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PETITIONER:

GAINDA RAM AND ORS. ETC.

Vs.

RESPONDENT:

M.C.D. TOWN HALL AND ORS. ETC.

DATE OF JUDGMENT12/05/1993

BENCH:

AHMADI, A.M. (J)

BENCH:

AHMADI, A.M. (J)

ANAND, A.S. (J)

CITATION:

1993 SCR (3) 704 1993 SCC (3) 178

JT 1993 (3) 396 1993 SCALE (2)893

ACT:

Constitution of India, 1950:

Articles 14, 19 (1) (g) and 21-Squatters/hawkers-Grant of

Tehbazari Permission by Municipal Corporation of Delhi-

Scheme evolved by the Corporation on the directions of

Supreme Court--Clarifications and further directions given.

Delhi Municipal Corporation Act, 1957:

Section-420-Grant of Tehbazari Permission to squatters/hawk-

ers--Scheme formulated as directed by Supreme Court-

Clarifications and further directions issued.

HEADNOTE:

Certain guidelines were issued by this Court in Saudan Singh

v. N.D.M.C. & Ors. [1992] 2 S.C.R. 243 in respect of the

squatters/hawkers carrying on business activity in the area

under the Municipal Corporation of Delhi. Pursuant to the

said guidelines, the respondent M.C.D. evolved a Scheme and

undertook an exercise to complete the scrutiny of the claims

of the squatters/ hawkers for grant of tehbazari permission

by which it subclassified the persons found squatting

between 1970 and 1982, and laid down the procedures to be

followed in the implementation of the Scheme. Aggrieved,

the petitioner squatters/hawkers approached this Court for

appropriate directions on their petitions pending in this

Court.

Disposing of the cases, and clarifying directions given in

Saudan Singh and giving further directions, this Court,

HELD : 1.1. In regard to persons who have been found

squatting between 1970 and 1982 and whose names were

contained in the Survey Report, and who were to receive

first priority as per the guidelines issued, the M.C.D.

divided them into two classes viz., those who possessed the

survey report-receipt and those who did not posses the

receipt but could tender evidence or proof of squatting from

1970 to 1982. According to M.C.D. the latter category would

be considered after the former. It is made clear that both

the classes belong to one category and the sub-

classification is not

705

warranted. (708-F-G)

1.2In the name of the procedure set out by the M.C.D., they

would not be permitted to change the nature of the tehbazari

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of those who have been expressly permitted facility of

covered the tehbazari/kiosks/shops/stalls in the past but

those who are not given that facility will not be entitled

to it. Temporary tarpaulin covers/umbrellas would not fall

within the expression 'covered tehbazari because these would

be necessary to combat the vagaries of nature. They will

however, be liable to be evicted if under this pretext they

try to put up a semi-permanent cover over the area on which

they are permitted to squat. By way of abundant caution and

to avoid harassment it would be desirable for them to put up

only a temporary cover to beat the sun or the remand remove

it when they leave the place after business hours.(709C-D)

1.3 Having regard to the segment of the society to which

many of the squatters/hawkers belong, they may not have

retained the tehbazari receipts and it would also be well-

nigh impossible for the M.C.D. to verify their records and

determine whether or not such squatters/hawkers had in fact

paid the tehbazari. Therefore, option is given to the

squattest hawkers who face this difficulty, to pay a lumpsum

of Rs. 3000 in four quarterly installments of Rs. 750 each.

The first installment will be paid within one month after

the receipt of the order or intimation of allotment from the

M.C.D. The subsequent installments will be paid every three

months thereafter. If any squatter/ hawker commits default

in the payment of the installments, his allotment will be

table to be cancelled one month after a reminder is sent to

him and the next person in the order of seniority will he

allotted that space. (709-F-H)

1.4By way of a special consideration, time of one month is

granted to such claimants whose cases were pending on the

date of decision in Saudan Singh's case, but who have not

filed formal claims, to file their claims before the M.C.D.

Committee with all accompaniments and particulars. The

M.C.D. Committee will examine such claims. The claims to be

filed need not be in any prescribed form, but may furnish

the particulars along with the copy of their

petition/appeal/suit pending on or before 13th March, 1992,

duly attested by the Advocate for the party. In case of

doubt, M.C.D. will be at liberty to demand from that party

the production of a certified copy. (710-C-E)

1.5These directions would apply to claims of all

squatters/hawkers who fall in the four categories enumerated

in Saudan Singh, and others have no right as they fall

outside the scheme and are not entitled to any protection.

706

Since all those who claim to be covered under the scheme and

whose claims are awaiting scrutiny are protected by this

order, all the writ petitions/ appeals/SLPs Suits, etc.,

pending in this Court/the High Court of Delhi and Courts

subordinate to it shall stand terminated forthwith. No

further litigation by or on behalf of any squatter/hawker

will be entertained but if the M.C.D. violates any part of

this order, the concerned party governed by this order will

be entitled to file an I.A. for directions. The interim

stay orders granted in those cases shall also stand vacated.

The M.C.D. will, however, maintain the status quo till the

verification is completed. (710-F-H, 712-A-B)

Saudan Singh V.NDMC & Ors., [1992] 2 SCC 458, relied on and

the directions given therein clarified.

The Court observed that the M.C.D. would ensure that future

encroachments do not take place defeating the rights of

existing squatters/hawkers governed under the scheme, and

that it would also protect the interest of the shopkeepers

as they too have a similar right under Article 21 of the

Constitution.

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JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition (c) No. 1699 of 1987.

Under Articles 32 of the Constitution of India.

WITH

Writ Petition (C) Nos. 1059/87, 324, 311, 841, 318, 315,

299, 334, 335, 457, 414, 435, 436, 438, 31, 157, 213, 215,

217, 188,809,441,483, 150, of 1990,616, 1065, 376 of 1989,

372/87,323/90,269/90,317/86,700/86,1096/87,435/89,479, 552,

837, 903, 1097 of 1987, 33/88, 228, 313, 125 of 1989,

627/88, SLP (C) No. 5127/90, WP (C) 475/87, 281, 909 of

1987, 51/88, SLP (C) 4501/87, WP(C) 394, 1158 of 1989, 494,

488, 322, 500, 712 of 1990, 264/86, 752, 798, 791, 793, 790,

776 of 1990, 398/89, 984 of 1990, 719, 1301, 349 of 1987,

138, 418, 1263, 964 of 1989, 11096-97/94, 1011, 752 of 88,

SLP (C) 12418/87, 501/87, 13156/86, CMP 1278 of 1987 in WP

248/87,924/87, 1531/87,479/87,522/89,1042/89,109/ 90,

131/90, 141/90, 146, 156, 157, 164, 180, 238,313,317,351,

359 of 1990, I.A. 361 of 1990, in WP 360 of

1990,362,436,438,445,447,454,455, 457, 478, 483, 488, 494,

498,565,663,664,712,743,776,790,809,814,823,835,886,905,923,

940,944,985, 989, 995, 996, 1007, 1008,1009, 1010, 1049,

1097,1132,1125, 1161, 1180, 1185, 1186, 1187

,1192,1194,1195,1212,1214,1231,1281,1295, 1294, 1233, 1251,

1258, 1283, 127 1 of 1990, 1476, 313, 1316, 1251 of the

1987, 321/86, 237/90, SLP (C) 6925/87, 14496/89, WP 1001,

1004, 1007, 595, 747, 1146, 1156 of 1992, 7, 8, 19 of 1992,

13712-13 of 1984, 54, 62, 109 of 1992 15,

707

45, 137,144,146,145, 147,148, 180,221, 263, 267,347,348,401,

349,350,35 1, 352, 353, 355, 357, 372, 393, 520, 614, 629,

628, 755, 1055,1059,1060,1062, 1066,1117 of1991,1344

of1990,161/84,11096-97/84,134,216,362,401,348, 700, 1203,

1210, 1258, 1273, 1278, 1291, 1305, 1214 of 1987, 163, 434

of 1989, 897/89,1341/89,1436/86,1651,1754of 1986,12492-

541/84,1304/90,1472/87, 1126/87,479/87,138/90,1266/90,13712-

13/84,342,462,539,701,799,931,287 of 1990, 677/89, 168, 200,

217, 253,256,320,365, 374, 375,376of 1992, 20/91, 10 1, 136,

154, 272, 354, 387, 400, 425, 436, 1054 of 199 1, SLP (C)

3119/93.

Govinda Mukhoty, V.M. Tarkunde, Arun Jaitley V.C. Mahajan,

K.N. Rai, A.P. Singh, G.K. Bansal, P.H. Parekh, B.N.

Agarwala, Ms. Simi Kumar, Ms. Sanriti Mishra, M.M. Kashyap,

Ms. Meenakshi Arora, K.R. Nagaraja Ms. Sarla Chandra, R.C.

Kaushik, Satish Chandra Agarwal, L.K. Gupta, D.K. Gara, Ms.

Renu Gupta, P.Narsimhan, B.B. Tawakley, S.K. Sabharwal, An-

dan Ghosh, R.C. Verma, B.D. Sharma, A.K. Sangh, PK.

Manohar, A.P. Mohanty, Bharat Sangal, Ms. Lalita Kaushik

(N.P.), Shree Pal Singh, N. Ganpathy, S.N. Bhatt, Ms. Rani

Jethmalani, S.K. Bisaria, Ms. H. Wahi, Ms. Rani Chabra, Uma

Datta, Shakil Ahmed, Anil Kumar Gupta (11), Ms. Manjeet

Chawla, Arun K. Sinha, Ms. Indra Sawhney, L.K. Pandey, S.

Sreenivasan, Anis Suhrawardy, S.P. Tambwekar, S.P. Pandey

for Pandey and Associates, A.S. Pundir, M.B. Lal & Co. Manoj

Prasad, J.P. Verghese, M.P. Raju, Vishnu Mathur, Manoj

Swarup, Sandeep Narain, Shree Narain, Ms. P. Gopinath,

Ranjit Kumar R.K. Maheshwari, Vineet Maheshwari, V.B.

Saharya for Saharya & Co., Ms. Rekha Pandey, Ms. Bina Gupta,

K.B. Rohtagi S.R. Setia, K.K. Mohan, S,K. Nandy, R.D.

Upadhyay, Ms. Kamini Jaiswal, S.M. Ashri, S.N. Sikka, B.K.

Prasad, P. Parmeshwaran, Ms. Sushma Suri, Ms. A. Suhashini,

Sudersh Menon, G.S. Chatterjee and M.C. Dhingra Advocates

with them for the appearing parties.

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The Following Order of the Court was delivered

In Saudan Singh v. NDMC & Ors, [1992] 2SCC 458 we laid down

certain guidelines in paragraph 11 of the judgment

concerning squatters/hawkers carrying on business activity

in the area within the administrative control of MCD. The

guidelines laid down were four in number, namely

(1) Persons who have been found squatting between 1970 and

1982 and whose names are contained in the survey report

prepared after the survey conducted in 1982 will receive

first priority for grant of tehbazari permission subject to

the scrutiny of their claims;

708

(2) Insofar as casual tehbazari on weekly

holidays, festivals/melas, etc., is concerned,

as well as at the 67 weekly bazars held,

persons availing of the said benefit will

continue to be granted the casual or weekly

tehbazari;

(3) Squatters who have started

squatting/hawking in 1983 onwards and who were

not found on the date of survey would also be

considered for grant of open tehbazari of

6'x4' subject to the production of proof of

continuous squatting and proof of residence

and nationality. Such squatters/hawkers would

be granted open tehbazari subject to

availability of space provided they have

cleared the dues of the MCD; and

(4) Personal who do not, fall within the

aforesaid three categories would be permitted

to apply for hawking licences 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 not been granted a licence.

However, such permission will be subject to

any restrictions that may be imposed by the

residential associations of different

colonies."

Pursuant to the said guidelines, the MCD issued public

notices in newspapers and through handbills, posters, etc.,

between the months of June and August, 1992. In regard to

the category of hawkers/squatters mentioned in the

guidelines, the MCD has undertaken an exercise to complete

the scrutiny expeditiously. In regard to hawkers/squatters

falling under category (1), the MCD has divided them into

two classes, namely, those who possess survey- report-

receipt dated 23.12.82 and those who do not possess that

receipt but are in a position to tender evidence or proof of

their squatting from 1970 to 1982. It is stated that the

latter category will stand and will be treated and

considered after the former. We would like to make it clear

that they all belong to one category and this

subclassification is not

warranted.

Even in regard to those who do not possess the survey report

receipt dated 23. 12. 82 but tender satisfactory proof in

regard to their squatting from 1970 to 1982 should be

considered along with those who possess the receipt and be

arranged in the order of their respective seniorities. We

do not think that the sub-

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709

classification is necessary.

The MCD has also stated that no covered

tehbazari/kiosks/stalls/shops will be given to any person

under the present scheme and only open to sky tehbazari on

area admeasuring 6'x4' should be permitted to eligible

squatters and the seniority list will be prepared

accordingly on submission of proof. Counsel for the

squatters/hawkers contended that earlier covered

tehbazari/kiosks/shops/stalls was permitted to some of them

like Jai Jawan Stores, etc., and if by this procedure it is

intended to disturb them that should not be permitted. We

read this procedure only to mean that those who have not

been expressly given such facility will not be given covered

tehbazari/kiosks/shops/stalls, etc., under the scheme which

is being flnalised. We would like to clarify that in the

name of the procedure set out by the MCD, which they propose

follow to finalise claims, they would not be permitted to

change the nature of the tehbazari of those, who have been

expressly permitted facility of covered

tehbazari/kiosks/shops/stalls in the past but those who are

not given that facility will not be entitled to it. We may

also clarify that temporary tarpaulin covers/umbrellas would

not fall within the expression 'covered tehbazari because

these would be necessary to combat the vagaries of nature.

They will, however, be liable to be evicted if under this

pretext they try to put up a semi-permanent cover the area

on which they are permitted to squat. Byway of abundant

caution and to avoid harassment it would be desirable for

them to put up only a temporary cover to beat the sun or

therein and remove it when they leave the place after

business hours.

Under category (3) -in paragraph 1 1 of the Judgment, we

have in the concluding lines stated that such

squatters/hawkers would be granted open tehbazari subject to

availability of space provided they have cleared the dues of

the MCD. Counsel submitted that this requirement of

clearing the dues is likely to cause avoidable Hardship

since the period covered would be almost of a decade and at

times more. Many of the squatters/.hawkers having regard to

the segment of society to which they belong may not have

retained the receipts and it would also be well-nigh

impossible for the MCD to verify their records and determine

whether or not such. squatters/hawkers had in fact paid the

tehbazari. We see considerable force in this submission and

we, therefore, provide an option to the squatters/hawkers,

who face this difficulty to pay a lump sum of Rs. 3,000 in

four quarterly instalments of Rs. 750 each. The first

instalment will be paid within one month after the receipt

of the order or intimation of allotment from the MCD. The

subsequent instalments will be paid every three months

thereafter. If any squatter/ hawker commits a default in

the payment of the instalments, his allotment will be liable

to be cancelled one month after a reminder is sent to him

and the next person in the order of seniority will be

allotted that space.

710

Lastly, it was submitted by counsel for the

squatters/hawkers that some of them who had already filed

petitions/appeals in this Court or in the High Court or

suits in the Trial Courts prior to the date of this Court's

judgment in Saudan Singh dated 13th March, 1992 and who on

that account bona fide thought that it was not necessary to

make a formal application to the Committee appointed for the

purpose of scrutinising and verifying their claims, may be

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permitted to do so. Although we are generally reluctant to

extend the time but having regard to the bonafide

misunderstanding pointed out by counsel on behalf of the

squatters/hawkers, we put it to the learned counsel for the

MCD if the MCD would have no objection to the extension of

time and he fairly stated that he would have no objection

provided the facility is limited to those whose

petitions/appeals/suits were pending in any of the courts on

13th March, 1992. By Way of a special consideration we

grant time of one month from today to such claimants to file

their claims before the MCD Committee with all

accompaniments and particulars. The MCD Committee will

examine such claims. The claims to be filed need not be in

any prescribed form, but may furnish the particulars and be

accompanied with the copy of the petition/ appeal suit with

their numbers which they claim were pending on or before

13th March, 1992, duly attested as a true copy by the

Advocate for the party. If there is any doubt, MCD will be

at liberty to demand from that party the production of

a certified copy. We would expect the MCD to complete the

process of verification as early as possible. The procedure

indicated by MCD, except for the modifications which we have

made hereinabove, may be followed. Mr. Maheshwari states

that the endeavour of the MCD would be to complete the

verification within four months from today. We think that

this is a reasonable period. Let it be so done.

The directions given hereinabove being of general

application would apply to claims of all squatters/hawkers

who fall within the categories enumerated in paragraph 11 of

Saudan Singh's judgment dated 13th March, 1992. Those who

do not fall in any one of the said four categories have no

right as they fall outside the scheme and are not entitled

to any protection. Since all those who claim to be covered

under the scheme and whose claims are awaiting scrutiny are

protected by this order, we see no reason why their

petitions/appeals/suits, etc., should be kept pending. We,

therefore, propose to dispose them of by this order.

Intimation of this order will be sent to the Registrar of

the High Court of Delhi who will immediately apprise the

Judges of the subordinate judiciary for compliance. The

Registrar will ensure compliance. With these observations,

all the writ petitions/ appeals/SLPs/suits, etc., pending in

this Court/the High Court of Delhi and Courts subordinate to

it shall stand terminated by this forthwith. In other words

no civil litigation commenced by or on behalf of the

squatters/hawkers pending in the Courts of Delhi shall

survive. No further litigation by or on behalf of any

squatter/ hawker will be entertained but if the MCD violates

any part of this order the

711

concerned party governed by this order will be entitled to

file an I.A. for directions. The interim stay orders

granted in those cases shall also stand vacated. The MCD

will, however, maintain the status quo till the verification

is completed and only in regard to those hawkers/squatters

whose claim are negatived, will it be open to the MCD to

take action for their eviction ten days after the claim is

rejected. The MCD will also ensure that future

encroachments do not take place defeating the rights of

existing squatters/hawkers governed under the scheme. It

will also protect the interest of the shop-keepers as they

too have a similar right under Article 21 of the

Constitution. No order as to costs in all cases.

G.N.

Petitions disposed of.

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712