Shri Jagdamba Parshad Tiwari vs Shri Vishwanath And Ors.
2006 Latest Caselaw 590 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. This LPA has been preferred against the order of the learned Single Judge dated 30.1.2006, wherein the learned Single Judge has refused to give directions to transfer tehbazari in the name of the appellant. As per the NDMC rules tehbazari can be transferred only in the name of LRs of the deceased person who was holding tehbazari. Appellant is not L.R. of the deceased and is a third person who paid money to the deceased for squatting in his place.

2. Tehbazari is a purely personal right and it is a license given to a person for doing business on patri/ pavement. It is observed by the learned Single Judge that tehbazari licenses were being sold and traded. In our opinion this was wholly illegal. The learned Single Judge has noted the instance of a sum of Rs.1.5 lakhs having been paid for a tehbazari license. The persons who were even employed, or doing business had obtained Tehbazari license by payment of hefty amounts. Tehbazari was permitted so that a poor person may earn livelihood. The learned Single Judge has observed that those persons who can pay Rs.1.5 lakhs for getting a Tehbazari license from the existing persons, cannot be considered as poor persons in need of livelihood. He held that since tehbazari is purely a license and purely a personal right, it is non- transferable. We agree with the view of the learned Single Judge.

3. The other argument of learned Counsel for the appellant is that MCD has framed a policy which allows transfer of tehbazari in the name of a third person and therefore, NDMC should also be directed to effect the transfer in the name of third parties.

4. If an authority is doing a wrong, it cannot be directed to do the same wrong again . Article 14 of the Constitution does not apply in the matter of illegalities. The Court cannot give a direction to the NDMC to disregard its rules. The Court cannot be a party to perpetuate illegalities.

5. Thus, in Union of India v. International Trading Co. ( 2005) 3 S.C.C. 437 the Supreme Court observed ( vide para 13):

It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases.

The same view was taken in Secretary, Jaipur Development Authority v. Daulat Mal Jam ( vide paras 24 & 28).

6. We have carefully considered the judgment of the learned Single Judge which rightly refuses the prayer of the appellant seeking transfer of tehbazari license. There is no merit in the appeal.