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2007 DIGILAW 872 (CAL)

State of W B v. Bidyut Kundu

2007-12-14

PRASENJIT MANDAL, PRATAP KUMAR RAY

body2007
JUDGMENT:- (1). CHALLENGING the judgment and order dated 24th november, 2006 passed by the learned Trial Judge in WP No. 1605 of 2006 this appeal has been preferred by the State respondents. By the impugned judgment under appeal learned Trial Judge passed a mandatory order directing the Regional Transport Authority, Howrah, to issue a stage carriage permit by extending the life of offer letter as issued on 7th July, 2003 which faced the natural death in view of the statutory provision under Rule 141 of the West Bengal Motor Vehicles Rule, 1989. (2). THE fact of the writ petition was very short. The writ petitioner was offered to place his vehicle for grant of stage carriage permit. The Regional transport Authority, Howrah by its communication dated 7th July, 2003 directed the petitioner to place his vehicle within three months from the date of issuance of the offer letter. This offer letter breathed its last. After three months the vehicle was not placed. Thereafter, after long three years this writ petition was moved seeking placement of vehicle and the learned trial Judge passed the impugned judgment. The impugned judgment under appeal is as follows: "since the petitioner is in a position to produce a vehicle equipped with bharat Stage III exhaust system, let the offer letter issued on 7.7.2003 be treated to be valid and the validity of the said offer letter will continue for a further period of four weeks from date. The Regional Transport Authority, Howrah, is directed to issue the stage carriage permit, as sought for by the petitioner, provided the petitioner complies with the other conditions of the offer letter and provided there exists any vacancy. However, it is pointed out by Mr. Mukherjee, learned advocate for the petitioner, that in view of the restraint order, the vacancy could not be filed in and the vacancy therefore still exists as no advertisements have since been made by the Regional Transport Authority inviting applications for filling in the vacancy or vacancies from the intended operators to operate their vehicles on the route in question. Such permit will be issued within a week from the date of compliance of the conditions of the offer letter. All parties concerned are to act on a xeroxed signed copy this order on the usual undertakings. " (3). Such permit will be issued within a week from the date of compliance of the conditions of the offer letter. All parties concerned are to act on a xeroxed signed copy this order on the usual undertakings. " (3). THE only consideration passed in the appeal is impact of Rule 141 of the west Bengal Motor Vehicles Rules, 1989. The said provision reads as follows: "every permit must contain the Registration Mark (s) of the vehicle (s)which shall ply by virtue of the permit granted and during the period prescribed by the Transport Authority granting the permit in the offer letter which shall not normally exceed one month from the date on which the offer letter is issued, the grantee must produce the documents in respect of the vehicle (s) showing that he is in possession of the vehicle (s)as owner thereof and that the change of address of vehicle (s) concerned has been effected within this State, if previously registered outside this state and that the vehicle (s) is/are not covered by any kind of permit (s): provided that the Transport Authority granting the permit may allow time up to a limit of four months in respect of a grantee under the additional Employment Programme or an Ex-serviceman: provided further that the Transport Authority granting the permit may for reasons to be recorded in writing relax the condition as to possession by ownership for such period as it might consider reasonable but in any case not beyond six months from the date on which the permit is granted. In such contingency, also, the condition as regards transfer or change of address shall not be relaxable. " (4). ON a bare reading of the said provision it appears that by the said Rule provision was made giving benefit to the applicant so far as the placement of his vehicle by providing scope to place the vehicle normally not exceeding one month from the date on which the offer letter was issued but under second proviso of the said Rule 141 the Transport Authority got the right to relax the condition directing to place the vehicle with a limitation of not beyond six months from the date on which the permit was granted. (5). THE aforesaid Rule 141 now has been amended. By the amending provision it reads as follows: "141. (5). THE aforesaid Rule 141 now has been amended. By the amending provision it reads as follows: "141. Every permit must contain the Registration Mark (s) of the vehicle (s)which shall ply by virtue of the permit granted and during the period prescribed by the Transport Authority granting the permit in the offer letter which shall not normally exceed one month from the date on which the offer letter is issued, the grantee must produce the documents in respect of the vehicle (s) showing that he is in possession of the vehicle (s)as owner thereof and that the change of address of vehicle (s) concerned has been effected to within this State, if previously registered outside this State, and that the vehicle (s) is/are not covered by any kind of permit (s): provided that the Transport Authority granting the permit may, for reasons to be recorded in writing, extend the validity of the offer letter up to six months from the date of issue of the same in exceptional cases. b. In sub-rule (1) of rule 214, after the words "to the Secretary, State transport Authority", insert the words "or to the Deputy Secretary, State transport Authority." (6). IN terms of the second proviso of said amended provision as effected from 22nd December, 2004, the problem of the interpretation of statutory provision as earlier arose in view of the mentioning of the word "from the date of grant of permit" as appears in the second proviso of Rule 141 prior to such amendment, it got a clarification by introducing the word from the date of issuance of the offer letter". Such law as introduced w. e. f. 22. 12. 2004 is the guiding principle for adjudication of the writ. (7). ADMITTEDLY the offer letter as issued in favour of the petitioner on 7th july, 2003 became invalid w. e. f. 8th October, 2003. It is an admitted position that the petitioner did not approach the Transport Authority seeking extension of time. Even after coming into effect of the said amended provision no prayer was made for extension of the life of the offer letter. (8). THEREAFTER as already discussed, after awaking from the long slumber and precisely after three years from the date of issuance of such offer letter, the writ petition was moved. Even after coming into effect of the said amended provision no prayer was made for extension of the life of the offer letter. (8). THEREAFTER as already discussed, after awaking from the long slumber and precisely after three years from the date of issuance of such offer letter, the writ petition was moved. In view of the statutory provision under amended rule 141, as there is a statutory embargo that no offer letter could be extended so far its life span is concerned beyond six months from the date of such offer, the impugned judgment be tested in that angle. (9). IT appears that the learned Trial Judge passed a mandatory order directing to issue permit by extending the life of an offer letter which was already dead on 8th October, 2003. Having regard to the statutory embargo in terms of second proviso of amended Rule 141 as already quoted, we are of the view that the impugned judgment is not legally sustainable as by the impugned judgment practically the statutory embargo was lifted which is not permissible under the law. Furthermore, learned Trial Judge passed a mandatory order which was not permissible while exercising the power of judicial review. In the instant case, the writ petitioner prays for writ of mandamus commanding the respondents to issue permit and also to allow him for plying his vehicle. The provision to issue offer letter in terms of rule 141 has been incorporated in view of the fact that at the time of filing any application seeking "grant of permit", since there is no certainty of such grant, the applicant under last clause of form of such application as prescribed may give an undertaking to produce the vehicle at the time of issue of permit. As the possession of a vehicle is not a precondition for considering the application for grant of permit, naturally once the resolution is taken to grant such permit which practically means a proposed decision of the transport Authority to grant such permit subject to fulfillment of the conditions namely placement of the vehicle, Rule 141 was introduced. Under section 72 (2) of the Motor Vehicles Act, 1988 Regional Transport Authority while deciding to grant a stage carriage permit may provide the condition for grant of the same in terms of the conditions as stipulated in the said provision. Under section 72 (2) of the Motor Vehicles Act, 1988 Regional Transport Authority while deciding to grant a stage carriage permit may provide the condition for grant of the same in terms of the conditions as stipulated in the said provision. Having regard to that statutory provision Rule 141 came into existence regarding possession of the vehicle and the said provision is beneficial for the transport owners granting them a chance to possess the vehicle within six months from the date of issuance of the offer letter. Under rule 122 of the West Bengal Motor Vehicle Rules, 1989 entry of registration mark of vehicle is mandatory on a permit. Rule 122 reads as follows: "122. Entry of registration mark on permit.--(1) Where the registration mark of the vehicle is to be entered on the permit and the applicant is not, on the date of application, the registered owner of the vehicle, then, the applicant shall, within one month of the sanction of the application by the Regional Transport Authority, or by such longer period as such Transport Authority may specify, produce before that authority the certificate of registration of the vehicle registered in his name in order that particulars of the registration mark may be entered in the permit. (2) No permit shall be issued until the registration mark of the vehicle to which it relates has been, if the form of permit so requires, entered therein and in the event of any applicant falling to produce the certificate for registration within the prescribed period, the Regional Transport authority may withdraw its sanction of the application. " (10). ON a bare reading of the said Rule 122 it appears that at the time of filing any application if the applicant is not the registered owner of any vehicle he may produce the vehicle within the period as mentioned thereto after grant of such permit. Hence, having regard to the statutory provision namely Rules 122 and 141 as quoted above it is crystal clear that placement of a vehicle is a condition precedent for issuance of a permit. Such limitation is six months from the date of intimation of grant of permit which is termed as offer letter. (11). Hence, having regard to the statutory provision namely Rules 122 and 141 as quoted above it is crystal clear that placement of a vehicle is a condition precedent for issuance of a permit. Such limitation is six months from the date of intimation of grant of permit which is termed as offer letter. (11). HAVING regard to those statutory provision accordingly we are of the view that the learned Trial Judge without addressing on the aforesaid statutory provisions allowed the prayer of the writ petitioner directing issuance of permit extending the lifetime of the offer letter which became dead long back on 8th October, 2003. (12). CONSIDERING all the aspects of the matter and in view of our observations and findings, the impugned judgment accordingly is not legally sustainable. Hence the same is set aside and quashed. (13). THE appeal is accordingly allowed. The writ petition stands dismissed.