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2019 DIGILAW 1228 (GAU)

Pulen Dey v. State of Assam

2019-11-15

SANJAY KUMAR MEDHI

body2019
JUDGMENT : Sanjay Kumar Medhi, J. Considering the subject matter of dispute and as agreed to by the parties, this writ petition was taken up for final hearing at the Admission stage. Before going to the controversy raised, it would be beneficial to narrate the brief facts of the case. 2. 2 (two) petitioners have joined together in this writ petition to challenge a notification dated 17.12.2018, issued by the Secretary to the Government of Assam, Transport Department, by which, approval was accorded to the Assam State Transport Corporation (ASTC) to operate Authorized Testing Stations in each District of the State of Assam by realizing service charges from the vehicles as per Rules mentioned in the said notification. According to the petitioners, the impugned action is not only violative of the statute holding the field but is also absolutely unreasonable and arbitrary inasmuch as ASTC, whose primary activity is of running of transport and stands as a competitor to the petitioners and other transport owners, cannot be given such powers. 3. I have heard Shri P. K. Goswami, learned Senior Counsel assisted by Shri B. P. Borah, learned counsel for the petitioners. I have also heard Shri Y. Doley, learned Standing Counsel for the Transport Department. The ASTC is represented by Shri N. Dutta, learned Senior Counsel assisted by Shri J. Roy, learned counsel. 4. Shri Goswami, learned Senior Counsel, while unfolding his submissions has referred to the relevant provisions of the statutes holding the field. He has referred to Section 56 of the Motor Vehicles Act, 1988 (hereinafter the Act of 1988) which pertains to Certificate of Fitness of transport vehicles; Section 213 pertaining to appointment of Motor Vehicles Officers. Reference has also been made to the Central Motor Vehicles Rules, 1989 (hereinafter the Central Rules of 1989), more particularly, Rule 62 pertaining to validity of Certificate of Fitness, Rule 63 relating to regulation and control of Authorized Testing Station. Reference has also made to Forms 38 in connection with Rule 62 (1), Form 39 in connection with Rules 63 (1) and 63 (5), Form 40 in connection with Rule 63 (2). While referring the Form 40, notice of this Court has been drawn to the requirements of Clause 6 which is as follows:- "whether involved/connected directly or indirectly in transport business". While referring the Form 40, notice of this Court has been drawn to the requirements of Clause 6 which is as follows:- "whether involved/connected directly or indirectly in transport business". Criticizing the said decision, the learned Senior Counsel has submitted that Road Transport Corporations are creatures of the Road Transport Corporations Act, 1950 (hereinafter the Act of 1950) existing in each of the States of the Country and so far as the State of Assam is concerned, the ASTC was incorporated. A reading of the Act of 1950 would show that no such activity of running a Testing Station is contemplated for such corporation and therefore, the impugned decision would be wholly without jurisdiction. It is also submitted that the conditions precedent laid down in the Act are absolutely unfulfilled rendering the impugned decision void ab initio. 5. Referring to the objects and reasons of the Act of 1950, Shri Goswami, learned Senior Counsel, has submitted that the primary object of such Corporation is to provide efficient, adequate, economical and properly coordinated system of road transport services. Reference has been made to the definition of "Ancillary Service" under Section 2 (a) and "Road Transport Service" under Section 2 (e). By referring to Section 19 of the Act of 1950 which lays down the powers of the Corporation, the learned Senior Counsel for the petitioners has submitted that under Section 19 (1) (b) powers to provide for Ancillary Service was vested upon the Corporations. Under Section 19 (2) (m), the Corporations were empowered to do all other things to facilitate the proper carrying on of the business of the Corporation. 6. The learned Senior Counsel for the petitioners has also referred to the State Rules, namely, the Assam Motor Vehicle Rules, 2003. Under Rule 2 (m) of the State Rules, Registering Authority has been defined which means the District Transport Officer of the District or the Deputy Commissioner of the District where there is no such District Transport Officer. Rule 26 is in connection with Certificate of Fitness which involves the Inspector of Motor Vehicle and the Registering Authority. Further reference is made to Rule 79 pertaining to preparation of schemes and Rule 87 pertaining to periodical testing and inspection of vehicles. 7. Rule 26 is in connection with Certificate of Fitness which involves the Inspector of Motor Vehicle and the Registering Authority. Further reference is made to Rule 79 pertaining to preparation of schemes and Rule 87 pertaining to periodical testing and inspection of vehicles. 7. Reference has been made to the letter dated 20.11.2017 by the Government of Assam, Transport Department to the Managing Director, ASTC, whereby, the Government has approved the proposal for grant of letter of authority for a period of 5 (five) years under Rule 63 of the Rules of 1989 for Regulation and Control of Authorized Testing Station and Section 56 of the Act 1988 for issue of Certificate of Fitness of transport vehicles. By the said communication, proposal on the details of fees/charges etc. were directed to be submitted. By the subsequent notification dated 11.01.2018, issued by the Government of Assam, the approval of the Governor was accorded to the ASTC for opening Fitness Testing Centers of commercial vehicles/ any other vehicles as specified under Rule 63 of the Central Motor Vehicles Rules, 1989 and Section 56 of the Act of 1988 subject to fulfillment of the conditions. The ASTC was allowed to take service charge of Rs. 300 for LMV and Rs. 500 for medium and heavy vehicles apart from statutory fee of the Department. 8. The aforesaid decision contained in the letter dated 20.11.2017 and 11.01.2018 was the subject matter of challenge in a writ petition, being WP(C) 1395/2018, instituted by certain other petitioners being Association of different bus owners. This Court vide judgment and order date 27.09.2018, had set aside the impugned communications. However, the Court had come to a finding that the ASTC was entitled to venture into any activity including the activity of undertaking an Authorized Testing Station and accordingly observed that there shall not be a bar on the part of the ASTC to make an appropriate application under Section 19 of the Act of 1950 and in such event, the State Government was directed to follow the procedure laid down in Section 19 and come to a finding as to whether to grant or not to grant such approval. The observations and considerations made in the aforesaid judgment would be taken up for discussion at a later stage. 9. The observations and considerations made in the aforesaid judgment would be taken up for discussion at a later stage. 9. It appears that pursuant to the said judgment, the impugned notification dated 17.12.2018 has been issued by the Secretary, Transport Department, whereby, the proposals submitted by the ASTC has been found to be in order with an observation that ASTC possesses required qualifications and was fit to comply with all the requirements as prescribed under Rule 63 of the Rules of 1989 and the Act of 1988 for setting up of Authorized Testing Station. 10. Shri Goswami, learned Senior Counsel, has made the following submissions; (i) the impugned notification is bad in law as the conditions precedent before such decision could be taken are not fulfilled rendering the same wholly without jurisdiction and liable to be declared void ab initio; (ii) the relevant considerations under Section 19 of the Act of 1950 are apparently missing in the impugned notification and therefore, the same cannot be sustained in law; (iii) Though this Court in the earlier round of litigation, namely, WP(C)1395/2018, had interfered with the decision of the respondent authorities, the findings arrived at in paragraph 11 of the judgment is per incuriam and is not in accordance with the provisions of the Statute and it is on the basis of such findings that the impugned notification has been issued; (iv) the impugned notification would amount to conferring unfettered and unbridled powers to the ASTC which is itself in a competitor in running the business of transport with the petitioners and different other transport owners. Under Section 56 of the Act of 1988 read with Rule 63 of the Central Rules of 1989, ASTC cannot be construed to have the powers to run a testing station and this aspect was wholly overlooked by the State Government while considering the application under Section 19 of the Act of 1950; (v) As per Section 19 (m), the activity has to have a connection with the business of the Corporation and to facilitate the same and running of testing station has got no relationship with facilitating the principal activity of the ASTC. Section 56 (2) of the Act of 1988 is confined to certain persons and ASTC does not fulfill the requirement; (vi) If the decision is termed as a policy decision, the same would further be more vulnerable as the entire scheme of the Act including provision for appeal would be rendered futile and an empty formality; (vii) the impugned order traverses beyond the confines of Section 19 of the Act of 1950 and the predetermination of the State Government becomes apparent which is fortified by the stand taken in the affidavit-in-opposition. The decision on the fee remains the same in spite of earlier interference with the identical orders. In fact for non-compliance to the earlier direction, IA(C) 1958/2019 and IA(C) 2965/2019 had to be filed. 11. In support of his submissions, Shri Goswami, learned Senior Counsel, relies upon the following decisions of the Hon'ble Supreme Court - (1) H. H. Maharajadhiraja Madhav Rao & Ors. Vs. Union of India & Anr., (1971) AIR SC 530 ; (2) State of U.P. & Ors. Vs. Synthetics and Chemicals Ltd. & Anr., (1991) 4 SCC 139 ; (3) ICICI Bank & Ors. Vs. Municipal Corpn. Of Greater Bombay & Anr., (2005) 6 SCC 404 ; and (4) Balwant Rai Saluja & Ors. Vs. AIR India Ltd. & Anr., (2014) 9 SCC 407 . 12. In the Case of H. H. Maharajadhiraja Madhav Rao (supra), the 11 (eleven) judges bench of the Hon'ble Supreme Court in paragraph 138 has held as follows "138. ...the Court was not called upon to decide and did not decide that Article 366 (22) was a provision relating to a covenant within the meaning of Article 363. It is difficult to regard a word, a clause or a sentence occurring in a judgment of this Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment." 13. The Case of State of U.P. Vs. Synthetics (Supra) has been cited to buttress the point that discussion and argument are pre-conditions for interfering with a particular order. For ready reference, the relevant extract of paragraph 42 of the judgment is quoted herein below "42. ....In absence of any discussion or any argument the order was founded on a mistake of fact, and, therefore, it could not be held to be law declared. For ready reference, the relevant extract of paragraph 42 of the judgment is quoted herein below "42. ....In absence of any discussion or any argument the order was founded on a mistake of fact, and, therefore, it could not be held to be law declared. The bench further was not apprised of earlier Constitution Bench decisions in Hoechst Chemicals v. State of Bihar and Ganga Sugar Mill v. State of U.P. which specifically dealt with the legislative competence of levying sales tax in respect of any industry which had been declared to be of public importance. Therefore, the conclusion of law by the Constitution Bench that no sales or purchase tax could be levied on industrial alcohol with utmost respect fell in both the exceptions, namely, rule of sub-silentio and being in per incuriam, to the binding authority of the precedents." 14. In the case of ICICI Bank (supra), the Hon'ble Supreme Court in laying down the concept of a binding precedent has held as follows "12. In the case of Municipal Corporation of Greater Bombay (supra), Section 328A was not at all interpreted by this Court. For the case to be a binding precedent, fundamental requirement would be, that the law pronounced should result from the issues raised before the Court between the parties and argued on both sides. In the matter of Municipal Corporation of Greater Bombay the definition of 'skysign' under Section 328 came up for consideration. In reaching the conclusion that the huge metallic board exhibited by BPC Petrol Bunk on a pole with the name of the Company and its symbol (Shell symbol) was a sky-sign, this Court laid emphasis on the expression "in the nature of an advertisement" occurring in the definition of 'sky-sign' in Paragraph 10 which expression is not to be found in Section 328-A. While interpreting Section 328 and construing the words 'in the nature of an advertisement, announcement and direction', this Court held that the advertisement need not necessarily be only or solely for commercial exploitation whereas Section 328A of the Act speaks about 'advertisement' alone and not 'in the nature of an advertisement'. Normally the ratio of the case shall be deduced from the facts involved in the case and the particular provision of law which the Court has interpreted and the decision shall be read with reference to and in the context of particular statutory provisions involved in the matter." 15. In the case of Balwant Rai Saluja (supra), the Hon'ble Supreme Court had made following observations with regard to the concept of precedent as follows "22. This Court in CIT v. Sun Engg. Works (P) Ltd. Has observed: 39. ... It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be complete 'law' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, this Courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings. 24. It is stated therein that a judicial decision is the abstraction of the principle from the facts and arguments of the case. It was further observed in Punjab Land Development case, that: 53. Lord Halsbury's dicta in Quinn v Leathem: ... every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. This Court held in State of Orissa v. Sudhansu Sekar Misra, that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not other observation found therein nor what logically follows from the various observations made in it. 26. This Court held in State of Orissa v. Sudhansu Sekar Misra, that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not other observation found therein nor what logically follows from the various observations made in it. 26. In our view, the binding nature of a decision would extend to only observations on points raised and decided by the Court and not on aspects which it has neither decided nor had occasion to express its opinion upon. The observation made in a prior decision on a legal question which arose in a manner not requiring any decision and which was to an extent unnecessary, ought to be considered merely as an obiter dictum. We are further of the view that a ratio of the judgment or the principle upon which the question before the Court is decided must be considered as binding to be applied as an appropriate precedent." 16. As regards the meaning of "facilitate", Shri Goswami, learned Senior Counsel, by referring to the law lexicon, submits that the meaning of the said term is to "to render easier; to promote, help forward; to lessen the labour of, assist." 17. Shri Y. Doley, learned Standing Counsel for the Transport Department, on the other hand, submits that the petitioners do not have the locus to question the notification dated 17.12.2018. Referring to the affidavit-in-opposition dated 06.09.2019, Shri Doley, learned counsel, has submitted that on 02.11.2018, the proposal was duly submitted by the ASTC and taking the interest of public service as a priority, the notification dated 17.12.2018 has been issued. According to the learned Standing Counsel, Transport Department, the impugned notification does not suffer from any infirmity and therefore, the writ petition ought to be dismissed. 18. Shri N. Dutta, learned Senior Counsel appearing for the ASTC, on the other hand, submits that not only the petitioners lacked locus to maintain the present challenge, the writ petition is itself premature as a right to appeal is provided under Rule 70 which has not been exhausted. Referring to Section 3 of the Act of 1950, the learned Senior Counsel submits that the Corporations are established for providing an efficient and economical system of road transport. Referring to Section 3 of the Act of 1950, the learned Senior Counsel submits that the Corporations are established for providing an efficient and economical system of road transport. He contends that once the concept of economical system comes in, the need to garner resources and funds would automatically arise and the present arrangement is one of such modes to have an economical system. By referring to Rule 2 (a) of the Rules of 1950 relating to "Ancillary Service", Shri Dutta, learned Senior Counsel, submits that the activities sought to be provided would fall within such service. The learned counsel submits that under Section 19 (2) (m), all other things to facilitate proper carrying on of the business were allowed with prior approval and the present action fulfills all such requirements. Referring to Rule 63 (3) of the Central Rules of 1989, it is submitted that the ASTC fulfills all the requirements. The learned Senior Counsel, moreover, questioned as to what legal rights of the petitioners have been violated so as to entitle themselves to file this application under Article 226 of the Constitution of India. Shri Dutta, learned Senior Counsel, finally submits that interest of public service is one of the prime considerations for the decision and this Court should be circumspect in interfering with such decision, that too at the instance of persons having no locus. 19. The rival contentions made by the learned counsels for the respective parties have been duly considered and the materials placed before this Court have been carefully examined. So far as the objection regarding locus of the petitioners are concerned, in view of the fact that the present litigation is a continuation of the earlier writ petition being WP(C) 1395/2018, such objection cannot be sustained and be a hurdle in determination of the lis between the parties. However, before adjudicating the issues involved regarding the legality and validity of the notification dated 17.12.2018, the earlier judgment of the Court dated 27.09.2018, passed by the learned Single Judge in WP(C) 1395/2018, requires a careful examination moreso when in the said judgment, though the impugned notifications were set aside, the power to allow to the ASTC to run such Testing Stations has not been disapproved. Rather a reading of the judgment would bring us to a conclusion that there is the finding that the ASTC was held to be entitled to venture into any activity including the activity of operating an Authorized Testing Station. 20. Since various provisions of the different Statutes are required to be considered, it would be beneficial to extract the relevant provisions in this judgment. "THE MOTOR VEHICLES ACT, 1988 56. Certificate of fitness of transport vehicles.- (1) Subject to the provisions of sections 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purposes of section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorized testing station mentioned in sub-section (2), to the effect that the vehicle complies for the time being with all the requirements of this Act and the rules made there under: Provided that where the prescribed authority or the "authorized testing station" refuses to issue such certificate, it shall supply the owner of the vehicle with its reasons in writing for such refusal. (2) The "authorized testing station" referred to in sub-section (1) means a vehicle service station or public or private garage which the State Government, having regard to the experience, training and ability of the operator of such station or garage and the testing equipment and the testing personnel therein, may specify in accordance with the rules made by the Central Government for regulation and control of such stations or garages. (3) Subject to the provisions of sub-section (4), certificate of fitness shall remain effective for such period as may be prescribed by the Central Government having regard to the objects of this Act. (3) Subject to the provisions of sub-section (4), certificate of fitness shall remain effective for such period as may be prescribed by the Central Government having regard to the objects of this Act. (4) The prescribed authority may for reasons to be recorded in writing cancel a certificate of fitness at any time, if satisfied that the vehicle to which it relates no longer complies with all the requirements of this Act and the rules made there under; and on such cancellation the certificate of registration of the vehicle and any permit granted in respect of the vehicle under Chapter V shall be deemed to be suspended until a new certificate of fitness has been obtained: 1[Provided that no such cancellation shall be made by the prescribed authority unless such prescribed authority holds such technical qualification as may be prescribed or where the prescribed authority does not hold such technical qualification on the basis of the report of an officer having such qualifications.] (5) A certificate of fitness issued under this Act shall, while it remains effective be valid throughout India. CENTRAL MOTOR VEHICLES RULES, 1989. 62. Validity of certificate of fitness.-(1) A certificate of fitness in respect of a transport vehicle granted under section 56 shall be in Form 38 and such certificate when granted or renewed shall be valid for the period as indicated below: (a) new transport vehicle two years (b) renewal of certificate of fitness in respect of vehicles Two years for vehicles up to eight years old and one year for vehicles older than eight years. [(ba) renewal of certificate of fitness in respect of E-Rickshaw and E-cart three years] Provided that the renewal of a fitness certificate shall be made only after an vehicles Inspecting Officer or authorised testing stations as referred to in sub-section (1) of Section 56 of the Act has carried the tests specified in the Table given below, namely:- Sl. No. Item Check Fitment Check make/Type/rating, etc. No. Item Check Fitment Check make/Type/rating, etc. as per original equipment recommendations Check conditions Check functioning Test Remarks 1 2 3 4 5 6 7 8 (1) Spark Plug/Suppressor Cap/High Tension cable Yes Yes Yes No No - (2) Head Lamp Beams Yes No Yes Yes Check (a)Beam focus as per Annexure-VII; (b) in case of authorized testing station using headlight tester, testing procedure and requirement shall be as per AIS-128:2014 (3) Other lights Yes No Yes Yes No Also ensure the unauthorized lights are not fitted (4) Reflectors Yes No Yes No No Ensure colour or reflectors are reflective tapes are as per rule 104 (5) Bulbs Yes Yes Yes No No Ensure that head light bulbs wattage, especially halogen, is not higher than those indicated in IS 1606- 1993 and also ensure thathalogen bulbs with P45t caps are not used in all vehicles (6) Rear view mirror Yes No Yes No No - (7) Safety Glass Yes Yes Yes No No Laminated windscreen glass is used for vehicles manufactured from April, 1996 onwards (8) Horn Yes No Yes Yes No - (9) Silencer Yes No Yes Yes No Ensure no leakage (10) Dash Board equipment Yes No Yes Yes No - (11) Wind Shield Wiper Yes No Yes Yes No - (12) Exhaust emission No No No No Yes Pollution Under Control Certificate (13) Braking System Yes No Yes Yes Yes (a) As per rule 96(8); (b) In case of authorized testing station using roller brake tester, testing procedure, and requirement s shall be as per AIS- 128:2014. (14) Speedometer Yes No Yes Yes No As per rule 117 (15) Steering gear Yes No Yes Yes Check free play Check freeplay as per rule 98 for vehicles with steering wheel (16) Rear Under run Protecting Device For N2, N3, T3 and T4 Yes No Yes No No As per rule 124 (1A) (17) Lateral Side Protection Device For N2, N3, T3 and T4 Yes No Yes No No As per rule 124 (1A) (18) Fastag Yes No Yes No No To be affixed on the front wind screen Item Check Fitment Check make/Type/rating, etc. as per original equipment recommendations Check conditions Check conditions Check functioning Test Remarks Maximum Speed No No No No No Yes The vehicle shall be driven in unladen condition( with full charge and at full accelerator position) on straight or flat road and when the vehicle attains full speed, the maximum speed shall be calculated by measuring time taken to travel fixed distance (say 50 meters). Provided also that if the tests specified in the Table under the first proviso are conducted by an Inspecting Officer or authorized testing station in a State/ Union Territory other than the State/ Union Territory where the vehicle is registered, the Inspecting Officer who conducted the tests shall, on the same day or on the following working day, upload his inspection report in Form 38A at the portal http:// parivahan.gov.in/vahan and also the inspection report singed under his hand and seal to the registering authority by speed post for issue of certificate of fitness by the registering authority within fifteen days from the date of the inspection report, if the vehicle is found by the Inspecting Officer to be in compliance with the provisions of the Act and rules and a shall be given to the driver of the vehicle: Provided also that the next fitness certificate is obtained from the Inspecting Officer or an authorized testing station in the State/ Union Territory of the registering authority where the vehicle is registered}. Explanation- "Inspecting Officer" means an Officer appointed by the State Government under section 213 of the Act.] (2) The fee for the grant or renewal of a certificate of fitness shall be as specified in rule 81. (3) The fee for testing of a vehicle when tested by an Inspecting Officer or authorised testing station, other than the Inspecting Officer in the office of the registering authority, shall be as specified in rule 81. 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 Fonn 39 granted by the registering authority. 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 Fonn 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 96[rupees one lakh] in such manner as may be specified by the State Government. Explanation.-For the purpose of this rule and rules 64 to 72, the registering authority means an officer not below the rank of the regional transport officer of the Motor Vehicles Department established under section 213. Explanation.-For the purpose of this rule and rules 64 to 72, the registering authority means an officer not below the rank of the regional transport officer of the Motor Vehicles Department established under section 213. (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 98[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 veliicles may pass through with ease and speed; (e) the applicant maintains in good condition, the equipment and apparatus for undertaking test pertaining to 100[exhaust gas, engine tuning, engine analysis], smoke emission, brake system, head- lights, 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. (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 subrules (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. ROAD TRANSPORT CORPORATIONS ACT, 1950. 2. Definitions.-In this Act, unless the context otherwise requires - (a) "ancillary service" means any subsidiary service which provides amenities or facilities to persons making use of any road transport service of a Corporation; [(aa) "Board" means the Board of Directors of a Corporation; ... (e) "road transport service" means a service carrying passengers or goods or both by road in vehicles for hire or reward. 19. Powers of Corporation.-(1) Subject to the provisions of this Act, a Corporation shall have power- ... (b) to provide for any ancillary service; ... (2) Subject to the provisions of this Act, the powers conferred by sub-section (1) shall include power- ... (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. ASSAM MOTOR VEHICLE RULE, 2003 2. Definitions-(1) In these rules, unless there is anything repugnant to the subject or the context, ... (m) 'Registering authority : means the District Transport Officer of the district or the Deputy Commissioner of the district where there is no such District Transport Officer within their area of jurisdiction or such other authority as may be specially empowered in this behalf by the State Government by notification published in the Official Gazette. The licencing authority shall delegate the authority to one of his Subordinate officer in writing to issue or renewal of licence, during his leave period. After return from the leave the registering authority shall authenticate the works done by his subordinate officer during his leave period. 26. The licencing authority shall delegate the authority to one of his Subordinate officer in writing to issue or renewal of licence, during his leave period. After return from the leave the registering authority shall authenticate the works done by his subordinate officer during his leave period. 26. Certificate of Fitness : (i) A Certificate of Fitness shall be issued or renewed on receipt of an application to the Inspector of Motor Vehicle through Registering Authority at least 30 days ahead of the expiry of the fitness certificate in the Form Nos. 21 and 21 (A) as the case may be by the officer of the Transport (MV) Department not below the rank of Inspector of Motor Vehicle or an Authorised Testing Station, having a letter of authority issued under sub-section (2) of Section 56 of the Act read with Rule 63 of the Central Motor Vehicle Rules, 1989 in Form No. 39 as prescribed in the Central Motor Vehicle Rules 1989 to the effect the vehicle complies with all the requirements of the Act and the Rules made there under together with the type of vehicle inspected. The Fitness Certificate issued by Motor Vehicle Inspector must be countersigned by DTO and DTO will keep a record of each certificate issued. Provided that where the authority prescribed for issue or renewal of Certificate of Fitness refuses to issue such certificate, it shall furnish the owner of the vehicle with its reasons in writing for such refusal in the Form No. 21 (C): (ii) A Fitness Certificate can be issued to a vehicle only at the office of the District Transport Officer where the vehicle is either registered or recorded. But a temporary Fitness Certificate may be issued at other offices in the Form No. 21 (B) for a period not more than 30 days, if the vehicle is stuck off in a place for repair etc. (iii) The owner of a vehicle applying for Fitness Certificate shall cause the vehicle to be produced for inspection on such date, on such time and place as the Inspector of Motor Vehicles may thereafter upon reasonable notice, appoint. 79. (iii) The owner of a vehicle applying for Fitness Certificate shall cause the vehicle to be produced for inspection on such date, on such time and place as the Inspector of Motor Vehicles may thereafter upon reasonable notice, appoint. 79. Preparation of scheme for State Transport Service : (1) The Government shall, on receipt of a proposal from the Assam State Transport Corporation for the introduction of road transport service in relating to any area or route or portion thereof, whether to the exclusion, complete or partial of other persons or otherwise, issue a notification to this effect in the Form No. 1 (Trans) so appears in the Schedule-III hereto giving particulars of the nature of service proposed to be undertaken, the route and the area to be covered and inviting objections, if any from the aggrieved persons and publish the same in the Official Gazette and also in not less than one leading newspaper in the regional language. (2) Any person or person aggrieved by the proposal so published may me objections within 30 (thirty) days from the date of its publication in the Official Gazette before the Government in the Form No. (2) (Trans) as appears in the Schedule III hereto. (3) On receipt of any objection the Government, after giving an opportunity to the objector or his representative and the representative of the Assam State Transport Corporation of being heard, shall approve the scheme with such modification, if any, as it may consider necessary and fit and shall publish the same in the Form NO.3 (trans) as appears in the Schedule III hereto in the Official Gazette and not less than one leading news paper in the regional language and the same shall be final from the date of its publication. (4) Provisions contained in sub-rule (1), (2) above, shall be applicable in respect of the vehicles plying in inter-state routes under any reciprocal agreement. 87. Periodical testing and inspection of vehicles : (l) The Motor Vehicle Inspector shall inspect and test all Transport Vehicles for issue of certificate of fitness periodically as mentioned under Rule 62 of the Central Motor Vehicle Rules, 1989. 87. Periodical testing and inspection of vehicles : (l) The Motor Vehicle Inspector shall inspect and test all Transport Vehicles for issue of certificate of fitness periodically as mentioned under Rule 62 of the Central Motor Vehicle Rules, 1989. (2) (i) The Motor Vehicle Inspector may inspect any Transport Vehicle at any time at any public place and if the vehicle is found unfit for plying on public roads and is likely to cause danger to the public, shall suspend or cancel the certificate of fitness of such vehicle and direct the owner of the driver in writing in Form No. 21(C) for rectify the defects and to produce the vehicle after such rectification before him within a period note exceeding two months for the purpose of obtaining a fresh certificate of fitness. (ii) The MVI (Motor Vehicle Inspector) shall inspect all vehicle met with an accident before release of the same by the Competent Authority to find out the mechanical defects, if any of the vehicle only when he gets a direction from the concerning District Transport Officer. (3) Test for smoke emission level and other pollutant level for Motor Vehicle.- (a) Testing for smoke emission level and carbon-monoxide level for motor vehicles for the purpose of issue of "Pollution Under Control Certificate" as required under Rule 115(7) of the Motor Vehicles Rules, 1989 shall be done by Authorised Testing Stations to the effect that the vehicle complied for the time being with the requirement of the provisions of the Motor Vehicles Act and Rule, framed there under. (b) The licence fees for issue of licence for establishment of each Authorised Testing Station shall be as specified below: (i) Initial licence fees for Petrol Vehicles. Rs. 10,000/- (ii) Initial licence fees for Diesel Vehicle. Rs. 10,000/- (iii) Initial fees for Gas Analysis. Rs. 10,000/- (iv) Subsequent renewal fees for each Categories of vehicles after lapse of One year from the issue of licence Rs. 5000/- (Per year) (v) Subsequent renewal fees for Gas Analyses Rs. Rs. 10,000/- (ii) Initial licence fees for Diesel Vehicle. Rs. 10,000/- (iii) Initial fees for Gas Analysis. Rs. 10,000/- (iv) Subsequent renewal fees for each Categories of vehicles after lapse of One year from the issue of licence Rs. 5000/- (Per year) (v) Subsequent renewal fees for Gas Analyses Rs. 5000/- (Per year) (c) Any Officer not below the rank of Motor Vehicles Inspector or Enforcement Inspector or sub-inspector of Police, who has reason to believe that a Motor Vehicle driven on or used on public road is by virtue of smoke or other pollutants emitted from it likely to cause environmental pollution endangering the health direct the Driver or any person in charge of the Vehicle to undergo test to measure the standard of black or other pollutants emitted from the vehicles in anyone the Authorised Testing Station. (d) The Driver or any person in-charge of the Vehicle shall upon demand by any Officer under Clause (c) allow the vehicle to be tested for the purpose of measuring the standard of smoke or level of other pollutants or both. (e) The measurements of standard smoke emission level and carbon monoxide level for vehicle shall be done with a smoke meter/Gas analyzer of a type specified in Rule 116 (3) of the Motor Vehicles Rules, 1989 or approved by the State Government. (f) The Authorized Testing Station conducting the test after conducting the test shall prepare a notice in duplicate containing among other things, the reading of the meter or the level of pollutants of the vehicle, as the case may be and if the test result indicate that the motor vehicle does not comply with the provisions of the subrule (2) of Rule 115 of the Central Motor Vehicles Rules, 1989, direct the driver or owner in charge of the vehicle to produce the vehicle for re-test within such period, not being later than 7 days and defects may be specified in the notice to be duly rectified so as to comply with provisions of Rule 115 of the Central Motor Vehicle Rules, 1989. (g) In the event of the Driver or any person in-charge of the vehicle referred to in sub-rule (3)(a) fails to produce the vehicle within the specified period for re-test of the vehicle or the vehicles, on re-test show the level of smoke or other pollutants being more than permissible under sub-rule (2) or Rule 115, the owner of the vehicle shall be liable for the penalty prescribed under subsection (2) of Section 190 of the Act. In the event, such vehicle shall be deemed to have contravened the provision of sub-rule (2) of Rule 115 of the Central Motor Vehicle Rules 1989 and the checking Officer shall report the matter to the Registering Authority. (h) The Registering Authority shall on receipt of the report referred to in sub-rule (g) for reasons to the recorded in writing, suspend the certificate of registration of the vehicle until such time the certificate is produced before the Registering Authority to the effect that the vehicle complies with the, provision of sub-rule (2) of Rule 115 of the Central Motor Vehicle Rule 1989. (4) Pollution under Control Certificate.- (a) After expiry of a period of one year from the date on which the Motor Vehicle was first registered, every such vehicle shall have to obtain a 'Pollution Under Control' Certificate showing that the smoke emission level from that vehicle is within the limit prescribed under Rule 115 of the Central Motor Vehicles Rules 1989. A 'Pollution under Control' Certificate shall remain valid for a period of six months from the date of its issue. (b) A 'Pollution Under Control' issued only by a State Government Department or an Authorised Testing Station licenced by the State Government to test smoke emission level in the Form prescribed by Notification/Government Orders in this behalf, shall be accepted for the purpose of these rules. (c) Notwithstanding the provisions contained in Clause (a) the Competent Authority, if it thinks fit may direct a vehicle to be tested inspire of its having a valid 'Pollution Under Control' Certificate. (d) To test for smoke emission level and Carbon Monoxide level for vehicle for the purpose of 'Pollution under Control' Certificate including minor engine/fuel pump adjustment, the authorised testing stations shall be allowed to realise a consolidated amount of fees per vehicle at the rates as specified (category wise of the vehicles) as below : Sl. Nature of Vehicle Emission fees Govt. Nature of Vehicle Emission fees Govt. dues Total (Rs.) 1. Moped 10.00 5.00 15.00 2. Three Wheeler (Petrol) 25.00 10.00 35.00 3. Motor Car/Three Wheeler (Diesel) 30.00 10.00 40.00 4. All other Diesel Driven Vehicle 50.00 15.00 65.00 5. All two wheeler other than Moped 15.00 5.00 20.00 The rates so fixed are inclusive of all costs, charges, fees and Govt. dues. The testing station shall not be entitled to claim any further amount or concession either from the Government on any account whatsoever. The Vehicle which defaults in obtaining Pollution Under Control Certificate in time under Clause (a) above will have to apply to obtain Pollution Control Certificate to the concerning D.T.O. After receipt of such application D.T.O., will allow the vehicle for obtaining the Pollution Under Control Certificate on payment of a fine of Rs. 100 (Rupees one hundred). The private emission testing stations cannot issue Pollution Under Control Certificate to a defaulting vehicle i.e., a vehicle whose pollution certificate has expired, unless a prior approval is being obtained from the concerning D.T.O. If any testing station found to be issued such certificate without the prior approval of the concerning D.T.O., then the licence of that private emission testing station is liable to be suspended. (f) The licence i.e., Emission Testing Station shall be liable to display the rates of emission testing fees including the Govt. dues in the conspicuous place of the station and he has to issue proper money receipt against each and every vehicle. The money receipt books will have to be authenticated by the concerning D.T.O., before use. The licence will have to deposit the Govt. dues collected to the concerning D.T.O's., on fortnightly basis. (g) The private AET licence are bound to obey all the instruction of the Govt. issued from time to time, failing which his/her licence shall be liable to be cancelled. In the event of suspension or cancellation of licence the licence fees will be confiscated." 21. In this connection, the submission of Shri Goswami, learned Senior Counsel, submits that the judgment on this issue is per incuriam has to be examined moreso when the conclusion was arrived at without any discussion/submission by any of the parties to the litigation. In the event of suspension or cancellation of licence the licence fees will be confiscated." 21. In this connection, the submission of Shri Goswami, learned Senior Counsel, submits that the judgment on this issue is per incuriam has to be examined moreso when the conclusion was arrived at without any discussion/submission by any of the parties to the litigation. In paragraph 11 of the said judgment, the learned Single Judge has made an observation that operating Authorized Fitness Centre can be construed to be an activity undertaken by the ASTC for proper carrying out of its business. The said observation is followed by the conclusion arrived at in paragraph 20 of the judgment. For ready reference, paragraph 11 and 20 are extracted herein below- "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 doo 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. 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. 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." 22. The aforesaid observation of the learned Single Judge is required to be examined from the point of view of the statute holding the field. The statements of objects and reasons of the Road Transport Corporation Act of 1950 are to provide efficient, adequate, economical and properly coordinated system of road transport service. Road transport service itself has been defined in Section 2 (e) of the said Act to mean a service carrying passengers or goods or both by road in vehicles for hire or reward. 'Ancillary Service' as defined in Section 2 (a) is to mean subsidiary service which provides amenities or facilities to persons making use of any road transport service of a Corporation. Though various powers have been vested with the Corporation by Section 19 including to provide for Ancillary Service under Section 19 (1) (b) or even other things to facilitate the proper carrying on of the business of the Corporation under Section 19 (2) (m), this Court is unable to agree with the conclusion that the activity of running an Authorized Testing Station would either be an Ancillary Service or a thing to facilitate the proper carrying on of the business of the Corporation. If a conclusion is arrived that there is no such power on the part of the Road Transport Corporations (ASTC herein), the requirements of further adjudication will not arise. It may be mentioned on the basis of the observation made by the learned Single Judge in the earlier judgment that ASTC was entitled to venture into the activity of operating an Authorized Testing Station. 23. It may be mentioned on the basis of the observation made by the learned Single Judge in the earlier judgment that ASTC was entitled to venture into the activity of operating an Authorized Testing Station. 23. In view of the aforesaid discussion and the fact that the finding of the learned Single Judge in the judgment and order dated 27.09.2018 is unable to be agreed upon by this Court with regard to the observation that ASTC is entitled to carry on the business of running an Authorized Testing Station, this Court is of the opinion that the issue may be placed before the Hon'ble Chief Justice to refer it to a larger Bench for a conclusive decision on the issue.