Full Judgement
Delhi High Court
Yogender Jha vs Municipal Corporation Of Delhi ... on 7 March, 2019
$~29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
%
Date of Order: 07th March, 2019
+ W.P.(C).11845/2018
YOGENDER JHA ..... Petitioner
Through: Mr. Naushad Alam, Advocate
Versus
MUNICIPAL CORPORATION OF DELHI AND ORS.
..... Respondents
Through Mr. Satyakam, ASC, GNCTD along
with Asstt. Engineer Mr. J.C. Singh.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH
G.S. SISTANI, J. (ORAL)
CM.APPL 45858/2018(stay)
1. The applicant/petitioner, who is 79 years of age, has filed the present writ petition, seeking the following reliefs: "(i) Issue a writ in the nature of certiorari or other suitable writ or order or direction thereby quashing/setting aside the letter/order(Annexure-P-5) issued by respondent no.4;
(ii) Issue a writ in the nature of mandamus or other suitable writ or order or direction thereby directing the respondents to allow the petitioner to run the tea stall at Main Rohtak Road-Service Lane(in front of F-5, Udyog Nagar, New Delhi);
W.P.(C).11845/2018 Page 1 of 7
(iii) Issue a writ in the nature of mandamus or other suitable writ or order or direction thereby directing the respondent no.1 to 4 to implement qua petitioner, the direction dated 18.05.2016 of this Hon'ble Court passed in LPA 136/2016;
(iv) Pass any other or further order or orders that this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case and in the interests of justice."
2. Mr.Alam, learned counsel appearing for the petitioner submits that in the year 2008, the Lt. Governor of Delhi had permitted the petitioner to run a tea stall at Rohtak Road service lane(in front of F-5, Udyog Nagar), New Delhi. The stall was however demolished by the respondents forcing the petitioner to approach the office of the Lt. Governor again, when a report was called for. The petitioner admittedly also filed a suit for injunction which stands decreed in favour of the petitioner as admitted by the respondents in their counter affidavit. Despite a decree in favour of the petitioner, the officials of the respondents have demolished the tea stall of the petitioner on 09.05.2018.
3. Learned counsel for the petitioner submits that since the Town Vending Committee(TVC) is not functional, he has no remedy available to him and in his old age, he is left with no source of livelihood.
4. Mr. Satyakam, learned counsel for the respondent Govt. of NCT of Delhi submits that the order passed by the Lt. Governor stands duly withdrawn. He further submits that the respondents have acted based
W.P.(C).11845/2018 Page 2 of 7 on the orders passed by another Division Bench of this Court directing the respondents to clear the main roads encroachment free. He further submits that post the withdrawal order of the Lt. Governor, one of the defendants had filed a review petition before a learned Senior Civil Judge, which is still pending.
5. We have heard the learned counsels for the parties.
6. We may note that this matter has been adjourned from time to time to enable the respondents to allot an alternative site to the petitioner herein. Mr. Satyakam submits that there is no alternative site which is available with the PWD. None is present on behalf of the North Delhi Municipal Corporation nor the North Delhi Municipal Corporation has filed any response.
7. On 22.10.2008, following order was passed by the office of the Lt.
Governor:
"Sub: Establishment of tea stall by Sh. Yoginder Jha on main Rohtak Road service lane (in front of F-5, Udyog Nagar).
Reference: Grievance No.20819902070.
Please refer to correspondence resting with this Secretariat on the subject cited above.
Hon'ble Lt. Governor has directed to permit the tea stall owner to carry on his trade for his livelihood where he has done so far the last 18/19 years already. Hence Delhi Police and Land owning agency may not cause any hindrance to him for earning his livelihood in the manner he has done for the last nineteen of years or so.
Sd/-
(Shantonu Sen) OSD(PG) to Lt. Governor"
W.P.(C).11845/2018 Page 3 of 7
8. As the tea stall of the petitioner was being demolished, another order was passed by the office of the Lt. Governor on 13.03.2015, which reads as under:
"Shri Yogendra Jha, aged 73 appeared in public hearing regarding demolition of his tea stall in front of F-5, Udyog Nagar. In this regard, written directions have already been issued by the then OSD to LG vide oral order dated 22.10.2008 (copy enclosed). Further as per the directions of Hon'ble High Court:-
"All the existing street vendors/hawkers operating across the country shall be allowed to operate till the exercise of registration and creation of vending/hawking zones is completed in terms of the 2009 Policy. Once that exercise is completed, they shall be entitled to operate only in accordance with the orders/directions of the concerned Town Vending Committee."
It is therefore, requested that the matter may be looked into and a report be sent for the perusal of Hon'ble Lt. Governor.
Sd/-
(Ajay Chaudhry) OSD to LG, Delhi"
9. The petitioner herein filed a civil Suit wherein the factory owner who was disturbing the possession of the petitioner was also impleaded as a party. Serious allegations have been made against the said factory owner. It is not in dispute that the civil Suit stands decreed in favour of the petitioner. Mr. Satyakam, learned counsel has drawn the attention of this Court to the subsequent order passed by the Lt. Governor, which we reproduce below:
W.P.(C).11845/2018 Page 4 of 7
"F-in-C,PWD/10649/M-1 CD No.057300844 Reference Proposal on pre-page:
41. The note on pre-page along with the material available on record has been considered by the Lt. Governor and the directions issued from this Secretariat by JO No.47(9)/RN/1288/19464-65 dated 22.10.2008 are hereby withdrawn.
42. Further it has been desired that PWD should take action as per law and as per direction of Court in the matter, if any.
43. The issues with the approval of Hon'ble Lt. Governor.
Sd/-
(Anoop thakur) Pvt. Secretary to LG Pr. Secretary(PWD), GNCTD"
10. Section 3(3) of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, reads as under: "3. Survey of street vendors and protection from eviction or relocation ....
(3) No street vendor shall be evicted or, as the case may be, relocated till the survey specified under sub-section (1) has been completed and the certificate of vending is issued to all street vendors."
11. Mr. Alam, learned counsel for the petitioner has strongly urged before us that once a decree has been passed, it was incumbent upon the respondents to comply with the order, particularly when no challenge was laid to the order so passed. Hence the order has not been complied with. We find force in the submission of the learned counsel for the petitioner. Another submission of the learned counsel for the
W.P.(C).11845/2018 Page 5 of 7 petitioner is that since the petitioner is admittedly a regular street vendor, which is evident upon reading of the communication of the Lt. Governor, which refers to as far back as to the year 2008 and also reference made in this communication that the petitioner had been vending 18-19 years, it is thus contended that the petitioner would be entitled to protection in terms of Section 3(3) of the Street Vendors (Protection of Livelihood and regulation of Street Vending) Act, 2014. We find force in the submission of the counsel for the petitioner on this count as well.
12. We may also note that while the petitioner would have no right to obstruct free flow of traffic and the rights of the pedestrians, the petitioner at the age of 79 years of age cannot be deprived of his right of livelihood. We may also take note of the fact that we have been directing the respondents to provide alternate site to the petitioner, subject to his following the norms of the MCD of not subletting the vending site, occupying an area of not more than 3 x 5 ft open to sky. But no such site has been offered by the Corporation and even none is present on their behalf today.
13. Accordingly, as a purely interim measure, till the TVC is functional, we allow the petitioner to carry out his vending activities at the same site in terms of the decree passed by the Civil Judge, subject to the following conditions:
(i) He would occupy an area of not more than 3 x 5 ft open to sky;
(ii) He would ensure that there is no obstruction of free flow of traffic and free movement of pedestrians; and
W.P.(C).11845/2018 Page 6 of 7
(iii) He would also comply with the norms of the Municipal Corporation.
14. We make it clear that this is only an interim measure and in case an alternate site is offered to the petitioner, the same would be considered by this Court.
15. List on 29.04.2019.
W.P.(C).11845/2018
16. Let the counter affidavits be filed by the respondents within four weeks. Rejoinders, if any, be filed within two weeks thereafter.
17. List on 29.04.2019.
18. Copy of the order be given Dasti to the parties under the signatures of Court Master.
G.S.SISTANI, J.
JYOTI SINGH, J.
MARCH 07, 2019 pst
W.P.(C).11845/2018 Page 7 of 7
