- (1.) Mr. Malay Kumar Basu, learned senior counsel representing the writ petitioner pursuant to the prayer of the writ petition argued that the Regional Transport Authority, Kolkata Region has not been constituted in terms of sub- section (2) of Section 68 of the West Bengal Motor Vehicles Act, 1988. Therefore, the representation as was considered by the so-called Regional Transport Authority, Kolkata by holding meeting on 12th September, 2017 is bad in law and is liable to be quashed by stretching relief as sought for in the writ petition. Mr. Basu relied upon the case of M/s. Sheik Hussain and Sons -vs- State of Andhra Pradesh and Ors . reported in AIR 1964 Andhra Pradesh 36, specially referred to paragraphs 11, 12, 13 and 14, which are set out: "11. Under Section 44(2) read with Rule 144 of the Madras Motor Vehicles Rules, the State Government was vested with a discretion to constitute a State Transport authority or a Regional Transport Authority with 'such number of officials and non-officials as the State Government may think fit to appoint'. But Section 44(2) was, however, amended by Motor Vehicles (Amendment) Act, 100 of 1956, in the following way: "A State Transport or a Regional Transport authority shall consist of a Chairman who has had judicial experience and such other officials and non-officials, not being less than two, as the State Government may think fit to appoint...." 12. Under Section 44(2) , as it now stands, a State Transport Authority should consist of a Chairman, who has had judicial experience and such other officials and non-officials not being less than two. The composition of the State Transport Authority is thus statutorily fixed. 13. Under Section 44(3) , a State Transport Authority has to discharge such functions as may be prescribed. Under Section 64(b) , any person aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, may appeal to the prescribed authority, which is the State Transport Authority, if the order under appeal is that of the Regional Transport authority. Where any such appeal is preferred the State Transport Authority, after giving notice to the parties and giving them a reasonable opportunity of being heard, shall give its decision. Besides the jurisdiction to decide appeals from the decisions of the Regional Transport authorities, the State Transport authority is also entrusted with several important duties, and for discharging those duties large powers have been conferred on the Authority. 14. The constitution of the Tribunal (State Transport Authority) having been statutorily settled, the intention of the Legislature appears to be obvious. The statutory requirement, therefore, is that the Chairman and the two members should hear and dispose of matters that have to be decided by the Tribunal under the various provisions of the Act. The Chairman of the Tribunal sitting alone is not competent to hear and dispose of an appeal preferred by the aggrieved parties. The impugned orders, were therefore, prima facie without jurisdiction."
(2.) Mr. Rameswar Bhattacharya, learned counsel representing the respondent no.5 supporting the impugned resolution dated 12th September, 2017 and relying upon Sections 86 and also 68 of the West Bengal Motor Vehicles Act, 1988 submitted that in the meeting the Chairman along with one non-official and one official member were very much present. Further submitted that though six other members had attended the meeting as invitee members, there is no bar in the Act that any invitee member would not be allowed to remain present in any such Board meeting. According to him, their assistance or experience might have been required and therefore, their presence would not vitiate the decision of the Regional Transport Authority, Kolkata, specially because it was headed by Chairman and two members. On merit Mr. Bhattacharya also submitted that the resolution did not suffer from deficiency or illegality, as because on that date the writ petitioner had no vehicle in his possession and the Regional Transport Authority being well empowered under Section 86 of the Motor Vehicles Act, had rejected the prayer and therefore, the writ petition is liable to be dismissed, specially because the earlier resolution taken in the meeting held on 19th January, 2017, was not challenged.
(3.) Mr. Sen, learned Additional Government Pleader representing the State also supporting the resolution adopted by the Chairman, Regional Transport Authority, Kolkata Region and adopting the submission of Mr. Bhattacharya, tried to impress upon the Court that while earlier resolution dated 19th January, 2017 cancelling the permit of the writ petitioner was not challenged, the challenge of the resolution dated 12th September, 2017 would be a futile exercise. According to him, the presence of invitee members would have been required for discussion on other agenda and the impugned resolution could not be said to have been vitiated due to mere presence of the invitee members, specially when within the resolution there was no indication that they had participated in any manner in the decision making process and therefore, submitted to dismiss the writ petition. ;