Sh.Dharam Chand vs Chairman, Ndmc & Ors.
2014 Latest Caselaw 5770 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Reserved on: 30.09.2014
                                        Date of Decision: 13.11.2014

+                        LPA No.675/2014

SH.DHARAM CHAND                                  ..... Appellant
            Through:           Mr. Tripurari Ray &
                               Mr. Rajinder Singh, Advs.

                               versus

CHAIRMAN, NDMC & ORS.                   ..... Respondents
            Through: Mr. Vivek B. Saharya, Additional
                      Standing Counsel for R-1 & 2.
                      Mr. Kirtiman Singh, CGSC with
                      Mr. Waize Ali Noor, Adv. for R-3.
                      Mr. Arun K. Sharma, Adv. for R-4.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE NAJMI WAZIRI

NAJMI WAZIRI, J.

1. This appeal impugns the judgment dated 22nd September, 2014

passed by the learned Single Judge whereby the appellant's challenge

is to the NDMC's order dated 03.12.2013. The said order had

relocated the appellant from his existing vending site outside the

Supreme Court of India to a site near the gate of Baroda House,

adjacent to the existing stalls, due to security reasons. The learned

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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 permitee 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."

2. 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. The learned Judge was also of the view that matters

of security must be left to the wisdom and decision of the police. The

Court was conscious that the decision to remove vendors from the

vicinity of the Supreme Court of India was taken in view of the bomb

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blast right 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.

3. Before the learned Single Judge the appellant had contended

that under Article 14 of the Constitution of India (Constitution), the

Court would strike down an unfair and unreasonable contract and such

clauses of a contract entered into between the parties who are not

equal in bargaining power without hearing the affected party, and the

weaker parties' rights cannot be curtailed in an unreasonable,

capricious or arbitrary manner.1 The learned Judge was of the view

that the aforesaid propositions were unexceptionable apropos Articles

19(1)(g) and 19(6) of the Constitution; however, neither of them

applied to the facts and circumstances of the present case. The learned

Judge reasoned that the right of hawkers, kiosk-users and vendors can

never be absolute, such rights would be subservient to public interest

and can be cancelled for germane, legal and valid reasons. It was

noted that although the allotment of kiosk may be in accordance with

Article 39 (a) of the Constitution but it would not be in perpetuity. The

Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600 __________________________________________________________________

learned Judge relied upon a Supreme Court judgment2 which held that

certain areas may be required to be kept free from hawkers for security

reasons. The said decision had also held that hawkers' right under

Article 19 (1) (g) of the Constitution is subject to reasonable

restrictions under Article 19 (6) and further that there is no

fundamental right under Article 21 to carry on any hawking business.

4. The learned Single Judge was constrained to observe "that the

petitioner had deliberately suppressed the terms and conditions on

which tehbazari permission had been granted by respondent-NDMC.

It is unbelievable that petitioner did not have a copy of the same as

security deposit and tehbazari monthly charges had been paid by the

petitioner only in accordance with the said letter". The Court found

that the appellant's right under Article 19(1)(g) of the Constitution had

not been violated since he was allotted an alternative site, not far away

from the existing site.

5. The learned counsel for the appellant strongly argued that the

learned Single Judge has failed to appreciate that the right to trade and

profession under Article 19(1)(g) of the Constitution is a

constitutionally guaranteed right and can be restricted only in

Maharashtra Ekta Hawkers Union & Anr. v. Municipal Corporation, Greater Mumbai Anr., 2013 (11) SCALE 329 __________________________________________________________________

accordance with Article 19(6) of the Constitution and it cannot be

diluted at the wish of the State; that such restriction would need to be

tested before the Court and the impugned judgment has erred in not

holding that the appellant's relocation was unreasonable; that there

was no basis for the relocation which was otherwise not issued by the

police on its own assessment of the security conditions but upon the

intervention of the Supreme Court on the administrative side; that the

impugned judgment is erroneous since neither the NDMC's counter

affidavit nor the letter dated 10.09.2011 (issued by the Addl. C.P.,

Delhi Police) indicate that the appellant's shop was a security hazard;

that the learned Single Judge had travelled beyond the pleadings and

without giving an opportunity to the appellant to explain the non-

disclosure of the Tehbazari letter of 20.05.1999, erroneously

concluded that there was suppression of facts. The learned counsel

further contended that in any case, the said letter would not be

applicable to the appellant since he is the allottee of a

constructed/covered kiosk; that the said letter itself provides that

allotment of built-up units including covered Tehbazari shall be

governed and regulated by separate terms and conditions which are

applicable from time to time. He relied upon the Supreme Court dicta __________________________________________________________________

in Municipal Corporation of the City of Jabalpur v. State of Madhya

Pradesh3 to contend that strict adherence to the pleadings was

necessary, not only for the orderliness of the proceedings but also to

avoid surprise to the other party in Court proceedings. He also relied

upon Maharashtra Ekta Hawkers Union (supra) in support of his

contention that the appellant's right under Article 19(1)(g) of the

Constitution is subject to reasonable restrictions under Article 19(6)

but this reasonableness must be tested by the Court.

6. At this juncture, a few observations are necessary. Site No. 213

being a stall of 6'x4', opposite the Supreme Court of India on

Bhagwan Das Road was offered to Sh. Dharam Chand (Appellant

herein) vide letter dated 06.05.1999 on such terms and conditions as

may be made. Thereafter, the appellant was granted Tehbazari

permission vide letter dated 20.05.1999 which contained the terms and

conditions. On 19th September, 2011, the NDMC suspended the

Tehbazari rights of the five persons hawking opposite the Supreme

Court of India as per the observation of the Additional Commissioner

of Police, New Delhi District which was under approval of the

competent authority. One of the affected parties, namely Sh. Laxmi

(1963) 2 SCR 135 __________________________________________________________________

Narayan filed a writ petition in this Court under Article 226 of the

Constitution of India for restoration of the earlier site or for

rehabilitation. The said writ petition was disposed of on 12.12.2013, in

view of the submission of the counsel for the NDMC that the

petitioner therein would be allotted a fresh site within six weeks

therefrom. In terms of an order dated 03.12.2013, all five affected

persons including Sh. Laxmi Narayan were allotted fresh/alternative

sites.

7. This Court notices that the letter of 20.5.1999 clearly spells out

that Tehbazari rights would be purely temporary and on a month-to-

month basis. It further reads as under:

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

Quite clearly, the appellant's permission could be cancelled for

security reasons, which is undoubtedly covered under paragraph 7 of

the aforesaid letter granting the Tehbazari permission. The appellant

has no absolute or fundamental right to hawk in a public place. Even

though he traces such right to Article 19(1)(g) but the same would be __________________________________________________________________

subject to reasonable restrictions under Article 19 (6) of the

Constitution.

8. The appellant's contention that the terms apropos a built-up

kiosk would be governed by separate terms and conditions and not by

the terms as mentioned in the aforesaid letter dated 20.05.1999 is

liable to be rejected as untenable because the appellant has not shown

any other terms which would govern his license to hawk. In any case,

relocation of hawkers from the vicinity of the Supreme Court of India

for security reasons is definitely in public interest and is

unexceptionable in the context of a bomb blast on the perimeter of the

Delhi High Court. It cannot be deemed to be an unreasonable

restriction and is not a foul of Article 19(6) of the Constitution of

India. An assessment to this effect had been done by the local police.

Furthermore, paragraph 7 of the Tehbazari permission letter dated

20.05.1999 clearly provides that the permittee shall vacate the site for

security reasons or other circumstances in public interest. The

appellant ought to have disclosed this information to the Court.

Insofar as he had defaulted in doing so, the conclusion of the learned

Single Judge that the appellant had suppressed material facts cannot be

faulted.

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9. This Court is further of the view that when reasonable

restrictions under Article 19(6) of the Constitution on the ground of

security or threat perception are adjudicated, it would be wise to give

due weightage to the assessment of the police or the security agency

concerned. This Court finds 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). The reason for such restriction was justified and

the appellant had no case. Therefore, the writ petition was liable to be

rejected.

10. In view of the aforesaid discussion, this Court finds no infirmity

in the impugned judgment of the learned Single Judge. This appeal is

without merit and is accordingly dismissed.

NAJMI WAZIRI, J.

NOVEMBER 13, 2014                      KAILASH GAMBHIR, J.
ak

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