Sri Om Prakash Gupta vs The State of West Bengal and Others

Hon''ble Mr. Justice Jayanta Kumar Biswas

After hearing advocates for the parties, I am of the view that the CAN filed for restoration of the WP to file should be allowed. The WP was dismissed for non-appearance of the petitioner. Since I have determination to take up the WP, I have invited advocates to argue the case; and accordingly, they have argued.

Advocate for the petitioner submits as follows. South Bengal State Transport Corporation (in short SBSTC) has been plying vehicle on a route for which, after cancelling SBSTC''s permit, permit was granted to the petitioner. Since the illegal operation has affected the petitioner''s fundamental right under art. 19(1)(g) and SBSTC is a statutory corporation, the petitioner is entitled to approach the Writ Court.

Even if it is assumed that SBSTC has been unauthorisedly operating its vehicle on the route, I am unable to see how that can amount to infringement of the petitioner''s fundamental right under art. 19(1)(g). No provision of any law entitled the petitioner to submit the objection in question asking the authorities to whom it was sent to take action against SBSTC. Hence alleging inaction the petitioner is not entitled to seek the public law remedy.

Simply because he has made an objection, this Court is not supposed to exercise power under art. 226 for directing the authorities concerned to make an inquiry and take action against SBSTC. Such an order will amount to a direction upon the authorities to exercise non-existent power. Power not conferred by any law cannot be created by the Court and conferred on the authority. The petitioner''s remedy, if any, was before the ordinary Civil and Criminal Courts. For these reasons, I allow the CAN, restore the WP to file and dismiss it on merits making it clear that nothing herein shall prevent the petitioner from approaching the Civil and Criminal Courts. No costs. Certified xerox.