(1.) The appellants, who are 117 Rickshaw pullers, have preferred this appeal against the judgment of T.K. Basu, J. dismissing the application of the appellants under Article 226 of the Constitution of India.
(2.) The case of the appellants is that, they have been plying their rickshaws within the limits of the South Dum-Dum Municipality under licences granted to them by the said Municipality under Section 173 of the Bengal Municipal Act, 1932. The appellants claim that by a notification issued by the State Government under Section 2 (b) of the Calcutta Hackney-Carriage Act, 1919, hereinafter referred to as the Act, the area appertaining to the South Dum-Dum Municipality has been included in Calcutta as defined in Section 4 (2) of the Act, that is to say, inter alia, the area described in Schedule I to the Calcutta Municipal Act. The contention of the appellants is that in view of the said notification under Section 2 (b) of the Act, the appellants are entitled to ply their rickshaws in the city of Calcutta inasmuch as their rickshaws shall be deemed to have been registered under the Act. Alternatively, the contention of the appellants is that, they have the right to get their rickshaws registered under the provisions of the Act, It is the case of the appellants that they attempted to get their rickshaws registered under the Act through "Rickshaw Malik Samity", but the Registering auth- ority under the Act refused such registration. The appellants, therefore, filed a writ petition before this Court, inter alia, praying for a writ in the nature of Mandamus commanding the respondents to issue licences to them under the provisions of the Act. They also challenged the constitutional validity of Section 70A which has been incorporated into the Act by the Calcutta Hackney-carriage (Amendment) Act, 1980. Section 70A, inter alia, provides that if any rickshaw, other than a cycle-rickshaw is used as such without having a licence under the Act, the owner of the such-rickshaw shall be liable to a fine not exceeding Rs. 100 and in default of payment of fine, to simple imprisonment for a period not exceeding three months.
(3.) At the hearing of the writ petilion before the learned Judge, the appellants challenged the communication dated June 30, 1981 by the Officer-in-charge, Hackney-carriage Branch, Calcutta, made on behalf of the Registering authority Calcutta informing the Secretary of the Rickshaw Malik Samity, Calcutta and 24-Parganas that no new registration of rickshaws could be considered at present. It does not appear that the appellants had advanced any contention before the learned Judge claiming any right to ply their rickshaws in the city of Calcutta in view of the alleged publication of a notification under Section 2 (b) of the Act, and of the grant of licences to them under the provision of Section 173 of the Calcutta Municipal Act. They, however, challenged the constitutional validity of Section 70A of the Act.