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Nazir Bhai Haji Ghisabhai Vs. Phoolchand Munnalal Jaiswal and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 174 of 1961
Judge
Reported inAIR1962MP199; 1962MPLJ570
ActsConstitution of India - Article 226; Motor Vehicles Act - Sections 47
AppellantNazir Bhai Haji Ghisabhai
RespondentPhoolchand Munnalal Jaiswal and ors.
Appellant AdvocateK.A. Chitaley, ;B.P. Gupta and ;V.S. Dabir, Advs.
Respondent AdvocateN.N. Phadke, ;G.M. Chaphekar and ;P.D. Pathak, Advs. for Respondent No. 1
DispositionPetition dismissed
Cases ReferredV. C. K. Bus Service Ltd. v. Regional Transport Authority
Excerpt:
.....applicant had made applications for different routes but they were not accepted by the regional transport authority, every time the applicant offered before the regional transport authority a passenger vehicle of good model but having not obtained permission, he had to sell it to other businessmen. that passenger vehicle is in a better condition than the spare passenger vehicles with other applicants and the seats are more comfortable for the passengers. in our judgment, the applicant phoolchand jaiswal appears to be the best for this route. chitale the regional transport authority merely observed that the petitioner, who was operating two routes, already had sufficient business in hand and he should endeavour to improve the transport facilities provided by him on those routes, but..........representations against the rival claimants. in regard to the claim made by nazirbhai the regional transport authority observed: 'the applicant nazirbhai haji chisabhai has two routes and a 1953 model spare passenger bus. the applicant should give to the public better transport facilities by paying special attention to the passenger buses running on kannod-nemawar and indore-sendhwa routes. his claim for this route appears to be inferior.' about phoolchand, that authority said: 'the applicant phoolchand jaiswal, indore, is the remaining applicant for the route. at present the applicant is working in the capacity of manager of the passenger buses of rajaram biharilal, jugalkishore siddhanah and pramilabai mule on indore-chambal and indore-dhar routes. he himself is a driver. from time to.....
Judgment:

Pandey, J.

1. This petition under Articles 226 and 227 of the Constitution is directed against two orders, one passed by the Regional Transport Authority, Indore (respondent 3) on 30/31st January, 1958, whereby a stage carriage permit for Indore-Julwania-Barwani route was granted to phoolchand (respondent 1) in preference to other claimants including Nazirbhai (petitioner), and the other passed by the State Transport Appellate Authority (respondent 2) on 31st May, 1961, by which the appeal filed by two of the rival claimants and an objector was dismissed.

2. For a permit for the route there were as many as seven applicants many of whom also made representations against the rival claimants. In regard to the claim made by Nazirbhai the Regional Transport Authority observed:

'The applicant Nazirbhai Haji Chisabhai has two routes and a 1953 model spare passenger bus. The applicant should give to the public better transport facilities by paying special attention to the passenger buses running on Kannod-Nemawar and Indore-Sendhwa routes. His claim for this route appears to be inferior.'

About Phoolchand, that Authority said:

'The applicant phoolchand Jaiswal, Indore, is the remaining applicant for the route. At present the applicant is working in the capacity of manager of the passenger buses of Rajaram Biharilal, Jugalkishore Siddhanah and Pramilabai Mule on Indore-Chambal and Indore-Dhar routes. He himself is a driver. From time to time the applicant has run spare passenger buses on temporary permits. Thus the applicant has full knowledge of this business. The applicant had been continuously applying for permits for different routes but his applications were not accepted. Regarding applicant Phoolchand Munnalal Jaiswal other applicants raised the objection that he carried on the business of purchase and sale of passenger vehicles. About this a chart was also filed. The applicant had a 1953 model passenger bus, MBY 1590. Thereafter he had a 1954 model bus, MBK 1237. These passenger vehicles were sold by the applicant. For these passenger vehicles, the applicant had made applications for different routes but they were not accepted by the Regional Transport Authority, Every time the applicant offered before the Regional Transport Authority a passenger vehicle of good model but having not obtained permission, he had to sell it to other businessmen. Other applicants also have to adopt the same course. Therefore, the objection that the applicant carries on the business of purchase and sale of passenger vehicles does not appear to be correct, Today the applicant has a passenger vehicle MBK 4311 of 1957 model. That passenger vehicle is in a better condition than the spare passenger vehicles with other applicants and the seats are more comfortable for the passengers. The applicant has been continuously making applications for various routes. In our judgment, the applicant Phoolchand Jaiswal appears to be the best for this route.'

Accepting the reasons given by the Regional Transport Authority for selecting Phoolchand and giving some other reasons for preferring him, the State Transport Appellate Authority concluded as follows;

'After taking an overall picture of the claims of the rival claimants in this case I do not think that the Regional Transport Authority was wrong in any way in granting permit to respondent No. 2. Having regard To all the circumstances of the case, I feel that the selection of respondent No. 2 in preference to other appellants was quite justified and was not in any way improper.'

3. The petitioner has challenged the two orders of the Transport Authorities on these grounds. They took into account extraneous and irrelevant considerations. They also omitted to have regard to the matters which they were bound to consider under Section 47 of the Motor Vehicles Act, 1939. Further, the State Transport Appellate Authority misconstrued one of the reasons given by the Regional Transport Authority.

4. According to Shri K.A. Chitale the Regional Transport Authority merely observed that the petitioner, who was operating two routes, already had sufficient business in hand and he should endeavour to improve the transport facilities provided by him on those routes, but the State Transport Appellate Authority misconstruing is held that the petitioner did not operate the routes efficiently by giving proper transport facilities and that this by itself was a sufficient ground for rejecting his claim for a permit for the route. The learned counsel also made the point that if the observations implied any defect or fault attributable to the petitioner, there was a denial of natural justice in that it was not disclosed to him and he had no opportunity of controverting it.

We do not propose to enter into the controversy about the true meaning of the somewhat equivocal observations made by the Regional Transport Authority concerning the petitioner. In our opinion, the observations, regarded in a sense most favourable to the petitioner mean at least this. There was scope for improvement in the services rendered on the two routes worked by him and, if another permit were given to him, not only it would come in the way of the desired improvement on those routes but the service on the third route was also unlikely to be Better. It is hardly necessary to point out that, having regard to the interests of the public generally which the Transport Authorities were bound to take info consideration, this was relevant to the matter in question.

5. It is next urged that the Transport Authorities omitted to consider the previous experience of Nazirbhai and, in disregard of Phoolchand's want of such experience, granted him a permit for the route when by reason of the fact that Nazirbhai was already operating on a part of the route, they were bound to record preference in his favour, it is not that the operation by Nazirbhai of other transport services was ignored. Indeed it was expressly mentioned, though in the circumstances of his case, it was regarded to be a detracting consideration.

So far as Phoolchand is concerned it has to be considered in some detail because it was alleged that he was a new-comer having no experience of the business. In this connection, it was urged that, on previous occasions, the claims of Phoolchand for a permit were thrown out on the ground of his inexperience. It is sufficient to say that each order, when it comes up, has to be examined on its own merits. It may well be that the earlier orders may be wrong or that Phoolchand did not place before the Transport Authorities sufficient material to establish his previous experience of the business : Sri Rama Vilas Service (Private) Ltd. v. Ratnan and Raman (Private) Ltd., ILR (1959) Mad 641 : (AIR 1959 Mad 492). So far as the inference, in favour of Phoolchand's experience on the materials placed before the Transport Authorities is concerned, it cannot, even if erroneous, be assailed in these proceedings. In Nargendra Nath Bora v. Commissioner of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398) the Supreme Court observed:

'If at all they are errors, they are errors in appreciation of documentary evidence or affidavits, errors in drawing inferences or omission to draw inferences. In other words, those are errors which a court sitting as a Court of appeal only, could have examined and, if necessary, corrected.'

We applied this principle in Milandas v. State Transport Appellate Authority, M. P. No. 212 of 1960, D/- 17-8-1961 (M. P.). We consider it sufficient to say that we cannot allow proceedings in certiorari to assume the cloak of an appeal in disguise and we have, in fact, no jurisdiction so to do.

6. The contention that because Nazirbhai was operating on a part of the route, the Transport Authorities were bound to record preference in his favour is, we think, not well-founded. Section 47 of the Act enumerates matters to which regard must be had in considering competitive claims of several persons for a permit for a giver route. That section does not lay down that the operation by an applicant of other transport services on the route or a portion of the route must override other considerations. In fact the section does not prescribe rules for selection, the only guide being whet would be in the interests of the public generally. Our attention was however drawn to the observations we made in Amirbhai v. Hotchand, MP No. 2 of 1960, D/-18-10-1960 (M.P.). This is what we said there ;

'Now, in deciding the conflicting claims of these two persons, the Regional Transport Authority was brand to take into consideration the interest of the public generally and if it regarded Hotchand's previous experience of operating on a part of the same route as likely to better serve the interest of the public, it cannot be said that the consideration was irrelevant or extraneous for the reason that it could have no bearing on the question.'

We were also referred to M. Ramayya v. State of Andhra, AIR 1956 Andhra 217. Relying upon an earlier Madras case, their Lordships observed:

'We consider that the fact that the respondent is an existing operator in respect of a partof the route in question is not an extraneous orirrelevant consideration.'

We did not say in Amirbhai's case M. P. No 2 of 1980, D/- 18-10-1960 (M. P.) (supra), that this was an overriding consideration. We merely indicated that it was a relevant consideration and that, in a given case, it was open to the Transport Authorities to regard it, along with other matters, as tilting the balance in favour of a particular claimant. It was said that our obsrvations in Amirbhai's case, M. P No. 2 of 1960 D/- 18-10-1960 (MP) have led the Transport Authorities to think that the operation on a part of the route entitles a claimant to preference. It so, we must correct that erroneous impression, It is for the Transport Authorities themselves to decide, with due regard to the matters mentioned in section 47 and other relevant considerations which of the competing claimants would best serve the public interest generally. For a given set of claimants, it is open to them to prefer one who is also an existing operator on a part of the route. On the other hand, in another case like the one before us, they may regard that matter to be outweighed by other relevant considerations.

7. Another point made in support of the petition is that the State Transport Appellate AUthority was not justified in allowing Phoolchand to raise for the first time during the hearing of the appeal the contention that Nazirbhai's drivers and conductors were convicted. If was also urged that, in the absence of any evidence to show that Nazirbhai had consented to, or connived at, tile overloading, the matter was really extraneous and irrelevant and that, in any event, it could not be taken into account without examining the attending circumstances.

As pointed out by the Supreme Court in Raman and Raman Ltd. v. State of Madras, 1956 SCR 256 : (AIR 1956 SC 463), the Transport Authorities constituted under the Motor Vehicles Act, 1939, perform executive or administrative Functions though, in discharging those functions, they have to act in a quasi-judicial manner. That being so, when and so long as applications made for a permit are pending, whether before the Regional Transport Authority or in appeal, we are of the view that considerations relevant to the question can be taken into account. Section 47 of the Act is not exhaustive of the matters required to be considered in granting permits and other matters not unrelated and germane to the subject can be taken info account:

National Transport Co. v. State Transport Authority, M. P. Gwalior, AIR 1959 Madh-Pra 320. Whether or not a service is being operated in accordance with the conditions contained is a permit is not an extraneous consideration. It will be seen that when a bus is overloaded in contravention of the condition, in the permit, the penalty of cancellation or suspension prescribed by Section 60 (1) (a) of the Act is attracted.

In our opinion, the convictions recorded for overloading a bus operated by Nazirbhai were relevant for judging whether he was a suitable person for the grant of a permit,

8. It is, however, urged that there was a denial of natural justice because Nazirbhai was not given an opportunity to controvert the evidence produced at the hearing of the appeal and, in particular, to show that, having regard to the attending circumstances he could not be regarded as blameworthy. In the first place, Nazirbhai accepted the convictions of his driver and conductor which were relied upon by the State Transport Appellate Authority. Secondly, Nazirbhai neither explained, nor asked for an opportunity to show that the overloading of his bus took place in unusual circumstances for which he could not justly be blamed. As pointed out in New Prakash Transport Co., Ltd. v. New Suwarna Transport Co., Ltd., 1957 SCR 98 : ((S) AIR 1957 SC 232), the Appellate Authority was not obliged to grant an adjournment suo motu without any application on behalf of the party interested. That being so, even this ground is of no avail.

9. The learned counsel for Nazirbhai found fault with the order of the Appellate Authority on one other ground. It was urged that, although the failure of Nazirbhai to object to the renewal of the permit granted to Phoolchand for this route was not a relevant consideration, it was taken into account in upholding the order made in his favour. It is true that when the grant of a permit is set aside, the renewal thereof also stands automatically set aside: V. C. K. Bus Service Ltd. v. Regional Transport Authority, 1957 SCR 663 : ( (S) AIR 1957 SC 489). But, we think, the Appellate Authority referred to the renewal without objection only to lay stress on the clear record of Phoolchand as an operator against the not unblemished record of Nazirbhai which to 'some extent' weighed against his claim. In taking that view, the Appellate Authority recalled the following observations it had made earlier in another case:

'It is on record that the permit of respondent has been renewed and it was not stated before us that this renewal was objected to by the present appellant ........ In the absence of any allegations of his convictions ever since the grant of the permit to him, we can safely presume that he has been running efficiently on the route. These facts may not be strictly relevant so far as the merits of the impugned order are concerned, but they do indicate that the respondent has, in fact, been able to run the service efficiently as expected by the R T A'

10. As shown, the orders impugned are not vitiated by extraneous or irrelevant considerations or want of judicial approach. It would also appear that, in considering the competing claims of Nazirbhai and Phoolchand for a permit for the route, the Transport Authorities did have regard to the matters mentioned, in section 47 of the Act. It may be that, in the orders passed by them they did not compactly summarise all the considerations for and against each claimant to bring out dearly the grounds of their preference, but their failure or inability so to do is not a ground for interference by means of a writ of certiorari. They alone had to consider and decide which of the rival claimants was, having regard to the interest of the public generally, better fitted for the grant of a permit for the route. The State Transport Appellate Authority repeatedly stressed that, having regard to considerations relevant to the matter, it found the claim of Phoolchand superior to that of Nazirbhai. That being so, there is, in our opinion, no error of law or other grounds for interference.

11. In the view we have taken this petition fails and is dismissed. The petitioner shall bear his own costs and pay out of the security amount those of the respondent 1. The remaining amount of security shall be refunded. Hearing feeRs. 150/-.


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