1. This Rule is directed against a conviction and sentence under Section 437 (1) (b) read with Section 537 of the Calcutta Municipal Act, 1951. The main point involved is whether Section 437(1) (b) contravenes Article 19(1)(g) of the Constitution.
2. The facts giving rise to the question are these. The petitioners, the Calcutta Tramways Co. Ltd. have for many years past used divers premises in the City of Calcutta for conversion of alternating current into direct current for providing electric traction to their system. It is common case that at none of these premises is any electricity generated. What is done is to receive electricity in bulk in alternating current from the Calcutta Electric Supply Corporation Ltd. and to transform it into direct current. These premises are known as sub-stations or electric converter or transformer houses and appear to be an essential part of the Company's system of working. There is no dispute that the relative machinery and the system under which it works at any of these substations have been in conformity with the provisions of the Indian Electricity Act The working of the Company's tramways is governed by the Calcutta Tramways (Electric Traction) Act (Bengal Act IV of 1900). It is also common case that the petitioners have had the usual trade license for the purpose of carrying on their business and that until 1952 no demand had been made upon them to take out any license in respect of any of these sub-stations. The opposite party's demands upon the petitioners to take out licenses and to pay fees therefor in respect of premises No. 180, Dhurrumtolla Street and 128/4A, Cornwallis Street, Calcutta, respectively for the years 1950-51, 1951-52 and 1952-53 were resisted by the petitioners. The prosecutions which followed ended in the petitioners' acquittal. Thereafter, the present prosecution was started in respect of premises N. 129/4A, Cornwallis Street for failure to take out a license and to pay a fee therefor in respect of the year 1953-54.
3. The case for the Corporation is that the purpose for which the premises are used is, in its opinion dangerous to life, health or property, or likely to create a nuisance and that, accordingly, the petitioners are obliged to take out a license as required under Section 437 of the Calcutta Municipal Act.
4. Section 437 (1) is as follows :
'437. (1) No person shall use or permit or suffer to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a license granted by the Commissioner in this behalf, namely,
(b) any purpose which is, in the opinion of the Corporation (which opinion shall be conclusive and shall not be challenged in any court) dangerous to life, health or property, or likely to create a nuisance;'
Dr. Atul Gupta has argued that Clause (b) of Sub-section (1) of Section 437 is ultra vires the Constitution, as it imposes unreasonable restrictions upon the petitioners' fundamental right guaranteed under Article 19(1)(g) read with Clause (6) of the Constitution. Clause (6) which limits the fundamental right to practise any profession, or to carry on any occupation, trade of business is in these terms :
'Nothing in Sub-clause (g) of the said clause shall affect the operation of any existing Jaw in so far as it imposes, or prevent the State from making any law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause .....'
Clause (6) thus provides for legislation imposing reasonable restrictions upon the exercise of one's fundamental right guaranteed under Article 19(1)(g). It is now well settled that in order to determine the reasonableness of any such restrictions the Court can and should examine both the substantive and the procedural aspects of any impugned restrictive legislation. Kania, C. J., in Dr. N. B. Khare v. State of Delhi, : 1SCR519 , observed :
'The law providing reasonable restrictions on the exercise of the right conferred by Article 19 may contain substantive provisions as well as procedural provisions. While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law'.
This statement of the law was reiterated in the State of Madras v. V. G. Row, : 1952CriLJ966 .
5. Viewed in the light of this law, it is obvious that the restriction imposed by Section 437 (1) (b) is an unreasonable restriction. Clause (6) of Article 19 provides for 'reasonable restriction'. Yet, under the impugned provision of the Calcutta Municipal Act, the opinion of the Corporation, however capricious or unreasonable it may be, is conclusive and cannot be challenged in any court of law. The questioned, provision is unreasonable, because it makes the opinion of the Corporation as to any purpose being dangerous to life, health or property etc. conclusive. It is also unreasonable, because it makes that opinion non-justiciable, notwithstanding the requirement of the Constitution that the restriction must be reasonable. In our view, the impugned provision is blatantly unreasonable. As observed by Mahajan, J. in the case of Chintaman Rao v. State of Madhya Pradesh, : 1SCR759 :
'The phrase 'reasonable restriction' connotes that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word 'reasonable' implies intelligent care and deliberation, i, e., the choice of a course which reason dictates'.
It is all very well to say, as Mr. Mukherjee has said, that the Corporation can be trusted to be reasonable. The carrying out of the provision being left to human agency, without any statutory guidance, what guarantee is there that the unrestricted power will not be abused? Having regard to the law laid down by their Lordships of the Supreme Court, we have no hesitation in holding that Clause (b) of Sub-section (1) of Section 437 constitutes an unreasonable restriction upon the petitioners' fundamental right guaranteed under Article 19(1)(g) and is, accordingly, ultra vires the Constitution. It is to be observed that the corresponding section, namely Section 386, of the previous Calcutta Municipal Act did not contain the impugned provision.
6. The question still remains whether the impugned part is severable from the rest of the provision contained in Clause (b) of Sub-section (1) of Section 437 of the Calcutta Municipal Act. In our view, Clause (b) is one concrete piece of legislation. Even assuming that the impugned part of the provision is distinct and separate from the rest of the provision, we take the view that Clause (b) constitutes a single scheme intended to be operative as a whole. If this be the position, as we think it to be, then the whole of the provision contained in Clause (b) must be struck down as void. It is not the business of this Court to hold a part of a single scheme void, leaving the other part intact. To do so would amount to effect-ing an amendment of the provision, which is the business of the legislature. Any attempt on our part to interfere with the structure and the scheme of the provision as a whole would amount to judicial legislation. As already observed, Clause (b) of Sub-section (1) of Section 437 constitutes, in our view, an unreasonable restriction upon the petitioners' fundamental right guaranteed under Article 19(1)(g) and is, accordingly, ultra vires the Constitution.
7. The other point urged on behalf of the petitioners was that the license fee of Rs. 500/- was in the nature of a tax which neither the State legislature nor the Corporation of Calcutta would levy. In view of our decision that Clause (b) of Sub-section (1) of sec. 437 is ultra vires Article 19(1)(g), we would leave open the question whether or not the licence fee demanded is in the nature of a tax.
8. We would, in the foregoing circumstances, set aside the conviction and the sentence and make the Rule absolute. The fine, if paid, is to be refunded.
9. I agree.