TaxTMI 
TaxTMI 
2015 (2) TMI 1376
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....ch grant ex facie might appear to the Court to be grossly illegal, patently arbitrary and in colourable exercise of power, consequently offending the constitutional concept of equality?" "Whether it would be permissible for the Court exercising jurisdiction under Article 226 of the Constitution of India to entertain applications by holders of stage or contract carriage permits under the Motor Vehicles Act, 1988 questioning action or inaction on the part of the transport authorities in dealing with the complaint or allegations in relation to acts of other operators in running their vehicles for carrying passengers, whether holding permits or not, which acts would constitute ex-facie violation of the provisions of the Motor Vehicles Act, 1988 or Rules made in that regard". 2. The circumstances in which the reference has arisen have been succinctly captured in the orders of October 8, 2013 and November 11, 2014. Ideally, such orders ought to be reproduced, but for the sake of brevity the salient parts of the orders are paraphrased to bring out the essence thereof. 3. The principal question indicated above has been formulated in WP 3937(W) of 2013 in the order of October 8, 2013. S....
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....ation v. Champadanga Dakshineswar Bus Association); APOT No. 604 of 1999 (Sagar Chatterjee v. Shambhu Basu); and, FMAT No. 1017 of 2003 (Mrityunjay Transport Co. v. State of West Bengal). Though all the said six judgments were sought to be distinguished by the writ petitioners by referring to the Supreme Court views in the judgments reported at (2000) 7 SCC 552 (M.S. Jayaraj v. Commissioner of Exercise) and (2005) 3 SCC 683 (Sai Chalchitra v. Commissioner, Meerut Mandal), the first order of reference recorded that neither Supreme Court judgment referred to Mithilesh Garg. Such first order of reference perceived that the Division Bench judgments of this court referred to earlier pertained to the locus standi of vehicle operators who questioned new grants and, as such, had a closer nexus with the legal question that had arisen than the two Supreme Court judgments. The first order of reference found Sanjit Chakraborty to have read Mithilesh Garg to imply that "an existing permit holder cannot challenge the grant of permit to other operators, on the same route, even if it had been granted illegally". 6. Such order of reference, thereafter, noticed a Division Bench order of June 20, 20....
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....st order of reference noticed that Section 64-A of the 1939 Act had been preserved in Section 90 of the 1988 Act and observed that it had engaged the attention of the court that there was indiscriminate issuance of permits in derogation of the policy decisions of the executive and in contravention of the statutory provisions. By referring to some pithy illustrations, the first order of reference brings out the distinction between an objection to the grant of a permit or prayer for annulment of an issue of permit on business considerations and a challenge to a permit on the ground of it being illegal. 8. In the other order of reference, the petitioners therein were found to be aggrieved by the action or inaction on the part of the transport authorities in permitting certain other operators to carry passengers in contravention of the 1988 Act and the rules thereunder. The several sets of petitioners covered by the second order of reference were found to be aggrieved by the modification of a route by an authority which did not possess the jurisdiction to allow the modification; or, the grant of the relevant permit was otherwise contrary to law. The first order of reference was notice....
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....0) of the Act to mean a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey. Section 71 of the Act lays down the procedure for consideration of applications for stage-carriage permits by an RTA. Sub-section (3) of the Section 71 of the said Act obliges the STA or an RTA to limit the number of stage-carriages operating in certain routes if the State Government so provides at the instance of the Central Government. Section 72 of the Act envisages the grant of a stage-carriage permit, but makes the authority of the concerned RTA subject to the provisions of Section 71. 11. Section 73 of the Act deals with contract-carriage permits. Loosely speaking, a contract-carriage, as defined in Section 2(7) of the Act is a motor vehicle which carriages passengers for hire or reward under a contract at an agreed rate on the basis of time or on the basis of the fixed points of travel. Section 74(3) of the Act is the equivalent provision of Section 71(3) in respect of contract-carriages. 12. The three other provisions from Cha....
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....tion. As in the present reference, the matter pertained to Chapter V of the 1988 Act and the provisions therein were seen in the light of the corresponding provisions in Chapter IV of the 1939 Act which also covered the control of transport vehicles. Upon reading the comparable provisions of the two statutes, the court observed, at paragraph 5 of the report, that the procedure for grant of permits under the 1980 Act had been liberalised to such an extent that an intending operator could get a permit for the mere asking irrespective of the number of operators already in the field. The court noticed that the procedure under Section 57 read with Section 47 of the 1939 Act invited objections from the existing operators that were "required to be decided in a quasi-judicial manner." The court appreciated the salient features of Chapter IV of the 1939 Act pertaining to the control of transport vehicles and observed, at paragraph 6 of the report, that there "is no similar provision to that of Section 47 and Section 57 under the (new) Act." The judgment regarded Section 80(2) of the 1988 Act to be the harbinger of the liberalised policy reflected in the 1988 Act, while perceiving Section 71....
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....gal grant of a new permit for a part or the entirety of the route covered by the existing operator will have no right to complain to the authorities of the illegal grant or carry a grievance before a judicial forum upon the complaint going unheeded or being rejected. 17. It is now necessary to notice the views expressed in the several judgments of this court on the maintainability of a challenge by an existing operator to the illegal grant of a permit to a new operator or to the illegal operation of a stage-carriage or contract-carriage by a new operator. 18. The issue in the unreported judgement in FMAT No. 2902 of 1996 (Secy, Route No. 56 Bus Asscn. v. Champadanga Dakhbineswar Bus Association) rendered on February 20, 1997 was whether an existing operator could complain of the overlapping of a part of his route upon a permit being issued to a new operator. The problem had arisen because of the closure of a part of the route assigned to the respondents to the writ petition. By way of a temporary measure, the respondent operators were permitted to ply their vehicles on a route partially covered by the permits granted to the members of the petitioner association. The petitioners s....
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....rted as Mithilesh Garg was restricted to the challenge canvassed by an existing operator on the ground of his business being affected by the impugned grant; and no more. 21. Another Division Bench observed in the judgment reported at (2008) 1 CHN 1096 (Sekhar Chatterjee v. State of West Bengal) that the writ petitioners therein were not entitled to maintain a challenge to the STA granting stage-carriage permits for an inter-regional route without reference to the RTAs and without inviting applications from the interested operators. The challenge in that case was as to the authority of the STA to act in the manner complained of. The primary issue that arose before the single Bench was whether the writ petitioners had the locus standi to question the action of the STA. The single Bench relied on the unreported judgments in WP No. 6229(W) of 2002 (Monoranjan Mukherjee v. State of West Bengal) of February 3, 2003, WP No. 8013(W) of 2003 (Amirul Islam Mullick v. State of West Bengal) of January 21, 2004 and WP No. 6875(W) of 2003 (Prosad Konar v. The State of West Bengal) of May 12, 2005 to hold that a writ petition by the existing operators challenging an act of perceived illegality c....
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....t discuss the distinction in appreciating the legal position on the matters in issue. The essence of the decision in Sekhar Chatterjee on such aspect is captured in the following passages at paragraph 14 of the report: "14.... Under such circumstances it is obvious that the locus standi of the existing operators/persons interested/persons aggrieved, has been taken away completely by reason of section 80 of the new Act conferring them a status without any existing right to challenge the grant of permit. Consequently and in the absence of legal right the respondent Nos. 1 to 4 had no locus standi to challenge an act by which a transport authority chose to grant permits to these appellants. Therefore, the finding of the learned Single Judge to the extent holding that the respondent Nos. 1 to 4 were entitled to move the Writ Court, is held to be a finding and/or an order which is contrary to the well-known judgments holding the field in this context." 24. To be fair, the judgment in Sekhar Chatterjee thereafter dealt with the merits of the challenge launched by the writ petitioners and found the same to be without basis. 25. The opinion expressed in Sekhar Chatterjee as to the ....
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....) certain thing in a certain manner, that thing must be done in that manner or not at all and that other modes of performance are necessarily forbidden." In another recent single Bench judgment reported at (2014) 3 Cal LJ Cal 57 (Jiban Kumar Sarkar v. Union of India) the objection on the ground of locus standi was repelled by referring to some of the Supreme Court judgments noticed above and by holding that the objection was "a hyper-technical plea only to thwart the bona fide approach of the petitioners to bring to the notice of this court - exercising its jurisdiction under Article 226 of the Constitution of India - an action of the State which is blatantly and palpably contrary to the statutory laws as applicable." 28. Several judgments have been cited on behalf of the writ petitioners that a challenge under Article 226 of the Constitution can be maintained, even at the instance of an existing operator against a new operator, if the complainant can demonstrate a legal right in his favour and the act complained of is said to be illegal. In the judgment reported at (2005) 3 SCC 683 (Sai Chalchitra v. Commissioner, Meerut Mandal), the court held that a person in the same trade as ....
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....the Rajasthan Sales Tax Act, 1994, the Supreme Court made a distinction between erroneous orders and orders made without jurisdiction by referring to a celebrated authority: "17. All irregular or erroneous or even illegal orders cannot be held to be null and void as there is a fine distinction between the orders which are null and void and orders which are irregular, wrong or illegal. Where an authority making order lacks inherent jurisdiction, such order would be without jurisdiction, null, non est and void ab initio as defect of jurisdiction of an authority goes to the root of the matter and strikes at its very authority to pass any order and such a defect cannot be cured even by consent of the parties. (See Kiran Singh v Chaman Paswan [AIR 1954 SC 340].) However, exercise of jurisdiction in a wrongful manner cannot result in a nullity - it is an illegality, capable of being cured in a duly constituted legal proceedings." 31. In the judgment reported at (2000) 7 SCC 552 (M.S. Jayaraj v. Commissioner of Excise), an existing liquor vendor complained of a rival locating his shop in a range other than for which such rival had been granted a licence. The court noticed the relaxatio....
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....prudence. It is regarded as a rule of policy which promotes predictability, certainty, uniformity and stability. The legal system, it is said, should furnish a clear guide for conduct so that people may plan their affairs with assurance against surprise. It is regarded important to further fair and expeditious adjudication by eliminating the need to relitigate every proposition in every case. In Waman Rao, the Supreme Court quoted with approval from H.M. Seervai on Constitutional Law of India where the author pointed out how important it was for judges to conform to a certain measure of discipline so that decisions of old standing are not overruled for the reason merely that another view of the matter could also be taken. 35. Since certainty and consistency are the bedrock of a mature judicial system, a legal pronouncement of a superior forum, in the hierarchical judicial structure in this country, when cited before an inferior forum is binding on the inferior forum, subject to the caveat that the authority of the superior forum is not per incuriam. A judgment can be said to have been rendered per incuriam - in ignorance of the law - and, therefore, having no binding value if such....
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....experienced and the sagacious. A passage from the judgment reported at (1965) 3 SCR 218 (Shri Bhagwan v. Ram Chand) is poignant: "18. Before we part with this appeal, however, we ought to point out that it would have been appropriate if the learned Single Judge had not taken upon himself to consider the question as to whether the earlier decisions of the Division Benches of the High Court needed to be reconsidered and revised. It is plain that the said decisions had not been directly or even by necessary implication overruled by any decision of this Court, indeed, the judgment delivered by the learned Single Judge shows that he was persuaded to re-examine the matter himself and in fact he had substantially recorded his conclusion that the earlier decisions were erroneous even before his attention was drawn to the decision of this Court in Laxman Purshottam Pimputkar case. It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, needed to be reconsidered, he should not e....
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....he transport authorities, the challenge cannot be repelled only on the ground of business rivalry. 42. The Motor Vehicles Act, 1988 and the rules or policy guidelines framed thereunder bind the transport authorities to act in a particular manner in the matter of grant of permits or allowing commercial plying of vehicles. Several of these statutory provisions have been noticed in the first order of reference and have been referred to by the writ petitioners in course of the present proceedings. Since statutory authorities are bound to act in accordance with law, and the manner in which the law requires them to act, the actions of the statutory authorities are justiciable. If there is a complaint that the grant of a permit or like action is in derogation of the statutory provisions or the rules or policy guidelines framed thereunder or in colourable exercise of authority, the acts complained of can be subjected to judicial review, subject to the complainant suffering or being likely to suffer a degree of prejudice thereby. If the complaint is of the irregular or illegal exercise of authority which results in the complainant being affected or likely to be affected, the status of the ....