TMI Blog1992 (3) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... in appeals brought under Article 136 of the Delhi High Court were referred to a Constitution Bench of this Court for deciding on the grievance of the pavement-traders that the Municipal Authorities were violating their fundamental rights under Articles 14, 19(1)(g) and or 21 of the Constitution by refusing to permit them to trade on streets and footpaths in different localities of the city of Delhi. The Constitution Bench by its judgement dated 30th August, 1989 in Sodan Singh Others v. New Delhi Municipal Committee Others [1989] 4 SCC 155 came to the conclusion that the right to carry on trade or business mentioned in Article 19(1)(g) of the Constitution on street pavements, if properly regulated, cannot be denied on the ground that the street pavements are meant exclusively for pedestrians and cannot be put to any other use. Proper regulation is, however, a necessary condition, for otherwise the very object of laying roads would be defeated. While conceding that all public streets and roads in the country vest in the State, the Constitution Bench held that the State holds them as trustee on behalf of the public and the members of the public are entitled as beneficiaries to us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a right to the use of a public street vested in the State as a beneficiary but this right is subject to such reasonable restrictions as the State may choose to impose. Streettrading is albeit a fundamental right under Article under Article 19(1)(g) of the Constitution but it is subject to reasonable restrictions which the State may choose to impose by virtue of clause (6) of Article 19 of the Constitution. The right to street-trading under Article 19(1)(g) of the Constitution does not, however, extend to a citizen occupying or squatting on any specific place of his choice on the pavement regardless of the rights of others, including pedestrians, to make use of the pavements. In other words the law laid down by the Constitution Bench permits a citizen to hawk on the street pavements by moving from one place to another without being stationary on any part of the pavement vested in the State. After laying down the law on the point in the context of Articles 14, 19 and 21 of the Constitution, the Constitution Bench remitted all the petitions to a proper Division Bench of this Court for final disposal. After the petitions were referred to the Constitution Bench for determining the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tehbazari was being recovered from them by the NDMC. The Committee was required to scrutinise the claims of the pavement hawkers and at the same time look into their grievances. This was a time consuming exercise. Keeping that in view interim directions are issued on 23rd February, 1990 to the following effect : We are of the view that until the scheme drawn up pursuant to the directions of the Constitution Bench is finalised, the petitioners in the several writ petitions placed before us as a group today should be permitted to hawk in the area where they claim to be carrying on the operation without a right to either sit down with or without their merchandise to be sold on the pavements in front of licensed shops or on the pavements as such but as soon as the shops close down in the evening it shall be open to them to settle down with their goods and squat on the pavements and sell their goods. On holidays and special festival occasions as per the prevailing practice they shall be entitled to squat throughout the day. This order is totally interim in nature without prejudice to the stance of both parties and shall not create any right nor prejudice any right, if any. Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It was also submitted that the deadline prescribed by the Thareja Committee was strictly enforced with the result that many of the rightful claimants were denied the opportunity of submitting their claims to the Thareja Committee and having the same duly scrutinised and verified by him. Apart from those whose claims were rejected on the insistence of the strict standard of proof prescribed by the Thareja Committee, counsel submitted that several pavement- hawkers who were unaware of the constitution of such a Committee and to whom a cause of action for seeking redress through court had not arisen were left out from consideration and as such such pavement-hawkers are likely to be denied their rightful place in the scheme if the scheme is finalised without their knowledge. Scores of writ petitions have been filed after the Constitution Bench rendered its decision and most of these were not before the Thareja Committee. Now it must be realised that under Resolution No. 28 itself the Committee was expected to scrutinise the claims on the basis of the receipts of removal charges, police challans, toleration slips, tehbazari receipts, etc. All the same time it is essential to bear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of proof laid down in Resolution No. 28. We would, therefore, direct the Committee to examine the claims of these 17 claimants closely in the light of any other evidence that they may choose to tender and on being satisfied about the genuineness and dependability of the proof so tendered by the claimants, the Committee may dispose of their claims. Under Annexure A squatting is permitted in the entire area except Connaught Place/Circus area because of its special characteristics although Tehbazari permission already granted in respect of that area has to continue. Squatters were agreed to be continued in other areas subject to availability of space. Even in Connaught Circus area NDMC agreed to accommodate squatters provided their presence there did not interferewith the smooth movement of pedestrians. No. squatting could be permitted in zones 2, 3 and 4 because of security considerations but shops and kiosks already in existence were to continue. So far as zone 5 is concerned squatting was agreed to be permitted leaving a margin of 30 Meters on either side of public utility institutions, e.g. hospitals etc. Kiosks, stalls etc. situate in the said areas were to continue. In add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use the process of law do not succeed. We must also realise that a large number of squatters/hawkers have since filed proceedings which await scrutiny. In order to ensure that genuine claims are not defeated and in order to further ensure that the situation in the five zones identified earlier does not remain in a state of flux for all times to come, we deem it necessary to give appropriate directions, here and now, in regard to NDMC cases. We accordingly direct: (1)Out of the 440 claimants, the one-member Thareja Committee will review the cases of those claimants whose claims have been rejected for non-compliance of the standard of proof laid down by Resolution No. 28, if the claimant adduces any other authentic proof in the form of government or local authority records, the genuineness whereof is unimpeachable, and the Committee considers such proof presented to it to be adequate for review. If on perusal such proof is found to be unacceptable, the Committee may refuse to review its decision; (2)In regard to the Sarojini Nagar claims, the Committee may evolve its own criteria or standard of proof dehors the one laid down by Resolution No. 28 and proceed to dispose of the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs after the stipulated date in respect of those claimants who have sought review on or before the stipulated date. If during the said period of two months the exercise for review cannot be completed, the authorities desirous of taking any action will approach the Committee and seek its approval. If the Committee is of the opinion that there is no Prima facie case for review it may permit such action to be taken 10 days thereafter so that the claimant likely to be affected may in the meantime approach the Court and obtain appropriate orders. In respect of all other cases the interim orders, if any, will continue till the Committee has scrutinised their cases and rejected them. Liberty is, however, reserved to NDMC to move for vacating any order if public interest so demands or it is found that the claimant is in any way misusing it; (8)The Thareja Committee will draw up a list of squatters/hawkers identified by it as entitled to protection so that their claims can be regulated in future also. In drawing up the list care should be taken to ensure that one and the same person does not secure a double benefit; and (9)The committee may also draw up a list of squatters/hawkers on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as under : (a) Persons who were found squatting continuously in the survey carried out be the Corporation as on 23.12.82 and who have proof of continuous squatting in a particular place which may be in the form of Police challans when the goods were removed or challans were issued by the Health Department or receipts of payment of Composition Fee to the Corporation and also supported duly by proof of their actual residence in the Union Territory of Delhi, their nationality in the form of Ration Card and entry in the Voters list. (b) Persons who have only proof of squatting on holidays, festival days, etc. and have no other proof of squatting on any other occasion, and (c) Persons who have no proof squatting at all prior to 1982 but have since then registered their claim of squatting in a particular place in the Writ Petitions filed in the Supreme Court and an order of stay has been granted in their favour on the basis of their having adduced proof of squatting anterior to the filing of the Writ Petition. For this purpose the city is divided into ten zones, namely, (i) City Zone, (ii) Karol Bagh Zone, (iii) New Delhi Zone, (iv) South Zone, (v) Nerala Zone, (vi)Shahd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MCD; and (4)Persons who do not fall within the aforesaid three categories would be permitted to apply for hawking lincenced under section 420 of the Delhi Municipal Corporation Act, 1957 and their applications would be considered on merit for permission to hawk - not squat - by moving in specified areas with their goods on their heads or on cycles. They will be entitled to hawk with their goods anywhere in the zone in respect of which they have been granted a licence. However, such permission will be subject to any restrictions that may be imposed by the residential associations of different colonies. Under the scheme the squatters were expected to agree to their being shifted from one zone to another but as stated earlier they have shown reluctance to move on the less lucrative zones. The areas in the ten zones have been duly identified on the plans and the total number of squatters/hawkers to be accommodated in the said areas have also been worked out. Objections were invited from the squatters/hawkers but it appears that barring a few others have not reacted. In order that the squatters/hawkers may have one more opportunity before any final decision is taken on the scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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