M.M. Dutt, J.
1. The appellants, who are 117 Rickshaw pullers, have preferred this appeal against the judgment of T.K. Basu, J. dismissing the application of the appellants under Article 226 of the Constitution of India.
2. The case of the appellants is that, they have been plying their rickshaws within the limits of the South Dum-Dum Municipality under licences granted to them by the said Municipality under Section 173 of the Bengal Municipal Act, 1932. The appellants claim that by a notification issued by the State Government under Section 2(b) of the Calcutta Hackney-Carriage Act, 1919, hereinafter referred to as the Act, the area appertaining to the South Dum-Dum Municipality has been included in Calcutta as defined in Section 4(2) of the Act, that is to say, inter alia, the area described in Schedule I to the Calcutta Municipal Act. The contention of the appellants is that in view of the said notification under Section 2(b) of the Act, the appellants are entitled to ply their rickshaws in the city of Calcutta inasmuch as their rickshaws shall be deemed to have been registered under the Act. Alternatively, the contention of the appellants is that, they have the right to get their rickshaws registered under the provisions of the Act, It is the case of the appellants that they attempted to get their rickshaws registered under the Act through 'Rickshaw Malik Samity', but the Registering auth-ority under the Act refused such registration. The appellants, therefore, filed a writ petition before this Court, inter alia, praying for a writ in the nature of Mandamus commanding the respondents to issue licences to them under the provisions of the Act. They also challenged the constitutional validity of Section 70A which has been incorporated into the Act by the Calcutta Hackney-carriage (Amendment) Act, 1980. Section 70A, inter alia, provides that if any rickshaw, other than a cycle-rickshaw is used as such without having a licence under the Act, the owner of the such-rickshaw shall be liable to a fine not exceeding Rs. 100 and in default of payment of fine, to simple imprisonment for a period not exceeding three months.
3. At the hearing of the writ petilion before the learned Judge, the appellants challenged the communication dated June 30, 1981 by the Officer-in-charge, Hackney-carriage Branch, Calcutta, made on behalf of the Registering authority Calcutta informing the Secretary of the Rickshaw Malik Samity, Calcutta and 24-Parganas that no new registration of rickshaws could be considered at present. It does not appear that the appellants had advanced any contention before the learned Judge claiming any right to ply their rickshaws in the city of Calcutta in view of the alleged publication of a notification under Section 2(b) of the Act, and of the grant of licences to them under the provision of Section 173 of the Calcutta Municipal Act. They, however, challenged the constitutional validity of Section 70A of the Act.
4. The learned Judge has observed that if the Executive Government decides as a matter of policy that they will not entertain any new application for licence in respect of any rickshaw in the city of Calcutta, that policy decision cannot be called in question in a court of law. It has been further observed by the learned Judge that judicial notice can be taken of the fact that the streets of Calcutta are over-crowded and jampacked, and that slow-moving vehicles are causing the biggest traffic problem in the metropolis. The learned Judge, therefore, rejected the first contention of the appellants, that the refusal by the Registering Authority, Calcutta, to register the rickshaws belonging to the appellants was illegal and not justified. The learned Judge also repelled the contention of the appellants that the provision of Section 70A of the Act was illegal and invalid. In that view of the matter, the learned Judge dismissedthe writ petition of the appellants. Hence this appeal.
5. Before we examine the contentions of the appellants, we may refer to some of the provisions of the Act which are relevant for the purpose of this appeal. Under Sub-section (3) of Section 1, the Act shall apply in the first instance only to Calcutta. 'Calcutta' has been defined in Section 4(2) of the Act as meaning, inter alia, the area described in Schedule I to the Calcutta Municipal Act, 1899; Section 2 of the Act provides as follows:--
'2. The State Government may, by notification,--
(a) extent this Act, or any portion thereof, to any other town or local area; or
(b) exclude from, or include in, Calcutta, or any other town or local area to which this Act is extended under Clause (a), any local area in the vicinity of the same and defined in the notification:'
(The two provisos to Section 2 not being relevant for our purpose are omitted.)
Under Section 4(6), 'notification' means a notification published in the Official Gazette.
6. Chapter II of the Act provides for registration of hackney-carriage- Under Section 5, every hackney-carriage in Calcutta shall be annually registered by a Registering Officer, on such date as the Commissioner of Police may direct. Section 6 relates to the duties of the Registering Officer who shall be a Deputy Commissioner of Police specially appointed by the State Government for this purpose. Section 8 which provides for the procedure of registration is as follows;--
'8. (1) Any person who is desirous of registering a hackney-carriage, shall apply to the Registering Officer, stating the class in which he desires that the carriage may be registered, and shall submit the carriage for the inspection of the Registering Officer.
(2) The Registering Officer shall satisfy himself that the municipal tax imposed upon such carriage for the current half-year has been paid, and decide whether the carriage is fit to be registered in the class applied for, and shall register it in that class or refuse to grant the application.
(3) The person in whose name any carriage is registered shall be deemed to be the owner of such carriage for the purpose of this Act'
7. Chapter VII provides for registration of palanquins. Under Section 61 of theAct, the palanquins shall be registered by the Officer appointed for registering hackney-carriages in the manner provided by Chapter II with respect to the registration of hackney-carriages.
8. Chapter VIII, relates to Rickshaws. Section 70 which is the only section under Capter VIII of the Act provides as follows:--
'70. All the provisions contained in this Act, relating to palanquins, and the hirers, owners and bearers thereof, shall be applicable, mutatis mutandis, and so far as the same may reasonably be applied, to all rickshaws plying for hire in any town or place in which this Act is in force, and to the hirers, owners and bearers of such rickshaws:
Provided that the Registering Officer may cancel, or suspend for such period as he thinks fit, the registration of a rickshaw if in his opinion the type of the rickshaw has been so altered as to render it different from that in respect of which registration was made: Provided further that in any area included in Calcutta under Clause (b) of Section 2, the functions of the Registering Officer shall be performed by an Officer appointed by the Commissioners of the Municipality comprising such area and the said officer shall forward to the Deputy Commissioner of Police referred to in sub-section (1) of Section 6 all papers relating to registration for record after they have been duly dealt with.'
9. The first contention made on behalf of the appellants that as the area comprised in the South Dum-Dum Municipality has been included in Calcutta by a notification published under S- 2(b) of the Act, and as the rickshaws of the appellants have been registered by the said Municipality, the appellants are entitled to ply their rickshaws in the city of Calcutta by virtue of the provision of Section 70 read with that of Section 61 of the Act. Before the contention can be accepted, two conditions have to be fulfilled, namely, (1) the publication of a notification under Section 2(b) of the Act and (2) the registration of the rickshaws of the appellants by an officer appointed by the Commissioner of the South Dum-Dum Municipality as provided in the second proviso to Section 70 of the Act. As to the first condition, no copy of the notification has been annexed to the writ petition, nor has the same been produced before us by the appellants. Mr. Tapash Roy. learned Advocate appearing for the State of West Bengal has stated before us that in spite of a thorough search in the Government records, sucha nomination could not be traced out. He submits that no such notification was published under Section 2(b) of the Act. On the other hand, as evidence of the publication of such a notification Mr. Ranjit Kumar Banerjee, learned Advocate appearing on behalf of the appellants has drawn our attention to the following statement occurring at page 249 of Bejoy Prasad Singh Roy's Bengal Municipal Act:--
'Under Section 2(b) of the Calcutta Hackney-carriage Act, 1919, the following Municipalities have been included within Calcutta, Bally, Baranagar, Cossipore-Chitpore, Garden Reach, Howrah, Kamarhati, Manicktolla, South Dum-Dum and Tollygung. These Municipalities under Section 82(2) of the Hackney-carriage Act, 1919 are entitled to share of the fees and fines realised in Calcutta, in such a proportion as the Local Government may determine.'
10. On the strength of the said statement, it is submitted by Mr. Banerjee that we should proceed on the basis that such a notification was published. We are afraid, we cannot do that as submitted by the learned Advocate. It may be that such a notification was published as has been stated by the learned author of the Bengal Municipal Act, but unless the notification is produced before us, it is difficult for us to take it for granted that the notification was published. The absence of the notification is sufficient to repel the contention of the appellants. But, apart from that, there is another difficulty for the appellants. Even if we assume the existence of a notification Section 2(b) of the Act, the appellants have to fulfil the second condition, namely, their rickshaws have been registered by the officer appointed by the Commissioners of the Municipality to discharge functions of the Registering Officer as laid down in the second proviso to Section 70 of the Act. There is no material on record to show that any such officer has been appointed by the South Dum-Dum Municipality. It is not also the case of the appellants that their rickshaws have been registered by such officer of the Municipality under the provisions of the Act. On the contrary, the case of the appellants is that licences have been granted to them by the South Dum-Dum Municipality under the provision of Section 173 of the Bengal Municipal Act, 1932. Granting of licences under Section 173 and registration of rickshaws under the provisions of the Act are completely different things On the strength of the licences grantedto the appellants under Section 173 of the Bengal Municipal Act enabling them to ply rickshaws within the limits of the Municipality, the appellants, in our view are not entitled to claim that they have acquired any right to ply rickshaws in the city of Calcutta. The second proviso to Section 70 of the Act is not applicable to the appellants whose rickshaws have not been registered by any officer appointed by the Commissioners of the South Dum-Dum Municipality to discharge the functions of a Registering Officer under the Act, The above contention of the appellants is, therefore, without any basis and is registered.
11. Next we may consider the contention of the appellants that in any event they have the right to get their rickshaws registered under the provisions of the Act. It has been urged on behalf of the appellants that the Officer-in-charge, Hackney-carriage Branch, Calcutta, was not justified in refusing to register the rickshaws of the appellants as claimed on their behalf by the Secretary of the Rickshaw Malik Samity, Calcutta and 24-Parganas. It is apparent from sub-section (2) of Section 8 of the Act, which has been set out above that the Registering Officer has the discretion either to register or refuse the registration of any hackney-carriage. The exercise of such discretion by the Registering Officer cannot normally be challenged unless it is tainted with arbitrariness, bias and mala fide.
12. Under Section 71(1) of the Act, the State Government has been empowered to make by-laws generally for carrying out the provisions and intentions of the Act; and in particular and without prejudice to the generality of the foregoing power they may make by-laws with regard to certain matters as specified in clauses (a) to (n) of Sub-section (1) of S 71. It is unfortunate that a copy of the by-laws framed by the State Government has not been placed before us by either party. Instead, we have been handed over a decision of D. N. Sinha J. (as His Lordship then was) in Satya Ranjan Roy v. Commissioner of Police, Calcutta, : AIR1955Cal417 . In that case. Sinha J. has observed as follows (at page 418) :--
'It is by-law No. 13A which grants power to the Registering authority to limit the number of licences if there happens to be too large a number of such vehicles on the road. The registering authority at present finds that 6000 rickshaws (including 168 in Tollyguhj) nowplying on the road is about the saturation point, and it is unsafe to grant any more licences.'
13. Thus it appears from the said observation that the Registering authority has been conferred with the power to limit the number of licences, and such limit to the number of rickshaws has been fixed as 6000 beyond which the Registering authority is unable to register any more rickshaws. It is also the case of the appellants that 6000 rickshaws are plying in Calcutta which will be evident from the letter dated June 4, 1981 of the Secretary of Rickshaw Malik Samity, Calcutta and 24-Parganas, addressed to the Registering authority, Hackney-carriage Branch, Calcutta Police (Annexure B) to the writ petition, although in that letter it has been submitted that six thousand licenced rickshaws are not sufficient for the thickly populated city of Calcutta. Be that as it may, as the Registering authority by virtue of his power under By-law 13A has limited the registration of the number of rickshaws under the Act to 6000, the Registering authority was perfectly justified in refusing to grant registration of the rickshaws belonging to the appellants. In our view, the limit put by the Registering authority to the number of rickshaws to be registered under the provisions of the Act is perfectly justified, for, as judicially noticed by the learned Judge, the streets of Calcutta are overcrowded and jampacked, and that the slow-moving vehicles are causing the biggest traffic problem in the metropolis. Therefore, the appellants have no right to claim registration of their rickshaws for the purpose of plying them in the city of Calcutta. The contention of the appellants in this regard fails, and it is overruled.
14. No argument has been advanced before us on behalf of the appellants challenging the constitutional validity of the provision of Section 70A incorporated into the Act by the said Amendment Act of 1980, which has been held to be valid by the learned Judge.
15. For the reasons aforesaid and, in view of the facts and circumstances of the case, we are of the view that there is no merit in the appeal. The appeal is, accordingly, dismissed. There will, however, be no order as to costs.
Monoj Kumar Mukherjee, J.
16. I agree.