Calcutta High Court (Appellete Side)
Akd vs State Of West Bengal & Ors on 11 September, 2018
Author: Harish Tandon
Bench: Harish Tandon
1
01 11.09.18 W.P. 16169 (W) of 2018
Ct No. 2
Society of Indian Automobile Manufacturers & Anr.
akd
Vs.
State of West Bengal & Ors.
--------
Mr. Abhijit Chatterjee, Mr. Mainak Bose, Mr. Debargha Basu.
... for the petitioners.
Mr. Abhratosh Majumder, Mr. Amal Kumar Sen, Mr. T. M. Siddiqui, Mr. Lal Mohan Basu, Mr. Nilotpal Chatterjee.
... for the State respondents.
The present writ petition is filed by the petitioners, being the Society, registered under the Societies Registration Act, 1960 and the Deputy Executive Director of the said society challenging the Advisory dated 28th June, 2018 issued by the Commissioner, Department of Transport, State of West Bengal, respondent no. 3 herein, relating to indiscriminatory registration of new two wheelers and unauthorized use within the State.
The challenge is basically founded on the premise that the stringent conditions incorporated therein offend the provisions of the Motor Vehicles Act as well as the rules framed thereunder having resultant effect on the overall owners of the two wheelers within the State of West Bengal.
It has been further pleaded in the instant writ petition that such Advisory cannot be said to be in conformity with the provisions of the said Act nor the issuing authority is empowered under the aforesaid provisions of the Rules framed therein restricting the sale of two wheelers to the intending purchasers unless they satisfy the conditions made therein.
Before this Court proceed to consider the case made out in the instant writ petition and the 2 averments made therein, a preliminary objection raised by the State respondents on maintainability of the writ petition is to be determined.
Since the preliminary objection so raised strikes at the root of the maintainability of the instant writ petition, this Court, therefore, feels to deal with the same before proceeding further for the purpose of an interim order.
Mr. Majumder, the learned Additional Advocate General, raises a preliminary objection over the maintainability of the instant writ petition having filed by a Society registered under the Societies Registration Act. In other words, it is argued before this Court that the writ petition under Article 226 of the Constitution of India is not maintainable at the instance of an Association, as the said Association cannot be said to be an aggrieved person. It is further submitted that the manufacturers of two wheelers may have maintained the writ petition as aggrieved person, but not in a collective way more particularly through the Association, as it cannot espouse the individual case of each of the manufacturers through such mechanism.
To buttress the aforesaid submission a reliance is placed upon the Division Bench judgement of this Court in case of Siliguri Inter District Minibus Owners' Association & Ors. vs. Sri Bijon Krishna Bhowmick reported in 1993 (2) CLJ 99.
The aforesaid contention of the learned Additional Advocate General is refuted by Mr. Chatterjee, learned Advocate appearing for the writ petitioners, by contending that neither the Constitution nor the statute applicable in this regard forbids the maintainability of the writ petition by the Association espousing the cause of its members. According to Mr. Chatterjee, the Association, being a juristic person and registered under the Societies 3 Registration Act, is empowered to maintain the writ petition espousing cause of its members in collective manner and, therefore, the writ petition is maintainable and cannot be thrown at the nascent stage of its admission.
It is further submitted that another Division Bench judgement rendered in case of West Bengal Head Masters' Association and another vs. Union of India and others reported in AIR 1983 Calcutta 448 recognized the status and right of the Association to maintain the writ petition challenging the action affecting the rights of the members and, therefore the contention of the petitioner that the writ petition cannot be maintained by the Society is not an indefensible right. It is further submitted that the Division Bench judgement rendered in case of West Bengal Head Masters' Association (supra) was not considered by the later Division Bench judgement in case of Siliguri Inter District Minibus Owners' Association (supra) and, therefore, the later Division Bench judgement has no legal efficacy.
Apart from the same Mr. Chatterjee relies upon the judgement of the Apex Court in case of M.P. Cement Manufacturers' Association vs. State of M.P. & Ors. reported in (2004) 2 SCC 249, wherein an application under Article 32 of the Constitution of India filed by the Association challenging the vires of amendment brought to M.P. Upkar Adhiniyam, 1981 was entertained and held to be maintainable.
The Supreme Court in case of Steel Authority of India Limited vs. Sutni Sangam & Ors. reported in (2009) 16 SCC 01 was confronted with a question of locus standi of the Association to maintain the writ petition under Article 226 of the Constitution of India challenging the steps and the actions taken under the Land Acquisition Act, 1894 and answered by 4 reiterating that the writ petition at the behest of the Association is maintainable, but the individual reference under Section 18 of the said Act is available to the persons, whose lands were acquired under the notification by the State Government.
It is thus submitted that it is not a rigid or uniform rule that the writ petition cannot be maintained by the Association challenging the action of the State or its instrumentality, which has an impact on the rights of its members and, therefore, the contention of the learned Additional Advocate General on the maintainability of the writ petition is not legally sustainable.
So far as the preliminary objection is concerned, the facts if unfurled would reveal that the petitioner no. 1 is a Society registered under the Societies Registration Act, 1860 and constituted for the purpose of protecting the interest and espousing cause of its members, who are manufacturers of the motor vehicles. The said manufactured goods are transported throughout the country and sale is effected through various dealers to the end users.
The Association and each of its members found such Advisory to have impact on transaction of business leading to a sudden drop in the sales figures and also opposed to the Act and the Rules framed by the Central Government.
It is contended by Mr. Majumder that individual manufacturer may maintain the writ petition, being allegedly affected by the said Advisory, but the Association cannot maintain unless the Association suffers any prejudice or its rights are being affected.
It is evident from the pleadings of the writ petition that the Association is basically protecting the rights and interests of each of its members, being the manufacturers of motor vehicles, and the aim and 5 object behind the formation of Association is to protect such interest.
In case of Siliguri Inter District Minibus Owners' Association (supra) the Association was not a party to the writ petition, but felt aggrieved by an order of the Single Bench and filed an appeal along with an application seeking leave to file the same. The grievance so raised by the Association related to an order of injunction passed by the Single Bench having resultant effect on the conversion of temporary permit into permanent permit in contravention to the provisions of the Motor Vehicles Act and the Rules framed thereunder.
A point arose in the said decision whether the stranger can prefer an appeal under certain conditions after obtaining leave of the Appellate Court. The first and foremost question in this regard is whether the person, who seeks leave to file an appeal, being a stranger to the proceeding, is affected by an order under appeal or whether he is bound by the same or such order prejudicially affects his right.
In the backdrop of the aforesaid facts it was held that the Association is not bound by the order of injunction passed by the Single Bench and neither the Motor Vehicles Act nor any right is conferred upon the Association of operators to file an objection by making representation. It was further held in the said decision that while granting leave to file an appeal the first and foremost thing, which the Court should look into, is whether the appellant is a necessary or proper party in the original proceeding or is merely a busy body. It was factually found therein that no case was made out as to how the individual members of the Association were affected by an order of injunction and cannot maintain the appeal in the following words:
"7. No case has also been made as to how the 6 individual members of the association who are the operators are being affected by the order of the learned trial Judge. The learned trial Judge has directed that in view of the judgment of the Supreme Court the operators who are granted successive temporary permits, their permits had to be made permanent. The association is representing the operators who are plying vehicles and unless a case is made out that even when individual operators are seriously affected by any judgment no leave can be granted, in this connection on the question of locus standi of the operators to maintain a writ application reference was made to a decision of the Kerala High Court in the case of (8). The Quilon District Private Bus Operators Association, Kollam-I v. The State Transport Appellate Tribunal, Ernakulam & Ors. reported in AIR 1992 Kerala 267 wherein it has been held by K. Sreedharan, J. that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such constitutional or legal provision and it was further held that the association of private bus operators registered under the Societies Registration Act, 1860, which approaches the High Court not to protect any particular interest of the members of the society but to highlight the illegality committed by the Regional Authority in granting permit to a co-operative society in violation of the statutory prohibition contained in section 71(4) of the Motor Vehicles Act has locus standi to move the High Court challenging the grant of permit. In that case the Kerala High Court has considered a case 7 where the operators were not directly or indirectly affected but the Kerala High Court had not taken into consideration the decision of the Supreme Court in the case of J. M. Desai v. Rosham Kumar (supra) as well as in the case of Nagpur Rice and Flour Mills v. N. T. Gowda (supra) wherein the Supreme Court had clearly laid down the principle that rival in the trade has no locus standi to file a writ application and when association of operators moves a writ application being rival in the trade and for the purpose of eliminating operators from the route of any ground whasoever was hit by the principle laid down by the Supreme Court in the above two cases. Unless the statute expressly confers any right to the competitor, the competitor has no locus standi to complain. Unfortunately under the Motor Vehicles Act and/or any other law such a right had not been conferred on the rival in the trade. The principles of public interest litigation could not be invoked to subserve the private interest of the parties. Accordingly we are unable to follow the principles laid down by the Kerala High Court in this behalf. In the application for leave to appeal or before us no case has been made out that the applicants without being party were either bound by the ofeer or was aggrieved by the said order and/or were prejudicially affected by the said order.
8. In our view, the association of minibus owners cannot be granted leave to prefer an appeal when the association itself is not affected by the order passed by the learned trial Judge and unless it can be established that the association is prejudicially affected by the order passed by the learned trial Judge, the right of the 8 association has been infringed. The association cannot have any right to complain and we do not find any reason whatsoever why the association can feel itself aggrieved by the order passed by the learned trial Judge. If the association has not been conferred any right under the statue and if the association is not affected by the order, the association cannot come forward before this court alleging that the association is aggrieved. It is one thing to say that individual operator is aggrieved and it is quite different thing to say that the association is aggrieved and the association cannot be said to be aggrieved if some of the members of the association are aggrieved, inasmuch as the association is a separate and legal entity and the right of an individual member cannot be equated with the right of association."
Admittedly the association was not a party in the original proceeding, but filed an appeal against the interim order of injunction passed therein as aggrieved person.
It is no longer res-integra that even a stranger to the proceeding can prefer an appeal against an order provided he satisfies that such order binds him or affects any of his rights or has an impact upon any of its transaction.
In the said Report the Association did not plead that how its individual members were affected by an order of injunction and, therefore, the Court found that the Association cannot be said to be an aggrieved person to maintain an appeal against an order passed in a proceeding where it was not made a party.
This Court, therefore, does not find that the aforesaid judgement throws any light on the maintainability of the instant writ petition nor can be said to be the same directly applicable in this regard.
9Prior to the judgement rendered in case of Siliguri Inter District Minibus Owners' Association (supra), another Division Bench in case of West Bengal Head Masters' Association (supra) was considering the question of locus standi of the Association in maintaining the writ petition protecting and espousing cause of its members. A preliminary objection was taken therein that the Association cannot maintain the writ proceeding, as it cannot be said to have suffered personal injury by any steps and actions taken by the State or its instrumentality.
Repelling the contentions on demurrer taken by the respondent therein, the Division Bench held -
"16. The second objection is directed against the locus standi of the appellants - West Bengal Head Masters' Association and the West Bengal Guardians' Association. The appellant no. 1 is an Association registered under the Societies Registration Act. It is contended on behalf of the Board that these two Associations are not affected by the impugned revised syllabus, and that they cannot have any legal right. It is difficult to accept such a contention. Both these Associations are interested in the education of the boys and girls of the State and, if according to them, the syllabus has not been properly prepared they have, in our opinion, locus standi to file a writ petition. In our view, any person interested in education may come to the High Court complaining about any irregularity or illegality committed by a statutory body entrusted with the education of children and seeking relief against such irregularity or illegality. There is, therefore, no substance in the contention of the respondents and it is rejected."
In case of M. P. Cement Manufacturers' 10 Association (supra) the writ petition was filed by an Association challenging the vires of amendment of M. P. Upkar Adhiniyam, 1981 wherein and whereunder cess was imposed on captive power producer on the total units of electrical energy so produced. Though no specific point on maintainability of the writ petition by the Association was raised therein, yet it can be seen therefrom that the writ petition under Article 32 of the Constitution was entertained by the Apex Court and the determination was made on the merit thereof.
However, there appears to be a silver line behind the dark clouds in another decision of the Supreme Court in case of Steel Authority of India Limited (supra) where a point came up for consideration as to whether the Association can file the writ petition seeking Mandamus upon the State or its instrumentality to give effect to the instructions issued by the Steal Authority of India and referred the disputes to the Civil Court for determination of compensation. One of the foremost points came up for consideration before the Trial Court whether the Association can maintain the writ petition and also can make an application under Section 18 of Act-I of 1894.
In paragraph 49 of the said Report, the Apex Court observed that the cause of the individual owners of the land is purportedly espoused by the respondent Association, which is a society within the meaning of Societies Registration Act, 1860. The Apex Court further observed that the members are mainly poor and illiterate and their individual causes have been shouldered by the said Association. While overruling the contention raised on the maintainability of the writ petition by the Association, the Apex Court held:
"53. The Association, therefore, could file a writ application representing its members but, stricto 11 sensu; it could not have filed any application for reference in terms of Section 18 of the Act. For the purpose of making such an application, indisputably, the period of limitation provided for therein must be resorted to. However, there cannot be any doubt whatsoever that a statute of limitation should receive strict construction."
What can be culled out from the aforesaid decision is that though the Association can espouse the cause of individual owners of the land, who suffered by the acquisition proceeding initiated by the State and can maintain the writ petition, yet the Association cannot maintain an application under Section 18 of Act-I of 1894, as it contemplates individual application for reference.
It is thus seen from the aforesaid decision that it is not a hard and fast rule that the Association cannot maintain the writ petition under any circumstances, but it is a paramount duty of the Association to plead and aver that its individual members are affected. It cannot be said that the writ petition is bereft of any such pleadings and the Court is not in a position to ascertain whether each of its members is affected by the action of the State or its instrumentality.
This Court, therefore, cannot accept the proposition of law as sought to be raised by Mr. Majumder on the maintainability of the writ petition by the Association and hold that the writ petition is maintainable.
Reverting back to the contention raised in the instant writ petition for the purpose of finding out a prima facie case, this Court finds that the impugned Advisory dated 28th June, 2018 was issued in view of the directions of the Supreme Court Committee constituted for the purpose of Road Safety and reduction of numbers of road accidents and resultant 12 fatalities.
The genesis of the said Committee can be traced from the judgement of the Supreme Court in case of Dr. Rajaseekaran vs. Union of India & Ors. (Writ Petition (Civil ) No. 295 of 2012) delivered on 22nd April, 2014 and it would be apt and relevant to quote the excerpts from the said judgement, which runs thus:
"32. We are aware that the journey that has been undertaken would be long and arduous. It is difficult to visualise when the same would end, it at all. To ensure the success of the process undertaken, constant supervision of this Court of the measures undertaken by the Central Government and the State Governments and the extent of affirmative action on part of the Union and the States will have to be measured and monitored by the Court from time to time. Keeping in mind that the time available to this Court is limited we deem it proper to constitute a Committee to undertake the process of monitoring on behalf of the Court. The Committee will have the following composition and shall function in the manner indicated below:
Composition of Committee Sl. No. Name
1. Hon'ble Mr. Justice K. S. Radhakrishnan, Judge Chairperson Supreme Court of India (Effective from 15th May, 2014)
2. Mr. S. Sundar Distinguished Fellow, TERI Member Former Secretary, Ministry of Surface Transport, Govt. of India
3. Dr. (Mrs.) Nishi Mittal Ex. Chief Scientist, CRRI, Member 13 Formerly HoD, Traffic Engineering And Safety (TES), Central Road Research Institute
33. (I) The composition of the above Committee will be notified by the Ministry of Road Transport and Highways, Government of India forthwith.
(II) The Committee will have its office in the national capital and requisite infrastructure including manpower will be provided by the Central Government.
(III) The remuneration and perquisites of the Chairman of the Committee and its members will be fixed by the Union Government in consultation with the individual concerned and in accordance with prevailing norms.
(IV) All State Governments as well as different Ministries/Departments/Wings of the Central Government who are currently looking after the multi-dimensional issues pertaining to road safety will submit their first report to the Committee within three months from today indicating the state of implementation and enforcement of all laws pertaining to (i) licensing;
(ii) certification of fitness of vehicles; (iii) limits of use of vehicles i.e. passenger carrying capacity, weight carrying capacity etc.; (iv) use of road safety devices; (v) adherence to norms including user of roads, and (vi) deployment of adequate manpower for enforcement of the existing provisions of law."
The primary object of such Committee was to implement and enforce the law pertaining to licensing; certification of fitness of vehicles; limits of use of vehicles; use of road safty devices; adherence to norms including user of roads and deployment of adequate manpower for enforcement of the extant provisions of 14 law.
The Committee so constituted undertook difficult and arduous exercise to submit the report from time to time on detailed status of the road safety and the measures to be taken. The sole object was to avoid fatal accidents and enhance the road safety for drivers and to maintain the plying of the vehicles in more disciplined manner. It further appears that the report of the Committee was taken into account at the subsequent stage of the writ petition and in a judgement delivered on 30th November, 2017 several directions were passed on the basis of the report and the directions issued by the said Committee on the road safety.
My endeavour is failed to find out from the judgement as aforesaid as well as the recommendations of the Committee as reflected therein that there was even a slightest suggestion relating to sale of two wheelers to an individual. It is one thing to say that the good governance lies also on preparing an action plan for road safety, improving in road engineering, discipline in the road traffic, periodical data of the road safety in future by various engineering groups and the institution to impart training and also to place various recruitment for road safety and emergent medical care, but it would be absolutely different, if the State decided to impose condition, which does not withstand on Wednesbury's Principle or exceeds beyond the statutory provisions.
It would be profitable to quote the Advisory in extenso, which reads thus:
"GOVERNMENT OF WEST BENGAL TRANSPORT DEPARTMENT 12, R.N. MUKHERJEE ROAD, KOLKATA-700001 No: 2936(50) - WT/3M - 15/2016 Pt. I Dated:28.06.2018 To: Registering Authorities (All) 15 Advisory Whereas in view of the directions of the Supreme Court Committee on Road Safety the State Government has taken several steps to reduce the numbers of road-accidents and resultant fatalities; and Whereas the Transport Department has also decided to engage an expert institute to conduct a study on traffic congestion on different roads in the State for taking short term and long term policy decisions in order to ensure free flow of traffic and to reduce number of road accidents in the State; and Whereas analysis of the available data of road accidents of the State in last 3 years reveals that the number of accidents of motor-cycle/two wheeler riders is ever increasing with maximum number of fatalities , a significant percentage of which are either minors or not holding any driving licences; and Whereas from the statistics of new registration of vehicles it is clear that motor-cycle/two-wheeler constitutes the maximum (around 80%) of all categories of vehicles and the said percentage is ever increasing; and Now, therefore, in order to check such indiscriminate registration of new two wheelers and their unauthorized use in the State, the Registering Authorities are advised to follow the methods of verification rigorously as detailed below before allowing submission of applications for registration of motor- cycles/two-wheelers within his jurisdiction:
i. Proof of address of the proposed buyer shall invariably be verified with the documents prescribed in the CMV Rule, 1989. ii. The requirement under sub-rule (2) of Rule 53 of West Bengal Motor Vehicles Rules, 1989 shall be followed strictly.
iii. In general the proposed buyer shall not be minor in age. However, in case of any minor, consent of the guardian will be required by ensuring physical appearance.
iv. The proposed buyer, if not minor, must be holder of DL of two-wheeler class.16
All the Registering Authorities are advised to direct the dealers of motor-cycles/two-wheelers under their jurisdictions to submit the profiles of the proposed buyers of motor-cycles/two-wheelers with all necessary documents and to ensure presence of such proposed buyers before the Registering Authority for verification and approval of the profile before selling any motor- cycle/two-wheeler. The process of such verification and approval thereof is to be regularly monitored by Director, Transport Directorate, West Bengal.
The dealer shall sell any motor-cycle/two-wheeler only after profile of the proposed buyer has been approved by the Registering Authority and thus be entitled to apply for registration on-line only for those approved cases. The Registering Authority shall not allow, without permission of Director, Transport Directorate, West Bengal, any application for registration which was made by the dealer without approval of the profile by the Registering Authority.
This advisory may be followed until further order.
Sd/-
Commissioner Dated: 28.06.2018"
At the very outset this Court must record that the idea behind the birth of the said Advisory is onerous and pious and in larger public interest. The said Advisory is for the road safety, reduction in numbers of road accidents and providing services and facilities in case of an emergency. The traffic congestion is in-built and ingrained aspect of the road safety, the number of road accidents and the resultant fatalities; and if any policy decision is taken in this regard, should always be welcomed by every citizen of the country. While framing the policy there must be extensive discourse and a proper study of the datas made available from different institutions or the committees, if constituted in this regard, and to implement the suggestion provided the same is in tune 17 with the provisions of the statute or the rules framed thereunder.
Under the said Advisory the first condition speaks that the sale of two wheelers cannot be made without the proof of address of the proposed buyer and the second condition speaks the adherence of the provisions contained under Sub-rule 2 of Rule 53 of the Motor Vehicles Act, 1989.
So far as the aforesaid two conditions are concerned, this Court does not find any difficulty therein, as it appears to be in conformity or in consonance with the provisions of the statute and the Rules framed thereunder.
So far as the conditions nos. 3 and 4 of the said Advisory is concerned, this Court find that it does not appear to be reasonable, rational and/or in conformity with the provisions of the statute. Furthermore it does not appear to have any nexus or relation to the road safety or the avoidance of resultant fatalities, which is the paramount consideration behind the issuance of such Advisory.
In Condition no. 3 they speak about the selling of the motor vehicles to a minor, yet it recognized such sale provided the consent of the guardian has been taken and their physical presence is ensured. Condition no. 4 imposes further restrictions on the sale of two wheelers to a person not a minor unless he is the holder of driving licence of two wheeler classes.
There appears to be inconsistency and incompatibility between the condition nos. 3 and 4; when a minor can purchase the two wheeler provided the consent is obtained from the guardian, but the sale of two wheelers cannot be effected to a major unless he holds the driving licence, which does not withstand on the Wednesbury's principle.
Though the State thought of creating an impetus 18 in avoidance of fatal accidents on road and augmenting safety and security to the drivers, yet the last two conditions being inconsistent and mutually destructive cannot be accepted. Furthermore Section 4 of the Motor Vehicles Act, 1988 forbids driving of the motor vehicle by any person under the age of 18 years at a public place, which is relaxed to 16 years in case the motor vehicle having engine power not exceeding 50 CC is driven in the public place.
If the object was to secure road safety and avoid accidents due to rash driving and if the law prohibits of driving of the motor vehicles by a minor, strict implementation in this regard may achieve such purpose, but this Court does not find any rationality in the decision that the motor cycle cannot be sold to a major unless he has a driving licence; on the other hand, it can be sold to a minor provided the consent is obtained from the guardian and the dealer must ensure the physical presence of the guardian.
This Court, therefore, finds that a prima facie case is made out for issuance of an interim order.
The balance of convenience and inconvenience also lies in favour of the petitioner and injury is caused to its members by introduction of condition nos. 3 and 4 of the said Advisory.
Therefore there shall be a stay of operation of condition nos. 3 and 4 of the impugned Advisory dated 22nd August, 2018 till the end of November, 2018 or until further order/orders of this Court, whichever is earlier.
The respondents are directed to file affidavit-in- opposition on or before 13th November, 2018; reply thereto, if any, be filed by 19th November, 2018.
The matter is made returnable as For Orders on 28th November, 2018 in the supplementary list.
(HARISH TANDON, J.) 19