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Federation of Bus Syndicate and ors. Vs. the State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKolkata High Court
Decided On
Case NumberC.R. No. 3342(W) of 1971
Judge
Reported inAIR1973Cal389
ActsMotor Vehicles Act, 1939 - Sections 43, 48 and 48(3); ;Motor Vehicles Rules - Rule 66A
AppellantFederation of Bus Syndicate and ors.
RespondentThe State of West Bengal and ors.
Appellant AdvocateR.C. Dev and ;Bhagabati Prosad Banerjee, Advs.
Respondent AdvocateSushil Kumar Banerjee, Adv.
DispositionApplication dismissed
Cases ReferredAmarnath Section Nanda v. State Transport Authority. The Bombay High Court
Excerpt:
- .....of private stage carriages. it is stated that under section 43 of the motor vehicles act the state government is the sole authority to issue the directions regarding the fixation of fares for the stage carriages. it is stated that under section 43(3)(xii) of the act the regional transport authority has been given power to attach to the stage carriage permit a condition with regard to fare that shall be charged in accordance with the approved fare table. it is alleged that the state government has not yet issued any direction with regard to the fixing of fares for the stage carriages in accordance with the provisions of section 43 of the said act and as such the regional transport authority has illegally purported to fix a fare table for the carriage of the passengers on ad hoc.....
Judgment:
ORDER

Banerjee, J.

1. In this Rule the petitioners challenge the jurisdiction of the Regional Transport Authority to fix the fares for stage carriages. The petitioner No. 1 is a registered association of Private Stage Carriages. It is stated that under Section 43 of the Motor Vehicles Act the State Government is the sole authority to issue the directions regarding the fixation of fares for the stage carriages. It is stated that under Section 43(3)(xii) of the Act the Regional Transport Authority has been given power to attach to the stage carriage permit a condition with regard to fare that shall be charged in accordance with the approved fare table. It is alleged that the State Government has not yet issued any direction with regard to the fixing of fares for the stage carriages in accordance with the provisions of Section 43 of the said Act and as such the Regional Transport Authority has illegally purported to fix a fare table for the carriage of the passengers on ad hoc basis. The petitioners submitted that the Regional Transport Authority has no jurisdiction to fix the fare table as a condition of permit unless the fare is fixed by the State Government under Section 43 of the Act.

2. On behalf of the respondent it is stated that the R. T. A. has the power and jurisdiction to fix the fare as is provided in Section 48(3) read with Rule 66-A of the Rules. Before dealing with the points raised T set out herein the relevant provisions, namely. Sections 43 and 48 and Rule 66-A of the Motor Vehicles Rules.

Section 43. '(1) A State Government, having regard to-

(a) the advantages offered to the public trade and industry by the development of motor transport, and

(b) the desirability of coordinating road and rail transport, and

(c) the desirability of preventing the deterioration of the road system, and

(d) the desirability of preventing uneconomic competition among motor vehicles,

may, from time to time, by notification in the official gazette issue directions to the Slate Transport Authority

(i) regarding the fixing of fares and freights for stage carriages, contract carriages and public carriers;

(ii) regarding the prohibition or restriction, subject to such conditions as may be specified in the directions, of the conveying of long distance goods traffic generally, or of specified classes of goods, by private or public carriers;

(iii) regarding the grant of permits for alternative routes or areas to persons in whose cases the existing permits are cancelled or the terms thereof are modified in exercise of the powers conferred by Clause (b) or Clause (c) of Sub-section (2) of Section 68-F;

(iv) regarding any other matter which may appear to the State Government necessary or expedient for giving effect to any agreement entered into with the Central Government or any other State Government or the Government of any other country relating to the regulation of motor transport generally, and in particular to its co-ordination with other means of transport and the conveying of long distance goods traffic :

Provided that no such notification shall be issued unless a draft of the proposed directions is published in the official gazette specifying therein a date being not less than one month after such publication, on or after which the draft will be taken into consideration and any objection or suggestion which may be received has, in consultation with the State Transport Authority, been considered after giving the representatives of the interests affected an opportunity of being heard.

(2) The State Government shall permit, at such intervals of time as it may fix, the interests affected by any notification issued under Sub-section (1) to make representations urging the cancellation or variation of the notification on the following grounds, namely,

(a) that the railways are not giving reasonable facilities or are taking unfair advantage of the action of the State Government under this section; or

(b) that conditions have changed since the publication of the notification; or

(c) that the special needs of a particular industry or locality require to be considered afresh.

(3) If the State Government after considering any representation made to it under Sub-section (2) and having heard the representatives of the interests affected and the State Transport Authority is satisfied that any notification issued under Sub-section (1) ought to be cancelled or varied, it may cancel the notification or vary it in such manner as it thinks fit.'

Section 48. '(1) Subject to the provisions of Section 47, a Regional Transport Authority may, on an application made to it under Section 46, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit:

Provided that no such permit shall be granted in respect of any route or area not specified in the application.

(2) Every stage carriage permit shall be expressed to be valid only for a specified route or routes or for a specified area.

(3) The Regional Transport Authority, if it decides to grant a stage carriage permit,may grant the permit for a service of stage carriages of a specified description or for one or more particular stage carriages, and may, subject to any rules that may be made under this Act, attach to the permit any one or more of the fallowing conditions, namely,

(i) that the service or any specified part thereof shall be commenced with effect from a specified date;

(ii) the minimum and maximum number of daily services to be maintained in relation to any route or area generally or on specified days and occasions;

(iii) that copies of the time-table of the service or of particular stage carriages approved by the Regional Transport Authority shall be exhibited on the vehicles and at specified stands and halts on the route or within the area;

(iv) that the service shall be operated within such margins of deviation from the approved time-table as the Regional Transport Authority may from time to time specify;

(v) that within municipal limits and such other areas and places as may be prescribed, passengers or goods shall not be taken up or set down except at specified points;

(vi) the maximum number of passengers and the maximum weight of luggage that may be carried on any specified vehicle or on any vehicle of specified type, either generally or on specified occasions or at specified times and seasons;

(vii) the weight and nature of passengers' luggage that shall be carried free of charge, the total weight of luggage that may be carried in relation to each passenger, and the arrangements that shall be made for the carriage of luggage without causing inconvenience to passengers;

(viii) the rate of charge that may be levied for passengers' luggage in excess of the free allowance;

(ix) that vehicles of specified types fitted with bodies conforming to approved specifications shall be used :

Provided that the attachment of this condition to a permit shall not prevent the continued use, for a period of two years from the date of publication of the approved specifications, of any vehicle operating on that date;

(x) that specified standards of comfort and cleanliness shall be maintained in the vehicles;

(xi) the conditions subject to which goods may be carried in any stage carriage in addition to or to the exclusion of passengers;

(xii) that fares shall be charged in accordance with the approved fare-table;

(xiii) that a copy of, or extract from, the fare-table approved by the Regional Transport Authority and particulars of any special fares or rates of fares so approved for particular occasions shall be exhibited on every stage carriage and at specified stands and halts;

(xiv) that tickets bearing specified particulars shall be issued to passengers and shall show the fares actually charged and that records of tickets issued shall be kept in a specified manner;

(xv) that mails shall be carried on any of the vehicles authorised by the permit subject to such conditions (including conditions as to the time in which mails are to be carried and the charges which may be levied) as may be specified;

(xvi) the reserve of vehicles to be kept by the holder of the permit to maintain the service and to provide for special occasions;

(xvii) the conditions subject to which any vehicle covered by the permit may be used as a contract carriage;

(xviii) that specified arrangements shall be made for the housing, maintenance and repair of vehicles;

(xix) that any specified bus station or shelter maintained by Government or a local authority shall be used and that any specified rent or fee shall be paid for such use;

(xx) that the conditions of the permit shall not be departed from save with the approval of the Regional Transport Authority;

(xxi) that the Regional Transport Authority may, after giving notice of not less than one month,

(a) vary the conditions of the permit;

(b) attach to the permit further conditions;

(xxii) that the holder of a permit shall furnish to the Regional Transport Authority such periodical returns, statistics, and other information as the State Government may from time to time prescribe;

(xxiii) any conditions which may be prescribed.'

Rule 66-A Stage Carriages -- Fares to be charged. In granting or renewing a permit, the Regional Transport Authority shall attach to it the following condition, namely:--

'that the fares to be charged shall be in accordance with the table of fares which may, from time to time, be prescribed by the Regional Transport Authority.'

Mr. Deb on behalf of the petitioners contended that under Section 43 of the Motor Vehicles Act the State Government may from time to time issue directions regarding the fares for the stage carriage. Mr. Dev relied upon the case reported in : AIR1968Mad236 , N. Sathianathan v. Secy. Regional Transport Authority, Salem and argued that as in the present case there is no direction by the State Government under Section 43 any condition regarding the fare cannot be attached to the permit.

3. The fare tables of the stage carriage in and around the city of Calcutta, in which the petitioners are interested, have long been fixed by the R. T. A. and the said fare-tables are attached to the condition of permit. It appears that the petitioners themselves have applied to the Regional Transport Authorityfor the increase in the fares in view of the increase in the running costs of the buses, stage carriages in and around Calcutta for the implementation of the minimum wages in respect of the employees and they are of the opinion that the fares should be increased. These fare-tables which have already been attached as a condition of permit were effective for quite a long time. In that view of the matter the petitioners cannot BOW challenge that the R. T. A. cannot fix the fares of stage-carriage.

4. On merits also, in my opinion, Mr. Deb's contention cannot be upheld. If under Section 43 no direction is given by the State Government, the Regional Transport Authority has power to fix the fare in accordance with Section 48 read with Rule 66-A of the Motor Vehicles Rules. In order to obtain a permit the petitioner applicant must apply to the Regional Transport Authority under the prescribed form being P. St. P. A. In applying for the permit the applicant is to propose the standard rate of fares which is to be charged for the stage-carriage. Under Item No. 9 the permit must be issued in the form being P. St. S. In item No. 7 of the form, it is stated that the maximum and minimum fees if fixed under Section 43 of the Act, is to be stated, and in Item No. 11 it has been specifically stated that the fare-table is to be exhibited and in Item No. 10, this permit is subject to condition attached to the permit and under Rule 66-A, the fare to be charged and the approved fare-table is to be exhibited as the conditions in respect of all permits. Now reading Section 48 in my opinion, it gives power to the Regional Transport Authority to fix the fare and make it a condition of permit. Under Section 43 the State Government has a power to issue direction for fixing the fare of stage-carriage and while issuing the direction it may fix the fares from time to time; but in absence of any direction under Section 43, the Regional Transport Authority under Section 48 can fix fare of stage-carriage by making it a condition of permit under Section 48. The view that I take is supported by the observation of Mr. Justice Sinha reported in : AIR1955Cal59 , Radha Gobinda Paul v. Regional Transport Authority decided on 2nd of March, 1954. His Lordship (who) was considering the power of the Regional Transport Authority to fix the fare of stage-carriage under unamended Motor Vehicles Act before 1956, held as follows in paragraph 5:

'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 Vehicles Act whereby power has been given to the Regional Trans-port 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 has given 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 (iv). But it is said that the rules prescribed 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 enables 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 amending the Act granting to it the power to fix the rates of fares in respect of Stage Carriages or such apower 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.'

Since then, the Motor Vehicles Act has been amended but the observation of Mr. Justice Sinha applies on all fours after the amendment also in view of the introduction of Rule 66-A and the another Section 48 of the Act. The only difference is that in Section 48 there is now a specific provision which gives the R. T. A. power to attach condition of permit which will be binding on the permit holder. In so tar as the power of fixation of fare is concerned it appears that since the said decision, the State Government framed rules for the purpose under Rule 66-A, the R. T. A. has been given specifically power to fix fare of the stage carriages. It must further be stated that the same view has been taken by the Bombay High Court in the case reported in : AIR1962Bom124 , Amarnath Section Nanda v. State Transport Authority. The Bombay High Court held that in absence of any direction under Section 43 by the State Government, the Regional Transport Authority has a power to fix the fare or vary the condition as to fares of a stage carriage permit. It is clear that in the matter of grant of permit, the Regional Transport Authority has the jurisdiction. The application is to be made to the Regional Transport Authority. The applicant must state his term regarding the fare if the stage carriage is allowed to be plied and that question will have to be decided for the purpose of grant of permit by the Regional Transport Authority. Under Section 48 ofi the Act the Regional Transport Authority has a power to fix the rate of fares approved by the R. T. A. as a condition of the permit. It stands to no reason to hold that though the R. T. A. is to consider the application for a permit the question of fare must be left to the State Government for consideration. Mr. Deb argued that Section 48(3)(xii) gives the power to the Regional Transport Authority to approve the fare-table. Therefore, the R. T. A. cannot fix the fare. It can only approve it and the fixation part must be left to the State Government under Section 43 of the Act. The R. T. A. is only to see whether the offer made by the applicant for a permit is in accordance with the rate fixed by the State Govt. If it is found that it is so, the R.T. A. may approve it. In my opinion, the contention is not correct. The form of the permit makes it clear that the fare (if any) fixed by the State Government will have to be stated in the permit. Mr. Deb, however, argued on the basis of the decision of the Madras High Court reported in : AIR1968Mad236 . There is no doubt that the case supports Mr. Deb's contention. With due respect of the Hon'ble Judges of the Madras High Court, I find it difficult to agree with it. In my opinion, Section 48 read with Rule 66-A gives the power to R. T. A. to fix the fare, and attachit as a condition of permit. If however, there is a direction under Section 43 of the Act, then of course the R. T. A have to follow the same and will have to make them a condition of a permit, otherwise, the Reginal Transport Authority, in my opinion, has a power to fix the rate of fares.

5. In the circumstances, therefore, this application must fail and the rule is hereby discharged.

6.There will be no order as to costs.


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