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2015 DIGILAW 1362 (PNJ)

Deepak Kumar v. State of U. T. , Chandigarh

2015-07-30

M.JEYAPAUL, RAJ RAHUL GARG

body2015
JUDGMENT : M. Jeyapaul, J. All these writ petitions, namely, CWP No. 12542 of 2015, CWP No. 12543 of 2015, CWP No. 12544 of 2015, CWP No. 12545 of 2015 and CWP No. 12546 of 2015 are taken up as a bunch for disposal as the contentions raised and the prayers sought for therein are found to be one and the same. 2. These writ petitions have been filed praying for quashing office order dated 24.4.2015 passed by 2nd respondent-Municipal Corporation, Chandigarh through its Executive Officer to remove the encroachments in Shastri Market, Sector 22, Chandigarh and the adjoining area thereof and the office order dated 11.6.2015 passed by 3rd respondent-Municipal Corporation, Chandigarh through its Commissioner rejecting the representation made by street vendors in compliance with the order passed on 3.6.2015 by this Court in CWP No. 10774 of 2015. They have also prayed for a direction to the respondents to immediately constitute 'Town Vending Committee' as defined in The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (hereinafter referred to as 'the Act') 3. It is contended by the petitioners in the above writ petitions that they are doing street vending business in the area of Sector 22, Chandigarh for the last more than 15 years and are earning livelihood for their families. Some of the petitioners have inherited the said business from their parents and joined the said business later in time. Some of the petitioners were shifted to several places and were also allotted licence by the competent Authorities. Permits/coupons to conduct business of stationary vending were also issued to the petitioners as well as the other vendors operating in various parts of Chandigarh city. Challans also were issued to some of the petitioners by the competent Authority for doing the street vending business on the pavements or on the land of the Municipal Corporation, U.T. Administration. The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 came into force on 5.3.2014. The petitioners are the street vendors as per the definition in Section 2(1) of the Act. As per Section 22 of the Act, it was mandatory for the appropriate Government to constitute a 'Town Vending Committee' in each local Authority. There shall be representation for the street vendors in the said Committee. The petitioners are the street vendors as per the definition in Section 2(1) of the Act. As per Section 22 of the Act, it was mandatory for the appropriate Government to constitute a 'Town Vending Committee' in each local Authority. There shall be representation for the street vendors in the said Committee. As per Section 36 of the Act, the appropriate Government is bound to frame Rules within one year from the date of commencement of the Act. No Rules have been framed by the respondents in Chandigarh. The Town Vending Committee shall conduct a survey of all existing street vendors within the area under its jurisdiction in order to identify the street vendors for accommodating them in the vending zones. The Town Vending Committee has not been constituted so far by the appropriate Government. 2nd respondent has issued an office order dated 24.4.2015 directing the Enforcement Wing of Municipal Corporation, Chandigarh to remove the encroachments in Shastri Market, Sector 22, Chandigarh and adjoining area thereof. Respondents No. 5 & 6 are not allowing the petitioners to run their street vending business on the pavements and other area surrounding Sector 22, Chandigarh in spite of an embargo found under Section 3(3) of the Act that no street vendor shall be evicted or relocated till the survey is completed and the certificate of vending is issued to all street vendors. Some of the street vendors filed CWP No. 10774 of 2015 before this Court praying for quashing the above official order dated 24.4.2015. The said writ petition was disposed of on 1.6.2015 giving an opportunity to the petitioners to approach the Municipal Corporation with a representation. Until the disposal of the representation, eviction of the petitioners was stayed. A representation was submitted to the 3rd respondent who rejected the same. Hence, these writ petitions have been filed seeking the aforesaid reliefs by the petitioners. 4. In the written statement filed by the respondents No. 2 to 6 and adopted by 1st respondent, it was contended that the office order dated 24.4.2015 was issued by the Municipal Corporation only in compliance with the orders passed by this Court in CWP No. 786 of 2009 on 3.3.2014 and 9.4.2014. 4. In the written statement filed by the respondents No. 2 to 6 and adopted by 1st respondent, it was contended that the office order dated 24.4.2015 was issued by the Municipal Corporation only in compliance with the orders passed by this Court in CWP No. 786 of 2009 on 3.3.2014 and 9.4.2014. The said writ petition was filed by Sector 22 Welfare Society, Chandigarh seeking directions to ensure compliance of the provisions of Municipal Corporation Act to ensure that corridors, shop-cum-flats, shop-cum-offices and booths are kept free from any encroachments. On 10.9.2009, a Local Commissioner was appointed by this Court to visit the markets in Sector 22-C and 22-D, Chandigarh. The Local Commissioner submitted his report before the Court. This Court was perturbed to note that there were large number of encroachments/obstructions in the corridors meant for the shoppers who visit that area. Accordingly, directions were issued for removal of encroachments. Thereafter, status reports were filed in the shape of affidavits informing the Court that obstructions in the corridors and public places in Sector 22-C and 22-D, Chandigarh were removed. This Court insisted that the walking area in those places shall be kept free from encroachments either by hawkers or the shopkeepers. On 19.5.2015, an affidavit was filed by the Assistant Estate Officer, U.T., Chandigarh informing the Court that the walking area which is a public verandah has been cleared from encroachment. The petitioners are encroachers on public passages and the parking areas in the corridors of Shastri Market, Sector 22, Chandigarh. They are not engaged in the business of street vending. However, due to the stay order granted by this Court, the petitioners and other encroachers have started occupying the same again. There is an apprehension that there would be a great loss to human life in case of break out of fire in Shastri Market, Sector 22, Chandigarh. The photographs produced would go to show that there is a complete chaos in the market at present. In compliance of the orders passed by this Court on 2.12.2013, Town Vending Committee was notified on 24.2.2014. Therefore, it is submitted that the writ petitions are liable to be dismissed. 5. The photographs produced would go to show that there is a complete chaos in the market at present. In compliance of the orders passed by this Court on 2.12.2013, Town Vending Committee was notified on 24.2.2014. Therefore, it is submitted that the writ petitions are liable to be dismissed. 5. The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 has been enacted to protect the street vendors who are engaged in self-employment which alleviates urban poverty and provides affordable and convenient services to a majority of urban population through street vending. Considering the significant contribution made by the street vendors to the urban society as a whole, the Act has been enacted. 6. Stationary vendors are those street vendors who carry out vending activities on regular basis at a specific location as per Section 2(k) of the Act. Street vendor has been defined under Section 2(1) of the Act. Street vendor means "a person engaged in vending of articles, goods, wares, food items or merchandise of everyday use in a street, lane, side walk, footpath, pavement, public park or any other place or private area from a temporary build up structure or by moving from place to place and includes hawker, peddler and squatter". The appropriate Government is bound to make Rules as regards the terms and the manner of constituting a Town Vending Committee in each local authority. The "Town Vending Committee" is a body constituted by the appropriate Government under Section 22 of the Act. The association of street vendors shall be a part of the Town Vending Committee. The Town Vending Committee shall conduct a survey of the existing street vendors within the area under its jurisdiction. The subsequent survey shall be carried out once in every 5 years. It is very important to refer to Section 3(3) of the Act which is quoted by the petitioners seeking protection. As per Section 3(3) of the Act, no street vendor shall be evicted or relocated till the survey contemplated as above has been completed and the certificate of vending is issued to all street vendors. 7. Be forever the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 came into force on 1.5.2014, CWP No. 786 of 2009 was filed by Sector 22 Welfare Society, Chandigarh before this Court. 7. Be forever the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 came into force on 1.5.2014, CWP No. 786 of 2009 was filed by Sector 22 Welfare Society, Chandigarh before this Court. On 9.4.2014, this Court, in the above writ petition, made it clear to the Union Territory, Chandigarh and the Municipal Corporation, Chandigarh to keep the walking area free from encroachments either by hawkers or the shopkeepers and to file status reports. In compliance with the directions issued by this Court, the writ petition was disposed of. On 8.4.2015, compliance report in the shape of an affidavit was filed in CWP No. 786 of 2009 when the matter was coming up for filing report by the Assistant Estate Officer, U.T., Chandigarh. In the said report, he has clearly stated that as per the orders passed by this Court on 16.1.2015, the walking area which is a corridor and public verandah were cleared from encroachments in the market area of Sector 22-C and 22-D, Chandigarh. The walking area of the market at Sector 22, Chandigarh was also regularly inspected by the Enforcement Wing of the Estate Office and Chandigarh Municipal Corporation. Resultantly, all encroachments from the walking area has been completely removed. The compliance report was recorded by this Court in CWP No. 786 of 2009. 8. The impugned order dated 24.4.2015 was passed by the Commissioner, Municipal Corporation, Chandigarh only in compliance with the directions issued by this Court. In fact, the encroachments on the walking area in Shastri Market and adjoining area were completely removed and status report was filed as early as on 8.4.2015. But the impugned office order dated 24.4.2015 was issued by the Commissioner, Municipal Corporation, Chandigarh only to check and remove the encroachments pursuant to the orders of this Court. 9. The petitioners filed CWP No. 10774 of 2015 before this Court. But the same was disposed of giving an opportunity to the petitioners to make representation before the Municipal Corporation. The order of stay of eviction of the petitioners was also granted on 1.6.2015. On 3.6.2015, the petitioners submitted a detailed representation before the Municipal Corporation, Chandigarh which was rejected by the Municipal Corporation, Chandigarh on 11.6.2015 justifying the necessity to issue the impugned order on 24.4.2015 to monitor the encroachment of free walking area/corridors. The order of stay of eviction of the petitioners was also granted on 1.6.2015. On 3.6.2015, the petitioners submitted a detailed representation before the Municipal Corporation, Chandigarh which was rejected by the Municipal Corporation, Chandigarh on 11.6.2015 justifying the necessity to issue the impugned order on 24.4.2015 to monitor the encroachment of free walking area/corridors. Thereafter, the present writ petitions were filed and an order of stay was obtained by the petitioners on 22.6.2015. On a careful perusal of the entire material, we did not propose to extend the stay when the matter came up for hearing on 23.7.2015. 10. Learned counsel appearing for the petitioners would vehemently submit referring to Section 3(3) of the Act that the respondents have acted illegally against the spirit of the Act in evicting the petitioners from Shastri Market at Sector 22, Chandigarh. He also submitted that as per Section 3(3) of the Act, the petitioners being street vendors cannot be evicted unless a survey is conducted by the Town Vending Committee and certificates are issued to all street vendors. He further submits that the Rules governing the constitution of the Town Vending Committee were not framed and as a result of which the Town Vending Committee also was not constituted. There was no survey conducted as contemplated under Section 3 of the Act. Therefore, the question of evicting them would not arise, he contended. 11. Per contra, learned counsel appearing for the respondents would vehemently submit that the petitioners have been evicted from the encroachments even as on 8.4.2015 when compliance report was filed before the Court by the Assistant Estate Officer. Referring to the photographs filed by the respondent, they would submit that in the garb of the stay order granted by this Court on 1.6.2014 in CWP No. 10774 of 2015 and the stay order subsequently granted in this writ petition on 22.6.2015, the petitioners started encroaching upon the walking area/corridors of the shops at Sector 22, Chandigarh. But the same also has been removed by the respondents on 23.7.2015, the day when the order of stay was vacated by this Court. It is their further submission that the petitioners cannot take advantage of the delay in framing of the Rules for constitution of the Town Vending Committee and the survey contemplated under the Act. But the same also has been removed by the respondents on 23.7.2015, the day when the order of stay was vacated by this Court. It is their further submission that the petitioners cannot take advantage of the delay in framing of the Rules for constitution of the Town Vending Committee and the survey contemplated under the Act. Inasmuch the petitioners have been evicted long ago by virtue of the directions of this Court and their fresh encroachment following stay orders granted by this Court was also removed immediately after the stay was vacated, they cannot seek for protection of their encroachment on the walking area/corridors of the shops at Sector 22, Chandigarh. 12. It is found that the petitioners having encroached upon the walking area/corridors briskly carried on their business till this Court took cognizance of such encroachments to the utter inconvenience of the shoppers in CWP No. 786 of 2009. Though CWP No. 786 of 2009 was filed prior to the enactment of Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, it is found that periodical directions had been issued by this Court even after the said Act came into force to clear at least the walking area of the market so that the shoppers could breath easily while making shopping in the market. Surprisingly, the petitioners also became party to the above proceedings and they were also aware of the periodical directions issued by this Court in CWP No. 786 of 2009. 13. Only in compliance of the various directions issued by this Court in CWP No. 786 of 2009, the respondents have acted and removed the encroachments on the walking area/corridors in the market. The impugned official order on 24.4.2015 was also issued by the Municipal Corporation, Chandigarh only to comply with the directions of this Court. Therefore, the impugned official order dated 24.4.2015 cannot be termed as illegal. 14. On a perusal of the photographs produced by the respondents, it is found that the walking area and the corridors meant for public and shopkeepers had been kept free of any encroachment as on 9.5.2015. However, after obtaining the above said stay orders from this Court, the petitioners have completely blocked the walking area as well as the corridors causing total inconvenience to the public as well as the shoppers. However, after obtaining the above said stay orders from this Court, the petitioners have completely blocked the walking area as well as the corridors causing total inconvenience to the public as well as the shoppers. As rightly pointed out by the respondents, there is no breathing space for the shoppers or the public to move around the market area meant for their use. The photographs taken on 4.7.2015 after the order of stay was granted by this Court portray the prevalence of utter chaos in the walking area and the corridors. Of course, the Parliament has enacted the benevolent legislation to protect the interest of the street vendors and to enhance the convenience of the public. Now as per the spirit of the Act, the Rules will have to be framed to structure the Town Vending Committee within one year from the date when the Act came into force. But unfortunately, the respondents have faced some roadblock in the matter of notifying the Draft Rules framed in constituting a Town Vending Committee. It is reported by the respondents that composition of the Town Vending Committee was notified on 24.2.2014. 15. The aggressive encroachment made by the petitioners had been taken serious note of by this Court in CWP No. 786 of 2009. Considering the larger interest of the shopkeepers and the public, despite the enactment of the above Act, this Court chose to pass directions for removal of the encroachments at least on the walking area and the corridors in the market. Taking advantage of the stay orders, the petitioners had again flooded the above area meant for walking by the shoppers and the public. As rightly pointed out by learned counsel appearing for the respondents, if any fire breaks out, it is very difficult to wade through by the fire service personnel to douse the fire and reduce the calamity. Therefore, in our view, the petitioners have been rightly kept at bay from the walking area and the corridors immediately after the stay order granted in favour of the petitioners was evicted by this Court. Now it is reported by the respondents that the entire walking area and the corridors have been completely kept free from all sorts of encroachments by the petitioners. 16. Learned counsel appearing for the petitioners produced a decision of the Delhi High Court in Maqbool Ahmed and Ors. Now it is reported by the respondents that the entire walking area and the corridors have been completely kept free from all sorts of encroachments by the petitioners. 16. Learned counsel appearing for the petitioners produced a decision of the Delhi High Court in Maqbool Ahmed and Ors. v. South Delhi Municipal Corporation, 2014(214) DLR 583. That was a case where the possession of the street vendors who were the petitioners in the said writ petition was confirmed right upto the Supreme Court. Further, only a direction was issued by the Court in the above case to the State Government directing to make the Town Vending Committee functional and dispose of the representation as expeditiously as possible, preferably within 6 months. In view of the above, we find that the above decision will not apply to the facts of this Court. 17. We are very much aware of the protection given under Section 3(3) of the Act to the street vendors. Somehow, there is some delay in framing the Rules and constituting the Town Vending Committee to make a survey of the street vendors. But the Court cannot shut its eyes to the ground reality that virtually chaos had been created by the street vendors on the walking area and the corridors as found from the report submitted by the Local Commissioner and the photographs which portray the alarming situation. If the street vendors are permitted to squat upon the walking area and the corridors in the fashion portrayed, there will be a huge loss of life to the public in the event of fire break out. An incident of fire breakout at Sector 19, Chandigarh which caused havoc, was brought to the notice of this Court by learned counsel appearing for the respondents. The shoppers and the public cannot be permitted to walk on the time bomb which is waiting to blow at any time. 18. The encroachment made by the petitioners had been removed as per the compliance report submitted by the respondents before the Court in CWP No. 786 of 2009 about three months ago. Thereafter, they had started encroaching the above area only during a short spell when they enjoyed the order of stay. Presently, the encroachment of the petitioners has been completely removed. Therefore, in the larger interest, encroachment of the petitioners on the walking area and the corridors cannot be permitted. 19. Thereafter, they had started encroaching the above area only during a short spell when they enjoyed the order of stay. Presently, the encroachment of the petitioners has been completely removed. Therefore, in the larger interest, encroachment of the petitioners on the walking area and the corridors cannot be permitted. 19. The fact remains that even after expiry of one year from the date when the Act came into force, the respondents have not made Rules for carrying out the provisions of the Act. The Town Vending Committee has not been constituted and as a result of which no survey was conducted. 20. In view of the above, declining the prayer for quashing the office order dated 24.4.2015, issued by the 2nd respondent and the order dated 11.6.2015 passed by 3rd respondent rejecting the representation made by the petitioners, all the above writ petitions stand dismissed. Respondent No. 1-State of Union Territory, Chandigarh is directed to make Rules for carrying out the provisions of the Act, constitute Town Vending Committee, make survey of street vendors and issue certificate of vending to the street vendors within three months from the date of this order. 21. Respondent No. 1 shall file a compliance report on expiry of the time frame fixed by this Court.