Bengal Bus Syndicate v. State of West Bengal — 1985 DIGILAW 346 (CAL)

ORDER The petitioner is a registered Association of private bus owners and operators. The challenge in the writ petition is as to the fixation of fare structures of stage carriages by the State Government. The fare Structure has been set out in annexure ‘G’ to the petition. It appears that the Regional Transport Authority, Howrah, in a meeting held on 7th May, 1985 resolved to revise the bus fares. This was done in the manner indicated in a letter dated 14th May, 1985 written by the Secretary, Regional Transport Authority to the various route committees of the State. 2. An Affidavit has been filed on behalf of the respondents affirmed by Prasanta Kumar Bose, the Deputy Secretary to the Government of West Bengal, Transport Department, on 8th August, 1985. It has been stated in paragraph 37 of the affidavit that consequent upon the increase in the administered prices of motor spirit, high speed dorsal and lubricants as embodied in the budget to the Union for the year 1985-86 as well as the increase in the cost of transport accessories since 1983. The various bedies of transport perators submitted a number of representations to the State Government and the Regional Transport Authority, Calcutta Region, requesting an upward revision of the existing fare structure. The State Government, after considering the representations, felt that some upward revision of the fare structure had to be done. Therefore, the Transport Minister assisted by his officials and one Dr. Asim Dasgupta, member, State Planning Board, held three meetings in succession with the representatives of the various organizations of the private bus operators including the petitioners As no agreed decision could be arrived at in the meetings due to the unreason able attitude of the representatives of the petitioners, the State Government went ahead to consider the matter on its own keeping in view all aspects of the issue and suggested to the R.T.A. Calcutta Region to enhanced fare was to be made effective from 15th May, 1985, or as early as possible thereafter. These suggestions were communicated to the Chariman, R.T.A. Calcutta Region, in the Transport Secretary’s letter No. TS-601 of 3.5.1985 Thereafter, the R.T.A. Calcutta Region, held a meeting on 6.5.1985 and adopted a resolution to implement upward revision of fare structure for buses and other types of transport vehicles with effect from 15.5.1985 as per guidelines given by the State Government. These suggestions were communicated to the Chariman, R.T.A. Calcutta Region, in the Transport Secretary’s letter No. TS-601 of 3.5.1985 Thereafter, the R.T.A. Calcutta Region, held a meeting on 6.5.1985 and adopted a resolution to implement upward revision of fare structure for buses and other types of transport vehicles with effect from 15.5.1985 as per guidelines given by the State Government. It has been stated that these steps were taken in compliance with the provisions of S. 43 of the Motor Vehicles Act, 1939 "in spirit and substance." It has been argued that the similar procedure was followed in the past und no objection was received from any quarter about the procedure followed. 3. The contention of Mr. Deb is that the revised fare structures has been fixed in complete disregard to the requirement of S.43. The position has in effect been admitted in the affidavit-in-opposition. Section 43 provides : “43. Power of State Government to control road transport – (1) A State Government, having regard to – (a) the advantages offered to the public, trade the industry bny the development of motor transport, and (b) the desirability of co-coordinating road and rail transport, and (c) the desirability of preventing the deterioration of the road system, and (d) the desirability of preventing uneconomic competition among motor vehicles, may, from time to time by notification in the Official Gazette, issue directions to the State Transport Authority – (i) regarding the fixing of fares and freights concluding the maximum and minimum in respect thereof for stage carriages, contract carriages and public carriers ; (ii) (iii) (iv) Provided that no such notification shall be issued unless a draft of the proposed directions is published in the Official Gazette specifying therein a date being not less than one month after such publication on or after which the draft will be taken into consideration and any objection or suggestion which may be received has, in consultation with the State Transport Authority, been considered after giving the representatives of the interests affected an opportunity of being heard” 4. The contention of Mr. Deb must be upheld. The language of S.43 of the Motor Vehicles Act, 1949, is clear and unequivocal. The control of road transport has been vested in the State Government by this section. The contention of Mr. Deb must be upheld. The language of S.43 of the Motor Vehicles Act, 1949, is clear and unequivocal. The control of road transport has been vested in the State Government by this section. In exercising control over the road transport, the State Government must have regard to the advantage offered to the public, trade and industry by the development of motor transport, coordinator of road and rail transport, desirability of preventing the deterioration of road system and also the desirability of preventing uneconomic competition among motor vehicles. The State Government has been authorised to fix the fares and freights for stage carriage, contract carriages and public Carriers. But in doing so, the State Government must bear in mind the objects set out in S 43. To ensure that the, objects are properly implemented, an important safeguard has been inserted in the proviso to S. 43. The proviso requires that no notification fixing or revising the fare structure shall be issued unless a draft of the proposal is published in the Official Gazette. The object of publication of the draft is to enab1e the State Government to receive objections and suggestion. It is only after taking into consideration the objections, suggestions and after consultation with the State Transport Authority and after giving the representatives of the interested parties an opportunity of being heard that a notification can be issued under S. 43(1)(ii) revising the fare structures of the stage carriages. 5. The argument on behalf of the State Government is that in the case, the various representatives of the bus operators made repress nations and they were given full hearing for three separate days. The object of the proviso was thereby achieved. Under the circumstances, it was not necessary to issue a draft of the proposed notification. 6. I am unable to accept this contention on behalf of the State. The requirement of publication of a draft in the Official Gazette is mandatory. Atleast one month’s notice is to be given of the proposal which the Government wanted to implement. The right to raise objections to make suggestions is not confined to the representatives of the bus operators. Who actual want and saw the Transport Minister. There may be other interested parties and organizations. 7. Atleast one month’s notice is to be given of the proposal which the Government wanted to implement. The right to raise objections to make suggestions is not confined to the representatives of the bus operators. Who actual want and saw the Transport Minister. There may be other interested parties and organizations. 7. Moreover, the proviso requires the State Government to publish the draft proposals at least one month in advance and take into consideration the objections and suggestions made to the proposal. In other words, the proposed fare revision must be published and thereafter, the objections must be invited. In the case, some discussion took place between representatives of various organistations and the Government before the notification was issued. It is not even the case of the Government that the Government had decided upon the proposed fare structure and places it before the representatives of the various organizations and heard their objections and then published the final notification. There is no suggestion in the affidavit of Prasanta Kumar Bose, Deputy Secretary to the Government of West Bengal that the Government discussed the proposed fare structures with the representatives of the various organizations and thereafter, issued the notification In fact, it does not appear that the Government ever disclosed the proposed fare structures to anybody before the notification was actually issued. 8. I am unable to uphold the contention that the requirement of S. 43 have been substantially complied with. Moreover, the Act requires publication of a draft before any final decision has been taken. The procedure is laid down in the very section which has empowered the State Government to fix the fare structures of stage carriages. Section 43 has not only empowered the State Government to fix the fare structure but has also laid down the procedure for exercise of that power. In my judgment the State Government is not free' to depart from the procedure laid down by the statute and devise a procedure of its own for revision of fare. 9. In the affidavit of Prasanta Kumar Bose, Deputy Secretary to the Government of West Bengal, it has been asserted that similar procedure was followed in the past and no objection was received from any quarter. This really is no answer to the question that has been reised. The Government may have followed a wrong procedure in the past. 9. In the affidavit of Prasanta Kumar Bose, Deputy Secretary to the Government of West Bengal, it has been asserted that similar procedure was followed in the past and no objection was received from any quarter. This really is no answer to the question that has been reised. The Government may have followed a wrong procedure in the past. When the procedure is challenged in a Court of law, it has to be shown that the procedure was in conformity with the requirement of the section Moreover, on behalf of the petitioner, my attention was drawn to a gazette notification at the Government of West Bengal published on February 14, 1983. That notification was issued in compliance with the requirement of the proviso to S.43(1) and contained proposals for fixation of minimum freight in respect of public carriers as specified therein. In that notification, it was clearly stated that it was a draft for the information of persons likely to be affected thereby. It was recited in that notification : “The draft will be taken into consideration on or after the 11th April 1983 and any objection or suggestion with respect thereto which may be received by the undersigned before the 31st March 1983, shall, in consultation with the State Transport Authority, West Bengal, be considered after giving the representatives of the interests affected by the proposed direction in opportunity of being heard.” 10. It is difficult to accept the contention that the procedure laid down in the proviso to S. 43(1) was not followed by the West Bengal Government in the past. 11. It was also argued on behalf of the State that when the budget proposal come, there was a sudden rise in the price of petroleum and the State Government has no alternative but to take this urgent step for the benefit of the transport operators. This argument again is of no substance. The Finance Bill was introduced in the Lok Sabha on the 16th March 1985. The impugned notification about the revised fare structure was issued only on 14th May, 1985. On behalf of the writ petitioner, it was pointed out that other State Government had no difficulty in revising the fare structures in conformity with the provisions of S.43 of the Motor Vehicles Act. The impugned notification about the revised fare structure was issued only on 14th May, 1985. On behalf of the writ petitioner, it was pointed out that other State Government had no difficulty in revising the fare structures in conformity with the provisions of S.43 of the Motor Vehicles Act. My attention was drawn in particular to the notifications that were issued by the State of Bihar and also the State of Orissa in this regard. 12. On behalf of the writ petitioner, it was also argued that S. 43 also requires the state to consider the views or the State Transport Authority and require, the State Government to issue directions to the State Transport Authority regarding the fixation of fares and freights for such carriages It has been-argued that the State Transport Authority has been completely side tracked in this case This argument is also of substance. 13. It is well settled that the power conferred by a statue must be exercised in the manner laid down by the statute. In the case of Nazir Ahmed v. King Emperor AIR 1936 Privy Council 253, it was held at page 257 : - “Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden” 14. In the instant cases, the State Government has followed a forbidden method to implement the power conferred by S.43. It may be noted that the principle enunciard in Nazir Ahmed’s case has been approved and applied by the Supreme Court in a number of cases. In the case of Ramchandra to Nazir Ahmed’s case. The Supreme Court applied the rule and quoted with approval a passage from Maxwell’s Interpretation of Statutes 11th Edition, pages 362-363 : - “The whole aim and object of the legislature would be plenty defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other.” 15. In view of the aforesaid, the writ petition must succeed. 16. An argument was made that some of the members of the organization of the writ petitioners were already charging fares according to the revised rates. This argument, even if factually correct, will be of no avail to the respondents. In view of the aforesaid, the writ petition must succeed. 16. An argument was made that some of the members of the organization of the writ petitioners were already charging fares according to the revised rates. This argument, even if factually correct, will be of no avail to the respondents. The allegation is that the fare structure have been fixed by not following the procedure laid down by the Act. There cannot by any question of estoppel against the statue. Moreover, the allegation is not even that all the members of the petitioner’s orgainsation are charging bus fares according to the revised rates. 17. In the premises, this writ petition succeeds. Let a writ in the nature of Madamus be issued in terms of prayers (a), (b) and (c). It is however, made clear that in order to prevent break down of transport service, the impugned fare structures may be continued for a period of three months. The respondents, however, in is follow the procedure laid down by the law and fix a proper fare structure in the manner prescribed by S.43(1)(i) of the Motor Vehicles Act. There will be no order as to costs. Petition allowed.