Calcutta High Court (Appellete Side)
South Bengal State Transport ... vs Manik Lal Manjhi & Ors on 31 July, 2015
Author: Tapen Sen
Bench: Tapen Sen, Tapash Mookherjee
1 FM
South Bengal State Transport Corporation
Vs
Manik Lal Manjhi & Ors.
________________________________________________________________________________________________
IN THE HIGH COURT AT CALCUTTA
(CIVIL APPELLATE SIDE)
FMA 195 of 2012
South Bengal State Transport Corporation
Vs.
Manik Lal Manjhi & Ors.
CORAM : The Hon'ble Mr. Justice Tapen Sen
&
The Hon'ble Mr. Justice Tapash Mookherjee
For the Appellants : Mr. Pantu Deb Roy,
Mr. Subrata Guha Biswas,
Mr. Anit Kumar Das.
(Advocates)
For the State : Mr. Amal Kumar Sen,
Mr. Sabyasachi Mondal.
(Advocates)
For the Respondents / Writ : Mr. Moloy Kumar Basu, Sr. Adv.,
Petitioners Mr. Rabindra Nath Das,
Mr. Durga Prasad Dutta,
Mr. Sumanta Ganguly.
(Advocates)
C.A.V. on : 08.07.2015
Judgment Delivered on : 31.07.2015
Tapen Sen, J.:
This appeal is directed against the Judgment and Order dated 20.09.2011 passed by a learned Single Judge of this Court in WP No. 16863(W) of 2009 (Manik Lal Manjhi Vs. Union of India & Ors.) allowing the Writ Petition.
2. The Petitioner, Manik Lal Manjhi, filed the Writ Petition challenging a notice dated 09.07.2009 published in the "Ananda Bazar Patrika" issued by the South Bengal State Transport Corporation whereby and whereunder applications were called for from interested operators to ply vehicles under the JNNURM Scheme. It was also notified that under the said Scheme, such interested persons were to ply about hundred High-Tech 2 FM South Bengal State Transport Corporation Vs Manik Lal Manjhi & Ors.
________________________________________________________________________________________________ Luxury Semi Low Floor buses in and around the Municipal limits of Asansol and Durgapur as franchisees of the said South Bengal State Transport Corporation.
3. In the said Writ Petition the Petitioner also prayed for an explanation upon the Respondent Authorities as to why they had not taken steps in accordance with the Notifications issued by the Central Government and the Government of West Bengal on 01.06.2006 and 20.10.2006. By reason of the Notification dated 01.06.2006, the Central Government had directed the State Government of West Bengal to direct the concerned State Transport Authority and the Regional Transport Authorities to limit, by a Notification in the Official Gazette, the number of Stage Carriages as well as Contract Carriages generally or of any specified type as may be fixed and specified in the Notification operating in the Municipal limits of Asansol city in the District of Burdwan.
4. By reason of the subsequent Notification dated 20.10.2006 the Government of West Bengal, in exercise of powers conferred under Section 71(3)(a) of the Motor Vehicles Act, 1988 and 74(3)(a) of the said Act, directed the Regional Transport Authority, Burdwan as well as other Regional Transport Authorities including the State Transport Authority, West Bengal that new Stage Carriage Permits as well as Contract Carriage Permits for all category of passenger transport vehicles on any route / area within the Municipal limits of Asansol city of Burdwan shall not be issued in respect of any route touching / terminating / originating in the areas within the Municipal limits of Asansol excluding Inter-State Stage Carriage / Inter-State Contract Carriage until further orders. It was also notified that the Government in the Transport Department shall have the liberty to notify such routes as deemed fit in public interest.
5. It appears that the Petitioner was a permit holder of a Stage Carriage in and around Asansol Sub-Division in the District of Burdwan. A Writ Petition being WP No. 3 FM South Bengal State Transport Corporation Vs Manik Lal Manjhi & Ors.
________________________________________________________________________________________________ 1163(W) of 2004 was filed by some operators as well as by an association of operators plying their vehicles in the District of Burdwan in and around the town of Asansol. That Writ Petition was disposed of giving liberty to them to approach the Transport Authority as well as the Central Government to bring to their notice the conditions of the town of Asansol including the number of vehicles operating there and other relevant matters by way of a representation. The Authorities were directed to take a decision after giving opportunity of hearing to all parties concerned. It appears that thereafter on 26.07.2005 a representation was filed before the State Government and after giving an opportunity of hearing, the Principal Secretary to the Government of West Bengal, Department of Transport prepared a report dated 21.02.2006 imposing restriction of issuing Stage Carriage Permits and Contract Carriage Permits relating to the routes in question originating or terminating within the city of Asansol. That report was forwarded to the Central Government by a communication dated 22.02.2006.
6. The Central Government then issued the Notification dated 01.06.2006 referred to above directing the State Government to limit the number of Stage Carriages and Contract Carriages generally or of any specified type operating within the Municipal limits of Asansol.
7. Subsequently, the Government of West Bengal issued the other Notification being 20.10.2006 limiting and restraining the Regional Transport Authority and other Transport Authorities from issuing new Stage Carriage Permits or Contract Carriage Permits for any route or area within the Municipal limits of Asansol.
8. The grievance of the Petitioner is that in spite thereof, on 09.07.2009 the impugned notice was published in the "Ananda Bazar Patrika". That Writ Petition 4 FM South Bengal State Transport Corporation Vs Manik Lal Manjhi & Ors.
________________________________________________________________________________________________ became a subject matter of challenge in the instant Writ Petition. It appears that on 22.12.2009 the said Writ Petition was disposed of with the following observations:-
"The advertisement has been issued by the South Bengal Transport Corporation and not the State Transport Authority or any Regional Transport Authority. The South Bengal Transport Corporation does not issue permits. The advertisement is apparently in relation to the plying of buses by the South Bengal Transport Corporation.
The Regional Transport Authorities and the State Transport Authorities shall, however, not issue any new permit in contravention of the Notification under Section 71(3)(a) read with Section 74(3) issued by the Government of West Bengal.
The writ application is disposed of with the above observation and or direction.
Urgent photostat certified copy of this order be supplied to the appearing parties, if applied for, with all necessary formalities."
9. It appears that thereafter by an Order dated 27.01.2010 a Division Bench set aside the aforesaid Order dated 22.12.2009 and remanded the same back to the learned Single Judge for final adjudication.
10. It appears that on 15.02.2010, the Writ Petitioner was allowed to amend the Writ Petition so as to enable him to challenge the Order dated 30.12.2009 which was passed by the General Secretary of the Government of West Bengal, Department of Transport authorizing the South Bengal State Transport Corporation to operate buses owned by them under the JNNURM Scheme on different routes originating and terminating at Asansol / Durgapur in relaxation of the existing restrictions as also the Notification dated 15.01.2010 issued by the State Government allowing the State Transport Authorities and Regional Transport Authorities to issue new Stage Carriage Permits in favour of South Bengal State Transport Corporation for applying hundred buses under the JNNURM Scheme.
5 FM South Bengal State Transport Corporation Vs Manik Lal Manjhi & Ors.
________________________________________________________________________________________________
11. It appears that a preliminary objection with regard to the maintainability of the Writ Petition was raised by the State Government. The learned Counsel appearing for the Petitioner had submitted that the Petitioner was plying his vehicle in and around the areas following within the Municipal limits of Asansol city on the basis of valid permits. He had further stated that his legal rights would be infringed if others were allowed to ply their vehicles on the strength of State Carriage or Contract Carriage Permits issued in violation of the provisions of the Motor Vehicles Act and therefore he was a person aggrieved. The learned Judge held that the Writ Petition was maintainable. On the question of merits the learned Single Judge held that the Notification dated 09.07.2009 published in the "Ananda Bazar Patrika" was illegal and therefore proceeded to quash and set aside the same.
At this juncture, we must point out that no person can be allowed to say that only because he would be prejudiced by the grant of new permits, he should therefore be given the relief of obstructing other similarly situated permit holders or other institutions / public bodies to obtain permits for plying on the route in question. If such relief is granted then it would encourage monopoly and therefore, even if the Writ Petition was maintainable, such a ground for moving the Writ Court should not have been accepted. We, therefore, feel that the learned Trial Judge fell in error on this issue and did not take the same into consideration.
12. In the background of the aforementioned facts and circumstances we have been called upon to interpret the various provisions of the Motor Vehicles Act. However, before we do so, we must consider that the earlier Notification dated 01.06.2006 was a Notification that was issued in the year 2006 directing the State Government to limit the 6 FM South Bengal State Transport Corporation Vs Manik Lal Manjhi & Ors.
________________________________________________________________________________________________ number of Stage Carriages. Let it be recorded that we are now in 2015 and in the interregnum nine years have gone by. The need of the public has also increased.
13. Having said so, we notice that instead of limiting the number of vehicles, what the State Government did in 2006 itself i.e. on 20.10.2006 was that it imposed a complete ban on the Transport Authorities saying that new Stage Carriage Permits and Contract Carriage Permits on any route within the Municipal limits of Asansol shall not be issued in respect of any route touching / terminating / originating in the areas within the Municipal limit of Asansol. However, a rider was given that the Government shall have the liberty to notify such routes as deemed fit in public interest.
14. It appears that thereafter on 15.01.2010 another Notification was issued by the Government of West Bengal, Department of Transport wherein in purported compliance of the intention of the Government that they had the liberty to notify such routes as deemed fit in public interest and as was indicated in the Notification dated 20.10.2006, it was notified, referring to the said Notification dated 20.10.2006, that in the month of January, 2009 the Government of India had formulated a scheme known as the Jawaharlal Nehru National Urban Renewal Mission for funding procurement of BS-III compliant buses for plying in some selected mission cities and that in April, 2009 sanction had been given for procurement of hundred number of buses with the financial assistance from the Central Government as well as the State Government under the said scheme for plying the same in the cities of Asansol and Durgapur by the South Bengal State Transport Corporation and therefore the Governor had relaxed the conditions imposed in the earlier Notification dated 20.10.2006 giving liberty to the Transport Authorities to issue new Stage Carriage Permits in favour of the South Bengal Transport Corporation for plying a maximum number of hundred such buses procured under the 7 FM South Bengal State Transport Corporation Vs Manik Lal Manjhi & Ors.
________________________________________________________________________________________________ JNNURM Scheme on any route touching / terminating / originating in the areas falling within the Municipal limits of Asansol. In the background of the aforementioned facts and circumstances we find that the State Government had already limited the number of vehicles as would be evident from Pages 46-47 of this Paper Book and which contains the minutes of the decision taken by the Principal Secretary, Department of Transport on 26.12.2005. This, therefore was a Notification of 2005 and after 10 years, can the Government continue to be bound by it irrespective of public interest, is to be considered.
15. In considering the aforementioned question we must bear in mind that the earlier Act being the Motor Vehicles Act, 1939, came to be replaced by the Motor Vehicles Act, 1988. This replacement came when society required the Act to be made more relevant to suit modern day requirements. While considering the enactment of the new law, provisions were made liberalizing the schemes pertaining to the grant of Stage Carriage Permits, All India Tourist Permits and also National Permits for Goods Carriages. Consequently, the provisions of grant of permits were also liberalized. Section 80 is now the provision, which deals with the procedure for applying and granting of permits. Upon a perusal of Section 80 it is evident that an application for a permit of any kind may be made at any time and the Transport Authority cannot ordinarily refuse the grant of a permit made under the provisions of the Motor Vehicles Act, 1988. However, a proviso has been added which says that the Transport Authority may summarily refuse an application for grant of permit if such grant would have the effect of increasing the number of Stage Carriages that may have been fixed or specified by a Notification in the Official Gazette. However, such refusal has to be made in the form of reasoned order and after giving an opportunity of hearing.
8 FM South Bengal State Transport Corporation Vs Manik Lal Manjhi & Ors.
________________________________________________________________________________________________
16. The point that has been argued before us is that by a Notification dated 01.06.2006 the Government of India had already directed the State Transport Authorities to limit the number of Stage Carriages Permits and pursuant to that Notification, the Government of West Bengal issued a Notification dated 20.10.2006 banning completely the grant of any permit on the routes / areas within the Municipal limits of Asansol city. However, a rider was given that such a ban shall continue till further orders and that the Government in the Transport Department shall have the liberty to notify such routes as deemed fit in public interest. Considering the liberalized policy of the Legislature in enacting the Motor Vehicles Act, 1988 and keeping public convenience as a paramount consideration, we must say that the Notification dated 01.06.2006 issued by the Government of India was, firstly, issued way back in the year 2006 directing the Government to limit the number of Stage Carriage Permits. That notification, in the background of public convenience at large cannot be interpreted to mean that if at any future point of time the State Government felt that there was a need for further permits in the interest of the public, the mandate of the Central Government must be taken each time. In this context, we must point out that the Motor Vehicles Act is a subject matter of the Concurrent List - i.e. LIST-III. Entry 35 of the Concurrent List says that it will include the subject of mechanically propelled vehicles including the principles on which taxes on such vehicles which are to be levied. Control of traffic is under the State List - i.e. LIST-II under Entry 13. Consequently, if the State Government feels that there is a genuine requirement for additional permits, in the opinion of this Court, the subsequent Notification dated 15.01.2010 issued by the Government of West Bengal informing inter-alia that in January, 2009 the Government of India had formulated the JNNURM Scheme for providing modern vehicles and that in April, 2009 9 FM South Bengal State Transport Corporation Vs Manik Lal Manjhi & Ors.
________________________________________________________________________________________________ sanction had been given for procurement of hundred vehicles with financial assistance of the Central Government as well as of the State Government under the said scheme for plying those vehicles in the cities of Asansol and Durgapur by the South Bengal State Transport Corporation, then in that event, the Notification dated 01.06.2006 issued by the Government of India cannot play a restrictive role by putting fetters on the powers of the State Government to control traffic as envisaged in the State List by additional permits / routes.
17. Moreover, the Notification dated 20.10.2006 was only a preliminary Notification because it clearly laid down that the ban would be until further orders and that the Government in the Transport Department shall have liberty to notify such routes as deemed fit in public interest.
18. We have been informed that hundred new luxury vehicles have already been purchased, as has been submitted by the learned Counsel appearing for the Appellants. These vehicles cannot be allowed to be ruined, nor can a rival transport operator be allowed to contend that the interests of the State and / or State Public Sector Undertakings be kept on the shelves only to ensure that his monopoly over a route in question is not disturbed. At the same time, we must also take into consideration that the State Government in consultation with the Government of India has already invested a huge amount of money towards purchase of hundred luxury vehicles with the sole objective of rendering assistance to the increasing flow of traffic under a valid scheme framed by the Government of India. That scheme cannot be allowed to be frustrated by rival operators such as the Writ Petitioner. At the same time we cannot also lose track of the fact that during the last decade, there has been a huge increase in the flow of traffic 10 FM South Bengal State Transport Corporation Vs Manik Lal Manjhi & Ors.
________________________________________________________________________________________________ for which the Central Government as well as the State Government have the onerous responsibility of creating necessary infrastructure.
19. Before we conclude, we must take judicial notice of the fact that Asansol city itself is a very crowded city and the Authorities cannot therefore be allowed to flood the city with hundred vehicles. We, therefore can only allow the South Bengal State Transport Corporation to ply their vehicles under the JNNURM Scheme in such a manner that they are not allowed entry within the city limits of Asansol. They can, at best, park their vehicles outside the city limits and for which, the Government shall take all steps to create a new, ultra modern bus stand.
However, for the time being, we have been told that there is already a bus stand just near the Super Express Highway. They can use this bus stand for plying their vehicles, which should not, in any case, exceed twenty in number per day. So far as the remaining buses are concerned the Government must construct a proper, hygienic, comfortable bus stand without disturbing the traffic flow within the city limits. They can however ply on the Super Express Highway.
20. With the aforesaid observations and directions, we set aside the Order of the learned Trial Judge and dispose of the Appeal.
21. Urgent Certified Copy to be issued upon appropriate application(s) being made in that regard.
(Tapen Sen, J.) I Agree, (Tapash Mookherjee, J.) 11 FM South Bengal State Transport Corporation Vs Manik Lal Manjhi & Ors.
________________________________________________________________________________________________ A.F.R / N.A.F.R