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Lab Singh Vs. State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revision Nos. 1028 (W), 1092 (W)--1131 (W), 1288 (W)--1297 (W) of 1967 With Appln. in Civil Re
Judge
Reported inAIR1968Cal262
ActsDefence of India Act, 1962 - Section 6(4); ;Motor Vehicles Act, 1939 - Sections 58, 58(1), 62 and 68HH
AppellantLab Singh
RespondentState of West Bengal
Appellant AdvocateS.D. Banerjee, ;P.K. Banerjee, ;Mahitosh Banerjee, ;Benode Bihari Giri and ;Narendra Chandra Saha, Advs. in C.R. Nos. 1028 (W) and 1092 (W), 1131 (W) of 1967, ;P.K. Banerjee and ;Benode Bihari Giri, A
Respondent AdvocateS.K. Acharya and S.K. Banerjee, Advs. in C.R. Nos. 1028 (W) and 1092 (W), 1131 (W) of 1967 and ;S.K. Banerjee, Adv. in C.R. Nos. 1288(W), 1297 (W) of 1967
DispositionPetition dismissed
Cases ReferredMahboob Sheriff & Sons v. Mysore State Transport Authority In
Excerpt:
- .....be kept alive in the interest of the travelling public. the petitioner claims that unless the permit granted to him was validated for a period of five years as provided in section 58 of the motor vehicles act. 1939, he would suffer irreparable loss and injury and that he was given to understand that his permit would be validated upto june 30, 1967. thereafter a notice appeared in the notice board of the regional transport authority, calcutta in which it was stated that the owners of vehicles holding temporary permits should contact the assistant regional transport officer for ascertainingwhether their permits were to be extended for two months more. thereafter a notice was put up on the notice board in which only 147 of the permit-holders were allowed extension, and in respect of.....
Judgment:
ORDER

B.C. Mitra, J.

Civil Revision No. 1028 (W) of 1967.

1. In this and in 105 other writ petitions the same questions are involved, and this judgment would govern all these writ petitions.

2. On December 8, 1986 an advertisement was published for the issue of permits for plying buses in and around Calcutta. This advertisement invited all persons having in their possession buses, and also those who could produce new buses for the purposes of stage carriage permits in different routes in and around Calcutta region, to apply to the appropriate authority for permission to ply the buses in these routes. The petitioner claims to have invested about Rs. 70,000 in a bus and was granted permit for the route No. 12C, i.e., the route lying between Howrah and Thakurpukur. On production of the petitioner's bus, he was granted a permit effective up to February 28, 1967. This permit was subsequently extended till April 28, 1967 and thereafter till June 30, 1967.

3. The petitioner's case is that after the General Election held in 1967, the United Front Government came to power, and wanted to cancel the permits issued by the previous Government. It is alleged that on April 28, 1967, a new Transport Policy was published in a Press Note, in which it was stated that new routes needed to be opened and the routes from which the State Transport Corporation would withdraw, should be made over to the private sector. It was further stated that the State Transport Corporation would withdraw from routes Nos. 1, 12C, 30B, 32 and 36B. On these routes, it was claimed, about 200 buses could be accommodated and all-told 500 private buses would be introduced on various routes in the Calcutta region. In this Press Note it was further stated that applicants for permits were selected by the previous Chief Minister and the previous Transport Minister, under circumstances which suggested that they should form the subject matter of a thorough investigation The new Government, it was further stated, had decided that in issuing 500 stage carriage permits the procedure prescribed by the ordinary law would be adopted and the permits would be issued by the Regional Transport Authority, Calcutta. It was further stated that the existing orders under the Defence of India Rules in respect of 311 private buses would be kept alive in the interest of the travelling public. The petitioner claims that unless the permit granted to him was validated for a period of five years as provided in Section 58 of the Motor Vehicles Act. 1939, he would suffer irreparable loss and injury and that he was given to understand that his permit would be validated upto June 30, 1967. Thereafter a notice appeared in the Notice Board of the Regional Transport Authority, Calcutta in which it was stated that the owners of vehicles holding temporary permits should contact the Assistant Regional Transport Officer for ascertainingwhether their permits were to be extended for two months more. Thereafter a notice was put up on the Notice Board in which only 147 of the permit-holders were allowed extension, and in respect of 150 other permit-holders, the extension was not granted. The petitioner is one of the permit-holders to whom the extension was not granted. The petitioner thereafter saw the Transport Minister and the Transport Commissioner for validating his permit for a period of five years, but he was told that the permit-holders had been screened, and those who actively supported the Congress Party in the last General Election would not be allowed any further extension of permits. It is in these circumstances that the petitioner moved a writ petition and obtained a rule nisi. The petitioner has asked for a writ of mandamus directing the respondent No. 1 (State of West Bengal) to withdraw the order whereby the extension was granted to 147 permit-holders and refused to 150 permit-holders and also for an order directing the respondents to cancel or rescind the said order and to treat the permit issued to the petitioner to be valid for a period of five years under Section 58 of the Motor Vehicles Act 1939.

4. Mr. S. D. Banerjee, learned Counsel for the petitioner, contended that Section 62 of the Motor Vehicles Act 1939 (hereinafter referred to as the Act) provided for grant of temporary permit not exceeding four months for the following purposes :--

(a) for the convenience of passengers on special occasion.

(b) for the purpose of seasonal business,

(c) to meet a particular temporary need

It was argued that the temporary permit issued to the petitioner was not for any of the reasons mentioned above, and therefore the permit issued to the petitioner must be held and treated to be a permit, other than a temporary permit, under Section 58(1) (a) of the Act. It was argued that a temporary permit could be issued only for one or other of the purposes mentioned in Clauses (a), (b) or (c) of Section 82 of the Act. But, as the permit in this case was not issued for any of these purposes, the permit must be held to be a permit other than a temporary permit under Section 58 of the Act

5. The next contention of Mr. Banerjee was that Sub-section (4) of Section 6 of the Defence of India Act. 1962 had the effect of amending the Act. Sub-clause (1) of Section 6(4) of the Defence of India Act provides that the State Government may by Notification authorise any person to perform such functions of the State Government under Chanter IV of the Act other than the making of rules and Sub-clause (ii) provides that such person may be authorised to perform to the exclusion of the State Transport Authority or Regional Transport Authority such function as may be specified in a Notification. It was argued that the temporary permits were issued to the petitioner in the exercise of the powers conferred upon the State Government under the said sub-clause of Section 6(4) of the Defence of India Act. It was further argued that although the Defence of India Act had the effect of amending certain provisions of the Act, the Act still remained in force subject to the amendment and modification effected by Sub-section (4) of Section 6 of the Defence of India Act Therefore it was argued, that although a temporary permit was issued to the petitioner, such a permit not having been issued for any of the purposes mentioned in Section 62 of the Act, must be held to be a permit other than a temporary permit and therefore valid for not less than three years and not more than five years under Section 58(1)(a) of the Act. In other Words, Mr. Banerjee submitted that although a temporary permit was issued under Section 6(4) of the Defence if India Act, such a permit could either be a temporary permit or a permit other than a temporary permit under the Act. But as the permit was not issued for either of the purposes set out in Section 62 of the Act, the permit must be held to be a permit valid for a minimum of three years and a maximum of five years under Section 50(1)(a) of the Act.

6. In support of his contentions Mr. Banerjee firstly relied upon a Bench decision of this Court reported in : AIR1945Cal260 , United Motor Transport Co. Ltd v. Sreelakshmi Motor Transport Co. Ltd Reliance was placed on this decision for the proposition on that the Motor Vehicles Act contemplated the issue of two classes of permits, namely, temporary permits and non-temporary permits. It was held that temporary permits could be issued only under the conditions enumerated in Section 62 and duration of such permits could not exceed four months. For the issue of such permits the Provincial Transport Authority was not required to follow the procedure laid down in Section 57 of the Act This decision to my mind, is not of any assistance to the petitioner in this case as the permits were issued not under the Act, but in exercise of the powers conferred upon the State Government by Sub-section (4) of Section 6 of the Defence of India Act, 1962

7. The next decision relied upon by Mr. Banerjee was a decision of the Supreme Court reported in : [1966]2SCR122 Kumaon Motor Owner's Union Ltd. v. State of Uttar Pradesh Reliance was placed on this decision for the proposition that the Motor Vehicles Act, 1939, continued to be in force as before subject to the amendment made by Section 6(4) of the Defence of India Act 1962. This decision also, to my mind does not support Mr. Banerjee's contention in this application The Defence of India Act was enacted to meet an emergency and Section 6(4) of the Act was not intended to replace the Motor Vehicles Act, 1939, in its entirety and as was held by the Supreme Court it was only the Clauses under Section 6(4) of the Defence of India Act which could be treated as part of the Motor Vehicles Act. But the contentions of Mr. Banerjee in this case was that the authority given to the petitioner to ply a bus temporarily should be held to be a non-temporary permit under Section 58 of the Act. There is nothing in the decision of Supreme Court to support the contention of Mr. Banerjee.

8. The next case relied upon by Mr. Banerjee is also a decision of the Supreme Court reported in : AIR1962SC1135 . Nilkanth Prasad v. State of Bihar. In that case it was held that where a particular route was notified under Chapter IVA of the Act, and an application was made by a private operator for the grant of a permit on a route so notified the Regional Transport Authority had no option but to refuse the permit to the private operator if the State Transport undertaking had either applied for a permit or had already been granted one. I do not see how this decision supports the contention of Mr. Banerjee. Mr. Banerjee also relied upon Section 3 of the Motor Vehicles (West Bengal Third Amendment) Act, 1967, whereby Section 68HH was introduced in the Act. By this amendment it was provided that the power of the Regional Transport Authority to grant temporary permits under Section 62 of the Act will not be affected by anything in Chapter IV of the Act. In other words, the effect of the amendment was that the Regional Transport Authority could grant a temporary permit even in respect of a notified area, that is to say, an area with respect to which permit would be granted to the State Transport Authority. But this amendment does not impose a duty upon the Regional Transport Authority to grant temporary permits in respect of a notified area, but is merely an enabling provision which authorises the Regional Transport Authority to grant temporary permits even in respect of notified area .

9. The next case relied upon by Mr. Banerjee was also a decision of the Supreme Court reported in : [1960]2SCR146 Y Mahboob Sheriff & Sons v. Mysore State Transport Authority In that case it was held that the duration of the renewal of a permit should not be left to the discretion of the Regional Transport Authority as the Legislature fixed the duration of the permit itself. It was further held that Sub-section (2) of Section 58 meant that an application for renewal should in all cases be treated as an application for a permit, and therefore the period provided under Section 58(1)(a) for a permit, would govern the period for which the renewal should be granted, and the duration of a permit being not less than three years and not more than five years, the same applied to a renewal of permit This decision again, to my mind, is of no assistance to the petitioner as he had made no application for a renewal of a permit under Section 58 of the Act so as to enable him to claim that the period of renewal should be the same as the period for which the permit itself was granted. The petitioner in this case was authorised to run a bus temporarily on the basis of a sanction granted in exercise of the powers conferred upon the State Government under Section 6(4) of the Act. It was not a case of a temporary or non-temporary permit granted to the petitioner under Section 62 or Section 58 of the Act.

10. Mr. S.K. Acharyya, learned Counsel for the respondents, on the other hand, contended that the sanction given to the petitioner under Section 6(4) of the Defence of India Act was not a permit, either temporary or non-temporary under the Act He referred to the copy of the permit, which is annexure 'B' to the petition and submitted that it was an authority to ply the petitioner's bus on route No. 12C. He also referred to the Notice dated June 28, 1967 from the Secretary, Regional Transport Authority, which was also included in annexure 'B' to the petition, and submitted that the sanction given to the petitioner was treated and described as an 'authorisation under D. I. Rules'. Mr. Acharyya, therefore, contended that there could be no question of compliance with the condition on which temporary permit could be Issued under Section 62 of the Act as the sanction given to the petitioner was not a temporary permit under that Section.

11. Mr. Acharyya next contended that as the sanction granted to the petitioner was not a permit under the Act, there was no substance in the contention of the learned Counsel for the petitioner that the sanction should be treated as a non-temporary permit, valid for a maximum of five years or a minimum of three years under Section 58 of the Act.

12. In my opinion, there is good deal of force in the contentions of Mr. Acharyya. The authority given to the petitioner to ply a bus for the period mentioned in such authority was not a permit either under Section 58 or under Section 62 of the Act. The authority was issued by the State Government in exercise of the power conferred upon it under Section 6(4) of the Defence of India Act, 1962. It cannot therefore, be held that the authority is a permit under Section 58 of the Act.

13. The next contention of Mr. Acharyya was that Section 88HH was introduced in the Act by Section 3 of the Motor Vehicles (West Bengal Third Amendment) Act. 1967 in order to enable the Regional Transport Authority to issue temporary permit for plying buses in the notified area. It was argued that this amendment was made in anticipation of the repeal of the Defence of India Act, 1962. The latter Act, it was argued, was not repealed, and therefore the Regional Transport Authority could exercise the power conferred by Section 68HH of the Act. But this amendment, it was further argued, was of no assistance to the petitioner as the authority given to him was issued underSection 6(4) of the Defence of India Act. It was further argued that merely because the Act was amended by introducing Section 68HH, it could not be contended by the petitioner that the Regional Transport Authority was bound to issue a temporary permit to the petitioner for a route in the notified area. This contention of Mr. Acharyya seems to me to be well founded. The sanction or authority granted to the petitioner was under the Defence of India Act, 1962, and there is nothing in Section 68HH of the Act which imposes an obligation upon the Regional Transport Authority to issue a temporary permit for a route in the notified area to any applicant to whom an authority to ply a bus in the notified area was issued under Section 6(4) of the Defence of India Act, 1962.

14. The next contention of Mr. Acharyya was that this Rule had become infructuous having regard to the order made by me on July 14, 1967. By that order liberty was granted to the State Government, its servants and agents to issue permits leaving vacancies for 55 permits and these 55 permits were directed not to be issued until consideration of the application of the petitioner and other applicants on their merits, subject to further orders of the Court. The applications for permits were to be considered within a fortnight from the date of the order and after taking into consideration, the decision of the authorities was directed to be communicated to the applicants forthwith. Relying upon the terms of this order Mr. Acharyya submitted that the Rule had been disposed of and therefore there remained nothing in the Rule for any further orders. I cannot accept this contention of Mr. Acharyya. The Rule had not been disposed of by the said order either by discharging the same or by making it absolute. On the other hand, the order provided that the vacancies were to be filled after taking into consideration all the applications by the petitioners and subject to further order of this Court. Furthermore, the order was made without prejudice to the rights and contentions of either party. In that view of the matter, it cannot be said that the Rule had been disposed of and therefore no further order could be made in this application.

15. The next contention of Mr. Acharyya was that having regard to the prayers in the petition no relief could be granted to the petitioner. It was argued that in prayer (a) a writ of mandamus was asked for but such a writ could not be issued with regard to the order mentioned in paragraph 15 of the petition, whereby extension was granted to 147 applicants and extension was refused to 150 other candidates. It was submitted that the authority granted to the petitioner to ply his bus had expired, and therefore even if the order granting extension to certain applicants and refusing the same to certain others was directed to be withdrawn the petitioner would obtain no relief whatsoever. The same argument. Mr. Acharyya submitted, applied to prayer (b). Regarding prayer (c), it was submitted that the authority granted by the State Government under Section 6(4) of the Defence of India Act, 1962 could not be held or treated to be a permit under Section 58 of the Act. In my opinion, this contention of Mr. Acharyya must be upheld. The cancellation or withdrawal of the order whereby extension of the authority to ply the bus was refused to the petitioner would not have the effect of extending the authority granted to the petitioner which had already expired to ply the bus within the notified area, nor can such an order of cancellation or withdrawal of the said order have the effect of changing or converting the authority granted under Section 6(4) of the Defence of India Act into a permit under Section 58 of the Act.

16. The State Government had issued the authority to the petitioner to ply a bus in the notified area under Section 8(4) of the Defence of India Act, 1962 The period mentioned in the authority expired and thereafter extension was granted to some of the holders of the authority and was refused to others. The question is if this Court in exercise of its powers under Article 226 of the Constitution can direct the Stale Government or the Regional Transport Authority to extend the authority granted to the petitioner or direct cancellation of the order whereby extension was refused to the petitioner. It seems to me that even though the petitioner claims to have invested a large sum of money in acquiring a bus for exploiting a route with regard to which the authority was granted to him this Court had no jurisdiction to direct the State Government or the Regional Transport Authority to issue a permit under the Act or to grant an extension of the authority under Section 6(4) of the Defence of India Act The withdrawal Or cancellation of the order refusing the extension of authority to the petitioner would not have the effect of a grant of fresh authority to the petitioner under Section 6(4) of the Act, nor would it have the effect of converting or changing the authority granted under the Defence of India Act into a permit either under Section 58 or under Section 62 of the Act.

17. For the reasons mentioned above. This application fails and is dismissed The Rule is discharged and the connected application is rejected. No order as to costs.

18. There is however one matter in which the petitioner is entitled to direction in his favour. It was contended on behalf of the petitioner that the reasons for refusal of the extension was not communicated to the petitioner Mr. Acharyya however submitted that the reasons were not communicated as the order dated July 14, 1967 directed the respondent to communicate the decision only and not the reasons. As the writ petition is hereby disposed of the reasons for refusal of the extension should be communicated to the petitioner within a fortnight.


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