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Friday, July 31, 2015

Notwithstanding the constitutional right of a citizen to carry on business but such right is subject to certain restrictions. I cannot be disputed that there are certain areas which may be required to keep free of such types of kiosks for security reasons. The Court cannot direct the administration to allow such a kiosk even if there is a threat to safety and security. On the one hand, appellant has a right to earn his livelihood, but on the other hand there is serious issue of safety and security of the premises near the Supreme Court compound. Hence, the Court has to balance between the two. The purpose involving general interest of community as opposed to the interest of individual directly or indirectly has to be balanced. Merely because of the contention of the appellant and the respondents that after the bomb blasts took place in Delhi High Court compound in 2011, no such incident happened till date, it cannot be presumed that such incident will not happen in a near future. The Court cannot assume and presume that there is no threat to the safety and security of the Supreme Court and its vicinity and allow the appellant to continue the said business.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                       Civil Appeal No.5779    of 2015
                 [arising out of S.L.P.(C)No. 3632 of 2015]

Dharam Chand                                       …..Appellant(s)

                                   versus

Chairman,
New Delhi Municipal Council and others  …..Respondent(s)








                                  JUDGMENT

M. Y. EQBAL, J.

      Leave granted.

2.    This appeal by special leave is directed against  the  judgment  dated
13.11.2014 of the Division Bench of the Delhi High  Court,  which  dismissed
the Letters Patent Appeal preferred by the appellant  against  the  decision
of learned Single Judge of the High Court, which dismissed  the  appellant’s
writ  petition  challenging  the  order  dated  03.12.2013  issued  by   the
Enforcement Department, New  Delhi  Municipal  Council  (NDMC)  deciding  to
relocate the appellant (a squatter) from his existing site  outside  Supreme
Court to a site near Gate of Baroda House adjacent to  the  existing  stalls
due to security reasons.

 3.   The appellant’s case in brief is that since 1965 he was  squatting  in
the area of  Chandni  Chowk  as  a  Hawker  selling  cloths  and  thereafter
Tehbazari of selling tea was given by the NDMC to him at  Bhagwan  Das  Road
and he remained there till 1982, when he was shifted to  the  present  place
opposite to the Supreme Court.  In 1989, a large number  of  writ  petitions
claiming a right to trade on the pavements in different parts of Delhi  were
filed under Article 32 of the Constitution and the Apex  Court  appointed  a
Committee known as Thareja Committee to  examine  the  claims  made  by  the
squatters in the light of Scheme prepared by the NDMC and  the  decision  in
Sodan Singh vs. New  Delhi  Municipal  Corporation,  (1989)  4  SCC  155  to
identify street pavement in different areas where the street  hawking  could
be  regulated  without  being  a  hindrance  to  general  public.   On   the
application of the appellant before the Thareja Committee, in May, 1999,  he
had been allotted one stall bearing size 6’ x 4’,  opposite  Supreme  Court,
towards Bhagwan Das Road and near Office Complex of  Supreme  Court  Lawyers
and Purana Quila Road Bungalows  in  May,  1999  by  Director  (Enforcement)
NDMC, New Delhi.



4.    In September, 2011, an order was  issued  by  Enforcement  Department,
NDMC, for temporary suspension of various Tehbazari holders,  including  the
appellant, for security reasons.   The appellant’s business from  his  Kiosk
remained unaffected.  However, one Laxmi Narain Tiwari, who was  allotted  a
squatting site next to the C-Gate of the Supreme  Court  of  India  and  was
removed, moved the High Court for either restoration  of  his  site  or  his
rehabilitation.  On the stand taken by  learned  counsel  for  NDMC  that  a
fresh site would be allotted to the writ petitioner Laxmi Narain,  his  writ
petition was disposed of.



5.    Appellant herein contended that order dated  12th  December,  2012  in
Laxmi Narain Tiwari vs. New Delhi Municipal Corporation, W.P.(C) No.6876  of
2012 had no bearing on the appellant’s case and the respondent  has  wrongly
and without any basis  has  passed  the  following  relocation  order  dated
3.12.2013:

“The Hon’ble High Court in the case of “Laxmi Narain vs. NDMC &  Ors.”  have
directed the local  authorities to allot a fresh  site  to  the  petitioners
within a period of six weeks from  today  who  were  squatting  outside  the
Supreme Court of India and due to security reasons, they were  removed  from
the said site.  Now, it has been decided to relocate the following  verified
squatters from their existing sites to the following sites:-

|S.No|Name          |Existing|Allotte|Option Sites     |
|.   |              |Trade   |d Area |                 |
|             xxxx                xxxx                |
|xxxx                                                 |
|5.  |Sh. Dharam    |Paan    |6’x4’  |209-Site near the|
|    |Chand, S/o Sh.|Biri    |       |gate of Baroda   |
|    |Trika Ram,    |Cigarett|       |House adjacent to|
|    |213-S-01      |e       |       |existing stalls. |
|    |(Stall)       |        |       |                 |


                                                         (emphasis supplied)





6.    It has been pleaded on behalf of the appellant that the allotment  was
in accordance with Article 39(a) of the Constitution and his right to  carry
on his trade and occupation from the kiosk allotted to him by  NDMC  on  the
basis of a  direction  by  Thareja  Committee  is  protected  under  Article
19(1)(g) of the Constitution.  It has been further pleaded  that  his  right
could never be restricted by an executive order and the said right could  be
curtailed or taken away under Article 19(6) of the Constitution  only  by  a
law enacted under Article 13 of the Constitution.




7.    It  is  the  appellant’s  case  that  he  has  been  carrying  on  his
trade/occupation on this very place since before 1982 and  regularly  paying
rent of the Kiosk allotted to him. The appellant over a long period of  time
has developed goodwill and a very strong  customer  base  and  his  shifting
from the present place of business for security reasons has  the  effect  of
taking away his customers and would be a restriction on his right to  trade,
profession  and  occupation  guaranteed  under  Article  19(1)(g)   of   the
Constitution.  The appellant relied upon  the  judgment  of  this  Court  in
Kharak Singh vs. State of U.P., (1964) 1 SCR 332, stating  that  therein  it
has been held as under:-





"Though learned counsel for the respondent  started  by  attempting  such  a
justification by invoking s. 12 of the Indian Police Act  he  gave  this  up
and conceded that the regulations contained in Ch. XX had no such  statutory
basis but were merely executive or departmental instructions framed for  the
guidance of the police officers. They would not therefore be "a  law"  which
the State is entitled to make under the relevant clauses 2 to 6 of  Art.  19
in order to  regulate  or  curtail  fundamental  rights  guaranteed  by  the
several sub- clauses of Art. 19(1); nor  would  the  same  be  "a  procedure
established by law" within Art. 12."








8.    Having heard learned counsel on either side, the learned Single  Judge
of the High Court dismissed the writ petition of the appellant. The  learned
Single Judge was of the view that under Section 388(D)(5) of the  New  Delhi
Municipal Council Act, 1994, the NDMC was  empowered  to  impose  terms  and
conditions while granting Tehbazari rights and the letter  dated  20th  May,
1999 by which Tehbazari/kiosk rights  had  been  granted  to  the  appellant
contained terms and conditions which read inter alia, that:


"1. Tehbazari permission shall be purely temporary and  on  month  to  month
basis.


xxxx xxxx xxxx xxxx


7. The permittee shall vacate the site in a peaceful manner and without  any
murmur on cancellation of the permission so granted on account of  violation
of the terms and conditions of the  grant  of  permission  or  any  security
reasons, or  any  other  circumstances  justifying  such  action  in  public
interest."




9.    The learned Single Judge was of the view that the order of  relocation
was issued due to security reasons, which was in  public  interest  and  the
aforesaid terms could never be said to be illegal  or  unconstitutional  and
the matters of security must be left to  the  wisdom  and  decision  of  the
police.



10.   Aggrieved by the decision  of  the  learned  Single  Judge,  appellant
preferred Letters Patent Appeal, which was also dismissed  by  the  Division
Bench of the High Court vide impugned order observing that  the  appellant's
relocation due to  security  reasons  was  in  terms  of  the  letter  dated
20.05.1999 which had granted Tehbazari rights to him.  He  has  no  absolute
right to hawk and the said  letter  itself  granted  only  a  temporary  and
terminable right to trade. Indeed, the appellant has a right  under  Article
19(1)(g) of the Constitution but undoubtedly it  is  subject  to  reasonable
restrictions under Article 19(6).  Hence, this appeal by special leave.




11.   We have heard learned counsel for the parties at  length  and  perused
the affidavit of the respondents.   It has been contended on behalf of  NDMC
that the decision to remove vendors from the vicinity of the  Supreme  Court
of India was taken in view of the bomb blast on the perimeter of  the  Delhi
High Court complex. It was noted  that  the  said  decision  to  remove  all
squatters, vendors and kiosk owners was  taken  in  a  meeting  attended  by
security experts.  The respondent contended that the appellant’s  kiosk  was
deemed as a security hazard by the Hon’ble Supreme Court Judge  and  it  was
on the basis of his directions answering respondent was duty  bound  as  the
civic body  of  the  area  to  remove  the  appellant  from  his  site.  The
fundamental rights guaranteed under  the  Constitution  of  India  are  also
subject to reasonable restrictions, and  keeping  the  security  and  public
order of any area, specially a  sensitive  area  as  the  Supreme  Court  of
India, is one such restriction, wherein if the  need  arises,  the  personal
liberties of citizens may be curbed or partially within  reasonable  limits,
restricted in the interest of peace, security and law and order.











12.   The respondent  referred  to  the  decision  of  the  Apex  Court   in
Maharashtra Ekta  Hawkers  Union  and  Another  vs.  Municipal  Corporation,
Greater Mumbai and Anr., (2014) 1  SCC 490, wherein  it  has  been  held  as
under:-

“8. In Maharashtra Ekta Hawkers Union v. Municipal Corpn.,  Greater  Mumbai,
(2004) 1 SCC  625,  which  was  decided  on  9-12-2003,  a  two-Judge  Bench
referred to the judgments in Olga Tellis v. Bombay  Municipal  Corpn.,(1985)
3 SCC 545, Sodan Singh v. New Delhi Municipal Committee,(1989)  4  SCC  155,
the recommendations  made  by  the  Committee  constituted  pursuant  to  an
earlier judgment and observed:
“10. The above authorities make it clear  that  the  hawkers  have  a  right
under Article 19(1)(g) of the Constitution of India.  This  right,  however,
is subject to reasonable restrictions under Article 19(6). Thus hawking  may
not be permitted where, e.g.  due  to  narrowness  of  road,  free  flow  of
traffic or movement  of  pedestrians  is  hindered  or  where  for  security
reasons an area is required to be kept free or  near  hospitals,  places  of
worship, etc. There is no fundamental right under Article  21  to  carry  on
any hawking  business.  There  is  also  no  right  to  do  hawking  at  any
particular place. The authorities also recognise the fact that  if  properly
regulated, the small traders can considerably add  to  the  convenience  and
comfort of the general public, by  making  available  ordinary  articles  of
everyday use for a comparatively lesser price. The scheme must keep in  mind
the above principles. So far as Mumbai is concerned, the scheme must  comply
with the conditions laid down in Bombay Hawkers’ Union case,  (1985)  3  SCC
528.   Those  conditions  have  become  final  and  there  is   no   changed
circumstance which necessitates any alteration.”

9. The Court then  enumerated  the  following  restrictions  and  conditions
subject to which the hawkers could do business in Mumbai: (Maharashtra  Ekta
Hawkers Union case,(2004) 1 SCC 625 at SCC pp. 635-37, para 14)
“(1) An area of 1 m × 1 m on one side of the footpath  wherever  they  exist
or on an extreme side  of  the  carriageway,  in  such  a  manner  that  the
vehicular and pedestrian traffic is not obstructed and access to  shops  and
residences is not blocked. We further clarify that  even  where  hawking  is
permitted, it can only be on one side of the footpath or road and  under  no
circumstances on both sides of the footpaths or roads. We, however,  clarify
that Aarey/Sarita stalls and sugarcane vendors  would  require  and  may  be
permitted an area of more than 1 m × 1 m but not more than 2 m × 1 m.
(2) Hawkers must not put up stalls or place any tables, stand or such  other
thing or erect any type of structure. They should also  not  use  handcarts.
However,  they  may  protect  their  goods  from  the  sun,  rain  or  wind.
Obviously, this condition would not apply to aarey/sarita stalls.
(3) There should be no hawking within 100 m from any place of worship,  holy
shrine, educational institutions and hospitals or  within  150  m  from  any
municipal or other markets or from any railway station. There should  be  no
hawking on footbridges  and  overbridges.  Further,  certain  areas  may  be
required to be kept free of hawkers for security reasons.  However,  outside
places of worship hawkers can be permitted to sell  items  required  by  the
devotees for offering to the deity or for placing in the  place  of  worship
e.g. flowers, sandalwood, candles, agarbattis, coconuts, etc.”





13.   On 10.4.2015, while considering the counter  affidavit  of  respondent
no.1 New Delhi Municipal Corporation, this court thought it  appropriate  to
obtain the stand of the Secretary General of the Supreme Court of  India  as
also the Deputy  Commissioner  of  Police,  dealing  with  security  of  the
Supreme Court of India.




14.   In pursuance of this Court's order,  the  Secretary  General,  Supreme
Court  of  India,  and  the  Deputy  Commissioner  of  Police  filed   their
respective affidavits, copies of which were served upon  the  appellant  and
the  respondents/intervenor.     In  the  affidavit  filed  by  the   Deputy
Commissioner of Police, Supreme Court Security, it has been submitted  inter
alia that it is only after the  bomb  blast  outside  Delhi  High  Court  on
07.09.2011, a meeting was called by the then  Chief  Justice  of  India  and
this Court on its administrative side, after deliberations  with  the  Delhi
Police, prohibited vendors to squat  along  the  perimeter  of  the  Supreme
Court. Similar affidavit has been filed by the  Secretary  General,  Supreme
Court of India, reiterating the same facts in  para  (2)  of  the  affidavit
about the incident which  took  place  in  2011  and,  thereafter,  security
arrangement was reviewed with the Delhi Police and a decision was  taken  on
the administrative side not to allow any  hawkers  near  the  Supreme  Court
premises.



15.   After considering the aforesaid affidavits, this Court  on  01.05.2015
directed  Secretary  General,  Supreme  Court  of  India  and   the   Deputy
Commissioner of Police, Supreme Court Security to inform this  Court  as  to
whether after 2011 any incident has been reported in and around the  Supreme
Court premises.  Deputy Commissioner  of  Police,  Supreme  Court  Security,
vide his affidavit dated 30th June, 2015 has submitted that  since  2011  no
such incident of bomb blast has taken place in and around the Supreme  Court
premises.  According to the  Affidavit,  DCP/New  Delhi  District  has  also
opined that keeping in view the movement of traffic and general public,  the
surroundings of the Hon’ble Court are always vulnerable. Paragraphs 3  to  5
of the Affidavit are, therefore, extracted herein below:

“3.   That the deponent states that since 2011  no  such  incident  of  bomb
blas has taken place in  an  around  the  Hon’ble  Supreme  Court  premises.
DCP/New Delhi District has also stated that  no  such  incident  took  place
after 2011.  DCP/New Delhi District has further stated that keeping in  view
the movement of traffic and general public the surroundings of  the  Hon’ble
Court are always vulnerable.
4.    That in the present security scenario and high  threat  perception  to
the various  vital  installations  and  institutions  including  the  higher
judiciary in the country, as such it is not in the interest of the  security
to allow any squatting on the pavements and area  around  Supreme  Court  of
India.
5.    That the existing arrangements of not allowing  any  squatter  on  the
pavements and adjacent area around the periphery of  Hon’ble  Supreme  Court
should be maintained and no change in  the  existing  arrangements  in  this
regard should be made so as not to adversely  affect  the  security  of  the
Hon’ble Supreme Court of India.”


16.   Secretary General of the Supreme Court of  India  has  also  submitted
that no incident with regard to bomb blast has been reported in  and  around
the Supreme Court of India after the bomb blast outside Delhi High Court  on
07.09.2011.



17.   We have heard learned counsel appearing  for  the  appellant  and  the
respondents on several dates.  On the final  date  of  hearing,  Mr.  Salman
Khurshid, learned senior  counsel  appearing  for  the  appellant  tried  to
convince us by showing a rough sketch map to the effect that  the  Kiosk  in
question  is  not  located  within  the  Supreme  Court  compound.   It  was
contended that after the Supreme  Court  compound  wall,  there  is  a  road
called Bhagwan Das Road.  After crossing the  road,  there  is  a  huge  car
parking and thereafter the building of Indian  Law  Institute  and  lawyers’
chambers are located.  Within that compound of  Indian  Law  Institute,  the
Kiosk in question is located and hence  the  question  of  security  of  the
Supreme Court because of the existence of that Kiosk is wholly unjustified.



18.   Mr. Dushyant Dave, President of the  Supreme  Court  Bar  Association,
submitted before us in support of the appellant.  Mr.  Dave  contended  that
there is no threat to the safety and security of the Supreme  Court  if  the
appellant carries  on  his  business.   On  the  other  hand,  Mr.  R.  Bala
Subramanian,  learned  counsel  appearing  for   the   Deputy   Commissioner
(Security)  produced  before  us  a  confidential  folder  containing   many
messages received by the Authority giving threat of  exploding  bomb  blasts
in different places.



19.   After giving our anxious consideration  in  the  matter,  although  we
have sympathy  for  the  appellant,  but  there  are  various  circumstances
justifying the refusal to permit the appellant to run his  business  in  the
kiosk in question. Notwithstanding the constitutional right of a citizen  to
carry on business but such right is  subject  to  certain  restrictions.  It
cannot be disputed that there are certain areas which  may  be  required  to
keep free of such types of kiosks for security reasons.   The  Court  cannot
direct the administration to allow such a kiosk even if there  is  a  threat
to safety and security.



20.   On the one hand, appellant has a right to earn his livelihood, but  on
the other hand there  is  serious  issue  of  safety  and  security  of  the
premises near the Supreme Court compound. Hence, the Court  has  to  balance
between the two.  The purpose involving general  interest  of  community  as
opposed to the interest of individual  directly  or  indirectly  has  to  be
balanced. Merely  because  of  the  contention  of  the  appellant  and  the
respondents that after the bomb  blasts  took  place  in  Delhi  High  Court
compound in 2011,  no  such  incident  happened  till  date,  it  cannot  be
presumed that such incident will not happen in a  near  future.   The  Court
cannot assume and presume  that  there  is  no  threat  to  the  safety  and
security of the Supreme Court and its vicinity and allow  the  appellant  to
continue the said business.

21.   We are therefore of the considered view that the order passed  by  the
High Court needs no interference by  this  Court.   Hence,  this  appeal  is
dismissed.

                                                              …………………………….J.
                                                                (M.Y. Eqbal)


                                                              …………………………….J.
                                                               (C. Nagappan)
New Delhi
July 29, 2015
















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