SUBRATA KUMAR MAITY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) I have had the benefit of going through the draft judgment of my learned Brother and I record my concurrence with the conclusion arrived at by His Lordship. However, I express my own views to supplement to His lordship's judgment.

(2.) FROM the facts of both the writ petitions it appear that the controversy between the parties viz. Subrata and Gautam is whether the Orissa State authority is justified in refusing to countersign the order of renewal of permit the validity of which is upto 19th December, 2009 on the plea that the timetable attached to the permit is not in accordance with the route. It is the contention of objector, Gautam Sarangi that the timetable should be fixed in consonance with the route for which permit has been granted. It is an admitted position that the inter State carriage permit has been granted from Howrah (within West bengal) to Jaleswar (within Orissa ). Major portion of the length of this route falls within the territory of State of West Bengal and a small portion falls within the territory of Orissa. It is not disputed that originally State carriage permit was issued by the West Bengal Authority on and from 20th December, 1999 and the same remained valid upto 19th December, 2004 with the same timetable attached thereto and at that time the Orissa State Authority counter-signed the same in terms of the reciprocal agreement between the two States upto 30th April, 2000 provisionally. The original timetable attached to the permit shows that the up-trip journey starts from Jaleswar at 4. 20 A. M. and down-trip journey on the same day from Howrah at 13. 15 P. M. and terminates at Jaleswar at 19. 50 P. M. Obviously in order to start for up-way trip Subrata's vehicle had to take night halt at Jaleswar for commencing up trip journey.

(3.) THEREAFTER Subrata applied for counter signature upto 19th December, 2004 with aforesaid timetable to the Orissa Authority and his application was dismissed by Orissa Authority by order dated 29th July, 2002. This order was appealed against and appropriate Tribunal at Orissa held that Orissa Authority could not refuse to countersign the permit with the timings fixed by the West bengal Authority as that amounted to unilateral revocation of the agreement. The said order of the Tribunal was not challenged. Notwithstanding above judgment of the Tribunal the Orissa Authority by an order dated 23rd August, 2005 did not countersign the permit for the subsequent period from 20th december, 2004 till 19th December, 2005 with the same timetable fixed by the west Bengal Authority, rather requested the West Bengal Authority to re-consider and review the timings. In this matter Orissa State Authority has filed affidavit. The stand of the Orissa Authority as well as Gautam, on the question of law, is the same. They say that the timings fixed by the West Bengal Authority is not in consonance with the provision of Section 70 sub Section (2) Clause (iv ). According to them, Subrata's vehicle should take night halt at Howrah as the route mentioned in the permit is very clear that journey must start from howrah to Jaleswar and not vice versa. Going by the definition of the route in section 2 (38) of the Act length of journey from Howrah to Jaleswar is a route, therefore, in conformity therewith the vehicle would start from Howrah for journey towards Jaleswar and on the same day Subrata must come back with his vehicle to Howrah in the evening and should take night halt at Howrah and/ or within the territory of West Bengal. Gautam, in his writ petition, has prayed for writ of mandamus asking the State of West Bengal to change the timings of subrata's vehicle in consonance with the route mentioned in the permit. I, while sitting singly in that matter, at the ad interim stage, directed the State of west Bengal to consider this case of the Gautam upon hearing the relevant persons. We do not know whether it has been heard by the State of West bengal by this time or not. Nothing has been produced before us as to what is the position. In the meantime both the matters went before the learned Single judge, Indira Banerjee. Before His Lordship, the point was taken by both the parties that the route is the pre-dominant part of the permit. On this point a judgement of another learned Single Judge, Aniruddha Bose was placed. His lordship, Bose, J. , while deciding the matter in W. P. No. 15879 (W) of 2004 (Sk. Nizamuddin and Am. v. State of West Bengal and Ors.) was of the opinion that the transport authority has no power to fix timetable aiming at alter the point of origin and end mentioned specifically in the permit. Justice Banerjee could not subscribe to the aforesaid views, hence, the matter is referred to this bench. After hearing the parties and considering the material placed before us we do not think that the aforesaid point needs to be decided in this case at least as the facts and circumstances do not permit us to lay down the proposition of law as it was felt by Indira Banerjee, J either agreeing or disagreeing the views of Bose, J. Before we express my opinion I should deal with the argument advanced by both the parties.