Intervener Submissions (17/05/05)

1. This hawker-market comprehensively violates the Master Plan:

• (a) It violate Master Plan policy for informal sector which, in line with Court orders for hawking zones to relieve public streets while protecting rights of hawkers, provides for integrating 3 to 4 lakh units in a planned way at various other sites that such hawker-markets on roads will spare for profitable misuse.
• (b) It violates / jeopardizes the Zonal Plan scheme for the area – a government housing colony – for which Zonal Plan requires: “…comprehensive redevelopment schemes with provision of community facilities within stipulated norms of MPD-2001 be prepared… Piecemeal approach for development without a comprehensive scheme is not to be sanctioned.”
• (c) It violates Plan norms for facilities – and the policy of hierarchy in development that they articulate so that no neighbourhood is burdened with facilities in excess of local needs. Local streets (12 or 20 m R/W) “are intended for neighbourhoods (or local use) from which through traffic is discouraged” and for 15000 population, norms permit about 100 informal units in all and maximum concentration of 22 at any one location, as follows:

  Facilities for 15000 population:

  Type - Nos | Informal units: at each > Total |

  Local Shopping Centre - 1 | 22 > 22

  Convenience Shopping Centre - 3 | 13 > 39

  Neighbourhood Park - 1 | 2 - 3 > 3

  Primary School - 3 | 3 - 4 > 12

  Secondary School - 2 | 5 - 6 > 12

  Residential pocket of 1000 - 15 | 1 > 15

• (d) It violates Layout Plan (procedure) requirements. The Master Plan requires layout plans to indicate use premises to operationalise the master plan / zonal plans. ‘Informal Sector Unit’, being a duly listed Use Premise (in Schedule to Development Code), has to be indicated / incorporated in approved Layout Plan under Clause-7 of the Code. Lack of clarity about mobile / stationery units also make the scheme short of Layout Plan (content) requirements arising from the Plan requirement about colourful and efficient design.
• (e) So-called temple housing so-called goddess would also be Use-Premise violation, as Informal Unit premise is for trade use

2. The scheme involves illegal licensing as follows:

• (a) s.14 of DD Act prohibits permitting use of land other than in conformity with Master / Zonal Plan, ie, it is not open to MCD or the NGO to permit hawking on the site in view of the foregoing.
• (b) s.21(1) of DD Act requires Authority or local authority to dispose off land (including, as per s.21(3), “by way of sale, exchange or lease or by the creation of any easement right or privilege”) according to Plan, ie, it is not open to MCD confer upon an NGO right or privilege for such scheme.
• (c) MCD is empowered u/s.481(E-5) to make byelaws in respect of “permission, regulation or prohibition of use or occupation of any street or place” for mobile or stationery hawking. This itself does not envisage NGO mediation, nor does Chopra Committee regime (that also did not identify the site for tehbazari). Having adopting Cabinet-approved National Policy by Resolution No.561 of 25/10/04, MCD cannot even frame byelaws for regulation by NGO since said policy calls for regulation by Ward Committees composed of “representatives of hawkers, planners, police, local councillors, RWAs, trader associations, municipal functionaries”.
• (d) Supreme Court order of 12/09/1988 in MCD v/s Gurnam Kaur prevents MCD from facilitating – or facilitating NGO to facilitate – private trade on public streets. This is even more so in view of MCD’s potential role under Master Plan Development Code Clause-3(7) and its powers to make byelaws under s.481(E5) in securing implementation of Master Plan scheme for 3-4 lakh hawkers in compliance of the suggestion in said Order.
• (e) Supreme Court orders to MCD in MC Mehta v/s UoI & Ors against licensing non-conforming use (industries) and its observation in judgment of 07/05/2004 in IA 22 therein: "… an association of small scale industries, has taken the stand …since the industries were working with the consent of the Government, it cannot be said that the use by industries is non-conforming. The stand is wholly misconceived. An illegality would not become a legality on inaction or connivance of the Government authorities." Just as non-conforming industries licensed by MCD were shut, an illegally licensed road-side hawker-market built around time of start of Manushi’s was demolished by MCD on 09/04/2005.

3. The scheme involves development / improvement works that can not have valid mandatory approvals, as follows:

• (a) The area in question is a development area with a duly notified Zonal Plan and s.12(3)(i) of DD Act prohibits any person or body (including of Government) from development in it without written permission of the Authority on application u/s.13, which the Authority – of which MCD Commissioner and 2 councillors are part – cannot give in view of s.6, s.14, s.29, 30, 31 and 34-A.
• (b) s.427 of MCD Act requires approval by the Corporation and sanction of Central Government for any improvement scheme, both prevented by s.429 requiring compliance with Master Plan / Zonal Plan. So-called approval by MCD Resolution of 09/11/02 was only for “new policy measures proposed” and not a scheme per se and subsequent Resolution of 25/10/04 adopting the National Policy precludes Corporation approval since the scheme is contrary to National Policy that calls for Plan provisions (citing Delhi Master Plan norms as illustration).
• (c) The scheme is a subdivision scheme to carve out use premises for (mobile and stationery) Informal Sector Units and ancillary marketplace uses and requires layout sanction under Clause-3(6) of Master Plan Development Code before incorporation in duly approved layout plan for the area as per Clause-7(2). The obfuscation about rehdis/platforms, R/W section, etc, and minutes of meetings recording perceptions (not measurements) apropos R/W improvement, etc, point to absence of an adequate layout plan, forget sanction after appropriate technical scrutiny.
• (d) MCD is empowered u/s.481(K1-4) to make bye-laws for improvement schemes, including for “local inquiries and other hearings that may be held before a scheme is framed, approved or sanctioned”. Public Notice is also mandatory u/s.11A of DD Act for Plan modification. The scheme, however, is underway without public scrutiny on arbitrary single-tender basis, a procedure that cannot have any valid approval / sanction.
• (e) MPLADS funds have been routed through MCD Commissioner for it, but the scheme does not comply with most MPLADS guidelines, not being for a durable asset and being arbitrarily executed. There is also no MPLADS WORK board on the site (and the NGO continues to claim favour of MCD work at its cost while MPLADS funds are public funds and this is no good work ).

4. This patently illegal scheme has been going on since 2001. Each hawker “contributes” each year over 6000/- towards license / cleaning / membership fees and more by way of challans for breaking NGO-made self-regulation rules, NGO-prescribed cult ceremonies, etc, and is to pay 30,000/- for NGO-designed rehdi / stall. For 150-160 hawkers this comes to about 50 lakhs for market-making and over 10 lakhs per year for fees, etc – without even being party to the MoU. For “facilitating” this (and thereby also sparing of planned hawking space for profitable misuse), the NGO has 25 + 10 lakhs from MPLADS and more from private fund-raising. This is the “model” being “piloted” for 4 years in one market for 150 and is now proposed in draft Master Plan 2021, with no other basis at all.

Authorities are fully seized of this drift (from correspondence from others since January 2001), continuing in incredible “bhagidaari” well documented in articles published by the NGO in its magazine that provide several significant facts that the pleadings seem to omit.

Supporting documents

01-02: MPD Informal Sector provisions (pp.17-18)

03-03: ZDP provisions for Government Housing Areas (p.11)

04-05: MPD provisions for hierarchy in urban development (pp.43-44)

06-06: MPD provisions for Local Streets (p.25)

07-07: MPD explication of relation between levels of plans (p.49)

08-09: MPD Development Code, Clause-7 (pp.50, 53)

10-11: MPD Schedule to Development Code (part, pp.93-94)

12-13: MCD v/s Gurnam Kaur, para-14

14-15: National Policy, 2004 (pp 4-5)

16-20: MPLADS Guidelines

21-27: Excerpt: SEWA-MoUD National Workshop (29-30/05/2001)

28-34: Articles published in MANUSHI - Issue 125 (July-Aug 2001)

35-35: Memorandum from Hawkers about PM Policy (Aug/Sep 2001)

36-37: Letter from former PM letter to PM (04/09/2001)

38-38: Letter from DDA in reply to PMO reference (19/10/2001)

39-40: Letters about presentation at CVC (28/11/2001; 19/12/2001)

41-45: Article published in MANUSHI - Issue 126 (Sep-Oct 2001)

46-56: Article published in MANUSHI - Issue 127 (Nov-Dec 2001)

57-59: Article published in MANUSHI - Issue 128 (Jan-Feb 2002)

60-60: Order: GoI (MoUD) constituting Drafting Committee (19/03/2002)

61-70: Article published in MANUSHI - Issue 130 (May-Jun 2002)

71-71: Letter from DDA about progress on identifying sites (10/06/2002)

72-79: Article published in MANUSHI - Issue 135 (Mar-Apr 2003)

80-80: Agenda: SEWA/NASVI arranged meet at GPF (16/06/2004)

81-88: Note: NCMP imperatives and opportunities (22/06/2004)

89-89: Letter from NASVI ‘acknowledging’ pro-hawker law (06/09/2004)

90-90: Reference from CVC (10/09/2004)

91-92: Resolution: National Commission on Informal Sector (20/09/2004)

93-94: PIB release: Meeting of National Commission (11/12/2004)

95-95: Letter to Police Commissioner (02/10/2004)

96-96: GNCTD forwarding (25/10/2004)

97-97: Letter to MCD Commissioner about model-market (16/10/2004)

98-98: GNCTD forwarding of suggestion for action plan

99-99: Letter to Secretary MoUD to stop MCD proposals (09/12/2004)

100-0: Letter to LG about reports of ‘proposed’ provisions (29/12/2004)

101-1: Agenda: NASVI meeting on Law (26-27/02/2005)

102-2: Letter to DDA VC wrt DMP2021 Public Notice (09/04/2005)

103-3: Request for public debate wrt Order in WP 6980/2002 (20/04/2005)