Calcutta High Court (Appellete Side)
Satyajit Datta vs The State Of West Bengal & Ors on 12 July, 2018
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present : The Hon'ble Mr. Justice Protik Prakash Banerjee
W.P.No.20401(W) of 2016
Satyajit Datta
-vs-
The State of West Bengal & Ors.
Mr. Subhrangsu Panda ....for the petitioner
Mr. Amal Kumar Sen
Ms. Ashima Das (Sil)
Mr. Khairul Alam ...for the State
Heard on : July 12, 2018
Judgment on : July 12, 2018
Protik Prakash Banerjee, J.:
In this writ petition the question involved are similar to those matters which are in today's list as item nos.8, 9 and 11 of which I have already passed the similar judgments and order by disposing of the writ petitions.
When this matter is called on Ms. Nahida Parveen appears and submits that Mr. Khairul Alam is empanelled as a group 'B' advocate and he is not entitled to have any junior or senior but must appear by himself. However, similar questions have already been decided by me as above, I do not want to keep this matter lingering for the cosmetic purpose for the record of appearance of Mr. Alam. On the other hand, the learned Additional Government Pleader, Mr. Amal Kumar Sen, who is expert in motor vehicles matters, has represented the case of the respondents in the earlier matters and has done so exclusively. If I may add Mr. Sen I think that the interests of the State of West Bengal shall be better served if at the direction of the Court he is asked to assist the court on behalf of the State of West Bengal with a junior of his choice, I do so ask him.
The learned Government Pleader is requested to regularize his appointment along with a junior of his choice. Mr. Sen has gone through a copy of this writ petition here and now and it appears to him also on this brief inspection that apparently the cases are similar.
Accordingly, the judgment I have gone in items nos.8, 9 and 11 of today's supplementary list was governed and present is allowed. A separate order is, therefore, recorded hereunder:
1. A short point involved in this petition under Article 226 of the Constitution of India is whether the writ petitioner is liable to make an application in a prescribed form and pay the fees prescribed in Schedule A to the West Bengal Motor Vehicles Rules, 1989 for his application for change of alignment which is to say, altering the route or area covered by his contract carriage permit for plying an auto-rickshaw.
2. Admittedly, the position is that the petitioner had a contract carriage permit as aforesaid for plying his auto-rickshaw within a specified area, and that he made a representation for being allowed to change or alter the said area by way of change of alignment. This was on the ground of financial difficulties caused by battery operated contract carriages plying in the area, which affected his revenue which he apprehended might result in the auto-rickshaw, subject to a hypothecation/finance agreement, being repossessed. It is not disputed that this was the only ground made out in the application. However, he did not pay any fees for the same nor applied in any prescribed form. His contention is that there is no specific rule nor any statutory provision specified in Schedule A to the West Bengal Motor Vehicles Rules 1989 which would require him to pay any fees.
3. To appreciate the contention of the writ petitioner, section 80(3) of the Motor Vehicles Act, 1988 is required to be considered: -
"(3) An application to vary the conditions of any permit, other than an temporary permit, by the inclusion of a new route or routes or a new area or by altering the route or routes 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 kilometers 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. Mr. Panda appearing for the writ petitioner would submit that sub-section (3) of section 80 has two parts - the first part pertains to all permits other than a temporary permit and includes a permit for a contract carriage for auto-rickshaw; while the second part separated from the first part when the use of the words "or in the case of the stage carriage permit" relate only to stage carriage permits. Therefore, according to him, the statutory mandate of treating an application under sub-section (3) as an application for grant of a new permit would apply only to stage carriages.
5. Mr Panda's second submission is that in Schedule A, while fees have been specified in case of application for grant of permit, renewal of permit under rule 126(1) Item No.19 and also prescribed for grant or renewal of permit other than temporary and special permits in Item No.24 pertaining to rule 127 including clause (c) of Item No.24 relating to auto-rickshaw plying as contract carriage, no specific rule exists or no specific fee has been prescribed for an application for change of alignment of an auto-rickshaw which is being plied under a contract carriage permit.
6. In answer to Mr Panda's submission, Mr. Sen, learned Additional Government Pleader assisted by Ms Das (Sil) appearing for the State, submits that while till the latter half of 2005 no express provision had been made by the State of West Bengal to give effect to the statutory mandate under section 80(3) of the 1988 Act, by a notification dated October 5, 2005 with effect from October 20, 2005 Entry 19 of Schedule A had been substituted such that IV of the said Entry pertaining to rule 126(1) was inserted to prescribe and fees of Rs.500 for curtailment/extension/ diversion of route. So there exists, according to him, a specific rule prescribed the fees in terms of section 80(3) of the Act. He further submits that rule 126 of the 1989 rules does not require to be separately amended to include this provision in it. Only a reference to an application for such alteration of route of alignment or area in Schedule "A" is sufficient in view of the provisions of the statute. He submits that section 80(3) is one continuous sentence and the words "any permit" include a contract carriage permit and the case of a stage carriage permit has been expressly mentioned in case of a stage carriage but the last clause pertains to both contract and stage carriages. The material difference is the number of trips required in a stage carriage, rather than a continuing contract. He submits that the words in the last clause of sub-section (3) being "shall be treated as an application for the grant of a new permit" apply also to alteration of alignment of contract carriage and permits thereof.
7. Mr. Sen also points out that in view of rule 127, which is broader, and gives effect to the scheme envisaged by the executive to work out section 80(3), no separate provision is required to be made in rule 126. In other words, since the rules are framed to give effect to the statutory provision, when the statute provision is clear, it does not have to be repeated again in the rules as long as sufficient reference has been made to the contingency for which fees shall be payable. According to him, since grant or renewal of permits or the grant of a new permit refers to section 80(3) whose interpretation he submits ought to be as above, this is sufficient for attracting the payment of fees.
8. In reply, Mr. Panda submits that the second proviso to sub-section (3) of section 80 of the 1980 Act clearly mentions that the variation is allowed only on satisfaction that it will serve 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. He would submit that this means that the authorities are not granting a separate permit. He would submit further that if the separate permit is not being granted in cases of a variation mentioned in the two clauses of the second proviso, then it cannot be called a new permit. If it cannot be called a new permit, then he says the application for alteration of the route or area cannot constitute a new permit. In other words, if alteration of a route, or alignment or area does not change the termini (both the starting and ending points) and the distance covered by the variation or extension does not exceed 24 kilometers in terms of the second proviso to Section 80(3), and is thus not a separate permit then it cannot be a new permit either, since it continues to be the same permit.
9. However, this particular argument suffers from a fallacy. The second proviso applies in case of variation of the termini with a condition as to the length of the route or in case of extension but is controlled by the last part of the second proviso which shows that it is only in respect of variation or extension of the original route and not the "area".
10. In the affidavit-in-opposition the State has a taken an express point that neither was the application of the petitioner in the prescribed form nor was it accompanied by the prescribed fees for which such application could not be processed.
11. The petitioner in this case has applied for variation of the area. The legislature in its wisdom has made separate provisions and has knowingly made the second proviso with its mandate for recording satisfaction that it is not expedient to grant a separate permit in respect of the original route and not the area. Therefore, in case where a variation in the route being an alignment of a route is sought, perhaps the submission of Mr. Panda would have been apposite, but not in case of change of area which too is a species of alteration of the terms of the permit, and in such case, it is not protected from the ambit of a "new permit". In the instant case, where the application is for change of alignment to the extent of variation of the area, such a submission cannot be tenable. I say this because in my opinion, since a Proviso carves out an exception to the main section, it must be strictly construed to see that by reason of the proviso the section itself is not altered but only if the facts envisaged in the proviso exists on the face of the records, the consequence of the main section is relaxed, exempted or altered for that particular fact.
12. In support of the other ground Mr. Panda has relied upon the judgement of a coordinate bench of this court, being an unreported judgement in W.P. No.5007 (W) of 2013 decided on June 6, 2013, which is available on the High Court website and whose Indiankanoon version has been cited. In the said judgement, His Lordship has been pleased to hold as follows: -
"Although Section 80(3) of the Act contemplates that an application, inter alia, for curtailment of the route specified in the permit, meaning thereby a variation of the route, shall be treated as an application for a new permit, variation of the route could be granted if such variation would serve the convenience of the public and transport authority is satisfied in this behalf, and in such eventuality it would not be expedient to grant a separate permit in respect of the original route as varied. The said provision is clear that although a prayer for curtailment is to be treated as an application for grant of a new permit, there would be no need to issue a separate permit if satisfaction regarding convenience of the public is reached. What the notification dated 02.08.2004 prohibits is the issuance of a new permit for an auto rickshaw operating within the KMA. Grant of permit and issue of permit are distinct acts. Since the petitioner has not prayed for extension of the route so as to enter the jurisdiction of the KMA but has been operating her auto rickshaw on a route which is within the KMA and curtailment has been prayed for, the prohibition in clause 4 of the notification dated 02.08.2004 is not attracted in the facts and circumstances of the present case. The order of refusal of the petitioner's application stands set aside."
13. Another judgment has been fairly cited by the Learned Advocate for the petitioner. This is the case of Sri Chittaranjan Das--v--The State of West Bengal and Others, being WP No.437 of 2010 decided on May 10, 2010. There a coordinate bench has been pleased to hold as follows: -
"However, an application for curtailment would have to be for all practical purposes treated as a combined application for surrender of the old permit and grant of new permit on the route as curtailed. No operator can be completed to continue to operate on any particular route. An operator might even surrender his permit. The application for curtailment, which, as observed above, would have to be treated as a new permit, would have to be examined upon application of the principles for grant of new permit."
14. This judgment referred to in paragraph 13 above is diametrically opposed to the decision of the coordinate bench. It was decided prior to the judgment referred to in paragraph 12 above. However, the decision in the case referred to in paragraph 12 above does not refer to the earlier judgment of the coordinate bench as in paragraph 13 above.
15. Being coordinate benches, both ought to bind me, but I find that the decisions in both the cases would have been applicable only if the application was for curtailment of the route. As demonstrated above, the petitioner's application is for alteration of the area and not for curtailment. Therefore, with great respect to the interpretation made by the coordinate benches, the judgments referred to in paragraphs 12 and 13 of this judgment do not apply and are distinguished on the basis of the discussions and my findings on the ground taken as in paragraph 11 of this judgment. This of course leaves it open for a larger bench to decide whether curtailment amounts to a new application for a new permit or not, since the coordinate benches do not agree on this point.
16. Of a little more moment is the judgement in a case decided by a coordinate bench in W.P. No.20112 (W) of 2007 In Re: Anwar Mallick, but the copy of the judgment which has been cited is from Indian kanoon without the particulars of the short cause title and without the full reference of any equivalent citation. It is not available on the High Court website. However, I have been impelled to consider it because of the following paragraphs in that judgement which the petitioner has relied upon: -
"In this writ application the petitioner has challenged the decision of the Regional Transport Authority, Bankura, disallowing the application of the petitioner for extension of the route delineated in the permit granted to the petitioner by a further 12 K.Ms. **************************************************************** In the instant case however, the application is not for new permit but for extension of permit up to an area within the limit of 12 K.Ms. The application is really for variation of permit. Before granting such variation the State Transport Authority or the Regional Transport Authority as the case may be is required to satisfy itself that the variation will serve the convenience of the public and that it would not be expedient to grant a separate permit in respect of the original route as so varied or extended or any part thereof. If extension does not serve the convenience of the public extension might be declined. However in the instant case, there is no finding that the extension as prayed for by the petitioner will not serve the convenience of the public."
17. This judgement was on an issue regarding extension of route, and not of area. Therefore, by reason of the discussion in paragraph 11 of this judgement and as I have held in paragraph 15 of this judgement, it cannot be an authority for the proposition that an application for variation of the area would not be treated as an application for a new permit. The difficulty arises from the third last paragraph of the copy of the judgement referred to in paragraph 16 of this judgement, being the second paragraph as extracted. There a coordinate bench has proceeded on an assumption that the "application is not for a new permit but for extension of permit up to an area within the limit of 12 K.Ms" though the very first paragraph of that judgement says it is for extension of the route, and not the area. There is no finding reached in that judgement that extension of route and extension of area mean the same thing, whether for the purposes of Section 80 of the Act of 1988 or for any other provision. The reference to 12 K.Ms is not to be found in Section 80 of the Act of 1988 unless it is an inference drawn from the phrase "shall not exceed 24 kilometers" vis-à-vis "termini" - I mean unless I am to understand the judgment as having held that the distance cannot exceed 12 K.Ms from the beginning and 12 K.Ms from the end point, which is to say, the two termini. It does not appear on its face to have held it. While it is an authority for the proposition what the authority is to satisfy itself about, before granting variation, instead of issuing a separate permit, it cannot be held to be an authority for the proposition that every application for variation of an area within 12 K.Ms (not directly found in the statute) is to be deemed not to be an application for a new permit. I say this, with respect, because that proposition did not fall for decision - what fell for decision was whether the authority was justified in rejecting an application for extension of the route delineated by the permit granted to him by a further 12 K.Ms when the facts showed that it was within 12 K.Ms and when no arguments were advanced or the question fell for decision as to whether extension of an area and extension of a route were the same. It is trite that when a question was neither argued nor fell for decision nor was expressly decided, it cannot operate as a ratio decidendi or binding precedent upon a coordinate bench. I rely upon M/s Goodyear India Ltd--v--State of Haryana and Another reported in AIR 1992 SC 781 for the above proposition.
18. If I may take an example - where an existing operator seeks such an alteration of a route which is beyond the scope of the applicable proviso, and the transport authority is satisfied that it is expedient in the public interest to grant a separate permit, then a separate permit is granted to the operator concerned. Where it is satisfied that it is not expedient to grant a separate permit in respect of the original route, and the variation/alteration/extension sought is within the limits permitted by the statute and its provisos, in case of a route, it grants a new permit. In case of alteration of the area, when an application is made for alteration of the area, there is no scope of submitting that since it is not a separate permit, it cannot also be a new permit, since the clear words of the statute make it apparent that the question of separate permit is in respect of the original route, and not the area.
19. As such I respectfully hold that the judgment referred to in paragraph 16 of this judgment is not an authority for the proposition argued on behalf of the petitioner which binds me and can be distinguished on the facts since it was not on the question of variation of the area of the permit.
20. In such view of the matter, I uphold the submission of Mr. Sen that without having applied for the change or alteration in the alignment/area covered by the original contract carriage permit in prescribed form along with the prescribed fees, the application of the writ petitioner cannot be processed and was therefore not processed. The representation made was not competent in the eye of law. Besides, the representation was on a ground which is not based on convenience of the public, but of private economic difficulty of the operator. Such a ground may not be what the legislature envisaged or intended ought to be a ground for allowing such prayer, even if made in due form and with prescribed fees.
21. However, I dispose of the writ petition making it clear that if the petitioner makes an appropriate application in prescribed form with the prescribed fees after compliance of all formalities, on lawful grounds, the respondent transport authority shall duly consider and dispose of the same in accordance with law after giving the petitioner adequate opportunity of hearing as expeditiously as possible, but not later than one month from the date of filing such application in such manner with such fees.
22. In view of the substantial question of law raised by Mr. Panda and the decision as above, the parties shall bear their own costs.
Certified website copy of this order, if applied for, shall be given to the parties on the usual undertaking on an urgent basis.
(Protik Prakash Banerjee, J.) Subrata