SGARH: BILASPUR v. Stete of Chhattisgarh & Ors.

HIGH COURT OF JUDICATURE CHHATT1SGARH: BILASPUR (Djvision Bench) CORAiVI: Hon'ble Shri A.K. Patnaik. CJ & Hon'ble Shri D.R. Deshmukh, J. WRIT PETITION N0.4391 OF 2004 Ku. A. Indra and two others Versus Stete of Chhattisgarh & others WRIT PETITION N0.4251 OF 2005 C.G. Poultry Dealer Association Society Versus Municipal Corporation, Raipur and another ^^ Present: Forthepetitioners Mr. Virendra Sharma and Dr. N.K. Shukla, Sr. Adv., with Mr. Goutam Bhaduri, Advocates. Fcr respondent No.1 Mr. Sumesh Bajaj, Govt. Advocate. For the Municipal Corporation, Raipur SVlr. H.B. Agrawal, Sr. Adv., with Miss Shipra Biswas, Advocate. ORDER (Passed on 19'" September 2005) A.K. Patnaik. CJ: The following Order ofthe Courtwas pa^ed by Wrlt Petition No.4391 of 2004 is a Public Interest Litigation filed by three residents of Raipur city. The petitioners have stated in the said writ petition that Jawahar Markot in the Raipur City is in the very heart of the city and thousands of the peopie of the State passed through the said market but in the said market animais are slaughtered and thrown here and there jn open space and the market stinks of a foul smelt and stray dogs fight botwoen thomsolvos to got a pioco of flesh of an Jmal and endanger the life of the people visiting the market.

The petitioner has further stated that the Commissioner of the Raipur Munidpal Corporation has been requested time and again to implement the provisions of Sections 255 and 257 of the Chhattlsgarh Municipa! Corporation Act, 1956 (for short the "Act") and to ensurs that the business of slaughtering animals snd sdling meet, chicken, fssh and eggs ete. is regulated in through licences and is carried on only in specified piaces in aocordance wsth the ^aid provisions of Soctions 255 and 257 of the Act, but despite the said requeste, no steps have been taken by the Raipur Municlpai Corporation to regulate the said business. ^^ (3) Writ Petition No.4251 of 2005 has been fded by the C.G. Poultry Deater Association Society. The case of the petitioner jn the said writ petition is that th@ Municipal Corporation, Raipur is taking coercive steps to ciose down the business of selling chicken and eggs carried on by the members of the petitioner-association in different areas in Raipur clty.

They have stated in the petltion that for 30 to 40 years, the business of selljng meet and chicken was confined to Jawahar Nagar, Raipur, but by growth of population in the Raipur City the demand for chicken and eggs has increased manifold and for the last 20 years Teljbandha in Raipur has atso devQlopod into a martet for chioten. The petitioner has further stated in the writ petition that the members of the petitioner- association carry on the business of ehicken and eggs to earn their jjvelihood and if their aforesaid business are closed down by the authorities of the Ratpur Municlpal Corporation their right under Articles 21, 39(a), 19(1)(g) and 41,ofthe Constitution would be adversely affected. (4) Article 21 of the Constitution provides that no person shaIS be deprived of his life or personal liberty except according to procedure established by iaw. If the Municipal Corporation, Raipur is closing down the bu^Sne33 of selling chicken and eggs in the Raipur Municipal area, we fail to 900 as to how tho right to lifo and personal liberty of the members of the petitionQr-association in any way affeeted.

Article 39<a) of Constitution states tfiat the State shall, in particular, direct its policy towards securing that the cjtizens, men and women equaily, have the right to an actsquate means of livelihood. This is a provision in Part-IV of the Constitutjon and !s a dlrective principle of State policy and is not enforceable inthe Court of law as stated in Articte 37 of the Constitution. Article 41 states that the State shall, withjn the limJts of its economic capacity and dovolopment, mako offoctive provision for securing tho n'ght to work, to education and to public assistence in cases of unempioyment, o!d age. sickness and disabiement. and in other cases of undeserved want. This is a provision in Part-lV of the Constitutjon and is not enforceable in the Court of law. In any case, the said provisions in Articies 39(a) and 41 of the Constltution have no application to She present case in which the petitioner-association is making a grievance that ite members aro not being allowed to carry on their buainess of seJIing chioken and eggs in the Raipur MunicipaJ area.

(5) The provision of the Constitution which is really applicable to the present case is Article 19 (1)(g) which provides th^t all c'rtizens shall have the right to practise any profession, or to carry on any occupation^ trade or business. Articlo 19(6) of tho Constitution, howevor, provides that nothing in articte 19(1)(g) shaSI affect the operation of any existing law in so far as it imposes, or prevent the State from makjng any law imposing, L / in the interests of the general public, reasonable restrictions on the exorcise of the right conferred by Article 19(1)(g). HencQ, ©venjf the members of the petitioner-association have a right to carry on the retait buslness of seJiing chicken and eggs in the Raipur Municipal area, the State can make a law Imposing in the interests of general public reasonable restrictions on the exercise of such right under Article 19(1)(6) of the Constitution. (6) In Bombay Hawkers' Union Vs.

Bombay Munidpal Corporation, AIR 1985 SC 1206, a question arose as to whether a hawker has a right to squat on the roadside for engaglng In trading and business and the Supreme Court held that the public streete by their nomenclature and definition are meant for the use of the general public and th©yare not laid to facilitate the carrying on their private business and if hawkers w©reto be conceded th©right claimed by them, they could hold the society to ransom by squatting on the busy thoroughfares, thereby paralyzing alt clvic ilfe. After considering the aforesaid law iaid down in Bombay Hawkers' Union Vs. Bombay IVIunicipal Corporation (supra) the Supreme Court has held In Maharashtra Ekta Hawkers Union anci another Vs. Mynicipal Corporation, Qreater Mumbai and another, 2003 AIR SCW, that the hawkers have a right under Artiele 19(1)(g) ofthe Constitution but thi8 right of the hawkers is subject to reasonable rQstrictions under Article 19(6).

(n th©said decision, the Supreme Court observed that hawking may not be permitted in a narrow road where free flow of traffjc or movement of pedestrians js hindered by the hawkers and the buying public or such hawking may not be permitted in areas for security reasons or in the area near hospitals, places or worship eto. and there is no fundamental righf under Article 19(1)(g) of the Constitution to do hawking at any particular plaoo. (7) But in both, Bombay Hawkers' Union Vs« Bombay JVIunicspal Corporation (supra) and Maharashtra Ekta Hawkers Union and another V©.Municipal Corporation^ Greater Mumbai and another (supra), the Supreme Court observed that if the hawking business is regulated according to the exigency of circumstances, it may add to the convenience and comfort of the general public by making available ordinary artictes of everyday use for a comparatively lesser price. We may add here that the articles of ordlnary use can be obtained by the general public from the hawkers at much lesser price than at which such artjcle§ shoufd be available in the market place.

This te becauoe there te less cost jnvolved Jn solling articles along with roadside for hawkers whQroa^ heavy cost is involved in teking a shop or premises on rent jn a market place or in shopping compiex. Not everyone can afford to take on rent a premise in the market place or in the shopping hall and persons who cannot afford such costs in market place or a shop in shopping complex have to also llve by carrylng on thelr business. The Municjpal Corporations should make provisions for such hawkers to carry on their retaJI bu3Jne©3In ©reguleted manner Jn the area3 where CQrrying on such business does not affect the interest of general pubtic. (8) As a matter of fact, we find that Section 255 of the Act provides that no person shall sell or expose for sale any anjmal or any meat or fish intended for human food in any place other than a Corporatjon or Jiconsod markod. SoKing of animals or any moat or fish is not totaily prohibited under the Act., but is permitted in specific places and in terms of the licence issued by the Municipal Corporation.

Section 257 j(B«£36~AS&2SB^l ^ 6 of the Aot makes a provision regarding the places where slaughter of animals or salo can bo camod out and also makos provisions for grant of iicences for the use of such specific premises for staughter of animais and for charg'mg of rent or fees by the Corporation if such premises belong to the Corporation. This provision afso jndicates that the slaughter of animals for sale is not totally prohlblted under the Chhattisgarh Municipai Corporation Act, 195Q but is permitted only in some specified areas in terms of the licences. (9) The Raipur city is growing very fast. Its population is expending and with the expansion of population, the demand for different artjdes by the residente of the Raipur city including the demand for chieken and eggs is likely to grow. Obviously, the residents of Rajpur city cannot be asked to go to areas outside the MunicipaJ area to purchaso their r©quir©m©ntsof chicken and eggs unless there is som©law which prohibits altogether the sale of chicken and eggs in the Raipur Municipal area.

For the convenience of the general pubiic of Raipur cify, therefore, the Rajpur Municipal Corporatlon has to earmark areas in which chicken and eggs can be sold in terms of a licence granted to those who Intend to sell chicken and eggs. This will ensure that the righte of the citizens such a3 the members of the petltioner-a^sociation to carry on business of ©ellingchicken and eggs undor Artiolo 19(1)(g) of the Constitution is not affected and at the same time is regutated in the interest of generat pubdc in accordance with Article 19(6) ofthe Constitution. (10) We acoordingly direct that the members of the petitioner- association may filo thoir applications beforo tho Commissioner, Municipal Corporation, Raipur for licences to carry on business of selling of chicken and eggs and on such applications being filed, the Commissioner, Municipat Corporation, Raipur will oonsider the same in accordance with the provisions of the Chhattisgarh Municipal Corporation Act, 1 ©56and any rules or bye-laws made with regard to the terms of the licences under Section 366 of the said Act and pass orders on such applicatjons withjn a period of two months from the date of receipt of the said applications.

We also dtrect the Municipal Corporation Raipur as welj as the Commissioner to ensure that ie provlsions of Sections 255 and 257 of the said Act are followed and implemented in all respects. if anybody b found violating the said provisions of Seotions 255 and 257 of the said Act, steps will be taken by the appropriate authorities for prosecuting such persons in accordance with iaw. (11) With the Qforesaid directions, the writ petitions stand disposed of. Sd/- Chief Justice Sd/- Dilip Raosaheb Deshmukh Judge