State Transport Authority and ors. Vs. Nirmalendu Das and ors. - Court Judgment

M.N. Roy, J.

1. This application for stay dt. 9th Jan. 1989, was moved in an Appeal which was preferred against an order dated 22nd Dec. 1988, made in the concerned Writ Petition, by a learned Judge of this Court.

2. The copy of the order was not produced by either of the parties in this proceeding, even though they have filed the other pleadings, since the said copy was not made available to them. But the gist of the order has been quoted in para 4 of the application and that shows that the said order contains two parts and the first part relates to direction on the State Transport Authority concerned, to dispose of an application on consideration of the representation of the petitioner after taking into account a mass petition, the particulars whereof, would be indicated hereinafter, within two weeks from the date of the communication of the order and the second part of the said order is to the effect, that those authorities to make an order to the effect that the Writ petitioner/Respondent will run his vehicle in the meantime under the orders of the Court without any permit and further, they should grant temporary permit to the Writ petitioner/Respondent. We think, on the basis of the submissions as made before us, some relevant facts, as under, will have to be narrated.

3. The Writ Petitioner/Respondent claimed that he was the owner of the three luxury buses bearing Nos. WGB 5660, 5661 and 6077 and it was his case, that those vehicles were and are duly registered in his name by the Registering authority, Midnapore and they were lying idle on the date of moving the Writ Petition i.e. till 22nd Dec. 1988, when the application in which the concerned order, which is in issue in this Appeal, was preferred. It was his case that the vehicles in question, were purchased on hire purchase agreement basis and all dues, rates and taxes for them have been duly paid and they are not lying outstanding. It was his case that for the vehicles, the Writ Petitioner/Respendent applied before the Regional Transport I Authorities of Howrah and Midnapore and also SectionT.As. concerned, for stage carriage permits in different routes of West Bengal. Mr. Banerjee appearing for the Writ Petitioner/Respondent and opposing the present application, has filed a chart showing ' the manner and way in which those applications have not really been considered by the authorities concerned. In fact, it was pointed out by him that in respect of all the routes, as applied for, interviews have been taken and on asking, necessary documents and records have been produced, but in many cases results have not as yet been communicated. He further pointed out that in respect of the route Tamluck to Balurghat, R.T.As. Midnapore, granted a temporary permit but ultimately, his client could not avail of the benefits of such grant, because of machination of the authorities concerned. It has been stated by him that in respect of the route Calcutta to Gopalpore, a permanent permit was issued for a period of five years by S.T.A., West Bengal but ultimately the same was refused by the State Transport Authority, Orissa since they have refused to countersign the same. It was Mr. Banerjee's further case that at least in respect of five applications for various routes, no steps have been taken by R.T.A. Midnapore and those applications are still pending and till the date of moving the writ petition, the writ petitioner respodent was not informed anything about the fate of those applications.

4. On a reference to a representation dated 24th May 1988, which has been disclosed as Annexure-E to the affidavit-in-opposition dated 9th Jan. 1989, as filed in this proceeding, it would appear that the Writ Petitioner/Respondent, after narrating the entire facts and circumstances, asked for the grant of permit in respect of the route from Balurghat to Digha via Paniparul, Egra, Howrah Railway Station, NH 6, NH 4 Esplanade, Behrampore, Calcutta, 24-Parganas, Nadia. Malda, West Dinajpore etc., as a daily service. Such representation was made, pursuant to the application for temporary permit which was filed on 11th May 1988 and that has been disclosed with the said affidavit. It should be noted that the concerned route Digha to Balurghat or vise versa is an unapproved oneand for that route, initially on 24th May 1988, an application for temporary permit was filed and that too according to the Writ Petitioner/Respondent, with proper requisites and documents. The grant of the said permit was refused on 30th May 1988, by the Secretary of S.T.A. West Bengal, stating that no permit in the concerned route could be granted as the route in question, for which the permit as asked for, was not an approved one and it was not till then officially established, that introduction of the said route was necessary to serve the interest of the public in general. Against the said letter, on or about 16th June 1988, the learned Advocate of the Writ petitioner/Respondent informed the Regional Transport Authority, Howrah about an order made by another learned Judge of this Court on 14th June 1988, in respect of the refusal to grant permit for a route from Howrah to Behrampore. This refusal, has really no connection with the present refusal of the concerned grant directly, but we have made reference to the same as obliquely it was suggested by Mr. Banerjee, that all refusals to grant any permit to the Writ Petitioner/Respondent was aimed at or aimed with the object of harassing him.

5. In fact, the Writ Petition, in which the impugned order was made, was directed against the two orders as contained in the letters dt. 30th May 1988 and 17th June 1988 as issued by the Secretary to S.T.A., West Bengal We have indicated earlier the contenu of the order dt. 30th May 1988 and on a reference to the other order dated 17th June 1988, it would appear that the Secretary of S.T.A., West Bengal, informed the Writ Petitioner/Respondent, the same fact as indicated hereinbefore and in addition to that, it was also informed that there was no public needs for the route and furthermore, Government buses were plying on the route in question and as such, there was no proposal for introduction of any more bus in the concerned route.

6. We have indicated earlier the order, which was proposed by the learned Trial Judge, on the application which was moved against those two orders and Mr. Seth appearing in support of this application stated that when the route Digha to Balurghat or vise versa was an unapproved one, there was no proposal for introduction of any more bus on the route and there was no such necessity apart from the fact, that vehicles on the rout were being operated by the Government, so the orders as impeached, were duly am appropriately passed under the provisions on the Motor Vehicles Act, 1939. In view of the circumstances as aforesaid and on the basis whereof, the refusals in the instant case, wert made, Mr. Seth claimed and contended that the State Transport Authorities concerned had acted duly, legally and authorisedly under the provisions of the West Bengal Amendment of Section 68FF of the Act, which indicates the powers of the State Government, to direct the grant of temporary permits in certain cases, as under : --

If at any time it appears to the Stat Government that any State Transpor. Undertaking has failed or is likely to fail to provide adequate road transport service for the carriage of passengers in any notifies area or notified route in pursuance of an approved scheme enabling such undertaking to run and operate such service to the complete exclusion of other persons, then inotwithstanding anything to the contrary contained in this Chapter or in Ch. IV, the State Government may direct R.T. A. to grant, in respect of such area or route, to other persons such number of stage carriage permits, to be effective for such period not exceeding four months as the State Government considers necessary to secure or maintain the adequacy of such service in such area or procedure laid down in Section 57, grant such permits to such person as it thinks fit. In fact, it was pointed out by him that such West Bengal Amendment has been incorporated under the parent Section 68FF of the Act, which deals with the restrictions on grant of permits in respect of notified area or notified route.

7. It was Mr. Seth's further submission that the background and the circumstances which have been sought to be pleaded by Mr. Banerjee, on the basis of the submissions on his client's affidavit-in-opposition, as the real cause for refusing the grant of permit presently, had no basis in the facts and of circumstances of the case and it was his specific submission that even though S.T.A. concerned here, had granted the Writ to Petitioner/Respondent a permanent permit for five years from Calcutta to Gopalpore, which was an inter-State route, the same could not be given effect to because of the refusal of S.T.A. Orissa, who refused to countersign the permit and for orders, which are pending, and which have been passed by the Orissa High Court.

8. In any event, it was Mr. Seth's submissions that the learned Judge had no authority under the provisions of the Motor Vehicles Act, 1939 or otherwise, to direct that the Writ Petitioner/Respondent's vehicle will ply without any permit till the grant of temporary permit, which was directed and according to him, even such directions of the grant of temporary permit by the learned Judge was wrong since there was no justification recorded by the authorities concerned for grant of temporary permit on the route in question under the four clauses of Section 62 of the Act and in any event, the High Court was not the authority to be satisfied about the four conditions which are necessary under Section 62 of the Act, for the grant of temporary permit and more particularly when, the third proviso to the West Bengal Amendment provide that an application for the grant of a temporary permit for a stage carriage shall be made by such date as may be appointed by the Regional Transport Authorities for receipt of such application. It was in fact, pointed out by Mr. Seth, that no such necessity for the grant of temporary permit has either been announced or any date has been fixed for that. After hearing the parties on the question whether S.T.A. can claim to have the same powers as R.T. A. in respect of the grant of temporary permits, we feel that the answer should be in the affirmative i.e. the State Transport Authority in the matter of grant of termporary permit, will have the same powers as R.T.A. and they can also reasonably follow the provisions of I Section 62 and the clauses as mentioned thereunder in the matter of the grant of temporary permits.

9. In any event, this Court cannot taken upon itself, the powers and responsibility to grant temporary permits, in the facts of this case and more particularly when, the necessary power to grant such permits is vested in the Regional or State Transport Authorities and that too, on the basis of the necessary satisfaction reached on the four or any of the grounds as indicated in Section 62 of the Act however hard or harsh the facts of a given case may be.

10. We are not saying anything on the grant of inter-regional permit to the writ petitioner/respondent on the route Calcutta to Gopalpore, as we were not informed definitely as to what order the Hon'ble Orissa High Court has passed in the proceedings, said to have arisen out of such grant. But, it is needless to point out, that if there is any order of restraint, the said High Court has issued or immediately when such restraint order, if any, against the grant, as made in favour of the writ petitioner/respondent is withdrawn or dissolved, he would be entitled to ply his vehicle in question in the concerned route for the unexpired period or the permit as granted to him or on the basis of such permit as may be granted.

11. We are shown by Mr. Seth, a notification dt. 6th Jan. 1988, whereby the Transport (Passengers) Survey Committee, has been formed, for the purpose of ascertaining the need for introduction of new routes and necessity of maintaining the existing routes or any extension or limitation for the same is to be imposed or for augmentation of fixation of fleet strength and we were informed, that the said Committee has already started functioning and taking necessary steps and actively considering the cases within their power and competence and for the purpose of duly co-ordinating the Transport system and as such has decided, that all application for inter-regional or inter-State routes are to be made to the State Transport Authority and more particularly, in respect of the routes covering more than two regions or two States. In this case, we were not really required to refer to the function and functions of the abovementioned Committee, but we have made some reference to the same, as Mr. Seth referred to the same.

12. We have indicated earlier our definite views on the point involved or on the powers of this Court, in a case of the present nature and we think, that before leaving the matter, we should refer to certain cases as cited at the Bar. To establish, how, when and in what circumstances and manner, a temporary permit can and should be granted, Mr. Seth referred to the case of A. Viswanathan v. State Transport Appellate Tribunal, Pondicherry, : [1987]2SCR179 , where it has been observed that a temporary permit can be granted only if the permit is required for the purposes of reasons mentioned in els. (a) to (d) of Section 62 (1) of the Act or the circumstances referred to in Sub-section (2) thereof. In the facts of this case, agreeing with the submissions of Mr. Seth, we find and hold that the requirements of Section 62 have not been satisfied and even on the mass representation dt. 20th Nov. 1988, which has been disclosed in Annexure-E to the petitioner of motion, this Court was powerless and if at all, the Authorities concerned only, could have determined on the need and not this Court. Then reference was made by Mr. Seth to the case of M/s. Adarsh Travel Bus Service v. Stateof U.P., : AIR1986SC319 where it has observed that where a route is nationalised under Ch. IVA of the Act, a private operator with a permit to ply a stage carriage permit over another route but which has a common overlapping sector with the nationalised route cannot ply his vehicle over that part of the overlapping common sector, even if with corridor restrictions, that is, he does pick us or drop passengers on the overlapping part of the route and while the provisions of Chap. IVA are devised to override the provisions of Chap. IV and it is expressly so enacted, the provisions of Chap. IVA are clear and complete regarding the manner and effect of the 'take over' of the operation of a road transport service by State Transport Undertaking in relation to any area or route or portion thereof. While on the one hand, the paramount consideration is the public interest, the interest, of the existing operators are sufficiently well taken care of and slight inconvenience to the travelling public as may be inevitable are sought to be reduced to a minimum, apart from indicating that a perusal of Section 68C. Section 68D (3) and Section 68FF in the light of the definition of the expression 'route' in Section 2 (28A) appears to make it manifestly clear that once a scheme is published under Section 68D in relation to any area or route or portion thereof, whether to the exclusion, complete or partial of other persons or otherwise, no person other than the State Transport Undertaking may operate on the notified area or notified route except as provided in the scheme itself. A necessary consequence of these provisions is that no private operator can operate his vehicle on any part or portion of a notified area or notified route unless authorised so to do by the terms of the scheme Itself. He may not operate on any part or portion of the notified route or area on the mere ground that the permit as originally granted to him covered the notified route or aera. The private operator cannot take the plea of inconvenience of the public. If indeed there is any need for protecting the travelling public from inconvenience the State Transport Undertaking and the Government will make a Sufficient provision in the scheme itself to avoid inconvenience being caused to the travelling public and that a note of caution may be introduced that when preparing and publishing the scheme under. Section 68C and approving or modifying the scheme under on 68D care must be taken to protect, as far as possible, the interest of the travelling public who could in the past travel from one point to another without having to change from one service to another on route. This can always be done by appropriate clauses exempting operators already having permits over common sector from the scheme and by incorporating appropriate conditional clauses in the scheme to enable them to ply their vehicles over common sectors without picking up or setting down passengers on the common sectors. If such a course is not feasible the State Legislature may intervene and provide some other alternative methods. But that is entirely a matter for the State Legislature the State Government and the State Transport Undertaking and also indicating that in such a case the question really turns on the terms of the Scheme rather than on the provisions of the Statute. In the Scheme in question there is a clause to the following effect. 'No person other than the State Government Undertaking will be permitted to provide road transport services on the routes specified in para 2 or any part thereof.' In the face of a provision of this nature in the scheme totally prohibiting private operators from plying stage carriages on a whole or part of the notified routes, it is futile to contend that any of the operators can claim to ply their vehicles on the notified routes or part of the notified routes. Apart from other decisions, Mr. Banerjee, in reply, referred to the case of G. Madhava Rao v. Regional Transport Authority, Kurnool, : AIR1970AP419 , where a learned single Judge of that High Court has observed that the Regional Transport Authority cannot abuse its power by going on granting temporary permits in quick succession and not take speedy action for completing the procedure under Section 57 for granting regular permits and if upon the facts of any particular case it appears that R.T.A. is so abusing its powers, its action is liable to be corrected by granting a writ and opportunity must be given to existing operators to make representations against the issue or temporary permits. The case, in our view will not really help Mr. Banerjee in the facts of this case and specially against the views, which we have held and expressed.

13. Above being the position, wesetaside the order as impeached and remit the matter back to the learned single Judge, who is presently having jurisdiction to hear matter of the present nature and that too without expressing any opinion on the merits of the respective contentions and leaving the matter to him for being decided in accordance with law.

14. Consequent to the order which we have proposed, we feel that no useful purpose would be served by keeping the appeal pending and as such, we treat the appeal on day's list and have the same disposed of also and as a result of such order, we discharge the appellants from the undertaking as given earlier.

15. There will be no order as to costs.

16. All parties concerned, to act on a signed copy of the operative part of the judgment.

S.S. Ganguly, J.

17. I agree.