The court established that the Traffic Notification imposing restrictions on the movement of heavy vehicles during busy hours in Kolkata was reasonable and did not violate the petitioners' fundamental rights under Article 19 or Article 14 of the Constitution of India.

JUDGMENT :

SABYASACHI BHATTACHARYYA, J.

1. The petitioners are real estate developers. The present writ petition assails a Traffic Notification issued by the Commissioner of Police, Kolkata bearing No. TP/25 dated August 7, 2023. By virtue of the said Notification, inter-alia, movements of Heavy Goods Vehicles and Medium Goods Vehicles have been restricted to ply from 06:00 hrs. to 22:00 hrs. on all days throughout the city of Kolkata except the Port area. Exception has been made for goods vehicle carrying essential and perishable items like - LPG (Liquefied Petroleum Gas), POL (Petroleum, Oil and Lubricants), Oxygen, Milk, Medicine, Vegetables, Fruits, etc. which have been allowed to ply from 22:00 hrs. to 08:00 hrs. and again from 12:00 hrs. to 16:00 hrs.

2. The petitioners are concerned with Transit Concrete Mixtures, which fall under the category of Heavy Goods Vehicles required for transporting Ready Mixed Concrete (RMC) from Batch Mix Plants, where they are manufactured, to the sites of construction. RMC, according to the petitioners, has a life-span of around two hours which can be extended by use of Admixtures to slow down the rate of workability loss. Learned counsel cites the Indian Standards Ready Mixed Concrete - Code of Practice, issued by the Bureau of Indian Standards, and the PWD Handbook, Chapter No. 41 relating to Ready Mixed Concrete to substantiate the said shelf-life of RMC. It is argued that as per Regulation 34 of the Kolkata Municipal Corporation (Building) Rules, RMC cannot be used at construction sites between sunset and sunrise. Thus, the said product has to be used during the day-time, when transit of heavy vehicles transporting the same is debarred.

3. Again batching plants where RMC is manufactured cannot operate during night-time between 22:00 hrs. and 06:00 hrs. due to various restrictions. Thus, the short window for transporting RMC from the manufacturing site to the site of construction is about four hours.

4. Since the Batch Mix Plants have to operate during day-time and the transport also has to be effected during day-time to the construction sites for RMC to be of any use, unless the transport of RMC by heavy vehicles is permitted during the day-time, the entire use of RMC and construction by such method is virtually debarred by the impugned Notification for all practical purposes.

5. Learned counsel for the petitioners argues that since construction is an essential activity and RMC is a widely used modern technology in construction, the restriction imposed is violative of the right of the petitioners to carry on business, in contravention of Article 19 of the Constitution of India.

6. It is next argued that since other essential commodities have been permitted under the same Traffic Notification, the transport of RMC and movement of heavy vehicles for such limited purpose should be brought within the exception clause of the impugned Notification, even if the Notification itself is not cancelled.

7. It is argued that in view of the unreasonable discrimination made between other essential commodities such as Oxygen, LPG, POL, etc. and RMC, the said restriction is also violative of Article 14 of the Constitution of India.

8. Learned counsel for the petitioners cites Chintamanrao vs. State of Madhya Pradesh, AIR 1951 SC 118 and Sakal Papers (P) Ltd. and Others vs. Union of India and Others, AIR 1962 SC 305 in support of the contention that unreasonable and therefore arbitrary restrictions contrary to Article 14 of the Constitution ought to be set aside.

9. Learned counsel cites Shayara Bano vs. Union of India and Others, AIR 2017 SC 4609 and In Re: Natural Resources Allocation Special Reference No. 1 of 2012, reported at (2012) 10 SCC 1 in support of the proposition that the restrictions imposed upon the petitioner are disproportionate and results in total deprivation, infringing upon the petitioner’s fundamental right to movement and carry on business enshrined under Article 19 of the Constitution of I