ASHOK KUMAR MATHUR - (1.) This is an appeal directed against the order passed by the Learned Single Judge dated 21st November, 2000 whereby the learned single Judge has dismissed the writ petition.Aggrieved against this order the present appeal has been filed by the petitioner/appellant.
(2.) The brief facts are that the petitioner is the holder of a permanent stage carriage permit for the route from Howrah to Digha. He has challenged the temporary grant of permit in favour of respondent No.8 from Kasbagoia to Calcutta/Howrah. The petitioner was operating on this route since long and his permit was valid upto 9th August, 2000. It was alleged that he was operating on this route for the last 16 years. Thereafter a scheme was notified by the Government of West Bengal on 15th September, 1988 in pursuance of S. 68D(3) of the Motor Vehicles Act, 1939 now under S. 100(3) of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act of 1939 and 1988). The scheme related to nationalisation of the route Calcutta/Howrah to Digha (hereinafter referred to as the notified route). The same was published in the Calcutta Gazette (Extraodinary) dated 12th April, 2000 which reads as under :"WHEREAS the Government of West Bengal considered it necessary and expedient in the public interest that a Scheme should be formulated under Chapter VI of the Motor Vehicles Act, 1988 in favour of the State Transport Undertakings in supersession of all other notifications published earlier in respect of the area and route mentioned hereinbelow;AND WHEREAS, in pursuance of S. 99 of the said Act, the State Government, for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, formulated the Scheme as mentioned herein below;AND WHEREAS, the proposal regarding the Scheme was published under this Deptt's Notification No. 2125-WT/STA-1/97 dated 18th March 99 in Part-I of the Calcutta Gazette, Extra-ordinary, dated 16th April, 1999, as required under S.99 of the Motor Vehicles Act, 1988 (59 of 1988) (hereinafter referred to as the said act);AND WHEREAS, in pursuance of provisions of sub-sec.(2) of S. 100 of the said Act, after considering the representation filed by the objectors, after giving them due hearing, the said proposal has been approved by the State Government;NOW THEREFORE, in pursuance of provisions of sub-sec.(3) of S. 100 of the said Act, the Government is pleased hereby to publish the scheme relating to the said proposal as approved under sub-sec. (2) of S. 100 of the said Act, for general information :- SCHEMEThe Calcutta State Transport Corporation and the South Bengal State Transport Corporation being the State Transport Undertakings shall, for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service operate and run in the public interest passenger stage carriage service in relation to the area and routes, particulars whereof are specified in the Schedule below to the exclusion of all other passenger transport service between the stretch of the route lying through Heria and Digha on the route Calcutta/Howrah West Bengal except:-i) Other State Transport Undertakings;ii) The existing lawful permanent stage carriage permit holders as on the date of publication of the approved Scheme in the route/area specified in the Schedule hereto or in any portion thereof;iii) Persons who may be allowed to operate stage carriage service in the existing route partially overlapping or crossing over the said route provided further that the overlap may not exceed to adjacent regions in the said sector.iv) Any other State Transport Undertaking of foreign countries through general/special agreements and/or treaties;v) State Transport Undertakings of other State and other operators who may be granted permits in pursuance of inter-State reciprocal transport agreements entered into between the State of West Bengal and such States as envisaged in S. 88(5) and (6) of the said Act;vi) Tourist Permits, Special Permits not exceeding a single round trip during the period of permit;vii) Existing Contract Carriage Permit holders operating over the route/area specified in the Schedule to the approved Scheme as of the date of publication of that Scheme or over portion of route/area. SCHEDULE ArearouteNo. of vehicles on daily service charges Fare, Timetable and LuggageNature of serviceReserved for Break down, repairs/maintenance, failure from other causes--------------min/ max Calcutta Howrah, MidanaporeCalcutta/ Howrah Digha, via Kolaghat, Mecheda, Norghat Heriabazar Contai, Balisai.30 60As approved by STA West BengalAll types of state Carriage Services, viz. Limited Stop ordinary express.2By order of the governor, (A. Ahad)Deputy Secretary to the Government of West Bengal Thereafter the notified scheme came into force for the route Calcutta/Howrah- Digha via Kolaghat, Mecheda, Norghat, Heria, Bazar, Contai and Balisai and permissionwas given in favour of South Bengal State Transport Corporation and Calcutta State Transport Corporation. It is alleged that after issuance of this scheme a permanent permit was also issued in favour of respondent No.5 for the route Solepatta to Calcutta via Contai and Heria. It was submitted before us that the grant of permit in favour of the respondent No.5 is illegal and contrary to the scheme. It was alleged that the grant of permission in favour of respondent No. 1 on the aforesaid route which covers the area of Contai to Heria of the notified route as against the notification dated 12th April, 2000 and as such the grant is absolutely illegal and contrary to law. However it appears that during the proceedings before the learned single Judge a temporary permit was granted in favour of newly added respondent No.8 in the route from Kasbagoia to Calcutta was also challenged. The grant of permit in favour of respondent No.8 from Kasabgoi a to Calcutta/Howrah overlaps the notified scheme of Digha to Calcutta/ Howrah from portion of Contai and Heria. Therefore, the grievance of the petitioner was that since he holds a permit on this route as an existing holder of the permit as he is covered by Clause (2) of the aforesaid notification, the grant of permit in favour of respondent No.8 from Kasbagoi to Calcutta/Howrah overlapping a portion from Contai to Heria cannot be granted as it overlaps the aforesaid portion of the notified scheme. Therefore, in short, the grievance of the petitioner is that the grant of permit in favour of the respondent No.8 is illegal as it overlaps the portion from Contai to Heria of the notified scheme which cannot be permitted. The contention of the respondent No.8 was that his case is covered by Clause (3) of the notified scheme which says operators may be allowed to operate stage carriage service in the existing routes partially overlapping or crossing over the said route provided further that the overlap may not exceed to adjacent regions in the said sector.
(3.) . The contention of the learned counsel for the appellant was that the permit which has been granted to the petitioner exceeded to another region that is Howrah region as the permit which has been granted to the respondent No.8 covers two regions that is Kasbagoia in Midnapore and Howrah. Therefore, the grant of permit in favour of the respondent No.8 is in violation of Clause (3) of the Notification. We have considered the submission of the learned counsel for the petitioner/appellant. As a matter of fact, the route of respondent No.8 covers two regions that is Midnapore and Howrah and he overlaps the notified portion of the said route of Midnapore region only. The learned counsel for the appellant submitted that since it covers two regions and as per Clause (3) of the notified scheme if the existing route is partially overlaps or crosses the said regions in the said sector in that case he is not permitted to overlap this notified route. For better appreciation of situation we again reproduce clause (iii) of the Scheme which reads as under :"iii) Persons who may be allowed to operate stage carriage service in the existing routes partially overlapping or crossing over the said route provided further that the overlap may not exceed to adjacent regions in the said sector";;