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PETITIONER:

MUNICIPAL CORPORATION OF DELHI

Vs.

RESPONDENT:

GURNAM KAUR

DATE OF JUDGMENT12/09/1988

BENCH:

SEN, A.P. (J)

BENCH:

SEN, A.P. (J)

VENKATARAMIAH, E.S. (J)

RAY, B.C. (J)

CITATION:

1989 AIR 38 1988 SCR Supl. (2) 929

1989 SCC (1) 101 JT 1988 (4) 11

1988 SCALE (2)1155

CITATOR INFO :

R 1989 SC1988 (33)

ACT:

Delhi Municipal Corporation Act, 1957--Sec. 320 Bar on

illegal encroachment on public land--Sec. 322--Exercise of

power by Commissioner to remove encroachment. In a Writ

Petition under Article 226 of the Constitution High Court

restrained Corporation from stopping pitching of a stall on

public land--Held High Court could not give sucha direction

contrary to provisions of Section 320 and 322.

%

Precedent--Precedential value of a direction made by the

Supreme Court on a writ petition under Article 32 based on

consent of parties with the reservation that it should not

be treated as a precedent--Precedents sub silentio and

without argument are of no moment--What is binding on an

authority is the principle upon which the case was decided--

Obiter dicta are not binding.

HEADNOTE:

Some persons were plying their business by squatting on

pavement in front of a hospital in Delhi and had put up

stalls or kiosk allegedly on Tehbazari under a licence under

section 321 of the Delhi Municipal Corporation Act, 1957.

The Delhi Municipal Corporation tried to remove them by

demolishing their stalls etc. These persons filed suits in

the Court of Subordinate Judge praying for perpetual

injunction restraining the Corporation from interfering with

their business and/or removing or demolishing any temporary

structures put up by them for plying their trade. The

Subordinate Judge disallowed the plaintiffs’ main claim

seeking a declaration that the Municipal Corporation had no

right or authority to remove the stalls built up by them. He

however held that by virtue of the Tehbazari licence granted

in their favour the plaintiffs had acquired the right to

occupy and carry on business at the suit sites till their

licence was not terminated by the Corporation according to

the procedure laid down in proviso (a)(ii) of Sub-Section of

Section 430 of the Act.

Two of the squatters namely Jamuna Das and his brother

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filed writ petitions in this Court seeking a writ of

mandamus ordaining the Municipal Corporation to allot each

of them a suitable site on pavement in front of the main

gate of the hospital. (Jamna Das & Anr. v.

PG NO 929

PG NO 930

Delhi Administration & Ors., Writ Petition Nos. 981--982 of

1984.) This Court directed that the petitioners be

rehabilitated by the Municipal Corporation by construction

of stalls according to the sketch plan filed by the

Corporation with a further direction that each of them would

be put in possession of one of the stalls. The Court made it

clear that this was a consent order and that the direction

should not be treated as a precedent.

The respondent, who was one of the plaintiffs who had

filed suits in the court of Subordinate Judge, moved the

High Court under Article 226 of the Constitution for a writ

and direction restraining the Corporation from evicting her

without the due process of law. The High Court partly

allowed the writ petition holding that the judgment of the

Learned Subordinate Judge which was a judgment inter partes

had become final not having been appealed from and therefore

the respondent could not be removed from pitching her stall

on the pavement outside the hospital where she was

squatting. Relying on the decision of this Court in Jamuna

Das’ case the High Court gave a