How to deal with harassment by neighbor in residential area

884 votes

First of all I would like to clear that it is the fundamental right of every citizen of India to carry on trade under article 19(1)(g) of our constitution of India but there are some restrictions also.

Article 19 (1) (g) of Constitution of India provides Right to practice any profession or to carry on any occupation, trade or business to all citizens subject to Art.19 (6) which enumerates the nature of restriction that can be imposed by the state upon the above right of the citizens.

1. Sub clause (g) of Article 19 (1) confers a general and vast right available to all persons to do any particular type of business of their choice. But this does not confer the right to do anything consider illegal in eyes of law or to hold a particular job or to occupy a particular post of the choice of any particular person.

2. Further Art 19(1) (g) does not mean that conditions be created by the state or any statutory body to make any trade lucrative or to procure customers to the business/businesssman

3. Moreover a citizen whose occupation of a place is unlawful cannot claim fundamental right to carry on business in such place since the fundamental rights cannot be availed in the justification of an unlawful act or in preventing a statutory authority from lawfully discharging its statutory functions.

4 Keeping in view of controlled and planned economy the Supreme Court in a series of cases upheld the socially controlled legislation in the light of directive principles and the activities of the private enterprises have been restricted to a great extent.. However under Article 19(6)5, the state is not prevented from making a law imposing reasonable restrictions on the exercise of the fundamental right6 in the interest of the general public or,

(i) A law relating to professional or technical qualifications is necessary for practicing a profession. A law laying down professional qualification will be protected under Article 19(6). No person can claim as of right to possess a certificate for the profession of acting as guide, and the certificate once granted can be cancelled without hearing the person concerned.

(ii) A law relating to the carrying on by the state, or by any corporation owned or controlled by it, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. Under article 19(6)(ii) nothing contained in Sub-clause(g) of Clause (1) of Article 19 shall affect carrying on by the State any trade, business, industry or service, whether to the exclusion, complete or partial of citizens or otherwise if it is not in the interest of general public. Article 19 (6)(ii) will have no application if the State is not carrying on any trade.
So the right if carrying trade and business is not absolute at this juncture I discuss the provision of law to take immediate action against such person who is holding the business in violation of any statuary law and regulations. In your case the act of the shopkeeper is the most common problem in our socity specially those places where persons are not taking the action against the illegal trade and business in your case the act of the shopkeeper will come in the category of public nuisance.

Legal provisions regarding Removal of Public Nuisances under section 133 of the Code of Criminal Procedure, 1973.

A class or community residing in a particular locality may come within the term ‘public’. ‘Nuisance’ is an inconvenience which materially interferes with the ordinary physical comfort of human existence.

According to Section 268 of the Indian Penal Code, in order to constitute a public nuisance, the injury, danger or annoyance must be caused to the public, or to the people in the vicinity or to persons who may have occasion to exercise any public right.

A ‘public place’ includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes. The public place must be open to the public, i.e., a place to which the public have access by right, permission, usage or otherwise.

The procedure to remove the public nuisances which can be redressed according to Section 133 of the Code of Criminal Procedure through conditional order is as follows:

Whenever a District Magistrate or a sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers—

(a) That any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or

(b) That the conduct of any trade or occupation, or the keeping of any goods or merchandize, is injurious to the health of physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandize should be removed or the keeping thereof regulated; or

So your case will covered under section 133(1)(b) you should file an complain before the nearest police station and they will transfer the complain before SDM or you can directly approach to the SDM to take immediate against the shopkeeper.

You can also file complain before municipal corporation to remove the nuisance from public place.
I hope this advice will help you to understand and face the problem.

Advocate Rohit Jagwani LawRato

717 votes

Sir,
In this case I assumed that immediate neighbor has opened a shop in a residential area. The steps you should take against your neighbor are as follows:-
1. You can lodge police complaint against your neighbor if the nuisance continuously interferes with your ability to enjoy your property
2. You can contact a lawyer and issue legal notice to your neighbor to desist from disturbing your peace.
3. You can lodge complaint against your neighbor under section 133 of IPC and obtain an order to desist from public nuisance.
For any further assistance and help you can contact me.

Advocate Aamir Zafar Khan LawRato