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Prakash and ors. Vs. Municipal Corporation of Delhi - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 275 of 1970
Reported inILR1971Delhi811
ActsConstitution of India - Article 19(1); Delhi Municipal Corporation Act, 1957 - Sections 321
AppellantPrakash and ors.
RespondentMunicipal Corporation of Delhi
Advocates: A.K. Gupta and; K.K. Raizada, Advs
Cases ReferredMohd. Fariik v. State of Madhya Pradesh and
.....and vegetables on refines in public streets --restriction is pre-eminently reasonable --delhi municipal corporation act (1957), section 321 & 420 --vires of.; the petitioners were carrying on the business of selling fruits and vegetables on rehires (hand carts) in public streets in delhi. they applied to the municipal corporation for giant of licenses for the purpose. the licenses were refused. it is contended by the petitioners that sections 321 and 420 of delhi municipal corporation act contravened articles 14 and 19(1) (g) because these sections conferred unguided and unabridged powers on the commissioner to grant or refuse the licenses and the requisite permission to carry on their trade on rehires and secondly because the provisions of these sections imposed regard to number of 'rehires' the resolution stated that not more than the present number of rehires licensed in the areas of erstwhile municipal committee of delhi as it existed in 1952 be renewed and steps be taken to eliminate the plying of unlicensed 'rehires' henceforth. it also fixed the actual number of 'rehires' plying in certain areas. it further fixed the number of licenses to be issued in respect of 'rehires' in the) particular areas mentioned in clauses (b) and (c) of item no. 21 under the heading: number of rehires and general conditions. in regard to the allotment of site the corporation decided that as far as possible suitable specific sites be allotted in all the areas to the licensed 'rehriwalas' and they should not be removed from the present sites until.....

S.N. Shankar, J.

(1) This order will dispose of Civil Writ petition Nos. 275/70 and 235/70. The petitioners in these cases have challenged the virus of section 321, 322 and 420 of the Delhi Municipal Corporation Act, 1957 (hereinafter called 'the Act'). The questions involved in all the petitions being the same they have been argued together by Shri A. K. Gupta, learned counsel for all the petitioners.

(2) For purposes of decision, facts in civil writ 275 of 1970 were referred to and it will be sufficient to state them briefly :

(3) The petitioners in this writ petition carried on business of selling vegetables and fruits by carrying them on 'rehires' (hand-carts) in Tilak Nagar area. Section 420 of the Act provides that no person shall, without or otherwise than in conformity with the terms of a license granted to him by the Commissioner expose for sale in any place any article whatsoever. According to section 321 of the Act, no person except with the permission of the Commissioner and on payment of the requisite fee place or deposit upon any street any stall, chair, bench, box, ladder, bale or other things whatsoever so as to form obstruction thereto and encroachment thereon. According to Section 322, the Commissioner is empowered, without notice, to cause the obstruction to be removed. The petitioners along with some other persons who carried on the same trade in Tilak Nagar formed a Union in 1955, known as 'Rehre Union'. This Union, on behalf of its members, applied to the Corporation for the issue of licenses to its members under Section 420 of the Act. The Corporation, in the year 1959, issued licenses to 57 persons out of 100 members of the Union. The petitioners claim to be amongst the members who were not granted licenses. They, however, continued to ply their 'rehires' without license. In the year 1968, along with others, they formed another registered Union called 'rehrie patri union'. By letter dated May 2, 1968, the new Union applied to the Corporation for allotment of sites for stalls or in the alternative 'for allotment of space on 'tehbazari' basis in Tilak Nagar to its members and also sent a letter to the Vigilance Officer of the Municipal Corporation of Delhi alleging favoritism on the part of the Corporation in withholding licenses to them. The Corporation in the same year allotted 56 stalls to the license holders of the 'rehires' to whom licenses had already been granted in 1959. In reply to the application of the new Union, by a letter dated June Ii, 1968, the Zonal Commissioner informed the President of this Union that no further licenses could be issued nor could any further allotment of sites be made to the other persons who were unauthorised 'rehriewalas'. Representation, thereafter, proved of no avail and the petitioners were informed that the Corporation as a policy was not issuing licenses to 'rehriewalas'. In these circumstances. they have come up to this Court challenging the virus of the above sections on the ground that the same are ultra virus of Art. 19(1)(g) and Art. 14 of the Constitution. At the time of arguments, the attack was confined to section 321 and 420 only because Section 322 was in the nature of consequential power vested in the Commissioner. Section 321 reads as under :

'321. (1) No person shall, except with the permission of the Commissioner and on payment of such fee as he in each case thinks fit, place or deposit upon any street, or upon any open channel, drain or well in any street or upon any public place any stall, chair, bench, box, ladder, bale or other thing whatsoever so as to form an obstruction thereto or encroachment thereon. (2) Nothing in sub-section (1) applies to building materials.' Section 420 is in the following terms : '420. No person shall, without or otherwise than in conformity with the terms of a license granted by the Commissioner in this behalf,- (a) hawk or expose for sale in any place any article whatsoever whether it be for human consumption or not; (b) use in any place his skill in any handicraft or for rendering services to and for the convenience of the public for the purposes of gain or making a living.'

(4) Dealing with the challenge under Art. 19(1)(g) to both these sections it is to be observed that the protection to right to practice any occupation, trade or business guaranteed by the sub-clause is subject to the restriction in clause (6) of this very Article. It provides that nothing in sub-clause (g) shall prevent the State from making any law imposing in the interest of general public reasonable restrictions on the exercise of the rights conferred by this sub-clause. In the instant case, we are concerned with the trade of selling of vegetables and fruits, not in the normal manner but on 'rehires' on a street. Both sections 420 as well as S. 321 prohibit the doing of things or acts mentioned therein on streets. Streets are primarily meant to provide passage. They have to be kept clear for the use for which they are meant and the Corporation is specifically charged by the Act as shown hereafter with a duty to do so. Assuming, thereforee, that the business for which the license is required under section 420 or the things for the placing of which permission is required under section 321 are fundamental rights the restrictions imposed by these two sections are' pre-eminently reasonable and in public interest and cannot be assailed as infringing Art. 19(1)(g) of the Constitution.

(5) I say assuming the right to ply the 'rehires' or hand-carts and to place things etc. on public streets to be a fundamental right because there is in my opinion no fundamental right of this nature envisaged in the Constitution to be vested in any one. While dealing with the case of sale of cooked food on public streets in Pyare Lal etc. v. New Delhi Municipal Committee and another : [1967]3SCR747 . Mitter J. speaking for the Court observed as under on page 138 of the report:

'IT appears to us that this series of litigation was the result of the N.D.M.C. allowing trade of a kind on public streets which it should have never allowed. Out of sympathy for them the N.D.M.C. had permitted the continuance of the trade for a long time. But no exception can be taken to their exercise of power under section 173 of the Punjab Municipal Act to eradicate the evil. After all every person has a right to pass and re-pass along a public street. He cannot be heard to say that he has a fundamental right to carry on street trading and particularly in a manner which is bound to create insanitary and unhygienic conditions in the neighborhood.'

(6) Section 420 and 321 of the Act. thereforee, cannot be. said to contravene Art. 19(1)(g) of the Constitution The learned counsel then. urged that these sections conferred unguided and unbridled powers on the Commissioner to grant or refuse the license envisaged in section. 420 and the permission referred to in section 321. This contention can also not be sustained. Guidance is provided to the Commissioner in this regard by the provisions of the Act itself. The Act was promulgated to consolidate and amend the law relating to the Municipal governance of Delhi. By Section 41 of the Act, the Corporation was vested with the power to carry on the municipal government. Section 42 enumerated the obligatory functions of the Corporation. Clause (c) of Section 42 enjoined upon it the responsibility to take necessary measures for the scavenging, removal and disposal of filth, rubbish and other abnoxious or polluted matters. Clause (e) imposed on it a duty to take precautioas, amongst others, for the abatement of nuisances. By clause (n) the maintenance and improvement of the public streets was made its obligatory function and clause (p) authorised it to remove obstruction in or upon streets and other public places. Section 43 of the Act then further prescribed the discretionary functions of the Corporation. Clause (za) of this section authorised it to take measures to promote public safety, health, convenience or general welfare. Section 481(L)(5) specifically vested in the Corporation the authority to make bye-laws, amongst others, for thetas and 'rehires' etc. used for hawking articles. According to Section 59 of the Act, the executive power for the purpose of carrying out the provisions of the Act was vested in the Commissioner. Guidance to the Commissioner for the discharge of his functions under Sections 420 and 321 of the Act was thus furnished by the above provisions of the Act. He could not grant any license or give any permission in disregard of the above obligations. Reference in this connection may be made to Civil Writ 915 of 1969-Mis. Om Parkash Sehgal & Co. v. Municipal Corporation of Delhi decided by Tatachari J. on 4th May, 1970. Tn that case. a similar question arose with reference to Section 417 of the Act which provided that no person shall use or permit to be used any premises for any of the purposes mentioned therein without or otherwise than in conformity with the license granted by the Commissioner in this behalf. The argument raised was that this provision vested absolute and arbitrary powers without laving down anv guide-lines or criteria for the exercise of these powers; but the contention was reopened on the ground that the preamble of the Act and the relevant provisions thereof furnished sufficient guide-line.

(7) Reliance was also placed by Shri K. K. Raizada, appearing for the respondent on Municipal Corporation to Delhi v. Birla Cotton Shoinning and Weaving Mills, Delhi and another : [1968]3SCR251 where virus of Section 150 of the Act were attacked on similar grounds. This section dealt with imposition of certain taxes and provided that the Corporation may, at a meeting, pass a resolution for the levy of any of the taxes specified in sub-section (2) of section 133, defining the maximum rate of the tax to be levied, the class or classes of persons or the description or descriptions of articles and properties to be taxed, the system of assessment to be adopted and the exemptions, if any, to be granted. It was urged that the section suffered from the vice of excessive delegation and conferred unguided discretion. The contention was repelled and it was held that where the legislative policy was enunciated with sufficient clearness or a standard was laid down the Courts should not interfere. The fact that the delegation had been made to an elective body responsible to the people including those who paid taxes and the fact that the Corporation had been assigned certain obligatory functions which it must perform and for which it must find money by taxation together with the obligation of the Corporation to adopt budget estimates each year as laid down in Section 109 of the Act showing the revenue and expenditure which must balance so that the limit of taxation cannot exceed the need were held in that case to provide sufficient guide-line for the exercise of powers under section 150 of the Act. The same considerations apply here. The provisions that have been indicated above do furnish the guide-line to the Commissioner to enable him to discharge his duties under sections 420 and 321 of the Act.

(8) Before proceeding further in the matter it will be appropriate to notice certain other relevant facts that were pointed out at the time of arguments. They are the bye-laws framed under section 188(t) of the Punjab Municipal Act, 1911. Section 516 of the present Act repealed the Punjab Municipal Act, 1911, as in force in Delhi immediately before the coming into force of this Act. Under powers conferred by clause (t) of section 188 of the repealed Act, the Municipal Committee was entitled to frame bye-laws concerning the grant of licenses, necessary for 'rehires' (hand-carts) employed for transporting or hawking articles for sale. Certain bye-laws were framed by the Committee in pursuance of these powers. 'The relevant bye-laws read as under :

'1.Hand cart in these bye-laws means a hand cart of any description used for selling and exposing for sale articles by hawking and includes a 'rehri', cycle and tricycle. 2. No person shall use a hand cart for hawking articles for sale within the limits of the Delhi Municipal Committee except under a separate license for each hand cart granted in this behalf by the Committee in the form appended. The Committee reserves to itself the right to exclude any hawker's hand card from any area. The beats of each hand cart so licensed shall be fixed by the licensing officer appointed by the Committee in that behalf and no hand cart shall be taken to any area which is not included in its beat. 3. A license to use a hand cart for hawking articles for sale shall be issued by an officer appointed in this behalf by the Committee and on the application in writing of the proprietor of the Cart. At the time of the issue of the license a metal 'number plate shall be given to the proprietor of the cart on payment of a charge of six annas to be affixed to the cart. provided that if the number plate is renewed its cost (six annas) shall be paid by the licensee. 4.................................. 5.......................... 6.................................. 7................................ 8. Only a limited number of hand carts shall be licensed each year and the grant of a license shall be at the discretion of the Committee or of its Secretary, 10................................ 11.................................. Sub-section (21 of section 516 of the present Act provides that notwithstanding the repeal of the Punjab Municipal Act the bye-laws made or issued under the repealed Act shall, in so far as they are inconsistent with the provisions of the present Act, continue in force and deemed to have been made, issued, or granted under the provisions of this Act. unless superseded. The bye-laws above referred have not been superseded. They. thereforee still continue and govern the licensing of 'rehires' according to the respondent.

(9) The respondent has also produced on record a copy of Resolution No. 21 of the April meeting dated May 4, 1959 (Annexure DA). It lays down the general policy of the Corporation in this respect. The Corporation under the heading 'Central Policy' has resolved in this resolution that in view of the growing congestion on roads, the Committee generally approved the policy of gradual elimination of 'rehires' as was being done by the ex-Delhi Municipal Committee, as also the policy of declaration of certain main and congested bazars and roads as prohibited areas for the plying of 'rehires'. It was also decided by this resolution that a list of prohibited roads and-streets be prepared and submitted to the Corporation at the earliest covering the entire urban area of the Corporation. In regard to number of 'rehires' the resolution stated that not more than the present number of rehires licensed in the areas of erstwhile Municipal Committee of Delhi as it existed in 1952 be renewed and steps be taken to eliminate the plying of unlicensed 'rehires' henceforth. It also fixed the actual number of 'rehires' plying in certain areas. It further fixed the number of licenses to be issued in respect of 'rehires' in the) particular areas mentioned in clauses (b) and (c) of item No. 21 under the heading: Number of rehires and General Conditions. In regard to the allotment of site the Corporation decided that as far as possible suitable specific sites be allotted in all the areas to the licensed 'rehriwalas' and they should not be removed from the present sites until alternative accomodation was provided to them. There are thus specific bye-laws in regard to the grant of licenses to ply 'rehires'. It is unfortunate that they seem to have been lying hurried in the archives of the Corporation and were produced only in Court so that the petitioner has a valid grievance that these bye-laws were not made available to him by the Corporation inspire of a specific request. Not only that. even after the petition had been filed. in para 5 of the return-affidavit, it as stated by the Corporation that the particulars of these bye-laws could not be furnished for want of availability. Nothing further need, however, be said on this aspect except that they are public records and should have been made readily available.

(10) Shri A, K. Gupta, learned counsel for the petitioners, contended that these bye-laws did not improve the position in any material respect. He said that even if section 420 of the Act was not ultra-vires in itself it still deserved to be struck down because the bye-laws produced prescribed no conditions for regulating the discretion of the Commissioner to grant or refuse the license and the power conferred by section 420 remained naked and unregulated. The grievance is not sustainable. As I have said the guide-line for the exercise of this power is provided by the provisions of the Act itself. The bye-laws are only in the nature of a further aid to indicate the course of action to be followed. In support of his submission, the learned counsel placed heavy reliance on Hari Chand Sarda v. Mizo District Council and another : [1967]1SCR1012 where section 3 of the Lushai Hills District (Trading by non-Tribals) Regulation (2 of 1958) was struck down on the ground that it left to the licensing authority unreasonable, unrestricted power in the matter of granting or refusing license, or its renewal to non-Tribal traders. He also referred to Harakchand Ratanchand Banthia and others v. Union of India and others- : [1970]1SCR479 -where inc contention of the appellants that provisions of sub-section (6) of Section 27 of the Gold (Control) Act (45 of 1968) for the grant or renewal of licenses regarding the licensing of dealers was struck down on the ground that the conditions contained therein were uncertain, vague, unintelligible and consequently void. Both these cases have no application to the present case.

(11) The decision in Hari Chand's case relied upon by the learned counsel was in the background of Art. 19(1)(g) of the Constitution. The appellant in that case, a non-Tribal, started trading at Aijal, Mizo District, in 1957 under a temporary license issued by the Mizo District Council investing about Rs. 50,000.00 in the business. The temporary license could be issued at a time for one year only and, thereforee, he applied for and obtained its renewal from time to time up to May 3l, 1960. When he applied for further renewal, the executive Committee of the District Council passed an order dated July 11, 1960, refusing any further renewal and directing him to remove his Properties from the District by the end of July, 1960 and imposed a fine of Rs. 500.00 in case he failed to comply with the requisition. In these circumstances, he filed a petition under Art. 226 on the grounds that the order was mala-fide and also that it was invalid being vocative of Art. 19(1)(g) of the Constitution. The Supreme Court held that the appellant being a citizen of India and the Mizo District being a part of the Union territory he had a fundamental right under Art. 19(1)(g) of the Constitution to carry on the Trade and any restrictions infringing this right could only be sustained if they are reasonable and imposed, in the interest of general public, (see page 831 para 6 of the report); With this background, after examining the provisions of the Regulation the Court found that the Regulations could not be called reasonable restrictions as envisaged in Art, 19(6) and were. thereforee, void. The observations made in the judgment have to be read in this context. A restriction not reasonable within the meaning of Art. 19(6) of the Constitution will not necessarily be discriminative for purposes of Art. 14. The same considerations apply to the observations in Harakchand Ratanchand Banthia's case cited by the learned counsel.

(12) Reference was also made by the learned counsel to Mohd. Fariik v. State of Madhya Pradesh and others : [1970]1SCR156 Here also. the question of restriction on the carrying on of the Trade were examined with .reference to Art. 19(1)(g) of the Constitution. The impugned notification issued by the Governor had the effect of prohibiting the slaughter of bulls and bullocks within the municipality, Jabalpur and was, thereforee, struck down as imposing a direct restriction upon the fundamental right. The. case affords no parallel to asset the petitioners in the present controversy.

(13) From the nature of things and the nature of activity sought to be regulated, considering the complexity of modern life and the changing conditions from day-to-day, it was not possible for the Corporation to prescribe in positive terms when the license for the plying of 'rehires' to sell vegetable and fruits in the markets will be granted and when it shall be refused. In fact that was not necessary because no fundamental right is vested in any one to do so. There is no substance, thereforee, in the grievance of the learned counsel that because of the absence of a positive bye-law to this effect, section 420 should be struck down as it cannot be worked.

(14) As a result of the above discussion, I am of the view that there is no merit in C.W. 275 of 1970 and C.W. 235/70 and the same are, thereforee, dismissed with costs.

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