Research › Search › Judgment

Calcutta High Court · body

2001 DIGILAW 254 (CAL)

Shambhu Prasad Shaw v. State of West Bengal

2001-05-03

Sujit Barman Roy

body2001
JUDGMENT Sujit Barman Roy, J. Both these writ petitions were heard analogously and are being disposed of by this common judgment and order as same questions of facts and law are involved in both these cases except that in the subsequent writ petition some subsequent action of the respondents in connection with very same subject matter has been challenged. Both the petitions were filed by the same petitioner against the same respondents. 2. Petitioner has, inter alia prayed for quashing Notification No. 506( )STN 3M -51/2000 pt dated 2.3.2001 issued by Govt. of West Bengal, Transport Department. By the said Notification W.B. Motor Vehicles Rules, 1989 have •been amended by deleting Rule 89 thereof with effect from 1.4.2001. By the said notification it was further decided that since enforcement of the said amendment with effect from 1.4.2001, all matters in relation to national permit under sub-section (12) of section 88 of the M.V. Act, 1988 should be dealt with by Regional Transport Authorities subject to certain conditions mentioned therein. Said notification reads as under: Government of West Bengal Transport Department Writers' Buildings Calcutta - 700001 No. 506() -STN3M-51/2000pt. From: A. Ajad, date:2nd March, 2001. Jt. Secy. to the Govt. of West Bengal. To: The Chairman RTA & The D.M. Office of the District Magistrate P.O................. Dist. ............... Sub: Decentralisation of the function of issuing National Permit for goods carriages among the RTAs. Sir, I am directed to say that decentralisation of the function for issuing National Permit for goods carriages among the RTAs was under the consideration of this deptt. for a long time in the past. In view of the above the Govt. in the Transport Deptt. have now decided to delete the rule 89 by amendment in the W.B. Motor Vehicle Rules, 1989 for decentralisation of the works relating' to National Permit among the RTAs in the State of West Bengal. The amendment will come into force on and from 1.4.2001 and since then the RTAs will consider the application made before them in connection with all matters issuing to National Permit under sub-section (12) of section 88 of the Motor Vehicles Act, 1988 subject to the following: (i) application for renewal of authorisation in respect of National Permit to be received by RTAs from 1.3.2001 and disposed of affecting their validity from 1.4.2001. (ii) application for offer letters and New Permits as well as other related matters to be received by the RTAs from 1.4.2001 and disposed of accordingly. (iii) the fees payable for West Bengal to be realised through Treasury Challan permit (T.R. Form No.7). (iv) the Demand Draft meant for the other States to be handed over to the permit holder at the time of issue/renewal on National Permit in the case where in concerned States composite fees by way of Demand Draft are directly to be deposited at their Cheek Post. (v) printing of necessary Forms/Registers to be made by the respective RTAs. To start the works in connection with above matters, requisite forms may be supplied from the STA, West Bengal for a month. (vi) Necessary guidelines will follow shortly in the matter of issue of National Permit etc. The following matters, however, will be dealt with by STA, West Bengal till 31.3.2001. (a) Cancellation of National Permit for goods carriages. (b) Issue of duplicate permit, in case of loss/damages. (c) Replacement of vehicle. (d) Change of ownership of permit. (e) other allied matters of National Permit for goods carriage. In this connection it may be stated that no additional staff will be provided to R.T.As. for this purpose. You are, therefore, requested to take appropriate and immediate necessary action in this regard. Yours faithfully, Joint Secy. to the Govt. of W.B. Date: 2.3.2001. 3. Now, contention of Mr. Samanta, ld. Counsel for the petitioner, is that in view of various provisions of the said Act and the Rules framed thereunder, both by the State Govt. and the Central Govt., and a notification issued by the State Govt., it is only the State Transport authority of the State which is competent to deal with and grant applications for national permits in respect of, inter alia, goods carriages. According to him Regional Transport Authorities cannot be vested with any such power to deal with or grant any application for national permit in respect of such goods carriages and, therefore, said impugned notification dated 2.3.2001 must be struck down and the position in this regard that existed before issuance of the impugned notification must be restored. 4. Case of the petitioner in brief is that he is a goods transport operator under a national permit issued by the State Transport Authority, West Bengal. 4. Case of the petitioner in brief is that he is a goods transport operator under a national permit issued by the State Transport Authority, West Bengal. Until the impugned notification dated 2.3.2001 was issued, all national permits in respect of, inter alia, goods carriages were used to be issued by the State Transport Authority. Only question that has fallen for decision in these two petitions is the question as to which authority is competent to deal with and grant applications for national permits in respect of goods carriages? 5. Sub-sections (12) and (14) of section 88 of the Motor Vehicles Act, 1988 deal with the questions of national permits in respect of goods carriages and the authority competent to deal with applications for such permits. Sub-section (12) of section 88 reads as under: "Notwithstanding anything contained in sub-section (1) but, subject to the rules that may be made by the Central Government under subsection (14), the appropriate authority may, for the purpose of encouraging long distance inter-State road transport, grant in a State, national permits in respect of goods carriages and the provisions o~ sections 69, 77, 79, 80, 81, 82, 83, 84, 85, 86 (clause (d) of sub-section (1) of section 87 and section 89) shall, as far as may be, apply to or in relation to the grant of national permit." 6. Therefore, subject to the rules that may be framed by the Central Govt. under sub-section (14) of section 88, it is the appropriate authority who may grant in a State National Permits in respect of goods carriages and the provisions of, inter alia, section 69 shall, as far as may be, apply in relation to the grant of such permits. Now, the question is who is that "appropriate authority" competent to deal with or grant applications for national permits in respect of goods carriages? Sub-section (14) of section 88 answers this question and it reads as under: '(a) The Central Government may make rules for carrying out the provisions of this section. Now, the question is who is that "appropriate authority" competent to deal with or grant applications for national permits in respect of goods carriages? Sub-section (14) of section 88 answers this question and it reads as under: '(a) The Central Government may make rules for carrying out the provisions of this section. (b) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely,- (i) the authorisation fee payable for the issue of a permit referred to in sub-sections (9) and (12); (ii) the fixation of the laden weight of the motor vehicle; (iii) the distinguishing particulars or marks to be carried or exhibited in or on the motor vehicle; (iv) the colour or colours in which the motor vehicle is to be painted; (v) such other matters as the appropriate authority shall consider in granting a national permit. Explanation.- In this section, (a) "appropriate authority", in relation to a national permit, means the authority which is authorised under this Act to grant a goods carriage permit; (b) "authorisation fee" means the annual fee, not exceeding one thousand rupees, which may be charged by the appropriate authority of a State to enable a motor vehicle, covered by the permit referred to in subsections (9) and (12) to be used in other States subject to the payment of taxes or fees, if any, levied by the States concerned; (c)" national permit" means a permit granted by the appropriate authority to goods carriages to operate throughout the territory of India or in such contiguous States, not being less than four in number, including the State in which the permit is issued as may be specified in such permit in accordance with the choice indicated in the application." Explanation (a) to sub-section (14) of section 88 defines the term" appropriate authority" in relation to national permit for goods carriages. It means the authority which is authorised under this Act to grant goods carriage permits. 7. Act contains clear provisions about the authority competent to grant permits for good carriages. It means the authority which is authorised under this Act to grant goods carriage permits. 7. Act contains clear provisions about the authority competent to grant permits for good carriages. Section 77 provides as to what particulars should an application for a permit to use a motor vehicle for the carriage of goods for hire or reward or for carriage of goods for or in connection with a trade or business carried on by the applicant shall, as far as may be, contain. It reads as under:" An application for a permit to use a motor vehicle for the carriage of goods for hire or reward or for the carriage of goods for or in connection with a trade or business carried on by the applicant (in this. Chapter referred to as a goods carriage permit) shall, as far as may be, contain the following particulars, namely,(a) the area or the route or routes to which application relates; (b) the type and capacity of the vehicle; (c) the nature of the goods it is proposed to carry; (d) the arrangements intended to be made for the housing, maintenance and repair of the vehicle and for the storage and safe custody of the goods; (e) such particulars as the Regional Transport Authority may require with respect to any business as a carrier of goods for hire or reward carried on by the applicant at any time before the making of the application, and of the rates charged by the applicant; (D particulars of any agreement, or arrangement, affecting in any material respect the provision within the region of the Regional Transport Authority of facilities for the transport of goods for hire or reward, entered into by the applicant with any other person by whom such facilities are provided, whether within or without the region; (g) any other pars which may be prescribed." Section 78 requires that Regional Transport Authority, while considering an application for goods carriage permits, shall have regard to the following matters, namely;"(a) the nature of goods to be carried with special reference to their dangerous or hazardous nature to human life (b) the nature of chemicals or explosives to be carried with special reference to the safety to human life." Section 79 declares in unambiguous terms that it is the Regional Transport. Authority which is alone competent to deal with and grant applications for goods carriage permits. Authority which is alone competent to deal with and grant applications for goods carriage permits. It reads as under: "A Regional Transport Authority may, on an application made to it under section 77, grant a goods carriage permit to be valid throughout the State or in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit: Provided that no such permit shall be granted in respect of any area, or route not specified in the application. (2) The regional Transport Authority, if it decides to grant a goods carriage permit, may grant the permit and may, subject to any rules that may be made under this Act, 'attach to the permit anyone or more of the following conditions namely,- (i) that the vehicle shall be used only in a specified area, or a specified route or routes; (ii) that the gross vehicle weight of any vehicle used shall not exceed a specified maximum; (iii) that goods of a specified nature shall not be carried; (iv) that goods shall be carried at specified rates; (v) that specified arrangement shall be made for the housing, maintenance and repair of the vehicle and the storage and safe custody of the goods carried; (vi) that the holder of the permit shall furnish to the Regional Transport Authority such periodical returns, statistics and other information as the State Government may, from time to time, prescribe; (vii) that the Regional Transport Authority may, after giving notice of not less than one month,- (a) vary the conditions of the permit; (b) attach to the permit further conditions; (viii) that the conditions of the permit shall not be departed from, save with the approval of the Regional Transport Authority; (ix) any other conditions with may be prescribed. (3) The conditions referred to in sub-section (2) may include conditions relating to the packaging and carriage of goods of dangerous or hazardous nature to human life." 8. Therefore, it is apparent from the aforesaid provisions of sections 77,78 and 79 of the Act that Regional Transport Authority is competent to deal with and grant or refuse applications for goods carriage permits. As already pointed out, it is the" appropriate authority" who is competent to deal with or grant or refuse applications for national permits in respect of goods carriages within the meaning of section 88(12). As already pointed out, it is the" appropriate authority" who is competent to deal with or grant or refuse applications for national permits in respect of goods carriages within the meaning of section 88(12). Explanation (a) to subsection (14) thereof defines the meaning of the expression "appropriate authority" for the purposes of that section in relation to national permits for goods carriages. It defines "appropriate authority" in relation to national permits to mean the authority which is authorised under this Act to grant goods carriage permits. Now, the only authority authorised under this Act to grant goods carriage permits is the Regional Transport Authority as provided in sections 77, 78 and 79. Therefore, there is absolutely no room for any doubt that it is the Regional Transport Authority which is the" appropriate authority" within the meaning of section 88(12) read with explanation (a) to sub-section (14) of section 88 which alone is competent to deal with or grant or refuse applications for national permits in respect of goods carriages. 9. However, referring to provisions of section 69 of the Act, it was contended by Mr. Samanta that the Regional Transport Authority cannot be vested with any such power to deal with applications for national permits in respect of goods carriages. It is only the State Transport Authority which can deal with applications for such permits. Section 69 reads as under:- "(1) Every application for a permit shall be made to the Regional Transport Authority of the region in which it is proposed to use the vehicle or vehicles: Provided that if it is proposed to use the vehicle or vehicles in two or more regions lying within the same State, the application shall be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies, and in case the portion of the proposed route or area in each of the regions is approximately equal, to the Regional Transport Authority of the region in which it is proposed to keep the vehicle or vehicles: Provided further that if it is proposed to use the vehicle or vehicles in two or more regions lying in different States, the application shall be made to the Regional Transport Authority of the region in which the applicant resides or has his principal place of business. (2) Notwithstanding anything contained in sub-section (1), the State Government may, by notification in the Official Gazette, direct that in the case of any vehicle or vehicles proposed be used in two or more regions lying in different States, the application under that sub-section shall be made to the State Transport Authority of the region in which the applicant resides or has his principal place of business." - Mr. Samanta further referred to sub-section (12) of section 88 and pointed out that provisions of section 69, as far may be, shall apply to or in relation to the grant of national permits in respect of goods carriages. But the words" as far as may be" occurring in sub-section (12) of section 88 makes it abundantly clear that provision of section 69 cannot be applied in its entirety in relation to grant of national permits in respect of goods carriages. Otherwise, words "as far as may be" occurring in sub-section (12) of section 88 will become meaningless and devoid of any application. Section 69 cannot be interpreted in vacuum detached from the context in which it occurs. It is true that section 69 contains the general law in relation to national permits in respect of all kinds of vehicles. It, therefore, contains the law in general in respect of national permits for all kinds of vehicles. Section 69 will certainly apply, as far as may be, to or in relation to grant of national permits in respect of goods carriages only to the extent upto which provisions of section 69 are not inconsistent with other provisions of the Act dealing with a special subject like national permits in respect of goods carriages. Sub-sections (12) and (14) of section 88 read with sections 77, 78 and 79 deal with a special subject like national permits for goods carriages. Therefore, general law contained in section 69 with regard to national permits of all kinds of vehicles is certainly applicable to a special subject like national permits in respect of goods carriages also to the extent it is not inconsistent with the aforesaid special provisions. To the extent of inconsistency, it is the special provisions which shall prevail over the general provisions. Otherwise, aforesaid special provisions with be render.ed meaningless and devoid of any application which could not have been the intention of the legislature. 10. To the extent of inconsistency, it is the special provisions which shall prevail over the general provisions. Otherwise, aforesaid special provisions with be render.ed meaningless and devoid of any application which could not have been the intention of the legislature. 10. It is one of the cardinal principle of interpretation of statutes that a statute must be read as a whole and one provision of the Act should be construed with reference to other provisions of the same Act so as to make a consistent enactment of the whole statute. It is a rule now firmly established that the intention of the legislature must be found by reading the statute as a whole . See Philips India Ltd. vs. Labour Court, (1985) 3 SCC 103 ; Osmania University Teachers Ass. vs. State of A.P., AIR 1987 SC 2034 ; Captain Sub hash Kumar vs. Principal Officer, Mercantile Marine Deptt, AIR 1991 SC 1632 and Mohan Kr. Singhania vs. Union of India, AIR 1992 SC 1 . This rule of contextual interpretation has been referred to as an "elementary rule" by Viscount Simonds in A .G. vs. H.R.H Prince Ernest Augustus, (1957) 1 ALL ER 49. In Charles Robert Leader vs. Georage F. Diffey, (1988) 13 AC 294, it was observed by Lord Halsbury that "you must look at the whole instrument inasmuch as there may be inaccuracy and inconsistency; you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it." This rule of construction is also spoken of construction "ex visceribus actus". It is stated to be the most natural and genuine exposition of a statute. "To construe one part of a statute by another part of the same statute, for that best expression the meaning of the makers." The provisions of one section of a statute cannot be used to defeat those of another "unless it is impossible to effect reconciliation between them." See Md. Sher Khan vs. Raja Seth Swami Dayal, AIR 1922 PC 17. Sher Khan vs. Raja Seth Swami Dayal, AIR 1922 PC 17. After all it should not be _ lightly assumed that "Parliament had given with one hand what it took away with the other." See Dormer vs. Newcastle-on-Tyne Corp., (1940) 2 ALL ER 521; Tahsildar Singh vs. State of U.P, AIR 1959 SC 1012 and K.M. Nanavati vs. State of Bombay, AIR 1961 SC 112 . Therefore, provisions of section 69(2) cannot be so interpreted as to render provisions of sub-sections (12) and (14) of section 88 read with sections 77, 78 and 79 meaningless and devoid of any application. To the extent of repugnancy or inconsistency, later provisions must be held to prevail over the former provision in relation to national permits for goods carriages. The rule of construction is well-settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is what is known as the rule of harmonious construction. That effect should be given to both, is the very essence of the rule. Thus a construction that reduces one of the provisions to a "useless lumber" or " dead letter" is not harmonious construction. To harmonise is not to destroy. Principle in all such cases is to find out which of the two apparently conflicting provisions is more general and which is more specific and to construe the more general one as to exclude the more specific. This principle is expressed in the maxims" Generalia specialibus non derogant" and "Generalibus specialia derogant." It means that if a special provision is made on a certain matter, that matter is excluded from the general provision. As sub-sections (12) and (14) of section 88 read with sections 77,78 and 79 deal with a special subject as to the authority competent to deal with or grant national permits in respect of goods carriages, same shall prevail over more general provision contained in section 69 of the Act to the extent of in consistency between the said provisions. Therefore, to that extent section 69 will not apply to the aforesaid special subject. This special subject is thus excluded from the application of section 69 in this regard. Therefore, to that extent section 69 will not apply to the aforesaid special subject. This special subject is thus excluded from the application of section 69 in this regard. By invoking the aforesaid rule of construction, Supreme Court interpreted provisions of various other statutes in the following cases, namely, South India Corporation (P) Ltd. vs. Secretary, Board of Revenue, Trivandrum, AIR 1964 SC 207 ; Weverly Jute Mills Co. Ltd. vs. Raymon & Co. (India), AIR 1963 SC 90 ; J.K. Cotton Spinning & Weaving Mills vs. State of U.P., AIR 1961 SC 1170 ; State Electricity Board vs. Harisankar, AIR 1979 SC 65 ; Life Insurance Corporation of India vs. D.J. Bahadur, AIR 1980 SC 2181 ; State of U.P. vs. Renusagar Power Co., AIR 1988 SC 1737 and many other similar decisions. 11. In view of the aforesaid authorities and the specific provisions of law contained in sub-sections (12) and (14) of section 88 read with sections 77,78 and 79 dealing with special subject as to which authority is competent to deal with or grant or refuse application of national permits in respect of goods carriages and also in view of general nature of the provisions contained in section 69, there should not be any room for doubt that the former provisions shall prevail in their application on the aforesaid subject over the later provision which is of general nature. 12. It is true that by notification dated 18.1.96 bearing No. 729/WT/3M-203/ 95 the Governor in exercise of his power conferred by or under sub-section (2) of section 69 was pleased to direct that in case of any vehicle or vehicles proposed to be used in two or more regions lying indifferent States, the application, under sub-section (1) of section 69 of the Act shall be made to the State Transport Authority, West Bengal, by an applicant who resides or has his principal place of business in West Bengal. In view of general character of this provision, the State Transport Authority has entertained and allowed all applications for grant of national permits in respect of goods carriages in this State until the impugned notification was issued. It appears that, as contended by Mr. In view of general character of this provision, the State Transport Authority has entertained and allowed all applications for grant of national permits in respect of goods carriages in this State until the impugned notification was issued. It appears that, as contended by Mr. M. Das, learned Counsel for the respondents, by mistake due to wrong interpretation of law State Transport Authority has been entertaining and granting national permits in respect of goods carriages also so far in this State. Now, the respondents have issued the impugned notification to clarify the correct position of law in this regard. However, it needs to be mentioned here that rule 89 of West Bengal Motor Vehicles Rules, 1989 provided that all applications for national permits under sub-section (12) of section 88 of the Act shall be made before State Transport Authority and shall be subject to the provisions of the Act and the rules as framed by the Central Government or the State Government in this behalf. Because of this rule and due to wrong interpretation of the provisions of the Act, the State Transport Authority has been entertaining all applications for national permits in respect of goods carriages until the impugned notification was issued. This rule 89 was clearly framed in violation of mandatory provisions contained in sub-sections (12) and (14) of section 88 read with sections 77, 78 and 79. After realising this mistake, the State issued the impugned notification amending the said rules by deleting rule 89 and clarifying the point that since enforcement of the said amendment of the rules with effect from 1.4.2001, it shall be the Regional Transport Authorities which would consider all applications made before them in connection with all matters for issuing national permit under sub-section (12) of section 88 of the Act. Neither the Central Government nor the State Government is competent to frame any rule which is inconsistent with mandatory provisions of the Act. Apparently rule 89 of the said rules was inconsistent with the aforesaid mandatory provisions of the Act. Therefore, the State Government has rightly amended the said rules by deleting rule 89. It has also rightly clarified the point that since the said amendment came into force on 1.4.2001, it should be the Regional Transport Authorities which shall entertain, grant or refuse applications for national permits in respect of goods carriages. Therefore, the State Government has rightly amended the said rules by deleting rule 89. It has also rightly clarified the point that since the said amendment came into force on 1.4.2001, it should be the Regional Transport Authorities which shall entertain, grant or refuse applications for national permits in respect of goods carriages. The notification has been issued to rectify the mistakes committed by the respondents so far. It followed a wrong procedure so far by allowing State Transport Authority to entertain or deal with any application for national permit in respect of goods carriages. I, therefore, do not find any infirmity whatsoever with the impugned notification. It does not call for any interference whatsoever by this court. 13. Accordingly, I am constrained to hold that the impugned notification does not suffer from any infirmity whatsoever and accordingly both the petitions are dismissed. 14. No order as to costs. Writ petitions dismissed.