2020 Supreme(Cal) 33

IN THE HIGH COURT OF CALCUTTA
Dipankar Datta, Protik Prakash Banerjee, JJ.
State Of West Bengal And Others - Appellants
Versus
Avijhit Ghosh And Others - Respondents
C.A.N. No. 9684 of 2017, 1758 of 2018, 1715 of 2018, 8390 of 2017; M.A.T. No. 1620 of 2017, 1443 of 2017
Decided On : 11-02-2020

The Parliament in its wisdom took away the right of existing operators to file objections to increasing the fleet strength or enhancement of limit of the number of stage carriage permits in any particular route.

Headnote:

JUDGMENT Protik Prakash Banerjee, J. - Two intra-court appeals from the same order dated August 9, 2017 have come before us and with the consent of the parties they were consolidated and heard analogously. The said order dated August 9, 2017 was passed on WP No.26463 (W) of 2016, at the instance of the writ petitioner/respondent no. 1, whereby the writ petition was allowed to the extent of setting aside the order dated January 22, 2016 passed by the Principal Secretary, Department of Transport, West Bengal, the corrigendum dated March 4, 2016 passed by the same authority, and the consequent notification purportedly under Section 71(3)(a) of the Motor Vehicles Act, 1988 dated June 17, 2016 published in Part I of the Kolkata Gazette Extraordinary on June 30, 2016. The State of West Bengal which was the principal respondent therein, alongwith the Regional Transport Authority and its Secretary, preferred MAT No.1620 of 2017 therefrom, whereas respondents No.4, 5, 6 and 8 in the writ petition, preferred MAT No.1443 of 2017.

Fact of the Case:

The writ petition was allowed by the impugned order basically because His Lordship was pleased to hold that while some existing operators were given a hearing without the official respondents (appellant State herein) being under any obligation to do so, the other existing operators were not heard, before the fleet strength was increased. There are other observations relating to the inherently contradictory stands taken by the State as a respondent in the writ petition, and the conduct of the private respondents who pretended in an earlier public interest litigation to be members of the commuting public to seek consideration of their representation for increase of fleet strength in two given routes, whereas they or their relatives were actually existing operators, and who turned around and applied for additional permits for stage carriage vehicles after the fleet strength was increased, which subterfuge was deprecated by the Division Bench hearing a recalling application by the self-same writ petitioner/respondent no. 1, as a matter of displeasure that the public interest litigants had not disclosed their identity as permit holders while applying as commuters in respect of the said route even while dismissing the recalling application.

Finding of the Court:

Thus, it will be clear that the Parliament in its wisdom took away the right of existing operators to file objections to increasing the fleet strength or enhancement of limit of the number of stage carriage permits in any particular route. In the said Act of 1988, however, there is a provision under Section 71(3)(a) under which a limit can be fixed for the grant of permits in respect of the routes which are within a town having population of more than five lakhs but only if the manner prescribed therein is followed.

Issues: 1. Whether the notification dated August 2, 2004, published on August 6, 2004, was in exercise of the executive function under Article 162 of the Constitution of India or was it also in pursuance of the statutory power under Section 71(3)(a) of the said Act of 1988? 2. Whether the notification published on June 30, 2016 is deemed to have modified the notification published on August 6, 2004 and that the power to create includes the power to destroy and also the power to alter what is created, taking an inspiration from Section 21 of the General Clauses Act? 3. Whether the two notifications can coexist harmoniously, provided we hold that the notification published on August 6, 2004 was modified to the extent mentioned in the notification published on June 30, 2016? 4. Whether the notification published on June 30, 2016 and the reasoned decision and corrigendum on which it is based are in violation of Article 14 of the Constitution of India and thus were rightly quashed? 5. Whether the appellants in MAT 1443 of 2017 were estopped from preventing them from plying their stage carriages on the said routes after increase of the fleet strength, the operation of this estoppel was so equitable, that the Court acting under Article 226 of the Constitution of India or even as an appellate court, should hesitate before intervening in the matter to the prejudice of these appellants, in the facts and circumstances of the case?

Ratio Decidendi: 1. The notification dated August 2, 2004, published on August 6, 2004, was not ultra vires Section 71(3)(a) of the said Act of 1988 and there was no infirmity in it being regulatory as the statutory process itself envisaged. 2. The notification published on June 30, 2016 is not deemed to have modified the notification published on August 6, 2004 and that the power to create includes the power to destroy and also the power to alter what is created, taking an inspiration from Section 21 of the General Clauses Act, because the notification published on June 30, 2016 is absolutely silent about the restrictions operating on the State because of the notification published on August 6, 2004 and the judicial pronouncement making it binding, in this regard. 3. The two notifications cannot coexist harmoniously, provided we hold that the notification published on August 6, 2004 was modified to the extent mentioned in the notification published on June 30, 2016 because the notification published on June 30, 2016 is absolutely silent about the restrictions operating on the State because of the notification published on August 6, 2004 and the judicial pronouncement making it binding, in this regard. 4. The notification published on June 30, 2016 and the reasoned decision and corrigendum on which it is based are in violation of Article 14 of the Constitution of India and thus were rightly quashed because the principles of natural justice were grossly violated in the decision-making process behind the decision dated January 22, 2016 which was the basis of the said notification published on June 30, 2016 and therefore, they are in violation of Article 14 of the Constitution of India and thus were rightly quashed. 5. The appellants in MAT 1443 of 2017 were not estopped from preventing them from plying their stage carriages on the said routes after increase of the fleet strength, the operation of this estoppel was not so equitable, that the Court acting under Article 226 of the Constitution of India or even as an appellate court, should hesitate before intervening in the matter to the prejudice of these appellants, in the facts and circumstances of the case because such litigations have been discouraged by the Hon'ble Supreme Court inter alia in the decision reported in [ DATTARAJ NATHUJI THAWARE-v-STATE OF MAHARASHTRA AND OTHERS, 2005 AIR(SC) 540 ] and [ Kushum Lata-v-UNION OF INDIA AND OTHERS, 2006 AIR(SC) 2643 ] to name but two of the catenae of decisions on the point.

Final Decision: The appeals are dismissed and the quashing of the impugned reasoned order dated January 22, 2016, its correction by way of a corrigendum dated March 4, 2016, and the notification dated June 17, 2016 published in the Official Gazette Extraordinary Part I on August 6, 2004 and in strict compliance therewith, and in compliance with the judgment in the case of Sujata Ganguly (supra), as expeditiously as possible, but positively within a period of three months from the date of communication of this order and give effect thereto.