Sen, J. - (1.) The main question involved in this appeal from a judgment 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 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 precedential 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.
(2.) 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 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 foothpaths. In a police action, the pavements- hawkers were removed from outside the main gate of the Irwin Hospital in and around the subway of Jawahar Lal Nehru Marg on January 15, 1984.
(3.) On February, 22, 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 from interfering with their business of hawking on the pavements outside the main gate of the hospital and/or from demolishing or removing any temporary 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 accordingly 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. 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.;