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TMI Blog1988 (9) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... and the writ petition filed by the respondent in the High Court is dismissed. - Civil Appeal No. 3189/1989. - - - Dated:- 12-9-1988 - Sen, A. P. , Venkataramiah, E. S. And Ray, B. C. ,JJ. R. B. Datar and Ranjit Kumar for the Appellant. V.B. Saharya for the D.D.A. Jose P. Verghese and O.P. Verma for the Respondent. JUDGMENT The main question involved in this appeal from a judgment and order of a Division Bench of the Delhi High Court dated March 11, 1987 is whether the High Court was justified, in the facts and circumstances of the case, 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. The issue involved is as to the precedential value of a direction earlier made by this Court on a petition under Art. 32 of the Constitution based on consent of the parties with the reservation that it should not be treated as a precedent. It appears that sometime in 1984, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 of the Act on tehbazari basis to use the pavement in front of the main gate of the Irwin Hospital for carrying on their business on specific terms and conditions, such grant of licence or permission gave to them a right under s. 430 of the Delhi Municipal Corporation Act, 1957 which could not be terminated unilaterally without affording them an opportunity of a hearing under proviso (a) to sub-s. (3) of s. 430 of the Act. On February 24, 1984, Shri B.P. Bhalla, learned counsel appearing for the plaintiffs in all the suits made a statement to the effect: "The plaintiffs shall occupy only 6 ft. x 4 ft. space as allotted to them by the defendants and no further space beyond those limits. They have not constructed any permanent structure on the site and shall not construct any structure thereon, whether permanent or temporary.'' Accordingly, the learned Subordinate Judge during the course of his judgmeat observed: "In view of the above statement by the counsel for plaintiffs, it is clear that the stall if any erected or posted at the suit sites is without authority. Placing of such a stall at the suit site amounts to encroachment within the meaning of sec. 322 of the DMC Act w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ft. x 4 ft. on the basis of tehbazari licence intermittently since the year 1960 and had been paying the licence fee therefor. The decree passed by the learned Subordinate Judge not having been appealed from by the Municipal Corporation of Delhi has since become final. The rights of the parties therefore stand crystallized by the terms of th decree passed by the learned Subordinate Judge. There was a further development. Two of the squatters, namely, one Jamna Das and his brother moved this Court by petition under Art. 32 of the Constitution, being Writ Petition Nos. 981-82/84 Jamna Das Anr. v. Delhi Administration Ors., seeking a writ in the nature of mandamus ordaining the Municipal Corporation to allot each of them a suitable site on the pavement in front of the main gate of the Irwin Hospital. Their grievance was that they were similarly situate like 10 other squatters who were all plying their trade on the pavement in front of the main gate of the Irwin Hospital catering to the needs of the visitors to the hospital by selling tea, snacks, pan, bidi etc. and although the Municipal Corporation had rehabilitated the said 10 squatters by allotment of stalls to them, despite re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bordinate Judge which was a judgment inter partes had become final, not having been appealed from and therefore the respondent could not be removed from pitching her stall on the pavement outside the main OPD gate of the Irwin Hospital where she was squatting. The learned Judges relied upon the decision of this Court in Jamna Das case where a direction was made requiring the Municipal Corporation to construct stall for the petitioners in that case, so that they could be rehabilitated. The learned Judges felt that it was equally desirable that the respondent Gurnam Kaur instead of being allowed to squat on the pavement, should be provided with a stall of the same pattern and design as had been done for the two squatters in Jamna Das case. The High Court gave an option to the Municipal Corporation either to construct a stall similar to the one they had constructed in compliance with the direction made by this Court in Jamna Das' case or, in the alternative, furnish to the respondent a plan of the stall with requisite permission so that she could build her own stall accordingly. We find it rather difficult to sustain the judgment of the High Court. The learned Judges failed to appre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar direction must or ought to be made as a measure of social justice. That being so, the direction made by this Court in Jamna Das' case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das'case was made not only with the consent of the parties but there was an interplay of various factors and the Court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. The Court no doubt made incidental observation to the Directive Principles of State Policy enshrined in Art. 38(2) of the Constitution and said: "Article 38(2) of the Constitution mandates the State to strive to minimise, amongst others, the inequalities in facilities and opportunities amongst individuals. One who tries to survive by one's own labour has to be encouraged because for want of opportunity destitution may disturb the conscience of the society. Here are persons carrying on some paltry trade in an open space in the scorching heat of Delhi sun freezing cold or torrential rain. They are being denied continuance at that place under the specious plea that they constitute an obstruction to easy access to hos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio. In Gerard v. Worth of Paris Ltd. (k)., [1936] 2 All E.R. 905 (C.A.), the only point argued was on the question of priority of the claimant's debt, and, on this argument being heard, the Court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith, Ltd., [1941] 1 KB 675. the Court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. We went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided "without argument, without reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision was in the nature of a reasonable restriction in the interests of the general public, on the exercise of the right of hawkers to carry on their trade or business. The learned Chief Justice added: "No one has any right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public. Public streets are meant for the use of the general public and cannot be used to facilitate the carrying on of private trade or business." These cases undoubtedly raise a human problem and both the Delhi Development Authority as well as the Municipal Corporation of Delhi should seek to evolve an innovative plan to rehabilitate the unfortunate persons who by force of circumstances are forced to ply their trade by squatting in the open on the pavements. At the same time, these pavement- squatters create a serious problem to the civic administration as it creates congestion on the public streets and obstructs free flow of traffic. As Chandrachud, CJ. rightly observed in Bombay Hawkers' Union: "No one has a right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public", and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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