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Nadia District Bus Owners Association Vs. District Magistrate, Nadia and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKolkata High Court
Decided On
Case NumberC.R. No. 200 (W) of 1964
Judge
Reported inAIR1969Cal458
ActsConstitution of India - Article 226; ;Motor Vehicles Act, 1939 - Sections 75 and 76; ;Bengal Motor Vehicles Rules, 1940 - Rule 101; ;Evidence Act, 1872 - Section 115
AppellantNadia District Bus Owners Association
RespondentDistrict Magistrate, Nadia and ors.
Appellant AdvocateNitya Ranjan Biswas, Adv.
Respondent AdvocateS.C. Roy and ;P. Roy, Advs.
Cases ReferredT. B. Ebrahim v. Regional Transport Authority
Excerpt:
- .....that the order passed by the regional transport authority in this regard was to be made by the district magistrate and the regional transport authority could communicate its views on the subject if it had any. accordingly by its order dated 25th september, 1963, the s. t. a. set aside the resolution and give a direction to the district magistrate for riving opportunity to the petitioner as also other parties interested, for hearing before the district magistrate before he took a decision under rule 101 of the bengal motor vehicles rules although it was observed that there was no express provision for giving such hearing either under section 76 of the act or rule 101 of the bengal motor vehicles rules. this order was duly communicated to the petitioner by a memo dated 8th november,.....
Judgment:
ORDER

A.K. Sinha, J.

1. The instant writ petition is directed against certain order and directive given by the District Magistrate, Nadia shifting a Bus Stand from the existing site in front of the Police outpost Ranaghat on the B. N. Pal Chowdhury Road to a site on Jagpur Anulia Road. Briefly the facts as pleaded are as follows:

2. The petitioner is a registered Society composed of the Bus Owner Members of the District Nadia looking after the interest of the local Bus Owners and also the interest of the general travelling public. There is a permanent Bus stand at Ranaghat in the district of Nadia in front of Police Outpost, Ranaghat on B. L. Pal Chowdhury Road, adjoining the Railway station boundary wall which was allowed to have been fixed by the Ranaghat Municipality in July, 1959 and duly approved by the Regional Transport Authority, Nadia. By a resolution of the Regional Transport Authority, Nadia dated 16-1-1963, this Bus stand was decided to be shifted towards a site on Jagpur Anulia Road more than a mile off from the Ranaghat Railway Station. It is alleged, that this site was not covered by the route permit and had the effect of reducing the existing length of the route from 24 to 23 miles. After the said resolution by a letter dated 5-2-1963, the Regional Transport Authority requested the petitioner to take steps so that the shift-Ing might be effected early. As against the said resolution and direction of the Regional Transport Authority, the petitioner preferred an application before the State Transport Authority, West Bengal for revision under S. 64-A of the Motor Vehicles Act (hereinafter referred to as the Act) and prayed for cancellation of the resolution on grounds that it was passed without jurisdiction and in case the existing Bus Stand was shifted as resolved, the interest of the travelling public would be seriously affected and further that such resolution was passed without giving any opportunity to the petitioner or other persons vitally interested in making representation against the same. Upon this application for revision the S. T. A. took the view that the order passed by the Regional Transport Authority in this regard was to be made by the District Magistrate and the Regional Transport Authority could communicate its views on the subject if it had any. Accordingly by its order dated 25th September, 1963, the S. T. A. set aside the resolution and give a direction to the District Magistrate for Riving opportunity to the petitioner as also other parties interested, for hearing before the District Magistrate before he took a decision under Rule 101 of the Bengal Motor Vehicles Rules although it was observed that there was no express provision for giving such hearing either under Section 76 of the Act or Rule 101 of the Bengal Motor Vehicles Rules. This order was duly communicated to the petitioner by a memo dated 8th November, 1963.

3. The District Magistrate thereafter gave a notice to the petitioner to appear before him on 26th November, 1963 at 10.30 a. m. in connection with the hearing about the shifting of the said Bus stand at Ranaghat. The petitioner took several adjournments from time to time and ultimately the matter was fixed for hearing at 10.30 A, M. on 4th January 1964. On the same date the District Magistrate rejected the prayer of the petitioner for an opportunity of hearing as there was no body present on its behalf, but it is alleged that the petitioner's Advocate Sri Manindra Kumar Biswas was late in reaching the District Magistrate's chamber by only 20 minutes. Thereafter, in 6pite of several representations no further hearing was given. On the contrary, a letter was issued from the office of the District Magistrate to the Regional Transport Authority, Nadia with a direction for shifting the Bus stand immediately to the site on Jagpur Anulia Road.

4. Upon these facts, it was contended by Mr. N. R. Biswas, learned Advocate for the petitioner, that the District Magistrate did not apply his mind to the facts of the present case in the light of the order that was made by the S. T. A. on 25th September, 1963. I fail to see how this was so. A notice was admittedly given to the petitioner for an opportunity of hearing. The petitioner, thereafter, repeatedly took several adjournments from time to time and upon the last petition made on 28th December, 1963 for adjournment, time was allowed. But it was made clear by the District Magistrate that no further time would be allowed. Even after such order, it appears from the order dated 5th January. 1964, that the matter was taken up for hearing by the District Magistrate at 10.40 A. M. but the party was found absent on repeated calls. From the attitude adopted by the petitioner it was very natural to infer that the petitioner was keen only to delay the matter and that, was the reason why it was repeatedly taking adjournment. If, in these circumstances, the prayer of the petitioner for getting an opportunity of hearing in the matter was rejected. I cannot see what wrong the District Magistrate committed in making the order. It is true that the S. T. A. gave a direction to the District Magistrate for giving the petitioner an opportunity of hearing but that does not mean that such opportunity will be kept open indefinitely on the mere desire of the party. The District Magistrate has certainly the power to reject the petition if according to him there was no sufficient materials for granting such adjournment. In this case, I am satisfied, the District Magistrate on consideration of all relevant matters rightly refused the prayer of the petitioner and proceeded ex parte. I am, therefore, unable to accept the contention.

5. The next contention made on behalf of the petitioner is that there being no provision for shifting of Bus stand either in the Act or the Rules, the decision of the District Magistrate in shifting the Bus stand or any direction given by him to that effect is entirely illegal and without 'jurisdiction. In support of the contention reference was made to Section 75 and Section 76 of the Act and Rule 101 of the Rules to show that in none of the above-said two sections or the rule there is power given to the District Magistrate to shift the Bus stand. I cannot allow this contention to be raised in this Court for the first time, firstly because, the petitioner made an application for revision before the S. T. A which held amongst other things that action in the matter of shifting Bus stand was to be taken by the District Magistrate and the Regional Transport Authority might communicate its views on this subject to the District - Magistrate for proper action but the correctness of the decision was not disputed by the petitioner; on the contrary, the petitioner accepted the decision and surrendered to the iurisdiction of the District Magistrate and prayed repeatedly for time for giving it an opportunity of hearing on the question of propriety as to the shifting of Bus stand from its existing site. That being the position I fail to see how the petitioner can now challenge the jurisdiction of the District Magistrate to decide the question or take other steps for shifting the Bus Stand. The petitioner's remedy even if there was any is clearly barred by rule of estoppel Secondly, even assuming that the petitioner still could have raised the question of jurisdiction, it had even then sufficient opportunity of making any such representation before the District Magistrate who admittedly, according to the petitioner, was directed by the order of the S. T. A. to give it a hearing. The District Magistrate did give such opportunities to the petitioner repeatedly but it failed to avail itself of such opportunities and press this point before him, Having failed to avail itself of such opportunities the petitioner cannot be allowed to raise this question before this Court by invoking its Writ jurisdiction. After all a writ under Article 226 of the Constitution is a Writ of discretion and not of right and such discretion may not be exercised in favour of the petitioner who by its own default has allowed his remedy to be forfeited before the appropriate authority. In the above view of the matter it is suffcient to dispose of the present case but even then I will examine if there is any substance in the contention on merits.

6. Mr. Biswas relied on a decision of Madras High Court in T, B. Ebrahim v. Regional Transport Authority, : AIR1951Mad419 and argued that no power is conferred under Section 76 of the Motor Vehicles Act to shift the Bus Stand from the existing site. It is not necessary to construe Section 76 of the Act for the purpose of the present case. For Rule 101 of the Bengal Motor Vehicles Rules empowers the authorities mentioned there to shift a Bus stand from the existing site. It was, however, contended that Rule 101 confers no such power upon the District Magistrate to shift a Bus Stand from existing site. I cannot agree. Rule 101 (a) which is relevant for the present purpose is as follows:--

'101. Stands and halting places.-- (a) The District Magistrate or the Commissioner of Police, Calcutta, as the case may be, by notification in the Official Gazette or by the erection of traffic signs which are permitted for the purpose under subsection (i) of Section 75 of the Act, or both, may in respect of the taking up or setting down of passengers or both by public service vehicles or by any specified class of public service vehicles-

(i) conditionally or unconditionally prohibit the use of any specified place or any place of a specified nature or class, or

(ii) require that within the limits of any municipality, notified area or cantonment, or within such other limits as may be specified in the notification certain specified stands or halting places only shall be so used: Provided that no place which is privately owned shall be so notified except with the previous consent in writing of the owner thereof.'

On a true and proper construction of this Rule, I have no doubt, by Sub-clauses (i) and (ii) of the said Rule the District Magistrate is empowered to prohibit the use of any existing place as stand and require that certain other specified place in the notification that may be made be used as stand or halting places. The language used in these two sub-clauses is wide enough to cover both cases of closing the existing site and fixing another site as Bus stand or halting place. There is no ambiguity in the Rule which may lead to any other construction. On an interpretation of somewhat similar Rules, viz. Rule 268 the Madras Motor Vehicles' Rules, 1940, it was decided by the Supreme Court in another case of T. B. Ebrahim v. Regional Transport Authority, : [1953]4SCR290 (after the amendment of the Rule) that the Rule was validly framed pursuant to the power conferred both under Sections 68 (2) (r) and 68 (2) (za), of the Motor Vehicles Act. In my opinion, therefore, the District Magistrate was quite competent to pass an order for shifting of the Bus Stand from the existing site to another place as stated in the petition. Whether or not this place would be convenient to the general travelling public or the Bus Owners is a matter exclusively within the jurisdiction of the District Magistrate. Since this Court is not sitting as an appellate authority over the decision of the District Magistrate, such questions, which are again questions of fact, cannot be gone into or decided by this Court The petitioner did get opportunities but failed to make any representation before the District Magistrate. In my view, therefore, the impugned order or direction given by the District Magistrate must be sustained as valid.

7. Mr. Biswas, learned Advocate for the petitioner, also argued that no order shifting the Bus stand was, in fact, passed by the District Magistrate. But it would appear from Memo. No. 153 (5) J. M. dated 10-1-1904, marked as annexure 'G' to the petition, that such an order was made by the District Magistrate and necessary directives were issued to the authorities concerned. Therefore, I do not find any basis for the grievance of the petitioner even in this respect.

8. The result is that the petition fails. The Rule is discharged. There will be however, no order as to costs.


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