Altamas Kabir, J.@mdashThe petitioners are the joint owners of the vehicle bearing Registration No. WBR-3165 It appears that the petitioners jointly applied for a route permit in route No. 34-C (Esplanade to Noapara) and after considering the petitioner joint application, the Regional Transport Authority, Calcutta Region, issued an offer letter to the petitioners in their joint names on 24th August, 1983, in respect of a temporary State Carriage permit in the route in question. A copy of the said offer letter has been made annexure "A" to the writ petition. According to the petitioner, on receiving the said offer letter, they jointly applied to the United Bank of India. B.T. Road Branch, Calcutta, for a transport loan for purchasing the above-mentioned vehicle. The loan was duly sanctioned in the joint names of the petitioners and with the said loan they purchased the aforesaid vehicle and have been prying the same since the month of February, 1984 till August, 1991, on the-basis of temporary permits issued from time to time in the joint names of the petitioners in the existing vacancies of the aforesaid routs no 34-C.
2. This position is not disputed by the respondents and some of the temporary permits have been annexed to the writ petition.
3. According to the petitioners, the last temporary permit granted to them was valid upto 1st August, 1991. Thereafter, an usual, the petitioners made an application for grant of a fresh permit. The petioles'' grievance is that on this occasion the concerned authorities remained silent and did not issue any permit as on earlier occasions, on 3rd September, 1991, the petitioners made a joint representation to the Secretary, Regional Transport Authority, Calcutta Region, informing him of the facts relating to joint-ownership of the vehicle and that they had been informed by his office that route permit could on longer be issued in the joint names of the petitioners. The petitioners informed the said respondent No. 2 that it would not be possible for them to abolish the Co-proprietorship or the partnership and that they should be granted route permit in their joint names as in previous year.
4. The further grievance of the petitioners is that despite their representation and despite the fact that the vehicle was purchased in the joint names of the petitioners pursuant to the offer letter made to them jointly and also keeping in mind the fact that the transport loan had been given by the Bank to the petitioners in their joint names/on the basis of the said offer letter, the respondent concerned had wrongfully withheld the grant of permit to the petitioners, without any proper ground for the same.
5. Appearing for the writ petitioners, Smt. Bandana Basu submitted that the respondents had illegally and wrongfully withheld the grant of fresh permit to the petitioners and that the ground sought to be taken for such refusal was not available to the concerned respondents. Smt. Basu submitted that the ground taken for refusal to grant a fresh permit was that a joint permit could not be issued in the name of the petitioners in view of the bar imposed u/s 71 of the Motor Vehicles Act, 1988. Smt. Basu submitted that the said provision would have no application as far as the petitioners were concerned, since the petitioners were not applying for a new permit but were existing operators on the route in question.
6. In this context, Smt. Basu referred to some of the provisions of the Motor Vehicles Act. 1988. Smt. Basu first referred to Section 104 of the Motor Vehicles Act, 1988, which relates to restrictions on grant of permits in respect of a notified area or notified route. Smt. Basu submitted that in respect of notified areas or notified routes where schemes had been published under Sub-section 3 of Section 104 of the Act, no permit could be granted, except in accordance with the provisions of such scheme. Smt. Basu submitted that the proviso to Section 104, however, empowered the State Transport Authority or the Regional Transport Authority, as. the case may be, to grant temporary permits in respect of such notified areas or notified routes, subject to the condition that such permits would cease to be effective on the issuance of a permit to the State Transport Undertaking in respect of such area or route. In this connection. Smt. Basu also referred to Section 99 of the aforesaid Act. which makes provision for preparation and publication of schemes in notified areas and/or notified routes.
7. Smt. Basu also referred to the provisions of Section 217 of the aforesaid Act which relate to repeal and saving with regard to the Motor Vehicles Act. 1939. Smt. Basu sought to reply on clause (b) of Sub-section (2) of Section 217 which provides that notwithstanding the repeal of the Motor Vehicles Act, 1939, any certificate of fitness or registration or license or permit issued or granted under the repealed enactment would continue to have effect after the commencement of the new Act under the same conditions and for the same period as if the new Act had not been passed. Smt. Basu urged that having regard to the provisions of Section 217 of the new Act, the respondents were not entitled to withhold grant of fresh permit in the same manner in which it was granted earlier. According to Smt. Basu, although, the Act came into force in 1988, successive permits were granted to the petitioners jointly even thereafter, till the last permit expired in the month of August, 1991. Smt. Basu further submitted that an "individual", as mentioned in the proviso to Sub-section (1) of Section 71 of the above Act did not necessarily mean only one person. On the other hand, the "individual" referred to in the said proviso would also include a group of persons forming an entity in law, such as company, an association or any other corporate body. In support of her said submissions. Smt. Basu relied on the decision of the Punjab High Court in the case of Nav Hind Finance and Transport (Pvt) Ltd. Delhi & anr. vs. Chief Commissioner, Delhiand Ors., reported in AIR 1956 Pun 473 , and the decision of the Andhra Pradesh High court in the case of
8. Smt. Basu sought to urge that in the instant case also the petitioners had a joint existence and must be included with the definition of ''individual'' as mentioned in the proviso to sub-section 1 of Section 71 of the aforesaid Act.
9. Mr. B.K. Sinha learned Advocate appearing for the respondent, submitted that the proviso to sub-section 1 of Section 71 being a bar to the grant of a permit to two persons, the Regional Transport Authority, Calcutta Region, was not empowered under the statute itself to grant a permit in the names of the two petitioners jointly. Mr. Sinha submitted that, although, even after the enactment of the new Motor Vehicles Act in 1983, permits had been granted to the petitioners the respondents had realised their mistake and since there can be no estoppel on statute were unable to grant a fresh permit in the Joint names on the petitioners. Mr. Sinha further submitted that the petitioners Had been informed that one of them should apply for the grant of new permit and the same would be considered favorably by the concerned respondents. Mr. Sinha submitted that since the law prohibited grant of joint permits in the circumstances mentioned in the proviso to sub-section 1 of Section 71, the concerned respondents could not accede to the request made by the petitioners in their joint representation dated 3rd September, 1991, even if the said respondents had a mind to do so.
10. Mr. Sinha submitted that the provisions of Section 217 of the Motor Vehicles Act, 1988, had no manner of application in the petitioners'' case, inasmuch as, the same related to saving of actions taken under the old Act prior to the coming into force of the new Act.
11. Mr. Sinha submitted that after the new Act had come into force in 1988, the respondents were now required to act under the provisions of the new Act.
12. Having regard to the submissions made on behalf of the respective parties, there can be little doubt that where a route covers 50 kilometres or less, the Regional Transport Authority concerned, while considering an application for grant of a Stage Carriage permit, would be entitled to grant such permit only to an individual or to a State Transport Undertaking. There is also little doubt that an individual does not only mean one human being but also includes Corporate Bodies or groups of human beings forming one unit, such as in the case of a Company, as Association or even a Partnership concern. All that is necessary is that the ''individual'' must be a single entity in the eye of law having a separate identity of his or its own.
13. What falls for the consideration of this Court is whether the case of the petitioners comes within the bar imposed under the proviso to sub-section 1 of Section 71 of the aforesaid Act.
14. Firstly, except for a bare reference to Section 71 of the aforesaid Act, nothing more has been specified in the affidavit-in-opposition affirmed on behalf of the respondents as to how the respondents were prevented u/s 71 of the aforesaid Act from granting a fresh permit in the joint names of the petitioners. In fact, no specific case has been made out in that behalf in the said Affidavit-in-Opposition.
15. Secondly, the Affidavit-in-Opposition does not disclose as to whether the permit granted to the petitioners was in respect of a route covering 50 kilometres or less, so as to bring it within the ambit of the proviso to Sub-section 1 of Section 71 of the aforesaid Act. In the absence of such details, it is difficult to accept the submissions made on behalf of the respondents concerning Section 71(1) of the aforesaid Act. In fact, the arguments advanced on behalf of the respondents must be held to be without proper factual basis.
16. Even if it be assumed that the bar imposed under the aforesaid proviso is applicable to the petitioner''s case, even then one will have to take into consideration the fact that the petitioners were issued an offer letter in their joint names and on the basis of such offer letter the petitioners jointly applied to the Bank for grant of a transport loan and such transport loan was granted to the petitioners jointly giving rise to joint liability for re-payment of the said loan. Such circumstances point to the existence of a partnership between the two petitioners in the matter of running of the vehicle in question, particularly when the law provides for oral partnership. Under the law relating to partnerships as it now stands, a partnership in India may be formed orally and may be presumed from circumstantial evidence. Section 4 of the Indian Partnership Act, 1932, defines partnership to be the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all.
17. The petitioners'' case appears to be one of verbal partnership with an agreement to share the profits, which brings the petitioners within the definition of ''individual'' for the purpose of the proviso to sub-section (1) of Section 71 of the above Act. If that be so, the bar imposed under the said proviso cannot be applicable to the petitioners.
18. There is yet another aspect of this case and that is whether the provisions of Section 71 would have application in respect of temporary permits granted in the circumstances mentioned in Section 87 of the Motor Vehicles Act, 1988 or Section 104 thereof. It has to be kept in mind that the petitioners have been running their vehicle since 1984 on the basis of temporary permits granted in the circumstances mentioned in Section 104 of the aforesaid Act. The question arises as to whether, although, the petitioners are required to be granted a fresh temporary permit each time the existing permit expires, the application for the said purpose can be said to be a fresh application for a State Carriage permit.
19. It appears from the scheme of the Motor Vehicles Act. 1988, that temporary permits are granted in certain special cases and are obviously a category of permits which are different from permanent permits. The scheme of the Act relating to application and grant of permit since, in my view, to refer to permanent permits and the exception to grant of such permanent permits have been specifically provided for in Section 87 and in Section 104 of the Motor Vehicles Act, 1988. Had the petitioners been granted a permanent permit in 1985, the said question would not have arisen since the petitioners would not be required to obtain a new permit on the expiry of the old permit. In such a situation, the provisions of Section 71 would possibly have no application and renewal would have followed as a matter of course, subject to the operator satisfying all the required conditions for such renewal. It is only while considering an application for grant of a fresh permit of a permanent nature that the provisions of Section 71 appear to be attracted. This will be apparent from sub-section 2 of Section 87 which provides that notwithstanding anything contained in sub-section 1, a temporary permit may also be granted in respect of any route or area where no permit could be issued u/s 72 or Section 74 or Section 76 or Section 79 in respect of that route or area in question by reason of an order of a Court or other competent authority restraining the issuance of the same. In such event, it would be open to the authorities to issue such temporary permits without taking into consideration the bar imposed under the proviso to sub-section 1 of Section 71 of the said Act.
20. Accordingly. I am of the view, that this writ application must succeed on all the above counts.
21. The respondent no. 2 is directed to issue route permit as before in the joint names of the petitioners in respect of their vehicle in respect of route no. 34-C, without reference to the proviso to sub-section (1) of Section 71 of the Motor Vehicles Act, 1988, subject to the petitioners complying with all the necessary formalities for grant of such permit. Such permit must be granted to the petitioners within 15(fifteen) days from the date of communication of this order. There will be no order as to costs. Let a xerox copy of this order be made available to the learned advocate on record for the petitioner on her undertaking to apply for and to obtain the certified copy of the same.
