Calcutta High Court
Anil Kumar Panda vs State Of West Bengal And Others on 17 July, 1996
Equivalent citations: AIR1997CAL125, AIR 1997 CALCUTTA 125
ORDER
Bhagabati Bati Prosad Banerjee, J .
1. The question involved in this appeal is with regard to the fixation of time-table after the permit had been granted long back. In order to appreciate the dispute that arose in this case, it is necessary to look into the provisions of the Motor Vehicles Act and the rules framed thereunder. Section 72 of the Motor Vehicles Act, 1988 (referred to as the "said Act"), provides the power of the authority to grant stage carriage permits. Sub-section (2) provides that the Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a stage carriage of a specified description and may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely :--
"..... (iv) that copies of the time-table of the stage carriage approved by the Regional Transport Authority shall be exhibited on the vehicles and at specified stands and halts on the route or within the area;....."
2. Clause (xxii) of sub-sec. (2) of S. 72 of the said Act provides the power of the Transport Authority to vary the conditions of the permit and that it can only be done after giving notice of not less than one month and by giving notice of one month, the transport authority may vary the conditions of the permit or attach to the permit further conditions.
3. So far as the provisions of the said Act is concerned there is no other provision for fixation or alteration of time-tables.
4. Admittedly, in the instant case, for change of the time-table and/or against the alteration of the time-table, the parties have moved this Court, obtained the directions and certain actions have been taken by the Regional Transport Authority, but while doing so, the Regional Transport Authority had not observed the provisions of the law.
5. It is well-settled principle that even if the authority is directed to exercise any of the statutory powers, in the event, the authorities concerned which are required to discharge the powers and functions of the law, are bound to follow the provisions and procedures laid down by the law. The various High Courts have taken various views in this matter.
6. The Division Bench of the Patna High Court, in the case of M/s. Rajput Transport Co. v. Nand Kishore, , had taken the view that the conditions in cl. (iii) of sub-sec. (3) of S. 48 which is in pari materia with the provisions of S. 72(2)(iii) of the present Act, is only for the purpose of the exhibition of the copies of the time-table as approved by the Regional Transport Authority. It does not confer any power in the R.T.A. to change the time-table from time to time. Such a power cannot also be spelt out from S. 48(3)(iv) of the old Act.
7. The view of the Rajasthan High Court, in the case of Malikram V. Regional Transport Authority (FB), is that the Transport Authority is not under a duty to fix the time-table so as to allow every stage carriage folding a permit on a particular route to run thereon daily and the fixing of a time-table and allowing the stage carriages to run by rotation is not in contravention of Rule 90 of the Rajasthan Motor Vehicles Rules, 1951.
8. The view of the Division Bench of the Patna High Court in Muneshwar Pandey v. R.T. A. , was that the provisions of the Act had not expressly mentioned passing of provisional orders fixing time-table. In this regard, it must be held that the authorities concerned are empowered to make interim arrangements for the period, that he is not in a position to make final order, and that it was further observed that the provisional order fixing a provisional time-table could not be modified. In this case, the earlier Division Bench judgment, , was considered too, but the earlier judgment did not consider the difference between the final order and the provisional order with regard to the fixation of a timetable.
9. The Division Bench of the Mysore High Court, in the case of K. Siddalingappa v. Revenue A.T. reported in AIR 1962 Mysore 161, had taken the view that in fixing the timings or modifying them, the Regional Transport Authority performed a quasi-judicial function and therefore it is bound to observe the rules of natural justice and give the persons likely to be affected an opportunity of being heard. Similar view was taken by the Andhra Pradesh High Court, in the case of A. Narayan v. State of Madras, reported in AIR 1957 Andh Pra 301.
10. In the absence of any procedure to be followed while fixing a time-table, in accordance with the provisions of S. 72(2)(iv) of the said Act, and in the absence of any specific provision laying down the procedure for modifying or altering the time-tables on an inter-State route wherein large number of buses are plying from early morning to the mid-night. The time-table approved in favour of the other may affect the other operators and vice versa. As the Parliament has not laid down any provision, the Court, from time to time had taken divergent views as the operators aggrieved by fixation of time-table or alteration thereof had moved the Court and that it has become a constant source of litigation which the High Court had to face and in this particular case, this court is faced with such a situation.
11. In the instant case, the appellant, in F.M.A.T. No. 2397 of 1994, Anil Kumar Panda was aggrieved by the resolution dated April 14, 1994, adopted in the joint meeting held by the Regional Transport Authority, Midnapore and Howrah, with regard to the night haltage of the vehicles plying on the route of Howrah to Digha, and consequent night haltage in Howrah and for not disturbing the time-table of the said vehicle which was allowed to the petitioner by the memo dated June 14, 1993 was prayed for.
12. It is the case of the appellant that he was granted a permit in the year 1992, and further directed the appellant/petitioner to follow the time-table which was allotted by the Memo No. 865 MV dated June 14, 1993. It appears that such a time-table was given on his prayer being made before the Regional Transport Authority and at that time other operators who may be affected or likely to be affected were not heard or given any opportunity in the matter. Aggrieved by the fixation of time-table in respect of the appellant, one Mr. P. R. Maity filed a writ application before this Court which was disposed of on August 19, 1993, directing the said Mr. Maity to make a representation before the R.T.A. concerned against the time-table issued to the appellant regarding the night halt in the District of Midnapore and the concerned regional 'authorities were also directed to consider and dispose of the same within a period of four weeks after giving personal; hearing to the parties. An appeal was preferred by the said Mr. Maity against that order before the Division Bench of this Court and the Division Bench presided by one of us in F.M.A.T. No. 2559 of 1993, passed an order modifying the earlier order dated September 3, 1995. The R.T.A. was directed to change the night haltage in terms of the earlier order passed by the Court and also directed that the matter is to be decided by the R.T.A., Howrah and Midnapore, on the police dated May 7, 1993 on the basis of the resolution taken in the other meeting after hearing all the operators including those who are likely to be affected and the R.T.A. had taken decision in accordance with law.
13. Thereafter, the said appeal along with another appeal came up for hearing to the another Division Bench wherein an order was passed on March 3, 1994 directing both the Secretaries of the Regional Authorities of Howrah and Midnapore, to sit together and decide the issue as regards the night haltage of the operators as the route is concerned with due regard to the earlier order of this Court as also the provisions of the Motor Vehicles Rules and it was furnished before the R.T.A., Howrab within certain time. Thereafter, pursuant to the order of the Division Bench, an order was passed.
14. Thereafter, in a purported joint meeting of the RTAs, Howrah and Midnapore, held on 14-4-1994, wherein it was decided that out of the total permits issued by the RTAs of Howrah and Midnapore, permits which were issued before 16-5-1992, would enjoy the night haltage on rotational basis. The permit issued after May 16, 1992 excepting the permits issued in terms of the order of the High Court, they would not be entitled to enjoy the rotational basis for night haltage out of the region. In the said resolution, it was admitted that the maximum number of passengers come from Midnapore in these vehicles to Howrah in the morning and return in the evening to Midnapore.
15. Secondly, almost all the registered owners of the vehicles hail from Midnapore region and that if vehicles make night halt rotationally, they would be in a better position to look after the vehicles and would be able to make their vehicles to be used in the long route as usual. Further, an unhealthy competition of the operators respect of the economic interest can be solved by this rotational night haltage at Howrah and Midnapore regions.
16. It was further observed that it was evident that due to congestion and shortage of spacious place to give the number of vehicle at a time rotational night haltage was considered fit and proper. The appellant's permit was issued after May 16, 1992 that is why he was not allowed to night haltage at Midnapore, but compulsory haltage on all the days at Howrah.
17. It was alleged that there was no rational basis and/or any principle for fixing acut-off date of May 16, 1992 and that having nexus sought to be achieved, excepting that there was a joint meeting of RATs of Howrah and Midnapore, held on May 16, 1992, wherein it was resolved that if no inter-district permit was issued over all the RTAs before the next joint meeting night halt of such vehicles should be within the jurisdiction of the permit issuing authority. The said decision was an interim decision pending final decision to be taken at the next meeting.
18. Apart from night haltage at Howrah compulsorily on all days, the appellant was asked to ply his vehicle on the basis of ad hoc time-table fixed on June 17, 1994 which was valid up to December 31, 1994. This direction of the Secretary of the Regional Transport Authority to fall back upon the said timetable which was valid up to December 31, 1994 was not backed up by any resolution of the Regional Transport Authority, Howrah. Records were called for and it is admitted position that the ad hoc time-table which was valid up to December 31, 1994 was made a final time-table, in so far as the appellant is concerned, and that was not done by any resolution of the RTA, Howrah or adopted in a joint meeting of both the RTAs and/or admittedly it was not done after observing the provisions of S. 72(2)(xxii) of the said Act. That the learned trial Judge rejected the writ application filed by the appellant on the ground that the alternative remedy that the appellant should have preferred an appeal under the Act; an alternative remedy stands as a bar to entertain the writ application in the facts and circumstances of the case. The provision for appeal is provided under S. 89 of the Act which inter alia provides that any person aggrieved by the refusal of a State Transport Authority to grant permit or by any condition attached to a permit granted to him may prefer an appeal. Further, there is a residuary clause in that section which provides that any person aggrieved by any order which may be prescribed within the prescribed time in a prescribed manner to the State Transport Tribunal.
19. Rule 207 of the said Rules provides :
"Any person aggrieved by an order made under sub-rules (5) and (6) of Rule 199, sub-rules (1) and (5) of Rule 201, or under Rules 204 and 205, may within 30 days from the date of receipt of such order appeal before the Appellate Authority as below: ... "
20. Rule 209 of the said Rules provides :
"(1) The authority to decide an appeal against the orders of a Regional Transport in respect of any of the matters referred to in clauses (a) to (0 of Section 89 of the Act, including an order passed on a resolution of the joint conference between the Regional Transport Authorities duly recorded in respect of any of the matters referred to in clauses (a), (d) and (f) of the said section, shall be the State Transport Appellate Tribunal to be constituted by the State Government under sub-section (2) of Section 89 of the Act."
21. The appeal is a statutory right under Rule 209. Appeal against the order of the Regional Transport Authority in respect of matters referred to in clauses (a) and (f) of S. 89 will lie to the Appellate Authority including an order passed on a resolution of the joint conference between the Regional Transport Authority duly recorded in respect of matters referred to in clause (a) and clause (b) and clause (f). But, S. 89 shall lie to the State Transport Authority. Clauses (a), (d) and (f) of S. 89 are as follows :
"(a) aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by a condition attached to a permit granted to him, or ...
(d) aggrieved by the refusal of the State or Regional Transport Authority to countersign a permit, or by a condition attached to such counter-signature, or
(f) aggrieved by the refusal to grant, permission under S. 83;....."
22. Regarding night haltage is concerned, there is no provision for any appeal inasmuch as night-haltage is not one of the conditions of the permit. Secondly, if it pertains to the change of the time-table, in that event, in the instant case no change of time-table has been made by the Regional Transport Authority and/or in accordance with the provisions of S. 72(2)(xxii). It is a letter given by the Secretary of the RTA who had no jurisdiction and who had not been delegated with the power of the RTA, and secondly, the prescribed procedure had not been followed. The appeal would lie against any condition attached to the permit is refused. But, in the instant case, no such conditions has been attached and accordingly in the facts and circumstances" of the case, the view of the learned trial Judge cannot be said- to be correct, and it is not consistent with the provisions of the Act.
23. Further, in the instant case, several writ applications were filed before this Court and the learned single Judge and the Division Bench of this Court had from lime to time passed orders, and it appears that on the basis of an order passed by the Division Bench, the resolution was adopted. When a resolution has been adopted pursuant to the order of the Division Bench of this Court, it would be inequitable, even if appeal lies, to reject the writ application and ask the parties to prefer an appeal when the period of limitation had already expired. When alternative remedy is there and not availed of, the Court can certainly direct the authorities to prefer an appeal if the provisions of appeal are there and adequate. But, at the same time, when the doors of justice for getting alternative remedy are closed, in that event, it would be highly inequitable and unjust to reject the writ application merely by saying that alternative remedy is a bar as that would amount to total denial of justice of this Court and at the same time the doors of alternative justice are closed. It is well settled principle that the right depends on remedies and if there is no remedy, consequently there cannot be any right. If a right is given, there may be provisions of enforcement.
24. The Supreme Court, in the case of State of West Bengal v. North Adjal Coal Co., , has held that normally before a petition under Art. 226 of the Constitution is entertained, the High Court would insist that the party aggrieved by the order of a quasi-judicial tribunal should have recourse to the statutory authorities which have power to give relief. But that is a rule of practice and not of jurisdiction. In appropriate cases, the High Court may entertain a petition even if the aggrieved party has not exhausted that remedies available under a statute before the departmental authorities.
25. Further, in the case of Union of India v. T. R. Verma, , it was held that existence of an alternative remedy does not affect the jurisdiction of the Court to issue writ.
26. In the case of H. L. Poultry v. State of Haryana, , it was held that on the same question under identical set of facts for 1969-70, Sales Tax Tribunal refused to refer the questions to High Court on reference which was pending. For the year 1970-71 a writ was filed for admitting the same and hearing along with the reference since the question was identical. Dismissal of the writ on the ground of alternative remedy held to be not justified.
27. Accordingly, when on the same question the earlier writ applications were entertained at times without number, in that event dismissal of writ application on the ground of alternative remedy cannot i be said to be justified. True, the High Court under Art. 226 of the Constitution cannot decide a disputed question of fact and the jurisdiction of the Writ Court is well-settled. It is well-settled that the Court is not concerned with the validity and/or the correctness of the decision, but the Court is seriously concerned with the decision-making process and if it appears that the decision has been taken not following the procedure prescribed by the law, it is a duty on the part of the Court to direct the authority to follow the practice and/or the procedure and/or to follow and/ or to observe the principles of natural justice.
28. In the instant case, there is a charge of discrimination by way of cut-off date namely 16-5-1992, and it is alleged that there is no rational basis for such classification by introducing an arbitrary cut-off date to the object sought to be achieved, and accordingly the order of the learned trial Judge dated 6-7-1994, is set aside.
29. The other appeal arose out of the judgment and order passed by the learned trial Judge dated 10-5-1996 (sic). The said writ application was filed by Sri Pran Ranjan Maity, who has alleged that the appellant herein was not observing the time-table which was fixed by the Secretary of the RTA, dated 14-6-1993, whereupon the learned trial Judge was pleased to hold that in any event the appellant plies his vehicle in terms of the other time-table excepting that time-table, dated 14-6-1993, in that event the RTA should forthwith inform the same to the Superintendent of Police, Howrah and Midnapore and the said Police Stations shall take steps for seizure of the vehicle of the respondent No. 10, and the RTA, Howrah was given liberty to take proper steps in accordance with law against the respondent No. 10, who is, appellant herein. In that case, the learned trial Judge had accepted the position that the said time-table dated 14-6-1996, was a permanent and valid time-table so far as the appellant is concerned. This is wholly incorrect. That ad hoc time-table lapsed on 31-12-1994.
30. In this connection, one thing is clear that the Regional Transport Authorities are also in dark about the practice and procedure that have to be followed while fixing and/or altering the time-tables. We fully agree with the view of the Patna High Court, , that the powers of the RTA while fixing the time-table are quasi-judicial and consequently, the principles of natural justice are fully applicable. On a route where hundreds of vehicles are plying round the clock, fixing a time-table or replacing a time-table with another would affect the interest of all the operators. It is not in dispute that the flow of passenger is more from Digha to Calcutta in the morning and in the evening from Calcutta to Midnapore, or in other words, those who have a night haltage at Digha, they would be enriched as they will get the lion's share of the passengers from Midnapore to Howrah and from Howrah to Midnapore. In such a case, the interest of the operators has to be looked into and it should be equitable, reasonable and just. Accordingly, we are of the view that the matter should not be looked into in isolation. The provisions of the Act have to be given a purposive construction.
31. It is one of the principles of legal policy that law should be just and the Court's decision should further the ends of justice.
32. Lord Reid, the Coutts and Co. v. I.R.C., 1953 AC 267, had held :
"In general if it is alleged that a statutory provision brings about a result which is so startling, one looks for some other possible meaning of the statute which will avoid such a result, because there is some presumption that Parliament does or intend its legislation to produce highly inequitable results."
33. The Court, while considering a provision of a statute must have regard to the consequences of such construction.
34. It is well-settled principle that the Court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament, (See Paragraph 321, Francis Bennion's Statutory Interpretation, 1984 Edition).
35. It is also the well-settled principle that the Court seeks to avoid a construction that causes unjustifiable inconvenience to persons who are subject to enactment, since this is unlikely to have been intended by Parliament. (See Paragraph 322 of the book mentioned above).
36. Accordingly, the Court should avoid a construction to allow any inconvenience which is not essential to the operation of the Act and which may in addition have adverse economic consequences.
37. It is also the principle that the Court seeks to avoid a construction that creates an anomaly or otherwise produces ah irrational or illogical result. (See Paragraph 323 of the said book).
38. It is also the principle that the Court seeks to avoid a construction that cures the mischief the enactment was designed to remedy only at the cost of setting up of a disproportionate counter-mischief since this is unlikely to have been intended by the Parliament. (See paragraph 326 of the said book).
39. Relying upon the aforesaid principles, we have to consider the provisions of the Act and take a view which does not produce any illogical, unworkable, impracticable, anomalous or illogical result; by fixing of a timetable in such a manner which causes serious prejudice to some at the cost of others and which benefits the others. So far as the decision of the learned trial Judge in the other appeal arising out of the order is concerned, we are of the view that the learned trial Judge was not apprised of the fact that the said direction given by the Secretary of the RTA was not a valid and a lawful direction and the Secretary of the RTA wanted to impose a provisional time-table valid up to December 31, 1994 without any resolution of the RTAs and tried to extend the validity of the said period of time-table by making it permanent in so far as the petitioner is concerned.
40. This action on the part of the Secretary, RTA, was wholly without jurisdiction and without the authority of law and accordingly we are of the view that the learned trial Judge was wrong in taking the view that if the appellant plies the vehicle in accordance with that direction, he should be taken to have committed an offence which is punishable and for which his vehicle may be seized by the police. This is contrary to the provisions of the law and on the face of it cannot be sustained.
41. Under S. 86 of the Motor Vehicles Act, it is provided that the transport authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit if anybody commits any breach of any condition contained in the permit; and accordingly if anybody violates the time-table which was fixed as a condition of the permit, his permit could be cancelled or suspended. This is the only penalty provided under the law. Accordingly, the directions given by the learned trial Judge to take a particular course of action cannot be said to be justified as it is a case of fixing a time-table of operators numbering about hundred who are plying within Calcutta and Digha and as it is admitted by the Regional Transport Authorities, namely Howrah and Midnapore that the flow of passengers from Midnapore to Calcutta in the morning and in the evening from Howrah to Midnapore is greater than the rest of time. So the operators who leave Digha in the early hours of the day and come to Howrah and leaving Howrah in the evening, they would be unjustly enriched at the cost of other operators; whereas an operator who starts from Howrah in the morning and comes back in the evening at Howrah, he will be deprived. The principle that should be followed is to be introduced as an equitable principle so that each and every operator who is equally placed should get the same and similar benefit. The authority concerned cannot direct one group to be favoured and the others not favoured or to introduce a system which would enrich some and result in deprivation to others. Public interest and public policy cannot justify such a course of action. Accordingly in order to do justice to all the operators who are plying on the route and for equal distribution of the profits or losses of the operators, the RTA should extend equal benefits inconsistent with the principle laid down in Art. 14 of the Constitution of India. There cannot be any privileged class on the basis of the cut-off date.
42. In the instant case, the said cut-off dale had no rational basis and accordingly, the decision taken in the joint meeting of the RTAs on April 14, 1994 must be set aside. There cannot be any irrational classification. Article 14 of the Constitution is an aspect of the rule of law. The doctrine of equality before the law is necessary corollary to the rule of law accepted by our Constitution. Absence of arbitrary power is the first essential of the rule of law upon which the whole constitutional system is based. In a system governed by the rule of law, the discretion when conferred upon the executive authority must be continued with clearly defined limits. The rule of law from this point of view means the decision should be made by opinion, principles and rules and in general such a decision should be predictable and citizens should know where he is. A decision taken without any principle or without any rule is impracticable and such a decision is the antithesis of a decision taken in accordance with the rule of law (See Jaysinghani vi Union of India, ).
43. In the instant case, we have also looked into the provisions of Rule 111 of the rules wherein it is provided that the vehicles to which the permit refers are normally kept within the region of the original transport authority". The Act is silent on this aspect of the matter. Accordingly, on the basis of the principle discussed above, we direct the Regional Transport Authorities to hold a joint meeting and take a decision where all the operators get equal opportunity as far as possible without any discrimination whatsoever. Of course, while taking a decision, there may be error here and there. But the object should be to extend equal benefits to all so that all the operators are treated at par and none is favoured.
44. Accordingly, we direct the Regional Transport Authority, Howrah, as well as the Regional Transport Authority, Midnapore, to hold a joint conference at any place of their choice and after giving notice to all the operators on the route and allow the rotational night haltage and fix up a time-table in such a manner and in such a form so that the operators who have to start in early hours to Midnapore, should be allowed to keep the vehicle there for the purpose of night haltage, and on the contrary, a person who has to ply a vehicle from Howrah in the morning, he should be given a right to night stay of the vehicle at Howrah. The rotational system of night haltage and the rotational time table that should be introudced, should do equitable justice to all and for the purpose of implementation of the rotational time table. The rotational night haltage be given to all the permit holders accordingly without any discrimination. Since this question is pending for a long time and since the litigation after litigation is continuing on this question it is to direct those authorities to hold such meeting within 21 days after giving notice to all the operators to be represented for the purpose of consideration of their views and the RTA and the said joint conference should change the time table extending the rotational night haltage at Midnapore and Howrah in such a manner so that it does not lead to any unhealthy and uneconomic competition, when all the operators are similarly situated and they have invested the same amount of money and are plying the buses on the route.
45. We are informed by the learned Counsel appearing for the Regional Transport Authority, Howrah, that such a joint meeting can be held within a period of 15 days. We accordingly give the authorities time to hold a meeting within three weeks with notice to all the parties and on hearing them, to take a decision which would be treated as a change of the condition of permit as laid down in Section 72(2) (xxii) of the Motor Vehicles Act, and it is also made clear that whenever the Regional Transport Authorities decide to change the conditions or permit, they must follow the procedures prescribed by the law and not to do anything contrary to Law and they must remember that they are exercising quasi judicial functions and not merely administrative functions and while exercising quasi judicial functions, the parties likely to be affected by any decision taken in any matter should be given an opportunity of being heard and the principles of natural justice have to be observed.
46. In the instant case, the Secretary of the Regional Transport Authority, Howrah, informed that time table of one of the parties should be the time table which lapsed in the year 1994 and which was fixed on ad hoc basis. Ad hoc time table cannot be made final in view of the determination made by the Division Bench of the Patna High Court, . We respectfully agree with the principles of law laid down therein and that is correct exposition of the law.
47. Until the matter is decided by the authorities in terms of this order, the parties will ply the vehicle on the basis of the state of affairs as existing excepting the petitioners/ appellant plying on the basis of the time table which was fixed and not on the basis of the letter of the Secretary, RTA, by which he was directed to ply the vehicle on the basis of the time table fixed on June 14, 1994 which was' purely ad hoc and whose life was only up to December 31 1994. But he will ply on the basis of the time table fixed on 14-6-1993, it is made clear that after a decision is taken in a joint meeting of the Regional Authorities of Howrah and Midnapore in terms of this order, the parties should follow the same and ply the vehicle and keep the vehicle at such places as may be determined in such meeting which should be treated as the change in the conditions of the permit as provided under the Law.
48. The plying of the vehicle in terms of this order will be purely ad hoc and subject to the determinations made by the authorities in terms of this order.
49. Accordingly, both the appeals are disposed of by this order. There will be no order as to costs.
50. The prayer for stay of the operation of the order is considered and refused.
51. Let a plain copy of the operative portion of the Judgment duly counter signed by the Asstt. Registrar (Court) be given to the learned counsel for the R.T.A.