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Judgment
Ruma Pal, J.—This appeal has been preferred from an order allowing a writ application filed by the Respondent Bus Association. By allowing the writ petition the Appellants have been stopped from plying along a particular route.
The route in question, is from Howrah Railway Station to Dankuni. Previously the members of the Appellants had been permitted to ply along routes No. 51/56. To ply on this route buses had to traverse the Vivekananda Bridge. The Vivekananda Bridge has been closed to traffic for re-construction purposes. As their business was disrupted by such closure, the Appellants made a representation to the Secretary, Transport Department. A joint meeting was held on November 21, 1995. At that meeting two shorter routes were decided to be assigned to the Appellants. One of the routes is the impugned route from Howrah Station to Dankuni. It partially overlaps the route along which the members of the Respondent Nos. 1 to 4 are plying.
The proposed alignment was sent to the Secretary of the RTA''s Hooghly and Howrah seeking their no objection. Both the RTA''s consented to the proposed alignment as a temporary measure because of the closure of the Vivekananda Bridge. It was this action of the two RTA''s which was the subject matter of challenge in the writ filed by the Respondent Nos. 1 to 4.
In defence of the action of the RTA''s it had been argued by the present Appellants as well as the State Authorities before the Learned Single Judge that the route was not a new route but only an extension of an existing route. The Learned Single Judge found that the alignment was not a variation or extension of an existing route but creation of a new route. The Learned Single Judge held that the RTA''s did not have the power to create a new route. Only the State Government could. As there had been no formulation of the route u/s 68(3)(ca) of the Motor Vehicles Act, 1988 (referred to as the Act), by the State Government, the Learned Judge was of the view that the members of the Appellants were not entitled to ply their vehicles along that alignment. The writ application was accordingly allowed.
In this appeal a stay petition was filed by the Appellants. The submission was that by reason of the passing of the order under appeal the Appellants'' business had been, virtually stifled, A prayer was made by the Appellants for leave to amend the memo of appeal by introducing fresh grounds of appeal and in particular the ground that the Respondents Nos. 1 to 4 being rivals in the business of transport did not have any locus standi to file the writ application. Leave was granted to amend the memorandum of appeal without prejudice to the objections of the Respondent Nos. 1 to 4. The amendments were accordingly carried out. The parties agreed that the appeal itself could be disposed of on the basis of the papers filed before this Court. Apart from the arguments advanced, the parties have also filed written notes of argument.
Counsel for the Appellants conceded that he could not quarrel with that part of the judgment under appeal which held that the route in question was a new route; But, it was submitted that on the basis of the decision in the The Nagar Rice and Flour Mills and Others Vs. N. Teekappa Gowda and Bros. and Others, Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, , Mithilesh Garg, Vs. Union of India and others etc. etc., , Mani Subrat Jain and Others Vs. State of Haryana and Others, the Respondents Nos. 1 to 4 did not have the locus standi to file the writ application challenging the grant of permit to the members of the Appellants to ply their vehicles along this new route.
The Appellants also contended that the finding of the Learned Single Judge that the route had not been formulated by the State Government before the Appellants vehicles were permitted to ply along that route was incorrect. It is said that Section 68(3)(ca) had no application to the facts of the present case and did not curtail the RTA''s powers u/s 103 of the West Bengal Motor Vehicles Act, 1989 (referred to as the. Rules) it is said that Section 68(3)(ca) had been read by the Learned Single Judge in a manner which would render Section 80(1) of the Act ineffective and would also frustrate the object of the Act. The decision in Quilon Dist. Private Bus Operators Association and Others Vs. State of Kerala and Others, has been cited in this. context. It was submitted that the route had already been formulated in the sense that vehicles had already been allowed to ply from one terminus to another covering the new route. It was not required to formulate a portion of a route as a new route since it was not different from the main route. Reliance was placed in this connection on the case of Nilkanth Prasad and Others Vs. State of Bihar, and CPC C.P.C. Motor Service, Mysore Vs. The State of Mysore and Another,
Finally it is submitted that the arrangement was purely a stop gap measure. The RTA''s power to grant permit was not in dispute. It was only the manner in which permission had been granted, which had been questioned by the Respondents Nos. 1 to 4 and that the circumstances of this case did not warrant interference of this Court under Article 226. Reliance has been placed in the case of Rajendra Singh Vs. State of Madhya Pradesh and others, Abhay Kumar Vs. Chairman, Samyukt Kshetriya Gramin Bank and Others, and Tata Cellular Vs. Union of India,
The State Authorities have supported the Appellants.
The Respondents Nos. 1 to 4 have contended that the Appellants were not new entrants as they had a permanent route and therefore the principle of Mithtlesh Garg (Supra) and the other cases cited by the Appellants on the question of locus standi had no application. Secondly, it is submitted that there was no challenge to the grant of a permit in the writ petition but to the violation ef the existing permit in favour of the appellants. These Respondents sought to draw a distinction between a pre-permit complaint and a post-permit complaint. While a rival in the business had no right to ventilates any grievance regarding the first if could do so regarding the second.
It is submitted that the question of locus standi was a mixed question of law and fact and should have been taken at the threshold. Reliance has been placed on Clive Lewis''s Judicial Remedies in Public Law and the decision of Mukunda Sana v. Golden Polyester Industries (P) Ltd. 1979 (1) C.L.J. 258 in this context. It has also been submitted that the Appellants should not be permitted to make out a new case. Several decisions have been cited by the Respondents in support of their submission. These are considered subsequently.
On the merits it is submitted that Section 68(3)(ca) clearly laid down that the power to create a route was in the State Government. The route in this case had not been formulated by the State Government at all and as such there was no scope for the RTA''s to permit the Appellant members to ply along that route.
Three issues arise for determination:
(i) Whether the Appellants should be permitted to raise a question of locus standi at this stage ?
(2) If so, whether the writ petition could have been filed by the Respondents 1 to 4?
(3) If so, whether the permit could have been granted in respect of the route in question in the manner it was ?
Re.: Issue-1
The principles generally followed by Courts in deciding whether to permit a new plea to be raised in appeal is to see whether by allowing the point to be raised at this stage grave and substantial injustice would be caused to the other side. Town Area Committee, Jalalabad Vs. Jagdish Prasad and Others, Such grave and substantial injustice would occur if it would in effect deny the other side an opportunity of meeting the case fairly [Ibid]. A case which would run contrary to the stand taken in the lower Court cannot also be permitted to be raised for the first time in appeal Vinod Kumar Arora Vs. Surjit Kaur, particularly when the questions raised pertain to mixed questions of fact and law or where the new plea would be contrary to any statute [Ibid].
These principles are also discernible in the provisions of Order 41 Rule 2 of the Code of Civil Procedure. It provides that the Appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule: provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had sufficient opportunity of contesting the case on that ground.
All the conditions have been fulfilled by the Appellants in this case. They have obtained the leave of the Court to urge the point of locus standi. They have taken the precaution of including the ground in the memorandum of appeal. See A.G. Fiji v. J.P. Bayly Ltd. AIR 1950 P.C. 73 : 54 C.W.N. 435. Had the Appellants sought to raise a point without amending their pleadings, the Court might have refused to entertain such a plea as the submissions would have been beyond the pleadings. This was the case in M. Ramasamy Pillai (dead) by LRs. Vs. The Hazarath Syed Shah Mian Sakkaf Khadiri Thaikal, The Respondents Nos. 1 to 4 have also been given every opportunity of contesting the case on that ground. It cannot also be said that an inconsistent plea has been introduced by the Appellants by way of amendment. Nor can it be said that the point involved a mixed question of law and fact. The submission that the writ Petitioners did not have the locus standi has been made on the facts admitted in the writ petition. There is no dispute that the Respondents 1 to 4 are transport operators whose route overlaps the route in question. On the basis of this admitted fact, the question of locus standi is a pure question of law. As such there would be nothing improper in considering the plea of the Appellant based on the Defendant''s own admission. There is no question of surprise or any injustice resulting to the Respondents Nos. 1 to 4 by admitting such a plea. The Respondents 1 to 4 have been given the opportunity to meet the case. The issue was in fact extensively argued. See Srinivas Ram Kumar Vs. Mahabir Prasad and Others,
The decision in Smt. Naseem Bano Vs. State of U.P. and others, cited by the Respondents Nos. 1 to 4 is not relevant. In that case a statement had been made in the petition laying the factual basis in support of the Petitioner''s grievance. This had not been controverter by the State Authorities. The Supreme Court held that the High Court should have proceeded on the basis that the averments had been admitted by the Respondents. In other words the facts were to be taken as established. The case has no application to the question to be decided.
For the reasons stated I would answer the first issue in the affirmative and in favour of the Appellant.
Re.: Issue No. 2.
The question of locus standi will have to be determined with reference to the Act and the Rules framed there under. If the Act and the Rules do not confer any substantive justiciable right on existing operators of a route to object to the creation of a route, then they have no legal right which can be said to have been subjected to or threatened with injury as a result of the grant of the permit in favour of a third person. Merely because a person''s business is likely to be adversely affected will not give such person the locus standi to challenge under Article 226 unless such contravention infringes a vested right vide Rice & Floor Mills Ltd. v. N.T. Gowda (Supra). See also J.M, Desai v. Roshan Kumar { Supra) M.S. Jain v. State of Haryana (Supra).
Relying on this principle the Supreme Court in the decision of Mithilesh Garg v. Union of India (Supra) examined the provisions of the Motor Vehicles Act, 1988 and came to the conclusion that there was no threat of any kind whatsoever from any authority to enjoyment of any right of existing stage carriage operators to carry on their occupation of transport operators if new operators come into the field as competitors. It was therefore said that the existing stage carriage operators had no locus standi to invoke the special jurisdiction of Article 226 of the Constitution of India to raise the issue.
The decisions cited by the Respondents Nos. 1 to 4 do not hold to the contrary. In the case of Howrab Bus Syndicate v. RTA Howrah 1996 (1) C.L.J. 397 the question of locus standi though raised, was not decided. The Division Bench of the Kerala High Court in Secretary CTRBT Co-operative Society Limited v. Mathew Job and Ors. AIR 1993 Ker 191 in fact followed the decision of Mithilesh Garg (Supra) in holding that the existing operators had no right to object to the grant of permit to another operator. To the extent that the Learned Single Judge of the Kerala High Court has held differently in Divakaram v. Dy. Director of Fisheries AIR 1995 Ker 9 it must be held to be no longer good law. The facts in the case of Mala Roy v. Sushii Kumar Mitruka 1995 (1) C.L.J. 301 show that the case did not relate to the right of an existing operator to challenge a grant of permit to another but the right of an applicant for a permit to be added as a party to an appeal preferred by another such applicant for the same route. The case is therefore distinguishable on facts. The paragraph relied upon in Sant Carrier Owners'' Union v. Port of Calcutta 1989 (2) C.L.J. 201: relates to public interest litigation and the locus standi of members of the public to maintain a petition. The case has no application. Besides, the Respondents Nos. 1 to 4 themselves stated that this was not a case of public interest litigation as the public at large were not concerned with ''internal affairs relating to the terms and conditions of the permit''. Several other decisions relating to the scope of public interest litigation which were cited are not necessary to be looked into.
Finally the unreported decision of a learned Single Judge in Syed Mofazzaul Hussain and Ors. v. State of West Bengal (C.R. No. 2629 (W) of 1980 : Judgment dated June 27, 1985) did not consider the question of locus standi as enunciated in the case of Rice & Flour Mills Ltd. v. N.T. Gowda (Supra) and cannot be held to be an authority for the proposition that merely because a business interest is affected a writ petition can be filed by such a businessman complaining of an infringement of the law.
In the case before us the complaint in the writ petition was that the route in question was a new one and that the Appellants had been illegally permitted to ply on that route. The complaint was upheld by the Single Judge. The present complaint that the Appellants were given the new route in violation of the permits already granted to the Appellants relates only to the method of grant of the permit to ply along a new route. The issue raised thus clearly falls within the embargo envisaged in Mithilesh Garg (Supra). The distinction sought to be drawn between post permit and pire-permits complaints is in the circumstances specious and is rejected.
In view of this and the clear enunciation of the law there can be no manner of doubt that the writ application was not maintainable at the instance of the Respondents Nos. 1 to 4.
I would therefore answer the second issue in the negative.
Issue No. 3
Since arguments were advanced in respect of this issue it is necessary to determine this aspect assuming the first two issues were decided against the Appellants.
A route has been defined in the Act as ''a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another'' [Section 2(38)]. In other words in a route (1) the highway must be specified; (2) the termini must be fixed and (3) the motor vehicle must be permitted to ply between the termini along such specified highway.
A ''permit'' means a permit issued by the State or Regional Transport Authority Section 2(31)] but the questions are, who specifies the highway and fixes the termini ? Is it a distinct process to be done by a separate authority or is it part of the process for grant of permit ?
Chapter V. of the Act contains provisions relating to the Control of Transport vehicles. This Chapter includes Sections 66 to 96 of the Act. Section 67 provides for the power of the State Government to control road transport by issuing directions to the State Transport Authority (STA for short) or the Regional Transport Authority (RTA for short) in respect of certain specified matters. These do not include the determination of a route. Section 68 also allows the State Government to constitute the STA and RTA to discharge the powers and functions conferred by or under Chapter V. on them. The powers and functions conferred on the STA have been specified in Section 68(3). Prior to 1994 these were:
(a) to co-ordinate and regulate the activities and policies of the Regional Transport Authorities, if any, of the State ;
(b) to perform the duties of a Regional Transport Authority where there is no such Authority and, if it thinks fit or if so required by a Regional Transport Authority, to perform those duties in respect of any route common to two or more regions ;
(c) to settle all disputes and decide all matters on which differences of opinion arise between Regional Transport Authorities ; and (d) to discharge such other functions as may be prescribed.
With effect from November 14, 1994 Clause (ca) was added between Clauses (c) and (d). The clause reads -(ca) Government to formulate routes for plying stage carriages; and 28. Coming as it does in the Sub-section dealing with the STA''s powers and functions the meaning of Clause (ca) is incomprehensible.
To avoid ignoring the clause, a permissible interpretation of the word ''government'' in Clause (ca) might be ''the Authorities who are created by the Government''. This would be in keeping with the leading provision viz. Section 68(3) and also with the other provisions of the Act which lay down the procedure for grant of permits. By the Transport Authorities viz. Section 69, 70, 71, 72 et seq. No provision in the Act or the West Bengal Motor Vehicles Rules, 1989 (hereinafter referred to as the Rules) has been pointed out by the Respondents which lays down the procedure whereby a route or routes are formulated.
Furthermore, to say that the State Government must formulate routes before an application for permit can be made would necessitate the publication of such list so that the transporters may be aware of the same, and until a list is so made here would be no question of any transporter applying to ply on a particular highway. In my view this would infringe on the right of a transporter u/s 80(1) to apply for a permit at any time and run contrary to the policy of liberalisation sought to be introduced by the Act.
It is noteworthy that the Counsel for the State could not produce any list of routes formulated by the State Government before this Court.
To avoid such confusion or friction, in my opinion, the formulation of a route must be seen as part of the process for grant of the permit.
Whether a vehicle should be allowed to ply along a. particular highway from one point to another having regard to congestion, traffic conditions, passenger demand etc. would be within the jurisdiction of the Transport Authorities.
This view is also supported by Rule 103 which deals with inter-regional routes. It provides ;
Before deciding to grant permit on any route or in any area which falls within the jurisdiction of two regions the Regional. Transport Authorities concerned shall meet at a joint conference and decide the issue. In case there is no unanimity, the matter shall be referred to the Commissioner of the Division if they fall within the same Division and in all such cases, the decision of the Commissioner shall not final. In all other cases, the matter shall be referred to the State Transport Authority and the decision of the State Transport Authority shall be final.
The power to decide the ''issue'' would indicate the inclusion of the right to specify the highway and the termini and therefore formulate the route.
A Learned Single Judge of the Kerala High Court in Quilon District Private Bus Operators Association v. State (Supra) construed, Clause (ca) of Section 68(3) as qualifying Section 68(3) which deals with the settlement of disputes between RTA''s by the STA.
Thus whichever may one sees it the formulation of the route falls with the powers and functions of the Transport Authorities.
There is also substance in the submission of the Appellants that a route once formulated does not require formulation of the intermediate stages. Such intermediate stages are not different routes but part of the main route. The decision in Nilkanth Prasad v. State of Bihar (Supra) and CPC Motor Service v. State of Mysore (Supra) would appear to support this proposition.
In this case the new route was discussed at a meeting between the Secretary, Transport Department and the two RTA''s on November 21, 1995. Consequent to that the proposal was submitted by the Route Committee to the RTA, Howrah with a copy to the State Government. The proposal was forwarded by the RTA Howrah to the RTA Hooghly ''for concurrence/decision''. This was approved by RTA, Hooghly because of the closure of Vivekananda Bridge. Thus all the authorities were not only involved in the matter but also approved the measure.
In the circumstances the insistence on the separate ''formulation'' of, a route by the State Government as a precondition to the grant of permit was not called for. It must be emphasised that the arrangement decided upon by the authorities is a temporary one pending the re-opening of the Vivekananda Bridge.
Having regard to the totality of the circumstances and particularly having regard to the absence of any established bias or mala fides and in any event the violation, if any, in the procedure for grant of permit was not one. which called for interference under Article 226 Vide Rajendra Singh v. State of M.P..
Accordingly I answer this issue in the affirmative and in favour of the Appellants.
For these reasons the appeal is allowed and the order under appeal is set aside. There will be no order as to costs.
Devendra Kumar Jain, J.
I agree.