Calcutta High Court
State Of West Bengal And Ors. vs Kalyan Chakrabarty on 8 September, 2005
Equivalent citations: 2006(4)CHN578
JUDGMENT S.P. Talukdar, J.
1. Common points of facts and law being involved in the eight cases as mentioned earlier, by consent of learned Counsel for the parties all those were heard at a time. The same are governed by this common judgment.
2. In M.A.T. No. 1961 of 2005, respondent, Sri Kalyan Chakrabarty, as petitioner, filed an application under Article 226 of the Constitution and the grievances, as ventilated in the said application, may briefly be stated as follows:
He made an application on 14th January, 2000 for grant of permanent offer letter in connection with Auto-Rickshaw permit in respect of the route from Chinsurah C.O.M.H. Office to Farm Gate. The said application was rejected without assigning any reason though the present appellants were required to dispose of the application in accordance with law and after giving him an opportunity of hearing. The petitioner then approached this Court by filing an application under Article 226 of the Constitution which was disposed of by order dated 5th June, 2000 by issuing a direction upon the Regional Transport Authority to consider the application on merit within twelve weeks from the date of communication of the order. Petitioner approached the authority concerned but by letter dated 25.08.2000, the Secretary, Regional Transport Authority, Hooghly informed that his application was rejected. This Court was approached again and by order dated 27.11.2000, this Court while rejecting purported letter dated 25.08.2000 directed the authority to reconsider the application. The petitioner was then heard by the Secretary, Regional Transport Authority, Hooghly who by letter dated 27.03.2001 communicated that the application for grant of permit was again rejected. Petitioner was, however, given a copy of the chart of the routes and was given the choice of selecting one from the same. The order dated 27.03.2001 passed by the Secretary, was, thereafter, rejected by learned Single Bench of this Hon'ble Court by order dated 03.09.2001. The petitioner approached the authority concerned again and he was heard. The Secretary, Regional Transport Authority, Hooghly vide Memo No. 3052 (7)/MV, communicated the resolution dated 05.10.2001 and, in fact, the authority stuck to its earlier stand thereby, while rejecting his application for grant of permit, gave option for choosing any other prescribed route.
3. The petitioner was, thus, left with no choice but to approach this Court again with an application under Article 226 of the Constitution and by the impugned judgment dated 11.04.2005, the learned Single Bench of this Court while disposing of the writ application being W.P. No. 19248 (W) of 2001 directed the authority concerned to issue permanent contract carriage permit within a specified period.
4. Being aggrieved by the said judgment and order dated 11.04.2005, the respondent authorities approached this Court by preferring the instant appeal.
5. Appellant-State authorities while praying for setting aside of the impugned judgment dated 11.04.2005 took the view that there could be no scope for grant of any further permit in respect of the route for which such permit was sought for and option was extended to choose any other prescribed route.
6. It seems to be the further stand of the appellant that in connection with compliance of a judgment of the Hon'ble Division Bench of this Court,the Government issued a Notification on 02.08.2004 which further stands in the way of granting a route permit in favour of the petitioner.
7. Mr. N. I. Khan, learned Counsel appearing for the appellant/State authorities submitted that there had been failure on the part of the learned Trial Judge to appreciate the matter in the proper perspective. He contended that a Division Bench of this Hon'ble Court by judgment dated 21.11.2003 passed in G.A. No. 568 of 2002 (A.P.O.T. No. 83 of 2002) directed the State authorities to form a policy on the basis of the recommendation to be made by a Committee in the matter of granting such permit.
8. Mr. Khan submitted that in compliance with the said direction of the Division Bench, the State authorities took a distinct stand as reflected by Notification dated 02.08.2004. It was then submitted that there could be no scope for granting permit in favour of the writ petitioner in respect of the particular route for which such permit was sought for Mr. Khan did not forget to mention that it was not a case of outright rejection of the writ petitioner's prayer for granting of permit but the authorities gave him the option to choose any other route.
9. On the other hand, learned Counsel appearing for the respondent submitted that such a Notification dated 02.08.2004 could not have had any manner of application to the facts and circumstances of the present case. It was first submitted that such Notification could not be given any retrospective effect and having regard to the fact that the writ petitioner approached the authorities for grant of permit in his favour long before issuance of such Notification, his prayer/claim could not be turned down on such pretext.
10. In this context, Mr. Das, learned Counsel appearing for the respondent No. 1 referred to the decision in the case of Mithilesh Garg v. Union of India and Ors. etc. reported in AIR 1992 SC 443, where it was specifically held that Motor Vehicles Act, 1988 provides liberal policy for the grant of permits to those who intend to enter the motor transport business. It was submitted that the Statement of Objects and Reasons of the Act shows that the purpose of bringing in the Act was to liberalise the grant of permits. In fact, the Apex Court in the said case observed that the provisions of the Act are in conformity with Article 19(1)(g) of the Constitution. It was held that when the State has chosen not to impose any restriction under Article 19(6) of the Constitution in respect of motor transport business and has left the citizens to enjoy their right under Article 19(1)(g), there can be no cause for complaint by the existing operators. The Apex Court reminded that the transport system in a State is meant for the benefit and convenience of the public.
11. A Single Bench of this Court in such context held that "congestion of traffic", which is often a ground of refusal resorted to by the Permit Granting Authority can no longer be resorted to. A permit is to be granted as a matter of course in the ordinary run of events, notwithstanding apprehended increase in traffic, unless there is some restriction imposed in accordance with Section 71(3)(a) of Motor Vehicles Act.
12. It was observed in the said judgment that "in view of the introduction of Section 80 in the Motor Vehicles Act, 1988, the statutory changed law now is that the concerned transport authority is compelled to exercise its duty to grant a permit in all ordinary circumstances. The grant of permit is the rule, and the ordinary legal result of an application for permit by an ordinary operator seeking to operate on an ordinary route. Refusal is an exception." [Ref : Gouranga Barik v. State of West Bengal reported in 1993 (2)CLJ 229].
13. In the case of Mira Sur v. State of West Bengal and Ors. reported in AIR 1994 Calcutta 212, another Single Bench of this Court held that transport authority being itself a creature of statute cannot override the statute and usurp jurisdiction defying the statute, defying the Parliament that made the statute. In the said case, learned Single Bench of this Court held that rejection of the application for stage carriage permit by the Transport authority on the ground that grant of permit would cause unhealthy congestion is not permissible.
14. Referring to the Notification dated 2nd August, 2004, it was submitted by learned Counsel appearing for the respondent that such Notification could not be given retrospective effect. Relying upon the decision in the case of A.A. Calton v. Director of Education and Anr. reported in AIR 1983 SC 1143, it was submitted that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect.
15. Learned Counsel appearing for the respondent, in fact sought to strengthen his argument in this context by further relying upon the decision in the case of P. Mahendran and Ors. v. State of Karnataka and Ors. reported in AIR 1990 SC 406, and was contended that construction of such Notification should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject-matter.
16. Learned Counsel appearing for the respondent went a step further by submitting with emphasis that instead of leaving the matter once again to the Court of the Transport authority, this Court by itself, in exercise of its writ jurisdiction can direct issuance of such permit. In this context reference was made to the decision in the case of Comptroller and Auditor General v. K. Section Jagannathan reported in AIR 1987 SC 537.
17. So far the power of this Court is concerned, there is tittle scope for any ambiguity. It is well-settled that this Court can exercise its writ jurisdiction to reach injustice wherever it is found and 'to mould the reliefs to meet the peculiar and complicated requirements of this country.'
18. Before proceeding further it is perhaps necessary to reproduce Section 73 and Section 74 of the Motor Vehicles Act which are as follows:
Section 73. Application for contract carriage permit.--An application for a permit in respect of a contract carriage (in this Chapter referred to as a contract carriage permit) shall contain the following particulars, namely,
(a) the type and seating capacity of the vehicle ;
(b) the area for which the permit is required ;
(c) any other particulars which may be prescribed.
Section 74. Grant of contract carriage permit.--(1) Subject to the provisions of Sub-section (3), a Regional Transport Authority may, on an application made to it under Section 73, grant a contract carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit:
Provided that no such permit shall be granted in respect of any area not specified in the application.
(2)...
(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 contract 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.
(b) Where the number of contract carriages are fixed under Clause (a), the Regional Transport Authority shall, in considering an application for the grant of permit in respect of any such contract carriage, have regard to the following matters, namely,
(i) financial stability of the applicant;
(ii) satisfactory performance as a contract carriage operator including payment of tax if the applicant is or has been an operator of contract carriages, and
(iii) such other matters as may be prescribed by the State Government:
19. Referring to this, it was submitted by learned Counsel for the appellant that the Regional Transport Authority is perhaps not left with any choice but to grant permit in respect of a route for which application is made. Our attention was drawn to Sub-section (3) of Section 74 of the said Act in support of the contention that the State Government can only limit the number of contract 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 if so directed by the Central Government. Thus, with the direction of the Central Government, the State Government having regard to the number of vehicles, road conditions and other relevant matters, may issue Notification in order to regulate grant of permit in the manner as specified therein.
20. The observation made by the Apex Court in the case of Mithilesh Garg v. Union of India and Ors. reported in AIR 1992 SC 443, as mentioned earlier, is of significance in the backdrop of the present case.
21. It was held that it is not disputed that the Regional Transport Authority has the power under the Act to refuse an application for grant of permit by giving reasons. It is for the authority to take into consideration all the relevant factors at the time of quasi-judicial consideration of the applications for grant of permits. The statutory authorities under the Act are bound to keep a watch on the erroneous and illegal exercise of power in granting permits under the liberalised policy.
22. Thus, it is not that the authority concerned has no role to play. It is not the intention of the legislature that while having a liberalised policy, the authority was placed in a position where it was "not to reason why but to do and die.
23. Learned Counsel for the respondent categorically submitted that the authority concerned was consistent in its non-application of mind and every time the prayer for grant of permit was turned down on the same pretext and that is, congestion. It was emphatically submitted that the authority concerned failed to consider the fact that the matter was referred to it again and again by this Court in response to applications under Article 226 of the Constitution. No doubt, there is force in the submission but the change of situation also cannot be lost sight of. At the time of hearing of the matter, our attention was drawn to the fact that in compliance with the direction given by the Division Bench of this Court, the relevant authority of the Government of West Bengal issued a Notification dated 02.08.2004. 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.
24. It was submitted by the learned Counsel for the respondent that repeated efforts on the part of the respondent to get permit were frustrated by consistent indifference on the part of the authority concerned to the orders of this Court. It was submitted that 'congestion' could not be a valid reason for refusing to grant permit. In this context reference was made to the observations made by the Hon'ble Courts regarding the change in the legislative policy and it was contended that the liberalised policy did not leave any scope for the authority's standing in the way of grant of permit. While referring to the Notification dated 02.08.2004 it was submitted that such a Notification was not in existence when the respondent approached the authority for grant of permit and such Notification cannot be given any retrospective effect.
25. The Court is, however, called upon to decide as to whether the authority concerned while discharging its duty acted with fairness and impartiality or not. As a public authority, its duty is to decide in accordance with law and to exercise discretion reasonably. It has the further duty to come to a reasonable decision. It has also the duty to hold the balance fairly. In the case under reference, the request for grant of permit was, no doubt, turned down again and again may be for different reasons. On the last occasion, it was refused on the ground that the route for which such permit was sought for is congested. The question arises as to whether the Regional Transport Authority has any discretion or not. We are afraid that the authority cannot be left to function without any power to exercise discretion--of course, on valid grounds. There are occasions when the Court must resist the temptation to interfere. It cannot be denied that within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. The Court must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature is presumed to have intended.
26. It is perhaps needless to mention that a case is only a authority for what it actually decided. Lord Halsbury said in Quinn v. Leathern 1901 AC 495, 506:
I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.
27. In regard to the Notification dated 02.08.2004 we are of the considered opinion that the authority concerned cannot be unmindful to the same merely on the ground that such a Notification was not in existence when the respondent first approached for grant of permit. It is necessary to consider such change in the position while considering the application for grant of permit and it is clear that if the route for which permit is sought for is covered within the same, it has to be taken into consideration.
28. It is also necessary to bear in mind that the authority concerned has given a choice to the respondent for having a permit for some other route through this is, strictly speaking, not within the scope of Section 74 of the Motor Vehicles Act. It was submitted that subsequent to issuance of such Notification, the authority concerned granted permit for the route which is within the aforesaid area. Learned Counsel for the appellant sought to explain this by pointing out that it was so done in order to comply with certain orders of the Courts passed from time to time. We think that such reference is not of much consequence as "two blacks cannot make a white".
29. Assuming that permits were granted even after issuance of the Notification under threats of contempt, this Court cannot really be guided by it. In order to decide the fate of the application for grant of permit, this Court is concerned about the Notification as referred to earlier and not by the stray violations of the said Notification even by the authority.
30. Considering all such facts and circumstances and having regard to the aforesaid discussion we are of the opinion that the respondent cannot be said to have unfettered right to get a permit for operating an Auto-Rickshaw in the route for which application was made. The right under Section 74 of the Motor Vehicles Act, 1988 is also subject to reasonable restrictions. Such restrictions may emanate from various sources which include a subsequent change of situation arising out of too little space for too many vehicles, congestion, pollution, road conditions, public conveyance and so on and so forth.
31. In our opinion, such a discretion was not intended to be taken away from the concerned Transport authorities as that would only lead to an ocean of uncertainty and a state of functional disorder.
32. Considering all these aspects we find it difficult to accept the stand taken by the learned Single Judge and we find no rational justification for brushing aside the grievances, as ventilated on behalf of the appellant.
33. So the appeal succeeds.
34. Impugned order dated 11th April, 2005 passed by the learned Single Bench in W.P. No. 19248 (W) of 2001 be accordingly set aside.
35. There is, however, no order as to costs.
36. Xerox certified copy of this judgment, if applied for, be supplied to the parties expeditiously.
P.K. Samanta, J.
37. I agree.