Sodan Singh vs N. D. M. C - 1998 Supreme(SC) 163

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1998 Supreme(SC) 163

1998(2) Supreme 111
Supreme Court of India
(From Delhi High Court)
S.B. Majmudar & M. Jagannadha Rao, JJ.
Sodan Singh -Petitioner/Appellant
versus
N.D.M.C. & Ors. -Respondents
Interlocutory Applications Nos. 83, 114, 33, 38, 62-63, 45-46, 47-48, 56-59, 65-66, 73, 96-97, 106-107, 108-109, 110, 120, 125-126 and 67
In
Civil Appeal No. 560 of 1998
(Arising out of SLP (C) No. 15257 of 1997)
Decided on 4-2-1998
Counsel for the Parties :
For the Appearing Parties : R.F. Nariman, Raju Ramachandran, D.D. Thakur, M.P. Verma, Sr. Advocates, M.M. Kashyap, Dhan Singh Nagar, Mrs. Sarla Chandra, Mrs. Rani Chhabra, (Mrs. M.R. Bhardwaj) Advocate (NP), M.K. Singh, Harish Chander, Mrs. B.K. Brar, Ashok K. Srivastava) Advocate, for petitioner-In-person in I.A. No. 67, Santosh Gupta, K.K. Gupta, Arun K.Sinha, Rajeev Sharma, Krishan Mahajan, P.H. Parekh, Amit Dhingra, N.K. Sahoo, Dr. I.B. Gaur, S.S. Ray, Ms. Rakhi Ray, H.A. Raichura, Manoj Prasad, S.D. Sharma, Ms. Pratibha Jain, Ms. Subhadara, Chaturvedi, Rajesh Nair, Ms. Suman Rastogi, Shiv Pujan Singh, (Irshad Ahmad) Advocate (NP), Kirpal Singh, Debashish Misra, Ms. V. Menon, L.K. Gupta, Rajiv Kaul, Adhya Gupta, D.K. Garg, K.G. Bhagat, (P. Chowdhary) Advocate (NP), Ms. Rani Chhabra) Advocate for Ms. Indira Sawhney, Advocate, in I.A. No. 127, Ms. K. Sarada Devi, K.L. Vohra, P.C. Mudgal, Mohan Pandey, K.B. Rohatgi, Ms. Aparna, Ichatgi Jain, (S.B. Sharma) Advocate for Ms. Pratibha Jain, Advocate in I.A. No. 120, M.A. Krishnamurthy, (P.H. Parekh) Advocate for Sita Ram, Advocate in I.A. No. 68 R.K. Maheshwari, Shalley Bhasin, Advocates.

Headnote:Public Interest Case concerning the hawkers, squatters, etc. in public streets in the New Delhi Municipal Committee Area-Thareja Committee Report determining question of eligibility-IAs filed questioning the adverse orders passed against some of the claimants-Plea of change of trade from tea business to garments business -Allowed-Principle followed by the Committee for determining eligibility approved-Applications disposed of accordingly according to the proof of squatting or hawking submitted-Grant of a sum of Rs. 50,000/- to Mr. Thareja to be paid by NDMC.
       Held that the right to carry on trade in any permissible commodity cannot be allowed to be controlled totally by the NDMC at its sweet will. There is as yet no law made under Article 19(6), except the scheme framed under orders of this Court by the NDMC. Therefore, if a trader wants change in the trade, we do not see how it can be rejected, as long as it is a permissible trade. Such change of trade has to be granted subject, of course, to any lawful conditions that the licensing authority could impose. What we have said above is, of course subject to the terms of the scheme regarding licensable or non-licensable tradings and also subject to the earlier observations of this Court in the first Sodan Singh’s case that the scheme is not meant for luxury items or smuggled goods. (Para 6)
       A principle that only a gap of one year will be condoned has been followed by the Thareja Committee uniformly. The Committee also found it necessary that the squatting or hawking of those in the three groups must be upto the date of inquiry. We are of the view that these principles are relevant and has been uniformly applied. (Para 12)
       It will be noticed that the three relevant periods are (1) prior to 1977 (2) 1978-80 and (3) 1981-1987. Petitioner had a gap of 4 years as he had no receipt after 1983, hence he cannot come in the third category. Merely filing receipts after 1988 cannot help because there is no such category falling for consideration. (Para 20)
       The Committee has followed the same principles even after 1987. In other words for those who, for example, started squatting in 1987 and who continued upto say 1996 when the inquiry was completed, if there was a gap of one year, it was condoned but not if there was a gap of more than one year. (Para 36)
       Further held : After considering the extent of the work and keeping in mind all factors including the fact that Sri Thareja was working full time on this work and was however receiving his normal emoluments as an Additional District & Sessions Judge, we are of the view that a reasonable sum be paid to him in addition to what Sri Thareja has drawn as his normal emoluments as a District Judge. We notice that in fact he had visited the various places where the squatters were claiming that they were conducting their business. Most of them were surprise visits. Several hundreds of such visits had to be made while checking up the claims of more than 5000 claimants. Keeping all these aspects in mind, we are inclined-in the place of the quantum claimed-to grant a sum of Rs. 50,000/- only and we accordingly direct the NDMC to pay to Sri Thareja the said sum within two weeks from today. (Para 43)

Judgment

M. Jagannadha Rao, J. - I.A. 83/ 1995 : (Bishwanath Roy).

Claimant has been found eligible but only for business in ‘tea’. The applicant’s place of garment business was not accepted. According to him he cannot, due to illness, carry on tea business.

2. The Committee found in its order dated 12.12.1990 that the applicant did tea business from 1980 to 1989 was entitled only to trade only in tea and could get a stall/kiosk for tea business in I.O.B. area.

3. Petitioner then applied to NDMC on 9.3.1994 for change of trade to ‘garments’ on account of ill-health-NDMC filed reply dated 2.8.1995 before the Thareja Committee that they can consider change of trade from food items to other item only if no objection is given by Thareja Committee and thereafter they will consider the case on merits.

4. Committee noted the submissions on 2.8.1995 and said that the matter will be dealt with in main Report.

5. At pp. 41-42 of the main Report, the Committee pointed out that NDMC wanted to have the discretion in regard to applications for change of trade to be totally reserved to it. The Committee said that if discretion is to be given to the NDMC it is most likely that it will be abused. For example, the Committee said, if garment trade is allowed at Indian Oil Bhawan, a squatter can earn Rs. 2000/- per day.

6. We agree that the right to carry on trade in any permissible commodity cannot be allowed to be controlled totally by the NDMC at its sweet will. There is as yet no law made under Article 19(6), except the scheme framed under orders of this Court by the NDMC. Therefore, if a trader wants change in the trade, we do not see how it can be rejected, as long as it is a permissible trade. Such change of trade has to be granted subject, of course, to any lawful conditions that the licensing authority could impose. What we have said above is, of course subject to the terms of the scheme regarding licensable or non-licensable tradings and also subject to the earlier observations of this Court in the first Sodan Singh’s case that the scheme is not meant for luxury items or smuggled goods.

7. We, therefore, hold that the applicant’s application for change of trade to ‘garments’ cannot be denied. When he is an eligible squatter, there is no question of restricting his trade to tea business only. The NDMC will issue orders of change in trade from tea to garments because it had taken a stand earlier in its reply dated 2.8.1995 before the Thareja committee that it will take up the matter as and when no objection is received from the Thareja Committee. This IA is therefore allowed accordingly directing the NDMC to permit change in trade to ‘garments’ so far as the petitioner is concerned.

8. In case any change of trade is disallowed and parties are aggrieved, they shall be entitled to resort to appropriate legal remedies, subject to the principles laid down above. IA allowed as stated above.

IA 114/1997 (Smt. Laxmi & 30 others)

9. This IA is by the verified eligible squatters as declared by the Thareja Committee. Their contention is that various sites were referred to by the NDMC in its scheme of places submitted to the Court on 14.2.1997 but in a latter scheme dated 21.7.1997 of the places, Site No. 1 adjacent to boundary wall of NDMC parking and Jeevan Bharti-towards existing tehbazari sites/shops and also towards mochi tharas sites-for four kiosk-22 tehbazari, has now been omitted. It is pointed out further that this site which was accepted by the Thareja Committee in its report at various places (p. 105, 108, 110, 115 of its report) is now included in the list of objectionable items, at serial No. 33.

10. In view of the rejections of the objections of the NDMC in regard to the various places, we accept this application and the proposal to delete site No. 1 of the scheme dated 14.2.1997 is rejected. Site No. 1 shall remain as one of the accepted sites. IA is disposed of accordingly.

I.A. 33/1994: (Shiv Kumar Sharma).

11. The claim of the petition

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