THE STATE OF WEST BENGAL AND OTHERS vs BIJOY NASKAR AND ANOTHER

Form No. J(2)


In the High Court at Calcutta

Civil Appellate Jurisdiction

Appellate Side







Present: The Hon’ble Justice Sabyasachi Bhattacharyya
And
The Hon’ble Justice Sandip Kumar De








MAT 2123 of 2025
IA No: CAN 1 of 2025
CAN 2 of 2025

The State of West Bengal and others
Vs.
Bijoy Naskar and another





For the appellants : Mr. Nilanjan Bhattacharjee, SSC,
Mr. Samrat Mukherjee, AGP,
Ms. Jayita Dhar Chakraborty, JGA,
Mr. Saikat Dey

For the writ petitioner/
respondent no.1 : Mr. Barun Kumar Samanta

For the proforma
respondent no.2 : Mr. Sankar Nath Mukherjee,
Sk. Samim Akhtar


Heard on : 01.09.2026


Judgment on : 01.09.2026











Sabyasachi Bhattacharyya, J.:-



1. Affidavit-of-service filed in Court today be kept on record.

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2. The present appeal has been preferred after a delay of about 196
days.
3. 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.
4. It is submitted that the delay was not wilful or deliberate and that
there was no mala fides behind the delay.
5. 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.
6. 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.
7. 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.
8. Accordingly, CAN 2 of 2025 is allowed on contest, thereby condoning
the delay in preferring MAT 2123 of 2025.

9. There will be no order as to costs.

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10. 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.
11. 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.
12. 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

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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.
13. 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.
14. 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.
15. Secondly, it is argued that by itself, the FIFO method is not
transparent and is violative of principles of equality and justice.
16. 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,

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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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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,

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Section 71(3) of the said Act, none of the said provisions directly
pertain to inter-State transport.
22. 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.
23. 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.
24. 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

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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.
25. 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.
26. 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.
27. 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.

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28. 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.
29. 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.
30. 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.
31. CAN 1 of 2025 stands disposed of consequentially as well.

32. There will be no order as to costs.

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33. Urgent Photostat certified copies of this order, if applied for, be made

available to the parties upon compliance with the requisite formalities.









(Sabyasachi Bhattacharyya, J.)
I agree.




(Sandip Kumar De, J.)


AD-09
TN