Rajnesh v. South Delhi Municipal Corporation

1. The petitioners in each of these petitions claim to be street vendors, street vending from different locations and have filed these petitions to restrain the respondents, South Delhi Municipal Corporation (SDMC) and the Delhi Police from interfering with their respective vending activities till a certificate of vending is issued in their favour pursuant to the survey of street vendors across NCT of Delhi.

2. These petitions came up before this Court first on 17th July, 2015 when the counsel for the petitioners stated that these petitions be disposed of in terms of the order dated 5th May, 2015 in W.P.(C) No.4364/2015 and in other connected petitions.

3. Copy of the said order dated 5th May, 2015 annexed to the petitions shows that the said petitions were disposed of, without issuing any restraint orders against the Municipality or the Police and leaving it open for the petitioners therein to approach the Town Vending Committee as and when the same is constituted and taking note of Section 3(3) of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (The Street Vendors Act).

4. Attention of the counsel was drawn to the order dated 30th June, 2015 in W.P.(C) No.6115/2015 titled Brahm Pal Vs. New Delhi Municipal Corporation and other connected petitions dealing with such matters and further providing that if such petitions, in which virtually no reliefs are pressed, continue to be filed, the same may be dismissed with costs.

5. It was on 17th July, 2015 also noticed that the order dated 5th May, 2015 supra, in accordance with which the relief was claimed in these petitions also, did not grant any relief to the petitioners therein. It was yet further observed that the petitions are being filed under a misconception that without filing these petitions, the Town Vending Committee cannot be approached.

6. On the request of the counsel for the petitioners, the matters were adjourned on 17th July, 2015.

7. The counsel for the petitioners has today drawn attention to paras 15 & 16 of Brahm Pal supra dealing with a case, where the Appellate Authority constituted in terms of the judgment in Gainda Ram Vs. MCD (2010) 10 SCC 715 had restrained the municipality from dispossessing the petitioner therein till his application for permanent tehbazari site was considered and recording the statement of the counsel for the municipality that if on verification, the same was found to be correct, the said petitioner will not be dispossessed.

8. The counsel for the petitioners has also drawn attention to the order of the Presiding Officer of the Zonal Vending Committee and the order dated 14th September, 2012 of the Appellate Authority qua the petitioner in W.P.(C) No.6694/2015. It is stated that similar orders exist with respect to the petitioner in other petitions on the basis thereof, it is contended that the petitioners herein are at par with the petitioner referred to in paras 15 & 16 of Brahm Pal and thus are also entitled to a restraint order against dispossession.

9. I may at the outset say that there is no restraint order in favour of petitioner referred to in paras 15 & 16 of Brahm Pal; all that is recorded is the statement of the counsel for the Municipality.

10. A perusal of the aforesaid orders shows that the petitioner in W.P.(C) NO.6694/2015 was found to be neither a Category I squatter nor a Category III squatter; however the Appellate Authority had directed status quo order in view of the provisions of The Government of National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011.

11. The counsel for the petitioners, on enquiry, states that the petitioners herein are not basing their claims on the provisions of the Government of National Capital Territory of Delhi Laws (Special Provisions) Second Act,

2011. It is contended that since there was an order of status quo in favour of the petitioners herein, during the earlier regime, i.e. prior to the coming into force of the Street Vendors Act w.e.f. 5th March, 2014, the same should continue, till the claims of the petitioners under the said Act are considered.

12. The Street Vendors Act does not contain any provision, giving any priority or beneficial treatment or weightage to such of the street vendors who, under the earlier regime may have been held to be Category I or Category III vendors or who may have interim order/s in their favour. Section 3 of the said Act requires the Town Vending Committee, to be constituted thereunder, to conduct a survey of all existing street vendors and accommodate them in the vending zones in accordance with the plan for street vending and the holding capacity of the vending zones. Sub-section (3) thereof provides that till then, no street vendor shall be evicted or relocated.

13. It is thus not as if street vending is to be unregulated and there is an absolute right to street vend from wherever one may desire. It cannot also be lost sight of that streets are primarily meant for passage, of pedestrians and vehicles and unregulated street vending invariably is an obstruction to movement on the streets. This Court, in exercise, particularly of writ jurisdiction, has to pass orders which advance substantial justice, keeping in view all relevant factors, and cannot be oblivious of the said concerns.

14. Though, undoubtedly there has been a delay on the part of the authorities concerned in constituting the Town Vending Committee and in framing the scheme within the meaning of Section 38 of the Street Vendors Act, but significantly no petition has come seeking mandamus to the concerned authorities to fulfil their statutory obligations in this regard. Instead, every day petitions are filed by persons, claiming to be street vendors and seeking to restrain the Municipal Authority and the Police from interfering in their street vending activity. In none of these petitions, as noticed in Brahm Pal, any such relief has been given. These petitioners are satisfied merely with the orders disposing off the petitions referring to Section 3(3) of the Act. It is for this reason only that this Court, in Brahm Pal was constrained to observe that such petitions, in future, will be dismissed with costs. Obviously, the delay on the part of the Authorities in framing the scheme, constituting the Town Vending Committee is to the benefit of the persons claiming to be street vendors in as much as taking advantage of Section 3(3) supra, they continue to street vend from wherever they desire and which they may not be entitled to, once the survey aforesaid has been conducted and pursuant to which only some would be accommodated in the vending zones to be identified.