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2020 DIGILAW 548 (CAL)

Dipankar Batabyal v. State of West Bengal

2020-07-01

SUBRATA TALUKDAR

body2020
JUDGMENT : 1. The short question in issue is the claim of the writ petitioner in favour of curtailment of his stage carriage permit from Howrah Station to Amta and back via Munshirhat bearing the Route No. E-45. 2. Mr. Ray, Learned Counsel for the petitioners, submits that the curtailment was sought for the stage Munshirhat to Amta. It is submitted that such curtailment is in conformity with the provisions of Section 80 (3) of the Motor Vehicles Act, 1988, since amended, (hereinafter referred to for short as the MV Act). It is also submitted that such curtailment is for a total of 15 Kilometers, which is much within the permissible variation and/or curtailment of 24 Kilometers provided by Section 80 (3) of the MV Act. 3. Being refused the prayer for curtailment, the petitioners twice moved the Hon’ble Court by way of two successive writ petitions being WP No. 5595 (W) of 2018 and WP No. 13395 (W) of 2018. Twice the Hon’ble Court was pleased to remand the matter to the Regional Transport Authority (RTA), Howrah for consideration afresh in the light of the observations made by the Hon’ble Court. 4. By order dated 14th May, 2018, the Hon’ble Court found the prayer of the petitioners for curtailment otherwise maintainable under the provisions of Section 80 (3) (Supra). Accordingly, the issue was remanded for consideration on merit by the RTA, Howrah. 5. By a subsequent solemn order dated 6th September, 2018, the Hon’ble Court once again remanded the issue for consideration by the Secretary, RTA, Howrah. 6. It is the decision of the RTA, Howrah arising out of the second remand, as communicated to the petitioners on the 10th of December, 2018, which is the subject matter of challenge in the present writ petition. The operative part of the communication dated 10th December, 2018 (supra) is relevant for the present discussion and therefore extracted below:- “RTA finds that as per section 80 (3) of M.V. Act. 1988” any extension or curtailment of the route or routes of the area specified in the permit shall be treated as an application for the grant of a new permit.” If RTA considered the prayer the said will be created a new route from Howrah Station to Munshirhat which is a non-notified route. As per Notification no. 1988” any extension or curtailment of the route or routes of the area specified in the permit shall be treated as an application for the grant of a new permit.” If RTA considered the prayer the said will be created a new route from Howrah Station to Munshirhat which is a non-notified route. As per Notification no. 3438-WT/3M-139/2004 dated 02/08/2004 published in the Kolkata Gazette in compliance with the judgment of the Hon’ble Division Bench, High Court Calcutta in G.A. no. 568 of 2002/A.P.O.T. no. 83 of 2002 “No new permit for stage carriage shall be issued which may originate/terminate in Esplanade and Band Stand in Kolkata and Howrah Station.” 7. Mr. Ray, Learned Counsel, submits that the decision post the second remand is flawed since the curtailment sought does not amount to grant or formulation of a new route and, is also in conformity with the provisions of Section 80 (3) of the MV Act. Since the curtailment prayed for does not fall foul of statutory provisions, it also does not fall foul of the Notification dated 6th August, 2004 of the Transport Department, Government of West Bengal as issued in compliance of the order of the Hon’ble Court restricting creation/formulation of any new bus route in Kolkata and Howrah as well as any new stage carriage permit originating/terminating in Esplanade and Band Stand in Kolkata and Howrah Station. In support of his arguments Mr. Ray relies upon an unreported decision in FMAT 2002 of 1996 and the reported authority in AIR 1996 Kerala 104. 8. Mr. Sen, Learned Additional Government Pleader (AGP), strongly opposes the prayer of the petitioners on the ground that the language of Section 80 (3) of the MV Act is unequivocal. For the benefit of this discussion, S.80 (3) Proviso (i) and (ii) reads as follows:- “(i) In the case of variation, the termini shall not be altered and the distance covered by the variation shall not exceed twenty-four kilometers. For the benefit of this discussion, S.80 (3) Proviso (i) and (ii) reads as follows:- “(i) In the case of variation, the termini shall not be altered and the distance covered by the variation shall not exceed twenty-four kilometers. (ii) In the case of extension, the distance covered by extension shall not exceed twenty-four kilometers from the termini, and any such variation or extension within such limits shall be made only after the transport authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so varied or extended or any part thereof.” 9. It is submitted that the power to formulate routes for plying stage carriages lies with the State Government and not with the RTA or with the STA. In this connection Mr. Sen relies upon Section 68 (3)(ca) which reads as follows:- “S.68…(3)(ca) Government to formulate routes for plying stage carriages” 10. Therefore, Learned AGP submits that notwithstanding the fact that the curtailment is below the permissible 24 Kilometers under Section 80 (3) Proviso (i), there is a clear prohibition in the Proviso that such variation and/or curtailment cannot be given effect to if it results in a change of termini. 11. In the facts of the present case one of the termini points, namely Amta, will be changed to Munshirhat if the prayer of the petitioners is allowed. Such change in one of the termini points falls foul of Section 80 (3) Proviso (i) of the MV Act. Such change in termini shall amount to formulation of a new stage carriage route, a power which the RTA does not possess and in law, the State Government being the only repository of such power. 12. Furthermore, in the event a revised permit is granted to the petitioners, the same would tantamount to a new route on a new permit originating from Howrah Station and terminating at Munshirhat. Such variation and/or curtailment shall further fall foul of the Notification dated 6th August, 2004. Learned AGP distinguishes the judgment in FMAT 2002 of 1996 on the ground that the principle distinguishing the legal difference between grant of a permit and issuance of a permit is not applicable to the present facts. Such variation and/or curtailment shall further fall foul of the Notification dated 6th August, 2004. Learned AGP distinguishes the judgment in FMAT 2002 of 1996 on the ground that the principle distinguishing the legal difference between grant of a permit and issuance of a permit is not applicable to the present facts. The permissible limits of variation and/or extension could be applied by the RTA or the STA provided that either the RTA or STA is satisfied that such variation or extension is ex facie in public interest. 13. Therefore, Learned AGP submits that in view of the clear prohibition against change in termini, the legal fiction is created by Section 80 (3) Proviso (i) that change in termini shall ipso facto result in public inconvenience unless the State formulates a new Route. 14. In the backdrop of the above discussion, this Court has no reason to take a view different from the view taken by the State Respondents. 15. Accordingly, the writ petition fails. 16. There shall be no order as to costs. 17. WP No. 506 (W) of 2019 stands thus dismissed. 18. Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.