Dwarka Sector 6 Vendor Association v. Mcd & Ors

G.S. SISTANI, J. (ORAL)

¶1Challenge in this LPA is to the order passed by the learned Single Judge dated 15.10.2015 by which the writ petition filed by the appellant association seeking a direction to the respondents not to

dispossess the members of the appellant association from their hawking sites i.e. Dwarka Sector-6 Market, New Delhi has been dismissed.

¶2It is pointed out that the appellant association comprises of 72 members, but for the present only 35 members are in existence.

¶3The grievance of the appellant is that although they have been squatting at different areas, however they were illegally removed by the respondent DDA on 27.08.2015. Learned counsel submits that the appellants are required to be protected in view of the Section 3 (3) of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, as per which no street vendor is to be evicted till a survey is completed and certificate of vending is issued to all the street vendors. He submits that samples of challans issued to the members of the association have been placed on record to show that the appellants have been vending since the year 2001. Learned counsel submits that although the learned Single Judge had dismissed the writ petition on the ground that the Town Vending Committee is in the process of being constituted. In fact, the Town Vending Committee is still not in place and in case the appellants are not allowed to vend, they would suffer financial hardships as this is their only source of livelihood.

¶4We are informed that the writ petition was disposed of on the first date of hearing itself and thus no response was filed by any of the respondents. The position is no different today as there is no response by any of the statutory bodies, who have been impleaded as parties.

¶5This petition is vehemently opposed by the counsel for the respondent no. 6 (Central Market Sector-6 Dwarka Welfare Association), which was impleaded as a party by an order dated 26.07.2016.

¶6Learned counsel for respondent no. 6 submits that the appellants are encroachers on public land. They have no right to vend or hawk in an area, which has been declared by the MCD as "No Vending Zones" and "No Hawking Zones". Additionally, it is submitted that along with the LPA, documents pertaining to only five members of the appellant association have been filed, although an impression was created that the documents pertaining to all the members have been placed on record. He further submits that by an order 26.07.2016 a direction was issued to the petitioner to file further documents, however the said documents, which have been placed on record, are forged and fabricated, which would be evident from the fact that the receipts filed at page no. 247, 249 and 259 pertain to different persons but all the particulars on the receipts are same except the name of the persons. Counsel for respondent no. 6 further submits that neither the writ petition was maintainable nor the present LPA is maintainable as the respondent no. 6 has instituted an earlier writ petition with respect to the encroachments of the same area and same market, being WP (C) No. 3521/2006. It is contended that when the aforesaid writ petition came up for hearing on 21.09.2006, the following order was passed: "Learned counsel for respondent no. 2 shall file a supplementary affidavit indicating the plan/action to remove encroachment, on systematic basis, from the public land in the markets in question. Let the affidavit be filed within four weeks. List on 5th February, 2007."

¶7Counsel contends that remedial action was taken and the market was cleared of all encroachments, which is evident upon reading the subsequent order passed on 14.02.2008, which reads as under: "Status report has been filed by both DDA as well as Delhi Police. The photographs show that encroachments have been removed. Details of FIR registered against persons who had encroached upon footpath and other land adjacent to the market have been enclosed with the affidavit.

In view of the action taken nothing survives in the present writ petition. However, it is directed that the respondent/DDA and Delhi Police will continue to make periodical inspections of the area to ensure that footpath and other areas are not encroached upon."

¶8It is submitted that the appellants in connivance with officials of the respondents continued to flout the orders and the appellants, who are part of the strong mafia, continue to occupy and obstruct public areas in utter defiance of the order passed in W.P. (C) No. 3521/2006, which order was never challenged and has thus attained finality. It is also contended by the counsel for respondent no. 6 that the documents sought to be relied upon by the appellants are unreliable and in fact do not support the case of the appellants that they have been vending at the area in question since 2001.

¶9Attention of the court is drawn to paragraphs 3 and 7 of the Crl. Misc. Application No. 17488/2016 filed by the respondent no. 6 to show that false and misleading statements have been made by the appellant. The paragraphs read as under: -"3. That the Appellant filed false affidavit, made false statements and fabricated documents when he filed the present LPA, which is demonstrated below: -

S.No. STATEMENT MADE BY ITS FALSITY PROVEN FROM

APPELANT/BAL KISHAN COURT RECORD

¶1Mr. Bal Kishan filed a list of 72 persons & annexed some alleged documents in support [Annexures P2(Colly) & P3(Colly) Pg 80 to 96 of LPA] and described them as below: Annexure P2(Colly): "Copies of Challan Receipts of the Vendors" Annexure P3(Colly): "Challan by MCD and confiscation of the items from which they have been vending"

(a) Scrutiny of these alleged documents showed that even these were with respect to only 5 persons, which was shown for 72 persons and in this garb new encroachment was being attempted.

(b) Mr. Bal Kishan had shown no locus to represent anyone or file any legal case before any court, let alone 72 persons and LPA was filed giving some address of Nangloi, which the petition itself stated as residence address of Mr. Bal Kishan.

(c) no vending rights were ever granted in this market area, as it is a Non Vending/Non hawking area and rather a Zero Tolerance Zone.

(d) there was not even one alleged document in favour of Bal Kishan.

¶2That persons were operating as vendors in Dwarka Sec. market from the year 2001

(a) When this litigation started, there were no vendors in this market area and Bal Kishan himself submitted it, which was observed by High Court in impugned Order dt. 15.10.2015 in W.P(C) No. 9042/2015. " But as per averments in paras 25 and 26 of the petition the petitioners have already been dispossessed on

27.08.2015."

(b) Delhi High Court vide Order dt

21.09.2006 in W.P.(C) No. 3521/06 had directed Govt. authorities to remove all encroachments in markets at Sector 6 & 10, Dwarka, N. Delhi and to continue doing so on systematic basis.

(c) Delhi High Court vide Order dt.

14.02.2008 in W.P.(C) No. 3521/2006 had observed that there was no encroachment in this market and further directed DDA & Delhi Police to make periodical inspection of market area & ensure that footpath & other areas are not encroached upon by unscrupulous elements. These Orders have been placed on record in present proceedings.

(d) Respondent No.6 had filed photographs & video showing there are no existing vendors in this market area

¶3Mr. Bal Kishan claimed himself to be President of an association named Dwarka Sector-6 Vendors Association claiming to represent persons There is no such association or entity named Dwarka Sector-6 Vendors Association. Nothing was placed on record to substantiate Mr. Bal Kishan projecting himself as its alleged President.

…

¶7That the scrutiny of the Affidavit 10th August 2016 filed by Mr. Bal Kishan and copies of documents annexed, has revealed further false statements by Appellant who has filed another false affidavit on oath before this Hon'ble Court and that Appellant and his accomplices have further forged & fabricated documents to play fraud upon this Hon'ble Court, as detailed below:

7.1: False statements made in the affidavit S.No. STATEMENT MADE/ DOCUMENTS FILED BY APPELANT ITS FALSITY PROVEN FROM COURT RECORD

¶1Appellant in para 4 of affidavit has stated: "I say that the appellant association is now filing proof of 37 vendors out of 72 vendors because rest of the vendors are not having any supported documents ……."

(a) As shown above, when this litigation started, there were no vendors in this market area as submitted by Bal Kishan himself.

(b) Mr. Bal Kishan filed a list of 72 persons & annexed some alleged documents in support as "Copies of Challan Receipts of the Vendors" AND "Challan by MCD and confiscation of the items from which they have been vending"

(c) After the falsity of this statement was exposed, now Appellant says only 37 vendors have any proofs, which means 35 out of 72 vendors never had any supporting documents, as was being falsely claimed.

¶2Appellant now claims that 37 vendors have supported documents Scrutiny of even these documents shows that even this is false as they are not even 37 and the nature of documents is commented upon against each in the sub-paras below.

7.2: List of persons with no ID and no connection with Sec. 6 Market: [Alleged documents of each name grouped together to highlight the same]

S.No. Name Particulars Pg. No. Observation

¶1Shankar 471005

03.12.2013 for Rs. 50/-. Without any I.D. proof Challan by Delhi Police for garbage. No address of where it is booked.

¶2Laxmikant 451684

04.09.2013. Without I.D. Proof Challan by Delhi Police for garbage. No address of where it is booked.

¶3Raghav

45672

02.03.2016. 30739 dt 9.06.10 24067 dt. 6.01.11 680064 dt.28.3.06 Receipt No. 410 dated 20.03.2008

There is no I.D. Proof to even connect these documents with this person. Receipt for garbage.

Receipt for garbage

Receipt for garbage

The name on receipt is Raghu Paswan The name on receipt is Raghu Paswan

¶4Bal Kishan Copy of Voter ID as ID Proof 471041

18.01.2014. 668629

22.08.2014 Copy of pass book Corporation Bank

Challan by Delhi Police for garbage. No address of where it is booked.

Challan by Delhi Police for garbage. No address of where it is booked.

Irrelevant document attached to mislead the court.

¶5Surender Yadav 055273 No I.D. Proof.

Address on Receipt is RZ C/8

24.09.2013. Patel Garden

¶6Manoj Rao Copy of One side of Voter ID card

668632 dt 22.8.14 Copy of pass book Corporation Bank

No name. Back side of some Voter ID attached in order to mislead. Challan by Delhi Police for garbage. No address of where it is booked. Irrelevant document attached to mislead the court.

¶7Madhur Rahman Copy of Voter ID card Copy of pass book Corporation Bank

Only copy of ID card attached.

No document to show any connection.

¶8Devender as ID Proof 1046714

20.03.2012. 40003

10.09.2014 Copy of passbook Corporation Bank

Name on Aadhar is different i.e. Devendra Khetrapal Receipt in name of different person Devi Der. For garbage.

Receipt in name of Devender. For garbage.

Irrelevant document attached to mislead the Court.

¶9Gulshan Sabharwal card Copy of Voter ID card Copy of some photos

46 & 48

No document, only IDs given.

Not a document.

¶10Shrey Khetrapal Copy of pass book Corporation Bank No document & no connection. Irrelevant document attached to mislead the Court.

¶11Rinku as ID Proof 210801

16.01.2013.

FORGED & FABRICATED RECEIPT [THREE RECEIPTS OF SAME NO.] Challan by Delhi Police for garbage. No address of where it is booked.

¶12Rahul 60 & SAME DOCUMENT

as ID Proof

210801

16.01.2013.

39331

15.07.2015

61 &

62 & REPEATED TO MISLEAD THE COURT

FORGED & FABRICATED RECEIPT [THREE RECEIPTS OF SAME NO.] SAME DOCUMENT REPEATED TO MISLEAD THE COURT. Challan by Delhi Police for garbage. No address of where it is booked Challan is in the name of Garg Creations, a shop rather than any vendor. SAME DOCUMENT REPEATED TO MISLEAD THE COURT.

¶13Amit as ID Proof 210801

16.01.2013.

FORGED & FABRICATED RECEIPT [THREE RECEIPTS OF SAME NO.] Challan by Delhi Police for garbage. No address of where it is booked.

¶14Lala Ram as ID Proof 471067

10.02.2014.

Challan by Delhi Police for garbage. No address of where it is booked.

¶15Subhash Kumar Copy of Driving License as ID 471043

18.01.2014. 13000

16.01.2013

Challan by Delhi Police for garbage. No address of where it is booked.

Challan by Delhi Police for garbage. No address of where it is booked.

¶16Ajay Kumar Jumani Copy of Voter card as ID Proof

Receipt in name of different

322066

10.09.2007. summon

16.11.2010. 21842

25.11.2010. 74453 dt 13.01.11

person Sonu. For garbage.

In name of different person Sonu. For garbage.

Receipt in name of different person Sonu. For garbage.

Receipt in name of different person Sonu. For garbage.

¶17Sanjay Kumar summon

03.01.2012. Only Summon. No ID and No proof.

¶18Pappu Copy of Voter card as ID Proof Receipt No. dated

06.03.2014.

Challan by Delhi Police for garbage. No address of where it is booked.

¶19Karam Veer Singh Copy of Voter ID from Unnao, UP Copy of some photo

No Proof

Not a document.

¶20Ravi Copy of Voter card as ID Proof

Receipt No. dated

25.01.2010. Death Certificate of Ravi Chauhan Card of some Neetu Chauhan

THIS PERSON HAS BEEN CLAIMED TO BE DEAD, on

27.11.2015, STILL CLAIM BEING MADE IN HIS NAME

Receipt in name of Ravi Chawan. For garbage, etc.

No relevancy

¶21Manish Kumar card as ID Proof Copy of some medical documents of some Shweta

99, 100, 101,

Not relevant at all. No explanation has been given. Clear effort to mislead the Court.

¶22Manoj Kumar Copy of Voter card as ID Proof 000683538 dated

27.05.2015.

Challan by Delhi Police for garbage. No address of where it is booked.

¶23Gaurav Kumar Bansal card as ID Proof Copy of Voter card as ID Proof 211000

25.03.2013. 37825 dt. 25.6.15.

Name on Aadhar card Gaurav Bansal Name on card Gaurav

Challan by Delhi Police for garbage. No address of where it is booked.

Receipt in a different name Pranav Bansal

¶24Bhupinder Gauhar

card as ID Proof 0329613

14.11.2015.

Name on card is Bhupinder Gohar Name on Receipt. is Bhupinder. Challan by Delhi Police for garbage. No address of where it is booked.

¶25Manoj Yadav card of Begu Sarai, Bihar as ID

Copy of medical documents of Manoj Yadav

126, 127, 128, 129, 130, 131 & 132

Not relevant at all. No explanation has been given. Clear effort to mislead the Court.

7.2: That out of these 37 persons Sanjay Bisht and Pankaj Rathor (part of original list) have accepted that they were never a vendor at Sector-6 market, Dwarka and their name has been put in the list fraudulently and have given affidavits to this effect, copies of which are enclosed as Annexure R6/1 & Annexure R6/2 respectively. S.No. Name Particulars Pg. No. Observation

¶1Sanjay Bisht Name at Sl. No. 21 [Pg 76 LPA] Copy of Voter ID Card MCD Receipt No. 37824

Location is not related to the Sec. 6 market. Has given affidavit that he was never a

25.06.2015 of B-107, DDA Flats Pkt 2, sec.7 Dwarka vendor of Sector-6 market and his name has been put in the list fraudulently.

¶2Pankaj Rathor Name at Sl. No. 26 [Pg 76 of LPA]

Has given affidavit that he was never a vendor of the Sector-6 market and his name has been put in the list fraudulently.

7.4: List of alleged documents filed by Appellant with respect to persons claiming vendor rights: [Alleged documents of each name grouped to highlight the same] S.No. Name Particulars Pg. No. Observation

¶1Ghanshyam Card as ID Registration certificate from

11.08.2015

Tehbazari Receipt 197110 dt

19.10.2006 for Rs.100/-. MM Court 000921091 for Rs.100/- MCD Receipt No. 51434 MCD Receipt No. 77174 dt. 16.3.11 MCD Receipt No. 24055

Name on ID Ghanshyam Madan

Such a certificate issued by Dept. of Food Safety are w.r.t. food safety. At bottom this itself states: "This document doesnot vest any right to the vendor to vend from the address shown in the Registration certificate" The date of issue is after the Vendors Act was notified. Challan in name of Ghanshyam. Contains no address.

Receipt in name of Ghanshyam. Contains no address.

Receipt in name of Ghanshyam. For garbage etc. Address only Sec. 6 Market. Receipt in name of Ghanshyam. For garbage. Address only Sec. 6 Market. Receipt in name of Ghanshyam. For garbage. Address only Sec. 6 Market.

06.01.2011 MCD Receipt No. 038312

12.07.2012 0853210

10.6.2011 MCD Receipt No. 38379

08.07.2015 40547

04.09.2015

Receipt contains address as D-7/56, Sec. 6 Rohini.

in name of Ghanshyam. Challan by Delhi Police for garbage. No address of where it is booked. Receipt in name of Ghanshyam. For garbage. Address only Sec. 6 Market.

Receipt contains address as D-7/56, Sec. 6 Rohini

¶2Jitender Tiwari as ID Proof Registration certificate from

02.03.2015

Not existing. Such a certificate issued by Dept. of Food Safety are w.r.t. food safety. At the bottom this itself states: "This document doesnot vest any right to the vendor to vend from the address shown in the Registration certificate" The date of issue is after the Vendors Act was notified. Address on the same is Sec. 6 , Dwarka, Rajouri Garden.

¶3Avdhesh Tiwari as ID Proof Registration certificate from

05.03.2015

Address is of Siwan, Bihar

Not existing. Such a certificate issued by Dept. of Food Safety are w.r.t. food safety. At the bottom this itself states: "This document doesnot vest any right to the vendor to vend from the address shown in the Registration certificate" The date of issue is after the Vendors Act was notified. Address on the same is Sec. 6 , Dwarka, Uttam Nagar Rajouri

Garden.

¶4Lalmati Devi as ID Proof Reg. certificate from 02.03.2015

Wife of Jitender Tiwari (Sl. No.2) Not existing. Such a certificate issued by Dept. of Food Safety are w.r.t. food safety. At the bottom this itself states: "This document doesnot vest any right to the vendor to vend from the address shown in the Registration certificate" The date of issue is after the Vendors Act was notified. Address on the same is Sec. 6 , Dwarka, Rajouri Garden.

¶5Navalesh Kumar as ID Proof Registration certificate from

10.03.2015

Address is of Gaya, Bihar

Not existing. Such a certificate issued by Dept. of Food Safety are w.r.t. food safety. At bottom this itself states: "This document doesnot vest any right to the vendor to vend from the address shown in the Registration certificate" The date of issue is after the Vendors Act was notified. Address on the same is Sec. 6 , Dwarka, Uttam Nagar Rajouri Garden.

¶6Pankaj Tiwari Copy of Voter ID as ID Proof Registration certificate from

05.03.2015

Address is of Siwan, Bihar

Not existing. Such a certificate issued by Dept. of Food Safety are w.r.t. food safety. At bottom this itself states: "This document doesnot vest any right to the vendor to vend from the address shown in the Registration certificate" The date of issue is after the Vendors Act was notified. Address on the same is Sec. 6 , Dwarka, Uttam Nagar Rajouri Garden.

¶7Gulshan Khurana 013078

18.03.2014. 210888

13.02.2013. 048670

30.04.2013 055269

24.09.2013

For garbage. Address given on receipt is only Sec. 6.

Receipt in name of Gulshan. Challan by Delhi Police for garbage. No address of where it is booked. Receipt in name of Gulshan for garbage.

Receipt contains address as B-65, Subhash Park

¶8Deepak Arora as ID Proof. 104003

13.12.2011.

Name on ID is Deepak Kumar Arora

Receipt for garbage.

¶9Vikas Kumar 30209

25.06.2014. as ID Proof

Receipt for garbage. Address only Sec. 6 Market

No clear I.D. Proof. Nothing readable.

¶10Harish Copy of Voter Card as ID proof 1044462 dt

03.01.2012. 12941

26.12.2012. 451728 & summon

10.10.2013

75 &

Receipt for garbage. Address only Sec. 6 Market

Challan by Delhi Police for garbage. No address of where it is booked.

Challan by Delhi Police for garbage. No address of where it is booked.

Challan by Delhi Police for

471042

18.01.2014 30274

25.06.2014

garbage. No address of where it is booked.

Receipt for garbage. Address only Sec. 6 Market

¶11Mahesh Kumar Yadav Copy of Voter card as ID Proof 30276

25.06.2014.

Receipt for garbage. Address only Sec. 6 Market

¶12Ajay Tiwari card as ID Proof with some complaint 027341dated

16.05.2014. 106,

Receipt For garbage

¶13Naresh Sharma Copy of Voter card as ID Proof summon

04.06.2014 471135

07.05.2014. 30210

06.06.2014

Name on card is Naresh Kumar

Only Summon.

Challan by Delhi Police for garbage. No address of where it is booked.

Receipt For garbage.

¶14Vinod Prasad card as ID Proof 12959

26.03.2012. summon

27.08.2011

Challan by Delhi Police for garbage. No address of where it is booked.

Only summon.

Receipt for garbage with add. as Sec. 6 Dwarka

82090 dt 10.8.11. 45771

17.03.2010.

Receipt for garbage

¶15Shasanka Shekha Shahu card as ID Proof 39583

22.07.2015.

Name on card is Shasanka Shekhar Sahoo

Name on Receipt of Garbage. is Shushaku Shahu"

¶10Counsel submits that the documents sought to be relied upon are irrelevant documents as some of the documents are challans issued by Delhi Police for storage of garbage. The documents do not connect with the names of the persons and address is not mentioned. It is also contended that once the order passed in WP (C) No. 3521/2006 has attained finality, the matter cannot be reheard and even otherwise the names of the appellants do not find mentioned in any of the earlier surveys carried out pursuant to the directions of the Supreme Court by either Chopra Committee or Thareja Committee. Thus, the appellants are encroachers and cannot be granted any protection.

¶11We have heard the learned counsel for the parties and considered their rival submissions.

¶12We find that in response to the submissions made by the learned counsel for the respondent no. 6, there is no satisfactory answer to the submission pertaining to the orders passed in WP (C) 3521/2006 having attained finality. The explanation rendered for not placing proper supporting documents on record by learned counsel for the petitioner is that whenever a raid is conducted by the officials of the

respondents, the vendors are left with no option but to run away from the area with their respective goods, which would otherwise be confiscated and penalty imposed upon them. There is also no explanation with regard to documents filed at page no. 247, 249 and 259 of the paper book, where the receipt number is the same, all particulars remain identical but the receipts stand in the name of Amit, Rahul and Rinku; except that the appellant association has filed a police complaint against two out of the three persons, who have fabricated the receipts. Copy of police complaint has been placed on record along with CM No. 6238/2017.

¶13Thus, the appellants have failed to place on record the documents, which would repose confidence in the court that the appellants have been vending at the sites in question since the year 2001. The appellants are unable to show the vital documents in support of this plea. The earlier orders passed and the affidavit filed by DDA in WP

(C) 3521/2006 dated 21.09.2006 and 14.02.2008 would show that the area in question was clear of all encroachments even at that stage. In case the appellants were vending at the site, which is disputed by the counsel for the respondent no. 6, the appellants would have approached this court to safeguard their interest in the year 2006 or soon thereafter. Thus, a reasonable doubt is created as to whether these are the same appellants, who were infact squatting at the time when orders were passed in WP (C) 3521/2006.

¶14Therefore, the protection contained in Section 3 (3) would not apply to the members of the appellant association. Additionally the orders passed by this Court in WP (C) 3521/2006 cannot be allowed to be flouted.

¶15At this stage, we restrain ourselves from making any further comments or return a finding with respect to the documents filed by some of the appellants on record although the same are not above suspecion or else their rights would be affected in case the members of the appellant association wish to approach the Town Vending Committee in support of their pleas for grant of licences and squatting sites.

¶16Accordingly, we find no merit in the present LPA, however we make it clear that should the members of the appellant association approached the Town Vending Committee in the prescribed form, their applications would not be rejected merely because they were not found vending at the site in question provided, of course, they are able to place on record supporting documents in support of their plea that they have been vending since 2001. With these observations, the LPA and all applications are disposed of.

¶17We also direct the statutory bodies to ensure that none of the shop-keepers encroach upon verandahs or public land. Counsel for respondent no. 6 also undertakes to the court that none of the members of the respondent no. 6 association will permit any shop keeper or any member of the association to encroach upon public land, extend their shops or encroach upon verandahs or public land. The statutory

bodies are directed to take strict action in case of violation of this undertaking.

G. S. SISTANI, J.

VINOD GOEL, J. FEBRUARY 16, 2017 // "sk"

* IN THE HIGH COURT OF DELHI AT NEW DELHI + % Date of Judgment: 16th February, 2017 DWARKA SECTOR 6 VENDOR ASSOCIATION ..... Appellant Through: Mr. Chetan Shandilya, Advocate. Versus MCD & ORS ..... Respondents Through: Mr. Aditya Singh, Advocate for MCD. Mr. Virender Pratap Singh Charak, Advocate with Mr. Santosh Kumar Pandey & Ms. Shubhra Parashar, Advocates for SDMC. Mr. Peeyoosh Kalra, ASC for GNCTD with Ms.Sona Babbar & Ms. Pritika Kumar, Advocates with Insp. Adith Lily and SI Mukesh Kumar of PS Dwarka (South). Mr. Sanjeev Singh, Advocate for R-6. CORAM: HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MR. JUSTICE VINOD GOEL