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2014 DIGILAW 437 (CAL)

Ram Ashre Harijan v. State of West Bengal

2014-05-13

SAMBUDDHA CHAKRABARTI

body2014
Judgment Sambuddha Chakrabarti, J. This is the second round of litigation by the petitioner whose application for grant of permanent Contract Carriage Permit had been refused by the respondents authorities. His first effort not having been successful the present writ petition has been filed though with substantially altered relief and in the process he has raised certain issues which call for scrutiny of legality of the basis of the order impugned in the writ petition. It is not necessary for the present purpose to enter into the factual details which are more or less admitted. Suffice it, however, to say that on February 16, 2005 the petitioner made a representation to the Secretary, Regional Transport Authority, North 24 Parganas, i.e., the respondent no. 3 herein, for issue of offer letter in respect of an auto rickshaw permit on the route from Barrackpore Station to Shyamnagar Chowringhee. The petitioner had appeared before the respondent no. 2, i.e., the Regional Transport Authority, on September 12, 2005. Since no decision from the respondents was communicated to the petitioner he moved a writ petition in the year 2006. At the hearing of the said writ petition a decision was communicated to the petitioner and this was referred to by the learned single judge. As per the communication dated, September 30, 2005, the respondent no. 3 had informed the petitioner that no permit could be issued to him in terms of his application and in terms of the restriction imposed by the notification, dated August 2, 2004 (the said notification, for short). The petitioner was requested verbally to submit an application for permit on a route outside the Kolkata Metropolitan Area. The learned single judge had disposed of the matter with the observation that due to the above communication a fresh cause of action had arisen since the said decision was not under challenge in that writ petition and the writ petition was disposed of without passing any further order. The petitioner has now challenged the said communication made by the respondent no. 3 by the present writ petition. The petitioner has prayed for a writ in the nature of Mandamus to cancel or setting aside the said decisions as well as the said notification and has prayed for a direction upon the respondents commanding them to grant a permanent Contract Carriage Permit in his favour for the route mentioned above and for other reliefs. The petitioner has prayed for a writ in the nature of Mandamus to cancel or setting aside the said decisions as well as the said notification and has prayed for a direction upon the respondents commanding them to grant a permanent Contract Carriage Permit in his favour for the route mentioned above and for other reliefs. At the hearing, however, the petitioner challenged the legality and validity of the said notification on a point of law relating to the competence of the concerned authority to promulgate the notification in terms of the provisions contained in the Motor Vehicle Act, 1988 (the Act, for short) as well as the decisions of the Supreme Court. Mr. Samanta, the learned advocate for the petitioner, has very strenuously argued that this notification could never have been issued by the concerned authority keeping in mind the liberalized policy relating to the grant of permit. Mr. Samanta submits that autorickshaws are operated on the basis of a contract carriage permit which the transport authority issues in exercise of the power conferred on them under Section 74 of the Act. He has placed great reliance on Section 80(2) of the Act which inter alia says that a state transport authority referred to in Section 66(1) of the Act shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act. The proviso to the section says that the authorities may summarily refuse the application if the grant of any permit in accordance with the application would have the effect of increasing the number of stage carriages as fixed and specified in a notification in the Official Gazette under Section 74(3)(a) of the Act. Mr. Samanta alleges that the respondents have not issued any notification under Section 74(3)(a) of the Act for limiting the number of contract carriages in the concerned route and as such there is no bar in granting permit for the contract carriages by the respondent no. 2. The next limb of the petitioner’s submission touches on the policy decision to liberalize the grant of permits of any kind under the Act. The present Act had simplified the procedure for grant of permission in the interest of general commuters. The petitioner has heavily relied on the case of Mithilesh Garg etc. etc. –Vs.- Union of India and Ors. etc. etc., reported in AIR 1992 SC 443 . The present Act had simplified the procedure for grant of permission in the interest of general commuters. The petitioner has heavily relied on the case of Mithilesh Garg etc. etc. –Vs.- Union of India and Ors. etc. etc., reported in AIR 1992 SC 443 . In that case a bunch of petitions by the existing operators the liberalization for private sector operators in the road transport field under Section 80 and other provisions of the Act was challenged primarily on the ground that they have been adversely affected in the exercise of their rights under Articles 14 and 19 of the Constitution of India. The Supreme Court in the said judgment had upheld the liberalized policy. The Supreme Court had inter alia held that a comparative reading of the provisions of the Act with the old Act of 1939 makes it quite clear that the procedure for grant of permits under the new Act has been liberalized to such an extent that an intending operator can get a permit irrespective of the number of operators already in the field. The scheme envisaged under Sections 47 and 57 of the old Act has been completely done away with by the new Act. The statements of objects and reasons of the Act show that the purpose of bringing in the new Act was to liberalize the grant of permits. To allay the misgivings that it might pose a threat to the existing operators the Supreme Court held that there was no threat of any kind whatsoever from any authority to the enjoyment of the right of the existing operators under Article 19(1)(g) of the Constitution of India to carry on the occupation of transport operators. The Supreme Court was of the view that more operators meant healthy competition, efficient transport system and better and numerous choice for commuters. One more reason in favour of liberalization was provided by the Supreme Court, i.e., elimination of favouritism in the process of granting permits. Restricted licensing in the hands of a few persons and thereby giving rise to a kind of monopoly adversely affect public interest. The court observed that it could not be said that too many operators on a route were likely to affect adversely the interest of weaker section of the profession. Based on this judgement Mr. Restricted licensing in the hands of a few persons and thereby giving rise to a kind of monopoly adversely affect public interest. The court observed that it could not be said that too many operators on a route were likely to affect adversely the interest of weaker section of the profession. Based on this judgement Mr. Samanta argued that the notification issued must be held to be against the principle of law enunciated therein. In the present case there was no notification under Section 74(3)(a) of the Act and in the absence of any such notification the respondent no. 2 is not authorized or entitled to refuse to grant permit. Thus the petitioner argues that the order impugned as well as the notification are bad and not sustainable in law and are liable to be set aside and quashed. Mr. Samanta has also referred to the case of Bhavnagar University –Vs.- Palitana Sugar Mills (P) Limited and Ors., reported in (2003) 2 SCC 111 for a proposition that when a statutory authority is required to do a thing in a particular manner the same must be done in that manner or not at all. He has also referred to the case of Kanwar Singh Saini – Vs.- High Court of Delhi, reported in (2012) 4 SCC 360. Mr. Samanta has relied on the proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court and if the court passes order or a decree having no jurisdiction over the matter it would amount to a nullity as the matter goes to the roots of the case and such an issue can always be taken even at a belated stage of the proceeding. He has further relied on the case of Dwarikesh Sugar Industries Limited –Vs.- Prem Heavy Engineering Works (P) Limited and Anr., reported in (1997) 6 SCC 450 for a proposition that when a position of law is well settled it would amount to judicial impropriety to say the least for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and the Supreme Court strongly deprecated the tendency of the subordinate courts in not applying the settled principles. Such judicial adventurism cannot be permitted and the Supreme Court strongly deprecated the tendency of the subordinate courts in not applying the settled principles. As principles of law the points are very well-settled. But I do not find any relevance for the same in the context of the present case. The respondents have not used any affidavit to the writ petition. It was, however, submitted by Mr. Bhattacyaryya, the learned advocate for the State-respondents, that apart from that of the petitioner 19 other applications for the said permit were disposed of by a single composite order. Mr. Bhattacharyya submitted that in view of the earlier order passed by a learned single judge of this court the present writ petition is barred by res judicata as in the final order it was decided that the court could not interfere with the decision of the Regional Transport Authority. Mr. Bhattacharyya has argued that the petitioner cannot challenge the vires of the notification which has not been prayed for in the writ petition. The respondents have also relied on Section 80(3) of the Act which provides that an application for grant of permit of any kind may be made at any point of time. This opportunity was provided to the petitioner and he without availing himself of that has filed the present writ petition with a prayer for setting aside the notification. According to Mr. Bhattacharyya the main plank of the petitioner’s argument that as Section 74(3)(a) of the Act has not been resorted to the notification was bad, is plainly not sustainable as that provision has no application to the facts of the present case. With regard to the binding effect of the judgement in the case of Mithilesh Garg (Supra) Mr. Bhattacharyya submitted that if any judgement of a court is delivered without considering a statutory law the judgement cannot override the statutory directive. He made reference to various provisions like Sections 95, 96, 99 and 102 of the Act. These provisions mainly deal with the power of the State Government to make rules and schedules for preparation and publication of proposal regarding road transport service of a state transport undertaking. Similarly Rules 112 of the 1999 Rules confers power upon the State Government to issue order to a Regional transport Authority. Mr. Bhattacharyya further submitted that Mithilesh Garg (Supra) is not applicable to the facts of the present case. Similarly Rules 112 of the 1999 Rules confers power upon the State Government to issue order to a Regional transport Authority. Mr. Bhattacharyya further submitted that Mithilesh Garg (Supra) is not applicable to the facts of the present case. According to him it does not lay down any specific law except that the court on a comparative reading of the old Act and the new one found liberalization policy in the present Act. The State has every right to promulgate the law and the rules from time to time. Mr. Bhattacharyya further referred to Rule 107 of the Rules which provides that the transport authority granting the permit may at any time attach the contract carriage permit and impose a condition to the effect that a contract carriage shall ply on such route or routes within a certain area for which the permit has been granted and during such period as may be specified by the authority. The State Government by exercising its executive power issued the notification imposing restriction. The respondents have referred to the case of State of Sikkim – Vs.- Dorjee Tshering Bhutia and others., reported in (1991) 4 SCC 243 for a proposition that if source of power is traceable exercise of such power cannot be set aside merely because it was done under a different provision. Mr. Bhattacharyya has taken yet another ground in justification of the issue of the notification that the Central Government never asked the State Governments to overlook or to ignore the drastic policy which is an important social and ecological issue. Mr. Bhattacharyya next referred to the case of Karnataka State Road Transport Corporation –Vs.- Ashrafulla Khan and others, reported in (2002) 2 SCC 560 where the Supreme Court referring to earlier cases observed that the law has been very well-settled that once a scheme is for total exclusion for prohibiting of private operators from plying stage carriages or a whole or part of a notified route no permit can be granted on the notified route or operation thereof. Again he referred to the case of Adarsh Travels Bus Service and Anr. Again he referred to the case of Adarsh Travels Bus Service and Anr. –Vs.- State of UP and Ors., reported in (1985) 4 SCC 557 for a proposition that no operator is entitled to ply his vehicle on any portion of notified route even if he does not pick up and set down any passenger on overlapping portion of the notified route. In support of the competence of the authority to issue the notification the respondents have relied on the case of Union of India and Anr. –Vs.- Central Electrical and Mechanical Engineering Service Group A (Direct Recruit) Association, CPWD and Ors., reported in AIR 2008 SC 3 , for a proposition that an executive order must be passed in conformity with the rules. Power of the State Government to issue executive instruction is confined to fill up of the gaps or covering the area which otherwise has not been covered by the existing rules. As mentioned earlier, the principal points of objection of the petitioner against the notification are two-fold. First, unless a notification is issued under Section 74(3)(a) of the Act the respondent no. 2 has no authority to issue the impugned notification. Secondly, the notification was issued in exercise of power against the policy of liberalization undertaken by the Central Government and upheld by the Supreme Court of India. Most of the points taken by the respondents in defence of the notification do not really hold good. For example, there is no question of the present writ petition’s being barred by the principle analogous to res judicata. The learned single judge while disposing of the first writ petition had clearly indicated that the notification impugned in the present writ petition had given rise to a fresh cause of action. For a fresh cause of action if a writ petition is filed the question of res judicata never arises as the lis between the parties in the earlier writ petition was on a totally different factual basis. That the Rules framed under the Act has given power upon the State Government to regulate the grant of permit in appropriate cases is unquestioned. A more pertinent query is whether that was properly exercised in the present case and in view of the judicial decisions whether the point of attack taken by the petitioner is any more available to him. A more pertinent query is whether that was properly exercised in the present case and in view of the judicial decisions whether the point of attack taken by the petitioner is any more available to him. Section 74 of the Act deals with the grant of permit for contract carriages. Section 74(3)(a) which is the one of main planks of the petitioner’s argument inter alia provides that the State Government shall, if so directed by the Central Government having regard to the number of vehicles, road conditions and other relevant matters by notification in the Official Gazette direct a State Transport Authority and the Regional Transport Authority to limit the number of contract carriages in general or of any specified type, as may be fixed and specified in the notifications, operating on city routes in town with a population of not less than five lacs. This provision on a plain reading does not support the contention of the petitioner. The emphasis that unless a notification under this provision is made the impugned notification cannot be issued by the respondent no. 2 is a misconceived one. The provision never says this. All that it says is that the State Government shall, if directed by the Central Government, direct a State Transport Authority or a Regional Transport Authority to limit the number of contact carriages either in general or of some specified type. This is thus an obligation cast upon the State Government to pass a direction upon the transport authorities if it is so directed by the Central Government. The interpretation put on the impugned notification that no new permit shall be issued for autorickshaws operating within Kolkata Metropolitan area is not permissible unless a corresponding notification under Section 74(3)(a) is issued, is perhaps a misreading of the Section. Mithilesh Garg (Supra) does not also lay down any principle that to achieve the desired level of liberalization the appropriate transport authority must have to grant any permit without any power of refusal. Section 80(2) of the Act has been referred to by the Supreme Court which provides that a Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act. Section 80(2) of the Act has been referred to by the Supreme Court which provides that a Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act. Under Sections 71(3) of the Act a limit can be fixed for grant of permits in respect of routes which are within a town having population of more than five lacs. The ratio in the case of Mithilesh Garg (Supra) is to be read in the context that the challenge in that case was thrown by the existing stage carriage operators on different routes. The whole purpose of the writ petition before the Supreme Court was to weed out any possible competition in their business and the observations made in the judgement have to be read in that particular perspective and that is why the Supreme Court had held that there was no threat of any kind whatsoever from any authority to the enjoyment of their right to carry on the occupation of transport operators. The Supreme Court had of course spoken of the liberalized policy but has never said that liberalism meant absence of power in the hands of the appropriate transport authorities to restrict the grant of permit. Liberalization does not mean anarchy in the field of transport operations. That apart the issue sought to be raised by the petitioner is no more available to him after the judgement, dated September 27, 2005, delivered by a Division Bench of this court in the case of Sujata Ganguli & Ors. –Vs.- State of West Bengal & Ors. (MAT 1236 of 2005 with MAT 1235 of 2005). The court initially directed the State Government to form a committee to submit a report on the grounds of which permits were being refused and on the basis of such a report to take a policy decision as it might think fit and proper. A committee was constituted and it submitted its report. Upon consideration of the said report the government had taken a policy decision which was notified by a notification dated August 2, 2004, i.e., the notification impugned in the present writ petition. Challenging the said notification several writ petitions were filed. This policy decision was challenged in a writ petition with regard to its validity. Upon consideration of the said report the government had taken a policy decision which was notified by a notification dated August 2, 2004, i.e., the notification impugned in the present writ petition. Challenging the said notification several writ petitions were filed. This policy decision was challenged in a writ petition with regard to its validity. The Division Bench had clearly held that this policy had been declared pursuant to an order of the court and it was no more open to challenge apart from the fact that this was a policy decision of the state which cannot be reviewed in judicial exercise unless it was patently ultra vires the Constitution. The Government has power to take a policy to regulate the operation of the stage carriages in the state and might put certain restrictions which cannot be construed to take away the right guaranteed under Article 19(1)(g) of the Constitution of India. The entire statutory process for grant of permit in itself was regulatory. Therefore, it could not be assailed even if it was issued in exercise of administrative function. It has been so issued pursuant to the order passed by the court in view of the burning situation that had engaged not only the court but also the society as a whole on account of pollution, apart from other inconveniences faced in the respective stands. In view of this very specific observation made by the Division Bench of this court the challenge to the said notification is not available to the petitioner. The validity of the notification having been upheld by the Division Bench of this court the petitioner cannot any further assail the same either on the ground of lack of competence or being against the policy of liberalization. Thus I find no merit in the petition and the same is dismissed. There shall, however, be no order as to costs.