Calcutta High Court (Appellete Side)
(Arun Barua vs The State Of West Bengal & Ors.) on 28 March, 2014
Author: Dipankar Datta
Bench: Tapen Sen, Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present : The Hon'ble Justice Dipankar Datta
W. P. No. 19227 (W) of 2012
(Arun Barua v. The State of West Bengal & ors.)
with
W. P. No. 9236 (W) of 2012
(Narayan Chandra Biswas & ors. v. The State of West Bengal & ors.)
with
W. P. No. 18354(W) of 2012
(Dilip Sarkar & ors. v. The State of West Bengal & ors.)
with
W. P. No. 17633 (W) of 2012
(Debendra Nath Das Mahapatra & ors. v. The State of West Bengal & ors.)
with
W. P. No. 8537 (W) of 2012
(Ajit Kumar Sahu v. Regional Transport Authority, Nadia & ors.)
with
W. P. No. 17749 (W) of 2012
(Subrata Adhikary v. Regional Transport Authority, Nadia & ors.)
with
W. P. No. 21120 (W) of 2012
(Gouranga Mondal v. Regional Transport Authority, Nadia & ors.)
with
W. P. No. 21117 (W) of 2012
(Gautam Barai v. Regional Transport Authority, Nadia & ors.)
with
W. P. No. 21115 (W) of 2012
(Sushil Gain v. Regional Transport Authority, Nadia & ors.)
with
W. P. No. 21111 (W) of 2012
(Rabin Das v. Regional Transport Authority, Nadia & ors.)
with
W. P. No. 17784(W) of 2012
(Mukunda Majumdar v. Regional Transport Authority, Nadia & ors.)
with
W. P. No. 17757 (W) of 2012
(Samir Kr. Mondal v. Regional Transport Authority, Nadia & ors.)
with
W. P. No. 17755 (W) of 2012
(Baidyanath Kahar v. Regional Transport Authority, Nadia & ors.)
with
W. P. No. 17753 (W) of 2012
(Sankar Behara v. Regional Transport Authority, Nadia & ors.)
with
W. P. No. 17751 (W) of 2012
(Bimalendu Pramanick v. Regional Transport Authority, Nadia & ors.)
with
W. P. No. 8814 (W) of 2012
(Avijit Modak & ors. V. The State of West Bengal & ors.)
with
W. P. No. 7283 (W) of 2012
(Debasish Majumdar & ors. v. The State of West Bengal & ors.)
with
W. P. No. 19903 (W) of 2013
(Biswajit Mondal v. The State of West Bengal & ors.)
with
W. P. No. 19906 (W) of 2013
(Biswajit Chakraborty v. The State of West Bengal & ors.)
with
W. P. No. 19908 (W) of 2013
(Tapas Das v. The State of West Bengal & ors.)
with
W. P. No. 19910 (W) of 2013
(Sanjib Dutta v. The State of West Bengal & ors.)
with
W. P. No. 20957 (W) of 2013
(Supriya Sarkar v. The State of West Bengal & ors.)
with
W. P. No. 20958 (W) of 2013
(Pijush Kanti Bain v. The State of West Bengal & ors.)
with
W. P. No. 20959 (W) of 2013
(Utpal Sarkar v. The State of West Bengal & ors.)
with
W. P. No. 20960 (W) of 2013
(Maloy Kanti Sarkar v. The State of West Bengal & ors.)
with
W. P. No. 20961 (W) of 2013
[Shikha Roy (Biswas) v. The State of West Bengal & ors.]
with
W. P. No. 20962 (W) of 2013
(Bankim Paul Chowdhury v. The State of West Bengal & ors.)
with
W. P. No. 20963 (W) of 2013
(Manoj Mandal v. The State of West Bengal & ors.)
with
W. P. No. 20477 (W) of 2013
(Sudipta Ghosh v. The State of West Bengal & ors.)
Mr. Murari Mohan Das
Mr. Mrinal Kanti Sardar
....For the Petitioners in
W.P.8537 (W) of 2012,
W.P.17749 (W) of 2012,
W.P.17751 (W) of 2012,
W.P.17753 (W) of 2012,
W.P.17755 (W) of 2012,
W.P.17757 (W) of 2012,
W.P.17784 (W) of 2012,
W.P.21111 (W) of 2012,
W.P.21115 (W) of 2012,
W.P.21117 (W) of 2012,
and
W.P.21120 (W) of 2012.
Mr. Sanat Kumar Roy
Mr. Baidurya Ghosal
....For the Petitioner in
W.P.19227 (W) of 2012.
Mr. Sankar Nath Mukherjee.
....For the Petitioners in
W.P.7283 (W) of 2012,
W.P. 8814(W) of 2012,
W.P.9236 (W) of 2012,
W.P.17633 (W) of 2012,
W.P.18354 (W) of 2012,
and
W.P.20477 (W) of 2013.
Mr. Mukunda Lal Sarkar
....For the Petitioners in
W.P.19903 (W) of 2013,
W.P.19906 (W) of 2013,
W.P.19908 (W) of 2013,
W.P.19910 (W) of 2013,
W.P.20957 (W) of 2013,
W.P.20958 (W) of 2013,
W.P.20959 (W) of 2013,
W.P.20960 (W) of 2013,
W.P.20961 (W) of 2013,
W.P.20962 (W) of 2013,
and
W.P.20963 (W) of 2013.
Mr. Pantu Deb Roy,
Mr. Debabrata Saha Roy,
Mr. Jahar Datta,
Mr. Ashis Kumar Guha,
Mr. Naren Ghosh Dastidar,
Mr. Subrata Guha Biswas,
Mr. Jaladhi Das,
Mr. Suprabhat Bhattacharya,
Mr. A. Sikdar,
Ms. Sipra Majumder,
Mr. J. P. Chatterjee,
Mr. Subhabrata Datta,
Mr. S. P. Dalapati,
Mr. Debashis Sarkar,
Mr. A. Rakshit,
Mr. Bhakti Prasad Das,
Mr. Kamalendu Ghose,
Mr. Raja Ghosh, and
Mr. Siddhartha Ruj.
.......For the State in the
several writ petitions
Hearing concluded on : December 3, 2013
Judgment on : March 28, 2014
1. The petitioners in this batch of writ petitions had applied for permits before
various Regional Transport Authorities (hereafter the RTAs) to operate auto
rickshaws. All such applications have been rejected by resolutions of diverse
dates, referring to a notification dated January 29, 2010 issued by the State
Government. The challenge in all these writ petitions is to such notification
together with the separate resolutions rejecting the applications for permits.
2. Noticing that common questions of law and fact were involved, the writ petitions
were heard analogously; they shall stand disposed of by this common judgment
and order.
3. For facility of reference, the notification dated January 29, 2010 in its entirety
is reproduced below:
NOTIFICATION
No: 268-WT/3M-01/2010 Pt. I Date: 29/01/2010
WHEREAS the State Government in the Transport Department framed a policy for
granting of permit to 3-wheeled auto-rickshaws under notification No. 4786-
WT/3M-49/2001 Pt. I dated 19th October 2004, the main features of which inter
alia are quoted below:
"AND WHEREAS the Government in the Transport Department has been
considering various aspects involved in the matter of issue of granting
permits to such type of Three Wheeled Auto Rickshaws keeping in view the
interest and safety of the travelling public in general and the passengers of
such Three Wheelers in specific vis-à-vis the danger of accidents from fast
moving vehicles on the National and State Highways;
Now, therefore, the Government in the Transport Department, after
considering all the matters as stated hereinabove, holds that such 3-wheeled
passenger vehicles cannot be treated as Maxicab for the purpose of granting
State Carriage Permits within the purview of the said Notification No. 2317-
WT/3M-49/2001 dated 7th June 2004 and directs that henceforth no permit
(both Stage Carriage and Contract Carriage) to such Three Wheeled Auto
Rickshaws shall be granted as indicated below under the category of
'Maxicab';
(a) In routes/areas covering more than one district,
(b) In routes/areas falling within the jurisdiction of Kolkata Metropolitan
Area.
The Government further directs that granting of permit to such 3-Wheeler
Auto Rickshaws within a particular district only may however be considered
by the concerned RTA of the districts (outside the Kolkata Metropolitan Area)
after observing all the orders issued by the Transport Department in regard
to the restrictions imposed so far in the matter of granting permit to the Three
Wheeled Auto Rickshaw and after taking into consideration the road
condition, congestion of road traffic and safety and security of the
passengers travelling in such 3-Wheeled Auto Rickshaw as aforesaid, within
the ambit and scope of the Motor Vehicles Act, 1988 and Rules framed
thereunder.
The Government in the Transport Department shall only be competent to
grant any relaxation in the matter."
AND WHEREAS His Lordship the Hon'ble Mr. Justice Tapen Sen passed an order
dated 5th January 2010 in W.P. 22994 (W) of 2009 wherein His Lordship observed
that the State Government should formulate an appropriate policy in the matter
pertaining to the grant of auto-rickshaw permits in the State;
AND WHEREAS the Transport Department has since considered the matter afresh
taking into view different aspects in respect of such grant of permits to auto-
rickshaws, namely, safety and security of the passengers in the context of growing
rate of road accidents, traffic congestion as well as the volume of traffic in different
roads in the State.
Now, therefore, in consideration of all these aspects and in pursuance to the orders
of the Hon'ble High Court, the Governor is pleased to direct that the following
guideline should be followed in respect of granting of 3-wheeled Auto-rickshaw
permits in this State :
1. No new auto-rickshaw permits should be granted in routes and areas falling
within the jurisdiction of Kolkata Metropolitan Area;
2. No new auto-rickshaw permit should be granted in routes and areas covering
more than one district;
3. No new auto-rickshaw permit will be allowed on National Highways except
crossing such NHs at recognized points;
4. Plying of new auto-rickshaws on State Highways shall be restricted upto a
stretch of maximum 3 kms;
5. No new auto-rickshaw permit will be issued covering more than 30% of existing
bus routes in roads other than NH/SHs;
6. Grant of 3-wheeled auto-rickshaw permit within a particular district only may,
however, be considered by the concerned RTA of the district after taking into
consideration the road condition, congestion of road traffic and safety and
security of the passengers travelling in such 3-Wheeled Auto Rickshaw as
aforesaid, within the ambit and scope of the Motor Vehicles Act, 1988 and rules
framed thereunder.
The Government in the Transport Department shall only be competent to grant
any relaxation in the matter.
This order shall take immediate effect.
4. Bare perusal of the said notification would reveal reference to an order dated
January 5, 2010 passed by Hon'ble Tapen Sen, J. while considering W.P.
22994(W) of 2009. It would be necessary to note what His Lordship exactly
directed and hence such order is quoted verbatim hereunder:
"Having heard the parties this Court is of the view that the matter pertaining
to the grant of auto rickshaw permit on the route Mamjoamghat to Ramnagar
via Viana Station, Bagula Station, Kaikhali requires a reconsideration by the
Regional Transport Authority, Nadia. The reason why this Court feels that
there should be a reconsideration is because the application has been
rejected on three grounds. Two of such grounds, namely the ones pertaining
to not furnishing garage details and not supplying proof of financial stability,
have already been decided by this Court in a number of Writ Petitions
including W.P. No. 20788 (W) of 2009 with W.P. No. 20789 (W) of 2009 on
16th December, 2009.
Consequently, this Court is of the view that so far as these two grounds are
concerned, the Authorities should reconsider the matter in the light of the
observations made therein.
So far as the third ground is concerned, it appears that the Authorities have
stated that the route applied for is a bus route. On the basis of this ground,
as well as the two mentioned above, the Authorities proceeded to reject the
application for grant of an auto rickshaw permit.
The learned counsel for the petitioner submitted that the statute nowhere
lays down that an application for an auto rickshaw permit shall be rejected if
a portion and/or the route applied for by the said auto rickshaw overlaps a
route traversed by a bus. Learned counsel for the State could not dispute
such a contention.
Under such circumstances, the rejection of an application on such a ground
is alien to the Statute.
Unless the State Government frames a policy laying down qualifications and
criteria for grant of an auto rickshaw permit, a Regional Transport Authority,
on its own, cannot take such a decision. It is true that if Auto Rickshaws are
allowed to ply on bus routes, there may be severe traffic congestion or risk to
the safety of passengers traveling in such auto rickshaw, but unless the
State Government formulates a policy, the rejection by an authority on a
ground which is not within the policy of the State nor within the statute,
cannot be allowed to be sustained.
Accordingly, the order and/or the Resolution of the Regional Transport
Authority, Nadia, taken on 18/7/2009 is set aside and the matter is
remanded to the said authority for a reconsideration and for taking a fresh
decision in accordance with law within a period of four weeks from the date
of receipt of a copy of the order.
Simultaneously, let a plain photocopy of this order be handed over and
served upon the learned Advocate General, State of West Bengal, for
consideration of the observations made above and for taking up the matter
with the Government for considering the desirability of framing an
appropriate policy in the matter pertaining to the grant of auto rickshaw
permits.
With the aforesaid observations, this writ petition is disposed of.
Subject to an application for certified copy being made and proof in support
thereof being produced, let a plain photocopy of this order, duly
countersigned by the Assistant Registrar (Court), be handed over to the
parties on usual undertakings."
5. Mr. Murari Mohan Das, learned advocate representing the petitioners in W.P.
20957 (W) of 2012 and some other writ petitions advanced the lead argument in
support of the contention that the impugned notification is ultra vires and,
therefore, ought to be set aside. Submissions have also been made by Mr. Sanat
Kumar Roy, Mr. Sankar Nath Mukherjee and Mr. Mukundalal Sarkar, learned
advocates representing some other sets of petitioners. They echoed the
submissions of Mr. Das and prayed for relief as claimed in the respective writ
petitions.
6. All these writ petitions were opposed by Mr. Pantu Deb Roy, learned advocate
for the respondents, who prayed for dismissal of the writ petitions.
7. The submissions advanced on behalf of the parties may now be noted.
8. Referring to the provisions of the Motor Vehicles Act, 1988 (hereafter the MV
Act), Mr. Das contended that power to grant permits is vested in the State
Transport Authority, West Bengal (hereafter the STA) and on each of the RTAs
constituted for the several districts of the State; that power has been conferred
on the State Government to limit the number of permits to be granted, be it
stage carriage or contract carriage, only by notification in the official gazette
and that too on the direction of the Central Government, as would appear from
Sections 71(3) and 74(3) of the MV Act; that the power to frame rules has been
given to the State Government for controlling vehicular traffic; that power has
been given, vide Rule 88 of the West Bengal Motor Vehicles Rules, 1989
(hereafter the WBMV Rules), to the STA to frame policies to control and
coordinate the matter of road transport subject to directions issued by the State
Government, but the State Government has no power to frame policy for control
and coordination of road transport; that unless a rule is framed by the State
Government, power of the STA/RTAs cannot be truncated by the State
Government; that by an executive order under Article 162 of the Constitution,
the State Government cannot impose restriction on grant of permit since
legislative provisions relating to grant of permit are already occupying the field
and hence, room for an executive order restricting grant of permits does not
exist; that so long the STA/RTAs are empowered to grant permits keeping in
mind the liberalized policy of grant of permits under the MV Act, such power
cannot be abrogated by an executive order; that it was not the intention of
Hon'ble Tapen Sen, J. that no permit should be granted authorizing auto
rickshaws to ply on any bus route but what His Lordship intended was a
regulatory control and not a total restriction, and a total misinterpretation of
the order of His Lordship has resulted in the birth of the impugned notification;
that the impugned notification is contrary to the order of His Lordship; that
restrictions made in respect of routes outside towns having population of 5 (five)
lakhs can be imposed only by policy framed by the STA, which are to be
followed by the RTAs and the State Government has no power to say that in
respect of such routes the RTAs shall not issue permits; and that the
petitioners having been selected under SESRU Scheme and having surrendered
employment exchange registration cards, would be immensely prejudiced if the
impugned notification were to be sustained and allowed to stand in the way of
grant of permits in their favour.
9. While adopting the aforesaid submissions of Mr. Das, Mr. Roy contended that
the impugned notification renders the provisions of Section 80 of the MV Act
nugatory. The right conferred on an applicant for a permit to apply "at any
time" is sought to be taken away in an arbitrary manner, thereby contravening
Article 14 of the Constitution. That apart, restrictions imposed by the impugned
notification on inter-regional routes contravene Section 69 of the MV Act and no
encroachment of statutory provisions brought in force by the legislature is
permissible by an executive order. It was further submitted by him that the MV
Act does not prohibit operation of auto rickshaws on routes serviced by stage
carriages and the clauses in the impugned notification which run counter to the
central legislation must be declared ultra vires. It was also contended that the
Government has no power to fix the length of routes for granting permits and
the provisions of Sections 69, 74 and 80 of the MV Act would stand virtually
obliterated if the executive instructions were allowed to supplant the statute.
10. Mr. Mukherjee too voiced a grievance that the notification dated January 29,
2010 seeks to override the MV Act. Reference was made to Section 74(3) of the
MV Act to contend that if no notification has been issued limiting the fleet
strength of contract carriages, it is not open to the State Government to provide
by an executive order that congestion would be a factor for refusing grant of
future permits. The impugned notification being a piece of law created by the
executive overstepping its limits, he submitted that the same ought to be set
aside and the applications for permits may be directed to be considered afresh.
11. In his turn, Mr. Sarkar adopted the submissions of Mr. Das and Mr. Roy and in
addition he submitted that the applications filed by the petitioners represented
by him were rejected citing clause (6) of the impugned notification and that
without approval of the Central Government under Section 74 of the MV Act,
the applications ought not to have been rejected. By referring to pages 33 and
37 of the writ petition [W.P. 20960 (W) of 2013], a case of discrimination was
sought to be set up by him.
12. The following decisions were cited by Mr. Das and Mr. Roy in support of the
contentions raised on behalf of the petitioners:
1. P. H. Paul Manoj Pandian v. P. Veldurai : (2011) 5 SCC 214;
2. Nandini Sundar v. State of Chhattisgarh : (2011) 7 SCC 547;
3. State of M. P. v. S. K. Dubey : (2012) 4 SCC 578;
4. Jai Singh v. Union of India : 1993 Cr. L.J. 2705;
5. Manohar Lal Sharma v. Union of India : (2013) 6 SCC 616;
6. Brij Mohan Lal v. Union of India (2012) 6 SCC 502; and
7. S. Sivaguru v. State of Tamil Nadu : (2013) 7 SCC 335.
13. Per contra, Mr. Deb Roy argued that the State Government did not commit any
illegality. Referring to the order of Hon'ble Tapen Sen, J., he contended that the
Court had desired that an appropriate policy in the matter pertaining to grant
of auto rickshaw permits should be framed, which fructified in the issuance of
the impugned notification. The State Government in deference to the judgment
of Hon'ble Tapen Sen J. had considered it proper to activate itself to protect the
interest of a vast section of the public, who avail of the services rendered by
auto rickshaw operators. All the clauses of the notification, according to him,
are intended to sub-serve public good and, therefore, the Court may decline to
interfere in the challenge that has been presented by the petitioners. He also
relied on various decisions, which shall be referred to later, if necessary, in
support of his contention that the decision to regulate plying of auto rickshaws
in the State as taken by the State Government is lawful and that the impugned
notification is valid.
14. In reply, Mr. Das contended that the earlier notification dated August 6, 2004
issued by the State Government in relation to three wheeled auto-rickshaws
should have been brought to the notice of Hon'ble Tapen Sen, J. Since there
was a policy in place, there was no need to frame a further policy. It was further
contended that despite the restrictions in respect of grant of new permits for
auto rickshaw operators within Kolkata Metropolitan Area (hereafter the KMA),
several permits were issued without adhering to the notification dated August
6, 2004 and, therefore, the petitioners represented by him are also entitled to
parity. He prayed for an order on the Regional Transport Authority, Nadia
(hereafter the RTA, Nadia) to grant the petitioners permits with the condition
that they shall not enter the KMA, should the Court repel the challenge to the
notification dated January 29, 2010.
15. Having heard the parties at length, the first question that the Court is called
upon to answer is whether the notification dated January 29, 2010 is valid in
the eye of law or not. Should the answer be in the negative and it is declared
ultra vires, the impugned resolutions of the respective RTAs rejecting the
applications for permits of the petitioners are likely to fall through. On the other
hand, if the question is answered in the affirmative, each of the impugned
resolutions of the RTAs would have to be taken up for consideration
individually to ascertain whether the terms of the notification dated January
29, 2010 have been correctly applied or not in rejecting the applications for
permits.
16. The Constitution of India is the supreme law; it is the fountain head of all the
laws. It is well recognized by now that any Act of Parliament or of a State
legislature, could be challenged and set at naught as ultra vires, if it is
established that (i) either the Parliament or the legislature, as the case may be,
was not conferred the power by the Constitution to legislate on the subject
matter of the relevant legislation; and/or (ii) the subject legislation is
unconstitutional on the touchstone of Article 14 of the Constitution. Similarly, a
subordinate legislation or an instruction issued by the Central or a State
Government in exercise of executive power, which is found to foul the parent
enactment or the Constitution, can also be declared ultra vires. These principles
have not been disputed at the bar.
17. The MV Act is a central legislation, which has been enacted by the Parliament
having regard to entry 35 of List III of the Seventh Schedule to the Constitution,
which reads "mechanically propelled vehicles including the principles on which
taxes on such vehicles are to be levied". In 1988, when the MV Act was brought
on the statute book upon repealing the Motor Vehicles Act, 1939, operation of
auto rickshaws was at a nascent stage in the country and one hardly finds any
reference to it in the MV Act. Having regard to the fact that an auto rickshaw is
a mechanically propelled vehicle used for carrying passengers for hire and
having carrying capacity of 4/5 persons including the driver, it could be
comprehended within the meaning of a 'motor cab', defined in Section 2(25) of
the MV Act. For the first time, an auto rickshaw was defined by the Central
Government in Notification No. SO 436(E) dated June 12, 1989, meaning "a
motor vehicle having three wheels constructed or adapted and used to carry not
more than three passengers for hire or reward excluding the driver". The same
definition has been bodily lifted and incorporated in the West Bengal Motor
Vehicles Tax Act, 1979 by an amendment w.e.f. July 21, 1999 with an
explanation that a motor vehicle having three wheels constructed or adopted
and used to carry more than three passengers but not more than twelve
passengers for hire or reward excluding the driver shall not be treated as an
auto rickshaw but as motor cab or maxicab, considering its seating capacity
under the MV Act. Similar definition is found in the West Bengal Motor Vehicles
Additional Tax and One-Time Tax on Motor Vehicles Act, 1989. Obviously,
special provisions relating to grant of permits to auto rickshaws or any
regulatory mechanism in regard to operation of the same on routes are
conspicuous by its absence in the MV Act. Grant of permits to operate auto
rickshaws were made bearing in mind that it answers a 'contract carriage' as
defined in Section 2(7) of the MV Act, and Sections 73 and 74 thereof relate to
application for grant of contract carriage permit and grant of contract carriage
permit respectively.
18. Now, if a statute or a subordinate legislation does not provide any guideline
either in skeletal form or in any great detail how a particular situation is to be
dealt with and there appears to be a vacuum, what is expected of the
appropriate Government to deal with such situation?
19. Exactly fifty six years ago, a Constitution Bench of the Supreme Court in Ram
Krishna Dalmia v. Justice S.R. Tendolkar : AIR 1958 SC 538, had the occasion
to observe as follows:
"In the tempo of the prevailing conditions in modern society events
occur which were never foreseen and it is impossible for the
Parliament or any legislature to anticipate all events or to provide for
all eventualities and, therefore, it must leave the duty of taking
necessary action to the appropriate Government. This delegation of
authority, however, cannot be unguided or uncontrolled but the
discretion given to the appropriate Government must be guided by
public policy and public interest and must conform to the object that
the statute seeks to achieve."
20. A few years later, another Constitution Bench of the Supreme Court in Jyoti
Pershad v. Union Territory of Delhi : (1962) 2 SCR 125, observed as under:
"19. ***In the context of modern conditions and the variety and
complexity of the situations which present themselves for solution, it is
not possible for the legislature to envisage in detail every possibility
and make provision for them. The Legislature, therefore, is forced to
leave the authorities created by it an ample discretion limited,
however, by the guidance afforded by the Act. This is the ratio of
delegated legislation, and is a process which has come to stay, and
which one may be permitted to observe is not without its advantages.
So long, therefore, as the legislature indicates, in the operative
provisions of the statute with certainty, the policy and purpose of the
enactment, the mere fact that the legislation is skeletal, or the fact that
a discretion is left to those entrusted with administering the law,
affords no basis either for the contention that there has been an
excessive delegation of legislative power as to amount to an abdication
of its functions, or that the discretion vested is uncanalised and
unguided as to amount to a carte blanche to discriminate. The second
is that if the power or discretion has been conferred in a manner which
is legal and constitutional, the fact that Parliament could possibly have
made more detailed provisions, could obviously not be a ground for
invalidating the law."
21. These observations, instead of losing relevance over the years, have stood the
test of time, and constitute the parameters for exercise of the executive power of
the State under Article 162 of the Constitution. The rule that has now attained
due recognition is that the executive power of the State Government is co-
extensive with the legislative power of the State legislature.
22. The decisions of the Supreme Court cited by Mr. Das and Mr. Roy are mostly of
recent origin, rendered not by Constitution Benches. I endeavoured to ascertain
upon perusal of such cited decisions as to whether the same lay down a
principle of law that comes into conflict with the Constitution Bench decisions
referred to above or other Constitution Bench decisions on the scope and extent
of executive power exercisable by the Central Government or by a State
Government, viz. Rai Sahib Ram Jawaya Kapur v. The State of Punjab : AIR
1955 SC 549; Jayantilal Amratlal Shodhan v. F. N. Rana : AIR 1964 SC 648; B.
N. Nagarajan v. State of Mysore : AIR 1966 SC 1942; and Mahalakshmi Mills
Ltd., Bhavnagar, v. Commissioner of Income Tax : AIR 1967 SC 266. I have not
been able to find any inconsistency between any of the aforesaid decisions and
the decisions cited at the bar. The common thread that runs through all the
decisions is that the executive instructions could fill in gaps not covered by the
statutory provisions but such instructions cannot be in derogation thereof. In
other words, executive instructions cannot supplant statutory rules but may
supplement it. Merely because the field of motor transport is occupied by an
Act, here the MV Act, does not mean that executive instructions containing
guidelines for grant of permit cannot or may not be issued to be read into
unoccupied interstices of the statute in the absence of a clear mandate to the
contrary.
23. As and by way of illustration, I propose to discuss at this stage the law laid
down by the Supreme Court in Ambesh Kumar (Dr.) v. Principal, L.L.R.M.
Medical College : 1986 Supp SCC 543, for, in my opinion the law laid down
therein would squarely apply here. A batch of civil appeals preferred by
candidates who were aggrieved by dismissal of their writ petitions by the High
Court was under consideration. The question of law that the Court was called
upon to decide was whether a notice dated December 15, 1982 issued by the
Government of Uttar Pradesh laying down the qualification regarding eligibility
of a candidate to be considered for admission to the postgraduate degree in
MD, MS and diploma course in MD, MS etc. on the basis of merit in
accordance with the regulations made under the Indian Medical Council Act is
invalid, as it trenches upon entry 66 of List I of the Seventh Schedule to the
Constitution.
24. The facts of the reported case reveal that in accordance with the provisions of
Section 33 of the Indian Medical Council Act, 1956, the Medical Council with
the previous sanction of the Central Government had framed regulations laying
down the standards for proficiency to be obtained and the practical training to
be undertaken in medical institutions for grant of recognised medical
qualification. The said regulations, as approved by the Central Government,
laid down the criteria for selection of candidates for postgraduate training too.
For the purpose of the present discussion, it is not necessary to dilate on all
the criteria that were fixed by the regulations except that selection was to be
made strictly on merit judged on the basis of academic record in the
undergraduate course. Suffice it to note that the State Government issued a
notice on October 15, 1982 inviting applications for admission to the various
post-graduate courses in degree and diploma in the different specialities of the
medical colleges making it clear that the minimum eligibility qualification of
the applicants would be according to the recommendations of the Medical
Council of India and that the admission would be made as per existing rules
and regulations of the Government and the college, and recommendations of
the Medical Council of India. It was followed by a Government Order dated
December 15, 1982. In accordance therewith, a candidate in order to be eligible
for consideration for admission to the post-graduate course on merit must have
secured 55% marks for admission to post-graduate degree course and 52%
marks for admission to the post-graduate diploma course. A candidate who did
not secure the requisite marks in the MBBS examination as ordained by the
said Government Order would render him ineligible for consideration on the
basis of merit for admission to the various post-graduate courses in the
medical college. The unsuccessful candidates who were not eligible for
consideration according to this Government Order questioned the power of the
State Government in making the aforesaid order on the ground that the
Medical Council by its regulations had already laid down the requisite criteria
or standards for admission to the post-graduate courses in the medical colleges
in accordance with the merits of the candidates concerned and as such the
State Government was not competent to lay down further eligibility
qualification for the candidates for being considered for admission in the post-
graduate courses - both in the degree and diploma courses. It was contended
that the State Government was not competent to lay down or prescribe the said
qualification, which encroached upon the power of the Central Government as
provided in Entry 66 of List 1 of the Seventh Schedule. It was also contended
that entry 25 of List III of the Seventh Schedule to the Constitution is subject
to the provisions of entry 66 of List I and as such the said Government Order
being repugnant to the regulations made by the Medical Council and approved
by the Central Government pursuant to Section 33 of the Indian Medical
Council Act, was invalid.
25. It would be worthwhile to extract below what the Supreme Court held upon
consideration of the aforesaid contentions:
"20. The only question to be considered is whether the impugned order is
repugnant to or encroaches upon or is in conflict with the power of the
Central legislature to made laws in respect of matters specified in Entry
66 of List I of the Seventh Schedule to the Constitution. The Indian
Medical Council pursuant to Section 33 of the Indian Medical Council Act
had made certain recommendations which have been embodied in the
Regulations made by the Central Government laying down the criteria or
standards for admitting the candidates to various post-graduate
disciplines in the Medical Colleges of the State. These Regulations, as has
been quoted hereinbefore, clearly prescribe that the candidates should be
selected strictly on merit judged on the basis of academic record in the
undergraduate courses i.e. MBBS Course and this selection should be
conducted by the University. There are also other eligibility qualifications
provided in the said Regulations namely the candidates must have
obtained full registration i.e. they must have completed satisfactorily one
year of compulsory rotating internship after passing the final MBBS
examination and also they must have done one year's housemanship
prior to admission to the post-graduate degree or diploma course.
21. The impugned Government Order dated December 15, 1982 lays
down the criteria or eligibility qualification i.e. obtaining of 55 per cent
marks by candidates seeking admission in the post-graduate degree
course and obtaining of 52 per cent marks by candidates seeking
admission to postgraduate diploma course for being considered for
selection. Entry 25 confers on the State Government as well as the State
legislature the powers to make orders in respect of matters mentioned in
Entry 25 of List III of the Seventh Schedule to the Constitution i.e. with
regard to medical education the only limitation being that such order of
the State legislature will be subject to the provisions of entry 66 of List I
i.e. Coordination and determination of standards in institutions for higher
education or research and scientific and technical institutions. The order
in question merely specifies a further eligibility qualification for being
considered for selection for admission to the post-graduate courses
(degree and diploma) in the Medical Colleges in the State in accordance
with the criteria laid down by Indian Medical Council. This does not in
any way encroach upon the Regulations that have been framed under the
provisions of Section 33 of the Indian Medical Council Act. On the other
hand in order to promote and further the determination of standards in
institutions for higher education, the State Government who runs these
colleges provide an additional eligibility qualification."
"26. On a consideration of the aforesaid decisions we are unable to hold
that the impugned order dated December 15, 1982 has in any way
contravened or encroached upon the power of the Central legislature to
make laws or the Central Government to make orders in regard to matters
provided in Entry 66 of List I of Seventh Schedule to the Constitution.
There is no conflict between the Regulations and also the order in
question. The State Government by laying down the eligibility
qualification namely the obtaining of certain minimum marks in the MBBS
examination by the candidates has not in any way encroached upon the
Regulations made under the Indian Medical Council Act nor does it
infringe the Central power provided in the Entry 66 of List I of the Seventh
Schedule to the Constitution. The order merely provides an additional
eligibility qualification. We are in full agreement with the reasoning and
conclusion of the High Court in this respect. This contention therefore, in
our considered opinion, is without any merit.***"
26. What emerges from the above is that even if there exists a central legislation
providing eligibility criteria, the source whereof is an entry in List III of the
Seventh Schedule, it would nevertheless be open to the State Government to
issue executive instructions providing eligibility criteria in addition to those
fixed by such central legislation which are not contrary to public policy or the
object that the statute seeks to achieve, and which are definitely in public
interest.
27. Adverting attention to the MV Act and the WBMV Rules framed thereunder, it
is found that the guidelines for grant of permits to operate auto rickshaws are
few and far between. The MV Act, as noticed above, goes no further except
Sections 73 and 74 in relation to the procedure for grant of contract carriage
permits. Sections 95 and 96 of the MV Act authorize the State Government to
frame rules for carrying out the purposes of the chapter in pursuance whereof
the WBMV Rules have been framed. Rule 88 of the WBMV Rules confer power
on the STA to frame polices to control and coordinate the matter of road
transport subject to directions issued by the State Government and sub-rule
(4) of Rule 120 thereof, introduced with effect from December 16, 2003,
provides the special conditions of permit in respect of an auto rickshaw.
28. These are the statutory provisions operating in the field, and it is the
contention of the petitioners that anything beyond that would encroach upon
legislative judgment. Sections 73 and 74 of the MV Act offer broad guidelines
and cannot be construed as exhaustive enumeration of all factors. Reliance
placed on sub-rule (4) of Rule 120 of the WBMV Rules by Mr. Das, also appears
to be misconceived. It provides for special conditions of a permit. Conditions
can be attached to a permit only when a decision to grant permit is taken. Here
the stage is pre-grant of permit and the concerned sub-rule does not aid the
petitioners for resolution of the present controversy. What is left for
consideration is Rule 88. The policy for controlling and coordinating the matter
of road transport that the STA is entitled to frame in terms thereof is hedged
with the condition that the same has to be in tune with the directions of the
State Government. The RTAs, once such policy is framed, is also to regulate
their functions and activities in a manner so that the same conform, inter alia,
to the directions issued by the State Government. It follows, as a logical
corollary, that without a direction of the State Government the STA is not
empowered to frame any policy for controlling and coordinating road transport.
The submission of Mr. Das that it is the function of the STA to frame policy for
control and coordination of road transport is in ignorance of the condition
precedent and does not advance the petitioners' cause. It is axiomatic that
directions of the State Government in full measure in respect of the factors to
be considered for grant of auto rickshaw permits were so long absent, which
have been put in place by issuance of the impugned notification.
29. Although auto rickshaws provide a cheap mode of public transport, the Court
can certainly take judicial notice of auto rickshaws becoming of late a menace
on roads. The drivers have scant respect for the rule of law and care less for
the passengers carried on the vehicles. Accidents involving auto rickshaws
resulting in death of pedestrians are now a regular feature. Although the auto
rickshaws are covered by contract carriage permits, seldom do they operate as
such. Instead, the auto rickshaws provide stage carriage services. Not only
that, despite auto rickshaws in terms of the extant law not being permitted to
carry more than three passengers, four or even more passengers are carried on
the auto rickshaws for travel to their respective destinations and the law
enforcement agencies choose to look the other way. It is absolutely clear that
the auto rickshaw operators enjoy political patronage, which even dissuades
the law enforcement agencies to act against their interest and allow them to go
scot-free despite brazen violation of the provisions of the MV Act. A
comprehensive policy for regulating orderly operation of auto rickshaws was
long overdue and the impugned notification dated January 29, 2010 seems to
me to be a step in the right direction.
30. Apart from the fact of exercise of the executive power of the State in issuing the
impugned notification to regulate the policy in respect of grant of auto
rickshaw permits, which does not commend to me to be an act either upon
assumption of authority which the law does not confer or in excess of the
authority conferred, there is one other aspect that can never be lost sight of
and that is the order dated January 5, 2010 of Hon'ble Tapen Sen, J. The State
was bound to implement the direction contained therein. Assuming arguendo
that the State exercised an authority which it never possessed or in excess of
what has been conferred, the judicial order of this Court without anything
more acts as the protective shield and insulates the impugned notification from
being interfered with, so long the said judicial order is not wiped out of its
existence.
31. I have, therefore, no hesitation to repel the contention of the petitioners that
the impugned notification suffers from lack of authority or competence.
32. Next, I propose to examine whether the impugned notification is at all utltra
vires the MV Act and, if so, to what extent.
33. To appreciate the above point, each of the guidelines forming part of the
impugned notification has to be tested on the anvil of the MV Act. Insofar as
the restriction imposed on grant of new auto rickshaw permits on routes and
areas falling within the jurisdiction of the KMA is concerned [guideline (1)], it is
a reiteration of an earlier policy decision that was introduced vide notification
dated August 6, 2004. Such condition is clearly in tune with the provisions of
Section 74 of the MV Act and, therefore, valid. Guidelines (3) and (4) are the
mirror image of the anxiety of the State to disallow auto rickshaws to operate
on national highways and state highways, except to the extent indicated
therein. The risk of small vehicles operating on highways being involved in road
accidents at the instance of unruly drivers of bigger vehicles having 4 or more
wheels, who drive at breakneck speed even violating the speed limit fixed for
each such category of vehicles, cannot be ruled out. Insofar as the business of
operating transport vehicles that is permitted by the MV Act is concerned, the
interest of the travelling passengers is the paramount consideration and the
business interest of the operators providing stage carriage/contract carriage
services must yield to the interest of the passengers. Question of the
prospective operators of auto rickshaws earning less by reason of not being
allowed to operate on highways is of no consequence and the restriction
imposed in this behalf is a reasonable restriction on the right to carry on
business having regard to clause (6) of Article 19 of the Constitution. I see no
reason to hold that guidelines (3) and (4) ought to be invalidated merely
because the business interest of the operators is likely to suffer. Guideline (5),
which permits restricted operation of auto rickshaws on existing bus routes on
roads other than highways, is also one which has been thought of in the
interest of the passengers. There is no blanket restriction regarding plying of
auto rickshaws on bus routes but it would be restricted to 30%. Why the limit
is not 20% or 40% is not a matter for judicial review; it is a matter of policy and
the decision taken in this behalf does not suffer from Wednesbury
unreasonableness. There is also nothing in guideline (6) to which exception can
lawfully be taken. By reason of its dimensions, the stability of an auto
rickshaw being a 3-wheeled vehicle is suspect. If the road conditions are bad,
there is a likelihood of the same toppling over resulting in casualty. Safety and
security of the passengers in such situation should be given top-most priority.
The factor of congestion of road traffic, however, is not to be considered in
isolation, but conjointly with road condition and safety and security of the
passengers. Viewed from that angle, there can be no doubt that guideline (6)
would provide adequate light to the RTAs in the matter of grant of permits to
auto rickshaws, although the factor of congestion cannot be pressed in service
in isolation to reject an application for permit in the absence of a notification
issued under Section 74(3) of the MV Act. What remains is guideline (2) and it
is the contention of Mr. Roy that the same contravenes Section 69 of the MV
Act. First and foremost, none of the applications which have been rejected by
the impugned resolutions sought for permits on inter-regional routes.
Discussion on guideline (2) would, thus, be academic. However, since the point
has been raised, I propose to deal with it. It is no doubt true that Section 69 of
the MV Act provides general provisions regarding an application for permit on
inter-regional routes. True it is, that the MV Act does not expressly restrict
grant of a permit to an auto rickshaw in respect of an inter-regional route. But
as has been noticed earlier, the MV Act hardly refers to an auto rickshaw. It is
in the light of such position of the law that the validity of guideline (2) has to be
examined. The power of the RTA to grant a contract carriage permit is traceable
in Section 74 of the M.V. Act. In terms of sub-section (1) thereof, the RTAs are
empowered to grant permits with such modifications as they deem fit. Clause
(1) of sub-section (2) empowers the RTAs to attach conditions to the permits
that the vehicles may be used only in specified areas or on specified routes.
One cannot lose sight of the fact that public transport on long routes is
provided by 4-wheeled or 6-wheeled buses or 4-wheeled maxi cabs/motor cabs.
Having regard to the instability factor of an auto rickshaw referred to above,
auto rickshaws are permitted to operate on short routes and, therefore, if the
State Government has considered it necessary to impose a restriction in regard
to operation of auto rickshaws confined to a particular region, the same does
not, in my opinion, amount to a gross transgression of powers that the Court's
interdiction would be warranted. The guidelines are intended to maintain
passenger safety and security and that being the ultimate goal each
stakeholder ought to play for, the impugned notification containing the
guidelines appears to me to be unexceptionable.
34. Before I end the discussion on the point, it is my duty to deal with the
submission of Mr. Roy relating to rendition of Section 80 of the MV Act
nugatory, if the impugned notification were upheld. Section 80 permits filing of
an application for permit of any kind at any time. Decisions laying down the
law are legion that in view of the liberalized policy relating to grant of permits
under the MV Act, grant should be the rule and refusal the exception. It,
therefore, follows that the RTAs are not denuded of the power to refuse an
application if exceptional circumstances exist therefor. The impugned
notification contains guidelines in the nature of restrictions that the RTAs
ought to bear in mind while considering applications for permits. However, the
liberty of prospective operators to file applications for permits of any kind "at
any time" is not curtailed by the restrictive guidelines contained in the
impugned notification. The mischief sought to be remedied by introducing
Section 80(1) in the MV Act was to allow intending operators to apply for
permits suo motu, even in the absence of any notification inviting applications
for permits issued by a RTA. That right of an intending operator is not curtailed
by the impugned notification. Consideration of an application for permit carries
with it the obligation to examine the relevant laws on the subject and to order a
grant, if no restriction in regard thereto is imposed. On the contrary, rejection
of an application could be made referring to relevant provisions. My view is
fortified by the decision of an Hon'ble Division Bench of this Court in State of
West Bengal v. Kalyani Chakraborty : 2006 (1) CLJ (Cal) 37. The Bench was
considering the propriety of an order passed by a learned single judge directing
the concerned transport authority to issue offer letter in favour of the applicant
for grant of auto rickshaw permit. Although the application for permit was
rejected by a resolution dated October 5, 2001, the writ petition challenging
such resolution was ultimately allowed on April 11, 2005, when admittedly the
notification dated August 6, 2004 had come into force. Allowing the appeal of
the State, it was ruled by the Hon'ble Division Bench as follows:
"30. Considering all such facts and circumstances and having regard
to the aforesaid discussion we are of the opinion that the respondent
cannot be said to have unfettered right to get a permit for operating an
Auto Rickshaw in the route for which application was made. The right
under Section 74 of the Motor Vehicles Act, 1988 is also subject to
reasonable restrictions. Such restrictions may emanate from various
sources which include a subsequent change of situation arising out of
too little space for too many vehicles, congestion, pollution, road
conditions, public conveyance and so on and so forth.
31. In our opinion, such a discretion was not intended to be taken
away from the concerned Transport Authorities as that would only
lead to an ocean of uncertainty and a state of functional disorder."
35. The observations extracted supra apply on all fours in the present cases.
36. The challenge to the impugned notification on all the grounds urged by the
learned advocates for the petitioners, thus, fails and the impugned notification
is upheld.
37. I shall now proceed to deal with the writ petitions on merits and ascertain
whether the terms of the impugned notification have been correctly applied or
not by the concerned RTAs while rejecting the applications made by the
petitioners for permits to operate auto rickshaws on the routes of their choice.
38. The petitioners represented by Mr. Das, who had all applied before the RTA,
Nadia for grant of auto rickshaw permits on the route Kalyani Station to Picnic
Garden, an intra-regional route in the district of Nadia, can be divided into two
sets. The first set of petitioners comprise of those who have presented W.P.
8537(W) of 2012, W.P. 17749(W) of 2012, W.P. 17751(W) of 2012, W.P.
17753(W) of 2012, W.P. 17755(W) of 2012, W.P. 17757(W) of 2012 and W.P.
17784(W) of 2012, whereas the second set comprise the different petitioners in
W.P. 21111(W) of 2012, W.P. 21115(W) of 2012, W.P. 21117(W) of 2012, and
W.P. 21120(W) of 2012.
39. The RTA, Nadia considered the applications made by the first set of petitioners
and rejected the same by identical resolutions dated October 24, 2011, reading
as follows:
"As the route applied for is within the jurisdiction of Kolkata
Metropolitan Area, his application is not allowed in compliance with
Notification No. 268-WT/3M-01/2010. But his case is considered
sympathetically and after elaborate discussion it is decided that he
may be allowed an auto rickshaw route permit outside Kolkata
Metropolitan Area, if he applies within three months in this regard. He
and six others applied for three months time for submission of fresh
application of LPG Auto rickshaw route permit outside KMA."
40. The second set of petitioners is aggrieved by identical resolutions dated April
23, 2012, whereby their applications were rejected. One of such resolution
reads as follows:
"Heard, considered and not allowed as the route falls under KMA vide
notification no. 268-WT/3M-01/2010 Pt. dated 29.01.2010."
41. Although the effect of the resolutions dated October 24, 2011 and April 23,
2012 are the same, the petitioners falling in the first set have been granted the
liberty to apply for permits on areas/routes not falling within KMA. Such
liberty is redundant, inasmuch as grant of permit on a route beyond the KMA
is not prohibited unless the other five guidelines in the notification dated
January 29, 2010 are attracted. On merits, it has been contended that except
for the originating point i.e. Kalyani, which is within the jurisdictional limit of
Kalyani Municipality, the rest of the route falls within panchayat area and,
therefore, the restriction imposed by guideline (1) of the notification dated
January 29, 2010 was not applicable. Moreover, despite similar restriction put
in place by the earlier notification dated August 6, 2004, the RTA, Nadia had
issued permits in favour of others for operating their auto rickshaws on routes
falling within KMA.
42. The first ground of challenge laid by the petitioners ought to be examined
bearing in mind the definition of 'metropolitan area' in clause (c) of Article
243-P of the Constitution. It reads as follows:
"ARTICLE 243-P. Definitions. - In this Part, unless the context
otherwise requires, -
******
(c) Metropolitan area means an area having a population of ten lakhs or more, comprised in one or more districts and consisting of two or more Municipalities or Panchayats or other contiguous areas, specified by the Governor by public notification to be a Metropolitan area for the purposes of this Part;"
43. Empowered by such provision of the Constitution, the Urban Development Department, Government of West Bengal issued notification dated June 26, 2001 describing the areas in the schedule appended thereto to be a 'metropolitan area' known as the Calcutta Metropolitan Area for the purposes of Part IXA of the Constitution. It appears on perusal of such notification that the entire area within the jurisdiction of Kalyani Municipality is included in the Calcutta Metropolitan Area. The petitioners have admitted that the originating point of the route in question i.e. Kalyani Station to Picnic Garden is within the jurisdictional limits of Kalyani Municipality and even according to their own admission, they are not entitled in law to contend that a part of the route on which permits were applied for is not within the KMA. The impugned resolutions cannot, therefore, be interdicted on this ground of challenge.
44. The second ground of challenge is equally without merit. The petitioners are claiming negative equality. It is settled law that while considering the plea of an aggrieved person that he has been subjected to unequal treatment qua another and consequent claim of equal treatment, the Court ought to ascertain whether the treatment extended to the other and the relief granted to him, which is claimed by the person aggrieved, is in accordance with law or not. If an applicant for permit has been issued a permit allowing him to operate his auto rickshaw within the KMA even after issuance of the notification dated August 6, 2004, that could legitimately be branded an illegal act if justification therefor is not made available to the Court; however, the petitioners cannot claim an order from the Court to perpetrate an illegality. This contention also fails.
45. There is no bar in law to apply for a permit on a route that does not attract any of guidelines (1) to (6) of the notification dated January 29, 2010. In normal circumstances, I would have dismissed the writ petitions granting liberty to the petitioners represented by Mr. Das to make fresh applications for permits, for being considered in accordance with law. However, since such petitioners have surrendered their employment exchange cards and in all likelihood have suffered substantial disability, I hold that their applications for permits shall stand revived and they shall be entitled to have their applications reconsidered. The RTA, Nadia shall call upon the petitioners for hearing by June 30, 2014 and enquire from them as to whether they propose to operate their auto rickshaws on any alternative routes not attracting any of the restrictions imposed by the several guidelines contained in the notification dated January 29, 2010. If any or all the petitioners are agreeable to have permits granted in respect of such routes and they comply with other formalities, they may be considered for grant of permits, in accordance with law. If none is so willing, the RTA, Nadia shall be free to reject the applications recording such unwillingness. Additionally, these petitioners shall be free to question post August 6, 2004 grants, whereby permits have been issued in favour of operators to ply their respective auto rickshaws within the KMA in accordance with law, if so advised.
46. The writ petitions [W.P.8537 (W) of 2012, W.P.17749 (W) of 2012, W.P.17751 (W) of 2012, W.P.17753 (W) of 2012, W.P.17755 (W) of 2012, W.P.17757 (W) of 2012, W.P.17784 (W) of 2012, W.P.21111 (W) of 2012, W.P.21115 (W) of 2012, W.P.21117 (W) of 2012 and W.P.21120 (W) of 2012], accordingly, stand disposed of.
47. The petitioner, represented by Mr. Roy, had applied for an auto rickshaw permit on an intra-regional route (Rajmahal to S.D. Hospital) before the Regional Transport Authority, Burdwan (hereafter the RTA, Burdwan). The application was rejected on June 17, 2012 by adopting the following resolution:
"The applicant was present at the time of hearing and was heard. Perused the case record along with the enquiry report. The case is rejected for violation of Notification No. 268-WT/3M-01/2010 Pt. I dated 29.01.2010 as the applied route is covering more than 30% of existing Bus-routes in roads other than NH/SHs."
48. The decision making process leading to rejection of the petitioner's application for permit by the RTA, Burdwan does not appear to be lawful and is, thus, unsustainable. The RTA, Burdwan was discharging quasi-judicial duty while considering the application for permit. It ought to have mentioned in its resolution which particular bus route is sought to be overlapped in excess of 30% by the route on which the petitioner proposed to operate his auto- rickshaw. Certain facts and figures in regard to the length of the route proposed by the petitioner and the alleged existing bus route should have found place in the impugned resolution. In the absence of any such particulars, the Court is left guessing as to how the right of the petitioner could be determined adverse to his interest. I have no other alternative but to set aside the impugned resolution. It is ordered accordingly.
49. The writ petition [W.P. 19227(W) of 2012] stands disposed of with a direction upon the R.T.A., Burdwan to reconsider the petitioner's application in accordance with law without any delay but positively within June 30, 2014. If the petitioner's application is rejected once again, the order must have the support of reasons. On the contrary, if the petitioner's application is granted, follow up steps shall be taken without any delay in accordance with law.
50. Insofar as the petitioners represented by Mr. Sarkar are concerned, they had all applied for intra-regional permits for operating auto rickshaws before the RTA, Nadia. All such applications have been rejected on diverse dates, but with identical resolutions. The identical resolution of the RTA, Nadia adopted while rejecting the applications reads as follows:-
"Heard the applicant. After taken into consideration the road condition, congestion of road traffic and safety and security of the passengers travelling in such 3-wheeled Auto-Rickshaw within the ambit and scope of the Motor Vehicles Act and rules framed thereunder, his application is not granted. (See notification no. 268-WT/3M-01/2010 Pt. dated 29.01.2010)."
51. I have no doubt in my mind that rejection of the petitioners' applications for permits by the RTA, Nadia is arbitrary and that the impugned resolutions are indefensible. Guideline (6) does not restrict grant of permit to operate an auto- rickshaw. What it says is that while granting an auto-rickshaw permit, the permit issuing authority is to consider the road condition, congestion of road traffic, and safety and security of the passengers within the ambit and scope of the MV Act and the rules framed thereunder. There is no discussion in the impugned resolutions with regard to the factors mentioned in guideline (6). While dealing with the applications for permits of each of the petitioners, it was imperative for the RTA, Nadia to indicate with some degree of clarity the impediments standing in the way of grant of permits. The RTA, Nadia could not have simply referred to the factors mentioned in guideline (6) and without anything more, reject an application for permit. Application of mind was necessary, which is conspicuously absent. The impugned resolutions of the RTA, Nadia, thus stand set aside.
52. The writ petitions [W.P.19903 (W) of 2013, W.P.19906 (W) of 2013, W.P.19908 (W) of 2013, W.P.19910 (W) of 2013, and W.P.20957-20963(W) of 2013] stand disposed of with a direction upon the RTA, Nadia to reconsider the petitioners' applications in accordance with law as early as possible, but not beyond June 30, 2014. If any of the petitioners' applications is rejected once again, the order must have the support of reasons. On the contrary, if decisions to grant permits are taken, follow up steps in accordance with law shall not be unduly delayed.
53. Mr. Mukherjee appeared for the petitioners in W.P 7283(W) of 2012, W.P. 8814 (W) of 2012, W.P. 9236(W) of 2012 and W.P. 17633(W) of 2012, which are at the instance of 22 (twenty-two), 38 (thirty-eight), 61 (sixty-one) and 5 (five) petitioners respectively. It appears from the respective writ petitions that all the individual applications of the petitioners for grant of auto rickshaw permits on intra-regional routes in the district of Jalpaiguri have been rejected by the Regional Transport Authority, Jalpaiguri (hereafter the RTA, Jalpaiguri) by referring to the guidelines contained in the notification dated January 29, 2010. In case of some of the petitioners, guidelines (3), (4) and (5) have been invoked whereas in case of some others guideline (6) was considered as a bar for grant of permits. The challenge to the notification dated January 29, 2010 by more than one petitioner in a joint writ petition could be entertained and I have decided the point of legality and/or validity of the same. However, the petitioners are not entitled to move a joint writ petition and question the separate resolutions that were adopted by the RTA, Jalpaiguri while rejecting their respective applications for permits without paying individual court fees. Each of the petitioners has identical but independent cause of action. Their joint writ petition for setting aside the impugned resolutions could have been entertained, if they had paid separate court fees. That is also not the case here. Relying on the decision of the Supreme Court in Mota Singh v. State of Haryana : AIR 1981 SC 484, I hold the joint writ petitions, insofar as they seek to challenge the impugned resolutions rejecting the applications for permits, as not maintainable without payment of individual court fees for each of the several petitioners.
54. These 4 (four) writ petitions [W.P 7283(W) of 2012, W.P. 8814 (W) of 2012, W.P. 9236(W) of 2012 and W.P. 17633(W) of 2012] stand dismissed. However, the liberty of each of the petitioners to question the impugned resolutions by appropriate proceedings in accordance with law is reserved.
55. Insofar as W.P. 20477 (W) of 2013 is concerned, the petitioners seek implementation of the notification dated January 29, 2010. Since the subject matter of this writ petition is different and it has wrongly been clubbed with the batch of writ petitions wherein legality and/or validity of the notification dated January 29, 2010 has been challenged, W.P. 20477 (W) of 2013 stands de-tagged. Presently, I have no determination to hear the same. It is released from my list with liberty to the petitioner to move the appropriate bench having determination to hear it.
56. Urgent certified copy of this judgment and order, if applied for, shall be furnished to the applicant at an early date.
57. Photocopy of this judgment and order, duly counter-signed by the Assistant Court Officer, shall be retained with the files of all other writ petitions barring W.P.19227(W) of 2012.
(DIPANKAR DATTA, J.)