Shobha Jain v. South Municipal Corporation Delhi West Zone and Ors.

1. The present writ petition has been filed by the petitioner under Article 226 of the Constitution of India seeking the following directions: a) issue an order / direction, more in the nature of Quo Warranto, declaring the action of the Respondent in demolishing the said writ property which was allotted to the Petitioner under handicapped quota through an allotment letter no. 633/CL & EC/06dt. 10.08.2006 for a P.C.O Booth at site measuring 7' length, 5 width X 8' height near Sulabh Suchayala at Uttam Nagar, Near Bus Terminal N.G Road, New Delhi without assigning any reasons, as illegal, arbitrary, unjust and unconstitutional, being violative of Articles 14, 21 and 300-A of the Constitution of India and also contrary to the allotment 2019:DHC:1854-DB done by the Commissioner, MCD (the Central Licensing & Enforcement Cell, Town Hall) Delhi; b) Issue an appropriate writ, order or direction to Respondents restraining the Respondents, their agents, assignees from dispossessing the Petitioner from P.C.O Booth at site measuring 7’ length, 5 width X 8' height near Sulabh Suchayala at Uttam Nagar, Near Bus Terminal N.G Road, New Delhi; c) That the Respondent No. 2 be directed to provide protection to the Petitioner and her son from Respondent No. 1 & 3 and that the Petitioner is protected from being dispossessed from P.C.O Booth at site measuring 7’ length, 5 width X 8' height near Sulabh Suchayala at Uttam Nagar, Near Bus Terminal N.G Road, New Delhi by Respondent No. 1 & 3 in the interest of justice.

2. The facts of the case are that the petitioner was allotted a Tehbazari site for running a PCO booth measuring 7’ x 5’ at the in gate near the boundary of Uttam Nagar Bus Terminal, N.G.Road, New Delhi under the handicap quota on 10.08.2006. On 30.4.2007, the petitioner was granted possession of the site in question. Since then, the petitioner is stated to have been depositing tehbazari/license fee besides the electricity charges. The grievance of the petitioner is that the officials of the respondents have been verbally threatening to dispossess her from the site in question and also demolish the kiosk allotted to her. Aggrieved by the fear of dispossession, the petitioner has approached this Court.

3. Learned counsel for the petitioner submits that the petitioner is a single woman with 85 % disability. She has no source of livelihood except the earnings from the site in question. She is also assisted by her son, who is also dependent on her. Counsel further contends that in case, the petitioner is dispossessed from the site in question or her kiosk is demolished, it will not only affect their livelihood but would also cause serious prejudice to rights. Counsel for the petitioner further submits that as per the allotment letter her Tehbazari site will not be removed or shifted.

4. Ms.Puja Kalra, learned counsel for the South Delhi Municipal Corporation (SDMC) submits that the necessity of removal of the petitioner from the site in question has arisen on account of the traffic congestion in the area. It was also pointed out that in order to decongest the area in question the petitioner has been asked to relocate her site from IN Gate of Uttam Nagar Terminal to OUT gate of Uttam Nagar Terminal approximately 150-200 meters for smooth flow of traffic. Ms.Kalra submits that despite the repeated actions having been taken, the encroachers resurface in the area.

5. Learned counsel for the petitioner has handed over in Court today the recent photographs of the site in question taken on 28.03.2019, which have been taken on record. Counsel for the petitioner, while relying on the photographs, submits that the photographs show that despite the drive conducted, as claimed by the respondents, the area continues to remain highly congested. Counsel further submits that the removal of the petitioner from the site in question will not serve any purpose as the area is highly congested and occupied by illegal encroachers. It has further been submitted that being a handicapped person, it would be highly prejudicial to the rights of the petitioner in case she is removed under the pretext of traffic congestion and in all probability if the petitioner is removed, the area in question will be occupied by some illegal encroachers. Counsel also submits that the respondents are also harassing the petitioner.

6. We have heard learned counsel for the parties, considered their rival submissions and also perused the record including the photographs, which have been handed over in Court today.

7. The petitioner has approached this Court assailing the verbal order issued to the petitioner to remove her kiosk. The petitioner was allotted a Tehbazari site for running a PCO booth measuring 7’ x 5’ at the in gate near the boundary of Uttam Nagar Bus Terminal, under the handicap quota on 10.08.2006. Copy of the allotment letter has been placed on record. Aggrieved by the threat of removal by the officials of the respondent has led to the filing of the present writ petition.

8. It may be noticed that on 22.10.2018 and 10.01.2019, we had passed the following orders: Order dated 22.10.2018 “The Inspector of the SDMC is present in Court. He submits that the necessity of removing the petitioner from the In-Gate and Out-Gate has arisen because of the suggestion made by the SDM of the area to avoid traffic congestion. We have examined the photographs of the area and we find that the entire area is completely blocked by the vendors and traffic. Looking at the photographs would show that there would be little or no difference after removing the authorised structure of the petitioner herein from the In-Gate and to the Out-Gate. Ms. Puja Kalra, counsel for the SDMC submits that the SDMC is likely to take action for removal of unauthorised street vendors. List on 10.01.2019. Interim order to continue till further orders. The Traffic Inspector of the area is directed to remain present in Court on the next date of hearing.” Order dated 10.01.2019 “Traffic Inspector is present in Court. He submits that there is a proposal to remove the small demarcation by the MCD to widen the road. He further submits that the number of buses plying in that area have increased many folds and thus, it is necessary to keep the road clear from encroachers. Let a meeting be held between the DCP of the area, the concerned Deputy Commissioner of MCD of the area and the Traffic Inspector to work out the mechanism to ensure that the road is encroachment free and free movement of traffic and pedestrian is not hampered. Re-notify on 25th February, 2019.”

9. We have perused the Status Report and the Minutes of the Meeting, which have been placed on record. As per minutes, the respondents have resolved to keep the area encroachment free and various suggestions have been made. Relevant portion of the Minutes of Meeting reads as under: “At the outset, the ACP/Vigilance, Dwarka District welcomed DCP/Dwarka, Representatives of SDMC and all the officials present in the meeting. Initially DCP/Dwarka asked from the participants for any judicious suggestions on the subject matter from their side.

(i) The Assistant Engineer, Works Department, SDMC Sh.Jai

Bhagwan Gupta and the Administrative Officer, General Branch, SDMC Sh.Thaneshwar Kumar proposed that with the consent of the Petitioner, Ms Shobha Jain, she will be allotted an alternative site and the same shall be finalized after due discussion with the Public Works Departments or within his own department i.e. SDMC for the purpose of proposing an alternative site to the petitioner.

(ii) Immediate and Regular anti-encroachment and decongestion drives shall be undertaken at regular intervals by the SDMC in coordination with the local police and the traffic police to ensure hassle free movement of the vehicles and the pedestrians along the stretch.

(iii) The ACP-Traffic and the Traffic Inspector present in the meeting ensured that they shall contribute proactively to the cause by roping in measures like issuing challans against the offending vehicles. (iv)The local police was directed to readily provide police protection as and when called for by the SDMC officials in conduction of the anti-encroachment drives and in matters relating to the instant petitioner’s cause. The meeting concluded with the ACP/Vigilance’s word of thanks to the participants and with the resolve that any further directions that will be passed by the Hon’ble Delhi High Court shall be followed in letter and spirit.”

10. We have also perused the photographs handed over by the counsel for the petitioner in Court today. One of the photographs has been scanned as under:

11. Even during the pendency of the matter in this court, the respondents have not been able to clear the area from illegal encroachers. The petitioner who is an authorized Tehbazari license holder cannot be singled out while the others continue to block the area. Respondent no.1 is a statutory body, which must act in a fair and just manner.