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2018 DIGILAW 657 (CAL)

Subhas Roy v. State of West Bengal

2018-09-06

HARISH TANDON

body2018
JUDGMENT : 1. The petitioner claiming himself to be the existing operator of route no. 81 and 81/1 on the strength of a Permanent Stage Carriage Permit challenged the action of the respondent authorities in extending the period of the offer letter issued to the respondent no. 6 beyond the ceiling limit provided under Rule 141 of the West Bengal Motor Vehicles Rules, 1989 (hereinafter referred to as ‘said Rules’). 2. Though the averments are made in the writ petition that initially the applications were called for by the Association, the respondent no. 7, but the application filed by the petitioner before the said respondent was not considered and/or processed and it appears that the respondent no. 6, who also filed the application with the Association, was favoured with the offer letter for grant of said permit in the newly notified route i.e. 81/1. 3. To remove any confusion in this regard, previously the permit was issued in respect of a combined route i.e. 81 and 81/1 to various operators and later on the authorities decided to issue the permit in a newly notified route i.e. 81/1 alone and the only applicant, who appears to have filed the application before the authorities, is respondent no. 6. It is unnecessary to go into the details of the facts averred in the instant writ petition, as the point of law, which has been raised, can be conveniently decided on the basis of the facts narrated herein above. 4. A preliminary point is taken by the respondent no. 6 that the petitioner has no locus standi to maintain the writ petition challenging the action of the respondent authorities in extending the period of the offer letter as he is not an existing operator. The respondent authorities have not disputed that the petitioner does not have the Stage Carriage Permit for the combined route i.e. 81 and 81/1. Even the petitioner categorically stated in the writ petition that he is also an operator in the said route and, therefore, the respondent no. 6 is factually incorrect. 5. The argument of the respondent no. 6 is firstly founded on the Constitution Bench decision of the Apex Court rendered in case Dr. Even the petitioner categorically stated in the writ petition that he is also an operator in the said route and, therefore, the respondent no. 6 is factually incorrect. 5. The argument of the respondent no. 6 is firstly founded on the Constitution Bench decision of the Apex Court rendered in case Dr. Umakant Saran vs. State of Bihar and others, reported in (1973) 1 SCC 485 , wherein it is held that the Mandamus cannot be issued compelling the authorities to perform their duties entrusted in the statute unless the person approaching the court satisfies that it has a legal duty and/or right and such right has been infringed. The learned Advocate for the said respondent further submits that the person, who is not an aggrieved party, cannot maintain the writ petition under Article 226 of the Constitution of India as held in case of D. Nagaraj and others vs. State of Karnataka and others, reported in (1977) 2 SCC 148 . The learned Advocate would further submit that the concept of locus standi has advanced in course of time because of the litigation by a public spirited person and in such litigation it would not be necessary that the person must have an interest in the matter, meaning thereby, if a writ petition is filed for Mandamus upon the respondent authorities he must show that he is interested in the matter and placed reliance upon the judgment of the Apex Court rendered in case of J. Mohapatra and Co. and another vs. State of Orissa and another, reported in (1984) 4 SCC 103 . 6. On the other hand, the learned Advocate for the petitioner submits that he is an existing operator in the combined route and has challenged the action of the respondent authorities when it exceeds beyond the statutory powers under the said Rules and, therefore, the petitioner has the locus standi to maintain the instant proceeding. 6. On the other hand, the learned Advocate for the petitioner submits that he is an existing operator in the combined route and has challenged the action of the respondent authorities when it exceeds beyond the statutory powers under the said Rules and, therefore, the petitioner has the locus standi to maintain the instant proceeding. He placed reliance upon the Larger Bench judgment of this Court in case of Prabhat Pan and others vs. The State of West Bengal and others, reported in (2015) 2 Calcutta High Court Notes (Cal) 185 and submits that the reference was made on the identical points questioning the locus standi of the existing operator to maintain a writ petition challenging the grant of permit to the new operator and it has been held that the writ petition is maintainable at their behest. 7. This Court pains to record that a practice has developed at the Bar in citing innumerable judgments and/or decisions of different High Courts as well as Supreme Court on an abstract proposition of law without embarking to read whether the facts of those cases can be kept in parity with the facts involved in the present litigation. The judgments are cited on a proposition of law without sensing that the decision is what is decided in the said case on the basis of the facts involved therein. Segregating and/or culling out one sentence from the entire judgment and an attempt to percolate the sense in the Court that the same is the ratio of the said judgment cannot be appreciated and there must be a sense of responsibility to be inculcated in the Members of the Bar, who holds such a high position and being an Officer of the Court, to be one of the important organ of dispensation of justice in adversarial system. If the sense of high responsibility is percolated in the Members of the Bar and perceived in true sense would not only avoid the lengthy arguments or wastage of precious time but shall also invite the correct judgments, which have a ultimate impact on the litigant, who approached the Court to redress his grievance. 8. If the sense of high responsibility is percolated in the Members of the Bar and perceived in true sense would not only avoid the lengthy arguments or wastage of precious time but shall also invite the correct judgments, which have a ultimate impact on the litigant, who approached the Court to redress his grievance. 8. The point, which appears to be more or less settled, is sought to be unsettled with such brazen attempt inviting the Court to deal with each of the judgments cited before the Court and makes the judgment lengthy, though it could have been decided in more lucid and specious manner, as the point is already settled by the Larger Bench of this Court. This Court is very optimistic and hope that the good sense would prevail amongst the Members of the Bar and the meaningful arguments and the points, which involved in the litigation, are taken and arguments are restricted thereupon. 9. Though there is no point in venturing to enter into the question of locus standi of the petitioner to maintain the writ petition in view of the categorical statements made in the writ petition that he is an existing operator in the combined route, yet this Court feels that once an argument is advanced on behalf of the respondent no. 6, this Court would be failing in its duty in not dealing with those decisions. 10. In case of Dr. Umakant Saran (supra), the challenge was thrown by the petitioner therein being the Civil Assistant Surgeon in Bihar State Medical Service challenging the appointment of the private respondents therein as Lecturers in the Ranchi Medical College on the premise that they do not have any teaching experience. It was factually found that the petitioner and the private respondents belonged to the same service at relevant point of time when they were deputed as Lecturers in Surgery in Rajendra Medical College and a contention was raised by the petitioner therein that he being a senior in service has a necessary qualification of teaching experience and others do not have and, therefore, their appointments are unconstitutional. In the backdrop of the same, the Court while dealing with the questions involved therein held that the High Court may issue Mandamus to compel the authorities to do something provided the statute imposes a legal duty upon the authorities and the aggrieved party has a legal right under the statute to enforce its performance. 11. On the same identical points, the Apex Court in case of D. Nagaraj and others (supra) held that if a person is not aggrieved by the discrimination complained of, the writ petition at his behest is not maintainable. 12. Though it has not been directly held in case of J. Mohapatra and Co. and another (supra) yet it can be deduced from the observations made therein that the only exception in maintaining the writ petition when a litigant is not bound to show his personal prejudice or infringement of his legal right if he has approached the Court by way of Public Interest Litigation. 13. There cannot be any quarrel to the proposition that unless a person satisfies the legal prejudice and infringement of any such right, the proceeding at his behest, apart from Public Interest Litigation, may not be maintainable. The plea of locus standi has been conceptualized in several legal pronouncements and has been advanced from time to time to meet the exigencies and also the change of law so enacted. 14. If a point is directly covered in a judgment rendered by the Supreme Court or the High Court and if the Judge does not find to take a contrary view or a dissenting view to what has been taken in such judgment, the judiciary discipline demands that the judgment, which has a direct bearing, should be respected. However, in the event the Judge finds that the said judgment has not considered the various aspects or even after great persuasion is not able to agree with such decision, it is open to the said Judge to refer the matter to the Chief Justice for constituting a Larger Bench. 15. As indicated above, there cannot be any quarrel to the proposition of law laid down in the aforesaid Constitution Bench decision yet it is to be considered in the perspective of the facts involved in the instant writ petition. The petitioner claims himself to be the existing operator in a combined route i.e. 81 and 81/1. 15. As indicated above, there cannot be any quarrel to the proposition of law laid down in the aforesaid Constitution Bench decision yet it is to be considered in the perspective of the facts involved in the instant writ petition. The petitioner claims himself to be the existing operator in a combined route i.e. 81 and 81/1. The point of reference, as would appear from paragraph 1 of the Special Bench decision rendered in Prabhat Pan and others (supra), is whether the writ petition is maintainable at the instance of an existing operator challenging the grant of a permit to a rival operator in violation of the statutory provisions. The answer can be seen from the observations made in paragraphs 41 to 44 of the said judgment, which are reproduced as under : “41. A judgment is an authority for the legal position that it expressly decides and not anything else which is deemed to have been considered or decided. The dictum in Mithilesh Garg is binding on this Court and has to be regarded as the law declared by the Supreme Court under Article 141 of the Constitution; but what is binding is only the ratio decidendi of that judgement. The ratio decidendi of a judgment has to be discerned upon the reading of the whole of the judgment and has to be found out from what is set out in the judgment itself. As to what is set out in the judgment, it has to be read in the context of the matter and not in isolation. A judgment is not to be read as a statute and its ratio is its reasoning on how the law was applied to the facts to arrive at the conclusion. The statements of the Supreme Court contained in its judgments, other than the law, have no binding force. 42. The dictum in Mithilesh Garg has, thus, to be confined to a situation where an existing operator is seen to challenge the entry of a rival in his theatre of operation on the ground of the existing operator’s business or commercial interests being prejudiced. The judgement cannot be read to imply that an existing operator has no right to complain of an illegal or irregular act of the transport authorities in allowing a new entrant to operate in the same or like field. The judgement cannot be read to imply that an existing operator has no right to complain of an illegal or irregular act of the transport authorities in allowing a new entrant to operate in the same or like field. There is no doubt that it is the commercial interest of an existing operator that may impel him to challenge the grant of a permit to a rival; but if the challenge is based on the perceived irregular or illegal acts and conduct of the transport authorities, the challenge cannot be repelled only on the ground of business rivalry. 43. The Motor Vehicles Act, 1988 and the rules or policy guidelinesframed thereunder bind the transport authorities to act in a particular manner in the matter of grant of permits or allowing commercial plying of vehicles. Several of these statutory provisions have been noticed in the first order of reference and have been referred to by the writ petitioners in course of the present proceedings. Since statutory authorities are bound to act in accordance law, and the manner in which the law requires them to act, the actions of the statutory authorities are justiciable. If there is a complaint that the grant of a permit or like action is in derogation of the statutory provisions or the rules or policy guidelines framed thereunder or in colourable exercise of authority, the acts complained of can be subjected to judicial review, subject to the complainant suffering or being likely to suffer a degree of prejudice thereby. If the complaint is of the irregular or illegal exercise of authority which results in the complainant being affected or likely to be affected, the status of the complainant as a business rival of the beneficiary of the irregular or illegal executive largesse will not stand in the way of the complaint being received for judicial review. However, if there is a tribunal entitled to receive such complaint, the High Court in exercise of its jurisdiction under Article 226 of the Constitution should be slow to entertain the complaint, unless the act complained of is demonstrably and ex facie without jurisdiction or in complete violation of the principles of natural justice; or, like exceptions apply when the Court does not regard the alternative remedy to be efficacious. 44. 44. Accordingly, the primary question raised in the two orders of reference is answered thus: subject to the considerations as to there being an efficacious alternative remedy, a writ petition at the instance of existing operators providing stage-carriage services on different routes, who seek to challenge the grant of fresh permits in favour of new operators (either on the self-same routes on which they have been operating or touching a portion of the same) by the transport authorities is maintainable if the challenge is on the ground of illegality or arbitrariness or colourable exercise of power or otherwise being violative of Article 14 of the Constitution, notwithstanding that the action may be impelled by the commercial interests of the existing operator; provided that, the substance of the challenge is not founded only on the commercial interests of the existing operator being prejudiced by the acts complained of.” 16. In view of the exposition of law in the Larger Bench decision, there is no hesitation in my mind that the writ petition is maintainable at the behest of the petitioner and, therefore, the preliminary objection on locus standi fails. 17. Reverting back to the merit of the instant writ petition, as indicated above, the petitioner has challenged the action of the respondent authorities in extending the validity of the offer letter issued under Rule 141 of the said Rules being contrary to the said provision. Before this Court proceeds any further, it would be profitable and convenient to quote the provisions contained under Rule 141 of the said Rules, which reproduced as under : “141. Before this Court proceeds any further, it would be profitable and convenient to quote the provisions contained under Rule 141 of the said Rules, which reproduced as under : “141. Every permit must contain the Registration Mark of the vehicle which shall ply by virtue of the permit granted and during the period prescribed by the Transport Authority granting the permit in the Offer Letter which shall not normally exceed one month from the date on which the Offer Letter is issued, the grantee must produce the documents in respect of the vehicle showing that he is in possession of the vehicle as owner thereof and that the change of address of vehicle concerned has been effected within this State, if previously registered outside this State and that the vehicle is/are not covered by any kind of permits : Provided that the Transport Authority granting the permit may have reasons to be recorded in writing, extend the validity of the Offer Letter up to six months from the date of issue of the same in exceptional cases.” 18. The said Rule postulates that the transport authorities while granting the permit in the offer letter shall see that it contains the registration mark of the vehicles and such permit in the form of offer letter shall not normally exceed one month from its date. However, proviso to the said Rules confers power upon the transport authorities to extend the validity of the offer letter up to six months from the date of the issue in exceptional cases subject to recording of the reasons in writing for the same. 19. On harmonious construction of both enabling as well as the proviso to the said Rule, it leaves no ambiguity that the outer cap or the ceiling limit for validity of the offer letter has been fixed at six months. When the enabling provision contemplates that the validity of the offer letter should not be beyond one month and the proviso empowers the authorities to extend the time up to an outer limit subject to recording reasons in writing only in exceptional cases, it ruled out any exercise of power by the authorities in casual and ordinary manner in extending the validity period of the offer letter beyond one month without recording any reasons as to the circumstances, which is exceptional and extraordinary in nature. When the statutory Rules provide the exercise of power in a particular way, the authorities cannot shirk the responsibilities in not strictly adhering to the same. Even if this Court finds that the extension was granted by the authorities (though no reasons are recorded in writing on an exceptional and extraordinary circumstances) yet the authorities cannot travel beyond the outer cap provided in the proviso to the said Rule. 20. It is trite law that an individual can do a thing unless forbidden by law; on the other hand, the statutory authorities cannot do the thing unless provided under the law. The statutory authorities trace their powers from the documents, which has a statutory flavour and, therefore, cannot travel beyond its periphery. The statutory authorities have to act within the precinct of law as any action in excess of powers invites interference by the Court and no right would accrue to a person because of the illegal and wrongful order passed by the authorities. 21. In view of the findings recorded herein above, the authorities cannot extend the validity period of the offer letter beyond one month from the date of its issuance unless in exceptional and extraordinary circumstances subject to recording of the reasons in writing, which also cannot exceed beyond six months. If the Rules does not provide extension of time beyond six months, which is an outer limit, the authorities cannot usurp power nor can travel beyond it as they are bound to squeeze within the circumference of the said provision. If the action of the statutory authorities is palpably beyond the perceived power under the statutory Rules, such action is par se illegal and there is no impediment on the part of the High Court to quash and set aside such decision. 22. Admittedly, the offer letter was issued to the petitioner on 14th December 2016 and the validity period of the same was extended from time to time even in the year 2018. Such decision of the authorities is apparently contrary to the provisions contained under Rule 141 of the said Rules and, therefore, cannot be rendered valid. The decision extending the validity period of the offer letter beyond six months from the date of first issuance of the offer letter is par se illegal, infirm and contrary to the provisions of the said Rule. 23. The decision extending the validity period of the offer letter beyond six months from the date of first issuance of the offer letter is par se illegal, infirm and contrary to the provisions of the said Rule. 23. The offer letter issued to the petitioner and extended from time to time is declared to be valid for a period of six months and any extension beyond it is illegal, void and is hereby quashed and set aside. 24. The writ petition is, thus, disposed of. 25. There shall, however, be no order as to costs.