Tripura High Court
Mr. R. Datta vs Mr. D. Bhattacharya on 22 December, 2021
HIGH COURT OF TRIPURA
AGARTALA
WP(C)No.203 of 2021
For Petitioner(s) : Mr. R. Datta, Adv.
For Respondent(s) : Mr. D. Bhattacharya, G.A.
Ms. N. Chakma(Saha), Adv.
HON'BLE MR. JUSTICE S. TALAPATRA
Order
22/12/2021
Heard Mr. R. Datta, learned counsel appearing for the petitioner as
well as Mr. D. Bhattacharya, learned G.A. assisted by Ms. N. Chakma(Saha),
learned counsel appearing for the respondents.
2. The grievance of the petitioner falls within a short compass. By
means of this writ petition, the notification dated 15.10.2018 [Annexure-5 to the
writ petition] has been challenged. That apart, Rule 68(d) of Tripura Motor
Vehicles Rules, 1991 being ultra vires the Motor Vehicles Act, 1988 has also been
challenged. Further, the petitioner has urged this Court for directing the
respondents to accept the documents of the petitioner and to issue permit in
respect of her Auto Rickshaw bearing registration No.TRT-1770.
3. Mr. R. Datta, learned counsel appearing for the petitioner has
submitted that the similar controversy has been settled by this Court by the
judgment dated 13.03.2020 delivered in WP(C)No.1193 of 2019 titled as Sri
Govinda Chandra Shil versus The State of Tripura and Others. In the said
judgment, having elaborately discussing Section 80 of the Motor Vehicles Act,
1988 and other relevant provisions, it has been observed as under:
[16] The second proviso below sub-Section 2 of Section 80 of the
Motor Vehicles Act further postulates that where a Regional Transport
Authority, State Transport Authority or any prescribed authority
referred to sub section (1) of Section 66 refuses an application for
grant of permit of any kind under this Act, he shall give to the
applicant, in writing, its reasons for refusal of the same afford and
opportunity of being heard in this matter.
[17] Mr. Bhattacharjee, learned GA has therefore submitted for
purpose of implementing this part of the Act (vide Section 80 of the
Motor Vehicle Act), the State government can acquire competence
under Section 96 (2)(xxxiii) of the Motor Vehicle Act, 1988. Therefore,
the state inheres jurisdiction to frame the rule in the form of Rule
68(d) of the Tripura Motor Vehicles Rules, 1991. However, Mr.
Bhattacharjee, learned GA has submitted that the court may permit
the respondents to take the decision in accordance with the law in
respect of replacement as prayed by the petitioner and other similarly
situated persons. Since, no such decision has been taken, it cannot be
assumed that Rule 68 (d) of the Tripura Motor Vehicle Rules, 1991 has
been given effect to.
[18] In view of the above statement and reserving the right in favour
of the petitioner to challenge the said Rule 68(d) of the Tripura Motor
Vehicle Rules,1991 in future, this writ petition is being disposed of by
the following direction. The respondents, particularly the State
Transport Authority shall consider the prayer of the petitioner made
under Section 80, Motor Vehicles Act, 1988. While taking such
decision, the respondents shall consider that Rule 68 (d) of the Motor
Vehicles Act, as incorporated by way of amending the principal Act,
has not been given any retrospective operation and the petitioner has
the right under Section 83 to Page 11 of 12 get the replacement
subject to the permission of the State Transport Authority. In GT
Venkataswamy Reddy vs. State Transport Authority and others
reported in (2016) 8 SCC 402, the apex court had occasion to observe
in respect of the similar challenge as under:
"Once things get frozen, the frozen stage can be
changed only by way of a permitted process.
when by virtue of of the Act, the permit stood
frozen, as on the date the scheme was
published, then, if the said frozen stage is to be
altered or modified, the provision by which such
modification or alteration can be effected can
be only by applying which is the legally
permissible manner in which such frozen stage
can be altered or modified. Any other manner in
which the said frozen stage is sought to be
altered or modified, that is totally prohibited
under the statutory provisions. Therefore, if
under the scheme, if the permit gets frozen,
within the prescriptions contained under the
scheme and if a variation is to be considered for
that permit either by way of increase in the
number of trips or addition of vehicle without
any modification or alteration effected .. it will
be wholly prohibited under the provisions ...
such variation applied for can never even be
considered by any of the authorities. That will
be the consequential effect of the referred
section in GT Venkataswamy Reddy."
[Emphasis added]
"[19] What we have observed that in view of giving effect to Rule
68(d) of the Tripura Motor Vehicle Rules, no express transitional
provisions have been provided in the said rules. But we will not make
further observations in view of the direction as narrated.
Having observed thus and without any observation on the merit
of the challenge, the respondents are directed to consider the
application of the petitioner for replacement within 30(thirty) days
from the day when a copy of this order would be made available to the
respondents. It is needless to say if the petitioner is aggrieved by any
action of the respondents, he will be at liberty to approach this court
again. Even he would be allowed to challenge constitutionality and
legality of Section 68(d) of the Tripura Motor Vehicles Rules, 1991, if
that is found essential in the changed circumstances.
4. Mr. Datta, learned counsel has further submitted that the above
judgment has been implemented by the respondents.
5. Mr. D. Bhattacharya, learned G.A. appearing for the respondents has
submitted that without approaching the competent authority, the petitioner has
straightway moved to this Court seeking reliefs as noted above. The petitioner
may file the appropriate prayer for granting the permit to her vehicle and that will
be considered by the competent authority in terms of the provisions of law.
6. There is sufficient force in the submission of Mr. D. Bhattacharya,
learned G.A. appearing for the respondents. Hence, the petitioner is directed to
file a prayer for granting permit for her vehicle. For that purpose, all the relevant
documents will be submitted by the petitioner along with the said prayer for
consideration by the competent authority. The State Transport Authority shall
dispose of such representation/prayer within a period of fifteen days from the date
when such prayer will be received by them having strict regard to the observation
made by this Court in the judgment dated 13.03.2020 [Sri Govinda Chandra
Shil versus The State of Tripura and Others]. If the petitioner is aggrieved by
any action of the respondent or the authority, the petitioner may seek remedy of
her grievance and for that, estoppel shall not operate against her.
In terms of the above, the writ petition stands disposed of.
No order as to costs.
JUDGE
Sabyasachi B
