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2009 DIGILAW 463 (CAL)

ALIT KUMAR SARKAR v. STATE

2009-07-01

DEBASISH KAR GUPTA

body2009
( 1 ) THIS writ application is filed by the petitioner for a direction upon the respondent authority to grant "all Bengal" Contract Carriage Permit in his favour on the basis of his application dated June 1, 2007. ( 2 ) THE petitioner submitted the above application dated June 1, 2007 for granting of "all Bengal'' Contract Carriage Permit in his favour with approximate sitting capacity of 7+1 passengers. The respondent No. 5 informed the petitioner by a communication dated July 24, 2007 that in view of the restrictions imposed by virtue of Transport Department's notification No. 4081-WT dated August 30, 2006, no contract carriage permit for motor cabs/maxi cabs should be issued on any route/area falling under the municipal limits of the Siliguri Municipal Corporation. ( 3 ) THE above communication further contained that the State Transport authority had taken a decision not to issue permits of any type of vehicles in respect of the three districts namely Darjeeling, Jalpaiguri and Cooch behar. Therefore, the petitioner was directed to furnish "no Objection certificate" from the District Magistrate of the aforesaid three districts. ( 4 ) IT is submitted on behalf of the petitioner that the objection on the basis of Notification No-4081-WT dated August 30, 2006 is not sustainable in law. According to him, the provision of clause (a) sub-section (3) of section 74 of the Motor Vehicles Act, 1988 empowers the State Government to issue notification restricting only those contract carriages which are to operate on city route in town. Such restrictions can not be imposed on the contract carriage moving all over the State. It is further submitted that the maximum numbers upto which the permits could be issued are not specified in the notification. It is also submitted that while the residents of the districts other than those mentioned in the above notification dated August 30, 2006 are entitled to get All Bengal State Carriages Permit, the restriction is imposed only in respect of the residents of the districts mentioned in the above notification. That is a case of hostile discrimination. It is also submitted on behalf of the petitioner that the restrictions for issuing contract carriage permits in respect of three districts namely Darjeeling, Jalpaiguri and Cooch Behar are not imposed in accordance with the provision of clause (a) of sub-section (3) of section 74 of the Motor Vehicles Act, 1988. That is a case of hostile discrimination. It is also submitted on behalf of the petitioner that the restrictions for issuing contract carriage permits in respect of three districts namely Darjeeling, Jalpaiguri and Cooch Behar are not imposed in accordance with the provision of clause (a) of sub-section (3) of section 74 of the Motor Vehicles Act, 1988. ( 5 ) ON the other hand, it is submitted on behalf of the respondent authority that the notification dated August 30, 2006 is issued strictly in accordance with the provision of the Motor Vehicles Act, 1988 by issuing a draft notification as also considering the objections thereof. Therefore, such notification is not liable to be set aside. It is further submitted by Mr. N. I. Khan, learned junior Government Advocate, in his usual fairness, that in fact the notification dated August 30, 2006 is not applicable in case of the petitioner. ( 6 ) MR, Khan, however, fails to produce any notification in support of the decision of the State Transport Authority for imposing restriction with regard to issue permit for contract carriages in respect of Darjeeling, Jalpaiguri and Cooch Behar. ( 7 ) HAVING heard learned Counsel appearing for the respective parties and after considering the facts and circumstances of this case, I find that the communication dated July 24, 2007 issued by the respondent No. 5 contended that the application of the petitioner could not be considered on the following grounds: "i) Restrictions imposed by Notification No. 4081-WT dated August 30, 2006. ii) Decision of the State Transport Authority not to issue permits of any type of vehicles in respect of three districts namely Darjeeling, Jalpaiguri and Cooch Behar. " ( 8 ) IN view of the submissions made on behalf of the respondents that the notification dated August 30, 2006 is not applicable in case of the application of the petitioner, the first ground shown in the impugned letter dated July 24, 2007 cannot be sustained in law. Therefore, I find that there is no bar or an impediment in considering the application of the petitioner for issuing "all Bengal" Contract Carriage Permits. Therefore, I find that there is no bar or an impediment in considering the application of the petitioner for issuing "all Bengal" Contract Carriage Permits. ( 9 ) WITH regard to second ground of the decision of the State Transport authority imposing restriction to issue any type of permit in respect of the districts of Darjeeling, Jalpaiguri and Cooch Behar, I find that there is neither any Notification issued under the statute nor any Government policy is produced before this Court. The law is clear in this regard. Clause (a) of sub-section (3) of section 74 of the Motor Vehicles Act, 1988 is quoted hereunder: "74. Grant of contract carriage permit.- (l) ************ (2)************* (3) (a) The State Government shall, if so directed by the Central government having regard to the number of vehicles, road conditions and other relevant matters, by notification in the Official Gazette, direct a State Transport Authority and a Regional Transport Authority to limit the number of contract carriages generally or any specified type, as may be fixed and specified in the notification, operating in city routes in towns with a population of not less than five latkhs. " ( 10 ) ON perusal of the above provision of law, I find that the restrictions can only be imposed on issuing contract carriage permits which are to be operated on any city route in a town in accordance with the conditions mentioned in the above statutory provisions. Any action contrary thereto amounts to sub-plantation of the statutory provision. Such an action cannot be sustained in law. ( 11 ) THE fact of non-production of any notification in support of imposing restrictions on issuing permits for contract carriage permits to be operated on city route in the districts of Darjeeling, Jalpaiguri or Cooch Behar has not been produced before this Court is taken note of. Therefore, the resolutions of the State Transport Authority dated August 16, 2005 and march 14, 2007 with regard to taking decision for restricting the number of issuing contract carriage permits in respect of the aforesaid three districts cannot be sustained in law. Therefore, the resolutions of the State Transport Authority dated August 16, 2005 and march 14, 2007 with regard to taking decision for restricting the number of issuing contract carriage permits in respect of the aforesaid three districts cannot be sustained in law. ( 12 ) IN view of the above and on the basis of the discussions made hereinabove, the impugned communication dated July 24, 2007 issued by the respondent No. 5 (Annexure P-3 at page 31 to the writ application), resolutions dated August 16, 2005 and March 14, 2007 adopted in the meeting of the State Transport Authority (annexures R-1 and 2 at pages 12 and 13 respectively to the affidavit-in-opposition) on behalf of the respondent Nos. 1 to 5 are set aside and quashed. ( 13 ) THE respondent No. 2 is directed to consider and dispose of the application of the petitioner dated June 1, 2007 (annexure P-1 at page 25 to the writ application) in accordance with law within a period of six weeks from date of communication of this order. ( 14 ) THE respondent No. 4 is directed to communicate the above decision to the petitioner within one week thereafter. ( 15 ) THIS writ petition stands disposed of. ( 16 ) THERE will be, however, no order as to costs. ( 17 ) URGENT xerox certified copy of this order, if applied for, be given to the parties on priority basis. Writ petition disposed of.