JUDGMENT 1. THE petitioners, five in number, carry on transportation business byroad, in tracks and lorries, and have; their respective offices and godowns at premises No. 1/a, Burman Street, in the town of Calcutta. The portion of Burman Street between Upper Chitpur Road and Bullav Das Street, within which the petitioners' offices and go-downs are located, is said to be 337 ft. long. About its width there is difference in statements made in the petition and in the affidavit-in-opposition. The petitioners say that the aforesaid portion of the street is 19 ft. wide. Sri Upananda Mukherjee, who, at the material time, was the Commissioner of Police, says in his affidavit-in-opposition that the Street is about 17 ft. wide, excluding the drains on either side. The petitioners used to park their lorries on Burman Street and load and unload their goods from and to their godowns. They say that they have been carrying on this business since about 1959, without hindrance to other vehicular traffic on the road. 2. BY a notification, dated November 22, 1960, which was published in the Calcutta Gazette of December 1, 1960, the respondent Commissioner of Police, ordered that goods vehicles-commonly called lorries, heavy transport vehicles, chassis of the above-mentioned types of motor vehicles, tractors and trailers-shall not be driven on, along, and through Burman Street at all hours and on all days. The above notification was made in exercise of the powers vested in the Commissioner of Police under section 74 of the Motor Vehicles Act (Act IV of 1939) read with Government of West Bengal Home (Transport) Department Order No. 2383 W. T., dated April 9, 1957. The petitioners allege, in the first place, that the aforesaid order of the Commissioner of Police is arbitrary and discriminatory, in that the parking or traffic of lorries in Burman Street never caused accident, inconvenience or obstruction to traffic and while such parking or traffic is allowed in similar or narrower streets in the same locality, Burman Street was arbitrarily singled out for such prohibition. They further contend that section 74 of the Motor Vehicles Act puts an unreasonable restriction on the fundamental right of the petitioners to carry on trade and business, as guaranteed under Article 19 (1) (g) of the Constitution, and as such is ultra vires the Constitution. They further contend that section 74 of the Motor Vehicles Act puts an unreasonable restriction on the fundamental right of the petitioners to carry on trade and business, as guaranteed under Article 19 (1) (g) of the Constitution, and as such is ultra vires the Constitution. They also allege that the notification has caused a total prohibition and extinction of the petitioners' business, which is their property, and that they have been deprived of a very vaulable property without compensation. 3. THE petitioners say that they made diverse representations to the Police Commissioner and to the State Government for withdrawal of the notification, but to no effect. At last, by a solicitor's letter, dated March 15, 1962, they demanded justice from the respondents, but, they say, justice was denied to them. 4. IN these circumstances they moved this court, on April 6, 1962, under Article 226 of the Constitution, asking for a Writ in the nature of mandamus directing the respondents to withdraw, rescind or cancel the notification and obtained this Rule. In the affidavit-in-opposition affirmed by Sri Upananda Mukherjee, it is said that after the parking of lorries and trucks, (which vary in width from 7 to 8 ft.) on Burman Street, there is not enough space left to enable other vehicles to pass through the street without hindrance or obstruction. It is further said that there is no footpath in Burman Street from the junction of Chitpur Road to Bullav Das Street and that pedestrian traffic is very heavy on the road due to the location of a market, a school and residential houses on the street. It is also said that there are nine different transport agencies, which carry on their separate businesses in the street and they park their lorries in the street for the purpose of loading and unloading. There is thus obstruction caused to traffic and danger to public safety. It is said that there has not been a total extinction of petitioners' trade and business, as alleged or at all, nor has there been any deprivation of their property right. It is lastly said that although the restrictions were given effect to since December 1, 1960, the petitioners are still carrying business of transport agency with renewed trade licenses. It is said that there has not been a total extinction of petitioners' trade and business, as alleged or at all, nor has there been any deprivation of their property right. It is lastly said that although the restrictions were given effect to since December 1, 1960, the petitioners are still carrying business of transport agency with renewed trade licenses. According to the affidavit-in-opposition the only difference that the restriction has caused to the petitioners is to carry their goods to a little distance away and to load and unload the same from and to lorries parked either on Chitpur Road or on Ballav Das Street. 5. MR. S. Roy, learned Advocate for the petitioners, chose one only out of the several grounds taken in the petition in support of the Rule, namely, that section 74 of the Motor Vehicles Act was bad for excessive delegation of authority by the State Government and in so far as the delegated authority infringed the fundamental right of the petitioners it was void under the Constitution. In order to understand this argument it is necessary for me to refer to the provisions of section 74 of the Motor Vehicles Act, which I set out below:- "the State Government or any authority authorised in this behalf by the State Government, if satisfied that it is necessary in the interests of public safety or convenience, or because of the nature of any road or bridge, may by notification in the Official Gazette prohibit or restrict, subject to such exceptions and conditions as may be specified in the notification, the driving of motor vehicles or of any specified class of motor vehicles or the use of trailers either generally in a specified area or on a specified road and when any such prohibition or restriction is imposed, shall cause appropriate traffic signs to be placed or erected under section 75 at suitable places: provided that where any prohibition or restriction under this section is to remain in force for not more than one month, notification thereof in the Official Gazette shall not be necessary, but such local publicity as the circumstances may permit, shall be given of such prohibition or restriction. " 6. THE authorization referred to in the section is to be found in Notification No. 2383 W. T., dated April 9, 1957. " 6. THE authorization referred to in the section is to be found in Notification No. 2383 W. T., dated April 9, 1957. published in the Calcutta Gazette of April 25, 1957, and is set out below :- "in exercise of the powers conferred by sub-section (2) of section 71, and sections 73, 74, 75, 76 and 77, sub-section (2) of section 86, sections 88, 90, 129 and 129a of the Motor Vehicles Act, 1939 (IV of 1939), and in suppression of the existing orders on the subject the Governor is pleased hereby to authorise the authorities, persons and police officers within their respective jurisdiction shown in columns 2 and 3 of the table below and for the purpose of the section or sections of the said Act specified against each authorities, persons or police officers in column 4 of the said table. " Provided that the provisions of this notification in so far as they relate to sub-section (2) of section 86 and sections 129 and 129a of the said Act, shall not be applicable in respect of transport vehicles owned and operated by the State Government. The Table Serial No. Designation of the authorities, persons and police officers. Jurisdiction. Section or Sections. 1. 2. 3. 4. 1. Commissioner of Police, Calcutta . Calcutta including suburbs. 71 (2), 74, 75, 76 and 77. By order of the Governor, J. N. Talukdar, Secy. " Mr. Roy argued that section 74 of the Motor Vehicles Act purported to invest the State Government with power to authorise any authority with jurisdiction to restrict the user of any vehicle or any specified class of motor vehicle in any specified area or road. In the instant case the State Government no doubt authorised the Commissioner of Police with authority to exercise the power but nothing prevented the State Government from delegating the power to a much more humbler officer, because there was no qualification prescribed for the authority on whom the exercise of such power may be delegated. The authority, to whom power is delegated, may also at his arbitrary satisfaction exercise the power under section 74 of the Motor Vehicles Act and restrict the use of any vehicle or class of vehicles on the road. Such a procedure, Mr. Roy characterized, was wholly unreasonable and therefore, ultra vires as being beyond the scope of Article 19 (6) of the Constitution. 7. Such a procedure, Mr. Roy characterized, was wholly unreasonable and therefore, ultra vires as being beyond the scope of Article 19 (6) of the Constitution. 7. IN support of his contention, Mr. Roy relied on the observations of a Division Bench of this court in Khagendra Nath De v. District Magistrate West Dinajpur (1) (55 C. W. N. 53), in which Harries, C. J., (Banerjee, J. agreeing with him) struck down the provisions of section 38 of the West Bengal Security Act of 1950 as unconstitutional on the following grounds:- (a) "one of the powers conferred by the Act is the power of making an externment order and clearly by section 38 of the Security Act Government can delegate that power to any officer or authority subordinate to the State Government. Officers or authorities subordinate to the State Government may be officers or authorities of a high standing or they may be officers or authorities of a comparatively lowly kind. The order before us was made by a District Magistrate, who of course is the senior executive officer in a District. He is clearly an officer of Government, but so would be a Sub-Deputy Collector and this section clearly entitles Government to authorize a Sub-Deputy Collector to make an order of externment or indeed to make any of the other orders which the Government are empowered to make under this Act. A Commissioner of Police in the City of Calcutta or a Superintendent of Police in the Mofussil is, I think, clearly an officer or authority subordinate to the State Government and so is a Sub-Inspector. It appears to me that section 33 is framed with enough to allow the Government to authorise a sub-Inspector to make these orders. A Havildar is a lowly and humble officer of Government. He certainly is a servant of Government and I do not think that the term 'officer' has any precise meaning. Servants of Government are frequently classified as gazette or non-gazette officers or ministerial or non-ministerial officers. All are however officers, no matter what the qualifying adjective may be. In any event it seems to me that section 38 is framed in such a manner as would permit Government to delegate their powers to officers who, I think, would be wholly unfitted to be entrusted with the power of making such orders. All are however officers, no matter what the qualifying adjective may be. In any event it seems to me that section 38 is framed in such a manner as would permit Government to delegate their powers to officers who, I think, would be wholly unfitted to be entrusted with the power of making such orders. " (b) "it appears to me that a section which entitles Government to delegate its powers to any officer, subordinate to it irrespective of whether that officer is fit to make such orders is to my mind a procedure which is wholly unreasonable and that being so, this Court must hold that section 38 is ultra vires as being beyond the powers given to the State by cl. (5), Art. 19 of the Constitution. " 8. HE also relied on a judgment of this court in Satchidananda Mukherjee v. State of West Bengal (2) (64 C. W. N. 521), in which Sinha, J. struck down a provision as to delegation of authority under the West Bengal Soft Coke Distribution Order, 1955 with the following observations:- "the power of regulating all dealings in an essential commodity like coal, is a power of such magnitude that it is plain to see that it would be wholly unreasonable to allow this power to be exercised by any and every person whom the Director or the District Magistrate might be pleased to clothe with authority. In my opinion, this provision of law cannot be declared to be a reasonable restriction and must be struck down. " In my opinion this argument is not very well conceived. The Motor Vehicles Act was an existing law when the Constitution came into force. Under Article 13 of the Constitution such a law in so far as inconsistent with or in derogation of the fundamental rights, is to become void to the extent of such inconsistency. The petitioners may have a fundamental right to carry on their transportation business but surely they have not the right to carry on their business to the detriment of traffic and to the danger and inconvenience of the public. Any provision in the Motor Vehicles Act restricting the use of the petitioners' transportation vehicles in the interest of public safety and convenience or because of the nature of any road should be deemed to be reasonable restriction within the meaning of Article 19 (6) of the Constitution. Any provision in the Motor Vehicles Act restricting the use of the petitioners' transportation vehicles in the interest of public safety and convenience or because of the nature of any road should be deemed to be reasonable restriction within the meaning of Article 19 (6) of the Constitution. That was the view which was also expressed by this court in Civil Rule No. 4098 of 1960, Jit Singh v. State of West Bengal (3) unreported. If section 74 of the Motor Vehicles Act is not bad under Article 13, read with Article 19 (1) (g) and clause (6) of the Constitution, as an unreasonable restriction touching on the fundamental rights of the petitioners, then the criticism of Mr. Roy loses much of its force. Section 74 of the Motor Vehicles Act primarily deals with control or restriction of traffic of particular kinds of vehicle. The delegation of authority to control such vehicle or traffic stands on a different footing from the delegation of authority to control or restrict the fundamental rights. Thus was the view which was expressed by a Special Bench of this Court in Paschim Banga Malbahi Cycle Mazdoor Union v. Commissioner of Police (4) (65 C. W. N. 213), in which P. B. Mukharji, J. observed as follows: "the real challenge to the section 61a of the Calcutta Police Act and 38a of the Calcutta Suburban Police Act and the notifications there under is on the ground that they are procedurally unreasonable. In the first place, they are challenged on the ground that the whole matter is left to the subjective satisfaction of the Police Commissioner who need not hear the interest of the owners of the vehicles banned or permit representation from them or give notice to them or give reasons for the ban. To support the argument that the procedure must be reasonable in order to pass the test of Article 19 (1) (g) read with clause (6) of the Constitution, reliance is placed on the decision of Anumati v. A. K. Chatterji, (A. I. R. 1951 Cal. To support the argument that the procedure must be reasonable in order to pass the test of Article 19 (1) (g) read with clause (6) of the Constitution, reliance is placed on the decision of Anumati v. A. K. Chatterji, (A. I. R. 1951 Cal. 90), Khagen v. District Magistrate, Dinajpur (55 C. W. N. 53) and the Supreme Court decision in Dwarkadas v. Sholapur Spinning and Weaving Co., Ltd., (1954 S. C. 674 at page 689), Gurbachan Singh v. The State of Bombay, (1952 S. C. R. 732 at page 742: A. I. R. 1952 S. C. 221 at page 224) dealing with an externment order under section 27 (1) of the City of Bombay Police Act of 1902, Thakur Raghubir Singh v. The Ajmer Court of Wards (1953 S. C. A. 629), Ibrahim Mavat v. The State of Bombay, (1954 S. C. R. 933) dealing with the order of physical removal of Indian citizens under Influx from Pakistan Control Act, 1949. These cases and authorities are distinguishable. Authorities on personal liberty and restrictions thereupon are not, in my view, appropriate tests for judging the validity of executive or administrative action regulating traffic by prescribing permissible types of vehicles on the road. " 9. SINCE I am of the opinion that section 74 of the Motor Vehicles Act does not touch on the fundamental right of the petitioners to carry on business, I do not think that the petitioners have any substantial grievance against the provision of delegation of authority as in the said section. 10. THEN again I do not think that the satisfaction enjoined in section 74 is arbitrary in nature. Such restriction can not be imposed merely at the whim of authorities but may only be done either in the interest of public safety or convenience or regard being had to the nature of any road or bridge. The section itself provides the guidance as to when such power must be used. Unless it is shown that such power was not bonafide exercised, the discretion should be left with the executive administration and the court should not substitute its own view of public safety and convenience or of the nature of fine road or bridge in place of the view of the executive administration. Unless it is shown that such power was not bonafide exercised, the discretion should be left with the executive administration and the court should not substitute its own view of public safety and convenience or of the nature of fine road or bridge in place of the view of the executive administration. In the instant case, the respondent Commissioner of Police thinks that regard being had to the width of the road, lorry and truck traffic in Burman Street impedes pedestrian traffic and movement of other vehicles on the road and constitutes a danger. On the materials on record I am not prepared to take a different view. The story that the petitioners' business is extinct or is likely to be extinct has not been established. Petitioners are still in business at the same locality and there is no evidence to show that their business has suffered even a substantial set-back because of the restriction. 11. MR. B. Das, learned Junior Standing Counsel, invited my attention to another aspect of the case which disentitles the petitioners from getting a relief in this court. The restriction was imposed on December 1, 1960 and this Rule was obtained on April 6, 1962. There is no satisfactory reason given about the delay about a year and a quarter in the matter of moving this application. A writ of Mandamus is not a Writ of right. A person invoking the special jurisdiction of the Court for the extraordinary remedy is required to be diligent. It he comes late and does not give any explanation for the delay he does not become entitled to the remedy. This was the view which was taken by Division Bench of this Court in Satyanarayan Nathani v. State of West Bengal (5) (61 C. W. N. 420) and the view is binding on me. This is an additional reason why this Rule must fail. For the reasons aforesaid this Rule is discharged. I do not, however, make any order as to cost.