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M. Basha and anr. Vs. C. Sultan Beig and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 2 of 1958
Judge
Reported inAIR1959Kant17; AIR1959Mys17; (1958)36MysLJ558
ActsConstitution of India - Articles 226 and 227; Motor Vehicles Act, 1939 - Sections 44(5), 57(3), 58, 58(1), 58(2), 58(3), 62, 63, 64, 64-A, 68 and 68(1); Motor Vehicles Rules - Rules 10(8) and 162
AppellantM. Basha and anr.
RespondentC. Sultan Beig and ors.
Appellant AdvocateE.S. Venkataramiah, Adv.
Respondent AdvocateAdv. General and ;S.K. Venkataranga Iyengar, Adv.
Excerpt:
.....- held, the object of section 21 being to confine the rights of tenancy only to stranger is barred. finding of the tribunal was upheld. - the order complained of does not fall within any of the clauses mentioned in the said section, nor is it a matter which has been prescribed by the rules as appealable. i am clearly of the opinion that the petitioners could not have preferred an appeal against the said order of the secretary, regional transport authority. as i have said before, that rule was in vogue under the old section 58. the amended section 58, by which we are governed in this case, has clearly laid down that such application has to be made within 60 days before the expiry of the period of permit. this contention of the learned advocate for the petitioners should therefore fail...........may specify in the permit'.the learned advocate also relied on a decision reported in united motor transport co. ltd. v. sreelakshmi motor transport co. ltd. : air1945cal260 .13. in my opinion, this contention cannot he accepted as sound. in the first place, the language used in sub-section (1) (a) of section 58 does not clearly warrant such a conclusion. what it says is that such a permit without renewal shall be effective at least for a period of 3 years. it means that ordinarily a permit would be effective for a period not less than 3 years and not more than 5 years as the regional transport authority may specify in the permit.as chief justice rajamannar observed in the case of natarajan v. regional transport officer : air1957mad392 , this would be the position if the permit is.....
Judgment:

S.R. Das Gupta, C.J.

1. This application is directed against the order passed by the Secretary, Regional Transport Authority, Bangalore, dated 28-12-1957. By the said order the Secretary, Regional Transport Authority, granted renewal of permit of Bus MYF 483 belonging to the 1st respondent for a period of 3 months with effect from 1-1-1958.

2. On 12-12-1957 the 1st respondent applied for renewal of permit of his bus MYF 483 with effect from 1-1-1958; his old permit expiring on 31-12-1957. To the said application of the 1st Respondent joint objections were filed by the petitioners on 23-12-1957 and 24-12-1957. On 19-11-1957 the petitioners themselves made an application for a permit for their bus plying on the same route, i.e., Chintamani to Bangalore via Nandigudi, Hoskote, Whitefield. H.A.L. and back.

On 28-12-1957 the Secretary, Regional Transport Authority granted the 1st Respondent's application for renewal of his permit. He, however, did not cause the said application or the substance there to be published inviting representations, as required by Sub-section (3) of Section 57 of the Motor Vehicles Act, before he granted the application of the 1st respondent for renewal of his bus permit.

The present application has been filed by the petitioners for quashing the said order of the Secretary, Regional Transport Authority, Bangalore, and directing the Regional Transport Authority, Bangalore to dispose of the application of the petitioners and Respondent 1 in accordance with law.

3. In support of this application the learned Advocate for the petitioners raised various contentions before us. In view, however, of the fact that we have decided that in the circumstances of this case no useful purpose would be served by issuing the writ asked for and we have already intimated our decision to the parties, it is really unnecessary for us, for disposing of the present application, to deal with the said contentions of the petitioner.

However, as the points canvassed before us by the learned Advocate for the petitioners in support of this application were argued at great length, 1 shall shortly deal with the same and indicate my views thereon. Before dealing, with the said contentions, it would be necessary to dispose of one preliminary objection which has been raised by Mr. S.K. Venkataranga Iyengar, Advocate for the 1st respondent, to the maintainability of tin's application.

4. Mr. Venkataranga Iyengar contended before us that the petitioners have not exhausted all the remedies which were available to them. He contended that the petitioners could file an appeal under Section 64 of the Motor Vehicles Act against the decision in question. In any event, he contended that an application for revision to the State Transport Authority would lie under Section 64-A of the Motor Vehicles Act against the decision in question.

He argued that the petitioners had a specific legal remedy and where a person has a specific legal remedy, a writ of certiorari would not lie. This contention of Mr. Venkataranga Iyengar, in my opinion, can be answered in various ways. In the first place, I am unable to hold that the petitioners have any right of appeal under Section 64 of the Motor Vehicles Act against the order in question.

The order complained of does not fall within any of the clauses mentioned in the said section, nor is it a matter which has been prescribed by the rules as appealable. I am clearly of the opinion that the petitioners could not have preferred an appeal against the said order of the Secretary, Regional Transport Authority. As for revision under Section 64A of the Motor Vehicles Act, I am of the opinion that the said section in terms does not apply to the present case.

What the said section provides is that 'the State Transport Authority may call for the record of any case in which an order has been made by a Regional Transport Authority and may pass such order in relation to the case as it deems fit'. The present order was not made by the Regional Transport Authority but by its Secretary. The section therefore in terms does not apply to the present order.

Even assuming that the section applies to the order in question, the Secretary being merely the delegated authority of the Regional Transport Authority, even then it cannot be said that the petitioners have a specific legal remedy which would bar a writ of certiorari. As laid down in the case of A.R. Sarin v. B.C. Patil : AIR1951Bom423 , by Chief Justice Chagla, specific legal remedy, which would bar a writ of certiorari can only mean that the petitioner must have a right to approach a court and he must have a right to a remedy if his case was just.

Applying this principle, it cannot be said that the petitioners have a right to approach the State Transport Authority under Section 64A, and have a right to remedy if their case was just. In the Bombay case, to which I have just now referred, it was contended that in view of the fact that Article 227 of the Constitution confers upon the High Court powers of superintendence, both administrative and judicial, including the power to correct any decision of a Tribunal within its jurisdiction, the petitioner who could avail himself of that provision, must be held to have had the specific legal remedy which would bar a writ of certiorari. That contention was negatived by their Lordships and in doing so their Lordships observed that

'Article 227 only deals with the power of a High Court and not with the rights of litigant. A litigant may approach the High Court but he has no right to do so, nor has he a right to a remedy because the High Court may refuse a remedy under Article 227 .....It cannot be said under the circumstances of the case that he had an alternative specific legal remedy open to him which he should have availed of before he asked for a prerogative writ.'

These observations, in my opinion, apply with equal force to the present case. In this case also, Section 64-A of the Motor Vehicles Act only deals with the power of the State Transport Authority to interfere with an order of the Regional Transport Authority and not with the rights of a party who is affected by the said order. A party may approach the State Transport Authority but he has no right to do so nor has he a right to a remedy because the State Transport Authority may refuse a remedy under this section.

In this connection, I should mention that the power to interfere under Section 64-A, unlike Article 227, is not given to a court but to an administrative body, and as observed by Chief Justice S.R. Das in a recent decision of the Supreme Court: State of U.P. v. Md. Nooh, 1958 SCJ 242: (AIR 1958 SC 86) (B)

'orders made on departmental 'trial' held by an officer in the department without any legal training and orders passed by his superior officers in the same department on appeal or in revision which, in the words of Harries C.J., in Asst. Collector of Customs v. Soorajmull Nagarmull : AIR1952Cal656 , were only in the nature of an appeal from Caesar to Caesar and which might not be regarded with any great confidence by persons brought before them, can hardly be equated with reasonable propriety with the orders passed by the Special Tribunal which had not merely trappings of a Court hut was a Court of law presided over by a Judge with legal training and background and on appeal therefrom by the High Court.'

I am therefore unable to hold that in view of the provisions of Section 64-A of the Motor Vehicles Act a petition for writ would not lie.

5. I shall now consider the various grounds urged on behalf of the petitioners in support of this petition. The first ground urged was that the Secretary, Regional Transport Authority, conducted the proceedings before him in a manner which is contrary to all rules of procedure and rules of natural justice.

Under this ground it was urged that (a) he entertained the application of the 1st respondent beyond the lime prescribed under the Act, (b) he did not cause the application of the petitioner to he published, nor did he invite representations in respect thereof, and (c) his non-compliance with the above-procedural rules had been made the ground for holding that the objections of the petitioners cannot be considered. I shall take up these matters one by one.

6. I shall first take up the contention that the application of the 1st respondent was made beyond the time prescribed by the Motor Vehicles Act. Section 58 (amended) of the Motor Vehicles Act lays down that an application for renewal of the permit, shall be made in the case of a stage carriage permit or a public carrier's permit 60 days before the date of expiry of the said permit.

Sub-section (3) of the said section provides that a Regional Transport Authority may entertain an application after the last date specified above for the making of such application, if the application is made not more than 15 days after the said last date and is accompanied by the prescribed fee. In this case, the permit expired on 31-12-1957.

According to Section 58 therefore an application for renewal of the said permit has to he made 60 days before that day i.e., before 31-10-1957. The application, however, was made on 12-12-1957. It was thus made long after the date which is prescribed in the said section for making an application for renewal. Even if the period of 15 days, mentioned in Sub-section (3) of Section 58 is allowed in this case, even then the application would be out of time; it having been made long after the said period.

I do not see how in these circumstances the Secretary could entertain the application. His conduct in doing so has been in clear violation of the provisions of Section 58. In other words, he has totally ignored the said provisions and has acted according to his own pleasure in the matter.

7. The next contention of the learned Advocate for the petitioners, urged under this ground, is, in my opinion, equally sound. Section 58 of the Motor Vehicles Act inter alia provides that a permit may be renewed on an application made and disposed of as if it were an application for a permit. This, in my opinion, means that all the procedures to be followed in the case of an application for a permit have to he followed in the case of an application for a renewal of permit before the same is disposed of Section 57 of the Motor Vehicles Act lays down the procedure to be followed in the case of an application for a permit. Sub-section (3) of the said section provides as follows:

'On receipt of an application for a stage carriage permit or a public carrier's permit, the Regional Transport Authority shall make the application available for inspection at the office of the Authority and shall publish 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 the date not being less than thirty days from such publication, on which, and the time and place at which, the application and any representations, received will be considered.'

If this procedure has also to b3 followed in dealing with an application for renewal of a permit then after such an application has been received, the Authority concerned shall have to publish the said application or the substance thereof in the prescribed manner and shall have to ask for representations in connection therewith to be submitted within the date mentioned therein.

It is obligatory upon the authority concerned and he is bound to follow this procedure before he can dispose of an application for renewal of a permit. It is true that in proviso to Sub-section (2) of Section 58 it is laid down that other conditions being equal, an application for renewal shall be given preference over new applications for permits, but that is a different matter altogether.

That provision does not dispense with the obligation to cause an application for renewal of a permit to be published and representations invited in respect thereof in the same manner as in the case of an application for a permit. In the case of Anjaiah v. The Regional Transport Officer, Guntur AIR 1957 Andh Pra 470 (D), their Lordships of the Andhra High Court also expressed the same view which I am taking in this matter. Their Lordships observed as follows:

'An applicant for renewal of a stage carriage permit along a particular route will generally have to survive competition along with other applicants when he applies for renewal and all that he can claim is a preference over others if other conditions are equal'.

No doubt the question involved in that decision was whether or not a renewed permit should be deemed to be a new permit. But the observation, to which I have just now referred, shows that their Lordships were of the same view which I am taking at present, viz., that, in spite of the proviso to Sub-section (2) of Section 58, the procedure laid down in Section 57 (3) has to be followed. In the case of an application for renewal of a stage carriage permit or a public carrier permit, a person applying for such renewal will have to face competition.

In the case of V.C.K. Bus Service Ltd. v. Regional Transport Authority : [1957]1SCR663 , their Lordships of the Supreme Court seem to have accepted the contention of the appellant before them in that case, namely, that under the Act an application for renewal has to be dealt with exactly as an application for a new permit, that it has to be notified under Section 57 and representations have to be called for in connection therewith and considered at a public healing, that though the grant of the previous permit furnishes a ground of preference, it is subject to the limitation that the other conditions arc equal and is thus only one of several factors to be taken into account.

Their Lordships, however, decided the question which was involved in that case, viz., whether or not the intention of the Legislature was to treat the renewal as continuation of the previous permit, on consideration of the other provisions of the Act bearing on this question. In my opinion, therefore, the officer concerned violated the mandatory provisions of the statute and has granted renewal of the 1st respondent's permit in utter disregard of the same.

It was brought to our notice by the learned Advocate for the petitioners that this very officer had followed the correct procedure in a previous application for renewal of permit. The officer therefore was fully aware of the procedure which has to be followed in cases of renewal of permits. Why then did he act differently in this case, totally disregarding all rules of procedure, is a question which has not been satisfactorily answered before us.

One thing seems to me to be clear that this Officer deliberately disregarded the rules of procedure laid down in the Act in order to find in favour of the 1st respondent.

8. His subsequent conduct in refusing to hear the objections of the petitioners on the ground that no representations have been invited under Sub-section (3) of Section 57 of the Act is equally strange. It appears that he himself violated the rules of procedure in this matter and his non-compliance with the said rules of procedure has been utilised by himself as a ground for holding that the objections of the petitioners cannot be considered.

9. Before concluding my judgment on this point, I should refer to Rule 162 of the Motor Vehicles Act which was in existence before the present amended Section 58 came into operation. Under that rule application for renewal of a permit had to be made not less than 15 days before the expiry of the term.

As I have said before, that rule was in vogue under the old Section 58. The amended Section 58, by which we are governed in this case, has clearly laid down that such application has to be made within 60 days before the expiry of the period of permit. The old Rule 162 therefore stands in direct conflict with the amended Section 58 and, in my opinion the said rule is ultra vires the section and shall have to be struck down.

In the case reported in V. T. Thomas v. Secretary, Central Road Traffic Board : AIR1957Ker187 , the High Court of Kerala took the view that Rule 162, as it stood, was ultra vires of even the old Section 58. In any event, as I have just now said, in view of the clear provisions of the amended Section 58 of the Act, Rule 162 cannot be operative.

10. I now pass on to the other grounds urged by the learned Advocate for the petitioners. The learned Advocate for the Petitioners contended before me that the delegation of the power of the Regional Transport Authority to renew a permit to its Secretary is illegal and ultra vires the Motor Vehicles Act. He pointed out that the Government by notification dated 15-5-1957, purporting to exercise its powers conferred by Clause (a) of Sub-section (21 of Section 58 of the Motor Vehicles Act, 1939, framed, amongst others, Rule 10 (8) whereby the Regional Transport Authority was empowered to delegate to its Secretary its power to renew a permit under Section 58 and Section 63.

The learned Advocate contended that such delegation was illegal and ultra vires of the Act. He further contended that the Government could not frame such a rule permitting such delegation under Section 68 of the Motor Vehicles Act. This contention of the learned Advocate for the petitioners does not seem to he sound.

11. Sub-section (1) of Section 68 provides that the Government may make rules for the purpose of carrying into effect the provisions of the Chapter iu which the said section appears. Sub-section (2) of the said section provides that 'without prejudice to the generality of the powers, rules may be made with respect to all or any of the matters mentioned in the said sub-section.'

In Clause (za) of the said sub-section one of the matters mentioned is -- 'any other matter which is to be or may be prescribed'. Thus it appears that the Government is empowered, in the first instance, to make rules for the purpose of carrying into effect the provisions of this chapter. Section 58 appears in this Chapter and the Government therefore can make rules for carrying into effect the provisions of the said section.

The Government can also make rules in respect of any other matter which may be prescribed by virtue of Clause (za) of Sub-section 2 of Section 68. Sub-section (5) of Section 44 provides that 'the State Transport Authority and any Regional Transport Authority, if authorised in this behalf by rules made under Section 68, may delegate such of its powers and functions to such authority or person and subject to such restrictions, limitations and conditions as may be prescribed by the said rules'.

Thus reading Section 68 along with Section 44 (5), it seems to me to be clear that the Government has the power to make rules enabling the Regional Transport Authority to delegate its power to renew a permit under Sections 58 and 63 to its Secretary. This contention of the learned Advocate for the petitioners should therefore fail.

12. Before concluding my judgment I should refer to one point which was urged by Mr. Venkataranga Iyengar in support of his client's case. He contended that once a stage carriage permit is renewed, such renewal must enure For a period of 3 years at least. In this case, the permit in question was renewed from 1955 every quarter.

Mr. Venkataranga Iyengar contended that such renewals must therefore be operative at least for 3 years. This, he contended, is the true effect of the provisions of Sub-section (l)(a) of Section 58 which reads as follows:

'A Stage carriage permit or a contract carriage permit other than a temporary permit issued under Section 62 shall be effective without renewal for such period, not less than three years and not more than five years, as the Regional Transport Authority may specify in the permit'.

The learned Advocate also relied on a decision reported in United Motor Transport Co. Ltd. v. Sreelakshmi Motor Transport Co. Ltd. : AIR1945Cal260 .

13. In my opinion, this contention cannot he accepted as sound. In the first place, the language used in Sub-section (1) (a) of Section 58 does not clearly warrant such a conclusion. What it says is that such a permit without renewal shall be effective at least for a period of 3 years. It means that ordinarily a permit would be effective for a period not less than 3 years and not more than 5 years as the Regional Transport Authority may specify in the permit.

As Chief Justice Rajamannar observed in the case of Natarajan v. Regional Transport Officer : AIR1957Mad392 , this would be the position if the permit is not renewed. But if it is renewed, it will be effective for such period as the authority may specify in the order of renewal and this result follows from the words 'without renewal' appearing in Section 58 (1) of the Act.

14. The Calcutta case, on which the learned Advocate relies, viz. : AIR1945Cal260 , does not, in my opinion, deal with this point. In that case, their Lordships were primarily concerned with the question as to whether or not certain orders issued by the Provincial Transport Authority of Assam communicated by the Authority to the plaintiffs amounted to permits.

Their Lordships held that those documents came within the definition of permits and therefore the issue of permit for a period less than 3 years would be valid for a period of 3 years. The following observations of their Lordships made in that judgment, in my opinion, show that their Lordships were not considering the point which we have to decide at present.

Their Lordships observed as follows :

'That is the view we take of Section 58 of the Act, for that section says that 'without renewal' the permit shall be effective for a period of not less than three years. The phrase 'without renewal' shows that the Legislature had in contemplation cases where the competent Transport Authority had in fact issued permits for a fixed period and that period was less than three years.'

I am clearly of the opinion that this contention of the learned Advocate must fail.

15. Although we find in favour of the petitioners on some of the grounds urged before us, in the special circumstances of this, case we do not think any useful purpose would be served by issuing a writ. We have already indicated our decision on 14-3-1958.

H. Hombe Gowda, J.

16. I agree.

ORDER

17. We announce the result of our decision today. Our reasoned judgment will follow. We have come to the conclusion that although there is considerable force in some of the contentions of the petitioner and normally we would have been inclined to issue a writ but in the circumstances of this case, as the period of the permit is expiring with the 31st of this month, no writ need be issued, The Petitioner will get costs of this petition (Advocate's fee Rs. 100/-).

18. Writ refused.


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