PANCHANAND CHOUDHARY Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard learned counsel for the parties. The petitioner has been allotted Sand Ghat in the District of Godda on the basis of NIT dated 25.5.2011 whereunder an agreement was also entered on 1.9.2011.

(2.) It is submitted on behalf of the petitioner that on the date of bidding dated 14.6.2011 by a general notice, conditions were imposed by the order of Deputy Commissioner, Godda by an executive order which is not in accordance with law as framed by legislature, whereunder the present petitioner like other settlee have been prevented to transport the sand anywhere outside the district of Godda. The petitioner is being aggrieved by the said notice, which is under challenge in the present writ petition.

(3.) The petitioner is also aggrieved by the notice at Annexure-6 by which the settlee like the petitioner was directed not to resort to use of machine in lifting and loading of sand from the Sand Ghats for protecting the interest of the local labourers. Learned counsel for the petitioner submits that the stand taken by the respondent is illegal as they cannot change the terms and conditions of the NIT in which petitioner willingly and consciously participated having proper knowledge, which is not tenable in law. The terms and conditions which are subsequently introduced are itself violative of Article 14 of the Constitution of India as also constitutional right guaranteed under Article 301 read with 304B. It is submitted that such conditions cannot be imposed, which is discriminatory in nature and does not have mandate of any law either. It is submitted that Article 301 of the Constitution permits free flow of trade, commerce and intercourse throughout the territory of India and reasonable restriction can only be imposed by making law under Article 304B by the Legislature of a State and with the prior assent of the President of India. Learned counsel has relied upon the judgment in the case of Basheshar Nath vs. Commissioner of Income Tax, Delhi & Rajasthan & Anr., 1959 AIR(SC) 149, on the question of waiver of fundamental rights in which Hon'ble Supreme Court has held that fundamental rights guaranteed under Article 14 of the Constitution, of India cannot be waived. On the similar ground he also relied upon the judgment in the case of Olga Tellis & Ors. vs. Bombay Municipal Corporation & Ors., 1985 3 SCC 545. Learned counsel for the petitioner has relied upon the judgments rendered in the case of State of Tamil Nadu & Ors. vs. M/s. Sanjeetha Trading Co. & Ors., 1993 1 SCC 236, para-18 thereof to submits that such impugned action is in teeth of the constitutional provisions contained under Articles 301 and 304B of the Constitution of India.