ORDER
A.K. Sinha, J.
1. In this Rule the petitioner prays for quashing certain orders made by the respondents Nos. 2 and 3 cancelling the petitioner’s permanent stage carriage permit. Briefly the facts are as follows:
The petitioner was granted a permanent stage carriage permit in respect of Bus No. WBR 396 on Route No. 84 granted by the respondent No. 3. By a show cause notice dated 19-9-1903 the petitioner was asked to submit his explanation against the proposed order of cancellation of his said permit on the ground that the said bus was being operated upon by another person named Tarapada Saha. The petitioner submitted his explanation but the respondent No. 3 not being satisfied cancelled the petitioner’s permit under Section 60(1)(a) of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act).
2. Against this order the petitioner preferred an appeal to the State Transport Authority. The appeal was heard and dismissed by the Appellate Sub-Committee, the respondent No. 3 by its order dated 27-7-64. That is how the petitioner felt aggrieved and obtained the present Rule.
3. Upon these facts several grounds were taken but Mr. Moitra on behalf of the petitioner contended in the first place that there was no transfer of vehicle or the permit by the petitioner and, therefore, the order of cancellation on the ground of such transfer was bad in law. In the second place, he contended that even assuming that there was such transfer, the Regional Transport Authority or the Appellate Authority had no power or jurisdiction to cancel such permit as restriction on transfer was not a condition on breach of which the permit was liable to be cancelled.
4. In support of the first contention it was submitted that the order of the respondent No. 3 (annexure B to the petition) would show that the permit was cancelled under Section 60 (1) (a) on the view that the permit-holder allowed the vehicle to be operated by another person in flagrant disregard of the fundamental condition of the permit. The Appellate Authority also look the view that the Power of Attorney executed by the petitioner in favour of his Manager and Financier was a complete abdication in his favour from all the rights and privileges the petitioner was entitled under the permit held by him. This view was patently erroneous. In any event, by virtue of the Power of Attorney the petitioner did not cease to own the vehicle. Mr. Moitra also drew my attention to Section 31(1) of the Act and contended that the transfer of the vehicle could be made only in the manner laid down there.
5. I think the first question for consideration really in this case is whether the petitioner who is the holder of the permit ceased to own the vehicle covered by such permit as contemplated under Section 60(1) (c) of the Act. The relevant portion of the order made by the Appellate Authority runs thus:
“We found that the power of attorney executed by the appellant was a complete abdication in favour of his Manager and Financier from all the rights and privileges to which he was entitled under the permit held by him. We accordingly hold that the R. T. A. acted rightly in cancelling his permit.”
6. From the above order it seems to me quite clear that the real question in controversy before such cancellation order could be made was not at all decided. There is no finding that by virtue of the power of attorney executed in favour of the petitioner’s Manager and Financier the petitioner ceased to own the vehicle. What was staled was that by virtue of such a document there was a complete abdication from all rights and privileges to which he was entitled under the permit. These are entirely vague and unspecific and in any case, cannot be treated as a decision on the material question. There are number of rights and privileges attached to the permit contained in several provisions of the Motor Vehicles Act but breach of any of these rights and privileges does not warrant cancellation of the permit. The permit may be cancelled or suspended only under certain breach of conditions specified under Sub-section (3) of Section 59 or of any condition or several contingencies contemplated under Sub-clauses (b) to (f) under Section 60(1) of the Act. In the instant case, the notice to show cause upon the petitioner was issued on grounds contained under Section 60(1)(a) and (c). Although such is the notice, it appears that the respondent No. 3 cancelled this permit by a resolution on the only ground that the permit holder allowed the vehicle to be
operated by fundamental and flagrant breach of the condition of the permit under Section 60 (1) (a) of the Act. This is neither a condition under Section 59 (3) nor a contingency contemplated under Section 60 (1) (c) of the Act. Such a resolution seems to be wholly inconsistent and on the face of it erroneous.
7. There is again no condition either under the Act or any condition attached to the permit prohibiting operation of a stage carriage by another person. It is only in case of transfer of permit without the consent of the Authorities concerned operation of such a stage carriage by transferee is prohibited under Section 61 (1) of the Act. Nevertheless, in such a case it is doubtful whether such a transfer of permit will entail cancellation of the permit on grounds enumerated under provisions of Section 60 (1) and Sub-clauses (a) to (f). Be that as it may, in the instant case one of the proposed grounds for such cancellation as noticed earlier was that the petitioner ceased to own the vehicle as provided in Section 60 (1) (c) of the Act.
8. Mr. Banerjee on behalf of the respondents sought to contend that on the petitioner’s own showing he ceased to become the owner of the vehicle on the basis of the hire-purchase agreement embodied in the so-called power of attorney executed by him in favour of his Manager. For this, he relied on definition of ‘owner’ under the Act which means also a person in possession of the vehicle on the basis of the hire purchase agreement. This may or may not be correct. For, in the affidavit-in-op-position on behalf of the respondents it has
been stated in paragraph 8 that the power of attorney had already been revoked by the petitioner. So this becomes primarily a disputed question of fact which cannot be conveniently decided by this Court. In any event, if it is for the Appellate Sub-Committee to decide as to whether in fact the petitioner ceased to be the owner of the vehicle taking into consideration all these material documents along with surrounding circumstances. It is only on a proper decision on this question of fact will depend further action by the respondents. Considering, therefore, the matter from this aspect the impugned order passed by the Appellate Sub-Committee cannot be sustained as valid.
9. In the above view of the matter it is unnecessary to examine the correctness of the second contention raised by Mr. Moitra and I do not express any opinion on it.
10. The result is the petition succeeds in part. The impugned order passed by the Appellate Sub-Committee is quashed. The matter will now go back to the Appellate Sub-Committee for a fresh decision in accordance with law and in the light of the observations made above. All other objections are left open.
11. The Rule is made absolute to the extent indicated above. But there will be no order as to costs.
12. Let a writ both in the nature of mandamus and certiorari issue accordingly.
