1. The petitioners in this batch of writ petitions had applied for permits before various Regional Transport Authorities (hereafter the RTAs) to operate auto rickshaws. All such applications have been rejected by resolutions of diverse dates, referring to a notification dated January 29, 2010 issued by the State Government. The challenge in all these writ petitions is to such notification together with the separate resolutions rejecting the applications for permits.
2. Noticing that common questions of law and fact were involved, the writ petitions were heard analogously; they shall stand disposed of by this common judgment and order.
3. For facility of reference, the notification dated January 29, 2010 in its entirety is reproduced below:
No: 268-WT/ M-01/2010 Pt. I Date: 29/01/2010
WHEREAS the State Government in the Transport Department framed a policy for granting of permit to -wheeled auto-rickshaws under notification No. 4786- WT/ M-49/2001 Pt. I dated 19th October 2004, the main features of which inter alia are quoted below:
"AND WHEREAS the Government in the Transport Department has been considering various aspects involved in the matter of issue of granting permits to such type of Three Wheeled Auto Rickshaws keeping in view the interest and safety of the travelling public in general and the passengers of such Three Wheelers in specific vis- -vis the danger of accidents from fast moving vehicles on the National and State Highways;
Now, therefore, the Government in the Transport Department, after considering all the matters as stated hereinabove, holds that such -wheeled passenger vehicles cannot be treated as Maxicab for the purpose of granting State Carriage Permits within the purview of the said Notification No. 2 17- WT/ M-49/2001 dated 7th June 2004 and directs that henceforth no permit (both Stage Carriage and Contract Carriage) to such Three Wheeled Auto Rickshaws shall be granted as indicated below under the category of 'Maxicab';
(a) In routes/areas covering more than one district,
(b) In routes/areas falling within the jurisdiction of Kolkata Metropolitan Area.
The Government further directs that granting of permit to such -Wheeler Auto Rickshaws within a particular district only may however be considered by the concerned RTA of the districts (outside the Kolkata Metropolitan Area) after observing all the orders issued by the Transport Department in regard to the restrictions imposed so far in the matter of granting permit to the Three Wheeled Auto Rickshaw and after taking into consideration the road condition, congestion of road traffic and safety and security of the passengers travelling in such -Wheeled Auto Rickshaw as aforesaid, within the ambit and scope of the Motor Vehicles Act, 1988 and Rules framed thereunder.
The Government in the Transport Department shall only be competent to grant any relaxation in the matter."
AND WHEREAS His Lordship the Hon'ble Mr. Justice Tapen Sen passed an order dated 5th January 2010 in W.P. 22994 (W) of 2009 wherein His Lordship observed that the State Government should formulate an appropriate policy in the matter pertaining to the grant of auto-rickshaw permits in the State;
AND WHEREAS the Transport Department has since considered the matter afresh taking into view different aspects in respect of such grant of permits to autorickshaws, namely, safety and security of the passengers in the context of growing rate of road accidents, traffic congestion as well as the volume of traffic in different roads in the State.
Now, therefore, in consideration of all these aspects and in pursuance to the orders of the Hon'ble High Court, the Governor is pleased to direct that the following guideline should be followed in respect of granting of -wheeled Auto-rickshaw permits in this State :
1. No new auto-rickshaw permits should be granted in routes and areas falling within the jurisdiction of Kolkata Metropolitan Area;
2. No new auto-rickshaw permit should be granted in routes and areas covering more than one district;
3. No new auto-rickshaw permit will be allowed on National Highways except crossing such NHs at recognized points;
4. Plying of new auto-rickshaws on State Highways shall be restricted upto a stretch of maximum kms;
5. No new auto-rickshaw permit will be issued covering more than 0% of existing bus routes in roads other than NH/SHs;
6. Grant of -wheeled auto-rickshaw permit within a particular district only may, however, be considered by the concerned RTA of the district after taking into consideration the road condition, congestion of road traffic and safety and security of the passengers travelling in such -Wheeled Auto Rickshaw as aforesaid, within the ambit and scope of the Motor Vehicles Act, 1988 and rules framed thereunder.
The Government in the Transport Department shall only be competent to grant any relaxation in the matter. This order shall take immediate effect.
4. Bare perusal of the said notification would reveal reference to an order dated January 5, 2010 passed by Hon'ble Tapen Sen, J. while considering W.P. 22994(W) of 2009. It would be necessary to note what His Lordship exactly directed and hence such order is quoted verbatim hereunder:
"Having heard the parties this Court is of the view that the matter pertaining to the grant of auto rickshaw permit on the route Mamjoamghat to Ramnagar via Viana Station, Bagula Station, Kaikhali requires a reconsideration by the Regional Transport Authority, Nadia. The reason why this Court feels that there should be a reconsideration is because the application has been rejected on three grounds. Two of such grounds, namely the ones pertaining to not furnishing garage details and not supplying proof of financial stability, have already been decided by this Court in a number of Writ Petitions including W.P. No. 20788 (W) of 2009 with W.P. No. 20789 (W) of 2009 on 16th December, 2009.
Consequently, this Cou
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t is of the view that so far as these two grounds are concerned, the Authorities should reconsider the matter in the light of the observations made therein.So far as the third ground is concerned, it appears that the Authorities have stated that the route applied for is a bus route. On the basis of this ground, as well as the two mentioned above, the Authorities proceeded to reject the application for grant of an auto rickshaw permit.The learned counsel for the petitioner submitted that the statute nowhere lays down that an application for an auto rickshaw permit shall be rejected if a portion and/or the route applied for by the said auto rickshaw overlaps a route traversed by a bus. Learned counsel for the State could not dispute such a contention.Under such circumstances, the rejection of an application on such a ground is alien to the Statute.Unless the State Government frames a policy laying down qualifications and criteria for grant of an auto rickshaw permit, a Regional Transport Authority, on its own, cannot take such a decision. It is true that if Auto Rickshaws are allowed to ply on bus routes, there may be severe traffic congestion or risk to the safety of passengers traveling in such auto rickshaw, but unless the State Government formulates a policy, the rejection by an authority on a ground which is not within the policy of the State nor within the statute, cannot be allowed to be sustained.Accordingly, the order and/or the Resolution of the Regional Transport Authority, Nadia, taken on 18/7/2009 is set aside and the matter is remanded to the said authority for a reconsideration and for taking a fresh decision in accordance with law within a period of four weeks from the date of receipt of a copy of the order.Simultaneously, let a plain photocopy of this order be handed over and served upon the learned Advocate General, State of West Bengal, for consideration of the observations made above and for taking up the matter with the Government for considering the desirability of framing an appropriate policy in the matter pertaining to the grant of auto rickshaw permits.With the aforesaid observations, this writ petition is disposed of.Subject to an application for certified copy being made and proof in support thereof being produced, let a plain photocopy of this order, duly countersigned by the Assistant Registrar (Court), be handed over to the parties on usual undertakings."5. Mr. Murari Mohan Das, learned advocate representing the petitioners in W.P. 20957 (W) of 2012 and some other writ petitions advanced the lead argument in support of the contention that the impugned notification is ultra vires and, therefore, ought to be set aside. Submissions have also been made by Mr. Sanat Kumar Roy, Mr. Sankar Nath Mukherjee and Mr. Mukundalal Sarkar, learned advocates representing some other sets of petitioners. They echoed the submissions of Mr. Das and prayed for relief as claimed in the respective writ petitions.6. All these writ petitions were opposed by Mr. Pantu Deb Roy, learned advocate for the respondents, who prayed for dismissal of the writ petitions.7. The submissions advanced on behalf of the parties may now be noted.8. Referring to the provisions of the Motor Vehicles Act, 1988 (hereafter the MV Act), Mr. Das contended that power to grant permits is vested in the State Transport Authority, West Bengal (hereafter the STA) and on each of the RTAs constituted for the several districts of the State; that power has been conferred on the State Government to limit the number of permits to be granted, be it stage carriage or contract carriage, only by notification in the official gazette and that too on the direction of the Central Government, as would appear from Sections 71( ) and 74( ) of the MV Act; that the power to frame rules has been given to the State Government for controlling vehicular traffic; that power has been given, vide Rule 88 of the West Bengal Motor Vehicles Rules, 1989 (hereafter the WBMV Rules), to the STA to frame policies to control and coordinate the matter of road transport subject to directions issued by the State Government, but the State Government has no power to frame policy for control and coordination of road transport; that unless a rule is framed by the State Government, power of the STA/RTAs cannot be truncated by the State Government; that by an executive order under Article 162 of the Constitution, the State Government cannot impose restriction on grant of permit since legislative provisions relating to grant of permit are already occupying the field and hence, room for an executive order restricting grant of permits does not exist; that so long the STA/RTAs are empowered to grant permits keeping in mind the liberalized policy of grant of permits under the MV Act, such power cannot be abrogated by an executive order; that it was not the intention of Hon'ble Tapen Sen, J. that no permit should be granted authorizing auto rickshaws to ply on any bus route but what His Lordship intended was a regulatory control and not a total restriction, and a total misinterpretation of the order of His Lordship has resulted in the birth of the impugned notification; that the impugned notification is contrary to the order of His Lordship; that restrictions made in respect of routes outside towns having population of 5 (five) lakhs can be imposed only by policy framed by the STA, which are to be followed by the RTAs and the State Government has no power to say that in respect of such routes the RTAs shall not issue permits; and that the petitioners having been selected under SESRU Scheme and having surrendered employment exchange registration cards, would be immensely prejudiced if the impugned notification were to be sustained and allowed to stand in the way of grant of permits in their favour.9. While adopting the aforesaid submissions of Mr. Das, Mr. Roy contended that the impugned notification renders the provisions of Section 80 of the MV Act nugatory. The right conferred on an applicant for a permit to apply "at any time" is sought to be taken away in an arbitrary manner, thereby contravening Article 14 of the Constitution. That apart, restrictions imposed by the impugned notification on inter-regional routes contravene Section 69 of the MV Act and no encroachment of statutory provisions brought in force by the legislature is permissible by an executive order. It was further submitted by him that the MV Act does not prohibit operation of auto rickshaws on routes serviced by stage carriages and the clauses in the impugned notification which run counter to the central legislation must be declared ultra vires. It was also contended that the Government has no power to fix the length of routes for granting permits and the provisions of Sections 69, 74 and 80 of the MV Act would stand virtually obliterated if the executive instructions were allowed to supplant the statute.10. Mr. Mukherjee too voiced a grievance that the notification dated January 29, 2010 seeks to override the MV Act. Reference was made to Section 74( ) of the MV Act to contend that if no notification has been issued limiting the fleet strength of contract carriages, it is not open to the State Government to provide by an executive order that congestion would be a factor for refusing grant of future permits. The impugned notification being a piece of law created by the executive overstepping its limits, he submitted that the same ought to be set aside and the applications for permits may be directed to be considered afresh.11. In his turn, Mr. Sarkar adopted the submissions of Mr. Das and Mr. Roy and in addition he submitted that the applications filed by the petitioners represented by him were rejected citing clause (6) of the impugned notification and that without approval of the Central Government under Section 74 of the MV Act, the applications ought not to have been rejected. By referring to pages and 7 of the writ petition [W.P. 20960 (W) of 201 ], a case of discrimination was sought to be setup by him.12. The following decisions were cited by Mr. Das and Mr. Roy in support of the contentions raised on behalf of the petitioners:1. P. H. Paul Manoj Pandian v. P. Veldurai : (2011) 5 SCC 214;2. Nandini Sundar v. State of Chhattisgarh : (2011) 7 SCC 547;3. State of M. P. v. S. K. Dubey : (2012) 4 SCC 578;4. Jai Singh v. Union of India : 199 Cr. L.J. 2705;5. Manohar Lal Sharma v. Union of India : (201 ) 6 SCC 616;6. Brij Mohan Lal v. Union of India (2012) 6 SCC 502; and7. S. Sivaguru v. State of Tamil Nadu : (201 ) 7 SCC 5.13. Per contra, Mr. Deb Roy argued that the State Government did not commit any illegality. Referring to the order of Hon'ble Tapen Sen, J., he contended that the Court had desired that an appropriate policy in the matter pertaining to grant of auto rickshaw permits should be framed, which fructified in the issuance of the impugned notification. The State Government in deference to the judgment of Hon'ble Tapen Sen J. had considered it proper to activate itself to protect the interest of a vast section of the public, who avail of the services rendered by auto rickshaw operators. All the clauses of the notification, according to him, are intended to sub-serve public good and, therefore, the Court may decline to interfere in the challenge that has been presented by the petitioners. He also relied on various decisions, which shall be referred to later, if necessary, in support of his contention that the decision to regulate plying of auto rickshaws in the State as taken by the State Government is lawful and that the impugned notification is valid.14. In reply, Mr. Das contended that the earlier notification dated August 6, 2004 issued by the State Government in relation to three wheeled auto-rickshaws should have been brought to the notice of Hon'ble Tapen Sen, J. Since there was a policy in place, there was no need to frame a further policy. It was further contended that despite the restrictions in respect of grant of new permits for auto rickshaw operators within Kolkata Metropolitan Area (hereafter the KMA), several permits were issued without adhering to the notification dated August 6, 2004 and, therefore, the petitioners represented by him are also entitled to parity. He prayed for an order on the Regional Transport Authority, Nadia (hereafter the RTA, Nadia) to grant the petitioners permits with the condition that they shall not enter the KMA, should the Court repel the challenge to the notification dated January 29, 2010.15. Having heard the parties at length, the first question that the Court is called upon to answer is whether the notification dated January 29, 2010 is valid in the eye of law or not. Should the answer be in the negative and it is declared ultra vires, the impugned resolutions of the respective RTAs rejecting the applications for permits of the petitioners are likely to fall through. On the other hand, if the question is answered in the affirmative, each of the impugned resolutions of the RTAs would have to be taken up for consideration individually to ascertain whether the terms of the notification dated January 29, 2010 have been correctly applied or not in rejecting the applications for permits.16. The Constitution of India is the supreme law; it is the fountain head of all the laws. It is well recognized by now that any Act of Parliament or of a State legislature, could be challenged and set at naught as ultra vires, if it is established that (i) either the Parliament or the legislature, as the case may be, was not conferred the power by the Constitution to legislate on the subject matter of the relevant legislation; and/or (ii) the subject legislation is unconstitutional on the touchstone of Article 14 of the Constitution. Similarly, a subordinate legislation or an instruction issued by the Central or a State Government in exercise of executive power, which is found to foul the parent enactment or the Constitution, can also be declared ultra vires. These principles have not been disputed at the bar.17. The MV Act is a central legislation, which has been enacted by the Parliament having regard to entry 5 of List III of the Seventh Schedule to the Constitution, which reads "mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied". In 1988, when the MV Act was brought on the statute book upon repealing the Motor Vehicles Act, 19 9, operation of auto rickshaws was at a nascent stage in the country and one hardly finds any reference to it in the MV Act. Having regard to the fact that an auto rickshaw is a mechanically propelled vehicle used for carrying passengers for hire and having carrying capacity of 4/5 persons including the driver, it could be comprehended within the meaning of a 'motor cab', defined in Section 2(25) of the MV Act. For the first time, an auto rickshaw was defined by the Central Government in Notification No. SO 4 6(E) dated June 12, 1989, meaning "a motor vehicle having three wheels constructed or adapted and used to carry not more than three passengers for hire or reward excluding the driver". The same definition has been bodily lifted and incorporated in the West Bengal Motor Vehicles Tax Act, 1979 by an amendment w.e.f. July 21, 1999 with an explanation that a motor vehicle having three wheels constructed or adopted and used to carry more than three passengers but not more than twelve passengers for hire or reward excluding the driver shall not be treated as an auto rickshaw but as motor cab or maxicab, considering its seating capacity under the MV Act. Similar definition is found in the West Bengal Motor Vehicles Additional Tax and One-Time Tax on Motor Vehicles Act, 1989. Obviously, special provisions relating to grant of permits to auto rickshaws or any regulatory mechanism in regard to operation of the same on routes are conspicuous by its absence in the MV Act. Grant of permits to operate auto rickshaws were made bearing in mind that it answers a 'contract carriage' as defined in Section 2(7) of the MV Act, and Sections 7 and 74 thereof relate to application for grant of contract carriage permit and grant of contract carriage permit respectively.18. Now, if a statute or a subordinate legislation does not provide any guideline either in skeletal form or in any great detail how a particular situation is to be dealt with and there appears to be a vacuum, what is expected of the appropriate Government to deal with such situation?19. Exactly fifty six years ago, a Constitution Bench of the Supreme Court in Ram Krishna Dalmia v.Justice S.R. Tendolkar : AIR 1958 SC 5 8, had the occasion to observe as follows:"In the tempo of the prevailing conditions in modern society events occur which were never foreseen and it is impossible for the Parliament or any legislature to anticipate all events or to provide for all eventualities and, therefore, it must leave the duty of taking necessary action to the appropriate Government. This delegation of authority, however, cannot be unguided or uncontrolled but the discretion given to the appropriate Government must be guided by public policy and public interest and must conform to the object that the statute seeks to achieve."20. A few years later, another Constitution Bench of the Supreme Court in Jyoti Pershad v. Union Territory of Delhi : (1962) 2 SCR 125, observed as under:"19. ***In the context of modern conditions and the variety and complexity of the situations which present themselves for solution, it is not possible for the legislature to envisage in detail every possibility and make provision for them. The Legislature, therefore, is forced to leave the authorities created by it an ample discretion limited, however, by the guidance afforded by the Act. This is the ratio of delegated legislation, and is a process which has come to stay, and which one may be permitted to observe is not without its advantages. So long, therefore, as the legislature indicates, in the operative provisions of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation is skeletal, or the fact that a discretion is left to those entrusted with administering the law, affords no basis either for the contention that there has been an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested is uncanalised and unguided as to amount to a carte blanche to discriminate. The second is that if the power or discretion has been conferred in a manner which is legal and constitutional, the fact that Parliament could possibly have made more detailed provisions, could obviously not be a ground for invalidating the law."21. These observations, instead of losing relevance over the years, have stood the test of time, and constitute the parameters for exercise of the executive power of the State under Article 162 of the Constitution. The rule that has now attained due recognition is that the executive power of the State Government is co- extensive with the legislative power of the State legislature.22. The decisions of the Supreme Court cited by Mr. Das and Mr. Roy are mostly of recent origin, rendered not by Constitution Benches. I endeavoured to ascertain upon perusal of such cited decisions as to whether the same lay down a principle of law that comes into conflict with the Constitution Bench decisions referred to above or other Constitution Bench decisions on the scope and extent of executive power exercisable by the Central Government or by a State Government, viz. Rai Sahib Ram Jawaya Kapur v. The State of Punjab : AIR 1955 SC 549; Jayantilal Amratlal Shodhan v. F. N. Rana : AIR 1964 SC 648; B. N. Nagarajan v. State of Mysore : AIR 1966 SC 1942; and Mahalakshmi Mills Ltd., Bhavnagar, v. Commissioner of Income Tax : AIR 1967 SC 266. I have not been able to find any inconsistency between any of the aforesaid decisions and the decisions cited at the bar. The common thread that runs through all the decisions is that the executive instructions could fill in gaps not covered by the statutory provisions but such instructions cannot be in derogation thereof. In other words, executive instructions cannot supplant statutory rules but may supplement it. Merely because the field of motor transport is occupied by an Act, here the MV Act, does not mean that executive instructions containing guidelines for grant of permit cannot or may not be issued to be read into unoccupied interstices of the statute in the absence of a clear mandate to the contrary.23. As and by way of illustration, I propose to discuss at this stage the law laid down by the Supreme Court in Ambesh Kumar (Dr.) v. Principal, L.L.R.M. Medical College : 1986 Supp SCC 54 , for, in my opinion the law laid down therein would squarely apply here. A batch of civil appeals preferred by candidates who were aggrieved by dismissal of their writ petitions by the High Court was under consideration. The question of law that the Court was called upon to decide was whether a notice dated December 15, 1982 issued by the Government of Uttar Pradesh laying down the qualification regarding eligibility of a candidate to be considered for admission to the postgraduate degree in MD, MS and diploma course in MD, MS etc. on the basis of merit in accordance with the regulations made under the Indian Medical Council Act is invalid, as it trenches upon entry 66 of List I of the Seventh Schedule to the Constitution.24. The facts of the reported case reveal that in accordance with the provisions of Section of the Indian Medical Council Act, 1956, the Medical Council with the previous sanction of the Central Government had framed regulations laying down the standards for proficiency to be obtained and the practical training to be undertaken in medical institutions for grant of recognised medical qualification. The said regulations, as approved by the Central Government, laid down the criteria for selection of candidates for postgraduate training too. For the purpose of the present discussion, it is not necessary to dilate on all the criteria that were fixed by the regulations except that selection was to be made strictly on merit judged on the basis of academic record in the undergraduate course. Suffice it to note that the State Government issued a notice on October 15, 1982 inviting applications for admission to the various post-graduate courses in degree and diploma in the different specialities of the medical colleges making it clear that the minimum eligibility qualification of the applicants would be according to the recommendations of the Medical Council of India and that the admission would be made as per existing rules and regulations of the Government and the college, and recommendations of the Medical Council of India. It was followed by a Government Order dated December 15, 1982. In accordance therewith, a candidate in order to be eligible for consideration for admission to the post-graduate course on merit must have secured 55% marks for admission to post-graduate degree course and 52% marks for admission to the post-graduate diploma course. A candidate who did not secure the requisite marks in the MBBS examination as ordained by the said Government Order would render him ineligible for consideration on the basis of merit for admission to the various post-graduate courses in the medical college. The unsuccessful candidates who were not eligible for consideration according to this Government Order questioned the power of the State Government in making the aforesaid order on the ground that the Medical Council by its regulations had already laid down the requisite criteria or standards for admission to the post-graduate courses in the medical colleges in accordance with the merits of the candidates concerned and as such the State Government was not competent to lay down further eligibility qualification for the candidates for being considered for admission in the post- graduate courses - both in the degree and diploma courses. It was contended that the State Government was not competent to lay down or prescribe the said qualification, which encroached upon the power of the Central Government as provided in Entry 66 of List 1 of the Seventh Schedule. It was also contended that entry 25 of List III of the Seventh Schedule to the Constitution is subject to the provisions of entry 66 of List I and as such the said Government Order being repugnant to the regulations made by the Medical Council and approved by the Central Government pursuant to Section of the Indian Medical Council Act, was invalid.25. It would be worthwhile to extract below what the Supreme Court held upon consideration of the aforesaid contentions:"20. The only question to be considered is whether the impugned order is repugnant to or encroaches upon or is in conflict with the power of the Central legislature to made laws in respect of matters specified in Entry 66 of List I of the Seventh Schedule to the Constitution. The Indian Medical Council pursuant to Section of the Indian Medical Council Act had made certain recommendations which have been embodied in the Regulations made by the Central Government laying down the criteria or standards for admitting the candidates to various post-graduate disciplines in the Medical Colleges of the State. These Regulations, as has been quoted hereinbefore, clearly prescribe that the candidates should be selected strictly on merit judged on the basis of academic record in the undergraduate courses i.e. MBBS Course and this selection should be conducted by the University. There are also other eligibility qualifications provided in the said Regulations namely the candidates must have obtained full registration i.e. they must have completed satisfactorily one year of compulsory rotating internship after passing the final MBBS examination and also they must have done one year's housemanship prior to admission to the post-graduate degree or diploma course.21. The impugned Government Order dated December 15, 1982 lays down the criteria or eligibility qualification i.e. obtaining of 55 per cent marks by candidates seeking admission in the post-graduate degree course and obtaining of 52 per cent marks by candidates seeking admission to postgraduate diploma course for being considered for selection. Entry 25 confers on the State Government as well as the State legislature the powers to make orders in respect of matters mentioned in Entry 25 of List III of the Seventh Schedule to the Constitution i.e. with regard to medical education the only limitation being that such order of the State legislature will be subject to the provisions of entry 66 of List I i.e. Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. The order in question merely specifies a further eligibility qualification for being considered for selection for admission to the post-graduate courses (degree and diploma) in the Medical Colleges in the State in accordance with the criteria laid down by Indian Medical Council. This does not in any way encroach upon the Regulations that have been framed under the provisions of Section of the Indian Medical Council Act. On the other hand in order to promote and further the determination of standards in institutions for higher education, the State Government who runs these colleges provide an additional eligibility qualification."“26. On a consideration of the aforesaid decisions we are unable to hold that the impugned order dated December 15, 1982 has in any way contravened or encroached upon the power of the Central legislature to make laws or the Central Government to make orders in regard to matters provided in Entry 66 of List I of Seventh Schedule to the Constitution. There is no conflict between the Regulations and also the order in question. The State Government by laying down the eligibility qualification namely the obtaining of certain minimum marks in the MBBS examination by the candidates has not in any way encroached upon the Regulations made under the Indian Medical Council Act nor does it infringe the Central power provided in the Entry 66 of List I of the Seventh Schedule to the Constitution. The order merely provides an additional eligibility qualification. We are in full agreement with the reasoning and conclusion of the High Court in this respect. This contention therefore, in our considered opinion, is without any merit.***"26. What emerges from the above is that even if there exists a central legislation providing eligibility criteria, the source whereof is an entry in List III of the Seventh Schedule, it would nevertheless be open to the State Government to issue executive instructions providing eligibility criteria in addition to those fixed by such central legislation which are not contrary to public policy or the object that the statute seeks to achieve, and which are definitely in public interest.27. Adverting attention to the MV Act and the WBMV Rules framed thereunder, it is found that the guidelines for grant of permits to operate auto rickshaws are few and far between. The MV Act, as noticed above, goes no further except Sections 7 and 74 in relation to the procedure for grant of contract carriage permits. Sections 95 and 96 of the MV Act authorize the State Government to frame rules for carrying out the purposes of the chapter in pursuance whereof the WBMV Rules have been framed. Rule 88 of the WBMV Rules confer power on the STA to frame polices to control and coordinate the matter of road transport subject to directions issued by the State Government and sub-rule (4) of Rule 120 thereof, introduced with effect from December 16, 200 , provides the special conditions of permit in respect of an auto rickshaw.28. These are the statutory provisions operating in the field, and it is the contention of the petitioners that anything beyond that would encroach upon legislative judgment. Sections 7 and 74 of the MV Act offer broad guidelines and cannot be construed as exhaustive numeration of all factors. Reliance placed on sub-rule (4) of Rule 120 of the WBMV Rules by Mr. Das, also appears to be misconceived. It provides for special conditions of a permit. Conditions can be attached to a permit only when a decision to grant permit is taken. Here the stage is pre-grant of permit and the concerned sub-rule does not aid the petitioners for resolution of the present controversy. What is left for consideration is Rule 88. The policy for controlling and coordinating the matter of road transport that the STA is entitled to frame in terms thereof is hedged with the condition that the same has to be in tune with the directions of the State Government. The RTAs, once such policy is framed, is also to regulate their functions and activities in a manner so that the same conform, inter alia, to the directions issued by the State Government. It follows, as a logical corollary, that without a direction of the State Government the STA is not empowered to frame any policy for controlling and coordinating road transport. The submission of Mr. Das that it is the function of the STA to frame policy for control and coordination of road transport is in ignorance of the condition precedent and does not advance the petitioners' cause. It is axiomatic that directions of the State Government in full measure in respect of the factors to be considered for grant of auto rickshaw permits were so long absent, which have been put in place by issuance of the impugned notification.29. Although auto rickshaws provide a cheap mode of public transport, the Court can certainly take judicial notice of auto rickshaws becoming of late a menace on roads. The drivers have scant respect for the rule of law and care less for the passengers carried on the vehicles. Accidents involving auto rickshaws resulting in death of pedestrians are now a regular feature. Although the auto rickshaws are covered by contract carriage permits, seldom do they operate as such. Instead, the auto rickshaws provide stage carriage services. Not only that, despite auto rickshaws in terms of the extant law not being permitted to carry more than three passengers, four or even more passengers are carried on the auto rickshaws for travel to their respective destinations and the law enforcement agencies choose to look the other way. It is absolutely clear that the auto rickshaw operators enjoy political patronage, which even dissuades the law enforcement agencies to act against their interest and allow them to go scot-free despite brazen violation of the provisions of the MV Act. A comprehensive policy for regulating orderly operation of auto rickshaws was long overdue and the impugned notification dated January 29, 2010 seems to me to be a step in the right direction.30. Apart from the fact of exercise of the executive power of the State in issuing the impugned notification to regulate the policy in respect of grant of auto rickshaw permits, which does not commend to me to be an act either upon assumption of authority which the law does not confer or in excess of the authority conferred, there is one other aspect that can never be lost sight of and that is the order dated January 5, 2010 of Hon'ble Tapen Sen, J. The State was bound to implement the direction contained therein. Assuming arguendo that the State exercised an authority which it never possessed or in excess of what has been conferred, the judicial order of this Court without anything more acts as the protective shield and insulates the impugned notification from being interfered with, so long the said judicial order is not wiped out of its existence.31. I have, therefore, no hesitation to repel the contention of the petitioners that the impugned notification suffers from lack of authority or competence.32. Next, I propose to examine whether the impugned notification is at all utltra vires the MV Act and, if so, to what extent.33. To appreciate the above point, each of the guidelines forming part of the impugned notification has to be tested on the anvil of the MV Act. Insofar as the restriction imposed on grant of new auto rickshaw permits on routes and areas falling within the jurisdiction of the KMA is concerned [guideline (1)], it is a reiteration of an earlier policy decision that was introduced vide notification dated August 6, 2004. Such condition is clearly in tune with the provisions of Section 74 of the MV Act and, therefore, valid. Guidelines ( ) and (4) are the mirror image of the anxiety of the State to disallow auto rickshaws to operate on national highways and state highways, except to the extent indicated therein. The risk of small vehicles operating on highways being involved in road accidents at the instance of unruly drivers of bigger vehicles having 4 or more wheels, who drive at breakneck speed even violating the speed limit fixed for each such category of vehicles, cannot be ruled out. Insofar as the business of operating transport vehicles that is permitted by the MV Act is concerned, the interest of the travelling passengers is the paramount consideration and the business interest of the operators providing stage carriage/contract carriage services must yield to the interest of the passengers. Question of the prospective operators of auto rickshaws earning less by reason of not being allowed to operate on highways is of no consequence and the restriction imposed in this behalf is a reasonable restriction on the right to carry on business having regard to clause (6) of Article 19 of the Constitution. I see no reason to hold that guidelines ( ) and (4) ought to be invalidated merely because the business interest of the operators is likely to suffer. Guideline (5), which permits restricted operation of auto rickshaws on existing bus routes on roads other than highways, is also one which has been thought of in the interest of the passengers. There is no blanket restriction regarding plying of auto rickshaws on bus routes but it would be restricted to 0%. Why the limit is not 20% or 40% is not a matter for judicial review; it is a matter of policy and the decision taken in this behalf does not suffer from Wednesbury unreasonableness. There is also nothing in guideline (6) to which exception can lawfully be taken. By reason of its dimensions, the stability of an auto rickshaw being a -wheeled vehicle is suspect. If the road conditions are bad, there is a likelihood of the same toppling over resulting in casualty. Safety and security of the passengers in such situation should be given top-most priority. The factor of congestion of road traffic, however, is not to be considered in isolation, but conjointly with road condition and safety and security of the passengers. Viewed from that angle, there can be no doubt that guideline (6) would provide adequate light to the RTAs in the matter of grant of permits to auto rickshaws, although the factor of congestion cannot be pressed in service in isolation to reject an application for permit in the absence of a notification issued under Section 74( ) of the MV Act. What remains is guideline (2) and it is the contention of Mr. Roy that the same contravenes Section 69 of the MV Act. First and foremost, none of the applications which have been rejected by the impugned resolutions sought for permits on inter-regional routes. Discussion on guideline (2) would, thus, be academic. However, since the point has been raised, I propose to deal with it. It is no doubt true that Section 69 of the MV Act provides general provisions regarding an application for permit on inter-regional routes. True it is, that the MV Act does not expressly restrict grant of a permit to an auto rickshaw in respect of an inter-regional route. But as has been noticed earlier, the MV Act hardly refers to an auto rickshaw. It is in the light of such position of the law that the validity of guideline (2) has to be examined. The power of the RTA to grant a contract carriage permit is traceable in Section 74 of the M.V. Act. In terms of sub-section (1) thereof, the RTAs are empowered to grant permits with such modifications as they deem fit. Clause (1) of sub-section (2) empowers the RTAs to attach conditions to the permits that the vehicles may be used only in specified areas or on specified routes. One cannot lose sight of the fact that public transport on long routes is provided by 4-wheeled or 6-wheeled buses or 4-wheeled maxi cabs/motor cabs. Having regard to the instability factor of an auto rickshaw referred to above, auto rickshaws are permitted to operate on short routes and, therefore, if the State Government has considered it necessary to impose a restriction in regard to operation of auto rickshaws confined to a particular region, the same does not, in my opinion, amount to a gross transgression of powers that the Court's interdiction would be warranted. The guidelines are intended to maintain passenger safety and security and that being the ultimate goal each stakeholder ought to play for, the impugned notification containing the guidelines appears to me to be unexceptionable.34. Before I end the discussion on the point, it is my duty to deal with the submission of Mr. Roy relating to rendition of Section 80 of the MV Act nugatory, if the impugned notification were upheld. Section 80 permits filing of an application for permit of any kind at any time. Decisions laying down the law are legion that in view of the liberalized policy relating to grant of permits under the MV Act, grant should be the rule and refusal the exception. It, therefore, follows that the RTAs are not denuded of the power to refuse an application if exceptional circumstances exist therefor. The impugned notification contains guidelines in the nature of restrictions that the RTAs ought to bear in mind while considering applications for permits. However, the liberty of prospective operators to file applications for permits of any kind "at any time" is not curtailed by the restrictive guidelines contained in the impugned notification. The mischief sought to be remedied by introducing Section 80(1) in the MV Act was to allow intending operators to apply for permits suo motu, even in the absence of any notification inviting applications for permits issued by a RTA. That right of an intending operator is not curtailed by the impugned notification. Consideration of an application for permit carries with it the obligation to examine the relevant laws on the subject and to order a grant, if no restriction in regard thereto is imposed. On the contrary, rejection of an application could be made referring to relevant provisions. My view is fortified by the decision of an Hon'ble Division Bench of this Court in State of West Bengal v. Kalyani Chakraborty : 2006 (1) CLJ (Cal) 37. The Bench was considering the propriety of an order passed by a learned single judge directing the concerned transport authority to issue offer letter in favour of the applicant for grant of auto rickshaw permit. Although the application for permit was rejected by a resolution dated October 5, 2001, the writ petition challenging such resolution was ultimately allowed on April 11, 2005, when admittedly the notification dated August 6, 2004 had come into force. Allowing the appeal of the State, it was ruled by the Hon'ble Division Bench as follows:"30. Considering all such facts and circumstances and having regard to the aforesaid discussion we are of the opinion that the respondent cannot be said to have unfettered right to get a permit for operating an Auto Rickshaw in the route for which application was made. The right under Section 74 of the Motor Vehicles Act, 1988 is also subject to reasonable restrictions. Such restrictions may emanate from various sources which include a subsequent change of situation arising out of too little space for too many vehicles, congestion, pollution, road conditions, public conveyance and so on and so forth.31. In our opinion, such a discretion was not intended to be taken away from the concerned Transport Authorities as that would only lead to an ocean of uncertainty and a state of functional disorder."35. The observations extracted supra apply on all fours in the present cases.36. The challenge to the impugned notification on all the grounds urged by the learned advocates for the petitioners, thus, fails and the impugned notification is upheld.37. I shall now proceed to deal with the writ petitions on merits and ascertain whether the terms of the impugned notification have been correctly applied or not by the concerned RTAs while rejecting the applications made by the petitioners for permits to operate auto rickshaws on the routes of their choice.38. The petitioners represented by Mr. Das, who had all applied before the RTA, Nadia for grant of auto rickshaw permits on the route Kalyani Station to Picnic Garden, an intra-regional route in the district of Nadia, can be divided into two sets. The first set of petitioners comprise of those who have presented W.P. 85 7(W) of 2012, W.P. 17749(W) of 2012, W.P. 17751(W) of 2012, W.P. 1775 (W) of 2012, W.P. 17755(W) of 2012, W.P. 17757(W) of 2012 and W.P. 17784(W) of 2012, whereas the second set comprise the different petitioners in W.P. 21111(W) of 2012, W.P. 21115(W) of 2012, W.P. 21117(W) of 2012, and W.P. 21120(W) of 2012.39. The RTA, Nadia considered the applications made by the first set of petitioners and rejected the same by identical resolutions dated October 24, 2011, reading as follows:"As the route applied for is within the jurisdiction of Kolkata Metropolitan Area, his application is not allowed in compliance with Notification No. 268-WT/ M-01/2010. But his case is considered sympathetically and after elaborate discussion it is decided that he may be allowed an auto rickshaw route permit outside Kolkata Metropolitan Area, if he applies within three months in this regard. He and six others applied for three months time for submission of fresh application of LPG Auto rickshaw route permit outside KMA."40. The second set of petitioners is aggrieved by identical resolutions dated April 2 , 2012, whereby their applications were rejected. One of such resolution reads as follows:"Heard, considered and not allowed as the route falls under KMA vide notification no. 268-WT/ M-01/2010 Pt. dated 29.01.2010."41. Although the effect of the resolutions dated October 24, 2011 and April 2 , 2012 are the same, the petitioners falling in the first set have been granted the liberty to apply for permits on areas/routes not falling within KMA. Such liberty is redundant, inasmuch as grant of permit on a route beyond the KMA is not prohibited unless the other five guidelines in the notification dated January 29, 2010 are attracted. On merits, it has been contended that except for the originating point i.e. Kalyani, which is within the jurisdictional limit of Kalyani Municipality, the rest of the route falls within panchayat area and, therefore, the restriction imposed by guideline (1) of the notification dated January 29, 2010 was not applicable. Moreover, despite similar restriction put in place by the earlier notification dated August 6, 2004, the RTA, Nadia had issued permits in favour of others for operating their auto rickshaws on routes falling within KMA.42. The first ground of challenge laid by the petitioners ought to be examined bearing in mind the definition of 'metropolitan area' in clause (c) of Article 24 -P of the Constitution. It reads as follows:"ARTICLE 24 -P. Definitions. - In this Part, unless the context otherwise requires, -******(c) Metropolitan area means an area having a population of ten lakhs or more, comprised in one or more districts and consisting of two or more Municipalities or Panchayats or other contiguous areas, specified by the Governor by public notification to be a Metropolitan area for the purposes of this Part;"43. Empowered by such provision of the Constitution, the Urban Development Department, Government of West Bengal issued notification dated June 26, 2001 describing the areas in the schedule appended thereto to be a 'metropolitan area' known as the Calcutta Metropolitan Area for the purposes of Part IXA of the Constitution. It appears on perusal of such notification that the entire area within the jurisdiction of Kalyani Municipality is included in the Calcutta Metropolitan Area. The petitioners have admitted that the originating point of the route in question i.e. Kalyani Station to Picnic Garden is within the jurisdictional limits of Kalyani Municipality and even according to their own admission, they are not entitled in law to contend that a part of the route on which permits were applied for is not within the KMA. The impugned resolutions cannot, therefore, be interdicted on this ground of challenge.44. The second ground of challenge is equally without merit. The petitioners are claiming negative equality. It is settled law that while considering the plea of an aggrieved person that he has been subjected to unequal treatment qua another and consequent claim of equal treatment, the Court ought to ascertain whether the treatment extended to the other and the relief granted to him, which is claimed by the person aggrieved, is in accordance with law or not. If an applicant for permit has been issued a permit allowing him to operate his auto rickshaw within the KMA even after issuance of the notification dated August 6, 2004, that could legitimately be branded an illegal act if justification therefor is not made available to the Court; however, the petitioners cannot claim an order from the Court to perpetrate an illegality. This contention also fails.45. There is no bar in law to apply for a permit on a route that does not attract any of guidelines (1) to (6) of the notification dated January 29, 2010. In normal circumstances, I would have dismissed the writ petitions granting liberty to the petitioners represented by Mr. Das to make fresh applications for permits, for being considered in accordance with law. However, since such petitioners have surrendered their employment exchange cards and in all likelihood have suffered substantial disability, I hold that their applications for permits shall stand revived and they shall be entitled to have their applications reconsidered. The RTA, Nadia shall call upon the petitioners for hearing by June 30, 2014 and enquire from them as to whether they propose to operate their auto rickshaws on any alternative routes not attracting any of the restrictions imposed by the several guidelines contained in the notification dated January 29, 2010. If any or all the petitioners are agreeable to have permits granted in respect of such routes and they comply with other formalities, they may be considered for grant of permits, in accordance with law. If none is so willing, the RTA, Nadia shall be free to reject the applications recording such unwillingness. Additionally, these petitioners shall be free to question post August 6, 2004 grants, whereby permits have been issued in favour of operators to ply their respective auto rickshaws within the KMA in accordance with law, if so advised.46. The writ petitions [W.P.85 7 (W) of 2012, W.P.17749 (W) of 2012, W.P.17751 (W) of 2012, W.P.1775 (W) of 2012, W.P.17755 (W) of 2012, W.P.17757 (W) of 2012, W.P.17784 (W) of 2012, W.P.21111 (W) of 2012, W.P.21115 (W) of 2012, W.P.21117 (W) of 2012 and W.P.21120 (W) of 2012], accordingly, stand disposed of.47. The petitioner, represented by Mr. Roy, had applied for an auto rickshaw permit on an intra-regional route (Rajmahal to S.D. Hospital) before the Regional Transport Authority, Burdwan (hereafter the RTA, Burdwan). The application was rejected on June 17, 2012 by adopting the following resolution:"The applicant was present at the time of hearing and was heard. Perused the case record along with the enquiry report. The case is rejected for violation of Notification No. 268-WT/ M-01/2010 Pt. I dated 29.01.2010 as the applied route is covering more than 0% of existing Bus-routes in roads other than NH/SHs."48. The decision making process leading to rejection of the petitioner's application for permit by the RTA, Burdwan does not appear to be lawful and is, thus, unsustainable. The RTA, Burdwan was discharging quasi-judicial duty while considering the application for permit. It ought to have mentioned in its resolution which particular bus route is sought to be overlapped in excess of 30%by the route on which the petitioner proposed to operate his auto- rickshaw. Certain facts and figures in regard to the length of the route proposed by the petitioner and the alleged existing bus route should have found place in the impugned resolution. In the absence of any such particulars, the Court is left guessing as to how the right of the petitioner could be determined adverse to his interest. I have no other alternative but to set aside the impugned resolution. It is ordered accordingly.49. The writ petition [W.P. 19227(W) of 2012] stands disposed of with a direction upon the R.T.A., Burdwan to reconsider the petitioner's application in accordance with law without any delay but positively within June 30, 2014. If the petitioner's application is rejected once again, the order must have the support of reasons. On the contrary, if the petitioner's application is granted, follow up steps shall be taken without any delay in accordance with law.50. Insofar as the petitioners represented by Mr. Sarkar are concerned, they had all applied for intra-regional permits for operating auto rickshaws before the RTA, Nadia. All such applications have been rejected on diverse dates, but with identical resolutions. The identical resolution of the RTA, Nadia adopted while rejecting the applications reads as follows:-"Heard the applicant. After taken into consideration the road condition, congestion of road traffic and safety and security of the passengers travelling in such -wheeled Auto-Rickshaw within the ambit and scope of the Motor Vehicles Act and rules framed thereunder, his application is not granted. (See notification no.268-WT/ M-01/2010 Pt. dated 29.01.2010)."51. I have no doubt in my mind that rejection of the petitioners' applications for permits by the RTA, Nadia is arbitrary and that the impugned resolutions are indefensible. Guideline (6) does not restrict grant of permit to operate an auto- rickshaw. What it says is that while granting an auto-rickshaw permit, the permit issuing authority is to consider the road condition, congestion of road traffic, and safety and security of the passengers within the ambit and scope of the MV Act and the rules framed thereunder. There is no discussion in the impugned resolutions with regard to the factors mentioned in guideline (6). While dealing with the applications for permits of each of the petitioners, it was imperative for the RTA, Nadia to indicate with some degree of clarity the impediments standing in the way of grant of permits. The RTA, Nadia could not have simply referred to the factors mentioned in guideline (6) and without anything more, reject an application for permit. Application of mind was necessary, which is conspicuously absent. The impugned resolutions of the RTA, Nadia, thus stand set aside.52. The writ petitions [W.P.1990 (W) of 201 , W.P.19906 (W) of 201 , W.P.19908 (W) of 201 , W.P.19910 (W) of 201 , and W.P.20957-2096 (W) of 201 ] stand disposed of with a direction upon the RTA, Nadia to reconsider the petitioners' applications in accordance with law as early as possible, but not beyond June 0, 2014. If any of the petitioners' applications is rejected once again, the order must have the support of reasons. On the contrary, if decisions to grant permits are taken, follow up steps in accordance with law shall not be unduly delayed.53. Mr. Mukherjee appeared for the petitioners in W.P 728 (W) of 2012, W.P. 8814 (W) of 2012, W.P. 92 6(W) of 2012 and W.P. 176 (W) of 2012, which are at the instance of 22 (twenty-two), 38 (thirty-eight), 61 (sixty-one) and 5 (five) petitioners respectively. It appears from the respective writ petitions that all the individual applications of the petitioners for grant of auto rickshaw permits on intra-regional routes in the district of Jalpaiguri have been rejected by the Regional Transport Authority, Jalpaiguri (hereafter the RTA, Jalpaiguri) by referring to the guidelines contained in the notification dated January 29, 2010. In case of some of the petitioners, guidelines (3), (4) and (5) have been invoked whereas in case of some others guideline (6) was considered as a bar for grant of permits. The challenge to the notification dated January 29, 2010 by more than one petitioner in a joint writ petition could be entertained and I have decided the point of legality and/or validity of the same. However, the petitioners are not entitled to move a joint writ petition and question the separate resolutions that were adopted by the RTA, Jalpaiguri while rejecting their respective applications for permits without paying individual court fees. Each of the petitioners has identical but independent cause of action. Their joint writ petition for setting aside the impugned resolutions could have been entertained, if they had paid separate court fees. That is also not the case here. Relying on the decision of the Supreme Court in Mota Singh v. State of Haryana : AIR 1981 SC 484, I hold the joint writ petitions, insofar as they seek to challenge the impugned resolutions rejecting the applications for permits, as not maintainable without payment of individual court fees for each of the several petitioners.54. These 4 (four) writ petitions [W.P 728 (W) of 2012, W.P. 8814 (W) of 2012, W.P. 92 6(W) of 2012 and W.P. 176 (W) of 2012] stand dismissed. However, the liberty of each of the petitioners to question the impugned resolutions by appropriate proceedings in accordance with law is reserved. 55. Insofar as W.P. 20477 (W) of 201 is concerned, the petitioners seek implementation of the notification dated January 29, 2010. Since the subject matter of this writ petition is different and it has wrongly been clubbed with the batch of writ petitions wherein legality and/or validity of the notification dated January 29, 2010 has been challenged, W.P. 20477 (W) of 201 stands de-tagged. Presently, I have no determination to hear the same. It is released from my list with liberty to the petitioner to move the appropriate bench having determination to hear it.56. Urgent certified copy of this judgment and order, if applied for, shall be furnished to the applicant at an early date.57. Photocopy of this judgment and order, duly counter-signed by the Assistant Court Officer, shall be retained with the files of all other writ petitions barring W.P.19227(W) of 2012.
"2014 (3) CalHN 227" == "2014 (4) WBLR 937,"