Vijender vs South Delhi Municipal Corporation And Anr

G.S. Sistani, J

Present petition has been filed by the petitioner under Article 226 of the Constitution of India seeking a direction to the respondent not to

dispossess/disturb, in any manner, his vending/squatting activities being carried out by the petitioner at the site, situated at pavement near Shiv Durga

Mandir, DDA Flats, Khirki Village Chowk, Khirki Village, Malviya Nagar, New Delhi.

The facts of the case are that the petitioner is a regular street vendor and is stated to have been squatting at the pavement near Shiv Durga Mandi,

DDA Flats, Khirki Village Chowk, Khirki Village, Malviya Nagar, New Delhi, for more than 18 years. Along with the writ petition, the petitioner has

filed challans pertaining to the years 2007, 2008, 2010, 2011, 2012, 2013, 2014 and 2015 to show that the petitioner is a regular street vendor and is

covered under the definition of Section 3 (3) of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (hereinafter

referred to as the ‘Street Vendors Act’).

The grievance of the petitioner is that he has been facing harassment at the hands of the local police and the officials of the MCD, which has led to

filing of the present writ petition.

Counter affidavit has been filed by the respondent-SDMC. As per the counter affidavit, the petitioner is not an eligible squatter and therefore, is not

entitled to a Tehbazari site. This fact has been observed by the Presiding Officer in the order dated 04.11.2010, a copy of which has also been filed by

the petitioner along with this petition.

Learned counsel for respondent no.1/SDMC while drawing the attention of the Court to various challans filed by the petitioner herein, submits that

some of the challans bear the name of the petitioner herein i.e. ‘Vijender’ while others bear the name of ‘Bijender’. Counsel further

submits that the petitioner is coming in the right of way by squatting on a pavement and thereby obstructing free movement of pedestrian and free

flow of traffic. It is further contended by the counsel for the respondent that as per the settled norms of the MCD, the petitioner cannot be allowed to

vend on the metal road.

Learned counsel for respondent no.1 has drawn the attention of the Court to page 50 of the paper book in support of his argument that the petitioner

while squatting on the pavement uses a gas cylinder to cook food on the street. Learned counsel for respondent no.1 also relies on a list of Tehbazari

sites, a copy of which has been filed on record, to show that the area where the petitioner is squatting is a ‘no hawking’ and ‘no vending’

zone.

Learned counsel for the petitioner submits that the MCD should follow due process of law before removing any street vendor(s) and as a general

rule, a show cause notice should be given to the vendors. Counsel further submits that by not issuing a show cause notice, the respondents in a

whimsical manner have been harassing only those street vendors, who are not able to pay the price for squatting. Counsel also submits that the list,

sought to be relied upon by the counsel for respondent no.1, cannot be a ground to evict the petitioner, as the site has to be specifically declared as a

‘no vending’ and ‘no hawking’ zone and the contrary view taken by respondent no.1 to declare those sites which are Tehbazari sites

cannot be permitted. Counsel also contends that only such street vendors can be deprived of their right from vending where any site has specifically

been declared as a ‘no vending’ and ‘no hawking’ zone.

We have heard learned counsels for the parties and considered their rival submissions and also perused the paper book. We may note that primary

prayer made in this writ petition is a direction to the respondents restraining them from interfering from the vending activity of the petitioner at the

pavement near Shiv Durga Mandir, DDA Flats, Khirki Village Chowk, Khirki Village, Malviya Nagar, New Delhi, till the certificate of vending is

issued pursuant to the survey of street vendors across NCT of Delhi.

We may also note that the Delhi Government has been in the process of amending the rules of the Street Vendors Act. It may also be noted that

the scheme of the Act has been stayed pursuant to the directions passed by another Bench of this Court. Meanwhile, with the intervention of this

Court, the Delhi Government was called upon to consider the representations of various groups of street vendors. The representative of street vendors

and their respective counsels, who are appearing in majority of the cases, were asked to give suggestions which were forwarded to Mr.Devesh Singh,

Additional Standing Counsel (Civil), Government of NCT of Delhi. Matters were adjourned from time to time to enable the Delhi Government and the

Lieutenant Governor to reconsider the amendments.

We have been informed that most of the suggestions given by the representatives of the street vendors and their counsels have been accepted and

the Rules have now been notified on 10.01.2018. The effect of Rules not being in place was that TVCs could not be constituted. The main objection

of the street vendor was with regard to the composition of TVC as per the Street Vendors Act. In the TVC, the representations of the street vendors

are to the tune of 40% which is a large percentage. The objective seems to be greater participation of the street vendors.

Mr.Mishra, learned counsel for the petitioner, contends that despite the fact that TVCs have now become functional, the street vendors are still

put to great harassment by not following the due process of law. Per contra, counsel for the respondent has a different story to tell. Counsel for the

respondent contends that in the entire capital, almost every area is being occupied by illegal street vendors, which is creating hindrance in the free flow

of pedestrians and traffic. Counsel also contends that in order to avoid such a situation, the MCD and police carry out drives to remove the illegal

street vendors, but the street vendors keep shifting from one area to another. Counsel next submits that it is impossible to stop such street vendors

from vending despite repeated drives being undertaken in pursuance to the various orders passed from time to time by different courts as there is no

effective mechanism to curtail their vending activities. He further submits that the conditions are such in a large number of areas, which are highly

congested and due to vending activities, it would become impossible to provide any relief in case of any unforeseen calamity. Counsel next submits

that since the rules have been notified, elections would be conducted and TVCs would be made functional. It is at that stage when the provisions of

the Street Vendors Act would be complied with.

Referring to the case in hand, counsel for respondent no.1 submits that no relief can be granted to the petitioner as the petitioner is carrying out the

activity on the pavement and till such time he restricts his activit ies to an area of 6x4 open to sky, he cannot seek the extraordinary remedy provided

under Article 226 of the Constitution of India.

We have in the aforegoing paragraphs given a brief description and sequence of events for the reason that it is this Bench which had asked the

representatives of street vendors as also the counsels who have been appearing including Mr.Mishra, counsel of the petitioner, in a large number of

matters to give their valuable suggestions to ensure that the provisions of the Street Vendors Act are actually implemented. We may also note that in

the absence of any rules being notified, the TVCs would not be functional. But now when the rules have been notified, we see no reason why the

objective and the implementation of the Street Vendors Act would still remain in abeyance.

The relief, which is being sought from this Court today, is largely covered under the provisions of the Street Vendors Act. It is for the TVCs and

other authorities to ensure that the provisions are implemented in letter and spirit. This Court is not in a position to monitor each and every street

vendor of this city; further to monitor whether they are occupying an area which is a ‘no vending’ and ‘no hawking’ zone or such areas

which are vending zones; to monitor whether they are following the norms of 6x4 open to sky; and after being removed from their vending sites,

whether they are vending at the same place or not?

At this stage, to pass a blanket order, as is being argued before us today, would lead to further chaos than what is existing as of today. We keep

the relief, as prayed, open, and adjourn the matter for a period of three months to enable the TVC to become functional.

The matter is adjourned to 23.07.2018. We make it clear that we have not granted any stay in this matter.