Calcutta High Court (Appellete Side)
Debashis Das vs The State Of West Bengal And Others on 2 August, 2022
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
W.P.A. No. 15442 of 2022
Debashis Das
Vs.
The State of West Bengal and others
For the petitioners : Mr. Sankar Nath Mukherjee,
Sk. Samim Aktar,
Mr. Niraj Gupta
For the State : Mr. Amal Kr. Sen,
Mr. Lal Mohan Basu
Hearing concluded on : 15.07.2022
Judgment on : 02.08.2022
Sabyasachi Bhattacharyya, J:-
1. The petitioner has challenged a decision of the Regional Transport
Authority (RTA), Howrah dated June 29, 2022, whereby the petitioner's
application for auto-rickshaw permit on Route AR-3 was rejected. The said
decision was taken in terms of an order dated March 11, 2022 passed by a
co-ordinate bench in WPA No.9902 of 2019.
2. Learned counsel for the petitioner contends that the RTA, Howrah acted
without authority in passing the order since, vide Gazette Notification dated
October 21, 2016, the RTA, Kolkata had been conferred with the power to
exercise jurisdiction over the combined areas of Police Commissionerates of
2
Kolkata, Howrah, Barrackpore and Bidhannagar. Moreover, by a
notification dated June 7, 2016, the composition RTA was nominated. As
per Rule 81(1), read with Rule 83(4), of the West Bengal Motor Vehicles
Rules, 1989 (hereinafter referred to as, "the 1989 Rules"), the authority so
conferred is valid for a period of three years. Hence it is contended that the
designated RTA, Howrah had become defunct on the expiry of three years
from the notification dated June 7, 2016.
3. Furthermore, the RTA, Howrah, in the impugned decision, arbitrarily
specified March 11, 2022 as a cut-off date for the purpose of ascertaining
the financial stability of an applicant in terms of Section 74(3) (b) (i) of the
Motor Vehicles Act, 1988.
4. The impugned order does not disclose any reason for choosing the said date
of order of the coordinate bench as a cut-off date.
5. Learned counsel for the respondent-Authorities, on the other hand, points
out that the writ petitioner has contended in paragraph no.18 of the writ
petition that the appointment of the RTA, Howrah had expired long back,
prior to the decision being taken on June 29, 2022. As such, the RTA
Board did not have any existence in the eye of law at the time of passing
the said order.
6. However, it is vociferously submitted that the said contention is not only
incorrect but has been affirmed to be true to the petitioner's knowledge.
Such conduct, without properly ascertaining the current position of law,
ought to be deprecated, it is argued.
7. By placing reliance on a subsequent Notification dated August 17, 2021
issued by the Joint Secretary, Transport Department, Government of West
Bengal, it is contended that the tenure of the RTA, Howrah had been
extended for a further period of three years as contemplated in Rules 81(1)
and 83(4) of the 1989 Rules.
8. It is further contended that the RTA has an administrative authority to
stipulate a cut-off date for the purpose of ascertaining the criteria as
stipulated in Section 74 for grant of contract carriage permit. In any event,
it is argued, an unscrupulous applicant may, immediately prior to applying
for an auto-rickshaw permit, deposit lump sum amounts of money in his
bank account to establish good financial stability, whereas the same can be
manipulated for the purpose of obtaining a permit, even though the
applicant may not otherwise have such financial stability. The authorities
have to fix up some cut-off date, taken as the date of order of the coordinate
Bench in the present case. The said discretion comes within the legitimate
domain of administration, it is submitted. Hence, learned counsel argues,
there was no illegality in such exercise and, as such, the decision of the
authority should not be interfered with under Article 226 of the
Constitution of India.
9. Insofar as the territorial jurisdiction of the RTA, Howrah at the relevant
time was concerned, learned counsel for the respondents submits that the
petitioner himself invited the writ court to pass a direction on the RTA,
Howrah to take a decision on the petitioner's application for permit. Thus,
the petitioner ought not to be permitted to resile from such position now
and claim that the rejection of the petition's application was without
jurisdiction.
10. Upon considering the submissions of the parties, the materials-on-record
reveal that vide Notification No. 2237-WT/3M/25/2011 (Pt.I) dated August
17, 2021 issued by the Transport Department, Government of West Bengal
the tenure of the RTA, Howrah had been duly renewed. Such nomination,
in terms of Rule 81(1) read with Rule 83(4) of the 1989 Rules, extends till
August 16, 2024, which yet to come. Hence, the concerned RTA, Howrah
had jurisdiction on such score to decide on the petitioner's application on
June 29, 2022, when the impugned order was passed.
11. Another aspect to be considered is that by virtue of the Gazette Notification
dated October 3, 2016 published on October 21, 2016 the territorial
authority of the RTA, Howrah in respect of the Police Commissionerate of
Howrah, among others, had been conferred upon the RTA, Kolkata.
12. Yet, on the petitioner's own writ petition, challenging the resolution of the
RTA, Howrah dated March 26, 2019, the writ petition bearing WPA No.
9902 of 2019 had been disposed of on March 11, 2022.
13. The said order was passed by the learned Single Judge in presence of
learned counsel for the petitioner and the State at the behest of the
petitioner. By the said order, the matter was sent back to the RTA, Howrah
to take a considered view on the petitioner's application for grant of
contract carriage permit in the light of existing vacancy in the said notified
route.
14. Thereafter the petitioner awaited the decision of the RTA, Howrah which
was taken subsequently on June 29, 2022.The petitioner participated,
along with his learned advocate, at the hearing before the RTA on May 5,
2022 and made his submission regarding grant of auto-rickshaw permit on
route AR-3. Only upon hearing being given to the petitioner, the RTA,
Howrah took the impugned decision of rejecting the petitioner's application
on June 29, 2022. Thus, it is amply clear that the petitioner totally
submitted to the jurisdiction of the RTA, Howrah. It does not now lie in the
mouth of the petitioner to take a diametrically opposite stand and challenge
the territorial authority of the RTA, Howrah, after having taken a chance
and after the petitioner's application was rejected on merits by the RTA,
Howrah.
15. Judicial propriety and equitable considerations prevent the petitioner from
being permitted to challenge such territorial jurisdiction of the RTA,
Howrah at a belated stage, for the first time before the writ court. Such
principle is also reflected in Section 21 of the Code of Civil Procedure,
which precludes a party to object to the territorial jurisdiction of a court at
a belated stage, if not taken at the earliest possible opportunity, before a
revisional or an appellate forum. In the absence of any specific Rule on a
topic, the principles of the Code are to be imported in writ petitions. Hence,
the challenge to the territorial jurisdiction of the RTA, Howrah, levelled by
the petitioner in the instant writ petition, cannot but be turned down.
16. Again, no explanation has been offered at all in the impugned decision to
take the cut-off date arbitrarily as March 11, 2022 for considering the
financial stability of applicants for contract carriage permits. Although the
learned Single Judge, in WPA No.9902 of 2019, had passed direction on
March 11, 2022 for the RTA, Howrah to re-decide the matter within a
period of six weeks from that date by a reasoned order upon hearing all
concerned parties including the petitioner, it was never stipulated in the
said order that the relevant criteria for grant of such permit have to be
considered on the yardstick as applicable on the date of the order itself.
17. In the absence of the impugned order reflecting any reason for taking the
said cut-off date, the same has to be struck down as arbitrary.
18. At a more basic level, the expression "financial stability of the applicant", as
used in Section 74(3)(b)(i), clearly indicates the financial solvency/condition
of the applicant at least over a reasonable period of time immediately
preceding the application. A proper consideration of stability should
include the scrutiny of finances of a person over a reasonable period of time
immediately preceding the application; otherwise, the evil of showing
inflated income for getting permits cannot be avoided.
19. In the present case, the fixation of cut-off date as March 11, 2022 was
arbitrary and unreasonable. It is reflected from the impugned order that
the only ground for rejecting the petitioner's application and the application
of others, apart from the successful applicant Abdul Rub Ansari, was based
on the sole criterion of financial stability, which was interpreted by the
authority to be possessing the maximum bank balance in an applicant's
pass book as on March 11, 2022. Thus, the impugned decision ought to be
struck down on such score alone, if not others.
20. Hence, although a "reasoned" order was passed by the RTA, Howrah, in
terms of the order of the learned Co-ordinate Bench, the said order has to
be set aside on the above grounds.
21. Propriety demands that the matter is remanded again to the appropriate
authority having jurisdiction. In view of the Gazette Notification dated
October 3, 2016, published on October 21, 2016, which has the force of
law, such re-hearing has to be done by the RTA, Kolkata and/or any other
authority which may be currently exercising jurisdiction as on the date of
such consideration.
22. In the light of the above observations, WPA No.15442 of 2022 is allowed,
thereby setting aside the order of the Regional Transport Authority, Howrah
vide Memo No.826/MV dated June 29, 2022 (Annexure P-9 at page 44 of
the writ petition) whereby the RTA selected one Abdul Rub Ansari for the
sole vacancy for grant of auto-rickshaw permit on the route AR-3 and
precluding the other applicants, including the petitioner. The matter is
sent down to the Regional Transport Authority, Kolkata (or any other RTA
which may be exercising the jurisdiction for the Howrah Police
Commissionerate area as on the date of such consideration), to decide the
petitioner's application for grant of permit in respect of Route AR-3 afresh,
in the light of the above observations, by giving fresh hearing to the
petitioner as well as the other applicants for the same route in respect of
the existing vacancy in the said notified route, in accordance with law. A
copy of the resultant reasoned order shall be furnished to the petitioner
immediately after the date of such order by the concerned RTA.
23. There will be no order as to costs.
24. Urgent certified copies, if applied for, be issued by the department on
compliance of all requisite formalities.
( Sabyasachi Bhattacharyya, J. )
