JUDGMENT Dixit, <NAME>

1. This is an application under Articles 226 and 227 of the Constitution of India by a person who holds stage carriage permits for certain routes including Chhatarpur-Damoh route within the jurisdiction of <ORG>, rewa. The applicant seeks a writ of certiorari for quashing an order of <ORG> passed on 26-11-1959 in the following circumstances.

2. On 15-1-1958 one <NAME>, claiming himself to be the Vice-President of <ORG> of Chhatarpur, tiled an application under Section 59 of the Motor Vehicles Act, 1939, before <ORG> on behalf of his <ORG> for the transfer of the <ORG>'s permit for Chhatarpur-Damoh route in favour of the petitioner <ORG>, praying that the name of the petitioner <ORG> be entered in permit No. 50 held by the <ORG> in respect of Chhatarpur-Damoh route.

The petitioner agreed to this transfer of the permit. On 6-2-1958 <ORG> made an order permitting the transfer of the permit. The opponent No. 3, <NAME>, proprietor of <ORG>, then preferred a revision petition under Section 64-A of the Motor Vehicles Act, on 24-3-1958 before <ORG> for setting aside on various grounds the order of <ORG> sanctioning the transfer.

After the filing of the revision petition, <ORG> gave to the opponent No. 3 a notice to show cause why the revision petition should not be dismissed as barred by time. In response to this notice the said opponent stated that he had applied for a copy of the order of <ORG> on 8-2-1958; that the copy of the order was supplied to him on 27-2-1958; and that, therefore, excluding the time taken by him in obtaining the copy of the order the revision petition was within time.

<ORG> did not pass any order as to whether the opponent No. 3 was entitled to claim that the time required for obtaining the copy of the order of <ORG> should be excluded in computing the period of limitation prescribed by the proviso to Section 64-A of the Motor Vehicles Act. Apparently <ORG> was satisfied with the cause shown, and treating the revision petition as within time proceeded to hear it on merits.

<ORG> took the view that the transfer of the permit was granted without any proper enquiry into the genuineness of transaction and that the application for transfer was not published as required by law and was also not disposed of in the same manner as an application for grant of a permit. Accordingly <ORG> made an order remanding the case to <ORG> with the direction to publish the application of <ORG> for the transfer, for inviting the objections, and then to dispose of the petition after an enquiry into the question whether the transfer was genuine.

3. <NAME>, learned counsel for the petitioner, first urged that under Section 3 of the Limitation Act and . Section 64-A of the Motor Vehicles Act <ORG> was debarred from entertaining the revision petition as it was filed after the lapse of thirty days from the date of the order of <ORG> and the opponent No. 3 was not entitled to claim that the time required for obtaining the copy of the order of <ORG> should be excluded in computing the period of limitation. Learned counsel complained that <ORG> altogether omitted to consider this question of limitation and suggested that the matter should be remitted to <ORG> for determination of that question.

4. This case no doubt raises an important question o£ limitation to which <ORG> did not give the consideration it deserved. But as there is no dispute as to the material dates having a bearing on the question, it is not necessary to remit the matter to <ORG> for determination of the question of limitation, which is now one of pure law.

5. Section 64-A of the Motor Vehicles Act no doubt says that <ORG> shall not entertain any application from a person aggrieved by an order of <ORG> unless the application is made within thirty days from the date of the order. There is no provision in the Motor Vehicles Act for the exclusion of the time required for obtaining a copy of the order of <ORG> sought to be revised under Section 64-A .

Here, admittedly, the revision petition was filed by the opponent No. 3 more than thirty days after the date o£ the order of <ORG>. The question, therefore, arises whether by virtue of Section 29(2) Limitation Act the operation of Section 12(2) of the Limitation Act is attracted and the time taken by opponent No. 3 in obtaining a copy of the order of <ORG> can be excluded thereunder. Section 29(2) runs as follows:

"Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of S, 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-

(a) the provisions contained in Section 4 , Sections 9 to 18 , and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and

(b) the remaining provisions of this Act shall not apply''.

It cannot be disputed that the Motor Vehicles Act is a special law prescribing by Section 64-A a period of limitation for a revision petition under that section. The argument of <NAME> was that Section 29(2) had no applicability here for the reason that the first schedule to the Limitation Act did not prescribe any period of limitation for a revision petition under Section 64-A of the Motor Vehicles Act or for the matter I of that for any revision petition, and, therefore, it could not be said that when Section 64-A provided for an application under that section a period of limitation, it prescribed "a period of limitation different from the period prescribed therefor by the first schedule".

6. In our view, on a true construction of Section 29(2) Limitation Act the contention advanced by the learned counsel for the petitioner cannot be accepted. It is true that Section 29(2) cannot apply unless the special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule". But it is not necessary for the applicability of that section that the difference in the period of limitation should arise by reason of specific prescription of limitation in the first schedule of the Limitation Act .

Section 29(2) is a saving provision, and its real object is to provide that where there is a special law of limitation, it shall override the general law of limitation except to the extent expressly specified in the section. What is, therefore, essential for the purposes of section 29(2) is that the special or local law must vary or differ from Schedule 1 to the Limitation Act by prescribing specific limitation period for any suit or appeal or application. The variation or difference may arise either because the first schedule prescribes a different period of limitation or because it omits to prescribe any period of limitation.

A special law may provide a period of limitation and schedule 1 may omit to do so. None the less the special law would be different from the Limitation Act . Section 29(2) Limitation Act is not very happily worded. It must be construed so as Jo avoid absurdity. The expression "a period of limitation different from the period prescribed therefor by the first schedule'' occurring in Section 29(2) can not be construed as meaning that schedule 1 must also positively prescribe the period of limitation. Such a construction would not be in accordance with the intention of the <ORG> and would lead to an absurdity.

If the construction sought to be put by the learned counsel for the petitioner were accepted, the result would be that Sections 4 , 9 to 18 and 22 will apply to the special law when that law prescribes for any suit, appeal or application a period of limitation different from that specifically prescribed therefor by the first schedule. When the same period of limitation is prescribed in the schedule as well in the special law, these provisions of the Limitation Act will apply proprio vigore without the aid of Section 29(2) . But the provisions will be inapplicable if the special law prescribes a period of limitation and the schedule omits to do so. In our judgment, it would be absurd to think that the <ORG> intended that the aforesaid provision should apply in the first two cases only and not in the third case.

We can think of no valid reason for such an exclusion of the application of Sections 4 , 9 to 18 and 22 to a special law prescribing for any suit, appeal or application a period of limitation and schedule I omitting to prescribe any period therefor. In our judgment, if the first schedule to the Limitation Act omits to prescribe any period of limitation for a particular suit, appeal, or application and the special law provides a period of limitation in such suits, appeals or applications, then Section 29(2) will apply to the special law.

7. We are greatly fortified in the above view by the observations of <NAME> in <CITATION> ., AIR 1953 Bom 35. In that case the question of the applicability of Section 29(2) of the Limitation Act to the Bombay Land Requisition Act, 1948, came up for consideration.

Section 8(3) of the Bombay Act contained a provision for an appeal against the decision of a special officer under Section 8(1) and prescribed a period of limitation of sixty days from the date of the decision.

Schedule 1 of the Limitation Act did not provide for a period of limitation for such an appeal. It was contended in <ORG> that the Bombay Land Requisition Act, 1948, was not a special law prescribing a period of limitation different from the period prescribed for an appeal under Section 8(3) by Schedule 1 to the Limitation Act . Rejecting this contention, the learned Chief Justice said:

"The period of limitation may be different under two different circumstances. It may be different if it modifies or alters a period of limitation fixed by the first schedule to the Limitation Act . It may also be different in the sense that it departs from the period of limitation fixed for various appeals under the Limitation Act . If the first schedule to the Limitation Act omits laying down any period of limitation for a particular appeal and the special law provides a period of limitation, then to that extent the special law is different from the Limitation Act . We are conscious of the fact that the language used by the <ORG> is perhaps not very happy, but we must put upon it a construction which will reconcile the various difficulties caused by the other sections of the Limitation Act and which will give effect to the object which obviously the <ORG> had in mind, because if we were to give Section 29(2) the meaning which Mr. <NAME> contends for, then the result would be that even Section 3 of the Limitation Act would not apply to this special law. The result would be that although an appeal may be barred by limitation, it would not be liable to be dismissed under Section 3 . If possible we must try and avoid such a startling result and we are sure that the <ORG> did not intend that such a result should come about by the language used by it".

8. Therefore on a true and sensible construction of Section 29(2) it must be held that for the purpose of that section the Motor Vehicles Act is a special law Section 64-A of which prescribes a period of limitation different from the period prescribed therefor by the first schedule to the Limitation Act . This, however, does not dispose of completely the objection of the learned counsel for the petitioner that the revision petition was out of time.

Learned counsel further submitted that even if the Motor Vehicles Act was a special law to which Section 29(2) was applicable, Section 12 of the Limitation Act would not apply as its applicability was excluded by the very language of Section 64-A Motor Vehicles Act which enjoins upon <ORG> not to entertain any application against an order of <ORG> unless it was made within thirty days from the date of the order.

We do not agree. The language of clause (a) of section 29(2) is plain enough to show that when a special or local law falls within section 29(2) , then sections 4 , 9 to 18 and 22 of the Limitation Act prima facie apply unless "expressly excluded" by the special or local law. The words "expressly excluded" in Clause (a) of Sub-section (2) of Section 29 mean 'specifically mentioned as excluded' and not the exclusion inferred as a result of logical process of reasoning. No such exclusion of Section 12 , Limitation Act is to be found in the Motor Vehicles Act .

It was then argued that even if section 12(2) of the Limitation Act applied to the Motor Vehicles Act , the opponent No. 3 could not deduct copying time for filing the revision petition as under section 12(2) time for obtaining copies was to be excluded only in case of an appeal, an application for leave to appeal and an application for a review of judgment; and that an application under section 64-A of the Motor Vehicles Act did not fall under any description of the application mentioned in Section 12(2) of the Limitation Act. This is a substantial objection which must prevail.

The fact that Clause (a) of Section 29(2) Limitation Act makes section 12 applicable to a special or local law does not mean that every provision of Section 12 will necessarily apply to every case under the special or local law irrespective of question whether the particular sub-section sought to be applied is in terms applicable to such a case, where the application in respect of which limitation is sought to be computed is not one of the types referred to in Sub-section (2), then the time taken in obtaining copies cannot be excluded in making such computation.

9. The decision in <NAME> v. Commissioner of Sales Tax, Madhya Pradesh, ILR (1955) Nag 515: (S) AIR 1955 Nag 113 is an authority for this proposition. In that case it was held that by virtue of Section 29(2) the period prescribed by Section 23(1) of the C. P. and Berar Sales Tax Act would be regarded as the period prescribed by the First Schedule to the Limitation Act for the purpose of Section 3 of the Limitation Act, and Sections 4 , 9 to 18 and 22 would apply.

It was further held that as Section 12(2) of the Limitation Act applied to appeals, applications for leave to appeal and applications for review of judgments, therefore the copying time could not be deducted in computation of the limitation for an application to <ORG> under Section 23(1) of the C. P. Sales Tax Act as such an application did not fall under any of the categories enumerated in Section 12(2) of the Limitation Act. The learned Judges deciding the case reported in ILR (1955) Nag 515: (S) AIR 1955 Nag 113 (supra) expressed their dissent from the decision in <NAME> v. Commissioner of Income Tax, B. and O., AIR 1930 Pat 14.

In the Patna case, <NAME> expressed the opinion that Section 29 Limitation Act should be liberally construed; that in view of the provision in that section, namely, that "for the purpose of determining any period of limitation prescribed for any suit, appeal and application by any special or local law," it would not be straining the law to hold that the main principle laid down in Section 12 of the Limitation Act that the period for obtaining copies should be excluded in computing the period of limitation in certain cases had been made applicable by Section 29 Limitation Act in the case of a suit, appeal or application under the special law for which a period of limitation had been prescribed and this would cover an application under Section 66(2) and (3) Income-tax Act .

The learned Judge, however, based his ultimate conclusion not on the terms of Section 12(2) of the Limitation Act but on the general principle of section 12(2) , It is difficult to accept the Patna view based on equitable construction of Section 12 and on the general principle underlying Section 12(2) of the Limitation Act. It is well settled that in the construction of a statute of limitation equitable considerations are out of place and the strict grammatical meaning of the words is the only safe guide.

10. Realising this difficulty, <NAME>, learned counsel for opponent No. 3, placed in the forefront of his argument the contention that a liberal construction should be applied to the term 'appeal' occurring in Section 12(2) of the Limitation Act and that the petition under Section 64-A Motor Vehicles Act should be treated as an appeal for the purpose of Section 12(2) . Learned counsel placed reliance on <CITATION> , AIR 1941 Mad 589 and <CITATION> , AIR 1937 Mad 385 (FB).

In view of the decision of this Court in ILR (1955) Nag 515: ((S) AIR 1955 Nag 113) we cannot accede to this contention. That decision in effect holds that the applicability of Section 12(2) of Limitation Act is confined to appeals, applications for leave to appeal and applications for review of judgment, as they are understood in the technical sense. The enumeration in Section 12 of different categories of legal proceedings in which time can be excluded is itself a pointer to the fact that the descriptive terms of legal proceedings have been used in that section in technical sense.

In AIR 1941 Mad 589, <NAME>, J. no doubt held that the term 'appeal' occurring in Section 12(2) Limitation Act should be given an extended meaning so as to include an application under Section 73 of the Madras Village Courts Act, 1888. The learned Judge relied on a <ORG> decision of <ORG> in AIR 1937 Mad 385. . We do not think that the decision in the case of AIR 1937 Mad 385 (supra) or the observations of <ORG> in <CITATION> , AIR 1932 PC 165 as to the 'ordinary acceptation' of the term "appeal", which were followed in (AIR 1937 Mad 385) can be legitimately called in aid for giving an extended meaning to the word 'appeal' as used in Section 12(2) of the Limitation Act.

In AIR 1937 Mad 385 (supra), applying the decision in AIR 1932 PC 165 it was held that article 182(2)  Limitation Act applied to civil revision petitions as well and not only to appeals in the narrower sense of that term as used in the Civil Procedure Code. It must be remembered that it was while dealing with the question of the starting point of limitation under article 182(2) for the execution of a decree or an order where there has been an appeal that <ORG> made the observation that:

"There is no definition of appeal in the Civil Procedure Code, but their Lordships have no doubt that any application by a party to an appellate <ORG>, asking it to set aside or revise a decision of a subordinate <ORG>, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent."

The reasoning which their Lordships of <ORG> gave for reading the word 'appeal' as used in article 182 in a wider sense was:

"It is at least an intelligible rule that so long as there is any question sub judice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage."

This reasoning has clearly no applicability in the construction of Section 12(2) and there is no warrant for reading the observation of <ORG> as laying down that the term 'appeal' must be understood in its ordinary acceptation wherever it has been used in the Limitation Act . After all, as pointed out by Lord <NAME> in <NAME> v. <NAME>, 1901 AC 495, "every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found."

11. <NAME> also referred us to <CITATION> , AIR 1960 Pat 212 in which it has been held that Section 29(2) applies to Motor Vehicles Act , 1939, and Section 12 of the Limitation Act also applies to it. The decision is not of much assistance. The real question that was decided in that case was whether the time between the passing of an order and its communication could be deducted under Section 12(2) of the Limitation Act. The question whether Section 12(2) at all applies to a revision application under Section 64-A of the Motor Vehicles Act was not raised in that case.

12. If, as we think an application under Section 64-A Motor Vehicles Act is not an appeal or any application of the types referred to in Section 12(2) , then the opponent No. 3 was not entitled to claim deduction on account of the time taken by him in obtaining the copy of the order of <ORG>. It follows, therefore, that the revision petition preferred before <ORG>, was barred by time and could not be entertained by <ORG> under Section 64-A of the Motor Vehicles Act. The revision petition being barred by time, <ORG> had no power to disturb the order of <ORG>.

13. In this case at the close of the hearing orders were reserved. When the order proposed to be passed was laid on the table of the <ORG> for inspection of the counsel appearing in the case, learned counsel appearing for the opponent No. 3 sought leave to address some arguments on the applicability of the decision in ILR 1955 Nag 515: (S) AIR 1955 Nag 113 which was not cited at the bar. We permitted him to do so. On behalf of the said opponent <NAME> submitted that the decision in <NAME>'s case, ILR 1955 Nag 515: (S) AIR 1955 Nag 113 (supra) nowhere holds that section 12(2) Limitation Act applies only to appeals, applications for leave to appeal and applications for review of judgments and not revisional applications.

He laid emphasis on the words "for the purpose of determining any period of Limitation prescribed for any suit, appeal or application" occurring in Section 29(2) Limitation Act, and said that they made Section 12(2) Limitation Act applicable to an application in revision permissible under any special or local law for which limitation has been prescribed therein. Learned counsel repeated his argument that the word 'appeal' in Section 12(2) Limitation Act should be given a wide construction so as to include a revision petition. He referred us to <CITATION> , AIR 1950 Cal 356 and <CITATION> , AIR 1959 All 500.

14. We are still not persuaded" to accept the contention that Section 12(2) applies to a revision petition under Section 64-A o£ the Motor Vehicles Act . It is quite true that in ILR (1955) Nag 515: (S) AIR .1955 Nag 113 (supra) Section 12(2) Limitation Act was held inapplicable in computing the period of limitation for making a reference under Section 23(1) of the Central Provinces and Berar Sales Tax Act. But from the reasoning given in that case and the categories of proceedings mentioned to which according to <ORG> in <NAME>'s case, ILR 1955 Nag 515: (S) AIR 1955 Nag 113 (supra) section 12(2) Limitation Act, was applicable, there can be no escape from the conclusion that Section 12(2) applies only to appeals, applications for leave to appeals and applications for review of judgments.

The argument that as Section 29(2) Limitation Act itself provides that "for the purpose of determining any period of limitation prescribed for any application for any special or local law" the provisions inter alia of Section 12 shall apply if not expressly excluded, therefore Section 12(2) , Limitation Act would apply to an application in revision, ignores the fact that Section 29(2) does not deal with the applicability of Section 12 alone. It makes the provisions contained in several sections of the Limitation Act applicable for purposes of determining the period of limitation prescribed for any suit, appeal or application.

It may be that the provisions of any of these sections enumerated in clause (a) of Section 29(2) do not in terms apply to a suit, or to an appeal, or to an application. If they do not so apply, it would not be permissible to make them applicable merely by the use of the words "for any suit, appeal or application" occurring in Section 29(2) Limitation Act. To do so would be to rewrite Section 29(2) and the relevant sections of the Limitation Act .

It is noteworthy that clause (a) of Section 29(2) says: "the provisions contained in. section... .shall apply". This means that the formal legal statement contained in the relevant section shall apply and not the principle of it or the analogy. If Section 29(2) had been so worded as to say that the determination of any period of limitation prescribed for any suit, appeal or application by any special or local law shall be as in Section 12 , the matter would have been different.

But it says inter alia that the provisions contained in Section 3 shall apply. If Section 29(2) is applicable to any special or local law, then what that section in effect says is that the limitation prescribed by the special or local law shall be read as if incorporated in the first schedule, and on this fiction Section 3 and other provisions mentioned in clause (a) shall be applied. The result is that a suit, appeal or application must come within the terms of the provisions of any of the sections enumerated in clause (a) before that section can be applied to it.

The decisions cited by the learned counsel for the opponent do not in any way support his contention. The construction put in the Calcutta case, AIR 1950 Cal 356, (supra) on Section 29(2) is no different from that stated by us. In AIR 1959 All 500 all that was held was that Section 12(2) Limitation Act applies to an application for leave to appeal under Section 417(4) Cri. P. C.

If the Code of Criminal Procedure is a special or local law within the meaning of Section 29(2) , then it is obvious that Section 12(2) would in terms apply to an application for leave to appeal under Section 417(4) Cri. P. C. It may be pointed out that the decision in ILR 1955 Nag 515: (S) AIR 1955 Nag 113 has been followed by a Full Bench consisting of five Judges in M.S. Gopaldas v. Commr. Sales Tax U. P., (S) AIR 1956 All 305 and it has been held that Section 12(2) Limitation Act provides for the exclusion of time only in computing the period of limitation prescribed for an appeal, an application for leave to appeal, and an application for review.

It has been further laid down in the Allahabad case that there is no justification for holding that Section 29(2) enlarges the scope of the provisions made applicable by it to computation of period of limitation prescribed under a special or local law beyond the scope plainly laid down in those provisions when they are applied for the purpose of computing the period of limitation under the Indian Limitation Act itself.

15. It is no doubt true that in its comprehensive sense an appeal would include any proceeding taken to rectify an erroneous decision of an inferior court by a higher court. But, as we have endeavoured to show earlier, the term 'appeal' in Section 12 (2) means appeals made eo nomine under a statute. If a statute makes a real distinction between an appeal and a revision, and between the exercise of appellate and revisional powers, then there can be no justification whatsoever for saying that an appeal under that Act would also include a revision petition.

This distinction has been recognised by Section 64 of the Motor Vehicles Act which deals with appeals, and by Section 64-A which is concerned with a revision petition in a case in which no appeal lies. The fact that a revision petition is competent only in a case where no appeal lies is itself significative of the distinction that the statute makes between a revision and an appeal.

It is well known that the right of appeal is a substantive right created by a statute and that the appellate court when it interferes with a decision of a lower court does so not because there has been a gross injustice or hardship to a party but because it disagrees with the conclusions arrived at by the lower court whether on fact or on law. Even when an appeal is dismissed, the appellate court exercises jurisdiction. But in the case of exercise of revisional jurisdiction as in Section 64-A , it is entirely discretionary for the revising authority whether to exercise the jurisdiction or not.

If the authority acting in revision interferes under Section 64-A of the Motor Vehicles Act with the decision of an inferior tribunal or court, it does so on the ground that the decision is improper or illegal or not according to justice. When the authority dismisses a revision petition, it abstains from exercising the revisional jurisdiction and allows the inferior tribunal or court's order to stand. Thus a revision petition under Section 64-A Motor Vehicles Act stands on a different footing. It is a matter between <ORG> and <ORG>.

It must be noted that under Section 64-A revisional powers can be exercised without an application of any of the parties concerned, and when that section speaks of a revision petition being filed by a person aggrieved by an order of <ORG> within thirty days of the order, it only provides a procedure for invoking the revisional jurisdiction of <ORG>. It is, therefore, erroneous to say that for the purposes of the Motor Vehicles Act there is no distinction between an appeal and a revision and, therefore, a revision application would fall within the term 'appeal' as used in Section 12(2) Limitation Act.

16. <NAME>, learned counsel for opponent No. 3, further said that even if the revision petition filed by the opponent No. 3 before <ORG> was barred by time, the order of <ORG> should be affirmed as that body could suo motu set aside the order of <ORG> on finding it improper or illegal. The short answer to this submission is that here while setting aside the order of <ORG> <ORG> did not purport to act on its own motion under Section 64-A . That being so, it is not necessary to consider whether under Section 64-A <ORG> is competent to act on its own motion when an application filed by a person aggrieved by an order of <ORG> Is barred by time.

17. In this view of the matter, it is not necessary to consider the further contention of the learned counsel for the petitioner that <ORG> set aside order of <ORG> on altogether untenable grounds. But we must add for the guidance of <ORG> that the provision in Section 59(1) of the Motor Vehicles Act that a permit shall not be transferred except with the permission of the transport authority is not a mere formality. The expression "with the permission of the transport authority" is not a mere figure of speech.

In considering the question whether transfer of a permit should or should not be sanctioned, the transport authority is required to consider the genuineness of the transaction as well as its propriety and legality. This is evident from Rule 68 of the Motor Vehicles Rules as in force in that part of Madhya Pradcsh which was formerly Vindhya Pradcsh. Sub-rule (b) of Rule 68 says that after the receipt of a joint application for transfer under Sub-rule (a) <ORG> may require the holder of the permit and the intended transferee to state in wilting whether any premium, payment or other consideration has been paid or received.

<ORG> has been given the power to summon both the parties to the application if it thinks necessary. It is also open to the authority to deal with the application for transfer as if it were an application for a permit. It is only when <ORG> is satisfied that the transfer of a permit may properly be made that he can under Sub-rule (e) take further steps for making the transfer effective.

If, therefore, <ORG> sanctions the transfer merely as a matter of course without addressing itself to the genuineness, legality and propriety of the transfer and sanctions the transfer by just writing the word 'permitted', <ORG> would be perfectly justified in setting aside the transfer and directing <ORG> to hold an enquiry into the genuineness of the transaction and the legality and propriety of the transfer and then pass a proper order with regard to the recognition or refusal of the transfer.

18. For these reasons, we allow this petition and issue a writ of certiorari quashing the decision dated the 26th November 1959 of <ORG>. The petitioner shall get costs of this petition. Counsel's fee is fixed at Rs. 100/-. The amount of security deposit be refunded to the petitioner.


ORDER PATANJALI SASTRI, J. - This is a petition under Section 66 (2) of the Indian Income-tax Act praying that this Court should direct <ORG> to refer the following questions to this Court for decision :-

"(1) Where it was found that the assessment year 1942-43 the business of <NAME>, was the sole business of <NAME>, had the Income-tax Officer jurisdiction to give an inconsistent and different finding on the same materials and evidence that for the succeeding assessment year 1943-44 the same business belonged to a firm of <NAME> and <NAME>.

(2) Whether the finding given by the Income-tax Officer regarding the ownership of the business of <NAME> & Co., in the assessment year 1942-43 was not final and conclusive so as to preclude the Income-tax Officer from coming to a different finding in the succeeding assessment year in the absence of fresh facts or materials, the previous finding stopping the Income-tax Officer on grounds of natural justice and equity embodied in the principles of res judicata."

The <ORG> refused to refer these question on the ground that the only question that was raised and argued before it was the question of fact, namely, whether the business of <NAME>, also belonged to the appellant firm or it was independent concern belonging to one of the partners, <NAME>, and that the questions now sought to be raised before <ORG> were not raised before it at the hearing of the appeal. The <ORG> therefore took the view that these question did not arise from its order and accordingly rejected the application for reference made under Section 66 (1) of the Act. Thereupon the appellant preferred the present application under Section 66 (2) asking this Court to direct the Appellate <ORG> to state a case and to refer the questions aforesaid.

Section 66 (1) of the Act provides :-

"Within sixty days of the date upon which he is served with notice of an order under sub-section (4) of Section 33 the assessee of the Commissioner may, by application in the prescribed form, accompanied where application is made by the assessee by a fee of one hundred rupees, require <ORG> to refer to <ORG> any question of law arising out of such order, and <ORG> shall with ninety days of the receipt of such application draw up a statement of the case and refer it to <ORG>."

It will be seen that the question of law which <ORG> can be required to refer to <ORG> under this provisions is a "question of law arising out of such order" i.e., order of <ORG> passed on appeal. Mr. <NAME> for the petitioner contends that a question, though not raised before <ORG>, can well be said to "arise out of its order," if, on the facts of the case appearing from the order, the question fairly arises. I am unable to agree with that view. I am of opinion that a question of law can be said to arise out of an order of <ORG> only if such order discloses that the question was raised before the <ORG>. This accords with the view taken by <ORG> of the provisions of Section 66 (2) which in this respect used similar language before the section was amended by the amending Act of 1939. See <NAME> v. Commissioner of Income-tax, Punjab.

Mr. <NAME> referred us to <CITATION> , but I do not think that decision has any application here. The question considered by the learned Judges in that case relates to the formulation of questions of law or purposes of reference to <ORG> under Section 66 of the Act. It was held that under that section the assessee is not required to formulate precise question of law, but has merely to require the Commissioner to refer to <ORG> any question of law arising out of an order or a decision. Reference was also made to the <ORG> decision in <ORG> v. <NAME>, where their Lordships allowed a question of law to be raised before them for the first time. The case furnishes no useful analogy as the scope of the remedy under Section 66 of the Indian Income-tax Act has to be determined with reference to the language of the statute.

I am of opinion that <ORG> was right in refusing to refer the questions raised to this Court and this petition must be dismissed with costs, Rs. 150.

<NAME>, <NAME> - I agree and have nothing to add.

Petition dismissed.


JUDGMENT <NAME>, J.

1. This appeal arises out of a suit to enforce the terms of an arrangement (Ex. B) entered into between the parties in 1898, in respect of a temple or mutt founded and endowed by one of their predecessors. Shortly before the date of this agreement, a suit had been filed by the present second defendant against the present first defendant impleading the present plaintiff as second defendant therein, to establish the joint right of that plaintiff with the first defendant to manage this institution. The learned District Judge who tried the suit (O.S. No. 34 of 1896) held against the joint right claimed by the plaintiff. It is unnecessary for us to canvass the grounds of this judgment because before the expiry of the time for perferring an appeal therefrom and, according to the finding of the learned Subordinate Judge, in view of a contemplated appeal by the then plaintiff the parties on the advice of respectable friends settled the dispute in accordance with the terms embodied in Ex. B.

2. Mr. <NAME> on behalf of the appellant before us mainly argued the appeal on the basis that this is something like an ordinary contract of which the plaintiff is now seeking specific performance by way of a direction couched in terms of an injunction and he contended that the agreement contains so many details that if the matter should be viewed as a claim for specific performance it is not an agreement which the court would think of specifically enforcing. This argument seems to us to rest on a fallacy. The arrangement is no doubt in a sense the result of an agreement between the parties but it is an agreement by which they defined the manner in which they are to carry out the duties of a trust which in one view of the law had devolved on them jointly. As pointed out by this Court in <CITATION> (1903) I.L.R. 27 Mad. 192 at 201 and 202 : 13 M.L.J. 341 and by the Judicial Committee in <CITATION> (1906) 33 I.A. 139 : 1. L.R. 29 Mad. 283 at 288 : 16 M.L.J. 265 (P.C.) such arrangements, if they are conducive to the interests of smooth administration of the affairs of the trust, are really in the nature of schemes framed for the management of the trust and will be binding upon the parties thereto and their representatives till modified either by common consent or in some manner known to law. It is not therefore correct to describe the action merely as one for specific performance of a contract.

3. Mr. <NAME> next argued that under the terms of Ex. B the position of the plaintiff and the second defendant was merely that of a kind of agent and not that of a co-trustee. We are unable to agree with this contention. There are no doubt certain clauses which deal with documents to be taken-in respect of the transactions of the trust, providing that the document should be taken in the first defendant's name as trustee. We do not understand those clauses to mean that the first defendant was to have any different legal status from his brothers. The only arrangement was that documents relating to the trust should be taken in his name, describing him as trustee. The other provisions of Ex. B make it clear that for legal purposes their rights were regarded as equal, though in respect of prasadams a small excess is provided for in favour of the first defendant. It is noteworthy that the right to settle the budget, the right to inspect the accounts and the right to decide upon loans or purchases out of the funds of the institution are given to the three jointly and the arrangement is intended to be perpetual so as to be binding upon the descendants of the parties as well. The argument that the plaintiff was merely constituted as an agent is therefore untenable.

4. It was next argued that if the Court should give effect, to the terms of Ex. B the Court will be compelling the first defendant to run the risk of a breach of trust and reference was made in this connection to Section 26 of the Trusts Act. The answer to this argument is furnished by the observation of <ORG> in <CITATION> (1906) 33 I.A. 139 : 1. L.R. 29 Mad. 283 at 288 : 16 M.L.J. 265 (P.C.). Such arrangements for management of an institution are not in any sense an alienation of the office or delegation of the duties of the office because ex hypothesi the arrangement is made between persons who are jointly entitled to act as trustees. Section 26 no doubt provides for the liability of a trustee who hands over trust funds into the hands of his co-trustee without seeing that the terms of the trust are carried out. If under the terms of Section 26 the obligation rests upon the first defendant to see that the plaintiff carries out the terms of the trust we see no reason why the first defendant should not see to it.

5. The decision in <CITATION> (1913) I.L.R. 41 Cal. 19 and Crosse v. Glennie (1843) 2 Y & C.C.C. 237 : 63 E.R. 104 do not really bear upon the case. Neither of them related to the rights and duties of trustees inter se; and in Crosse v. Glennie (1843) 2 Y & C.C.C. 237 : 63 E.R. 104 Sir J. L. Knight Bruce V.C. only said that <ORG> need not grant relief in the case because it appeared to the learned Judge that the plaintiff had his remedies at law. At the end of the judgment, he makes it clear that he was dismissing the petition without prejudice to any action or application for mandamus.

6. Our attention was invited to the decision of this Court in <CITATION> (1915) 2 L.W. 607 where it was pointed out that even as against a trustee there could be no executable direction to carry out a particular festival. We are not at present concerned with the stage of execution of the decree. But we do not think that the learned Judges there intended to say that the rights of a person claiming to be a joint trustee could not be declared by a decree or that an injunction could not be issued against trustees for any purpose whatever.

7. There is however some force in the appellant's contention that the decree as framed by the learned Subordinate Judge may give rise to difficulties as throwing upon the <ORG> the duty of executing every direction contained in Ex. B. We do not think this was really what was intended; but to avoid any misapprehension we could modify the terms of the decree as follows. For the words It is ordered and directed that the first defendant do carry out the terms of the suit agreement. (Ex. B.). dated 6th April 1898 "substitute" that the terms of the agreement Ex. B dated 6th April 1898 are binding on the parties.

8. For the words:

allowing the plaintiff to act as joint trustee and the first defendant do further bring into the <ORG> accounts and <ORG> custody the produce of the <ORG> lands and rnnd it over to the plaintiff in terms of the said agreement dated 6th April, 1898 (marked as Ex. B in the suit).

9. Substitute the following.

and it is ordered and directed that the first defendant do bring into the <ORG> accounts and <ORG> custody the produce of the <ORG> lands or their proceeds up to this date and hand the same over to the plaintiff in terms of Ex. B to be applied by the plaintiff for the purposes of the trust and the first defendant be restrained by an injunction from interfering with the exercise of the plaintiff's right as joint trustee and in accordance with the terms of Ex. B.

10. As the appeal has substantially failed the appellant will pay the respondent's costs of this appeal.


PETITIONER: MUNICIPAL CORPORATION OF DELHI Vs. RESPONDENT: GURNAM KAUR DATE OF JUDGMENT12/09/1988 BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) VENKATARAMIAH, <NAME>, B.C. (J) CITATION: 1989 AIR 38 1988 SCR Supl. (2) 929 1989 SCC (1) 101 JT 1988 (4) 11 1988 SCALE (2)1155 CITATOR INFO : R 1989 SC1988 (33) ACT: Delhi Municipal <ORG> Act, 1957--Sec. 320 Bar on illegal encroachment on public land--Sec. 322--Exercise of power by Commissioner to remove encroachment. In a Writ Petition under Article 226 of the Constitution <ORG> restrained <ORG> from stopping pitching of a stall on public land--Held <ORG> could not give sucha direction contrary to provisions of Section 320 and 322. % Precedent--Precedential value of a direction made by <ORG> 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 is binding on an authority is the principle upon which the case was decided-- Obiter dicta are not binding. HEADNOTE: Some persons were plying their business by squatting on pavement in front of a hospital in Delhi and had put up stalls or kiosk allegedly on <ORG> under a licence under section 321 of the Delhi Municipal <ORG> Act, 1957. The Delhi Municipal <ORG> tried to remove them by demolishing their stalls etc. These persons filed suits in <ORG> praying for perpetual injunction restraining the <ORG> 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 plaintiffs' main claim seeking a declaration that the Municipal <ORG> had no right or authority to remove the stalls built up by them. He however held that by virtue of the <ORG> licence granted in their favour the plaintiffs had acquired the right to occupy and carry on business at the suit sites till their licence was not terminated by the <ORG> according to the procedure laid down in proviso (a)(ii) of Sub-Section of Section 430 of the Act. Two of the squatters namely <NAME> and his brother filed writ petitions in this <ORG> seeking a writ of mandamus ordaining the Municipal <ORG> to allot each of them a suitable site on pavement in front of the main gate of the hospital. (<NAME> & Anr. v. PG NO 929 PG NO 930 <ORG>., Writ Petition Nos. 981--982 of 1984.) This <ORG> directed that the petitioners be rehabilitated by the Municipal <ORG> by construction of stalls according to the sketch plan filed by the <ORG> with a further direction that each of them would be put in possession of one of the stalls. The <ORG> 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 filed suits in the court of Subordinate Judge, moved the <ORG> under Article 226 of the Constitution for a writ and direction restraining the <ORG> from evicting her without the due process of law. The <ORG> partly allowed the writ petition holding that the judgment of the Learned Subordinate Judge which was a judgment inter partes had become final not having been appealed from and therefore the respondent could not be removed from pitching her stall on the pavement outside the hospital where she was squatting. Relying on the decision of this <ORG> in <NAME>' case the <ORG> gave an option to the <ORG> either to construct the stall similar to the one they have constructed in compliance with the direction made by this <ORG> in <NAME>' 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 <ORG>, the Municipal <ORG> filed this appeal by special leave. Allowing the appeal this <ORG>, HELD: The Learned Judges of the <ORG> failed to appreciate that this <ORG> in <NAME>' 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 was any statutory obligation cast on the Municipal <ORG> to provide 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 exercise of its powers under s. 322 of the Act for the removal of such encroachment on any public street, footpath or pavement. That apart, the <ORG> could not have made the impugned direction contrary to the provisions contained in ss. 320 and 322 of the Act. [937A-C It is axiomatic that when a direction or order is made by consent of the parties, the <ORG> does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as 'law' applies to the principle of a case, its ratio decidendi. The only thing in a Judge's decision PG NO 931 binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by this <ORG> in <NAME>' case could not be treated to be a precedent. The <ORG> failed to realise that the direction in <NAME>' case was made not only with the consent of the parties but there was an interplay of various factors and the <ORG> was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. [937F-H; 938A] Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in <NAME>' case and to the learned Judge who agreed with him, we cannot concede that this <ORG> is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal <ORG> to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the <ORG> because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. [938F-G ] A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. [938G-H] <NAME> on Jurisprudence by P.J. Fitzgerald, 12th Ed.; <NAME> v. Worth of Paris Ltd. (K),  2 All E.R. 905 (C.A.) and <CITATION> .,  1 KB 675, referred to. Precedents sub silentio and without argument are of no moment. This rule'has ever since been followed. One of the chief reasons for the doctrine of precedents is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement. having the weight of authority. [939G-H] PG NO 932 <CITATION> .,  3 SCC 545 and <CITATION> .,  3 Scc 528, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3189/1989.

From the Judgment and Order dated 11.3.1987 of <ORG> in C.W.P. No. 875 of 1986 <NAME> and <NAME> for the Appellant. <NAME> for the D.D.A.

<NAME> and <NAME> for the Respondent. The Judgment of the <ORG> was delivered by SEN, J. The main question involved in this appeal from a judgment and order of <ORG> of <ORG> dated March 11, 1987 is whether <ORG> was justified, in the facts and circumstances of the case, in issuing a direction to the appellant <ORG> to construct a stall or a kiosk on the pavement near the OPD gate of <ORG>, Delhi within two months from the date of its order or in the alternative, to furnish a plan with requisite sanction to the respondent <NAME> 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 <ORG> 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.

It appears that sometime in 1984, the appellant <ORG> of Delhi sought police help to clear the pavement near the OPD gate of <ORG>, now known as <ORG>, 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 <ORG> 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 footpaths. In a police action, the pavements-hawkers were removed from outside the main gate of <ORG> in and around the subway of Jawahar Lal Nehru Marg on January 15, 1984.

On February 22, 1984, eight of these pavement squatters instituted separate suits in <ORG>, II Class, Delhi against <ORG> seeking the relief of perpetual injunction restraining the appellant, its officers and servants from interfering with their business of hawking on the pavements out-side 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 <ORG> 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 <ORG> accordingly under s. 322 of the Delhi <ORG> 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 there of 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.

It is common ground that the plaintiffs had each been occupying a site admeasuring 6 ft. x 4 ft. on tehbazari basis since the year 1975. The contention of the plaintiffs was that <ORG> having itself allotted the plaintiffs licence under s. 321 of the Act on tehbazari basis to use the pavement in front of the main gate of <ORG> for carrying on their business on specific terms and conditions, such grant of licence or permission gave to them a right under s. 430 of the Delhi Municipal Corporation Act, 1957 which could not be terminated unilaterally without affording them an opportunity of a hearing under proviso (a) to sub-s. (3) of s. 430 of the Act. On February 24, 1984, <NAME>, learned counsel appearing for the plaintiffs in all the suits made a statement to the effect:

"The plaintiffs shall occupy only 6 ft. x 4 ft. space as allotted to them by the defendants and no further space beyond those limits. They have not constructed any permanent structure on the site and shall not construct any structure thereon, whether permanent or temporary.'' Accordingly, the learned Subordinate Judge during the course of his judgmeat observed:

PG NO 934 "In view of the above statement by the counsel for plaintiffs, it is clear that the stall if any erected or posted at the suit sites is without authority. Placing of such a stall at the suit site amounts to encroachment within the meaning of sec. 322 of the DMC Act which stall can be removed at any time by the defendant <ORG> without notice. In this light the plaintiffs have no right to claim an injunction against demolition or removal of any stall or other structure if posted or placed or affat the same time defendant <ORG> cannot remove the plaintiffs nor interfere with their business at the suit site in any other manner without terminating their licence to occupy the said sites in accordance with the procedure contained in sec. 430(3) of DMC Act."

The learned Judge accordingly partly decreed the plaintiff's claim to the extent indicated hereafter: "Consequently, all these suits are partly decreed to the effect that the defendants are restrained permanently from removing the palintiffs from the suit sites without terminating the Tehbazari permission granted in their favour in accordance with the provisions of s. 430(3) of the DMC Act. The prayer for injunction against demolition or removal of the stalls of the plaintiffs is disallowed."

It therefore follows that the learned Subordinate Judge accordingly disallowed the plaintiffs main claim seeking a declaration that <ORG> had no right or authority to remove the stalls built up by them on the pavement in front of the main gate of the Irwin Hospital. He however held that by virtue of the tehbazari licence granted in their favour, the plaintiffs had acquired the right to occupy and carry on business at the suit site each admeasuring 6 ft. x 4 ft. in question and till their licence was not terminated by <ORG> after PG NO 935 following the procedure laid down in proviso (a) to sub-s. (3) of s. 430 of the Act. It had no power to remove the plaintiffs nor interfere with their business at the suit sites. It could not take recourse to its power of removal of encroachment without notice under s. 322(a) of the Act. It is equally evident that the learned Subordinate Judge partly decreed the plaintiffs' claim only to that extent that it restrained <ORG> from taking any steps for removal of such encroachment by the plaintiffs inasmuch as the power under s. 322(a) of the Act cannot be exercised without following the procedure laid down in s. 430(3) of the Act and without terminating the tehbazari licence granted in their favour. The respondent <NAME> was one of the plaintiffs and she had been in occupation of a site admeasuring 6 ft. x 4 ft. on the basis of tehbazari licence intermittently since the year 1960 and had been paying the licence fee therefor. The decree passed by the learned Subordinate Judge not having been appealed from by <ORG> of Delhi has since become final. The rights of the parties therefore stand crystallized by the terms of th decree passed by the learned Subordinate Judge. There was a further development. Two of the squatters, namely, one <NAME> and his brother moved this Court by petition under Art. 32 of the Constitution, being Writ Petition Nos. 981-82/84 <NAME> & Anr. v. <ORG>, seeking a writ in the nature of mandamus ordaining <ORG> to allot each of them a suitable site on the pavement in front of the main gate of the Irwin Hospital. Their grievance was that they were similarly situate like 10 other squatters who were all plying their trade on the pavement in front of the main gate of the Irwin Hospital catering to the needs of the visitors to the hospital by selling tea, snacks, pan, bidi etc. and although <ORG> had rehabilitated the said 10 squatters by allotment of stalls to them, despite repeated applications there was no redressal of the wrong done to them inasmuch as <ORG> had arbitrarily and without any rational basis, denied them such facility. Further, it was alleged in that case that the father of the petitioners had been occupying the site admeasuring 6 ft. x 4 ft. on tehbazari licence since the year 1947 till his death in 1975 and thereafter the petitioners were permitted to occupy the same on similar terms but <ORG> illegally caused their removal with police help. It was averred that <ORG> could not take recourse to its power of eviction under s. 322(a) of the Act without terminating the tehbazari licence in their favour and without following the procedure prescribed by proviso (a) to s. 430(3) of the Act. Several adjournments were taken in an effort to find a solution to PG NO 936 the problem by learned counsel appearing for <ORG>.

Eventually, <NAME>, J. speaking for a Bench of two Judges by his order dated March 29, 1985 made a direction for rehabilitation of the petitioners. Virtually, it was a consent order as learned counsel appearing both for <ORG> and <ORG> requested the <ORG> to give a direction keeping in view the sketch plan furnished by <ORG>, and gave an undertaking that any direction made by the <ORG> for rehabilitation of the petitioners would be carried out. The <ORG> accordingly directed that the petitioners be rehabilitated by <ORG> by construction of stalls according to the sketch plan with a further direction that each of them would be put in possession of one of the stalls. The direction was however made subject to the condition that such construction of stalls would not cause any further obstruction to the free flow of traffic. The <ORG> also made it clear that the direction should not be treated as a precedent.

Presumably because of the direction made by this Court in <NAME> case. the respondent <NAME> moved <ORG> under Art. 226 of the Constitution in April, l986 for the issuance of an appropriate writ or direction restraining <ORG> from evicting her without the due process of law. <ORG> of <ORG> by the impugned judgment has partly allowed the writ petition holding that the judgment of the learned Subordinate Judge which was a judgment inter partes had become final, not having been appealed from and therefore the respondent could not be removed from pitching her stall on the pavement outside the main OPD gate of the Irwin Hospital where she was squatting. The learned Judges relied upon the decision of this Court in <NAME> case where a direction was made requiring <ORG> to construct stall for the petitioners in that case, so that they could be rehabilitated. The learned Judges felt that it was equally desirable that the respondent <NAME> instead of being allowed to squat on the pavement, should be provided with a stall of the same pattern and design as had been done for the two squatters in <NAME> case. <ORG> gave an option to <ORG> either to construct a stall similar to the one they had constructed in compliance with the direction made by this Court in <NAME> 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.

PG NO 937 We find it rather difficult to sustain the judgment of <ORG>. The learned Judges failed to appreciate that this Court in <NAME> 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 was any statutory obligation cast on <ORG> to provide alternative site to a person making illegal encroachment on a public place like any public street etc. contrary to s. 320 of the Act, as a condition precedent to the exercise of its powers under s. 322 of the Act for the removal of such encroachment on any public street, footpath or pavement. That apart,<ORG> could not have made the impugned direction contrary to the provisions contained in ss. 320 and 322 of the Act. S. 320(1) in terms creates a statutory bar against illegal encroachment on any portion of a public street. It provides that "No person shall, except with the permission of the Commissioner granted in this behalf, erect or set up any booth or other structure whether fixed or movable or whether of a permanent or temporary nature, or any fixture in or upon any street etc". Having regard to this express provision, <ORG> failed to see that the respondent <NAME> had no legally enforceable right to the grant of a writ or direction in the nature of mandamus. <ORG> could not obviously issue any such direction which would be tantamount to a breach of the law. Furthermore <ORG> could not also make the impugned direction in view of the provision contained in s. 322(a) of the Act, which expressly confers power on the Commissioner to cause the removal of any structure which constitutes an encroachment on a public place like a street which is meant for the use of the pedestrains.

It is axiomatic that when a direction or order is made by consent of the parties, the <ORG> does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as 'law' applies to the principle of a case, its ratio decidendi. The only thing in a Judge'sdecision binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by this <ORG> in <NAME> case could not be treated to be a precedent. The High <ORG> failed to realise that the direction in <NAME>case was made not only with the consent of the parties but there was an interplay of various factors and the <ORG> was moved by compassion to evolve a situation to mitigate hardship which PG NO 938 was acceptable by all the parties concerned. The <ORG> no doubt made incidental observation to the Directive Principles of State Policy enshrined in Art. 38(2) of the Constitution and said:

" Article 38(2) of the Constitution mandates the <ORG> to strive to minimise, amongst others, the inequalities in facilities and opportunities amongst individuals. One who tries to survive by one's own labour has to be encouraged because for want of opportunity destitution may disturb the conscience of the society. Here are persons carrying on some paltry trade in an open space in the scorching heat of Delhi sun freezing cold or torrential rain. They are being denied continuance at that place under the specious plea that they constitute an obstruction to easy access to hospitals. A little more space in the access to the hospital may be welcomed but not at the cost of someone being deprived of his very source of livelihood so as to swell the rank of the fast growing unemployed. As far as possible this should be avoided which we propose to do by this short order."

This indeed was a very noble sentiment but incapable of being implemented in a fast growing city like the metropolitan City of Delhi where public streets are overcrowded and the pavement squatters create a hazard to the vehicular traffic and cause obstruction to the pedestrians on the pavement.

Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in <NAME> case and to the learned Judge who agreed with him, we cannot concede that this <ORG> is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on <ORG> to direct removal of encroachments from any public place like pavement or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of <ORG> because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the <ORG> on the question or not whether any direction could properly be made compelling <ORG> to construct a stall at the pitching site of a PG NO 939 pavement squatter. Professor <NAME>, editor of <ORG>, 12th edn. explains the concept of sub silentio at p. 153 in these words:

"A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The <ORG> may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.

In <NAME> v. Worth of Paris Ltd. (k)., [1936] 2 All E.R. 905 (C.A.), the only point argued was on the question of priority of the claimant's debt, and, on this argument being heard, the <ORG> granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the <ORG> of Appeal in <CITATION> .,  1 KB 675. the <ORG> held itself not bound by its previous decision. Sir <NAME>, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. We went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority.

PG NO 940 At the end of the day, we must make a mention that <NAME>, learned counsel for the respondent made a valiant effort to bring into play the principles laid down by this Court in <CITATION> .,  3 SCC 545 and <CITATION> .,  3 SCC 528. We are afraid, we cannot permit the question to be raised for two reasons. In the first place, no such point was taken in the writ petition nor any contention advanced before <ORG> that the removal of the illegal encroachment by <ORG> constitutes a threat to life and liberty guaranteed under Art. 21 of the Constitution or that the right to life includes a right to livelihood. Secondly, the rights of the parties now stand crystallized by the aforementioned judgment of the learned Subordinate Judge in the suit brought by the respondent, and the rights have to be worked out in terms of the decree passed by him which has since become final. Besides, the decision in <NAME> is of little avail. <NAME>, CJ. speaking for the Constitution Bench observed that the word 'life' in Art. 21 included livelihood, but upheld the validity of ss. 313(1) and 314 of the Bombay Municipal Corporation Act, 1888 which provided that the Commissioner may 'without notice, cause to be removed' obstructions as an encroachment on footpaths could not be regarded as unreasonable, unfair or unjust. The learned Chief Justice however said that the section conferred a discretionary power which like all power must be exercised reasonably and in conformity with the provisions of our Constitution. In <ORG>, <NAME>, CJ. speaking for himself and one of us (Sen, J.) held that the impugned provision was in the nature of a reasonable restriction in the interests of the general public, on the exercise of the right of hawkers to carry on their trade or business. The learned Chief Justice added:

"No one has any right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public. Public streets are meant for the use of the general public and cannot be used to facilitate the carrying on of private trade or business."

These cases undoubtedly raise a human problem and both the <ORG> as well as <ORG> should seek to evolve an innovative plan to rehabilitate the unfortunate persons who by force of circumstances are forced to ply their trade by squatting in the open on the pavements. At the same time, these pavement- squatters create a serious problem to the civic administration as it creates congestion on the public streets and obstructs free flow of traffic. As <NAME>, PG NO 941 CJ. rightly observed in <ORG>: "No one has a right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public", and further that "All public streets are meant for the use of the general public and cannot be used to facilitate the carrying on of private trade or business". We feel that the <ORG> authorities in consultation with the <ORG> should endeavour to find a solution on the lines as suggested in <ORG> i.e. by creating Hawking and Non- Hawking Zones and shifting the pavement-squatters to areas other than Non-Howking Zones. The authorities in devising a scheme must endeavour to achieve a twin object viz., to preserve and maintain the beauty and the grandeur of this great historic city of Delhi from an aesthetic point of view, by reducing congestion on the public streets and removing all encroachments which cause obstruction to the free flow of traffic, and rehabilitate those unfortunate persons who by force of circumstances, are made to ply their trade or business on pavements or public streets. In the result, the appeal must succeed and is allowed. The judgment and order passed by <ORG> are set aside and the writ petition filed by the respondent in <ORG> is dismissed. We direct however that the appellant <ORG> of Delhi shall act in conformity with the judgment of the Subordinate Judge, II Class, Delhi in the aforementioned suits, which, not having been appealed from, has since become final inter partes. No costs.

H.S.K. Appeal allowed