MIRA SUR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this writ petition the petitioner has challenged the decision of the State Transport Authority (S.T.A.), West Bengal dated the 30/12/1992 Annexure-P to the writ petition rejecting the prayer of the petitioner for stage carriage permit. The petitioner on 5/08/1989 made an application before the S.T.A., West Bengal for a permanent stage carriage permit in respect of the route Calcutta to Siliguri. Subsequently the petitioner moved this court by a writ petition which was disposed of by a learned single Judge of this Court by passing the order dated the 2/05/1991 requiring the S.T.A. to consider and dispose of the petitioner's application for stage carriage permit on the said route within a specified time. Thereafter the S.T.A. disposed of the application by a resolution dated the 6/06/1991 by which the petitioner's application was rejected on the ground that the concerned route was a nationalised one and the State Transport Corporations were operating on the said route and it was felt that adequate services had been maintained on the route and no permit had been issued to private operators on the said route after notification. The said decision of the S.T.A. dated the 6/06/1991 was challenged by the petitioner by a writ petition before this court. The said writ petition was finally heard and disposed of by Handas Das, J. on 8th Sept. 1992 requiring the S.T.A. to consider the application of the petitioner for stage carriage permit within a specified time. The petitioner then preferred an appeal against the said order of Handas Das, J. dated the 8th Sept. 1992 and the said appeal was disposed of by a Division Bench by order dated the 24th Nov. 1992. The Division Bench in disposing of that appeal inter alia directed the S.T.A. to consider the petitioner's application for stage carriage permit within a specified time in terms of the order of the learned trial Judge and by following the principle laid down by the Supreme Court in the case of Mithilesh Garg and also follow the scheme laid down under the new Motor Vehicles Act, 1988 under which there was no maximum number of stage carriage fixed for any particular route. Be it noted that the order passed by the learned trial Judge stood modified by the order passed by the Division Bench in appeal. Pursuant to the direction of the Division Bench the petitioner was given a hearing by the S.T.A. on 30/12/1992 but thereafter nothing was communicated to the petitioner about the fate of his application for the stage carriage permit. Consequently the petitioner moved this Court again by another writ petition. In that writ proceeding Kalyanmoy Ganguly, J. passed an order on 23/04/1993 adjourning the case for a fortnight for giving further opportunity to the State Transport Authority to produce the records and also directed that if in the meantime the petitioner applied for a temporary permit the S.T.A. would forthwith issue the same. On 13/05/1993 the S.T.A. however preferred an appeal against the said order of Kalyanmoy Ganguly, J. dated the 23/04/1993. The S.T.A. also moved an application for stay of the impugned order and the stay application was disposed of on 13/05/1993 by the Division Bench by directing the S.T.A. to grant temporary permit for a period of 4 months subject to the decision taken by the learned trial Judge on merits of the writ application. The appeal was also disposed of. Then on 14/05/1993 the existing operators being Shri Pravash Chandra Sinha and others moved an application before the Division Bench inter alia for modification/clarification of the order passed on 13/05/1993 and the Division Bench passed certain interim order on that application. Thereafter the S.T.A. moved an application before the Division Bench for recalling the order dated the 13/05/1993 and the Division Bench disposed of the said application by recalling the order dated the 13/05/1993 and also directed the S.T.A. to take steps on the basis of resolution, if any already taken and to dispose of the application filed by the petitioner for the grant of permanent permit in respect of the said route and implement the same within six weeks without prejudice to any order that may be passed in any other proceeding. The S.T.A. was also directed to grant temporary permit. The said order was passed by the Division Bench on 3/08/1993 which is Annexure-N to the writ petition. The petitioner was thereafter granted temporary permit for four weeks on that route. Subsequently, the petitioner was informed of the resolution of the S.T.A. taken in their meeting held on 30/12/1992 whereby the petitioner's application for permanent permit was rejected, vide Annexure-P to the writ petition, on the ground that the concerned route was adequately served by State Transport Corporations as well as by the existing private operators and further grant of permit on the route would cause unhealthy congestion. Being aggrieved by the said resolution the petitioner has now moved the present writ petition.

(2.) Although in the impugned resolution of the S.T.A. dated the 30/12/1992 nothing has been mentioned (as a ground of rejection of the petitioner's application for stage carriage permit) that the concerned route, namely, the route Calcutta-Siliguri is a nationalised one, and in spite of the finding of Handas Das, J. in the order dated the 8th Sept. 1992 as confirmed by the Division Bench in the order dated the 24th Nov. 1992 Annexures-G and H to the writ petition, that the route has not been declared as nationalised in accordance with the provision of the Motor Vehicles Act, the learned Advocate for the respondents tried very strenuously to show that the route is in fact a nationalised one but ultimately he had to abandon his effort in this respect for want of materials. In this connection, I would however, like to put it on record that this time the S.T.A. has not rejected the petitioner's application on the ground that the route is a nationalised one and as such it is not open to the learned Advocate for the respondents to import a new ground in support of the rejection of the petitioner's application when no such ground appears in the resolution of the S.T.A. for rejecting the petitioner's application. Moreover this point has been already settled by the decision of the learned single Judge as well as of the Division Bench as noted above. Any way, the zeal of the learned Advocate for the respondents in this respect once again proved abortive on point of fact also.

(3.) In the order of the Division Bench dated the 24th Nov. 1992 it has been held in effect that in considering the question as to whether the stage carriage permit is to be granted the question whether there are sufficient number of vehicles on the concerned route will not be a matter for decision of the S.T.A. in view of the liberalised policy adopted in the new Motor Vehicles Act of 1988. Under the M.V. Act, 1988 there is indeed a provision which provides for limiting the number of stage carriage on city routes in towns with population of not less than five lakhs. That provision is contained in Section 71(3)(a) of the M. V. Act, 1988 which is reproduced below :-