MD.MURTAZA Vs STATE OF ASSAM .
Bench: MARKANDEY KATJU,CHANDRAMAULI KR. PRASAD, , ,
Case number: C.A. No.-007517-007517 / 2011
Diary number: 13927 / 2009
Advocates: RAJIV MEHTA Vs
CORPORATE LAW GROUP
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLAE JURISDICTION
CIVIL APPEAL NO.7517__2011 [Arising out of SLP(Civil) Nos. 15141 of 2009]
Md. Murtaza and others .. Appellants
-vs-
State of Assam and others .. Respondents
WITH
CIVIL APPEAL NO. 7518_2011 [Arising out of SLP(Civil) Nos. 27497 of 2009]
Shaukat Ali and others .. Appellants
-vs-
State of Assam and others .. Respondents
O R D E R
1. Leave granted.
2. These appeals have been filed against the impugned judgment and
order dated 28.4.2008 passed by the Gauhati High Court in Writ Petition
(Civil) No. 8081 of 2005.
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3. The appellants are wholesale vegetable and fruit vendors and were
engaged in selling vegetables and fruits at Machkhowa market, Gauhati in
the State of Assam since 1995. However, they had to vacate their respective
possession of the premises in pursuance to the orders of the Gauhati High
Court. Machkhowa market is situated close to the railway station and is
inside the city and the land thereon has been allotted to the Department of
Handloom and Textiles, Government of Assam for the purpose of
construction of an administrative building. For this purpose it was proposed
to remove the appellants and other wholesale vendors from the Machkhowa
market, and instead a new market has been constructed at Ganeshguri. It
was submitted by the appellants and others that there is not enough space in
the Ganeshguri municipal market for the appellants and others. We are not
referring to the various orders issued by the Gauhati High Court from time to
time.
4. In one of the counter affidavits filed before us it has been stated that
all parts of the city of Gauhati, including Machkhowa is very congested and
hence the appellants and other wholesellers should not be allowed to do
business of wholesale fruits and vegetables inside the city limits as a large
number of heavy and medium goods vehicles have to enter the city to go to
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that wholesale market and consequently the area becomes very congested
causing serious traffic problems and also hazard of health and hygiene and
pollution. It is stated that the government of Assam has initiated steps to
develop the fruits and vegetables wholesale market at the outskirts of
Gauhati at Garchuk near the bypass on an area of 8 bighas of land and the
foundation stone of the project market was laid by the Chief Minister on
25.2.2011. It has been further submitted that development work is taking
place at a high speed at Garchuk.
5. We are of the opinion that the wholesale market of fruits and
vegetables for supplying of these goods to Gauhati and elsewhere should be
at the outskirts or outside the city limits of Gauhati to avoid problems of
traffic congestion, health and hygiene, pollution etc.
6. Citizens ordinarily do not go to wholesale markets, but they go to
retail markets. Hence if the wholesale market is not situated within the city
limits it will not cause any inconvenience to the public in general. On the
other hand, if such wholesale market is situated within the city limits, there
will be everyday hazards of traffic congestion because of hundreds of
vehicles entering the city carrying goods for the wholesale markets resulting
in traffic congestion, air and noise pollution etc., apart from posing health
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and hygiene problems. A large number of these goods will be dumped on
the roads causing huge collection of waste and garbage. The rotting goods
may spread diseases. They may also attract stray animals.
7. Ordinarily everywhere in the world wholesale markets are situated at
the outskirts or outside the city limits. No doubt, the shifting of the shops of
the wholesellers will cause some hardships to some individuals, but it is well
settled that public interest prevails over the private interests. Thus, in
Friends Colony Development Committee vs. State of Orissa AIR 2005 SC 1
(vide para 22) this Court observed :
“The private interest stands subordinated to the public good”.
8. Similarly, in Sales Tax Officer vs. Shree Durga Oil Mills, (1998) 1
SCC 572 (vide para 21) this Court observed:
“Public interest must override any consideration of private loss or gain”.
9. It is true that right to do business is a fundamental right guaranteed
under Article 19(1)(g) of the Constitution, but this right is subject to
reasonable restrictions under Article 19(6).
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10. It may be mentioned that to test the reasonability of a restriction we
have to see the subject matter, extent of restriction, the mischief which it
seeks to check, etc. The reasonableness of the restriction has to be
determined in an objective manner and has to be seen from the point of view
of the interest of the general public and not merely from the point of view of
the persons upon whom the restrictions are imposed vide Hanif Quareshi v.
State of Bihar, AIR 1958 SC 731. Moreover, the impugned action of the
authorities cannot be said to be unreasonable merely because in a given case,
they may operate harshly, vide State of Gujarat v. Shantilal, AIR 1969 SC 634
(vide Para 52). As observed by the Supreme Court in Laxmi Khandsari v.
State of UP., AIR 1981 SC 873; Divert v. State of Gujarat, AIR 1986 SC
1323; State of Madras v. Row, 1952 SCR 597; Peerless v. Reserve Bank, AIR
1992 SC 1033; and Harakchand v. Union of India, AIR 1970 SC 1453 etc.,
the nature of the right alleged to have been infringed, the underlying purpose
of the restriction imposed and the extent and urgency of the evil sought to be
remedied thereby, disproportion of the imposition, prevailing conditions at
the time etc., are the relevant considerations for determining whether the
restriction is reasonable.
11. Further, as held in Jyoti Pershad v. Union Territory of Delhi, AIR 1961 SC
1602, the standard of reasonableness must also vary from age to age and be
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related to the adjustments necessary to solve the problems which
communities face from time to time. In adjudging the validity of the
restriction the Court has necessarily to approach the question from the point
of view of the social interest which the State action intends to promote, vide
Puthumma v. State of Kerala, AIR 1978 SC 771; P.P. Enterprises v. Union of
India, AIR 1982 SC 1016 and Jyoti Pershad v. Union Territory of Delhi
(supra), etc.
12. Judged by these standards the impugned action of the authorities
cannot be faulted on the ground of lack of reasonableness. As stated in the
counter-affidavits filed in these cases, the existing wholesale markets have
become the cause of immense traffic congestion in the city, apart from
causing diseases, pollution etc. Hence, shifting the wholesale markets to the
outskirts of the City or beyond is clearly reasonable.
13. It must be remembered that certain matters are by their very nature
such as had better be left to the administrative authorities instead of Courts
themselves seeking to substitute their own views and perceptions as to what
is the best solution to the problem. The present is clearly an instance where
this Court should not interfere with the steps taken by the respondents to
resolve a pressing problem. In matters of policy the Courts have a limited
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role and it should only interfere with the same when it is clearly illegal. That
clearly is not the case here. The impugned action is a salutary step for
undoing a mischief, which was crying out for redress for a long time, and it
is not illegal.
14. As observed by the Supreme Court in Mohd. Hanif Qureshi v. State of
Bihar, AIR 1958 SC 731, the Court must presume, that the legislature
understands and correctly appreciates the need of its own people. The
legislature is free to recognize degrees of harm, and may confine its
restrictions to those where the need is deemed to be the clearest. In our
opinion, the same principle would apply to executive action also, unless
there is clear violation of a statute or a constitutional provision.
15. In our opinion, the State should not be hampered by the Court in
dealing with evils at their point of pressure. All legislation, including
delegated legislation (such as the kind we are examining) and executive
action is essentially ad hoc. Since, social problems nowadays are extremely
complicated, this inevitably entails special treatment for distinct social
phenomena. If legislation or executive action is to deal with realities it must
address itself to variations in society. The State must, therefore, be left with
wide latitude in devising ways and means of social control and Regulation,
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and the Court should not, unless compelled by the law, encroach into this
field.
16. As Justice Frankfurter of the U.S. Supreme Court observed in
American Federation of Labour v. American Sash and Door Co., 335 US
538 (1949) :-
"Even where the social undesirability of a law may be convincingly urged, invalidation of the law by a Court debilitates popular Democratic Government. Most laws dealing with social and economic problems are matters of trial and error. That which before trial appears to be demonstrably bad may belie prophecy in actual operation. But, even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed by the legislature than that the law should be aborted by judicial fiat. Such, an assertion of judicial power defeats responsibility from those on whom in a democratic society it ultimately rests. Hence, rather than exercise judicial review Courts should ordinarily allow legislatures to correct their own mistakes wherever possible."
In our opinion the same principle would apply to executive action too.
17. Similarly, in his dissenting judgment in New State Ice Co. v.
Liebemann, 285 U.S. 262 (1932), Mr. Justice Brandeis, the celebrated Judge
of the U.S. Supreme Court observed that the government must be left free to
engage in social experiments. Progress in the Social Sciences, as in the
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Physical Sciences, depends on "a process of trial and error" and Courts must
not interfere with necessary experiments.
18. Justice Brandeis also observed :-
"To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation."
19. On the facts of the case, we are of the opinion that the appellants and
other wholesale traders should shift to the wholesale markets at the outskirts
or outside the city limits of Gauhati.
20. If the markets are not constructed yet, they will be constructed by the
government, the municipalities and other authorities in consultation with the
representatives of the wholesale traders of Gauhati and allotments made
within a period of one year from today. For this purpose a Committee shall
be set up under the Chairmanship of the concerned Secretary of Government
of Assam and having members from the representatives of the Gauhati
municipality and other authorities, and also representatives of the
associations of wholesellers of fruits and vegetables and grains etc., as well
as representatives from the electricity department, water department,
telephone department, police etc. This Committee shall form a rational plan
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for allotment of the existing wholesale markets inside the Gauhati city to the
new wholesale market (which will be constructed, if has not already been
constructed).
21. All wholesellers inside Gauhati city shall be allowed to apply for
allotment for adequate land for the wholesale market at the outskirts of or
beyond Gauhati city. If such applications are made the same will be decided
in a fair and non-arbitrary manner without any pick and choose. The entire
exercise including allotments must be completed within one year from
today.
22. With the observations made above, the appeals stand disposed of. No
costs.
………………………………J. (Markandey Katju)
………………………………J. (Chandramauli Kr. Prasad)
New Delhi; August, 29, 2011
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