KIRAN PANDIT vs STATE OF WEST BENGAL & ORS

The Court : The petitioner whose application for grant of Inter-State stage carriage permit between the route from Kolkata to Basodih (Jharkhand)

was rejected on 15th September, 2017 by the State Transport Authority as the other applicant has produced the ready vehicle. It is not in dispute that

there are two vacancies in the said route, which was decided on mutual concurrence between the State of West Bengal and the State of Bihar

(presently the State of Jharkhand). There appears to be two applications, which came up before the authority for consideration â€" one filed by the

petitioner and the other by the respondent no.4. By resolution dated 30th June, 2016 a decision was taken by the State Transport Authority that the

temporary permit cannot be granted to the said respondents as the registration of the vehicle was with the said respondents in between 2011 and 2015.

The petitioner was allowed such permit as the vehicle was registered in the year 2016. The said respondents challenged the said decision in WP

No.23195(W) of 2016 which came up for disposal on 14th June, 2017. The said writ petition was allowed quashing and setting aside the said resolution

dated 30th June, 2016 and directed the respondent no.2 to re-consider the application submitted by both the parties in accordance with law within a

period of six weeks from the date of communication of this order.

It was observed in the said order that the respondent no.4 produced the ready vehicle whereas the petitioner herein was unable to produce the ready

vehicle till 30th June, 2016. The said order was carried to a Division Bench in MAT No.1142 of 2017. The said appeal was disposed of directing the

State Transport Authority to re-consider the matter on the basis of the documents supplied as on 30th June, 2016 and to arrive at the conclusion

independently in accordance with law. Simultaneously, the Division Bench observed that the said authority shall not be influenced and swayed by the

observations made by the Hon’ble Single Bench while deciding the said application.

What can be seen from the meaningful reading of the aforesaid orders, though the Hon’ble Single Bench quashed and set aside the resolution

dated 30th June, 2016 solely on the basis of the fact that the respondent no.4 produced the ready vehicle but such observation does not appear to be

convincing to the Division Bench though the ultimate decision of the Hon’ble Single Bench was affirmed and accepted. If such observation

remains and binds the authority, the specific recording of the statements that the said authorities shall not be swayed and influenced by the observation

made by the Hon’ble Single Bench shall become redundant and meaningless. It was a duty of the authority to decide the application independently

and solely on the basis of the documents furnished by the authority as on 30th June, 2016.

My attention is drawn to the resolution dated 30th June, 2016 wherefrom it appears that the petitioner submitted the temporary registration for two

vehicles issued on 30th June, 2016. Therefore, there is no fetter on the part of the authorities to take into account the aforesaid facts while re-

considering the said application in terms of the order passed by the Division Bench. The impugned order reveals that the only consideration which

weighed to the authority was that the respondent no.4 had a ready vehicle as on 30th June, 2016 and, therefore, he is entitled to a permit and

simultaneously rejected the application filed by the petitioner.

My attention is drawn to Section 71(3)(d) of the Motor Vehicles Act, 1988 which reads thus:

“Section 71(3(d): After reserving such number of permits as is referred to in Clause(c), the Regional Transport Authority shall in considering an

application have regard to the following matters, namely:

(i) Financial stability of the applicant;

(ii) Satisfactory performance as a stage carriage operator including payment of tax if the applicant is or has been operator of stage carriage service;

and

(iii) Such other matters as may be prescribed by the State Government. Provided that, other conditions being equal, preference shall be given to

applications for permits from â€

(i) State Transport undertakings;

(ii) Co-operative Societies registered or deemed to have been registered under any enactment for the time being in force;

(iii) Ex-servicemen;

(iv) Any other class or category of persons, as the State Government may, for reasons to be recorded in writing, consider necessary.â€​

The aforesaid Section deals with the procedure in considering an application for stage carriage permit by the Regional Transport Authority. Clause(d)

of Sub-section(3) of Section 71 of the Act envisages the factors to be taken into account at the time of considering an application filed for stage

carriage permit. The three conditions can be seen thereof, namely,

(i) Financial stability of the applicant;

(ii) Satisfactory performance as a stage carriage operator including payment of tax; and

(iii) Such other matters as may be prescribed by the State Government.

The learned Advocate appearing for the State respondents candidly submits that there is no provision nor there is any rules, guidelines or the circulars

issued by the State Government notifying the other factors to be considered at the time of disposal of an application for stage carriage permit.

However, he submits that subsequently by the orders of the different Court the authorities have imposed a condition relating to environmental

clearance and not otherwise. On the applicability of Subsection(3) of Section 71 of the Act, the learned Advocate for the respondents submits that the

said provision has no manner of application to the present case as it is restricted to a case where the State Government on a direction of the Central

Government notified in Official Gazette limiting the number of vehicles to operate on any city routes in the towns with the population of not less than

five lakhs.

Since the present case relates to the Inter-State stage carriage permit, the same has not been notified and, therefore, the conditions laid down in

Clause(d) of Sub-section(3) of Section 71 of the Act cannot apply. On the meticulous reading of the aforesaid provisions this Court finds substance in

the submission advanced by the respondents. Equally, this Court cannot overlook that such procedure is to be adhered to on an application seeking

permission for stage carriage permit. The present case also relates to a stage carriage permit but in between two adjoining and/or adjacent States the

Act as well as the rules is silent on such procedure or the factors to be considered at the time of taking decisions in relation thereto. Though the

Clause(d) of Sub-section(3) of Section 71 of the Act does not in stricto sensu apply to the present situation, yet this Court feels that once the

authorities are to take into account such factors while deciding an application for stage carriage permit as envisaged in Subsection(3) thereof, such

factors cannot be completely overlooked and/or eroded in considering the application for stage carriage permit in between two adjoining States. Those

factors should be taken into account apart from the others, if any, prescribed or imposed. The said authority cannot take a decision whimsically and

arbitrarily as there is no statute nor the rules nor any conditions prescribed by the State Government. The judgment of the statutory authority should be

judged on the parameter of reasonableness, which is opposed to whimsical and arbitrary decision. The gap is required to be filled to create check and

balances in the arbitrary decision of the statutory authority and to prevent the colourable exercise of power.

This Court, therefore, feels that the authority, in such situation, should also bear in mind the factors incorporated in Clause(d) of Sub-section(3) of

Section 71 of the Act. This Court finds that the authority while taking a decision on 15th September, 2017 was swayed by the observation by the

Hon’ble Single Bench despite the fact that the Division Bench expressly and in unequivocal terms observed that such observation should not sway

or influence the decision of the authority. This Court, therefore, quashed and set aside the impugned resolution dated 15th September, 2017.

The authority is directed to consider it afresh in the light of the observation recorded hereinabove and also of the order of the Division Bench passed

on 24th August, 2017 and shall see that the same is disposed of within four weeks from the date of communication of this order. With these

observations, WP No.720 of 2017 is, thus, disposed of.