Desai, J. - (1.) Petitioners in this group of petitions under Article 32 of the Constitution claimed to be carrying on the business as railway travel agents. One of the petitions in this group is filed by an association styled as Travellers Service Agents Association (Regd.). The members of the Association also claimed to carry on business as railway travel agents. Petitioners and the members of the Association claim to be engaged in the business of travel agents over a decade and a half and according to them they are rendering useful service to the travelling public in booking seats and berths in various passenger trains. According to them they ordinarily cater to the needs of middle-class and lower-middle class passengers - the common man-travelling by second class in the railways who cannot afford to wait for long hours standing in queues at railway stations and yet cannot afford to avail of the services of the railway tourist agents who generally cater to the needs of the wealthy elite of the society. Petitioners complain that the railway administration encourage wealthy and influential railway tourist agents by sacrificing the interest of the railway travel agents like the petitioners and that thereby the railway administration is depriving the large lower middle class travellers from availing of the services of the petitioners which is available at a cheap price of roughly Rs. 8/- per ticket. According to the petitioners, the business carried on by them is a lawful one but since the introduction of Section 114-A in the Indian Railways Act, 1890 ('Act' for short) they are being harassed, tortured and mulcted by the railway administration. They aver that unreasonable restrictions are placed on their right to carry on their lawful business guaranteed by Article 19 (1) (g) of the Constitution by the rules framed by the Central Government under Section 47 of the Act styled as Railways Tourist Agent Rules, 1980 ('Rules' for short) which are ultra vires the Act as also ultra vires Article 19 (1) (g) and they are hounded out of their lawful business. Petitioners accordingly contend that not only the Rules but also Section 114-A which came into force on May 11, 1982 by which in the absence of recognition, if the petitioners carry on their business they are liable to be prosecuted and sentenced to suffer imprisonment are ultra vires Article 19 (1) (g) of the Constitution.
(2.) A comprehensive counter-affidavit was filed both in Writ Petition No. 3762/82 and Writ Petitions Nos. 8200-8201/83 by one Vijay Kumar, Joint Director, Traffic Commercial (G) I in the Ministry of Railways. Broadly stated, the respondents contend that even before the insertion of Section 114-A by the Indian Railways (Amendment) Act, 1982. Sections 70 and 114 of the Act prohibited transfer of a ticket or travel on a transferred ticket as also sale of a ticket or purchase thereof from anyone other than a railway servant or agent authorised by the railway administration in this behalf. Referring to the clandestine business carried on by the petitioners, it is stated in the counter-affidavit as under: "It is submitted that unauthorised persons like the petitioners were, however, taking advantage of (i) the absence of any specific provision in the law prohibiting the carrying on of business in purchase and supply of rail tickets and (ii) of the fact that law does not require the intending passenger to personally or physically present himself at the booking counter for purchase of ticket for his journey, were and are purchasing tickets generally in fictitious names and thereby cornering reserved accommodation and compelling genuine passengers to turn to them for purchase of reserved tickets (booked in fictitious names) at heavy premia. These unauthorised persons thus make huge profits but the passengers who were found travelling on transferred tickets had to pay heavy penalties and undergo prosecutions. The unauthorised agents from whom these tickets were purchased invariably remained untraced. It is to deal with this situation that the impugned law (S. 114-A) was considered necessary." A further contention was raised that if the petitioners want to carry on their business as travel agents they must comply with the Rules framed by the Central Government under Section 47 of the Act and on being recognised under the Rules they would be entitled to carry on their business and therefore, it is idle to contend that an embargo has been placed on the business carried on by the petitioners. It was contended that it had become, necessary to save the travelling public from the unlawful activities of persons carrying on business as railway travel agents and that regulatory rules have to be framed and it cannot be said that these rules impose any unreasonable restriction on the petitioners' right to carry on their business. Qua Section 114-A, it was stated that on receipt of persistent complaints from the public regarding black marketing in reservations by unauthorised travel agents and other persons, it was decided to provide a suitable check on their activities. A penal provision was enacted providing that the carrying on business of procuring and supplying tickets or reserved accommodation for journey by train unless so authorised by railway administration would constitute an offence and the same would be punishable. That is the genesis of the introduction of Section 114-A in the Act.
(3.) Mr. Shanker Ghosh, who led on behalf of the petitioners followed by Mr. Govindan Nayar could not seriously contend that either the Rules or S. 114-A were ultra vires the Act or the, Constitution. The Rules were framed in exercise of the power conferred on the Central Government by Section 47 which provides that the Central Government shall make general rules consistent with the Act for the purposes set out in various clauses, the last clause being 'generally, for regulating the travelling upon, and the use, working and management of, the railway.' Section 66 of the Act provides that every person desirous of travelling on a railway, shall, upon payment of his fare, be supplied with a ticket by a railway servant or an agent authorised by the railway administration in this behalf, specifying the class of carriage for which, and the place from and the place to which, the fare has been paid, and the amount of the fare. Travelling without a proper ticket is an offence punishable under Section 113 of the Act. The railway administration is therefore under an obligation to make arrangement for sale of tickets and Section 66 enables it either to make arrangement to sell tickets on its own or through or by an agent authorised by the railway administration in this behalf. If Section 66 enables the railway administration to appoint authorised agent for sale of tickets obviously it was necessary for the Central Government to prescribe by rules the conditions of eligibility lay down criteria and guidelines for appointment of authorised railway agents, enjoying power to sell tickets which the railway administration would be bound to Honour. With this end in view, the Central Government framed the Rules.;