D. L. MEHTA, J. - (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. Mr. Hanuman Choudhary relies upon the doctrine of rule of law propounded by dice and submits that the rule of law is that no one can be allowed to occupy the streets which may lead to the inconvenience of the public. He further submits that the administrative actions may be within the domain of judicial review, but the government actions cannot be within the domain of judicial review and this order of the Municipality does not fall within the doman of administrative action but falls within the domain of government action. Mr. Choudhary tried to emphasize the continental comparative law while distinguishing the word administrative action and Government action. It is not necessary for me to determine the scope of judicial review in the instant case, though, there may be a scope of discussion and interpretation of the word 'administrative action' and 'government action. ' In the instant case, I agree with the view of Mr. Karnani to this extent that street trading is a fundamental right and every citizen has a right of street trading within the four corners of Article 19 Cl. (6 ). Mr. Choudhary appearing on behalf of the non-petitioners tries to define the word 'street trading' but the 'street trading' is only limited to the moving Thelas and other ancillary acts sitting without a roof for some time on a corner of the street to make the necessities of the consumer public available to them at their home. In the instant case, we are dealing with the case of Thadis Semi Permanently placed on the streets. Mr. Choudhary has invited my attention to some provisions of the Rajasthan Municipalities Act, 1959, particularly Sections 163,165,191,192,193 and 198. Mr. Choudhary submits that under section 163 the Board may by order in writing temporarily close any street to traffic for repair or in order to carry out any work connected with the drainage, water supply or for any of the purposes of this Act. Mr. Choudhary emphasized the word for any purposes of this Act, as used in section 163 of the Rajasthan Municipal Act, 1959, and submits that the word 'any purpose of this Act' is so wide enough that to regulate the traffic the street can be closed and thereby, by implication, the trading on the street, particularly, by Thadi holders who have permanently placed it, can be stopped totally as the word 'regulate' may be interpreted to include total prohibition. Mr. Choudhary further submits that under section 165, Municipality will have to prescribe a line on either side or both the sides of the public street within the Municipality a. 05. from time to time, prescribe a fresh line in substitution of any line so prescribed. Mr. Choudhary emphasised that once the line is prescribed or the prescribed line is amended or substituted naturally, there cannot be any permanent structure within the prescribed line and, thereby, he distinguishes the judgement of the Hon'ble Supreme Court reported in (1990 (U. C.) 187 ). Mr. Choudhary submits that the Hon'ble Supreme Court was Considering the provisions of Section 427 and 428 of the Act in particular. He further submits that in the case of Bombay Hawkers' Union and others V. Bombay Municipal Corporation (1 ). The Court has directed the Municipalities and the State Governments to prepare the scheme to regulate hawking business by creating hawking zones and non hawking zones. He submits that once hawking or non-hawking zones are created naturally the Thadis which are lying within the non-hawking zones will have to be removed to any other place as they will be violative of the scheme of preparing the hawking and non hawking zones. Mr. Choudhary thus, submits that it maybe necessary and in the interest of justice as well as to implement the principles laid down in the Bombay case that the Thadis of the plaintiffs may have to be shifted to any other place if not removed. Mr, Choudhary has also invited my attention to the provisions of section 191 of the Municipal Act. He submits that the Municipality has a power to grant licence and the power is there also to revoke the licence under section 193 of the Rajasthan Municipalities Act of 1959. He submits that the revocation order has been passed by the Municipality in exercise of the powers conferred under section 193 of the Act of 1959, as such, the order passed by the Municipality is a legal order passed within its own jurisdiction and the Court should not interfere in the instant case by putting an impediment in preparing the regular line and also in preparing the hawking zones and non hawking zones. Mr. Karnani appearing on behalf of the petitioners submits that any action can be taken by the Municipality which may fall within the purview of legal action. There is a thin line of distinction between the rule of law and legal action. As far as the argument of Mr. Choudhary relating to the jurisdiction of Revenue which is based on the study of comparative continental law, may have some relevance in other cases. In the instant case, the action taken by the Municipality falls within the purview of administrative action and not within the purview of Government action. It is true that in continental country where the doctrine of rule of law and the doctrine of DROIT have been distinguished, but the same cannot be applied in the instant case and I am of the view that the action of the Municipality falls within the purview of administrative action and I cannot agree with Mr. Choadhary that it falls within the purview of Government action.
(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. The grant of licence for the purpose of livelihood to the petitioners which is continuing for the last 30 years, ceases to be an ordinary action of the Government, but, now stands on the pedestal of a fundamental action of the government. The fundamental action of the Government cannot be and should not be ordinarily reviewed or revoked in such case. There may be some acceptions to this. The right to livelihood is a question which needs a determination. It will not be out of place here to mention that the Municipalities and the Government cannot be allowed to exercise the discretionary powers in an unbridled and arbitrary manner. The law empowers them to revoke the licence. The law also empowers them to regulate the line of the street and, for the purpose of enforcement of law and particularly the provisions of Section 165 and 193 it is necessary for the Municipality to see that hawking and non hawking zones are created within the municipal area. The Municipality cannot take an action without creating hawking zone or non-hawking zone and ask a person, who is trading for the last 30 years at a particular place to discontinue his business. It will amount to depriving a person of livelihood and may fall within the infringement of Article 21 of the Constitution of India as it is a revocation of the fundamental action, which the Municipality cannot take except under the due process of law provided under clause (6) of Article 19 of the Constitution. In the result, the revision petition is accepted. The order of the trial court as well as the appellate Court is set aside. The appellate court is directed to reconsider the application of the present petitioners afresh. The Municipality is further directed to prescribe a line on either side or both the sides of the public street in dispute and may take into consideration that in prescribing of such line if it is necessary to widen the public street it can do so and prescribe new regular line on both the sides of the street by causing minimum loss to the persons as far as practicable. However, the widening of the road may be necessary for the public convenience. ;