Neeta Bhardwaj & Ors. v. Kamlesh Sharma

9. Heard. The allotment of temporary shops has been the subject matter of several orders passed by this Court. Vide one of the earliest orders of this Court dated 27th September, 2021, the shopkeepers - who were merely licensees or paying tehbazari amounts to unknown persons/persons stated to be pujaris/baridaars - were clearly held to have been in continued possession of the Mandir without any legal right to the same. However, this Court had taken a compassionate view of the matter and had directed preparation of a list by the Administrator, of all shopkeepers running shops in the Kalkaji Mandir premises, after verifying their credentials. The relevant extract of the said order dated 27th September, 2021 reads as under: “97. In the same vein, it is essential for a Mandir, where thousands of devotees visit for conducting puja every day, irrespective of its public or private status, to be devoid of unauthorized encroachments, which results in extreme inconvenience and safety as also security concerns for the devotees.

98. Ld. counsel for the various parties appearing before this Court, the Local Commissioner, the Court Receivers, as also the SDMC/ Delhi Police, are all unanimous in their submissions to this Court that the shopkeepers. tehbazari holders and other occupants are not paying proper tehbazari/licence fees either to the Committee, or to the baridaars, in a regulated manner. As per the report of the Delhi police, there are more than a hundred shops that are operating from the Mandir and making profits.

99. The manner in which the shopkeepers have constructed their shops has created obstructions in the movement of devotees, as is evident from the photographs which have been placed on record. For the purpose of the safety of devotees and others in the Mandir, it is essential that unauthorised occupants/shopkeepers/tehbazari holders/Chabutara holders who do not have any valid legal rights to occupy the same, are liable to be removed in coordination with the Delhi Police and the SDMC.

100. Accordingly. it is directed that all unauthorized occupants/encroachers, who do not enjoy valid tehbazari licenses, and who are in unauthorized occupation of the said premises, would be liable to be removed, until and unless there is a Court order protecting the said occupant. All encroachments in the Mandir premises, and complex and peripheral areas are also directed to be removed.”

10. Thereafter, vide order dated 7th December, 2021, this Court held as under:

11. Insofar as the tehbazari amounts were concerned, vide order dated 9th December, 2021, this Court directed as under: “15. Insofar as the tehbazaari / license fee being paid by the shopkeepers are concerned, on the basis of the public notice that has been given, as recorded in the last order dated 7th December 2021, and the bids received by the ld. Administrator, as also the sizes of the shops that are to be allocated to each of the shopkeepers, the tehbazaari / license fee and the terms and conditions for the said allotments, would be fixed by this Court. The manner in which the tehbazari/license fee collected is to be dealt with, including for the purpose of redevelopment and share of the baridaars in the same, shall also be considered by the Court. ”

12. The list was prepared in terms of the subsequent order dated 21st December, 2021, as under: “15. It is made clear that bids may be submitted by various shopkeepers/other allottees who are interested in obtaining either the temporary shops or temporary kiosks, as per the public notice released by the ld.

16. On the basis of the bids received, the ld. Administrator may prepare a list of all such persons who are willing to take allotment of these shops/kiosks. In addition, the baridaars at the Mandir would also be required to contribute for the creation of these temporary structures. The exact ratio of the contributions etc., shall be finalised by the ld. Administrator.

17. Finally, on the basis of the bids received and discussions with baridaars, the shopkeepers, the Civic Agencies and the ld. Architect, the ld. Administrator shall place on record a final report for creation of temporary structures (shops and kiosks) at the Kalkaji Mandir, for this Court’s consideration and approval.

18. For receiving the report of the ld. Administrator in respect of the said meetings and for perusal of the report for creation of temporary shops/kiosks, as well as ascertaining the status of the unauthorised construction, list these matters on 14th January, 2022 at 2:30 pm.”

13. Views of various parties in respect of the tehbazari amount were also sought pursuant to subsequent orders, including orders dated 14th January, 2022, 1st February, 2022, and 25th April, 2022. Using this list of potential allottees prepared by the ld. Administrator, and upon the shopkeepers expressing willingness to participate in the allotment of temporary shops once such shops were constructed, the final list of allottees for both small temporary shops and large shops was finalized by the ld. Administrator. The tehbazari amount payable by such shops was also recommended by the ld. Administrator. In this regard, insofar as the large shops are concerned, various bids from interested persons were received by the ld. Administrator, on the basis of which the tehbazari amount was fixed. Insofar as the small shops are concerned, the Court had requested the ld. Administrator to place on record the details of tehbazari amounts, which were being paid by shopkeepers in the past and on that basis, Rs.30,000/- was recommended by the ld. Administrator for being fixed as the tehbazari amount. This Court had considered the relevant documents and accepted the recommendations of the ld. Administrator, observing vide order dated 9th September, 2022, as under: “Allotment of Small Temporary Shops

54. The Architect has reported that the small temporary shops are ready for allotment. As per the ld. Administrator, 100 shopkeepers have been finalized who have deposited a sum of Rs.30,000/- each for the purposes of construction of small temporary shops. The list of the said persons is available with the ld.

55. As recorded in Report No.6, the recommendation of the ld. Administrator in respect of tehbazari amount for the smaller temporary shops, is as under:

56. Pursuant to the above recommendations of the ld. Administrator, the tehbazari amount is fixed at Rs.1,000/- per day for all the shopkeepers who are allotted the small temporary shops. In respect of widows, the tehbazari amount shall be fixed at Rs. 500/- per day for the said shops. Depending upon the assessment of revenues which the ld. Administrator may make, the modification of the tehbazari amount would be considered by this Court, at a later stage.

57. Accordingly, allotment of all the small temporary shops shall commence from 14th September, 2022, as per the terms set out hereinabove. It is made clear that the deposit of the tehbazari amount for the first month shall be made by the shopkeepers at the time of allotment. …

60. Accordingly, allotment of the 16 large temporary shops shall also commence from 14th September, 2022, as per the terms set out hereinabove. It is made clear that the deposit of the tehbazari amount for the first month shall be made by the shopkeepers at the time of allotment.”

14. The present application and the Short Report seek modification of these directions insofar as the tehbazari amount is concerned.

15. At the outset, this Court notes that the construction of the temporary shops and large shops has been supervised and monitored by this Court for almost a year now. Considerable expenses have already been incurred in the construction of these temporary shops, on the understanding that the shopkeepers who would be allotted such shops would pay the requisite amounts of tehbazari, which would also offset expenses. The intention behind the construction of these temporary shops was to ensure that there is no unauthorized hawking or haphazard sale of puja samagri or goods within or on the periphery of the Mandir premises, which hampers access to the Mandir for devotees. The space for the temporary shops was chosen after the ld. Administrator and the Architect extensively interacted with the baridaars, pujaris and the shopkeepers and surveyed the premises, as also after considering the expected revenue to be generated by such shops based on past experience. The temporary shops are fully constructed and are ready for allotment. Under such circumstances, owing to the proceedings and chronology of events that have taken place in these matters, this Court is not inclined to modify the tehbazari amount. The tehbazari amount shall be payable as directed in the order dated 9th September, 2022, extracted above. The allotment of the shops shall now be done in terms of the said order within next 2 days. If any of the shopkeepers/allottees are not willing to pay the tehbazari amounts, the allotment of such shopkeepers shall be cancelled by the ld. Administrator and the allotments can be made to such persons i.e., other shopkeepers or pujaris, as the ld. Administrator deems appropriate after verification of their credentials.

16. This Court further notes that vide order dated 9th September 2022, this Court had directed payment of the first monthly tehbazari amount at the time of allotment. However, in view of the circumstances discussed above, insofar as the payment of the first payment of Rs.30,000/- is concerned, such shopkeepers, who are allottees, are now granted time till 10th October, 2022, to pay the first monthly tehbazari amount.

17. At this stage, Ms. Shilpa Goel, ld. Counsel, submits that some pujaris are also willing to seek allotment of temporary small shops. Ms. Biswal, ld. Counsel for the ld. Administrator, submits that the said pujaris had bid for the large shops, but are not part of the current list of potential allottees for small shops. In this view of the matter, it is made clear that after the current list of potential allottees already finalized by the ld. Administrator, is exhausted, if there are any vacant small shops and if any pujaris/shopkeepers, are willing to bid for the vacant temporary small shops, the ld. Administrator shall consider the same. In the larger interest of the smooth ingress and egress of the devotees especially during the forthcoming Navratra period, the prayer for setting up temporary tables in the Kalkaji Mandir premises is rejected.

18. Insofar as the plea to restrict entry only from the Lotus Temple side is concerned, the said issue has been considered in the previous order dated 9th September, 2022, and in view of the forthcoming Navaratras, orders on this issue are being deferred. The relevant portion of the said order reads: “41. On this proposal to restrict the entries of devotees only from the Lotus Temple side, there are various submissions that the baridaars, pujaris and shopkeepers have made before the Court. A perusal of the recommendations of the Id. Administrator itself shows that during the Navratras and other emergent situations, the entry cannot be restricted only to the Lotus Temple side. Considering that the dates of Navratras are between 26th September, 2022 to 5th October, 2022, this Court at this stage does not wish to change the status quo as all the parties would have to be heard and their concerns have to be addressed.

42. Accordingly, it is directed that till the next date of hearing, the entry and exit would be continued in the same maimer as it is currently being done in the Kalkaji Mandir premises.”

19. Finally, it is made clear that illegal and unauthorized hawking cannot be permitted to continue within the Mandir premises or on its periphery. Directions have already been issued vide order dated 9th September, 2022, to the SHO, PS, Kalkaji, in the following terms: “43. However, since the ld. Administrator has expressed concerns in respect of deployment of police for crowd management, the S.H.O., Kalkaji is directed to deploy ten male and ten female constables each on a daily basis for stationing at the entry and exit points and for patrolling within the premises. The order dated 15th November, 2021 which reads as under shall also be compiled with:

44. However, for the period of the Navratras, since the everyday footfall of devotees is expected to be more than 1 lakh devotees a day, the S.H.O., Kalkaji, shall coordinate with the ld. Administrator and depute the required personnel for management of the crowd. It shall be the responsibility of the Delhi Police to ensure that there is no stampede or any such kind of heavy crowding situation and the crowd is managed properly in the Kalkaji Mandir premises, during the Navratras. XXX Shops/Vendors on the periphery of the Kalkaji Mandir premises

52. Vide previous order dated 25th April, 2022, this Court had also noted that several temporary stalls/vendors were operating on the periphery of the Kalkaji Mandir premises. This Court had directed the SDMC to clarify if any such vendors had been licensed by filing an affidavit in this regard. The said order dated 25th April, 2022 reads as under: “10. The ld. Administrator has also mentioned in Report No.5 that several temporary stalls/vendors are operating on the periphery of the Kalkaji Mandir premises. The SDMC to clarify if any vendors have been licensed in this area and if so, what are the numbers and details of such vendors, by filing an affidavit by the next date of hearing.

11. The issue of removal of vendors from the periphery of the Mandir shall be considered once the barricading is completed. In the meantime, it is directed that SDMC and the GNCTD shall not give any further permission to the street vendors for hawking in the periphery of the Kalkaji Mandir.

12. At this stage, ld. counsel for the GNCTD, submits that GNCTD does not give any hawking rights or any tehbazari for hawking to vendors.”

53. Pursuant to this order, no affidavit has been filed yet. Ld. Counsel for the SDMC has appeared today and submits that he does not have the information in this regard. The SDMC shall ensure that no vendors or hawkers shall be permitted to occupy the periphery of the Kalkaji Mandir as the same, according to Ld. Counsel for the Administrator and the baridaars/pujaris, obstructs the smooth ingress and egress of the devotees. The Delhi Police shall ensure compliance of this order.”

20. As per the above directions, the SHO, PS, Kalkaji, is expected to deploy requisite personnel - both male and female - for this purpose, and ensure that there is no illegal and unauthorized hawking in violation of the previous orders dated 15th November, 2021, 25th April, 2022, and 9th September, 2022. It is made clear that any non-compliance of these directions shall be liable to strict action, inasmuch as the Delhi Police is expected to ensure that there is no disturbance in the devotees’ access to the Mandir, and no commotion is created there, especially during the forthcoming Navratra period. Accordingly, the deployment of the requisite personnel shall be ensured by the SHO, PS, Kalkaji, as also the DCP, South District, Delhi. They shall be personally responsible to ensure this deployment.

21. At this stage, Mr. Balbir Singh, SHO, PS, Kalkaji, has joined the proceedings and assured the Court that a company of 200 police personnel has been called for to ensure that during the Navratra period, the access to the Mandir is not hampered in any manner and there is no commotion or stampede even otherwise. He submits that even outside of the Navratra period, they shall ensure there is no unauthorized hawking for selling of the puja samagri, hawan samagri or any other items, in the Kalkaji Mandir premises or on its periphery, except at the designated temporary allotted shops, as approved by this Court.

22. CM APPL.42041/2022 is disposed of, in terms of the above order.

23. List along with other Kalkaji Mandir matters, on the date already fixed, i.e., 28th October, 2022 at 2:30 p.m. PRATHIBA M. SINGH JUDGE SEPTEMBER 22, 2022/dk/ms