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PETITIONER:

SAUDAN SINGH AND ORS. ETC.

Vs.

RESPONDENT:

N.D.M.C. AND ORS. ETC.

DATE OF JUDGMENT13/03/1992

BENCH:

AHMADI, A.M. (J)

BENCH:

AHMADI, A.M. (J)

RAMASWAMI, V. (J) II

RAMASWAMY, K.

CITATION:

1992 AIR 1153 1992 SCR (2) 243

1992 SCC (2) 458 JT 1992 (2) 190

1992 SCALE (1)679

ACT:

Constitution of India, 1950-Article 19(1)(g)-Public

Street-User by citizen-Scope of-Street-trading-Whether a

fundamental right-Right of a hawker-Ambit of.

Constitution of India, 1950-Article 32,136-Deciding the

question of livelihood and survival of large number of

families-Whether Court to adopt compassionate approach-

Claims of genuine squatters/hawkers-Determination-Court's

directions to NDMC and MCD.

Constitution of India, 1950-Article 32,136, 19(1)(g)-

Petitions by hawkers-Pending-Their claims to be finalised-

Court's direction on listing of new petitions.

HEADNOTE:

The petitions under Article 32 of the Constitution and

certain appeals under Article 136 of the Constitution filed

against adverse judgments of the High Court, were referred

to a Constitution Bench for deciding 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 street and footpaths in different

localities of the city of Delhi, under the respective

control of the NDMC and MCD.

The Constitution Bench in Sodan Singh & Others v. New

Delhi Municipal Committee & Others, [1989] 4 SCC 155 held

that the right to carry on trade or business mentioned in

Article 19(1)(g) of the Constitution on street pavements, if

properly regulated, could not be denied on the ground that

the street pavements were meant exclusively for pedestrians

and could not be put to any other use; that the right of a

pavement-hawker was subject to reasonable restrictions under

clause (6) of Article 19 of the Constitution and the State

as trustee was entitled to impose all necessary limitations

on the character extent of user by such pavement-hawkers;

that there could not be a fundamental right of citizen to

occupy a particular

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place on the pavement where he would squat and engage in

trading business, that a hawker could not assert a

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fundamental right to occupy permanently specific places on

any pavement, that the right to carry on any trade or

business and the concept of life and personal liberty

enshrined under Article 21 had no connection whatsoever and,

that Article 21 had no application.

After stating the law, the Constitution Bench remitted

all the petitions to the Division Bench for final disposal.

After the decision rendered by the Constitution Bench,

several other writ petitions came to be filed in this Court.

NDMC Cases

This Court by its order dated 21st December, 1989

appointed a committee, known as the Thareja Committee. In

the light of the NDMC's Scheme vide Resolution No. 28 dated

10.11.1989 and the decision in Sodan Singh the Committee

examined the claims made by the squatters and identify

street pavements in different areas were street hawking

could be regulated without being a hindrance to other users.

A direction was also given by order of 23rd March, 1990

that pending receipt of the report from the Committee

hawking would be permitted subject to the same being

regulated in sensitive areas.

During preliminary scrutiny, the Committee found that

'takhats' were given on hire by those who claimed to possess

them on rentals varying from Rs.300 to Rs.1,000 per day

depending on the season or the 'takhat holders' used to

carry on business at the said 'takhats' through servants

while they themselves attended to their business elsewhere

end at certain places the 'takhat-holders' whose names

appeared in the petitions were non-existent i.e. the orders

were in fictitious names.

The Committee considered it imperative to undertake a

strict scrutiny to ensure that the benefit of the scheme

percolated to the deserving and not to those who were merely

exploiting the fluid situation by obtaining court orders on

distorted and inaccurate facts. The Committee, therefore,

invited claims in the form of a statement on oath coupled

with original genuine documents in support of it. This was

done by public notices at the spot and through counsel in

case of pending cases. In

245

addition, local visits were made to verify presence of the

claimant at the site where he professed to carry on business

and if not found at such visits he was asked to substantiate

his claim by proof of challan, fine receipts or tehbazari

receipts in order to eliminate bogus and fictitious claims

Records of NDMC were also checked for cross verification

Out of the 460 claims registered with the Committee,458

related ro Resolution No.28 while the remaining two

concerned contempt proceedings. Out of the 458 claims, the

Committee scrutinised 440 claims out of which it upheld as

many as 114 claims for allotment of

stalls/kiosks/sites,etc., (area mentioned for each claimant)

and 110 claims for other reliefs referred to in Resolution

No. 28.

Seventeen claims in respect of Sarojini Nagar area

could not be verified by the Committee, as the claimants

contended that they were not in a position to meet the

minimum proof standard of producing at least one genuine

document in a time gap of one year as they were under the

patronage of a local politician, and hence they were never

disturbed by the police or any other authority and,

therefore, they were not in a position to offer proof of the

type insisted upon by the Committee. The non-cooperation by

the N.D.M.C. added to the problems of the Committee. The

Committee, therefore, sought the guidance of the Court to

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resolve this deadlock.

The pavement-hawkers, submitted that the strict

standard adopted by the Thareja Committee for recognising

the claim of a pavement-hawker overlooked the fact that most

of the pavement-hawkers were poor and illiterate persons who

could not be expected to have maintained proper records of

receipts, challans, etc. issued by the police or other local

authorities to support their claims;that the standard of

proof expected by the Thareja Committee was unrealistic and

it was essential to modify the same to do complete justice

to the concerned parties; 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; 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 pavement-hawkers

were likely to be denied their

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rightful place in the scheme if the scheme was finalised

without their knowledge;that scores of writ petitions were

filed after the Constitution Bench rendered its decision and

most of the petitioners were not before the Thareja

Committee; and that if strict proof as provided by the

guidelines of Resolution No. 28 is not insisted upon in

respect of Sarojini Nagar area claimants, there was no

reason why it should not be relaxed in respect of the other

claimants whose claims were rejected.

NDMC point out that the situation in Sarojini Nagar was

completely different and incomparable with other areas in

view of the peculiarity of the prevailing circumstance.

MCD Cases

The MCD prepared a scheme for regulating

squatting/hawking business in Delhi and appointed a

Committee for the identification of squatting/non-squatting

areas in different zones. This Committee was expected to

take a final decision regarding the areas identified for

squatting/hawking. This was to be done in consultation with

the Commissioner of Police so that the needs of vehicular

traffic and other police/health problems could be taken care

of. The criteria for priority allotment here also

determined.

Under the scheme the squatters were expected to agree

to their being shifted from one zone to another but they

showed reluctance to move on to less lucrative zones. The

areas in the ten zones under MCD control were duly

identified on the plans and the total number of

squatters/hawkers to be accommodated in the areas were also

worked out. Objections were invited from the

squatters/hawkers but that barring a few others did not

react.

Disposing of the writ petitions filed under Article 32

of the Constitution and the appeals filed under Article 136

of the Constitution, in the light of the law settled by the

Constitution Bench in Sodan Singh's case, [1989] 4 SCC 155

and disposing of the writ petitions filed after the

Constitution Bench rendered its decision, this Court,

HELD : 1.01. Every citizen has 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 State

may choose to impose. [252E]

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1.02. Street-trading is albeit a fundamental right

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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, a citizen is permitted 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.

[252E-G]

2.01. Having regard to the fact that the Court dealing

with the question of livelihood and survival of a large

number of families, this court does not think it would not

be justified if it adopts a compassionate approach so as to

ensure that genuine squatters/hawkers are not denied their

daily bread at alter of technicalities while at the same

time ensuring that those who are out to exploit and abuse

the process of law do not succeed. [285C-D]

2.02. 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,in regard to NDMC cases,

the following directions were made :

(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 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 claims on the basis thereof. In doing so

fresh claims, if any,received may also be scrutinised;

(3) Public advertisements will be issued by the

Committee in local newspapers having wide circulation

inviting claims from squatters/hawkers

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who have not preferred claims or filed proceedings in court

by a date to be stipulated therein, such claims must of

course be consistent with the eligibility criteria laid down

in Resolution No.28. In addition to such public

advertisement to be issued in newspapers of different

languages such as English, Hindi, Urdu, South-Indian

languages, etc., to be determined by the Committee, hand

bill and pamphlets shall also be printed and distributed and

pasted in different parts of the five zones selected for

squatting/hawking inviting claims by the stipulated date.

The advertisements/pamphlets, etc. will also cover the

claimants falling within direction (1) and (2) above;

(4) The Registry of this Court will not entertain any

further Writ Petitions/Special Leave Petitions from any

squatter or hawker concerning the sites chosen in the five

zones mentioned hereinabove but will instead direct the

petitioners to approach the Thareja committee if they have

moved such Writ Petitions/Special Leave Petitions before the

date stipulated by the Committee (which date will be

communicated to the Registry) and no Writ Petition/Special

Leave Petition or any other proceeding shall be entertained

by the Registry concerning the sites in the five zones after

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the stipulated date.

(5) The High Court of Delhi and all Courts subordinate

thereto will also follow the course of action set out in

direction No. 4 hereinabove.

(6) All Writ Petitions/Civil Appeals/Special Leave

Petitions and CMPs/IAs therein which concern the five zones

will stand disposed of by this order except one in which

orders have been made from time to time and the claimants of

all the matters disposed of pursuant to this direction will

be at liberty to seek further direction in the one matter

kept pending under this direction as interveners in case

such need arises in future. This is essential to regulate

such cases against NDMC.

(7) The interim stay will continue in respect of the

224 claimants whose claims have already been scrutinised by

the Committee. In respect of the other claimants out of

440, whose claims have been rejected, the status quo will be

maintained for two months after the stipulated date in

respect of those claimants who have sought review on or

before 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

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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 dose not secure a double benefit.

(9) The Committee may also draw up a list of

squatters/hawkers on the basis of their actual standing for

being accommodated in future as and when there is a vacancy

in the available space in the five zones or when such space

is expanded or new space within the five zones is cleared

for squatting/hawking. The Committee will also suggest

sites within the zones, over and above those already

identified, can be made available to accommodate such

surplus squatters/hawkers who cannot be accommodated in the

five zones on account of paucity of space. [258E-261A]

2.03. The order that the squatters/hawkers may have one

more opportunity before any final decision is taken on the

scheme prepared by MCD, it is proper that a public

notice/advertisement should issue inviting objections from

the squatters/hawkers against the proposed scheme by a date

to be stipulated therein. Such public notice/advertisement

will be issued in daily newspapers of different languages

such as English, Hind, Urdu, South-Indian languages, etc.,

as well as by printing and distributing handbills and

pamphlets in the zones identified for squatting/hawking so

that every squatter/hawker has an opportunity to file his

objections. If any, to the proposed scheme. The

advertisement would also state that if no objection is

received on or before the stipulated date, the concerned

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squatter/hawker will not be heard in the matter. The

objections or suggestions received will be tabulated

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and considered by the Committee and final decision will be

taken thereon expeditiously and the same will be placed

before this Court for approval of the scheme will or without

modification. [263H-264C]

2.05. The Committee appointed under the MCD Scheme may

process the objection already received. The claims of

squatters/hawkers who have already responded can be

scrutinised from the viewpoint of the eligibility criteria

laid down under scheme so that their priorities can be

determined.

[264D]

3.01. The claims of those who have petitioned this

Court and whose petitions are pending can also finalised to

save time. [264D]

3.02. Henceforth if any new petition is filed in regard

to MCD area, the Registry will direct copy of the petition

to be delivered to standing counsel of MCD and the matter

will be listed not earlier than 10 days before the service

of the copy unless otherwise directed by the Court. No such

mention will be made in court unless the registrar has been

intimated in advance who on such intimation will indicate if

there is such urgency that the matter cannot wait usual

listing time. [264E]

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Special Leave Petition

No. 15257 of 1987 etc. etc.

From the Judgment and Order dated 23.4.1987 of the

Delhi High Court in C.W.P No. 268 of 1987.

P.H. Parekh, Ms. Sunita Sharma, J.P. Pathak and

Bishwanatha Aggarwal for the Petitioners.

B. Sen, Govinda Mukhoty, R. K. Maheshwari, S.C. Sharma,

Sudhanshu Atre, Pradeep Aggarwal, S.K. Dubey, L.K. Gupta,

D.K. Garg, R.P Bhardwaj, Ms. A. Subhashini, A.P Singh, K.N.

Rai, M.M. Kashyap, Ms. Mridula Ray, Ms. Indra Sawhney, V.K.

Verma, Rishi Kesh, P. K. Manohar, A.S. Pundir, V.B. Saharya,

S.N. Bhatt, N. Ganpathy, Ms. Bina Gupta, Ms. Rani Jethmalani

and Ms. V.L. Menon for the Respondents.

The Judgment of the Court was delivered by

AHMADI, J> A large number of writ petitions were filed

in this Court by persons claiming a right to trade on the

pavements situate within

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the areas under the control of the Municipal Corporation of

Delhi (MCD) and the New Delhi Municipal Committee (NDMC) in

different part of the city of Delhi. These writ petitions

filed under Article 32 of the Constitution and certain

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

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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 use them for trading

as a matter of right subject of course to similar rights

possessed by every other citizen including pedestrians. The

right of a pavement-hawker is, however, subject to

reasonable restrictions under clause (6) of Article 19 of

the Constitution the State as trustee is entitled to impose

all necessary limitations on the character and extent of

user by such pavement-hawkers. The Constitution Bench,

however, clarified that there cannot be a fundamental right

of a citizen to occupy a particular place on the pavement

where he can squat and engage in trading business. Nor can

the hawker assert a fundamental right to occupy permanently

specific places on any pavement. It recognised the right

under Article 19(1)(g) of the Constitution but negatived the

submission based on Article 21. It held that the right to

carry on any trade or business and the concept of life and

personal liberty enshrined under Article 21 have no

connection whatsoever and therefore, Article 21 has no

application. In paragraph 17 Sharma, J. speaking for the

majority observed as under :

"So far as right of a hawker to transact business

while going from place to place is concerned, it

has been admittedly recognised for a long period.

Of course, that also is subject to proper

252

regulation in the interest of general convenience

of the public including health and security

considerations. What about the right to squat on

the roadside for engaging in trading business? As

was stated by this Court in Bombay Hawkers' Union

v. Bombay Municipal Corporation, [1985] 3 SCC 528

the public streets by their nomenclature and

definition are meant for the use of general public;

they are not laid to facilitate the carrying on of

private business. If hawkers were to be conceded

the right claimed by them, they could hold the

society to ransom by squatting on the busy

thoroughfares, thereby paralysing all civic life.

This is one side of the picture. On the other hand

if properly regulated according to the exigency of

the circumstances, the small traders on the

sidewalks could considerable add to the comfort and

convenience of general public by making available

ordinary articles of every day use for a

comparatively lesser price."

Kuldip Singh, J. who wrote a separate judgment

concurred with the view taken by the majority for reasons of

his own.

It is, therefore, settled law that every citizen has 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

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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 challenge based on Article 14,

19(1)(g) and 21 of the

253

Constitution several other writ petitions came to filed in

this Court and interim orders were made thereon from time to

time. NDMC has prepared a scheme, vide Resolution No. 28

dated 10th November, 1989. Pursuant to the recommendation

made by the Lok-Adalat on 19th November, 1989, this court by

its order dated 21st December, 1989 appointed a Committee to

examine the claims made by the squatters in the light of the

said scheme and the decision in Sodan Singh and identify

street pavements in different areas where street hawking

could be regulated without being a hindrance to other users.

The salient features of the NDMC scheme may be set out at

this stage as under :

" A squatter upto 1977 shall be eligible for the

allotment of a stall/kiosk while the squatters

pertaining to the years 1978 till 1980 shall be

eligible for tehbazari site, if no shop/kisok is

available. The squatters squatting since between

1981 to 1987 shall be considered for allotment for

a tehbazari site subject to availability of vacant

space.

B.The eligibility of a squatter shall be determined

by document such as receipts issued by the NDMC,

Challans by Police and Toleration Permission etc.

C.Only non-licensable trades excluding sophisticated

luxury items, imported or smuggled goods shall be

permitted i.e. pan, biri, cigarettes, chana,

moongfali, hosiery items, toys, small stationery

items, lottery tickets, fresh vegetable, uncut

fruits, packed bakery items etc. will be allowed.

No cooking and sale of food items exposing dust

causing health hazards shall be allowed. Open

space measuring 6' x 3' for the trade of pan, biri,

cigarettes will be allowed.

D.Not more than one member of the family, as defined

by the NDMC, will be eligible for benefit under the

Scheme.

E.The following percentage shall be allowed for the

purpose of reservation in the allotment.

(a) General Category 60%

(b) Schedule Cast/Schedule Tribe 12-1/2%

(C) Physically Handicapped 10%

(d) Ex-serviceman 2-1/2%

(e) War Widows 2%

(f) Freedom Fighters 3%

(g) Extreme Hardship and Humanitarian

grounds 10%"

On several pavements large number of such traders were

carrying on business since quite sometime; many of them were

stationary, some had raised wooden 'takhats' while others

were squatting on the pavements in front of shop and near

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public place. '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."

After this interim order was made a direction was given by

the order of 23rd March, 1990 that pending receipt of the

report from the Committee hawking will be permitted subject

to the same being regulated in sensitive areas. During

preliminary scrutiny, however, it was found that 'takhats'

were given on hire by those who claimed to possess them on

rentals varying from Rs.300 to Rs.1,000 per day depending on

the season or the 'takhatholders' used to carry on business

at the said 'takhats' through servants

255

while they themselves attended to their business elsewhere

and at certain places the 'takhat-holders' whose name

appeared in the petitions were non-existing i.e. the orders

were in fictitious names. That being the position the

Committee considered it imperative to undertake a strict

scrutiny to ensure that the benefit of the scheme percolated

to the deserving and not to those who were merely exploiting

and fluid situation by obtaining court orders on distorted

and inaccurate facts. The Committee, therefore, invited

claims in the form of statement on oath coupled with

original genuine documents in support of it. This was done

by public notices at the spot and through counsel in case of

pending cases. In addition local visits were made to verify

presence of the claimant at the site where he professed to

carry on business and if not found at such visits he was

asked to substantiate his claim by proof of challan, fine

receipts or tehbazari receipts. The underlying idea was to

eliminate bogus and fictitious claims. Records of NDMC were

also checked for cross verification.

A grievance was however, made that the procedure

adopted by the Committee for scrutinising the claims made by

the pavement-traders was too strict and resulted in

injustice even to genuine claimants. According to the

petitioners the strict standard adopted by the Thareja

Committee for recognising the claim of a pavement-hawker

overlooked the fact that most of the pavement-hawkers were

poor and illiterate persons who could not be expected to

have maintained proper records of receipts, challans, etc.,

issued by the police or other local authorities to support

their claims. Counsel for the pavement-hawkers, therefore,

submitted that the standard of proof expected by the Thareja

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Committee was unrealistic and it was essential to modify the

same to do complete justice to the concerned parties. 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

256

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 in mind that such

minimum proof as would enable the Committee to weed out

bogus claims from genuine ones had to be insisted upon to

maintain credibility in regard to the scrutiny. As stated

earlier preliminary enquiry had revealed large scale

manipulation and fabrication of documents by bogus and

unscrupulous claimants who desired to make a windfall by

abusing the process. It was, therefore, essential to lay

down the minimum proof which the Committee would expect for

accepting any claim put forth before it. It cannot,

therefore, be said that the minimum proof expected by the

Committee in the form of atleast one genuine receipt, police

challans, toleration slip, tehbazari receipt, etc., during a

gap of one year or so was unrealistic. An exception was

made by the Committee in the case of a claimant who produced

a large number of such documents for a regular period even

though the same was not available in a given year where

satisfactory explanation was offered. This was absolutely

necessary as large scale irregularities had surfaced during

the preliminary survey undertaken by the Committee. In the

circumstances we are not inclined to think that the standard

of proof required by the Committee was unduly harsh or

unrealistic.

Of the 460 claims registered with the Committee, 458

related to Resolution No. 28 while the remaining two

concerned contempt proceedings. Out of the 458 claims the

Committee scrutinised 440 claims out of which it upheld as

many as 114 claims for allotment of stalls/kiosks/sites,

etc., (area mentioned for each claimant) and 110 claims for

other reliefs referred to in Resolution No. 28. Seventeen

claims in respect of Sarojini Nagar area could not be

verified as the claimants contended that they were not in a

position to meet the minimum proof standard of producing

atleast one genuine document in a time gap of one year as

they were under the patronage of one Arjan Dass, a local

politician, and hence they were never disturbed by the

police or any other authority and, therefore, they were not

in a position to offer proof of the type insisted upon by

the Committee. The non-cooperation by the N.D.M.C. added to

the problems of the Committee. The Committee has, therefore,

sought the guidance of the

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Court to resolve this deadlock. In view of the peculiar

circumstances mentioned by the 17 claimants, the Committee

need not feel inhibited by the nature 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

addition 228 open tehbazari permission were agreed upon.

Further 106 squatters were to be accommodated on

compassionate grounds. In addition squatters rehabilitated

in zone 1 and existing milk-booths were to be continued. In

this manner the needs of those in NDMC area have been

adequately attended to. Yet there exist a large number of

squatters in different parts of NDMC area, some of whom have

the protection of stay orders secured from courts, and their

cases were to be worked out on the basis of the eligibility

criteria to be formulated by a Sub-Committee of NDMC.

The grievance made by counsel for squatters/hawkers has

been twofold. In the first place they complain against the

strict standard of proof insisted upon by Mr. Thareja in

support of the claim and secondly against the area

identified for carrying on business by these squatters and

hawkers being considerably restricted. It is pointed out

that on account of the strict standard of proof expected by

the Thareja Committee, out of 440 claims examined by that

body only 224 claims (114 for kiosks/sites, etc + 110 for

other reliefs) have been cleared and the rest have been

rejected. But as pointed out earlier the standard and

nature of proof was determined under

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Resolution No. 28 and the Thareja Committee had merely gone

by it. This difficulty, however, manifested itself when it

came to scrutinising the 17 claims concerning the Sarojini

Nagar area. Some directions in this behalf have to be

given. It was contended that if strict proof as provided by

the guidelines of Resolution No. 28 is not insisted upon in

respect of Sarojini Nagar area claimants, there is no reason

why it should not be relaxed in respect of the other

claimants whose claims have been rejected. Counsel for

NDMC, however, pointed out that the ground situation in

Sarojini Nagar is completely different land incomparable

with other areas in view of the peculiarity of the

circumstance relied on.

We have given our anxious consideration to the rival

point of view and having regard to the fact that we are

dealing with the question of livelihood and survival of

large number of families, we do not think we would not be

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justified if we adopt a compassionate approach so as to

ensure that genuine squatters/hawkers are not denied their

daily bread at the alter of technicalities while at the same

time ensuring that those who are out to exploit and abuse

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

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the claims on the basis thereof. In doing so fresh

claims, if any, received may also be scrutinised;

(3)Public advertisements will be issued by the

Committee in local newspapers having wide

circulation inviting claims from squatters/hawkers

who have not preferred claims or filed proceedings

in court by a date to be stipulated therein, such

claims must ofcourse be consistent with the

eligibility criteria laid down in Resolution No.28.

In addition to such public advertisement to be

issued in newspapers of different languages such as

English, Hind, Urdu, South-Indian languages, etc.,

to be determined by the Committee, handbills and

pamphlets shall also be printed and distributed and

pasted in different parts of the five zones

selected for squatting/hawking inviting claims by

the stipulated date. The advertisements/pamphlets,

etc. will also cover claimants falling within

direction (1) and (2) above;

(4)The Registry of this Court will not entertain any

further Writ Petitions/Special Leave Petitions from

any squatter or hawker concerning the sites chosen

in the five zones mentioned hereinabove but will

instead direct the petitioners to approach the

Thareja Committee if they have moved such Writ

Petitions/Special Leave Petitions before the date

stipulated by the Committee (which date will be

communicated to the Registry) and no Writ

Petition/Special Leave Petition or any other

proceeding shall be entertained by the Registry

concerning the sites in the five zones after the

stipulated date:

(5)The High Court of Delhi and all Courts subordinate

thereto will also follow the course of action set

out in direction No. 4 hereinabove;

(6)All Writ Petitions/Civil Appeals/ Special Leave

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Petitions and CMPs/IAs there in which concern the

five zones will stand disposed of by this order

except one in which orders have been made from time

to time and the claimant of all the matters

disposed of pursuant to this direction will be at

liberty to seek further directions in the one

matter kept

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pending under this direction as interveners in case

such need arised in future. This is essential to

regulate such cases against NDMC;

(7)The interim stay orders will continue in respect of

the 224 claimants whose claims have already been

scurtinised by the Committee. In respect of the

other claimants out of 440 whose claim have been

rejected the status quo will be maintained for two

months 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 the basis of their actual

standing for being accommodated in future as and

when there is a vacancy in the available space in

the five zones or when such space is expanded or

new space within the five zones is cleared for

squatting/hawking. The Committee will also suggest

sites within the zones, over and above those

already identified, which can be made available to

accommodate such surplus squatters/hawkers who

cannot be accommodated in the

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five zones on account of paucity of space.

All the NDMC cases falling under the zones created

under Resolution No.28 will stand disposed of accordingly by

this order with no order as to costs. The advertisement

cost will be borne by NDMC.

We now move on to consider the cases of

squatters/hawkers carrying on their business activity in the

territory within the administrative control of the MCD. The

MCD has, within its jurisdiction, the entire Union Territory

of Delhi minus the area within the administrative control of

NDMC and Delhi Cantt. The area falling under the

administrative control of MCD has a large belt of

agricultural lands and, therefore, any scheme to be prepared

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in regard to facilitating trade by squatters/hawkers must be

confined to the urban areas only. It appears that after the

partition of the country there was large influx of

population to Delhi and the local authority was constrained

to evolve certain norms to rehabilitate such people.

Squatting was, therefore, permitted on tehbazari system.

Keeping this in view the MCD has now evolved a scheme of

open tehbazari consisting of grant of permission to squat

on a earmarked spot of the area of 6' x 4' for the purpose

of carrying on business. On gazetted holidays, festival

days and Sunday, permission to squat is granted in various

areas under what is known as casual tehbazari. Weekly

bazars are organised in certain specified areas once in a

week when the regular shops are closed. 67 such weekly

bazars are held in different parts of the city of Delhi.

Survey has been carried out by the MCD officials from time

to time to identify the person actually squatting in

different areas on municipal lands. The last such survey

was conducted on December 23, 1982. In preparing the scheme,

the MCD has determined the categories of persons to be

considered for grant of permission to squat, subject

ofcourse to availability of space. The criteria evolved by

the MCD is stated 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

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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)Shahdara Zone,

(vii) Sadar Paharganj Zone, (viii) West Zone, (ix) Civil

Lines Zone, and (x) Najafgarh Zone. In all 288 squatting

areas have been identified in the zones covering 12369 -6' x

4' spots for rehabilitation of squatters. Of these zones

some zone like City Zone etc.,comprise of extremely busy

shopping centres with narrow roads like Chandni Chowk, Khari

Baoli, etc. which on account of severe congestion do not

permit even smooth movement of vehicular and pedestrian

traffic making it impossible to allocate space for

squatting/hawking purposes. Similar problems with varying

degrees have to be countenanced in certain other areas as

well which cannot accommodate the squatters/hawkers from

other zones are not willing to shift making it difficult for

the MCD to relieve the congestion found in certain zones

where squatters/hawkers are found in large numbers, far more

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than can be accommodated. Keeping these factors in mind and

the directions of the court issued from time to time to MCD

prepared a scheme for regulating squatting/hawking business

in Delhi and appointed a committee for the identification of

squatting/nonsquatting area in different zones. This

Committee was expected to take a final decision regarding

the areas identified for squatting/hawking. This was to be

done in consultation with the Commissioner of Police so that

the needs of vehicular traffic and other police/health

problems could be taken care of. The criteria for priority

allotment has also been determined as under :

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(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;

(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 are found on the date of

survey would also be considered for grant of open

tehbazari of 6' x 4' 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)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 prepared by MCD we think it is proper that a

public

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notice/advertisement should issue inviting objections from

the squatters/hawkers against the proposed scheme by a date

to be stipulated therein. Such public notice/advertisement

will be issued in daily newspapers of different languages

such as English, Hindi, Urdu, South-Indian-languages, etc.,

as well as by printing and distributing handbills and

pamphlets in the zones identified for squatting/hawking so

that every squatter/hawker has an opportunity to file his

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objections, if any, to the proposed scheme. The

advertisement would also state that if no objection is

received on or before the stipulated date, the concerned

squatter/hawker will not be heard in the matter. The

objections or suggestions received will be tabulated and

considered by the Committee and a final decision will be

taken thereon expeditiously and the same will be placed

before this Court for approval of the scheme with or without

modification.

However, in the meantime, the Committee appointed under

the MCD Scheme may process the objections already received.

The claims of squatters/hawkers who have already responded

can be scrutinised from the viewpoint of the eligibility

criteria laid down under the scheme so that their priorities

can be determined. So also the claims of those who have

petitioned this Court and whose petitions are pending can

also be finalised to save time. Henceforth if any new

petitions is filed in regard to MCD area, the Registry of

this Court will direct copy of the petition to be delivered

to standing counsel of MCD and the matter will be listed not

earlier than 10 days before the service of the copy unless

otherwise directed by the Court. No such mention will be

made in Court unless the Registrar has been intimated in

advance who on such intimation will indicate if there is

such urgency that the matter cannot wait usual listing time.

The above order will guide all concerned including the

Registry of this Court so far as cases of squatters/hawkers

are concerned.

V.V.R Petitions disposed of.

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