P.B Mukharji, J.:— 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 effect to or to withdraw or cancel his notifications dated the 12th March, 1959 under section 61A of the Calcutta Police Act, 1866 and section 38A of the Calcutta Surburban 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. The impugned notification dated 12th March, 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, Shri U. Mukharji, Commissioner of Police, Calcutta, do hereby prescribe, with the 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 cart, commonly described as cycle carts or cycle crates.

Sd/- U. Mukharji, Commissioner of Police, Calcutta.”

3. 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.

4. The main grounds on which this order is challenged are:—

(1) That the said section 61A of 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 their 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.

5. 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 29th December, 1958. The ban on these carts came on the 12th March, 1959 within a few months of their appearance on the road. The licences were given by the Calcutta Corporation under sections 218 and 219 of the Calcutta Municipal Act, 1951 for the “trade or calling of cycle carts owner”. These licences were in force till 31st March, 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 that their right to trade and business of plying cycle carts in the streets of Calcutta and its suburbs has been infringed. The petitioners challenge the notification as discriminatory against the cycle carts, because other similar carts like push-carts (Handcarts), bullock and buffalo-carts are allowed to ply on the road. It is therefore contended that the cycle-carts which are swifter than push-carts and bullock-carts do not any more create traffic jam than they. Therefore they submit the total prohibition or banning of these cycle-carts without banning the other types of carts within the meaning of that word as defined in the Calcutta Municipal Act is irrational, discriminatory, arbitrary and mala fide amounting to unreasonable restriction of the petitioners' right to carry on trade or occupation guaranteed under Article 19(1)(g) of the Constitution. They also allege that this impugned notification has deprived them of their properties without compensation and is therefore unconstitutional and void under Article 31 of the Constitution.

6. The Government case is that the vehicles described as cycle carts are not really carts within the meaning of the Calcutta Municipal Act, 1951. They are, in fact, tricycles with three pneumatic tyres with a platform fitted on the top of the two rear wheels and propelled by mechanical means. The Government contends that the Calcutta Corporation authorities do not and cannot authorise the owners, of such vehicles to use them without any hindrance or restriction by any other authority when such authority is empowered in law to put a ban or restriction upon user of these vehicles in the interest of public safety and regulation of traffic in the streets of Calcutta and its surbubs. The Government also states that tricycle carrier with risky seats fixed on the top of the two rear wheels was prohibited in the town of Calcutta and suburbs even as early as 1952 by notification issued by the Commissioner of Police, Calcutta and the present type of vehicle under consideration is almost of the identical pattern except for the fact that the platform is used normally for carrying goods instead of carrying passenger, although even passengers are frequently carried. It is also contended on behalf of the Government that the cycle carts of petitioner No. 2 in Civil Revision Case No. 835 of 1959 was seized on 14th March, 1959 and his driver was prosecuted and convicted and the petitioner No. 2 paid the fine which is imposed by the Magistrate on the 16th March, 1959. It is the Government case that the cycle carts are worse than slow moving carts from the traffic point of view because of the following eleven reasons set out in the Government's affidavit:—

(i) The said cycle carts are used in large numbers and have led to many serious traffic congestions in the already extremely congested streets of Calcutta and its suburbs;

(ii) that they are driven by persons many of whom are of immature age and completely ignorant of traffic rules and without any licence;

(iii) in the absence of specification the alleged cycle carts are very commonly and widely used for carriage not only of goods and articles which stick out of the platforms, which are a danger alike to pedestrians and other traffic, but also for carrying human beings who are precariously perched on the top of bundles and loads which are carried.

(iv) the cycle-carts are dangerous on the tramway lines as there is risk of serious accident once any of the wheels gets into the channel of such lines.

(v) with the growth of fast moving traffic and increase in the number of power-driven vehicles the cycle-carts being slow-moving vehicles have created a serious problem for the traffic police and have caused and are causing considerable danger and inconvenience to the public.

(vi) the cycle-carts usually congregate in large numbers outside markets and other public places in Calcutta and its suburbs and thus block up traffic lanes with the result that they impede smooth flow of traffic in the grossly over-congested and narrow streets of Calcutta and its suburbs.

(vii) most of the markets in Calcutta and its suburbs are located on major roads and there is hardly any space for parking for loading and unloading in front of any market place and to add to this congestion the cycle-carts were and are being parked in more than one line bringing circulation of traffic to a standstill.

(viii) the cycle-carts waiting for loading and unloading occupy 3 times more space than hand-carts, for empty hand-carts were placed on the top of the other which is not possible in the case of cycle-carts.

(ix) the presence of cycle-carts in the streets of Calcutta and it suburbs has created an unmanageable chaos in traffic.

7. This is a brief survey of the main controversies on this petition. Their determination depends on the proper interpretation of the Constitution and the material sections of the relevant Police Acts.

8. section 61A of the Calcutta Police Act and section 38A of the Calcutta Suburban Police Act were introduced by the Calcutta and Suburban Police (Amendment Act) (West Bengal Act 35) Act of 1948 which received the assent of the Governor on the 11th November, 1948 and published in the Calcutta Gazette on the same day. These two Acts including these two impugned sections subsequently introduced by the Amending Act are pre-Constitution Acts. These sections are attacked on two broad grounds. Before formulating the grounds of attack it will be useful to quote section 61A and section 38A of the two relevant Acts which read as follows:—

“61A—Power of Commissioner to prohibit the use or driving certain types of vehicles in the streets or public places.

(i) With previous sanction of the State Government, the Commissioner of Police may, from time to time, by notification in the Official Gazette, prescribe the types of vehicles which shall not be driven or used in the streets or public places;

(ii) Whoever uses or drives in the street or public place a vehicle of a type be used or driven of which has been prohibited under sub-section (1) shall be liable to fine which may extend to Rs. 500/- and the vehicle in respect of which the offence has been committed shall be forfeited to the State.”

“38A—Power of Commissioner to prohibit the use or driving of certain types of vehicles in the streets or public places.

(i) With the previous sanction of the State Government, the Commissioner of Police may, from time to time, by notification in the Official Gazette, prescribe the types of vehicles which shall not be driven or used in the streets or public places within such limits as may be specified in this behalf by the Commissioner of Police in the said notification;

(ii) Whoever uses or drives in a street, or public place within the limits specified under sub-section (i), a vehicle of a type be used or driven of which has been prohibited under that sub-section, shall be liable to fine which may extend to Rs. 500/- and the vehicle in respect of which the offence has been committed shall be forfeited to the State.”

9. The first attack is on the ground that those amendments lacked legislative competence. It is contended that the State legislature had no legislative competence to pass the amending Acts because no power to acquire any property other than land was given to the State legislature under section 299 of the Government of India Act, 1935 which was in force at the time when the amendment was made. Mr. Moitra who argued the case with great ability for Paschim Banga Malbahi Cycle Mazdoor Union in Civil Revision Case No. 835 of 1959 relied on entry 9, “compulsory acquisition of land”, in list 2 of the Government of India Act, 1935 in support of this contention. He further developed this argument by contending that in any event the right to ply cycle-carts in the streets of Calcutta and its suburbs was an interest in commercial undertaking, on the authority of Saghir Ahmed v. State of U.P (1) (1955) 1 S.C.R 707, and therefore its acquisition under section 299(2) of the Government of India Act, 1935 by the West Bengal Amendment Act 35 of 1948 without providing for payment of compensation could not have been lawfully passed by the West Bengal State Legislature. Mr. Moitra finally submits that even the Amending Act, the West Bengal Act 35 of 1948, as such is ultra vires on the same arguments.

10. Mr. Moitra relied on a number of authorities of the Supreme Court in support of his contention on this point. His sheet anchor is a Saghir Ahmed's case in (1) (1955) 1 S.C.R 707 where the Supreme Court held the U.P Road Transport Act, 1951 to violate both Articles 19 and 31 of the Constitution. Reference was also made to State of West Bengal v. Subodh Gopal Bose (2) (1954) S.C.R 587 : A.I.R 1954 S.C 92 at page 99, Dwarkadas Shrinivas v. The Sholapur Spinning Co. Ltd. (3) (1954) S.C.R 674 at 689, Bhikaji v. Madhya Prodesh (4) (1955) 2 S.C.R 589 : 1956 S.C.A I at pages 6-10, Rajamundri Electric Supply Corporation v. Andhra (5) (1954) S.C.R 779 holding that section 299 of the Government of India Act, 1935 hits Madras Electricity Supply Undertakings (Acts) Act, 1949 and Deep Chand v. The State of U.P (6) A.I.R 1959 S.C 648 at pages 663-669.

11. The second ground of attack on section 61A of the Calcutta Police Act and section 38A of the Calcutta Suburban Police Act was ably developed at greater length by Mr. S. Roy appearing for the petitioner in the matter No. 36 of 1959 between Bijon Krishna Mukherji v. Commissioner of Police on the ground of (1) excessive and unconstitutional delegation, (2) infringement of the procedural safeguard and (3) making unreasonable restriction under Article 19(1)(g) of the Constitution read with clause (6) thereof. In fact, Mr. Roy's major emphasis was more on this branch of the argument than on Article 31 of the Constitution. He fortified his argument on excessive delegation by contending first that the Commissioner of Police is given uncontrolled power; secondly, that no principles or standards were indicated in these two sections to guide the Commissioner of Police; thirdly, the rights of the petitioners which were affected could not be ventilated by any kind of appeal provided in the Statute; and fourthly, no hearing of affected parties was required. On the last two grounds Mr. Roy has submitted that the restrictions are therefore unreasonable and cannot pass the test of clause (6) of Article 19(1)(g) of the Constitution.

12. Mr. Roy also relied on the Supreme Court decisions in Dr. N.B Khare (Dr.) v. State Of Delhi (7) 1950 S.C.R 519, Chintamon Rao v. The State of Madhya Pradesh (8) 1950 S.C.R 759, Rashid Ahmed v. Municipal Board, Kairana., Kairana (9) 1950 S.C.R 566, Md. Yasin v. The Town Area Committee, Jalalabad (10) 1952 S.C.R 572, Dwarkaprasad v. The State of U.P (11) 1954 S.C.R 803 at 811-4, Virendra v. The State of Punjab (12) (1958) S.C.R 308 : 1958 S.C.A 891 at pages 900-901 emphasising lack of time limit and opportunity to make representation as making delegation bad, The State of Madras v. V.G Row (13) 1952 S.C.R 597 at page 608 per Patanjali Sastri, C.J, Romesh Thapar v. The State of Madras (14) (1950) S.C.R 594 at 603-5, Hari Shankar Bagla v. The State of Madhya Pradesh (15) (1955) 1 S.C.R 380 at pages 388-9, Bhatnagars & Co. Ltd. v. The Union of India (16) (1957) S.C.R 701 at pages 716-9 and Hamdard v. The Union (17) (1960) I S.C.A 314 at pages 344-45 on the Drug and Magic Remedies (Objectionable advertisement) Act (Act 21 of 1954) dealing particularly with delegation.

13. Mr. Roy's main thesis is that restriction in order to be reasonable under clause (6) of Article 19(1)(g) of the Constitution must be reasonable both substantively and procedurally. Procedurally he submits the sections are unreasonable, because they do not provide for (1) hearing the cycle-cart owners' interests, (2) for representation of the cycle-cart owners, (3) no notice given before the ban and (4) no reasons given as required by the Motor Vehicles Act. For procedural reasonableness he relied on the decisions of Anumathi Sadhukhan…Petnr; v. A.K Chatterjee…Opp. Party. (18) A.I.R 1951 Cal. 90, Dwarkaprasad's case (11) A.I.R 1954 S.C 803 at pages 812-14, Gurbachan v. Bombay (19), 1952 S.C.R 737 at page 742 and Virendra v. Punjab (12) 1958 S.C.A 891. In other words, the contention is that the restriction cannot be reasonable when the procedure is so unreasonable as not to provide for notice and challenge and to make it dependent on what Mr. Roy describes as the subjective satisfaction of the Police Commissioner. He also relied on Raghubir case in (20) 1953 S.C.A 629 : 1953 S.C.R 1094 and Ibrahim Mavat v. Bombay (21) 1954 S.C.R 933.

14. On a consideration of both the grounds I am satisfied that neither of them can succeed. I shall take up the first ground first.

15. In order to succeed under section 299 of the Government of India Act, 1935 the applicants must satisfy two conditions. The first condition is that they must show that they have been deprived of property without the “authority of law” under section 299(1). The second condition under section 299(2) of the Government of India Act, 1935, is that they must show that this is a case of “compulsory acquisition”. In my view, they must fail in both.

16. Now the “authority of law” in this case is the West Bengal Act 35 of 1948. The challenge that Act 35 of 1948 lacks legal competence is successfully met by the fact that being a pre-Constitution Act the State Legislature was competent to pass it by reason of entry 3 relating to “police”, entry 18 relating to “local Government” and entry 18 relating to “communication, road”, etc. Under list 2 of the 7th Schedule of the Government of India Act, 1935, it clearly comes under the entry heads of “police” and “communication”. The two main sections 61A and 38A respectively of the Calcutta Police Act and Calcutta Suburban Police Act plainly in terms of their language give power to “prescribe” the types of vehicles which shall not be driven or used in the streets or public places. They therefore clearly come under “police” and “communication”. The Calcutta Police Act, 1866 and the Calcutta Suburban Police Act as their preambles respectively suggest were intended to amend and consolidate the provisions of the prior Act 13 of 1856 for regulating the police in the town of Calcutta and for making better regulation of the police within the suburbs in the town of Calcutta. I therefore hold that the West Bengal State Legislature had legislative competence to pass the Amending Act, being West Bengal Act 35 of 1948.

17. These two Acts and the amended sections 61A and 38A thereof were at the commencement of the Constitution “existing law” and certainly will have to pass the tests of Article 13 of the Constitution when the Constitution came into force. The Supreme Court in Saghir Ahmed v. The State of U.P (1) (1955) 1 S.C.R 707 lays down the principle that the true effect of Article 13(1) of the Constitution is to render an Act, inconsistent with the fundamental right, inoperative, to the extent of the inconsistency. The theory of eclipse as explained by the Supreme Court means this that such an Act is overshadowed by the Fundamental Right and remains dormant but is not dead in the sense that it can revive after a constitutional amendment. This theory of legislative eclipse was analysed in the subsequent Supreme Court decision in Bhikaji Narain v. State of Madhya Pradesh (4) (1955) 2 S.C.R 589 stating that the amendment made in Clause (6) of Article 19 of the Constitution First Amendment Act could make valid provisions of an impugned Act before the Constitution no longer inconsistent after clause (6) of Article 19 and the result would be that the impugned Act would begin to operate once again from the date of the amendment with this difference that unlike amended clause (2) of Article 19 which was expressly made retrospective, no rights and obligations could be founded on the provisions of the impugned Act from the date of its amendment. On that basis the Supreme Court in Bhikaji's case (4) held valid the notification declaring the intentions of the State to take over the bus routes to the exclusion of other motor transport operators and thereby the decisions of Saghir Ahmed's case (1) can be distinguished.

18. A good deal of arguments at the Bar on this point has been addressed to us on this theory of eclipse. It seems to me that such arguments do not here settle the issue although the impugned sections of the Police Acts and the Notifications thereunder as I shall presently show, pass the test of eclipse as expounded by the Supreme Court. In plain language prescription of the types of vehicles under section 61A of the Calcutta Police Act or section 38A of the Calcutta Suburban Police Act does not infringe any fundamental right guaranteed by the Constitution. What is said on behalf of the applicants is that the notification banning the plying of cycle carts affects their interest in a commercial undertaking or right to business and therefore is hit by fundamental rights guaranteed under Articles 19 and 31 of the Constitution. But that argument then does not make the two Acts or the particular sections 61A and 38A bad or invalid and can be taken only as argument directed against the notifications made thereunder.

19. It is then argued that under Articles 19 and 21 of the Constitution the impugned notifications dated the 12th March, 1959 are unconstitutional as having been made after the Constitution came into force. Notifications come within the meaning of ‘law’ only in Article 13 under Article 13(3)(a) of the Constitution.

20. The applicants' first argument that the Acts and notifications violate Article 19(1)(g) and Article 31 of the Constitution is based entirely on the decision of the Supreme Court in Saghir Ahmed v. State of U.P (1) (1955) 1 S.C.R 707. That decision lays down that, amendment of the Constitution which came later, cannot be invoked to validate an earlier legislation, which was unconstitutional when it was passed, because a Statute void for unconstitutionality is dead or still-born and cannot be vitalised by subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted. In Saghir Ahmed's case (1) the U.P Road Transport Act, 1951 could not be validated by applying the provisions of the amended clause (6) of Art. 19(1)(g) of the Constitution which came subsequent to the Act. But this argument is of no avail to the applicants here because the Amending Acts in the present case were not “still-born” but valid laws when they were passed in 1948. They were only eclipsed by the Constitution and revived and started shining again by the introduction of Constitutional amendment of Clause (6) of Article 19, so that when thereafter the impugned Notifications came on the 12th March, 1959, they had revived by Clause (6) of Article 19 of the Constitutional amendment, making the Notification good. Secondly, Saghir Ahmed's case (1) comes to the conclusion that all public streets and roads vest in the State which holds them as trustees on behalf of the public and as such the State is entitled to impose all such limitations on the character and extent of the user as may be required for protecting the rights of the public generally but subject to such limitations, the right of a citizen to carry on the business in transport vehicles on public pathway cannot be denied to him on the ground that the State owns the highway. Mukherjea, J. in Saghir Ahmed's case (1) in (1955) 1 S.C.R 707 at pages 729-30 observed:—

According to the High Court, therefore, mere deprivation of the petitioners' right to run buses or their interest in a commercial undertaking is not sufficient to attract the operation of Article 31(2) of the Constitution as the deprivation has been by the authority of law within the meaning of clause (1) of that Article. Clause (2) could be attracted only if the State had acquired or taken possession of this very right or interest of the petitioners or in other words if the right of the petitioners to run buses had been acquired by or had become vested in the Government. The State, it is pointed out, has an undoubted right to run buses of its own on the public thoroughfares, and they do not stand on the rights of the petitioners. This argument, we think, is not tenable having regard to the majority decision of this Court in the case of State of West Bengal v. Subodh Gopal Bose, 1954 S.C.R 587 and Dwarkadas Srinivas v. Sholapur Spinning & Weaving Co. Ltd., 1954 S.C.R 674. In view of that majority decision it must be taken to be settled now that clauses (1) and (2) of the Article 31 are not mutually exclusive in scope but should be read together as dealing with the same subject, namely, the protection of the right to property by means of limitations on the State's powers, the deprivation contemplated in clause (1) being no other than acquisition or taking possession of the property referred to in clause (2). The learned Advocate General conceded this to be the true legal position after the pronouncements of this Court referred to above. The fact that the buses belonging to the appellants have not been acquired by the Government is also not material. The property of a business may be both tangible and intangible. Under the statute the Government may not deprive the appellants of their buses or any other tangible property but they are depriving them of the business of running buses on hire on public roads. We think, therefore that in these circumstances the legislation does conflict with the provision of Article 31(2) of the Constitution and as the requirements of that clause have not been complied with, it should be held to be invalid on that ground.”

21. The notifications concerned in Saghir Ahmed's case (1) declared in terms of section 3 of U.P Road Transport Act, 1951 that “the State carriage services, among others, on the Bulandshahr-Delhi route, shall be run and operated exclusively by the State Government.”

22. Prima facie this decision helps the contention of the applicants. On closer examination, however, it appears that analogy between Saghir Ahmed's case (1) and the present case before us is not sound. Saghir Ahmed's case (1) is distinguishable on many grounds. In the first place, it was based on the major consideration of a State monopoly where the State took over the route to the exclusion of private operators in that route conflicting with their right to use the highway. The State has done nothing of the kind in the present case before us. Secondly, Saghir Ahmed's case (1) proceeded on the basis of the fundamental right to carry on business of transport guaranteed by Article 19(1)(g) of the Constitution. Here the right to carry on business for transport as such is not attacked by the State. The issue here before us is whether the State has the right to prescribe the types of vehicles to be used on the roads. Saghir Ahmed case (1) was not concerned with what particular types of buses were to be run or not, but excluded the private citizen from carrying on business in all bus transport irrespective of the types of buses used. In other words, in the present case the State claims only to regulate the manner of carrying the business of transport by controlling the type of Vehicle to be permitted on the roads. Thirdly, it follows that no right to business or intangible assests, such as mentioned. in Saghir Ahmed's case (1) are involved in the present case. No property as such is acquired by the State in the present case because the cycle-carts are not acquired by the State and are left free to ply outside the limits imposed by the Notifications. Nor any intangible asset is affected by “prescribing” types of permissible vehicles on the road. The right of forfeiture under sub-section (ii) of the impugned sections of the Police Acts when the banned vehicles are attempted to be used on the road defying the ban, is not an issue raised or argued in these applications nor has the State yet any occasion to claim to forfeit them in the present case. For these reasons, I am satisfied that Saghir Ahmed's decision (1) cannot be applied to the petitioners.

23. The next question of major importance is whether the present case is at all one of compulsory acquisition so as to be hit by Article 31 of the Constitution or section 299 of the Government of India Act, 1935. This point raises many complicated legal questions. As we are dealing with pre-Constitution Acts it is necessary to remind ourselves that the Federal Court of India in Rao Bahadur Kunwarlal Singh v. The Central Province & Berar, (22) 1944 F.C.R 284 interpreted the word “acquisition” in section 299 of the Government of India Act, 1935 to mean “actual transference”. At page 294 of that report Spens, C.J laid down:—

“It further seems to us that the word “acquisition” implies that there must be an actual transference of, and it must be possible to indicate some person or body to whom is or are transferred, the land or rights referred to. It is impossible, in our view, to suggest that when the land revenue is increased, there is any transference to the Provincial Government or any other person of any land or rights in or over immovable property, which remains in the same possession or ownership as immediately before the increase of the assessment. In our judgment the attempt to bring the case within section 299(2) must fail.”

24. On a party of reasoning, here the sections of the Police Acts and the Commissioner of Police acting thereunder merely to prescribe the types of vehicles to be permitted on the roads and suburbs of Calcutta are not making directly or remotely any “actual transference.” But for the decision of the Supreme Court in Subodh Gopal Bose's case in (2) 1954 S.C.R 587 suggesting the wider meaning of deprivation of any kind, no further discussion of this point would have been necessary. This difficulty was noticed by Das, A.C.J in the following observations of the subsequent Supreme Court decision in Bhikaji v. State of Madhya Pradesh (4) (1955) 2 S.C.R 589 at page 602:—

“Prior to the Constitution, when there were no fundamental rights, section 299 of the Government of India Act, 1935 which corresponds to Article 31 had been construed by the Federal Court in Rao Bahadur Kunwarlal Singh v. The Central Province & Berar and in other cases referred to in Rajah of Bobbili v. The State of Madras, (1952) 1 M.L.J 174 at pages 193-94 and it was held by the Federal Court that the word “acquisition” occurring in section 299 had the limited meaning of actual transference of ownership and not the wide meaning of deprivation of any kind that has been given by this Court in Subodh Gopal Bose's case, 1954 S.C.R 587, to that word “acquisition” appearing in Article 31(2) in the light of the other provisions of the Constitution. It is, therefore, not clear at all that the impugned Act was in conflict with section 299 of the Government of India Act, 1935.”

25. The Federal Court is clear enough to say that under section 299 of the Government of India Act, 1935, “acquisition” means actual transference of ownership. That decision of the Federal Court is binding on us under Article 374(2) of the Constitution. By that test neither section 61A of the Calcutta Police Act nor section 38A of the Calcutta Suburban Police Act nor the notifications made thereunder can be said to involve any “actual transference” whatever and therefore cannot be challenged as unconstitutional or invalid. The Supreme Court decision in Subodh Gopal Bose's case (2) is clearly distinguishable. It cannot be stretched to bring a statutory provision, prescribing the types of vehicles and the relative notifications declaring that certain types should not be used on the roads, within the constitutional prohibition of either Article 19 or Article 31 of the Constitution. The facts of Subodh Gopal Bose's case (2) related to purchase of land at a revenue sale and the effect of West Bengal Revenue Sales Amedment Act, 1950 and the question involved property of undertenures which is very different from the question with which this Court is here concerned relating to types of vehicles to be used on the roads.

26. I cannot read section 61A of the Calcutta Police Act or section 38A of the Calcutta Suburban Police Act or the impugned notifications thereunder as bringing the present case within the meaning of “compulsory acquisition” under section 299 of the Government of India Act or Article 31 of the Constitution. I am unable to accept the argument that when the Police Commissioner “prescribes the types of vehicles” to be used on the road, he, in pith and substance or in gist, deprives any one of his property or affects an interest in a commercial undertaking or even the right to carry on business under Article 19(1)(g) of the Constitution. Even if such an order does affect the right to carry on any trade or business then such prescription of the type of vehicle if it is in public interest, safety and for better regulation of traffic, then such restriction, I hold, is reasonable restriction in the interest of the general public under clause (6) of Article 19 of the Constitution.

27. It is essential to point out that Article 19(1)(f) and (g) on the one hand and Article 31 of the Constitution on the other deal with different subjects and cover different fields. They are mutually exclusive. This is how I read the ratio of the Supreme Court decision in the State of Bombay v. Bhanji Munji (23) (1955) 1 S.C.R 777 where Bose, J. of the Supreme Court at pages 779–80 observed:—

“In the State of West Bengal v. Subodh Gopal Bose, 1954 S.C.R 587 and Dwarkadas Srinivas v. Sholapur Spinning & Weaving Co, Ltd., 1954 S.C.R 674, the majority of the judges were agreed that Article 19(1)(f) and Article 31 deal with different subjects and cover different fields. There was some disagreement about the nature and scope of the difference but all were agreed that there was no overlapping.”

28. On the facts of the present case I cannot see how the Commissioner of Police when he prescribes the types of vehicles to be used and not to be used on the roads affects property, at all. Can it be said then that if the Commissioner prescribes that no vehicle with protruding pikes shall be used on the road and then he must pay compensation for “acquisition” of such property? Again, can it be said that when the Commissioner of Police says that no vehicle without a back light or traffic indicator should be used on the road, is he acquiring property and must pay compensation for such a notification? The answers to my mind must be in the negative. I am unable to come to the conclusion that Saghir Ahmed's case (1) said or intended to say that every time the Commissioner of Police made an order closing some public roads or highways for vehicular traffic on the grounds such as processions or special visitors, he must pay compensation to the owners of these vehicles so prohibited. I think we shall reduce the position to absurdity by accepting the applicant's argument that such a prescription of the type of vehicle is a case of acquisition of any property or interest in any commercial undertaking.

29. It remains now to deal with the contention of the applicants that even if Article 31 does not apply, Article 19(1)(g) applies and therefore the impugned sections of the two Acts and the restrictions imposed by the notifications thereunder are not reasonable restrictions. These restrictions are attacked as being unreasonable both substantively as well as procedurally.

30. The attack on the ground of substantive unreasonableness is based on the thesis that under the cover of regulating traffic the Commissioner of Police cannot totally prohibit all cycle-carts. This argument draws its inspiration from the controversy, what is regulation and what is prohibition, and on the subtle difference the Court is sometimes forced to draw between them. Mr. Roy has first relied on Dick v. Badart, (24) 10 Q.B.D 387 where Cave, J. at pages 392–3 observes that a bye-law to “regulate” did not authorise the authority to “exclude” lumpers from dock, secondly, on the observation of Lord Davey in Municipal Corporation of Toronto v. Virgo (25) 1896 A.C 88 (P.C) at pages 93-94 where the power of “regulating” and “governing” hawkers or markets was held not to include power to exclude hawkers, and thirdly, on the observation of Lord Watson in Attorney General for Ontario v. Attorney General for the Dominion of Canada (26) 1896 A.C 348 (P.C) at pages 359-363 where the expression “regulation of trade” is held not to authorise total prohibition of wines and liquors under the Temperance Act on the ground that a power “to regulate”, naturally, if not necessarily, assumes, unless it is enlarged by the context, the conservation of the thing which is to be made the subject of regulation.

31. These English cases proceed on ??? interpretation of the word “regulate”. They have no application to the present case before us because here the Statute clearly gives the power to “prescribe” types of vehicles and to ban those which do not conform to that type and the Constitution of India uses the word “restriction” and not “regulation.” How far restriction can include total prohibition under the Constitution is a question which was long left open by the Supreme Court, but by its recent decision in Narendra Kumar v. The Union of India (27) A.I.R 1960 S.C 430, Das Gupta, J. at page 436 has clearly laid down “There can be no doubt therefore that they intended by the word ‘restriction’ to include cases of a ‘prohibition’ also.”

32. The learned Junior Standing Counsel of the State has met this challenge by saying that restriction may mean prohibition and is different from regulation. He relies on Lord Porter's following observations in Commonwealth of Australia v. Bank of New South Wales (28) 1950 A.C 235 at pages 311-12:—

“Their Lordships must therefore add, what, but for the purpose of argument so strenuously urged, they would have thought it unnecessary to add, that regulation of trade may clearly take the form of denying certain activities to persons by age or circumstances unfit to perform, or of excluding from passage across the frontier of a State, creatures or things calculated to injure its citizens.”

33. The Two Travancore decisions, one in C. Philiph v. Travancore Cochin State (29) A.I.R 1952 Travancore-Cochin 274 at page 277 justifying the total closure of a path under Article 19(1)(d) of the Constitution read with sub-clause (5) thereof and the other in Mathai v. The State (30) A.I.R 1954 Travancore-Cochin 47 at page 48 on the Travancore-Cochin Police Act, support the same view. The latter decision actually holds that reasonable restriction may amount to total prohibition.

34. The learned Counsel for the applicants relied also on the decision of the Supreme Court in Srinivasa Reddy v. The State of Mysore (31) A.I.R 1960 S.C 350 at page 352, where Wanchoo, J. observed:—

“This section thus gives power to the undertaking to prepare a scheme in relation to an area or route or portion thereof. The undertaking is thus not bound to prepare a scheme for the whole State at one time; it has been given the power to choose particular types of services or a particular area or particular routes or even portions thereof, for the reason that it may not be possible for the undertaking to run services all over the State at the same time. Thus when the undertaking decides to frame a scheme, it must take into account its resources in men, material and money and frame a scheme only to the extent to which it can carry it out in full. For example, if it can carry out the scheme for the whole State at once it may frame a scheme for the whole State. But if it cannot do so, it can frame a scheme for one district. Even if that is not within its resources it can frame a scheme for a part of a district. Even in a part of the district its scheme may deal with certain routes and not all. So long as it can show that the scheme is an efficient, adequate, economical and properly coordinated scheme for road transport service, it will have a right to frame a scheme for only a part of the transport services running in a State. Therefore, the scheme to be framed must be such as is capable of being carried out all at once and that is why the undertaking has been given the power to frame a scheme for an area or route or even a portion thereof. Further after the scheme is framed it is approved and published by the State Government. Thereafter it is the duty of the undertaking to carry out the scheme and in pursuance of that it applies for permits under sec. 68F(1). If the undertaking at that stage has the power to carry it out piecemeal, it would be possible for it to abuse the power of implementation and to discriminate against some operators and in favour of others included in the scheme and also to break up the integrity of the scheme and in a sense modify it against the terms of S. 68E. There is no difficulty for the undertaking to apply for permits relating to the entire scheme at the same time, for the manner in which the scheme is prepared under sec. 68C takes into account all the difficulties which might arise in the implementation of the scheme and with that very object provides for taking over particular types of transport services in relation to areas or routes or even portions thereof. We need not however pursue the matter further on this occasion.”

35. On the strength of these observations it is contended for the applicants that if the scheme of the Police Commissioner is to remove all slow moving traffic from the roads of Calcutta and its suburbs, then this should be done all at once and not piecemeal. Selection of the cycle-carts as the first victim is therefore substantively unreasonable when equally slow if not slower vehicles are allowed to remain on the road.

36. I do not consider that the decision in Srinivasa Reddy's case (31) is at all applicable to the present facts because that was a decision on particular sections of the Motor Vehicles Act such as, sections 68F, 67(2) & (3), 45 and 46. All that the decision holds is that when the State Transport undertaking is an applicant under section 68F, it must satisfy the requirements of the sections 57(2), 45 and 46 of the Motor Vehicles Act. There it was a Statutory Scheme under Chapter IV-A of the Motor Vehicles Act and Scheme prepared under section 68C of that Act and the Supreme Court discussed how the Scheme could be put into effect and operated. No such question at all of any Statutory Scheme arises in the present case before us. No such Statutory Scheme as under section 68C of the Motor Vehicles Act is involved here, nor does any question arise here of the State satisfying requirements under section 57(2) of the Motor Vehicles Act. It is necessary to emphasise that the Supreme Court in Srinivasa Reddy's case (31) did not expressly “pursue the matter any further” than pointing out the possibility of abuse and discrimination in working out a Statutory Scheme piecemeal and not as a whole. That in my view means that in any event actual abuse or discrimination must be established when piece-meal execution is challenged unless it is otherwise bad under the Statute such as, the breaking up of the integrity of a Statutory Scheme as pointed out by the Supreme Court under section 68E of the Motor Vehicles Act. All slow-moving vehicles are not of the same class and even among them further classification is possible and I do not see how if the object is to remove slow-moving vehicles from the roads why that object cannot be achieved gradually, and why in such a context of facts Courts should apply “all or none” principle in administration. I am therefore of the opinion that the two impugned sections of the Police Acts or the Notifications thereunder do not violate Articles 14 of the Constitution.

37. The substantive provisions under section 61A of the Calcutta Police Act or section 38A of the Calcutta Suburban Police Act deal with the Commissioner's power to prescribe types of vehicles. For the reasons stated above, I see nothing substantively unreasonable in respect of the pith and substance of this provision, to make it constitutionally bad under Article 19.

38. The real challenge to the section 61A of the Calcutta Police Act and 38A of the Calcutta Suburban Police Act and the notifications thereunder 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 Anumathi Sadhukhan…Petnr; v. A.K Chatterjee…Opp. Party. (18) A.I.R 1951 Cal. 90, Khagen v. District Magistrate, Dinajpur (32) 55 C.W.N 53, and the Supreme Court decision in Dwarkadas v. Sholapur Spinning & Weaving Co. Ltd. (3) 1954 S.C 674 at page 689, Gurbachan Singh v. The State of Bombay (19) 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 (20) 1953 S.C.A 629, Ibrahim Mavat v. The State of Bombay (21) 1954 S.C.R 933 dealing with the order of physical removal of Indian citizens and Influx from Pakistan Control Act, 1949.

39. 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. Whether restriction imposed by the Act or notification is a reasonable restriction in the interest of the public cannot be judged exclusively and conclusively by the fact that the aggrieved party is given by the Statute itself, a Statutory procedure to ventilate his grievance first before the order is made. Even where such a procedure is available, orders of restriction may nevertheless be unreasonable; similarly, even without such a prescribed procedure the orders may be reasonable. It is worth emphasising that the impugned actions here are not judicial or quasi-judicial but are executive and administrative actions. Whether on the particular facts of each case restriction imposed isreasonable or not is to be judged on the individual merits of the particular restriction. For instance, if under the section the Commissioner prescribed by notification that no vehicle without a back light or without trafficator light should be used on the road, I do not see why such order should not be held to be reasonable restriction even though the Commissioner does not hear the party or allow them to make representation. Procedural unreasonableness is also avoided by the express statutory requirement of previous sanction of the State Government before any order under these sections can be made. A representative and responsible State Government may not unreasonably be assumed to act reasonably before giving its sanction. See the observations of Das, C.J, in Virendra v. Punjab (12) 1958 S.C.A 891 at pages 900-1. Having regard to the reasons of traffic control and having regard to the eleven reasons set out in the affidavit of the Government, I am unable to hold in the facts and circumstances of the case that the notification banning the use of cycle carts is not a reasonable restriction within the meaning of clause 6 of Article 19(1)(g) of the Constitution.

40. Lastly, the impugned sections and the notifications are challenged as being excessive and illegal delegation. It is contended that all powers are delegated to the Police Commissioner and no norms, guides and standards are laid down in the Act saying what tests the Commissioner should apply to prescribe or prohibit types of vehicles. Reliance is placed in support of this argument on the recent Supreme Court decision in Hamdard v. The Union of India (17) (1960) I S.C.A 314 at pages 344-45 and on the other well-known decisions in Harishankar Bagla's case (15) (1955) 1 S.C.R 380 at pages 388-89 and Bhatnagar's case in (16) 1957 S.C.R 701 at page 715-20.

41. On a careful consideration of the argument challenging the notifications and sections as bad on the ground of excessive delegation I am unable to uphold it. Applying the principles laid down by the Supreme Court in Hari Shankar Bagla's case (15) and the Bhatnagar's case (16) it is clear that the two sections and the notifications thereunder cannot be challenged on the ground of delegated legislation. The latest Supreme Court decision in Hamdard v. The Union of India (17) (1960) I S.C.A 314 related to section 8 and clause (d) of section 3 of the Drug and Magic Remedies (Objectional advertisement) Act (Act 21 of 1954). It proceeded on the principle that section 8 of the Act went beyond the purpose of the Act and it held the provision “any person authorised by any provision of the Act” was unconstitutional.

42. The reasons why I do not consider the present case to be one of unconstitutional delegated legislation may be briefly summarised. My first reason is that the Commissioner of Police is a senior and responsible officer at the head of the police force and he is therefore not a subordinate officer who is given this wide power. It cannot be that the State Government is left free here to choose any person it likes. The delegation is limited by Statute to the highest police executive. Secondly, this power of the Commissioner of Police is only exercisable “with the previous sanction of the State Government” as expressly enjoined in the section. Sanction of the State Government therefore has to be taken before the Police Commissioner issued any notification prescribing or banning types of vehicles. There is hardly any scope therefore of capricious or arbitrary action under this delegation qualified in this manner. I shall not assume that a responsible State Government would act unreasonably in such a context. If it does, then the particular act can always be struck down by the Court as constitutionally unreasonable but then it is not a case of unconstitutional delegation. If the State Government can initiate and pass legislation as the Government represents the majority, then I think there is no excessive delegation in the present case when I find that order of the Commissioner of Police can only be made after the previous sanction of the State Government. Thirdly, there is the requirement of publication in the Official Gazette. That means that sufficient publicity has to be given to such an order and I have no doubt that a representative democratic State Government would, if necessary, withdraw the notification if there is a justification behind the public opinion to do so. Fourthly, the preamble of these Police Acts and the contexts in which these sections occur and the other sections of the Acts containing express purposes of control of traffic in the interest of public safety are, in my view, sufficient guide for prescribing types of vehicles. If maintenance of essential supplies without more was a sufficient guide in Hari Shankar Bagla's case (15) then I do not see why the reasons of traffic and public safety cannot be a sufficient guide or standard in the present case with reference to Police Commissioner's order. The Statute with a subject like this cannot give the blue print or describe the permissible or prohibited types of vehicles. It cannot anticipate and invent types of mechanical or non-mechanical vehicles for this purpose. It can only have in such a context these main objectives of traffic and public safety as the only guides or norms. I do not think it is practically possible or theoretically desirable for any Statute dealing with this subject to lay down any other guides or norms or standards. I therefore hold that these two sections of the Police Acts are not bad on account of excessive or unconstitutional delegation.

43. Lastly, on behalf of the petitioner the notifications were challenged on the ground of discrimination because most of the cycle-cart owners who are affected by these notifications are said to be the children of the soil of the State. This is really a plea under Article 15 and not Article 14 of the Constitution. But there is no pleading in the petition alleging that fact. It is neither pleaded nor proved that the notifications are based on any discrimination due to the place of birth, and cannot therefore be entertained on this application.

44. The only other remaining point is on the conflict between the Calcutta Municipal Act, 1951 and the Calcutta Police Act and the Calcutta Suburban Police Act. The argument on behalf of the applicants is that because under section 349 of the Calcutta Municipal Act the public streets are vested in the Corporation and under section 350 it is the duty of the Corporation to maintain them and do all things necessary for public safety and convenience, and because section 596 of the said Calcutta Municipal Act requires the co-operation of the police with the Corporation and because section 218 of that Act permits the Corporation to impose taxes on the trade or calling of plying cycle-carts and finally because under section 224 of the Act every cart is required to be registered with the Corporation of Calcutta on payment of charges specified there and as the applicants have paid such charges and have their carts registered with the Corporation, the Police cannot interfere with such cycle-carts. These sections, viz., 218, 224, 349 and 596 of the Calcutta Municipal Act, 1951 do not in my view exclude the jurisdiction of the police under the Police Acts to regulate and control traffic. Not one of these sections of the Calcutta Municipal Act deals expressly with traffic or its control. On the other hand the Police Acts have sections expressly dealing with traffic and its control. Therefore in case of even of any possible conflict between these Acts, the principle of Generalia Specialibus Non Derogant will apply and the Police Acts will govern traffic and its regulation. The municipal provisions in the Calcutta Municipal Act vesting roads and their maintenance for public safety in the Corporation do not transfer traffic control to the Corporation of Calcutta. Nor does the municipal provision for the registration of the carts and taxing their trade or calling transfer traffic control to the Corporation of Calcutta. section 610 of the Calcutta Municipal Act, 1951 also is an answer to this argument. It provides:—

“Except as in this Act otherwise expressly provided, nothing in this Act shall be deemed to affect the provisions of any other enactment.”

45. This section makes it clear that unless in the Calcutta Municipal Act there is an express exclusion of the Police Act, the Police Act and the jurisdiction and powers thereunder can not be ousted by the Calcutta Municipal Act. The sections of the Calcutta Municipal Act quoted above and relied by the applicants do not expressly exclude the operation of the Police Acts. I am therefore unable to uphold the argument of the petitioners on this point.

46. This disposes of all the arguments made before us on behalf of the applicants. For reasons stated above both the applications must fail and are therefore dismissed. I discharge both the Rules but make no order as to costs.

Bose, J.:— The question which arises for determination is the constitutional 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 sections 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 12th March, 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. The two sections and the notification are impeached as offending Article 19(1)(g) and Article 31(2) of the Constitution or section 299(2) of the Government of India Act, 1935, and the sheet anchor of this challenge is the decision of the Supreme Court in the case of Saghir Ahmed v. State of Uttar Pradesh (1) [A.I.R (1954) S.C 728]. In this case the U.P State Road Transport Act and the notification which was issued thereunder purported to exclude all private bus-owners from their business of road transport service and to establish a complete State monopoly in respect of such road transport business on a particular route known as the Bulandshahr-Delhi route. It was held that the effect of prohibition of the trade or business of the private bus-owners amounted to deprivation of their property or interest in a commercial undertaking within the meaning of Article 31(2) of the Constitution and as there was no provision for compensation in the Act the impugned legislations were void. It was further held that the fact that the buses were not being acquired by the Government was immaterial and it was enough that the private bus-owners were being deprived of the business of running buses on hire on public road. The Supreme Court in this case further held that total prohibition of the business of the private bus-owners with a view to create State monopoly in such business could not per se be regarded as a reasonable restriction within the meaning of Article 19(6) of the Constitution and so the legislation in question was void as being violative of Article 19(1)(g) of the Constitution. It may be noted however that the question whether “restriction” extends to total prohibition was left open in this case and also in the subsequent cases of the Supreme Court reported in (33) A.I.R (1957) S.C 679 at 721 (State of Bombay v. Chamarbaugwala) and in (34) A.I.R (1958) S.C at 744 (Qurashi v. State of Bihar). But in the recent case of Narendra v. Union of India it has been held that “restriction” may include “prohibition” (27) (A.I.R (1960) S.C 430).

47. The decision of the Supreme Court in Bhikaji Narain's case (4) [A.I.R (1955) S.C 781 at 786— Para 11 of the judgment] has pointed out that prior to the Constitution when there were no fundamental rights, section 299 of the Government of India Act, 1935 had been construed by the Federal Court in Lal Singh v. Central Provinces & Berar (22) [A.I.R (1944) F.C 62] and it was held that the word “Acquisition” as occurring in section 299 had the limited meaning of actual transference of ownership and not the wide meaning of deprivation of any kind. It is clear from a close reading of Bhikaji's case (4) that the Supreme Court was inclined to take the view that the word “Acquisition” as used in section 299 of the Government of India Act, 1935 had not the same wide connotation as was ascribed to it in the Subodh Gopal's case (2) [A.I.R (1954) S.C 92] and in Saghir Ahmed's case (1) [A.I.R (1954) S.C 728] in interpreting Article 31(2) in the light of the provisions of the Constitution.

48. It is well known that under Article 374(2) of the Constitution the decisions of the Federal Court will have as much binding force and effect as a decision of the Supreme Court and as the impugned sections of the Calcutta Police Act and the Calcutta Suburban Police Act were enacted in 1948 when section 299 of the Government of India Act, 1935 was in force, they cannot possibly be declared void on the ground that the sections deal with “Acquisition” of property in the wide sense given to that expression in Saghir Ahmed's case (1) or in Subodh Gopal's case (2).

49. There can be no question therefore that the two impugned sections which empowered the Commissioner of Police to prohibit certain types of vehicles plying on the streets and public places in the town of Calcutta and its suburbs were validly enacted and were “existing laws” within the meaning of that expression as defined in Article 366(10) of the Constitution, till the Constitution came into force. Now if it be assumed that the two sections were rendered invalid by Article 31(2) of the Constitution as interpreted in Subodh Gopal's case (2) and Saghir Ahmed's case (1), then these laws must be held to have remained dormant till the Constitution was amended in 1955 and clause (2A) was inserted in Article 31 by Section 2 of the Constitution (Fourth Amendment) Act, 1955, applying the eclipse theory as propounded by the Supreme Court in Bhikaji's case (4) which was approved of in Ram Chandra Palai v. State of Orissa (35) A.I.R (1956) S.C 298 at 305] and in Deep Chand v. State of U.P (6) A.I.R (1959) S.C 648 and they revived again after the insertion of clause (2A) in Article 31, in 1955. The notification of 1959 issued under the two sections was therefore quite valid.

50. The further question that arises for consideration is whether the impeached legislation is void as infringing Article 19(1)(g). Now if it can be said that the prohibition of plying of cycle carts in particular streets or places is only an act of regulation of the general traffic in the interest of the public, the prohibition will not be obnoxious and unreasonable because the individual interest must yield to the general public interest. The Privy Council in Hughes and Vale Proprietary Ltd. v. State of New South Wales (36) 93 C.L.R 1 at 27 has observed that:—

“A simple prohibition or a prohibition subject to discretionary exemption of the trade of an individual may be regarded as regulatory of the general flow or volume of trade. It cannot possibly be regarded as regulatory of the trade of the individual who is simply not allowed to carry on his trade at all.”

51. In my view, exclusion of certain types of vehicles from certain localities or routes, in the interest of public safety, and with a view to prevent congestion of traffic and accidents, is nothing but regulation of the general traffic, though it has no doubt the effect of interfering with the individual rights of the owners of the prohibited types of vehicles to carry on their business of plying such vehicles in that particular locality or route. But as the individuals who suffer are made to submit to the regulation or restriction which is imposed in the interest of public good, the restriction cannot be said to be unreasonable or as infringing Article 19(1)(g). It must be regarded as a reasonable restriction as contemplated by Article 19(6).

52. It is clear from Section 10A, clause (m) of the Calcutta Police Act, 1866 that it is the duty of every police officer including the Commissioner of Police to regulate and control the traffic in the streets and to prevent obstruction therein; and section 62(1)(b) of the Act empowers the Commissioner of Police to make rules for regulating traffic of all kinds in streets and public places. There are corresponding provisions in Sections 4A(m) and 39(1)(b) of the Calcutta Suburban Police Act, 1866. section 61A of the Calcutta Police Act and section 38A of the Calcutta Suburban Police Act are parts of this general scheme of regulation of traffic and it is for carrying out this purpose of regulation of the traffic that power has been conferred on the Commissioner of Police to prohibit the plying of certain types of vehicles in the streets or public places. The impugned legislations are directed solely to the safety of persons using the roads. It is for the greatest good of the greatest number that prohibition on the plying of cycle carts has been imposed. The experience of the Commissioner of Police, as a result of the plying of the cycle carts in the streets and suburbs of Calcutta has been that the exclusion of the cycle carts from the public roads is reasonably necessary for effective regulation of traffic. The Privy Council has said in dealing with cases of State monopoly of transport services, that “they do not intend to lay it down that in no circumstances could the exclusion of competition so as to create a monopoly either in a State or Commonwealth agency or in some other body be justified. Each case must be judged on its own facts and in its own setting of time and circumstance.”

53. In my view the impugned legislations are valid and the contention that they infringe Article 19(1)(g) or Article 31(2) of the Constitution or section 299(2) of the Government of of India Act, 1935 must be rejected.

54. It was also argued that the impugned legislations are unreasonable as infringing Article 19(1)(g) because no principle of exercise of discretion is indicated in the Statutes and there is no provision made or right given for making representations or for preferring appeals. This contention does not appear to have any force. The power is vested in a top-ranking official of the Police force who is not expected normally to act in an irresponsible manner. There is moreover sufficient check or safeguard provided by the fact that it is with the prior sanction of the State Government that the Commissioner can proceed to act under the sections. The guiding principle of the exercise of discretion is the regulation of traffic and the impugned sections are parts of this scheme of regulation. There is nothing in the impugned legislations which prohibit the making of representations. The persons aggrieved can always make representations, and in fact they did so in the present case. As regards the absence of the right of appeal it may be pointed out that as the highest authority, namely, the State Government is expected to consider the matter carefully before granting previous sanction there can be no point in providing a right of appeal from the decision of the Commissioner of Police to that very higher authority who has granted the previous sanction. For these reasons it must be held that the legislations are not procedurally unreasonable or bad.

55. A point was also made that by allowing other three wheeled vans like Bakery and Milk Vans to ply in the streets of Calcutta while the plying of the cycle carts is prohibited there has been discrimination and Article 14 of the Constitution has been violated. But it has been repeatedly pointed out by the Supreme Court that reasonable classification is permissible. The bakery vans and milk vans which ply in the streets are very few in number and they ply only during particular hours of the day. The cycle carts ply in considerably greater numbers and throughout the day with very heavy loads of goods and passengers and they cause greater amount of obstructions or congestion than the bakery vans or the milk vans. So the fact that it is only the cycle carts that have been singled out and their plying is banned does not make the legislations or the notification in question violative of Article 14 of the Constitution.

56. Reference was made to the cases of Rashid Ahmed v. Municipal Board, Kairana. (9) [A.I.R (1950) S.C 163]; Dr. Khare's case (7) [A.I.R (1950) S.C 211]; Chintaman Rao's case (8); [A.I.R (1951) S.C 118]; Md. Yasin v. Town Area Committee, Jalalabad (10) [A.I.R (1952) S.C 115]; State of Madras v. V.G Row (13) [A.I.R (1952) S.C 196]; Cooverjee Bharucha v. Excise Commissioner (37) [A.I.R (1954) S.C 220]; Darka Prosad Laxmi Narayan v. State of U.P (11) [A.I.R (1954) S.C 224] and Virendra's case (12) [A.I.R (1957) S.C 896] but it is not necessary to deal with them at length.

57. I agree that the Rules should be discharged, and the interim orders vacated.

P.N Mookerjee, J.:— In these two Rules, certain common points of law arise, touching the validity of section 61A of the Calcutta Police Act, 1866, and section 38A of the Calcutta Suburban Police Act, 1866, and also of the notifications, issued thereunder by the Commissioner of Police, Calcutta, on March 12/13, 1959, prohibiting, in short, the plying or use of tricycles with platform bodies, attached at the back, for carrying goods, with or without passengers, and registered as carts, commonly described as cycle carts or cycle crates in the streets or public places within the limits of the town and the suburbs of Calcutta. The above two sections and the corresponding notifications are impugned as void and unconstitutional on the ground, inter alia, that they offend Articles 14, 19 and 31 of the Constitution and, so far as the sections are concerned, which came on the Statute Book in November, 1948, they are attacked also on the ground that they are invalid and void ab initio, because of contravention of section 299 of the Government of India Act, 1935, which was the Constitutional enactment, then in force, as the predecessor of our present Constitution. After the very exhaustive judgment of my Lord (P.B Mukharji, J.), a detailed discussion is unnecessary, but, having regard to the importance of the matter and certain aspects, which permit a different approach and are amenable to a different treatment, though leading to the same conclusion, I would like to add a few words of my own. I would, however, be as brief as possible, both in my discussion and reference to case law.

58. The sheet anchor of the petitioner's case is the decision of the Supreme Court in Saghir Ahmed v. The State of U.P (1) (1954) S.C.A 1218. Indeed, in view of that decision, the petitioners' challenge under Article 31 of the Constitution would, probably, have been unanswerable, if their basic argument of invalidity of the two impugned sections under section 299 of the Government of India Act, 1935, could have been accepted. The eclipse theory, then, the seed whereof was laid by the Supreme Court in its earlier decisions in Keshavan Madhava Menon v. State Of Bombay. (38) (1951) S.C.R 228 : A.I.R 1951 S.C 128, and Behram Khurshed Pasikaka v. The State of Bombay (39) (1955) 1 S.C.R 613 and which was later elaborated and broadly formulated and explained and effectively applied by the said Court in Bhikaji Narain Dhakras v. The State of Madhya Pradesh (4) (1956) S.C.A 1, would have had no application, (vide Deep Chand v. The State of Uttar Pradesh (6) (1959) 1 S.C.A 377 which points out the limitation of the said theory; vide also the recent decision of this Court on the point in the case of the State Of West Bengal… v. Bon Behari Mondal…. (40) 64 C.W.N 722 and the new Article 31(2A) would have been incapable of saving the impugned sections and, necessarily, therefore, the impugned notifications too. As matters stand, however, the decision of the Supreme Court in the said Bhikaji Narain's case (4) (1956) S.C.A 1, at pp. 11-12, approving and adopting the construction of the word ‘acquisition’ in section 299(2) of the Government of India Act, 1935, as made by the Federal Court in Kunwar Lal Singh's case (22) 48 C.W.N 115 (F.R) —which pre-Constitution Federal Court decision has, even on its own, under Article 374(2) of the Constitution, the same force and effect as a Supreme Court decision,—and by the Madras High Court in Rajah of Bobbili v. The State of Madras (41) (1952) 1 M.L.J 174 at pp. 193-194, would keep the impugned sections outside the mischief of the said constitutional provision (section 299 of the Government of India Act, 1935) and the same also, it is argued by the State, would be the result of applying the doctrine of pith and substance and disregarding the incidental effect of the statute or statutes, when considering the question of their virus, in the light of the other Supreme Court decision, recently reported, in Hamdard Dawakhana v. The Union of India (17) 1960 (1) S.C.A 314 : A.I.R 1960 S.C 554, and the earlier Privy Council decision in the Australian case (28) reported in 1950 A.C 235. I am, however, not inclined to accept or give effect to this last argument. It is, at least, open to question whether the interference with the petitioners' alleged trade or right to trade in the instant case by or by reason of the impunged legislation and/or notifications is really incidental. The effect of the impugned Police ban on the plying of the offending “cycle carts” may well be considered to be direct and instantaneous on the petitioners' alleged trade or their right to carry on the same within the urban and suburban limits of Calcutta (vide in this connection Mohd. Hanif Quareshi v. The State of Bihar (34) 1958 S.C.A 783 at p. 802 : A.I.R 1958 S.C 731 at p. 742) and, normally, such bans may well be conceived to have a direct effect on, and to affect and interfere with directly, some such fundamental right under the Constitution. It would not be proper, therefore, to affirm or uphold the virus of the impugned sections and notifications by applying this theory of incidental effect. That, however, would not alter the position regarding the legislative competence of the enacting Legislature on the doctrine of pith and substance. Indeed, this doctrine has, for such purpose, long been recognised and applied and such application is, in no way, affected by the unconstitutionality,—and necessary invalidity,— of the particular legislation by reason of its infraction of some fundamental constitutional right. Indeed, there is a well-marked distinction between the two classes of cases. A statute may be ultra vires, invalid and unconstitutional because of legislative incompetence of the enacting Legislature, that is, because the Legislature in question had not the necessary legislative competence for the purpose, the particular topic,— subject or subject-matter,— not being within its legislative field or competence, or because of the particular legislation, infringing or infringing upon one or other of the fundamental rights, guaranteed by the Constitution (vide Sundararamier & Co. v. State of Andhra Pradesh (42) A.I.R 1958 S.C 468 at p. 489, which also aids a facile concept of the basic idea of the theory inductive of eclipse). In the former case, the doctrine of pith and substance may protect the particular statute; in the latter it may be of no avail unless the infringement is not direct but only incidental. A statute, again, may well be, in pith and substance, within the field of legislative competence of the particular or enacting Legislature, while, at the same time, it may be directly violative of some fundamental right and may constitute an infraction or infringement of Part III of the Constitution. In such a case, the doctrine of pith and substance will be incapable of protecting the particular statute, that doctrine being no answer to the direct infringement or infraction of the constitutional guarantee and safeguard of Part III of the Constitution. I will not, therefore, rely on this doctrine of pith and substance to answer the petitioners' challenge in the instant case under the relevant Article of the Constitution, namely, Art. 31, but I will use it only for testing the legislative competence of the enacting Legislature in regard to the impugned legislation.

59. The two impugned sections, as we have seen above, were enacted by the West Bengal Legislature in the year 1948. At that time, this particular Legislature had under the constitutional enactment, then in force, namely, the Government of India Act, 1935, power of legislation over, inter alia, the provincial legislative list, as appended and detailed in List II of the Seventh Schedule of the said Act. The impugned sections were parts of the Police Act and related to regulation and control of traffic,— that is, or to be more precise, traffic in streets and public places in the town of Calcutta and suburbs,— a duty assigned to the Police under the said Acts [vide sec. 10A(1)(m), read with sec. 62(1)(b), of the Calcutta Police Act and sec. 4A(1)(m), read with sec. 39(1)(b), of the Calcutta Suburban Police Act]. In pith and substance, therefore, the particular legislation may well be regarded as a legislation on ‘Police’, which is item No. 3 of the above List II, and it is thus well within the legislative competence of the particular (enacting) Legislature. It is to be remembered, in this connection, as pointed out by the Supreme Court in two of its recent decisions, namely, R.R.N Mehdi v. The State of Bombay (43) (1959) 1 S.C.A 491 at pp. 498-9 and Chaturbhai M. Patel v. Union of India (44) A.I.R 1960 S.C 424, at pp. 428 and 429, that these List items or entries or heads of legislation should be given a large and liberal interpretation and the widest possible (permissible) amplitude and should be held to embrace all subsidiary or ancillary matters, fairly within its contemplation or comprehension (vide also the Dalmia case (45) 1958 S.C.A 754 at p. 764) and this also will aid and support our above conclusion.

60. In the circumstances, the impugned sections would not be invalid under section 299 of the Government of India Act, 1935, either because no compensation is provided for therein, or as a law of acquisition of property, not within the legislative competence of the enacting Legislature, that is, the legislature of the then Province of West Bengal, under any entry in the relevant Seventh Schedule of the then operative Constitution Act, namely, the Government of India Act, 1935, and the petitioners' reference in this connection to Item No. 9 of the Provincial List II of the said Seventh Schedule, which relates to and authorises acquisition of ‘land’,— but ‘land’ only though, possibly, in its widest and extended sense so as to include interest in land and benefits, arising out of land, etc, would neither be appropriate nor complete. The impugned sections, then, were not void ab initio or invalid, when the Constitution came into operation and they would thus be valid law in force at the time and so “existing law” and they would have been protected from challenge under Article 31 by reason simply of Clause (5) thereof but for Clause (6), which applies to all statute laws, enacted within the prescribed period of eighteen months (vide The State of West Bengal v. Mrs. Bela Banerjee (46) (1954) S.C.A 41) in the absence,— as is, admittedly, the case here,— of the necessary certificate or certification by the President. The invalidity, however, which would otherwise have attached to them by reason of the aforesaid non-action under Clause (6) was cured when the amended Article 31(2A) came into force on April 27, 1955, in view of the eclipse theory, referred to hereinbefore, as pronounded and explained in the several cases of the Supreme Court, cited above. This is enough to meet the petitioners' argument under section 299 of the Government of India Act, 1935, and/or Article 31 of the Constitution.

61. The petitioners' next attack on the impugned legislation and notifications is under Article 19, or, more precisely, under Article 19(1)(g), and the protection of Article 19(6) is sought to be denied on the ground that total prohibition is not restriction within the meaning of the said Clause, nor is it,— even regarded as a restriction,— reasonable restriction, as contemplated under the said saving Clause. For the first part of this argument, reliance is placed on the three well known English decisions, reported in Dick v. Badari (24) 10 Q.B.D 387; Municipal Corporation of City of Toranto v. Virgo (25) 1896 A.C 88, and Attorney-General for Ontario v. Attorney-General for the Dominion of Canada (26) 1896 A.C 348. Reference was also made to the three decisions of the Supreme Court in Saghir Ahmed's case (1) already cited, 1954 S.C.A 1218, at p. 1230, and The State of Bombay v. R.M.D Chamarbaugwala (33), A.I.R 1957 S.C 699 at p. 721 : (1957) S.C.A 867 at p. 910, and Mohd. Hanif Quareshi v. The State of Bihar (34) supra, A.I.R 1958 S.C 731 at p. 744 : 1958 S.C.A 783 at p. 805 to show that this particular point was left open in all the said three cases by the Supreme Court and is thus still res integra, so far this country is concerned, and should be decided in the petitioners' favour on the reasonings, given in the three English cases, cited. It is to be noticed, however, that, even the English authorities, relied on by the petitioners, do not lay down any absolute rule in this respect. They proceed upon particular statutes which furnish a particular context and it is recognised, even in those decisions (vide the last of them, namely (26) 1896 A.C 348 at p. 363 and the trend of decisions in the other two, namely (24) 10 Q.B.D 387 at pp. 392-393 and (25) 1896 A.C 88 at pp. 93-94) that the context or the scheme or structure of the particular legislation may well make a difference. This also was plainly emphasised by Lord Porter in the Australian case supra, before the Privy Council in Commonwealth of Australia v. Bank of New South Wales (28) (1949) 2 All. E.R 755 at pp. 771-3 : 1950 A.C 235 at pp. 309, 312, and this approach finds definite support and distinct acceptance in the latest pronouncement of the Supreme Court in the case of Narendra Kumar v. Union of India (27) A.I.R 1960 S.C 430. Indeed, this particular matter in its general aspect,— and, in so far at least, as it relates to or concerns the petitioners' specific contention that the rule is that ‘restriction’ does not include ‘prohibition’,— appears to be concluded against the petitioners by the aforesaid pronouncement of the Supreme Court in (27) A.I.R 1960 S.C 430 at p. 436. It may also be argued,— not without some force or reason or conviction,— that, strictly speaking, the present case is not one of total prohibition of, inter alia, any (lawful) trade, etc. so as to constitute infraction of any fundamental right under Article 19(1)(g) of the Constitution and that the impugned provisions partake more of the character of ‘restriction’ from the above constitutional point of view (vide in this connection the very apposite observations of the Supreme Court in Virendra v. The State of Punjab (12) 1958 S.C.A 891 at p. 897).

62. I would, accordingly, reject the petitioners' argument against the validity of the impugned sections and notifications, so far as it is based or founded on the distinction between prohibition and restriction (which, of course, includes regulation) as used in Article 19 of the Constitution.

63. As to the reasonableness of the intended restriction also, which, under the saving Clause (6) of the said Article 19, falls to be judged in the background of “the interests of the general public,” I do not feel much doubt, having regard, inter alia, to the context, purpose and object of the impugned provisions (including the challenged notifications). To this aspect, I shall return later with further details.

64. A point arises whether the impugned sections are valid pieces of delegated legislation, but here, too, the answer is that, although it may be argued—though that is not very clear,— that they partake more of the character of “delegated legislation” than of “conditional legislation” in that what is left over by the Legislature is not simply the matter of mere manner and time of application of the enacted law but of supply of essential details for its completion, it does not err on the side of unauthorised or excessive delegation. The underlying principle and policy of either of the two impugned sections is control or regulation of traffic for public safety [vide the statement of objects and reasons of the amending statute, namely, W.B Act XXXV of 1948, read with sec. 10A(1)(m) and sec. 62(1)(b) of the Calcutta Police Act and sec. 4A(1)(m) and sec. 39(1)(b) of the Calcutta Suburban Police Act]. The relative and relevant statutes aforesaid lay down and contain the above policy and give the necessary guidance by the principle, emanating from them or from the same, and, further, by indicating how that policy and principles is to be implemented, that is, by prescribing, inter alia, the prohibited types of vehicles, for implementing and effectuating the said policy and principle, leaving only the details to be worked out by the delegate, the Commissioner of Police, who, again, is the head of the City's (including suburbs') Police Administration, under the useful check and supervision of the State Government, whose sanction is a condition precedent to the Commissioner's relevant notification or notifications. In the circumstances, the impugned delegation will plainly come within the protective authority of Harisanker Bagla v. The State of Madhya Pradesh (15) 1954 S.C.A 824 : A.I.R 1954 S.C 465, as inter alia, the Legislation has laid down the policy and principle for the guidance of the delegate.

65. I am not unmindful that the mere fact that the State Government's sanction is a condition precedent will not, by itself, suffice to affirm the reasonableness of the particular restriction (vide Mineral Development Ltd. v. The State of Bihar (47) A.I.R 1960 S.C 468, at p. 472), particularly when such ‘restriction’ may well be said to be almost verging or tending to verge on ‘prohibition’. But the position of the delegate, in the light of that requirement of sanction, may aid and sustain a conclusion in favour of such reasonableness. The delegate here, as we have seen above, is the Commissioner of Police, who is the head of the City's (including suburbs') Police Administration. He is, certainly a top-ranking responsible officer who, unless he acts mala fide, may well be expected to be well-suited to the task and to supply the necessary details for the application of the particular statutory provision in furtherance or implementation of the underlying legislative policy and principle of regulation and control of traffic, as laid down in the relative statutes,— and to effectuate the same,— in the light of the guidance, contained therein, as mentioned hereinbefore. The delegation, then is neither excessive nor unreasonable as the statutes in question contains the policy and principle and necessary guidance (vide Bhatnagars' case (16) 1957 S.C.A 810 (Bhatnagars & Co. Ltd. v. Union of India) and it (the delegation) cannot be said to be unguided, unbridled or uncanalised power. Indeed, from the practical point of view, it is the most appropriate and this delegation is hardly open to challenge or criticism except on the ground of mala fides. This view is well-supported by both the letter and the spirit of the Supreme Court's pronouncements in the three recent cases of that Court, namely, Pannalal Binjraj v. Union of India (48) A.I.R 1957 S.C 397 at p. 410, Virindra v. The State of Punjab (12) 1958 S.C.A 891 at pp. 899-900 and Ram Krishna Dalmia v. Mr. Justice S.R Tendolkar* (45) A.I.R 1958 S.C 538 at pp. 549-550, and, in the light of the approach, indicated therein, no other view seems to be preferable and the above conclusion becomes almost irresistible.

66. The necessity of the measure, again, is fully borne out by the above statement of objects and reasons of the amending statute (West Bengal Act XXXV of 1948-the Calcutta and Suburban Police (amendment) Act, 1948), whereby the impugned sections were brought on the statute book, which are permissible references for ascertaining the underlying policy and principle and the object and purpose of a statute or statutory provision, where or when its virus is in question. This is now fairly well established on the authority of the Supreme Court. Indeed, the cases (vide, e.g, Hamdard Dawakhana v. Union of India (17) A.I.R 1960 S.C 554 at p. 559) have gone to the length of referring to the historical background for ascertaining the policy (vide also in this connection Bhatnagar's case (16) (1957) S.C.A 810 at p. 824, referring to (48) (1957) S.C.A 660), purpose and object of the particular legislation to uphold the constitutionality of the enactment under Part III of the Constitution and, accordingly similar reference and consideration will be permissible to affirm the reasonableness of the restriction in question “in the interests of the general public” under Article 19(6) of the Constitution on the oft-quoted and approved concept of reasonableness, as laid down in the following words:

“The test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases. 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” (Per Patanjali Sastri, C.J in State of Madras v. V.G Row, A.I.R 1952 S.C 196 at p. 200, cited with approval in Mohd. Hanif Quareshi v. State of Bihar, A.I.R 1958 S.C 731 at p. 744 and Mineral Development Ltd. v. State of Bihir, A.I.R 1960 S.C 468 at p. 470).

67. It has also been ruled by the Supreme Court that the words “in the interests of” are words of great amplitude and their ambit of protection and application is very wide and that must be kept in view when applying the above test of reasonableness to a particular impugned statute or provision under Article 19(6) of the Constitution (vide the case of Virendra v. State of Punjab (12) 1958 S.C.A 891 at pp. 898-9).

68. In the light of the foregoing authorities and principles and discussion of the materials before me, I am satisfied that the restriction or restrictions, intended by the two impugned sections, cannot be considered to be unreasonable so as to fall outside the protection of the saving clause (6) of Article 19. The impugned sections, therefore, do not contravene Article 19 either, being protected by clause (6) thereof.

69. Prima facie, also, the impugned sections, having regard to their form and structure would not be violative of Article 14, but it is argued that they, obviously, contain in themselves possibilities of unconstitutional use or application and, accordingly, they would be invalid under Article 14. Support for this argument is sought to be derived from Pannalal Binjraj v. Union of India (48) A.I.R 1957 S.C 397 at p. 410 : 1957 S.C.A 660 at p. 687, where the following passage occurs:

“The discretion vested has to be looked at from two points of view, viz., (1) does it admit of the possibility of any real and substantial discrimination, and (2) does it impinge on a fundamental right guaranteed by the Constitution? Article 14 can be invoked only when both these conditions are satisfied.”

70. But the matter, so far as the present case is concerned, appears to be fully covered against the petitioners by the observations of the Supreme Court in the very same case of Pannalal Binjraj v. The Union of India (48) 1957 S.C.A 660 at p. 683 : A.I.R 1957 S.C 397 at p. 408, where their Lordships stated, inter alia, that “even if there is a possibility of discriminatory treatment… such possibility cannot necessarily invalidate the piece of legislation” and, again, at page 684, that “the power is discretionary and not necessarily discriminatory and abuse of power cannot be easily assumed where the discretion is vested in top-ranking or high officials and that the possibility of discriminatory treatment cannot necessarily invalidate the legislation and where there is an abuse of such power, the parties aggrieved are not without ample remedies under the law and what will be struck down in such cases will not be the provision which invests the authorities with such power but the abuse of the power itself” and, also, by their Lordships' observations in the Dalmia's case (45) 1958 S.C.A 754, at p. 777, to the effect that “the bare possibility that the powers may be misused or abused cannot per se induce the Court to deny the existence of the powers”. The argument of infractious potentialities or possibilities for infraction or infringement of the Constitution or of constitutional guarantees or fundamental rights does not, therefore, aid or assist the petitioners.

71. In the context, the question of reasonable classification, so often discussed under Article 14, may not, strictly, arise with regard to the impugned sections, though it is, undoubtedly, relevant for judging the validity of the impugned notifications. Even, however, treating the impugned sections under Article 14 of the Constitution, they will be amply protected as on my finding made above that they— and the statutes, of which they form parts—lay down the policy or principle for guidance in the matter of the intended classification [vide R.K Dalmia's case (45) 1958 S.C.A 754 at pp. 772-3, class (iv)].

72. Before proceeding further, I deem it necessary to make one observation here. Mr. Roy, in arguing on the possibility of contravention of Article 14, sought to rest the petitioners' case on inter alia a distinction between abuse of a power under a statutory provision, leading to a constitutional violation, and use of a power under a statute, ostensibly within its terms, with the same unconstitutional effect, and he contended that the possibility of infraction of a constitutional guarantee by use, as aforesaid, as distinguished from abuse, will make the particular power or provision unconstitutional and invalid. In the context, in which this argument is made, I am unable to accept it. That context is that the statute in question is otherwise—that is, apart from this ban or that possibility of unconstitutional use,— perfectly valid. In the context, the use, spoken of by Mr. Roy, will itself be an abuse, when it infringes the Constitution, as no statute, constitutionally valid, can sanction unconstitutional use of power, or, to put it in another way, no statute, unless it is itself unconstitutional, can sanction unconstitutional use or exercise of power and it is well-settled too that when, of a statute, two views are possible, that view will be upheld as a matter of construction, which will prevent its unconstitutionality and, on such construction, unconstitutional use or exercise of power will, necessarily, be excluded from its sanction and will be tantamount to an abuse of the power. That, in my view, is the true effect of the two cases of the Supreme Court, reported in (48) (1957) S.C.A 660 and (45) 1958 S.C.A 754, supra.

73. The above discussion, however, makes it plain that the constitutional validity of the statutes will not, necessarily, preclude challenge on constitutional grounds of its use or of purported exercise of power under it and such use and/or exercise of power may be struck down, apart from mala fides, on the ground of violation or infraction or infringement of fundamental rights or guarantees under the Constitution. It is necessary, therefore, to examine the impugned notifications from this point of view and, if they are mala fide and/or have infringed or inspired upon or violated any constitutional guarantee, they cannot and ought not to be upheld. Mala fides have, no doubt, been alleged, but there is no proof of the same, on which the Court can act. The circumstances, on the other hand, which have been discussed in connection with the necessity and reasonableness of the statute will raise a presumption to the contrary and will rule out mala fide in the absence,—hardly open to dispute in the present case,—of strong evidence in proof or support thereof. The several circumstances, already noticed and emphasised to affirm the reasonableness of the impugned sections, will also aid and support the same conclusion regarding the impugned notifications, subject to one further consideration, namely, whether the restriction or restrictions, imposed by the notifications, err on the side of excess vis-a-vis the need, or, in other words, whether they are excessive or disproportionate to the particular mischief or evil, which they purport, propose or seek to cure and eradicate (vide Narendra Kumar v. Union of India (27) A.I.R 1960 S.C 430 at p. 436). This is one of the three aspects,— the other two will be referred to presently,—which have given me many anxious moments of distressing thoughts and deepest anxiety. But, having given the matter my best and most careful and intensive consideration upon the materials before me and in the absence of any workable concrete suggestion of a less rigorous restriction, which may suffice or serve the purpose and meet the genuine needs of the situation, I do not feel justified in pronouncing against the necessity or reasonableness of the impugned restriction or restrictions. The impugned classification, also from the point of view of discrimination under Article 14 of the Constitution, may not appear to be wholly without difficulties, but, here too, on the tests, approved and applied by the Supreme Court, the point must be answered against the petitioners. In the context of the object, policy and purpose of the parent sections, which the impugned notifications merely seek to implement or effectuate, and in the light of the State's affidavit-in-opposition and the grouping which the impugned classification appears to have made, that classification,— indeed, a well-defined one,— must be held to be based on an intelligent differentia, having a rational relation to the legislative object, thus supplying the requisite nexus between the basis of the classification and the object of the impugned sections and notifications. It is to be remembered also that, in judging the validity of an impugned provision under Article 14 of the Constitution, the facts and circumstances of each particular case, the general scheme of the particular impugned provision,— and of the parent statute as well,— and its nature and effect will have to be taken into account and the emphasis and approach will depend— and may have to be regulated on a cumulative consideration of all of them (vide Kangshari Haider v. State of West Bengal (49) A.I.R 1960 S.C 457 at p. 459). Looked at from this point of view and, on the reasons and circumstances, given in the affidavit-in-opposition, a sufficient case appears to have been made out in justification of the so-called unconstitutional differentiation, made by the notifications in question. It is impossible to accept the argument that if the requirement or policy be to eliminate slow traffic or to reduce it to a minimum, all,— or, substantially all,—slow-moving vehicles, of whatever type, must be banned at once and simultaneously. It seems to me that, in dealing with this aspect of the matter, degrees of harm, need and utility, exigencies of the situation and comparative urgencies will have to be taken into consideration and I am unable to say that in the facts before me, that consideration will not justify the impugned distinction and classification. Shrinivasa Reddy's case (31) (A.I.R 1960 S.C 350) cited and relied on by the petitioners, does not, when properly read, even apart from its fundamental distinctions, support the petitioners' extreme contention on this point.

74. Lastly comes the procedural challenge. This is clearly admissible (permissible, under the authority of Gurbachan Singh v. State of Bombay (19) (A.I.R 1952 S.C 221) but it has to be negatived in the particular facts of this case. The point has been fully dealt with by my Lords and I deem it unnecessary to add anything except drawing attention to one aspect of the matter, namely, that, having regard to the nature of the action, contemplated under the statute, and the occasion for it, provision for hearing or representation, with,— and even without,— a further provision for appeal, would frustrate the very object and purpose of the statute, which, obviously foresees and comprehends necessity for quick action in the interest of public safety in the day to day traffic administration of the town and suburbs of Calcutta. This part of the case also has given me some considerable moments of anxiety but having again, carefully considered the matter from all relevant points of view in the light of the materials on record and the pointed observations of the Supreme Court in Virendra's case (12) 1958 S.C.A 891 at p. 900, even conceding,— as it must be conceded,— that the situation there was more drastic and certainly much more extreme, I do not think that this procedural challenge should or ought to be accepted in the instant case.

75. Although during argument Mr. Roy hinted at a possible contention, based on Article 15, and the theory of “the children of the soil”, he did not ultimately press or pursue it, having regard to the phraseology of the said Article and the facts of this particular case and the absence of the necessary or any relevant allegations in this respect in the petition of any of the two instant Rules.

76. There was, at one stage, an argument, also, on the strength of the Corporation licenses, issued to the petitioners, but that argument was abandoned when the learned counsel's (Mr. Sen's) attention was drawn to section 610 of the Calcutta Municipal Act and also to the admitted and incontrovertible position that the Municipal authorities have no power in the matter of regulation and control of traffic which, under the law, is exclusively a matter for the Police.

77. I have, therefore, reached the conclusion that, on reasons, given by the Supreme Court in the several cases, cited hereinbefore on the particular point or points, and on the lines of approach, indicated therein, the impugned sections and notifications will be saved from challenge under the three Articles 14, 19 and 31 of the Constitution and also from the mischief of section 299 of the Government of India Act, 1935. I have also reached the conclusion that, on similar grounds, the charge of legislative incompetence of the enacting West Bengal Legislature in the matter of the impugned legislation, namely, the Amending Act (W.B Act XXXV) of 1948, which introduced the impugned sections on the statute book would also fail. No other argument was pressed on behalf of the petitioners.

78. In the premises, these Rules should be discharged. I would, however, respectfully add that, but for the Supreme Court decisions, cited above and upon which reliance has been placed by us, some of the arguments in support of the Rules might have deserved and required greater consideration and might have been more difficult to meet, but the Supreme Court, having, either directly or substantially, decided the point or points or the underlying principles, against the petitioners' contentions, the latter have, unfortunately for them, lost the advantage which might otherwise have been available to them, if the particular matter or matters had remained res Integra.

79. One word before I conclude. It is now, practically, settled law that Articles 19 and 31 of the Constitution are mutually exclusive (Vide The State of Bombay v. Bhanji Munji (23) (1955) 1 S.C.R 777 : 1954 S.C.A 1286. If, therefore, Article 31 applies, Article 19 cannot be invoked. Possibly, it is this realisation, which prompted Mr. Maitra to concentrate more on Art. 31 and Mr. Roy to lay greater emphasis on Article 19. Both of them have argued well and put their respective Cases with admirable skill and thoroughness and conspicuous ability and, if, in spite of that, their clients are losing, it is because, in the ultimate analysis, they have struck against the impregnable rock of binding judicial decisions and the guaranteed public interest under the Constitution, as read and interpreted in those decisions.

80. In the result, then, I agree with my Lords that these Rules should fail and they should be discharged without Costs.

S.K.B