Civil Appeal No 31891989
From the Judgment and Order dated 1131987 of the Delhi High Court in CWP No 875 of 1986 RB Datar and Ranjit Kumar for the Appellant
VB Saharya for the DDA Jose P Verghese and OP Verma for the Respondent
The Judgment of the Court was delivered by SEN J
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 article 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 appellant Municipal Corporation of Delhi sought police help to clear the pavement near the OPD gate of the Irwin Hospital now known as Lok Nayak Jai Prakash Narain Hospital which is one of the largest hospitals in Northern India on a complaint made by the Hospital authorities that the pavement hawkers by setting up their stalls or pitching their wares were causing inconvenience to the ingress or egress of the ambulances besides causing congestion on the pavements and obstructing the free flow of traffic
The Municipal Corporation was satisfied that if the squatters continued to cover pathways meant for pedestrians a time would come when no room would be left for people to walk on the footpaths
In a police action the pavements hawkers were removed from outside the main gate of the Irwin PG NO 933 Hospital in and around the subway of Jawahar Lal Nehru Marg on January 15 1984
On February 22 1984 eight of these pavement squatters instituted separate suits in the Court of the Subordinate Judge II Class Delhi against the Municipal Corporation seeking the relief of perpetual injunction restraining the appellant its officers and servants from interfering with their business of hawking on the pavements out side the main gate of the hospital andor from demolishing or removing any temporary structures put up by them for plying their trade
In denial of the claim the appellant Municipal Corporation pleaded inter alia i that the construction of the kiosks or stalls by the plaintiffs was without permission and therefore amounted to an encroachment on the pavement
The Municipal Corporation accordingly under section 322 of the Delhi Municipal Corporation Act 1957 had the right and authority to remove such encroachment without notice and ii that the plaintiffs had no legally enforceable right under the terms of the tehbazari licence they having committed violation of the terms and conditions there of besides being in arrears of licence fee
Accordingly it pleaded that the plaintiffs  claim in suit was wholly misconceived
The suits were consolidated together for trial as they raised a common issue
It is common ground that the plaintiffs had each been occupying a site admeasuring 6 ft
x 4 ft
on tehbazari basis since the year 1975
The contention of the plaintiffs was that the Municipal Corporation having itself allotted the plaintiffs licence under section 321 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 section 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 section
3 of section 430 of the Act
On February 24 1984 Shri BP 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 PG NO 934 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 which stall can be removed at any time by the defendant MCD without notice
In this light the plaintiffs have no right to claim an injunction against demolition or removal of any stall or other structure if posted or placed or affat the same time defendant MCD cannot remove the plaintiffs nor interfere with their business at the suit site in any other manner without terminating their licence to occupy the said sites in accordance with the procedure contained in sec
4303 of DMC Act
 The learned Judge accordingly partly decreed the plaintiff s claim to the extent indicated hereafter Consequently all these suits are partly decreed to the effect that the defendants are restrained permanently from removing the palintiffs from the suit sites without terminating the Tehbazari permission granted in their favour in accordance with the provisions of section 4303 of the DMC Act
The prayer for injunction against demolition or removal of the stalls of the plaintiffs is disallowed
 It therefore follows that the learned Subordinate Judge accordingly disallowed the plaintiffs main claim seeking a declaration that the Municipal Corporation had no right or authority to remove the stalls built up by them on the pavement in front of the main gate of the Irwin Hospital
He however held that by virtue of the tehbazari licence granted in their favour the plaintiffs had acquired the right to occupy and carry on business at the suit site each admeasuring 6 ft
x 4 ft
in question and till their licence was not terminated by the Municipal Corporation after PG NO 935 following the procedure laid down in proviso a to sub section
3 of section 430 of the Act
It had no power to remove the plaintiffs nor interfere with their business at the suit sites
It could not take recourse to its power of removal of encroachment without notice under section 322a of the Act
It is equally evident that the learned Subordinate Judge partly decreed the plaintiffs  claim only to that extent that it restrained the Municipal Corporation from taking any steps for removal of such encroachment by the plaintiffs inasmuch as the power under section 322a of the Act cannot be exercised without following the procedure laid down in section 4303 of the Act and without terminating the tehbazari licence granted in their favour
The respondent Gurnam Kaur was one of the plaintiffs and she had been in occupation of a site admeasuring 6 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 article 32 of the Constitution being Writ Petition Nos
981 8284 Jamna Das  Anr
vs 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 repeated applications there was no redressal of the wrong done to them inasmuch as the Municipal Corporation had arbitrarily and without any rational basis denied them such facility
Further it was alleged in that case that the father of the petitioners had been occupying the site admeasuring 6 ft
x 4 ft
on tehbazari licence since the year 1947 till his death in 1975 and thereafter the petitioners were permitted to occupy the same on similar terms but the Municipal Corporation illegally caused their removal with police help
It was averred that the Municipal Corporation could not take recourse to its power of eviction under section 322a of the Act without terminating the tehbazari licence in their favour and without following the procedure prescribed by proviso a to section 4303 of the Act
Several adjournments were taken in an effort to find a solution to PG NO 936 the problem by learned counsel appearing for the Municipal Corporation
Eventually Desai J speaking for a Bench of two Judges by his order dated March 29 1985 made a direction for rehabilitation of the petitioners
Virtually it was a consent order as learned counsel appearing both for the Delhi Development Authority and the Municipal Corporation requested the Court to give a direction keeping in view the sketch plan furnished by the Municipal Corporation and gave an undertaking that any direction made by the Court for rehabilitation of the petitioners would be carried out
The Court accordingly directed that the petitioners be rehabilitated by the Municipal Corporation by construction of stalls according to the sketch plan with a further direction that each of them would be put in possession of one of the stalls
The direction was however made subject to the condition that such construction of stalls would not cause any further obstruction to the free flow of traffic
The Court also made it clear that the direction should not be treated as a precedent
Presumably because of the direction made by this Court in Jamna Das  case
the respondent Gurnam Kaur moved the High Court under article 226 of the Constitution in April l986 for the issuance of an appropriate writ or direction restraining the Municipal Corporation from evicting her without the due process of law
A Division Bench of the High Court by the impugned judgment has partly allowed the writ petition holding that the judgment of the learned Subordinate 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
PG NO 937 We find it rather difficult to sustain the judgment of the High Court
The learned Judges failed to appreciate that this Court in Jamna Das  case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent
It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc
contrary to section 320 of the Act as a condition precedent to the exercise of its powers under section 322 of the Act for the removal of such encroachment on any public street footpath or pavement
That apartthe High Court could not have made the impugned direction contrary to the provisions contained in sections 320 and 322 of the Act
section 3201 in terms creates a statutory bar against illegal encroachment on any portion of a public street
It provides that No person shall except with the permission of the Commissioner granted in this behalf erect or set up any booth or other structure whether fixed or movable or whether of a permanent or temporary nature or any fixture in or upon any street etc
Having regard to this express provision the High Court failed to see that the respondent Gurnam kaur had no legally enforceable right to the grant of a writ or direction in the nature of mandamus
The High Court could not obviously issue any such direction which would be tantamount to a breach of the law
Furthermore the High Court could not also make the impugned direction in view of the provision contained in section 322a of the Act which expressly confers power on the Commissioner to cause the removal of any structure which constitutes an encroachment on a public place like a street which is meant for the use of the pedestrains
It is axiomatic that when a direction or order is made by consent of the parties the Court does not adjudicate upon the rights of the parties nor lay down any principle
Quotability as law  applies to the principle of a case its ratio decidendi
The only thing in a Judge sdecision binding as an authority upon a subsequent Judge is the principle upon which the case was decided
Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative
The task of finding the principle is fraught with difficulty because without an investigation into the facts as in the present case it could not be assumed whether a similar 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 PG NO 938 was acceptable by all the parties concerned
The Court no doubt made incidental observation to the Directive Principles of State Policy enshrined in article 382 of the Constitution and said Article 382 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 hospitals
A little more space in the access to the hospital may be welcomed but not at the cost of someone being deprived of his very source of livelihood so as to swell the rank of the fast growing unemployed
As far as possible this should be avoided which we propose to do by this short order
 This indeed was a very noble sentiment but incapable of being implemented in a fast growing city like the metropolitan City of Delhi where public streets are overcrowded and the pavement squatters create a hazard to the vehicular traffic and cause obstruction to the pedestrians on the pavement
Pronouncements of law which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative
With all respect to the learned Judge who passed the order in Jamna Das  case and to the learned Judge who agreed with him we cannot concede that this Court is bound to follow it
It was delivered without argument without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavement or public streets and without any citation of authority
Accordingly we do not propose to uphold the decision of the High Court because it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions
A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute
So far as the order shows no argument was addressed to the Court on the question or not whether any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a PG NO 939 pavement squatter
Professor PJ Fitzgerald editor of the Salmond on Jurisprudence 12th edn
explains the concept of sub silentio at p 153 in these words A decision passes sub silentio in the technical sense that has come to be attached to that phrase when the particular point of law involved in the decision is not perceived by the court or present to its mind
The Court may consciously decide in favour of one party because of point A which it considers and pronounces upon
It may be shown however that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour but point B was not argued 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 vs Worth of Paris Ltd k
 1936 2 All ER 905 CA 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 vs Bremith Ltd the Court held itself not bound by its previous decision
Sir Wilfrid Greene MR 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 to the crucial words of the rule and without any citation of authority it was not binding and would not be followed
Precedents sub silentio and without argument are of no moment
This rule has ever since been followed
One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened
The weight accorded to dicta varies with the type of dictum
Mere casual expressions carry no weight at all
Not every passing expression of a Judge however eminent can be treated as an ex cathedra statement having the weight of authority
PG NO 940 At the end of the day we must make a mention that Shri Verghese learned counsel for the respondent made a valiant effort to bring into play the principles laid down by this Court in Olga Tellis  Ors
vs Bombay Municipal Corporation  Ors  and Bombay Hawkers  Union  Ors
vs Bombay Municipal Corporation  Ors  We are afraid we cannot permit the question to be raised for two reasons
In the first place no such point was taken in the writ petition nor any contention advanced before the High Court that the removal of the illegal encroachment by the Municipal Corporation constitutes a threat to life and liberty guaranteed under article 21 of the Constitution or that the right to life includes a right to livelihood
Secondly the rights of the parties now stand crystallized by the aforementioned judgment of the learned Subordinate Judge in the suit brought by the respondent and the rights have to be worked out in terms of the decree passed by him which has since become final
Besides the decision in Olga Tellis is of little avail
Chandrachud CJ
speaking for the Constitution Bench observed that the word life  in article 21 included livelihood but upheld the validity of sections 3131 and 314 of the Bombay Municipal Corporation Act 1888 which provided that the Commissioner may without notice cause to be removed  obstructions as an encroachment on footpaths could not be regarded as unreasonable unfair or unjust
The learned Chief Justice however said that the section conferred a discretionary power which like all power must be exercised reasonably and in conformity with the provisions of our Constitution
In Bombay Hawkers  Union Chandrachud CJ
speaking for himself and one of us Sen J held that the impugned 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 PG NO 941 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 further that All 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
We feel that the Municipal Corporation authorities in consultation with the Delhi Development Authority should endeavour to find a solution on the lines as suggested in Bombay Hawkers  Union ie by creating Hawking and Non Hawking Zones and shifting the pavement squatters to areas other than Non Howking Zones
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
We direct however that the appellant Municipal Corporation of Delhi shall act in conformity with the judgment of the Subordinate Judge II Class Delhi in the aforementioned suits which not having been appealed from has since become final inter partes
No costs


Summary:
The detenu DN Shah was caught on 23101986 in the act of transporting ten gold biscuits of foreign origin
On 221987 DN Capoor Officer on Special Duty and ex officio Secretary to the Government of Maharashtra in exercise of the powers specially conferred upon him by the Government of Maharashtra passed an order of detention against DN Shah under section 31 of the COFEPOSA Act
In the grounds of detention served on the detenu he was informed that he had a right to make a representation to the State Government as also to the Government of India  The detenu s representation addressed to DN Capoor was forwarded by the Superintendent Central Prison Nasik to the State Government who rejected the same
In March 1987 the detenu s mother respondent No 1 filed a petition in the High Court of Bombay challenging the detention order inter alia on the ground that the order of detention having been passed under section 31 by DN Capoor in his capacity as a specially empowered person the detenu had a right to make a representation in the first instance to DN Capoor himself as the detaining authority before availing of his right to make further representation and failure to notify him of this right in the grounds of detention violated article 225 of the Constitution
The PG NO 827 PG NO 828 High Court accepted this contention and quashed the order of detention
Before this Court the appellant contended that 1 neither Article 225 of the Constitution nor the provisions of the COFEPOSA Act afforded scope for holding that if an order of detention was passed by a specially empowered officer of the State Government or the Central Government a different kind of procedure had to be followed in the matter of affording opportunity to the detenu to make his representation against the order of detention and 2 the High Court was not right in holding that the detenu had a right to have his representation considered by the very same officer who had passed the order of detention
The respondent on the other hand contended that unlike other Preventive Detention Acts such as the National security Act etc
there was no provision in the COFEPOSA Act for confirmation by the Government of an order of detention passed by a specially empowered officer under section 31 of the Act and as such the officer issuing an order of detention constituted the Detaining Authority of the detenu
Allowing the appeal it was HELD 1 On the plain language of Article 225 that article does not provide material for the detenu to contend that in addition to his right to make a representation to the State Government and the Central Government he has a further right under Article 225 to make a representation to DN Capoor himself as he had made the order of detention
835G H 836A 2 Even if an order of detention is made by a specially empowered officer of the Central Government or the State Government as the case may be it is the concerned Government that would constitute the Detaining Authority under the Act and not the officer concerned who made the order of detention and it is for that Government the detenu should be afforded opportunity to make representation against the detention order at the earliest opportunity as envisaged under Article 225
and not to the officer making the order of detention
840E G 3 Though by reason of Section 31 a specially empowered officer is entitled to pass an order of detention his constitutional obligation is only to Communicate expeditiously to the detenu the grounds of detention and PG NO 829 also afford him opportunity to make representation to the appropriate government against his detention
840G H 4 Unlike in other preventive detention acts the COFEPOSA Act does not provide for approval by the Central or State Government of an order of detention passed by one of its duly empowered officers and consequently an order of detention passed by an officer acquired deemed approval  by the Government from the time of its issue and by reason of it the Government becomes the detaining authority and thereby constitutionally obligated to consider the representation made by the detenu with utmost expedition
843A B 5 In view of the fact that the Act confers powers of revocation only upon the State Government and the Central Government and no provision is made for an officer making an order of detention to exercise powers of revocation any insistence upon the officer making the detention order considering the representation of the detenu himself will be nothing but a futile and meaningless exercise
6 Since it has been pointed out that a detention order passed by an officer having empowerment under the COFEPOSA Act to make an order of detention would also constitute an order of the Government by reason of deemed approval this Court cannot accept or sustain the view taken by the High Court that a detenu had a right to have his representation considered by the very same officer who had passed the order of detention
844H 845A B Kavita vs State of Maharashtra   Smt
Masuma vs State of Maharashtra
1982 I SCR 288 Santosh Anand vs Union of India  Pushpa vs Union of India 1980 Supp
SCC 391 Abdul Karim vs State of W Bengal   John Martin vs State of West Bengal    Jayanarayan Sukul v 
State of WB  Haradhan Shah vs State of W B   Satpal vs State of Punjab  Raj Kishore Prasad  PK Chakraharty vs State of W Bengal   Abdul Sukkur vs State of West Bengal  Vimal Chand vs Shri Pradhan l979 3 SCK 1007 Tarachand vs State of Rajasthan AIR 1980 SC 2133 NP Umrao vs BB Gujral   Devji Vellabhai Tandal vs Administrator  State of Bombay vs Purshottam Jog Nayak  and King Emperor vs Vimal Bhai Deshpande
ILR 1946 Nagpur 651
PG NO 830