Calcutta High Court (Appellete Side)
Sk. Ali Haque vs State Of W. B. & Ors on 10 February, 2012
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
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IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debasish Kar Gupta
W. P. No.13262 (W) of 2011
SK. Ali Haque
Versus.
State of W. B. & Ors.
For Petitioners : Mr.Rameshwar Bhattacharjee,
Mr.R.U. Bhattacharyya,
Mr.S. Bhattacharyya.
For Respondents
Nos. 8 & 9 : Mr. Amal Kumar Sen,
Mr.Biswadiup Ghosh.
For State : Mr. Pantu Deb Roy,
Mr. Siddartha Ruj.
Judgment On: February 10, 2012.
This writ application is directed against a resolution no.3 dated July 11, 2011 adopted in the meeting of the respondent no.2 rejecting the application of the petitioner for granting a Stage Carriage Permit in his favour for plying his vehicle on Bus route no.61 from Alampur to Howrah Station, District Howrah. 2
The fact of the case in a nutshell are quoted below:
The fleet strength of route no.61 from Alampur to Howrah Station and back via Bakultala (hereinafter referred to as the said route), District Howrah was fixed 30 by the Government of West Bengal, Transport Department. By virtue of a notification no.2129-WT/8S-50/2000 Pt.III, dated May 7, 2003 published in the Kolkata Gazette Extraordinary dated May 20, 2003. The Government of West Bengal Transport Department. The petitioner came to know that these vacancies in respect of the said route were in existence. He submitted an application dated June 22, 2009 before the respondent no.2 for granting Permanent Stage Carriage Permit in his favour in respect of the said route. But the requisite fees in connection with the above application of the petitioner was not accepted by the respondent no.2.
The petitioner filed an application under Article 226 of the Constitution of India in the matter of Sk. Ali Haque vs. State of West Bengal & Ors., (in re W.P. no.19731(W) of 2010) and the above writ application was disposed of on October 6, 2010 with a direction upon the respondent no.2 to accept the application of the petitioner along with requisite fees and take a decision on the application of the petitioner for operating his vehicle on the said route in accordance with law within two months from the date of communication of the order after giving an opportunity of hearing to him.
The petitioner received a communication under Memo no.3314-MV dated October 28, 2010 from the respondent no.3 requesting him to deposit the 3 requisite fees in respect of his above application for granting Stage Carriage Permit. The petitioner deposited the requisite fees in respect of his aforesaid application for granting State Carriage Permit on the said route on October 29, 2010. By a notice dated November 11, 2010, the petitioner was asked to appear before the respondent no.2 on November 19, 2010 for attending a hearing. On November 19, 2010, the respondent no.2 adopted the following resolution in respect of the above application of the petitioner are quoted below:
"W.P. no.19731(W) of 2010 (Sk. Ali Haque Vs. State of West Bengal & ors.) In W. P. no.19731 (W) of 2010 (Sk. Ali Haque Vs. State of West Bengal & Ors. ) Hon'ble Justice Indira Banerjee, High Court Calcutta directed RTA to accept the requisite fees against the application dated 22.06.2009 and also directed to take decision on the application of the petitioner for the route no.61 (Alampur to Howrah Stn.) in accordance with law. Accordingly, petitioner deposited fees on 29-10-2010.
RTA asked the applicant to appear before RTA Board for hearing. On behalf of the petitioner Ld. Advocate Soumen Bhattacharjee appears. RTA finds that the petitioner submitted application not in proper ""application from" and fees. Accordingly no decision was taken by the RTA previously. RTA also finds that there is no vacancy on the route no 61 (Alampur to Howrah Stn.) at present.
After careful consideration, RTA decides not to issue permit in favour of the applicant.
"W.P. no.19732(W) of 2010 (Sk. Shamsul Haque - Vs- State of West Bengal & Ors.) 4 In W.P. no.19732(W) of 2010 (Sk. Shamsul Haque - Vs. State of West Bengal & Ors.) Hon'ble Justice Indira Banerjee, High Court Calcutta directed RTA to accept the requisite fees against the application dated 22-6-2009 and also directed to take decision on the application of the petitioner for the route no.61 (Alampur to Howrah Stn.) in accordance with law. Accordingly, petitioner deposited fees on 29-10-2010.
RTA asked the applicant to appear before RTA Board for hearing. On behalf of the petitioner Ld. Advocate Soumen Bhattacharjee appears. RTA finds that the petitioner submitted application no0t in proper "application from" and fees. Accordingly no decision was taken by the RTA previously. RTA also finds that there is no vacancy on the route no.61 (Alampur to Howrah Stn.) at present.
After careful consideration, RTA decides not to issue permit in favour of the applicant."
Being aggrieved by the above decision, the petitioner filed an application under Article 226 of the constitution of India in the matter of Sk. Ali Haque vs. State of West Bengal and Ors., (in re W.P. No.24918(W) of 2010).
The petitioner further came to know that by a resolution dated September 28, 2010 the respondent no.2 filled up the vacancies in respect of the said route by granting permits to others the petitioner further filed an application under Article 226 of the Constitution of India challenging the above resolution of the respondent no.2 in the matter of Sk. Samsul Haque vs. State of West Bengal (in re W.P.24919(W) of 2010).
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The above writ applications were disposed of along with three other writ applications on January 17, 2011 after analogous hearing of those matters with following directions and the relevant portions of the above are quoted below:
"It appears that the Board meeting of the Regional Transport Authority held on 28th September, 2010, adopting a resolution for issuing offer letters in favour of Santosh Muni Pandey, Moumita Banerjee and Usha Pandey, the writ petitioners in W.P.24802(W) of 2010, W.P.24803(W) of 2010 and W.P.25310(W) of 2010 respectively lacked quorum as though the Chairman to put his signature, the Board members did not. Therefore, the resolution adopted on 28th September, 2010, regarding issuance of offer letters, so far it refers to the writ petitioners, is nonest in view of Section 68(2) of the Motor Vehicles Act, 1988. Therefore, the resolution issuing offer letters cannot be sustained and is, thus, set aside and quashed.
Similarly, I find that the resolution adopted by the Regional Transport Authority, Howrah, in its Board meeting held on 19th November, 2010 in presence of AS, Ali Haque and Sk. Shamsul Haque, the writ petitioners in W.P.24919(W) of 2010 and W.P.24919(W) of 2010 respectively, whereby decision was taken not to issue permit in favour of them also lacked quorum as the Chairman only had signed and not the other members. Therefore, the resolution adopted on 19th November, 2010 so far it related to Sk. Ali Haque and Sk. Shamsul Haque, the writ petitioners, cannot be sustained as it lacked of quorum and are, thus, set aside and quashed.
The respondent Regional Transport Authority, Howrah, is directed to hold its Board meeting as early as possible, but no 6 later than eight weeks, wherein decision shall be taken with regard to the applications filed by the five writ petitioners as well as the other applicant in accordance with the provision contained in the Motor Vehicles Act, 1988 and the Rules framed thereunder and the same shall be communicated to the petitioners within a week from the date of its adoption."
An appeal in the matter of State of West Bengal vs. Sk. Ali Haque & others (in re MAT 413 of 2011) was preferred by the state authority against the aforesaid judgment and the same was dismissed on May 19, 2011.
By a communication issued under Memo no.2317-MV dated August 4, 2010 the respondent no.3 informed the petitioner that the respondent no.2 rejected the application of the petitioner by the impugned resolution. The petitioner further came to know that in the meeting dated July 11, 2011, the respondent no.2 granted Stage Carriage Permits to the respondent nos.4 to 9 on the said route. The impugned resolution is quoted below:
"Resolution:- 3 In W.P. nos.24802(W) of 2010, W.P. no.24803(W) of 2010, W.P. no.25310(W) of 2010, W.P. no.24918(W) of 2010, W.P. no.24919 (W) of 2010 Hon'ble Justice Soumitra Pal, High Court Calcutta, in his order dated 17-01-2011 set aside and quashed the resolution of RTA Board dated 28-09-2010 and 19-11-2010 as the Chairman only had signed and not the other members and also directed to hold Board meeting as early as possible and to take decision in accordance with the provisions contained in the MV Act, and rules.7
Appeal was filed before the Hon'ble Division Bench, Hon'ble Justice Pinaki Ch. Ghosh and Hon'ble Justice Soumen Sen did not pass order stating that they do not think that there is any reason to interfere with such order.
Accordingly, all applicants were asked for hearing and decision after holding hearing it is decided as follows:-
A) Usha Pandey appear before RTA Board for hearing, RTA heard the applicant. Since offer letters are issued as per priority list, accordingly RTA decides to issue offer letter in favour of the application for the route no.61 (Alampur to Howrah Station).
B) Moumita Banerjee appears before RTA Board for hearing. RTA heard the applicant. Since offer letters are issued as per priority list, accordingly RTA decides to issue offer letter in favour of the applicant for the route no.61(Alampur to Howrah Station).
C) Atasi Nandy appears before RTA Board for hearing. RTA heard the applicant. Since offer letters are issued as per priority list, accordingly RTA decides to issue offer letter in favour of the applicant for the route no.61(Alampur to Howrah Station).
D) Santosh Muni Pandey appears before RTA Board for hering. RTA heard the applicant. Since offer letters are issued as per priority list, accordingly RTA decides to issue offer letter in favour of the applicants for the route no.61 (Alampur to Howrah Station).
E) Shahid Anwar appears before RTA Board for hearing. RTA heard the applicant. Since offer letters are issued as per priority list, 8 accordingly RTA decided to issue offer letter in favor of the application for the route no.61 (Alampur to Howrah Station).
F) Gopal Ch. Ghosh appears before RTA Board for hearing.
Since offer letters are issued as per priority list, accordingly RTA decides to issue offer letter in favour of the applicant for the route no61 (Alampur to Howrah Station).
G) Goutam Ghosh appears before RTA Board for hearing. After careful consideration RTA decides not to issue offer letter in favour of the applicant for the route no.61 (Alampur to Howrah Station) as he is not entitled to get the offer letter as per priority list. H) Sukumar Patra appears before RTA Board for hearing. After careful consideration RTA decides not to issue offer letter in favour of the applicant for the route no.61 (Alampur to Howrah Station) as he is not entitled to get the offer letter as per priority list. I) Shilu Manna was asked to appear for hearing. Applicant does not appear. After careful consideration RTA decides not to issue offer letter in favour of the applicant for the route no.61 (Alampur to Howrah Station) as there is no vacancy.
J) Punam Jaiswal appears before RTA Board for hearing. After careful consideration RTA decides not to issue offer letter in favour of the applicant for the route no.61 (Alampur to Howrah Station) as he is not entitled to get the offer letter as per priority list. K) SK. Akhtar Ali was asked to appear for hearing. Applicant does not appear. After careful consideration RTA decides not to issue offer letter in favour of the applicant for the route no.61 (Alampur to Howrah Station) as there is no vacancy.
L) Ram Vinod Singh and Askok Khaitan were asked to appear for hearing. Applicant does not appear. After careful consideration RTA decides not to issue offer letter in favour of the applicant for the route no.61 (Alampur to Howrah Station) as there is no vacancy. 9 M) Sabima Begam Laskar was asked to appear for hearing. Applicant does not appear. After careful consideration RTA decides not to issue offer letter in favour of the applicant for the route no.61 (Alampur to Howrah Station) as there is no vacancy.
N) Achinta Kumar Ghosh appears before RTA Board for hearing RTA heard the applicant. Applicant does not appear. After careful consideration RTA decides not to issue offer letter in favour of the applicant for the route no.61 (Alampur to Howrah Station) as he is not entitled to get the offer letter as per priority list. O) Arshi Arman appears before RTA Board for hering. RTA heard the applicant. Applicant does not appear. After careful consideration RTA decides not to issue offer letter in favour of the applicant for the route no.61 (Alampur to Howrah Station) as he is not entitled to get the offer letter as per priority list.
P) Mithu Ghosh appears before RTA Board for hearing . RTA heard the applicant. Applicant does not appear. After careful consideration RTA decides not to issue offer letter in favour of the applicant for the route no.61 (Alampur to Howrah Station) as he is not entitled to get the offer letter as per priority list.
Q) Arup Ratan Ghosh was asked to appear for hearing. Applicant does not appear. After careful consideration RTA decides not to issue offer letter in favour of the applicant for the route no.61 (Alampur to Howrah Station) as there is no vacancy.
R) Runa Pal was asked to appear for hearing. Applicant does not appear. After careful consideration RTA decides not to issue offer letter in favour of the applicant for the route no.61 (Alampur to Howrah Station) as there is no vacancy.
S) Polly Roy appears before RTA Board for hearing. RTA heard the applicant.
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After careful consideration RTA decides not to issue offer letter in favour of the applicant for the route no.61 (Alampur to Howrah Station) as he is not entitled to get the offer letter as per priority list. T) Sk. Ali Haque was asked to appear before RTA Board for hearing. On behalf of the applicant Ld. Advocate Soumen Bhattacharje, High Court Calcutta appears before RTA Board for hearing. RTA hears the Ld. Advocate.
After careful consideration RTA decides not to issue offer letter in favour of the applicant for the route no.61 (Alampur to Howrah Station) as he is not entitled to get the offer letter as per priority list. U) Sk. Shamsul Haque was asked to appear before RTA Board for hearing. On behalf of the applicant Ld. Advocate Soumen Bhattacharjee, High Court Calcutta appears before RTA Board for hearing. RTA hears the Ld. Advocate.
After careful consideration RTA decides not to issue offer letter in favour of the applicant for the route no.61 (Alampur to Howrah Station) as he is not entitled to get the offer letter as per priority list."
It is submitted by the learned advocate appearing on behalf of the petitioner that through the petitioner submitted his application for granting State Carriage Permit on the same route on June 22, 2009, the requisite fees for the same was not accepted by the respondent authority until and unless the order dated August 6, 2010 was passed in writ application bearing no.W.P.19731(W) of 2010. He further submits that in the event his initial date of submitting the application was taken into consideration none of the respondent nos.5 to 9 had submitted their respective applications before the writ petitioner. According to 11 him, consideration of the applications of the petitioner as also that of the respondent nos.4 to 9 giving preference on the basis of dates of applications runs counter to the provisions of clause (d) of sub-section (3) of Section 71 of the Motor Vehicles Act, 1988.
On the other hand, it is submitted by the Mr. Pantu Deb Roy Learned Senior Government Advocate, High Court, Calcutta that the petitioner deposited the requisite fees on October, 29, 2010. Therefore, the respondent nos. 4 to 9 submitted their applications with requisite fees before the writ petitioner. According to him, other conditions being same priority was given to the applications considering the dates of submitting applications.
It is submitted by Mr. Amal Kr. Sen appearing on behalf of the respondent nos. 8 and 9 that the decision of the respondent authority to give priority to the applicants taking into consideration the dates of submitting applications cannot be interfered with. Mr. Sen further draws the attention of this Court that time and again this Hon'ble High Court directed the respondent authority not to consider an application ignoring the applications submitted before that application. He refers an order dated July 14, 2005 passed in W.P. No.10743(W) of 2005 ( at page 26 of the affidavit-in-opposition filed by the respondent nos.1,2 and 3) in support of above submissions. He further submits that it was the policy of the respondent authority to record the serial nos. of the applications for granting Stage Carriage Permits on the basis of the dates of applications to consider the same.
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I have heard the learned counsels appearing for the respective parties at length and I have also the considered the fact and circumstances of the case carefully the application of the petitioner for granting stage carriage permit in support of the route in question was submitted on June 22, 2009 without requisite fees. It is also not in dispute that the respondent authority accepted the requisite fees in respect of the above application of the petitioner on October 29, 2010. It appears from the materials on record that the respondent authority considered the date of payment of requisite fees in respect of the above application of the petitioner as the date of his application. It is admitted fact that the application of the petitioner as also those of the respondent nos.4 to 9 were considered on the basis of a priority list prepared by the respondent authority on the basis of the respective dates of the aforesaid applications. In order to examine the legality and or impropriety of the above decision making process of the respondent no.2, the provisions of Clause (d) of sub-section (3) of Section 71 of the Motor Vehicles Act, 1988 are quoted below:
"S. 71. Procedure of Regional Transport Authority in considering application for stage carriage permit.- (1).....
2.........
3.(a).....
(b)....
(c).....
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(d) After reserving such number of permits as it referred to in clause (c), the Regional Transport Authority shall in considering an application have regard to the following matters, namely,-
(i) financial stability of the applicant;
(ii) satisfactory performance as a stage carriage operator
including payment of tax if the applicant is or has been an operator of stage carriage service; and
(iii) such other matters as may be prescribed by the State Government:
Provided that, other conditions being equal, preference shall be given to applications for permits from-
(i) State transport undertakings;
(ii) Co-operative societies registered or deemed to have been
registered under any enactment for the time being in force;
(iii) Ex-servicemen;
(iv) Any other class or category of persons, as the State Government may, for reasons to be recorded in writing, consider necessary."
After considering the above procedure, I find that there was not provision in Clause (d) of sub-section (3) of Section 71 of the Motor Vehicles Act, 1988 to prepare any list giving priority to any applicant for granting Stage Carriage Permit in his favour on the basis of the date of application. 14
It was decided by the Privy Council in the matter of Nazir Ahmed vs. King Emperor, reported in AIR 1936 PC 253 that when a power was given by the statute to do certain thing in a certain way it must be done in that way and other methods of performance were forbidden. Hon'ble Supreme Court relied upon the above principles of law on a number of occasions. Reference may be made to the decision of Commissioner of Income Tax vs. Anjum M.H. Ghaswala & ors., reported in (2002) 1 SCC 633 and the relevant portions of above decision are quoted below:
"Then it is to be seen that the Act requires the Board to exercise the power under Section 119 in a particular manner i.e. by way of issuance of orders, instructions and directions. These orders, instructions and directions are meant to be issued to other income tax authorities for proper administration of the Act. The Commission while exercising its quasi-judicial power of arriving at a settlement under Section 245-D cannot have the administrative power of issuing directions to other income tax authorities. It is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. If that be so, since the Commission cannot exercise the power of relaxation found in Section 119(2) (a) in the manner provided therein it cannot invoke that power under Section 119(2)(a) to exercise the same in its judicial proceedings by following a procedure contrary to that provided in sub-section (2) of Section 119."
(Emphasis supplied.) 15 It is also well-known proposition of law that natural person has the capacity to do all lawful things unless his capacity has been curtailed by some rule of law. It is equally a fundamental principle that in case of a statutory authority, it is just the other way. The statutory authority has no power to do anything unless those powers are conferred on it by the statutes, which creates it. Reference may be made to the matter of Maniruddin vs. Chairman of the Municipal Commissioners, Dacca reported in 40 CWN 17 and the relevant portions of the above decision are quoted below:
"It is a fundamental principle of law that a natural person has the capacity to do all lawful things unless his capacity has been curtailed by some rule of law. It is equally a fundamental principle that in the case of a statutory corporation it is just the other way. The corporation has no power to do anything unless those powers are conferred on it by the statute which creates it. In the Municipal Act of 1884, I do not find any power given to the Municipality to allow the use of a public thoroughfare from day to day for any other purposes than a public pathway."
In view of the aforesaid settled principles of law, I find that the respondent no.2 was under obligation to act strictly within the parameters of the authority delegated to it under the provisions of Clause (d) of sub-section (3) of Section 71 of the Motor Vehicles Act. But the decision making process of adopting the impugned resolution was vitiated for bringing the theory of implied intend or the concept of incidental or ancillary power in the matter of considering the 16 application for granting Stage Carriage Permit in respect of route where the maximum fleet strength had been limited by virtue of a notification issued under Clause (a) of sub-section (3) of Section 71 of the Motor Vehicles Act, 1988. Therefore, the impugned resolution is quashed and set aside.
The respondent no.2 is directed to take decision in respect of all the applications including that of the petitioner and the respondent nos.4 to 9 for granting Stage Carriage Permit in respect of the said route strictly within the parameters of the authority delegated to it under the provisions of Clause (d) of sub-section (3) of Section 71 of the Motor Vehicles Act, 1988 within the six weeks from the date. The respondent No.3 is directed to communicate the above decision to the petitioner and the respondent no.4 to 9 within a week from the date of such decision.
This writ application is thus disposed of.
There will be, however, no order as costs.
Urgent Photostat plain copy of this judgment duly countersigned by the Assistant Registrar (Court) be given to the parties on usual undertaking.
( Debasish Kar Gupta, J. )