Hiralal Shah vs Commissioner of Police, Calcutta

A.C. Sen, J.—The Appellants, who are seven in number, carry on business as owners of handcarts. As amongst them they own about 371 handcarts which are said to be garaged at different places either at Upper Chitpur Road or at Sovaram Bysak Street or at Gangadhar Babu Lane or at Govinda Dhar Lane, all in the town of Calcutta.

The Appellants applied under Article 226 of the Constitution praying for a writ in the nature of certiorari so that a certain notification by the Respondent No. 1, namely, the Commissioner of Police, Calcutta, may be quashed or set aside and also for a writ in the nature of mandamus directing the said Commissioner of Police as well as the State of West Bengal to recall, cancel and withdraw the said notification dated February 19, 1962 and to forbear from giving effect thereto in any manner whatsoever. A Rule was issued on the said petition praying for the aforesaid two writs of certiorari and mandamus. But at the final hearing the said Rule was discharged by B.N. Banerjee, J. by his judgment and order dated July 20, 1962. The present appeal is directed against the aforesaid judgment and order dismissing the aforesaid petition under Article 226 and discharging the Rule nisi issued thereupon.

The question for determination is whether the Commissioner of Police has exceeded his authority u/s 62(1)(b) read with Section 62(2) of the Calcutta Police Act, 1866 and u/s 39(1)(f) read with Section 39(2) of the Calcutta Suburban Police Act, 1866, by issuing the aforesaid notification dated February 19, 1962, purporting to have been issued under the aforesaid two sections, namely, Section 62 of the Calcutta Police Act, 1866 and Section 39 of the Calcutta Suburban Police Act. It is also to be decided whether the said notification is liable to be set aside on the ground that it constitutes an unreasonable restriction on the Appellants'' fundamental right to carry on business guaranteed by Article 19(1)(g) of the Constitution of India.

The relevant portion of the notification issued by the Commissioner of Police, Calcutta, dated February 19, 1962, is quoted below:

In exercise of the powers conferred by Clause (b) of Sub-section (1), read with Sub-section (2) of Section 62 of the Calcutta Police Act, 1866 (Bengal Act IV of 1866) and Clause (b) of Sub-section (1) read with Sub-section (2) of Section 39 of the Calcutta Suburban Police Act, 1866 (Bengal Act II of 1866) and with the previous sanction of the State Government, the Commissioner of Police, Calcutta, makes the following amendments in the rules for the regulation of Traffic in the streets and public places of Calcutta and its suburbs, published with Calcutta Police Notification dated the 13th January, 1950, at pages 63-99 of Part I of the Calcutta Gazette of the 19th January, 1950, as subsequently amended (hereinafter referred to as the said rules):

AMENDMENTS

In Part II of the said rules

After Rule 4 insert the following rule, namely:

4a. Restrictions on Cart Traffic, No bullock, buffalo or handcarts of any description shall proceed in the area or the roads or portions of roads specified below in the Table on all days between the hours of 9 a.m. and 6 p.m. with effect from 15th March, 1962.

THE TABLE

Area above referred to

The area bounded

On the North by Vivekananda Road and Kali Krishna Tagore Street (the streets themselves being excluded); on the East by Chittaranjan Avenue and Chowringhee Road on the South by that portion of Lower Circular Road between Chowringhee Road and St. Georges'' Gate Road; and on the West by St. Georges'' Gate Road and Strand Road.

The Appellants are aggrieved by the restrictions on cart traffic. The said notification says that

no bullock, buffalo or handcarts of any description shall proceed in the area or the roads or portions of roads specified below in the Table on all days between the hours of 9 a.m. and 6 p.m. with effect from 15th March, 1962.

The Petitioners have alleged in the petition under Article 226 that their business has been adversely affected by the said notification and that unless they are allowed to ply their carts within the prohibited area and between the prohibited hours, their business will become totally extinct, because the handcarts are mostly in demand within the prohibited area between the hours of 9 a.m. and 6 p.m. They allege that within the prohibited area are located several booking offices of transportation concerns, offices and godowns of bidi leaf and tobacco merchants, of dealers in spices, food-grains, vegetables, fruits, sugar, ghee, mustard oil, paper, glass, stationary goods, aluminium goods, machine and machinery parts, rope, cement, hide, steel wires, iron goods, corrugated iron sheets, baskets and utensils, as also Katra type markets for wholesale dealers, for example, Raja Katra Market, Posta Market, as also godowns of important mercantile firms like Titagrah Paper Mills, Balmer Lawrie and Co. and Martin Burn and Co. and warehouses of the Port Commissioners and of Calcutta Jetties. According to them, the godowns and warehouses above-mentioned are kept open between 10 a.m. and 4 p.m. within which hours all transportation business there have to be transacted. They further say that transportation of goods to and from the business centres of dealers and merchants above-mentioned have to be made between 6 a.m. and 7 p.m. They further allege that although Howrah and Sealdah Railway Stations are outside the prohibited area, yet goods have to be carried to and from the Railway stations through the prohibited area and that the prohibition has affected their business at the two. Railway stations as well. They further allege that their garages are situated within the prohibited area and that the prohibition has made it impossible for them to take their carts out of their garages during the prohibited hours even for plying elsewhere. They further submit that their carts being immobilized during the all important business hours, their business is threatened with total extinction. Their further case is that, apart from the carts belonging to them, there are approximately 6,000 handcarts belonging to other persons whose entire business in plying the hand-carts is confined within the prohibited area.

The Commissioner of Police in his affidavit in opposition states that the aforesaid notification was made after giving the owners of handcarts reasonable opportunity of making representation against the proposed action restricting the movement of handcarts. He admits that the major part of the trade and commerce in the city is carried in the area specified in the notification which he has described as ''the central business district of the city''. He has also admitted that most of the mercantile offices in the city are located in the prohibited area. Nevertheless, he has justified the notification on the following grounds:

(i) That there has been a tremendous growth of trade and population in the city of Calcutta, particularly after August 15, 1947. The number of automobiles in the city has increased from 38,385 in 1947 to 77,515 in June, 1961, without corresponding increase in road mileage.

(ii) The major part of business and offices are located in this area and the pedestrian traffic which is of a huge volume in this area is increasing very fast.

(iii) The area under notification is the central business district of the city. Over 40% of the total number of registered vehicles in Calcutta passed through this area from 9 a.m. to 6 p.m. The recent, traffic census undertaken by the Traffic Department of the Calcutta Police Force indicates that most of the roads and junctions with the restricted area operate far beyond desirable capacity during the restricted hours.

(iv) The road intersections in notified area are finding it very difficult to carry the existing flow because of the large number of handcarts, bullock carts, buffalo carts. The handcarts, bullock carts and buffalo carts, because of their slow speed and fl lesser maneuverability, slow down the entire traffic streams at such intersections thereby reducing the overall capacity of the road system.

(v) The hand-carts etc. are responsible for slow downs and stoppages of the traffic flow because of their low speed and bad maneuverability. This results in very slow speed of trams and buses and appreciable loss in journey time by the people who use such traffic.

(vi) Traffic jams are very frequent due to the handcarts, bullock carts and buffalo carts thereby resulting substantial loss of working hours.

(vii) The handcarts, bullock carts and buffalo carts occupy large area of space while moving or remaining stationery and they also cause serious obstruction to traffic flow due to irregular parking and loading and unloading of goods in important streets.

(viii) The pullers of hand-carts and drivers of bullock carts and buffalo carts who are not required to take any licence of competency are ignorant of traffic rules and on account of the ignorance they increase the chances of accident on the road and cause traffic congestion.

The Appellants in their affidavit-in-reply simply deny that the traffic jams are very frequent due to the hand-carts, as alleged in the affidavit of the Police Commissioner. They say that various other types of vehicles and automobiles are as much responsible for congestion, slow down and traffic jams as the handcarts are. In para. 15 of their affidavit-in-reply they stated as follows:

We deny that the hand-carts cause serious obstruction to traffic flow because they occupy large area of space while moving or remaining stationery as alleged therein. We say that various automobiles like trucks, lorries and trailers occupy much more space than the handcarts or bullock carts. In fact, the handcarts can be parked and are usually parked one on top of the other and consequently occupy very small space while stationery. We deny that the pullers of the handcarts are ignorant of traffic rules or that they increase the accident risk on the road or cause traffic congestion any more than the other types of the vehicles on the road.

It appears from their affidavit-in-reply that they also admit that there is serious traffic congestion within the prohibited area.

From what has been Stated above it cannot be seriously disputed that some sort of regulation is necessary in order to relieve congestion within the prohibited area. It is also clear that the aforesaid notification restricting the movement of bullock and hand-carts was issued with the object of regulating traffic. The material portion of Section 62 of the Calcutta Police Act, 1866, runs as follows:

62(1): with the previous sanction of the State Government the Commissioner of Police may after previous publications, from time to time, make rules:

(a) ... ... ... ...

(b) regulating traffic of all kinds in streets and public places and the use of streets and public places by persons riding, or driving, leading or riding in vehicles, or leading or accompanying cattle, or walking so as to prevent danger, obstruction or inconvenience to the public;

(c) regulating the conditions under which vehicles may remain standing in streets and public places and the use of streets as halting places for vehicles or cattle;

(d) to (j) ... ... ... ...

(2) Any rules made under this section may, with the like sanction, be altered or rescinded by the Commissioner of Police after previous publication of the alteration or rescission.

* * * *

Section 39(1)(b) and (c) and Section 39(2) of the Calcutta Suburban Police Act, 1866 are couched in the same language as quoted above.

The business of the Appellants as handcarts owners is no doubt likely to be affected as a result of the aforesaid notification but the question is whether the notification can be challenged simply because it is likely to affect or has in fact adversely affected the interest of the Appellants. It is clear that in pith and substance the notification is one for regulation of traffic. The Commissioner of Police has no intention to regulate vehicles. The plying of certain vehicles including handcarts has been prohibited between certain hours solely for the purpose of relieving congestion in traffic. It may be that on account of such regulation or restriction the interest of the Appellants as owners of handcarts has been adversely affected. That is merely an indirect consequence of the notification. In our opinion if the notification in pith and substance is one for regulation of traffic it cannot be struck down simply because inconvenience may be caused to the Appellants as one of the indirect consequences of the said notification.

It is contended by Mr. Meyer on behalf of the Appellants that in the name of regulating traffic the Commissioner of Police has totally prohibited the movement of handcarts within the prohibited area. In other words, he contends, the Commissioner of Police, in the name of exercising the power u/s 62 of the Calcutta Police Act and Section 39 of the Suburban Police Act, has in fact exercised the power u/s 61A of the Calcutta Police Act and Section 38A of the Calcutta Suburban Police Act. The material portion of Section 61A of the Calcutta Police Act is as follows:

61A(1): with the previous sanction of the State Government, the Commissioner of Police may, from time to time, by notification in the official gazette, prescribe types of vehicles which shall not be driven or used in streets or public places.

The material portion of Section 38A of the Calcutta Suburban Police Act, 1866, is also substantially the same. Mr. Meyer contends that if the Commissioner was bent upon prohibiting the movement of handcarts within the notified area he should have issued notification u/s 61A of the Calcutta Police Act and Section 38A of the Calcutta Suburban Police Act. We cannot accept this contention of Mr. Meyer, because the impugned notification does not say that the handcarts shall not be driven or used within the prohibited area. It merely restricts the movement of handcarts between the hours of 9 a.m. and 6 p.m. There are sufficient materials on record to show that the hours between 9 a.m. and 6 p.m. are the peak hours so far as the flow of traffic is concerned. There are also materials on record to show that considerable impediment to the even flow of traffic is caused by handcarts as well as by bullock and buffalo carts. If we bear in mind the question of traffic then it cannot be gainsaid that for the purpose of ensuring an even flow of traffic during peak hours some sort of restriction has got to be imposed upon the slow moving vehicles like the bullock, buffalo or handcarts.

The matter may be looked at from another point of view. Once it is conceded that there is congestion of traffic some sort of regulation is imperative in order to relieve the congestion. And traffic cannot be regulated without imposing some sort of restriction on the movement of vehicles, animals or pedestrians. It may be necessary to impose restrictions only on a particular type of vehicles and not on all types; or, different kinds of vehicles may have to be restricted differently. The way or ways in which restriction is to be imposed cannot be decided by the Court. That must be decided by the authority entrusted with the duty, in the present case, by the Commissioner of Police. If the Commissioner thinks that the most effective way of relieving the traffic congestion within the notified area is to restrict the movement of handcarts during the peak hours of traffic, he is certainly competent to do so in exercise of his powers u/s 62 of the Calcutta Police Act and Section 39 of the Calcutta Suburban Police Act. It cannot be said that the impugned notification is on the face of it in excess of the powers conferred on the aforesaid sections of the aforesaid Acts. Nor can it be said on the facts disclosed in the affidavit of the Police Commissioner, not seriously disputed by the Appellants, that the real object of the Commissioner is not to prohibit the plying of handcars within the notified area with a view to prohibiting the business of the Appellants and other owners of handcarts. In other words, it cannot be said that the real object of the Commissioner is to prescribe that handcarts shall not be driven or used in the streets within the notified area and not the regulation of traffic. Therefore, we are riot prepared to accept the argument on behalf of the Appellants that the Commissioner of Police exceeded his powers u/s 62 of the Calcutta Police Act and Section 39 of the Calcutta Suburban Police Act by making the impugned notification.

It is next argued by Mr. Meyer on behalf of the Appellants that there is no justification for imposing restrictions on the movement of handcarts within the notified area on Saturdays and Sundays and that the Commissioner has exceeded his authority by not excluding Saturdays and Sundays from the notification. Para. 6 of the supplementary affidavit-in-opposition of Pratap Chandra Bose, however clearly establishes the justification for including Saturdays and Sundays in the notification. The said paragraph runs thus:

I further say that the volume of traffic on Saturdays are not less from such volume of weekdays. As a matter of fact, on Saturdays there is an increase of total volume of traffic. I admit that on Sundays the volume of traffic is a little less than such volume on an average weekday. I say that such reduction is not more than 10% of the volume on an average weekday.

To the same effect is para. 3 of the affidavit of the Inspector-General of Police affirmed in pursuance of the direction given by the trial Court on April 18, 1962. It may also be pointed out that in the original petition under Article 226 of the Constitution on which the Rule nisi was issued there is no averment to the effect that the volume of traffic on Saturdays and Sundays are substantially less than that on other weekdays. This contention of Mr. Meyer is, therefore, overruled.

The notification is challenged also on the ground that it is violative of Article 19(1)(g) of the Constitution. It should be borne in mind that the object of the impugned notification is the regulation of traffic and not the regulation of the business of the Appellants in plying handcarts for the carriage of goods. It cannot be said that the restriction is unreasonable so far as the regulation of traffic is concerned. Moreover, the impugned notification, in so far as it tends to regulate traffic, does not and has not the intention of interfering with anybody''s right to carry on any trade or business. Hence Article 19(1)(g) is not at all attracted. But what is complained of is that as a result of the impugned notification, avowedly made for the purpose of regulating traffic, the business of the Appellants in plying handcarts has lost all its commercial value. In other words, it is contended, the restriction imposed upon handcarts has virtually made it impossible for the Appellants to carry on their business and therefore, the notification imposing the restriction complained of is violative of Article 19(1)(g). It cannot be doubted for a moment that the restriction on the movement of handcarts as well as bullock and buffalo carts has been imposed in the interest of the public with a view to relieving traffic congestion. The argument on behalf of the Appellant is that the restriction is unreasonable from the point of view, of the business carried on by the Appellants, because under the guise of restriction there has been a total prohibition of their business, at least in a commercial sense. The notification on the face of it does not totally prohibit the plying of handcarts in the notified area. The learned trial Judge has pointed out that it is still possible for the Appellants and other owners of handcarts to carry on their business within the notified area, because before and after the prohibited hours handcarts may ply within the said area as freely as before. Moreover, one cannot ignore the possibility of the Appellants plying their handcarts outside the notified area as freely as before. Moreover, it has been pointed out by the learned Counsel on behalf of the Respondents that the two important Railway stations, namely, Howrah and Sealdah, are outside the notified area. Mr. Meyer, however, argues that because of the restriction imposed by the impugned notification there is little chance of exploiting the possibilities afforded by the said two Railway stations. Even assuming the correctness of Mr. Meyer''s argument the overall picture is that it is still possible for the Appellants to carry on their business outside the notified area and also within the notified area before and after the prohibited hours. So it cannot be said that under the guise of restriction there has been a total prohibition of the business of the Appellants.

But even assuming that the impugned notification has the effect of imposing total prohibition, though not actually but from a commercial point of view, on the plying of handcarts within the notified area even then, in my opinion, it cannot be said that the notification is violative of Article 19(1)(g) read with Article 19(6) of the Constitution. First of all, as has been already pointed out, the object of the notification is to regulate traffic and not to interfere with any-ones''s right to carry on trade or business and therefore, Article 19(1)(g) is not attracted. Next, even though the notification imposes restrictions on the Appellants'' right to carry on their business of transporting goods in handcarts thereby attracting Article 19(1)(g) of the Constitution it cannot be said that the restrictions are unreasonable. As has been pointed out by P.B. Mukharji, J. in Paschim Banga Malbahi Cycle Mazdoor Union and Others Vs. Commissioner of Police, Calcutta and Others, , following the decision of the Supreme Court in Narendra Kumar and Others Vs. The Union of India (UOI) and Others, , the word ''restriction'' in Article 19(6) of the Constitution includes the case of total prohibition also. If that be so, once it is established that restriction amounting virtually to prohibition is in the interest of the general public and that it is reasonable the restriction cannot be said to be violative of Article 19(1)(g). In the present case, from the point of view of regulation of traffic, it cannot be said that the restriction imposed upon handcarts by the impugned notification is unreasonable. In my opinion the question of reasonableness is to be decided not from the point of view of the persons whose trade or business is injuriously affected but from the point of view of the general public. For example, if for reasons of health the sale of certain articles, meant for human consumption, is prohibited or restricted, the prohibition or restriction cannot be said to be unreasonable from the point of view of the general public, however unreasonable it may appear to the persons dealing in those goods. That the impugned notification is in the interest of the general public also cannot be doubted for a moment. I am, therefore, of opinion that the impugned notification is not violative of Article 19(1)(g).

An attempt was made to challenge the vires of the notification on the ground that it is violative of Article 14 of the Constitution. It was contended before the trial Court that while traffic in handcarts and buffalo carts was totally restricted in the notified area during the prohibited hours, the restriction was not made applicable to equally slow-moving vehicles like rickshaws. The learned trial Judge dealt with the argument and found no difficulty in rejecting the same. The same argument has been advanced before us. We fully agree with the views expressed by the learned trial Judge. We would like to go a step further. There is no averment in the petition on which the Rule nisi was issued that the handcarts and rickshaws are equally circumstanced so far as the regulation of traffic within the notified area is concerned. As a matter of fact there is no mention of rickshaws in the said petition. In our opinion, the Appellants are not entitled to urge this point which involves a mixed question of law and fact.

The vires of Section 62 of the Calcutta Police Act and Section 39 of the Suburban Police Act has not been challenged before us. Therefore, we are expressing no opinion on that point. Mr. Meyer says that he is reserving the right of agitating this question if and when the occasion arises.

As we have overruled all the contentions of Mr. Meyer on behalf of the Appellants, the appeal must be dismissed.

We, accordingly, pass the following order.

The appeal be and is hereby dismissed.

There will be no order as to costs.

Bachawat, J.

I agree.