Shyamal kumar Ghosh vs State Transport Authority, West Bengal

Bhagabati Prasad Banerjee, J.—This writ application has been assigned to us by the learned Chief Justice as a learned Single Judge of this Court referred this writ application for disposal by a Division Bench of this Court in view of two conflicting decisions on the question whether the congestion of traffic is a ground of refusal to issue permit by the Permit Granting Authority or not. Ajoy Nath Ray J. by his judgment dated June 1.1, 1993., in the case of Gouranga Barik v. State of West Bengal 1993 (2) C.L.J. 229 have held that congestion of traffic, which was often a ground of refusal resorted to by the Permit Granting Authority can no longer be resorted to Ajoy Nath Ray J. extensively dealt with the various provisions of the Motor Vehicles Act, 1988, particularly Sections 80 and 71(3) and other provisions of the said Act and also considered the effect of judgment of the Supreme Court in Mithilesh Garg, Vs. Union of India and others etc. etc., After considering the various provisions of the Act and the base laws on the subject Ajoy Nath Ray J. came to the conclusion that congestion of traffic was not a ground on which a permit could be refused by the State Transport Authority under the provisions of the Motor Vehicles Act, 1988.

Mr. Ashoke Dey, learned Counsel appearing on behalf of the Petitioner, submitted that in the instant case the permit was refused solely on the ground that Calcutta terminal point is very much congested and there is no further scope to accommodate any vehicle to have its terminal facility at Calcutta Mr. Dey relying upon the decision in Gouranga Bank''s case (Supra) submitted that under the Act there was no scope for rejection of the permit on the ground. Mr. Dey also drew our attention to another judgment dated August 19, 1993, passed by Kalyanmoy Ganguli J. (as His Lordship then was) in. Matter No. 2141 of 1993 wherein a contrary view had been taken. Because of conflict of decisions of the learned two Judges the matter has been referred to this Division-Bench. Mr. Dey pointed out that the judgment of the learned Single Judge in Gouranga Bank''s case delivered by Ajoy Nath Ray J. had already been affirmed by a Division Bench of this Court presided over by. the Hon''ble Umesh Chandra Banerjee J. sitting with the Hon''ble Bijitendra Mohan Mitra J. on December 7, 1993, in the case of State Transport Authority v. Gouranga, Barik and Ors. Decided by Umesh Chandra Banerjee and Bijitendra Nath Mitra JJ. on December 7, 1993 It is submitted by Mr. Dey that as the Gouranga Bank''s case had been'' affirmed in appeal on an appeal preferred by the State Transport-Authority, West Bengal, it must be held that there was no conflict of decision between two learned Single Judges because of affirming the decision of Gouranga Bank''s case by a Division Bench of this Court. Section 71(3) of the Motor Vehicles Act, 1988, has taken care of a situation where there may be congestion and for that purpose it has been provided that the State Government shall, if so directed by the Central Government having regard to the number of vehicles, road conditions and other relevant matters, by notification in the Official Gazette direct the State Transport Authority and the Regional Transport Authority to limit the number of stage carriage general* or any particular type, as may be fixed and specified in the notification operating on city routes in towns with a population of not less than five lacs. But in the instant case there has been no such notification in accordance with Section 71(3)(a) of the said Act and, accordingly, that is specifically provided by the statute could not be resorted to by the RTA as its implied power. It is only when a notification is issued considering the congestion of particular route, in that event, the STA or the RTA have jurisdiction to reject an application for a stage carriage permit on any route on the ground that the route, is congested and there is no scope for grant of any further permit in view of the limitation already imposed by the notification in question. Statutory powers had to be exercised strictly in accordance with the statute and when the statute provides a provision for limiting a number of permits on a particular route in the case of congestion on the basis of notification issued by the authorities concerned, in that event, the authority concerned have to act according to that and not otherwise.

Accordingly, we are in agreement with the view expressed by Ajoy Nath Ray J. in Gouranga Bank''s case ( Supra), which has already been affirmed by the other Division Bench of this Court on an appeal from that judgment in the case of State Transport Authority v. Gouranga Barik (Supra). We have disclosed some reasons for our agreement in the matter in view of the fact that the order of the Division Bench in that appeal has not disclosed the reason and/or the grounds for affordance in detail.

In view of the above, the order of the State Transport Authority, West Bengal, dated April 22, 1993, rejecting the application of Shyamal Kumar Ghosh for temporary permit/permanent permit on the route Kotalapur to Esplanade is set aside and the Respondents are directed not to give effect and/or further offence and to proceed any further of the said decision adopted in the meeting of S.T.A. held on February 15, 1993, and shall grant permanent permit in accordance with law within six weeks from date. This order we are passing, as the only ground for refusal of the permit held could not be resorted to by the State Transport Authority in view of the judgment of the other Division Bench and by us.

All parties concerned are to act on a signed Xerox copy of this judgment and order on the usual undertaking.

Nikhil Nath Bhattacharjee, J.

I agree.