Delhi High Court
Dharam Chand vs Chairman New Delhi Municipal ... on 22 September, 2014
Author: Manmohan
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 340/2014 & CM APPL. 668/2014
DHARAM CHAND ..... Petitioner
Through Mr. Tripurari Ray, Advocate with
Mr. Anil Kaushik and Mr. Rajinder
Singh, Advocates
versus
CHAIRMAN NEW DELHI
MUNICIPAL COUNCIL & ANR. ..... Respondents
Through Dr. Ritu Bhardwaj, Advocate for
NDMC.
Mr. Kirtiman Singh, Advocate with
Mr. Waize Ali Noor, Advocate for
UOI.
Mr. Amiet Andley, Advocate for
Delhi Police.
Reserved on : 20th August, 2014
% Date of Decision : 22nd September, 2014
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J:
1. Present writ petition has been filed challenging the order dated 3rd
December, 2013 issued by the Enforcement Department, New Delhi
Municipal Council whereby it has been decided to relocate the petitioner
from his existing site outside Supreme Court to a site near Gate of Baroda
House adjacent to the existing stalls due to security reasons. The relevant
portion of the impugned order is reproduced hereinbelow:-
ORDER
The Hon'ble High Court in the case "Laxmi Narain Vs
N.D.M.C. & 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:-
S.No. Name Existing Allotted Option sites
Trade Area
xxxxx xxxxx xxxxx
5. Sh. Dharam Chand Paan Biri 6'x 4' 209-Site near
S/o Sh. Trika Ram, Cigarette the gate of
213-S-01 (Stall) Baroda House
adjacent to
existing stalls.
(emphasis supplied)
2. Mr. Tripurari Ray, learned counsel for petitioner stated that petitioner
had been allotted one stall bearing size 6' x 4', Opposite Supreme Court
towards Bhagwan Dass Road near Office Complex of Supreme Court
Lawyers and Purana Quila Road Bungalows by the Thareja Committee vide
letter dated 6th May, 1999. He submitted that the allotment was in
accordance with Article 39(a) of the Constitution.
3. Mr. Ray further stated that distance between the Supreme Court and
the kiosk of the petitioner is more than 100 mtrs. Consequently, according
to Mr. Ray, kiosk of the petitioner could not be termed as a security hazard
to the Supreme Court.
4. Mr. Ray submitted that the right of the petitioner to carry on his trade
and occupation from the kiosk allotted to him by respondent-NDMC on the
basis of a direction by Thareja Committee is protected under Article
19(1)(g) of the Constitution. He further submitted that the right of the
petitioner could never be restricted by an executive order. According to
him, 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.
5. In support of his submission, Mr. Ray relied upon a judgment of the
Supreme Court in Kharak Singh Vs. The State of U.P. & Ors., (1962) 1
SCR 332 wherein 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."
6. Mr. Ray lastly contended that the order in Laxmi Narain Tiwari Vs.
New Delhi Municipal Corporation, W.P.(C) 6876/2012, dated 12th
December, 2012 had no bearing upon the present case.
7. On the other hand, Dr. Ritu Bhardwaj, learned counsel for
respondent-NDMC stated that on 7th September, 2011, a meeting was called
by Hon'ble Mr. Justice Altamas Kabir, Supreme Court of India immediately
after the bomb blast outside Delhi High Court to review the security
arrangements at the Supreme Court Complex. She further stated that in the
said meeting with police officials, it was decided that vendors must not be
allowed along the perimeter of the Supreme Court. She stated that
petitioner's kiosk was deemed a security hazard for the Supreme Court and
it was on this basis that direction was given to the respondent-NDMC vide
letter dated 10th September, 2011.
8. On the Court asking the parties to show the terms and conditions on
which the tehbazari / kiosk had been granted, learned counsel for
respondent-NDMC had handed over a copy of the tehbazari permission
dated 20th May, 1999 issued to the petitioner. The relevant terms of the said
tehbazari permission are reproduced hereinbelow:-
"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."
(emphasis supplied)
9. In rejoinder, Mr. Tripurari Ray, learned counsel for petitioner
challenged the legality and validity of the para 7 of letter dated 20 th May,
1999 as arbitrary and unconscionable. According to him, the said para was
in the nature of 'Henry VIII Clause'. In support of his submission, Mr. Ray
relied upon a judgment of the Supreme Court in Delhi Transport
Corporation Vs. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600
wherein it has been held as under:-
"200. This Court has observed in Central Inland Water Trans-
port Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr..
(supra)as under:-
.... Article 14 of the Constitution guarantees to all persons
equality before the law and the equal protection of the laws.
The principle deducible from the above discussions on this
part of the case is in consonance with right and reason,
intended to secure social and economic justice and
conforms to the mandate of the great equality clause in
Article 14. This principle is that the courts will not enforce
and will, when called upon to do so, strike down an unfair
and unreasonable contract, or an unfair and unreason- able
clause in a contract. entered into between parties who are
not equal in bargaining power ..... It will apply to situations
in which the weaker party is in a position in which he can
obtain goods or services or means of livelihood only upon
the terms imposed by the stronger party or go without
them."
201. The Court has. therefore, the jurisdiction and power to
strike or set aside the unfavourable terms in a contract of
employment which purports to give effect to unconscionable
bargain violating Art. 14 of the Constitution
202. Thus on a conspectus of the catena of cases decided by this
Court the only conclusion follows is that Regulation 9(b) which
confers powers on the authority to terminate the services of a
permanent and confirmed employee by issuing a notice
terminating the services or by making payment in lieu of notice
without assigning any reasons in the order and without giving any
opportunity of hearing to the employee before passing the
impugned order is wholly arbitrary, uncanalised and unrestricted
violating principles of natural justice as well as Article 14 of the
Constitution. It has also been held consistently by this Court that
the Government carries on various trades and business activity
through the instrumentality of the State such as Government
Company or Public Corporations. Such Government Company or
Public Corporation being State 'instrumentalities are State within
the meaning of Article 12 of the Constitution and as such they are
subject to the observance of fundamental rights embodied in Part
III as well as to conform to the directive principles in Part IV of
the Constitution. In other words the Service Regulations or Rules
framed by them are to be tested by the touchstone of Article 14 of
Constitution. Furthermore, the procedure prescribed by their
Rules or Regulations must be reasonable, fair and just and not
arbitrary, fanciful and unjust. Regulation 9(b), therefore, confers
unbridled, uncanalised and arbitrary power on the authority to
terminate the services of a permanent employee without recording
any reasons and without conforming to the principles of natural
justice. There is no guideline in the Regulations or in the Act, as to
when or in which cases and circumstances this power of
termination by giving notice or pay in lieu of notice can be
exercised. It is now well settled that the 'audi alteram partem' rule
which is essence, enforces the equality clause in Article 14 of the
Constitution is applicable not only to quasi-judicial orders but to
administrative orders affecting prejudicially the party-in-question
unless the application of the rule has been expressly excluded by
the Act or Regulation or Rule which is not the case here. Rules of
natural justice do not supplant but supplement the Rules and
Regulations. Moreover, the Rule of Law which permeates our
Constitution demands that it has to be observed both substantially
and procedure- ly. Considering from all aspects Regulation 9(b) is
illegal and void as it is arbitrary, discriminatory and without any
guidelines for exercise of the power. Rule of law posits that the
power to be exercised in a manner which is just, fair and
reasonable and not in an unreasonable, capricious or arbitrary
manner leaving room for discrimination. Regulation 9(b) does not
expressly exclude the application of the 'audi alteram partern' rule
and as such the order of termination of service of a permanent
employee cannot be passed by simply issuing a month's notice
under Regulation 9(b) or pay in lieu thereof without recording any
reason in the order and without giving any hearing to the
employee to controvert the allegation on the basis of which the
purported order is made."
10. Having heard learned counsel for parties, this Court is constrained to
observe that 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.
11. It is pertinent to mention that Section 388(D)(5) of the New Delhi
Municipal Council Act, 1994 gives power to respondent-Council to impose
terms and conditions while granting tehbazari. The said Section reads as
under:-
"388. Power to make bye-laws-(1) Subjects to the provisions of
this Act, the Council may, in addition to any bye-laws which it is
empowered to make by any other provision of this Act, make bye-
laws to provide for all or any of the following matters, namely":-
xxxx xxxx xxxx xxxx
D. Bye-laws relating to streets
(5) the permission, regulation or prohibition or use or occupation
of any street or place by it, itinerant vendors or hawkers or by any
person for the sale of articles or the exercise of any calling or the
setting up of any booth or stall and the fees chargeable for such
occupation."
12. Further, the allotment of kiosk may be in accordance with Article
39(a) of the Constitution, but it does not mean that once the kiosk is allotted,
it is for perpetuity and cannot be cancelled. In the opinion of this Court, the
said right is not an absolute right and it can be cancelled for germane, legal
and valid reasons.
13. It is settled law that the right of hawkers, kiosk-users and vendors by
nature can never be absolute, but have to be limited and subservient to over
all public interest. In Maharashtra Ekta Hawkers Union and Another vs.
Municipal Corporation, Greater Mumbai and Anr., 2013(11) SCALE 329
the Supreme Court has held as under:-
"7. In Maharashtra Ekta Hawkers Union v. Municipal
Corporation, Greater Mumbai (supra), which was decided on
9.12.2003, a two Judge Bench referred to the judgments in Olga
Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545, Sodan
Singh v. New Delhi Municipal Committee (supra), 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(l)(g) of the Constitution of India. This right
however is subject to reasonable restriction 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 areas 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 recognize 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 the Bombay Hawkers Union's case (1985) 3 SCC 528.
Those conditions have become final and there is no changed
circumstance which necessitates any alteration.
The Court then enumerated the following restrictions and
conditions subject to which the hawkers could do business in
Mumbai:-
xxxx xxxx xxxx xxxx
(3) There should be no hawking within 100 metres from any place
of worship, holy shrine, educational institutions and hospitals or
within 150 metres from any municipal or other markets or from
any railway station. There should be no hawking on footbridges
and over bridges. 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, agarbathis, coconuts
etc."
(emphasis supplied)
14. The legal proposition put forward by learned counsel for petitioner
with regard to Articles 19(1)(g) and 19(6) of the Constitution is
unexceptionable. But the issue is, does the legal proposition advanced by
the counsel for petitioner arise or apply in the facts and circumstances of the
present case?
15. A perusal of the letter dated 20th May, 1999 reveals that the tehbazari
permission granted by respondent-NDMC itself gave only a temporary and
terminable right to trade. One must not forget that petitioner is not being
evicted from his private property. Consequently, none of the submissions
advanced by learned counsel for petitioner can enlarge or expand the right
of petitioner.
16. This Court is further of the opinion that the terms and conditions
imposed by respondent-NDMC are fair and reasonable. Paragraph 7 of the
letter dated 20th May, 1999 is certainly not illegal or unconstitutional as
contended by learned counsel for petitioner. Cancellation of kiosk on the
ground of security and reason of public interest can never be said to be
illegal or unconstitutional. After all, one must not forget that the decision to
remove all squatters, vendors and kiosk owners was taken after the blast in
Delhi High Court in a meeting attended by security experts. This Court is of
the view that in security matters, it must defer to the wisdom and decision of
the police. Consequently, the DTC judgment referred to by learned counsel
for petitioner has no application to the present case.
17. This Court also finds that in present case, petitioner has been allotted
an alternate site not very far away from the existing site. Consequently, it
cannot be said that the petitioner's Fundamental Right under Article 19(1)(g)
of the Constitution is violated.
18. In view of the aforesaid, present petition and application are
dismissed but with no order as to costs.
MANMOHAN, J
SEPTEMBER 22, 2014
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