TMI Blog2015 (2) TMI 1376X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 complainant as a business rival of the beneficiary of the irregular or illegal executive largesse will not stand in the way of the complaint being received for judicial review. The primary question raised in the two orders of reference is answered thus: subject to the considerations as to there being an efficacious alternative remedy, a writ petition at the instance of existing operators providing stage-carriage services on different routes, who seek to challenge the grant of fresh permits in favour of new operators (either on the self-same routes on which they have been operating or touching a portion of the same) by the transport authorities is maintainable if the challenge is on the ground of illegality or arbitrariness or colourable exercise of power or otherwise being violative of Article 14 of the Constitution, notwithstanding that the action may be impelled by the commercial interests of the existing operator; provided that, the substance of the challenge is not founded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 988 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. Such principal question has been quoted in the second order of reference along with the supplemental question extracted above. The second order of reference has been passed in the other clutch of petitions. The case made out in the first of the petitions, which is covered by the order of reference of October 8, 2013, is that the petitioners are holders of stage-carriage permits on different routes all termi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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, 2013 in APOT No. 51 of 2013 (Shyamal Mukherjee v. The State of West Bengal) which interpreted Mithilesh Garg to be relevant only for the purpose of considering a prayer for a route permit. In Shyamal Mukherjee, the Division Bench observed as follows: ...The judgment in the case of Mithilesh Garg has no manner of application. That judgment is relevant only for the purpose of considering the prayer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rings 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 noticed and it was observed in the second order of reference that a similar view as in Shyamal Mukherjee had been expressed in an unreported single Bench decision in WP 6875(W) of 2003 rendered on May 12, 2005 (Prasad Konar v. State of West Bengal) but such opinion was not accepted by the Division Bench in Sekhar Chatterjee. The question formulated in the first order of reference was repeated in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 Chapter V of the Act that have been referred to by the parties complaining against other operators plying their vehicles in contravention of the law or the applicable rules are Sections 80, 88 and 90 thereof. Section 80 deals with the procedure in applying for and in granting permits. Section 88 allows the permit granted by the RTA of one region to be valid in another region upon it being c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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(3)(a) of the 1988 Act to be a provision...under which a limit can be fixed for the grant of permits in respect of the routes which are within a town having population of more than five lakhs. 14. The Supreme Court observed in Mithilesh Garg that the petitioners in that case were in full enjoyment of their fundamental right...under Article 19(1)(g) of the Constitution...(and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainability 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 succeeded before the single Bench on the ground that no new route had been formed under Section 68(3)(ca) of the 1988 Act. The order was set aside by the Division Bench on its perception that the rule in Mithilesh Garg applied to the case since the basis of the writ petitioners' objection was that their business interests were affected by the acts complained of. To t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenge 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 could be maintained. The Division Bench in Sekhar Chatterjee summarised the view taken by the single Bench to imply that if the transport authorities acted illegally or arbitrarily or in patent violation of the provisions of law, then the existing operators on a route, even in the face of the provisions of the Motor Vehicles Act, 1988 and the rules framed thereund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 locus standi of existing operators to challenge the grant of new permits, is similar to the views taken in previous Division Bench judgments reported at AIR 2007 Cal 252 (Sanjit Chakraborty v. State of West Bengal) and AIR 2008 Cal 31 (Mobesher Hossain Mondal v. Sekhar Chatterjee). In the appeal in Sanjit Chakraborty, the Division Bench observed, at par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 another whose licence was sought to be cancelled could otherwise maintain a writ petition if the cancellation of the licence was sought on the ground of the issuance thereof being in violation of any statute or the rules framed under any statute. In Pancham Chand v. State of Himachal Pradesh reported at (2008) 7 SCC 117, a matter pertaining to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 relaxation of the rule of locus standi by the Supreme Court in the 1980s and the 1990s. The court referred to the dilution of the strict rule, particularly in public interest litigation, and observed that if the excise commissioner had no authority to permit a liquor shop owner to move out of the range for which the auction was held, it would be im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 judgment is contrary to any statute or it is contrary to the judgment of a superior forum. 36. If a judgment of a Division Bench is placed before a single Judge of the same High Court, then the law recognised in such judgment is binding for all practical purposes unless the judgment is patently contrary to the applicable statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les. 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 complainant as a business rival of the beneficiary of the irregular or illegal executive largesse will not stand in the way of the complaint being received for judicial review. However, if there is a tribunal entitled to receive such complaint, the High Court in exercise of its jurisdiction under Article 226 of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
