SUBRATA TALUKDAR,J. - (1.) The central issue in this writ petition is the proposed shifting of the bus stand commonly known as Band Stand, also Babughat, to a new Inter-state Bus Terminus (for short ISBT) at Santragachi, Howrah.
(2.) The writ petitioners are all Inter-state Bus Operators whose services both commence from and terminate at Band Stand. In the writ petition under challenge is the resolution of the High Power Committee (for short HPC) dated 11th August, 2015 by which it was, inter alia, decided to proceed with the phase-wise shifting of ISBT to Santragachi.
(3.) The principal arguments advanced by Sri Hirak Mitra, Ld. Senior Counsel appearing for the petitioners are as follows:- (a) That under the provisions of the Motor Vehicles Act, 1988 (for short the 1988 Act) the operations of inter-state buses take place on the basis of reciprocal agreements entered into between States. Such reciprocal agreements become final after the period invited for receiving objections closes and, in terms of such agreements the routes as well as the termini of the said routes cannot be subsequently superseded by any other methodology such as adopted by the HPC at its meeting dated 11th August, 2015. (b) That the Hon'ble Division Bench of this Court had the occasion to deal with the policy decision of the State Government connected to grant of new permits in respect of stage carriages on both notified and non-notified routes. Pursuant to the judgment of the Hon'ble Division Bench In Re: Sujata Ganguly v. The State of West Bengal and Ors. (FMA 604 of 2004)vide judgment and order dated 27th September, 2005 , the policy and procedure for granting new permits, including the exclusion of the Central Business District (for short CBD) from the purview of the grant of new permits was notified by the State Government and pursuant to such notification the bus operators, including the present petitioners being inter-state operators are using Band Stand/Babughat as a terminus. (c) Sri Mitra submits that the primary reason for shifting the bus terminus to Santragachi is the purported pollution being caused to the Victoria Memorial (for short VM). Pointing out that the aspect of pollution falls within the purview of a Central Legislation under The Air (Prevention and Control of Pollution) Act, 1981, Sri Mitra argues that therefore the State Government has no role to play. Relying the recognised legal principle of Occupied Field, Sri Mitra submits that since the matter of pollution lies within the eminent domain of the Central Government, on the ground of pollution no shifting of the bus stand can be ordered by the HPC functioning under the State Government. (d) Sri Mitra takes the next point that in the event there is a threat of pollution caused to VM by the inter-state buses, there ought to have been a representative of a body dealing with pollution in the HPC. However, while discussing the issue of the pollution hazard to VM the Hon'ble Apex Court makes specific mention of a body such as the National Environmental Engineering Research Institute (for short NEERI), no representative of NEERI is found in the HPC. (e) Sri Mitra submits the additional point that the order impugned of the HPC dated 11th August, 2015 is without reasons. Also referring to the orders passed by the Hon'ble Apex Court and the Hon'ble Division Bench of this Court from time to time, Sri Mitra points out that reference has been made to Esplanade Bus Stand only and, there is no reference to Band Stand. Therefore, the judicial intention was clear which is to reduce the pollution caused to VM because of the functioning of the Esplanade Bus Terminus. In this connection Sri Mitra argues that a large number of local buses ply daily on routes bordering VM and, are major emitters of pollutants. However, in the case of the present writ petitioners the buses merely park for some time at Band Stand. Such parking at Band Stand does not at all affect the pollution level at VM and, the HPC instead of tackling the plying of local buses around VM is diverting the issue by ordering the inter-state buses out of Band Stand. (f) Further arguing that the petitioners are operating their interstate buses from Band Stand for a long time and such operations touch the issue of their livelihood, Sri Mitra submits that there is no conflict of jurisdiction in moving this writ petition before this Hon'ble Court although a Public Interest Litigation (for short PIL) on the issue is already pending before the Hon'ble Division Bench of this Court. In support of his argument Sri Mitra relies upon the judgement of an Hon'ble Single Bench of this Court in WP 22586(W) of 2014 dated 25th August, 2014 which, inter alia, granted leave to the writ petitioners to approach the competent Court at the appropriate stage. Sri Mitra points out that by the said order dated 25th August, 2014, the Hon'ble Single Bench found the writ petition to be pre-mature and therefore observed, inter alia, as follows:- "In the event in future the petitioners have grievance on this point, they shall be at liberty to apply afresh before this Court or such other forum as they may be advised. As no affidavit has been filed on behalf of the respondents, allegations made in the writ petition against them shall be deemed to have not been admitted. The writ petition shall stand disposed of in the above terms." Having regard to the above noted direction of the Hon'ble Single Bench Sri Mitra argues that the present writ petition is maintainable. (g) The next point taken by Sri Mitra is that the findings of the HPC dated 11th August, 2015 are de hors the principles of natural justice. Although the writ petitioners are vitally affected because of the shifting directed to take place to Santragachi none of the grievances raised by the writ petitioners as canvassed through their representations dated 5th of August, 2015 and 19th of August, 2015 were addressed by the HPC. Therefore, on the point of violation of the principles of natural justice, Sri Mitra submits that the decision proposed vide the impugned resolution of the HPC dated 11th August, 2015 requires to be set aside. (h) In support of the principles of law elucidated in his arguments, Sri Mitra relies upon the following judicial authorities:- On the doctrine of occupied field 1991 (4) SCC 243; On the point that the order impugned dated 11th August, 2015 does not contain any reasons: 1968 AC 997; On the point that the State-respondents cannot improve their case through affidavit: AIR 1978 SC 851; On the principle of natural justice: 1981 (1) SCC 664. Sri Mitra reiterates the point that an authority visited with powers to do certain functions is required to exercise such powers on its own without delegating such powers to some other authority. Therefore, when the power is conferred for doing a particular act in a particular manner, such power must be exercised in the manner conferred and, not in any other manner.;