Holding

The Court cannot order reduction of footpath width, transfers after 6 Feb 2007 are illegal, the Delhi Act must be given effect, weekly markets and women‑vendor preference are policy matters for the MCD, and a photo‑census of hawkers is ordered.

Summary

The Supreme Court dealt with numerous applications concerning the implementation of the National Policy on Urban Street Vendors (NPSV) 2004 and the Delhi Laws Special Provisions Act, 2007 in Delhi. Petitioners sought directions to reduce the pedestrian footpath width from 5 ft to accommodate more hawkers, to allow transfer of vending licences after 6 Feb 2007, to compel the Municipal Corporation of Delhi (MCD) to establish weekly markets and give preference to women vendors, and to mandate a photo‑census of all hawkers. The Court held that reduction of footpath width is a matter for the Zonal Vending Committees, not for judicial direction; any transfer of vending sites after the cut‑off date is illegal and subject to eviction; the provisions of the Delhi Act have primacy and must be implemented; decisions on weekly markets and women‑vendor preference are policy matters for the MCD; and a compulsory photo‑census of hawkers is reasonable and ordered. Consequently, the Court disposed of all pending applications, gave specific directions to the MCD, and declined to intervene in the policy matters.

Issues considered

Whether the Court can direct reduction of the pedestrian footpath width from 5 ft to accommodate hawkers
Whether transfer or sale of vending licences after 6 Feb 2007 is permissible
Whether the Delhi Laws Special Provisions Act, 2007 overrides the Court's earlier orders
Whether the Court can direct the establishment of weekly markets or give preference to women vendors
Whether a compulsory photo‑census of hawkers should be mandated

Subjects

hawkersstreet vendorsfootpath widthDelhi Laws Special Provisions ActNational Policy on Urban Street Vendorstransfer of vending licencesphoto censusweekly marketswomen vendorsmunicipal lawpublic policy

Judgment

[2009] 5 S.C.R. 784

A PATRI VYAPAR MANDAL DELHI (REGD)
v.
M.C.D. TOWN HALL & ORS.
(Writ Petition (C) No.1699 of 1987)
APRIL 9, 2009
B
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]

HAWKER MATTERS:

C NATIONAL POLICY ON URBAN STREET VENDORS
(NPSV), 2004:

Schemes framed by MCD and NDMC for running
business by squatters/hawkers in Delhi - Ward Vending
Committees and Zonal Vending Committees and Appellate
D Committee constituted under NPSV - Interim applications for
directions - Held: As regards reduction of width of footpath
from 5 ft., no direction could be passed by the Court - Zonal
Vending Committees would undertake the exercise and would
submit their report to the Court within three months - In view
E of Court's order dated 6.2.2007, banning transfer of tehbajaril
vending sites, no transfer made after 6.2.2007 by way of
change of hands, sale etc. would be allowed and any such
transfer, if made, would be illegal and subject to eviction in
accordance with law - So far as applicability of Delhi Laws
F Special Provisions Act, 2007 is concerned, provisions thereof
have to be implemented and none of the orders passed by
the Court would be deemed to have been passed in derogation
of or contrary to provisions of Delhi Act - In order to check
illegal transfers MCD would take immediate steps to carry out
G photo census of all existing squatters/hawkers allotted with
tehbazarilvending sites - Photo census shall also be
compulsory for all future allotments - With regard to
establishment of weekly markets and giving preference to
women vendors, it is reiterated that it is for MCD to consider
H 784
PATRI VYAPAR MANDAL DELHI (REGO) v. M.C.D. TOWN 785
' HALL & ORS.

.. the request and to take appropriate decisions in that regard A
as the same lies in the domain of policy decision - Delhi Laws
Special Provisions Act, 2007.

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
1699 of 2007.
B
Under Article 32 of the Constitution of India.

Indira Jaising, Ranjit Kumar, Rakesh K. Khanna, Kavita
Wadia, Dr. Rashmi Khanna, Surya Kant, Pranav Vyas, Shailya
Sinha, Amrit Singh, Asha G. Nair, M.M. Kashyap, Lalit Khanna, c
Madhu Moolchndani, Chander Shekhar Ashri, Subramonium
Prasad, Mohan Pandey, S.C. Patel, Varinder Kumar Sharma,
Prasanthi Prasad, Gouri Karuna Das, Anu Gupta, Bhakati
Pasrija, Rani Jethmalani, K.K. Mohan, S.K. Verma Shakeel
Ahmed, Kamini Jaisawal, Prasant Bhushan, Somesh Rattan, D
V.K. Verma, Shanker K. Jha, T.V. George, Manak, Indra
Sawhney, Kiran Bhardwaj, Suishma Suri, B.K. Prasad, S.
Wasirfi A. Qadri, M.P.S. Tamar, Varuna Bhandari, Mu~es~
Verma, Anil Katiyar, Ravi Shankar Prasad, Sanjiv Sen, Praveen
Swarup, Geeta Luthra, D.N. Ggoburdhan and Ranjan Narain for
E
the Petitioners.

The following Order of the Court was delivered

)
DR. MUKUNDAKAM SHARMA, J. 1. By this common
order we propose to dispose of various applications filed by F
the parties hereto including the one which has been filed by the
Municipal Corporation of Delhi (in short the 'MCD').

2. Delhi being the capital of India has many peculiar
problems. One of the problems in naturally its population which
has increased manifold obviously due to influx of people from G
various regions and States looking for new openings and
avocations. Space availability in Delhi is very limited and within
that limited space available at its disposal the municipalties
namely the MCD and the New Delhi Municipal Corporation (in
short the 'NDMC') have to manage all their activities including H
786 SUPREME COURT REPORTS [2009] 5 S.C.R.

A functioning of the markets at different places.

3. Limited space available for effective functioning of
markes including accommodation available for the spuatters
and hawkers to carry on their small business has been receiving
attention of this Court for quite a long time. In that regard,
8
several orders have been passed by this Court from time to
time. Pursuant to such orders of this Court the MCD as well as
the NDMC have framed Schemes for running of the business
by the squatters/hawkers. In response to the Schemes, mearly
85,000 people applied for allotment of spaces within the MCD
C area and about 10,000 people applied for such allotment within
the NDMC area seeking settlement of the tehbazari rights under
the Schemes as formulated by the MCD and the NDMC. Due
to want of space only about three thousand of such applicants
out of the aforesaid applications received could be allotted
D spaces by the concerned authorities.

4. So acute was the dissatisfaction with the process
followed by municipal authorities that several complaints were
filed in the Court raising numerous objections against the
E manner in which the MCD tried tc implement the Schemes.

Under the Schemes formulated by the MCD and the
NDMC hawking and non-hawking areas have been
demarcated and the hawkers/spuatters were to be located only
in demarcated hawking zones in accordance with the priorities
F mentioned in the Schemes. '

6. In the last few years a clearance operation was being
carried out for the purposes of widening roads and
decongesting crowded areas which affected a large proportion
G of genuine vendors who were either removed or dislocated for
one reason or the other. In some cases possession was not
given and in some other cases those persons, who were
entitled to settlement under the Schemes have a grievance that
their matters remained pending and no orders have been
H passed granting them relief. Consequent thereupon, a large
PATRI VYAPAR MANDAL DELHI (REGO) v. M.C.D. TOWN 787
HALL & ORS. [DR. MUKUNDAKAM SHARMA, J.)
number of applications were filed by the concerned authorities A
and aggrieved parties in which general directions were issued
by this Court from time to time.

7. In the meantime.a Scheme called the "National Policy
on Urban Street Vendors" (for short the 'NPSV/Scheme') was
8
formulated by the Government of India in the year 2004 which
the MCD has agreed to implement in principle. In accordance
with the said Scheme, ward Vending Committees have been
constituted in all the 134 Wards of the MCD. These committees
were charged with the duties of identifying the sites, declaring C
hawking and non-hawking zones in consultation with various
stakeholders like Vendors/Trader's Associations, Resident
Welfare Associations, Traffic Police etc. in accordance with the
relevant Rules. In addition to this, Zonal Vending Committees
· have also been constitute_d in all the 12 Zones.

8. According to the NPSV the total vending sites would not
exceed 2.5% of the total population of that particular Ward/Zone
based on the Census 2001 which is consistent with the policy
framed for the purpose and about 3 lakh hawkers/squatters
could be accommodated including existing tehbazari/vending E
sites. It was proposed in the Scheme that the rights of those
hawkers/squatters already granted valid licenses under the
Schemes finalized by the MCD would not be affected and that
whatever action could be taken in the near future would be
based in terms of the Scheme. It was decided that in executing F
the Scheme preference would be given to those squatters/
hawkers eligible for allotment under the existing scheme based
on their seniority and priority of claim.

9. When the matter came up before this Court on
06.02.2007, all aspects of the NPSV were fully discussed. G
Certain suggestions were made in the Court by the various
parties which the Court found acceptable and in that regard
directions were issued to the MCD to consider whetter those
suggestions could be incorporated in the Scheme. The MCD
found the suggestions acceptable and has submitted a H
788 SUPREME COURT REPORTS [2009] 5 S.C.R.

A Scheme incorporating those suggestions. Now the Scheme
envisages identification of squatting/vending areas by the Ward
Vending Committees which was to be approved by the Zonal
Vending Committees which is also empowered to make
necessary changes and make allotments accordingly.
B
10. In the said order dated 06.02.2007 reference was
made to the fact that the tehbazari/vending sites would remain
the property of the MCD. However. mutation in case of death
or permanent insanity of the allottee would be allowed. It was
provided that transfer/mutation in the event of change of hands
C or exchange would be permissible subject to the charges as
approved by the MCD from time to time. It was also provided
that tehbazari/vending sites would measure 6 ft. x 4 ft. and open
to sky and that no permanent structure would be allowed to be
raised. It was also held that if it is found that any change or
D alteration in structure has been made by the allottee, his licence
would be cancelled. It was ordered that all the existing allottees
as per the old Schemes would continue and only thereafter, the
cases of others would be considered in accordance with the
preference as provided in the said sub-paragraph but that
E would not preclude the shifting of an allottee from one site to
another consistent with the norms of the NPSV which provided
that the eviction should be avoided wherever feasible unless
there is clear and urgent public need of the land in question.

F 11. Broad guidelines were issued by this Court in the said
order as to what would be the furthe conditions to be
incorporated in the Scheme which were so incorporated.
However, the said Scheme proposed by the MCD vvas not
found to be satisfactory by some of the parties due to various
G reasons due to which objections were raised in respect of
some of the clauses in the said scheme. This Court considered
the said objections and after detailed discussion and subject
to certain modifications as outlined in the order passed by the
Court, the Scheme submitted by the MCD in regard to the
techazari/vending sites was approved.
H
PATRI VYAPAR MANDAL DELHI (REGO) v. M.C.D. TOWN 789
"""""
HALL & ORS. [DR. MUKUNDAKAM SHARMA, J.]

j
12. Ms. Indira Jaising, learned senior counsel appearing A
f' .on behalf of Self Employed Women Association (SEWA) put
--1 forward a strong claim for establishment of weekly markes in
various areas. This Court heard the said suggestions very
carefully and after full deliberation held that the Court cannot
~ issue direction direction to declare weekly market in a particlar B
area for such matter is be exclusively considered by the MCD.
. \

So far as the suggestion giving preference to women vendors
in the allotment of tehbazari/vending sites is concerned, it was
held that the same is again a matter of policy and, therefore, it
... was observed that in planning makests in the city, the MCD c
may consider some space would be made available to women
vendors and whether they may be allotted tehbazari/vending
.... sites adjacent to each other in a Block.
1

,., 13. A further submission was made before the Court that
the Schemes which have been approved by the Court should D
be subject to such Act or Rules that may be formulated in
consonance with the NPSV. The Cour in that regard made it
clear that it had only approved the Schemes as framed by the
MCD and the NDMC and that if the Legistature intervenes and
frames another Scheme or Regulation governing such Scheme E
that would certainly supersede the Schemes formulated by the
MCD for it is well settled that any administrative action in always
subject to such law that may be framed by the competent
Legislature. It was observed by the Court while passing the said
' order that since the NPSV have been formulated, the
concerned authorities would have due regard to it in regulating
F

tehbazari/vending sites ect. In the orders subsequent thereto
this Court desired that the MCD and the NDMC would submit
a separate status report along with charts in regard to the
implementation of the Schemes not only in general but also with G
reference to the pending applications.

14. Pursuant to the aforesaid order passed, the MCD filed
a detailed affidavit on 19.04.2008 giving the said status report
regarding the implementation and progress of the new Scheme.
H
790 SUPREME COURT REPORTS [2009] 5 S.C.R.

A The MCD also filed an application dated 09.05.2008 seeking
appropriate directions from this Court in regard to certain
difficulties being faced by them in implementing the Scheme.
In the said application four principal difficulties have been
pointed out. The first issue whic:h is raised is that the
B Government of India has issued an Ordinance in 2007 which ~
was later converted into an Act known as Delhi Laws Special
Provisions Act, 2007 (for short the 'Delhi Act') which restrains
removal action unauthorized/vendors up to 31.12.2008. It was
stated that the applicabiliby of the Delhi Act has been extended
C for another one year and an appropriate legislation in that
regard has been passed by the Parliament.
15. In view of the aforesaid position it is pointed out that a
problem is being created for settlement of eligible squatters as
some of the sites have been occupied by unauthorized vendors
D who are entitled to protection under the provisions of the Delhi
Act. It is next pointed out that for settlement of squatters/street
vendors, there is hardly any footpath which has a width of 9 ft.
providing 5 ft. for the pedestrians and 4 ft. for the hawkers along
the reads and as such, a difficulty has arisen to adjust the
E eligible applicants on the footpath and also for identification of
new squatting and vending areas for them. It was, therefore,
suggested by the MCD in the said c:1pplication that it may be
permitted to idenfy the sites for squatting/vending areas no the
footpath having less than 9 ft. width and for that purpose the
F open space on the footpath may be reduced from 5 ft. to 3 ft.
It was pointed out that if such an order is not passed the number
of new sites identified/to be identified would not exceed
20,000. The third aspect on which emphasis was placed by the
MCD was that this Court in its earlier orders has barred transfer
G of sites. It was pointed out that most of the existing tehbazari
_,ites have been sold by their original allotteed to others who
are in possession of the sites as on date. It was also pointed
out that in most cases the existing occupants of the allotted sites
did not apply pursuant to the avertisement which was issued
H
PATRI VYAPAR MANDAL DELHI (REGO) v. M.C.D. TOWN 791
HALL & ORS. [DR. MUKUNDAKAM SHARMA, J.]
I
I
-1 by the MCD and also in the format which was approved by this A
Court. Lastly, it was pointed out that in many cases the tehbazari
~ holders have made additions/aterations and even encriached
the adjoining area thereby enlarging the size of the tehbazari
which is now fixed at 6 ft. x 4 ft. and even in some cases,
making it double storey instead of single storey/open to sky or B
closed. Therefore, it was proposed in the said application that
the MCD may be allowed to bring the old tehbazari sites into
6 ft. x 4 ft. with an aesthetic design and to take action against
encroachers/violators in order to bring these tehbazaris to a
uniform size and manner. c
16. Applications were also filed by the other parties. Mr.
Prashant Bhushan, learned counsel appearing for National
Association of Street Vendors of India (NASVI) while
supporting his application which is registered as I.A. No. 404
in W.P. (C) No. 1699 of 1987 submitted that mobile hawkers D
should be allowed to replace unauthorised hawkers and that
the width of the footpath should be left to be determined by the
Ward Vending Committees. He further submitted that the
meetings of teh Ward Vending Committers should be more
transparent and advance notice of such meetings should be E
given to all concerned particularly to its members. He also
submitted that the applications for granting tehbazari sites are
not being considered but instead the authorities have started
the eviction process.
F
17. Ms. Geeta Luthra, learned counsel appearing for
Manushi Sangathan made submission that there should be a
photo census of all the squatters and hawkers so as to avoid
all illegal transfers of such sites in future. She also referred to
the NPSV and particularly to paragraph 3.1. of the said Policy
G
~ which gives vendors a legal status by amending, enacting,
' repealing and implementing appropriate laws and providing
legitimate hawking zones in urban development zoning plans.

18. Mr. R.K. Khanna, the learned counsel appearing for the
NDMC submitted that so far as NDMC is concerned it does H
792 SUPREME COURT REPORTS [2009] 5 S.C.R.

A not want the area and width of the footpath to be changed or
reduced. He also submitted that they have granted tehbazari
licence in accordance with the existing rules/Schemes.

19. So far I.A. No.1 in I.A. No. 407 in W.P. (C) No. 1699
of 1987 is concerned, orders were already passed in the said
8
application on 05.03.2009.

20. In view of the aforesaid position we are required mainly
to deal with the contentions raised by Mr. Ravishankar Prasad,
learned senior counsel appearing for the MCD in respect to the
C application filed by the MCD wheffeby they have sought for
certain clarifications and also with the contentions raised by
Ms. Indira Jaising, Mr. Prashant Bhushan and Ms. Geeta Luthra.

21. So far the contentions of Ms. Indira Jaising are
0 concerned, the said contentions with regard to the
establishment of weekly marketi; and giving preference to
women vendors in the matter of allotment of tehbazari/vending
sites have already been dealt with and orders in that regard
have been passed by this Court in the order dated 17.05.2007.
E It is established from the records and the statements made
before us that the Ward Vending Committes numbering 134
as also the Zonal Vending Committes numbering 12 have
already been constituted. The Appellate Committee to be
presided over by a retired High Court Judge in terms of the
orders of this Court has also been constituted. It is an admitted
F position that no Act or Rules have been framed so far by the
Legislature in consonance with the NPSV. Therefore, orders
in the manner of administrative action could be issued subject
to law that may be framed by the competent Legislature.

G 22. With regard to the contentions raised by the MCD
regarding reduction of the width of the footpath for pedestrian
from 5 ft. concerned, in our considered opinion, no direction in
that regard could be passed by this Court. There could be
some areas where 5 ft. width of the footpath for the use of
H pedestrian could be necessary depanding on overflowing
. (

. .i
PATRI VYAPAR MANDAL DELHI (REGO) v. M.C.D. TOWN 793
HALL & ORS. [DR. MUKUNDAKAM SHARMA, J.]

·, members using it whereas in some other places width of 5 ft. A
for a footpath and 4 ft. width for hawkers may not or could not
be made available due to various practical reasons. It is also
not possible for us to consider reduction of width of such
footpath for we are unaware of the existing condition of the
•
footpaths of the various areas in Delhi. Therefore, we do not B
intend to pass any such orders without there being some
concrete materials for such modification. We, however, leave
the matter to be considered by the Zonal Vending Committes.
At one stage we considered to leave the matter to be
considered by the Ward Vending Committees which are 134 · c
in number but the volume being too large we think it fit to leave
it to the Zonal Vending Committees to do such exercise as to
whether in any particular area, the area of the actual footpath
being used by pedestrian could by reduced from 5ft. to a lesser
area so as to make the balance area available to D
accommodate more hawkers. While making a study in that
regard the Zonal Vending Committee shall consider all factors
including the interest and the requirement of the pedestrian
using the footpath in a particular area. The said Zonal Vending
Committee after making proper and appropriate study of the
E
prayer for reduction of the width of the footpath for the

- )
pedestrian would submit their report to this Court within three
months from the date of receipt of a copy of this order
whereupon appropriate orders shall be pass ed in that regard.

23. So far the prayer of the MCD with regard to the transfer F
of tehbazari/vending sites to the non-family members as per
the Scheme of the MCD is concerned, this Court passed an
order dated 06.02.2007 barring transfer/vending sites which
was reiterated in the order dated 17.05.2007. The said 6rders
were meant to be prospective in nature and, therefore, if any G
such tehbazari/vending sites were transferred prior to
06.02.2007 the same could be considered as a valid transfer.
But, in any case, no transfer made after 06.02.2007 by way of
change of hands, sale etc. would be allowed and any such
transfer, if made, would be illegal. Persons found to have been H
794 SUPREME COURT REPORTS [2009) 5 S.C.R.

A transferred their tebhazari/vending sites after 06.02.2007 could
be evicted as per the due process of law. We believe that the
aforesaid order which we have passed with a cut of date of
06.02.2007 directing for legalizing any transfer made prior to
06.02.2007 and declaring all subsequent transfers as illegal
B and invalid would likely to cause the process of allotment of new
tehbazar/vending sites smoth and easy.

24. So far the contention with regard to applicability of the
Delhi Act is conserned, the same lapsed on 31.12.2008 and
was subsequently extended till December, 2009 Needless to
C say, the said law will have to be given effect to as it is a Central
law and would definitely have primacy over the administrative
orders. The provisions of the Delhi Act have to be implemented
and, therefore, none of the orders passed by us would be
deemed to have been passed in derogation or contrary to the
D provisions of the Delhi Act.

25. We observe that when the Ward Vending Committess
hold their meeting, advance notice thereof with sufficient time
should always be given to its members and the minutes of the
E said meeting shall be recorded and record thereof shall be
maintained.

26. With regard to the suggestion that is given by Manushi
Sangathan regarding maintaining a photo census of all the
squatters and hawkers allotted with the tehbazari/vending sites,
F we find that the said suggestion is fair and reasonable and
many problems being faced by the MCD regarding illegal
transfer, sale etc. would be taken care of if a photo census of
all the squatters and hawkers given the tehbazari/vending sites
is made compulsory and properly maintained. We direct MCD
G to take immediate steps for carrying out photo census of all the
existing squatters and hawkers allotted with tehbazari/vending
sites. The photo census shall be compulsory for all future
allotment also, if any. MCD shall also maintain proper records
of the photo census.
H
PATRI VYAPAR MANDAL DELHI (REGO) v. M.C.D. TOWN 795
HALL & ORS. [DR. MUKUNDAKAM SHARMA, J.]
27. So far as the establishment of the weekly markets and A
giving preferece to women vendors Clre concerned, this Court
has already taken notice of the said submissions and has
passed affective orders in that regard. We make it clear that it
is for the MCD to consider the aforesaid request and to take
appropriate decisions in that regard for we do not intend to B
pass any such order as the same is, in our considered opinion,
in the domain of policy decision.

28. In terms of the aforesaid order the applications
registered as I.A. No.1 in I.A No.407 in W.P.(C) No. 1699/1987
with I.A. No.1 & C.P.(C) No.170/2007 in I.A. No.394 in I.A. c
No.356 in W.P.(C) No.1699/1987, Contempt Petition (Civil)
No.323/2007 in W.P.(C) No.1699/1987 with I.A. No.366 in
W.P.(C) No.1699/1987, I.A. No. 367 in W.P.(C) No.1699/1987,
Contempt Petition (Civil) No.126/2001, I.A No. 361 in W.P.(C)
,• D
No.1699/1987, I.A. Nos. 372-373 in W.P.(C) No.1699/1987, I.A.
No.389 in W.P.(C) No.1699/1987, I.A. No. 392 in W.P.(C)
No.1699/1987, with W.P. (C) No. 535/2001, W.P.(C) No. 240/
2004, I.A. Nos. 397-398 in W.P.(C) No.1699/1987, I.A. No. 399
in I.A. No. 394 in W.P.(C) No.1699/1987, I.A. Nos. 1-2 in
W.P.(C) No.100/2002, I.A. No... ./2005 in I.A. No. 394 in I.A. No. E
356 in W.P.(C) No.1699/1987, I.A. No ... ./2005 in I.A. No. 394
in I.A. No. 356 in W.P.(C) No. 1699/1987, I.A. No. 400 in
W.P.(C) No.1699/1987, with I.A. No.396 in C.P. No.506/2002
with I.A. No ... .in C.P. No. 506/2002, I.A. No.402 in W.P.(C) No.
1699/1987, with W.P.(C) No.414/2006 with I.A. No.403 in F
W.P.(C) No.1699/1987, with I.A. No.404 in W.P.(C) No. 1699/
1987 with I.A. No.406 in W.P.(C) No.1699/1987, with I.A. Nos.
408-409 in W.P.(C) No.1699/1987, I.A. No.410 in W.P.(C)
No.1699/1987, with Contempt Petition (Civil) No.183 in W.P.(C)
No.1699/1987, with C.P. (C) No ..... (D. No.4361/2009 in W.P.(C) G
No.1699/1987, are disposed of.
~ RP. Matter disposed of.