Supreme Court of India
MD. MURTAZA & ORS.versusSTATE OF ASSAM & ORS.
- Citation
- 2011 INSC 620
- Decided
- 29 August 2011
Holding
The restriction on the appellants' right to conduct business by relocating wholesale markets to the outskirts of Guwahati is a reasonable restriction under Article 19(6) in the public interest and is therefore constitutionally valid.
Summary
The appellants, wholesale vegetable and fruit vendors, were ordered by the Gauhati High Court to vacate the Machkhowa market in Guwahati to make way for an administrative building, and were directed to shift to a new market at Ganeshguri. They challenged the order, claiming a violation of their fundamental right to carry on business under Article 19(1)(g) of the Constitution. The Supreme Court held that while the right to trade is fundamental, it is subject to reasonable restrictions under Article 19(6) and that the restriction was reasonable, being aimed at alleviating traffic congestion, health hazards, and pollution. The Court emphasized that reasonableness must be assessed from the perspective of public interest, not merely the affected traders, and that policy decisions of the executive are entitled to wide latitude. Consequently, the Court upheld the shift of wholesale markets to the city outskirts as a valid exercise of state power. The appeals were dismissed with no costs awarded.
Issues considered
- The validity of the restriction on the appellants' right to conduct wholesale trade under Article 19(1)(g) and 19(6) of the Constitution.
- Whether the relocation of wholesale markets to the outskirts of Guwahati constitutes a reasonable restriction in the public interest.
- Extent of judicial intervention in administrative policy decisions concerning urban planning and public health.
Legislation cited
- Constitution of Indias. Article 19(1)(g), s. Article 19(6)
Subjects
Article 19(1)(g)Article 19(6)reasonable restrictionpublic interestwholesale market relocationtraffic congestionhealth and hygieneadministrative lawjudicial reviewpolicy decision
Judgment
(2011] 10 S.C.R. 755
MD. MURTAZA & ORS. A
v.
STATE OF ASSAM & ORS.
(Civil Appeal No. 7517 of 2011)
AUGUST 29, 2011
B
[MARKANDEY KATJU AND CHANDRAMAULI KR.
PRASAD, JJ.]
Constitution of India, 1950 - Article 19(1)(g) and 19(6) -
Appellants and other wholesale vegetable and fruit vendors C
engaged in selling vegetable and fruits at market in the city
- Problem of traffic congestion, health and hygiene, pollution
caused - Proposal to remove the appellants and others and
shift them to a new market - Pursuant to the order by the High
Court they had to vacate the possession of the premises - D
On appeal, held: Right to do business is a fundamental right
guaranteed under Article 19(1)(g) but is subject to reasonable
restrictions under Article 19(6) - 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 E.
general public and not merely from the point of view of the
persons upon whom the restrictions are imposed - Thus, the
action of the Authorities cannot be faulted with - Shifting of
the wholesale markets to the outskirts of the city or beyond
was clearly reasonable - Public interest prevails over the F
private interest - Executive is free to recognize degrees of
harm - State must be left with wide latitude in devising ways
and means of social control and Regulation, and the court
should not, unless compelled by the law, encroach into this
field - Thus, the appellants and other wholesale traders
should shift to the wholesale traders markets at the outskirts G
or outside the city limits.
Administrative law - Policy decision - Interference by the
courts - Held: In the matters of policy, the courts have a
755 H
756 SUPREME COURT REPORTS [2011] 10 S.C.R.
A limited role and it should only interfere with the same when it
is clearly illegal - On facts, the shifting of the wholesale
markets to the outskirts of the city was not illegal - It was a
salutary step for undoing a mischief - Thus, interference by
the court not called for.
8
Friends Colony Development Committee vs. State of
Orissa AIR 2005 SC 1: 2004 (5) Suppl. SCR 818; Sales Tax
Officer vs. Shree Durga Oil Mills (1998) 1 SCC 572,: 1997 (6)
Suppl. SCR 488; Hanif Quareshi v. State of Bihar AIR 1958
SC 731; State of Gujarat v. Shanti/al AIR 1969 SC 634: 1969
C (3) SCR 341; Laxmi Khandsari v. State of UP. AIR 1981 SC
873: 1981 ( 3 ) SCR 92; Divert v. State of Gujarat AIR 1986
SC 1323: 1986 SCR 479; State of Madras v. Row 1952 SCR
597; Peerless v. Reserve Bank AIR 1992 SC 1033: 1992 (1)
SCR 406; Harakchand v. Union of India AIR 1970 SC 1453:
D 1970 (1) SCR 479; Jyoti Pershad v. Union Territory of Delhi
AIR 1961 SC 1602: 1962 SCR 125; Puthumma v. State of
Kera/a AIR 1978 SC 771: 1978 (2) SCR 537; P.P.
Enterprises v. Union of India AIR 1982 SC 1016: 1982 (3)
SCR 510 - referred to.
E
American Federation of Labour v. American Sash and
Door Co. 335 US 538 (1949); New State Ice Co. v.
Liebemann 285 U.S. 262 (1932) - referred to.
Case Law Reference:
F
2004 (5) Suppl. SCR 818 Referred to Para 7
1997 (6) Suppl. SCR 488 Referred to Para 8
AIR 1958 SC 731 Referred to Para 10, 13
G 1969 (3) SCR 341 Referred to Para 10
1981 (3) SCR 92 Referred to Para 10
1986 SCR 479 Referred to Para 10
H
MD. MURTAZA & ORS. v. STATE OF ASSAM & ORS. 757
1952 SCR 597 Referred to Para 10 A
1992 (1) SCR 406 Referred to Para 10
1970 (1) SCR 479 Referred to Para 10
1962 SCR 125 Referred to Para 11 B
1978 (2) SCR 537 Referred to Para 11
1982 (3) SCR 510 Referred to Para 11
1959 SCR 629 Referred to Para 14
c
335 us 538 (1949) Referred to Para 16
285 U.S. 262 (1932) Referred to Para 17
CIVIL APPELLAE JURISDICTION : Civil Appeal No. 7517
of 2011. D
From the Judgment & Order dated 28.04.2008 of the .
Gauhati High Cburt in Writ Petition (C) No. 8081 of 2005.
WITH
C.A. No. 7518 of 2011. E
Jayant Bhushan, Nagendra Rai, Vljay Hansaria, Pradip K.
Ghosh, Parthiv K. Goswami, S. Hariharan,.Rajiv Mehta, Manish
Goswami (for Map & Co.), T. Mahipal, Shantanu Sagar, Ranjan
Kumar Pandey, Arun K. Sinha, Rakesh Singh, Sumit Sinha, F
Avijit Roy, Deepika Ghatowar (for Coporate Law Group) for the
appearing parties.
The following Order of the Court was delivered
ORDER G
1. Leave granted.
2. These appeals have been filed against the impugned
judgment and order dated 28.4.2008 passed by the Gauhati
H
SUPREME COURT REPORTS (2011) 10 S.O.R.
A High Court in Writ Petition (Civil) No. 8081 of 2005.
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
8
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
C 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 constr\,lcted at Ganeshguri. It
was. submitted by th.e appellants and others that there is not
enough spa~. in the Ganeshguri municipal market for the
D 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 affidavit~ filed before us it has been
stated that all parts of the city of Gauhati, including Machkhowa
. E is very congested and hence the appellants and other
1;
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 that wholesale market and consequently the area
F 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 Garc~uk near the bypass on cin area of 8 bighas of
land and the. foundation stone of the project market w;,:1s laid
G. by t.he Cl)ief Minister on 2~.2.2011. It h.as been furth.er
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
H and vegetables for supplying of these goods to Gauhati and
MD.
.
MURTAZA & ORS. v. STATE
. '
OF ASSAM & ORS. 759
elsewhere should be at the outskirts or outside the city limits · A
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 8
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 C
resulting in traffic congestion, air and noise pollution etc., apart
from posing health 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.
D
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 E
Colony Development Committee vs. State of Orissa AIR 2005
,,SC 1 (vide para 22) this Court observed :
"The privat~ interest stands subordinated to the public
good".
F
8. Similarly, in Sa/es 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". G
9. It is true that right to do business is a fundamental right
guaranteed under Article 19(1)(9) of the Constitution, bultflis
right is subject to reasonable restrictions under Article 19(6).
10. It may be mentioned that to test the reasonability of a H
760 SUPREME COURT REPORTS [2011] 10 S.C.R.
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
B 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. Shanti/al, AIR 1969
c 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.,
D 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
E · 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 related to the
adjustments necessary to solve the problems wh.ich
F 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
Kera/a, AIR 1978 SC 771; P.P. Enterprises v. Union of India,
G 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
H
MD. MURTAZA & ORS. v. STATE OF ASSAM & ORS. 761
cases, the existing wholesale markets have become the cause A
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 8
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 C
respondents to resolve a pressing problem. In matters of policy
the Courts have a limited 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. D
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 E
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. F
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 G
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
H ,
762 SUPREME COURT REPORTS [2011] 10 S.C.R.
A means of social control and Regulation, 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
B 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
debilitate~ popular Democratic Government. Most laws
,, .dealing with social and economic problems are matters
c 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
fi~t. Such, an assertion Qf 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."
E
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,
F 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
Physical Sciences, depends on "a process of trial and error''
and Courts must not interfere with necessary experiments.
G
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."
H
MD. MURTAZA & ORS. v. STATE OF ASSAM & ORS. 763
19. On the facts of the case, we are of the opinion that the A
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 8
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 C
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 D
shall fotm a rational p1ar1 for allotrnent of the existing WtioleSaie
·markets inside the Gauhaft city to the new wholesale market
· (whicrr win be constructed, if has not already been consfrucfed}.
21. All wholesellers Inside Gauhati city shall be allowed to . E
apply for allotment for adeq'iiafe land for tne whotesaie rriarkef
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 F
today.
22. With the observations made above, the appeals stand
disposed of. No costs.
N.J. . Appeals disposed of. G·
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