Fundamental right under Article 19(1)(g) can be curtailed only by law and not by executive action: Karnataka High Court

The Karnataka High Court recently emphasised that the fundamental right to carry on one's occupation, trade, profession or business under Article 19(1)(g) of the Constitution cannot be restricted by an executive action. [Jambo Plastics Pvt. Ltd Versus Chief Quality Assurance Establishment (Warship Equipment)].Justice S Sunil Dutt Yadav has held the right of the owner of a property to obtain sanction for a building plan – a “concomitant right of property” – cannot be abridged by an executive fiat like the guidelines. ."The right to carry on occupation, trade or business including of developing property would be a right falling within Article 19(1)(g) of the Constitution of India and restriction to be imposed upon such right under Article 19(1)(g) would be only by a law under Article 19(6) which is by a legislative law and cannot be by an Executive action," the Court held..The Court also held that guidelines of the Union Ministry of Defence for issuance of a ‘No Objection Certificate’ (NOC) for constructions in the vicinity of defence establishments cannot be cited to restrict such constructions when the Works of Defence Act is in operation. The Court explained that the guidelines have no place when the field is occupied by legislation - Works of Defence Act.The authorities concerned had asserted that these guidelines were issued Government of India (Transaction of Business) Rules, 1961 as well as the Government Of India (Allocation of Business) Rules, 1961. The judge, however, was unconvinced by the submission as the guidelines were not issued in the name of the President, as required under Article 77 (1) of the Constitution of India. “Accordingly, the Guidelines would be illegal insofar as they infringe upon the right of the petitioner No.1 [property owner] to enjoy his property,” the Court ruled. .The Court was hearing a petition by Jambo Plastics Private Limited and Merushikhar Infra (petitioners).The petitioners were aggrieved by the refusal of the Bruhat Bengaluru Mahanagar Palika (BBMP) to issue a building sanction for a residential project.Pertinently, the BBMP had insisted that the petitioners first obtain an NOC from the Chief Quality Assurance Establishment (CQAE) (Warship Equipment), Ministry of Defence.In July 2016, the defence authorities denied the NOC stating that the construction put up by the petitioners was a potential security risk. The Court was told the decision has been taken in terms of the guidelines issued by the Central government..The Court, however, opined that there was no need to issue such executive instructions when the Works of Defence Act already occupied the field. “When the legislative scheme contained in the Act provides for a methodology for imposition of restriction regarding proposed constructions in the vicinity of a Defence Establishment, there cannot be resort to exercise of Executive power for imposing of such restrictions," the Court held..The Court added that when such power is required to be exercised under a statute in a particular manner, "there cannot be recourse to achieve the same consequence in a different manner by recourse to exercise of Executive power.".The Court further held that a developer’s right to carry on occupation, trade or business including the business of developing property, would be a right falling within Article 19 (1) (g) of the Constitution which can be restricted only by a law under Article 19(6) of the Constitution. .The Court proceeded to grant relief to the petitioners and directed the BBMP to proceed with consideration of grant of sanction without insisting on adherence to the guidelines. The Court ordered that the process must be completed within a period of three months..Advocate Yovini Rajesh Rohra represented Jambo Plastics and Meushikhar Infra.Advocate MN Kumar represented the Chief Quality Assurance Establishment (Warship Equipment).Senior Advocate Uday Holla with Advocate Manu K and Advocate Sumangala Simimath represented the Commissioner and Joint Director (Town Planning-South) of the BBMP..[Read Judgment]