Calcutta High Court
Sanjit Chakraborty vs State Of West Bengal And Ors. on 12 June, 2007
Equivalent citations: AIR2007CAL252, AIR 2007 CALCUTTA 252, 2007 (6) ALJ (NOC) 1018 (CAL.) = AIR 2007 CALCUTTA 252, 2008 (1) AJHAR (NOC) 137 (CAL.) = AIR 2007 CALCUTTA 252, 2007 A I H C 3288, (2007) 3 CAL HN 859
Author: S.S. Nijjar
Bench: S.S. Nijjar
JUDGMENT S.S. Nijjar, C.J.
1. This Letters Patent Appeal has been filed against the judgment of the learned single Judge dated 24-12-2003 in Writ Petition No. 18082 (W) of 2003. The appellant is holder of a permanent stage carriage permit on the route Sonachandi Tea Estate of Siliguri-via-Kharibari, which was valid till 11th March, 2007. Respondent No. 2, State Transport Authority, West Bengal (hereinafter referred to as STA) had issued numerous permits covering two regions i.e. Jalpaiguri and Darjeeling. The petitioner challenged the issuance of such permits on the ground that the STA had no jurisdiction to issue such stage carriage permits on the routes (local services) covering the regions of Jalpaiguri and Darjeeling. The action of the State Transport Authority was stated to be in contravention to various provisions of the Motor Vehicles Act, 1988. Particular reference was made to Section 68(3)(b) and Section 69 of the Act. The petitioner objected to grant of such permits by making a representation on 1-11-2003. Since the objection raised by the petitioner had not been decided by State Transport Authority, the present writ petition was filed seeking a writ in the nature of mandamus directing the State Transport Authority to consider and dispose of the objections. After hearing the counsel for the parties the learned single Judge held that no legally enforceable right of the petitioner has been infringed. The learned single Judge also held that existing permit holder cannot dispute an illegal grant of permit to another. The only ground on which the grant of such permit could be challenged is that the permit has been granted without authority of law i.e. the permit granted by an authority having no jurisdiction. Hence, the present appeal by the petitioner/appellant.
2. The learned Counsel for the appellant submitted that the learned single Judge has wrongly held that the writ petitioner had no locus standi to challenge the grant of permit by the State Transport Authority. He further argued that the learned single Judge failed to appreciate the real impact and spirit of the judgment delivered by the learned single Judge of this Court in W.P. No. 15432(W) of 2001 (delivered by Ashim Kumar Banerjee, J. on 8-4-2002). The permit has been issued by State Transport Authority without having any jurisdiction to do so under Section 68(3)(b) of the Motor Vehicles Act, 1988. The permit having been issued by an authority without jurisdiction could be challenged by the petitioner/appellant even though he was an existing permit holder. The words "if it thinks fit" have been interpreted by a judgment of the Division Bench of the Orissa High Court in the case of Dayalal N. Joshi v. State Transport Authority, Orissa, Cuttack, . Considering the provisions of Section 44(3) of the old Motor Vehicles Act, which pari materia in Section 68(3) of the present Act, it was held that unless material is placed before the Court to show that State Transport Authority decided to assume the jurisdiction over the route in question, such exercise should be deemed to be illegal exercise of jurisdiction. In the present case there was no request from the two Regional Transport Authorities functioning in the two districts of Siliguri and Darjeeling requesting the State Transport Authority to exercise jurisdiction on the route covering two districts. There was also no dispute between the two Regional Transport Authorities. Therefore, the State Transport Authority could not have assumed jurisdiction. The learned single Judge has, therefore, wrongly come to the conclusion that the State Transport Authority had the jurisdiction to issue permit covering two or more regions lying within the State. Apart from the aforesaid two judgments the learned Counsel also relied on the judgment of the Supreme Court in the case of Kanchan v. State Transport Appellate Tribunal, .
3. We have considered the submission made by the learned Counsel for the appellant. We have also perused the judgment of the learned single Judge which clearly shows that each and every submission made by the learned Counsel has been considered. Therefore, it would not be possible to hold that any of the judgments cited by the counsel for the petitioner/appellant have not been duly considered. In the judgment of the Supreme Court in the case of Mithilesh Garg v. Union of India, , it has been clearly held that an existing permit holder cannot challenge the grant of permit to other operators, on the same route, even it had been granted illegally. In view of these observations it would have to be held that the petitioner/appellant had no locus standi to file the present petition. Undoubtedly, the petitioner is an existing permit holder. No legally enforceable right of the petitioner having been infringed the writ petition was clearly not maintainable. In our opinion, the learned single Judge has correctly noted the law laid down by the Supreme Court in the cases of (1) State of Punjab v. Suraj Prakash , (2) Calcutta Gas Co. v. State of West Bengal . The existence of legally enforceable right and infringement thereof is the sine qua non for seeking relief in proceedings under Article 226 of the Constitution of India.
4. A perusal of the judgment of the Orissa High Court in Joshi case (supra) would show that it has been held that simultaneously exercise of jurisdiction by the State Transport Authority, which also vests in the Regional Transport Authority, without any resolution to that effect would not be permissible. It has also been held that there must be material-on-record to show that the State Transport Authority had decided to assume jurisdiction over the route in question in terms of Section 44(3)(d) of Act. In our opinion, the learned single Judge has rightly differed with the aforesaid view and held that the State Transport Authority, would have the power and jurisdiction to perform the duties of the Regional Transport Authority in respect of any route common to two or more regions. This view of the learned single Judge is in consonance with the provision contained in Section 68(3)(b). This Section provides as under:
68(3)(b) to perform the duties of a Regional Transport Authority where there is no such Authority and, if it thinks fit or if so required, by a Regional Transport Authority, to perform those duties in respect of any route common to two or more regions.
5. A perusal of the aforesaid Sub-section (3)(b) leaves no manner of doubt that the State Transport Authority has the jurisdiction to perform the duties of a Regional Transport Authority "if it thinks fit" or if so required by a Regional Transport Authority. The plain meaning of the aforesaid Sub-section appears to be that the State Transport Authority can perform the duties of the Regional Transport Authority:
(1) where there is no such authority.
(2) if it thinks fit to perform.
(3) if so required by a Regional Transport Authority.
6. The term "if it thinks fit" cannot be further circumscribed that there must be a request from the Regional Transport Authority before the State Transport Authority to exercise the power of Regional Transport Authority: It also cannot be limited to cases where there is no Regional Transport Authority. This view of ours will find support from the judgment of the Supreme Court in the State of Rajasthan v. Shri Noor Mohammad . In this case the Supreme Court examined the scope of Sub-sections (3) and (4) of the Motor Vehicles Act, 1939 and clearly held as follows:
7. It is clear from the above provisions that the State Transport Authority is a superior Authority with jurisdiction over the whole of the State while the Regional Transport Authority is subordinate to it with its jurisdiction generally confined to the region for which it is appointed. It is also clear from Sub-section (3) Clause (b) that the State Transport Authority can perform the duties and functions of the Regional Transport Authority under certain circumstances.
In our opinion, the view which found favour with the learned Judges with regard to the construction of Clause (b) is erroneous, and the State Transport Authority is entitled to perform the duties of the Regional Transport Authority (i) where there is no such authority; (ii) when the State Transport Authority thinks it fit to perform the duties of the Regional Transport Authority In respect of any route common to two or more regions or (iii) where the State Transport Authority is required by the Regional Transport Authority to perform those duties in respect of any route common to two or more regions.
7. It is undoubtedly expected that such authority would be exercised by the State Transport Authority in a reasonable manner, as such exercise would clearly be amenable to judicial review. In the aforesaid judgment the Supreme Court while interpreting Sub-sections (2) and (4) of Section 44 of the old Act as follows:
It is clear from the above provisions that the State Transport Authority is a superior authority with jurisdiction over the whole of the State while the Regional Transport Authorities is subordinate to it with its jurisdiction generally confined to the region for which it is appointed. It is also clear from Sub-section (3) Clause (b) that the State Transport Authority can perform the duties and functions of the Regional Transport Authority under certain circumstances.
8. Similar observations have been made by a Division Bench of the Madhya Pradesh High Court in the case of Sher Singh v. State Transport Authority, Gwalior, held as follows:
We now revert to Sub-sections (3) and (4) of Section 44 which we have reproduced earlier. It is first argued by the learned Counsel for the respondent that these Sub-sections cannot be utilised for depriving a Regional Transport Authority of its jurisdiction to grant permits. Such a broad statement is plainly wrong. A look at Sub-section (3)(b) will show that in ease of a route which is common to two or more regions, the State Transport Authority may, if it thinks fit or if so required by a Regional Transport Authority, perform the duties of a Regional Transport Authority. If the State Transport Authority decides to perform the duties of a Regional Transport Authority for an interregional route it can certainly issue directions under Sub-section (4) to the Regional Transport Authorities concerned not to exercise that duty. Otherwise the object of taking over the duties of the Regional Transport Authorities by the State Transport Authority will not be served, Sub-sections (3)(b) and (4) therefore clearly authorise the State Transport Authority to perform the function of granting permits on an inter-regional route and to deprive the Regional Transport Authority of their jurisdiction to that extent.
9. Similar view has been expressed by a learned single Judge of this Court in the case of Bidhan Hatua v. State of West Bengal reported in 1996 (1) CLJ 30.
10. In view of the aforesaid, we are of the opinion that the State Transport Authority had the jurisdiction to grant permits which have been challenged in this writ petition even in the presence of the two Regional Transport Authorities functioning in the districts of Siliguri and Darjeeling. We have also perused the judgment of the learned single Judge in the case of W.P. No. 15432 (V) of 2001. Even in this judgment the learned single Judge noticed the judgment of the Supreme Court in the case of Noor Mohammad (supra) and held that:
that since the State Transport Authority had right to issue permit in respect of any inter regional route if they thought it fit and proper, there was no illegality perpetrated in issuance of the special permits.
11. The learned single Judge thereafter observed on the examination of the facts of thac particular case there had been irregularity on the part of the State Transport Authority in issuing the permits. It was also observed that the action of the State Transport Commissioner lacked transparency. However, even then the permits that had been granted were not nullified on the ground that it would cause undue hardship to the permit holder. In our opinion, this Judgment is clearly of no assistance to the appellant. The observations of the Supreme Court in the case of Noor Mohammad (supra) leaves no manner of doubt that the State Transport Authority is at liberty to exercise the powers of Regional Transport Authority "if it thinks fit" to do so in the peculiar circumstances of a particular case.
12. Learned Counsel for the appellant had also relied on a judgment of the Supreme Court in the case of Kanchan v. State Transport Appellate Tribunal (supra). In this judgment the Supreme Court undoubtedly noticed the arguments of the counsel for the appellant and the respondents in paragraphs 2 and 3 of the judgment. But the permits granted by the State Transport Authority were quashed on the ground of mala fide exercise of power by the State Transport Authority in that case. The permits had been granted even without receiving applications. Since the appeal was dismissed only on the ground of proven mala fide exercise of power, the Supreme Court did not think it necessary to go into the other questions. This judgment, therefore, would have no application in the present appeal. We are of the considered opinion that the judgment of the learned single Judge does not call for any interference. The appeal is, therefore, dismissed. No order as to costs.
13. Urgent xerox certified copy of this order, if applied for, be given to the appearing parties on priority basis.
Debi Prasad Sengupta, J.
14. I agree.