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2001 DIGILAW 520 (CAL)

Sandip Kumar Charan v. State of West Bengal

2001-08-20

Ronojit Kumar Mitra

body2001
JUDGMENT Ronojit Kumar Mitra, J. : In this petition, prayer was made for the issuance of a writ of mandamus directing the respondent authorities, the respondent No.3 in particular, to cancel the decision of the authority being Annexure P-3 to the petition, and also to take fresh steps to dispose of the application of the petitioner in compliance with the relevant provisions of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act), and accordingly grant permit in favour of the petitioner. 2. The petitioner made an application for the grant of a permanent stage carriage permit in a proposed route. The petitioner came before the court, and by an order dated March 12, 2001, the Regional Transport Authority, hereinafter referred to as the R.T.A. for Short, was directed to consider the application of the petitioner and to dispose of the matter. The respondent authority after hearing the petitioner, by a resolution dated May 24, 2001, rejected the prayer of the petitioner upon giving reasons. The reasons for the rejection were principally on the basis of findings of the respondent authorities that, a huge number of buses are playing in different routes overlapping the route prayed for and that the respondents felt that it will not be possible to formulte a suitable time table for plying the bus and that any attempt to do so will cause total dislocation of the passenger service of the area. 3. It was submitted by the advocate appearing for the petitioner, that both the grounds were bad in law, and he relied on the decisions reported in 1993(2) C.L.J. 229 and A.(995) Allahabad 330. He argued, that under section 71(3)(a) of the Motor Vehicles Act, 1988, unless the Central Government having regard to the number of vehicles, road conditions and other relevant matters, directed the R.T.A. by notification published in the official gazette, the Regional Transport Authority, to limit the number of stage carriage, the Regional Transport Authority had no power to do so. He contended, that today it was settled law that congestion or clash of time-table, could no longer be grounds for rejecting an application for the grant of permits. He contended, that today it was settled law that congestion or clash of time-table, could no longer be grounds for rejecting an application for the grant of permits. As regards the finding of the authority that it was not possible to formulate a suitable time-table, he submitted, that the authority in that event, was bound to afford the petitioner an opportunity to propose a fresh time-table, for further consideration and that they were not entitled to, as had been done, reject the prayer summarily. He also cited and relied on a decision reported in A.I.R 1978 S.C. 861. 4. Advocate appearing on behalf of the respondent authorities submitted, that in the case of Mithilesh Carg, reported in A.LR 1992 S.C. 443 the Supreme Court had decided, that an application for issuance of a permanent stage carriage permit was liable to be rejected on the ground of congestion and road condition. He submitted, that where the interest of the local people was being adequately served, and where any further grant of permit would cause the passenger service in the route to be dislocated to the prejudice of the commuters, the concerned R.T.A. was within its powers, in law, to refuse to grant permits. 5. In the decision reported in (1993)2 C.L.J. 229 the Hon'ble Judge was of the view that: "Congestion, clash of timing and such other matters of delay which were earlier considered often regarding grant of permits, must no longer be used for refusing permits to citizens, who wish to ply their vehicles on routes without infringing the law." According to the Hon'ble Judge, while permits would not be refused on the grounds, such as, congestion, clash of timing, etc. vehicles, however, were to be plied "without infringing the law." This view was of course, in consonance with the provisions contained in sub-section(2) of section 80 of the Act that the R.T.A. "shall not ordinarily refuse to grant an application for permit of any kind ....." 6. Indeed the Parliament had liberalised the policy of granting route permits. The R.T.A. however, by virtue of the provisions contained in the second proviso to sub-section(2) of section 80 of the Act, has been specifically empowered to refuse an application for the grant of permits, by giving reasons. Indeed the Parliament had liberalised the policy of granting route permits. The R.T.A. however, by virtue of the provisions contained in the second proviso to sub-section(2) of section 80 of the Act, has been specifically empowered to refuse an application for the grant of permits, by giving reasons. The Supreme Court in the case of Mithilesh Garg (supra) confirmed, that "the R.T.A. has the power under the Act to refuse an application for grant of permit by giving reasons", and that it was for the authority to take into consideration all the "relevant factors at the time of quasi judicial consideration of the application for grant of permits." Where it was the specific finding of the R.T.A. that grant of further permits would increase traffic congestion and that formulation of a suitable time-table would not be possible, as because there would be a "total dislocation of the passenger service" as was the case before this court, I would be inclined to be of the view, that no intervention by the court was warranted in the decision of the R.T.A. refusing the petitioner's application. 7. The first proviso to sub-section (2) of section 80 of the Act, had of course conferred on the R.T.A. the powers of refusal to grant permits, if the grant of permits "would have the effect of increasing the number of stage carriages as fixed and specified in a notification in the official gazette." The second proviso to sub-section (2) of section 80, however, specifically empowered the R.T.A. to refuse an application for the grant of permits, provided that upon such refusal, "it shall give to the applicant, in writing, its reasons for the refusal of the same and an opportunity of being heard in the matter." If the provisions contained in the first proviso should be considered conversely, I would understand that the R.T.A. was not empowered to grant route permit in excess of the number, which the Central Government had fixed by a notification published in the official gazette. The R.T.A., was therefore, conferred with summary powers of refusal under the first proviso, and there was, nor could be any scope either for the R.T.A. to apply its mind or the applicant to be entitled to a hearing. The second proviso, on the other hand, according to me, specifically conferred on the RT.A. the power to refuse an application for the grant of route permits. The second proviso, on the other hand, according to me, specifically conferred on the RT.A. the power to refuse an application for the grant of route permits. In the true spirit of the Indian Constitution, the R.T.A. in terms of the proviso was required to give reasons for its refusal and the applicant was entitled to an opportunity of being heard in the matter. Indeed, the R.T.A. would refuse any application which would in effect exceed the number of permits to be issued as specified In the notification by the Central Government. That almost surely could not be interpreted to mean that the legislature had intended that the R.T.A. would not have the power to refuse at all. If contentions of the petitioner were to be accepted, then the provisions contained in the second proviso to the sub-section would be rendered redundant and the intentions of the legislature misinterpreted. 8. This matter had been delt with and specifically deliberated upon by the Supreme Court, in the Mithilesh Garg case (supra). It would be pertinent, and I quote the relevant paragraph of the decision, being paragraph 15, as hereunder: "15. The petitioners had further contended that the conditions of roads, social status of the applicants, possibility of small operators being eliminated by big operators, conditions of hilly roads, fuel availability and pollution control are some of the important factors which the Regional Transport Authority is bound to take into consideration while taking a decision on an application for grant of permit. These are the matters which are supposed to be within the comprehension of the transport authorities. The legislative policy under the Act cannot be challenged on these grounds. It is not disputed that the Regional Transport Authority has the power under the Act to refuse an application for grant of permit by giving reasons. It is for the authority to take into consideration all the relevant factors at the time of quasi judicial consideration of the application for grant of permits. It is not disputed that the Regional Transport Authority has the power under the Act to refuse an application for grant of permit by giving reasons. It is for the authority to take into consideration all the relevant factors at the time of quasi judicial consideration of the application for grant of permits. The statutory authorities under the Act are bound to keep an watch on the erroneous and illegal exercise of power in granting permits under the liberalised policy." Pollution control, according to the Supreme Court, was a matter which was "supposed to be within the comprehension of the transport authorities" and that, if the authority had decided to refuse an application it was "for the authority to take into consideration all the relevant factors at the time of quasi judicial consideration of the application for grant of permits." At the time of such consideration, therefore, the R.T.A. would not only consider as to whether the grant of the permit would be contrary to any provisions of the Motor Vehicles Act, but "all the relevant factors at the time." The finding by the RT.A. as to the facts and circumstances in the case before this court that, granting the permit would increase the number of buses in the route, making, it impossible to formulate a suitable time table without causing "total dislocation of the passenger service," was undeniably "relevant factors." which had been taken into account by the R.T.A. in discharging its quasi judicial function. Judicial review would be called for where the authorities, under the Act, had failed to keep an "watch on the erroneous and illegal e4ercise of power in granting permits under the liberalised policy." 8. In the decision reported in A(1975) S.C. 389 (Hans Raj Kehar vs. State of U.P.) the Supreme Court observed, that the paramount object of granting route permits, was to ensure the convenience of the travelling public and to provide an expeditious transport service, which would of course be in the public interest. According to the Hon'ble Judges, permits were to be granted necessarily to: "........ eliminate or in any case minimise long hours of waiting at. the bus-stands. It would also relieve congestion and provide for quick and prompt transport service. Good transport service is one of the basic requirements of a progressive society. According to the Hon'ble Judges, permits were to be granted necessarily to: "........ eliminate or in any case minimise long hours of waiting at. the bus-stands. It would also relieve congestion and provide for quick and prompt transport service. Good transport service is one of the basic requirements of a progressive society. Prompt and quick transport service being a great boon, for those who travel, any measure which provides for such an amenity is in the very nature of things in the public interest." In the decision reported in A (1978) S.C. 949, the Apex Court affirmed the decision reported in A (1968) S.C. 1461 and held that: "........ High Court under Article 226 of the Constitution should be reluctant to interfere with or disturb the decision of specially constituted authorities of tribunals under the Act especially when the legislature has entrusted their task of granting or renewing the stage carriage permits to the aforesaid authorities or tribunals which are expected to be fully conversent with the procedure and take all the relevant matters which should engage their attention under the provision contained in the Act. In dealing with applications for writs of certiorari under Article 226 of the Constitution in case of the present kind, it is necessary to bear in mind that the High Court does not exercise the jurisdiction of an appellate court and the findings or conclusions on questions of fact could hardly be re-examined or disturbed by it under Article 226 of the Constitution, unless the well-recognised tests in that application were satisfied." 9. In those circumstances it would appear to me that a clash of time table would only increase the congestion in the route which according to the S.T.A. was already congested. As to whether there would be a clash of timing was a matter which was "supposed to be within the comprehension of the transport authorities." There can De little doubt that air pollution would be allowed to multiply innumerable times, by reason of emission of smoke containing unburnt diesel, on account of traffic which would remain stationary on the route due to congestion. The R.T.A. had refused the petitioner's application in exercise of its powers conferred under the second proviso to the sub-section (2) of section 80 of the Act, as it had found that granting of the permit would in effect be contrary to the interest of the travelling public in the area. The petitioner's allegation that decision of the S.T.A. was limiting the number of vehicles in the concerned route, was superfluous and misconceived. The R.T.A. merely refused to allow an application for the grant of a permit in accordance with law. It was not necessary for this court to intervene in the facts and circumstances. Any attempt to do so would amount to interference, not envisaged under the law. 10. For those reasons this application is dismissed. 11. Parties shall be at liberty to obtain a xerox of this dictated order duly counter signed by the Assistant Registrar (Court) of this court, upon an undertaking by the advocates to obtain a certified xerox of this order on the usual terms. Application dismissed.