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2017 DIGILAW 956 (CAL)

Salina Sultana v. State of West Bengal

2017-12-06

AMITABHA CHATTERJEE, DIPANKAR DATTA

body2017
JUDGMENT : 1. This intra-court appeal is directed against the judgment and order dated 31st August, 2017 passed by a learned Judge of this court, dismissing a writ petition [W.P. No. 12242(W) of 2017] presented by the appellants. While considering the application for stay filed in the appeal, we have heard the learned advocates for the respective parties on the merits of the appeal, treating it as on day’s list and dispensing with all the formalities. We propose to dispose of the appeal here and now. 2. The facts giving rise to the presentation of the writ petition are these. For providing stage carriage service on the route Kalna Ghat to Helencha (hereafter the said route), a permanent permit was issued by the State Transport Authority, West Bengal (hereafter the S.T.A.) in favour of the appellants on 4th July, 2006. The permit was valid till 3rd July, 2011. On the prayer of the appellants, the permit was renewed for a further period till 3rd July, 2016. It was one of the conditions of the permit that the appellants have to ply the vehicle covered thereby on the said route in terms of the timetable approved by the S.T.A. A complaint was received by the S.T.A. from an existing operator to the effect that the appellants were not plying the vehicle on the said route in conformity with the approved timetable but were so plying by tampering the timetable issued by the S.T.A. On receipt of such complaint, the appellants were called upon by memo dated 17th April, 2015 to submit their reply to such complaint. In their letter dated 9th February, 2016, the appellants admitted the veracity of the complaint. Considering such admission, the Secretary, S.T.A. by his memo dated 6th June, 2016 issued a notice to the appellants asking them to show cause within 15 days why necessary legal action shall not be taken in terms of Section 86 of the Motor Vehicles Act, 1988 (hereafter the Act) for alleged violation of the permit conditions. It was also indicated that if the appellants fail to reply within 15 days to the show cause notice, the S.T.A. would proceed in accordance with law without any further correspondence. The appellants did not reply within 15 days. The S.T.A. could have cancelled the permit without reminding them that the time limit to respond had expired. It was also indicated that if the appellants fail to reply within 15 days to the show cause notice, the S.T.A. would proceed in accordance with law without any further correspondence. The appellants did not reply within 15 days. The S.T.A. could have cancelled the permit without reminding them that the time limit to respond had expired. Surprisingly, the S.T.A. did not proceed to cancel the permit. By passage of time, the permit expired on 3rd July, 2016. On 26th July, 2016, the appellants submitted a reply to the show cause notice. It was their version that they were not aware of the approved timetable issued by the S.T.A. having been tampered with and that the persons who were authorised to operate the vehicle on the basis of the approved timetable were guilty of tampering the timetable, of which the appellants really had no knowledge. However, as soon as memo dated 17th April, 2015 had been received, the appellants had stopped operation of the vehicle and had made efforts to find out who was actually responsible for such tampering and plying of the vehicle not in conformity with the approved timetable. A month thereafter, 22nd August, 2016 to be precise, the appellants by an application prayed for renewal of the stage carriage permit which had expired on 3rd July, 2016. During the subsistence of the application for renewal of permit, the Secretary, S.T.A., vide memo dated 30th November, 2016, called upon the appellants to appear in person before the S.T.A. on 16th December, 2016 for a hearing in connection with the proceedings that had been initiated for cancellation of permit. The appellants were represented and heard by the members of the Board of the S.T.A. The decision taken by the Board, upon hearing the version of the appellants, reads as follows: “The alleged permit holders were asked to clarify the above matter and they have admitted the allegation made by Anil Adhikary regarding tampering of their existing time-table. As per order given by the Secretary, STA (the matter was deal with in file no. 7E-319/2007, nsp-12) notice to show cause was issued to the permit holders vide no. 728(3)-STA/SC/7E-74/2006 dated 06.06.2016. In reply to the notice to show cause the permit holders stated that : 1. They remained unaware about the fact of tampered time-table until the same was intimated by STA to them vide letter no. 7E-319/2007, nsp-12) notice to show cause was issued to the permit holders vide no. 728(3)-STA/SC/7E-74/2006 dated 06.06.2016. In reply to the notice to show cause the permit holders stated that : 1. They remained unaware about the fact of tampered time-table until the same was intimated by STA to them vide letter no. 527/(2)/STA/SC dated 17.04.2015, 2. They stopped operation of the vehicle on receipt of the said letter of the authority, 3. They blamed to an agent to whom they entrusted the work relating to the time-table in question, 4. Surrendering their forged time-table they have begged of apology and prayed for withdrawal of instruction given by this authority to RTOs towards seizure of their vehicle, 5. They have requested for not to proceed with section 86 of M.V. Act, 1988 and considered their reply sympathetically. The matter is placed before STA for decision. Decision taken in the meeting. Amirul Islam was present personally. Anil Adhikary was present personally being accompanied by Ld. Advocate, Sk. Samim Akhtar. Amirul Islam stated that the members of staff of the vehicle forged the time table and wee operating the vehicle with the same without their knowledge. Members of STS considered this statement of one of the permit holders that members of staff were operating he vehicle with a forged time table without knowledge of permit holders clearly proves gross violation of the provisions laid down under Section 86(1)(b) of the M.V. Act, 1988. Hence, members of STA decided to cancel the permit in accordance with the provisions laid down under Section 86(1) of the M.V. Act, 1988.” The aforesaid decision of the Board of the S.T.A. was the subject matter of challenge in the writ petition. 3. On behalf of the appellants, it was contended before the learned Judge that the permit having expired on 3rd July, 2016, the S.T.A. had no authority to cancel the expired permit in its meeting held on 16th December, 2016. In support of the said proposition, reliance was placed on the decision of the Madras High Court, reported in A.I.R. 1983 Madras 365 (M/s. Ajantha Travels vs. State Transport Authority, Pondicherry and Anr.). In support of the said proposition, reliance was placed on the decision of the Madras High Court, reported in A.I.R. 1983 Madras 365 (M/s. Ajantha Travels vs. State Transport Authority, Pondicherry and Anr.). It was also submitted on behalf of the appellants that since no decision in regard to cancellation of the permit had been taken prior to 22nd August, 2016, i.e. the date on which the appellants applied for renewal of the permit, the S.T.A. should be directed to consider such application, if required, on receiving appropriate fine in terms of the provisions of Rule 151 of the West Bengal Motor Vehicles Rules. 4. On behalf of the S.T.A. it was contended that the proceedings for cancellation commenced at a point of time when the permit was valid and subsisting and the delay in terminating the proceedings occasioned only because the appellants delayed in filing their reply to the show cause notice. According to the S.T.A., the proceedings having commenced prior to expiry of the permit, there was no illegality in continuing the proceedings even thereafter. The learned Judge was urged not to interfere with the decision of the S.T.A. to cancel the permit issued in favour of the appellants. 5. Upon considering the rival submissions, the learned Judge was of the view that the appellants having admitted that they were plying the vehicle on the basis of a tampered timetable, they were guilty of violation of the provisions of Section 86(1)(b) of the Act, notwithstanding that they may not have the necessary knowledge, as pleaded in the reply to the show cause notice. The decision in Ajantha Travels (supra) was held to be inapplicable on the ground that such decision was rendered in a matter concerning cancellation of a temporary permit and not a permanent stage carriage permit. The learned Judge thereafter proceeded to record as follows : “Even if I accept the submission made by Mr. Khan that the respondent no. 2 cannot cancel the permit on the date on which it was not valid, the petitioners are not entitled to get the permit renewed Section 86(4(ii) of the Motor Vehicles Act, 1988 for plying he vehicle on the basis of the forged timetable.” Consequently, the learned Judge held that the writ petition did not warrant interference and accordingly, dismissed it. 6. Appearing on behalf of the appellants, Mr. 6. Appearing on behalf of the appellants, Mr. Khan, learned advocate has reiterated the submissions which have been noted by the learned Judge in the impugned judgement and order. Apart from placing reliance on Ajantha Travels (supra), Mr. Khan has also relied on the decision of a learned Judge of this Court dated 3rd December, 2013 in W.P. 34576(W) 2013 (Bikash Chandra Saha vs. The State of West Bengal and Ors.). Our attention has been drawn to the following passage in such decision: “There is no provision in the Act or the rules framed thereunder which obliges the permit issuing authority to call upon the permit holder to show cause as to why the permit issued in his favour, which has since expired, should not be cancelled. In other words, once the permit outlives its validity, it becomes a dead permit. Applicability of Section 86 of the Act relating to cancellation of permit would arise only in respect of a permit that is valid and operative. Recourse to cancellation of a dead permit is not envisaged in the statute.” 7. Mr. Khan has also argued that the S.T.A. did not record any finding that the appellants were aware of plying of the vehicle in terms of the tampered timetable. According to him, in the absence of such finding, the degree of culpability would differ and the appellants having made a prayer before the S.T.A. for sympathetic consideration of their case, the S.T.A. ought to have allowed the appellants to compound the violation in terms of the provisions contained in Section 86(5) of the Act. It was also urged that Section 86(5) casts a duty on the S.T.A. to record its opinion as to why it is not considered expedient or necessary to grant an opportunity to the permit holder to compound the violation instead of proceeding for cancellation of the permit. There being non-exercise of discretion vested in the S.T.A. without any cause being shown therefor, it is contended by Mr. Khan that the appellants were given a raw deal. 8. Answering the contentions of Mr. Khan, it was contended by Mr. There being non-exercise of discretion vested in the S.T.A. without any cause being shown therefor, it is contended by Mr. Khan that the appellants were given a raw deal. 8. Answering the contentions of Mr. Khan, it was contended by Mr. Sen, learned Additional Government Pleader, that the appellants had committed fraud by plying the vehicle on the basis of a tampered timetable and irrespective of the fact as to whether the permit was valid and subsisting or not on the date cancellation was ultimately ordered, the S.T.A. committed no wrong in continuing the proceedings even after the permit had expired. 9. It was his further contention that the proceedings for cancellation of permit having commenced with the issuance of the show cause notice dated 6th June, 2016, i.e. at a point of time when the permit was valid and subsisting and the appellants themselves having delayed submission of reply thereto, they are not entitled to reap the benefit of delayed conclusion of the proceedings which had occasioned by their conduct. 10. Mr. Sen, accordingly, prayed for dismissal of the appeal. 11. Having heard learned advocates for the parties, we are of the considered view that the basic issue emerging for decision on the appeal is whether the S.T.A. had the authority to cancel the permit which was not valid and subsisting on 16th December, 2016. 12. In Ajantha Travels (supra), a learned Judge of the Madras High Court while considering the case of cancellation of a temporary permit beyond its validity, had the occasion to consider Section 60 of the Motor Vehicles Act, 1939, which corresponds to Section 86 of the Act. Paragraph 5 o the decision is relevant and is, therefore, quoted below : “It is therefore clear that Sec. 60 contemplates the cancellation or suspension of a permit for violation of any or all of the grounds mentioned in clauses (a) to (f) of Section 60(1). Section 60(3) provides for the offence being compounded in the discretion of the transport authority by calling upon the permit holder to pay a certain sum of money. Therefore, in order to attract Secs. 60 (1) and (3) of the Act, a permit must be subsisting. If the permit had expired and is no longer subsisting, there cannot be any question of the permit being cancelled or suspended.” (Underlining for emphasis by us) 13. Therefore, in order to attract Secs. 60 (1) and (3) of the Act, a permit must be subsisting. If the permit had expired and is no longer subsisting, there cannot be any question of the permit being cancelled or suspended.” (Underlining for emphasis by us) 13. Much the same view has been expressed in Bikash Chandra Saha (supra). We are in agreement with the said views. 14. Having regard to the provisions of Section 86 of the Act as well as the other provisions relating to grant of permits to operate stage carriage services, we are of the clear opinion that there can either be cancellation or suspension of a permit, which is live on the date cancellation or suspension is ordered. A permit which has outlives its validity and has not been renewed in accordance with the provisions of Section 81 of the Act, would not entitle the permit holder to operate a vehicle on the basis of such permit. If there is no application from the permit holder seeking renewal of the permit, the permit becomes invalid and inoperative on the date of its expiry. Question of cancellation of such a permit is not envisaged in the Act. 15. The argument of Mr. Sen that the proceedings for cancellation of permit were commenced at a time when the permit was valid and subsisting and, therefore, the S.T.A. was justified in taking the proceedings to its logical conclusion by ordering cancellation, has not impressed us. No provision in the Act or the rules framed thereunder has been brought to our notice by Mr. Sen which empowers the permit issuing authority to continue the proceedings commenced during validity of the permit, to be taken to its logical conclusion even after its expiry. If indeed provisions had been made in the Act or the rules framed thereunder, the position would have been different. The S.T.A. was not, therefore, justified in proceeding to cancel a dead permit. 16. From the extract of the impugned judgment and order, it would also appear to be clear that the learned Judge himself was in some doubt as to whether the permit could have at all been cancelled at a point of time when it was not valid and subsisting. 16. From the extract of the impugned judgment and order, it would also appear to be clear that the learned Judge himself was in some doubt as to whether the permit could have at all been cancelled at a point of time when it was not valid and subsisting. However, His Lordship proceeded to observe that the violation of the terms and conditions of the permit could be taken as a ground for not granting the prayer for renewal. 17. We are of the considered view that the application for renewal of the appellants not having been considered at all by the S.T.A., the writ court could not have pre-judged the issue of non-acceptability of the application for renewal. 18. The next question that would arise for decision is whether the process of decision making, resulting in cancellation of the permit, was proper or not. 19. Although the S.T.A. has proceeded on the premise that there has been an admission on behalf of the appellants that the vehicle covered by the permit was being plied on the basis of a tampered timetable, the position in reality does no appear to be so. The admission was hedged with an explanation, - the circumstance that the vehicle was being plied on the basis of a tampered timetable was not to the knowledge of the appellants. Law is well-settled that an admission can be explained. The S.T.A. did not record any finding that the version of the appellants was found to be incorrect. Proceedings under Section 86 of the Act, being quasi-judicial in nature, it was obligatory on the part of the S.T.A. to record such a finding prior to ordering cancellation. Cancellation of permit being the harshest penalty that could be imposed upon a permit holder, it is axiomatic that the gravest violation would call for such penalty. No doubt, tampering of the time table calls for strict action but what has surprised us is that even no F.I.R. was registered by the S.T.A. and the proceedings were continued only on the basis of an alleged admission which was not entirely inculpatory. We are in agreement with Mr. No doubt, tampering of the time table calls for strict action but what has surprised us is that even no F.I.R. was registered by the S.T.A. and the proceedings were continued only on the basis of an alleged admission which was not entirely inculpatory. We are in agreement with Mr. Khan’s submission that the degree of culpability would not be the same in a case where violation of the terms and conditions of the permit, while the vehicle was being plied, occurs without the knowledge of the permit holder and in a case where it occurs with knowledge. In the former event, it is not always necessary to impose the harshest penalty. It is true that the appellants being the permit holders would be ultimately responsible for any acts of omission/commission of their agents and cannot escape by making a submission that the violation occurred beyond their knowledge. It is also true that the appellants as permit holders ought to have exercised due care and caution so that whoever takes charge of the vehicle, he complies with the terms and conditions of the permit. However, it could be so that in course of plying of the vehicle on the route, the agents who are entrusted commit a violation without informing the permit holder. It is in such cases where the S.T.A. is conferred the discretion to pass appropriate orders, as the circumstances might warrant. The appellants having tendered apology and prayed for sympathetic consideration, the minimum that was required by the S.T.A. was to record in the resolution that the circumstances are such which do not warrant extending an opportunity to the appellants to compound the violation by payment of fine. 20. We are, thus, of the considered opinion that the S.T.A. by failing to adhere to the aforesaid standards required of it, failed to render justice at its level to the appellants. 21. This takes us to the question of the relief to be granted to the appellants. The impugned judgment and order, for reasons aforesaid, cannot be sustained. Accordingly, the same stands set aside. The order of cancellation of a dead permit is declared to be a redundant exercise. 22. The application for renewal of permit appears to have been filed by the appellants on 22nd August, 2016, i.e. more than 45 days after expiry of the permit. Accordingly, the same stands set aside. The order of cancellation of a dead permit is declared to be a redundant exercise. 22. The application for renewal of permit appears to have been filed by the appellants on 22nd August, 2016, i.e. more than 45 days after expiry of the permit. Although in terms of Section 81(2) of the Act an application ought to be made not less than 15 days before the expiry of the permit, sub-section (3) of Section 81 thereof empowers the permit issuing authority to entertain an application for renewal of a permit after the last date specified in sub-section (2) provided it is satisfied that the applicant has shown good and sufficient cause for not filing the application for renewal within the specified time. 23. In view of such provision, the S.T.A. shall proceed to decide the application for renewal strictly in accordance with law. The application shall be decided on merits, only if the appellants are able to persuade the S.T.A. to hold that for good and sufficient reason the application for renewal could not be filed prior to 22nd August, 2016. The considerations which are germane for grant of permit initially, would apply proprio vigore in respect of renewal of permit and, therefore, the S.T.A. may in its own discretion take into consideration all such factors while deciding whether the application for renewal of permit ought to be granted or not. The application for renewal may be considered within two months from the date of receipt of a copy of this order. 24. Needless to observe, if the application for renewal is rejected, the order must be supported with reasons. 25. The appeal as well as the application stands disposed of. There shall be no order as to costs.