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TMI Blog2010 (10) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 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 Ors. v. New Delhi Municipal Committee and Ors. : (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 them to continue their business, that action of the municipality according to those petitioners, interfered with their fundamental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ratio in Saghir Ahmad and Anr. v. State of U.P. and Ors. : 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.... 9. Justice Kuldip Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should proceed as soon as it may be possible. This 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 permission to squat oh 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 10.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Saroji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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. 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 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 v. MCD and Ors. (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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r such occupation. (See the provision of Section 481E(5) of the Act) 39. Under the NDMC Act almost similar provisions ate 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e restrictions on a citizen's fundamental right to carry on hawking under Article 19(1)(g) of the. Constitution. 47. In Bijoe Emmanuel and Ors. v. State of Kerala and Ors. : 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 Ors. v. State of Bihar and Ors. : AIR 1962 SC 1166 and another Constitution Bench decision of this Court in Kharak Singh v. State of U.P. and Ors. : 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistration 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. 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, itiner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors 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: 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 enfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Regulation of Street Vending) Bill, 2009 by the Government of India, Ministry of Housing and Urban Poverty Alleviation. From the preamble and the lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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, representativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be collected for disposal of solid waste from sites and for user of toilet facilities. (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 (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. Is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any other competent Court. 75. In view of such schemes, the hawkers, squatters and vendors must abide by the 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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