Patna High Court
Nanhu Lal Vithul And Ors. vs Gaya Lodging House Committee And Ors. on 17 October, 1963
Equivalent citations: AIR1964PAT98, AIR 1964 PATNA 98
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT Untwalia, J.
1. These two miscellaneous judicial cases under Article 226 of the Constitution of India arising out of the same alleged violation of the petitioners' fundamental right under Article 19 have been heard together and this judgment will govern both of them.
2. M. J. C. 718 of 1960 was filed on the 1st of September 1960, impleading Gaya Lodging House Committee through its President, the District Magistrate of Gaya, as respondent No. 1, and the various other persons constituting that Committee as other respondents. The petitioners claim-to carry on their ancestral profession of pandas in the town of Gaya and also claim to own lodging houses duly licensed under the Bihar and Orissa Places of Pilgrimage Act (Bihar and Orissa Act 2 of 1920).
Every year in the month of Aswin during the pitripaksha a mela is held at Gaya where Hindu pilgrims come for offering oblations (pindas) to the departed souls of their ancestors, avail of the guidance and other services of the local pandas and pay for the services rendered by them. The petitioners' case further is that the pandas along with their family members and servants have to go to the railway platform to contact the pilgrims in order to make their services available to them and to earn their livelihood. There is a Committee known as Lodging House Committee appointed by the State Government under Section 20(2) of the Bihar and Orissa Act 2 of 1920 for the limited purpose of administering 'Lodging House Fund' in accordance with the provisions of the said Act. The District Magistrate of Gaya is the ex-officio President of this Committee.
The said Committee framed rules for issue of identity cards to the Gayawal Pandas which haw been made applicable to the petitioners also, pro-viding, amongst other things, that daring the pitripaksha mela only the head Gayawal panda will be allowed on railway platform for receiving his pilgrims: other card holders during this mela shall stay outside the railway platform to attend to their pilgrims. A copy of the rules is annexure A to this writ application. The petitioners attack these rules as being unconstitutional as they violate their fundamental rights guaranteed under Article 19(1)(d) and (g) of the Constitution of India. The rules have also been attacked as having been framed not by the whole Committee but by 3 members only and without any authority of law.
3. The Secretary of the Gaya Lodging Houso Committee reconstituted under Notification. No. IV/L201/1958/3965/H9 dated 5-2-58 has filed a counter-affidavit on behalf of the respondents, whrein he has stated that competition has become keener and disputes more frequent between the pandas, their servants and their agents. Many a time touts employed by different Gayawals mislead pilgrims resulting in disputes between touts and agents employed by them. Sometimes rival agents physically drag pilgrims to their principals. With a view to eliminate this undesirable form of competition resulting in riots and affray and harassment of pilgrims inside the railway station premises, it was found imperative to introduce some measure of regulation.
He further states in the counter-affidavit that the power to introduce regulations in the matter of admitting persons to station premises has always remained vested in the railway authorities, at whose request and with a view to assist them to know the identity of individuals as to whether they are the head pandas or members of the family of the pandas or their servants and agents the impugned rules have been framed, which "rules are merely enabling and do not compel any individual by virtue of these rules to obtain an identity said issued under those rules". The rules do not bind the railway authorities either to admit or not to admit persons of any description either holding identity cards issued under the said rules or persons who may not hold such identity card. The matter of admission to the railway premises "is entirely within the power of the railway authorities".
The specific impugned provision of the rule that during the pitripaksha mela only the head Gayawal panda shall be allowed on Gaya railway platform for receiving his pilgrims and other cardholders shall stay outside, constitute merely an expression of the opinion of the Committee and has no binding or legal force of any kind on the railway authorities. There is no fundamental right of individual to be admitted to the railway platform or the railway premises for the purposes of receiving or pursuading or coercing pilgrims to accept any panda with the object of rendering services during the mela and the power to restrict or regulate the entry to the railway platform vests In the railway authorities, and there is no question of violation of any fundamental right of the petitioners.
In paragraph 15 of this counter-affidavit, it has been further stated :
"The records disclose that for a long time in the past the entrance to the Railway platform have been suspended during the Mela by the Railway authorities. The suspension of such entry in the year is evident from the directions issued by the Divisional Superintendent, Eastern Railways, from time to time in the minutes of meetings held in the office of the Station Master, Copies of the relevant portions of minutes are filed herewith as Anuexures-I and L(a) for 1950 and 1960, respectively. It may be noted that not only platform tickets but also monthly tickets and tickets for short journey are prohibited during the Mela period."
It has further been asserted in the counter-affidavit that identity cards have been issued to Gayawal pandas since 1941, if not earlier, and the entrance to the platform is prohibited by the railway authorities for the purpose of convenience and) safety of the visiting pilgrims and avoiding; undesirable and wrong persons from coming in their Contact for criminal purposes. During the mela quite a number of undesirable persons are active at the railway platform. The railway authorities desire the entry to the platform of only such persons who have a permit from the District Magistrate or his subordinate, the Mela Officer, and the rules framed by them purport to achieve this object. It is claimed on behalf of the respondents that the Lodging House Committee by its resolution No. 9 dated 20-1-60 constituted a sub-committee to frame rules for the issue of identity cards, and the rules framed by the sub-committee were adopted by the Lodging House Committee at a meeting held on 20-7-60.
4. In view of the stand taken on behalf of the respondents in M.J.C. 718 of 1960 in the counter-affidavit filed on their behalf, the petitioners, it seems, realised their difficulty in succeeding to get a writ to quash the rules framed by the Lodging House Committee, as, admittedly, they have not got the statutory force or the force of law. They, therefore, filed M.J.C. 412 of 1961 on the 9th of May, 1961, 'impleading the Divisional Superintendent of Eastern Railway, Dinapore Division, the Station Master, Gaya Railway Station, and the Gaya Lodging House Committee as the only respondents being respondents 1 to 3 in this case. After reiterating some preliminary facts in their petition and quoting from the counter-affidavit filed on behalf of the Lodging House Committee in the other case in regard to their main stand, the petitioners by this writ application challenge the directions and orders of the railway authorities restricting the admission of the pandas to the railway platform as being violative of their fundamental rights under Article 19(1)(d) and (g) of the Constitution of India. The said rules or the orders of the railway authorities have also been challenged on the ground of being without any authority of law.
5. A counter-affidavit has been filed in this case also on behalf of the Gaya Lodging House Committee, respondent No. 3, on the lines similar to those in the other case. On behalf of respondents r and 2 the railway authorities, a counter-affidavit sworn by the Station Master of Gaya Railway Station has been filed. It is asserted on their behalf that the Gaya railway platform is the property of the Eastern Railway owned by the Union of India and it is not at all necessary for tie petitioners, their panda family members and their servants, to go or to enter into the platform to contact the pilgrims for the purpose of making their services available to them and to earn their livelihood. No service is required to be done by the petitioners or their agents to be rendered to the pilgrims inside the platform as sufficient arrangement is made by the railway authorities for the comfortable and convenient entraining and detraining from the railway compartment through licensed coolies.
The petitioners for earning their livelihood can very well contact the pilgrims when they come out of the railway platform. Similar reasons of disputes between the pandas, their touts and their agents and their misbehaviour with the pilgrims, as given in the counter-affidavit filed on behalf of the lodging House Committee have been reiterated as a cause which led the railway authorities not to permit entry to the platform of the pandas during the pitripaksha mela.
6. The impugned rules (annexure A to the writ application in M. J. C. 718/60), as conceded by both the parties, have not got the statutory force or the force of law. It is open to the parties concerned to obtain the identity cards in accordance with those rules or not to obtain them. The said rules are not meant to nor do they obstruct the petitioners or, as a matter of that, any person carrying the profession of a panda in the town of Gaya from carrying on their profession nor do they restrict their movement in the sense of violating any of their fundamental rights under Article 19 (1) of the Constitution of India.
The main rule in connection with the issue of identity cards are the following :-
3. The identity Card shall be issued by the Lodging House Committee to the following persons : -
(1) every Head Gayawal Panda;
(2) every adult male member of the family of "a Head Gayawal Panda, which shall include son, brother, nephew, son-in-law, brother-in-law and his or her nearest relation; (3) any two servants under the employment of a Head Gayawal Panda and authorised by him or her.
Provided (a) that Head Gayawal Panda shall be entitled to only one Identity Card for self, irrespective of 'Gaddies' or 'estates' claimed by him or her;
(b) that no Identity Card shall be issued to a servant of a Gayawal Panda unless the servant is of good character and has no previous conviction for bad character or moral turpitude to his credit. This certificate shall be given by the Head Gayawal Panda on the application form (?) for issue of Identity Cards.
4. The Identity Card for the Head Gayawal Panda, shall be of green colour (six 6" x 4") with the seal of the Lodging House Committee and shall bear the signature of the President. Lodging House Committee, Gaya. The Identity Card shall contain the Pandas full name with his or her different titles according to his or her possession of different 'Gaddies' or 'estates', his or her father's name and full address. A passport size photograph of the panda shall also be pasted on it.
5. The Identity Card issued to the adult male members and servants of the Head Gayawal Panda shall be of the same size and bear similar descriptions in respect of the individual as mentioned under Rule 4 and shall respectively be of chocolate and blue colours. In case of adult male member, the Identity Card shall also contain his relationship with the Head Gayawal Panda and in case of the servant the name of his master Gayawal Panda. Each Identity Card shall have a passport size photograph of the person to whom the card is to be issued."
Rule 23, which is the main rule being impugned in this writ application, reads thus -
"During the Pitripaksha mela only the Head Gayawal Panda shall be allowed on the railway platform for receiving his pilgrims, other card holder during this mela shall stay outside the Railway platform to attend to their pilgrims."
Rules 24 and 25 deal with the conditions on and the manner in which badges would be issued. In my opinion, the rules are for the benefit of the public at large and, even though they have not got the statutory force, should be followed by the per sons concerned and they cannot be dubbed as un reasonable or violative of any fundamental right of the petitioners.
7. The main grievance of the petitioners, however, is against the rules or the orders of the railway authorities in not permitting the entry inside the platform of pandas, their family members, touts or servants during the period of pritipaksha mela. The said rules or orders are annexures A and B to the writ application in M. J. C. 412 of 1961.
Annexure A is a rule or an order framed or passed -- by whom it is not stated by the petitioners -- in the year 1950 for the purpose of regulating the entry on the station platform during the period of a6th of September to 11th of October, 1950, i. e., the period of pitripaksha mela in that year. It runs as follows :-
"(i) 6d. Sale of Platform tickets will be stopped from 26th September to nth October, 1950. Admission to the Platform during this period should be under permit issued by the Mela Officer, (e) Pandas and their agents must on no account be allowed to enter platform. They may, however, he permitted to meet pilgrims outside the exit gate provided they have got Identity certificate signed by the Mela Officer (Civil). The Mela Officer (Civil and Railways) and the Inspector present will form a Committee and deal with any trouble, that may arise with the Pandas."
Similarly annexure B contains the rule or order framed or made in the year 1960 and it reads as follows: -
"3b, In order to avoid infiltration of Pandas or their agents and other undesirable elements, entrance to the Platform during the Mela period will be controlled. Platform tickets will be given only to those who hold permits issued by the Civil Authorities. The question of admitting a limited number of Pandas on the Station Platform was left for further deliberation at a proper level.
c. To guard against misuse, by the Pandas and their agents fresh monthly (?) will not be issued for September, 1960, on the following section.
Anugrah Narain Road to Gaya Inclusive.
Poonpoon to Gaya inclusive.
Nawadah to Gaya inclusive.
Old monthly tickets may, however, be renewed."
8. The petitioners claim that they have got a fundamental right to move freely throughout the territory of India and so on the railway platform after obtaining platform tickets. By interfering with such right, according to them, the railway authorities are violating their fundamental right under Clause (dj of Article 19 (i). They further claim that they have, under Clause (g) of the said Article, a fundamental right to practise any profession and the railway authorities by not allowing them entry inside the railway platform during the period of the pitripaksha mela are not allowing them to practise their profession inside the railway platform. Thus they interfere with, or violate, their fundamental rights aforesaid.
The argument on the face of It is so unreasonable and untenable that I have no hesitation in rejecting it as being without any substance. There cannot be any doubt that the railway platform, though a public place, is not a public property. It is the property of the railway and consequently of the Unipn of India owning it. In Dubar Goala v. Union of India, AIR 1952 Cal 496, Bose, J., (as he then was), has observed:-
"There can be no doubt that, the Railway authorities have the power to regulate the use of the station,"
He has quoted with approval the following passage from the judgment of Lord Halsbury in the case of Perth General Station Committee v. Ross, (1897) AC 479 at p. 4^3 -
"But I am of opinion that the station is absolutely the property of the Railway Company, and that the rights of the Railway Company are just as absolute in the first instance as those of any other proprietor. That by appeal to the proper tribunal they may be compelled to permit passengers and traffic under a variety of conditions under appropriate orders of Court is true; but that against their will any member of the public has a right to force himself upon the platform or into the booking office I cannot agree. The public has right to go and has a right to enter into a contract with them; and the Railway Company may be compelled if they refuse either by action at the suit of the complaining party or by an application to the Railway Commissioners. But I should be sorry to throw any doubt on the absolute right of the Railway Company in the first instance to regulate their own traffic in their own way and to refuse access to their station in the circumstances stated in this case."
Another passage quoted from the judgment of Harries, C. J. and Banerjee, J., from the case of Rani Bala Sett v. E. I. Rly., 55 Cal WN 522 at p. 527 : (AIR 1951 Cal 501 at p. 503) runs thus -
"The Railway Station just as a dock or Harbour is private property and members of the general public have no right to use that property. They use it by permission ...... A member of the public has no right to use a Railway Platform for an evening walk. It is private property just as a Harbour is a private property. But it is a private property which members of the public in large numbers use. But it is user connected with travel-
- "ling or business with the railway and not user as of right."
I am in respecful agreement with the views of law expressed above.
9. Under Section 47 of the Railways Act (Act IX of 1890) -
"Every railway company and in the case of a railway administered by the Government, an officer to be appointed by the general controlling authority in this behalf"
has power to make general rules for the following purposes namely, "* * *
(g) generally, for regulating the travelling upon, and the use, working and management of, the railway."
Our attention was drawn by Mr. P. K. Bose, learned advocate for respondents I and 2, to the Coaching Tariff containing such rules. Rule 127 provides -
"1. Platform tickets. -- As a rule, passengers only are admitted to a station platforms but Station Masters have discretion to admit a limited number of persons who are not passengers. At certain stations, notified by the Railway Administration concerned, platform tickets are issued on payment of the prescribed charge and these may be had on application to the Booking Clerk. The issue of these tickets is, however, limited according to the capacity of the platform accommodation."
Rule 128 (i) says -
"A Railway Administration may exclude and,, if necessary, remove from the station platform or any part of the railway premises, any person not being a bona fide passenger nor having business connected with the railway and any person who, having arrived at a station by train and having no business connected with the railway, refuses to leave the railway premises when required to do so."
The Railway Authorities, therefore, have got the right to restrict the issue of platform tickets and regulate entry to the station platform.
10. Reliance was placed on behalf of the petitioners on the case of Langrish v. Archer, (1882) 10 QBD 44 wherein it was held that a railway carriage while travelling on its journey is within the definition of 'an open and public place to which the public have or are permitted to have access' in this Section (sic). It was so held with reference to the provisions of the Vagrant Act Amendment Act, 1873, Section 3 of which "imposes a penalty upon 'every person playing or betting by way of wagering or gaming in any street, road, highway, or other open and public place, or in any open place to which the public have or are permitted to have access at or with any coin, card, etc., used as an instrument or means of such wagering or gaming, at any time or pretended game of chance'."
Lord Coleridge, C. J., rejecting the argument put forward on behalf of the accused that the public have not access to the railway carriage, for they are only admitted upon certain terms, that is upon payment of certain fares, observed -
"But the company cannot exclude any person from the carriage while there is room and he is ready to pay his fare. When this condition is complied with the public have access to the carriage in the same way as they have to a highway, and the section nowhere says that 'access' is to mean access without the obligation of paying anything for it."
On the basis of the said observation, it was submitted by the learned advocate for the petitioners that on their purchase of the platform tickets they have got a right to have access to the platform and the railway authorities cannot deny the petitioners their right to have access to the platform by denying them an opportunity of purchasing the platform tickets. I am unable to accept this argument as sound. As I have said above, the railway platform may be a public place to which the public will have access by purchase of tickets, but that does not mean that the railway authorities on behalf of the railway administration have no right to regulate entry to the railway platform by restricting for certain purposes the sale of the platform tickets. I have no doubt in my mind that the rule or the order of the railway authorities that "Platform tickets will be given only to those who hold permits issued by the Civil Authorities" is perfectly valid, having been framed or passed in exercise of their lawful power.
11. Another case on which reliance was placed on behalf of the petitioners is the decision of Tud-ball, J., in Emperor v. Rama, ILR 35 All 136.
The facts of that case, as stated in the judgment, were that some officer or other had published an order forbidding the accused, who were pandas, from going on the railway station at Bindhachal except for bona fide purposes of travelling. The record did not show by whom that order had been issued and whether he had power to issue it. Thera was nothing to show that it was issued to the accused personally; apparently it was generally proclaimed. The accused went on to the platform and importuned certain pilgrims. The magistrate convicted him under Section 188 of the Indian Penal Code. The conviction was set aside by the High Court chiefly on the ground that there was nothing on the record to show that any order was promulgated by a public servant lawfully empowered to promulgate such order. It was observed by the learned Judge -
"Moreover, if the order be, as described in the opening clause of the judgment, forbidding persons to enter railway quarters except for bona fide purposes of travelling, such an order is far from being legal. The public have a right to go to the railway premises for many other purposes than travelling and orders forbidding persons to enter railway premises except for travelling purposes could not legally be issued."
A general order forbidding persons to enter railway quarters except for bona fide purposes of travelling may be open to objection, In the instant case, however, we are not concerned with any general order of the kind made in the Allahabad case. Here, for definite and specific reasons and in the interest of the general public specially the pilgrims visiting Gaya during the period of pitripaksha mela, an order has been made by the railway authorities regulating the entry into the railway plat-from. Such orders they are empowered to pass under the provisions of the Railways Act or the rules made thereunder, which could not be and have not been attacked as being ultra vires and violative of the fundamental right of the petitioners under Article 19 (1). Even if they were challenged, there would be no difficulty in upholding them as reasonable restrictions on the said fundamental right. Assuming that the impugned rule, or the order of the railway authorities cannot be supported with reference to the rules contained in the Coachiig Tariff framed under Section 47 of the Indian Railways Act, 1890, M. J. C. 412 of 1961 will fail in that event also, as the rule or the order of the railway authorities will not have the statutory force or the force of law.
12. In my opinion, therefore, considered from any point of view, the petitioners are not entitled to any relief in either of the two M. J. C. applications under Article 226 of the Constitution of India and both are dismissed but, in the circumstances, without costs, Ramaswami, C.J.
13. I agree.