Calcutta High Court (Appellete Side)
Pradip Dutta & Ors vs The State Of West Bengal & Ors on 9 June, 2023
June 09, 2023
(63) ARDR
WPA 10525 of 2020
WPA 5280 of 2019
(Reference file)
Pradip Dutta & ors.
Vs.
The State of West Bengal & Ors.
Adv. Samim Ahmed,
Adv. Amibya Khatun
...for the petitioners.
Adv. Amal Kumar Sen,
Adv. Asima Das (Sil),
Adv. Lal Mohan Basu,
...for the State.
Heard learned counsels for the parties.
The notifications issued on August 14, 2018,
December 10/18, 2018 and March 31, 2017 are assailed in
the writ petition.
The notification issued on December 18, 2018
demonstrates that the same was issued in supersession of
the notification no. 1276-WT/4M-23/95 PtI dated 31 st
March, 2017. Therefore, the notification dated 31 st March,
2017 is non-est as on this date.
Challenging the maintainability of the writ petition,
learned counsel for the respondents has submitted that an
earlier writ petition challenging the notifications dated
August 14, 2018 and December 18, 2018 has been decided
by a coordinate Bench of this Court by an order passed on
12th March, 2019 in WP 5280 (W) of 2019. The said order
was carried in appeal and by an order passed on 14 th June,
2019 in MAT 5621 of 2019 with CAN 4126 of 2019, an
Hon'ble Division Bench of this Court modified the
impugned notifications and directed implementation of the
same by the Government by using their discretion
reasonably, fairly and without practising any malicious
discrimination between the new auto rickshaw and the
unauthorised auto rickshaw in registration under the
impugned notifications.
Learned counsel submits that since the matter has
been adjudicated by this Court earlier, the same cannot be
reopened in the present writ petition.
Speaking in support of his claim, learned counsel for
the petitioners submit that the earlier orders were passed
without consideration of a judgment passed by a
coordinate Bench of this Court in a batch of writ petitions
on March 28, 2014 since the said judgment was not
brought to the notice of the Courts when the matter was
adjudicated. Learned counsel further submits that in the
said judgment, this Court placed reliance on an order
passed in WP 22994 (W) of 2009 on January, 2010 by a
coordinate Bench of this Court directing the State
Government to consider the desirability of framing an
appropriate policy in the matter pertaining to the grant of
auto rickshaw permits. Relevant portion of the order is set
out hereinbelow:
"Unless the State Government frames a policy laying down qualifications
and criteria for grant of an auto rickshaw permit, a Regional Transport
Authority, on its own, cannot take such a decision. It is true that if Auto
Rickshaws are allowed to ply on bus routes, there may be severe traffic
congestion or risk to the safety of passengers travelling in such auto
rickshaw, but unless the State Government formulates a policy, the
rejection by an authority on a ground which is not within the policy of
the State nor within the statute, cannot be allowed to be sustained.
Accordingly, the order and/or the Resolution of the Regional Transport
Authority, Nadia, taken on 18/7/2009 is set aside and the matter is
remanded to the said authority for a reconsideration and for taking a
fresh decision in accordance with law within a period of four weeks from
the date of receipt of a copy of the order.
Simultaneously, let a plain photocopy of this order be handed over and
served upon the learned Advocate General, State of West Bengal, for
consideration of the observations made above and for taking up the
matter with the Government for considering the desirability of framing
an appropriate policy in the matter pertaining to the grant of auto
rickshaw permits."
Referring to the said order, this Court refused to
interfere with the impugned notification issued by the
Government on 29th January, 2010 laying down guidelines
to be followed in respect of granting permits for three
wheeled auto rickshaws in the State.
Learned counsel submits that the said notification
dated 29th January, 2010 which has been upheld by this
Court prohibits issuance of any subsequent notification
contrary to the same.
I have heard the submission made on behalf of the
parties and the material placed before me.
It is not in dispute that the notifications dated
August 14, 2018 and December 18, 2018 have been dealt
with and finally decided by a single Bench as well a
Division Bench of this Court. The notification dated 29 th
January, 2010 referred to in the judgment dated March 28,
2014 indicates that the Government in the Transport
Department shall only be competent to grant any
relaxation in the matter. Therefore, any subsequent
notification made by the Government in supersession of
earlier notifications cannot be said to be contrary to the
earlier notifications or in violation of the directions of the
Court in the judgment referred to above. Subsequent
notifications are made by the Government by virtue of the
power conferred upon it for relaxation of earlier
notifications.
Since the notifications challenged in the present writ
petition have been finally dealt with and decided by this
Court earlier, the writ petition, in its present form, is
barred by the principles of res judicata, and as such, is not
maintainable.
Accordingly, the writ petition, being in WPA 10525 of
2020 is dismissed, being not maintainable.
There shall however, be no order as to costs.
Urgent certified website copy of this order, if applied
for, be furnished to the parties on usual undertakings.
(Suvra Ghosh, J.)
