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1999 DIGILAW 382 (CAL)

Kahinur Begum v. State of West Bengal

1999-07-21

BARIN GHOSH

body1999
JUDGMENT The petitioner is the owner of a Bus bearing Registration No. WB-57/3180. The petitioner was from time to time permitted to ply the said Bus in replacement of a Bus bearing No. WGE-1359. The Bus bearing No. WGE-1359 did not have a permanent permit. It was permitted to ply on temporary permits. At one stage, despite receipt of fees for grant of a temporary permit, no temporary permit was granted in favour of the petitioner in respect of the Bus bearing No. 2557/3180. The petitioner, thus, approached this Court by filing a writ petition and an order was passed by this Court on the said application being W.P. No. 2557(W) of 1999 on 18th February, 1999, directing the concerned authorities to take steps for granting temporary permits to the petitioner on the route, in question in accordance with law within one month from the date of communication of that order. There is no dispute that in terms of the said direction of this Court, a temporary permit was granted to the petition. 2. In the meantime, the petitioner had applied for grant of permanent permit in respect of the same Bus and for the same route on which the petitioner was granted occasional temporary permits. That application was not considered. The petitioner, thus, approached this Court by filing a writ petition and that writ petition being W.P. No. 21162(W) of 1998 was disposed of on 23rd December, 1998, whereby this Court directed the authority concerned to consider and dispose of the said application by the petitioner for grant of a permanent permit within two months from the date of communication of the order. Pursuant to the said order dated 23rd December, 1998, it is claimed by the respondents that the matter was considered by the concerned authority whereupon the impugned order dated 19th March, 1999 had been passed. Pursuant to the said order dated 23rd December, 1998, it is claimed by the respondents that the matter was considered by the concerned authority whereupon the impugned order dated 19th March, 1999 had been passed. Principally on two fold grounds, this order has been challenged-namely - (1) the applications for grant of a permanent stage carriage permits are required to be considered by the Regional Transport Authority and it is that authority who has to take a decision thereon and it is not permissible for the Secretary of such Regional Transport Authority to consider and decide such applications and since the order impugned shows that the application of the petitioner for grant of permanent stage carriage permits has been considered and decided upon by the Secretary, Regional Transport Authority, the order impugned is without jurisdiction; and (2) the ground on which the application has been rejected are not tenable, the learned Counsel, for the respondents, relying on Section 89 of the Motor Vehicle Act, 1979, has submitted that since the petitioner has a statutory right of appeal against the order impugned, this writ petition should not be entertained. The learned Counsel, for the respondents, however, missed the text of Section 89 of the said Act. It provides that being aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit or by any condition attached to a permit granted to him, a person may prefer an appeal to the State Transport Appellate Tribunal. Section 89 does not give any right of preferring an appeal against an order passed by the Secretary, Regional Transport Authority, for the simple reason that in the matter of grant or non grant, it is either the S.T.A. or the R.T.A. alone and not by any individual Officer of such authority can decide the matter. The order impugned being not an order of the R.T.A. but by its Secretary, the same is no order in terms of the provisions contained in the Motor Vehicles Act, 1979. If the same is claimed to be an order under the said Act, as is being claimed by the respondents, the same is totally without jurisdiction. 3. That apart, two reasons have been given in the order impugned for rejecting the application of the petitioner for grant of permanent stage carriage permit. If the same is claimed to be an order under the said Act, as is being claimed by the respondents, the same is totally without jurisdiction. 3. That apart, two reasons have been given in the order impugned for rejecting the application of the petitioner for grant of permanent stage carriage permit. First being that the petitioner had once given, along with her application for grant of a temporary permit, a declaration mentioning that she will never claim permanent permit to ply her Bus on the said route and stop plying the Bus on the route as soon as Bus No. WGE-1359 will start plying on the routes and second being that the prayer for issuing the permanent permit to the petitioner is dependent upon the owner of Bus No. WGE-1359 falling to ply back the said Bus within a reasonable time. 4. A declaration that the applicant will not claim permanent permit is not a requirement for consideration of his application for grant of a temporary permit. For such declaration, thus, an application for grant of permanent permit cannot be rejected. A declaration by the applicant for a temporary permit to the effect that she would stop plying her Bus on the route as soon as the Bus, in replacement of which the temporary permit is being granted to her, will start plying may be a requirement for grant of temporary permit to ply a Bus in replacement of an other Bus. But such a declaration cannot be insisted upon for issuance of a temporary permit in replacement of a Bus permitted to ply on a temporary permit. These declarations have been obtained by the R.T.A., Murshidabad. These have been obtained by them illegally and to give undue preferential treatment to the owner of Bus No. WGE-1359 for reasons which have not been disclosed in the affidavit-in-opposition I deprecate such action on the part of the R.T.A., Murshidabad. 5. The Bus bearing No. WGE-1359 at the best had a temporary permit. According to the impugned order itself, the said Bus is not in road worthy condition. The same requires repair for putting the same on road. 5. The Bus bearing No. WGE-1359 at the best had a temporary permit. According to the impugned order itself, the said Bus is not in road worthy condition. The same requires repair for putting the same on road. It is surprising that the Secretary, R.T.A., Murshidabad, in the impugned order is apprehending that the bus bearing No. WGE-1359 will be put back on the route when, in fact, it has no permit to ply the same as its temporary permit is no longer subsisting. Surprises in this matter are galore. It is further surprising that the Bus bearing No. WGE-1359, which has no permit at present to ply is standing on the way of the petitioner’s application for permanent stage carriage permit being considered. The question is for whose benefit the Secretary, R.T.A., Murshidabad, is preserving this permit. Is it for the owner of Bus being No. WGE-1359 and if so, why has not been explained? The question is how and from which authority the Secretary, R.T.A., Murshidabad, can take steps to preserve a route for the benefit of a particular person who does not even have in praesenti a Bus which is road worthy? The entire action show mala fide on the part of the Secretary Regional Transport Authority, Murshidabad, Sri G. Majumdar. The order impugned in this writ petition in not an order which is expected from a responsible Government Officer. For non-consideration of the application of the petitioner in accordance with law, the petitioner has not only been made to run to this Court twice - first by filing the writ petition being W.P. No. 21162 (W) of 1998 and later by filing the present writ petition but also has made the petitioner to suffer from anxiety without any reason whatsoever. 6. In those circumstances, I dispose of this writ petition by quashing the order impugned in this writ petition with costs assessed at Rs. 5,000/- to be paid by the State Government to the petitioner within 15 days from the date hereof reversing liberty to the State Government to recover such costs from the salary of Mr. G. Majumdar, the Secretary, Regional Transport Authority, Murshidabad, who is instrumental to bring into existence the order impugned in this writ petition. 5,000/- to be paid by the State Government to the petitioner within 15 days from the date hereof reversing liberty to the State Government to recover such costs from the salary of Mr. G. Majumdar, the Secretary, Regional Transport Authority, Murshidabad, who is instrumental to bring into existence the order impugned in this writ petition. It is made clear that the R.T.A., Murshidabad shall considered the application of the petitioner in accordance with law and in terms of the order of this Court dated 23rd December, 1998, passed in W.P. No. 21162 (W) of 1998; but the time to consider the said application is extended by one month from today. It shall be the obligation of the learned Counsel for the respondent, to communication this order to his client, i.e. Regional Transport Authority, Murshidabad, as quickly as possible. The decision on the application of the petitioner shall be communicated to the petitioner within 15 days from the date of the decision. Let an urgent xerox certified copy of this order, if applied for, be delivered to the learned Advocate, for the petitioner.