MUNICIPAL CORPORATION OF DELHI versus GURNAM KAUR

Citation: [1988] SUPP. 2 S.C.R. 929 · Decided: 12-09-1988 · Supreme Court of India · Bench: A.P. SEN · Disposal: Appeal(s) allowed

Judgment (excerpt)

'.Y 
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 
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 
A 
B 
c 
D 
E 
930 
SUPREME COURT REPORTS 
[1988] Supp. 2 S.C.R. 
Delhi Administration & Ors., Writ Petition Nos. 981-982 of 1984.) 
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 
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 
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 
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. 
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 e

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