Gouranga Biswas vs The State Of West Bengal & Ors
2022 Latest Caselaw 1720 Cal

                                       1


                       IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                              APPELLATE SIDE

Present:
The Hon'ble Justice Moushumi Bhattacharya

                             WPA 18922 of 2018
                                     With
                              IA No. CAN 2 of 2021


                               Gouranga Biswas
                                      Vs.
                        The State of West Bengal & Ors.

For the Petitioner                    : Mr. Arabinda Chatterjee, Adv.
                                       Ms. Kakali Dutta, Adv.
                                       Mr. Arkadipta Sengupta, Adv.
                                       Mr. Subhajit Das, Adv.

For the State                         : Mr. Amal Kumar Sen, Adv.
                                       Mr. Lal Mohan Basu, Adv.
                                       Ms. Ashima Das (Sil), Adv.

For the Respondent no. 5              : Mr. Bhaskar Nandi, Adv.


For the Respondent no. 6              : Mr. B. K. Samanta, Adv.

Last Heard on                         : 16.03.2022.


Judgment on                           : 01.04.2022.



Moushumi Bhattacharya, J.

1. The petitioner prays for quashing of a resolution dated 27th June,

2018 held at the Board meeting of the Regional Transport Authority (RTA),

Kolkata. The permit of the petitioner was cancelled by the said decision. The

impugned decision was passed by the RTA pursuant to an order of a

Coordinate Bench dated 15th May, 2018 by directing the authorities to

dispose of the proceedings after giving an opportunity of hearing to all the

parties. The said order was passed in a writ petition filed by the private

respondent no. 5.

2. It appears from the submissions made by learned counsel on behalf of

the petitioner that the petitioner purchased a chassis from the dealer on

25th June, 2011 which was thereafter developed into a fully built-up bus.

The petitioner registered the vehicle on 10th September, 2011 upon placing a

fully functional bus. The petitioner submitted fees for obtaining the

registration certificate and the permit was granted on 14th September, 2011

after completion of all formalities. The private respondent no. 5 filed a writ

petition being W.P. No. 4925(W) of 2018 against grant of permit to the

petitioner which was disposed of by the order dated 15th May, 2018. Counsel

submits that after passing of the impugned order, an application was made

by the petitioner under The Right to Information Act, 2005 seeking

information as to the status of the petitioner's vehicle which was presented

for registration. The Registering Authority replied to the petitioner's

application by forwarding particulars of the vehicles which were available in

their database from which would appear that the fully functional bus was

presented by the petitioner to the Registering Authority for registration.

3. According to learned counsel appearing for the State, the automobile

dealer offered "Tata Diesel Chassis" to the petitioner for a sum of

Rs.9,33,945/- but that the proforma invoice shows that the invoices were

issued without any commitment of delivery. Counsel submits that the

receipt for payment of the vehicle does not show that any bus chassis was

handed over to the petitioner on the basis of such receipt. Counsel places

emphasis on the fact that the automobile dealer handed over a chassis

worth Rs. 10 lacs to the petitioner against a down payment of Rs. 5,000/-

which is also not corroborated from any of the documents produced by the

petitioner.

4. Upon hearing learned counsel, the primary dispute appears to be that

the RTA could not accept that the petitioner could develop a complete "bus

body" within 48 hours. The RTA found the chain of events presented by the

petitioner to be factually unbelievable. The RTA hence concluded that the

petitioner/permit-holder had obtained the permit without fulfilling the

condition of presenting a fully built up bus as required in law. The

petitioner's permit was cancelled on this basis.

5. The impugned order dated 27th June, 2018 passed by the RTA

cancelling the petitioner's permit is solely based on the presumption that a

"bus body" cannot be built within "24/36/48 hours". The RTA narrates the

sequence of events in brief in that the petitioner purchased the chassis of

the vehicle on 12.09.2011 and got the same registered on 14.09.2011. The

RTA also recorded that the petitioner applied for and obtained the permit on

14.09.2011 i.e. on the same date of getting the vehicle registered. Although

the RTA records the petitioner's submission that the vehicle has been

supplied to him about a month prior to the date of payment, i.e. 12.09.2011

and that the body was built within this time frame, the RTA concludes that

it is not possible to build the complete vehicle within 24/36 hours of

purchasing the chassis, on two presumptions. First, the petitioner could not

submit any documentary evidence and second, by reason of an alleged

acceptance on the part of the petitioner that it is impossible to build a body

within restricted time frame. There is no indication of any reason an alleged

basis in relation to the alleged acceptance by the petitioner supporting the

conclusion of the RTA. Further, the presumption of impossibility becomes

even more vague in the final part of the impugned order which is:

"On consideration of all pros and cons, it circumstantially appears that the permit holder had obtained the permit by not fulfilling the permit condition of presenting a fully built up bus and hence the permit is considered and cancelled."

The RTA has not disclosed what the so-called pros and cons are or the

circumstantial evidence which leads to the conclusion that the petitioner

could not have built the body within 36/48 hours.

6. The submissions made on behalf of the respondent authorities are in

the nature of after-thoughts. This would be evident from the respondents

dwelling on an offer letter of 11th May, 2011 with certain conditions and the

alleged lack of evidence in relation to a ready vehicle being handed over to

the petitioner on 12.09.2011. All these allegations are in aid of and lead to

the same presumption, namely, that the petitioner could not have

constructed the body of the vehicle from the chassis within 48 hours and

hence did not fulfil the permit condition of presenting a fully built up bus to

the authorities.

7. The relevant part of the impugned order does not refer to any statutory

provision which the petitioner was under an obligation to fulfil and failed,

which called for cancellation of the petitioner's permit. The impugned order

is based only on facts and surmises without any corroborating material. The

impugned order is also vulnerable to challenge by reason of documents

produced by the petitioner in relation to an application made under The

Right to Information Act, 2005, by which the petitioner sought information

as to whether at the time of registration, a ready bus or a chassis was

produced. A reply of the Registering Authority dated 28th September, 2018 to

the petitioner's application refers to particulars of the "vehicle" being found

in the computer database of the Motor Vehicle Department, Alipore. This

document is part of records and is material to the petitioner's claim that the

petitioner produced a bus (complete vehicle) at the time of registration.

8. Since the RTA did not have occasion to consider this relevant piece of

evidence, this Court is of the view that the RTA should reconsider the case

afresh taking into account all relevant documents and the facts which would

emerge from the documents. The RTA shall be at liberty to hear all necessary

parties once again, including the petitioner and the private respondent and

pass an order after hearing the relevant parties within a period of six weeks

from the date of communication of this order. The RTA shall also take into

account whether the petitioner's permit lapsed in the interregnum.

9. The other point which should be noted is that section 44 of the 1988

Act, as it stands, does not require the production of a "transport vehicle"

before the registering authority. A Notification dated 28th August 2019 of the

Ministry of Road Transport and Highways, indicates that the proposed

amendment to section 44 has not been notified. From the definition of a

"transport vehicle" under section 2(47) and "public service vehicle" under

section 2(35), it is evident that the petitioner's vehicle is a transport vehicle

and there was hence no requirement for the petitioner to produce the vehicle

at the time of registration under section 44 of the Act. The impugned order

should also be set aside on this ground.

10. The impugned order dated 27th June, 2018 is set aside for the above

reasons and WPA 18922 of 2018 and all connected applications are allowed

and disposed of.

Urgent Photostat certified copies of this judgment, if applied for, be

given to the respective parties upon fulfilment of requisite formalities.

(Moushumi Bhattacharya, J)