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2008 DIGILAW 13 (PAT)

Krishna Kumar Singh v. State Of Bihar

2008-01-07

NAVANITI PRASAD SINGH

body2008
Judgment 1. Heard 2. The petitioner is aggrieved by the order of Magadh Regional Transport Authority, Gaya, granting permit to respondent no. 5 for plying his bus with capacity of 33 passengers on a route of 200 kms. 3. Notice was issued by this Court to respondent no. 5. He has appeared and filed a counter affidavit. 4. Heard the parties and with the consent of the parties this writ petition is being disposed of at the stage of admission itself. 5. Petitioner challenges the grant of permit to respondent no. 5 for his bus having capacity of 33 passengers on a distance of 200 Kms. on the ground that as per direction and decision of the State Transport Authority (Annexure 2) dated 14.2.1996. State has directed that for long distance journey buses with sitting capacity of 33 and above could be considered. Meaning thereby that buses having capacity less than 53 seats could not be granted permit for long distance. The grant of permit to the respondent no. 5 for long distance is thus vitiated and is wholly without jurisdiction. 6. Learned counsel for the petitioner has placed reliance on a decision taken by the Magadh Regional Transport Authority dated 7.2.2006 (Annexure 3) in which pursuant to recommendation of the Committee they decided that long distance thus submits that in view of Annexure 2 read with Annexure 3, the effect is that only buses with sitting capacity of more than 53 passengers can be considered for grant of permit for a distance above 50 Kms. 7. In the present case, the sitting capacity of respondent no. 5s bus was 33 and it has been granted permit for a distance of 200 Kms., which is impermissible. 8. Respondent No. 5, on the other hand, submits that the decision, as contained in Annexures 2 and 3, after due deliberation and representation by the Trade Association was modified by the Magadh Regional Transport Authority by its decision dated 10.10.2006 (Annexure A to the counter affidavit). He submits that Magadh Regional Transport Authority has specified buses having less than 26 seats to be the Mini Buses. As the bus of respondent no. 5 had 33 seats it was not a Mini Bus and thus being the position, he was entitled to a permit of long distance in excess of 50 Kms. He submits that Magadh Regional Transport Authority has specified buses having less than 26 seats to be the Mini Buses. As the bus of respondent no. 5 had 33 seats it was not a Mini Bus and thus being the position, he was entitled to a permit of long distance in excess of 50 Kms. and the action of the Magadh Regional Transport Authority could thus not be assailed. 9. His second contention was that against the decision of the Regional Transport Authority statutory remedies are available and the petitioner has approached his Court without availing statutory remedy and as such the writ petition should be dismissed for not availing alternative statutory remedy. 10. Having considered, in my view, the writ petition is maintainable and must succeed. 11. Learned counsel for the respondent, in my view, forgets that Annexure 2, being the decision of the State Transport Commissioner-cum-Secretary, Department of Transport dated 14.2.1996 (Annexure 2) is the decision of the Government. The said decision cannot be modified by any stretch of imagination by Regional Transport Authority. Annexure 2 clearly specified that long distance permits can only be granted to buses having sitting capacity of 53 passengers and not to smaller buses. The Magadh Regional Transport Authority considering Annexure 2, by its decision dated 7.2.2006 (Annexure 3), has held and decided that long distance would be distance of above 50 Kms. 12. Learned counsel for the respondent has not been able to show that the Regional Transport Authority has modified its decision dated 7.2.2006 with regard to decision defining long distance in any manner. Thus, the position remains that the State having held that long distance plying could be permitted only to 53 seaters buses holding seats and what is long distance is defined by Annexure 3 to be more than 50 Kms. Annexure A to the counter affidavit being subsequent decision of the Regional Transport Authority dated 10.10.2006 in no way modifying either of the two Circulars even otherwise it would not have modified or explained Annexure 2, which was binding on it as having been issued by the State. That being so, the decision to grant permit to respondent no. 5 by Annexures 1 and 6 was wholly contrary to Annexures 2 and 3, which has stated above, do not stand modified but holding the field. Therefore, the order granting permit is wholly without jurisdiction. That being so, the decision to grant permit to respondent no. 5 by Annexures 1 and 6 was wholly contrary to Annexures 2 and 3, which has stated above, do not stand modified but holding the field. Therefore, the order granting permit is wholly without jurisdiction. There was inherent lack of jurisdiction in the Magadh Regional Transport Authority to grant long distance permit to a bus having passengers capacity less than 53. Thus, the permit granted to respondent no. 5 dated 11.12.2006, as evident by Annexures 1 and 6 is wholly without jurisdiction and is liable to be quashed. 13. Coming to the question of alternative remedy, it is too late in the date to suggest that if an order is wholly without jurisdiction the party must submit to the jurisdiction and avail statutory remedy but cannot come to this Court directly, for it is well established that rule of availing alternative remedy having its exception and one of the exceptions is where the authority has acted wholly without jurisdiction. The present is one of such exceptional case. 14. In the result, this writ petition is allowed and Annexures 1 and 6 are quashed.