Suleman Abbas v. Municipal Corporation of Delhi

1. This hearing has been done through hybrid mode.

2. The present petition has been filed by the Petitioner seeking inter alia, directions to the Respondents to implement the order dated 6th December, 2019 issued by the Assistant Commissioner, Municipal Corporation of Delhi and give physical possession of the tehbazari site allotted to the Petitioner.

3. The brief background of the present case is that, the Petitioner is stated to be an old squatter who had a tehbazari site at Dangal Maidan. However, the said site was demolished for the redevelopment plan of Dangal Maidan parking.

4. Pursuant to the said demolition, the MCD vide order dated 6th December, 2019 reallotted the tehbazari site of the Petitioner to Kucha Natwa, Chandni Chowk in accordance with letter dated 2nd April, 2018 having reference no. No. ADC/ CSPZ/2018/D-8, as per which tehbazaris of SPM, Kauria Pul, Khoya Mandi, Bankhandi Mandir, DEMS(HQ) and Dangal Maidan were shifted to Subzi Market, Bagh Deewar.

5. In compliance with the aforesaid order, a possession slip dated 3rd January, 2020 was issued to the Petitioner by Administrative Officer, City- SP.

6. The Petitioner is one of the seven tehbazari holders, who was issued the aforesaid possession slip site at Kucha Natwa, Chandni Chowk.

7. However, in the said site, the Petitioner had made permanent construction which led to the allotment of the tehbazari site being cancelled.

8. The said cancellation was challenged by the Petitioner in the writ petition being W.P.(C) 1403/2022 titled ‘Suleman Abbas & Ors. v. North Delhi Municipal Corporation & Ors.’.

9. In the said writ petition, vide order dated 24th January, 2022, this Court took serious note of the fact that the Petitioner and other such tehbazari holders had placed temporary lockable structures with shutters at the vending sites.

10. The Court, after having heard the MCD and Petitioners therein, had come to the conclusion that this was in clear violation of the vending conditions itself. Thus, the Court observed as under: “13. Secondly, the concept of Tehbazari and Street Hawking and Vending does not envisage that the hawkers or vendors would occupy – round the clock, any particular place, or erect on the allotted site any structure – whether permanent or temporary, much less, on their own. All that the Supreme Court observed in the aforesaid order was that the MCD was proposing to allow the Tehbazari/ vending sites to be covered – wherever possible, for which standard design would be evolved by the Corporation. It does not mean that the hawkers and vendors can occupy permanently, or even round the clock, Tehbazari/ vending sites. The activity of Tehbazari /vending itself postulates that the activity would be carried out only on the days the said activity is permitted; during the times of the day when such activity is permitted, and within the area, within which the activity is permitted. There is no question of any hawker or vendor, staking a claim to occupy any public space in the name of hawking and vending, round the clock, by placing a lockable structure with shutters– temporary or otherwise, at the site and converting the same into a shop, where the hawker/ vendor and his goods can permanently remain round the clock. xxx xxx xxx

16. It is clear to us that the MCD itself appears to have misunderstood the concept of street hawking and vending – if the submission of Ms. Aggarwal were to be accepted, that they have themselves come up with the design of a lockable kiosk with shutters, which may be erected at the Tehbazari site to provide protection against inhospitable weather conditions to the hawkers and vendors. A Tehbazari license is merely a hawking and vending license on the street. The street is meant primarily for the use of the people to commute – either on foot or in a vehicle – motored or manually driven. The Tehbazari license does not give a right to the licensee to claim or usurp any part of the public street, or foot path, for his or her exclusive use by placing, either permanent or temporary structure. Just like the public, the hawker/ vendor can use the street, however, for carrying out the activity of hawking/ vending on the street, he/ she must obtain a license. He may keep/ display his goods and wares strictly in terms of the license However, that license cannot be construed as an allotment of a parcel of land on the street for the exclusive use of the licensee. The installation of the lockable kiosk with shutters- of the kind placed by the petitioner seeks to do that. We may also observe that the kiosks/ structures in question are – in the context of the rights of the pedestrians and other users of streets, pathways and public spaces, permanent and cannot be considered as temporary. This is because these structures/ kiosks – though not rooted and embedded into the earth, are not capable of being moved by persons while use in public streets, pathways and spaces, if they are found to be causing obstruction. They would require several people to move them from one place to another, and may even require machinery and equipment for being moved. Thus, for all practical purposes they are permanent.

17. The state of the city today is alarming vis-à-vis hawking and vending activities which are taking place in already crowded markets. The open spaces meant for pedestrians, commuters and market goers have been completely taken over by the street vendors and hawkers, to the grave detriment of the citizenry.

18. Recently, we had occasion to look at photographs of hawkers and vendors in Chandni Chowk area, carrying on their hawking and vending activity on open pavements and path ways. We found that the said activities were being carried out in a completely unregulated manner, and hawkers and vendors have sprawled themselves, and their goods, at will, all over the place, including right in the middle of the walk ways and even under the bus shelter.”

11. In terms thereof, the Court has observed that a tehbazari licensee cannot erect a lockable, shuttered kiosk and turn the vending site into a shop. Further, it was also noted that such kiosks created by the Petitioner, being immovable in any practical sense, were permanent structures.

12. Under these circumstances, the petition filed by the Petitioner and other similarly placed tehbazari holders was dismissed with costs of Rs.5,000/- and their structures were removed.