State Transport Authority, W.B. and Others Vs. Asis Kumar Roy and Others - Court Judgment

Excerpt:
- orderarun kumar dutta, j.1. this appeal is directed against the order dated 20th january, 1994 passed by a learned single judge of this court in c.o. no. 12381 (w) of1993 before him on the grounds made out therein.2. by filing the relevant writ application, the writ petitioner asis kumar roy (hereinafter referred to as the petitioner) had prayed the court for, amongst other reliefs, a writ in the nature of mandamus commanding the respondents to issue and grant one permanent stage carriage permit fo'r the route siliguri to calcutta on the basis of the application for permanent stage carriage permit (annexure-'a' to the petition) forthwith for the reasons stated and on the grounds made out therein.3. the learned trial judge by his aforesaid impugned order dated 20th january,1994 has been pleased to dispose of the matter by directing the state transport authority, west bengal (hereinafter referred to as s.t.a.) to issue offer letter to the petitioner for permanent stage carriage permit for the route in question in terms thereof for the reasons recorded therein.4. being aggrieved by the order so passed by the learned trial judge, the respondents/ opposite parties nos. 2 and 3 in the writ application has filed the instant appeal.5. the point for consideration here before us is how far the learned trial judge was justified in passing the aforesaid impugned order, the way he did.6. the facts, as are relevant for the present purpose, may shortly be set out as follows for answering the point posed :--the petitioner had made an application for permanent stage carriage permit for the routecalcutta to siliguri before the authority concerned on 20th july, 1992. on the failure of the s.t.a. to consider the same, the petitioner had moved a writ application before this court on 24th september, 1992. altamas kabir, j. by order dated 24th september, 1992 had disposed of the said writ application by directing the s.t.a. to consider and dispose of the petitioner's application in accordance with the provisions of s. 80 of the motor vehicles act, 1988 within a period of two months from the date of communication of the order. the said order was duly communicated to the respondents in the writ application by the learned advocate for the petitioner by letterdated 16th november, 1992, which was received by them on 18th november, 1992. but despite communication of the aforesaid order of the court dated 24th september, 1992, the s.t.a. had failed and neglected to act in terms thereof. the learned advocate for the petitioner had thereupon written a letter dated 24th may, 1993 addressed to the respondents for acting, in terms of the aforesaid order, mentioning therein that in default of such consideration an application for contempt would be moved before this court. but even so no action was taken by it, and the aforesaid order dated 24th september, 1992 was not acted upon.7. the petitioner had, in the aforesaid circumstances, been constrained to file the second writ petition before this court challenging the non-consideration of his application by the respondents despite the aforesaid order of the court dated 24th september,1992. a copy of the writ petition was served in the office of the legal remembrancer, west bengal, on 19th august, 1993. the s.t.a. had thereafter by letter dated 6th september, 1993 had requested the petitioner to appear for hearing and disposal of his application for grant of permanent permit in its meeting scheduled to be held on 17th september,1993. the learned judge in the aforesaid second writ application, which appeared in the list on 16th september, 1993, had passed an order to the effect that the petitioner may appear before the s.t.a. in terms of the notice dated 6th september, 1993 without prejudice to his rights and contentions. thepetitioner was, accordingly, represented during the hearing before the s.t.a. on 17th september, 1993 by his learned advocate, who had made the relevant submissions on his behalf. but despite such hearing on 17th september, 1993, the result thereof had not been communicated to the petitioner and the aforesaid second writ application before the court was kept pending to the knowledge of the respondents inasmuch as the aforesaid order dated 16th september, 1993 was passed in presence of the learned advocates appearing for the respondents in the writ application. the petitioner had also made an application on 30th september, 1993 for issue of urgent certified copy of the resolution dated 17th september, 1993, which had neither been issued to him.8. the second writ application had thereafter been taken up for hearing by a learned single judge of this court on 20th april, 1994. after hearing the submissions of the learned advocates appearing for the parties, the learned judge was pleased to dispose of the (second) writ application by his aforesaid impugned order dated 20th january, 1994 directing the s.t.a. to issue offer letter to the petitioner for grant of permanent stage carriage permit for the aforesaid route within four weeks from the date of communication of the order.9. it is contended by the petitioner-respondent that the aforesaid impugned order of the court was communicated to the respondent-authorities by his learned advocate by letter dated 29th january, 1994. the office of the s.t.a. by letter dated 12th january, 1994 had communicated an extract of the resolution of the s.t.a. dated 17th september, 1993, received by the petitioner on 8th february, 1994.10. as already indicated, the petitioner's application made on 20th july, 1992 for permanent stage carriage permit for the route in question not having been considered, he had to file a writ application before this court. a learned single judge of this court by order dated 24th september, 1992 had disposed of the same by directing the s.t.a. to consider and dispose of the same in accordance with the provisions of s. 80 of the motor vehicles act within a period of two months from the date of communication of the order. the said order is stated to have been communicated to the s.t.a. on 16th november, 1992. but the latter having failed and neglected to act in terms of the order, the learned advocate for the petitioner by letter dated 24th may, 1993 had asked the respondents for acting in terms of the aforesaid order, mentioning therein that in default of such consideration an application for contempt would be moved before this court. but even thereafter the s.t.a. had pointedly faired, neglected and ignored to comply with the said order. the petitioner had, accordingly, been constrained to file the second writ application before this court on 20th august, 1993, copy of which had been served upon the legal remembrancer, west bengal. it was only then that the conscience of the s.t.a. had been shaken, and by letter dated 6th september, 1993 the s.t.a. had requested the petitioner to appear for hearing and disposal of his application for grant of permanent permit in its meeting scheduled to be held on 17th september, 1993. the petitioner was duly represented by his learned advocate in the said meeting. but the result of the said meeting had not been communicated to the petitioner. he had eventually made an application on 30th september, 1993 for issue of urgent certified copy of the resolution dated 17th september, 1993, which was neither issued to him. in the aforesaid circumstances, the learned judge by his impugned order dated 20th january, 1994 had been constrained to dispose of the second writ application by directing the s.t.a., west bengal, to issue offer letter to the writ petitioner within a period of four weeks from the communication of the said order for grant of permanent stage carriage permit to him for the route in question. the s.t.a., west bengal, is slated to have communicated an extract of the resolution dated 17th september, 1993 by a letter dated 12th january, 1994 to the petitioner, which was received by him on 8th february, 1994 after the disposal of the aforesaid second writ application. it would seem significant and observable to note thateven though the respondents were aware of the pendency of the second writ application before this court, the court was neither intimated about the resolution of the meeting dated 17th september, 1993 when the writ application was taken up for hearing and disposal on 20th january, 1994. the petitioner's contention that the said letter is a back-dated one to nullify the impugned order dated 20th january, 1994 cannot, therefore, be lightly discarded.11. the aforesaid undisputed facts clearly present an unedifying spectacle about the manner in which the s.t.a. had functioned utterly deplorable, painfully disappointing and positively disgusting, which cannot but earn frown from the court.12. the government authorities are expected to act with promptitude and fairness. the case before us is a glaring example of sad departure from the said principle. it further appears from the order dated 20th april, 1994 herein that it was contended on behalf of the s.t.a. during the hearing of the stay application that since the route in question is a notified route, the question of grant of permit for the notified route does not and could not clearly arise. it had been observed in the said order that surprisingly, however, despite the relevant notification, the s.t.a. did not feel shy in granting permits after permits to operators without any hesitation; and it had taken shelter of the relevant notification only when it was needed for defeating the claim of someone else. the learned judges had observed in the said order that such attitude of the s.t.a. was neither understandable, nor could be appreciated.13. it would again oddly appear from the said order that it had been submitted on behalf of some of the operators that the valid rights of their clients would be infringed by the aforesaid impugned order. it was contended on their behalf that if further buses are allowed to be plied on the route, their business would be extremely uneconomical and they would suffer great prejudice. relying uponthe decision of the supreme court in mithilesh garg v. union of india, : air1992sc443 , the learned judges were of the view that mere financial inconvenience or the route becoming otherwise slightly uneconomical cannot be a ground for challenging the issuance of a permit granted by a writ court in favour of a third party. the hon'ble judges had reproduced paragraph 7 of the aforesaid decision which runs as follows:--'the petitioners are existing stage-carriage operators on different routes. they hold permits granted by the regional transport authorities concerned. mithilesh garg, petitioner in civil writ petition no. 1345 of 1989 has stated that he holds a stage carriage permit and plies his vehicles on the meerut-parikshitgarh-hasifabad-lal-iana and allied routes under the jurisdiction of the regional transport authority, meerut, according to him prior to the enforcement of the act. 23 permit-holders were operating on the said route but thereafter under s. 80 of the act, the regional transport authority, meerut, has issued 272 more permits in respect of the same route. similar facts have been stated in the other writ petitions. as mentioned above the petitioners are permit-holders and are existing operators. they are plying their vehicles on the routes assigned to them under the permits. they are in the full enjoyment of their fundamental rights guaranteed to them under art. 19(1)(g) of the constitution of india. there is no threat of any kind whatsoever from any authority to the enjoyment of their right to carry on the occupation of transport operators. there is no complaint of infringement of any of their statutory rights. their only effort is to stop the new operators from coming in the field as competitors. we see no justification in the petitioners' stand. more operators mean healthy competition and efficient transport system. over-crowded buses, passengers standing in aisle, clinging to the bus doors and even sitting on the roof tops are some of the common sights in this country. more often, one finds a bus which has noisy engine, old upholstry, uncomfortable seats and continuous emission of black smoke from the exhaust pipe. it is, therefore, necessary that there should be plenty of operators on every route to provide ample choice to the commuter-public to board the vehicle of their choice and patronize the operator who is providing the best service. even otherwise the liberal policy is likely to help in the elimination of corruption and favouritism in the process of granting permits. restricted licensing under the old act led to the concentration of business in the hands of few persons thereby giving rise to a kind of monopoly, adversely affecting the public interest. the apprehensions of the petitioners, that too many operators on a route are likely to affect adversely the interest of weaker section of the profession is without any basis. the transport business is bound to be ironed out ultimately by the rationale of demand and supply. cost of a vehicle being, as it is, the business requires huge investment. the intending operators are likely to be conscious of the economics underlying the profession. only such number of vehicles would finally remain in operation on a particular route as are economically viable. in any case the transport system in a state is meant for the benefit and convenience of the public. the policy to grant permits liberally under the act is directed towards the said goal. the petitioners who are already in the business want to keep the fresh entrants out of it, and as such eliminate the healthy competition which is necessary to bring efficiency in the trade.'14. their lordships of the supreme court had further observed in the said decision as follows (para 6 of air):--'the parliament in its wisdom has completely effaced the above features. the scheme envisaged under sections 47 and 57 of the old act has been completely done away with by the act. the right of existing operators to file objections and the provision to impose limit on the number of permits have been taken away. there is no similar provision to that of section47 and section 57 under the act. thestatement of objects and reasons of the act shows that the purpose of bringing in the act was to liberalise the grant of permit. section 71(1) of the act provides that while considering an application for a stage-carriage permit the regional transport authority shall have regard to the objects of the act. section 80(2), which is the harbinger of liberalisation, provides that a regional transport authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under the act. there is no provision under the act like that of section 47(3) of the old act, and as such no limit for the grant of permits can be fixed under the act. there is, however, a provision under section 71(3)(a) of the act under which a limit can be fixed for the grant of permits in respect of the routes which are within a town having population of more than five lakhs.'15. as noted, section 71(1) of the act provides that while considering an application for a permanent stage carriage permit the regional transport authority shall have regard to the objects of the act. and, section 80(2) further provides that a regional transport authority shall not ordinarily refuse to grant an application for permit of any kind may at any time under the act. the aforesaid provisions of the act being, what they are, there could be little mistaking that grant of permit should be the rule and refusal to grant permit should be the exception. even so, the s.t.a. appears to have refused to grant permit to the writ petitioner for a permanent stage carriage permit for the route in question, communicated to the petitioner on 8th february, 1994 after the passing of the impugned order dated 20th january, 1994. the learned advocate for the appellants had produced the relevant office file in connection with the relevant matter for our perusal, but the resolution dated 17th september, 1993 could not be found therein. there is no knowing why the permit, sought for by the petitioner, has not been granted to the petitioner. in the facts and circumstances indicated above, the learned judge does notseem to us to have erred in passing the impugned order, he did.16. realising the difficulty somewhat tardily, the learned advocate for the appellants had urged that the high court in exercise of its writ jurisdiction could not direct issuance of a permit. but to that we would like to note with a minute of dissent and refer to the following observations of the supreme court in the comptroller and auditor general of india, gian prakash, new delhi v. k. s. jagannathan, : [1986]2scr17 :--'there is thus no doubt that the high courts in india exercising their jurisdiction under article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. in all such cases and in any other fit and proper case a high court can in the exercise of its jurisdiction under article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion.'17. following the aforesaid decision of the supreme court, a division bench of this court in satyendra nath mondal v. hindusthan petroleum corporation ltd.. 1994) 1cal lt (hc) 184, had directed the hindusthan petroleum corporation ltd. to offer the writ petitioner (therein) relail outlet dealership (in question) for the reasons discussed therein. if would also appear from the aforesaid decision that a division bench of the patna high court in c. w. j. c. no. 7686 of 1989 with m. j.c. no. 784 of 1991 had also directed the bharat petroleum corporation ltd. to appoint the second candidate in the merit list as distributor at purnea in terms thereof as the first candidate in the merit list was not found to be eligible for the dealership in question. it would further appear therefrom that the supreme court was not inclined to interfere with the aforesaid order passed by the patna high court.18. in view of the facts and circumstances of the matter discussed above and the decisions hereinbefore referred to, the learned trial judge seems to us to have been perfectly justified in directing the state transport authority, west bengal, to issue offer letter to the writ petitioner for grant of permanent stage carriage permit for the route in question within four weeks from the date of communication of the order by passing the impugned order dated 20th january, 1994, which order should have been passed by it (s.t.a.) had it properly and lawfully exercised the discretion conferred upon it by the statute, as indicated above. we, therefore, find nothing to interfere with the impugned order passed by the learned trial judge. there seems little substance in the appeal as such.19. in the result, the appeal fails and is dismissed with costs. the impugned order of the court below dated 20th january, 1994 be hereby confirmed.prabir kumar majumdar, j. 20. i agree.

Judgment:
ORDER

Arun Kumar Dutta, J.

1. This appeal is directed against the order dated 20th January, 1994 passed by a learned single Judge of this Court in C.O. No. 12381 (W) of1993 before him on the grounds made out therein.

2. By filing the relevant writ application, the writ petitioner Asis Kumar Roy (hereinafter referred to as the petitioner) had prayed the Court for, amongst other reliefs, a writ in the nature of mandamus commanding the respondents to issue and grant one permanent stage carriage permit fo'r the route Siliguri to Calcutta on the basis of the application for permanent stage carriage permit (Annexure-'A' to the petition) forthwith for the reasons stated and on the grounds made out therein.

3. The learned Trial Judge by his aforesaid impugned order dated 20th January,1994 has been pleased to dispose of the matter by directing the State Transport Authority, West Bengal (hereinafter referred to as S.T.A.) to issue offer letter to the petitioner for permanent stage carriage permit for the route in question in terms thereof for the reasons recorded therein.

4. Being aggrieved by the order so passed by the learned Trial Judge, the respondents/ opposite parties Nos. 2 and 3 in the writ application has filed the instant appeal.

5. The point for consideration here before us is how far the learned Trial Judge was justified in passing the aforesaid impugned order, the way he did.

6. The facts, as are relevant for the present purpose, may shortly be set out as follows for answering the point posed :--

The petitioner had made an application for permanent stage carriage permit for the routeCalcutta to Siliguri before the Authority concerned on 20th July, 1992. On the failure of the S.T.A. to consider the same, the petitioner had moved a writ application before this Court on 24th September, 1992. Altamas Kabir, J. by order dated 24th September, 1992 had disposed of the said writ application by directing the S.T.A. to consider and dispose of the petitioner's application in accordance with the provisions of S. 80 of the Motor Vehicles Act, 1988 within a period of two months from the date of communication of the order. The said order was duly communicated to the respondents in the writ application by the learned Advocate for the petitioner by letterdated 16th November, 1992, which was received by them on 18th November, 1992. But despite communication of the aforesaid order of the Court dated 24th September, 1992, the S.T.A. had failed and neglected to act in terms thereof. The learned Advocate for the petitioner had thereupon written a letter dated 24th May, 1993 addressed to the respondents for acting, in terms of the aforesaid order, mentioning therein that in default of such consideration an application for contempt would be moved before this Court. But even so no action was taken by it, and the aforesaid order dated 24th September, 1992 was not acted upon.

7. The petitioner had, in the aforesaid circumstances, been constrained to file the second writ petition before this Court challenging the non-consideration of his application by the respondents despite the aforesaid order of the Court dated 24th September,1992. A copy of the writ petition was served in the office of the legal remembrancer, West Bengal, on 19th August, 1993. The S.T.A. had thereafter by letter dated 6th September, 1993 had requested the petitioner to appear for hearing and disposal of his application for grant of permanent permit in its meeting scheduled to be held on 17th September,1993. The learned Judge in the aforesaid second writ application, which appeared in the list on 16th September, 1993, had passed an order to the effect that the petitioner may appear before the S.T.A. in terms of the notice dated 6th September, 1993 without prejudice to his rights and contentions. Thepetitioner was, accordingly, represented during the hearing before the S.T.A. on 17th September, 1993 by his learned Advocate, who had made the relevant submissions on his behalf. But despite such hearing on 17th September, 1993, the result thereof had not been communicated to the petitioner and the aforesaid second writ application before the Court was kept pending to the knowledge of the respondents inasmuch as the aforesaid order dated 16th September, 1993 was passed in presence of the learned Advocates appearing for the respondents in the writ application. The petitioner had also made an application on 30th September, 1993 for issue of urgent certified copy of the resolution dated 17th September, 1993, which had neither been issued to him.

8. The second writ application had thereafter been taken up for hearing by a learned single Judge of this Court on 20th April, 1994. After hearing the submissions of the learned Advocates appearing for the parties, the learned Judge was pleased to dispose of the (second) writ application by his aforesaid impugned order dated 20th January, 1994 directing the S.T.A. to issue offer letter to the petitioner for grant of permanent stage carriage permit for the aforesaid route within four weeks from the date of communication of the order.

9. It is contended by the petitioner-respondent that the aforesaid impugned order of the Court was communicated to the respondent-authorities by his learned Advocate by letter dated 29th January, 1994. The office of the S.T.A. by letter dated 12th January, 1994 had communicated an extract of the resolution of the S.T.A. dated 17th September, 1993, received by the petitioner on 8th February, 1994.

10. As already indicated, the petitioner's application made on 20th July, 1992 for permanent stage carriage permit for the route in question not having been considered, he had to file a writ application before this Court. A learned single Judge of this Court by order dated 24th September, 1992 had disposed of the same by directing the S.T.A. to consider and dispose of the same in accordance with the provisions of S. 80 of the Motor Vehicles Act within a period of two months from the date of communication of the order. The said order is stated to have been communicated to the S.T.A. on 16th November, 1992. But the latter having failed and neglected to act in terms of the order, the learned Advocate for the petitioner by letter dated 24th May, 1993 had asked the respondents for acting in terms of the aforesaid order, mentioning therein that in default of such consideration an application for contempt would be moved before this Court. But even thereafter the S.T.A. had pointedly faired, neglected and ignored to comply with the said order. The petitioner had, accordingly, been constrained to file the second writ application before this Court on 20th August, 1993, copy of which had been served upon the legal remembrancer, West Bengal. It was only then that the conscience of the S.T.A. had been shaken, and by letter dated 6th September, 1993 the S.T.A. had requested the petitioner to appear for hearing and disposal of his application for grant of permanent permit in its meeting scheduled to be held on 17th September, 1993. The petitioner was duly represented by his learned Advocate in the said meeting. But the result of the said meeting had not been communicated to the petitioner. He had eventually made an application on 30th September, 1993 for issue of urgent certified copy of the resolution dated 17th September, 1993, which was neither issued to him. In the aforesaid circumstances, the learned Judge by his impugned order dated 20th January, 1994 had been constrained to dispose of the second writ application by directing the S.T.A., West Bengal, to issue offer letter to the writ petitioner within a period of four weeks from the communication of the said order for grant of permanent stage carriage permit to him for the route in question. The S.T.A., West Bengal, is slated to have communicated an extract of the resolution dated 17th September, 1993 by a letter dated 12th January, 1994 to the petitioner, which was received by him on 8th February, 1994 after the disposal of the aforesaid second writ application. It would seem significant and observable to note thateven though the respondents were aware of the pendency of the second writ application before this Court, the Court was neither intimated about the resolution of the Meeting dated 17th September, 1993 when the writ application was taken up for hearing and disposal on 20th January, 1994. The petitioner's contention that the said letter is a back-dated one to nullify the impugned order dated 20th January, 1994 cannot, therefore, be lightly discarded.

11. The aforesaid undisputed facts clearly present an unedifying spectacle about the manner in which the S.T.A. had functioned utterly deplorable, painfully disappointing and positively disgusting, which cannot but earn frown from the Court.

12. The Government authorities are expected to act with promptitude and fairness. The case before us is a glaring example of sad departure from the said principle. It further appears from the order dated 20th April, 1994 herein that it was contended on behalf of the S.T.A. during the hearing of the stay application that since the route in question is a notified route, the question of grant of permit for the notified route does not and could not clearly arise. It had been observed in the said order that surprisingly, however, despite the relevant notification, the S.T.A. did not feel shy in granting permits after permits to operators without any hesitation; and it had taken shelter of the relevant notification only when it was needed for defeating the claim of someone else. The learned Judges had observed in the said order that such attitude of the S.T.A. was neither understandable, nor could be appreciated.

13. It would again oddly appear from the said order that it had been submitted on behalf of some of the operators that the valid rights of their clients would be infringed by the aforesaid impugned order. It was contended on their behalf that if further buses are allowed to be plied on the route, their business would be extremely uneconomical and they would suffer great prejudice. Relying uponthe decision of the Supreme Court in Mithilesh Garg v. Union of India, : AIR1992SC443 , the learned Judges were of the view that mere financial inconvenience or the route becoming otherwise slightly uneconomical cannot be a ground for challenging the issuance of a permit granted by a writ court in favour of a third party. The Hon'ble Judges had reproduced paragraph 7 of the aforesaid decision which runs as follows:--

'The petitioners are existing stage-carriage operators on different routes. They hold permits granted by the Regional Transport Authorities concerned. Mithilesh Garg, petitioner in Civil Writ Petition No. 1345 of 1989 has stated that he holds a stage carriage permit and plies his vehicles on the Meerut-Parikshitgarh-Hasifabad-Lal-Iana and allied routes under the jurisdiction of the Regional Transport Authority, Meerut, According to him prior to the enforcement of the Act. 23 permit-holders were operating on the said route but thereafter under S. 80 of the Act, the Regional Transport Authority, Meerut, has issued 272 more permits in respect of the same route. Similar facts have been stated in the other writ petitions. As mentioned above the petitioners are permit-holders and are existing operators. They are plying their vehicles on the routes assigned to them under the permits. They are in the full enjoyment of their fundamental rights guaranteed to them under Art. 19(1)(g) of the Constitution of India. There is no threat of any kind whatsoever from any authority to the enjoyment of their right to carry on the occupation of transport operators. There is no complaint of infringement of any of their statutory rights. Their only effort is to stop the new operators from coming in the field as competitors. We see no justification in the petitioners' stand. More operators mean healthy competition and efficient transport system. Over-crowded buses, passengers standing in aisle, clinging to the bus doors and even sitting on the roof tops are some of the common sights in this country. More often, one finds a bus which has noisy engine, old upholstry, uncomfortable seats and continuous emission of black smoke from the exhaust pipe. It is, therefore, necessary that there should be plenty of operators on every route to provide ample choice to the commuter-public to board the vehicle of their choice and patronize the operator who is providing the best service. Even otherwise the liberal policy is likely to help in the elimination of corruption and favouritism in the process of granting permits. Restricted licensing under the old Act led to the concentration of business in the hands of few persons thereby giving rise to a kind of monopoly, adversely affecting the public interest. The apprehensions of the petitioners, that too many operators on a route are likely to affect adversely the interest of weaker section of the profession is without any basis. The transport business is bound to be ironed out ultimately by the rationale of demand and supply. Cost of a vehicle being, as it is, the business requires huge investment. The intending operators are likely to be conscious of the economics underlying the profession. Only such number of vehicles would finally remain in operation on a particular route as are economically viable. In any case the transport system in a State is meant for the benefit and convenience of the public. The policy to grant permits liberally under the Act is directed towards the said goal. The petitioners who are already in the business want to keep the fresh entrants out of it, and as such eliminate the healthy competition which is necessary to bring efficiency in the trade.'

14. Their Lordships of the Supreme Court had further observed in the said decision as follows (para 6 of AIR):--

'The Parliament in its wisdom has completely effaced the above features. The scheme envisaged under Sections 47 and 57 of the old Act has been completely done away with by the Act. The right of existing operators to file objections and the provision to impose limit on the number of permits have been taken away. There is no similar provision to that of Section47 and Section 57 under the Act. TheStatement of Objects and Reasons of the Act shows that the purpose of bringing in the Act was to liberalise the grant of permit. Section 71(1) of the Act provides that while considering an application for a stage-carriage permit the Regional Transport Authority shall have regard to the objects of the Act. Section 80(2), which is the harbinger of liberalisation, provides that a Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act. There is no provision under the Act like that of Section 47(3) of the old Act, and as such no limit for the grant of permits can be fixed under the Act. There is, however, a provision under Section 71(3)(a) of the Act under which a limit can be fixed for the grant of permits in respect of the routes which are within a town having population of more than five lakhs.'

15. As noted, Section 71(1) of the Act provides that while considering an application for a permanent stage carriage permit the Regional Transport Authority shall have regard to the objects of the Act. And, Section 80(2) further provides that a Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind may at any time under the Act. The aforesaid provisions of the Act being, what they are, there could be little mistaking that grant of permit should be the rule and refusal to grant permit should be the exception. Even so, the S.T.A. appears to have refused to grant permit to the writ petitioner for a permanent stage carriage permit for the route in question, communicated to the petitioner on 8th February, 1994 after the passing of the impugned order dated 20th January, 1994. The learned Advocate for the Appellants had produced the relevant office file in connection with the relevant matter for our perusal, but the resolution dated 17th September, 1993 could not be found therein. There is no knowing why the permit, sought for by the petitioner, has not been granted to the petitioner. In the facts and circumstances indicated above, the learned Judge does notseem to us to have erred in passing the impugned order, he did.

16. Realising the difficulty somewhat tardily, the learned Advocate for the appellants had urged that the High Court in exercise of its writ jurisdiction could not direct issuance of a permit. But to that we would like to note with a minute of dissent and refer to the following observations of the Supreme Court in The Comptroller and Auditor General of India, Gian Prakash, New Delhi v. K. S. Jagannathan, : [1986]2SCR17 :--

'There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.'

17. Following the aforesaid decision of the Supreme Court, a Division Bench of this Court in Satyendra Nath Mondal v. Hindusthan Petroleum Corporation Ltd.. 1994) 1Cal LT (HC) 184, had directed the Hindusthan Petroleum Corporation Ltd. to offer the writ petitioner (therein) Relail Outlet Dealership (in question) for the reasons discussed therein. If would also appear from the aforesaid decision that a Division Bench of the Patna High Court in C. W. J. C. No. 7686 of 1989 With M. J.C. No. 784 of 1991 had also directed the Bharat Petroleum Corporation Ltd. to appoint the second candidate in the merit list as Distributor at Purnea in terms thereof as the first candidate in the merit list was not found to be eligible for the dealership in question. It would further appear therefrom that the Supreme Court was not inclined to interfere with the aforesaid order passed by the Patna High Court.

18. In view of the facts and circumstances of the matter discussed above and the decisions hereinbefore referred to, the learned Trial Judge seems to us to have been perfectly justified in directing the State Transport Authority, West Bengal, to issue offer letter to the writ petitioner for grant of permanent stage carriage permit for the route in question within four weeks from the date of communication of the order by passing the impugned order dated 20th January, 1994, which order should have been passed by it (S.T.A.) had it properly and lawfully exercised the discretion conferred upon it by the Statute, as indicated above. We, therefore, find nothing to interfere with the impugned order passed by the learned Trial Judge. There seems little substance in the appeal as such.

19. In the result, the appeal fails and is dismissed with costs. The impugned order of the Court below dated 20th January, 1994 be hereby confirmed.

Prabir Kumar Majumdar, J.

20. I agree.