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1994 DIGILAW 253 (KER)

Mathew v. Supdt. of Police

1994-07-07

P.A.MOHAMMAD

body1994
Judgment :- The petitioner in this case seeks a direction to respondents 1 and 2 to afford police protection to conduct his Foreign Liquor Wholesale Shop No. 51 of Ambalapuzha Taluk. He bid the shop for the year 1994-1995. There was change of circumstances during the year 1994-1995 with the introduction of new abkari policy. As per the amended rule, the privilege of selling foreign liquor does not include the right to consumption within the premises. Therefore the petitioner in the present set up needs only one cashier and one salesman to carry on the business. The case of the petitioner is mat fourteen employees employed by the previous contractor now demanded dial they should he provided in the shop run by the petitioner. That request was not acceded to by the petitioner on the ground that he has got his own workers to carry on the wholesale shop. In that situation, the workers represented by respondents 3 and 4 started an agitation in front of the petitioner's shop. It is. alleged that the workers, who are conducting the agitation, obstructed the petitioner and his customers for their free ingress and egress to and from the shop and thus normalcy could not be- prevailed in the area. In that background the petitioner filed a representation before the Superintendent of Police, Alappuzha, evidenced by Ext. P1. As there was no tangible action from respondents 1 and 2, the petitioner came before this court with the present writ petition. 2. Heard learned counsel for the petitioner and respondents 3 and 4. Government Pleader appearing for respondents 1 and 2 was also heard. 3. In view of the nature of the controversy involved 'in this case, this court directed respondents 1 and 2 to submit a report as to the exact distance between the places where the agitation is being conducted and the shop locates. According to the police, the agitation is being conducted at about five feet away, from the' northern boundary of the shop. The further aspect pointed out by the police is that there is no law and order problem at present in the area, and that proper safety measures have been taken. Mr. P.C. Chacko, Senior Advocate, appearing for the petitioner brought to my notice two decisions of this Court, namely Chacko v. State of Kerala (1992(2) KLT 333) and Balakrishna Transport v. Supdt. of Police (1990(1) KLT 435). Mr. P.C. Chacko, Senior Advocate, appearing for the petitioner brought to my notice two decisions of this Court, namely Chacko v. State of Kerala (1992(2) KLT 333) and Balakrishna Transport v. Supdt. of Police (1990(1) KLT 435). On the basis of these decisions it is urged that the agitation going on in a shed in front of the petitioner's shop should be totally removed in order to secure safety for the free egress and egress of the petitioner and his customers to and from the shop. The argument is that in order to have normalcy in the area and to carry on his business in a profitable manner the agitators should be removed totally otherwise every now and then disturbances will occur and the peaceful situation will not be available. The question whether the petitioner has right to get a direction from this court to remove the persons who are conducting the agitation is a matter to be gone into. Of course, the petitioner has got fundamental right to carry on his business and trade under Art.19(1)(g) of the Constitution, but it is not an absolute right. Reasonable restrictions can be imposed, if there is interference in the right of others while so enjoying his rights. No citizen has a right to claim that he alone is entitled to enjoy the fundamental rights and others, not. Therefore, this court will be justified in examining whether the restrictions on such rights in certain situations are reasonable or not. While considering this, the case of respondents 3 and 4, who are conducting the agitation is also to be taken note of. It is to be recalled, respondents 3 and 4 have also a fundamental right under Art.19(1)(b) and (c) to carry on the peaceful agitation in promotion of collective bargaining. When fundamental rights of two groups of people conflict with each other, it is the function of this court to reconcile them as far as possible. The functions of these two varying,; groups are to be gauged applying the test of reasonableness. This is what is required to be done in this case. 4. According to respondents 3 and 4, there is denial of employment to them. They are permanent employees under the previous contractor. It is urged that same position should be continued this year also even though there is change of ownership of the shop. This is what is required to be done in this case. 4. According to respondents 3 and 4, there is denial of employment to them. They are permanent employees under the previous contractor. It is urged that same position should be continued this year also even though there is change of ownership of the shop. This is a question which necessarily is to be examined by the Labour Court, and it is brought to my notice that a dispute has already been raised before the Labour Department. The forum for such a decision is the Labour Court and that question cannot be decided in this proceeding by this court. However, the question which can be gone into this case is whether respondents 3 and 4 can conduct an agitation just in front of the shop of the petitioner. Whether the conduct of agitation in such a manner would cause any disturbance to the petitioner or his customers is a question which comes within the premise of 'reasonableness'. The determination of this question is totally dependent on the facts of each case. According to the report of the police, the distance prevails between the shop of the petitioner and the shed where the agitation is going on is only five feet. This distance is not sufficient for free ingress and egress to and from the shop. Within this distance possibility for physical obstruction cannot be ruled out. Slogan-shouting is another feature of all agitations. All these factors have to be taken into account while examining the reasonable distance to be maintained between the fighting groups to acquire peace in the locality. The contention advanced by learned counsel for the petitioner that agitation should be totally removed from the place cannot be countenanced. The total removal of agitation cannot be said to be a reasonable act. It is the right of the Trade Unions and their members to carry on agitation by forming themselves into a peaceful assembly without arms and voice their grievances. This right to carry on peaceful agitation in a non-violent manner is well recognized. Considering the rights pleaded by both sides, I think it-is necessary for this court to decide the distance to be maintained between the shop of the petitioner and the place where the agitation to be conducted by respondents 3 and 4. This right to carry on peaceful agitation in a non-violent manner is well recognized. Considering the rights pleaded by both sides, I think it-is necessary for this court to decide the distance to be maintained between the shop of the petitioner and the place where the agitation to be conducted by respondents 3 and 4. According to me, respondents 3 and 4 can very well carry on their agitation in a peaceful and nonviolent manner at a distance of twenty feet away from the shop of the petitioner. This distance, I am fixing, in consonance with certain factors hereinbefore stated and also in view of the situation prevailing in the locality. I am also told that there are other shops functioning in the surrounding areas. Therefore, I permit respondents 3 and 4 to carry on their peaceful agitation at a place twenty feet away from the shop of the petitioner and that too, without causing any obstruction or violence in the locality. I direct the petitioner that he shall not prevent the members of the Unions represented by respondents 3 and 4 from carrying on their peaceful agitation. In order to settle the dispute the petitioner should co-operate in the proceedings before the Labour Department because right of employment has been denied to members of respondents 3 and 4, according to them. It is for the petitioner to see that the dispute between the petitioner and the employees represented by respondents 3 and 4 is amicably settled as far as possible. It is also for the petitioner to come forward with a solution feasible in this case. Considering all the facts and circumstances of the case, I direct respondents 1 and 2 to afford protection to the petitioner, if any disturbance or violence takes place in the locality for carrying on the business in the shop with his own workers provided he makes a demand in that behalf. If any such demand is made to respondents 1 and 2 by the petitioner, adequate protection shall be granted to him. Needless to point out, it is the duty of the police to see that peace and tranquility is maintained keeping a vigil over the area particularly in regard to the distance of twenty feet to be maintained between the shop of the petitioner and the place where the peaceful agitation to be carried on by respondents 3 and 4 as aforesaid. With the above direction, this original petition is disposed of. No order as to costs.