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
16opposed 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.
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)
Dated;July 29, 2015
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
103.12.2013 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
2the 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
3would 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)
46. 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
5taking 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
6under 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.
710. 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
8High 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.
912. 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)
10“(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
11Commissioner 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
12decision 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:
13“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
14not 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
15many 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
16opposed 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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