Bajoy Krishana Bhattacharjee and Others vs The Regional Transport Authority, Calcutta and Others

Sinha, J.—The facts in this case are shortly as follows:-- Till about the middle of the year 1952 there were in Calcutta, about 1,200 taxi cabs of not less than 22 Horse Power and not above 30 Horse Power. These are hereinafter referred to as "Big taxies". In that year the State Government of West Bengal decided to put on the streets of Calcutta, smaller taxi cabs with lower tariff rates, and accordingly in May, 1952 the R.T.A. Calcutta Region invited applications for issue of permits in respect of motor vehicles not below 10 horse Power and not above 19 horse Power, with tariff rates fixed at annas -|8|-for the first mile or part thereof and annas -|2|- for every quarter of each subsequent mile, which was considerably lower than the tariff which was being charged for the big taxies. It is alleged in the petition that the Government wished to make this change with a view to solve partially the unemployment problem of middle class families of West Bengal. This however is not admitted. The Calcutta Taxi Association and the Bengal Taxi Association, whose members are big taxi owners, vehemently opposed the introduction of small taxi cabs, hereinafter referred to as ''Baby taxis'' apprehending that the introduction of Baby taxis with lower tariff rates would put them out of business. In the first instance objection was raised before the R.T.A. Calcutta Region, but the same was over-ruled. Thereafter, certain members of the said associations, who were permit-holders in respect of big taxis, moved this Court under Article 226 of the Constitution, on or about the 24th October, 1952 for the issue of appropriate writs etc. directing the R.T.A. Calcutta Region and the State of West Bengal, to forbear from giving effect to the Notification No. 5518 W.T. dated the 7th June, 1952. The said Rule came up for hearing before Bose, J., who by his judgment, dated the 9th January, 1953, discharged the Rule. The petitioners in the said application preferred an appeal to the Supreme Court. On the 24th November, 1953, the appeal was dismissed by the Supreme Court and the judgment of Bose, J. was upheld, save and except that their Lordships of the Supreme Court did not agree with the view of Bose, J., that it was not open to the big taxi owners to charge fares at lower rates than that described in Rule 179 of the Bengal Motor Vehicles Rules. The next step taken by the Calcutta Taxi Association was to reduce their tariff rates in respect of big taxis from the existing rates, to annas -|8|- for the first mile or part thereof and annas -|2|- for every quarter of each subsequent mile. The Bengal Taxi Association however reduced their tariff to annas -|12|- for the first mile or part thereof and annas -|2|-for every one fifth part of each sub-sequent mile. The R.T.A. Calcutta Region was of the opinion that this lack of uniformity in tariff rates would cause inconvenience to the general public and by order, dated the 30th December. 1952 fixed an uniform tariff rate for big taxis at annas -|12|-for the first mile or part thereof and annas -|2|- for every one fifth part of each subsequent mile. The existing tariff rates of baby taxis was not disturbed. Against this decision, the Calcutta Taxi Association preferred an appeal before the Appellate Sub-Committee of the S.T.A. In this appeal the other parties were not represented The S.T.A. allowed the appeal and reduced the tariff rates not only of big taxis but also of baby taxis. Thereupon, owner of baby taxis made several applications to this Court under Article 226 of the Constitution. In. C.R. Nos. 1890, and 1925 of 1954, I was able to effect a compromise between the parties and the reduction to tariff rates so far as baby taxis were concerned, was set aside. The next position is that big taxis have reduced their tariff rates but are still charging more than the baby taxis. We now come directly to the circumstances which have given rise to this application. It appears that some of the owners of big taxis desired to replace their larger vehicles by baby taxis. They have made the requisite application to the R.T.A. Calcutta Region and some of these applications have been granted and others are likely to be granted in the near future. It is stated in the petition that being foiled of their attempt to put the baby taxis off the road, the owners of the big taxis have now formulated a plan to replace their big taxis by baby taxis which will necessarily give rise to a keen competition in which case the original object of the introduction of baby taxis, namely the supporting of middle class families of West Bengal, would stand frustrated. I have already mentioned above that it is not admitted that the baby taxis were introduced with that object. In fact, an affidavit has been filed on behalf of the R.T.A. Calcutta Region, (Respondent No. 2) affirmed by its Secretary Kalyan Bhusan Chakravarti on the 22nd July, 1955, in which it is not admitted that there exists any ground for apprehension that there will not be two kinds of taxi cabs on the road or that the interests of the owners of the small taxi cabs will be vitally affected by such replacements or that there would be an unhealthy and unfair competition. It is stated that the present policy of the R.T.A. was to grant replacement tempered with selection. On the 23rd April, 1955, the Secretary of the Calcutta Small Taxi Association, which is an association in respect of baby taxis, wrote to the Secretary, R.T.A. Calcutta Region protesting against the replacement of big taxis by baby taxis, and pointed out that under the provisions of the Motor Vehicles Act (Section 59, Sub-Section 2) replacement of a particular vehicle can only be done as per terms of a particular permit, and the replacement by a vehicle of different type and capacity infringes the terms of a permit. It is further stated that such replacement should not have been ordered ex parte and a request was made to stop further replacement. On the 17th May, 1955, a reply was sent to this letter wherein it was stated that under Rule 81(a) of the Motor Vehicles Rules 1940 the R.T.A. could vary the permit or any of the conditions thereof.

This Rule was issued by Bose. J., on the 22nd June 1955, calling upon the opposite parties to show cause why a writ in the nature of Mandamus should not issue to them directing them to forbear from permitting replacements of big taxi cabs by small taxi cabs and also to withdraw the orders of replacements already issued and or why a writ in the nature of Prohibition should not issue prohibiting the opposite parties from permitting such replacements or why such further or other orders or orders should not be made as to this Court may seem fit and proper. Ad interim injunction was also granted as prayed. I might mention here that the Calcutta Taxi Association and the Bengal Taxi Association have not been made party respondents but it was directed that copies of the Rule will be served upon them. They have now entered appearance and are opposing this application.

The argument of Mr. Choudhury appearing on behalf of the petitioner is as follows :-- He has pointed out Sections 49, 50, 57 (1), 57 (6) and 59 (2) and 64 of the Motor Vehicles Act and Rule 81 (a) of the Motor Vehicles Rules. He has argued that u/s 49 an application for a permit in respect of a contract carriage relates to a particular motor vehicle and the permit granted is in respect of a particular motor vehicle. He argues that if it is a question of primary application for such a permit, then the provisions of section 50 had to be complied with. In such a case, some kind of notice must issue to all the parties interested, that is to say, the parties who have been given the right under that section to make representations, to enable them to make such representations and that an original permit can only be granted after hearing such representations. The next point is that u/s 59(2) a replacement of an existing motor vehicle can be permitted only if the vehicle in question is replaced by another vehicle of the same nature and capacity. According to Mr. Choudhury, this provision impliedly forbids the grant of replacement by a motor vehicle of a different nature and capacity. If the present grant is a grant of an original permit, Mr. Choudhury argues that the procedure laid down u/s 50 had not been complied with. On the other hand, if it is a replacement, then Mr. Choudhury argues, it is a replacement which is not authorised by Section 59 (2). He points out that the only excuse shown by the R.T.A. for issuing the permits is Rule 81 (a) namely, that it was open to the R.T.A. at its discretion to vary the permit or any of the conditions thereof. Mr. Choudhury points cut that replacement of a vehicle by another of a different capacity is not varying the permit but changing the permit to another kind. He argues that the power to vary the permit or any condition thereof was not meant to contravene the provision of Section 59 (2). If it was meant to contravene Sec. 59(2), the Rule will be had as being ultra vires of the Statute, since Rules made u/s 68 were only for the purpose of carrying into effect the provisions of Chapter IV of the Motor Vehicles Act, and not to make provisions inconsistent therewith.

The learned Advocate General appearing on behalf of the Respondents No. 1, 2 & 3 has argued that the R.T.A. have not taken up the position that the matter was covered by Rule 81 (a) but had merely pointed out that if there was any variation in the permit as alleged by the petitioners, such a variation was authorised by Rule 81 (a). He argues that the authority of the R.T.A. to permit replacements of the kind contemplated in this case is based on Rules 75 and 76 of the Motor Vehicles Rules. While adopting his argument, Mr. Das Gupta appearing on behalf of the Calcutta Taxi Association has taken a further point, namely, that an appeal lay under the Act by virtue of Section 54, to the S.T.A. and thereafter to the appellate Tribunal, and as such, an application under Article 226 does not lie. Mr. Bose appearing on behalf of the Bengal Taxi Association has adopted both these arguments.

I think the very short point in this application is as to whether the R.T.A. has the power to allow replacement in the case of permit relating to contract carriages, by substitution of vehicle to which the original permit related, by a vehicle of a different capacity. It is not argued that it is permissible to allow such a replacement by a vehicle of different nature, which would transfer the permit in respect of a contract carriage to a permit, of a different nature altogether, e.g. a public carrier permit in respect of a state carriage etc. Mr. Choudhury argues that the problem is answered by recourse to section 59(2) which permits such a replacement only where the substitute vehicle is of the same capacity, and that the replacement by a vehicle of a different capacity was contrary to the provisions thereof. He necessarily follows this up by arguing that Rules 75 and 76 of the Motor Vehicles Rules, in so far as they allow such a replacement by a vehicle of a different capacity, are inconsistent with the provisions of the Statute and therefore ultra vires. I shall therefore proceed to examine the position of the Act and the Rules. It is conceded that we are concerned in this application with the ease of a contract carriage and no other. Section 43 lays down as to the contents of an application for a con-tract carriage permit. One of the essential ingredients that are to be set out in the application is the type and seating capacity of the vehicle. Section 50 is important and may be set out below.

"50. Procedure of Regional Transport Authority in considering application for contract carriage permit :-- A Regional Transport Authority shall, in deciding whether to grant or refuse a contract carriage permit, have regard to the extent to which additional contract carriages may be necessary of desirable in the public interest; and shall also take into consideration any representations which may then be made or which may previously have been made by persons already holding contract carriage permits in the region or by any local authority or police authority in the region to the effect that the number of contract carriages for which permits have already been granted is sufficient for or in excess of the needs of the region or any area within the region."

The point that has arisen in respect of section 50 and which I am surprised to find is a question of first impression is as to whether in a case of a contract carriage, a notice has to be given to any of the persons upon, whom a right to make representation has been granted under that section. The learned Advocate General has argued that no such notice is required to be given. He pointed out that u/s 59 an application for a contract carriage permit may be made at any time. Whereas in the case of an application for a stage carriage permit or a public carrier permit, provisions have been made for publication of the application or substance thereof and a time limit has been fixed for the making of application and the procedure to be adopted for hearing the representations has been laid down. Section 57 (6) runs as follows :

"57 (6). When any representation has been made by the person or authorities referred to in section 50 to the effect that the number of contract carriages for which permits have already been granted in any region or any area within a region is sufficient for or in excess of the needs of the region or of such area, the Regional Transport Authority may take any such steps as it considers appropriate for the hearing of the representation in the presence of any persons likely to be affected thereby."

It is quite true that in the case of representation in respect of the grant of a contract carriage permit, no express provision has been laid down for giving notice. It seems to me however that the giving of some kind of notice is implied. Section 50 says that the R.T.A. must take into consideration any representation "which may then be made or which may previously have been made....". With regard to previous representations, one can understand that there may be on record some kind of general protest irrespective of whether a particular application has been made or not, but when it speaks about a representation "which may then be made" it is contemplated that the interested parties should have been made aware of the making of an application for the grant of a new permit. I cannot persuade myself to think that while in the case of stage carriages or public carriers, notices: should be given to interested parties, a permit in the case of a contract carriage can be given without the interested parties being at all aware of the making of such an application, unless of course such knowledge is derived by accident or by some inscrutable process not mentioned in the act. The method by which such notice should be given is a matter which ought to be the subject matter of Rules framed under the Motor Vehicles Act. Since there are no such rules at present, I should think that any rational method of giving notice would be sufficient, for example, by publishing it in the Notice Board of the R.T.A. I am told that the usual method is by advertisement. Section 51 gives to the R.T.A. the power to restrict the number of contract carriages and impose conditions on contract carriage permit. It can limit the number of contract carriages generally or contract carriages of any specified type. The relevant provisions of Section 57 have already been noticed above. u/s 57 (6) there is a duty to hear the representations made u/s 50. So far as section 59 (2) is concerned, there can be no doubt that the contemplated replacement in the present case does not fall within its ambit. Since the learned Advocate General has taken his stand on Rules 75 and 76 of the Motor Vehicles Rules, it is necessary to examine the nature and scope of the Rules made u/s 68 of the Act. u/s 68, the State Government has been given the power to make rules for the purpose of carrying into effect the provisions of Chapter IV of the Motor Vehicles Act. That Chapter is headed ''Control of Transport Vehicles''. With regard to the nature and purport of rules framed under powers conferred by the Motor Vehicles Act, reference may be made to a Supreme Court decision, T.B. Ibrahim v. The Regional Transport Authority Tanjore (1) (1953) S.C.A. 277. This case deals with the Madras Motor Vehicles Rules 1940 framed under the Motor Vehicles Act. Ghulam Hasan. J., said as follows:--

"The material portion of Section 68 may be set out here:--

(1) A Provincial Government may make rules for the purpose of carrying into the effect the provisions of this Chapter.... It is obvious from a plain reading of Sub-Section (1) that the Government has got the full power to make rules, for purpose of carrying into effect the provisions contained in Chapter IV relating to the control of transport vehicles.... It is significant to note that the Act does not follow the ordinary mode of providing at the end of the Act float the Government is empowered to make rules for the purpose of carrying into effect the provision of this Act but at the end of each of the Chapters, including Chapter IV, the power has been reserved to the Provincial Government to make rules for the purpose of carrying into effect the provisions of the Chapter. The purpose of Chapter IV is described by the compendious expression ''control of transport vehicles'' and the Provincial Government is invested with plenary powers to make rules for carrying out that purpose. Keeping in view the purpose underlying the Chapter we are not prepared to hold that the fixing or altertion of bus stands is foreign to that purpose.... Reliance was placed on a passage at page 299 of Craies on Statute Law as laying down that a bylaw must not be repugnant to the Statute or the general law. But by laws and rules made under a rule-making power conferred by a statute do not stand on the same footing, as such rules are part and parcel of the statute itself."

In Ibrahim''s case (supra) the Court was concerned with Section 68 (2) and held that the matter came within the purview of section 68 (2) (r). In this particular case we are concerned with Section (68) (2) which gives a general power to the State Government to make rules for the purpose of carrying into effect the provisions of the Chapter which, as stated above, has been headed "Control of Transport Vehicles" As laid down in the case of Sib Nath Banerji (2) the generality of the power is not affected by the special powers mentioned in sub-Section 2. Much was argued before me as to the effect of the Rules. It was argued for example that the established rules of interpretation show that rules made under the rulemaking power have the force of law, but cannot be deemed to be incorporated in the Statute, unless the Statute itself says so. The distinction between the Rules made by the Legislature and by a body not having legislative functions was also canvassed. I think that regard being had to the observations made by the Supreme Court in Ibrahim''s case, (Supra) I am not called upon to decide this question, since the Supreme Court has decided that such Rules are part and parcel of the Statute itself. If therefore there are two provisions which are inconsistent with each other in the same Statute, the Rules of interpretation lay down that the subordinate provision must give way to the main and in this respect it is arguable that the Rules must give way to the provisions of the Act itself. (Maxwell 10th Edition page 50). In my opinion however there is not necessarily any inconsistency between the provisions of section 59(2) and Rules 75 and 76. Section 59 sets out the general conditions attaching to all permits. Sub-section 3 has laid down certain conditions which must be contained in every permit. Sub-section 2 grants a right upon the holder of the permit, with the permission of the authority granting the same, to replace any vehicle covered by the permit, by another vehicle of the same nature and capacity. If the matter stood there, then the replacement by a vehicle of a different nature and/or capacity, would be wholly unauthorised. Such an application for replacement would amount to an application for fresh permit. In fact, if it was in respect of a vehicle of a different nature, it still will amount to an application for a fresh permit. The question is whether it is permissible to make a supplementary rule giving the power to the R.T.A. to grant replacement of a, vehicle by a vehicle of a different capacity. I do not think section 59(2) excludes the making of such a rule or forbids it. As has been pointed out by the Supreme Court, the power to make rules under the Motor Vehicles Act is to be found at the end of each Chapter and the intention is to give plenary powers to the State Government to make rules which will carry into effect the provisions of the chapter. This particular Chapter IV deals with ''Control of Transport Vehicles'' and inter alia grants the power to the authorities to entertain applications, inter alia, for the grant of a permit in respect of contract carriages, to issue such permits and, to control the plying of such transport. Section 59(2) has provided the power to grant a replacement under specified circumstances. I do not see why this provision cannot be supplemented, that is to say, why supplementary powers cannot he granted by framing rules, provided that it was done in order to further the object of the Chapter, namely, the control of transport vehicles and provided also it was not inconsistent with the provisions of the Act. By the Rule, no power granted by Section 59(2) has been abrogated, only the power has been added to and supplemented. This, to my mind, can be done under the residuary powers granted u/s 68 to the State Government. It has not been argued before me that the delegation of such power by which the Rules have been made, is void as infringing the provisions of the Constitution The question is altogether limited to the interpretation of the Act and the Rules, and the scope thereof. It will be observed that u/s 50 the only ground upon which an objection can he made is that the existing number of contract carriage permits in the region was more than sufficient or in excess of the needs of the region. No objection can be put forward on the ground of the type of the vehicle used or the seating capacity. In a replacement which is contemplated in the present case, the number of vehicles is not increased. What is being allowed is replacement by a vehicle of the same nature but of a reduced seating capacity. Even if the petitioners had the right to make a representation, the kind of objection which has been canvassed before me would be wholly irrelevant. One may fully sympathise with the petitioners, and the ground that middle class families of West Bengal who were being provided for, will be eliminated by competition, may be a real problem. But that is a matter of Governmental Policy which cannot be taken into account in a court of law. There is no fundamental right to monopoly in any business, and I am glad to say that no fundamental right has been urged or advanced before me. Mr. Choudhury has confined himself, most appropriately, to the interpretation of the Act and the Rules. That being so, in my opinion Rule 75 is not inconsistent with any provision of the Act nor is it outside the scope of the rule making power conferred by section 68 of the Act nor is it ultra vires. So far as Rule 76 is concerned, it appears to relate to the replacement of a vehicle authorised by a service permit. Nowhere in the Act or the Rules or the forms prescribed thereby, do we find any mention of a contract carriage with a service permit. In any event. I think that the appropriate rule to be applied is Rule 75 and not Rule 76.

As regards Rule 75, it does not in terms state that the R.T.A. can allow a replacement if the new vehicle proposed differs in material respects from the existing one, although the right to refuse such an application on that ground has expressly been given. It is clear however that upon a reading of the Rule as a whole, that such power is inherent. In Rule 75(c) it is said: ''If the Regional Transport Authority grants an application for the replacement of a vehicle under this Rule'' which shows that the rule contemplates the granting of such an application.

I shall now deal with the point raised by Mr Das Gupta with regard to the right of appeal. He has refer-red to section 64 which gives the right to an appeal to persons of the category mentioned in sub-sections (a) to (g). The only possible grounds are (b) and (f). The former relates to persons aggrieved by the revocation or suspension of the permits or by any variation of the conditions thereof. This takes us to Rule 81 (a) of the Motor Vehicles Rules which has already been mentioned above. In my opinion this is not a case of the variation of a permit at all. As I has mentioned above, the grant of a permit in respect of a contract carriage is related to a particular vehicle (a permit relating to a service of contract carriages, as contemplated by Rule 76 is not provided for in the Act) Therefore, the variation of the conditions of a permit means the variation of the terms of a permit granted to a particular vehicle. That cannot cover the case of replacement by a vehicle of different nature or capacity. Subsection (f) confers the power of appeal to any person, "being a local, authority or police authority or art association which, or a person providing transport facilities who, having opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto."

The petitioners have never had any opportunity of opposing the grant of the permit so far as replacement is concerned. In fact since it is a replacement, there is no scope for objection because the matter does not come Within section 50. The grievance of the petitioner is that it is an order of replacement which is unauthorised and without jurisdiction. The grievance does not seem to me to come within any of the headings as set out u/s 64. There is therefore nothing in this objection.

As however I have held that the impugned replacement has been made under a Rule which is intra-vires and well within the powers of the R.T.A. this application must fail.

The Rule is accordingly discharged. All interim orders are vacated. There will however be no order for costs. The operation of this order will however remain stayed and the interim order will continue for a fortnight from date, as prayed for by Mr. Mitter on behalf of the petitioners. But the interim order of injunction will not however affect the eight taxi cabs bearing Nos. WBT-220, 576, 430,12, 1031, 1015, 577 and 1191 which have been ordered to be replaced by small taxi cabs.

[An appeal preferred against the judgment was dismissed for non-prosecution.--Ed.]