Calcutta High Court (Appellete Side)
Sk. Nizamuddin vs The State Of West Bengal & Ors on 2 September, 2011
Author: Aniruddha Bose
Bench: Aniruddha Bose
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W.P. No.9856(W) of 2011
13 02.09.2011
with
C.A.N. 6564 of 2011
KC
Sk. Nizamuddin
Vs.
The State of West Bengal & Ors.
Mr. D. Saha Roy.
... for the petitioner.
Mr. M.M. Das,
Mr. Sk. Samim Akhter.
... for the respondent no. 6.
Mr. S. Banerjee.
... for the State.
The writ petitioner is the holder of a permanent stage carriage permit in the inter regional route between Barabazar in the district of Purulia and Kolkata. The respondent no. 6 is also in the same trade and the terminal points of the route in respect of his stage carriage permit are Santaldih and Kolkata. There was change of route alignment, however, under which the respondent no. 6 was permitted to cover Bandwan and certain parts of the district of Bankura before reaching Kolkata. The complaint of the petitioner is that this change of alignment brought 2 the route alignment of the private respondent substantially close to his own route alignment and such alignment was done in violation of the provisions of Section 80(3) of the Motor Vehicles Act, 1988. The case of the petitioner is that the alignment permitted far exceeds the limit of 24 K.Ms. postulated in the aforesaid provision. The writ petitioner had earlier made a complaint before the authorities and on the allegation that the authorities were not taking steps, a writ petition was filed which was registered as W.P. No. 1270 of 2009. This writ petition was disposed of by an Hon'ble Single Judge of this Court with the following direction:
"Consequently, this Writ Petition is disposed of and the matter is remanded to the Secretary, State Transport Authority, to look into the grievances of the Petitioner and take a decision thereon in accordance with law after giving an opportunity of hearing to all the persons that may be affected including the Respondent No. 5 who is represented by Mr. Rameswar Bhattacharya, learned Counsel. Such a decision should be taken within a period of 4 weeks form the date of receipt of a copy of this Order and the same be communicated to the Parties within a period of 2 weeks thereafter."
In pursuance of this order, the Secretary, State Transport Authority, West Bengal examined the matter upon giving opportunity of hearing to the rival operators and in the order passed on 25th March, 2010 it was inter-alia observed and directed:-
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"In this connection, it is mentioned that in forwarding instruction involving W.P. No. 1270 of 2009 - Sk. Nizamuddin-versus- State of West Bengal - Deputy Secretary, S.T.A., W.B. has indicated in the said instruction dated 27.01.2010 that following the order of the Hon'ble High Court, Kolkata, the said alteration has been suspended till final disposal of the matter. Sri Mukherjee has been advised to follow his previous route alignment till the final disposal of the case and the copy of the Instruction has duly been sent to him on 27.01.2010.
In this connection, it would not be incongruous to mention that Shri Mukherjee is found to be in the habit of misleading the authority very often and always tries to confuse things and befool the authority only to serve his narrow interest. It has been reported that the vehicle No. WB-19A/3967 covered by S.T.A. Permit 231/04(I/R) on the route Santaldihi to Kolkata had been covered under permit of Secretary, R.T.A., Bankura - P.St.P. No. being 387/99- 2000. And it had also been covered under temporary permit No. - 881/2009-2010 on the route - Durgapur to Mukutmanipur via Beliatore, Bankura.
From the hearing taken in this regard and from available documents, it is clear that malicious intention of Sri Mukherjee is at work behind his action of getting order on diversion which cannot be considered and the report submitted on his behalf is totally mischievous and a fake one. He is to follow strictly the original route alignment."
In this writ petition, the complaint of the petitioner is that the concerned Regional Transport Authorities are not taking any steps to ensure compliance of the order of the State Transport Suthority (S.T.A.) and the respondent no. 6 continues to violate the order of State Transport Authority, West Bengal. In substance, the prayer of the petitioner is for implementation of the order passed by the Secretary, State Transport Authority, West Bengal on 25th March, 2010.
Appearing for the respondent no. 6, Mr. Das, learned Counsel has raised a preliminary objection on 4 maintainability of this writ petition. The objection is that the writ petitioner being a rival operator and the prejudice alleged to be suffered by him by the act complained of being commercial loss, in view of the ratio of the decision of the Supreme Court in the case of Mithilesh Garg Vs. Union of India reported in AIR 1992 SC 443, he does not have legal right to maintain this writ petition. A large body of authorities have been relied on by Mr. Das in support of his submissions. These are Rajinder Kishan Gupta & Ors. Vs. Union of India & Ors. [(2010) 9 SCC 46], State of Manipur & Ors. Vs. Y. Token Singh & Ors. [(2007)5 SCC 65], Sanjit Chakraboty Vs. The State of West Bengal & Ors. [AIR 2007 Cal 252] and an unreported judgment of this Court in the case of Shyamal Mukherjee Vs. State of West Bengal & Ors. (W.P. No. 1261 of 2009) delivered on 17th March, 2010. The first two decisions of the Supreme Court have been relied on by Mr. Das in support of his submission that to maintain a writ petition, the petitioner has to demonstrate breach of his subsisting legal right. The Division Bench judgment of this Court in the case of Sanjit Chakraboty (supra) has been cited by Mr. Das to substantiate his argument that commercial loss to rival operator does not create any 5 legally enforceable right, even if the act complained against may be an illegal act.
Main case of Mr. D. Saha Roy, learned Counsel for the petitioner is that on the same complaint, the writ petitioner had moved an earlier writ petition (i.e. W.P. No. 1270 of 2009) and the respondent no. 6, who was a party to the aforesaid proceeding did not raise any objection as regards maintainability of that writ petition on the ground of the petitioner therein not having locus standi. Relying on a judgment of a Constitution Bench of the Supreme Court in the case of Devi Lal Vs. S.T.O. (AIR 1965 SC 1150), he argued that it is not open to the private respondent to raise this question in this proceeding after accepting the judgment of this Court in W.P. No. 1270 of 2009.
Mr. Bandopadhyay, learned Counsel appearing for the State-Respondents refuted the allegation of any inaction on the part of the State. His submission is that the Transport Department is taking stepsagainst the alleged offender and two show-cause notices have already been issued. Mr. Das, however, disputes service of the main order on his client.
The authorities are uniform on the point, so far as 6 Motor Vehicles Act, 1988 is concerned that rival operators cannot come to the Writ Court with a complaint against illegal plying of transport vehicles. The ratio of the judgment of this Court in the case of Sanjit Chakraborty as well as the unreported judgment of this Court to which I have referred to earlier clarifies this position of law o the preliminary point. In this perspective, for adjudication of the present proceeding I shall have to examine as to whether the respondent no. 6 has forfeited his right to raise this issue in this proceeding, having accepted the verdict of this Court in W.P. No. 1270 of 2009. In that writ petition also, substance of complaint was against illegal diversion of route alignment and from the orders annexed to the writ petition, there is no indication that any objection on maintainability of the writ petition was raised. It is also the admitted position that the decision of this Court in the said proceeding was neither appealed against nor reviewed.
In my opinion, however, the earlier writ petition and the present one cover different fields. In the earlier writ petition, the writ petitioner wanted his complaint to be examined by the Transport Authorities. I do not think there is any bar on rival operators complaining before the 7 Transport Authorities about illegal plying of vehicles by other operators. The judgment of the Supreme Court in the case of Mithilesh Garg (supra) prohibits initiation of writ proceeding to require the Transport Authorities to take steps against erring operators at the complaint of trade rivals. So far as the first writ petition is concerned, what the Court examined and decided was that the Transport Authority should decide on the complaint of the petitioner. The Court directed the Transport Authorities to do so. But once the Transport Authorities have taken a decision, in my opinion, further action on the part of the complaining operator to seek enforcement of the order of the Transport Authority is impermissible. After such an order is passed, its implementation would be within the domain of the administration. No Writ of Mandamus would lie requiring the Transport Authorities to implement its own order at the instance of operators who claim to be abiding the law. This being the position of law, I sustain the preliminary objection raised by Mr. Das and dismiss this writ petition on the ground that the same having been brought by an existing operator with allegation that a rival operator is not plying his vehicle adhering to law, this writ petition is not 8 maintainable.
There shall, however, be no order as to costs. There is a connected application being C.A.N. No. 6564 of 2011 by certain commenter supporting the respondent no. 6. Having already held that the writ petition is not maintainable, occasion does not arise to examine this application. The same shall stand disposed of accordingly.
Urgent photostat certified copy be given to the parties expeditiously, if applied for.
(Aniruddha Bose, J.)