Calcutta High Court (Appellete Side)
Asansol Mini Bus Association And ... vs Union Of India And Others on 18 May, 2022
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
W.P.A. No.11662 of 2021
IA No: CAN 1 of 2022
Asansol Mini Bus Association and others Bareja
Vs.
Union of India and others
For the petitioners : Mr. Durga Prasad Dutta,
Mr. Souvik Sen
For the State : Mr. Amal Kumar Sen,
Mrs. Ashima Das (Sil)
Hearing concluded on : 13.05.2022
Judgment on : 18.05.2022
Sabyasachi Bhattacharyya, J:-
1. The writ petitioner nos.1 and 3 are Bus and Minibus Operators'
Associations and the other petitioners are the respective Secretaries
thereof. The writ petition has been filed seeking the operators'
right/authority in the matter of determination, fixation and/or
regulation of fares and freights of stage carriages, in a manner
proportionate to hike of the market price of fuel prevailing at the
relevant point of time.
2. Learned counsel for the petitioner argues that the respondent-
Authorities ought to ensure that the structure of the Bus fares bears a
parity with the fuel price.
3. With the recent hike infuel prices, it is alleged that the petitioners are
on the verge of being out of business. It is argued that heavy loss is
being suffered by the Associations on a day-to-day basis in view of the
rising fuel prices, which is not being matched by an equal rise in the
fare structure.
4. Several families of employees and operators associated with plying of
buses shall also suffer immeasurably in the event the Associations
and the Operators close business.
5. Learned counsel argues that the provisions of Section 67 of the Motor
Vehicles Act, 1988 (hereinafter referred to as "the 1988 Act") ought to
be read down to give a handle to the bus operators to have a say in
the fixation of fare structures. Section 67(2) of the 1988 Act, it is
argued, provides that any direction under sub-section (1) of the said
Section regarding the fixing of fares and freights for stage carriages,
contract carriages and goods carriages may provide that such fares or
freights shall be inclusive of the tax payable by the passengers or the
consignors of the goods, as the case may be, to the operators of the
stage carriages, contract carriages and goods carriages under any law
for the time being in force relating to tax on passengers and goods.
6. It is argued that the powers of the State Government to control road
transport, apart from having regard to the specific yardsticks as
stipulated in Section 67(1), should also take into consideration the
fluctuation of fuel prices.
7. In fact, it is contended that Section 67(1) is flexible enough to be read
down by the Court to represent the interest of the operators as well.
8. Learned counsel for the petitioners cites a Five-Judge Bench decision
of the Supreme Court, reported at JT 1990 (3) SC 725 [Delhi Transport
Corporation Vs. DTC Mazdoor Congress and others], in support of his
proposition in respect of reading down of statutes.
9. Learned counsel appearing for the respondent-Authorities submits
that matters of excise duty and revenue are policy matters, to be
determined by the State and ought not to be interfered with by Courts
under normal circumstances.
10. In support of such proposition, learned counsel cites a Two-Judge
Bench decision of the Supreme Court in Mangalam Organics Limited
Vs. Union of India [(2017) 7 SCC 221].
11. Upon hearing learned counsel for the parties, it is evident that the
proposition as to reading down a statue was laid down by Sabyasachi
Mukharji, CJI in a dissenting opinion in Delhi Transport Corporation
(supra).
12. The majority decision in the said case, however, was rendered in the
circumstances of the case, thereby striking down the vires of the law
challenged therein.
13. However, the premise of consideration in the said judgment was the
violation of natural justice and Article 14 of the Constitution of India,
in respect of termination without giving opportunity of showing cause
to the concerned employee.
14. As opposed to the said case, the present writ petitioners have claimed
a 'reading down' of Section 67 of the 1988 Act, which does not have
any direct nexus with the object and purpose of the said Act.
15. The 1988 Act, in its statement of objects and reasons, takes into
account consolidation and amendment of the law relating to motor
vehicles, factoring in various criteria such as changes in the road
transport technology, pattern of passenger and freight movements,
development of the road network in the country and improved
techniques in the motor vehicles management.
16. That apart, in the present case, the privilege sought by the petitioners
for the operators of motor vehicles in having a say in the fixation of
fare structure has to be balanced with the convenience of the huge
number of passengers and consignors who use the road transport
network regularly for travelling and transporting goods.
17. That apart, the domain of fixation of taxes in public transport is
squarely within the authority of the executive and pertains to policy
decisions of the Governments, both at the State and the Central level.
18. Judicial interference, under normal circumstances, is not warranted,
unless the very Constitutionality of the statutes are hit and/or the
statues-in-question are in direct contravention of public policy or the
like.
19. In the present case, there is nothing in the scheme of the 1988 Act to
divest the State Government of the power vested in it to control road
transport and to determine the fare structure, as a necessary corollary
thereof. Sub-section (2) of Section 67 categorically indicates that
directions of fixation of evidence and freights for carriages - stage,
contract and goods - "may" provide that such fares or freights shall be
inclusive of the taxes payable by the passengers or consignors to the
operators.
20. However, such discretionary power of the State cannot be enforced at
the whim of the operators, whose primary interest would be to earn
profits from their business.
21. It is for the State, according to its policy decisions, to balance the
equities between the interest of the passengers/consignors and
owners/operators, to strike the right chord insofar as the business
interest of the operators is not hampered on the one hand and on the
other, that the interest of the common citizens is not affected
adversely.
22. In the event the operators have a hand in the determination of
freights/fares, the very purpose of regulation of such fares and
freights will be frustrated, inasmuch as the motivating factor for the
operators would be profits, as opposed to the interest of the
consumers.
23. In a welfare state, like the Indian democracy, it is also the duty of the
Governments to protect the interest of the common citizens.
24. Any alternative interpretation of Section 67 thanits plain meaning
would operate to the detriment of the masses and be contrary to the
intendment of the statute.
25. That apart, as laid down in Mangalam Organics Limited (supra),
revenue and excise duty matters pertain mostly to the policy of the
Government and ought not to be interfered with judicially at the drop
of a hat.
26. The ratio laid down in Delhi Transport Corporation (supra) is not
applicable to the present case at all in view of the gross differences
between the facts of the two cases. In Delhi Transport Corporation
(supra), a question arose as regards the violation of tenets of natural
justice and Article 14 of the Constitution of India. In the present case,
neither the legality nor theConstitutionality of the relevant provisions
of the 1988 Act have been put under the scanner. Hence, there is no
scope of interference in the writ petition.
27. Accordingly, W.P.A. No.11662 of 2021,and consequentially CAN No.1
of 2022, are dismissed on contest, without any order as to costs.
28. Urgent certified copies of this order shall be supplied to the parties
applying for the same, upon due compliance of all requisite
formalities.
( Sabyasachi Bhattacharyya, J. )
