Citation Codes

Equivalent Citations

citation codes

Case Number

A.P.O No. 232 of 2007; A.P.O.T No. 302 of 2007; G.A No. 619 of 2007; W.P No. 1395 of 2006

Attorney(S)

Alok Ghosh
Malay Bose
Arabinda Chatterji
Ashoke De
Dipak Das
Sanat Kr.Roy
Ishita Chakravorty
Mahima Ranjan Mukhopadhyay
Advocates.

Judges

S.S Nijjar, C.J
Tapen Sen, J.

Acts

Section 80 of the Motor Vehicles Act, 1988 has replaced section 57 of the old Motor Vehicles Act, 1939. Section 57 of the old Act of 1939 and section 80 of the new Motor Vehicles Act, 1988,
SECTION 63 MOTOR VEHICLES ACT 1988
provisions of section 72 or section 74 or section 76 or section 79
SECTION 68 MOTOR VEHICLES ACT 1988
sub-section (3) of section 47 or sub-section (2) of section 55,
SECTION 80 MOTOR VEHICLES ACT 1988
sections 68(3)(a) & 68(3)(b) of the Motor Vehicles Act, 1988.
provisions of section 48 or section 51 or section 56
provisions of section 80 of the Central Act of 1988
sub-sections (3) and (4) of the Motor Vehicles Act, 1939
Act, 1939 (OLD ACT) MV Act, 1988 (NEW ACT) 57. Procedure
sub-section (2) and (4) of section 44 of the old Act
ARTICLE 226 A CONSTITUTION OF INDIA
SECTION 99 MOTOR VEHICLES ACT 1988
MOTOR VEHICLES ACT 1988
ARTICLE 226 CONSTITUTION OF INDIA
ARTICLE 141 CONSTITUTION OF INDIA
Clause (a) of sub-section (3) of section 71
Clause (a) of sub-section (3) of section 74:
sub-sections (3) and (4) of section 44
provisions of the new Act of 1988,
section 68 of the Central Act.
sub-section (1) of section 66
provisions of sub-section (4)
provisions of sub-section (9)
section 67 nor section 68
sections 68(3)(a) & 68(3)(b)
sub-section (3) clause (b)
Sub-sections (3)(b)
section 68(3)(ca)
sub-section (3)(b)
section 68(3)(b)

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Smart Summary

Structured Summary of the Opinion (Tapen Sen, J.)

Factual and Procedural Background

This appeal challenges the Single Judge's judgment dated 14.5.2007 in W.P. No. 1395 of 2006 (GA No. 619 of 2007) — Abdur Rahim Mondal v. State of West Bengal — which quashed all steps taken by respondent No. 6 (State Transport Authority, Government of West Bengal — "STA") based on applications submitted suo motu on 17.07.2006 by the appellants and quashed the resolution granting permits to the appellants. The Single Judge nevertheless observed the STA and the appellants could take fresh steps in accordance with law for grant of Stage Carriage Permits.

The writ petition (W.P. 1395/2006) was filed by respondent Nos. 1 to 4 (existing operators) challenging the STA's entertainment and consideration of the appellants' applications for grant of Stage Carriage Permits for the interregional route Nabadwip–Burdwan. The petitioners alleged that a Government notification dated 16.2.2006 required a recommendation from the relevant Regional Transport Authorities ("RTAs") before the STA could consider inter-regional permit applications, and that the STA had proceeded despite absence of such recommendations. The STA had received the applications without any recommendation from the RTAs; the petitioners objected and sent a legal notice, yet the STA resolved to grant permits on 22.8.2006. The Single Judge initially restrained action but varied it, permitting operation subject to the writ petition's result. The Single Judge eventually held the STA had acted without authority under the 16.2.2006 notification and that the petitioners had locus standi, and quashed the STA's actions; the appellants have appealed.

Legal Issues Presented

Whether the petitioners (respondent Nos. 1 to 4), as existing operators, had locus standi to challenge the STA's action in entertaining and granting inter-regional permits after the enactment of the Motor Vehicles Act, 1988 (specifically in light of section 80 and relevant Supreme Court authority).
Whether the State Transport Authority was empowered to receive and consider the appellants' suo motu applications submitted on 17.7.2006 for an inter-regional route, given the Government notification dated 16.2.2006 that purportedly required an RTA recommendation for inter-regional permits.
Whether the notification dated 16.2.2006 could validly restrict the statutory operation of section 80 of the Motor Vehicles Act, 1988 (i.e., whether a State notification could impose the embargo contained in the 16.2.2006 notification).
Whether a subsequent notification dated 9.11.2006 could validate or cure any defect in the STA's earlier actions (including any retrospective or clarifying effect of such subsequent notification).

Arguments of the Parties

Respondent Nos. 1 to 4 (petitioners / existing operators)

Contended that, pursuant to the Government notification dated 16.2.2006, the STA had no authority to entertain or consider the appellants' applications for inter-regional permits in the absence of any recommendation from either of the two RTAs concerned.
Alleged that the STA ignored their written objections/representations filed on 18.8.2006 and a legal notice dated 21.8.2006, but proceeded on 22.8.2006 to resolve to grant permits to the appellants.
Relied on several unreported and reported High Court judgments (as articulated to the Single Judge) to support locus standi and to challenge the STA's action as illegal or arbitrary.

Appellants (those who applied for permits)

Argued the 16.2.2006 notification could not have denuded the powers of the STA under section 68 of the Motor Vehicles Act, 1988.
Submitted that a subsequent notification dated 9.11.2006 superseded the earlier notification dated 16.2.2006, and that the subsequent notification recognized the inherent power of the STA, thereby (they argued) precluding interference by the Writ Court with the STA's consideration of the applications.

State Transport Authority (STA)

The STA's affidavit acknowledged that it had received the appellants' applications without recommendations from either of the RTAs (as recorded in the Single Judge's consideration).
Implicitly relied upon its statutory powers and notifications to justify entertaining applications and granting permits (the appellate discussion analyzes these positions in light of statute and precedent).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Monoranjan Mukherjee (W.P. No. 6229(W) of 2002) — unreported	Used (by the Single Judge) to support that existing operators may challenge transport authority action when authorities act illegally or arbitrarily.	The Single Judge relied on this unreported judgment to find petitioners had locus standi; the appellate court records that reliance but treats the Single Judge's conclusion as contrary to binding Supreme Court authority.
Amirul Islam Mullick (W.P. No. 8013(W) of 2003) — unreported	Same context as above: support for standing where transport authorities act illegally/arbitrarily.	The Single Judge relied upon this unreported precedent to support locus standi; the appellate court notes that reliance but rejects the Single Judge's conclusion in light of section 80 and Supreme Court authority.
Prosad Kumar (W.P. No. 6875(W) of 2003) — unreported	Same context — relied upon to permit existing operators to attack transport authority action alleged to be illegal/arbitrary.	Single Judge used it to support locus standi; appellate court records that use and finds it inconsistent with binding Supreme Court precedent interpreting the new Act.
Mithilesh Garg v. Union of India, AIR 1992 SC 443	Explains that the new Motor Vehicles Act, 1988 liberalised the procedure for grant of permits so an intending operator can get a permit for the asking and the old scheme of limiting permits and protecting existing operators was done away with.	The appellate court treats Mithilesh Garg as authoritative: it holds that section 80 and Mithilesh Garg remove the legal right of existing operators to challenge grant of permits and therefore respondents 1–4 lacked locus standi; it relies on Mithilesh Garg to construe section 80.
Sanjit Chakroborty v. State of West Bengal, 2004 (1) WBLR (Cal) 293	Authority (relied upon before the Single Judge) asserted the STA possessed inherent power to grant inter-regional stage-carriage permits.	The Single Judge considered this judgment but rejected the contention based upon it; the appellate court records that rejection and undertakes its own analysis of STA powers.
Sujata Ganguly v. State of West Bengal (FMA No. 604 of 2004) — Division Bench unreported (dated 27.9.2005)	Asserted that STA possessed inherent power to grant inter-regional permits (as relied on before the Single Judge).	The Single Judge's reliance on other authorities notwithstanding, he rejected this position; the appellate court references these rulings in the broader discussion of STA powers and later Division Bench authority.
Mani Subrat Jain v. State of Haryana, AIR 1977 SC 276	Principle that mandamus cannot be sought without a legal right; a person is aggrieved only where a legal right is denied by someone under a legal duty.	The appellate court invoked this Supreme Court principle to emphasise that petitioners lacked a judicially enforceable right under the new Act and therefore could not seek mandamus; used to conclude lack of locus standi.
Secy, to Govt. v. Peekay Re-Relling Mills (P) Ltd., 2007 (4) SCC 310	Referenced for support that a subsequent notification can have clarifying effect; the appellate court cites paragraph 17 for its view regarding the later notification curing defects in the earlier notification.	The appellate court states that its view — that the 9.11.2006 notification cured the defect in the 16.2.2006 notification — finds support in paragraph 17 of this Supreme Court judgment.
State of Rajasthan v. Noor Mohammad, AIR 1973 SC 2729	Interpreted earlier Act provisions to hold STA is a superior authority and can perform duties of an RTA 'if it thinks fit' — i.e., STA may exercise RTA functions in certain circumstances without an RTA request.	The appellate court relied on Noor Mohammad (and later Division Bench authority) to hold that STA has jurisdiction under section 68(3)(b) to perform RTA duties where it thinks fit and therefore could entertain inter-regional applications.
Sher Singh v. State Transport Authority, AIR 1969 MP 92	Provincial High Court view supporting that subsections allow STA to perform RTA functions for inter-regional routes and to deprive RTAs of jurisdiction to that extent.	The appellate court cites this decision (via the Single Judge's summary) as consistent with the view that STA can exercise RTA functions 'if it thinks fit'.
Bidhan Hatua v. State of West Bengal & Ors., 1996 (1) CLJ 30	Earlier High Court authority supporting that STA has jurisdiction to perform duties of RTA under appropriate circumstances.	The appellate court cites it as further support for the view that STA could grant permits for inter-regional routes under section 68(3)(b).

Court's Reasoning and Analysis

The appellate court's analysis proceeds in discrete steps grounded in statute and precedent as recorded in the opinion:

Statutory starting point — section 80 of the Motor Vehicles Act, 1988: The court emphasised that section 80 permits an application for any permit to be made "at any time" and says an RTA, STA or prescribed authority "shall not ordinarily refuse" to grant a permit. The court contrasted the new Act (1988) with the old Act (1939) and highlighted the liberalisation effected by section 80.
Locus standi issue: The court analysed whether existing operators (respondent Nos.1–4) had a legal right to challenge the grant of permits. Relying on Mithilesh Garg and Mani Subrat Jain, the court held that the new statutory regime removed the existing operators' legally enforceable right to challenge grant of permits, and therefore the petitioners lacked locus standi to maintain a writ petition under Article 226. The court concluded the Single Judge erred in holding otherwise.
Validity and effect of the 16.2.2006 notification: The court examined the notification (published in Calcutta Gazette on 27.2.2006) that purported to require an RTA recommendation before STA could consider inter-regional applications. It held that the notification, to the extent it imposed an embargo inconsistent with section 80, was not tenable — a State notification could not validly impose a condition contrary to section 80 of the Central Act or to the Supreme Court's interpretation in Mithilesh Garg.
STA's jurisdiction under section 68(3)(b): The court analysed the scope of section 68(3)(b) and accompanying provisions. It accepted the reasoning of a recent Division Bench and previous precedents (including Noor Mohammad and Sher Singh) that the STA may perform RTA duties "if it thinks fit" and is not limited to acting only where requested by an RTA or only where no RTA exists. The court held that the STA therefore had jurisdiction to entertain the applications for inter-regional permits in the circumstances of the case.
Effect of the 9.11.2006 notification: The court observed that the subsequent notification of 9.11.2006 functioned as a clarification that recognised inherent STA power in exceptional cases even without an RTA recommendation. The court concluded that the later notification cured the defect in the earlier notification and that the earlier notification could not invalidate operation of section 80 or the Supreme Court's jurisprudence; it also relied on paragraph 17 of Secy, to Govt. v. Peekay Re-Relling Mills for support.
Conclusion on illegality/arbitrariness: The court was unpersuaded that the STA had acted illegally. It found the Single Judge's conclusion to the contrary to be incorrect because the STA had statutory authority (section 80 and section 68(3)(b), as interpreted) to entertain the applications, and because the petitioners lacked the requisite legal right to seek mandamus or quash the resolutions.

Holding and Implications

Holding:

APPEAL ALLOWED; the Single Judge's order dated 14.5.2007 is set aside.

The appellate court upheld the action of the State Transport Authority in entertaining the applications of the appellants submitted on 17.7.2006 and upheld the resolutions by which permits were granted to the appellants. Consequently, the writ petition W.P. No. 1395 of 2006 was dismissed. The appeal was allowed without any costs.

Implications:

Direct effect on the parties: The appellants' permits (granted by the STA pursuant to applications dated 17.7.2006) are upheld; the writ petition filed by respondent Nos. 1–4 is dismissed; the Single Judge's quashing of the STA's steps and resolution is vacated.
On locus standi and statutory interpretation: The court reiterated that section 80 of the Motor Vehicles Act, 1988 and the Supreme Court's interpretation in Mithilesh Garg limit the ability of existing operators to challenge administrative grant of permits; the judgment emphasises the liberal statutory regime favouring grant of permits and restricts standing where no judicially enforceable right is shown.
On notifications and executive direction: The court held that a State notification (16.2.2006) cannot validly curtail the statutory operation of section 80; a subsequent clarification (9.11.2006) was held to cure defects in the earlier notification insofar as it recognises STA's inherent power in exceptional cases. The court therefore did not treat the STA's conduct as illegal for entertaining applications without RTA recommendations in the circumstances described.
Broader precedent: The opinion applies and follows binding Supreme Court authorities (notably Mithilesh Garg and Mani Subrat Jain) and earlier High Court and Division Bench interpretations of STA powers; the court did not purport to lay down a new precedent but applied existing authorities to the facts before it.

Additional administrative note recorded in the opinion: urgent xeroxed certified copies of the order may be issued on appropriate application(s) expeditiously subject to usual terms and conditions.

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Sekhar Chatterjee, Achyutanonda Chatterjee v. Abdur Rahim Mondal, Basudeb Ghosh, Santanu Banerjee, Aditya Roy, State Of West Bengal, State Transpert Authority, Secretary, State Transport Authority

Tapen Sen, J.:— This appeal is directed against the judgment dated 14.5.2007 passed by a learned Single Judge of this Court in W.P No. 1395 of 2006 (GA No. 619 of 2007) [Abdur Rahim Mondal v. State of West Bengal] holding that all steps taken by the respondent No. 6 (State Transport Authority, Government of West Bengal) on the basis of applications submitted suo motu on 17.07.2006 by the appellants, shall be deemed to be quashed.

The learned Judge also quashed the resolution granting permits to the appellants but observed that nothing in the judgment would prevent the State Transport Authority, Government of West Bengal (hereinafter referred to for the sake of brevity and precision as the STA) and the appellants from taking fresh steps in accordance with law for the grant of Stage Carriage Permits for the route in question.

2. Let it be recorded that interlocutory application being GA No. 619 of 2007 was filed by he private respondents herein praying for modification of the Order dated 7.2.2007 passed by another learned Single Judge of this Court who, while taking note of the submissions of the State respondents to the effect that no offer letters had been issued to the appellants till then, directed that in the event such offer letters had been issued to the appellants then the parties would maintain status quo as on that day i.e 7.2.2007 This order is at running page 105 of the Paper Book.

3. The facts which are necessary to be dealt with are that the aforementioned writ petition being W.P 1395 of 2006 (hereinafter referred to as the instant writ petition) was filed by the respondent Nos. 1 to 4 who challenged the action of the STA, West Bengal in entertaining the applications of the appellants by which they had prayed for the grant of Stage Carriage Permits for an interregional route, Nabadwip to Burdwan.

4. Their case before the learned Single Judge was that in view of the notification dated 16.2.2006 issued by the Government of West Bengal and in the absence of any recommendation from either of the two Regional Transport Authorities (hereinafter referred to for the sake of brevity as the RTA), the STA had no authority to enterain and consider the applications filed by the appellants for grant of Stage Carriage Permits for the aforesaid inter-regional route, Nabadwip to Burdwan.

5. These applications were filed suo motu on 17.7.2006 without the STA having called for applications from interested operators. The respondent Nos. 1 to 4 came to learn about such applications and they therefore filed their objection/representation on 18.8.2006 contending, inter alia, that in the absence of any recommendation from either of the two Regional Transport Authorities (Nabadwip and Burdwan), the STA was totally incompetent to consider the said applications filed by the appellants. According to the respondent Nos. 1 to 4 (before the learned Single Judge), their objections/representations were ignored whereafter they sent legal notice dated 21.8.2006 but even then, the STA ignored the same and proceed to consider the applications on 22.8.2006 and resolved to grant permits to the appellants. Thereafter the instant writ petition was filed on 11.9.2006

It appears from the impugned, judgment/order of the learned Single Judge delivered on 14th May, 2007, that initially, an order of restraint was passed but that was subsequently varied in view of the fact that the permits had already been issued and therefore ‘balance of convenience and inconvenience’ called for an order permitting appellants to operate their vehicles subject to the result of the writ petition.

6. On the basis of the aforementioned facts, the learned Single Judge observed that the first question that fell for his decision was as to whether, the petitioners (respondent Nos. 1 to 4 herein) had the locus standi to question the action of the STA?

The learned Single Judge answered the aforementioned question in the affirmative by holding that the petitioners (Respondent Nos. 1 to 4) had the locus standi and were entitled to move the Writ Court alleging that the STA had no authority to receive the applications from the appellants. In doing so the learned Single Judge relied upon:

a) An unreported judgment dated 3.2.2003 passed by another learned Single Judge of this Court in W.P No. 6229(W) of 2002 in the case of Monoranjan Mukherjee v. State of West Bengal;

b) An unreported judgment dated 21.1.2004 passed by another learned Single Judge of this Court in W.P No. 8013(W) of 2003 (Amirul Islam Mullick v. State of West Bengal);

c) An unreported judgment dated 12.5.2005 passed by another learned Single Judge of this Court in W.P No. 6875(W) of 2003 in the case of Prosad Kumar v. State of West Bengal

Relying upon the aforementioned unreported judgments, the learned Single Judge accepted the contentions of the learned Counsel appearing for the petitioners (Respondent Nos. 1 to 4) to the effect that it transport authorities acted illegally or arbitrarily or in patent violation of the provisions of law, then the existing operators on a route, even in the face of the provisions of the Motor Vehicles Act, 1988 and the rules framed thereunder as well as the Judgment of the Apex Court in the case of Mithilesh Garg v. Union of India, reported in AIR 1992 SC 443, were entitled to maintain a writ petition under Article 226 of the Constitution of India.

7. After having so held, the learned Single Judge then proceeded to consider the other question that was raised by the petitioners (respondent Nos. 1 to 4) to the effect that in view of the Government notification dated 16 February, 2006, the STA had no authority to entertain the applications. The affidavit filed by the STA also revealed that it had received the applications without there being any recommendation from either of the RTAs although, in terms of the aforementioned notification dated 16.2.2005, the STA could receive and consider an application for grant of an inter-regional permit only if one of the RTAs involved, had made its recommendation.

According to the learned Single Judge, the notification was issued in exercise of powers conferred by sub-sections (3a) and (3b) of section 63 of the Motor Vehicles Act, 1988 and therefore, it was held, that the STA was not empowered to receive and consider applications filed/submitted suo motu by the appellants on 17.7.2006

The learned Single Judge also rejected the contentions of the learned Counsel for the petitioners which were based on the judgments of this Court and which were passed in the case of Sanjit Chakroborty v. State of West Bengl, reported in 2004 (1) WBLR (Cal) 293, as well as the unreported judgment dated 27.9.2005 of the Division Bench of this Court passed in the case of Sujata Ganguly v. State of West Bengal in FMA No. 604 of 2004 to the effect that the STA possessed inherent power to grant inter-regional stage-carriage permits and therefore, it had not committed any mistake while dealing with the applications of the appellants.

8. The learned Counsel for the appellants before the Writ Court had also submitted that the notification dated 16.2.2006 could not have denuded the powers of the STA under section 68 of the Central Act. He had also submitted that by a subsequent notification dated 9 November, 2006 the earlier notification dated 16 February, 2006 was superseded and therefore the subsequent notification dated 9.11.2006 obviously recognised the inherent power of the STA and therefore, the Writ Court should not interfere on the ground that the applications were considered by the STA without there being any representation from either of the two RTAs.

9. The learned Single Judge rejected the aforementioned contentions of the learned Counsel appearing for the appellants on the ground that the notification dated 16.2.2006 was “not in question” and therefore, there was no reason to examine as to whether it was issued in contravention of the provisions of the section 68 of the Motor Vehicles Act, 1988. The learned Judge also held that a subsequent notification dated 9.11.2006 could not have validated an action of the STA retrospectively because the said subsequent notification was not made retrospective. The learned Single Judge held that on the day the STA had received the applications, the notification dated 16.2.2006 was in force and it clearly prohibited the STA from receiving any application for an inter-regional route unless recommended by the RTA involved for the said route. The learned Judge also took into consideration the fact that the said notification was stayed on 1.11.2006 when, the latter notification being the one issued on 9.11.2006 had already superseded the earlier notification.

10. Taking into consideration the foregoing facts and circumstances, the learned Single Judge allowed the writ petition holding that all steps taken by the STA pursuant to the applications filed by the appellants on 17.7.2006, were illegal and therefore, they were deemed to be quashed including the resolution by which permits were granted to the appellants.

11. Being aggrieved, the appellants have filed this appeal.

12. Before we proceed to consider the rival contentions of the parties, we have to bear in mind that we are dealing with the new Motor Vehicles Act which replaced the old Act of 1939. Under the new Act, section 80 clearly lays down that an application for a permit of any kind may be made at any time. It also lays down that an RTA, STA or any prescribed authority referred to in section 66(1), shall not ordinarily refuse to grant a permit of any kind made at any point of time. Section 80 of the Motor Vehicles Act, 1988 has replaced section 57 of the old Motor Vehicles Act, 1939. Section 57 of the old Act of 1939 and section 80 of the new Motor Vehicles Act, 1988, placed in juxtaposition to each other reads as follows:

MV Act, 1939 (OLD ACT) MV Act, 1988 (NEW ACT) 57. Procedure in applying for and granting permits.- 80. Procedure in applying for and granting permits.- (1) An application for a contract carriage permit or a private carriers permit may be made at any time. (1) An application for a permit of any kind may be made at any time. (2) An application for a stage carriage permit or a public carriers permit shall be made not less than permit shall be made not less than six weeks before the date on which six weeks before the date on which is cesired that the permit shall take effect or, if the Regional Transport Authority appoints dates for the receipt of such applications, on such dates. d) A Regional Transport Authority State Transport Authority or any prescribed authority referred to in sub-section (1) of section 66 it shall not ordinarily refuse to grant an application for permit of any kind made at any time under this Act: (3) On receipt of an application for a stage carriage permit or a public carriers permit, the Regional Transport Authority shall make the application available for inspection at the office of the authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representation in connection there with may be submitted and the date, not being less than thirty days from such publication, on days from such publication, on days from such publication, on which, and the time and place at which, the application and any representations received will be considered: Provided that the Regional Transport Authority, State Transport Authority or any prescribec authority referred to in sub-section (1) of section 66 may summarily refuse the application if the grant any permit in accordance with the application would have the effect of increasing the number of stage carriages as fixed and specified in a notification in the Official Gazette under Clause (a) of sub-section (3) of section 71 or of contract carriages as fixed and specified in a notification in the Official Gazette under Clause (a) of sub-section (3) of section 74: Provided that, if the grant of any permit in accordance with the application or with molifications would have the effect in increasing the number of vehicles operating in the region or in any area any route within the region, under the class of permits to which the application relates, beyond the limit fixed in that behalf under sub-section (3) of section 47 or sub-section (2) of section 55, as the case may be, the Regional Transport Authority may summarily refuse the application without following the procedure laid down in this sub-section. Provided further that where a Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of section 66 refuses an application for the grant of a permit of any kind under this Act, it shall give to the applicant in writing its reasons for the refusal of the same and an opportunity of being heard in the matter (3) An application to vary the conditions of any permit other than a temporary permit, by the inclusion of a new route or routes or a new area or by altering the route or routes or area covered by it, or in the case of a stage carriage permit by increasing the number of trips above the specified maximum or by the variation, extension or cur tailment of the route or routes or the area specified in the permit shall be treated as an application for the grant of a new permit: (4) No representation in connection with an application referred to in sub-section (3) shall be considered the Regional Transport Authority unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the person making such representation. Provided that it shall not be necessary so to treat an application made by the holder of stage carriage permit who provides the only service on any route to increase the frequency of the service so provided without any increase in the number of vehicles: (5) When any representation such as is referred to in sub-section (3) is made the Regional Transport Authority shall dispose of the application at a public hearing at which the applicant and the person making the representation shall have an opportunity of being heard either in person or by a duly authorised representative. Provided further that, (i) in the case of variation, the termini shall not be altered and the distance covered by the variation shall not exceed twenty-four kilometres; (ii) in the case of extension, the distance covered by extension shall not exceed twenty-four kilometres from the termini, and any such variation or extension within such limits shall be made only after the transport authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant separate permit in respect of the original route as so varied or extended or any part thereof. (6) When any representation has been made by the persons or authorities referred in section 50 to the effect that the number contract carriages for which permits have already been granted in any region or any area within a region is sufficient for or in excess of the needs of the region or of such area, whether such representation is made in connection with particular application for the grant of a contract carriage permit or otherwise, the Regional Transport Authority may take any such steps as it considers appropriate for the hearing of the representation in the presence of any persons likely to be affected thereby. e) A Regional Transport Authority or State Transport Authority or any prescribed authority referred to in sub-section (1) of section 66 may before such date as may be specified by it in this behalf, replace any permit granted by it before the said date by a fresh reasons for the refusal, permit conforming to the provisions of section 72 or section 74 or section 76 or section 79 as the case may be, and the fresh permit shall be valid for the same route or routes or the same area for which the replaced permit was valid: (7) When a Regional Transport Authority refuses an application for a permit of any kind, it shall give to the applicant in writing its reasons for the refusal. Provided that no condition other than a condition which was already attached to the replaced permit or which could have been attached thereto under the law in force when that permit was granted shall be attached to the fresh permit except with the consent in writing of the holder of the permit. (8) An application to vary the conditions of any permit, other that a temporary permit, by the inclusion of a new route or routes or a new area or, in the case of a stage carriage permit, by increasing the number of trips above the specified maximum or by altering the route covered by it or in the case of a contract carriage permit or a public carriers permit, by increasing the number of vehicles covered by the permit, shall be treated as, an application for the grant of a new permit: (5) Notwithstanding anything contained in section 81, a permit issued under the provisions of sub-section (4) shall be effective without renewal for the remainder of the period during which the replaced permit would have been so effective. Provided that it shall not be necessary so to treat an application made by the holder of a stage carriage permit who provides the only service on any route or in an/area to increase the frequency of the service so provided without any increase in the number of vehicles. (9) A Regional Transport Authority may, before such date as may be specified by it in this behalf, replace any stage carriage permit or contract carriage permit or public carriers permit granted by it before the said date by a fresh permit conforming to the provisions of section 48 or section 51 or section 56 as the case may be, and the fresh permit shall be valid for the same route or routes or the same area for which the replaced permit was valid: Provided that no condition other than a condition which was already attached to the replaced permit or which could have been attached thereto under the law in force when that permit was granted shall be attached to the fresh permit except with the consent in writing of the holder of the permit. (10) Notwithstanding anything contained in section 58, a permit issued under the provisions of sub-section (9) shall be effective without renewal for the remainder of the period during which the replaced permit would have been so effective.

13. Comparing the two statutes, two things stand out loud and clear and they are, firstly, an application for a permit of any kind may be made at any point of time and the transport authority shall not ordinarily refuse to grant permit and secondly, while granting a permit under the provisions of the new Act, it is not necessary that reasons must be given as to why it thought it fit to grant the permit. It is only when the transport authority proceeds to refuse an application under the second proviso appended to section 80(2) that such an authority is required to give reasons to the applicants saying as to why it proceeded to refuse or to not consider the prayer for grant of an application for a permit.

14. It is therefore obvious that the new Act of 1988 is so liberal in the matter of grant of permit that the only consideration that must weigh with this that its action must always be pro bono publico (for the benefit of the public). It was in the aforementioned background that Their Lordships in the Supreme Court while delivering the land mark judgment in the case of Mithilesh Garg v. Union of India, reported in AIR 1992 SC 443, laid down that a comparative reading of the provisions of the new Act and the old Act makes it clear that the procedure for grant of permits under the new Act has been liberalised to such an extent that an intending operator can get a permit for the asking irrespective of the number of operators already in the field. The scheme envisaged under sections 47 and 57 of the old Act has been completely done away with by the new Act and the right of the existing operators to file their objections and the provisions to impose limits on the number of permits have been taken away totally.

Under such circumstances it is obvious that the locus standi of the existing operators/persons interested/persons aggrieved, has been taken away completely by Teason of section 80 of the new Act conferring them a status without any existing right to challenge the grant of permit.

Consequently and in the absence of legal right the respondent Nos. 1 to 4 had no locus standi to challenge an act by which a transport authority chose to grant permits to these appellants. Therefore, the finding of the learned Single Judge to the extent holding that the respondent Nos. 1 to 4 were entitled to move the Writ Court, is held to be a finding and/or an order which is contrary to the well-known judgments holding the field in this context. One such renowned judgment is the one passed in the case of Mani Subrat Jain v. State of Haryana, reported in AIR 1977 SC 276 : 1977 SCC (L & S) 166, which inter alia lays down that “no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something.” (Quoted Verbatim)

15. In view of the judgments of the Apex Court passed in the case of Mithilesh Garg, interpreting the provisions of the new Act of 1988, the right of the respondent Nos. 1 to 4 were taken away and therefore, in our view, the learned Judge was not right in holding that even then, they had the right and/or the locus standi to maintain a writ petition under Article 226 of the Constitution of India. The learned Judge could not ignored the observations of the Apex Court which was law within the meaning of Article 141 of the Constitution of India and which is binding on all Courts within the territory of India.

16. The other question which seems to have weighed with the learned Single Judge was as to whether the action of the State Transport Authority can be upheld even if it proceeds to act contrary to law or arbitrarily or in patent violation of the provisions of the law. In the aforementioned background, the learned Single Judge has held that since the notification dated 16.2.2006 clearly prohibited the State Transport Authority to deal with an application not recommended by either of two RTAs and since the STA, not withstanding such notification proceeded to grant the permits, it therefore acted illegally and as a consequence thereof, the respondents had the locus standi to maintain the writ petition.

Let us there examine the said notification dated 16.2.2006 which has been brought on record at page 41 of the Paper Book.

17. The said notification dated 16.2.2006, was published in the Calcutta Gazette on 27.2.2006 It was issued purporting to be under the powers conferred under sections 68(3)(a) & 68(3)(b) of the Motor Vehicles Act, 1988. According to the respondents, this notification clearly took away the power of the STA to grant permit on an inter-regional route in the absence of a recommendation of either of the two RTAs. The said notification reads as follows:

“NOTIFICATION

No. 551-WT/3M-155/2005Date-16.02.2006

The State Transport Authority, West Bengal has resolved in it meeting held on 24.11.2005 to recommend to the Government for declaring a policy regarding grant of inter-regional as well as inter-state Stage carriage permits in pursuance of the directions of the Hon'ble Division Bench of the Hon'ble High Court at Calcutta in FMA No. 604 of 2004 (Re: Sujata Ganguly)

After careful consideration of the matter, in exercise of powers conferred under sub-section (3)(a) & (3)(b) of section 68 of the Motor Vehicles Act, 1988, the Governor has been pleased to consider it necessary that for betterment of passenger transport in the State and for maintenance of better co-ordination and uniformity in the policy-decision regarding issue of stage carriage permit, State Transport Authority should be allowed to issue permits in respect of stage carriage routes covering two or more regions, in certain cases. Accordingly, the Governor is further pleased to direct that:

1. Application for grant of stage carriage permit on route covering two regions shall be received and considered by the State Transport Authority, West Bengal, if any one of the Regional Transport Authorities involved recommend such route,

2. Application for grant of stage carriage permit on route covering three or more regions shall be received and considered by the State Transport Authority, West Bengal, if any one of the Regional Transport Authorities involved recommend such route or if such routes are notified under section 68(3)(ca) or under section 99 of the Motor Vehicles Act, 1988 or in any other case,

3. The State Transport Authority, West Bengal will continue to issue permits in inter-State routes or in the routes formulated by the State Government.

This shall take effect on the date of publication of the same in the Official Gazette.

By Order of the Governor, Dilip Kumar Baksi

OSD & Ex-Officio Deputy Secretary to the Govt. of West Bengal”

(Quoted Verbatim)

18. The learned Single Judge has held that in view of the aforementioned notification dated 16.2.2006, there can be no doubt that the STA was not empowered to receive and consider the applications submitted on their own accord by the 4 and 5 respondents (i.e the appellants) on July 17, 2006.

We are afraid, such a finding is not correct because under the provisions of the principal statute quoted above i.e section 80, any person can file an application for a permit of any kind at any point of time and such an application cannot be ordinarily refusted. Thus the appellants were entitled to apply suo motu and on their own accord.

Now if the aforementioned notification is carefully looked into, it will be evident that under purported power under section 68, the Government of West Bengal, Department of Transport laid down a procedure which was totally contrary to the provisions of section 80 of the Central Act of 1988 by imposing a condition that the STA could consider an application for inter-regional route provided such an application was recommended by either of the RTAs. We are unable to understand as to how such an embargo could be created by the State of West Bengal in the teeth of section 80 read with the interpretation given by the Hon'ble Supreme Court in the case of Mithilesh Garg (supra). We are also unable to understand as to how such an embargo was created purportedly under sections 68(3)(a) & 68(3)(b) when the aforementioned statute does not entitle the State Government to do so. Section 68(3) merely lays down that the STA and every RTA shall give effect to the directions; issued under section 67 and the STA shall, subject to such directions and save and otherwise provided under the Act exercise and discharge the following function is namely:

a) to co-ordinate and regulate the activities and policies of the RTA;

b) to perform the duties of the RTA where there is no such authority and if it thinks fit or if so required by the RTA, to perform those duties in respect of any route common to two or more regions;

c) to settle all disputes and decide all matters on which differences of opinion arise between RTAs;

d) to discharge such other functions as may be prescribed.

Now under section 67, the State Government, having regard to (a) the advantages offered to the public, trade and industry by the development of motor transport; (b) the desirability of co-ordinating road and rail transport; (c) the desirability of preventing the deterioration of the road system and (d) the desirability of preventing uneconomic competition among permit holders may, by notification in the Official Gazette, issue directions both to the STA as well as to the RTA from time to time regarding

i) the fixing of fares and freights (including the maximum and minimum in respect thereof) for stage carriages, contract carriages and goods carriages;

ii) the prohibition on restriction of the conveying of long distance goods traffic generally or of specified classes of goods by goods carriages;

iii) any other matter which may appear to the State Government necessary of expedient for giving effect to any agreement entered into with the Central Govt. or any other State Government or the Government of any other country relating to regulation of motor transport generally and in particular to its co-ordination with other means of transport and the conveyancing of long distance goods traffic.

19. Neither section 67 nor section 68 confers a right upon the State Government to intermeddle with the right of the Transport Authority to act in accordance with law under the provisions of section 80 in matters relating to grant of permits which, in terms of Mithilesh Garg's case (supra) his to be granted for the mere asking of it. Consequently the argument of Mr. Asok De in support of the findings of the learned Single Judge to the effect that the notification dated 16.2.2006 was the Law and that the STA acted contrary to the same cannot be accepted.

For the same reason, the observation to the effect that the notification Dated 16.2.2006 was alive till 9.11.2006 and it was only after 9.11.2006 that the earlier notification was superseded is a redundant and superfluous observation because of the simple reason that even the notification of 16.2.2006 could not have invalidated the provisions of section 80 nor could it have invalidated the judgment of the Apex Court passed in the case of Mithilesh Garg (supra). Even otherwise, notification dated 9.11.2006 was a clarification of the notification dated 16.2.2006 Therefore, the subsequent notification related back to the date of the earlier notification. Clause 1 of the notification dated 9.11.2006 clearly recognises the inherent power of the STA to grant permits covering two regions, in exceptional cases even if there is no recommendation from the concerned RTAs. The defect/legal flaw in the notification dated 16.2.2006 has been cured by the subsequent notification. Therefore the petitioners could not claim infringement of any legal right on the basis of the earlier notification. Our view finds support in paragraph-17 of the judgment of the Hon'ble Supreme Court delivered in the case of Secy, to Govt. v. Peekay Re-Relling Mills. (P) Ltd., reported in 2007 (4) SCC 310.

We are therefore not at all impressed by the argument to the effect that the STA acted illegally. In this context, we must also advert to a recent judgment dated 12.6.2007 passed in FMA No. 769 of 2004 (MAT No. 963 of 2004) by a Division Bench of this Court presided over by Hon'ble the Chief Justice sitting with Hon'ble Mr. Justice D.P Sengupta. In the said judgment, Their Lordship have held that the STA has the jurisdiction under section 68(3)(b) to perform the duties of the RTA ‘if it thinks fit’ or if so required by the RTA. Their Lordships have also held that the term “if it thinks fit” cannot be circumscribed to mean that there must be a request from the RTA prior to the STA exercising the power of the RTA.

Their Lordships have also held that it cannot also be limited to cases where there is no RTA. The relevant portions of the observations of the Hon'ble Division Bench are as follows:

“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 is 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.

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. 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 form the above provisions that the State Transport Authority is a superior authority with jurisdiction over the whole of he State while the Regional Transport Authority is subordinate to it with it 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 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.’

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-section (2) and (4) of section 44 of the old Act as follows:

‘It is clear form 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.

Similar observations have been made by it 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 inter-regional 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 interregional route and to deprive the Regional Transport Authority of their jurisdiction to that extent.”

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.

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 (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.’

The learned Single Judge thereafter observed on the examination of the facts of hat particular case there had been irregularity on the put 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 for 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.”

(Quoted verbatim)

20. For the foregeing reasons, we are of the view that the learned Single Judge was neither right in holding that the respondent Nos. 1 to 4 were entitled to move the writ petition nor was he correct in holding, without referring to the provisions of section 80 of the Motor Vehicles Act, 1988 and without dealing with the judgment of the Supreme Court passed in the case of Mithilesh Garg (supra) that the STA was not empowered to receive and consider the application of the appellants. In the facts and circumstances involved in this case, a mere passing reference to the judgment of the Apex Court without considering its effect.

21. We are therefore clearly of the view that the order of the learned Single Judge cannot be upheld as it is not correct. We accordingly set aside the judgment dated 14.5.2007 passed in W.P No. 1395 of 2006 with GA No. 619 of 2007 and as a result, we upheld the action of the STA in entertaining the applications of the appellants submitted on 17.7.2006 We also uphold the resolutions adopted by the said STA granting permits to the appellants and as a result the writ petition, being W.P No. 1395 of 2006 is dismissed.

22. We accordingly allow this appeal, but without any costs.

23. Upon appropriate application (s) being made, urgent xeroxed certified copy of this order, may be given/issued expeditiously subject to usual terms and conditions.

S.S Nijjar, C.J: I agree.

Appeal allowed.

S.K.P

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