IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.01.2008 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.22233 of 2003 S.Saleem Sait ... Petitioner vs. 1. The Regional Transport Officer, Madurai (South) Madurai-10. 2. The State Transport Appellate Tribunal, High Court Complex, Chennai-104. 3. The Secretary, State of Tamil Nadu, Home (Transport VI) Department, Fort St. George, Chennai-9. ... Respondents Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari to call for the records relating to G.O.Ms.No.277, Home (Transport VI) Department, dated 22.03.2001 issued by the third respondent and quash the portion of G.O., limiting the grant of share auto permits to 50 permits for each district headquarters in so far as the petitioner is concerned. For Petitioner : Mr.K.Hariharan For Respondents : Mr.A.Arumugam Addl. Govt. Pleader O R D E R The petitioner has sought a Writ of Certiorari to quash the order of the third respondent in G.O.Ms.No.277, Home (Transport VI) Department, dated 22.03.2001 and for further orders. 2. Brief facts leading to the Writ Petition are as follows: The petitioner submitted an application dated 21.03.2002, for grant of share Auto permit to the Regional Transport Officer, Madurai (South), first respondent herein and the said application was returned stating that the quota had already exhausted and there was no vacancy for grant of permit. Aggrieved by the same, the petitioner has preferred an Appeal No.424 of 2002 on the file of the State Transport Appellate Tribunal, Chennai, second respondent herein and the said appeal was pending. Being aggrieved by the ceiling limit of 50 permits, for each District Headquarters, the petitioner has filed the present Writ Petition. 3. Referring to Sections 71, 73, 74 and 80 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act"), Mr.K.Hariharan, learned counsel for the petitioner submitted that the State Government has no jurisdiction to restrict the number of share auto permits in any district headquarters and for such restriction, there must be a specific direction by the Central Government as per Section 73(3)A of the motor Vehicles Act. Placing reliance on the decisions in Shiv Raj v. State of Rajasthan reported in AIR 1992 Rajasthan 99, Mira Sur v. State of West Bengal reported in AIR 1994 Calcutta 212 and Mithilesh Garg v. Unition of India, reported in AIR 1992 SC 443, learned counsel for the petitioner further submitted that once the State Government has come out with the liberlised policy of permitting five seater Autos, there cannot be any restriction in the number of permits of such vehicles and having regard to the interest of the travelling public, the restriction would be arbitrary and against the provisions referred to above. He further submitted that by fixing a maxium ceiling limit, the petitioner's fundamental right to engage in Motor Trade, is violated. 4. On the other hand, Mr.A.Arumugam, learned Additional Government Pleader, relying on Section 67 of the Motor Vehicles Act, submitted that the Government has got ample powers to restrict the number of permits, taking into consideration the need of the public and other factors specified in that Section. Heard the counsel appearing for the parties and perused the materials available on record. 5. Section 67 of the Act deals with the power of the State Government to control road transport and it reads as follows: "(1) A State Government, having regard to- (a) the advantages offered to the public, trade and industry by the development of motor transport, (b) the desirability of co-ordinating road and rail transport (c) the desirability of preventing the deterioration of the road system, and (d) the desirability of preventing uneconomic competition among holders of permits, may, from time to time, by notification in the Official Gazette, issue directions both to the State Transport Authority and Regional Transport Authority- (i) regarding the fixing the fares and freights (including the maximum and minimum in respect thereof) for stage carriages, contract carriages and goods carriages: [.....] (ii) regarding the prohibition or restriction, subject to such conditions as may be specified in the directions, of the conveying of long distance goods traffic generally, or of specified classes of goods by goods carriages; (iii) regarding any other matter which may appear to the State Government necessary or expedient for giving effect to any agreement entered into with the Central Government or any other State Government or Government of any other country relating to the regulation of motor Transport generally, and in particular to its co-ordination with other means of transport and the conveying of long distance goods traffic: Provided that no such notification in respect of the matters referred to in clause (ii) or clause (iii) shall be issued unless a draft of the proposed directions is published in the Official Gazette specifying therein a date being not less then one month after such publication, on or after which the draft will be taken into consideration and any objection or suggestion which may be received has, in consultation with the State Transport authority, been considered after giving representatives of the interests affected an opportunity of being heard. (2) Any direction under sub-section (1) 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 or goods carriages under any law for the time being in force relating to tax on passengers and goods." 6. Section 69 of the Act deals with general provisions as to application for permits. The application for a permit in respect of stage carriage has to be submitted as per Section 70 of the Act. Section 71 of the Act contemplates the procedure to be followed by the Regional Transport Authority in considering the application for stage carriage and permits are granted as per Section 72 of the Act. In so far as grant of contract carriage permits, the application for such permit has to be made as per Section 73 of the Act and permits are granted under Section 74 of the Act. The procedure in applying for grant of permit of any kind is set out in Section 80 of the Act. 7. The main thrust of the argument of the learned counsel for the petitioner is that as the State Government has not formulated any scheme for contract carriage, viz., five seater share Autorickshaws, the State Government has no jurisdiction to restrict the number of share Auto permits and having regard to the number of vehicles, road condition and other relevant matters, unless there is a direct from the Central Government, direct the State Government cannot issue any order or direction restricting the number of vehicles. 8. By G.O.Ms.No.1492, Home , dated 30.10.1998, the Government permitted the plying of 100 five- seater autos (VIKRAM) in Chennai City manufactured by Scooters India Limited, a Government of India Enterprise. The Transport Commissioner in his letter dated 14.10.2000, has recommended that the 50 more permits for five-seater autos may be be given to each Regional Transport Officer, in Chennai and 50 each for district headquarters, considering the public need. The Commissioner of Police has also agreed to the proposal of the Transport Commissioner. 9. The Government, after examing the proposal of the Transport Commissioner, considered that as far as Chennai City is concerned, it would be sufficient that if another 100 five-seater Autos to be permitted instead of 50 additional permits. The Government further observed that in respect of district headquarters, 50 five-seater autos can be considered and accordingly, issued orders in G.O.Ms.No.277, Home (Transport-IV) Department, dated 22.03.2001, directiing that 100 additional auto permits for five-seater autos in Chennai City and 50 each other Regional Transport Offices in district headquarters be allowed. The Transport Commissioner was also requested to take suitable action accordingly. 10. Let me now consider some of the decisions cited by the learned counsel for the petitioner on the issue. 11. In Shiv Raj v. State of Rajasthan reported in AIR 1992 Rajasthan 99, the petitioners, who were existing stage carriage operators plying on the routes, apprehended that the respective Regionial Transport Authorities would grant limitless number of stage carriage permits on the route, on which the petitioners were operating, as under Section 80(2) of the Act, a direction was issued to the respective Regional Transport Authorities not to ordinarily refuse to grant an application for permit "on any ground made for it at any time". Considering the submission of the parties, with reference to Section 67 of the Act r/w. Section 71 Sub-Clause (3) of the Act, the Rajesthan High Court held as follows: "The Act, as it stands today, does not contain any provision authorising the State Government to issue directions in this matter, and therefore, it will amount to invading the domain of exercising the judicial powers of the State Transport Authority or the Regional Transport Authorities. The direction can be issued by the State Government only in the field covered by Section 67 and not in each and every matter and to interfere in the area left over to the S.T.A., and the Regional Transport Authorities. Thus, S.6 of the Motor Vehicles Act of 1988 does not comprehend within its scope the power to issue directions for fixing the limit or the scope for issuing stage carriage permits on the routes in question. The direction can be issued only for the purpose for which the statute has made the provisions." 12. In Mira Sur. v. State of West Bengal reported in AIR 1994 CALCUTTA 212, the rejection of the application for the stage carriage permits by the State Transport Authority on the ground that the route is adequately served by the State Transport Corporation as well as the existing private operators and it would also cause unhealthy congestion on the route, was challenged. The Calcutta High Court, at Paragraph 8, held as follows: "The main purpose of introducing sub-section (3)(a) of Section 71 is to provide a measure for avoiding unhealty congestion on city routes in thickly populated towns. Such measure however can be taken only under the direction of the Central Government and not otherwise. The legislature did not at all empower even the Central Government or any authority whatsoever to limit the number of stage carriages on other routes not being city routes in towns with a population of not less than five lakhs. A Transport Authority cannot assume jurisdiction to refuse permit on the ground of congestion on a route in respect of which even the Central Government has not been empowered to direct for limiting the number of stage carriages on ground of congestion or on the route in respect of which the Central Government in spite of being so empowered has limiting the number of stage carriages. Transport Authority being itself a creature of statute cannot override the statute and usurp jurisdiction defying the statute, defying the Parliament that made the statue. Legislature will take care of the problem of congestion in future if so considered necessary, but present the legislature has not chosen to give any power in this respect to the Government, far less to Transport Authority beyond what has been provided in Section 71(3)(a)." 13. In Mithilesh Garg v. Union of India reported in AIR 1992 SC 443, the liberalization for private sector operations in the Road Transport field under Section 80 and other provisions of the Motor Vehicles Act, 1988 was challenged by the existing stage carriage operators primarily on the ground that they have been adversely affected in the exercise of their rights under Articles 14 and 19 of the Constitution of India. The Supreme Court at Paragraphs 10 and 11, held as follows: "10. Article 19(1)(g) of the Constitution of India guarantees to all citizens the right to practice any profession, or to carry on any occupation, trade or business subject to reasonable restrictions imposed by the State under Article 19(6) of the Constitution of India. A Constitution Bench of this Court in Saghir Ahmad v. State of U.P., (1955) 1 SCR 707:(AIR 1954 SC 728) held that the fundamental right under Article 19(1)(g) entitles any member of the public to carry on the business of transporting passengers with the aid of the vehicles. Mukherjea, J. speaking for the Court observed as under (at p.735 of AIR): "Within the limits imposed by the State regulations any member of the public can ply motor vehicles on a public road. To that extent he can also carry on the business of transporting passengers with the aid of the vehicles. It is to this carrying on of the trade or business that the guarantee in Article 19(1)(g) is attracted and a citizen can legitimately complain if any legislation takes away or curtails that right any more than is permissible under clause (6) of that article." It is thus a guaranteed right of every citizen whether rick or poor or take up and carry on, if he so wishes, the motor transport business. It is only the State which can impose reasonable restrictions within the ambit of Article 19(6) of the Constitution of India. Sections 47(3) and 57 of the Old Act were some of the restrictions which were imposed by the State on the enjoyment of the right under Article 19(1)(g) so far as the motor transport business was concerned. The said restrictions have been taken away and the provisions of Sections 47(3) and 57 of the old Act have been repealed from the Statute Book. The Act provides liberal policy for the grant of permits to those who intend to enter the motor transport business. The provisions of the Act are in conformity with Article 19(1)(g) of the Constitution of India. The petitioners are asking this Court to do what has chosen not to impose any restriction under Article 19(6) of the Constitution of India in respect of motor transport business and has left the citizens to enjoy their right under Article 19(1)(g) there can be no cause for complaint by the petitioners. 11. On an earlier occasion this Court dealt with somewhat similar situation. The Uttar Pradesh Government amended the old Act by the Motor Vehicle (U.P. Amendment) Act, 1972 and inserted Section 43A. The new Section 43-A apart from making certain changes in Section 47 of the old Act also omitted sub-section (3) of Section 47 of the old Act. Section 43-A provided that in case of non nationalised routes, if the State Government was of the opinion that it was for the public interest to grant permits to all eligible applicants it might, by notification in the official gazette issue a direction accordingly. The necessary notification was issued with the result that the transport authorities were to proceed to grant permits as if sub-section (3) of Section 47 was omitted and there was no limit for the grant of permits on any specified route within the region. Section 43-A and the consequent notification was challenged by the existing operators before the Allahabad High Court. The High Court dismissed the writ petitions. On appeal, this Court in Hans Raj Kehar v. State of U.P., (1975) 2 SCR 916: (AIR 1975 SC 389) dismissed the appeal. Khanna, J. speaking for the Court held as under (paras 6 and 8 of AIR): "It hardly need much argument to show that the larger number of buses operating on different routes would be for the convenience and benefit of the travelling public and as such would be in the public interest. Any measure which results in larger number of buses operating on various routes would necessarily eliminate or in any case minimize long hours of waiting at the bus stands. It would also relieve congestion and provide for quick and prompt transport service. Good transport service is one of the basic requirements of a progressive society. Prompt and quick transport service being a great boon for those who travel, any measure which provides for such an amenity is in the very nature of things in the public interest...... The contention that the impugned notification is violative of rights of the appellants under Article 19(1)(f) or (g) of the Constitution is equally devoid of force. There is nothing in the notification which prevents the appellants from acquiring, holding and disposing of their property or prevents them from practising any profession or from carrying on any occupation, trade or business. The fact that some others have also been enabled to obtain permits for running buses cannot constitute a violation of the appellants' rights under the above two clauses of Article 19 of the Constitution. The above provisions are not intended to grant a kind of monopoly to a few bus operators to the exclusion of other eligible persons. No right is guaranteed to any private party b y Article 19 of the Constitution of carrying on the trade and business without competition from other eligible persons. Clause (g) of Article 19(1) gives a right to all citizens subject to Article 19(6) to practise any provision or to carry on any occupation, trade or business. It is an enabling provision and does not confer a right on those already practising a profession or carrying on any occupation, trade or business to exclude and debar fresh eligible entrants from practising that profession or from carrying on that occupation, trade or business, the said provision is not intended to make any profession, business or trade the exclusive preserve of a few persons. We, therefore, find no valid basis for holding that the impugned provisions are violative of Article 19." The identical situation has been created by Sections 71, 72 and 8 of the Act by omitting the provisions of Section 47(3) of the old Act. It has been made easier for any person to obtain a stage carriage permit under the Act. The attract of the petitioner on Section 80 on the ground of Article 19 has squarely been answered by this Court in Hans Raj Kher's case (AIR 1975 SC 398) (Supra)." In the above reported judgment, the Supreme Court mainly dealt with the grant of stage carriage permits, for inter region, intra region and inter-state permit of the Act. 14. The source of power of the Government to issue orders in G.O.Ms.No.277, Home (Transport VI) Department, dated 22.03.2001 came up for consideration in a batch of Writ Appeals in N.Muthukrishnan v. D.Pushpam & another reported in 2003 Writ. L.R. 46. The petitioners therein challenged the proceedings of the Secretary of Regional Transport Authority, by which, there was an amendment to the area of operation of the contract carriages, particularly, five-seater Autorickshaws permitted to be operated by the very same Government Order, which is impugned in this Writ Petition. The amendment introducedwas that instead of 30 K.M., radius from Rajapalayam Town Bus stand to one of 30 K.M., radius from Virudhunagar Central Bus Stand, Virudhunagar. The Division Bench considered the policy of the Government framed in the year 1997, wherein five- seater autos were permitted to be operated private individuals and the subsequent Government orders issued thereof and at Paragraph 19 held as follows: "There is no dispute as to the source of power to Government to issue the above orders traceable to Section 67 of the Act. It is also not in dispute that directions so issued are binding on the transport officers............................ It is apparent from the above that the applications for the grant were considered only with reference to the Government Orders and not under Section 66 or under Sections 69, 73 and 80 of the Act and Rule 170 of the Rules." So saying the Division Bench has rejected the arguments of the learned counsel for the petitioners. 15. In A.P.Motor Vehicles Dealers Assocn. v. Govt. of India reported in AIR 2003 A.P. 134, the association of the Andra Pradesh Motor Vehicle dealers in particular, three wheelers (Autorickshaws), challenged the Government Order in G.O.Ms.No.137, Transport, Roads and Buildings (TR-II) Department, dated 06.08.2002 as violative of Articles 14, 19(1)(g) and 21 of the Constitution of India and contrary to the provisions of Section 74 of the Motor Vehicles Act, 1988. Through the impugned order, the second respondent therein, restricted the three wheeled Autorickshaws at Hyderabad to 68,467 as on 05.02.2002 and directed the Regional Transport Authority, Hyderabed to restrict the number of three wheeled Autorickshaws to that number. It was further directed that no new permit shall be granted to such vehicles from 06.08.2002 onwards. Replacement of the existing three wheeled Autorickshaws was permitted by LPG driven three wheeled contract carriages. 16. In the above reported judgment, the main contention of the Association was that the notification issued by the State Government was not in conformity with provision of Section 74(3)(a) of the Act and therefore, it has to be struck down. After referring to various provisions of the Motor Vehicles Act, such as, Sections 70, 71, 73, 74 etc., and after considering the judgment of the Supreme Court in Mithilesh Garg' case, the Andra Pradesh High Court, at Paragraph 22, 23, 24, 25 and 29 held as follows: "22. From the context of imposing restriction on the number of vehicles, be it contract or stage carriages, under the old or new Act, there is hardly any distinction in this regard. The grant of permits to contract carriages with reference to area is more from the point of view of convenience. Granting a permit with reference to a route to a contract carriage, would many a time, render the very permit unworkable. In a way, it can be said that what is route to stage carriage, is area to a contract carriage. Both the terms are used to connote the limits within which the respective categories of vehicles are to operate. A wider connotation in which the permits are granted to contract carriages, cannot water down the power of the competent authorities to impose restrictions in the larger public interest. 23. The power to impose restrictions on the number of permits for stage or contract carriages has been very much recognised even under the 1939 Act. As observed earlier, the power as regards such restrrictions under the 939 Act was at the level of RTA. It was held in several cases that once the RTA fixed the number of permits under Section 47(3) of 1939 Act, the same cannot be deviated. The only exception taken by the Courts was that the restriction should not be placed while considering the application itself and that the decision as to restriction should precede the consideration for grant of restriction. In this context reference may be had to the judgments of the Supreme Court in R.O.Naidu v. Addl. S.T.A.T., Madras, AIR 1969 SC 1130, Mohd. Ibrahim v. S.T.A. Tribunal, Madras, AIR 1970 SC 1542, Mithilesh Garg v. Union of India, AIR 1992 SC 443, etc., 24. Under the new Act, the power to place restrictions on the number of permits has been rendered more objective and made to flow from one stage to another. The places as regards, which such restrictions can be placed, are squarely bracketed, viz., those with population of not less than 5 lakhs. The purport of such an exercise is not difficult to be discerned. Traffic congestion and problems of pollution are rampant in towns; They are the guiding factors in enacting such provisions and for implementation of the notifications issued thereunder. The fact that in the city of Hyderabad permits of three-wheeled contract carriages as on 05.08.2002 has reached the figure of 68,469 is not not disputed. It cannot be said that the twin problems of traffic congestion and the air and sound pollution have no contribution from these vehicles. 25. ....................... The power conferred on the State and Central Governments to restrict the number of permits in respect of routes in towns having population more than 5 lakhs was recognised by the Supreme Court and in fact the