- (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 permit in respect of taxis and auto rickshaw; In addition to the conditions prescribed under the Act and the Central Motor Vehicles Rules, 1989 and these Rules, and following shall be treated as special conditions in all contract permits for taxis and auto rickshaw. (a) The driver shall not misbehave or be rude to the hirer or passenger in the event of any complaint of this nature, the permit will be liable to be cancelled suspended under Section 86 of the Act. (b) The driver will only charge the approved fare at the rate as per meter attached and any complaint of over charging of the fare shall render the permit to be suspended/cancelled. (c) The driver shall not refuse carry any passenger, whenever the taxi or auto rickshaw is empty and in a public place irrespective of whether the meter is down or in "for hire" condition, it shall be the burden of the owner or driver to prove that without adequate reasons he did not accept passenger. (d) The driver shall not run the vehicle as a "Shuttle Service" and thus violative the very principle of Contract Carriage. Explanation : "Shuttle Service" means plying of a vehicle in violation of principle of Contract Carriage, by carrying more than one individual under more than one contract written or implied, in a single journey by changing actual fair from such individual at the same rate or of different rates." 2.4 After amendment w.e.f. 16.12.2003, sub-rules (1) to (3) of Rule 120 are applicable only to taxis, while sub-rule (4) applies only to auto rickshaws. "120. Special condition of permit in respect of metered taxis.(1) (2) (3) (4) Special condition of permit in respect of autorickshaw (i) A contract carriage permit to be granted in respect of an autorickshaw on a specified or fixed route approved by the respective Regional Transport Authority subject to compliance of the provisions under the Motor Vehicles Act, 1988 and the rules framed thereunder. (ii) No auto-rickshaw shall be allowed to ply in any route other than the specified or fixed route allotted to it by the respective Regional Transport Authorities, violation of which is punishable under the Motor Vehicles Act, 1988. (iii) Fare for auto-rickshaw shall be fixed or determined by the State Government. Any complaint of overcharging of fare shall render the permit to be suspended/cancelled. (iv) The driver of auto rickshaw shall not misbehave or be rude to the passengers. In the event of any complaint of this nature, the permit will be liable to be cancelled/suspended under section 86 of the Motor Vehicles Act, 1988. (v) There shall be no metering system in the auto-rickshaw." 2.5 Aggrieved by the above amendment to the statutory rules, the appellants filed the writ petition challenging the legality of the above rule. The learned Single Judge upheld legality and validity of the rule and dismissed the writ petition, hence this appeal.
(3.) Mr. Kishore Dutta, learned counsel for the appellants reiterated the contentions raised before the learned Single Judge and submitted as under :- The permit granted for the purpose of operating the contract carriage cannot be converted into a stage carriage permit. Reliance is placed on the decision of this Court in Transport Authority Darjeeling & Ors. Vs. Brihattara Siliguri City Auto Operators Association & Ors.,2009 2 CalHN 389. On the basis of the provisions of Section 74(2)(viii) of the Motor Vehicles Act, 1988 it is contended that when the Act requires an auto rickshaw (covered by the definition of motorcab) to instal a taxi meter, the subordinate legislation cannot require that there shall be no metering system in the auto rickshaw, especially when the parent law is a State legislation and the subordinate legislation is made by the State Government. Sections 67 and 95 of the Motor Vehicles Act, 1988 do not permit or authorize the State Government to make the impugned amendment.;