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1994 DIGILAW 160 (CAL)

State Transport Authority, West Bengal v. Joydeb Samanta

1994-05-05

ASHOK KUMAR CHAKRABORTY, BHAGABATI PROSAD BANERJEE

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JUDGMENT Banerjee, J. This is an appeal filed by the appellant, State Transport Authority, West Bengal against the order dated 23rd March, 1993 passed by Kalyanmoy Ganguli, J. granting an interim order of injunction to issue temporary permit on the route in question and to go on issuing successive temporary permit which would remain valid till the disposal of the statutory appeal pending before the Motor Vehicles Tribunal constituted under the provision of the Act and the rules framed thereunder. The fact of this case is that the writ petitioner/opposite party Joydeb Samanta was given successive permits by the State Transport Authority, West Bengal in the route Teropakhia to Calcutta (referred to as the said route). In a proceeding being Special Leave petition No. 8592 of 89 the Hon'ble Supreme Court on 10th August, 1989 directed the writ petitioner/opposite party to apply for a permanent permit to the appellant-State Transport Authority, West Bengal. It was directed that the said State Transport Authority will consider the application for permanent permit and dispose of the same within a period of two months. Pursuant to the directions of the Supreme Court the application for permanent permit was submitted in the office of the State Transport Authority on 6th September, 1989. On 5th October, 1989 the State Transport Authority informed the writ petitioner/opposite party that the said application for permanent permit had been rejected. Being aggrieved by and dissatisfied with the said decision of the State Transport Authority, the writ petitioner/opposite party filed a statutory appeal under Section 89 of the Motor Vehicles Act, 1988 (referred to as the said Act) to the appellant State Transport Authority, West Bengal. The appeal came to be registered as State Transport Appeal No. 7 of 1990. In the said appeal, the writ petitioner/opposite party filed an application for interim stay which was rejected by the Tribunal on the ground that the certified copy of the resolution of the State Transport Authority rejecting the application for permit was not annexed to the said petition. The said Tribunal directed the State Transport Authority to supply the certified copy of the resolution. On 24th December, 1992 the writ petitioner/opposite party preferred an application under Article 227 of the Constitution challenging the rejection order of the Tribunal and the said application came to be registered as C.O. No. 38 of 1991. The said Tribunal directed the State Transport Authority to supply the certified copy of the resolution. On 24th December, 1992 the writ petitioner/opposite party preferred an application under Article 227 of the Constitution challenging the rejection order of the Tribunal and the said application came to be registered as C.O. No. 38 of 1991. The C.O. No. 38 of 1991 was finally heard and disposed of by N.K. Mitra, J. On 6th May, 1992 directing the State Transport Authority to deliver the certified copy of the resolution within a week from date. Liberty was given to the petitioner to apply for interim order before the said Tribunal. On 16th May, 1992 the said order dated 6th May, 1992 was served upon the State Transport Authority. But the certified copy of the resolution had not been given and/or delivered to the petitioner, inspite of the order of N.K. Mitra, J. There was no explanation as to why the same could not be complied with During the pendency of the said statutory appeal, an application for temporary permit was submitted to the State Transport in the said route. In the meantime an application for interim order was taken out by the writ petitioner/opposite party in connection with the said pending appeal before the said Tribunal. The said Tribunal upon bearing the parties directed the State Transport Authority to issue temporary permit to the writ petitioner/opposite party and further directed that the permit so granted will remain valid till the disposal of the appeal pending before the Tribunal. This order was passed by the Tribunal on 28th July, 1992 upon notice to the State Transport Authority. The said order dated 28th July, 1992 was served upon the State Transport Authority on 31.7.92. The order of the Tribunal was not carried out by the State Transport Authority. Since, the order of the Tribunal was not carried out by the State Transport Authority, the writ petitioner/opposite party filed an application before the learned Single Judge of this court whereupon Altamas Kabir, J was pleased to direct the State Transport Authority by order dated 11th September, 1992 to carry out the order of the Motor Vehicles Tribunal dated 28th July, 1992 whereby the tronima; directed the State Transport Authority to grant temporary permit which would remain valid till the disposal of the appeal pending before the Tribunal. Against the order passed by Altamas Kabir, J. dated 11th September, 1992 no appeal was preferred by the appellant and that the said order had been allowed to reach its finality. In this connection, reference may be made to the decision of the Supreme Court in the case of (1) Bhopal Sugar Industries Ltd. v Income Tax Officer, reported in AIR 1961 SC 182 wherein the Supreme Court had occasion to lay down the law in this behalf. In that case the Income Tax Officer virtually refused to carry out the order of the appellate tribunal which was passed in exercise of the appellate power in respect of the assignment made by him. The Supreme Court held in this case that such refusal is in effect a denial of justice and is further more destructive of one of the basis principles in the administration of justice based as it is in this country on the hierarchy of Courts. It was further observed that if a subordinate tribunal refuses to carry out directions given to it by a superior tribunal in the exercise of its appellate powers, the result will be chaos in the administration of justice......“.........” It further appears that the said order dated 11th September, 1992 passed by Altamas Kabir, J. was also not carried out for which an application for contempt of court was filed by the writ petitioner/opposite party. Thereafter on 1st October, 1992 a temporary permit along with a time table for the period from 5.10.92 to 1.11.92 was issued in favour of the respondent-petitioner. After expiry of the said temporary period no further temporary permit has been issued by the State Transport Authority till date. Thereafter on 25.9.92 (25.9.97.) the appellant, State Transport Authority filed an application under Article 227 of the Constitution of India for setting aside the order dated 28th July, 1992 passed by the Tribunal directing the State Transport Authority to grant temporary permit to the petitioner. Kalyanmoy Ganguly, J. on hearing the said application under Article 227 of the Constitution did not grant any interim order. Directions were given to file affidavits. Kalyanmoy Ganguly, J. on hearing the said application under Article 227 of the Constitution did not grant any interim order. Directions were given to file affidavits. Because of the refusal to pass any interim order in this matter, the order passed by the tribunal on 28th July, 1992 remained valid and operative and furthermore, the order passed by Altamas Kabir, J. on 11th September, 1992 to carry out the order of the tribunal dated 28th July, remained valid and operative. Thereafter, on 1st October, 1992 a temporary permit along with a time table for the period from 5.10.92 to 1.11.92 was issued in favour of the respondent petitioner. After expiry of the said temporary period no further temporary permit has been issued by the State Transport Authority till date. On 4th February, 1993 an application was taken out for changing of time table since the time table was clashing with other operators. The proposed time table was recommended by the Inter Regional Bus Owners’ Association. On 23rd March, 1993 the writ petitioner/opposite party took out a writ application before the Kalyanmoy Ganguly, J. and in the said writ application Kalyanmoy Ganguly, J. was pleased to pass to following directions :- "1. to issue temporary permit in the said route and to go on issuing successive temporary permit which will remain valid till the disposal of the appeal pending before the Tribunal. 2. To consider the application for re-fixation of the time table." F.M.A.T. No. 1224 of 1993 was filed by the State Transport Authority, West Bengal against the abovementioned order dated 23.3.93 passed by Kalyanmoy Ganguly, J. along with an application for stay. 2. Mr. Dilip Seth, learned counsel, appearing on behalf of the appellant duly assisted by Mr. N.K. Khan, learned counsel, submitted that before the learned Trial Judge there was no specific prayer with regard to the issue of the temporary permit pursuant to the order of the tribunal earlier and accordingly, the order passed by the learned trial Judge should be set aside. It was further submitted that the High Court under Article 226 of the Constitution cannot travel beyond the prayer made in the writ application. 3. Mr. It was further submitted that the High Court under Article 226 of the Constitution cannot travel beyond the prayer made in the writ application. 3. Mr. Asoke De, learned counsel, appearing on behalf of the respondent-writ petitioner narrated the entire history of the case which had a chequered career and submitted in the first place that it is too late to contend that the writ court has no power to mould relief. It was submitted that the court has a wide discretion of the matter of framing the writ to suit the exigency of a particular case and the writ petitioner could not be thrown out on the ground that, the proper prayer and/or direction had not been prayed for. In this connection, reference was made to the decisions of the Supreme Court, Calcutta High Court in the following cases :- (2) Charanji Lal Chowdhury v. Union of India & Ors., AIR 1951 SC 41 . (3) Smt. Nihar Kumari Devi v. Commissioner of Police, AIR 1953 Calcutta 179 (Full Bench). (4) Dwarkanath v. Income Tax Officer, AIR 1966 SC 81 ; and (5) M/s. Shovachand Mulchand v The Collector of Central Excise and Ors, AIR 1968 Cal 175 (DB). (3) Smt. Nihar Kumari Devi v. Commissioner of Police, AIR 1953 Calcutta 179 (Full Bench). (4) Dwarkanath v. Income Tax Officer, AIR 1966 SC 81 ; and (5) M/s. Shovachand Mulchand v The Collector of Central Excise and Ors, AIR 1968 Cal 175 (DB). The principle in this regard has been clearly enunciated in Forrest G. Feeroes in his "Law of Extra Ordinary Legal Remedies" at page 283 and in para 238 observed as follows :- "Strictly speaking, the prayer for relief is, perhaps, no part of the petition proper, and, therefore, where the issue is joined, relief embraced within the pleadings may be granted although the complaint omits the prayer altogether............To illustrate : While the practice is specifically to ask for an alternative writ in the event the court refuses a peremptory mandamus, yet under a prayer asking for a peremptory writ and also for such other and further relief as relator may be entitled to, a court would be warranted in granting an alternative writ if the facts justify such a course, notwithstanding the absence of any specific prayer thereof; and where relator sets out a substantial right in the petition, the proceeding will not fall merely because he asks for too much or mistakes to some extent the relief to which he is entitled, as the court, in awarding the peremptory writ, will mould it according to the just rights of all the parties." Supreme Court in these cases have laid down the proposition that the power of the court to grant relief is not confined to the prayer made before the court. But it appears, in the instant case, there was a prayer specified in prayer "e" to allow the writ petitioner/ opposite party to ply its vehicle on the route on the basis of proposed time table. If there are clear averments and a clear case is made out for grant of relief, the court's hands are not tied up and technicalities have no place in such a case. 4. Admittedly, in the instant case, the tribunal in exercise of power conferred under the Motor Vehicles Act passed the order directing the appellant to grant temporary permit and to remain the same valid till the disposal of the appeal pending before the tribunal. The appeal is still pending. 4. Admittedly, in the instant case, the tribunal in exercise of power conferred under the Motor Vehicles Act passed the order directing the appellant to grant temporary permit and to remain the same valid till the disposal of the appeal pending before the tribunal. The appeal is still pending. The order of the tribunal was not carried out by the appellant whereupon Altamas Kabir, J. on a writ application filed by the writ petitioner/opposite party directed the State Transport Authority to carry out the order of the tribunal which was not carried out. Thereafter, an application under Article 227 of the Constitution of India was filed against the order of the tribunal for not granting temporary permits. No stay was granted on the application under Article 227 of the Constitution and as such it is obligatory on the part of the appellant, State Transport Authority to go on issuing temporary permits in terms of the order passed by the tribunal. Order of the tribunal was also directed to be carried out by Altamas Kabir, J. by his order dated 11th September, 1992. The said order and/or directions are not the subject matter of the writ application and consequently, the matter could be considered by us. In appeal we cannot travel beyond the scope and ambit of the writ application. It appears that in the instant case, the appellant was not acting properly and bonafide in the matter from the very beginning. It is not understood why certified copy of the order of the tribunal was not given and for the purpose the writ petitioner/opposite party had to move a writ application and to get an order under Article 226 of the Constitution for the purpose of getting a certified copy which was also not carried out. Secondly, the order of the tribunal was not carried out for which the writ petitioner/opposite party had to move the second round to the High Court under Article 226 of the Constitution for directing to the appellant to carry out the order of the tribunal. The order of the tribunal is still existing and we cannot touch. in this appeal, the order of the tribunal and the order of Altamas Kabir, J. by which Altamas Kabir, J. directed the appellant to carry out the order of the tribunal. The order of the tribunal is still existing and we cannot touch. in this appeal, the order of the tribunal and the order of Altamas Kabir, J. by which Altamas Kabir, J. directed the appellant to carry out the order of the tribunal. Since the order of the tribunal is still valid and subsisting we do not find any valid reason for the appellant to Come up before this court and to get an order in this appeal so that the order of the tribunal and the order of Altamas Kabir, J. may be made nugatory. We also do not find any reason to interfere with the order passed by the learned trial Judge whereby the learned trial Judge has simply directed in the facts and circumstances of the case when the order of the tribunal was remaining valid and operative and had not be stayed in any proceeding and that when there is an order passed. by Altamas Kabir, J. Whereby it was obligatory on the part of the appellant to carry out that order. The learned trial Judge has simply directed them to do what they are required to do under order of the tribunal as well as the order of the learned trial Judge, Altamas Kabir, J. No appeal has been preferred against the order passed by Altamas Kabir, J. which had its reached its finality and as a result, so far as the order of the tribunal is not stayed and/or set aside and/or recall, the appellant is under a statutory obligation and/or duty to carry out that order of the tribunal. In this appeal we have no jurisdiction to interfere with the order of the tribunal and/or order passed by Altamas Kabir. J. Accordingly, we do not find any reason whatsoever to interfere with the order passed by the learned trial Judge and accordingly, the appeal is dismissed with costs assessed at 20 G.Ms. Chakraborty, J. : I agree.