SH. DHARAM CHAND Vs. CHAIRMAN, NDMC & ORS

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 5779 of 2015, Judgment Date: Jul 29, 2015

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:-

(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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