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2010 Supreme(Cal) 290
HIGH COURT OF CALCUTTA
Honble Justice Mohit S Shah, Chief Justice And Honble Justice Pinaki Chandra Ghose
CALCUTTA HOWRAH AUTO RICKSHAWS OWNERS ASSOCIATION
VS.
STATE OF WEST BENGAL
F. M. A. No. 1359 of 2009
Decided On: MARCH 17, 2010
The State Government has the power to make rules for the purpose of carrying into effect the provisions of Chapter V of the Motor Vehicles Act, 1988, regarding control of transport vehicles, and the clauses in sub-section (2) of Section 96 are without prejudice to this general power.
Headnote:
AUTO-RICKSHAWS - CONTRACT CARRIAGE PERMITS - RESTRICTION TO SPECIFIED ROUTES - VALIDITY - MOTOR VEHICLES ACT, 1988, SECTIONS 72(2)(II), 74(2)(I), 95, 96 - WEST BENGAL MOTOR VEHICLES RULES, 1989, RULE 120(4).
Fact of the Case:
The appellants, owners of auto-rickshaws with contract carriage permits, challenged the constitutional validity of sub-rule (4) of Rule 120 of the West Bengal Motor Vehicles Rules, 1989, which restricted auto-rickshaws to ply on specified routes without meters.
Finding of the Court:
The court upheld the validity of the impugned rule, holding that: (i) the rule did not convert contract carriage permits into stage carriage permits; (ii) the RTO had the power to impose a condition that the vehicle should be used only on a specified route or routes; (iii) the State Government had the power to make the amendment as the provisions of Section 96(2) did not limit the generality of the power under Section 96(1); (iv) the requirement of a taxi meter was not mandatory unless prescribed by the Rules; and (v) the State Government could require a motorcab not to be installed with a taxi meter, considering the specific circumstances.
Issues: 1. Whether sub-rule (4) of Rule 120 of the West Bengal Motor Vehicles Rules, 1989, converted contract carriage permits into stage carriage permits? 2. Whether the RTO had the power to impose a condition that the vehicle should be used only on a specified route or routes? 3. Whether the State Government had the power to make the amendment as the provisions of Section 96(2) limited the generality of the power under Section 96(1)? 4. Whether the requirement of a taxi meter was mandatory unless prescribed by the Rules? 5. Whether the State Government could require a motorcab not to be installed with a taxi meter, considering the specific circumstances?
Ratio Decidendi: 1. The definition of contract carriage in Section 2(7) of the Motor Vehicles Act, 1988, contemplates the use of the vehicle as a whole on a fixed or agreed rate or sum, without stopping to pick up or set down passengers not included in the contract, distinguishing it from a stage carriage, which charges separate fares for individual passengers. 2. Section 72(2)(ii) and Section 74(2)(i) of the Act empower the RTO to impose a condition that the vehicle shall be used only in a specified area or on a specified route or routes, both for stage carriage and contract carriage permits. 3. Section 96(1) of the Act empowers the State Government to make rules for the purpose of carrying into effect the provisions of Chapter V of the Act regarding control of transport vehicles, and the clauses in sub-section (2) are without prejudice to this general power. 4. Clause (viii) of sub-section (2) of Section 74 requires the installation of a taxi meter on motorcabs only if prescribed by the Rules, leaving it to the discretion of the rule-making authority. 5. The State Government has the discretion to decide whether auto-rickshaws should be permitted to ply only on a specified route or in a specified area within the city, and the court will not interfere with this exercise of quasi-legislative power.
Final Decision: The appeal was dismissed, and the observations made by the learned Single Judge to the effect that the challenge to the amendment was mala fide were deleted.
( 1 ) THIS appeal is directed against judgment dated 7th may, 2009 of the Learned Single Judge dismissing the appellants writ petition challenging the constitutional validity of sub-rule (4) of Rule 120 of the West Bengal Motor Vehicles Rules, 1989. It was stated in the affidavit-in-opposition filed on behalf of the respondent authorities that :-
"i deny and dispute that Auto Rickshaws are fitted with metres for realization of fares from the passengers according to distance. I say that very inception the maximum operators never used any metre in the Auto Rickshaw and charged fare according to the distance which was prevailing in that area. As such using metre in the Auto Rickshaw became redundant and the Auto rickshaw have been plying always route basis. I say further that on past experience it was found that metre fitted with Auto Rickshaw was not serving the purpose both to the commuters and the Auto Rickshaw permit Holders and most of the Auto Rickshaws been plying without metre without any complications. Thereafter the State Government decided that the auto Rickshaw should ply in a specified route only in Kolkata and howrah as per provision of Section 74 (j) (a) of the Motor Vehicle act. Accordingly notifications for limiting the number of Auto rickshaw in particular routes were issued by the State government after taking proper clearance from the Government of india. In this connection notification no. 1443-WT/4m-23/25 dated 21. 04. 03 and 986-WT/3m-90/2003 dated 5. 3. 04 were published in the official gazette in respect of Kolkata region and howrah region for limiting the number of Auto Rickshaw in a specified route. "
( 2 ) THE facts giving rise to this appeal, broadly stated are as under :-
2. 1 Appellant No. 1 is the Calcutta Howrah Auto Rickshaw Owners association and the other appellants are owners of Auto rickshaws and members of the said association. The auto rickshaws were introduced in the City of Calcutta in the year 1983-84 and from the very inception, permits for contract carriages were granted to the members of the appellant association. The permits stipulated that fare would be recovered on the basis of meter reading. The members of the appellant association were plying auto rickshaws within Calcutta on the basis of permanent contract carriage permits (auto rickshaw) within the area bounded by vivekananda Bridge (Dakshineswar in the North West) Dunlop Bridge in the North Dum Dum Airport in the West and Garia and Thakurpukur on diamond Harbour Road in the South, Howrah Railway Station in the West.
2. 2 The permits were renewable over five years and were being renewed from time to time without any change or violation of the terms and conditions of the permits. It appears that in the year 2003 the regional Transport Authority (hereinafter referred to as RTA) was taking steps to convert the auto rickshaw permits (area on the basis with meters)into route permits (specific route without meter) and thereupon the association filed writ petition being W. P. No. 9423 (W) of 2003. By judgment dated 31st July, 2003 a learned Single Judge of this Court disposed of the writ petition by directing the RTA, Kolkata to consider the petitioners application for renewal of permits in accordance with law without insisting on removal of meters so long as Rule 120 of the West bengal Motor Vehicles Rules, 1989 was not amended or deleted. The applications for renewal by the appellants were pending. Thereafter, the members of the appellant association also applied for replacement of existing auto rickshaw by the LPG mode auto rickshaw and their renewal applications were pending.
2. 3 Rule 120 of the West Bengal Motor Vehicles Rules came to be amended by notification dated 12. 12. 2003 w. e. f. 16. 12. 2003. Rule 120, prior to its amendment applied uniform conditions to taxis and autorickshaws as title to Rule 120 indicated. Prior to amendment, Rule 120 (relevant portion) read as under :-120. (1) Special Condition of
