Street Vendors, Hawkers Can't Fix Any Place Or Erect Permanent/ Temporary Structures: Delhi High Court

The Delhi High Court on Monday observed that the concept of tehbzaari, street hawking and vending does not envisage that the hawker or vendor would fix himself to any particular place or erect any structure whether permanent or temporary on it's own.

Justice Vipin Sanghi and Justice Jasmeet Singh also added that there is no question of any hawker or vendor staking a claim to occupy any public space in the name of hawking and vending round the clock by placing a structure, temporary or otherwise, at the site and converting the same into a shop where the hawker or vendor and his goods can permanently remain.

The Court was dealing with a petition seeking directions on North Delhi Municipal Corporation not to disturb or create obstacles in the business activities of the petitioners, a total of 20 traders, on the alternate tehbzaari sites allotted to them vide order dated December 29, 2021.

A direction was therefore sought for either withdrawal or quashment of a notice dated January 14, 2022 issued to the petitioners for removing the temporary tin roof structure placed by them on the tehbzaari sites allotted to them at the footpath of red light in between Lothian Bridge and recruitment office.

According to the notice, a period of two days was given to the petitioners for removing the said structures failing which the same will be removed by the department.

The case of the petitioners thus was that they had been relocated for the purpose of redevelopment and upon completion of redevelopment activity, had been re-allotted space for their hawking and vending activity by the NDMC.

The Court therefore perused the terms and conditions of the relocation wherein one of the conditions imposed on the petitioners was that they will not raise any structures on the site.

"What the petitioners have done is to place temporary structures at the hawking and vending site allotted to them," the Court noted.

The counsel appearing for the petitioners placed reliance on an order passed by the Supreme Court in Sudhir Madaan and Ors v. MCD and Ors dated 6th February 2007.

It was submitted that the Apex Court's direction said that the tehbzaari and vending sites be covered wherever possible for which a standard design would be evolved by the corporation.

In the said context, it was submitted that the MCD had came up with a public notice regarding squatters /street vendors/ weekly bazaars on 17 August 2007 inviting applications in terms of the order passed by the Apex Court. Court's attention was also drawn to the public notice issued by the municipal corporation of Delhi in the said regard.

It was thus the argument of the petitioners' counsel that the MCD itself came out with the design of the temporary structures to be provided to the hawkers and vendors in terms of the policy, being in line with the orders passed by the Supreme Court.

It was submitted that a comparison of the design prepared by MCD with temporary structures placed by the petitioners at their tehbzaari site would show that there was no difference and that the petitioners had strictly complied with the design approved by the MCD.

Submitting that there was no illegality in the conduct of petitioners in placing temporary structures at their hawking and vending site, it was added that the same was done only with the view to save the petitioners and their goods from weather conditions in order to protect their goods.

Finding absolutely no merit in the petition, the Court said that the communication dated December 29, 2021 issued to the petitioners relocating them expressly stated that they shall not raise any structures at the site.

"Contrary to the said condition, petitioners have gone ahead to bring the structures and place them at the hawking and vending site. This itself tantamounts to breach of a condition imposed upon them in the order dated 29.12.2021," the Court noted.

The Court also said that while passing the orders as relied upon by the petitioners, all that the Supreme Court observed was that the MCD was proposing to allow tehbzaari or vending sites to be covered wherever possible for which standard design would be evolved by the corporation.

"It doesn't mean that the hawkers and vendors can occupy permanently or even round the clock the tehzaari vending sites. The activity of tehbzaari vending itself postulates that the activity will be carried out only during the times of the day for which such activity is permitted and area within which the activity is permitted," the Court said.

It added:

"In fact the order dated 06.02.2007 passed by the Supreme Court itself cautions that no permanent structure shall be raised and the tehbzaari / vending sites may be covered in such a manner as to identify and demarcate the area available for tehbzaari and with a view to afford protection against the elements to the allottees and their goods lying within the allotted site. The said protection can be only for the period of vending and cannot be round the clock by creation, erection or installation of a covered kiosk."

"In fact, the Supreme Court also observed that the scheme should provide for taking strict action against any allottee found who changed or alter structure raised by the corporation, thus; even if some kind of a structure were to be raised, it would necessarily have to comply with the fundamental principles of hawking and vending. We take a note of herein above, the same had to be provided by the corporation and it was not left to the tehbzaari allottee to place the structure on his own sweet will."

The Court also rejected the submissions made by the petitioners' counsel that there were several other tehbzaari holders who had erected similar structures in several parts of the city.

"If that has been done, even that is illegal and it cannot be permitted. Two wrongs do not take a right and there is no concept of negative equality," the Bench noted.

Importantly, the Court said:

"The state of the city today is alarming vis a vis hawking and vending which is taking place in already crowded markets. The open spaces meant for pedestrians and market goers have been completely taken over."

The Court also referred to a recent order passed by it wherein it had expressed its concern over the rampant illegal encroachment by the hawkers and vendors in city's Chandni Chowk area. It remarked that the redevelopment activity of the area is already 'falling in disrepair'.

"Redevelopment Activity Falling In Disrepair, Bus Stop Converted Into Vending Zone": Delhi High Court On Chandni Chowk Encroachment

The Court had found that the said activity was being carried out in a completely unregulated manner and that the hawkers and vendors had sprawled themselves, their products and goods at their own will all over the place, including middle of the walkways.

With the aforesaid observations, the Court dismissed the petition while imposing a cost of Rs. 5,000 to be paid by each of the petitioners.

"The cost will be deposited to DSLSA within two weeks," the Court said.

Case Title: SULEMAN ABBAS & ORS. Vs. NORTH DELHI MUNICIPAL CORPORATION & ORS.

Citation: Citation: 2022 LiveLaw (Del) 41