Calcutta High Court
Biswajit Chatterjee & Anr vs Ram Pujan & Ors on 5 April, 2024
Author: Harish Tandon
Bench: Harish Tandon
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Present:
THE HON'BLE JUSTICE HARISH TANDON
&
THE HON'BLE JUSTICE M ADHURESH PRASAD
APO 133 of 2023
With
WPO 530 of 2022
IA GA 1 of 2023
Biswajit Chatterjee & Anr.
Vs.
Ram Pujan & Ors.
APO 134 of 2023
With
WPO 531 of 2022
IA GA 1 of 2023
Biswajit Chatterjee & Anr.
Vs.
Sheo Pujan & Ors.
APO 135 of 2023
With
WPO 532 of 2022
IA GA 1 of 2023
Biswajit Chatterjee & Anr.
Vs.
Shashi Pujan & Ors.
APO 148 of 2023
With
WPO 530 of 2022
IA GA 2 of 2024
Om Prakash Gupta
Vs.
The State of W est Bengal & Ors.
APO 149 of 2023
With
WPO 531 of 2022
APO 148/23
2
IA GA 2 of 2024
Om Prakash Gupta
Vs.
The State of W est Bengal & Ors.
APO 150 of 2023
With
WPO 532 of 2022
IA GA 2 of 2024
Om Prakash Gupta
Vs.
The State of W est Bengal & Ors.
Appearance:
For the Petitioners(1 to 3) : M r. Aurobinda Chatterjee, Sr. Adv.
M r. Arkadipta Sengupta, Adv.
M s. Aayushi M ukherjee, Adv.
For the Appellant (4 to 6) : M r. Sattwik Bhattacharyya, Adv.
M r. Aashutosh Bhattacharyya, Adv.
For the State (4 to 6) : M r. Amal Kumar Sen, Adv.
M r. Lal M ohan Basu, Adv.
For the Respondent(1 to 6) : M r. Debabrata Saha Roy, Adv.
M r. Debabrata Chakraborty, Adv.
For the STA Jharkhand (1 to 6): M s. Aishwarya Rajyashree, Adv.
Judgment On : 05.04.2024
Harish Tandon, J.:
The instant appeal is filed by the respondent No. 7 of the writ petition
assailing a judgment and order dated 1st August, 2023 passed by the Single
Bench disposing of the writ petition with the direction that the State
Transport Authority, West Bengal and the State Transport Authority,
Jharkhand will take a conscious decision within 3 months in relation to all
formalities which appears to have not been followed in terms of the
provisions of the Motor Vehicles Act, 1988.
The salient facts involved in the instant case are required to be
narrated in order to determine the questions raised in the instant appeal.
The writ petitioner who is arraigned as respondent no. 8 in the instant
appeal was the permanent permit holder issued by the State Transport
Authority, Jharkhand for a route between Jamshedpur and Durgapur. After
the issuance of the permit by the State of Jharkhand, the counter signature
is required to be put in by the reciprocating State i.e., State of West Bengal
which appears to have been a subject matter of several litigations between
the parties. It appears that there was reluctance on the part of the State
Transport Authority, West Bengal in putting a counter-signature and for
every fresh permit or the renewal thereof, the approaches were made to the
High Court and orders were passed to put a counter-signature. The writ
petitioner/respondent No.1 has vividly reflected various writ petitions filed
before this Court and the contempt application in violation of such order
passed in the writ petition which were ultimately disposed of.
At the time of the last renewal, the same stand was taken by the State
of West Bengal showing their dormant attitude in not putting a counter
signature and the writ petition was filed by the said respondent No. 4
seeking a mandamus commanding the State Transport Authority to issue
counter-signature/letter so that the said respondent would continue plying
the vehicle on the basis of the permit granted by the State Transport
Authority, Jharkhand. The record would further reveal that an objection
was raised by the appellant before the Authority and order was passed by
the writ Court to add the appellant as party respondent in the said writ
petition. By the impugned order the learned Single Judge passed the
following direction:
"It is expected that the STA, W est Bengal and the STA, Jharkhand will
come to a decision within three months from today whi ch is considered to be a
reasonable period for completion of all exercises in terms of the order passed
by this Court. Fixing a reasonable period is necessary since the added
respondents have expressed their continued grievance in fa ce of the
discrepancy in the two routes. The STA, W est Bengal and the STA, Jharkhand
will publish the decision pursuant to the discussion in their respective
websites and also give notices to the parties in the present writ peti tion within
two weeks from the date of publication of the de cision in the offi cial website.
It is also made clear that there should not be any unreasonable delay on
the part of the two authorities since one of the parties before the court is
continuing to enjoy interim prote ction. The interim order which is till 21 st
August, 2023 will continue until four weeks from the communication of the
decision to the parties."
It is a specific stand of the appellant petitioner that he is an old
existing operator in respect of an inter-State route i.e., Jamshedpur to
Durgapur via Purulia, Hura, Kamalpur, Bankura since 1988 and the said
permit was renewed from time to time. The objection is raised by the
appellant that a draft state reciprocal agreement was published in the
official gazette of State of West Bengal on 4.9.2002 which includes one inter-
State route i.e., Jamshedpur to Durgapur via Barrage, Bankura, Burdwan,
Kating, Patamda for inviting objections under Section 88(5) of the Motor
Vehicles Act, 1988. Correspondingly, the State of Jharkhand also published
the said draft reciprocal transport agreement for the said route on 27.1.2003
both in Hindi as well as in English version. Subsequently, the said draft
reciprocal transport agreement was finally published by the State of West
Bengal on 29.3.2004 revising the said inter-State route and subsequently,
the State of Jharkhand also published the same on 8.3.2006 both in Hindi
as well as English version.
It is a specific case of the appellant that there is a variance in a finally
published inter-State Reciprocal Transport Agreement published by the
Jharkhand in Hindi version with the English version. It is categorically
stated that the inter-State permit issued by the State of Jharkhand on the
basis of the Hindi version of the Reciprocal agreement is, in effect, a new
route which does not tally with the English version nor in tune with the
route finally published by the State of West Bengal and, therefore, there is
no question of any counter-signature to be put thereupon.
Noticing the discrepancy as projected by the appellant, the writ
petitions filed by the respective respondent no. 8 were disposed of on the
directions as quoted hereinabove. The appellant have taken us to the
various provisions of the reciprocal agreement published both by the state of
West Bengal and the State of Jharkhand to support its conte ntion that the
route which does not form part of the said reciprocal agreement, no permit
can be granted for such route by the reciprocating State in view of the
mandatory provisions contained under Section 88(5) of the said Act. It is
submitted that any permit granted without being included in the said
reciprocal agreement is illegal and therefore, the objection of the State of
West Bengal in declining to put the counter-signature cannot be faulted
with. In support of aforesaid contention, the reliance is placed upon the
judgment in case of Ashwani Kumar & Anr. Vs. Regional Transport
Authority, Bikaner & Anr., reported in (1999)8 SCC 364 and A.
Venkatakrishnan vs. State Transport Authority, Kerala, reported in
(2004) 11 SCC 207. It is sought to be contended that Section 88(5) of the
said Act mandates an agreement to be entered into between the States for
the purpose of fixing the numbers of the permit proposed to be granted or
counter-signed in respect of each route or area to be published by each of
such State in the Official Gazette. It is thus, submitted that the route for
which the counter-signature is sought for is not included in the said
reciprocal agreement and because of a discrepancy having arisen in the
Hindi version published by the State of Jharkhand it would not be
presumed that the said route forms part of the said reciprocal agreement.
On the other hand, the writ petitioner/respondent submits that the
route permit was granted to the petitioner since long and the objection
raised by the appellant and the State of West Bengal is untenable. The
counsel for petitioner reliance upon the various orders passed in connection
with the writ petition concerning the said route and submits that this court
all along accepted the route to be a part of the reciprocal agreement and
directed the State Authority to put the counter-signature on the permit. It
is thus, submitted that the objection so raised is untenable and in order to
eradicate any confusion, the Single Bench has directed both the State
Transport Authorities of the reciprocating State to take a conscious decision
which cannot be faulted with.
Such being the short question involved in the instant appeal, our
attention was drawn to the interim order passed in the instant appeal
whereby the writ petitioner/respondent was permitted to continue to ply the
vehicle in the said route and a decision to be taken by the reciprocating
States so that the matter can be brought to its logical end. Since a legal
point was raised by the appellant, we intend to deal with the same as we feel
that non-consideration thereof would tantamount to failure in discharge of a
solemn duty entrusted upon the Court.
In Ashwani Kumar (supra), the Apex Court has concerned with the
matter relating to a route passing through the State of Rajasthan, Haryana
and UT Delhi. The regional Transport Authority of Bikaner took a conscious
decision to open the route i.e., Bhadra to Delhi but granted permit in favour
of only one person. The application of the other applicants were rejected.
The approach was made by one of the applicants, whose application was
rejected, to the Tribunal which was disposed of directing a RTA, Bikaner to
grant stage carriage permit in respect of its bus for daily one single trip with
the condition that the permit would be valid on obtaining counter-signature
from the other State concerned. Subsequently, the said permit was
cancelled by the RTA, Bikaner and the challenge was made to the High
Court of Rajasthan and ultimately the matter reached to the Supreme
Court. The Apex Court held that the existence of a route is a condition
precedent for exercise of powers under Section 88(1) of the said Act and the
scheme of the aforesaid Section would indicate that one State cannot take
an unilateral decision unless a reciprocal agreement is entered into and
published in the Official Gazette in the following:
"7. Accepting the submissions made on behalf of the appellants would
result in frustration of the objective sought to be achieved by the Act. The
interpretation put by the High Court is rational, legal and proper. In the
absence of the existence of an inter-State route, the authorities under the Act
were not justified in granting the per mits to the appellants. The existence of
permit depends upon the reciprocal agreements between the States covered
by the route which, admittedly, did not exist in the instant case. The orders
of the authority granting permit in favour of the appellants were thus
without jurisdiction."
The judgment rendered in A. Venkatakrishnan (supra) by the Three-
Judge Bench of the Apex Court have reiterated and accepted the ratio of the
decision rendered in Ashwani Kumar (supra) in the following:
"13. A purposive and meaningful construction, it is trite, must be given
to a statute, so that it is made workable. A statute should not be construed
in such a manner, which would create a vacuum. In the absence of any route
being fixed in ter ms of an agreement, in the event it be held that an
application for grant of permit for inter -State route can be entertained, the
same would lead to a futile exercise. A mutual approval of the States
concerned, in the matter, therefore, must be held to be mandatory. In other
words, the proviso, appended to sub-section (4) of Section 88 of the Act, must
be read conjointly with sub-sections (5) and (6) of Section 88 thereof and
consequently, it must be held that by necessary implication agr eements are
contemplated for creation of inter-State routes.
14. We are in agr eement with the view taken by this court in the case
of Ashwani Kumar case."
It admits no ambiguity that the scheme of the Act concerning the
inter-State route bestowed power upon the respective States to create an
inter-State route and to get it finalized by virtue of Sections 88(5) and 88 (6)
of the said Act. The Sub-Section (5) of Section 88 postulates that every
proposals for inter-State route or permit has to be entered into by the
reciprocating State and, therefore, to limit or fix the number of permits, the
same is to be published in the Official Gazette of the respective State in any
one or more of the Newspaper in regional language circulating in the area or
the route proposed to be covered by the said agreement. The object
underline the aforesaid provision is explicit that there should not be the
congestion in the said route as the intention for such permit is to facilitate
the services to the commuters and a comfortable journey in the specified
route. By the advancement of the technologies several committees were set
up and the recommendations were made to encourage the adoption of the
technologies in the automotive sector in order to facilitate the greater flow of
passengers and also to control the freight. Apart from the same, the road
safety Standards and the parameters are required to be set up to avoid any
accident to occur. The scheme of the Act manifests several roles of the
Route Transport Authorities and imposing the conditions differently in
relation to a permit to ply the vehicle inter-Region, intra-Region and inter-
State.
We are concerned with the inter-State permit and therefore it has to
pass through a muster of Sub-Section (5) of Section 88 of the said Act. We
have been taken to the publication of the reciprocal agreement in the official
gazette of the West Bengal and the Jharkhand and we find that so far as the
Hindi version of the said reciprocal agreement published by the State of
Jharkhand there appears to be same variance. Section 88(5) of the Act
requires the publication of the said reciprocal agreement in a regional
language circulating the area or the route proposed to be covered and if any
discrepancies is found, we do not find any fetter on the part of the respective
States to take a conscious decision in this regard. It cannot be said that the
route for which the permit was granted to the respondent no. 8 of the
respective appeals that the said route is covered within the said reciprocal
agreement published in the Hindi version and, therefore, the Trial Court
directed the RTA of both the States to resolve the said dispute by removing
the discrepancies if therebe any.
During the hearing of the instant appeal, the counsel for the State
hands over the decision taken by the RTA of the respective States wherein
the route for which the respondent no.8 was granted permit has been
rectified by amending and/or incorporating in the reciprocal agreement.
The aforesaid decision has been taken on 5 th December, 2023 and 6 th
December, 2023 by the respective States and, therefore, the contention of
the appellant cannot faulted that the route for which the permit was granted
to the respondent no. 8 by the State of Jharkhand has been rectified. There
is no fetter on the part of the Court to take note of the subsequent events
and in the event, the authorities have acted strictly within the purview of the
statutory provision, the same cannot be said to be infirmed and/or illegal.
In this regard, we further find that the reciprocal agreement contains a
specific provision that any change or the correction in any Clause of the
agreement or any addition or deletion of the routes, any correction or
changes in the alignment of routes may be done by a mutual consent after
discussion. By virtue of the said Clause, the mutual discussion has taken
place and the discrepancies have been removed but such alteration or the
incorporation can only take effect after the same is duly published in the
official gazette in the respective States. We have not been informed by the
counsel for the State that the same has been published in the official gazette
and, therefore, we modify the order impugned in the instant appeal to the
extent that the counter-signature to the permits can only be made after, the
amendment in the reciprocal agreement is duly published in the official
gazette strictly in terms of Sections 88(5) and 88(6) of the said Act. With
this observation, all the appeals are disposed of.
No order as to costs.
Urgent Photostat certified copies of this judgment, if applied for, be
made available to the parties subject to compliance with the requisites
formalities.
(Harish Tandon, J.)
I agree.
(M adhuresh Prasad, J.)
