Holding

The relocation order is a valid exercise of the NDMC's authority and does not violate the hawker's constitutional right, as it is a reasonable restriction in the interest of security.

Summary

Dharm Chand, a hawker who had been allotted a Tehbazari kiosk opposite the Supreme Court, was ordered by the New Delhi Municipal Council (NDMC) to relocate his stall to a site near Baroda House on security grounds following a bomb blast near the Delhi High Court in 2011. He challenged the order, invoking his constitutional right to carry on trade under Article 19(1)(g) and arguing that the relocation violated his livelihood. The High Court dismissed his petition, holding that the NDMC, under Section 388(D)(5) of the NDMC Act, could impose reasonable restrictions for public safety, and that the right under Article 19 is subject to reasonable restrictions under Article 19(6). The Supreme Court upheld this view, emphasizing that security concerns around the Supreme Court premises outweigh the individual’s trade right and that the order was a valid exercise of the NDMC’s authority. Consequently, the appeal was dismissed.

Issues considered

The validity of the NDMC's order to relocate the hawker's kiosk in light of the hawker's right to trade under Article 19(1)(g) of the Constitution.
Whether the restriction imposed for security reasons is a reasonable restriction permissible under Article 19(6).
The extent of the NDMC's statutory power under Section 388(D)(5) of the New Delhi Municipal Council Act, 1994 to enforce such relocation.

Legislation cited

New Delhi Municipal Council Act, 1994s. 388(D)(5)

Subjects

Tehbazari rightsHawkerArticle 19(1)(g)SecurityPublic interestReasonable restrictionNDMCRelocation

Judgment

(2015] 9 S.C.R. 126

A B'HARAM CHAND
v.
CHAIRMAN, NEW DELHI MUNICIPAL COUNCILAND
OTHERS
B (Civil Appeal No. 5779 of 2015)
JULY29, 2015
[M.Y. EQBALAND C. NAGAPPAN, JJ.]
c Tehbazari Rights - Relocation of Kiosk of a squatter -
From the existing site (outside Supreme Court) - On account
of safety and security of Supreme Court- Propriety of- Held:
Though the squatter has a right to earn his livelihood - But
in view of serious issue of safety and security, court cannot
D direct the administration to allow continuance of such a kiosk
- The purpose involving general interest of community as
opposed to the individual interest has to be balanced - The
order refusing to permit the squatter to run his business in
the Kiosk is justified- Constitution of India, 1950-Art. 19(1)
E (g) and 19(2) - New Delhi Municipal Council Act, 1994 -
s.388(0) (5).

Dismissing the appeal, the Court.

HELD: 1. There are various circumstances justifying
F
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
G there are certain areas which may be required to keep
free of such types of kiosks fer security reasons. The
Court cannot direct the administration to allow such a
· kiosk. [Para 19] [137-8-C]

H 2. On the one hand, appellant has a right to earn his
livelihood, but on the other hand there is serious issue
126
DHARAM CHAND v. CHAIRMAN, NEW DELHI 127
MUNICIPAL COUNCIL

of safety and security of the premises near the Supreme A
Court compound. Hence, the Court has to balance
between the two. The purpose involving general interest
of community as opposed to the interest of individuat
directly or indirectly has to be balanced. Merely because
after the bomb blasts took place in Delhi High Court B
compound in 2011, no such incident happened till date,
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. [Para 20] [137-D-G] C

Maharashtra Ekta Hawkers Union and Another vs.
Municipal Corporation, Greater Mumbai and Anr., 201
(9) SCR 742 = 2014(1) SCC 490- relied on.
D
Sadan Singh vs. New Delhi Municipal Corporation 1989
(3) SCR 1038 = 1989 (4) SCC 155; Kharak Singh vs.
State of U.P, (1964) 1 SCR 332- referred to.

Case Law Reference E
1989 (3) SCR 1038 referred to para 3

(1964) 1 SCR 332 referred to para 7

2001 (9) SCR 742 relied on para 12 F
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5779 of2015

From the Judgment and Order dated 13.11.2014 of the
High Court of Delhi at New Delhi in Letters Patent Appeal No. G
675 of 2014

Salman Khurshid, Tripurari Ray, Anil Kaushik, lmtiaz
Ahemd, Rajinder Singh, Anupama Sharma, (for Vishnu
Sharma) for the Appellant. H
128 SUPREME COURT REPORTS [2015] 9 S.C.R.

A Rakesh Kumar Khanna,Anirudh Janwar,Arjun Krishnan,
R. Bala Subramanian, R. S. Nagar, Santosh Kumar, D. S.
Mahra, Harish Pandey for the Respondents.
The Judgment of the Court was delivered by .
B M. Y. EQBAL, J. 1. Leave granted.
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
C 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 03.12.2013
issued by the Enforcement Department, New Delhi Municipal
Council (NDMC) deciding to relocate the appellant (a squatter)
D 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
E cloths and thereafter Tehbaz~ri 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
F 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
G in Sodan Singh vs. New Delhi Municipal Corporation,
(1989) 4 sec 155 to identify street pavement in different areas
where the 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
H allotted one stall bearing size 6' x 4', opposite Supreme Court,
towards Bhagwan Das Road and near Office Complex of
DHARAM CHAND v. CHAIRMAN, NEW DELHI 129
MUNICIPAL COUNCIL [M. Y. EQBAL, J.]

Supreme Court Lawyers and Purana Quila Road Bungalows A
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
8
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 c
taken by learned counsel for NDMC that a fresh site would be
allotted to the writ petitioner Laxmi Narain, his writ petition was
disposed of.
5. Appellant herein contended that order dated 121h
December, 2012 in Laxmi Narain Tiwari vs. New Delhi D
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:
E
"TheHon'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 F
removed from the said site. Now, it has been decided to
relocate the following verified squatters from their existing
sites to the following sites:-
SNo. Narre Existing Trale Allotted OjjionS~es
Area G
)()()()( )()()()( )()()()(

5. Sh. Dharan
Chand, '2/o St Paan Bri OgarEtte 6'x4' 200-Site near the
Trika Ram, gcie r:i Baroda
213-S-01 (S1all) House aqa:ert b

- I
existing s1alls.
lermhasis smriie::ll
H

... 1
130 SUPREME COURT REPORTS [2015] 9 S.C.R.

A 6. 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
B 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.
c
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
D strong customer base and his shifting from the present place
of business for security reasons has the effect of taking 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
E this Court in Kharak Singh vs. State ofU.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
F 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
G 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"
withinArt. 12."
H
-
DHARAM CHAND v. CHAIRMAN, NEW DELHI 131
MUNICIPAL COUNCIL [M. Y. EQBAL, J.]

8. Having heard learned counsel on either side, the learned A
Single Judge of the High Court dismissed the writ petition of
the appellant. The learned Single Judge was of the view that
under 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 B
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 C
on month to month basis.

xxxx xxxx xxxx xxxx
7. The permittee shall vacate the site in a peaceful manner
D
arid 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." E
9. The learned Single Judge was of the viewthatthe 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 F
be left to the wisdom and decision of the police.

10. 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 G
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 H
132 SUPREME COURT REPORTS [2015] 9 S.C.R.

A 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
B 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 High Court complex. It was noted that the said decision
C 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
D 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,
E 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.

12. The respondent referred to the decision of the Apex
F Court in Maharashtra Ekta Hawkers Union and Another
vs. Municipal Corporation, Greater Mumbai and Anr.,
(2014) 1 sec 490, wherein it .has been held as under:- . '
"8. In Maharashtra Ekta Hawkers Union v. Municipal
G Corpn., Greater Mumbai, (2004) 1SCC625, 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
H recommendations made by the Committee constituted
pursuant to an earlier judgment and observed:
DHARAM CHAND v. CHAIRMAN, NEW DELHI 133
MUNICIPAL COUNCIL [M. Y. EQBAL, J.]

"10. The above authorities make it clear that the hawkers A
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 B
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 c
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
D
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 E
which necessitates anyalteration."

9. The Court then enumerated the following restrictions
and conditions subject to whic:h the hawkers could do business
in Mumbai: (Maharashtra Ekta Hawkers Union case,(2004) F
1sec 625 atsec pp. 635-37, para 14)

"( 1) An area of 1 m x 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 G
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
H
Aarey/Sarita stalls and sugarcane vendors would require
134 SUPREME COURT REPORTS [2015] 9 S.C.R.

A and may be permitted an area of more than 1 m x 1 m
but not more than 2 m x 1 m.

(2) Hawkers must not put up stalls or place any tables,
stand or such other thing or erect any type of structure.
B 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
c 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
D 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."
E
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
F Commissioner 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
G 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
H on 07.09.2011, a meeting was called by the then Chief Justice
DHARAM CHAND v. CHAIRMAN, NEW DELHI 135
MUNICIPAL COUNCIL [M. Y. EQBAL, J.]

of India and this Court on its administrative side, after A
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 B
arrangement was reviewed with the Delhi Police and a
decision was taken on the administrative side not to allow any
hawkers nearthe Supreme Court premises.

15. After considering the aforesaid affidavits, this Court C
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 D
Court Security, vide his affidavit dated 301h 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 E
public, the surroundings of the Hon'ble Court are always
vulnerable. Paragraphs 3 to 5 of the Affidavit are, therefore,
extracted herein below:

"3. That the deponent states that since 2011 no such F
incident of bomb bias 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 G
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 H
136 SUPREME COURT REPORTS [2015] 9 S.C.R.

A 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
B 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."
c
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.
D
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 .
E rough sketch map to the effect that the Kiosk in question is not
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
F 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.
G
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
H on his business. On the other hand, Mr. R. Bala Subramanian, ·
DHARAM CHAND v. CHAIRMAN, NEW DELHI 137
MUNICIPAL COUNCIL [M. Y. EQBAL, J.]

learned counsel appearing for the Deputy Commissioner A
(Security) produced before us a confidential folder containing
many messages received by the Authority giving threat of
exploding bomb blasts in different places.

19. After giving our anxious consideration in the matter, B
although we have sympathy for the appellant, but there are
various circumstances justifying the refusal to permitthe
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 C
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.
D
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 E
opposed 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 F
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 it~ vicinity and allow the appellant to
continue the said business.
G
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.

Kalpana K. Tripathy Appeal dismissed. H