Manoj Kumar v. Ndmc and Ors

judgment. •4. . To give a brief background of the dispute, learned counsel foi the ; respondent/IMDMCwalked this Court through some prominentdecisions-ol the Supreme Court rendered from time to time, whicfi I'elate to pavement •bV-P.(C) •4743/201J., 5254/2011 & connected malLers Pnge 4 of 2B X-' ^squatliers/hawkers,starting fron', the decision in the case of SoclML vs. ndMC.,&OS. reiDortedas (1998)2SCC 727, the interim-orderdaled :03.03.Z006 passed by the Supreme Court in W-P-iC) 1699/1987 •entitledc.,^Vir M.H.n 8. Ors. Vs. MCO. the final judgmentin the case of ^rlhir Madan, fsupral reported as (2009) 17 SCC b97 aiu.l \ds\.\), ^judgmentdated 08:10.2^010passed in the case of Gamda RmisupsL.

¶5. Learned counselfor the respondent/NDMCvehementlyopposed the prayer of the petitioners/vendorsfor grant of interim orders restraining the respondent/ND|v|Cfrom removing them, from the sites occu|H0d ijy then, till the enactment of an appropriate legislation, in terms of ti.. directions issued by the Supreme Court in the. case of Gamda lAarn She particularly-referred to the observations made by the •'supremeCourt in paras 40 and 41 of the judgmentin the case ot bodmi :Singh .(supra)., which dealt'with the immediate eviction of. unaulliorized squatters/hawlcersand laid emphasison the fact that mthe said case, the :Supreme Court had directed removal of unautliorizedsquatters/hawkers without awaiting final allotmentof sites to be allotted to eligibleclaimants •'at d'-ie places recommended by the Thareja Committee or suggested by -^theNDlviC.

¶6Again,"in' the interim order dated 03.03.2006 passed in Sud.hjr MadaiVs case fsupra), the following observation made by the Supreme Court was highlighted by the counsel for the respondenl:/l\iDMC:- W.P.(CJ 4743/2011, 5254/2011 & connected matters Pmge 5 oT 2'lf Vr ''While we undertake this ex'fercise, we diiect tit-Authorities to see to it ttiat those persons, wlio dit -.carrying on hawi<ing activities or who are squatting on public land without any authority, even in accordance with the present day schenie in force, are removed rorthwith. This includes unauthorized hawking, squatting on public streets, footpaths and public paiks, includingplayground.We directthe Delhi /-Ndrnmistration to take steps immediatelyin collaborationwith MCI3 and NDMC with necessary assistance from Delhi Police to clear the roads, streets, footpaths, paij<s etc, by unauttiolized 0ccupants/sq ua11ei"s/liawkers."

¶7/As to the judgment dated 17.05.2007 rendered in the case ot .Su.dhir..Mad_a!iX5J-iBraLmuch emphasis was laid by'the counsel foi the respondent/NDMC on paras 28 to 30 and 35, which are reproduced hereinbelow for ready reference "28. The New Delhi Municipal Committee has also submitted its Scheme. We have considered the Scheme subimitted before us. The area which falls under NDMC. does not create problems such as those in the areas under MCD. However, in the said Scheme reference lias been made to persons who do not tiave permission •under Section 225 or licence under Section 330 of the NDMC Act, 1994 but who are unauthoi'isedly continuing • to carry on business as havjkers/streetvendors.^ fhey have been described as those who are "tolerated" in the dXlDMC area. We faif to understand why any person wlio violates the law should be tolerated. Either they sliould be compelled to obey the law or the law may be suitably amended, if it is found to create undue liardsl'iip. 1he problems need to be addressed by the legislature or the rulemaking authority. We, therefore, observe tliat if 11. is felt that the persons who fall in this category lequire special protection, tfie /Act may be suitably amended to cover their cases or else number of' such illegal squatters may increase from time to time. l/l/.P-fC; 4743/2011, 5254/2011 Ik connected mailers Psge 6 of 28

¶29There has -been no. serious objection to the Scheme submitted by IMDI^C which is a comprehensive scheme. Certain directions have, however, been sought Por hom this Court. We approve the Scheme submitted by IMDMC. '

¶30It is submitted before us that the Schemes whicli have been approved by this Court must be SLiirriect to any /Act or rules that may. be framed in consona.ncewitli IMational Policy on Urban Street Vendors, .it goes without saying that we have approved the Schenies as framed by i^lCD and IMDIMC. If the legislature intervenes and' frames anotber schen'ie or regulations governing such Schemes, that will certainly supersede Schemes prepared by MCD and NDMC. It is well settled that any administrative action is always subject to law that may be framed by the competent legislature.

¶35Subject to the aforesaid modifications/changesii'i the schemes' submitted -by MCD and NDMC, the same are approved: The said authorities shall now take • appropriatesteps to irnplen'ientthe Scheme forthwiLh. In case of any difficulty faced by them in implementing the schemes, they shall have the liberty to apply to l.liis Court."

¶8Lastly, in the recent judgment in tfie case of GajjidaJi^IJ learned counsel for the respondent/NDMC specifically relied .upon pai'as .3.0, 32, 50 to 66 to state that the Supreme Court was conscious of Lh(f.i fact that ,a structured regulation and legislation is urgently requii ed ,to control and regulate the fundamental right of hawking. She also pointed out that three tier disputes redressal mechanisni set out in the affidavit filed by the then Chairperson of tfie NDMC was takei'i note of Ijy • I the Supreme Court in para 72 of the aforesaid judgment and in para 73, it was then observed as belo\A/;- W.P.(C) 4743/2011, 5254/2011 & connected matters rc/ "73. In paragraph 12 of the'arPidavltit has Ijeen sLalec that there shall be an A\ppeliate /Authority which sliaii attend to th.e redressal of grievances oP squatteis, hawkers, traders, residents or any other person by bearing appeals against the decision of the Vending Comnnittee(i^lain). Paragraph 12 of that affidavitis set out below:- There shall be an Appellate /-Vutl'iorlty. On l.he forwarding' of pebtions received by Chairperson, this /-Xuthority shall attend to redressal of grievances of squatters, hawk.eis, traders, residents or any other person. Ibe /Authority' shall also hear appeals against tl)e decision'of Vending Comhiittee (Main). l3ecisions of this /Authorityunless challengedbefore a l-ligher Forum or in any .CpmipetentCourt, sliall be final. This Authority shall be initially headed by a peison appointed by the Chairperson having at least lU years legal• or judicial background-There can be more than one member in this Autliority.'

¶9' After making the' aforesaid observations, in paras 74 to 76 of tlie judgment,the SupremeCourt went on to observe as below-:- "74. In the said affidavit, which was affirmed befoie •this Court on 24^'' August, 2010 it has been stated that MDMC sfiall 'comply with the orders wl'iich would be passed by the adjudicatorymechanism conten'iplatedin the.scheme and which has been approved by tliis Court Por the NDMC area, unless such orders are made subject matter of challenge before a higher forum or in any •other competent Court.

¶75In view of such schemes,' hawkers, squattei's and vendors must abide by Dispute Redi'essal scheme mentioned above. There should not be any direct approach to this Court by way of fresli petitior) or I/-\s, bypassing tl'ie Dispute i-^edressal Mechanism provided in the scheme. W.P.CO 4743/2011, 5254/2011 & connected matl.ers FageBof 28 • )

¶76However, before 30^" June, 2011, the appropriate Government is to enact a law on the basis of t.fie i3ill mentioned above, or on the basis ot any amendment thereof so that the hawkers may precisely know tlie contours of their rights."

¶10It was thus sought to be contended on behalT ol respondent/NDMCthat there can be no vacuum as far as regulation ol trade of street hawkers/vendorsin the MDMC .jurisdictionis concernei.land the failure on the part of the legislatureto abide by the timeline set out by the Supreme Court in the case of Gainda P-.aniJ.supra),by putting m place a statute on or before 30.06.2011, cannot be interprel'.ed by the petitioners/vendors to mean that they can continue their trade unhindered at any place of their choice in the MDMC jurisdiction, in an unregulated manner and without any obstruction or ob.jection from the • MDMC.

¶11I"earned counsel foi" the responderit/NDMCpailicularly refeired l.o paras 74 and 75 of the aforesaid judgment to state that the (.lisi;)uLe redressal scberne, noticed by the Supreme Court in para lb was tlie one ttiat was legally functioning in MDi^lC jurisdiction and wliicti was taken note of by the Court in the preceding para 74. In other words, she stated that the scheme as set out in the affidavit dated 24.08.2010, filed l,>y tlie then Chairperson of NDMC before tlie Supreme Court in Gaijida .Kain.'.s case ...(supra), was the one wliich was finally approved by the Suprenie Court. She further submitted that assuming, without admitting, th'at tlie 47-43/'2011, S2S^^/2011

¶8connecled mBlfers Page 9 of 'J.H A"' dispute redressaischeme set out by the I^DMC had lapsed on :30.6.20n, as claimed by the petitioners,then the MDMC Act provides an adequate fallback to ensure orderly managementoP vendors in the area. Speciiu. rePerencewas made in this regard to the provisionscontained in .Sections 221, 224, 225 and,226 oP the said Act.

¶12It was Purtherargued by the counsel Por the respondent/MI.^MC..-that the applicationfiled by the NDMC bePore the Supreme Court in ,luly 20:1 t praying inter alia Por extension of time to regulate hawkers/squattersin the NDMC area, as per the scheme mentioned in the judgmentin Gain_da Ram's rase (supral, till the enactment oP a law by the legislaturein that regard, had 'not yet been finally disposed of by the Supreme Court at tlie tiiTie of passing of the status quo order dated 15.07.2011 and similaily, the other application filed by one, of the hawkers/vendorspraying miei alia for restraining the respondent/NDMCfrom granting Tehljazarirights to the winners of the'lucky draw of lots for allotment, wfiich was to be held on

12.05.2011 • or any date thereafter, was also pending consideration before the Suprenie Court. Hence, no finality could Jje attached to the order dated 15.7.2011 which can only be considered an interim measure till tlie final disposal of the aforesaid applications or tfie enactment of a legislation.

¶13• On merits, learned counsel for the respondent/NDMC refei'i ed to the affidavit dated

01.08.2011 filed by Director (Enforcement), Nt.'MC, WU.P.(C) 4743/2011, 5254/2011 &. connected inalters Page lO of 2H K-wherein it was stated that pursuant to the public notice issued by the IMDMC inviting applications under the NDMC Urban Stieet Vending Scheme in the year 2007, the ,respondent/NDMChad received. 4J67 applications.The docunnents required by the applicants for registration under the Schen.-ie included a proof of age, documentary proof/afhdovit for the purpose of annual income, proof of residence, proof in su|Ji.ioiti.if special categorieslike handicapped,Kashmiri migrants etc. and proof of squatting in the NDMC area, if any. In para ,4 of the aforesaid affidavit, the following criteria approved/adoptedby the Vending Committee to shortlist the eligible applicants is set out:-"4. That the criteria approved/adopted by the Vending Committee to shortlist eligible applicants is as • • • under;-

(i) The applicants sfiould be resident of Delhi witli his name registered in' electoral rolls as per abstract of photo E-Roll or ERO certificate.

(ii) The applicant should be a major, viz. witfi over .1.8 years of - age as per' valid birth certificate or age certificate or school certificate etc.

(iii) The applicant should be a needy as per income • records of iDC (Revenue) or as vulnerability records of Government of NCT of Delhi (Samajik Suvidlia Sangairi; vulnerable and most vulnerable category).

(iv) The apTjIicant should be registered as per NDMC Street'Vendors Scheme. The policy verification of the • cipplicant should be available.

(v) The applicant or his dependent fairiily nieinbei" . , should not be employed or should not have any otliei" tehbazari/yending or any other business premises in Delhi as per record verification of NDMC/MCD. W.P-(C) 4743/2011, 5254/2011 a connecie.d Page :i 1 of 2H

(vi) Preference•will be. given to applicants who-are pliysically handicapped or widows or senior citizens above years or Kashmiri migrants or SC/SI (necessary certificate to be submitted and relaxation may be given in the above criteria)."

¶14/As per the respondent/NDMC, the category-wise list of eligible shortlisted applicants in terms of the aforesaid criteria totalled to ,387» applicants. The affidavit dated

01.08.20:1.1, states'- tliat l.he respondent/NDMChas identified 183, new spaces, in addition to the 20.;.! rernaining'.spcicesidentifiedby the Thareja.Committeein the IMDMC area, which were available' for allotment, lihus taking the total number. o( •availablespaces to 386. It was furtherstated that due to factois lil<e de listing of the Parliament.Street on security grounds, construction of : flyovers and Metro Stationsat various locations in the NDMC jurisdiction, the number of authorized .te/-;/jaza/7sguatters has changed froni to 404 in number. The. number of applicants, who the responderiiyiMDMC clainns, are vending unauthorisedly at Connaught Place, Saro'jini Nagar, Parliament Street and Janpath areas and in whose, favour, sl:al:us qua orders are operating, is stated to be 323 in number. Ifie affidavit assei l.s that simp.ly because the names of the petitioners, who are registered wilh ND-MC, figure in the eligibility list drawn by the respondent/NL.')MC, cannot be treated as proof of their regularly vending in tl'ie NIDM(~ area and nor does it confer on them any enforceable vested right to en.sui"e a vending space for them in the NDMC area, which is directly dependent o 11 W.p. (C).4743/2011, 5254/2011 Si connected matters Frige. 12 vi' 2 i} r^' the number of spaces available. Thus, it was contended that neither the possessionof any number of challans, nor the absence thereof'can make a ditrei-ence, for the reason that challans cannot form the basis Tor the petitioners to claim any vested legal rigiit to squat at a given space.

¶15Counsel for the respondent/NDMC asserted that the present petitions are not maintainable inasmuch as the petitioners have an equally effi.cacious. alternate ' remedy of approaching ttie ap|:.)eilate authority constituted by the Chairperson, NDI^IC, for redressal o( their grievances and failure on their-part to have approached tlie .Vending Committee is not on account of the fact that the said CoiTirnitteeincluding the appellateauttiorityis not functioning,but because they have found it more convenient to bypass the aforesaid forum and' approach tfiis Court directly, which is not permissible. She stated that extensive measures have beein taken by the respondent/NDMC to constitute ttie adju(Jicatory rnecfianism by way of a three tier system in the following manner;- • 1. Vending Sub-Committee (Site of Spaces), '2. ' Vending Sub-Committee (Heath and Hygiene) and .3. Vending Sub-Committee (Enforcement).' •16, She stated that creation of tfie aforesaid three Vending Sul.)- Committees, Vending Committee

(Main), as also of tl'ie appellate authority which was constituted to redress grievances of tlie sqi.iattei's, hawkers, traders, residents or any other person against tlie decision (if V\I.P.(C) 47A3/7.0li, 5254/2011 & connected matters Page 13 of 2U : • • V , the Vending Committee(l^lain), was .placed bePore the SuprenieCouit fui considerationand the said three tier adjudicatorymechanisni was duly approved in the judgment of Gainda Flam (suijra).

¶17Per contra, learned counsels for the petitioners/veiidois, who appeared,on different dates, vehemently opposed the aforesaid stand taken by the respondent/MDMC'and asserted that the scheme Ploated by the respondent/NDiviCfor^ regulating'vendingactivities in its jurisdiction .had lapsed on 30-06.2011in the absence oP the enactmentof a legislation •as per directionsof the SupremeCourt in the case oP GMlld^Ram.CsUJjra and'as on date, there js no^scheitiein existence, .it was canvassed that the implication of the aforesaid order oP status,quo passed .I.iy the SupremeCourt on 15.07.2011can only.n-ieanthat irrespectiveoP the iact whether the 'squatting is legal of illegal, the same be permitted to Continue' on an 'as is where is' basis, and such status quo is to be maintained by all the parties till a law is Pramed by. the legislatuic. IS. Mr. . B.B.. Sawhney, Sr. Advocate appearing loi' petitioners/vendors submitted-that in the case of Gainda Pvarn (.s_upj;aX,.the Supreme Court had directed that the appropriate government rnust enact a law on or before 30.05.2011 so that tfie hawkers may precisely know contours' of their fights, hence dispute redressal rnecPinnism provided for in the scheme mentioned in the aforesaid judgment could operate only upto

30.06.2011 and thereaPter, said scheme would W/.P.(C) 4743/2011, 5254/2011 Si cannecied matters automaticallystand lapsed^ He stated that no other inteipretatloi.can b« given to tine prclerdated 15.07.2011,directingmaintenance statusquo, in view oP the qualifying-words,"as it is obtainingtoday . lie aigued Lhdt if. the scheme was continuing to' operate, aS' claimed by the Icaincd counsellor the respondent/NDMC,then there was no good reason for the respondent/NDMCto have refrained from holding a draw of lots, which was.slatedfor the same day,-i.e.,15.07.2011,and that fact of the matter is that even the respondent/NDMChad understood the status quo order to mean that there is no scheme in.place after 30.6.2011,for the reason ^that in para 68 of the 'aforesaid judgment in the case of Gamda^.Kdm (-supra), all the writ petitionsand the interim applicationsfiled before tlie SupremeCourt were disposedof with clear and specificcliiectionstliul the problem of hawking and street.vending could be regulated by the •schemes framed by the NDMC and MCD only upto 30.06.2011 and not • thereafter. •It was asserted on behalf of the petitioners/vendorsthat as on date, the directions of the Supreirie Court that status quo is to be n-iaintainedby the parties can only be given one interpretation,wliich rs that till a law is ultimately enacted by the Parliament, irrespective ol theii legal status, all the petitioners/vendorswould be permitted to continue squatting/hawking at .the sites that have been occupied by tfiem. ;;l.9-Insofar as the composition of the dispute redr'essal n'leclianisrn is concerned; learned Senioi" Advocate for tl'ie petitioners subrriitted that contrary to understanding of respondent/NDMC, tlie sclieme •W.P.(C) 4743/2011, S254/2011 Si connected matters Page. 15 vf 20 .reproducedat paras 72 and 73 in the judgmentin the case oP Gajnda[^n .(sugra),, was not the one which was actually recognized i^y the bu|;)renie Court, and rather it is the dispute redressalscheme mentionedin para 7b oF the aforesaid judgment i.e., '• a scheme Por urban street vendors Poi NDMC area as formulated in the year 2006, which was ultimately approved by the Supreme Court on 17.05.2007, in the case oP.Sudhir Madap (supraL which is the scheme wPiich Pinds mention specificallyin the following para 74 and is the ohe approved by the SupremeCourt. It ' was contendedthat even otherwise,the NationalCapitalTerritoryoP Delhi Laws (Special l--'rovisions)Act, 2011 (hereinaPterreferred to as ^Special •ProvSEUoinsAc^) comes to the rescue of the petitioners for the reason • that.,sub-clause(2) of Section 3 o,P the Special Pi-ovisionsAct niandates ^maintenance oP •status quo as on 01.01.2006, notwithstanding .any judgment, decree or order of any court, in respect of encroaclimentui unauthorized development. Thus, it was submitted on-behalP ,oP the petitioners/vendorsthat they vuere entitled to grant oP interim protection till the enactment of a legislation to regulate hawking/vending activities in urban streets in Delhi on the basis of the National Policy on Urban Street Vendors, 2009 framed on 17.06.2009'and the Special Provisions Act.

¶20' VVith reference to Special Provisions A,ct, leained Senior Advocate for tPie petitioners stated that-the phrase, "unautPiorized developnient" used in the definition clause has to be seen in the same context as tfie ohe in which the phrase "encroachment" has been defined, • W.P.CC) ^17^3/2011, 5254/2011 ffi connected matters Page 16 of IS V• wherein it is mentionedthat putting up of temporary,semi-temporaryor permanentStructure for residential.use or commercial use or any other use, and the placementof goods on the pavements by the petitionersis liable'to be termed as unauthorizeduse for maintainingstatus quo• undei •the Special ProvisionsAct' Much emphasis was laid on tlie averments made by the respondent/MDMCin its interim applicationfiled before the .SupremeCourt in Gainda Kam^s case_.(^|3ra).in July 2011, to submit tliat the respohdent/NDMCitself ha.d stated in the said application that the •scheme had lapsed and therefore, the only interpretation^that can be. gh/en to the status quo order passed by the Supreme Couit on '15.07.2011 can be that no scheme would exist after 30.06.2011 and •thus, the benefitof the Special Provisions/Act ought to be extended to the .• petitioners. He submitted that the phrase•^street vendors' has been cleaHy defined under the National Policy/on Urban Street Vendors, 2009. Reliance was placed in the case of Pj.trl Vy_a|2aijy!aMaLDMlll--.B^^^ :Mrn Triwn Hall 8. Ors. reported'as (2009) 12 SCC 475 and tfie provisionsof the Special.Provisions/Act to submit that even the Supreme •Xourt had' recognized'the fact that the Special ProvisionsAct is the only Central law governing the field and' it would have primacy over other •Statutes and administrative orders. It is thus stated that the provisions ' of tlie NDMC /Act cannot be invoked by the respondent/NDMCas the said ./Act is not in.consonance with /Article 96 of the Constitution of India and furthermore, the Special Provisi'ons'Act being valid till the end of 'W.P-(,CJ ^•743/2011, 5254/2011 ® connected matters Page 17 of 2U r-1^ /•' December2011, no orders in derogationof tine provisionsof U,e s.ii.l Act can be passed. |v||-.' s.K. Tripathi, /Advocate appearing •Por some oP itlie petitioners/vendorssought.to embellish,the submissionsoP Mr.Sawhney, Sr.Advocate and relied on the orders passed in W,.P.(«-) i44yV.--0ii entitled Mnhrl. Ismail vs. NDM_C_lk_,.Qi:5^ to urge that tlie "Appellate Authority" constituted under the dispute redressal mechanism Por the NDMC area, has not been functioning,which Pact-he stated is borne out from a perusal of the order dated 08.03.2011 passed in the .aPoresaid' case, wherein the Court took notice oP the claim oP the petitioner/vendor therein-to the ePPect that inspite oP orders passed.by tlie Appellate Authority allowing squatting at a particularsite, till a Pinal deterniination by the Vending Connmitteeas to-his eligibility,the respondent/MDMLamJ the police were disturbing his activities. In the aPoresaid order, the statement of the counsel Por the respondent/NDMCwas recorded t.o the ePfect that the appellateauthority,whose order was being relied upon by the petitionerthei'ein,was constitutedinitiallyPor the MCD areas and later started PunctioningPor the NDMC areas as well Por the.reason that at-that time, there was no separate-.appellate authority Por the NDMC areas, hut subsequently, in accordance with the scheme approved by tlie Supi'enie Court, Cfiairperson,. NDMC had constituted a separate a|.'.)pellate authority for • the NDMC areas. Therefore, appellate autlK.)rity appointed earlier had ceased to have jurisdiction qua tlie NDMC areas. W.P.(CJ 4743/2011^ 5254-/2011 Bt connected nta!:lers Faije .1.8 iff 28 was thus, contended on behalf oP the petitioners/vendors thai, the aPoresaid order clearly indicates that the appellate authority in the areas is not functioning.

¶22Reliance was also placed on the minutes of the nieetirig of tfie Vending Committeedated 11.03.2010,to claim that if the fact of whether there was actual squatting/vending was verified by the Committee and if the nan-ies of the petitio-ners/vendorsfigured in the eligibilitylist prepared by the respondent/NDMCfor holding the draw of lots, then it did not lie in the mouth of the respondent/NDMCto claim that the petitioners, wlio had been verified and found to be eligible, were not entitled to squat at vai'ious sites in the NDMC area after 30.06.2011.

¶23In rebuttal, counsel for the-respondent/NDMC disputed tlie contentions of the petitioners/vendors and while reiterating her earlier •submissions, asserted that the petitioners did not have any legally enforceable right, created on the basis of the eligibility list drawn by NDMC, for claiming, grant of inteiim orders in their favour. .She again referred to paras 68, 69, 75, 76 and 78 of the judgment in tfie case of Gain da Ram, (supra), to emphasize that when aforesaid paras are read collectively, it is clear that petitioners cahnot claim an entitlement to any interim orders as sought by them in tl'ie iTiesent proceedings. She further stated that even otherwise, tfie .Special Provisions Act relied , upon by petitioners' has duly recognized •the W.P.(C} 4-74-3/201.t^ 52S'^/2U1X © connected rnatlers Page 19 aT 2H a: schemes prepared by the local authorities in the National Capital Terrilory of Delhi Tor regulation oP urban street vendors. To substantiate the said submission, she drew the attention oP tliis Court to the [preamble oP tPie aPoi'esaid /Act, which mentions the Pact that all the schemes |,:)repnred tiy local authorities in National Capital Territory uP Delhi, Por regulation of urban sti'eet vendors in accordance witli the National I'olicy on Urban Street Vendors, 2009 and the Master Plan Por Dellii 202.1, have been implemented and Purther that more time is required Por propei' implementation' oP the schemes regarding hawkers and urban street vendors. .

¶24/-\ specific rePerence was made by the learned counsel Poi' tlie respondent/NDMCto Section 2(l)(c) of the Special ProvisionsAct, which defines the phrase "encroachment" to claim that it does not covci' the petitioners herein, who are squatters-. Further rePerencewas made l.o tlie provision of Section 3 of the Special Provisions /-\ct, wliich contains a non obstante clause, to state that status quo with regard to tPie encroacPimeiit or unauthorized development as on 01.01.2006, mentioned in the sajd provision, was in . the context of dePinition oP tlie r.ilii"ase.s "encroachment" and "unauthoiized development" set out in tlie dePinition clause at Sections 2(l)(c) and 2(l)(i) respectively oP Llie S|:)ecial Pr'ovisions /Act and ttius, the petitioners/vendoi's did not qualiPy under the aPoresaid enactment Por claiming protection as noiie of the ingredients set out in the provisions oP the aPoresaid enactment are Pound to exist in Lheii' WJ'.(C) 4743/2011, 525^!/noil Si connected ntaiLers Page 20 iff 2U case. It was submitted-that the Special Provisions Act, whicli came into etrect in the year 2007' and has been extended froni time to time and lastly, till .December 2011, does not give permission to persons t(.) le -slarl: any activity once they , have been removed by the civic aLitl'ioi'il.y and similarly, the Scheme of 2009 does not entitle the registrants to sciuat unless they have been allotted a specific site. In support of the aloresaid submission, reliance was place on the judgment in ttie case ot MCD.._y5, Gurnam. Kaur reported as (1989) 1 SCC 101. For the iJi,MT.iose oP .interpreting the nneaning Of the phrase,-"structure", reference was n'lade to the judgment of the Supreme ' Court in the case of •MuniciiJal Corporation of Greater Bombay & Ors. vs. Indian OiLCor&QX^iiLgil reported as MR 1991-SC. 686. For the purpose of understandingthe 'I , • • :expression,'status quo','referencewas made to the judginent in the case of l^ie.s'srs Bharat Cokinci Coal Limited vs. State of Biha.il6c_Oj::5^reporlpjj as ,1987 (Supip) SCC 394 to subn-iit that in ordinary legal coni'iotation,the term 'status quo' implies the existing state of tilings at.any giveii ijoint of tifne. • , , ,

¶25• As for the National Policy on Urban Street Vendoi's, counsel (or the respondent/NDMC stated that both, the 2004 policy and the 2009 policy, find mention in the de-cision of the Supreo'ie Court in tl-)e case of cairida P^am-fsupra^ and it was only after taking into consideration the sait.l policies, did Court directed institutionalization of urbar) sheet vending through legislation. If was further stated that at time of W.P.(CJ 47-43/2011^ 5254/2011 « connected maUers ..J delivering the judgment dated 8.10.2010, the Supreme Court took notice or the NCT o(? Delhi Laws (Special. Provisions) Act, 2009, which was valid upto , 30.12.2010, apart from' noticing tlie Model Street Vendors (Protection' of Livelihood and Regulation of Street Vending) Bill, 2009 introduced by the Government of India, Miriistry of llousing ik tirban Poviarty /Alleviation. She-stated that nothing new is now/being subniitted by 'the petitioners/vendors herein, for the present.-petitioris lo" be entertained for any purpose-whatsoever and all the grievahces raise(.l by the-petitioners can easily' be • addressed' before Vendii-ig Committee/appellate authority under the scheme relating to urban street vending in the MDMC area,,which fora continue to remain functional,even aftei^ 30.6:2011.

¶26• Tliis Court has heard 'these matters at length since 17.8.20.LI, on different dates. Various Xounseis for the petitioners/vendors and the Standing^Counsel tor the respondent/NDMChad addressed the Couit. Their respective arguments have been taken note of. Both'sides have -made strenuous efforts' to' explain what the status quo order dated

15.7.2011 passed by ..the Supreme Court in case ot Gmnda RajllCsuiira)implies. The leitmotif of the arguments addressed on behalf : of the petitioners/vendors is. that the status quo order read witl'i tlte qualifying .words, "as it is obtaining today", sufPixed to the oixler, can only be i'ead to imply that as on date, i.e., 15.7.2011, there was no sclieme operational in the NDMC:areas to i-egulate vending activities and till a law W.p:(C} 4-743/2011, S254/201J: 81 connected malters Page 22 of 2n r is ultimatelyenacted by the legislature, all the petitioners, irrespectiveof their legal status, can continue squatting/hawkingat different sites that have been occupied by them. It is also asserted that in the teeth of the status quo orders passed by the Supreme Court, the respondent/NDMCin collusion with the police authorities, is threatening to illegallyremove the petitioners/vendorsfrom different sites, which is detrimental, adverse, harassing and belligerentto those, who have been found eligible by the respondent/NDMCfor being allotted specific tehbazarispaces within the NDMC jurisdiction,but are being threatened due to lack of further action in this regard which is pending at the end of the respondent/NDMC. The second limb of submissions made by the learned counsels for the petitioners/vendorswas that the Special ProvisionsAct would additionally come to rescue of the •petitioners/vendors, which also requires maintenance of status quo as existing on 01:10.2006, till the end of December, 2011.

¶27On the other hand, the main thrust of the arguments addressed by the counsel for the respondent/NDMC was that as the legislature has failed to enact an appropriate legislation in terms of the decision of the Supreme Court in the case of Gainda Ramfsupra), the subsequent order dated

15.7.2011 directing parties to'maintain the status quo as it is obtaining on the said date can only imply that the state of affairs as existing on date are not to be-disturbed, until the rights of the parties can be finally determined through legislation. It was. submitted that while W.P.(C) 4743/2011, 5254/2011 & connected matters passing the status quo order on .15.07.2011, the Suprehie Court was conscious of the fact that the i^arliament had yet to enact a con-iprehensivelegislation to regulate urban street vending and in such circumstances, it goes without saying that it was the intent of the Court that the entire dispute redressal mechanism as recognized in the. case of Gaind.a.EaniCsLLBralwould continue to remain in operation, so as to regulate the urban streetvending in.the NDMC area, till the legislationin that ,regard is enacted. Further, it was stressed that the Special •ProvisionsAct did not provide any protective umbrella to the petitioners, whose, squatting activities •neither fell under definition of "encroachment",nor under "unauthorizeddevelopment", it was furtliei asserted that' even otherwise pending .an appropriate legislation,.the NDMC /-\ct waj availableas a fall back.optionand the relevantprovisions in the said enactment would continue to regulate street vending activity in the NDMC area and the petitioners/vendors could not clairri a vested right ( • to squat at any site of their own.

¶28From above; it is apparent that arguments and counter arguments have been raised by both sides on their respective versions of 'the n'leaning and effect of the status quo order dated :lb. 7.2{);tl passed by the Supreme Court. It is also very apparent, that the meaning Sought to be attributed by both sides as to the irnplicatioi"! of tlie said status quo. order, is diametrically opposed to each other. Not only this, both sides are at a tangeiit on the factum of the pendency or otfierwise of W.P.(C) 4:743/2011, 5254/2011 connected matSiers Page 7.4 of 21! the-interim applications filed before the Supreme Court by both, the applicants/vendorsand the respondent/NDIMC,for.clarifications,on which the aforesaid order came to-be .passed aa it is the stand of the respondent/NDMCthat the aforesaid applications were not disposed o( while passing the order dated 15.7.2011. The parties are poles apart on the question of import of the status quo order, and the effect,of the observations made by the Supreine Court in the case of Gaindcj Rm-nlsupraJ.as regards the approval of NDMC scheme. They are al.so at loggerheads on the composition of the adjudicatory mechanrsm in tlie NDMC jurisdictionand the manner of its functioiiing,as aLo the identU.') of the scheme which is valid'ly-operatingin the IMDMC areas for regulating urban street vending, which had all been subject matter of consideration before the Supreme Court in the-aforesaid case. The other issne,s agitated by the parties-, starting from the,interpretationof tl ie various observationsmade by the Supreme Court in the aforesaid judgment,-tM the foimnulation of the scheme as approved by the Supreme Court in the case of Siidhir Madan rsupra), to the composition of the. disputes redressal rneclianisrn and its validity as also the meaning of the status •quo order, are all in a turirioil as both the parties have stoutly defended their respectivestands whicti are coimpletelyat variance wit.li each ol.her. The only common ground shared by the parties is the facturn of passing of the I'ecent judgment dated

08.10.20J.0 in tfie case of Ggijidct .!iam(sL!przOand the subsequent status quo order dated 15.7.2011 passed m.P'.(C) ^l743/'1011r 5254/2011 ft cdnneciied malters Pnge 25 of 28 :\ by the Supreme Court. •29. The fountainheacl of the dispute in the present cases tlicrePore remains the status quo order dated ,15.7.2011 passed l^y the bupienie Court. The issue which is sougint to be agitated before this Courl; is ttial. having regard-to the status, quo order, whether a stay order ouglit l.o be granted by this CouiT in favour of the petitioners/vendors as prayeci for by them, li'respective. of their legal, status, thus forbidding tlie respondent/IMDMC from threatening and/or removing tliem froin tl)e different sites occupied by them in the NDMC areas. In other words, tliis Court is being called upon to examine tjie meaning, scope and elfect of the'status quo order dated

15.07.2011. On the question o( how to • ascertain the implication of a status quo order passed by a court, in l.lie case of Messrs Bharat Coking Coal,Limited fsupraL it was observed by tfie Supreme Court that/the expression, 'status quo' is undoubtedly a term of ambiguity and at tiines, gives rise to doubt and difficulty and in case any party has any doubt on the n|ieaning and the effect of, tlie status .qu(.) ordei', the proper course for such a party would be to approach tfie Court, that had passed the status quo order, to .r:iee.lic.:,.clarifications.

¶30.Tn the case at hand, while seeking to ride the wave of the aforesaid status quo order, parties have chosen to overlook one irii|.iorl.ant factoi, which is that a status quo. order operates on both sides. Ihe • Supieme Court has passed orders requiring both sides to rnaintaiii stalnrs •W.P.(C) ^743/2011, 5254/2011 & connected ntatiers Page 2f> of IS quo. Once such an. order of the Suprenie Court is on record, the same not only binds all.the parties to the adjudication, and all the parties, civil or judicial who are required to act in accordance with tl'ie said orders, but it equally binds the High Court Prorn interfering with such an .order, as the said! order has been passed in litigations before the highest Coi.iit oP the land.

¶31The orders oP the. Supreme -Court'are on record. Tlie status quo order' is a clear signal to the High' Court as well, to avoid granting any order, including an interim order,-when the Supreme Court lias directed. for status quo to be maintained. In such circumstances, if this Court was to grant a stay order in favour of the petitioners/vendors arrayed before it, it would be tantamount to negating the orders of the Supreme Court, wtiicPi'require the parties to maintain status quo pending ei'i^^ctrnei'il: of appi-opriate' legislation. IP either oP the parties were unclear-about -interpretation of the status quo order, it was for tliem to I'lave aijplied to -the Supreme Court for clarifications thereof. Additionally, tPie reliance placed by the petitioners/vendors on the Special ProvisionsAct seeking inteiim .legal-sanctity to tlie. placement of goods by tfiern on the pavements, by terming it as. encroachment/unauthorized use, as lecognized under the said Act and'their contention that tlie Si.iproriie ) Court had recognizedthe fact that the Special ProvisionsAct is the only Central law having primacyover otherStatutes,are also matters tPiat the IV.p.(C) 4-7^3/20x1, 5254/2U11 « CQnnsctBd Pays 27 af 2S /..>• • petitioners/vendors ought to I'lave placed before the Supreme Courl; while seeking clarifications oF the, status quo order. It would Iherefoi'e be advisable for the .petitiohers/vendors as also respondent/IMDMC to approach' Supreme' Court" and make their submissions tl'iere as regards their' grievances, l-lowever, as both parties insisted that l.lieir ' arguments be taken note of a.nd'Lheir subhiissions be placed on rect)i"d, some pains have been taken to do the needful.

¶32' In view of the aforesaid .facts and circumstances, this Court is of the opinioh that it will not be appropriate for it ,to grant stay orders in l:he face •of the status quo order dated

15.07.2011 passed by tfie Supreme Courl:: It is reiterated that any such order shall be an anti-thesis to tlie oi'dei's (.if the Supreme Court, which must be respected both, in leLter and s|,iirit. In sucl'i circurristances, present petitions are disposed of by declining granl of any interim orders to the petitioners. Howevei', liberty Is granted to both the parties to apply to the Supreme Court for a clarificaLion of Ll'ie status quo order dated

15.07.2011 passed in the case of Gainda Kani .C§y.l2riL).- i'hfe parties are left to bear their own costs. .OCTOERAiH',2011 rkb (P-- •p/l/.p-fc; 4743/201525^/2011 & connected mai:l:^.rs IICOIHIIL.I) JUDGI5 Paye 28 of 2S

-.7 IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 21.09.2011 Pronounced on: 24.10.2011 + w.p.rc^ 4347/2011. 4559/2011. 4593/2011. 4610/2011 4650/2011. 5028/2011. 4651/2011. 4775/2011. 4827/2011, 5247/2011. 4923/2011, 5254/2011. 5024/2011. 5255/2011 5257/2011- 5264/2011. 5258/2011 5277/2011. 5261/2011, 5292/2011. 526^/2011. 5312/2011. 5263/2011 5317/2011 5402/2011. 5403/2011. 5405/2011 5408/2011. 5410/7011 5411/2011. 5413/2011. 5418/2011, 5423/2011. 5444/2011 5473/2011. 5484/2011 5485/2011. 5497/2011. 5498/2011 5503/2011, 5504/2011. 5505/2011. 5506/2011. 5507/2011. 5508/2011, 5618/2011 5595/2011. /ont 5614/2011. 5615/2011. 5616/2011. 5645/2011. 5654/2011. 5630/2011. 5656/2011. 5631/2011. 5711/2011. 5643/2011, 5717/2011 5718/2011. 5728/2011, 5729/2011. 5731/2011 5732/2011 5737/2011. 5738/2011. 5739/2011, 5743/2Q11• 57Si /5fl11 5784/2011. 5785/2011. 5791/2011- 5794/2011 5797/2011. 5928/2011. 5957/2011 5798/2011. 5822/2011. 5911/2011, 5918/2011 5931/2011. 5933/2011. 5934/2011. 5935/2011. 5965/2011. 5966/2011. 5967/2011. 5968/2011 J.|y 5969/2011 5970/2011. 5974/2011. 6096/2011. 6100/2011. ^ w ^ B W A A ^ 6101/2011 6102/2011.- 6107/2011. 6108/211. 6114/2011 6115/2011 6116/2011. 6117/2011. 6118/2011. 6119/2011. 6120/2011 6121/2011. 6122/2011. 6123/2011. 6144/2011. 6250/2011 6270/2011. 6271/2011, 6449/2011. 6527/2011. 652S/2011 6529/2011 6530/2011, 6531/2011. 6532/2011. 6533/2011 6534/2011. 6538/2011, 6555/2011. 6667/2011 6668/2011. 5173/2011 6669/2011. 6670/2011. 6684/2011. 6701/2011. 4739/2011. 5046/2011. 5051/2011. 5157/2011. 4649/2011 4722/2011. 3185/2011. 2601/2011. 2602/2011. 3052/2011. 3181/2011. 3189/2011. 3196/2011. 4340/2011 4343/2011, 4344/2011. 4345/2011. 4349/2011. ^XMXXm 4350/2011 4352/2011. 4354/2011. 4356/2011. 4358/2011. i iC,\l X Xm 4359/2011 4360/2011. 4361/2011. 4362/2011. 4363/2Q11 4364/2011. 4369/2011 4365/2011. 4366/2011. 4367/2011. 4368/2011. 4370/2011. 4371/2011, 4372/2011. 4373/2011. 4374/2011 4375/2011, 4377/2011. 4387/2011. 4388/2011. 4389/2011. 4391/2011. 4392/2011. 4393/2011. 4395/2011 4396/2011. 4402/2011 4398/2011. 4399/2011. 4400/2011. 4404/2011. 4405/2011. 4406/2011. 4407/2011. 4408/2011 4409/2011. 4410/2011. 4412/2011. 4413/2011. -T-TUfO / 4414/2011 5341/2011. 4847/2011. 4859/2011. 4887/2011. 4990/2011. W-P.(C}4347/2011andconnectedmstters Page1of8 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. 5089/2011, 5099/2011, 5114/2011. 511^/ynii 5129/2011, 5139/2011. 5144/2011. 6708/2011. 6824/2011. 6825/2011. 6826/2011. 6827/2011^ 6901/2011, 6902/2011. 6903/2011. 6904/2011 ^906/2011, 6907/2011. 6908/2011. 69nQ/:>nn 6910/2011, 6917/2011. 6919/2Q11 6920/2011. fiQ>i/7nii 6922/2011. 6932/2011 and 5420/2011- m TOE MATTERS OF MOHD A^AM Petitionerin W.P.(C)4347/2011 KIRPALS^CH Petitionerin W.P.(C)4559/2011 cuATiL.ir-? Petitionerin W.P.(C) 4593/2011 SAWIAY Petitionerin W.P.(C)4610/2011 r.«R,,, . Petitionerin W.P.(e)4650/2011 AMAR NATH qiNrw Petitionerin V^.P.(C)4651/2011 GAiMESH P^SAD Petitionerin W.P,(C)4827/2011 BHUPAL Petitionerin W.P.(C)4923/2011 o, ^ Petitionerin W.P.(C)5024/2011 '|c:ha SINGH AIMD ORS. Petitionersin W.P.(C)5028/2011 - Petitioner in W.P.(C) 4775/2011 Petitioners in W.P.(C) 5247/2011 VISHAMrL iHA Petitionerin W.P.(C) 5254/2011 Petitioner in W.P.(C) 5255/2011 ANiM " Petitionerin W.P.(C) 5257/2011 DAiccu ^ Petitioner in W.P.(C) 5258/2011 LAKHPATIand Petitionersin W.P.(C) 5261/2011 - Z'S S MOHD ^Hin Petitionerin W.P.(C)5292/2011 SHAKEErAHSED Petitionerin W,P.(C)5312/2011 Nand i^IShorI Petitionerin W.P.(C)5317/2011 Petitioner in W.P.(C) 5402/2011 HARJEET Petitionerin W.P.(C) 5403/2011 Petitioner in W.P.(C) 5405/2011 rat!? KUMAR RAO AND ORS Petitionersin W.P.(C)5408/2011 NABI HASAM VV.P.(C) 5410/2011 u.ni!,;;? Petitionerin W.P.(C) 5411/2011 BHUPINDE^R^S^^^^^^ PetitionerinW.P.(C)5413/2011 SINGH Petitionerin W.P.(C) 5418/2011 ••••• Petitioners in W.P.CC) 5423/2011 mmm? GUPTA Petitionerin W.P.(C) 5444/2011