Vaghari Karsan Bijal vs State of Gujarat and Another

P.R. Gokulakrishnan, C.J.—This Special Civil Application is for quashing the rules made u/s 33(1)(aa) of the Bombay Police Act, declaring the same as arbitrary and violative of Article 19 and discriminatory in character. The petitioner is aggrieved in respect of the rates fixed for carrying the doli in Palitana mountain. This fixing of the rate, according to the petitioner, is an unreasonable restriction on the occupation carried on by the petitioner and the rules made regulating this doli service is arbitrary and it has been made without and guidance or restriction reasonable for the purpose of making the petitioner and the people akin to him to carry on the business. The first contention of the learned Counsel appearing for the petitioner is that the State Legislature has no competence to enact such rules. Section 33 of the Bombay Police Act reads as follows:

33(1) The Commissioner, with respect to all or any of the following matters specified in this sub-section and the District Magistrate," with respect to all or any of the said matters except the matters referred to in Sub-section (1AA), may make, after or rescind rules or orders not inconsistent with this Act, in areas under their respective charges or any part thereof, namely:

(a) licensing and controlling persons offering themselves for employment at quays, wharves and landing places, and outside Railway Stations, for the carriage of passengers'' baggages, and fixing and providing for the enforcement of a scale of charges for the labour of such person so employed,

(aa) licensing and controlling persons offering themselves for employment at hills, mountains or such other places for carrying pilgrims, tourists or other passengers and their baggages, or goods on such hills, mountains or places, and fixing and providing for the enforcement of a scale of charges for the labour of such persons so employed;

XXX XXX XXX

The learned Counsel states that in the Seventh Schedule of the Constitution in List II, which deals with State List, Entry 7 deals with:

Pilgrimages, other than pilgrimages to places outside India.

Section 33(1)(a), no doubt, states ''carrying pilgrims'', but it also states ''carrying tourists or other passengers and their baggages or goods''. Hence, except for the pilgrims, the rules cannot cover other tourists or passengers. If that be so, the rules are beyond the Legislative competence of the State Legislature inasmuch as Section 33(1)(aa) cannot give power to frame rules in respect of tourists or other passengers, who are to be carried in doli in Palitana mountain. This argument of the learned Counsel cannot be sustained. There is a clear power under the State List to legislate regarding Police (including railway and village police) subject to the provisions of Entry 2A of List I. This is Entry 2 of List II of the State List. In the Concurrent List, it is clear from Entry 24 that the State Legislature can legislate regarding:

Welfare of labour including conditions of work, provident funds, employers'' liability, workmen''s compensation, invalidity and old age pension and maternity benefits.

Reading both these entries together, there would not be any difficulty in coming to the conclusion that the State Legislature has full power to regulate, in the welfare of labour, the transport of doli in Palitana mountain.

It is next contended that such rules framed have not been approved by the State Government. For this purpose, the learned Counsel reads. Section 33(2) which reads:

33(2)(i) The power of making, altering or rescinding rules under Clauses (a), (aa)(b) and (c) of Sub-section (1) shall be subject to the control of the State Government,

(ii) the power of making, altering or rescinding rules under the remaining clauses of Sub-section (1) shall be subject to the previous sanction of that Government.

By reading Section 33(2)(i), it is clear that framing of such rules is subject to the control of the State Government. Nowhere it is stated that prior approval of the State Government has to be taken before such rules are framed by the District Magistrate. The provision referred above gives ample power to the State Government to rescind or alter any such rules. Except to this extent, there is no prohibition on the part of the District Magistrate to frame rules, even without obtaining prior approval of the State Government. Hence, we do not think that there is any merit in this contention raised by the learned Counsel.

The learned Counsel next contended that the rules framed are not in conformity with Section 33(6) of the Bombay Police Act, 1951. Section 33(6) of the Bombay Police Act reads as follows:

33(6) The power of making, altering or rescinding rules under this section shall be subject to the condition of the rules being made, altered or rescinded after previous publication, and every rule made or alteration or rescission of a rule made under this Section shall be published in the Official Gazette and in the locality affected thereby by affixing copies thereof in conspicuous places near to the building, structure, work or place, as the case may be, to which the same specially relates or by proclaiming the same by the beating of drum or by advertising the same in such local news papers in English or in the local language, as the authority making, altering or rescinding the rule may deem fit or by any two or more of these means or by any other means it may think suitable:

Provided that any such rules may be made, altered or rescinded without previous publication if the Commissioner, the District Magistrate, or as the case may be, the District Superintendent, as the case may be, is satisfied that circumstances exist which renders it necessary that such rules or alterations therein or rescission thereof should be brought into force at once.

It is clear from the records that the rules have been officially gazetted. In the Notification dated 12-2-1987, it has been stated that rules have been framed as required under Sub-section (6) of Section 33. We also find from the records that the petitioner concerned had notice before such rules were framed. As a matter of fact, the petitioner has also filed objections to the proposed rules. From all these facts, we do not find any merits in this contention also. The learned Counsel, reading the provisions of the Constitution of India, such as Article 21 said that the fixing of the rate affects the livelihood of the petitioner concerned. Reading the rates fixed, we do not find any ground made out to spell out that it affects the livelihood of the petitioner herein.

The learned Counsel next contended that as per Section 33(1)(aa), the rule can be made only in respect of movement, of the doli at the top of the hill. According to the Dictionary, hill means high land, and hence, the learned Counsel submitted that such rules can be framed for the movement of the dolis at the top of the hill alone. According to the learned Counsel, hence the rules made with regard to the doli that is being carried from the foot of the hill to the top of the hill cannot be within the competence of the rule making authority. Section 33(1)(aa), as we have extracted above, simply states ''at hills''. This does not mean that it refers only to the top of the hill. It may be at the foot of the hill or at the top of the hill Hence, the rules made for regulating the dolis, which are being carried from the foot of the hill to the top of the hill, cannot, in our opinion, go beyond the powers of Section 33(1)(aa). Hence, this contention of the learned Counsel also has no substance.

Then, the learned Counsel read the rules framed by the District Magistrate, who is the top revenue authority of the District concerned. The rule making power is vested with such an authority. Rule 7 reads as follows:

Applicant who applies for licence or renewal of licence must have good character.

Rule 8 reads as follows:

8 The licence holder who is given licence under these rules shall observe good character and conduct: otherwise the licensing authority can suspend or cancel licence and his decision shall be final.

Rule 12 reads as follows:

Every doliwala must have his own doli or he must have share in doli with other licensed doliwala. The person whose name is not entered in licence shall not carry doli.

(B) Doliwalas shall keep their doli in good and secure condition. The doli which is not repaired to satisfaction of District Magistrate or person authorised by him the licence of that doliwala shall be considered to have been suspended.

After reading these rules, the learned Counsel submits that there is absolutely no provision for appeal against the decision made by the authority concerned. Inasmuch as the power is vested with the highest authority of the District, we do not find any infirmity in such rules. Further, we can read into these rules, that the authority, before cancelling, unless it is absolutely urgent, will give a minimal opportunity to the party concerned to satisfy the principles of natural justice. Under Rule 17, the learned Counsel submits that the District Magistrate can authorise any Officer to cancel the licence in the interest of the travelling public. This, according to the learned Counsel, gives naked and arbitrary power in the hands of the authority to cancel the licence, even without any reason. Even in this Rule 17, we can spell out that there is an in built obligation with the authority concerned to give minimal opportunity, unless it is urgent, for the aggrieved party in order to satisfy the principles of natural justice. Thus, we find that there is absolutely no infirmity or violation of the principles of natural justice which will warrant striking down of these rules. The learned Counsel further pointed out Rule 14 and stated that the Committee to decide the dispute regarding the matters mentioned in this rule is not workable and this type of rules clearly offends the fundamental rights guaranteed under the Constitution. Rule 14 deals with the dispute between tourist and doliwala. Such disputes are referred to the Committee, wherein there is a representative of the doliwala also. The District Magistrate who is the highest authority of the District concerned, has always in his record the particulars of the licence of the doliwalas and their bio-data. There would not be any difficulty to nominate one as a representative in this Committee. Other members can be easily nominated for the purpose of deciding such type of disputes and we do not find any infirmity in such type of rules.

Finally, the learned Counsel pointed out Rule 13, which reads as follows:

The rates of carrying pilgrims, travellers foreigners or tourist or lifting their luggage on Palitana mountain shall be as follows or as may be amended from time to time:

From Ashad Vadi 1 to Kartak Sudi 10 Rates of off-season Upto 50 kilos - 38.75 Above 50 kilos - 56.25 The rates shall be double for carrying on chair shouldered by four persons. From Kartak Sudi 11 to Ashad Sudi 15 Upto 50 kilos - 62.50 but upto 55 kilos - 69.50 Above 55 kilos but upto 60 killos - 77.50 Above 60 kilos but upto 70 kilos - 87.50 Above 70 kilos - 93.75

If carried in chair drawn by four persons rates will be double.

If from Palitana goes upto mountain and gets down from Gheti rate shall be 11/2 times and if from comes back on mountain and gets down rates shall be double.

Pilgrims or travellers shall carry small luggage in doli but its weight shall be counted.

(II more than one person shall not be carried in doli at a time but any child upto age of 5 years can be carried with adult but the weight of child shall be counted as per Rule A).

According to the learned Counsel, the rate fixed affects the rights of the party concerned in carrying on their occupation. The learned Counsel further states that the different rates fixed for the season and off-season are discriminatory in character. Reading the rule as it is and the rates mentioned therein, we do not see any arbitrariness in fixing such a rate and it cannot be said that there is anything as coming in the way of the dignity of the labour by adhering to such type of rates fixed in the rules. As far as the fixing of these rates is concerned, proposed rules were published and suggestions and objections were called for. Only after getting such objections and suggestions, the rates were fixed. This we see in Annexure marked ''A'' to the Special Civil Application. Thus, we do not find any arbitrariness or violation of any of the provisions of the Constitution in fixing such a rate for doliwalas. Considering all these aspects of the case, we do not find any merits in this Special Civil Application, and accordingly the same is dismissed.