PYARE LAL ETC versus NEW DELHI MUNICIPAL COMMITTEE & ANR.

PYARE LAL ETC.

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 re-gult1te sale of edibles on public s1rects-St1·eet vendors 11[1]/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 Munici-pul 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 con-travene 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 consum-ing 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 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 con-llncJ mere y to pm·cnting obstruction to traffic. Every person has right· to P"'' and rcpass along public slreet. But he cannot be beard to say that he has fundamental right to enrrv on street trading nnd particulnrly in manner which is hound to create in•anitary and un-hygicne C<>nditions in the ncighhourhood. 1758 A-Ill

Roberts v. Hopwood, [1925] A.C. 578, Pyx Granite Co. v. Ministry of Rousing, [1958] 1 All E.R. 625, C. S, S. Motor Service v. Madras Sr.1te, A.I.R. 1~3 Macl. 279 and Westminister Corporation v. London and North Western Railll'ay [1905] A.C. 426, referred to.

CIVIL APPEi.LATE JuR1so1cnoN : Civil App~als Nos. 492 of 1967.

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

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

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

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

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

The Judgment of the Court was delivered by

. Mitter, J. These are seven appeals, by special leave, from judgment and order of the Punjab High Court in Letters Patent Appeal from judgment and order of single Judge dated April 7, 1966.

The facts in all these appeals. bear close resemblance anJ these cases were dealt with by 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 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 seller of potato chops and squatted at site beside the service lane at the back of 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 public street, this was not pressed before the High Court and we will proceed on the basis that as matter of fact, he was squatting on public street. He claimed to hav~ been carrying on his trade at the si\)Tte site from before 1950 He beci\ITle 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

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

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-Presi-B dent of the Municipal Committee gave an assurance that if the >quatters formed themselves into co-operative society for pre-paration 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, co-operative society was formed and the Health Officer of the Municipal Committee in-formed 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 long spell of contest and uncertainty the then President of the Municipal Com-mittee made 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 survey of all squatters and list of them including the peti-tioner was prepared. On December 20, 1963, the New Delhi \I unicipal Committee passed resolution for the grant of licences 10 these squatters. The relevant portion of the same is as follows:-

" l. Temporary tehbazari permits would be issued to verified squatters/hawkers.

2. The hawkers/squatters would be required to sit at the site as might be specifically allotted by the com-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

)llonths' tehbazari fee in advance before the issue of the temporary tehbazari permit.

6. The conditions of the tehbazari permit as men-

tioned above were approved subject to the condition :

(a) Condition No. 7 be deleted.

(b) The word 'licencee' shall be by "hawkers/squatters''.

substituted

( c) The last condition would be os suggested by

the L.A. in his note dated 20-12-1963.

7. The selection and allotment of sites would be

done by sub-committee consisting of P.M.C., S.V.P. and J.V.P."

The petitioner was granted licence to run his potato chops trade at monthly fee of Rs. 25 and he was allotted specific >ite mentioned earlier. Sometime in July 1964 the respondent-Committec sought to impose 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 alter-native 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 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 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 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 peti-tioner to sell his wares on public street under s. 173

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 unconstitu-tional.

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 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 scheme prepared by the senior Vice President regarding re-organisation of procedure (!bout the issue of licences to hawkers, squatters, etc. and by resolution of 29th June 1962 it was resolved that in future sub-committee would go into the matter of determining the persons or ~ategory of per-sons 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 pennit to be granted to hawkers/ squatters were decided upon : wo-forma of tem-porary 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 commit-tee 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. sub-com· mit~ consisting of several municipal officers went round to various places in New Delhi to inspect the sites already selectedfor allotment to hawkers/squatters. They were unable to select any further new sites and made 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 sus-pended with effect from 1-!?-1964. The sale of cooked articles of food gave rise to such insanitary conditions that 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 holder of temporary tebbazari permit bad no right or interest in the land belonging to the N.D.M.C. and that his right was sub-ject to permission by the N.D.M.C: to carry on his trade. The petitioner bad submitted 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 platform at Ramakrisbnapuram (a facility granted to many) but applied for change of trade from potato chops dealer to that of general merchant. He was in-formed 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 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 with-drawn.

The contentions of the petitioner were turned down by the learned single J udgc and his appeal in common with that. ~f. 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 resolution under s. 173 of the Pun1ab Mun1e1pal Act. The relevant portion of the section runs as follows :-

"(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 with-draw the permission, to any person to-

(a) place in front of any building any movable en-croachment upon the ground level of any public street or over or on any sewer, !lrain or water-course or any movable overhanging structure projecting into such public street at point above the said ground level.

( c) deposit or cause to be deposited building mate-rials, goods. for sale, or other articles on any public street, or

( e) erect or set UR any fence, post, stall or scaffolding in any public street.

It was argued that s. 173 only made general provisions but it was open to the N.D.M.C. to frame bye-laws under s. 188 and in the absence of such bye-laws resolution under s. 173 ( 1) could not be passed so as to affect the petitioner's rights. S. 188 provides that committee may, and shall if so required by the State Gov-ernment 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 per-mission;''

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 erect-mg stalls m. public ~treet may be allowed by the municipality on stated occas10ns as m the case of some festivals etc. aain it mav be necessary to seek the pemiission of the municipality to make •

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 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 fram-ing 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 sub-cl. (a) such JUies may specify articles of food or classes of food for the import of which 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 notifi-cation in the Official Gazette, specify in this behalf including registration of the premises where they are manufactured, main-·tcnance of the premises in 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 .s-ponding 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

for sale any of the articles of food specified therein except under 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 grant-ing licence for the manufacture, storage or exhibition of any of the a~ticles of food in respect of which 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 special significance under s. 2 of the Act. The object of this Act was to ensure that food which the public could buy wa.; inter alia prepared, packed and stored under sanitary conditions so as not to be injurious to the health of the people consuming it. The rules framed thereunder would only over-ride rules or bye-Jaws, if any, made by any municipality if they covered the same field. Under s. 173 (1) of the Punjab Municipal Act it is open to 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 lawful trade.

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

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

Our attention was drawn to Halsbury's Laws of England, Vol. 33 (Third Edition), article 998 at page 586 headed "regulation -0f street trading". The learned author thus summarised the law in England :-

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

Nothing in the foregoing provisions ( l) restricts the right of any person to carry on the business of pedlar or hawker in accordance with pedlar's certifi-cate 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 con-nection with the sale, etc., any receptacle which occupies stationary position .in street, other than 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 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 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.

petitioners had right to carry on motor transport business and that this was right guaranteed under Art. 19(1) (g) of the Con-stitution. 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 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 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 judgment of the House o~ Lords in Westminster Corporation v. London and North Western Railway('). There it was observed that 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 obser-vations 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 res-pondent 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 show-ed 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 facili-ties 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 kin'd on public streets which it

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

should have never allowed. Out of sympathy for tbem the . ..,,. N.D.M.C. had permitted the continuance of the trade for 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 right to pass and re-pass aJona DUbllc street. He cannot be heard to say that he has fundamental right to carry 011 street trading and particularly in ~anner which is bound to . create insanitary and unhygienic conditions in the neighbourhood.

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

G.C. Appeals dismissed.