Judgement 16.1.2013

                      IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 144/2013

DELHI SHRAMIK SANGATHAN .                                       …. Petitioner

Through: Ms. Indira Unninayar, Ms. Kirat  Randhawa, Mr. Narayan, Advs.

versus

DELHI POLICE AND ORS .                                             …. Respondent

Through: Ms. Shobha Gupta, Adv. for MCD

CORAM:

HON’BLE THE CHIEF JUSTICE

HON’BLE MR. JUSTICE V.K. JAIN

O R D E R

16.01.2013

CM 281/2013

Inspite of service, respondents have not filed the reply. The
petitioner seeks the following interim directions:

(a) Pass orders/directions strictly restraining the Delhi Police, MCD,
DMRC and other official from interfering with the said 130 petitioner
hawkers in their pursuit of their hawking/street wending occupation at
Harkesh Nagar;
(b) Pass orders/directions to the MCD to clear up the refuse/garbage
that has been piled up on both sides of the street having at Harkesh
Nagar, and to stop any further piling up of garbage forthwith;

(c) Pass orders/directions to the MCD to cleanse and fumigate the area
where the garbage was piled until it is rid of the now permanent stench,
stains and remnants of rot at Harkesh Nagar, as well as take sufficient
and necessary preventive measures to check malaria and dengue.

Having regard to the grievance in so far as prayer (a) is
concerned, we direct the Delhi Police to abstain from interfering with
the 130 hawkers whose names are furnished in the petition in their
pursuit of their hawking/street vending occupation if they are protected
under the National Capital Territory of Delhi Laws (Special Provisions)
Act, 2009. In so far as prayer (b) is concerned, MCD should ensure that
no dumping of garbage is there in the place in question and if any
dumping of garbage is found, it shall be immediately removed. In so far
as prayer (c) is concerned, as we have directed MCD to clear the
dumping/garbage as and when they are dumped, the question of fumigation
would be considered along with the main petition. CM stands disposed of
with the above directions.

CWP 144/2013

List on 6th March, 2013 for filing

CHIEF JUSTICE
V.K. JAIN, J
JANUARY 16, 2013

CONTEMPT      PETITION

IN THE HIGH COURT OF DELHI AT NEW DELHI

CONTEMPT PETITION (CIVIL) NO. __________ OF 2014

OF ORDER PASSED ON 16.1.2013, IN W.P. (C) NO. 144 OF 2013 :

DELHI SHRAMIK SANGATHAN VS DELHI POLICE & ORS.

IN THE MATTER OF:

DELHI SHRAMIK SANGATHAN                                  ….PETITIONER

VS

MANISH GUPTA AND ORS.                                                ….RESPONDENTS

PETITION FOR INITIATING CONTEMPT PROCEEDINGS AGAINST RESPONDENTS FOR WILFUL, REPETITIVE DISOBEDIENCE OF THIS COURT’S ORDER DATED 16.1.2013, IN WP(C) 144/2013

UNDER ARTICLE 215 OF THE CONSTITUTION OF INDIA AND SECTIONS 11, 12 & 14 OF THE CONTEMPT OF COURTS ACT 1971

To

The Chief Justice and his

Companion Judges of the Delhi High Court

This Contempt Petition

1.            This contempt petition is being filed as this Court’s restraining Order dtd 16.1.2013 in WP(C) 144/2013 protecting the Petitioner hawkers, is being repeatedly and willfully flouted by the officials of the MCD, local MCD Councillor one Jeevan Lal, various MCD and Police officials, and their common tout one Ram Avtar Rai.

Overview

2.            Street vending or hawking has been deliberately kept in an uncertain legal status for decades by municipal authorities in order to perpetuate a large-scale racket of extortion and exploitation. This was the situation despite Supreme Court rulings since the 1980’s ruling that hawking is a fundamental right under Article 19(1)(g) of the Constitution of India. Over the years, the Government has, under enormous pressure, formulated a National Policy for Street Vendors and Hawkers in 2004, updated in 2009, followed by Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill 2014, that awaits Presidential assent.

3.            The Petitioner hawkers have been trying against all odds, to lead their lives with dignity and honesty.  They hawk from Harkesh Nagar Sabzi Mandi, Okhla Industrial Area Phase II, New Delhi – a long-standing hawking area and ‘natural market’. Clauses 2.5 r/w 4.3 of the National Policy for Street Vendors require that “natural markets” be designated as Vending Zones.

4.            All that the Petitioner hawkers have been seeking is:

1)   that they should not be harassed in the pursuit of their occupation.

2)   that they be allowed to earn their livelihoods in an environment conducive to honest, hard work, where they can hold their heads high without fear and with dignity, free of corruption, threats and extortion. They seek that they should be unshackled from the regime of terror, extortion and “hafta” /ghoos/ghooskhori /”monthly”/bribery forced upon them by the MCD, Delhi Police and their tout/agent.

5.            Petitioner hawkers have made repeated representations with regard to the above before the Delhi Police and the MCD, apart from their PIL (Public Interest Litigation) – WP (C) No. 144/2013 pending before this Court.

Restraining Order by Delhi High Court protecting Petitioner hawkers

6.            This Court in WP(C) 144/2013 protected the 130 Petitioner hawkers through restraining order passed on 16.1.2013, directing:

1)   The Delhi Police to abstain from interfering with the rights of the 130 petitioner hawkers/street vendors in their pursuit of their occupation at Harkesh Nagar sabzi mandi if they are protected under the NCT of Delhi Laws (Special Provisions) Act, 2009.

2)   The MCD to ensure no dumping of garbage at the place in question, and if dumped, to immediately remove it.

(Note: The flouting of this order by any person, even if not a party to the petition, would make them contemnors as held in Seaward vs Patersen)

Ordinance that protects the Petitioner hawkers

7.            In Delhi, the NCTD Special Provisions Act, 2011 Ordinance extended till 2014 protects hawkers from punitive action. Thus, apart from Order dtd 16.1.2013, the MCD and Police are not entitled to remove any hawker/street vendor, even if encroacher, as per this Ordinance.

Supreme Court Order that protects the Petitioner hawkers

8.            Supreme Court order dtd 9.9.2013 in Gainda Ram / Maharashtra Ekta Hawkers Union cases passed its final order and judgment that categorically says:

1)        Once the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2013 becomes law, the livelihood of millions will be saved and they will get protection against constant harassment and victimization which has so far been an order of the day. Till that is done, the 2009 policy, of which the salient provisions are extracted below, should be implemented throughout the country (Pg. 14 of SC judgment, Para 15)

2)        For facilitating implementation of the 2009 Policy, we issue the following directions (Pg. 22 of SC judgment, Para 16) :

                      i.        …

                    ii.        If there remains any conflict between the 2009 Street Vendors Policy and municipal laws, then the 2009 Policy shall prevail insofar as they relate to street vendors/hawkers (Pg 24 of SC judgment – sub para (xii))

                   iii.        Henceforth, the parties shall be free to approach the jurisdictional High Court for redressal of their grievance and the direction, if any, given by this Court in the earlier judgments/orders shall not impede disposal of the cases which may be filed by the aggrieved parties. (Pgs 24,25 of SC judgment – sub para (xiii)

                   iv.        …

                    v.        All the existing street vendors/hawkers operating across the country shall be allowed to operate till the exercise of registration and creation of vending/hawking zones is completed in terms of the 2009 Policy. Once that exercise is completed, they shall be entitled to operate only in accordance with the orders/directions of the concerned Town Vending Committee.  (Pg 25 – sub para (xv))

                   vi.        The provisions of the 2009 Policy and the directions contained hereinabove shall apply to all the municipal areas in the country (Pg 25 – sub para (xvi)).

GNCTD letters dtd 10.2.2014 to Commissioners Municipal Corporations of Delhi including SDMC (South Delhi Municipal Corporation) & Commissioner of Police

9.            The Government of NCT of Delhi’s letter dtd 10.2.2014 to the Commissioners/Chairperson/Chief Executive Officer of various Municipal Corporations of Delhi, the NDMC and Delhi Cantonment Board categorically intructs that no action is to be taken against the street vendors/hawkers operating in violation of the Supreme Court order dtd 9.9.2013.

10.         Similarly, the Government of NCT of Delhi’s letter dtd 10.2.2014 to the Police Commissioner categorically instructs that all concerned officers of Delhi Police be directed that they are NOT to take action against any street vendors/hawkers in violation of the Supreme Court order dtd 9.9.2013.

11.         The respective Commissioners and others ought to have ensured strict compliance of Order dtd 9.9.2013 and these instructions dtd 10.2.2014 in letter and spirit.

Material Facts Re: Latest Contempt

12.         Despite the above, on 26.02.2014, officials and the said Councillor of the MCD, in blatant defiance and violation of the High Court order, and completely disregarding the fact that the matter WP(C) 144/2013 is SUB JUDICE, attempted to remove some of the hawkers of Harkesh Nagar in connivance with the police, and by using ‘police force’. 7 hawkers were finally removed by arresting them on false criminal charges. 6 of these 7 were Petitioner hawkers or their direct relatives, helping them in their work.

13.         This removal / flouting was done on the pretext of constructing a toilet right where the hawker hawk from.

14.         The Petitioner hawkers showed the MCD and Delhi Police officials the copy of court order dtd 16.1.2013 and reminded them that they are protected by the High Court order, and that they could not be removed. That they are also protected by the Ordinance (NCTD Special Provisions Act).  However, the very authorities that are supposed to uphold the law, violated it to pursue their regime of hafta/ghoos/bribes/monthly, and as a backlash to prior complaints exposing their misdeeds.

15.         The Petitioner hawkers were physically attacked with brute force, their wares and rehris taken away from them, and their sabzi thrown around and/or destroyed. MCD persons (through SDMC) unlawfully picked up some rehris. They instructed the police to attack the Harkesh Nagar Sabzi Mandi hawkers and remove them from the designated spot with the help of police force, to construct a toilet. Petiioner hawkers were beaten up and lathi-charged. One of them was even rendered unconscious. Women were also beaten/physically assaulted. Seven hawkers were hauled off to the Okhla police station and arrested on false criminal charges.

16.         The proceedings were video-graphed by the Police. Petitioner hawkers and some others also took pictures. Petitioner hawkers have collected pictures and vidoes and placed them on the record in order to assist this Court.

17.         Petitioner’s counsel informed Respondents’ Counsel as well as parties – the Delhi Police and MCD that their action amounted to contempt. The ACP Kalkaji of Delhi Police and the Office of the DC of SMDC were called to give them notice of their contempt of this Court’s Order dtd 16.1.2013.  Legal notices were also sent legal notices to both the Police as well as the MCD/SDMC but to no avail.

18.         Petitioner hawkers who were named in the FIR and are under arrest, have been listed below. Their/their relative’s Serial No. in the List of 130 Petitioner Hawkers from Harkesh Nagar in WP (C) No. 144/2013 is also provided alongwith:

1)     RUBENDER JHA, S/o Sudhir Jha, R/o G-17, Harkesh Nagar, Okhla Phase-II, New Delhi – 110020 (S. No. 7 of List)

2)     MUKESH SINGH, S/o Ramveer Singh Raghav, R/o G-234, Harkesh Nagar, Okhla Phase-II, New Delhi — 110020 (Brother of Promod, S. No. 15 of List)

3)     DASHARATH, S/o Jagarnath Singh, R/o Y-22, Okhla Phase-II, New Delhi -110020 (S. No. 21 of List)

4)     MUKUL GARG, S/o Munish Kumar, R/o CNC-2Y, Sanjay Colony, Okhla Phase-II, New Delhi – 110020 (Son of Munish Kumar, S. No. 26 of List)

5)     PRAVIN JHA, S/o Sudhir Jha, R/o G-17, Harkesh Nagar, Okhla Phase-II, New Delhi – 110020 (S. No. 104 of List)

6)     RAJESH KUMAR MISHRA, S/o Jaganath Mishra, R/o G-14/A, Harkesh Nagar, Okhla Phase -II, New Delhi – 110020 (S. No. 111 of List)

7)     NANDAN GUPTA, S/o Ram Preet Gupta, R/o G-32, Harkesh Nagar, Okhla Ph 2, New Delhi, 110020 (Not part of List of 130 petitioner hawkers)

Willful, Repeated and Vindictive flouting of High Court order dtd 16.1.2013 by MCD and Police in collusion, through tout Ram Avtar

Retaliation by Delhi Police & MCD due to non-payment of bribes & PIL WP(C) 144/2013

19.         However, despite protection under this Court’s Order dtd 16.1.2013 and various other laws, the local MCD Councillor, officials of the MCD and Delhi Police, and a notorious local tout of theirs, one Ram Avtar Rai, repeatedly and willfully flout this Court’s orders with impunity.

20.         Some of the Petitioners stopped paying bribes to the Police and MCD officials shortly after this Court’s order dtd 16.1.2013. More recently, over the last 2-3 months or so, the 130 Petitioners had stopped paying bribes to the MCD and Delhi Police. This cut off the source of huge incomes to the MCD and Police and resulted in brutal and vengeful retaliation by them. Further, after the filing of this Petition and this Court’s restraining order dtd 16.1.2014.

21.        The recent flouting of Order dtd 16.1.2013 is through the following acts:

1)   The registration of the vengeful, motivated, malicious and false criminal case by the MCD and Delhi Police against Petitioner hawkers in order to terrorize them into subjugation. FIR No. 145/2014 dtd 26.2.2014 in P.S. Okhla Industrial Area Phase I was registered with “no delay” by singling out key members of the Petitioner organization who complained against the MCD and Police.

2)   The engineered arrests of these innocent persons that same evening on 26.2.2014 on false grounds of ‘law and order problems’, i.e. S 186, IPC – obstructing public officials from performing their duty, S 353, IPC – assault or criminal force to deter public official from discharge of his duty, S 332, IPC – voluntarily causing hurt to deter public servant from his duty, S 147, IPC – punishment for rioting, S 148, IPC – rioting and armed with deadly weapon, and S 149, IPC – every member of unlawful assembly being guilty of offence of common object – were also done to deflect attention from the wrong-doings of the MCD and Police officials.

3)   The ‘lathi charge’ and vicious beating up of the hawkers and innocent persons on 26.2.2013 in order to break their spirits. The aim is to make them re-commence payment of hefty                                                                                                                                                             bribes/haftas which they had stopped paying after this Court’s order dtd 16.1.2013.

4)   The deliberate commencement of construction activity in the area where they hawk from, under the aegis of/orders of Mr Jeevan Lal, MCD Councillor. The said construction has been stated to be a toilet/shauchalaya in FIR dtd 26.2.2014 registered by the police. However, such construction is an obvious obstruction of the hawkers’ rights to pursue their occupation/livelihood as it would a) displace some hawkers and b) would be highly unhygienic. It thus flouts Order dtd 16.1.2013. It is ironic that the Petitioners’ prayer for toilets and other civic amenities in accordance with the Natlonal Policy of Urban Street Vendors 2009 (Prayer D, Pg 21 in WP(C) 144/2013) is being DELIBERATELY DISTORTED TO PLACE A TOILET IN THE WRONG PLACE BY DISPLACING THEM. THE MCD, IN THE GARB OF HELPING THE HAWKERS, IS PLACING A SOURCE OF STENCH AND DISEASE (DENGUE, ETC) IN THE MIDST OF THEIR WORKPLACE.

5)   The prolonged delays in removal of garbage by the MCD, leaving the place in a stinking mess, resulting in obstruction to dignified and hygienic pursuit of the Petitioners’ occupation.

6)   The taking of the hawkers’ wares, throwing their things around, the removal and taking of their rehris/carts – which are their means of livelihood. The humiliating and terrorizing meted out to them, in order to break their spirits and thus obstructing their right to occupation on 26.2.2014.

7)   Using the pretext of “law and order” problems to continue to target, hand-pick, single out and arrest the Petitioner hawkers in order to spread the reign of terror of the MCD and Police. The police is now on a man-hunt for those hawkers who have complained against them in the past and have stood up to them on that date. They are hunting for those who have spearheaded WP(C) 144/2013, in order to block it from being actively pursued.  The Police in collusion with the MCD is attempting to eliminate Petitioner hawkers altogether from hawking in Harkesh Nager. The selective targeting wherein 6 out of 7 accused in the FIR are some of the key petitioner hawkers or their relatives, is no mere coincidence. It is selective targeting.

8)   The Police in collusion with the MCD, has deliberately invoked sections of the IPC that include non-bailable offences that will keep them mired in cases for years together and demolish their livelihood.

9)   The Police in collusion with the MCD, have registered the said FIR deliberately in order to flout this Court’s order dtd 16.1.2013 in a devious roundabout way. They have cloaked their flouting in false criminal proceedings, and have thus obstructed the occupation and livelihood of the Petitioner hawkers. THEY HAVE GROSSLY ABUSED THEIR POWERS IN ORDER TO FILE A FALSE CRIMINAL CASE AND HAVE THUS SERIOUSLY OBSTRUCTED THE ADMINISTRATION OF JUSTICE.

10)The police have been combing the area every day since 26.2.2014, saying they will pick up more of the Petitioner hawkers. They are threatening them in their homes at odd hours including at night, and at their workplace. They have spread fear in the neighbourhood, and several hawkers might be forced to leave the area. THE POLICE OFFICIALS IN COLLUSION WITH THE MCD, ARE ATTEMPTING TO ELIMINATE REGULATED HAWKING AND THE PRESENCE OF THE PETITIONER HAWKERS ALTOGETHER FROM HARKESH NAGAR SABZI MANDI, OKHLA INDUSTRIAL AREA PHASE II. THIS WOULD RENDER VOID AND MEANINGLESS, THIS COURT’S RESTRAINING ORDER DTD 16.1.2013.

22.        Past flouting of Order dtd 16.1.2013 was through the following acts:

1)   Repeated attempts to terrorize and threaten the Petitioner hawkers by MCD’s sudden raids, by taking away their goods, by officials of the Police and MCD throwing the Petitioner hawkers’ wares around, and by continuing to extort from them. Some of the accused Petitioner hawkers were among those who filed complaints about this with the Police through complaint dtd 30.4.2013 and 1.5.2013. Legal notices dtd 9.3.2013 were also sent to both the MCD and Delhi Police, but to no avail.

2)   The tout of the MCD and Police Ram Avtar Rai would threaten them and instill fear into them in order to extort from them.

3)   The MCD and Police officials, with the help of their tout:

                                         i.    Extorted Rs. 400/- – 1,500/- per hawker per month from the petitioner hawkers and issued threats to them when they refused to pay, even after Order dtd 16.1.2013, thus interfering with and obstructing their right to occupation,

                                        ii.    Placed a tempowallah who is not a ‘hawker’ and allowed him to store sand, malba, etc. and his tempos in order to push the hawkers/vendors back and slowly take over their places. This is because the tempowallah’s bribe-rate is far more lucrative @ Rs. 10,000/- per month.

                                       iii.    Placed new hawkers who pay higher bribe rates, being Rs. 4,000 to 10,000/- as set-up cost and Rs. 1,000-2,000/- per month. The new hawkers were placed by creating an additional row of hawkers in the middle of the street.

4)   The MCD continued to pile garbage near them and would invariably remove it only just before court hearings.

23.         Thus, the flouting by officials of the MCD and Police has been repeated, willful and deliberate. It has been collusive, and their common tout, one Ram Avtar Rai, has been their collection and terror agent.

24.         Such willful contempt of this Court’s orders requires to be put to an end in order to restore this Court’s authority, and in order TO RESTORE PUBLIC CONFIDENCE THAT IS SEVERELY SHAKEN BY THE LATEST EPISODE.

25.         It may be noted that such contempt has been committed fearlessly, with MCD and Police officials and Ram Avtar virtually thumbing their noses at this Court’s orders. The contempt has been committed despite and while this matter was SUB JUDICE before this Court.

Documents being filed to reveal THE contempt by these persons

26.         The documents being filed to demonstrate / reveal contempt by these persons are as follows:

1)            Copy of Restraining Order dtd 16.1.2013 in WP(C) 144/2013 –Annexure P1

2)            Copy of Site map of Harkesh Nagar Sabzi Mandi, Okhla Industrial Area Phase II drawn in 2012 –Annexure P2

3)            Copy of Pictures taken of Harkesh Nagar Sabzi Mandi, Okhla Industrial Area Phase II taken in 2012 –Annexure P3 Colly

4)            Copy of List of hawking areas from MCD’s website taken in 2010, 2012 that shows that Okhla Industrial Area Phase II is a hawking area –Annexure P4

5)            List of 130 Hawkers protected by the restraining order dtd 16.01.2014 in WP (C) 144/2013 –Annexure P5

6)            Copy of Status Report dtd 6.5.2013 filed in the main matter WP(C) 144/2013, with Annexures as below –Annexure P6 Colly

                                         i.    Copy of picture of Ram Avtar Rai, agent of Police and MCD

                                        ii.    Copies of Complaints dtd 30.4.2013 and 1.5.2013 by some of the petitioner hawkers including some of those accused, to SHO, PS Okhla Phase I, and DCP South-East Dist, Sarita Vihar respectively, with English translations.

                                       iii.    Copy of photographs of garbage taken some time around the third week of February 2013

                                       iv.    Photographs of the unlawful garbage-dump dtd 15.3.2013, 2.4.2013 and 26.4.2013

                                        v.    Copy of undated note signed by one Raj Kumar Yadav, along with English translation

                                       vi.    Copy of picture of Sanjay and other MCD officials in their MCD raid truck on 3.5.2013

                                     vii.    Copy of photograph dtd 3.5.2013 of Jeevan Lal at Harkesh Nagar sabzi mandi

                                    viii.    Copy of photograph dtd 2.4.2013 of the tempo, trolley, sand, etc. at Harkesh Nagar sabzi mandi

7)            Copy of Legal Notice from Petitioner to Police dtd 09.05.2013 –Annexure P7

8)            Copy of Legal Notice from Petitioner to MCD dtd 09.05.2013 –Annexure P8

9)            Copy of photographs dtd 26.2.2014 showing: –Annexure P9 Colly

a.    Officials of the MCD (SDMC) unlawfully picking up rehris, obstructing the Petitioners’ rights to hawk,

b.    MCD officials alluding to the construction of a structure without showing any order or documentation to such effect and

c.    Photographs showing the Police officials unlawfully beating up persons in lathi charge and unlawfully supervising removal of rehris by MCD (SDMC)

10)         CD with photographs showing: –Annexure P10 Colly

a.    Photographs of Police and MCD officials illegally removing and lathi charging petitioner hawkers dtd 26.2.2014, pictures of proposed contemnors & photographs dtd.  4.3.2014 showing construction board under order of MCD Councillor Jeevan Lal.

b.    Photographs of garbage dumping at Harkesh Nagar filed with Status Report dtd May 2013

c.    Photographs of Ram Avtar Rai, MCD officials and MCD Councilor for Harkesh Nagar, one Jeevan Lal, filed with Status Report dtd May 2013

d.    Photographs of few hawkers on 18 august, 2012, from   5.30 – 6.00 p.m approx.

11)         CD with videos dtd 26.02.2014 showing: – Annexure P11 Colly

a.    Officials of the MCD (SDMC) unlawfully picking up rehris, obstructing the Petitioners’ rights to hawk,

b.    MCD officials alluding to the construction of a structure without showing Petitioner hawkers any order or documentation to such effect and

c.    Showing the Police officials unlawfully supervising removal of rehris by MCD (SDMC)

12)         Copy of legal notice from Petitioners dtd 26.2.2014 to Police –Annexure P12

13)         Copy of legal notice from Petitioners dtd 3.3.2014 to MCD –Annexure P13

14)         Copy of forwarded Legal notice from Petitioners to Jt Commissioner of Police, South East & Spcl CP Vigilance, notice dtd dtd 4.3.2014 –Annexure P14

15)         Copy of motivated FIR 145/2014 dtd 26.2.2014 on false and trumped up charges against some Petitioner hawkers, with English Translation of material portions –Annexure P15

16)         Copy of Magistrate’s order dtd 27.2.2014 in bail application showing contradictory averments by the Police and false allegations by the Police of law and order problems –Annexure P16

17)         Copy of Bail application of 7 Accused dtd 28.2.2014 before the Sessions Court – Annexure P17

18)         Copy of Sessions Court’s order dtd 1.3.2014 in bail application showing how the right to liberty of some key Petitioner hawkers has been compromised on the basis of mere concocted allegations by the Police of law and order problems – Annexure P18

19)         Copy of Status Report dtd 4.3.2014 by Petitioner of violation of Court orders by Police and MCD (WITHOUT ANNEXURES, AS THE RELEVANT DOCUMENTS ARE ALREADY ANNEXED) – Annexure P19

20)         Copy of pictures dtd 4.3.2014 showing that it was under Councillor Jeevan Lal’s orders that the said construction had been undertaken –Annexure P20 Colly

21)         Copy of MLC (Medico Legal Case) of two women: – Annexure P21 Colly

                                         i.    Of one Sheela, hawker, dtd 27.2.2014

                                        ii.    Of one Munni Devi W/O Shyam Sundar Saha (S.No. 3 of List of Petitioner Hawkers) dtd 27.2.2014

22)         Copy of National Policy for Street Vendors and Hawkers 2009 –Annexure P22

23)         Copy of NCTD Special Provisions Act 2009, 2011 and relevant PIB Press release extending it to Dec 2014 –Annexure P23 Colly

24)         Copy of Supreme Court Judgment/Order dtd 09.09.2013 in Maharashtra Ekta Hawkers Union and another vs Municipal Corporation, Greater Mumbai & Ors, r/w Order dtd 09.09.2013 in Gainda Ram & Ors vs MCD & Ors in WP(C) 1699/1987. –Annexure P24 Colly

25)         Copy of Government of NCT of Delhi’s letter dtd 10.2.2014 to the Commissioners/Chairperson/Chief Executive Officer of various Municipal Corporations of Delhi, the NDMC and Delhi Cantonment Board categorically that states that no action is to be taken against the street vendors/hawkers operating in violation of the Supreme Court order dtd 9.9.2013, and Copy of Government of NCT of Delhi’s letter dtd 10.2.2014 to the Police Commissioner that categorically request that all concerned officers of Delhi Police be directed that they are NOT to take action against any street vendors/hawkers in violation of the Supreme Court order dtd 9.9.2013. –Annexure P25 Colly

27.         Proposed Contemnors – The concerned Government authorities (MCD and Police) may be directed to identify the contemnors individually.

The Petitioner has been able to identify some of the contemnors from documents inter alia

–       the Writ Petition 144/2013 record

–       Status Reports of May 2013 and March 2014

–       FIR No. 145/2014 dtd 26.2.2014

–       videos and photographs taken on 26.2.2014.

However, many contemnors are missing from the above sources, and the MCD and Police may be directed to inquire provide their details to this Court.

The DETAILS of some of the PROPOSED Contemnors identified by the Petitioner:

GROUNDS

A.    Because Petitioner hawkers’ right to occupation continue to be obstructed by the said corrupt MCD and Police officials and tout Ram Avtar Rai despite Court order dtd 16.1.2013 that protect them from such obstruction,

B.    Because it is settled law in Seaward vs Patersen (1895-99) All ER 1127 that a person even if not a party to the proceeding, if abetting violation of any Court order with its knowledge, will be guilty of contempt. This brings the MCD and all other government authorities as well as Tout Ram Avtar Rai and MCD Councillor Jeevan Lal, within the fold of the first part of Order dtd 16.1.2013,

C.    Because the above has caused obstruction to their livelihood as a consequence and is also hit by Articles 14, 19(1)(g) and Article 21,

D.    Because the MCD and Police through their registration of a false and vengeful criminal case in FIR 145/2014 dtd 26.2.2014 against some key petitioner hawkers who have been exposing their misdeeds, are willfully flouting this Court’s Order dtd 16.1.2014 by obstructing their right to occupation,

E.    Because the motivated arrests of the 7 persons on 26.2.2014 on the basis of trumped up charges falsely concocted by the very persons who are being complained against, is also a willful flouting of this Court’s restraining order dtd 16.1.2014,

F.     Because the proposed construction in the midst of the Petitioner hawkers’ workplace and the removal of the Petitioner hawkers, their rehris and throwing their goods around, and taking away their wares amounts to contempt of this Court’s order dtd 16.1.2014,

G.    Because the humiliation the Petitioner hawkers suffered, on account of the above attack and the fear and terror caused to them in the pursuit of their occupation and livelihood, amount to interference and obstruction of their right to occupation and livelihood,

H.    Because unless this Court intervenes, initiates contempt proceedings, conducts an urgent and independent inquiry into this matter and stops this glaring flouting forthwith, such flouting by corrupt MCD and Police officials will continue unabated and unchecked,

I.     Because the concerned persons of the MCD and Police with their agent/tout, have unleashed a reign of terror in Harkesh Nagar Sabzi Mandi, Okhla Industrial Area Phase II in order to allow their corruption and extortion rackets to continue unabated,

J.     Because this Court requires to restore public confidence in the Rule of Law and in the ability of this Court to enforce its own orders,

K.    Because this Court under its jurisdiction under Article 215 of the Constitution of India, r/w its powers under S 11, 12 and 14 of the Contempt of Courts Act, 1973 has the power and duty to pass necessary orders disallowing such repeated and willful flouting of Court orders by the concerned persons,

L.     Because these actions are also in violation of Supreme Court order dtd 9.9.2013 and GNCTD’s instructions dtd 10.2.2014 to the MCD/SDMC and Police through their respective Commissioners to ensure that there is no flouting of Supreme Court order dtd 9.9.2013,

M.   Because it is settled law that abuse of due process calculated to defeat or nullify order of the Court and obstruct the administration of justice is a contempt of court ((1980) 3 SCC 311: Advocate General, State of Bihar vs Madhya Pradesh Khair Industries and Anr),

N.    Because it is settled law that disobedience of court orders strikes at the very root of the rule of law on which the judicial system rests, and that even passive, dormant apathetic disobedience where no positive role is attributable to a person, still his inaction may render him liable for an action of contempt, ((2012) 1 SCC 273: Maninderjit Singh Bitta vs UOI & Ors)

O.    Because unless this Court passes strictures against the Police and MCD in order to make an example of them, it will not ensure deterrent effect,

P.    That unless this Court intervenes and passes urgent and swift orders, the long-standing quest of the Petitioner hawkers to lead lives of dignity will stand defeated.

Prayer

The Petitioner therefore seeks that this Court:

A.   Initiate contempt proceedings against the Respondents

B.    Pass any other order or direction deemed fit.

THROUGH

Place: New Delhi

Date: 05.03.2014                                                                         COUNSEL

                                          INDIRA UNNINAYAR (ADVOCATE)

                                           KIRAT RANDHAWA (ADVOCATE)

                            NARAYAN KRISHAN (ADVOCATE)

B94 Belvedere Park, DLF Phase III

Gurgaon – 122 002

indiraunninayar@gmail.com | +91 98102 69803

kirat.randhawa@gmail.com | +91 99710 10487

narayankrishan602@gmail.com | +91 99538 79730

ORDER dated 12.3.2014

              IN THE HIGH COURT OF DELHI AT NEW DELHI

CONT.CAS(C) 176/2014 and CMs 4772-4773/2014

DELHI SHRAMIK SANGATHAN .                                …. Petitioner

Through: Ms Indira Unninayar, Advocate with Ms Kirat Randhawa,
Advocate

versus

MANISH GUPTA AND ORS                                 ….. Respondents

Through: Counsel for R-1 to 7 (appearance not given)

Mr Nawal Kishore Jha, Advocate for R-11 and R-13

Mr Sonal Kumar Singh, Advocate for R-12

Mr Subodh Kumar, Advocate for R-14

Mr Sanjeev Goyal, Advocate for R-16

Mr Shoaib Haider, Advocate for R-26

Mr C. Prakash, Advocate with Ms Neha Tanwar, Advocate for R-28 to
R-35

CORAM:

HON’BLE MR JUSTICE BADAR DURREZ AHMED, ACTING CHIEF JUSTICE

HON’BLE MR JUSTICE SIDDHARTH MRIDUL

O R D E R

12.03.2014

Issue notice.
Notice is accepted by the learned counsel for respondent No.1 to 7.
Notice is also accepted by the learned counsel for respondents 11, 12,
13, 14, 16 and 28 to 35. Notice shall go to the other respondents except
respondents 9 and 10, who for the time being are represented by counsel
appearing on behalf of respondent No.1 to 7.
Reply be filed within four weeks.
Renotify on 30.04.2014.

BADAR DURREZ AHMED, ACJ.

SIDDHARTH MRIDUL, J.
MARCH 12, 2014

Memo Of Parties

IN THE HIGH COURT OF DELHI AT NEW DELHI

IN THE HIGH COURT OF DELHI AT NEW DELHI

CONTEMPT  PETITION/CASE (CIVIL) NO. 176 OF 2014

IN W.P. (C) No. 144 OF 2013

MEMO OF PARTIES

     In the matter of:

Delhi Shramik Sangathan (DSS)

Through Its Convenor

Office at Lokhande Bhawan,

F-52, Vikas Nagar

Uttam Nagar

New Delhi – 110 059

Tel: 011-28031792, +91 98688 15915                           …Petitioner

Versus

Place: New Delhi                                           indiraUnninayar (Advocate)

Date:  10.03.2014                                          KIRAT RANDHAWA (ADVOCATE)

NARAYAN KRISHAN (ADVOCATE)

COUNSEL FOR PETITIONER

B94 Belvedere Park

DLF Phase III, Gurgaon – 122 002

indiraunninayar@gmail.com | +91 98102 69803

                                                 kirat.randhawa@gmail.com | +91 99710 10487

narayankrishan602@gmail.com | +91 99538 79730

REVIEW PETITION

IN THE HIGH COURT OF DELHI AT NEW DELHI

REVIEW PETITION NO. __________OF 2014

Arising out of Judgment dated 16.5.2014, passed IN WP(C) 144/2013

IN THE MATTER OF:

DELHI SHRAMIK SANGATHAN                             …PETITIONER

VERSUS

DELHI POLICE & ORS.                                           …RESPONDENTS

REVIEW PETITION OF ORDER/JUDGMENT DTD. 16.5.2014, UNDER PROVISIONS ANALOGOUS TO ORDER 47 R (1) R/W SECTION 114, R/W S 151 OF THE CODE OF CIVIL PROCEDURE

To

The Hon’ble Chief Justice

And Her Companion Justices of The Delhi High Court

OVERVIEW

1.     This review petition is being filed by the Petitioner as there are ‘errors apparent on the face of the record’ apart from ‘other sufficient reasons’ that justify and require review of judgment dtd 16.5.2014. The judgment is a gross miscarriage of justice and permitting it to stand will result in the continued failure of justice.

2.     Petitioner has pointed out most of these glaring errors/mistakes/reasons.     The Petitioner may seek to bring more of these on record should it be required. At this stage, they are adequate to show that the Judgment requires review and recall to restore the writ petition and the connected contempt petition.

3.     As the judgment sought to be reviewed disposed of two cases, namely WP (C) No.144/2013 and related Contempt Case No. (C) 176/2014, the Petitioner filed Review Petition No. 308/2014 on 1.7.2014, seeking review of the judgment in BOTH cases. However, the registry has registered Review Petition No. 308/2014 as review of judgment ONLY in the Contempt case and not in the Writ petition. To fulfil technical requirements, the Petitioner has now been required to file this review petition seeking review of the said judgment dtd 16.05.2014 passed in WP (C) 144/2013 also.

4.     Review Petition No. 308/2014 was listed on Friday, 11.07.2014 before this Court for the first time but could not be taken up as the Court time was over. It is now listed for 22.08.2014. The instant Review Petition may accordingly be heard along with the Review Petition No. 308/2014 as they are almost identical, seek review of the same judgment, and as the facts/cases are connected.

5.     Error 1/ Other sufficient reason – Petitioner not heard on facts and merits resulting in wrong conclusions against Petitioner-hawkers

§   The matter was listed once by way of roster change before this Bench on 7.5.2014, having been filed one and half years ago and heard on numerous occasions by two separate benches of Chief Justices of the Delhi High Court.

§   On 7.5.2014 itself, after a very short hearing and without hearing Petitioner on facts or merits, the judgment was reserved and then pronounced on 16.5.2014.

§   This denial of opportunity to assist the Court in understanding the facts and the prevailing law, compounded by the successful misleading of the Court by the Respondents on both facts and the law, have resulted in totally erroneous conclusions by the Court based on largely assumptions and presumptions, and surmise and conjecture. The Bench’s heavy reliance on a CD recording (Compact disc recording) prepared by the Delhi Police, obviously doctored and heavily edited without the benefit of any explanation, the few unlabeled pictures annexed by the MCD has also resulted in this.

§   The Court’s conclusion that the Petitioner-hawkers have flouted court orders and abused the law is wholly erroneous and wrong. The Petitioner-hawkers have neither abused court orders nor flouted the law to the best of their knowledge and intention.

ü    The Writ Petition WP(C) 144/2013 accordingly requires to be restored to address serious matters in larger public interest that were steadily being addressed by the Court before this hearing, but have suddenly been abandoned midway.

§   The connected Contempt Petition with notice already duly issued to 38 persons, and their replies awaited, also requires to be restored instead of an ex facie conclusion that the Respondents’ actions were justified, and that no case is made out to initiate contempt proceedings against any officer (Paras 13, 18 of the judgment).

ü    Failing this, the Respondents (Delhi Police and MCD) will get the message that they can get away with blatant and glaring flouting of court orders with utter impunity. Such outcome could not have been the intention of the Court in passing Judgment dtd 16.5.2014.

Consequent injustice 1

§   The Bench has overlooked progressive steps taken by two separate prior Benches of the Chief Justices of the Delhi High Court vide several prior orders passed prior to instant Judgment dtd 16.5.2014. These prior orders were passed after detailed hearings and due consideration of various applications and status reports filed by Petitioner, exposing the extortion racket and deliberate harassment by Respondents Delhi Police and MCD, and their flouting of this Court’s order dtd 16.1.2013.

§   These prior orders include:

                               i.    Order dtd 16.1.2013 protecting Petitioner-hawkers from interference by the police, wherein related ground Ground A expressly brings to light the requirement to pay bribes to be allowed to hawk (Main writ file – Pg 18)

(Order dtd 31.1.2013 of the Supreme Court in Maharashtra Ekta Hawkers / Gainda Ram cases, directed that no petitioner relating to hawkers be entertained by the Delhi High Court until its final decision in the matter.Accordingly, no substantive orders were being passed by this Court till after that order was vacated by the Supreme Court along with its final order and judgment dtd 9.9.2013 in the Ekta Hawkers / Gainda Ram case)

                              ii.    Order dtd 12.3.2014 issuing notice against 38 proposed respondents including the Police Commissioner and Commissioner of South Delhi Municipal Corporation, various local officials, the local municipal councillor and a named tout in contempt proceedings, prior to which a detailed status report dtd 4.3.2014 had been filed in the main writ petition. In fact the Bench of the Chief Justice orally directed the Petitioner to file the contempt petition during the hearing on 5.3.2014 (Pg U – List of Dates of Contempt Petition) and notice was issued in light of the repeated and willful flouting shown.

                            iii.    Order dtd 31.3.2014 directed status quo with regard to construction of public toilet as the MCD had commenced construction despite order dtd 26.03.2014 directing the MCD to indicate in a status report what construction they were proposing in the area in question. This was pursuant to Petitioner’s grievance that the toilet was being placed in their midst by the MCD to drive them away.

                            iv.    Order dtd 16.4.2014, which directed that a co-operative strategy for maintaining the cleanliness of the place be worked out between the parties’ counsel. That CCTVs be considered by the MCD. Thereafter, after conducting detailed research and additional site visit, petitioner’s counsel filed documents on the record on 29.4.2014 and 6.5.2014 for maintaining cleanliness in the area and the roles to be played by NGOs such as ‘Chintan’ and ‘Sulabh’ the NGO that works on public toilets and sanitation (Main writ file Pg 350 – 383, 384-399). Yet, this has been overlooked.

                             v.    Order dtd 16.4.2014 issuing notice to the Govt of NCTD and LG. This was in light of the responsibility of the GNCTD and LG for implementation of laws in Delhi and the sensitization programmes and corruption de-addiction programmes for Police and MCD officials sought by the Petitioner. (Main writ file – Prayer G, Pg 22, CM 4381/2014 Pg 299)

                            vi.    Frequent and short dates being given in 2014 in light of the Court’s attempt to address the Petitioner’s urgent pressing concerns as well as the serious larger concerns brought before it.

§   Consequent injustice 2

                               i.    The Petitioner-hawkers have been wrongly termed flouters of court orders and abusers of the law when in fact it is the other way round. This order will serve as a good cover for the Respondents to continue with their extortion racket with impunity.

                              ii.    Petitioner-hawkers have suffered grave damage to their reputation and dignity by this wrong order.

                            iii.    The order allowing the MCD and Police to decide what is legal and what is not, goes against the very grain of the Supreme Court order dtd 9.9.2013 read with the National Policy on Urban Street Vendors. By allowing the Respondents to demolish anything termed invalid by the very officials known to extort on this basis, the Bench has willy nilly handed back the very tool of extortion and harassment to the Respondent officials which this very Court had saved them from through the 16.1.2013 order (Para 15 of the judgment).

                            iv.    The Court has further left unaddressed the important reliefs of constituting an inquiry into the extortion racket sought by the Petitioner, with response from the LG and GNCTD (Delhi Govt.) re: their responsibility in ensuring implementation of these laws and introducing sensitization programmes and corruption de-addiction programmes for officials (Main writ file Pg 21-22, CM 4382/2014 Pg 299).

                             v.    The Court has also overlooked the other reliefs of proper placement of toilet, timely removal of garbage deliberately left on the streets and the hazardous dumping of large volumes of filth and suppurating garbage in open lands with serious risk to health (Main writ file Pg 21– Ground E Pg 19 – 20, Pg 352 – 353 Pictures Pg 386, 394.)

                            vi.    An entire Public Interest Litigation raised on behalf of 130 petitioner hawkers the vulnerable urban poor, by the organization DSS (Delhi Shramik Sangathan), raising the afore-mentioned serious concerns has been summarily and abruptly dismissed based on errors and misconceptions of both fact and law arising from the absence of hearing on facts and merits and the misleading documents placed on record by Respondents Delhi Police and MCD.

6.     Error 2/ Misconception of Facts – Petitioner-hawkers wrongly recorded as having been shifted to another site from their earlier hawking areas. Constructions at other areas, and malba not belonging to Petitioner-hawkers attributed to them; allegations never made by the Respondents wrongly recorded raising issues though never raised by the SDMC/MCD.

§   There are several glaring errors and misconceptions of fact that this Bench is under, some of which are as follows:

A. Wrong conclusion that Petitioner hawkers were SHIFTED from where they were hawking earlier:

§   The Bench/ Court is under the wrong impression that the Petitioner-hawkers were SHIFTED from the area where they were earlier hawking from (Para 1 of the Judgment). In fact, the said area Harkesh Nagar Sabzi Mandi is a natural market, and the Petitioner hawkers have been hawking from there since the early to mid 80s – for the past 25-30 years. They were however, asked to temporarily shift by being tricked by the Delhi Police in 2010 under the pretext of constructing the metro parking for DMRC (Delhi Metro Railways Corporation) BEHIND where they hawked from. They were thereafter obstructed from conducting their trade throughout the day with dignity, as there were threats, extortion and mountains of garbage placed where they hawked from by the MCD.  Some of the garbage was cleared only after the Petitioner’s counsel wrote to the then Chief Minister of Delhi (Main writ file – Pg M). This was after two writ petitions before this Court and several representations before the so-called Zonal Vending Committee (ZVC) of the MCD.

§   Petitioner hawkers thus continued to hawk from their old places. This was now in front of a newly constructed wall of the DMRC parking and on the opposite side of the street (Main writ file – Sketch Pg 42. Pictures Pg 96). They were neither shifted nor were they sitting in the middle of the street or road.

§   The Bench/Court has erroneously recorded that the SDMC had said that the DMRC had a right to remove them (Para 2 of the Judgment); however, in fact, the Petitioner-hawkers were and remain on MCD land OUTSIDE land acquired and constructed for parking by the DMRC.

§   Consequent injustice

This wrong understanding that they were shifted gives rise to room for presumptions that Petitioner-hawkers could be encroaching or sitting in the middle of the road/street, both of which they are not.

B. Erroneous recording of response to contempt petition including that Respondent raised an issue that the hawkers raised temporary and semi-permanent structures when this is not an issue before this Court

§   The Bench/Court has erroneously recorded that there is a response to the contempt petition (Para 5 of the Judgment). In fact, there is no response to the contempt petition on the record. Accordingly the content of such response recorded by the Court is also grossly erroneous. Issues that were never raised by the Respondents have been erroneously recorded as such.

(Note: Petitioner was served copies of one brief affidavit by the MCD/SDMC and one brief affidavit by the Delhi Police but upon inspection of the files found they were not on the record).

§   Even in the affidavits filed by Respondents SDMC and Delhi Police in response to Petitioner’s Status Report dtd 4.3.2014 in the main writ petition, it is apparent that the response cited by the Bench/Court in its Judgment is not there.

§   The response to the contempt petition has been wrongly reproduced by the Court in PARA 5 of its Judgment/Order dtd 16.5.2014 with the following glaring errors:

                               i.    The Bench/Court has wrongly recorded that the Respondent alleged that under the garb of interim orders passed, the hawkers raised semi-permanent structures followed by raising temporary structures. The SDMC AND POLICE NEVER MADE ANY SUCH ALLEGATION.

                              ii.    The SDMC has neither alluded to the raising of semi-permanent structures (bamboo, tarpaulin and tin sheets nor to any building material waste (malba) brought to the said site as wrongly recorded by the Bench. Neither is there any allegation regarding the Petitioner-hawkers bringing malba with the purpose of using the old bricks in the malba to raise semi-permanent structures by using the old bricks to erect walls, or putting roofs in place by using old tin-sheets or tarpaulin. But the Bench has erroneously recorded this as part of a response to the Petitioner’s Contempt Petition.

                            iii.    The SDMC has not alluded to any action on its part to remove the above, but the court has erroneously recorded that the SDMC has raised them as issues.

                            iv.    In its affidavit (Main writ file Pgs 307-313), the SDMC has made one specific allegation to justify its demolition which was that “some hawkers encroached upon the public land and carried out pucca construction in the ROW (right of way) of the area in question”. It said that the vendors were not permitted to raise any kind of pucca construction at any place, especially on the ROW (Right of Way). The referred pucca structure was described as being used as a sweet shop.

                             v.    Neither the SDMC nor Delhi Police have alluded to taking action in rendering assistance to the ‘DMRC’ in constructing the public toilet. But the Court has wrongly recorded the above. The said toilet was proposed by the MCD/SDMC and not the DMRC.

                            vi.    The SDMC has made general statements that “the hawkers/street vendors usually encroaches upon the ‘Right of Way’…” But there is no allusion to the issues recorded by the Court nor was that said to be the basis of action taken against the Petitioner-hawkers (Main writ petition – Pg 311).

§   Consequent injustice

This has resulted in the Court raising a fresh issue that was not before it and adjudicating upon it without an opportunity to the Petitioner to be heard.

C. Erroneous sequence of events arrived at based on impressions gathered from heavily edited and misleading CD recording of Police

§   The above sequence of events recorded by the Bench/Court in its Judgment dtd 16.5.2013 is based on the Court’s erroneous impressions gathered from the heavily edited and misleading CD prepared by the Delhi Police bolstered by presumptions by the Court wherein it has alluded to malba which “can be used easily to construct temporary structures overnight” (PARA 8 of the judgment).

                               i.    The said malba shown in the Police’s video referred to (Para 8 – line 6 of the judgment) is not even at the hawking area known as Harkesh Nagar Sabzi Mandi but is at another place altogether, a residential area called Harkesh Nagar. [Time in Police’s CD (Pg 349 of the Writ Petition): 0:00 -7:49 minutes and 35:50 – 36:39 minutes]

                              ii.    The second reference to the malba where the bulldozer proceeds (Para 8 – lines 8, 9 of the judgment) is at another pile of malba much smaller, which is at the proposed site of the toilet at Harkesh Nagar Sabzi Mandi. The second pile of malba which is at the vending area also, neither belongs to the Petitioner-hawkers nor has been used by them for the purpose of any construction.

                            iii.    The Court has not made a distinction between these 2 separate piles of malba at two separate places one of which is quite removed from the vending area.

                            iv.    The Court has overlooked several other documents on the record including the issue of illegal storage of malba and sand amidst the Petitioner-hawkers raised by Petitioner in its status report of May 2013. The illegal placement of a tempowalah for a rent of Rs. 10,000 by the Delhi Police has been overlooked by the Court (Main writ file Pg 172-173, 191).

§   The kaccha structure with which the video opens recorded in the beginning of Para 8, made with tin terrace and bricks is also not at the Harkesh Nagar Sabzi Mandi, and the gesticulating angry crowds shown are not the Petitioner-hawkers. They are from Harkesh Nagar residential area, quite removed from where the Petitioner-vendors hawk from (Time in CD 0:00–7:49 minutes). Similarly, the demolished structures described at the end of para 8 of the judgment are also not at the hawking area called Harkesh Nagar Sabzi Mandi, but are shots of the same structure taken at Harkesh Nagar residential area (Time in CD 35:50 – 36:39 minutes). These clips have been deliberately placed in the video by the Delhi Police and interspersed with scenes from Harkesh Nagar Sabzi Mandi in order to misrepresent to the Court that these demolished kaccha structures were at the vending area.

§   Consequent injustice

                               i.    The Court has erroneously raised issues that were neither raised by the Respondents nor can be attributed to the Petitioner-hawkers.

                              ii.    The Court has erronelously concluded a whole string of abuse of interim Court orders by the Petitioner-hawkers on erroneous basis.

7.     Error 3/ Misconception of Facts – Petitioner-hawkers wrongly communicated to be violent, pushing the police and pelting stones

§   The Bench/ Court has erroneously described some events in the latter part of Para 8 of its Judgment. It says after the scene where people are described as lying in front of a sweet shop that – “It is at this stage that hell breaks loose. People start pushing the police personnel and a few are seen running away and after some distance, one can see them pelt stones at the police officers.”

§   The above read with the latter portion of Para 5 that says that it is the Police officers’ case that they gave protection to the Municipal Officers when “the unruly vendors resorted to violence” and read with Para 13 – that “the action taken by the police, at the asking of the Municipal authorities, is ex facie justified” and Para 18 – that “as regards the contempt case, from the videos seen by us, no case is made out to initiate any contempt proceedings against any officer” wrongly gives the impressions that the Petitioner-hawkers were violent, pushed  police officials and threw stones at the police.

§  WHEREAS THERE IS NOT A SINGLE SCENE OF ANY PETITIONER-HAWKER EXHIBITING ANY VIOLENCE AGAINST ANY POLICE OFFICER, BE IT BY WAY OF STONE-THROWING OR PUSHING.

§  Indeed, it is the Police that is seen to be pushing Rubendra Jha before arresting him. Rubendra Jha is the petitioner-hawker who is seen asking the MCD and Police officials the purpose of their visit. (Time in CD 24:35 – 25:45)

§  Similarly, a scene of mild stone-throwing from a distance (not heavy stone pelting as alleged) shown in the CD was not at the vending sites but on a road perpendicular to the vending area /street. The throwers are not the Petitioner-hawkers (Time in CD 27:35 – 27:55 minutes). Such throwing is shown to occur later, after the Police makes some arrests. The Police has placed this scene too in the CD, in order to mislead the Court and misrepresent facts.

§  Consequent injustice

                                         i.    The Petitioner-hawkers are being made to bear the brunt of being falsely termed “unruly” and “resorting to violence” when that is totally false.

                                        ii.    Stone-throwing by persons who are neither Petitioner-hawkers nor at the vending area has been wrongly attributed to them.

8.     Error 4/ Misconception of Facts – glaring contradiction in affidavits of MCD and Delhi Police versus FIR versus CD overlooked by Court.

§   The Bench has overlooked the glaring contradiction in the affidavits by the MCD and Delhi Police vis-à-vis what is recorded in the FIR vis-à-vis what is shown in the CD prepared by the Delhi Police.

§   On the one hand, the SDMC says on affidavit that “the street vendors started pelting stones” on the SDMC officials and police officials when the Police officials requested them to give way to the officials to carry out their statutory functions, resulting in law and order problems (Main writ file – Pg 310).

§   The Delhi Police in turn says that few miscreants incited the public to indulge in violence and the “public resorted to heavy stone pelting without any reason”. That there was a grave law and order problem and few offenders were identified and “arrested as per law” (Main writ file – Pg 345).

§   The Court has also recorded that the Delhi Police’s case is that it gave its officers protection when “the unruly vendors resorted to violence” (End of Para 5 of the Judgment).

§   However in FIR No 145, dtd 26.2.2014, the Police describes 7 hawkers some of whom are the Petitioner-hawkers or their relatives, to be shouting and gesturing towards the crowd to instigate a crowd to attack and threaten the MCD and Police. The Police in its FIR then expressly says that these 7 persons along with the crowd started pelting stones forcing the MCD officials to stop their work and causing injury to two Police officials (Contempt Petition Pgs 97, 99).

§   Whereas, the events and their sequence are shown very differently in the video prepared by the Delhi Police.

                               i.    In the Police CD, the Petitioner-hawker Rubendra Jha is shown trying to find out the purpose of the MCD visit and also, to explain the Court order to the MCD and Police officials. It is evident that the MCD is not very forthcoming about the purpose of its visit. (Time in CD 09:12 – 14:45)

                              ii.    After a while, when the MCD moves towards the proposed site for the ‘public toilet’, Petitioner-hawkers are shown to assist the officials in clearing the malba and debris at the site of the ‘public toilet’. (Time in CD 15:34 – 20:49)

                            iii.    Subsequently, Petitioner-hawker Shyam Sundar with cap and apron along with his wife lie down before their dukaan/shop as the Police and MCD menacingly move along with bulldozer towards his shop without providing him any explanation / reason, it is the Police that is seen to push aside Petitioner hawker Rubendra Jha then take him to their jeep, and arrest him. The Police arrest Rubendra Jha in a targeted manner when he is seen to urge other hawkers to come and join him and Shyam Sundar and his wife. He is then pushed aside and taken away by the Police.(Time in CD 21:02 – 25:45)

                            iv.    Rubendra Jha’s arrest PRECEDES the alleged stone-throwing as per the Police’s own CD (Time in CD 25:00 – 25:25). Neither he nor any of the other 6 persons named in the FIR are shown to be throwing any stones. Stone-throwing (Time in CD 27:30-27:58)

                             v.    This sequence of events is thus at gross variance with both the Respondents’ affidavits and the FIR registered by the Police.

                            vi.    THERE IS NOT A SINGLE SCENE OF VIOLENCE BY A SINGLE PETITIONER HAWKER. Indeed, it is the police that is shown to be pushing hawkers and then chasing them, conducting a lathi charge and terrorizing them. (Time in CD 24:35 onwards)

                           vii.    There is no scene of 7 hawkers as stated in the FIR, either inciting anyone or throwing stones on anyone along with any crowd. Similarly, there is no scene of any police officer getting injured. Had that truly been the case, it would certainly not have been deleted by the Delhi Police.

§   Consequent injustice

                               i.    The acceptance and reliance on patently false statements made by the SDMC and Police in the face of obvious and glaring contradictions between their affidavits, the FIR and the Police CD has resulted in totally erroneous conclusions by the Court. That even a single Petitioner-hawkers was violent or incited others to violence is far from the truth but has been taken as the truth by the Court resulting in grossly adverse orders against them.

9.     Error 5/ ‘Other Sufficient Reasons’ – Reliance by the Bench/Court on a CD obviously doctored and tampered by the Police

§   The Court has relied upon a 50 minute CD recording obviously heavily edited and tampered by the Police. The Police alluded to a starting time of 2.00 p.m. in its affidavit (Main writ petition Pg 344) and 3.00 p.m. in the FIR (Main writ petition Pg 229, 231). But the CD also shows nightfall, so the entire “alleged encroachment removal drive” including arrests, etc. could not have taken place in a span of 50 minutes. The recording of the Police is clearly heavily edited.

§   The deliberate deletion of ‘inconvenient’ scenes such as that of the MCD officials confiscating rehris/handcarts with vegetables strewn around in violation of this Court’s order dtd 16.5.2013 is obvious. This scene of handcarts being taken away with vegetables strewn around is provided in pictures in the main writ petition (Pgs 269, 270, 274 – 277) and the contempt petition (Pgs 67, 68, 72 – 75) The Judgment notes the 10 minute recording (CD) by the Petitioner showing the municipal officers removing handcarts (End of Para 4 of the Judgment) but overlooks the ‘doctoring’ of the CD or deliberate ‘non-recording’ of these events by the Police.

§   Apart from this, the Police’s CD is shown to have been carefully tampered and edited to intersperse scenes of areas that are not at Harkesh Nagar Sabzi Mandi but are placed in the CD to mislead and misrepresent the Court.

                               i.    The mixing of the incident at Harkesh Nagar Sabzi Mandi with demolished brick structures from the Residential area at Harkesh Nagar is one such example (Time 0:00 –7:49 minutes and 35:50 – 36:39 minutes)

                              ii.    The deliberate highlighting of 3 large stones coincidentally placed in a straight line to indicate the aftermath of the falsely alleged stone-pelting by Petitioner-hawkers (Time – approx. 36:00 minutes)

                            iii.    The concealment of the fact that the stone-throwing if any, took place on another road altogether, and not at the Petitioner-hawkers’ vending area, is another example

                            iv.    The several edits including the suppression of Rubendra Jha being beaten up is yet another example of tampering.

§   Consequent injustice

                               i.    The Bench/Court has placed heavy reliance on a CD recording by the Police which is obviously tampered and doctored to suppress and mislead, conceal and misrepresent. The Bench/Court could not have relied upon such an obviously tampered recording to base its conclusions, conclusions which are totally adverse against the Petitioner-hawkers and which are totally erroneous.

                              ii.    This is all the more important and relevant given the CONTEXT of the Writ Petition and Contempt Petition wherein the Petitioner and Petitioner-hawkers have exposed the corruption and extortion rackets by the MCD and Police officials. The Police’s CD concocted against the Petitioner-hawkers with such glaring tampering could not have been relied upon by the Bench/ Court.

                            iii.    It is also all the more relevant as the Police has obviously by strange coincidence, singled out some of the very Petitioner-hawkers who had filed specific complaints before the SHO and DCP against the Delhi Police in 2013 re: their haftas and extortion (Main writ file – Pgs  177 – 182).

10.  Error 6/ Misconception of Facts – Pictures downloaded from video or copied from the records have been misunderstood and misconstrued to wrongly conclude that the Petitioner street vendors are using judicial orders to flout the law

§   The first two photographs in Para 9 of the Judgment are not at Harkesh Nagar Sabzi Mandi, but are at another place, a residential area called Harkesh Nagar. The Police has not bothered to explain this to the Court either in its affidavit or in the video.

§   The malba shown in the third picture in Para 9 of the Judgment does not belong to the Petitioner-hawkers as already explained above and was complained against and brought to the notice of this Court by way of Petitioner’s status report of May 2013 (Main writ petition Pg 172-173, 191). The question of using the said malba by the Petitioner-hawkers accordingly does not arise as they neither own it nor have constructed brick walls as presumed by the Court. The Court has taken this picture from the photograph placed on the record by the SDMC (Main writ petition Pg 321), alluded in para 4 of the SDMC’s affidavit (Main writ petition Pg 308).

§   It may be noted that the SDMC has also not alleged any such misuse of the malba by the Petitioner-hawkers and has merely alluded to it in light of clearing it for constructing the toilet.

§   THE COURT HAS OVERLOOKED BOTH THE ABOVE AND HAS MADE A GLARING ERROR IN PRESUMING THAT THE PETITIONER-HAWKERS WOULD USE THIS MALBA TO CONSTRUCT BRICK WALLS.

§   In Para 10 of its Judgment, the Court has wrongly concluded from the photographs that the street vendors are using judicial orders to flout the law.

§   Further, in Para 12 of its Judgment, the Court has wrongly surmised and concluded that “It is apparent that the vendors have brought malba, consisting of retrieved bricks from buildings which have been demolished, to the site and the obvious intent would be to surreptitiously raise temporary brick structures and cover them with tin sheets or tarpaulin.”

§   PETITIONER-HAWKERS HAVE NOT CONSTRUCTED BRICK WALLS TO SUPPORT TIN SHEETS “SURREPTITIOUSLY” OR OTHERWISE. THESE STRUCTURES DESCRIBED BY THE COURT DO NOT BELONG TO THEM AND ARE NOT SHOPS/DUKAANS THAT THEY VEND FROM.

§   Consequent injustice

                               i.    The Court has wrongly presumed that the Petitioner-hawkers have constructed brick walls using malba shown lying in heaps in the police’s video and the SDMC’s photograph.

                              ii.    The Court has wrongly presumed/concluded that the Petitioner-hawkers are using judicial orders to flout the law.

11.  Error 7/ Misconception of Facts and Laws – Pictures of the sweet shop / mithai dukaan and plastic sheets propped on bamboo poles have been misunderstood and misconstrued to wrongly conclude that the Petitioner-hawkers are flouting court orders. The Court is also relying by an old regressive definition of street vending, whereas the present definition is considerably wider and far more progressive

§   The fourth and fifth pictures of the Judgment showing the sweet shop with refrigeration device are being dealt with after the sixth and seventh pictures of the Judgment with plastic or tarpaulin sheets on bamboo poles. These are being addressed along with Paras 10, 11, 12, 13 and 14 of the Judgment.

The sixth and seventh pictures of the Judgment – show the following – that:

§   PETITIONER-HAWKERS EITHER SIT ALONGSIDE AN ‘EXISTING WALL’ BEHIND THEM OR SELL THEIR WARES FROM HAND-CARTS/REHRIS. The said vending area is Harkesh Nagar Sabzi Mandi, Okhla Industrial Area, Phase 2.

§   First of all, the Petitioner-vendors have not constructed any wall, but are using EXISTING walls only to take their support and use protective covers to cover their wares. There is not a single picture to show that they have constructed any brick walls to place tin structures upon them, etc. Neither have they brought malba consisting of retrieved bricks from demolished buildings as recorded by the Court (Para 12 of the Judgment).

§   NEITHER IS THERE ANY ALLEGATION BY THE RESPONDENTS SDMC OR POLICE TO THAT EFFECT.

§   The Petitioner-hawkers are NOT in the process of erecting ‘permanent structures’ as recorded by the Court. NOT A SINGLE PETITIONER-HAWKER IS IN THE ROW/ Right of Way as wrongly recorded by the Court and wrongly alleged by the SDMC (Para 10 of the Judgment, Main Petition File – Pg 309, 311).

§   The Petitioner-hawkers are also NOT TRESPASSERS and have the RIGHT TO BE HEARD as per the National Policy and Supreme Court Judgment dtd 9.9.2013 contrary to what the Court has recorded (Para 11 of the Judgment). To term them trespassers or deny them the right to be heard before their removal is in the face of Supreme Court Judgment dtd 9.9.2013 (Contempt Petition – Pg 132 – Clause 1.3 of the National Policy r/w Supreme Court Judgment dtd 9.9.2013 Pg 181 Para 15, and Pg 188).

§   Due to the non-implementation of the National Policy and other laws for several years together, the NCTD Special Provisions Act, 2011 Ordinance extended till End 2014, protects street vendors hawkers from punitive action. The MCD and Police could not have removed any hawker/street vendor, as per this Ordinance too without adhering to the National Policy AND for a specific public project (Main Writ file, Pg 132-134, 139-144).

§   Indeed, under the National Policy it is the duty of the State to protect the RIGHT OF THESE MICRO-ENTREPRENEURS TO EARN AN HONEST LIVING (Main writ file – Pg 104, Cl 1.7)

§   The Court has wrongly concluded that the action taken by the Police at the asking of the Municipal authorities is ex facie justified. This is based on the Court’s wrong impression that there is abuse of Court orders by the Petitioner-hawkers under the garb of Court orders and that they are trespassers and that they accordingly do not have the right to be heard. ALL THESE ASSUMPTIONS ARE WRONG IN FACT AND LAW  (Para 13).

§   Similarly, the Court has presumed that the Petitioner-hawkers are required to set up stationary vending only with tehbazari rights, and has cited the MCD’s policy of the old 6×4 tehbazari allotment system (Para 14 of the Judgment). Whereas the National Policy and Supreme Court judgment include EXPLICIT/IMPLICIT permissions by the authorities (Contempt Petition – Pg 135 – Clause 2.1 Definition). The regressive system of producing documents of fines / challans is thus no longer regarded as ‘proof of vending’ from a place. Further where there is a variance between the National Policy and other laws including municipal or state laws insofar as they pertain to street vending, the National Policy shall prevail (Contempt Petition – Pg 191, Clause (xii)).

The fourth and fifth pictures of the Judgment show that:

§   There is a dukaan with Indian mithai stored in a refrigerating device. There is no permanent wall on either side of it, nor a permanent roof.

§   The refrigerating device used by the vendor is not a violation, but is to keep street food/mithai hygienic; refrigerating / cold storage devices are now termed a basic civic amenity under the National Policy (Contempt Petition – Pg 140 Clause 4.4 vii)). Further the Supreme Court says that where there is a variance between the National Policy and other laws including municipal or state laws insofar as they pertain to street vending, the National Policy shall prevail (Contempt Petition – Pg 191, Clause (xii)). In this context, the Bench terming the mithai wala’s refrigeration to be a brazen violation is a MISCONCEPTION OF LAW under the present legal framework. Similarly, the lack of challan-documents of the Petitioner-vendors cannot be used to deny their prior existence at the said vending area and to term them trespassers (Para 14 of the Judgment), as the definition of hawkers includes those given IMPLICIT CONSENT by the authorities (Contempt File – Pg 135 Clause 2.1). The present method will use a  photo-census by the Town Vending Committee backed by inquiry, as provided under the National Policy, in order to verify hawkers and their existence all over the country. This will include the Petitioner-hawkers who have been hawking/vending at Harkesh Nagar Sabzi Mandi for the past 25-30 years or so.

Prevailing law – National Street Vendors Policy upheld by Supreme Court Judgment dtd 9.9.2013

§   At this stage, it is opportune to point out that street vending has been defined in the National Policy to cover a VERY WIDE RANGE OF ACTIVITIES and DEFINITIONS, and this has been upheld by the Supreme Court judgment dtd 9.9.2013, undoubtedly the law of the land. The Supreme Court has directed that until a new law is enacted and brought into force, the National Policy and its directions will prevail, the objective being to protect street vendors from constant harassment and victimization (Contempt File – Pg 181 – Supreme Court judgment – Para 15, Pg 192 – Sub para (xvi), Para 17). The definition of street vending shows very clearly that Petitioner-hawkers have neither abused nor intentionally flouted court orders or the law.

                               i.    Regarding plastic or tarpaulin sheets supported by bamboo poles put up over the dukaans of the Petitioner-hawkers:  – these have been put up by the Petitioner-hawkers for protection of themselves and their wares; and PLASTIC and other covers are expressly provided for as per the National Policy read with Supreme Court judgment and order dtd 9.9.2013. The absence of objections by the SDMC shows there is IMLICIT CONSENT by it.

                              ii.    As per the definition there, street vending includes ‘stationary vending’ which in turn includes vending from ‘COVERED SPACES’ (Contempt Petition Pg 135 – Clause 2.1); stationary vending is not restricted to “open tehbazaris” as the Court has assumed in Para 10 of its Judgment.

                            iii.    Street vending only excludes ‘PERMANENT BUILT UP STRUCTURES’. It includes occupying spaces on pavements or other public places either open/covered with implicit or explicit consent of the authorities (Contempt Petition Pg 135 – Clause 2.1).

                            iv.    Urban street vendors as per the Policy include all local/regional specific terms including footpath dukandaars, sidewalk traders etc. (Pg 135-136 Clause 2.2).

                             v.    Only land owned by the Indian Railways is exempt from the ambit of the policy (Pg 136 – Clause 2.2);  other public spaces are included, including land owned by MCD (Pg 135 – Clause 2.1).

                            vi.    Provision for PROTECTIVE COVERS to protect wares of street vendors as well as themselves from heat, rain, dust, etc. are termed “basic civic facilities” under the National Policy. They are included in the list of facilities meant to be provided by the municipal authorities. (Contempt Petition – Pg 140, Clause 4.4 vi)).

                           vii.    Similarly, provision of storage facilities including COLD STORAGE for specific goods like fish, meat and poultry is part of that list. The list is not an exhaustive one, and other basic facilities could be conceived (Contempt Petition – Pg 140, Clause 4.4 vii).

                         viii.    Eviction, relocation and confiscation – If the authorities come to the conclusion in any given instance that genuine public obstruction of a street, sidewalk etc. is being caused by street vending, a mechanism of ‘DUE NOTICE’ has been provided for and a two stage notice is provided for. Even in a no-vending zone, a few hours have been provided for to clear the space occupied. (Contempt Petition – Pg 145, Clause 5.1). This right to ‘DUE NOTICE’ has been expressly reproduced in the Supreme Court Judgment and Order (Contempt Petition Pg 188)

1.     It is no-one’s case that the said zone is not a hawking zone, so even a few hours of notice would have been unlawful, let alone a complete ABSENCE of NOTICE.

2.     Even if there were any genuine obstruction in the Right of Way, which there was not, a proper system of ‘DUE NOTICE’ is mandated and WAS WILFULLY FLOUTED BY THE SDMC ON 26.2.2014. The SDMC and Delhi Police launched a targeted attack just because the Petitioner, on behalf of the petitioner hawkers, dared raise its voice against the extortion racket.

                            ix.    Confiscation of goods is expressly mentioned as something that should happen only as a last resort rather than routinely. Street vendors shall be entitled to get their goods back within a reasonable time (Contempt Petition – Pg 145, Clause 5.2)

1.     The Petitioner vendors lost their goods and rehris; their confiscation was in willful violation of Order dtd 16.1.2013 as well as the Supreme Court order upholding the National Policy.

                             x.    THE APPROPRIATE GOVERNMENT IS TO MAKE SUITABLE AMENDMENTS TO THEIR EXISTING LAWS/RULES WITH A VIEW TO REMOVING IMPEDIMENTS IN THE IMPLEMENTATION OF THE NATIONAL POLICY (Contempt Petition – Pg 145, Clause 5.4)

                            xi.    The Supreme Court has further directed that:

1.     ALL street vendors / hawkers shall be registered in accordance with Para 4.5.4 of the 2009 Policy (Contempt Petition – Pg 191, Sub-para (vii)), which is a simple fee-based registration based on photo-census by the TVC (Town Vending Committee) (Contempt Petition – Pg 142-144, Clause 4.5.4)

2.     All existing street vendors / hawkers shall be allowed to operate till the exercise of registration and creation of vending / hawking zones is completed as per the 2009 policy (Contempt Petition Pg 192, Sub-para (xv))

3.     That the State Governments, Administration of Union Territories and municipal authorities shall be free to amend their legislations to bring them in tune with the 2009 policy. IN CASE OF ANY REMAINING CONFLICT INSOFAR AS THEY RELATE TO STREET VENDORS/HAWKERS, THE 2009 POLICY SHALL PREVAIL (Contempt Petition – Pg 191, Sub-para (xii)).

4.     That the Supreme Court directions shall remain operative till an appropriate legislation is enacted and is brought into force (Contempt Petition – Pg 192, Para 17). This read with Para 15 shows that the purpose is to ensure protection against constant harassment and victimization and save the livelihoods of the street vendors (Contempt Petition – Pg 181, Para 15).

§   Consequent Injustice

                               i.    Despite such clear directions of the Supreme Court and the National Policy 2009 on the record, the Bench/Court has overlooked both and relied upon outmoded municipal laws and rules.

                              ii.    The protection envisaged by this Court vide PRIOR orders and the Supreme Court’s protections upholding progressive and beneficial policy that encourages street vendors to work in a conducive environment, have both been overlooked.

                            iii.    The perseverant and diligent adherence by the Petitioner-hawkers to the prevailing law amidst huge uncertainties deliberately maintained by the authorities regarding the law and regarding street vending as an occupation, has been erroneously termed unlawful in the Judgment.

12.  Error 8/ Misconception of Law and Facts – The Court is under the erroneous impression that street vending is not meant to include refrigerating devices to stores foods such as sweets. The Court is also under the erroneous impression that the MCD had attempted to take action against this among other things, on 26.2.2014, and that therefore its action was accordingly justified.

§   The misconception of law that refrigerating devices for cold storage is not what street vending is meant for (Para 12 of the Judgment) has already been addressed above.  The law expressly provides for storage facilities including COLD STORAGE for specific goods like fish, meat and poultry, where the list is not an exhaustive one (Contempt Petition – Pg 140, Clause 4.4 vii).

§   The MCD has not raised sweet storage or setting up a sweet shop as an issue in the entire case. This was a fresh issue raised by the Court in its judgment.

§   The SDMC’s target of demolition on 26.2.2014 has been stated to be altogether different in its affidavit in the main writ petition; in the MCD’s counter it says that it had proposed to demolish a so-called pucca structure wrongly mentioned by it as being in the ROW (Main writ petition – Pg 309). The MCD has neither raised objection to the sale of mithai nor the refrigerating device in its counter, showing its IMPLICIT consent to both.

§   The MCD was in any case, glaringly wrong even in attempting to raze down even such a so-called pucca structure without prior notice. DUE NOTICE as already shown above, is mandated in two stages in the National Policy upheld by the Supreme Court.

§   Consequent Injustice

                               i.    The Court has raised issues that have not been raised by the Respondents. The Court has overlooked the IMPLICIT CONSENT by the authorities in some of these.

                              ii.    The Court has also passed orders on these issues raised by it, without any hearing on these issues, which is gross injustice.

13.  Error 9/ Misconception of Law and Facts – The Bench/Court is under the erroneous impression that the Petitioner-hawkers are trespassers and may be sitting in the middle of the road, and did not have the right to any hearing prior to the demolition by the SDMC and Police

§   The Bench appears to be under -the impression that some Petitioner-hawkers may even be sitting in the middle of the street flouting the law (Para 10). The question put to the Petitioner’s counsel during the brief hearing was a general clarification in law with regard to removal of anyone sitting in the middle of the street. The answer to that question may not be treated as any indication of the law-abiding Petitioner-hawkers to be sitting in the middle of the road or having any intention to flout court orders. Indeed, it was clarified there and then that the Petitioner-hawkers are neither encroachers nor sitting in the middle of the street.

§   The Court has further overlooked that the Petitioner had in 2013 itself, brought on record the unlawful acts of the Delhi Police in creating additional middle row of vendors in the middle of the street to take haftas from them (Main writ petition – Pg 173).

§   The Court has thereafter wrongly termed the Petitioner-hawkers ‘trespassers’ and wrongly concluded that they have no right at all, leave alone the right to be heard (Para 11 of its Judgment).

§   Consequent Injustice

                               i.    The Court has wrongly concluded that the Petitioner-hawkers are trespassers.

                              ii.    The Court has wrongly denied the Petitioner-hawkers the right to be heard, a basic principle of natural justice, and a specific provision expressly provided in the National Policy 2009 and Supreme Court Judgment dtd 9.9.2013. (Contempt Petition – Pg 145,188)

14.  Error 10/ Misconception of Law – An individual case or few individual cases of unconfirmed impressions of flouting have been taken to dismiss an entire PIL brought before the Court on behalf of the urban poor

§   Even if there were flouting by one or more individual Petitioner-vendors (and there is no willful flouting by the Petitioner-hawkers who have always exercised utmost care to abide by the law and lead honest lives), the requisite course in law is to issue notice to that or those individuals, and take action following due process.

§   Such individual case or cases would be segregated from the instant PIL raising much bigger concerns and issues. Such individual cases would require to be dealt with separately AFTER ‘DUE NOTICE’ as defined in the National Policy upheld by the Supreme Court and after providing an opportunity to be heard before passing any adverse orders against any individual Petitioner-hawker.

§   Indeed, INDIVIDUAL violations, if any, could not have been taken as a basis for dismissing an entire PIL raised by the Sangathan DSS on behalf of a large group of 130 street vendors on larger concerns of extortion, court directed inquiry, sensitization of officials, corruption de-addiction programmes. The Petitioner and Petitioner-hawkers, who are urban vulnerable poor known to be targeted by municipal and police officials for extra earnings, have come forward with this PIL at great risk to themselves in order to expose such rackets and be allowed to pursue their trade without the indignity of paying bribes.

§   However, the Court/Bench has based its erroneous conclusions of “misuse” of court orders has summarily and wrongly terminated the proceedings of the writ petition and has dismissed the writ petition (Para 16 of the Judgment)

§   Consequent Injustice

                               i.    The Court has wrongly dismissed an important writ petition that had inter alia, raised issues of larger import viz. the sensitization and de-addiction from corruption of municipal and police officials.

                              ii.    The Court abruptly terminated this petition although it had made considerable strides to provide protection and other reliefs over the past 1½ years to the Petitioner-hawkers.

15.  Error 11/ Misconception of Law – The Court wrongly dismissed the Contempt Petition even though clear cases of contempt are made out and overlooked the swift and salutary steps taken by way of prior court orders

§   The Court has gravely erred in concluding that no case of contempt it made out against any officer and in dismissing the Contempt Petition (Paras 18, 19 of the Judgment).

§   It has overlooked its own viewing of removal of handcarts by the municipal officers (Para 4 of its Judgment).  This is only one incident of willful flouting by the MCD and Police.

§   It has overlooked the glaring contempt brought before the Court by way of Status updates in May 2013 as well as subsequent incidents of flouting, apart from Status report in March 2014 (Pgs 37-61 Status Report filed in May 2013, Pg 62-66, Legal notices from Petitioner to Police on 9.5.2013, the remaining annexures, photographs and the contempt petition itself).

§   It has overlooked that the Petitioner filed the Contempt case after the Court itself suggested that the case be filed when it took serious note of the willful and repeated flouting of court orders by the municipal and police officials (Contempt Petition – Pg U – dt 5.3.2014 in List of Dates). It has overlooked that, the Court previously hearing the matter had listed the matter after a very short date thereafter, re-notifying it on 26.3.2014. That the Petitioner accordingly prepared the case immediately and filed it within 5 days upon which it was listed on 12.3.2014 and notice was issued to 38 persons on the same date. That after the Contempt notice on 12.3.2014, the Court further restrained the Municipal Corporation from constructing the proposed toilet on 31.3.2014 pursuant to application CM 4381/2014 moved by the Petitioner as the SDMC swiftly commenced such construction despite contempt notices to it.

§   The Bench/Court has overlooked that it was AFTER such restraining order and AFTER the SDMC showed the Court pictures of it cleaning the vending sites (Pg 311 – para 7 of its affidavit dtd April 2014 with pictures 330-336 among others), that the Court passed Order dtd 16.4.2014, with CM 4381/2014 kept pending and directed Petitioner’s counsel and SDMC to evolve a strategy of cooperation to keep the Mandi clean. A CCTV was also suggested by the Court for the consideration of the SDMC.

§   The Bench/Court has overlooked that pursuant to this, the Petitioner filed a strategy for maintaining cleanliness in Harkesh Nagar Sabzi Mandi on 29.4.2014 (Pgs 350-383) and CD of photographs after site visit for the same on 29.4.2014 filed on 6.5.2014 (Pgs 384-399) to provide inputs for concrete strategy and its implementation.

§   The Bench/Court has overlooked that the SDMC had not proposed any strategy  for maintaining cleanliness despite the pictures filed by the Petitioner showing how filthy the place continues to be (Pg 384-399). It may be noted at this juncture that the picture filed on a page such as Pg 385 does not have the Petitioner’s vending shop but has the local mandir and some structures on adjoining land. The purpose as already recorded in the photographs is to show the garbage and scrap strewn in nearby adjoining gallis.

§   The Bench, after a short hearing on one date, the date of 7.5.2013 without a chance to go through the case and records, terminated the proceedings and reserved judgment.

§   Consequent Injustice

                               i.    The Court has, after one short hearing, wrongly dismissed the contempt petition wherein a previous Bench of the Chief Justice had issued notice to 38 persons based on two detailed hearings as mentioned above – one on 5.3.2013 and the other on 12.3.2013.

                              ii.    The message that the Judgment has sent out to the Respondents is that such willful flouting of High Court restraining orders, misleading and misrepresenting before the Court, is possible with impunity.

                            iii.    The Petitioner-hawkers had successfully stopped paying bribes to the police and several others had also stopped this practice thanks to Order dtd 16.1.2013 passed by the High Court followed by the Supreme Court Judgment dtd 9.9.2013 (Contempt Petition – Pg 6 Paras 19, 20). However, the Police and SDMC have been swift to reinstate the racket of extortion on the strength of Judgment dtd 16.5.2014. The Police has now added even more hawkers having received the message that they can continue their extortion racket in collusion with the SDMC officials with impunity.

                            iv.    The Petitioner-hawkers are now receiving threats to their lives from the proposed contemnors including the tout for having dared to try and expose the racket of extortion.

Grounds for Review

A.           The grounds for review include the 13 errors apparent on the face of the record and other sufficient reasons for review that have resulted in a grave miscarriage of justice. Some of these are repeated below:

A1. Because Judgment dtd 16.5.2014 was passed after the matter was listed once before this Bench on 7.5.2014 without hearing the Petitioner on facts or merits.

A2. Because Judgment dtd 16.5.2014 is based on grave misconceptions of facts that the Petitioner hawkers are flouting court orders and the law based on a misleading CD recording filed by the police, which itself is at great variance with the Police’s own FIR and the Police and MCD’s affidavits. Because the said CD includes pictures which are not even the vendors’ dukaans or shops and include demolition of a structure which is not even at the vending site. Because these and other wrong pictures have inter alia, been relied upon the Court in passing its Judgment dtd 16.5.2014.

A3. Because Judgment dtd 16.5.2014 is also based on a grave misconception of the law by the Court wherein it has relied upon outdated definitions and modes of street vending that are overruled in favour of the National Street Vendors’ Policy 2009 by the Supreme Court Judgment dtd 9.9.2013. Because under this definition, street vending is not restricted to ‘open’ stationary vending as recorded in the Judgment, but also includes ‘cOVERED’ stationary vending too; the definition is expanded to include ‘implicit’ permission granted by authorities and does not rely upon the regressive system of insisting upon punitive municipal ‘challan-documents’ to prove the existence of vendors at a site. Because the said National Policy also provides for ‘protective covers’ to vendors and ‘refrigeration’ of foods, apart from other amenities that aim to make the work-environment conducive to hawkers and hawking. Because the National Policy and Supreme Court Judgment lay emphasis upon the right to a ‘due notice’ and repeated opportunities to clear genuine obstructions if any. Because all these have been overlooked by the Bench in passing Judgment dtd 16.5.2014.

A4. Because Judgment dtd 16.5.2014 has abruptly left unaddressed several larger reliefs sought including those of deliberate dumping of garbage by the SDMC, proper placement of toilet, the need for sensitization and corruption de-addiction of Police and SDMC officials, the inquiry sought to expose their extortion racket.

A5. Because Judgment dtd 16.5.2014 could not have been passed dismissing the entire writ petition and contempt case even if there were flouting by one or more street vendors (which flouting has not taken place intentionally at any rate). Because in that case, the individual cases of flouting would have been required to be segregated and duly proceeded with. Because flouting by individual beneficiaries cannot be a basis for dismissal of an entire writ petition dealing with the larger causes stated above.

B.                                B1.  Because Judgment dtd 16.5.2014 goes against the tenor and spirit of the National Street Vendors’ Policy as well as Supreme Court Judgment dtd 9.9.2013 as well, and several orders of the Delhi High Court passed by two prior benches of Chief Justices of the Delhi High Court. Because Judgment dtd 16.5.2014 has undone the progressive and protective measures to the urban poor by past High Court orders.

B2. Because due to the non-implementation of the National Policy and other laws for several years together, the NCTD Special Provisions Act, 2011 Ordinance extended till End 2014, protects street vendors hawkers from punitive action. Thus the MCD and Police could not have removed any hawker/street vendor, as per this Ordinance too if not in accordance with the National Policy AND for a specific public project (Main Writ file, Pg 132-134, 139-144).

C.                                 Because Judgment dtd 16.5.2014 deserves to be reviewed and recalled as it has been passed overlooking several documents on the record of the case, which has resulted in grossly wrong conclusions regarding facts and the law, and raised serious questions regarding the Petitioner-hawkers’ bona fides, honesty, diligence and dignity, causing enormous damage to their reputation and dignity.

D.                                 Because Judgment dtd 16.5.2014 is a case where there is such grave miscarriage of justice that the Petitioner fears that it would shake the confidence of the public in obtaining justice. For, it is a long-settled principle that justice must not only be done but also seen to be done.

E.                                 Because Judgment dtd 16.5.2014 has sent out the message to the proposed contemnors that they can get away with flouting court orders relating to the vulnerable poor, and that their unlawful actions against them is acceptable. The police and SDMC have already re-established their extortion racket that was so painstakingly set to nought by the Petitioner and Petitioner-hawkers supported by the Court through its prior orders. Because those orders were much-needed to curtail the brutal and demeaning extortion by the officials.

F.                                 Because Judgment dtd 16.5.2014 overlooks that the action dtd 26.2.2014 by the SDMC and Police was behind its back overreaching its restraining order dtd 16.1.2013, even while the matter was sub judice before it. Had there really been violations by the Petitioner-hawkers why did the SDMC not bring that to the notice of this Court? The Court would have taken necessary action. Instead, the SDMC and Police did not come before the Court but merely justified their unlawful actions through false defence and allegations against the Petitioner-hawkers.

G.                                Because unless Judgment dtd 16.5.2014 is recalled and Writ Petition WP(C) 144/2013 is restored, grave hardship and injustice would be caused to the Petitioner-hawkers for the reasons and grounds cited above. Because unless Judgment dtd 16.5.2014 is recalled and Contempt Petition, Cont Cas 176/2014 restored, the officials of the SDMC/MCD, the Delhi Police, the SDMC Councillor and the tout would be allowed to continue their reign of extortion and terror unchecked by the Court. Because senior officials would continue to evade their responsibility in keeping their junior officials in check.

H.                                Because the Review Petitioner has not filed a Petition for Review of the Order sought to be reviewed, neither has it appealed the said Judgment dtd 16.5.2014.

I.                                   Because no new facts have been urged in this Review Petition and no new documents relied upon. The only new fact is the renewed extortion racket by the Police and SDMC AFTER this Court’s Judgment dtd 16.5.2014.

J.                                  Because this case is fit for review.

PRAYER

It is, therefore, prayed that this Court:

A.           Allow this Review Petition against the Judgment of this Court dated 16.5.2014 passed in WP(C) 144/2013.

B.           Pass any other or further order/s as this Court may deem fit and proper in the facts and circumstances of the case.

                                         THROUGH

COUNSEL FOR PETITIONER

Place:  new delhi                        indiraUnninayar (Advocate)

DATE:  15.07.2014                   KIRAT RANDHAWA (ADVOCATE)

NARAYAN KRISHAN (ADVOCATE)

ORDER dated 26.9.2014

IN THE HIGH COURT OF DELHI AT NEW DELHI

CONT.CAS(C) 176/2014

DELHI SHRAMIK SANGATHAN                                      ….. Petitioner

Represented by: Ms.Indira Unninayar, Advocate with
Ms.Kirat Randhawa and Mr.Narayan Krishna, Advocates

versus

MANISH GUPTA AND ORS                                            ….. Respondents

Represented by: Ms.Khushboo Tyagi, Advocate for
Mr.Gaurang Kanth, Advocate for  MCD

W.P.(C) 144/2013

DELHI SHRAMIK SANGATHAN                                    ….. Petitioner

Represented by: Ms.Indira Unninayar, Advocate with Ms.Kirat Randhawa and Mr.Narayan Krishna, Advocates

versus

DELHI POLICE AND ORS                                          ….. Respondents

Represented by: Ms.Khushboo Tyagi, Advocate for
Mr.Gaurang Kanth, Advocate for  MCD

CORAM:

HON?BLE MR. JUSTICE PRADEEP NANDRAJOG

HON?BLE MR. JUSTICE JAYANT NATH

O R D E R

26.09.2014

4CM No.10007/2014 in W.P.(C) No.144/2013

Allowed subject to just exceptions.

CM No.10008/2014 in W.P.(C) No.144/2013

For the reasons stated in the application the delay of 30 days in
filing the review petition is condoned.

The application is disposed of.

R.P.No.308/2014 in Cont.Cas.(C) No.176/2014

R.P.No.362/2014 in W.P.(C) No.144/2013

Dismissed.

CM No.10805/2014 in Cont.Cas.(C) No.176/2014

CM No.10006/2014 in W.P.(C) No.144/2013

Dismissed.

PRADEEP NANDRAJOG, J.

JAYANT NATH, J.

SEPTEMBER 26, 2014