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TMI Blog1988 (9) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... parties with the reservation that it should not be treated as a precedent. It appears that sometime in 1984, the appellant Municipal Corporation of Delhi sought police help to clear the pavement near the OPD gate of the Irwin Hospital, now known as Lok Nayak Jai Prakash Narain Hospital, which is one of the largest hospitals in Northern India, on a complaint made by the Hospital authorities that the pavement-hawkers by setting up their stalls or pitching their wares were causing inconvenience to the ingress or egress of the ambulances besides causing congestion on the pavements and obstructing the free flow of traffic. The Municipal Corporation was satisfied that if the squatters continued to cover pathways meant for pedestrians, a time would come when no room would be left for people to walk on the footpaths. In a police action, the pavements-hawkers were removed from outside the main gate of the Irwin PG NO 933 Hospital in and around the subway of Jawahar Lal Nehru Marg on January 15, 1984. On February 22, 1984, eight of these pavement squatters instituted separate suits in the Court of the Subordinate Judge, II Class, Delhi against the Municipal Corporation seeking the relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. Placing of such a stall at the suit site amounts to encroachment within the meaning of sec. 322 of the DMC Act which stall can be removed at any time by the defendant MCD without notice. In this light the plaintiffs have no right to claim an injunction against demolition or removal of any stall or other structure if posted or placed or affat the same time defendant MCD cannot remove the plaintiffs nor interfere with their business at the suit site in any other manner without terminating their licence to occupy the said sites in accordance with the procedure contained in sec. 430(3) of DMC Act." The learned Judge accordingly partly decreed the plaintiff's claim to the extent indicated hereafter: "Consequently, all these suits are partly decreed to the effect that the defendants are restrained permanently from removing the palintiffs from the suit sites without terminating the Tehbazari permission granted in their favour in accordance with the provisions of s. 430(3) of the DMC Act. The prayer for injunction against demolition or removal of the stalls of the plaintiffs is disallowed." It therefore follows that the learned Subordinate Judge accordingly disallowed the plaintiffs ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough the Municipal Corporation had rehabilitated the said 10 squatters by allotment of stalls to them, despite repeated applications there was no redressal of the wrong done to them inasmuch as the Municipal Corporation had arbitrarily and without any rational basis, denied them such facility. Further, it was alleged in that case that the father of the petitioners had been occupying the site admeasuring 6 ft. x 4 ft. on tehbazari licence since the year 1947 till his death in 1975 and thereafter the petitioners were permitted to occupy the same on similar terms but the Municipal Corporation illegally caused their removal with police help. It was averred that the Municipal Corporation could not take recourse to its power of eviction under s. 322(a) of the Act without terminating the tehbazari licence in their favour and without following the procedure prescribed by proviso (a) to s. 430(3) of the Act. Several adjournments were taken in an effort to find a solution to the problem by learned counsel appearing for the Municipal Corporation. Eventually, Desai, J. speaking for a Bench of two Judges by his order dated March 29, 1985 made a direction for rehabilitation of the petitioners. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly. We find it rather difficult to sustain the judgment of the High Court. The learned Judges failed to appreciate that this Court in Jamna Das' case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent. It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc. contrary to s. 320 of the Act, as a condition precedent to the exercise of its powers under s. 322 of the Act for the removal of such encroachment on any public street, footpath or pavement. That apart,the High Court could not have made the impugned direction contrary to the provisions contained in ss. 320 and 322 of the Act. S. 320(1) in terms creates a statutory bar against illegal encroachment on any portion of a public street. It provides that "No person shall, except with the permission of the Commissioner granted in this behalf, erect or set up any booth or other structure whether fixed or movable or whether of a permanent or temporary nature, or any fixture in or upon any street etc". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d continuance at that place under the specious plea that they constitute an obstruction to easy access to hospitals. A little more space in the access to the hospital may be welcomed but not at the cost of someone being deprived of his very source of livelihood so as to swell the rank of the fast growing unemployed. As far as possible this should be avoided which we propose to do by this short order." This indeed was a very noble sentiment but incapable of being implemented in a fast growing city like the metropolitan City of Delhi where public streets are overcrowded and the pavement squatters create a hazard to the vehicular traffic and cause obstruction to the pedestrians on the pavement. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could make the order which it did; nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority. At the end of the day, we must make a mention that Shri Verghese, learned counsel for the respondent made a valiant effort to bring into play the principles laid down by this Court in Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors., [1985] 3 SCC 545 and Bombay Hawkers' Union & Ors. v. Bombay Municipal Corporation & Ors., [1985] 3 SCC 528. We are afraid, we cannot permit the question to be raised for two reasons. In the first place, no such point was taken in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or business so as to cause nuisance, annoyance or inconvenience to the other members of the public", and further that "All public streets are meant for the use of the general public and cannot be used to facilitate the carrying on of private trade or business". We feel that the Municipal Corporation authorities in consultation with the Delhi Development Authority should endeavour to find a solution on the lines as suggested in Bombay Hawkers' Union i.e. by creating Hawking and Non- Hawking Zones and shifting the pavement-squatters to areas other than Non-Howking Zones. The authorities in devising a scheme must endeavour to achieve a twin object viz., to preserve and maintain the beauty and the grandeur of this great historic city of Delhi from an aesthetic point of view, by reducing congestion on the public streets and removing all encroachments which cause obstruction to the free flow of traffic, and rehabilitate those unfortunate persons who by force of circumstances, are made to ply their trade or business on pavements or public streets. In the result, the appeal must succeed and is allowed. The judgment and order passed by the High Court are set aside and the writ petition file ..... X X X X Extracts X X X X X X X X Extracts X X X X
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