Judgment On 10th November, 1981, the petitioners in the application for Rule, who were owners and operators of Mini Buses in Route No. 159, running from Dunlop Bridge to B.B.D. Bag, under permits duly issued and obtained from the concerned Regional Transport Authority, moved and obtained the rule against the owners and pliers of Mini Buses amongst others, operating in Route Nos. 163 and 164, which initially plied from Bhupen Bose Avenue (Shyambazar Five Point Crossing) to Howrah Station via Bepin Behari Ganguly Street, B.B.D. Bag and Strand Road and Bhupen Bose Avenue (Shyambazar Five Point Crossing) via Central Avenue, Chittaranjan Avenue, Bepin Behari Ganguly Street to B.B.D. Bag respectively. At the time of issuing the rule, no interim order was granted but liberty was given to apply for appropriate interim order on the same application, on notice to the respondents. It would appear that thereafter, on 30th November 1981, on mentioning, an interim order was made, restraining the respondents and each one of them or other subordinates from giving any effect or further effect to the impugned resolution dated 19th August, 1981, as passed by the Regional Transport Authority, Calcutta Region (hereinafter referred to as the said Authority). The particulars of the resolution would be mentioned hereinafter. 2. The petitioners claimed that respondent Nos. 5, 6, and 7 of the petition, were owners of Mini Buses, which plied in the first route as mentioned above and which was otherwise known as Route No. 163 and respondent Nos. 8 to 12 were owners of Mini Buses, which plied in the other route, being Route No. 164. It was the case of the petitioners that their Route, being No. 159, initiates from Dunlop Bridge and passes through B.T. Road, Tobin Road, Sinthi More, Chirea More, Shyambazar Five Point Crossing, Bhupen Bose Avenue, Central Avenue, Chittaranjan Avenue, Bepin Behari Ganguly Street and ends at B.B.D. Bag. There was also a statement made, that the petitioners at all material times plied and still are plying in their Route No. 159, on the basis of Fare Table as prescribed and recommended by the said authority. They have also given particulars of the fares recommended in respect of Route No. 164 as mentioned above, by such authority and so also those in respect of Route No. 163. 3. They have also given particulars of the fares recommended in respect of Route No. 164 as mentioned above, by such authority and so also those in respect of Route No. 163. 3. It was the categorical assertions, of the petitioners that at all material times they were plying their vehicles, on the basis of the rates as prescribed and in their route, without any trouble or hindrances from anybody or any quarter. But, towards the beginning of August, 1981, the Mini Buses, which were meant for Route Nos. 163 and 164 as mentioned above, had to be shifted from their terminus at Shyam Bazar Five Point Crossing, Bhupen Bose Avenue to Raja Dinendra Street and more particularly in front of peshbandhu Park, in terms of the instruction issued by the Deputy Commissioner of Police, Traffic, Calcutta because of the excavation work of Metro Railways at Bhupen Bose Avenue. The letter of the Deputy Commissioner of Police as mentioned above, was dated 24th July, 1981 and has been disclosed as Annexure "A" to the application for variation or modification of the interim order, which is being dealt with by me. The said letter showed that as the M.T.P. had started their under-ground work on Bhupen Bose Avenue near Shyambazar Five Point Crossing, where the Mini Bus Terminus of Route No. 164 existed, immediate shifting of such terminus was necessary and it was suggested that the same be shifted to the Eastern side of Raja Dinendra Street between Shyamlal Street and Nilambar Mukherjee Street as a temporary measure subject to the approval of the said authority. There is no doubt that such shifting of the Bus Terminus of Mini Buses from Bhupen Bose Avenue was recommended on account of M.T.P. works. 4. It was alleged by the petitioners that there was no Mini Bus Route from Raja Dinendra Street to B.B.D. Bag or Howrah Station and as a result of the shifting of the Terminus as mentioned above, of Route Nos. 163 and 164, the general people of the locality, were immensely benefited. In fact, it has been stated that since the first week of August 1981, all the Mini Buses of Route Nos. 163 and 164, were plying from Raja Dinendra Street and in their respective routes. 163 and 164, the general people of the locality, were immensely benefited. In fact, it has been stated that since the first week of August 1981, all the Mini Buses of Route Nos. 163 and 164, were plying from Raja Dinendra Street and in their respective routes. But, it has been stated that some time towards the end of September, 1981 or in the beginning of October, 1981, some of the Mini Buses of the routes as mentioned above, wrongfully and illegally, started plying their vehicles from Tobin Road to B.B.D. Bag via Sinthi More, Chirea More, Shyam Bazar Five Point Crossing, Bhupen Bose Avenue, Central Avenue, Chittaranjan Avenue and Bipin Behari Ganguly Street. In fact, it has been stated that the respondent Nos. 5 to 12, were and are the owners of those Mini Buses, which were so wrongly and illegally plying in the route as mentioned above, viz., Raja Dinendra Street to B.B.D. Bag and Howrah Station. That apart, it has been alleged that the owners of Mini Buses in those Routes, were charging fares, which were lesser than Route No. 159, as recommended by the said authority, as a result whereof, the petitioners were facing trouble everyday, as the passengers were refusing to pay the fares which were duly recommended by the authority as mentioned above. The petitioners have stated further, that against such wrongful and illegal acts and actions of plying the buses in the concerned Route Nos. 163 and 164, petitioner No. 1, viz., Dunlop Bridge Mini Bus Owner's Association, made representation to the Secretary of the said authority by their letter of 1st October, 1981. It has also been stated that by another letter of 3rd October, 1981, the said Association drew the attention of the Secretary of the said authority, against the illegal change of alignment of Mini Bus Route Nos. 163 and 164 and in that letter it was specifically contended that no prior information or resolution or any notification was issued in respect of the extension of those Routes. By the said letter, the Secretary concerned, was also requested to stop those Mini Buses in Route Nos. 163 and 164, from plying through or over Route No. 159, viz. the Route of the petitioners and more particularly from Tobin Road to Shyambazar. By the said letter, the Secretary concerned, was also requested to stop those Mini Buses in Route Nos. 163 and 164, from plying through or over Route No. 159, viz. the Route of the petitioners and more particularly from Tobin Road to Shyambazar. It was also the case of the petitioners that the stage carriage permits in respect of the Route No. 163 were from Shyambazar Tram Depot to Howrah Station and the owners of Mini Buses in that Route, wrongfully and illegally and so also without any valid permits, stopped plying their vehicles from Shyambazar Tram Depot and started plying from Tobin Road to B.B.D. Bag as mentioned hereinbefore. It was also contended that since the Secretary of the said authority failed to take any step and in effect to refuse to give any reply to the letter as mentioned above the Association by and under another letter of 3rd October, 1981, addressed to the Secretary concerned, wanted certain information regarding the extension of the Mini Bus Route Nos. 163 and 164. It was also alleged by the petitioners that not only the Secretary of the concerned authority but all concerned were informed and intimated about the illegal and irregular plying of the Mini Buses in Route Nos. 163 and 164. But they could not receive any redress of their grievances. It has been stated that the personal meeting of the Secretary of the said Association with the Secretary of the said authority, also proved to be futile and produced no result and ultimately, the petitioners came to know that on 19th August, 1981, the said authority had resolved to the following effect:- "Item No. 5 considered the report of the Secretary, R.T.A., regarding extension of the existing Mini Bus Route No. 164 (Bhupen Bose Avenue to B.B.D. Bag) upto Tobin Road. Since M.T.P. works started at Bhupen Bose Avenue, D.C.T.P. recommended shifting of the terminus to Raja Dinendra Street. Since there is a public demand to have Mini Bus facilities from Tobin Road, it was resolved that Route No. 164 be extended to Tobin Road, B.T. Road crossing". 5. The above resolution was claimed by the petitioners to be wrongful, illegal and mala fide apart from the fact that the same was passed for collateral purposes and without reasons. Since there is a public demand to have Mini Bus facilities from Tobin Road, it was resolved that Route No. 164 be extended to Tobin Road, B.T. Road crossing". 5. The above resolution was claimed by the petitioners to be wrongful, illegal and mala fide apart from the fact that the same was passed for collateral purposes and without reasons. It has also been claimed that the resolution dated 19th August, 1981, was violative of the provisions of the Motor Vehicles Act, 1931 and the Rules framed thereunder. It was categorically stated that such resolution was passed in utter violations of Rule 81 of the Bengal Motor Vehicles Rules, 1940, which speaks of and contemplates variation of permits under certain specified circumstances and conditions, apart from the other necessary formalities, required for such variations. Apart from the above, it was claimed that such resolution was passed without giving the petitioners any opportunity of making representation, in respect of the variations of the condition of the permits, attached to Route No. 164 and as such, the action as taken was not only contrary to law but was against the principles of natural justice and fair play. The petitioners have contended that the 19th August, 1981 resolution was passed behind their back and that too for the reasons as mentioned above, and as such, the same was liable to be quashed and set aside. In any event, the plying of Mini Buses in Route Nos. 163 and 164, by the respondents pliers according to their own choice and wishes, was claimed by the petitioners, to be irregular and void. It should also be noted that the interim order as made on 30th November, 1981, was directed by the learned Judge dealing with application, to continue till the hearing of the application, which is under consideration now and such order was made on 8th December, 1981. It should also be noted that the interim order as made on 30th November, 1981, was directed by the learned Judge dealing with application, to continue till the hearing of the application, which is under consideration now and such order was made on 8th December, 1981. The application for variation of the interim order as mentioned above, was heard in part on 12th January, 1982, 15th January, 1982 and thereafter, on 25th January, 1982, when it appeared that from the earlier grant of issue of the interim order, an appeal, being F.M.A.T. No. 3593 of 1981 was preferred and in that appeal, an application was also made by the applicants before me now, for vacating the interim order and such application was dismissed without any directions by the Appeal Court, as to whether the order as made, would prevent this Court from proceeding further with this application dated 7th December, 1981, for vacating the interim order. At the time of hearing on 25th January, 1982, Mr. Gharai claimed that in view of the determinations by the Appeal Court, the present application would be incompetent and cannot proceed. Such being the position and since I felt the necessary embarrassment, I requested the learned Advocates appearing before me, at that time, to have the position clarified from the Appeal Court. I find now, that on 9th February, 1982, as Mr. Giri did not press the appeal, the same was treated as on that day's list and has been dismissed without any order as to costs. The relevant submissions on the maintainability of the present application to be considered on such order which were made at the Bar, would be indicated hereafter. 6. The particulars of the applicants before me now, have been mentioned hereinbefore and they have stated, that applicant No.1, Shri Sujit Kumar Roy, is an operator of Mini Bus in Route No. 164 and has been operating on the said Route since 1973. The alignment of the said Route has been stated to be from Bhupen Bose Avenue to B.B.D. Bag via Shyambazar Five Point Crossing, Bhupen Bose Avenue, Jatindra Mohan Avenue, Chittaranjan Avenue and Bepin Behari Ganguly Street. 7. The applicant Nos. The alignment of the said Route has been stated to be from Bhupen Bose Avenue to B.B.D. Bag via Shyambazar Five Point Crossing, Bhupen Bose Avenue, Jatindra Mohan Avenue, Chittaranjan Avenue and Bepin Behari Ganguly Street. 7. The applicant Nos. 2-4 have stated to be the owners and operators of Mini Buses in Route No. 163 the alignment whereof would be upto Howrah Station from Shyambazar Tram Depot and such route has been stated to be passing through Cornwallis Street, Beadon Street, Chittaranjan Avenue, Bepin Behari Ganjuly Street, Lal Bazar Street, Netaji Subhas Road, India Exchange Place, Brabourne Road and Howrah Bridge. It has been claimed that in Route No. 164 there was seven operators where as there are three operators in Route No. 163. It was the case of the applicants that while operating in their Routes they experienced difficulties at the terminus as the M.T.P. works started at different places including Bhupen Bose Avenue and the Traffic Police Authorities, did not allow them to park the vehicles at the terminus and as a result whereof, the Deputy Commissioner of Police, issued instruction to the operators in the manner and light as mentioned hereinbefore, for shifting the terminus from one place to other, as temporary measure. It has also been stated that by a letter of 29th September, 1981, the Secretary of the said authority, asked the operators in Route No. 164, to shift the terminus due to M.T.P. works from Bhupen Bose Avenue to Tobin Road/B.T. Road crossing and to have their permits endorsed accordingly. This document has been disclosed as Annexure 'B' to the application. It was the case of the applicants that thereafter, they started plying their Buses on due endorsement of their permits and such plying commenced, since 30th September, 1981. 8. From a reference to Annexure 'B' as mentioned above and more particularly from the bottom of the same, wherein the extracts of the minute of the meeting of the said authority as held on 19th August, 1981, has been quoted it would appeal that even though the word extension was issued in the first paragraph of the resolution, but really the route was not extended, and the same was shifted in terms of the recommendations of the Deputy Commissioner of Police, Traffic. 9. 9. The petitioners have stated that even after this, by letter dated 26th November, 1981 as in Annexure 'C' to the application, the Secretary of the said authority, asked the operators of Route Nos. 163 and 164, to change the terminus and further asked that 50% of the existing operators, should have their terminus near Deshbandhu Park and the balance at Tobin Road. Such change of alignment of the Routes, has been claimed by the applicants to have been made on purely temporary basis, due to M.T.P. works on Bhupen Bose Avenue. The petitioners have stated that pursuant to such directions, the operators in Route Nos. 163 and 164 started plying their vehicles from the concerned terminus and that too for the convenience of the travelling public, which according to them, should be the prime and foremost consideration. 10. It was the case and allegation of the applicants that all the operators of Route Nos. 163 and 164, would have been impleaded as respondents, were not duly served with notices pursuant to the directions given by the learned Judge, issuing the rule. An interim order was obtained on 30th November, 1981, without proper or any service of the notice on all the respondents. It has also been stated that since 30th September, 1981, i.e., prior to the issue of the Rule and the interim order, the operators of Route No. 164, were operating duly on the changed alignment pursuant to the order of the said authority and the change of alignment as mentioned above, which was necessiated because of the temporary shifting of the terminus due to M.T.P. operations. The applicants have further stated that under section 48(3)(XXI) after amendment, the said authority is empowered to change the alignment of the Route upto 24 K.M. without issuing a fresh permit. It was also claimed that the applicants have not been served with the copy of the interim order as issued on 30th November, 1981, but they have come to know about the grant of such interim order from Newspaper reports as published on 3rd December, 1981. The applicants have stated that because of the interim order of injunction, the operators of Route Nos. 163 and 164, have suffered and are suffering and they are not in a position to know where to park their vehicles and which would be their terminus. The applicants have stated that because of the interim order of injunction, the operators of Route Nos. 163 and 164, have suffered and are suffering and they are not in a position to know where to park their vehicles and which would be their terminus. It was categorically contended that since under section 48(3)(XXI), there is a provision of extension of the Route upto 24 K.M. by the said authority and when the alignment has been changed purely on the temporary basis as mentioned above, there was no illegality in the concerned change of alignment. It has been stated by the applicants that by such change of alignment, the writ petitioners have not been put to any hardship and the extension as made, is only for 6 K.M. in a Route. It has also been stated that because of the interim order of injunction, the Mini Buses of the Routes as mentioned above have no terminus, furthermore they are suffering much when the Police and Corporation Authorities, do not allow the vehicles to be parked on the route, unless such parking is authorised and approved by the said authority. It was also claimed that if operation is done illegally or unauthorisedly, the operators are liable to be prosecuted and fined. In fact, it was categorically stated by the applicants that for the subsistence of the interim order or the effect thereof they could not ply their vehicles and have stopped plying. 11. In view of the hardship and apart from the fact that the interim order was not made on due compliance with the Rules and the more so when such interim order was obtained after the applicants were plying on their routes, the applicants have claimed that the interim order as made, should be varied, vacated or modified. 12. The application as mentioned, above was opposed by the petitioners in the Rule and they have filed an affidavit-in-opposition on 15th December, 1981. The material allegations in the application have been denied and it has been categorically denied that the applicants have experienced or are experiencing any difficulties for want of terminus. It was stated that if at all, for the M.T.P. works at Bhupen Bose Avenue, the operators of Route No. 164 may suffer, but such sufference would not be therefor those in Route No. 163. It was stated that if at all, for the M.T.P. works at Bhupen Bose Avenue, the operators of Route No. 164 may suffer, but such sufference would not be therefor those in Route No. 163. It was stated further that so far as Route No. 163 was concerned, since such Route starts from Shyambazar Tram Depot, the same could not be affected by the M.T.P. works. The deponent has also stated that if any shifting was required or recommended the same was for Route No. 164 only and that too in the specified way and manner as indicated in the letter of the Deputy Commissioner of Police, Traffic as mentioned above. The plying of the vehicles of both the Routes from Tobin Road, has been reiterated to be wrongful, illegal and improper. The deponent has further claimed that the letter dated 26th November, 1981, as in Annexure 'C' of the application and whereby 50% of Buses of Route Nos. 163 and 154 were directed to start from Tobin Road and the balance from Deshbandhu Park, was claimed to be a fabricated one and was written at the instance of the applicants. In fact, it has been claimed that there has been no resolution duly passed to the effects indicated in the said letter in respect of plying of the vehicles from the different terminus. It was claimed that before obtaining the order of injunction due service of the necessary records, was made on the respondents concerned. The plying of the vehicles on the changed alignment of the Routes, prior to the issue of the Rule or the injunction has been denied. The deponent has further stated that the pliers of Buses of Route No. 163 can very easily and conveniently park their vehicles in or near Shyambazar Tram Depot, where they were parking their vehicles before, and even after the M.T.P. works had started at Bhupen Bose Avenue and at the same time he has also stated that there would be no difficulty for the operators of Route No. 164, who park their vehicles near Deshbandhu Park i.e., the place which has been recommended by the Deputy Commissioner of Police, Traffic Department and which was also accepted by the said authority. 13. 13. The affidavit-in-reply to the above opposition, was dated 11th January, 1981 and there, the material allegations as contained in the affidavit-in-opposition, have been categorically denied and the deponent of the reply, has also focused the difficulties, in having the vehicles of the applicants or the owners of Mini Buses in the concerned routes to be parked at the places mentioned in their affidavit-in-opposition. He has also alleged that even the pliers of Mini Buses in Route No. 159, have changed their original routes and are plying according to their suitable way. It was categorically denied, that due service of the necessary and relevant records was not made on the petitioners, before obtaining the order which was prejudicial to them. It has also been stated that even if 8 or 10 Mini Buses ply on a common route along with other public service vehicles, in these days, there cannot be a cause or occasion for any loss for such plying. 14. Mr. Soumendra Chandra Bose, appearing in support of the application, claimed that since Mini Buses are stage carriages the provisions of sections 47 and 48 of the Motor Vehicles Act, 1939 would apply. He claimed that under section 48(3)(XXI), which would be the appropriate section in this case, the said authority had the due power and necessary right, to have the extension of the concerned route granted, without any opportunity or intimation to others, if such extension did not exceed 24 K.M. It was further claimed by him that since this was not a case of extension, but only a case of shifting for temporary purpose and period, due to the M.T.P. works and so even without complying with the procedures, if any, the said authority could have sanctioned such extension, as was done in the instant case. It was in short, submitted by him that when it was not a case of extension, but only a case of shifting, the formalities as required under the Act or the rules framed thereunder were not followed and furthermore in case of temporary shifting of the alignment, non-compliance with the formalities, would not make such shifting or any action as taken bad and void. Apart from the above, he has also made his submission on other aspects as mentioned hereinbefore and the particulars whereof have been mentioned in the application. Mr. Apart from the above, he has also made his submission on other aspects as mentioned hereinbefore and the particulars whereof have been mentioned in the application. Mr. Bose further highlighted the difficulties, that are being experienced by the applicants or the operators in Route Nos. 163 and 164. 15. Mr. S.K. Banerjee, appearing for the said authority, supported the case of the applicants and also contended that since it was a case of shifting only and not extension of the alignment of the Route, and as under section 48(3) (XXI), the said authority had the due power and competence so there was nothing to be interfered with as there was no illegality or any irregularity. He claimed that not only under section 48(3)(XXI), but also under section 57(3) and (8), there was a right of representation given to the petitioners, as the change of alignment was not made on the basis of an application under section 57(8) of the Act. He further claimed, that since it was not a case of extension, but a case of shifting of the terminal point, not only, no interference should be made, but it must also be observed, that there has been no illegality or any irregularity. 16. Mr. Sarkar, appearing for the respondent, State of West Bengal, adopted the arguments of Mr. Bose and Mr. Banerjee, the relevant particulars whereof, have been indicated hereinbefore. 17. Mr. Panja, opposed the application. He agreed that Mini Buses, because of the way and manner of plying, apart from other incidents, would be stage carriages and not contract carriages and as such, the provisions for the grant and issue of permits for stage carriages or the relevant provisions for cancellation of such permits or the extensions of them, as embodied or incorporated in the Motor Vehicles Act, 1939 and the Rules framed thereunder, would apply. Regarding the character of Mini Buses, viz., they are stage carriages and not contract carriages, I accept the submissions of Mr. Panja and agree with them. In fact, in the case of (1) Amar Kumar Naik & Ors. v. State of West Bengal & Ors., 80 CWN 526. I took the view that Mini Buses are really stage carriages and not contract carriages. Panja and agree with them. In fact, in the case of (1) Amar Kumar Naik & Ors. v. State of West Bengal & Ors., 80 CWN 526. I took the view that Mini Buses are really stage carriages and not contract carriages. In that case, I have also observed that "Contract Carriages" and "Stage Carriages" would fall within the definition of "Public Service Vehicle" as in section 2(25) of the Act, and they are distinct and separate classes, with characteristics and requirements of their own, which cannot be done away with. Such determination regarding the character of "Mini Buses" was made by me on the basis of the admitted way, manner and mode, in which they ply or are plying and are allowed to be plied. In view of the above there cannot be any doubt that the sections and rules relevant for the grant of stage carriage permits, their renewal cancellation and extension, would apply in the instant case and if any such permit is granted, renewed, cancelled or extended in contravention of such provisions, that would be void and bad. The applicants and the other respondents supporting them also claimed "Mini Buses", having the character of stage carriages. 18. The applicants and the other respondents supporting them also claimed "Mini Buses", having the character of stage carriages. 18. Section 46 of the Act specifies the contents or the particulars to be incorporated in an application for a stage carriage permit in respect of a service of stage carriage or to use a particular motor vehicle as a stage carriage and section 47 lays down the considerations to be followed by the said Authority, in dealing with such application for a stage carriage and such power amongst others initially included in sub-section (f) to consider the condition of the roads included in the proposed route or area; and shall also take into consideration any represntations made by persons already providing passenger transport facilities by any means along or near the proposed route or area, or by any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government, or by any local authority or police authority within whose jurisdiction any part of the proposed route or area lies: Provided that other conditions being equal, an application for a stage carriage permit from a co-operative society registered or deemed to have been registered under any enactment in force for the time being shall, as far as may be, be given preference over applications from individual owners. (2) A Regional Transport Authority shall refuse to grant a stage carriage permit if it appears from any time-table furnished that the provisions of this Act relating to the speed at which vehicles may be driven are likely to be contravened: Provided that before such refusal an opportunity shall be given to the applicant to amend the time-table so as to conform to the said provisions. (3) A Regional Transport Authority may, having regard to the matters mentioned in sub-section (1), limit the number of stage carriages generally or of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region and thereafter, by notification dated 19th June, 1980, before the first proviso to the above mentioned sub-section (f), the following has been added :-" and shall also take into consideration any representation made by a railway authority already providing passenger transport facilities by any means along or near the proposed route an area, or any by any police authority within whose jurisdiction any part of the proposed route or area lies. It would appear, that subject to the provisions of section 47 as mentioned above, under or in terms of section 48, the said Authority, on the basis of the application as made under section 46, would be entitled and authorised to grant stage carriage permits, in accordance with the application or with such modifications, as deemed fit or to refuse such grant. While granting such stage carriage permits, the said Authority, is also required to follow the other provisions or restrictions as provided for or incorporated and embodied in the said section 48. Previously amongst others the power of the said Authority under section 48(3)(XXI), was to the following effect :- (XXI) that the Regional Transport Authority may, after giving notice of not less than one month- (a) vary the conditions of the permit; (b) attach to the permit further conditions: Provided that the conditions specified in pursuance of clause (i) shall not be varied so as to alter the distance covered by the original route by more than 24 kilometers. and any variation within such limits shall be made only after the Regional Transport Authority is satisfied that such variation will serve the public convenience and that it is not expedient to grant a separate permits in respect of the original route as so varied or any part thereof; and in 1979, such provisions of section 48(XXI) have been substituted by the following :- (XXI) that the Regional Transport Authority may, after giving notice of not less than one month. (a) vary the conditions of the permit, subject to the limitations that, in no case, the distance covered by the original route shall be altered by more than 24 kilometers whether or not any such condition has been specified in the permit in pursuance of clause (i), (b) attach to the permit further conditions. 19. Since a stage carriage is also included in the definition of a public carrier, the provisions of section 54 laying down the provisions for application for such public carrier's permit those in sections 55 and 56, incorporating the procedure for considering applications for such permit and the grant thereof and the procedure in applying for and grant of permits as in section 57, may be conveniently looked into. In fact, as mentioned above, both Mr. Bose and Mr. Banerjee, referred to the provisions of section 57(8) as quoted hereunder:- An application to vary the conditions of any permit, other than a temporary permit, by the inclusion of a new route or routes or a new area or in the case of a stage carriage permit, by increasing the (number of trips above the specified maximum or by altering the route covered by it) or in the case of a contract carriage permit or a public carrier's permit by increasing the number of vehicles covered by the permit, shall be treated as an application for the grant of a new permit : Provided that it shall not be necessary so to treat an application made by the holder of a stage carriage permit who provides the only service on any route or in any area to increase the frequency of the service so provided, without any increase in the number of vehicles, in support of their claims and submissions that the petitioners in the Rule or in the instant case and more particularly when, the instant case, was one of shifting the terminus and not extension of the Routes, were not entitled to any notice or consideration of their objections and in fact, they have no right to object. As mentioned hereinbefore, reference was also made to Rule 57 of the Bengal Motor Vehicles Rules, 1940. It should also be mentioned that references to Rules 57A and B were also made. 20. As mentioned hereinbefore, reference was also made to Rule 57 of the Bengal Motor Vehicles Rules, 1940. It should also be mentioned that references to Rules 57A and B were also made. 20. The first and foremost consideration, which would be necessary in this case and that too on the pleadings as mentioned hereinbefore and the records as produced would be whether the instant case was a shifting of the terminus for temporary necessity or exigencies or the Routes in question, were really extended. If it is found that the routes were in fact extended, then the further question which would be required to be answered, is whether the petitioners, who c1aimed to be affected pre judicially by such extension as on such extension the concerned Routes were overlapping their Routes, would be entitled to raise or file objections and were required to be heard, before such extensions were granted. 21. The word "Shifting" would mean to change the place or position or direction and to move or remove from one place to another, to exchange for or to replace for another, to make a change in place. Thus, "Shifting" would not ordinarily mean and inc1ude extension. So, the word "Shifting", presupposes the happening of such or any fact, which may be sudden, accidental or in the nature of an immediate temporary need and in the case of extension, such exigencies are not ordinarily required. 22. Mr. Panja claimed that the effect of the order by the Appeal Court in F.M.A.T. No. 3593 of 1981 and more particularly when the same was dismissed without the corresponding leave to continue with the application, would be that such determination of the Appeal Court, against the refusal by T.K. Basu, J. to vacate, vary or modify the interim order, would operate as res judicata and the consideration of this application, which is word for word the same or contain the same pleadings, which were before T.K. Basu, J. would be hit by such principles. T.K. Basu, J. by his order dated 8th December, 1981 was considering the present application dated 7th December, 1981 and on that date, after giving other directions, directed that the interim order as granted, would continue till the disposal of the application. Such application according to Mr. T.K. Basu, J. by his order dated 8th December, 1981 was considering the present application dated 7th December, 1981 and on that date, after giving other directions, directed that the interim order as granted, would continue till the disposal of the application. Such application according to Mr. Basu, meant the application dated 7th December, 1981 and he c1aimed that even after the disposal of the concerned appeal for non-prosecution, the said order of T.K. Basu, J. would remain alive and will have to be disposed of finally and duly. Mr. Basu also claimed that in any event, since there was no determination on merits by the Appeal Court, the arguments on res judicata or the non-maintainability of the present application, an application of such principles, would neither be material nor available. The appeal in question, was not admittedly disposed of on merits or there was no determination of facts and law also on merits. 23. On his submissions on res judicata, Mr. Panja referred to the determinations in the case of (2) Y.B. Patil & Ors. v. Y.L. Patil, AIR 1977 SC 392 . In that case, the High Court at the time of the decision of the earlier writ petition on December 18, 1964 recorded a finding and gave directions to the Revenue Appellate Tribunal not to reopen the questions of fact in revision. The Tribunal while passing the order dated September 12, 1967 complied with those directions of the High Court and on such it has been held that the appellants were bound by the judgment of the High Court and it was not open to them to go behind that judgment in the appeal to the Supreme Court against the decision of the High Court in the subsequent writ petition. No appeal was filed against that judgment and it became final, apart from observing that principles of res judicata can be invoked not only in separate subsequent proceedings; they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding of the subsequent stage of that proceeding. Once an order made in the course of a proceeding becomes final, it would be binding of the subsequent stage of that proceeding. It should be noted that in terms of the determinations in (3) Bharat Board Mills Ltd. v. Regional Provident Fund Commissioner, AIR 1957 Cal 702 and other determination made by High Courts amongst others like Allahabad, Madras and Punjab, section 141 of the Code of Civil Procedure is not applicable to proceedings under Article 226 of the Constitution of India. 24. Mr. Panja also contended that there was no merit in the vacating application. He claimed that even if for exigencies or circumstances arising out of the M.T.P. works, the terminus of the concerned routes were shifted to Desh Bandhu Park and in fact which was done, his clients could have no objection. But, since from such shifted terminus at Desh Bandhu Park, there has been a further shifting by way of extension of the routes to Tobin Road, which is one stoppage ahead of the terminus of the petitioners and on such shifting, the route of the petitioners has been overlapped and they are also suffering, as the fare structures on such shifted or extended route have been fixed at a lesser rate, in terms of the requirements of the statute, the petitioners and each one of them were entitled to notices and due opportunities of not only being heard, but they should have also been given the necessary opportunities to object. It should be noted that the learned Advocates for both the sides appearing before me, claimed that Mini Buses, considering their nature and character of plying, would be stage carriages and not contract carriages. In fact, Mr. Panja claimed that relying on the determinations in the case of Amar Kumar Naik & Ors. v. State of West Bengal & Ors. (supra) he all through out contended upto the concerned appeal as mentioned above and still now he is contending that the formalities required under the said Act for the grant of stage carriages or for extension of their routes, which should be treated as grant of new permits, were not complied with and as such, not only the Rule should be made absolute, but no order should be made, varying, modifying or vacating the interim order. 25. 25. For the requirements, which are to be followed under the said Act, in the matter of grant of stage carriage permits or extension of such permits, which would have the effect of the grant of new permits, Mr. Panja referred to the case of (4) Serampore-Bandel Bus Association v. Serampore Bus Association Route No. 3 & Ors., 81 CWN 322, wherein it has been observed that where an alteration in any Bus Route made by a Regional Transport Authority on an application from the public or interested parties all the conditions of section 57(8) of the Motor Vehicles Act, 1939, must be fulfilled. when an application is made by an association of permit holders, it is not necessary that an application should have been made by every individual permit holders, apart from holding that where a Regional Transport Authority proceeds to alter a route or extend the same on an application under section 57(8) is immediately attracted even though it is done by way of variation of the conditions of the permit itself and where the statute requires that certain conditions must be fulfilled in doing so, no rule can abrogate such statutory requirements. Rule 81 of the West Bengal Motor Vehicles Rules cannot be read as to abrogate the requirements of section 57(8) and the requirements of section 57(3), (4) and (5) are required to be fulfilled even though the application is not an application for the grant of a new stage permit. Mr. Panja also contended that since in this case, admittedly, no notice was served or given to the petitioners even inspite of the fact that the extension as granted had the effect of alteration of the route and there was also no public notice, the petitioners have a strong prima facie case and as such also, the interim order should not be interfered with in any manner whatsoever. It was also claimed by Mr. It was also claimed by Mr. Panja that there has been intrinsic evidence in the said Act, establishing the intention of the Legislature, that when the Regional Transport Authority concerned proposes to alter or extend a route, even by way of alteration of the condition of permit, section 57(8) will have to be followed or the provisions of them will have to be fulfilled and even if such authority was authorised to alter the route by varying the condition of the permits in exercise of power under section 48(3)(xxi), it was necessary to fulfil the requirements of section 57(8) of the said Act and such power can be used and exercised subject to the provisions of section 57(8) even if Rule 81, which deals with variation of permits, lays down an independent procedure for exercise of such power. That the provisions of section 57 and more particularly those in sub-sections (3) and (5) are mandatory, Mr. Panja wanted to establish on a reference to the determinations in the case of (5) Delhi Transport Undertaking v. Zamindar Motor Transport Co. (P.) & Anr., AIR 1970 SC 466 , which has been followed in the case of (6) Saroj Kanti Basu v. R.T.A. & Ors., AIR 1974 Cal 411. In the determination of the Supreme Court as indicated above, it has also been observed that by section 48(3)(xxi) it is open to the Regional Transport Authority, after giving notice of not less than one month, (a) to vary the conditions of the permit, and (b) to attach to the permit further conditions. But an application for variation of the conditions of the permit for including a new route or routes or a new area has to be treated as an application for the grant of a new permit under section 57(8) of the Act and the State Transport Authority cannot ignore the provisions of section 57, sub-sections (3), (4) and (5). 26. Mr. Panja then referred also to the case of (7) Burdwan District Bus Association & Anr. v. The Regional Transport Authority & Ors., AIR 1973 Cal 411 , contending that provisions of section 57 will have to be followed in case of the sanction is outside the route and not in case of sanctions or extensions within the route. 26. Mr. Panja then referred also to the case of (7) Burdwan District Bus Association & Anr. v. The Regional Transport Authority & Ors., AIR 1973 Cal 411 , contending that provisions of section 57 will have to be followed in case of the sanction is outside the route and not in case of sanctions or extensions within the route. It has been observed in that case that where the route in respect of which the stage carriage permit was granted was Durgapur to Burdwan though the terminus point was fixed at Keshabganj Chatti and by the subsequent resolution of the R.T.A., the terminus point was altered from Keshabganj Chatti to Burdwan Court involving extension of two miles within the sanctioned route such extension is not really inclusion of any new route or new area within the meaning of section 57(8). Apart from the above, Mr. Panja, referred to the determinations in the case 0f (8) The Akal Transport Co. (P) Ltd. v. The District Judge, Ludhiana & Ors., AIR 1973 P & H 338, for the proposition that section 57(8) would be applicable where one of two terminal of a route is to be changed and clause (xxi) of section 48(3) would be applicable where diversion of a route between two terminal fixed for the original route is intended and not for the extension thereof beyond one of the two termini. 27. On a reference to the pleadings and records as produced in this proceedings, Mr. Panja claimed that in so far as Route No. 164, there was or has been some evidence justifying the shifting of the terminus to Desh Bandhu Park, but no such evidence was available, so far Route No. 163 was concerned. As such, he contended that there was no justifiable cause in shifting the said Routes up to Tobin Road and if at all, Route No. 164, for the exigencies of circumstances as mentioned hereinbefore, viz., the difficulties experienced by the M.T.P. works, could only be extended upto Desh Bandhu Park. But, there was no justification at all to extend Route No. 163 which was upto Shyambazar to Tobin Road, as there was no such recommendation or need for the same. In any event, it was contended by Mr. Panja that extension of either of the routes to Tobin Road, was had, void and unauthorised. It was also claimed by Mr. But, there was no justification at all to extend Route No. 163 which was upto Shyambazar to Tobin Road, as there was no such recommendation or need for the same. In any event, it was contended by Mr. Panja that extension of either of the routes to Tobin Road, was had, void and unauthorised. It was also claimed by Mr. Panja that since the extensions of the Routes upto Tobin Road, were not, on any recommendation, but they were, as would appear from the record in Annexure 'B' to the application, to meet public demand, so there was or has been a pressing public need and as such, the cases under consideration would not be cases of shifting of the terminus, but they would admittedly be cases of extensions, and as such, the petitioners were entitled to get the necessary protections and opportunities under the said Act, the more so when, by such extensions, their routes have been overlapped, causing loss of earnings. 28. Apart from his submissions as mentioned above, Mr. Sushi Kumar Banerjee, appearing for the Regional Transport Authority concerned contended that under Rule 81(a) which lays down that upon the application made in writing by the holder of any permit or by any other person or of its own motion the Regional Transport Authority may, at any time, in its discretion vary the permit or any of the conditions thereof subject to the provision of the following sub-rules, the Regional Transport Authority concerned, in their discretion and at any time, possessed the right and authority to vary the permits and such action having been taken in terms of that power, no interference should be made. That apart, Mr. Banerjee referred to the amendment to sub-section (xxi) of section 48(3) of the said Act as indicated hereinbefore and which was incorporated by Notification No. 2194-L dated 25th September, 1979. On such incorporation, it was claimed and contended by Mr. Banerjee that since the decisions as cited by Mr. Panja, were prior to such amendment, so they will have no application in the facts of this case and after such amendment, which empowers the authority concerned to grant or direct necessary extensions. 29. Mr. On such incorporation, it was claimed and contended by Mr. Banerjee that since the decisions as cited by Mr. Panja, were prior to such amendment, so they will have no application in the facts of this case and after such amendment, which empowers the authority concerned to grant or direct necessary extensions. 29. Mr. Ashoke Banerjee, appearing for the State of West Bengal, claimed that res judicata or principles analogous thereto, would not be applicable or available in this case, if not for the non-application of the provisions of the Civil Procedure Code, to proceedings under Article 226 of the Constitution of India, but these principles would not be applicable as there was no disposal of the is in the connected appeal, on merits. 30. In reply Mr. Giri, in fact, adopted the arguments of Mr. Sushil Kumar Banerjee on the effect of incorporation of section 48(3)(xxi) on amendment and he, in his usual fairness, contended that if the extension of route or terminus was considered and found to be effected, otherwise than for meeting the circumstances created by the M.T.P. works or such shifting was not found or considered to be a temporary one or for meeting the exigencies as mentioned hereinbefore, then the submissions of Mr. Panja would be of grant substance. He of course wanted to contend that extension of the routes, consequent on the shifting of the terminus, was necessiated for the M.T.P. works and the same being of a temporary nature, the mandatory provisions of section 57 were not required to be followed in this case. Mr. Giri opposed the submissions of Mr. Panja that the extension of the route or terminus, was not temporary in nature or that such extension upto Tobin Road was granted on the prayer of or at the instance of the applicant pliers. It was contended by Mr. Panja that the recent amendment to section 48(3)(xxi), would apply in the case of holders of the permit, in a concerned route, when their permits are going to be interfered with and more particularly when no non-obstante clause, was attached to the same. In that view of the matter, Mr. Panja claimed that the cases as cited by him, do also hold good even after the amendment. 31. On the submissions on res judicata, as put forward by Mr. Panja, agreeing with the submissions of Mr. In that view of the matter, Mr. Panja claimed that the cases as cited by him, do also hold good even after the amendment. 31. On the submissions on res judicata, as put forward by Mr. Panja, agreeing with the submissions of Mr. Ashoke Banerjee, I hold that if not under the provisions of the Civil Procedure Code, which says that they will have no application in proceedings under Article 226 of the Constitution of India, but also because of the admitted fact that there was no final determination of the lis on merits in the concerned appeal, they would not be applicable and available in this case. Such appeal was preferred against the ad interim order refusing to vacate, modify or vary the interim order as made on 30th November, 1981, and that too without disposing of the application dated 7th December, 1981, finally, and more particularly at a point of time when the learned Judge, on such refusal, directed the interim order as granted, would continue till the disposal of that application. Such admitted fact, in my view, also establishes that the application in question was not finally disposed of and as such, on the disposal of the appeal in the manner as indicated hereinbefore, would entitle and authorise this Court to decide the same finally and on merits now. Thus, the submissions of Mr. Panja on the aspect of resjudicata or application of principles analogous thereto, should fail. 32. Section 48(3)(xxi), on its amendment as mentioned above, contemplates a notice of not less than one month, in case the Regional Transport Authority concerned, wants to vary the conditions of permit and such variation would be subject to the other limitations that, in no case, the distance covered by the original route shall be altered by more than 24 Kilometers whether or not any such condition has been specified in the permit in pursuance of clause (i). Considering the language and the terms of the provisions, I find that the submissions of Mr. Considering the language and the terms of the provisions, I find that the submissions of Mr. Panja, that the said amendment has application or applies only in case of permit holders of the concerned route, are of substance and as such, following the other cases as cited at the Bar, I find that, if there is decision to extend a permit, overlapping the route of others, that would not only be a case of grant of a new permit, but would also be a case of alterations of the conditions attached to the permits of the other existing permit holders of the overlapped route and as such, the mandatory provisions of section 57(8) of the said Act, as Mini Buses, according to their manner and character of plying, are stage carriages, should have to be complied with. But, such provisions would not be required to be followed, in exceptional circumstances of temporary shifting of a terminus, for exigencies and circumstances as disclosed in this case, occur and so long such shifting, do not overlap the route of others. It cannot be said that in these days of growing public demand for more vehicles, overlapping of a route would not be permissible or possible. In appropriate cases to satisfy the need of the public, which is the first and foremost consideration under the said Act, overlapping the routes would be possible, subject to the fulfilment of the requirements of the said Act, viz., those whose routes would be overlapped, should be heard on their objections, if any. Overlapping of a route cannot also be forbidden as a matter of course, as in that event, the pliers on the route, will have a monopoly, which has its evil effects also. 33. In view of the above, the temporary shifting of the terminus, at least in respect of Route No. 164, to Desh Bandhu Park and that too for the emergent situation, arising out of the M.T.P. works, cannot be held to be improper and that too, on the basis and meaning of the word "shifting", as indicated hereinbefore. It should also be noted that the Deputy Commissioner of Police, Traffic Department, Calcutta, is no authority under the said Act and cannot deliberate on the grant, refusal or extension of a Route permit. It should also be noted that the Deputy Commissioner of Police, Traffic Department, Calcutta, is no authority under the said Act and cannot deliberate on the grant, refusal or extension of a Route permit. But, he would be acting within his powers, competence and jurisdiction, when he would point out the difficulties experienced by him, in the matter of controlling traffic. Thus, his request to the Secretary of the said Authority as in Annexure 'A' to the application, pointing out that immediate shifting of the terminus of Mini Buses, operating in Route, from Bhupen Bose Avenue to the eastern side of Raja Dinendra Street between Shyamlal Street and Nilambar Mookherjee Street, which the learned Advocate have referred to as Desh Bandhu Park, as a temporary measure and that too subject to the approval of the said addressee, was not unauthorised. If the matter had rested there, perhaps there would not have been a cause of any interference. 34. The difficulty has been created by the resolution dated 19th August, 1981 of the concerned Regional Transport Authority. By that resolution, the said Authority has directed extension of the said Route No. 164 (Bhupen Bose Avenue to B.B.D. Bag) upto Tobin Road, on the basis of recommendations for the shifting of the Route by the Deputy Commissioner of Police, Traffic Department, Calcutta as mentioned above and further, as there was a public demand, to have the Mini Bus facilities from Tobin Road. As mentioned above, the recommendations of the Police Authorities was for extensions of Route No. 164 only and to the extent as indicated above and there was no recommendation for the shifting of Route No. 163. Even then, the terminus of both the routes were directed to be shifted to Tobin Road and as mentioned earlier, one stoppage ahead of the route of the petitioners in the Rule and with a lesser fare structure. Not only such overlapping of the Route, but also the lesser fare structure will, certainly affect the petitioners adversely and as such, they can very well and reasonably ask for opportunities of objections and consideration of them, under the provisions of the said Act. Such overlapping would have the effect of the grant of a new permit or interference with the term, of the permits as held by the petitioners. It should further be mentioned that on my asking, Mr. Such overlapping would have the effect of the grant of a new permit or interference with the term, of the permits as held by the petitioners. It should further be mentioned that on my asking, Mr. Sushil Kumar Banerjee, the learned Advocate for the said Authority concerned, on production of records, stated that there has been a mass representation by about 4,000 people, for shifting, as has been done. Thus, there is admittedly a public demand and need for such shifting and the power of the concerned Regional Transport Authority, are there to have such extension, on following the requirements of the statute, the particulars whereof have been mentioned hereinbefore. Such requirements, in my view, are not directory but are mandatory in nature. 35. In view of the above, the subsequent extension of the terminus of concerned Routes to Tobin Road, was not proper and such extension should not be given effect to, till the procedures under the said Act as indicated hereinbefore, are followed and complied with. Mr. Panja's objections against the extension of the terminus of Route No. 163 have been recorded hereinbefore. He, of course, made it clear that if the Mini Buses of that route, ply on their existing route, or on any extension unless due to such act, their routes are overlapped, the petitioners would have no grievance. As mentioned also, there was no recommendation of the temporary shifting of the terminus of Route No. 163 and such recommendation, was only in respect of Route No. 164. On the basis of the concession of Mr. Panja in respect of Route No. 163, I think the original extension as granted, is not thus required to be interfered with as in that event, there would be no overlapping of the route to the prejudice of the petitioner either by pliers of Route No. 163 or 164. 36. The application is, thus, disposed of with the directions that the initial temporary shifting of the terminus of the concerned routes, may be given effect to, but the subsequent extension of the terminus upto Tobin Road should not be given effect to. This order would not, of course, fetter the hands of the Regional Transport Authority to grant the necessary extension of the Routes upto Tobin Road, if advised, after duly following the requirements of the statute. There will be no order as to costs.