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Smart Summary

Judgment Summary — Bhaskar Bhattacharya, J.

Factual and Procedural Background

The writ petitioner is an existing stage carriage permit holder who applied for a direction to the Secretary, Transport Department and the Secretary, State Transport Authority to dispose of the petitioner’s objection to the issue of Stage Carriage Permits by the State Transport Authority for routes covering areas within the regions of Jalpaiguri and Darjeeling. The petitioner challenged the issuance of those permits and sought administrative action on his representation. The State/respondent raised a preliminary objection to the maintainability of the writ petition on the ground that the petitioner lacks locus standi as an existing permit holder, relying on the Supreme Court decision in Mithilesh Garg v. Union of India (AIR 1992 SC 443).

Legal Issues Presented

  1. Whether an existing permit holder has locus standi to challenge the grant of stage carriage permits to other operators in the same route before a writ court under Article 226 of the Constitution of India, in light of the Supreme Court decision in Mithilesh Garg.
  2. Whether a permit granted by the State Transport Authority for routes covering two or more regions is without jurisdiction if the State Transport Authority has not taken a prior specific resolution to assume jurisdiction (i.e., whether such grants are nullities or only irregularities).
  3. What legal test determines when an existing permit holder may challenge a permit: irregularity in grant versus grant by an authority lacking jurisdiction (nullity).

Arguments of the Parties

Respondent's Arguments (State)

  • The respondent relied on a preliminary objection that the writ petition is not maintainable because the petitioner, as an existing permit holder, lacks locus standi to dispute the grant of permits to others in the same route, invoking the Supreme Court decision in Mithilesh Garg (AIR 1992 SC 443).
  • The broad contention was that an existing permit holder cannot challenge grants to other permit holders in the same route even if the grant is allegedly in contravention of provisions of the Motor Vehicles Act.

Petitioner's Arguments

  • The petitioner (through Mr. Samanta) argued that an existing permit holder does have a right to oppose the grant of illegal permits in the same route and that Mithilesh Garg does not preclude challenges where the grant was made by an authority lacking jurisdiction.
  • It was contended that only the Regional Transport Authorities for Darjeeling and Jalpaiguri could grant such permits for the concerned route and that the State Transport Authority could not validly grant them unless it had taken a prior specific resolution to assume jurisdiction; no such prior decision was alleged to have been taken.
  • The petitioner relied on authorities (including Dayalal N. Joshi and decisions of this Court) and administrative law texts to support the proposition that a person with sufficient interest may maintain a writ.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mithilesh Garg v. Union of India, AIR 1992 SC 443 Held that an existing permit holder cannot dispute grant of permit to others in the self-same route (limitation on locus standi of existing permit holders). The court applied this decision to hold generally that an existing permit holder cannot challenge illegal grants to others in the same route; the decision formed the principal basis for dismissing the writ application on maintainability grounds, subject to a narrowly recognized exception.
State of Rajasthan v. Noor Mohammad, AIR 1973 SC 2729 Authority for the proposition that there is no illegality in the issue of a permit by the State Transport Authority when it performs functions in respect of routes common to two or more regions (in reference to s.68(3)(b)). The court relied on this case to conclude that if the State Transport Authority decides to grant a permit covering two regions, such action cannot be called an exercise without jurisdiction.
Dayalal N. Joshi v. State Transport Authority, AIR 1973 Orissa 39 (Orissa High Court) The Division Bench held interpreting the old section (pari materia with s.68(3)) that unless material shows the State Transport Authority had decided to assume jurisdiction, its exercise of jurisdiction without prior decision should be deemed illegal. The court considered this authority but declined to accept its conclusion that absence of a prior decision renders such grants nullities; the court did not follow the Orissa Division Bench view.
Bidhan Hatua v. State of West Bengal & Ors., 1996 (1) CLJ 30 Shows exercise of power by the State Transport Authority for consideration of such matters had been approved by this Court. The court cited this decision as showing approval of STA exercising such powers but did not rely on it to accept the Dayalal N. Joshi approach. It illustrated that STA's power to consider such matters has been recognised.
Dhananjay Sharma v. State of West Bengal, W.P. No. 15432(W) of 2001 (Single Judge, disposed April 8, 2002) The Single Judge ultimately held that the State Transport Authority had the right to issue the permit in question, though there were irregularities by the STA in issuing those permits. The court reviewed this decision and concluded it cannot be relied upon as authority that an existing permit holder may challenge irregular grants, because in that case the court refrained from interfering despite finding irregularities.
State of Punjab v. Suraj Prakash, AIR 1963 SC 507 Supports the principle that the existence of a right and its infringement are foundational for the exercise of jurisdiction under Article 226. The court used this and related Supreme Court decisions to state the settled principle that a writ under Article 226 ordinarily must be prosecuted by a person whose right has been affected.
State of Orissa v. Ram Chandra, AIR 1964 SC 516 Same principle regarding the foundation of Article 226 jurisdiction: existence of a right and its infringement. Applied as part of the doctrinal foundation that only persons whose rights are affected can ordinarily invoke Article 226, supporting dismissal here where the petitioner’s permit-right was not affected.
Calcutta Gas Co. v. State of West Bengal, AIR 1962 SC 1044 Forms part of the line of Supreme Court authority on what rights are enforceable under Article 226 and who may invoke it. Used together with the other Supreme Court cases to explain that rights enforced under Article 226 must ordinarily be the petitioner’s own rights, barring certain public-interest writs.

Court's Reasoning and Analysis

The court first considered the preliminary objection based on Mithilesh Garg and initially accepted the broad proposition from that Supreme Court authority that an existing permit holder cannot dispute the grant of permits to others in the same route in a writ petition under Article 226. The court nonetheless identified and accepted a limited exception: if the permit in question was granted by an authority that had no legal sanction to grant it (i.e., an authority lacking jurisdiction), such a grant is a nullity and can be challenged by an existing permit holder.

The judge then analyzed the statutory provision relied upon by the parties: section 68(3)(b) of the Motor Vehicles Act (the opinion quotes this provision). The court interpreted s.68(3)(b) to mean that the State Transport Authority, if it thinks fit, may perform the duties of a Regional Transport Authority for a route common to two or more regions. On that basis, the court concluded that when the State Transport Authority decides to grant a permit covering two regions, such grant is not, by that fact alone, without jurisdiction.

The court examined authorities relied on by the petitioner: it noted the Division Bench of the Orissa High Court in Dayalal N. Joshi had taken the view that absent material showing a prior decision by the State Transport Authority to assume jurisdiction, any exercise of jurisdiction would be illegal. The court explicitly declined to accept that reasoning and did not hold that absence of a prior decision converts every such permit into a nullity.

The opinion reviewed a Single Judge decision (Dhananjay Sharma) on which the petitioner relied and observed that although the Single Judge found irregularities, the court nonetheless chose not to interfere. The present Court therefore held that such a decision does not support the proposition that an existing permit holder may challenge irregular grants.

The judge also considered submissions from administrative law texts (de Smith; Wade & Forsyth) about sufficient interest and a person “aggrieved.” While accepting the general proposition that a person with sufficient interest may maintain a writ, the Court applied the line of Supreme Court authorities (State of Punjab v. Suraj Prakash; State of Orissa v. Ram Chandra; Calcutta Gas Co. v. State of West Bengal) to emphasize that Article 226 ordinarily requires that the petitioner's own right be affected. The court found the petitioner's right to run his vehicle under his permit remained unaffected by the grants in question, so he lacked the requisite standing to challenge permits issued by a competent authority.

Synthesizing these points, the court distinguished between:

  • Permits that are merely illegally or irregularly granted (which are not automatically nullities and generally cannot be attacked by an existing permit holder under Article 226 after Mithilesh Garg); and
  • Permits granted by an authority that inherently lacks jurisdiction (which are nullities, equivalent to “no grant,” and can be challenged by an existing permit holder because such a grant creates vehicles plying “with no permit”).

On the materials before it, and having found no ground to treat the challenged permits as grants by a wholly unauthorized authority, the court concluded that the writ was not maintainable by the petitioner.

Holding and Implications

Holding: The writ application is DISMISSED on the ground that the petitioner, an existing permit holder, does not have locus standi to challenge the grant of permits to others in the same route where those permits were granted by a competent authority.

Implications:

  • Direct effect: The petitioner’s writ seeking direction to the Secretaries to dispose of his objection is dismissed; there will be no order as to costs.
  • Scope of challenge by existing permit holders clarified by the Court: an existing permit holder may challenge a permit only where it was granted by an authority that lacked legal jurisdiction (such a grant is treated as a nullity). By contrast, mere irregularity in grant does not afford standing to an existing permit holder to maintain a writ under Article 226 (post-Mithilesh Garg).
  • The court explicitly rejected the view that absence of a prior decision by the State Transport Authority automatically renders its grants nullities (thus declining to follow the Dayalal N. Joshi Division Bench conclusion on that point).
  • No broader change in precedent was announced by this opinion; the judgment applies existing Supreme Court principles to the facts and dismisses the petition on maintainability grounds.
Writ application dismissed.

Order: Writ application dismissed; no order as to costs.

Show full summary ...

    Sanjit Chakraborty v. State Of West Bengal & Ors.

    Bhaskar Bhattacharya, J.:— By this writ application, the writ petitioner, an existing permit holder, has prayed for direction upon the Secretary, Transport Department and the Secretary, State Transport Authority to dispose of the objection raised by the petitioner against issue of Stage Carriage Permits in the routes covering the area within the regions of Jalpaiguri and Darjeeling by the State Transport Authority.

    2. Mr. De, the learned Counsel appearing on behalf of the State/respondent, has raised a preliminary objection as regards maintainability of the instant writ application on the ground of absence of locus standi of the petitioner, an existing permit holder, in view of the decision of the Supreme Court in the case of Mithilesh Garg v. Union of India reported in AIR 1992 SC 443. According to Mr. De, the petitioner, an existing permit holder, cannot dispute the grant of permit to other permit holder in the route even if the same is in contravention of the provisions contained in Motor Vehicles Act.

    3. Mr. Samanta, the learned Counsel appearing on behalf of the petitioner, has opposed the aforesaid contention of Mr. De and has contended that the petitioner being an existing permit holder has right to oppose grant of illegal permit in the route. Mr. Samanta contends that the decision of the Supreme Court in the case of Mithilesh Garg (supra) cannot stand in the way of the petitioner in challenging permit granted by an authority having no jurisdiction. Mr. Samanta contends that in the concerned route only the Regional Transport Authorities, Darjeeling and Jalpaiguri, can grant such permit but State Transport Authority cannot grant any such permit unless a prior specific resolution is taken by the State Transport Authority to grant such permit notwithstanding existence of Regional Transport Authorities over the area in question According to Mr. Samanta no such prior decision has been taken. Mr. Samanta, thus, submits that if the grant of permit by State Transport Authority is without jurisdiction, his client has a right to question such grant and for that reason his client made representation before the authority pointing out its want of authority.

    4. After hearing the learned Counsel for the parties and after going through the materials on record, I am of the opinion that in view of the decision of the Supreme Court in the case of Mithilesh Garg (supra) an existing permit holder cannot dispute illegal grant of permit in the self-same route to others in violation of the provision of the Act. I am, however, prepared to accept the contention of Mr. Samanta that an existing permit holder can challenge the grant of permit to others if such grant is made by an authority having no legal sanction. In such a case, such grant is to be treated as nullity and plying of vehicle on the basis of such a grant will amount to “running of vehicle with no permit”. An existing permit holder who has obtained permit from a competent authority can legitimately complain before the authority that no person having obtained permit given by a competent authority can ply in the route.

    5. Therefore, the locus standi of the present petitioner to dispute illegal grant of permit in favour of third parties is limited to this extent that where such permits are granted by an authority having no jurisdiction, he can challenge such illegal permit. But there is a difference between illegal grant of permit and a permit by an authority having inherent lack of jurisdiction. In cases of the former nature, those are merely irregular but not a nullity whereas the descriptions of the second type are nullity.

    6. According to the provisions contained in section 68(3)(b) of Motor Vehicles Act, State Transport Authority, if it thinks fit, can perform the duties of the Regional Transport Authority in respect in any route common to two or more regions and, thus, for the purpose of grant of a permit covering two regions, although, Regional Transport Authority having jurisdiction over the area over which the maximum portion of the route falls, can grant such permit, the State Transport Authority is not divested of its right to grant permit, in such a case, if it thinks fit. Therefore, if in a given case, the State Transport Authority decides to grant permit covering two regions notwithstanding existence of Regional Transport Authority in those two regions, the same cannot by any stretch of imagination be called to be without jurisdiction. As pointed out by the Supreme Court in the case of State of Rajasthan v. Noor Mohammad reported in AIR 1973 SC 2729 there is no illegality in issue of such permit by State Transport Authority.

    7. Mr. Samanta, in this connection, has placed strong reliance upon the decision of Orissa High Court in the case of Dayalal N. Joshi v. State Transport Authority, Orissa, Cuttack reported in AIR 1973 Orissa 39 where the Division Bench of that Court while interpreting section 44(3) of the Old Motor Vehicles Act, which pari materia with section 68(3) of the present Act, held that unless material is placed before Court to show that State Transport Authority decided to assume jurisdiction over the route in question, exercise of such jurisdiction without prior decision should be deemed to be illegal exercise of jurisdiction.

    8. In this connection, reference may be made to the decision of this Court in the case of Bidhan Hatua… v. State Of West Bengal & Ors.…Opposite Parties. reported in 1996 (1) CLJ 30 where exercise of power by State Transport Authority for consideration of such matter has been approved. Be that as it may, I could not convince myself to accept the finding of the Division Bench of Orissa High Court in Dayalal N. Joshi (supra) that in the absence of any prior decision taken by State Transport Authority if permit is granted by such authority for use of vehicle in two or more regions lying within the State, the same will become a nullity.

    9. Mr. Samanta, in this connection, has also relied upon a decision of a learned Single Judge of this Court in the case of Dhananjay Sharma v. State of West Bengal, W.P No. 15432(W) of 2001 disposed of in April 8, 2002 in support of his contention that the writ application is maintainable at the instance of an existing permit holder.

    10. After going through the said decision, I find that the learned Single Judge ultimately held that the State Transport Authority had the right to issue permit in question but in that case there were irregularities on the part of the State Transport Authority in issuing those permits. However, notwithstanding such findings, His Lordship decided not to interfere with the permits granted in favour of others. A decision, where the Court after recording finding as regards irregular grants of permit does not interfere with such grants cannot be relied upon as a precedent in support of the proposition of law that in case of irregular grant of permits in favour of others, an existing permit holder can dispute such grant.

    11. Mr. Samanta has placed strong reliance upon de Smith's Judicial Review of Administrative Action, Fourth Edition (J.M Evans) and Administrative Law, Eight Edition by H.W.R Wade and C.F Forsyth in support of his contention that a writ application is maintainable at the instance of a person having sufficient interest in the matter to which the application relates. According to him, a person aggrieved has been understood to mean one “who has a genuine grievance because an order has been made which prejudically affects his interest”. I am not disputing for a moment the aforesaid proposition of law. But the question is whether an existing permit holder is prejudically affected by increase in number of the competitors in the field by such illegal grant. In my opinion, as pointed out earlier, if the illegality complained of is of such nature that there is inherent lack of jurisdiction in the matter of grant, then such grant is to be treated as “no grant” and can be impugned by the existing permit holders for annulling the grant. Apart from that, a third party whose application for permit has been rejected can also dispute the legality of the grant on the ground that being similarly circumstanced his prayer was rejected but the authority has granted the prayer of others thereby denying the protection of Article 14. Apart from the aforesaid two circumstances, there is no scope of challenging the illegal grant of permit in violation of the provisions of the Motor Vehicles Act, 1988 in a writ application under Article 226 of the Constitution of India after the decision of the Apex Court in Mithilesh Garg (supra).

    12. As held by Supreme Court in the cases (1) State of Punjab v. Suraj Prakash, AIR 1963 SC 507 (2) State of Orissa v. Ram Chandra, AIR 1964 SC 516 (3) Calcutta Gas Co. v. State of West Bengal, AIR 1962 SC 1044 the existence of a right and infringement thereof are the foundation of the exercise of jurisdiction under Article 226 of the Constitution of India. Such right, the Supreme Court proceeded, may be a fundamental right or an ordinary legal right. The rights that can be enforced under Article 226 of the Constitution of India, must ordinarily be the right of the petitioners except in the cases of hebeas corpus, quo warranto or writ involving public interest. Thus, an illegal order can be set aside in the writ application only at the instance of a person whose right has been affected by illegal order.

    13. Since in the instant case, petitioner's right to run vehicle by grant of permit in his favour has not been affected in any way, he cannot dispute the legality of permits of others if granted by a competent authority. I have already indicated that the position would have been different, if such grant was made by an authority not vested with jurisdiction and, in such a case, the petitioner could legitimately complain before the authority which granted his permit to take action against persons who were interfering with the business of the petitioner on the basis of “no permit” in the eye of law.

    14. On consideration of the entire materials on record, I, thus, find that this writ application is not maintainable at the instance of the petitioner, an existing permit holder.

    15. The writ application is, thus, dismissed on that ground alone.

    16. In the facts and circumstances, there will be, however, no order as to costs.

    Writ application dismissed.
    A.D

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    Comments

    Sanjit Chakraborty v. State Of West Bengal & Ors.
    (Dec 24, 2003)