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Somendra Mohan Bhaduri and anr. Vs. Regional Transport Authority and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 195 of 1962
Judge
Reported inAIR1967Cal525
ActsMotor Vehicles Act, 1939 - Sections 48(3) and 133; ;Bengal Motor Vehicles Rules, 1940 - Rule 66A
AppellantSomendra Mohan Bhaduri and anr.
RespondentRegional Transport Authority and ors.
Appellant AdvocateA.K. Sen and ;Pritish Kumar Roy, Advs.
Respondent AdvocateN.C. Chakravarti and ;P.K. Banerjee, Advs.
DispositionAppeal allowed
Excerpt:
- .....a permit holder of stage-carriage no. wga 1572. between serampore and ballvkhal there are seven fare stages. the scale of fares as it stood privy to the impugned order is hereinbelow indicated-: '1st stage--serampore to maniktola--0-1-0 (7 np) 2nd stage--serampore to shankar cinema (khatir bazar)--0 1-6 (10 np). 3rd stage--serampore to banstolla--0-2-3 (14 np) 4th stage serampore to dewaldi co.'s gate konnagar 0-2-9 (17 np) 5th stage--serampore to shibtola (bhadrakali) 0-3-3 (20 np). 6th stage--serampore to ferryghat (uttar-para)--0-4-0 (24 np): 7th stage--serampore to ballykhal--0-4-0 (25 np). the fares are in old system of coinage, the equivalent amount in naye payse. now payse, is mentioned within brackets. 2. there was an agitation for reduction of the fare between serampore.....
Judgment:

Sinha, C.J.

1. The facts in this case are shortly as follows: In this case there are two appellants. Somendra Mohan Bhaduri and Darbara Singh They were both permit holders at stage-carriages plying on route No. 3 (Serampore-Ballykhal), within the jurisdiction of the Regional Transport Authority, Hooghly, and both are members of the Bus Association known as the 'Serampore-Ballvkhal Bus Association'. The appellant No. 1 was the permit holder of stage-carriage No. WGA 1903 and and the appellant No. 2 was a permit holder of stage-carriage No. WGA 1572. Between Serampore and Ballvkhal there are seven fare stages. The scale of fares as it stood privy to the impugned order is hereinbelow indicated-:

'1st stage--Serampore to Maniktola--0-1-0 (7 nP)

2nd stage--Serampore to Shankar Cinema (Khatir Bazar)--0 1-6 (10 nP).

3rd stage--Serampore to Banstolla--0-2-3 (14 nP)

4th stage Serampore to Dewaldi Co.'s Gate Konnagar 0-2-9 (17 nP)

5th stage--Serampore to Shibtola (Bhadrakali) 0-3-3 (20 nP).

6th stage--Serampore to Ferryghat (Uttar-para)--0-4-0 (24 nP):

7th stage--Serampore to Ballykhal--0-4-0 (25 nP).

The fares are in old system of coinage, the equivalent amount in naye payse. now payse, is mentioned within brackets.

2. There was an agitation for reduction of the fare between Serampore and Khatir Bazar, near Mahesh, on the said route, and an association styled as the 'Serampore Ratepayers' Association'' moved the RT.A., Hooghly, for a reduction of the fare On February 22nd 1956 the R. T. A. Hooghly, passed a resolution to the effect that the fare between Serampore and Khatir Bazar should be reduced to 1 as 9 p only Against the said resolution, the Serampore-Ballvkhal Bus Association of which the appellants are members, moved this Court and a Rule was issued, being Civil Rule No 1928 of 1956 (Cal). This Rule came up before me for hearing It was contended that the RTA. Hooghly, had no power or jurisdiction to fix or reduce the fare, such power being vested in the State Government, under the provisions of Section 43(1)(d)(ii) of the Motor Vehicles Act, 1939 (hereinafter referred to as the 'said Act'). It was further contended that Rule 66A of the Motor Vehicles Rules 1940 framed under the said Act, (hereinafter referred to as the ''said Rules') investing the Regional Transport Authority with power to fix a table of fares, was ultra vires, being unauthorised delegation of the power conferred on the State Government under Section 43(1) (d)(ii) of the said Act Both these contentions failed, but the Rule was made absolute on the ground that, at the time that the fare was revised (22-2-56). it was not the occasion of either granting or renewing the permit and when the time came for renewal, no such condition could be attached because there was an interim injunction against doing so. Hence, thechange of fares never became attached as a condition of the permit, even under Rule 66A. It was however made clear that the attaching of the condition was only prevented by an interim injunction and it could now be attached. During the pendency of the said Rule, the stage-carriage permit of the appellant No. 1 was renewed in August, 1956. and of the appellant No. 2 in May, 1958, for a period of three years in both cases. On the expiry of the said period, the permit granted to appellant No. 1 was renewed on September 8, 1959, for a period of five years, with the following endorsement:

'Renewed upto 28-8-64 on usual termsand conditions as per M.V. Act and Rules.'

On 19th August, 1959, the R.T.A., Hooghly, passed the following resolution:

'Resolved that the 'conditions' of permits for public carriers/private carriers/contract carriages/stage carriages as prepared by the Secretary, Regional Transport Authority, Hooghly, be approved and the said 'conditions' be attached to all the permits after giving notice of not less than one month.

Further resolved that in renewing or grant-big permits the above 'conditions' be attached to every permit.'

One of the conditions imposed by the resolution aforesaid was as follows:

'that fare is charged according to the fare table approved by the R.T.A. (H) from time to time under Section 66A of the M.V Rules.'

3. After the said resolution was passed, the said Secretary of the R.T.A. requested production of the permits from the permit holder,so that the conditions may be physically attached to the same. The appellants objected thereto and failing to get redress from the R.T.A. made an application to this Court under Article 226 of the Constitution. The learned Judge has relied on my decision in Civil Rule No. 1928 of 1956 (Cal) as mentioned above, and observed that in September, 1959, when the permit of the appellant No. 2 was renewed, Rule 66A was in existence, and therefore when the permit was renewed Rule 66A became automatically attached to the terms and conditions of the permit and hence the impugned resolution was in order and was in accordance with law In order to examine this proposition of law it will be necessary to consider certain provisions of the said Act and the Rules made thereunder.

4. Coming to the said Act, Section 43 gives power to the State Government to control road transport, inter alia by fixing of fares and rates of stage-carriages, etc In this particular case, the power has been exercised not by the State Government, but by the R.T.A

5. Next we come to Section 48, which relates to grants of stage-carriage permits by the R.T.A. Sub-section (1) lays down that the R.T.A may on an application to it, grant a stage carriage permit or refuse to make such a grant. The relevant provision is set out below:

'48(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 one or more of the following conditions, namely-

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

(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;'

Section 133 of the said Act gives power to the State Government to make rules. Such rules as have been promulgated are known as the Bengal Motor Vehicles Rules, 1940. The relevant rule is Rule 66A. It is in the following terms:--

'66A. Stage Carriage Fares to be charged. In granting or renewing a permit, the Regional Transport Authority shall attach to it the following conditions, namely:

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

6. The learned Judge in the Court below has held that when the stage-carriage permit of the appellant No. 2 came to be renewed this Rule was in existence and therefore, automatically became attached as a condition of the permit and therefore it was quite in order for the RTA to alter the table of fare which would then be binding on the permit-holder.

7. Mr. Sen has argued that at the time when the impugned resolution was passed, namely the 19th August, 1959, the permits of the appellants were neither being granted nor renewed and hence the fare fixed by it midway between a grant and renewal could not, be attached as a condition of the permit. I will now examine this point of view. With regard to the appellant No. 2, his permit was still valid when the impugned resolution was passed. So far as the appellant No. 1 is concerned, it came to be renewed on September 8, 1959. This was after the impugned resolution had been passed In other words, when the permit was being renewed, the resolution making new conditions applicable, upon notice of one month, was in existence and there was no injunction order preventing the attaching of the condition under Rule 66A as was the case in Civil Rule No. 1928 of 1956 (Cal). On the 5th October, 1959, the Secretary of the R.T.A., Hooghly gave notice to the Secretary, Serampore-Ballvkhal Bus Association, of which the appellants are members, that certain conditions will be attached as mentioned in the enclosure to the said letter, taking effect one month after the date of receipt of the notice. The conditions are set out in pages 30 to 34 of the paper book Let us therefore, see whether these conditions had been validly atlached to the permits given to the appellants. It appears to me that the cases of the two appellants are quite different in law and should not have been combined in one application at all. Let us first of all consider the case of the appellant No. 1. Under Section 48(3), the R.T.A. may at the time of granting the permit attach conditions, of which one is that fares shall be charged in accordance with the fare table (xii) as also that the R.T.A. may after giving notice of not less than one month, vary the conditions of the permit or attach to the permit further conditions (xxi). When the permit was originally granted to the appellant No. 1, there is nothing to show that either of these conditions were imposed as conditions of the permit. But on September 8. 1959, the permit was renewed upto 28-8-64 'on usual terms and conditions as per M.V. Act and Rules.'

8. What then are the 'usual terms and conditions'? So far as Section 48 of the said Act is concerned, under Sub-section (3), 'one or more' of the conditions mentioned therein may be made a part of the permit. It cannot, therefore, be said that any of these terms, by themselves, could be called 'usual' If the matter remained there, it might have been argued that Clause (xxi) of Sub-section (3) at Section 48 did not become a term of the permit. But in this case there are other facts to be considered. Before the removal was made in Sept., 1959, on 19th of August, 1959, the R. T. A., Hooghly, had passed a resolution that the conditions which had been drawn up by the Secretary were to be attached to all permits after giving notice of not less than one month. We understand that these terms and conditions as drawn up by the Secretary are to be found at pages 30 to 34 of the paper book. Clause (5) of these conditions, as drawn up by the Secretary (page 34 of the paper book) is a reproduction of Clause (xxi) of Sub-section (3) of Section 48. The position, therefore, is as follows: When the permit was originally issued, it did not contain a clause equivalent to Clause (xxi). Some time before the renewal of the permit, the R.T.A. resolved that the conditions approved by the Secretary should be attached to all permits--'after giving notice of not less than one month' That notice was given on 5th October, 1959, so that it was after a month from the receipt of the same that a clause equivalent to Clause (xxi) became incorporated in the permit. On the strength of this clause, the conditions could be altered after giving one month's notice There has however, been no such notice. The conditions were being sought to be altered by that very notice itself, given on the 5th October 1949 The position is that, before a notice can be given attaching a new condition to the permit, there must be a term in the permit whereby the R.T.A. would have the power to attach a new condition. If the resolution dated 19th August, 1959. was that a clause like Clause (xxi) would be straightaway attached to all permits then the renewed permit might be said to contain that condition,and the notice dated 5th October, 1969, would be all right But the resolution dated 19th August. 1959, is that, the conditions prepared by the Secretary would be attached to all permits--'after giving notice of not less than one month'. Therefore, at the time that the permit was renewed, a condition equivalent to Clause (xxi) could not be said to be a part of the permit, but only became so one month after receipt of the notice dated 5th October, 1959 Clause (5) of these terms stipulates that the conditions of the permit might be varied after notice of not less than one month. That notice could, therefore, only be given when the condition had become a part of the permit after one month of the receipt of no the dated 5th October, 1959. It could not be done earlier and by the same notice.

9. But while this is true of the rest of the conditions, there is some difference in respect of the condition as to change of fare. At the time that the renewal of the permit was made. Rule 66A was in existence, and the learned Judge in the court below was right in holding that the conditions mentioned in the Rule being a compulsory condition, automatically attached itself as a condition of the permit. That being so the change of fare prescribed by the condition would become valid and binding in terms of the notice, namely from a period after the expiry of one month from the receipt of notice dated 5th October, 1959. The provision as to change of fare is to be found in Clause (xxi) (a) whereby the fare from Serampore to Khatir Bazar was reduced to Re /1/9

10. The result is that, so far as the appellant No. 1 is concerned, the condition as to the change of fare was binding, but not the other conditions

11. With regard to the appellant No. 2, his permit was renewed in May, 1958, for a period of three years, that is to say upto May, 1961. The conditions of his permit, not containing a clause equivalent to Clause (xxi), the same could not be varied midway between the granting of the permit and the renewal. Therefore, the resolution dated 19th of August, 1959, or the notice dated the 5th October, 1959. were ineffective in attaching such a condition, which could only be attached at the time of granting the permit or renewing it. The same position would exist as regards the application of Rule 66A. The condition mentioned therein would attach itself to a permit when it is granted or renewed Therefore, so far as this permit is concerned, none of the altered conditions including change of fare ever become a term of the permit.

12. I will now examine another argument that has been put forward by Mr. Sen. He has argued that the conditions that were sought to be attached to the permit as is stated to have been drawn up by the Secretary of the R.T.A are peculiar. In affect, they make the terms of the entirety of the said Act and the said Rules made thereunder, to be the termsand conditions of the permit. Mr. Sen has argued that this is not in accordance with law. He points out that under Section 60 of the said Act, if there is a breach of any condition of the permit, the permit may be cancelled The various provisions of the said Act and the Rules, on the other hand, have laid down other penalties for their violation For example, violation of Section 112 of the said Act may be punishable with fine. If therefore, the whole of the said Act is made a condition of the permit then there is at once a conflict. On the one hand, the punishment is fine, but on the other hand, cancellation. In my opinion, the waking of the whole of the Act and Rules as terms and conditions of a permit, apart from being inartistic, was not at all intended by the framers of the Act and the Rules. The provisions of the Act and the Rules are there and are a complete code in themselves They lay down the law as also the remedies for a violation of it. It was never intended that the whole of the Act and the Rules should be made conditions of a permit However, it is not necessary to deal further with this matter, as I have already held that so far as appellant No. 1 is concerned only the term as to fares could be said to have been validly attached to his permit, and so far as appellant No. 2 is concerned, no new conditions at all could be said be have been validly attached to his permit. Under the circumstances, it is not necessary to make any further findings with regard to the conditions, other than the fares As have stated above, condition as to fares became attached to the renewed permit of the appellant No. 1 by virtue of Rule 66A.

13. Lastly, we come to a general objection that has been put forward by the respondent. It is pointed out that the permits of both the appellants had now ceased to be operative and that no order should be made upon this application, which had become infructuous. The Rule was issued on 20th of January, 1960. As mentioned above, on that date, both the permits namely that of the appellant No. 1 (renewed) and that of the appellant No 2 (original) were in existence and were valid. Therefore, the application when made cannot be said to have been misconceived. During the pendent of the Rule both the permits have come to an end. For that reason, however, it will not be proper in my opinion, to refuse to express our opinion on the points raised In fact, it would assist the authorities in dealing with subsequent renewals in accordance with taw.

14. The order would, therefore, be is follows: The appeal is allowed and the order of the Court below is set aside The rule is made absolute and it is held that so far as the renewed permit of appellant No. 1 was con earned, it was subject to the alteration of fares as decided by the R T A, but it was not validly made subject to other terms and conditions as attached to the letter of the Secretary, R.T.A. Hooghly, dated 5th October, 1959 With regard to the permit issued to the appellant No. 2, none of the altered terms and conditions includingthat of the change of fore become attached to it as a term or condition of the permit.

15. Since both the permits are now terminated, the R.T.A. shall deal with any application for new permits or renewal of the old permits in accordance with law keeping in mind our present decision. All interim orders vacated. There will be no order is to costs

Arun K. Mukherjea, J.

16. I agree.


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