Calcutta High Court
Gautam Bhaduri vs State Of West Bengal & Ors on 8 December, 2010
Author: Indira Banerjee
Bench: Indira Banerjee
ORDER SHEET
W.P. No.779 of 2010
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Gautam Bhaduri.
-Versus-
State of West Bengal & Ors.
Before
The Hon'ble Justice
INDIRA BANERJEE
08.12.2010
In this writ application the petitioner has challenged the
decision taken by the State Transport Authority at its meeting held
on 31st August, 2009 rejecting the prayer of the petitioner for
permanent stage carriage permit to operate of vehicle in the route
from Nirmala Cinema Hall to Karunamoyee as specified in the
application.
The decision is set out hereinbelow for convenience :
"The Lawyer appeared. The matter is discussed in STA,
WB Regarding terminus facility at Nirmala Cinema Hall end no
new official particulars have been given. The matter is dealt with
elaborately by the Division Bench, presided over by the Hon'ble
Justice Pratap Kr. Roy in G.A. No. 2124 of 2007, G.A. No.2188 of
2
2007 by an order dated 1.08.2007 wherein it was held by the
Hon'ble Division Bench that the clause No.3 of the Notification
No.3438-WT/3M-139/2004 dated 2.08.2004 of the Transport
Department, Government of W.B. was connerned with reference
to creation of such bus route in Kolkata and Howrah. Regarding
availability of terminus facility for allowing a new stage carriage
permit has been under challenge in Hon'ble High Court, Calcutta
and the same is now pending in the Hon'ble Supreme Court, in
SLP(c) 21457-21468/2008 moreover, the route alignment from
Nirmala Cinema Hall to Karunamoyee is congested and the
plying of more buses will aggravate the issue of congestion
Hecne, STA, WB has resolved to reject the prayer."
It is not in dispute that there is no notification under Section
71(3(A) restricting the number of vehicles on the route. The issue is
whether the application could have been rejected on the ground that
the route was congested and plying of vehicles would aggravate
congestion or on the ground that there were no official particulars
with regard to availability of terminus facility.
The issue of whether permit can be refused on the ground of
congestion has been decided in the negative by a Single Bench of this
3
Court in Gouranga Barik vs. State of West Bengal & Ors. reported in
1993(2) CLJ 229. This Court held as follows :
"32. Under Sections 71 and 72 of the Act, the procedure for
consideration and grant of permits is dealt with in detail.
Violations of these sections might entail the refusal of grant. It
might be that the financial stability of the applicant is doubtful.
He might be an undischarged insolvent or a recently discharged
insolvent. The same would be a factor in considering the
application made by such a person and Section 71 (3) (d) (i)
makes that position clear.
33. It is also important to note that, in case of city routes in
towns with a population of not less than 5 lakhs, the number of
Stage Carriage Permits may be limited at the direction of the
Central Government by the State Government.
Section 71(3)(a) in that regard is set out below :-
'71(3)(a): The State Governemtn 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 stage
carriages generally or of any specified type, as may be fixed and
4
specified in the notification, operating on city routes in towns
with a population of not less than five lakhs.'
34. Thus, congestion of traffic, which is often a group 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). In such a case, the rejection of
the permit application is to be made summarily.
35. It is important to note that no other case of congestion
of traffic, apart from the city routes in over-populated towns, has
been expressly mentioned in the Act. One of the welknown
principles of statutory construction is that the expression of one
particular event or thing or contingency is to be construed as an
exclusion of the other possible things, events or contingencies,
which might have otherwise been under consideration, without
such express mention. If a power is given only under a certain
contingency to a particular authority, it is the normal rule of
construction that such power is not to be exercised under any
other contingency or by any other authorities.
5
36. The limitation of the number of vehicles on a route can
be made only by an interaction of two Governments under
Section 71(3)(a). It would be an interpretation contrary to the
object and purpose of the liberalised Motor Vehicles Act of 1988,
if it were to be held that for less congested routes, which are not
wholly in over-populated towns, a lesser authority, like the State
Transport Authority or the Regional Transport Authority, can
refuse permits on a plea of congestion. Congestion is not to be
invoked as a reason for refusal of permit, because the Parliament
in its wisdom has liberalised the policy of permit granting and
has laid down the law that ordinarily permits are to be granted.
Refusal for congestion is a ground jealously guarded and limited
by Parliament. The intention of the Parliament cannot be
curtailed by any local policy of any S.T.A. or any R.T.A. which
might seek to avoid any particular congestion in any particular
terminus. What the high authority of two Governments can do in
situations of urban over population, surely, the fare lower
authority of transport authorities cannot effect in situations less
grave, less urgent and calling for less interference."
6
Rejection of the permit on the ground that plying of more
vehicles would aggravate the issue of congestion cannot be legally
sustained.
By a judgement and order dated 10th March, 2008 in W.P.
No.1642(W) of 2008 with W.P. No.1752(W) of 2008, a Single Bench of
this Court held, that in the absence of any notification in terms of
Rule 182 of 1989 Rules or restrictions otherwise, the respondents
could not direct applicants for permit to produce bus stand availability certificate. The Single Bench observed that it was always within the jurisdiction of the District Magistrate or Commissioner of Police to prevent user of any place as bus stand. But if they chose not to do so, the STA authorities could not impose restrictions indirectly by directing the petitioner to obtain certificate from such authorities.
The Single Bench found that there was no provision in the Motor Vehicles Act or Rules or any other statute which provided for issuance of such certificates. This Court thus directed the State Transport Authority to proceed with the applications in issue in those writ petitions, without insisting on the requirement for production of certificate from the District Magistrate or the Commissioner of Police. The aforesaid judgement and order was upheld in appeal. 7
It appears that an application for Special Leave to Appeal from the judgement and order of the Division Bench upholding the aforesaid judgement and order of the Single Bench was filed. Leave was granted. The appeal has been admitted. The writ petitioner has been granted leave to apply for a certificate without prejudice to its rights and contentions.
The Supreme Court only admitted the Special Leave Petition. The order of the Division Bench and/or the order of the Single Bench has not been stayed. In any case, the filing of an appeal and/or the pendency of an appeal could not be a ground for rejecting the application of the petitioner for permit outright. Final decision on the application for grant of permit might have been postponed pending final adjudication by the Supreme Court of the dispute as to whether certificate of the District Magistrate regarding availability of parking facilities at the bus stand could be insisted upon.
As observed above, the judgment and order of the Single Bench and the Division Bench have neither been set aside nor stayed. The writ petitioner of that particular case has been granted liberty to apply for bus stand certificate without prejudice to its rights and contentions. Rejection of the application can not be sustained. 8
Mr. Banerjee appearing on behalf of the State Respondents relied upon an unreported judgment of the Hon'ble Supreme Court in State of West Bengal & Ors. -Versus- Sk. Nurul Amin [Civil Appeal No. 1961 of 2006 with Civil Appeal No. 1962 of 2006] in support of his contention that congestion was a ground for rejection of an application for permit. The relevant paragraphs of the judgements cited by Mr. Banerjee are set out herein below for convenience:
"A careful reading of sub-section (1) of section 72 makes it clear that the Authority is not bound to grant a stage carriage permit as sought. The Authority could either grant the stage carriage permit in accordance with the application or refuse to grant such stage carriage permit or grant the stage carriage permit with such modifications as it deemed fit. The only restriction on the power of the Authority is that it could not grant a permit for a route not specified in the application.
In this case, what the Authority has done is to grant the permanent stage carriage permits in regard to the routes for which the applications were made, but with a modification, by curtailing the routes for which the permits were applied, only up to Barasat. The Authority in effect therefore refused to grant the permit for the last leg (Barasat to Kolkata) of the two routes 9 applied. Though the communications from the Authority to the respondent did not contain the reason for curtailing the routes, it is stated that the resolutions of Authority (which led to the issue of the impugned communications) assigned the reason for curtailment. The reason was that in view of the heavy traffic congestion and vehicular pollution in Kolkata, there was restriction of entry of new passenger vehicles into Kolkata and, therefore, the permits were granted only up to Barasat.
The Division Bench proceeded on the basis that when one of the termini is altered by the Authority, then the permit is not granted in respect of the route applied, and it would amount to granting a permit in respect of a route not specified in the application. On a careful consideration, we are of the view that the interpretation by the High Court is without basis. What is prohibited by the proviso to sub-section (1) of section 72 is granting of a permit in respect of any route or area not specified in the application. The said proviso does not prohibit curtailment in regard to portion of the route applied for, for any valid reason. In fact sub-section (1) specifically authorizes the Authority to grant the stage carriage permit with such modifications as it 10 deems fit. Curtailment of a route would be a modification as contemplated under sub-section (1)."
What was in issue in the aforesaid case, whether offer to grant permit upon curtailment of the route would amount to refusal to grant a permit in respect of the route specified in the application. The issue was answered in the negative.
A judgment is a precedent for what it decides and not what may logically be deduced from it. The issue of whether permit could be declined on the ground of congestion was not in issue before the Hon'ble Supreme Court.
The impugned decision cannot be sustained and the same is set aside and quashed. The State Transport Authority shall decide the application afresh in accordance with law.
The decision shall be taken within six months from the date of communication of this order.
Writ application is disposed of.
Urgent certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(INDIRA BANERJEE, J.) K.Banerjee Assistant Registrar (C.R.)