M/s. Mrityunjoy Transport Co. vs State of West Bengal

Ruma Pal, J.—This appeal has been filed from an interim order passed on a writ application filed by the State of West Bengal and the Respondent Nos. 2 and 3 herein. The interim order stayed an order passed in favour of the Appellant No. 1 by the State Transport Appellate Tribunal (briefly referred to as STAT) constituted under the Motor Vehicles Act, 1988 (referred to as the Act).

The Appellant No. 1 is a partnership firm; The firm carries on the business of transport. It applied to the State Transport Authority (referred to STA) for grant of temporary and permanent permits in October, 1992 along the route Haldia to Tarakeswar. The STA did not dispose of the application. A writ application was filed challenging the inaction of the STA. The first writ application was disposed of on August 17, 1993 by directing the STA to consider the firm''s application for permanent permit within 4 months from the date of communication of the order. The STA was also directed to consider the firm''s application for temporary permit within a specified period and to issue a temporary permit in favour of the firm until the application for temporary permit was disposed of.

This order was communicated to the STA on August 27, 1993. The Appellant was called to appear before the STA on December 15, 1993. The firm was represented by its Advocate. According to the firm it was informed that a decision had been taken for grant of temporary permit of 4 weeks but the grant of permanent permit would be considered after receipt of a report from the Regional Transport Officers (RTO''s) Howrah, Hooghly and Midnapore. A temporary permit was accordingly granted to the firm subject to certain conditions which were duly fulfilled by the firm.

As the application for grant of permanent permit was not disposed of, the firm made an application to the STA for grant of a further temporary permit. This was refused. Challenging such refusal a second writ application was filed which was disposed by an Order dated March 11, 1994. This order provided that the firm must be granted a permanent permit having regard to the fact that it had failed to comply with the directions of the Court. The STA was also directed to issue a new temporary permit which was to remain valid until the permanent permit was granted. In the event no temporary permit was issued as directed, status quo as regards plying of the vehicle by the firm under the existing permit was to be maintained.

The STA preferred an appeal from the order directing the grant of permanent permit. An ad interim order was passed by the Appellate Court on July 21, 1994 allowing the firm to ply the vehicle on the route till the disposal of the appeal. The appeal itself was disposed on January 19, 1995 by directing the STA to dispose of the grant of a permanent Stage Carriage Permit along the route in question. In the meantime the STA issued a temporary permit from time to time, the list of which expired on May 10, 1995.

On April 13, 1995 a third writ application (Matter No. 1507 of 1995) was filed by the firm complaining of the failure of the STA to grant a permanent permit and praying for issue of a temporary permit. The writ petition was rejected on April 13, 1995. The appeal from this order was also dismissed.

On April 20, 1995 the STA passed a resolution rejecting the firm''s prayer for grant of a permit for the following reasons:

The route Haldia to Tarakeswar was an unapproved route. Moreover a part of the route Haldia to Tarakeswar was aligned with the route Calcutta to Digha and in terms of Section 104 of the MV Act read with judgment of Hon''ble Supreme Court in Ararsh Travels Bus Service v. State of U.P., STA could not grant any permit to private operator for operation of stage carriage service in any part of the notified route. Consequently STA decided to reject the prayer for PP on the route Haldia to Tarakeswar.

The firm filed a fourth writ application being C.O. No. 16345 (W) of 1995 challenging the order of rejection. This writ application is pending but the firm has given an undertaking that they will not proceed with the same. The undertaking was given because the firm decided to challenge the resolution of the STA dated April 20, 1995 by way of an appeal u/s 89 of the Act before the STAT. The appeal was heard by STAT on several days. The appeal was allowed by the STAT on July 19, 1996 by setting aside the resolution dated April 20, 1995 and by directing the STA to issue a permanent stage carriage permit in favour of the firm on the route Haldia to Tarakeswar within a fortnight from date subject to the firm depositing a sum of Rs. 500.00 as security deposit.

The firm deposited the amount of Rs. 500.00 by two pay orders both dated August 28, 1996 with the STA. It is the firm''s case that the said amount was received without protest by the STA.

The STA, however, did not issue the permanent permit as directed by the STAT within the time specified or at all and a fifth writ application was accordingly filed by the firm and one of its partners on September 2, 1996. Directions were given for filing affidavits. The fifth writ application is still pending. No affidavits, however, have been filed by the STA to the fourth writ application.

On September 13, 1996, the State of West Bengal and the STA (being the Respondents 1 to 3 herein) filed a writ application in which the order under appeal has been passed. The STA challenged the order of STAT, broadly speaking, on three grounds namely; (1) that the route in question was aligned with a nationalised route and as such no permanent permit could be granted; (2) the route was not an approved route and (3) that the Tribunal had no power to direct grant of a permanent permit. The prayer for an interim stay of operation of the judgment and order of STAT was granted by the Learned Single Judge on September 30, 1996. Being aggrieved by this order, the firm preferred this appeal.

It is the firm''s case that they had raised a preliminary point before the Learned Single Judge challenging the maintainability of the writ filed by the Respondent Nos. 1, 2 and 3 herein. Their grievance is that without disposal of such preliminary issue and without considering the fact that the fifth writ application was pending adjudication in the Original Side of the Court, the order of stay was passed. This appeal was preferred on October 15, 1996. By way of interim relief the Division Bench directed the grant of a temporary permit to the firm on the route in question for a period of 6 weeks. The order was passed without prejudice to the rights and contentions of the Respondents.

The matter has been heard at length after filing of affidavits.

The firm has contended:

(1) That the State of West Bengal had no locus standi to file a writ application challenging the action taken by one of its own authorities. Reliance has been placed on the decisions reported in The Regional Transport Authority and Another Vs. Sri Ram, Union of India (UOI) Vs. Satyendra Nath Banerjee and Others, The State of Madhya Pradesh Vs. Mother Superior Convent School and Another, and The Regional Transport Authority, Namakkal Region Vs. State Transport Appellate Tribunal, Madras and Others,

(2) On the merits it has been submitted that there was no scope of a formal approval of a writ under the Act or the regulations framed thereunder. The procedure was that the route when applied for would be considered and allowed or rejected on considerations provided in Sections 71, 72, 80, 104 of the Act and regulations 103 to 105, 113 and 114 ;

(3) In fact the route was not notified. Two notifications had been issued in respect of the route one of which excluded private operators from plying on the route and the second permitting private operators to ply on the route.

The State authorities have argued that they were persons aggrieved and as such were entitled to challenge the decision of the STAT and had the locus standi to do so. Reliance has been placed on the decisions reported in Bar Council of Maharashtra Vs. M.V. Dabholkar and Others, ; Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, and the definition of ''Person'' in the General Clauses Act.

On the merits it is submitted that the STAT misconstrued the notifications in question. It is conceded that in fact the route was notified and STAT could not have directed the grant of permit along that route.

It has also been submitted that the approval of the route was necessary under the provisions of Section 68 of the Act. It is further submitted that the temporary permits which had been granted to operators to ply along the route in question were only in compliance with the orders passed by the High Court. It is urged that the route had to be approved by the three RTO''s of Howrah, Hooghly and Midnapore. Without such approval no permit could be granted. It was conceded that an administrative order had been passed by the Transport Secretary, which was in modification of the Scheme in so far as it permitted private operators to ply on the route. It is said that such a modification not having been published was incompetent. In any event, if it was assumed to be within the jurisdiction of the Transport Secretary to modify an existing scheme notifying a route, the firm did not come within the preview of that modification. It is stated that there is already a finding by the High Court in connection with another case that the route in question was a notified one. Reliance has been placed on the decisions reported in State Transport Authority and Others Vs. Nirmalendu Das and Others, and C. Kasturi and others, etc. Vs. Secretary, Regional Transport Authority and another etc., and R. Raghuram Vs. P. Jayarama Naidu and Others, in this context. It has been finally submitted by the Respondents that the State Transport Undertakings were not parties to the appeal and the STAT should not have decided the matter in their absence. It has also been submitted that the fourth writ filed by the firm should also be dismissed on this ground. The decision reported in Afsarjahan Begum v. State of M.P. 1996 (8) S.C. 38 has been relied upon support of this submission.

Despite the exhaustive arguments, the fact remains that we are at present only concerned with the question whether the learned Single Judge was justified in passing the interim order he did. Generally speaking the Appeal Court will interfere only when the Single Judge has patently exercised his discretion wrongly. As such to borrow the language in Evans v. Bartlam (1937) A.C. 473:

It is clear that the Court of Appeal should not interfere with the discretion of a Judge acting within his jurisdiction unless the Court is clearly satisfied that he was wrong. But the Court is not entitled simply to say that if the Judge had jurisdiction and had all the facts before him, the Court of Appeal cannot review his order unless he is shown to have applied a wrong principle. The Court must if necessary examine a new the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order. Otherwise in interlocutory matters the Judge might be regarded as independent of supervision. Yet an interlocutory matters the Judge might be regarded as independent of supervision. Yet an interlocutory order or the Judge may often be of decision importance on the final issue of the case, and one which requires a careful examination by the Court of Appeal.

We are of the view that the Learned Single Judge should have considered the plea of maintainability of the writ at least prima facie at the outset. There is nothing in the order under appeal which shows that he did.

Indeed there appears to be substance in the argument of the Appellants that the STA has no right to file a writ petition so as to vindicate any order passed by it in a quasi-judicial capacity.

The Division Bench of the Allahabad High Court in the Regional Transport Authority and Anr. v. Sree Ram (Supra) was of the opinion that the Regional Transport Authority being a quasi-judicial authority has no personal interest in the confirmation or reversal of its order passed in such capacity. Therefore if its order is reversed by a superior authority it cannot maintain a writ under Article 226 against the order of the superior authority. A similar view has also been taken by the Madras High Court in The Regional Transport Authority v. State Transport Appellate Tribunal (Supra).

Even if we are in agreement with the decision of the Allahabad and Madras High Courts. It would not necessarily entail dismissal of the writ in this case. Had the writ application been filed only by the Respondents Nos. 2 and 3, the preliminary objection of the Appellants would have succeeded. But the State of West Bengal represented by its Secretary, Transport Department is also a writ Petitioner in this case. It is arguable that merely because the lis has been decided by an Officer of the State Government, this does not preclude from challenging the decision of that officer. The function of the State Government being to regulate the transport, it cannot be said this stage that it cannot legitimately be interested in challenging a decision which interferes with such right. The Appellants themselves have filed the fifth writ application against the State of West Bengal seeking to enforce the right granted to the Appellants by the STAT.

The Courts in R.T.A. v. Sree Ram (Supra) and R.T.A. v. State Transport Appellate Tribunal (Supra) also said that where no private party was interested but the State has the interest in upholding the order passed by the quasi-judicial authority, the State Government can challenge the order of the superior authority.

Again the decision in Union of India v. Satyendranath Banerjee (Supra) prima facie is an authority for the proposition that the Government can file a writ application for writs in the nature of mandamus, prohibition or certiorari to vindicate its rights.

In the State of Madhya Pradesh v. Mother Superior Convent School and Anr. (Supra) on a construction of the provisions of the Madhya Pradesh Public Trust Act, 1951, the Court came to the conclusion that the decision of the Registrar of Public Trust cannot be challenged by the State Government under Article 226 as the provisions clearly limited the right to challenge the decision of the Registrar to working Trustees or a person interested in the Public Trust. According to the Court, the State Government did not fall within either of these two categories and had therefore no locus standi to file the writ application.

On the other hand in Bar Council of Maharashtra v. M.V. Dabholkar (Supra) while interpreting the phrase ''person aggrieved'', it was held that a person is aggrieved if a legal burden is imposed on him. See J.M. Desai v. Roshan Kumar (Supra).

Therefore having regard to the state of the authorities we do not think that the Learned Judge was wrong in entertaining the writ application. This is not to say that we have decided the question finally. We only observe that the issue is an arguable one and the Learned Single Judge would not have been justified had he dismissed the writ application in limine on this ground.

On the merits, we have recently held in the case of Secy. Route No. 56 Bus Association v. Champadanga Dakhineswar Bus Association and Ors. by judgment dated February 20, 1997 that Section 68(3)(ca) of the Act does not mean prior formulation of a route by the State Government but that the formulation is inherent in the procedure for grant of permit. It will have to be seen by the Learned Single Judge whether the procedure for grant of permit has in fact been followed by the Appellants for a permanent permit on the route in question. The allegation in the writ petition filed by the Respondent Nos. 1, 2 and 3 that the Appellants had not complied with relevant provisions of the Act or the West Bengal Motor Vehicle Rules, 1989. Unless these statements of fact are controverted, the Learned Judge was bound to act on the basis of the allegations contained in the petition. This being so it is not necessary for us to consider whether the route in question is a notified one or not.

There was no scope for the Learned Judge to have considered the question whether a temporary permit should be granted to the Appellants to ply along the route in question as there was no submission before him for such relief.

For the reasons stated we do not interfere with the order under appeal. However, we grant liberty to the Appellant to apply to the Learned Single Judge for a temporary permit along the route in question. Such application if made will be disposed of by the Learned Single Judge in the manner as he may think fit.

There will be no order as to costs.

Devendra Kumar Jain, J.

I agree.