CUSTODIAN OF EVACUEE PROPERTY PUNJAB & ORS.

A v .

.JAFRAN BEGUM April 20, 1967

[K. N. WANCHOO, C.J., V. BHARGAVA AND G. K. MITTER, JJ.) B

Administration of Evacuee Property Act (31 of 1950), s. 4~Decision by Custodian that property was evacuee propertyuit in Civil Court challenging decision-If maintainable.

A person who was in possession of a house in India, migrated to Pakistan. Notice was issued to his son under s. 7 of the Administra• tion of Evacuee Property Act, 1950, and after hearing him the Deputy c Custodian declared the house to be evacuee property. The respondent, who was the wife of the evacuee and on whom the notice under s. 7 of the Act was not served, started proceedings before the OJstodian, claiming that the owner of the house had executed a will bequeathing the property to her and so the property could not be declared evacuee property.

When she failed before the authorities constituted under the Act, she filed a suit in the civil court basing her case on the will and prayed for a permanent injunction restraining the authorities under the Act from D evicting her from the house.

On the question whether the suit in the civil court was maintainable, the High Court held that the question whether a certain person had or had not become an evacuee was determinable only by the authorities under the Act, but the determination of a complicated question of law relating to title by such authorities, if such a question . arose, was not final and could be reopened in the civil court; that the suit in the present E case did raise such a question and therefore, the civil court bad jurisdiction to entertain it.

In appeal to this Court,

HELD : Two questions will arise in every case where the authoritv has to declare under s. 7 of the Act whether a property is evacuee prOperty, namely, (i) whether a particular person has or has not become an F evacuee, and (ii) whether the property in dispute belongs to him. There is nothing in the section which shows that the authority under the Act (being a quasi judicial authority) cannot enter into all questions, whether of fact or law, simple or complicated, in deciding whether certain property belons to an evacuee; nor does his jurisdiction depend upon a correct finding on a collateral fact.

The power to decide all these questions could not be denied on the ground that . the authority under s. 7 may not be an experienced judicial officer, because, his decision is not G final and is open to appeal under s. 24 and to revision under s. 27 by authorities who are experienced judicial officers. Havin$ thus provided a complete machinery for adjudication of all claims with respect to evacuee property, under ss. 7, 24 and 27, the Act, by s. 28, gives finality to the order of the authorities mentioned therein and lays down that such orders shall not be called in question in any court by way of appeal or revision or in any original suit, application or executio!' reing. The H Legislature has gone further and expressly bai:ed the 1und1ction of the civil and revenue courts under s. 46 to entert.ain or ad1ud1cate upon imy question whether any property or any right to or interest in any J>roperty is or is not evacuee property. Further, s. 4(1) of the Act provides that

the Act overrides other laws and would thus override s. 9 of the Civil Procedure Code.

Jn these circumstances, . s. 46 is complte _bar to the jurisdiction of the Civil Court to entertain the. smt or a~1ud1cate un the question whether the property in dispute or nght to or mterest. th!'rm is or is not evacuee property. But ""· 28 and 46 cannot bar the 1unsd1ction of the High Court under Art. 226 for, that is a power conferred by the Constitution. [740 G-H; 742 A, E, F-G; 743

A-B, D:-G,

744 A, B-Fl

S. M. Zaki v. The State of Bihar, A.l.R. 1953 Pat. 112 and Khalil' Ahmad Khan v. Malka Meher Nigar Begum, A.I.R. All. 362, approved.

Observation at page 934 in Namazi v. Deputy Custodian Evacuee Property, A.I.R. 1951 Mad. 930, disapproved.

[The question whether the civil courts have jurisdiction to ami.ne into cases where the provisions of the Ac.t have not _been .comphed with. or the statutory tribunal has not acted m confonn1ty with the fundamental principles of judicial procedure, not decided.] [745 D-E]

Abdul Majid Haji Mohmed v. P. R. Nayak, A.I.R. 1950 Born. 440, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 772 of 1964.

Appeal by special leave from the judgment and order dated May 28, 1962 of the Punjab High Court in Regular Second Appeal No. 1819 of 1959.

K. S. Chawla and R. N. Sachthey, for the appe)lants.

The respondent did not appear.

The Judgment of the Court was delivered by Wanchoo, C.J. In this appeal by special leave the only question that arises is the interpretation of s. 46 of the Administration of Evacuee Property Act, No. 31 of 1950, (hereinafter referred to as the Act) . Brief facts necessary in that connection are these. The house in dispute is situate in Malerkotla and belonged to one Muradbux who died sometime in 1922. In 194 7, the house was in possession of Muradbux's son, Mohd. Rafiq and Muradbux's widow, Jafran Begum.

Sometime after partition, Mohd. Rafiq migrated to Pakistan. Thereafter notice was issued under s. 7 of the Act to Dildar son of Mohd. Rafiq to show cause Gwhy the house be not declared as evacuee property. No notice was however issued to respondent Jafran Begum. It seems that Dildar appeared before the Deputy Custodian and admitted that' his father had migrated to Pakistan.

So on June 7, 1952, the house was declared to be evacuee property. No appeal was taken against this order which thus became final. However, on March 2, 1954, the respondent filed an application before the Custodian claiming that by virtue of a will made in her favour by Muradbux H

in 1918 he had bequeathed the house to her and therefore she was the owner of the entire property. On July 3, 1954, the Custodian

held that under Mohammedan law a person could not will away more than one-third of his property and as it had not been proved that the house willed away by Muradbux was one-third of his entire property or less, the will could not be acted upon. In consequence

lhe application was dismissed. It seems that thereafter the res• pondent made some representations to the then Goven:iment of PEPSU but it is not known what happened thereto. On Septem .ber 10, 1956, the respondent applied for review of the order of the Custodian dated July 3, 1954. That review application wag dismissed on April 5, 1957 mainly on the ground that it was belated. The respondent then went in_ revision to the Deputy Custo dian General but her revision was dismissed on September 27.

1957. Thereafter on December 3, 1958, the Deputy Custodian General suo motu reviewed the order of September 27, 1957 holding that the respondent as the widow was entitled to one-eighth share under Mohammedan law. He therefore held that only seven- eighths share of the house became evacuee property and one-eighth share of the respondent was not evacuee property.

In the meantime, the suit out of which the present appeal has .arisen was filed by the respondent on March 3, 1958. She based her case on the will of Muradbux already referred to and prayed for a permanent injunction against the Custodian Evacuee Property Punjab and others barring them from evicting her from the house in dispute. The suit was dismissed on December 31, 1958 by the trial court holding that the civil court had no jurisdiction to decide the matter in the face of s. 46 of the Act. The :trial court decided the other issues also but we are not concerned with them as in the present appeal only the question of jurisdiction of civil courts to entertain the suit has been raised.

The respondent then went in appeal to the Additional District .Judge.

The Additional District Judge held relying on certain decisions of the Punjab High Court that civil courts had no jurisdiction to entertain a suit of this nature and therefore dismissed the appeal. He also decided other points but we are not concerned with them.

The respondent then went in second appeal to the High Court.

The learned Single Judge who first heard the appeal referred it for decision to a larger Bench. The matter then went before a Division Bench which noticed that there was some conflict between certain decisions of the Punjab High Court and therefore referred the matter to a larger Bench. In consequence a Bench -of three Judges was constituted to decide whether civil courts ad jurisdiction in such a case. The learned Judges were of the view that when a question arose whether any property was or was not evacuee property, two matters had to be decided namely-(i) -whether the particular person had or had not become evacuee and

CUSTODIAN v. JAFRAN BEGUM tWanchoo, C.J.) 739'

(ii) whether the property in dispute belonged to him.

On the first question they were of e view a~ the matter coul~ only be determined by the Custodian and ClVll courts had nothmg to do with it. On the second question they_ were of the view that it might involve a simple question of fact or a complicated ques tion of law i.e. a question of title. They finally decided that the question whether certain person was or was not evacuee was determinable by the Custodian, but. the determination of the Custodian on a question of title if such, question arose was not final and the question of title could be reopened in the civil court and was to be finally determined by such court. They limited the above decision by observing that a mere assertion of claim to any property did not raise a question of title for such assertion might rest on a simple allegation of fact which could be finally determined by the Cqstodian and that the question whether in a particular case a question of title did or did not properly arise had to be decided on the faots of each case and no general rule about it could be usefully laid down. On this view of the law they held that in the particular case before them a complicated question of law arose and therefore the suit was competent and the civil courts had jurisdiction to entertain it. Thereupon the appellant obtained special leave from this Court and that is how the matter has come before us.

There have been a large number of cases in the Punjab High Court on this question. We do not however propose to go into them in detail, for it appears to us that the view taken in some of them conflicts with the view taken in others. That is the reason why a Bench of three Judges was constituted to go into thematter

and we have already set out their decision.

These cases are : F. Sahib Dayal v. Assistant Custodian of Evacuee Property( 1); Firm Pariteshah Sadashiv v. Assistant Custodian Evacuee Property('); Duni Chand v. Ibrahim('); Kai/ash Chand v. Addi. Custodian General('); Narendra Kumar v. Custodian General("); C!istodJan General v. Harnam Singh("); Ram Gopal v.

Banta Smgh( ); Parkash Chand v. Custodian Evacuee Property(8 );

Gurf!Drhad, v. Asst. Custodian Genera/(9 ); and Custodian Gneral

~· R1kh1 .Ram('0 ). Some of these cases arose on writ petitions filed

in the Hi.gh Court. A distinction must be made between jurisdiction o_f the HiJl~ Court under Art. 226 of the Constitution and jurisdicti?n of CIVIi courts about entertaining civil suits in matters of this kmd. Whatever may be the interpretation of s. 46 to which we shall address ourselves presently, the jurisdiction of the High Court under Art. 226 of the Constitution is not and cannot be

(I) (19S2) S4 Punj. L.R. 318,

(2) (19S2) S4 Punj. L. R. 468.

(3) (19s.\) S6 Punj, L.R. 2S7.

(4) (1955) 57 Punj. L.R. 440.

(5) A.l.R. 1956 Punj. 163. (6} A.l.R. 1957 Punj, 58.

(7) (1958) 60 Punj L.R. 307,

(8) (1958) 60 Punj. L.R. 592.

(9) (19'9} 61 Punj. L.R. 137. (l"l (1959) 61 Punj. L.R. 91S.

740 SUPRll:tdE COURT REPORTS

[1967] 3 S.C.R.

affected thereby.

Other cases arose out of suits and two views seem to have prevailed in the High Court, one holding that suits of this nature were barred while the other view was that where a question of title arose, jurisdiction of civil courts was not barred under s. 46 of the Act.

It is necessary to consider the scheme of the Act before we actually decide the question posed before us.

As is well known the. Act had to be passed in order to deal with the enormous problem which arose on the division of the Punjab and large scale niigration that took place from one side of the Punjab as it was before 194 7 to the other side. Large numbers of Muslims migrated to that part of the Punjab which is now in Pakistan leaving their properties in that part of the Punjab which is now in India.

It was to deal with this problem that the Act was passed, though we may add that there were earlier laws dealing with the same matter, which were all repealed by the Act, wherever it was extended.

The Act defines "an evacuee" and also "evacuee property". "Evacuee property" is defined as meaning any property of an evacuee whether held by him as owner or as a trustee or as a beneficiary or as a tenant or in any other capacity. The definition also includes certain properties and excludes e¢rtain other properties, but we are not concerned with that. Section 4 of the Act which is important provides that "the provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in" any instrument having

1 effect by virtue of any such law". Sections 5 and 6 provide for appointment of Custodian-General, Deputy Custodian- General, and Assistant Custodian-General, Custodian, Additional Custodian, Deputy Custodian and Assistant custodian whose duty it is to administer the Act. Section. 7 empowers the Custodian to give notice, where. he is of opinion tbat certain property is evacuee property, to the person interested and after holding such inquity into the matter as the circumstances of the. case permit, pass an order declaring any such property to be evacuee property. It is clear in view of the definition of "evacuee property" to which we have already referred, that two questions will arise in every case where the Custodian has to declare whther a property is evacuee property. These two questions are : ( i) wethcr a particular person has or has not become an evacuee and .( 11) whether the property in dispute belongs to him. Both these questions have to be decided under s. 7 of the Act by the Custodian. Under s. 8 any property declared to be evacuee property under s. 7 vests in the Custodian from certain dates with which we are not concerned. Section 9 gives power to the Custodian to take possession of evacuee property vested in him.

Section 10 provides for powers and duties of the Custodian generally. Then follow certain sections which gi:ve special powers to the Custodian with respect to the management of the property to which it is unnecessary to refer. Section 16 provides for restoration of evacuee property by the Central Government. Section 24 inter a/ia gives a right to a person aggrieved by an order made under s. 7 by the Custodian to appeal. Section 27 gives power of revision to the Custodian- General either on his own motion or orr application made to him to call for the record of any proceeding in order to satisfy himself as to the legality or propriety of any order passed therein and to p!ISs such order in relation thereto as he thinks fit. Section 28 which is also important reads thus :

"Save as otherwise expressly provided in this Chapter every order made by the Custodian-General, Custodian, Additional Custodian, Authorised Deputy Custodian, Deputy Custodian or Assistant Custodian shall be final and shall not be called in question in any court by way of appeal or revision or in any original suit, application or execution proceeding."

Section 28 thus clearly bars the jurisdiction of any court to entertain an , original suit with respect to an order passed by the authorities mentioned therein.

Section 46 with which we are particularly concerned is in these terms :

"Save as otherwise expressly provided in this Act, no civil or revenue court shall have jurisdiction-

(a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or ( c) to question the legality of. any action taken by the Custodian-Genera! or the Custodian under this Act; or ( d) in respect of any matter which the Custodian General or the Custodian is empowered by or under this At to determine."

A bare reading of s. 46 shows how widely it is worded and how clearly it bars the jurisdiction of civil and revenue courts in ml!tters specified therein.

A perusal of these provisions in our opinion shows that the Act is a complete code in itself in the ml)tter. of dealing with evacuee property.

As observed by this Court Ill Ram Gopa/ Reddy v. Additionttl Custodian('), "the

ct thus provides a eomplete machinery for a person interested m any property to put forward his claims before the authorities

.comtent to deal .. with the. question and to go in appeal and

in revision if the person interested feels aggrieved. Having provided this complete machinery for adjudication of all claims with respect to evacuee property, the Act, by s. 46, bars the jurisdiction of civil or revenue courts to entertain or adjudicate upon any question whether any property or any right to or interest in any propenty is or is not evacuee property".

It is true that the Act is concerned with the administration of evacuee property and a large number of its provisions deal with actual administration of such property. But before the authorities under the Act take on: the duties of administration of evacuee property some one has to detennine what properties are evacuee properties of which the authorities provided under the Act can take over administration. The Act itself provides a machinery for determining what properties are evacuee properties. Section 7 is that provision which gives power to the Custodian to determine what properties are evacuee properties.

The Custodian determines that .after notice to persons interested and after such enquiry as the circums•ances of the case pennit. It is thereafter that the Custodian declares certain propertY to be evacuee property and on such declarat:J.on the property vests in the Custodian under s. 8.

Then we have the provision of appeal under s. 24 and revision under s. 27 of the Act so that any person aggrieved by the order of the Custodian has two forums open to him to ventilate his grievance. Clearly the Custodian under s. 7 acts as a quasijudicial authority and so does the authority hearing appeals under s. 24 and the Custodian-General hearing revisions under s. 27.

Thus all persons interested get a hearing under s. 7 and all persons aggrieved have a right of appeal under s. 24 and can go in revision. under s. 27. That is why s. 28 provides that every order made by the authorities indicated therein shall be final and shall not to be called in question in any court by way of appeal, revision or in any original suit, application or execution proceeding. The legislature was not however satisfied merely by giving finality to the orders of the authorities mentioned ins. 28; it went on to bar specifically the jurisdiciion of civil and revenue courts in three matters indicated in s. 46. Under cl. (a) of s. 46, jurisdiction of civil and revenue courts is expressly barred and they are forbidden to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property.

Under s. 7 the Custodian has to detem1ine whether certain property is or is not evacuee property. To determine that he is to pnd out whether a: particular person is or is not an evcuee.

Having found that, he is to find whether the property in dispute belongs to that person. If he comes to the conclusion that the property belongs to that person, he declares the property to be evacuee property. Now there is nothing in s. 7 which shows that

the Custodian cannot enter into all questions whether of fact or of law in deciding whether certain property belongs to 11n evacuoo.

Ihere is no reason to hold that under s. 7 the Custodian cannot dccidi: what are called complicated questions of law or question~ of title. It is difficult to see how the Custodian c.an avoid deciding a question of title if it is raised before him in p1'0ceedings under s. 7. Nor do we find it possible to make a distinction between questions of fact and questions of law that may arise befor~ the Custodian under s. 7. If he has the power to decide ques tions of fact. which the learned Judges in the order under appeal , ccm to concede, we do not see why he should not have the power of deciding questions of law also. Further if the learned J Ltdges in the order under appeal arc correct in saying tha.t if a question of title rests on a simple allegation of fact it can be finally determined by the Custodian, we cannot sec on what reusoning, it can be said that where a question of title depend\ on a question of law it cannot be finally decided under s. 7 by the Custodian.

His power under s. 7 is to decide whether certain property is evacuee property or not and there is nothinp; in s. 7 which restricts that power to deciding only questions of fact ..

There c•in in our opinion be no escape from the conclusion that under s. 7 when deciding whether certain property is evacuee property or not. the Custodian has to decide all questions, whether of fact or law, whether simple or complicated, which aris~ therein.

That power cannot be denied on the ground that the Custlldian, which term for these purposes includes the Dcput~ Custodian or the Assitant Custodian may not be an experienced .iudicial oftkcr and therefore may not be in a position to decide questions of title. His decision is not final and is open to. appeal under s. 24 and to revision under s. 27. lf he makes a mistake the two higher authorities who, we arc told, have always been recruited from experienced judicial officers can correct him. lt is after the matter has been decided under s. 7 and s. 24 if an appeal is filed and under s. 27 if a revisilln is filed, that s. ?.~ gives finality to orders of the authorities mentioned therein and lays down that such orders shall not be called in question in an~ court by way of appeal or revision Ol' in any original suit, application or execution proceeding. As we have already said, the legislature was not satisfied by merely conferrini: finality on such orders; it went further and expressly barred the jurisdiction of civil and revenue courts under

s. 46 to entertain or adjudicate upon any question whether an~

property or any right to or interest in any property is or is no( evacuee property. These words arc very wide and clear and bar t.hc courts from entertaining or ajudicating upon any such que'- tron.

Where therefore the qucstton whether certain propcrtic' ; ire evacuee properties has been decided under s. 7, etc. whcthe; that decision is based on issues of fact or issue~ of law, th~ jurisdicvi Sllp. CJ.'67 . 4

tion of courts is clearly barred under s. 46 (a). It is difficult to sec how a distinction can be drawn between decisions under s. 7 based on questions of fact and decisions based on questions of law. The decision is made final whether based on issues of law or of fact by s. 28 and s. 46 bars the jurisdiction of civil and revenue courts in matters which are decided under s. 7 whatever may be the basis of decision, whether issues of fact or of law and whether simple or complicated.

It may be added that the only question to be decided under s. 7 is whether the property is evacuee property or not and the jurisdiction of the Custodian to decide this question does not depend upon any finding on a collateral fact. Therefore there is no scope for the application of that line of cases where it has been held that wt.ere the jurisdiction of a tribunal of limited jurisdiction depends upon first finding certain state of facts, it cannot give itself 1urisdiction on a wrong finding of that state of fact. Here under s. 7 the Custodian has to decide whether certain property is or is not evacuee property and his jurisdiction does n.ot depend upon any collateral fact being decided as a condition precedent to his

assuming jurisdiction. In these circumstances, s. 46 is a complete bar to the jurisdiction of civil or revenue court~ in any matter which can be decided under s. 7. This conclusion is reinforced by the provision contained in s. 4 ( 1) of the Act which provide' that the Act overrides other laws and would thus override s. 9 of the Code of Civil Procedure on a combined reading of ss. 4. 28 and 46.

But as we have said already, s. 46 or s. 28 cannot bar the jurisdiction of the High Court under Art: 226 of the Constitution, for that is a power conferred on the High Court under the Constitution.

It now remains to refer to certain cases of .other courts in this connection. In M. S. Namazi v. Deputy Custodian of E. P.('), the Madras High Court was mainly considering the constitutional validiey of the Act.

At p. 934, however, Rajamannar C. J. made t, he following observations :-

"There is however one thing about which I am not quite clear. The Ordinance no doubt declares the order of the Custodian declaring any property to be ev'aciiee property as final. That might be so in one sense, i.e., if any property belongs to a person who has been declared to be an evacuee within the meaninr of the definition in the Ordinance, then the Custodian's order would be final. But, does the finality amount to an adjudication on title in case there is any dispute?

Take for instance the case. where a property is declared to be evacuee property on the assumption that it belongs to A who is an evacuee. Does it mean that some

(I) .4.I.R. 1951 Mad. 930.

JI •

CUSTODIAN v. JAFRAN BEGUM (Wm1clroo, C.J.) 745

one else cannot say that the property really does not belong to the evacuee but belongs to himself who is not an evacuee? I am inclined to hold that the order of the Custodian or the notification under s. 7 of the Ordinance is not final, in case of disputed title."

These observations themselves show that the learned Chief Justice was not finally deciding the matter for the question did not directly arise before him. He does not seem to have considered the matter in the light of s. 4 and s. 46 of the Act. In any case in view of what we have said above these observations cannot be accepted as laying down correct law.

In Abdul Majid Haji Mohmed v. P. R. Nayak,(') the main question for consideration was again the constitutional validity of the Act. That was a case which arose on a writ petition. As we have already said,. s. 46 cannot bar the jurisdiction of th~ High Court under Art. 226. But during the course of the judgment, Chagla C. J. referred to the decision of the Privy Council in The Secretary of State v. Mask & Co.(') and observed that it was well settled that "even if jurisdiction of courts is excluded. civil courts have jurisdiction to exmnine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure". We do not think it necessary to go into that question in the present appeal, for no such facts have been alleged in the present suit which would bring it within the ratio of the decision in Mask & Co.'s case('). Normally jurisdiction of civil courts to entertain or adjudicate upon such question relating to evacuee properly would be barred under s. 46; the question whether in some extreme circumstances civil courts may have jurisdiction inspite of s. 46 need not be decided just now.

However we may add that in Firm of /l/11ri Subbayya Cheuy v.

State of Aml/Jra Pradesh(') this Court observed at p. 763 t\wt

the observations in Mask & Co.'s case(') were in some respect> loo widely stated.

The next case to which reference may be made is S. M. 7aki

v. The State of Bi/tar('). There the question was whether the

property was evacuee and the court held that the Act had provided adequate remedies and that s. 46 must be construed tomean that the jurisdiction of a civil or revenue court was ousted even if the Custodian had wrongly decided that any property was an evacuee property. The distinction between those cases where a collateral fact is to be decided before a tribunal of limited jurisdiction assumes jurisdiction and those cases where the tribunal has to decide the whole matter itself was rcfered to and

(I) A.l.R. 1951 Bom. 440.

(3) [t9M] I S.C.R. 7.12 .

(2) A.t.R. 1941 P.C. 105.

14) 1\.l.R. 1953 Pat. 112.

7 I l~ SL'l'RHrn COURT REPORTS [1967] 3 s.c.R.

Rumaswam i J. (as he the11 was) l'ightly held that under s. 7 the whole nrntte1 has to be decided by the Custodian and there was no question of the decision of any collateral fact os a condition

pr~•cdcnt to assumption of jurisdiction by the Custodian.

The last case to which reference may be made is Kl1a/il Ahmad Khan v. Malka Mehar Nigar Beg11m( 1). The questian

there was somewhat different, namely, whether s. 46 bars the jurisdi9tion of the civil court in a .pending matter. The majority of 1be Judges in that case observed that in a case where a matter had been adjudicated upon in accordance with the provisions of the Act it might not be possible for courts to interfere by reason of the provisions of s. 46 of the Act.

This case therefore to some extent is in line with the view we have taken.

On a careful consideration therefore of the authorities cited before us, we arc of opinion that generally speaking the juris diet ion of the civil or revenue court is barred under s. 46 and no such court can entertain any suit or adjudicate upon any ques tion whether ;1 particular property or right to or interest therein is nr is not evacuee property.

We therefore allow the appeal :ind hold that in the view we have taken the suit was not main

t•iinable in the civil court. The matter will now go back to the Single Judge of the High Court to, pass order in confonnity with

th~ view we have expressed. As the respondent has not appeared in this Coutt we pass no order as to costs.

V.P.S.

Appeal allowed.

(lJ A.l.R. 1%4 All. ~6:.

JAFRAN BEGUM

April 20, 1967

K. N. WANCHOO, C.J.

V. BHARGAVA

G. K. MITTER, JJ.

Administration of Evacuee Property Act

s. 4

s. 7

Evacuee Property Act, 1950

s. 7

s. 7

s. 7

s. 24

s. 27

ss. 7, 24 and 27

s. 28

s. 46

s. 4(1)

s. 9

s. 46

Art. 226

K. S. Chawla

R. N. Sachthey

Wanchoo

s. 46

Malerkotla

Muradbux

Mohd. Rafiq

Jafran Begum

Pakistan

s. 7

Dildar

Jafran Begum

June 7, 1952

2, 1954

Muradbux H

July 3, 1954

PEPSU

Septem .ber 10, 1956

April 5, 1957

September 27.

1957

December 3, 1958

March 3, 1958

Custodian Evacuee Property Punjab

December 31, 1958

s. 46

Punjab High Court

Art. 226

s. 46

Art. 226

s. 46

Punjab

India

Section 4

Sections 5 and 6

s. 7

s. 8

s. 7

Section 9

Section 10

Section 16

Central Government

Section 24

s. 7

Section 27

Section 28

Section 28

Section 46

s. 46

s. 46

Section 7

s. 8

s. 24

s. 27

s. 7

s. 24

s. 27

s. 7

s. 24

s. 27

s. 28

s. 46

s. 46

s. 7

s. 7

s. 7

s. 7

s. 7

s. 7

s. 7

s. 7

s. 7

s. 24

s. 27

s. 7

s. 24

s. 27

s. 46

s. 7

s. 46

s. 7

s. 28

s. 46

s. 7

s. 7

s. 7

s. 46

s. 7

s. 4

s. 9

the Code of Civil Procedure

ss. 4

s. 46

s. 28

Madras High Court

Rajamannar

s. 7

s. 4

s. 46

s. 46

Art. 226

Chagla

Mask & Co.

s. 46

s. 46

s. 46

Rumaswam

s. 7

s. 46

s. 46

s. 46


PYARE LAL ETC.

1.

NEW DELHI MUNICIPAi~ COMMITTEE & ANR.

April 20, 1967

[K. N. WANCHOO. C.J., V. BHARGAVA AND G. K. MITTER, JJ.]

1'1111j11b Municipll/ Act 1911 (3 of 1911), s.1, 173, 188-Power to regult1te sale of edibles on public s1rects-St1eet vendors 111/iether have fruulr11ne111al right to carry an the{r 1rade-Food Adt1lteratio11 Act, 1954 mu/ R11/e.1" mnde tliere1111dc1"-T/ie1r <'fleet on powers under s. 17) of .lfo11idp11/ Act.

The petitioners were vendors of polulo chops unJ other edibles which 1hcy sold on public streets. The New Delhi Municipal Commiltce Issued them licences for •omc time and later on tried to aivc them nltcrnntil'o 'ite.1 for cnrryin~ on their tru<le.

Flnnlly however on 30th April 19~5 ir pn'9ed 11 resolution hunnln' l'hc nlc uf cooked edibles on public strt•.

The vendors flied u petition tor writ in tho Hih Court which fnllcd. With

specinl lc:wc they uppc:ilcd to this Court.

1t wn1 urged on bchnlf of the appellants that : Ii) in the ab:!cne< "f hyc-Juws framed under s. 188 of the Punjab Municipal Act the Municipul Committee had 110 power under s. 173 of the Act to prohibit !'heir rrude; (ii) After the passing of the Prevention of Food Adulteration Ac!,

1954 the powers under s. l 73 could not he used to regulate the sak of food from the purity aspect; (iii) the power of rhe Municipality under s. 173 \VUS only to rcgut11c the trade but it coulll not he used to contravene the fund<1mcntnl right of the petitioners to carry on their husi ..

ncs.

HELD : (i) The powers of !he Municipality under s. 173 to ; i!low encroachments on public street. and to permit sale of food or stalls to he sci up was meant for special occasions like festivals, etc. Seclion 188 wa• not designed for !he purpo•c of frnming hyc-luws to rcgulnlc the condition' on which persons like the pclitioncrs could he nllowcJ to carry on lrndc on puhlic strc'Cls and thus crente permanent unhygienic con<Jilions. This should never huve hccn permitted by the nrnnic1p"lity.

17.13 Hi

(ii) The object of the Food Adulteration Act wus that food which the public would buy wus prepared packed nnd stored under sanitary conditions so a< not to he injurious to the health of the people consuming it. The rules made thereunder would override rul"' or bye-luws made hy " municipulity only if they covered the sumc flcld.

Under s. 173(!) of the Punjab Municipal Act. however. it was open to the Municipal C'ommiuec to take steps to prevent sale of any cooked fotid ho\\evl!r pure if the $<lie thereof on pubJic streets would offer ohstruction to passers-by or create insanitary conditions. 1755 D-Fl

(iii) Out of symoathv for the meet hawkers and squatters the N.D.M.C'. had permilled the continuance of the trade for a long time.

Hut no objcc1 ion could he taken to their exercise of power under s. 173 Of the Pun/"ab Municipal Act to eradicate the evil, The power was conllncJ mere y to pmcnting obstruction to traffic.

Every person has a right to P"'' and rcpass along a public slreet. But he cannot be beard to say that he has a fundamental right to enrrv on street trading nnd particulnrly in a manner which is hound to create in•anitary and unhygicne C<>nditions in the ncighhourhood. 1758 A-Ill

.--

Roberts v. Hopwood, [1925] A.C. 578, Pyx Granite Co. v. Ministry of Rousing, [1958] 1 All E.R. 625, C. S, S. Motor Service v.

Madras Sr.1te, A.I.R. 1~3 Macl. 279 and Westminister Corporation v. London

and North Western Railll'ay [1905] A.C. 426, referred to.

CIVIL APPEi.LATE JuR1so1cnoN : Civil Appals Nos. 486- 492 of 1967.

Appeals by special leave from the orders dated August 4. 1966 of the Punjab High Court, Circuit Bench at Delhi in Letters Patent Appeals Nos. 84-D, 70-D, 72-D, 73-D, 71-D, ~5-D and 79-D of 1966 respectively.

Madan Bhatia and D. Gob1ml/1un, for the appellants (in all the appeals).

Bishan Narain and Sardar Bahadur, for respondent No. 1 (in C. As. Nos. 486-488 of 1967) and the respondent (in C.A. No. 489 of 1967).

Sardar Bahailur, for respondent No. 1 (in C. As. Nos. 490- 492 of 1967).

R. N. Sachthey, for respondent No. 2 (in C. As. Nos. 486- 488 and 490 to 492 of 1967).

The Judgment of the Court was delivered by .

Mitter, J.

These are seven appeals, by special leave, from a 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.

The facts in all these appeals. bear a close resemblance anJ 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 hi; right to carry on his trade at the site referred to in parngraph 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 hav~ been carrying on his trade at the si\)Tte site from before 1950 He beci\ITle 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

1he demands of its members for grant of licences and other facilities by the said Municipal Committee. Reference is made in the petition to assurances said to have been given by the Pre , ident and VicePresident 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 >quatters formed themselves into a co-operative society for preparation of edibles and built. trolleys of specified designs and

agreed to carry on their trade at places allotted, licences would be 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 1he 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 5quat ters and stall-holders within the area of the New Delhi Municipal Committee who had been squatting or holding stalls since 1957

v. ould 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 \I unicipal Committee passed a resolution for the grant of licences 10 these squatters. The relevant portion of the same is as follows:-

" l. 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 com- F mittee 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 22·7-1962.

4. The squatters should be required to pay three G )llonths' 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 os suggested by A the L.A. in his note dated 20-12-1963.

7. The selection and allotment of sites would be done by a sub-committee consisting of P.M.C., S.V.P. and J.V.P."

The petitioner was granted a licence to run his potato chops trade at a monthly fee of Rs. 25 and he was allotted a specific >ite mentioned earlier.

Sometime in July 1964 the respondent- Committec sought to impose a condition to the effect that al i hawkers/ squatters should remove their stalls every day after bUnset and re-cstublish them after sunrise. Various stall-holder., challenged the aforesaid conditio.n as unreasonable by way of writ petitions and civil suits. Thereupon, the Committee stoppeJ uccepting licence fee from these squatters/hawkers.

Ultimately most of them withdrew their cases pending in court on ass11rnnc~

being given that they would not be disturbed in their trade. There <1ftcr, the New Delhi Municipal Committee called upon th~ squatters/hawkers to submit declarations that they had paid the tehbazari fee up to 30-6-1965 and that they had been allotted alternative accommodation by the respondent in lieu of the siccs previously occupied. In return the Committee assured them that it would accept tehbazari fee from them and allow the occupation by them of the fom1er sites held by them until allotment of alternative accommodation. It is stated that the petitioner submitted the desired declaration and the New Delhi Municipal Committee accepted the sum of Rs. 225 as licence fee up to 30-6-1965. In the matter of allotment of alternative sites however, the respon

dent practised discrimination and did not allot any site to the petitioner although it granted such facility to others.

Further. the employees of the N.D.M.C. from: time to time threatened th~

petitioner with removal of all his articles etc. with which h~ carried on his trade from the site occupied by him. The peti tioner submitted that the N.D.M.C. was preventing him from carrying on his trade as a seller of potato chops unreasonably and in gross abuse of its power. It was submitted further that it wa> not open to the respondent to act arbitrarily and interfere with the petitioner's trade until the resolution granting the Iicenc~ was annulled by a subsequent resolution. It was also submitted that the N.D.M.C. had no power under s. 173 of the Punjab Municipal Act to withdraw pennission for encroachment on a public street unless reasonable prior notice was given.

Th~ grounds formulated in the petition were inter alia as follows :-

l. The N.D.M.C. has no power to take away the fundamental right of the petitioner to carry on his trade.

It could only regulate the common law right of the petitioner to sell his wares on a public street under s. 173

PYAkB LAL v. N.D.M.C, (Mittr. J.)

of the Punjab Municipal Act only so far as it was neces sary in the interest of the safety or convenience of the public.

2. That no resolution having been passed annulling the grant of licence to the petitioner, the action of the N.D.M.C. was illegal and without jurisdiction.

3. The action of the N.D.M.C. in preventing the petitioner from carrying on his trade without allotting an alternative site was discriminatory and unconstitutional.

ln the coun'.er aftidavit by the Secretary to the New Delhi Municipal Committee (hereinafter referred to us the N.D.M.C.) it was stated that the petitioner had no fundament11l rlght of the kind mentioned in the petition and his right, if nnf. to cnny 011 his business was sub]ec.t to such reasonable restrictions as the N .D.M.C. might think fit to impose under the provisions of the Punjab Municipal Act. The restrictions actually imposed upon the squatters/hawkers were reasonable and within the ambit of the powers of the N.D.M.C. The petitioner had been granted a temporary tehbazari permit under the temporary tehbazari permit scheme . and according to condition No. 2 of the permit the N.D.M.C. reserv.d to itself the right to cancel the same without assigning any reason whatsoever. The pem1it did not confer any right in property to the petitioner and his right to carry on tiusiness had been banned to his knowledge by resolution No. 36 dated 30th April, 1965 passed by the N.D.M .C. The petitioner was carrying on the business in violation of the reiolution of the committee. On the merits of the case, it was stated that the N.D.M.C. had considered a scheme prepared by the senior Vice President regarding re-organisation of procedure (!bout the issue

of licences to hawkers, squatters, etc. and by a resolution of 29th June 1962 it was resolved that in future a sub-committee would go into the matter of determining the persons or ategory of persons who would be given licences.

After prolonged discussions and consideration, the resolution was passed on 20th December

1963. By this the terms and conditions of a pennit to be granted to hawkers/ squatters were decided upon : a wo-forma of a temporary permit was also settled and on the reverse thereof the con

d!tion~ regarding the grant of pem1it were incorporated. Due to v10lat1on of the provisions of the Punjab Municipal Act by the squatters and because of certain practical difficulties, the committee resolved on 13th March 1964 that temporary permits would b_e issued t~ verified hawkers for the day-time only and that the

sites occupied must be left clear during the night.

A sub-com mit~ consisting of several municipal officers went round to various places in New Delhi to inspect the sites already selected

for allotment to hawkers/squatters. They were unable to select any further new sites and made a report to the President of the Committee. As many as 264 squatters out of 725 were allotted the sites approved.

The progress of the allotment of approved sites was not appreciable as many of the squatters did not find the new sites to their choice.

The Committee by its resolution dated 17th July 1964 decided that temporary tehbazari pennit fees should be deposited by the verified squatters who had not been allotted sites till then on condition that "site to be fixed" was to be mentioned in the permits of such squatters. 483 squatters deposited requisite charges upto the period ending 30th September

1964. It was noticed however that the squatters were not com plying with the conditions of the temporary tejJ.bazari permit scheme.

In order to enforce these conditions, day and light raids were conducted and tarpaulin sheds of various squatters were removed as also goods of those who stayed on the sites at night.

Ultimately, by reason of non-compliance of the conditions of the

t.mporary pennit scheme by hawkers, the scheme itself was suspended with effect from 1-!?-1964. The sale of cooked articles of food gave rise to such insanitary conditions that a resolution was passed by the committee on the 30th April 1965 banning the sale of cooked food including, tea, kulcha, choley, dahi hara, etc.

It was submitted in the counter affidavit that the petitioner as a holder of a temporary tebbazari permit bad no right or interest in the land belonging to the N.D.M.C. and that his right was subject to permission by the N.D.M.C: to carry on his trade. The petitioner bad submitted a declaration to the effect that he had

cased to squat in the N.D.M.C area. He never made an application for allotment of a platform at Ramakrisbnapuram (a facility granted to many) but applied for change of trade from potato chops dealer to that of a general merchant. He was informed on 2nd December 1964 about the cancellation of the temporary tebbazari permit granted under s. 173 of the Punjab Municipal Act.

He bad never been granted any licence.

He along with the other squatters were carrying on a business which tended to create slums on some of the important roads in New Delhi and as such the temporary tehbazari permit scheme had to be suspended and permission for sale of cooked food was withdrawn.

The contentions of the petitioner were turned down by the learned single J udgc and his appeal in common with that. f. a number of appeals of other squatters and hawkrs to the D1v1s1on Bench met with the same fate. The first contention pressed before us in this appeal was that it was not open to the Mucipal Con~ mittee to stop the petitioner and .others fro~ carrym~ .on their

trade by a resolution under s. 173 of the Pun1ab Mun1e1pal Act.

The relevant portion of the section runs as follows :-

PYARB LAL v. N.D.M.C. (Mitter, J.) 753,

A "(l) The Committee may grant permission in writ ing, on such conditions as it ma)'. deem fit for the. safety or convenience of persons passmg by, or dwellmg or working in the neighbourhood, and may charge fees for such permission, and may at its discretion withdraw the permission, to any person to- B

(a) place in front of any building any movable encroachment upon the ground level of any public street or over or on any sewer, !lrain or watercourse or any movable overhanging structure projecting into such public street at a point above the said ground level. c (b) ( c) deposit or cause to be deposited building materials, goods. for sale, or other articles on any public street, or (dj

D ( e) erect or set UR any fence, post, stall or scaffolding in

any public street.

" It was argued that s. 173 only made general provisions but it was open to the N.D.M.C. to frame bye-laws under s. 188 and in the absence of such bye-laws a resolution under s. 173 ( 1) could not be passed so as to affect the petitioner's rights.

S. 188 provides that a committee may, and shall if so required by the State Government frame bye-laws. The nature of the bye-laws is specified in els. (a) to (v) of s. 188 and cl. (u) reads:

"regulate the conditions on which and the periods for which pem1ission may be given under sub-section ( l) of section 172 and sub-section (1) of section 173, and provide for the levy of fees and rents for such permission;''

It was urged that so long as bye-laws are-not framed under the abov: lause, the"conitions on which and the periods for which

penmsstoi~ ould be given under s. 173(1) could not be altered.

In our opinion the bye-laws under s. 188(u) had to be made for an altogether dierent purpose.

Ss. 1 n and 173 are generally atmed at prcvntmg any encroachments over public stree'.s which cause obstruction thereon.

The expression "goods for sale" in

cl. (c) ofs.173(1)_or"stall"incl. (e) ofs.173(1) have to be read m th_at coectlon. The placing of goods for sale or erectmg stalls m. public treet may be allowed by the municipality on stated occas10ns as m the case of some festivals etc. A aain it mav be necessary to seek the pemiission of the municipality to make

SUPREME COUR'I' REPORTS

[1967] 3 S.C.R.

holes or excavation on any street or remove matrials from be

neath any street or to take up or alter the payment or deposit build ing materials thereon for the purpose of erecting a new building or making an alteration to an existing one and 'the power to regulate the conditions for grant of permission and the fees to be paid in connection therewith by bye-laws under s. 188 has that object in view. S. 188 was not designed for the purpos::: of framing bye-laws to regulate the conditions on which persons like the petitioner could be allowed to carry on trade on public streets and thus create permanent ullhygienic conditions thereon. This should never have been permitted by the municipality and the fact that it has by resolution under s. 173 purported to stop that practice .cannot go against it.

It was then urged that s. l 73 in so fur as it purported to give the municipality power to prevent the sale of cooked food was repealed by the provisions of the Prevention of Food Adulteration Act, 1954 and the Rules framed thereunder.

Our attention was drawn to ss. 23, 24 and 25 of the Prevention of Food Adultcrn tion Act.

S. 23 ( 1) of this Act gives the Central Government power to make rules subjec'. to certain conditions.

Under subcl. (a) such JUies may specify articles of food or classes of food for the import of which a licence is required prescribe the form and condition> of such licenc.e, the authority empowered to issue the

ame and the fees payable thereunder. Under cl. ( c) such rules may Jay down special provisions for imposing rigorous control over the production, distribution and sale of any article or class of articles of food which the Central Government may, by notification in the Official Gazette, specify in this behalf including registration of the premises where they are manufactured, main- tcnance of the premises in a sanitary condition and maintcnanc~ of the healthy state of human bein¥s associated with the production. distribution and sale of such arttcle or class of articles.

Undr cl. (~) such rules may also define the conditions of sale or conditions for licence of sale of any article of food in the interc;:t of public health.

S. 24(1) empowers the State Government. su bJect to certain conditions, to make rules for the purpose of giving effect to the provisions of this Act in matters not fallinµ within the purview of s. 23' s. 25 (!) provides that :

"If, immediately before the commencement of this Act, there is in force in any State to which this Act extends any law corresponding to this Act, that cot .sponding law shall upon such commencement stand repealed." Rules have been framed under this Act known as Prevention of Food Adulteration Rules, 1955. R. 50(1) of th~ rules provi~s :that. no person shall manufacture. sell, stock, distribute or exh1b1t

, G

for sale any of the articles of food specified therein except under a licence. Such articles include "sweetmeats and savourly". Our attention was also drawn to subrr. (S), (10) an4 (11) of r. 50.

Under subr ( S) the licensing authority must inspect the premises and satisfy itself that it is free from sanitary defects before granting a licence for the manufacture, storage or exhibition of any of the aticles of food in respect of which a licence is required.

Under sub-r. ( 10) no person can manufacture, store or expose for sale or permit the sale of any article of food in any premises not effectively separated .from any privy, urinal, sullage, draio or place of storage of foul and waste matter to , the satisfaction of the licensing authority, and under sub-r. ( 11) all vessels used for the storage or manufacture of the articles intended for sale must have proper covers to avoid contamination. It was argued on the strength of the above that these rules covered the field of sale of cooked food at stalls o.n public streets and therefore the provisions of s. 173 ( 1) of the Punjab Municipal Act which might otherwise have empowered the municipality to proceed thereunder stood repealed on the promulgation of these rules. This argument is fallacious. The object of s. 23 ( 1) and the different sub-rules under r. 50 was entirely different from that behind s. 173 ( 1) of the Punjab Municipal Act. The object of the Food Adulteration Act, as its preamble shows, was to make provision for the preven tion of adulteration of food and adulteration in this connection had a special significance under s. 2 of the Act. The object of this Act was to ensure that food which the public could buy wa.; inter alia prepared, packed and stored under sanitary conditions so as not to be injurious to the health of the people consuming it.

The rules framed thereunder would only over-ride rules or bye- Jaws, if any, made by any municipality if they covered the same field.

Under s. 173 (1) of the Punjab Municipal Act it is open to a municipal committee to take steps to prevent sale of any cook ed food however pure if the sale thereof on public streets would offer obstruction to passers-by or create insanitary condition.< because waste matter was bound to be thrown on the street and washinit up of articles used in the trade introduce unhygienic con ditions in the neighbourhood and create nuisance.

We cannot accept the contention that s. 173 (1) had only the object o.f ensur ing the free passage of persons and traffic along the pubhc street and so long as there was no such obstruction powers unde~ s. 173 could not be utilised for any oblique purpose like prcventmg per sons frem carrying on a lawful trade.

It was further argued thats. 56(!)(g) of the Punjab Muni cipal Act showed that "all public stre(\ts, not being land owned by Government and the pavements, stones and other .mate.rials there of and also trees growing on, and erections, matenals, 1mplement:;

and things provided for such streets" vested in and were under the

.control of the committee. According to the learned counsel this .only empowered the committee co regulate trade on public streets .and not altogether prevent the same.

Our attention was drawn to Halsbury's Laws of England, Vol. 33 (Third Edition), article 998 at page 586 headed "regulation -0f street trading".

The learned author thus summarised the law in England :-

"Subject to certain exceptions it is unlawful for any person to engage in street trading in or from a stationary position in any street within a metropolitan borough, or to engage in street trading in any designated street whether or not in or from a stationary position, unless he is authorised to do so by a street trading licence .....

Nothing in the foregoing provisions ( l) restricts the right of any person to carry on the business of a pedlar or hawker in accordance with a pedlar's certificate or hawker's licence which he holds; or (2) applies to the sale or exposure or offer for sale of newspapers or periodicals by any person who does not use in connection with the sale, etc., any receptacle which occupies a stationary position .in a street, other than a receptacle which is exclusively used in connection with the sale etc., "

J.t would appear that street trading is regulated by certain statutes in England and we have nothing of the kind here. On the basi; of the above passage, it cannot be said that persons in India have a lawful right to pursue street trading and such trading may be regulated but not altogether prevented.

On the authortiy of Roberts v. Hopwood(') it was argued by learn~ counsel that s. 173 at best gave a discretion to the Committee to regulate street trading and therefore the same ha' to be exercised rea, onably and could not altogether be prevented. Reference was also made to Pyx Granite Co. v. Ministry of Housing(') where it was held that the planning authority under the Town and Country Planning Act, 194 7, was not at liberty to use their powers for an ulterior object. however desirable that object may seem to them to be in the publk interest. Jn our view, none of these decisions have any bearing on the question before us.

There was no ulterior object. behind the resolution of the N.D.M.C. in this case. Clearly the prescnc:: of the stall-holders on public streets and sale of cooked food was

against public hygiene and s. 173 (1) could be a\'ailed of tn stop the same.

Learned counsel also cited the case of C. S. S.

Motor Seri•ice v. Madras State ("). There it was argued that the

<I) 11925] A.C 578. <21 f19581 I All E. R. 625.

13) A.r.R. 1953 !\.1aJras 279.

petitioners had a right to carry on motor transport business and that this was a right guaranteed under Art. 19(1) (g) of the Constitution. It was held that the regulation of motor traffic must be determined with the object of serving the interests of the public.

Further it was held that a system of licensing which had for its object the regulation of trade was not repugnant to Art. 19(1) (g). We do not think that the observations in that case are of any assistance to the appeflan:ts before us.

As a branch of the above argument it was also contended that the resolution under s. 173 on which the municipal committee

relied in this case gave uncontrolled power to the committee to do what they pleased.

It was argued that under the guise of regulation the committee sought to take away the right of the petitioner and others to carry on their trade at their sweet will. Reliance was placed in this connection on a judgment of the House o~ Lords in Westminster Corporation v. London and North Western Railway('). There it was observed that a public body invested with statutory powers must take care not to exceed or abuse them and that it must act in ·$ood faith and r.asonably. We do no! think that these observations help the appellants because it has not been shown to us that there was any bad faith which prompted the N.D.M.C. to pass the resolution complained of, nor did they act unreasonably.

It was argued however that the counter affidavit of the respondent as regards the allocation of alternative sites was not correct and comment had been made thereon by the learned single Judge of the High Court. However that may be, it is apparent from the judgment that not all the squatters applied for alternative accommodation and not all of them approved of the sites which were allotted to them. It was beyond the jurisdiction of the N.D.M.C. to provide persons like the appellants with sites at Ramakrishnapuram. That was under the jurisdiction of the Director of Es!ates and it appears that this authority had been approached for helping persons like the appellants.

Further, no question of discrimination can arise because all the hawkers. squatters did not apply for such sites or could not be provided with such sites. The resolution of 30th April 1965 clearly showed that the N.D.M.C. was out fo stop the sale of cooked food including tea, kulche choley etc., inasmuch as the sale of cooked focxt-11resented an exceptionally difficult problem because facilities like running water, sewer connection etC. necessary for the minimum siandard of sanitation could not be made available.

It appears to us that this series of litigation was the result of the N.D.M.C. allowing trade of a kin'd on public streets which it

(l) [1905] A. C. 426.

should have never allowed. Out of sympathy for tbem the . ..,,.

N.D.M.C. had permitted the continuance of the trade for a ic>q. time. But no exception can be taken to their exercise of r under s. 173 of the Punjab Munlplpal Act to eradicate the ..n.

After all every person has a right to pass and re-pass aJona a DUbllc street. He cannot be heard to say that he has a fundamental right

to carry 011 street trading and particularly in a anner which is B bound to . create insanitary and unhygienic conditions in the neighbourhood.

'111.e appeals therefore fail, and are dismissed.

G.C.

Appeals dismissed.

PYARE LAL ETC

NEW DELHI MUNICIPAi~ COMMITTEE & ANR

April 20, 1967

K. N. WANCHOO

V. BHARGAVA

G. K. MITTER, JJ.

s.1, 173, 188

s. 17

s. 188

s. 173

s. 173

s. 173

s. 173(!)

N.D.M.C

s. 173

CIVIL APPEi.LATE

Madan Bhatia

Bishan Narain

Sardar Bahadur

Sardar Bahailur

R. N. Sachthey

Mitter

Pyare Lal

October 12, 1965

Punjab High Court

New Delhi Municipal Committee

Janpath

New Delhi

New Delhi Rehri Owners Association

December 20, 1963

N.D.M.C.

s. 173

s. 173

.D.M.C.

30th April, 1965

N.D.M

.C.

29th June 1962

20th December

1963

13th March 1964

17th July 1964

30th September

1964

30th April 1965

Ramakrisbnapuram

2nd December 1964

s. 173

s. 173

s. 173

s. 188

s. 173

S. 188

s. 188

section 172

section 173

s. 173(1)

s. 188(u)

Ss. 1

s. 188

S. 188

s. 173

ss. 23, 24 and 25

S. 23

Central Government

S. 24(1)

s. 23

s. 25

s. 173

s. 23

s. 173

s. 2

s. 173

s. 173

s. 173

article 998

England

India

s. 173

s. 173

Art. 19(1)

Art. 19(1)

s. 173

Ramakrishnapuram

s. 173