High Court · 2012

02. We have heard Mr. A Sharma, learned counsel for the petitioners and Mr. U Rajbongshi, learned Standing Counsel, State Transport Department, Assa m for the respondents.

03. In absence of any counter by the State respondents, the unrefute d pleaded facts to be essentially noted, are that the petitioners have approache d this Court with the above challenge in a representative capacity espousing the cause of all categories of public service and commercial vehicles owners in the State, who, as projected by them, are carrying on the business of operating var ious types of public service vehicles after obtaining necessary permits from the Regional Transport Authority as well as the State Transport Authority. Referenc e has been made of the various provisions of the Motor Vehicles Act, 1988 (for s hort hereafter referred to as the Act), the Central Motor Vehicles Rules, 1989 ( for short hereafter also referred to as the 1989 Rules) as well as the provision s of the Rules. According to the petitioners, the Assam State Transport Corporat ion (hereinafter referred to as the Corporation), a statutory body, in consultat ion with the Government of Assam had formulated a scheme, titled (cid:28)Self Employmen t Scheme of ASTC 2001 (cid:29) for its revival, whereunder, private bus owners were allo wed to operate their own buses on its routes on payment of registration fee, sec urity money and certain percentage of fare collected by them. They alleged that the Government of Assam in the process of sponsoring the said scheme since 2001 started exerting pressure on the private vehicle owners to participate in it. It also, according to the petitioners, resorted to repressive measures against tho se vehicle owners who refused to co-operate by declining to register their vehic les and issue new permits and renewals thereof, though due. Necessary instructio ns were also issued to the different authorities to ensure greater participation in the scheme by resorting to these initiatives. As a result, the authorities c oncerned stopped registering the new vehicles therefor. The impugned WT Massages followed, whereby, the issuance/renewal of permits of various types of private transport vehicles was kept in abeyance. This challenge was laid thereafter, as, in the face of the stalemate that followed, its members were seriously prejudic ed for no fault of theirs, some of them having purchased new vehicles on securin g heavy financial loans and faced, amongst others with the imminent detrimental legal consequences. The petitioners have alleged as well, that at the relevant p oint time, the Managing Director of the Corporation being also the Joint Secreta ry to the Govt. of Assam, Transport Department, he cast his influence as well in issuing contract carriage and state carriage permits in favour of those who con ceded to run their vehicles under the banner of the ASTC, thus meting out hostil e discrimination to other vehicle owners similarly placed. In this backdrop, the embargo on the issuance and renewal of the permits vide the impugned WT Message s have been impeached as arbitrary, unfair and unconstitutional being violative of Article 19 of the Constitution of India. The validity of Rule 45 of the Rules has also been questioned.

04. Mr. Sharma has urged with reference to Rule 45 (2) (c) (d) and ( e) as well as Rule 45 (4) of the Rules that these provisions are obviously beyon d the rule making power conferred by section 96 of the Act and are, thus liable to be adjudged non est in law. The learned counsel impeached the validity of Rul e 45 (2) (c) (d) and (e) also on the ground of being inconsistent with the manda te contained in section 69 of the Act. He argued further that Rule 45 (4) is pat ently repugnant to section 88 (9) of the Act. Additionally, the first proviso th ereof leaving it to the discretion of the State Transport Authority to restrict the number of permit for the tourist vehicles contemplated therein for the self- employed driver or the educated unemployed flies in the face of section 71 (3) ( a) of the Act and is, thus void. Referring to the decision of the Hon’ble Apex C ourt in Mithilesh Garg Vs. Union of India & Ors., 1992 AIR SCW 41, Mr. Sharma ur ged that the decision to suspend the issuance and/or renewal of the permits vehi cles vide the impugned WT Messages and that too without affording any opportunit y of hearing to the persons affected is patently arbitrary, unfair, discriminato ry and indefensible in law.

05. The learned Standing Counsel, Transport Department, submitted on instructions that not only the decision of keeping abeyance the issuance and re newal of permits as envisaged in the WT Messages is valid, having regard to the overall scheme of the Act and the Rules, it being an initiative to promote and s ustain a statutory corporation, the challenge thereto is misconceived. He dismis sed the impugnment of Rule 45 of the Rules to be fallacious. According to him, t he State respondents had never intended any contravention of the Act and the Rul es and the impugned decision contained in the WT Messages was in public interest . We have examined the pleaded averments and the documents on reco 06. rd. We have also analysed the arguments advanced. Whereas, section 96 of the Act empowers the State Government to make Rules for the purpose of carrying into ef fect the provisions of Chapter V dealing with control of transport vehicles, sub -section (2) thereof, enumerates in specific terms, the matters, on which, witho ut prejudice to the generality of such conferment, the Rules may be made. Truly, in none of the clauses listed under sub section (2) there is any reference to a procedure for issuance of permit by the State Transport Authority as contemplat ed in Rule 45 (2) (c) (d) and (e) or 45 (4) of the Rules. Such absence of refere nce, however, in our considered opinion, in the face of the generality of the ru le making power and the comprehended expanse and amplitude thereof conferred by section 96 (1) of the Act, does not either denude the State Government of its au thority to provide for the eventualities as visualized in Rule 45 (2) (c) (d) an d (e) and 45 (4) of the Rules or render the same constitutionally invalid. That the list of matters under section 96 (2) is not exhaustive is obvious from Claus e (xxii) thereof. Section 68 of the Act identifies the transport authorities, name 07. ly, the State Transport Authority to exercise and discharge the powers and perfo rm the functions specified in sub-section 3 thereof and also Regional Transport Authorities to exercise powers and perform the functions as provided by the stat ute in respect of region to be notified. Section 68 (3) enjoins that the State T ransport Authority and every Regional Transport Authority would give effect to a ny direction issued under section 67 and State Transport Authority, in particula r, subject thereto and except, as otherwise provided by or under the Act, exerci se and discharge throughout the State, the powers and functions, amongst others, if it thinks fit, of a Regional Transport Authority in respect of any route com mon to two or more regions. In terms of section 68 (4), a State Transport Author ity may, subject to such condition as may be prescribed, issue any direction to any Regional Transport Authority and the latter in discharge of its functions wo uld give effect thereto and be guided thereby. That the State Transport Authorit y and any Regional Transport Authority, may delegate its powers and functions is also provided for to the extent as indicated in section 68 (5).

08. Section 69, which deals with the procedure to apply for all perm its postulates that every such application shall be made to the Regional Transpo rt Authority of the region in which it is proposed to use the vehicle or vehicle s. The 2nd proviso requires the making of such application to the Regional Trans port Authority of the region in which the applicant resides, has his principal p lace of business, if the route proposed is lying in two or more regions located in different States. Under section 69 (2), the State Government, may by notifica tion in the Official Gazette direct that in case any vehicle or vehicles is prop osed to be used in two or more regions lying in different States, the applicatio n has to be made to the State Transport Authority of the region, in which the ap plicant resides or has his principal place of business.

09. On a combined reading of sections 68 and 69, it would, thus, be apparent that the role of the State Transport Authority vis-a-vis the domain of duties and functions of any Regional Transport Authority is neither debarred nor wholly excluded. Moreover, section 69 deals only with the manner of submission of application for permit and do not limit the Regional Transport Authority to b e the only entity to grant the same. In that view of the matter, in our deductio n, the empowerment of the State Transport Authority to issue permit as provided for in Rule 45 (2) (c) (d) and (e) of the Rules cannot be impeached to be in con travention of section 69 of the Act.

10. Section 88 of the Act, which deals with the aspect of validation of permits for use of vehicles outside the region for which the same had been g ranted, in sub-section 9 thereof, reserves the power of any transport authority to grant permits for the purpose of promoting tourism in respect of tourist vehi cles valid for the whole of India or in such contiguous States not being less th an three in number including the State in which the permit is issued, subject to the conditions as enumerated therein. This provision, in our estimate, is, thus a complete answer to the assailment of Rule 45 (4) of the Rules. Not only, the discretion left with the State Transport Authority to restrict the number of per mits of such vehicles and to reserve certain percentage thereof for self-employe d driver or the educated unemployed, in the context of the purpose envisaged in section 88 (9), per se cannot be repudiated as illegal, discriminatory and uncon stitutional. There is nothing on record to overwhelmingly establish non-complian ce of section 71 (3) (a) of the Act.

11. It is more than apparent on the face of the record that the temp orary suspension of the issuance and renewal of the permits as referred to in th e impugned WT Messages had been to espouse the cause of a statutory Corporation in terms of a Government approved scheme for its long felt revival in public int erest in general. As admitted by the petitioners, the underlying purpose of keep ing in abeyance the issuance and renewal of permits to certain categories of veh icles had been to ensure their participation in the scheme. No other extraneous consideration is discernible to trace the same to the impugned decision. Having regard to the objective of the scheme and the initiatives concomitant thereto, t o actualize the same, the temporary suspension of the issuance and renewal of ce rtain categories of vehicles cannot, ipso facto be adjudged to be arbitrary, unr easonable, unfair and unconstitutional. Noticeably, however, the operation of these WT Messages had been kept in abeyanc e for nearly a decade without any demur on the intervention of this Court though , indicating absence of any necessity of such restriction as on date. In that vi ew of the matter, on a totality of consideration of all above, we are inclined t o interfere with these WT Messages for their future operation from this date. Or dered accordingly. We, however, make it clear that the State respondents are lef t at liberty, inspite of this determination, in the singular facts of the case, to take appropriate steps as would be deemed necessary by them in public interes t, inter alia for the control of transport vehicles as provided by the Act, 1989 Rules as well as the Rules. In the above perspective, any dilation of the conte xtual facts in Mithilesh Garg Vs. Union of India & Ors. (Supra), is not consider ed necessary. In any view of the matter, this decision negated the challenge to the provisions of the Act liberalizing the grant of permits which was perceived to be in violation to the rights of pre-existing operators under Article 19 (1) (g) of the Constitution of India. In the result, the petition is partially allowed. The challenge to the impugned provisions of the Rules fails. The WT Messages assailed are interfered with pros pectively. No costs.