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Radha Gobinda Paul, Secretary, Dist. Transport Organization, Midnapore and Self Vs. Regional Transport Authority, Midnapore - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 883 of 1953
Judge
Reported inAIR1955Cal59,58CWN553
ActsMotor Vehicles Act, 1939 - Sections 43, 46, 47, 48, 51, 67 and 68; ;Motor Vehicles Rules - Rules 59 and 68; ;Constitution of India - Articles 226 and 227
AppellantRadha Gobinda Paul, Secretary, Dist. Transport Organization, Midnapore and Self
RespondentRegional Transport Authority, Midnapore
Appellant AdvocateSisir Kumar Das and ;Benode Behari Haldar, Advs.
Respondent AdvocateHemendra Kumar Das and ;Smriti Kumar Roy Choudhury, Advs.
Excerpt:
- .....68, it can prescribe the forms to be used for the purpose of the chapter, including the form of permits rules have been framed and under rule 59, every application of a permit in respect of transport vehicle has to be in the form prescribed 'therein. the relevant form for applying for a permit in respect of particular stage carriage is form p. st., pa, as set out at page 116 of the rules. in this application form item 8 is as follows: 'the standard rate of fare which it is proposed to charge is................ pies per passenger per mile.'4. at the bottom is item 17 which is a declaration by the applicant that the statements in the application form are true and that the applicant agrees that 'they shall be conditions to any permit issued to me/us.'5. the first thing that one will.....
Judgment:
ORDER

Sinha, J.

1. The petitioner Radha Govinda Paul has made this application on his own behalf as well as in his capacity as the Secretary of an association known as 'The District Transport Organization, Midnapore.' The petitioner is himself the owner of several Buses plying in the district of Midnapore and the association consists of various owners of Buses plying or intended to ply in that district. The Association is not an incorporated one and the question will arise as to whether the petitioner can properly represent it and whether I can take any notice of this application as having been made on behalf of the association. The petition shows that the association has been in existence for more than 10 years.

2. It appears that since December 1951, the fares that were charged by the members of the association including the petitioner had the concurrence of the Regional Transport Authority and was according to a schedule set out in paragraph 3 of the petition. In August 1952, however, the Regional Transport Authority appointed a committee to investigate into the question of a reduction in Bus fares. The committee considered the representations of various bodies including the District Transport Organization and finally, in September 1952, fixed certain fares which are set out in paragraph 6 of the petition. It appears that these fares as newly fixed are lower than previous fares, which is the real reason for objection on behalf of the Bus owners. On or about 23-3-1953, the petitioner Radha Govinda Paul was served with a memo being memo No. 4088 (150) J. G., dated 18-3-1953, a copy whereof is annexed to the petition. The memorandum recited that Stage Carriage fares had been modified by the R. T. A. and such modification was to be treated as a condition of each permit issued to Stage Carriage permit-holders of the district. Copies of this memo were sent to all Bus owners plying on the routes within the district for giving immediate effect to the modified rates.

3. The short point taken on behalf of the petitioner is that the respondent, Regional Transport Authority, Midnapur, is not authorised by the Motor Vehicles Act to fix the fares to be charged in respect of stage carriages, from which it follows that it could not modify any fares which the Bus owners had been charging. Under Section 43, Motor Vehicles Act, the State Government has been given express power to fix the maximum or minimum fares or freights for stage carriages and public carriers throughout the State. Under Section 46, an application for a stage carriage permit is to mention particulars set out therein, or such matters as may be prescribed, which means prescribed by the rules. Section 47 deals with the procedure to be followed by the Regional Transport Authority in considering application for Stage Carriage permits. In doing so, it has to consider any representation made by any association interested in the provision of road transport facilities, which will of course include the association of which the petitioner is the Secretary.

Section 48 is important and the relevant portion is as follows:

' 'Power' to restrict the number of Stage Carriages and impose conditions on stage carriage permits'-

A Regional Transport , Authority may, after consideration of the matters set forth in Sub-section (1) of Section 47.... (d) attach to a Stage Carriage permit any prescribed condition or any one or more of the following conditions, namely-

(I) that the service specified in the permit shall be commenced not later than specified date and be continued for a specified period;

(II) that the service may be varied only in accordance with specified conditions;

(IIa) that the stage carriage or stage carriages shall be used only in specified routes or in a specified area.

(III) that copies of the fare table and time table shall be exhibited on the stage carriages and that the fare table so exhibited shall be observed;

(IV) that not more than a specified number of passengers and not more than a specified amount of luggage shall be carried on any specified Vehicle at any time.

(V) that within Municipal limits and in such other areas and places as may be prescribed passengers shall not be taken up or set down at or except at specified points; or

(VI) that tickets shall be issued to passengers for the fares paid.'

Under Section 51 the Regional Transport Authority has been given the powers to fix the farae in the case of Motor Cabs. Section 67 grants powers to the State Government to make rules for certain purposes mentioned therein, in respect of Stage Carriages and contract carriages. Under Section 68, rule making power has been given to the State Government to make rules for the purpose of carrying into effect the provisions of Clause 4 of the Act. Under Sub-section (2), Clause (c) of Section 68, it can prescribe the forms to be used for the purpose of the chapter, including the form of permits Rules have been framed and under Rule 59, every application of a permit in respect of transport vehicle has to be in the form prescribed 'therein. The relevant form for applying for a permit in respect of particular stage carriage is form P. St., PA, as set out at page 116 of the rules. In this application form item 8 is as follows: 'The standard rate of fare which it is proposed to charge is................ pies per passenger per mile.'

4. At the bottom is item 17 which is a declaration by the applicant that the statements in the application form are true and that the applicant agrees that 'they shall be conditions to any permit issued to me/us.'

5. The first thing that one will observe is that under Section 43 a clear power has been given to the State Government to fix the fares so far as the Stage Carriages are concerned, and that under Section 51 express power has been granted to the Regional Transport Authority to fix the fares for motor cabs, but no mention has been made of stage carriages. There is no express provision in the Motor Vehicle Act whereby power has been given to the Regional Transport Authority to fix the fares in the case of stage carriages. But this is a power which it is arrogating to itself in a rather indirect fashion. What is said is that Section 48 gives the power to the Regional Transport Authority to attach to a permit, any prescribed condition or the conditions set out in Section 48(d)(I) to (VI). The fixing of the rates with regard to stage carriages does not come under any of the headings (I) to (VI). But it is said that the rules prescribe that the application must be in a prescribed form and the forms contain a representation as to the fare that is going to be charged and the representation by agreement was made a condition of the permit. In my opinion, this is a very round-about way of exercising a power that is stated to exist.

Section 48, Clause (d) allows the Regional Transport Authority to attach to the permit any 'prescribed' condition. 'Prescribed' means prescribed by any rules made under the Act. Such rules can only be made by the State Government under Section 67 or Section 68. Therefore, the simple thing would be to prescribe such a condition by framing rules in the way that the rules can be framed under the Act. In other words, either the express powers given in Section 51 ought to be increased or the power ought to be granted by making specific rules. What then is the position. The R.T.A. can impose conditions to the permit. But in cases which are not specifically dealt with in Section 48(d), the conditions must be prescribed by rules made under the Act, which can only be made by the State Government. The State Government has not made any rules by which any amount has been fixed as fair for Stage Carriages, nor has it authorised the R. T. A. to impose it as a condition to a permit.

A certain form has been prescribed for application for a permit and at the end there is a declaration that the contents of the application will be a condition for the issue of the permit. Therefore, it is the parties who are by contract treating the contents of the application as conditions--the Government is not prescribing such conditions by rules. Besides, the rule-making powers of the Government cannot be exercised in this fashion. Rules are to become part of a statute and therefore must be considered by the rule-making authority. It cannot depend upon what a particular applicant chooses to state in the body of his application. Rules must be of universal application, whereas the conditions agreed to by a particular applicant would only be binding upon him. In my opinion, it cannot be said that any rule has been prescribed which enable the R. T. A. to make fixation of rates a condition of the permit. It follows, therefore, that the Regional Transport Authority has no power to fix the rates under the Act until either of the two contingencies happen, namely, some provision is made by amending the Act, granting to it the power to fix the rates of fares in respect of Stage Carriages or such a power is prescribed by rules made by the State Government, empowering the R.T.A. to impose It as a condition of the permits issued to Stage Carriage owners.

6. In the present case however, it is quite clear that the Regional Transport Authority had no right to fix the fare. Assuming that such a power could be derived from a representation made in the application and a permit issued thereon, it is now admitted upon looking at the original applications that, so far as the petitioner Radha Govinda Paul is concerned, he has made no representation about any rate to be charged in his application and the permit had been granted notwithstanding the omission to fill up that column. As a matter of fact, in none of the original applications, which are on record of the R. T. A., Midnapore, in respect of the permits granted to Bus-owners in routes within its jurisdiction, is there any representation made with regard to rates. What has happened is this--nearly all the permits are renewals and in the original applications made many years ago the rates might have been mentioned but at the time of renewal the rates were either deliberately omitted to be mentioned or else everybody lost sight of the importance of it. Thus the permits have all been given, not on the basis of any condition as to the fixation of rates, but without any such condition.

It follows that so far as the petitioner is concerned in his individual capacity he is certainly entitled to relief in this application. The next question is whether I can grant relief to the association as a whole. It has been held in -- 'Sabitri Motor Service Ltd, v. Asansole Bus Association', : AIR1951Cal255 (SB) (A) that inasmuch as Section 47 specifically entitles an association interested in the provision of road transport facilities to make representations, an association which answers that description but is unregistered and unincorporated can nevertheless make representations. It Is argued that the power which is exercised under Section 48 and which refers to Section 47 would also give a right to such an association to be heard if it affected its interests. It might well be so, but in this particular case, it appears that all the members of this unincorporated and unregistered association are not asking for the relief claimed in the petition because some of them have already accepted the rates that have been fixed by the Regional Transport Authority. Therefore, in any event, it is not possible for the Court to grant relief to the association as a whole because it is not a legal entity and all the members thereof do not seek the relief which has been asked for. In my opinion, I cannot grant any relief to the association as a whole in this application.

7. The result is that the Rule is made absoluteso far as the application of Radha Govinda Paulfor self is concerned, but is discharged so far asthe application is on behalf of the associationknown as the 'District Transport Organization,Midnapore,' not on the merits but on the groundabove-mentioned. There will, therefore, be a writof mandamus directing the respondent not toenforce the contents of the memorandum mentioned in the petition dated 19-3-1953 and the resolutions mentioned therein of the Regional Transport Authority, Midnapore, in so far as they seekto fix the rates of fares to be charged for stagecarriages, or to make it a condition of the permitgranted for plying stage carriages within thejurisdiction of the R. T. A., Midnapore. Therewill be no order as to costs.


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