Orissa High Court
Ms.Biswajit Minerals Pvt Ltd vs State Of Odisha Represented Through The ... on 30 January, 2018
Equivalent citations: AIR 2018 ORISSA 69, (2018) 1 ORISSA LR 759 (2019) 1 CIVLJ 276, (2019) 1 CIVLJ 276
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.19933 of 2016
AND
W.P.(C) NO.19266 OF 2015
In the matter of applications under Articles 226 and 227 of the
Constitution of India.
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In W.P.(C) No.19933 of 2016
Gouri Dandasena, Sarpanch,
Mahulpali G.P. and others ......... Petitioners
Versus
State of Odisha, represented through
the Secretary, Department
of Transport and others ........ Opp. Parties
For Petitioners : Mr.Manoj Ku. Mishra
Senior Advocate
Mr.Digambara Mishra
For Opp. Parties : Mr.B.K.Sharma
Standing Counsel Transport
(For O.P.1)
Mr.P.Mishra
Addl. Standing Counsel
(For O.Ps.2 and 3)
Mr.Jagannath Pattnaik, Sr. Adv
(For O.P.4)
In W.P.(C) No.19266 of 2015
M/s.Biswajit Minerals Pvt Ltd ...... Petitioner
Versus
State of Odisha, represented through
the Secretary, Department
of Transport and others
......... Opp. Parties
For Petitioner : M/s.D.N.Mohapatra, M.Mohapatra,
G.R.Mohapatra, A.Dash and
A.K.Pattanaik
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For Opp. Parties : Mr.B.K.Sharma
Standing Counsel Transport
(For O.P.1)
Mr.P.Mishra
Addl. Standing Counsel
(For O.Ps.2 and 3)
Mr.Jagannath Pattnaik, Sr. Adv
(For O.P.4)
Mr.Manoj Ku. Mishra, Sr. Adv.
M/s.T.Mishra, J.Sahoo, and
G.K.Mohapatra
(For O.P.5)
Mr.D.Mishra and M.S.Satapathy
(For caveator)
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PRESENT:
THE HON'BLE DR. JUSTICE D.P.CHOUDHURY
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Date of hearing:08.11.2017 Date of Judgment:30.01.2018
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Dr. D.P.Choudhury, J. Since both the writ petitions arise out of common
cause of action and raise common question of law, they are being taken
up together and are disposed of by this common judgment.
2. The conspectus of the case of the petitioners' are that the
petitioners in W.P.(C) No.19933 of 2016 are Sarpanchs of 26 different
Gram Panchayats of three blocks in the district of Sundergarh and they
used the public road MDR Road-27 of the said district from Bankibahal
to Sundergarh, but due to plying of the multi-axle vehicles (18 to 22
wheelers), the condition of the road became worsen and the people of
these panchayats felt inconvenience to use such road.
3. It is alleged inter alia that on 14.10.2015, the villagers of
these Panchayats made representation to the Collector, Sundergarh and
simultaneously they agitated the matter before the Secretary to
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Government in Commerce and Transport Department. On 17.10.2015,
the Chief Engineer D.P.I. Road, basing on the report of the
Superintendent Engineer, wrote a letter to the Secretary to Government,
Works Department that the existing road is deficient to sustain plying of
18 to 22 wheelers and suggested that there should be restriction on
multi-axle vehicles. Then, the Secretary to Government, Works
Department called for a report from the concerned employees of Works
Department and on 19.10.2015, Works Department requested the
Collector to pass appropriate order under Section 115 of the Motor
Vehicles Act, 1988 (hereinafter called "the Act, 1988") restricting the
movement of multi-axle vehicles. At the same time, on 05.09.2013, the
Collector deferred the introduction of multi-axle vehicles till opening of
new mines under MCL because the MCL was utilizing the road for
transportation of coal.
4. As there was no sufficient road for transportation of general
public and other small vehicles, it was not incumbent for the opposite
parties to allow plying such vehicles. Because of the traffic congestion,
the carcinogenic pollution crops up affecting daily life of the general
public. It is the case of the petitioners in W.P.(C) No.19933 of 2016 that
at the cost of the lives of general public, there cannot be carrying of coal
by the transporters. Since the heavy vehicles magnificently violate the
pollution control laws framed under the Environment (Protection Act),
1986 and the Rules framed thereunder, the plying of multi-axle vehicles
cause serious pollution hazards because of plying of such large number
of heavy commercial vehicles.
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5. The District Collector, without following the parameters and
the pollution laws, allowed the multi-axle vehicles holding that said
vehicles can participate in transportation having no restriction from the
administration. Although there is letter of the Executive Engineer,
Sundergarh to the Collector to consider the widening of two lane to four
lane from Bankibahal to Kanika Railway but the order was passed by the
Collector allowing the multi-axle vehicles.
6. In the aforesaid writ petition, there is mention of another
writ petition, i.e, W.P.(C) No.19266 of 2015 filed by one M/s.Biswajit
Minerals Pvt. Limited. That matter was disposed of by this Court by a
Single Bench of this Court allowing the multi-axle vehicles to ply but the
said order was challenged before the Division Bench in a writ appeal
vide W.A. No.635 of 2015 wherein the judgment of this Court passed by
the Single Bench was set aside and the matter was remitted to this
Court for fresh adjudication. Since the order passed by the Single Bench
has been set aside and there is already a provision under Section 115 of
the Act, 1988 to restrict the use of vehicle by the State Government, the
effective measure should be taken by passing relevant order in that
case. So, in the aforesaid writ petitions, it is prayed to declare the road
from Bankibahal to Sundergarh as no plying zone/no traffic zone for the
multi-axle vehicles and further prayed to quash the order dated
17.10.2015passed by the Engineer-in-Chief (Civil), Odisha under Annexure-2 and order dated 19.10.2015 passed by the Joint Secretary to Government in Commerce and Transport (Transport) Department under Annexure-10.
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7. As stated above, W.P.(C) No.19266 of 2015 is also placed for fresh adjudication along with the above writ petition because of the remand order passed by the Division Bench of this Court in writ appeal. It is reiterated that some of the petitioners in W.P.(C) No.19266 of 2015 challenged the restriction upon them and that writ petition was allowed directing the Collector to make arrangement for transportation of the vehicles because due to the restriction, the business of the private individual has been affected whereas Article 19 of the Constitution of India allow for free trade and profession.
8. The above two writ petitions are like case and counter case because in W.P.(C) No.19266 of 2015, petitioner claims a direction to allow them to ply the vehicle for transportation of coal whereas in W.P.(C) No.19933 of 2016, the petitioners, being the villagers, opposed the plying of multi-axle vehicles on the road from Bankibahal in the district of Sundergarh.
9. SUBMISSIONS Mr.Manoj Ku. Mishra, learned Senior Advocate for the petitioners in W.P.(C) No.19933 of 2016 submitted that the petitioners are the villagers and affected more by plying of 16 axle vehicles on the road in question. They alleged that due to use of these multi axle vehicles, they are not able to use the road for carrying their children to the school and transporting the patients to the hospitals and also not able to go to market for purchase of their daily needs. Since the road is used by these heavy vehicles, the condition of road becomes bad and road is also not wide enough for plying of these vehicles. -6-
10. Mr.Mishra, learned Senior Advocate for the petitioners further submitted that the petitioners, being the Sarpanchs of local villages, they made representation to the Chief Secretary on 14.10.2015 expressing their difficulties which arrest their fundamental rights as enshrined under Articles 21 and 21-A of the Constitution. Similarly, the Chief Engineer, DPI and Roads, Bhubaneswar had written letter to the Engineer-in-Chief-cum-Secretary to Government, Works Department on 17.10.2015 to put some restrictions for plying of multi axle vehicles. He also drew attention of the Court to Sections 115 and 116 of the Act, 1988 where the State Government has got duty to make restrictions for use of the road by the class and classes of vehicles. The Division Bench of this Court in W.A. No.635 of 2015 expressing concerned over the issue in question with regard to the exercise of power under Section 115 of the Act, 1988 for imposing restriction on plying of multi axle vehicles, remanded the matter to this Court by setting aside the judgment passed by the learned Single Judge in W.P.(C) No.19266 of 2015, which is also being disposed of along with this writ petition. So, the present petitioners support the plea of the appellants in W.A. No.365 of 2015 arising out W.P.(C) No.19266 of 2015.
11. Mr.Manoj Kumar Mishra, learned Senior Advocate for the petitioners further contended that the Court, in order to find out the factual scenario, appointed a Multi Technical Committee vide order dated 09.01.2017 to inspect the road again and give a report to the Court. The Multi Technical Committee had visited the spot in question and given its report in two parts. According to him, the Multi Technical Committee has -7- also found that the road condition is not good enough for plying of multi axle vehicles and he referred to the letter dated 17.10.2015 (Annexure-
11) wherein the Executive Engineer, Sundergarh (R &B), Sundergarh wrote letter to the Chief Engineer, (D.P.I & Roads), Odisha, Bhubaneswar for improvement of the existing road to carry such heavy traffic so as to ply multi axle vehicles to avoid accidents and traffic congestions.
12. Further it is submitted by Mr.Mishra, learned Senior Advocte for the petitioners that in the counter affidavit, the opposite parties 2 and 3 also admitted that the condition of the road is not good enough and MCL, Vasundhara has also agreed to deposit Rs.45.00 lakhs as temporary restoration for the damages. As such until and unless the condition of the road is improved, it is difficult to allow the multi axle vehicles to ply over the road in question. He drew attention of the Court to the observation of this Court in its order dated 16.07.2012 passed in W.P.(C) No.11744 of 2012 wherein this Court had been pleased to observe that there is heavy traffic problem for which local people at large of the nearby villages are suffering and they find it difficult to attend hospitals, district office, schools and colleges due to blockage for which this Court directed the District Collector to conduct a meeting with the high officials of MCL and take suitable measures so as not to cause much problem to the public at large and there should be restriction for plying of other heavy vehicles. He also submitted that Article 21 of the Constitution gives the mandate and guarantees the commuters a hazard free road. When the right of the public/community is pitted against -8- Article 19(1)(g) of the Constitution, the community right shall have to prevail over the individual right as contained in Article 19(1)(g). In support of his contentions, he relied upon the decision of the Hon'ble Supreme Court in the case of Zakir Hussain and others -V- State of Maharashtra and another; AIR 2001 Bom 21. Finally, he argued that letter dated 19.10.2015 issued by the State Government in Commerce and Transport (Transport) Department to the Collector, Sundergarh to take immediate appropriate action under Section 115 of the Act, 1988 and other relevant sections as would be necessary under the said Act till improvement of the road as recommended by the Engineer-in-Chief-Cum-Secretary to Government, Works Department vide Annexure-10 and the same letter should be implemented at once. Lastly, he submitted that in the alternative, the Collector, Sundergarh may be directed to pass necessary order for passage of multi axle vehicles at a particular hours for not causing any undue hardship to the general public to perform their day-to-day work by using the road in question.
13. Mr.Mohanty, learned Senior Advocate for the opposite party no.5 submitted that the writ petition is not maintainable as none of the villagers between Bankibahal to Sundergarh has filed this writ petition as petitioner for which such writ petition is not maintainable. He also drew the attention of the Court to W.P.(C) No.21100 of 2014 wherein this Court has made observation that multi axle vehicles have got also right to earn their livelihood and if multi axel vehicles would run, it would reduce number of other vehicles to carry the volumes of -9- materials. So, in that writ petition, this Court directed the opposite party-authority to make provision for smooth functioning of multi axle vehicles. So, the petitioners cannot restrict plying of multi axle vehicles which on the other hand, carry the coal for economic growth of the country. The fundamental right of the opposite party no.5 has also to be respected by the opposite party-State and District Authority. He drew attention of the Court to Article 19(1)(d) and (g) of the Constitution. It is for the State Government and District Authority to pass suitable order under Section 115 of the Act, 1988 for use of the road to avoid any inconvenience to any public or individual. Under no circumstance, the fundamental right of the petitioners to carry out their profession on their trade can be restricted or violated.
14. Mr.J.Pattnaik, learned Senior Advocate for the MCL submitted that the multi axle vehicles are required to carry the coal by using the road in question. Since the multi axle vehicles are carrying huge quantity of coal, there is no necessity of more numbers of small heavy vehicles (Trucks) to carry material in piecemeal. According to him, MCL is always committed for development of the road. He referred to Annexures-2 and 10 wherein stress has been laid on commitment of MCL to construct a new coal corridor (4-lane road) from Bankibahal to Bhedabahal for which MOU has been signed with MCL authority by the State Government and for that, MCL has already deposited Rs.45.00 lakhs as available from Annexure-10. Not only the MCL has committed to develop the road but also it has got commitment for the local villagers to commute properly for their livelihood. He referred to the
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counter affidavit filed by the Executive Engineer, (R&B) Division, Sundergarh wherein the State Government has admitted that the construction of coal corridor from Bankibahal to Bhedabahal with Rs.398.00 crore has been sanctioned on 12.07.2017 and tender process has been initiated during October, 2014. After construction of coal corridor, all the traffic will move through the dedicated coal corridor from bankibahal to Bhedabahal.
15. Mr.Pattnaik, learned Senior Advocate for the MCL further contended that MCL has also contributed money for Vasundhara Coal Mines to Jharsuguda and Bankibahal to Kanika railway siding. So, appropriate order may be passed for not causing any disturbances to MCL to carry on business in the best interest of the Nation.
16. Mr.B.K.Sharma, learned Standing Counsel for the Transport Department submitted that Articles 19 and 21 of the Constitution do not overlap with each other. Article 19(1)(d) and (g) although allow freedom to move the territory and also for a free profession to carry on for the livelihood but Clasue-6 of Article 19 of the Constitution gives power to the State Government to put reasonable restriction. According to him, Section 115 of the Act, 1988 read with Rule 173 of Motor Vehicles Rules allow the State Government and District Authority to put reasonable restriction for use of the road for the larger interest of the public. For that, the Transport Department issued necessary instruction from time to time to the District Collector to pass necessary orders for movement of the vehicle of specific class or classes in order to reduce the accident in a particular area. Not only this but also the State Government can
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cause appropriate traffic signals to be erected under Section 116 of the Act, 1988 at a suitable place.
17. Mr.Sharma, learned Standing Counsel for the Transport Department further contended that the Transport Department already issued a letter under Annexure-10 to the District Collector to put some restrictions so that neither the villagers nor the transporters will face any problem but the restrictions must be satisfying the doctrine of reasonableness. So, the District Collector is authorized to issue necessary order after taking the fact and circumstances into consideration so that neither the transporters nor the public would suffer. He emphasized on issuance of order under Section 115 of the Act, 1988. After 2005, there has been many improvements of the road as on the date in 2017. So, the State Government in Transport Department has no any consequences to follow except the Collector to consider all factors and pass necessary orders.
18. Mr.P.Mohapatra, learned Additional Standing Counsel for the State submitted that according to the affidavit of the Executive Engineer, the work has been completed and there is no any basis of the contention of the learned counsel for the petitioners in both the writ petitions. He, agreeing with the contention of Mr.Sharma, learned Standing Counsel for the Transport Department, submitted that the State Government has already authorized the Collector to issue necessary order under Section 115 of the Act, 1988. Accordingly, the Collector is to implement the instruction of the State Government.
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19. Since the same issue is involved in W.P.(C) No.19266 of 2015, the above arguments have been adopted by respective counsels even if some of the petitioners in the said writ petition are opposite party to W.P.(C) No.19933 of 2016.
20. POINT FOR CONSIDERATION The main point for consideration is as to whether the road from Bankibahal to Sundergarh can be restricted for plying of multi axle vehicles as per Annexure-10?
21. DISCUSSIONS It is not in dispute that the road from Bankibahal to Sundergarh is motorable road used by the local villagers and transporters. It is admitted fact that the multi axle vehicles by opposite party no.5 were allowed to ply on the road but the local representative of the people expressed their grievance as to inconvenience faced by them to the Authority. It is not in dispute that due to complain by the public, the Executive Engineer (R&B) Division, Sundergarh, on 17.10.2015, gave a report to the Superintendent Engineer to put certain restriction on the heavy truck and multi axle vehicles till the existing road is repaird. It is also admitted fact that basing on the report, Secretary to Government, Works Department wrote a letter on 19.10.2015 to the District Collector to exercise power under Section 115 of the Act, 1988 and other sections so as to restrict the movement of the multi axle vehicles till the condition of the road is suitably improved. The present opposite party no.5 in W.P.(C) No.19933 of 2016 earlier filed W.P.(C) No.19266 of 2015 before this Court and this Court, vide
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order dated 26.10.2015, disposed of the said writ petition. Operative portion of the order dated 26.10.2015 is quoted hereunder for better reference:
"26.10.2015.
Xx xx xx xx Having perused the pleadings and documents produced by the petitioner and O.P.4 and having heard the learned counsel for the respective parties, it appears that the concerned road is maintained by MCL and any restriction on transportation of coal shall have serious implications not only on MCL's productivity but also on the industries and other end-users including power plants. Ultimately, it will have a serious impact on public interest.
Undisputed, use of high capacity vehicles reduces traffic congestion, road safety and environmental pollution while accelerating the economic progress. Any restriction has to have reasonable nexus with rights granted under the Constitution. It is evident that the letter under Annexure-2 had been issued without considering all these aspects by giving an opportunity of being heard to all the stake holders.
Therefore, the impugned order is quashed and the writ petition is disposed of accordingly.
It is made clear that any damage to the road shall be repaired by the MCL and the Collector of the district shall monitor the same.
Since this order has been passed without noticing the MCL, which is not a party to the present proceeding, it is open to it to get itself impleaded as a party and seek variance of this order.
A copy of this order along with a copy of the writ petition be communicated to the Collector, Sundergarh, who is the Chairman of the RTA, for compliance through a Special Messenger, cost of which shall be assessed and deposited by 4th November, 2015."
From a perusal of the aforesaid order, it appears that the Court has found to have taken into consideration the public interest with regard to the productivity of the MCL and other interest. In that order, the doctrine of reasonableness qua the rights guaranteed under the Constitution have also been discussed. However, the judgment of the learned Single Judge was carried in Writ Appeal No.635 of 2015 and the Division Bench of this Court remanded the writ petition allowing the opposite party to be heard in the matter as they are also users of the
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road. So, the remand order again brought the matter to square one for which the present judgment also is taken care along with W.P.(C) No.19933 of 2016 filed by some Sarpanchs of local panchayats.
22. The impugned letter dated 19.10.2015 of the Government in Commerce and Transport (Transport) Department vide Annexure-10 is reproduced below:
"Government of Odisha Commerce & Transport (Transport) Department No.LC-TR-41/2014/6785/T dated 19.10.2015.
From Sri K.C.Sahoo, OAS(S) Joint Secretary to Government To The Collector-cum-Chairman,RTA Sundergarh.
Sub:- Movement of Multi-Axle Vehicles (especially Trailers of 18 & 22 wheelers) in Sundergarh to Bankibahal restriction thereof.
Sir,
I am directed to intimate you that a number of
representations were received from the
Perons/Organizations/Sundergarh Truck Owners' Association etc. To impose restrictions on movement of Multi-Axle Vehicles especially 18 & 22 wheelers on Sundergarh to Taperia road under R & B Division, Sundergarh on various grounds. Thereafter, Works Department were requested to look into the matter for further action.
In the meantime, E.I.C.-cum-Secretary to Government, Works Department has furnished the present status of the road and recommended to impose restriction on plying of Multi-Axle vehicles (especially Trailers of 18 & 22 wheelers or longer dimention) on the above mentioned road, i.e. from Sundergarh to Bankibahal considering inadequate crust, dilapidated condition of Carriageway/culverts/deficient horizontal curves etc. I would, therefore, request you to take immediate appropriate action as per Section 115 and other relevant sections as would be necessary under the M.V. Act, 1988 till improvement of the road as recommended by E.I.C.-cum- Secretary to Government.
Yours faithfully Sd/-
Joint Secretary to Government"
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The aforesaid impugned letter only has authorized the Collector-cum-Chairman, Sundergarh to pass necessary order under the Act, 1988 till the improvement of the road as recommended by the E.I.C.-cum-Secretary to Government, Works Department. The letter of the Executive Engineer, Sundergarh (R&B) Division, Sundergarh is placed in the following manner:
"OFFICE OF THE EXECUTIVE ENGINEER SUNDERGARH (R & B) DIVISION, SUNDERGARH Letter No.6062/W Date.17.10.2015 To The Chief Engineer, (D.P.I & Roads) Odisha, Bhubaneswar Sub: Movement of Multi Axle Vehicles of MDR-27 from Sundergarh to Taparia under (R&B) Division, Sundargarh:-
Submission of Report Reference: Letter No.430002 dated 17.10.15 of S.E. Roads, Odisha, Bhubaneswar Sir, In inviting a kind reference to the subject cited above, I am to intimate that the Sundergarh to Taparia Road, i.e, Sundergarh to Bankibahal is of 40 Km length comprising of MDR-27, MDR-29 & ODR (MDR-27=22 KM, MDR-29=13.00 KM & ODR=5 Km). This road was handed over to MCL in the year 1998 and the road is now being maintained by MCL.
The point wise report is described below for kind reference
1. The road Sundergarh to Bankibahal Road was entrusted to the MCL authority for improvement vide letter No.10053 Dated 07.04.1998 of the Deputy Secretary, Works Department, Government of Odisha, and no MoU has been signed at that time.
2. The existing road was developed by MCL in the existing alignment within exiting horizontal curves and Vertical curves.
The existing crust thickness of the road varies from 400mm to 500mm. Now considering the traffic density & CBR of the subgrade, the crust thickness should be from 600 mm to 750mm. The horizontal curves of the road needs to be improved. Secondly there are 82 Nos. of existing CD on the road excluding the bridge. The foundation and sub-structure of the maximum cross drainage are of boulder masonary & road width of the culvert varies from 7.50 Mtr to 10 Mtr. The culvert should be reconstructed to facilitate the existing traffic of 5303 Nos (CVPD). There are 2 Nos. Of Major Bridge and 5 Nos. Minor bridges with the carriageway of 7.5 Mtr width. The major bridges were constructed in the year 1962.
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3. There are 4 major villages on the road namely Ujjalpur, Chhatenapli, Balichuan and Kundara and the existing width of the carriageway is 7.00 Mtr. Since there is constraint of carriageway in the village area, the movement of Multi Axle vehicles (18 to 22 wheelers) are creating problem for the daily users of the road.
4. As per traffic census held on 12/2013, the PCU of the road was 19301. As per MoRTH guidelines with PCU more than 13000 in the rolling areas, it is recommended that road width should be 10 Mtr width & the formation width of the road be 12 Mtr. The existing formation varies from 9 Mtr to 12 Mtr which also disturbs the movement of vehicles. Further it is to mention that, there are 1383 Nos. Of tress adjacent to the BT edge of road which is causing problems to the movement of vehicles with longer dimension.
5. To cater the present traffic volumes, it has been proposed to construct a new Coal Corridor (4-lane road) from Bankibahal to Bhedabahal for which MoU has been signed with MCL authority.
6. At present, it has been proposed to improve the road and widened the carriageway of the road from 7.00 mtrs to 10.00 mtrs for which an estimated amounting to Rs.75,61,21,142/- has been submitted to the MCL vide this office No.5136 Dated 28.08.2015. But no work has been taken up till now.
Recommendation Considering the points like standing trees on the road side, dilapidated condition of the Culverts, deficient Horizontal Curves, the existing road is not sufficient to carry such heavy traffic, so the road may be improved to the Ministry Standard for plying of Multi Axle Vehicles (Traller of 18 to 22 Nos. Of Wheels with longer dimension) to avoid accidents & traffic congestions.
This is for favour of your kind information & necessary action. Encl:1) Traffic Census report
2)Existing crust detail of the road.
3)Copy of letter No.10053 dated 07-04-1998 of Works Department.
Yours faithfully, Sd/-Executive Engineer Sundergarh (R&B) Division"
The aforesaid two letters under Annexures-10 and 11 are only advisory in nature giving authority to the Collector to pass orders.
The Collector, Sundergarh, opposite party no.3 is absolutely free to pass any order by exercising power under Section 115 of the Act, 1988.
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Before exercising the power, what should be the criteria for passing such order under the provision of the Act, 1988?
23. Articles 19(1)(d), 19(1)(g) and 21 of the Constitution is placed below in the following manner for better reference:
"19. Protection of certain rights regarding freedom of speech etc:
(1) All citizens shall have the right Xx xx xx
(d) to move freely throughout the territory of India;
Xx xx xx
(g) to practise any profession, or to carry on any occupation, trade or business Xx xx xx
21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law"
From the aforesaid provision of the Indian Constitution, it is clear that right to free movement throughout the Indian territory is enshrined under Article 19(1)(d) of the Constitution which contemplates nothing else but absence of inter-State restrictions, which might prevent citizens of the Indian Union moving from one State to another. Therefore, Article 19(1)(d) of the Constitution guarantees the free right to all citizens to go wherever they like in the Indian territory without any kind of restriction whatsoever. They can move not merely from one State to another but from one place to another within the same State and what the Constitution lays stress upon is that the entire Indian territory is one unit so far as the citizens are concerned. In Mithilesh Garg etc. etc. -V- Union of India and others etc. etc.; AIR 1992 SC 443, Article 19(1)(g) with regard to the profession or practice a citizen has right to carry on has been well explained by the Hon'ble
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Supreme Court at paragraph-10 of the said judgment and the same is given below in the following manner:
"Article 19(1)(g) of the Constitution of India guarantees to all citizens the right to practice any profession, or to carry on any occupation, trade or business subject to reasonable restrictions imposed by the State under Article 19(6) of the Constitution of India. A Constitution Bench of this Court in Saghir Ahmad v. The State of U.P. and Others, (1955) 1 S.C.R. 707 held that the fundamental right under Article 19(1)(g) entitles any member of the public to carry on the business of transporting passengers with the aid of the vehicles. Mukerjea, J. speaking for the Court observed as under:
"Within the limits imposed by State regulations any member of the public can ply motor vehicles on a public road. To that extent he can also carry on the business of transporting passengers with the aid of the vehicles. It is to this carrying on of the trade or business that the guarantee in Article 19(1)(g) is attracted and a citizen can legitimately complain if any legislation takes away or curtails that right any more than is permissible under clause (6) of that article."
It is thus a guaranteed fight of every citizen whether rich or poor to take up and carry on, if he so wishes, the motor transport business. It is only the State which can impose reasonable restrictions within the ambit of Article 19(6) of the Constitution of India. Section 47(3) and 57 of the old Act were some of the restrictions which were imposed by the State on the enjoyment of the right under Article 19(1)(g) so far as the motor transport business was concerned.........." With due regard to the aforesaid decision, it is clear that Article 21 of the Constitution gives every right to life and property and the same can be only restricted by reasonable law duly communicated or processed. All these provisions have got one way or other restrictions for the public interest. It is not true to say that Article 21 of the Constitution takes care of Article 19 in all cases. The difference between Articles 19 and 21 is that Article 19 can be exercised in certain cases by a citizen whereas Article 21 is directed against any person with regard to livelihood or life.
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24. Now adverting to the present case, when the public have got right to use the road for their livelihood, the transporter has got freedom of profession or carry on business for their livelihood by moving from State to State. All these matters can be restricted by Clause (6) of Article 19 of the Constitution where the freedom is available under Article 19(1)(d) and (g), as discussed above in the aforesaid judgment of the Hon'ble Supreme Court. Therefore, it is pertinent to observe that Section 115 of the Act, 1988 has been enacted with avowed object to restrict the movement of any specific class or classes of vehicles to minimum subject to condition that public road or the particular area, the object is only to protect the interest of public safety or convenience. Section 115 of the Act, 1988 is placed below for reference:
"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."
The aforesaid provision clearly envisages that before restricting the use of vehicles, the following conditions must be satisfied:
"(1) Whether the restriction is necessary for the interest of public safety and convenience; and
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(2) Whether the nature of road and bridge requires to put certain restrictions."
The above restriction as it appears should be aimed only to facilitate the doctrine of reasonableness. The doctrine of reasonableness is a bigger phenomenon because the public interest is also involved to evaluate the reasonableness. The public interest is not necessarily to take the interest of individual but have the public and society. The public interest is also to be considered where the national interest is also embodied. When the convenience of public to be taken into consideration, the national interest for economic growth of the country is equally to be balanced. If the nation's interest is taken into consideration, the public interest would be subdued. Be that as it may, in the instant case it has to be seen whether the two factors, as discussed above, are quietly available to issue order under Section 115 of the Act, 1988.
25. It is the contention of the learned Senior Advocate for the petitioners that they are facing difficulties to go to school, market and hospital due to plying of the multi axle vehicles. At the same time, MCL also requires carriage of multi axle vehicles to carry more quantity of coal to improve the economic growth of the country. Petitioner being owner of such multi axle vehicles have also got right to profession to maintain their livelihood. So, the requirement of all these stake holders, who used the road, have to balance well keeping the national interest which is above all the interest of individual.
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26. Next item comes about the nature of road. To ascertain the condition of the road, a Multi Technical Committee was formed by order of this Court and it had submitted its report to this Court. The report of the said Committee has been divided into two parts. The first part is signed by the Engineer and they have observed that multi axle vehicles can ply on this road but the regular maintenance of the road is needed at the instance of MCL and duly ensured by the district administration for its sustainability. Their report shows that they have considered the technical parameters showing feasibility of plying of multi axle vehicles. On the other hand, second part of the report of the technical committee duly constituted by Advocates of this Court shows that until the condition of the road improved, multi axle vehicle should not be allowed to ply. Finally, the Advocates' Committee opined that till the road conditions are not improved, the multi axle vehicles should not be allowed to ply but if at all for the larger interest of the mines, the same are required to operate, may be operated under the suitable control or supervision. Since the report has been divided between the Engineers and the Advocates, who consist of Technical Committee, the report has no any significance except the technical parameters are filtered to opine on the road condition. But perusal of the same, it appears that the Technical Committee has visited the spot on 24th to 26th February, 2017. It appears that the road has got 7 metre average width and there is no critical curve. However, from the pleadings and report, it appears that the road requires further development and MCL is committed to improve the condition of the road by releasing the fund. It is reported that the
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Executive Engineer of the concerned Divisions has found the coal corridor to be completed for which Rs.3.98 crore has been sanctioned and tender process has been on. So, it is not a fact that road condition is so bad to put full restriction on plying of multi axle vehicle.
27. The observation of this Court made in W.P.(C) No.11744 of 2012 can be taken into consideration as this Court was considering the similar issue in the district of Sundergarh. In paragraph-8 of the said order, their Lordships have observed in the following manner:
"8.......... Further till completion of the aforesaid 4 lane road, the MCL shall take all necessary steps to repair the existing road properly. As there is heavy traffic problems for which local people at large of the nearby villages are suffering and they find it difficult to attend hospitals, district offices, courts, schools and colleges due to blockage, for this purpose we direct O.P.No.2 to conduct a meeting with the High Officials of the MCL and choose and fix the suitable hours to ply the coal loaded vehicles of the MCL or the contractors engaged by it for transporting the coal, which will not cause much problems to the public at large and direct the MCL/Vehicles Operators/Contractors not to use the vehicle at the restricted hours. The O.P. No.2 must see that the said transport vehicles are running without affecting the use of the road by the general public and conditions may be imposed not to create air and water pollution at the time of transportation of minerals. If there will be any violation to those conditions, stringent action shall be taken against such erring persons(s)."
The above order was passed on 16.07.2012. Since the road condition has been improved in the meantime, further improvement is only required keeping in view the socio-economic safeguards of the local people. Thus, the balance between the development of economic of nation and the need of the people using such road should be struck down to arrive at a decision by the Administrative Authority.
28. No doubt, Section 115 of the Act, 1988 is also considered by the Hon'ble Supreme Court in the case of M.C. Mehta -V- Union of
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India and others; (1997) 8 SCC 770 and at paragraph-3 of the said judgment, Their Lordships have observed in the following manner:
"3.In our opinion, the provisions of the Motor Vehicles Act, 1988, in addition to the provisions in the existing laws, for example, the Police Act and the Code of Criminal Procedure, confer ample powers on the authorities to take the necessary steps to control and regular road traffic and to suspend/cancel the registration or permit of a motor vehicle if it poses a threat or hazard to public safety. It need hardly be added that the claim of any right by an individual or even a few persons cannot override and must be subordinate to the large public interest and this is how all provisions conferring any individual right have to be construed........"
29. Recently, the road safety is taken the top priority as the accidents have been increasing on the road due to multi vehicular movements, careless driving, condition of the road becoming deplorable due to lack of maintenance and untimely completion of the projects and increase of commuters on the road. Therefore, the Hon'ble Supreme Court laid stress on the Road safety. This aspect has been highlighted by the Hon'ble Supreme Court in the case of S.Rajaseekaran -V- Union of India and others (Writ Petition (Civil) No.295 of 2012) disposed of on 30.11.2017.
The aforesaid view of the Hon'ble Supreme Court must be kept in view while passing the order under Section 115 of the Act, 1988.
30. In terms of the above discussion, this Court is of the view that the restrictions must be imposed basing on the doctrine of reasonableness and public safety qua the national interest for economic growth of the country. Therefore, the restrictions should be reasonable which would cater to the need of public and multi axel vehicle owners to use the road. The point is answered accordingly.
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31. CONCLUSION It is prayed in W.P.(C) No.19933 of 2016 to issue writ of Mandamus to declare the road in question as no plying zone/no traffic zone for multi axle vehicles and further it is prayed to direct the opposite parties to issue restrictions/prohibitions on plying of multi axle vehicles in the aforesaid writ petition in terms of Annexure-10. At the same time, it is prayed in W.P.(C) No.19266 of 2015 to quash the letter dated 19.10.2015 putting no restriction on plying of multi axle vehicles.
32. In view of the aforesaid analysis, this Court is of the view that the interest of the petitioners and opposite party no.5 in W.P.(C) No.19933 of 2016 must be balanced by issuing appropriate order by opposite party no.3-Collector in both the writ petitions containing certain suitable conditions while the attention is equally to be given to the condition of road in question and its safety for commutation of all including public. Therefore, this Court direct as under:
A. The road from Bankibahal to Sundergarh must be widened by opposite party no.4-MCL in both the writ petitions after discussing with the State Government for full fledged coal corridor as per the direction of this Court in W.P.(C) No.11744 of 2012 within a period of two months from the date of this judgment and the work must be completed by the end of 2018 on war footing basis. It is made clear that MCL would make allotment of amount for such work in addition to money already deposited;
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B. The MCL would maintain the existing road directly by its own machinery on every three months and any sort of deficiency in service would be accountable in judicial side; and C. Till the above directions are complied, the opposite party no.3-Collector in both the writ petitions would issue an order under Section 115 of the Act, 1988 by putting appropriate restrictions for plying of class of vehicles within a period of two months from today and one of the conditions should be that the multi axle vehicles would only ply from 11 PM to 6 AM and keep vigil over the movement of other vehicles to avoid any accident during such time.
In addition to these directions, the Collector, Sundergarh, opposite party no.3 in both the writ petitions would also keep in mind the directions of the Hon'ble Supreme Court in the case of S. Rajaseekaran -V- Union of India and others decided on 30.11.2017 while passing the order as directed above.
Both the writ petitions are disposed of accordingly.
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Dr.D.P.Choudhury,J.
Orissa High Court, Cuttack The 30th Jan,2018/Nayak