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Mahabir Prasad Sharma and ors. Vs. the State Transport and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 625 of 1970
Judge
Reported inAIR1971All317
ActsConstitution of India - Article 226; Motor Vehicles Act, 1939 - Sections 47 and 62
AppellantMahabir Prasad Sharma and ors.
RespondentThe State Transport and anr.
Appellant AdvocateL.P. Naithani, Adv.
Respondent AdvocateDaya Saran Sinha, Adv.
Excerpt:
.....- writ proceeding - sections 47 and 62 of motor vehicles act, 1939 - grant of temporary permits by regional transport authority - high court in writ proceeding cannot issue order. - - highcourts possess general power to issue anydirection to authorities for enforcement offundamental rights as well as for other purposes. recognition of any restriction which may conceivably render the court helpless to interfere in a case which clearly calls for interference either for the protection of fundamental rights or for upholding the constitution or to correct a clear or manifest injustice would be an abdication of power which it is not open to a high court to do. to grant to the petitioner permits in respect of five buses in respect of which a joint application was made originally by the..........regional transport authority may without following the procedure laid down in section 57, grant permits, to be effective for a limited period not in any case to exceed four months, to authorise the use of a transport vehicle temporarily--(a) for the conveyance of passengers on special occasions such as to and, from fairs and religious gatherings, or(b) for the purposes of seasonal business, or(c) to meet a particular temporary need, or(d) pending decision, on an application for the renewal of a permit; and may attach to any such permit any such condition it thinks fit .....' 6. in the present case banarasi dassharma and others were not seeking renewal of any permit. consequently, the present case is not covered by clause (d) of section 62 of the act.7. in p. j. irani v. state of.....
Judgment:

Oak, C.J.

1. This reference arises out of proceedings for the grant of permits under the Motor Vehicles Act, 1939. Banarsi Das Sharma and three others have filed in this Court a writ petition challenging certain orders of the State Transport Appellate Tribunal. U. P. and the Regional Transport Authority, Meerut. This is writ petition No. 574 of 1969. During the pendency of the writ petition, Banarsi Das Sharma, respondent No. 1 applied to the Court for the grant of temporary permits. A temporary permit was granted on 27-11-1969. Another temporary permit was granted by the Court on 17-3-1970. On 30-7-1970 a single Judge of this Court passed an order directing the Regional Transport Authority, Meerut to grant another temporary permit to Banarsi Das Sharma, petitioner, effective from 3-8-1970 for a period of four months.

2. Against this order of the learnedSingle Judge, dated 30-7-1970, a specialappeal, has been filed by two persons, Mahabir Prasad Sharma and Ajayab Singh. Thisis Special Appeal No. 625 of 1970. Thefirst ground in the special appeal is that theHigh Court had no jurisdiction to issue atemporary permit. That is a matter in thesole discretion of the Regional TransportAuthorities. When the special appeal cameup for hearing before a Division Bench on6-11-1970 the learned Judges consideredthat the point raised in the special appealis of general importance. They, therefore,referred the following question to a FullBench:--

'Can this Court in a proceeding under Article 226 of the Constitution issue an order or direction to the Regional Transport Authority to grant temporary permits?'

3. Mr. Daya Saran Sinha appearing for Banarsi Das, respondent No. 2, pointed out that the special appeal is directed against an interlocutory order passed in a pending writ petition. He contended that no special appeal lies against such an interlocutory order Mr. Sinha further pointed out that the impungned temporary permit was effective for a period of four months from 3-8-1970. The period expired in December, 1970. Mr. Sinha, therefore, contended that the special appeal has become infructuous. He suggested that we need not answer the question formulated by the Division Bench. We are, however, of the opinion that the question formulated by the Division Bench is of general importance, and is likely to arise frequently in writ petitions relating to transport matters. We, therefore, propose to answer the question referred to us. I express no opinion on the questions whether the special appeal is maintainable, and whether it has now become infructuous.

4. In order to decide whether this Court is competent to issue a direction to a Regional Transport Authority to grant a temporary permit, it will be convenient to outline the general scheme of the Motor Vehicles Act, 1939 (hereafter referred to as the Act) for the grant of permits. Chapter IV of the Act provides for control of transport vehicles. Section 42 lays down that no owner of a transport vehicle shall use or permit the use of the vehicle in any public place save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority. Section 43 confers on the State Government power to control road transport. Having regard to the advantages offered to the public and such other matters, a State Government may issue directions to the State Transport Authority regarding grant of permits and similar matters. In the present case we are concerned with, the grant of stage carriage permits. Section 47 of the Act lays down the procedure of Regional Transport Authority in considering applications for stage carriage permits. In considering an application for a stage carriage permit, a Regional Transport Authority has to consider various matters, which have been enumerated in Clauses (a) to (f) of Sub-section (1) of Section 47. According to Section 48, a Regional Transport Authority may, on an application made under Section 46, grant a stage carriage permit or refuse to grant such a permit. Section 64 provides for appeals. Any person aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit may appeal to the prescribed Authority.

5. Section 62 of the Act provides for temporary permits.

'A Regional Transport Authority may without following the procedure laid down in Section 57, grant permits, to be effective for a limited period not in any case to exceed four months, to authorise the use of a transport vehicle temporarily--

(a) for the conveyance of passengers on special occasions such as to and, from fairs and religious gatherings, or

(b) for the purposes of seasonal business, or

(c) to meet a particular temporary need, or

(d) pending decision, on an application for the renewal of a permit; and may attach to any such permit any such condition it thinks fit .....'

6. In the present case Banarasi DasSharma and others were not seeking renewal of any permit. Consequently, the present case is not covered by Clause (d) of Section 62 of the Act.

7. In P. J. Irani v. State of Madras, (AIR 1967 SC 1731) it was held that the power of High Courts under Article 226 of the Constitution is not limited to the issue of writs falling under particular groupings such as certiorari, mandamus etc., as thesewrits have been understood in England. HighCourts possess general power to issue anydirection to authorities for enforcement offundamental rights as well as for other purposes.

8. In S. C. Prashar v. Vasantsen Dwarkadas, ATR 1956 Bom 530 Chagla, C. J., observed on page 533:--

'It is too late in the day to argue that the powers of the High Court under Article 226 and Article 227 are not of the widest. Except for the territorial limitation placed upon it by the Constitution, there is no limit upon the right or the power of the High Court to issue a writ under Article 220 or Article 227. Undoubtedly, the Courts for their own guidance have put limitations upon their very wide power, but those are self-imposed limitations, they are not legal or consfitutional limitations.'

9. In T. C. Basappa v. T. Nagappa, AIR 1954 SC 440 it was held that, in view of the express provisions in our Constitution, the Court need not now look back to the early history or the procedural technicalities of writs in English Law, nor feel oppressed by any difference or change of opinion expressed by English Judges. It can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner so long as it keeps to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law.

10. In Dwarka Nath v. I. T. Officer, Kanpur, AIR 1966 SC 81 it was held that Article 226 is couched in comprehensive phraseology, and it ex facie confers a wide power on the High Court to reach injustice wherever it is found.

11. In Hari Raj v. Sanchalak Panchayat Raj, U. P. Govt., Lucknow, AIR 1868 All 246, a Government servant filed a writ petition claiming arrears of salary. Dhavan, J., allowed the writ petition, and directed the State Government to pay the petitioner arrears of salary together with increments which had fallen duo and interest at the rate of 6 per cent per annum.

12. In P. S. Venkataswamy v. University of Mysore, AIR 1964 Mys 159 it was held that restrictions which High. Courts voluntarily impose upon themselves in exercising power or jurisdiction under Article 226 are not derived from technicalities of English law but are those intended to maintain the character of that power as the power of judicial review. Recognition of any restriction which may conceivably render the Court helpless to interfere in a case which clearly calls for interference either for the protection of fundamental rights or for upholding the Constitution or to correct a clear or manifest injustice would be an abdication of power which it is not open to a High Court to do. In the last analysis, the discretion whether or not to interfere and if so, what the manner and extent of such interference should be, must depend upon the facts and circumstances of each case, subject no doubt to principles and considerations appropriate to the idea of judicial review.

13. In American Jurisprudence, Second Edition, Volume 52 the law relating to discretion as to issuance of licence is stated on page 537 under paragraph 208 thus:--

'Boards and officers charged with the duty or power of issuing licenses and permits usually exercise a discretionary function in the matter, their determination involves a judgment as to the right and fitness of the applicant, and generally calls for examining evidence and passing upon questions of fact. Where such is the case, courts may compel them to exercise their judgment or discretion or compel them by mandamus to decide in a particular way. If in the proper exercise of their power they refuse a licence or permit, the writ will not issue to revise or review their decision.'

14. In Halsbury's Laws of England, 3rd Edition, Volume II it is stated on page 85 under paragraph 160 that where a statute, which imposes a duty, leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be earned out in a specific way.

15. In Sri Rama Vilas Service v. Chandrasekaran, AIR 1965 SC 107 it was held that consideration of public interest is an important factor in deciding claims for permits. Refusal of permit on the ground that it will make the petitioner monopolist was proper.

16. In State of Mysore v. K. N. Chandrasekharan, AIR 1965 SC 532 the Mysore Public Service Commission prepared a list of 62 persons selected for the posts of Munsifs. The petitioners claimed that their names also should have been in the list of persons so selected. Mysore High Court directed the Commission to include the names of the petitioners in the list. It was held by the Supreme Court that the direction given by the High Court was without authority.

17. In Govt. of India v. Smt Sahodra Devi, (1969 All LJ 582) = (AIR 1970 All 357), it was held that it is settled law that in a matter falling to be decided within the discretion of an authority, an invalid order made by the authority may be quashed by the Court under Article 226 of the Constitution. Rut it is not open to the Court to assume to itself the function conferred upon that authority and exercise a discretion which the law in its wisdom has vested in that authority.

18. In The State v. Mohd. Raihan, (Special Appeal No. 188 of 1956 decided on 18-4-1960 All) a single Judge of this Court directed the Regional Transport Authority to grant a permit to the respondent. That direction was set aside in special appeal. The learned Judges of the Division Bench observed on page 7 of the judgment:--

'We are, therefore, of the opinion that the steps taken by the respondent for getting rid of the order dated 18th October, 1955 were mis-conceived and did not really give jurisdiction to the learned Judge to quash that order.'

19. In Ramayya v. State of Madras, AIR 1952 Mad 300, it was held that Section 47, Motor Vehicles Act is not exhaustive. Although the Transport Authority has no jurisdiction to issue or refuse a permit without taking the matters mentioned therein into consideration, the section does not in terms exclude from the consideration other matters germane to the question to be decided.

20. The same view was taken by Jagdish Sahai, J. in Brijlal Misra v. Regional Transport Authority, Kanpur, AIR 1958 All 890.

21. For purposes of the present case, it is not necessary to decide whether the matters enumerated in Clauses (a) to (f) of Sub-section (1) of Section 47 of the Act are exhaustive or not. It is clear that the matters enumerated in Clauses (a) to (f) of Sub-section (1) of Section 47 have to be taken into consideration by a Regional Transport Authority in considering an application for a stage carriage permit. The same considerations apply to the issue of temporary permits under Section 62 of the Act. This question came up for consideration before a Full Bench of this Court in Shiv Charan Das Sharma v. Regional Transport Authority, 1968 All LJ 279 = (AIR 1969 All 269). It was observed on p. 285:

'While granting temporary permits under Section 62, only the procedure laid down in Section 56 of that Act could be dispensed with, but it could not be said that the requirements of Section 47 are excluded. As a matter of fact the conditions indicated in Clauses (a) to (d) in Section 62 have to be taken into consideration along with the matters pointed out in Section 47 (1) (a) to (f) as also the other provisions of the section for considering an application for stage carriage permit.'

22. In Devi Sahai v. Regional Transport Authority, Jaipur, ILR (1961) 11 Rai S33, it was found that there was no valid ground for rejection of petitioners' applications for renewal of permits. The Regional Transport Authority without any justification went on postponing consideration of the matter. It was held that the High Court would be justified in issuing a direction to the Regional Transport Authority to renew permits of the petitioners.

23. In Mohd. Raihan v. State of U. P., AIR 1956 All 594, Mehrotra, J., directed the Regional Transport Authority to grant a permit to the petitioner. This decision was reversed in the Special Appeal No. 188 of 1956 decided on 18-4-1960 (All).

24. In Mahaboob Sheriff and Sons v. Mysore S. T. Authority, AIR 1960 SG 321 the Regional Transport Authority renewed a permit under Section 58 (2) of the Act for a period of one year only. Section 58 lays down that the period of a permit shall not be less than three years or more than five years. It was held by the Supreme Court that it was open to the Court to direct the Authority to carry out the duty laid on it by Section 58 (1) (a) read with Section 58 (2) when it has granted the renewal.

25. In Veerappa v. Raman and Raman Ltd., AIR 1952 SC 192 the Supreme Court discussed the extent of jurisdiction under Article 226, and dealt with the question of grant of permits by High Courts. Consequently, the decision of the Supreme Court in Veerappa's case has important bearing on the present case. Their Lordships observed on pages 195 and 196 thus:-

'It is unnecessary for the disposal of this appeal to consider and decide on the exact scope and extent of the jurisdiction of the High Court under Article 226. Whether the writs it can issue must be analogous to the writs of 'heabeas corpus', mandamus', 'prohibition', 'quo warranto' and 'certiorari' specified therein and the power is subject to all the limitations, or restrictions imposed on the exercise of this jurisdiction, or whether the High Court is at liberty to issue any suitable directions or orders or writs untrammelled by any conditions, whenever the interests of justice so require, is a large and somewhat difficult problem which does not arise for solution now.

Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned aud decide what is the proper view to be taken or the order to be made.

The Motor Vehicles Act is a statute which creates new rights and liabilities and prescribes an elaborate procedure for their regulation. No one is entitled to a permit as of right even if he satisfies all the prescribed conditions. The grant of a permit is entirely within the discretion of the transport authorities and naturally depends on several circumstances which have to be taken into account. The Regional Transport Authority and the Provincial Transport Authority are entrusted under Section 42 with this power. They may be described as administrative bodies exercising quasi-judicial functions in the matter of the grant of permits.

There is, therefore, the regular hierarchy of administrative bodies established to deal with the regulation of Transport by means of motor vehicles.

Thus we have before us a complete and precise scheme for regulating the issue of permits, providing what matters are to be taken into consideration as relevant, and prescribing appeals and revisions from subordinate bodies to higher authorities. The remedies for the redress of grievances or the correction of errors are found in the statute itself and it is to these remedies that resort must generally be had. As observed already, the issue or refusal of permits is solely within the discretion of the transport authorities and it is not a matter of right.'

26. In that case the Madras High Court gave the following direction to the Regional Transport Authority Tanjore:

'To grant to the petitioner permits in respect of five buses in respect of which a joint application was made originally by the petitioner and Balasubramania Pillai and that in case the above buses have been condemned, the petitioner shall be at liberty to provide substitutes within such times as may be prescribed by the authorities.'

It was held by the Supreme Court that such a direction was clearly in excess of powers and jurisdiction of Madras High Court.

It is true that in Verrappa's case the Supreme Court was considering the question whether Madras High Court had power to grant permanent permits, whereas in the present case we are discussing the question whether this Court is competent to issue temporary permits. But the broad principle laid down by the Supreme Court in Veerappa's case, AIR 1952 SC 192 will equally apply to the question of competence of High Courts to issue temporary permits under the Motor Vehicles Act. In Veerappa's case the Supreme Court expressly laid clown that Madras High Court had no jurisdiction to direct the Regional Transport Authority, Tanjore to grant permits to the petitioner. The same considerations will apply to the power of this Court in the matter of grant of temporary permits.

28. In State of Orissa v. Marian Gopal, AIR 1952 SC 12 it was held that an interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in suit or proceeding, Since this Court has no power to issue an order or direction to a Regional Transport Authority to grant a permanent permit, it follows that the Court has no power to issue such an order or direction with respect to a temporary permit. It is true that Article 226 of the Constitution has conferred very wide power on High Courts. But it has been recognised by Courts that that wide power has its limitations. A High Court cannot assume the functions of administrative bodies. All that the High Court can do is to ensure that administrative bodies act within jurisdiction, do not improperly decline to exercise jurisdiction, and do not commit patent errors of law. This Court cannot itself dispose of matters, which are in the discretion of such administrative authorities.

29. My answer to the question referred to the Full Bench is, therefore, as follows. In a proceeding under Article 226 of the Constitution, this Court cannot issue an order or direction to the Regional Transport Authority to grant temporary permits.

S.N. Singh, J.

30. I agree.

Lokur, J.

31. I agree.

BY THE COURT

32. Our answer to the question referred to the Full Bench is as follows. In a proceeding under Article 226 of the Constitution, this Court cannot issue an order or direction to the Regional Transport Authority to grant temporary permits.

33. Let the papers be returned to the Division Bench with this answer.


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