# [1967] 3 S.C.R. 747

- **Citation:** [1967] 3 S.C.R. 747
- **Court:** Supreme Court of India
- **Decided:** 1967-04-20
- **Bench:** K. N. Wanchoo. C.J, V. Bhargava, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1967-3-s-c-r-747-4018
- **Pages:** 12

## Headnote

1'1111j11b Municipll/ Act 1911 (3 of 1911), s.1·, 173, 188-Power to regult1te sale of edibles on public s1rects-St1·eet
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 str~t•.
The vendors flied u petition tor writ in tho Hi~h 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 ..
nc~s.
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 pm·cnting 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
.--
748
SUPREME COURT REPORTS
[1967] 3 s.c.R.
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 App~als Nos.
486492 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. 490492 of 1967).
R. N. Sachthey, for respondent No. 2 (in C. As. Nos.

## Text

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PYARE LAL ETC.
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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-St1·eet
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 str~t•.
The vendors flied u petition tor writ in tho Hi~h 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 ..
nc~s.
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 pm·cnting 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
.--
748
SUPREME COURT REPORTS
[1967] 3 s.c.R.
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 App~als Nos.
486492 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. 490492 of 1967).
R. N. Sachthey, for respondent No. 2 (in C. As. Nos. 486488 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
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PYARE LAL v. N.D.M.C. (Mitter, J.)
749
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 Vice·President of the Municipal Committee to the
association in 1956 for giving the members of the association
certain protection on conditions. It is said that the Vice-President of the Municipal Committee gave an assurance that if the
>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 comF
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 :
H
(a) Condition No. 7 be deleted.
(b) The word 'licencee' shall be
substituted
by "hawkers/squatters''.
750
SUPREME COURT REPORTS
[1967) 3 S.C.t\.
( 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 respondentCommittec 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
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PYAkB LAL v. N.D.M.C, (Mitt~r. 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.
751
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
752
SUPREME COURT REPORTS
(1967) 3 S.C.R.
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
c~ased 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 hawk~rs 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 Mu~cipal 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 :-
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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 toB
(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
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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"·con~itions 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 di~erent purpose.
Ss. 1 n and 173 are generally
atmed at prcv~ntmg 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 co~ectlon. 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
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SUPREME COUR'I' REPORTS
[1967] 3 S.C.R.
holes or excavation on any street or remove mat~rials 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.
Und~r
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
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PYARE LAL v. N.D.M.C. (Mitter, J.)
755·
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 sub·rr. (S), (10) an4 (11) of r. 50.
Under sub·r ( 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 a~ticles 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 byeJaws, 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
r
. .7 56
SUPREME COURT REPORTS
[1967) 3 S.C.R.
.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.
B
c
D
E
F
G
II
B
c
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F
G
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PYARE LAL v. N.D.M.C. (Mitter, J.)
757
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.
•
I
758
SUPREME COURT REPORTS
[1967] 3 s.c.R.
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.