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2012 DIGILAW 540 (ORI)

Suryakanta Sanganeria v. Union of India, represented through Secretary of Communication Department

2012-12-13

B.N.MAHAPATRA, V.GOPALA GOWDA

body2012
JUDGMENT B.N.Mahapatra,J. This Writ Petition has been filed with a prayer to quash the decision of opposite party No.2-Chief Post Master General, Odisha Circle, Sachivalaya Marg, Bhubaneswar and opposite party No.3-Senior Superintendent of Post Offices, Cuttack City Division, Cantonment Road, Cuttack regarding closing down of Binod Bihari Sub-Post Office on 28.06.2012 on relocation basis as stated in letter dated 03.07.2012 (Annexure-2). Petitioners’ further prayer is for issue of a writ of mandamus directing opposite parties 2 and 3 to maintain and continue the Binod Bihari Sub-Post Office as it was functioning prior to 28.06.2012. 2. This Writ Petition has been filed in the nature of Public Interest Litigation. Petitioner No.1 is the President of Balu Bazar Puja Committee, working President of Cuttack Mahanagar Shanti Committee and a practising Advocate, residing at Nayasarak, Cuttack. Petitioner No.2 is a resident of Alamchand Bazar and ex-Corporator of Cuttack Municipal Corporation and presently is the working Secretary of Balu Bazar Puja Committee. Petitioner No.3 is a resident of Banka Bazar and a former Member of Parliament (Rajaya Sabha) and a practising Advocate at Cuttack and a noted Social Worker and Vice-President of Balu Bazar Puja Committee. 3. Petitioners’ case in a nutshell is that Cuttack is an old City of 1025 years old and known as Silver City for its silver and gold filigree business and is a heritage City. Balu Bazar is an old basti, consisting of seven sub-bastis, i.e., Banka Bazar, Nayasarak, Alamchand Bazar, Biswanath Lane, Nimchouri, Sahebzada Bazar and Bakhrabad. This basti was/is known as commercial hub of Cuttack, for the trade of textile, silver and gold filigree works including the famous daily market of fish and vegetable of small traders. Printer and publishers and sellers of books and stationeries and medicines were/are carrying their business in Nayasarak, Banka Bazar area. In these sub-bastis of Balu Bazar, more than 25,000 people are residing with their families. Binod Bihari Sub-Post Office was/is as old as about 70 years, when there were few Post Offices in Cuttack city, i.e., Chandini Chowk, Choudhury Bazar, Buxi Bazar and College Square and later on Sub-Post Offices were established in number of places including Kazi Bazar and Upper Telenga Bazar etc. In Binod Bihari Sub-Post Office, there are more than 2000 postal book holders, saving bank account holders and other passbook holders with current account and holders of National Saving Certificates. In Binod Bihari Sub-Post Office, there are more than 2000 postal book holders, saving bank account holders and other passbook holders with current account and holders of National Saving Certificates. Residents of Balu Bazar basti are depending upon the said Post Office for purchasing postal stamps, revenue stamps and they used to send registered letters and postal parcels in huge numbers particularly book sellers and medicine traders. Without any notice to the local residents of the area, opposite parties 2 and 3, mischievously, surreptitiously and without any valid cause and reasons took an arbitrary decision to shift Binod Bihari Sub-Post Office to Sector-11 of Markat Nagar (CDA) and when these facts came to the notice of local residents of the area, under the leadership of petitioner Nos. 2 and 3, about more than two hundred persons raised protest by sitting on Dharana and picketing, and submitted representations, as per requirement of Rule-8 of PIL of Orissa High Court Rules before opposite party No.3 by registered post with A.D. and also by meeting opposite party No.3 in person in his office. The said protest had come in print and electronic medias. The representation did not yield any result. Hence, the present writ petition. 4. Mr.A.N.Das, learned counsel appearing for the petitioners submitted that relocation of Binod Bihari Sub-Post Office at Sector-11, Markat Nagar, C.D.A. instead of opening a new Sub-Post Office at Sector-11, Markatnagar, CDA is arbitrary action of opposite parties 2 and 3 without valid reasons. Even though the Sub-Post Offices of Kazi Bazar and Upper Telenga Bazar are not so commercially viable to the Postal Department, but in the larger interest of local residents, these Post Offices were/are still functioning and have not been relocated. After receipt of representations under Annexure1 series by opposite party No.3, opposite party No.3 sent a reply by registered post with A.D. to petitioner No.2 stating therein that Binod Bihari Sub-Post Office has already been closed down on relocation basis on 28.06.2012 and as such the representation under Annexure-1 could not be accepted. In case of closure or shifting of the Binod Bihari Sub-Post Office a lot of people shall suffer. Concluding his argument, Mr. Das submitted to allow the writ petition. 5. Mr.S.D.Das, learned Asst. Solicitor General appearing for opposite party No.3 submitted that the present writ petition is not maintainable. In case of closure or shifting of the Binod Bihari Sub-Post Office a lot of people shall suffer. Concluding his argument, Mr. Das submitted to allow the writ petition. 5. Mr.S.D.Das, learned Asst. Solicitor General appearing for opposite party No.3 submitted that the present writ petition is not maintainable. On review of the establishment of Binod Bihari Sub-Post Office, it was found that the total work load of the office came to 58 minutes and the income of the said office came to only 24.63% of the total cost. A copy of the statistical figures collected is annexed as Annexure-A/1. As per the norms prescribed by the Department of Posts, the working hours of an office requires minimum five hours and regarding income it should be self-supportive and the minimum distance between two Post Offices should be two kilometers in urban areas with population less than twenty lakhs. A copy of the said Rule has been annexed as Annexure-A/2. Binod Bihari Sub-Post Office is surrounded by a number of Departmental Post Offices within a very short distance. Binod Bihari Post Office is situated at a distance of one kilometre from Kazi Bazar Sub-Post Office, 1.3 kilometres from Choudhury Bazar Post Office, one kilometre from Swaraj Ashram Post Office and one kilometre from Chandini Chowk Head Post Office. The said Post Office was running with very less workload incurring heavy loss to the Department. Hence, the working hours, income of the office and distance from other nearest Post Offices are not fulfilling the required norms. Thus, there is no justification for retention of the aforesaid Post Office. After review on the establishment of the said Binod Bihari Sub-Post Office by the competent authority, i.e., Chief PMG, Odisha Circle and as ordered vide memo No.ESP/20-1/2011 dated 18.06.2012, Binod Bihari Sub-Post Office was closed down on 28.06.2012 afternoon. Keeping in view the newly developed area in CDA, Cuttack, Sector-11, delivery Post Office with PIN Code-753015 has already been opened on 29.06.2012 forenoon on relocation basis under Matching Savings Scheme. For convenience of general public (customers of Binod Bihari Sub-Post Office), order has already been issued to make transactions at Chandini Chowk Head Post Office, which is very nearer to the Binod Bihari locality. For convenience of general public (customers of Binod Bihari Sub-Post Office), order has already been issued to make transactions at Chandini Chowk Head Post Office, which is very nearer to the Binod Bihari locality. In order to enable the general public (customers of Binod Bihari Sub-Post Office) to make further transactions/withdrawal in/from their accounts, action was taken on 28.06.2012 to shift the records and other articles of Binod Bihari Sub-Post Office. But Balu Bazar Puja Committee put another lock on Binod Bihari Sub-Post Office over the office lock and due to protest of limited persons the records and other articles including Generator, UPS with batteries etc. could not be shifted. F.I.R. was lodged at Labag Police Station on 28.06.2012 for smooth and secured shifting of office records and other articles from Binod Bihari Sub-Post Office, which was registered under Lalbag PS Case No.83(14) dated 29.06.2012 under Sections 342/353/34, IPC. Keeping in view the importance and urgency of customers and members of public, the Deputy Commissioner of Police, Police Commissionerate, Cuttack as well as the Collector and District Magistrate, Cuttack were addressed vide letter dated 29.06.2012 for immediate rescue of the Central Government records/properties from Binod Bihari Sub-Post Office in presence of civil authority having magisterial power and police personnel. On 03.07.2012, a representation requesting not to shift Binod Bihari Sub-Post Office was received from the members of Balu Bazar Puja Committee. The representation was duly considered as per the policy decision of the Department. Since Binod Bihari Sub-Post Office has already been closed down on relocation basis on 28.06.2012 afternoon, the request could not be acceded to, which was intimated to the Puja Committee. On 16.07.2012, steps were taken in the presence of Police force to rescue the Government records/properties, but due to violent protest of limited persons the records could not be shifted. Mr.Das further submitted that despite several attempts and even with the help of Police, the records and other Government properties have not yet been rescued. Most of the customers of the said Post Office are coming with several complaints for non-transactions of their accounts as the relevant records are still inside Binod Bihari Sub-Post Office. Most of the depositors of the said Post Office, who are daily wage labourers, rickshaw pullers and poorer section of the society, are deprived of making withdrawals/transactions etc. In coming days, several litigations in shape of Consumer Court Cases may arise. Most of the depositors of the said Post Office, who are daily wage labourers, rickshaw pullers and poorer section of the society, are deprived of making withdrawals/transactions etc. In coming days, several litigations in shape of Consumer Court Cases may arise. 6. In their rejoinder affidavit, petitioners replied that this writ petition is legally and factually maintainable. Review for establishment of Binod Bihari Sub-Post Office is totally baseless and incorrect and has been created as a reply to the present Writ Petition by giving an absurd statistics figure as calculated under Annexure-A/1 to confirm their decision of closure of Post Office. Further, the norms prescribed by the Department of Posts and Rules under Annexure-A/2 have been put into operation by D.G. Posts letter No.1-36/77 PRP dated 21.10.1986, according to which, the minimum distance between two post offices has been raised 1.5 KM in the cities with population of 20 lakhs and above, and 2 KM in urban areas. These rules were not in existence earlier because the Binod Bihari Sub-Post Office is as old as 70 years. Even though there are many other Post Offices, which are not giving any income to the Postal Department and are situated within the less distance as prescribed under the Rules they are functioning. Binod Bihari Sub-Post office is about one kilometer distance from Chandini Chowk Post Office. Other Post Offices are less in distance from Chandini Chowk and none of those Post Offices has been relocated yet. Apart from putting up another lock in Binod Bihari Sub-Post Office while opposite party No.3 was making attempt to shift the Post Office, a protest was made by the local people in a democratic manner with placards and banners in their hands. The F.I.R. lodged under Annexure A/4 is mischievous and mala fide and just to make out a case against Balu Bazar Puja Committee. Petitioners ventilated their democratic right in the right manner by holding protest, placards, banners and raising slogans. The policy decision of Postal Department regarding relocation of Binod Bihari Post Office on 28.06.2012 at Sector-11 of CDA has been taken with a view to cause harassment to the people of the areas such as Banka Bazar, Binod Bihari Lane, Alam Chand Bazar, Nayasarak, Biswanath Lane, Sahebzada Bazar and Bakhrabad in availing the postal service. The policy decision of Postal Department regarding relocation of Binod Bihari Post Office on 28.06.2012 at Sector-11 of CDA has been taken with a view to cause harassment to the people of the areas such as Banka Bazar, Binod Bihari Lane, Alam Chand Bazar, Nayasarak, Biswanath Lane, Sahebzada Bazar and Bakhrabad in availing the postal service. One member of the Balu Bazar Puja Committee Shri Rama Chandra Sarkar submitted an application before opposite party No.3 under the Right to Information Act to provide certain information. Opposite Party No.3, after receipt of the application on 23.07.2012 has provided such information incorrectly, incompletely and haphazardly and has suppressed the correct material information in his reply letter 17/21.08.2012. 7. On the rival contentions of the parties the only question that falls for consideration by this Court is as to whether opposite parties 2 and 3 are justified in closing down the Binod Bihari Sub-Post office on relocation basis on 28.06.2012. 8. Facts, which are not in dispute, are that the Binod Bihari Sub-Post Office was started in the year 1939 and functioned there for last seventy three years till it was closed down on 28.06.2012. When the said Post Office was opened, few Post Offices were there in the City of Cuttack, i.e., Chandini Chowk, Buxi Bazar, College Square. Subsequently, to meet the need of the people and to make available the service of Post Office to the people in the nearby areas, opposite parties have opened Sub-Post Offices at Swaraj Ashram, Prajatantra Office, Dagarapada, Kafla Fandi, Collectorate Office, Kathajodi and in High Court premises. All these Post Offices which were subsequently established are located about less than half a kilometre or quarter kilometre from Chandini Chowk. These Post Offices are functioning and no order has been passed by opposite party No.3 to close down the same on relocation basis. 9. Apart from the above, the norms prescribed by the Department of Post under Annexure-A/2 have been put into operation by D.G. Posts letter No.1-36/77 PRP dated 21.10.1986. Annexure-A/2 provides the standard for opening of Departmental Sub-Post Office under Postal Sector. The standard norms provided under Annexure-A/2 are for opening of Departmental Sub-Office and not for closing down the existing Post Office. In the instant case, the Post Office in question was opened in the year 1939, i.e., prior to Annexure-A/2 came into operation in the year 1986. 10. The standard norms provided under Annexure-A/2 are for opening of Departmental Sub-Office and not for closing down the existing Post Office. In the instant case, the Post Office in question was opened in the year 1939, i.e., prior to Annexure-A/2 came into operation in the year 1986. 10. Annexure-2 attached to the writ petition and Annexure-A/2 attached to the counter affidavit do not contain the reasons for closing down of the Binod Bihari Sub-Post Office. Annexure-2 simply says that Binod Bihari Sub-Post Office has been closed down on relocation basis on 28.06.2012 afternoon. Annexure-A/3 dated 18.06.2012 reveals that the Chief Post Master General, Odisha Circle, Bhubaneswar is pleased to order for closure of Binod Bihari NDT SO under Chandini Chowk Head Office of Cuttack City Division and to relocate the said Post Office at Sector-11, CDA, Bidanasi, Cuttack as a DSO in the name of Sector-11, CDA, Cuttack with certain establishment purely on redeployment of surplus posts on Matching Saving Scheme. Annexures-A/4, A/5, A/6 and A/7 reveal that as per the policy decision of the Department of Posts, Binod Bihari Sub-Post Office becomes unremunerative due to heavy loss, therefore, the impugned order was passed to close down the said post Office on 28.06.2012 afternoon. Accordingly, the said Post Office was closed down on the very day. But nothing was brought to our notice to show as to who are those higher authorities, on what basis and what were the materials placed before those authorities to take such a decision to close down the Post Office in question. Therefore, it is contended by petitioners that subsequently documents were created to justify the action for passing the order of closure dated 28.06.2012. 11. An order passed by the authority cannot be supported by filing affidavit at later stage. The order itself should be self explanatory. Hon’ble Supreme Court in Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors., AIR 1978 SC 851 , held as follows:- “The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji ( AIR 1952 SC 16 ) (at p. 18): Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older.” 12. Otherwise also, reasons given in the counter affidavit are not valid reasons for closing down the Post Office which is working for 70 years in a particular locality upon which the people of that locality including the daily wage labourers, rickshaw pullers and poorer section of the society were deprived for postal service. The reasons given in the counter affidavit are that total workload of the office comes to 58 minutes and the income of the said Post Office comes to only 24.63 % of the total cost. As per the norms provided by the Department of Posts working hours of a Post Office is five hours and regarding income it should be self-supportive and minimum distance between two Post Offices should be two kilometres in urban areas with population of less than twenty lakhs and that the Post Office in question is surrounded with number of departmental Post Offices within very short distance. 13. So far the working hours and income of the Post Office in question are concerned, in a welfare State the paramount consideration is the welfare of the citizens; the State has to undertake various non-profiting activities for welfare of its citizens. Otherwise, various non-profiteering institutions like the hospitals/health centres, primary schools, judiciary, railway services to under-developed areas etc. cannot function in the State. Postal service is essential in human life. 14. Otherwise, various non-profiteering institutions like the hospitals/health centres, primary schools, judiciary, railway services to under-developed areas etc. cannot function in the State. Postal service is essential in human life. 14. If Binod Bihari Sub-Post Office was running with very less workload incurring loss to the Department and the distance criteria is not satisfied, it is because of the action of opposite parties 2 and 3 in establishing other Post Offices subsequently around the Balu Bazar area. It was stated at the Bar that many Post Offices were established after the establishment of Binod Bihari Sub-Post Office. Moreover, if for any reason, a policy decision is taken at the Government Level to close down a Post Office in the Cuttack City on distance criteria, the said action should start with the Post Office established last and in descending order if permissible in law and should not start with an old Post Office of 70 years. It is not denied that there are number of passbook holders, savings bank account holders, and holders of National Saving Certificates in Binod Bihari Sub-Post Office. It is also not denied that Binod Bihari area is the business hub of various commodities such as textile, silver and gold filigree works, printer and publishers and sellers of books and stationeries and medicines including the famous daily market of fish and vegetable of small traders. At the time of establishment of Binod Bihari Sub-Post Office appropriate authorities after considering all the aspects and ground realities had opened such Post Office. 15. In view of the above, we are of the opinion that in the larger interest of the public of the locality, namely, Banka Bazar, Nayasarak, Binod Bihari Lane, Alam Chand Bazar, Bakharabad, Sahebazada Bazar and Manikghose Bazar etc., who have been depending on Binod Bihari Sub-Post Office since its opening in the year 1939, Opposite Party Nos.2 and 3 are directed not to close down Binod Bihari Sub-Post Office and continue functioning of the said Post Office as usual. 16. In the result, the writ petition is allowed and the decision taken by opposite party Nos. 2 and 3 for closing down the Binod Bihari Sub-Post Office on 28.06.2012 on relocation basis is quashed.