Calcutta High Court
Debarghya Dhar Mohapatra vs The State Of West Bengal & Ors on 26 September, 2024
OD-21
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
WPO/761/2024
DEBARGHYA DHAR MOHAPATRA
VS
THE STATE OF WEST BENGAL & ORS.
BEFORE:
THE Hon'ble JUSTICE RAI CHATTOPADHYAY
Date : 26th September, 2024.
Appearance:
Mr. Shankar Nath Mukherjee, Adv.
Mr. Samim Akter, Adv.
Ms. Manisha Paswan, Adv.
...for the petitioner
Mr. Amal Kr. Sen, Ld. AGP.
Ms. Ashima Das (Sil), Adv.
...for the State
The Court: The petitioner has challenged in this writ petition, the decision
of the Board, State Transport Authority, West Bengal, dated 6th February, 2024,
thereby rejecting the petitioner's application for grant of permit for the inter-state
route from Diamond Harbour to Bhubaneswar. The reason therefor has been
stated in the said resolution of the Board to be availability of no vacancy, in the
said route. The petitioner is also aggrieved that his grievance, as ventilated
through the letter of his Ld. Advocate, dated 12th June, 2024, has also remained
unattended by the said respondent, as yet. Hence, he has filed the present writ
petition.
Mr. Mukherjee has represented the petitioner in this case. He has
submitted that a new inter-state route was inducted vide notification dated 12th
September, 2011, amongst others, that is from Bhubaneswar to Diamond
Harbour via Laxmannath, Vidyasagar Setu and a total of 4 vacancies were
declared there in.
The petitioner has submitted his two applications on line, for two vehicles,
on 26th December, 2023. A notice was issued on 31st January, 2024, by the RTO
& Ex-Officio Astt. Director, State Transport Authority, West Bengal informing the
schedule of the Board meeting to be held on 6th February, 2024 at 3 p.m. and
seeking personal attendance of all the applicants. The writ petitioner was called
for with respect to his both the applications, to be present in that meeting.
On the date, the following decision was taken :
"Decision of STA Board
Five applications received for the Inter State route DIAMOND
HARBOUR TO BHUBANESWAR. Members of the STA Board
considered and rejected all the applications as mentioned in
serial No.1 to 5 as there is no vacancy at this point of time."
The two applications of the petitioner found place at serial Nos. 2 and 3 of
the said resolution dated 6th February, 2024, which were rejected along with the
others.
According to Mr. Mukherjee, such decision of the Board is arbitrary and
illegal; that the same has been a non-speaking, unreasoned and cryptic order
based on no consideration of the relevant materials on record. He says that the
Board's resolution as above is untenable in the eye of law and the same should be
set aside.
To buttress his submissions, Mr. Mukherjee has relied on a letter dated
22nd December, 2023, of the Joint Secretary, State Transport Authority, Odisha,
to submit that the reciprocating State Odisha has granted counter signature in
respect of the two applicants, for the said route, by dint of the said letter. Hence,
after completion of that formality, two vacancies in the route can be said to have
been filled up. However, the rest two vacancies out of total four of those, still
remain vacant, which the Board, STA West Bengal has failed to take into
consideration. Hence the decision of the Board vide resolution dated 6 th February,
2024, regarding availability of no vacancy in the said route, suffers from gross
error, he says.
Mr. Mukherjee would submit that after the existing permit holders failed to
make an application for renewal of their permit which has expired earlier, it is a
duty of the competent authority to immediately cancel those permits. The
competent authority would be duty bound to immediately undertake a process of
filling up of the vacancies which arose due to non-submission of an application
for renewal of the earlier permits. He would say that this Court in earlier orders
have mentioned such a permit to be a 'dead permit'. To buttress his such
submission Mr. Mukherjee has relied on the following three judgments/orders of
this Court:-
(i) Bikash Chandra Saha vs. The State of West Bengal & Ors. reported in
2013 SCC OnLine Cal 21062;
(ii) Benu Binod Maity vs. The State of West Bengal & Ors. reported in
2023 SCC OnLine Cal 2402;
(iii) Debashis Das vs. State of West Bengal & Ors. in W.P.A 9902 of
2019, (order dated March 11, 2022).
Also Mr. Mukherjee has put forth an anomaly with respect to the grantee,
namely 'Shyamoli Paribahan Private Limited', that in spite of its application dated
1st September, 2023, having been rejected by the State Transport Authority
Board on 9th October, 2023, it can be found from the letter of the Joint Secretary,
State Transport Authority, Odisha, dated 22nd December, 2023, that the
reciprocating State has granted counter signature in respect of permit granted to
it. Mr. Mukherjee has suggested that the legality and authenticity of such grant of
permit to 'Shyamoli Paribahan Private Limited', is suspicious, in absence of any
cogent material on record, to justify such grant, even after rejection of its prayer
earlier on 9th October, 2023.
Be that as it may, Mr. Mukherjee has insisted that as against the two
vacancies available, petitioner's prayer for grant of permit should have been
considered and allowed by the State Transport Authority West Bengal. Also that
in such view of the matter, the impugned resolution of the same dated 6th
February, 2024, is bad in law and liable to be set aside. An appropriate order has
been sought for by the petitioner, in this writ petition.
Mr. Sen, Ld.AGP has represented the respondent State Transport
Authority. Mr. Sen raises objection that any permit can be granted to the
petitioner immediately, even if there are vacancies available. His arguments are
principally based on the report dated 28th August, 2024, filed in Court by the
Secretary, STA West Bengal and the relevant statutory provisions. On the basis of
the said report he would submit that two permits in the said route, as against a
total of four vacancies, have expired on 22nd December, 2023. Those permit
holders, whose permits have expired, have neither come up with any prayer for
extension of the same, nor for cancellation thereof, since after such expiry of its
validity period.
It has been indicated that for renewal of permit, there is not any maximum
time limit fixed in the statute, after which an existing permit holder may be said
to have been restrained from making an application for renewal thereof. On the
contrary, the statute and the rules have provided for acceptance and grant of
renewal of permit at any belated stage, upon fulfilment of the conditions as
prescribed in the statute and the rules. It is therefore argued that mere expiry of
the validity period of a permit would not ipso facto imply extinction thereof.
Hence, the contention of the petitioner would not be tenable, in view of the
statutory provision as mentioned above.
Mr. Sen would say that the Motor Vehicles Act, 1988, has not provided for
any automatic 'cancellation' of permit. Mr. Sen would further say that the
petitioner being an unsuccessful applicant amongst others, cannot claim any
preference to be extended to him, even if there are vacancies available. That, in
any event the petitioner must undergo the free and fair process of selection,
against any vacant position, in any route. It has further been submitted that if
not any vacancy has been declared by the competent authority, in terms of the
statutory provisions, there would not arise any occasion for consideration of the
petitioner's applications for grant of permit, which have once been rejected. Mr.
Sen would suggest that the writ petition would not be maintainable and urge that
the same may be dismissed.
Admittedly, on the day of rejection of the petitioner's applications for grant
of permit, that is 6th February, 2024, validity period of two of the permits in the
said route, had expired.
The duration of a permit to be valid would be in accordance with the
provisions under section 81(1) of the Motor Vehicles Act, 1988. According to
section 81(2) thereof, a permit may be renewed on an application made not less
than fifteen days before the date of its expiry.
To the general provision as above, section 81(3) of the said Act, makes an
exception. It says that :
81. Duration and renewal of permits. -
(1) ********
(2) *******
(3)Notwithstanding anything contained in sub-section (2), the
Regional Transport Authority or the State Transport
Authority, as the case may be, may entertain an application
for the renewal of a permit after the last date specified in
that sub-section if it is satisfied that the applicant was
prevented by good and sufficient cause from making an
application within the time specified.
The corresponding rule is Rule 151 of the West Bengal Motor Vehicles
Rules, 1989, which provides as follows:
"151. Application for renewal of permit or of renewal of
counter-signature of permit may be received after the date of
expiry thereof provided a fee in the scale as prescribed in
Schedule E3, for condonation of delay is paid in the manner
as prescribed."
Section 81(3) of the Act of 1988 read with Rule 151 of the Rules of 1989,
have provided discretionary powers to the competent authorities, in a case when
an application for renewal of a permit has not been made at least 15 days before
expiry of validity period of that permit. Any delay in applying for renewal of a
permit, the reason for which would be found to be sufficient by the said
authority, may be condoned and renewal of permit may be allowed subject to
payment of fees as per the schedule of the Rules of 1989, as prescribed.
Therefore, the respondent has stated that there is no maximum limit as
prescribed in the Act for the purpose of applying for renewal of a permit and has
rightly stated so. The question is that whether therefore the authority is bound to
wait in perpetuity, for a permit holder to come before it for renewal of his permit,
the validity period of which has expired. The question also is if the permit holder,
validity of whose permit has since been expired would be called upon to explain
as to why his permit would not be cancelled in absence of his prayer for renewal.
The answer may be found in the erudite scripting by the Court in the judgment of
Bikash Chandra Saha (supra). Relevant portion thereof may be quoted below:
"There is no provision in the Act or the rules framed thereunder
which obliges the permit issuing authority to call upon the
permit holder to show cause as to why the permit issued in his
favour, which has since expired, should not be cancelled. In
other words, once the permit outlives its validity, it becomes a
dead permit. Applicability of Section 86 of the Act relating to
cancellation of permit would arise only in respect of a permit
that is valid and operative. Recourse to cancellation of a dead
permit is not envisaged in the statute. True it is that rule
151read with Form E3 does not specify the outer time limit
within which an application for renewal ought to be made, but
it is open to the permit issuing authority to wait for a
reasonable period of time after expiry of the permit and
thereafter to notify the vacancy on the route, if it is an inter-
state route or a notified route. However, what would be the
'reasonable period' must depend on the facts and
circumstances of each case and there cannot be any exhaustive
enumeration in this behalf."
Hence, in this regard the law is thus settled in a manner as enumerated
above. Neither the authority would wait for an indefinite period or forever, for a
permit holder to come before it with an application for renewal of his such permit,
the validity period of each expired, nor the authority would proceed to call the
permit holder and seek explanation as to why his permit should not be cancelled
in absence of any application filed by him seeking renewal thereof. Instead, in a
case where the validity period of permit would expire, and since thereafter, the
holder of the permit would not turn over, to file an application seeking extension
of validity of the said permit, the permit issuing authority would wait for a
reasonable period of time after expiry of the permit, and thereafter notify the
vacancy on the route.
Similar principles have been propounded by the Court in the judgment of
Benu Binod Maity (supra), in which the Court has held that once the permit
outlives its validity, the same becomes a dead permit. The issue has been
similarly dealt with in the judgment of Debashis Das (supra).
In the present case as the two permits in the said route have expired much
earlier, on 22nd December, 2023. Sufficient time has already been elapsed, from
the said date, without the permit holder having approached the authorities for
renewal of such permit. There would not be any justifiable reason as to why the
permit issuing authorities should wait any further without officially notifying the
said positions, in respect of the said route, as vacant.
At this juncture, it is necessary that the second limb of argument of the
petitioner be discussed. The petitioner has stated that since admittedly, the two
positions stand vacant due to non-renewal of the permits already expired, as on
the date of his applying for the permits, he should be granted with the permits, as
against the said two vacant positions. The Court finds that in view of the scheme
of the Act and the Rules as stated above, which have provided that there would
virtually not be any outer limit of time for filing an application for renewal of a
permit and that a vacancy has to be filled up through a process of selection
pursuant to a vacancy notification inviting applications from the eligible
intending operators, to take part in the said process of selection, there would not
be any scope under the law, for automatic transposition of an applicant in place
of a permit holder, though validity of permit might have expired much earlier. For
filling up a vacancy, the pre-condition is to declare the vacancy by publishing
notification. It is a fact admitted in this case that on the date of consideration of
petitioner's prayer for grant of permit, validity of the two permits in the said route
amongst the four, had already expired. However, the records would reveal that
either on the date of the petitioner making applications for grant of permit, or on
the date of cancellation by the authority of such prayer of the petitioner, there
was no formal declaration of vacancy in the said route. Hence, the court finds
that unless there has been a formal declaration of vacancy through a duly
published notification, the respondent authority could not have considered those
to be vacancies available. Therefore, as regards the finding of the Board, STA,
West Bengal in its resolution dated 6th February 2024, regarding availability of no
vacancy, the Court finds the same technically to be bereft of an error and hardly
to be interfered into.
The Court is also unable to find any justification as regards the inaction by
the said authority not to declare any vacancy in the said route, for such a
considerable long period of time, since after expiry of the validity of the two
permits which existed earlier. Therefore the decision of the Board dated 6th
February, 2024, is, if not illegal, but unjust and improper to affect the lawful
rights of the intending applicants, including the present petitioner adversely.
Hence the same is found to be not tenable in the eye of law.
On the premise as above, the Court finds it proper to dispose of the present
writ petition with the directions as below:
(i) The resolution of the Board, State Transport Authority, West
Bengal dated 6th February, 2024, is set aside;
(ii) The STA West Bengal is directed to immediately declare vacancies
in the said route, in accordance with law, pursuant to the validity
period of the two permits in the said route having been expired
long ago and no application having being made for all these
periods, for renewal of the same;
(iii) In the process, the STA, West Bengal shall take into consideration
the existing applications of the petitioner dated 26th December,
2023, along with the other applications received, if any. However,
regarding relevant documents to be submitted by the writ
petitioner for consideration of his applications as mentioned
above, the said respondent/permit issuing authority, may direct
for submission by the present petitioner, of the latest
documents/data as relevant and necessary for due and proper
consideration of his applications.
(iv) The STA, West Bengal shall consider, for grant of permit as
against the said two vacancies in the route, all the applications
received, including those of the petitioner's dated 26 th December,
2023, and decide upon those in accordance with law.
(v) The result thereof shall be communicated to the petitioner within
one week from the date of its order.
(vi) The entire exercise as above shall be concluded by the respondent
State Transport Authority, West Bengal, within a period of three
months from the date of communication of this order.
Writ petition No. WPO 761 of 2024 is disposed of.
Urgent certified website copies of this order, if applied for, be supplied to
the parties expeditiously on compliance with the usual formalities.
(RAI CHATTOPADHYAY, J.)
Tudu/P.A
