1 S.B.CIVIL WRIT PETITION NO.3232/2006 Teja Ram & Anr. v. State of Rajasthan & Ors. Date of Order :: 6th August, 2007 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. D.K.Gaur, for the petitioners. Mr. B.L.Tiwari, Dy.Govt.Advocate. Mr. Yashwant Mehta, for the respondents. .... According to the petitioners the District Administration of District Sirohi and City Administrative Authorities of Town Mount Abu are not permitting them to work as “Hotel Canvassers”, therefore, by this petition for writ a direction is sought to restrain the respondents from interfering with lawful working of the petitioners as “Hotel Canvassers”. The Hill Station of Mount Abu is famous for its scenic beauty and also for salubrious environment. Being only Hill Station of Rajasthan and nearby State of Gujarat, the town is also having huge influx of tourists and good number of people earn their bread at Mount Abu also by working as Hotel Canvassers. On receiving certain complaints, the District Administration of Sirohi and City Administrative authorities of Mount Abu without passing any order in 2 writing stopped working of Hotel Canvassers. The petitioners, who were working as Hotel Canvassers have given challenge to the act of the respondents being in violation of Article 19(1)(g) of the Constitution of India that ensures all citizens of the country a fundamental right to practice any profession or to carry any occupation, trade or business. The stand of the respondents in reply to the writ petition is that the petitioners and certain other persons in the name of Hotel Canvassers were working as agents for various hotels and conduct of these persons led to various untoward situation affecting law and order and that caused immense injury to the peace and tranquility of the town, thus, a conscious decision was taken to stop working of the Hotel Canvassers and that was done within the permissible limits given in Article 19(6) of the Constitution of India. Heard counsel for the parties. At the threshold it is pertinent to note that counsel appearing for various respondents failed to point out any law restricting or regulating working of “Hotel Canvassers” who are nothing but agents of different hotels hired to convince the tourists/customers to avail accommodation in a specific hotel. 3 The sole emphasis of the respondents is that unruly conduct of the Hotel Canvassers resulted into law and order problem causing injury to the peace of town, therefore, restriction impugned was imposed. Article 19(1)(g) of the Constitution of India ensures a valuable fundamental right to every citizen of India to practice any profession subject to reasonable restrictions given in Article 19(6) of the Constitution and genesis of it can well be traced in universal declaration of human rights. Article 23 of which provides for right to work and have free choice of employment to every human being. No doubt that by reasonable restrictions the State can regulate the fundamental as well as human right referred above but for that purpose powers have to be exercised within the sphere of clause (6) of Article 19 of the Constitution of India, that reads as follows:- “Art.19(6)Nothing in sub-clause(g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,-- 4 (i)the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii)the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.” The fundamental rights enshrined under Article 19(1) of the Constitution of India in view of clause (6) referred above are not absolute or uncontrolled but subject to reasonable restrictions to avoid anarchy and disorder. The possession of enjoyment of all rights are subject to such reasonable conditions as may be deemed to governing authority of the country to be essential to the safety, health, peace, general order and moral of the community. Ordinarily, every man has the liberty to order his life as he pleases to say where he will to go, where he will to follow any trade, occupation or calling at his pleasure and to do anything which can lawfully do without let or hindrance by any other person. On the other hand, for protection of these liberties the society must be adequately equipped with certain powers to regulate the liberty given. By clause (6) of Article 19, the framers of Constitution desired to strike a balance between individual liberty 5 and social control while declaring the rights of the people. The balance between the individual liberty and social control requires to be ensured in public welfare and general morality by valid and reasonable conditions and those conditions must be imposed by law and not on basis of whims or fancy. The fundamental right enshrined by Article 19(1)(g) of the Constitution of India cannot be detached from a citizen of India on any ground outside the relevant provisions of clause (6) of Article 19. In the instant matter, it is not the case of the respondents that the work or profession of the Hotel Canvassers is against the interest of general public or i.e. in violation of principles of general morality but it is conduct of the Hotel Canvassers that caused injury to law and order and that resulted into ban on profession. Such conduct may be an action of individual/individuals/a group of individuals, but it cannot be generalised with a profession. The State is having ample power to regulate such conduct by providing adequate guidelines. The State instead of taking appropriate measures of regulating profession of Hotel Canvassers took regressive, retrograde and ridiculous move by banning the profession and i.e. in absolute violation of Article 19 of the Constitution of India. It is all the more ridiculous that such an action is taken for the sake of maintaining “Law and Order”. If the problem is law and order, then the 6 appropriate course before the respondent authorities was to book the culprits then to victimise the fundamental and human rights of a citizen. For the reasons given above, I am is of the considered opinion that the ban put by the respondents on working of the petitioners as Hotel Canvassers offends fundamental right of the petitioners to practice any profession or to carry any occupation as enshrined by Article 19(1)(g) of the Constitution of India, as such the same is illegal. An emphasis is also given by counsel for the respondents that this Court by an order dated 14.11.2006 has already dismissed a petition for writ of similar nature i.e. SBCivil Writ Petition No.2350/2006, Abu Parvat Hotel Workers Union, Mount Abu v. State of Rajasthan & Ors., therefore, the instant petition for writ also deserves to be dismissed in the same terms. I have perused the order passed by this Court in the writ petition referred above that reads as follows:- “Petitioner will submit his grievance before the Collector Sirohi. In this view petition dismissed.” 7 The writ petition aforesaid was dismissed by the Court without entering into merits of the case leaving it open for the petitioner to submit a representation to the Collector, Sirohi for redressal of the grievance. The controversy involved in the petition for writ was not at all adjudicated by the Court on merits, thus, dismissal of the writ petition bearing No.2350/2006 does not bar this Court to adjudicate the instant petition for writ on merits. In view of the discussion made above, this petition for writ deserves acceptance and, therefore, the same is allowed. The ban imposed by the respondents on working of the petitioners as Hotel Canvassers at Mount Abu is declared illegal. It is open for the respondents to regulate working of Hotel Canvassers at Mount Abu by providing reasonable guidelines and restrictions within the sphere of clause (6) of Article 19 of the Constitution of India. No order to costs. ( GOVIND MATHUR ),J. Kkm/ps.