Calcutta High Court (Appellete Side)
Tapan Kumar Saha vs The State Of West Bengal & Ors on 10 July, 2009
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
In The High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present : The Hon'ble Mr Justice Jayanta Kumar Biswas
W.P.No.24427(W) of 2008
Tapan Kumar Saha
-vs-
The State of West Bengal & Ors.
Mr Rameshwar Bhattacharyya, advocate, for the petitioner. Mr Tarak Nath Ghosh,
advocate, for the State.
Heard on : July 10, 2009
Judgment on : July 10, 2009
The Court : The petitioner in this writ petition dated September 16, 2008 is
seeking a mandamus commanding the respondents to grant him a contract carriage
permit for plying his autorickshaw on the route Chandernagore Hospital - Bhadreswar Railway Station falling within the region of the Regional Transport Authority, Hooghly.
Seeking a permit he submitted an application dated September 29, 1999. Citing congestion and other grounds the transport authority rejected the application on September 25, 2000. Feeling aggrieved, he filed W.P.No.20688 (W) of 2000. By an order dated December 8, 2000 it was disposed of setting aside the decision and directing the transport authority to reconsider the application. By a decision dated January 29, 2003 the transport authority again rejected the application citing congestion and other grounds. The decision was challenged by filing W.P.No.11954 (W) of 2003. By an order dated January 13, 2004 it was disposed of setting aside the decision and directing the transport authority to consider the application once again.
Alleging non-compliance with the direction the petitioner filed a contempt petition. During pendency of the contempt petition he took out this writ petition. It has been submitted that the contempt petition is pending decision, and that this writ petition has been taken out for the reason that the contempt petition is not being heard.
The transport authority has filed an opposition dated December 11, 2008. In para.4(g) of the opposition it has stated that in view of a Notification No.3438-WT/3M- 139/2004 dated August 6, 2004 issued by the Government of West Bengal, it is not in a position to allow the petitioner's application for grant of permit, because the government order has said that no new permit shall be issued for autorickshaw within the Kolkata Metropolitan Area. There is no dispute that the route for which the petitioner wanted permit falls within the Kolkata Metropolitan Area.
The first question is whether this writ petition is at all maintainable. The application of the petitioner dated September 29, 1999 was to be reconsidered by the transport authority according to the order of this court dated January 13, 2004 made in W.P.No.11954 (W) of 2003. The admitted position is that the application has not yet been disposed of by the transport authority. Hence at the date this writ petition was taken out, there was no cause of action on which the petitioner could file it seeking the same relief that was one of the reliefs he sought in W.P.No.11954 (W) of 2003.
In W.P.No.11954 (W) of 2003 this court did not make any order commanding the transport authority to grant him permit. This court rather directed the transport authority to give a fresh decision in his application. Hence unless a fresh decision was given, in my opinion, he could not take out a fresh writ petition seeking a mandamus commanding the transport authority to grant him permit on the basis of his application dated September 29, 1999.
By filing this writ petition the petitioner has not only wanted to bypass the order of this court dated January 13, 2004 made in W.P.No.11954 (W) of 2003, but he has also attempted to reopen an issue that was one of the issues in W.P.No.11954 (W) of 2003. As is known, raising the same issue one cannot file successive writ petitions. I am, therefore, of the view that this writ petition is not maintainable.
Assuming that the writ petition is maintainable, I propose to examine the issue involved in it on merits. Mr Bhattacharyya, counsel for the petitioner, has argued that since the petitioner submitted his application at a date when the government notification dated August 2, 2004 published in the official gazette on August 6, 2004 was not in existence, the transport authority cannot say that in view of the notification permit cannot be granted to the petitioner.
Relying on my decision in Glaxo Smith Kline Plc. & Ors. v. Controller of Patents and Designs & Ors., 2006 (3) CHN 577, first upset by the division bench in Controller of Patents and Designs & Ors. v. Glaxo Smith Kline Plc. & Ors., 2007 (3) CHN 815 and then affirmed by the Supreme Court in Glaxo Smith Kline Plc. & Ors. v. Controller of Patents and Designs & Ors., 2008 (4) CHN 197, he has submitted that the petitioner's application submitted on September 29, 1999 is to be decided by the transport authority under the law that was existing at that date, and not by applying the government notification dated August 2, 2004 that was given no retrospective effect.
Appearing for the State Mr Ghosh has relied on the division bench decision of this court in State of West Bengal & Ors. v. Kalyan Chakraborty, 2006(1) CLJ(Cal) 377, and has said that the facts of that case are identical with the facts of this case. According to him, in the face of the division bench decision, the transport authority is fully justified in saying that in view of the government notification dated August 2, 2004 no permit can be issued to the petitioner, though he submitted application as back as September 29, 1999.
As to the division bench decision, Mr Bhattacharyya has said that it was given without considering the provisions of s.6 of the General Clauses Act, 1897, considering which the Supreme Court, affirming my judgment, held in Glaxo Smith Kline Plc. & Ors. that an application required to be considered by a statutory authority is to be considered only according to the law existing at the date the application is filed, and not by applying the law subsequently coming into force. According to him, the division bench decision relied on does not apply to the case of the petitioner.
In the division bench decision in State of West Bengal & Ors. v. Kalyan Chakraborty, the application for grant of permit to ply an autorickshaw on a route falling within the region of the Regional Transport Authority, Hooghly was filed on January 14, 2000. It was rejected. By an order dated June 5, 2000 the writ court directed its reconsideration. It was again rejected. By an order dated November 27, 2000 the writ court again directed its reconsideration. It was again rejected. By an order dated September 3, 2001 the writ court again directed its reconsideration. It was again rejected by a decision dated October 5, 2001. At last by an order dated April 11, 2005 the writ court directed grant of a permit. In the appeal it was contended that in view of the government notification dated August 2, 2004 there was no scope for granting a permit.
One of the questions before the division bench was whether the government notification dated August 2, 2004 was applicable to the case. It will appear from the facts of that case, briefly noted hereinbefore, that at the date the transport authority rejected the application for grant of permit and the writ petition questioning the resolution was filed, the notification dated August 2, 2004 was not in existence, though it had come into force before the judgment dated April 11, 2005 was passed by the single bench allowing the writ petition. It was contended that the notification, not giving any retrospective effect, could not be applied for any purpose whatsoever, especially when the application for permit had been filed long before the notification was issued.
Dealing with the contention their Lordships of the division bench said (para.23) :
"...... Much was argued in support of the contention that such a Notification could not be given any retrospective effect. But the background of issuing such a Notification need be categorically examined in order to appreciate the fact that such a Notification cannot be ignored while considering an application for grant of permit. It cannot be said that since the application for grant of permit was first made long before issuance of such Notification, it cannot have any effect in deciding the fate of the application. The time and situation which exist at the time of consideration of an application for grant of permit are required to be taken into consideration and this significant aspect cannot be lost sight of."
In the face of the above-noted ratio of the division bench decision, whereby I am bound, I am unable to accept the argument that in view of the Supreme Court decision in Glaxo Smith Kline Plc. & Ors. v. Controller of Patents and Designs & Ors., I am not required to follow the division bench decision on the ground that it was given without considering the provisions of s.6 of the General Clauses Act, 1897. If I am to accept the argument, then I have to hold that the division bench decision passed sub silentio. I have no doubt that I am not competent to say so.
In my opinion, there is no scope for me to examine the correctness of the division bench decision. I am bound by it, especially when it was given on facts which are substantially identical with the facts of this case. Hence I hold that the transport authority is justified in taking the plea in the opposition that in view of the government notification dated August 2, 2004, there is no scope for granting the permit for which the petitioner submitted the application dated September 29, 1999. Hence a mandamus cannot be issued commanding it to issue the permit. However, it is not for me to say whether it has committed any contempt of this court.
For these reasons, I dismiss the writ petition. There shall be no order for costs.
Urgent certified xerox of this order, if applied for, shall be supplied to the parties within three days from the date of receipt of the file by the section concerned.
(Jayanta Kumar Biswas, J.)