1. Street traders granted temporary permits by municipal committee — subsequent cancellation of permits and ban on cooked food sale under Section 173, Punjab Municipal Act. (Para 2 , 3 , 4 )
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1967 Supreme(SC) 155
SUPREME COURT OF INDIA
K.N. WANCHOO, C.J.I., V. BHARGAVA AND G.K. MITTER, JJ.
Pyare Lal etc., Appellants
Versus
New Delhi Municipal Committee and another, Respondents.
Civil Appeals Nos. 486 to 492 of 1967,
D/- 20-4-1967.
Advocates Appeared
M/s. Madan Bhatia and D. Goburdhun, Advocates, for Appellants (In all the Appeals); Mr. Bishen Narain, Senior Advocate (Mr. Sardar Bahadur, Advocate, with him), for Respondent No. 1; (In Civil Appeals Nos. 486 to 488 of 1967) and for Respondent (In Civil Appeal No. 489 of 1967); Mr. Sardar Bahadur, Advocate, for Respondent No. 1 (In Civil Appeals Nos. 490 to 492 of 1987); Mr. R. N. Sachthey, Advocate, for Respondent No. 2 (In Civil Appeals Nos. 486 to 488 and 490 to 492 of 1967).
Important Points
Street trading is not a fundamental right under Article 19(1)(g). Municipal authorities possess discretionary power to prohibit such trading on public streets to prevent public obstruction and ensure hygiene, and this power is not contingent upon the framing of specific bye-laws.
Subject
Administrative Law - Municipal Law
Act Referred
Headnote
(A) Punjab Municipal Act - Sections 173, 188 and 56(1)(g) - Prevention of Food Adulteration Act, 1954 - Sections 23, 24 and 25 - Constitution of India - Article 19(1)(g) - Street trading on public streets - Power of Municipal Committee to withdraw permission - Whether bye-laws under Section 188 are necessary to exercise power under Section 173 to stop street trading - No - Section 188 is intended for regulating temporary permissions for specific occasions or construction and not for framing bye-laws to regulate permanent street trading that creates unhygienic conditions (Para 6) - Whether the Prevention of Food Adulteration Act repeals the power of a municipality to prevent the sale of cooked food on public streets - No - The object of the Food Adulteration Act is to prevent adulteration and ensure sanitary production, whereas the power under the Municipal Act is to prevent obstruction to passers-by and the creation of insanitary conditions on public streets (Para 7).
(B) Fundamental Rights - Article 19(1)(g) - Right to carry on trade - Street trading is not a lawful right that cannot be altogether prevented, particularly when such trading creates insanitary and unhygienic conditions in the neighbourhood (Para 13).
Facts of the case:
Appellants were hawkers selling cooked food on public streets who had been granted temporary permits by the municipal authority. The authority later imposed conditions requiring the removal of stalls at night and eventually banned the sale of cooked food due to insanitary conditions and public obstruction. The authority withdrew the permissions under the relevant municipal statute. The appellants challenged this action, claiming a fundamental right to trade and arguing that the authority lacked the power to prohibit the trade without specific bye-laws or that such power was repealed by food safety legislation.
Findings of Court:
The municipal authority has the discretion to withdraw permission for encroachments on public streets to ensure safety and convenience. The requirement to frame bye-laws for temporary permissions does not restrict the power to stop permanent unhygienic trading. The food safety laws operate in a different field from the municipal power to regulate street obstructions and public nuisance.
Issues: Whether the municipal authority could prohibit street trading of cooked food via resolution without framing bye-laws, and whether such a prohibition violates the fundamental right to carry on trade under the Constitution.
Ratio Decidendi: The right of the general public to pass and re-pass along a public street takes precedence over any claim to carry on street trading. Street trading is not a fundamental right that can be exercised in a manner that creates unhygienic conditions or obstructs the public. The power to withdraw permission for encroachments is discretionary and can be exercised to protect public hygiene and convenience.
Result: Appeals dismissed.
(B) Fundamental Rights - Article 19(1)(g) - Right to carry on trade - Street trading is not a lawful right that cannot be altogether prevented, particularly when such trading creates insanitary and unhygienic conditions in the neighbourhood (Para 13).
Facts of the case:
Appellants were hawkers selling cooked food on public streets who had been granted temporary permits by the municipal authority. The authority later imposed conditions requiring the removal of stalls at night and eventually banned the sale of cooked food due to insanitary conditions and public obstruction. The authority withdrew the permissions under the relevant municipal statute. The appellants challenged this action, claiming a fundamental right to trade and arguing that the authority lacked the power to prohibit the trade without specific bye-laws or that such power was repealed by food safety legislation.
Findings of Court:
The municipal authority has the discretion to withdraw permission for encroachments on public streets to ensure safety and convenience. The requirement to frame bye-laws for temporary permissions does not restrict the power to stop permanent unhygienic trading. The food safety laws operate in a different field from the municipal power to regulate street obstructions and public nuisance.
Issues: Whether the municipal authority could prohibit street trading of cooked food via resolution without framing bye-laws, and whether such a prohibition violates the fundamental right to carry on trade under the Constitution.
Ratio Decidendi: The right of the general public to pass and re-pass along a public street takes precedence over any claim to carry on street trading. Street trading is not a fundamental right that can be exercised in a manner that creates unhygienic conditions or obstructs the public. The power to withdraw permission for encroachments is discretionary and can be exercised to protect public hygiene and convenience.
Result: Appeals dismissed.
Legal Category Hierarchy
Advocates:
BISHAN NARAIN, D.GOVERDHAN CHARY, MADAN BHATIA, R.N.SACH, SARDAR BAHADUR SAHARYA
BISHAN NARAIN, D.GOVERDHAN CHARY, MADAN BHATIA, R.N.SACH, SARDAR BAHADUR SAHARYA
Table of Contents
2. Whether municipal committee can ban street trading via resolution without bye-laws — whether Prevention of Food Adulteration Act repeals municipal powers to regulate street encroachments. (Para 3 , 4 , 6 , 7 )
3. Section 173 allows withdrawal of permission to prevent public street obstruction and insanitary conditions — Food Adulteration Act's purpose differs from municipal street regulation. (Para 6 , 7 , 9 , 11 , 12 , 13 )
4. No fundamental right to carry on street trading exists — municipal authorities may prohibit such trade to ensure public passage and hygiene under Section 173, Punjab Municipal Act. (Para 9 , 13 )
5. Appeals dismissed. (Para 14 )
6. Does the absence of bye-laws under Section 188 prevent a municipal committee from withdrawing permission for street encroachments under Section 173?
No. Section 188 is intended to regulate specific temporary permissions, such as those for festivals or construction, whereas Section 173 empowers the committee to prevent encroachments that cause obstruction or unhygienic conditions on public streets. (Para 6 )
7. Does the Prevention of Food Adulteration Act, 1954, repeal the power of a municipality to prevent the sale of cooked food on public streets?
No. The Food Adulteration Act focuses on ensuring food purity and sanitary preparation, while Section 173 of the Punjab Municipal Act addresses the prevention of public street obstruction and general nuisance caused by street trading. (Para 7 )
8. Is there a fundamental right to carry on trade through street trading on public roads?
No. The court held that there is no lawful right to pursue street trading in India, and the public's right to pass and re-pass along public streets prevails over the desire to carry on street trading. (Para 9 , 13 )
Judgement
MITTER, J. :- These are seven appeals by special leave from 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.
2. 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 pressed before the High Court and we will proceed on the basis that as a matter of fact, he 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 the demands of its members for grant of licenses 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 an co-operative society for preparation of edibles and built trolleys of specified designs and agreed to carry on their trade at places allotted, licenses would he 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 22nd July, 1962.
4. The squatters should be required to pay three month s 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".
(c) The last condition would be as suggested by the L. A. in his note dated 20th December, 1963.
7 The selection and allotment of sites would be done by a sub-com
