibility towards the persons who are dependent on its industrial activities. This is so because Indian State is a welfare State.

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Hence, this court is further of the opinion that at present the Peethbazar is operating in a very haphazard manner. The same shall be regulated as per the provisions of the Street Vendors Act, but, the BHEL has the discretion only to recognize such street vendors who were vending in the Peethbazar at the time of filing of the application. Any subsequent members of the petitioner no. 2 shall not be entitled to the provisions of the Street Vendors Act. Hence, the writ application is allowed. Rule is made absolute. Prayer no. 1, 2 and 3 (i.e. A to e) has become infructuous. It is brought to our notice that the Tehbazari collected from the street vendors has been deposited with the Nagar Panchayat Haridwar uptill 2004 and 2005. The Nagar Nigam Haridwar will transmit that much of amount which was collected as Tehbazari from the petitioner to the BHEL.

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The respondent no. 3 is directed to comply the provisions of Street Vendors Act within a time bound programme of six months from today. As far as the prayer no. 5 is concerned, since, Section 22 provides that the appropriate Government may by Rules provide for the terms and the manner of the constitution of Town Vending Committee, we hereby directed the BHEL authorities to move an appropriate application before the State of Uttarakhand to include the township of BHEL Ranipur in the rules framed by it in the year 2016.

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Secondly, they would also make a request to the Government to constitute a Town Vending Committee where the representative of the BHEL should be in the majority and also in accordance with the provisions of the Street Vendors Act.

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Since, the dispute is also at this stage regarding the collection of Tehbazari from 2005 till date as admittedly, the petitioner has not prayed any money to any of the authorities including the BHEL, a mandamus is hereby issued against the petitioners to pay the Tehbazari from 2005 till date at the old rate to the BHEL.

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With such above observations, writ petition is disposed of.

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Grant urgent certified copy of this order, as per Rules.

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(Sanjaya Kumar Mishra, J.) 01.12.2022

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Pooja

Sri Asgar Ali v. Nagar Panchayat Ranipur

Case brief

What is this about?

What did the court decide?

Sri Asgar Ali v. Nagar Panchayat Ranipur

Case brief

What is this about?

What did the court decide?

What the court decided

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