Calcutta High Court (Appellete Side)
Asim Kumar Ghosh And Another vs The State Of West Bengal And Others on 26 July, 2018
Author: Harish Tandon
Bench: Harish Tandon
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Harish Tandon.
(W)
W.P. 5633 of 2018
Asim Kumar Ghosh and another.
Vs.
The State of West Bengal and others.
For the Petitioners : Mr. Rameswar Bhattacharya,
Mr. Ram Uday Bhattacharya.
For the State : Mr. Amal Kumar Sen,
Mr. Santanu Maitra,
Mr. Mirza Kamruddin.
For the Respondent nos. : Mr. N. I. Khan.
4, 6 to 17,19 & 21 to 24.
Heard on : 26th July 2018.
Judgment on : 26th July 2018.
The Court: Two points are raised in the instant writ petition by the learned Advocate appearing for the petitioners; firstly, the impugned resolution dated 7th February 2018 of the Board of Regional Transport Authority, Malda in granting permit to the applicants was in violation of Rule 103 of the West Bengal Motor Vehicle Rules, 1989 (hereinafter referred to as 'said Rules') and secondly, the impugned resolution is bad having ignored the instructions/guidelines issued by the Transport Department wherein the route permit, which falls outside the region of Kolkata, can be granted to the new vehicle and not otherwise.
Undisputedly, the petitioners are the stage carriage operators in respect of the inter-regional routes from Malda to Raiganj and from Gazole to Berhampore respectively. Several applications were filed by the intending operators for grant of new stage carriage permits in different routes, some of them falls within one region and some between two regions. All such applications were taken up together in the said board meeting of the Regional Transport Authority and a comprehensive decision was taken approving the applications filed by such intending operators subject, however, to the "No Objection Certificate" to be granted by the other Regional Transport Authority in case of the route falling between two regions.
Mr. Rameswar Bhattacharya, learned Advocate appearing for the petitioners, submits that such decision offends the provision contained under Rules 103 of the West Bengal Motor Vehicle Rules, 1989 providing mechanism and procedure for taking decision to grant permit on any route falling within the jurisdiction of two regions. Mr. Bhattacharya further submits that the instructions/orders of the Transport Department mandate the placement of new vehicle in the permit complying BS-III norms if it falls beyond the territorial limits of the Kolkata region and having not considered the same, the impugned resolution is liable to be quashed and set aside. Mr. Bhattacharya would further submit that some of the intending operators have placed the vehicle, which was incorporated in another permit and, therefore, cannot be treated as new vehicle in terms of the said instructions/guidelines/orders of the Transport Department. Mr. Bhattacharya emphasizes that if a thing is required to be done in a particular manner it should be done in such manner as the other manner has been excluded by placing reliance upon a judgment of the Privy Council in case of Nazir Ahmad -Vs- Emperor, reported in 1936 Privy Council 253. Mr. Bhattacharya further submits that if the grant of permit is in derogation of the provision of the Act and Rules framed therein and the complaint in this regard having made to the concerned authority, it is a duty of the statutory authority to look into the matter as the failure may make such person aggrieved and an approach can be made before a High Court under Article 226 of the Constitution of India. The aforesaid contention is raised taking aid of the judgment delivered by the Full Bench in case of Prabhat Pan -Vs- State of West Bengal, reported in 2015 (2) CHN (Cal) 185.
On the other hand, Mr. Amal Kumar Sen, learned Advocate appearing for the State Transport Department, submits that Rule 103 of the said Rules is contrary to the specific provision contained in the Motor Vehicle Act, 1988 (hereinafter referred to as "said Act") and, therefore, has no legal binding efficacy. He further submits that Section 88 (1) of the said Act provides the mechanism and the manner in which the permit is treated as valid and to regulate and/or to promote the object of the aforesaid provision in the said section, the power has vested upon the Central Government to make Rules. According to Mr. Sen, any Rule framed by the State Government touching and/or effecting the spirit and the language of Section 88 of the said Act, is bad in law as the authority has exercised power in excess to what has been conferred upon it. Mr. Sen further submits that the permit in a route falling within the limits of two regions can only be valid if it is countersigned by the Regional Transport Authority of the other region. It is the unanimous procedure adopted by the Regional Transport Authority of the State to seek no objection from the corresponding Regional Transport Authority and the countersignature thereof is obtained subsequently. Mr. Sen, thus, submits that the Regional Transport Authority, Malda has not finally issued the permit to any of such intending operators, unless either the "No Objection" from the corresponding Regional Transport Authority of the other region is first obtained and thereafter the permit so granted by the issuing Regional Transport Authority is required to be countersigned by the corresponding Regional Transport Authority of the other region. While saying so, Mr. Sen submits that the instant writ petition is premature, as such decision has not taken a final shape so as to remotedly cause prejudice to the petitioner.
Mr. N. I. Khan, learned Advocate appearing on behalf of the private respondents, except respondent nos. 5,18 and 20, submits that the moment the issuing Regional Transport Authority sought for "No Objection" from the other Regional Transport Authority, as the route covers both the regions, it sufficiently complies the provision of Rule 103 of the said Rules and placed reliance upon unreported judgment delivered by the Division Bench in case of Ananta Mondal - Vs- The State of West Bengal & Ors in W.P. 18868 (W) of 2015 decided on 28th September 2015. Mr. Khan would further submit that the expression 'new permit' used in the instructions/orders dated 26th April 2013 by the Transport Authority came up for consideration before this Court and it was observed that such condition cannot be imposed offending the provisions of Act and Rules applicable thereto. Mr. Khan, thus, submits that if the vehicle is Bharat Stage III compliant, which is one of the requisite conditions, it satisfies the requirements. However, Mr. Khan joins with Mr. Sen on the plea of premature cause of action and submits that the writ petition is liable to be dismissed on that score alone.
In reply to the aforesaid contention, Mr. Bhattacharya relies upon an another unreported Division Bench judgment of this Court in case of Anhar Ali - vs- Gobinda Debnath & Ors in MAT 1787 of 2016 decided on 14th February 2017, where the provision of Rule 103 of the said Rules was a matter of concern to the Division Bench and it was ultimately held that in the event of non compliance of the aforesaid provision, the decision cannot be sustained and ultimately an order was passed upon the two Regional Transport Authorities to hold the joint conference to take a decision upon incorporating the said Rules.
On the conspectus of the submissions advanced at the Bar by the respective Counsels, as indicated above, the four points, which emerge in the instant writ petition. Firstly, whether the impugned decision of the Board of the Regional Transport Authority fulfils the conditions of the provisions contained under Rule 103 of the said Rules; secondly, whether such rule is in conformity with the other provision of the parent Act or in derogation there with; thirdly, whether the State is competent to frame any Rules under Section 96 of the said Act touching, curtailing and/or abridging the provisions contained under Section 88 of the said Act in view of sub section (4) thereof; fourthly, whether the Transport Department of the State of West Bengal can impose any conditions by way of issuing orders/guidelines affecting any of the provisions of the statute applicable in this regard.
Point Nos. 1 to 3.
The object and purpose behind incorporation of the Motor Vehicles Act, 1988 is to consolidate and amend the law relating to the motor vehicles. Predominantly, the aforesaid Act was necessitated for smooth running, plying of the commercial and other private vehicles and to avoid any congestion and/or accident to occur causing life of the commuters and the citizens of the country. It is, thus, aimed to regulate, promote, control and bring the smooth plying of the vehicles on the road and is also a beneficial piece of legislation providing compensations for loss of life.
Section 68 of the said Act confers power upon the State Government to constitute the State Transport Authorities and also the Regional Transport Authorities to exercise the powers and functions as specified in sub-sections as well as by framing the Rules in exercise of the Rule making power. Sub-section (1) of Section 80 gives right to every person to apply for permit of any kind at any time and sub-section (2) bridles power of the State Transport Authorities and the Regional Transport Authorities not to refuse the grant of application for permit ordinarily except on a well-recognized and well-defined parameters.
Section 88, which, in fact, pressed in service by the State respondents, deals with the prescribed form for grant of permit and if such permit covers the route falling in two or more regions, the validity of such permit is dependent upon the countersignature of the Regional Transport Authority of the other region. However, the validity was preserved and/or saved for the route, which falls within the limit of the issuing Regional Transport Authority within its region and shall not be valid for the other region, unless it is countersigned by the Regional Transport Authority of the region. Sub-section (14) of Section 88 gives power to the Central Government to make Rules for carrying out the provisions of the said section covering the eventualities enshrined in clause (b) of sub-section (14) of Section 88 of the said Act. The language employed in the aforesaid provisions leaves no ambiguity that the power to frame Rules is conferred upon the Central Government so far as it touches or relates to any of the provisions of Section 88 of the said Act.
It is axiomatic to record that all the Counsels appearing for the respective parties are uniform in their submissions that the Central Government has not framed any Rules in exercise of rule making power enshrined under sub-section (14) of Section 88 of the said Act. Sections 95 and 96 of the said Act are included in Chapter-V of the Act, which imbibe within itself Section 88, conferring power upon the State Government to make Rules for stage carriages, contract carriages and also for the purpose of the said Chapter.
It is uniformly submitted by the learned Advocates that the West Bengal Motor Vehicles Rules, 1989 was framed in exercise of power under Sections 95 and 96 of the said Act and, therefore, the competence of the State to legislate such Rules cannot be doubted at all.
Both the aforesaid sections though give power to the State Government to frame Rules, yet circumscribed by the conditions and/or the eventualities enumerated therein. The power of the Central Government to frame Rules under the aforesaid Chapter is restricted by the provisions of Section 88 of the said Act as the said Chapter contains the provisions like Sections 95 and 96 of the Act conferring jurisdiction of the State Government to frame Rules.
It is no longer res integra that the Rules so framed by the State or the Central Government in exercise of the rule making power cannot contain any provisions, which are contrary to and/or repugnant to the provisions of the principal Act. The Rule cannot supplant and/or curtail, abridge and override any provisions of the principal Act but must supplement or complement such provisions keeping in mind the object and purpose for which the principal Act was legislated.
Rule 103 of the said Rules prescribes the manner and the mechanism for taking a decision to grant permit on any route or in any area, which falls within the jurisdiction of two regions. The said Rule is quoted as under:
"103. Before deciding to grant permit on any route or in any area which falls within the jurisdiction of two regions, the Regional Transport Authorities concerned shall meet at a joint conference and decide the issue. In case there is no unanimity, the matter shall be referred to the Commissioner of the Division if they fall within the same Division and in all such cases, the decision of the Commissioner shall be final. In all other cases, the matter shall be referred to the State Transport Authority and the decision of the State Transport Authority shall be final."
It is manifestly clear from the reading of the language employed in the said Rule that if the route falls within the jurisdiction of two regions, the Regional Transport Authorities concerned shall meet at a joint conference and decide the issue before deciding to grant permit. In case of non-consensus, the Divisional Commissioner, if both the regions fall within its jurisdiction, is given power to take decision. The said provision further provides that if both the regions fall within the jurisdiction of different Divisional Commissioners, the matter is required to be referred to the State Transport Authorities and the decision of the said authority shall be final.
One can notice the difference in the procedure and mechanism provided under Section 88(1) of the said Act and Rule 103 of the said Rules. Sub-section (1) of Section 88 of the Act specifically provides that the permit granted by the Regional Transport Authorities of one region shall not be valid in any other region, unless such permit is countersigned by the Regional Transport Authorities of the other region. Equally, the permit granted by one State shall not be valid in other States, unless the reciprocating State put its countersignature on the permit issued by the other States, if the permit covers the route, which falls within the jurisdiction of the two States.
One can see apparent differentiation in the aforesaid provisions. Sub- section (1) of Section 88 of the Act contemplates a situation where the permit is granted by one Regional Transport Authority after taking a decision but such permit is not valid in the other regions or in other words, for the route, which falls within the jurisdiction of other Regional Transport Authority, unless such Regional Transport Authority countersigns on the permit. Rule 103 of the said Rules conceived a situation prior to the decision taken for granting permit if such route falls within the jurisdiction of two regions.
The expression "before deciding to grant permit" is to be interpreted in the light of the provisions contained in sub-section (1) of Section 88 of the said Act. It is not in dispute that there are several stages of granting permit. The applicant has to make an application for grant of permit under Section 69 of the said Act and the particulars to be furnished with the application can be seen under Section 70 thereof. There are different provisions relating to the grant of stage carriage permit and the contract carriage permit and the parameters to grant such permit is also provided therein.
The contention of Mr. Sen that the Central Government can only frame Rules under sub-section (14) of Section 88 of the said Act does not appear to be correct for the reason that such power was restricted to the said section, whereas Section 96 of the said Act gives power to the State Government to frame Rules for the purpose of the said Chapter. Section 88 of the said Act is included within Chapter-V of the said Act and, therefore, one can definitely see a difference in the provisions and the rule making power upon the various authorities. The Central Government can frame Rule, which should be restricted to the provisions of Section 88 of the said Act and, therefore, impliedly exclude the State Government to frame Rule touching or effecting any of the provisions of Section 88 of the said Act.
The rule making power, if provided in the parent Act, if exercised either by the Central Government or the State Government, such Rule remains legally valid unless it overrides any of the provisions of the substantive Act or the principal Act and appears to be inconsistent and repugnant thereto. Section 88(1) of the Act concerns the validity of the permit in other region unless countersigned by such authority of the said region but does not ipso facto make such permit invalid as its validity is still saved within the region of the issuing authority.
The expression "before deciding to grant permit" has to be read in conjunction with the provision of sub-section (1) of Section 88 and not in derogation therewith. Rule 103 requires a joint conference for the purpose of having concurrence over the route for which an application is made by the intending operator, which appears to be a paramount consideration. The expression "before deciding to grant permit" on any route has to be read in the light of the object and purpose of the said Act and cannot be interpreted to whittled down the same or to frustrate such object. No consequence is provided if the provisions contained under Rule 103 of the said Rules is not strictly adhered to. It has been a uniform practice that the Regional Transport Authority of one region makes its scrutiny of the application and gives its approval thereupon but such approval is not unfettered and/or unbridled, as the same is dependent upon the decision of the other Regional Transport Authority.
The impugned resolution also depicts the same as the approval was abridged and/or fettered with the "No Objection" to be given by the Regional Transport Authority of the other region. There is no hesitation that such approval was a conditional one depending upon the concurrence of Regional Transport Authority of other region. The concept of giving "No Objection" by the Regional Transport Authority is to convey its concurrence and approval to the decision of the other Regional Transport Authority even if both the Regional Transport Authorities have not held joint conference.
The expression "joint conference" appearing under Rule 103 contemplates the concurrence, agreement and unanimity to the decision of the other Regional Transport Authority and nothing more than that. The decision is incomplete unless the concurrence and/or approval is granted by the Regional Transport Authority of another region and there is no prescribed form in the Rules or the Act pertaining to such concurrence. The "No Objection" is one of such device, which is prevalent and adopted by various Regional Transport Authorities and, therefore, can be considered as a concurrence and approval of the decision of other Regional Transport Authority. Mere granting approval or unanimity in the decision does not ipso facto or automatically validates the permit as its validity is dependent upon the further act and/or steps to be taken under sub-section (1) of Section 88 of the said Act. In other words, even if two Regional Transport Authorities of the regions took unanimous decision to give approval or permission to grant permit but such permit is not valid unless the Regional Transport Authority of the other region put its countersignature on the permit granted by the another Regional Transport Authority.
Both the provisions, in my view, complement each other and do not contradict. There is no quarrel to the settled proposition as laid down in Nazir Ahmed's case that if a thing is required to be done in a particular manner it should be done in such manner as the other manner has been impliedly excluded. Such well-settled proposition of law is applicable where there has been a complete departure of the provisions of the Act or the Rules framed therein in taking decision affecting the rights of the parties accrued under the statute. If the procedure and mechanism adopted by the authorities achieves purpose for which the prescriptions have been made, the desirability of the strict adherence thereof is not required. The object underlying incorporation of Rule 103 can be seen that there must be unanimity and/or concurrence in the decision taken by the Regional Transport Authority and if such concurrence and unanimity can be seen by way of "No Objection" given by the other Regional Transport Authority, it sufficiently complies the said provisions and the decision cannot be said to be per se illegal.
The matter can be viewed from another angle if the contention of Mr. Bhattacharya is accepted and the resolution of the Regional Transport Authority, Malda is quashed and set aside, it simply invites a situation that the Regional Transport Authority, Malda and the Regional Transport Authority of other region would have already given their nod by way of "No Objection" shall simply give a re-concurrence and/or reiteration of their decision, which will simply delay the decision. It will not achieve any other purposes than the delayed decision and, therefore, this Court does not find that the impugned resolution deserves any interference being in contradiction with the provisions of Rule 103 of the said Rules.
Point No. 4.
It is no longer res integra that the authorities can fill up the gap by way of an instruction/guidelines and/or the orders in the Act as well as the Rules in order to keep the purpose and object of the Act intact. The aforesaid actions are to fill up the vacuum in the Act and the Rules and are treated as facilitator to such object but not to supplant and/or override the same. In a recent past yet it is a concern to every citizen of the globe to avoid the pollution being caused by emission of toxic gases affecting the atmosphere resulting into the extinction of both flora and fauna. Various orders were passed by the Supreme Court as well as different High Courts with regard to the maintenance of emission caused by the vehicle affecting the atmosphere and sustainability of leaving organisms in the globe. The United Nation has also shown its deep concern over the pollution being caused and by its Charter has directed the signatory States to take adequate measures and steps in this regard. Various Acts have been framed by the signatory of the States to the United Nation Charter and if any decision is taken by the responsible State that the vehicle should be the Bharat Stage-III compliant, there cannot be any ambiguity and/or infirmity in such decision.
The expression "new vehicle" used in the said order is not contemplated anywhere in the Act or the Rules. The expression "new vehicle" cannot be construed that the intending operator must purchase the vehicle from the manufacturer and then placed it under the permit. What is sine qua non and appears to be mandatory that the vehicle must be BS-III norms compliant and should not be attached with any other permit at the time of making an application. Any other interpretations would impliedly and remotedly extend the benefit to the manufacturer, which was never the intention of the responsible Government. Furthermore, if the vehicle is allowed to be plied limiting the duration between the date of manufacturing and the present one, this Court does not find any irrationality in the said decision that only the new vehicle can be granted permit and not the other, which are well within such limited life.
This Court, therefore, does not find that there is any illegality and/or infirmity in the said decision.
The writ petition is dismissed.
There shall, however, be no order as to costs.
ab (Harish Tandon,J.)