M.N. Roy, J.@mdashThis appeal from original judgment and order was presented against the determination dated February 27, 1989, made in Matter No. 5783 of 1988, by a learned Single Judge of this Court. In the writ proceedings, the petitioner Mafizul Rahaman, took various points for the grant of a stage carriage permit in his favours on the route, Moyna to Belpahar. But those prayers it has been stated were not at all considered by the Learned Trial Judge on merits, but he has disposed of the appeal by directing that until a new permit is granted in the concerned route by the Regional Transport Authority there would, be no prejudice caused, if both the said Mafizul Rahaman and one Tarun Kumar Dinda are allowed to ply their vehicles in the concerned route as temporary permit holders. It has also been directed by the Learned Trial Judge that Mafizul Rahaman should be allowed to ply on the concerned route on ad hoc basis and a temporary permit should be granted to him for that purpose. The Learned Trial Judge has further directed that such order, as made by him should not be treated as a precedent. It has further been recorded that the said Mafizul Rahaman and Tarun Kumar Dinda will ply their vehicles on ad hoc arrangements until permanent permits are granted and in case there is failure on the part of the permanent permit holder to comply with the requisition of the RTA concerned and the said RTA should "also furnish necessary documents to both the parties for the purpose.
2. Mr. Lodh, the Ld. Advocate for the appellant, claimed and contended, not only on merits, but also on the basis of the determinations as made by this court in the case of State Transport Authority v. Nirmalendu Das, 1989(1) CLJ 461 , that such direction to grant ad hoc permit u/s 62 of the Motor Vehicles Act, 1939 was improper and really contrary to the said Division Bench judgment, as indicated earlier. It was also submitted by him that since the route in question was a permanent one, the could not be any plying of a vehicles in excess of the ceiling and the effect of the Ld. Trial Judge''s determination was that in case the effect is given, there will be permit in excess of the ceiling, which is prohibited on the basis of the determination in the case of
3. It should be noted, here that Mr. Roy choudhury, appearing for the answering respondents and opposing the appeal, claimed the appeal to be not maintainable and it was his specific submission that the order as impeached should not be interfered with as the same was made on invitation of the parties. After going through the order in question, we do not find any justification to hold that the order was made on an invitation of the parties, as claimed. Mr. Roy choudhury further claimed and contended that even though various points on merits were taken, the Learned Trial Judge, in view of his determination as indicated has not really or at all considered those points on merits. We find that there is justification or in such submission of Mr. Roy choudhury.
4. We of course keep it on record that the direction to grant ad hoc permit by this court, as directed, was contrary to the earlier Division Bench Judgment, which is still holding the field and, as such, the judgment, as impeached, should be set aside on that ground alone and the appeal should be allowed.
5. In view of the above, we set aside the judgment and keep it on record that while making this order we have not considered any submission on merits and all points, as taken, are kept open and to be decided by the Learned Trial Judge, who will be presently having the jurisdiction over this matter.
6. As such, we allow this appeal and remit the case back to the Learned Judge, personally having jurisdiction over this matter for a determination in accordance with law and on merits. There will be no order as to costs.
All parties to act on a signed copy of the operative part of this judgment on usual undertaking.
