Sabyasachi Mukharji, J.
1. This is an appeal from the judgment and order passed by S. C. Ghose, J., dated 7th March, 1969 in Civil Rule Case No. 5522(W) of 1968. It appears that one Sailesh Nath Bishi, since deceased, was the owner of a Taxi Cab bearing registration No. WBT-1386. The said deceased had a permit issued to him by the appropriate Transport Authority. On the 7th January, 1962 the said Sailesh Nath Bishi died leaving all movable and immovable properties in favour of one Paresh Chandra Dey including the Taxi Cab No. WBT-1386. On the 24th January, 1962 Paresh Chandra Dey applied for probate of the said Will. On the 6th of February, 1962, Paresh Chandra Dey wrote a letter to the Secretary, Regional Transport Authority, Calcutta. The said letter has been set out in the affidavit in opposition of Debdas Chakravarti, filed on behalf of the Regional Transport Authority and it appears at page 55 of the Paper Book. In the said letter after setting out the fact of the death of Sailesh Nath Bishi and about the Will, Paresh Chandra Dey had stated that he had applied for the probate of the Will before the DistrictJudge, Alipore. Thereafter the said letter concluded, 'I was also nominated by the deceased and the ownership may kindly be transferred in my name.' On the 3rd of April 1962 Paresh Chandra Dey was appointed Administrator Pendente lite, of the estate and effects of the deceased. On the 26th of April, 1962 the said Paresh Chandra Dey, hereinafter, referred to as the petitioner, informed the Regional Transport Authority about the said appointment. It appears that on the 29th of January, 1963 an application pursuant to the leave of the probate Court was made for replacement of the Taxi cab and on the 29th of January, 1963 the Regional Transport Authority granted the application for replacement of the Taxi and a new Fiat Car was purchased by the petitioner for Rs. 13,928/-. On the 24th of May, 1963 the Regional Transport Authority renewed the permit in the name of the petitioner as Administrator pendente lite to the estate and effects of the deceased Sailesh Nath Bishi. The said permit was due to expire on the 24th of May, 1968. On the 11th September, 1964 the petitioner obtained probate of the aforesaid Will. On the 4th of May, 1967 the petitioner moved this Court under Article 226 of the Constitution and obtained a Rule being Civil Rule No. 816(W) of 1967. There was an interim order of injunction issued by the learned Judge. On the 29th March. 1968, the petitioner applied for renewal of permit. On the 7th of May, 1968 the petitioner was informed by the Secretary of the Regional Transport Authority that the application for renewal of permit has been rejected in view of the fact that the said application was not made by the permit holder Sailesh Nath Bishi. Being aggrieved by the said order the petitioner again moved this Court under Article 226 of the Constitution and Civil Rule No. 5522 (w) of 1968 was issued and interim order of injunction was also granted by the learned Judge. On the 26th July, 1968 the Regional Transport Authority made an application for vacating the interim order of injunction. Thereupon S. C. Ghose. J. on 4th of September, 1968 made the following order:--
'..............'' The petitioner in theRule is directed to apply for transfer of the permit in his name to the R. T. A. and the R. T. A. will consider and do the needful. The interim order already granted is vacated, but this will not prejudice the petitioner in applying for the transfer of the permit and in getting the same transferred in his name by making an appropriate application. Such an application is directed to be made within one month from the date and the R.T.A. is directed to consider the same within31-10-1968. In the meantime no effect will be given to the resolution dated 20-4-1968 till 31-10-1968. The application dated 31-7-1967 is disposed of as above ..,...............'
2. Pursuant to the aforesaid direction mentioned in the aforesaid order, the petitioner applied for transfer of permit on the 23rd of September, 1968. On the 11th of October, 1968 the petitioner was informed by the Secretary, Regional Transport Authority that the application for permit has been rejected by the Regional Transport Authority on the 9th of October, 1968 because the application had, not been filed as enjoined by the relevant statutory provision within 90 days of the death of the permit-holder and as the same had not been signed jointly by the transferor and the transferee. Civil Rules No. 816(w) of 1967 and 5522(w) of 1968 both came up for hearing before S. C. Ghose, J., who by a judgment, delivered on the 7th of March, 1968 discharged both the said Rules.
3. Being aggrieved by the order and judgment made in Civil Rule No. 5522(w) of 1968 the petitioner preferred this appeal before this Court. The learned Judge has referred to Section 61 of the Motor Vehicles Act, 1939, which provides as follows:--
'............... 61. Transfer of permit ohDeath of Holder-- (1) Where the holder of a permit dies, the person succeeding to the possession of the vehicles covered by the permit may, for a period of three months, use the permit as if it had been granted to himself:
Provided that such person has within thirty days of the death of the holder, informed the Transport Authority which granted the permit of the death of the holder and of his own intention to use the permit. Provided further that no permit shall be so used after the date on which it would have ceased to be effective without renewal in the hands of the deceased holder. (2) The transport Authority may, on application made to it within three months of the death of the holder of a permit transfer the permit to the person succeeding to the possession of thevehicles covered by the permit ............'
The learned Judge has held that in as much as the application was made long after the expiry of period of three months as stipulated in Section 61, and as such the ground on which the Regional Transport Authority, Calcutta has refused to consider the application, cannot be said to be erroneous. The learnedJudge has accordingly dismissed the application.
4. It appears to us that in this case both the petitioner and the Regional Transport Authority have committed mistakes. The Regional Transport Authority renewed the permit in the name of Sailesh Nath Bishi for the period of five years. The Regional Transport Authority now takes the stand that that was done wrongly and contrary to the statutory provision. The petitioner also did not surrender the vehicle after three months of the death of Sailesh Nath Bishi. It is true that the application under Section 61 for transfer of the permit on the death of the permit-holder has to be made within three months and if we treat the application that was made on the 23rd of September, 1968 pursuant to the order of this Court, obviously that was long after three months after the death of Sailesh Nath Bishi. However it appears to us that the letter dated 6th of February, 1962 can be construed as an application for transfer of permit. The letter, it has to be remembered, was written to the Regional Transport Authority. The Regional Transport Authority cannot transfer the ownership of the vehicle. The Regional Transport Authority was concerned' with the ownership of the permit. Therefore, when the petitioner prayed that 'the ownership may kindly be transferred', he was referring to the ownership of the permit and obviously not to the ownership of the vehicle. This letter was obviously written within the period of three months of the death of Sailesh Nath Bishi. It has also to be remembered that perhaps because of the fact that the permit in the name of the petitioner as the Administrator Pendente-lite to the estate and effects of Sailesh Nath Bishi, had been granted for the period of five years, which the Regional Transport Authority now says was done wrongly, the petitioner did not surrender the old permit after the period of three months from the death of Sailesh Nath Bishi and continued to use the vehicle on the basis of the said permit granted to him as Administrator-Pendente-lite,
5. Our attention was drawn to a Bench Decision of Madras High Court in the case of Sahib Transport Service v. Balasubramaniam, : AIR1969Mad55 . There the question however with which the Court was concerned was entirely different. It was held in that decision that if during pendency of an application for renewal of permit, a temporary permit is granted and even if the applicant dies after the date of expiry of original permit, heir of deceased succeeding to the possession of the vehicle covered by the permit can continue renewal proceeding and get permit transferred to him. The Court further observed that Section 61 of the Motor Vehicles Act, may be in a restricted manner, recognised the heritable character of a permit, the beneficial interest which the person succeeding to the possession of the vehicles has in the permit. In view however of the fact that the nature of the question involved was different it is not necessary for us to examine the said decision in detail. Reliance was also placed on the decision of the Supreme Court in the case of Mst. Dhani Devi v. Sant Bihari Sharma, : 2SCR507 . There also the Supreme Court held that in the case of death of the applicant before the final disposal of his application for the grant of a permit in respect of his vehicles the Regional Transport Authority has power to substitute the person succeeding to the possession of the vehicles in place of the deceased applicant and to allow the successor to prosecute the application. Bachawat, J. at p. 761 of the report delivering the Judgment further observed that as the relief sought for in the application was dependent upon and related to the possession of the vehicles, the application was capable of being revived at the instance of the person succeeding to the possession of the vehicles. Here again, the question with which the Supreme Court was concerned is not the question with which we are concerned.
6. In the view however, we have taken of the letter written by the petitioner to the Secretary Regional Transport Authority on the 6th of February, 1962, the resolution of the Regional Transport Authority, rejecting the prayer of transfer, dated 9th of October, 1968 cannot be sustained. The said resolution is accordingly quashed. In the above view of the matter this appeal must be allowed. The judgment and the order of S. C. Ghose, J., in Civil Rule No. 5522(w) of 1968 are set aside. The resolution of the Regional Transport Authority dated 9th of October. 1968 is hereby quashed. Let a writ in the nature of Certiorari issue accordingly. There will also be a writ in the nature of Mandamaus restraining the respondents from giving effect to the said resolution. The respondents are further directed by a Writ in the nature of Mandamus to consider the petitioner's application for transfer of the permit in the petitioner's name in accordance with law and in accordance with the observations made in this judgment. There will be no order as to costs.
Arun K. Mukherjea, J.