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Judgment
Meenakshi Madan Rai, J.
The Petitioners, crying foul, are before this Court exhorting that the Respondents No.3, 4 and 5 ought not to be allotted stalls in the ground floor of
the “Non-Veg.†building for the purpose of selling Fish, dressed Chicken and Mutton as it would sound the death knell for similar business being
run by the Petitioners on the first floor. It is reasoned that the ground floor being easily accessible to customers would deter them from taking the walk
up to the first floor when similar goods are available at a convenient location at the same price. It is also the averment of the Petitioners that the stalls
now allotted to the said Respondents had infact been earmarked for construction of toilets for use of the vendors, workers and the customers of the
said building but has instead been allotted to the Respondents without adherence of the tender process and turning a blind eye to the hygiene conditions
in the building.
The facts leading to the instant Petition are summarised hereinbelow. The Petitioners are local vendors in the business of selling dressed Chicken,
Mutton and Fish from their stalls in the first floor of a building known as the “Non-Veg.†building at “Khanchanjunga Shopping Complexâ€
since the year 2006. It is asserted that they have been in the business since the last 60 years viz.; when the Old Lal Market, Gangtok, was functioning
from tin-sheds. Subsequently the Khanchanjunga Shopping Complex was constructed with structures known as the “Veg.†and “Non-Veg.â€
buildings. Twenty-seven stalls each in the ground and first floor of the “Non-Veg.†building are allotted for the business of selling meat, inasmuch
as live and dressed Chicken, Mutton and Fish are sold on the first floor, known as the “Fish Marketâ€, while Beef, Buffen and Pork are sold on the
ground floor. The business is the means of livelihood of the Petitioners with which they provide for their families. That one hundred and eighty people
including the stall owners work in the said stalls sans provision for toilets since the year 2006, resulting in unhygienic conditions including foul smell
emanating in the vicinity of the complex consequent to the outside area being utilised by people to ease themselves. Vacant space available on the
ground floor adjacent to the staircase leading to the shops of the Petitioners was utilised temporarily by them for disposing garbage. The Petitioners
had requested for construction of toilets in the said vacant space towards which a sum of Rs.7,32,600/- (Rupees seven lakhs, thirty two thousand and
six hundred) only, was approved by Respondent No.1 but construction was not initiated despite assurances by the said Respondent. In April 2016, the
much awaited construction commenced and the Petitioners were informed that this would be utilised as toilets while a portion thereof would be utilised
for garbage disposal. Upon completion in January 2017, the stalls were instead allotted to the Respondents No.3, 4 and 5 for running meat shops by
arbitrary selection, bypassing the tender or selection process.
In the said circumstances, the prayers enumerated in the Petition are as follows;
“(i) A Rule upon the respondent nos.1 and 2 and each of them to show-cause as to why orders/agreements/ allotment of shops in favour of
respondent nos.3 to 5 and trade licence of such shops in their respective names be not cancelled and upon hearing the parties to make the Rule
absolute;
(ii) A writ or order or direction or declaration that the space on the ground floor adjacent to staircase leading to first floor which place was used by the
petitioners for dumping garbage shall not be allotted to the respondent nos.3 to 5 or to any other persons to use it as shop(s). In the event allotment has
already been made to respondent nos. 3 to 5 then all such allotments including agreements if any be cancelled;
(iii) A writ or order or direction or declaration against the respondent nos.1 and 2 that the newly constructed concrete structure shall be converted into
public toilet by dismantling inner structures and toilets and garbage room be constructed in the said newly constructed structure for user by public and
petitioners;
(iv) A writ or order or direction or declaration that the allotment of the shops in the names of respondent nos.3 to 5 issued by UD&HD stands
cancelled and the same space shall be converted into public toilet and garbage room;
(v) A writ or order or direction or declaration that the licence issued to respondent nos.3 to 5 by Gangtok Municipal corporation/respondent no.2 for
running meat shops in the newly constructed rooms on the ground floor similar to those of the petitioners shall stand cancelled and the said stalls/shops
be converted into public toilet and for garbage room;
(vi) A writ or order or direction or declaration that the space and the construction on the ground floor attached to the staircase leading to first floor
shall not be allotted to anyone in future and shall stand reserved for public toilet and garbage bin;
(vii) A writ or order or direction or declaration that no shop(s) of any item be allowed to run in the newly constructed rooms in the ground floor of the
Non-Veg. building attached to the staircase leading to the first floor;
(viii) Costs of the proceedings;
(ix) Any other writ/writs, order, direction as this Honâ€ble Court may deem fit and proper in the interest of justice.â€
The State-Respondent No.1 through the Additional Secretary, Urban Development and Housing Department (UD&HD), by filing Counter-
Affidavit would aver that the Respondent Department in 2016 on receipt of request for allotment of stalls in the Non-Veg. building could identify no
vacant space in the Fish Market which already had thirty meat stalls, but found space in the ground floor and accordingly allotted it to the Respondents
No.3, 4 and 5. That, the grievances of the Petitioners are not genuine and bona fide as by filing the Writ Petition they seek to restrain others from
entering into the business which they intend to monopolise. In any event, construction of toilets and garbage disposal in the vacant space now allotted
to the Respondents No.3, 4 and 5 was discarded in view of the hygiene conditions, as the utilities would be adjacent to the Fish Market. Besides, the
Department has constructed toilets for the public on the ground floor of an adjacent Hotel which has compartments for ladies and gents as also
bathing space at a distance of about 40-50 metres away from the Non-Veg. building making it easily accessible. A Central Garbage Collection area
has also been provided near the Non-Veg. building. The Petition being motivated with the purpose of discouraging competitors, be dismissed.
The Respondent No.2 in its Counter-Affidavit through the Municipal Commissioner denied the allegations made by the Petitioners and submitted
that the preamble of the Sikkim Municipalities Act, 2007, in clear terms specifies that municipal governance is to be in conformity with the provisions
of the Constitution of India and based on the principles inter alia of participation to improve the quality of life of the urban dwellers of Sikkim. That,
any individual or organisation that fulfils the criteria as laid down for issuance of a Trade Licence will and must be issued a Trade Licence. The
Petitioners having fulfilled the criteria were issued the Trade Licence by the Respondent No.2.
The Respondents No.3 to 5 filed a joint Counter-Affidavit admitting that presently they are running a business of fish and chicken in the space
allotted to them below the staircase leading to the Fish Market of the Non-Veg. building with no violation of any law in such allotment. Pursuant to the
allotment they have been issued Trade Licences. The Writ Petition is thus liable to be dismissed on the ground that the Petitioner has no locus standi to
canvass the legality or correctness of the action taken by the Respondent No.1 in allotting premises to the Respondents as the Petitioners‟ case is not
that they had sought for allotment of the premises now allotted to the Respondents. The prayer of the Petitioners is in violation of the fundamental
rights guaranteed to the Respondents under Article 19(1)(g) of the Constitution of India. That, the grounds set out by the Petitioners are not
sustainable in the eyes of law and hence the Writ Petition is liable to be dismissed outright.
In Rejoinder, the Petitioners would dispute the contention of the Respondent No.1 that the toilets cannot be allowed in the Non-Vegetarian Complex
due to hygiene considerations as toilets exists on each floor of the adjacent Veg. building. The averment that an accessible toilet has been constructed
nearby is erroneous, since it is at a distance of 300 feet away from the building where the Petitioners‟ stalls are located. Moreover, when the space
was allotted to the Respondents No.3, 4 and 5 exclusively for the purpose of selling “dry items†it is not conceivable as to how the Trade Licence
was granted for selling meat.
Mr. A. Moulik, Learned Senior Counsel for the Petitioners while drawing the attention of this Court to the averments made in the Petition submitted
that Representations were made to the Chief Minister in 2016 and 2017 and to the Secretary, UD&HD in 2016, objecting to the allotment of stalls to
the Respondents No.3, 4 and 5 inter alia on the grounds that allotment of such shops for the same business on the ground floor would adversely affect
the Petitioners†business. The Chief Minister endorsed the representation to the concerned Department to examine the matter in public interest and
the Department in sum and substance agreed to incorporate the “Swachh Bharat Abhiyan†in the Non-Veg. building which however remained
unimplemented. Meanwhile, three rooms constructed on the ground floor came to be allotted to the Respondents No.3, 4 and 5 for selling dry items,
however, contrary to the terms of allotment Trade Licence was issued for sale of meat. That, even if the Licence is for sale of dry items the
Petitioners remain aggrieved as the space had been identified for use as toilets. It is suggested that if the Government Respondents seek to
accommodate the Private Respondents, allotment of some stalls can be made on the roof of the building above the stalls of the Petitioners thereby
causing no negative effect on the Petitioners†business.
That, the policy adopted by the State-Respondents is against the principles of fair play, justice and equity and the right to life and means of livelihood of
the Petitioners have been jeopardised at the whims and caprice of the Respondents. Relying on the decision of 1 Post, Vaikam and Others, etc. vs.
Theyyam Joseph, etc. AIR 1996 SC 1271, Learned Senior Counsel would submit that welfare measures are required to be taken by the State and
directive principles of the State Policy enjoin upon the State Government duties under Part IV of the Constitution of India. Hence, being a welfare
State it is the responsibility of the Respondent No.1 to provide proper facilities for basic amenities such as toilets. Attention of this Court was also
invited to the ratio in A. P. Pollution Control Board II vs. Prof. M. V. Nayudu (RETD.) and Others (2001) 2 SCC 62 and it was urged that in the said
matter it was found that drinking water is of primary importance in any country and India was a party to the Resolution of the UNO passed during the
United Nations Water conference in 1977, wherein it was held that as drinking water is fundamental to life a duty is cast on the State under Article 21
to provide clean drinking water to its citizens. Similarly, in the matter at hand it is clear that hygienic and clean surroundings are fundamental to life and
the State is responsible under Article 21 to provide such surroundings and to ensure that there is no environmental pollution in view of the large
number of persons attending to natures call outside the Non-Veg. building. That, in represented by K. K. Ramesh vs. State of Tamil Nadu and
Another (2017) 6 SCC 734 the Supreme Court while considering the deaths of farmers in Tamil Nadu would observe that the State stands on the
position of a loco parentis to the citizens and it was obligatory on the part of the State to express concern and sensitivity to do the needful.
The same attitude needs to be adopted by the State-Respondents in the instant matter towards the Petitioners. Further, Senior Counsel would also rely
on Danial Latifi and Another vs. Union of India(2001) 7 SCC 740 and contend that the concept of right to life and liberty guaranteed under Article 21
of the Constitution of India would include the right to live with dignity which the Petitioners have been deprived of as the absence of toilets in the Non-
Veg. building causes them immense inconvenience. That, allotment of three stalls in the ground floor where the toilets ought to have been constructed
is in abrogation of the fundamental rights of the Petitioners to a clean, healthy and hygienic environment. Invoking the doctrine of legitimate
expectation and Promissory Estoppel Learned Senior Counsel would canvass that funds for construction of toilets had been sanctioned and the plan
approved, hence after the construction the State-Respondent ought not to have altered the plan of utilisation of the space as toilets. That apart, the
Private Respondents failed to obtain any permission from the Animal Husbandry Department before the Respondent No.2 issued Licences to them for
selling Fish and meat, therefore the Licences have been obtained contrary to established practice. Hence, the prayers in the Petition be granted.
The contra arguments of Learned Additional Advocate General were that the Petitioners are not entitled to make unreasonable demands to prevent
the Private Respondents from carrying on trade for their livelihood as they are also citizens of the country and equally entitled to the right to livelihood
as manifest in Article 19(1)(g) and Article 21 of the Constitution of India. The Petitioners in the garb of objecting to non-construction of the toilets are
infact urging that allotment of stalls ought not to be made to the Private Respondents for selling meat. This would tantamount to depriving the Private
Respondents of their right to livelihood when no Statute debars them from running a business in the country. That, Respondent No.1 is infact the
allotting authority and the Respondent No.2 is the authority who issues Licences. There is no restriction on the powers of the Respondent No.2 to
issue Licence on assessment of the requirements of the Petitioners who are entitled to make a living. There is no illegality on the issuance of the
Licence and the Petition reflects the utter selfishness of the Petitioners in depriving the Respondents No.3, 4 and 5 to earn income, on this count
Learned Additional Advocate General would rely on Mithilesh Garg and Others vs. Union of India and Others (1992) 1 SCC 168.
That the ratio clearly lays down that Article 19(1)(g) of the Constitution guarantees to all citizens the right to practice any profession or to carry on
any occupation, trade or business subject to reasonable restrictions imposed by the State under Article 19(6) of the Constitution. Hence, the Petitioners
herein being private individuals cannot seek to impose any restrictions on the issuance of Licence or the carrying on of the business or any other
restriction which the State Legislature has opted not to as it is only the State which can impose reasonable restrictions within the ambit of Article 19(6)
of the Constitution. That the Petitioners have no locus standi under Article 226 of the Constitution to challenge the issuance of Licence since no right
vested on the Petitioners have been infringed. That, in Nataraja Agencies vs. The Secretary, Ministry of Petroleum and Natural Gas, Government of
India, New Delhi and Others 2005 (1) Current Tamil Nadu Cases (CTC) 394 : MANU/TN/1588/2004 Bench of the Madras High Court has
categorically stated that a rival businessman cannot file a Writ Petition challenging the setting up of a similar unit by another businessman on the
ground that establishing a rival business close to his business place would adversely affect business interest, even if the setting up of the new unit is in
violation of law. That, merely because the Petitioners apprehend a shift of allegiance of their customers to rival retail dealers does not mean that public
interest will suffer, to the contrary it will benefit the consumers because when there is competition, businessmen are compelled to provide better
quality products at reasonable rates. Therefore, the Petition deserves a dismissal.
Learned Counsel for the Respondents No.2 and 3, 4 and 5 would submit that they endorse the arguments made by Learned Additional Advocate
General. Learned Counsel for Respondent No.2 would add that there are no Rules whatsoever that require the Respondent No.2 to obtain permission
from the Animal Husbandry Department for issuance of Licence for sale of meat and fish. That the Respondent No.2 is empowered to issue such
Licences after due assessment as per its own Rules. Besides, the Petitioner has failed to show by way of any documentary evidence that either such
Rules exists or that has such practice been followed.
The submissions put forth by Learned Counsel were heard at length. I have carefully perused and considered the pleadings, the entire documents
appended, as well as the Judgments cited at the Bar.
The question that arises for determination is whether the Respondents No.3, 4 and 5 can be restrained by the Petitioners from carrying on the
business of selling meat in the allotted space in view of the Petitioners‟ assertion that the State-Respondents are estopped from allotting stalls and
Licence to the Private Respondents, having promised construction of toilets therein in addition to which such allotment and sale thereof would
adversely affect their business.
Article 19 of the Constitution lists a group of rights from Clause (a) to Clause (g) which are recognised as fundamental rights. Article 19(1)(g)
extends to every citizen the right to practice any profession or to carry on any occupation trade or business. The rights enumerated under Article 19
are recognised as natural rights and although they may have different underlying philosophies, the consistent common thread however is that the State
is empowered to impose restrictions to achieve certain objects. In other words, although Article 19 of the Constitution assures citizens of the rights
enumerated therein the rights cannot be absolute, uncontrolled or wholly free from restraint, they are indeed subject to reasonable restrictions as may
be deemed necessary by the Government as essential for safety, health, peace, decency and order of the community. The Constitution thus seeks to
strike a balance between individual liberty and social control. If the restriction imposed is greater than permitted under Clause (2) to Clause (6) of
Article 19 of the Constitution the Courts will necessarily declare the same as unconstitutional, as imposition of restrictions limit a person‟s enjoyment
to the rights guaranteed. It may be emphasised that violation of the fundamental rights of one individual by another, without State support is not
envisaged in the ambit of Article 19. In this context, we may looked into the observation of the Hon‟ble Supreme Court in Hans Raj Kehar and Others
vs. The State of U.P. and Others AIR 1975 SC 389 where it was held that;
“8. The contention that the impugned notification is violative of the rights of the appellants under Article 19(1)(f) or (g) of the Constitution is equally
devoid of force. There is nothing in the notification which prevents the appellants from acquiring, holding and disposing of their property or prevents
them from practising any profession or from carrying on any occupation, trade or business. The fact that some others have also been enabled to obtain
permits for running buses cannot constitute a violation of the appellants' rights under the above two clauses of Article 19 of the Constitution. The
above provisions are not intended to grant a kind of monopoly to a few bus operators to the exclusion of other eligible persons. No right is guaranteed
to any private party by Article 19 of the Constitution of carrying on trade and business without competition from other eligible persons. Clause (g) of
Article 19(1) gives a right to all citizens subject to Article 19(6) to practice any profession or to carry on any occupation, trade or business. It is an
enabling provision and does not confer a right on those already practising a profession or carrying on any occupation, trade or business to exclude and
debar fresh eligible entrants from practising that profession or from carrying on that occupation, trade or business. The said provision is not intended to
make any profession, business or trade the exclusive preserve of a few persons. We, therefore, find no valid basis for holding that the impugned
provisions are violative of Article 19.â€
In The Nagar Rice and Flour Mills and Others vs. N. Teekappa Gowda & Bros. and Others AIR 1971 SC 246 the Supreme Court would observe
as follows;
“9. ……………. The right to carry on business being a fundamental right under Art.19(1)(g) of the Constitution, its exercise is subject only to the
restrictions imposed by law in the interest of the general public under Article 19(6)(i).â€
In T. B. Ibrahim, Proprietor, Bus Stand, Tanjore vs. The Regional Transport Authoirty, Tanjore AIR 1953 SC 79 the Supreme Court emphasized
that reasonable restrictions can be put in place by the government and would elucidate as hereinunder;
“13. The next contention was that the order is repugnant to Art. 19(1)(g) of the Constitution, according to which all citizens must have the right to
practise any profession or to carry on any occupation, trade or business. It cannot be denied that the appellant has not been prohibited from carrying
on the business of running a bus-stand. What has been prohibited is that the bus-stand existing on the particular site being unsuitable from the point of
view of public convenience, it cannot be used for picking up or setting down passengers from that stand for out-stations journeys. But there is certainly
no prohibition for the bus-stand being used otherwise for carrying passengers from the stand into the town, and „‟vice-versa‟. The restriction
placed upon the use of the bus-stand for the purpose of picking up or setting down passengers to outward journeys cannot be considered to be an
unreasonable restriction.
It may be that the appellant by reason of the shifting of the bus-stand has been deprived of the income he used to enjoy when the bus-stand was used
for outward journeys from Tanjore, but that can be no ground for the contention that there has been an infringement of any fundamental right within
the meaning of Art. 19(1)(g) of the Constitution. There is no fundamental right in a citizen to carry on business wherever he chooses and his right
must be subject to any reasonable restriction imposed by the executive authority in the interest of public convenience. ………..â€
In Harman Singh and Others vs. Regional Transport Authority, Calcutta Region and Others AIR 1954 SC 190, it was observed that;
“8. The next contention of Mr. Choudhry that the introduction of small taxis in the streets of Calcutta will bring about a total stoppage of the
existing motor taxi cab business of large taxi owners in a commercial sense and would thus be an infringement of the fundamental right guaranteed
under Article 19(1)(g) of the Constitution is again without force. Article 19(1)(g) declares that all citizens have the right to practise any profession, to
carry on any occupation, trade or business. Nobody has denied to the appellants the rightto carry on their own occupation and to ply their taxis. This
article does not guarantee a monopoly to a particular individual or association to carry on any occupation and if other persons are also allowed the right
to carry on the same occupation and an element of competition is introduced in the business, that does not, in the absence of any bad faith on the part
of the authorities, amount to a violation of the fundamental right guaranteed under Article 19(1)(g) of the Constitution. Under the Motor Vehicles Act
it is in the discretion of the Regional Transport Authority to issue permits at different rates of tariff to different classes of vehicles plying in the streets
of Calcutta and if that power is exercised in a „bona fide‟ manner by the Regional Transport Authority for the benefit of the citizens of Calcutta,
then the mere circumstance that by grant of licence at different tariff rates to holders of different taxis and different classes of vehicles some of the
existing licence holders are affected cannot bring the case under Article 19(1)(g) of the Constitution.â€
All the decisions of the Supreme Court extracted hereinabove are indicative of the fact that every person is entitled to practice any profession or
to carry on any occupation, trade or business as provided under Article 19(1)(g) of the Constitution and no one can monopolise a business. Merely
because one individual apprehends loss of business on the entry of another person into the same business does not clothe him with powers to expect
the State to intervene and impose restrictions on the new entrant. It follows that, the exercise of a fundamental right by an individual is equal for all
thus one individual cannot infringe or deter another from exercising his exact same right, unless and until reasonable restriction as found essential by
the State are in place. The term
“reasonable restrictions†has been elucidated in a plethora of decisions of the Hon‟ble Supreme Court and connotes that the restriction imposed
on the exercise of the right must have reasonable relation to the object which the legislature seeks to achieve and ought not to be in excess thereof or
arbitrary. In M/s. Laxmi Khandsari and Others vs. State of U.P. and Others AIR 1981 SC 873 it was held that the nature of the right alleged to have
been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion
of the imposition, the prevailing condition at the time should all enter into the judicial verdict.
That having been said the sweep of Article 21 of the Constitution would necessarily have to be looked into. This Article mandates that no person
shall be deprived of his life and personal liberty except according to procedure established by law. Enjoyment of quality life by a person is the essence
of the right guaranteed under Article 21 of the Constitution, which means not merely survival or animal existence, but the right to live with human
dignity and thereby includes all issues of life which involve the making of a meaningful and complete life. Obviously these facets of the right can only
be achieved by means of a proper livelihood, thus the right to livelihood is an integral part of the right to life under Article 21 and cannot be infringed
by withholding the means of livelihood by any process whatsoever. The action of the State is to be based on reasonableness and cannot deprive the
basic human rights afforded under the Constitution. It also includes the right of a citizen to carry on business wherever he chooses or at any time
subject to ofcourse to reasonable restrictions imposed by the Executive in the interest of public convenience.
In Olga Tellis and Others vs. Bombay Municipal Corporation and Others (1985) 3 SCC 545 the Supreme Court while discussing the right to life
guaranteed by Article 21 of the Constitution and consequently the right to livelihood held as follows;
“32. As we have stated while summing up the petitioners' case, the main plank of their argument is that the right to life which is guaranteed by
Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings,
their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness
of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which
we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The
sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as,
for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the
right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means
of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life
would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content
and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure
established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what
makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have
deprived him of his life.
…………………… So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: Only a
handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it
was said by Douglas, J. in Baksey [347 US 442, 472 : 98 L Ed 829 (1954)] that the right to work is the most precious liberty that man possesses. It is
the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. “Lifeâ€, as observed by Field, J.
in Munn v. Illinois [(1877) 94 US 113] means something more than mere animal existence and the inhibition against the deprivation of life extends to
all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P. :
(1963) 2 Cri LJ 329].
………………….. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can
challenge the deprivation as offending the right to life conferred by Article 21.â€
The fulcrum of the Petitioners‟ prayer is to ensure that the Private Respondents are not allotted stalls in the Non-Veg. building as also Licence to
sell meat therefrom, inter alia on grounds that it would affect the Petitioners‟ business. Ofcourse a tangential argument has also been incorporated
that the area which was to have been converted into toilet was allotted to the Private Respondents causing inconvenience to the Petitioners herein. It
is not the case of the Petitioners that they have been restricted in any manner by the State-Respondents from carrying out their business and
occupation. It is also not the case of the Petitioners that the State- Respondents have not made efforts to provide basic facilities and convenience to
the Petitioners by constructing accessible toilets for their use be it at a distance of 40â€"50 metres not necessarily at their doorstep as envisaged. It
has been specifically averred and argued by learned Counsel for the State-Respondents that the facilities are for men and women replete with bathing
compartments and nothing contrary thereto emerges.
The doctrine of legitimate expectation is invoked when a person may have been treated in a certain way by an administrative authority although he
has no legal right in private law to receive such treatment. In Bannari Amman Sugars Ltd. vs. Commercial Tax Officer and Others(2005) 1 SCC 625
while explaining this concept the Supreme observed that the expectation may arise either from a representation or promise made by the authority,
including an implied representation or from consistent past practice. Legitimate expectation can provide sufficient interest to enable one who cannot
point to the existence of a substantive right to obtain the leave of the Court to apply for judicial review. It is generally agreed that “legitimate
expectation†gives the applicant sufficient locus standi for judicial review. The doctrine does not give scope to claim relief straightway from the
administrative authorities as no crystallized right as such is involved.
The protection of such legitimate expectation does not require the fulfillment of the expectation where an overriding public interest requires otherwise.
In other words, where a person‟s legitimate expectation is not fulfilled by taking of a particular decision, then the decision-maker is to justify the denial
of such expectation by showing some overriding public interest. In the same line, we may also look at the doctrine of Promissory Estoppel which is a
rule of equity flowing out of fairness, striking on behavior deficient in good faith. While applying this concept, the Court ought to be concerned with the
conduct of a party for determination as to whether he can be permitted to take a different stand in a subsequent proceeding. The doctrine is thus
premised on conduct of a party making a representation to the other so as to enable him to arrange his affairs in such a manner as if the said
representation would be acted upon.
In M/s. Motilal Padampat Sugar Mills Co. Ltd. vs. State of Uttar Pradesh and Others (1979) 2 SCC 409 the Supreme Court while considering this
concept also discussed the origins of the doctrine as follows;
“7. That takes us to the question whether the assurance given by Respondent 4 on behalf of the State Government that the appellant would be
exempt from Sales Tax for a period of three years from the date of commencement of production could be enforced against the State Government by
invoking the doctrine of promissory estoppel. Though the origins of the doctrine of promissory estoppel may be found in Hughes v. Metropolitan
Railway Co. [(1877) 2 AC 439 :
36 LT 932] and Birmingham and District Land Co. v. London and North-Western Rail Co. [(1888) 40 Ch D 268, 286 : 60 LT 527], authorities of old
standing decided about a century ago by the House of Lords, it was only recently in 1947 that it was rediscovered by Mr Justice Denning, as he then
was, in his celebrated judgment in Central London Property Trust Ltd. v. High Trees House Ltd. [(1956) 1 All ER 256 : 1947 KB 130] This doctrine
has been variously called “promissory estoppelâ€, “equitable estoppelâ€, “quasi estoppel†and “new estoppelâ€. It is a principle evolved
by equity to avoid injustice and though commonly named “promissory estoppelâ€, it is, as we shall presently point out, neither in the realm of
contract nor in the realm of estoppel. It is interesting to trace the evolution of this doctrine in England and to refer to some of the English decisions in
order to appreciate the true scope and ambit of the doctrine particularly because it has been the subject of considerable recent development and is
steadily expanding. The basis of this doctrine is the inter-position of equity. Equity has always, true to form, stepped in to mitigate the rigours of strict
law. The early cases did not speak of this doctrine as estoppel. They spoke of it as “raising an equityâ€. ……………..â€
Hence, the doctrine of Promissory Estoppel would be applicable in a case where the appellant would suffer a detriment by acting on a representation
made by the Government.
The documents on record do not indicate any assurance from the Government to the Petitioners for construction of toilet. It is the Petitioners who
have submitted the representations, the prayers of which did not materialize. Legitimate expectation would have arisen if assurances had been made
to the Petitioners by the Respondents No.1 and 2, nothing emanates in this context. The Petitioners already being in the trade have not acted to their
own detriment in any manner whatsoever. Moreover, as pointed out in Bannari Amman Sugars Ltd. (supra) the legitimate expectation is not required
to be fulfilled where overriding public interest is to be given priority as in the instant case where the Respondents‟ right to life and as a corollary right
to livelihood are involved. Hence, neither of the doctrines are applicable to the Petitioners in the present case.
Therefore, in the light of the matter at hand in my view it is evident that the Petitioners cannot seek to restrain the private Respondents from also
carrying on business for their livelihood and achieving their economic requirements. It is the aim and goal of the Government to enable the society to
be an egalitarian one. The Petitioners cannot put hurdles in the path of the private Respondents in the garb of inconvenience caused by non-
construction of toilets. The documents on record also indicate that infact an estimate of Rs.7,32,600/- (Rupees seven lakhs, thirty two thousand and six
hundred) only, had been placed for approval of the authorities by the Engineers concerned but was at no point of time either approved or sanctioned.
Contrary to the submissions of the Petitioners that they had made several representations to the authorities the records stand sentinel to the fact that
only two representations were made in the year 2016, i.e., on 08-04-2016 and 12-04-2016 and one in the year 2017, i.e., on 03-02-2017. The argument
that the Respondent No. 2 ought not to have issued Licenses for selling of meat apart from seeking non-allotment of stalls is in itself an incongruous
argument since the statute clothes the State Respondents with powers to make assessments and issue Licences if the requisite criteria thereof stand
fulfilled. The Petitioners cannot seek to trample on the fundamental rights of the Private Respondents by way of prayers that are indeed absurd.
In conclusion, in view of the entire foregoing discussions, the Writ Petition deserves no consideration and is accordingly dismissed.
No order as to costs.