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2007 DIGILAW 773 (CAL)

STATE OF WEST BENGAL v. Barun Maity

2007-10-03

PRASENJIT MANDAL, PRATAP KUMAR RAY

body2007
Judgment : PRATAP KUMAR RAY, J (1) HEARD the learned Advocates appearing for the parties. (2) IN view of the very tenor of the order dated 1st December, 2006 passed in W. P. No. 1493 of 2006, this Court is of the view that the appeal and the application could be disposed of while considering the stay application. Hence, all the formalities regarding hearing of the appeal and service of notice of appeal stand dispensed with as the parties are appearing before us. Appeal is taken up for hearing. (3) THE impugned judgment under appeal is set out hereinbelow:- "the Court: Since the petitioner had applied for a permit to operate his vehicle on a route or routes much prior to Notification dated 2/6 August, 2004, the authority concerned is directed to issue fresh offer letter in favour of the petitioner within a period of three weeks from the date of communication of this order. After the petitioner has complied with the conditions of the offer letter, permit would be granted in favour of the petitioner within a week from compliance of the conditions of the offer letter. Writ petition is disposed of accordingly. There would be no order as to costs. " (4) TO avoid the air pollution and congestion of the vehicle, a Notification was published on 6th August, 2004 by the Government prohibiting grant of permit in Central Business District namely, esplanade, Band Stand, Howrah station and approach areas of Howrah Bridge. The relevant prohibitory clauses regarding grant of permit in terms of the said Notification reads such:- "1. No new bus route be formulated and permits be issued which may pass through the Central business District, viz. Esplanade and band Stand in Kolkata and Howrah station and approach areas of howrah Bridge (Rabindra Setu); till further orders; 2. No new permit for Stage Carriage shall be issued which may originate/terminate in Esplanade and Band Stand in Kolkata and howrah Station; 3. No new bus route shall also be created/formulated in Kolkata and Howrah without creating any appropriate parking place having requisite amenities for both the passengers as well as the transport workers. 4. No new permit shali be issued for autorickshaw operating within Kolkata Metropolitan area. " (5) THE legality and the validity of the said Notification became the subject-matter in the case of Sujata Ganguly and ors. v. State of West Bengal and Ors. 4. No new permit shali be issued for autorickshaw operating within Kolkata Metropolitan area. " (5) THE legality and the validity of the said Notification became the subject-matter in the case of Sujata Ganguly and ors. v. State of West Bengal and Ors. , being F. M. A. No. 604 of 2004. By the judgment and/or order dated 27th September, 2005, the Division Bench of this Court upheld the legality and validity of the said Notification. In terms of the Clause 5. 1, no permit could be granted in the route in question as would touch/originate/terminate the Central Business District at Kolkata. Admittedly, the application seeking such permit by the writ petitioner was in the route Keyageria to Garia via central Business District. In terms of Clause 5. 1 of the judgment, it is explicit that no route permit could be granted in respect of new application. The writ petitioners application did not culminate to a decision granting permit by issuing any offer letter. As such learned trial Judge with due respect failed to address the issue in proper angle. To check the air pollution and/or congestion of the vehicle as a prime consideration, said Notification was issued, which is beneficial for the commuters as well as the citizen living in and around the city of Kolkata. Giving a priority attention thereof, the Division Bench in Sujata ganguly (supra) upheld the legality and validity of the prohibitory Notification dated 6th August, 2004. Considering all the issues as there is a complete ban on grant of permit the judgment under appeal, is not legally sustainable and the authority also has no scope to consider this application as filed seeking route permit touching the Central Business District of Kolkata. (6) WITH that findings and observations we are of the view that the impugned judgment is not sustainable and is accordingly set aside and quashed. The appeal is allowed. Writ on the aforesaid findings stands dismissed. Stay application is also disposed of accordingly.