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2003 DIGILAW 312 (CAL)

RANJIT KUMAR LAHIRI v. STATE OF WEST BENGAL

2003-06-27

P.N.SINHA, SAMARESH BANERJEE

body2003
BANERJEA, J. ( 1 ) THE present appeal has been preferred against an order dated 13th February, 2002 passed by a learned Single Judge of this court rejecting the contention of the appellant that the Regional Transport authority cannot insist as to the model of the Vehicle. ( 2 ) ADMITTEDLY, the writ petitioner was issued with an offer letter by the Regional Transport Authority, Nadia in the matter of grant of permit in the Route No. 27 (Manchrapara to Birohi) via Kalyani Railway Station, on 11th of August, 1999. One of the conditions imposed in the said offer letter was that the appellant should produce Bus of current model/brand new bus. The other condition imposed in the said letter was that the permit holder should be the owner of his/her vehicle. ( 3 ) THE petitioner thereafter made a representation to the Secretary of the said Regional Transport Authority contending inter alia, in view of the decision of the High Court in the case of Somnath Sinha v. Ajoy Sinha and Ors. , reported in 1996 (2) C. L. T. page 281, he will be entitled to place a hired or leaded vehicle. ( 4 ) THE further contention of the petitioner was that in view of the provisions of the Motor Vehicles Act, 1988, the Regional Transport Authority cannot insist on production of particular model. ( 5 ) AS such representation was of no avail, ultimately the appellant moved the writ petition being W. P. No. 2140 of 2000 and the said writ petition was disposed of by Justice Basudeva Panigrahi on September 19,2000 by directing the respondent not to enforce the clause that the permit holder should be the owner of the vehicle and if the respondent is satisfied with the fitness certificate issued in respect of the vehicle of the petitioner, permit should be granted. ( 6 ) LONG thereafter on 20th March, 2001 the Secretary of Regional transport Authority of Nadia called upon the appellant to produce vehicle before the Motor Vehicles Inspector (Technical) with relevant documents. ( 7 ) THE petitioner, however, did not produce such vehicle for such examination and by a letter dated 26th March, 2001 he informed the secretary of the Regional Transport Authority that he is not in a position to produce the vehicle as the same was then under repair. Two months time therefore was prayed for. ( 7 ) THE petitioner, however, did not produce such vehicle for such examination and by a letter dated 26th March, 2001 he informed the secretary of the Regional Transport Authority that he is not in a position to produce the vehicle as the same was then under repair. Two months time therefore was prayed for. ( 8 ) THEREAFTER, the offer letter of the petitioner was rejected on the ground that he failed to produce vehicle within 60 days of issue of the offer letter. ( 9 ) CHALLENGING the aforesaid action the appellant moved the another writ petition being W. P. No. 2274 of 2001 and in the said writ petition Justice ashim Kumar Banerjee was pleased to direct the appellant for production of the vehicle on a particular date for inspection and the respondents were directed to inspect the vehicle. Thereafter, the appellant brought the vehicle for inspection, but it was alleged that the Transport Authority wrongly alleged that such vehicle was not produced. ( 10 ) ACCORDINGLY, he moved the present writ petition being W. P. No. 279 of 2000 which was disposed of by the impugned judgment and order. ( 11 ) BY the impugned judgment and order the learned Judge held that the Regional Transport Authority cannot insist that a permit holder also has to be the owner of the vehicle. It was further held in view of the decision of the Supreme Court in the case of Subhash Chandra v. State of uttar Pradesh, reported in AIR 1980 SC 800 , objection of the writ petitioner as to the model of the vehicle is not tenable. ( 12 ) IT is against the aforesaid finding, the appeal has been preferred. ( 13 ) THE learned Counsel appearing on behalf of the appellant has strenuously argued that the aforesaid judgment of the trial Court following the decision of the Supreme Court in the case of Subhash Chandra v. State of Uttar Pradesh (supra) is erroneous as the position under the Motor vehicles Act of 1988 is different. ( 13 ) THE learned Counsel appearing on behalf of the appellant has strenuously argued that the aforesaid judgment of the trial Court following the decision of the Supreme Court in the case of Subhash Chandra v. State of Uttar Pradesh (supra) is erroneous as the position under the Motor vehicles Act of 1988 is different. In the aforesaid decision of the Supreme court it was held that the transport authority under Section 51 (2) (x) of the motor Vehicles Act of 1939 has power to impose any condition for a stage carnage permit and can also decide the description of the vehicle and in the process of doing that it is within the power of Regional Transport authority to ask for production of a new vehicle to ensure the safety and comfort of the travelling public, Section 72 is the corresponding section in the present Act. ( 14 ) IN the case of Tapan Kumar Saha (unreported) C. O. No. 21922 (W)/1995 one of us (Samaresh Banerjea, J.) sitting singly following the decision of the Supreme Court has held that under Section 72 of the motor Vehicles Act, 1988, the Regional Transport Authority for the interest of safety and comfort of passengers can ask for production of a new model bus. ( 15 ) OUT attention has also been drawn by the learned Advocate appearing on behalf of the respondent that similar decision has been rendered by Justice Sujit Barman Roy, following the aforesaid decision of the Supreme Court in the case of Prasanta Kumar Dutta v. State of West bengal reported in 2001 (1) C. L. J. 446. ( 16 ) MR. Banerjee, learned Advocate appearing forthe appellant has submitted inter alia, that the aforesaid decision requires re-consideration in view of the fact that when the aforesaid decision was rendered by the supreme Court under the old Act of 1939, no provision was there in the said Act regarding the power of determining a particular model of a bus which has not now been introduced in the present Act in Section 59. ( 17 ) IT has been submitted inter alia, in the present Act, the Legislature in its wisdom having vested such power on the Central Government, the power of the Regional Transport Authority or State Governments if any to impose condition in respect of condition of the model for the purpose of safety and comfort of the passengers stands excluded and since admittedly, no notification has been issued by the Central Government in the said Act, determining a model of a bus, the Regional Transport Authority cannot insist on a particular model of bus for the purpose of issuing permit. ( 18 ) MR. Banerjee has further submitted when the legislature in its wisdom has reserved such power under the present Act now with the Central government it is not for the Court to interprete the provisions of Section 72 in such a manner which will make Section 59 of the Act nugatory and the Court should not legislate on such matter. ( 19 ) WE are, however, unable to accept such contention of Mr. Banerjee. ( 20 ) SECTION 72 of the present Act being pan materia with Section 51 of the 1939 Act, the aforesaid decision of the Supreme Court is very much applicable even while interpreting the present Section 72 of the present 1988 Act notwithstanding the fact that under Section 59 of the present act, the Central Government has been so empowered. ( 21 ) UNDER Section 59 (1) of the present Act the Central Government may having regard to the public safety convenience and objects of this act by notification in the Official Gazette,. specify the life of a motor vehicle from the date of its manufacture after the expiry of which the Motor Vehicle shall not be deemed to comply with the requirements of the Act and the rules made thereunder. ( 22 ) SUCH power of the Central Government therefore under such provisions of the Act is really for the determination of the life of a motor vehicle beyond which the same shall not be registered and cannot be issued with a fitness certificate and cannot be plied on the road at all, ( 23 ) THE legislature in its wisdom has so empowered the Central government for ensuring public safety, convenience and objects of the act. ( 24 ) BUT the legislature in its wisdom has also empowered the transport Authority to issue a permit and also to lay down the conditions as to description and type of the vehicle which will be produced and in exercise of such power the Regional Transport Authority can ask for production of a new model Bus for safety, convenience and comfort of the travelling public which is also a matter of public interest, as held by the supreme Court in the aforesaid decision. ( 25 ) BY exercise of such power the Regional Transport Authority therefore may not grant permit in respect of old vehicle, if it is of the opinion that such vehicle will not be suitable in the interest of travelling public for their convenience, comfort as also for road safety. ( 26 ) THE newer a vehicle, better would be condition of the vehicle and safer it would be in vis-a-vis safety and comfort of the travelling public and road safety. ( 27 ) OLDERTHE vehicle. . . . will be the condition of the vehicle because of wear and tear and more will be the chance of frequent breakdown affecting road safety and the comfort and interest of the travelling public. ( 28 ) UNDER Section 59 of the Act if a notification is issued by the central Government determining the life of a vehicle, the same cannot be registered any further and such vehicle is totally barred from plying on the road. ( 29 ) BUT even when a vehicle is registered and a fitness certificate is granted, under Section 72, such power can be exercised by the Regional transport Authority in the interest of travelling public and in public interest. ( 30 ) POWER of the Central Government under Section 59 of the Act therefore does not exclude the power of Regional Transport Authority to impose such condition in the interest of travelling public under Section 72 of the Act. Power under Section 59 of the Central Government and power of Regional Transport Authority under Section 72 are not mutually exclusive or inconsistent with each other but are complementary to each other. Power under Section 59 of the Central Government and power of Regional Transport Authority under Section 72 are not mutually exclusive or inconsistent with each other but are complementary to each other. While the Central Government under Section 59 of the Act is to determine the life of all vehicles for plying on the road, the Transport Authority under section 72 of the Act is the best Judge whether a permit in a particular case should be granted in public interest in respect of a vehicle and it can impose such condition for the purpose of ensuring old buses are not allowed to ply as stage carriage of contact carriage endangering the life and comfort of the travelling permit. ( 31 ) WE, therefore, do not agree with Mr. Banerjee that Section 59 of the new Act has excluded the power of the Regional Transport Authority to put such condition while issuing a permit. ( 32 ) IF interpretation made by Mr. Banerjee is to be accepted, the same will lead to dangerous consequences. ( 33 ) IF it is held that because of Section 59 of the Act the Transport authorities do not have the power to put such condition in respect of an old vehicle, the result will be an operator will be free to ply old and unsafe buses endangering life of the travelling public and affecting their convenience and comfort. ( 34 ) THE result will be that the private interest of an operator will outweigh public interest, namely, safety, convenience and comfort of the travelling public at large. ( 35 ) HAD it been the intention of the legislature that power of Central government under Section 59 (1) excludes such power of the transport authorities under Section 72 of the Act, the same could easily have been clarified specially when the Supreme Court in the aforesaid case of Subhash chandra (supra) held that the Regional Transport Authority has such power under Section 51 of the old Act of 1939, with which Section 72 of the present Act is pah mater/a, and the presumption is that the Legislature is aware of the said decision of the Supreme Court. ( 36 ) THE interpretation as made above is the only reasonable interpretation which can be made of such powers under the aforesaid section. ( 36 ) THE interpretation as made above is the only reasonable interpretation which can be made of such powers under the aforesaid section. ( 37 ) IT is the duty of the Court to attempt to reconcile two sections of an Act even if the same appear to be inconsistent and here we cannot make such interpretation as suggested by Mr. Banerjee by passing the aforesaid Supreme Court judgment. ( 38 ) IN making such interpretation, we therefore have not legislated as wrongly submitted by Mr. Banerjee. ( 39 ) THE judgment of Justice Basudeva Panigrahi which has been relied upon Mr. Banerjee did not lay down the correct position of law. Reliance has also been placed by Mr. Banerjee in the judgment and order dated 15th February, 2001 rendered in the case of State of West Bengal v. Kakali Bhattacharjee (unreported) A. P. O. T. No. 805 of 2000. ( 40 ) WE are, however of the view, with due respect to Their Lordships that such judgment is per incurium as the same has been rendered overlooking the power of the Transport Authorities under Section 72 of the motor Vehicles Act and the decision of the Supreme Court in the case of subhash Chandra v. State of U. P. reported in A!r 1980 SC 800. ( 41 ) MR. Banerjee has also contended that in any view of the matter the Regional Transport Authority cannot insist on such condition in view of the fact that they never preferred appeal against the aforesaid order and judgment of Justice Basudeva Panigrahi whereby His Lordship directed issue of permit without insisting on model of the bus. ( 42 ) UNDER normal circumstances we might have accepted the same as good ground for not permitting the respondents to insist on such condition. But as we are of the view that such decision of Justice Panigrahi does not lay down the correct position of law, we are not inclined to accept such submission as question of public interest is involved. ( 43 ) IT appears to us whatever might be the reason admittedly, the writ petitioner/appellant could not produce any vehicle before the Regional transport Authority within 60 days from the issue of the offer letter and the explanation offerred by it that it could not produce the vehicle as the same was under repair is wholly satisfactory. ( 43 ) IT appears to us whatever might be the reason admittedly, the writ petitioner/appellant could not produce any vehicle before the Regional transport Authority within 60 days from the issue of the offer letter and the explanation offerred by it that it could not produce the vehicle as the same was under repair is wholly satisfactory. On the contrary the same clearly indicates that although the petitioner applied for grant of a permit, he was not in a possession of a ready vehicle at all. For the reasons stated above we do not find reason to interfere with the order of trial Court. The appeal therefore fails and the same is hereby dismissed without however, any order as to costs. Sinha, J. : I agree. S. K. G.