Sinha, J. - (1.) The facts in this case are shortly as follows:-- Till about the middle of the year 1952 there were in Calcutta, about 1,200 taxi cabs of not less than 22 Horse Power and not above 30 Horse Power. These are hereinafter referred to as "Big taxies". In that year the State Government of West Bengal decided to put on the streets of Calcutta, smaller taxi cabs with lower tariff rates, and accordingly in May, 1952 the R.T.A. Calcutta Region invited applications for issue of permits in respect of motor vehicles not below 10 horse Power and not above 19 horse Power, with tariff rates fixed at annas -|8|- for the first mile or part thereof and annas -|2|- for every quarter of each subsequent mile, which was considerably lower than the tariff which was being charged for the big taxies. It is alleged in the petition that the Government wished to make this change with a view to solve partially the unemployment problem of middle class families of West Bengal. This however is not admitted. The Calcutta Taxi Association and the Bengal Taxi Association, whose members are big taxi owners, vehemently opposed the introduction of small taxi cabs, hereinafter referred to as 'Baby taxis' apprehending that the introduction of Baby taxis with lower tariff rates would put them out of business. In the first instance objection was raised before the R.T.A. Calcutta Region, but the same was over-ruled. Thereafter, certain members of the said associations, who were permit-holders in respect of big taxis, moved this Court under Article 226 of the Constitution, on or about the 24th October, 1952 for the issue of appropriate writs etc. directing the R.T.A. Calcutta Region and the State of West Bengal, to forbear from giving effect to the Notification No. 5518 W.T. dated the 7th June, 1952. The said Rule came up for hearing before Bose, J., who by his judgment, dated the 9th January, 1953, discharged the Rule. The petitioners in the said application preferred an appeal to the Supreme Court. On the 24th November, 1953, the appeal was dismissed by the Supreme Court and the judgment of Bose, J. was upheld, save and except that their Lordships of the Supreme Court did not agree with the view of Bose, J., that it was not open to the big taxi owners to charge fares at lower rates than that described in Rule 179 of the Bengal Motor Vehicles Rules. The next step taken by the Calcutta Taxi Association was to reduce their tariff rates in respect of big taxis from the existing rates, to annas -|8|- for the first mile or part thereof and annas -|2|- for every quarter of each subsequent mile. The Bengal Taxi Association however reduced their tariff to annas -|12|- for the first mile or part thereof and annas -|2|- for every one fifth part of each sub-sequent mile. The R.T.A. Calcutta Region was of the opinion that this lack of uniformity in tariff rates would cause inconvenience to the general public and by order, dated the 30th December. 1952 fixed an uniform tariff rate for big taxis at annas -|12|- for the first mile or part thereof and annas -|2|- for every one fifth part of each subsequent mile. The existing tariff rates of baby taxis was not disturbed. Against this decision, the Calcutta Taxi Association preferred an appeal before the Appellate Sub-Committee of the S.T.A. In this appeal the other parties were not represented The S.T.A. allowed the appeal and reduced the tariff rates not only of big taxis but also of baby taxis. Thereupon, owner of baby taxis made several applications to this Court under Article 226 of the Constitution. In. C.R. Nos. 1890, and 1925 of 1954, I was able to effect a compromise between the parties and the reduction to tariff rates so far as baby taxis were concerned, was set aside. The next position is that big taxis have reduced their tariff rates but are still charging more than the baby taxis. We now come directly to the circumstances which have given rise to this application. It appears that some of the owners of big taxis desired to replace their larger vehicles by baby taxis. They have made the requisite application to the R.T.A. Calcutta Region and some of these applications have been granted and others are likely to be granted in the near future. It is stated in the petition that being foiled of their attempt to put the baby taxis off the road, the owners of the big taxis have now formulated a plan to replace their big taxis by baby taxis which will necessarily give rise to a keen competition in which case the original object of the introduction of baby taxis, namely the supporting of middle class families of West Bengal, would stand frustrated. I have already mentioned above that it is not admitted that the baby taxis were introduced with that object. In fact, an affidavit has been filed on behalf of the R.T.A. Calcutta Region, (Respondent No. 2) affirmed by its Secretary Kalyan Bhusan Chakravarti on the 22nd July, 1955, in which it is not admitted that there exists any ground for apprehension that there will not be two kinds of taxi cabs on the road or that the interests of the owners of the small taxi cabs will be vitally affected by such replacements or that there would be an unhealthy and unfair competition. It is stated that the present policy of the R.T.A. was to grant replacement tempered with selection. On the 23rd April, 1955, the Secretary of the Calcutta Small Taxi Association, which is an association in respect of baby taxis, wrote to the Secretary, R.T.A. Calcutta Region protesting against the replacement of big taxis by baby taxis, and pointed out that under the provisions of the Motor Vehicles Act (Section 59, Sub-Section 2) replacement of a particular vehicle can only be done as per terms of a particular permit, and the replacement by a vehicle of different type and capacity infringes the terms of a permit. It is further stated that such replacement should not have been ordered ex parte and a request was made to stop further replacement. On the 17th May, 1955, a reply was sent to this letter wherein it was stated that under Rule 81(a) of the Motor Vehicles Rules 1940 the R.T.A. could vary the permit or any of the conditions thereof.
(2.) This Rule was issued by Bose. J., on the 22nd June 1955, calling upon the opposite parties to show cause why a writ in the nature of Mandamus should not issue to them directing them to forbear from permitting replacements of big taxi cabs by small taxi cabs and also to withdraw the orders of replacements already issued and or why a writ in the nature of Prohibition should not issue prohibiting the opposite parties from permitting such replacements or why such further or other orders or orders should not be made as to this Court may seem fit and proper. Ad interim injunction was also granted as prayed. I might mention here that the Calcutta Taxi Association and the Bengal Taxi Association have not been made party respondents but it was directed that copies of the Rule will be served upon them. They have now entered appearance and are opposing this application.
(3.) The argument of Mr. Choudhury appearing on behalf of the petitioner is as follows:- He has pointed out Sections 49, 50, 57 (1), 57 (6) and 59 (2) and 64 of the Motor Vehicles Act and Rule 81 (a) of the Motor Vehicles Rules. He has argued that under Section 49 an application for a permit in respect of a contract carriage relates to a particular motor vehicle and the permit granted is in respect of a particular motor vehicle. He argues that if it is a question of primary application for such a permit, then the provisions of section 50 had to be complied with. In such a case, some kind of notice must issue to all the parties interested, that is to say, the parties who have been given the right under that section to make representations, to enable them to make such representations and that an original permit can only be granted after hearing such representations. The next point is that under Section 59(2) a replacement of an existing motor vehicle can be permitted only if the vehicle in question is replaced by another vehicle of the same nature and capacity. According to Mr. Choudhury, this provision impliedly forbids the grant of replacement by a motor vehicle of a different nature and capacity. If the present grant is a grant of an original permit, Mr. Choudhury argues that the procedure laid down under section 50 had not been complied with. On the other hand, if it is a replacement, then Mr. Choudhury argues, it is a replacement which is not authorised by Section 59 (2). He points out that the only excuse shown by the R.T.A. for issuing the permits is Rule 81 (a) namely, that it was open to the R.T.A. at its discretion to vary the permit or any of the conditions thereof. Mr. Choudhury points cut that replacement of a vehicle by another of a different capacity is not varying the permit but changing the permit to another kind. He argues that the power to vary the permit or any condition thereof was not meant to contravene the provision of Section 59 (2). If it was meant to contravene Section 59(2), the Rule will be had as being ultra vires of the Statute, since Rules made under Section 68 were only for the purpose of carrying into effect the provisions of Chapter IV of the Motor Vehicles Act, and not to make provisions inconsistent therewith.;