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Judgment
Sabyasachi Bhattacharyya, J.:-
Affidavit-of-service filed in Court today be kept on record.
The present appeal has been preferred after a delay of about 196 days.
The learned Senior Standing Counsel appearing for the State places reliance on the averments made in the condonation application and submits that due to inter-departmental processing of the concerned file and engagement of State Advocates, the delay in filing the appeal was occasioned.
It is submitted that the delay was not wilful or deliberate and that there was no mala fides behind the delay.
Learned counsel appearing for the private respondents argues that the number of days of delay, that is, 119 days, as mentioned in the application, is incorrect and the actual delay is of a much larger period.
However, from a perusal of the averments made in the condonation application, we find that although numerically the period of delay has been erroneously mentioned in the application for condonation, the entire period of delay from the date of passing of the impugned order, that is, April 22, 2025 has been explained in detail in the relevant paragraphs of the condonation application.
Upon a perusal of the same and upon hearing learned counsel for the parties, the Court is satisfied that sufficient explanation for such delay has been furnished.
Accordingly, CAN 2 of 2025 is allowed on contest, thereby condoning the delay in preferring MAT 2123 of 2025.
There will be no order as to costs.
The present appeal has been preferred against an order whereby the learned Single Judge allowed the writ petition filed by the present respondent no.1 Bijoy Naskar, challenging a resolution of the Board of the State Transport Authority, West Bengal dated December 12, 2024 (being Agenda No. 22), whereby the application for grant of inter-State Stage Carriage Permit of the proforma respondent no.2 Debarghya Dhar Mahapatra was allowed in precedence over a similar application made by the writ petitioner/respondent no.1 on the ground that the proforma respondent no.2 had applied for such permit earlier, by applying the FIFO (First In First Out) policy.
The learned Single Judge, in the impugned order, observed that FIFO was not an approved and valid policy to be adopted while considering the prayer of the intending operators, who had applied before the authority for issuance of permit. Secondly, it was held that the method applied for selection of the prospective permit holder in the said resolution dated December 12, 2024 was not notified; moreover, it appeared to be a methodology adopted in violation of the statutory provisions for issuance of permit.
Learned Senior Standing Counsel, appearing for the State, assails the said judgment on the ground that there is or was no existing statutory provision for grant of inter-State permits. It is submitted that under the existing norms, in case of inter-State transport, an agreement is required to be reached between the two States as to the respective quotas of the States in respect of the issuance of permits. Once such quota is fixed, the permits have to be issued in accordance with the prevalent law. However, it is submitted that although there was no notification at the relevant juncture declaring FIFO as the preferred mode/policy for allowing applications for permit, in the absence of any specific statutory provision mandating publication of Gazette Notifications regarding directions in respect of inter-State carriage permits, there was no infraction of any statute in that regard.
Learned Senior Standing Counsel hands over a subsequent notification dated July 04, 2025 and submits that after the impugned order was passed, a notification has actually been published in the Office Gazette by the State Transport Authority in that regard.
Learned counsel appearing for the writ petitioner/respondent no.1 argues that the provisions of Section 71(3)(d) of the Motor Vehicles Act, 1988 (for short “the 1988 Act”) ought to be applicable in respect of grant of permits. Having not adhered to the same, the State committed a gross error of law in adopting the FIFO method to grant the permit to the proforma respondent no.2.
Secondly, it is argued that by itself, the FIFO method is not transparent and is violative of principles of equality and justice.
Learned counsel appearing for the proforma respondent no.2 argues that there is no provision in respect of issuance of permits at the inter-State level or even at the State level within the four corners of the 1988 Act. It is submitted that Section 71(3)(a) makes it clear that the directions contemplated therein pertain to the limit of the number of stage carriages, generally or of any specified type, operating on city routes in towns with a population of not less than five lakhs. As such, the said provision has no applicability at all to inter-State carriages. It is pointed out that the subsequent clauses of Section 71(3), that is, clauses (b), (c) and (d), all are connected with clause (a) and, as such, are applicable only to operation on city routes in towns with population of not less than five lakhs.
In the absence of any provision governing inter-State transport, it is submitted that the State was justified in adopting the best method in its perception.
Upon hearing learned counsel and on a thorough scrutiny of the provisions of the 1988 Act, we are unable to find any specific provision in the said Act pertaining to the norms or parameters to be followed in issuance of stage carriage permits in respect of the inter-State travel or even at the State level.
As rightly argued by the proforma respondent no.2, Section 71(3) is applicable only at the level of city routes in towns of the population as specified therein. All the corresponding provisions under sub-section (3) of Section 71 are tied up with clause (a) of sub-section (3) and, thus, are applicable only in case of operation on city routes within the towns and are not applicable to inter-State transport.
No other statutory provision is brought to our notice which directly pertains to the modalities and parameters for issuance of permits in respect of the State or inter-State transport.
Even insofar as the requirement of notification in the Official Gazette is concerned, although there are several provisions in the 1988 Act itself which require notification in the official gazette, for example, Section 71(3) of the said Act, none of the said provisions directly pertain to inter-State transport.
Section 67 of the 1988 Act has been cited in this context. However, from a bare perusal of the same, we find that the notification in the Official Gazette as required under sub-section (1) thereof pertains to the passengers’ convenience, economically competitive fares, prevention of overcrowding and road safety. The respective clauses, (a) to (d), under the said sub-section relate to the advantages offered to the public, trade and industry, the development of motor transport, the desirability of coordinating road and rail transport, desirability of preventing deterioration of the road system and promoting effective competition among the transport service providers (thereby referring to already existing service providers). None of the said provisions directly relate to issuance of stage carriage permits to fresh applicants.
Sub-section (3) of Section 67 envisages notification in the Official Gazette in respect of the schemes for transportation of goods and passengers and issuance of licences under such scheme for the promotion of development and efficiency in transportation in respect of several clauses thereunder which, even as per learned counsel appearing for the several parties before us, do not directly relate to the issuance of stage carriage permits, at the inter-State or State levels.
Learned Senior Standing Counsel also seeks to rely on Section 212 of the 1988 Act. However, sub-section (1) of Section 212 speaks about the power to make rules under the Act being subject to the condition of the rules being made after previous publication. Sub-section (2) provides that all rules made under the Act shall be published in the Official Gazette. Sub-section (3) provides that every rule made by the State Government shall be laid as soon as may be before the State Legislature. Similarly, all the other sub-sections of Section 212 pertain to the modalities of rules which have already been framed, but are not the parent provisions empowering the State to make rules. The power of the State Government to make rules under Section 210D of the said Act also pertains to design, construction and maintenance standard for roads other than national highways.
On a perusal of the other provisions of the said Act as well, we do not find any particular rule-making power and/or power to issue directions or notifications vested in the State specifically related to grant of permits in respect of inter-State transport, or any consequential statutory requirement to publish such directions in the Official Gazette.
Accordingly, in the absence of any statutory requirement, it cannot be said that the State was entirely unjustified in adopting the FIFO principle merely on the ground that there was no notification in that regard.
Thus, neither of the two grounds cited by the learned Single Judge for allowing the writ petition and setting aside the resolution dated December 12, 2024, that is, absence of any notification and statutory infraction, are justified.
Be that as it may, we find that in the writ petition, the respondent no.1 herein also raised the question of the resolution and the modality of FIFO being vitiated by lack of transparency. The said question is, indeed, arguable and was required to be decided on merits by the learned writ court.
The said aspect having not been considered, we choose to relegate the matter to the writ court for a comprehensive consideration on the statutory/constitutional validity of the FIFO method adopted by the State in issuance of permits for inter-State transport and, consequentially, the validity/legality of the resolution dated December 12, 2024. We deliberately choose not to adjudicate on such questions by ourselves, since it would tantamount to the appellate court usurping the jurisdiction of the writ court and depriving all parties of a forum of challenge.
Accordingly, MAT 2123 of 2025 is partially allowed on contest, thereby setting aside the impugned judgment dated April 22, 2025 passed in WPA 1053 of 2025 and remanding the writ petition to be heard afresh by the concerned learned Single Judge having determination now, in the light of the above observations, on the limited question of the constitutional/statutory validity of the FIFO (First In First Out) methodology and consequentially the validity and legality of the impugned resolution dated December 12, 2024 on such limited ground.
CAN 1 of 2025 stands disposed of consequentially as well.
There will be no order as to costs.
Urgent Photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
I agree.