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Calcutta High Court · body

2007 DIGILAW 608 (CAL)

Regional Transport Authority Darjeeling v. Brihattara Siliguri City Auto Operators Association

2007-08-08

PRASENJIT MANDAL, PRATAP KUMAR RAY

body2007
JUDGMENT The Court :- Heard learned Advocate appearing for the parties. 2. All these three appeals arose out of the same judgment dated 20th September, 2006 passed in WA 1401 of 2006 by the learned Trial Judge. Hence all these three appeals are taken up for analogous hearing. As all appeals are relating to the same order, we are modifying the earlier order of filing the paper book as one paper book will suffice to pass the judgment which has been filed in one appeal. 3. By the impugned judgment under appeal the learned Trial Judge directed that the Regional Transport Authority should make necessary endorsement on the permit and on the certificate of registration of the vehicle concerned or issue a stage carriage permit following the procedure if such conversion has not already taken place. The impugned judgment reads such : “This writ petition is disposed of with a direction that if the writ petitioner has a valid permit, namely, either contract carriage permit or stage carriage permit, the writ petitioner should be allowed to operate on the basis thereof and there should not be any unnecessary or illegal interference or obstruction to the petitioners’ right of operation whose vehicle is covered by a valid permit. Mr. Banerjee submits that the authority concerned has already converted the contract carriage permit into a stage carriage permit. It is directed that the authority concerned should make the necessary endorsement on the permit and on the certificate of registration of the vehicle concerned or issue a stage carriage permit following the procedure, if such conversion has not already taken place within a reasonable time and in any event within a period of four weeks from the date of communication of this order.” 4. On reading the judgment under appeal and the writ application it appears that the Association of Three Wheelers Passengers Transport Vehicles Operators moved the writ application praying for the following reliefs :- “a) A Writ in the nature of Mandamus commanding the Respondents, their men and agents to cause endorsement in the certificate of Registration “stage carriage” in terms of Memo dated 12.6.2006 regarding stage wise fare structure ; b) A further writ in the nature of Mandamus commanding the Respondents, their men and agents to show cause as to why tax should not be accepted as provided for stage carriage in terms of the Memo dated 12.6.2006; c) A writ in the nature of Certiorari calling upon the Respondents to bring all the relevant documents relating to this matter before this Hon’ble Court so that conscionable justice may be done; d) Injunction restraining the Respondents No. 8 and 9 from interfering with the plying of the vehicles of the petitioners in terms of Memo dated 12.06.2006; e) Rule NISI in terms of prayers (a), (b), (c) and (d) above ; f) Rule be made absolute should respondents fail to show cause, or sufficient cause ; g) Interim order of Injunction restraining the Respondent Nos. 8 and 9 and their men and agents interfering with the plying of the vehicles of your petitioners in accordance with Memo dated 12.6.2006 issued for charging stage wise fare ; h) Ad-interim order in terms of prayer (g) above ; i) Such further order or orders as Your Lordships may deem fit and proper.” In the writ application it is a positive case that the writ petitioners is the Association of Transport Vehicles Operators who are plying their vehicles three wheelers on the basis of contract carriage permit. They prayed for conversion of such contract carriage permit to stage carriage permit. In that angle the impugned judgment was passed directing such conversion. To test the legality and validity of the impugned judgment in appeal we have to consider the statutory provisions first to identify the nature of different permits viz., stage carriage and contract carriage. Sections 70, 71 and 72 deals with the procedure of filing application, consideration of such application and grant of permit viz., stage carriage permit. The stage carriage permit has been defined under Section 2(4) of the Motor Vehicles Act, 1988. Sections 70, 71 and 72 deals with the procedure of filing application, consideration of such application and grant of permit viz., stage carriage permit. The stage carriage permit has been defined under Section 2(4) of the Motor Vehicles Act, 1988. The Sections 70, 71 & 72 read thus – “70. Application for stage carriage permit, -(1) An application for a permit in respect of a stage carriage (in this Chapter referred to as a stage carriage permit) or as a reserve stage carriage shall, as far as may be, contain the following particulars, namely:- (a) the route or routes or the area or areas to which the application relates; (b) the type and seating capacity of each such vehicle; (c) the minimum and maximum number of daily trips proposed to be provided and the time-table of the normal trips. Explanation.- For the purposes of this section, section 72, section 80 and section 102, “trip” means a single journey from one point to another; and every return journey shall be deemed to be a separate trip; (d) the number of vehicles intended to be kept in reserve to maintain the service and to provide for special occasions; (e) the arrangements intended to be made for the housing, maintenance and repair of the vehicles, for the comfort and convenience of passengers and for the storage and safe custody of luggage; (f) such other matters as may be prescribed. (2) An application referred to in sub-section (1) shall be accompanied by such documents as may be prescribed. 71. Procedure of Regional Transport Authority in considering application for stage carriage permit.- (1) A Regional Transport Authority shall, while considering an application for a stage carriage permit, have regard to the objects of this Act. (2) A regional Transport Authority shall refuse to grant a stage carriage permit if it appears from any time-table furnished that the provisions of this Act relating to the speed at which vehicles may be driven are likely to be contravened. Provided that before such refusal an opportunity shall be given to the applicant to amend the timetable so as to conform to the said provisions. Provided that before such refusal an opportunity shall be given to the applicant to amend the timetable so as to conform to the said provisions. (3) (a) The State Government shall, if so directed by the Central Government having regard to the number of vehicles, road conditions and other relevant matters, by notification in the Official Gazette, direct a State Transport Authority and a Regional Transport Authority to limit the number of stage carriage generally or of any specified type, as may be fixed and specified in the notification, operating on city routes in towns with a population of not less than five lakhs. (b) Where the number of stage carriages are fixed under clause (a), the Government of the State shall reserve in the State certain percentage of stage carriage permits for the scheduled castes and the scheduled tribes in the same ratio as in the case of appointments made by direct recruitment to public services in the State. (c) Where the number of stage carriages are fixed under clause (a), the Regional Transport Authority shall reserve such number of permits for the scheduled castes and the scheduled tribes as may be fixed by the State Government under sub-clause (b). (d) After reserving such number of permits as is referred to in clause (c), the Regional Transport Authority shall in considering an application have regard to the following matters, namely :- (i) financial stability of the applicant; (ii) satisfactory performance as a stage carriage operator including payment of tax if the applicant is or has been an operator of stage carriage service, and (iii) such other matters as may be prescribed by the State Government; Provided that, other conditions being equal, preference shall be given to applications for permits from – (i) State transport undertakings; (ii) Co-operative societies registered or deemed to have been registered under any enactment for the time being in force ; (iii) Ex-servicemen (iv) Any other class or category of persons, as the State Government may, for reasons to be recorded in writing, consider necessary. 72. 72. Grant of stage carriage permit.- (1) Subject to the provisions of section 71, a Regional Transport Authority may, on an application made to it under section 70, grant a stage carriage permit in accordance with the application or with such modificat5ions as it deems fit or refuse to grant such a permit; Provided that no such permit shall be granted in respect of any route or area not specified in the application. (2) The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a stage carriage of a specified description and may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely :- (i) that the vehicles shall be used only in a specified area, or on a specified route or routes; (ii) that the operation of the stage carriage shall be commenced with effect from a specified date; (iii) the minimum and maximum number of daily trips to be provided in relation to any route or area generally or on specified days and occasions; (iv) that copies of the time-table of the stage carriage approved by the Regional Transport Authority shall be exhibited on the vehicles and at specified stands and halts on the route or within the area; (v) that the stage carriage shall be operated within such margins of deviation from the approved time-table as the Regional Transport Authority may from time to time specify; (vi) that within municipal limits and such other areas and places as may be prescribed, passengers or goods shall not be taken up or set down exempt at specified points; (vii) the maximum number of passengers and the maximum weight of luggage that may be carried on the stage carriage, either generally or on specified occasions or at specified times and seasons; (viii) the weight and nature of passengers’ luggage that shall be carried free of charge, the total weight of luggage that may be carried in relation to each passenger, and the arrangements that shall be made for the carriage of luggage without causing inconvenience to passengers. (ix) The rate of charge that may be levied for passengers’ luggage in excess of the free allowance; (x) That vehicles of a specified type fitted with body conforming to approved specifications shall be used; Provided that the attachment of this condition to a permit shall not prevent the continued use, for a period of two years from the date of publication of the approved specifications, of any vehicle operating on that date; xi) that specified standards of comfort and cleanliness shall be maintained in the vehicles; (xii) the conditions subject to which goods may be carried in the stage carriage in addition to or to the exclusion of passengers; (xiii) fares shall be charged in accordance with the approved fare table; (xiv) that a copy of, or extract from, the fate table approved by the Regional Transport Authority and particulars of any special fares or rates of fares so approved for particular occasions shall be exhibited on the stage carriage and at specified stands and halts; (xv) that tickets bearing specified particulars shall be issued to passengers and shall show the fares actually charged and that records of tickets issued shall be kept in a specified manner; (xvi) that mails shall be carried on the vehicle subject to such conditions (including conditions as to the time in which mails are to be carried and the charges which may be levied) as may be specified; (xvii) the vehicles to be kept as reserve by the holder of the permit to maintain the operation and to provide for special occasions; (xviii) the conditions subject to which vehicle may be used as a contract carriage; (xix) that specified arrangements shall be made for the housing, maintenance and repair of vehicle; (xx) that any specified bus station or shelter maintained by Government or a local authority shall be used and that any specified rent or fee shall be paid for such use; (xxi) that the conditions of the permit shall not be departed from, save with the approval of the Regional Transport Authority; (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; (xxiii) that the holder of a 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; (xxiv) any other conditions which may be prescribed. 6. The word motor vehicles as used in the said definition of stage carriage also has been defined under Section 2(28) of the said Act which reads thus – “motor vehicle” or “vehicle” means any mechanically propelled vehicle adapted for use upon roads whether the power or propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty-five cubic centimetres.” 7. Grant of contract carriage permit is done following the procedure as laid down in Sections 73 and 74. The relevant provisions of grant of the contract carriage permit is quoted as follows :- “74. Grant of contract carriage permit. – (1) Subject to the provisions of sub-section (3), a Regional Transport Authority may, on an application made to it under section 73, grant a contract carriage permit 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 not specified in the application. Provided that no such permit shall be granted in respect of any area not specified in the application. (2) The Regional Transport Authority, if it decides to grant a contract carriage permit, may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely :- (i) that the vehicles shall be used only in a specified area or on a specified route or routes; (ii) that except in accordance with specified conditions, no contract of hiring, other than an extension or modification of a subsisting contract, may be entered into outside the specified area; (iii) the maximum number of passengers and the maximum weight of luggage that may be carried on the vehicles, either generally or on specified occasions or at specified times and seasons; (iv) the conditions subject to which goods may be carried in any contract carriage in addition to, or to the exclusion of, passengers; (v) that, in the case of motorcabs, specified fares or rates of fares shall be charged and a copy of the fare table shall be exhibited on the vehicle; (vi) that, in the case of vehicles other than motorcabs, specified rates of hiring not exceeding specified maximum shall be charged; (vii) that in the case of motorcabs, a specified weight of passengers’ luggage shall be carried free of charge, and that the charge, if any, for any luggage in excess thereof shall be at a specified rate; (viii) that, in the case of motorcabs, a taximeter shall be fitted and maintained in proper working order, if prescribed; (ix) 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; (x) that the conditions of permit shall not be departed from save with the approval of the Regional Transport Authority; (xi) that specified standards of comfort and cleanliness shall be maintained in the vehicles; (xii) that, except in the circumstances of exceptional nature, the plying of the vehicle or carrying of the passengers shall not be refused; (xiii) any other conditions which may be prescribed. (3) (a) The State Government shall, if so directed by the Central Government, having regard to the number of vehicles, road conditions and other relevant matters, by notification in the Official Gazette, direct a State Transport Authority and a Regional Transport Authority to limit the number of contract carriage s generally or of any specified type as may be fixed and specified in the notification, operating on city routes in towns with a population of not less than five lakhs. (b) Where the number of contract carriages are fixed under clause (a), the Regional Transport Authority shall, in considering an application for the grant of permit in respect of any such contract carriage, have regard to the following matters, namely:- (i) financial stability of the applicant; (ii) satisfactory performance as a contract carriage operator including payment of tax if the applicant is or has been an operator of contract carriages; and (iii) such other matters as may be prescribed by the State Government: Provided that, other conditions being equal, preference shall be given to applications for permits from – (i) the India Tourism Development Corporation; (ii) State Tourism Development Corporation; (iii) State Tourism Departments; (iv) State transport undertakings; (v) Co-operative societies registered or deemed to have been registered under any enactment for the time being in force; (vi) Ex-servicemen. 8. On a bare reading of the aforesaid statutory provisions it appears that the nature, purpose and object of grant of stage carriage permit and contract carriage permit are completely different. Under the four corners of the statute viz., Motor Vehicles Act, 1988 there is no provision that a vehicle which is plying under contract carriage permit could be converted under a stage carriage permit by filing such conversion application. Unless there is a statutory provision empowering a statutory body, the Regional Transport authority to do such, the said Authority cannot do it and High Court also sitting on the writ jurisdiction cannot pass any writ of mandamus commanding the statutory body to act contrary to the statutory provisions. This is a settled legal proposition. Reliance may be placed based in the case of Union of India & Anr. Vs. This is a settled legal proposition. Reliance may be placed based in the case of Union of India & Anr. Vs. Kiloskar Pneumatic reported in (1996) 4 SCC 453 wherein the Apex Court held that a Writ Court under Article 226 of the Constitution of India cannot direct a statutory authority to act contrary to the law and/or contrary to the statutory provisions. Hence, as there is no statutory provisions on conversion of any stage carriage to a contract carriage, the statutory body viz., Regional Transport Authority has no jurisdiction. The arena of jurisdiction of the said Authority is contoured with the statutory provisions and/or limitation. It is a settled legal proposition of the law that a statutory body must act in terms of the statutory provisions and cannot act beyond the statutory provisions, whereas an individual can do all things save and except as are not prohibited under the statute. Reliance may be placed to the judgment based in the case Bhabnagar University vs. Palitana Sugar Mills (P) Ltd. reported in (2003) 2 SCC 111 , Managing Committee vs. Sree Nemotullah reported in (1969) 2 SCC 551 , S.R. Tiwari vs. District Board, Agra reported in AIR 1964 SC 1680 and the judgment in the case Sree K. Ramdas Shenoy vs. Chief Office, Town Municipal Council, Udipi and Ors. reported in (1974) 2 SCC 506 . 9. Having regard to the aforesaid settled legal position, it appears before us that the Regional Transport Authority being a creature of a statute only can exercise his power about grant of stage carriage permit under Section 72 of the said Act and contract carriage permit under Section 74 of the said Act. The said statutory body has no power to convert any contract carriage permit to a stage carriage permit as under the law there is no such scope of conversion and furthermore, if we consider the etymological word `permit’, the point will be clear. The word `permit’ connotes a legal sanction of any authority allowing someone to follow a certain course of action in the manner of running his business or doing something authorising him to do such under the statute. Hence, the permit always is limited with its basic contour of statutory periphery under which such permit is granted. The word `permit’ connotes a legal sanction of any authority allowing someone to follow a certain course of action in the manner of running his business or doing something authorising him to do such under the statute. Hence, the permit always is limited with its basic contour of statutory periphery under which such permit is granted. Under the Motor Vehicles Act, When the legislature at their wisdom has compartment alised the nature of permits in the two sectors, one contract carriage permit and another stage carriage permit by identifying the different features and factors relevant consideration of such grant, the permit as is issued under any head always is limited to be a permit under that particular head/category. Hence, having regard to such and having regard to the statutory provision we fail to appreciate the views expressed by the learned Trial Judge directing conversion of contract carriage permit to stage carriage permit. 10. Learned Advocate for the respondents/writ petitioners, however, submitted that the Regional Transport Authority has already taken a decision as a policy matter to convert the contract carriage permit to stage carriage permit, which, however, has been denied by the State-appellant by annexing resolution of the Regional Transport Authority dated 29th December, 2006 which speaks that no such policy decision was taken. Be that as it may, Learned Trial Judge on the basis of the submission of the learned Advocate for the writ petitioner passed the direction to the Transport Authority to take steps for conversion. As it appears from the documents filed by the State-appellant, the same cannot be implemented as any policy decision even if any such decision exists contrary to the Statutory Provision, the said is null and void the statute has not permitted such conversion. Hence the Learned Trial Judge’s Order to that effect by passing a mandatory direction to convert the nature of permit accordingly is not legally tenable. 11. Having regard to such view, the impugned Judgment under Appeal is not sustainable in the eye of law. The Judgment under Appeal is set aside and quashed. All the three appeals are allowed accordingly and the corresponding writ applications stand dismissed. All the three Stay Applications are also disposed of accordingly in the aforesaid manner. 12. Urgent xerox certified copy of this Judgment be made available to the parties, if applied for, upon compliance of all requisite formalities.