Calcutta High Court (Appellete Side)
Monorama Roy vs The State Of West Bengal & Ors on 30 July, 2008
Author: Aniruddha Bose
Bench: Aniruddha Bose
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Aniruddha Bose
W. P. 26794(W) of 2007
With
CAN No. 10122 of 2007
MONORAMA ROY
Vs.
THE STATE OF WEST BENGAL & ORS.
Advocate for the Petitioners: Mr. A. Chatterjee
Ms. Kakali Datta
Advocate for State Respondents: Mr. Pratik Dhar
Ms. Jayeeta Chakraborty Heard On: 29.4.2008, 07.5.2008, 02.6.2008, 09.6.2008, 16.6.2008, 20.6.2008 & 23.7.2008.
Judgment On: 30.7.2008 ANIRUDDHA BOSE, J:-
1. The petitioner is the holder of two contract carriage permits under which she operates her vehicles in the route between Balurghat and Pranjal and Raghunathpur and Gopalpur. Both the routes lie within the jurisdiction of the Regional Transport Authority ("R.T.A." in short), Dakshin Dinajpur. These two vehicles bearing registration numbers WB-61/0280 and WB-41B/2361 have seating capacity of 19+1 and 31+1 respectively. Originally the vehicle bearing registration no. WB-41B/2361 was operating in the route between Balurghat and Pranjal whereas the vehicle with registration no. WB-61/0280 was plying between Raghunathpur and Gopalpur. The main controversy in this application is over right of the petitioner to place the vehicle having seating capacity of 31+1 in the route between Raghunathpur and Gopalpur.
2. The petitioner had applied for interchange of the vehicles in these two routes, which was initially permitted by the R.T.A. Subsequently, by a memorandum dated 29th November 2007 bearing no. 1245/MV, a copy of which has been made Annexure "P1" to the writ petition, the Secretary of the R.T.A. sought to supersede the order permitting such alteration of the vehicles. In this memorandum, objection was taken on placing the vehicle with the seating capacity of 31+1 in the route between Raghunathpur and Gopalpur on the ground that a vehicle with such a seating capacity was not to be permitted to ply as per the R.T.A. Board policy. The petitioner was directed to revert to the earlier arrangement of plying of the respective vehicles in their original routes. A second memorandum was issued by the same authority on 5th December 2007 (being Annexure "P2" to the writ petition) requiring the petitioner to withdraw the vehicle no. WB-41B/2361 from the Raghunathpur to Gopalpur route and ply the said vehicle in its original route. The petitioner was directed to deposit the RC book and the permit of the vehicle for necessary correction.
3. It is this direction for reversal of the earlier order permitting alteration of the vehicles in the two routes which is under challenge in the present writ petition. The text of the memorandum dated 29th November 2007, is reproduced below:-
"In supersession of previous order for alteration of the above vehicle between the route from Raghunathpur to Gopalpur and Balurghat to Panjul respectively which was allowed to ply w.e.f. 29.8.2007. It is mentioned that the seating capacity of Vehicle No. WB-41/2361 is 31+1 which is not to be permitted to ply as per RTA Board Policy. This alternative was made due to mistake from this end. As such, you are directed to ply the vehicle No. WB-61/0280 in the route from Raghunathpur to Gopalpur via Kamarpara and WB- 41B/2361 will ply in the route from Balurghat to Panjul and back w.e.f. 29.11.2007.
The report in compliance may please be intimated to this office early."(Quoted verbatim)
4. The petitioner has challenged the decision contained in this memorandum mainly on three grounds. The learned advocate appearing for the petitioner has argued that such unilateral decision of revocation of the earlier order of replacement offends the principle of natural justice in that no prior opportunity of hearing was afforded to the petitioner before the impugned memorandum was issued. The second ground of challenge is the jurisdiction of the R.T.A. to devise such policy. The case of the petitioner is that an R.T.A. is not empowered to formulate any policy under the Motor Vehicles Act 1988. Drawing my attention to the impugned memorandum, in which a policy decision of the R.T.A. Board has been cited as the reason for issuance of the impugned direction, he has argued that it is the State Government who can take such policy decision. On merit, submission of the petitioner is that under the provisions of Section 83 of the Motor Vehicles Act, the holder of a permit has been given the liberty to replace a vehicle covered by the permit by any other vehicle of the same nature. The petitioner's case is that both the vehicles of the petitioner fit the description of "omnibus" as defined in Section 2(29) of the Motor Vehicles Act 1988, and hence they are vehicles of the same nature. The expression "omnibus" has been defined in the said Act as "omnibus means any motor vehicle constructed or adapted to carry more than six persons excluding the driver."
In support of his submissions on this point, he has relied on a decision of the Hon'ble High Court of Karnataka in the case of Yashodara Kadamba Vs. K.S.T.A.T., reported in 1988 Kant LJ-I-501. On this count, it was argued that the expression "same nature" implies the same category or type of vehicle, and the determining factor for testing as to whether two vehicles are of same nature or not cannot be the seating capacity of the respective vehicles.
5. The transport authorities have contested the writ petition by filing affidavit- in-opposition. The main ground on which the impugned action of the R.T.A. is justified is a policy decision taken by the R.T.A. on 27th January 2004 on the issue of replacement of vehicle against the existing permit of Maxi - Taxi. A copy of the resolution of the R.T.A. Board through which the policy decision appears to have been taken has been annexed to the affidavit-in-opposition, and the relevant extract from such resolution is reproduced below:-
"P O L I C Y
1. Two cases referred by R.T.A., Malda & R.T.A. Uttar Dinajpur vide their memo. No. 758(2) M.V. dated: 5/1/2004 and Memo No. 741(8)/ M.V. dated: 28/8/2003 respectively against permit No. and permit No. 1141/85 for counter signature for operation of that permit within this district is her allowed. Secretary, R.T.A. is hereby authorised to countersign both the permit on behalf of R.T.A, Dakshin Dinajpur.
2) Policy of replacement of vehicle against existing pe
a) Trekker having seating capacity 9+1 & 10+1 will be replaced by trekker of seating capacity 9+1 to 10+1 (Mutually convertible)
b) Maxi - Taxi will be replaced by Maxi - Taxi of same wheel base within the range of seating capacity 11+1 to 1. Change of seating capacity is allowed within this limit a time of replacement. However regarding replacement of any M. Taxi having seating capacity = 11+1 to 19+1 by any Maxi - Taxi of same wheel base having seating capacity more 19+1 and upto 24+1, Secretary, R.T.A., is authorised to allow the replacement under the condition that such cases be placed before the next RTA for post facto approval.
c) Regarding replacement of Bus, the Secretary of R.T.A. is authorised to give effect the replacement in respect of all the routes of this district under the following conditions.
i) In case of increase of wheel base the same cannot be done before approval by the R.T.A.
ii) In case of same or decrease of wheel base, Secretary R.T.A can effect the replacement."(Quoted verbatim).
6. As regards the challenge of the petitioner to the impugned decision of the R.T.A. as contained in the impugned memoranda on the ground of violation of the principles of natural justice, learned Advocate for the respondents has relied on a decision of the Hon'ble Supreme Court in the case of Ashok Kumar Sonkar Vs. Union of India & Ors. reported in (2007) 4 SCC 54. Relying on this authority, it was submitted that since the petitioner as per the policy of the R.T.A. Board would not be able to ply the vehicle having seating capacity of 31+1 as Maxi - Taxi in the route between Raghunathpur and Gopalpur, giving any opportunity of hearing to the petitioner would have been a futile exercise. The relevant passage of this judgment on which reliance has been placed, is reproduced below:-
"26. This brings us to the question as to whether the principles of natural justice were required to be complied with. There cannot be any doubt whatsoever that the audi alteram partem is one of the basic pillars of natural justice which means no one should be condemned unheard. However, whenever possible the principle of natural justice should be followed. Ordinarily in a case of this nature the same should be complied with. Visitor may in a given situation issue notice to the employee who would be effected by the ultimate order that may be passed. He may not be given an oral hearing, but may be allowed to make representation in writing.
27. It is also, however, well settled that it cannot put any straitjacket formula. It may not be applied in a given case unless a prejudice is shown. It is not necessary where it would be a futile exercise.
28. A court of law does not insist on compliance with useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut-off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard."
7. The other authority which has been cited by the learned Advocate for the respondents is an unreported decision of an Hon'ble Division Bench of this Court in F.M.A. No. 945 of 2004 passed on 12th September 2005. In this case the writ petitioner sought to replace a maxi cab which, under the statute is to have capacity to carry passengers beyond six persons but not more that twelve, by another vehicle which was having capacity of 23+1. This was held to be impermissible by the Hon'ble Division Bench.
8. I shall first deal with the issue as to whether the R.T.A. is at all empowered to frame any policy guiding replacement of vehicles because the impugned decision of the R.T.A. is founded on such policy. The Motor Vehicles Act, 1988 per se does not vest the Regional Transport Authorities with any power or jurisdiction to take any policy decision. The jurisdiction of transport authorities, so far as grant of permits and regulation of operations of commercial vehicles are concerned, has been specified primarily in Chapter V of the Act. I do not find any provision therein which would permit the R.T.A. to frame a policy of this nature. It would of course be permissible for an R.T.A. to evolve a set of norms for regulating its own activities under the statute to ensure uniformity in their decision making process. But such norms could be laid down on subjects which are within the exclusive domain of a particular R.T.A. In my opinion, an R.T.A. has no authority or jurisdiction to lay down norm as to what would constitute "vehicle of the same nature" as contemplated in Section 83 of the Act while considering the question of replacement of a vehicle. In the resolution of the R.T.A. to which I have referred to in the earlier part of this judgment, maxi taxis having the range of seating capacity between 11+1 and 24+1 have been considered to be replacable, if they have the same wheelbase. This resolution implies that maxi-taxis within this range of seating capacity and wheelbase would constitute vehicle of the same nature, so far as the area within the jurisdiction of R.T.A. Dakshin Dinajpur is concerned. If such norms are permitted to be laid down region-wise, then an R.T.A. of another region might evolve another set of norms on the issue of replacement of vehicles within their own region. Instead of constituting uniformity, it would lead to inconsistency. In such a situation, each R.T.A. would have a different criteria for defining what would constitute vehicles of same nature, and in that event situation may arise where the meaning of the expression "vehicle of the same nature" as laid down in the Act would vary from region to region within the same State. This is not contemplated in the Motor Vehicles Act, 1988.
9. I am thus satisfied with the submission advanced on behalf of the petitioner that the individual R.T.As are not empowered under the statute to frame a policy on the aspect of replacement of vehicle.
10. Having held so, I cannot accept the argument of the respondent authorities that affording the petitioner opportunity of hearing in the instant case would have been a mere formality. The decision of the R.T.A to revoke its original order of replacement is founded on this policy decision, as reflected in the memorandum dated 29th November 2007. In course of hearing, the learned Advocate appearing for the respondent authorities sought to contend that the seating capacity of a vehicle is a condition of permit, and in the present case since the petitioner in the process of replacement of vehicle in substance altered such capacity, she was guilty of changing the condition of permit. But this was not the ground for revoking the order permitting replacement, and having regard to the ratio of the decision of the Hon'ble Supreme Court of India in the case of Mohinder Singh Gill Vs. Chief Election Commissioner (AIR 1978 SC 851), the respondent authorities cannot be permitted to improve their defence of the impugned memorandum by making submissions on points not reflected, or reasons not disclosed therein.
11. In the facts of the present case, thus, the impugned memoranda cannot be sustained. The R.T.A. in my opinion do not have the jurisdiction to take a policy decision of the nature reflected in the impugned memorandum dated 29th November 2007. For this very reason, the justification of the respondents for dispensing with the requirement of giving the petitioner opportunity of hearing cannot be sustained. The ratio of the decision of the Hon'ble Supreme Court in the case of Ashok Kumar Sonkar (supra) is not applicable in the facts of the present case.
12. Argument was also advanced by the learned Advocates appearing for the petitioner and the transport authorities on the question as to whether seating capacity can be the determining factor for deciding as to whether two vehicles are of same nature or not while examining an application for replacement of a vehicle. However, that is not the ground on the basis of which the order of replacement was being revoked upon issuing the impugned memoranda. As such, I do not think it is necessary for me to adjudicate on this point, as this is not the issue in lis in the present proceeding.
13. For the reasons indicated above, the impugned memoranda, being Annexures "P1" and "P2" shall stand quashed. I make it clear, however, that this order shall not prevent the authorities from initiating any fresh proceeding for revoking the order of replacement on any ground permissible under the law other than the policy decision which I have held cannot be a valid ground. But in such a situation also, the principles of natural justice must be complied with.
14. The writ petition is allowed in the above terms.
15. There shall, however, be no order as to costs.
(ANIRUDDHA BOSE, J.) Later:
Prayer has been made for stay of operation of this judgment on behalf of the respondent authorities. Such prayer is opposed by Mr. Chatterjee considered his objection.
Let operation of this Judgment and Order remain stayed for a period of two weeks.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties as expeditiously as possible.
(ANIRUDDHA BOSE, J.)