Md.Murtaza & Ors vs State Of Assam & Ors

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.

2 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).

5 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