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Case Number

F.M.A No. 769 of 2004*

Attorney(S)

Dilip Kumar Samanta and Mrs. Mala Dutta
Dilip De

Judges

S.S Nijjar, C.J
Debi Prasad Sengupta, J.

Acts

provisions of Section 44(3) of the old Motor Vehicles Act,
sub-sections (3) and (4) of the Motor Vehicles Act, 1939
sub-sections (2) and (4) of Section 44 of the old Act
Section 68(3)(b) of the Motor Vehicles Act, 1988.
ARTICLE 226 CONSTITUTION OF INDIA
MOTOR VEHICLES ACT 1988
Section 68(3)(b). This Section
sub-section (3) clause (b)
Section 44(3)(d) of Act.
sub-section (3)(b)

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Smart Summary

Structured Summary of the Opinion (Letters Patent Appeal)

Factual and Procedural Background

This Letters Patent Appeal challenges the single Judge's judgment dated 24-12-2003 in Writ Petition No. 18082(W) of 2003. The appellant is the holder of a permanent stage carriage permit for the route "Sonachandi Tea Estate of Siliguri-via-Kharibari" valid until 11 March 2007. Respondent No. 2, the State Transport Authority (STA), had issued numerous permits covering two regions—Jalpaiguri and Darjeeling. The petitioner challenged those permits on the ground that the STA lacked jurisdiction to issue stage carriage permits for routes covering the two regions and that the action contravened provisions of the Motor Vehicles Act, 1988 (notably Section 68(3)(b) and Section 69). The petitioner first made a representation dated 1-11-2003; when that objection was not decided by the STA, the petitioner filed a writ petition seeking a mandamus directing the STA to consider and dispose of the objections. The single Judge held that the petitioner had no legally enforceable right infringed and that an existing permit-holder could not challenge the grant of permits to others except where a permit was granted by an authority without jurisdiction. The present appeal followed from that ruling.

Legal Issues Presented

Whether the State Transport Authority had jurisdiction under Section 68(3)(b) of the Motor Vehicles Act, 1988 to grant stage carriage permits covering a route common to two or more regions (specifically, routes covering Jalpaiguri and Darjeeling).
Whether an existing permit-holder (the appellant) has locus standi to challenge the grant of permits to other operators on the same or inter-regional route, including where the grants are alleged to be illegal.

Arguments of the Parties

Appellant's Arguments

The single Judge erred in holding that the writ petitioner lacked locus standi to challenge the grant of permits by the STA.
The STA issued permits without jurisdiction under Section 68(3)(b) of the Motor Vehicles Act, 1988; a permit issued by an authority without jurisdiction could be challenged even by an existing permit-holder.
Reliance was placed on a Division Bench judgment of the Orissa High Court in Dayalal N. Joshi v. State Transport Authority (AIR 1973 Orissa 39), interpreting the old Section 44(3) (pari materia to Section 68(3)) to the effect that, unless material shows that the STA decided to assume jurisdiction, such an exercise would be illegal.
The appellant submitted there was no request from the two Regional Transport Authorities (for Siliguri and Darjeeling) to the STA to assume jurisdiction over the inter-regional route, and there was no dispute between those RTAs; therefore, the STA could not have assumed jurisdiction.
The appellant also relied on the Supreme Court's decision in Kanchan v. State Transport Appellate Tribunal (AIR 2006 SC 3444 / 2006 (2) CLJ 153).

The opinion does not contain a detailed account of the respondents' counter-arguments in granular form; the court's summary focuses on the appellant's contentions and the authorities considered.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dayalal N. Joshi v. State Transport Authority, Orissa (AIR 1973 Orissa 39)	Interpreted old Section 44(3) (pari materia to Section 68(3)) to hold that, unless material shows the STA decided to assume jurisdiction over the route, such an exercise is an illegal exercise of jurisdiction.	The Court reviewed this decision but expressly disagreed with its restrictive construction; the single Judge's differing view (that STA may assume jurisdiction "if it thinks fit") was held to be correct in the present case.
Kanchan v. State Transport Appellate Tribunal (AIR 2006 SC 3444; 2006 (2) CLJ 153)	Permits were quashed on the ground of mala fide exercise of power by the STA; in that case permits were granted even without receiving applications.	The Court distinguished Kanchan as fact-specific: since the quashing in Kanchan rested on proven mala fides (and grants made without applications), that decision was not applicable to the present appeal.
Mithilesh Garg v. Union of India (AIR 1992 SC 443)	Holds that an existing permit-holder cannot challenge the grant of a permit to other operators on the same route even if the grant was illegal.	The Court relied on this authority to conclude that the appellant (an existing permit-holder) had no locus standi and that no legally enforceable right of the petitioner had been infringed.
State of Punjab v. Suraj Prakash (AIR 1963 SC 507)	Principles cited for the requirement that a legally enforceable right and its infringement must exist to seek relief under Article 226.	The Court cited this case in support of the proposition that existence of a legally enforceable right and its infringement are sine qua non for writ relief; it contributed to the conclusion on maintainability.
Calcutta Gas Company v. State of West Bengal (AIR 1962 SC 1044)	Principles regarding the necessity of a legally enforceable right to invoke constitutional writ jurisdiction.	The Court relied on this authority along with Suraj Prakash to underscore the requirement of a legally enforceable right for Article 226 remedy.
State of Rajasthan v. Shri Noor Mohammad (AIR 1973 SC 2729)	Interpreted sub-sections (3) and (4) of the earlier Motor Vehicles Act to hold that the STA (a superior authority) may perform the duties of Regional Transport Authority (i) where no such authority exists, (ii) when STA thinks fit for inter-regional routes, or (iii) if required by an RTA.	The Court relied on Noor Mohammad to support the plain meaning of Section 68(3)(b) and to hold that "if it thinks fit" permits the STA to assume jurisdiction over inter-regional routes without a prior request from an RTA.
Sher Singh v. State Transport Authority, Gwalior (AIR 1969 MP 92)	Held that sub-sections (3) and (4) authorize STA to perform functions (including grant of permits) on inter-regional routes and to give directions depriving RTAs of jurisdiction to that extent.	The Court cited this decision as consistent with the view that the STA can perform RTA functions for inter-regional routes and can issue directions to RTAs; it supported the conclusion that STA had jurisdiction in the present facts.
Bidhan Hatua v. State of West Bengal & Ors. (1996 (1) CLJ 30)	Expresses a view similar to Noor Mohammad and Sher Singh on STA's power to assume RTA functions in inter-regional contexts.	The Court cited this single-Judge decision of the Calcutta High Court as another authority that adopted a similar construction of the statutory provision, supporting the STA's jurisdiction.
W.P. No. 15432(W) of 2001 (Ashim Kumar Banerjee, J.)	The single Judge in that writ noticed Noor Mohammad and observed that STA had the right to issue permits in respect of inter-regional routes if it thought fit; that case also recorded irregularity and lack of transparency by the STA, but permits were not nullified due to hardship to permit-holders.	The Court considered this prior judgment of the same High Court but found it of no assistance to the appellant in the present appeal; the present Court relied on Noor Mohammad and related authorities instead.

Court's Reasoning and Analysis

The Court first recorded that the single Judge had considered every submission advanced by the appellant and therefore there was no basis to say any relied-upon authority was overlooked. The Court examined two linked strands of law: (1) the appellant's locus standi as an existing permit-holder to challenge the grant of permits to others; and (2) the statutory scope of Section 68(3)(b) of the Motor Vehicles Act, 1988 (the provision governing the STA's power to perform duties of a Regional Transport Authority).

On the question of locus standi, the Court relied on Mithilesh Garg v. Union of India (AIR 1992 SC 443) to hold that an existing permit-holder cannot maintain a challenge to the grant of permits to other operators on the same route even if those grants were illegal. Applying this principle, the Court concluded the appellant had no legally enforceable right infringed and therefore the writ petition was not maintainable under Article 226.

Turning to statutory construction, the Court examined the text of Section 68(3)(b) (quoted in the judgment):

“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.”

The Court parsed the subsection into three operative circumstances in which the STA may perform RTA duties: (1) where there is no RTA; (2) where the STA "thinks fit" to perform such duties; and (3) where the STA is "required" by an RTA to perform such duties. The Court interpreted the phrase "if it thinks fit" in plain terms and rejected a restrictive construction (advanced by the appellant via the Joshi decision) that would require a prior request from the Regional Transport Authorities or limit the provision only to situations where no RTA exists.

The Court found support for this interpretation in the Supreme Court's decision in State of Rajasthan v. Shri Noor Mohammad (AIR 1973 SC 2729), which had construed analogous provisions in the earlier Act to permit the STA to assume RTA functions in the enumerated circumstances, including when the STA itself thinks fit to do so for inter-regional routes. The Court emphasised that such powers must be exercised reasonably and remain amenable to judicial review.

The Court reviewed other supporting authorities—Sher Singh (MP High Court), Bidhan Hatua (Calcutta High Court), and the single Judge decision in W.P. No. 15432(W) of 2001—but distinguished or rejected the appellant's reliance on Dayalal N. Joshi to the extent that Joshi imposed a requirement of material showing a decision by the STA to assume jurisdiction. The Court also analysed Kanchan (AIR 2006 SC 3444) and held that it was distinguishable because Kanchan involved proven mala fide exercise of power and grants made without receiving applications; accordingly, Kanchan's quashing of permits on mala fides did not assist the appellant on the broader jurisdictional point.

Weighing these authorities and constructions, the Court concluded that the STA did have jurisdiction under Section 68(3)(b) to grant permits in respect of the inter-regional routes at issue—even though Regional Transport Authorities were functioning in the relevant districts—and that the single Judge's conclusions did not warrant interference.

Holding and Implications

Holding: APPEAL DISMISSED.

Direct consequences for the parties:

The single Judge's judgment dated 24-12-2003 is affirmed and the appellant's challenge to the permits (on the grounds advanced) is rejected.
The Court held that the State Transport Authority had jurisdiction under Section 68(3)(b) to grant the permits in question covering routes common to two or more regions.
The appellant, as an existing permit-holder, was held to lack locus standi to challenge the grant of those permits in the absence of a legally enforceable right shown to have been infringed.
No costs were awarded ("No order as to costs").
The Court directed that urgent xerox certified copies of the order be provided to appearing parties on priority application.

Broader implications:

The Court applied and reconciled existing precedent to interpret Section 68(3)(b). The opinion does not state that it was creating a novel precedent beyond applying the cited authorities; its primary effect is to affirm that, consistent with the line of authorities it relied upon, the STA can perform RTA duties for inter-regional routes "if it thinks fit" and that such exercises remain subject to judicial review for reasonableness or mala fide conduct.

Disposition: Appeal dismissed. Urgent copies to be supplied on request. D.P. Sengupta, J. concurred.

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Sanjit Chakraborty v. State Of West Bengal & Ors.

S.S Nijjar, C.J:— 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, reported in AIR 1973 Orissa 39. 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, reported in 2006 (2) CLJ 153 : (AIR 2006 SC 3444).

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, reported in AIR 1992 SC 443, 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, AIR 1963 SC 507, (2) Calcutta Gas Company v. State of West Bengal, AIR 1962 SC 1044. 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 (AIR 1973 Orissa 39) (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:

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 reported in AIR 1973 SC 2729. 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 reasonably 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 Authorily 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, reported in AIR 1969 MP 92 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 case 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 & Ors.…Opposite Parties., 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(W) of 2001. Even in this judgment the learned single Judge noticed the judgment of the Supreme Court in the case of Noor Mohammad (AIR 1973 SC 2729) (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 that 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 (AIR 2006 SC 3444) (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.

D.P Sengupta, J.:— 14. I agree.

Appeal dismissed.

Sanjit Chakraborty v. State Of West Bengal & Ors.

Structured Summary of the Opinion (Letters Patent Appeal)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sanjit Chakraborty v. State Of West Bengal & Ors.

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