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2000 DIGILAW 485 (CAL)

Sushil Kumar Daga v. State of West Bengal

2000-09-18

BHASKAR BHATTACHARYA

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JUDGMENT In this writ application, the writ petitioners, two existing permanent stage carriage permit holders, have prayed for rescinding the temporary permit issued in favour of respondent No.5 in respect of Route Howrah Station to Zhikira extended upto Muchighata. 2. The grievance of the writ petitioners is that it appears from the temporary permit granted in favour of respondent No.5 that the purpose of such permit has not been mentioned in the said permit which is essential under Section 87(1) of the Motor Vehicles Act. According to the writ petitioners, a temporary permit can be granted only if the conditions mentioned in Clauses (a) to (d) of Section 87(1) of the Motor Vehicles Act are complied with. The petitioners further complain that the said permit has been granted in violation of the order passed by this Court in a different writ application. 3. After hearing the learned Counsel for the parties and after going through the materials-on record I am of the view that the present petitioners have no locus standi to maintain this application. 4. It is now settled law that existence of a right and the infringement thereof are the foundation of the exercise of jurisdiction under Article 226 of the Constitution of India. Such right may be a fundamental right or an ordinary legal right. 5. The rights that can be enforced under Article 226 of the Constitution of India, must ordinarily be the right of the petitioners except in the case of habeas corpus, quo warranto or writ involving public interest. The present case does not fall under any of the aforesaid exceptions. In this connection, reference may be made to the decisions of the Apex Court in the cases of (1) State of Punjab v. Suraj Prakash, AIR 1963 SC page 507 ; (2) State of Orissa v. Ram Chandra, AIR 1964 SC page 516; (3) Calcutta Gas Co. v. State of West Bengal, AIR 1962 SC 1044 . 6. As pointed out by the Supreme Court in the case of (4) Mithilesh Garg v. Union of India reported in AIR 1992 SC page 443, grant of a new permit cannot prejudicially affect the right of the existing permit holder to run his business infringing his fundamental right to carryon business. 6. As pointed out by the Supreme Court in the case of (4) Mithilesh Garg v. Union of India reported in AIR 1992 SC page 443, grant of a new permit cannot prejudicially affect the right of the existing permit holder to run his business infringing his fundamental right to carryon business. Therefore, even if I assume for the sake of argument that in this case temporary permit has been granted to the respondent No.5 in violation of Section 87 of the Act, the petitioners, existing permanent permit holders, cannot impugn such act of the Regional Transport Authority in this application; because by such act neither the fundamental nor any other existing right of the petitioners has been violated. Position however would have been different; if in spite of being similarly placed, the petitioners' application for similar permit was rejected but the authority granted such permit to the respondent No.5. In such a situation, the petitioners could allege infringement of Article 14 of the Constitution of India. 7. Mr. Deb Roy, the learned Advocate appearing on behalf of the petitioners in this connection strongly relied upon the observation of S. B. Sinha, J. in the case of (5) Howrah Bus Syndicate v. R.T.A., Howrah reported in 1996(1) CLJ page 397 at Paragraphs 32 and 33 of the said decision. 8. After going through the said decision I find that His Lordship after taking note of the case of Mithilesh Garg (supra) made the following observation at Paragraph 33 :- "It, however, does not mean that any other person has also no right to question the grant of a permit by Regional Transport Authority or the State Transport Authority if it acts in violation of the mandatory provisions of law." 9. Again in the next paragraph His Lordship held that "this Court in exercise of its jurisdiction under Article 226 of the Constitution of India can issue a writ of certiorari in the event a statutory authority has exceeded its jurisdiction or has usurped a jurisdiction when it has none or on such similar grounds". 10. With great respect to His Lordship, I am unable to accept those observations as a general proposition of law. 10. With great respect to His Lordship, I am unable to accept those observations as a general proposition of law. As pointed out by the Supreme Court in the decisions referred to above, an illegal order can be set aside in the writ jurisdiction only at the instance of a person having locus standi to maintain such application; otherwise, a rickshaw puller of Calcutta can file a writ application challenging an illegal order of grant of temporary permit by the Regional Transport Authority, Purulia notwithstanding the fact that such rickshaw puller is in no way affected by such grant nor will such grant infringe the right of such a rickshaw puller. 11. Mr. Deb Roy further places strong reliance upon the decision of this Court in the case of (6) Sanjit Kumar Sarder and Drs. v. State of West Bengal and Drs. reported in AIR 1996 Calcutta page 135. After going through the said decision, I find that the same has no application to the case before us. . In the aforesaid case an application for grant of temporary permit having been rejected, the applicant came before this Court. While disposing of such an application, Banerjea, J. held that in the absence of any purpose or reason mentioned in the application for grant of such permit, the Regional Transport Authority rightly rejected such application. Thus, the question of locus standi was not involved in the said decision. Therefore, the said decision is of no avail to the petitioners' herein. 12. The other contention of Mr. Deb Roy that the temporary permit in favour of respondent No.5 was granted in violation of interim order passed by this Court in a different writ application is equally devoid of any substance. If there has been really any violation of such order, the appropriate' remedy of the petitioner is to apply before that Court alleging violation of that order. But for enforcement of such order, a separate writ application is not maintainable. Thus, this writ application is dismissed. In the facts and circumstances of the case there will be however no order as to costs.