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Jharkhand High Court · body

2013 DIGILAW 288 (JHR)

Panchanand Choudhary v. State of Jharkhand

2013-02-27

APARESH KUMAR SINGH

body2013
Order Heard learned counsel for the parties. 2. The petitioner has been allotted Sand Ghat in the District of Godda on the basis of NIT dated 25.5.2011 where under an agreement was also entered on 1.9.2011. 3. It is submitted on behalf of the petitioner that on the date of bidding dated 14.6.2011 by a general notice, conditions were imposed by the order of Deputy Commissioner, Godda by an executive order which is not in accordance with law as framed by legislature, whereunder the present petitioner like other settlee have been prevented to transport the sand anywhere outside the district of Godda. The petitioner is being aggrieved by the said notice, which is under challenge in the present writ petition. 4. The petitioner is also aggrieved by the notice at Annexure-6 by which the settlee like the petitioner was directed not to resort to use of machine in lifting and loading of sand from the Sand Ghats for protecting the interest of the local labourers. Learned counsel for the petitioner submits that the stand taken by the respondent is illegal as they cannot change the terms and conditions of the NIT in which petitioner willingly and consciously participated having proper knowledge, which is not tenable in law. The terms and conditions which are subsequently introduced are itself violative of Article 14 of the Constitution of India as also constitutional right guaranteed under Article 301 read with 304B. It is submitted that such conditions cannot be imposed, which is discriminatory in nature and does not have mandate of any law either. It is submitted that Article 301 of the Constitution permits free flow of trade, commerce and intercourse throughout the territory of India and reasonable restriction can only be imposed by making law under Article 304B by the Legislature of a State and with the prior assent of the President of India. Learned counsel has relied upon the judgment in the case of Basheshar Nath vs. Commissioner of Income Tax, Delhi & Rajasthan & Anr. reported in AIR 1959 SC 149 , on the question of waiver of fundamental rights in which Hon'ble Supreme Court has held that fundamental rights guaranteed under Article 14 of the Constitution, of India cannot be waived. On the similar ground he also relied upon the judgment in the case of Olga Tellis & Ors. Vs. Bombay Municipal Corporation & Ors. On the similar ground he also relied upon the judgment in the case of Olga Tellis & Ors. Vs. Bombay Municipal Corporation & Ors. reported in (1985) 3 SCC 545 . Learned counsel for the petitioner has relied upon the judgments rendered in the case of State of Tamil Nadu & Ors. Vs. M/s Sanjeetha Trading Co. & Ors. reported in (1993) 1 SCC 236 , para-18 thereof to submits that such impugned action is in teeth of the constitutional provisions contained under Articles 301 and 304B of the Constitution of India. 5. The respondents, on the other hand contested the stand of the petitioner by making submission that he had willingly participated in the settlement of Ghats under the NIT with full knowledge of the terms and conditions. The impugned condition has been imposed in order to make availability of sand for the use of various Government projects and for general public within the district of Godda. Learned counsel for the respondents, however, submits that restriction imposed on loading and lifting of sand through machines at Sand Ghat are in the interest of local people to prevent the efflux of poor labourers from the local place in the vicinity of Sand Ghats in the district of Godda to elsewhere in the absence of proper source of work or livelihood. 6. Learned counsel for the respondents have also relied upon the judgment reported in AIR 1997 SC 152 and AIR 1997 SC 128 . Learned counsel for the respondents submits that the said condition of restriction used in machinery in the lifting of sand is intended to further the constitutional goals guaranteed under Directive Principles of State Policy under Article 41 to ensure the employment and livelihood of the local people. It is further submitted that such condition is also incorporated in the notice inviting tender as indicated in the amendment contained under Clause VII whereby the Deputy Commissioner was authorized to impose certain conditions as also clause 22 of the general condition of the NIT. 7. I have heard learned counsel for the parties at length and having gone through the relevant materials on records and judgments relied upon by the parties. 7. I have heard learned counsel for the parties at length and having gone through the relevant materials on records and judgments relied upon by the parties. On the face of it, the notice dated 14.6.2011 completely prohibiting transportation of sand beyond the District of Godda is arbitrary and also in violation of the Constitutional Provisions guaranteed under Part-III and under Article 301 of the Constitution of India as it prohibits free trade, commerce and intercourse within the territory of India. Petitioner is entitled to challenge if any of the provisions of the NIT which are in the teeth of the Constitutional Provision or fundamental rights under Part-III of the Constitution, as the fundamental rights are enshrined for the benefit of an individual and are enacted in public interest or on grounds of public policy. The aforesaid legal position has also been held by Hon'ble Supreme Court as reported in the case of Basheshar Nath vs. Commissioner of Income Tax Delhi & Rajasthan & Anr. (supra). In that view of the matter such prohibitory conditions imposed by the respondents are not acceptable and the conditions imposing totally prohibition on the lifting and loading of sand from Godda to another place is wholly unsustainable in law. However, so far as the restriction imposed on use of machinery are concerned, in view of the constitutional goals enshrined under the Directive Principles of State Policy for ensuring employment and livelihood of the local' people there has to be reasonable balance in the manner of use of machinery in lifting and excavation of sand so as to prevent the efflux of local people to other places. It is therefore the duty of the respondent authority to ensure that a reasonable balance is ensured so that use of machinery is neither prohibited totally nor use of machinery reaches to a stage when the requirement of manual labour is totally extinguished in the process. In that view of the matter, the part of the notice contained at Annexure-5 dated 14.6.2011 which prohibits restriction on the use of transportation of sand outside the district of Godda is quashed. However, in respect of the conditions imposed by Annexure-6 dated 16.12.2011, respondents authorities are required to take re-look into the same by ensuring reasonable balance in the use of machinery and that of manual labourer in excavation of sand so as to protect the interest of the local labourer. However, in respect of the conditions imposed by Annexure-6 dated 16.12.2011, respondents authorities are required to take re-look into the same by ensuring reasonable balance in the use of machinery and that of manual labourer in excavation of sand so as to protect the interest of the local labourer. This writ petition is disposed of in the aforesaid terms. 8. In that view of the matter, the respondents would reconsider their decision, which has been taken by way of Annexure-6 within a reasonable time preferably within a period six weeks from the date of receipt of this order. 9. This writ petition is disposed of.