Calcutta High Court (Appellete Side)
Smt. Labanya Shee vs State Of West Bengal & Ors on 5 June, 2015
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debasish Kar Gupta
W.P. 1085 (W) of 2015
Smt. Labanya Shee
Versus
State of West Bengal & Ors.
For the petitioners : Mr. Rameswar Bhattacharya
Mr. Ram Uday Bhattacharya
Mr. Arun Kanti Bera
For the State : Mr. Amal Kr. Sen
Mr. Tapas Adhikari
Judgment on: 05.06.2015.
Debasish Kar Gupta , J. :
This writ application is directed against a resolution dated December 17, 2013, adopted in respect of Agenda No.11 in the meeting of the respondent No.2. By virtue of the impugned resolution the respondent No.2 approved the application of the petitioner for granting permanent stage carriage permit in her favour to ply her vehicle (bus) on the route from Digha/Solepatta to Salt Lake Karunamoyee without touching the areas restricted under notification No.3438-WT/3M-139/2004 dated August 2, 2004, i.e. the Central Business District, viz. Esplanade and Band Stand in Kolkata and Howrah Station and approaching areas of Howrah Bridge (Rabindra Setu). There was a direction upon the petitioner to submit sketch showing the route alignment before obtaining offer letter.
In order to adjudicate the issues involved in this writ application, the backdrop of this case is taken up for consideration as follows:-
The petitioner submitted an application dated January 7, 2004, for granting State permanent stage carriage permit in her favour to ply her vehicle (bus) on the route from Solepatta to Kolkata. The above application of the petitioner was rejected by the respondent No.2 by adopting a resolution in its meeting dated February 18, 2004 (Item No.34/12). The operative portion of the above resolution is quoted below:-
"Considering inadequate space in the existing bus stand for halting more buses, the magnitude air/vehicular pollution, traffic congestion and insufficient road space to bear further traffic load in Kolkata and Howrah, State Transport Authority, West Bengal, therefore, resolved to reject the prayer of the applicant for grant of permit on the route Solepatta to Kolkata via Egra, Contai, Bajkul, N.H. 41, N.H. 4, Howrah Stn, on the ground that the further entry of state carriage services in Kolkata/Howrah will aggravate the present traffic congestion and vehicular pollution and disrupt the smooth traffic flow of Kolkata."
The petitioner filed an application under Article 226 of the Constitution of India in the matter of Smt. Labanya Shee Vs. State of West Bengal & Ors. (in re: W.P. 502 of 2004). By virtue of a judgment dated March 23, 2004 delivered in the matter, the above resolution dated February 18, 2004 (Item No.34/12) was set aside. The relevant portions of the above judgment are set out below:-
"In this case, no material has been placed before this Court by the said authority showing existence of any such notification, I thus find that the Transport Authority acted without jurisdiction in refusing the permit to the petitioner on the grounds mentioned above.
I thus set aside the order refusing the permit to the petitioner and direct the transport authority to reconsider the application of the petitioner on merit and while re-considering such application, the grounds mentioned above should not be taken into consideration again. Only in the case of deficiency of the petitioner, his prayer for permit can be dismissed. The respondent - authority at any rate should take a decision within a month from the date of communication of this order and should communicate such decision to the petitioner within a week thereafter.
The writ application is thus disposed of with the above directions.
There will be no order as to costs.
All parties concerned are to act on a xeroxed signed copy of this Dictated order on the usual undertaking.
Sd/-
(Bhattacharya, J)"
In compliance of the above judgment, the respondent No.2 adopted a resolution in respect of the above application of the petitioner in its meeting dated April 21, 2004. By virtue of the above resolution the respondent No.2 decided to grant permit in favour of the petitioner on the route from Digha to Howrah (New Bus Terminus) subject to submission of detailed route alignment and on production of new vehicle (BS-II emission norms complaint). The above resolution is set out below:-
"Smt. Labany Shee - WP No.502 (W) of 2004 (Route: Solepatta to Calcutta via Egra, Contai, Bajkul, NH-41, NH- 6, Howrah Rly. Stn.) In compliance with the order of the Hon'ble High Court, Calcutta dated 23.3.2004 in the above writ petition, the petitioner was call on for the hearing. On behalf of the petitioner his advocate represented. The matter was heard and considered. After discussion STA, West Bengal has decided to grant permit in favour of the writ petitioner from Solepatta to Howrah New Bus Terminus subject to submission of detailed route alignment; production of new BS-II emission norms vehicle and the vehicle should be registered in her own name.
The reason behind it is that it is desirable to avoid entry to Kolkata on grounds of traffic congestion and vehicular / air pollution in the city of Kolkata and Howrah. In compliance with the order dated 21.11.2003 passed by the Hon'ble High Court Kolkata in GA No.568 of 2002, APOT No.83 of 2002 - M/s Sankar Automobiles and Others, a Committee was constituted vide Notification No.44-WT/7E-1497/2003 dated 2.1.2004 by State of West Bengal for examination of Roads space, availability of halting space and terminus; assess the accommodation of buses; the load of staff attached to those buses; taking stock of different termini at different places; shifting and opening of new terminus at the outskirts of the city and other considerations etc. and submit recommendation to the State Government within three months for adopting a comprehensive passenger transport policy."
A notification No. 3438-WT/3M-139/2004 dated August 2, 2004, was issued by the Government of West Bengal Transport Department. The above notification was published in the official gazette on August 6, 2004. The above notification was issued in compliance of the judgment dated November 21, 2003, delivered in G.A. No.568 of 2002/APOT No.83 of 2002. By virtue of the above notification the respondent No.2 and the Regional Transport Authorities in this State were directed to act on the basis of the conditions mentioned therein while considering the question of granting new stage carriage permits. The above conditions are set out below:-
"1. No new bus route be formulated and permits be issued which may pass through the Central Business District, viz, Esplanade and Band Stand in Kolkata and Howrah Station and approach areas of Howrah Bridge (Rabindra Setu); till further orders;
2. No new permit for Stage Carriage shall be issued which may originate/terminate in Esplanade and Band Stand in Kolkata and Howrah Station;
3. No new bus route shall be created/formulated in Kolkata and Howrah without creating any appropriate parking place having requisite amenities for both the passengers as well as the transport workers;
4. No new permit shall be issued for autorickshaw operating within Kolkata Metropolitan area.
This order shall take immediate effect.
By order of the Governor.
Sumantra Choudhury Principal Secretary to the Government of West Bengal."
An offer letter was served upon the petitioner by the respondent authority under memo No.STA/2242/04/SC/7E-377/04 dated November 24, 2004, for issuing a permanent stage carriage permit on basis of her above application to ply vehicle on the route from Digha to Howrah New Bus Terminus - via -Egra, Contai, Bajkul, NH-41, NH-6, Howrah Station and back.
A judgment dated September 27, 2005, was delivered by a Division Bench of this Court in the matter of Sujata Ganguly & Ors. Vs. State of West Bengal & Ors. (In re: F.M.A. 604 of 2004 with M.A.T. Nos.1235 and 1236 of 2005) and the relevant portions of the above judgment are quoted below:-
"The Policy Decision: Permits: How to be granted:
5. Now, we may turn to the effect of the notification in respect of the granting of permits. So far as the situation is concerned it might be governed by the following directions:
5.1. The State Transport Authority and Regional Transport Authority of Calcutta and Howrah may issues stage carriage permits against offer letters already issued by the concerned authorities prior to the issue of the Notification No.3438-WT/3M-139/2004 dated 2nd August, 2004 published on 6th August, 2004 subject however to the notification dated 20th May, 2003 issued under Section 71(3)(a) of the Motor Vehicles Act, 1988. No offer letter or permit shall be issued in violation of the policy decision notified on 6th August, 2004. In cases where offer letters have been issued after 6th August, 2004 which violates the policy decision dated 6th August, 2004, no permit shall be granted in respect of such offer letters so issued.
5.2. The Regional Transport Authority, Kolkata and Howrah may fill-up vacancies against the strength fixed in the notification dated 20th May, 2003 issued under Section 71(3)(a) of the Motor Vehicles Act, 1988.
5.3. The State Transport Authority may receive the application for grant of stage carriage permit on routes covering to two or more regions only in terms of Section 68(3)(b) of the 1988 Act and Rule 86 of the 1989 Rules and not otherwise and upon declaring a clear policy intimated to all, having regard to the Clause 'a' and 'c' of Sub-section 3 of Section 68.
5.4. Subject to the above conditions the Regional Transport Authority, Kolkata and Howrah may issue permits against the offer letters already issued in terms of the notification dated 20th May, 2003.
5.5. The Regional Transport Authority, Kolkata and Howrah, if it so thinks fit, may renew the vacancy existing in different notified routes and may fill up such vacancies remaining after such renew and may also undertake the process of filling up the casual vacancies against notified strength as the case may be.
5.6. It is pointed out that there are some notified routes notified under Section 71(3)(a). In some cases there are certain existing permits which overlap such notified routes. For the time being such permits might be permitted to be operating subject however to the decision of the State Transport Authority/Regional Transport Authority, as the case may be, upon review. But no fresh permits shall be granted overlapping such routes if not already granted before 6th August, 2004.
Routes touching CBD: Whether can be prohibited:
6. The other question that has been raised that this policy decision prohibits grant of permit only on routes originating from or terminating at CBD of Kolkata and Howrah as notified but also prohibits both the notified and non-notified routes touching CBD Kolkata and Howrah.
Such a decision in perverse and ultra vires the statute.
6.1. We do not think that if such decision is taken the same can be said to be perverse or ultra vires the statute. Such routes can be operated without touching CBD and in such cases no such permit shall henceforth be granted apart from the permits already operating since prior to 6th August, 2004. In respect of permits granted after 6th August, 2004 the routes should be modified so as not to touch CBD Kolkata and Howrah in terms of the policy declared by the notification published on 6th August, 2004.
The Implementation: The process:
7. Subject to what has been observed above and the directions contained herein each case of the operators who are parties in this appeal or who have been added as parties and all other operators shall be decided by the appropriate authorities in the light of the observation made hereinabove and shall decide in each cases on the basis of the directions given in this order. Such decisions are to be taken at the earliest preferably within a period of three months from the date of communication of this order to the respective authorities. Mr. N. I. Khan shall take the responsibility of communicating the decision to the respective authorities within a period of seven days he receives a plain copy of this order.
7.1. This order will not affect the applications or offer letters even if made after 6th August, 2004 if it does not violate or flout the policy decision dated 6th August, 2004 and the notification dated 20th May, 2003 issued under Section 71(3)(a).
Order:
8. All the applications and the appeals are thus disposed of and shall be guided by the observation made and the directions given in paragraph 5, 6 and 7 hereinabove.
8.1. The interim order already granted stands discharged subject to the observation made and the directions given hereinabove. 8.2. So far as Mr. Majumdar's client is concerned in MAT 1235 of 2005 and MAT 1236 of 2005, the order passed by the learned Single Judge stands modified to the extent as indicated in this order.
8.3. Plain copy of this order duly counter-signed by the Assistant Registrar (Court) be given to Mr. N.I. Khan for such communication by 5th October, 2005.
(D.K. Seth, J) (Soumitra Pal, J)"
The petitioner filed an application under Article 226 of the Constitution of India in the matter of Labanya Shee Vs. State of West Bengal & Ors. (In re: WP No.5433 (W) of 2013), challenging the validity of the resolution dated April 21, 2004 adopted in the meeting of the respondent No.2 in respect of the above application of the petitioner. The above writ application was disposed of June 11, 2013 and the relevant portions of the above judgment are set out below:-
"Mr. Bera, learned advocate for the petitioner submits on instructions that she is willing to have the route proposed by her further modified so as to obviate the problems that were visualised by the STA while taking the impugned decision dated 21st April, 2004 and makes a prayer for a direction on the STA to consider whether permit could be granted in her favour covering Solepatta to Salt Lake with terminus at Karunamoyee bus stand.
The proposal of the petitioner appears to be fair and reasonable and accordingly while disposing of this writ petition, I grant liberty to the petitioner to make a prayer before the STA in this behalf in continuation of her application for permit and if such prayer is received by the STA, it shall proceed to consider and disposed of the same in accordance with law as early as possible but not later than six weeks from the date of receipt of such prayer.
Needless to observe, the petitioner shall be offered opportunity of hearing before disposal of her prayer.
There shall be no order as to costs.
Urgent photostat certified copy, if applied for, be supplied to the parties expeditiously.
(DIPANKAR DATTA, J)"
The petitioner submitted a representation dated June 20, 2013, before the respondent No.2 with a prayer for granting stage carriage permit in her favour on the basis of her application dated January 7, 2004, with a proposal to ply her vehicle up to bus terminus at Karunamoyee Bus Stand (Salt Lake) via - Lenin Sarani, Moulali, Sealdah, Beleghata Sales Tax Office, Alochhaya Cinema, Chingrighata, Nicco Park in stead of Calcutta CBT. The above representation was disposed of by adopting a resolution in its meeting dated December 17, 2013 (Agenda No.11). By the above resolution the application of the petitioner to ply her vehicle (bus) on the route from Digha/Solepatta to Salt Lake Karunamoyee was allowed subject to avoiding the areas which had been under notification No.3438-WT/3M-139/2004 dated August 2, 2004, i.e. the Central Business District, viz. Esplanade and Band Stand in Kolkata and Howrah Station and approached areas of Howrah Bridge (Rabindra Setu). The petitioner was directed to submit sketch showing the route alignment for issuing offer letter in her favour on the basis of the above resolution. This writ application is filed by the petitioner assailing the above resolution dated December 17, 2013 (Agenda No.11) adopted in the meeting of the respondent No.2.
It is submitted by Mr. Ramehwar Bhattacharya, learned counsel appearing on behalf of the petitioner that at the time of considering the application of the petitioner under reference dated January 7, 2004, there was no existence of the notification No.3438-WT/3M-139/2004 dated August 2, 2004. According to the petitioner the impugned resolution cannot be sustained in law on the ground of taking the above notification into consideration. It is also submitted by Mr. Bhattacharya appearing on behalf of the petitioner that the law prevailing on the date of adopting first resolution dated February 18, 2004, should have been taken into consideration at the time of adopting the impugned resolution.
Mr. Bhattacharya relies upon the provisions of sub-Section (c) of Section 6 of Bengal General Clauses Act, 1897, in support of his above submission that the law prevailing at the time of considering the application of the petitioner for the first time should have been taken into consideration. Relying upon a notification No.1940-WT/3M-18/2013 dated May, 16, 2004, it is further submitted by Mr. Bhattacharya that granting of permanent stage carriage permit on route under reference on the revised proposed route of the petitioner could be considered.
It is further submitted by Mr. Bhattacharya that the impugned resolution is liable to be set aside on the ground of discrimination in granting stage carriage permits or issuing offer letter in respect of the following applications:-
Name of the Permit P.St.P. no. Route Date of
holder issue
1. Swapan Maity 30/07(I/R) Telami to Calcutta 28.2.2007
(Esplanade via.
Howrah Rly. Stn.
2. Swapan Maity 31/07(I/R) Hhirakonia to Calcutta 28.2.2007
(Esplanade via.
Howrah Rly. Stn.
3. Nirmal Jana 33/07(I/R) Bakkhali to Howrah 28.2.2007
Railway Station (Via.
Esplanade CBT)
4. Nitai Kumar 36/07(I/R) Sonakania to 7.3.2007
Barik Namkhana (via.
Howrah Station &
Esplanade).
5. Biplab Kumar 35/07(I/R) Turka to Howrah 28.2.2007
Pradhan Railway Station
6. Biswajit Bhunia 93/07(I/R) Digha to Kolkata via. 08.06.2007
Howrah Rly. Stn.
7. Suprava Bera Barrackpore to
Howrah Rly. Stn.
8. M/s. Jana 09/07(I/S) Kolkata to 9.3.2007
Travels Chandaneswar via.
Howrah Rly. Stn.
9. Dilip Knthua 40/07(I/R) Kolkata to Digha via. 15.3.2007
Howrah Rabindra Setu
10. Swapan 04/07(I/R) Digha to Kolkata (CBT) 29.06.2007
Kumar Patra via. Howrah Railway
Station
11. Debasish 200/07(I/R) Bankura to Kolkata 28.09.2007
Ganguly
12. Motiar Uddin 125/09(I/R) Keyagaria to 06.10.2009
Berhampur
13. Debashis 195/2010(I/R) Alampur to Jalangi 26.07.2010
Mondal
Reliance is placed by Mr. Bhattacharya on the decision of Glaxso Smith Kline PLC & Ors. Vs. Controller of Patents & Designs & Ors. reported in AIR 2009 SC 1147: (2008) 17 SCC 416.
It is submitted by Mr. Amal Kr. Sen, learned Senior Government advocate, High Court, Calcutta appearing on behalf of the State- respondents that in view of the judgment dated June 11, 2013, delivered in WP No.5433 (W) of 2013, the proposal of the petitioner for granting permanent stage carriage permit in her favour on the modified route was considered by the respondent authority. The date of consideration of the above proposal was December 17, 2013. The respondent No.2 took into consideration the law prevailing on that date since the modified route as proposed by the petitioner in her representation dated June 20, 2013, was taken up for consideration for the first time on December 17, 2013.
According to him, the modified proposal of the petitioner as communicated by a letter dated December 27, 2013, cannot be granted in respect of the route alignment prohibited under the notification No.3438- WT/3M-139/2004 dated August 8, 2004.
The attention of this Court has been drawn by Mr. Sen towards the judgment dated June 11, 2013, delivered in the matter bearing WP No.5433 (W) of 2013 to submit that the date of submitting the application on January 7, 2004, cannot be taken into consideration after modification of the alignment of the route proposed in his representation. It is further submitted by Mr. Sen that the modified route alignment includes Lenin Sarani in respect of which no permanent stage carriage permit could be granted on the date of adopting the impugned resolution.
With regard to the allegation of discrimination in granting stage carriage permits in favour of others on the route under reference, it is submitted by Mr. Sen that all the aforesaid permits were granted on the basis of the orders passed by this High Court in respect of different writ applications.
Reliance is placed by Mr. Sen on the decision of SBI vs. Raj Kumar, reported in (2010) 11 SC 661.
Having heard the learned advocates for the respective parties as also after careful consideration of the facts and circumstances of this case on the basis of the materials on record, I am of the opinion that the claim of the petitioner for creation of a vested right in her favour and the date of creation of such right has to be determined first.
Admittedly, the application of the petitioner dated January 7, 2004, for granting permanent stage carriage permit in her favour for plying her vehicle from Solepatta to Kolkata on the alignments - via - Egra, Contai, Bajkul, NH-41, NH-6, Howrah Station was rejected by a resolution dated February 18, 2004 (Item No.34/12) adopted in the meeting of the respondent no.2. It is also not in dispute that in compliance of the judgment dated March 23, 2004, passed in the matter of Smt. Labanya Shee vs. State of West Bengal & Ors. (in re: WP No.502 (W) of 2004), the respondent no.2 adopted a resolution in respect of the above application of the petitioner in its meeting dated April 21, 2004. By virtue of the above resolution, the respondent no.2 decided to grant permanent stage carriage permit under reference in favour of the petitioner on the route from Digha/Solepatta to Howrah (New Bus Terminus) subject to submission of detailed route alignment and on production of new vehicle (BS-II emission norms complaint). By virtue of the above resolution the petitioner was further directed to avoid entry in Kolkata in view of the restrictions imposed by notification no.44-WP/7E-1497/2003 dated January 2, 2004.
It is the settled principle of law that the law prevailing at the time of creation of any vested interest in favour of a person is material for consideration of the subsequent actions of the respondent authority. Reference may be made to the decision of Union of India vs. R. Padmanavan reported in (2003) 7 SCC 270 and the relevant portions of the above decision are quoted below:-
"8. . . . That was a case wherein this Court had to consider the claims of lessees for renewal of their leases or for grant of fresh leases under the Tamil Nadu Minor Mineral Concession Rules, 1959. The High Court was of the view that it was not open to the State Government to keep the applications filed for lease or renewal for a long time and then dispose them of on the basis of a rule which had come into force later. This Court, while reversing such a view taken by the High Court, held that in the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application, despite the delay, if any, involved although it is desirable to dispose of the applications, expeditiously. Therefore, the reward could not have been allowed in this case completely ignoring the amendments, which came into force in April 1989, merely because the seizure was in February 1989. That apart, under the Scheme final reward is postulated only on adjudication of the case resulting in confiscation of the goods as found stated in clause 6 of the Guidelines and that should, therefore, be crucial and the relevant date for consideration of award and, therefore, the Guidelines, as are in force on the date, will be really applicable and would be relevant. Consequently, the exclusion of the amendment, which was made in April 1989, from consideration in this case, may not be proper, and the conclusion to the contrary by the High Court, cannot be sustained."
(Emphasis supplied) The above settled proposition of law has been adopted by the Hon'ble Supreme Court in a matter of considering of an application for appointment of compassionate ground. According to the above decision if a claim provides for creation of a right in favour of a person automatically on the basis of her application then the date of approaching the authority is material for applying the law prevailing at that time but, if a decision is adopted by the respondent authority to allow the prayer of the petitioner subject to fulfillment of conditions mentioned therein, no vested right is created on the date of arriving at such decision by the respondent authority. Reference may be made to the decision of SBI vs. Raj Kumar reported in (2010) 11 SCC 661 and the relevant portions of the above decision are quoted below:-
"9. Normally, the three basic requirement to claim appointment under any scheme for compassionate appointment are: (i) an application by a dependent family member of the deceased employee; (ii) fulfilment of the eligibility criteria prescribed under the scheme, for compassionate appointment; and (iii) availability of posts, for making such appointment. If a scheme provides for automatic appointment to a specified family member, on the death of any employee, without any of the aforesaid requirements, it can be said that the scheme creates a right in favour of the family member for appointment on the date of death of the employee. In such an event the Scheme in force at the time of death would apply.
10. .........
11. ........
12. Obviously, therefor, there can be no immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, up to the date of consideration may have to be taken into account. As none of the applicants under the scheme has a vested right, the scheme that is in force when the application is actually considered, and not the scheme that was in force earlier when the application was made, will be applicable."
(Emphasis supplied) After considering the facts of this case, it is not in dispute that a resolution was adopted in the meeting of the respondent no.2 on April 21, 2004, for granting a permanent stage carriage permit in favour of the petitioner subject to furnishing of the alignment of the proposed route for plying the vehicle of the petitioner taking into consideration the notification no.44-WP/7E-1497/2003 dated January 2, 2004.
It is also not in dispute that the petitioner did not furnish any proposal afresh in respect of alignment of routes on the basis of which the permanent stage carriage permit could be granted in her favour. From the judgment dated June 11, 2013, passed in the matter of WP No.5433 (W) of 2013, it was evident that the above writ application was disposed of taking into consideration the submissions made on behalf of the petitioner to propose a route alignment afresh. Therefore, the date of disposal of the application of the petitioner on the basis of her fresh proposal with regard to alignment of routes was material for creation of a vested right in her favour.
It is not in dispute that upon consideration of the proposed alignment of the routes in the meeting dated December 17, 2013, the respondent no.2 was of the opinion that a portion of the alignment proposed by the petitioner had been affected by the notification dated August 2, 2004, in respect of Central Business District, that is Esplanade and Band Stand in Kolkata as also Howrah Station and approaching areas of Howrah Bridge (Rabindra Setu). Admittedly, the above notification was in force on the date of adopting the the above resolution. Therefore, on the basis of the order passed in the writ application for treating the above proposal in continuation of her application dated January 27, 2004, no vested interest was created in favour of the petitioner with regard to the modify alignments of the route under reference in view of the proposition of law settled in the matter of R. Padmanavan (supra) and Raj Kumar (supra). So, there was no impropriety in taking into consideration the restrictions imposed by virtue of the notification dated August 2, 2004.
Upon consideration of the proposal of the petitioner, I find Lenin Sarani, Moulali, Sealdah, Beleghata Sales Tax Office, Alochhaya Cinema, Chingrighata, Nicco Park were included in the proposal for reaching of the vehicle of the petitioner to the proposed terminus at Karunamoyee Bus Stand instead of her proposal of the alignments appeared in her application dated January 7, 2004. So, the petitioner could not claim vested right in respect of the above alignment in view of the proposition of law as discussed hereinabove.
In view of the above there was no impropriety or illegality in adopting the impugned resolution granting liberty to the petitioner to propose alignments of routes in the light of the observations made in the impugned resolution.
According to the provisions of sub-Section (c) of Section 6 of the General Clauses Act, 1897, where the above Act, or any Central Act or Regulation made after commencement of the above Act, repeals any enactment. The repeal should not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed as discussed hereinabove. The writ application bearing WP No.5433 (W) of 2013 was disposed of on June 11, 2013, granting liberty to the petitioner to furnish alignment of route afresh before the respondent no.2 in continuation of her application for permit under reference and if such prayer was received by the respondent no.2, it should proceed to consider and disposed of the same in accordance with law. The petitioner submitted her representation dated June 20, 2013 with a prayer for granting stage carriage permit in her favour on the basis of the application dated January 7, 2004, furnishing the route alignments afresh for consideration of her application for permit under reference. Considering the above alignment, I am of the opinion that there was no scope for the respondent no.2 to consider the application of the petitioner ignoring the restrictions imposed under notification no.3438-WT/3M-139/2004 dated August 2, 2004. Therefore, no vested right was created in favour of the petitioner in connection with the alignment of route which had been considered by the respondent no.2 on earlier occasions. As a result, the petitioner was not entitled to enjoy any benefit under the provisions of sub-Section (c) of Section 6 of the General Clauses Act, 1897.
In the decision of Glaxso Smith Kline (supra), the Hon'ble Supreme Court took into consideration the right which had been created in favour of the petitioner after the Patents (Amendment) Act, 2005 came into operation. In view of the above distinguishable facts, no relief can be granted to the petitioner taking into consideration the above decision.
So far as the question of alleged discrimination with regard to granting of stage carriage permits to the other applicants to ply their vehicles on the route under reference is concerned, I find from the submissions made on behalf of the respondent authority that those were granted on the basis of the directions given in the writ applications filed by the applicants concerned. No material is brought on record to show that those applicants are similarly circumstanced with the petitioner. Further, according to the settled proposition of law, Court cannot direct any authority to act contrary to law. Reference may be made to the decision of State of U.P. vs. Harish Chandra reported in AIR 1996 SC 173 and the relevant portion of the decision is quoted below:-
"10. Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the Court came to hold that the list does not expire after a period of one year which on the face of it is erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law...................."
(Emphasis supplied) The claim of the petitioner has been examined on the basis of the proposition of law taking into consideration the facts and circumstances involved in this case. Therefore, it is not open this court to grant any relief to the petitioner ignoring the question of her legal right only on the basis of the above alleged discrimination.
In view of the discussions and observations made hereinabove, liberty is granted to the petitioner to submit proposal of alignments of route afresh, keeping in mind the restrictions imposed by virtue of the notification dated August 2, 2004, within a period of three weeks. In the event the above proposal is furnished by the petitioner, adhereing to the observations made herein above, the respondent no.2 is directed to grant permanent stage carriage permit to the petitioner on the basis of the above proposal of route alignment within a period of two months from the date of submitting the above proposal, subject to compliance of formalities by the petitioner.
This writ application is, thus, disposed of.
There will be, however, no order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
( Debasish Kar Gupta, J.)