1. By way of present petition invoking Article 226 of the Constitution of India, the petitioner has challenged the Notification No.G/UPK/Traffic/4/2022 dated 08.01.2022 issued by the respondent No.1 to the extent that it prohibits and restricts the transit of private passenger buses in Ahmedabad City between 8:00 a.m. and 10:00 p.m. which; (i) weigh more than 7500 kg (ii) with a seating capacity for 33 passengers or more and (iii) a sleeping facility vehicles. Being aggrieved by the aforesaid Notification, the petitioner has prayed for the following reliefs:

“18. The Petitioner prayers that this Hon’ble Court be pleased to:

Final relief

I. That the Hon'ble Court be pleased to declare the Notification no. G/UPK/Traffic/04/2022 dated 08.01.2022 issued by Respondent No. 1 to be unconstitutional in violation inter alia, of Articles 14, Article 19(1) (d) and Article 19(1)(g) of the Constitution of India and to quash and set aside the same, to the extent that it prohibits and restricts the transit of private passenger buses in Ahmedabad city between 8 am and 10 pm which:

(i) weigh more than 7500 kg, or

(ii) are sleeping facility vehicles, or

(iii) with a seating capacity for more than 33 passengers or more.

II. That the Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction commanding Respondent No. 1 not to issue any notification/order in exercise of powers under Section 33(1)(b) and (c) of the Gujarat Police Act similar to or in the nature of the Impugned Notification, in an arbitrary and mechanical manner, without application of mind, without offering valid reasons in support based on prevailing facts and circumstances and without due consultation of all stakeholders, and which is discriminatory and imposes unreasonable restrictions on fundamental rights of the Petitioners and the like.

III. That the Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction commanding Respondent No. 1 to publish all the rules, notifications, orders passed under Section 33 of the Gujarat Police Act on the website in a manner that the same are available and accessible to the Petitioner.

IV. That the Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction commanding Respondent No. 1 to provide to private operators of passenger vehicle and heavy and medium vehicles (including luxury buses) including the Petitioner:

i Adequate routes to ply such vehicles in the city of Ahmedabad for 24 hours i.e. round the clock;

ii At least ten passenger hubs in Ahmedabad city as highlighted in Annexure 40, and;

iii Entry and exit points to and from Ahmedabad city.

IV.A. That the Hon'ble Court be pleased to issue writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction declaring any notification/order in exercise of powers under Section 33(1)(b) and (c) of the Gujarat Police Act similar to or in the nature of the Impugned Notification issued by Respondent No.1 after issuance of Impugned Notification to be quashed and set-aside as it is discriminatory and imposes unreasonable restrictions on fundamental rights of the Petitioners and the like.

Interim relief

V. That pending the hearing and final disposal of this petition, the Hon'ble Court be pleased to stay the operation, implementation and execution of Notification no. G/UPK/Traffic/04/2022 dated 08.01.2022 issued by Respondent No. 1, to the extent that it prohibits and restricts the transit of private passenger buses in Ahmedabad city between 8 am and 10 pm which:

(i) weigh more than 7500 kg, or

(ii) are sleeping facility vehicles, or

(iii) with a seating capacity for more than 33 passengers or more.

V.A. That pending the hearing and final disposal of this Petition, the Hon'ble Court be pleased to issue writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction staying the operation, implementation and execution of any notification/order in exercise of powers under Section 33(1)(b) and (c) of the Gujarat Police Act similar to or in the nature of the Impugned Notification issued by Respondent No.1 after issuance of Impugned Notification as it is discriminatory and imposes unreasonable restrictions on fundamental rights of the Petitioners and the like.

VI. That pending the hearing and final disposal of this petition, the Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction commanding Respondent No. 1 not to issue further notification/order in exercise of powers under Section 33(1)(b) and (c) of the Gujarat Police Act similar to or in the nature of the Impugned Notification, in an arbitrary and mechanical manner, without application of mind, without offering valid reasons in support based on prevailing facts and circumstances and without due consultation of all stakeholders, and which is discriminatory and imposes unreasonable restrictions on fundamental rights of the Petitioners and the like.

VII. That pending the hearing and final disposal of this petition, the Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction commanding Respondent No. 1 to provide to private operators of passenger vehicle and heavy and medium vehicles (including luxury buses) including the Petitioner:,

i. Adequate routes to ply such vehicles in the city of

ii. Ahmedabad for 24 hours i.e. round the clock; At least four passenger hubs in Ahmedabad city as highlighted in Annexure P-40, and;

iii. Entry and exit points to and from Ahmedabad city.

VIII. For ad-interim relief in terms of prayer at para 18 (V), (VI), and

(VII) above;

IX. for costs;

X. for such other and further orders ad the nature and circumstances of the case may require in the interest of justice.”

2. Heard Ms. Karuna Nandy, learned advocate with Mr. Amanpreet Singh, learned advocate with Mr. Parth S. Shah, learned advocate with Ms. Tanaya G. Shah, learned advocate appearing for the petitioners and Ms. Jyoti Bhatt, learned Assistant Government Pleader appearing for the respondent – State.

3. The present petition is filed through the petitioner No.2 – the Managing Director of the petitioner No.1 Company, which is part of the Shrinath Group of Companies founded by the petitioner No.2 in 1978 and is one of the most popular bus service operators in India. The petitioners’ group operates in number of State such as Maharashtra, Gujarat, Rajasthan, Uttar Pradesh, Madhya Pradesh and Delhi. The key operations of the petitioner are in the tourism industry although, the business is expanded into other domains such as logistics, real estate, airport-tarmac coaches, staff transportation and entertainment.

3.1 The petitioner herein seeks to challenge the Notification No.G/UPK/Traffic/4/2022 dated 08.01.2022 issued by the Police Commissioner, Ahmedabad City on various grounds consisting of and not limiting to encroaching on fundamental and legal right of trade, arbitrary action and illegality by the respondent No.1 amongst others. The said Notification has purported intent to control pollution, traffic and accidents in Ahmedabad City and disallows the vehicles that have sleeper facilities or more than 33 passengers seats and weigh more than 7500 kg, to operate between 8:00 am and 11:00 pm in the City. It creates exceptions, for various other classes of heavy vehicles, including S.T. buses, BRTS buses, AMTS buses as well as vehicles for RTO work, those used for transport of essential goods, all college and school buses, vehicles carrying passengers on occasions like marriage and death, Fire Brigade, Ambulances, Govt. vehicles and heavy and medium goods vehicles.

3.2 The restrictions on the entry of private buses in Ahmedabad City began in the year 2003. The most relevant purposes for filing the present petition read thus:

"(a) The restriction akin to the impugned Notification on transit of private passenger vehicles in Ahmedabad City by the respondent No.1 was first seen on 18.12.2003.

(b) The respondent No.1 then issued the Notification dated 21.06.2004 prohibiting the entry of heavy vehicles and passenger buses in the City limits from 9:00 am to 11:00 pm. However, the heavy vehicles and passenger buses were given exemptions to ply 24 hours using 4 prescribed routes. From 1:00 pm to 4:00 pm, 6 other routes for use by heavy vehicles and passenger buses and goods carriage vehicles were prescribed.

(c) The Notification dated 16.11.2004 similarly, restricted transit of heavy vehicles between 9:00 am and 11:00 pm. 10 routes were indicated in the said Notification where heavy and medium vehicles (including luxury buses) were allowed to ply for 24 hours i.e. round the clock. Four of these routes also had allotted parking lots for heavy vehicles and passenger buses.

(d) Subsequently and without due application of mind or legitimate reasons, the Notifications dated 15.04.2017, 23.12.2017, 16.10.2019 and 06.02.2021 do not allow private buses to ply any routes whatsoever in Ahmedabad City during the day.

(e) The impugned Notification dated 27.08.2021 imposes restrictions on the transit of heavy vehicles from 8:00 am to 11:00 pm, without any provision of routes or allotment of parking lots.

(f) Further, the Notification issued on 08.01.2022 restricts the transit of private passenger buses in Ahmedabad City from 8:00 am to 10:00 pm."

3.3 The aforesaid restrictions imposed by the respondent No.1 under Section 33(1)(b) and (c) of the Gujarat Police Act, 1951 only allows regulation and not prohibitions. The respondent No.1 has been effectively re-notifying and tightening the same restrictions without due consideration of changes in the circumstances surrounding traffic in the Ahmedabad City. Under such circumstances, the respondent No.1 must in exercise of powers under Section 33(1)(b) and (c) address the facts and circumstances that exist at the time of making any rules or regulations.

3.4 The relevant circumstances in question, and the compelling State interest cited, are with regard to pollution, traffic and accidents. Today, there is a recorded improvement in the pollution, traffic congestion and accidents in Ahmedabad City attributable to private bus operators, as demonstrated through the reports and studies duly annexed to the petition. The petitioners and similar private bus operators have equipped their buses with modern, environment friendly technology that reduces pollution significantly. Further, two wheelers, cars and state passenger vehicles that are allowed in Ahmedabad without restriction and necessitated by the absence of private bus operators, contribute more to pollution than private buses. The state buses are generally older and thus cause more pollution in comparison to newer private buses. Moreover, two-wheelers constitute more than 70% of the vehicles on the road, while the private buses constitute less than 1% as per the reports quoted in the petition, two wheelers are also the largest cause of accidents and traffic.

3.5 The petitioners filed RTIs dated 01.07.2021 with the respondent No.1 to ascertain the basis of the restrictions imposed on the transit of private buses. However, the answers to the said RTIs failed to establish the private buses as the significant cause for the pollution, traffic and accidents in Ahmedabad City. The number of accidents and registrations of private buses as quoted by respondent No.1 in the RTI response are negligible compared to those of other vehicles on the road. The RTI filed with the Gujarat State Road Transport Corporation (GSRTC) seeking various information pertaining to the age of buses employed and pollution norms followed by the GSRTC to which, GSRTC replied on 17.07.2021 wherein, the GSRTC did not give any information as sought for but stated that GSRTC purchased buses as per applicable CMVR Rules and as per applicable emission norms. Further, a representation dated 01.07.2021 to the respondent No.1 with respect to the restrictions imposed by such Notifications issued from time to time is remained unresponded.

3.6 All the reports show that lack of adequate mass transport such as buses and increased use of private vehicles particularly, two wheelers are the cause of pollution, traffic and accidents in the Ahmedabad City. In fact, only 12% of the people in Ahmedabad City use public transport. The increased use of public and mass transport is stated as the solution to the problem of pollution, traffic and accidents in Ahmedabad City. Private buses like that of the petitioners that act as mass transport and serve the common people will in reality, help alleviate the traffic and accidents, and reduce the pollution in the city.

3.7 The Notification dated 16.11.2004 issued by the respondent No.1 was challenged before this Court by filing Special Civil Application No.14245 of 2005. The said Notification unlike the impugned notification provided for 10 routes where heavy and passenger buses would transit all 24 hours. Further, four parking lots for the heavy vehicles and passenger buses. After dismissal of the Special Civil Application, a Division Bench of this Court by order dated 14.02.2006 dismissed the appeal on the finding that the restrictions are reasonably given that the Notification only regulated the movement of the buses and did not act as a prohibition. An appeal via Special Leave was made to the Supreme Court of India against this order on the limited point of one specific road in Ahmedabad City was dismissed.

3.8 Despite improvement in the pollution, accidents and traffic caused by private buses, a negligible absolute contribution to these problems in Ahmedabad City, according to expert opinion, they are part of the solution – the impugned Notifications issued by the respondent No.1 prescribed no routes for 24 hour travel and are far more restrictive than the 2004 Notification. The restrictions imposed on the transit of private passenger vehicles vide the impugned Notification are incorrectly tailored, disproportionate and an unreasonable incursion on the petitioners’ fundamental right to carry out its business, guaranteed under Article 19(1)(g) of the Constitution and this right cannot be curtailed to an extent greater than necessary or allowed under Article 19(6) of the Constitution.

3.9 The ‘deprivation’ or ‘prohibition’ by the impugned Notification hence are liable to be set aside under Article 13(2) for violating the fundamental rights of the petitioners, other private bus operators and the five lakh people that they employ, since it doesn’t fall within the ambit of “reasonable restrictions” under Article 19(6). The impugned arbitrary restriction imposed by the impugned Notification 27.08.2021 has adversely affected the private bus industry in Ahmedabad. The industry has been reeling under the impact of the unprecedented Covid-19 pandemic like many other businesses in India and all over the world. The restrictions on the private passenger buses is arbitrary and has no rational nexus with the object it seeks to achieve contrary to Article 14 of the Constitution of India.

3.10 For the aforesaid reasons, the petitioners through the present petition seek that the impugned Notification No.G/UPK/ Traffic/4/2022 dated 08.01.2022 and various such previous Notifications be set aside to the extent that it imposes an unreasonable restriction on the fundamental rights of the petitioners and other private bus operators. Further, the petitioners seek that the respondent No.1 be ordered to conduct public consultations with affected stakeholders and record reasons with specific reference to prevailing circumstances which accord with an order to be passed restraining the respondent from imposing any arbitrary or discriminatory restriction on the prior to limiting transit of any class or sub-class of vehicles in the City. In view of the aforesaid set of facts, the petitioners herein have filed the present petition with the prayers as referred above.

4. Ms. Karuna Nandy, learned advocate appearing for the petitioners, submitted that the impugned Notification No.G/UPK/Traffic/4/2022 dated 08.01.2022 issued by the respondent No.1 prohibits the movement of inter-alia normal sized private buses (except minis) from 8:00 am to 10:00 pm.

The objective of this Notification is claimed to control traffic and accidents in Ahmedabad City, which adversely affects the petitioners, a leading bus company its right to ply private buses on public roads and carry on the business of transporting passengers with the aid of vehicles under Article 19(1)(g) of the Constitution of India. Reliance is placed on the ratio as laid down in case of Saghir Ahmad vs. State of U.P. & Ors., reported in AIR 1954 SC 728 [LQ/SC/1954/130] .

4.1 Ms. Nandy, learned advocate, placing reliance on (2012) 5 SCC 1 [LQ/SC/2012/202] in case of Ramlila Maidan Incident submitted that the impugned Notifications travel beyond the scope of reasonable restrictions wherein the fundamental right to carry on business is infringed and the same can be said to be a ‘prohibition’. Ms. Nandy, learned advocate submitted that the Notification of 2004 was a reasonable and constitutional Notification wherein, the restrictions allowed 6 routes that could be used for plying buses for 4 hours in the day time. The aforesaid Notification was issued after holding consultations with the stake holders and the restrictions were relaxed to 10 routes for 24 hours. Further, four parking lots for heavy vehicles and passenger buses were allotted by the said Notification dated 16.11.2004.

4.2 Ms. Nandy, learned advocate submitted that the said Notification dated 16.11.2004 issued by the respondent No.1 was subject matter of challenge wherein, it was concurrently held by 3 Judicial Forums i.e. Special Civil Application No.14245 of 2005 which came to be dismissed, the order dated 14.02.2006 passed in Letters Patent Appeal No.244 of 2006 and the order passed by the Hon’ble Apex Court, upholding the orders passed by this Court on the finding that the restrictions reasonably given and that the Notification only regulated the movement of the buses and did not act as a prohibition. Reliance was placed on the ration as laid down by the Hon’ble Supreme Court in (2020) 3 SCC 637, [LQ/SC/2020/41] (2017) 10 SCC 1 [LQ/SC/2017/1233] .

4.3 Ms. Nandy, learned advocate, further placing reliance on the facts of the present petition, submitted that the petitioners filed RTI dated 01.07.2021 with the office of the respondent No.1 to ascertain the basis on which such restrictions were repeatedly imposed. The same was responded too by the respondent authority however, it was stated that no reply is received from the Ahmedabad Municipal Corporation after the queries of the petitioners with respect to the pollution were transferred.

4.4 Ms. Nandy, learned advocate, submitted that buses are known to reduce traffic. Placing reliance on the RTI response received from the State, it was submitted that the root cause of traffic, accidents and pollution in Ahmedabad City is the exponential increase in registration by private vehicles which totaled to 40 lakhs. It was submitted that the respondent No.1’s own data shows that increase is attributable to the two wheelers and not buses.

4.5 Ms. Nandy, learned advocate, submitted that the action plan for control of air pollution in non-attainment City of Gujarat (Ahmedabad) by Gujarat Pollution Control Board states that the total number of vehicles registered in Ahmedabad in June, 2018 is 40,78,718 out of which, passenger buses are 36,928 (0.90%) and two wheelers are 28,78,309(70.56%). Reliance was placed on the study by CEPT University, Ahmedabad, wherein the study conducted on “Managing Urban Logistics in an Expanding City – Case Study of Ahmedabad” by Dr. Deepak Baindur and Prof. Shivanand Swamy of CEPT University, discusses the restrictions on heavy vehicles and finds that there are issued with its effectiveness.

4.6 Placing reliance on the aforesaid submissions, Ms. Nandy, learned advocate, submitted that the present Notifications affects interstate intercourse, commerce and trade and are violative of Article 301. It was submitted that these Notifications are not saved by Article 304 which allows restrictions by the State as the Notifications are promulgated by the Commissioner of Police under Section 33(1)(b) and (c) of the Gujarat Police Act, 1951 under delegated authority. Ms. Nandy, learned advocate, submitted that the impugned Notification promulgated repeatedly without adequate determining principle or consideration of prevailing facts and circumstances is violative of Article 14 and placed reliance on the decision rendered in case of Shayara Bano vs. Union of India, reported in 2017 (9) SCC 1 [LQ/SC/2017/1217] wherein, it was held that the exercise undertaken by the legislature without proper consideration will be considered as manifestly arbitrary.

4.7 Ms. Nandy, learned advocate submitted that the impugned Notification creates two classes between (i) goods trucks and private buses and; (ii) state buses and private buses. The classifications are not based on any intelligible that has a rational nexus with the object that it purportedly seeks to achieve and the same is violative of Article 14 of the Constitution of India.

4.8 Placing reliance on the aforesaid submissions, Ms. Nandy, learned advocate submitted that the impugned Notification be modified to the extent as prayed for by the petitioner in the present petition.

5. Ms. Jyoti Bhatt, learned Assistant Government Pleader appearing for the respondent State, submitted that the petitioner company has 64 buses which fall into the category of heavy passenger vehicles and the said data is as per the record of 2014 when the petitioner had approached the authorities for certain permissions. Ms. Bhatt, learned AGP, submitted that while seeking to challenge the impugned Notification No.G/UPK/TRAFFIC/18/2023 dated 10.04.2023 issued by the respondent No.1 which restricts the movements of private buses from 8:00 am to 10:00 pm to control traffic, pollution, accidents in the Ahmedabad City, the petitioner has violated the said Notification.

5.1 Reliance was placed on the C.C.T.V. footage from 09.08.2023 to 13.09.2023 which shows that the petitioner and other private buses have violated the Notifications and therefore, the submission of the petitioner that the respondent authority through the drive undertaken has not followed the statutory mechanism, are unreliable. It was submitted that the submissions advanced by the petitioners that the petitioners are following the statute and due process of law and that the petitioners are law abiding citizens is contrary to what is stated by the petitioners. It was submitted that the petitioners in the last month violated at-least 35 times the Notification dated 10.04.2023 in view thereof, the petition is not maintainable as it is not violative of any constitutional or statutory provision.

5.2 Ms. Bhatt, learned AGP further submitted that the challenge in the present petition is not with respect to the statutory competence of the authorities but to the effect that the petitioner is being unequally and not allowed to operate in the Ahmedabad City from 8:00 am to 10:00 pm which is misleading statement on oath and suppression of material facts. Ms. Bhatt, learned AGP, submitted that the petitioners have also taken assistance of Central Road Research Institute (‘CRRI’ at New Delhi), CEPT University at Ahmedabad undertaken research activities in order to mitigate the problems of traffic congestion and deaths occurring due to ‘heavy vehicles’ (the buses of the petitioner would fall within aforesaid head).

5.3 Ms. Bhatt, learned AGP, submitted that the impugned Notification could not be said to be arbitrary much less trying to create a class within a class of bus operators whereby exemption are granted to BRTS, AMTS and GSRTC and restrictions are sought to be imposed upon the petitioner. As far as the BRTS and AMTS are concerned, the said bus operators are different from the petitioner as they operate only in the municipal limits of the Ahmedabad City and fall within the definition of ‘stage carriage’ and not ‘contract carriage’ catering to a citizenry of over 6.5 lakh passengers (approximately) on daily basis.

5.4 Ms. Bhatt, learned AGP, submitted that the Notification dated 21.06.2004 stands confirmed by the Hon’ble Apex Court wherein, the reasonable restrictions is permissible. Reliance was placed on the Chart placed on record by Ms. Nandy, learned advocate appearing for the petitioner wherein, it was shown that the private cars are plying single passenger while private buses (petitioner is a private bus company) are plying

140 passengers at a time therefore, the submissions advanced by the petitioner that private cars are causing more pollution, more traffic hurdles and more accidents against the private buses as plying 140 passengers at a time cannot create hurdles in traffic, create less pollution than the private cars and no issues of accidents; to the said submission, Ms. Bhatt, learned AGP submitted that any private bus cannot ply 140 passengers; even otherwise, the petitioner company cannot ply 140 passengers in the City. The petitioners’ company plying its buses intercity and interstate and therefore, the said Chart is not applicable in the facts of the present case.

5.5 Ms. Bhatt, learned AGP submitted that the impugned Notification infringes the right of business whereby there is restriction to ply the buses between 8:00 am to 10:00 pm only and it is restrained for plying in the City only to avoid traffic congestion during peak hours of traffic in the City and the transportation of the passengers, mini buses are allowed and the petitioner can transport their passengers through mini buses at the outskirts of the City therefore, the petitioners are not restricted or enjoy their fundamental rights of business. It was submitted that the traffic conditions in the year 2004 and 2023 cannot be compared as the traffic is 10 times higher than 2004 and therefore, it cannot be said that 2004 Notification was reasonable and was balancing the rights of public interest in preventing traffic, accident, pollution as it was convenient of public and bus operators in the prevailing facts and circumstances at that time.

5.6 Ms. Bhatt, learned AGP submitted that in the year 2004, there were 400 companies registered as private transporters and in the year 2023, there are many more companies registered as private transporters for plying intercity and interstate transportation. In the year 2014, the petitioner company was having 67 buses as per the record availed by the respondent authority and compared to that presently, the number of buses having increased, if all the transporters are allowed to ply their buses during peak hours, the same would result in hindering the traffic.

5.7 Ms. Bhatt, learned AGP, submitted that the impugned Notification which is subject matter of challenge by the petitioner is binding all the buses or heavy vehicles to enter in the City in peak hours i.e. 8:00 am to 10:00 pm and therefore, the contention raised by the petitioner that the impugned Notification infringes the rights of business to the petitioner of transporting passengers may not be accepted by this Court. Ms. Jyoti Bhatt, learned AGP placed reliance on the FIR lodged on 04.10.2023 wherein the accident took place on Sola Over- bridge in the morning hours by the private bus in which 23 years old boy passed away though, there is no permission granted to pay within the City limit of Ahmedabad between 8:00 am to 10:00 pm.

5.8 Placing reliance on the aforesaid submissions, Ms. Bhatt, learned AGP submitted that no interference is called for in the impugned Notification issued by the respondent No.1 imposing reasonable restrictions to ply the private buses, heavy vehicles from 8:00 am to 10:00 pm.

Analysis

6. Having heard the learned advocates appearing for the respective parties, in the facts of the present case, the petitioner herein is a company in business of bus services since 1978. The petitioner herein is aggrieved by the impugned Notification No.G/UPK/Traffic/4/2022 dated 08.01.2022 issued by the respondent No.1, duly produced at page 757 to the petition, imposing ban on all types of passenger vehicles with a capacity of more than 33 passengers from entering in the Ahmedabad City from 8:00 am to 10:00 pm under the powers conferred under Section 33(1)(b) and (c) of the Gujarat Police Act, 1951.

6.1 Being aggrieved by the aforesaid Notification dated 08.01.2022 and other Notifications issued from time to time pending the present petition, the petitioner herein has approached this Court.

6.2 An identical Notification dated 16.11.2004 issued by the respondent No.1 in exercise of powers under section 33(1)(b) of the Bombay Police Act, 1951, was subject matter of challenge before this Court. The Special Civil Application No.14245 of 2005 arising out of the said Notification came to be dismissed by order dated 13.09.2005. The said order of dismissal was challenged by preferring the Letters Patent Appeal No.244 of 2006 which came to be dismissed by order dated 14.02.2006.

6.3 At this stage, it is apposite to refer to Section 33(1)(b) and (c) of the Gujarat Police Act, 1951, which reads thus:

“33.(1) The Commissioner, with respect to all or any of the following make rules or matters specified in this sub-section and the District Magistrate, with respect to all regulation of traffic and for or any of the said matters except the matters referred to in sub-section (IAA), may preservation of make, alter or rescind rules or orders not inconsistent with this Act, in areas under their respective charges or any part thereof namely:-

XXXX

(b) regulating traffic of all kinds in streets and public places, and the use of streets and public places by persons riding, driving, cycling, walking or leading or accompanying cattle, so as to prevent danger, obstruction or inconvenience to the public;

(c) regulating the conditions under which vehicles may remain standing in streets and public places, and the use of streets as halting places for vehicles or cattle.”

7. The respondent No.1 under Section 33(1)(b) as referred above is empowered to put reasonable restrictions under the provisions of the Act and in view thereof, the impugned Notifications, in the opinion of this Court, are not violative of Articles 301 and 304 of the Constitution of India.

8. Considering the grievance raised by the petitioners that the Notification creates two classes between (i) goods trucks and private buses and; (ii) state buses and private buses, the said classification does not have rational and is violative of Article 14. To the aforesaid contention raised by the petitioners herein, in the opinion of this Court, the petitioner herein is in business of plying its private buses inter-state and intra-state and a ‘contract carriage’. By the impugned Notification, all the private buses are restricted to ply its buses between 8:00 am to 10:00 pm in the Ahmedabad City only to avoid the traffic congestion during peak hours traffic in the City. The transportation of passengers in the private mini buses is allowed. The petitioners can carry their passengers through mini buses to the outskirts of the City therefore, there is no restriction to the enjoyment of the petitioners’ fundamental right to carry on trade/business.

The aforesaid was considered in Letters Patent Appeal No.244 of 2006 and in the opinion of this Court, the impugned Notification issued by the respondent No.1 does not in anyway violative of Article 19(1)(d), Article 19(1)(g) and Article 19(1) (6) of the Constitution.

8.1 It is apposite to refer to the order dated 14.02.2006 passed in Letters Patent Appeal No.244 of 2006 wherein, the subject matter of challenge is with respect to the Notification dated 16.04.2004 issued by the Police Commissioner, Ahmedabad City under Section 33(1)(b) of the Bombay Police Act for regulating the movement of heavy and medium vehicles in the Ahmedabad City. Paragraphs 4, 5, 6, 7, 8, 9, 10, 11 and 12 read thus:

“4. Having heard the learned counsel for the appellant, we are not inclined to admit this appeal for the following reasons:-

In the first place, in public interest litigation being Special Civil Application No.4038 of 2005 this very notification was challenged and another Bench of this Court dismissed the petition on the ground that the petitioner therein did not file objections at an appropriate stage; that the purpose to eliminate pollution in the city of Ahmedabad is laudable since Ahmedabad is suffering enormously from pollution and also on the ground that there was no public interest involved in filing that petition. We are bound by the aforesaid decision of the coordinate Bench of this Court.

5. Secondly, the fundamental right under Article 19(1)(g) is subject to reasonable restrictions which may be imposed by the Legislature in the interests of the general public as provided in Article 19(6). Section 33(1)(b) and (c) of the Bombay Police Act 1951 confer powers on the Commissioner of Police in respect of the following matters :-

“(b) regulating traffic of all kinds in streets, and public places, and the use of streets and public places, and the use of streets and public places by persons riding, driving, cycling walking or leading or accompanying cattle, so as to prevent danger, obstruction or inconvenience to the public;

(c) regulating the conditions under which vehicles may remain standing in streets and public places, and the use of streets as halting places for vehicles or cattle;”

The impugned notification dated 16.11.2004 squarely falls within the ambit of the power conferred by the above statutory provisions.

The buses being plied by the appellant and similar other private bus operators are admittedly heavy vehicles. The Court can take judicial notice of the fact that a group of private bus operators operate in a cluster from certain locations within the city which have very heavy traffic congestion and that these buses also pass through heavy traffic areas.

6. Thirdly, we have also examined the reasonableness of the restrictions. The impugned notification does not impose absolute prohibition on movement of heavy and medium vehicles round the clock, but only for about 12 hours between 9.00 AM and 9.00 PM.. The impugned notification, therefore, does not impose absolute prohibition, but only provides for regulation of traffic during the particular number of hours, unlike the notification issued by the authorities in Chennai - as is clear from the judgment relied upon by the learned counsel for the appellant. The Madras High Court found fault with the absolute prohibition of operation of the omni buses within the city round the clock. In paragraph 12 of the said judgment, the Court observed that other heavy vehicles were allowed to operate between 8.00 PM and 8.00 AM, but the request of the Tamilnadu Omni Bus Operators Association to permit them to operate within the city between 5.00 PM and 5.00 AM. Was rejected. Their Lordships of the Madras High Court, therefore, held that they did not find any justification for total restrictions in the case of Omni buses operated by private operators.

In the instant case, however, restrictions are imposed by the Police Commissioner on all the heavy vehicles including omni buses and prohibition is also for about 12 hours and not round the clock as already indicated earlier.

Moreover, the Tamilnadu State Government had defended the notification impugned before it only on the basis of Section 115 of the Motor Vehicles Act, 1988 which confers power on the State Government to restrict the use of vehicles in the interest of public safety or convenience or because of the nature of any road or bridge. We do not find any reference to any provision similar to those in Section 33 (1) (b) of the Bombay Police Act, 1951 invoked by the Police Commissioner, Ahmedabad in the present case. We are of the view that the provisions of Section 33(1)(b) of the Bombay Police Act confer much wider powers than the provisions of Section 115 of the Motor Vehicles Act.

In view of the above notable distinctions, we do not think that the decision of the Madras High Court is of any avail to the petitioner.

7. The learned counsel would, however, submit that the appellant and similar other bus operators are ready to give an assurance that they will not park their buses on the public roads and that the buses will stop near their pick-up points only to pick up the passengers or to drop the passengers for a few minutes.

Such assurance would be of no avail because in any case the buses would be moving on the public roads with heavy traffic congestion within the city areas. Even otherwise, it is not possible to accept that such buses will not be parked or kept stationary for some time. The buses will certainly be parked in the concerned areas with heavy traffic congestion within the city limits for 15 to 30 minutes before the scheduled time of departure and some times the departure of buses may be delayed waiting for the passengers coming from other pick-up points.

8. As regards the pollution being caused by the emissions from such heavy and medium diesel vehicles which are generally run on diesel, no discussion is necessary. The Police Commissioner has also referred to the noise pollution being caused by such heavy and medium vehicles whose drivers are in the habit of driving even within the city at fast speed and honking horns every now and then. It is sufficient to scare the aged and young walking on the roads or the students moving on bicycles.

9. As regards the contention that there are very few buses and that there are hardly 50 such buses being plied within the city and that it is discriminatory to regulate their movement without regulating the movement of all the buses plying within the city, the submission is misconceived. There is no authentic material on record regarding the number of private buses in the city of Ahmedabad. In any view of the matter, buses for college and school students and the staff buses for companies constitute a separate class by themselves. Such buses pick up students and staff in the early morning hours and drop them in the evening hours. Moreover, in the very nature of things, plying of such buses for students and staff of different companies within the city limits results into less private vehicles on public roads and thus reduces the traffic congestion.

10. As regards the grievance made about discrimination vis-a-vis the vehicles of public authorities like Ahmedabad Municipal Transport Service, the latter also constitute a separate class altogether. The buses of the Ahmedabad Municipal Transport Service, most of which now run on CNG, cater to the passengers commuting within the city and, therefore, prohibiting movement of such buses within the city area would again mean compelling those passengers to use private vehicles adding to the traffic congestion rather than relieving it. The buses being plied by the appellant and other private bus operators are not granted stage carriage permits but they are only granted contract carriage permits i.e. for carrying entire groups of passengers from one city to another and they are not supposed to carry individual passengers. It is only the buses of the State Road Transport Corporation which are authorized to carry individual passengers from one city to another. The State Transport Corporation Depot is located in the Jamalpur area which is in one corner of the city from where the ST Corporation buses move out of Ahmedabad city.

11. The impugned notification imposes restrictions on the movement of heavy and medium vehicles, such as the omni buses being plied by the private bus operators and inconvenience caused to a few bus operators or a few passengers travelling in their buses cannot outweigh the needs of the general public running into several lakhs of them. Moreover, it is possible for the appellant and similar other bus operators to take care of the problem by providing for small vehicles like mini buses or maxi cabs to take their passengers from the pick-up points within the city area to the parking places outside the city limits from where the omni buses can go to their respective destinations.

12. In view of the above discussion, we do not find any merit in any of the contentions raised on behalf of the appellant.

The appeal is, therefore, summarily dismissed.”

8.2 The said order passed in Letters Patent Appeal was subject matter of challenge before the Hon’ble Supreme Court, which came to be dismissed by order dated 30.08.2012. The aforesaid ratio as laid down by the Hon’ble Division Bench would also govern the facts of the present case.

9. This Court deems it fit to deal with the position of law as relied upon by Ms. Nandy, learned advocate appearing for the petitioners as under:

9.1 In AIR 1954 SC 728 in case of Saghir Ahmad vs. The State Of U. P. And Ors., in the facts of the said case, the question for consideration before the Hon’ble Supreme Court was that the petitioners were persons who were operating motor vehicles for gain on public highways of the State. The petitioners were in necessary permit to operate the vehicles under the Motor Vehicles Act, 1939. The State of U.P by virtue of powers conferred upon it by the Uttar Pradesh State Road Transport Act, 1950 stopped some of the petitioners from plying their vehicles on the public highways and instead commenced plying vehicles of their own.

In the facts of the present case, the petitioners herein are ‘contract carriage’ and there is no prohibition to ply the vehicles inter-state or intra-state. However, in the interest of public at large, the respondent No.1 thought it fit to put reasonable restrictions qua plying of heavy vehicles and private buses in the Ahmedabad City between 8:00 am to 10:00 pm.

9.2 In (2020) 3SCC 637 in case of Anuradha Bhasin vs. Union Of India, the Hon’ble Supreme Court held that suspending internet services indefinitely is impermissible. Paragraph 160.3 and 160.9 of the said decision reads thus:

“160.3 An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. Suspension can be utilised for temporary duration only.

160.9 In any case, the State/authorities concerned are directed to consider forthwith allowing government websites, localised/limited e-banking facilities, hospital services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately.”

In the facts of the present case, there is only reasonable restriction in public interest and in view thereof, the aforesaid ratio as laid down by the Hon’ble Apex Court would not be applicable to the facts of the present case considering the fact that the business of the petitioners herein is in no way curtailed.

9.3 In (2017) 9 SCC 1 and (2017) 10SCC 1 in case of Shayara Bano vs. Union of India and Justice K.S. Puttaswamy & Anr. vs. Union of India & Ors., wherein, the Hon’ble Apex Court have guarded the rights of the citizens wherein, the fundamental rights are abridged.

In the facts of the present case, in the opinion of this Court, neither legal nor fundamental right is abridged by the action undertaken by the respondent No.1.

10. At this stage, it is apposite to refer to the ratio as laid down by the Hon’ble Apex Court in case of Union Of India & Ors. vs. Hindustan Development Corpn. & Ors., reported in AIR 1994 SC 988 [LQ/SC/1993/393] . Paragraphs 33, 34, 35 and 36 of the said decision read thus:

“33-34 On examination of some of these important decisions it is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine does not give scope to claim relief straightaway from the administrative authorities as no crystallised right as such is involved. The protection of such legitimate expectation does not require the fulfillment of the expectation where an overriding public interest requires otherwise. In other words where a person's legitimate expectation is not fulfilled by taking a particular then decision-maker should justify the denial of such expectation by showing some overriding public interest. Therefore even if substantive protection of such expectation is contemplated that does not grant an absolute right to a particular person. It simply ensures the circumstances in which that expectation may be denied or restricted. A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfill. The protection is limited to that extent and a judicial review can be within those limits. But as discussed above a person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. If it is a question of policy, even by way of change of old policy, the courts cannot interfere with a decision. In a given case whether there are such facts and circumstances giving rise to a legitimate expectation, it would primarily be a question of fact. If these tests are satisfied and if the court is satisfied that a case of legitimate expectation is made out then the next question Would be whether failure to give an opportunity of hearing before the decision affect such legitimate expectation is taken has resulted in failure of' justice and whether on that ground the decision should he quashed. If that be so then what should be the relief is again a matter which depends on several factors.

35. We find in Attorney General for New South wales' case that the entire case law on the doctrine of legitimate expectation has been considered. We also find that on an elaborate an erudite discussion it is held that the courts' jurisdiction to interfere is very much limited and much less in granting any relief in a claim based purely on the ground of 'legitimate expectation'. In Public Law and Politics edited by Carol Harlow, we find an article by Gabriele Ganz in which the learned author after examining the views expressed in the cases decided by eminent judges to whom we have referred to above, concluded thus:

"The confusion and uncertainty at the heart of the concept stems from its origin. It has grown from two separate roots, natural justice or fairness and estoppel., but the stems have become entwined to such an extent that it is impossible to disentangle them. This makes it that it is very difficult to predict how the hybrid will develop in future.This could be regarded as giving the concept a healthy flexibility, for the intention behind it is being it has been fashioned to protect the individual against administrative action which is against his interest. On the other hand, the uncertainty of the concept has led to conflicting decisions and conflicting interpretations in the same decision.

However, it is generally accepted and also clear that legitimate expectation beings less than right operate in the field of public and not private law and that to some extent such legitimate expectation ought to be protected though not guaranteed.

36. Legitimate expectations may come in various forms and owe their existence to different kind of circumstances and it is not possible to give an exhaustive list in the context of vast and fast expansion of the governmental activities. They shift and change so fast that the start of our list would be obsolete before we reached the middle. By and large they arise in cases of promotions which are in normal course expected, though not guaranteed by way of a statutory right, in cases of contracts, distribution of largest by the Government and in somewhat similar situations. For instance in cases of discretionary grant of licences, permits or the like, carries with it a reasonable expectation, though not a legal right to renewal or non-revocation, but to summarily disappoint that expectation may be seen as unfair without the expectant person being heard. But there again the court has to see whether it was done as a policy or in the public interest either by way of G.O., rule or by way of a legislation. If that be so. a decision denying a legitimate expectation based on such (,rounds does not qualify for interference unless in a given case, the decision or action taken amounts to an abuse of power. Therefore the limitation is extremely confined and if the according of natural justice does not condition the exercise of the power, the concept of legitimate expectation can have no role to play and the court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply and objective standard which leaves to the decising authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. For instance if an authority who has full discretion to grant a licence and if he prefers an existing licence holder to a new applicant, the decision can not be interfered with on the ground of legitimate expectation entertained by the new applicant applying the principles of natural justice. It can therefore be seen that legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited. It would thus appear that there are stronger reasons as to why the legitimate expectation should not be substantively protected than the reasons as to why it should be protected. In other words such a legal obligation exists whenever the case supporting the same in terms of legal principles of different sorts, is stronger than the case against it. As observed in Attornry General for New South Wales' case "To strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism. Moreover, the notion of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of power when its exercise otherwise accords with law." If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory unfair or based, gross abuse of power or violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 but a claim biased on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the ground to consider but the court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognised general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action, must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is "not the key which unlocks the treasury of natural justice and it ought not to unlock the gates which shuts the court out of review on the merits," particularly when the element of speculation and uncertainty is inherent in that very concept. As cautioned in Attorney General for New South Wales' case the courts should restrain themselves and restrict such claims duty to the legal limitations. It is a well-meant caution. Otherwise a resourceful litigant having vested interests in contracts. licences etc,. can successfully indulge in getting welfare activities mandated by directive principles thwarted to further his own interests. The caution, particularly in the changing scenario, becomes all the more important.”

Considering the ratio as laid down by the Hon’ble Apex Court in the matters of public interest, there can be no obligation on the respondent – State to grant opportunity of hearing once the Court is of the opinion that the said exercise undertaken by the respondent State is for the benefit of citizens/public at large. In line with the aforesaid ratio as laid down by the Hon’ble Apex Court, in the opinion of this Court, the impugned Notification is issued by the respondent No.1 exercising powers under Section 33(1)(b) and (c) of the Act in the interest of the citizens of the Ahmedabad City considering the traffic modalities during the peak hours.

10.1 It is also apposite to refer to the ratio as laid down by the Hon’ble Apex Court in case of Narmada Bachao Andolan vs. State of Madhya Pradesh & Anr., reported in (2000) 10 SCC 664. Paragraphs 232 and 233 of the said decision read thus:

“232. While protecting the rights of the people from being violated in any manner utmost care has to be taken that the court does not transgress its jurisdiction. There is, in our constitutional framework a fairly clear demarcation of powers. The court has come down heavily whenever the executive has sought to impinge upon the court's jurisdiction.

233. At the same time, in exercise of us enormous power the court should not be called upon to or undertake governmental duties or functions. The courts cannot run the Government nor can the administration indulge in abuse or non-use of power and get away with it. The essence of judicial review is a constitutional fundamental. The role of the higher judiciary under the Constitution casts on it a great obligation as the sentinel to defend the values of the Constitution and the rights of Indians. The courts must, therefore, act within their judicially permissible limitations to uphold the rule of law and harness their power in public interest. It is precisely for this reason that it has been consistently held by this Court that in matters of policy the court will not interfere. When there is a valid law requiring the Government to act in a particular manner the court ought not to, without striking down the law, give any direction which is not in accordance with law. In other words the court itself is not above the law.”

11. The traffic conditions in the year 2004 and 2023 are incomparable as the traffic is 10 much higher than it was in the year 2004. This Court is not inclined to sit in appeal over the decision taken by the respondent No.1 under Section 33(1)(b) and (c) of the Act in the interest of public at large to prevent traffic, accidents and pollution. The respondent No.1 is an expert in its domain and this Court would not substitute its own views for a decision taken by an expert in the field. Considering the interest of the petitioners also, there is no restriction qua the petitioners to carry on their business in the City except, plying heavy vehicles and private buses in the City during 8:00 am to 10:00 pm. In view thereof, it is open for the petitioners to continue their business 24X7.

12. In view of the aforesaid, the said restrictions by the impugned Notification No.G/UPK/Traffic/4/2022 dated 08.01.2022 cannot be said to be violative of Article 301 of the Constitution of India. Further, the said Notification is issued in the larger interest of public by the respondent No.1 and in view thereof, the submissions advanced by the learned advocate appearing for the petitioner that the petitioners be permitted 10 routes for the buses to ply, does not appeal to this Court. The issuance of such directions at the instance of one entity would resultantly have an effect of a mandate. No legal or fundamental right of the petitioners infringed by the impugned Notification wherein, the restrictions are only qua plying of the private passenger buses; (i) weigh more than 7500 kg (ii) with a seating capacity for 33 passengers or more and (iii) a sleeping facility vehicles in the Ahmedabad City between 8:00 am to 10:00 pm. It is always open for the petitioners to ply the buses in the unrestricted areas and in view thereof, the main contention raised by the petitioners with respect to infringement of fundamental rights of the petitioners itself does not hold good.

13. Further, the submission of learned advocate appearing for the petitioner that the impugned Notification creates two classes between (i) goods trucks and private buses and; (ii) state buses and private buses, also does not hold good considering the fact that the petitioners herein are in business of plying private buses inter-state and intra-state and the buses run by the AMTS are ‘stage carriage’ taking lacs of citizens from one area to another area within the City.

14. The petitioner is in receipt of ‘contract carriage’ permits i.e. for carrying passengers from one City to another but, only the buses of GSRTC which are authorized to carry individual passengers from one City to another. The Notification impugned imposes restrictions on the movement of medium and heavy vehicles plied by the private bus operators. It is always open for the petitioners to ply smaller vehicles like mini buses to carry their passengers through mini buses at the outskirts of the City and in view thereof, there is no restriction to the enjoyment to fundamental rights of the petitioners to carry on the business.

14.1 In the opinion of this Court, the aforesaid action undertaken by the respondent No.1 under Section 33(1)(b) and (c) of the Bombay Police Act, would not result in violation of the petitioners’ fundamental right to carry on business under Article 19(1)(g) and also Article 301 of the Constitution of India. Further, in the opinion of this Court, the impugned Notification No.G/UPK/Traffic/4/2022 dated 08.01.2022 issued by the respondent No.1 has uniform application qua the present petitioners and similarly placed private bus owners and the said Notification also cannot be said to be discriminatory towards the petitioners herein.

15. In view of the aforesaid, in the opinion of this Court, no case is made out to exercise extra ordinary jurisdiction under Article 226 of the Constitution of India. Accordingly, the present petition stands dismissed.