Calcutta High Court (Appellete Side)
Bapi Ghosh vs State Of West Bengal & Ors on 23 December, 2024
23.12.2024.
Tudu (p.a)
Sl. No.15
Ct. No.25.
WPA 19267 of 2024
Bapi Ghosh
Vs.
State of West Bengal & Ors.
With
WPA 19269 of 2024
Jitendra Kumar Jaiswal
Vs.
State of West Bengal & Ors.
With
WPA 19270 of 2024
Laxmi Ghosh
Vs.
State of West Bengal & Ors.
With
WPA 19271 of 2024
Jitendra Kumar Jaiswal
Vs.
State of West Bengal & ors.
With
WPA 19274 of 2024
Pradip Kumar Mondal
Vs.
State of West Bengal & Ors.
Mr. Sanat Kumar Roy,
Mr. Baidurya Ghosal.
... For the Petitioner.
Mr. Amal Kumar Sen,
Mr. Lal Mohan Basu.
........for the State in
WPA 19270 of 2024 & WPA 19271 of 2024.
Mr. Pantu Deb Roy,
Mr. Pannalal Bandopadhyay.
......for the State in
WPA 19274 of 2024
Mr. Suman Ghosh,
Mr. Sankha Prasad Roy.
..... for the State in
WPA 19267 of 2024
Mr. Rajarshi Basu,
Mr. S. T. Mina.
..... for the State in
WPA 19269 of 2024
2
1. All the writ petitions in this bunch involve similar
issues, hence taken up together for hearing and
disposal by the same order.
2. The matter relates to grant of "No Objection
Certificate", by the corresponding reciprocating
Regional Authority that is, RTA Birbhum, as to the
order of extension of the route upon which the writ
petitioner operates, issued by the other Authority,
that is, the Regional Transport Authority, Paschim
Burdwan/respondents No.2&3. The "No Objection
Certificate” would be required as the extended route
would lie through the said two regions under RTA
Paschim Burdwan as well as RTA Birbhum.
3. The writ petitioners are the operators on the route
from Durgapur Railway Station to Pandabeswar.
The petitioners applied for extension of the route
from the termini Pandabeswar, to Dubrajpur,
covering 18 kilometres of roadway. The proposed
extension would fall under jurisdiction of the RTA
Birbhum/respondents No. 4, 5 & 6. Their such
prayer has been allowed by the RTA Board, Paschim
Burdwan, in its resolution dated December 23,
2020. Consequently and in terms of the statutory
provision, the Secretary, RTA Paschim
Burdwan/respondent No.3 wrote to his counterpart
at RTA Birbhum, vide letter dated September 1,
2022, for grant of the “No Objection Certificate”, in
order to let the petitioner operate on the extended
route. Reminder has also been sent vide letter dated
July 7, 2023. Since there has not been any response
to such requisition of the respondent No.3, by the
respondent No.6, the petitioners have filed the
instant case.
3
4. The petitioners have prayed for direction to be made
upon the respondents No.4, 5 & 6, for granting “No
Objection Certificate”, as to the order for extension
of the route.
5. The respondent’s stand is evident from the report of
them, submitted on affidavit. Its decision is not to
grant the “No Objection Certificate” and the same is
based on the report of the Superintendent of Police,
Birbhum [herein after referred to as “the SP”], dated
October 10, 2023. The SP writes that “Dubrajpur is
already over burdened with huge traffic. Allowing
more vehicles would make the traffic congestion
worse. Local people are already feeling aggrieved.
This will create more inconvenience for them.”
6. The respondent No.5 informs his counterpart at RTA
Paschim Burdwan, vide letter dated October 30,
2023 that route extension is not feasible owing to
the traffic congestion in Dubrajpur.
Arguments made on behalf of the writ
petitioners:
Not granting counter signature/”No
Objection Certificate”, would amount to
gross violation of the statutory provision
under Rule 104, of the West Bengal
Motor Vehicles Rules, 1989.
That, the respondents No.4 to 6, would
not be empowered and eligible under
the law to refuse to grant “No Objection
Certificate”, as to the order of RTA
Board, Paschim Burdwan, in view of the
provision under section 88 of the Motor
Vehicles Act, 1988, in so far as section
88 (3) of the said Act, has provided the
countersigning authority only with the
power to impose certain conditions,
before grant of counter signature, as it
considers proper. That, there is no
power of the counter signing authority,
to decline countersignature, to the order
4for extension of the route already
granted by the permit issuing authority.
That, non-granting of counter
signature/no objection certificate would
amount to limiting the number of
vehicles on the route. However,
controlling the number of vehicles to
run on a route is the sole domain of the
state government, which it controls by
means of notification to that effect,
published in exercise of the statutory
power granted under section 71 (3) (a) of
the Act of 1988. The provisions under
section 115 of the said Act has also
been referred to in this regard. That, the
Regional Transport Authority cannot
embark upon any such action or
inaction which effectually would mean
usurping the power of the State
Government as above by it. That, had
there been a notification restraining
number of vehicles on the said extended
route the entire scenario would have
been otherwise. Also that the ground
cited of congestion in the route would
not be a cogent, justified or
maintainable ground, for declining
counter signature/no objection
certificate, in accordance with the law.
Arguments made on part of the State
respondent:
The State has raised a preliminary point of
objection. That is regarding an
alternative dispute redressal statutory
forum being available to the petitioners.
That, according to section 68(3)(c) of the
Act of 1988, the State Transport
Authority, West Bengal has been
empowered to exercise and discharge
the powers and functions throughout
the State, to settle all disputes and
decide on matters on which differences
of opinion arise between Regional
Transport Authorities. Since according
to the State respondent, the present
dispute is between the two Regional
5Transport Authorities due to differences
of their opinion, the same should be
referred to and decided by the State
Transport Authority, under the
provisions of section 68(3)(c) of the
Motor Vehicles Act, 1988. That, in this
regard the corresponding Rule would be
Rule 103 of the Rules of 1989, which
has provided jurisdiction and power of
the Divisional Commissioner or the
State Transport Authority in case of no
unanimity between the two Regional
Authorities with respect to grant of
permit on any route, falling within
jurisdiction of the two regions. Therefore
the writ Court may not entertain the
present case, due to availability of the
alternate forum for dispute resolution.
According to section 88(1) of the Motor
Vehicles Act 1988, the respective
Authority of the reciprocating region is
the appropriate Authority for granting
permit or permission for extension of
the route under a permit, which lies
within its jurisdiction. A permit or
permission for extension of route under
the permit lying within jurisdiction of
the other region, shall not be counted as
valid, unless countersigned by Authority
of such other region, as per the said
provision of law.
A conjoined reading of section 88(1) of the
Act of 1988 and Rule 104 of the West
Bengal Motor Vehicles Rules, 1989
would suggest it to be a mandate that
concurrence in the form of
countersignature/no objection
certificate, be obtained before the order
of the issuing Authority be considered
as valid.
Section 88(4) of the Act of 1988 has
provided that provisions in this regard
for grant of a new permit would
similarly be applicable in case of validity
6of the permission granted for extension
of the route too.
7. In reply, the petitioner would say that the present
dispute is not with regard to the route in question
but due to the inaction in granting concurrence/no
objection. That, therefore, the preliminary point
taken against the petitioners would not be
maintainable.
8. Propriety and legality of refusal of countersignature
as to the permission granted to the petitioners for
extension of the route, beyond the boundary of the
permit issuing Authority, is in question and to be
determined in this writ petition.
9. According to the Supreme Court [in case of
Mithilesh Garg vs. Union of India reported in (1992)
1 SCC 168], Article 19 (1) (g) is a guaranteed right of
every citizen of India to take up and carry on the
motor transport business. It is only the State which
can impose reasonable restrictions within the ambit
of Article 19(b). The Court says that the Act of 1988
provides liberal policy, which are in conformity with
Article 19(1) (g). According to the Court, as
promulgated therein, when the State has chosen not
to impose any restriction under Article 19(b) by any
Rule in respect of motor transport business and has
left the citizens to enjoy their rights under Article
19(1)(g) of the Constitution, the Court in that case
hold that, such right of a citizen, cannot be held
restricted at the instance of the other operate.
10. Of course unlike the present case, in Mithilesh
Garg‘s case (supra), the Court was concerned with
grant of new permit to the appellant therein.
However, as per provisions under Section 88 (4) of
the Motor Vehicles Act, 1988, in case of grant of
countersignature, which is an issue involved in the
7
present case, the provisions of grant of a new permit
would apply mutatis mutandis for grant of
countersignature of permit too, without following
the procedure laid down in Section 80 of the Act,
regarding grant of a new permit.
11. Taking clue from the ratio decided in Mithilesh
Garg‘s case (supra), it is to be seen that if there
would have been a justification in imposing
restriction, for the reason of traffic congestion, as
regards permission granted to an operator, to
operate on extended route, under the liberal policy
of the Act of 1988.
12. The present matter relates to grant of permission to
the petitioner to operate on extended route, through
inter regional territory, where one of the termini
changes and shifts within the territory of the other
region. In that event, according to Section 88 (1) of
the Act of 1988, such permission granted by one
RTA of any one region (in this case RTA Purba
Bardhaman), shall not be valid in the other region
(in this case RTA Birbhum), unless countersigned by
the Authority of the other region (in this case RTA,
Birbhum).
13. Pertinent also is to note the provisions under
Section 88 (3) of the said Act, which speaks that at
the time of countersignature, the Authority of such
other region, may attach or vary any condition
attached to the permit, which it might have imposed
if it had granted the permit.
14. Therefore, the power of such other Regional
Transport Authority, to turn down request for
countersignature, is unavailable in the statute. On
the other hand, according to Section 88 (3) of the
said Act, power for variation or attachment of
8
conditions at the time of countersignature, has been
granted.
15. Even on perusal of the provisions laid down in Rule
104 of the West Bengal Motor Vehicle Rules, 1989,
it appears that reference to the other Regional
Authority, for concurrence has been mandated
therein, though the Rules have not provided
empowering the said other Regional Transport
Authority, to decline concurrence, without following
the due procedure under the law.
16. The statutory provisions as above, being read with
the ratio laid down in Mithilesh Garg‘s case (supra),
would justify that plying of vehicles cannot be
reasonably restricted, by anyone, excepting the
State Authorities, for any justifiable reason. In this
regard the law is eloquent enough vide provisions
under Section 71(3) (a) of the Motor Vehicles Act,
1988. Let the said provisions be quoted here:-
“71. Procedure of Regional Transport
Authority in considering application for
stage carriage permit.–
** ** ** ** **
(3) (a) The State Government shall, 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 stage carriages generally or of
any specified type, as may be fixed and
specified in the notification, operating on
city routes in towns with a population of
not less than five lakhs.”
17. Therefore, according to the same, restrictions can be
imposed having regard to the number of vehicles,
road conditions and other relevant matters, by
publication of a notification in Official Gazette. No
doubt, the ground of traffic congestion, taken by the
9
RTA, Birbhum, for not granting countersignature as
to the permission for extension of the route, relates
to considerations to control and limit the number of
vehicles, which would be subject to publication of
notification in the Official Gazette and not
otherwise, in accordance with the statutory
provision as mentioned above. Or otherwise any
such restriction or restraint would amount to
violation of the rights of the petitioner, guaranteed
under Article 19(1)(g) of the Constitution. The due
procedure of law would be publication of notification
under Section 71(3)(a) of the Motor Vehicles Act,
1988, having regard to the number of vehicles
plying over the route and modulating the same, in
any manner, as deemed fit and proper. Excepting
the same, there are no legally justifiable, valid or
maintainable course by dint of which, measures
may be taken, affecting limiting the number of
vehicles plying in any route. Or otherwise the same
would be in contravention of the liberal policy under
the 1988 Act as well as the Constitutional guarantee
under Article 19(1)(g) thereof.
18. Now, coming to the preliminary point, as regards
maintainability of this writ petition is concerned, as
raised by the State respondent, particularly with
reference to Section 68(3)(c) of the Act of 1988 and
Rule 103 of the Rules of 1989, is concerned, this
Court finds proper to record, as under Section 68 (3)
of the Motor Vehicles Act, 1988, has provided for the
powers and functions of the State Transport
Authority, to give effect to any direction under
Section 67 of the said Act. Therefore, the powers
and functions of the State Transport Authority
under Section 68 (3) of the said Act, is limited to
make effective any decision given under Section 67
of the said Act. Section 67 also speaks about
prevention of overcrowding and road safety and the
10
power of the State Government, to control road
transport, for the said reason, as well as other
reasons as enumerated in the said provision of law.
The law says that the State Government is to
exercise such power, by publication directions vide
notification in Official Gazette. On a careful reading
of the said provision, it transpires that any dispute
regarding implementation of the direction of the
State Government in Official Gazette, including that
relating to prevention of overcrowding and
maintaining road safety, would be amenable to the
resolution mechanism, as provided under Section
68 (3) (c) of the Motor Vehicles Act, 1988. However,
as discussed earlier, so far as the extended portion
of the route, in this case, that is, from the
Pandabeswar to Dubrajpur, is concerned, there is
no declaration by the State Government either
under Section 67(1) of the Motor Vehicles Act, 1988,
or Section 71 (3) (a) thereof, with regard to
overcrowding or unsafe road condition or directing
to limit the number of stage carriages generally or of
any specified type. Since the present case is not
related to any direction of the State Government,
published in the Official Gazette, the remedy
provided under Section 68 (3) (c) of the said Act,
would not be available to the petitioners in these
cases. The Court is constrained to disapprove and
refuse the arguments advanced by the State
respondent, in this regard.
19. On the other hand, it is found on the basis of the
discussion as above, that the Regional Transport
Authority, Birbhum, would not be empowered or
authorized under the law, to refuse of grant
countersignature on the basis of report whatsoever,
in absence of any notification being published by
the State Government, with regard to overcrowding,
road safety or limiting the number of vehicles, to ply
11
on the route in question and excepting there is any
patent illegality as to the plying of vehicle by the
petitioners, on the extended route. Such authority
is vested only with the State Government as per law.
Hence, the Regional Transport Authority, Birbhum
has taken a stand unauthorisedly and not in
conformity with the law. It tends to exercise such
power which is not vested in it by law. Hence, the
same is not tenable in the eye of law. In absence of
any statutory power, the respondent Regional
Transport Authority, Birbhum cannot be allowed to
decline countersignature for extension of the route
of the writ petitioner, under their permit, on the
ground of road congestion, in accordance with the
law. Hence, this writ petition should succeed.
20. The writ petition Nos. WPA 19267 of 2024 with WPA
19269 of 2024 with WPA 19270 of 2024 with WPA
19271 of 2024 with WPA 19274 of 2024 are allowed
with the following direction:
(i) the respondent/RTA, Birbhum is directed to
immediately grant countersignature as to the
extension of route under the permit of the writ
petitioners, maximum within a period of two weeks
from the date of communication of this order
21. Urgent Photostat certified copy of this order, if
applied for, be given to the parties, upon compliance
of necessary formalities.
(Rai Chattopadhyay, J.)