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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No.5779    of 2015 [arising out of S.L.P.(C)No. 3632 of 2015]

Dharam Chand                 …..Appellant(s)

versus

Chairman, New Delhi Municipal Council and others …..Respondent(s)

JUDGMENT M. Y. EQBAL, J.  

Leave granted.

2. This  appeal  by  special  leave  is  directed  against  the

judgment dated 13.11.2014 of the Division Bench of the Delhi

High  Court,  which  dismissed  the  Letters  Patent  Appeal

preferred  by  the  appellant  against  the  decision  of  learned

Single  Judge  of  the  High  Court,  which  dismissed  the

appellant’s  writ  petition  challenging  the  order  dated

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03.12.2013 issued by the Enforcement Department, New Delhi

Municipal Council (NDMC) deciding to relocate the appellant (a

squatter) from his existing site outside Supreme Court to a site

near Gate of Baroda House adjacent to the existing stalls due

to security reasons.

3. The appellant’s case in brief is that since 1965 he was

squatting in the area of Chandni Chowk as a Hawker selling

cloths and thereafter Tehbazari of selling tea was given by the

NDMC to him at Bhagwan Das Road and he remained there

till 1982, when he was shifted to the present place opposite to

the Supreme Court.  In 1989, a large number of writ petitions

claiming a right to trade on the pavements in different parts of

Delhi were filed under Article 32 of the Constitution and the

Apex  Court  appointed  a  Committee  known  as  Thareja

Committee to examine the claims made by the squatters in the

light of Scheme prepared by the NDMC and the decision in

Sodan Singh vs. New Delhi Municipal Corporation, (1989)

4 SCC 155 to identify street pavement in different areas where

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the  street  hawking  could  be  regulated  without  being  a

hindrance  to  general  public.   On  the  application  of  the

appellant before the Thareja Committee, in May, 1999, he had

been allotted one stall bearing size 6’ x 4’, opposite Supreme

Court, towards Bhagwan Das Road and near Office Complex of

Supreme Court Lawyers and Purana Quila Road Bungalows in

May, 1999 by Director (Enforcement) NDMC, New Delhi.   

4. In September, 2011, an order was issued by Enforcement

Department,  NDMC,  for  temporary  suspension  of  various

Tehbazari  holders,  including  the  appellant,  for  security

reasons.   The appellant’s business from his Kiosk remained

unaffected.   However,  one  Laxmi  Narain  Tiwari,  who  was

allotted a squatting site next to the C-Gate of  the Supreme

Court of  India and was removed, moved the High Court for

either  restoration  of  his  site  or  his  rehabilitation.   On  the

stand taken by learned counsel  for  NDMC that  a fresh site

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would be allotted to the writ petitioner Laxmi Narain, his writ

petition was disposed of.   

5. Appellant  herein  contended  that  order  dated  12th

December,  2012  in  Laxmi  Narain  Tiwari  vs.  New  Delhi

Municipal  Corporation,  W.P.(C)  No.6876  of  2012  had  no

bearing  on  the  appellant’s  case  and  the  respondent  has

wrongly  and  without  any  basis  has  passed  the  following

relocation order dated 3.12.2013:

“The Hon’ble High Court in the case of “Laxmi Narain vs. NDMC & 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 Trade

Allotted Area

Option Sites

            xxxx                xxxx                    xxxx 5. Sh.  Dharam

Chand, S/o Sh. Trika  Ram, 213-S-01 (Stall)

Paan Biri Cigarette

6’x4’ 209-Site  near  the gate  of  Baroda House adjacent to existing stalls. (emphasis supplied)

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6. It has been pleaded on behalf of the appellant that the

allotment  was  in  accordance  with  Article  39(a)  of  the

Constitution  and  his  right  to  carry  on  his  trade  and

occupation from the kiosk allotted to him by NDMC on the

basis of a direction by Thareja Committee is protected under

Article 19(1)(g) of the Constitution.  It has been further pleaded

that his right could never be restricted by an executive order

and 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.   

7. It is the appellant’s case that he has been carrying on his

trade/occupation  on  this  very  place  since  before  1982  and

regularly  paying  rent  of  the  Kiosk  allotted  to  him.  The

appellant  over  a long period of  time has developed goodwill

and a very strong customer base and his  shifting from the

present place of business for security reasons has the effect of

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taking away his customers and would be a restriction on his

right  to  trade,  profession and occupation guaranteed under

Article 19(1)(g) of the Constitution.  The appellant relied upon

the judgment of  this  Court in  Kharak Singh vs.  State of

U.P., (1964) 1 SCR 332, stating that therein 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."  

8. Having heard learned counsel on either side, the learned

Single Judge of the High Court dismissed the writ petition of

the appellant. The learned Single Judge was of the view that

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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  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."  

9. 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 and the matters of security must

be left to the wisdom and decision of the police.

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10. Aggrieved by the decision of  the learned Single  Judge,

appellant  preferred  Letters  Patent  Appeal,  which  was  also

dismissed  by  the  Division  Bench  of  the  High  Court  vide

impugned order observing 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).  Hence, this appeal by special leave.

11. We have heard learned counsel for the parties at length

and perused the affidavit of  the respondents.   It  has been

contended  on  behalf  of  NDMC that  the  decision  to  remove

vendors from the vicinity of the Supreme Court of India was

taken in view of the bomb blast on the perimeter of the Delhi

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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.   The  respondent

contended that the appellant’s kiosk was deemed as a security

hazard by the Hon’ble Supreme Court Judge and it was on the

basis of his directions answering respondent was duty bound

as the civic body of the area to remove the appellant from his

site.  The  fundamental  rights  guaranteed  under  the

Constitution  of  India  are  also  subject  to  reasonable

restrictions, and keeping the security and public order of any

area, specially a sensitive area as the Supreme Court of India,

is one such restriction, wherein if the need arises, the personal

liberties  of  citizens  may  be  curbed  or  partially  within

reasonable limits, restricted in the interest of peace, security

and law and order.   

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12. The respondent referred to the decision of the Apex Court

in  Maharashtra  Ekta  Hawkers  Union  and  Another  vs.

Municipal Corporation, Greater Mumbai and Anr., (2014) 1

SCC 490, wherein it has been held as under:-

“8. In  Maharashtra  Ekta  Hawkers  Union v.  Municipal Corpn., Greater Mumbai,  (2004) 1 SCC 625, which was decided on 9-12-2003, a two-Judge Bench referred to the judgments  in  Olga  Tellis v.  Bombay  Municipal  Corpn., (1985) 3 SCC 545,  Sodan Singh v.  New Delhi Municipal Committee,(1989)  4  SCC  155,  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(1)(g)  of  the Constitution of India. This right, however, is subject to  reasonable  restrictions 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 area 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 recognise 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  Bombay Hawkers’ Union case, (1985) 3 SCC 528.  Those conditions have become final and there is no changed circumstance which necessitates any alteration.”

9. The Court then enumerated the following restrictions and conditions subject to which the hawkers could do business in Mumbai: (Maharashtra Ekta Hawkers Union case,(2004) 1 SCC 625 at SCC pp. 635-37, para 14)

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“(1)  An  area  of  1  m ×  1  m on  one  side  of  the footpath wherever they exist or on an extreme side of  the  carriageway,  in  such  a  manner  that  the vehicular and pedestrian traffic is not obstructed and access to shops and residences is not blocked. We  further  clarify  that  even  where  hawking  is permitted,  it  can  only  be  on  one  side  of  the footpath or road and under no circumstances on both sides of the footpaths or roads. We, however, clarify  that  Aarey/Sarita  stalls  and  sugarcane vendors would require and may be permitted an area of more than 1 m × 1 m but not more than 2 m × 1 m. (2) Hawkers must not put up stalls or place any tables, stand or such other thing or erect any type of structure. They should also not use handcarts. However,  they may protect  their  goods from the sun, rain or wind. Obviously, this condition would not apply to aarey/sarita stalls. (3) There should be no hawking within 100 m from any  place  of  worship,  holy  shrine,  educational institutions and hospitals or within 150 m from any  municipal  or  other  markets  or  from  any railway station.  There should be no hawking on footbridges and overbridges. 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, agarbattis, coconuts, etc.”

13. On 10.4.2015, while considering the counter affidavit of

respondent no.1 New Delhi Municipal Corporation, this court

thought  it  appropriate  to  obtain  the  stand of  the  Secretary

General  of  the  Supreme Court  of  India  as  also  the  Deputy

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Commissioner of Police, dealing with security of the Supreme

Court of India.

14. In pursuance of this Court's order, the Secretary General,

Supreme  Court  of  India,  and  the  Deputy  Commissioner  of

Police  filed  their  respective  affidavits,  copies  of  which  were

served  upon  the  appellant  and  the  respondents/intervenor.

In the affidavit  filed by the Deputy Commissioner  of  Police,

Supreme Court Security, it has been submitted inter alia that

it  is only after the bomb blast outside Delhi High Court on

07.09.2011, a meeting was called by the then Chief Justice of

India  and  this  Court  on  its  administrative  side,  after

deliberations with the Delhi Police, prohibited vendors to squat

along the  perimeter  of  the  Supreme Court.  Similar  affidavit

has  been filed  by  the  Secretary  General,  Supreme Court  of

India,  reiterating  the  same facts  in  para (2)  of  the  affidavit

about the incident which took place in 2011 and, thereafter,

security arrangement was reviewed with the Delhi Police and a

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decision was taken on the administrative side not to allow any

hawkers near the Supreme Court premises.   

15. After considering the aforesaid affidavits, this Court on

01.05.2015  directed  Secretary  General,  Supreme  Court  of

India and the Deputy Commissioner of Police, Supreme Court

Security to inform this Court as to whether after  2011 any

incident has been reported in and around the Supreme Court

premises.   Deputy  Commissioner  of  Police,  Supreme  Court

Security,  vide  his  affidavit  dated  30th June,  2015  has

submitted that since 2011 no such incident of bomb blast has

taken  place  in  and  around  the  Supreme  Court  premises.

According to the Affidavit,  DCP/New Delhi  District  has also

opined  that  keeping  in  view  the  movement  of  traffic  and

general  public,  the  surroundings  of  the  Hon’ble  Court  are

always  vulnerable.  Paragraphs  3  to  5  of  the  Affidavit  are,

therefore, extracted herein below:

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“3. That the deponent states that since 2011 no such incident of bomb blas has taken place in an around the Hon’ble  Supreme  Court  premises.   DCP/New  Delhi District has also stated that no such incident took place after  2011.   DCP/New Delhi  District  has further stated that keeping in view the movement of traffic and general public the surroundings of the Hon’ble Court are always vulnerable. 4. That  in  the  present  security  scenario  and  high threat  perception  to  the  various  vital  installations  and institutions including the higher judiciary in the country, as such it is not in the interest of the security to allow any squatting  on  the  pavements  and  area  around Supreme Court of India. 5. That the existing arrangements of not allowing any squatter on the pavements and adjacent area around the periphery of Hon’ble Supreme Court should be maintained and no change in the existing arrangements in this regard should be made so as not to adversely affect the security of the Hon’ble Supreme Court of India.”

16. Secretary General of the Supreme Court of India has also

submitted that no incident with regard to bomb blast has been

reported in and around the Supreme Court of India after the

bomb blast outside Delhi High Court on 07.09.2011.

17. We  have  heard  learned  counsel  appearing  for  the

appellant and the respondents on several dates.  On the final

date of hearing, Mr. Salman Khurshid, learned senior counsel

appearing for the appellant tried to convince us by showing a

rough sketch map to the effect that the Kiosk in question is

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not  located  within  the  Supreme  Court  compound.   It  was

contended that after the Supreme Court compound wall, there

is a road called Bhagwan Das Road.  After crossing the road,

there  is  a  huge  car  parking  and  thereafter  the  building  of

Indian  Law  Institute  and  lawyers’  chambers  are  located.

Within that compound of Indian Law Institute, the Kiosk in

question is located and hence the question of security of the

Supreme Court because of the existence of that Kiosk is wholly

unjustified.

18. Mr. Dushyant Dave, President of the Supreme Court Bar

Association, submitted before us in support of the appellant.

Mr. Dave contended that there is no threat to the safety and

security of the Supreme Court if the appellant carries on his

business.   On  the  other  hand,  Mr.  R.  Bala  Subramanian,

learned  counsel  appearing  for  the  Deputy  Commissioner

(Security) produced before us a confidential folder containing

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many  messages  received  by  the  Authority  giving  threat  of

exploding bomb blasts in different places.

19. After  giving  our  anxious  consideration  in  the  matter,

although we have sympathy for the appellant, but there are

various  circumstances  justifying  the  refusal  to  permit  the

appellant  to  run  his  business  in  the  kiosk  in  question.

Notwithstanding the constitutional right of a citizen to carry

on business but such right is subject to certain restrictions. It

cannot be disputed that there are certain areas which may be

required  to  keep  free  of  such  types  of  kiosks  for  security

reasons.  The Court cannot direct the administration to allow

such a kiosk even if there is a threat to safety and security.

20. On  the  one  hand,  appellant  has  a  right  to  earn  his

livelihood,  but  on  the  other  hand  there  is  serious  issue  of

safety and security of the premises near the Supreme Court

compound. Hence, the Court has to balance between the two.

The  purpose  involving  general  interest  of  community  as

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opposed to the interest of individual directly or indirectly has

to  be  balanced.  Merely  because  of  the  contention  of  the

appellant and the respondents that after the bomb blasts took

place  in  Delhi  High  Court  compound  in  2011,  no  such

incident happened till date, it cannot be presumed that such

incident will not happen in a near future.  The Court cannot

assume and presume that there is no threat to the safety and

security of the Supreme Court and its vicinity and allow the

appellant to continue the said business.

21. We are therefore of  the considered view that the order

passed by the High Court needs no interference by this Court.

Hence, this appeal is dismissed.

…………………………….J. (M.Y. Eqbal)

…………………………….J. (C. Nagappan)

New Delhi July 29, 2015

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