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Andheri Marol Kurla Bus Service Vs. the State of Bombay - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicle
CourtMumbai High Court
Decided On
Case NumberO.C.J. Miscellaneous Petition No. 299 of 1956
Judge
Reported in(1958)60BOMLR1098
AppellantAndheri Marol Kurla Bus Service
RespondentThe State of Bombay
DispositionPetition dismissed
Excerpt:
motor vehicles act (iv of 1939), sections 47, 64(f), 76, 46(c), 58(3) - bombay motor vehicles rules, 1940, rule 51--constitution of india, article 19(1)(g)--right of making representations under section 47 whether restricted to persons or bodies enumerated in the section--regional transport authority whether competent to consider circular of government adumbrating policy of nationalisation of transport services when granting or refusing permit under section 47--granting of licence to one and refusing it to another to carry on business when constitutes monopoly which is in contravention of article 19(1)(g)--application under rule 51 whether to be a proper application and whether regional transport authority must determine what is not a proper application--whether under rule 76 appeal must.....tendolkar, j.1. this is a petition by the andheri marol kurla bus service, a partnership registered under the indian partnership act, for an appropriate writ, direction or order quashing an order refusing transport permits to the petitioners passed by the regional transport authority, substantially upheld, with a variation that is not material for the purposes of this petition, by the state transport authority, and confirmed in second appeal by the state of bombay. respondents nos. 1 to 5 were members of the regional transport authority at different relevant times. respondents nos. 7 to 12 are the members of the appellate committee of the state transport authority. respondent no. 13 is the state of bombay and respondent no. 14 is the municipal corporation of greater bombay in its capacity.....
Judgment:

Tendolkar, J.

1. This is a petition by the Andheri Marol Kurla Bus Service, a partnership registered under the Indian Partnership Act, for an appropriate writ, direction or order quashing an order refusing transport permits to the petitioners passed by the Regional Transport Authority, substantially upheld, with a variation that is not material for the purposes of this petition, by the State Transport Authority, and confirmed in second appeal by the State of Bombay. Respondents Nos. 1 to 5 were members of the Regional Transport Authority at different relevant times. Respondents Nos. 7 to 12 are the members of the Appellate Committee of the State Transport Authority. Respondent No. 13 is the State of Bombay and respondent No. 14 is the Municipal Corporation of Greater Bombay in its capacity as the Corporation that runs the B.E.S.T. Bus Services in Bombay, to whom a permit for the routes for which the petitioners were also applicants was granted by the Regional Transport Authority.

2. A little history which is set out in the petition is relevant in that it provides the background for the matters that have now been raised for adjudication. It appears that the petitioners' partnership consisted of three partners-Karamchand, Amirchand and Haji Validad Hassan. All these three partners were running private buses prior to 1933 and continued to do so till 1938 when they formed the partnership. Permits were granted to the partnership by the D.S.P., Bombay, up to 1939, and by the Eegional Transport Authority after the Bombay Motor Vehicles Act came into force. In 1940 a permanent permit was issued to them for a period of three years and it was renewed again up to 1947. It appears that on July 8, 1947, the Provincial Transport Officer wrote a letter to the Regional Transport Authority and in that letter under the heading 'Stage Carriage Permits' it was stated:

The ban on issue and renewal' of regular permits exists and in no case is to be ignored. All stage carriage permits are to be issued or renewed on temporary basis.

The letter further seeks to point out that, although previous letters indicated that Government's prior permission must be obtained in order to issue even a temporary permit, no such permission need thereafter be obtained if a permit was issued on a temporary basis for four months at a time. Now the ban on issue and renewal, which is referred to in this letter and which appears in inverted commas in this letter itself, must apparently have been contained in some earlier letter or circular; but no such letter or circular has been forthcoming. Subsequent to the issue of this letter, in so far as the petitioners were concerned, they were issued temporary permits for four months at a time. The last of such permits was issued in October 1954, effective till December 31, 1954. These were route permits as opposed to area permits. At the same time, notwithstanding the letter of July 8, 1947, the B.E.S.T. Undertaking was given a permanent permit for the entire area of Greater Bombay for a period of three years in 1947 and the permit was renewed in 1950 for a period of five years from August 7, 1950, till August 6, 1955, so that in their case the letter of July 8, 1947, was ignored and not given effect to and they received a favoured treatment from the Regional Transport Authority.

3. On June 8, 1950, the Regional Transport Authority invited applications by notification in the Government Gazette for permits to operate buses inter alia upon the Andheri-Marol and Andheri-Kurla routes on a temporary basis in accordance with the instructions in the letter of July 8, 1947. The petitioners applied for such permits and the Regional Transport Authority, by its letter dated October 9, 1950, intimated to the petitioners that they were allowed to continue with the permits then held by them for the Andheri-Kurla and the Andheri-Marol routes:

on the condition that as and when under the nationalisation scheme, the B.E.S.T. Transport Committee (Undertaking), finds it possible to take over the operation of the said route, your permit will be withdrawn and you will cease to be an operator for the said route.

This letter appears to indicate that the Regional Transport Authority at any rate understood that the object of Government was to bring about nationalisation ultimately and that is why temporary permits were to be issued and not permanent permits. They also appear to have taken the view, which appears to me to be completely untenable, that granting the permits to the B.E.S.T. Undertaking was nationalisation of the bus services. The B.E.S.T. Undertaking is owned and operated by the Bombay Municipal Corporation; and giving bus services to them may at best be municipalisation and certainly not nationalisation. Thereafter the permits of the petitioners were continued on a temporary basis every four months, and, as I have stated earlier, they were all due to expire on December 31, 1954. On November 11, 1954, the Secretary, Regional Transport Authority, wrote to the petitioners pointing out that a permanent permit for five years from August 7, 1950, to August 6, 1955, for the entire Greater Bombay area had been granted to the B.E.S.T. Undertaking, and that temporary permits were granted to the petitioners on certain routes because the B.E.S.T. Undertaking was not in a position to run services on the entire area that was covered by the permits. An intimation was further given that, as the B.E.S.T. Undertaking was now ready to run their services on the routes operated by the petitioners, the necessity for the temporary permits issued to the petitioners had ceased to exist and no further permits would be issued to them. There was some further correspondence and on December 8, 1954, the Secretary of the Regional Transport Authority reiterated what he had said in his letter of November 11, 1954, and intimated that, as the necessity for grant of temporary permits to the petitioners would cease from January 1, 1955, on account of the introduction of the B.E.S.T. buses on the routes covered by the permits, the application of the petitioners for grant of temporary permits may be refused. Faced with this situation, the petitioners filed a petition in this Court, being Misc. Application No. 473 of 1954, to compel the Regional Transport Authority to issue permits to the petitioners on the routes for which they already had temporary permits. At the hearing of this petition, a consent order was taken which inter alia provided that the existing temporary permits given to the petitioners would continue 'till the final disposal of the application for permanent permits' and also for some period beyond such disposal in order to enable the petitioners to exhaust all the legal remedies. The consent terms also recited a letter dated January 15, 1955, by which the Regional Transport Authority had withdrawn their letter of December 8, 1954, which had already been referred to before. The consent order was taken in Court on February 2, 1955.

4. Now it appears that on December 10, 1954, the petitioners had applied for a route permit for the Andheri-Marol, Andheri-Kurla, and Marol-Goregaon-via-Aarey Colony routes. Paragraph 8 of the prescribed form for application requires that particulars of the time-tables proposed should, be appended; but to this application no such particulars were appended. It also appears that the B.E.S.T. Undertaking had made an application for an area permit for the municipal limits of Greater Bombay on a date which is blank. There was another application by the petitioners made on January 8, 1955, and this application was for the limits of the city of Bombay. As required by the rules, these three applications were published in the Bombay Government Gazette dated March 3, 1955, and intimation was given that the applications would be considered by the Regional Transport Authority at its meeting to be held on April 27, 1955, and that any representations for or against the applications that any one may wish to make must be submitted to the office of the Regional Transport Authority so as to reach not later than March 19, 1955. It further appears that on March 22, 1955, the petitioners presented a fresh application for the same routes for which an application had been made on December 10, 1954; but this time they annexed to the petition the time-tables which had not been annexed to the first petition which had been advertised. This petition was gazetted in the Bombay Government Gazette dated April 14, 1955. The date notified for the hearing of the application was May 25, 1955, and representations for or against the application were invited so as to reach the office of the Regional Transport Authority not later than April 30, 1955.

5. At the meeting of the Regional Transport Authority on April 27, 1955, it is the case of the petitioners that their counsel made submissions only in regard to their application for routes within the limits of the city of Bombay dated January 4, 1955, and did not make any submissions with regard to their application dated December 10, 1954, relating to the three specified routes as the same routes were the subject-matter of the second application, the hearing of which had been fixed for May 25, 1955. The petitioners also allege that at this meeting they objected to the participation in the said meeting of Mr. M.L. Bhambri, who was at the time Secretary of the Regional Transport Authority on the ground that he had on an occasion in March 1955 and also on that very day expressed an opinion adverse to the petitioners and had thereby prejudged the matter. The petitioners also say that at this meeting they drew the attention of the Regional Transport Authority to the fact that the petitions had not been posted on the notice-board at the office of the Collector of the districts concerned as required by Rule 51 of the Bombay Motor Vehicles Rules, 1940. The objections of the petitioners were over-ruled by the Regional Transport Authority. It appears that thereafter the Regional Transport Authority by an order dated May 11, 1955, disposed of the first two applications that were presented by the petitioners and which were advertised in the Gazette dated March 3, 1955. The application for a permit within the limits of the city of Bombay was rejected and so was the route application in so far as it concerned the Andheri-Marol and Andheri-Kurla routes. But a temporary permit was issued to the petitioners for the Marol-Goregaon-via-Aarey Colony route for four months; and a permit was also issued to the B.E.S.T. for all the routes within the municipal limits of Greater Bombay, the duration of this permit also being four months. Thereafter at the hearing of the second application of the petitioners before the Regional Transport Authority on May 25, 1955, the petitioners allege that they protested that their new application had been wrongly disposed of by the order dated May 11, 1955, without hearing them, that the said Authority thereupon stated that since the application had been disposed of no hearing was necessary, that no hearing therefore took place, and that thereafter by an order dated June 8, 1955, the order that was made on the route application on May 11, 1955, was repeated. Against this order the petitioners filed an appeal before the Appellate Committee of the State Transport Authority. The said Appellate Committee called for a report and remarks from Mr. Bhambri, the Secretary of the Regional Transport Authority; and it is the petitioners' complaint that they were never shown this report and knew not what was in it, but that the report was taken into account behind their back by the Appellate Committee of the State Transport Authority in disposing of their appeal. It appears that the petitioners also objected to the constitution of the Appellate Committee in so far as Mr. M.M. Chudasama, who was a member of the Regional Transport Authority in his official capacity as Commissioner of Police, Bombay, had by that time become a member of the Appellate Committee of the State Transport Authority by virtue of having been elevated to the post of Inspector General of Police. This objection was met by the Appellate Committee merely by Mr. Chudasama not sitting to hear the appeal. The Appellate Committee confirmed the decision of the Regional Transport Authority in rejecting the application for the routes Andheri-Marol and Andheri-Kurla, but converted the temporary permit which had been granted for the Marol-Goregaon route into a permanent permit for a period of three years. They also converted the permit that was granted to the B.E.S.T. Undertaking for a period of four months into a permanent permit for three years. Against the decision of the State Transport Authority the petitioners appealed to the State of Bombay, but the State rejected the appeal and confirmed the decision of the State Transport Authority. The petitioners have presented this petition by which they challenge all these three orders of the Regional Transport Authority, of the Appellate Committee of the State Transport Authority as well as of the State of Bombay.

6. Now it is clear, having regard to the decision of a Division Bench of this Court in Sipahimalani v. Fidahussein (1955) 58 Bom. L.R. 344, that the final order in these proceedings is the order of the State of Bombay and that is the order that has to be successfully challenged before the petitioners can obtain any relief. But in so far as the order may be affected by any inherent vice either in the order of the Regional Transport Authority or the State Transport Authority, such matters would necessarily have to be considered in determining whether the order of the State of Bombay is a good and valid order.

7. On behalf of the respondents, it is denied that the petitioners' application for routes was not heard on April 27, 1955; and it is averred that it was in fact heard, but for which a permit for the Marol-Goregaon route could not have been granted to the petitioners. It is denied that there wag no publication as required by Rule 51. It is denied that Mr. Bhambri had expressed any opinion as alleged and was, therefore, disqualified from acting as a member of the Regional Transport Authority in disposing of the application. It is further averred that when, at the meeting of May 25, 1955, counsel for the petitioners was asked whether he had anything more to urge than what he had urged on April 27, 1955, he stated that he had nothing to urge. The respondents contend that, in so far as Mr. Chudasama being disqualified from acting as a member of the Appellate Committee is concerned, the objection was sufficiently met by his not so acting. The State Transport Authority admits that a report was called for in accordance with the practice to which I will refer later, but avers that the State Appellate Committee did not consider or rely on, or in any way base its decision on, anything contained in the report in disposing of the appeal. By a late amendment of the petition, the petitioners have also averred that the State of Bombay had seen this very report and had taken it into account, and that the decision of the State of Bombay was vitiated by their having done so. In reply to this amendment, an affidavit has been made by Mr. D.S. Joshi, the Secretary to the Government of Bombay in the Home Department, which categorically states that the report was not at all taken into consideration by Government, although by perusing the record now he has discovered that the report was in the papers that were submitted to Government.

8. On these averments the petition has been argued before me at some considerable length and the grounds of challenge to the various orders may be summarised for the convenience of dealing with them in some order. The order of the Regional Transport Authority is challenged on the following grounds:

(1) That the Regional Transport Authority as constituted at the time of hearing the petitioners' application was incompetent to deal with the applications because it was prejudiced against the petitioners in that it had previously intimated to the petitioners that their applications would not be granted.

(2) That Mr. Bhambri was disqualified from acting as a member of the Regional Transport Authority and taking part in the hearing of the applications and deciding them as he had previously expressed an opinion adverse to the petitioners.

(3) That there was no publication of the applications as required by Rule 51 of the Bombay Motor Vehicles Rules.

(4) That there was no hearing of the petition dated March 22, 1955, for the routes.

(5) That the letter dated July 8, 1947, by the Provincial Transport Officer was illegal, void and ineffective and yet the Regional Transport Authority gave effect to it.

(6) That the Regional Transport Authority understood that the policy of ultimate nationalisation was the policy underlying the letter of July 8, 1947, and acted on their interpretation of nationalisation as meaning municipalisation; and that their action is void in that a policy of nationalisation contravenes the fundamental rights guaranteed by the Constitution.

(7) That the Regional Transport Authority did not consider the matter on the merits; and

(8) That by its consistent conduct in giving every route in Greater Bombay to the B.E.S.T. Undertaking as and when it is in a position to run its buses on a route, the Regional Transport Authority has created a monopoly in favour of the B.E.S.T. Undertaking which is contrary to the fundamental rights guaranteed under the Constitution.

9. With regard to the order of the Appellate Committee of the State Transport Authority, the grounds on which it is challenged are mainly two : (i) that the Appellate Committee was not properly constituted as Mr. Chudasama was incompetent to act; and (ii) that the Appellate Committee took into account a report from Mr. Bhambri without disclosing the contents of that report to the petitioners. The order of the State of Bombay is, so far as I can gather from the petition, challenged only on the ground that it wrongly held that the Appellate Committee was properly constituted and that the State of Bombay had also seen the report of Mr. Bhambri and acted on it behind the back of the petitioners. I would now proceed to deal with these various grounds in the order in which I have attempted to summarise them.

10. The first plea that the Regional Transport Authority as constituted was incompetent to deal with the matter comes with ill grace from the petitioners who themselves were parties to the consent order that the Regional Transport Authority should proceed to determine their application for permanent permits. That consent order was taken with full knowledge of the fact that this very Regional Transport Authority had refused such permits in the past and had even expressed an opinion that only temporary permits could be granted until the B.E.S.T. Undertaking was in a position to take up particular routes in the Greater Bombay area. Those are the very facts that are urged in support of the plea that the Regional Transport, Authority was prejudiced against the petitioners and therefore was incompetent to deal with the matter. Having agreed in terms to take the decision of the Regional Transport Authority on their application for permanent permits with knowledge of these facts, I do not think it is open for the petitioners now to urge that the Regional Transport Authority was incompetent to deal with the matter. They cannot be allowed to take the chance of their applications being granted by the Regional Transport Authority, and, when they find that they have been refused in respect of two routes, to challenge the competence of the Regional Transport Authority to deal with the matter. It is also pertinent to point out that the petitioners have not surrendered the permit granted by the Regional Transport Authority in respect of one route which the Regional Transport Authority would have had no authority to grant if they were incompetent to deal with the matter. There is not even an offer to surrender it made in the petition. Moreover, assuming that the Regional Transport Authority was incompetent to deal with the matter, it is nowhere suggested-and Mr. Laud could not suggest at the Bar-who else was to deal with these petitions, because the only authority that can deal with the petitions under the provisions of the Bombay Motor Vehicles Act is the Regional Transport Authority. There is, therefore, no substance in this particular ground advanced on behalf of the petitioners. The petitioners' counsel, however, did not desire to give up or abandon that ground, but wished it to be dealt with by me although he advanced no arguments in support of it.

11. Turning next to the plea that Mr. Bhambri was disqualified from hearing the petitions, the material averments in this regard are to be found in para. 12 of the petition. To summarise them, it is alleged that in March 1955, there was a meeting with Mr. Bhambri and the partners of the petitioners and others, and in the course of conversation Mr. Bhambri observed that the private bus operators would be in existence for not more than two months, and therefore he failed to understand, why they were making complaints against the B.E.S.T. Undertaking; and the second ground against Mr. Bhambri is that, in an affidavit made by one Mr. Ramchand Mulchand Chawla, the General Manager of Bhathija Bus Service, Chembur Colony, it was alleged that in the very morning of April 27, 1955, Mr. Bhambri, in answer to an enquiry as to whether the meeting fixed on May 25, 1955, would be held, had replied:

Why do you bother about these things when the rejection of your application is a foregone conclusion? You cannot exist when B.E.S.T. has undertaken to operate its buses on all the routes in Greater Bombay. Do you think you will get the permits?

In answer to this paragraph in the petition, Mr. Bhambri, in his affidavit, para. 15, points out that, when an objection was taken before the Regional Transport Authority to his participating in the hearing of the petitions, the allegation made was that Mr. Bhambri had, in the morning of the day of the meeting, expressed the opinion attributed to him in the presence of Mr. Jaisinghani, who was the advocate for the petitioners. Mr. Bhambri denied this, whereupon the Chairman of the Regional Transport Authority asked Mr. Jaisinghani whether such a statement was made by Mr. Bhambri in his presence and Mr. Jaisinghani stated that he had no occasion to meet the Secretary of the Regional Transport Authority in the morning. On that the Chairman over-ruled the said objection. To his affidavit are annexed extracts from the minutes of the meeting of the Regional Transport Authority held on April 27, 1955, which completely corroborate this affidavit. Mr. Bhambri also denies in his affidavit that he had expressed any opinion as he is alleged to have expressed in March. I had intimated at an early stage in this writ petition that I would not ordinarily go into disputed questions of fact if any arose, and it is on the footing of dealing with disputed questions of fact on the basis of the affidavits only that I have proceeded to determine these matters. I am not prepared to accept the averment made in the petition that Mr. Bhambri did express any such opinion in March. On the other hand, I accept his denial. As to the exact nature of the objection taken before the Regional Transport Authority, the minutes of the meeting are, in my view, conclusive; and it is not denied that Mr. Jaisinghani, who has appeared with Mr. Laud in the petition before me, made the statement in reply to the Chairman that he was not present in the morning of April 27, although the allegation was that it was in Mr. Jaisinghani's presence that Mr. Bhambri had expressed this particular opinion. In my view, therefore, the objection that Mr. Bhambri was disqualified from acting as a member of the Regional Transport Authority was unsustainable and was rightly over-ruled.

12. I next come to the plea that there was no publication as required by Rule 51. Now, that rule inter alia provides that the Secretary, Regional Transport Authority, shall cause copies of the application or the substance thereof together with a notice of the date before which representations may be submitted and of the date of hearing to be posted on the notice-board 'at the office of the Collector of each district in the region concerned'. It is the petitioners' case that there are two Collectors in the region concerned, namely, Bombay and Thana, and by its advocate's letter the petitioners enquired from the Secretary of the Regional Transport Authority whether the petition had been so published. By his reply of April 25, 1955, Mr. Bhambri intimated that it had been duly posted on the notice-board at the office of the Collector of Bombay and did not state that it had been posted at the notice-board of the office of the Collector of Thana district. Then the question of non-publication was admittedly raised before the Regional Transport Authority on April 27, 1955, and there is a letter dated April 27, 1955, by Mr. Bhambri to the petitioners' advocate which says that the letter of April 25, 1955, should be read by amending the words 'Collector of Bombay' and substituting the words 'Collector of Bombay and the Collector of Thana District'. The petitioners' advocate, by his letter dated May 19, 1955, enquired as to how or in what manner these applications had been sent to the Collector of Thana by the Regional Transport Authority, for an enquiry from the Collector of Thana by the advocate had elicited the fact that, unless the Collector knew the number and date on which the applications had been forwarded to him for publication, he was unable to state whether such applications were sent to him or published. To this letter no reply was sent by Mr. Bhambri; and had the matters stood there, there would have been grave suspicion as to whether the application was in fact published so far as the office of the Collector of Thana District was concerned. But, fortunately for the respondents, the minutes of the meeting of April 27 before the Regional Transport Authority contain a full statement of what happened when this particular objection was raised before that Authority. The relevant portion of the minutes is:

Then the Secretary, R.T.A., pointed out that the applications had been put on the notice-board of the Collector of Thana District by his clerk. Shri Jaisinghani accepted this statement that in that case his objection may be treated as withdrawn. He, therefore, started arguments.

That this is a faithful record of what happened is corroborated, if corroboration were necessary, by the fact that, although non-publication as required by Rule 51 was one of the grounds of appeal to the State Transport Authority, the minutes of the proceedings of the State Transport Authority show that the point was not pressed before the State Transport Authority; and indeed, after the minutes of the Regional Transport Authority in this regard had been pointed out, Mr. Laud on behalf of the petitioners stated that he accepted them as correct and did not wish to press this particular ground any further.

13. I next come to the important ground of challenge, namely, that the petitioners had in fact no hearing in respect of their route application of March 22, 1955.

14. With regard to this contention, Mr. Bhambri, in his affidavit, para. 14, avers that the allegation that the petitioners' counsel made no submission before the Regional Transport Authority on April 27 in respect of their route application is false and he also points out that the falsity of this allegation is patent from the fact that a permit in respect of the Marol-Goregaon route was in fact granted to the petitioners consequent upon the hearing of April 27, 1955, He further says that, when the second application of the petitioners for the same routes was considered on May 25, the minutes of the proceedings before the Regional Transport Authority clearly show that Mr. Jaisinghani, who appeared on behalf of the petitioners, stated before the Regional Transport Authority that, as the decision of the Regional Transport Authority was already known in the matter and there was no other point to be placed before the Regional Transport Authority except those which had already been stressed by him before the Regional Transport Authority on April 27, the Regional Transport Authority may proceed to pass appropriate orders. This is borne out by the minutes of the meeting of the Regional Transport Authority on May 25, which have been reproduced in the said paragraph of the affidavit. We also have, in this connection, the affidavit of Mr. Gandevia, who is the Traffic Manager (Trams) of the B.E.S.T. Undertaking. He was personally present at the meetings before the Regional Transport Authority and he also avers that the petitioners' counsel did make submissions on April 27, 1955, with regard to the application for routes. It appears that the petitioners, in their grounds of appeal to the State Transport Authority against the decision of the Regional Transport Authority, raised as ground No. 10 the ground that they had been denied a hearing; but the minutes of the proceedings before the Appellate Committee of the State Transport Authority, which have been produced, do not show that this ground was argued. When we come to the second appeal to the State of Bombay, in the memo of appeal this ground has been dropped, which would also indicate that the ground of appeal to the State Transport Authority was not seriously taken and the facts really are as stated in the affidavits of Mr. Bhambri and Mr. Gandevia. Indeed, it cannot be that the petitioners were not heard as to the route application on April 27, because if they had not been, it is inconceivable that they could have been granted a permit for one of the routes, on May 11 consequent upon the hearing on April 27.

15. But even though the position, so far as facts are concerned, is as I have indicated it to be, I find it difficult to understand how the Regional Transport Authority came to hear the route application on April 27. In the first instance, it appears to me that the route application dated December 10, 1954, was not in. order in that it did not give the time-tables for the routes and such an application should not have been entertained, much less advertised, solemnly heard and disposed of even to the extent of granting a route permit for a route for which no time-tables had been supplied along with the application. Mr. Seervai on behalf of the respondents urges, in the first instance, that it was not essential that time-tables should be appended to the petition; and secondly, that even if the application was not in order because the time-tables had not been appended, there was no jurisdiction in the Secretary of the Regional Transport Authority not to entertain the petition and he was bound to advertise it in the manner provided and that the Regional Transport Authority was bound to proceed to decide it. I must consider both these submissions in the light of the relevant provisions of the Motor Vehicles Act and the Rules made thereunder. Section 46 of the Act sets out that an application for a stage carriage permit shall contain certain particulars. Sub-clause (c), which is one of such particulars, is 'the time-table, if any, of the service to be provided'. This would appear to indicate that it is not-in the case of every application for a stage carriage permit that there should be a time-table. But when one comes to the form prescribed in which the application for a permit must be made, being Form 'P St S A', para. 8 of that form states : 'Particulars of the time-table(s) proposed are appended.' It would prima facie appear as if by prescribing the form an attempt had been made to render compulsory what was optional under Section 46, Sub-clause (c); but if one looks at the matter a little more closely, that is not so. There are two kinds of stage carriage permits, for which an application can be made, and para. 4 of the prescribed form indicates what these may be. It states : 'The route, routes or area for which permit is desired.'' Therefore, there may be an area permit and there may be a route permit. In connection with an area permit, such as the one that was given to the B.E.S.T. in earlier years, i.e. in 1947 and 1945, a condition was attached to the permit under Section 48(d) of the Act that no new route could be started or old routes varied, suspended, cancelled or curtailed without the prior sanction of the Regional Transport Authority; with the result that, where an area permit is granted, at the stage at which it is proposed to start a new route, timetables would have to be submitted for the sanction of the Regional Transport Authority and they need not necessarily be submitted with the application for an area permit. But in the case of a route permit, I do not see how an application for a route permit can be complete without such time-tables. In this regard, I might draw attention to the provisions of Section 47, Sub-section (2), which enjoins upon the Regional Transport Authority and the State Transport Authority the obligation to refuse to grant a stage carriage permit if it appears from any time-table furnished that the provisions of the Act relating to the speed at which vehicles may be driven are likely to be contravened. It would be impossible for the Regional Transport Authority to carry out this obligatory duty if it was not obligatory on the person applying for a permit to furnish time-tables. In my opinion, therefore, although Section 46 indicates that a time-table may or may not be provided along with the application, upon a true construction, the time-table need not be there in the case of an area application, but a time-table is absolutely essential in the case of a route application : without it the application would not be in order. In my opinion, the application of the petitioners dated December 10, 1954, since it did not append the time-tables, was not in order.

16. But then Mr. Seervai says that, assuming that it was not in order, there was no power or authority in the Secretary of the Regional Transport Authority to refuse to entertain the application and that the Authority was bound to go through the procedure prescribed of publishing the application, inviting representations for or against it, hearing such representations and deciding the application. He has drawn my attention to Rule 51 of the Bombay Motor Vehicles Rules, which states that, upon receipt of an application for a stage carriage permit, the Secretary, Regional Transport Authority, shall publish the application in the manner provided in that rule and invite representations for or against the application. If the rule stood by itself, I would have no hesitation in holding that, when the rule talks of an application, it means a proper application; or, to translate it in phraseology which is used in another rule, the application must be in order. But Mr. Seervai says that such a construction should be excluded by reason of the fact that in Rule 49, which relates to applications for a contract carriage permit, the rule specifically empowers the Secretary only if the application is in order to circulate it, and were it desired that his right in respect of an application for a stage carriage permit should also be the same, the Government of Bombay, whilst making the rules, would have used the same phraseology in Rule 51, The argument is a legitimate one; but it cannot be given effect to for the simple reason that such a construction of Rule 51 would lead to situations which are completely absurd. In the first place, a form of application having been statutorily prescribed, it is obvious that, if anyone chose to disregard the form and addressed, let us say, a letter asking for a permit, this would be a sufficient application within Rule 51, because, according to Mr. Seervai, nobody would have the power to say that the application was not in order. Secondly, there are at least some clauses in the form prescribed which, if not filled in, must necessarily render the application ineffective. For example, Sub-clause 4 of the prescribed form requires the route, routes or area for which permit is desired, and where this particular sub-clause is not filled in, there certainly would be no application which could, for any useful purpose, be accepted, advertised and solemnly dealt with under the rules. There is also required in Sub-clause 14 of the form particulars of the vehicles available for use under the permit applied for, and surely, in the absence of such particulars, the Regional Transport Authority could not possibly deal with any application. Therefore, I have no doubt in my mind that the proper construction to be put upon Rule 51 of the Bombay Motor Vehicles Rules is that the application therein referred to, upon the receipt of which the Secretary is to proceed to publish it in the manner provided, is an application which is in order and that there is an obligation on the Secretary to entertain an application which is in order or to proceed to publish it in the manner provided, and consequently an obligation on the Regional Transport Authority to proceed to determine what is not a proper application. In my opinion, therefore, there was not a proper route application made by the petitioners which could have been heard or disposed of on April 27, 1955.

17. There is yet another consideration, although of a somewhat different character, which must also lead to the same conclusion. The presentation and acceptance by the Regional Transport Authority of a second application from the petitioners on March 22, 1955, appears to me necessarily to involve the abandonment by the petitioners of their first application, assuming it was a valid application; for surely, there cannot be by the same applicant two separate applications for the same routes at two different dates. In my opinion, therefore, the only legitimate order that could have been made on the first application, assuming it had to be formally disposed of, would either have been to adjourn it from April 27 to May 25, 1955, on which date the second application was due for hearing, and to hear it with that application, or to dispose of it by indicating that no order was being made on it having regard to the subsequent application presented by the petitioners. Neither of such courses was adopted; but it is claimed that the Regional Transport Authority actually disposed of the route application as a result of the hearing on April 27, which I have no doubt on the facts they did by their order of May 11. But what they did may well have landed them into a somewhat impossible situation if facts had turned out otherwise than what they have actually turned out to be. By the notification in the Gazette dated April 14, 1955, in which the second route application was published, objections had been invited from 'any one' till April 30, 1955, and if any one had made any representation in respect of the route permits subsequent to April 27, 1955, how and when were these representations to be heard and disposed of? Indeed, as a result of the hearing of April 27, a route permit had been granted to the petitioners for the Marol-Goregaon route. Supposing, for example, that a valid representation had been received opposing the grant of a permit for this route, what was to happen to the permit already granted? There is in the Act Section 60 which confers a power to cancel a permit granted; but that power can only be exercised on the grounds enumerated in that section, and I am not aware of any provision in the Motor Vehicles Act which, in such a contingency, would have enabled the Regional Transport Authority to cancel the permit already granted on May 11, except perhaps that the party aggrieved may have filed an appeal to the State Transport Authority and obviously got the order of the Regional Transport Authority set aside on the simple ground that the Regional Transport Authority had no right or authority to dispose of the application before the period fixed for making representations had elapsed. But Mr. Seervai says that, although the notification in the Gazette of April 14 invites representations from 'any one', in law any one is not entitled to make a representation, but only certain persons are so entitled, and since a representation had already been made by the B.E.S.T. opposing the grant of the route permit to the petitioners, the possibility of a valid representation by any other person or body did not survive. Now, no doubt Section 47 of the Motor Vehicles Act, which lays down that the Regional Transport Authority shall, in deciding whether to grant or to refuse a stage carriage permit, have regard to the matters enumerated therein, proceeds to observe:

and shall also take into consideration any representations made by persons already providing road transport facilities along or near the proposed route or routes or by any local authority or police authority within whose jurisdiction any part of the proposed route or routes lies or by any association interested in the provision of road transport facilities.

When one turns to the right of appeal conferred by Section 64 against an order of the Regional Transport Authority granting or refusing a permit, that right inter alia is conferred by Sub-clause (f) on

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.

Reading the two sections together, it does appear that Mr. Seervai is right that the right of making representations had been restricted to the persons and bodies enumerated in Section 47 and that it is not the right of every individual or body of persons to make such representation. If so, it is pertinent to point out that the notification in this regard, which appears to be customary, is not in proper form because it mentions 'representations for or against the above applications that any one may wish to make' and it must be in the form that the Regional Transport Authority invites representations from the parties who alone under Section 47 are entitled to make such representations. Therefore, the possibility of 'any one' making a representation which the Regional Transport Authority was bound to take into account did not survive; but nonetheless, although the B.E.S.T., which was one of the parties who provided road transport facilities along or near the proposed route or routes, was already before the Regional Transport Authority, there may have been any local authority or police authority or association interested in the provision of road transport who were entitled to make a representation for or against the granting of the permit and who had a right to be heard. Mr. Seervai quite frankly conceded that, if such a representation had been received, the Regional Transport Authority may have found itself in a difficult situation, having already taken a decision to grant a permit on the Marol-Goregaon route to the petitioners before the date fixed for receipt of such representations. Therefore, I have no doubt that the Regional Transport Authority acted with great irregularity in hearing the first application of the petitioners on April 27, and passing orders on it on May 11 when the substantive second application for the same route was pending and remained undisposed of. But does this irregularity necessarily vitiate the order that was made by the Regional Transport Authority? On the facts established, on May 25, when the Regional Transport Authority proceeded to hear in all solemnity applications in respect of the routes which they had considered and disposed of on an earlier occasion, they did give an opportunity to Mr. Jaisinghani to add whatever he wished to, to what he had already urged on April 27; and the minutes of the proceedings of that day show that, although Mr. Jaisinghani had nothing to add in respect of the application of the petitioners, he did have something to add in respect of the application of another party which was also considered under similar circumstances on April 27 and again on May 25, with the result that in point of fact the petitioners have had a hearing. Substantially, therefore, I am inclined to hold that, notwithstanding the irregularity, the Regional Transport Authority did in effect reconsider its own decision of May 11, with regard to the routes and confirmed, it. In my opinion, the irregularity as to the hearing has not resulted in any injustice to the petitioners and does not amount to an illegality that would vitiate the order.

18. I next come to the ground that the circular letter issued by the Provincial Transport Officer on July 8, 1947, was illegal, void and ineffective and the Regional Transport Authority gave effect to it. I do not think it is necessary to consider at any length the submission that the circular is illegal, void and ineffective. It is apparent from the circular that it purports to be a ban on the issue and renewal of regular permits by the transport authorities who have been clothed with statutory authority under the Motor Vehicles Act to grant or refuse a permit. It does constitute a fetter on the discretion of the Regional Transport Authority which the Provincial Transport Officer or the State Government had no right to impose; and I have no doubt in my mind that the circular was illegal, void and ineffective. It appears that the State Transport Authority, on appeal, held that this circular was ineffective because it had not been duly promulgated; and the State Transport Authority looked upon it as a possible exercise of powers by the State of Bombay under Section 58, Sub-section (3), of the Motor Vehicles Act. Now, that sub-section states that, although a permanent permit under the provisions of Sub-section (1) must be for not less than three years and not more than five years, the State Government may order a Regional Transport Authority or State Transport Authority to limit the period to any period less than the minimum. Now surely, the circular does not purport to do anything of the kind. It bans the issue of permanent permits and requires the grant of temporary permits only; and it was not competent to the State of Bombay to do so whether the order was properly promulgated or not. The circular being void, if the Regional Transport Authority acted on it, obviously they acted contrary to law and their decision is liable to be set aside. There is no doubt whatever on the face of the order made by the Regional Transport Authority that they did act on this circular because, although they were dealing with applications for permanent permits, both by the B.E.S.T. and by the petitioners, and they granted to the B.E.S.T. an area permit and to the petitioners a permit for one route, the period was restricted to four months contrary to the provisions of Section 58, Sub-section (1), which requires that the period of a permanent permit shall be a minimum of three years. In other words, they proceeded to give temporary permits as required by the circular, although in form they granted the application for permanent permits. Of course, in this context it is material to note that on this occasion for the first time the Regional Transport Authority treated both the B.E.S.T. and the petitioners alike in this matter and the permit granted to the B.E.S.T. was also for a period of four months like the one granted for one route to the petitioners, unlike in 1947 and 1950, when the permits granted to the B.E.S.T. were for three years and five years, whilst the permits granted throughout this period to the petitioners were for four months at a time, notwithstanding the fact that the circular was considered by the Regional Transport Authority to be binding upon them. The favoured treatment that was obviously shown by the Regional Transport Authority to the B.E.S.T. was discontinued on this occasion. But quite apart from the favoured treatment, the very fact that the circular was taken into account and given effect to would, in my opinion, render the order liable to be set aside in appeal, unless of course it was capable of being upheld even on the footing of the circular not being effective. I will return to this matter when I deal with what happened before the State Transport Authority on appeal.

19. I next come to the plea that the policy of nationalisation underlying the circular, as the Regional Transport Authority understood it to be, contravened the fundamental rights guaranteed by the Constitution under Article 19(1)(g) to carry on any occupation, trade or business, and that the order is bad because the Regional Transport Authority purported to give effect to the policy of nationalisation. Now it is clear, in the first instance, from the letter of October 9, 1950, written by the Secretary of the Regional Transport Authority that that body considered that the policy of nationalisation made it essential that permits to parties other than the B.E.S.T. Undertaking should be on a temporary basis as directed by the circular of the Provincial Transport Officer. This was emphasized by the Secretary of the Regional Transport Authority in two further letters of November 11, 1954, and December 8, 1954, to which I have already drawn attention. Now the letter of December 8, 1954, was in terms withdrawn, when a consent order was taken in the petition which was presented to this Court, by a letter dated January 15, 1955. One would have thought that a withdrawal of this letter implied on the part of the Regional Transport Authority a withdrawal of the attitude indicated in that letter, namely, that since the B.E.S.T. Undertaking was now in a position to undertake the routes for which the petitioners had temporary permits, they would no longer get permits for those routes; but, curiously enough, in answer to an allegation made in the petition that the Regional Transport Authority had withdrawn the letter of November 11, 1954, Mr. Bhambri, the Secretary of the Regional Transport Authority, in his affidavit denies that this letter is withdrawn. Mr. Seervai on behalf of the respondents has contended that this denial is factual only and that in terms the letter of December 8, 1954, only was withdrawn by the letter of January 15, 1955. But I must confess that I fail to see what a factual denial in this context means. A letter does not necessarily require to be withdrawn expressly : it may be withdrawn impliedly as well; and it is not contended by Mr. Seervai-and it cannot be-that the effect of the withdrawal of the letter of December 8, 1954, which in terms had reiterated the contents of the letter of November 11, 1954, was an implied withdrawal of the letter of November 11, 1954. Therefore, a denial of the fact that the letter of November 11, 1954, was withdrawn is not only inaccurate in fact, but, in my opinion, displays a state of mind in the Secretary of the Regional Transport Authority that he considers himself free, notwithstanding the retraction of the letter of December 8, 1954, to give effect to what was stated in the letter of November 11, 1954. In other words, relying on the conception of the Regional Transport Authority that the policy of nationalisation was underlying the circular of Government and that, therefore, permits for all routes in Greater Bombay must be granted ultimately to the B.E.S.T. when they are in a position to run them, as in the opinion of the Regional Transport Authority doing so would amount to nationalisation, no permits for a greater period than four months were to be granted to any one else pending the grant ultimately of permanent permits to the B.E.S.T. Now there can be no doubt-and the matter does not require much elaboration-that an attempt to bring about nationalisation by executive fiat or administrative action is contrary to the Constitution. It is also clear that it is a consideration which is foreign to the matters which the Regional Transport Authority is enjoined to take into account in granting or refusing a permit under Section 47 of the Motor Vehicles Act. If authority were needed for this proposition, it is to be found in an elaborate judgment of the Allahabad High Court in Moti Lal v. The Government of the State of Uttar Pradesh [1951] 1 All. 269. Therefore, if the Regional Transport Authority acted on any notion that nationalisation was to be brought about, it acted on a consideration which they were not at liberty to take into account under Section 47 of the Motor Vehicles Act and a consideration which contravened the provisions of the Constitution. But apart form the suspicion that may arise of their having so done by reason of the somewhat curious attitude taken up by Mr. Bhambri in his affidavit regarding the withdrawal of the letter, there is no evidence that they so acted. It is quite conceivable that this was at the back of the mind of the Regional Transport Authority when it decided the applications; and it may be that they looked at all the evidence with this background and therefore their judgment was influenced by such a background. This would, in the ease of an appeal to the State Transport Authority, entitle the State Transport Authority to look into the merits of the matter themselves and to come to a fresh conclusion if the State Transport Authority considered that the judgment of the Regional Transport Authority had been affected by extraneous considerations; and, as I will point out later, the State Transport Authority did in fact exclude from consideration both the circular and any question of nationalisation. It is also relevant to point out that the B.E.S.T. Undertaking, in arguing its case before the Regional Transport Authority, as appears from the minutes which are copious, did not make the remotest reference to any privilege that they claimed by virtue of so-called nationalisation or municipalisation; but both in their representation and in the arguments advanced on their behalf they put their claim entirely on the footing that they were better qualified to run the routes from the point of view of the travelling public than any other competitor.

20. A somewhat subsidiary point that was urged in this context by Mr. Laud may also be noticed at this stage. As I have stated earlier, Section 47 enumerates the matters which a Regional Transport Authority or a State Transport Authority has to take into account in deciding whether to grant or to refuse a stage carriage permit. Mr. Laud draws my attention to a statement in Mr. Bhambri's affidavit in para. 5 where Mr. Bhambri states that the Regional Transport Authority fully considered all factors 'including the matters set out in Section 47 of the Motor Vehicles Act'; and the contention urged by Mr. Laud is that this averment show that they took into account matters other than those enumerated in Section 47 and to the extent to which they did so their order is liable to be set aside. In the first place, this is an attempt to put too literal a construction on this affidavit; and in the absence of any averment that any other considerations-apart, of course, from the circular and nationalisation, with which I have specifically dealt-were taken into account by the Regional Transport Auhority, it seems to me difficult to hold that the order is vitiated because some other consideration may have been taken into account. Mr. Laud has drawn my attention to certain passages in the judgments of their Lordships of the Allahabad High Court in Moti Lal v. The Government of the State of Uttar Pradesh, and particularly to a passage in the judgment of Mr. Justice Sapru at page 365, where the learned Judge in terms states:.The only matters which it (the R.T.O.) could take into account were the matters specified in Section 43(1)(a) to (f) of the Motor Vehicles Act....

I must read this observation in the context of what the learned Judges were called upon to decide. They were dealing with the question of the policy of nationalisation having been taken into account by the Regional Transport Authority, and, with respect, they rightly took the view that such a policy was foreign to the provisions of Section 47 and could not be legitimately taken into account. But I do not read the observations of Mr. Justice Sapru as meaning that the Regional Transport Authority or the State Transport Authority is not to take into account any consideration, howsoever relevant in the context of the Motor Vehicles Act, in the granting or refusing of the permits, if it is not specifically set out in Section 47. To take only an obvious case, if the applicant for a permit was a minor or a lunatic, I conceive that the Regional Transport Authority would have a right to refuse a permit to him, although this may not be one of the matters that fall within any of the heads (a) to (f), for it is a ground which is manifestly relevant in the context of the Act and of the power to grant or refuse a permit. One can also conceive of other equally cogent grounds which are manifestly relevant and which may not be classified under any of the sub-heads in Section 47. Therefore, it is not, in my opinion, strictly accurate to say that no other consideration can be taken into account. What is meant is that any consideration that is foreign to the objects and the scheme of the Act and has no relevance to the granting or refusing of a permit in the context of the scheme of the Act must not be taken, into account. Where, therefore, it is alleged-as Mr. Laud alleges-that some other consideration may have been taken into account (not that it was), no result can follow until one knows what such consideration was and whether it was manifestly relevant in the context of the Act or foreign to the purposes of the Act.

21. This brings me to the next ground urged on behalf of the petitioners that the Regional Transport Authority did not consider the matter on the merits. Now, it appears, in the first instance, from the minutes of the meeting before the Regional Transport Authority that the decision of their Lordships of the Supreme Court in Saghir Ahmad v. The State of U.P. : [1955]1SCR707 was cited before the Authority both by Mr. Jaisinghani and by Mr. Seervai; and the whole of the argument before the Regional Transport Authority appears to have proceeded on the footing that from amongst the applicants for routes the Regional Transport Authority had to choose, in open competition and on the merits, the one better qualified in its opinion from the point of view of the interests of the travelling public to run the routes. An elaborate representation had been made on behalf of the B.E.S.T.; and the petitioners in their turn had also submitted a representation against the granting of the permit to the B.E.S.T., in which they had detailed all the facts which they considered relevant for establishing that they were equally qualified, if not better qualified than the B.E.S.T., to run the routes. Furthermore, there does not appear to have been any argument based on any claim made by the B.E.S.T. of any kind of privilege; and when one turns to the actual order made on May 11, 1955, the reasons that are set out in that order for granting the permit to the B.E.S.T. Undertaking, as against the Andheri-Marol-Kurla Bus Service, appear all to be reasons which are within the scope of Section 47 of the Motor Vehicles Act and which are wholly and entirely relevant. It is not necessary to set them out at length; but upon a perusal of that order it is impossible to come to the conclusion that the Regional Transport Authority did not consider the matter on the merits, although it is quite conceivable that they may have had at the back of their mind either the policy of nationalisation, or their own interpretation of such a policy that the B.E.S.T. Undertaking should get all the routes, or the circular of Government. There is, therefore, no substance in the plea that the matter was not considered by the Regional Transport Authority on its merits.

22. Lastly, I come to the contention that the effect of the order of the Regional Transport Authority in granting the permit to the B.E.S.T. is to create a monopoly which, it is said, is opposed to the constitutional right conferred by Article 19(1)(g) of the Constitution on all citizens to practise any profession or to carry on any occupation, trade or business. Now, the word 'monopoly' has been used in different contexts and with slightly varying meanings at different periods of time. The more obnoxious form of a monopoly is the conferment of a benefit on an individual or a body of individuals out of favouritism or as a reward for services rendered and without any heed to the interest of the public. But where any law provides for the obtaining of a licence for carrying on of a trade or business, the grant of a licence to one and the refusal of a licence to another brings about a situation which may perhaps be described as a partial monopoly, but which may not necessarily have the obnoxious features of a monopoly. In Saghir Ahmad's case, Mr. Justice Mukherjea, who delivered the judgment of the Court, quoted with approval (at page 725) a passage from Lord Porter's judgment in the Privy Council case of Commonwealth of Australia, v. Bank of New South Wales [1950] A.C. 235, which is to the following effect (p. 311):.their Lordships do not intend to lay it down that in no circumstances could the exclusion of competition so as to create a monopoly either in a State or Commonwealth agency or in some other body be justified. Every case must be judged on its own facts and in its own setting of time and circumstance, and it may be that in regard to some economic activities and at some stage of social development it might be maintained that prohibition with a view to State monopoly was the only practical and reasonable manner of regulation,...

Therefore, by merely describing a particular act as a monopoly one does not establish necessarily that it is opposed to the fundamental rights guaranteed by Article 19(1)(g) of the Constitution. One has to look at all the facts and surrounding circumstances and to find out whether what is sought to be done contravenes the provisions of the article. Now, in the first instance, it is not Mr. Laud's case-and cannot be-that the granting of a permit to run a transport service under the Motor Vehicles Act in itself constitutes a monopoly which contravenes the fundamental right guaranteed under Article 19(1)(g) of the Constitution, for if it were, the Marol-Goregaon route, for which a permit has been granted to his clients, is also a monopoly and will, therefore, contravene the provisions of Section 19(1)(g) of the Constitution. The Motor Vehicles Act does not empower the Regional Transport Authority to grant a permit to whomsoever they please. The permit is to be granted by open competition between persons who desire to run transport services on considerations which have been set out with great care in the Act itself; and if one person gets a permit in opposition to another or others, he does so because he is best qualified to fulfil the objects of the Act in providing an efficient transport service in the interests of the travelling public. That, I conceive, is not opposed to the fundamental right guaranteed under the Constitution by Article 19(1)(g). But then Mr. Laud says that, whilst this may be so in respect of a single route only, if the Regional Transport Authority issues the permit for every single route in Greater Bombay to only one body, namely, the B.E.S.T. Undertaking, it is creating a monopoly in that Undertaking for all the routes throughout that area. I am afraid I do not see the force of this submission because, if the granting of the permit for one route in open competition is not what I might term an obnoxious monopoly in the sense that it does not contravene the fundamental rights, why is the granting of many such permits, again in open competition, to the same body any the more a monopoly? Were it a fact that the permits were given to the B.E.S.T. Undertaking, not because they are the best equipped to run transport services more efficiently than any one else, but because they are a municipal body, it may be conceivably said that there was an attempt to create a monopoly. But that is not the ease on the proved facts. In every case in which a permit has been given to them, it has been in open competition : except this, that it is unfortunate that they received a somewhat favoured treatment between the period 1947 to 1954 by reason of the mistaken notion of the Regional Transport Authority that the B.E.S.T. Undertaking was bound to get all the routes ultimately in consequence of the policy of nationalisation. In my opinion, therefore, by the granting of the route permit to the B.E.S.T. and excluding the petitioners from the two routes for which they had applied, no monopoly is created which contravenes any of the fundamental rights guaranteed by the Constitution.

23. That really concludes the grounds on which the Regional Transport Authority's order is challenged. But since the order has now merged in the order in appeal of the State Transport Authority it is necessary to consider the order of the State Transport Authority, and the grounds on which it is challenged and the grounds of challenge against the order of the Regional Transport Authority will only survive in so far as they have resulted in an inherent vice in the order which could not be cured by anything that has been done on appeal.

24. In so far as the order of the State Transport Authority is concerned, the first ground of objection is as to the constitution of the Appellate Committee. Now in this connection, Mr. Seervai concedes that at the relevant time there were seven members of the Appellate Committee of the State Transport Authority appointed by the Chairman, and the appeal was in fact heard by five of them. One of such members was Mr. Chudasama, who was by that time Inspector General of Police and became a member of the Appellate Committee apparently by virtue of his office. He was a member of the Regional Transport Authority in his capacity as Commissioner of Police at the time when the petitioners' applications were disposed of. The advocate for the petitioners addressed a letter on July 15, 1955, to the Secretary of the State Transport Authority drawing his attention to the fact that Mr. Chudasama was the Chairman of the Regional Transport Authority against whose order an appeal had been preferred and that, therefore, the constitution of the Appellate Committee of the State Transport Authority for hearing the appeals was not proper, and requesting reconstitution of the Committee at an early date. By another letter of July 21, 1955, the advocate for the petitioners pointed out that the mere absence of Mr. Chudasama at the meeting of the Appellate Committee would not render the rest of the Appellate Committee competent to hear the appeals -and gave intimation that this point would be raised at the hearing. In their appeal to the State of Bombay the petitioners made it a ground of appeal that it was against the principles of natural justice that Mr. Chudasama, who was a member of the Regional Transport Authority against whose decision an appeal had been filed, should also be a member of the Appellate Committee of the State Transport Authority. This objection was at all stages considered by the authorities to be an objection to Mr. Chudasama's taking part in the disposal of the appeal and it was thought that the objection was sufficiently met by Mr. Chudasama abstaining from attending the hearing of the appeal and taking any part in it. There was, therefore, no violation of any principles of natural justice. But the point that has now been made is that without Mr. Chudasama the Appellate Committee was not competent to act. I had occasion in my judgment in Gopichand Lillaram Bathija v. The Regional Transport Authority (1956) O.C.J. Miscellaneous Petition No. 298 of 1956 to deal with such a contention, and in my judgment delivered on December 6, 1956, this is what I have stated:.Now, the rule relating to appeals against orders of a Regional Transport Authority is Rule 76 of the Bombay Motor Vehicles Rules, 1940, and the relevant part of the rule is:

The authority to decide an appeal against the orders of a Regional Transport Authority...shall be a Committee of such number of members of the State Transport Authority not being less than two as may be appointed by the Chairman.

Therefore it is clear that the appeal is to be heard and disposed of by a Committee that is to be appointed by the Chairman. The Committee may consist of not less than two members of the State Transport Authority. Under the Rule it is competent to the Chairman from time to time to appoint a Committee to hear appeals which need not be a permanent body, but which may vary from time to time both as to personnel as Well as to numbers in the same manner as Benches of a High Court are constituted differently from time to time; but the body that can exercise appellate functions is of necessity the body which is appointed as a Committee by the Chairman. As a pure matter of fact the only Committee appointed by the Chairman at the relevant time is a Committee of seven. It would have been competent to him to appoint any two or more of them as a Committee to hear appeals in this particular matter or in any group of matters; but no such appointment was made and in the absence of an appointment, it appears to me that if the appeal was heard not by the whole Committee which was then in existence but by any lesser number, the lesser number were not entitled to hear such appeal. But this appears to me to be a case not so much of absence of jurisdiction as of an irregular exercise of it. The irregular exercise could have been prevented if only the petitioner had at any time raised a plea before the Appellate Committee that they were proceeding to decide the matter without the full Committee being present, and since he did not do so, he cannot be heard on this petition to raise the plea that the decision of the Appellate Committee is bad because only some of the members of the Appellate Committee determined his appeal.

The position is precisely the same in this petition. Not only was Mr. Chudasama who was a member of the Committee of seven absent, but there was another member also absent; and, as I have already held, the rest of the five were not entitled to hear such an appeal in the absence of an order by the Chairman appointing them to be a Committee for hearing such an appeal. But, as I have already held, this is a mere ease of an irregular exercise of jurisdiction. Had the petitioners' counsel specifically drawn attention to the fact that what is challenged was the right of the five members out of seven to hear the appeal, the matter was obviously capable of being set right by the Chairman passing an appropriate order. But nobody appears to have taken this view of the matter at that stage; and the only objection that was taken was that Mr. Chudasama was incompetent to act on grounds of natural justice. That, in my opinion, was sufficiently met by Mr. Chudasama not taking any part in the proceedings and the objection has no substance.

25. I next come to the objection of a far more serious character, and that is that the Appellate Committee of the State Transport Authority asked for a report from the Secretary of the Regional Transport Authority on the memorandum of appeal that was presented to the State Transport Authority and acted on that report, which was never shown to the petitioners. On a pure question of fact, Mr. Dayal, the Chairman of the Appellate Committee, in his affidavit states:

On an appeal filed by a party against the decision of the Regional Transport Authority, the Regional Transport Authority does not appear at the hearing. It has therefore been the practice of the Board to ask for a report from the Regional Transport Authority as on several occasions statements of what transpired before the Regional Transport Authority are made before the Appellate Committee of the State Transport Authority. It has been the invariable practice of the Board that if it desires to rely upon any statement or anything contained hi the said Report against the appellant, to give him an opportunity of meeting the substance of what is contained in such a report. I submit that the Appellate Committee of the State Transport Authority is entitled to obtain relevant information from the Regional Transport Authority. The Appellate Committee of the State Transport Authority has acknowledged and acted upon its obligation to disclose any matter in the report prejudicial to an Appellant in so far as the Authority was going to act on or rely upon such matter prejudicial to the app1lellant, and to give the Appellant an opportunity of meeting the matter prejudicial to him. I say that in hearing the case of the Petitioners that practice was adhered to.... The Appellate Committee of the State Transport Authority did not consider or rely on or in any way base its decision on anything contained in the report in arriving at its decision rejecting the appeal of the Petitioners.

This affidavit, whilst admitting that a report was called for and seeking to justify calling for the report, apparently is so drafted as to bring the case within certain observations of Viscount Haldane in Local Government Board v. Arlidge [1915] A.C. 120 of the report, Viscount Haldane, L.C., points out that the procedure of every tribunal which is discharging appellate functions need not necessarily be assimilated to the procedure of a Court of law when the tribunal is administrative, although it may be exercising quasi-judicial functions; and Viscount Haldane proceeds to express agreement with the views expressed by Lord Loreburn in Board of Education v. Rice [1911] A.C. 179, when Lord Lore-burn held that the appellate authority could obtain information in any way it thought best,

always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view.

I respectfully agree with Viscount Haldane that such is the true position regarding the procedure to be adopted by an administrative body clothed with quasi-judicial functions of hearing an appeal. But it still remains to consider in the present case whether the report of the nature called for and submitted is a report that is competent for the Appellate Committee to call for. Now, the whole report has been produced in Court, but a few earlier pages of it which dealt with the history of the matter and stated the circumstances under which the consent order was obtained in previous proceedings, under advice obtained by the Regional Transport Authority were not made available to the petitioners on the ground that advice tendered by any party's legal advisers is privileged. But nonetheless it is clear that the excluded part of the report told the Appellate Committee why the consent order had been arrived at and the background of the dispute. It is quite obvious that the Appellate Committee had no right to know these facts and had no concern with them; and Mr. Seervai concedes that this part of the report, which Mr. Dayal says is in conformity with the normal practice, is entirely and wholly unjustified.

26. Turning nest to the part of the report that has been exhibited in these proceedings, the report after summarising the applications, proceeds to state : 'My remarks and comments on the points raised in the memo of appeal are as under.' Now, when one turns to the memorandum of appeal to the State Transport Authority, which has been put in as exh. 2, it first purports to set out facts seriatim in paras. 1 to 8 and then sets out the grounds, again seriatim, from 1 to 16. The report proceeds to deal with all the facts set out in the memorandum seriatim and finally it proceeds to deal with all the grounds set out in the memorandum, also seriatim. In other words, this so-called report may well have been a judgment disposing of the appeal, and the practice that Mr. Dayal admits prevails is, in my opinion, tantamount to the Appellate Committee resorting to the most objectionable and obnoxious course of getting the Secretary of the Regional Transport Authority to prepare a minute for writing their own judgment in appeal. It is wholly and entirely indefensible, and, in so far as the report deals with facts which are the subject-matter of the controversy and must be determined having regard to the record in the case as well as the grounds of appeal, there has been no attempt to justify the obtaining of such a report. There may be some justification if a question arose as to what happened before the Regional Transport Authority and it was relevant to find out what happened. The Appellate Committee may well call for a report as to what happened in the same manner as an appellate Court sometimes calls for a report from a subordinate Court. But such a report, when obtained, must of necessity be made available to all the parties concerned and not looked at or used by the appellate body without their knowledge and behind their back. In theory it may be all right to hold, as Viscount Haldane points out, that it is sufficient if an opportunity is given 'to those who are parties in the controversy to correct or contradict any relevant statement prejudicial to their view;' but in practice, it is far more satisfactory that, if any report is obtained at all, it should be made available to all the parties concerned, for to determine what particular fact or facts may prejudice a party may involve fine decisions as to the ultimate result of the appeal and may often prejudice the party concerned. I have, therefore, no hesitation in condemning as entirely unwarranted and obnoxious the practice that prevails, according to the affidavit of Mr. Dayal, of obtaining a report from the Secretary of the Regional Transport Authority, and the sooner it is discontinued the better. If it is not, the Court would be entitled to set aside the decision of the Appellate Committee on the ground that they had taken into account a report obtained behind the back of the party in arriving at their decision. The only report they can ever call for or look at is a report as to any disputed fact in regard to what happened before the Regional Transport Authority; and since it must relate to disputed facts, of necessity what the report contains is a matter which ought to be communicated to the parties concerned. The inherent vice of the procedure of getting such a report may well be illustrated by what happened in this particular case. One of the grounds of appeal was that there was no publication as required by Rule 51. The report states all the facts relating to the alleged publication by the Regional Transport Authority and had the ground been pressed the Appellate Committee would have disposed of it in the light of what is stated in the report; but the report was not made available to them on this matter relevant to the determination of the issue. This is, of course, on the footing that there was any justification for obtaining such a report with regard to the ground of non-publication. There is also the ground relating to a denial of hearing on April 27 and on May 25 with regard to the application for route permits. Here again, the facts are fully set out in the report of course as they appeared to the Secretary of the Regional Transport Authority, These instances only enable to illustrate the inherent vice in seeking to obtain relevant information from the Regional Transport Authority which, Mr. Dayal claims in his affidavit, the Appellate Committee is entitled to obtain. I must, in clear and unambiguous language, state that the Appellate Committee has no such right and it is not entitled to obtain relevant information from the Regional Transport Authority in respect of facts which are the subject-matter of the record. It can only do so in respect of any matters which are in dispute as to what took place before the Regional Transport Authority and no more. I would have been disposed to set aside the order of the State Transport Authority on the ground that they had received this report behind the back of the petitioners and since the report is indeed a much fuller judgment than the State Transport Authority in appear gave, it may well have influenced their judgment. But, fortunately, in this case there has been a further appeal to the State of Bombay and the State of Bombay has, as I shall presently point out, dealt with the matter without looking at the report. I may only mention that the Appellate Committee modified the orders of the Regional Transport Authority to the extent that the permits granted both to the B.E.S.T. and to the petitioners in case of the route from Marol to Goregaon were extended from four months to three years, the Appellate Committee holding that the circular letter was inoperative and should not be given effect to.

27. Coming next to the decision in second appeal of the State of Bombay, almost the only ground on which it has been challenged is that there was, in the papers sent up to Government for the disposal of this appeal, this particular report and the report was taken into account by the State of Bombay in arriving at a decision of the appeal behind the back of the petitioners. This plea was raised by an amendment of the petition, in answer to which Mr. D.S. Joshi, Secretary to the Government, Home Department, Bombay, has made an affidavit, in which he clearly and unambiguously denies that Government had taken into consideration this report. He states that he was unaware of the existence of such a report and that it is only by looking at the papers now that he has found that such a report, was in the papers. I accept the statement made by such a high and responsible officer of the State of Bombay, and therefore I hold that Government was in no manner prejudiced by this report against the petitioners. It cannot be that the mere existence of the report amongst the papers that were submitted to Government, without the report being read, can influence the decision of Government in any manner. Moreover, it is pertinent to point out that the judgment given by the State of Bombay in second appeal is a very elaborate judgment, which deals at length with every single ground that was raised for challenging the decision of the Regional Transport Authority and of the State Transport Authority. In so far as the ground that the Regional Transport Authority had given effect to the circular of July 8, 1947, and the policy of nationalisation was concerned, the judgment points out that the State Transport Authority had rightly held that the circular was inoperative and the matter ought to be considered on its merits. The judgment also points out that the matter was in fact considered on the merits both by the Regional Transport Authority and the Appellate Committee and that Government finds itself in agreement with the conclusions arrived at on the merits that the permit for the whole of Greater Bombay area should be granted to the B.E.S.T. Undertaking and only the permit for one route should be granted to the petitioners. The judgment that really can be challenged to-day is only the judgment of the State of Bombay in final appeal; and whatever may have been the irregularities committed before the Regional Transport Authority or the irrelevant considerations taken into account by that body or by the State Transport Authority, the Government, applying its mind to the entire record and ignoring every irrelevant consideration, has upheld the order of the Appellate Committee of the State Transport Authority. In my opinion, therefore, the petitioners have failed to make out any case for this Court's interference. The order finally made is a good and valid order.

28. The petition must, therefore, fail and is dismissed. As regards costs, although the petitioners have failed in the petition, there have been disclosed in this petition a number of irregularities for which the respondents must be held to be responsible. In the light of these irregularities, I direct that the petitioners shall pay only three-fourths of the costs of the respondents. Costs to be taxed.


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