Karnataka High Court
Smt. Kathiza And Others vs The District Magistrate And Deputy ... on 24 November, 1997
Equivalent citations: ILR1998KAR537, 1998(1)KARLJ162
Author: G. Patri Basavana Goud
Bench: R.P. Sethi, G. Patri Basavana Goud
JUDGMENT G. Patri Basavana Goud, J.
1. Writ Appeal Nos. 24 to 27 of 1996 have arisen out of Writ Petition Nos. 17727 to 17730 of 1993 filed respectively by Smt. Kathiza, Sri K. Moidin, Sri K. Moidin and Sri Asraf against the District Magistrate, Dakshina Kannada, Mangalore, and the Regional Transport Authority (RTA), Dakshina Kannada, Mangalore. Petitioners in the said writ petitions had applied for grant of stage carriage permits on certain routes. The RTA by its resolution dated 7-5-1993, rejected their prayer for grant of stage carriage permits taking note of the notification issued by the District Magistrate dated 6-4-1993 under Section 115 of the Motor Vehicles Act, 1988 ('Act' for short) read with Rule 221-A(5) of the Karnataka Motor Vehicles Rules, 1989 ('Rules', for short), restricting further entry of mofussil buses to Hampanakatta area in the city of Mangalore, in pursuance of the permits to be obtained henceforth. Petitioners in the said writ petitions under Article 226 of the Constitution sought quashing of the said resolution of the RTA dated 7-5-1993 and the notification of the District Magistrate dated 6-4-1993, and prayed for a writ of mandamus directing the RTA to grant stage carriage permits as prayed for by the petitioners. Learned Single Judge, by the order dated 29-9-1995 impugned herein, dismissed the said writ petitions.
2. Writ Appeal No. 4273 of 1995 has arisen out of Writ Petition No. 30362 of 1995 filed by M/s. U.S. Travels of Udupi. The said petitioner had filed an application for grant of stage carriage permit, which the RTA granted with certain modifications by its resolution dated 27-7-1994, directing the Secretary to fix the timings in accordance with law. In the meantime, however, the District Magistrate had issued a notification dated 26-7-1994 under Section 115 of the Act read with Rule 221-A(5) of the Rules, restricting entry of the stage carriage in pursuance of the permits to be granted henceforth into the Udupi Bus Stand. The Secretary of RTA, therefore, gave an endorsement dated 14-7-1995 to the petitioner intimating that the permits will be issued and the timing will be assigned excluding the route specified in the said order of the District Magistrate. In the writ petition under Article 226 of the Constitution, M/s. U.S. Travels sought quashing of the notification of the District Magistrate dated 26-7-1994 and the endorsement of the Secretary of the RTA dated 14-7-1995 and directing the said Secretary to issue permit in accordance with the resolution of the RTA dated 27-7-1994.
The grounds urged in support of this writ petition being identical to those that were examined by the learned Single Judge in the above said batch of Writ Petition Nos. 17727 to 17730 of 1993 and connected matters disposed of by him by his order dated 29-9-1995, learned Single Judge held that the view taken in the said batch of writ petitions is applicable on all fours to the said writ petition of M/s. U.S. Travels also. Learned Single Judge accordingly dismissed the said writ petition. The said order is called in question in Writ Appeal No. 4273 of 1995.
3. Mr. Tharanath S. Jathanna, Corporator of the Mangalore City Corporation, filed Writ Petition No. 1300 of 1997 under Article 226 of the Constitution. He sought quashing of the notification issued by the District Magistrate dated 6-12-1990 under Section 115 of the Act restricting entry of stage carriages on the city routes in respect of permits to be issued henceforth to enter into Hampanakatta State Bank area in Mangalore City and sought quashing of another notification of the District Magistrate dated 6-4-1993 issued under Section 115 of the Act read with Rule 221-A(5) of the Rules restricting entry of mofussil services in respect of the permits to be issued henceforth into the said Hampanakatta area, and also challenged the vires of Section 115 of the Act insofar as it enabled the authority concerned to make exceptions. This writ petition having come up before the learned Single Judge on 16-1-1997, the decision of the learned Single Judge as referred to in the abovesaid batch of writ petitions was taken note of and it was also noticed that writ appeals as against the said decision were pending before the Division Bench. Learned Single Judge, therefore, directed this writ petition to be placed before this Division Bench.
4. Before proceeding to consider the questions involved, it would be necessary to extract the relevant provisions of the Act and the rules.
Section 80 of the Act, insofar as it is relevant, reads thus:
"80. Procedure in applying for and granting permits.--(1) An application for a permit of any kind may be made at any time.
(2) A Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of Section 66 shall not ordinarily refuse to grant an application for permit of any kind made at any time under this Act:
Provided that the Regional Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of Section 66 may summarily refuse the application if the grant of any permit in accordance with the application would have the effect of increasing the number of stage carriages as fixed and specified in a notification in the Official Gazette under clause (a) of sub-section (3) of Section 71 or of contract carriages as fixed and specified in a notification in the official gazette under clause (a) of sub-section (3) of Section 74:
Provided further that where a Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of Section 66 refuses an application for grant of a permit of any kind under this Act, it shall give to the applicant in writing its reasons for the refusal of the same and an opportunity of being heard in the matter".
Section 71(3)(a) of the Act reads as follows:
"71. Procedure of Regional Transport Authority in considering application for stage carriage permit.-
(1) XXX XXX XXX.
(2) xxx xxx xxx.
(3) (a) The State Government shall, if so directed by the Central Government having regard to the number of vehicles, road conditions and other relevant matters, by notification in the Official Gazette, direct a State Transport Authority and a Regional Transport Authority to limit the number of stage carriages generally or of any specified type, as may be fixed and specified in the notification, operating on city routes in towns with a population of not less than five lakhs".
Section 115 reads thus:
"115. Power to restrict the use of vehicles.--The State Government or any authority authorised in this behalf by the State Government, if satisfied that it is necessary in the interest of public safety or convenience, or because of the nature of any road or bridge, may by notification in the Official Gazette, prohibit or restrict, subject to such exceptions and conditions as may be specified in the notification, the driving of motor vehicles or of any specified class or description of motor vehicles or the use of trailers either generally in a specified area or on a specified road and when any such prohibition or restriction is imposed, shall cause appropriate traffic signs to be placed or erected under Section 116 at suitable places:
Provided that where any prohibition or restriction under this section is to remain in force for not more than one month, notification thereof in the Official Gazette shall not be necessary, but such local publicity as the circumstances may permit, shall be given of such prohibition or restriction".
Rule 221-A(5) of the Rules as inserted by the Karnataka Motor Vehicles (2nd Amendment) Rules, 1990, reads as under:
"221-A. Power of authorities to restrict speed.-
(1) XXXXXXXXX.
(2) xxxxxxxxx.
(3) xxxxxx xxx.
(4) xxxxxxxxx.
(5) The Commissioner of Police in the City, of Bangalore and elsewhere the District Magistrate shall be competent under Section 115 of the Act to prohibit or restrict the driving of motor vehicles of any specified class of motor vehicles or the use of trailers".
5. Learned Counsel for the appellants/petitioner urge the following: (1) The remedial measures that needed to be taken in the circumstances leading to issuance of two notifications dated 6-12-1990 and 6-4-1993, could have been taken only under Section 71(3)(a) and not under Section 115 of the Act and that too by the State Government on being so directed by the Central Government, and, further, even the said Section 71(3)(a) could not be resorted to for the reason that the population of either Mangalore or Udupi was less than 5 lakhs.
(2) Section 115 of the Act permits prohibition or restriction of the driving of a class of motor vehicles. The said section does not permit prohibiting or restricting driving of only some of the vehicles of a particular class while no such restriction is imposed on other vehicles of the same class already plying before the date of the said notification.
(3) If Section 115 is read as so permitting prohibition/restriction of only some of the stage carriages and not other stage carriages, all of which belong to one class, then, to the extent the said Section 115 provides for making exceptions to this effect, it is violative of Article 14 of the Constitution, inasmuch as, some operators of the stage carriages obtaining permits subsequent to the date of the said notifications stand discriminated against vis-a-vis those operators who had obtained permits prior to the said dates.
(4) Section 115 of the Act is violative of Article 19(1)(g) of the Constitution since the arbitrary or excessive and unguided power given to the authority thereunder to impose prohibition/restriction is not a reasonable restriction within the meaning of Article 19(6) of the Constitution.
(5) Since, as given expression to by the Supreme Court in Mithilesh Garg v Union of India, the policy underlying the granting of permits for stage carriages is a liberal one unlike restricted one under the old Act of 1939, the very policy stands defeated by the RTA not adopting such a liberal attitude taking shelter under the notifications under Section 115 of the Act.
(6) Even if Section 115 of the Act is held valid, exercise of the power thereunder needs to be done periodically and not that a notification issued thereunder should hold the field permanently.
(7) The notifications issued under Section 115 are bad for the reason that the District Magistrate who issued the said orders also happens to be the Chairman of the RTA.
(8) Notifications are bad for the reason that they are issued at the instance of the existing operators whose interests are safeguarded.
6. Learned Counsel for the appellants/writ petitioner are right in contending that the policy of granting permits for stage carriages as expressed in the Act is far liberal as compared to the one existing in the old Act of 1939. They are also right in contending that while the existing operators would put forth every obstacle in fresh competition coming from new applicants, the said obstacles need to be ignored by the RTA. We need only refer to the observations of the Supreme Court in this regard in the case of Mithilesh Garg, supra. On a comparison of the provisions of the 1939 Act and of the present Act, the Supreme Court observed in Paragraph 7 of the judgment as follows:
".....As mentioned above the petitioners are permit holders and are existing operators. They are plying their vehicles on the routes assigned to them under the permits. They are in the full enjoyment of their fundamental right guaranteed to them under Article 19(1)(g) of the Constitution of India. There is no threat of any kind whatsoever from any authority to the enjoyment of their right to carry on the occupation of transport operators. There is no complaint of infringement of any of their statutory rights. Their only effort is to stop the new operators from coming in the field as competitors. We see no justification in the petitioners' stand. More operators mean healthy competition and efficient transport system. Overcrowded buses, passengers standing in the aisle, clinging to the bus-doors and even sitting on the roof-tops, are some of the common sights in this country. More often one finds a bus which has noisy engine, old upholstery, uncomfortable seats and continuous emission of black smoke from the exhaust pipe. It is, therefore, necessary that there should be plenty of operators on every route to provide ample choice to the commuter-public to board the vehicle of their choice and patronise the operator who is providing the best service. Even otherwise the liberal policy is likely to help in the elimination of corruption and favouritism in the process of granting permits. Restricted licensing under the old Act led to the concentration of business in the hands of few persons thereby giving rise to a kind of monopoly, adversely affecting the public interest. The apprehensions of the petitioners that too many operators on a route are likely to affect adversely the interest of weaker section of the profession is without any basis. The transport business is bound to be ironed-out ultimately by the rationale of demand and supply. Cost of a vehicle being as it is the business requires huge investment. The intending operators are likely to be conscious of the economics underlying the profession. Only such number of vehicles would finally remain in operation on a particular route as are economically viable. In any case the transport system in a State is meant for the benefit and convenience of the public. The policy to grant permits liberally under the Act is directed towards the said goal. The petitioners who are already in the business want to keep the fresh entrants out of it and as such eliminate the healthy competition which is necessary to bring efficiency in the trade".
The Supreme Court then held in Paragraph 9 thus:
"9. We, therefore, see no justification for the petitioners to complain against the liberalised policy for grant of permits under the Act".
7.1 It is in the light of liberalised policy in granting of stage carriage permits as emphasised by the Supreme Court in the above said decision that the present matter in controversy needs to be examined. There is an area called Hampanakatta area which is also referred to as Hampanakatta-State Bank area in the city of Mangalore. By a notification dated 6-12-1990 under Section 115 of the Act read with Rule 221-A(5) of the Rules, the District Magistrate, Dakshina Kannada, Mangalore restricted the plying of city buses for which fresh permits are to be granted henceforth from entering into the said Hampanakatta area. By another notification under the said provision issued on 6-4-1993, the District Magistrate prohibited mofussil buses also under the permits to be granted henceforth from entering into the said Hampanakatta area. By these notifications, the city buses passing through Hampanakatta area under the permits granted prior to 6-4-1993 were continued to be permitted to so pass through Hampanakatta area. The background in which the said restrictions were imposed in respect of city buses and mofussil services under the newly granted permits is this: A survey of vehicular traffic at Hampanakatta point and nearby roads was undertaken. It indicated that during peak hours, about 156 vehicles per minute between 9 a.m. and 10 a.m., 147 vehicles per minute between 10 a.m. and 11 a.m., and 147 vehicles per minute from 11 a.m. and 12 noon pass the Hampanakatta point, of which about 13 are buses which pass through every minute during the said hours. At the traffic signal point that is manually operated there, it would take at least four minutes to change traffic signal resulting in heavy traffic congestion at any point of time. Roads nearby the signal point are not enough to hold this kind of heavy traffic. From 374 permits granted for the mofussil services till then, 1506 bus trips were being made per day affecting the said Hampanakatta area, whereas from 206 city bus permits granted till then, 2002 bus trips were touching Hampanakatta area every day. During peak hours, Hampanakatta Signal Point witnessed heavy traffic movement resulting in traffic congestion, so much so that the said congestion lead to blocking of traffic to the nearby Wenlock Hospital also. In addition, there was air and noise pollution posing health hazards due to high vehicular traffic. The proposal of shifting the bus stand for which City Municipal Corporation had taken a decision in the year 1990 was yet to be implemented. Situation could not any further be allowed to deteriorate in the Hampanakatta area. Hence the decision to restrict entry into Hampanakatta area of stage carriages in respect of any fresh permits to be granted.
7.2 The notification dated 26-7-1994 issued by the District Magistrate under Section 115 of the Act in respect of Udupi, is concerned in Writ Appeal No. 4273 of 1995, would indicate the position thus insofar as the restricted area of Udupi Bus Stand is concerned: There was a report of the Superintendent of Police, Dakshina Kannada, Mangalore. The RTO of Udupi had also submitted a report after survey of Udupi Bus Stand and neighbourhood roads. There was no space for parking the vehicles in the bus stand concerned and there was increased vehicular traffic in the neighbourhood roads. It had therefore become impossible to control the said traffic resulting in more and more accidents. Hence the decision to restrict entry of vehicles under the new permits into the said Udupi Bus Stand and the neighbourhood roads.
7.3 Relying upon a decision of the Supreme Court in Hari Om Gautam v District Magistrate, Mathura, learned Counsel for the appellants/writ petitioner urged that in the notifications concerned, bus stands are also fixed by the District Magistrate whereas in facts the said power vested in RTA. Bus stands are not fixed in the said notifications. The object sought to be achieved in issuing these notifications is to restrict entry of vehicles under the new permits into Hampanakatta area in Mangalore city and into Udupi Bus Stand and the neighbourhood roads in Udupi town. To achieve this object, it was also necessary for the District Magistrate to mention in the notifications as to what point away from Hampanakatta area/Udupi Bus Stand the said new buses had to stop in order to comply with the said restrictions imposed. It is these particulars that are specifically mentioned in the notifications.
7.4 Once these notifications were issued under Section 115 of the Act, the RTA decided to issue fresh permits or decided to refuse permits depending upon whether the route asked for passed through Hampanakatta area/Udupi Bus Stand and the neighbouring roads. Accordingly, resolutions were passed, which resolutions also are challenged in writ petitions giving rise to these appeals and which challenge was negatived by the learned Single Judge.
7.5 It is no doubt true, as observed by the Supreme Court, that the liberalised policy of granting stage carriage permits under the Act requires RTA not to take anything into consideration, that is not relevant for the said purpose of granting permits and particularly not to consider the objections from vested interests such as the existing operators, But no exception could be taken to the RTA taking due note of the arrangement made by the District Magistrate under Section 115 of the Act so far as a particular area is concerned. Grievance that is being made out by the appellants/writ petitioner is as though permits are denied for routes touching over large areas. It is not so. All that the applicants were made aware of was that since no more vehicles can be permitted to enter Hampanakatta area and Udupi Bus Stand area, no purpose will be served by issuing permits to cover that area because even if any permits are issued, the vehicles cannot enter into the said areas by virtue of the notifications issued by the District Magistrate under Section 115 of the Act.
7.6 Paramount consideration for the District Magistrate to act under Section 115 of the Act is 'public safety or convenience' or the nature of roads or bridge. If, on these considerations, the District Magistrate decides that no vehicular traffic should be allowed in a particular area, he could prohibit the entire vehicular traffic in that area which would include those stage carriages in respect of which valid permits were issued by the RTA even prior to the day the said notifications were issued. For example, if as on a particular day, having regard to public safety, convenience, nature of road, etc., in the Hampanakatta area, the District Magistrate had decided that not even a single stage carriage could be allowed to pass through Hampanakatta area, then, he could have issued such a notification, the result of which would have been that even the stage carriages in respect of which permits had already been issued till then by the RTA and which stage carriages were passing through Hampanakatta area in accordance with the said permits till that date, would still be barred from entering into that area by virtue of the said notification under Section 115 of the Act. The said Section 115 of the Act thus would operate notwithstanding the valid permit issued by the RTA insofar as the area covered by the notification under Section 115 of the Act is concerned. If this could be the position in respect of stage carriages already plying as on the date of the notification under Section 115 of the Act, then, there is nothing wrong in the RTA talcing note of the notification under Section 115 and telling the future applicants that any grant of permits to cover the restricted area would be futile for the reason that even if any such permit is granted, the vehicle/s cannot move into the area prohibited under Section 115 of the Act. In such a situation there is nothing wrong for the RTA declining to grant permits in respect of the prohibited areas. By so declining, there is no clash with the liberalised policy of granting permits under the Act as enunciated by the Supreme court in Mithilesh Garg's case, supra, referred to earlier. The validity of the notifications under Section 115 of the Act concerned herein and the vires of Section 115 of the Act therefore need to be examined without reference to the said liberalised policy.
8. The attack on the notifications under Section 115 of the Act concerned herein on the ground that they are issued at the behest of existing operators must fail for the reason that, as already noticed, it was on the basis of existing situation in Hampanakatta area/Udupi Bus Stand area as made out by the traffic survey reports that led the District Magistrate to decide that any further entry into the said area would be in the interest of neither public safety nor public convenience. A situation had reached in the said areas as indicated in the survey reports concerned which forced the District Magistrate to take remedial measures in terms of Section 115 of the Act. The District Magistrate, therefore, solely in the interest of public safety and convenience and because of the nature of roads in the area concerned, decided that any further entry of new stage carriages into the said areas would be detrimental to the public safety/convenience. In addition to the survey reports, if there were also representations from the existing bus operators, there is not even an indication in the two notifications to the effect that the considerations that weighed with the District Magistrate in issuing the notifications concerned were other than the public safety and convenience and that it was in the interest of existing operators that weighed with him. When the District Magistrate bases his conclusion on the traffic survey reports, reference to the representations of bus operators in the notifications is only incidental, and, has in no way affected the decision making process. It, therefore, cannot be said that the notifications were issued at the behest of or to protect the interest of the existing bus operators.
9. It was urged on behalf of the appellants/writ petitioner that the District Magistrate who issued the notifications under Section 115 of the Act also happens to be the Chairman of the RTA, and, as such, any decision making process by the RTA necessarily stood affected by any decision taken by the District Magistrate under Section 115 of the Act. Learned Counsel in this context refer to a decision of the Supreme Court in A.K. Kraipak and Others v Union of India . The facts in the said case were these. In pursuance of the regulations framed under the Indian Forest Service (Recruitment) Rules and the All India Services Act, 1951, a Special Selection Board had been constituted for selecting officers to the Indian Forest Service in the senior and junior scales from officers serving in the Forest Department of the State of Jammu and Kashmir. One of the members of the Board had to be the Chief Conservator of Forests. At the relevant point of time, the said Chief Conservator happened to be an acting Chief Conservator who had superseded another Conservator of Forests whose appeal against supersession was pending before the State Government at the time the Board was making selection. In addition, the said acting Chief Conservator was also one of the candidates seeking to be selected to the Indian Forest Service. He did not sit in the Selection Board at the time his name was being considered, but participated in the deliberations when the names of his rivals were being considered, and, he also had participated while preparing the list of selected candidates in order of preference. The Supreme Court pointed out that there was a conflict between his interest and duty and he was a judge in his own cause. The Supreme Court observed that taking into consideration the human probabilities and the ordinary course of human conduct, there was reasonable ground for believing that the acting Chief Conservator was likely to have been biased, and, that in judging the suitability of the candidates, the Members of the Board must have had mutual discussions, and in group discussion each member was bound to influence the other in a subtle manner and without their being aware of such influence.
Pressing into service the above said decision of the Supreme Court in the present context can hardly be justified. The incumbent of the office of the District Magistrate and the Chairman of the RTA of the Dakshina Kannada at the time relevant notifications were issued and the relevant resolutions were passed, is not shown to have had any personal interest in the matter. It is also found that he was not acting at the behest of or to protect the interest of the existing operators. His decision was based on the existing situation of Hampanakatta area/Udupi Bus Stand area vis-a-vis public safety and convenience. Even otherwise, as we have pointed out earlier, there was nothing wrong on the part of the RTA to have taken due note of the area restricted for vehicular traffic under Section 115 of the Act while granting fresh permits. In the circumstances, therefore, the grievance of the appellants/writ petitioners in this regard is unwarranted.
10.1 Sri Putige Ramesh, learned Counsel for the appellants, urges the following: To meet the situation like the one concerned herein, the appropriate provision was Section 71(3)(a) of the Act and not Section 115. Even the said Section 71(3)(a) could not be resorted to for the reason that the population of either Mangalore city or Udupi town is less than 5 lakhs.
10.2 As extracted earlier, Section 71(3)(a) inter alia provides for the State Government, if so directed by the Central Government, to limit the number of stage carriages operating on the city routes in towns with population of not less than 5 lakhs, having regard to the number of vehicles, road condition and other relevant matters. Section 72(1) of the Act inter alia provides that stage carriage permits may be granted subject to the above said provisions of Section 71.
10.3 Reference to Section 71(3)(a) in the present context is inappropriate. Section 71 occurs in Chapter V of the Act relating to control of Transport Vehicles. The said chapter does not deal with the vehicles other than the transport vehicles i.e., vehicles for carrying either passengers or goods. The said chapter relates to the necessity of obtaining permits for plying all such vehicles, considerations relevant for granting or refusing permits, procedure for applying for grant of permits, etc. It is in course of these provisions in the said Chapter V that Section 71(3)(a) provides for the Central Government to direct the State Government to limit the number of stage carriages in a particular city of the population not less than 5 lakhs, having regard to the number of vehicles, road conditions, etc. Any grant of permit is to be done subject to these restrictions under Section 71. Here we are concerned with a particular place in Mangalore City, namely Hampanakatta area, and a particular area in Udupi town, namely the Bus Stand area and neighbouring roads, wherein the traffic survey reports have indicated that the conditions will go chaotic unless remedial measures are taken. As noticed earlier as to the kind of vehicular traffic therein, capacity of the existing traffic system there and the tremendous inconvenience that the members of public are put to in that area, it is absolutely clear that the situation cannot be allowed to further deteriorate. On the admission of the learned Counsel Sri Putige Ramesh himself, Section 71(3)(a) cannot be resorted to even if the Central Government and the State Government want to do, because the population is less than 5 lakhs. Limit under Section 71(3)(a) is also inappropriate for the reason that, that is a limit that has to be taken note of by the RTA or STA in the matter of granting future permits and to limit granting of permits to the number that is determined under Section 71(3)(a). Limiting of the said number under Section 71(3)(a) would only be in respect of stage carriages and not motor vehicles of any other description. Supposing, in the Hampanakatta area of Mangalore city, driving of not merely the stage carriages but also the other vehicles are required to be prohibited or restricted, then in that case, Section 71(3)(a) has obviously no application even if the Central Government desires to do something in the matter. Going further, supposing, in a place outside any city limit without reference to its population, a bridge is so weak that it is necessary to prohibit driving of heavy vehicles thereon. Even then, Section 71(3)(a) has obviously no application. The question that then arises is as to whether the authorities are so helpless as not to be able to prevent either the chaotic condition in an area like Hampanakatta or to prevent collapse of the bridge that is found so weak. Section 115 of the Act, however, does not render the authorities so helpless. It is of significance that while Section 71(3)(a) as stated earlier occurs in Chapter V relating to control of transport vehicles. Section 115 occurs in Chapter VIII dealing with control of traffic. Thus, to deal with the situation that has arisen in Hampanakatta area in Mangalore city or Udupi Bus Stand and nearby area of Udupi, it is the control of traffic that is called for. Such a control of traffic could be in respect of all vehicles or in respect of only some of the vehicles; it could be in respect of all classes of vehicles or in respect of only some class or classes of vehicles; it could be in respect of only some of the vehicles in a particular class and not in respect of remaining of the vehicles of that particular class. Any decision in this regard shall have to be taken with due regard to public safety or convenience or the nature of road or the nature of bridge in respect of an area where the traffic is required to be controlled, and, this has to be done by the District Magistrate under Section 115 of the Act read with Rule 221-A(5) of the Rules. Reference to Section 71(3)(a) is, therefore, inappropriate and it is only Section 115 of the Act which governs such a situation.
11.1 Learned Counsel for the appellants/writ petitioner urged firstly that Section 115 provides for prohibiting/restricting driving of a class of vehicles and not some among a particular class, leaving other vehicles of the same class untouched. Before proceeding to examine this aspect with reference to the wording of Section 115, it may be pointed out that among the considerations relevant for taking a decision under Section 115 of the Act, one consideration is convenience. Argument of the learned Counsel for the appellants/petitioner is that if the conditions prevailing in Hampanakatta area are such as to prohibit plying of stage carriages, it ought to be in respect of all stage carriages and not only some of stage carriages. There may be a situation wherein plying of vehicles of a particular class may be prohibited. For example, as noticed earlier, if a bridge is so weak as not to be able to bear the load of any heavy vehicle, plying of all heavy vehicles had to be necessarily prohibited. But, in a place like Hampanakatta, it is not a question of prohibiting plying of all vehicles or a particular class or classes of vehicles. Hampanakatta area is admittedly a busy commercial locality. It is also necessary to enable the members of public to reach that area. Therefore, permitting plying of a certain number of stage carriages may be necessary, as otherwise it amounts to causing inconvenience to the said members of public. Then, the question will arise as to where should a line be drawn in respect of stage carriages to be permitted. It is in this context that the District Magistrate has decided that stage carriages plying at present under the permits obtained till then would suffice and the area can take no more stage carriages. It was in this context that he chose the cut off date for preventing stage carriages in respect of which permits are to be obtained henceforth from entering into Hampanakatta area. Having regard to the situation in Hampanakatta, it is like the District Magistrate saying thus far and no further. In the circumstances, therefore, where the predominant consideration in taking a decision under Section 115 of the Act insofar as the present notifications are concerned, is the 'convenience' of the members of public, it meant not only that chaotic conditions by unlimited number of stage carriages entering into the area needed to be avoided, but also that the members of public ought to be provided with certain number of stage carriages which the area could accommodate without inconvenience so as to facilitate the said members of public to reach that area. The decision of the District Magistrate to thus prohibit only certain vehicles of a particular class, at the same time not affecting certain other vehicles of the same class, by issuing two notifications concerned, cannot be found fault with.
11.2 We may then look to the wording of Section 115 of the Act to appreciate the contention of the learned Counsel for the appellant/writ petitioner, namely that Section 115 permits prohibiting/restricting driving of motor vehicles of a particular class and not some vehicles of that particular class without affecting other vehicles of that particular class. Section 115 is already extracted earlier. It inter alia provides that prohibiting/restricting driving of motor vehicles of any specified class or description in a specified area or on a specified road. Such restriction could be for less than a month or for more than a month as indicated in the proviso to Section 115. Where a particular class of motor vehicles as specified in the notification is prohibited/restricted, that is a different matter. But Section 115 also enables the authority concerned to make exceptions. It says that subject to exceptions and conditions as may be specified in the notification, the driving of any specified class of motor vehicles may be prohibited/restricted. If it was contemplated by the legislature that the entire class specified in the notification is to be prohibited/restricted and that a certain number of vehicles of that particular class should not be saved from the rigour of the notification, then, there was no necessity for providing in the said Section 115 that such prohibition or restriction could be subject to such exceptions, as may be specified in the notification. The very fact that the authority is authorised to make exceptions even where a particular class of vehicles specified in the notification is subjected to the rigour of the notification, it is evident that making of exceptions even among vehicles of the same class is permissible. From the practical point of view, making of such exceptions becomes necessary also. For example, taking Hampanakatta area as an illustration, if the entire class of stage carriages is to be subjected to the rigour of the notification, it would defeat the very object of taking action under Section 115 of the Act because convenience is one of the relevant factors for the remedial measures to be taken under Section 115, and preventing the entire class of stage carriages from entering into Hampanakatta area would serve exactly the opposite purpose causing tremendous inconvenience to the members of public. Because that area takes only limited number of vehicles and because it has become necessary to restrict the entry of further vehicles into that area, the District Magistrate not only had to restrict any more motor vehicles or any class of motor vehicles further entering into that area, but, also had to look to the convenience of the members of the public necessarily going into that area. Therefore, he chose to prohibit entry of only certain number of stage carriages, namely, those in respect of which permits are to be obtained henceforth, while permitting plying of stage carriages already plying as on that date, in addition to permitting plying of other class or classes of vehicles. Thus, not only that Section 115 permitted such exceptions being made, but it was also from the practical point of view necessary for the District Magistrate to make such exceptions for the sake of convenience of the members of the public which was one of the paramount considerations for exercise of power under Section 115 of the Act.
12.1 Learned Counsel for the appellants urged that if exception is thus held to be permissible under Section 115, then, to the extent Section 115 provides for such exception, it is violative of Article 14 of the Constitution inasmuch as, the new operators are discriminated against as compared to the old operators. It is also urged that the power under Section 115 is unguided. It is next urged that the appellants' right to practice their profession of undertaking transport business as guaranteed under Article 19(1)(g) of the Constitution, has stood affected by the issuance of the two notifications concerned, inasmuch as the restrictions thereunder in respect of the appellants' enjoyment of the said right under Article 19(1)(g) of the Constitution, are arbitrary and excessive, and, therefore, cannot be called reasonable restrictions within the meaning of Article 19(6) of the Constitution.
12.2. We may refer to certain decisions relied upon by the learned Counsel for the appellants in this regard.
(a) In State of Karnataka v Noble Saint Education Society, a Division Bench of this Court, while dealing with Grant-in-Code, observed in the context of Rule 9(ii) of the Code relating to starting of a new institution having the effect of creating unhealthy competition with the existing institutions of the same category in the neighbourhood, that the fact that there is already one institution imparting good education should not be a ground to refuse permission to another institution, and that the purpose of Rule 9(ii) cannot be to create monopoly in the existing institution. But, if the newly started institution is not able to provide for imparting good education, this Court observed, it was bound to be closed for want of patronage, and that there was no reason to deny the operation of the principle governing the market economy to such a situation. This Court observed that it was a well known fact that the State requires more educational institutions and the State is not able to create more educational institutions, and that, therefore, private venture in the field of education should be welcomed rather than discouraged.
The above said observations would hardly be applicable to a situation like the one that the District Magistrate was required to meet wherein, unless further vehicular traffic was prevented, the situation would go chaotic, but, at the same time, it was necessary for him to take care of the convenience of the members of public and to provide for plying certain number of stage carriages in such a prohibited area. To do so, he had to draw a line. He chose to draw that line taking the date of the notification as the demarcating line. For such a situation, the observation of this Court in the matter of starting of new educational institutions cannot be appropriately brought into focus. What this Court has said in the above said decision in relation to the principle governing 'market economy' applying to a situation where more and more educational institutions are permitted to be started in a particular neighbourhood, the Supreme Court deferred to the very principle when the existing operators questioned the liberal policy of the Motor Vehicles Act, 1988 in the matter of granting permits. As noticed earlier, the Supreme Court emphasised the eventual ironing out of the transport industiy on the rationale of demand and supply. That is how the RTA has to look at the matter when it deals with granting of permits under Chapter V of the Act. The said principle, has, however no application in the matter of controlling the traffic under Chapter VIII of the Act.
(b) Learned Counsel for the appellants referred to a decision of the Supreme Court in Motor General Traders v State of Andhra Pradesh, while dealing with the challenge to the Constitutional validity of Section 32(b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 on the ground that it violated Article 14 of the Constitution, the Supreme Court observed that under the said provision, the landlords' buildings constructed subsequent to 26-8-1957 had been given undue preference over the landlords' buildings constructed prior to that date, in that, the former were free from the shackles of the Act while the latter were subjected to the restrictions imposed by it, and that what should have been just an incentive had become a permanent bonanza in favour of those who constructed buildings subsequent to 26-8-1957. Section 32(b) was struck down and it was found that the said clause was not so inextricably bound up with the rest of the Act as to make the rest of the Act unworkable after it was struck down.
In the light of this decision, learned Counsel for the appellants, Sri Putige Ramesh submits that the restrictions in respect of new bus operators have become a permanent bonanza in favour of the existing bus operators in view of the two notifications issued under Section 115 of the Act. The District Magistrate has to take some remedial measures to ease the situation in Hampanakatta area in Mangalore City and the Bus Stand in Udupi. Taking of remedial measures under Section 115 of the Act in the process of taking traffic control measures under Chapter VIII of the Act can never be held to be permanent. The very proviso to Section 115 of the Act contemplates making any such arrangement even for a period less than a month. It is a clear indication of the fact that any arrangement made under Section 115 is required to be for a limited period, with the necessity of the authority concerned being required to review the position periodically. Though the period during which notifications concerned are to remain in force is not indicated, the very scheme of Chapter VIII in general and Section 115 in particular, specially in the light of the proviso to Section 115, would make it clear that the traffic control measures taken thereunder are meant to be temporary, and required to be reviewed periodically. The District Magistrate himself has referred to one of the circumstances leading to issuance of notifications as being shifting of the bus stand as contemplated by the City Municipal Corporation of Mangalore city as decided way back in 1990, still not yet having been implemented. Thus, when the District Magistrate reviews the position periodically, several factors may emerge such as improvement in the road conditions, shifting of the bus stand as proposed by the City Municipal Corporation, change of emphasis in the commercial importance of Hampanakatta area, etc. There are thus, several relevant considerations that the District Magistrate may come across whenever a decision is to be reviewed that may change the position. In that context, he may also examine as to whether the existing operators have taken monopolistic view of the matter and have been acting detrimental to the interests of the members of public whether by extracting excessive fare or by failing to provide necessary facilities such as providing comfortable vehicles, etc. It is not possible to make an exhaustive list of these and several other considerations that the District Magistrate has to examine. Therefore, it is not a permanent bonanza to the existing operators. As and when a review takes place, certain decisions adverse to the existing operators may also be taken or the area may be thrown open to the fresh stage carriages.
(c) The next decision relied upon by the learned Counsel for the appellants is Corporation of Calcutta v Calcutta Tramways Company Limited, Calcutta. The Supreme Court was considering Section 437(1)(b) of the Calcutta Municipal Act, 1951 making the opinion of the Municipal Corporation conclusive and not justiciable on the question as to when any such opinion of the Corporation could be called dangerous to life or property, etc. In respect of the premises being used by the Calcutta Tramways Company as transformer house, the Municipal Corporation opined that it was dangerous to life, health and property, and, therefore, the Calcutta Tramways Company was required to take licence under the said Section 437(1)(b) of the Calcutta Municipal Act, 1951. The Supreme Court held the said provision, namely Section 437(1)(b) which so made the opinion of the Corporation conclusive and non-justiciable, as having unreasonably restricted the fundamental right enshrined under Article 19(1)(g) of the Constitution and therefore unconstitutional. The Supreme Court held the said restriction as not a reasonable restriction within the meaning of Article 19(6) of the Constitution.
It is the contention of the learned Counsel for the appellants that the notification concerned barring new operators to carry on their profession of transport undertaking in two areas concerned, is an unreasonable restriction not saved by Article 19(6) of the Constitution and as such is violative of Article 19(1)(g) of the Constitution. As discussed earlier, all that is done under the notifications is to prohibit stage carriages under the permits to be obtained henceforth to enter into the two areas concerned. They are very small areas and prohibiting further transport vehicular traffic, particularly passenger vehicular traffic, was absolutely essential for the sake of convenience of the members of public. That in no way affects the appellants' right to obtain permits under Chapter V of the Act in respect of all other areas and routes. Such restrictions are absolutely necessary in the circumstances contemplated under Section 115 of the Act. Restrictions, therefore, can hardly be called either affecting fundamental right of the appellants in carrying on their profession under Article 19(1)(g) of the Constitution nor can it be called unreasonable so as not to fit into Article 19(6) of the Constitution.
(d) Learned Counsel for the appellants next referred to Ram Dial v State of Punjab. There were two provisions of the Punjab Municipalities Act, 1911 that the Supreme Court was considering therein. Section 14(e) enabled the State Government, for any reason which it may deem affecting the public interest, to direct a seat of the specified member elected or appointed to the Municipal Council to have fallen vacant on a particular date. Section 16 was another provision which gave such power to the State Government, for removing any member of the Municipal Committee for reasons specified in clauses (a) to (g) of sub-section (1) of Section 16. All these circumstances could also be brought within the purview of the abovesaid Section 14(e). Nevertheless, while Section 16(1) provided an opportunity to the member concerned of being heard, no such opportunity needed to be given to the member concerned if action were to be taken under Section 14(e). The Supreme Court, therefore, held that there was a clear discrimination in view of Article 14 of the Constitution. In addition, his Lordship Mudholkar, J., in concurring but by a separate judgment, held that the power which was conferred upon the State Government under the said Section 14(e), insofar as it enabled the Government to deem any reason as one to affect the public interest, would extend to matters which may not be in public interest also, and that the said power being unguided was unconstitutional as being violative of Article 14 of the Constitution.
Learned Counsel for the appellants in this context refers to two provisions of Section 71(3)(a) and Section 115 of the Act. If both the provisions were to apply to the given situation, learned Counsel could have pressed this decision into service. It is not so. As noticed earlier, to the situation on hand, Section 71(3)(a) is totally inapplicable. The only provision applicable is Section 115. The question of affording opportunity of being heard to the future operators does not arise because the decision in respect of Section 115 relates to taking remedial measures for the existing situation rather than affecting the rights, if any, of future operators.
(e) The Punjab High Court was considering the constitutional validity of Section 2 of the East Punjab Moveable Property (Requisitioning) Act, 1947 in Khan Chand Mool Chand v State of Punjab . The said Section 2 was held violative of Article 14 of the Constitution since it was not severable from the rest of the Act and that all other provisions being merely ancillary to Sections 2 and 3, the entire Act was held unconstitutional and void. This was questioned by the State of Punjab in State of Punjab v Khan Chand. The said Section 2 of the Act concerned enabled the State Government to requisition any moveable property if it considered it necessary and expedient so to do, the only exception made being the properties used for the purpose of religious worship, aircraft, or anything forming part of an aircraft or connected with the operation, repair or maintenance of aircraft. Sub-section (2) of Section 2 enabled the State Government to make use of or deal with the property so requisitioned in such manner as it may appear to it to be expedient. In respect of this provision, the Punjab High Court in the above said Khan Chand's case, supra, in Paragraph 13 of the judgment, held that it was unconstitutional and violative of rule of law on account of its involving excessive delegation of unfettered and unguided powers to the executive to interfere with the property rights of the citizens in an arbitrary manner and that the Act did not lay down any principle or policy for guiding in any manner the exercise of wide discretion conferred by it on the executive authorities. The High Court also observed that the Act did not require the authority to apply its mind to the nature of the purpose for which it was necessary or expedient to requisition a particular thing, and that even if the authority applied its mind to that proposition, there was nothing in the Act which could guide him to a decision as to the propriety or legality of taking the intended action. The Supreme Court agreed with this view of the Punjab High Court. The Supreme Court observed in Paragraph 6 of the judgment in Khan Chand's case, supra, that the power conferred under the Act can be exercised not only by the State Government but also by the officers to whom it may be delegated by the State Government, that there was nothing in the Act that the officer to whom the powers under the Act can be delegated must not be below a particular rank, the result being that the powers of requisitioning a moveable property which are of a most comprehensive nature, can be conferred even upon a petty officer, that no suitable machinery was also provided in the Act for determining the compensation payable to the owner of the movable property nor did the Act contain any guiding principles for determining the amount of compensation. Further, in Paragraph 7, his Lordship Khanna, J., observed that the drastic and unusual features of the Act, as pointed above, highlighted the fact that the Act conferred arbitrary powers for requisitioning of moveable property upon the authorities under the Act and that no guidelines whatsoever had been prescribed for the exercise of the powers of requisitioning. The total absence of guidelines for the exercise of the said power, his Lordship observed speaking for the majority, has vitiated Section 2 of the Act. His Lordship observed that arbitrariness and the power to discriminate were writ large on the face of the said provision of the Act, namely Section 2, and that it fell within the mischief which Article 14 of the Constitution was designed to prevent, and that though it was a pre-constitutional enactment, Article 31(5) of the Constitution (since omitted) gave no immunity from the attack on the ground of violation of Article 14 of the Constitution.
Learned Counsel for the appellants/writ petitioner, relying upon these two decisions, seek to draw similarity in respect of Section 115 of the Act. We find it difficult to place Section 115 of the Act and Section 2 of the East Punjab Movable Property (Requisitioning) Act, 1947 with which the Punjab High Court and the Supreme Court were dealing with, on the same footing. Power under Section 115 can be exercised either by the State Government or by an authority authorised in that behalf by the State Government. Rule 221-A(5) of the Rules insofar as Mangalore and Udupi are concerned, authorised only the District Magistrate of the Dakshina Kannada to exercise the said power under Section 115. The District Magistrate is not a petty officer. The power conferred by Section 115 of the Act is not excessive or arbitrary or unguided. Definite guidelines are provided therein, namely that the said power could be exercised only if the authority is satisfied that it is necessary in the interest of public safety or convenience or because of the nature of road or bridge. There is no scope for arbitrariness also inasmuch as, the power having been vested with a responsible officer like the District Magistrate, any decision reached by him in this regard would in the light of his experience as such District Magistrate on the aspects of public safety, convenience, nature of road or bridge. The power is not excessive inasmuch as it has provided for either prohibiting or restricting driving of only as many vehicles as are necessary having regard to public safety, convenience, nature of the road or the bridge. The arrangement also is not meant to be a permanent one, enough indication in this regard having been given in the proviso to Section 115. In the circumstances, the said two decisions can hardly be pressed into service with regard to Section 115 of the Act.
(f) Learned Counsel for the appellants/writ petitioner then referred to a decision of the Supreme Court in Dwaraka Prasad Laxmi Narain v State of Uttar Pradesh. The constitutional validity of the Coal Control Order, 1953 had been assailed before the Supreme Court under Article 32 of the Constitution by the petitioners who had been doing business in coal. The Supreme Court observed that the phrase "reasonable restriction" in Article 19(6) of the Constitution connotes that the limitation imposed upon a person in enjoyment of a right should not be arbitrary or of an excessive nature beyond what is required in the interest of public, and that the Legislation, which arbitrarily or excessively invaded the right cannot be said to contain the quality of reasonableness and unless it strikes a balance between the freedom guaranteed under Article 19(1)(g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in reasonableness. A law or order, therefore, which conferred arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business in normally available commodities, the Supreme Court observed, cannot but be held to be unreasonable.
As discussed earlier, a notification under Section 115 prohibits/restricts movement of stage carriages in a small specified area. It could be Hampanakatta in Mangalore; it could be Bus Stand and neighbouring areas in Udupi; it could be a weak bridge on a road at another place. Resorting to Section 115 of the Act is thus a small measure towards control of traffic under Chapter VIII of the Act. The said section in no way comes in the way of stage carriage operators like the appellants carrying on the profession of transport undertaking and obtaining necessary permits under Chapter V of the Act. Nothing prevents them from carrying on their profession and to run their stage carriages in the entire city of Mangalore except Hampanakatta area. Nothing prevents them from plying their stage carriages in any part of Udupi taluk or Udupi town excepting a small area in Udupi Bus Stand and the neighbouring roads. They could definitely ply their stage carriages in all those areas other than the two restricted areas by obtaining necessary permits under Chapter V of the Act. It is only in respect of these small areas that RTA has to take due note of the notification under Section 115 of the Act and to tell the operators that, though not from the RTA's point of view, at least from the point of view of avoiding entry into the prohibited areas, that a permit cannot be granted to ply stage carriages in such prohibited areas. RTA therefore would be certainly within its right in taking due note of the notification issued under Section 115 of the Act. Imposition of necessary restrictions under Section 115 of the Act therefore can hardly be called 'unreasonable' not falling within the ambit of Article 19(6) of the Constitution, particularly when the said restrictions can be imposed only if a reasonable authority specifies that it is necessary in the interest of public safety or convenience or because of the nature of any road or bridge. Restrictions to be so imposed under Section 115 are certainly reasonable restrictions within the meaning of Article 19(6) of the Constitution, they being in the interest of the general public, and that therefore, the said restrictions do not impinge the fundamental right of the appellants to practice their profession of running stage carriages guaranteed under Article 19(1)(g) of the Constitution.
13. In the light of the above discussion, the position would be this: The remedial measures that needed to be taken in respect of Hampanakatta in Mangalore City and Bus Stand and neighbouring areas in Udupi town could have been taken only under Section 115 of the Act and not under Section 71(3)(a) of the Act. Section 115 of the Act permitted even prohibition or restriction of driving of only some of the vehicles of a particular class i.e., only some stage carriages, even while no such restrictions are imposed on other vehicles of the same class i.e., on other stage carriages already plying before the date of the notifications concerned. Even then, the exceptions provided for in Section 115 in this regard do not amount to discriminating the subsequent operators vis-avis those who had obtained permits prior to the date of the notification. Section 115 is not violative of Article 14 of the Constitution. Restrictions imposed are reasonable restrictions within the meaning of Article 19(6) of the Constitution and therefore, there is no violation of Article 19(1)(g) of the Constitution also. Notification under Section 115 of the Act does not impinge the liberal policy of granting permits for stage carriages under the Act as given expression to by the Supreme Court in the case of Mithilesh Garg, supra. Notification under Section 115 has very little significance in the matter of RTA granting stage carriage permits under Chapter V of the Act. To the extent RTA takes note of the notification under Section 115 and declines grant of permit for stage carriages to ply in the area prohibited or restricted under Section 115, same cannot be held so unreasonable as to violate the fundamental right of the appellants under Article 19(1)(g) of the Constitution to carry on the profession of running stage carriages. Notification under Section 115 of the Act issued by the District Magistrate, or resolutions passed by the RTA under Chapter V of the Act granting or refusing permits for stage carriages, can hardly be attacked on the ground that the person who passes the order under Section 115 also happens to be the Chairman of the RTA. As found on facts, notifications are issued based on the Traffic Survey Reports and certainly not at the instance of or to benefit/the interests of the existing operators. These are the results of the discussion made earlier.
14. One argument advanced by the learned Counsel for the appellants/writ petitioner is that the notification issued under Section 115 of the Act is not meant to hold the field permanently but that the decision needs to be reviewed periodically. We agree with this submission. The proviso to Section 115 itself gives an indication in this regard. It contemplates that any prohibition or restriction under Section 115 could be meant to remain in force even for a period less than one month in which event, notice in the Official Gazette would not be necessary but only local publicity would suffice. Even without the aid of the said proviso, it could be seen that the paramount considerations leading to issuance of the notifications under Section 115 of the Act, namely the interest of public safety, convenience, nature of road or a bridge are not such as to remain permanently in the same condition as they stood on the date the concerned authority issued notification. The nature of the road on which plying of vehicles is prohibited or restricted could be improved by repairs. A weak bridge could be repaired or replaced by a new bridge. Convenience of the members of the public may necessitate more number of vehicles being required to be permitted in the area concerned. Thus, by the very nature of considerations that weighed in issuing the notifications under Section 115, the authority concerned needs to review the position from time to time. The moment the concerned road or bridge is repaired, prohibition/restriction earlier imposed needs to be withdrawn. Even on the aspect of convenience, some of the considerations that weighed with the authority in issuing the notification under Section 115 may change in course of time. By way of illustration, we may take the restriction in respect of the very Hampanakatta area. One of the factors that influenced the authority in restricting entry of stage carriages into the said area was the proposal of the City Municipal Corporation to shift the bus stand initiated in 1990, still not having been implemented. Its implementation could lead to authority's deciding that some more stage carriages may be let in the said Hampanakatta area. From the time the notification is issued, the members of the public to reach Hampanakatta area are left to depend entirely on the facilities to be provided by the existing stage carriage operators. If it comes to the notice of the District Magistrate that, taking advantage of this position, the operators of the existing stage carriages have taken the members of the public for granted and have been holding them to ransom not only by not providing mechanically good and comfortable vehicles but also charging unusually high fare, then, obviously the prohibition/restriction which the District Magistrate had earlier imposed for the convenience of the members of general public would have achieved opposite results. Even otherwise, from the experience of the members of the general public, the District Magistrate may have to come to the conclusion on the review of the situation that it would be more convenient for the said members of the public if more stage carriages are permitted in the said Hampanakatta area. Annexures-A1 to A4 to the Writ Petition No. 1300 of 1997, namely the photographs taken in the city of Mangalore on 13-1-1997, would indicate as to what inconvenience is caused to the members of public and as to what danger their lives are put to by the inadequacy of the stage carriages. Several situations that may warrant review of the decision taken earlier and taking a fresh decision under Section 115 of the Act may arise, and, it is absolutely necessary for the District Magistrate to have such periodical review, and, on such review, to either withdraw prohibition/restriction or to modify the prohibition/restriction earlier imposed, would be necessary. We, therefore, hold that periodical review is inherent in the scheme under Section 115 of the Act.
15. So far as Writ Appeal Nos. 24 to 27 of 1996 and Writ Petition No. 1300 of 1997 are concerned, the result of the above discussion and the conclusion reached thereon should be that the said appeals and the said writ petition must fail. The matter is different in respect of Writ Appeal No. 4273 of 1995. This appeal arises out of Writ Petition No. 30362 of 1995 filed by the appellant M/s. U.S. Travels questioning the notification under Section 115 of the Act issued in respect of Udupi Bus Stand and nearby areas. Insofar as the said prayer is concerned, the writ petition fails and the appeal arising therefrom must also necessarily fail in the light of the discussion earlier made. In addition, in the said writ petition, the appellant had also challenged the endorsement issued by the second respondent-Secretary, RTA on 14-7-1995. It also sought for writ of mandamus directing the said second respondent, namely the Secretary, RTA, to issue permit to the appellants in accordance with the resolution passed by the third respondent RTA on 27-7-1994. These prayers had been made in the following circumstances. The appellant M/s. U.S. Travels had applied for grant of permit for stage carriages which had been granted by the third respondent RTA in terms of the resolution passed by it on 27-7-1994 at Annexure-A. Resolution directed the Secretary to RTA to fix timings in accordance with law. Therefore, all that the second respondent-Secretary to RTA had to do was to so fix the timings. Instead, the said Secretary of RTA issued an endorsement . dated 14-7-1995 at Annexure-B bringing to the notice of the appellant the notification issued by the first respondent-District Magistrate under Section 115 of the Act in respect of Udupi Bus Stand and the neighbouring areas on 26-7-1994 at Annexure-C, and informing the appellant that grant will be made excluding the area covered by Annexure-C. Under Annexure-C, the District Magistrate, under Section 115 of the Act, restricted entry of those stage carriages into the areas specified therein in respect of which permits were to be obtained subsequent to the date of the notification i.e., 26-7-1994. The RTA in granting or refusing to grant permits under Chapter V of the Act and passing resolution accordingly, or the Secretary of the RTA in implementing such resolution, are entitled to take due note of any notification issued by the District Magistrate under Section 115 of the Act and decline permit for stage carriages to enter into ah area covered by the said notification under Section 115. Any such decision on the part of the RTA or the Secretary of the RTA should, however, be consistent with the notification issued under Section 115. Here in the present case, respondent 2-the Secretary of the RTA assumed that since the notification under Section 115 dated 26-7-1994 prohibited entry of all those stage carriages in respect of which permits were to be obtained henceforth and since the resolution in favour of the appellant had been passed by the RTA subsequent to 26-7-1994 i.e., on 27-7-1994, he could comply with the resolution of the RTA dated 27-7-1994 only subject to the notification under Section 115 dated 26-7-1994. On such assumption, the Secretary of the RTA issued an endorsement at Annexure-B. Sri C.V. Kumar, learned Counsel for the appellant, points out that if the notification dated 26-7-1994 under Section 115 could be held to be in force as on the date RTA passed the resolution in favour of the appellant on 27-7-1994, then, the endorsement of the Secretary to RTA at Annexure-B would be valid, but that, if the notification under Section 115 of the Act, though issued on 26-7-1994, cannot be said to be in force on 27-7-1994 when the RTA passed the resolution, then, the assumption of the Secretary to RTA in issuing Annexure-B would be wrong. Sri C.V. Kumar elaborates and submits that though issued on 26-7-1994, the notification under Section 115 came into force not on that day but much later when it was published in the Official Gazette and such publication certainly had not been effected on the next day i.e., 27-7-1994 when RTA passed the resolution in favour of the appellant. That notification under Section 115 of the Act, issued on 26-7-1994, had not been published as yet in the Official Gazette on 27-7-1994, is not in dispute. It is submitted at the Bar that the said publication in the Official Gazette was made only on 1-9-1994. Sri C.V. Kumar submits that it is from 1-9-1994 that the notification dated 26-7-1994 under Section 115 of the Act would operate, in which event assumption of the Secretary to RTA under Annexure-B that such notification was in force on 27-7-1994 when RTA passed the resolution in favour of the appellant, would be wrong. Learned Counsel is right in so submitting. Though the District Magistrate issued the notification under Section 115 on 26-7-1994, as will be presently seen, it came into force only on 1-9-1994 when it was published in the Official Gazette. Therefore, since the said notification affected only stage carriages in respect of which permits were granted after 1-9-1994, the said notification could not be held against the appellant because RTA had passed the resolution in favour of the appellant as far back as on 27-7-1994. All that remained for the Secretary to the RTA was to fix timings as directed in the resolution. On the wrong assumptipn, the Secretary to the RTA has declined to do so and has issued an endorsement at Annexure-B which cannot be legally sustained. It is for the following reason: The relevant portion in Section 115 of the Act with regard to issuing of notification thereunder is--". . . may by notification in the Official Gazette, prohibit or restrict, ..." It is, therefore, clear that mere issuance of the notification will not suffice, nor can the intended prohibition/restriction be achieved by mere issuance of the notification. The provision stipulates that such a notification shall be published in the Official Gazette also. More clear understanding of the purpose behind publication in the Official Gazette will be available if we look to the proviso to the said Section 115. If the intended prohibition or restriction is decided upon to hold the field for a period less than one month, then, no such publication in the Official Gazette would be necessary, but that all that would be necessary is local publicity of such prohibition or restriction as the circumstances may permit. Where prohibition or restriction is intended to hold the field for more than one month, it is made absolutely clear that mere local publicity of such prohibition or restriction would not suffice but that such prohibition or restriction shall have to be published in the Official Gazette. It is thus clear that any notification intending that prohibition or restriction should hold the field for more than a month would come into being only when it is duly published in the Official Gazette. Insofar as the notification concerned herein, namely one dated 26-7-1994, not only from the contents of the said notification but also from the fact that it was published in the Official Gazette on 1-9-1994, it is clear that prohibition/restriction thereunder was intended to hold the field for more than a month. The said notification, therefore, came into force on 1-9-1994 on being published in the Official Gazette on that date and not on 26-7-1994 on which date it was merely issued. Therefore, the second respondent-Secretary to RTA has to fix timings in terms of the resolution of the third respondent RTA dated 27-7-1994 without reference to the first respondent-District Magistrate's notification dated 26-7-1994 published in the Official Gazette on 1-9-1994.
16. In the result, following order is passed.
(a) Writ Appeal No. 4273 of 1995 is allowed. Impugned order is reversed. Writ Petition No. 30362 of 1995 is partly allowed. Annexure-B dated 14-7-1995 is quashed. Respondent 2-Secretary to the RTA, Dakshina Kannada, Mangalore, is directed to issue permit in terms of the resolution passed by Respondent 3-RTA on 27-7-1994, fixing timings in accordance with law as directed in the said resolution.
(b) Writ Petition No. 1300 of 1997 and Writ Appeal Nos. 24 to 27 of 1996 are dismissed. First respondent District Magistrate, Dakshina Kannada, Mangalore, is however directed to periodically review all notifications issued under Section 115 of the Act, and, so far as the three notifications under Section 115 of the Act impugned in these proceedings are concerned, the District Magistrate is directed to undertake review within three months from today.
(c) In the circumstances, parties shall bear their own costs.