# SODAN SINGH ETC. ETC v. NEW DELHI MUNICIPAL COMMITTEE & ANR. ETC. '1 - **Citation:** [1989] 3 S.C.R. 1038 - **Court:** Supreme Court of India - **Decided:** 1989-08-30 - **Bench:** E.S. Venkataramiah, S. Natarajan, Laut Mohan Sharma, N.D. Ojha, Kuldip Singh - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sodan-singh-etc-etc-v-new-delhi-municipal-committee-anr-etc-1-10511 - **Pages:** 27 ## Headnote Constitution of India, 1950: Article 19( 1)(g)-Street trading- • An age old vocation adopted by human beings to earn living-No "'\ justification to deny citizens right to earn livelihood using public streets c for trade or business-Regulatory measures and reasonable restrictions ~ can be imposed. Delhi Municipal Corporation Act, 1957: Street trading-Necessity to provide regulatory measures-Emphasised. D Punjab Municipal Act, 1911: Street trading-Necessity to provide regulatory measures-Emphasised. The petitioners in these special leave petitions and writ petitions ~· claim the right to engage in trading business on the pavements of roads E of the city of Delhi. The special leave petitions are against the judgments of the Delhi High Court dismissing their claim. >- It is contended on behalf of the petitioners that (i) they were allowed by the respondents to transact their bnsiness by occnpying a particular area on the pavements on payment of certain charges ~· F described as Tehbazari and the refusal by the municipal authorities to permit them to continue with their trade is violative of their fundamental right guaranteed under Article 19(l)(g) of the Constitution; and (ii) the petitioners are poor people and depend on their business for their livelihood and if they are not allowed to occupy some specific places demarcated on the pavements on a permanent basis for conductG ing their business they may starve which will lead to violation of their fundamental right under Article 21 of the Constitution. -'\ The respondents, on the other hand, contend that nobody bas got a legal right to occupy exclusively a particular area on the road-pavement for pursuing a trading business and nobody can claim any fundaH mental right in this regard whatsoever. 1038 r SODAN SINGH v. N.D.M.C. 1039 Disposing of the petitions and remitting the cases to the approA priate Division Bench for final disposal in accordance with this judgment, this Court, HELD: E.S. Venkataramiah, CJ, S. Natarajan, L.M. Sharma and N.D. Ojha ,JJ.] Per L.M. Sharma, J. B (1) A member of the public is entitled to legitimate user of the road ·other than actually passing or re-passing through it, provided that he does not create an unreasonable obstruction which may inconvenience other persons having ·similar right to pass and does not C make excessive use of the road to the prejudice of the others. Liberty of an individual comes to an end where the liberty of another commences. [IOSOC, A-Bl (2) What will constitute public nuisance and what can be included · in the legitimate user can be ascertained only by taking into account all D the relevant circumstances including the size of the road, the amount of traffic and the nature of the additional use one wants to make of the public streets. This has to be judged objectively and here comes the role of public authorities. [IOSJE) (3) The right to carry on trade or business mentioned in Article E 19(l)(g) of the Constitution, on street pavements, if properly regulated, cannot be denied on the ground that the streets are meant exclusively for passing or re-passing and for no other use. Proper regulation is, however, a necessary condition as otherwise the very object of laying out roads--to facilitate traffic-may be defeated. Allowing the right to trade without appropriate control is likely to lead to unhealthy competiF tion and quarrel between traders and travelliui; public and sometimes amongst the traders themselves resulting in chaos. The right is subject to reasonable restrictions under clause (6) of Article 19. [1052C-D) ( 4) The proposition that all public streets and roads in India vest in the State but that the,,State holds them as trustee on behalf of the public and the member{of the public are entitled as beneficiaries to use them as a matter of right, and that this right is limited only by the similar rights possessed by every other citizens to use the pathways and further that the State as trustee is entitled to impose all ## Text _Characters 0–39,891 of 67,859. This is a partial read: ask again with offset=39891 for what follows._ I . .\ A SODAN SINGH ETC. ETC. v. NEW DELHI MUNICIPAL COMMITTEE & ANR. ETC. '1 AUGUST 30, 1989 /;.. \"- ,.. B [E.S. VENKATARAMIAH, CJ., S. NATARAJAN, LAUT MOHAN SHARMA, N.D. OJHA AND KULDIP SINGH, JJ.J Constitution of India, 1950: Article 19( 1)(g)-Street trading- • An age old vocation adopted by human beings to earn living-No "'\ justification to deny citizens right to earn livelihood using public streets c for trade or business-Regulatory measures and reasonable restrictions ~ can be imposed. Delhi Municipal Corporation Act, 1957: Street trading-Necessity to provide regulatory measures-Emphasised. D Punjab Municipal Act, 1911: Street trading-Necessity to provide regulatory measures-Emphasised. The petitioners in these special leave petitions and writ petitions ~· claim the right to engage in trading business on the pavements of roads E of the city of Delhi. The special leave petitions are against the judgments of the Delhi High Court dismissing their claim. >- It is contended on behalf of the petitioners that (i) they were allowed by the respondents to transact their bnsiness by occnpying a particular area on the pavements on payment of certain charges ~· F described as Tehbazari and the refusal by the municipal authorities to permit them to continue with their trade is violative of their fundamental right guaranteed under Article 19(l)(g) of the Constitution; and (ii) the petitioners are poor people and depend on their business for their livelihood and if they are not allowed to occupy some specific places demarcated on the pavements on a permanent basis for conductG ing their business they may starve which will lead to violation of their fundamental right under Article 21 of the Constitution. -'\ The respondents, on the other hand, contend that nobody bas got a legal right to occupy exclusively a particular area on the road-pavement for pursuing a trading business and nobody can claim any fundaH mental right in this regard whatsoever. 1038 r SODAN SINGH v. N.D.M.C. 1039 Disposing of the petitions and remitting the cases to the approA priate Division Bench for final disposal in accordance with this judgment, this Court, HELD: E.S. Venkataramiah, CJ, S. Natarajan, L.M. Sharma and N.D. Ojha ,JJ.] Per L.M. Sharma, J. B (1) A member of the public is entitled to legitimate user of the road ·other than actually passing or re-passing through it, provided that he does not create an unreasonable obstruction which may inconvenience other persons having ·similar right to pass and does not C make excessive use of the road to the prejudice of the others. Liberty of an individual comes to an end where the liberty of another commences. [IOSOC, A-Bl (2) What will constitute public nuisance and what can be included · in the legitimate user can be ascertained only by taking into account all D the relevant circumstances including the size of the road, the amount of traffic and the nature of the additional use one wants to make of the public streets. This has to be judged objectively and here comes the role of public authorities. [IOSJE) (3) The right to carry on trade or business mentioned in Article E 19(l)(g) of the Constitution, on street pavements, if properly regulated, cannot be denied on the ground that the streets are meant exclusively for passing or re-passing and for no other use. Proper regulation is, however, a necessary condition as otherwise the very object of laying out roads--to facilitate traffic-may be defeated. Allowing the right to trade without appropriate control is likely to lead to unhealthy competiF tion and quarrel between traders and travelliui; public and sometimes amongst the traders themselves resulting in chaos. The right is subject to reasonable restrictions under clause (6) of Article 19. [1052C-D) ( 4) The proposition that all public streets and roads in India vest in the State but that the,,State holds them as trustee on behalf of the public and the member{of the public are entitled as beneficiaries to use them as a matter of right, and that this right is limited only by the similar rights possessed by every other citizens to use the pathways and further that the State as trustee is entitled to impose all necessary limitations on the character and extent of the user, should be treated as of universal application. The provisions of the Municipal Acts should be G H 1040 SUPREME COURT REPORTS [1989] 3 S.C.R. construed in the light of the above proposition and they should receive a ~ A beneficent interpretation. [1052E-G] M.A. Pal Mohd. v. R.K. Sadarangarii, A.LR. (1985) Mad 23; C.S.S. Motor Service v. Madras State, A.LR. 1953 Mad. 279; Saghir Ahmad v. The State of U.P. & Ors., [1955] l SCR 707; Harper v. G.N. B Haden & Sons Ltd., [1933] l Ch. 298; Bombay Hawkers Union & Ors. v. Bombay Municipal Corporation & Ors., [1985] 3 SCR 528 referred to. (5) The petitioners do have the fundamental right to carry on a trade or business of their choice, but not to do so on a particular place, ,. c as circumstances are likely to change from time to time. Bnt that does not mean that the licence has to be granted on a daily basis; that 1 arrangement cannot be convenient to anybody, except in special circumstances. [1053F, 1057F] Fertilizer Corporation Kamgar Union v. Union of India, [1981] 2 D SCR 52; K. Rajendran v. State of Tamil Nadu, [1982] 3 SCR 628, referred to. ( 6) Article 21 is not attracted in the case of trade or businessj- either big or small. The right to carry on any trade or business and the concept of life and personal liberty within Article 21 are too remote to E be connected together. [J054G] Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors., [1985] 3 sec 545, distinguished. (7) The provisions of the Delhi Municipal Corporation Act, 1957, t" F are clear and the Municipal Corporation of Delhi has full authority to permit hawkers and squatters on the side walks where they consider it practical and convenient. [J052G-H] (8) The provisions of the Punjab Municipal Act, 1911, as applicable to New Delhi area, should receive a liberal construction so that the G New Delhi Municipal Committee may be in a position to exercise full authority to permit hawkers and squatters on pavements in certain ·-\. areas. [ J053A-C] Pyarelal v. N.D. M.C., [1967] 3 SCR 747 overruled. H ( 9) A scheme should be drawn up as soon as possible containing ·~ SODAN SINGH v. N.D.M.C. 1041 f detailed necessary provisions dealing with all relevant aspects, and capA able of solving the problems arising ip the situation in a fair and equit, able manner. [I057B-C] (10) The demand of the petitioners that hawkers must be permiti led on ~very road in the city cannot be allowed. If a road is not wide enough to conveniently manage the traffic on it, no hawking may be B permitted at all, or may be sanctioned only once a week, say on Sundays when the rush considerably thins out. Hawking may also be justifiably prohibited near hospitals or where necessity of security measures so r demands. There may still be other circumstances justifying refusal to t'" permit any kind of business on a particular road. [1057E] '-;- (ll) Some of the llawkers ip big cities are selling very costly c luxury articles including sophisticated electronic goods, sometimes imported or smuggled. The authorities will be fully justified ~o deny to such hawkers any facility, They may frame rules in such manner that it may benefit only the poor hawkers incapable of investing a substantial amount for starting the business. Attempt should be made to make the D scheme comprehensive, dealing with every relevant aspect, for exampie, the charges to be levied, the procedure for grant and revocation of -{ the licences, etc. [I057H-1058B] Per Ku/dip Singh, J. E (1) The guarantee under Article I9(1)(g) extends to practice any ""' profession, or to carry on any occupation, trade or business. The object of using four analogous and overlapping words in Article 19(l)(g) is to ' make the guaranteed right as comprehensjve as possible to jnclulje all ,.., the avenues and modes through which a man may earn his livelihood. In a out-shell the guarantee takes into its fold any activity carried on by a F citizen of India to earn his living. The activity must of course be legitimate and no anti-social like gambling, trafficking in women and the like. [i058H-1059C] I (2) Once street-trading is accepted as legitimate trade, business or occupation it automatically comes within the protection guaranteed G under Article 19(1)(g) of the Constitutionoflndia. [I062E] .,.. (3) Street trading is an age-old vocation adopted by human beings to earn living. It is one of the traditionally recognised business or trade in England. This is so in spite of the fact that there is a comp!<# social security in that country and as such no compulsion on the citize_ns to be H A B c D E 1042 SUPREME COURT REPORTS [1989] 3 S.C.R. driven to street trading out of poverty or unemployment. On the other band, abysmal poverty in India warrants outright rejection of the argument that nobody has a right to engage himself in 'street trading'. [I059D, 1062A·Bl ( 4) There is no justification to deny the citizens of their right to earn livelihood by using the public streets for the purpose of trade and business. [l063B] Saghir Ahmad v. The State of U.P. & Ors., [1955] 1 SCR 707; Manjur Hasan v. Mohammed Zaman, 52 I.A. 61; Himat Lal K. Shah v. Commissioner of Police Ahmedabad & Anr., [1973] 2 SCR 266, referred to. (5) Street trading being a fundamental right has to be made avail· able to the citizens subject to Article 19(6) of the constitution. It is within the domain of the State to make any law imposing reasonable restrictions in the interest of general public. This can be done by an enactment on the same lines as in England or by any other law permissihie under Article 19(6) of the Constitution. [1064B] Bombay Hawkers Union & Ors. v. Bombay Municipal Corporation & Ors., [1985] 3 SCR 528; Municipal Corporation of Delhi v. Gurnam Kaur, A.I.R. 1989 S.C. 38, referred to. ( 6) The skeletal provisions in the Delhi Municipal Corporation Act, 1957 and the Punjab Municipal Act, 1911 can hardly provide any regulatory measures to the enormous and complicated problems of street trading in these areas. [ l 063D] p CIVIL APPELLATE/ORIGINAL JURISDICTION: Special Leave Petition (C) No. 15257 of 1987. etc. etc. From the Judgment and Order dated 23.4.1987 of the Delhi High Court in CMP No. 268 of 1987. G V.M. Tarkunde, D.D. Thakur, Govinda Mukhoty, A.P. Singh, K.N. Rai, S. Balakrishnan, R.N. Keswani, R.F. Nariman, P.H. Parekh, D.Y. Chanderchud, J.P. Pathak, Shishir Shar_ma, Ms. Gitanjali, Mrs. Biraj Tiwari, Ms. Sunita Sharma, N.K. Sahoo, Arun Jaitley, Ms. Bina Gupta, Ms. Madhu Khatri, L.K. Gupta, R.C. Kaushik, Rajiv Sharma, B.S. Bali, M.C. Dhingra, A.S. Bawa, V.K. Verma., H Kirpal Singh, A.S. Pundir, S. Srinivasan, Mrs. Sushadra, B.B. .;._ """ . .,__ "I\ i SODAN SINGH v. N.D.M.C. (SHARMA, l.] 1043 Tawakley, S.K. Mehta, Dhruv Mehta, Atul Nanda, Ms. Mridula Ray, A R.M. Tewari, Ms. Rani Jethmalani, Ajit Singh Bawa and Vi jay Verma for the Petitioners. G. Ramaswamy, Additional Solicitor General, R.B. Datar, O.P. Sharma, Dr. L.M. Singhvi, A.K. Sen, Ranjit Kumar, R.C. Gubrele, R.K. Maheshwari, Mensoor Ali, A.M. Singhvi, D. Bhandari, N. B Waziri, Mrs. Madhu Bhandari, K.B. Rohtagi, S.K. Dhingra, Baldev Atreya, S.B. Saharya, V.B. Saharya, K.R. Gupta, R.K. Sharma, Vimal Sharda, Vivek Sharda, Mrs. Nanita Sharma, Aruneshwar ~ Gupta, Inderbir Singh Alag and Sushi! Kumar for the Respondents. Mrs. Sushma Suri, B.B. Sawhney, P.K. Manohar, Mrs. Indra C Sawhney, Mrs. Abba Jain, P.K. Jain, S.S. Hussain, Amlan Ghosh, Jitendra Sharma, R.D. Upadhyay, Y.K. Jain, D.D. Sharma, Rajesh, Naresh Kabkshi, Mrs. Urmila Kapur, M.M. Kashyap, Anis Ahmad Khan, Manjeet Chawla, S.N. Bhatt, N. Ganpathy, P. Parmeshwaran, A.S. Pundir, Pandey Associate, Arnn K. Sinha, M.B. Lal, A.K. Sanghi and S.M. Ashri for the appearing parties. D The following Judgments of the Court were delivered: SHARMA, J. The petitioners in all these cases claim the right to engage in trading bμsiness on the pavements of roads of the city of Delhi. They have asserted that they have been pursuing their trade E with the permission of the municipal authorities for some time, but recently there has been illegal interference by them. Some of the petitioners have moved this Court under Article 32 of the Constitution and others impugn adverse judgments of the Delhi High Court dismissing their claim. 2. As the petitioners have challenged the correctness of the decision of a Division Bench of this Court in Pyarela/ v. N.D.M.C and another, (1967) 3 SCR page 747, these cases were placed for hearing before a larger Bench. F 3. The petitioners, in their applications before this Court, have G alleged. _that they were allowed by the respondents to transact their business by occupying a particular area on the pavements, on payment of certain charges described as Tehbazar.i. It is contended that the municipal authorities by their refusal to permit the petitioners to continue with their trade are violating their fundamental right guaranteed under Article 19(1)(g) and 21 of the Constitution. They have also H 1044 SUPREME COURT REPORTS [1989) 3 S.C.R. complained of ma/a fides, arbitrariness and discriminatory conduct ). A attracting Article 14 of the Constitution. 4. The respondents, besides denying the facts alleged by the petitioners, contended that nobody has got a legal right to occupy exclusively a particular area on the road-pavements for pursuing a B trading business, and nobody can claim any fundamental right in this regard whatsoever. It has been strenuously urged that the roads are meant for the use of general public for passing and re-passing and they are not laid to facilitate the carrying on of private business. - 5. The main argument on behalf of the petitioners was addressed 1'\ c by Mr. Tarkunde, who appeared for petitioner Sodan Singh in S.LP. No. 15257 of 1987. Several learned advocates representing the other ~ petitioners, besides adopting the main argument, made brief supplementary submissions. The place where petitioner Sodan Singh claims to have the right to squat for soiling ready-made garments is within New Delhi. Several other petitioners have similar claims against the D New Delhi Municipal Committee. The remaining petitioners allege that they have been pursuing their squatting business within Delhi, as defined in the Delhi Municipal Corporation Act, which is administered by the respondent Municipal Corporation of Delhi. Separate arguments have been made on behalf of the New Delhi Municipal } Committee and the Municipal Corporation of Delhi. E 6. Mr. Tarkunde urged that petitioner Sodan Singh is a poor hawker making his both ends meet by selling ready-made garments on » an area of 8' x 24' near Electric Pole No. 12, Janpath Lane,New Delhi as illustrated in the attached map Annexure-'A' to the petition. Earlier he was permitted to hawk from time to time by the respondent ~- F under licences as per Annexure 'A-2', but now the privilege is being ,denied to him and his goods were removed forcibly from the pavement and were later released only on payment of cost of removal charges. In the counter affidavit of the respondent the allegations have been denied and it has been pointed out that the photo copy of the licence Annexure 'A-2' itself shows that the petitioner was permitted to sell G 'Channa' and 'Moongphali' on a 'Vehngi' on and around Bus-stop No. 430 on Pt. Pant Marg; and he was at no point of time allowed to occupy a fixed place for carrying on business in ready-made garments. We do not propose to go into the facts of this or the other petitions and would leave the individual cases to be dealt with by the Division Bench in the ~ light of the general principle which will be discussed in this judgment. H SODAN SINGH v. N.D.M.C: [SHARMA, J.] 1045 7. The Municipal Corporation of Delhi was established by a A notification issued under s. 3 of the Delhi Municipal Corporaiiori Aci, 1957, and ihe provisions of that Act are relevant for the majority of the present cases. The other cases relate to ihe other areas fofiniii.g part of the Union Territory of Delhi governed by the provisions of the Punjab Municipal Act, 1911. However, ihe main submissions iri aii ihese cases made on behalf of both sides have been with respeci ill the general B pririeiples applicable in India about the right to carry on business by squatting on pavements of public Streets. 8. Mr. Tarkunde contended that the peiiiioi.iers afe poof peopie arid depend on their business for their livelihood. if. they ate iiti! allowed tb occupy some specific plilce for conductillg their biisiiiess; G tbey may starve. this will lead to violatitiri of their fiillclahieiiiai fight tillder Article 21 of the tohstitution, Reliance was placed ori the dedsioh iii Olga Tellis and i:>thers v. Bombay Municipal Corporation and others, [ 1985] 3 sec 545. the learned counsel further said that the two respondents have been in the past allowing squatter traders on the pavements on payment of Tehbazari charges. He drew our attention tb D the counter affidavit of the respondent in S.L.P. Nos. 4519-23 of 1986 at riage 146 where a resolution by the New Delhi Municipal Committee has- been mentioned ih paragraph Iil. In the case of Delhi Municipal Corporation also several documents have been relied upon for showing that specific areas have been allowed to be occupied for the purpose of trading business from time to time. The learned counsel E argued that since the two municipalities have been settling specific areas for the purpose of· squatting, it is not open to them to deny squatting rights to the petitioners and other persons situated in similar circumstarices. 9. In Pyare Lal etc. v. N.D.M.C., [1967] 3 SCR 747 the New F Delhi Municipal Committee banned the sale of cooked edibles on public streets, and prevented the petitioners, licensed vendors of potato chops and other edibles, from continuing with their business. After u~Sticcessfully moving the Punjab High Court, they came to thiS Court. The appeals were dismissed holding that persons in Ihdia cannot claim a lawful right to pursue street trading, and the N,D.M.C. b was perfectly authorised to take steps under s. 173 of the Punjab Municipal Act for stopping the business. It was also obserVed that the N .D .M .C. was not empowered under ihe Act to aliow trade oh pUlilic streets on a permanent basis and that permission for sale of goods could be granted only on special occasions on temporary basis as in ihe case of festivals etc. Reliance had been placed on behalf of the H 1046 SUPREME COURT REPORTS [1989] 3 S.C.R. petitioners on certain passages from Halsbury's Laws of England, --"" A which the Court distinguished on the ground that street trading was regulated by certain statutes in England, and there were no such provisions applicable in the cases before this Court. The right to pursue street trading in India was thus negatived. Mr. Tarkunde contended that it is not correct to deny the members of the public their right to ~ B engage in business on the public streets in the country. He said that this is one of the fundamental rights guaranteed both, under Article 19( l)(g) and Article 21. According to the learned counsel, the practice of the street trading is well established for a considerable time in all the civilised countries of the world including India, England and United - States of America. Refuting the suggestion made on behalf of the ~ c respondents that it was only a hawker who sells his goods while moving from door to door and place to place who is allowed on the public ""' streets, Mr. Tarkunde referred to Halsbury's Laws of England, Vol. 40, paragraphs 431 to 446 under the heading 'Street Trading in Greater London'. It was suggested that the right of the members of the public in this regard was founded on the common law right. The D learned counsel further relied on the third paragraph of s. 253 of the Chapter 'Highways, Streets, and Bridges' of 39 American Jurisprudence (2nd Edition) which reads as follows: "A municipality's power to regulate the use of streets for } private gain is to be liberally construed. The purpose of E such regulations is to promote public safety, and not to regulate and control indirectly the user's business as such. There is no authority in a municipality to prohibit the use of the street by any citizen or corporation in the carrying on of a legitimate business, harmless in itself and useful to the community, which is independent of the police power f F under which reasonable regulations in the promotion of the public order, safety, health, and welfare are proper." 10. In his reply Mr. Singhvi, the learned counsel for N.D.M.C. pointed out that the first two paragraphs of the aforementioned s. 253 which are quoted below negative the right asserted on behalf of the G petitioners and paragraph 3 mentioned above has to be read in that light. ~ "S. 253. Business purposes: Individuals do not have the inherent right to conduct H their private business in the streets, nor can they acquire a SODAN SINGH v. N.D.M.C. [SHARMA, J.] 1047 vested right to use the streets for carrying on a commercial business. However, individuals do have the right to use the streets to some extent for the purpose of bartering or trading with each other, or for prosecuting a business, trade, or calling, although they cannot legally carry on any part of their business in the public streets to the annoyance of the public, or supply the deficiencies in their own premises by monopolizing the street or walk. The use of public streets as a place for the prosecution of a private business for gain is generally recognised as a special or extraordinary use which the controlling public authority may prohibit or regulate as it deems proper. When a municipality does permit private individuals to have exclusive possession of the street surface for a private business use, such permit is so unusual, and beyond the ordinary authority and power of a municipality, that it may not issue such a permit in the absence of special enabling state legislation. Assuming that such power exists, the granting of permission to a private person to so use the streets is totally within the discretion of the municipality." -{_ The learned counsel contended that the grant of exclusive right to occupy any part of the road amounts to the negation of the Common A B c D Law theory of dedication of a road for public use. E 11. Reference was also made on behalf of the petitioners to the judgment in M.A. Pal Mohd. v. R.K. Sadarangani, A.LR. 1985 Madras 23, wherein it was observed that hawker trade so long as it is proper! y regulated by public authorities could never be a public · nuisance; rather it serves the convenience of the public. and is found F not only in India but also in other countries. 12. The question of applicability of the El)glish and American laws on the present aspect was considered by a Division Bench of the Madras High Court in C.S.S. Motor Service v. Madras State; A.LR. 1953 Madras 279 and the decision was later approved by this Court in Saghir Ahmad v. The State of U.P. and others, [1955] 1 SCR 707. After a thorough consideration of the relevant materials Venkatarama Aiyar, J, who delivered the judgment pointed out some of the basic differences in the law of this country on the present subject from the American and English laws, which render the American decisions inapplicable on certain aspects. The right to carry on business, G H A B c D E H 1048 SUPREME COURT REPORTS [ 1989] 3 S.C.R. although recognised as one of the liberties protected by the American Constitution, did not acquire the full status of the freedoms expressly mentioned in the Constitution, such as, the freedom of speech, of person, and of religion; and was viewed somewhat i11 the light of an interloper or parvenu among them. The freedoms expressly mentioned in the American Constitution occupy an exalted position which was denied to the unexpressed freedoms including the right to carry on business. Under the Indian Constitution this right is one of the free· doms expressly protected under Article 19( l)(g) and is placed on the same tbdiing as freedom bf speech, etc. Further only some trades could be t:ilri'ied on by the American citizens as a matter of right and the otliers including the transport business dn public roads only if the State perfuiited. The learned Judge observed that this is called a 'franchise; bf a 'privilege' and has an English origin. That is riot the case in this cdilri!ry; inasrrillch as Article 19(1)(g) does not make any distinction frorri trade to trade. So far Englarid is concerned, the rights of citizens to public pathways originated in feudal times when the lands were owned by individuais. The public highways generally pass through these larids and since the citizens were using these roads the law inferred a dedication of the pathways by the owners for user by the public; but the extent of this user was limited to the passing and re-passing on the road. The position in India has always remained somewhat different and has been summarized in paragraph 24 of the judgment of Venkatarama Aiyar J., in the following terms, which has been quoted with appro~ by this Court in Saghir Ahmad's case. "The true position then is that all public streets and roads vest in the State but that the State holds them as trustee on behalf of the ·public. The members of the public ~ 'r :i. -<( >- are entitled as beneficiaries to use them as a matter of right ~ and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as trustees on behalf of the public is entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the public generally. Thus the nature of the road may be such that it may not be suitable for heavy traffic and it will be within the competence of the legislature to limit the use of the streets ..1. to vehicles which do not exceed specified size or weight. ·-.: Such regulations have been held to be valid as within the police power of the State in America. Vide 'Morris v. Budy', [1927] 71 Law Ed. 968, Sproles v. Bindfo~d', [19321 76 Law Ed. 1167, and-' South Carolina State v. Barnwell -- '''l: SODAN SINGH v. N.D.M.C. [SHARMA, J.] 1049 Bros.' I 1938] 82 Law Ed. 734. For the same reason the A State might even prohibit the running of transport buses and lorries on particular streets or roads if such running would interfere with the rights of pedestrians to pass and ~ re-pass as it might if the street is narrow or conjested but ""1 subject to such limitations the right of a citizen to carry on business in transport vehicles on public pathways cannot be B denied to him on the ground that the State owns the highways." r.,,., 13. Mr. Singh vi is correct in pointing out that the passages of the f American and English laws, as relied upon on behalf of the peti-· ). tioners, do not establish their right to carry on trading business on c public streets, but for that reason their claim cannot be rejected either. The question requires to be examined further. The observations in the judgment of Venkatarama Aiyer, J. quoted above primafacie support ;:;,1 the petitioners. They received express approval of this Court in Saghir Ahmad's case, but there is an important distillction between those cases and the present matter which cannot be ignored. In both the D above cases the petitioners were claiming the right to ply transport vehicles for hire on public streets; in other words, they wanted to use -{ the roads for transport, for which the roads were primarily laid out and while so doing attempted to earn money. In the present cases before us the petitioners are desirous of conducting their trade business by sale of goods on the roads from stationary points; they do not want to make E ~ use of the roads for movement of persons or goods. The question is whether this makes a material difference. 14. The primary object of building roads is undoubtedly to facili- .... tate people to travel from one point to another. Quoting several authorities Byron K. Elliott and William F. Elliott in their treatise on F the Law of Roads and Streets have defined a street as a road or public way in a city, town or village. A way over land set apart for public travel in a town or city is a street, no matter by what name it may be called. If a way is free to all people it is a highway. P. Duraisw.ami Aiyangar in his book dealing with the Law of Municipal Corporation in British India (1914 Edn.) has observed that the primary and G t' paramount use of the street is public travel for man, beast and carriage for goods. On behalf of the respondents reliance has been placed on the oft-repeated adage that public have a right of passing and repassing through a street but have no right "to be on it", which Sri Aiyangar also has mentioned at page 542 of his book. Halsbury, relied upon by both sides, has stated (Vol. 21 paragraph 107) that the right of H • 1050 SUPREME COURT REPORTS (1989) 3 S.C.R . A the public i~ ll tjzht to pass alone a highway for the purpose of legitimate tra,v.,1, not tq 1,>c: qn it, except so far as the public's pr.,sence is atttjbutable to a reasonable and proper user of the highway as such. These statements certaioly do not mean that a traveller has to be in pew~tuitl moticiii. ;hen lie is in ·a pubii(!stie.,i. Ii may be "ss~ntial for liim, to s\op somc:~e for various reasons~he may have to l!light fro,m, ~ ll y~liicle or pick up a ftjend, ~o)\ect certain articles or tmload goods o! illls to ta,ke some ·rest aiter a long anc! ~!renuo\ls iq\l!f!ey, WJ!a~ is, required of him is that he should not create an unreasonable obstruc-· . tion which may inconvenience other persons having similar right to piiss; he, should not make: excc:ssiye use of the road to the l'rejudic" qf tl\C: ()th"nY of another commences. Subject to this, a member of the public is t::: ~nthied to legitimate "user of the roa"d "other than ~~tualiy pas;.lng or ii:-iiassing through it. · · · · · · · · ·· ·· · · · · · · 15. It has been sometimes argued that since a person is entitled to the user.of every part of a publi_c street, he cannot be deprived of the P, ijj~. o( any p0rtion thereof by puiti.llg up of any obstruction. This propo,sition \n its a,sec! on the proyisions of the Mad!as pty Mllajcipa~ <;":()rpoia.tion A~t, \919, and was rightly repelled by pointing E. em. \hat sii;i<:e:. the pay"111c:nt is also included within the expression ·~~rec:t', a member of the public relying upon the aforesaid p~oposition • can insist on his right to walk over a flower-bed or structure erected by ~11~· "public authorities for regulating traffic which will be wholly · unpractical. The authorities are duty bound to locate post boxes, fire .• hydrants with water tanks, milk booths, bus or jutka stands, rubbish · f-. bine etc., in appropriate places in a public street and it would be l?reposterous to hold that this cannot be done as somebody may insist on keeping every inch of the street available for aCtual passage. Winfield and Jolowicz in their book on Tort (12th Edn.) have said that nuisance may be defined, wit'i reference to highways, as any wrongful act or omission upon or near a highW°ay, whereby the public are prea· vented from freely, safely, and conveniently passing along the highway and that the law requires of users of the highway a certaio amount of . , . . "give and take". The case of Harper v. G.N. Maden and Sons, Limited, [1933) 1 Ch. 298 illustrates this point. The defendants there who had their house abutting the road decided to add another floor to their existing premises. Before starting construction they erected Ii "s~ffol~~g" resting on the footpath, and vut up a wooden hoarding SODAN SINGH v. N.D.M.C. [SHARMA, J.] 1051 ~ next door to the plaintiff's shop for the purpose of enclosing a space to be used, during the alterations to their building, for depositing bricks A and other materials. In an action by the plaintiff, for injunction and damages, the trial Judge held that although the scaffolding and hoara' ing were reasonably necessary for the coiislructloi\ aii