INDER MAL JAIN & ANR. EtC. v. UNION OF INDIA & ORS. ETC.

The Judgment of the Court was delivered by

DESAI, J. Petitio~ers in this group of petitions under Art. 32 .. c 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 member of the Association also claimed to carry on business as railway travel agents. Petitioners and the members of the Association claim to be engagefl in the business of travel agents over a decade· D and a half and according to them they are renaering 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 passanger-the common • man-travellin.g by second class in the railways who cannot afford to wait for long hours standing in queues at raiiway stations and yet cannot afford to avail of the services of the railway touril!'t 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 tr~vel 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 ofr9ughly Rs. 8 per ticket. According to the petitioners, the business carried on by them is a lawful one but since. the introduction of Sec. I 14A in the Indian Railways Act, 1890 ('Act' for short) they are being harrassed, tortured and mulcted by the railway administration. They aver that unreasonable restric· tion are placed on their right to carry on their lawful business guaranteed by Art. 19(1) (g) of the Constitution by the rules framed by the Central Government under Sec. 47 of the Act styled as Railways Tourist Agent Rules, 1980 ('Rules' for short) which are ultra-vires the Act as also ultra·vites Art. 19(1) (g) and they are hounded out of their lawful business. Petitioners accordingly cqntend that not only the Rules but also Sec. ! 14A which came into

INDER MAL v. UNloN (Desai, J.) 1019

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 Art. 19(1) (g) of the Constitution.

A comprehensive counter-affidavit was filed both in Writ Petition No. f762t82 and Writ Petition Nos; 8200-8201/83 by one B Vijay Kumar, Joint Director, Traffic Commercial (G) I in the Ministry of Railways. Broadly stated, the respondents contend that even before the insertion of Sec. 114A by the lndian Railways (Amendment Act, 1982, Secs. 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 c or agent authorised by the railway administration in this behalf. Referring to the clandestine business earried 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 as the booking counter for purchase of ticket for his journey, were and are purchasing tickets generally in fictitious names and thereby cornering reserved accommo- dation .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 · remainded untraced. It is to deal with this situation that the impuged law (S. 114A) 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 Sec. 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 ari embargo ha• been placed on the business carried on by · the petitioners. It was

1020 SUPREME COURT REPORTS (1984) 1 8.C.R.

contended that it had become necessary to save the travelling public from the unlawful activities of persons carrying on business .as rail- way travel agents and that regulator-y 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 bush1ess. Qua Sec. 11'4A, it was stated that on receipt of persistent complaints from the public regarding blackmarketing in reservations by unauthorised travel agents and other persoo.s . .it was decided to provide a suitable check on their activities. A penal provision was enacted providing that · the carrying on gusiness. of procuring and. supplying tickeis or reserved accommodation for journey by train unless so authorised by railway administration would constitute an offence and the same c would be' punishable. That is the genesis of the introduction of Sec. 114A in the Act.

Mr. Shanker Ghosh, who led on behalf of the petitioners followed by Mr. Govindan Nayar could not seriously contend that either the Rules or Sec. l 14A were ultra vires the Act or the Cons- titution. The Rules were framed in exercise of the power conferred on the <;:entral Governm'!mt by Sec. 47 which provides that the ·Central Governmeni 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.' Sec. 66 of the Act provides that every person desirous.of travelling on a railway, shall, upon payment 6f 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. Travel- ling without a proper ticket is an offence punishable under Sec. 113 of the Act. The railway administration is therefore under an obli· gatian to make arrangement for sale of tickets and Sec. 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. · G If Sec. 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 .administra- H tion would be bound to honour. With this end in view, the Central · Government framed the Ruli:s. ·

.INDER MAL~. UNION (Desai, J.) 1021

The Rules prescrible conditions and criteria for appointment as a railway tourist agent. Briefly stated, they are.: 1) that the intending agent must posses a trade licence from the competent authority to carry on the business of a tourist agent in India; 2) must be financially sound and should possess the latest Income-tax Clearance Certificate (l.T.C.C.) from the Income-tax Authority of India; 3) such an intending agent sh.ould have minimum paid-up capital of not less than rupees one Lakh to t~eat him as financially sound; 4) he should have obtained recognition to act as a travel agent from the Government; 5)·he should have been carrying on the business of a travel agent for a minimum period of one year; 6) he should possess a Money Changer's licence ftom a competent autho- rity to deal with and handle the foreign exchange in India; 7) he c must have an office and th,e• premises properly maintained with adequate conveniences at a central place in the city so as to accom- modate the visit of sufficient number of customers and to provide - them with the reasonable conveniences. The question is whether the criteria or conditions for eligibility for recognition as authorised railway tourist agent prescribed in the Rules are irrelevant or arbitrary. It was contended that the requirements amongst others that such a person must have a minimum paid-up capital of not less than rupees one Lakh, and that he must be carrying on the business as a travel Agent for a minimum period of one year and that he should possess a Money Changer's licence were considered so irrelevant by this Court that while granting interim relief of Oct. 8, 1982, interim injunction was granted restraining the railway admiriistration from enforcing these conditions. The question is. whether any or all of these conditions individually or collectively are so irrelevant to the object sought to be achieved by the Rules or are such as would smack or arbitrariness ? The argument was that these conditions were .so deliberately dra~n up as to help and ~ncourage wealthy commercial heavy-weights to obtain recognition simultaneously denying the same opportunity to · persons like the petitioners who cater to the needs of the common man.

If what has been stated in the counter-affidavit filed on behalf of the railway administration that the petitioners or atleast some of them were guilty of cornering reserved accommodation and thereby compelling genuine passengers to turn to them for purchase of H · res~rved tickets booked in fictitious names at high premia, it w11• absolutely necessary to cheque these illegal activities permitting exploitation of the - harrassed travelling public. If a privilege is

1022 SUPREME COURT REPORTS (1984] I s.c.R.

·granted.to do a certain thing, it would he open to prescribe condi· A lions for enjoying the privilege. The railway administration alone should ordinarily sell itflickets. Sec. 66 enables the administration to appoint authorised agents for sale of tickets. These authorised ·agents must of necessity fulfil certain criteria. The criteria appear· to have been devised with an ·eye on extending facility to foreign B travellers as well as the financial V!ability to secure against failure to pay for tickets sold by recognised agents. With this end in view, the cenditions for minimum financial guarantee and having a Money Changer's licence and other allied conditions were prescribed. The ·' long-term view appears to be that those seeking service of tourist agents, must get a comprehensive service at one place, such as c railway ticket~, foreign exchange conversion, exertise about the • business, easy access and legitimacy in jJusiness and indisputably the conditions extracted above assure the saine. Intendment underlying the scheme of setting up authorised agents is not only to check sharp practices, curb fleecing of gullible passengers, but render efficient service. The Rules ensure fulfilment of the intendment underlying the impU!;ned provisions. Viewed froin this angle, tbe conditions are neither irrelevant nor arbitrary. It may be that the petitioners may not be able to.fulfil the same, but that by itself cannot render ...\ them unreasonable. The conditions are reasonable and are condu- ( cive to the objects sought .to be achieved. Failure or inability of some of the petitione.rs to comply with them would not be sufficient to reject them as unreasonable, arbitrary or irrelevant. ~ ' In this connection, however, Mr. Govindan Nayar relied upon Romana Dayaram Shetty v. The International Airport Authority of ir F India and Ors.( 1) wherein. it is observed that' in a welfare state, the government activities have· expanded so wide that licences are requir· ed before one can engage in many kinds of business or work and the . power to give licence means power to withhold them and this gives L. control to the Government or to the agents of the Government or many people It was further observed that many individuals and many more bussinesses enjoy largest in the form of Government contracts and that the Government cannot give or withhold large;s arbitrary discretion or at its sweet wiJI. Even, in the matter of Governmental largess, it was stated that the Government cannot act arbitrarily.' We fail to see bow this observation. would be of H · any assistance in this case. Similarly, the decision in M /s Kasturi/a/

(I) [197913 SCR 1014.

. . . INDER MAL . . v. UNION (Desai, J.) . . Lakshmi' Reddy and Others v. State of Jammu and Ka~mir and 1023

Another(') would hardly be of any assistance. Sec. 66 enabled the .railways to sell tickets through authorised agents. The . Central Government framed rules. for obtaining recognition as authorised agents and the Rules prescribed relevant conditions for ellicieilt working of a recognised agent. There is no question of distributing Qovernment largess in this case nor any. arbitrariness in Govern- mental action. The challenge to the Rules on the ground of arbitra- riness must fail. · . · . · .. ·~ •

.., -. One more coutention may be noticed. It was urged· that the · conditions of eligibility for obtaining status of authorised. agents· in C · their cumulative effect were impossible of compliance with the· result that under the pretext of regulatory weasures a total embargo is )r placed on the business of the petition~rs and theret"ore also the restrictions are unreasonable. In the counter-affidavit it is .'titated that as many as· seventeen agents have been given the ~atus of ( authorised railway tourist agents in Delhi alone. This in no,t con-. . D ' troverted. Therefore the conditions are capable of being complied with. If the petiti()ners cannot afford to do the saine, fhat would ~ not render conditions unreasonable. Apart from this, we are of the ' .. opinion that conditions can be complied with.

t The next attack was on the validity of Sec. ! 14A of the Act. Sec. 114A merely prescribes punishment for unautborisedly carrying on of business of procuring and supplying railway tickets. If Sec. 66 envisages appointment of authorised agents obviously anything to the <:ontrary would be contravention of Sec. 66 and if it is made punishable under Sec. 114A of the Act, we fail to see how the section .would be ultra vires the Constitution. Therefore·the contention must be negativated.

Both Mr. Shanker Ghosh and Mr. Govindan Nayar strenous!y G contended that even if the Rules and Sec. 114A !Ire not ultra vires the

(I) (1980] 4 SCR !. H

1024 SUPREME COURT _RBPOR\S (19841 I s.c,R. -

Constitution, the provisions of.the Rul~s are. so design.ed as to help big houses to.carry on business as a_uthorised .tourist agent and, they ·.would hardly be_interested in catering to .the needs of common .man belonging to lower _middle-class passengers .forming bulk ..of the. travelling pllblic, travelling by seconcj class and, paradoxically, contri! l;luting major share in railway revenues. They also pointed out that· , :B going to the station half an hour before the departure of .the train, .. · buy_ the ticket.and enter the train, find a seat or standing at:eommo· dation and perform the journey is a chapter in remote past. It was urged with some. vehemence and acerbity but with.· full justification .that railways earn bulk of their revenue from second-class, travelling . · passengers and they are the most neglected and to such needy per•. c son_s, petitioners:were affording some Fespite from standi~g in queues for flours". to be jostled out by the .shutting the ticket window in \beirface. · !t was also ·stated that the Court should be .realistic in • taking note of the prevailing corruption in . booking railway-tickets . · which would be further accentuated if every intending passenger has to stand° in the queue for'hours and return empiy-handed .. By way .. of an additional limb to this submission, it was submitted that if someone from a long distance' wan ts to -come to Delhi :and return· the next d,;'y, h~w is he. going to.· arrange for. his ticket. Coul_d he everJhink of going to Thomas .Cook and agents 'of their ilk a:nd . would • he doI his work for . which•• he . : has come • to Delhi or• stand in a queue .to purchase the return ticket ? We see considerable force in this submissiOn. Ji is a very realistic appraisal of the situation and we '. ·f would not permit ·railway administration, a monopoly,· turning blind eye to· this desperate situation. It is said that· comparatively it is easy to enter heaven than obtain a railway ticket. Add to this malaise the . _r.< _ . misery of the people coming from outside having no relations who ., "" . can afford' to waste their time to get the ticket. Therefore an agency has to be devised to cater to ihe needs of class II passengers, which . can renqer sen.ice in this behalf. The agency has to be subjected . to · strict control and"regulatory measures. May be, that .the petitioners were abusing 'their activities and were guilty of some sharp practices, G It cannot be said that all of them were of the same class, _and it also should n<)t be forgotten that their activities were faciUtated ·by their , counter-parts in the booking-office. we· can safely say that, to some . extent, it.was a joint ventu.re. Therefore merely dismissing these · petitions . ~ould be further adding lo the llliseries ·of the travelling public. We therefore direct 'the Railway Board to prepare a scheme for recognising travel agents catering to the needs of class II passen·

JNDER MAL.'· UNION (Desai; J.) · 102s

.gees with sufficient control over their activitiel and put· the .sal)le before this Court withili three months from today. ·. . A

With these observations, all t~!I writ )llltitiops al'C' dismissed · with no order as to costs.

·H.S.K.