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Fundamental Right To Carry On Trade Under Article 19(1)(G) Can Reasonably Be Restricted If There Is Threat To Public At Large: Telangana High Court

Jagriti Sanghi
30 Jan 2022 8:45 AM GMT
Fundamental Right To Carry On Trade Under Article 19(1)(G) Can Reasonably Be Restricted If There Is Threat To Public At Large: Telangana High Court
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The Telangana High Court recently ruled that executive instructions with check on ground realities advance the purpose of statute and act as a guiding factor for effective implementation. Furthermore, reasonable restrictions can be imposed by the State Government to protect life of a common man and it is not an infringement of a person's constitutional right to carry on trade under...

The Telangana High Court recently ruled that executive instructions with check on ground realities advance the purpose of statute and act as a guiding factor for effective implementation. Furthermore, reasonable restrictions can be imposed by the State Government to protect life of a common man and it is not an infringement of a person's constitutional right to carry on trade under Article 19(1)(g).

The facts of the case are that the petitioner has filed a writ aggrieved by the order passed by the Commissioner of Police, Hyderabad refusing to grant 'No Objection Certificate' for establishment of Auto LPG Dispensing Unit. The Petitioner's submission is that as per 'Static and Mobile Pressure Vessels (Unfired) Rules, 2016', license has been granted to him to operate Auto LPG Dispensing Unit. The petitioner contended that under Rule 47 of SMPV(U) Rules, Commissioner of Police does not have any discretion to reject the application for grant of NOC.

The request to grant NOC was rejected as the establishment of Auto LPG Dispensing Unit near a traffic junction is not permissible as per a Circular issued by the Government of Andhra Pradesh (Police Department) in 2006. It has issued executive instructions for installation of Petrol/Diesel/LPG outlets, keeping in view various factors, including the population density of the location.

The Telangana High Court observed that there is no conflict between the statutory provisions and the executive instructions issued by the State Government. There is no similar provision in respect of distance from traffic junction, minimum road width, minimum and maximum opening requirement (entry and exit) and as no such provision finds place under the Explosives Act or SMPV(U) Rules, the question of conflict does not arise. Further, the ground realities can be looked into only by Commissioner of Police in respect of location.

Moreover, the Court held that there is no restriction upon appellant/petitioner's fundamental right to carry on trade or business as he can very well apply for grant of NOC for some other location. It is a reasonable restriction to protect the interest of public at large.

"In the considered opinion of this Court, reasonable restrictions can certainly be imposed by the State Government and in the present case, the appellant/ petitioner wants to endanger the life of a common man by establishing a retail outset close to a traffic junction, which is impermissible in the light of the executive instructions dated 06.07.2006."

In light of the aforementioned observations, the Court dismissed the writ appeal with no order as to costs.

Case Title: Mohamed Abdul Nayeem Zakee v. The State of Telengana

Citation: 2022 LiveLaw (Tel) 8

Click Here To Read/Download Judgment



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