MUNICIPAL CORPORATION OF DELHIversusGURNAM KAUR

                 MUNICIPAL CORPORATION OF DELHI                               A
                               v.
                          GURNAM KAUR

                             SEPTEMBER 12, 1988

        [A.P. SEN, E.S. VENKATARAMIAH AND B.C. RAY, JJ.]                      B

            Delhi Municipal Corporation Act, ·1957-Sec. 320-Bar on illegal
      encroachment on public land-Sec. 322-Exercise of power by Com-
      missioner to remove encroachment. In a Writ Petition under Article226
      of the Constitution High Court restrained Corporation from stopping
      pitching of a stall on public land-Held High Court could not give such C
      a 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 D
      is binding on an authority is the principle upon which the case was
      decided-Obiter dicta are not binding.                                · •·

            Some persons were plying their business by squatting on pave-
      ment 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 E
      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 injunc-
      tion restraining the Corporation from interfering with their business
'.Y
      and/or removing or demolishing any temporary structures put up by
      them for plying their trade. The Subordinate Judge disallowed the F
      plaintiffs' main claim seeking a declaration that the Municipal Cor-
      poration 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 tlie 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 G
      Sub-Section of Section 430 of the Act.

            Two of the squatters namely Jamuna Das and his brother filed
      writ petitions in this Court seeking a writ of mandamus ordaining the ·
      Municipal Corporation to allot each of them a suitable site on pave-
      ment in front of. the main gate of the hospital. (Jamna Das & Anr. v. H
                                       929
    930         SUPREME COURT REPORTS                 [1988] Supp. 2 S.C.R.

    Delhi Administration & Ors., Writ Petition Nos. 981-982 of 1984.)
A
    This Court directed that the petitioners be rehabilitated by the Munici·
    pal Corporation by construction of stalls according to the sketch plan
    tiled 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
B   treated as a precedent.

           The respondent, who was one of the plaintiffs who had tiled suits
    in the court of Subordinate Judge, moved the High Court under Article
    226 of the Constitution for a writ and direction restraining the Corpora·
    ti on from evicting her without the due process of law. The High Court
    partly allowed the writ petition holding that the judgment of the
c   Learned Snbordinate Judge which was a judgment inter partes had
    become final not having been appealed from and therefore the respon-
    dent 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 an option to the
D   Corporation either to construct the stall similar to the one they have
    constructed in compliance with the direction made by this Court in
    Jamuna Das' case or in the alternative furnish to the respondent a plan
    of the stall with requisite permission so that she could build her own.
    stall accordingly. Feeling aggrieved by this Judgment of the High
    Court, the Municipal Corporation tiled this appeal by special leave.
E   Allowing the appeal this Court,

          HELD:. The Learned Judges of the High Court failed to ap·
    preciate that this Court in Jamna Das' case made a direction with the
    consent of parties and with the reservation that it should not be treated
    as a precedent. It expressed no opinion on the question whether there
F   was any statutory obligation cast on the Municipal Corporation to pro·        •
    vide alternative site to a person making illegal encroachment on a
    public place like any public street etc. contrary to Section 320 of the Act
    as a condition precedent to the exercise of its powers under s. 322 of the
    Act for the removal of such encroachment on any public street, footpath
    or pavement. That apart, the High Court could not have made the
G   impugned direction contrary to the p~ovisions contained in ss. 320 and
    322 of the Act. [937A-C

          It is axiomatic that when a direction or order is made by consent
                            .
    of the parties, the Court does not adjudicate upon the rights of the
                                                             '
    parties nor lay down any principle. Quotability as 'law' applies to the
H   principle of a case, its ratio decidendi. The only thing in a Judge's
                                M.C.D. v. GURNAM KAUR                          931

        decision binding as an authority upon a subsequent Judge is the princi-
                                                                                      A
        ple npon which the case was decided. Statements which are not part of
        the ratio decidendi are distinguished as obiter dicta and are not
        authoritative. The task of finding the principle is fraught with difficulty
        because without an investigation into the facts, as in the present case, it
        could not be assumed whether a similar direction must or ought to be
        made as a measure of social justice. That being so, the direction made        B
        by this Court in Jamna Das' case could not be treated to be a precedent.
        The High Court failed to realise that the direction in Jamna Das' case
        was made not only with the consent of the parties but there was an
        interplay of various factors and the Court was moved by compassion to
        evolve a situation to mitigate hardship which was acceptable by all the
        parties concerned. [937F-H; 938A]                                             .c
              Pronouncements of law, which are not part of the ratio decidendi
        are classed as obiter dicta and are not authoritative. With all respect to
        the learned Judge who passed the order in Jamna Das' case and to the
        learned Judge who agreed with him, we cannot concede that this Court
        is bound to follow it. It was delivered without argument, without             0
        reference to the relevant provisions of the Act conferring express
        power on the Municipal Corporation to direct removal of encroach·
        ments from any public place like pavements or public streets, and
        without any citation of authority. Accordingly, we do not propose to
        uphold the decision of the High Court because, it seems to us that it
        is wrong in principle and cannot be justified by the terms of the             E
        relevant provisions. [938F-G]

1             A decision should be treated as given per incuriam when it is given
        in ignorance of the terms of a statute or of a rule having the force of a
        statute. [938G-H]
                                                                                       F
             Salmond on Jurisprudence by P.J. Fitzgerald, 12th Ed.; Gerard
        v. Worth of Paris Ltd. (K), [1936] 2 All E.R. 905 (C.A.) and Lancaster
        Motor Co. (London) Ltd. v. Bremith Ltd., [1941] 1 KB 675, referred
        to.

              Precedents sub silentio and without argument are of no moment.          G
        This rule has ever since been followed. One of the chief reasons for the
        doctrine of precedents is that a matter that has once been fully argued
        and decided should not be allowed to be reopened. The weight accorded
        to dicta varies with the type of dictum. Mere casual expressions carry
....,   no weight at all. Not every passing expression of a Judge, however
        eminent, can be treated as an ex cathedra statement, having the weight        H
        of authority. [939G-H]
    932          SUPREME COURT REPORTS               I1988] Supp. 2 S.C.R.
          Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors.,
A
    [1985) 3 SCC 545 and Bombay Hawkers' Union & Ors. v. Bombay
    Municipal Corporation & Ors., [1985] 3 SCC 528, referred to.

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3189/
    1989.
B
         From the Judgment and Order dated 11.3.1987 of"the Delhi High
    Court in C.W.P. No. 875of1986.

            R.B. Datar and Ranjit Kumar for the Appellant.

            V.B. Saharya for the D.D.A.
c
            Jose P. Verghese and O.P. Verma for the Respondent.

            The Judgment of the Court was delivered by

D         SEN, J, The main question involved in this appeal from a judg-
    ment and order of a Division Bench of the Delhi High Court dated
    March 11, 1987 is whether the High Court was justified, in the facts
    and circumstances of the case, in issuing a direction to the appellant
    Municipal Corporation of Delhi to construct a stall or a kiosk on the
    pavement near the OPD gate of the Irwin Hospital, Delhi within two
E   months from the date of its order or in the alternative, to furnish a plan
    with requisite sanction to the respondent Gurnam Kaur to enable her
    to construct a stall of her own. The issue involved is as to the preceden-
    tial value of a direction earlier made by this Court on a petition under
    Art. 32 of the Constitution based on consent of the parties, with the
    reservation that it should not be treated as a precedent.
F
         It appears that sometime in 1984, the appellant Municipal
    Corporation of Delhi sought police help to clear the pavement near
    the OPD gate of the Irwin Hospital; now known as Lok Nayak Jai
    Prakash Narain Hospital, which is one of the largest hospitals in
    Northern India, on a complaint made by the Hospital authorities that
G   the pavement-hawkers by setting up their stalls or pitching their wares
    were causing inconvenience to the ingress or egress of the ambulances
    besides causing congestion on the pavements and obstructing the free
    flow of traffic. The Municipal Corporation was satisfied that if the
    squatters continued to cover pathways meant for pedestrians, a time
    would come when no room would be left for people to walk on the
H   footpaths. In a police action, the pavements-hawkers were removed
                      M.C.D. v. GURNAM KAUR [SEN, J.]                     933

    from outside the main gate of the Irwin Hospital in and around the
    subway of Jawahar Lal Nehr11 Marg on January 15, 1984.                        A

          On February 22J 1984, eight of these pavement squatters
    instituted separate suits in the Court of the Subordinate Judge, II
    Class, Delhi against the Municipal Corporation seeking the relief of
    perpetual injunction restraining the appellant, its officers and servants     B
    from interfering with their business of hawking on the pavements out-
    side the main gate of the hospital and/or from demolishing or remov-
    ing any tell)porary structures put up by them for plying their trade. In
    denial of the claim, the appellant Municipal Corporation pleaded,
    inter alia, (i) that the construction of the kiosks or stalls by the
    plaintiffs was without permission and therefore amounted to an
    encroachment on the pavement. The Municipal Corporation accord-               c
    ingly under s. 322 of the Delhi Municipal Corporation Act, 1957 had
    the right and authority to remove such encroachment without notice,
    and (ii) that the plaintiffs had no legally enforceable right under the
    terms of the tehbazari licence, they having committed violation of the
    terms and conditions thereof besides being in arrears of licence fee.         D
    Accordingly, it pleaded that the plaintiffs' claim in suit was wholly
    misconceived. The suits were consolidated together for trial as they
    raised a common issue.

          It is common ground that the plaintiffs had each been occupying
    a site admeasuring 6 ft. x 4 ft. on tehbazari basis since the year 1975. E
    The contention of the plaintiffs was that the Municipal Corporation
    having itself allotted the plaintiffs licence under s. 321 of the Act on
    tehbazari basis to use the pavement in front of the main gate of the
    Irwin Hospital for carrying on their business on specific terms and
    conditions, such grant of licence or permission gave to them a right
    under s. 430 of the Delhi Municipal ·Corporation Act, 1957 which F
    could not be terminated unilaterally without affording them an op-
    portunity of a hearing urider proviso (a) to sub-s. (3) of s. 430 of the ·
    Act. On February 24, 1984, Shri B.P. Bhalla, learned counsel appear-
    in~ for the plaintiffs in all the suits made a statement to the effect:


                "The plaintiffs shall occupy only 6 ft. x 4 ft. space as allot-   G
                ted to them by the defendants and no further space beyond
•               those limits. They have not constructed any permanent
                structure on the site and shall not construct any structure
                thereon, whether permanent or temporary."

    Accordingly, the learned Subordinate Judge during the course of his           H
    judgment observed:
    934         SUPREME COURT REPORTS                   [1988] Supp. 2 S.C.R.

                 "In view of the above statement by the counsel for
A               plaintiffs, it is clear that the stall if any erected or posted at
                the suit sites is without authority. Placing of such a stall at
                the suit site amounts to encroachment within the meaning of
                sec. 322 of the DMC Act which stall can be removed at any
                time by the defendant MCD without notice. In this light the
B               plaintiffs have no right to claim an injunction against
                demolition or removal of any stall or other structure if
                posted or placed or affixed at the suit site and such stalls
                can be removed by the defendant MCD. The only right
                granted to the plaintiffs is to occupy and do business at the
                suit site each admeasuring 6 ft. x 4 ft. as stated by the Id.
                counsel for the plaintiffs in his statement on 24.2.84. The
c               right of the plaintiffs goes no further and is limited to the
                extent of the right to occupy the aforesaid site. The
                defendant MCD has the right and full authority to remove
                any illegal structure stall etc. from the suit sites without
                notice under the provisions of sec. 322 of the DMC Act but
D               at the same time defendant MCD cannot remove the
                plaintiffs nor interfere with their business at the suit site in
                any other manner without terminating their licence to oc-
                cupy the said sites in accordance with the procedure con-
                tained in sec. 430(3) ofDMC Act."

E   The learned Judge accordingly partly decreed the plaintiff's claim to
    the extent indicated hereafter:

               "Consequently, all these suits are partly decreed to the
               effect that the defendants are restrained permanently from
               removing the palintiffs from the suit sites without terminat-
F              ing the Tehbazari permission granted in their favour in
               accordance with the provisions of s. 430(3) of the DMC
               Act. The prayer for injunction against demolition or
               removal of the stalls of the plaintiffs is disallowed."

        It therefore follows that the learned Subordinate Judge accord-
G ingly 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 on the pavement in front of the main gate of the Irwin
  Hospital. 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 site each admeasuring 6 ft. x 4 ft. in
H question and till their licence was not terminated by the Municipal
                  M.C.D. v. GURNAM KAUR [SEN, J.]                  935

Corporation after following the procedure laid down in proviso (a) to
                                                                           A
sub-s. (3) of s. 430 of the Act. It had no power to remove the plaintiffs
nor interfere with their business at the suit sites. It could not take
recourse to its power of removal of encroachment without notice
under s. 322(a) of the Act. It is equally evident that the learned Subor-
dinate Judge partly decreed the plaintiffs' claim only to that extent
that it restrained the Municipal Corporation from taking any steps for B
removal of such encroachment by the plaintiffs inasmuch as the power
under s. 322(a) of the Act cannot be exercised without following the
procedure laid down in s. 430(3) of the Act and without terminating
the tehbazari licence granted in their favour. The respondent Gurnam
Kaur was one of the plaintiffs and she had been in occupation of a site
admeasuring 6 ft. x 4 ft. on the basis of tehbazari licence intermittently
since the year 1960 and had been paying the licence fee therefor. The c
decree passed by the learned Subordinate Judge not having been
appealed from by the Municipal Corporation of Delhi has since
become final. The rights of the parties therefore stand crystallized by
the terms of th decree passed by the learnerl ~ ...bordinate Judge.
                                                                          D
        There was a further development. Two of the squatters, namely,
one Jamna Das and his brother moved this Court by petition under
Art. 32 of the Constitution, being Writ Petition Nos. 981-82/84 Jamna
Das & Anr. v. Delhi Administration & Ors., seeking a writ in the
nature of mandamus ordaining the Municipal Corporation to allot
each of them a suitable site on the pavement in front of the main gate of E
the Irwin Hospital. Their grievance was that they were similarly situate
like 10 other squatters who were all plying their trade on the pavement
in front of the main gate of the Irwin Hospital catering to the needs of
the visitors to the hospital by selling tea, snacks, pan, bidi etc. and
although the Municipal Corporation had rehabilitated the said 10
sq natters by allotment of stalls to them, despite repeated applications p
there was no redressal of the wrong done to them inasmuch as the
Municipal Corporation had arbitrarily and without any rational basis,
denied them such facility. Further, it was alleged in that case that the
father of the petitioners had been occupying the site admeasuring 6 ft.
 x 4 ft. on tehbazari licence since the year 1947 till his death in 1975 and
thereafter the petitioners were permitted to occupy the same on G
similar terms but the Municipal Corporation illegally caused their
removal with police help. It was averred that the Municipal Corpora-
tion could not take recourse to its power of eviction under s. 322(a) of
the Act without terminating the tehbazari licence in their favour and
without following the procedure prescribed by proviso (a) to s. 430(3)
of the Act. Several adjournments were taken in an effort to find a H
    936         SUPREME COURT REPORTS                [ l988] Supp. 2 S.C.R.

A solution to the problem by learned counsel appearing for the Munici-
  pal Corporation.

           Eventually, Desai, J. speaking for a Bench of two Judges by his
    order dated March 29, 1985 made a direction for rehabilitation of the
    petitioners. Virtually, it was a consent order as learned counsel
    appearing both for the Delhi Development Authority and the Munici-
    pal Corporation requested the Court to give a direction keeping in
    view the sketch plan furnished by the Municipal Corporation, and gave
    an undertaking that any direction made by the Court for rehabilitation
    of the petitioners would be carried out. The Court accordingly
    directed that the petitioners be rehabilitated by the Municipal Cor-
c   poration by construction of stalls according to the sketch plan with a
    further direction that each of them would be put in possession of one
    of tlie stalls. The direction was however made subject to the condition
    that such construction of stalls would not cause any further obstruction
    to the free flow of traffic. The Court also made it clear that the direc-
D   tion should not be treated as a precedent.

          Presumably because of the direction made by this Court in
    Jamna Das' case, the respondent Gurnam Kaur moved the High Court
    under-Art. 226 of the Constitution in April, 1986 for the issuance of an
    appropriate writ or direction restraining the Municipal Corporation
    from evicting her without the due process of law. A Division Bench of
E   the High Court by the impugned judgment has partly allowed the writ
    petition holding that the judgment qf 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 cm the pavement outside the main OPD gate of
    the Irwin Hospital where she was squatting. The learned Judges relied
F   upon the decisim1 of this Court in Jamna Das' case where a direction
    was made requiring the Municipal Corporation to construct stalls for
    the petitioners in that case, so that they 'Could be rehabilitated. The
    learned Judges felt that it was equally desirable that the respondent
    Gurnam Kaur instead of being allowed to squat on the pavement,
    should be provided with a stall of the same pattern and design as had
G   been done for ·the two squatters in Jamna Das' case. The High Court
    gave an option to the Municipal Corporation either to construct a stall
    similar to the one they had constructed in compliance with the direc-
    tion made by this Court in Jamna Das' case or, in the alternative,
    furnish to the respondent a plan of the stall with requisite permission
    so that she could build her own stall accordingly.
                   M.C.D. v. GURNAM KAUR [SEN, J.)                     937

      We find it rather difficult to sustain the judgment of the High
                                                                              A
Court. The learned Judges failed to appreciate that this Court in
Jamna Das' case made a direction with the consent of parties and with
the reservation that it should not be treated as a precedent. It expres-
sed no opinion on the question whether there was any statutory obliga-
tion cast on the Municipal Corporation to provide alte"rnative site to a
person making illegal encroachment on a public place like any public
street etc. contrary to s. 320 of the Act, as a condition precedent to the
exercise of its powers under s. 322 of the Act for the removal of such
encroachment on any public street, footpath or pavement. That apart,
the High Court could not have made the impugned direction contrary
to the provisions contained in ss. 320 and 322 of the Act. S. 320(1) in
terms creates a statutory bar against illegal encroachment on any por-
tion of a public street. It provides that "No person shall, except with       c
the permission of the Commissioner granted in this behalf, erect or set
up any booth or other structure whether fixed or movable or whether
of a permanent or temporary nature, or any fixture in or upon any
street etc". Having regard to this express provision, the High Court
failed to see that the respondent Gurnam Kaur had no legally enforce-
able right to the grant of a writ or direction in the nature of mandamus.
The High Court could not obviously issue any such direction which
would be tantamount to a breach of the law. Furthermore, ihe High
Court could not also make the impugned direction in view of the
provision contained in s. 322(a) of the Act, which expressly confers
power on the Commissioner to cause the removal of any "structure              E
which constitutes an encroachment on a public place like a street
which is meant for the use of the pedestrains.

       It is axiomatic that when a direction or order is 'made by consent
of the parties, the Court does not adjudicate upon the rights of the
parties nor lay down any principle. Quotability as 'law' applies to the       F
pril)ciple of a case, its ratio decidendi. The only thing in a Judge's
decision binding as an authority upon a subsequent Judge is the princi-
ple upon which the case was decided. Statements which are not part of
the ratio decidendi are distinguished as obiter dicta and are· not
authoritative. The task of finding the principle is fraught with difficulty
because without an investigation into the facts, as in the present case,      G
it could not be assumed whether a similar direction must or ought to be
made as a measure of social justice. That being so, the direction macle
by this Court in Jamna Das' case could not be treated to be a prece-
dent. The High Court failed to realise that the direction in Jamna Das'
case was made not only with the consent of the parties but there was an
interplay of various factors and the Court was moved by compassion to         H
    938         SUPREME COURT REPORTS                [1988] Supp. 2 S.C.R.

    evolve a situation to mitigate hardship which was acceptable by all the
A   parties concerned. The Court no doubt made incidental observation to
    the Directive Principles of State Policy enshrined in Art. 38(2) of the
    Constitution and said:

                "Article 38(2) of the Constitution mandates the State to
B               strive _to minimise, amongst others, the inequalities in
                facilities and opportunities amongst individuals. One who
                tries to survive by one's own labour has to be encouraged
                because for want of opportunity destitution may disturb the
                conscience of the society. Here are persons carrying on
                some paltry trade in an open space in the scorching heat of
                Delhi sun freezing cold or torrential rain. They are being
c               denied continuance at that place under the specious plea
                that they constitute an obstruction to easy access to hospi-
                tals. A little more space in the access to the hospital may be
                welcomed but not at the cost of someone being deprived of
                his very source of livelihood so as to swell the rank of the
D               fast growing unemployed. As far as possible this should be
                avoided which we propose to do by this short order."

    This indeed was a very noble sentiment but incapable of being
    implemented in a fast growing city like the metropolitan City of Delhi
    where public streets are overcrowded and the pavement squatters
E   create a hazard to the vehicular traffic and cause obstruction to the
    pedestrians on the pavement.

          Pronouncements of law, which are not part of the ratio decidendi
    are classed as obiter dicta and are not authoritative. With all respect to
    the learned Judge who passed the order in Jamna Das' case and to the
F   learned Judge who agreed with him, we cannot concede that this Court
    is bound to follow it. It was delivered without argument, without refe-
    rence to the relevant provisions of the Act conferring express power
    on the Municipal Corporation to direct .removal of encroachments
    from any public place like pavement or public streets, and without any
    citation of authority. Accordingly, we do not propose to uphold the
G   decision of the High Court because, it seems to us that it is wrong in
    principle and cannot be justified by the terms of the relevant provi-
    sions. A decision should be treated as given per incuriam when it is
    given in ignorance of the terms of a statute or of a rule having the force
    of a statute. So far as the order shows, no argument was addressed to
    the Court on the question or not whether any direction could properly
H   be made compelling the Municipal Corporation to construct a stall at
                  M.C.D. '· GUR'NAM KAUR {SEN, J.l                   939

the pitching site of a pavement squatter. Professor P.J. Fitzgerald,' A
editor of the Salmond on Jurisprudence, 12th edn. explains the con-
cept of sub silentio at p. 153 in these words:

            "A decision passes sub silentio, in the technical sense that
            has come to be attached to that phrase, when the particular
                                                                            B
            point of law involved in the decision is not perceived by the
            court or present to its mind. The Court may consciously
            decide in favour of one party because of point A, which it
            considers and pronounces upon. It may be shown, how-
            ever, that logically the court should not have decided in
            favour of the particular party unless it also decided point B
            in his favour; but point B was not argued or considered by      c
            the court. In such circumstances, although point B was
            logically involved in the facts and although the case had a
            specific outcome, the decision is not an authority on point
            B. Point B is said to pass sub silentio.
                                                                            D
      In Gerard v. Worth of Paris Ltd. (k)., [1936] 2 All E.R. 905
(C.A.), the only point argued was on the question of priority of the
claimant's debt, and, on this argument being heard, the Court granted
the order. No consideration was given to the question whether a
garnishee order could properly be made on an account standing in the
name of the liquidator. When, therefore, this very point was argued in
                                                                            E
a subsequent case before the Court of Appeal in Lancaster Motor Co.
(London) Ltd. v. Bremith, Ltd., [1941] 1 KB 675, the Court held itself
not bound by its previous decision. Sir Wilfrid Greene, M.R., said that
he could not help thinking that the point now raised had ·been deli-
berately pass-ed sub silentio by counsel in order that the point of subs-
tance might be decided. We went on to say that the point had to be
decided by the earlier court before it could make the order which it        F
did; nevertheless, since it was decided "without argument, without
reference to the crucial words of the rule, and without any citation of
authority", it was not binding and would not be followed. Precedents
sub silentio and without argument are of no moment. This rule has
ever since been followed. One of the chief reasons for the doctrine of
precedent is that a matter that has once been fully argued and decided      G
should not be allowed to be reopened. The weight accorded to dicta
varies with the type of dictum. Mere casual expressions carry no
weight at all. Not every passing expression of a Judge, however
eminent, can be treated as an ex cathedra statement, having the weight
of authority.
                                                                            H
    940         SUPREME COURT REPORTS              [1988] Supp. 2 S.C.R.

A        At the end of the day, we must make a mention that Shri
  Verghese, learned counsel for the respondent made a valiant effort to
  bring into play the principles laid down by this Court in Olga Tellis &
  Ors. v. Bombay Municipal Corporation & Ors., [1985] 3 SCC 545 and
  Bombay Hawkers' Union & Ors. v. Bombay Municipal Corporation &
  Ors., [1985] 3 SCC 528. We are afraid, we cannot permit the question
B to be raised for two reasons. In the first place, no such point was taken
  in the writ petition nor any contention advanced before the High Court
  that the removal of the illegal encroachment by the Municipal Cor-
  poration constitutes a threat to life and liberty guaranteed under Art.
  21 of the Constitution or that the right to life includes a right to
  livelihood. Secondly, the rights of the ~arties now stand crystallized by
C the aforementioned judginent of the learned Subordinate Judge in the
  suit brought by the respondent, and the rights have to be worked out in
  terms of the decree passed by him which has since become final.
  Besides, the decision in Olga Tellis is of little avail. Chandrachud, CJ.
  speaking for the Constitution Bench observed that the word 'life' in
  Art. 21 included livelihood, but upheld the validity of ss. 313(1) and
D 314 of the Bombay Municipal Corporation Act, 1888 which provided
  that the Commissioner may 'without notice, cause to be removed'
  obstructions as an encroachment on footpaths could not be regarded as
  unreasonable, unfair. or unjust. The learned Chief Justice however
  said that the section conferred a discretionary power which like all
  power must be exercised reasonably and in conformity with the provi-
E sions of our Constitution. In Bombay Hawkers' Union, Chandrachud,
  CJ .. speaking for himself and one of us (Sen, J.) held that the impugned
  provision was in the nature of a reasonable restriction in the interests
  of the general public, on the exercise of the right of hawkers to carry
  on their trade or business. The learned Chief Justice added:

F              "No one has any right to do his or her trade or business so
               as to cause nuisance, annoyance or inconvenience to the
               other members of the public. Public streets are meant for
               the use of the general public and cannot be used to facili-
               tate the carrying on of private trade or business."

G       These cases undoubtedly raise a human problem and both the
  Delhi Development Authority as well as the Municipal Corporation of
  Delhi should seek to evolve an• innovative plan to rehabilitate the
  unfortunate persons who by force of circumstances are forced to ply
  their trade by squatting in the open on the pavements. At the same          r..:
  time, these pavement-squatters create a serious problem to the civic
H administration as it creates congestion on the public streets and
                  M.C.D. v. GURNAM KAUR [SEN, J.]                 941

obstructs free flow of traffic. As Chandrachud, CJ. rightly observed in A
Bombay Hawkers' Union: "No one has a right to do his or her trade or
business so as to cause nuisance, annoyance or inconvenience to the
other members of the public", and further that "All public streets are
meant for the use of the general public and cannot be used to facilitate
the carrying on of private trade or business". We feel that the Munici-
pal Corporation authorities in consultation with the Delhi Develop- B
ment Authority should endeavour to find a solution on the lines as
suggested in Bombay Hawkers' Union i.e. by creating Hawking and
Non-Hawking Zones and shifting the pavement-squatters to areas
other than Non-Howking Zones. The authorities in devising a scheme
must endeavour to achieve a twin object viz., to preserve and maintain
the beauty and the grandeur of this great historic city of Delhi from an c
aesthetic pbint of view, by reducing congestion on the public streets
and removing all encroachments which cause obstruction to the free
flow of traffic, and rehabilitate those unfortunate persons who by force
of circumstances, are made to ply their .trade or business on pavements'
or public streets.
                                                                         D
      In the result, the appeal must succeed and is allowed. The judg-
ment and order passed by the High Couri are set aside and the writ
petition filed by the respondent in the High Court is dismissed. We
direct however that the appellant Municipal Corporation of Delhi shall
act in conformity with the judgment of the Subordinate Judge, II
Class, Delhi in the aforementioned suits, which, not having been         E
appealed from, has since become final inter partes. No costs.

H.S.K.                                               Appeal allowed.




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