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2013 DIGILAW 732 (CAL)

Uttam Kumar Bhakat v. State of West Bengal

2013-09-26

DIPANKAR DATTA

body2013
JUDGMENT 1. The petitioners in these two writ petitions having voiced a common grievance, the same have been heard together and shall stand disposed of by this common order. 2. Subject matter of challenge in these two writ petitions is a notice dated October 8, 2012 issued by the Secretary, Regional Transport Authority, Malda (hereafter the RTA) inviting applications from prospective operators for grant of stage carriage permits in respect of different intra -district routes. The only ground on which the notice has been challenged is that although the Secretary has observed therein that it is the RTA that has decided to issue stage carriage permits on the routes detailed in Annexure A thereto, no such decision has been taken by the RTA and that the Secretary, RTA without any authorization from the RTA has proceeded to issue such notice. 3. W.P. 24377(W) of 2012 is at the instance of a permit holder on the route Malda to Nalagola via Bulbulchandi. It was entertained by a learned Judge of this Court on 08.11.2012. While calling for affidavits, His Lordship directed “status quo in respect of the route in question be maintained till 6 weeks after reopening of the Court after Puja vacation with liberty to the petitioner to pray for extension of period of status quo with notice to the respondents”. 4. Since affidavit – in - opposition had not been filed by the respondents, another learned Judge of this Court by an order dated 19.12.2012 extended the interim order until further orders and also extended the time to file affidavit- in –opposition. 5. CAN 7426 of 2013, being an application for addition of party, has been filed in connection with W.P. 24377(W) of 2012. It is claimed in the application by the applicant that his application dated 19.10.2012 for permit to provide stage carriage service on the routes Malda to Lalgola via Bulbulchandi, Malda to Chanchol via Gazole and Malda to Kaliagunj has not been considered by the RTA because of the order of status quo that was passed by this Court on 08.11.2012, since extended by the order dated 19.12.2012. A prayer has, accordingly, been made to add the applicant as a party since the interim order has been operating to his prejudice. 6. W.P. 18169(W) of 2013 is at the instance of a permit holder on the route Malda to Chanchol via Gazole. A prayer has, accordingly, been made to add the applicant as a party since the interim order has been operating to his prejudice. 6. W.P. 18169(W) of 2013 is at the instance of a permit holder on the route Malda to Chanchol via Gazole. The notice dated 08.10.2012 issued by the Secretary, RTA is challenged on the same ground, which has been urged in W.P. 24377(W) of 2012. On the date this writ petition came up for admission hearing before me, I directed that it would be heard along with W.P. 24377(W) of 2012. 7. Despite the orders dated 08.11.2012 and 19.12.2012 referred to above, the respondents chose not to file affidavit-in-opposition. Mr. Deb Roy, learned advocate appeared for the respondents and prayed for time to produce the decision of the RTA on the basis whereof its Secretary had issued the impugned notice. I refused the prayer of Mr. Deb Roy and proceeded to hear the parties finally. Having heard them, I reserved order on the application and the writ petitions. 8. Mr. Chatterjee, learned advocate for the petitioners contended that the applicant has no right to seek impleadment. According to him, the applicant had applied for permit on three separate routes but had filed only one application. The application itself being defective, the applicant cannot be heard to say that his application is not being considered and hence he must be added as a respondent in the writ petition. 9. The contention of Mr. Chatterjee has no substance. In view of provisions contained in Section 70 of the Motor Vehicles Act, 1988 (hereafter the Act), an applicant for permit is obliged to indicate the route or routes on which he proposes to operate his vehicle. The logical corollary is that he may indicate more than one route in respect whereof he seeks to obtain permits. In fact Form – I, which is the prescribed form to apply for a permit in respect of a stage carriage, also requires the applicant to mention, inter alia, the route or routes for which the permit is desired. However, there can be one grant of permit only in respect of one application. There is no reason to hold the application of the applicant to be defective merely because three routes are mentioned therein. It is in the prescribed form and seems to be in order. 10. However, there can be one grant of permit only in respect of one application. There is no reason to hold the application of the applicant to be defective merely because three routes are mentioned therein. It is in the prescribed form and seems to be in order. 10. Since the interim order passed in W.P. 24377(W) of 2012 has resulted in the RTA not being in a position to consider the application for permit of the applicant, I hold that his presence is necessary for effective adjudication of the issue raised in such writ petition. The application, being C.A.N. 7426 of 2013, is thus allowed. Office is directed to implead the applicant as respondent no. 4 in the array of parties. 11. Turning to the merits of the writ petitions, Mr. Sen, learned advocate for the respondent no. 4, contended that little turns on non-filing of affidavit-in-opposition to W.P. 6 24377(W) of 2012 by the respondents. It is his preliminary objection that W.P. 24377(W) of 2012 ought to fail on the ground of lack of locus standi of the petitioner. Elaborating his submission, it was contended by him that the petitioner is an existing permit holder and his endeavour is to prevent further vehicles being operated on the intra - district routes of Malda. Even if it is conceded that the Secretary, RTA without being authorized by the RTA has invited applications in respect of various intra-district routes, the petitioner cannot have any reason to complain. His right to carry on business cannot be said to be impaired by the impugned notice. Relying on the decisions reported in 2008 (1) CHN 1096 (Sri Sekhar Chatterjee and anr. v. Sri Abdur Rahim Mondal and ors.) and AIR 2007 Calcutta 252 (Sanjit Chakraborty v. State of West Bengal and ors.), it is contended that the writ petition ought to be dismissed only on the ground that the petitioner has no locus standi to maintain it. 12. Per contra, Mr. Chatterjee contended that the petitioners do have the locus standi to maintain the writ petitions since the Secretary, RTA acted illegally and without the authority of law in inviting applications. 12. Per contra, Mr. Chatterjee contended that the petitioners do have the locus standi to maintain the writ petitions since the Secretary, RTA acted illegally and without the authority of law in inviting applications. According to him, if the applications had been invited by the Secretary pursuant to a decision of the RTA, the petitioners as existing operators may not have reason to complain in view of the liberalized policy relating to grant of permits under the Act. But the Act does not confer unfettered power on the Secretary of a regional transport authority to act according to his whim and fancy. 13. Referring to the decision in Sanjit Chakraborty (supra) cited by Mr. Sen, Mr. Chatterjee contended that the decision has been rendered by an Hon’ble Division Bench of this Court upon complete misreading of the decision of the Apex Court reported in AIR 1992 SC 443 (Mithilesh Garg and ors v. Union of India and ors.). According to him, although the Apex Court did not observe that an illegal grant of permit cannot be questioned by an existing operator, the Court proceeded to observe “it has been clearly held that an existing permit holder cannot challenge the grant of permit to other operators, on the same route, even if it had been granted illegally”. 14. My attention has further been drawn to an unreported decision of more or less recent origin dated June 20, 2013 delivered by another Hon’ble Division Bench of this Court in APOT No. 51 of 2013 wherein it has been held as follows: “We have considered the rival submissions advanced by the learned Advocates appearing before us. The judgment in the case of Mithilesh Garg has no manner of application. That judgment is relevant only for the purpose of considering the prayer of an application for a route permit. While considering such a prayer, a rival has no say and the authorities have been directed to consider the prayer for a route permit on the basis of its own merit without being influenced by anything which a rival may have got to say. Financial loss to the rival is no factor at all to refuse to issue a permit. The law laid down in Mithilesh Garg’s case has to be understood in that context.” 15. According to Mr. Financial loss to the rival is no factor at all to refuse to issue a permit. The law laid down in Mithilesh Garg’s case has to be understood in that context.” 15. According to Mr. Chatterjee, the above passage reflects the correct reading of the ratio of the decision in Mithilesh Garg (supra) and that the view expressed in the decision in Sekhar Chatterjee (supra) as well as Sanjit Chakraborty (supra) are not correct. 16. Mr. Chatterjee has also relied on an unreported decision dated 12.09.2005 delivered by another Hon’ble Division Bench of this Court while disposing of F.M.A. 945 of 2004. It was held there that the Court would be failing in its duty if it declines to intervene and allows illegality to be perpetrated by and between an operator and the members of a regional transport authority in a concerted effort to steal away the revenue of the administration. 17. The question of locus standi of the petitioners to present these writ petitions need not be examined in depth from the angle argued by Mr. Sen, since I am of the view that the impugned notice (accepting that it was issued by the Secretary, RTA in the absence of any decision of the RTA itself or even without the authority of law) does not impair the legal rights of the petitioners and since they cannot be regarded as persons aggrieved by the impugned notice, the writ petitions are not maintainable. 18. There is no dispute that the routes for which applications were invited by the Secretary, RTA by the impugned notice are not covered by any notification issued under Section 71(3)(a) of the Act. In view of the liberalized policy relating to grant of permits envisaged by the Act and the dictum of the Supreme Court in Mithilesh Garg (supra) that an applicant for permit can obtain it for the mere asking irrespective of the number of operators on the route, the RTA itself is not authorized in law to limit the number of permits that could be granted on the routes mentioned in Annexure A to the impugned notice or any other route(s). A fortiorari, the Secretary of the RTA, even with the backing of a decision of the RTA in this behalf, could not have limited the number of permits. The impugned notice no doubt is without the authority of law and deserves to be quashed. A fortiorari, the Secretary of the RTA, even with the backing of a decision of the RTA in this behalf, could not have limited the number of permits. The impugned notice no doubt is without the authority of law and deserves to be quashed. But could such quashing be ordered on these writ petitions? I do not think so. It could be quashed only on entertaining a writ petition by a person who can be said to be aggrieved by such a limit being imposed, i.e. either an intending operator of stage carriage service on any of the routes detailed in Annexure A to the impugned notice or the passengers concerned likely to avail the services provided on such routes. More the number of carriages on a particular route, the less is the time for waiting and, therefore, a writ petition could be presented by that class also. 19. Viewed from a different perspective, the petitioners do not seem to have approached the Court bona fide and with a legal grievance. Assume a situation that the impugned notice had not been issued by the Secretary of the RTA and the RTA were contemplating grant of fresh permits in favour of intending operators on the routes detailed in Annexure A to the impugned notice pursuant to suo motu applications received from such operators, would the petitioners have a right to challenge grants, if any, made by the RTA? The answer has to be in the negative considering the provisions of the Act and the decision in Mithilesh Garg (supra). Therefore, merely because the Secretary of the RTA issued the impugned notice without any decision of the RTA would not vest the petitioners with a right to challenge it. Decision or no decision (of the RTA), notice or no notice, the petitioners do not have any subsisting legal right to urge the Court to come to their aid. The intention of the petitioners is clear, i.e. to anyhow persuade the Court to grant an injunction and thereby stall grant of permits by the RTA on routes all over Malda. The petitioner in W.P. 24377(W) of 2012 appears to have been successful in his pursuit. Had W.P. 18169(W) of 2013 not come up before me, one wonders when W.P. 24377(W) of 2012 would have come up for hearing. The petitioner in W.P. 24377(W) of 2012 appears to have been successful in his pursuit. Had W.P. 18169(W) of 2013 not come up before me, one wonders when W.P. 24377(W) of 2012 would have come up for hearing. The interim order would continue without the RTA being in a position to consider applications for grant of permits. While it is the duty of the Court to protect the individual interest of a party, the Court cannot be taken for a ride by operators of stage carriage services whose interest are in no way affected. The writ petitions, in my view, are not maintainable for no breach of legal rights of the petitioners has been established. 20. It is settled law that discretionary remedy under Article 226 of the Constitution is exercised only when the Court is satisfied that it is equitable to do so. That is not the case here. 21. In the result, the writ petition stands dismissed and the interim order stands vacated. There shall be no order for costs. 22. Copy of this order, duly countersigned by the Assistant Registrar (Court), shall be retained with the records of W.P. 18169 (W) of 2013. Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.