1988 (9) TMI 314 - SC - Indian Laws

Whether the High Court was justified in issuing a direction to the appellant Municipal Corporation of Delhi to construct a stall or a kiosk on the pavement near the OPD gate of the Irwin Hospital, Delhi within two months from the date of its order or in the alternative, to furnish a plan with requisite sanction to the respondent Gurnam kaur to enable her to construct a stall of her own? Held that - Appeal allowed. The authorities in devising a scheme must endeavour to achieve a twin object viz., to preserve and maintain the beauty and the grandeur of this great historic city of Delhi from an aesthetic point of view, by reducing congestion on the public streets and removing all encroachments which cause obstruction to the free flow of traffic, and rehabilitate those unfortunate persons who by force of circumstances, are made to ply their trade or business on pavements or public streets. In the result, the appeal must succeed and is allowed. The judgment and order passed by the High Court are set aside and the writ petition filed by the respondent in the High Court is dismissed.

Summary

Issues Involved:
1. Justification of the High Court's direction to the Municipal Corporation of Delhi regarding construction of a stall.
2. Precedential value of a previous Supreme Court direction based on consent of the parties.

Issue-wise Detailed Analysis:

1. Justification of the High Court's Direction to the Municipal Corporation of Delhi Regarding Construction of a Stall:
The primary issue in this appeal was whether the High Court was justified in directing the Municipal Corporation of Delhi (MCD) to construct a stall or kiosk near the OPD gate of the Irwin Hospital, or alternatively, to provide a plan for the respondent to construct it herself. The High Court's direction was based on a previous Supreme Court order in the case of Jamna Das, where a similar direction was issued for rehabilitation of squatters. However, the Supreme Court clarified that the direction in Jamna Das was made with the consent of parties and explicitly stated it should not be treated as a precedent.

The High Court failed to recognize that the previous direction in Jamna Das was not a binding precedent and that the respondent had no legally enforceable right to a similar direction. The High Court's direction contradicted sections 320 and 322 of the Delhi Municipal Corporation Act, 1957, which prohibit illegal encroachments on public streets and authorize the Commissioner to remove such encroachments. The Supreme Court emphasized that public streets are meant for general public use and cannot be used for private trade or business, which causes obstruction and congestion.

2. Precedential Value of a Previous Supreme Court Direction Based on Consent of the Parties:
The Supreme Court highlighted that directions or orders made by consent of the parties do not constitute adjudication on the rights of the parties and do not establish legal principles. Such directions are not binding precedents. The Court explained the concept of ratio decidendi and obiter dicta, stating that only the principle upon which a case is decided is binding as authority. The direction in Jamna Das was made to mitigate hardship and was not intended to set a legal precedent. The High Court's reliance on this direction was therefore misplaced.

The Supreme Court also discussed the doctrine of precedents sub silentio, where a point of law not argued or considered by the court does not establish a binding precedent. The direction in Jamna Das was given without argument or reference to the relevant statutory provisions, and thus could not be considered authoritative.

The Supreme Court rejected the respondent's attempt to invoke the principles from Olga Tellis and Bombay Hawkers' Union, which dealt with the right to livelihood under Article 21 of the Constitution. These arguments were not raised in the writ petition before the High Court, and the rights of the parties were already crystallized by the judgment of the Subordinate Judge, which had become final.

Conclusion:
The Supreme Court allowed the appeal, setting aside the High Court's judgment and order. The Court directed the Municipal Corporation of Delhi to act in conformity with the judgment of the Subordinate Judge, which had become final. The appeal was allowed with no costs.