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2009 DIGILAW 186 (CAL)

Basudev Maity v. STATE OF WEST BENGAL

2009-03-06

DEBASISH KAR GUPTA

body2009
Judgment : DEBASISH KAR GUPTA, J. (1) The writ application being W.P. No.10961(W) of 2005(hereinafter referred to as the first writ application) is filed by an operator of stage carriage operating his vehicle on the strength of a permanent stage carriage permit being P.S.T.P. NO.5 of 2002-03 on the route from Kantakhali to Chinchira, District Paschim table in favour of petitioner as also to prevent the Midnapore Zilla Bus Babsayi Samity from issuing rotational time table on the concerned route. (2) The writ application being W.P. No.9655(W) of 2007(hereinafter referred to as second writ application) is filed by twelve operators of stage carriage operating their respective vehicles on the strength of their respective permanent stage carriage permits on the route from Midnapore to Lalgarh (extended up to) Sarenga, Paschim Midnapore. This writ application is filed for a direction upon the respondent authority to grant extension of the rotational time table in respect of the concerned route after withdrawing and/or cancelling the notice dated may 7, 2007 issued for the purpose of submitting individual time table instead of rotational time table. Since, the route relating to the permanent stage carriage permit of the writ petitioner in the first writ application claiming to be on the same alignment of the route relating to the permanent stage carriage permits of the writ petitioner in the second writ application and the issue involved in the matters is one and same, both the writ applications are taken up for analogous hearing with the consent of all the parties to these proceedings. (3) The common facts involved in both the writ applications in a nutshell are as follows:-The Regional Transport Authority, Paschim Midnapore used to issue separate time tables in connection with different permanent stage carriage vehicles attached to different permits. The Regional Transport Authority, Paschim Madnapore, in a joint meeting with its counterpart of Howrah, adopted a resolution dated March 7, 1986, that the Secretaries of both the regions would prepare rotational time table for plying of vehicles on the strength of their permanent stage carriage permits on all the inter-district routes and would place the same in the join meeting of the above Regional Transport Authorities. (4) But the writ petitioner of the first writ application filed a representation dated November 10, 2004 along with some other bus operators to the Secretary, Regional Trasnsport Authority, Midnapore, alleging that some ill minded operators of buses had been plying their vehicles on the basis of rotational time table on the route from Midnapore to Kantakhali. They had introduced some vehicles in that rotational time table without the registration numbers of those vehicles being mentioned in their respective permits. (5) The above representation was followed by another representation dated March 7, 2005, alleging that inspite of obtaining individual fixed time tables they had been prevented by some of the bus operators of the route from Midnapore to Khantakhali to ply their vehicles on the alignment forceively. They had been insisted upon following the rotational time table having no approval from the Regional Transport authority, Midnapore. matter. The subject matter of challenge in the first writ application is the above inaction on the part of the respondent authority. (6) During the pendency of the above writ application, the Regional Transport Authority, Midnapore, acted upon the resolution dated March 7, 1986, by issuing a temporary rotational time table dated May 4, 2006 in respect of the route from Midnapore to Kantakhali. The above rotational time table was valid till December 31, 2006. Some of the bus operators of the above route submitted a representation dated December 21, 2006, before the Secretary, Regional Transport Authority, Midnapore for renewal of the above time table. (7) Thereafter, an application under Article 226 of the Constitution of India being W.P. No.6529(w) of 2007 was filed by the above bus operators for a direction upon the Regional Transport Authority, Midnapore, to renew the above rotational time table. The above writ application was disposed of on April 12, 2007 directing the respondent authority to consider the representation dated December 21, 2006 within the period mentioned therein. (8) Pursuant to the above order, the Secretary Regional Transport authority gave an opportunity of hearing to the parties concerned on April 25, 2007. By communication dated May 7, 2007 the Secretary, Regional Transport Authority, Midnapore, asked the above bus operators to submit individual time tables instead of rotational time table. decision of the respondent authority to issue individual fixed time tables instead of renewing rotational time table. By communication dated May 7, 2007 the Secretary, Regional Transport Authority, Midnapore, asked the above bus operators to submit individual time tables instead of rotational time table. decision of the respondent authority to issue individual fixed time tables instead of renewing rotational time table. (9) It submitted on behalf of the writ petitioner of the first writ application that Chapter V of the Motor Vehicles Act, 1988(hereinafter referred to as the said Act) deal with the control of transport vehicles. Drawing the attention of this court to the provisions of clause (C) of sub-section (1) of Section 70 of the said Act, 1988, it is submitted that an application for a permit in respect of a stage carriage should, as far as may be, contain, amongst others, the minimum and maximum number of daily trips proposed to be provided and the time table of the normal trips. Clause(iv) of sub-section(2) of Section 72 of the said Act, 1988, provided that the Regional Transport Authority, if it decided to grant a stage carriage permit, might grant the permit for a stage carriage of a specified description and might, subject to any Rules that may be made under the said Act, 1988, attach to the permit, a condition, amongst others that copies of the time table of the stage carriage approved by the Regional Transport Authority should be exhibited on the vehicles and at specified stands and halt on the route or within area. Drawing the attention of this court towards the provisions of Rule 118 of the West Bengal Motor Vehicles Act Rules, 1989(hereinafter referred to as the said Rules, 1989), it is submitted on behalf of the writ petitioner of the first writ application that in granting or renewing a permit the transport authority concerned, subject to the provisions of sub-section (3) of Section 80 of the said Act 1988, might attach a condition to the permit at any time during the validity the route for which the permit had been granted in accordance with the time table approved by the Transport Authority and on the other portion only during such period as may be specified and according to such time table as might be approved by the Transport Authority for such portion. According to the petitioner of the first writ application, a harmonious reading of to the above provisions means and purports that the time table issued in connection with a permit specifies a particular time on which the vehicle in question would ply on the route and such time cannot be changed rotationally. Drawing the attention of this court towards individual time table dated April 18, 2005 issued by the Secretary Regional Transport Authority, Purba Midnapore in connection with vehicle No. WB-33/7411 attached to the permanent stage carriage permit no.P.St.P.No.5 of 2002-03, it is submitted that the law does not permit issue of rotational time table interlinking the times specified in the above time table with other stage carriages by modifying the above individual time table. (10) Drawing the attention of this court towards the purported rotational time table dated March 25, 2005 in respect of the route from Lalgarh to Midnapore(extended), it is submitted on behalf of the petitioner of the first writ application that Midnapore Zila Bus Babsayea Samiti unauthorisedly put pressure on the petitioner of the first writ application to ply his vehicle on the alignment following the above rotational time table. According to the petitioner of the first writ application, the above Babsayea Samiti had no authority either time tables. Relying on the decision of Khargram Panchayat Samiti Vs. State of W. B., reported in (1987) 3 SCC 82 , it is submitted on behalf of the writ petitioner that in absence of any expressed provision in the said Act, 1988, or the said Rules, 1989, the authority was not empowered to detract from the substantive power conferred by a statute. Relying upon the decision of P. G Josi Vs. Director General, Posts and Telegraphs, reported in (1975) 4 SCC 584 it is submitted that in the dictionary meaning of "rotational" has an element of change in the position. While the law did not permit to change the time rotationally for the purpose of plying of a vehicle attached to a particular permit. (11) On the other hand it is submitted on behalf of the state respondents that there was not provision either in the said Act, 1988, or in the said Rule, 1989, with regard to issuing a rotational time table. (11) On the other hand it is submitted on behalf of the state respondents that there was not provision either in the said Act, 1988, or in the said Rule, 1989, with regard to issuing a rotational time table. It is further submitted on behalf of the state respondents that on a plain reading of this provisions of the said Act, 1988, and the said Rules, 1989, it appears that approval of time table was a condition of permit. Exhibition of such time table on the vehicle and at specified stands or halts of the concerned route or within the area was a procedural part to be followed by the permit holders in order to enable passengers before at large to know the timing of plying of vehicles on the route. Therefore, the statute confers power upon the authority to approve a time table enabling a vehcile to ply on a route covered under a valid permit. The mode of approving the time table has not been prescribed in the statute. It is for the authority to decide as to which could sub-serve the need of the travelling commuters as a whole. Therefore, the conferment of statutory power on the authorities must be construed as impliedly authorised everything which could fairly or reasonably be exercised as incidental or consequential to the power. So it is within the domain of the Regional Transport Authority to take a decision with regard to the nature of time table (either rotational or individual) in exercise of the incidental or consequential power confers upon it by the statute keeping in mind the interest of the commuters. (12) With regard to the issuing of time table by any association of the bus operators, it is submitted on behalf of the state respondents that no association can have any access over the time table. Therefore, if any time table was issued by the association of any bus owners such time could not be sustained in law. (13) Drawing the attention of this court towards the statements made in the supplementary affidavit affirmed on behalf of the respondent nos.1, 2 and 3 to the first writ application, it is submitted on behalf of the state respondents that steps were been taken against issuing of any rotational time table by any association of the bus operations. (13) Drawing the attention of this court towards the statements made in the supplementary affidavit affirmed on behalf of the respondent nos.1, 2 and 3 to the first writ application, it is submitted on behalf of the state respondents that steps were been taken against issuing of any rotational time table by any association of the bus operations. Drawing the attention of this court towards the order of the Secretary to the Regional Transport Authority, Purba Midnapore issued under memo no.2282/MV dated May 7, 2007 annexed to the second writ application, it is submitted on behalf of the state respondents that the steps had already been taken to issue individual time tables to the different bus operators on the routes under reference having same alignment on those routes. application that the petitioner in the first writ application was not covered in the rotational time table which was issued by the respondent authority for plying the vehicle on the route from Midnapore to Lalgarh (extended up to Saranga). Drawing further attention of this court towards the rotational time tame dated December 12, 2002 issued by the Secretary, Regional Transport Authority, Purba Midnapore under memo no.5200/MV dated December 12, 2002, it is submitted that the rotational time table was issued by the respondent authority. Therefore, allegation of issuing rotational time table by any association is not correct. It is also submitted on behalf of the writ petitioners of the second writ application that the writ petitioner of the first writ application was the single bus operators on the route from Kantakhali to Chichira , Purba Midnapore. Therefore, there was no scope to issue rotational time table on that route. But on the route from Midnapore to Lalgarh(extended up to Saranga) there were a number of bus operators. As a result, the rotational time table was issued in respect of that route. (14) Drawing the attention of this court towards the provisions of Sections 70, 71(iii)(iv) (v), it is submitted that there was no expressed provision with regard to the nature of time table to be issued by the respondent authority. Therefore, individual time table can be issued in connection with a route where there was only one operator. Rotational time table could be issued in case of large number of operators or in connection with amalgamated routes. Therefore, individual time table can be issued in connection with a route where there was only one operator. Rotational time table could be issued in case of large number of operators or in connection with amalgamated routes. It is also submitted on behalf of the petitioners of the second writ application that the decision of the purpose of accommodated every operator to avail of the attractive time. (15) It is submitted on behalf of the petitioners in the second writ application that the respondent authority in exercise of consequential power was at liberty to issue rotational time table for the purpose of controlling the plying of the buses on the route under reference in an equitable manner. Reliance is placed on the provisions of Rule 118 of the said Rules, 1989, in support of the above submissions. Drawing the attention of this court towards the provisions of Rule 119 of the said Rules it is submitted on behalf of the writ petitioners in the second writ application that the Regional Transport Authority is empowered to resolve a dispute. Having heard the learned Counsels appearing for the respective parties and after considering the facts and circumstances, I find that admittedly the writ petitioner of the first writ application, namely Shri Basudev Maity, was an operator of the Vehicle bearing registration No.WB-323/7411(Bus) on route No.Kankhali to Chichira Via Mohar, Debra, Paschim Medinipur, KGP. Rly. Stn. NH6, Lodhasuli, Fekoghat, Chichira and back. It is not in dispute that the Secretary, Regional Transport Authority, Paschim Midnapore issued an individual time table in his favour under Memo No.1548/MV dated April 18, 2005(Annexure p-2 at page 18 to the first writ application. (16) From the records of the second writ application it is revealed that admittedly the writ petitioners of the second writ application were operating their respective vehicles (Buses) on the strength of their respective stage carriage Pirakala, Ramgarh, Brahmandiha. It is not it dispute that the Midnapore Zilla Bus Babsayea Samity issued three rotational time tables, all dated march 25, 2005, on Moyna Route(UP), Moyna Route(Down) and Mohar and Pataspur Route(up and down) respectively(annexure P-3 at pages 19, 2021 to the first writ application). It is not it dispute that the Midnapore Zilla Bus Babsayea Samity issued three rotational time tables, all dated march 25, 2005, on Moyna Route(UP), Moyna Route(Down) and Mohar and Pataspur Route(up and down) respectively(annexure P-3 at pages 19, 2021 to the first writ application). From a bare perusal of the above rotational time tables, it is evident that on the above routes buses were plying touching some of the alignments (namely Debra, Mohar etc) of the route on which the vehicle (Bus) of the petitioner of first writ application was plying. (17) It is revealed from the supplementary affidavit to the affidavit-n-opposition affirmed on behalf of the State respondents in connection with the second writ application that according to State respondents the time table was a condition of stage carriage permit. On the proposal of the grantee such time tables were issued to the permit holders provisionally. It could be changed or altered at any time on the basis of objections of other existing permit holders. The approved time table should be exhibited on the vehicle as also at specified stands and halts on the route or within that area. According to the State respondents, no stage carriage could ply on the route without a fixed time table. According to the State respondents, there was no Statutory provision to issue rotational time table and in the event of issuing rotational time tables, it would be fully controlled by the operators. Consequent thereupon the plying of stage carriages would be totally out of control of the Regional Transport Authority. In this regard the statements below:- "5. I say that according to Section 72(2) (iv) of the Motor Vehicles Act, 1988 the copies of the time table of the stage carriages approved by theRegional Transport Authority shall be exhibited on the vehicles. A fixed time table is issue din respect of individual operator and hence it can be exhibited on the vehicle. So far as rotational time table is concerned, such exhibition on the vehicle is not possible as there is no fixed timing in respect of particular vehicle and the vehicle is allotted by the operators/Association of the Operators rotationally. 6. I say that there is no provision of rotational time table under the Motor Vehicles Act and Rules. So far as rotational time table is concerned, such exhibition on the vehicle is not possible as there is no fixed timing in respect of particular vehicle and the vehicle is allotted by the operators/Association of the Operators rotationally. 6. I say that there is no provision of rotational time table under the Motor Vehicles Act and Rules. If the rotational time table is allowed on the basis of prayer of the operators, it will be fully controlled by the operatorsand in such an event, the plying of buses on the basis of rotational timetable will be totally beyond the control of the Regional Transport Authority. I further say that the Transport Authorities have also beenempowered under the statute to issue the time table to all operators, whoobtain the permit in accordance with law. The operators/Association cannot have any right to control the time tables of the operators in plying their buses in the particular routes on the basis of the valid permits." (18) In the above backdrop the instant mattes, the moot issue to be decided by this Court is the scope of issuing rotational time table for plying stage carriages (buses) on the route. The next issue is the authority of a "Bus Babsyi Samity" to issue rotational time table. (19) With regard to the aforesaid first issue, I find that Clause (c) of sub section(1) of Section 70 of the said Act, 1988 provided as follows:-"S.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). (b) (c) the minimum and maximum number of daily trips proposed to be provided and the time-table of the normal trips." (20) Therefore, an application for a stage carriage permit must be accompanied by a proposed time table of normal trips. In view of the above statutory provision, there was no scope for submitting any proposal for rotational time table meaning thereby a proposal for a time table suggesting containing times for plying of a number of vehicles for plying of those buses rotationally on the basis of that time table. In view of the above statutory provision, there was no scope for submitting any proposal for rotational time table meaning thereby a proposal for a time table suggesting containing times for plying of a number of vehicles for plying of those buses rotationally on the basis of that time table. Clauses (iii) and (iv) of sub-section (2) of Section 72 fo the said Act, 1988 provided as follows:- "S. 72 Grant of stage carriage permit.- (1). (2). (i).. (ii) (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) the 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;" From the above provisions, it is clear enough that a time table having approval of the Regional Transport authority in respect of a stage carriage(Bus) the route or within the area. That provision also shows that there was no scope to approve a time table fixing different times for plying of a number of stage carriages (Buses) on that basis rotationally. (21) Rule 118 of the said Rules, 1989, imposed limitation of time of plying of stage carriage as follows:- "118. Limitation of time of plying of stage Carriage.- In granting or renewing a permit, the Transport Authority concerned subject to the provisions of sub-section(3) of Section 80 of the Act mayattach a condition to the permit at any time during the validity ofthe permit that the Stage Carriage or Stage Carriages shall ply on aportion of the route for which the permit has been granted inaccordance with the timetable approved by the Transport Authorityand on the other portion only during such period as may be specifiedand according to such time-table as may be approved by theTransport Authority for such portion. Provided that the Transport Authority may also attach to the permit a condition that the time-table as originally approved may be subject it such amendments/changes as may seem to the TransportAuthority to be reasonable. Provided that the Transport Authority may also attach to the permit a condition that the time-table as originally approved may be subject it such amendments/changes as may seem to the TransportAuthority to be reasonable. In case of such amendment, if any, the interest of the State Transport Undertaking operating services on theroute or in the area should be given priority." (22) However, in accordance with the provisions of Rule 119 of the said Rules, 1989, in all cases of disputes in respect of the time table of stage carriage on a route or an area, the decision of the transport authority granting the permit or of the officer authorised under the said Rules, 1989, should be final. (23) Therefore, it is evident that the legislature laid down a legislative policy of taking control of plying of the transport vehicles including stage carriages(Buses) by introducing Chapter V in the said Act, 1988. Provisions of Clause (c) of sub section (1) of Section 70 and clauses (iii) and (iv) of sub-section (2) of Section 72 policy of issuing individual time table for a particular stage carriage (Bus) to ply the same at a particular time duly approved by the concerned Regional Transport Authority and his officers and exhibiting that time table on that stage carriage (Bus), at a specified stands and halts on the route or within the area. (24) With regard to the binding rule of conduct as legislative policy, the relevant portions of the decision of Harishan Kar Bagla Vs. State of M.P., reported in AIR 1954 SC 465 are quoted below:- 9. The next contention of Mr Umrigar that Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, amounts to delegation of legislative power outside the permissible limits is again without any merit. It was settled by the majority judgment in the Delhi Laws Act case that essential powers of legislature cannot be delegated. In other words, the legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct. In the present case the legislature has laid down such a principle and that principle is the maintenance or increase in supply of essential commodities and of securing equitable distribution and availability at fair prices. The principle is clear and offers sufficient guidance to the Central Government in exercising its powers under Section 3. Delegation of the kind mentioned in Section 3 was upheld before the Constitution in a number of decisions of their Lordships of the Privy Council, vide Russell v. Queen, Hodge v. Queen and Shannon v. Lower Mainland Dairy Products Board and since the coming into force of the Constitution delegation of this character has been upheld in a number of decisions of this Court on principles enunciated by the majority in the Delhi Laws Act case2. As already pointed out, the preamble and the body of the sections sufficiently formulate the legislative policy and the ambit and character of the Act is such that the details of that policy can only be worked out by delegating them to a subordinate authority within the framework of that policy. Mr Umrigar could not very seriously press the question of the invalidity of Section 3 of the Act and it is unnecessary therefore to consider this question in greater detail. (Emphasis supplied) (25) Rule 118 of the said rules, 1989, was framed for the purpose of supplementing the above provisions of the said Act, 1988. therefore, the Transport Authority and its duly authorised officer to resolve any dispute relating to time table for stage carriage on a route or area, overstepping the above legislative policy as laid down by the legislature. On the basis of the above observations, I have no hesitation to hold that the rotational time table as issued by the Secretary, Regional Transport Authority, Paschim Midnapore, under Memo No.1559/MV dated May 4, 2006 (Annexure P-2 at page 53 to the second writ application) was nonest in the eye of law. On the basis of the above observations, I have no hesitation to hold that the rotational time table as issued by the Secretary, Regional Transport Authority, Paschim Midnapore, under Memo No.1559/MV dated May 4, 2006 (Annexure P-2 at page 53 to the second writ application) was nonest in the eye of law. The direction of the Secretary, Regional Transport Authority, Paschim Midnapore, as contended in Memo No.2282/MV dated May 7, 2007(Annexure P08 at page 61 to the second writ application) was valid in the eye of law. (26) On the basis of the observations made hereinabove, there is no doubt that the rotational time tables dated March 25, 2005 issued by the Midnapore Zilla Bus Babsayi Samity (at pages 19,20,21) to the first writ application) can not be sustained in law. (27) Consequent upon the above discussions and observations the first writ application is allowed by quashing and setting aside the time tables dated march 25, 2005 issued by the Midnapore Zilla Bus Babsayi Samity(Annexure P-3 at pages 19, 20 and 21 to the above writ application) as also directing the Secretary, Regional Transport Authority, Paschim Midnapore, to issue individual time table to the petitioner of the above writ application forthwith. (28) In view of the discussion and observations made hereinabove the second writ application stands dismissed. (29) There will be no order as to costs. (30) Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.