Sri Avijhit Ghosh vs The State Of West Bengal And Others
2022 Latest Caselaw 3681 Cal

                    In the High Court at Calcutta
                   Constitutional Writ Jurisdiction
                            Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                          WPA No. 10886 of 2022

                           Sri Avijhit Ghosh
                                   Vs.
                  The State of West Bengal and others

                                  With

                           WPA 10896 of 2022

                         Sri Gouranga Biswas
                                  Vs.
                  The State of West Bengal and others



    For the petitioners
    in both the matters           :      Mr.Arabinda Chatterjee,
                                         Mrs. Kakali Dutta,
                                         Mr. Arkadipta Sengupta,
                                         Mr. Subhajit Das

    For the State in
    WPA No.10886 of 2022          :      Mr. Pantu Deb Roy,
                                         Mr. Subrata Guha Biswas

    For the State in
    WPA No.10896 of 2022          :      Mr. Amal Kumar Sen,
                                         Mr. Lal Mohan Basu

    For the respondent no.5

    in both the matters           :      Mr. Bhaskar Nandi

    For the respondent no.6
    in both the matters           :      Mr. B. K. Samanta


    Hearing concluded on          :      27.06.2022

    Judgment on                   :      29.06.2022



     Sabyasachi Bhattacharyya, J:-

1. The writ petition has been filed against an order dated June 7, 2022

passed by the Regional Transport Authority, Kolkata Region, thereby

affirming the decision of the RTA Board Meeting dated June 27, 2018,

whereby the permit of the petitioners to ply their buses on Routes -

30C and 30C/1 were cancelled.

2. The brief facts of the case are as follows :

3. The petitioners' buses were registered on September 14, 2011. Upon

being issued Offer Letters for plying their buses on the aforesaid

routes, issued by the Motor Vehicles Authority on May 5, 2011 and

May 11, 2011 respectively, the petitioners purchased the chassis of

their buses and allegedly had the same developed as ready buses in a

private garage. Ultimately, registration was granted in respect of the

buses on September 14, 2011 and the petitioners started plying their

buses on the aforesaid routes.

4. On October 11, 2017, the Secretary, RTA, Kolkata issued show-cause

notices to the petitioners on the basis of certain complaints lodged by

the private respondents. A similar notice was issued again on April

18, 2018. The petitioners duly attended the hearing fixed by the RTA,

Kolkata on April 27, 2018.

5. On May 15, 2018, three complaints dated August 24, 2017, January

17, 2018 and March 9, 2018 were handed over to the petitioners. On

May 15, 2018, a writ petition was filed by the private respondents,

upon which a co-ordinate Bench of this Court directed the RTA,

Kolkata to decide on the complaints lodged against the petitioners.

The petitioners preferred appeals bearing MAT 496 of 2018 and MAT

497 of 2018 respectively against the said order, but the orders were

substantially retained in appeal.

6. On June 27, 2018 pursuant to the said direction, the RTA cancelled

the petitioners' permits.

7. The petitioners preferred writ petitions bearing WPA 18920 of 2018

and WPA 18922 of 2018 respectively against the said decision, upon

which another co-ordinate Bench of this Court, vide order dated April

01, 2022, remanded the matter to the RTA, Kolkata Region with a

direction to reconsider the case afresh, taking into account all

relevant documents and the facts which would emerge from the

documents. The RTA was given liberty to hear all necessary parties

once again, including the petitioners and the private respondents and

pass an order within a period of six weeks from the date of

communication of the order.

8. Subsequently the RTA, vide order dated June 07, 2022, affirmed its

decision dated June 27, 2018, against which the present writ

petitions have been preferred.

9. Upon hearing learned counsel for the parties, certain documents,

which are part of the records, deserve mention.

10. Proforma invoices were issued to the petitioners on May 25, 2011 by

one Bhandari Automobiles Private Limited, indicating the costs of the

chassis of each of the vehicles.

11. The petitioners have annexed receipts dated June 25, 2011 for

payments made by the petitioners to Bhandari Automobiles, In the

said receipts, it was mentioned "Hypothecated to State Bank of India".

12. Sale Certificates were issued for the bus chassis to the petitioners by

the said Bhandari Automobiles on September 12, 2011.

13. The petitioners have produced receipts of Registration Fee dated

September 13, 2011 and for payment of further Registration

Certificate Fee dated September 13, 2011. In the said documents, the

year of manufacture was mentioned as "8/2011". The registration

was granted in respect of the vehicles on January 14, 2011.

14. On September 14, 2011, the petitioners made request for route

permit.

15. It is noted that the complaints, on which the permits of the

petitioners were cancelled were to the effect that it was not possible

for the petitioners to complete manufacturing of fully prepared buses

within two days. The RTA proceeded on such premise, on the basis of

the Sale Certificates being dated September 12, 2011 and the

registration being granted on September 14, 2011.

16. From the Sale Certificates dated September 11, 2011, it is evident

that the same were issued for bus chassis. However, the petitioners

have made out a credible case to the effect that the invoices for the

chassis were issued by Bhandari Automobiles, the vendor, on May

25, 2011. On June 25, 2011, a token amount of Rupees Five

thousand was given by the petitioners, upon receipts being issued by

Bhandari Automobiles. The petitioners have indicated that over the

next few months the bodies of the buses were built in a private

garage. The final Sale Certificate, however, was issued for the chassis

on September 12, 2011.

17. Although the RTA has disbelieved the case of the petitioners that the

chassis were handed over to them by Bhandari Automobiles about

three months prior to the issuance of the Sale Certificate, there is

nothing to disprove the case made out by the petitioners to the effect

that the petitioners had procured the chassis in May/June, 2011 and

had the buses built in a private garage and ultimately applied for

registration on September 13, 2011 and got the same on the next

date that is September 14, 2011.

18. In fact, allegations of fraud and forgery have been levelled against the

petitioners by the private respondents and accepted by the RTA

without any particulars or details of such alleged act of fraud/forgery

having been established by the private respondents at any point of

time. Allegations of fraud, it is well-settled, cannot be accepted

merely on the basis of conjecture and surmise but the details thereof

have to be specifically pleaded and proved. In the present case,

however, the RTA over-stepped its jurisdiction in crossing over behind

the back of the grant of registration for the purpose of cancelling the

permit of the petitioners.

19. In fact, the registration was granted by the Registering Authority, to

which a presumption of correctness is to be attached, since the same

was an official act, within the contemplation of Section 114(e) of

Evidence Act. Official acts are presumed to have been regularly

performed. In the absence of specific allegations being levelled or

proved against the Registering Authority in respect of purported

collusion with the petitioners, the RTA travelled beyond its authority,

while considering the issuance of permit to the petitioners, to reopen

the veracity of the registration itself.

20. The premise of the entire observations of fraud arrived at by the RTA

was conjecture and surmise.

21. There is nothing on record to disbelieve the petitioners' case that the

chassis were handed over to them by Bhandari Automobiles in

May/June, 2011 and, over the next two or three months, they had

the body built in a private workshop.

22. In fact, nothing has been brought on record to substantiate that final

receipts and/or documents in respect of manufacture of the body of

buses, to prepare it for the road, were being issued in regular course

of business by the private manufacturer/garage where the petitioners

had their buses built.

23. Hence, there was nothing on record to hold that, when the buses were

registered on September 14, 2011, the complete and ready buses

were not produced before the Registering Authority.

24. The mere issuance of the Sale Certificates by Bhandari Automobiles

for the bus chassis on September 12, 2011 do not necessarily

implicate the said Bhandari Automobiles or the petitioners for

committing any fraud, since it depended on the mutual

understanding between the said vendor and the petitioners as to

whether part payment for the chassis was made subsequent to the

same being handed over on trust to the petitioners by the vendor. In

fact, the petitioners have alleged that the State Bank of India, Small

and Medium Enterprises City Credit credited an amount to the

Bhandari Automobiles on October 10, 2011, which is even after the

date of issuance of the Sale Certificates, in view of the loan obtained

by the petitioners.

25. The Registering Authority, well within its charter, had been satisfied

with the Sale Certificates and a presumption is raised that the built

buses were produced before the said Authority at the time of grant of

Registration on September 14, 2011.

26. The vehicle particulars given with the receipts by the Registering

Authority, Motor Vehicles Department, Alipore, South 24-Parganas

clearly show that the bodies comprise of "bus" and not merely

chassis. Again, the communication issued by the Registering

Authority on September 28, 2018 to the petitioner in respect of their

vehicles, bearing Registration Nos. WB 19E 8423 and WB 19E 8421

respectively, clearly show that the motor models of the vehicle class

were mentioned as "bus" and, under the caption "Purchase As", it was

mentioned "fully built". Even the colour of the buses was mentioned

as "sky-blue/yellow". Hence, there was no material before the RTA to

cancel the permits of the petitioners in the first place on the

assumption of fraud.

27. That apart, it is seen from the order of the learned Single Judge dated

April 1, 2022 in WPA 18920 of 2018 and WPA 18922 of 2018 that the

matter was remanded to the RTA in the light of certain specific

observations. It was observed by the learned Single Judge that there

was no indication of any reason or factual basis supporting the

conclusion of the RTA and that the presumption of impossibility was

vague in the final part of the impugned order. Moreover, it was

observed that the order was passed on surmises. The document

issued by the Registering Authority on September 28, 2018` in reply

to the petitioners' query under the Right to Information Act, 2005 as

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

produced, was a part of the records but not considered by the RTA.

The same was directed to be considered afresh, which was not done

by the RTA.

28. However, the respondent-Authorities and the private respondents

before this Court have sufficiently established that the amendment to

Section 44 dated August, 2019 had been introduced only subsequent

to the registration of the vehicles of the petitioners and, as such, at

the juncture when the registration was effected, a "transport vehicle"

was also to be produced before the Registering Authority. Such

provision was deleted by way of amendment only subsequently and,

as such, was applicable at the relevant juncture.

29. Yet, it is surprising that the RTA reiterated and 'affirmed' its decision

dated June 27, 2018 without considering all the materials as directed

by the learned Single Judge in the remand order dated April 1, 2022.

30. The only reasoning added by the respondent-authorities in the

impugned order dated June 7, 2022 was that the RTA had

reconsidered the case afresh and heard the relevant parties and had

revisited the chronological proceedings of the incidents related to the

matter. It was further observed by the RTA that from the "above

documents", being primarily the Sale Certificate and other connected

document, it was evident that chassis were delivered by Bhandari

Automobiles to Abjhijit Ghosh and Gouranga Biswas, the petitioners,

in Form-21 containing the Sale Certificate dated September 12, 2011.

In the absence of any proof from any side in respect to the exact date

of delivery of the chassis to the petitioners, there was nothing on

record to prompt the RTA to suo motu arrive at the finding that the

chassis were handed over along with the Sale Certificates only on

September 12, 2011 instead of May/June, 2011, although there was

equal possibility of the chassis being handed over in May/June,

2011, in view of the invoices dated May 25, 2011 and receipts of

rupees five thousand, also issued by the Bhandari Automobiles (the

vendor) on June 25, 2011. In fact, in the receipts dated June 25,

2011, it was indicated: "Hypothecated to State Bank of India", which

was a sufficient indicator, coupled with the specific averment of the

petitioners that the State Bank of India subsequently disbursed

amounts to the Bhandari Automobiles in view of the loan taken by

the petitioners, to come to the conclusion that the complete buses,

and not merely the unprepared chassis, were produced by the

petitioner at the time of registration.

31. In such view of the matter, the impugned order dated June 7, 2022

passed by the Regional Transport Authority, thereby confirming its

own decision dated June 27, 2018, cannot stand the scrutiny of

judicial review.

32. In view of the RTA having acted palpably without authority and on the

basis of conjecture and surmise, there is no scope of agreeing with

the same or affirming the order of the RTA. Hence, WPA No.10886 of

2022 and WPA No.10896 of 2022 are allowed on contest, thereby

setting aside the order dated June 7, 2022, whereby the RTA, Kolkata

Region affirmed its earlier order dated June 27, 2018 cancelling the

permits issued to the petitioners for plying their vehicles.

Accordingly, the petitioners' permits stand revived.

33. There shall be no impediment to the petitioners plying their vehicles

on the designated routes in terms of their permits, subject to the

petitioners complying with the law otherwise.

34. There will be no order as to costs.

35. Urgent certified copies of this order shall be supplied to the parties

applying for the same, upon due compliance of all requisite

formalities.

( Sabyasachi Bhattacharyya, J. )

Later:

When the above judgment is passed, learned counsel for the parties

point out that in the meantime, the permits of the petitioners have expired

in due course but have been kept alive by virtue of the orders of this court.

In such view of the matter, as provided in the above order, the permits

of the petitioners are deemed to stand revived, of course, subject to the

outcome of the decision arrived at by the respondent-authorities on the

pending renewal applications.

It is expected that the said renewal applications shall be decided as

expeditiously as possible.

Till such renewal applications are disposed of, the petitioners shall

continue to ply their vehicles on the routes-in-question and it will be

deemed that their permits are alive for the said purpose.

( Sabyasachi Bhattacharyya, J. )