Ashok Panda v. The State Of West Bengal And ORS
ORDER SHEET WPO/612/2019 IA No: GA/1/2020 (Old No:GA/617/2020)
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction ORIGINAL SIDE Ashok Panda.
Versus
The State of West Bengal & Ors.
BEFORE:
The Hon'ble JUSTICE ANIRUDDHA ROY Date : 13th January, 2023.
Mr. Arabinda Chatterjee, Sr. Adv.
with Mr. Bhaskar Nandi, Adv.
... for petitioner.
Mr. Amal Kr. Sen with Mr. Lal Mohan Basu, Advs.
... for State respondents.
Mr. Partha Sarathi Bhattacharyya, Sr. Adv.
with Sk. Samim Akhtar, Mr. A. Maiti & Mr. Rajiv Bhattacharyya, Advs.
... for respondent nos.6,8-13,16,18-26,28 & 29. 1.
The petitioner claimed to be a holder of a Permanent Stage Carriage Permit bearing No. P.St.P 178/2015 (I/R) issued by the State Transport Authority, West Bengal being the respondent no.2 herein. The petitioner after holding the said permit has been operating his vehicle bearing registration No. WB 31/7179 at the route plying from Bargachia to Rajarhat Newtown (Unitech) via Domjur, Maturdaha, Solap, Kona Expressway, Santragachi, Belepole, Vidyasagar Setu, PTS, Rabindra Sadan, A. J. C. Bose Road, Beak Bagam, Moulali, Sealdah, Sales Tax, Beleghata, CIT Building, Chingrighata,
Nicco Park, College More, Sector V, SDF Building, Technopolish, Narkel Bagan, Tata Centre Hospital.
2.
In or about December, 2019 the petitioner noticed that the State Transport Authority, West Bengal had gone to issue several Stage Carriage Permits in the inter-regional route from Dhulagori (Howrah) to Hatisala (South 24 Parganas) via Ankurhati (Howrah), Santragachi Mandirtala/ Vidyasagar Setu, PTS, Exide More, Minto Park, Beck Bagan, Park Circus 7 Point, Park Circus Stations/4 No., Science City, Chingrighata, Sector V, SDF, New Town, Unitech Ecospace, Aliah University (Kolkata), Rajarhat Narayana School, Kalurmore (North 24 Parganas) (for short, the said routes) in favour of the respondent nos. 5 to 35. Upon enquiry the petitioner came to learn that the Transport Authority in its alleged meeting dated September 27, 2019 under agenda no.28 bearing serial nos.
92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 117, 118, 122, 123, 134, 142 and 143 (the impugned routes) Annexure P2 to the writ petition, already decided to grant such permits in favour of those private respondents. The petitioner had challenged the said decision of the Transport Authority as enumerated in its said agenda No.
"a) A writ of or in the nature of Mandamus commanding the respondents, their men, agents, servants, subordinates and each one of them to cancel, rescind, withdraw and/or set aside the impugned resolution adopted by the Respondent No.2 in its meeting dated 27.09.2019- vide Agenda No.28 being Serial Nos. 92 to 114, 117 & 118, 122 & 123, 134, 142 & 143 thereby allowing the prayer of the Private Respondent Nos. 5 to 34 for grant of permanent stage carriage permit in the proposed route in question as the same was taken in clear violation to
notification being No.765/WT/3M-12/2013 Dated 08.03.2013 read with Notification being No. 3838-WT/TR/3M-51/2010 Dated 03.10.2016 issued by the Transport Department, Government of West Bengal (being Annexure P/2) forthwith;
b) A writ in the nature of Certiorari calling upon the respondents, their men, agents, servants, subordinates and each one of them to certify and transmit the relevant records pertaining to the present case and produce the same before this Hon'ble Court so that conscionable justice be rendered by quashing the impugned resolution adopted by the Respondent No.2 in its meeting dated 27.09.2019 - vide Agenda No. 28 being Serial Nos. 92 to 114, 117 & 118, 122 & 123, 134, 142 & 143 thereby allowing the prayer of the Private Respondent Nos. 5 to 34 for grant of permanent stage carriage permit in the proposed route in question as the same was taken in clear violation to the notification being No. 765/WT/3M-12/2013 Dated 08.03.2013 read with Notification being No. 3838-WT/TR/3M-51/2010 Dated 03.10.2016 issued by the Transport Department, Government of West Bengal (being Annexure P/2) forthwith;
c) Rule NISI in terms of the prayers (a) and (b) as hereinabove; d) Interim order of injunction restraining the respondents, their men, agents, servants, subordinates and each one of them from giving any effect or further effect to the impugned resolution adopted by the Respondent No.2 in its meeting dated 27.09.2019 - vide Agenda No.28 being Serial Nos. 92 to 114, 117 & 118, 122 & 123, 134, 142 & 143 thereby allowing the prayer of the Private Respondent Nos. 5 to 34 for grant of permanent stage carriage permit in the proposed route in question in any manner whatsoever till the disposal of the rule; e) Interim order of injunction thereby staying the operation of the Offer Letters, if any, issued in favour of the Private Respondent Nos.
5 to 34 for grant of permanent stage carriage permit in the proposed route in question in terms of the impugned resolution adopted by the Respondent No.2 in its meeting dated 27.09.2019 --vide Agenda No.28 being Serial Nos.
g) Make the Rule absolute, if no cause or insufficient causes are being shown; h) Costs of and incidentals pertaining to the instant case; i) Such other further order or orders as Your Lordship may deem fit and proper." 3.
Pursuant to the directions made by the Court, affidavits were filed and exchanged by and between the parties save and except the respondent nos. 2, 3 and 4 who chose not to file any affidavit-in-opposition. The petitioner filed its affidavit-in-reply thereto.
4.
Pursuant to the directions by this Court, the State respondents through the Special Secretary, Transport Department, affirmed an affidavit on January 10, 2023 disclosing the Gazette Notifications dated October 21, 2016 and December 8, 2017. The State respondents through the Deputy Commissioner of Police, Detective Department, Bidhannagar Police Station affirmed an affidavit on September 26, 2022 disclosing one corrigendum issued by the Regional Transport Authority, North 24 Parganas dated August 26, 2022 and another communication issued by the Inspector-in-Charge, Rajarhat Police Station dated August 25, 2022.
5.
The private respondents, who were represented through Mr. Partha Sarathi Bhattacharyya, learned Senior Counsel, filed an exception affidavit affirmed on November 15, 2022 disclosing a notification of the Transport Department dated December 7, 2017, an order passed by the Coordinate Bench dated December 20, 2019 in this writ petition and an anonymous unauthenticated document marked as 'Ex-2' thereto.
6.
Mr. Arabinda Chatterjee, learned Senior Counsel appearing for the writ petitioner submitted that, the power of the Transport Authority regarding grant of permit in respect of common inter-regional route is governed under Section 69 of the Motor Vehicles Act, 1988 (for short 'the said 1988 Act'). He submitted that, every application for a permit shall be made to the Regional Transport Authority of the region in which it proposed to use the vehicle or vehicles provided that, if one proposes to use a vehicle or vehicles in two or more regions lying within the same state, the application shall be made to the Regional
Transport Authority of the region in which the major portion of the proposed route or area lies and in case the portion of the proposed route or area in each of the regions is approximately equal, to the Regional Transport Authority in which it proposed to keep the vehicle or vehicles. He submitted that the Regional Transport Authority may process applications for permit for vehicles in more than two regions. In this case, he relied upon a notification bearing no.765/NT/3M-12/2013 dated March 8, 2013 whereunder it was directed that applications for permit for all kinds of vehicles that would ply in three regions lying within the same State, would be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies and in case the proposed route or area is approximately equal, to the Regional Transport Authority to the region in which it is proposed to keep the vehicle or vehicles, Annexure P-3 to the writ petition.
7.
Subsequent to the issuance of the said notification dated March 8, 2013, the Transport Department of the State in exercise of its power under Section 68(1) of the said 1988 Act read with Rule 83(1) of the West Bengal Motor Vehicles Rule, 1989 (in short the said Rule) issued another notification bearing no.3838-WT/TR/3M-51/2010 dated October 3, 2016, whereunder it was declared that the jurisdiction of the Regional Transport Authority, Kolkata would be expanded and would comprise of the combined area of the Police Commissionerates at Kolkata, Howrah, Barrackpore and Bidhannagar with immediate effect. The said notification was duly published in Calcutta Gazette on October 21, 2016 being Annexure P-4 to the writ petition. Mr. Chatterjee
submitted that from the said notification dated October 21, 2016, it appeared that on and from October 21, 2016, the combined areas of Kolkata, Howrah, Barrackpore and Bidhannagar Police Commissionerates were to be treated under the jurisdiction of the Regional Transport Authority, Kolkata. 8.
Mr. Chatterjee further submitted that, on harmonious construction of the said two notifications dated March 8, 2013 and October 3, 2016, the concerned State Transport Authority has the authority to process the applications for permit of all kinds of vehicles that would ply in more than three regions lying within the same State and for the purpose of determination of boundary of Kolkata Region, the jurisdiction of the Regional Transport Authority, Kolkata was determined and extended upto Kolkata, Howrah, Barrackpore and Bidhannagar with effect from October 21, 2016. He submitted that, the applications for permit for all kinds of vehicles that would ply in more than three regions or plying within the three regions, the State Transport Authority, West Bengal after taking into account of the new jurisdictional periphery of the Regional Transport Authority, Kolkata was extended by adding the Police Commissionerates at Kolkata, Howrah, Barrackpore and Bidhannagar with effect from October 21, 2016.
9.
Learned Senior Counsel for the petitioner then referred to the Annexure P2 to the writ petition and by specifically referring to the serial numbers as mentioned in paragraph 2 above, submitted that the private respondents upon their applications, obtained permit in terms of the said Agenda No.28 of the meeting of the Transport Authority held on September 27, 2019 in respect of
the said serial nos. mentioned in paragraph 2 above totally in violation of the provisions of law and the resolution adopted by the State Transport Authority (for short 'STA') was not only illegal and wrongful, but also wholly without jurisdiction.
10.
Mr. Chatterjee submitted that, in this case the said Agenda no.28 adopted by the STA in its meeting dated September 27, 2019 in respect of the said serial numbers mentioned in paragraph 2 above, should be set aside and quashed. 11.
Mr. Sen, learned Counsel appearing for the State respondents, first placed reliance on the affidavit affirmed by the Special Secretary, Transport Department and submitted that the Gazette Notifications mentioned therein dated October 21, 2016 and December 8, 2017, speak for themselves. Mr. Sen referred to the provisions of the said 1988 Act and submitted that Sections 68 and 69 under Chapter V of the said 1988 Act deal with grant of permit only and the issues concerned thereto. This chapter does not deal with any other or further functions of the Motor Vehicle Department. This Chapter also deals with the formation, setup and functions of the respective Regional Transport Authorities as sell as the State Transport Authority. He submitted that, this notification dated December 8, 2017 was no way connected with any function relating to the permit and the same did not touch or concern with the territorial jurisdiction of the Regional Transport Authority, Kolkata.
12.
Relying upon the affidavit filed by the Deputy Commissioner of Police, Detective Department, Bidhannagar Police Commissionerate, Mr. Sen submitted that, the Rajarhat Narayana School and Kalur More, both the areas fall within
the jurisdiction of the Rajarhat Police Station, Bidhannagar Police Commissionerate, as would be evident from Annexure B to the said affidavit. 13.
Mr. Bhattacharyya, learned Senior Counsel appearing for the private respondents, who opposed this writ petition, referring to his clients' affidavit-inopposition and the exception affidavit, submitted that from the notification issued by the Transport Department dated December 7, 2017, enclosed as Ex-1 to the said affidavit, the Rajarhat Police Station not being mentioned in the said notification, it cannot be construed that the same being a part of the Bidhannagar Police Commissionerate. Therefore, he submitted that, this Rajarhat Narayana School and Kalur More cannot be construed to be within the jurisdiction of the Bidhannagar Police Commissionerate and as such there was no violation of law in adopting the said Agenda no.28 and the serial numbers mentioned in paragraph 2 above by the STA while issuing the permit in favour of the private respondents. He submitted that, Rajarhat Police Station belongs to the territorial jurisdiction of the North 24 Parganas and not under the territorial jurisdiction of Bidhannagar Police Commissionerate. 14.
Considering the rival contentions raised on behalf of the appearing parties and considering the materials on record, before dealing with the issue involved in this writ petition, the relevant provisions from the said 1988 Act and the said Rule are quoted below:
"S. 68. Transport Authorities. - (1) The State Government shall, by notification in the Official Gazette, constitute for the State a State Transport Authority to exercise and discharge the powers and functions specified in sub-section (3), and shall in like manner constitute Regional Transport Authorities to exercise and discharge throughout such areas (in this Chapter referred to as regions) as may be specified in the notification, in respect of each Regional Transport Authority, the powers and functions conferred by or under this Chapter on such Authorities:
Provided that in the Union Territories, the Administrator my abstain from constituting any Regional Transport Authority.
Provided further that the State Government may, - (i) where it considers necessary or expedient so to do, constitute the State Transport Authority or a Regional Transport Authority for any region so as to consist of only one member who shall be an official with judicial experience or experience as an appellate or a revisional authority or as an adjudicating authority competent to pass any order or take any decision under any law; (ii) by rules made in this behalf, provide for the transaction of business of such authority in the absence of the Chairman or any other member and specify the circumstances under which, and the manner in which, such business could be so transacted:
Provided also that nothing in this sub-section shall be construed as debarring an official (other than an official connected directly with the management or operation of a transport undertaking) form being appointed or continuing as a member of any such authority merely by reason of the fact that the Government employing the official has, or acquires, any financial interest in a transport undertaking.
(3) The State Transport Authority and every Regional Transport Authority shall given effect to any directions issued under section 67 and the State Transport Authority shall, subject to such directions and save as otherwise provided by or under this Act, exercise and discharge throughout the State the following powers and functions namely, - (a) to co-ordinate and regulate the activities and policies of the Regional Transport Authorities, if any, of the State;
(b) to perform the duties of a Regional Transport Authority where there is no such Authority and, if it thinks fit or if so required by a Regional Transport
Authority, to perform those duties in respect of any route common to two or more regions;
(c) to settle all disputes and decide all matters on which differences of opinion arises between Regional Transport Authorites; [(ca) Government to formulate routes for plying stage carriages; and] (d) to discharge such other functions as may be prescribed. (4) For the purpose of exercising and discharging the powers and functions specified in sub-section (3), a State Transpot Authority may, subject to such conditions as may be prescribed, issue directions to any Regional Transport Authority, and the Regional Transport Authority shall, in the discharge of its functions under this Act, give effect to and be guided by such directions. (5) The State Transport Authority and any Regional Transport Authority, if authorised in this behalf by rules made under section 96, may delegate such of its powers and functions to such authority or person subject to such restrictions, limitations and conditions as may be prescribed by the said rules. S. 69. General provision as to applications for permits. -
(1) Every application for a permit shall be made to the Regional Transport Authority of the region in which it is proposed to use the vehicle or vehicles.: Provided that if it is proposed to use the vehicle or vehicles in two or more regions lying within the same State, the application shall be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies, and in case the portion of the proposed route or area in each of the regions is approximately equal, to the Regional Transport Authority of the region in which it is proposed to keep the vehicle or vehicles: Provided further that if it is proposed to use the vehicle or vehicles in two or more regions lying in different States, the application shall be made to the Regional Transport Authority of the region in which the applicant resides or has his principal place of business.
(2) Notwithstanding anything contained in sub-section (1), the State Government may, by notification in the Official Gazette, direct that in the case of any vehicle or vehicles proposed to be used in two or more regions lying in different States, the application under that sub-section shall be made to the State Transport Authority of the region in which the applicant resides or has his principal place of business."
"Rule 52. Registering authority. -The registering authority shall be- (i) for [Kolkata], the Director, Public Vehicles Department, [Kolkata], (ii) elsewhere in the State, the District Magistrate, excepting that the District Magistrate, 24-Parganas (North) shall not be the registering authority in respect of areas under Salt Lake and Lake Town police stations :
Provided that the registering authority may delegate its power, by order in writing, to any officer not below the rank of Motor Vehicles Inspectors having jurisdiction. Rule 83. (1) The State Government may constitute Regional Transport Authority with one or more revenue districts or with such areas of a District or Districts as it considers necessary and expedient and may, for each such region, constitute a Regional Transport Authority under section 68 of the Act.
(2) whenever the State Government constitutes a Regional Transport Authority, it shall appoint an officer in the service of the State Government to be its Chairman subject to the provisions under section 68 of the Act and also appoint an officer in the service of the State Government to be its Secretary and such officer may or may not be a member of the Transport Authority : Provided that in the case of a Regional Transport Authority consisting of single official, it shall not be necessary to appoint the Chairman of the Transport Authority and any reference in these rules to the Chairman of the Transport Authority shall be deemed to be a reference to the official constituting the Transport Authority.
(3) The State Government may, subject to the provisions of section 68 of the Act, constitute for a region a Regional Transport Authority with such number of officials or non-officials as members other than the Chairman, as it thinks necessary.
(4) All the provisions of rules 77 to 82 of these rules shall mutatis mutandis apply in respect of the Regional Transport Authority as if the expression "State Transport Authority" wherever it occurs has been substituted by the expression "Regional Transport Authority".
15.
On a careful reading of the above provisions from the 1988 Act, it appears to this Court that, sub-section (3) to Section 68 inter alia provides that the State Transport Authority and every Regional Transport Authority shall give effect to any directions issued under Section 67 and the State Transport Authority shall, subject to such direction and save as otherwise provided by or under Act, exercise and discharge throughout the State the functions mentioned thereunder which include inter alia to perform the duties of the Regional Transport authority and where there is no such Authority and, if it thinks fit or if so required by a Regional Transport Authority, to perform those duties in respect of any route common to two or more regions. Section 69 of the 1988 Act inter alia spelt out that every application for a permit shall be made to the Regional Transport
authority of the region in which it is proposed to use the vehicle or vehicles. The proviso laid down that if it is so proposed to use the vehicle or vehicles in two or more regions lying within the same State, the application should be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies and in case the portion of the proposed route or area in each of the regions is approximately equal, to the Regional Transport Authority of the region in which it is proposed to keep the vehicle or vehicles. 16.
From a meaningful reading of Rule 52 of the said Rules, it appears that the Registering Authority for Kolkata would be the Director, Public Vehicles Department, (PVD), Kolkata.
17.
On a combined and harmonious reading and construction of the above provisions, this Court is of the firm view that, Sections 68 and 69 under Chapter V to the statute deal with the permit only and the allied incidents relating to the permit only whereas the Rule 52 relates to registration of the vehicle. 18.
The notification dated December 8, 2017, Annexure R-2 to the affidavit filed by the Special Secretary, Transport Department, merely had segregated and bifurcated the jurisdiction of the Public Vehicles Department offices and four jurisdictional offices were created under the same notification viz. Beltala, Kasba, Salt Lake and Behala. The Salt Lake Public Vehicle Department included the Police Station at New Town, but this notification only dealt with the functions other than the grant of permit or issuance of permit and the jurisdiction of the Public Vehicles Department (PVD) was not meant and determined for issuing or granting of permit. Therefore, the said notification
dated December 8, 2017 has no bearing or relevance in deciding the issue involved in this writ petition in granting permit. 19.
On a meaningful reading of the provisions laid down in the gazette notification dated October 21, 2016, Annexure P-4 at pg.73 to the writ petition, it appears to this Court that, in exercise of the power conferred under subSection (1) Section 68 of the 1998 Act read with sub-Rule (1) to Rule 83 of the said Rule, the jurisdiction of the Regional Transport Authority (RTA), Kolkata, was expanded and comprised with an immediate effect of the combined areas of the Police Commissionerate of Kolkata, Howrah, Barrackpore and Bidhannagar in the manner and for the purpose mentioned therein. This notification was issued in exercise of power under Section 68 under Chapter V of the statute which dealt with the permit and not with any other function of the Motor Vehicle Department.
Clause 6 of the said notification dated October 21, 2016 provided that notwithstanding whatever was stated therein, the Director, PVD would continue to act as the Registering Authority and the Licensing Authority for the areas under the Kolkata Police and the Police Station under MKDA, Salt Lake and Lake Town of West Bengal Police. This again made it clear to this Court that, the jurisdictional authority of the PVD included all other functions save and except grant of permit and any issues relating thereto. Annexure B to the affidavit affirmed by the Police Authority of Bidhannagar Police Commissionerate further confirmed that, Rajarhat Narayana School and Kalur More are within the jurisdiction of the Rajarhat Police Station under Bidhannagar Plice Comissionerate.
20.
Inter alia, the relevant serial numbers S.L. No.92 under Agenda 28 adopted by STA in its meeting dated September 27, 2019 for better appraisal is quoted below:
Details as per FORM-1 submitted by the Applicant Sl.
No .
Docket No & Date Name of Applicant and Address Decisions taken in the meeting Detailed Route Alignment opted No of District s with name to be covered Service Opted Seating Capacity opted Types of Vehicle opted 40021.08.2 Rahul Chatterjee, 38/3/4 South Baksara 1st Bye Lane, Po- Danesh Sk Lane, PsAJC Botanic, DistHowrah, Pin-711109 Dhulagori (Howrah) to Hatisala (South Pgs) via Ankurhati (Howrah), Santragachi, Mandirtala/Vidyasagar Setu, PTS, Exide More, Minto Park/Beck Bagan, Park Circus 7 Point, Park Circus Station/4 no, Science City, Chingrighata, SectorV, SDF, University (Kolkata), Rajarhat Narayan School, Kalurmore (North 24 Pgs) Four - Howrah ,Kolkata, North 24 Pgs, South 24 Pgs Ordinary Service Not less than 30+1 and Not more than 40+1 BusBS-IV The application would be considered as approved subject to conditions that, the applicant would submit detail route alignment showing specific stops etc.
without touching any area restricted under Notification No.3438WTV3M-139/ dated 02.08.2004 i.e the Central Business District, viz.
Esplanade and Band Stand in Kolkata and Howrah Station and approach areas of Howrah Bridge (Rabindra Setu).
The applicant has to place vehicle having latest
BS norms for obtaining permit.
21.
From the above, it would be evident that the detailed route alignment opted for by the private respondents made it clear that, four districts Howrah, Kolkata, North 24 Parganas and South 24 Parganas as regions. 22.
In view of the discussions and analysis made above, it would be clear that, the Rajarhat Narayana School and Kalur More being within the jurisdiction of Bidhannagar Commissionerate comes within the purview and jurisdiction of the Regional Transport Authority, Kolkata. Therefore, the three regions' actual existence in the said Sl. No.92 and other serial numbers mentioned in Paragraph 2 above, while granting permit to the private respondents by STA by way of adopting Agenda no.28 in its meeting dated September 21, 2019, were not permissible in view of the notification dated March 8, 2013. 23.
For the foregoing reasons and discussions the said Agenda no.28 adopted by STA in its meeting dated September 27, 2019 in so far as it concerned the serial numbers as mentioned in paragraph 2 above and in prayer (a) to the writ petition stands set aside and quashed. Consequently, any step or further steps taken thereunder stand set aside and quashed. 24.
This order shall, however, not preclude the appropriate authority to consider the applications of the private respondents, if submitted afresh, strictly in accordance with law and positively within a period of four weeks from the date of receiving such applications.
25.
With the above observations the writ petition being WPO/612/2019 stands allowed. In that view of the matter, the interlocutory application filed by Mr. Bhattacharyya's client being GA/617/2020 resultantly stands dismissed. 26.
There shall, however, be no order as to costs. (ANIRUDDHA ROY, J.) K. Banerjee/mg A.Rs. [C.R.]