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2003 DIGILAW 528 (GAU)

Dinesh Sarkar v. State of Tripura

2003-11-28

P.G.AGARWAL

body2003
JUDGMENT P.G. Agarwal, J. 1. This is a second round of litigation by the petitioners, who are the owners of the stage carriage buses plying on Agartala - Narsingarh route. The petitioners were granted permit and pursuant to that they were plying their buses from Narsingarh to Agartala and back. At Agartala, the permit holders were allowed to use the bus stand known as Agartala Motor Stand. However, by notification dated 5.9.1996 the State Transport Authority shifted the Bus Stand to newly established stand, namely, Radhanagar Bus Stand and notified that the North Bound vehicles, which includes the stage carriage vehicles of the petitioners, shall use the Radhanagar Bus Stand and they will not be allowed to proceed beyond the said bus stand which is at a distance of about 2 k.m. from the earlier bus stand. A notification to that effect was issued by the District Magistrate, West Tripura, Agartala on 22.11.1995 and a public notification was also issued which reads as follows : "Notification It is hereby notified for the convenience of the public that as per decision of the State Transport Authority it is notified for all owners of motor vehicles, workers, employees and the general public that today 5.6.1996 newly constructed Agartala Radhanagar Motor Stand has been inaugurated. All stage carriage vehicles plying from this stand to Narsingarh, Bamutia, Simna, Abhicharan Para, Sonai under Mohanpur Block i.e. all stage carriage vehicles plying in routes within Sadar North will make movement from Radhanagar instead of Agartala Motor Stand, Agartala Stand in front of Agartala Tulshibati School. Under no circumstances, all stage carriage vehicles moving from the said station will be allowed to cross Radhanagar Motor Stand and to move to and from Agartala town. The town buses plying on route No. 4 will ply from Radhanagar Motor Stand from today in place of Agartala Motor Stand. The Motor owners and concerned persons are being informed on behalf of the State Transport Authority that they should immediately approach the concerned offices for correction of their permits accordingly. Sd/- Secretary State Transport Authority Traipura, Agartala." 2. The above notification was challenged by the petitioners under the forum of Narsingarh Mini Bus Owners Syndicate in Civil Rule No. 43/1997 and the said writ petition was dismissed by the learned Single Judge vide order dated 30.9.1997. Sd/- Secretary State Transport Authority Traipura, Agartala." 2. The above notification was challenged by the petitioners under the forum of Narsingarh Mini Bus Owners Syndicate in Civil Rule No. 43/1997 and the said writ petition was dismissed by the learned Single Judge vide order dated 30.9.1997. The petitioners thereafter preferred a writ appeal being Writ Appeal No. 568/97 and appellate court vide order dated 12.11.1997 disposed of the appeal by modifying the judgment. The directions given by the Division Bench reads as follows : - "There shall be a direction to the Regional Transport Authority that before giving effect to the Notification dated 22nd November, 1996, referred to in the writ petition, notice shall be given to the 2nd appellant/writ petitioner for being heard in regard to the alteration of the route of the bus with reference to the Permit granted in his favour, as contemplated Under Section72(2) of the Act. After hearing the petitioner/2nd appellate in this behalf, appropriate orders may be passed by the competent authority. We make it clear that we are not finding it necessary to quash the Notification referred to above inasmuch as what is required is an opportunity of being heard to be given to the concerned person before action is taken to implement the Notification referred to above; and for that purpose, this order has been passed directing the Regional Transport Authority to issue notice to the 2nd appellant/petitioner. Subsequently, after hearing either the appellant or his counsel, as the case may be, suitable orders may be passed by the competent authority in accordance with the law. Till such time, the Notifications referred to above shall not be given effect to with regard to the Permit held by the 2nd appellant. It is further made clear that the Regional Transport Authority shall comply with this order of the Court within a period of 4(four) weeks from today." 3. Till such time, the Notifications referred to above shall not be given effect to with regard to the Permit held by the 2nd appellant. It is further made clear that the Regional Transport Authority shall comply with this order of the Court within a period of 4(four) weeks from today." 3. Pursuant to the direction of this court, the State Transport Authority, upon hearing the petitioners, rejected the objections raised by them and vide impugned order dated 11.11.1998 directed as follows :- "It is now, therefore, ordered that all concerned should abide by the directions given in the Notification dated 5.9.1998 issued by Secretary, State Transport Authority, Tripura, Agartala and Notification No. 2318-25/F.4(1)/DM/official/96 dated 22.11.1996 issued by District Magistrate, West Tripura, Agartala in which it was notified that all category of passengers vehicles operating Sadar North area should originate only from Radhanagar Motor Stand and cannot move with passengers beyond the said stand towards Agartala town. This will take immediate effect." 4. Hence, this writ petition. 5. The impugned order has been challenged on the following grounds :- (1) that if the Bus Stand or Terminus is allowed to be shifted to Radhangar Bus Stand a total distance of the route which at present stands 23 k.m., shall be reduced to by 2 k.m. and it will be violative of the provisions of Section 72 of the Motor Vehicles Act; (2) that the District Magistrate has no power to declare a Terminus. 6. I have heard Mr. A.K. Bhowmik, the learned senior counsel assisted by Mr. S. Ghosh, learned Advocate appearing on behalf of the petitioners. Also heard Mr. T.K. Roy, learned Advocate General, Tripura assisted by Mr. T. Dutta Majumder, learned Advocate appearing for the State-respondents. 7. The learned Advocate General appearing for the State-respondents has submitted that the plea of varying of conditions of route permit was never raised by the petitioners in their earlier Civil Rule although they could have raised the same and as such they are now barred to raise the same in view of the principles of res judicata. It is further submitted that the writ petition is liable to be dismissed in limine as the petitioners have not come with clean hands and none of them have any locus to challenge the impugned notification because at the time of filing of the present writ petition, none of the petitioners have any valid permit. It is further submitted that the writ petition is liable to be dismissed in limine as the petitioners have not come with clean hands and none of them have any locus to challenge the impugned notification because at the time of filing of the present writ petition, none of the petitioners have any valid permit. As a matter of fact, during the pendency of the writ appeal itself, the validity of the permit issued to the five petitioners had expired and as such the Division Bench has directed the Regional Transport Authority to issue notice and hear the appellant Dinesh Sarkar only as the permit of Dinesh Sarkar was going to expire in October, 1998 only. The impugned order was passed on 9.11.1998 when the permit issued to Dinesh Sarka also expired and when the present writ petition was filed none of the writ petitioners had any valid permit to ply the stage carriage buses on the route. 8. The learned Advocate General has further submitted that in spite of having no valid permit, the petitioners before us are plying their busses which is evident from their own admission in para 6 of their application in CM. Application No. 342 of 2003. 9. The stand taken by the State-respondents is that Section 72 of the Motor Vehicles Act is not applicable to the present case and the notification was issued by the competent authority Under Section 115 read with Section 117 of the Motor Vehicles Act and the subsequent notification was issued by the District Magistrate has provided under Rule 105 of the Tripura Motor Vehicles Rules. 10. 10. Sub-clause (xxii) of Section 72 of the Motor Vehicles Act (corresponding to Section 48 of the old Act) reads as follows :- "(xxii) 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; Provided that the conditions specified in pursuance of Clause (i) shall not be varied so as to alter the distance covered by the original route by more than 24 kilometres, and any variation within such limits shall be made only after the Regional Transport Authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof." 11. Mr. A.K. Bhowmik, the learned senior counsel appearing for the petitioners has fairly submitted that the plea of variation was not raised by the petitioners in their earlier writ petition, but this being a point of law, it may be considered by this court in the present writ petition. It is submitted that varying of the conditions of the permit is permissible only when they are incorporated in the permit. 12. The learned counsel has placed reliance on the decision of the Full Court of the Madras High Court in the case of S. V. Natesa Mudaliar v. Dhanapal Bus Service Pvt. Ltd. and Ors. reported in AIR 1964 Mad 136 on which reliance has been placed reads as follows :- "On an examination of the relevant provisions of the Act, we are of opinion that a route in regard to a stage carriage permit is not one of the conditions attached to it, but is part, of the permit itself. There is no power in the Regional Transport Authority to vary the routine exercise of its powers of variation regarding the alteration or change of the conditions in the permit. The application of the first respondent before the Regional Transport Authority was therefore incompetent." 13. Mr. Bhowmik has also placed reliance on a decision of the Apex Court in the case of Shri Ram Vilas Service Ltd. v. Raman and Raman Put. Ltd. reported in. The Apex Court held : "8. The application of the first respondent before the Regional Transport Authority was therefore incompetent." 13. Mr. Bhowmik has also placed reliance on a decision of the Apex Court in the case of Shri Ram Vilas Service Ltd. v. Raman and Raman Put. Ltd. reported in. The Apex Court held : "8. It seems to us that the High Court erred in holding that Section 48(3)(xxi)of the Act as amended, by itself gave power to the Regional Transport Authority to vary the route within certain limits. This power, in our view, would be exercisable only if a condition to that effect is put in the permit. In the case of the appellant we saw the permit and what it contained was a condition similar to the condition mentioned in Section 48(3)(xxi) before its amendment by Act III of 1964. Therefore, for the purpose of this appeal we must treat Section 48(3)(xxi), as amended, as nonexistent. If Section 48(3)(xxi) as amended, is treated as non-existent, then there can be no difficulty in coming to the conclusion that no limitation has been placed on the powers of the Regional Transport Authority in respect of the grant of applications for variation of the route. The order of the Regional Transport Authority cannot therefore, be challenged as being beyond its jurisdiction." 14. In the present case, even if we accept the contentions of Mr. Bhowmik, we find that the alleged variation is in respect of only 2 k.m. of road and as such it is permissible Under Section 72 of the Act and the only requirement was that the Regional Transport Authority must give one month's notice. In the present case, in view of the decision of this court in earlier writ petition, notices were duly given and after hearing the parties, the impugned order was passed, thus its satisfied the requirement of Section 72 of the Motor Vehicles Act. 15. Now, let us consider whether the shifting of the Bus Stand at Agartala amounts to various of condition of the route permit or it is covered by Sections 115 and 117 of the Motor Vehicles Act as claimed by the State-respondents. 16. I have perused the copy of the permit filed by the petitioners which provides, "Town Bus Route No. 4 (Agartala-Narsingarh) only". 16. I have perused the copy of the permit filed by the petitioners which provides, "Town Bus Route No. 4 (Agartala-Narsingarh) only". The total distance of the route has also not been mentioned in the permit and it is also not stated as to whether the terminus will be at Agartala or Narsingarh. Admittedly, Agartala is not a small place and the present area of Capital City at Agartala is 16.01 sq. k.m. The condition Nos. 8 and 12 of the permit reads as follows :- "(viii) The vehicle shall comply with all provisions of the M.V. Act, 1988 and rules thereunder. (xii) The vehicle should strictly followed both starting and terminating points." 17. Clause (xii) of the permit, therefore, categorically provides that the permit holder must strictly follow the starting and terminating point. The permit nowhere contains any clause that the terminating point at Agartala will be Agartala Motor Stand. On the other hand, Section 117 of the Motor Vehicles Act provides as follows :- "117. Parking places and halting stations. - The State Government or any authority authorised in this behalf by the State Government may, in consultation with the local authority having jurisdiction in the area concerned, determine places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers." 18. The justification given by the State authority for shifting of the Bus Stand at Radhanagar at Agartala reads as follows :- "The road position existing in Agartala town area does not permit heavy rush of vehicles in town area, like Big OMNIBUS/Passengers Carrier in which a good number of Rickshaws, Auto-Rickshaws, Private vehicles etc. Above all good number of pedestrian are using same portion of the roads in Agartala town area. Moreover excessive number of vehicles, operated vehicles in particulars are causing Air-pollution to a great extent in Agartala town area where lakhs of residents as well as other persons in town areas from different parts of Tripura are the worst sufferer." Shifting of Bus Stand, parking place, jail etc. in a developing city or town has become a routine matter. Moreover excessive number of vehicles, operated vehicles in particulars are causing Air-pollution to a great extent in Agartala town area where lakhs of residents as well as other persons in town areas from different parts of Tripura are the worst sufferer." Shifting of Bus Stand, parking place, jail etc. in a developing city or town has become a routine matter. These are required for decongesting a city and the concerned authorities, in the public interest, take all such measures for re-allocation of market, parking places etc. to protect the environment, sanitation and public safety. Section 115 of the Motor Vehicles Act, the another enabling the State Government or any authority authorised by the State Government to restrict class/type of vehicles in a particular/specified route or area. 19. The learned Advocate General has referred to a decision of the Hon'ble Karnataka High Court in the case of Girimallappa and Ors. v. Chairman, Regional Transport Authority, Bellary and Ors., reported in AIR 1998 Karnataka 182 . The Hon'ble Karnataka High Court observed : "It will be seen that if an authority has power to set up a bus stand or if an authority has the power to decide which will be the halting place of the buses, then it is implied that the authority can also exercise the power of shifting the bus stand." 20. In the case of Hari Om Gautam, appellant v. District Magistrate Mathura and Anr., respondents, reported in AIR 1967 SC 1339 the Apex Court held that the powers in the matter provided for in Sub-clauses 21 and 22 of Clause 2 of Section 96 of the Motor Vehicles Act. 21. In the present case, I find that there is no allegation that the Bus Stand at Radhanagar is not fully established or lacks any amenities or there is any other hindrances in using the same as a terminus for North bound vehicles. Admittedly, the vehicle population in Agartala City along with the population of the City has increased manifold since the establishment of a terminus at Agartala Motor Stand and apparently a new spot is required to be developed in the interest of public convenience and public safety. The entire progress cannot be halted merely because the petitioners apprehend adverse impact on their interest. 22. The entire progress cannot be halted merely because the petitioners apprehend adverse impact on their interest. 22. In view of what is stated above, I find no merit in this writ petition and accordingly the writ petition stands dismissed with costs. 23. At this stage, the learned counsel for the petitioners has submitted that the petitioners have filed their applications for renewal of the stage carriage permit and deposited the required fees etc. but no action has been taken by the respondent authority. The learned Advocate General has stated that the State Government will consider all fresh applications for stage carriage permit and the petitioners will be at a liberty to make applications, if they are desirable to ply the stage carriage buses on that route.