IN THE HIGH COURT OF DELHI AT NEW DELHI
CM NO. 3447 OF 2005
WP (C) NO. 2334 OF 2005
IN THE MATTER OF:
Dharam Singh & Ors ... ...Petitioners
MCD & Ors ... ...Respondents
AND IN THE MATTER OF:
Master Plan Implementation Support Group, through its Planner, Gita Dewan Verma, 1356, D-I Vasant Kunj, New Delhi - 110070 ... ...Applicant / Intervener
AND IN THE MATTER OF:
APPLICATION ON BEHALF OF THE APPLICANT/ INTERVENER UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA READ WITH SECTION 151 CODE OF CIVIL PROCEDURE FOR LEAVE TO INTERVENE IN THE ABOVE MENTIONED WRIT PETITION
MOST RESPECTFULLY SHOWETH:
- That the applicant/ intervener is a platform of citizens groups with legitimate stakes in benefits of planned development in Delhi as per the statutory Master Plan for Delhi. The applicant comprises residents of villages, residents of pre-plan bastis, apartment residents and service provider groups like hawkers and domestic sector workers. The applicant has been engaged with the planned development of Delhi and has been taking up several issues concerning the different stakeholders in the planned development of Delhi. The applicant has filed W.P.6980/2002 (Master Plan Implementation Support Group & Ors v/s DDA & Anr) in this Hon’ble Court seeking reliefs in relation to the implementation of the provisions of the Master Plan. The purpose of this application seeking intervention is to bring to the attention of this Hon’ble court certain portions of the pleadings therein and communications relating thereto that have a bearing on the instant matter, about which the applicant has come to know through news report of 7.3.2005 and orders searched on the internet, typed copies of which are annexed herewith as ANNEXURE-A/1 (colly).1
- The present writ petition concerns a pilot project for hawkers sanctioned by the Municipal Corporation of Delhi (MCD) and is being sought to be implemented through an NGO, ‘Manushi’, an NGO which is the second respondent in the writ petition. The applicant submits that, in the circumstances outlined hereinbelow, the attempts by the MCD and Manushi in devising and executing the pilot project is viloative of the Delhi Master Plan as well as the Delhi Development Act and the Municipal Corporation of Delhi Act. On the other hand, in the writ petition filed by the applicant, the very issue of the wilful non compliance with the binding provisions of the Master Plan recognising the entitlements of hawkers has been raised and in response thereto the DDA had undertaken that all hawkers would be accommodated as per the pilot project and in conformity with the Master Plan provisions. However, what is actually happening is contrary to the Delhi Master Plan as will be noticed herein below.
- That Delhi Master Plan (‘DMP’) notified in 1990 sets out detailed, explicit and adequate provisions for integrating hawkers throughout the city in planned commercial space, work centres, etc, and, as a corollary, prohibits misuse of other areas, such as roadsides, for unplanned and problematic hawking that persists in the city on account of the non-implementation of the mandatory ‘DMP’ provisions for enforcement of which the applicant and other petitioners in WP 6978/2002 (including representatives of hawkers forum (VKRPVEM) and of flat residents’ associations) have been making synergistic efforts since 2000 and had jointly approached this Hon’ble Court to challenge unrestricted disposal of planned commercial space and in counter-affidavit of January 2003 in WP 6980/2002, respondent DDA stated:
- “in response to the VKRPVEN’s request the Respondent Authority has initiated a pilot project for the informal sector / hawkers in one of the shopping centres of the DDA in Vasant Kunj. It is further submitted here that this will be extended to other shopping centres to accommodate unplanned hawkers” (para-12); and
- “...hawkers will be accommodated as per the pilot project and in conformity with the Master Plan provisions. It is submitted here that the required space for the hawkers will be designed in the proposed local shopping centres, convenient shopping centres and community centres...” (para-15)
- That at instance of NGO Manushi/ CVC reference about its contentions about exploitation of hawkers by municipal and police staff, PMO had come out with a policy in August 2001, after which Manushi started its Sewa Nagar project and in 2002-2003 secured, with MCD, the Supreme Court order whose interpretation appears to be an issue in the instant matter (from Order of 23.02.2005 in it). A typed copy of the account of how this Supreme Court order was obtained, as published in the journal Manushi and relevant to its interpretation, is annexed herewith as ANNEXURE-A/2.2
- That in response to communications on behalf of the applicant about non-implementation of DMP provisions for hawkers, diversion of space meant for them and NGO initiatives in disregard of DMP (inclusive of the account at Annexure-A/2), on 10.09.2004 Secretary, Central Vigilance Commission, wrote a confidential/ most immediate letter (with copy to PMO and DDA CVO and the applicant’s planner) for an action plan to Chief Secretary Govt. of NCT Delhi, whose staff forwarded it to various authorities, including MCD, as mentioned in copy to the applicant’s planner of a similar forwarding of 25.10.2004 of a copy for information of a confidential letter from her in context of the confidential CVC reference. Typed copies of CVC reference of 10.09.2004 and GNCTD letter indicating forwarding of the same to MCD, etc are annexed herewith as ANNEXURE-A/3 (colly).3
- That MCD-Manushi ‘pilot-project’, which started regardless of DDA’s assurance to this Hon’ble Court about their implementation, continue regardless of CVC reference for action plan for the same and that authorities have not answered questions about the legal basis of MCD-Manushi initiatives – in violation of DMP/ Delhi Development Act as well as MCD Act – either in WP 6980/2002 or in response to letters, such as of 16.10.2004 to MCD Commissioner and of 09.12.2004 to Secretary MoUD, annexed herewith as ANNEXURE-A/4 (colly).4
- That wilful ‘policy’/ ‘pilot-project’ ideas regardless of DMP now also pose risk of dilution in DMP-2021 its statutory provisions/ restrictions for informal sector by frustrating the constitutional processes by which several, including the applicant, have been seeking their enforcement, an illustrative representation about which, from the applicant to Lieutenant Governor / DDA Chairman is annexed herewith as ANNEXURE-A-5.5
- The purpose of the present intervention is to ensure that the beneficial provisions in the Delhi Master Plan which recognise the entitlements of hawkers are complied with and that there is no selective enforcement of pilot projects in particular localities and through particular NGOs contrary to the provisions of the Delhi Master Plan. The Delhi Development Act itself envisages a consultative process and in particular consultation with the affected groups, in this case, the hawkers. The pilot project as is now sought to be implemented by the MCD through the NGO will seriously undermine the statutory processes as well as the binding provisions of the Delhi Master Plan. Hence this intervention by the applicant so that appropriate orders and directions may be issued by this Hon’ble Court.
In the circumstances, the applicant, prays that this Hon’ble Court may be pleased to:
a) permit the applicant to intervene in this matter and make submissions at the time of arguments; and
b) pass such other order or orders as this Hon’ble Court may deem fit.
Intervener Submissions (17/05/05)
1. This hawker-market comprehensively violates the Master Plan:
- It violate Master Plan policy for informal sector which, in line with Court orders for hawking zones to relieve public streets while protecting rights of hawkers, provides for integrating 3 to 4 lakh units in a planned way at various other sites that such hawker-markets on roads will spare for profitable misuse.
- It violates / jeopardizes the Zonal Plan scheme for the area – a government housing colony – for which Zonal Plan requires: “…comprehensive redevelopment schemes with provision of community facilities within stipulated norms of MPD-2001 be prepared… Piecemeal approach for development without a comprehensive scheme is not to be sanctioned.”
- It violates Plan norms for facilities – and the policy of hierarchy in development that they articulate so that no neighbourhood is burdened with facilities in excess of local needs. Local streets (12 or 20 m R/W) “are intended for neighbourhoods (or local use) from which through traffic is discouraged” and for 15000 population, norms permit about 100 informal units in all and maximum concentration of 22 at any one location, as follows:
- Facilities for 15000 population:
- Type - Nos | Informal units: at each > Total |
- Local Shopping Centre - 1 | 22 > 22
- Convenience Shopping Centre - 3 | 13 > 39
- Neighbourhood Park - 1 | 2 - 3 > 3
- Primary School - 3 | 3 - 4 > 12
- Secondary School - 2 | 5 - 6 > 12
- Residential pocket of 1000 - 15 | 1 > 15
- It violates Layout Plan (procedure) requirements. The Master Plan requires layout plans to indicate use premises to operationalise the master plan / zonal plans. ‘Informal Sector Unit’, being a duly listed Use Premise (in Schedule to Development Code), has to be indicated / incorporated in approved Layout Plan under Clause-7 of the Code. Lack of clarity about mobile / stationery units also make the scheme short of Layout Plan (content) requirements arising from the Plan requirement about colourful and efficient design.
- So-called temple housing so-called goddess would also be Use-Premise violation, as Informal Unit premise is for trade use
2. The scheme involves illegal licensing as follows:
- s.14 of DD Act prohibits permitting use of land other than in conformity with Master / Zonal Plan, ie, it is not open to MCD or the NGO to permit hawking on the site in view of the foregoing.
- s.21(1) of DD Act requires Authority or local authority to dispose off land (including, as per s.21(3), “by way of sale, exchange or lease or by the creation of any easement right or privilege”) according to Plan, ie, it is not open to MCD confer upon an NGO right or privilege for such scheme.
- MCD is empowered u/s.481(E-5) to make byelaws in respect of “permission, regulation or prohibition of use or occupation of any street or place” for mobile or stationery hawking. This itself does not envisage NGO mediation, nor does Chopra Committee regime (that also did not identify the site for tehbazari). Having adopting Cabinet-approved National Policy by Resolution No.561 of 25/10/04, MCD cannot even frame byelaws for regulation by NGO since said policy calls for regulation by Ward Committees composed of “representatives of hawkers, planners, police, local councillors, RWAs, trader associations, municipal functionaries”.
- Supreme Court order of 12/09/1988 in MCD v/s Gurnam Kaur prevents MCD from facilitating – or facilitating NGO to facilitate – private trade on public streets. This is even more so in view of MCD’s potential role under Master Plan Development Code Clause-3(7) and its powers to make byelaws under s.481(E5) in securing implementation of Master Plan scheme for 3-4 lakh hawkers in compliance of the suggestion in said Order.
- Supreme Court orders to MCD in MC Mehta v/s UoI & Ors against licensing non-conforming use (industries) and its observation in judgment of 07/05/2004 in IA 22 therein: "… an association of small scale industries, has taken the stand …since the industries were working with the consent of the Government, it cannot be said that the use by industries is non-conforming. The stand is wholly misconceived. An illegality would not become a legality on inaction or connivance of the Government authorities." Just as non-conforming industries licensed by MCD were shut, an illegally licensed road-side hawker-market built around time of start of Manushi’s was demolished by MCD on 09/04/2005.
3. The scheme involves development / improvement works that can not have valid mandatory approvals, as follows:
- The area in question is a development area with a duly notified Zonal Plan and s.12(3)(i) of DD Act prohibits any person or body (including of Government) from development in it without written permission of the Authority on application u/s.13, which the Authority – of which MCD Commissioner and 2 councillors are part – cannot give in view of s.6, s.14, s.29, 30, 31 and 34-A.
- s.427 of MCD Act requires approval by the Corporation and sanction of Central Government for any improvement scheme, both prevented by s.429 requiring compliance with Master Plan / Zonal Plan. So-called approval by MCD Resolution of 09/11/02 was only for “new policy measures proposed” and not a scheme per se and subsequent Resolution of 25/10/04 adopting the National Policy precludes Corporation approval since the scheme is contrary to National Policy that calls for Plan provisions (citing Delhi Master Plan norms as illustration).
- The scheme is a subdivision scheme to carve out use premises for (mobile and stationery) Informal Sector Units and ancillary marketplace uses and requires layout sanction under Clause-3(6) of Master Plan Development Code before incorporation in duly approved layout plan for the area as per Clause-7(2). The obfuscation about rehdis/platforms, R/W section, etc, and minutes of meetings recording perceptions (not measurements) apropos R/W improvement, etc, point to absence of an adequate layout plan, forget sanction after appropriate technical scrutiny.
- MCD is empowered u/s.481(K1-4) to make bye-laws for improvement schemes, including for “local inquiries and other hearings that may be held before a scheme is framed, approved or sanctioned”. Public Notice is also mandatory u/s.11A of DD Act for Plan modification. The scheme, however, is underway without public scrutiny on arbitrary single-tender basis, a procedure that cannot have any valid approval / sanction.
- MPLADS funds have been routed through MCD Commissioner for it, but the scheme does not comply with most MPLADS guidelines, not being for a durable asset and being arbitrarily executed. There is also no MPLADS WORK board on the site (and the NGO continues to claim favour of MCD work at its cost while MPLADS funds are public funds and this is no good work ).
4. This patently illegal scheme has been going on since 2001. Each hawker “contributes” each year over 6000/- towards license / cleaning / membership fees and more by way of challans for breaking NGO-made self-regulation rules, NGO-prescribed cult ceremonies, etc, and is to pay 30,000/- for NGO-designed rehdi / stall. For 150-160 hawkers this comes to about 50 lakhs for market-making and over 10 lakhs per year for fees, etc – without even being party to the MoU. For “facilitating” this (and thereby also sparing of planned hawking space for profitable misuse), the NGO has 25 + 10 lakhs from MPLADS and more from private fund-raising. This is the “model” being “piloted” for 4 years in one market for 150 and is now proposed in draft Master Plan 2021, with no other basis at all.
Authorities are fully seized of this drift (from correspondence from others since January 2001), continuing in incredible “bhagidaari” well documented in articles published by the NGO in its magazine that provide several significant facts that the pleadings seem to omit.
- 1. ANNEXURE-A/1 (colly): (B) TEXT OF ORDER OF 09.02.2005
WP(C) 2334, 2335, 2336/2005
DHARAM SINGH and ORS. ..... Petitioners | Through Mr. V.K. Shali, Advocate.
MCD and ORS. ..... Respondent | Through Mr. Anoop Bagai, Advocate for MCD. Ms. Hema Kohli, Advocate for respondent-3. Mr. Kailash Gambhir, Advocate for respondents 4-5. Ms. Pinky Anand, Advocate for respondent-NGO. Mr. Sandeep Aggarwal with Mr. Dhiraj Mishra, Advocates for respondent-DJB.
HON'BLE MR. JUSTICE S.RAVINDRA BHAT
O R D E R
After some arguments, learned counsel for the petitioners submit that petitioner no.1 resides in the locality, namely, Sewa Nagar. Petitioners 2 and 3 do not appear to be registered bodies nor is there any membership indicated in any manner. Proper affidavit indicating as to where the first petitioner resides as well as the exact status of the petitioners 2 and 3 be filed before the next date of hearing.
List on 23rd February, 2005.
On the next date of hearing, complete records containing the minutes of the meetings between various authorities such as MCD, NGO, CPWD and DJB be made available in the Court.
S RAVINDRA BHAT, J FEBRUARY 09, 2005
ANNEXURE-A/1 (colly): (A) NEWS ITEM IN HINDUSTAN TIMES, 07.03.2005 (P.2)
Model market to give hawkers their space
Vibha Sharma, New Delhi, March 6
THE SEWA Nagar colony will soon show the city how giving hawkers a market of their own can end encroachment of streets and lanes.
The MCD and an NGO Manushi are together building a model market for vendors in the colony. The Rs. 25-lakh experimental project was commissioned in November 2003 and is now nearing completion.
The project had run into rough weather lately with two residents’ welfare associations (RWAs) appealing in the Delhi High Court for an interim stay. The RWAs claimed that the market would block traffic and jam roads. The court refused to give a stay.
Manushi’s lawyer Pinky Anand said the market isn’t new. “People with vested interests are opposing the project. Criminals and police collect protection money from vendors and it’s in their interest that the hawkers are not given a legal status,” she said.
Architects have re-designed the rehris (carts) and platforms in Sewa Nagar to improve their functionality and aesthetic appeal. In the first phase, 159 vendors would be accommodated.
The vendors have to stay within their designated area (called sanyam rekha or line of self-discipline) and would not be allowed to set up any permanent structures outside their allotted space. Vendors who violate rules would be fined and may even lose their membership in the project. The space near parks would be free of vendors. “The project involves providing open spaces for cultural events and maintaining parks. Even after granting stalls to vendors, a 9-feet wide payment would be left free for use,” said Madhu Kishwar of Manushi.
Kishwar said the Supreme Court has asked the MCD to find a way to absorb vital service providers. As part of a new policy, all roads have been declared no-hawking zones, while squatting is allowed on pavements. After Sewa Nagar, a vendor market near CGO Complex will be taken up.
- Hawkers will either have permanent stalls or aesthetically designed carts (pic)
- A 9-feet wide pavement will be left for pedestrians
- Hawkers will have to stay within designated areas. Violaters will be penalised.
ANNEXURE-A/1 (colly): (C) TEXT OF ORDER OF 23.02.2005
DHARAM SINGH and ORS. ..... Petitioner | Through: Mr. V.K. Shali, Advocate.
MCD and ORS. ..... Respondent | Through:Mr. Anoop Bagai, Adv. for R-1/MCD. Ms. Pinki Anand with Ms. Richa Srivastava, Advocates for respondent No.2-NGO. Mr. Sandeep Aggarwal with Mr. Dhiraj Mishra, Advocates for respondent No.6/DJB. Mr. Kailash Gamhir, Advocate for respondents No.4 and 5.
HON'BLE MR. JUSTICE S.RAVINDRA BHAT
O R D E R
Issue notice to the respondents, returnable for 17.3.2005.
Mr. Bagai accepts notice on behalf of respondent no.1. Ms. Pinki Anand, Advocate accepts notice on behalf of respondent no.2. Mr. Kailash Gambhir, Advocate accepts notice on behalf of respondents no.4 and 5. Mr. Sandeep Aggarwal, Advocate accepts notice on behalf of respondent No.6-Delhi Jal Board. Counter affidavits to be filed in two weeks. Rejoinder be filed within one week, thereafter.
Mr. Shali, learned counsel, submits that the applicants petitioner are aggrieved by a pilot project which sanctioned by the Municipal Corporation of Delhi and is being implemented through the second respondent, an NGO. The project envisions use of certain portions of road space (to extent of about 9 ft.) for vendors. It is submitted that this project is being implemented, on the wrong interpretation of a Supreme Court order. Mr. Shali has relied upon the text of the order which records the existence of the project and the policy, and at the same time the order expressly states that it will not be construed as a command/ direction.
Mr. Shali has relied upon certain correspondence, inter se, between the CPWD, Land DO, MCD and Delhi Jal Board raising various questions about the manner-in-which the project is to be implemented, and also the concerns raised in that regard. During the course of hearing Mr. Bagai produced a copy of the Minutes of the Meeting convened, dated 1.12.2004 to which various agencies, including the representatives of Land DO, CPWD, MCD and the Delhi Jal Board were parties. It is evident that all these authorities/ bodies had knowledge about the project/scheme and had been making suggestions with regard to the working out of the Scheme.
The documents annexed along with the petition also suggest that the Commissioner of MCD has been taking interest and going into the concerns expressed by other agencies from time to time. Mr. Gambhir appearing for the LandDO and CPWD and Mr. Sandeep Aggarwal on behalf of the Delhi Jal Baord state that there is no objection in principle, with regard to the Scheme as it exists. Mr. Gambhir further states that this submission is on the clear understanding that what is proposed to built as per the policy or project will not be in the land owned by Land DO and being maintained by CPWD.Mr. Aggarwal for Delhi Jal Board submits that there ought to be no construction activity on the land above the sewer lines.
In the circumstances, I am of the view that no case is made out for grant of interim relief claimed, at this stage.
The application is disposed of accordingly. DASTI.
List the petition for final disposal on 17.3.2005
S RAVINDRA BHAT, J
FEBRUARY 23, 2005
- 2. ANNEXURE-A/2
EXCERPT FROM MANUSHI, ISSUE NO. 135 (MARCH-APRIL 2003)
Major Breakthrough for Street Vendors
MANUSHI Hawker Market Project Gets Supreme Court Clearance
In issue number 124 of MANUSHI we had published a report of a Jan Sunwayi (Public Hearing) of street vendors and hawkers organized by MANUSHI in May 2001. The subsequent campaign on behalf of this sector as well as the cycle rickshaw pullers and operators of Delhi led to the announcement of a new reformed policy framework for these two sectors by Prime Minister Atal Bihari Vajpayi. However, we faced tough resistance from both the political as well as the bureaucratic establishment in our attempts to get that policy implemented. We have kept our readers informed of some of MANUSHI’s follow-up work on these two fronts. These are mere glimpses into a very complex battle. Once we have concrete results to show, we hope to tell the full story and the many important political lessons we have learnt in the process, including valuable insights into the nature and functioning of the Indian state. In the meantime, we try keeping Manushi friends informed about all major developments. In the last issue of MANUSHI, we had provided our readers with an update on our efforts on behalf of the cycle rickshaw sector, which has so far produced only marginal results. At the moment, that battle is being fought mainly through the courts. However, in the case of street vendors, we withdrew our petition from the Court and instead tried persuading the administration through a variety of means to look afresh at the issue. Fortunately, this has worked better than the legalistic route. This report provides an update on MANUSHI’s work on the vendors’ front.
The main stated prejudice among city administrators and the city elite against the presence of street vendors and hawkers is that they clutter roads and pavements, bring squalor to the areas they squat in, and obstruct the smooth flow of pedestrian and other traffic. None of our arguments about the valuable economic services they provide to urban citizens were cutting much ice with city administrators for the last three years.
That is why MANUSHI offered to demonstrate through a concrete example that hawker markets could easily be organised in an orderly and aesthetic manner, provided some thought and care was put into the task (See issue No.130). We offered to undertake two pilot projects at Sewa Nagar and CGO Complex where we would develop model markets for hawkers …
The Tide Turns
For long years, MANUSHI’s diverse efforts to get the officialdom to be responsive to the needs of this vital sector of our economy were being stonewalled. Fortunately for us, Mr Rakesh Mehta took charge of the Municipal Corporation of Delhi (MCD) from Mr Aggarwal in 2002. Before him, the only officer who till then had given us a good response was Mr Negi. But as long as the MCD was headed by an officer averse to citizen’s involvement, even those officers who wanted to lend support could not be very effective. Mr.Mehta brought about new energy into administration which galvanised many other officers in his team, proving yet again that if the person on the top provides dynamic leadership and demonstrates his ability to institutionalise measures for transparency and citizens’ engagement things start changing fast. He is an officer known for his integrity, efficiency and commitment to improve the quality of administration in whichever job he is placed. He has introduced numerous important reforms in municipal functioning providing for transparency, citizens’ involvement and reduced opportunity for bribery, ever since he took charge of the MCD.
Reliable Litmus Test
Over the years we have found a simple reliable litmus test for gauging the corruption level of any officer: an honest officer is invariably open to citizens’ involvement and suggestions for improvement. By contrast, an officer who uses his office of power mainly to siphon off public funds and extort bribes will almost always be hostile to the idea of citizens’ engagement in decision making processes and will thwart all attempts at bringing about improvements in the system of administration. The more obstructive and opaque a system, the higher the bribes that flow into the coffers of officials. Corrupt officials will do all they can to please their political and administrative bosses but make sure that the ordinary citizen has no power, no role to play even in domains where involvement of citizens is absolutely essential.
In sharp contrast to the attitude of Mr Rakesh Mehta, the dealings we had with the then NDMC Chairman, Mr Subhash Sharma, left us totally demoralised. When he was NDMC Chairman, he had let loose an unprecedented reign of terror on street vendors operating in areas under his charge such as Connaught Place.
NDMC ... ...
To begin with, Mr Mehta too was sceptical about our pleadings on behalf of street hawkers because he felt Delhi would be deluged with impoverished migrants from villages. For an administrator dealing with an already unmanageable city like Delhi, the prospect of many more homeless and impoverished people descending on Delhi in search of livelihood can be indeed daunting. Therefore, at one level, Mr Mehta also believes that government should not make Delhi such an attractive destination for the village poor that they feel they can have easy access to earn a livelihood in this city.
However, once he was convinced that MANUSHI may have a viable proposal for bringing in greater civic order and cleanliness than prevails at the moment under the MCD jurisdiction, he adopted our project with enthusiasm. His first challenge was to get the proposal passed by the standing Council of the Municipal Corporation where he faced tremendous opposition from politicians of all hues. Even when they reluctantly approved the model market proposal, both BJP and Congress corporators made common cause with one another in opposing the involvement of MANUSHI in developing and upgrading markets because they saw this as an erosion of their powers as elected representatives of those areas. Citizens’ initiative without the political patronage of the local corporator, MLA or MP is seen as a serious threat to their power base and, therefore, resisted with determination.
Mr Mehta did not at that stage make an issue of who was to implement the scheme and simply got the project cleared through the Municipal Council.
Supreme Court’s Clearance
However, since the existing system of restrictive tehbazari licenses has been worked out by the Supreme Court which had also appointed two different committees headed by Justice Chopra and Justice Thareja to examine the genuineness of the claims of those who applied for tehbazari under the Supreme Court devised scheme, Mr Mehta was told by his own officials that he would be committing “contempt of court” (an offence punishable with imprisonment of up to six months) if he allowed the two pilot projects to come through since that would amount to legalising the existence of vendors in these two markets in “defiance” of the limits set by the Supreme Court.
Therefore, his next challenge was to get the Supreme Court to put its stamp of approval on the model market project. He chose the best possible lawyers for the case and allowed MANUSHI to work closely with them. Mr Mukul Rhatagi was assisted by Sanjeev Sen in the case. Unlike the usual run of government lawyers, Mr Rohtagi and Mr Sen took on this case with conviction and enthusiasm. The petition they filed in the Supreme Court on behalf of the MCD is an impressive landmark in the history of governance in post-independence India. (See extracts from the MCD petition on pages 10-13).
A New Landmark
Those who are familiar with the functioning of the government and of law courts know that a vast amount of litigation in India is the outcome of violation of people’s rights by various agencies of the government. Since government officers do not have to pay anything from their pockets for fighting court cases, they tend to harass people no end. even when people reach courts to seek redressal, government lawyers usually prolong litigation to the maximum possible extent because the longer the case drags on, the more money they make. Government agencies rarely accept their faults and even when courts rule in favour of citizens, the officials concerned do their best to thwart redressal measures.
However, in this case the MCD petitioned the Court with the open admission that the existing municipal policy with regard to hawking and vending licenses had been a failure in achieving the goal of restricting the number of street vendors in the city and lent itself to easy abuse. This admission required dexterous handling because the entire licensing system was devised and sealed by the Supreme Court in the Gainda Ram vs MCD case. To tell the mighty Supreme Court that their system had proved a disaster is a risky affair since it could easily be interpreted as “contempt of court.” Also for a Municipal Commissioner to admit in writing that municipal officials working under him are abusing the system requires real courage and integrity that comes only if one has a clean track record.
Where Corrupt are Fearless
The supreme irony of this legal intervention should not be missed: officials who allow illegal vendors to proliferate in the city because they can then fleece them with impunity, need no permission from the Court, nor do they even fear being hauled up for contempt of court. However, an honest officer trying to improve things is advised by his colleagues that the Court might send him to jail for his efforts unless he gets a clearance from the judges. This was not an empty threat. It is not beyond the corrupt among MCD officials to instigate a tout or a patronised vendor to file a contempt case in the Court, had Mr Mehta gone ahead without Supreme Court Clearance.
Media Publicity Boomerangs
One of the most important and valuable lessons we learnt through this period is that as long as officials think you are pointing to government flaws to gain media publicity and corner international grants, even the honest among them remain sceptical or hostile to your efforts. If they get the impression that activists are only interested in making a media splash, and don’t really care about solving problems, there is little chance of getting them to be responsive. In order to make the slightest dent in the official psyche, you have to be able to convince them that you are not for publicity and that you don’t just find faults but have viable, concrete solutions to offer.
For example, in the early stages of our campaign, we made very little headway because the Lt. Governor of Delhi was extremely upset at the media coverage given to MANUSHI’s expose of street vendors’ plight in our cities. The Prime Minister’s new policy intervention came as an added irritant. Once we realised that criticism through newspapers was causing a big mental block, we voluntarily gave it in writing to the L.G. that we would refrain from press publicity as long as some channels of communication were kept open by the administration and we were allowed to prove the viability of our project through concrete demonstration.
Even so, it took two years of slow and patient lobbying to get this important development whereby at least some MCD officials themselves acknowledged the need for discarding the existing tehbazari system because of defects and avenues for corruption inherent in it.
Support of Politicians
However, our previous experience had taught us that official orders could hardly be implemented in the absence of local political support. Corporators, MLAs and MPS are extremely wary about any “external” intervention involving the urban poor – be they squatters, hawkers or rickshaw pullers, since they constitute a sizeable and pliable “vote-bank”.
Thus in order to blunt the hostility of the local Congress Corporator of Sewa Nagar, we decided to get in touch with the Delhi Pradesh Congress President, subhash Sharma, whom I had known since my student union days, but had lost touch with all these years. Though he was well aware of MANUSHI’s criticism of various aspects of Congress politics, as soon as we asked for support of the Congress Party corporators for our pilot project, his response was: “This is the first time my sister has asked me for anything. Take it that this will be done.” But he imposed one “condition” that we should undertake the project in his constituency of Kalkaji as well. Thereafter, things moved swiftly. Within three days, he arranged for me to meet the Chairman of the Standing Committee, Mr Ram Babu Sharma, who had all this time serious misgivings about our pilot project. But once he was told that Subhash Sharma had adopted it, Ram Babu also assumed a brotherly role.
We got a good glimpse into the working of our system when, during our first meeting, Ram Babu openly declared: “Behenji, we are very clear on this. When we don’t want to do something we know how to obstruct it, even if orders come from the Supreme Court or the Party High Command. at such times, there is no point citing rules and court orders to us. But when we want to do something, we put aside all rule books and just go ahead and do it. Now that we have accepted you as our sister and you have come to seek our help, we will make sure it works. But if you had by-passed us, we would have found any number of ways of thwarting your work.”
This is not a simple case of triumph of bhai biradrivad over rules, laws and the whole concept of citizen rights because there is no real kinship tie between us. They would not have embraced me warmly as a sister if they had felt that I might use this work as a way of cultivating a political base. Moreover, as long as this project seemed to enjoy bureaucratic patronage, courtesy Rakesh Mehta, the political establishment would not let it take off. However, as soon as we showed willingness to acknowledge their role and authority, political leaders were willing to cooperate, provided we do not try building a parallel electoral base in their area.
Probably at this point it is worth noting that when the BJP was in power at Sewa Nagar before the congress, we had approached their corporators as well. But despite all our efforts we failed to convince them into supporting the avowed policy of their very own Prime Minister.
An essential requirement for the success of this pilot project is to discipline and bring under control local police and municipal inspectors because it is they who encourage vendors to create disorder by allowing those who pay higher bribes to position themselves ahead of all others even if it means creating chaos and obstructing traffic.
The real battle has begun now. Our success will depend on whether or not we can ensure strict civic discipline about sanitation and hawkers staying within allocated spaces (the sanyam rekha) including those who may try to break it by bribing the police or currying favour with the local corporation and finally whether we can ensure the continuity of such model markets through strengthening and institutionalising vendors’ own self regulatory mechanisms even without outside monitoring.
- 3. ANNEXURE-A/3 (colly): (A) TYPED COPY OF CVC REFERENCE OF 10.09.2004
DO No. 001/W&H(DDA)121/5957 Dated: 10 SEP 2004
SUJIT BANERJEE, I.A.S, SECRETARY GOVERNMENT OF INDIA CENTRAL VIGILANCE COMMISSION, Satarkta Bhawan, G.P.O.Complex,Block A, INA, New Delhi 110023, Tel. : 011-24618891
The problems faced by the street hawkers in Delhi have been brought to the attention of the Commission, especially with regard to non-implementation of the statutory Master Plan provisions of the DDA for allotting planned space for hawkers in Delhi. Even though space has been set aside for hawkers, it has been pointed out by some concerned responsible citizens that in reality the hawking space provided in the Master Plan is being diverted to other uses. Profiteering on public land leads to extortion by junior officials of police and civic agencies leading to organised corruption.
A reference has also been received from the Prime Minister’s Office with regard to the extortion being faced by petty vendors and rickshaw pullers in Delhi. The former CVC has written to the Chief Minister of Delhi in 2001 on the subject which led to the then PM’s advice to the Lt. Governor of Delhi to address the task of policy reform in the present licensing system for hawkers and cycle rickshaws. It is understood that with regard to PM’s policy initiative for hawkers in Delhi, a Committee has been constituted under the chairmanship of Minister of State for Urban Development to prepare a national policy for street vendors to save these marginalized sections of society from exploitation by junior officials of police and civic agencies.
I shall be grateful if you can personally intervene and take the initiative in conceptualising an action plan with regard to Delhi.
Chief Secretary, Govt. of NCT Delhi,
Secretariat Building, R.No.702B, C-Wing
- Ms. V.Vidyavathi, Dy.Secretary, Prime Minister’s Office, New Delhi
- Ms. Gita Dewan Verma, Planner, 1356 D-I, Vasant Kunj, New Delhi – 110070
- Ms. Ameeta Saini, CVO, DDA, Vikas Sadan, New Delhi
ANNEXURE-A/3 (colly): (B) TYPED COPY OF GNCTD LETTER OF 25.10.2004
GOVT. OF N.C.T. OF DELHI
URBAN DEVELOPMENT DEPARTMENT
10th LEVEL: DELHI SECTT: NEW DELHI
No.F.22/15/2001/UD/PF/10971 Dated: 25.10.04
- The Commissioner, MCD, Town Hall, Delhi
- The Chairperson, NDMC, Palika Kendra, New Delhi
- The Chief Executive Officer, Delhi Cantonment Board, Delhi.
- The Vice-Chairman. D.D.A., Vikas Sadan, New Delhi
SUB: Providing space for Hawkers
I am directed to enclose herewith a copy of letter dated 2/10/04 of Ms. Geeta Dewan, Planner/ r/o 1356-D, Vasant Kunj, New Delhi in which the Police Deptt. has been urged to consider the request of DDA w.r. to non-implementation of Mandatory DMP provisions for informal sector. In this regard the ref. Of CVC dated 10/9/04 endorsed by the representation has already been forwarded to you for comments/ATR. However the requisite information has not been furnished so far. You are therefore requested to furnish the ATR/comments to the representationist under intimation to this Deptt.
Under Secretary (UD)
Copy to: Ms Geeta Dewan, Planner/ r/o 1356-D, Vasant Kunj, New Delhi – w.r. to her letter dated 2/10/04
Under Secretary (UD)
ANNEXURE-A/4 (colly): (A) LETTER OF 16.10.2004 TO MCD COMMISSIONER
Sub: Manushi-MCD proposal / policy for “regularizing” hawkers in Delhi Ref: News reports in Express NL of 12.10.04 and ToI of 01.09.04
As per news item titled ‘Panel to look into regularisation of street vendors’ (Express Newsline, 12.10.04), MCD is working with NGO Manushi – after Supreme Court allowed two pilot projects and in light of national policy – on “regularising all street vendors”. MCD will arrange insurance cover through insurance companies and Manushi will form a welfare board to operate the insurance funds, make plans for stalls and kiosks, prevent encroachment, etc. Vendors will pay 390/- per stall per month. An earlier report (‘MCD introduces contract system for weekly marts’, ToI, 01.09.04) mentions MCD plans for privatizing management of / recoveries from hawkers in weekly markets. In continuation of numerous letters, permit me to point out that such “regularization”, etc, is unlawful:
- Statutory Delhi Master Plan (DMP) provisions for informal sector (including weekly markets) neither contemplate nor leave justification for “regularizing” it except in space planned for it (and otherwise being diverted for profitable misuse). And Supreme Court has made its views on MCD licensing non-conforming uses clear in the industries’ matter (Manushi/MCD petition excerpts published in MANUSHI magazine, incidentally, say “closure of industries in Delhi has also forced a number of unemployed people to take to street hawking” in support of this proposal).
- Delhi Development Act, 1957 (by which two councillors and Commissioner of MCD are in the Authority (s.3(3))), stipulates that none can undertake development except according to plan and by permission from the Authority (s.12), that “Any person who whether at his own instance or at the instance of any other person or any body (including a department of Government) undertakes or carries out development of any land in contravention of the master plan or zonal development plan or without the permission, approval or sanction referred to in section 12 … shall be punishable” (s.29(1)) and that “The Code of Criminal Procedure, 1973 (2 of 1974), shall apply to an offence under sub-section (1) of Section 29 as if it were a cognisable offence…” (s.34-A).
- Manushi-MCD / weekly market proposals involve what would fall in purview of “improvement scheme”. Delhi Municipal Corporation Act, 1957 stipulates that no improvement schemes framed under it “shall be valid unless such scheme is in conformity with the provisions of the master plan or the zonal development plan” (s.429) and no improvement scheme approved by MCD “shall be valid unless …sanctioned by the Central Government” (s.427(2)).
- Besides requiring approvals / sanctions, Manushi-MCD proposals – involving DMP modification – attract provisions of s.11A of DD Act, inclusive of Public Notice, and (since there are other NGOs working with hawkers and hawkers’ associations working without NGOs and designers / managers other than ones with Manushi) presumably also provisions for tendering formalities.
- An account of how Supreme Court was led to “allow” two such projects by one NGO is provided by MANUSHI magazine and is hardly consistent with the type of governance promised in NCMP and the “policy” approved by NDA cabinet is also inconsistent with NCMP promise of a national commission, besides which NGOs that initiated in 2001 seem to have realized they were mistaken about there being no pro-hawker law and have called a meeting in December about this.
- Your attention has been repeatedly drawn (cf letter of 23.06.04, enclosed) to DMP provisions for informal sector and to efforts since 2001 by hawkers and others to secure their enforcement, now assured on affidavit in High Court in a matter in which DDA and MoUD are party and, therefore, could not have given Manushi-MCD proposal the approval / sanction without which it is not valid under MCD Act and cognisable offence under DDA Act. In view of the above, I seek clarification of the legal basis of Manushi-MCD initiatives.
Gita Dewan Verma / Planner
- DDA VC and Secretary MoUD (re WP 6980/2002, especially Annexure-P/F in supplementary affidavit, with request to expedite reply as per order of 11.08.04, not filed till listing on 13.10.04).
- CVC and PMO wrt letter of 02.10.04, for information / intervention.
- As per letter of 23.06.04, with request again for comment / clarification / intervention.
ANNEXURE-A/3 (colly): (B) LETTER OF 09.12.2004 TO SECRETARY MoUD
Sub: MCD decision to auction weekly markets (news report, reproduced below): Demand for action against MCD for deliberate violation of s.21 of Delhi Development Act
Ref: WP 6980/2002, my letters of 07.09.04 (encl.1) and 16.10.04 (encl.2) and GNCTD letter of 25.10.04 ...
Section-21 of Delhi Development Act, 1957, governs “Disposal of land by the Authority or the local Authority concerned”. s.21(3) clarifies disposal includes “creation of any easement right or privilege” and s.21(1) clarifies disposal can only be for development according to Plan. In view of explicit Master Plan provisions for weekly markets, disposal of other sites for them is in clear violation of s.21.
I had sought in letter of 07.09.04 directions against MCD / GNCTD illegal ideas and for enforcing Plan solutions for hawking (assured by DDA in WP 6980/2002 in January 2003) and. In letter of 16.10.04 to MCD Commissioner I had set out how MCD ideas are cognisable offence under DD Act and not valid under MCD Act. This was copied to you with request to reply in WP 6980/2002 and specific reference to Annexure-P/F therein about dubious origin of MCD proposals. As per GNCTD letter of 25.10.04 CVC’s (confidential) letter about Master Plan provisions for hawkers was forwarded to, among others, MCD Commissioner, who was thus also aware of the CVC intervention. (MCD is also well aware of the long-standing demand of hawkers and others, including RWAs, for DMP solutions, including by its presence in the Board for hearing of s.11A Public Notice of 15.09.2002 for Master Plan modification to allow Sultangarhi scheme in ridge area, contentions of hawkers’ response to which are reiterated with reference to subsequent PIL and CVC intervention in their response to s.11A Public Notice of 18.09.2004 for commercial IT Park on riverbed, all reiterated again in response to s.11A Public Notice of 07.11.2004 for commercial use in Mahipalpur Hauz). These communications leave no scope to consider the MCD approval an inadvertent lapse.
Accordingly, we seek action against MCD for its deliberate attempt of disposal by auction of public land in violation of law and in disregard of CVC reference, PIL and cautionary advice. I also urge you to expedite reply in WP 6980/2002, next listed for hearing on 05.01.2004.
Gita Dewan Verma | MPISG Planner
- 5. ANNEXURE-A/5
LETTER OF 29.12.2004 TO LG / DDA CHAIRMAN
Mr BL Joshi
Lieutenant Governor of Delhi / DDA Chairman
Sub: WP 6980/2002 / Master Plan provisions for informal sector: request for directions
In the above-mentioned PIL (targeted against disposal of planned commercial space without regard to mandatory provisions for local area benefit) DDA’s counter-affidavit of January 2003 admits existence / non-implementation of statutory Master Plan solutions for informal sector and assures implementation in line with detailed proposals submitted to it in May 2001. However, no progress has been possible on this joint effort of citizens groups of entrepreneurs, customers, etc, on account of what can only be called adversarial dilatory tactics on part of DDA and MoUD. By contrast, in what can only be called manipulation of the judicial process, MCD has secured approval from Hon’ble Supreme Court for illegal NGO projects/ideas for what can only be called NGO takeover of informal sector, in a shocking manner proudly published by the NGO and included in the pleadings in our PIL as an annexure in additional affidavit of 2004, on which Hon’ble Court ordered in August 2004 DDA and MoUD to file counter-affidavits, which they have not filed. The matter of non-implementation of mandatory provisions for informal sector is also pending hearing / disposal by Parliamentary Standing Committee pursuant to notice of 22.06.2003 inviting views on DDA after the DDA scam and in s.11A Public Notices (since 2002, last for IT Park). The enclosed CVC reference of 10.09.2004 on our representations about informal sector provisions also awaits action by authorities.
In the context of the foregoing, we are dismayed by yesterday’s news reports about “proposal” for incorporating informal sector provisions in Master Plan 2021, mooted in Consultative Committee meeting by none other than our Hon’ble MP, Mr Sajjan Kumar. This is distressing for us not only because our former Hon’ble MP, Mr Sahib Singh Verma, was misled into similar misunderstanding (cleared only after a distasteful incident of his men beating us up), but also because it was after this Consultative Committee meeting that Hon’ble Minister announced finalization in a month of the draft Master Plan 2021, which, as per a news report today, is to be handed over to you in the Authority meeting on 10.01.2005, presumably for starting the process for mandatory 90-day Public Notice.
You would appreciate that this situation poses a sizeable question mark on both the drafting of Master Plan 2021 and seriousness about the Public Notice that will be issued for it. It does sadly appear that the dubious tactic of denial of existence of statutory solutions that NGOs with vested interests in sustaining problems are given to deploying is creeping into statutory processes to cover up implementation failures. This is completely contrary to the mandate of the people as acknowledged by the UPA government in the NCMP.
In view now of imminence of Public Notice for Delhi Master Plan 2021, we seek your intervention by way of directions to authorities for expediting replies in (and thereby disposal of) our PIL as well as for a-priori disposal of IT Park Public Notice.
(On behalf of all petitioners in WP 6980/2002 and all who responded to IT Park Public Notice on MPISG platform)
Gita Dewan Verma, MPISG Planner
cc: For information wrt CVC reference dt 10.09.04 no. 001/W&H (DDA) 121/5957
- Mr Sujit Banerjee, IAS, Secretary GoI CVC
- Ms V Vidyavathi, Dy Secretary to PM, PMO
- 6. Supporting documents
01-02: MPD Informal Sector provisions (pp.17-18)
03-03: ZDP provisions for Government Housing Areas (p.11)
04-05: MPD provisions for hierarchy in urban development (pp.43-44)
06-06: MPD provisions for Local Streets (p.25)
07-07: MPD explication of relation between levels of plans (p.49)
08-09: MPD Development Code, Clause-7 (pp.50, 53)
10-11: MPD Schedule to Development Code (part, pp.93-94)
12-13: MCD v/s Gurnam Kaur, para-14
14-15: National Policy, 2004 (pp 4-5)
16-20: MPLADS Guidelines
21-27: Excerpt: SEWA-MoUD National Workshop (29-30/05/2001)
28-34: Articles published in MANUSHI - Issue 125 (July-Aug 2001)
35-35: Memorandum from Hawkers about PM Policy (Aug/Sep 2001)
36-37: Letter from former PM letter to PM (04/09/2001)
38-38: Letter from DDA in reply to PMO reference (19/10/2001)
39-40: Letters about presentation at CVC (28/11/2001; 19/12/2001)
41-45: Article published in MANUSHI - Issue 126 (Sep-Oct 2001)
46-56: Article published in MANUSHI - Issue 127 (Nov-Dec 2001)
57-59: Article published in MANUSHI - Issue 128 (Jan-Feb 2002)
60-60: Order: GoI (MoUD) constituting Drafting Committee (19/03/2002)
61-70: Article published in MANUSHI - Issue 130 (May-Jun 2002)
71-71: Letter from DDA about progress on identifying sites (10/06/2002)
72-79: Article published in MANUSHI - Issue 135 (Mar-Apr 2003)
80-80: Agenda: SEWA/NASVI arranged meet at GPF (16/06/2004)
81-88: Note: NCMP imperatives and opportunities (22/06/2004)
89-89: Letter from NASVI ‘acknowledging’ pro-hawker law (06/09/2004)
90-90: Reference from CVC (10/09/2004)
91-92: Resolution: National Commission on Informal Sector (20/09/2004)
93-94: PIB release: Meeting of National Commission (11/12/2004)
95-95: Letter to Police Commissioner (02/10/2004)
96-96: GNCTD forwarding (25/10/2004)
97-97: Letter to MCD Commissioner about model-market (16/10/2004)
98-98: GNCTD forwarding of suggestion for action plan
99-99: Letter to Secretary MoUD to stop MCD proposals (09/12/2004)
100-0: Letter to LG about reports of ‘proposed’ provisions (29/12/2004)
101-1: Agenda: NASVI meeting on Law (26-27/02/2005)
102-2: Letter to DDA VC wrt DMP2021 Public Notice (09/04/2005)
103-3: Request for public debate wrt Order in WP 6980/2002 (20/04/2005)