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2005 DIGILAW 643 (CAL)

Sujata Ganguly v. STATE OF WEST BENGAL

2005-09-27

DILIP KUMAR SETH, SOUMITRA PAL

body2005
Judgment :- (1). CASES were coming before the Court every now and then that the State transport Authority (STA) was refusing permit originating and terminating from the city of Kolkata and Howrah on the ground of pollution and congestion in the bus terminus and sometimes immediately thereafter such permits were being granted. In some cases the refusal was supported by an alleged policy decision of the Government which was also so disclosed in some cases by affidavit. Ultimately, it was found that no such policy decision was ever taken in the circumstances, this Court having faced difficult situation in deciding this question, where the State Government was taking different stands in different cases, directed the State Government to form a committee to submit a report on the two grounds on which permits were being refused, and on the basis of such report to take a policy decision as it might think fit and proper. 1. 1. Accordingly, a committee was appointed. The committee after going into the matters had submitted its report. Upon consideration of the said report the Government took a policy decision. This policy decision was notified by notification No. 3438-WT/bm-139/2004 dated 2nd August, 2004. This notification was published in the Official Gazette on 6 August, 2004. By reason of the said notification a policy decision was intimated to the public prohibiting issue of new permits in respect of Stage Carriages on the routes both notified and non-notified touching/originating/terminating at Kolkata and H0owrah CBD (Central business District) viz, Esplanade and Band Stand in Kolkata and Howrah station and approach areas of Howrah Bridge (Rabindra Setu). 1. 2. By reason of this notification various writ petitions were moved on the ground that some offer letters were issued before 6th August, 2004 but on account of the interim order granted in this appeal no permit was being granted and there are various other grounds on which various applications were being made. After impleading respective applicants as parties to the appeal various interim orders were being issued. 1. 3. Now the time has come to call it a day. Since, a policy decision has already been adopted and a notification under section 71 (3) (a) of the Motor vehicles Act, 1988 has since been issued in respect of the city of Kolkata and howrah respectively, the question has to be decided as to how the permits are to be granted. Since, a policy decision has already been adopted and a notification under section 71 (3) (a) of the Motor vehicles Act, 1988 has since been issued in respect of the city of Kolkata and howrah respectively, the question has to be decided as to how the permits are to be granted. By reason of the said policy decision various operators are facing various difficulties. These are being highlighted before us. Each individual case requires individual attention in respect of the case pleaded. However the cases may be categorized in few groups having common points in between them. It is for the State Government to formulate a scheme for dealing with these various kinds of cases grouping them in different groups having common questions involved. Preliminary objection : Locus standi of the appellant: (2). MR. Manick Das, learned Advocate for some of the applicants has taken a preliminary objection to the maintainability of the writ petition and the appeal on the ground that the writ petitioners have no locus standi since they are not interested in the plying of the vehicle; they are only common people. According to him the writ petition can only be treated as Public Interest Litigation which this Court cannot entertain. It should have been moved before the appropriate bench dealing with Public Interest Litigation. 2. 1. We are unable to agree with the proposition advanced by Mr. Das for the simple reason that this Court had directed the State Government to form a policy in view of the fact that everyday inconsistent stands were being taken by the State for which this Court was being called upon to decide the issues on divergent stands and which really perplexed the Court as to how to deal with this question and the Court was being flooded with cases unnecessarily.-The courts valuable time was being encroached upon by reason of a situation emanating from the divergent stand taken by the State Transport Authority and the Government, as the case may, be for which the Court thought it fit to intervene into the matter to streamline the system in order to prevent the flooding of the Court having determination with unnecessary litigation. It was in the interest of the Court having determination that this Court activated itself. It was, in fact, for preserving the process of the Court by saving itself from being flooded with unnecessary litigation. It was in the interest of the Court having determination that this Court activated itself. It was, in fact, for preserving the process of the Court by saving itself from being flooded with unnecessary litigation. It was not for the interest of the writ petitioners or the appellants as the case may be. Therefore, we do not think that it could be a Public Interest Litigation for being excluded from the determination of this Court. In any event this point was taken by Mr. Das alone. This point has not been supported by any of the Counsel for any of the other operators or the parties added in this appeal. 2. 2. That apart it seems that once the matter is settled it will enure to the benefit not only to the other operators but also to the operators represented by Mr. Das as well. One cannot claim that there should be disorder in the whole system in which some designing people can fish in the troubled water and a systematic process should not be introduced. One cannot oppose the streamlining of the system itself under which he is supposed to gain. Therefore, we overrule the point of maintainability taken by Mr. Das. Section 68 (3) (b) : Scope and ambit: Interpretation: (3). MR. Dutta, learned Counsel appearing on behalf of the appellant had taken a point that the State Transport Authority has no jurisdiction to grant any permit in inter-regional routes or in intra-regional routes. The answer to this question may be found under section 68 (3) clause (b) of the 1988 Act. Normally, a Regional Transport Authority is supposed to deal with the question of grant of permit in intra-regional routes and interregional routes but in terms of clause (b) sub-section (3) of section 68, the State Transport Authority is empowered to perform the duties of the Regional Transport Authority in case (i) where there is no such transport authority; (ii) where it thinks fit to perform those duties in respect of that route common to two or more regions and (iii) where it is so required by the Regional Transport Authority to perform duties in respect of any routes common to two or more regions. Thus, this provision empowers the State Transport Authority to perform all and every duty even in respect of intra-regional routes where there is no regional transport authority. Thus, this provision empowers the State Transport Authority to perform all and every duty even in respect of intra-regional routes where there is no regional transport authority. But in cases where there are Regional Transport Authority, the State Transport authority cannot deal with the grant of permit in intra-regional routes. However, it can deal with permits if the route is common to two or more regions in cases it is so required by the Regional Transport Authority to perform such duties and also in cases where the State Transport Authority thinks it fit to perform such duties in respect of such routes. Therefore, there is no total embargo on the State Transport Authority to deal with such cases; but it is expected that the State Transport Authority should make it clear by declaring a policy as to whether in and which case it would take up on itself the responsibility of granting permits in route common to two or more regions. 3. 1. A plain reading of section 68 reveals that the power of the Regional transport Authority can be exercised by the State Transport Authority only within the scope and ambit provided in clause (b) of section 68 (3). The exercise of power of the State Transport Authority in relation to grant of permit is thus restricted within the conditions provided in clause (b) of section 68 (3). 3. 2. This provision has to be read in consonance with the other provisions relating to grant of permit provided in sections 69, 80 and 81 of the Motor vehicles Act, 1988 along with Rule 86 of the West Bengal Motor Vehicle Rules, 1989. Section 69 deals with all kinds of permits and it provides that it has to be made only to the Regional Transport Authority of the region in which vehicles are proposed to be used. If the vehicles are proposed to be used in two or more regions lying within the same State, then also the application is to be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies. In case the route or area in each region is approximately equal, then to the Regional Transport Authority of the region in which the vehicle is proposed to be kept. In case the route or area in each region is approximately equal, then to the Regional Transport Authority of the region in which the vehicle is proposed to be kept. In case the area lies in one or more region lying in different states, then the application is to be made to the Regional transport Authority of the region in which the applicant resides or has his principal place of business. Section 69 does not provide that an application could be made to the State Transport Authority in any circumstances. Therefore the State Transport Authority can exercise the power of the Regional Transport authority only within the scope and ambit of section 68 (3) (b). However, section 80 also speaks of Regional Transport Authority. Thus, in normal course or in other words, ordinarily the State Transport Authority cannot entertain any application for permit except in cases coming within section 68 (3) clause (b) that too in accordance with Rule 86 empowering the State Transport Authority to discharge the function of Regional Transport Authority in appropriate cases subject, however, to the approval of the State Government. In case the State transport Authority takes upon itself the function of granting permit, in that event, there might be administrative difficulty. In such cases, it can regulate and coordinate through the Regional Transport Authority and can take upon the question of grant of permit only when the State Government approves such exercise of power by appropriate decision declared by it. 3. 3. This is more so because of clause (a) of sub-section (3) of section 68 requiring a State Transport Authority to co-ordinate and regulate the activities and policies of the Regional Transport Authority of the State. Therefore, in case if the State Transport Authority so thinks fit, it can so deal with grant of permit in routes common to two or more regions in order to sub-serve the necessity provided in clause (a) of sub-section (3) of section 68 read with clause v that too in accordance with Rule 86. It is further clarified by clause (c) which empowers the State Transport Authority to settle all disputes and decide all matters in which there might be difference of opinion between Regional transport Authorities. It is further clarified by clause (c) which empowers the State Transport Authority to settle all disputes and decide all matters in which there might be difference of opinion between Regional transport Authorities. Therefore, the law being clear, the special power of the state Transport Authority can be exercised within the scope and ambit as provided therein subject to approval of the State Government as contemplated under Rule 86. 3. 4. It is expected that the Government and the State Transport Authority, as the case may be, shall take appropriate steps so as to ensure compliance of performance of its duty provided under clause (a) and more so in relations to clause (b) and clause (c) as the case may be in consonance with Rule 86 and it is expected that the State Government it should declare a policy or its approval in order to make it clear to the operators as to where the respective applications are to be made and the authorities who would be competent to grant such permit in order to regulate and coordinate the activities of the respective regional Transport Authorities, as the case may be. The Policy Decision dated 6th August, 2004: Validity: (4). IT is contended by Mr. Sanat Roy on behalf of one of the respondents that the policy decision has since been challenged in a writ petition with regard to its validity as to whether it is an administrative decision or a statutory function. Therefore, the question of validity of the notification dated 6th August, 2004 shall be kept open to be decided in the writ petition. We are afraid that we can do so after having directed the Government to appoint a committee and on the report whereof to adopt a policy in view of the situation flooding the Court with unnecessary litigations, due to which the Courts were placed in a night-marish position to decide the cases where divergent stands were taken by the State transport Authority. This policy having been declared pursuant to an order of the Court, it is no more open to challenge apart from the fact that this is a policy decision of the State which cannot be reviewed in judicial exercise, unless it is patently ultra vires to the statute. 4. 1. This policy decision is regulatory but not prohibitory. This policy having been declared pursuant to an order of the Court, it is no more open to challenge apart from the fact that this is a policy decision of the State which cannot be reviewed in judicial exercise, unless it is patently ultra vires to the statute. 4. 1. This policy decision is regulatory but not prohibitory. The Government has power to take a policy to regular the operation of the state carriages in the state and it might put certain restrictions which cannot be construed to take away the right guaranteed under Article 19 (1) (g). The entire statutory process for grant of permit in itself is regulatory. Therefore, the said policy decision cannot be assailed even if it is issued in exercise of administrative function when it has been so issued pursuant to the order passed by the Court in view of the burning situation that had engaged not only the Court but also the society as a whole on account of pollution apart from the congestion and inconvenience faced in the respective stands. In any event, this restriction is operated only in the Central Business District in the city of Kolkata and Howrah as notified in the said notification being restricted in Esplanade and Band Stand in Kolkata and Howrah Station and approach areas of Howrah Bridge (Rabindra Setu) in howrah. Therefore, we do not think any reason that there is any infirmity in the notification that was issued. The Policy Decision: Permits: How to be granted: (5). NOW, we may turn to the effect of the notification in respect of the granting of permits. So far as the situation is concerned it might be governed by the following directions: 5. 1. The State Transport Authority and Regional Transport Authority of kolkata and Howrah may issues stage carriage permits against offer letters already issued by the concerned authorities prior to the issue of the Notification no. 3438-WT/m-139/2004 dated 2nd August, 2004 subject however to the notification dated 20th May, 2003 issued under section 71 (3) (a) of the Motor vehicles Act, 1988. No offer letter or permit shall be issued in violation of the policy decision notified on 6th August, 2004. In cases where offer letters have been issued after 6th August, 2004 which violates the policy decision dated 6th august, 2004, no permit shall be granted in respect of such offer letters so issued. 5. No offer letter or permit shall be issued in violation of the policy decision notified on 6th August, 2004. In cases where offer letters have been issued after 6th August, 2004 which violates the policy decision dated 6th august, 2004, no permit shall be granted in respect of such offer letters so issued. 5. 2. The Regional Transport Authority, Kolkata and Howrah may fill-up vacancies against the strength fixed in the notification dated 20th May, 2003 issued under section 71 (3) (a) of the Motor Vehicles Act, 1988. 5. 3. The State Transport Authority may receive the application for grant of stage carnage permit on routes covering to two or more regions only in terms of section 68 (3) (b) of the 1988 Act and Rule 86 of the 1989 Rules and not otherwise and upon declaring a clear policy intimated to all, having regard to the clause (a) and (c) of sub-section (3) of section 68. 5. 4. Subject to the above conditions the Regional Transport Authority, kolkata and Howrah may issue permits against the offer letters already issued in terms of the notification dated 20th May, 2003. 5. 5. The Regional Transport Authority, Kolkata and Howrah, if it so thinks fit, may renew the vacancy existing in different notified routes and may fill up such vacancies remaining after such renew and may also undertake the process of filling up the casual vacancies against notified strength as the case may be. 5. 6. It is pointed out that there are some notified routes notified under section 71 (3) (a). In some cases there are certain existing permits which overlap such notified routes. For the time being such permits might be permitted to be operating subject however to the decision of the State Transport Authority/ regional Transport Authority, as the case may be, upon review. But no fresh permits shall be granted overlapping such routes if not already granted before 6th August, 2004. Routes touching CBD: Whether can be prohibited: (6). THE other question that has been raised that this policy decision prohibits grant of permit only on routes originating from or terminating at CBD of Kolkata and Howrah as notified but also prohibits both the notified and non-notified routes touching CBD Kolkata and Howrah. Such a decision in perverse and ultra vires the statute. 6. 1. THE other question that has been raised that this policy decision prohibits grant of permit only on routes originating from or terminating at CBD of Kolkata and Howrah as notified but also prohibits both the notified and non-notified routes touching CBD Kolkata and Howrah. Such a decision in perverse and ultra vires the statute. 6. 1. We do not think that if such a decision is taken the same can be said to be perverse or ultra vires the statute. Such routes can be operated without touching CBD and in such cases no such permit shall henceforth be granted apart from the permits already operating since prior to 6th August, 2004. In respect of permits granted after 6th August, 2004 the routes should be modified so as not to touch CBD Kolkata and Howrah in terms of the policy declared by the notification published on 6th August, 2004. The Implementation: The process: (7). SUBJECT to what has been observed above and the directions contained herein each case of the operators who are parties in this appeal or who have been added as parties and all other operators shall be decided by the appropriate authorities in the light of the observation made hereinabove and shall decide in each case on the basis of the directions given in this order. Such decisions are to be taken at the earliest preferably within a period of three months from the date of communication of this order to the respective authorities. Mr. N. I. Khan shall take the responsibility of communicating the decision to the respective authorities within a period of seven days he receives a plain copy of this order. 7. 1. This order will not affect the applications or offer letters even if made after 6th August, 2004 if it does not violate or flout the policy decision dated 6th august, 2004 and the notification dated 20th May, 2003 issued under section 71 (3) (a). Order: (8). ALL the applications and the appeals are thus disposed of and shall be guided by the observation made and the directions given in paragraphs 5, 6 and 7 hereinabove. 8. 1. The interim order already granted stands discharged subject to the observation made and the directions given hereinabove. 8. 2. So far as Mr. Order: (8). ALL the applications and the appeals are thus disposed of and shall be guided by the observation made and the directions given in paragraphs 5, 6 and 7 hereinabove. 8. 1. The interim order already granted stands discharged subject to the observation made and the directions given hereinabove. 8. 2. So far as Mr. Majumdars client is concerned in MAT No. 1235 of 2005 and MAT No. 1236 of 2005, the order passed by the learned Single Judge stands modified to the extent as indicated in this order. 8. 3. Plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to Mr. N. I. Khan for such communication by 5th October, 2005. D. K. Seth and Soumitra Pal, JJ. : all the applications and appeals disposed of.