Full Judgment Text
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PETITIONER:
PYARE LAL ETC.
Vs.
RESPONDENT:
NEW DELHI MUNICIPAL COMMITTEE & ANR.
DATE OF JUDGMENT:
20/04/1967
BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
WANCHOO, K.N. (CJ)
BHARGAVA, VISHISHTHA
CITATION:
1968 AIR 133 1967 SCR (3) 747
CITATOR INFO :
RF 1975 SC2178 (9)
1989 SC1988 (2,9,17)
ACT:
Punjab Municipal Act 1911 (3 of 1911), ss. 173, 188-Power to
regulate sale of edibles on public streets-Street vendors
whether have fundamental right to carry on their trade-Food
Adulteration Act, 1954 and Rules made thereunder-Their
effect on powers tander s. 173 of Municipal Act.
HEADNOTE:
The petitioners were vendors of potato chops and other
edibles which they sold on public streets. The New Delhi
Municipal Committee issued them licences for some time and
later on tried to give them alternative sites for carrying
on their trade. Finally however on 30th April 1965 it
passed a resolution banning the sale of cooked edibles on
public streets. The vendors filed a petition for writ in
the High Court which failed. With special leave they
appealed to this Court.
It was urged on behalf of the appellants that : (i) in the
absence of bye-laws framed under s. 188 of the Punjab
Municipal Act the Municipal Committee had no power under s.
173 of the Act to prohibit their trade; (ii) After the
passing of the Prevention of Food Adulteration Act, 1954 the
powers under s. 173 could not be used to regulate the sale
of food from the purity aspect; (iii) the power of the
Municipality under s. 173 was only to regulate the trade but
it could not be used to contravene the fundamental right of
the petitioners to carry on their business.
HELD : (i) The powers of the Municipality under s. 173 to
allow encroachments on public streets and to permit sale of
food or stalls to be set up was meant for special occasions
like festivals, etc. Section 188 was not designed for the
purpose of. framing bye-laws to regulate the conditions on
which persons like the petitioners, could be allowed to
carry on trade on public streets and thus create permanent
unhygienic conditions. This should never have been
permitted by the Municipality.[753 M]
(ii) The object of the Food Adulteration Act was that food
which the public would buy was prepared packed and stored
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under sanitary conditions so as not to be injurious to the
health of the people consuming it. The rules made
thereunder would override rules or bye-laws made by a
municipality only if they covered the same field. Under s.
173(1) of the Punjab Municipal Act, however, it was open to
the Municipal Committee to take steps to prevent sale of any
cooked food however pure if the sale thereof on public
streets would offer obstruction to passersby or create
insanitary conditions. [755 D-F]
(iii) Out of sympathy for the street hawkers and
squatters the N.D.M.C. had permitted the continuance of the
trade for a long time. But no objection could be taken to
their exercise of power under s. 173 of the Punjab Municipal
Act to eradicate the evil. The power was confined merely to
preventing obstruction to traffic. Every person has a right
to pass and repass along a public street. But he cannot be
heard to say that he ha,;; a fundamental right to carry on
street trading and particularly in a manner which is bound
to create insanitary and unhygiene conditions in the
neighbourhood. [758 A-B]
7 48
Roberts v. Hopwood, [1925] A.C. 578, Pyx Granite Co. v.
Ministry ,of Housing, [1958] 1 All E.R. 625, C. S. S. Motor
Service v. Madras State A.I.R. 19053 Mad. 279 and
Westminister Corporation v. London and North Western Railway
[1905] A.C. 426, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 4865492 of
1967.
Appeals by special leave from the orders dated August.4,
1966 of the Punjab High Court, Circuit Bench at Delhi in
Letters Patent Appeals Nos ’ 84-D, 70-D, 72-D, 73-D, 71-D,
55-D and 79-D of 1966 respectively.
Madan Bhatia and D. Goburdhun, for the appellants (in all
the appeals).
Bishan Narain and Sardar Bahadur, for respondent No. 1 (in
C. As. Nos. 486-488 of 1967) and the respondent (in C.A.
No. 489 of 1967).
Sardar Bahadur, for respondent No. 1 (in C. As. Nos. 490492
of 1967).
R. N. Sachthey, for respondent No. 2 (in C. As. Nos. 486-
488 and 490 to 492 of 1967).
The Judgment of the Court was delivered by
Mitter, J. These are seven appeals, by special leave, from a
a judgment and order of the Punjab High Court in a Letters
Patent Appeal from a judgment and order of a single Judge
dated April 7, 1966.
The facts in all these appeals bear a close resemblance and
these cases were dealt with by a common judgment of the High
Court. The facts in Appeal No. 486 of 1967 i.e. Pyare Lal’s
case, as laid in his petition, may be stated by way of
specimen. By his petition dated October 12, 1965 Pyare Lal
moved the Punjab High Court for the issue of a writ or
direction restraining the New Delhi Municipal Committee from
interfering with his right to carry on his trade at the site
referred to in paragraph 1 of his petition, or, at any rate,
without allotting an alternative site to him. He was a
seller of potato chops and squatted at a site beside the
service lane at the back of a shop off Janpath, New Delhi.
There were other squatters who occupied sites in the same
service lane. Although in the petition it was claimed that
the site was not part of a public street, this was not
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pressed before the High Court and we will proceed on the
basis that as a matter of fact, be was squatting on a public
street. He claimed to have. been carrying on his trade at
the same site from before 1950. He became a member of an
association of squatters within the area of New Delhi
Municipal Committee known as the New Delhi Rehri Owners
Association formed for the purpose of pressing
749
the demands of its members for grant of licences and other
facilities by the said Municipal Committee. Reference is
made in the petition to assurances said to have been given
by the President and Vice-President of the Municipal
Committee to the association in 1956 for giving the members
of the association certain protection on conditions. it is
said that the Vice-President of the Municipal Committee gave
an assurance that if the squatters formed themselves into a
co-operative society for preparation of edibles and built
trolleys of specified designs and agreed to carry on their
trade at places allotted, licences would be issued to them.
In response to this, a co-operative society was. formed and
the Health Officer of the Municipal Committee informed the
association of the sites which had been approved by the
Municipal Committee for the purpose. Before the licences
could be issued, the office bearers of the Municipal
Committee were changed and the new incumbents sought to go
back upon the assurances given by their predecessors. After
a long spell of contest and uncertainty the then President
of the Municipal Committee made a press announcement in May
1963 that all squatters and stall-holders within the area of
the New Delhi Municipal Committee who had been squatting or
holding stalls since 1957 would be granted licences for the
same. This was followed by a. survey of all squatters and a
list of them including the petitioner was prepared. On
December 20, 1963, the New Delhi Municipal Committee passed
a resolution for the grant of licences to these squatters.
The relevant portion of the same is as follows :-
"1. Temporary tehbazari permits would be
issued to verified squatters/hawkers.
2. The hawkers/squatters would be required
to sit at the site as might be specifically
allotted by the committee and during such
hours as might be prescribed.
3. The tehbazari fee would be charged from
such squatters at the rates given in the
scheme prepared by the SVP (senior Vice-
President) dated 22-7-1962.
4. The squatters should be required to pay
three months’ tehbazari fee in advance before
the issue of the temporary tehbazari permit.
5.
6. The conditions of the tehbazari permit
as mentioned above were approved subject to
the condition
(a) Condition No. 7 be deleted.
(b) The word licencee’ shall be substituted
by "hawkers/squatters".
750
(c) The last condition would be as suggested
by the L.A. in his note dated 20-12-1963.
7. The selection and allotment of sites
would be done by a sub-committee consisting of
P.M.C., S.V.P. and J.V.P."
The petitioner was granted a licence to run his potato chops
trade at a monthly fee of Rs. 25 and he was allotted a
specific site mentioned earlier. Sometime in July 1964 the
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respondent Committee sought to impose a condition to the
effect that all hawkers/squatters should remove their stalls
every day after sunset and re-establish them after sunrise.
Various stall-holders challenged the aforesaid condition as
unreasonable by way of writ petitions and civil suits.
Thereupon, the Committee stopped accepting licence fee from
these squatters/hawkers. Ultimately most of them withdrew
their cases pending in court on assurance being given that
they would not be disturbed in their trade. Thereafter, the
New Delhi Municipal Committee called upon the
squatters/hawkers to submit declarations that they had paid
the tehbazari fee up to 30-6-1965 and that they had been
allotted alternative accommodation by the respondent in lieu
of the sites previously occupied. In return the Committee
assured them that it would accept tehbazari fee from them
and allow the occupation by them of the former sites held by
them until allotment of alternative accommodation. It is
stated that the petitioner submitted the desired declaration
and the New Delhi Municipal Committee accepted the sum of
Rs. 225 as licence fee up to 30-6-1965. In the matter of
allotment of alternative sites however, the respondent
practised discrimination and did not allot any site to the
petitioner although it granted such facility to others.
Further, the employees of the N.D.M.C. from time to time
threatened the petitioner with removal of all his articles
etc. with which he carried on his trade from the site
occupied by him. The petitioner submitted that the N.D.M.C.
was preventing him from carrying on his trade as a seller
of potato chops unreasonably and in gross abuse of its
power. It was submitted further that it was not open to the
respondent to act arbitrarily and interfere with the
petitioner’s trade until the resolution, granting the
licence was annulled by a subsequent resolution. It was
also submitted that the N.D.M.C. had no power under s. 173
of the Punjab Municipal Act to withdraw permission. for
encroachment on a public street unless reasonable prior
notice was given. The :grounds formulated in the petition
were inter alia as follows
1. The N.D.M.C. has no power to take away
the fundamental right of the petitioner to
carry on his trade. It could only regulate
the common law right of the petitioner to sell
his wares on a public street under s. 173
751
of the Punjab Municipal Act only so far as it
was necessary in the interest of the safety or
convenience of the public.
2. That no resolution having been passed
annulling the grant of licence to the
petitioner, the action of the N.D.M.C. was
illegal and without jurisdiction.
3. The action of the N.D.M.C. in preventing
the petitioner from carrying on his trade
without allotting an alternative site was
discriminatory and unconstitutional.
In the counter affidavit by the Secretary to the New Delhi
Municipal Committee (hereinafter referred to as the
N.D.M.C.) it was stated that the petitioner had no
fundamental right of the kind mentioned in the petition and
his right, if any, to early on his business was subject to
such reasonable restrictions as the N.D.M.C. might think tit
to impose under the provisions of the Punjab Municipal Act.
The restrictions actually imposed upon the squatters/hawkers
were reasonable and within the ambit of the powers of the
N.D.M.C. The petitioner had been granted a temporary
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tehbazari permit under the temporary tehbazari permit scheme
and according to condition No. 2 of the permit the N.D.M.C.
reserved to itself the right to cancel the same without
assigning any reason whatsoever. The permit did not confer
any right in property to the petitioner and his right to
carry on business had been banned to his knowledge by
resolution No. 36 dated 30th April, 1965 passed by the
N.D.M.C. The petitioner was carrying on ;the business in
violation of the resolution of the committee. On the merits
of the case, it was stated that the N.D.M.C. had considered
a scheme prepared by the senior Vice President regarding re-
organisation of procedure about the issue of licences to,
hawkers, squatters, etc. and by a resolution of 29th June
1962 it was resolved that in future a sub-committee would go
into the matter of determining the persons or category of
persons who would be given licences. After prolonged
discussions and consideration, the resolution was passed on
20th December 1963. By this the terms and conditions of a
permit to be granted to hawkers/squatters were decided upon
a pro-forma of a temporary permit was also settled and on
the reverse thereof the conditions regarding the grant of
permit were incorporated. Due to violation of the
provisions of the Punjab Municipal Act by the squatters and
because of certain practical difficulties, the committee
resolved on 13th March 1964 that temporary permits would be
issued to verified hawkers for the day-time only and that
the sites occupied must be left clear during the night. A
sub-committee consisting of several municipal officers went
round to various places in New Delhi to inspect the sites
already selected
7 52
for allotment to hawkers/squatters. They were unable to
select any further new sites and made a report to the
President of the Committee. As many as 264 squatters out of
725 were allotted the sites approved. The progress of the
allotment of approved sites was not appreciable as many of
the squatters did not find the new sites to their choice.
The Committee by its resolution dated 17th July 1964 decided
that temporary tehbazari permit fees should be deposited by
the verified squatters who had not been allotted sites till
then on condition that "site to be fixed" was to be
mentioned in the permits of such squatters. 483 squatters
deposited requisite charges upto the period ending 30th
September 1964. It was noticed however that the squatters
were not complying with the conditions of the temporary
tehbazari permit scheme. In order to enforce these
conditions, day and light raids were conducted and tarpaulin
sheds of various squatters were removed as also goods of
those who stayed on the sites at night. Ultimately, by
reason of non-compliance of the conditions of the temporary
permit scheme by hawkers, the scheme itself was suspended
with effect from 1-9-1964. The sale of cooked articles of
food gave rise to such insanitary conditions that a
resolution was passed by the committee on the 30th April
1965 banning the sale of cooked food including, tea, kulcha,
choley, dahi bara, etc.
It was submitted in the counter affidavit that the
petitioner as a holder of a temporary tehbazari permit had
no right or interest in the land belonging to the N.D.M.C.
and that his right was subject to permission by the N.D.M.C.
to carry on his trade. The petitioner had submitted a
declaration to the effect that he had ceased to squat in
the N.D.M.C area. He never made an application for
allotment of a platform at Ramakrishnapuram (a facility
granted to many) but applied for change of trade from potato
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chops dealer to that of a general merchant. He was informed
on 2nd December 1964 about the cancellation of the temporary
tehbazari permit granted under S. 173 of the Punjab
Municipal Act. He had never been granted any licence. He
along with the other squatters were carrying on a business
which tended to create slums on some of the important roads
in New Delhi and as such the temporary tehbazari permit
scheme had to be suspended and permission for sale of cooked
food was withdrawn.
The contentions of the petitioner were turned down by the
learned single Judge and his appeal in common with that of a
number of appeals of other squatters and hawkers to the
Division Bench met with the same fate. The first contention
pressed before us in this appeal was that it was not open to
the Municipal Committee to stop the petitioner and others
from carrying on their trade by a resolution under S. 173 of
the Punjab Municipal Act. The relevant portion of the
section runs as follows
753
"(1) The Committee may grant permission in
writing, on such conditions as it may deem fit
for the safety or convenience of persons
passing by, or dwelling or working in the
neighbourhood, and may charge fees for such
permission, and may at its discretion withdraw
the permission, to any person to-
(a) place in front of any building any
movable encroachment upon the ground level of
any public street or over or on any sewer,
drain or watercourse or any movable
overhanging structure projecting into such
public street at a point above the said ground
level.
(b)
(c) deposit or cause to be deposited
building materials, goods for sale, or other
articles on any public street, or
(d)
(e) erect or set up any fence, post, stall
or scaffolding in any public street.
It was argued that s. 173 only made general
provisions but it was open to the N.D.M.C. to
frame bye-laws under s. 188 and in the absence
of such bye-laws a resolution under s. 173(1)
could not be passed so as to affect the
petitioner’s rights. S. 188 provides that a
committee may, and shall if so required by the
State Government frame. bye-laws. The nature
of the bye-laws is specified in cls. (a) to
(v) of s. 188 and cl. (u) reads :
" regulate the conditions on which and the
periods for which permission may be given
under sub-section (1) of section 172 and sub-
section (1) of section 173, and provide for
the levy of fees and rents for such per-
mission;"
It was urged that so long as bye-laws are not framed under
the above clause, the conditions on which and the periods
for which permission could be given under s. 173 (1) could
not be altered. In our opinion the bye-laws under s. 188(u)
had to be made for an altogether different purpose. Ss. 172
and 173 are generally aimed at preventing any encroachments
-over public streets which cause obstruction thereon. The
expression "goods for sale" in cl. (c) of s. 173(1) or
"stall" in cl. (e) of s. 173(1) have to be read in that
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connection. The placing of goods for sale or erecting
stalls in public street may be allowed by the municipality
on stated occasions as in the case of some festivals etc.
Again it may be necessary to seek the permission of the
municipality to make
754
.holes or excavation on any street or remove materials from
beneath any street or to take up or alter the payment or
deposit building materials thereon for the purpose of
erecting a new building or making an alteration to an
existing one and the power to regulate the conditions for
grant of permission and the fees to be paid in connection
therewith by bye-laws under s. 188 has that object in view.
S. 188 was not designed for the purpose of framing bye-laws
to regulate the conditions on which persons like the
petitioner could be allowed to carry on trade on public
streets and thus create permanent unhygienic conditions
thereon. This should never have been permitted by the
municipality and the fact that it has by resolution tinder
S. 173 purported to stop that practice cannot go against it.
It was then urged that s. 173 in so far as it purported to
give the municipality power to prevent the sale of cooked
food was repealed by the provisions of the Prevention of
Food Adulteration Act, 1954 and the Rules framed thereunder.
Our attention was drawn to ss. 23, 24 and 25 of the
Prevention of Food Adulteration Act. S. 23(1) of this Act
gives the Central Government power to make rules subject to
certain conditions. Under sub cl. (a) such rules may
specify articles of food or classes of food for the import
of which a licence is required prescribe the form and
,conditions of such licence., the authority empowered to
issue the same and the fees payable thereunder. Under cl.
(c) such rules may lay down special provisions for imposing
rigorous control over the production, distribution and sale
of any article or class of articles of food which the
Central Government may, by notification in :the Official
Gazette, specify in this behalf including registration of
the premises where they are manufactured, maintenance of the
premises in a sanitary condition and maintenance ,of the
healthy state of human beings associated with the
production. distribution and sale of such article or class
of articles. Under cl. (g) such rules may also define the
conditions of sale or conditions for licence of sale of any
article of food in the interest of public health. S. 24(1)
empowers the State Government. subject to certain
conditions, to make rules for the purpose of giving effect
to the provisions of this Act in matters not falling within
the purview of S. 23. S. 25 (1) provides that
"If, immediately before the commencement of
this Act, there is in force in any State to
which this Act extends any law corresponding
to this Act, that corresponding law shall upon
such commencement stand repealed."
Rules have been framed under this Act known as Prevention of
Food Adulteration Rules, 1955. R. 50(1) of the rules
provides that no person shall manufacture, sell, stock,
distribute or exhibit
755
for sale any of the articles of food specified therein
except under a licence. Such articles include "sweetmeats
and savourly". Our attention was also drawn to sub-rr. (5),
(10) and (11) ’of r. 50Under sub-r (5) the licensing
authority must inspect the premises and satisfy itself that
it is free from sanitary defects before granting a licence
for the manufacture, storage or exhibition of any of the
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articles of food in respect of which a licence is required
Under sub-r. (10) no person can manufacture, store or expose
for sale or permit the sale of any article of food in any
premises not effectively separated from any privy, urinal,
sullage, drain or place of storage of foul and waste matter
to the satisfaction of the licensing authority, and under
sub-r. ( 1 1 ) all vessel s used to r the storage or
manufacture of the articles intended for sale must have
proper covers to avoid contamination. It was argued on the
strength of the above that these rules covered the field of
sale of cooked food at stalls on public streets and
therefore the provisions of s. 173(1) of the Punjab
Municipal Act which might otherwise have empowered the
municipality to proceed thereunder stood repealed on the
promulgation of these rules. This argument is fallacious.
The object of s. 23(1) and the different sub-rules. under r.
50 was entirely different from that behind s. 173(1) of the
Punjab Municipal Act. The object of the Food Adulteration
Act, as its preamble shows, was to make provision for the
prevention of adulteration of food and adulteration in this
connection had a special significance under s. 2 of the Act.
The object of this Act was to ensure that food which the
public could buy was inter alia prepared, packed and stored
under sanitary conditions so as not to be injurious to the
health of the people consuming it. The rules framed
thereunder would only over-ride rules or bye laws, if any,
made by any municipality if they covered the same field.
Under s. 173(1) of the Punjab Municipal Act it is open to a
municipal committee to take steps to prevent sale of any
cooked food however pure if the sale thereof on public
streets would offer obstruction to passersby or create
insanitary condition.,, because waste matter was bound to be
thrown on the street an washing up of articles used in the
trade introduce unhygienic conditions in the neighbourhood
and create nuisance. We cannot accept the contention that
s. 173(1) had only the object of ensuring the free passage
of persons and traffic along the public street and so long
as there was no such obstruction powers under s. 173 could
not be utilised for any oblique purpose like preventing per-
son,, from carrying on a lawful trade.
It was further argued that s. 56(1) (g) of the Punjab Muni-
cipal Act showed that "all public streets, not being land
owned by Government and the pavements, stones and other
materials thereof and also trees growing on, and erections,
materials, implements and things provided for such streets"
vested in and were under the
756
-control of the committee. According to the learned counsel
this ,only empowered the committee to regulate trade on
public streets and not altogether prevent the same.
Our attention was drawn to Halsbury’s Laws of England, Vol.
-33 (Third Edition), article 998 at page 586 headed
"regulation of street trading". The learned author thus
summarised the law in England:-
"Subject to certain exceptions it is unlawful
for any person to engage in street trading in
or from a stationary position in any street
within a metropolitan borough, or to engage in
street trading in any designated street
whether or not in or from a stationary
position, unless he is authorised to do so by
a street trading licence.....
Nothing in the foregoing provisions (1)
restricts the right of any person to carry on
the business of a pedlar or hawker in
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accordance with a pedlar’s certificate or
hawker’s licence which he holds; or (2)
applies to the sale or exposure or offer for
sale of newspapers or periodicals by any
person who does not use in connection with the
sale, etc., any receptacle which occupies a
stationary position in a street, other than a
receptacle which is exclusively used in
connection with the sale etc. . . . "
It would appear that street trading is regulated by certain
statute,, in England and we have nothing of the kind here.
On the basis of the above passage, it cannot be said that
persons in India have a lawful right to pursue street
trading and such trading may be regulated but not altogether
prevented. On the authority of Roberts v. Hopwood(1) it was
argued by learned counsel that s. 173 at best gave a
discretion to the Committee to regulate street trading and
therefore the same has to be exercised reasonably and could
not altogether be prevented. Reference was also made to Pyx
Granite Co. v. Ministry of Housing(2) where it was held that
the planning authority under the Town and Country Planning
Act, 1947, was not at liberty to use their powers for art
ulterior object, however desirable that object may seem to
them to be in the public interest. In our view, hone of
these decisions have any bearing on the question before us.
There was no ulterior object behind the resolution of the
N.D.M.C. in this case. Clearly the presence of the stall-
holders on public streets and sale of cooked food was
against public hygiene and S. 173(1) could be availed of to
stop the same. Learned counsel also cited the case of C. S.
S. Motor Service v. Madras State(1). There it was argued
that the
(1) [1925] A.C. 578. (2) [1958] 1 All E. R. 625.
(3) A.I.R. 1953 Madras 279.
7 5 7
petitioners had a right to carry on motor transport business
and that this was a right guaranteed under Art. 1 9 (1) (g)
of the Constitution. It was held that the regulation of
motor traffic must be determined with the object of serving
the interests of the public. Further it was held that a
system of licensing which had for its object the regulation
of trade was not repugnant to Art. 19(1) (g). We do not
think that the observations in that case are of any
assistance to the appellants before us.
As a branch of the above argument it was also contended that
the resolution under s. 173 on which the municipal committee
relied in this case gave uncontrolled power to the committee
to do what they pleased.
It was argued that under the guise of regulation the
committee sought to take away the right of the petitioner
and others to carry on their trade at their sweet will.
Reliance was placed in this connection on a judgment of the
House of Lords in Westminster Corporation v. London and
North Western Railway(1). There it was observed that a
public body invested with statutory powers must take care
not to exceed or abuse them and that it must act in good
faith and reasonably. We do no," think that these obser-
vations help the appellants because it has not been shown to
its that there was any bad faith which prompted the N.D.M.C.
to pass the resolution complained of, nor did they act
unreasonably.
It was argued however that the counter affidavit of the res-
pondent as regards the allocation of alternative sites was
not correct and comment had been made thereon by the learned
single Judge of the High Court. However that may be, it is
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apparent from the judgment that not all the, squatters
applied for alternative accommodation and not all of them
approved of the sites which were allotted to them. It was
beyond the jurisdiction of the N.D.M.C. to provide persons
like the appellants with sites at Ramakrishnapuram. That
was under the jurisdiction of the Director of Estates and it
appears that this authority had been approached for helping
persons like the appellants. Further, no question of
discrimination can arise because all the hawkers/ squatters
did not apply for such sites or could not be provided with
such sites. The resolution of 30th April 1965 clearly show-
ed that the N.D.M.C. was out to stop the sale of cooked food
including tea, kulche choley etc., inasmuch as the sale of
cooked food presented an exceptionally difficult problem
because facilities like running water, sewer connection etc.
necessary for the minimum standard of sanitation could not
be made available.
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
(1) [1905] A. C. 426.
758
should have never allowed. Out of sympathy for them the
N.D.M.C. had permitted the continuance of the trade for a
Ion,-, time. But no exception can be taken to their
exercise of power under s. 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
neighbourhood.
The appeals therefore fail, and are dismissed. G.C. Appeals
dismissed.
759