Man Singh & Ors Vs. State of
Punjab & Ors [1985] INSC 186 (23 August 1985)
PATHAK, R.S. PATHAK, R.S.
TULZAPURKAR, V.D.
MUKHARJI, SABYASACHI (J)
CITATION: 1985 AIR 1737 1985 SCR Supl. (2)
662 1985 SCC (4) 146 1985 SCALE (2)367
CITATOR INFO: R 1987 SC 648 (4,8)
ACT:
Constitution of India 1950, Articles 14,
19(1)(g) & 21.
Punjab Cycle Rickshaws (Regulation of
licence) Act, 1976 Sections 3 & 5.
Cycle Rickshaw - Licence - Grant of - Vehicle
to be plied by owner himself - Whether - Valid - Constitutional.
Statutory Interpretation.
Validity of statute - Determination of - Duty
of court Consider the degree of encroachment of citizen's right -
Reasonableness can be determined on surrounding circumstances and
contemporaneous legislation.
HEADNOTE:
The Petitioners in the Writ Petition ply
cycle rickshaws which they hire for the day from the owners of those vehicles.
They carry on that activity for about eight months in the year and then return
to the region to which they belong. Por the hire of cycle rickshaws they pay
the owners a certain sum for the day retaining the balance of the day's income
to themselves. They are not in a position to purchase any cycle rickshaws.
Unless they hire the vehicles they cannot carry on that activity. Oppressed by
poverty this arrangement of cycle rickshaw hire has been resorted to with the
owners who through such exploitation obtain an unduly handsome return on the
paltry investment made in the purchase of the cycle rickshaws.
The Punjab Legislature, enacted the Punjab' Cycle
Rickshaws(Regulation of Licence) Act, 1976 and 8. 3 thereof provided that no
owner of a cycle rickshaw shall be granted any licence in respect of his cycle
rickshaw nor his licence shall be renewed by any municipal authority after the
commencement of the Act, unless the cycle-rickshaw is to be plied by such owner
himself. Sec. 5 663 of the Act provided for penal punishment of any person
found to A be in possession of a cycle-rickshaw without a licence conforming to
the provisions of the Act.
The constitutional validity of the Punjab
Cycle Rickshaw (Regulation of Licence) Act, 1976 was challenged and this Court
In M/S Azad Rickshaw Pullers Union v. State of Punjab, [1981] 1 S.C.R. 366,
framed the following scheme:
(a) Every rickshaw puller in Amritsar or
other municipality who had been a licence within one year of the coming into
force of the Act shall be entitled to apply to the Municipal Commissioner for a
certificate or other document to the effect that he had been a licence for
rickshaw pulling.
(b) The Municipal Commissioner will verify
the records and will grant the necessary certificate or other document within
one month from the date of the application.
(c) On receipt of the Municipal certificate
the rickshaw puller will apply to the Credit Guarantee Corporation of India
(Small Loans) under the Guarantee scheme of 1971 for advance of a loan upto Rs.
900.
(d) The loan amount shall be repaid by the
rickshaw puller in 15 monthly installments. If there are delayed payments of
installments of loan, higher rate of interest will be recoverable.
(e) When the rickshaw pullers during the
agricultural season go to work in their fields, they shall nominate other
rickshaw pullers without employment to ply the rickshaws during that season.
The Municipal Commissioner, if satisfied that the nomination made is bona fide
will issue licence to such pullers, or nominees of the licensed rickshaw
pullers, in the agricultural season.
The petitioners in their Writ Petitions
contended that the 1976 enactment resulted in making their conditions much
worse, for whereas formerly they could at least ply the cycle rickshaws on
hiring them from the owners for a sum, they were unable to do so now,
especially as they did not have the funds, nor possessed the arrangements for
obtaining a loan for the purpose, and as they were not permanent residents of
Amritsar, no one was prepared to stand sure q for the amount they sought to
borrow from the Banks. It was further contended that this scheme of this 664
Court in M/S Azad Rickshaw Puller's Union v. State of Punjab had not been
implemented by the Amritsar Municipal Corporation and consequently the
provisions of the Punjab Act of 1976 had continued to operate with unbated
severity to their detriment, and that it be declared ultra vires as an
unconstitutional violation of the fundamental right under sub.cl.(g) of cl.(l)
of Article 19 of the Constitution to carry on occupation or business. As a
similar restriction is not imposed on taxi drivers, cart load carriers, three
wheeler auto rickshaw drivers and other vehicles plying for public hire the
Punjab Act violates the fundamental rights guaranteed by Articles 14 and 16 of
the Constitution, The scheme propounded by the Court has failed because the
Municipal Administration did not make any real attempt to implement it.
The Writ Petitions were contested by the
Amritsar municipal Corporation. It was contended that the cost of a cycle
rickshaw being about Rs.1200 a person with substantial financial resources
would purchase a number of cycle rickshaws and hire them out to rickshaw
pullers at Rs. 8 per day irrespective of the income earned by the rickshaw
puller, thus earning over 150 per cent interest over his investment. To protect
poor and needy rickshaw pullers from such exploitation, the Legislature enacted
the Punjab Act of 1976 to enable rickshaw pullers to escape the clutches of
middlemen. Between the enforcement of the Punjab Act and the formulation of the
scheme in Azad Rickshaw Puller's Union the Corporation renewed more than nine
thousand licences in favour of individual rickshaw pullers who were owners of
the rickshaws plied by them. No limit on the number of cycle rickshaws to be
plied had been imposed by the Municipal Corporation.
On the question: (l) Whether the Punjab Act
of 1976 is an instance of incomplete legislation and cannot serve the purpose
for which it Was intended and because of the prohibitions and restraints
incorporated in it, it constitutes an unreasonable restriction on the
fundamental rights guaranteed under sub-cl.(g) of cl.(l) of Art. 19 of the
constitution and also violates Articles 14 and 16 of the Constitution. (2)
Whether the scheme framed by this Court in Azad Rickshaw Puller's Union is
incapable of proper implementation, and therefore of no legal effect.
Dismissing the Writ Petitions, ^
HELD: 1. (a) The Punjab Cycle Rickshaws
(Regulation of Licence) Act 1976 cannot be regarded as an unreasonable
restriction on the fundamental rights of the petitioners under Art. 21 read
with sub-cl.(g) of clause (1) of Article 19 of the Constitution. [680 A] 665
(b) The Punjab Cycle Rickshaws (Regulation of Licence) Act A of 1976 regulates
the issue of licenses in respect of cycle rickshaws plying in any Municipal
area in the State of Punjab. It essentially provides that no owner of a cycle
rickshaw will be granted a license in respect of his cycle rickshaw unless the
vehicle is plied by the owner himself.
The intention of the statute is to ensure the
plying of cycle rickshaws by rickshaw pullers who are owners of the vehicle thus
eliminating the middleman who owns the vehicle.
[675 E] (c) The true test of the validity of
a statute must be the effect and consequence of its operation on the
fundamental right of the citizen. The object underlying the legislation
embodies the intent of the legislature in enacting it, but in construing its
validity in the context of a citizen's fundamental right the question before
the Court always must be whether its impact on the fundamental right can be
regarded as a reasonable restriction on the exercise of the right. The focal
point during such examination is the fundamental right, and the duty of the
Court must be to consider the quality and degree of the encroachment made by
the operation of the statute on the citizen's exercise of that right. [676 D-E]
Maneka Gandhi v. Union of India, [1978] 2 S.C.R. 621, R.C. Cooper v. Union of
India, [1970] 3 S.C.R.53C, referred to.
In the instant case, 8. 3 of the Punjab Act
of 1976 has the effect of making it possible for the rickshaw puller to ply the
rickshaw as owner of the vehicle and thereby to be the full owner of the income
earned by him. No longer will he be obliged to pare with an appreciable portion
of that income in favour of another who owns the vehicle. The Punjab Act is a
beneficial legislation bringing directly home to the rickshaw puller the entire
fruit of his daily toil. The enactment is intended as a social welfare measure
against the exploitation of the poor and unemployed by rapacious cycle rickshaw
owners who by reason of their superior financial resources fatten their wealth
from the sweated toil of rickshaw pullers. The legislation constitutes a
reasonable restriction on the right of such rickshaw owners to carry on the
business of hiring out cycle rickshaw inasmuch as the exercise of the right ld
excluded by legislation designed for the economic and social welfare of
rickshaw pullers, who constitute a significant sector of the people, a sector
80 pressed by poverty and straitened by the economic misery of their situation
that the 666 guarantee of their full day's wages to them seems amply justified.
[676 F-677 B] 2.(a) The scheme framed by this Court in Azad Rickshaw Pullers
Union is a good scheme, capable of implementation, and productive of the
objective for which it was designed.
If it has not been successfully implemented
so far, it is in the main largely on account of circumstances which could have
been avoided. Inherently there is no feature in the scheme which operates
against its effectiveness. If the scheme has not succeeded as was intended by
the Court, it is largely because appropriate action was not taken by the
parties concerned to implement it. [680 D] (b) It is permissible to judge the
reasonableness of a law on the basis of the surrounding circumstances as well
as of contemporaneous legislation enacted as part of a single scheme. [678 D]
The Lord Krishna Sugar Mills Ltd. & Anr. v. The Union of India & Anr.
[1960] 1 S.C.R. 39, referred to.
(c) The Punjab Act confers on the State
Government by
8. 7, power to frame appropriate rules in
support of and for the furtherance of the object of the Act. In the event of
the scheme being altered or modified by its authors to a degree incompatible
with the true operation and success of the Punjab Act, the situation can always
be met by the State Government framing suitable rules under 8 7 of the Act. The
State Government is not only empowered to do so; it is under an obligation to
frame rules appropriate to the successful implementation of the legislative
goal. [679 F] (d) The Municipal Corporation should determine the maximum number
of licenses which should be granted for plying cycle rickshaws within its
jurisdictions limits, keeping in mind the needs of the travelling public on the
one hand and the danger of uneconomic plying on the other.
Every rickshaw puller proposing to take
advantage of the scheme should apply to the Municipal Commissioner for a
certificate, the period within which such applications may be filed being
certified by the Municipal Corporation from time to time. All the applications
will be consider ed, in the serial order in which they are received, for the
grant of certificate on the basis of which the rickshaw puller may take further
steps envisaged in the scheme for the grant of financial 667 assistance enabling
him to purchase a cycle rickshaw for plying A by him. The issue of the
certificate shall be subject to the following conditions: [680 H-681 B]
1. Each certificate shall be granted in
respect of one cycle rickshaw only. [681 C]
2. The number of certificates issued shall /
t exceed the maximum, if any, fixed by the Municipal Corporation as the total
strength of the cycle rickshaws allowed to ply within its jurisdictional
limits. [681 D]
3. No person shall be granted more than one
such certificate. [681 E]
4. Preference shall be given in the matter of
granting certificates to those rickshaw pullers who had plied a cycle rickshaw
for one year before the Punjab Act came into force.
[681 E] D
ORIGINAL JURISDICTION: Writ Petition
(Civil) Nos.
57286308 of 1982.
(Under Article 32 of the Constitution of
India) V.M. Tarkunde and S.M. Ashri for the Petitioners.
Naunit Lal and S.K. Bagga for the
Respondents.
The Judgment of the Court was delivered by
PATHAK, J. The petitioners in these writ petitions ply cycle rickshaws in
Amritsar which they hire for the day from the owners of those vehicles. Most of
the petitioners belong to other districts of Punjab and also come from the
neighbouring States of Jammu and Kashmir, Himachal Pradesh and Uttar Pradesh.
They carry on that activity for about eight months in the year and then return
to the regions to which they belong. They observe this practice year after
year. For the hire of cycle rickshaws they pay the owners a certain sum for the
day, retaining the balance of the day's income to themselves. It is alleged by
the petitioners that they are not in a position to purchase any cycle rickshaws
and that unless they hire the vehicles they cannot carry on that activity.
Over the years there has been considerable
agitation in the State of Punjab against the practice of the owners of cycle
668 rickshaws hiring people of the poorest stratum in society to ply the cycle
rickshaws for public passenger traffic and to charge them for each day's use of
the vehicles. It is said that oppressed by their poverty the petitioners and
those similarly placed are obliged to enter into this arrangement with cycle
rickshaw owners, who through such exploitation are able quite often to obtain,
an unduly handsome return on the paltry investment made in the purchase of the
cycle rickshaws. The agitation led the State Government to consider measures
for enabling the pullers of cycle rickshaws to extricate themselves from such
exploitation, and it was thought desirable that the cycle rickshaw pullers
should own their own vehicles, and the State Government should arrange interest
free loans for them to enable them to purchase cycle rickshaws. With this
object in mind, the Punjab Legislature enacted the Punjab Cycle Rickshaws
(Regulation of Licence) Act. 1976.
S. 3 provided:
Licence for cycle-rickshaws.- (1)
Notwithstanding anything contained to the contrary in the Punjab Municipal Act,
1911, or any rule or order or bye- law made thereunder or any other law for the
time being in force, no owner of a cycle-rickshaw shall be granted any licence
in respect of his cycle- rickshaw nor his licence shall be renewed by any
municipal authority after the commencement of this Act unless the
cycle-rickshaw is to be plied by such owner himself.' And s. 5 declared:- "Penalties.-
(1) Any person who is found to be, in possession of a cycle-rickshaw without a
licence conforming to the provisions of this Act or plies or causes it to be
plied by a person without a valid driver's licence issued under any law for the
time being in force or plies or causes to be plied a cycle-rickshaw not meant
to be plied for hire without painting the body thereof in yellow shall be
punishable with imprisonment which may extend to three months.
The petitioners considered that the enactment
had resulted in making their conditions much worse for whereas formerly they
could at least ply the cycle-rickshaws or hiring them from the 669 owners for a
sum, they were unable to do so now, specially as they did not have the funds,
nor possessed the arrangements for obtaining a loan for the purpose. It was
pointed out that as the petitioners were not permanent residents of Amritsar,
no one was prepared to stand surety for the amount which they sought to borrow
form the Banks, that inasmuch as the Banks at Amritsar had been unable to
recover about eighty per cent of the amount loaned by them they had decided to
deny this facility to cycle-rickshaw pullers, and that, therefore, they were
not in a position to purchase cycle-rickshaw. In the circumstances, a number of
cycle rickshaw pullers filed Civil Writ Petition No. 563 of 1979 Nanak Chand
& Ors. v. State of Punjab & Ors. and Writ Petition No. 839 of 1979 Azad
Rickshaw Pullers Union (Regd.) Ch. Town Hall, Amritsar & Ors. v. The State
of Punjab & Ors. [1981] 1 SCR 366.
Meanwhile, and to the same end, the Municipal
Corporation of Delhi had amended the Cycle-rickshaw Bye-laws of 1960. After
amendment, bye-law 3 read as follows:- "3 (1) No person shall keep or ply
for hire a cycle rickshaw in Delhi unless he himself is the owner thereof and
holds a licence granted in that behalf by the Commissioner on payment of the
fee that may, from time to time, be fixed under sub- section (2) of section 430
provided that no person shall be granted more than one such licence- (2) No
person shall drive a cycle rickshaw for hire unless he holds a driving licence
granted in that behalf by the Commissioner on payment of the fee that may, from
time to time be fixed under sub-section (2) of Section 430.
The bye-laws framed by the Delhi Municipal
Corporation were challenged by cycle rickshaw pullers in Writ Petition No.
841 of 1980 Nanhu & Ors. v. Delhi
Administration & Ors.
[1981] 1 SCR 373.
The two Writ Petitions Nos. 563 and 839 of
1979 filed by the cycle rickshaw pullers of Amritsar were disposed of by this
Court on August 5, 1980 by a judgement in which the Court decided not to enter
into the question of the constitutional validity of the Punjab Act but, on the
contrary, to frame a scheme in furtherance of the Act and for the purpose of
giving effect to it. Likewise 670 on the same day this Court disposed of Writ
Petitions Nos.
841 of 1980 and 728 of 1980 pertaining to the
cycle rickshaw pullers of Delhi, and the judgment proceeded on the same lines
as in Amritsar Writ Petitions.
The scheme propounded by the Court in Azad
Rickshaw puller Union (supra) was intended to be a self-working, specific
scheme which makes the statutory ban not a negative, self-defeating interdict,
but a positive economic manumission , and to apply to the entire State of
Punjab.
Its principle features may be set forth here.
1. Every rickshaw puller who had been a
licensee in the Amritsar or other municipality within one year of the coming
into force of the Punjab Act of 1976 would be entitled to apply to the
Municipal Commissioner within one month from the date of the judgment (August
5, 1980) for a certificate testifying that he had held a licence for rickshaw
pulling within that period. The Municipal Commissioner would, after
verification from the records, grant the certificate within one / nth of the
date of application, taking a liberal attitude in the matter of issuing the
certificate.
2. On receipt of the certificate or other
document the rickshaw puller could apply to the Credit Guarantee Corporation of
India (Small Loans) under the Guarantee Scheme of 1971, requesting the
Corporation to stand guarantee to the Punjab National Bank or other. mutually
agreed upon schedule bank for advance of a loan upto Rs.900 (or for a larger
sum if the price of a cycle rickshaw was more than Rs.900).
3. The rickshaw puller would deposit a sum of
Rs.50 with the Bank as a condition of eligibility for obtaining the loan, and
the balance of the loan would be guaranteed by the aforesaid Corporation. Upon
fulfillment of those conditions, the Bank would advance the sum required for
the purchase of a cycle rickshaw to the manufacturer or vendor indicated by the
rickshaw puller.
4. Upon taking delivery of the cycle rickshaw
and producing before the Bank the voucher evidencing purchase and delivery
along with the rickshaw, if needed, for physical verification within one week
of taking such delivery, and thereafter whenever directed, the rickshaw puller
would execute the necessary documents required by the Bank in order to hypothecate
the vehicle in favour of the Bank.
671
5. The rate of interest payable by the
rickshaw puller to A the Bank would be governed by the Scheme framed by the
State Government for loans to rickshaw pullers.
6. The loan would be repaid by the rickshaw
puller in 15 monthly instalments. If payment of the instalments is delay-ed,
higher rates of interest would be recoverable in accordance with the 1971
scheme. In the event of the instalment being duly paid, the Government would
reimburse the rickshaw puller with the total amount of interest.
7. Some further facilities for the rickshaw
pullers would be included within the Scheme. For example: (1) The Rickshaw
Puller Union would be permitted by the Municipality to set up and run a
workshop for repair and allied work and a service station for the cycle
rickshaws. Sufficient place would be allowed in suitable places for rickshaw
stands and for the safe keeping of rickshaws subject to moderate charges. (2)
Where during the agricultural season and rickshaw puller nominated other
unemployed persons to ply the rickshaws during that season the Municipal
Commissioner, on satisfaction that the nomination was made bona fide, would
issue licences to the nominees for the duration of the agricultural season.
8. If group insurance of the life of the
rickshaw pullers and of their rickshaws was feasible the Municipal Commissioner
would prepare a scheme in that behalf in consultation with the Rickshaw Puller
Unions.
9. Likewise, the Municipal Commissioner would
also draw up a project whereby cycle rickshaws would be replaced by scooters in
successive phases so that the rickshaw pullers could ultimately become scooter
drivers owning their own scooters.
The scheme formulated by the Court in Nanhu
& Ors.
(supra) for the Delhi Cycle Rickshaw pullers
contained the same features. The Delhi Administration had imposed a ceiling on
the total number of cycle rickshaws permissible on the road within its
territory, and the Court directed the Delhi Administration to consider applications
by rickshaw pullers for licenses on their merits, including consideration of
the period during which the applicants had carried on such activity.
In 1982 the present writ petitions were filed
by a number of rickshaw pullers of Amritsar, who complained that the scheme 672
propounded by this Court had not been implemented by the Amrtisar Municipal
Corporation and in the result the provisions of the Punjab Act of 1976 had
continued to operate with unabated severity to their detriment. They pray that
the Punjab Act be declared ultra vires as an unconstitutional violation of
their fundamental right under sub-cl. (g) of cl. (1) of Article 19 of the
constitution to carry on their occupation or business. They also contend that
as a similar restriction is not imposed on taxi drivers, cart load carriers,
three wheeler auto-rickshaw drivers and other vehicles plying for public hire
the Punjab Act violates the fundamental rights of the petitioners guaranteed by
Articles 14 and 16 of the constitution. In this connection they also point out
that 20,000 cycle rickshaws are being allowed to ply in Ahmedabad, Agra,
Kanpur, Varanasi, Patna, Calcutta and Nagpur, cities with a population not less
than that of Amritsar, by rickshaw pullers who do not own the vehicles plied by
them. The petitioners say that the Scheme propounded by the court has failed
because the Municipal Administration did not make any real attempt to implement
it.
In opposing the writ petitions the Amritsar
Municipal Corporation affirms that the cost of a cycle rickshaws being about
Rs.1200 a person with substantial financial resources would purchase a number
of cycle rickshaws and hire them out to rickshaw pullers at Rs.8 per day
irrespective of the income earned by the rickshaw puller, thus earning over 150
per cent interest over his investment after taking into account expenditure
incurred in petty repairs. To protect poor and needy rickshaw pullers from such
exploitation the Punjab Legislature 'had enacted the aforesaid Punjab Act of
1976 to enable rickshaw pullers to escape from the clutches Of such middle-men.
lt was asserted that with the Punjab Act coming into force a large number of
rickshaw pullers had taken advantage of the Act and purchased their own cycle
rickshaws under the Punjab Government Scheme by securing loans from the Banks.
It seems that between the enforcement of the Punjab Act and the formulation of
the scheme by this Court in Azad Rickshaw Pullers Union (supra) the Amritsar
Municipal Corporation had already renewed more than nine thousand licences in
favour of individual rickshaw pullers, who were owners of the rickshaws plied
by them. No limit on the number of cycle rickshaws to be plied had been imposed
by the Municipal Corporation. According to the Amritsar Municipal Corporation
the individual rickshaw pullers failed to apply to the Municipal Corporation
for the requisite certificates enabling them under the Scheme to apply to a
schedule Banks for a loan. It 673 transpires, however, that the Azad Rickshaw
Pullers Union deposited 1170 applications, purporting to be from individual
rickshaw pullers, with the Amritsar Municipal Corporation for certificates in
accordance with the terms of the Scheme and this, it was said, was done between
the first week of August, 1980 and the first week of September, 1980.
It is alleged by the petitioner that these
applications have remained pending with the Municipal Corporation ever since
and no certificate has yet been issued pursuant to any of those applications.
The material on the record, however, discloses that on September 16, 1980 the
Municipal Corporation wrote to the Azad Rickshaw Pullers Union asking it to
direct the individual applicants to furnish the license numbers of the previous
rickshaw driving licenses issued within one year of the coming into force of
the Punjab Act of 1976 in order to enable the Municipal Corporation to verify
from its records that the respective applicants were entitled to the
certificate. The Municipal Corporation has stated on affidavit that the names
and addresses of the applicants set forth in many of the applications were
illegible, some of them were not even signed or bore the impression of the
applicant's thumb mark, that some of the applications had been submitted in
duplicate or triplicate in order to obtain more than one certificate for the
same applicant, that all the applications were made on the printed form of the
Azad Rickshaw Pullers Union, and in the circumstances it became necessary for
the Municipal Corporation to ask that Union to direct the applicants to furnish
the license numbers of their rickshaw driving licenses 80 that the certificates
could be issued without delay. It is pointed out that the said Union wrote back
on October 3, 1980 that as it had not been possible for the rickshaw pullers to
preserve the old licenses they could only make a statement that they had been
plying rickshaws in the past and the Municipal Corporation should verify from
its records whether the applications were in order. It is stated that none of
the applicants presented himself nor produced any licenses or License number
thereafter. The Municipal Corporation wrote on December l, 1980 again to the
said Union for the information required from the applicants 80 that further
action could be taken in the matter. It is said that the thing was done by the
applicants or by the said Union and ultimately the Municipal Corporation, after
waiting for a considerable time for a response from the applicants, decided to
attempt to trace out the names of the applicants from its old records. The
task, it appears, took a considerable time, and according to the Municipal
Corporation it was hampered by the fact that the names and addresses of the
applicants were not clearly legible on the 674 applications and in some cases
the addresses were incomplete. The Municipal Corporation affirm that
notwithstanding the lack of cooperation from the applicants it was able to
prepare as many as 785 certificates by November 22, 1983 and a letter was
written by the Municipal Corporation to the said Union asking the applicants to
collect their certificates. It is alleged that none of the applicants turned
up. According to the Municipal Corporation the applicants are merely pawns in
the hands of the previous owners of the cycle rickshaws and are being manipulated
by them.
It also appears that the Municipal
Corporation received a letter dated September 1, 1980 from the Azad Rickshaw
Pullers Union for permission to use the rickshaw stand already situate at the
General Bus Stand, Amritsar as a rickshaw repairing workshop. There was a
further letter dated September 17, 1980 from the Azad Rickshaw Puller Union for
allotment of land for rickshaw sheds and rickshaw stands to enable the rickshaw
pullers to keep their rickshaws in safe custody during their leisure hours and
during the night. The allotment of land was requested in five different
localities of the city 80 that a corresponding number of sheds could be raised,
the land required for each shed being 10,000 square meters. On October 4, 1980
the Municipal Corporation replied that there was no vacant land at the places
mentioned by the said Union and that land at some other suitable places may be
suggested. By a letter dated December 1, 1980 the Municipal Corporation
reminded the said Union that it should suggest alternative places for providing
sheds for the rickshaws. It is alleged that thereafter there was no reply.
There are other affidavits on the records, some of them having been filed by
other rickshaw puller Unions of Amritsar alleging that some rickshaw pullers
had already availed of the benefit of the Scheme propounded by this Court and
were plying rickshaws on loans taken from the Banks. Then there are
applications for intervention by Rickshaw Pullers Union belonging to other
Municipalities in Punjab which suggest that the Municipal Committee concerned,
purporting to act under the Scheme propounded by this Court, have entered upon
a course of rampant corruption, granting a number of certificates to a single
applicant behind whom stand the old rickshaw owners who are thus perverting the
scheme for their own greedy ends. In other words, the original rickshaw owners
are attempting, through false applications made in the name of fictitious
persons, to secure certificates enabling them to put a number of vehicles on
the road. Further affidavits have been filed in support of the writ petition
testifying to the difficulty in obtaining certificates from the Municipal
Corporation and there 675 after loans from the Banks and to the impossibility
of plying Rickshaws without proper arrangements for safely parking them for the
night. There are allegations on both sides, the petitioners being accused of
having been set up by the original owners of the vehicles in order to have the
Punjab Act of 1976 struck down by the Court and on the other side the Municipal
Corporation being accused of unwillingness to work the Scheme propounded by the
Court.
Two questions arise before us. The first is
whether the Punjab Act of 1976 is an instance of incomplete legislation and
cannot serve the purpose for which it was intended and in the circumstances,
because of the prohibitions and restraints incorporated in it, it constitutes
an unreasonable restriction on the fundamental rights of the petitioners
guaranteed under sub-cl.(g) of cl.(l) of Art.19 of the Constitution and also
violates Articles 14 and 16 of the Constitution. The second question is whether
the scheme framed by this Court in Azad Rickshaw Pullers Union (supra) is
incapable of proper implementation, and therefore of no legal effect.
The Punjab Act of 1976 regulates the issue of
licenses in respect of cycle rickshaws plying in any municipal area in the
State of Punjab. It contains very few provisions, and essentially provides that
no owner of a cycle rickshaw will be granted a license in respect Of his cycle
rickshaw unless the vehicle is plied by the owner himself. She intention of the
statute is to ensure the plying of cycle rickshaws by rickshaw pullers who are
owners of the vehicle, thus eliminating the middlemen who owns the vehicle.
The petitioners contend that 8.3 o the Punjab
Act constitutes an unreasonable restriction on their fundamental right under
sub-cl.(g) of clause (1) of Article 19 of the Constitution to carry on their
occupation of plying cycle rickshaws because the exercise of that right has
been mate dependent upon their owning the cycle rickshaws piled by them. It is
urged that the constitutional validity of the impugned legislation cannot be
sustained on the basis of an administrative scheme which has not been
sanctioned by it, and there is nothing in the Punjab Act itself which enables
rickshaw pullers to acquire proprietary rights in cycle rickshaws plied by
them. It is urged that while the object of the statute has been expressed in
8.3 of the Punjab Act, there is nothing in the Act which provides the machinery
for achieving that object. It is not sufficient, it is said, to provide that
676 the rickshaw puller should own the cycle rickshaw which he plies. The
statute should have provided the mechanics of a system which would have enabled
rickshaw pullers, in their abject poverty, to become the owners of such
vehicles. No such provision having been made in the statute, it is submitted,
the Act represents at best a declaration of policy and nothing more. Our attention
has been invited to the observations of this Court in Maneka Gandhi v. Union of
India [1978] 2 S.C.R. 621, where it has been elaborately explained that Article
21 must be read with Article 19 in adjudging the constitutional validity of an
Act, and in doing so the consequences brought about by the impugned
legislation, and of the action under it, on the citizen must constitute the
test of its validity rather than the object of the Legislature or the form of
action. Reference was made in this connection to the law laid down in B.C.
Cooper v.
Union of India [1970] 3 S.C.R. 530, and other
cases. It cannot be disputed, it seems to us, that the true test of the
validity of a statute must be the effect and consequence of its operation on
the fundamental right of the citizen.
The object underlying the legislation
embodies the intent of the Legislature in enacting it, but in construing its
validity in the context of a citizen's fundamental right the question before
the Court always must be whether its impact on that fundamental right can be
regarded as a reasonable restriction on the exercise of the right. The focal
point during such examination is the fundamental right, and the duty of the
Court must be to consider the quality and degree of the encroachment made by
the operation of the statute on the citizen's exercise of that right.
In the instant case, s.3 of the Punjab Act
has the effect of making it possible for the rickshaw puller to ply the
rickshaw as owner of the vehicle and thereby to be the full owner of the income
earned by him. No longer will he be obliged to part with an appreciable portion
of that income in favour of another who owns the vehicle. The Punjab Act is
beneficial legislation bringing directly home to the rickshaw puller the entire
fruit of his daily toil. m e enactment is intended as a social welfare measure
against the exploitation of the poor and unemployed by rapacious cycle rickshaw
owners who by reason of their superior financial resources fatten their wealth
from the sweated toil or rickshaw pullers. Even if we look at the impugned
legislation from the point of view of its impact of the fundamental right of
rickshaw owners who give them on hire to rickshaw pullers for plying, it is
plain that the legislation constitutes a reasonable restriction on the right of
such rickshaw owners to carry on the 677 business of hiring out cycle rickshaws
inasmuch as the exercise A of the right is excluded by legislation designed for
the economic ant social welfare of rickshaw pullers, who constitute a
significant sector of the people, a sector 80 pressed by poverty and straitened
by the economic misery of their situation that the guarantee of their full
day's wages to them seems amply justified.
On the question whether the Punjab Act is
incomplete in itself and, 88 it stands, has the effect of disabling rickshaw
pullers from carrying on he occupation of plying cycle rickshaws because of the
condition of ownership in the cycle rickshaws, the Court is entitled to
consider the factual matrix in which the Punjab Act was enacted for the purpose
of determining its validity. The record of the case discloses that for several
years a powerful movement has raged aimed at freeing the rickshaw pullers from
exploitation by cycle rickshaw owners. The owner is usually a person of
sufficient wealth enabling him to acquire a number of cycle rickshaws. The
rickshaw puller, on the contrary, is a needy person, beaten by poverty and
compelled to ply the rickshaw on terms dictated by the owner, who taking
advantage of the desperate plight of the rickshaw puller is in a position to
demand a wholly disproportionate hire charge for the use of the vehicles The
labour and toil, and the sweat and strain, involved in pulling the cycle
rickshaw works, in a few years, serious injury to the health and stamina and
life-span of the rickshaw puller. He must toil the whole day long in order to
earn a small income, most of which he must hand over to the owner in payment of
the hire charge. In the circ circumstances, the Government prepared a scheme as
early as 1970 to enable the rickshaw puller to extricate himself from the
shackles of a system which, for several decades, had debased and condemned him
to a lamentable existence. The object was to assure him a life where the entire
fruit of his labour and industry would accrue to his own benefit. We have on
the record before us a circular No. RMJ/1734/73 dated August 6, 1973 issued by
the Jullunder Circle of the Punjab National Bank. Fr . the very beginning, the
scheme extended a number of concessions to rickshaw pullers, and as it stood in
1973 it provided for loans by the Banks to rickshaw pullers. The loans were
intended for such individuals who did not already own any rickshaw and who had
been issued a certificate to ply a rickshaw by the municipal authority. The
loan was intended for the purchase of a new cycle rickshaw ant extended to 90%
of the total cost of rickshaw or Rs.700 whichever was lower.
The rickshaw purchased with the loan was to
be hypothecated to the bank and 678 registered with the municipal authority in
the name of the borrower as owner and the bank as financier. The advances would
be covered by a guarantee extended under the Credit Guarantee Corporation of
India (Small Loans) Guarantee Scheme, 1971. The scheme contained further
details relating to payment' of interest, the documentation required, the mode
of disbursement, the terms of repayment of the loan and so on. It was in this
factual context and in order to give statutory recognition to the object
underlying the scheme that the Punjab Act in 1976 was enacted.
But learned counsel for the petitioners
contends that the validity of s.3 of the Punjab Act cannot be sustained on the
basis of a scheme which can be varied it will by the authors of the scheme
during the operation of the Punjab Act. The scheme, it is said, may be altered
to a degree where it cease to be identifiable with the object of the impugned
legislation. Reliance is placed by learned counsel on The Lord Krishna Sugar
Mills Ltd. & Anr. v. The Union of India & Anr. [1960] 1 S.C.R. 39. In
that case, the Court laid down that it was permissible to judge the
reasonableness of a law on the basis of the surrounding circumstances as well
as of contemporaneous legislation enacted as part of a single scheme. But it also
laid down the limitations circumscribing that principle. Subba Rao. J said:
"But I am clear in my mind that the
validity of an Act shall not be made to depend upon another Act unconnected
with the impugned Act or power conferred thereunder, which might, if properly
exercised, off-set the evil tendency or the vice of the impugned Act. If the
validity of an Act is made to depend upon such a foundation, a super- structure
will have been built on shifting sands.
To do that is to destroy the stability of legislation
and to introduce an uncertain element therein. If two or more Acts were parts
of the same scheme of plan, to Implement the same or common objective, or if
the impugned Act, though it was not originally conceived at the time when the
earlier Act was passed, was only as extension or a further step by the
legislature for implementing the object of the earlier Act or if the
legislature by express reference incorporated in the Impugned Act the
provisions of the earlier Act, it would be permissible to rely upon the said
provisions of the earlier Act, not because they formed part of the prevailing
679 conditions but because either the earlier Act, formed part of the impugned
Act by reference or both of them formed part of the same legislative plan ....................
.........................
But to go beyond this is to destroy the
stability of legislation and to introduce an uncertain element. To go further
and to depend upon a notification of a transitory nature issued under an
unconnected Act is to place the statute in a fluid state. In such a situation
its validity would depend upon a statutory order of temporary duration; it
would change colour with the changing attitudes of an authority empowered to
issue the order." These are valuable dicta, valid whenever the
constitutionality of a statute falls to be examined in the context of
contemporaneous legislation. In the present case, however, the Punjab Act was
enacted with an eye to a scheme already existing and in operation. The scheme
supplied the mechanics for the operation of the Punjab Act. The two were not
unconnected. They were closely connected and, indeed, constituted an integrated
plan. The apprehension that the validity of the Act is dependent on the
continued operation of the scheme which was open to subsequent modification at
the will of its authors has no foundation. The consequences of such
modification can be taken care of. The Punjab Act confers on the State
Government, by R.7, power to frame appropriate rules in support of and-for the
furtherance of the object of the Act. In the event of the scheme being altered
or modified by its authors to a degree incompatible with the true operation and
success of the Punjab Act, the situation can always be met by the State
Government framing suitable rules under 8.7 of the Act. The State Government is
not only empowered to do so; it is under an obligation to frame rules
appropriate to the successful implementation of the legislative goal. It seems
to us that in a situation which calls for adjustment from time to time in view
of varying economic and social factors, a sufficient degree of flexibility is
needed, and consequently it was appropriate for the Legislature to leave the
measure of control to the rule asking power of the State Government. That in truth
is one of the primary reasons for delegated legislation. So long as the rules
80 made serve the object of the Act and fall within the limitations implied
thereby no fault can be found with them.
680 In our judgment, the impugned legislation
cannot be regarded as an unreasonable restriction on the fundamental rights of
the petitioner under Article 21 read with sub.cl.(g) of clause 1 of Article 19
of the Constitution.
An attempt was made by learned counsel for
the petitioners to show that 8.3 of the Punjab Act created an invidious
distinction between rickshaw pullers and those who carried on the occupation of
plying other vehicle, such as taxi-cabs, on hire. We see / comparison. The
pathetic conditions in which rickshaw pullers pursue their burdensome vocation
places them in a class apart from others in their right to ameliorative and
protective treatment from the State. This challenge must also fail.
Towards the end, we wish to express the view
that the scheme framed by this Court in Azad Rickshaw Pullers Union (supra) is
a good scheme, capable of implementation, and productive of the object for
which it was designed. If it has not been successfully implemented so far, it
is in the main largely on account of circumstances which could have been avoided.
Inherently, we see no feature in the scheme which operates against its
effectiveness. If the scheme has not succeeded as was intended By the Court, it
is largely because appropriate action was not taken by the parties concerned to
implement it. A large number of applications were made through the Azad
Rickshaw Pullers Union to the Municipal Corporation for the grant of
certificates enabling the rickshaw pullers to obtain loans from the Banks. The
Municipal Corporation was anxious to ensure that fraud was not practised on the
scheme by existing- rickshaw owners who could be tempted to apply for
certificates in fictitious names and secure benefits which should have been
confined to rickshaw pullers as owners of the vehicles. The 1170 applications
made through the Azad Rickshaw Pullers Union could not be related immediately
to bona fide individual rickshaw pullers, and in the absence of the further
material sought by the Municipal Corporation from the rickshaw pullers it would
naturally have taken considerable time to take action on those applications. It
seems to US that a fresh opportunity should be provided to rickshaw pullers to
avail of the scheme formulated by this Court. A fundamental condition for
benefiting from the scheme is that a rickshaw puller should have been a
licensee in the Amritsar or other municipality within one year of the coming
into force of the Punjab Act. We think that the range of eligibility should / t
be confined by that limitation. We think it desirable that the Municipal
Corporation should determine the maximum number of licenses which should be
granted 681 for plying cycle rickshaws within its jurisdictional limits,
keeping in mind the needs of the travelling public on the one hand and the
danger of uneconomic plying on the other.
Every rickshaw puller proposing to take
advantage of the scheme should apply to the Municipal Commissioner for a
certificate, the period within which such applications may be filed being
notified by the Municipal Corporation from time to time as the need arises. All
the application will be considered, in the serial order in which they are
received, for the grant of a certificate on the basis of which rickshaw puller
may take further steps envisaged in the scheme for the grant of financial
assistance enabling him to purchase 8 cycle rickshaw for plying by him. The
ISSUE of such certificate shall be subject to the following conditions:
1. Each certificate shall be granted in
respect of one cycle rickshaw only.
2. The number of certificates issued shall
not exceed the maximum, if any, fixed by the Municipal Corporation as the total
strength of the cycle rickshaws allowed to ply within its jurisdictional
limits.
3. No person shall be granted more than one
such certificate.
4. Preference shall be given in the matter of
granting certificates to those rickshaw pullers who have plied a cycle rickshaw
for one year before the Punjab Act came into force.
On receipt of the certificates, the rickshaw
pullers may take further steps for the purpose of securing financial ASSISTANCE
in accordance with the terms of the scheme.
We are unable to hold that the Punjab Act of
1976 is ultra vires and that the scheme propounded by this 'Court in Azad
Rickshaw Pullers Union (supra) is unworkable and ineffective. We believe that
given appropriate compliance the scheme will provide adequate relief to the
rickshaw pullers and constitute an effective supplementary code fulfilling the
object of the Punjab Act.
In the CIRCUMSTANCES, we dismiss these writ
petitions, but without any order as to costs.
N.V.K. Petitions dismissed.
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