SHYAM Vs. COMMISSIONER OF POLICE

JUDGEMENT

(1.) A right to life is more precious than a right to trade or to carry on ones business and in case of conflict between the two, the former must prevail over the latter. The petitioners in this writ petition challenge the order of the Commissioner of Police dated 22-7-1988 issued under section 33(1)(b) and (c) of the Bombay Police Act, 1951 (for short "the Act") regulating the entry of all kinds of heavy vehicles in the Nagpur city during certain hours. We had called upon the State to file its submissions. According to the written submissions filed on behalf of the State the necessity for issuing the impugned order arose looking to the growing incidence of accidents in the Nagpur city, the victims particularly being the school going children. A chart is given in para 8 of the written submissions giving the number of accidents which took place in Nagpur City by local trucks as well as outside trucks from 1985 onwards. A comparative chart is also given in para 8 to show that the growing incidence of accidents in the Nagpur city is curbed and is reduced after the impugned order regulating the traffic hours of the outside trucks was issued by the respondent No. 1.

(2.) It is contended on behalf of the petitioners that the impugned order issued under section 33(1)(b), and (c) amounts to an unreasonable restriction upon the fundamental right of the petitioners guaranteed under Article 19(1)(g) of the Constitution of India, and, therefore, the said order is not saved by Article 19(6) which permits the State to impose reasonable restrictions upon the fundamental right under Article 19(1)(g) in the interest of general public. The other contention raised on behalf of the petitioners is that sections 33(1)(b) & (c) are ultra vires of the Constitution because no guidelines are laid down under Clauses (b) and (c) of section 33(a) of the Act for the exercise of the power conferred there under upon the Commissioner. The above contentions are controverted on behalf of the respondents by the learned Government Pleader appearing for them.

(3.) In support of his submission that the impugned order issued by the Commissioner of Police constitutes an unreasonable restriction upon the fundamental right of the petitioners under Article 19(1)(g) and in fact totally prohibits the exercise of such fundamental rights by them the learned Counsel for the petitioners has relied upon the following decisions :