ORDER
A.V. Savant, J.
1. Heard all the learned Counsel; Dr. Chandrachud for petitioners; Mr. C.J. Sawant, Advocate General for respondent Nos. 1 and 5; Mr. B.R Apte, Advocate General for respondent Nos. 2 and 3 and Mr. R.M. Sawant for respondent No. 4.
2. The first three petitioners are Trade Unions duly registered under the Trade Unions Act, 1926 representing a large number of hawkers in Navi Mumbai, (New Bombay), the twin city. Petitioner Nos. 4 to 17 are hawkers, who claim to have been carrying their hawking activities in Navi Mumbai and had submitted their applications to the second respondent Commissioner, Navi Mumbai Municipal Corporation for grant of licence to hawk in the hawking zones. The fourth respondent City and Industrial Development Corporation (for short 'CIDCO') is the New Town Development Authority (N.T.D.A.) constituted under section 113 of the Maharashtra Regional and Town Planning Act, 1966. The third respondent Navi Mumbai Municipal Corporation is a Corporation duly constituted under section 3 of the Bombay Provincial Municipal Corporations Act, 1949 (for short B.P.M.C. Act). The fourth respondent CIDCO has notified certain areas within the new town of Navi Mumbai as 'hawking zones' and the same have been placed at the disposal of the third respondent Municipal Corporation.The Municipal Corporation, in its turn, is entitled, in accordance with the provisions of sections 384 and 385 of the B.P.M.C. Act, to grant Licenses for sale of Articles in public place or licence for use of skill in handicraft or rendering services for the purposes of gain in public place or street. Chapter XXII of the B.P.M.C. Act deals with 'Licenses and Permits.' Sub-chapter VIII deals with 'Licenses for Hawking etc.' Under section 384 of the said Act, it is provided that no person shall use any public place or any public street for the purpose of hawking or exposing for sale, any article whatsoever, whether it be for human consumption or not except under and in conformity with the terms and provisions of a licence granted by the Commissioner in that behalf. Section 385 provides that no person shall, for the purpose of gain, use any public place or public street for the purpose of using his skill in any handicraft or in rendering services to and for the convenience of the public, except under and in conformity with the terms and provisions of a licence granted by the Commissioner in that behalf. Section 386 in Sub-chapter IX deals with the 'general provisions regarding Licenses and permits'.
4. The controversy raised before us is in respect of the constitutional validity of the impugned letter dated 21st August, 1997 (Exh. S. page 115) issued by the Asstt. Commissioner of the third respondent Municipal Corporation. Under the said letter, the applicants like petitioner Nos. 4 to 17 and other members of petitioner Nos. 1 to 3, who have submitted their applications for grant of licence to hawk in the hawking zone within the limits of Navi Mumbai Municipal Corporation, had been called upon to remain present in the office of the Asstt. Commissioner and produce the following five documents.
i) Ration card;
ii) Voter's identity card;
iii) Proof in support of the applicant carrying on business;
iv) 2 passport size photographs; and
v) Certificate from the Competent Officer that the applicant is resident ofMaharashtra for 15 years.
It is that last item, namely, a certificate from the Competent Officer to the effect that the applicant is a resident of Maharashtra for 15 years, which is objected to before us by Dr. Chandrachud on behalf of the petitioners. The impugned letter dated 21st August, 1997 read with the affidavit of Asstt. Commissioner Mr. N.N. Alhat makes it clear that only a person producing the said documents would be eligible to be considered for allotment of a slot in the hawking zone. It is thus one of the conditions of eligibility for being considered for grant of a licence to hawk in the hawking zone in Navi Mumbai Municipal Corporation that, the person applying must produce the above mentioned five documents. We are not concerned with the first four items in respect of which there is no controversy before us. The objection of the petitioners is to the insistence on item No. (v). It is obvious that, if an applicant does not produce the said certificate of residence for 15 years in the State, his application is liable to be rejected on the ground that he is not even eligible for being considered for grant of licence to hawk in the hawking zone. The applications of some of the petitioners have been rejected solely on the ground that they did not produce the said certificate of residence. Some applications are pending consideration. Some have been rejected on the ground that the applicants did not remain present for the interview. In this category there are cases where the applicants have produced all the five documents whereas there are some who may have produced the first four documents but were unable to produce the certificate of residence for 15 years in the State. It is in these circumstances that the petitioners have prayed for issuance of a writ of certiorariquashing the rejection of petitioners' applications. There is also a prayer for issuance of a writ of mandamus directing respondent Nos. 2 and 3 to issue Licenses to the petitioners under sections 384 and 385 of the B.P.M.C. Act and to allot them a place in the hawking zone.
5. Dr. Chandrachud, the learned Counsel for the petitioners has contended that the right to hawk is a fundamental right protected by Article 19(1)(g) of the Constitution which guarantees to every citizen a right to practice any profession or to carry on any occupation, trade or business. It is undoubtedly true, as provided in Clause (6) of Article 19, that, nothing in sub-Clause (g) of Clause (1) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by Clause (1)(g). It is then contended that the licensing power vested in the State under the Municipal Law is a regulatory power which must be exercised so as to ensure due and proper conduct of the business which is being licenced. No person can carry on hawking activity except in accordance with the licence granted under section 384 or 385 of the B.P.M.C. Act. Since the right to hawk is a fundamental right guaranteed under Article 19(1)(g) of the Constitution, insistence on the production of a certificate of residence for 15 years in the State does not meet the sanction of any existing law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by Article 19(1)(g). Since there is no legal sanction for the insistence on production of the certificate of residence, the respondents cannot invoke the aid of Clause (6) of Article 19 to contend that there is an existing law imposing, in the interests of general public, a reasonable restriction on the exercise of right conferred by Article 19(1)(g).
6. Apart from the fact that there is no legal sanction for insistence on production of a certificate of 15 years residence in the State, nothing has been indicated to us as to what is the authority of the Asstt. Commissioner to insist on production of such a certificate. It is of some significance in this behalf to note that in similar letters issued in the past only 4 documents were required to be produced which are, more or less, similar in nature to the first four items mentioned in the impugned letter. Our attention has been invited to the letters dated 5th June, 1997 (Exh. N pages 103 to 105) where, while considering the question of grant of licence for hawking, the applicants were required to produce only 4 documents similar to the first four documents mentioned in the impugned letter. A perusal of the impugned letter dated 21st August, 1997 shows that by way of a rubber stamp item No. (v) has been added in a very unsatisfactory manner. What is now further demanded is a certificate from the Competent Officer that the applicant is a resident of Maharashtra for 15 years. Instead of mentioning the words 'Competent Officer', in Marathi 'Saksham Adhikari', what has been mentioned in the rubber stamp is 'Samaksha Adhikari'. In a similar letter at page 116, the said rubber stamp is wholly illegible. That apart, no provision of any law, rule or even a resolution of the Corporation has been pointed out to us to show the authority of the Asstt. Commissioner to insist on the production of a certificate of residence for 15 years. It is, therefore, contended that the Corporation and its officers are acting arbitrarily in insisting upon the production of the certificate of residence of 15 years as a condition of eligibility for grant of licence for hawking and hence the action of respondent Nos. 2 and 3 is clearly hit by provisions of Article 14 of the Constitution which guarantees the equality before law to every person within the territory of India.
7. In reply to the petition, the only affidavit that has been filed is of Asstt. Commission of Navi Mumbai Municipal Corporation Mr. N.N. Alhat. It is stated in thesaid affidavit that no restriction has been imposed on the trading activity of the petitioners within the area of Navi Mumbai Municipal Corporation. The infringement of a fundamental right guaranteed by Article 19(1)(g) must be as a result of the direct impact of the restriction on the freedom to carry on trade and should not be a mere incidental effect of such a restriction. It is contended that trading activity in general has not been stopped. While, it is not denied that the petitioners have a right under Article 19(1)(g) to hawk in the hawking zone, what is contended is that insistence on a certificate of residence for 15 years does not amount to imposing any restriction on the petitioners' right under Article 19(1)(g) of the Constitution. Para 5 of the affidavit makes a very strange reading. We would prefer to reproduce the same.
'5. I say that the condition imposed is not 15 years domicile but 15 years residence and any citizen from anywhere in India who has a 15 years residence in this State, is eligible for applying for a slot in the hawking zone. I say that those who are residing in the State for about 15 years and more are preferred in as much as they are having some roots in the State and 'unknown outside criminal elements' without any base in the State should not take advantage of the allotment. I say that the said condition is put to provide opportunities to those who are staying in this State for about 15 years.'
It will be clear from the above that in the first part of para 5 it is clearly stated that a citizen who has 15 years' residence in the State is eligible to apply for a slot in the hawking zone. What has been stated subsequently is, in our view, wholly improper and pains us. While saying that those who were residing in the State for about 15 years and more are preferred in as much as they are having some roots in the State it is said that 'unknown outside criminal elements without any base' in the State should not take advantage of the allotment. It is difficult to appreciate how the Asstt. Commissioner of the third respondent Municipal Corporation could have made such an irresponsible statement. The averments in para 7 of the affidavit show further non application of mind on the part of Mr. Alhat, Apart from several mistakes in the said para, it shows a very casual manner in which the affidavit has been sworn by Mr. Alhat in a matter of some importance.
8. Relying upon the affidavit of Mr. Alhat, it was urged by Mr. Apte, the learned Addl. Advocate General that even assuming that the petitioners have a right under Article 19(1)(g) to hawk in the hawking zone, such a right has not been infringed by requiring the petitioners to produce the certificate of residence for 15 years in the State. It is contended that such a requirement does not have any direct impact on the petitioners' right under Article 19(1)(g). The impact, if any, is indirect and is of a very limited nature and is not violative of the right which the petitioners claim under Article 19(1)(g). We will consider the rival contentions in the light of the legal position.
9. Two principal questions which arise in the light of the pleadings and the arguments advanced are as under :
i) Can the petitioners claim their right to hawk as a fundamental right protectedby Article 19(1)(g) of the Constitution.
ii) If the answer to the first question is in the affirmative, the second question which arises is does the insistence on production of certificate of residence for 15 years in the State has the sanction of any existing law in so far as it imposes, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by Article 19(1)(g).
10. Article 19(1)(g) and Article 19(6) of the Constitution read as under :
'19. Protection of certain rights regarding freedom of speech, etc.
(1) All citizens shall have the right -
(a) .....
(b) .....
(c)....
(d) .....
(e) .....
(f) .....
(g) ..... to practice any profession, or to carry on any occupation, trade orbusiness.
(2) .....
(3) .....
(4) .....
(5) .....
(6) ..... Nothing in sub-Clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, (nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, (i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a Corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial of citizens or otherwise.'
11. Article 19(1)(g) of the Constitution protects the right of a citizen to practice any profession or to carry on any occupation, trade or business. It is well settled that this right extends the protection to all lawful trade or business. The ambit of constitutional protection does not extend to businesses which are regarded as unlawful or inherently pernicious such as trade in liquor. See Har Shankar and others etc. etc. v. The Deputy Excise and Taxation Commissioner and others, : [1975]3SCR254 . Street trading and hawking is an age-old vocation adopted by human beings to earn their living. It is recognised by common law and after advent of the Constitution, the protection of fundamental rights has been extended to such a trade. The hawker who hawks his wares subserves, in the process of carrying on his own business, the needs of common man for ordinary goods and services at affordable prices. The hawker has, therefore, been recognised by law to subserve the felt needs of the society and of the common man who is the vital constituent of the society. In Bombay Hawkers Union and others v. Bombay Municipal Corporation and others, : AIR1985SC1206 , the Supreme Court considered the validity of various conditions imposed by Bombay Municipal Corporation for regulating the activities of the hawkers. The Court upheld the validity of those conditions which were necessary to ensure that the carrying of trade and business of hawkers did not result in nuisance or annoyance or inconvenience to other members of the public. In other words, the Court held that the conditions which constitute unreasonable restrictions on the hawkers' right to carry on their trade or business must be dropped. The Apex Court held that the power conferred upon the Commissioner by section 313-A of the BombayMunicipal Corporation Act to grant licence to hawk was in the nature of a discretion coupled with a duty and it was, therefore, essential that such a power should be exercised by consulting all concerned interests and guided by consideration of what is in the interests of general public. The Court, therefore, held that hawking licence should not be refused in the hawking zone except for good reasons and discretion not to grant a hawking licence in a hawking zone should be exercised by the Commissioner reasonably and in public interest. These observations are to be found in paras 10 and 11 at pages 1210 and 1211 of the report.
12. The view expressed by a Bench of 3 learned Judges presided over by Y.V. Chandrachud, C.J., in Bombay Hawkers Union's case was reaffirmed by a Constitution Bench of the Apex Court presided over by E.S. Venkataramiah, C.J., in Sodan Singh and etc.etc. v. New Delhi Municipal Committee and another A.I.R. 1989 SCt 1988. The petitioners in Sot/an Singh's case claimed a right to engage in trading business on the pavements and roads of the city of Delhi. They asserted that they had been operating their trade with the permission of the Municipal authorities for some time but recently there had been illegal interference in their right to carry on their trade. Delhi High Court had dismissed their petition and they approached the Apex Court. In para 16 of the judgment, Apex Court affirmed the ratio of its earlier judgment in Bombay Hawkers' Union case (supra) and said that the right to carry on the trade or business mentioned in Article 19(1)(g) of the Constitution on street and pavement, if properly regulated, cannot be denied on the ground that the streets are meant exclusively for passing and repassing and for no other use. A reference was also made to the principle enunciated in Saghir Ahmed v. The State of U.P. : [1955]1SCR707 to which we will make a brief reference in the later part of this judgment. In para 17 of the judgment in Sodan Singh's case, the Constitution Bench did not approve of the observations of the 3 learned Judges' Bench in Pyare Lal v. New Delhi Municipal Committee : [1967]3SCR747 . While upholding that the petitioners had a right under Article 19 of the Constitution, the Apex Court rejected the argument that the right extended to carry on the trade by occupying a specific place on the street or pavement. The argument that such a right fell under Article 21 was, in terms, negatived and the right under Article 19(1)(g) in this behalf was held not to extend to occupying any particular place on the pavement where he can squat and engage in trading business. In para 28 of the judgment, the Apex Court made a reference to street trading being recognised by various Acts of Parliament in England. Reference was made to Halsbury's Law of England, 4th addition, Volume 40 paras 427 and 428 dealing with the regulations in that behalf. In the result, the Court concluded that street trade being a fundamental right, has to be made available to the citizen subject to Article 19(6) of the Constitution. It is within the domain of the State to make any law imposing reasonable restrictions in the interests of the general public. It was, however, observed that this can be done by an enactment on the same lines as in England or by any other law permissible under Article 19(6) of the Constitution.
13. We may, at this stage, make a brief reference to some of the earlier decisions which have a bearing on the issue raised before us. In Mohd. Yasin v. Town Area Committee, Jalalabad : [1952]1SCR572 , the petitioner was a wholesale dealer in fresh vegetables and fruits in Jalalabad in U.R The respondent-Committee had framed certain bye-laws under which all rights and powers to levy or collect commission on sale or purchase of vegetables and fruits within the limits of the town vested in the Committee or any other agency appointed by the Committee. TheCommittee, by auction, had given a contract for sale of vegetables and fruits as also for collecting commission for the relevant year to respondent Bhishamber who, it was alleged, had never dealt with in vegetables and fruits. Although, in terms, there was no absolute prohibition against carrying on business as wholesale dealer in vegetables and fruits, the result of the byelaws requiring the wholesale dealers to pay the prescribed fee of one anna in a rupee to the contractor who held the monopoly was, in effect, to bring about a total prohibition of the business of the wholesale dealer in vegetables and fruits. The petitioner challenged this action of the Committee. It was held by Apex Court in para 7 of its judgment that under Article 19(1)(g) the citizen had a right to carry on any occupation, trade or business which right under that clause is apparently unfettered. The only restriction to this unfettered right is the authority of the State to make a law relating to the carrying on of such occupation, trade or business as mentioned in Clause (6) of that Article as amended by the Constitution (First Amendment) Act, 1951. If, therefore, the licence fee cannot be justified on the basis of any valid law, no question of its reasonableness can arise. An illegal impost would at all times be an unreasonable restriction and would necessarily infringe the right of a citizen to carry on his occupation, trade or business under Article 19(1)(g). It was, therefore, held that such an infringement, which is illegal in its inception, can properly be made subject matter of a challenge under Article 32 of the Constitution. In para 8 of the judgment, the Apex Court held that section 293 and section 298 of the U.P. Municipality Act, 1916 did not empower the Town Area Committee to make any bye-law authorising it to charge any fee otherwise than for use and occupation of any properly vested in or entrusted to the management of the Town Area Committee. In the result, it was held that the petitioner Mohd. Yasin was entitled to succeed.
14. In Saghir Ahmad and another v. State of U.P. and others : [1955]1SCR707 , the question arose in respect of the right to carry on business of plying motor vehicles as 'stage carriages' on hire, on the Bulandshahr Delhi route. The running of vehicles was regulated by the Motor Vehicles Act, 1939. It was held in para 9 of the judgment that the right of the public to use motor vehicles on public road cannot, in any sense, be regarded as a right created by the Motor Vehicles Act. Such a right existed anterior to any legislation on that subject as an incident of public rights over a highway. A reference was made to the distinction between carrying on transport buses by common carriers on the public road in America as a 'franchise' which was not a common law right which could be claimed by all citizens. It was then observed that under our Constitution contract carriers as well as common carriers would occupy the same position so far as the guaranteed right under Article 19(1)(g) is concerned and both were liable to be controlled by appropriate regulations under Clause (6) of that Article.
15. In Kharak Singh v. State of U.P. and others A.I.R. 1963 SC 1293, the question which arose in a petition under Article 32 of the Constitution was in respect of the constitutional validity of certain provisions in Chapter XX of the U.P. Police Regulations and the power conferred upon the police official to open a 'history sheet' and keep certain citizens 'under surveillance' which action was alleged to be violative of the right guaranteed to the citizen under Article 19(1)(d of the Constitution which guarantees to every citizen a right to move freely through out the territory of India. The relevant regulation under which surveillance was carried out was regulation 236 of U.P. Police Regulations. The Apex Court considered the American and English decisions on the subject where it was held that 'the house of everyone is to him as his castle and fortress as well as for his defence against injury and violence as for his repose. 'It was, therefore, held that Regulation 236(b) was clearly violative of Article21 as there was no 'law' on which the same could be justified and was, therefore, struck down as unconstitutional.
16. In the light of the above decisions and, in particular, the ratio of the decisions in Bombay Hawkers' Union's case and Sedan Singh's case on which heavy reliance has been placed by Dr. Chandrachud on behalf of the petitioners, we have no hesitation in answering the first question in the affirmative, namely that the petitioners have the right to hawk in the hawking zones in Navi Mumbai Municipal Corporation as a fundamental right guaranteed by Article 19(1)(g) of the Constitution.
17. We may now turn to the second question as to whether the insistence on production of a certificate of residence for 15 years in the State has the sanction of any existing 'law' in sofar as it imposes, in the interests of general public, reasonable restrictions on the exercise of the right conferred by Article 19(1)(g) of the Constitution. The learned Addl. Advocate General Mr. B.P. Apte, has invited our attention to two decisions of the Apex Court to contend that the petitioners' right was not violated. In Viklad Coal Merchant, Patiala and others v. Union of India and others : [1984]1SCR657 , the petitioners were coal merchants who had challenged the virus of section 27-A of the Indian Railways Act, 1890 and the circular issued thereunder on 1st April, 1972 regarding Preferential Traffic Schedule providing for priority for movement of different goods including coal. The petitioners coal merchants - alleged that a total ban was imposed on the transport of coal by giving abbreviation 'GX' and restricting loading of coal wagons from the station categorised as 'GX'. Such 'preferential traffic schedule' in their cumulative effect resulted in total ban on transport of coal by railways at their instance and the said actions were violative of Articles 14 and 19(1)(g) of the Constitution. Rejecting the contention of the petitioners, it was held by the Apex Court that whenever the Court is called upon to examine the complaint that the restrictions imposed on the freedom to carry on trade are unreasonable, it is necessary to find out what is the trade and business of - the petitioner and to what extent the restrictions, if any, are imposed upon the freedom to carry on trade or business. The Apex Court further held that in order to determine whether the restriction was reasonable or not, it was necessary to find out what is the direct impact of the restrictions on the freedom to carry on trade and that is to be kept in view and not the ancillary or incidental effect of the Governmental action on the freedom to carry on trade. It was, therefore, held that the petitioners' business or trade as coal merchants was in no way interfered with by the railways by not being able to provide transport facilities since the railways was not the only means of transport. There are other means of transport by which coal could be transported by the petitioners to the respective places of business. It was then held that even assuming that direct impact of the policy laid down by the Railway Administration pursuant to the orders of the Central Government under section 27-A resulted in denial of the allotment of wagons to the petitioners, the restrictions will nevertheless be reasonable because the petitioners were not wholly denied the allotment of wagons. In the result, the writ petitions were dismissed.
18. In Krishnan Kakkanth v. Government of Kerala and others : AIR1997SC128 , the constitutional validity of the circular dated 19th May, 1995 issued by the Secretary to the Government of Kerala directing that for distribution of pump sets under Comprehensive Coconut Development Programme and other similar schemes of the Agriculture Department and giving specific roles and responsibilities to certain agencies was challenged. It was directed under the circular that M/s. Kerala Agro Industries Corporation (KAICO) and Regional Agro Industries DevelopmentCorporation (RAIDCO) would arrange supply of pump sets in certain districts and in remaining districts, supply was to be effected by private dealers alongwith KAICO and RAIDCO. Reliance was placed on the ratio of the decision in Viklad Coal Merchant's case (supra). The Apex Court held in para 26 of the judgment that fundamental right for trading activities of the dealers in pump sets in the State of Kerala, as guaranteed by Article 19(1)(g) had not been infringed by the impugned circular. The rights guaranteed under Article 19 of the Constitution were not absolute but the same were subject to the reasonable restrictions to be imposed against the enjoyment of such rights. Such reasonable restrictions seek to strike a balance between the freedom guaranteed by any of the clauses under Article 19(1) and the social control permitted by Clause (2) to (6) of Article 19. In para 30 of the judgment, it was held that even for imposing reasonable restriction on the fundamental right guaranteed under Article 19(1), the restriction has to be imposed under a valid law, be it a statutory law or regulation, and not by an executive instruction of the Government. A reference was made in this behalf to Kharak Singh's case (supra). It was then held that though a citizen has a fundamental right to carry on trade or business, he had no fundamental right to insist upon the Government or any other individual for doing business with him. The Government or individual has a right to enter into contract with a particular person or to determine a person or persons with whom it or he will deal. The private dealers cannot insist that the Government must enter into contract with him and make him a approved dealer. The Government has every right to select dealers of its choice for delivery of pump sets at the price agreed upon and to render after sale service to the purchasers of the pump sets covered by the Government Financial Assistance Scheme. Reiterating the law laid down in the case of Viklad Coal Merchant (supra), the Apex Court concluded that the circular dated 19th May, 1995 did not violate the petitioners' right and, therefore, there was no merit in the writ petition.
19. It will be clear from the facts of the two cases summarised above that their ratio has no application to the facts of the present case. There is no controversy before us that, in the light of the ratio of the decisions in Bombay Hawkers' Unions case and Sodan Singh's case, the right to hawk in the hawking zone is a fundamental right guaranteed under Article 19(1)(g) of the Constitution. If respondent Nos. 2 and 3 want to insist on the petitioners' complying with the requirement of production of a certificate of 15 years' residence in the State, it is for the said respondents to show that, in the first place, there exists a law in so far as it imposes, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by Article 19(1)(g). Needless to say that there has to be a 'law' imposing restriction as and if such a 'law' exists, the restrictions should be reasonable in the interests of the general public. Affidavit of Mr. Alhat makes it abundantly clear that requirement of production of certificate of residence for 15 years in the State is a condition of eligibility. Apart from the improper and irresponsible averments made in para 5 of the affidavit, respondents Nos. 2 and 3 have made it clear that this is a condition of eligibility. No law, rule or even a policy resolution has been pointed out to us in support of the addition of item No. (v) in the impugned letter dated 21st August, 1997. We have already indicated above that in some earlier letters of 5th June, 1997 all that was required was production of 4 documents which are more or less similar in nature to the first four items mentioned in the impugned letter. A rubber stamp is now put in the impugned letter in a manner which shows a very casual approach. The designation of the officer from whom the certificate is to be obtained has been wrongly mentioned which, in our view, shows clear non application of mind. The manner in which the rubber stamp has beenput, illegible in some cases, again shows a very casual approach on the part of respondent Nos. 2 and 3. We requested the learned Addl. Advocate General to show any legal sanction or authority in the Asstt. Commissioner requiring the petitioners to produce the certificate of residence for 15 years in the State from the 'Competent Officer'. Nothing was shown to us. Who is to be the 'Competent Officer' has not been clarified. There is no indication in the circular as to whom the petitioners should approach for such a certificate. It is left obscure and vague.
20. We have already referred to Mohammed Yasin' case (supra) where the petitioner was a wholesale dealer in vegetables and fruits at Jalalabad and had challenged the action of the Town Area Committee imposing a fee of one anna in a rupee to be paid to the contractor who held the monopoly in the business of wholesale dealers in vegetables and fruits. Reliance was sought to be placed by the Town Area Committee on its power under sections 293 and 298 of the U.P. Municipality Act, 1916. Apex Court held in paras 7 and 8 of its judgment that the said provisions did not empower the Town Area Committee to make any bye-law authorising it to charge any fee otherwise than for the use or occupation of any property vested in the Committee. It was, therefore, held that if the fee cannot be justified on the basis of any valid law, no question of its reasonableness can arise. An illegal impost must at all times be an unreasonable restriction and will necessarily infringe the right of a citizen to carry on his occupation, trade or business. Similarly in Kharak Singh's case (supra), the Apex Court held that Regulation 236 appearing in Chapter XX of U.P Police Regulations authorising the police to keep 'surveillance' on a citizen was no 'law' which could be justified under Article 19(5) of the Constitution since the Apex Court was dealing with the right under Article 19(1)(g) of the Constitution. In the result, it was held that the said Regulation was plainly violative of the right guaranteed under Article 19(1)(d) and Article 21 of the Constitution. Applying the same ratio, we have no hesitation in coming to the conclusion that there is no sanction of any law, rule or even a policy resolution requiring the production of a certificate of 15 years residence in the State. We need not express any opinion on the question as to whether a mere rule or policy resolution will have the force of law within the meaning of Article 19(6) of the Constitution since such a question does not arise for our consideration. We also need not examine the question as to whether the restriction imposed is a reasonable restriction in the interests of the general public since there is no 'law' authorising imposition of such a restriction. If the insistence on production of a certificate of 15 years' residence in the State is ab initio illegal, it is not necessary for us to examine the ancilliary questions as to whether a mere rule or a resolution of the Corporation would have the force of 'law' and, secondly, whether such a restriction would be reasonable in the interests of general public as contemplated by Clause (6) of Article 19 of the Constitution.
21. In our judgment the ratio of the decision in the case of Viklad Coal Merchant and Krishnan Kakkanth is of no assistance to respondent Nos. 2 and 3. This is not a case where the restriction does not have a direct impact on the petitioners' right to carry on trade as guaranteed under Article 19(1)(g) of the Constitution. The affidavit of Mr. Alhat leaves no doubt whatsoever that production of a certificate of residence for 15 years in the State is a condition of eligibility. Moreover, it is not as if certain percentage of Licenses are reserved in preference, for those who produce a certificate of residence and the remaining are left open for every one else residing anywhere in the country, The approach of respondent Nos. 2 and 3 in rejecting the applications of most of the petitioners is very clear, namely, that any one who does not produce the certificate of residence is not at all eligible to be considered for grant of hawking licence even inthe hawking zone. Under the circumstances, we have no hesitation in answering the second question against respondent Nos. 2 and 3 and in favour of the petitioners namely that insistence on production of a certificate of residence for 15 years in the State does not have the sanction of any existing 'law' in sofar as it imposes, in the interests of general public, a reasonable restriction on the exercise of a right conferred by Article 19(1)(g).
22. Dr. Chandrachud for the petitioners, also invited our attention to the decisions of the Apex Court in (i) Smt. Maneka Gandhi v. Union of India and another : [1978]2SCR621 ; (ii) Ramanna Dayaram Shetty v. The International Airport Authority of India and others : (1979)IILLJ217SC and (iii) Tata Cellular v. Union of India 1994(6) S.C.C. 651 in support of his contention that the Navi Mumbai Municipal Corporation, which is an instrumentality of the State and a regulator of a large number of services and benefits to the society must act in a manner and in accordance with the procedure which is just, fair and reasonable. Sequitur to this argument is that if the procedure evolved by the third respondent Corporation is not just, fair and reasonable, it would clearly be violative of Article 14 of the Constitution. Counsel contends that the rule of Wednesbury unreasonableness must apply here and the decision of an administrative body must be quashed if it is one which no reasonable body of persons would ever arrive at. While there can be no doubt about the proposition of law canvassed by the learned Counsel, we do not think it necessary, for the decision of the present case, to go into the details of the said decisions. We have come to the conclusion that both the questions framed for our decision in para 9 of this judgment must be answered in favour of the petitioners and against respondent Nos. 2 and 3.
22-A. We, therefore, hold that (i) the petitioners have a fundamental right to hawk in the hawking zones which right is guaranteed by Article 19(1)(g) of the Constitution and (ii) the requirement of production of a certificate of residence for 15 years in the State imposed in the impugned letter dated 21st August, 1997 does not have the protection of any existing law, in so far as it imposes, in the interests, of general public, a reasonable restriction in the exercise of a right conferred by Article 19(1)(g). In this view of the matter, the petitioners are entitled to succeed.
23. Since, however, the petitioners are claiming 3 right to hawk and since it is necessary in the light of our judgment to direct respondent Nos. 2 and 3 to reconsider the petitioners' cases without insisting upon the production of certificate of residence for 15 years in the State, we give the following directions.
i) Condition (v) in the impugned letter dated 21st August, 1997 requiringproduction of a certificate of residence for 15 years in the State is herebyquashed and set aside being violative of the provisions of Article 19(1)(g)of the Constitution.
ii) The second respondent Commissioner will reconsider the cases of all theapplicants members of the first three petitioners - as also of petitionerNos. 4 to 17 who fulfil the other four requirements mentioned in theimpugned letter dated 21st August, 1997.
iii) The petitioners are at liberty to produce further material and documents insupport of their claim before the second respondent within a period of fourweeks from today.
iv) The second respondent will consider the case of all the applicants beforehim afresh in the light of the aforesaid judgment and decide the same onmerits without insisting upon the production of certificate of residence for15 years in the State. The second respondent shall decide the claim of the petitioners within a period of ten weeks from today.
24. Rule is accordingly made absolute in the above terms with no order as to costs. Interim order granted in this petition will remain operative for a period of twelve weeks from today.
25. Before parting with this matter, we must express our strong disapproval of the reckless and improper manner in which Mr. Alhat has made averments in para 5 of his affidavit which we have reproduced in para 7 above. Mr. Apte, appearing on behalf of respondent Nos. 2 and 3 tenders an unconditional apology on behalf of Mr. Alhat, Asstt. Commissioner who is present in the Court. Apology tendered today by Mr. Alhat is taken on record. The same is accepted and marked 'X' for identification.
26. Petitions allowed.