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2014 DIGILAW 526 (CAL)

Ajit Kumar Khan v. State of West Bengal

2014-06-18

BISWANATH SOMADDER

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JUDGMENT : Biswanath Somadder, J. 1. Let the affidavit filed on behalf of the Transport Department, Government of West Bengal, in response to the statements contained in the report in the form of an affidavit filed earlier on behalf of the Panchayats and Rural Development Department, Government of West Bengal, be kept on record. 2. The petitioners have stated to be stage carriage operators who render service to commuters by plying their vehicles on various routes in the district of Hooghly for which permits have been issued to them under the Motor Vehicles Act by the appropriate authority. They have approached this Court being 2 aggrieved by the decision taken by the State Government, as communicated to the District Magistrate, Hooghly, by a memo dated 28th November, 2013, issued by the Special Secretary to the Government of West Bengal, Department of Panchayats and Rural Development. 3. The impugned memo dated 28th November, 2013, concerns issuance of licence to motorised rickshaw vans. The contents of the impugned memo dated 28th November, 2013, in its entirety, is reproduced herein-below: "I am directed to state that the matter of issuing of licenses to Motorised Rickshaw-Vans has been under active consideration of the State Government for quite some time. The Group of Ministers on Transport has recently recommended that the motorised rickshaw-vans running in the rural areas of West Bengal be brought under the regime of licenses for appropriate regulation in the interest of the passengers and members of public at large. Since the Hon'ble Chief Minister has approved the said recommendation of the Group of Ministers and Minister-in-Charge, Transport and Sports Department, Government of West Bengal has requested this Department to take necessary action in this respect, I am directed to convey the following direction of the State Government for granting license to the motorised rickshaw-vans plying within the Panchayat areas. 1. Licenses will be issued to all the motorised rickshaw vans operating in the rural areas. 2. An annual fee of Rs. 500/- (Rupees five hundred) only will be charged as license fee by the Panchayat bodies of the appropriate level. 3. The motor vans which will run within the area of a Gram Panchayat will be licensed by that Gram Panchayat. 4. The motor vans which will run from one Gram Panchayat to another but within the jurisdiction of a Panchayat Samiti will be licensed by the Panchayat Samiti concerned. 3. The motor vans which will run within the area of a Gram Panchayat will be licensed by that Gram Panchayat. 4. The motor vans which will run from one Gram Panchayat to another but within the jurisdiction of a Panchayat Samiti will be licensed by the Panchayat Samiti concerned. 3 5. The motor vans which will run from one Panchayat Samiti to another will be licensed by the Zilla Parishad. 6. The Gram Panchayat, Panchayat Samiti and Zilla Parishad will incorporate the same in their Bye-laws." 4. According to the petitioners, the Panchayat bodies have no jurisdiction under the Panchayat Act or the Rules framed thereunder to make registration of any motor vehicle or vehicle, which is registrable under the Motor Vehicles Act, 1988. It is the specific contention of the learned advocate appearing on behalf of the petitioners that in terms of section 21(1)(d) of the West Bengal Panchayat Act, 1973, one of the regulatory duties of a Gram Panchayat is to make registration of a vehicle, but such vehicle has to be other than a vehicle which is required to be registered under the Motor Vehicle Act, 1988. He submits that the endeavour of the State Government to grant licence for motorised rickshaw vans by the local Panchayat bodies tantamounts to taking away the statutory power conferred exclusively upon the registering authority empowered to register motor vehicles under Chapter IV of the Motor Vehicles Act, 1988. He further submits that the motorised rickshaw vans, which are sought to be granted licence by the State Government from the local Panchayat bodies, all fall within the statutory definition of the expression "motor vehicle" or "vehicle" as defined under subsection (28) of section 2 of the Motor Vehicles Act, 1988 (as amended till date). It is his specific case that all motorised rickshaw vans are fitted with engine capacity of more than 35 cubic centimetres which immediately brings such class of vehicles within the purview of the statutory definition of "motor vehicle" or "vehicle" as provided under sub-section (28) of section 2 of the Motor Vehicles 4 Act, 1988 (as amended till date). In this context, he has relied on a fairly recent judgment of the Supreme Court rendered in the case of Chairman, Rajasthan State Road Transport Corporation & Ors. v. Santosh & Ors. In this context, he has relied on a fairly recent judgment of the Supreme Court rendered in the case of Chairman, Rajasthan State Road Transport Corporation & Ors. v. Santosh & Ors. reported in (2013) 7 SCC 94 , in order to elaborate on the definition, meaning and scope of the expression "motor vehicle" or "vehicle" as contained under sub-section (28) of section 2 of the Motor Vehicles Act, 1988 (as amended till date). 5. This Court had earlier sought for a report in the form of an affidavit from the Panchayats and Rural Development Department, Government of West Bengal. In its report, the said department has referred to the impugned memo dated 28th November, 2013, as also a communication under D.O. letter dated 10th October, 2013, from the Transport Department referring to a recommendation of the Group of Ministers on Transport to bring motorised rickshaw vans running in the rural areas of West Bengal under a licence regime. The Panchayats and Rural Development Department has also relied on section 47(1)(i) of the West Bengal Panchayat Act, 1973 and also Rule 58(3) of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 (as amended till date). The department in its report has also taken a point of locus standi and has submitted to the effect that the writ petition is not maintainable by the petitioners. 6. This Court had also directed the Department of Transport, Government of West Bengal, to give its response in the form of an affidavit to the report in the form of an affidavit filed by the Panchayats and Rural Development Department. 5 Such affidavit, which has been filed in Court today, reveals that the Hon'ble Minister-in-Charge of Transport Department wrote the D.O. letter dated 10th October, 2013 (which has already been referred to in Panchayat Department's report in the form of an affidavit), communicating the approval granted by the Hon'ble Chief Minister to the recommendation of the Group of Ministers with regard to issuance of licence of motorised rickshaw vans running in the rural areas of West Bengal. For convenience, the D.O. letter dated 10th October, 2013, in its entirety, is reproduced herein-below. "You are probably aware that the issue of Motorised Rickshaw-Vans has been under consideration of the Government of West Bengal for quite some time now. For convenience, the D.O. letter dated 10th October, 2013, in its entirety, is reproduced herein-below. "You are probably aware that the issue of Motorised Rickshaw-Vans has been under consideration of the Government of West Bengal for quite some time now. After some deliberations, the Group of Ministers on Transport has resolved in the following manner: "After careful consideration of all relevant factors, the Group of Ministers on Transport recommends that the motorised rickshaw-vans running in the rural areas of West Bengal be brought under the regime of licences for appropriate regulation of the motorised rickshaw-vans in the interest of the passengers and members of public at large. The licences may be issued by the Panchayat bodies of appropriate level. Transport Department may issue suitable advice to the Panchayat Department in this regard. Annual fees of Rs. 500/- may be charged as license fee. The said motor vans may be allowed on rural roads." Hon'ble Chief Minister has approved of this recommendation of the Group of Ministers. I now request you to take necessary action in terms of the aforesaid recommendation." 7. Other than referring to the contents of the D.O. letter dated 10th October, 2013, of the Hon'ble Transport Minister recommending necessary action based on the resolution of the Group of Ministers on Transport, addressed to the 6 Hon'ble Minister-in-Charge, Public Health Engineering, Panchayats and Rural Development, Government of West Bengal as quoted above no statutory Act or Rule has been either referred to or relied upon by the Transport Department. 8. Two questions arise for consideration in the facts and circumstances of the instant case. The first question is whether the local Panchayat body has jurisdiction to make registration of any vehicle which is otherwise registrable under the Motor Vehicles Act, 1988. In order to find an answer to this question, one is required to embark on a plain reading of the relevant statutory provisions. Let us first consider section 21(1)(d) of the West Bengal Panchayat Act, 1973, which deals with regulatory duties of Gram Panchayat. Section 21(1)(d) reads as follows:- "21. Regulatory duties of Gram Panchayat - (1) Subject to such conditions as may be prescribed, a Gram Panchayat shall, within its jurisdiction:- (d) make registration of the vehicle other than the vehicle required to be registered under the Motor Vehicles Act, 1988 (59 of 1988)." 9. Section 21(1)(d) reads as follows:- "21. Regulatory duties of Gram Panchayat - (1) Subject to such conditions as may be prescribed, a Gram Panchayat shall, within its jurisdiction:- (d) make registration of the vehicle other than the vehicle required to be registered under the Motor Vehicles Act, 1988 (59 of 1988)." 9. Let us now take into consideration Rule 58(3) of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 (as amended till date), which reads as follows:- "58. Fees, rates, tolls etc. (3) A Gram Panchayat may issue registration certificate in Form 7 to the owner of a vehicle mechanically propelled or otherwise but not registered under the Motor Vehicles Act, 1988 (59 of 1988) or under any other authority, against collection of a registration fee and such 7 other fees, subject to the maximum rates as specified in Table-II and maintain record thereof in Form 8." 10. The provision of law which allows a Gram Panchayat to levy fees on the registration of vehicles is section 47(1)(i) of the West Bengal Panchayat Act, 1973, which reads as follows: "47. Levy of rates and fees. (1) Subject to such maximum rates as the State Government may prescribe, a Gram Panchayat may levy the following [fees, rates and tolls,] namely: (i) fees on the registration of vehicles." 11. The other provision of law that is required to be taken up for consideration is the statutory definition of the expression "motor vehicle" or "vehicle" as provided under sub-section (28) of section 2 of the Motor Vehicles Act, 1988 (as amended till date), which, in its entirety, is set out herein below:- "2. Definitions. In this Act, unless the context otherwise requires, (28) "motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of 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 [thirty-five cubic centimetres]." [Substituted as per section 2 sub-section (iv) of the Motor Vehicles (Amendment) Act, 1994]. 12. 12. The next provision of law that requires consideration is sub-section (37) of section 2 of the Motor Vehicles Act, 1988, which statutorily defines a registering authority. The said provision of law reads as follows: "2. Definitions. In this Act, unless the context otherwise requires:- (37) "registering authority" means an authority empowered to register motor vehicles under Chapter IV;" 13. Now that we have a fair idea of the relevant provisions of law that are required to be noticed in the facts of the instant case, it is required to be examined as to whether the D.O. letter 10th October, 2013, issued by the Hon'ble Minister-in-Charge, Department of Transport, Government of West Bengal, could have culminated in issuance of the impugned memo dated 28th November, 2013, by the Special Secretary to the Government of West Bengal, Department of Panchayats and Rural Development. 14. The answer lies in a careful study of the provisions of law as quoted above and its applicability in respect of the impugned memo dated 28th November, 2013. 15. Such study reveals that the impugned memo dated 28th November, 2013, empowers local Panchayat bodies in the district of Hooghly to issue licence for motorised rickshaw vans while failing to take into consideration the explicit mandatory requirement of registration of all such motorised rickshaw vans (admittedly having fitted with engine capacity of more than 35 cubic centimetres), 9 before the registering authority under the provisions of the Motor Vehicle Act, 1988 (as amended till date). The reason for such requirement is, all such motorised rickshaw vans squarely fall within the definition of "motor vehicle" or "vehicle" as provided under sub-section (28) of section 2 of the Motor Vehicles Act, 1988, since they are all mechanically propelled vehicle adapted for use upon roads having fitted with engine capacity of more than 35 cubic centimetres. In this context, one may take notice of the observations made by the Supreme Court while defining sub-section (28) of section 2 of the Motor Vehicles Act, 1988 in paragraph 22 of its judgment rendered in the case of Chairman, Rajasthan State Road Transport Corporation (supra):- "22. Section 2(28) of the Act defines "motor vehicle" as under: "2. In this context, one may take notice of the observations made by the Supreme Court while defining sub-section (28) of section 2 of the Motor Vehicles Act, 1988 in paragraph 22 of its judgment rendered in the case of Chairman, Rajasthan State Road Transport Corporation (supra):- "22. Section 2(28) of the Act defines "motor vehicle" as under: "2. (28) 'motor vehicle' or 'vehicle' means any mechanically propelled vehicle adapted for use upon roads whether the power of 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;" (emphasis added) Thus, any vehicle which is mechanically propelled and adapted for use upon roads and does not fall within the exceptions provided therein, is a motor vehicle within the meaning of Section 2(28) of the Act." 16. There cannot be any quarrel with the proposition that the local Gram Panchayat bodies are empowered to levy fees on the registration of vehicles in terms of section 47(1)(i) of the West Bengal Panchayat Act, 1973. A Gram Panchayat may also issue a registration certificate in terms of Rule 58(3) of the 10 West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 (as amended till date) to the owner of a vehicle mechanically propelled or otherwise. However, the provision for issuance of such registration certificate by a Gram Panchayat is squarely confined to a vehicle mechanically propelled or otherwise, which is not registrable under the Motor Vehicles Act, 1988 (as amended till date). In other words, if a mechanically propelled vehicle adapted for use upon roads is registrable under the provisions of the Motor Vehicles Act, 1988 (as amended till date), a Gram Panchayat would have no jurisdiction to issue a registration certificate to the owner of such a vehicle in terms of Rule 58(3) of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 (as amended till date). Without a proper and valid registration certificate issued by a registering authority under the provisions of the Motor Vehicles Act, 1988 (as amended till date), plying of such registrable mechanically propelled vehicle adapted for use upon roads by virtue of any licence granted by local Panchayat bodies is, therefore, patently illegal. 17. The next question that comes up for consideration is the question of locus standi as sought to be raised by the Panchayats and Rural Development Department. The fact that all the four petitioners are stage carriage operators and are plying their vehicles in their respective routes on the strength of permits issued by the transport authorities to render service to the commuters at large within the district of Hooghly is not disputed by the Panchayats and Rural Development Department of the State. Only a bald statement appears to have been made in the report in the form of an affidavit filed on behalf of the 11 Panchayats and Rural Development Department, Government of West Bengal, with regard to the petitioners not having locus standi to maintain the writ petition. The fact remains that by virtue of operation of the impugned memo dated 28th November, 2013, their business as bona fide public transport operators in the district of Hooghly is being squarely affected. 18. At this stage, it may be worthwhile to refer to three judgments which have been relied on by the learned advocate for the petitioners: (1) Sai Chalchitra v. Commissioner, Meerut Mandal & Ors., reported in (2005) 3 SCC 683 ; (2) Pancham Chand & Ors. v. State of Himachal Pradesh & Ors., reported in (2008) 7 SCC 117 ; (3) Rajasthan State Industrial Development and Investment Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur & Ors., reported in (2013) 5 SCC 427 . 19. Insofar as Sai Chalchitra (supra) case is concerned, the Supreme Court took into consideration the order of the learned Single Judge who had dismissed the writ petition of the appellant on the ground of locus standi. The learned Single Judge had observed that the appellant could not raise a grievance against his rival in trade. 19. Insofar as Sai Chalchitra (supra) case is concerned, the Supreme Court took into consideration the order of the learned Single Judge who had dismissed the writ petition of the appellant on the ground of locus standi. The learned Single Judge had observed that the appellant could not raise a grievance against his rival in trade. The Supreme Court, while negating the view of the learned Single Judge, was of the opinion that the High Court clearly erred in dismissing the writ petition filed by the appellant on the ground of locus standi since the appellant was in the same trade as respondent no.3 and had a right to seek cancellation of the licence granted to the said respondent no.3, which was in violation of the Act and the Rules. 20. The other judgment which has been relied on by the learned advocate for the petitioners is in the case of Pancham Chand (supra) wherein the Supreme Court came down heavily on the role of the Chief Minister of Himachal Pradesh in granting stage carriage permits for different routes contrary to the statutory provisions, as laid down under the Motor Vehicles Act, 1988. The observations made in paragraphs 18 and 19 are quoted herein-below: "18. The Act is a self-contained code. All the authorities mentioned therein are statutory authorities. They are bound by the provisions of the Act. They must act within the four corners thereof. The State, although, has a general control but such control must be exercised strictly in terms of Article 162 of the Constitution of India. Having regard to the nature and the manner of the control specified therein, it may lay down a policy. Statutory authorities are bound to act in terms thereof, but per se the same does not authorise any Minister including the Chief Minister to act in derogation of the statutory provisions. The Constitution of India does not envisage functioning of the Government through the Chief Minister alone. It speaks of a Council of Ministers. The duties or functions of the Council of Ministers are ordinarily governed by the provisions contained in the Rules of Business framed under Article 166 of the Constitution of India. All Governmental orders must comply with the requirements of a statute as also the constitutional provisions. Our Constitution envisages a rule of law and not rule of men. The duties or functions of the Council of Ministers are ordinarily governed by the provisions contained in the Rules of Business framed under Article 166 of the Constitution of India. All Governmental orders must comply with the requirements of a statute as also the constitutional provisions. Our Constitution envisages a rule of law and not rule of men. It recognises that, howsoever high one may be, he is under law and the Constitution. All the constitutional functionaries must, therefore, function within the constitutional limits. 19. Apart from the fact that nothing has been placed on record to show that the Chief Minister in his capacity even as a member of the Cabinet was authorised to deal with the matter of transport in his official capacity, he had even otherwise absolutely no business to interfere with the functioning of the Regional Transport Authority. The Regional Transport Authority being a statutory body is bound to act strictly in terms of the provisions thereof. It cannot act in derogation of the powers conferred upon it. While acting as a statutory authority it must act having regard to the procedures laid down in the Act. It cannot bypass or ignore the same." 21. Finally, in the case of Rajasthan State Industrial Development and Investment Corporation (supra), the Supreme Court has clearly held in paragraphs 26 and 27 as follows: "26. Thus, it is evident that a writ is not issued merely as is legal to do so. The court must exercise its discretion after examining pros and cons of the case. "27. Executive instructions which have no statutory force, cannot override the law. Therefore, any notice, circular, guidelines, etc. which run contrary to statutory laws cannot be enforced. [Vide B.N. Nagarajan v. State of Mysore ( AIR 1966 SC 1942 ), Sant Ram Sharma v. State of Rajasthan ( AIR 1967 SC 1910 ), State of Karnataka v. Umadevi (2006) 4 SCC 1 ) and Mahadeo Bhau Khilare (Mane) v. State of Maharashtra (2007) 5 SCC 524 .]" 22. The ratio of all the judgments relied on by the learned advocate for the petitioners is squarely applicable. Upon taking into consideration the facts and circumstances of the instant case, this Court also has no hesitation in holding that the petitioners do have locus standi to maintain the instant writ petition. The ratio of all the judgments relied on by the learned advocate for the petitioners is squarely applicable. Upon taking into consideration the facts and circumstances of the instant case, this Court also has no hesitation in holding that the petitioners do have locus standi to maintain the instant writ petition. The Panchayats and Rural Development Department of the State has simply taken resort to a hyper-technical plea only in order to thwart the bona fide approach of the petitioners to bring to the notice of this Court exercising its jurisdiction under Article 226 of the Constitution of India an action of the State which is blatantly and palpably contrary to the statutory laws as applicable. 23. For reasons stated above, the impugned memo dated 28th November, 2013, issued by the Special Secretary to the Government of West Bengal, 14 Department of Panchayats and Rural Development, addressed to the District Magistrate, Hooghly, with regard to grant of licence for motorised rickshaw vans by the local Panchayat bodies is liable to be set aside and is accordingly set aside. 24. Subject to the observations made hereinabove, this order shall not prevent the State Government to issue appropriate notification in accordance with law. 25. The writ petition stands disposed of accordingly. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties. Writ petition allowed.