Judgment:
C.P. Sen, J.
1. In this writ petition, the petitioners are challenging the order of the Collector dated 18-9-1982 closing all heavy vehicular traffic on the Grat Eastern Road, Raipur, which is part of the National Highway No. 6, between 9 a.m. to 10 p.m.
2. The petitioner No. 1 is a Samiti of truck and motor mechanics doing repairing of trucks and other vehicles at Rajbandha Maidan and adjoining places for the last many years. The petitioner No. 2 is an Association of shopkeepers of motor part dealers doing their business on (Bombay Market. The petitioner No. 3 is an Association of persons doing business of repairs of motor vehicles and other automobiles at Bombay Market. The National Highway No. 6 starts from Daulia and connects Nagpur. Raipur, Sambalpur, Bahargora and Calcutta. It is also known as Great Eastern Road and passes through the heart of the city of Raipur, where it is named as Jawaharlal Nehru Marg. In the Master Plan there is a link road to divert the traffic from this road which passes through the busy areas like hospitals, University, schools, colleges, Civil Court, shopping centres and other institutions. According to the petitioners, the closure of this road for heavy vehicular traffic during day time has resulted in loss of business to about 500 motor mechanics who are working in this area. They represented to the Collector against the ban imposed regarding movement of heavy vehicular traffic on this road, but he paid no heed. The petitioners have a right of livelihood under Article 21 of the Constitution and by their arbitrary action, the respondents have deprived the petitioners of their source of livelihood, which is arbitrary, unjust and unfair. Though heavy vehicular traffic is not permitted during day time, but the respondents are permitting city buses to be plied on this road during day time. Moreover, the National Highway vests in the Central Government-under the National Highways Act, 1956 and the Collector had no jurisdiction to impose such ban without prior concurrence of the Central Government. The link road has not yet been fully constructed and further there is encroachment on a portion of the link road by one Oswallspat Udyog Ltd. The respondents have decided to shift the transport business to Tatia Bandh but that area has not yet been developed, nor any facilities given to enable the transport business to be shifted there.
3. The respondents in their return submitted that the Collector, Raipur has issued the notification on 18-9-1982 under Section 74 of the Motor Vehicles Act, 1939 read with Rule 257 of the M. P. Motor Vehicles Rules, 1974, as the Great Eastern Road passes through the very congested area of Raipur city having a number of institutions on this road, including hospitals, schools, colleges, shopping centres etc. and the movement of heavy vehicular traffic on this road is dangerous to public safety. The ban has been imposed in public interest to avoid risk, hazards and public safety. The notification has come into force in 1982 but nobody came forward to challenge the same till 1986. There was a proposal to construct a Saheed Smarak on the Rajbandha Maidan in the year 1972, but thereafter these motor mechanics had encroached on this land and constructed Tapras where they are doing their business and also residing there. The respondents have offered alternate sites to them at Tatia Bandh to shift their business to that place and also extended all help and facilities for that purpose. The petitioners being encroachers, they have no right as such. Though the National Highway vests in the Central Government, there is no provision in the Act for regulating the traffic on the road , which passes through busy areas of a city. In fact, there were number of casualties on this road and there is every risk of loss of life if heavy vehicular traffic is permitted on this road during day time. The Collector has been empowered by the State Government under Rule 257 to exercise power under Section 74 of the Motor Vehicles Act to regulate traffic on a particular area or road. Therefore, the Collector had the right and authority to issue the notification in question. Public safety and convenience being the prime consideration, the petitioners as such have no right to challenge the notification in question. Individual rights have to be given way to public interest. The petitioners are mere trespassers and they have no legal right to stay on in the area in question. The link road is completed and there is no hindrance in heavy vehicular traffic on this road. The encroachment made by Oswal Spat Udyog Ltd. is being attended to and the encroachment will be removed in near future. But that encroachment has not in any way come in the way of flow of traffic. The petitioners should shift their business to Tatia Bandh area where they are being provided with necessary plots and other facilities.
4. By way of amendment the petitioners have further contended that since the notification in question has not been published in the official gazette, it is ineffective and the notification, though issued on 18-9-1982, is sought to be enforced for the first time recently by putting a board at the entrance.
5. Under Section 4 of the National Highways Act, 1956, all national highways vest in the Central Government but under Section 2 such part of the national highway which are situated within any municipal area is not to be treated as national highway. Under Section 82(1)(g) of the M. P. Municipal Corporation Act, 1960 all roads within the municipal area vest in the municipal corporation. Therefore, though National Highway No. 6 belong to the Central Government, part of that highway which passes through the municipal Corporation area vests in the municipal Corporation. It is true that under Section 5 of the National Highways Act the responsibility for the development and maintenance of the highway is on the Central Government, but it may delegate these functions to the State Government in so far as that part of the national highway which passes through its area. There can be no quarrel that the national highways vest in the Central Government. The Supreme Court in Manglaur Municipality v. Mahadeo, AIR 1965 SC 1147, has held that vesting means that it has the exclusive right to manage and control the surface of the soil as is necessary to enable it to adequately maintain it and enable it as owner to bring possessory action against trespassers. Since part of the highway which passes through the corporation limits is not to be treated as highway, it vests in the municipal corporation and, therefore, and it is the municipal corporation in which portion of the highway, vests. This Court in Municipal Committee, Raigarh v. Ramkaran 1958 MPLJ 585 : (AIR 1958 Madh Pra 355) has held that the word 'vest' should usually be taken to mean 'vest in interest rather than vest in possession. The Supreme Court in Stale of U. P. v. Ata Mohd., AIR 1980 SC 1785 has held that what is vested in the municipality is the street qua street and if the municipality put the street to any other user than that for which it was intended, the State as its owner, was entitled to intervene and maintain an action and to get any person in illegal occupation evicted. This Court in Mahajan Exchange Ltd. v. State of M. P. (1980 Jab LJ 581) has held that when the land vested in the municipality, Nazul Officer cannot start proceedings. But these decisions are of no help to the petitioners, since the portion of the national highway which passes through the Raipur city is not the property of the Central Government. Moreover, under Section 74 of the Motor Vehicles Act, the State Government or any other authority authorised in this behalf, if, satisfied that it is necessary in the interests of public safety or convenience to restrict or prohibit, subject to such exceptions and conditions as may be specified in the notification the driving of motor vehicles or of any specified class of motor vehicles in any specified area or on a specified road, can impose restrictions. Under Rule 257 of the M. P. Motor Vehicles Rules. 1974, the District Magistrate has been empowered to exercise these powers. Therefore, the District Magistrate the Collector, Raipur, had the authority and jurisdiction to impose the ban. The notification was duly notified in the Government gazette on 18-2-1983. It is common knowledge that due to growth of population in the cities, the roads have become congested and heavy vehicular traffic on these roads have become hazardous to public safety. Admittedly there are large number of schools, colleges, hospitals and other institutions on this road and as has been stated in the return there has been many casualties due to motor accidents. In order to divert the heavy vehicular traffic, a link road has been constructed. It is not the case of the petitioners that there is no traffic flowing on the link road. What they have stated is that there is encroachment on a portion of the road by Oswal Spat Udyog Ltd. but from the map produced by the respondents it is seen that the encroachment is on a portion of the link road and it has not completely obstructed the flow of traffic on this road. No transport operator has come forward to challenge the imposition of ban which is in force since 1982. It is difficult to accept that it was not in force till the filing of the present petition. Even in the petition there is no allegation that the notification was not enforced all these years and sought to be enforced in 1986 only. The plea has been taken by way of amendment in the petition. So we are of the opinion that under Section 74 of the Motor Vehicles Act the State Government or the authority authorised by it in this behalf has the power in public interest to regulate the traffic on a particular road or area even National Highways.
6. A single Bench of the Calcutta High Court in New Punjab Calcutta Transport Co. v. Commr. of Police, Calcutta, (1962) 66 Cal WN 1029 has held that Section 74 of the Motor Vehicles Act does not touch on the fundamental right of the petitioners to carry on business. The satisfaction enjoined in Section 74 is not arbitrary in nature. Such restrictions cannot be imposed merely at the whim of authorities but may only be done either in the interest of public safety or convenience on regard being had to the nature of any road or bridge. The section itself provides the guidance as to when such power must be used. Unless it is shown that such power was not bona fide exercised, the discretion should be left with the executive administration and the court should not substitute its own view of public safety and convenience or of the nature of the road or bridge in place of the view of the executive administration. Rajendra Sachar, J, (as he then was) in Jaswant Singh v. State of Rajasthan, AIR 1977 Raj 42 has held that because of the danger to life from rashly and fast moving tempos and the heavy traffic on the road it was necessary in the interest of public that tempos be prohibited from plying on the road. The R.T.A. was authorised by the State Government under Section 74 to pass such an order. As the order was not shown to have been passed mala fide or on extraneous considerations, the order was immune from scrutiny by the High Court under Article 226 of the Constitution. The High Court by the very nature of things can obviously not have as full a data or facts before it as the State Transport Authority, so as to come to a conclusion whether it would be in the interest of public safety or convenience that the tempos should or should not be prohibited from operating in the portion of the particular road.
7. In the present case, it is not the case of the petitioners that the ban regarding movement of heavy vehicular traffic on the road was imposed mala fide or on extraneous considerations. A Division Bench of this Court in J.P. Sanghi v. State of M. P., 1985 MPU 204 : (AIR 1985 Madh Pra 109) has held that while there is no provision in law regarding construction of speed brakers, the basic intention behind the construction of speed brakers is to control the speed of vehicles and avoid accidents, and thereby safeguard the life and secure safety of the users of the road. The construction of speed brakers being in public interest, direction for its removal is unwarranted and it is not necessary to frame rules under Section 91 of the Motor Vehicles Act and a direction to frame a scheme conducive to the purpose for which the speed brakers were erected is sufficient. A Division Bench of this Court in N. M. Transport Co. v. R. T. Authority, AIR 1952 Nag 111 has held that all that Section 74 authorises the District Magistrate is to prohibit or restrict in the interest of public safety or convenience the driving of motor vehicles or any specified class of motor vehicles on a specified road. The prohibition or restriction may no doubt be subject to exceptions and conditions. The exceptions and conditions cannot however be arbitrary and must themselves proceed on no other considerations except those necessitating the prohibition or restriction under the section. A sweeping prohibition that no motor vehicle shall ply on the road without the previous written permission of the authority is beyond the scope of the power conferred by Section 74 of the Act and is therefore invalid. This case is clearly distinguishable because there was a total prohibition to ply on the road without the previous written permission of the authority and so this has been held to be beyond the powers conferred by Section 74. Here there is no total ban on plying of heavy vehicles and the ban is only during day time, when there is congestion on road. Besides, there is also a provision for link road so that heavy vehicular traffic can pass through smoothly on the link road instead of the congested area on the national highway. In fact, passing of the heavy vehicular traffic through the link road during day time is for the smooth flow of traffic and it is in the interests of the transporters as well as of the general public, to avoid the busy road during day time there by reducing chances of mishap. Under the circumstances, the Collector was justified in putting the ban on the movement of heavy vehicular traffic on this road during day time.
8. Regarding the next contention that by putting the ban on the movement of heavy vehicular traffic on this road, the petitioner's fundamental right under Article 21 of the Constitution, i.e. the right of livelihood, has been affected, suffice it to say that the motor mechanics had filed Misc. Petition No. 3393 of 1983 for their eviction from Rajbandha Maidan and that petition has been decided on 12-3-1986. There the motor mechanics had agreed to shift their business to Tatiabandh area where a transport Nagar is being developed and the respondents had given an assurance that they would provide plots, water supply and electric connection to the motor mechanics and will extend help for getting bank loans from the bank and also will develop the area in due course of time. Therefore, the main grievances of the petitioners have disappeared, since they will be shifted to other area where the ban imposed by the Collector is not in operation. The Supreme Court in Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 has held that the Commissioner was justified in directing removal of the encroachment by pavement dwellers on footpath and accessory roads because here the hutments were never regularised, but the municipal corporation was directed to provide alternative site for their rehabilitation. The Supreme Court in Bombay Hawkers' Union v. Bombay Municipal Corporation, AIR 1985 SC 1206 has held that no one has any right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public. Public Streets, by their very nomenclature and definition, are meant for the use of the general public. They are not laid to facilitate the carrying on of the private trade or business. So restrictions can be imposed on carrying on trade or business by the Hawkers on the road. As such there is no question of infringement of Article 21 of the Constitution by the impugned notification. .
9. In the result the petition fails and it is dismissed. There shall be no order as to costs. The outstanding amount of security be refunded to the petitioners.