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2002 DIGILAW 326 (CAL)

Arunangshu Chakraborty v. Union of India

2002-05-10

Girish Chandra Gupta, Nure Alam Chowdhury

body2002
JUDGMENT Girish Chandra Gupta, J. This is a public interest litigation filed by a reporter of a Bengali daily newspaper. The subject-matter of challenge in this application is order No. 3683 issued by the Andaman and Nicobar Administration Secretariat revising the passenger ship fare. According to the revised tariff a non-islander is liable to pay almost double the amount payable by an islander. The order has been challenged inter alia on the ground of hostile discrimination. It would be convenient to set out the impugned order which is as follows :- "In super-session of this Administration's order No. 3076 dated 16/18th October, 1996 the Lieutenant Governor (Administration) Andaman and Nicobar Islands has been pleased to revise the passenger ship fare for various classes of accommodation on the mainland island sector as per the details given below:- Sl. Name of the Class of Fare for Fare for No. vessel accommodation islanders non-islanders (in Rs.) (in Rs.) 1. MV. Nicobar/ Deluxe 2,280.00 4,140.00 Nancowry ‘A’ Cabin 2,050.00 3,420.00 ‘B’ Cabin 1,520.00 2,700.00 Bunk 400.00 1,150.00 2. MV Harshavardhana Deluxe 2,280.00 4,140.00 1st Class cabin 2,050.00 3,420.00 4 & 6 Berth cabin 1,520.00 2,700.00 2nd Class cabin 1,330.00 2,070.00 Bunk 400.00 1,150.00 3. MV Akbar Deluxe 2,200.00 4,140.00 1st Class cabin 1,970.00 2,900.00 AC Dormitory 990.00 1,740.00 Ordinary bunk 360.00 990.00 This order shall come into force with effect from 1.12.99. By order and in the name of the Lt. Governor." 2. MV Akbar Deluxe 2,200.00 4,140.00 1st Class cabin 1,970.00 2,900.00 AC Dormitory 990.00 1,740.00 Ordinary bunk 360.00 990.00 This order shall come into force with effect from 1.12.99. By order and in the name of the Lt. Governor." 2. The Administration has sought to justify the aforesaid revision on the following grounds; "(a) I, however, say that the introduction of dual fare is one of the methods to stop influx of population as the main mode of transport being ship only, the people will be little bit reluctant to visit Andaman & Nicobar Islands on payment of higher fare than what is admissible to the islanders." "(b) I, however, say that the geographical condition of these islands are such that it would bear the load of population to a limited extent and the high rate of influx of population to these islands was considered not desirable and in the interest of people residing in these islands." "Thus, the A & N Administration after having a detailed deliberation with the representatives of different political parties and other organisations, came to the conclusion that to check the growing tendency of influx measures should be adopted in this regard for dual passenger fare structure in the shipping sector in between mainland and islands i.e. a higher rate of passenger fare to all non-islanders and a concessional rate of fare specifically applicable to the islanders who are continuously residing in these islands for last ten years possessing local certificate issued by the revenue authorities of the A & N Administration. It may be further placed on records herewith that the Govt. of India considering the geographical condition of these islands and the economical background of the people permanently residing in these islands is providing subsidy to a large scale in the shipping sector. The passenger fare in the shipping sector is determined and fixed by the A & N Administration keeping in view of the above subsidy and many other local existing conditions/factors of these islands. The non-islanders, in fact, who are basically coming in these islands for the purpose of tourism and for their own personal interest, do not deserve the subsidy-facility being provided to the islanders." 3. The non-islanders, in fact, who are basically coming in these islands for the purpose of tourism and for their own personal interest, do not deserve the subsidy-facility being provided to the islanders." 3. It would appear from the explanation furnished by the administration, noticed above, that (a) geographical condition of this island, (b) the economical background of the people residing in the island, are factors which have been taken into consideration for the purpose of fixing concessional rate for the islanders and the non-islanders basically coming to these islands for the purpose of tourism and for their personal interest have been kept outside the zone of concession obviously because they do not suffer the same geographical condition and the economical background. 4. It appears from the explanation furnished by the administration, noticed above, that persons visiting the island for the purpose of tourism or for their personal interest in the island have been sought to be kept outside the zone of concession. If this is so then in our considered opinion, the impugned order can be supported by a host of reasons. 5. People residing in the island have very often got to undertake involuntary journey between the island and the mainland for a variety of reasons including medical, educational, vocational, social and so on. It cannot be disputed that the people residing in the island suffer a geographical inconvenience. The only method of transportation between the mainland and the island for a common man is ship. A mainlander seeking to visit the island either for tourism or for personal interest in the island does not have to undertake an involuntary journey for any of the purpose for which an islander has to commute between the island and the mainland. In other wards, journey between the mainland and the island for an islander is a matter of compulsion whereas for the people residing in the mainland it is a matter of choice. Therefore, the people residing in the island are a class by themselves, and the classification intended for their benefit cannot be struck down on the touchstone of Article 14 or 15 of the Constitution. 6. So far so good; but problem arises when one comes across the fact that this benefit has been extended only to those people who are continuously residing in the island for 10 years and hold a local certificate. 6. So far so good; but problem arises when one comes across the fact that this benefit has been extended only to those people who are continuously residing in the island for 10 years and hold a local certificate. This further classification in the class is not to be found in the impugned order. But this is how it is stated to have been practised. What reason is there for this further classification amongst the residents of the island? There is none. The word islander has not been defined either in the impugned order or in any legislative enactment. From the reasons advanced by the administration itself in order to justify the dual fare it appears that this has been done for the benefit of the people residing in the island. Where is then the scope for this further classification between a resident of the island and a resident of the island? Does a resident of the island for more than 10 years suffer more inconvenience than a resident of the island who is there for more than 10 months or for that matter, for more than 10 weeks? The answer cannot but be in the negative. 7. Who is an islander? We would think whoever has an established home in the island either tenanted or his own and actually resides there out of his own free will with the intention of remaining there permanently or for an indefinite period or for a length of time and pursues any vacations either for his living or for his educational purpose is in our view a resident of the island and is entitled to be classed as an islander. The intention of remaining there permanently or for a length of time may be demonstrably clear from the fact that he has obtained a ration card or that he has obtained a telephone connection or that the has taken electric connection or that he has taken a gas connection or that he is in service or that he is a self-employed person or that he is pursuing any study or that he has got his child admitted in any school or college and so on and so forth. The basic thing is that he intends to reside in the islands either permanently or for an indefinite period or for a length of time which will distinguish him from merely being a tourist. The basic thing is that he intends to reside in the islands either permanently or for an indefinite period or for a length of time which will distinguish him from merely being a tourist. He in our view, who satisfies any of these conditions is entitled to be called a resident of the island and therefore an islander. Whoever is living with him, may be a member of his family is equally a resident of the island and therefore an islander. Any person who is ordinarily a resident in a constituency is entitled to have his name registered in the electoral roll for that constituency, under section 19 of the Representation of the People Act, 1950. Is it not absurd to suggest that a resident of the island may be qualified to become a voter in the island but he is not to be treated as an islander unless he has spent ten years of his life in the island? 8. In our view, the distinction sought to be made between the residents of the island on the basis of duration of stay operates unequally and has not been justified by the administration on the basis of any valid classification. 9. The Administration has undoubtedly the right to make a classification but the classification in order to be valid must be founded on an intelligible differentia and the differentia must have a rational relation to the object sought to be achieved. In this case a concessional fare structure has been designed for the residents of the island keeping in view the geographical conditions and the economical background of the residents of the island and for the purpose of checking influx into the island. The same economical background and the same geographical conditions are shared by the residents of the island irrespective of whether they have been residing there for 10 years or not. If the object is to check the influx into the island we fail to see how can this object be achieved by extending the benefit to those who have been residing in the island for less than 10 years. If the object is to check the influx into the island we fail to see how can this object be achieved by extending the benefit to those who have been residing in the island for less than 10 years. The practice adopted by the administration in extending the benefit of concessional rate of fare only to those who are residing in the island for more than 10 years and are holders of local certificate and denying the same to those who do not hold such certificate or who have not been residing in the islands for 10 years is in our view completely discriminatory and deserves to be condemned. This is a case the equals have been treated unequally. 10. We are supported in our view by a series of decisions of the Apex Court. We however content ourselves by quoting only one being the case of Venkateshwara Theatre vs. State of Andhra Pradesh, reported in 1993(3) SCC 677 , where their Lordships reiterated the law as follows:- "Article 14 enjoins the State not to deny to any person equality before the law or the equal protection of the laws. The phrase 'equality before the law' contains the declaration of equality of the civil rights of all persons within the territories of India. It is a basic principle of republicanism. The phrase 'equal protection of laws' is adopted from the Fourteenth Amendment to the U.S. Constitution. The right conferred by Article 14 postulates that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Since the State, in exercise of its Governmental power, has of necessity, to make laws operating differently on different groups of persons within its territory to attain particular ends in giving effect to its policies, it is recognised that the State must possess the power of distinguishing and classifying persons or things to be subjected to such laws. It is however, required that the classification must satisfy two conditions, namely, (i) it is founded on an intelligible differentia which distinguishes those that are grouped together from others; and (ii) the differentia must have a rational relation to the object sought to be achieved by the Act. It is not the requirement that the classification should be scientifically perfect or logically complete. Classification would be justified if it is not palpable arbitrary. It is not the requirement that the classification should be scientifically perfect or logically complete. Classification would be justified if it is not palpable arbitrary. (See: Re, Special Courts Bill, 1978.) If there is equality and uniformity within each group, the law will not be condemned as discriminative, though due to some fortuitous circumstance arising out of a peculiar situation some included in a class get an advantage over others, so long as they are not singled out for special treatment. (See: Khandige Sham Bhat vs. Agricultural I.T.O.)" 11. Now the question is what relief do we grant? The impugned order itself is not bad. It is the way in which it has been given effect by the administration is bad and illegal. Therefore, we issue a writ in the nature of mandamus directing the administration to grant facility of this impugned order to all the residents of the island without insisting upon any local certificate or continuous residence in the island for more than 10 years as a condition precedent. It is desired that the appropriate authority should frame rules in the light of this judgment. There will be no order as to costs. Nure Alam Chowdhury, J.: I agree. Appeal disposed of with directions.