"Skill Cannot Be Restricted To A Particular Age": JKL High Court Quashes GO Insofar It Regulated Grant Of License To Photographers Based On Age

The Jammu and Kashmir and Ladakh High Court on Thursday observed that the Government can place necessary restrictions for smooth functioning of a particular trade, however, such restrictions must not be unreasonable particularly when the same are aimed to regulate the trade of unemployed skilled youth of a troubled area.

The observations came from Justice Moksha Kazmi Khajuria while hearing a plea in terms of which the petitioners being photographers by vocation, registered with Tourism Deptt J&K, had challenged the orders issued by Commissioner-Secretary to the Government, Floriculture Department, regulating the trade of photography in the parks and gardens. It stipulated that photographers aged 21-45 years (on 1st January of the year in which application is made) are eligible for first permission and those aged not more than 60 years are eligible for renewal.

Counsel Mr Arif Sikander Mir for the petitioners premised the challenge on the ground that the impugned guidelines are not only irrational but unreasonable and illogical too as photographic skill cannot be restricted to a particular age. He further submitted that the petitioners are holding a valid registration granted by the department of Tourism and it can only be the department of tourism who has the authority to regulate the business of the petitioners that too in consonance with the rules governing the subject.

Pressing Article 19(g) into service, which guarantees all citizens the right to practice or carry on any occupation, trade or business, Mr Arif contended that the guidelines were violative of Article 19 (1) (g) of the Constitution as the reasonable restrictions can be put in place through a legislative act only.

Per contra, Mr Mohsin Qadri Sr AAG for the respondents submitted that the guidelines do not curtail the livelihood of any photographer but only regulates the mode of operation and tenure of renewal. Allowing all those who have a valid registration for a particular location would lead to permitting all such photographers in the Garden falling in that location as such a course would result in chaos and overcrowding in the gardens beyond the fixed intake capacity of photographers, he argued.

Adjudicating upon the matter Justice Moksha Kazmi Khajuria observed that the impugned guidelines specifically mention that they would only be applicable to those who are registered with the department of Floriculture. The petitioners, admittedly, are not registered with the Floriculture department and the registration that they are relying upon is of the Tourism department and as per the documents available on record, the said registration has also expired in most of the cases if not in all, the bench recorded.

While assuming that the Floriculture Deptt had the mandate to issue these guidelines the bench observed that despite the said assumption, the guidelines upon having been challenged can be tested for their reasonableness by a mechanism of judicial review.

Testing the guideline of upper age limit and the deposition of annual fee of Rs. 10,000/- on the touchstone of the Wednesbury's principle of reasonableness the bench ruled it to appear wholly unreasonable. Giving reasons for the same the bench observed,

"Skill cannot be restricted to a particular age especially in today's advanced era and it does not further appear to be achieving any kind of object, not to speak of a reasonable object. The condition in respect of deposition of annual fee of Rs. 10,000/- also appears to be unreasonable as the petitioners are admittedly performing their professional duties in the tourist areas and are solely dependent upon the tourist inflow which obviously lasts for only few months".

In view of the above, the court found the condition in respect of upper age as unreasonable and accordingly quashed the same. The respondents were further directed to review the condition envisaging deposition of annual fee of Rs. 10,000/- as the same appeared to be too harsh.

Case Title : Javid Ahmad Akhoon & Ors Vs UT of J&K & Ors.

Citation : 2022 LiveLaw (JKL) 252

Coram: Justice Moksha Kazmi Khajuria

Counsel For Petitioner : Mr Arif Sikander Mir

Counsel For Respondent : Mr Mohsin Qadri Sr AAG

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