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2011 DIGILAW 1443 (CAL)

Provati Mondal v. State of West Bengal

2011-11-24

Debasish Kar Gupta

body2011
The judgment of the Court was as follows:- This writ application is directed against a resolution dated January 7, 2011 adopted in the meeting of the respondent No.2 rejecting the application of the petitioner dated December 14, 2010 for granting a permit to ply his vehicle (bus) on the route from Burdwan to Baharampur. By virtue of the impugned resolution, the petitioner was directed to submit his application before the concerned Regional Transport Authority for consideration of his application for issue of permit covering to adjoining districts. 2. It is submitted by the learned Counsel appearing on behalf of the petitioner that in view of the proceedings of sub-rule 1 of Rule 87 of the West Bengal Motor Vehicles Rules, 1989, the respondent No.2 should assume to itself the jurisdiction to grant stage carriage permit in respect of routes covering more than two regions or in respect of routes falling within two or more regions. 3. It is also submitted by him that in view of the Govt. Notification dated November 16, 1995 issued by the Govt. of West Bengal, Transport Department, in exercise of sub-section 2 of Section 69 of the Motor Vehicles Act, 1988, the respondent No.2 should consider the application for granting stage carriage permit for plying the vehicle covering two or more regions. It is also submitted by him that in view of another Govt. Notification No. 551-WT/3M-155/2005 dated February 16, 2006 issued by the Govt. of West Bengal, Transport Department, the respondent No.2 was the appropriate authority to consider the application of the petitioner. 4. The attention of this Court is drawn towards the Stage Carriage Permit bearing PSTP No.84/2011 (i/r) issued in favour of another operator to show that the respondent No.2 had issued the Stage Carriage Permit to other operator for plying his vehicle on the same route. 5. The learned Counsel appearing on behalf of the petitioner relies upon the decision in the matter of Sanjit Chakraborty v. State of West Bengal, reported in AIR 2007 Cal 252 . 6. On the other hand, it is submitted by the learned State Advocate that in view of the provisions of sub-section 1 of Section 69, the respondent No.2 was not the appropriate authority to deal with the application of the petitioner. It is also submitted by him that the Govt. 6. On the other hand, it is submitted by the learned State Advocate that in view of the provisions of sub-section 1 of Section 69, the respondent No.2 was not the appropriate authority to deal with the application of the petitioner. It is also submitted by him that the Govt. Notification dated November 6, 1995 was issued dealing with the permits relating to Inter State Routes. With regard to the Govt. Notification dated February 16, 2006, it is submitted by him that in view of the decision of a Division Bench of this Court in the matter of Sujata Ganguly and Ors. [ In Re: FMA No.604 of 2004], the above Govt. Notification was passed enabling the respondent No.2 to deal with the applications for granting Stage Carriage Permit covering two or more regions in certain cases. According to him, the instant case is not covered by the above Govt. Notification. With regard to the decision in Sanjit Chakraborty [supra] it is submitted by him that it is not in dispute that the respondent No.2 had the power and jurisdiction to perform duties of Regional Transport Authority in respect of a route covering two or more regions, but it is the discretion of the respondent No.2 to decide as to whether it would exercise such power or not. 7. Having heard the learned Advocates for the respective parties, as also upon consideration of the facts and circumstances of this case, I find that the issue involved in this writ application is the power and jurisdiction of the respondent No.2 to deal with an application in respect of granting Stage Carriage Permit to ply a vehicle [bus] covering two or more regions. 8. For proper adjudication of the issue involved in this case, the provisions of sub-section 1 of Section 69 of the Motor Vehicles Act, 1988 is quoted below:- 69. 8. For proper adjudication of the issue involved in this case, the provisions of sub-section 1 of Section 69 of the Motor Vehicles Act, 1988 is quoted below:- 69. General provision as to applications for permits: (1) Every application for a permit shall be made to the Regional Transport Authority of the region in which it is proposed to use the vehicle or vehicles: Provided that if it is proposed to use the vehicle or vehicles in two or more regions lying within the same State, the application shall be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies, and in case the portion of the proposed route or area in each of the regions is approximately equal, to the Regional Transport Authority of the region in which it is proposed to keep the vehicle or vehicles: Provided further that if it is proposed to use the vehicle or vehicles in two or more regions lying in different States, the application shall be made to the Regional Transport Authority of the region in which the applicant resides or has his principal place of business." "9. In view of the above provisions, I find that there is a statutory mandate to deal with the applications for granting Stage Carriage Permit, to ply a vehicle covering two or more regions. According to such mandate, the Regional Transport Authority of the region in which the major portion of the proposed route or area lies is the appropriate authority to deal with an application. 10. In order to examine the applicability of Govt. Notification dated November 6, 1995, the same is quoted below:- ''In pursuance of Section 69(2) of the M.V. Act (Act 69 of 1988) the Governor has been pleased to decide that all applications for permits made under Section 69(1) of the M. V Act, 1988 for any vehicle or vehicles proposed to be used in two or more regions lying in West Bengal and any other State shall be made to the State Transport Authority, West Bengal by an applicant residing in West Bengal or having his principal place of business in West Bengal. By order of the Governor Sd/- Arun Mishra Joint Secretary to the Govt. of West Bengal." 11. After considering the above Govt. By order of the Governor Sd/- Arun Mishra Joint Secretary to the Govt. of West Bengal." 11. After considering the above Govt. Notification, I find that the above notification was issued in exercise of the provisions of sub-section 2 of Section 69 of the Motor Vehicles Act, 1988 in dealing with the matter relating to application for granting Stage Carriage Permit to ply a vehicle covering two or more regions in West Bengal and any other State upon further consideration of the provisions of the sub-section. Therefore, the above provision was regarding application in respect of granting Stage Carriage Permit on Inter State Route. It had no manner of application in the instant case. 12. For proper appreciation of the Notification dated February 16, 2006, the same is quoted below:- "No.551-WT/3M-155/2005 The State Transport Authority, West Bengal has resolved in its meeting held on 24.11.2005 to recommend to the Government for declaring a policy regarding grant of Inter-Regional as well as Inter-State Stage Carriage permits in pursuance of the directions of the Hon'ble Division Bench of the Hon'ble High Court at Calcutta in FMA NO.604 of 2004 (Re: Sujata Ganguly & Ors.) After careful consideration of the matter, in exercise of powers conferred under sub-section 3(a) & (b) of Section 68 of the Motor Vehicles Act, 1988, the Government has been pleased to consider it necessary that for betterment of passenger transport in the State and for maintenance of better co-ordination and uniformity in the policy-decision regarding issue of Stage Carriage Permit, State Transport Authority should be allowed to issue permits in respect of Stage Carriage Routes covering two or more regions, in certain cases. Accordingly, the Governor is further pleased to direct that:- 1. Application for grant of Stage Carriage Permit on route covering two or more regions -shall be received, and considered by the State Transport Authority, West Bengal, if anyone of the Regional Transport Authorities involved recommend such route. 2. Application for grant of Stage Carriage Permit on route covering three or more regions shall be received as considered by the State Transport Authority, West Bengal if anyone of the Regional Transport Authorities involved recommend such route or if such routes are notified under Section 68(3)(ca) or under Section 99 of the Motor Vehicles Act, 1988 or in any other case. 3. 3. The State Transport Authority, West Bengal will continue to issue permits in Inter-State routes or in the route formulated by the State Government. This shall take effect on the date of publication of the same in the Official Gazette. By order of the Governor Dilip Kumar Baksi OSD & Ex-Officio Deputy Secretary to the Govt. of West Bengal.” 13. After considering the above provisions, I find that by virtue of the same, the respondent No.2 was directed to deal with the matter for permits in certain cases specified in Clauses 1, 2 and 3. I further find that the above Govt. Notification was issued in exercise of powers conferred by sub-section 3(a) and 3(b) of Section 68 of the Motor Vehicles Act. Therefore, the scope of issuance of the notification has to be examined in the light of the above provisions of the Motor Vehicles Act, 1988. For the above purpose, the provisions of sub-section 3 of Section 68 of the Motor Vehicles Act, 1988 are quoted below:- "68. Transport Authorities: (3) The State Transport Authority and every Regional Transport Authority shall give effect to any directions issued under Section 67 and the State Transport Authority shall, subject to such directions and save as otherwise provided by or under this Act, exercise and discharge, 'throughout the State, the following powers and functions, namely:- (a) to co-ordinate and regulate the activities and policies of the Regional Transport Authorities, if any, of the State; (b) to perform the duties of a Regional Transport Authority where there is no such Authority and, if it thinks fit or if so required by a Regional Transport Authority, to perform those duties in respect of any route common to two or more regions; (c) to settle all disputes and decide all matters on which difference of opinion arises between Regional Transport Authorities; and (ca) Government to formulate routes for plying stage carriages; and (d) to discharge such other functions as may be prescribed." 14. After harmonious reading of the above provisions of the Motor Vehicles Act and the Notification under reference, I find that the instant case has not been covered by the above notification. Further, in view of the provisions of Clauses (a), (b) and (ca), I find that the notification under reference covered the fields mentioned therein. 15. After harmonious reading of the above provisions of the Motor Vehicles Act and the Notification under reference, I find that the instant case has not been covered by the above notification. Further, in view of the provisions of Clauses (a), (b) and (ca), I find that the notification under reference covered the fields mentioned therein. 15. So far as the decision of Sanjit Chakraborty [supra] is concerned, I find that the subject-matter of challenge in that route was for granting of a Stage Carriage Permit in the route covering two or more regions by the State Transport Authority, Govt. of West Bengal. It has been decided in Paragraph 4 of the above decision that the State Transport Authority would have the power and jurisdiction to perform the duties of Regional Transport Authority in respect of any route covering two or more regions. Upon consideration of the provisions of Clause (b) of sub-section 3 of Section 68, the Division Bench of this Court has arrived at such a conclusion in the judgment under reference. 16. After a plain reading of the above provisions of the Motor Vehicles Act, 1988, I find that the above provision was application in respect of a region where there was no Regional Transport Authority. 17. Therefore, the above decision has no manner of application in this case. 18. One may not forget that treating the words of the judgment as the words in the legislative enactment and disposal of the cases placing reliance on them without enacting its applicability is improper. Reference may be made to the decision of Arijit Punjab National Bank v. R. L. Vaid & Ors., reported in AIR 2004 SC 4269 and the relevant portion of the above decision is quoted below:- "We find that the High Court has merely referred to the decision in R.K. Jain's case (supra) without even indicating as to applicability of the said decision and as to how it has any relevance to the facts of the case. It would have been proper for the High Court to indicate the reasons and also to spell out clearly as to the applicability of the decision to the facts of the case. It would have been proper for the High Court to indicate the reasons and also to spell out clearly as to the applicability of the decision to the facts of the case. There is always peril in the treating the words of a judgment as though they are words in a Legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a difference between conclusions in two cases. Disposal of cases by merely placing reliance on a decision is not proper. Precedent should be followed only so far as it marks the path of justice, but you must cut out the dead wood and trim off the side branches else you will find yourself lost in thickets and branches, said Lord Denning while speaking in the matter of applying precedents. The impugned order is certainly vague." 19. Before coming to the final conclusion on the issue involved in this case, I repeat that in view of the provisions of sub-section 1 of Section 69 of the Motor Vehicles Act, 1988, the impugned resolution cannot be said to be bad in law because in the event the statute prescribed certain procedures to be followed the same must be followed strictly or not at all. Reference may be made to the decision in the case of Nazir Ahmed v. King Emperor, reported in AIR 1936 PC 253 and the relevant portions of the above are set out herein-below:- "The rule which applies is a different and not less well recognised rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden." 20. The above decision has been followed by the Hon'ble Supreme Court in post-independent period in a number of decisions. Reference may be made to one of such decisions which is Ram Phal Kundu v. Kamal Sharma, reported in 2004 (2) SCC 759 and the relevant portion of the above decision is quoted below:- "Paras 13 and 13-A of the Symbols Order lay down the mechanism for ascertaining when a candidate shall be deemed to be set up by a political party and also the procedure for substitution of a candidate. The opening part of para 13 says in unequivocal terms that for the purpose of an election for any parliamentary or assembly constituency a candidate shall be deemed to be set up by a political party if and only if the conditions mentioned in sub-paras (a) to (e) are satisfied. Para 13-A lays down the procedure for substitution of a candidate and also the requirements of a revised notice in Form B. The second proviso to this paragraph takes care of a situation where more than one notice in Form B is received by the Returning Officer and the political party fails to indicate in such notices in Form B that the earlier notice or notices have been rescinded. Thus, paras 13 and 13-A are exhaustive and lay down the complete procedure for determining whether a candidate has been set up by a political party. The rule laid down in Taylor v. Taylor that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden, was adopted for the first time in India by the Judicial Committee of the Privy Council in Nazir Ahmad v. King Emperor. The question for consideration was whether the oral evidence of a Magistrate regarding the confession made by an accused, which had not been recorded in accordance with the statutory provisions viz. Section 164 Cr.P.C. would be admissible. The First Class Magistrate made rough notes of the confessional statements of the accused which he made on the spot and thereafter he prepared a memo from the rough notes which was put in evidence. The Magistrate also gave oral evidence of the confession made to him by the accused. The procedure of recording confession in accordance with Section 164 Cr. P .C. had not been followed. It was held that Section 164 Cr. P.C., having made specific provision for recording of the confession, oral evidence of the Magistrate and the memorandum made by him could not be taken into consideration and had to be rejected. The procedure of recording confession in accordance with Section 164 Cr. P .C. had not been followed. It was held that Section 164 Cr. P.C., having made specific provision for recording of the confession, oral evidence of the Magistrate and the memorandum made by him could not be taken into consideration and had to be rejected. In State of U.P. v. Singhara Singh a Second Class Magistrate not specially empowered, had recorded confessional statement of the accused under Section 164 Cr.P.C. The said confession being inadmissible, the prosecution sought to prove the same by the oral evidence of the Magistrate, who deposed about the statement given by the accused. Relying upon the rule laid down in Taylor v. Taylorand Nazir Ahmad v. King Emperor it was held that Section 164 Cr. P .C. which conferred on a Magistrate the power to record statements or confessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or confessions made to him. This principle has been approved by this Court in a series of decisions and the latest being by a Constitution Bench in C.I.T. v. Anjum M.H. Ghaswala (SCC para 27). Applying the said principle, we are of the opinion that the question as to who shall be deemed to have been set up by a political party has to be determined strictly in accordance with paras 13 and 13-A of the Symbols Order and extrinsic evidence cannot be looked into for this purpose unless it is pleaded that the signature of the authorised person on Form B had been obtained from him under threat or by playing fraud upon him. Where signature is obtained under threat or by playing fraud, it will be a nullity in the eye of the law and the document would be void." 21. With regard to grant of a permit on the selfsame route by the respondent No.2 in the years 2010 and 2011, it is observed that a wrong cannot be perpetuated by a judicial pronouncement since it has been discussed that there was nothing wrong in the impugned resolution, the granting of above permit has no manner of application in this case. 22. In view of the discussions and observations made hereinabove, this writ application is dismissed. There will be, however, no order as to costs. 22. In view of the discussions and observations made hereinabove, this writ application is dismissed. There will be, however, no order as to costs. Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all formalities.