SUDHIR MADAN AND ORS v. MUNICIPAL CORPORATION OF DELHI AND ORS

Citation: [2007] 7 S.C.R. 1

Court: Supreme Court of India

Bench: B.P. SINGH, H.S. BEDI

Case summary

SUDHIR MADAN AND ORS v. MUNICIPAL CORPORATION OF DELHI AND ORS.pdf

Judgment text

_. -! ·· SUDHIR MADAN AND ORS v. MUNICIPAL CORPORATION OF DELHI AND ORS MAY 17, 2007 [B. P. SINGH AND HARJIT SINGH BEDI, JJ. ] . J Hawkers/Street Vendors: Policy for Street Vendors-of MCD and Scheme for Street Vendors in NDMCArea: HELD: Supreme Court would not give a direction that fresh survey should be undertaken by an independent expert body or an independent organization to identify the hawking sites and the existence of hawkers- This is essentially a matter which the Municipal Corporation of Delhi has to consider and take a decision-Supreme Court cannot issue a writ directing the MCD to do so, this being a matter ofpolicy-Administrative Law.

Small modification made in the Scheme so far as it relates to prohibition on cooking offood items-The allottees of TehbazarVvending sites may be permitted to serve tea or coffee provided it does not result in disposal ofany waste and the beverage is served in disposable glasses/cups for which adequate arrangement is made for safe disposal by the al/otees ofthose sites. MCD has accepted the suggestion made that the Scheme shall be modified suitably by providing that the Zonal Vending Committees shall be .... presided over by a judicial officer not below the rank ofAddi. District Judge and the Appellate Committee shall be presided over by a retired High Court Judge-MCD would carry out necessary amendment in the Scheme.

The proforma of the application form enclosed by the MCD with the proposed Scheme for tehbazarilvending sites which requires an applicant to give all necessary particulars for consideration of his/her application, is approved-But it will be open to the MCD to require further particulars to be given in case it is considered necesJary-Timing of squatting/vending ' - ( as per the old sc~eme continue. Thereafter the cases ofothers will be considered ~ in accordance with the preference provided in the said sub-paragarph. We, however, clarify that this will not preclude the shifting ofan allottee from one. site to another consistent with the norms laid down in the National Policy on Urban Street Vendors which provides that eviction should be avoided wherever feasible unless there is clear and urgent need of the land in question. The Municipal Corporation will generally follow the norms laid down in paragraph 5 of the National Policy on Urban Street Vendors.

Before any allottee is shifted he should be given an opportunity to give his preference for a site \which may be available for allotment. In sub-para (k) of paragraph (D), it is stated that the nature of goods/ items of daily needs/service will only be allowed which are as per the needs and requirements of that particular area. Preparation of any unhygienic food ~preading infectious diseases, obnoxious, hazardous, electronic items and polluting item shall not be allowed. The existing PCO booths will also be allowed to switch over to other trades as the PCOS have become outdated due to inception of mobile phones/cordless phones. -<- The said sub-para (k) needs to be re-drafted so as to make it clear and categoric that cooking of any food items shall not be permitted at all, but cooked food properly packed may be sold by the allottees. In the case of Maharashtra Ekta Hawkers Union and Anr. v. Municipal Corporation, Greater Mumbai andOrs.

, [2004] I SCC, 625 in sub-para (5) ofpara 14 ofthis Court has provided as under:- "(5) They can only sell cooked foods, cut fruits, juices and the like. We are unable to accept the submission that cooking should be permitted. We direct that no cooking of any nature whatsoever shall + be permitted. Even where cooked food or cut fruits or the like are sold, the food must not be adulterated or unhygienic, All Municipal Licensing Regulations and the provisions of the Prevention of Food Adulteration Act must be complied with. " We are of the view that a similar provision shall be incorporated in the Scheme proposed by the Municipal corporation. Eligibility Conditions: In sub-para (c) of paragraph (E) it is provided that income of the '" ~ applicant should not exceed Rs. 45,000/- per annum from all known sources SUDHIR MADAN v. MUNICIPAL CORPN. OF DELHI [B. P. SINGH, J.

] ' 15 y and in support of this an affidavit shall have to be sworn before the sub Divisional Magistrate/Metropolitan Magistrate. We are of the view that this c'Iause should be deleted. If the applicant has an income of Rs. 45,000/- per annum there is no need for him to ask for allotment of a tehbazari/vending site. Instead, the scheme must provide that the allottees must be persons who need to carry on tehbazari/vending in order to earn a livelihood. His financial standing shall be taken account and only the needy should be considered eligible for allotment ofthe tehbazari/vending sites. 111 . In the case of death of an allottee the site may be allotted to one of his legal representatives who shall actually carry on the business at the site. In case, there are more than one legal representatiyes, those already in employment shall be excluded.

Thereafter ifthe remaining legal representatives agree allotment may be made in favour ofone or more of them-(jointly) who shall ~ctually carry on squatting/vending activity at the site allotted. Such an allottee (s) shall not be permitted to allow any other person to carry on the business at the site allotted and shall in no event transfer his rights therein -r to any other person. These norms require to be incorporated in the scheme. In sub-para (h) of paragraph (D), the following may be added. The transfer of an allotted site to any other suitable places as per availability and feasibility shall be done by the Appellate Committee referred to in sub-para (j) of paragraph D. This shall be done after giving the allottee an opportunity of giving a preference of any other available site. . f The Scheme shall also provide that no license shall be granted to any person in no hawking/squatting zones.

The Station House Officer of the i concerned police station shall take immediate steps to remove any person L found hawking/squatting in a non-hawking/squatting area. If an allotte, who has been allotted a tehbazari/vending site in a hawking/squatting zone, is found carrying on such activity in a non-hawking/squatting zone, the Municipal Corporation may consider cancelling his allotment. In the matter of Gainda Ram and Ors. v. MCD, Town Hall and Ors. , [1993] 3 SCC, 178 in paragraph 1(2) this Court gave certain directions with -f ... regard to holding of casual tehbazari on weekly holidays festivals/meJas etc. We are informed that weekly bazaars which were then 67 in number have since increased in number, and the said direction shall apply to all such weekly bazars. It is clarified that such weekly bazars shall not be held in non hawking/ ,_' -Y squatting zones.

We also clarify that in purely residential areas no hawking/ squatting shall be pennitted except where shopping area has been provided for and there is space available for accommodating such squatters/hawkers. ~ Detailed nonns with regard to holding ofweekly bazaars shall also be declared by the Municipal Corporation of Delhi and placed before this Court for approval. Any change in the non-hawking/squatting zones shall be intimated to the concerned police station. The authorities under the Scheme shall wherever necessary ascertain the views of the Delhi Metro Rail Corporation and the Delhi Fire Services ~ before identifying the sites. I r r- Policy with Regard to N. D. MC. Areas We have also before us a draft Scheme prepared for the street vendors by the N. D. M. C. It appears from the draft scheme that the Vending Committees have not yet been constituted.

We are informed that the Vending Committee shall be constituted within a period of one month from today which shall be entrusted with the tasks enumerated in paragraph 3. 2. In paragraph 4. '. '.. of the Draft Scheme, it is provided that no squatting shall be allowed on the roads/areas specified in the said paragraph. We direct the NDMC that after the Vending Committee is constituted it shall review the exclusion of any of those areas and if any alteration is sought to be made, the same shall be placed before this Court for approval. The scheme should be framed having regard not only to the interest of the vendors but also of the public at large. In para 4. 2. 1 at page 165 of the paperbook, parks have been included fin the Vending Areas. We are of the yiew that parks should be excluded from the Vending Areas unless there be any park where special provision is made for providing space for squatting/tehbazari. , etc. , but hawking only on the.

roads/streets around or near the park may be allowed. Para 4. 5. provides for grant of hawking license. It vests the Vending _,_ Committee in consultation with the Resident Welfare Association to decide the number of categories and type of items which should be permitted for hawking in each of the residential colonies. fl Para 4. 5. 2 provides that the resident welfare association, if they so -I need, may permit additional space for squatting/tehbazari. We are of the view that this should not be permitted unless there is shopping area clearly demarcated where space is available for accommodating such squatters/tehbazaris. In para 4. 8 it is stated that at present the squatting sites/space are of different dimensions. We suggest that, as in the case of Municipal Corporation of Delhi, the tehbazari/vending sites should be uniformly of the specification 6' x 4' and no permanent structure shall be raised on the said site. We have also noticed para 6.

1 of the Scheme wherein the problems created by taxi stands have been highlighted. The counsel for the N. D. M. C. submits that the power of denotifying the general taxi stands vests only in the District Magistrate. These taxi stands are being misused. The footpaths and roads have been encroached by private commercial and luxury vehicles operating as taxis. The N. D. M. C. is not able to remove these taxi stands with ' the result that the footpaths and roads continue to be crowded by these taxi stands. Mr. S,W. A. Qadri, learned counsel appearing for Delhi Police is directed to seek instructions on behalf of the Delhi Administration and submit its response to this Court on the next date of hearing. We have made our general observations which have to be incorporated in the Scheme with clarity. We, therefore, direct the Municipal Corporation of Delhi and the N. D. M. C.

to reframe the scheme in the light ofour observations ·1 contained in this order and submit the same before us within four weeks. We would like to highlight the fact that though this Scheme is to a great extent is for the benefit of hawker/squatters/tehbazari holders, it aiso serves a public purpose. At the same time the convenience and interest ofthe public at large, which constitutes 97. 5% of the population, sho~ld not be forgotten by the· concerned authorities. To the extent possible space may be made available for squatters/tehbazari etc. but no so as to cause inconvenience to the general public. This aspect of the matter should not be forgotten at any -+ time by any of the authorities. "}- The Municipal Corporation of Delhi and the N. D. M. C. will now finalise ~ the squatting/tehbazari zones and submit a detailed report to this Court.

They shall also indicate the norms that they have followed in identifying these sites, in particular, the width of the roads where such aquatting/tehbazari has been permitted and the areas whether commercial/residential or otherwise where such sites are located. They should also indicate the availability of the footpath for the general public after accommodating the squatters. After the sites are identified, norms will have to be evolved by the Municipal Corporation of Delhi and the N. D. M. C. to make allotments. For that purpose they may either make a survey or adopt any other fair procedure for making allotments. \- It may be useful to consider the suggestions made by some of the Advocates present in Court that a detailed proforma may be prescribed by the concerned authorities for making application for allotment of squatting/tehbazari site. . __ Put up these matters on 28th March, 2007 for further directions. I. A. Nos. 394 in I. A. No. 356 in W. P. (c) NO. 169911987, I. A. No.

396 ... in Cont. Pet (C) No. 50612002, I. A. No. 407 in WP (C) No. 169911987 and SLP(C) 702512003 ... ,. _ Let these applications/petitions be placed for orders on 20th February, 2007. ... ' I 1- + ·- \. ,,. L -f- ~. 1- ~