Sarjoo Prosad, C.J.
1. This is an application under Article 226, read with Article 227 of the Constitution of India. The petitioner has prayed for a writ of certiorari quashing the order of the Appellate Transport Authority, refusing, a stage carriage permit to the petitioner and granting the same to the respondent No. 4, Birendra Kumar Deb. He has also prayed that the respondents, including the State of Assam and the Transport Authorities, should be restrained from giving effect to the said order of the Appellate Transport Authority.
2. It appears that the Regional Transport Authority, Cachar, called for applications for the grant of permits in respect of two stage carriages on the Silchar-Hailakandi route in Cachar. The petitioner Rohini Kumar Bhattacharjee, along with, others, including the respondent No. 4, Birendra Kumar Deb, and one Ramcharitra Singh, submitted applications for the grant of permits on that route. After the applications were received, they were made available for inspection at the office of the Regional Transport Authority, Cachar, and duly published in the Gazette, inviting representations, if any, in connection with those applications, as laid down in Section 57 of the Indian Motor Vehicles Act, (Act IV of 1939). It is not disputed that there was no representation made, either by the respondents or any other person, in respect of the application filed by the petitioner.
The Regional Transport Authority, which is constituted of the Deputy Commissioner, Cachar, the Superintendent of Police, Cachar, the Executive Engineer, Cachar, and the District Transport Officer, Cachar, who is also the Secretary of the Regional Transport Authority, Cachar, and eight other non-official members, considered the applications at a meeting held for the purpose and found the petitioner to be a suitable and deserving applicant for a stage carriage permit on the said route. Accordingly, the petitioner was informed on 2-7-3-56 by a letter, under the signature of the Secretary, that the said Authority had been pleased to grant a stage carriage permit on the Silchar-Hailakandi route to the petitioner Rohini Kumar Bhattacharjee for a period of three years with effect from 1-4-56.
The petitioner was directed to place a fit vehicle on the road against the permit on or before 1-5-56, failing which, the permit was likely to be cancelled; and he was also called upon to deposit the requisite permit fee within fifteen days of the elate of issue of the letter. The Regional Transport Authority also granted another stage carriage permit to one of the applicants, Ram Charitra Singh. In compliance with the aforesaid order, the petitioner is alleged to have purchased a vehicle worth about Rs. 6,000/- intended to be used on the route in question, and placed it on the route, as required by the Authority. The petitioner also deposited the permit-fee and the taxes. and insurance fees, as directed.
In the mean time, respondent Birendra Kumar Deb, whose application for the grant of a permit had been refused, preferred an appeal before the Appellate Transport Authority, Assam against the order of the subordinate Authority. The petitioner claims that he had meanwhile commenced using the vehicle on the route in question for about a month and as half when the Appellate Authority issued stay orders, and the petitioner had to stop plying the stage carriage in question till the disposal of the appeal. Eventually, at its meetings held from the 11th to the 13th July, 1956, the Appellate Authority cancelled the permit granted to the petitioner, and in substitution thereof, granted a permit on the said route to respondent Birendra Kumar Deb. It is against this order that the petition is directed.
3. Mr. Ghose contends that the order of the Appellate Transport Authority refusing the grant of permit to the petitioner is illegal and without jurisdiction in that the Authority in question had exceeded the powers conferred on it by law. In the first place, Mr. Ghose argues that there being no appeal against the order granting a permit to the petitioner, and the respondent No. 4 never having objected to or made any representation against the petitioner's application for the grant of such a permit, the Appellate Authority had no jurisdiction whatsoever to go into the question of grant or refusal of a permit to the petitioner; that the only question which the Appellate Authority could decide was about the grant of a permit to the respondent Birendra Kumar Deb, and that it had no jurisdiction to pronounce upon the merits of the petitioner's claim, which had been set at rest by the Regional Transport Authority, there being no specific appeal against that part of the order.
To understand the implications of the argument, it may be useful to refer to a few relevant sections of the Indian Motor Vehicles Act (No. IV of 1939). Section 46 of the Act provides for an application for a stage carriage permit, and the particulars which have to be mentioned in an application for such a permit. Section 47 lays down the procedure to be followed by the Regional Transport Authority in considering applications for stage carriage permits; and, in granting or refusing a stage carriage permit, the particulars mentioned in that section have to be considered by the said Authority, some of those factors being ; (a) the interest of the public generally, (b) the advantages to the public of the service to be provided, (c) the adequacy of existing road passengers transport services, between the places to be served, etc. under Section 48 of the Act, it is open to the Regional Transport Authority, after consideration of the matters set forth in Sub-section (1) of Section 47, to restrict the number of stage carriages, and impose conditions on permits granted for the running of such carriages on particular routes.
In other words, the Regional Transport Authority can limit the number of stage carriages on any specified route within a region, and impose such other conditions for running stage carriages as specified in Section 48. These sections I have referred to just to give an idea of the various provisions which relate to applications for grant of permits, including considerations which arise in making such grants. The most important section, however, is Section 57, with which we are at present concerned. Section 57 lays down the procedure in applying for and granting permits. It is provided under this section that applications for contract carriage permits or private carrier's permits may be made, on dates appointed by the Regional Transport Authority for receipt of such applications, as it was done in the present instance.
On receipt of such' an application for a stage carriage permit or a public carrier's permit, the Regional Transport Authority makes the- application available for inspection at its office, and publishes) the application or the substance thereof in the prescribed manner, together with a notice of the date before which representations in connection therewith may be submitted, and of the date, on which, and the time and place at which, the application and the representations, if any, are to be considered. Clause (4). of the section lays down that no representation in connection with an application referred to earlier in the section, shall be considered by the Regional Transport Authority unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the person making such representation.
It is significant that no such representation was made admittedly in regard to the applications filed for permits in this case. When any representation such as is referred to in Sub-section (3) of the section is made, the Regional Transport Authority concerned shall dispose of the application at a public hearing, at which the applicant and the person making the representation shall have an opportunity of being heard, either in person or by a duly authorised representative, and when the Regional Transport Authority concerned refuses an application for a permit of any kind, it should give in writing the reasons for such refusal to the applicant.
4. The next important section is Section 64, which, provides for appeals against the order of the Regional Transport Authority. We are here concerned, in particular, with Clauses (a) and (f) of the section. Clause (a) says that any person aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, may prefer an appeal, within the prescribed time and in the prescribed manner, to the prescribed Authority or, in other words, to the Appellate Transport Authority. Similarly, Clause (f) provides that any person, being a local authority or police authority or an association which, or a person providing transport facilities who, having. Opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto may prefer an appeal to the prescribed authority namely, the Appellate Transport Authority.
Mr. Ghose contends that these two sub-sections of Section 64 are quite independent, and he argues that the respondent No. 4 not having opposed the grant of a permit to the petitioner by any representation made in that behalf, as provided by Section .57 of the Act, could not prefer an appeal under Clause (f) of Section 64, He contends that the appeal, if at all, made by the said respondent was under Clause (a) of the section, which entitled a person aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, to prefer such an appeal.
Mr. Ghose, therefore, points out that the scopes of the appeals in the two cases contemplated by Clauses (a) and (f) of the section, are altogether, different and the Appellate Authority in this case was merely confined to a consideration of the question whether the refusal of a permit to the respondent No. 4 was justified, and it was not open to the Appellate Authority to go into the other question whether the permit granted to the petitioner was or was not justified. If this argument of Mr. Ghose prevails, it would lead to many anomalous consequences.
It will confine the scope of the appeal under Clause (a) to a very limited issue; and it may have the effect of shutting out from the purview of the Appellate Authority most of the materials on record, which may have a relevant bearing on the considerations which relate to the grant or refusal of permits, as provided by Sections 47 and 48 and other relevant sections of the Act. The anomaly would be greater in those cases where only a limited number of permits are to be issued on a particular route and there are a larger number of applicants for the same. It may be that the Appellate Authority may consider, prima facie, a person, who has appealed before it, to be entitled to the grant of a permit, but vis-a-vis the other applicants, the Appellate Authority may take a different view of the situation, and vice versa.
It would be, therefore, unwise to limit the decision of the Appellate Authority by any such artificial restriction as suggested by the learned counsel for the petitioner. Section 64 does not impose any disability on the powers of the Appellate-Authority to go into the question, once there is a
competent appeal presented to it. Section 64 merely specifies the various classes of persons who are competent to prefer an appeal to the Appellate Authority : for instance, persons to whom permits have been refused or to whose permits conditions have been attached which might not have been attached; persons who are aggrieved by an order of revocation or suspension of: permits or any variation of the conditions thereof; persons aggrieved by an order of refusal to transfer permits to persons succeeding on the death of the holder of the permits, or persons aggrieved by the refusal of the State or a Regional Transport Authority to countersign permits. Similarly, Clause (f) of Section 64 has provided for an
appeal by a person who has opposed the grant of a permit and is aggrieved by the order granting the
same. But the section nowhere lays down that once
an appeal has been validly presented to the Appellate Authority, it is prevented from going into the entire matter which is relevant to the question of
grant or refusal of a permit. This may incidentally involve the refusal of permits to certain applicants where the number of permits on a particular route is limited. So, even if there was no representation made by respondent No. 4 against the petitioner, I do not think that, in appeal, the Appellate Authority was precluded from going into the question whether a permit should have been granted or refused, either to the petitioner or to some other
individual. On the route in question, there being
admittedly only two permits available, it was open to the Appellate Authority to decide whether the petitioner or the appellant before it or any other
person was entitled to the grant of those permits.
The Appellate Authority, therefore, could have considered the whole matter and could have cancelled the permits of the petitioner even if the appeal preferred by the respondent No. 4 was an appeal under Clause (a) of Section 64 of the Act. The section
does not restrict the scope of the appeal that may be preferred by the persons prescribed in the various categories thereof, nor does it prescribe a limit to the power of the Appellate Authority, and the Authority in question would be bound to consider all cognate matters after due observance of the rules of natural justice and the procedure prescribed
under the Act and the rules framed thereunder.
5. In support of his contention, Mr. Ghose has
referred to various decisions, which may be noticed as briefly as possible. He relies upon a decision in
Raghunath Patnaik v. State Transport Authority,
Orissa, AIR 1951. Orissa 81. In my opinion, the
case is of no assistance to him. What happened in that case was that on 16-4-49, the Regional Transport Authority in that case granted a conditional stage carriage permit to the petitioner here, which was later confirmed by another Regional Transport Authority which had jurisdiction over a part of the route.
Sometime in May 1949, the opposite party in that case, on coming to know of the conditional grant of a permit to the petitioner in that case, filed an objection; but this was beyond the period prescribed for filing objections under Section 57 (4) of the Motor Vehicles Act, and the objection was rejected. The opposite party then appealed to the Appellate Authority who, by its order, set aside the order of the Regional Transport Authority. It was held, in the circumstances of that case, that the right of appeal under Section 64 (f) of the Motor Vehicles Act was conferred on a person who had opposed the grant of a permit and was aggrieved by the grant thereof.
The opposite party, though he filed an objection, did so long after the period prescribed for filing objections. Consequently he could not be regarded as a person who had a right to prefer an
appeal under Clause (f) of Section 64 of the Act. It is on that ground that the appeal was held to be incompetent. The ratio decidendi of that case, therefore, is of no assistance to the learned counsel.
6. The decision in Nadar Transport, Tiruchirapalli v. The State of Madras, AIR 1953 Mad 1, is equally distinguishable. If, at all, that decision goes against the contention of the petitioner. It was pointed out there that the restriction in Section 57 (4) that no representations should be considered by the Regional Transport Authority, is confined to the hearing before that Authority, and it does not extend to the Appellate Authority. That, however, did not mean that it was open to the Appellate Authority to consider grounds or objections not urged by anybody before the Regional Transport Authority.
But if any person urged such objections to the grant of a permit, it would be open to another person who had not urged those objections, to take advantage of them and urge them as grounds of appeal before the Appellate Authority, and the Appellate Authority would be free to consider not only the representations, if any, made by the appellant, but also by other parties who were parties to the proceedings before the Regional Transport Authority. In other words, the decision supports the conclusion that it is open to the Appellate Authority to consider all the grounds which were available on record when the matter received consideration by the Regional Transport Authority; and that the attention of the appellate Authority should not be confined merely to the limited question whether the appellant should or should not have been granted the permit.
It is clear from this decision, as far as I can see, that when there is a competent appeal before the Appellate Authority, it may take into consideration all those objections which were urged or the materials which were placed, before the Regional Transport Authority, in deciding whether or not a permit should be granted to the appellant, even though the grounds of objection may not have been taken by the appellant himself as against the respondent or respondents to the appeal,
7. The other decision on which reliance has been placed by Mr. Ghose is the decision in Dholpur Co-operative Transport and Multi-Purpose Union Ltd. v. Appellate Authority, Rajasthan, AIR 1955 Raj 19. In that case, Chief Justice Wanchoo at one stage observed that if a person has no right of appeal under Section 64 (f), it seems unfair that he should get, by an appeal under S, 64(a) what he could not get because of the fact that he had no right of appeal under Section 64 (f). The learned Chief Justice further proceeded to opine that it, therefore, seemed to him fair that in an appeal under Section 64 (a), the Appellate Authority could only consider whether the refusal of the permit to the appellant was correct or not.
If it came to the conclusion that the refusal was correct, it would dismiss the appeal. On the other hand, if it came to the conclusion that the refusal was incorrect, it would allow the appeal and grant him a permit, He also appears to have rejected the contention that the Appellate Authority had authority to cancel anybody else's permit in an appeal under, Clause (a) of Section 64, if the number of permits to be granted was strictly limited, because, in his opinion, if the Appellate Authority decided to set aside the order of the Regional Transport Authority and grant a permit to the appellant, the only course open to the Appellate Authority was to grant one more permit to the person appealing, if it thought that the permit had been wrongly refused to the appellant.
These observations seems to favour the contention of the petitioner and, if they alone had been there, perhaps I would have been forced to disagree; but his Lordship recognised the difficulty which would arise in putting that; narrow construction upon the section; and eventually, as it appears from the judgment, he proceeded to accept the legal position that when there is an appeal before the Appellate Authority under Section 64 (a), the whole matter may be open for its consideration, provided a foundation has been laid by an objection of the nature specified in Clause (f) before the Regional Authority. If such foundation had been laid, there would be material before the Appellate Authority to decide whether a particular permit granted to a particular man should be cancelled; but if no such foundation had been laid, there would, generally speaking, be no ground before the Appellate Authority to decide whose permit was to be cancelled in order to give relief to an appellant under Section 64 (a) of the Act.
It is clear, therefore, that the judgment recognises the two principles, namely, that in case of a competent appeal under Section 64 (a), the whole matter may be open for consideration by the Appellate Authority, and that, if objections of the nature as contemplated by Section 64 (f) had been raised before the Regional Transport Authority at the instance of any of the claimants, then even in an appeal under Section 64 (a), by one of them, the Appellate Authority could adjudge whose permit was to be cancelled in order to give relief to the appellant.
These principles largely modify the observations made earlier, and in effect follow the principle laid down in the Madras decision which I quoted earlier. Mr. Ghose, therefore, also eventually modified his submissions and adjusted them in the light of the principles indicated above. It seems to me that the general observations made earlier by the learned Chief Justice are not really the foundation of his decision, but his decision rests acually upon the principles which I have been able to deduce from his judgment. To be on the safe side, I had better quote the learned Chief Justice's own language :
'The conclusion, therefore, to which we arrive at, is that where an appeal has been made under Clause (a) against the refusal of a permit, the Appellate Authority will generally have the right to give relief to the appellant by grant of a permit, but will not have any jurisdiction to cancel the permit granted to another person, unless a foundation has been laid before the Regional Transport Authority for an appeal provided by Clause (f) by an objection by somebody entitled to appeal under that clause. If such objection has been made, then it does not matter whether the particular person appeals or not. In such a case, on an appeal under Section 64 (a), the Appellate Authority may consider the objection of the nature specified in Clause (f) before the Regional Transport Authority and give its own decision in the matter. The same applies to the other clauses of Section 64.'
The learned Chief Justice found support for his decision on the point from the Madras view, on which he expressly relied.
8. A later decision of the Madras High Court on the same point further clarifies the matter. In that case, the Regional Transport Authority heard two applications, one for renewal of a permit, and the other for the issue of a permit on the same route. It passed an order granting the application for renewal, and stated therein mat the objections urged by the other applicant against the renewal on the ground of infringements by the permit-holder of the conditions, would be considered as and when they arose. The appeal filed by the objector was dismissed on the ground that no appeal lay against an order granting renewal of the permit.
The learned Judges, on an application under Article 226 of the Constitution, held that the Appellate Board, namely, the Central Road Traffic Board, had failed to exercise a jurisdiction vested in it by law, viz. of entertaining and disposing of the appeal preferred by the objector to them. It was pointed out that the applications were, in effect, applications for the grant of a permit, and as on that route, only one permit could be granted, the grant of a permit to one would automatically mean the refusal of a permit to the other. The appeal was, therefore, perfectly competent as an appeal against the order of the Regional Transport Authority refusing to grant a permit. The fact that such an appeal involved an attack on the order granting a renewal of a permit, would not prevent the appeal being an appeal against the refusal to grant a permit, to the objector.
The Appellate Board was, therefore, in error in presuming that it was not open to it in that appeal to consider the merits of the order granting renewal of the permit to the other party. The filing of the appeal by the appellant set at large the order of the Regional Transport Authority granting the renewal, and, therefore, the appeal had been wrongly rejected as incompetent. Td a similar effect is a decision of the Ajmer Judicial Commissioner's Court, which has been cited by the learned Senior Government Advocate for the respondents and adopted as a part of his argument.
The learned Judicial Commissioner there held, after, a review of all the relevant cases on the point, that in case of an appeal under Section 64(a), the Appellate Authority may consider an objection of the nature specified in Clause (f) of Section 64 before the Regional Transport Authority and give its own decision in the matter. In disposing of an appeal under Clause (a), the appellate Authority will have jurisdiction to consider all matters which could have been considered by the State Transport Authority when the matter received its consideration, and that the filing of the appeal sets at large the whole order of the Regional Transport Authority in the particular matter, involving the rights of all the claimants.
We, therefore, hold that the contention of the learned counsel for the petitioner that in an appeal under Clause (a) of Section 64, any objection of the nature specified under Section 64 (f), which would involve an adjudication of the grant or refusal of a permit to the petitioner, could not be considered, is unsound and cannot be entertained. In our opinion, the Appellate Authority had complete jurisdiction to consider all the relevant materials bearing on the point of grant or refusal of a permit, either in favour of one party or the other, if there was a competent appeal before it even under Section 64 (a) of the Act.
9. Mr. Ghose then argues that even if the Appellate Authority had a jurisdiction, to consider whether a permit should or should not be granted to the petitioner, in adjudicating upon the appeal presented by the respondent No 4, it had acted illegally and with material irregularity in taking into consideration factors which were not on the record and which the Regional Transport Authority had not considered at all. The Appellate Authority, of course, heard the petitioner in connection with the appeal, and in its order it proceeded to say that it had been, brought to its notice that the wife of the respondent, Srimati Rohini Bala Debi, had got a stage carriage permit at Sylhet on the Sylhet-Tamabil route, which had been proved by documentary evidence.
It also pointed out that it appeared from the record produced before the Appellate Board that
one Srimati Nihari Bala Debi, who was reported to be living with the respondent as an adopted daughter, had got a stage-carriage permit on the Silchar-Hailakandi route, and that the respondent, Sri Ro-him Kumar Bhattacharjee, was deriving the benefit of that permit. Reference was also made to some Police report from which it appeared to the Appellate Authority that the respondent Sri Kohini Kumar Bhattacharjee was an unfit person to hold a permit.
10. The observations of the Appellate Authority have been hotly contested by the petitioner, and the allegations have been completely denied on affidavit. These are questions of fact, and i the Appellate Authority had validly before it all those materials on which to decide, we would certainly have not interfered with its order. We are, however, faced with the situation that when the applications were duly notified by the Regional Transport Authority and published according to law, respondent or anybody else did not raise any objection to the entertainment of the applications of the petitioner on the grounds now alleged. Even if a representation on these grounds had been made before the Regional Transport Authority beyond the-period fixed, it was open to the said Authority to reject the same.
The Regional Authority consisted of individuals who held responsible offices in the administration of the District, and they were expected to know better the applicants concerned. Even then the law provided ample safeguards for this purpose, and ire case of any representation or objection being duly raised, the Regional Transport Authority would have heard the parties and, if necessary, decided on the genuineness or otherwise of the same. But this was never done. The Appellate Authority has for the first time taken notice of these allegations or objections, for which there was no foundation on the record.
We are informed that, in fact, the Appellate Authority itself did not collect any material on the point but left it to the respondent concerned to produce some papers before it. There was no guarantee about the authenticity of those papers, but it is not for us to pronounce upon the merits or otherwise of the objections which have been seriously controverted on behalf of the petitioner. We are only concerned to note whether it was open to the Appellate Authority to go into these new factors which were never presented to the Regional Transport Authority and decide the appeal on that basis.
We think that there being no foundation laid for these objections by any party at the earlier stage, and these materials being not duly on the record before the Appellate Authority, it had no jurisdiction to go into them and decide upon their basis that the petitioner was not entitled to the grant of a permit. There must be some finality to objections being raised. The law has provided an appropriate stage where the matter could be canvassed at the instance of the parties concerned, and if advantage is not taken or that earlier, the Appellate Authority cannot, of its own accord, or even at the instance of a party interested, make out a new case for the parties and decide on that assumption. Such a procedure is not only unwarranted in law, but leads to unhealthy precedents.
It is not permissible even to Courts of much wider, jurisdiction than the Appellate Transport Authority. Indeed if these allegations had any foundation in fact, there was nothing to prevent the Respondent No. 4 from making an application under Section 60 (1) (d) of the Act for cancellation or revocation of the permit granted to the petitioner
on the ground that it had been obtained by fraud or misrepresentation. But we do not understand how the Appellate Authority could, in dealing with an appeal under Section 64, act upon these allegations and assume the truth thereof for the purpose of deciding the appeal. In our opinion, therefore, the Appellate Authority clearly went beyond its jurisdiction in entertaining these objections and deciding the appeal on that basis.
11. It is, however, contended for the respondent No. 4 that even if the first part of the order of the Appellate Authority is eliminated from consideration, the decision should still stand in so far as the right of the respondent to the grant of a permit is concerned. Reliance hag been placed upon that part of the order where it is observed as follows :
'On the other hand, the appellant himself is a driver and experienced transport businessman, financially and otherwise suitable.'
It is urged that on this ground alone the appeal could have been determined by the Appellate Authority, as this would be a good ground for the grant of a permit in favour of the respondent; and that being so, the Court should refuse to interfere, because it was a decision given on merits. It is also suggested that it would be undesirable to issue a writ because, even if the appeal goes back to the Appellate Authority to decide the same according to law, the Authority may still make an order on the basis of the passage quoted above. This contention, however, ignores two important aspects of the matter.
The first is that the petitioner's permit was cancelled for reasons which had no foundation on the record and which, as we have held, the Appellate Authority had no jurisdiction to entertain. The Appellate Authority therefore, had to decide the matter judicially, whether, on the materials on record, the petitioner should not be entitled to the grant of a permit, he having an order of the Regional Transport Authority in his favour. Secondly, the order does not take notice of the case of the other claimant in the matter of granting a permit on this route.
The petitioner is justified in contending that, if the Appellate Authority took into consideration the question whether a permit should or should not have been granted to the petitioner, in dealing with the appeal of the respondent No. 4, it should have also taken into consideration the matter of grant or refusal of a permit to the other party, and then, as between all the claimants, decided as to who should have been entitled to the grant of the permit in question. The suitability or otherwise of the claimants could not be judged unless the case of each claimant or grantee had been considered by the Appellate Authority. There is undoubtedly a sound basis for this contention, and the Appellate Authority, in disposing of the appeal, was bound to take into consideration all these factors and then determine the appeal, as a quasi-judicial body should do.
Its failure to do so resulted, in our opinion in a decision which was not in accordance with law and was in excess of its jurisdiction. We accordingly allow this application, make the Rule absolute, and quash the order of the Appellate Authority. It would be open to the Authority concerned to determine the appeal according to law. We make no order as to costs.
Ram Labhaya, J.
12. I agree.