Sk. Shamsuddin vs State of West Bengal

Arun Kumar Dutta, J.—Both the contending parties are represented by their respective learned Advocates, who have been, heard at length. The matter was also heard on earlier dates. Hearing is closed.

By this writ application under Article 226 of the Constitution of India the writ Petitioner Sk. Samsuddin (hereinafter referred to as Petitioner) has prayed the Court for issue of ''a writ in the nature of mandamus commanding the Respondents their men. agents, servants, associates and each one of them not to give any effect and/or further effect and/or proceed any further with the impugned Memo., being No. 455-MV dated July 18, 1994, issued by the Secretary. Regional Transport Authority, Annexure ''E'' to this petition and further directing the Respondents to issue temporary permit in favour of the Petitioner forthwith, along with the other relief�s prayed for therein, for the reasons stated and on the grounds made out therein.

It is contended by the Petitioner that he was selected as an operator by the Regional Transport Authority, Howrah, (hereinafter referred to as R.T.A.) who had issued temporary permit (Puja Special) for one month in the route Howrah Railway Station to Bogs (Midnapore) on October 28, 1987. A second temporary permit (Puja Special) was again issued in his favour by the aforesaid authority for a period of one month on November 27, 1987. Since thereafter temporary permits had been granted in favour of the Petitioner by the said R.T.A. from December 30, 1987 till October 2, 1991. But on a writ application being filed by the owner of the vehicle in question a temporary permit had thereafter been issued by the R.T.A. in his (owner''s) favour under the order of the Court. On an appeal preferred by the Petitioner there against, the Appellate Court had directed the authority concerned to consider both the application for permit made by the Petitioner herein and the owner of the vehicle in question. Successive temporary permits had thereafter been granted to the Petitioner by the said R.T.A., upon due consideration, from January 16, 1992 till February 18, 1994, valid upto June 16, 1994. The Petitioner had filed an application u/s 80 of the Motor Vehicles Act, 1988 for Stage Carriage permit in respect of the route in question. He had eventually received a Memo., being No. 455-M.V. dated July 18, 1994, issued by the Secretary, Regional Transport Authority, Howrah, whereby he was informed that his application for temporary permit had been rejected by the Regional Transport Authority, Howrah, for the reasons stated therein. Hence the instant writ application for the relief�s prayed for.

The Petitioner, undeniably, had been operating in the route in question on the basis of temporary permits issued in his favour by the R.T.A., Howrah, from time to time, for October 1987 to June 16, 1994 with a gap for a certain period, in the circumstances indicated above. Even so, his application for permit u/s 80 of the Motor Vehicles Act has been rejected by the R.T.A., Howrah, by passing the impugned order dated July 18, 1994, being Annexure ''B'' to the writ application, stating as follows:

In reference to above this is to inform that the proposed route falls in the same alignment of. route Howrah to Digha which is a notified route u/s 100 of M.V. Act, 1988.

The length of the proposed Route is 148 KMS. Out of 148 k.m. 119 K.M. falls on the notified route Calcutta/ Howrah to Digha.

(a) As per Notification No. 12790-WT/88 dated September 15, 1988 the route Calcutta/Howrah to Digha is totally excluded from other operators than the C.S.T.C.

(b) As Section 104 of the M.V. Act, 1988 where a scheme has been published u/s under Section (3) of Section 100 in respect of any notified area or notified route, the STA or the RTA as the case may be shall not grant any permit except in accordance with the provision of the scheme ....

(c) S.T.A. vide No. 1577/STA dated April 13, 1994 directed R.T.A. Howrah not to cover by a scheme published u/s 100 of the M.V. Act, 1988 and in cases of Route which are mainly aligned with the Calcutta Digha route, the issuance of permits should also be stopped.

So, his prayer for T.P. is disallowed.

It appears from Annexure ''F'' to the writ application that by notification No. 12788-WT/4B-5/88 dated September 15, 1988, issued by the Transport Department of the Government of West Bengal, Digha-Howrah (via Contain, Norghat, Mecheda) route was notified u/s 68D of the Motor Vehicles Act, 1939, then in force, on the following approved scheme:

The State Transport Undertaking carried on by the South Bengal State Transport Corporation, (erstwhile Durgapur State Transport Corporation) shall, for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, operate and run in the public interest passenger stage carriage service in relation to the areas and routes, particulars whereof are specified below, to the partial exclusion of other persons.

And, by notification No. 12790-WT/88-10/88 dated September 15, 1988 by the State Government Calcutta/ Howrah-Digha (Via Kuleghat, Mecheda, Norghat etc.) route was notified under the aforesaid Act on the following approved scheme:

The State Transport Undertaking, carried on by the Calcutta State Transport Corporation, shall, for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, operate and run in the public interest passenger stage carriage service in relation to the areas and route, particulars whereof are specified below, to the total exclusion of other operators.

The Petitioner''s prayer for temporary permit appears to have been rejected by the R.T.A., Howrah, mainly on the ground that a major portion of the route Howrah Railway Station to Bogs (Midnapur) falls within the alignment of the route Calcutta/Howrah-Digha, which is a notified route.

It, however, appears from the Annexure ''G'' to the writ application that notwithstanding the fact that Calcutta/Howrah-Digha route was notified u/s 68D of the aforesaid Act of 1939, an Order, being No. 6932-WT/8B-10/88 dated June 14, 1989, was passed by the Transport Department, Government of West Bengal u/s 68 FF directing R.T.A., Calcutta Region, Howrah, Midnapore to grant temporary permit in respect of such routes for a period not exceeding four months to secure or maintain the adequacy of such services in such routes (excepting the route Calcutta/Howrah-Digha) which may cross or overlap the notified routes as were in existence on September 15, 1988, as the Calcutta State Transport Corporation and the South Bengal State Transport Corporation were unable to provide adequate Road Transport Services for the carriage of passengers in respect of the local/intra-regional/inter regional routes of the districts of Howrah, Midnapore-Calcutta region respectively (excepting the notified routes).

And, by a subsequent order, being No. 11000-WT/ 8B-10/88 dated September 18, 1989, the Transport Department of the Government of West Bengal had modified the Scheme published by notification No. 12790-WT/8B-10/88 dated September 15, 1988 under the relevant provisions of the aforesaid Act "in the greater interest of the public to the extent that notwithstanding the said Scheme published u/s 68D(2) of the M.V. Act, 1939 the Regional Transport Authority, Howrah and the Regional Transport Authority, Midnapore and the Director, Public Vehicle Department, Calcutta or the Regional Transport Authority, Calcutta, 24-Parganas - may grant Temporary or Permanent permits in respect of such area or routes within the respective District/Region of Howrah/Midnapore/Calcutta and 24-Parganas in respect of services in the interregional routes to other persons such number of stage carriage permit to secure or maintain the adequacy of such services in such area or permits which may touch or overlap the notified routes and also in such approved existing inter-regional routes excepting Howrah-Digha, Calcutta-Digha which were in existence as on September 15, 1988 and were being maintains under permanent or temporary permit such number of permits so as not to exceed the approved vacancy as on September 15, 1988." The bar of four months under the aforesaid earlier order dated June 14, 1989 had been withdrawn by the aforesaid Order dated September 18, 1989.

The Petitioner, undeniably, had been operating in the route in question on September 15, 1988. He clearly is very much covered by the aforesaid modified schemes under the aforesaid relevant orders dated June 14, 1989 and September 18, 1989. There could, there-fore, be little justification for the R.T.A., Howrah, to refuse to grant Temporary Permit to him for the route in question merely on the ground that a major portion of the route falls within the alignment of the route Calcutta/Howrah-Digha, which was a notified route. The State Transport Authority could neither conceivably have directed the R.T.A., Howrah, to stop issuance of permit to the Petitioner under order No. 1577/S.T.A. dated April 13, 1994, as stated in Clause (c) of the impugned order dated July 18, 1994 passed by the R.T.A., Howrah, on the ground that the route in question is mainly aligned with the Calcutta-Digha route, even though the Petitioner is covered by the aforesaid modified scheme in violation of the Government directions under the aforesaid orders dated June 14, 1989 and August 18, 1989. The State Transport Authority is competent to issue directions u/s 68(3) of the Motor Vehicles Act, 1988 for giving effect to the Government decisions/directions, and not to issue any direction to the contrary.

It may be noted in this context that Supreme Court in Adarshi Travels Bus Services v. State of I.S.P. 1985 (4) S.C.C. 577 had observed that if there was any need for protecting the traveling public from inconvenience, because of exclusion of private operators from any notified route, the State Transport authorities and the Government would make sufficient provisions in the scheme itself to avoid such inconvenience being caused to the traveling public. This is precisely of what has been done by the State Government neither the aforesaid order dated June 14, 1989 and September 18, 1989 whereby the private Operators, as existing on September 15, 1988, have been allowed to continue to operate their vehicles on the various routes crossing or overlapping the notified route.

In the aforesaid circumstances, it was incompetent to the R.T.A., Howrah, to refuse to grant temporary permit to the Petitioner for the route in question merely on the ground that a major portion of the route in question, Howrah Railway Station to Boga, falls within the alignment of the route Calcutta-Howrah to Digha, which is a notified route.

A point has also been taken by the Petitioner that even though Calcutta/Howrah-Digha route is a notified route several operators have been granted permit in respect of the said route by the R.T.A., Howrah and he is sought to be discriminated against for reasons best known to the said authority. The Annexure ''H'' to the writ application appears to be a list in support of the Petitioner''s aforesaid contention. The Annexure ''I'' & ''J'' to the writ application, being extract copies of the proceedings of the Joint meeting of the R.T.A., Howrah & Midnapore, held on May 16, 1992 would further seem to make clear that the matter regarding adjustment of excess seven permits issued by the R.T.A., Howrah was discussed therein; and it was resolved that the permits be adjusted by the R.T.A., Midnapore in the manner indicated therein and that the two R.T.A.s unanimously decided to create new routes as shown therein, subject to approval of the S.T.A., West Bengal. That being so, there could neither be any justification for rejecting the Petitioner''s prayer for temporary permit in respect of the route in question on the grounds indicated in the impugned order dated July 18, 1994.

That apart, it appears from the Annexure ''K'' to the writ application that on a writ application filed by one Milan Kr. Puri on similar facts, Altamas Kabir, J. by his order dated April 6, 1994 had held that the Petitioner''s case must be considered within the ambit and scope of the relevant Government order dated June 14, 1989 passed by the Transport Department, Government of West Bengal, for the reasons discussed therein. On appeal preferred against the said order dated April 6, 1994, the Division Bench, in F.M.A.T. No. 1141 of 1994 did not interfere with the order so passed by Altamas Kabir, J., and by order dated April 21, 1994 had merely supplied the omission in the order of the Trial by recording that the order under challenge before the learned trial Judge, being Annexure ''B'' to the application for stay, stood quashed. On my query, I had been told by the learned Advocate for the State/Respondents that no appeal had been preferred by them against the aforesaid order. The State Authorities clearly, therefore, had submitted to and accepted the aforesaid order dated April 6, 1994 passed by Altamas Kabir, J. in the aforesaid matter. It was not, therefore, be open to the State Respondents, more particularly the R.T.A., Howrah, to reject the Petitioner''s prayer for temporary permit in respect of the route in question merely on the ground that a major portion thereof falls within the alignment of the route Calcutta/Howrah-Digha, which is a notified route.

In the premises above, the impugned order dated July 18, 1-994, being annexure ''B'' to the writ application, be hereby quashed. The Respondents, more particularly the R.T.A., Howrah, are/is directed to consider the writ Petitioner''s prayer for Temporary permit in respect of the route in question, Howrah Railway Station to Boga, and dispose of his application therefore in the light of and within the ambit and scope of the aforesaid orders dated June.14, 1989 and September 18, 1989 passed by the Transport Department, Government of West Bengal, after giving him (Petitioner) reasonable opportunity of being heard in the matter, by recording a reasoned order, within two months from the date of communication of this order.

The learned Advocate for the Respondents undertakes to communicate this order of the Court to them (Respondents) within one week from date.

The writ application is accordingly disposed of without any order as to costs.