Judgment:
ORDER
1. The petitioner - Bapujinagar Khyudra Byabasai Association represented through its Secretary has filed this writ application challenging the proposed eviction of the street traders from plot Nos. 295 and 304 of mouza Bapujinagar in Bhubaneswar town.
2. It is the case of the petitioner that its members had, in order to earn their livelihood, encroached upon portions of Government lands from where they are carrying on their business as cobblers, tailors, barbars, tea-stall owners, fruit sellers, 'Jhumpudi' hotel owners, chat sellers and the tike. According to the petitioner, street-trading is a fundamental right of its members and their eviction would deprive them of their fundamental right guaranteed under Article 19(1)(g) of the Constitution of India and as they will be thrown out of their business, it will amount to depriving them of their right guaranteed under Article 21 of the Constitution of India. Accordingly, a prayer is made for restraining the opposite parties from evicting the members of the petitioner -Association.
3. The opposite parties, in particular, the Executive Officer, Bhubaneswar Municipal Corporation (Opposite Party No. (sic)) has filed a counter opposing the petition. It is specifically averred that plot Nos. 295 and 304 arc road side areas and the business activity is spilling over to the main road leading to Rajmahal square which is one of the busiest roads of the city. It is further alleged that street-trading is causing traffic jams and is creating a law and order problem. It is also making the place dirty and unhygienic. It is also stated that one of the aforesaid plots is reserved for car parking in the Master Plan and in order to provide space for parking, it is necessary to evict the members of the petitioner - Association who are in unauthorised occupation of the area in question.
4. Though subsequently the opposite parties have modified their stand and filed an additional affidavit stating therein that alternative area will be provided to the identified persons where, as admitted by the petitioner, are seventy-seven in number, we would like to briefly deal with the question of rights claimed by the petitioner, as this aspect was highlighted in the submission made by the learned counsel for the petitioner.
5. The contention of the learned counsel for the petitioner that the right to life includes the right to livelihood, is obviously based on the decision of the Apex Court in the case of Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, wherein the Court observed (Para 32):
'.... As equally important facet of that right is the right of livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of his livelihood to the point of abrogation ....'
We feel that the aforesaid observations of the Apex Court have to be read in the context of the facts involved in mat case. The case in question was not one of street trade. That was a case where very poor persons who had made the pavements their homes were sought to be evicted therefrom and in that context, the above quoted observations were made. This fact was taken note of by the Apex Court in a subsequent case, Sodan Singh v. New Delhi Municipal Committee, AIR 1989 SC 1988, which was a case of street hawkers. The contention that eviction of street hawkers would deprive the right guaranteed under Article 21 of the Constitution was repelled by the Apex Court in the following words (Para 20) ;
'We do not find any merit in the argument founded on Article 21 of the Constitution. In our opinion, Article 21 is not attracted in a case of trade or business - either big or small. The right to carry on any trade or business and the concept of life and personal liberty within Article 21 are too remote to be connected together. The case of Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545, AIR 1986 SC 180, heavily relied upon on behalf of the petitioners, is clearly distinguishable. ....'
Thus, the contention of the learned counsel for the petitioner that eviction of the street traders will amount to deprivation of their right guaranteed under Article 21 of the Constitution of India, cannot be accepted.
6. The other contention of the learned counsel that the members of the petitioner - association have a fundamental right to carry on business of their choice from the area under their occupation, also cannot be accepted in toto. The petitioner has obviously confused 'the right of carrying on business of their choice' with 'the imaginary right of carrying it on from a particular place.' Obviously, the two are different. Of course, a person has the fundamental right to carry on any business or profession of his choice, subject to reasonable restrictions, but he does not have a fundamental right to carry on a business or profession from a particular place. The contention that the persons have fundamental right to carry on business from a particular place or, in other words, the persons have fundamental, right to occupy specific places (as in the present case) was raised before the Apex Court in Sodan Singh's case (AIR 1989 SC 1988) (supra), but was repelled. Therein, their Lordships observed (Para 18):
'..... But can there be at all a fundamental right of a citizen to occupy a particular place on the pavements where he can squat and engage in trading business We have no hesitation in answering the issue against the petitioners. The petitioners do have the fundamental right to carry on a trade of business of their choice, but not to do so on a particular place.........
It, therefore, follows that though a person has a fundamental right to carry on a trade or business of his choice, he has no fundamental right to insist that he will carry on the business or profession from a particular place.
7. This brings us to the question, whether or not the authorities are justified in removal of encroachments by evicting the members of the petitioner-Association. To this, we say that it should not be forgotten that essentially roads and streets are for convenience of persons commuting from one place to the other and as such, the general public has the right of passage or access to and over the streets and roads. Therefore, it becomes a duty of the civic authorities to see that roads and streets are not so encroached upon that it makes the movement thereon well nigh impossible. Therefore, street-trading has to be regulated and if street-trading in a particular area or street is found not to be in the public interest, street trading thereon can be curtailed and this cannot be termed as affecting the fundamental right guaranteed under Article 19(1)(g) of the Constitution of India. This aspect has also been considered in Sodan Singh's case (AIR 1989 SC 1988) (supra) where the Apex Court observed as under: (Para 23)
'..... If a road is not wide enough to conveniently manage the traffic on it, no hawking may be permitted at all, or may be sanctioned only once a week, say on Sundays when the rush considerably thins out. Hawking may also be justifiably prohibited near hospitals or where necessity of security measures sodemands. There may still be other circumstances justifying refusal to permit any kind of business on a particular road. The demand on behalf of the petitioners that permission to squat on a particular place must be on a permanent basis also has to be rejected as circumstances are likely to change from time to time .....'
However, we will not delve into this aspect any further. In view of the conciliatory effort of the petitioner and the opposite parties, the petition could have been disposed of without entering into any discussion, but as the above mentioned points were argued at length at the time of hearing, we thought it proper to make a brief reference thereto in our order.
8. In an effort to amicably settle the dispute, we had by our order dated 1-8-1996 called upon the petitioner- Association to submit the names of its members who are carrying on trade or business over the encroached area of the plots in question. Accordingly, a list containing the names of 77 such encroachers (traders) was filed by the petitioner- Association. They are --
1. Pravat Ku. Samantaray, s/o. Raghunath Samantaray,
2. Rcbati Ballay Samantaray, s/o. -do-
3. Sarat Ch. Samantray, s/o. late Seshadev Samantaray,
4. D. Kedar, s/o. D. Surya Narayan,
5. Upendra Roul, s/o. Arjun Roul,
6. Kumar Jena, s/o. Akhil Jena.
7. Madan Mohan Jena, s/o. Naruttam Jena,
8. Jayaram Sahu, s/o. Sridhur Sahu,
9. Sirish Samal, s/o. Jagannath Samal,
10. Majistar Singh, s/o, Dinaraty Sahu,
11. Mohan Sahu, s/o. Basudev Sahu,
12. Abhaya Behera, s/o. Balaram Behera,
13. Bira Kishore Samal, s/o. Biswaswar Samal,
14. Gourahari Behera, s/o. Sanatan Behera,
15. Tarababu Singh, s/o. Sriganesh Singh,
16. Santosh Behuria, s/o. Kelu Charan Behuria,
17. Gangadhar Patra, s/o. Bankanidhi Patra,
18. Sarat Gh; Sahu, s/o. Gopal Sahu,
19. Pravakar Sahu, s/o. Jagannath Sahu,
20. Kartik Behera, s/o. Anadi Behera,
21. Arabinda Sharma, s/o. Surendra Sharma,
22. Baba Singh, s/o. Nayana Sukha Singh,
23. Prafulla Sahu, s/o. Laxman Sahu,
24. Sukadeb Nath, s/o. Keshab Nath, 25. Nityananda Rout, s/o. Dushasan Rout,
26. Pravakar Swain, s/o. Dhuli Swain.
27. Asish Mukharji, s/o. Senprati Mukharji,
28. Pravat Kumar Prusti, s/o. Arjun Prusti,
29. Fakir Das, s/o. Puma Ch. Das,
30. Trilochan Rout, s/o. Arjun Rout,
31. Niranjan Das, s/o. Krushna Ch. Das,
32. Pramod Rout, s/o. Banamali Rout,
33. Gopinath Nanda, s/o. Harihar Nanda,
34. D. Kedar, s/o. D. Bangari (dead)
35. Praful Mohapatra, s/o. Lokanath Mohapatra,
36. Panu Sethi, s/o. Banambar Sethi,
37. Gaphur Khan, s/o. A. Rahiman,
38. Naba Behera, s/o. Sankar Behera.
39. Ghurnananda Mallik, s/o. Sadananda Mallik,
40. Laxmidhar Behera, s/o. Bankanidhi Behera,
41. Pitambar Sahu, s/o. Rama Chandra Sahu,
42. Harilal Sharma, s/o. Ram Jadia Prasad,
43. Bhola Choudhury, s/o. Gangadhar Choudhury,
44. Krushingha Ch. Sahu, s/o. Arjuni Sahu,
45. Bansidhar Das, s/o. Daitari Das,
46. Ananta Behera, s/o. Jagannath Behera,
47. Arjun Rout, s/o. Laxman Rout,
48. Madhu Pali, s/o. Bhamarbar Pali,
49. Niranjan Sahu, s/o. Gandharba Pali,
50. Sarat Pati, s/o. Bhramarbar Pati,
51. AB. Rabana Rao, s/o. AB Sushil,
52. Prasanna Sahu, s/o. Laxman Sahu,
53. Budhibaban Sahu, s/o. Nityananda Sahu,
54. Babuli Patraj s/o. Gangadhar Patra,
55. Hari Prusti, s/o. Bulei Prusti,
56. AS Talil, s/o. AS Pasa,
57. Adi Sethi, s/o. D. Penteya Sethi,
58. Mahab Kabi, s/o. Pabitra Kabi,
59. Ramesh Rout, s/o. Kirtan Rout,
60. Rajkishore Sahu, s/o. Laxman Sahu,
61. Pradeep Sahu, s/o. Nrushingha Sahu,
62. Lokanath Mohanty, s/o. Raghunath Mohanty,
63. Birabhadra Prusti, s/o. Bulei Prusti,
64. Trinath Barik, s/o. Biswanath Barik,
65. Artabandhu Mallik, s/o. Nisakar Mallik,
66. Chakradhar Roul, s/o. Raghunath Roul,
67. Banshidhar Roul, s/o. Bira Rout,
68. Harischandra Behera, s/o. Sankar Behera,
69. Manoj Kumar Khemka, s/o. Shyamsundar Khemka,
70. D. Nag, s/o. D. Bangsri.
71. Chakradhar Sahu, s/o. Tahali Sahu,
72. Srinibas Patra, s/o. Narayan Patra,
73. Manoj Singh, s/o. Kanchan Singh,
74. Ramakanta Malla, s/o. Rangadhar Malla,
75. Kailash Jhoshi, s/o. Bhramar Lal,
76. Kailash Sharma, s/o. Bhramarlal Sharma,
77. D. Bhogi, s/o. D. Bangari.
9. Opposite party No. 2 has also filed a list along with a memo containing the names of 35 persons, who, they admit, are encroachers and carrying on street-trading over the plots in question and need to be rehabilitated, These thirty-five persons are admittedly from out of the above list of seventy-seven persons. They are --
1. Bansidhar Routray, s/o. Birabar Routray,
2. D. Nagaraj, s/o. D. Bangri,
3. Chakradhar Raul, s/o. Raghunath Raul,
4. Artabandhu Mallick, s/o. Nisakar Mallick,
5. Lokanath Mohanty, s/o. Raghunalh Mohanty,
6. Pradeep Ku. Sahoo, s/o. Narasingh Sahoo,
7. D. Bhogeswar Naidu, s/o. D. BangarNaidu,
8. Harihar Prusty, s/o. Bulei Prusty,
9. Rajkishore Sahoo, s/o. Laxman Sahoo,
10. Ramesh Ch. Rout, s/o. Kirtan Rout.
11. Babuli Patra, s/o. Bhubaneswari Patra.
12. Budhi Sahoo, s/o. Late Nityananda Sahoo,
13. Sarat Ch. Pati, s/o. Bhamarbar Pali.
14. Niranjan Sahoo, s/o. Gandharba Sahoo,
15. Madhusudan Pati, s/o. Bhamarbar Pati,
16. Arjun Ch. Rout, s/o. Laxman Rout,
17. Pramod Rout, s/o. Banamali Rout,
18. Upendra Raul, s/o. Arjun RauI,
19. D. Kedar, s/o. D. Rangari.
20. Gopinath Nanda, s/o. Harihar Nanda,
21. Panu Sethi, s/o. Banambar Sethi.
22. D. Kedar, s/o. D. Suryanarayan,
23. Neha Behera, s/o. Sankar Behera.
24. Sarat Ch. Samantaray, s/o. Seshadev.
25. Laxmidhar Behera, s/o. Bankanidhi Behera.
26. Harish Ch. Behera, s/o. Sankarsan,
27. Santosh Ku. Behera, s/o. Kalu Behera.
28. Jayaram Sahoo, s/o. Sridhar Sahoo.
29. Pravakar Sahoo, s/o. Jagannalh Sahoo.
30. Sukadev Nath, s/o. Keshab Nath,
31. Trilochan Raul, s/o. Arjun Raul,
32. Adikanda Sethi, s/o. D. Pantey,
33. Sayed Khali, s/o. Sayed Basa,
34. Prafulla Ku. Mohapatra, s/o. Lokanath,
35. Golam Gaful Khan, s/o. Abdul Rahaman.
lt has also been stated by the corporation that out of the said thirty-five persons, twenty-five persons can at the first instance be accommodated in twenty-five kiosks which would be erected on plot No. 295 and that the remaining ten persons would be settled in the second phase within a specified period. Learned counsel for the petitioner agrees to the said proposal. He further agrees that out of the aforesaid thirty-five persons, lots can be drawn for the purpose of allotment of twenty-five kiosks.
10. We, accordingly, direct the Municipal Corporation (opposite parly No. 2) to draw lots through an independent person, for allotment of twenty-five kiosks to twenty-five persons from out of the above thirty-five persons. The remaining ten persons shall be provided suitable sites as soon as alternative arrangement is made for their resettlement in any of the four markets -Sahidnagur Market, Unit IV Market. Baragada Market and Siripur Market. The thirty-five traders admittedly being the persons included in the list of seventy-seven persons, referred to above, who. according to the petitioner, are its members and presently occupying small areas of the plots in question, the remaining (forty-two) persons thereof also need to be accommodated at a proper site.
11. The learned counsel for the Municipal Corporation, however, submits that unless the bona fides of the said forty-two persons are established, it will not be possible to allot them any site. This stand appears to be reasonable. In order to ascertain the bona fide of the said forty-two persons, or in other words, in order to find out whether or not the said forty two persons are in occupation of the plots in question for last many years, it seems necessary to hold some sort of an inquiry. Learned counsel for the petitioner does not dispute this position.
12. We, therefore, direct that the authorities under Bhubaneswar Municipal Corporation shall, in a fair and reasonable manner and after due notice to the persons concerned, hold an inquiry and ascertain whether or not the said forty-two persons, reference to whom has been made above, are occupying the area for a long span of lime. These persons wilt be free to adduce whatever evidence they like -- oral or documentary. Thereafter, the Municipal authorities shall take prompt and appropriate steps to rehabilitate them in the said four markets, i.e. Sahidnagar Market, Unit IV Market, Buragada Market and Siripur Market, on establishing their respective bona fides, as stated in the additional affidavit. As this is a question of providing alternative site to the persons who are being evicted, it is necessary that the Municipal Corporation and its functionaries should act fairly and promptly in re-settling these persons. This order regarding rehabilitating the persons will be operative if the plots in question are voluntarily vacated by the concerned persons by the 15th of September. 1996. If the plots in question are vacated, as directed above, the Municipal Corporation shall complete the first phase of erecting twenty-five kiosks within three months thereafter. It is hoped that the total remaining fifty-two (10 x 42) persons will be resettled at other suitable sites within a further period of three months thereafter. But the case of the remaining ten persons of the list of thirty-five persons shall be considered before considering the case of the forty-two persons from out of the list of seventy-seven persons. However, the authorities will not be unreasonable in fixing the rates/charges for providing such alternative sites to such persons who are being evicted from the plots in question.
13. Before concluding, we may revert to the question of exercise of fundamental rights with which we have begun our judgment. The petitioner, as we gather from the arguments advanced, seems to be under an impression that the street traders have a fundamental right of street-trading and they cannot be evicted as it would amount to denying them their right. The petitioner seems to have forgotten that though a citizen has the right to exercise his fundamental right, it is not without restriction nor is it so absolute that it can be exercised in a manner which will amount to depriving another of exercising his fundamental right or curtail the fundamental right of another. If a street trader has the right to trade on the street, so also has a citizen the right to freely move on the roads and streets for proceeding from one place to the other. The Constitution guarantees a citizen the right to move freely throughout the territory of India which, we feel, would also include within it even the right to move freely from one place to the other in the same town, of course, subject to reasonable restrictions. Thus, if all street traders claiming absolute or unrestricted right to occupy all the public roads and streets in exercise of the assumed unrestricted fundamental right of street trading, they will definitely obstruct others from exercising their right of free movement on the roads and streets. Thus, it is in this view of the matter that the fundamental right of street trading cannot be claimed to that extreme hut has to be regulated. It is, therefore, high time that the municipal authorities should seriously think of framing appropriate regulation(s) ear marking streets and roads where there can or cannot be street trading. This will naturally depend on various factors, e.g., width of the road, locality and so on. And, this particular aspect which was highlighted in the opinion of Kuldip Singh, J. in Sodan Singh's case (AIR 1989 SC 1988) (supra), docs not seem to have been seriously taken note of by the concerned authorities yet.
14. With the observations and directions aforesaid, the writ application is disposed of. There shall, however, be no order as to costs.
P.K. Mohanty, J.
15. I agree.