Govinda Ch. Shil vs State Of Tripura And Ors

S. Talapatra, J

[1] Heard Mr. T. D. Majumder, leanred counsel appearing for the petitioner as well as Mr. D. Bhattacharjee, learned G.A. appearing for the respondents.

[2] By means of this petition, the petitioner has urged this court to quash the Rule 68(d) of the Tripura Motor Vehicles Rules, 1991 as notified under Notification F.5(12)/TRANS/2018 dated 15.10.2018 (Annexure-2 to the writ petition) for being ultra vires to the constitutional provisions of Article 19(g) read with Article 14. It has been urged by means of this writ petition to direct the respondents to issue transport permits to the petitioners.

[3] Mr. Majumder, learned counsel appearing for the petitioner has submitted that the petitioner has surrendered five auto-rickshaws bearing registrations No.TRT-0948, TRT-1640, TR01-2020, TR01-2529 and TR01A-3138 for replacement. Surrender of those vehicles by the petitioner is acknowledged by the Notification dated 28.02.2019 (Annexure-1 to the writ petition) issued by the Joint Transport Commissioner, Government of Tripura, Agartala. Since, such replacement was not allowed or the petitioner was not communicated any decision of the Joint Transport Commissioner in respect of the replacement, the petitioner had served a notice on 09.08.2019 (Annexure-3 to the writ petition) asking the respondents to recall their decision to allow one person one auto-rickshaw permit and to allow him get the replacement of all the auto-rickshaws.

[4] Mr. Majumder, learned counsel appearing for the petitioner has further submitted that under Section 83 of the Motor Vehicles Act, 1988, the respondent is bound to consider the replacement. Section 83 of the said Act provides that the holder of a permit may with the permission of the authority by which the permit was granted, replace any vehicle covered by the permit by any other vehicle of the same nature.

[5] Mr. Majumder, learned counsel has quite succinctly submitted that after the notification acknowledging the fact relating to surrender of the vehicles for replacement, no communication was made to the petitioner. However, in the reply filed by the respondent on 06.01.2019 in para-5, it has been asserted that the State Transport Authority as constituted under Section 68 of the Motor Vehicle Act, 1988 finding difficulty to issue permit to the un-employed youths under various social development schemes sponsored by the State Corporation. Having noticed that a good number of owners, who earlier purchased the auto-rickshaw, were forced to sell their auto-rickshaws to meet their ends, a change in the policy has been brought about to provide employment to the unemployed youths. It has been observed thereafter in the same paragraph as follows:

"A survey has been conducted by the Transport Department to identify the persons owned multiple Auto Rickshaw route permits and found that 531 persons are the owner of 1104 Auto Rickshaw route permits. Which means 531 owners of Auto-Rickshaw engulfed 573 number employments opportunity by the way of owning multiple Auto Rickshaw route permits."

[6] According to respondents, by incorporation of Rule 68(d) of the Motor Vehicles Act, 1988 restriction has been imposed on purchasing of multiple auto rickshaws, on obtaining the route permits and not on other categories of vehicles. This rule does not impose any bane on sale of the auto rickshaws obtained under various social development schemes. But implies a restriction on sale. Those owners are bound to sell their auto rickshaws to the unemployed having valid license to drive the auto rickshaw, but not owning an auto rickshaw

[7] According to the respondents, the rich people have plenty of opportunities for expanding their business. But in this sector, there should be some regulation in respect of their monopolistic activities. Thus finally, the respondents have stated that incorporation of Rule 68(d) of the Motor Vehicles Act, 1988 is justified and as such the challenge must fall through.

[8] Mr. Majumder, learned counsel has further submitted that the rule making power flows from Section 96 of the Motor Vehicle Act, 1988. To regulate in the manner as has been provided under Rule 68(d) of the Tripura Motor Vehicles Rules, 1991 is not covered expressly by the power so conferred to make rules. Mr. Majumder, learned counsel has read Section 96 (2) (xxxiii) to demonstrate before this court that no authority has been granted to the state government to make such rule of regulation. Mr. Majumder, learned counsel has made reference to Section 66 of the Motor Vehicles Act, 1988 to assert before us that without permit, no vehicle can be taken to any public place whether or not any vehicle has carried passengers or goods or not. That apart, under Section 74 of the Motor Vehicle Act, 1988, a permit is granted to contract carriage. Section 74 of the Motor Vehicle Act, 1988 provides that subject to provision of Section 74(3), a Regional Transport Authority may, on an application made to it under Section 73, grant a contract carriage permit in accordance with rules 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 area, not specified in the application.

[9] Needles to say that grant of such permit is subject to, however, any rules made under the Motor Vehicles Act, 1988. It has been also submitted by Mr. Majumder, learned counsel that Section 74 (3) of the Motor Vehicles Act, 1988 has also provided that the state government, if so directed by the Central Government, having regard to the number of vehicles, road conditions and other relevant matters, by notification in the official Gazette, direct a State Transport Authority and a Regional Transport Authority to limit the number of contract carriages, generally or of any specified type, as may be fixed and specified in the notification, operating on the city routes in towns with a population of not less than five lakhs.

[10] It has also been also provided that where the number of contract carriages fixed under Clause (a) as cited above, the Regional Transport Authority shall, in considering an application may grant permit in respect of such contract carriage having regard to certain matters including the financial stability of the applicant, satisfactory performance as a contract carriage operator including payment of tax and other matters as prescribed by the state government.

[11] According to Mr. Majumder, learned counsel none of these provisions has given any authority to the state government to restrict the number of Form-18 route permits on the basis of the route permits as have already been given to a person. According to him, this Rule 68(d) of the Tripura Motor Vehicles Rules, 1991, is ultra vires to the constitution of India vis-à-vis Article 19(g) of the Constitution of India. Above all, such power is not available to the state government.

[12] Mr. Majumder, learned counsel has referred to a communication of the Joint Transport Commissioner to show us that the similar view has been expressed by the Law Department of the Government of Tripura, however, in the said communication dated 09.09.2018 (Annexure-R2 to the reply filed by the respondents), it has been clearly stated that as per Tripura Motor Vehicles (7th amendment) Rules, 2018 dated 15.10.2018, the government has decided that one route permit would be issued to the auto rickshaw owner/driver and an Auto Rickshaw driver/owner will not get more than one permit. The said decision does not meet with the provision for suspension or cancellation of redundant Auto Rickshaw permits under Section 86 of the Motor Vehicle Act, 1988.

[13] According to Mr. Majumder, learned counsel a clinical reading of the impugned provision would clearly show that at the back of their so called action, the respondents have plan to cancel or suspend the permit by denying conversion or replacement of vehicles as provided under Section 83 of the said Motor Vehicles Act.

[14] At this juncture, Mr. D. Bhattacharjee, learned G.A has made a clear statement that there is no record to contend that any decision has been taken by the competent authority in the State Transport Authority in respect of Section 83 of the Motor Vehicles Act and hence, this writ petition is pre-mature and filed merely on apprehension. That apart, Mr. Bhattacharjee, learned GA has submitted that the powers granted to the State Government to frame the befitting rules for purpose of chapter V of the Motor Vehicles Act in respect of the control and grant of permit of the vehicle, Section 80 of the said Act has given wide power to the Regional Transport Authority or the State Transport Authority. For purpose of reference Section 80, as a whole, is reproduced hereunder:

"80. Procedure in applying for and granting permits.-(1) An application for a permit of any kind may be made at any time.

(2) A [Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of section 66] shall not ordinarily refuse to grant an application for permit of any kind made at any time under this Act:

Provided that the [Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of section 66] may summarily refuse the application if the grant of any permit in accordance with the application would have the effect of increasing the number of stage carriages as fixed and specified in a notification in the Official Gazette under clause (a) of sub-section (3) of section 71 or of contract carriages as fixed and specified in a notification in the Official Gazette under clause (a) of sub-section (3) of section 74:

Provided further that where a [Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of section 66] refuses an application for the grant of a permit of any kind under this Act, it shall give to the applicant in writing its reasons for the refusal of the same and an opportunity of being heard in the matter.

(3) An application to vary the conditions of any permit, other than a temporary permit, by the inclusion of a new route or routes or a new area or by altering the route or routes or area covered by it, or in the case of a stage carriage permit by increasing the number of trips above the specified maximum or by the variation, extension or curtailment of the route or routes or the area specified in the permit shall be treated as an application for the grant of a new permit:

Provided that it shall not be necessary so to treat an application made by the holder of stage carriage permit who provides the only service on any route to increase the frequency of the service so provided without any increase in the number of vehicles:

Provided further that,

(i) in the case of variation, the termini shall not be altered and the distance covered by the variation shall not exceed twenty-four kilometres;

(ii) in the case of extension, the distance covered by extension shall not exceed twenty-four kilometres from the termini, and any such variation or extension within such limits shall be made only after the transport authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so varied or extended or any part thereof.

(4) A [Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of section 66] may, before such date as may be specified by it in this behalf, replace any permit granted by it before the said date by a fresh permit conforming to the provisions of section 72 or section 74 or section 76 or section 79, as the case may be, and the fresh permit shall be valid for the same route or routes or the same area for which the replaced permit was valid:

Provided that no condition other than a condition which was already attached to the replaced permit or which could have been attached thereto under the law in force when that permit was granted shall be attached to the fresh permit except with the consent in writing of the holder of the permit. (5) Notwithstanding anything contained in section 81, a permit issued under the provisions of sub-section (4) shall be effective without renewal for the remainder of the period during which the replaced permit would have been so effective."

[15] Our attention is particularly drawn to the proviso to Section 80 of the said Act whereby it has been provided that the Regional Transport Authority, State Transport Authority or any prescribed authority referred to (1) of Section 66 may summarily refuse the application if the grant of any permit in accordance with the application would have the effect of increasing of the number of contract carriages expressed and specified in the notification [in the official gazette[ under Clause (a) (3) of Section 71 or in respect of contract carriages as specified in the notification [in the official gazette] or in terms of the Clause (a) of Sub-section (3) of Section 74 of the said Act.

[16] The second proviso below sub-Section 2 of Section 80 of the Motor Vehicles Act further postulates that where a Regional Transport Authority, State Transport Authority or any prescribed authority referred to sub section (1) of Section 66 refuses an application for grant of permit of any kind under this Act, he shall give to the applicant, in writing, its reasons for refusal of the same afford and opportunity of being heard in this matter.

[17] Mr. Bhattacharjee, learned GA has therefore submitted for purpose of implementing this part of the Act (vide Section 80 of the Motor Vehicle Act), the State government can acquire competence under Section 96(2)(xxxiii) of the Motor Vehicle Act, 1988. Therefore, the state inheres jurisdiction to frame the rule in the form of Rule 68(d) of the Tripura Motor Vehicles Rules, 1991. However, Mr. Bhattacharjee, learned GA has submitted that the court may permit the respondents to take the decision in accordance with the law in respect of replacement as prayed by the petitioner and other similarly situated persons. Since, no such decision has been taken, it cannot be assumed that Rule 68 (d) of the Tripura Motor Vehicle Rules, 1991 has been given effect to.

[18] In view of the above statement and reserving the right in favour of the petitioner to challenge the said Rule 68(d) of the Tripura Motor Vehicle Rules,1991 in future, this writ petition is being disposed of by the following direction. The respondents, particularly the State Transport Authority shall consider the prayer of the petitioner made under Section 80, Motor Vehicles Act, 1988. While taking such decision, the respondents shall consider that Rule 68 (d) of the Motor Vehicles Act, as incorporated by way of amending the principal Act, has not been given any retrospective operation and the petitioner has the right under Section 83 to get the replacement subject to the permission of the State Transport Authority. In GT Venkataswamy Reddy vs. State Transport Authority and others reported in (2016) 8 SCC 402, the apex court had occasion to observe in respect of the similar challenge as under:

"Once things get frozen, the frozen stage can be changed only by way of a permitted process. when by virtue of of the Act, the permit stood frozen, as on the date the scheme was published, then, if the said frozen stage is to be altered or modified, the provision by which such modification or alteration can be effected can be only by applying which is the legally permissible manner in which such frozen stage can be altered or modified. Any other manner in which the said frozen stage is sought to be altered or modified, that is totally prohibited under the statutory provisions. Therefore, if under the scheme, if the permit gets frozen, within the prescriptions contained under the scheme and if a variation is to be considered for that permit either by way of increase in the number of trips or addition of vehicle without any modification or alteration effected .. it will be wholly prohibited under the provisions ... such variation applied for can never even be considered by any of the authorities. That will be the consequential effect of the referred section in GT Venkataswamy Reddy." [Emphasis added]

[19] What we have observed that in view of giving effect to Rule 68(d) of the Tripura Motor Vehicle Rules, no express transitional provisions have been provided in the said rules. But we will not make further observations in view of the direction as narrated.

Having observed thus and without any observation on the merit of the challenge, the respondents are directed to consider the application of the petitioner for replacement within 30(thirty) days from the day when a copy of this order would be made available to the respondents. It is needless to say if the petitioner is aggrieved by any action of the respondents, he will be at liberty to approach this court again. Even he would be allowed to challenge constitutionality and legality of Section 68(d) of the Tripura Motor Vehicles Rules, 1991, if that is found essential in the changed circumstances.

In terms of the above, this writ petition stands allowed to the extent as indicated above.

There shall be no order as to costs.

A copy of this order be supplied to Mr. D. Bhattacharjee, learned GA appearing for the respondents.