Nandalal Banerjee vs State of West Bengal

Banerjee, J.—In this rule the Petitioners challenge the order of the Regional Transport Authority. The extension of route No. 79A from Baduria to Bagjola overlaps the Petitioners'' route being No. 82 between Basirhat to Habra. The Petitioners'' case is that the Petitioners are all permit-holders in respect of stage carriage permit of route No. 82 running from Basirhat to Habra. The Respondents Nos. 4 to 13 also are the other permit-holders in respect of the said route. It is alleged that the present strength of buses is 16 which operates at a frequency of service of about 20/25 minutes from 5 a.m. to 10 p.m. It is alleged further that the route is not remunerative. In spite of the said fact, the Regional Transport Authority has extended the route of 79A, that means the route between Shyambazar to Baduria by giving extension of permit in respect of 8 additional buses. It is alleged that in doing so the Respondents Regional Transport Authority did not follow the provisions of Sections 47 and 57 of the Motor Vehicles Act. It is stated that the route of 79A which is sub-divided into 79, 79A, 79B and 79C and the total strength of buses in the route are 150 including temporary permit-holders, operating as per the following routes : (i) route No. 79, Shyambazar--Itindaghat, (ii) route No. 79A, Shyambazar--Baduria, (iii) route No. 79B, Shyambazar--Barasat (extended upto Esplanade), (iv) route No. 79C, Shyambazar--Hasnabad. It is alleged that the said route operates by rotational system for the purpose of economy of the permit-holders of the route No. 79 and sub-divided into routes Nos. 79A, 79B and 79C. It is alleged that routes Nos. 79A, 79B and 79C are highly profitable routes and the other allegations are how the Petitioners are highly affected by the extension of the route as alleged which is not necessary for me in the context of the arguments advanced to advert to.

Mr. S.C. Bose with Mr. B.B. Giri, on behalf of the Petitioners, contended that in order to increase a number of buses in a particular route, the Respondent must follow the provision of Section 47 of the Motor Vehicles Act. Secondly, Mr. Bose contended that after complying with Section 47 of the Act, the Respondent Regional Transport Authority must follow Section 57(8) of the Motor Vehicles Act and treat the extension of the route as if it is a new permit and that has not been followed and as such the extension of route granted to the Respondents is without jurisdiction.

Mr. Banerjee on behalf of the Respondent Regional Transport Authority contended that both Sections 47 and 57 have been followed. Mr. Banerjee referred to the extract from the minute of the meeting of Regional Transport Authority, Calcutta Region, held on September 26, 1972, which is as follows:

The enquiry report regarding extension of route No. 79A upto Bagjola was considered. After detailed discussion it was resolved that route 79A be extended upto Bagjola and the fleet strength of the route be increased by six (6) vehicles.

Mr. Banerjee contended that the resolution dated September 26, 1972, read with resolution dated January 18, 1972, is one u/s 47 of the Motor Vehicles Act and therefore, there is compliance of the provision of Section 47 of the Act. Mr. Banerjee further referred to the resolution dated April 19, 1971, of the Regional Transport Authority which stated as follows:

(13). In December 1969 a mass petition was received for extension of route 79A (Shyambazar to Baduria) upto Bagjola about 5 miles ahead of the present terminus at Baduria. The application was recommended by the M.L.As. The extension was prayed for on grounds that the area was fastly developing and there was no direct line with Calcutta. The Route Secretary welcomed this extention. Comments of the District Magistrate, 24 Parganas, was sought for and he recommended the extension of route 79A upto Mogra (Kamdebkati) via Baduria town and Bagjola and said the same would be beneficial to all concerned. Resolved that steps be taken to extend the route upto Bagjola and notice u/s 47 of the M.V. Act be issued in this connection.

Mr. Mahitosh Majumdar on behalf of the added Respondent however contends that the Petitioners have no locus standi to challenge inasmuch as the Motor Vehicles Act does not permit a challenge being thrown by co operator because of economic competition that may ensue if additional buses are plied on the route. It is further contended by Mr. Majumdar that the Motor Vehicles Act, in particular, Sections 47 and 57 of the Act have been followed in the facts of the present case.

Admittedly, in this case 8 permits have been granted by the Respondent. Admittedly, in this case if at all the Regional Trans port Authority decided to grant 6 more permits and not 8, therefore, in the face of it the grant of 8 permits was without jurisdiction.

Mr. Bose contends that the extension of route is a new route which has been so held in the case Barrackpore Bus Syndicate Vs. Serajuddin and Others, . It has also been so held in the case Sudhir Kumar Sadhu and Another Vs. Regional Transport Authority, Burdwan and Others, and Dilip Kumar Dutta v. Regional Transport Authority, Hooghly (1970) 75 C.W.N. 346. It cannot be disputed, in my opinion, in view of the judgment that the extension of the route must be treated as a new route and Sections 47 and 57 must be followed. If there is a violation of either Sections 47 and 57 of the Act, the grant of extension cannot be valid. In this case neither Section 47 nor Section 57 was followed. In Barrackpore Bus Syndicate Vs. Serajuddin and Others, Sinha J. held that a variation of the route in respect of a stage carriage is in effect the grant of permit in a fresh route and is, therefore, a fresh permit. In such a case it is incumbent upon the authorities to follow the procedure laid down in Section 47 of the Motor Vehicles Act and the relative rules. In the said case, it is argued that u/s 48(d)(iia) the route, upon which a permit is valid, is a ''condition'' attached to the permit and under Rule 81 of the Rules the Regional Transport Authority has the power, upon an application in writing by the holder of the permit, to vary the permit or any condition thereof. Sinha J. also held that ''the route is not a condition of the permit''. The condition is that the holder will operate on a particular route or routes and on no other. But assuming that it can be called a condition attached to the permit, still, a variation of the route is in effect the grant of permit in a fresh route and is therefore a fresh permit and it is incumbent upon the authorities to follow the procedure laid down in Section 47 of the Act and the relative rules. His Lordship Sinha J., however, did not consider the effect of the new amendment of the Motor Vehicles Act in 1956. But, even considering the amendment because of the different provision of the Motor Vehicles Act, pronouncement still holds that Section 57(8) as amended and Section 48(d)(iia) and the rules made thereunder do not change the position very much. In Sudhir Kumar Sadhu and Another Vs. Regional Transport Authority, Burdwan and Others, P.B. Mukharji J. held interpreting Section 57(8) of the Act that for the variation of the condition of the permit, Section 57(8) would have to be followed, that means, it must be treated as a new permit and all the conditions laid down in Section 57(1), (2) and (3) must be gone into before the variation of the permit is made. In Dilip Kumar Dutta v. Regional Transport Authority, Hooghly Supra it was similarly held in para. 9 as follows:

The next point that requires consideration is, whether the Regional Transport Authority was justified in not considering the objections filed on behalf of the Appellants. The learned trial Judge has held that the objection u/s 57(3) can only be about the suitability of the new Applicants. The said objection was not directed against that point. Therefore, according to the learned trial Judge, the Regional Transport Authority was justified in not considering the said objection. As mentioned hereinbefore it was further held that u/s 57 there cannot be any objection as to the granting of a new permit as such but that was precisely the objection that was raised by the Appellants. It is true that in a case where Section 47 had been complied with u/s 57(3) objection can be filed only with regard to the suitability of the candidates for the new permits, but where Section 47(3) has not been complied with, an existing operator can raise an objection in the petition filed pursuant to the notice issued inviting applications for new permits, pointing out the said fact to the Regional Transport Authority. Reliance may be made on the decision of the Madras High Court in the case of Director General Ordnance Factories Employees'' Association Vs. Union of India (UOI) and Director General Ordnance Factories, . Furthermore, it appears to us that the Regional Transport Authority in its resolution did not pass any order rejecting objection on the ground that it was not maintainable u/s 57 or on the other ground. In the affidavit-in-opposition, on behalf of the Regional Transport Authority, it has been stated that the said objection was not considered because the objection was filed by an association not recognized as required under the Act by the Regional Transport Authority. But, as mentioned hereinbefore, the objection was also signed by the individual bus operators. It is true that in the petition it has been stated that the said objection was filed ''through'' the association. That was subsequent to the tiling of the objection and cannot alter the nature of the objection. We are, therefore, of the opinion that the grounds upon which in the affidavit-in-opposition the Regional Transport Authority has sought to support non-consideration of the objection filed on behalf of the Appellant is not tenable. It was further pointed out by Mr. Roy Chowdhury, learned Advocate for the other Respondents, that the objection was not in time and form as required u/s 57. Again the Regional Transport Authority has not stated anywhere that it had rejected the objection of the Appellants on that ground. Furthermore, in view of the fact as we have found that there has been noncompliance with Section 47, it cannot be said that the objection was filed u/s 57 as without compliance with Section 47 of the Motor Vehicles Act, advertisement was issued and the existing bus operators were entitled to object to the granting of new permits and to have the objections determined on merits. Not having done that, in our opinion, the Regional Transport Authority acted in violation of the principles of natural justice.

In my view, therefore, the grant of the 8 additional permits in respect of an extended route cannot be supported and must be struck down.

Mr. Majumdar, however, contends that the Petitioners have no locus standi to come as the Petitioners did not object when the notice was given by the Regional Transport Authority and referred to the case of Director General Ordnance Factories Employees'' Association Vs. Union of India (UOI) and Director General Ordnance Factories, . From the objection given by the Association of Baduria Bus Syndicate it appears that the said objection was given by representative capacity for all the permit-holders who ply their buses on the route and it has been held in Sabitri Motor Service Ltd. Vs. Asansol Bus Association, that an unincorporated Bus Association can object to grant a permit u/s 57 of the Motor Vehicles Act. Mr. Majumdar referred to the case of Director-General, Ordnance Factories Employees Association (4). But, in my opinion, in view of the judgment of the Special Bench in Sabitri Motor Service Ltd. Vs. Asansol Bus Association, in respect of Motor Vehicles Act itself, the judgment relied upon by Mr. Majumdar has no application at all. Mr. Majumdar further refers to the case of Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, and contends that the Petitioner has no locus standi to come as in the said case the Supreme Court held that the Petitioner and the Respondents are all licensee of a Cinema and must stand the competition in business like any other business, but the said case is clearly distinguishable in the facts of the present case. In the facts of the present case, the Petitioners are operators of the route. They have a right to object to grant a new permit. They will be affected by the said grant and one of the conditions on which objection can be raised is an economic viability of the venture which has been undertaken by the Petitioners.

In my view, therefore, the Petitioner has the locus standi to maintain the application if the permit is granted in violation of the provision of the Motor Vehicles Act.

In the circumstances, therefore, the rule is made absolute.

There will be no order as to costs.

The Respondents, however, will be given liberty to take steps for grant of extension in accordance with law.