Devendra Prasad v. State Of Bihar — 1976 DIGILAW 198 (PAT)

Judgment SARWAR ALI, J. 1. In this writ application the petitioners challenged the validity of the Bihar Cycle-Rickshaw (Regulation of Licence) Ordinance, 1976 (Bihar Ordinance No. 141 of 1976) (hereinafter referred to as the Ordinance). They further pray that the respondents be restrained from acting in pursuance of the said Ordinance. 2. The writ petitioners claim that they carry on rickshaw business within the limits of Patna Municipal Corporation. They own a number of cycle-rickshaws which are let out by them to different rickshaw-pullers on hire. Those rickshaws are registered in the petitioners name. They claim that the impugned Ordinance is ultra vires Article 301 as also Article 31 of the Constitution. 3. The Ordinance states, in its preamble : "AND WHEREAS, the Governor of Bihar is satisfied that circumstances exist which render it necessary for him to take immediate action to regulate the issue of licences in order to prevent exploitation of the cycle-rickshaw drivers by cycle rickshaw owners and ameliorate their condition." Sec.1 states that the Ordinance shall come into force on such date and in such municipal areas as the State Government may by a notification appoint. Cycle-rickshaw has been defined in Sec.2 (a) which is as follows:- "(a) "Cycle-rickshaw" means a three-wheeled cycle-rickshaw driven by manual labour and includes all its components and accessories." Sec.3 which is the most important section for the purpose of this case may be quoted in full. It is as follows :- "Certificate of registration for cycle-rickshaws :- (i) Notwithstanding anything contained to the contrary in the Bihar and Orissa Municipal Act, 1922 or the Patna Municipal Corporation Act, 1951 or any rule or order or bye-laws made thereunder or any other laws for the time being in force, no owner of a cycle-rickshaw shall be granted any certificate of registration nor his certificate shall be renewed by any municipal authority after the commencement of this Ordinance unless the rickshaw is to be plied by such owner by himself. (ii) A certificate of registration granted or renewed prior to the commencement of this Ordinance shall stand revoked if it does not conform to the provisions of this Ordinance." The effect of this provision is that (subject to exception as stated in Sec. 4) a cycle-rickshaw can only be plied by a person who is owner of the rickshaw. (ii) A certificate of registration granted or renewed prior to the commencement of this Ordinance shall stand revoked if it does not conform to the provisions of this Ordinance." The effect of this provision is that (subject to exception as stated in Sec. 4) a cycle-rickshaw can only be plied by a person who is owner of the rickshaw. It is only such a person who can be granted certificate of registration or whose certificate of registration can be renewed. The net effect of this section is that a person who wants to own a rickshaw and then ply it on hire cannot do so after the Ordinance has been applied to a municipal area in question. Sec. 4 gives exemptions from the aforesaid provision in respect of certain persons as enumerated therein. Sec. 5 is the penal section. It, inter alia, states that any person found in possession of cycle-rickshaw without a certificate of registration in conformity with Sec.3 shall be punishable with imprisonment which may extend to three months. On conviction of an offence in respect of a cycle-rickshaw, the cycle-rickshaw has to be forfeited. 4. The Ordinance was promulgated on 8-5-1976 after obtaining the assent of the President of India. The State Government decided to enforce the Ordinance in seven divisional towns of the State including Patna. The relevant notification in that context was issued on 14.06.1976. Thus rickshaw-owners had more than one month to adjust their affairs in conformity with the provisions of the Ordinance. 5. The first contention that has been raised on behalf of the petitioners is that the Ordinance in question is ultra vires Article 301 of the Constitution. It is contended that the Ordinance operates to restrict the trade or business of the petitioners. It thus violates Article 301 of the Constitution. It is accepted that although the sanction of the President had been obtained under the proviso to Cl. (1) of Article 213 of the Constitution and thereby fulfilling the requirement of the proviso to Article 304 (b) of the Constitution, the impugned Ordinance does not impose reasonable restriction as envisaged in Article 304 (b) and thus is not covered by the aforesaid Article. The learned Government Advocate on the other hand contended that the Ordinance in question was regulatory and, therefore, outside the purview of Article 301. The learned Government Advocate on the other hand contended that the Ordinance in question was regulatory and, therefore, outside the purview of Article 301. Alternatively, it was contended that the Ordinance imposes reasonable restriction on freedom of trade and business and is thus protected by Article 304 (b). Article 301 of the Constitution is as follows :- "Subject to the other provisions of this part trade commerce and intercourse throughout the territory of India shall be free." 6. Article 304, so far as is relevant may also be quoted : "Notwithstanding anything contained in Article 301 or 303, the legislature of a State may by law : (b) impose such reasonable restriction on the freedom of trade, commerce or intercourse with or within that State as may be required in public interest : Provided that no Bill or amendment for the purposes of Clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President." 7. It is now well settled that the freedom guaranteed under Article 301 is not an absolute freedom. It will be infringed only if : (a) A restriction is imposed, as distinguished from a regulation which in reality facilitates trade, commerce or intercourse; (b) Such restrictions must directly or immediately affect that rights guaranteed under Article 301 of the Constitution; (c) Such restriction must not be covered by any of the provisions of Articles 302 to 305. (See Atiabari Tea Co. V/s. State of Assam, ( AIR 1961 SC 232 at p. 249) and Automobile Transport V/s. State of Rajasthan, (1963) 1 SCR 491 at pp. 523 and 533 = ( AIR 1962 SC 1406 at pp. 1420 and 1424)). 8. It is not necessary to consider the argument of the learned Government Advocate that the impugned legislation is regulatory, as in my view, the legislation is saved in view of Article 304 (b) of the Constitution. I must, however, state that I have grave doubts whether the argument that the legislation is regulatory can be accepted. 9. It is, therefore, necessary to examine whether the Ordinance in question imposes reasonable restriction on the freedom of trade and business in public interest. In deciding the question of reasonableness it is permissible in my view, to take into account matters of common knowledge. 10. 9. It is, therefore, necessary to examine whether the Ordinance in question imposes reasonable restriction on the freedom of trade and business in public interest. In deciding the question of reasonableness it is permissible in my view, to take into account matters of common knowledge. 10. Many years ago when hand-driven rickshaws came on the Indian scene, during the colonial rule there were protests against its introduction. The main ground of protest was that such a mode of conveyance was against the dignity of human labour. Further that it was a source of health-hazard to those who plied it. Nothing effective appears to have been then done to deal with the problem. Later cycle-rickshaws came on the scene, particularly because of the transport problem and large scale unemployment. From time to time social workers, sociologists and others have been protesting against their use. Time and again there has been demand for abolition of rickshaws both hand-driven and cycle-rickshaws. In the meantime, at least in this State, use of cycle-rickshaws started coming in vogue in more and more towns. Now the number of people involved in driving cycle-rickshaws, either whole time or part time, is so large that the abolition will create more problems than it will solve. Nevertheless the problem of health hazard to the rickshaw pullers as also their exploitation by rickshaw owners is, it is plain, real. Something had to be done at least, to alleviate the situation particularly in view of the directive principles of State policy. Art. 39 (e) of the Constitution says that the State shall direct its policy towards securing that health and strength of workers are not abused and that they are not forced by economic necessity to enter avocation unsuited to their strength. Art. 43 of the Constitution states that the State shall endeavour to secure by suitable legislation to all workers such conditions of work as ensures a decent standard of life and full enjoyment of leisure and social and cultural opportunities. The plight of rickshaw-drivers, their conditions of work and the manner in which they were exploited has been briefly explained in the counter-affidavit that has been filed on behalf of the State. It has been stated as follows :- "............most of the rickshaw pullers belonged to rural areas who have very little land or no land of their own. The plight of rickshaw-drivers, their conditions of work and the manner in which they were exploited has been briefly explained in the counter-affidavit that has been filed on behalf of the State. It has been stated as follows :- "............most of the rickshaw pullers belonged to rural areas who have very little land or no land of their own. They in order to supplement their source of livelihood flock to towns, and take recourse to rickshaw pulling. They were forced to work for eight to ten hours a day and they had to pay a sum of Rupees 3 to 6, according to the arrangement between the pullers and the owner. They were forced to work even during illness, and if they refused to work, the owners compelled them to pay the charges. There were stories of rickshaw-pullers being beaten up in case they did not pay the daily charges. Besides this the rickshaw pullers had no permanent abode and they were forced to sleep on the pavements or to pass their night on the seat of the rickshaws. The income left to the rickshaw pullers after payment to the owners was not even sufficient for their diet and medicines. They were thus forced to take unhygenic food from the roadside shops where bread or satu were kept exposed for sale." It is a matter of common knowledge that diseases like tuberculosis is common amongst the rickshaw-pullers. It was because of the force of circumstances that they had to work under such conditions and for such hours that was detrimental to their health. 11. It was in this situation that the State decided to intervene in order to remedy and reduce, if not eliminate, the problem. It enacted the impugned Ordinance. The simple effect of its provisions is that only those (subject to exceptions in Sec. 4) who own rickshaws could ply them. The obvious advantage of the situations may be examined. There would be no exploiter on the scene. The owners could and would ply the rickshaws consistent with their strength and capacity to work. They would not necessarily (unless they so chose) have to work in the scorching and unbearable heat of the summer. They do not now have to work "in thunder, lightening and in rain" a situation which they, from the very force of circumstances, could not avoid during the pre-Ordinance period. They would not necessarily (unless they so chose) have to work in the scorching and unbearable heat of the summer. They do not now have to work "in thunder, lightening and in rain" a situation which they, from the very force of circumstances, could not avoid during the pre-Ordinance period. The ownership of cycle-rickshaws has brought about a psychological change as well. It has added dignity in their work. A rickshaw-owner driver can now feel that he works for himself. And incidentally, the care and attention paid by a rickshaw driver to the rickshaw itself, which will now be borne out of a sense of belonging, would be responsible for better upkeep, and avoidance of impairment of parts of the simple machine he would be handling. All these clearly show, in my view, that the legislature is acting in public interest. The restriction imposed by the impugned Ordinance on freedom of trade or business is thus protected under Article 304 (b) of the Constitution. 12. The learned counsel for the petitioners contended that the restriction imposed by the impugned legislation was excessive in nature, and beyond what is required in the interest of the public. He relied on the well known and, if I may say with respect, classical observation of Patanjali Shastri, C. J. in State of Madras V/s. V. G. Row, ( AIR 1952 SC 196 ) : "The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict." This contention has net been raised in the writ application, nor in the affidavit in reply to the counter-affidavit filed in this case. What has been asserted in the writ application is that the Ordinance and the Notification are not in the public interest. In deciding the question of excessive nature of restrictions, or indeed of reasonableness, Courts, however, cannot lightly interfere with the legislative judgment. What has been asserted in the writ application is that the Ordinance and the Notification are not in the public interest. In deciding the question of excessive nature of restrictions, or indeed of reasonableness, Courts, however, cannot lightly interfere with the legislative judgment. Although it is true that under our constitutional Scheme the legislature cannot finally decide the question of reasonableness on the extent of restriction, it has to be kept in mind that the legislature knows and appreciates the needs of the people and that the elected representatives of the people have in authorising the imposition of restrictions considered them to be necessary and reasonable. In this case it is clear that no piecemeal action would have solved the basic problem. Even if at a given point of time the rickshaw drivers were provided with assistance to purchase the rickshaws and ply them, it might have solved the problem for such persons. But if the system of getting rickshaws plied on hire through other persons was not put an end to another group of rickshaw drivers, visited with same problems, which was sought to be eradicated, would be created. The legislature in its wisdom has thought that in order to effectively deal with the problem it was necessary to have provisions as enacted in the impugned Ordinance. It cannot be said that the same are excessive or beyond the exigencies of the situation. It is thus not possible to accept even the second contention raised on behalf of the petitioners. 13 It was lastly contended that the legislation militates against the property right guaranteed under Article 31 of the Constitution. This argument, in my view, is misconceived. Here, there is no question of the petitioners being deprived of their property. The petitioners could and did dispose of the cycle-rickshaws that they owned during the interregnum of the enactment of the law and its application to the seven divisional towns. 14. Learned counsel also attacked the definition of cycle-rickshaw and pointed out that the possession of components or accessories of cycle-rickshaw was an offence. Thus he suggested that possession for instance, of cycle-rickshaw seat or a bell was also made an offence. I do not think that the interpretation put by the learned counsel on the definition is correct. 14. Learned counsel also attacked the definition of cycle-rickshaw and pointed out that the possession of components or accessories of cycle-rickshaw was an offence. Thus he suggested that possession for instance, of cycle-rickshaw seat or a bell was also made an offence. I do not think that the interpretation put by the learned counsel on the definition is correct. The effect of Sec.3 of the Ordinance read with the definition is that no one could own and possess a cycle-rickshaw unless he got it registered in accordance with the provisions of the Ordinance, and could not get over the law by dismantling the cycle-rickshaw and thus possessing it in a dismantled state. It is not possession of each and every component which may be used or may be capable of use in a cycle-rickshaw which is covered by the definition. 15. An affidavit has also been filed stating that after promulgation of the Ordinance the petitioners have transferred the ownership of the rickshaws to the rickshaw-drivers and they are no more carrying on their rickshaw business. The suggestion is that the petitioners having sold their rickshaws are not entitled to challenge the Ordinance by way of filing a writ application in the High Court. This point need not be considered as I have already held that the Ordinance is a valid piece of legislation. 16. In the result, this application is dismissed, but without costs. R.P.SINHA, J. 17 I agree.