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Mediator Company Ltd. Vs. the State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 983 of 1957
Judge
Reported inAIR1958Cal634,62CWN682
ActsConstitution of India - Article 19; ;Contract Act, 1872 - Section 182
AppellantMediator Company Ltd.
RespondentThe State of West Bengal and ors.
Appellant AdvocateN.R. Biswas, Adv.
Respondent AdvocateN.C. Chakravarty, Govt. Pleader and ;Smriti Kr. Roy Chowdhury, Adv.
Cases ReferredTahir Hussain v. District Board
Excerpt:
- .....of west bengal, inter alia, on the following terms : '(2) that according to the indo-pak visa and passport agreement which was effective from the 15th october, 1952 published by the publicity department, government of west bengal, we are entitled to act as an agent and can procure, visa and passport from appropriate authorities for persons intending, to move between the states. (3) that the high commissioner of pakistan in india, new delhi, permitted us to act as an agent on behalf of our clients. under the above circumstances we would be highly obliged if you kindly give us permission to represent our clients in visa matters and allow us to deposit the same through our authorised representatives. your kind accommodation will save many visa seekers from boring troubles and.....
Judgment:
ORDER

P.B. Mukharji, J.

1. This is an application by the Mediator Company Ltd., a private company one of whose objects is-

'To act as agent of persons to procure passports, visas and repatriation certificates from appropriate authorities for travelling to foreign countries such as U.K., U.S.A., Pakistan, Burma, etc.'

2. The company was duly registered under the Companies Act. It has also a licence from the Corporation of Calcutta to carry on the business.

3. On the 22nd September, 1956 the company wrote to the Visa Officer of the Government of West Bengal, inter alia, on the following terms :

'(2) That according to the Indo-Pak Visa and Passport agreement which was effective from the 15th October, 1952 published by the publicity Department, Government of West Bengal, we are entitled to act as an agent and can procure, Visa and Passport from appropriate authorities for persons intending, to move between the States.

(3) That the High Commissioner of Pakistan in India, New Delhi, permitted us to act as an agent on behalf of our clients.

Under the above circumstances we would be highly obliged if you kindly give us permission to represent our clients in visa matters and allow us to deposit the same through our authorised representatives. Your kind accommodation will save many visa seekers from boring troubles and from unnecessary expenses.'

4. In answer to this the Additional Passport-cum-Visa Officer to the Government of West Bengal replied on 31-10-1956 in the following terms :

'I am directed to state that Passport Office of the Government of West Bengal deals directly with applicants for passport and visa etc. and does not accept applications through intermediaries.'

5. It is now the applicant's case that this affects its constitutional right to carry on the business of agency under Article 19 of the Constitution of India. The company, therefore, asks under Article 226 of the Constitution for a writ of Mandamus directing the Government to grant the requisite permission to the petitioner to apply for and obtain on behalf of its clients and/or constituents visas and passports from the West Bengal Passport Office and to do everything needful for the purpose.

6. The fundamental point is whether the applicant company can be said to have a legal right to compel the Government to allow the applicant to apply for and obtain on behalf of its clients and constituents visas and passports and to do everything needful for the purpose, as mentioned in prayer (1) of the petition. The demand of the applicant which was refused by the Government appears in the penultimate paragraph of the applicant's letter to the Visa Officer, dated the 22nd September, 1956, which I have quoted above. That was a demand for permission to represent the applicant's clients in visa matters and to allow the applicant company to deposit the same through its authorised representatives. Now, the law of agency, as I understand, does not go so far as that. Between the agent and the principal the position is governed by the terms of the contract of agency. An agent may be the most lawful and the most complete agent for the principal. In that case the law says that the agent is almost a substitute for the principal and the third parties dealing with the agent are protected as if they have dealt with the principal. Cut the question is more fundamental in this case. It is this: Does the law of agency go further and say that the outside world of the third party is compelled to recognise a lawful agent? I do not think the law of agency imposes such a compulsion as it cannot because the third party is not bound by the private arrangement made between the agent and his principal. The third party may certainly have the freedom to accept the agent, in which event the law gives him the protection which I have said. But that is very far from saying that the law will compel a third party to accept the agent. He is always free to say that he will not deal with agents, brokers or intermediaries but deal directwith the principal.

7. This leads to the consideration of the basic question in this application whether there is at all any infringement of the applicant's right to carry on the business as guaranteed by Article 19 of the Constitution of India. The Government's method of directly dealing with the travellers in matters of passport and visa in respect of Indo-Pak travelling and not to accept applications from intermediaries does not at all affect the essential business of theapplicant company. The applicant company can still act as the travelling agent for its clients and constituents. As travelling agent the applicant company can still advise its constituents and clients, help them with necessary details of passport and visa forms, inform them what rules and regulations they have to satisfy and then when the travellers have done all made is required of them to do, the applicant company can take them to the passport office or the visa office. All that business which is the real business of the company remains unaffected. The only effect of the Government not dealing with the intermediaries but dealing with travellers direct in Indo-Pakistan travelling is that the Government docs not recognize the agent of the travellers, specially an agent who is a hired agent in the sense of carrying on a business of agency for paid consideration. I am therefore bound to hold that essentially applicant's business of travel agency is not at all affected by the Government's order as communicated in its letter of 31-10-1956.

8. I should, therefore, hold that there is no legal right on the part of the applicant company to compel the Government to accept the company's representation for its clients and constituents and that there is no legal obligation on the part of the Government which I can enforce by a writ of Mandamus. In fact, there is no legal right which is the foundation for this writ of Mandamus as pointed out by Kama C. J., in the Supreme Court decision of the State of Orissa v. Madan Gopal, reported in 1952 SCR 28 at page 33: (AIR 1951 SC 12 at p. 13) (A). I must also hold that actually in point of fact no real business of the applicant company as travelling agent is at all affected by that Government order. Therefore this application must fail first on the point of absence of legal right and secondly on the ground that in fact and in essence there is no infraction of the applicant company's right to carry on the business of travelling agent.

9. The Indo-Pak travel scheme to which theapplicant company itself referred in its letter of demand elated 22-9-1956 and addressed to the Visa Officer of the Government of West Bengal pre-vides in Part I, Rule (h) as follows:

'It shall not ordinarily be necessary for an applicant for visa to appear personally before the visa issuing authority in order to obtain a visa.'

10. This exempts travellers from personal appearance and that also ordinarily. It does not follow from this rule that a traveller may claim as of right to appear always through an agent, still less it does not follow that a travelling agent apart front the travellers can claim a right to represent the traveller in every case.

11. Part II of the same travelling scheme which incidentally was published by the Government of West Bengal, Home Department, Political (C. R.) and came into force on 15-10-1952 pre-vides in Rule 6 as follows:

'Application for a passport may either be made personally or by post or through an agent, direct to the Passport Officer attached to the Provisional Government concerned etc .............'

12. On this point the Government of India Issued a directive to all State Governments. This will be found in the Government of India, Ministry of External Affairs, D. O. No. 57 (14)/58-PSP, New Delhi, dated 3-1-1957 dealing with the subject of prohibition of agents for securing Indian Pakistan Passports and Visas. The relevant portion o that directive is as follows:

'The word 'agent' used in paragraph (6) of Part II of the Indo-Pakistan Passport and VisaScheme is not intended to create a class of intermediaries to carry on a business of obtaining passports for others on commission.'

13. It will appear, therefore, that the word 'agent' in paragraph (6) of that Indo-Pakistan Travel Scheme means not a hired agent or a commissioned business agent. The reason for putting this restriction appears from paragraphs 5 (ii) and 5 (iii) of the affidavit of the Additional Passport-cum-Visa Officer of the Government of West Bengal filed in these proceedings. In substance that reason may be briefly stated. It is said that experience has shown that majority of the applicants for such passports & visas are extremely poor and financially unsound and a large percentage of them are so illeterate that they cannot even affix their thumb impressions on the passports and visas, ete. The Government, therefore, felt that these people should not be allowed to be exploited by any person or group of persons acting purely on financial consideration. It was, therefore, in the interest of these people and in order to remove all difficulties and to maintain direct touch with the travellers that the Government of West Bengal with the object of decentralisation of the Indo-Pakistan Passport system have opened offices both at the State and the District Head Quarters as far as possible. Another administrative reason is also put forward by the Government. It says that common experience of the Government has been that the application presented by these travellers for visas or passports contain errors and omissions and the necessary documents, namely, the visas or the passports cannot be issued without rectifying such errors or omissions. If they are pointed out to the applicant himself then they can be rectified immediately and the necessary document issued to the applicant without delay. But if the applications are submitted in bulk by agents it would not be possible to scrutinise the whole lot and the result would be delay and red-tapism. I do not see anything unreasonable in the view based on such reasons.

14. This company made a previous application under Article 226 of the Constitution in 1956. At that time the company's complaint was that the agents of the company assembled in front of Pakistan Visa Office were interfered with by the police. The application ultimately fizzled out because it is said that the Advocate for the Government stated that the police interference, if it could be called an interference, had been completely removed. Sinha J., who ultimately discharged the Rule on 19-2-1957, observed that the Counsel for the applicant company then tried to use this very ground, which he has used now in the present petition. Sinha J., did not deal with that point because that was not a ground in the petition at that time.

15. It appears to me plain that travelling agents throughout the world have to work under the Government rules and regulations in respect of Passport and Visas prevailing in the country and the fact that a company is incorporated, registered or licensed to carry on a business as travelling agent could not by itself give them a legal right to represent travellers for visas and passports if the Government of the country concerned does not deal with agents but deal with travellers directly. Under the law of agency, as I understand and as I have discussed above, I do not think that the Government is at all bound in any way or compelled in law to accept an agent for the travellers.

16. In conclusion a brief reference to the case of Tahir Hussain v. District Board, Muzaffarnagar, : AIR1954SC630 (B), is necessary because it was cited by the learned Advocate for the applicant. That was a case of bye-law under U. P. District Boards Act prohibiting the holding of a market. The question there in the Supreme Court was, as pointed out by Ghulam Hasan J., who delivered the judgment in that case, whether the bye-law could be said to be in conformity with the U. P. District Boards Act. The District Boards Act in that case said that the bye-law could only be made for 'regulating' markets but the impugned bye-law in that case instead of regulating the market completely prohibited the holding of the market and that was said to be ultra vires the section of the Act. This case or its principle, to my mind, has no application to the point involved here. Here it is not a question of any particular bye-law being ultra vires the Statute under which the power to make bye-law is given. Here it is a question whether a third party can be bound to accept an agent and secondly whether there is at all any infringement of the applicant's right to conduct the business of travelling agent. On both these points I am bound to find against the applicant.

17. For these reasons I discharge the Rule and dismiss the petition, but I make no order as to costs.

Interim order, if any, is vacated,


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