1. The facts in this case are briefly as follows: Tollygunj is a suburb of Calcutta. Prior to 31-3-1953, it had its own Municipality. By notification No. M--IM-79/52(1), dated 31-3-1953, issued by the Government of West Bengal, it was brought within the jurisdiction of the Corporation of Calcutta. Under the Calcutta Hackney Carriage Act, 1919 (Bengal Act 1 of 1919), every 'Hackney Carriage' in Calcutta is required to be annually registered by a Registering Officer, who is a Deputy Commissioner of Police appointed by the State Government. Under Section 70 (read with the provisions of Chap. VII) of the said Act, the provisions are applicable to Rikshaws under Section 2(b) of the said Act, the Government is empowered to include in or exclude from, Calcutta (or any town or local area to which the Act is extended), any local area in the vicinity.
By notification No. 4073-P1 dated 10-8-1935, various Municipalities in the vicinity of Calcutta including the Tollygunj Municipality were included within the definition of Calcutta for the purposes of the said Act. The result was that after that date, all Rikshaws plying within the Tollygunj Municipality for hire, were required to be registered under the said Act.
The twentyone petitioners before me, allege that they are owners of Rikshaws which were plying for hire within the Municipal area of Tollygunj. It is stated that prior to the amalgamation, about 500 Rikshaws were plying in Tollygunj. It is quite clear, that such Rikshaws had to be registered under the said Act. In fact however, only 168 Rikshaws plying in Tollygunj were so registered. If it be true that the remaining number also were plying for hire, they did so in clear contravention of the provisions of the said Act. None of the petitioners before me were so registered.
2. Under Section 71 of the said Act, the Provincial Government is empowered to make by-laws for carrying out the provisions and intentions of the Act. By-law No. 13-A which has been framed under Section 71, provides that the Registering Authority shall not register any Rikshaw intended to be used in Calcutta if he considers that there is already an adequate number of Rikshaws intended to be used in Calcutta.
3. After the amalgamation, the Corporation of Calcutta granted trade licences and Road Licences in respect of a number of Rikshaws (Under Sections 208, 212, 218, 219, Calcutta Municipal Act, 1951). It is however not clear as to how many licences were in fact issued. In July 1953 the Rikshaw owners applied for registration under the said Act and for Traffic Police license under Section 9.
On or about 24-11-1953, a conference was held, attended by the Commissioner of Police, the Joint Secretary to the Local Self-Government Department the Commissioner, Calcutta Corporation, the Deputy Commissioner of Police, Public Vehicle Department and others. This conference reviewed the position that had arisen, as a result of the application for new licenses from the Rikshaw-owners of Tollygunj. The position was that there existed at the time 6,000 Rikshaws registered under the said Act, including 168 Rikshaws, running in the Tollygunj area.
The Commissioner of Police pointed out that for reasons of public safety it was not possible to increase the number of Rikshaws in the City of Calcutta beyond the existing number. It was however suggested that if it was feasible to restrict the plying of Rikshaws to the limits of Tollygunj, a number of new licences could be issued. It was however decided that before doing anything further, a survey of these Rikshaws should be made jointly by the Police and the Corporation Authorities.
4. Accordingly notices were issued and a joint inspection made of about 500 Rickshaws, on 24-11-1953. It is regrettable that the position was not made clear to the Rikshaw owners including the petitioners, who thought that new licenses were about to be granted; and they naturally spent quite a large sum in repairing and refitting the vehicles. In fact, it is said that they spent the staggering sum of Rs. 80,000/- for that purpose.
5. Upon inspection, the Authorities considered 268 Rikshaws as fit for registration.
6. Sometime in February 1954, the Deputy Commissioner of Police, Public Vehicle Department wrote to the Commissioner of Police, pointing out that the Corporation of Calcutta were pressing for a decision as to whether they should issue licenses to the 268 Rikshaws found fit. He recommended that' the 268 Rikshaws should be allowed to ply in Tollygunj, the limits being specified, and the word 'Tollygunj', prominently written on the body of vehicles.
7. On 8-4-1954, there was another conference in the office of the Commissioner of Police and it was decided to take legal opinion as to whether the area within which these Rikshaws might ply, could be restricted.
8. I am informed that the authorities were advised that no such restriction could be imposed until the law was amended.
9. The soundness of this advice is not challenged by the petitioners. Mr. Biswas appearing on their behalf contends, and in my opinion quite correctly, that once a Rikshaw is allowed to be registered under the Calcutta Hackney Carriage Act, you could not restrict any licence holder from plying within the area of Calcutta as defined by the Act. Whatever may have been the position before the amalgamation, no such restriction can now be imposed, unless the Act is amended or suitable by laws promulgated.
10. The position is therefore rather intriguing. The registering authorities are not unwilling to grant a few more licenses to Rikshaws plying in Tollygunj, provided however that these vehicles do not come up to ply in the already horribly congested streets of Calcutta City proper. But once the license is issued, there is no means of achieving this under the law as it stands. That is why no more licenses are being issued. I thought that a way out of this impasse might be achieved if the petitioners voluntarily agreed to restrict their perambulations to Tollygunj which is what they were all along doing.
What could not be clone by the authorities might be done by the licensees voluntarily agreeing to have the same incorporated as a term of their license. The respondents at once agreed to thiscourse. The petitioners however took time to consider this, and have finally rejected this proposal. From the arguments put forward on their behalf it is more than apparent that the fear of the authorities that these new Rikshaws will abandon the confines of Tollygunj and clutter the streets of' the City, which is an immensely more paying proposition -- is not an idle one. It is precisely what the petitioners have in view.
11. Analysing the position, it comes to this. The petitioners state that plying Rikshaws is their business and calling and they have a fundamental right to ply Rikshaws in the City of Calcutta which is being denied to them, thus violating the provisions of Article 19(1)(g) of the Constitution. Under the Calcutta Hackney Carriage Act, any 'hackney carriage'--and a Rikshaw is included in that definition,--is entitled to he registered and licensed, provided it is found in a fit condition for the road and provided all Municipal charges have been paid.
It is By-Law No. 13A which grants power to the Registering authority to limit the number of licenses if there happens to be too large a number of such vehicles on the road. The registering authority at present finds that 6000 rikshaws (including 168 in Tollygunj) now plying on the road is about the saturation point, and it is unsafe to grant any more licenses. The point is, whether this by-law is a reasonable restriction upon the fundamental right of the petitioners to carry on the business of their choice.
12. The Rikshaw as a vehicle of locomotion is a barbarous mode of travel. It is strange to talk of the fundamental right to exploit a few hapless human beings, and transform them into beasts of burden, transporting heavy loads on superheated asphalt roads, in tropical sun and shower, for a miserable pittance. Until however, public conscience is sufficiently aroused to see the monstrosity of it, I must assume that to carry on an inhuman business of this description is included in the charter of our rights conferred by the Constitution.
But is it a right which is unfettered and incapable of being restricted. The Police authorities and the Corporation have onerous responsibilities to discharge. The former are responsible for traffic control and the prevention of accidents on the road, the latter arc responsible (at least in theory) for making and preserving these arteries of civic life. Therefore, it is by no means unreasonable to confer a degree of control in their hands, so that the number of vehicles of a particular description, using the roads, can be limited. To take an extreme example--if any such restriction is unreasonable it would be impossible to prevent a citizen from introducing tin the roads--say, half a million Rikshaws--so that no other form of vehicular traffic can use the same.
Where then is the line to be drawn? It must be left to the discretion, good sense and administrative experience of the executive authorities, or a public body like the Corporation of Calcutta, to arrive at a figure which constitutes the outer margin of safety. Provided it is done honestly and bona fide, this Court cannot substitute its own views for it.
I am entirely convinced that the respondents have acted honestly, I find them eager and anxious tomeet the petitioners half-way, & do what they can, provided it is within the law. They cannot however be made responsible for limitations imposed by the law itself. Those are matters of policy with which they are not concerned and which are beyond their competence.
13. I hope however that the Government would take early steps to see that the legislation upon the subject is suitably altered to meet the new situation, and that power is granted upon the registering authority to grant Zonal licences.
14. Mr. Biswas, on behalf of the petitioners, has referred to the cases of -- 'Chintaman Rao v. State of M. P.', : 1SCR759 , -- 'Rashid Ahmed v. Municipal Board, Kairana', : 1SCR566 and -- 'T.B. Ibrahim v. R. T. A. Tanjore', : 4SCR290 .
15. In all these cases, it has been held that where the effect of a restrictive legislation, totally prevents a citizen from carrying on a trade, business or a profession, such a restriction is unreasonable and void. Here however, there is no total prohibition. It is not as if the authorities have decided that no Rikshaws within Tollygunj can ever be plied. They have fixed a limit. As the registered licence holders within that prescribed number, cease to ply their Rikshaws, others will step into their place and stead, and the petitioners cannot be said to be prevented from carrying on their business totally and for all times to come.
I therefore hold that Sections 8 and 9 of the CalcuttaHackney Carriage Act, 1919 and by-law 13-A,framed under power granted by Section 71 of the Act,are infra vires and valid. There is no other pointpressed on behalf of the petitioners and for thereasons stated, this application must be dismissed,The Rule is discharged and interim orders vacated.There will be no order as to costs.