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2004 DIGILAW 719 (CAL)

GOPAL CHANDRA GHOSH v. STATE OF WEST BENGAL

2004-11-19

ANIRUDDHA BOSE

body2004
ANIRUDDHA BOSE, J. ( 1 ) THE petitioner in the present writ petition applied for stage carriage permit in the route between Bishnupur and Tata via Taldanga, Khatra, Bandwan, katting and Barabazar etc. The original application in this regard was made on 21. 11. 1997. In fact, two applications were made one for temporary and one for permanent permit. At that point of time there was no inter-State reciprocal transport agreement in operation between the STA, West Bengal and the State transport Authority, Jharkhand. Subsequently, in 1988 the petitioner sent a representation to the State Transport Authority, West Bengal for considering grant of stage carriage permit in this route and it appears that another representation was made by the petitioner to the same authority on 19. 3. 2004 which were endorsed by various public bodies and several people's representatives in the area to be covered by the route proposed. Some people of that area also have made a similar representation around that time. The petitioner's prayer for permanent permit on that route however was rejected by the State Transport Authority, West Bengal by a resolution dated 27. 7. 2000 on the ground that the route was not approved in the final agreement. ( 2 ) CHALLENGING this resolution the petitioner approached this Court by filing a writ petition being W. P. No. 2553 of 2001, Gopal Chandra Ghosh vs. State of west Bengal and Ors. This writ application was disposed of by this Court with the following observation :"in that view of the matter, I direct the State Transport Authority, West bengal to verify the demand in the said route and if it is found to be genuine, it must contact the Jharkhand Authority and by discussion must arrive at a settlement on this issue so that an agreement is entered into in this regard. In case, such agreements is entered into, the writ petitioner will be entitled to apply afresh. " ( 3 ) SUBSEQUENTLY, a draft agreement between the State of West Bengal and jharkhand was issued on 4. 9. 2002 in pursuance of section 88 (5) of the Motor vehicles Act, 1988. In the agreement contained against serial number 109, one of the route envisaged was between Bishnupur and Tata via Taldanga, Khatra, bandwan, Ratting and Barabazar. The total distance between Bishnupur and tata through this route is 166 Kilometers. 9. 2002 in pursuance of section 88 (5) of the Motor vehicles Act, 1988. In the agreement contained against serial number 109, one of the route envisaged was between Bishnupur and Tata via Taldanga, Khatra, bandwan, Ratting and Barabazar. The total distance between Bishnupur and tata through this route is 166 Kilometers. ( 4 ) UPON publication of the draft agreement, the petitioner applied afresh for a permanent stage carriage permit in the route which was filed with the State transport Authority on 20. 12. 2002. This was submitted by the petitioner, as submitted by Mr. Chattopadhyay, learned advocate for the petitioner in pursuance of the order of this Court passed in W. P. No. 2539 of 2001 to which writ petition I have referred to above. There was no response to this application from the concerned respondents, as Mr. Chattopadhyay submits. The petitioner made a further representation on 16. 1. 2003. Thereafter hearing was given to him by the State Transport Authority on 20. 3. 2003. Since there was no decision passed in respect of such hearing, the petitioner moved another writ petition before this Court being W. P. No. 3956 (W) of 2003 which was subsequently referred to the Lok Adalat and the order of the Lok Adalat in this regard was as follows :"the matter will be considered by the concerned respondent authority in the next Board meeting to be held within eight weeks or soon thereafter, whichever is earlier. If the petitioner applicant satisfied the required condition, the same may be considered in accordance with law. With this observation the writ petition is, thus, disposed of. The order passed by the respondent authority be communicated as expeditiously as possible. " ( 5 ) SUBSEQUENTLY, the petitioner was granted a hearing on 18. 2. 2004 by the state Transport Authority, West Bengal and on that date it appears that his application for temporary permit was considered and the resolution of the State transport Authority in his case was an follows :"shri Gopal Chandra Ghosh, the applicant was represented by his learned advocate in the meeting and was heard. After hearing the STA, West Bengal resolved that STA, West Bengal will move to Jharkhand for concurrence for temporary permit after disposal of Court case. " ( 6 ) SO far as the draft agreement is concerned, the final agreement was effected on 29. 3. 2004. After hearing the STA, West Bengal resolved that STA, West Bengal will move to Jharkhand for concurrence for temporary permit after disposal of Court case. " ( 6 ) SO far as the draft agreement is concerned, the final agreement was effected on 29. 3. 2004. It is a part of the final agreement in substance under challenge in the present writ petition. The petitioner had applied for permit for the route which was specified against serial No. 109 of the draft agreement and this route was altogether deleted from the final agreement. Mr. Chattapadhyya has assailed this agreement on various other counts also, alleging other irregularities. He submits that the route between Tata and Bishnupur has been repeated against serial Nos. 46 and 98 of Annexure 'b' to the final agreement. The aforesaid route has been shown to be between Bishnupur and tata via Ghatsila, Chakulia and Bankura in both cases. There is apparent error however in this agreement in that distance between these two locations has been shown to be different. Against serial No. 46, the distance between tata and Bishnupur has been shown to be of 250 Kilometers, whereas in serial no. 98 for the same route in reverse order, the distance has been shown to be 166 Kilometers. ( 7 ) MR. Dey, learned advocate appearing for the Transport Authorities in this matter has agreed to the disposal of the writ petition without filing of affidavit. His main submission is that there has been no breach of any statutory provision in effecting of such deletion, as the petitioner has no vested right in deciding a particular route through which he is entitled to ply his vehicle under a stage carriage permit. Mr. Dey, learned advocate for the Transport Authorities submits that in the present case the authority concerned has considered the objections which were raised after publication of the draft agreement and upon considering such representation, the administration decided upon the fixing of route in the final agreement in public interest. He further submitted that so far as the issue of granting of temporary permit is concerned, the State Transport authority has already sent the request for concurrence before the State of jharkhand, who has not appeared in this matter in spite of service of notice. He submits that no intimation has as yet been received from the Transport authority of Jharkhand. He submits that no intimation has as yet been received from the Transport authority of Jharkhand. At the same time, Mr. Dey, learned advocate for the state respondents submitted that after finalisation of routes, the question of considering an application for temporary permit in the route as desired by the petitioner cannot be raised. So far as the allegation of irregularities are concerned, Mr. Dey has submitted that scope of correction is contained in the final notification itself and any person aggrieved by such error could approach before the authority of such error. Mr Dey further argued that an applicant for permit under in an inter-State route, under the scheme of the Motor Vehicles act, 1988, cannot be a chooser of his own route and that duty is to be exercised by the authority specified under the Act. In the present case the authority has decided the route after the agreement between the State Transport Authority, west Bengal and the State Transport Authority, Jharkhand. ( 8 ) THE main question that requires determination in the instant writ petition is as to whether deletion of the desired route of the petitioner which found place in the draft agreement was proper or not and whether before effecting such deletion the concerned authorities should have given the petitioner an opportunity of being heard. In other words, whether the principle of natural justice was violated in effecting such deletion. Mr. Chattapadhyay, learned advocate for the petitioner has argued that any State action is subject to judicial review and correction through that process is permissible if the same fraught with gross irregularity, arbitrariness and mala fide. For this proposition he has relied upon a decision of the Hon'ble Supreme Court in the case of M. T. Builder Pvt. Ltd. vs. Radhem Shaw reported in AIR 1999 SC 2468 . The paragraph he has placed in support of his submissions is as follows :"for the petitioner this judicial review is permissible against an administrative action if such action is against law or in violation of the prescribed procedure or is unreasonable, irregular or mala fide". He has also relied on a judgment reported in AIR 1987 SC 537 , Controller and auditor General of India vs. K. S. Jagannathan and Ors. He has also relied on a judgment reported in AIR 1987 SC 537 , Controller and auditor General of India vs. K. S. Jagannathan and Ors. and relied on paragraph 20 of the judgment which is reproduced as follows :"there is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of madamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for inplementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and order and give direction to complete the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion. " ( 9 ) FOR the same proposition he has relied on another Division Bench of this court in the case of Midnapore Zilla Nimna Buniadi Shikshak Shikshan Prapta bekar Sikshak Samity and Ors vs. State of West Bengal and Ors. reported in cwn 98 page 793. On factual score Mr. Chattapadhyay submitted that the route he had applied for is through an alignment which connects these two cities being Bishnupur and Tata through the shortest distance and this route would be for public benefit. He has also relied on a judgement of this Court delivered by an Hon'ble Division Bench reported in 1995 (1) CLJ at page 537, ashoke Kumar Mondal vs. State of West Bengal and Ors. in support of his submissions. He has also relied on a judgement of this Court delivered by an Hon'ble Division Bench reported in 1995 (1) CLJ at page 537, ashoke Kumar Mondal vs. State of West Bengal and Ors. in support of his submissions. ( 10 ) SO far as the question of subsistence of power of interference of this court exercising its Constitutional jurisdiction to correct an irregular, mala fide or arbitrary act of a public authority is concerned, there cannot be any doubt that such power subsists. However, it is well-established principle of law that it is the person alleging such illegal action has to discharge the initial onus of establishing such acts of arbitrariness, mala fide or irregularity to sustain his case based on breach of Article 14 of the Constitution of India. In the present case, the only irregularity in the final notification as has been pointed out by Mr. Chattapadhyay is repetition of the route between Tata and Bankura and the discrepancy in describing the distance between these two points. Barring this irregularity the entire exercise leading to the publication of the final notification has been conducted by the concerned authority as per requirement of statute. Mr. Chattapadhyay has submitted that; introduction of a new route in the final notification is not permissible under the law. It has been pointed out by him that such introduction has caused prejudice to his client. On this count, I am of the opinion that an applicant for a permit in an inter-State route has no vested right to formulate a route, and specifying such a route in the draft notification does not also create any right in favour of an intending operator for inclusion of such route in the final notification. No case of any gross arbitrations has been made out by the petitioner in deletion of such route in the final notification. The only case of the petitioner is that this was the shortest route. That by itself in my opinion cannot be an absolute factor for formulation of a route. The Transport Authorities are to consider several factors in formulating a route. I am thus not satisfied with the petitioner's argument on this count. ( 11 ) I also agree with the submission of Mr. Dey, learned advocate for the transport Authorities of West Bengal that though Mr. The Transport Authorities are to consider several factors in formulating a route. I am thus not satisfied with the petitioner's argument on this count. ( 11 ) I also agree with the submission of Mr. Dey, learned advocate for the transport Authorities of West Bengal that though Mr. Chattapadhyay's client has applied for the route which was specified against item No. 109 of the draft agreement, it should be contained in the final agreement only because he had applied for permit in the said route. This was done under the exercise of power under section 88 (5) of the Act which places Transport Authorities under no such obligation. Mr. Chattapadhyay submits that this was included in the draft agreement in pursuance of the direction of this Court passed in W. P. No. 2539 of 2001 to which I have referred to above. In this order also the duty to decide the route was finally left at the hands of the Transport Authorities. Thus in my opinion the petitioner has failed to establish any vested right in the said proposed route and it was not necessary that he should be provided with an opportunity of being heard before such deletion of the route. The provision for making objection and suggestion within 30 days from its publication is contained in clause 8f of the Final Agreement and in my opinion requirement for compliance of the principles of natural justice is substantially met by virtue of inclusion of such a clause in the agreement. The decision of the Hon'ble Division Bench of this Court in the case of Ashok Kumar Mondal (supra) also cannot be held to be an authority for the proposition that an intending operator has a vested right to run his vehicle through the shortest route between two places. Moreover, it appears from that judgement the reciprocating State had appeared through their learned advocate and had expressed no objection to the grant of permit in the route. ( 12 ) IN that case also another factor was present. The petitioner in that case was issued temporary permit in the route in question which is not so in the present case. The only point on which I am inclined to accept the argument of mr. ( 12 ) IN that case also another factor was present. The petitioner in that case was issued temporary permit in the route in question which is not so in the present case. The only point on which I am inclined to accept the argument of mr. Chattapadhyay is that there is apparent error in specifying the distance of the route between Tata and Bishnupur as it appears under the final agreement against serial Nos. 46 and 98. It is admitted position that distance in the route alignment as specified in the final agreement is of 255 Kilometers and the fact that the same route has been indicated twice with different length or distance reflects an error on the part of the authority. Mr. Chattapadhyay submits that in the proposed route between Tata and Bishnupur via Bandwan, the distance is 166 Kilometers though in item No. 98 of the final agreement a different alignment has been shown. In that view of the matter, I am of the opinion that the concerned authority should reconsider their decision vis-a-vis the petitioner's application for permit and in the event they find that 166 Kilometers was the distance for the route between Tata and Bishnupur, as per the desired alignment of the petitioner and the alignment was wrongly shown in the final agreement, then the petitioner's application should be considered afresh. In that light, the respondent No. 2 is directed to take up the application of the petitioner upon giving him an opportunity of being heard within six weeks from the date of communication of this order. So far as petitioner's application for temporary permit, the concerned authorities are directed to take a final decision in this matter within a further period of four weeks from the date of communication of this order. The State of West Bengal and the State of Jharkhand are directed to consider the matter and take a decision in accordance with law and in particular having considered the clause 8f of the final agreement. The writ petition is accordingly disposed of. There shall be no order as to costs. ( 13 ) LET an urgent xerox certified copy be supplied to the parties, if applied for, on an usual undertaking as early as possible. Writ petition disposed of.