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Karnataka High Court · body

2011 DIGILAW 688 (KAR)

Mohammed Abbas v. Government of Karnataka

2011-07-13

S.ABDUL NAZEER

body2011
Judgment :- 1. In all these cases, the petitioners have challenged the validity of the notification dated 23.3.2011 issued under Section 74(3)(a) of the Motor Vehicles Act, 1988 (‘Act’ for short) whereby the State Government has decided to increase the number of autorickshaw permits from 85,000 to 1,25,000 for the City of Bangalore. 2. The petitioners contend that large number of motor vehicles including buses, cars, two wheelers and autorickshaws are using the roads of the City of Bangalore. There is a constant increase in the number of vehicles everyday without improvement of the roads. It is further contended that the roads of Bangalore City are not wide enough to accommodate the ever-increasing motor vehicles. Many of the existing roads are undergoing changes on account of metro railway work, under passes, grade separators, etc., resulting in further reduction of usable width of the roads causing blockade, deviation, traffic jams, etc. The time taken to cover between the two points has increased. There is difficulty in regulation and control of traffic and constant danger to the life of the road users. The petitioners being the autorickshaw drivers have to be on the roads from morning till night to earn their livelihood. They are exposed to danger of accidents and health hazards due to air and sound pollution. There is a great urgency to ease the traffic congestion and overcrowding of motor vehicles on the roads. It is further contended that providing mass public transport system such as metro rail would considerably reduce the pressure on the city roads. The Bangalore Metropolitan Transport Corporation has increased the number of buses in the city. The first respondent without appreciating the fact of overcrowding of the roads and the need for taking steps to reduce the motor vehicles in Bangalore city, has increased the autorickshaw permits from 85,000 to 1,25,000 by the impugned notification. Allowing of additional 40,000 autorickshaws will add to the already overcrowded city roads, air pollution, noise pollution and other traffic problems endangering safety of the petitioners and the general public. 3. The State Government has filed its objections contending that the area of Bangalore City Corporation has enlarged considerably, Bangalore City Corporation is re-named as Bruhath Bengaluru Mahanagara Palike (‘BBMP’ for short) after merging six City Municipal Councils, one Town Municipal Council and one hundred and ten villages with the BBMP. 3. The State Government has filed its objections contending that the area of Bangalore City Corporation has enlarged considerably, Bangalore City Corporation is re-named as Bruhath Bengaluru Mahanagara Palike (‘BBMP’ for short) after merging six City Municipal Councils, one Town Municipal Council and one hundred and ten villages with the BBMP. The geographical area of the BBMP has increased from 350 sq. kms to 650 sq.kms. The density of population has also increased. As per the latest census conducted by the BBMP, the present population of the BBMP area is about one crore. The daily floating population is more than 10 lakhs. Therefore, there is necessity to increase the number of autorickshaws to cater to the needs of travelling public in the BBMP area. In view of the formation of new extensions/areas and also coming up of new industries and commercial establishments, it is necessary to provide cheaper transport facilities to the general public. Yeshwanthapura, Cantonment, Bayyappanahalli, K.R.Puram, Yelahanka, Kengeri and Whitefield railway stations have been developed requiring more transportation facilities to general public to reach the railway stations. The KSRTC/BMTC have opened satellite bus stations at Bayyapanahalli, Kengeri, Shanthinagara, Mysore Road and Yeshwanthapura. In order to reach these bus stations, people from the middle class and lower income groups are mainly depending on the autorickshaws for their movement from bus stations. In the year 2008-2009, the BBMP has constructed sixteen under passes and surface passes for free flow of traffic. Another four under passes are under construction at different places. The BBMP has also proposed to construct elevator corridors and grade separators in different parts of the City. In view of I.T/B.T. parks, the movement of people from business class has also increased resulting in additional requirement of autorickshaws. The increased permits will be issued only to the autorickshaws with four stroke engine, digital fare meter and LPG kit, where are free from noise and air pollution. The Government is contemplating to eliminate two stroke autorickshaws in a phased manner. The Bangalore Metro Rail will start operation shortly and there is need to increase the autorickshaws in order to provide feeder service to the metro railway stations. Though the BMTC has increased the number of buses, those buses do not carry the passengers’ up-to their last destination. The Government is contemplating to eliminate two stroke autorickshaws in a phased manner. The Bangalore Metro Rail will start operation shortly and there is need to increase the autorickshaws in order to provide feeder service to the metro railway stations. Though the BMTC has increased the number of buses, those buses do not carry the passengers’ up-to their last destination. It is further contended that the authorities under the Act have been receiving large number of complaints from the general public stating that the autorickshaw drivers are refusing to come to the passenger’s destination, demanding excess fare and tampering the fare meters. Such complaints can be reduced to a greater extent by increasing the autorickshaws and by creating healthy competition among the autorickshaw owners. The private financiers are also exploiting the owners of the autorickshaws by charging higher rate of interest on the loan availed by them. Hence, there is necessity to increase the autorickshaws for the City of Bangalore. 4. Respondent Nos.2 to 4 have filed applications seeking vacation of the interim order. In the applications, they have contended that if the ceiling is removed and more permits are made available, it will put an end to the illegal methods of getting autorickshaws permits prevalent in the field. It is further contended that petitioners cannot maintain these writ petitions as they are not aggrieved by issuance of the impugned notification. The 4th respondent has been filing representations requesting the State Government to increase the autorickshaw permits with a view to erase the stigma attached to the autorickshaw drivers such as demanding excess fare, tampering of fare meters, misbehaving with the travelling public, etc. During the interaction of autorickshaw drivers, it was realized that several factors such as plying autorickshaws without a permit or a licence, exorbitant interest paid to private financiers to own an autorickshaw with permit, plying of autorickshaws during odd hours by persons having other avocations, etc., is responsible for their misery. Increase of autorickshaws will put an end to the unhealthy practice adopted by the drivers. 5. Learned Counsel for the petitioners contend that the notification issued by the first respondent is contrary to sub-section (3)(a) of Section 74 of the Act. Increase of autorickshaws will put an end to the unhealthy practice adopted by the drivers. 5. Learned Counsel for the petitioners contend that the notification issued by the first respondent is contrary to sub-section (3)(a) of Section 74 of the Act. It is argued that the State Government is authorized to issue the notification if so directed by the Central Government limiting the number of contract carriages generally or of any specified type as may be fixed and specified in the notification before operating on city routes in towns with a population of not less than five lakhs. Before issuance of the notification, the State Government has taken into consideration the number of vehicles, road conditions and other relevant factors. The impugned notification does not indicate the consideration of the said mandatory requirements. The State Government had already issued a notification increasing the number of autorickshaws from 80,000 to 85,000 in the year 2010 and even before the utilization of the increased 5000 permits, the Government has increased the quota in 1,25,000. The condition of the road has not been examined. Many of the city roads were laid long back. They are not wide enough to cater to the present day need. They are congested due to the increase in the number of all types of vehicles resulting in frequent traffic jams, blockade, air and noise pollution endangering safety of public life. There is no consideration of other relevant factors such as introduction of city buses by the BMTC and the effect of proposed metro and the difficulties faced by the public due to metro work. The effect of the order increasing the number of autorickshaws has far reaching effect. It would affect the petitioners as also the residents of Bangalore their right to life free from danger of air and sound pollution. 6. On the other hand, learned Advocate General appearing for the official respondents has sought to justify the impugned notification. He submits that the Central Government has issued a notification dated 12.9.2010 under Section 74(3)(a) of the Act directing the State Government to limit the contract carriage permits in various cities/towns of different States. In so far as the State of Karnataka is concerned, the notification is applicable to city of Bangalore and certain other cities. He submits that the Central Government has issued a notification dated 12.9.2010 under Section 74(3)(a) of the Act directing the State Government to limit the contract carriage permits in various cities/towns of different States. In so far as the State of Karnataka is concerned, the notification is applicable to city of Bangalore and certain other cities. The Transport Commissioner, Bangalore, has sent the recommendation dated 2.12.2010 for increasing the grant of permits for autorickshaws in the city of Bangalore assigning cogent reasons. This was followed by yet another communication dated 17.3.2011 wherein he has again recommended for increase of the number of autorickshaw permits for Bangalore City. Taking note of the said recommendations, the Government has issued the impugned notification. It is submitted that the geographical area of the City of Bangalore has increased from 350 sq. kms to 650 sq.kms after merging six City Municipal Councils, one Town Municipal Council and one hundred and ten villages. The density of population has also been increased. As per the new census, the Bangalore Mahanagara Plaike’s population comes to one crore apart from daily floating population of about 10 lakhs. In view of the formation of new extensions/areas and also coming up of new industries and commercial establishments, there is a need to provide economical and cheaper transport facilities to the general public. In order to reach the bus stations, the people from the middle class and lower income groups are mainly depending on the autorickshaws for their movement. The BBMP has constructed under passes and surface passes in number of extensions/areas for free flow of traffic and has widened the roads. The BBMP has proposed to construct elevator corridor and grade separators at different places of city of Bangalore. On account of the construction of fly-overs and widened roads and in view of I.T/B.T parks, the movement of business class people has increased resulting in additional requirement of autorickshaws. The Government also intends to control air pollution/noise pollution. The increased autorickshaw permits will be issued to autorickshaws with four stroke engine, digital fare meter and LPG kit, which are free from noise and air pollution. The Government is contemplating to eliminate two stroke autorickshaws in a phased manner. The Bangalore Metro Rail will start its operation shortly and there is need to increase the autorickshaws in order to provide feeder service to the metro railway stations. The Government is contemplating to eliminate two stroke autorickshaws in a phased manner. The Bangalore Metro Rail will start its operation shortly and there is need to increase the autorickshaws in order to provide feeder service to the metro railway stations. Though the BMTC has increased the number of buses, those buses do not carry the passengers’ up-to their last destination. Therefore, there is necessity to increase the quota of autorickshaws. He prays for dismissal of the writ petitions. 7. Learned Counsel appearing for the private respondents contend that the petitioners are not the aggrieved persons so as to challenge the impugned notification. It is further contended that if the ceiling is removed or if more permits are made available, it will put an end to illegal methods prevailing in the market in getting autorickshaw permits. Such liberalized policy in increasing the autorickshaw permits will put an end to black marketing prevalent in the field. The State Government after considering the number of vehicles, road conditions and the other relevant matters has issued the impugned notification for increasing the autorickshaw permits, which does not call for interference. 8. I have carefully considered the arguments of the learned Counsel for the parties made at the Bar and perused the materials placed on record. 9. Before considering the contentions of the learned Counsel for the parties, the objection raised by the private respondents relating to maintainability of the writ petitions on the ground that the petitioners are not the aggrieved persons needs to be considered. One of the meanings assigned to the expression ‘aggrieved person’ in P. Ramanatha Aiyer’s Law Lexicon is a ‘person who has suffered a legal grievance – a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him of something or wrongfully affected his title to something.’ In other words, ‘aggrieved person’ means ‘a person who has got a legal grievance i.e., a person is wrongfully deprived of anything to which he is legally entitled and not merely a person who has suffered some sort of disappointment’. In BAR COUNCIL OF MAHARASHTRA VS. M.V.DABHOLKAR – AIR 1975 SC 2092 , a Constitution Bench of the Apex Court has considered the meaning of the ‘aggrieved person’, which is as under: “The meaning of the words “a person aggrieved” may vary according to the context of the statute. In BAR COUNCIL OF MAHARASHTRA VS. M.V.DABHOLKAR – AIR 1975 SC 2092 , a Constitution Bench of the Apex Court has considered the meaning of the ‘aggrieved person’, which is as under: “The meaning of the words “a person aggrieved” may vary according to the context of the statute. One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one “a person aggrieved”. Again a person is aggrieved if a legal burden is imposed on him. The meaning of the words “a person aggrieved” is sometimes given a restricted meaning in certain statutes, which provide remedies for the protection of private legal rights. The restricted meaning requires denial or deprivation of legal rights. A more liberal approach is required in the back ground of statues which do not deal with property rights but deal with professional conduct or morality.” In The Hanuman Transport Co. (P) Ltd. & Others Vs. The Karnataka State Transport Appellate Tribunal & Others in W.P. Nos.1765-1768/1990 disposed of on 30.3.1990, this Court was considering the maintainability of the revision petitions filed by the existing operators challenging the grant of permit in favour of a private operator. It has been held that the grant of permit in favour of the 3rd respondent therein affects the future working on a route. Such an order would have repercussion on the working of the existing operators and therefore, it cannot be stated that the petitioners therein are not the aggrieved persons or have no locus standi. In Sadashiva Reddy Vs. Lala Sheriff – ILR 1999 Kar 666, a Division Bench of this Court was considering a similar matter after coming into force of the Motor Vehicles Act, 1988. It was held as under: “a reading of Section 90 of the Act of 1988 makes it clear that any order of the Regional Transport Authority or the State Transport Authority, whether it be grant of a permit or assignment of timings, can be called in question by an aggrieved operator and the order can be demonstrated to be either illegal or improper. It follows that a rival operator on making allegations which prima facie demonstrates a grievance which calls for examination, is entitled to have his revision examined on merits in accordance with law and he cannot be thrown out at the threshold on the ground that he has no grievance. When once the Tribunal exercises the power to examine the order impugned, it is needless to state that it has to examine the order as to whether it is improper or illegal and has to decide the matter on merits. In the circumstances, the order of the learned Single Judge, rejecting the writ petitions cannot be sustained.” 10. In the present case, the petitioners are either owners or drivers or owner-cum-drivers of the autorickshaws. One of the writ petitions is filed by the Autorickshaw Drivers Welfare Society. Their contention is that if the impugned notification is implemented, the authorities will issue additional 40,000 autorickshaw permits, which will over crowd the roads of Bangalore City. It will also increase air pollution and noise pollution and other traffic problem endangering their safety. If more number of autorickshaws are allowed, it will effect their livelihood. If the petitioners are aggrieved by the grant of an individual permit, they can challenge the same before the Karnataka State Transport Appellate Tribunal. They cannot challenge the notification issued under Section 74(3)(a) of the Act by the State Government before the Tribunal. In my view, the petitioners are entitled to challenge the impugned notification as they come within the definition of ‘aggrieved persons.’ 11. Before proceeding further, it is relevant to note the reasons for enacting the Motor Vehicles Act, 1988. From the objects and reasons of the Act, it is clear that Act was brought into force with a view to liberalise the grant of permits. Section 80(2) of the Act states that the Regional Transport Authority shall not ordinarily refuse to grant permits of any kind made at any time under the Act. Section 80 read with other provisions of the Act make it clear that it was brought about for liberalization of private sector operations in the road transport filed. While considering the validity of the Act, the Apex Court in Mithilesh Garg and Others Vs. Union of India and Others – (1992) 1 SCC 168 has held as under: “More operators mean healthy competition and efficient transport system. While considering the validity of the Act, the Apex Court in Mithilesh Garg and Others Vs. Union of India and Others – (1992) 1 SCC 168 has held as under: “More operators mean healthy competition and efficient transport system. Overcrowded buses, passengers standing in the aisle, persons clinging to the bus doors and even sitting on the rooftop are some of the common sights in this country. More often one finds a bus, which has noisy engine, old upholstery, uncomfortable seats and continuous emission of black smoke from the exhaust pipe. It is, therefore, necessary that there should be plenty of operators on every route to provide ample choice to the commuter public to board the vehicle of their choice and patronize the operator who is providing the best service. Even otherwise the liberal police is likely to help in the elimination of corruption and favouritism in the process of granting permits. Restricted licensing under the old Act led to the concentration of business in the hands of few persons thereby giving rise to a kind of monopoly, adversely affecting the public interest. The apprehensions of the petitioners, that too many operators on a route are likely to affect adversely the interest of weaker section of the professions, is without any basis. The transport business is bound to be ironed out ultimately by the rationale of demand and supply. Cost of a vehicle being as it is the business requires huge investment. The intending operators are likely to be conscious of the economics underlying he profession. Only such number of vehicles would finally remain in operation on a particular route as are economically viable. In any case the transport system in a State is meant for the benefit and convenience of the public. The policy to grant permits liberally under the Act is directed towards the said goal. Only such number of vehicles would finally remain in operation on a particular route as are economically viable. In any case the transport system in a State is meant for the benefit and convenience of the public. The policy to grant permits liberally under the Act is directed towards the said goal. The petitioners who are already in the business want to keep the fresh entrants out of it and as such eliminate the healthy competition which is necessary to bring efficiency in the trade.” A contention was raised before the Apex Court that the condition of roads, social status of the applicants, possibility of small operators being eliminated by big operators, condition of hilly routes, fuel availability and pollution control are some of the important factors which the Regional Transport Authority is bound to take into consideration while taking a decision on an application for grant of permit. The said contention has been answered as under: “These are the matters which are supposed to be within the comprehension of the transport authorities. The legislative policy under the Act cannot be challenged on these grounds. It is not disputed that the Regional Transport Authority has the power under the Act to refuse an application for grant of permit by giving reasons. It is for the authority to take into consideration all the relevant factors at the time of quasi judicial consideration of the applications for grant of permits. The statutory authorities under the Act are bound to keep a watch on the erroneous and illegal exercise of power in granting permits under the liberalized policy.” 12. However, Section 74(3)(a) of the Act is a provision under which a limit can be fixed for the grant of permits in respect of the routes which are within a town of having population of more than five lakhs. The said provision reads as under: “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 carriages 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.” 13. The above provision lays down the factors to be considered before fixing the limit for the grant of permits. They are the number of vehicles, road condition and other relevant conditions. Learned HCGP has produced the original records containing the recommendations of the Transport Commissioner dated 2.12.2010, 17.3.2011 and 23.3.2011. In the recommendations the Transport Commissioner has assigned cogent reasons for increasing the autorickshaw permits from 85,000 to 1,25,000. In his recommendations, the Transport Commissioner has stated that after merging six City Municipal Councils, one Town Municipal Council and one hundred and ten villages, the geographical area of the BBMP has increased from 350sq.kms to 650 sq.kms. Due to increase in the geographical areas, the density of population has also increased. As per the new census, the Bangalore Mahanagara Palike’s population is one crore apart from floating daily population of about 10 lakhs. In view of the formation of new extensions/areas and also coming up of new industries and commercial establishments, there is need to provide economical and cheaper transport facilities to general public. Many railway stations have been developed requiring more transportation facilities to general public to reach the bus stations and railway stations. The KSRTC/BMTC have opened satellite bus stations at different places. The autorickshaws are the feeder services to the bus stations/metro stations/railway stations. The Government has also taken into account the construction of underpasses and surface passes in number of extension/areas for free flow of traffic. The BBMP has widened several roads in the city of Bangalore. It has proposed to construct elevator corridor at different places. It has constructed several fly overs. Several IT and BT parks have been established resulting in movement of people from various parts of the country. It has also considered the control of air pollution and noise pollution. Therefore, the autorickshaw permits are restricted to four stroke engine with digital fare meter and LPG kit which are free from noise and air pollution. The Government is also contemplating elimination of two stroke autorickshaws in a phased manner. It is also necessary to provide feeder services to the metro railway stations. The records produced by the learned HCGP would disclose that all these aspects have been considered by the State Government while issuing the impugned notification, which is as under: OTHER LANGUAGE 14. The Government is also contemplating elimination of two stroke autorickshaws in a phased manner. It is also necessary to provide feeder services to the metro railway stations. The records produced by the learned HCGP would disclose that all these aspects have been considered by the State Government while issuing the impugned notification, which is as under: OTHER LANGUAGE 14. It is well established that while exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advice the executive in matter of policy or to sermonize any matter which are under Constitution lies within the sphere of the legislature or the executive provided these authorities do not transgress their constitutional limits or statutory limits or statutory power. The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or opposed to the provisions of the Constitution. In Ekta Shakti Foundation vs. Govt. of NCT of Delhi – AIR 2006 SC 2609 , the Apex Court has held as under; “The correctness of the reasons which prompted the Government in decision making, taking one course of action instead of another is not a matter of concern in judicial review and the court is not the appropriate forum for such investigation. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown, Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government, the Court cannot interfere even if a second view is possible from that of the Government.” 15. It is clear from the records produced by the learned HCGP that, while issuing the impugned notification, the State Government has taken note of the number of vehicles plying on the roads of Bangalore City and also the condition of the roads. It is clear from the records produced by the learned HCGP that, while issuing the impugned notification, the State Government has taken note of the number of vehicles plying on the roads of Bangalore City and also the condition of the roads. It has also taken note of other relevant factors such as the increase of geographical area of BBMP and the total population including the daily floating population and the necessity to increase the autorickshaws to cater to the needs of travelling public. One of the consideration for increasing the autorickshaw permits is to control air and noise pollution by giving the permits to the autorickshaws with four stroke engine, digital fare meter and LPG kit. The State Government has also kept in mind the exploitation of owner/drivers of autorickshaws by the financiers and also the complaints by the general public against the autorickshaw drivers demanding excess fare, tampering of fare meters, etc. Apart from the above, we should not lose sight of the liberalization of private sector operations in the field of transport brought about by the Motor Vehicles Act, 1988. The impugned notification has not been issued in violation of any provisions of the Act or the Rules made thereunder. This Court cannot interfere with the policy decision taken by the State Government, which is in the interest of public at large. I do not find any merit in these writ petitions. They are accordingly dismissed. 16. Since the writ petitions are dismissed as above, Misc.W.Nos.5200/2011, 4352/2011, 5303/2011, 5620/2011, 4353/2011, 5202/2011, 5871/2011 and 5870/2011 do not survive for consideration. They are accordingly disposed of. No costs.