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Lakshmi NaraIn Agarwala Vs. State Transport Authority and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 226 of 1963
Judge
Reported inAIR1967All573
ActsMotor Vehicles Act, 1939 - Sections 47(1), 47(3) and 64A; Constitution of India - Article 226
AppellantLakshmi NaraIn Agarwala
RespondentState Transport Authority and anr.
Appellant AdvocateD.N. Jha, Adv.
Respondent AdvocateStanding Counsel for Opposite Parties 1 and 2
DispositionPetition dismissed
Excerpt:
.....vehicles act, 1939 -while disposing of an application for stage carriage permit and deciding the route - regional transport authority not to given an opportunity of being heard to the applicants. - - 1962 came to be passed without affording any chance to the existing operators on lucknow-hardoi route, the argument is that the said resolution increasing the strength on the route by twenty is bad and deserves to be struck down. the contention of the learned counsel is that the basis on which these two decisions proceed must be taken to be nonexistent in view of the supreme court decision in the case of abdul mateen v ram kailash pandey, air 1963 sc 64 and hence those decisions of this court may not be treated as laying down good law. ' 7. there is thus no doubt that in view of the..........by sub-section (3) reproduced above. it no doubt provides that in determining the strength of any route a regional transport authority is to have regard to the 'matters mentioned in sub-section (1)'. thus, the question arises as to what are the matters mentioned in sub-section (1) which according to sub-section (3) have to be taken into consideration by a regional transport authority while determining the strength of any route. as shall appear from sub-section (1) reproduced above, it purports to lav down considerations to be taken into account while disposing of applications for stage carriage permits. its opening sentence says that 'a regional transport authority shall. .... .haveregard to the following matters, namely:' and then it goes on to enumerate those matters in various.....
Judgment:

Lakshmi Prasad, J.

1. This petition under Article 226 of the Constitution has been referred to a Division Bench by our brother Nigam by his order dated 4th November. 1965 on the ground that it involves the decision of an important question of law on which there has been some difference of opinion between Nigam J. on the one hand and Jagdish Sahai J. on the other and as such, it is desirable to have an authoritative pronouncement by this Court.

2. By their resolution dated 18th November, 1962 the Regional Transport Authority, Lucknow Region, opposite party No. 2, took a decision to increase the strength of Lucknow-Hardoi route via Malihabad and Rahimabad by twenty. This decision was taken without affording any opportunity to the operators already operating on that route to make any representation against the proposed increase in the strength on that route. Accordingly, some of the operators preferred revisions before the State Transport Authority, opposite party No. 1 in December, 1962 under Section 64-A of the Motor Vehicles Act against the aforesaid decision of the Regional Transport Authority to increase the strength on the said route by twenty. Opposite party No. 2 dismissed those revisions as -non-maintainable by an order dated 21st March. 1963.

The petitioner is one of the existing operators whb had gone in revision before the State Transport Authority and whose revision has been dismissed by the aforesaid order. It is in these circumstances that he prefers this petition under Article 226 of the Constitution praying that the said order dated 21st March. 1963 passed by opposite party No. 1 be quashed by a wrif of certiorari and further opposite party No. 1 be directed to dispose of the revision on merits according to law.

3. The petition has been contested by the opposite parties We have heard the learned counsel for the parties.

4. The contention of Sri Jha appearing for the petitioner is that on reading Sub-sections (1) and (3) of Section 47 of the Motor Vehicles Act together it is obvious that the law enjoins on the Regional Transpori Authority to take into consideration the representations madeby the existing operators on a particular route before taking a decision for an increase in the existing strength on that route. Thus, his contention is that in order to comply with that requirement it is incumbent on the Regional Transport Authority whenever it proposes to increase the existing strength on any route to give notice to the persons already operating on that route to enable them to make representations; if any, against the proposed change in the existing strength of the route. Since admittedly, no notice in the instant case was given and the resolution dated 17th November. 1962 came to be passed without affording any chance to the existing operators on Lucknow-Hardoi route, the argument is that the said resolution increasing the strength on the route by twenty is bad and deserves to be struck down.

As regards the view expressed against the said contention in the case of Brij Lal Misra v. Regional Transport Authority, AIR 1958 All 390 by Jagdish Sahai J. and affirmed in the case of Lakshmi Chand v. Regional Transport Authority, AIR 1959 AH 782 by a Division Bench, consisting of Mootham C. J. and Reghubar Dayal, J. The contention of the learned counsel is that the basis on which these two decisions proceed must be taken to be nonexistent in view of the Supreme Court decision in the case of Abdul Mateen v Ram Kailash Pandey, AIR 1963 SC 64 and hence those decisions of this Court may not be treated as laying down good law.

5. Section 47(1) provides:

'A Regional Transport Authority shall, in considering an application for a stage carriage permit, have regard to the following matters. namely:

(a) the interests of the Public generally;

(b) the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken;

(c) the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the places to be served;

(d) the benefit to any particular locality or localities likely to be afforded by the service ;

(e) the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending;

(f) the condition of the roads included in the proposed route or area; and shall also take into consideration any representations made by persons already providing passenger transport facilities by any means along or near the proposed route or area or by any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government, or by any local authority or police authority within whose jurisdiction any part of the proposed route or area lies;'

Then we have Sub-section (3) to say:

'A Regional Transport Authority may, having regard to the matters mentioned in Subsection (1), limit the number of stage carriages generally or of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region.'

It is thus obvious that the power to fix strength on any particular route is conferred on the Regional Transport Authority by Sub-section (3) reproduced above. it no doubt provides that in determining the strength of any route a Regional Transport Authority is to have regard to the 'matters mentioned in Sub-section (1)'. Thus, the question arises as to what are the matters mentioned in Sub-section (1) which according to Sub-section (3) have to be taken into consideration by a Regional Transport Authority while determining the strength of any route. As shall appear from Sub-section (1) reproduced above, it purports to lav down considerations to be taken into account while disposing of applications for stage carriage permits. Its opening sentence says that 'A Regional Transport Authority shall. .... .haveregard to the following matters, namely:' and then it goes on to enumerate those matters in various clauses designated as (a) to (f). Thereafter Sub-section (1) goes on to say that a Regional Transport Authority shall also take into consideration any representations etc.

On a plain reading of Sub-section (1) we find ourselves in agreement with the view expressed by our brother Jagdish Sahai and affirmed in a subsequent case decided by a Division Bench of this Court, that the matters required to be considered by Sub-section (1) for disposing of an application for stage carriage permit are only those which are enumerated in Clauses (a) to (f), and do not include representations etc. referred to in the final clause beginning with the words 'and shall also take into consideration any representations. .' it is true that there is a semi colon at the end of each of Clauses (a) to (f), and there is no conjunction in between Clauses (e) and (f) and further, there is a conjunction in between the Clause (f) and the final clause, and as such, looking at the provisions superficially it may be possible to think that what is said in the final clause below Clause (f) is also included in the expression 'following matters, namely' occurring in the opening clause of Sub-section (1). But a close scrutiny of the entire provision leaves no doubt that it is not possible to put such an interpretation for the simple reason that care is taken to use the words 'shall also take into consideration' in the last clause beginning with the conjunction 'and' The use of the words 'shall also take into consideration' in the last clause has the effect of disjoining what follows those words from Clause (a) to (f) which follow the expression 'the following matters, namely' Once it is clear that only what is stated in Cluses (a) to (f) of Sub-section (1) stands included in the expresion 'the following matters, namely' occurring in the opening clause of Sub-section (1), there remainsno difficulty in concluding that the 'matters' referred to in Sub-section (3) and required to be taken into consideration for determining the strength on any route, mean only what is stated in Clauses (a) to (f) of Sub-section (1) and do not include 'representations' required to be taken into consideration by Sub-section (1) while disposing of an application for stage carriage permit.

We are thus unable to accept the contention of the learned counsel that the requirement of Sub-section (3) is to take into consideration representations by persons already providing passenger transport facilities, and hence, it is incumbent on the Regional Transport Authority to afford an opportunity to such persons to make representations, if any, before taking a decision in regard to the strength on any route under Sub-section (3).

6. The contention of the learned counsel, however, is that the right of the existing operators to make representations in this behalf has been recognised even in the above mentioned two cases of this Court with the modification that they have a right to make such representations not at the stage action is being taken under Sub-section (3) but at the stage the applications for stage carriage permits are taken up for consideration on merits, and since, in view of the Supreme Court decision referred to above, it is not possible to entertain such representations, at the stage of consideration of applications on merit, it must be held that they have got to be entertained before a decision is taken in regard to the strength under Sub-section (3). The material observations in the Supreme Court case occur on page 67 of the report. These are in the following words:

'We cannot accept the contention on behalf of the appellant that when the Regional Transport Authority following the procedure provided in Section 57, comes to grant or refuse a permit it can ignore the limit fixed under Section 47(3), because it is also the authority making the order under Section 48. Section 47(3) is concerned with the general order limiting stage carriages generally etc. on a consideration of matters specified in Section 47(1). That general order can be modified by the Regional Transport Authority if it so decides, one way or the other But the modification of that order is not a matter for consideration when the Regional Transport Authority is dealing with the actual grant of permits under Section 48 read with Section 57. for at that stage what the Regional Transport Authority has to do is to choose between various applicants who may have made applications to it under Section 46 read with Section 57. That, in our opinion, is not the stage where the general order passed under Section 47(3) can be reconsidered.'

7. There is thus no doubt that in view of the above mentioned observations of the Supreme Court, the view expressed in the two Allahabad cases, that existing operators can make representations against the determination of the strength under Sub-section (3) at the stage the applications for stage carriage permits are taken into consideration on merit,cannot ne taken to be laying down good law.Still, we are unable to see as to how a person placed in the position of the petitioner can claim as a matter of right to be heard by a Regional Transport Authority whenever it decides to undertake redetermination of the strength on a route under Sub-section (3). Obviously, if no such right has been conferred on him by the statute, he can have none unless if be possible to say that by such determination any of his rights is affected. It may be that if a larger number of operators is put on the route with the result that the profits so far earned by the existing operators become divisible among a larger number of persons and, as such, an increase in the strength of the route may, in ultimate analysis, mean some diminution in the income of existing operators. But that fact by itself does not furnish the existing operators with any cause of action in so far as by getting permits they get no monopoly and, as such, whatever be the ultimate effect of an increase in the strength of the route it does not entitle them to claim notice. It thus follows that neither there is any provision in the Act or in the rules requiring a notice being given to an existing operator in regard to a proposal to increase the number of operators on a route nor the determination of such a matter affects prejudicially an existing operator so as to entitle him to be heard before the proposed action is taken. In that view of the matter we are unable to countenance the contention of the learned counsel that an existing operator must have his say in the matter of determination of the strength on a route under Sub-section (3) of Section 47 before a final decision is taken thereunder. Section 47(3) appears to confer discretion on the Regional Transport Authority in the matter of determination of strength on a route and the same is to be exercised after taking into consideration various matters enumerated in Clauses (a) to (f) of Sub-section (1). It is nobody's case that in passing the impugned resolution opposite party No. 2 failed to take into consideration any of the matters enumerated in Clauses (a) to (f) of Sub-section (1). Hence, the inevitable conclusion is that there is nothing bad about the impugned resolution so as to call for any interference with it.

8. The only other contention raised before us on behalf of the petitioner is that an order passed under Section 47(3), whether it be taken to be a quasi judicial or administrative order, is revisable under Section 64-A of the Motor Vehicles Act, and as such, the view taken by opposite party No. 1 that the petitioner's revision is not maintainable, deserves to be quashed. There was a controversy between the parties if an order under Section 47(3) would be a quasi judicial order or an administrative order. The contention of the learned counsel for the petitioner was that it would be a quasi judicial order, whereas that of the Senior standing Counsel was that it would be a purely administrative order.

As already mentioned learned counsel for the petitioner maintained that whatever viewbe taken in regard to the nature of an order under Section 47(3). there could be no two opinions that it was a revisable order under Section 64-A of the Act. And, on that score learned counsel for the petitioner maintained that the petitioner was entitled to a relief with the direction to opposite party No. 1 to dispose of the petitioner's revision on merit according to law. In view of our decision that the order passed by opposite party No. 2 under Section 47(3) to revise which the petitioner had filed a revision under Section 64-A, was a good order and did not call for any interference, we consider it unnecessary, to decide the above mentioned controversy, namely if an order under Section 47(3) is a quasi judicial order or a purely administrative order, and whether or not a revision against such an order is maintainable under Section 64-A. because even if it be accepted that a revision against such an order is competent under Section 64-A, it would provide no ground for interference with the impugned order of opposite party No. 1 by this court in exercise of its writ jurisdiction. In other words, if the order sought to be revised is found to be a good order not requiring any interference, then the dismissal of a revision preferred from it, whether on merit or on the ground of non-maintainability, would provide no occasion for the issue of a writ. In that view of the matter, we without -deciding the other point raised by the learned counsel, hold that the petition fails.

9. The petition is dismissed with costs.


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