PRAKASH Vs. MUNICIPAL CORPORATION OF DELHI

JUDGEMENT

(1.) This order will dispose of Civil Writ petition Nos. 275/70 and 235/70. The petitioners in these cases have challenged the vires of section 321, 322 and 420 of the Delhi Municipal Corporation Act, 1957 (hereinafter called "the Act"). The questions involved in all the petitions being the same they have been argued together by Shri A. K. Gupta, learned counsel for all the petitioners.

(2.) For purposes of decision, facts in civil writ 275 of 1970 were referred to and it will be sufficient to state them briefly :

(3.) The petitioners in this writ petition carried on business of selling vegetables and fruits by carrying them on 'rehries' (hand-carts) in Tilak Nagar area. Section 420 of the Act provides that no person shall, without or otherwise than in conformity with the terms of a licence granted to him by the Commissioner expose for sale in any place any article whatsoever. According to section 321 of the Act, no person except with the permission of the Commissioner and on pyment of the requisite fee place or deposit upon any street any stall, chair, bench, box, ladder, bale or other things whatsoever so as to form obstruction thereto and encroachment thereon. According to Section 322, the Commissioner is empowered, without notice, to cause the obstruction to be removed. The petitioners along with some other persons who carried on the same trade in Tilak Nagar formed a Union in 1955, known as 'Rehre Union'. This Union, on behalf of its members, applied to the Corporation for the issue of licences to its members under Section 420 of the Act. The Corporation, in the year 1959, issued licences to 57 persons out of 100 members of the Union. The petitioners claim to be amongst the members who were not granted licences. They, however, continued to ply their 'rehries' without licence. In the year 1968, along with others, they formed another registered Union called 'rehrie patri union'. By letter dated May 2, 1968, the new Union applied to the Corporation for allotment of sites for stalls or in the alternative 'for allotment of space on 'tehbazari' basis in Tilak Nagar to its members and also sent a letter to the Vigilance Officer of the Municipal Corporation of Delhi alleging favouratism on the part of the Corporation in withholding licences to them. The Corporation in the same year allotted 56 stalls to the licence holders of the 'rehries' to whom licences had already been granted in 1959. In reply to the application of the new Union, by a letter dated June II, 1968, the Zonal Commissioner informed the President of this Union that no further licences could be issued nor could any further allotment of sites be made to the other persons who were unauthorised 'rehriewalas'. Representation, thereafter, proved of no avail and the petitioners were informed that the Corporation as a policy was not issuing licences to 'rehriewalas'. In these circumstances. they have come up to this Court challenging the vires of the above sections on the ground that the same are ultra vires of Art. 19(1) (g) and Art. 14 of the Constitution. At the time of arguments, the attack was confined to section 321 and 420 only because Section 322 was in the nature of consequential power vested in the Commissioner. Section 321 reads as under :