Calcutta High Court
Smt. Mala Roy vs The State Transport Authority & Ors. on 28 August, 1998
Equivalent citations: (1999)3CALLT201(HC)
Author: S.B. Sinha
Bench: Satyabrata Sinha
JUDGMENT S.B. Sinha, J.
1. This application is directed against an order dated 23.5.96 passed by the State Transport Authority, West Bengal whereby and whereunder permanent stage carriage permits on the routes Siliguri to Patna via Bakhtiarpur were directed to be granted in favour of Sri Sunil Kumar Mitruka, the respondent No. 3 herein.
2. On 27.5.88 a notification was published as contained in annexure 'A' to the writ application for grant of stage carriage permit for the aforementioned route; whereafter, an advertisement was also published on 9.9.1988 as contained in annexure 'B' to the writ application. The respondent No.3 filed an application for grant of permanent stage carriage permit on the said route and by a resolution dated 14.6.89 the same was rejected. An appeal was taken from the said order without impleading the successful candidates.
3. A writ application was filed before this court against the said order which was disposed of on .19.3.1991.
4. A subsequent notification was issued as regard another vacancy in respect whereof respondent No. 3 again filed an application whereafter the State Transport Authority issued a notice including on route Siliguri to Patna via Bakhtierpur in relation whereto only one permit was to be issued.
5. As against the order dated 19.3.91 an appeal was preferred which was marked as F.M.A.T No. 1153 of 1991 and by an order dated 19.6.91 the appeal court directed that status quo should continue till further orders of the tribunal in the pending appeal and the tribunal was directed to dispose of the appeal preferred by respondent No. 3 expeditiously. The petitioner also filed a writ application before this court which was disposed of by directing State Transport Authority to consider her application. The tribunal passed an order of status quo. As in view of that order the petitioner's application was not considered, she was advised to get the order of status quo vacated. The petitioner filed an application for addition of party in the appeal preferred by the respondent No. 3 but the said application was rejected. A revision application there against was filed before this Court under Article 227 of the Constitution of India and by an order dated 25.1.95 the said order of the tribunal was set aside and the application for addition of party before the the Tribunal was allowed. The said appeal was disposed of with a direction upon the State Transport Authority to pass an appropriate order after hearing the parties.
6. On 14.12.1995 the petitioner submitted relevant documents in regard to the vehicle before the State Transport Authority. The petitioner and the respondent No. 3 were heard on 31.3.96 but it appears that a written submission was filed on 6.2.96.
7. By reason of the impugned order the State Transport Authority held :-
"The entire matter relating to grant of permanent stage carriage permit on the inter-state route Siliguri to Patna was placed before the STA, West Bengal in its meeting held on 31.1.96. Both parties/ their representatives were heard by the STA, West Bengal on that day. Pursuant to the proceedings of that meeting Smt. Mala Roy and Sri Sushil Kr. Mitruka have submitted written representations before the STA. West Bengal.
The STA considered eligibility of the candidates for grant of permit on the route Siliguri to Patna via Bakhtierpur. A comparative study of the two candidates shown that Smt. Mala Roy did not have any vehicle under her possession which could be granted a permanent permit for five years. The vehicle produced by Smt. Mala Roy had been hired by her only on 3-2.96 i.e. after the STA meeting on 31.1.96. But Sri S. Mitruka was the owner of a 1983 model vehicle and he had also produced another vehicle of 1995 model. Since the selection to be restricted to the above applicants only, the STA found that Sri Sushil Kr. Mitruka was the better of the two candidates and was chosen for the permit."
8. Mr. Asoke De, the learned counsel appearing on behalf of the petitioner submitted that the respondent No. 3 had already been granted a permit for the route Siliguri to Patna via Mujaffarpur. According to the learned counsel the inpugned order cannot be sustained as the petitioner had already booked a chassis and also filed letters showing her financial stability. The learned counsel submits that it was not necessary to possess the Bus as has been held by this court in Binay Kumar Biswas v. Regional Transport Authority, Calutta Region, Calcutta & Ors. reported in 1996(1) CLJ 140. It was further submitted that whereas the respondent No. 3 had offered a 1983 model whereas had an opportunity been given to the petitioner, he could have placed a 1995 model Bus. The learned counsel submits that the authorities were bound to follow the requirement of law as has been held by this court in Jhikira Howrah Bus Syndicate & Ors. v. Regional Transport Authority, Howrah & Ors. reported in 1996(1) CLJ 397. The learned counsel further contends that in any event keeping in view the facts and circumstances of this case, the respondent authority ought to have considered the question of grant permit by spitting up the same between the petitioner and the respondent No.3. Reliance in this connection has been placed on M/s. Vivekananda Travels v. Secretary, State Transport Authority reported in 1986(2) CHN 416 and M/S. Chinnaswamy v. M/s. Dhandayuthanpani Roadways (P) Ltd. . Mr. De submitted that although certain documents had been filed after the hearing was over but as the said documents were before the authorities while passing the order, it committed an illegality in not taking into consideration the said documents.
9. Mr. Samanta, the learned counsel appearing on behalf of the respondents, on the other hand, submitted that his client had more experience in the matter as he had been operating his buses in the said routes since 1985 by reason of successive grant of temporary permit. The learned counsel submitted that although the Supreme Court in its decision in Mithilesh v. Union of India has liberalised the policy of grant of permission, the said principles cannot be applied in relation to an inter-state permit. It was submitted that while possession of vehicle may not be necessary in case of general vacancy, the same constitutes an integral part in the case of inter-state permit. The learned counsel contends that the petitioner could not have filed certain documents after the arguments were over behind the back of the respondent No. 3. It had further been submitted that the respondent No. 3 had also produced certificate relating to his financial stability.
10. Section 63 of the Motor Vehicles Act, 1939 provided for validation of permits for use in outside region. In the instant case admittedly an agreement had been entered into be and between the State of West Bengal and the State of Bihar, pursuant whereto the numbers of permit are restricted. The agreement was published in the Official gazette in terms of section 63(3B) of the said Act. The matter relating to grant of permit for use outside region is now controlled by section 88 of the Motor Vehicles Act, 1988. Sub-sections (5) and (6) of section 88 provide for publication of the agreement -in Official Gazette as also in the Newspaper which provisions had been complied with in terms of annexures 'A' and 'B' to the writ application.
11. In Mithilesh Garg etc. v. Union of India & Ors. , the apex court taking into consideration the fact that the provision of section 47 and 57 of the old Act has been completely done away with by the new Act, held that the right of existing operators to file objections and the provisions to impose limit on the number of permits have been taken away. The statement of objects and reasons of the Act it would appear that the purpose of the Act was to liberalise the grant of permits.
12. In Binay Kumar's case (supra), this court, inter alia, observed :-
"The liberalisation policy for grant of permit as engrafted in the Act. although must be allowed to have full play, no further liberalisation is contemplated under the Rules. The said Rules have to be construed in the light of the provision of the said Act. It has to be borne in mind that the said Act does not envisage any order by way of grant of sanction order or issuance of Offer Letter. In this application, it is not necessary to advert to the question as to whether Rule 122 or Rule 141 of the said Rules are ultra vires the said Act; but there cannot be any doubt that the said Rules have to be interpreted keeping in view the provision of the said Act. Mithilesh Garg's case (supra) does not envisage that the concerned authority while considering an application for grant of Stage Carriage permit should invariably allow the same irrespective of the fact as to whether the petitioner is in a position to fulfil all the requirements of the law or not."
13. Upon taking into consideration various decisions it was held :-
"in this view of the matter and more so keeping in view the fact that in terms of the said Act there may not be any competition for grant of any permit which was under the old Scheme, the application cannot be dismissed summarily. It is also beyond any doubt that before refusing to grant such permit, an opportunity of hearing has to be granted and reasons should therefore are to be recorded. Thus except under such provisions expressly providing for summary rejection of a permit, no application for grant of permit can be summarily dismissed".
14. However, where under an agreement between two States, the number of permit is limited and element of competition exists, the said principle cannot have any application.
15. The petitioner in the instant case was not possessed of any vehicle. Although actual physical possession or ownership may not be necessary for the purpose of filing of an application grant of permit but the requisites for grant of a permit in terms of the advertisement must be fulfilled. It has been admitted that in terms of the agreement dated 23rd May 1988 the number of stage carriage permits to be granted was limited. In relation to the route in question only one permit was to be granted.
16. Both the petitioner and respondent No. 3 were contenders therefore and thus, there existed an element of competition. The petitioner admittedly produced a vehicle which was to be procured by her on the basis of a hire purchase agreement on 3.2.96 i.e. after the holding of the meeting of the S.T.A. which took place on 31.1.96. The petitioner, therefore, sought to produce certain documents after the hearing was over and behind the back of the respondent No. 3. If the respondent authority refused to take into consideration the said document, no illegality can be said to have been committed. The petitioner on her own showing was aspiring to have a permit in respect of the route in question pursuant to a notification dated 11.1.91. She should have, therefore, been prepared to keep her documents ready before hearing of the matter which took place on 31.1.96. As the petitioner could not produce proof as regard her financial stability and the fact that she would be in a position to place a vehicle in the event of grant of a permit at the time of hearing of the matter before the State Transport Authority, her case cannot be said to have been refused to be considered.
17. Binay Kumar Biswas's case (supra) in the fact of the matter cannot be said to have any application. In that case this court was concerned with the interpretation of Rule 122 and 141 of the Rules vis-a-vis filing of application in Form-I and IA. The court in that case also held :-
"A distinction thus has to be made in cases of application filed for grant of a particular Stage Carriage permit and for grant of service of Stage Carriage permit. While in the former case, an opportunity may be given in a given case to the applicant for production of his documents showing ownership of a vehicle, no such obligation is bestowed upon the authorities to grant such an opportunity in the later case. Even those who filed an application in Form-IA may be given an opportunity to produce the certificate of registration of vehicle registered in his name where he on the date of application was not the owner thereof, which clearly implies that although on the date of such application he was in possession thereof. It is now well known that the provisions of the Act, the Rules and the forms prescribed thereunder should be read harmoniously. If any other construction is made with regard to Rule 122. the requirement of clause 14 of Form-IA shall become otiose. I have come to the aforementioned findings as I am of the view that endevour should be made to give effect to Rule 122 and clause 14 of Form-IA."
18. Thus, although the person may not be in possession of a vehicle at the time of filing of application, she should be ready to show the documents by way of proof of his ability to place a vehicle upon grant of a permit at the time of hearing. There cannot be any doubt whatsoever that a statutory authority must act within the four corners of the statute. It may also be permissible that the State Transport Authority may grant split permit but the same lies within its domain and not within the domain of this Court. This Court as is well known cannot sit in appeal over the merit of the decision of a statutory authority but it can interfere only when an illegality, irrationality or procedural irregularity takes place in the process of decision making by the authority.
19. The question of judging the merit can only arise when, a party is in a position to place a better vehicle. Only possibility to place a vehicle of a later model is of no moment.
20. In any event, as the respondent No. 3 had been plying the said vehicle pursuant to the resolution dated 26.2.96. It is not a fit case in which this court should exercise its discretion in the matter at this stage.
For the reasons aforementioned there is no merit in this application which is accordingly dismissed but in the facts and circumstances of this case there will be no order as to costs.
21. Application dismissed