Kalipada Pathak v. State of West Bengal — 1997 DIGILAW 436 (CAL)

JUDGMENT Samaresh Banerjea, J. Common questions of law and fact being involved in all the present writ petitions the same have been heard analogously. 2. In all the writ petitions the questions of law which have come up before this court for determination is whether under the provisions of the Motor Vehicles Act and the Rules made thereunder a stage carriage operator operating a stage carriage under a valid permit in one particular route can ask for change of the route in respect of the vehicle in question and is entitled to obtain the same on the ground that the existing route where the vehicle is already being plies is not economically viable and whether on such an application made by a stage carriage operator the Transport Authority can allow such prayer mechanically by cancelling its permit in the existing route to enable to him to withdraw the vehicle from the existing route to enable him to ply the same in a new route under a new permit without considering the hardship and difficulties to be faced by members of the travelling public in the existing route. 3. It may be noted that in all the writ petitions the writ petitioners applied for such change of route on the ground that the existing route is not economically viable. 4. In the case of Kalipada Pathak & Ors. vs. State of West Bengal being C.O. No. 18163 (W) of 1996 the writ petitioners no. 1 to 8 who are residing within the areas of Biren Roy Road East, Calcutta-41 and the petitioners no. 9 to 22 who are the existing mini bus operators in the route from Thakurpurkur to B.B.D. Bag have challenged the action of the Regional Transport Authority, Calcutta to accept the application of the respondent no. 5 Shri Sukumar Goswami, who is already operating a stage carriage under a permanent permit in the route Karunamoyee to Phool Bagan, for change of the same to the route Thakurpukur to B.B.D. Bag. 5. It is the contention of the petitioners that the commuters of areas of Biren Roy Road (East) have been suffering from acute transport problem day to day since long because there is no other buses or mini buses except the mini bus in the route in question which again according to the petitioners is not sufficient. 5. It is the contention of the petitioners that the commuters of areas of Biren Roy Road (East) have been suffering from acute transport problem day to day since long because there is no other buses or mini buses except the mini bus in the route in question which again according to the petitioners is not sufficient. It is the contention of the petitioners that a number of buses in the said route have already been withdrawn and withdrawal of the mini bus in question of the respondent no. 5 will create more inconvenience and hardship to the commuters of the Biren Roy Road (East) and the same will also hamper the interest of transport business carried on by the operators in the route Thakurpukur to B.B.D. Bag. 6. It is the further contention of the petitioners that although under section 80(3) of the M.V. Act an application to vary the condition of permit other than a temporary permit by the inclusion of a new route or routes or a new area by altering the route or routes or area covered by it shall be treated as an application for grant of a new permit, the same will not entitle an existing operator of a route to apply for change of route in respect of the same vehicle and the transport authority also cannot entertain and consider such an application, although such operator may apply for fresh permit for any other route in respect of another vehicle; but so long as a vehicle is covered by one permit on a particular route, application for permit in respect of the self-same vehicle cannot be made for a different route. It is the further contention of the writ petitioners that the Regional Transport Authority cannot also permit the respondent no. 5 to withdraw vehicle from the existing route and apply the same in different routes only in the interest of the operators in question in utter disregard of the inconvenience and hardship which will be caused to the travelling public of the existing route by withdrawal of the vehicle from the same route, particularly, when the transport authorities being a statutory body is required to act fairly, reasonably and in public interest and not against public interest. 7. Before adverting to stand of the transport authorities as also the respondent no. 7. Before adverting to stand of the transport authorities as also the respondent no. 5 in this case it is pertinent to record that the respondent no. 5 Sri Sukumar Goswami who applied before the Regional Transport Authority, Calcutta for such change of route moved a writ application before this court being C.O. No. 4995 (W) of 1995 previously complaining of inaction on the part of the Regional Transport Authority in considering such application whereupon after giving directions for affidavits in the aforesaid case and directing the matter to appear as a "contested application" six weeks after re-opening of the High Court, it was further directed that during the pendency of the writ application the Regional Transport Authority, Calcutta without prejudice and rights of both the parties shall consider such prayer of the petitioner (respondent no. 5 herein) for change of his route in accordance with law after giving him a hearing and the decision of the Regional Transport Authority shall be placed before the court. 8. It now appears that pursuant to such direction not only the Regional Transport Authority after considering such application decided to allow such prayer of the respondent no. 5 herein, the said decision was never placed before this court and the Regional Transport Authority, Calcutta has actually granted and issued a permit to the respondent no. 5 herein in the new route, cancelling his permit in the existing route. 9. It has, however, been alleged by the respondent no. 5 in the present writ petition in course of hearing that despite such issue of permit in the new route as aforesaid it is because of the physical resistance of the present writ petitioners that respondent no. 5 has not been able to ply the vehicle in the new route although in the mean time his permit in the existing route has been cancelled as a result whereof he suffered serious prejudice which allegation, however, has been disputed and denied by the present writ petitioners. 10. Such conduct of the Regional Transport Authority, Calcutta, however, cannot but be deprecated by this court, as it appears to this court that for the Regional Transport Authority, Calcutta there could not have been any scope of misconstruing the direction passed by this court in the aforesaid writ petitions of the respondent no. 10. Such conduct of the Regional Transport Authority, Calcutta, however, cannot but be deprecated by this court, as it appears to this court that for the Regional Transport Authority, Calcutta there could not have been any scope of misconstruing the direction passed by this court in the aforesaid writ petitions of the respondent no. 5 herein that after taking the decision the same shall be placed before this court and therefore there could not be any justification in actually issuing the permit. When such an order was passed by this court the same was passed obviously for the intention of examining the validity and legality of the same. Although the ld. Advocate appearing for the Regional Transport Authority has strenuously argued to justify such action by contending that as there was no interim order restraining the Regional Transport Authority from issuing such permit without first of all placing their decision before this court as directed no permit could have been issued. The Regional Transport Authority has further sought to justify its action in granting the permit in the new route and to cancel the permit in the old route by contending, inter alia, that the Regional Transport Authority cannot compel operator to ply in a route which is not viable, notwithstanding the fact self-same Regional Transport Authority in C.O. No. 4995 (W) of 1996 as also in many other cases where similar applications were made did not pass any order on such applications for month's together and some times even for more than a year. 11. In fact, the other writ petitions which have been heard analogously with the present writ petition were moved by each of the writ petitioner complaining against inaction of the transport authorities in considering and disposing of similar applications for change of routes. 12. After considering all aspects of the matter, I am of the view that such action of the Regional Transport Authority, Calcutta, is certainly contumacious and by such Act the Regional Transport Authority violated the order of the court and attempted to overreach the order of the court. 13. Since, however, a stand has been taken that such steps were taken by the Regional Transport Authority under legal advice, therefore, being of the view that such violation of the order of the court was not wilful and deliberate, I refrain from drawing up proceeding of contempt against the Regional Transport Authority, Calcutta. 13. Since, however, a stand has been taken that such steps were taken by the Regional Transport Authority under legal advice, therefore, being of the view that such violation of the order of the court was not wilful and deliberate, I refrain from drawing up proceeding of contempt against the Regional Transport Authority, Calcutta. 14. The respondent no. 5 herein, Sukumar Goswami, has challenged the maintainability of the present writ petition at the instance of the petitioner nos. 9 to 22 who are the existing operators in the route Thakurpukur to B.B.D. Bag in respect of which the respondent no. 5 has applied for grant of new permit. Referring to the decision of the Supreme Court, in the case of Mithilesh Garg vs. Union of India reported in AIR 1992 SC 443 , it has been contended that existing operators have no right to object to a new entrant in the route. So far as the petitioner nos. 1 to 8 are concerned, it has been contended that the said writ petitioners not having furnished the residential addresses the writ petition should not be entertained at their instance. It is also contended that the respondent no. 5 in the affidavit that the area in question is covered by other stage carriage services, namely, route no. 21/12C/1B and Mini Bus route no. S-11A and S-31 operated by Calcutta State Transport Corporation. It. is also the contention of the respondent no. 5 in his affidavit-in-opposition that such change of route is permissible under the provisions of section 80(3) of the M.V. Act 1988. 15. The Regional Transport Authority in its affidavit-in-opposition has contended, inter alia, that the application of the respondent no. 5 has been treated as application for new permit under section 80(3) of the M.V. Act and a permit has been granted in the route Thakurpukur to B.B.D. Bag simultaneously cancelling the old permit in the route Karunamoyee to Phool Bagan. 15. The Regional Transport Authority in its affidavit-in-opposition has contended, inter alia, that the application of the respondent no. 5 has been treated as application for new permit under section 80(3) of the M.V. Act and a permit has been granted in the route Thakurpukur to B.B.D. Bag simultaneously cancelling the old permit in the route Karunamoyee to Phool Bagan. It is the further contention of the said respondents that it was not really a case for change of route but cancellation of the existing permit and grant of a new permit in another route and an operator may apply for new permit of his choice if he suffers continuous loss of earning on the existing route and the Regional Transport Authority, Calcutta, has nothing to do if an operator desires to withdraw his vehicle from a route due to different problems. 16. Mr. Kashikanta Moitra, the ld. Senior Counsel appearing on behalf of the writ petitioners in the case of Kalipade Pathak has submitted, inter alia, that such change of route in respect of a particular vehicle cannot be permitted under the provisions of the M.V. Act and the Rules made thereunder by allowing a particular operator to withdraw his vehicle from the existing route and allowing him to ply the same in a new route in total disregard of the public interest, namely, the interest of the travelling public which will be seriously prejudiced by such act, and only to cater the private interest of a particular operator. It has been submitted that the provisions of section 80(3) do not permit the same at all. It is further submitted that the respondent no. 5 never having applied for a new permit under the provisions of section 72 of the Act will not be attracted at all nor the prayer for change of a route can be treated at all as a variation of a condition of an existing permit within the meaning of section 80(3) of the Act. 5 never having applied for a new permit under the provisions of section 72 of the Act will not be attracted at all nor the prayer for change of a route can be treated at all as a variation of a condition of an existing permit within the meaning of section 80(3) of the Act. It has been submitted that even assuming that such a prayer for variation of a condition of permit under section 80(3) of the Act can be made the same cannot be allowed mechanically by the Regional Transport Authority as it has been done in the instant case but only if the Regional Transport Authority is satisfied that such variation will serve the convenience of the public; and that it was not expedient to grant a separate permit in respect of original route or extended route or any part thereof. 17. It has been submitted that in the instant case, there is nothing in the order to show that such alleged variation has been made for the convenience of the travelling public, on the contrary it is apparent, the same has been granted for the personal convenience of the respondent no. 5. 18. Mr. Malay Kr. Basu the ld. Senior Counsel appearing for the respondents has, firstly, contended that the writ application is not maintainable in as much as some of the writ petitioners are existing operators in the route in respect to which the permit of the respondent no. 5 has been transferred and it is now well settled because of the decision of the Supreme Court in the case of Mithilesh Garg vs. Union of India reported in AIR 1992 SC 443 that an existing operator cannot object to the entry of a new operator in the route. 19. It has been further submitted that rest of the petitioners who are claiming themselves as the residents of the area have not given even their address and, therefore, no writ petition can be maintained at their instance, there being nothing in the record to show that they are the residents of the area in question and, therefore, will suffer because of withdrawal of the vehicle from the original route. 20. 20. As to the challenge of the respondent No. 5 to the maintainability of the writ petition, I am of the view, the writ petitioners No. 1 to 8 who are residents of the area in question are certainly entitled to maintain the present writ petition. 21. Although the said writ petitioners in the writ petition did not give the residential address, the same have been furnished in their affidavit-in-reply. Being the residents of the area they can certainly maintain the present writ petition being arrived by the action of the Regional Transport Authority, Calcutta in seeking to permit the respondent No. 5 to withdraw the vehicle in question which will result in the decrease in the number of stage carriages operating in the area causing inconvenience to the travelling public. Consequently being aggrieved by such action of the Regional Transport Authority, Calcutta, it is certainly open to them to challenge the legality and the propriety thereof. As regards the petitioners No. 9 to 22, however, who are admittedly the existing mini bus operators in the route from Thakurpukur to B.B.D. Bag they, however, in view of the decision of the Supreme Court in the case of Mithilesh Garg vs. Union of India are not entitled to challenge the action of the Regional Transport Authority. Calcutta in seeking to grant permit to the respondent No. 5 in the said route Thakurpukur to B.B.D. Bag on the ground the same will hamper the transport business. 22. But for the aforesaid reason the writ petition cannot fail as the petitioners No. 1 to 8 who are the residents of the area are entitled to maintain the writ petition for the reasons stated above. 23. It has also been submitted by Mr. Basu that the Transport Authority has the power to alter the route in respect of a particular vehicle under the provisions of section 80(3) of the M.V. Act which empowers the Transport Authority to vary the conditions of the permit, inter alia, by inclusion of a route and such alteration has been made as it became necessary under section 72(2)(i) of the M.V. Act which provides, inter alia, the vehicle shall be used only in specified area or specified route or routes. 24. In support of his contention that such change of route is permissible under the provisions of section 80(3) of the M.V. Act, reliance has been placed by Mr. 24. In support of his contention that such change of route is permissible under the provisions of section 80(3) of the M.V. Act, reliance has been placed by Mr. Basu in the unreported judgment of Ajoy Nath Ray, J., in the case of Sankar Kr. De vs. State of West Bengal & Ors., (Matter No. ........................of 1992 disposed of on June 24, 1993), and another unreported judgment of Satyabrata Sinha, J., in the case of Smt. Aparna Das vs. State of West Bengal & Ors., being C.O. No. 1517 (W) of 1995 and also on an unreported Division Bench judgment in the case of Debasis Chkraborty vs. State of West Bengal and Ors., (Appeal No. .................. of 1988). 25. In the other pending writ petitions similar arguments have been advanced on behalf of both the parties. 26. After considering the respective submissions of the parties and considering the writ applications, I am, however, unable to accept the contention of the applicants for change of route that such change is permissible under the provisions of section 80(3) read with section 72 of the M.V. Act. 27. After careful consideration of the various provisions of the M.V. Act 1988 and the Rules made thereunder it does not appear to this court that any provisions of the said Act or the Rules provides for such change of route. 28. Careful examination of the provisions of section 80(3) will indicate that although under sub-section 3 of the said section conditions of any permit can be varied, inter alia, by altering the route or routes or area covered by it, the aforesaid provisions really do not help the operators who have applied before the transport authorities for changing the route of the vehicle in question from the existing one to the new one. 29. Although sub-section (3) of section 80 empowers the transport authority to vary the conditions of any permit other than a temporary permit by inclusion of a new route or routes or a new area even by altering the route or routes or area covered by it, the second proviso to the said sub-section makes it clear that in case of such variation in the permit the termini shall not be altered and the distance covered by the variation shall not exceed 24 Kms. 30. 30. The aforesaid second proviso to the said sub-section, therefore, makes it abundantly clear that section 80(3) inter alia, deals with variation of the conditions of permit by inclusion of a new route and area, by alteration of route, by exclusion of the route and thereof and although under sub-section (3) of section 80 of the Act the Transport Authority may vary the conditions of any permit by altering the route or routes or any area covered by it, such alteration of the route can be made only in such manner that the termini shall not be altered and the distance covered by the variation shall not exceed 24 Kms. Therefore, by such alteration altogether a new route having different termini and having a variation beyond 24 Kms. cannot be made under sub-section (3) of section 80 of the Act. Mr. Basu has drawn the attention of the court to section 72(2)(i) of the Motor Vehicle Act 1988 which provides, inter alia, that the Regional Transport Authority may grant permit for a stage carriage of a specified description and may subject to any rules that may be made under this Act, attach to the permit anyone or more of the conditions enumerated thereunder including the condition that the vehicle shall be used only in a specified area, or on a specified route or routes. 31. It has been submitted by Mr. Basu relying on the aforesaid provisions of the Act that a particular route in which the vehicle has to ply under a permit is a condition of the permit and the aforesaid provisions of law empowers the Transport Authority to specify the route or routes meaning thereby more than one route can be specified in the permit and consequentially a stage carriage by the grant of permit cannot be said to be committed to a particular route and, therefore, change of route can, certainly, be permitted. 32. The provisions of section 72(2)(i) of the Act, in my view, however, does not help the respondent No. 5, in as much as, reading the aforesaid provisions along with section 80(3) of the Act will clearly indicate that if a vehicle is permitted to ply in more than one route the termini have to be the same. 32. The provisions of section 72(2)(i) of the Act, in my view, however, does not help the respondent No. 5, in as much as, reading the aforesaid provisions along with section 80(3) of the Act will clearly indicate that if a vehicle is permitted to ply in more than one route the termini have to be the same. That can be the only logical interpretation of aforesaid section 72(2)(i) of the Act and any other interpretation of the aforesaid provisions will lead to an absurd situation and under section 72(2)(i) of the Act in consistent with the second proviso of section 80(3) of the Act. 33. If the contention of Mr. Basu is accepted the result will be, the transport authority will be empowered to specify more than one routes entirely different from each other with termini in respect of a particular vehicle and the stage carriage operator according to his whims will be entitled to operate stage carriage in any of routes specified in the permit he chooses to do so or to ply the stage carriage in one route one day and in another on another day. 34. While a stage carriage operator no doubt in exercise of fundamental rights under Article 19 of the Constitution of India and is entitled to choose any business or occupation of his choice and consequently can carryon the business of stage carriage operation, the State is empowered to put reasonable restrictions on such fundamental rights of the stage carriage operator. Various provisions of the Motor Vehicles Act which have been introduced for the purpose of regulating and controlling, inter alia, the operation of stage carriage, are nothing but such reasonable restrictions on the right of stage carriage operators. Various provisions for controlling and regulating the aforesaid right of the stage carriage operators under the Motor Vehicles Act, inter alia, have been framed for protecting the interest of the travelling public which is undoubtedly a public interest. 35. Various provisions for controlling and regulating the aforesaid right of the stage carriage operators under the Motor Vehicles Act, inter alia, have been framed for protecting the interest of the travelling public which is undoubtedly a public interest. 35. Just as a stage carriage operator in exercise of his fundamental right to carryon his business of his choice, carryon the business of the stage carriage and consequently has the right to choose a route of his choice, specially after the liberalisation in the matter of grant of permit in the present 1988 Act, the members of the travelling public who use such stage carriage from going from one place to another for their inter-city or intercity, inter-state or inter-state journeys are actually using such vehicles for enforcing their fundamental right guaranteed under Article 19 of the Constitution of India of free movement from one place to another. In the present day context with the development and modernisation of the transport system, the fundamental right of a citizen for free movement from one place to another cannot be a reality in absence of modern system of public transportation. The vast multitude of the people of the State of such transportation from one place to another has to depend on public vehicle, inter alia, stage carriages. 36. It is because of the aforesaid reasons it will appear from the scheme of the Act that various provisions have been made in the Act by which the interest of the travelling public is also protected. 37. In such view of the matter, no stage carriage operator who is plying stage carriage in a. particular route has any absolute or unqualified right to withdraw. his vehicle from a particular route whimsically and switchover to another, although, no doubt it is open to him in exercise of his fundamental right to carryon of the business of his choice and in consonance with the present liberalised policy as contained in 1988 Act to ply as many stage carriages he likes in different routes obtaining different permits in respect of different vehicles or to ply even more than one vehicle in a self-same route obtaining another permit in respect of another vehicle. 38. 38. Although it is sought to be contended that it is open to a stage carriage operator in consonance with the present liberalised policy under the 1988 Act to withdraw from a particular route whenever he chooses and to shift to another route after obtaining a permit in respect thereof, in my view, neither the liberalised policy nor the decision of the Supreme Court in the case of Mithilesh Garg vs. Union of India supports such a contention. Liberalised grant of permit only connotes simplification in the matter of grant of permit and to make the grant of permit a rule and refusal an exception. But withdrawal of a vehicle from a particular route by a stage carriage operator whenever he chooses to do so is certainly not a necessary corollary to such liberalised policy as the same is against public interest. Withdrawal of buses meanS reduction in the number of buses plying in a route which is bound to create inconvenience to the members of the travelling public and specially in a congested city like Calcutta where even after increase of number of buses in different routes, in proportion to the number of travelling public such number is always insufficient. 39. Liberalised grant of permit also; in my view, does not mean that the same will come to the aid of speculators or adventurers who taking advantage of the liberalised 'policy venture to enter into the business of operation of stage' carriage although may not have any experience or capability in respect thereof just to take a chance without even caring to do the necessary market survey in the concerned route as to its viability and subsequently failing to run the business properly in the route wants to switch-over to another one on the supposition that the new one would be more profitable. 40. An intending serious stage carriage operator who wants to take advantage of liberalised policy if he has the necessary expertise in the business only chooses the route after making proper market survey but would not rush to take a chance and thereafter being unable to run the business properly would like to switch-over to a new route on the ground that the existing one is not economically viable. 41. 41. I am not oblivious of the fact that there may be genuine and bona fide reasons for which a stage carriage operator may find that it is extremely difficult to carry on the business of stage carriage operation in his existing route and it would be impossible for him to exist in the business because of grave continuous loss either because of the bad road condition or otherwise, and in such a situation the transport authority may permit him to withdraw the vehicle from the existing route by surrender of his permit and granting him permit in a new route. That, however, does not really amount to a change of a route but grant of new permit on surrender or cancellation of the permit in the original route. But in such a situation such permission would be granted only if the applicant can satisfy that it is really impossible for him for bona fide reasons as aforesaid to ply the vehicle and to carry on the business in the existing route. 42. The fact, that an operator cannot stop plying his vehicle in a particular route at his whims and without permission from the Transport Authority will be evident from section 86(a) of the Act which empowers the Transport Authority to cancel and suspend the permit of a stage carriage operator, inter alia, on the breach of any of the condition of the permit. When a permit is granted to a stage carriage operator specifying a particular route or area, it is the condition of the permit that the vehicle must by plied in the said route or area and, therefore, a stage carriage operator at his whims cannot stop plying the vehicle on such a route in contravention of the condition of a permit and if he does so his permit can be cancelled and suspended. 43. It will, therefore, be evident from the aforesaid provisions of the Act also that such permission to withdraw a vehicle from a particular route can be granted by the Transport Authority only if it is satisfied that it is really not possible for the applicant/stage carriage operator to ply his vehicle in the existing route for bona fide reasons as aforesaid. Consequently, only if such prayer is allowed the question of granting permit in a new route in respect of the self-same vehicle will arise on an application to be made by the applicant. Such permission to withdraw, therefore, cannot be granted mechanically as the same will cause serious prejudice to the members of the travelling public. 44. It is pertinent to record in this connection that in none of the writ petitions it appears the applicants who applied for change of route has given any detailed particulars as to the alleged non-viability of the route or routes or alleged sufferings of financial loss. No facts and figures have been given at all and, therefore, there was no scope for the Transport Authority to examine the correctness of such allegations. 45. Mere allegation of non-viability of a route can hardly be a ground to grant such permission and if it is found on enquiry that it is not the non-viability of the route but inefficiency of the applicant to run his business properly, is the ground of his loss, to permit such an operator to surrender his permit in one route and to ply his bus in another route will be wholly against public interest as in the new route also he may sustain loss because of his own inefficiency. No such permission therefore should be granted to such an inefficient operator and if he is unable to face the competition with other operators he must be ready to go out of business. 46. Although the Transport Authority in their affidavit sought to support the stand of such applicants by contending that nothing can prevent an operator to surrender his vehicle in a route, the Transport Authorities being statutory authorities under the Act are under no legal obligation to help an inefficient stage carriage operator who suffers loss because of his inefficiency. The Supreme court in the case of Mithilesh Garg vs. Union of India, has clearly laid down that grant of permits should be liberalised so that there is a healthy competition and there should be more buses for the benefits of the travelling public and the inefficient operators may be phased out. 47. It is true, as it has been held by Ajoy Nath Ray, J, in the unreported judgment of Sankar Kr. 47. It is true, as it has been held by Ajoy Nath Ray, J, in the unreported judgment of Sankar Kr. De vs. State of West Bengal, that the Motor Vehicles Act does not permit handling of buses with routes and keeping buses blocked in a particular route. His Lordship has come to the said decision, inter aila, relying on the unreported Division Bench decision in the case of Debasis Chakraborty vs. State of West Bengal (supra). It has also been held by His Lordship in the said decision that the answer to the question whether the writ petitioner therein plying on an authorised permit in a particular route can take the buses off the route at any time he pleased during the continuance of the condition of his permit, is in the affirmative on the ground that a permit is no more than a permission granted to an owner of the bus the right to ply his vehicle for transport business and there is no compulsion in the matter of mere permission. 48. Similarly, Satyabrata Sinha, J, in the aforesaid case of Smt. Aparna Das (supra) has held relying on the said judgment of Ajoy Nath Ray, J, and of the provisions of section 80(3) of the Act that bare perusal of the aforesaid provisions indicates that when exigent situation arises such an application for change of route would be maintainable subject to certain restrictions made therein. 49. It, however, appears to this court that both Ajoy Nath Ray, J, as well as Satyabrata Sinha, J, have overlooked the second proviso to sub-section (3) of the section 80 and section 86 of the Motor Vehicles Act. 50. As pointed out hereinbefore the second proviso to sub-section (3) of section 80 makes it clear that under the aforesaid provisions while varying the conditions of permit by altering the route or routes, the termini cannot be altered and the distance covered by variation shall not exceed 24 Kms. which clearly indicates such alteration will not permit an alteration when altogether a new route having a different termini and having variation exceeding not more that 24 Kms. is asked for. which clearly indicates such alteration will not permit an alteration when altogether a new route having a different termini and having variation exceeding not more that 24 Kms. is asked for. Similarly, Their Lordships overlooked the provisions of section 86(1)(a) of the Act which empowers the Transport Authority to cancel or suspend the permit of a stage carriage operator on the breach of any of the provisions contained in the permit which will obviously include non-plying of a stage carriage in a particular route and, therefore, certainly no stage carriage operator has the right to stop plying of a vehicle according to his whims and caprice affecting public interest, namely, the convenience of the travelling public. 51. The aforesaid decisions having been rendered by Their Lordships overlooking the aforesaid provisions of the Act and law, in my view, are per in quirium and, therefore, are not binding upon me. 52. It also appears that Their Lordships overlooked the question of affectation of public interest, namely, the interest of the travelling public by whimsical or arbitrary withdrawal of a vehicle from the route by a stage carriage operator. 53. In the case of Debasis Chakraborty vs. State of West Bengal (supra) a Division Bench of this Hon'ble Court has held, inter alia, that although there is no provisions under the M.V. Act which prohibits such transfer or change of permit, it has not been held by Their Lordships that an operator can withdraw his vehicle at his whim or without permission or the Transport Authority is bound to allow his application; on the contrary after holding that no vehicle can said to be committed to a particular route, it was held further that if the operator finds that it is not a viable route the operator can always make application before the authority concerned for the change of the route and it is incumbent on the authorities to consider such application in the light of the relevant facts and circumstances. 54. 54. Since, however, Their Lordships have not held that such change of route can be permitted under section 80 (3) of the Act nor it has been specified by Their Lordships under which provisions of the Act such change is permissible, (Their Lordships being of the view since no provisions of the Act such change of route is prohibited the same can be allowed), and since there is no provisions of the Act under which such change of route can be permitted, the aforesaid expression used by Their Lordship "change of route" would obviously mean that in a fit and proper case the Transport Authority can permit a stage carriage operator to withdraw a vehicle from a route and thereafter can grant him a new permit in a new route in his application. 55. For the reasons stated above I am, therefore, of the view under no provision of the Motor Vehicles Act "change of route" can be permitted. Under section 80(3) of the Motor Vehicles Act alteration of the route can be permitted only when such alteration would not exceed 24 Kms. and when the termini remains the same and that too in public interest. Under the said provision altogether a new route beyond 24 Kms. having a separate termini cannot be granted, nor the same can be granted under section 72 of the Motor Vehicles Act for the reasons stated above. 56. It will, however, be open for an existing operator to pray for surrendering his existing permit in the concerned route when it becomes impossible for plying the vehicle because of sufferance of continuous financial loss, which results not from his inefficient administration in the matter of operating the vehicle, but because of damaged road conditions or non-existence of the road or for any other reasonable and genuine bona fide ground. 57. But an operator cannot withdraw his vehicle from the existing route whimsically affecting the interest of the travelling public and obtain a new permit in the different routes after surrendering the permit in the existing route on filmsy ground. 57. But an operator cannot withdraw his vehicle from the existing route whimsically affecting the interest of the travelling public and obtain a new permit in the different routes after surrendering the permit in the existing route on filmsy ground. The transport authorities while considering such prayer of an operator certainly cannot allow such prayer of the operator mechanically without application of the mind; but the transport authorities are duty bound while considering such prayer of an operator also to consider the resultant inconvenience to be caused to the travelling public in the concerned route for reduction in their number of buses and whether it has really become impossible for the concerned operator to operate the stage carriage any further for bona fide and cogent reasons as mentioned above and to examine all the particulars, documents (like audited profit and loss account etc.) to be furnished by the applicant. After such consideration the Transport authority must pass a reasoned and speaking order. 58. Keeping in mind of the above principle of law, if now the case of Kalipada Pathak C.O. No. 18163(W)/96 is considered, it will appear neither the respondent No. 5 in his application before the Transport Authorities indicated the reasons clearly giving all the necessary details and particulars as to why the route in question according to him is not viable for which he is suffering loss nor the Regional Transport Authority, Calcutta while considering such prayer has applied its mind or even considered the interest of travelling public or has recorded proper reason. 59. There is nothing in the order passed by the transport authority permitting the surrender of the permit by the respondent No. 5 granting a new permit in respect of the new route wherefrom it can be ascertained that the transport authority really applied its minds to all aspects of the matter and that the transport authority ever considered the prejudice which is likely to be caused to the members of the travelling public and the residents of the locality. 60. The order passed by the Regional Transport Authority Calcutta, therefore, accepting the surrender of the permit of the respondent No. 5 in his existing route and in granting a new permit in the new route cannot be sustained and the same is hereby set aside. 61. 60. The order passed by the Regional Transport Authority Calcutta, therefore, accepting the surrender of the permit of the respondent No. 5 in his existing route and in granting a new permit in the new route cannot be sustained and the same is hereby set aside. 61. The matter is sent back to the Regional Transport Authority, Calcutta for fresh consideration of the prayer of the respondent No. 5. The respondent No. 5, however, shall submit a fresh application in respect of his aforesaid prayer wherein he must give all the details with all necessary particulars and facts and figures and documents in support of his suffering including audited profit and loss account explaining in how and in what manner he is suffering loss and why the existing route is non-viable. Within 2 months of the receipt of this application the Regional Transport Authority after holding the necessary enquiry as to the correctness of claim to be made by the respondent No. 5 shall dispose of the same in accordance with law and in the light of the present judgment after giving reason. 62. In view of the fact that the permit of the respondent No. 5 in the existing route has already been cancelled, to prevent hardship to the respondent No. 5 the Regional Transport Authority shall grant a temporary permit to the respondent No. 5 for a period of 3 months in the old route in the mean time. 63. So far as the other writ petitions are concerned which have been heard analogously being Nos. C.O. 4995(W)/1996, C.O. 1268(W)/96, C.O. 7199(W)/96, C.O. 7946(W)/ 1996, C.O. 7246(W)/96, C.O. 7947(W)/96, C.O. 9292(W)/96, C.O. 11532(W)/96, C.O. 12350(W)/96, C.O. 14109(W)/96, W.P. 7894(W)/1997, C.O. 9291(W)/96, C.O. 19734(W)/97, C.O. 10162(W)/97, W.P. 10043(W)/97, in each of the case the writ petitioners will be at liberty to make fresh application before the Regional Transport Authority giving detailed particulars as stated above and each of such application shall be disposed of by the concerned R.T.A. in accordance with law and in the light of the present judgment within 2 months from the communication of this order. 64. All the writ applications are, thus, disposed of. 65. There will be no order as to costs. 66. Let a plain copy of the operative portion of this judgment be given to the learned Advocates for the respective parties, on usual undertaking. Writ applications disposed of.