Calcutta High Court (Appellete Side)
Sujit Kumar Dutta vs The State Of West Bengal & Ors on 29 March, 2011
Author: Soumitra Pal
Bench: Soumitra Pal
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29.3.2011
W.P. 5495(W) of 2011
Sujit Kumar Dutta
Vs.
The State of West Bengal & Ors.
With
W.P. 188 of 2011
Amit Kumar De
Vs.
State of West Bengal & Ors.
Mr. Angshuman Chakraborty ... for the petitioner in
W.P. 5495(W)/2011
Mr. Saktipada Jana
Mr. Subhrangsu Panda
Mr. Pranab Chatterjee ... for the petitioner in
W.P. 188 of 2011
Mr. N.I. Khan
Ms. Shampa Das Roy ... for the State in
W.P. 5495(W)/2011
Since common issues are involved, the writ petitions being W.P. 5495 (W) of 2011 (Sujit
Kumar Dutta vs. State of West Bengal & Others) and W.P. 188 of 2011( Amit Kumar Dey vs.
State of West Bengal & Others) have been heard analogously.
In the writ petition having W.P. No. 188 of 2011, the petitioner holding a stage carriage
permit has challenged the order contained in the Memo dated 24th December, 2010 issued by the
Deputy Secretary, State Transport Authority, West Bengal, whereby his application for replacement
of the vehicle was rejected on the ground that there was material difference as the proposed bus
contained lesser number of seats compared to the existing vehicle. The matter was moved on 1st
March, 2011 when directions were issued for filing of affidavits. Affidavit has been filed on behalf
of the State and is on record.
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Facts as mentioned in the petition are that the petitioner was having a vehicle bearing No.
WB-29/5546 having a seating capacity of 52+1 (Driver). Thereafter, the petitioner purchased a
vehicle, bearing registration No.DL-1 PC-0888, which was having a seating capacity of 37+1. The
vehicle was re-registered and is having registration No. WB-29A/2872. The petitioner applied for
temporary replacement of the vehicle, which was granted for three months with effect from 20th
August, 2010. Thereafter, on 26th November, 2010, the petitioner applied for permanent
replacement of the vehicle, which was rejected by the impugned order.
Learned advocate for the petitioner relying on the statements in the writ petition has
submitted that the authority cannot reject the application for replacement on the ground as
mentioned in the impugned order as "stage carriage" defined in section 2(40) of the Motor
Vehicles Act, 1988 ( for short "the Act"), though prescribes a minimum level of passengers to be
carried, does not stipulate the maximum number of passengers to be carried by a stage carriage
vehicle. According to him, as the vehicle fulfils the statutory requirement of the minimum number
of passengers to be carried, it cannot be discriminated on the basis of the seating capacity.
In the writ petition having W.P. No.5495(W) of 2011, the petitioner has challenged the
Memo dated 10th March, 2011 containing the order passed by the Regional Transport Authority,
Murshidabad, the respondent no.2, on the grounds similar to the grounds taken that in W.P. 188 of
2011. In this writ petition, it appears that the petitioner had filed an application for replacement of
his vehicle. Since it was not disposed of, he moved a writ petition being W.P. 24166 (W) of 2010,
which, by an order dated 6th January, 2011 was disposed of by directing the authority concerned to
consider the application of the petitioner for replacement of the vehicle. Pursuant thereto hearing
was granted and thereafter, order was passed, which is the subject matter of challenge.
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Learned advocate for the State relying on Section 83 of the Act and Rule 153 of the West
Bengal Motor Vehicles Rules, 1989 ("Rules" for short) submitted that since the seating capacity in
both the cases widely varied from what was prescribed in the permits, it amounted to difference in
material respects and as under the Rules power of rejection has been granted, actions taken are just
and proper. On an query, it has been submitted that State Transport Authority includes Regional
Transport Authority.
The question is whether, in view of Section 83 of the Act read with Rule 153 of the Rules
the respective authorities were justified in passing the orders rejecting the applications for
replacements.
In order to answer the question, it is necessary to refer to the impugned orders which have been
assailed in the writ petitions.
The impugned order in W.P. 188 of 2011 is extracted hereunder:
"Subject: Application for replacement of Vehicle in
Permit P. St. P. 280/03 (1/R).
-------------
Sir, With reference to your application dt. 16.11.2010 on the subject noted above, I am directed to say that vehicle No.WB-29/5546 (M-04, S/C-53) is not allowed as replacement for vehicle No. WB- 29A/2872 (M-2005, S/C-37) because seating capacity of the proposed vehicle is lower in comparison to the existing vehicle. It is noted here that as per Section 83 of M.V.Act, 1988 read with rule 153 of M.V. Rules, 1989, replacement of vehicle may be considered without any material difference. In the instant case seating capacity is much lower as it can be treated as material difference.
Yours faithfully, Deputy Secretary, State Transport Authority, West Bengal."
4The relevant portion of the impugned resolution adopted in the meeting of the Regional Transport Authority held on 10th February, 2011, which is the subject matter in W.P. 5495 (W) of 2011, is set out hereunder :
"RESOLUTION :- In compliance of the Hon'ble High Court's order, the petitioners Sri Sujit Kumar Dutta was heard through his authorized representative Sri Subhanjan Sengupta, Ld. Advocate on the day of R.T.A. Board Meeting. After careful consideration of the matter the prayer of the petitioner is disposed of and rejected on the following ground.
i) Permanent replacement could not be allowed under the provision provided under Sec. 83 of M.V. Act as the vehicle of permit holder is totally different in nature, class, sitting capacity, wheelbase etc. from existing vehicle to be replaced vehicle.
a) The old vehicle of the permit holder bearing registration no. WB57A-2446 is a medium passenger motor vehicle where as the proposed vehicle to be replaced by WB 57A-7503 is a heavy passenger motor vehicle.
b) The old vehicle of the permit holder bearing registration no.WB 57A-2446 is fitted with 4 (four) cylinder engine where as the proposed vehicle to be replaced by WB 57A-7503 is fitted with 6 (six) cylinder engine.
c) The old vehicle of the permit holder bearing registration no.WB 57A-2446 is fitted with 32 seats including driver and where as the proposed vehicle to be replaced by WB 57A-7503 is fitted with 42 seats including driver.
d) The old vehicle of the permit holder bearing registration no.WB 57A-2446 is having 168"
wheelbase and whereas the proposed vehicle to be replaced by WB 57A-7503 is having 207"
wheelbase."
In this context it is appropriate to refer to sections 2(40), 83 and the relevant portion of section 96 of the Act and the relevant portion of Rule 153 of the Rules.
Section 2(40) of the Act is as follows :-
" 2. Definitions - In this Act, unless the context otherwise requires - (40) - "stage carriage" means motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey."
Section 83 of the Act is as under :-
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"83. Replacement of vehicles. - The holder of a permit may, with the permission of the authority by which the permit was granted, replace any vehicle covered by the permit by any other vehicle of the same nature."
(Emphasis supplied) The relevant portion of Section 96 of the Act is extracted hereunder:-
" 96. Power of State Government to make rules for the purposes of this Chapter -
(1) A State Government may make rules for the purpose of carrying into effect the provisions of this Chapter.
(2) Without prejudice to the generality of the foregoing power, rules under this section may be made with respect to all or any of the following matters, namely :-
........ ......... ........ ....... .......
(xv) the determination of the number of passengers a stage or contract carriage is adapted to carry and the number which may be carried;
(xxxiii) any other matter which is to be or may be prescribed."
The relevant portion of Rule 153 is as follows :-
" 153. Replacement of particular vehicle authorized by permits. -
(2) Upon receipt of an application under sub-rule (1) the Regional Transport Authority may, in its discretion, reject the application -
...... ...... ....... ....... .......
(ii) if the new vehicle differs in material respects from the old one;
(Emphasis supplied).
As seen, Section 83 of the Act permits replacement of "any vehicle covered by the permit by any other vehicle of the same nature". I find section 2 of the Act defines motor vehicles of different nature. They are, - "contract carriage", "goods carriage", "heavy goods vehicle", "heavy passenger motor vehicle", "invalid carriage", "light motor vehicle", "maxicab", "medium goods vehicle", "medium passenger motor vehicle", "motorcab", "motor car", "motor cycle", 6 "motor vehicle or vehicle", "omnibus", "private service vehicle", "public service vehicle", "semi- trailer", "stage carriage", "tourist vehicle", "tractor", "trailer and transport vehicle". As noted, from the definition of "stage carriage", I find it prescribes a minimum level of passengers to be carried but does not prescribe the maximum level. Under section 2(40), if a motor vehicle constructed or adapted fulfils the conditions laid down therein, then it comes within the purview of the said definition, that is to say, if the seating capacity of the motor vehicle exceeds the minimum number of passengers to be carried, then it is a "stage carriage". Now, section 96 of the Act confers power on the State Government to make rules for giving effect to the provisions of Chapter-V of the Act. Pursuant to the rule making power conferred by the statute, Rules have been framed. Rule 153 of the Rules confers "discretion" on the State authorities to reject an application for replacement of vehicle "if the new vehicle differs in material respects from the old one". However, Rule 153(2) (ii) does not enumerate the "material respects" or the aspects on which the application for replacement may be considered. In this context it is to be noted that though Section 96 (xv) of the Act confers power on the State Government to frame Rules for "the determination of the number of passengers a stage carriage or contract carriage is adapted to carry and the number which may be carried", in Rule 153 there is no provision for such "determination". That apart, assuming the issue regarding seating capacity is not covered by section 96(xv), though section 96 (xxxiii) gives wide power to the State Government to frame rules regarding "any other matter which is to be or may be prescribed," Rules in this regard, as it appears, are yet to be framed. Hence, in my opinion as "material respects" in the Rule has not been defined, in the absence of guidelines it is vague. It is crystal clear from the facts contained in the writ petitions that in the absence of guidelines, while in W.P. 188 of 2011, the authorities had rejected the prayer for replacement on the ground that the vehicle proposed to be placed was having a lesser number of 7 seats, in W.P. 5495 (W) of 2011, one of the grounds for rejection was that the bus was having a higher capacity. Since Rules contain no guidelines, two different authorities considering two cases for replacement of vehicles, on their own had evolved different criteria for considering the applications for which the authorities were not authorized. Therefore, as Rule 153(2)(ii) confers unguided power or discretion to the authority to reject an application for replacement, the said Rule 153(2)(ii) is unworkable and cannot be acted upon. The unreported judgment in W.P. 26794(W) of 2007 with C.A.N. 10122 of 2007 ( Manorama Roy vs. State of West Bengal & Others), relied on by the learned advocate for the petitioners, wherein similar issue was involved, supports the contention of the petitioners. Moreover, as no hearing was granted, the impugned order dated 24th December, 2010 which is the subject matter in W.P. 188 of 2011, was in violation of natural justice and for that reason too the said order cannot be sustained.
Therefore, for the reasons as aforesaid, the writ petitions are allowed. The impugned orders are set aside and quashed. The respective Regional Transport Authorities are directed to consider the applications for replacements afresh by passing a reasoned order to be communicated to the parties within a period of eight weeks from the date of communication of this order after giving an opportunity of hearing.
Since the learned advocate appearing on behalf of the petitioner in W.P. 188 of 2011 submits that during the pendency of the writ petition, the order for temporary replacement has expired, the State Transport Authority, West Bengal, the respondent no.2, therein is directed to pass an order for temporary replacement of the vehicle till the reasoned order is passed and communicated to enable the petitioner to ply his vehicle.
There will be no order as to costs.
8Let urgent photostat certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.
( Soumitra Pal, J.)