While the Constitution of India, vide Article 19(1)(g), grants to each citizen a fundamental right to carry out trade or profession of his choice, such carrying out of rights is not subject to just limitations. Article 19(6) itself provides a limitation on such rights. In this context the perpetual debate has been the right of an individual versus the concern for or impact on the society.
Speaking in this context, the Andhra Pradesh High Court in a recently reported decision [Karanam Manjunath v. The District Collector, Kurnool, AIR 2010 NOC 948] was required to decide whether it is permissible for a citizen to carry out a trade on the margin of the road where the local authority has permitted them to carry on the trade for some period in the past and now is desirous to removing the shops. Holding that there was no such right to carry on the business on road-margin, the High Court declared in this respect as under;
The question involved in this writ petition is a right to carry on trade and business guaranteed under Article 19(1)(g) of Constitution of India. The right of a citizen to carry on trade on the street in tune with Article 19(1)(g) read with Article 19 (6) is recognised. The Supreme Court in Sodan Singh (supra), Ahmedabad Municipal Corporation v Nawab Khan and various other Judgments of Supreme Court, considered various aspects of the rights and restrictions subject to which such right can be enjoyed. Following the Judgments in Secunderabad Bunks (Kiosks) Owners Association v Commissioner, Municipal Corporation, Hyderabad, and Slum Dwellers Welfare Association v District Collector, Ranga Reddy District, this Court in an unreported Judgment, dated 30.04.2004, in W.P.No.15413 of 1994 (Venkatesh v M.C.H., Hyderabad), reiterated the law as under.
Insofar as the submission that a citizen has right to carry on business on the street is concerned, there cannot be any dispute with the principle of law in view of the decision of the Supreme Court in Sodan Singh (supra). However, the right to carry on business on the street either by moving from one place to another, squatting at one particular place is concerned, it is also well settled that no citizen can cause obstruction to the traffic or pedestrians because the roads and pathways are essentially meant for to pass and re-pass and use for conveyance. A reference may be made to judgment of a Division Bench of this Court, to which I was a member, in Slum Dwellers Welfare Association (supra).
After referring to important case law on the point in Manglaur Municipality v Mahadeoji, Pyare Lal v Delhi Municipality, Himat Lal v Police Commissioner, Ahmedabad, K.Sudarsan v Commissioner, Corporation of Madras, M.A.Pal Mohammed v R.K.Sadarangani Bombay Hawkers’ Union v Bombay Municipal Corporation, Olga Tellis v Bombay Municipal Corporation, Sodan Singh (supra), Delhi Municipal Corporation v Gurnamkaur, P.K.Wariyar v State of Kerala, Sodan Singh (II) v New Delhi Municipal Committee, Gainda Ram (I) v M.C.D.Town Hall, Gainda Ram (II) v M.C.D. Secunderabad Bunks (Kiosks) (supra), Ahmedabad Municipal Corporation (supra), N.Jagadeesan v District Collector, North Arcot, Bapujinagar Khudra Byabasai Association v State of Orissa, Sodan Singh (III) v New Delhi Municipal Committee, Sodan Singh (IV) v New Delhi Municipal Committee, Gainda Ram (III) v M.C.D. and State of Maharashtra v Alka B.Hindge the Division Bench laid down as under.
The law of the streets is well-settled. The road is primarily meant for citizens to pass and repass and use for conveyance….The right to carry on business, trade or profession being a fundamental right under Article 19(1)(g) of the Constitution of India any total prohibition of carrying on business on the road is unconstitutional. However, no citizen can claim absolute right to squat on the road either for the purpose of business or for the purpose of residence. Roads are not meant for building houses and residential huts. Roads are basically meant for citizens for passing and repassing. As long as the citizens’ activity in relation to road does not offend or effect the rights of other citizens, in that the use of the road does not obstruct the other citizens, no objection can be taken. But, when structure or permanent structure for business or residence, the law does not recognise such right.
The right of petitioners to occupy Gram Panchayat road margin – even if it is with permission of the Panchayat – is subject to the right of users of the road. The roads are meant for passing and re-passing by the users and they are not meant for squatters to carry on business. Sections 98 and 99 of Andhra Pradesh Panchayat Raj Act, 1994 (the Act, for brevity) empower, nay, cast a duty on the Gram Panchayat to remove all the encroachments and keep the roads vested in Gram Panchayat under Section 53 of the Act free from encroachments. Section 98(2) of the Act speaks of prescriptive right of a person in occupation of Gram Panchayat land/road and even in such cases, the person squatting on the road margin does not get a right of occupation and if such prescriptive right is proved, he is only entitled for compensation.
Therefore, the petitioners have no right to enforce by filing a writ petition.It is well settled that a writ of Mandamus can be issued only when the petitioner shows enforceable right (see Director of Settlements, A.P., v M.R.Appa Rao[23]). The petitioners have no right to continue to occupy the margin of Gram Panchayat road, especially when the same is causing obstruction for the users.
No comments:
Post a Comment