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2002 DIGILAW 638 (AP)

Commissioner, Municipal Corporation of Hyderabad, Hyd. v. Secunderabad Bunks (KIOSKS) Owners Association

2002-06-04

DALAVA SUBRAHMANYAM, S.R.NAYAK

body2002
S. R. NAYAK, J. ( 1 ) WA 1296 of 1993 filed by the Municipal Corporation of Hyderabad is directed against the order of the learned single Judge dated 10/10/1993 in WP No. 10213 of 1989. The respondent herein - Secunderabad Bunks (KIOSKS) Owners Association represented by its General Secretary filed the above writ petition praying for the following relief;"petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed herein, the High Court will be pleased to issue a writ order or directions more particularly in the nature of writ of mandamus or any other appropriate writ order or directions of like nature directing the respondents herein (a) not to interfere with the trade and business of the members of petitioner-Association, Secunderabad bunks (KIOSKS) Owners Association represented by its General Secretary N. R. Mouli son of Laxmaiah, aged 60 years resident of H. No. 7-2-156 Ashoknagar, Secunderabad - 500 003 consisting of 76 members; (b) and further direct the action of the respondents herein in taking steps for demolition of the KIOSKS of members of petitioners Association bearing Ref. No. 1853/ 83 situated at Sarojini Devi Road Opp: Swapnalok Complex Secunderabad - 500003 consisting of 76 members as illegal, without jurisdiction and arbitrary. " ( 2 ) IT is the case of the petitioner Association that in and around the years 1975 to 1980, the members of the petitioner Association were allotted places by the Municipal Corporation of City of Hyderabad on the basis of applications to the respondents and on condition of paying ground rent, Pursuant thereto, licences were granted by the Municipal Corporation and bunks and structures were erected by the members of the petitioner Association and on an average, the investment ranging from Rs. 8,000. 00 to Rs. 15,000. 00 for each bunk was made and since then, they have been doing their business in different trades such as motor-parts, carpentry, painting etc. While so, the petitioner Association complained that in order to widen the road, in the year 1989, the respondents tried to remove the bunks and other structures erected by its members. 8,000. 00 to Rs. 15,000. 00 for each bunk was made and since then, they have been doing their business in different trades such as motor-parts, carpentry, painting etc. While so, the petitioner Association complained that in order to widen the road, in the year 1989, the respondents tried to remove the bunks and other structures erected by its members. So complaining and contending that if the bunks and structures are removed, that would violate the right guaranteed to the members of the petitioner-Association under Article 19 (l) (g) of the Constitution of India, the petitioner filed the writ petition praying for the relief already noticed above. ( 3 ) THE writ petition was opposed by the Municipal Corporation of the City of Hyderabad by filing a detailed counter. In the counter-affidavit, the Corporation admitted that the members of the petitioner-Association were granted licences during the years 1975 to 1980 and the ground rent was collected upto 30-9-1983 and since that date, the members of the petitioner-Association had been asked to remove the bunks in order to enable the respondents to take up the work of widening of the road. It was also contended that widening of the road is absolute necessity in order to meet the traffic requirement and to reduce presently unmanageable traffic congestion, and that as per condition No. 2 of the allotment letter, the members of the petitioner-Association are required to remove the bunks and structures as and when required by the respondents within seven days from the date of issuance of notice in that regard. ( 4 ) THE learned single Judge having opined that the members of the petitioner-Association could not be treated as encroachers inasmuch as they erected bunks only after obtaining required licences from the Municipal Corporation and they paid ground rent upto 1983 and having regard to "the object of the Indian Constitution to do social justice to all its citizens. " thought it appropriate to dispose of the writ petition with the following directions:" (1) The respondents shall restrain themselves from interfering with the trade or business activity of the members of the petitioner-Association till a scheme or modalities for rehabilitating the members of the petitioner-Association is or are worked out. " thought it appropriate to dispose of the writ petition with the following directions:" (1) The respondents shall restrain themselves from interfering with the trade or business activity of the members of the petitioner-Association till a scheme or modalities for rehabilitating the members of the petitioner-Association is or are worked out. (2) The respondents are entitled to collect rents from the members of the petitioner-Association including arrears at the rates applicable, till they continue to operate business in the present premises. While giving the above directives, this Court is conscious of the fact of the urgent need for road widening and equally conscious of the fact that if the members of the petitioner-Association are not rehabilitated, we would be depriving them of their livelihood resulting in unseen miseries on their dependants. Therefore, keeping the entire issue in view and considering the humanitarian problems involved, the above directives are issued hoping that the respondents, including the Government of Andhra Pradesh, would realise the complexity of the problems and soon come forward with an appropriate scheme so that a workable solution could be found meeting the twin problems of unemployment and trafficular hazards. "hence, this writ appeal by the Municipal Corporation of City of Hyderabad. We have heard Smt. G. Jyothi Kiran, learned Standing Counsel for the appellant --Municipal Corporation of City of Hyderabad and learned Counsel for the respondents. Learned standing Counsel for the appellant contended that there was absolutely no justification for the Court to injunct the Municipal Corporation from taking appropriate steps to remove the bunks and effect the road widening. Learned Standing Counsel further contended that the petitioner-Association has not established any legal right to seek writ of mandamus in the above nature. On the other hand, learned Counsel for the respondent-Association supported the order of the learned single Judge. ( 5 ) AS could be seen from the pleadings and the argument advanced before the learned single Judge, the only contention on behalf of the petitioner was that if the members of the petitioner- Association are required to remove the bunks, that would violate the right guaranteed to them under Article 19 (1) (g) of the Constitution, Article 19 (1) (g) guarantees that all citizens shall have the right to practice any profession or to carry on any occupation, trade or business. Clause (6) of Article 19 provides that the right guaranteed under Clause (g) of Sub-clause (1) of Article 19 shall not affect the operation of the existing law insofar it imposes in the interest of general public the reasonable restrictions on the exercise of the right conferred by the said sub-clause. What Article 19 (1) (g) guarantees is they every citizen has right to choose his own employment or to take up any trade or calling, of course, subject to the limits as may be imposed by the State in the interest of public welfare and other grounds mentioned in Clause (6 ). The right guaranteed under Article 19 (1) (g) is the natural right to enter into or carry on any trade, profession or calling, which every person has, as the member of the civilized society anterior to or independent of any legislation or grant by the State. This position is well settled by the opinions of the Supreme Court in Saghir Ahmed v. State of UP. , AIR 1954 SC 728 , State of Rajasthan v. Vyas Mohan Lal, AIR 1971 SC 2068 , Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163 , Ganapati Singhji v. State of Ajmer, AIR 1955 SC 188 , Bangalore Water Supply and Sewerage Board v. A. Rajappa, AIR 1978 SC 548 , Unnikrishnan v. State of AP. , AIR 1993 SC 2178 , State of Bombay v. " Chambarbaughwala, AIR 1957 SC 699 , Pyare Lal v. New Delhi Municipal Committee, AIR 1968 SC 133 , and Ibrahim v. RTA, AIR 1953 SC 79 . Thus, it can be said that there is no fundamental right of a citizen to carry on business wherever he chooses, e. g. , on the street or at any time and his right must be subject to reasonable restriction imposed by the Executive in the interest of public convenience. While a citizen has a fundamental right to carry on trade or business of his choice, it is equally well settled by a catena of decisions of the Supreme Court that he has no fundamental right to insist upon the Government or any other individual for doing business with him or to command the State that the State should aid and assist him in establishing his business or profession in the absence of any binding contract between the two. In that view of the matter, the argument advanced on behalf of the petitioner-Association in the writ petition was totally misconceived and not tenable. ( 6 ) ALTHOUGH an attempt was made by the learned Counsel for the Association at the time of hearing before us that if the bunks erected by the members of the petitioner-Association are removed, the right to life guaranteed to the members of the petitioner Association under Article 21 of the Constitution would be put in jeopardy, we do not find any pleading in support of that plea nor any argument based on that plea before the learned single Judge. We have carefully perused the affidavit averments. Nowhere in the affidavit the petitioners have taken the above plea nor any ground based on violation of Article 21 rights. On the other hand, the pleadings of the petitioner clearly show that the members of the petitioner-Association constructed and erected bunks and other structures in pursuance of the licences granted to them by the Municipal Corporation of City of Hyderabad on their agreeing to pay ground rent. Admittedly, one of the conditions of the licence was that the licensee is required to remove the bunk if the space granted to him is required by the Municipal Corporation for any public purpose within a period of seven days from the date of receipt of notice in that regard from the prescribed authority of the Corporation. The members of the petitioner-Association should not be allowed to approbate or reprobate and they are bound by the terms of the licences granted to them. The above condition imposed by the Municipal Corporation while granting licences to the members of the petitioner-Association cannot be said to be irrational, arbitrary or violative of any of the postulates of Article 14 of the Constitution. Looking from any angle, we do not find any justification, legal or factual, for issuing the kind of direction issued in the impugned order and consequently it cannot be sustained. ( 7 ) IN the result, we allow the writ appeal and set aside the order of the learned single Judge and dismiss the writ petition. Looking from any angle, we do not find any justification, legal or factual, for issuing the kind of direction issued in the impugned order and consequently it cannot be sustained. ( 7 ) IN the result, we allow the writ appeal and set aside the order of the learned single Judge and dismiss the writ petition. The members of the petitioner-Association, however, are granted one month s time from today to remove the bunks and other structures erected by them and if they fail to do so within the stipulated time, the appellants will be at liberty to take appropriate legal steps to remove the bunks and other structures and effect road widening. No costs.