Calcutta High Court (Appellete Side)
Ratan Chandra Das Adhikari vs The State Of West Bengal & Ors on 24 July, 2013
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present : The Hon'ble Justice Dipankar Datta
W.P. 17222 (W) of 2013
Ratan Chandra Das Adhikari
Versus
The State of West Bengal & ors.
With
W.P. No. 15970 (W) of 2013
Aswini Das
Versus
The State of West Bengal & ors.
With
W. P. No. 15972 (W) of 2013
Ganesh Chandra Samanta
Versus
The State of West Bengal & ors.
For the petitioners in
W.P. 17222 (W) of 2013, : Mr. Sakti Pada Jana, Advocate
W.P. 15970 (W) of 2013
and
W.P. 15972 (W) of 2013
For the respondents in : Mr. Pantu Deb Roy, Advocate
W.P. 17222(W) of 2013 Mr. S. Ruj, Advocate For the respondents in : Mr. Khandekar Moazzem Hossain, Advocate W.P. 15970 (W) of 2013 For the respondents in : Mr. Joy Gopal Biswas, Advocate W.P. 15972 (W) of 2013 Hearing concluded on : June 27, 2013. Judgment on : July 24, 2013.
1) These writ petitions involve common questions of law and fact and hence shall stand disposed of by this common judgment and order.
2) The three writ petitions are at the instance of three individuals, who have applied for permits on different routes before the Regional Transport Authority, Purba Medinipur (hereafter the RTA) to provide stage carriage services. Their applications have not been considered and disposed of by the RTA on the alleged ground that the RTA in its meeting held on July 18, 2012 had adopted a decision formulating certain routes and that applications for permits in respect of such formulated routes would only be considered. What follows therefrom is that since the routes on which the petitioners propose to operate stage carriage services are not included in such list, their applications would not be considered.
3) I need not enter into the factual controversy as to whether what the petitioners say is correct or not but one of the petitioners having challenged a notice dated February 26, 2013 issued by the Secretary of the RTA, the genesis of the dispute can be tracked and the same resolved.
4) The Secretary of the RTA issued notice dated February 26, 2013 enclosing therewith a list of bus and maxi cab routes. Such list contained the distinct numbers of the routes, the approximate distance between the termini of the listed routes and the maximum number of permits that could be granted on such routes. The notice is reproduced below:
"Applications are invited from interested persons eligible to have routes permits as per provision of section 69, 70, 71 and 80 of the Motor Vehicles Act, 1988 for stage carriage permit for plying of Buses and Maxi Cabs on the routes where vacancies exist at present. Number of vacancies available on routes have been given in Annexure - A. It is also mentioned for convenience of all concerned that Route No., Route details, Approximate distance etc. have already been notified vide this office Notice issued vide No. 647/MV dated 26/02/2013. Henceforth all the routes will be identified and known only by the Route number assigned to each through the said notification.
In case of granting permits Widows, Handicapped persons, and Beneficiaries of loans under SC/ST Schemes, BSKP, PMREGP, West Bengal Minorities Development and Finance Corporation would be given priority.
Guidelines on application for stage carriage permit i.e. application fee, application format, conditions for stage carriage permit etc. are enclosed herewith as Annexure - B. The last date for submission of complete application in the office of RTO, Purba Medinipur is 12.03.2013.
This notice is being issued in the interest of public service."
5) The notice dated February 26, 2013 has been challenged in W.P. 17222 (W) of 2013 on the ground that it is ultra vires the provisions of the Motor Vehicles Act, 1988 (hereafter the Act).
6) In course of hearing W.P. 17222 on June 24, 2013, being prima facie convinced that the notice dated February 26, 2013 was ultra vires and was liable to be set aside, I had called upon the Secretary of the RTA to remain present on June 27, 2013 for the purpose of ascertaining the source of his power to issue such notice. On June 27, 2013, the Secretary, RTA appeared in person and submitted that in issuing the impugned notice dated February 26, 2013, he had acted in terms of the resolution of the RTA dated July 18, 2012, copy whereof was placed before the Court.
7) It was decided in the meeting of July 18, 2013 by the RTA Board, inter alia, as follows:
"It has been seen the applicants apply on their own mentioning a route as per their point and consideration and later on it is seen that the route becomes difficult to be allowed while considering all rules and G.O.s and then leads to court cases and complaints. For ensuring some system and control on the nos. of vehicles (Buses/Mini buses/ Trekkers and Auto) plying on any route and providing adequate vehicles in a route for the convenience of vehicles and also introducing new routes to cover newly created roads and providing vehicles for the convenience of the commuters following action would be taken -
I. All the existing routes for vehicles (Buses/Mini buses/ Trekkers and Auto) in this District will be identified and prepared as a list. All such routes will be provided a unique and easily identifiable Route No. II. This no. should be displayed in the front and rear of the vehicles so as the passengers can see it from distance and select their vehicles. III. The list of existing routes would also contain the nos. of permits issued for that route and the Registration No. of the vehicles in those routes. IV. New routes for all categories of vehicles (Buses/Mini buses/Trekkers and Auto) would be identified by inviting suggestions/recommendations from BDOs, Sabhapati of PS, Zilla Parishad, and MLAs and also depending upon mass demand. The suggested routes after recommendations would be discussed in RTA meeting every time and referred to Concerned MVIs who shall survey the route and put up their reports within 15 days. The report shall be discussed in next RTA meeting to accept or reject. All such bodies shall be provided with a copy of orders and rules in a consolidated manner which they shall keep in mind and refer while selecting a route and type of vehicle and making a recommendation so as to avoid any confusion. They will only recommend route and type of vehicle and not any application for permit.
The Bus/Minibus/ Trekker owners Association/ Unions may also give their recommendations for the routes and nos. of vehicles.
V. The RTO would also survey the existing routes and identify the optimum nos.
of vehicles in each route which can ply on the route keeping in mind the viability of the route as well convenient to passengers so as passengers are able to get a vehicle to reach their destinations at reasonable period of hours of the day including morning and evening trips.
VI. The new routes recommended by different authorities would also be surveyed for deciding preliminary nos. of optimal vehicles on that route. VII. After the RTA Board approves the routes and the optimal nos. of vehicles in any route (existing as well new route) the vacancy for allowing additional vehicles would be known. The RTO will make an advertisement through properly circulated notices regarding the route (with route no.) and nos. of permits which will be granted on that route and invite applications from interested applicants. The notice shall be displayed in website, office of RTO, offices of Zilla Parishad, SDO and BDOs.
VIII. Initially for existing and new routes the applications would be invited for only about 50% of vacancies. Only after seeing the viability and public convenience the advertisement for remaining vacancies would be invited as decided by RTA.
IX. The applicants have to give an undertaking that they will ply their vehicles as per the time table and as per route. Any deviation in time table, Origin and destination and via route would be a valid ground for cancellation of the permit.
X. Application received after 10th August 2012 for permit for suo moto routes would not be considered. RTO would also notify immediately on these lines. Applications received so far, if are in order as per rules, would be considered and accommodated in the routes so selected by RTA. In case routes are different than the routes identified by RTA then applicant who has already applied prior to 10th August 2012 would be given an opportunity to modify his routes only once as per the routes identified by RTA.
XI. In case of issuing Permits to trekker it should be kept in mind that any Origin or destination point in case of a municipal area it should end or start at the periphery of the municipal town. Trekker should not be allowed to enter municipal towns. Municipalities and SDOs should be requested to ensure that passengers are able to get rickshaws or auto rickshaws from these END/START points at the periphery of the town. Separate routes for Auto Rickshaws for plying inside the town between different locations/points within the town should be identified, allotted a route no. and optimum nos. of autorickshaws should be identified. Applications should be invited for issuance of permit as mentioned in above cases. While granting permits - widows, handicapped persons, beneficiaries of loans under SC/ST schemes, BSKP, PMREGP and West Bengal Minorities Development and Finance Corporation would be given priority. The applicant has to be a resident of the municipal town for which he intends to apply."
8) I have heard the parties and considered the materials on record.
9) I cannot hold the Secretary, RTA to be entirely at fault, for, he was duty bound to give effect to the resolution of the RTA dated July 18, 2012. It is the RTA, headed by the Chairman (who is the District Magistrate, Purba Medinipur) and the other member of the RTA who are primarily responsible for taking a decision, which is ultra vires the provisions of the Act. As would appear from the resolution of the RTA dated July 18, 2012 extracted supra, the RTA had taken exception to applications for permits made suo motu by intending operators on routes of their choice, which the RTA found difficult to allow resulting in Court cases and complaints. The RTA intended to put in place some degree of regulatory control on vehicles to be plied on the routes and hence proceeded to lay down guidelines for compliance by all concerned.
10) Regrettably, in the process, the members of the RTA Board were oblivious of the provisions of the Act and the rules framed thereunder as well as the judgment of the Supreme Court reported in AIR 1992 SC 443 (Mithilesh Garg v. Union of India and ors.). Upon a comparative study of the Act and the Motor Vehicles Act, 1939 (hereafter the old Act), the Supreme Court observed that the procedure for grant of permits under the Act has been liberalized to such an extent that an intending operator could get a permit for the mere asking irrespective of the number of operators already in the field. Section 80(2) of the Act has been held to be the harbinger of liberalization providing that a regional transport authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act. It has also been held that there is no like provision as Section 47(3) of the old Act in the new Act and as such no limit for the grant of permits can be fixed under the Act, unless notification under Section 71(3)(a) thereof is issued limiting the number of permits that could be granted in respect of routes which are within a town having population of more than 5 lakhs.
11) The RTA Board seems to be ignorant of Section 68(3)(ca) of the Act too. The said provision lays down that it is the State Government that is empowered to formulate routes. The RTA Board is also not aware that the provisions contained in the Act as well as the old Act do not empower a permit issuing authority to prefer a class of people while deciding to grant permits, unless the situation is such that it is covered by the various clauses of Section 71(3)(d) of the Act. Considerations of grace, charity and compassion in the award of permits are outside the scope of the old Act, as has been held by the Supreme Court in its decision reported in AIR 1977 SC 1563 [Cumbum Roadways (P) Ltd. v. Balaguru Bus Service (P) Ltd.]. The same principle applies in respect of grant of permits under the Act too.
12) During the last 25 years the Act has been in operation, there have been innumerable decisions of the Supreme Court and the High Courts that under the liberalized policy of grant of permits envisaged therein, grant of permit is the rule and refusal is an exception. The power to refuse an application for permit can be exercised only on limited grounds which a law, validly made, confers on the authority. This would include restrictions which could be validly imposed having regard to the conditions of roads, availability of parking space, control of pollution, etc. and upon recording reasons. At the same time, the statutory authorities under the Act cannot evade responsibility of keeping a check on the erroneous and illegal exercise of power in granting permits under the liberalized policy.
13) The guidelines given by the RTA Board in relation to identification of routes by inviting suggestions/recommendations from public authorities and also depending upon mass demand and survey thereof to ascertain feasibility of the maximum number of vehicles that could be operated; bar in respect of consideration of applications received after August 10, 2012 for permit for suo motu routes; bar in respect of trekkers to enter into municipal towns, preference to widows, handicapped persons, beneficiaries of loans etc.; and imposition of condition regarding residence are foreign to the provisions of the Act and the rules framed thereunder and cannot be sustained in law.
14) The anxiety of the Chairman of the RTA to control congestion on the routes and to introduce some degree of regulatory control in respect of grant of permits is appreciated but merely on the basis of such anxiety, the statutory provisions cannot be put aside. The State Government is given the power by Section 96 of the Act to frame rules for the purposes of carrying into effect the provisions of Chapter V. If indeed the present day situation has reached such alarming proportion that it is becoming increasingly difficult to regulate traffic having regard to poor road conditions, increase of population leading to user of carriage way by pedestrians and the like, it is for the State Government to frame appropriate rules in exercise of the power conferred by Section 96 of the Act or to exercise its executive power in terms of Article 162 of the Constitution if the extant provisions are considered to be deficient in this behalf.
15) Since the decision taken by the RTA Board in its meeting held on July 18, 2012 is ultra vires the provisions of the Act and the rules framed thereunder, the impugned notice dated February 26, 2013 is also ultra vires.
16) The resolution dated July 18, 2012 (although not challenged) and the notice dated February 26, 2013 stand set aside. The RTA is directed to consider the applications for permit filed by the respective petitioners in accordance with law as early as possible but not later than 8 weeks from date of receipt of a copy of this judgment and order.
17) The writ petitions are allowed to the extent mentioned above.
18) Photocopy of this order, duly countersigned by the Assistant Court Officer, shall be retained with the records of W.P. 15970(W) of 2013 and W.P. 15972(W) of 2013.
Urgent photostat certified copy of this judgment and order, if applied for, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)