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HIGH COURT OF CALCUTTA
P. B. MUKHARJI, H. K. BOSE, P. N. MUKHERJEE
PASCHIM BANGA MALBAHI CYCLE MAZDOOR UNION - Appellant
Versus
COMMISSIONER OF POLICE, CALCUTTA - Respondent
Original Side Matter 36 Of 1959
Decided On : JULY 1, 1960
The Court held that the impugned sections of the Calcutta Police Act and Calcutta Suburban Police Act and the notifications issued thereunder were valid and constitutional. The Court held that the impugned sections were not void as infringing Article 19 (1) (g) because the prohibition of plying of cycle-carts in particular streets or places was only an act of regulation of the general traffic in the interest of the public, and the individual interest must yield to the general public interest. The Court also held that the impugned sections were not void as infringing Article 31 (2) of the Constitution or Section 299 (2) of the Government of India Act, 1935, as they were enacted in 1948 when Section 299 of the Government of India Act, 1935 was in force, and they were "existing laws" within the meaning of that expression as defined in Article 360 (10) of the Constitution.
Fact of the Case:
The petitioners challenged the validity of Section 61a of the Calcutta Police Act 1866 and Section 38a of the Calcutta Suburban Police Act 1866 which were incorporated in the two Acts, in 1948 by Ss. 2 and 3 of the Calcutta and Suburban Police (Amendment) Act 1948 (West Bengal Act XXXV of 1948), and also of a Notification issued by the Commissioner of Police, Calcutta on 12-3-1959 in exercise of his powers under the said two sections of the Calcutta Police Act and Calcutta Suburban Police Act, banning the plying of Cycle-carts in the town of Calcutta and its suburbs.
Finding of the Court:
The Court held that the impugned sections of the Calcutta Police Act and Calcutta Suburban Police Act and the notifications issued thereunder were valid and constitutional. The Court held that the impugned sections were not void as infringing Article 19 (1) (g) because the prohibition of plying of cycle-carts in particular streets or places was only an act of regulation of the general traffic in the interest of the public, and the individual interest must yield to the general public interest. The Court also held that the impugned sections were not void as infringing Article 31 (2) of the Constitution or Section 299 (2) of the Government of India Act, 1935, as they were enacted in 1948 when Section 299 of the Government of India Act, 1935 was in force, and they were "existing laws" within the meaning of that expression as defined in Article 360 (10) of the Constitution.
Issues: 1. Whether the impugned sections of the Calcutta Police Act and Calcutta Suburban Police Act and the notifications issued thereunder were valid and constitutional? 2. Whether the impugned sections were void as infringing Article 19 (1) (g) of the Constitution? 3. Whether the impugned sections were void as infringing Article 31 (2) of the Constitution or Section 299 (2) of the Government of India Act, 1935?
Ratio Decidendi: 1. The Court held that the impugned sections of the Calcutta Police Act and Calcutta Suburban Police Act and the notifications issued thereunder were valid and constitutional. 2. The Court held that the impugned sections were not void as infringing Article 19 (1) (g) because the prohibition of plying of cycle-carts in particular streets or places was only an act of regulation of the general traffic in the interest of the public, and the individual interest must yield to the general public interest. 3. The Court also held that the impugned sections were not void as infringing Article 31 (2) of the Constitution or Section 299 (2) of the Government of India Act, 1935, as they were enacted in 1948 when Section 299 of the Government of India Act, 1935 was in force, and they were "existing laws" within the meaning of that expression as defined in Article 360 (10) of the Constitution.
Final Decision: The Court discharged the Rules and vacated the interim orders.
( 1 ) WE are unanimous that the Rule in this case must be discharged.
( 2 ) THIS is a petition by the Union of Cycle Carts Workers known as "paschim Banga Malbahi Cycle Mazdoor Union "for a writ of Mandamus against the Commissioner of Police under Article 226 of the Constitution, for directing him not to give effort to or to withdraw or cancel his notifications dated the 12th February, 1959 under Section 61a of the Calcutta Police Act 1866 and Section 38a of the Calcutta Suburban Police Act 1866. It also claims for writs of certiorari and prohibition. There is a similar application with the title Bijon Krishna Mukherji v. Commissioner of Police raising the very same questions. Both these applications have been referred to this Special Bench of this Court for their disposal and for determination of the points raised. The parties and counsel in both these matters agree that they may be disposed of by one judgment.
( 3 ) THE impugned notification dated 12-3-1959 under Section 61a (1) of the Calcutta Police Act 1866 reads as follows:"in exercise of the powers conferred on me by Sub-section (1) of Section 61a of the Calcutta Police Act 1866 (Bengal Act IV of 1866), I, Slid U. Mukharji, Commissioner of Police, Calcutta, do hereby prescribe, with die previous consent of the State Government, the type of vehicles described in the Schedule below as vehicles which shall not be driven or used in the streets or public places within the limits of the town of Calcutta as defined in Section 3 of the said Act: schedule. TYPE OF VEHICLES. Tricycles with platform bodies attached to the back for carrying goods with or without passengers and registered as carts, commonly described as cycle carts or cycle crates. Sd/- U. Mukharji, commissioner of Police, Calcutta".
( 4 ) THERE is a similar notification of the same date under Section 38a (1) of the Calcutta Suburban Police Act 1866 in respect of same type of vehicles within the limits of the suburbs of the town of Calcutta under Section (1) of the Calcutta Suburban Police Act (sic ).
( 5 ) THE main grounds on which this order is challenged are: (1) That the said Section 61a of the Calcutta Police Act 1866 and Section 38a of the Calcutta Suburban Police Act 1866 are ultra vires the Constitution being in violation of Articles 19 (1) (g), 13, 14 and 31 of the Constitution. (2) That the authorities concerned did not give any opportunity to the petitioners to represent theft case and as such the notification is against the principles of natural justice and therefore is illegal and without jurisdiction. (3) That the notification contravenes the provisions of Section 224 of the Calcutta Municipal Act and that so long as licence duly granted by the Calcutta Corporation is not revoked and/or cancelled and so long as the same is in force, the impugned notification is not binding and has no effect in law and that the said notification is in direct conflict with the Calcutta Municipal Act 1951 which is later Act and is therefore bad and illegal.
( 6 ) THE facts and the main controversy in these applications lie within a small compass. It appears that from September, 1958 the licence department of the Calcutta Corporation started registering these vehicles called the "cycle carts" under Section 224 of the Calcutta Municipal Act. There is some controversy about the actual date and we are informed by the counsel for the Corporation that the registration of the first cycle cart was on 29-12-1958. The ban on these' carts came on 12-3-1959 within a few months of their appearance on the road. The licences were given by the Calcutta Corporation under Ss. 218 and 219 of the Calcutta Municipal Act J951 for the "trade or calling of cycle carts owner". These licences were in force till 31-3-1959. The petitioners' case is that they have paid the registration and licence fees in respect of these cycle carts to the Calcutta Corporation. By this ban of the Police Commissioner the petitioners complain
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