Davinder Singh vs State of J. and K. and Others

S.M. Rizvi, J.—By medium of this writ petition, the order dated 20-3-1992, passed by the Regional Transport Officer, Jammu, herein- after

for short ""RTO"", as contained in Annexure VII to the writ petition, rejecting the application of the petitioner for grant of stage carriage permit to

Bus No. JKR/9639, from Jammu Railway Station to Katra, is challenged, inter alia, on the following grounds:

1) That in pursuance of the order of this Court dated 10-2-1992, passed in writ petition No. 235 of 1992, the respondent No. 3 asked the

petitioner to attend his office and complete all the necessary formalities for the grant of temporary permit for the route in question;

2) That he completed all the necessary formalities as desired by respondent No. 3, and deposited Rs. 10,000/- as permit fee besides CDR for Rs.

200/- and token tax of Rs. 1200/-;

3) That he also surrendered his ""All India Permit"" of the said bus, earlier granted to him, as desired by the respondents;

4)That the assurances given to him by the respondents that the Route permit in question will be issued to him all proved in vain. He was made to

spend fifty thousand rupees for renovating the bus;

5) That after accepting fee from him and extending assurances to him, the respondents could not refuse the permit to him, as a right had accrued to

him thereunder. The petitioner acted on their letter, and therefore, the respondents were legally bound to fulfil the promise made to him;

6) That the petitioner's bus has been made to remain idle as a result of the omissions and commissions of the respondents;

7) That the order impugned rejecting his application was passed without affording him an opportunity of being heard, and therefore, it was a nullity

in the eye of law;

8) That his earlier writ petition was rendered infructuous as a result of the passing of the impugned order;

9) That the buses bearing Nos. JKS/7576, JKS/5769, JKQ/678, 5851 and 6109 were granted permit on the said route, and he was discriminated

against.

In the objections filed by the respondents to the admission of the petition, it is stated that as a result of an order of the High Court, the case of

the petitioner for issuance of route permit was considered, but he was not found entitled to the same. It is also stated that he has filed more than

one writ petition for the same relief. It is further stated that the order of the learned single Judge directing the respondents to issue a temporary

route permit to the petitioner was stayed by a Division Bench, and therefore, they were not obliged to issue the same to him. It is further admitted

that alternate remedy was available to the petitioner, as he could file an appeal against the order of Regional Transport Authority to the State

Transport Appellate Tribunal. It is also stated that the petitioner's vehicle is more than five years old, and therefore, the route permit could not be

issued to him.

In the said counter, it is admitted that the respondent No. 3 had asked the petitioner to complete all the formalities. However, on examination of

his case, he was not found entitled to it: It is also admitted that the petitioner had deposited the Permit fee etc., but allegedly before respondent No.

3, who was not competent to issue the same.

It is also admitted in the counter that three vehicles JKS/5769, JKS/5776 and JKQ/7687 were issued the Route Permit for the route in

question.

It is further stated therein that ""assuming the order in favour of Wing Commander R.N. Dogra is wrong, the petitioner cannot file a writ petition

to repeat a wrong order"".

After considering the case for its admission, the writ petition was admitted to hearing on 2-12-1992, and the respondents were given six weeks

time to file the counter. They have failed to file any counter.

I have considered the written arguments submitted by the learned counsel for the parties, and have gone through the file thoroughly.

The first question to he considered is that the respondents have failed to file any counter after the writ petition was admitted in hearing, and

therefore, what sort of presumption is to be drawn against them, if any. Admittedly, no such counter has been filed by the respondents despite a

reasonable opportunity granted to them in this behalf. They did not even file any application for extension of time in filing the counter.

The admitted position of law is that if no counter is filed to the averments made in the writ petition on an affidavit, the contentions made therein

are to be deemed as correct.

In this view of the matter, without going any further, the writ petition is liable to be allowed, and the prayer made therein to be granted.

However, despite all this, I would like to go into the merits of the case as well, keeping in view the fact that objections have been filed by

respondent No. 2 to the admission of the writ petition, which are on affidavit. Strictly speaking, however, the said objections have lost validity after

the admission of petition, moreso, when no prayer was made by the respondents to treat their objections filed to the admission of petition as a

counter to the same. The respondents have not bothered to make any prayer in this behalf.

From the perusal of file, it appears that the petitioner has been clamouring for a route permit for his bus on the route in question since long. He

has brought it to the notice of the respondents and given specific instances to them in this regard that such permits have been granted to some

others similarly circumstanced persons, and he only was discriminated against. In the objections filed by respondents, it is admitted that there are

some instances where the route permits were granted. In one case it has been sought to be justified on the ground that the owner of the bus was a

Veer Chakra holder. However, it is not stated as to whether under what law he is entitled to the same. If one person is granted the permit who

under law does not form any exception to the rule, it would definitely amount to discrimination against the person not given the same. The petitioner

as also the Vir Chakra holder are both citizens of India, and for claiming a route permit, they are similarly situated.

It is also a fact that the respondents wrote a letter to the petitioner asking him to complete the necessary formalities for getting the route permit

in question. He, accordingly, acted upon the said letter, deposited the required fee and renovated his bus for the said purpose. He was made to

change his position after they made an offer to him. Thereafter, they rejected his application, and that too, without affording an opportunity of being

heard, to him.

The question is whether the respondents could do it, The petitioner acted upon their promise and he was made to change his position, and then

whimsically at his back, he was deprived of a right which had vested in him by the said offer. He was at least entitled to a hearing before the order

was passed against him. The grant or otherwise of a State largess is to be considered fairly and with reasonableness. As a matter of fact, every

activity of the Government or its instrumentalities has a public element in it, and it must be based on reason and guided by public interest. It is not

well established law that the State cannot make discrimination in the matter of its largess even in the grant of permits and quotas. In the famous

case of Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, , it has been held, as under (at pp. 1636 and 1637 of

AIR):

Today the Government, in a welfare State is the regulator and dispenser of special services and provider of a large number of benefits, including

jobs, contracts, licences, quotas, minerals rights etc. The Government pours forth wealth, money, benefits, services, contracts, quotas and licences.

The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional

forms of wealth. These valuables which derive from relationships to Government are of many kinds. They comprise social security benefits, cash

grants for political sufferers and the whole scheme of State and local welfare. Then again, thousands of people are employed in the State and the

Central Government and local authorities. Licences are required before one can engage in many kinds of businesses or work. The power of giving

licences means power to withhold them and this gives control to the Government or to the agents of Government on the lives of many people.

Many individuals and many more businesses enjoy largess in the form of Government contracts. These contracts often resemble subsidies. It is

virtually impossible to lose money on them and many enterprises arc set up primarily to do business with Government. Government owns and

controls hundreds of acres of public land valuable for mining and other purposes. These resources are available for utilisation by private

corporations and individuals by way of lease or licence. All these mean growth in the Government largess and with the increasing magnitude and

range of governmental functions as we move closer to a welfare State, more and more of our wealth consists of these new forms. Some of these

forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges. But on that account, can it be said

that they do not enjoy any legal protection? Can they be regarded as gratuity furnished by the State so that the State may withhold, grant or revoke

it at its pleasure? Is the position of the Government in this respect of the same as that of a private giver? We do not think so. The law has not been

slow to recognise the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has

developed new forms of protection. Some interests in Government largess, formerly regarded as privileges, have been recognised as rights while

others have been legal protection not only by forging procedural safeguards but also by confining/ structuring and checking Government discretion

in the matter of grant of such largess. The discretion of the Government has been held to be not unlimited in that the Government cannot give or

withhold largess in its arbitrary discretion or at its sweet will. It is insisted, as pointed out by Professor Reich in an especially stimulating article on

the new property"" in 73 Yale Law Journal 733, ""that Government action be based on standards that are not arbitrary or unauthorised"". The

Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey

hair or belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in the

matters of granting largess and it cannot act arbitrarily. It does not stand in the same position as a private individual.

After all, the petitioner had a right of consideration in a reasonable and judicious manner. He had a right to be given on opportunity of being

heard before the order was passed against him, and his application was rejected. This has not been done. The respondents without hearing him

and without giving him an opportunity to establish his case, rejected his application. They were bound to give him such opportunity, as they had

made him to change his position after asking him to complete all the necessary formalities. He deposited the fees, renovated the bus, but it all

proved a farce.

In my opinion, the respondents have deprived the petitioner of a reasonable opportunity of being heard while passing the order rejecting his

application. The said order is, therefore, bad in law and not sustainable.

Now, as regards the objection of the respondents that the petitioner had an alternate remedy by way of an appeal which he has not availed of,

suffice to say, that each case has its own merits, and the existence of alternate remedy per se is not a bar to issue a writ of certiorari.

In The State of Uttar Pradesh Vs. Mohammad Nooh, it has been held that it must be borne in mind that there is no bar with regard to

certiorari, as there is with mandamus, that it will be only where there is no other equally effective remedy. It is well established that, provided the

requisite grounds exist, Certiorari will lie although a right of appeal has been conferred by a Statute. This rule requiring the exhaustion of statutory

remedies before the writ will be granted, is a rule of policy, convenience and discretion rather than rule of law and instances are numerous where a

writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies.

In this view of the matter, the availability of alternate remedy to the petitioner should not be a bar to him to file this writ petition in the peculiar

circumstances of the case.

The other objection taken by the respondents is that another writ petition has been filed by the petitioner at Srinagar and is still pending

disposal, and therefore, the pre-sent petition is not maintainable.

It appears that the petitioner had filed a writ petition at Srinagar praying therein for a direction to the respondents to consider his case for

issuing a route permit to him. In that petition, an order came to be issued to the respondents that pending consideration of his case, a temporary

route permit should be granted to him. Lateron his case was rejected by the order impugned in this writ petition. The said order was not in

existence at the time when the writ petition was filed at Srinagar. In that view of the matter, the two writ petitions are not identical. Moreover, the

petitioner has submitted that after passing of the order impugned, the writ petition pending at Srinagar has been rendered infructuous.

I have given my anxious consideration to all the facts and circumstances of the case, and in my opinion, the order impugned suffers from

unfairness and unreasonableness, and is therefore, illegal. It has been passed at the back of the petitioner, without giving him an opportunity of

being heard. The said order, therefore, is not sustainable in the eye of law. The order impugned is, therefore, hereby quashed. The respondents are

directed to issue a notice to the petitioner and"" afford him a reasonable opportunity of being heard, before passing a final order allowing and/or

rejecting his application for grant of permit in question for his bus. In the meanwhile, the petitioner should not be made to suffer any more. Issuance

of notice to him and affording him a reasonable opportunity of being heard may take sometime. Till the legal requirements are fulfilled by them in

this regard, the respondents are directed to consider issuance of a temporary permit to him within a week's time for the route in question. It is

expected of respondents to be above board while considering the case of the petitioner for grant of Route permit to his bus, and they should not be

revengeful to him for having exercised his fundamental rights in approaching this Court for getting his grievances redressed. He is a young Advocate

and has not so far been able to establish his practice at the bar, and appears to have invested his parental earnings in purchasing the bus, which too

has been made to remain idle for a pretty long time. His frustration, therefore, is justified and the outburst against the respondents as expressed in

the writ petition also condonable.

In the peculiar circumstances of the case, I pass no order as to costs.