KISHAN LAL Vs. MUNICIPAL COUNCIL

JUDGEMENT

(1.) THIS revision petition is directed against the order dated, 3rd August 1988 passed by the learned District Judge, Ajmer, dismissing the appeal filed by the plaintiff-appellant.

(2.) TO understand the controversy between the parties it is necessary to narrate some facts. Plaintiffs have come with a case that they are doing business for the last 60 years or so on the street. In the cases of four plaintiffs learned District Judge has held that they are doing business for the last 30 years or so. In cases of the remaining two plaintiffs it has been held that they are of a very recent origin. Mr. Karnani, appearing on behalf of the petitioners, submitted that street trading being a fundamental right has to be made available to the citizens subject to the provisions of Article 19 (6) of the Constitution. He submits that it is within the domain of the State to make any law imposing reasonable restrictions in the interest of the general public. However, he further submits that if the State fails to make any law or rules, the Court has ample power to pass necessary orders which may be just and proper in the facts and circumstances of the case.

(3.) I have heard the rival contentions of both the parties and have gone through the provisions of Article 21 of the Constitution. Now, it is said that right to work is being recognised as a fundamental right. Even in the absence of due recognisation by way of amendment the right to livelihood may be recognised as a fundamental right to some extent and any action taken for the furtherance of the said right has been considered as a fundamental action or fundamental law. If any action has been taken to achieve the objects laid down in Chapter IV of Constitution under any particular law it may become a fundamental law which distinguishable from any ordinary law and stands on higher pedestal than an ordinary law and may sometimes be equated with the Constitutional law. Similarly, any action taken in furtherance of the provisions of Article 21 providing the right to livelihood may fall within the purview of fundamental action which stands on a higher pedestal than an ordinary action of the State. In the instant case, out of the six plaintiffs four plaintiffs are admittedly having the Thadis for the last 30 years. There is a right to trade, there is a right to street trading and that right can be exercised by the plaintiffs within the four corners of Article 19 (6) and the Municipality cannot interfere and should not interfere when the question of livelihood of the persons is involved.