WP Nos. 3937, 2507 (W) of 2013, with 12466, 13809 of 2014 etc.. Case: Prabhat Pan Vs State of West Bengal. High Court of Calcutta (India)
| Case Number | WP Nos. 3937, 2507 (W) of 2013, with 12466, 13809 of 2014 etc. |
| Counsel | For Petitioner: N. I. Khan, Saktipada Jana, Subhrangsu Panda, Rameswar Bhattacharjee, Soumen Bhattacharjee, S. Panda, Arun Kanti Bera, Ms. Soumi Pal, Advs. and For Respondents: Sanat Kumar Roy, Pantu Deb Roy, Subrata Guha Biswas, Malay Chakraborty, Arabinda Chatterjee, Arkadipta Sengupta, Bhaskar Nandi, Prabhat Kr. Chattopadhyay, Pantu Deb Roy,... |
| Judges | Ashim Kumar Banerjee , J. and Sanjib Banerjee, J. and Ashis Kumar Chakraborty , J. |
| Issue | Motor Vehicles Act (59 of 1988) - Sections 80, 88; Constitution of India - Articles 226, 14 |
| Citation | AIR 2015 Cal 112 |
| Judgement Date | February 25, 2015 |
| Court | High Court of Calcutta (India) |
Judgment:
Sanjib Banerjee, J.
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There is a primary question and a supplemental issue that have been referred to this Full Bench:
Whether, in view of the law laid down by the Hon'ble Supreme Court in Mithilesh Garg v. Union of India AIR 1992 SC 443, a writ petition at the instance of existing operators providing stage carriage services on different routes, who seek to challenge grant of fresh permits in favour of new operators (either on the self-same routes on which they have been operating or touching a portion of the same) by the transport authorities ostensibly taking recourse to the bogey of liberalized policy relating to grant of permits under the Motor Vehicles Act, 1988, is not maintainable although such grant ex facie might appear to the Court to be grossly illegal, patently arbitrary and in colourable exercise of power, consequently offending the constitutional concept of equality?
"Whether it would be permissible for the Court exercising jurisdiction under Article 226 of the Constitution of India to entertain applications by holders of stage or contract carriage permits under the Motor Vehicles Act, 1988 questioning action or inaction on the part of the transport authorities in dealing with the complaint or allegations in relation to acts of other operators in running their vehicles for carrying passengers, whether holding permits or not, which acts would constitute ex-facie violation of the provisions of the Motor Vehicles Act, 1988 or Rules made in that regard".
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The circumstances in which the reference has arisen have been succinctly captured in the orders of October 8, 2013 and November 11, 2014. Ideally, such orders ought to be reproduced, but for the sake of brevity the salient parts of the orders are paraphrased to bring out the essence thereof.
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The principal question indicated above has been formulated in WP 3937(W) of 2013 in the order of October 8, 2013. Such principal question has been quoted in the second order of reference along with the supplemental question extracted above. The second order of reference has been passed in the other clutch of petitions. The case made out in the first of the petitions, which is covered by the order of reference of October 8, 2013, is that the petitioners are holders of stage carriage permits on different routes all terminating in Howrah. The petitioners complain of the respondent transport authorities having allowed vehicles to be operated in contravention of a notification of August 2, 2004 which was issued pursuant to the direction of a Division Bench of this court of November 21, 2003. The notification was published in the Official Gazette on August 6, 2004 and it stipulates that no new bus route through Esplanade or the Bandstand in Kolkata or the Howrah Station or the approach areas of the Howrah Bridge (Rabindra Setu) would be formulated or permits be issued; that no stage-carriage permits would be issued for any route originating or terminating at Esplanade or Bandstand in Kolkata and at Howrah Station; and, no new bus route shall be created in Kolkata and in Howrah without establishing appropriate parking places having requisite amenities for both the passengers and the transport workers.
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The seven complaining petitioners in the first of the petitions have sought, inter alia, a mandamus for cancellation of the permits issued in violation of the notification published on August 6, 2004. One of the beneficiaries of the alleged illegal grant of permit was subsequently impleaded as the eighth respondent to the first of the petitions and such added respondent questioned the maintainability of the petition at the instance of the rival operators by referring to a Division Bench judgment of this Court apparently extending the dictum in Mithilesh Garg [(1992) 1 SCC 168]: (AIR 1992 SC 443) to any complaint made by an existing operator against a rival.
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The first order of reference noticed the Division Bench judgment reported at (2008) 1 CHN 1096 (Sekhar Chatterjee v. Abdur Rahim Mondal) and similar views expressed in the Division Bench judgments reported at AIR 2007 Cal 252 (Sanjit Chakraborty v. State of West Bengal) and AIR 2008 Cal 31 (Mobesher Hossain Mondal v. Sekhar Chatterjee) and the unreported Division Bench decisions in FMAT No. 2902 of 1996 (Secretary, Route No. 56 Bus Association v. Champadanga Dakshineswar Bus Association); APOT No. 604 of 1999 (Sagar Chatterjee v. Shambhu Basu); and, FMAT No. 1017 of 2003 (Mrityunjay Transport Co. v. State of West Bengal). Though all the said six judgments were sought to be distinguished by the writ petitioners by referring to the Supreme Court views in the judgments reported at (2000) 7 SCC 552: (AIR 2000 SC 3266) (M. S. Jayaraj v. Commissioner of Execise) and (2005) 3 SCC 683 (Sai Chal-chitra v. Commissioner, Meerut Mandal), the first order of reference recorded that neither Supreme Court judgment referred to Mithilesh Garg (AIR 1992 SC 443). Such first order of reference perceived that the Division Bench judgments of this court referred to earlier pertained to the locus standi of vehicle operators who questioned new grants and, as such, had a closer nexus with the legal question that had arisen than the two Supreme Court judgments. The first order of reference found Sanjit Chakraborty to have read Mithilesh Garg to imply that "an existing permit holder cannot challenge the grant of permit to other operators, on the same route, even if it had been granted illegally".
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Such order of reference, thereafter, noticed a Division Bench order of June 20, 2013 in APOT No. 51 of 2013 (Shyamal Mukherjee v. The State of West Bengal) which interpreted Mithilesh Garg to be relevant only for the purpose of considering a prayer for a route permit. In Shyamal Mukherjee, the Division Bench observed as follows:-
"... The judgment in the case of Mithilesh Garg (AIR 1992 SC 443) has no manner of application. That judgment is relevant only for the purpose of considering the prayer of an applicant for a route permit. While considering such a prayer, a rival has no say and the authorities have been directed to consider the prayer for a route permit on the basis of its own merit without being influenced by anything which a rival may have got to say. Financial loss to the rival is no factor at all to refuse to issue a permit. The law laid down in Mithilesh Garg's case has to be understood in that context."
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However, the order in Shyamal Mukherjee was made without reference to the several previous Division Bench judgments holding to the contrary and reading Mithilesh Garg (AIR 1992 SC 443) to imply that an existing permit holder would have no legal right to object to the grant of a new permit to another. It was upon appreciating such facet and the diametrically opposite view expressed in Sanjit Chakraborty (AIR 2007 Cal 252), that the issue has been referred to the Full Bench. In course of referring the question, the first order of reference observed that in Mithilesh Garg the challenge before the Supreme Court in the several petitions under Article 32 of the Constitution was not on the ground of the impugned grants of permit being illegal; the challenge was perceived by the Supreme Court to be only on the ground of warding off the new operators so that the existing operators did not have to share the same pie with more persons. In the first order of reference, an opinion was expressed that though an existing operator may not be permitted to challenge a new grant to a potential rival on the ground that it would affect the business of the existing operator, but the existing operator ought to be at liberty to complain of the issuance of a permit to another on considerations which were not germane and not traceable to the Motor Vehicles Act, 1988. The first order of reference perceived the opinion in Mithilesh Garg to be confined to the context of the right of objection under the predecessor statute (Motor Vehicles Act, 1939) being obliterated in the successor enactment. The first order of reference noticed that Section 64-A of the 1939 Act had been preserved in Section 90 of the 1988 Act and observed that it had engaged the attention of the court that there was indiscriminate issuance of permits in derogation of the policy decisions of the executive and in contravention of the statutory provisions. By referring to some pithy illustrations, the first order of reference brings out the distinction between an objection to the grant of a permit or prayer for annulment of an issue of permit on business considerations and a challenge to a permit on the ground of it being illegal.
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In the other order of reference, the petitioners therein were found to be aggrieved by the action or inaction on the part of the transport authorities in permitting certain other operators to carry passengers in contravention of the 1988 Act and the rules thereunder. The several sets of petitioners covered by the second order of reference were found to be aggrieved by the modification of a route by an authority which did not possess the jurisdiction to allow the modification; or, the grant of the relevant permit was otherwise contrary to law. The first order of reference was noticed and it was observed in the second order of reference that a similar view as in Shyamal Mukherjee had been expressed in an unreported single Bench decision in WP 6875(W) of 2003 rendered on May 12, 2005 (Prasad Konar v. State of West Bengal) but such opinion was not accepted by the Division Bench in Sekhar Chatterjee, (AIR 2008 Cal 31). The question formulated in the first order of reference was repeated in the second order of reference and the supplemental question was framed.
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On behalf of the parties asserting a right to question the propriety of the grant of a permit, several provisions of the 1988 Act have been referred to, particularly from Chapter V thereof pertaining to the control of transport vehicles. It is submitted on behalf of such parties...
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