Calcutta High Court (Appellete Side)
For The vs The State Of West Bengal &Ors.) In on 11 February, 2020
Author: Protik Prakash Banerjee
Bench: Dipankar Datta, Protik Prakash Banerjee
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Dipankar Datta, J.
And The Hon'ble Justice Protik Prakash Banerjee, J.
CAN 9684 of 2017 (Application for stay) With CAN 1758 of 2018 (Application for vacating of the interim order) In MAT 1620 of 2017 State of West Bengal and Others
--v--
Avijhit Ghosh and Others With CAN 1715 of 2018 (Application for addition of party) With CAN 8390 of 2017 (Application for addition of party) In 2 MAT 1443 of 2017 Sarup Biswas and Others
--v--
Avijhit Ghosh and Others
For the Appellants in : Mr. N.I. Khan, Adv.,
MAT 1443 of 2017
Mr. Amlan Kumar Mukherjee, Adv.
For the Appellants in : Mr. Amal Kumar Sen, Additional
MAT 1620 of 2017 Government Pleader,
Mr. Lal Mohan Basu, Adv.
For the Writ Petitioner : Mr. Arkadipta Sengupta, Adv.
/Respondent No. 1.
Heard on : 20.12.2017, 14.02.2018, 20.07.2018,
11.07.2019, 27.08.2019, 03.09.2019,
17.09.2019, 26.09.2019.
Judgment Reserved on : September 26, 2019.
Judgment on : February 11, 2020.
PROTIK PRAKASH BANERJEE, J.:
1. Two intra-court appeals from the same order dated August 9, 2017 have come before us and with the consent of the parties they were consolidated and heard analogously. The said order dated August 9, 2017 was passed on WP No.26463 (W) of 2016, at the instance of the writ petitioner/respondent no. 1, whereby the writ petition was allowed to the extent of setting aside the order dated January 22, 2016 passed by the Principal Secretary, Department of Transport, West Bengal, the corrigendum dated March 4, 2016 passed by the 3 same authority, and the consequent notification purportedly under Section 71(3)(a) of the Motor Vehicles Act, 1988 dated June 17, 2016 published in Part I of the Kolkata Gazette Extraordinary on June 30, 2016. The State of West Bengal which was the principal respondent therein, alongwith the Regional Transport Authority and its Secretary, preferred MAT No.1620 of 2017 therefrom, whereas respondents No.4, 5, 6 and 8 in the writ petition, preferred MAT No.1443 of 2017.
2. The writ petition was allowed by the impugned order basically because His Lordship was pleased to hold that while some existing operators were given a hearing without the official respondents (appellant State herein) being under any obligation to do so, the other existing operators were not heard, before the fleet strength was increased. There are other observations relating to the inherently contradictory stands taken by the State as a respondent in the writ petition, and the conduct of the private respondents who pretended in an earlier public interest litigation to be members of the commuting public to seek consideration of their representation for increase of fleet strength in two given routes, whereas they or their relatives were actually existing operators, and who turned around and applied for additional permits for stage carriage vehicles after the fleet strength was increased, which subterfuge was deprecated by the Division Bench hearing a recalling application by the self-same writ petitioner/respondent no. 1, as a matter of displeasure that the public interest litigants had not disclosed their identity as permit holders while applying as commuters in respect of the said route even while dismissing the recalling application.
3. However, at the time of oral hearing of the appeals no submissions were advanced by the two sets of appellants against the said finding of 4 His Lordship on the basis of which the writ petition had been allowed; instead, while the Appellants in MAT 1620 of 2017 argued on matters which were not on the basis whereof the writ petition was allowed, and took an objection to the said findings of the learned Single Judge in their memorandum of appeal and the written notes of arguments, the appellants in MAT 1443 of 2017 adopted the submissions of the Appellants in MAT 1620 of 2017 and took an additional ground of equity being in their favour.
4. In order to decide these appeals, perhaps we ought to consider the facts in a slightly different manner from that in which it was presented in the writ petition, based on the records which were placed before us and dealt with by all the parties, which formed a part of their argument.
THE BACK DROP:
5. In India, motor transport and carriage of passengers used to be regulated by and under the provisions of the Motor Vehicles Act, 1939 (referred to hereinafter as "the said Act of1939"). Sections 47 and 57 of the said Act of 1939 gave a right to existing operators in a route to file objections and the authorities had a right to impose limit on the number of permits. This was completely effaced by the new Motor Vehicles Act, 1988 (referred to hereinafter as "the said Act of 1988") which had, among its other objects, liberalization of the grant of permits. A perusal of the provisions of the said Act of 1988, particularly Sections 67, 68, 70, 71 and 80 would show that in effect, the following have been ordained: -
Under Section 67 which provides the power to State Government to control road transport, a State Government, may issue directions to the State and Regional Transport Authorities regarding the passengers' convenience, economically convenient fares, prevention of overcrowding and road safety by way of a notification in the Official Gazette, having regard to the advantages offered to the public, trade and industry by the development of motor transport; desirability of coordinating 5 road and rail transport; the desirability of preventing the deterioration of the road system, and promoting effective competition among the transport service providers. Such directions regarding the fixing of fares and freights for stage carriages, contract carriages and goods carriages may provide that such fares or freights shall be inclusive of the tax payable by the passengers or the consignors to the operators of such carriages under any extant law.
Under Section 68, Transport Authorities have been defined alongwith their composition, criteria of eligibility, disqualifications, savings of powers in respect of meetings, and functions. Of these, the State Transport Authority discharges the powers and functions specified in Section 68(3) of the said Act of 1988 whereas a Regional Transport Authority discharges throughout such areas being regions, as may be specified in the notification in respect of each Regional Transport Authority such powers and functions conferred under Chapter V of the said Act of 1988 on such Authorities. The Notification in both cases is issued by the State Government and in case of a Union Territory, by the Administrator who may choose not to constitute a Regional Transport Authority. The primary function of both Authorities is to give effect to any direction issued under Section 67 aforesaid, and the State Transport Authority, in addition has the powers and functions - subject of course to such directions as otherwise provided by or under the said Act of 1988, being to co- ordinate and regulate the activities and policies of the Regional Transport Authority, if any, of the State; to perform the duties of a Regional Transport Authority where there is no such Authority and, if it thinks fit or if so required by a Regional Transport Authority, to perform those duties in respect of any route common to two or more regions; to settle all disputes and decide all matters on which differences of opinion arise between Regional Transport Authorities and any other matter which may be prescribed. Interestingly the power to formulate routs for plying stage carriages has been retained with the State Government and none of the Transport Authorities, which is only to be expected in view of Section 67(3) (supra). Besides, subject to conditions which may be prescribed, the State Transport Authority may issue directions to the Regional Transport Authority which shall in discharge of its functions, give effect to and be guided thereby. Again, if the State Government authorizes the State Transport Authority or any Regional Transport Authority in this behalf, by Rules made under Section 96, then these authorities can delegate their powers and functions to the authority or person mentioned in the delegation, subject to the conditions, limitations and restricts prescribed by the said Rules. Under Section 70 of the said Act of 1988, the particulars required for applying for stage carriage permits or reserve carriage permits have been provided for including such documents as may be prescribed.
The contents of Section 71 of the said Act of 1988 upto and including its third sub- section are very material and I quote them hereinbelow: -
Procedure of Regional Transport Authority in considering application for stage carriage permit-
(1) A Regional Transport Authority shall, while considering an application for a stage carriage permit, have regard to the objects of this Act. (2) A Regional Transport Authority shall refuse to grant a stage carriage permit if it appears from any time-table furnished that the provisions of this Act relating to the speed at which vehicles may be driven are likely to be contravened:
Provided that before such refusal an opportunity shall be given to the applicant to amend the timetable so as to confirm to the said provisions. (3) (a) 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 a regional Transport Authority to limit the number of stage carriages generally or of any specified type, as may be fixed and specified in the notification, operating on city routes in towns with a population of not less than five lakhs.
While grant of stage carriage permit is governed by Section 72 of the said Act of 1988 whereby it has been made clear that no such permit would be granted in respect of any route or area not specified in the application, the conditions which can be attached to the permit have been provided for in Section 72(2) of the said Act of 1988.
Similarly, Section 80 requires to be quoted in its entirety since it shows that though ordinarily a grant of permit is not refused, there are situations where it can be refused, summarily or otherwise, and these are enumerated in Section 80 and the procedure for refusal clearly enunciated. It also provides for variation of a permit by altering the routes or areas or inclusion thereof, or increasing the number of trips or the variation, extension or curtailment of routs or areas, and when fresh permit is to be issued and when it is deemed to be a new permit.
6
80. Procedure in applying for and granting permits-
(1) An application for a permit of any kind may be made at any time. (2) A [Regional Transport Authority or any other prescribed authority referred to in sub-section (1) of section 66] shall not ordinarily refuse to grant an application for permit of any kind made at any time under this Act:
Provided that the [Regional Transport Authority, State Transport Authority or any other prescribed authority referred to in sub-section (1) of section 66] 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 a in a notification in the Official Gazette under clause (a) of sub- section (3) of section 71 or of contract carriages as fixed and specified in a notification in the Official Gazette under clause (a) of sub-section (3) of section 74: Provided further that where a 1[Regional Transport Authority, State Transport Authority or any other prescribed authority referred to in sub-section (1) of section 66] refuses an application for the grant of a permit of any kind under this Act, it shall give to the applicant in writing its reasons for the refusal of the same and an opportunity of being heard in the matter.
(3) An application to vary the conditions of any permit, other than a temporary permit, by the inclusion of a new route or routes or a new area or by altering the route or area covered by it, or in the case of a stage carriage permit by increasing the number of trips above the specified maximum or by the variation, extension or curtailment of the route or routes or the area specified in the permit shall be treated as an application for the grant of a new permit:
Provided that it shall not be necessary so to treat an application made by the holder of stage carriage permit who provides the only service on any route to increase the frequency of the service so provided without any increase in the number of vehicles:
Provided further that,-
(i) in the case of variation, the termini shall not be altered and the distance covered by the variation shall not exceed twenty-four kilometers;
(ii) in the case of extension, the distance covered by extension shall not exceed twenty-four kilometres from the termini;
and any such variation or extension within such limits shall be made only after the transport authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so varied or extended or any part thereof. (4) A 1[Regional Transport Authority, State Transport Authority or any other prescribed authority referred to in sub-section (1) of section 66] may, before such date as may be specified by it in this behalf, replace any permit granted by it before the said date by a fresh permit conforming to the provisions of section 72 or section 74 or section 76 or section 79, as the case may be, and the fresh permit shall be valid for the same route or routes or the same area for which the replaced permit was valid:
Provided that no condition other than a condition which was already attached to the replaced permit or which could have been attached thereto under the law in force when that permit was granted shall be attached to the fresh permit except with the consent in writing of the holder of the permit.
(5) Notwithstanding anything contained in section 81, a permit issued under the provisions of sub-section (4) shall be effective without renewal for the reminder of the period during which the replaced permit would have been so effective
6. Thus, it will be clear that the Parliament in its wisdom took away the right of existing operators to file objections to increasing the fleet strength or enhancement of limit of the number of stage carriage permits in any particular route. In the said Act of 1988, however, there is a provision under Section 71(3)(a) under which a limit can be fixed for the grant of permits in respect of the routes which are within 7 a town having population of more than five lakhs but only if the manner prescribed therein is followed.
7. In apparent compliance with Section 71(3)(a) of the said Act of 1988, the Appellant in MAT 1620 of 2017, under direction of the Central Government, as conveyed by the Special Order No.288(E) dated April 4, 1994, by a Notification dated May 9, 2000 published May 10, 2000 in the Official Gazette, directed the Regional Transport Authorities of Calcutta and of Howrah to limit the Stage Carriages (ordinary service and special service) and Special Stage Carriages operating as city services with immediate effect within the jurisdiction of Calcutta Police along with the areas under Salt Lake and Lake Town Police Station in respect of RTA Calcutta and within the area of the Howrah Municipal Corporation in respect of RTA Howrah, in the manner specified therein with immediate effect. It was made clear that the list could be altered or added to subsequently, if so considered necessary by the State Government. The maximum number of stage carriage permits to be granted for the routes being 30C and 30C/1, being items no.48 and 49 of the list in the said Notification, were 45 each, that is to say, a total fleet of 90 vehicles, being 45 in each such route, was the limit imposed by the said Notification.
8. By another Notification, dated May 7, 2003 and published in the Official Gazette on May 20, 2003, similarly under direction of the Central Government by the said Special Order No. 288(E) dated April 4, 1994, the Appellant in MAT No.1620 of 2017 directed the concerned Regional Transport Authorities to limit the number of Stage Carriages (ordinary service and special service) and Special Stage Carriages operating on city routes in towns with the jurisdiction of the Kolkata Police alongwith the areas under Salt Lake and Lake Town 8 Police station as mentioned therein, with immediate effect, to the numbers given in the list appended thereto, which could be added to or altered subsequently. In this Notification dated May 7, 2003, items No.48 and 49 pertained to Routes 30 and 30C/1 respectively, and the number of permits in each case was reduced to 25, that is to say, a total of 50 vehicles were to be given permits. It does not appear from the said notification that these were additional stage carriages, to be added to the existing 90. Rather, stage carriages in the said two routes were limited to 50, with 25 permits pertaining to each route.
This, therefore, reduced the fleet strength keeping in mind the factors mentioned in Section 71(3)(a) of the said Act of 1988. It is this notification dated May 7, 2003 that the Notification dated June 17, 2016 purported to modify under Section 71(3)(a) of the said Act of 1988 which was struck down by the learned Single Judge.
9. It appeared that two contradictory stands were taken by the Transport Authorities leading to litigation: on the one hand they were refusing to grant permits originating and terminating from the cities of Kolkata and Howrah on the ground of pollution and congestion in the bus termini, while on the other hand sometimes immediately thereafter, such permits were being granted. In some cases, the refusal was supported by an alleged policy decision of the State Government which was also disclosed on affidavits but unfortunately, the Court acting under Article 226 of the Constitution of India found that no such policy decision was ever taken. In such circumstances by an order dated November 11, 2003 passed in GA No.568 of 2002, APOT No.83 of 2002, a coordinate bench was pleased to direct the Transport Department, Government of West Bengal, that a committee be constituted to examine the position relating to availability of road space, halting space/terminus, extent of accommodation of buses in 9 each such terminus and such other related matters in connection with issue of permits to the transport vehicles vis-à-vis the prevailing traffic congestion and automobile pollution in and around the cities of Kolkata and Howrah, to enable the State to frame a Comprehensive Passenger Transport Policy for the city of Kolkata and its outskirts on the basis of the recommendations of the said committee.
10. Accordingly, a Committee was constituted. The Committee after going into the matter had submitted its report. Upon consideration of the report, the Government took a policy decision. This policy decision was notified by a Notification No. 3438-WT/3M-139/2004 dated August 02, 2004, published in the Official Gazette. By reason of the said notification, a policy decision was intimated to the public prohibiting issue of permits in respect of Stage Carriages on the routes both notified and non-notified touching or originating or terminating at Kolkata and Howrah, Central Business Districts mainly Esplanade and Band Stand in Kolkata and Howrah Station and approach areas of Howrah Bridge. The text of this notification ought to be considered in its entirety and, thus, is reproduced below:
"Registered No. WB/SC-247 No. WB/DTP/Pt.I/CPS/2004/5989 The Kolkata Gazette Extraordinary Published by Authority SRAVANA 15 FRIDAY, AUGUST 6 2004 SAKA 1926 PART I- orders and Notifications by the Governor of West Bengal, the High Court, Government Treasury etc. GOVERNMENT OF WEST BENGAL Transport Department 10 NOTIFICATION No. 3438-WT/3M-139/2004 Kolkata, 2nd August 2004.
Whereas the Hon'ble Division Bench presided over by His Lordship the Hon'ble Mr. Justice D. K. Seth of the Hon'ble High Court at Calcutta by an order dated 21.11.2003 in G.A. No. 568 of 2002/A.P.O.T. No. 83 of 2002 was pleased to direct the Transport Department, Government of West Bengal, that a Committee be constituted to examine the position relating to availability of road space, halting space/terminus, extent of accommodation of buses in such termini and such other related matters in connection with issue of permits to the transport vehicles vis-à- vis the prevailing traffic congestion and automobile pollution in and around the cities of Kolkata and Howrah, to enable the State Government frame a Comprehensive Passenger Transport Policy for the city of Kolkata and its outskirts on the basis of the recommendations of the said committee;
And whereas the said committee, constituted vide Notification No. 44-WT/7E- 1497/2003 dated 2.1.2004 of the Transport Department, has submitted its report with recommendations for control of traffic congestion and vehicular pollution to the Government in July 2004;
And whereas the Government of West Bengal in the Transport Department has considered the entire report and decided to accept the recommendations of the said Committee for better control of traffic congestion and reduction in automobile pollution in the city of Kolkata in the interest of citizens;
Now, therefore, in compliance of the aforesaid order of the Hon'ble High Court and in pursuance to the powers vested upon the State Government as per provisions of the Motor Vehicles Act and Rules framed thereunder, the Governor is hereby pleased to direct the State Transport Authority, West Bengal and all the Regional Transport Authorities in the state, that:-
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 also 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 now permit shall be issued for auto rickshaw operating within Kolkata Metropolitan Area.
This order shall take immediate effect 11 By order of the Governor, Sumantra Choudhury Principal Secretary to the Government of West Bengal
11. This notification did everything which a notification under section 71(3)(a) of the said Act of 1988 could do and not anything beyond it and expressed a policy decision of the Government of West Bengal in respect of the cities of Kolkata and Howrah respectively. The validity of this notification fell for consideration by a co-ordinate bench of this Court and it was decided that the said notification was valid. Even if it was held to be one issued under the administrative functions of the State of West Bengal. This is the judgment in the case of Sujata Ganguly and Others--v--State of West Bengal and Others reported in 2008 (2) CHN 728. It was held by a coordinate bench that a policy having been declared pursuant to an order of the Court, it is no more open to challenge apart from the fact that this is a policy decision of this State which cannot be reviewed in judicial exercise unless patently ultra vires to the statute. In fact, the co-ordinate bench was pleased to decide and lay down the law as follows:-
"4.1. This policy decision is regulatory but not prohibitory. The Government has power to take a policy to regulate the operation of the state carriages in the State and it might put certain restrictions which cannot be construed to take away the right guaranteed under Article 19(1)(g). The entire statutory process for grant of permit in itself is regulatory. Therefore, the said policy decision cannot be assailed even if it is issued in exercise of administrative function when it was 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 the congestion and inconvenience faced in the respective stands. In any event, this restriction is operated only in the Central Business District in the city of Kolkata and Howrah as notified in the said notification being restricted in Esplanade and Band Stand in 12 Kolkata and Howrah Station and approach areas of Howrah Bridge (Rabindra Setu) in Howrah. Therefore, we do not think any reason that there is any infirmity in the notification that was issued."
12. This notification, therefore, having been judicially upheld as valid, could not be departed from, modified or varied, or replaced unless expressly referred to or superseded by any subsequent notification. We hold so as a matter of law.
13. The appellants in MAT 1443 of 2017 moved a petition purportedly under Article 226 of the Constitution of India in public interest on the basis of the allegations that the writ petitioners were commuters in respect of Stage Carriage routes no. 30C, 30C/1 and other sub-routes and that a fleet strength was so limited that the said commuters were facing utmost inconvenience in travelling in the crowded buses and that the fleet strength along those routes required to be increased. This was W.P. No. 14545(W) of 2015. At paragraph 9 of the said writ petition, however, the petitioners averred as follows:-
"9. That the petitioners alongwith other operators made a representation dated 16.6.2015 repeating and reiterating the aforesaid facts and prayed for increase of fleet strength of the route no.30C, 30C/1 apart from taking steps regarding filling up of the vacancies as per notification dated 20.5.2003 to mitigate the problems stated in the preceding paragraphs to ensure safe and convenient travelling of the commuters."
14. Thus it will be apparent that by a clever strategy, though the appellants in MAT 1443 of 2017 disclosed in the writ petition that they were operators on the said routes, at the time of argument this was concealed and an impression was given to the coordinate bench hearing the public interest litigation, as if the petition was at the instance of commuters on the said routes, in public interest. The other existing operators including the writ petitioner/respondent no. 1 13 herein, were not made parties nor any notice directed to be issued to them. The coordinate bench, after considering the submissions made before it, was pleased to direct on July 31, 2015 as follows:-
"Mr. N.I. Khan learned counsel appearing for the petitioners submits that the matter is required to be looked into with utmost promptitude, as there is a chronic shortage of public transport in the locality.
Mr. Pantu Deb Roy, learned counsel appearing for the State Respondents submits that the concerned Authorities are (sic for "have") enquired into the matter.
In view of the aforesaid submission, we dispose of the writ petition directing the respondent no.1 to consider the representation of the petitioners, being Annexure P-3 to this writ petition and after due inquiry take necessary steps as contemplated under the Act in accordance with law."
15. On the face of the said order passed by the coordinate bench, it will be clear that though there was an order to hold an inquiry, there was no direction to give any opportunity of being heard, to any person, even to the writ petitioners before the coordinate bench, who are the appellants in MAT 1443 of 2017. Again, the coordinate bench did not appear to have been much impressed with the submissions made by the State Respondents that the matter was being inquired into and/or had been inquired into, and thus directed a fresh due inquiry. There was no decision whatsoever, by the coordinate bench for increase of fleet strength in the said routes. It was left to the State to take a decision in accordance with law under the said Act.
16. It is clear from the order of the coordinate bench disposing of the so-called public interest litigation, that the State of West Bengal was represented by counsel. The State of West Bengal being the respondent no. 1 in that writ petition being WP No. 14545(W) of 2015, was represented by the Secretary of the Transport Department. Therefore, it 14 is clear that the command of the coordinate bench was directed squarely to the said Secretary of the Department of Transport of the State of West Bengal to consider the representation of the writ petitioners therein, being the appellants in MAT 1443 of 2017, and take necessary steps after due inquiry as aforesaid.
17. However, in purported compliance with the said order, we find that it was the Commissioner, Transport Department of the State of West Bengal who by a letter no. 3836-WT/8S-89/15 dated October 9, 2015 wrote to the Director of Public Transport/Public Vehicles Department of the State of West Bengal, inter alia, to "conduct an enquiry and submit a report to this Department with regard to feasibility of increasing the fleet strength of Stage Carriage Route No. 30C, 30C/1 and other sub-routes in order to enable this Department to take further necessary action in the matter". While we do not doubt that it was open to the Secretary of the Transport Department to have the enquiry conducted through any subordinate officer so long as the decision was taken by him after due consideration of the representation and a searching scrutiny of the inquiry report, we are rather surprised, that the order of the highest court in the State requiring a certain respondent to take certain action, could have been so cavalierly foisted to a subordinate officer to communicate the mandate as if it was a request, and the request did not even set out the parameters under which the feasibility was to be inquired into, or the factual conditions depending upon which the report was to be submitted, keeping in mind the provisions of the said Act of 1988 and all other relevant materials.
18. Be that as it may, pursuant to the aforesaid, the Officer-in-Charge, Case Section of the Public Vehicles Department submitted a report 15 dated October 28, 2015 based on a field inquiry, to the Regional Transport Authority, Kolkata. This is a curious report, which bears narration. It appears therefrom, that the enquiry of the Officer-in- Charge aforesaid consisted of a conversation with only one person being Sri Nirmal Ghosh, purportedly one of the "Starters" of the Hatiara Bus stand, and based only on his input, it was reported as a fact that out of 50 buses on that route only "40 to 41 are plying in the route with interval of 10-15 minutes on the basis of 1:1 ratio". The Officer-in-Charge claimed to have spoken to "some local commuters"
whose identities were not disclosed, who were allegedly commuters on the said bus routes, and also claimed to himself noticed that the buses of the above routes of various stands were "crowded even on holidays"
though October 28, 2015 was not a holiday and it was not alleged that the enquiry had been conducted over a period of days including any holiday. Such report seems not to have considered any pertinent particulars of the said locality namely local road condition, traffic congestion or pollution level of the vicinity or any such other relevant parameters while deciding such a sensitive issue which even the Committee referred to in the order of the coordinate bench in Sujata Ganguly (supra) had considered before making its recommendations. Perhaps such a slipshod exercise would not have been classified as an enquiry unless one considered that what it achieved: a resonating affirmation of the demands of the writ petitioners in WP No.14545 (W) of 2015, being the appellants in MAT 1443 of 2017, holding them to be "justified and genuine demand" without however, referring to the prohibitory Notification of August 2, 2004 referred to above, or its being upheld in the case of Sujata Ganguly (supra).
19. However, it is clear that the Regional Transport Authority, Kolkata, was well aware of both the prohibitory notification dated August 2, 16 2004 and of it being upheld in the case of Sujata Ganguly (supra). This is apparent from the letter that the Regional Transport Authority, Kolkata, sent to the Principal Secretary of the Transport Department forwarding the said enquiry report dated October 28, 2015, under cover of Memo No. RTA/BUS/3321 dated December 2, 2015. For the sake of completeness, the text of the said memo is quoted hereinbelow:-
"In pursuance of the order dt. 31.07.2015 passed by Hon'ble Division Bench of High Court, Calcutta in W.P No. 14545 (W) of 2015 (Swarup Biswas &Ors. -Vs- The State of West Bengal &Ors.) in terms of your Memo No. 3836-WT/8S-89 /15 dt 09.10.2015, R.T.A Kolkata had caused an enquiry through Officer-in-Charge-,Case Section, P.V.D, Kolkata into the feasibility of increasing the fleet strength of Bus Route No. 30C 30C/A.It transpires from the enquiry report that there is demand of the local people as narrated in Annexure "P-3" to the above noted writ petition in view of the fact of ongoing expansion of population, speedy urbanization of the local area attached to Hatiara Sharif and considering the requirements of commuters to avail frequent bus service covering the area attached to Hatiara Sharif , a renowned Holy Religious place of minority community.
It is a fact, that Route 30C,(Band Stand to Hatiara), 30C/1 (Outramghat to Hatiara) is a notified route having fleet strength 25+25=50 as per Gazette Notification lastly published on 20.05.2003 vide Notification No. 2129-WT/8S-50/2000,pt. III dt.7th May, 2003. While one terminating point (Band Stand/Outramghat) falls within the Central Business District of Kolkata , the other terminating point(Hatiara) is located near Shariff.
It appears that no further increase of fleet strength has been made during the period of last Twelve years. This Authority had already approached your good self for accordingly approval to the revised fleet strength as submitted to your kind honour vide no. RTA/BUS/2885 dt.29.10.2014 (copy of which annexed here for ready reference).The proposed fleet strength of Route 30C,30C/1 was placed 30+30=60 in place of existing fleet strength, though commuters demanded for increasing fleet strength of Route 30C, 30C/1 from 50 to 70.
Now, the facts narrated and prohibitory court order regarding increase of fleet strength within CBD Kolkata, may kindly be considered for further necessary action on the subject please."17
(The text is a direct quotation, and therefore some mistakes in spelling and usage are there, since they are of the sender of the memo).
20. The Parthian shot, needless to mention, was in the last paragraph, that there was a prohibitory court order regarding increase of fleet strength within the Central Business District of Kolkata - this naturally referred to the judgment in Sujata Ganguly (supra) upholding the notification dated August 2, 2004.
21. Despite receiving the said inquiry report, and the said forwarding letter clearly referring to the prohibitory order of the highest Court in the State, the Principal Secretary after calling the appellants in MAT 1443 of 2017 to a hearing, without calling the other operators on the said routes or any other commuters of the said routes, considered their representation and decided to increase the fleet strength, thereby also allowing the increased number of vehicles to pass through the central business district of Kolkata, without even referring to either Sujata Ganguly (supra) or the notification dated August 2, 2004, which expressly prohibited that course of action. The decision incorporating the aforesaid was dated January 22, 2016, and was passed in the presence of the five writ petitioners who had purportedly moved the coordinate Bench in public interest, being the appellants in MAT 1443 of 2017, their learned advocate, the Director of the Public Vehicles Department, Kolkata, and the Secretary of the Regional Transport Authority, Kolkata. The decision was as follows:-
"In compliance of the order dated 31.07.2015 passed by the Hon'ble Division Bench of High Court at Calcutta in respect of the WP NO. 14545(W) of 2015 all the writ petitioners were called for hearing. They appeared today i.e 22.01.2016 and heard.
The petitioners pleaded for increasing the fleet strength of Route No. 30C, 30C/1 from 50 to 70.18
As per Govt. Notification No. 2129-WT/8S-50/2000 pt. -III the 7th May ,2003 ,Fleet Strength of Route No. 30C from Band Stand to Hatiara is 25 & that of Route No. 30C/1 Outramghat to Hatiara is 25.
The Director, P.V.D,Kolkata caused an enquiry as per direction of this Department order dated 09.01.2015 as regards to consider the representation dated 16.06.2015 of the petitioners following the order of the Hon'ble High Court,Calcutta.
Accordingly, the Director,P.V.D,Kolkata submitted an enquiry report vide Memo No. RTA/BUS/3321 dt. 02.12.2015 regards feasibility of increasing the fleet strength of the said bus routes on the basis of field enquiry.
Moreover,R.T.A ,Kolkata Region also submitted proposal to increase the fleet strength of Route 30C & 30C/1 from 50 to 60 alongwith other cases vide Memo No. RTA/BUS/2885 dt. 29.10.2014.
The Learned Advocate,Shri Amlan Mukherjee, submitted a written statement on behalf of the WP s stating that the population of the concerned area is increased rapidly.So, the demand of increasing fleet strength in this route is highly justified with the modified alignment from Santragachi New Bus Stand to Hatiara via Band Stand.
Now,keeping in view the field enquiry as well as the proposal of the Regional Transport Authority,Kolkata Region and the Written Statement of the Advocate on behalf of the Petitioners. I am of the opinion that the fleet strength may be increased in the following manner in partial modification of the Notification No.- 2129-WT/8S- 50/2000 Pt.III the 7th May 2003 and its subsequent amendment.
Sl No. Route Name of the Route Maximum No. of Stage
No. Carriage to be granted
1. 30C Hatiara to Band 35
Stand
2. 30C/1 Hatiara to antragachi 35
New Bus Stand via
Nabanna Band Stand
The hearing in compliance of the direction of the Hon'ble Division Bench of High Court at Calcutta vide order dated 31.07.2015 of the said PIL matter is disposed of."19
22. This was corrected by a corrigendum dated March 4, 2016, omitting column no.3 of the Table appearing in the said reasoned order and making it clear that Route No.30C will be within Hatiara and the Kolkata Central Bus Terminus at Santragachi while Route No.30C/1 will be between Hatiara and Kolkata Central Bus Terminus at Santragachi via Nabanna Bus Terminus.
23. Pursuant to the aforesaid, a Notification was published on June 30, 2016 in the Kolkata Gazette, Extraordinary dated June 17, 2016 giving effect to the decision dated January 22, 2016 corrected as above. THE CASE FROM WHICH THE APPEALS BEFORE US AROSE:
24. Challenging the notification dated June 17, 2016 as also the decision dated January 22, 2016 as corrected by the corrigendum dated March 4, 2016, the writ petitioner/respondent no. 1 instituted WP No.26463 (W) of 2016. The order under appeal has been passed thereon as appears from what has been stated at paragraphs 1 and 2 above.
25. Since the notification as in paragraph 22 was purported to have been passed pursuant to the exercise initiated in response to the order dated July 31, 2015 in the so-called public interest litigation, the writ petitioner/respondent no. 1 before us, also applied for recalling of the order dated July 31, 2015 and addition of party to the disposed of WP No.14545 (W) of 2015 which was already disposed of. However, the same were dismissed as not being maintainable by an order dated February 10, 2017; though the coordinate bench, in the said order, deprecated that the public interest litigants had not disclosed their identity as permit holders while applying as commuters in respect of the said route. However, it was expressly made clear that since a writ 20 petition was pending in respect of the said notifications, the coordinate bench was not going into the merits of the matter.
THE ARGUMENTS OF THE STATE, APPELLANTS IN MAT 1620 OF 2017 AND OUR FINDINGS IN RESPECT THEREOF:
26. The entire argument of the appellants in MAT No.1620 of 2017 can be summarized under two headings: -
26.1. The Notification dated August 2, 2004 does not prevent further notifications being published, altering it.
26.2. There was no mandate to give any person any hearing in the order dated July 31, 2015 and hence the question of violation of natural justice, is passing the order dated January 22, 2016 without giving the writ petitioner/respondent no. 1 a hearing, does not and cannot arise.
27. Since Mr. Sen, the learned Additional Government Pleader representing the appellant in MAT No.1620 of 2017 has approached the point as in paragraph 26.1 from various different angles, perhaps we should deal with this first. He has first argued that the notification dated August 2, 2004 was issued by the Appellants aforesaid under Article 162 of the Constitution of India and it itself contained the seeds of its own modification, by use of the words "till further orders"
appended to the clauses of restriction. While the notification was upheld by the Hon'ble Division Bench in the case of Sujata Ganguly (supra), the rider must therefore, also have been held to be upheld.
Therefore, there was nothing wrong with the notification dated June 17, 2016 published on June 30, 2016, which was such a further order, enhancing the fleet strength of the routes in question in exercise of the power under Section 71(3)(a) of the said Act of 1988. He submitted that the earlier order dated August 2, 2004, published on August 6, 2004, was deemed to have been modified by the same authority by the 21 notification dated June 17, 2016 as published on June 30, 2016 thus paving the way for granting fresh permits on that route. He went on to submit that any act done in exercise of a power under Article 162 of the Constitution of India cannot override or offend against any act done in exercise of any power emanating from any specific provision under any particular statute covering a particular field. In support of his contentions, he relied upon, first, the judgment reported in (2011) 5 SCC 214 [P.H. PAUL MANOJ PANDIAN--v--P. VELDURAI] at paragraphs 45 to 48, and (2008) 8 SCC 765 [N.D.M.C. and Ors.--v-- Tanvi Trading and Credit Pvt. Ltd. and Ors] at paragraph 35. According to him, the said judgments are authorities for the proposition that under administrative law, where the executive power of the Union or State is exercised by issuing executive directions, they will rule the field but will not operate contrary to the statutory provisions. However, that begs the question whether the Notification dated August 2, 2004, published on August 6, 2004, was in exercise of the executive function under Article 162 of the Constitution of India or was it also in pursuance of the statutory power under Section 71(3)(a) of the said Act of 1988. The answer is to be found in the judgment in the case of Sujata Ganguly (supra). At paragraphs 4 and 4.1 of the said judgement at page 733 of (2008) 2 CHN 728, it was clearly held by the coordinate bench that the question was raised whether the said policy decision as incorporated in the notification published on August 6, 2004 was an administrative decision of the State or a statutory function. The coordinate bench did not hold that it was an administrative decision but that even if it was issued in exercise of administrative function, it could not be assailed unless it was patently ultra vires the statute, which it was not, in this case. In other words, the coordinate bench held that the notification published on August 6, 22 2004 was not ultra vires Section 71(3)(a) of the said Act of 1988 and there was no infirmity in it being regulatory as the statutory process itself envisaged. This has achieved finality and therefore, cannot be reopened in the present appeal, since it binds us.
In support of the submission that the notification published on June 30, 2016 is deemed to have modified the notification published on August 6, 2004 and that the power to create includes the power to destroy and also the power to alter what is created, taking an inspiration from Section 21 of the General Clauses Act, and that the notification published on June 30, 2016 was a deemed amendment of all earlier notifications governing the field of the upper limit of permits to be granted for the routes in question, Mr. Sen has relied upon the judgment reported in (2011) 3 SCC 193 [SHREE SIDHBALI STEELS LTD.--v--STATE OF U.P.] at inter alia paragraphs 36 to 41, et sequentia.
While there can be no doubt in regard to the ratio of the said judgment as also the earlier judgments referred to in this paragraph, we are constrained to hold, with equal respect, that the said judgment and the earlier judgments are simply not applicable to the facts of the appeals before us. The reason is that, for deemed amendment, or for alteration or for creation or destruction or deemed modification, it has be manifest on the face of the notification purporting to so amend, create, destroy or alter or modify that the authority was conscious of the earlier notification on the subject and any order of a competent court upholding the regulation, restriction or prohibition engrafted by the earlier notification. In the instant case, all that is manifest from the Notification published on June 30, 2016 is that the State of West Bengal was under the impression that the only notification binding it 23 was of May 7, 2003, which it was purporting to modify and in view of such express intendment, it cannot be said that the notification published on August 6, 2004 was deemed to be modified or deemed to have been amended. The said notification published on June 30, 2016 or the reasoned decision dated January 22, 2016 as corrected on March 4, 2016 seems to be blissfully unaware of the notification dated August 2, 2004, as published on August 6, 2004, and the regulatory restriction contained in it, which was upheld by a coordinate bench in Sujata Ganguly (supra) and which the present notification and reasoned order egregiously violates. Therefore, the same were not issued after considering all the relevant materials on record. Hence these points raised by Mr. Sen must fail and we hold against him for the reasons aforesaid.
28. Perhaps as an argument of desperation, Mr. Sen next argued that the notification published on August 6, 2004 has to be read down to the extent indicated in the notification published on June 30, 2016. When we pointed out that reading down was usually done in case of a challenge to the vires of a statute or statutory rules, to avoid having to declare the entirety unconstitutional, and that it was permitted only when the general words of the statute or statutory rule could be confined only to a particular manner, and not when the entire statute would become ineffective, as held in the case reported in (2016) 7 SCC 703 [CELLULAR OPERATORS OF INDIA--v--TRAI], he submitted that the two notifications can coexist harmoniously, provided we hold that the notification published on August 6, 2004 was modified to the extent mentioned in the notification published on June 30, 2016. For much the same reasons as recorded in our analysis at paragraph 26 above, this argument must also fail because the notification published on June 30, 2016 is absolutely silent about the restrictions operating 24 on the State because of the notification published on August 6, 2004 and the judicial pronouncement making it binding, in this regard. If in order to so harmoniously construe the act of a creature of the statute, the court in judicial review is asked to ignore a binding pronouncement of the highest court in the state applicable to and operative in the facts of the case, then in the name of harmonious construction, we will be upholding a creature of the statute exercising statutory powers to negate a judicial pronouncement without changing the conditions on which the judicial pronouncement was made, which even primary legislation cannot do. Thus, we cannot give such a reading to the said two notifications and must strike down the notification published on June 30, 2016 and the reasoned decision and corrigendum on which it is based. This argument too, therefore, fails.
29. The other points taken by Mr. Sen, about the learned Single Judge sitting in appeal over a policy decision does not really arise in the present case since His Lordship had quashed the notification and reasoned decision only on the ground of denial of natural justice and if the question of policy decision was to be considered, as we have considered it after hearing the submissions of all the parties in the appeals on that point, it would be clear that the State was trying to impose a policy decision in the teeth of and in violation of a binding judgment of a coordinate bench which, it could not satisfy us, was present to the mind of the State while notifying the said new policy decision of June 30, 2016. Therefore, it does not help Mr. Sen's cause by submitting that the court has sat over in appeal over a policy decision or that the policy decision was not ultra vires the statute or the Constitution of India when it clearly violates the judgment of a Court which it allowed to become final and when it was framed 25 ignoring a valid and binding judicial pronouncement which is applicable.
30. Coming now to the question raised by Mr. Sen as summarized by us in paragraph 26.2 above, though there was no oral argument on this point, Mr. Sen has submitted at paragraph C (i) of his written notes of argument as follows: -
"The authority afforded opportunity of hearing to the writ petitioners in W.P.No. 14545 (W) of 2015 (PIL) which had been disposed of by directing the State of West Bengal to consider the representation of the petitioners therein. The aforesaid opportunity of hearing was not extended to anybody as existing operator on the route in question, but as petitioners in W.P No.14545(W) of 2015"
31. This submission in the written notes of submission by itself shows that something was done, in the decision-making process, which was materially irregular. We have tried our best to find any mandate or anything in the order dated July 31, 2015 passed by the coordinate bench disposing of WP No.14545 (W) of 2015 to see whether there was any direction for giving any person any opportunity of being heard before taking a decision. We could not find such a direction. Therefore, the writ petitioners who are appellants in MAT 1443 of 2017 could not have been given any opportunity of being heard by the Principal Secretary in terms of the order dated July 31, 2015. Since the opportunity of hearing was not extended to anyone as an existing operator, it begs the question why such an opportunity, alien to the order dated July 31, 2015, was given. The only shred of justification offered was that since it was the representation of the appellants in MAT 1443 of 2017 who were the petitioners in WP No.14545 (W) of 2015 which was being considered, they were heard and this was a part of the process of inquiry. However, the process of inquiry, we have been at pains to show in the factual background of this case, was completed before the matter came to the Principal Secretary for decision. If then, 26 without any mandate from the coordinate bench he decided to hear the writ petitioners in WP No.14545 (W) of 2015 - as affected commuters on the said routes but thereafter revealed to be existing operators - then natural justice demanded that other persons who would be affected by the proposed increase in fleet strength as also other stakeholders in respect of the congestion on the said routes, the congestion in the central business district of Kolkata, pollution thereat, the protection and enhancement of the environment, the road condition, should also be heard. Some of these included the writ petitioner/ respondent no. 1, as existing operator in the field. While it is true that under the statute as it now stands there is no right for an existing operator to be heard before fleet strength is increased, if some such operators are heard then without any cogent reason to show that there exists reasonable differentia between them and the others not called, and/or that there is a rational nexus of such distinction with the object of classification, not calling such others would amount to hostile discrimination. On this issue, therefore, we are at one with His Lordship that the principles of natural justice were grossly violated in the decision-making process behind the decision dated January 22, 2016 which was the basis of the said notification published on June 30, 2016 and therefore, they are in violation of Article 14 of the Constitution of India and thus were rightly quashed.
32. While we are on the subject, we must note that Section 71(3)(a) of the said Act of 1988 merely mentions that the exercise of statutory powers by the State Government depends upon a direction of the Central Government "having regard to the number of vehicles, road conditions and other relevant factors". Accepting that the power to limit has been delegated to the State Government in terms of the statute, under direction of the Central Government, as conveyed by the Special 27 Order No.288(E) dated April 4, 1994 by a Notification dated May 9, 2000 published May 10, 2000 in the Official Gazette, and that the power to alter or add to the limits has also been given to the State Government, thereby, it is incumbent on the State Government to record a specific finding as to not only the road conditions, but also other relevant matters, which must, of necessity, include the factors mentioned in Section 67(3) of the said Act of 1988 before increasing the fleet strength which would necessarily pass through the tremendously congested central business district of Kolkata. These, however, are not part of the decision-making process and the decision dated January 22, 2016 or its correction does not show that any of these relevant materials were considered by the Appellants in MAT 1620 of 2017 before coming to the said decision. Accordingly, even on the anvil on which the appellants in MAT 1620 of 2017 have asked us to judge their actions, their actions including the said decision dated January 22, 2016, its correction dated March 4, 2016, and the resultant notification published on June 30, 2016, fail and we agree that they ought to be quashed, though for the additional reasons aforesaid, and not merely because of the gross violation of the basic principles of natural justice as held by His Lordship while deciding the writ petition. THE ARGUMENTS OF THE APPELLANTS IN MAT 1443 OF 2017 AND OUR FINDINGS IN RESPECT THEREOF:
33. Mr. N.I. Khan, appearing for the respondents No.4, 5, 6 and 8 in the writ petition, who are the appellants in MAT 1443 of 2017, has adopted the submissions made by Mr. Sen, for the State/Appellants in MAT 1620 of 2017.
34. In addition, Mr. Khan has submitted that his clients were the petitioners in the public interest litigation being WP No.14545 (W) of 28 2015. They and/or their relatives were carrying on business as operators in the said routes and after the reasoned order and notification published on June 30, 2016, and relying upon them, each of them has applied for and obtained permits to ply stage carriages in the said routes, and they have invested substantial amounts to purchase the chassis and make the motor vehicles compliant with all the rules for plying them on the roads. He submits that his clients did nothing wrong and as recorded by the learned Single Judge, there was adequate disclosure about the petitioners being local operators on the said routes in their writ petition being WP No.14545 (W) of 2015. In paragraph 9 of the public interest litigation they had disclosed that the petitioners "alongwith other operators" had made the representation, which shows that they had never concealed that they were operators, but their grievance was as local commuters and on behalf of local commuters. He has also submitted that since his clients acted on the basis of the representations made by the State and its servants by issuing the said notification and granting permits, and they had altered their position to their material prejudice by spending money for buying chassis for motor vehicles, making them roadworthy in terms of the statutory rules, and obtaining permits, the State was estopped from preventing them from plying their stage carriages on the said routes after increase of the fleet strength, the operation of this estoppel was so equitable, that the Court acting under Article 226 of the Constitution of India or even as an appellate court, should hesitate before intervening in the matter to the prejudice of these appellants, in the facts and circumstances of the case.
35. In order to avoid all controversies about affecting those who were not parties to these appeals by our final decision, we had, by an order dated September 3, 2015, allowed an application being CAN 1715 of 29 2018 made by the writ petitioner/respondent no. 1 for addition of those persons who are similarly situated as Mr. Khan's clients, who were also beneficiaries of the same notification published on June 30, 2016 and in whose favour permits were issued for plying stage carriages on the said routes after increase of fleet strength. We had directed issuance of notices to them through the learned advocate on record of the writ petitioner/respondent no. 1. We had made clear by our said order dated September 3, 2019 that after the addition of party, whatever decision we took as would affect Mr. Khan's clients would also similarly affect these added parties. Such notices were issued and duly served on the added parties.
36. Coming now to our findings, since we have held against Mr. Sen in respect of all his submissions as shall appear from what has been stated at paragraphs 26 to 31, we can hardly take a different decision on the same grounds which Mr. Khan has adopted. Therefore, the appeal being MAT 1443 of 2017 also fails for the same reasons as stated in paragraphs 26 to 31 above.
37. However, the additional ground taken by Mr. Khan, about operating of an estoppel against the State and more importantly, that it would be inequitable to quash the said notification, the reasoned decision and its correction, after the appellants in MAT 1443 of 2017 were led to alter their position to their material prejudice relying upon them is concerned, we must remind the said appellants that as late as filing the memorandum of appeal they have attempted to make out a case that though they were operators on the said routes, they had approached this Court in public interest in their capacity as local commuters. This clearly indicates their intention to mislead the coordinate bench as to the exact nature of their interest and that 30 regardless of the clever drafting which flirted dangerously with suppression of material facts, as stated above, their intention was to pretend that their petition was in the public interest, when it was not, but purely private interest which was evinced by each of them applying for and obtaining permits immediately after the said notification was published. Such litigations have been discouraged by the Hon'ble Supreme Court inter alia in the decision reported in AIR 2005 SC 540 [DATTARAJ NATHUJI THAWARE--v--STATE OF MAHARASHTRA AND OTHERS] and AIR 2006 SC 2643 [Kushum Lata--v--UNION OF INDIA AND OTHERS] to name but two of the catenae of decisions on the point. Plaintive wails of equity being undone do not lie comfortably in the mouth of such litigants. Besides, to claim equity one must do equity and it is not easy for us, in the teeth of the deprecatory observations contained in the order dated February 10, 2017 passed by a coordinate bench, as stated in paragraph 2 above, to hold that the conduct of the appellants in MAT 1433 of 2017 was equitable. We, therefore, forbear from showing any sympathy for such submissions which do not appeal to us nor bind us, since the equitable principles, if at all applicable to this case, would operate against one of the parties, and not the Court.
38. Since, therefore, both the appeals fail on all the points urged, we dismiss the appeals and uphold the quashing of the impugned reasoned order dated January 22, 2016, its correction by way of a corrigendum dated March 4, 2016, and the notification dated June 17, 2016 published in the Official Gazette on June 30, 2016, and direct that the appellant no.1 in MAT 1620 of 2017 being the State of West Bengal through its appropriate officer, preferably the Principal Secretary, Department of Transport, and if there is no Principal Secretary, then the Secretary, Department of Transport, considers and 31 disposes of the representation made by the appellants in MAT 1443 of 2017 as exhibited as Annexure P/3 to WP No.14545 (W) of 2015, after due inquiry as already directed by the order dated July 31, 2015 passed in the said writ petition, without giving any opportunity of being heard to any person, but after satisfaction of the conditions mentioned in Section 71(3)(a) read with Section 67(3) of the said Act of 1988, in the light of the notification dated August 2, 2004 published in the Official Gazette Extraordinary Part I on August 6, 2004 and in strict compliance therewith, and in compliance with the judgment in the case of Sujata Ganguly (supra), as expeditiously as possible, but positively within a period of three months from the date of communication of this order and give effect thereto. It is needless to mention that no effect can be given to any permit for stage carriages on the said routes issued after increase of fleet strength over and above those existing under the notification of August 2, 2004 published on August 6, 2004. This will, however, not prevent the appellants in MAT 1443 of 2017 and the added parties to apply afresh for permits if the fleet strength is increased after completion of the exercise mentioned above. This order shall also not prevent the appellants in MAT No.1443 of 2017 from seeking variation of their routes to ensure that they do not pass through the Central Business District of Kolkata and if any such representation is made, we are sure that the concerned respondent authorities will consider the same in accordance with law and pass necessary orders as expeditiously as possible.
39. The appeals therefore stand dismissed with the above directions. There shall be no order as to costs.
(PROTIK PRAKASH BANERJEE, J.) 32 DIPANKAR DATTA, J.:
1. I have read the draft judgment prepared by my learned brother Banerjee, J. While I agree with the reasons assigned by His Lordship for holding that the impugned notification dated June 17, 2016 issued under Section 71(3)(a) of the Motor Vehicles Act, 1988 (hereafter the Act), published in the Gazette on June 30, 2016, must perish together with the preceding order dated January 22, 2016 passed by the Principal Secretary, Department of Transport, West Bengal (hereafter the Secretary) and the corrigendum dated March 4, 2016 passed by the same authority, I wish to add a few words of my own.
2. From the factual narrative giving rise to these intra-court writ appeals, neatly delineated in the draft judgment, there could perhaps be little doubt that a group of transport operators masqueraded as public interest litigants and obtained an order from a coordinate Bench of this Court for consideration of a representation filed by them before the Secretary, projecting that public interest warrants more stage carriages on routes 30-C and 30-C/1, and ultimately were successful in persuading him to increase the fleet strength of stage carriages on such route(s) for their personal interest, much to the detriment and prejudice of all concerned including the inhabitants of Kolkata and its surroundings. It is intriguing that the level of assistance provided to the coordinate Bench from the side of the State Government, being the main respondent, was well below the desired level. Why the learned advocate for the State Government did not bring to the notice of the coordinate Bench that it was not a public interest litigation in the real sense of the term but a private interest litigation, is not explained.
3. Be that as it may, I am also appalled at the apathetic and indifferent manner in which the Secretary proceeded to pass the order dated January 22, 2016, since corrected by an order dated March 4, 2016, without taking the pains to look into all relevant records. In an age where each motorist struggles for space on roads in and around Kolkata, the area for vehicular movement of which does not exceed 6% of its total geographical area, the Secretary despite being put on guard by the Regional Transport Authority, Kolkata by its memo dated December 2, 2015 of there being a prohibitory Court order regarding increase of fleet strength in the Central Business District (hereafter CBD) of Kolkata as well as that of Howrah, permitted increase of stage carriages without even enquiring of such order, not to speak of applying his mind to it. Had the Secretary embarked upon some research work, he could have traced the decision of a previous coordinate Bench of this Court reported in 2008 (2) CHN 728 (Sujata Ganguly & Ors. vs. The State of West Bengal & Ors.), whereby an earlier policy decision of the State Government regulating grant of stage carriage permits by the Regional Transport Authorities, Kolkata and Howrah was upheld and clear directions issued in regard to implementation of such policy. If indeed the Secretary had no sufficient time to personally embark on a research, the officers and staff at his disposal could have been ordered to find out what exactly was the prohibitory Court order referred to by the Regional Transport Authority, Kolkata in its memo dated December 2, 2015. At the least, the author of such memo could have been consulted. Not having taken recourse to any such step, the Secretary proceeded to pass the order dated January 22, 2016 without taking into consideration a very relevant material, i.e., the decision of the coordinate Bench of the Court in Sujata Ganguly (supra) whereby the State Government's earlier policy decision regulating movement of vehicular traffic (stage carriages and other vehicles) contained in the Gazette notification dated August 33 6, 2004 received the stamp of approval together with the prohibition imposed in respect of entry/passage of stage carriages in/through the CBD of Kolkata. Learned brother Banerjee, J. has quoted paragraph 4 and 4.1 from the said decision. I, however, consider it relevant to reproduce below paragraphs 5 and 6 too in its entirety, which are equally important to lend support to the reasoning process that no further vehicle should be allowed to pass through the CBD of Kolkata, unless of course the road conditions, the motorable area, the population and the thick screen of smog caused by pollution drastically change for the better, by reason of expansion of roads, increase in motorable area by construction of flyovers, introduction of electric buses, etc., thereby allowing stage carriages other that those, which are presently authorized to pass through or touch the CBD of Kolkata, to so pass/touch. The relevant paragraphs from the said decision read as follows:
"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 Kolkata 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/BM-139/2004 dated 2nd 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 applications 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 34 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 a 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."
(bold in original)
4. The failure, neglect and/or omission on the part of the Secretary to consider the aforesaid decision as well as the policy decision contained in the notification dated August 6, 2004, in my view, renders the entire exercise of increasing the fleet strength on route 30-C and/or its sub- route, i.e. 30-C/1, including the order dated January 22, 2016 and the corrigendum dated March 4, 2016, vitiated by perversity. As would appear from the permits issued in favour of the appellants in MAT 1443 of 2017, the stage carriages while proceeding towards Santragachi (the terminus) from Hatiara have been authorised to ply along C.R. Avenue/S.N. Banerjee Road. To reach the terminus, the stage carriages have to enter/pass through the CBD of Kolkata, for, there is no other motorable road therefor. The same would be the case for the return journey. In order to reach Hatiara, the stage carriages have to pass through the CBD. It is clear as crystal that the Secretary took into consideration materials which were extraneous and failed to take into consideration germane materials and the orders passed by him are perverse. In view thereof, the orders dated January 22, 2016 and March 4, 2016 together with the notification dated June 17, 2016, since published in the Gazette dated June 30, 2016, have been rightly proposed to be quashed with which I whole heartedly agree.
5. As and way by clarification, it is observed that while complying with the order of the coordinate Bench dated July 31, 2015 passed in WP 35 14545(W) 2015, the competent authority may explore the possibility of granting permits in favour of the appellants in MAT 1443 of 2017 and other applicants for permits, similarly placed, for plying stage carriages between Hatiara and Santragachi by aligning the route in such manner that the stage carriages, if at all permits are issued, do not pass through the CBD of Kolkata and/or Howrah, which would be in consonance with the terms of the earlier policy decision contained in the notification dated August 2, 2004, since published on August 6, 2004.
6. The appeals shall stand disposed of in the manner proposed by my learned brother Banerjee, J.
(DIPANKAR DATTA, J.)