GA No. 1142 of 2011
WP No. 1062 of 2010
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Prasun Banerjee and; Others
Versus
The State of West Bengal and; Others
Before:
The Hon'ble Justice Debasish Kar Gupta
Date: 22nd November 2011
Appearance:
Mr. D. Saha Roy, Advocate
Mr. R. A. Agarwal, Advocate
Mr. Rameswar Bhattacharjee
Mr. Ram Uday Bhattacahrya, Advocate
GA No. 1142 of 2011
This is an application filed by the applicant for his addition in the writ application bearing no. WP No. 1062 of 2010 as party respondent to the above proceeding.
The subject matter of challenge in the writ application is an order dated August 6, 2010 passed by the Additional Chief Secretary to the Government of West Bengal, Transport Department directing the concerned Regional Transport Authorities to stop plying of buses in route no. 219/1 via Lake Town Link Road.
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A permanent stage carriage permit was issued in the year 2001 in favour of the applicant to ply his vehicle (bus) on a notified route no. L238 from Barasat to Howrah Station via Jessore Road, VIP Road and Mahatma Gandhi Road.
The writ petitioner was an operator of a permanent stage carriage permit issued in his favour to ply on a notified route no. 219 his vehicle from Nagerbazar to Howrah Station via Rod Kol, Bangur Avenue, Paikpara, Shyambazaar, Bidhan Sarani, Grey Street, College Street, M. G. Road Crossing, Burrabaza. A bye-route was created by the Regional Transport Authority, Kolkata in terms of its resolution dated June 11, 2010 to allow some of the operators in respect of notified route no. 219 from Nagerbazar to Howrah, including the petitioner to ply their vehicles (buses) on the bye- route from Nagerbazar to Howrah Fire Service Station via Lake Town, VIP Road, Ultadanga More, Bidhan Nagar Railway Station, APC Road, Maniktala Girish Park M. G. Road and thereafter to catch their alignments mentioned in their stage carriage permits up to the terminal point of Howrah Station.
By virtue of the impugned order the Additional Chief Secretary to the Government of West Bengal, Transport Department directed the concerned Regional Transport Authority to take immediate steps for stopping of plying of buses on the route no. 219/1 via Lake Town Link Road taking into consideration that route no. L238 on which the applicant 3
plies his vehicle as also route no. 219 on which the writ petitioner plies his vehicle were notified routes and the maximum limit of granting stage carriage permits had been fixed by a notification issued under Section 71(3)(a) of the Motor Vehicles Act, 1988 to 25 and 45 respectively in respect of the aforesaid routes.
According to the applicant, the creation of bye-route of route no. 219 caused plying of vehicle of the writ petitioner touching alignment of another notified route on which the petitioner had been plying his vehicle on the basis of a valid permit in respect of a notified route. The cancellation of that bye-route is under challenge in the above writ application. Therefore, his presence at the time of hearing of the writ application is necessary for proper adjudication of the issue involved in this writ application. According to him, he was a person aggrieved due to creation of the bye-route under reference. Therefore, if any order is passed deciding the issue of validity of creation of that bye-route he may suffer legal wrong or injury allowing the writ petitioner to interfere with his right of plying vehicle on a route, the maximum number of vehicles in respect of which have been limited/restricted in exercise of power conferred by Section 71(3)(a) of the Motor Vehicles Act, 1988 behind his back. No objection is raised by the learned Counsel appearing on behalf of the State-respondents with regard to the above submissions made on behalf of the applicant.
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The submissions made on behalf of the applicant are opposed by the learned Counsel appearing for the writ petitioner. According to him, the applicant has no locus standi to take part in the proceeding under reference. According to him, the applicant is an existing operator of his vehicle on a route on the strength of a valid permit and he cannot raise any objection for permitting others to ply vehicles touching the alignment of his route. According to him, the applicant is not a necessary party having no grievance or interest on the issue of creation of a bye-route touching the alignment of a route on which the applicant had been plying his vehicle. According to the learned Counsel, the petitioner had no statutory right under the provisions of the Motor Vehicles Act, 1988 to stand in the way of plying the vehicle of the writ petitioner on the bye-route in view of the liberalised policy of the Motor Vehicles Act.
Learned Counsel appearing on behalf of the writ petitioner relies upon the decisions of Sanjit Chakraborty v. State of West Bengal and; Ors. reported in AIR 207 Calcutta 252; Sekhar Chatterjee, Achyutanonda Chatterjee vs. Abdur Rahim Mondal and; Ors. reported in 2008 (1) CHN 1096; Mithilesh Garg v. Union of India and; Ors. reported in AIR 1992 SC 443; Jasbhai Motibhai Desai vs. Roshan Kumar reported in AIR 1976 SC 578; Abdul Hai Khan v. Subal Chandra Ghose reported in AIR 2002 SC 1742 and an unreported judgment dated September 2, 2011 delivered by a 5
Single Bench of this Court in the matter of Sk. Nizamuddin vs. State of West Bengal and; Ors. (In Re: WP No. 9856 (W) of 2011). I have heard learned Counsel appearing for the respective parties at length on the preliminary objection raised by the writ petitioner in respect of the application filed by the applicant for addition of party. Admittedly, the writ petitioner and the applicant have been plying their respective vehicles on two different routes. It is also not in dispute that by virtue of a notification no. 2129-W.T./8S-50/2000-PT. III dated May 7, 2003 issued by the Government of West Bengal, Transport Department in exercise of power conferred by clause (a) of sub-section 3 of Section 71 of the Motor Vehicles Act, 1988. The route nos. 219 as also L238, the routes on which the writ petitioner and the applicant have been plying their respective vehicles, have been declared as notified routes restricting the maximum of permits to be issued in respect of those routes. It is an admitted position that the creation of bye-route allowing the writ petitioner to ply his vehicle amongst other vehicles on the bye-route caused touching of the alignment of the route mentioned in the permit of the applicant. It was cancelled by the State Government considering the provisions of clause (a) of sub-section (3) of Section 71 of the Motor Vehicles Act, 1988. Therefore, the issue involved in the writ application is the scope of creation of a bye-route to enable the operators of a notified route to ply their vehicles (buses) touching the alignment of another 6
notified route where there is no scope to issue new permit in view of the restriction imposed by way of notification fixing the maximum number of stage carriage permit. Since the issue involved in the writ application affects the interest of the applicant to examine his right to ply his vehicle on a notified route and the question of infringement of his right depends upon the validity and the legality of the action of the respondent-authority in allowing operators of other notified route/routes on the route on which he has been plying his bas, he is a party interested in the matter. Therefore, for proper adjudication of this case his presence is necessary. Reference may be made to the decision of Jasbhai Motibhai Desai (supra) and the relevant portions of the above decision are quoted below: "38. To distinguish such applicants from 'strangers', among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense, that his interest, recognised by law, has been prejudicially and directly affected by the act or omission of the authority, complained off? Is he a person who has suffered a legal grievance, a person "against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something? 7
Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of the words "person aggrieved" is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community? Or is it a statute dealing with private rights of particular individuals?"
I do not find that the decisions of Sanjit Chakraborty (supra), Sekhar Chatterjee, Achyutanonda Chatterjee (supra), Mithilesh Garg (supra), Abdul Hai Khan (supra) and the unreported decision in the matter of Sk. Nizamuddin vs. State of West Bengal and; Ors. have any manner of application in this case simply for the reason that in none of the above cases the right to challenge the validity of action of the State authority or transport authority to allow operators of any notified route to ply their vehicles on another notified route creating a bye-route has not been examined in the light of the provisions of clause (a) of sub-section (3) of Section 71 of the Motor Vehicles Act, 1988. After careful consideration of all the above cases I do not find that all those decisions relate to the routes in respect of which no restriction was imposed in exercise of the above provisions of the Motor Vehicles Act limiting the maximum number of 8
permits. Taking the words of a judgment, as they are words in a legislative enactment and the disposal of the cases placing reliance on them without indicating its applicability is improper. Reference may be made to the decision of Punjab National Bank v. R. L. Vaid and; Others reported in AIR 2004 SC 4269 relevant portion of which is quoted below: "5. We find that the High Court has merely referred to the decision in R.K. Jain's case (supra) without even indicating as to applicability of the said decision and as to how it has any relevance to the facts of the case. It would have been proper for the High Court to indicate the reasons and also to spell out clearly as to the applicability of the decision to the facts of the case. There is also peril in treating the words of a judgment as though they are words in a Legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a difference between conclusions in two cases. Disposal of cases by merely placing reliance on a decision is not proper. Precedent should be followed only so far as it marks the path of justice, but you must cut out the dead wood and trim off the side branches else you will find yourself lost in thickets and branches, said Lord Denning, while speaking in the matter of applying precedents. The impugned order is certainly vague."
In view of the above, those are not the precedence under Article 141 of the Constitution of India so far as the instant case is concerned. 9
In view of the discussions and observations made hereinabove, this application is allowed.
The Department is directed to take necessary steps to incorporate the applicant as party-respondent in the above writ application. The writ petitioner is directed to serve a copy of this writ application upon him in course of the day.
There will be no order as to costs.
WP No. 1062 of 2010
On the prayer made on behalf of the State-respondent time to file affidavit-in-opposition is extended by a period of two weeks from date. Affidavit-in-opposition by the newly added respondent, if any, be filed within two weeks from date. Replies thereto if any, may be filed within one week thereafter. Let this matter be added in the monthly combined list of January, 2012 along with the application for vacating interim order bearing GA No. 1143 of 2011.
All parties are to act on a signed photocopy of this order on the usual undertakings.
(Debasish Kar Gupta, J.)
R. Bose
AR(CR)