Nagaon Jila Bus Paribahan Santha v. State of Assam
2018-09-27
ACHINTYA MALLA BUJOR BARUA
body2018
DigiLaw.ai
JUDGMENT : Achintya Malla Bujor Barua, J. Heard Mr. S Kataki, learned counsel for the petitioners. Also heard Mr. J Roy, learned counsel for the respondent, Assam State Transport Corporation (for short, ASTC) and Mr. Y Dolloi, learned Standing counsel for the Transport Department of the Government of Assam. 2. The petitioner, which is an association of different bus operators is aggrieved by the communication dated 20.11.2017 of the Secretary to the Government of Assam in the Transport Department addressed to the Managing Director of ASTC by which it was informed that the Government had agreed to the proposal for grant of Letter of Authority to the ASTC for a period of 5(five) years under Rule 63 of the Central Motor Vehicle Rules, 1989 for operating authorized testing stations for issuing certificate of fitness of transport vehicles under Section 56 of the Motor Vehicles Act of 1988. Subsequent to such communication, another Notification dated 11.01.2018 was issued under the signature of the Commissioner and Secretary to the Government of Assam in the Transport Department by which it was provided that the Governor of Assam is pleased to accord approval to the ASTC for opening of fitness test centers of commercial vehicle/any other vehicle under Rule 63 of the Central Motor Vehicle Rules, 1989 (for short, Rules of 1989) and Section 56 of the Motor Vehicle Act, 1988 (for short, the Act of 1988). By the said Notification, it was also provided that the ASTC will charge Rs. 300/- for light motor vehicles and Rs. 500 for heavy vehicles. 3. The communication of 20.11.2017 and the notification dated 11.01.2018 have been assailed in this writ petition on the ground that the same were issued in deviation of the prescribed procedure to be followed under Rule 63 of the Rules of 1989 and further that the communication and the notification were issued by an authority, who is not the prescribed authority under the said Rule. 4. Mr.
4. Mr. J Roy, learned counsel for the respondent, ASTC, takes a stand that the ASTC being a State Transport Corporation is governed by the provisions of the Road Transport Corporation Act of 1950 (for short, the Act of 1950), and, therefore, it being so, in order to venture into any other additional business, the ASTC is required to obtain approval of the appropriate authority in the State Government as required under Section 19 of the Act of 1950. According to Mr. Roy, the communication dated 20.11.2017 and the Notification dated 11.01.2018 are a culmination of a proceeding initiated in favour of the ASTC under Section 19 of the Act of 1950 and that the communication and the notification are not a result of a process under Rule 63 of the Rules of 1989. 5. In order to substantiate his assertion, Mr. Roy, learned counsel refers to the provisions of Section 19(2)(m) and 19(3)(i) of the Act of 1950 and contends that for conducting any activity, the ASTC is required to obtain the approval of the appropriate authority in the State Government. Accordingly the ASTC as required under Section 19 made an application before the authorities in the State Government in the Transport Department for grant of an approval under Section 19. 6. In order to arrive at a conclusion as to whether the communication of 20.11.2017 and the Notification of 11.01.2018 were the culmination of a process under Section 19 of the Act of 1950 or it was a culmination of a process of Rule 63 of the Rules of 1989, the records pertaining to the issue are verified. From the records, it is taken note that the Commissioner of Transport, Government of Assam had made a communication to the Commissioner and Secretary to the Government of Assam in the Transport Department dated 20.03.2017 in which, in the first three paragraphs it was stated that the ASTC desires to undertake the activity of issuing vehicle fitness certificate and for the purpose they are willing to do the work at a minimum of Rs. 300/- for the light motor vehicle and Rs. 500/- from the heavy vehicle. The Commissioner also states that under Rule 63 of the Rules of 1989, the applicant has to apply in Form 40 for grant of Letter of Authority to be issued in Form 39.
300/- for the light motor vehicle and Rs. 500/- from the heavy vehicle. The Commissioner also states that under Rule 63 of the Rules of 1989, the applicant has to apply in Form 40 for grant of Letter of Authority to be issued in Form 39. It further states that the process for issuing Letter of Authority in Form 39 under Rule 63 of the Rules of 1989 had not been implemented in any other State of India and that the matter was discussed in the meeting of the State Transport Authority. Finally the communication states that in view of what was stated therein, the Government was requested to take a decision on the matter and issue the necessary notification thereof. 7. Mr. Roy, learned counsel for the respondent ASTC by referring to the last paragraph of the communication dated 20.03.2017 urges that for all purposes the said communication is an initiation on behalf of the respondent ASTC for grant of approval under Section 19 of the Act of 1950. The said submission of Mr. Roy would otherwise have been acceptable, but for a subsequent communication dated 20.04.2017 of the Additional Secretary to the Government of Assam in the Transport Department by which the Managing Director of ASTC was asked to submit the proposal in the prescribed format enclosed in the letter of the Commissioner of Transport. On examination, it is taken note of that the prescribed format is in fact the Form 40 under the Rules of 1989. It is stated that as required the respondent ASTC had submitted its proposal under Form 40. In view of the above, what can be concluded is that the procedure that was followed in arriving at the communication dated 20.11.2017 and the notification dated 11.01.2018 is that the respondent ASTC had submitted its proposal under Form 40 under the Rules of 1989. It being so, the sustainability of the core contention of Mr. Roy that the said communication and the notification were a result of a process under Section 19 of the Act of 1950 requires an examination. 8. The provision of Section 19 of the Act of 1950 is as follows: "19.
It being so, the sustainability of the core contention of Mr. Roy that the said communication and the notification were a result of a process under Section 19 of the Act of 1950 requires an examination. 8. The provision of Section 19 of the Act of 1950 is as follows: "19. Powers of Corporation: (1) Subject to the provisions of this Act, a Corporation shall have power- (a) to operate road transport services in the State and in any extended area; (b) to provide for any ancillary service; (c) to provide for its employees suitable conditions of service including fair wages, establishment of provident fund, living accommodation, places for rest and recreation and other amenities; (d) to authorise the issue of passes to its employees and other persons either free of cost or at concessional rates and on such conditions as it may deem fit to impose; (e) to authorise the grant of refund in respect of unused tickets and concessional passes. (2) Subject to the provisions of this Act, the powers conferred by sub-section (1) shall include power- (a) to manufacture, purchase, maintain and repair rolling stock, vehicles, appliances, plant, equipment or any other thing required for the purpose of any of the activities of the Corporation referred to in sub-section (1).
(2) Subject to the provisions of this Act, the powers conferred by sub-section (1) shall include power- (a) to manufacture, purchase, maintain and repair rolling stock, vehicles, appliances, plant, equipment or any other thing required for the purpose of any of the activities of the Corporation referred to in sub-section (1). Explanation.-In this clause, the expression "manufacture" does not include the construction of the complete unit of a motor vehicle except for purposes of experiment or research; (b) to acquire and hold such property, both movable and immovable, as the Corporation may deem necessary for the purpose of any of the said activities, and to lease, sell or otherwise transfer any property held by it; (c) to prepare schemes for the acquisition of, and to acquire, either by agreement or compulsorily in accordance with the law of acquisition for the time being in force in the State concerned and with such procedure as may be prescribed, whether absolutely or for any period, the whole or any part of any undertaking of any other person to the extent to which the activities thereof consist of the operation of road transport services in that State or in any extended area; (d) to purchase by agreement or to take on lease or under any form of tenancy any land and to erect thereon such buildings as may be necessary for the purpose of carrying on its undertaking; (e) to authorise the disposal of scrap vehicles, old tyres, used oils,2[any other stores of scrap value, or such other stores as may be declared to be obsolete in the prescribed manner]; (f) to enter into and perform all such contracts as may be necessary for the performance of its duties and the exercise of its powers under the Act; (g) to purchase vehicles of such type as may be suitable for use in the road transport services operated by the corporation; (h) to purchase or otherwise secure by agreement vehicles, garages, sheds, office buildings, depots, land, workshops, equipment, tools, accessories to and spare parts for vehicles, or any other article owned or possessed by the owner of any other undertaking for use thereof by the Corporation for the purposes of its undertaking; (i) to do anything for the purpose of advancing the skill of persons employed by the Corporation or the efficiency of the equipment of the Corporation or of the manner in which that equipment is operated, including the provisions by the Corporation, and the assistance by the Corporation to others for the provision of facilities for training, education and research; (j) to enter into and carry out agreement with any person carrying on business as a carrier of passengers or goods providing for the carriage of passengers or goods on behalf of the Corporation by that other person at a thorough fare or freight; (k) to provide facilities for the consignment, storage and delivery of goods; (l) to enter into contracts for exhibition of posters and advertising boards on and in the vehicles and premises of the Corporation and also for advertisement on tickets and other forms issued by the Corporation to the public; (m) with the prior approval of the State Government to do all other things to facilitate the proper carrying on of the business of the Corporation.
(3) Nothing in this section shall be construed as authorising a Corporation except with the previous approval of the State Government- (i) to manufacture or maintain anything which is not required directly or indirectly for use for the purpose of the undertaking of the Corporation or to repair, store, or provide any service for, any vehicle which does not belong to the Corporation or is not used directly or indirectly for the purpose of its undertaking; (ii) to purchase any vehicle for the purpose of sale to another person; (iii) to sell or supply to any person lubricants, spare parts, or equipment for or accessories to, vehicles; (iv) to let vehicles on hire for the carriage of passengers or goods except as expressly provided by or under this Act. (4) Except as otherwise provided by this Act nothing in the foregoing provisions shall be construed as authorising the Corporation to disregard any law for the time being in force. (5) Where a Corporation acquires the whole or any part of an undertaking of any other person, the Corporation shall, in appointing its 3[officers and other employees], take into consideration the claims of employees employed in that undertaking. (6) The provisions of this section shall not be construed as limiting any power of a Corporation conferred by or under any subsequent provision of this Act." 9. On the other hand, Rule 63 of the Rule of 1989 is as follows: "63. Regulation and control of authorised testing stations. (1) No operator of an authorised testing station shall issue or renew a certificate of fitness to a transport vehicle under section 56 without a Letter of Authority in Form 39 granted by the registering authority. (2) An application for grant or renewal of a Letter of Authority under sub-rule (1) shall be made in Form 40 to the registering authority having jurisdiction in the area in which the service station or garage is situated and shall be accompanied by- (a) the appropriate fee as specified in rule 81; (b) a security deposit of [rupees one lakh] in such manner as may be specified by the State Government.
(3) A registering authority shall, when considering an application for the grant or renewal of a Letter of Authority, have regard to the following matters, namely:- (a) the applicant or at least one of the members of the staff employed by him for the inspection of transport vehicles for the purpose of issue or renewal of certificate of fitness possesses the following minimum qualifications:- (i) a [three years] diploma in automobile engineering or mechanical engineering or an equivalent qualification; (ii) experience of minimum service of five years in an automobile workshop undertaking repairs of heavy goods vehicles, heavy passenger motor vehicles, medium motor vehicles and light motor vehicles; (iii) a driving licence to drive motor cycle, heavy passenger motor vehicle and heavy goods vehicle with a minimum driving experience of not less than five years; (iv) thorough knowledge of the Act and the rules made thereunder, especially the Chapters relating to registration of motor vehicles and construction, equipment and maintenance of motor vehicles; (b) the premises where the authorised testing station is to be housed is either owned by the applicant or is taken on lease by him or is hired in his name and it has 2[minimum of one acre of land] for administrative section, reception room and sanitary block and space for erection of testing equipments and other apparatus; (c) inspection lanes are provided adjacent to the building in the same compound or at other places approved by the registering authority; (d) testing equipments and apparatus are installed in such manner that vehicles may pass through with ease and speed; (e) the applicant maintains in good condition, the equipment and apparatus for undertaking test pertaining to 4 [exhaust gas, engine tuning, engine analysis], smoke emission, brake system, headlights, wheel alignments, compressors, speedometers and other like components;] (f) the financial resources of the applicant are sufficient to provide for its continued maintenance; (g) the applicant maintains an up-to-date copy of the Act, these Rules and the concerned State Motor Vehicles Rules. (4) The registering authority shall also, when considering an application under this rule, take into consideration the fact that the setting up of the authorised testing station will improve the availability of testing facilities in the area both in relation to the number of vehicles and proximity to such facilities.
(4) The registering authority shall also, when considering an application under this rule, take into consideration the fact that the setting up of the authorised testing station will improve the availability of testing facilities in the area both in relation to the number of vehicles and proximity to such facilities. (5) The registering authority may, on receipt of an application under sub-rule (2) and after satisfying himself that the applicant has complied with the requirements of Sub Rules (3) and (4), grant or renew the Letter of Authority in Form 39: Provided that no application for a Letter of Authority shall be refused by the registering authority unless the applicant is given an opportunity of being heard and reasons for such refusal are given in writing by the registering authority." 10. On a reading of Section 19 of the Act of 1950, it is apparent that the same provides for the requirement and procedure to be followed for the State Transport Corporation to obtain the approval of the authorities in the State Government for venturing into any other activity which it had not undertaken in the meantime. On the other hand, Rule 63 of the Rules of 1989 provides for the issuance of the Letter of Authority for operating authorized testing centers and also the procedure to be followed for the purpose. 11. Section 19(i) of the Act of 1950 provides that the State Transport Corporation shall have the power to do all such activities enumerated therein, whereas, Section 19(2) provides that the power conferred under Sub-Section 1 shall also include the power as described in Sub-Section 2. Section 19(2)(m) provides for the power to do all things to facilitate the proper carrying of the business of the Corporation with prior approval of the State Government. Accordingly, the activity of operating the authorized fitness center can be construed to be an activity undertaken by the ASTC for proper carrying out of its business. 12. In other words, if the respondent ASTC desires to undertake the activity of operating an authorized testing centre, the same would require an approval of the State Government under Section 19 of the Act of 1950. From the said point of view, the respondent ASTC would definitely be entitled to make an application for grant of such approval. 13.
12. In other words, if the respondent ASTC desires to undertake the activity of operating an authorized testing centre, the same would require an approval of the State Government under Section 19 of the Act of 1950. From the said point of view, the respondent ASTC would definitely be entitled to make an application for grant of such approval. 13. On the other hand, Rule 63 of the Rules of 1989 provides that no operator of authorized testing station shall issue a certificate of fitness to a transport vehicle as required under Section 56 without a Letter of Authority in Form 39 to be granted by the registering authority. In other words, in order to operate an authorized testing station, there is a statutory requirement of a Letter of Authority being issued in Form 39 and the prescribed authority to issue such Letter of Authority is the registering authority. The explanation to Rule 63 provides the registering authority to be an officer not below the rank of the Regional Transport Officer of the Motor Vehicles Department established under Section 213 of the Act of 1988. Section 213 of the Act of 1988 provides that the State Govt. may for the purpose of giving effect to the provision of the Act establish a Motor Vehicles Department and appoint officers thereof such persons as it thinks fit. 14. On a question being put to the learned counsel appearing for the Transport Department of the Govt. of Assam as to whether the Transport Department of the Govt. of Assam and the Motor Vehicles Department of the Govt. of Assam is one and the same, the reply given is that the Motor Vehicles Department and the Transport Department of the Govt. of Assam are not one and the same, although the Motor Vehicles Department may be a part of the Transport Department. But for the purpose of implementing the requirements of the Act of 1988, the Motor Vehicles Department retains its own identity as required under the statute. The said aspect has its relevance inasmuch as, the communication of 20.11.2017 and the notification of 11.01.2018 had been issued respectively by the Secretary to the Govt. of Assam in the Transport Department and the Commissioner & Secretary to the Govt. of Assam in the Transport Department who apparently are not authorities in the Motor Vehicles Department.
The said aspect has its relevance inasmuch as, the communication of 20.11.2017 and the notification of 11.01.2018 had been issued respectively by the Secretary to the Govt. of Assam in the Transport Department and the Commissioner & Secretary to the Govt. of Assam in the Transport Department who apparently are not authorities in the Motor Vehicles Department. Further the registering authority has been defined under Rule 2 (m) of the Assam Motor Vehicle Rules, 2003 (for short, Rules of 2003) which defines it to mean the District Transport Officer of the district or the Deputy Commissioner of the District where there is no such District Transport Officer or such other authority as may be specifically empowered in this behalf by the State Government by notification to be published to be in the official gazette. 15. Going by the definition and concept of registering authority as indicated above, this Court is of the view that neither the Secretary to the Govt. of Assam in the Transport Department nor the Commissioner & Secretary to the Govt. of Assam in the Transport Department are the Registering Authority as contemplated under Rule 63 of the Rules of 1989. 16. From such point of view, if the communication dated 20.11.2017 and the notification of 11.01.2018 are construed to be a Letter of Authority issued in favour of the respondent ASTC under Rule 63 of the Rule of 1989, then the Letter of Authority had been issued by an authority, who is not competent under Rule 63. Accordingly, if the communication and the notification are construed to be a Letter of Authority under Rule 63 of the Rules of 1989, the same are not sustainable in law. On the other hand, if the communication of 20.11.2017 and the notification of 11.01.2018 are construed to be an order of approval under Section 19 of the Act of 1950 in favour of ASTC for venturing into the activity of operating an authorized testing centre, then it cannot on its own be construed to be a Letter of Authority under Rule 63 of the Rule of 1989. But again whether on facts, the said communication/notification is an approval under Section 19, the procedure adopted in arriving at it would also be relevant. 17.
But again whether on facts, the said communication/notification is an approval under Section 19, the procedure adopted in arriving at it would also be relevant. 17. As indicated above, even if the communication dated 20.03.2017 of the Commissioner of Transport is construed to be an application under Section 19 for grant of approval, but the process that was adopted, contained a requirement by the respondent ASTC to submit their proposal in Form 40 as apparent from the communication dated 20.04.2017 of the Additional Secretary to the Govt. of Assam, Transport Department. Form 40 being a requirement under the Rules of 1989 and the respondent ASTC having followed/required to follow a procedure which is a requirement of Rule 63, it cannot be said, per se, that the communication of 20.11.2017 and the notification of 11.01.2018 were a culmination of a process undertaken under Section 19 of the Act of 1950. 18. From a perusal of record, what appears is that in arriving at the communication of 20.11.2017 and the notification of 11.01.2018, there was an intermingling of the procedure required to be followed under Section 19 of the Act of 1950 and that of the Rule 63 of the Rules of 1989 and, therefore, the procedure adopted in arriving at the said communication/notification can neither be called to be a process undertaken under Section 19 nor it can be called to be a process undertaken under Rule 63 of the Rules of 1989. 19. Further it is also taken note that the notification of 11.01.2018 also prescribes the fees to be charged by the respondents ASTC for issuing the fitness clearance certificates. Prescription of fess would definitely be a matter within the purview of Rule 63 of the Rule of 1989 and it cannot be a matter within the purview of Section 19 of the Act of 1950 20. In view of the aforesaid conclusion, the communication dated 20.11.2017 and the notification dated 11.01.2018 are set aside.
Prescription of fess would definitely be a matter within the purview of Rule 63 of the Rule of 1989 and it cannot be a matter within the purview of Section 19 of the Act of 1950 20. In view of the aforesaid conclusion, the communication dated 20.11.2017 and the notification dated 11.01.2018 are set aside. However, as a conclusion had already been arrived that there is an entitlement of the respondent ASTC to venture into any activity including the activity of operating an authorized testing station, although there is a statutory requirement under Section 19 of the Act of 1950 to obtain an approval for the same, setting aside of the aforesaid communication and the notification shall not be a bar on the part of the respondent ASTC to make an appropriate application under Section 19 of the Act of 1950. In the event, any such application is made, the State respondent authorities shall strictly follow the procedure required under Section 19 and arrive at its conclusion as to whether to grant or not grant such approval. Only upon such approval being granted under Section 19, the ASTC shall be eligible to make further application under Form 40 of the Rules of 1989 for grant of Letter of Authority in Form 39, if they are otherwise, found fit but strictly by following the procedure under Rule 63 of the Rule of 1989. 21. This writ petition is allowed to the extent indicated above. It is provided that as to what fees are to be charged by the respondent ASTC, in the event, they are ultimately issued a Letter of Authority, the same also shall be determined strictly in terms of Rule 81 of the Rules of 1989, as amended.