Calcutta High Court (Appellete Side)
Mahabir Prasad Saroagi & Ors vs State Of West Bengal & Ors on 15 July, 2016
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar
W.P. 11477(W) of 2015
Mahabir Prasad Saroagi & Ors.
-vs.-
State of West Bengal & Ors.
For the Petitioners : Mr. Arabinda Chatterjee
Mr. Arkadipta Sengupta
For the Respondent
Nos. 4 to 10 : Mr. N. I. Khan
For the Respondent
No.11 : Mr. Sattwik Bhattacharya
Mr. Manoj Kumar Mondal
For the State : Mr. Amal Kumar Sen
Mr. Bhaskar Nandi
Heard on : 02/03/2016
Judgement on : 15/07/2016
Subrata Talukdar, J.: The short point of challenge in this writ petition are to the resolutions taken by the Regional Transport Authority, Dakshin Dinajpur (for short referred to only as the RTA or, RTA, DD) dated 08.09.2014, 27.01.2015 and 23.05.2015 granting several State carriage permits on the route Balurghat Bus Stand to Hilli.
Sri Arabinda Chatterjee, Ld. Senior Counsel appearing for the petitioners argues that the offer letters issued by the RTA, DD are indiscriminate. Such offer letters are in clear violation of the directions of the Hon'ble Supreme Court in the judgement of Mithilesh Garg & Ors. vs. Union of India & Ors. reported in 1992 (1) SCC 168. Particularly relying on paragraph 15 of In Re:
Mithilesh Garg (supra), Sri Chatterjee argues that the RTA must restrain itself from granting permits arbritrarily and mechanically without considering the possible effect of the wholesale grant of permits on overcrowding of the route, congestion on the road, pollution hazard and such other allied aspects.
Sri Chatterjee therefore submits that the restrictions noticed at paragraph 15 of In Re: Mithilesh Garg (supra) have been also noticed by the Hon'ble Single Bench of this Court In Re: Sandip Kumar Charan vs. The State of West Bengal & Ors. reported in 2003 CWN 647. Sri Chatterjee also clarifies the judgement of the Hon'ble Special Bench of this Court In Re: Prabhat Pan & Ors. on the ground that since the permits are being offered by the RTA, DD in violation of paragraph 15 of In Re: Mithilesh Garg (supra), following the ratio of the judgement of the Hon'ble Special Bench the petitioners being the existing operators have the locus to maintain the present writ petition on the strength of the proposition that the law laid down by the Hon'ble Apex Court In Re: Mithilesh Garg is now the law of the land under Article 141 of the Constitution of India.
Sri Chatterjee points out that the self-same RTA, DD was pleased to record a resolution dated 01.10.2003 in respect of the same route Raiganj to Hilli which overlaps the present route Balurghat to Hilli on the ground that the route is overcrowded. Ld. Senior Counsel for the petitioners therefore questions the deviation in the approach of the RTA vide the resolutions impugned dated 08.09.2014, 27.01.2015 and 23.05.2015 suddenly deciding to grant permits en masse to new operators. Sri Chatterjee further points out that it is not the mandate of the statute that any RTA would close its mind to the ground realities prior to grant of permits in respect of a particular route.
Appearing for the State respondents, Sri Amal Kumar Sen, Ld. Senior Government Advocate strenuously submits as follows:-
a) That the Motor Vehicles Act, 1988 (for short the MV Act or the 1988 Act or the MV Act, 1988) is a complete code by itself. The grant of permits by the RTA is regulated under the MV Act and, particularly section 71 (3 )(a), 74 (3)(a), 80(1) and 80(2) thereof.
Sri Sen argues that there are no other restrictions on the RTA to issue permits except the provisions of the above noted four sections with their sub-sections of the MV Act.
b) Analyzing the provisions of the above noted sections of the MV Act, Sri Sen argues that in cities enjoying a population of more than 5 lakhs the number of permits that can be issued on a particular route cannot exceed the notified number. Sri Sen also points out that no reasons are required to be shown by the RTA while granting the permits and reasons are required only when permits are refused. The statute also makes it clear that "ordinarily" a permit cannot be refused.
c) Ld. State Counsel therefore makes the primary point that the arguments advanced by Sri Chatterjee stand beyond the statutory prescription. Being a quasi - judicial authority the RTA, DD must act within the four corners of the statute.
d) Sri Sen makes the next point that this Court is required to examine whether paragraph 15 of In Re: Mithilesh Garg (supra) is the ratio decidendi or, only the obiter dicta of the said judgement. Sri Sen argues that paragraph 15 of In Re:
Mithilesh Garg is only the obiter dicta and, actually the Hon'ble Supreme Court In Re: Mithilesh Garg (supra) decided in favour of the liberalized policy of granting permits brought into force by the MV Act, 1988. Therefore, Sri Sen submits that paragraph 15 of In Re: Mithilesh Garg cannot come to the assistance of the petitioners.
e) Sri Sen therefore makes the derivative point following the ratio of the Hon'ble Special Bench In Re: Prabhat Pan & Ors. vs. State of West Bengal & Ors. reported in 2015 (2) CHN 185 (supra) that the petitioners as the existing operators have been unable to demonstrate a right founded on a statute to maintain the present writ petition. Sri Sen argues that the cause-of- action espoused by the present petitioners is actuated by economic factors and, a writ petition is therefore barred as held by the Hon'ble Special Bench In Re: Prabhat Pan & Ors. (supra).
f) Relying on the decisions of this Hon'ble Court In Re: 1993 (2) CLJ 229 (at paragraph 34) and In Re: 1994 (2) CLJ 235 (at paragraph 8), Sri Sen submits that both the decisions have underscored the point that consideration of the ground of congestion on the route is foreign to the exercise of jurisdiction by the RTA. Sri Sen elaborates by arguing that under the old MV Act, 1939 the objection of the existing operators was required to be considered by the RTA prior to granting permits. However, under the present MV Act, 1988 the requirement of inviting objections has been removed and, such has been upheld In Re: Mithilesh Garg (supra).
g) On the point of ratio decidendi of a case Sri Sen relies upon the decisions reported in 2011 (5) SCC 708 (at paragraph 32) and 2013 (15) SCC 414 (at paragraphs 32 to 38).
Sri Sen also relies upon the judicial authority of the decision reported in 2001 (8) SCC 437 (at paragraph 32) on the point as to the purported reasons for refusing a permit alternatively, the purported restrictions on the grant of a permit.
Sri Sen concludes on the note that the RTA, DD is not guilty of any statutory infraction in respect of its impugned resolutions dated 08.09.2014, 27.01.2015 and 23.05.2015. Appearing for the private respondent numbers 1 to 10, being the grantees of the permits by the RTA, DD, Sri N.I.Khan, Ld. Counsel reiterates the submissions advanced by Ld. State Counsel. Sri Khan points out that with reference to the decisions reported in 1994 (2) CLJ 235 and 2015 (2) CHN 185, not only the ground of congestion on the route is not available to the petitioners but, in effect by claiming an economic interest qua the route in issue the present writ petition is not maintainable.
The private respondent no.11 is represented by Sri Sattwik Bhattacharya, Ld. Counsel who emphasises the fact that under both the statutory provisions of the MV Act, 1988 and the law settled by the Hon'ble Special Bench, no writ petition can lie challenging the resolution of the RTA, DD offering the permits.
Having heard the parties and considering the materials on record as well as the law on the point placed by the Ld. Counsel for the parties, this Court arrives at the following findings:-
A) That Section 80 of the 1988 Act, inter alia, provides that an application for permit may be made any time and, neither the RTA nor the STA shall "ordinarily" (emphasis supplied) refuse to grant an application for permit. Section 80 further provides that in case a permit is refused then reasons for its refusal shall be furnished to the applicant along with an opportunity of being heard in the matter. It is also provided by Section 80 that restrictions shall operate with regard to any variation or extension of a permit granted.
Section 81 of the 1988 Act provides for the expiry of a permit and, the procedure for renewal of a permit.
Section 72 of the 1988 Act provides for grant of a stage carriage permit. It is further provided under Section 72 that the RTA, upon deciding to grant a stage carriage permit, may attach to the permit one or more of the conditions specified under Section 72(2) of the 1988 Act. Similarly, under Section 74 of the 1988 Act a contract carriage permit may be granted subject to one or more of the conditions specified under Section 74(2) of the 1988 Act.
Section 71(3) (2) provides that the State Government shall, if so directed by the Central Government, notify the limit to the number of stage carriages generally or of any specified city routes with a population of not less than Rs. 5 lakhs.
Vide Section 71 (3) (d) the RTA shall consider an application for grant of permit only if certain conditions are satisfied namely, financial stability of the applicant, satisfactory past performance as a stage carriage operator, if any, and, any other matter to be prescribed by the State Government. B) Reading the above noted provisions of the 1988 Act along with their rules, this Court finds prima facie merit in the submission of Ld. State Counsel that it is not the norm that while granting permits the RTA is required to specify reasons in every (emphasis supplied) case. The submissions of both the Ld. State Counsel as well as the Ld. Counsel for the private respondents are also found prima facie meritorious having regard to the above noted provisions of the 1988 Act to the effect that only in the event a particular route is notified by the State Government in towns having a population of not more than 5 lakhs, the number of stage carriages on such routes can be limited.
C) However, at the same time this Court notices that Section 80 of the 1988 Act uses the word "ordinarily". The word "ordinarily" is defined in the classic text The Major Law Lexicon by P Ramanatha Aiyar (revised and enlarged 4th Edition 2010) as follows:-
"Ordinarily' means habitually and not casually. It cannot obviously mean 'always'. The plain and popular meaning of the word 'ordinarily' means usually, normally and exceptionally as contrasted with extraordinarily. In Re Putta Ranganayakulu, AIR 1956 Andhra 161, 167, 173 (FB)."
D) The word "ordinarily" as defined above must now be read in the context of the provisions of the 1988 Act empowering the RTA to grant either stage carriage or contract carriage permits subject to any or more of the following conditions. This Court therefore cannot be oblivious to the requirement of the RTA to furnish a minimum evidence of application of mind while discharging its statutory functions under the 1988 Act in particular fact situations where such application of mind may be necessary. The word "ordinarily", as included in Section 80 of the 1988 Act, must therefore mean that not in every case there is a requirement to supply reasons but, at the same time, it is an obligation on the part of the RTA to indicate application of mind in cases where such application of mind is called for.
E) This Court therefore notices that while In Re: Mithilesh Garg (supra) primarily upholds the liberalized permit policy introduced by the 1988 Act and its rules, at paragraph 15 thereof carries the proviso that several criteria such as road conditions, social status, viability of small operators, conditions of hilly routes, fuel availability and pollution control are required to be within the radar of the RTAs while filtering applications for grant of permits. The obvious inference therefore cannot be ruled out that the conditions specified by the Hon'ble Apex Court at paragraph 15 of In Re: Mithilesh Garg (supra) must be read purposively in the backdrop of the attachment of conditions vested in the RTAs/STA by virtue of Sections 72 and 74 of the 1988 Act. F) This Court therefore further notices that while the issue of congestion in a non-notified route may not be binding on the RTAs/STA, however the decision In Re: Sandip Kumar Charan (supra) contemplates a situation where taking notice of the parameters at paragraph 15 of In Re: Mithilesh Garg (supra) the RTA, DD was required to show a minimum application of mind while considering applications for permits. The obligation to demonstrate such minimum application of mind becomes all the more necessary since the RTA, DD had, on a previous occasion in the year 2003 resolved to refuse permits for the same route in issue upon discussion of the relevant factors.
G) It is by now trite law that a judicial review shall lie to the extent that the action of a State Authority is found not to be valid for a discernible reason.
H) In the backdrop of the above discussion this Court is persuaded to hold that while in ordinary circumstances the RTA or the STA may not be required to give reasons for grant of a permit, in particular fact situations such as in the facts of the present case, the RTA is required to demonstrate the minimum application of mind while deciding in favour of granting a large number of permits on the route. I) Since this Court is of the above view that in particular fact situations the RTA/STA may be required to exhibit a minimum application of mind, the maintainability of the present writ petition stands not negated applying the principles enunciated In Re: Prabhat Pan & Ors. (supra). For the above reasons the impugned resolutions of the RTA, DD are kept in abeyance. The RTA, DD is directed to take a decision afresh in the light of the above observations as expeditiously as possible suited to the calendar of its Board meetings.
WP 11477(W) of 2015 stands accordingly disposed of. There will be, however, no order as to costs.
Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)