Sekhar Chatterjee, Achyutanonda Chatterjee vs Abdur Rahim Mondal and Others

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 and Ors. v. State of West Bengal and Ors.] 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.

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.

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.

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 entertain and consider the applications filed by the appellants for grant of Stage Carriage Permits for the aforesaid inter-regional route, Nabadwip to Burdwan.

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.

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 and Ors.;

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 and Ors.);

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 and Ors. v. State of West Bengal and Ors.

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, Vs. Union of India and others etc. etc., , were entitled to maintain a writ petition under Article 226 of the Constitution of India.

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 16th 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 17.7.2008.

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 Bengal and Ors. 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 and Ors. v. State of West Bengal and Ors. 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.

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 u/s 68 of the Central Act. He had also submitted that by a subsequent notification dated 9th November, 2006 the earlier notification dated 16th 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.

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.

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.

Being aggrieved, the appellants have filed this appeal.

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 80. Procedure in applying for and granting permits.- granting permits.-

(1) An application for a contract carriage permit or a private carriers (1) An aPplication for a Permit of an permit may be made at any time. kind may be made at any time.

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

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.

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, Vs. Union of India and others etc. etc., , 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 reason 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 and Others Vs. State of Haryana and Others, , 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)

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.

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.

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-155/2005 Date-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 and Ors.)

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 coordination 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:

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,

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 u/s 68(3)(ca) or u/s 99 of the Motor Vehicles Act, 1988 or in any other case,

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)

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 4th and 5th 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 refused. 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 u/s 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 u/s 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 coordinate 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 u/s 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.

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 s 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 Secretary to Government and Others Vs. Peekay Re-Rolling Mills (P) Ltd., .

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 u/s 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 and Others Vs. Shri Noor Mohammad, . 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:

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 Vs. State Transport Authority, Gwalior and Others, 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 and Ors. 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)

For the foregoing 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.

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