Bombay High Court
Zakir Hussain And Ors. vs State Of Maharashtra And Anr. on 16 August, 2000
Equivalent citations: I(2001)ACC219, AIR 2001 BOMBAY 21, (2001) 1 ACC 219, (2001) 1 MAH LJ 442, (2001) 1 ALLMR 663 (BOM), (2001) 5 BOM CR 404
Author: D.D. Sinha
Bench: D.D. Sinha, S.K. Shah
JUDGMENT D.D. Sinha, J.
1. Heard Shri Bhangde, the learned counsel for the petitioners, Shri Gavai, the learned Government Pleader for the respondents and Shri Khapre, the learned counsel for the intervenor.
2. Rule. Rule made returnable by consent of the parties.
3. This writ petition is directed against the Notification dated 5th May, 2000 issued by the respondent No. 2 whereby plying of the Private Luxury Buses owned by petitioners are banned on the 3 roads mentioned in the said Notification.
4. The petitioners have challenged the impugned Notification mainly on the following grounds :
1. It is violative of Articles 19(1)(d) and 19(1)(g).
2. It is mala fide in nature since the respondent No. 2 has deviated from the normal procedure of calling no objections from the concerned before issuing such Notification.
3. It is issued without proper scrutiny of the material I.e. complaints available on record.
4. Even if, it is presumed that the respondent No. 2 can put reasonable restrictions on the fundamental right under Article 19(1)(d) and (g), the same should be minimum.
5. Shri Bhangde, the learned counsel for the petitioners placed reliance on the judgment of the Apex Court and in support of his contention.
6. Shri Bhangde, the learned counsel for the petitioners submitted that the petitioners are citizens of this country and have right to move freely throughout the territory of India as guaranteed under Article 19(1)(d) as well as to practice any profession, occupation, trade or business as guaranteed by Article 19(1)(g) of the Constitution. Any law, order or statute which is inconsistent with the provisions of part 3 of the Constitution, to the extent of such inconsistency is void. It is contended that the respondent No. 2 Collector by issuing the Notification dated. 5th May 2000 infringed the abovereferred fundamental rights of the petitioners and, therefore, the same cannot be sustained.
7. Shri Bhangde, the learned counsel for the petitioners in order to substantiate the second ground on which the impugned Notification is challenged by the petitioners, contended that the normal practice which is followed by respondent No. 2 before issuing such Notifications whereby the entries of the Motor Vehicles are prohibited on the particular roads in the interest of public at large, were issued earlier only after the proclamation, inviting objections from the general public before issuing such Notifications. However, in the instant case, the respondent No. 2 Collector has purposely deviated from this established practice and straightway issued the impugned Notification without calling any objection in this regard from the public at large. It is contended that the respondent No. 2 on 4-11 -99 issued similar notification putting ban on entry of Private Luxury Buses on six road mentioned in the Notification in the city of Akola. The action of respondent No. 2 was challenged by Navin Harichand Golcha, owner of the Private Luxury Bus by filing Writ Petition No. 4139/99. The Division Bench of this Court vide order dated 10-2-2000 allowed the said Writ Petition No. 4139/99 preferred by Navin Harichand Golcha and quashed and set aside the Notification dated. 4-11 -99 issued by the Collector. It is contended that the respondent No. 2 was enraged because of quashing of his Notification dated. 4-11-99 and, therefore, had an axe to grind against the Private Luxury Bus Owners. It is submitted that the respondent No. 2 created complaints in question in order to exercise power under Section 115 of the Act. The entire conduct of the respondent No. 2, in this circumstance, is mala fide in nature and, therefore, the Notification in question issued by the respondent No. 2 is mala fide cannot be sustained.
8. 'the third ground which is canvassed by the learned counsel is that there is nothing on record to show that the complaints which are alleged to have been filed by the citizens with the respondent No. 2 in respect of nuisance or inconvenience being caused by the Private' Luxury Buses on the three roads mentioned in the said Notification, were carefully verified and scrutinised by the respondent No. 2 before issuing the impugned Notification dated 5th May 2000. It is contended that these complaints do not specifically referred to the Private Luxury Buses only. However, they are general in nature referable to all the heavy motor vehicles including trucks, trailers etc. and, therefore, prohibiting only the plying of the Private Luxury Buses on the roads in question by issuing impugned Notification demonstrates the non-application of mind by the respondent No. 2 and hence the Notification also cannot be sustained on this ground.
9. Shri Bhangde, the learned counsel for the petitioners raised the fourth ground that even if it is presumed for the sake of argument that the respondent No. 2 is entitled to put reasonable restrictions on the fundamental rights of the petitioners under Article 19(1)(d) and (g), it should have been minimum restriction and not the total prohibition. The reliance is placed on the judgment of the Apex Court . It is submitted that the Collector ought to have considered the peak traffic hours on the roads in question and the entry of the Private Luxury Buses could have been banned only during those peak traffic hours. However, in the instant case, the respondent No. 2 by the impugned Notification completely prohibited the entry of the buses on the roads by issuing the impugned Notification and, therefore, on this count also it cannot be sustained.
10. Shri Bhangde, the learned counsel for the petitioners lastly contended that the respondent No. 2 can exercise power under Section 115 of the Motor Vehicles Act, 1988 only when he is satisfied that it is necessary to prohibit or restrict the entry of the motor vehicles on the particular road in the interest of public and convenience. It is, therefore, contended that in the instant case, the entire approach and procedure adopted by respondent No. 2 would show that the respondent No. 2 without being satisfied issued the impugned Notification in haste and, therefore, the same cannot be sustained in view of the Section 115 of the Act.
11. Shri Gavai, the learned Government Pleader for the respondents contended that the action of the respondent No. 2 amounts to reasonable restriction on the rights guaranteed by the Constitution under Article 19(1)(d) and (g) and, therefore, the action is sustainable in law.
12. Shri Gavai, the learned Government Pleader further contended that the Permit issued in respect of the vehicles of the petitioners by the Competent Authority is the Permit in respect of the Tourist Vehicles and the terms and conditions in the said permit would show that the petitioners have already agreed to abide by such terms and conditions. Some of them are as follows :
Condition No. 1 :
The Vehicle shall not be parked on public stands or in public places and offered for hire.
Condition No. 3 :
This permit does not entitle the holder to run the vehicle as a stage carriage.
Additional Condition No. 3 :
The Tourist Vehicle shall either commence its journey, or end its journey, circular or otherwise, in the Home State, subject to the condition that the vehicle shall not remain outside the Home State for a period of more than three months. The permit holder shall see that every return of the tourist vehicle to the home State is reported to the Authority which issued the permits.
Provided that where the contracted journey ends outside the home State, the vehicle shall be offered for hire within that State or from that State to any other State except for the return journey to any point in the home State.
Additional Condition No. 6 :
The tourist vehicle shall not be parked on any bus stand used by stage carriage and shall not operate from such bus stand.
13. It is, therefore, contended that the permit granted by the Competent Authority in respect of the Private Luxury Buses owned by the petitioners is the Tourist Vehicle Permit only and the Vehicles are required to commence it's journey or end it's journey, circular or otherwise, in the Home State as per the other conditions of the permit. It is further submitted that the respondent No. 2 received 44 complaints from the citizens of City of Akola in respect of nuisance and inconvenience caused to them by the Private Luxury Buses/Heavy Vehicles in respect of the three road's mentioned in the impugned Notification. It is further submitted that the Superintendent of Police has also submitted his report showing the number of accidents on the roads in question. It is contended that taking into consideration the complaints as well report of the Superintendent of Police, the Competent Authority i.e. respondent No. 2 has exercised powers under Section 115 of the Act and, therefore, the same is sustain-able in law.
14. It is further contended by the learned Government Pleader that due to impugned Notification, it is not correct to suggest that the entry of the petitioners' vehicles in Akola City is totally banned. It is contended that the Akola District Bus Owners and Travels Holder Association, Akola had demanded a plot admeasuring 50,000 sq, ft. in Nazul Sheet No. 30, Plot No. 9 for the Private (Luxury) Bus Stand. It is submitted that vide Order dated 28-6-2000, the Collector has given the advance possession of the said land to the Association subject to final approval from the State Government and rate as may be finally decided by the Government. It is, therefore, contended that the contention raised by the petitioners, in this regard, is not correct.
15. Shri Gavai, the learned Government Pleader lastly contended that the action of the respondent No. 2 is totally bona fide and is in the interest of the public at large. The same is also based on the proper application of mind and in respect of the complaints as well as the report of the Superintendent of Police.
16. Considered the contentions raised by the respective counsel and perused the impugned Notification as well as provisions of Section 115 of the Act. It is not disputed that in view of Section 115 of the Act, the Competent Authority has power on being satisfied that it is necessary in the interest of public safety or convenience, to prohibit or restrict the use of motor vehicles on a specified road. It is, therefore, clear that as far as the power to issue such Notification is concerned, it is undoubtedly clear that the respondent No. 2 is vested with such power in view of the Section 115 of the Act and is empowered to exercise the same in the contingencies contemplated under said section on such conditions. In the circumstances, therefore, the impugned Notification does not suffer from lack of statutory power in this regard.
17. It is no doubt true that under Article 19(1)(d), the petitioners have a right to move freely throughout the territory of India as well as to practice any profession or carry on any occupation, trade or business in view of Article 19(1)(g). However, it cannot be claimed that right to exercise the freedoms given and guaranteed by the Constitution in the abovereferred Articles should be unfettered by any restriction. Therefore, it cannot be said that the right is absolute one and cannot be subjected to reasonable restriction contemplated under Clause (6) of Article 19. The reasonableness of restriction has to be determined in an objective manner and from the stand point of the interest of the general public and not from the point of view of the person upon whom the restrictions are Imposed. While considering the aspect of validity of restriction and judging reasonableness of law, it is necessary to consider the surrounding circumstances and it is necessary to find out whether it is for furthering the social interest.
18. On the backdrop of the abovereferred principles, it will be appropriate to consider the facts and circumstances of the present case. In the instant case, it is not in dispute that there were as many as 44 complaints submitted to the Collector-the respondent No. 2 by the citizens of city of Akola in respect of nuisance/inconvenience caused by the Luxury Buses/heavy vehicles using the three roads in question. Similarly, these complaints also raised the aspect of safety of the citizens. It is also not in dispute that the Superintendent of Police has submitted his report dated 28-4-2000 to the Collector-respondent No. 2. This report demonstrates the number of accidents which had taken place on these roads. The respondent No. 2 being a public servant is expected to discharge his statutory duties in the interest of the public at large. It is also not in dispute that Section 115 of the Act, in fact, gives power to the Collector / Competent Authority to prohibit or restrict entry of the Motor Vehicles on road or roads in the interest of public at large. However, he has to exercise this power only on being satisfied on the basis of the material available before him that it is necessary to do so in the interest of public safety or convenience. In the instant case, in view of the above referred facts and circumstances, the impugned Notification dated 5th May, 2000 issued by respondent No. 2, in our opinion, is undoubtedly in the public interest and stands the test of reasonableness and can be construed as reasonable restriction on the fundamental rights given by Article 19(1)(d) and (g). The same is, therefore, not violative of Article 19(1)(d) and (g) of the Constitution of India.
19. The impugned Notification, in our opinion, cannot be declared mala fide merely because the Collector did not invite objections by issuing proclamation before issuing the impugned Notification in question. The contention of the learned counsel for the petitioners, in this regard, cannot be accepted firstly on the ground that there is no such requirement under Section 115 of the Act. The only requirement under Section 115 of the Act is whether there is a requisite material or circumstances exist before the Competent Authority to reach the necessary satisfaction in order to issue prohibitory order in the interest of public safety or convenience. In the instant case, undoubtedly there were 44 complaints received by the Collector in respect of the 3 roads in question as well as the report of the Superintendent of Police. In the circumstances of the case, therefore, it cannot be said that there was no material available before the Collector to reach the necessary satisfaction contemplated under Section 115 of the Act. On the other hand, the action of respondent No. 2, in view of the facts and circumstances of the present case, appears to be bona fide and is as per the scheme of the Section 115 of the Act. It will be to farfetched to hold that as the Division Bench of this Court set aside the earlier Notification, the Collector this time has acted with mala fide intention and issued the impugned Notification. In the circumstances, therefore, the contention of the petitioners in respect of mala fides cannot be accepted and must fail.
20. The perusal of the judgment of the Division Bench in W. P. No. 4139/99 would show that the impugned Notification in the said writ petition so quashed and set aside, was on the ground that there was no material whatsoever before the Collector then which could warrant exercise of power contemplated under Section 115 of the Act. It was, therefore, held that the satisfaction which was reached by the Collector, cannot be sustained since the same was based on non existing norms. In the instant case, for the reasons stated hereinabove, the situation is otherwise. There are as many as 44 complaints received by the Collector as well as the report of the Superintendent of Police. It is, therefore, undoubtedly clear that this is not a case where the power is exercised by the Collector without any material on record in this regard. The Competent Authority is the best Judge of the situation and circumstances and is expected to exercise the power under Section 115 of the Act in the interest of public safety or convenience etc. The jurisdiction of the Court, in such situation, can be extended only to find out whether there was material available before the Competent Authority in order to reach the requisite satisfaction contemplated under Section 115 of the Act for issuing prohibitory order or Notification. In our opinion, jurisdiction cannot be extended to find out adequacy or inadequacy of the material which warrants such exercise by the Competent Authority, which should to be left to the Competent Authority to act in the situation as per the Scheme of the section. In the circumstances, therefore, the contention of the petitioners that the impugned Notification suffers from non-application of mind, cannot be accepted and must fail.
21. It is, however, true that if the purpose is served by banning entry of the motor vehicles during the peak traffic hours, the Competent Authority no doubt is required to do so. However, as we have already stated hereinbefore that the Competent Authority being the best Judge of the situation and circumstances, is expected to act accordingly. In the instant case, on the basis of the complaints and report of the Superintendent of Police, if the Competent Authority thought it fit to prohibit the plying of the Private Luxury Buses on the roads in question, it cannot be said to be unfounded merely because on some other roads, the entry is prohibited by the Collector, of the heavy vehicles during the peak hours only.
22. For the reasons stated hereinabove, the impugned Notification issued by the Collector respondent No. 2 is neither mala fide nor suffers for want of jurisdiction and is also not violative of Article 19(1)(d) and (g) of the Constitution of India. The petition is misconceived, devoid of any substance and thus, dismissed. Rule discharged. No order as to costs.