D.K. Mahajan, J.
1. This Full Bench has been constituted to determine the following questions:--
'Whether it is necessary in view of the provisions of Section 47, 50 and 55 of the Motor Vehicles Act (hereinafter referred to as Act) to issue notice and hear any representations made by persons already providing transport facilities in the proposed area or near the proposed route before the Authority can issue a temporary permit under Section 62 of the Act?
2. Three cases were placed before me and Sandhawalia, J. for disposal, they being :
1. Letters Patent Appeal No. 122 of 1969;
2. Letters Patent Appeal No. 185 of 1968; and
3. Civil Writ No. 1386 of 1969.
It was represented at the hearing that only one point arose in all these three cases. For the appellants in L.P.A. Nos. 122 of 1969 and 185 of 1968, and for the respondent in Civil Writ No. 1386 of 1969, it was contended that the view taken against them by the learned Single Judges in the two Letters Patent Appeals was erroneous. The learned counsel for the respondents in the Letters Patent Appeals and the petitioner in Civil Writ 1386 of 1969, on the other hand, contended that, that view was correct and more so when it was based on the Full Bench decision in Ambala Ex-servicemen Transport Co-operative Society Ltd. v. State of Punjab, ILR (1958) Punj 1590=(1959 Punj 1 FB).
3. As we had our doubts as to the correctness of the view taken by the learned Judges in Single Bench, we decided to refer the matter to a larger Bench and that is how this Bench has been constituted.
4. It is not necessary to state the facts for it is common ground that only the question which we have now formulated arises. The matters are otherwise infructuous as the period of four months for which the temporary permits were issued has already run out. In any case, the other contentions that were raised in these cases were not disposed of by the learned Judges whose orders are under appeal. They will in any case have to be disposed of after the answer to the proposed question is given. It is maintained that though the periods of the permits have expired, the contentions raised have to be decided in view of the decision of the Supreme Court in M/s. Gandhara Transport Co. Ltd. v. State of Punjab, AIR 1964 SC 1245.
5. It will be worth mentioning that on the basis of Ambala Ex-servicemen Transport Co-operative Society's case, ILR (1958) Punj 1590=(AIR 1959 Punj 1 FB) already referred to, three learned Judges of this Court while sitting in Single Bench, took the view that it was necessary to issue a notice to all those who are likely to be affected by the intended grant of a temporary permit under Section 62 of the Act and who can make a representation under Section 47, 50 or 55 of the Act. These decisions are:--
1. Ambala Bus Syndicate (P) Ltd. v. State of Punjab (1968) 70 Pun LR 330, (P.C. Pandit, J.).
2. Patiala Bus Service Pvt. Ltd. v. Regional Transport Authority, Patiala, (1968) 70 Pun LR 585 (Tek Chand, J.), and
3. The Prem Bus Service (Private) Ltd. v. Regional Transport Authority, (1968) 70 Pun LR 613=(AIR 1968 Punj 344) (R.S. Narula J.)
The correctness of these decisions is also challenged.
6. Before I proceed to examine the matter in controversy, it will be proper to briefly go through the scheme of the Act with regard to the grant of regular permits and temporary permits. Section 2(20) defines a 'permit'. Section 2(18) defines the 'motor vehicle'. Ss. 2(3), 2(22), 2(23) and 2(29) define 'contract carriage', 'private carrier', 'public carrier' and 'stage carriage' respectively. 'Public Service vehicle' is defined in Section 2(25) as under:--
' 'Public service vehicle' means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes the motor cab contract carriage, and stage carriage'. The provisions dealing with the grant of regular and temporary permits are contained in Chapter IV. This Chapter starts with Section 42 and the scheme of this Chapter with which we are concerned, is that Sections 42 to 45 deal with general provisions, whereas Sections 46 to 48 specifically deal with 'stage carriage permit'. Sections 49 to 51 deal with 'contract carriage permit', Sections 52 and 53 deal with 'private carrier's permit' and Sections 54 to 56 deal with 'public carrier's permit'. Procedure to be followed while granting these permits on a regular basis is provided in Section 57. This provision is then followed by Section 62 which deals with the grant of temporary permits. Section 62 specifically excludes the procedure prescribed in S.57 in the matter of grant of temporary permits.
7. For facility of reference and to understand the respective contentions, it is only necessary to set out the relevant parts of Section 47, re: the procedure regarding the consideration of application for stage carriage permit. The procedure with regard to the other types of permits is more or less analogous and reference need only be made to Section 50, re: contract carriage permits and Section 55, re: public carrier's permits. There is no such analogous provision regarding private carrier's permits and obviously so because there is no question of competition between the private carriers, they being engaged only in their private business:--
'Section 47(1) A Regional Transport Authority shall, in considering an application for 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 passengers 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 passengers 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:
X X X X'
'S.50. A Regional Transport Authority shall, in considering an application for a contract carriage permit, have regard to the extent to which additional contract carriages may be necessary or desirable in the public interest; and shall also take into consideration any representation which may then be made or which may previously have been made by persons already holding contract carriage permits in the region or by any local authority or police authority in the region to the effect that the number of contract carriages for which permits have already been granted is sufficient for or in excess of the needs of the region or any area within the region'.
'Section 55(1) A Regional Transport Authority shall, in considering an application for a public carrier's permit, have regard to the following matters, namely--
(a) the interest of the public generally;
(b) the advantages to the public of the service to be provided and the convenience afforded to the public by the provision of such service and the saving of time likely to be effected thereby;
(c) the adequacy of other goods services operating or likely to operate in the near future, whether by road or other means, between the places to be served;
(d) the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending;
(e) the benefit to any particular locality or localities likely to be afforded by the service;
(f) the condition of the roads included in the proposed area or route
(g) the nature of the goods to be carried with special reference to any of a fragile or perishable nature;
(h) the volume of traffic and the existence of marketing centres in the proposed area or along or near the proposed route;
and shall also take into consideration any representations made by persons already providing goods transport facilities by any means, whether by road or otherwise, in the proposed area or along or near the proposed route, or by any local authority or police authority within whose jurisdiction any part of the proposed area or route lies:
X X X X'
7-A. The only other provisions which are relevant and need be noticed are Sections 57 and 62 of the Act:--
'Section 57(1) An application for a contract carriage permit or a private carrier's permit may be made at any time.
(2) An application for a stage carriage permit or a public carrier's permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, or, if the Regional Transport Authority appoints dates for the receipt of such applications, on such dates.
(3) On receipt of an application for 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 :
Provided that, if the grant of any permit in accordance with the application or with modification would have the effect of increasing the number of vehicles operating in the region, or in any area or on any route within the region, under the class of permits to which the application relates, beyond the limit fixed in that behalf under sub-section (3) of Section 47 or sub-section (2) of Section 55, as the case may be, the Regional Transport Authority may summarily refuse the application without following the procedure lay down in this sub-section. (4) No representation in connection with an application referred to in sub-section (3) shall be considered by the Regional Transport Authority unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the person making such representation.
(5) When any representation such as is referred to in sub-section (3) is made, the Regional Transport Authority shall dispose of the application at a public hearing at which the applicant and the person making the representation shall have an opportunity of being heard either in person or by a duly authorised representative.
(6) When any representation has been made by the persons or authorities referred to in Section 50 to the effect that the number of contract carriages for which permits have already been granted in any region or any area within a region is sufficient for or in excess of the needs of the region or of such area, whether such representation is made in connection with a particular application for the grant of a contract carriage permit or otherwise, the Regional Transport Authority may take any such steps as it considers appropriate for the hearing of the representation in the presence of any persons likely to be affected thereby.
(7) When a Regional Transport Authority refuses an application for a permit of any kind, it shall give to the applicant in writing its reasons for the refusal.
(8) An application to vary the conditions of any permit, other than a temporary of any permit, other than a temporary permit by the inclusion of a new route or routes or a new area or, in the case of a stage-carriage permit, by increasing the number of trips above the specified maximum or by altering the route covered by it, or in the case of a contract carriage permit or a public carrier's permit, by increasing the number of vehicles covered by the permit shall be treated as an application for the grant of a new permit :
Provided that it shall not be necessary so to treat an application made by the holder of a stage carriage permit who provides the only service on any route or in any area to increase the frequency of the service so provided, without any increase in the number of vehicles. (9) A Regional Transport Authority may, before such date as may be specified by it in this behalf, replace any stage carriage permit, contract carriage permit or public carrier's permit granted by it before the said date by a fresh permit conforming to the provisions of Section 48 or Section 51 or Section 56, as the case may be, and the fresh permit shall be valid for the same route or routes or the same area for which the replaced permit was valid:
Provided that no condition other than a condition which was already attached to the replaced permit or which could have been attached thereto under the law in force when that permit was granted shall be attached to the fresh permit except with the consent in writing of the holder of the permit. (10) Notwithstanding anything contained in Section 58, a permit issued under the provisions of sub-section (9) shall be effected without renewal for the remainder of the period during which the replaced permit would have been so effective.'
'Section 62(1). A Regional Transport Authority may without following the procedure lay 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 a 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 condition it thinks fit :
Provided that a temporary permit under this section shall, in no case, be granted in respect of any route or area specified in an application for the grant of a new permit under Section 46 or Section 54 during the pendency of the application:
Provided further that a temporary permit under this section shall, in no case, be granted more than once in respect of any route or area specified in an application for the renewal of a permit during the pendency of such application for renewal.
(2) Notwithstanding anything contained in sub-section (1) a temporary permit may be granted thereunder in respect of any route or area where--
(i) no permit could be issued under Section 48 or Section 51 or Section 54 in respect of that route or area by reason of an order of a court or other competent authority restraining the issue of the same, for a period not exceeding the period for which the issue of the permit has been so restrained; or
(ii) as a result of the suspension by a court or other competent authority of the permit of any vehicle in respect of that route or area, there is no transport vehicle of the same class with a valid permit in respect of that route or area, or there is no adequate number of such vehicles in respect of that route or area, for a period not exceeding the period of such suspension: Providing that the number of transport vehicles in respect of which the temporary permit is so granted shall not exceed the number of vehicles in respect of which the issue of a permit has been restrained or as the case may be, the permit has been suspended.'
8. In Punjab by the Motor Vehicles (East Punjab Amendment) Act (Act No. 28 of 1948) clause (d) has been added to this section which reads thus:--
'(d) In such circumstances as may, in the opinion of such Authority, justify the grant of such permit.'
It may also be noticed that by the Central Act, the Motor Vehicles (Amendment) Act 100 of 1956, clause (d) was added by the Central Legislature. The said clause which was introduced by the Central Act 100 of 1956 has already been reproduced above alongwith the remaining part of Section 62.
9. It is apparent from the scheme of the Chapter and the provisions of Sections 47 to 56 read with Section 57, that notice is essential regarding all types of permits excepting the private carrier's permits. Section 57 makes it clear that on the receipt of an application for a permit, the Regional Transport Authority shall make the applications available for inspection at the office of the Authority. Not only that these applications have to be published, or in any case their substance, alongwith a notice of the date before which representations in connection therewith may be submitted has to be published. After the representations are received, the parties making the representations and the parties who have applied for the permit are heard and thereafter it is decided whether a permit is to be given or not. This procedure has been expressly excluded in the matter of grant of temporary permits by Section 62 in as much as it specifically states that the procedure lay down in Section 57 may not be followed. It does not, however, preclude the Authority from following the same if it thinks necessary to do so in a given case and where there is time to do so. But the question that has been debated before us is whether it is incumbent as a statutory requirement in every case on the authority to follow the procedure as to notice prescribed in Section 57 before a temporary permit is issued. It is contended that if no notice is issued, the purpose of the provision for representations in Sections 47, 50 and 55 will be defeated.
This contentions, though very attractive, on close examination is really fallacious. Temporary permits are granted for a temporary need. The temporary need can be urgent in certain circumstances while it may not be so in other circumstances. Cases can be visualised where, in the face of the temporary need, to follow the procedure prescribed in Section 57 will render the exercise of power under Section 62 impossible, thus defeating the very purpose of granting temporary permits while in other cases it may not be so. But as a matter of law, Section 62 makes it abundantly clear that the procedure prescribed in Section 57 may not be followed in the matter of grant of a temporary permit. It follows that the Authority can give a go-by to the requirements of notice which is essential so far as the grant of a regular permit is concerned. It cannot be said that in the matter of grant of a temporary permit, there is any statutory requirement as to the giving of notice to the persons mentioned in Sections 47, 50 and 55 of the Act before it can be granted.
10. Faced with this situation, the learned counsel for the respondents in the Letters Patent Appeals and the petitioner in Civil Writ 1386 of 1969 referred to Sections 42 to 45 of the Act and contended that these provisions do apply no matter whether the permit is temporary or regular. The learned Advocate-General, appearing on behalf of the State of Punjab, does not dispute this assertion. He, however, urges that these provisions do not in any manner, affect his contention that in the case of a temporary permit it is not necessary to issue a notice to the persons affected thereby before granting it. The learned counsel for the respondents in the Letters Patent Appeals and for the petitioner in the writ petition, on the other hand urge that only the procedure prescribed in Section 57 has been excluded by Section 62 in the matter of grant of temporary permits but not the provisions of Sections 47, 50 and 55 which provide for representations. It is, therefore contended that those provisions applied to temporary permits in as much as the word 'permit' used in these sections means both a regular permit and a temporary permit as has been held by the Full Bench in the Ambala Ex-Servicemen Transport Cooperative Society's case, ILR (1958) Punj 1590=(AIR 1959 Punj 1) (FB). Thus, it is maintained that it follows as a corollary that notice has to be issued before a temporary permit is granted because there can be no representation without a notice.
I am unable to accept this contention, the reason being that the scheme of the Act is that in the case of a temporary permit it is not necessary to issue any notice before its grant, to the persons who are likely to be affected thereby. Ss. 47, 50 and 55 talk of representations, but do not provide any mode of calling for those representations and dealing with them. That procedure has only been provided in S.57, and if that procedure is not to be followed in the case of a temporary permit, it follows that there is no question of issuing any notice or considering any representation against the grant of a temporary permit in every case. If, however, any person mentioned in Sections 47, 50 and 55 of the Act makes any representation before the grant of a temporary permit even when no notice is issued to him, it will be proper for the Authority to consider the same.
11. It appears to me that the correct way of looking at the matter is that by the exclusion of the procedure prescribed in Section 57, in the matter of grant of temporary permits, the other provisions specifically dealing with the grant of stage carriage, contract carriage and public carrier's permits, have also been excluded by necessary implication. These provisions are in three sets, Sections 46 to 48, Sections 49 to 51, and Sections 54 to 56. If the procedural machinery is taken away, what is provided to give effect to that machinery automatically would fall. I am, therefore, clearly of the view that no notice is required in the matter of grant of temporary permits to persons providing transport facilities by any means along or near the proposed route or area. My view finds support from the decision of the Supreme Court in AIR 1964 SC 1245, where it was observed as under:--
'Permits under S. 62 are undoubtedly intended to meet temporary needs of the nature specified in the section, and the formalities which are prescribed by S. 57 of the Act are not required to be followed before such permits are granted..............
Manifestly in dealing with applications for issue of temporary permits, regular permits, and renewal of regular permits different considerations come into play. A temporary permit may be issued to meet purely temporary needs. In considering the issue of regular permits an elaborate procedure has to be followed, including a hearing demanding a judicial consideration of the claims of individual applicants inter se, in the context of the wider interest of the general public: in considering an application for renewal of a permit, the authority has to afford to an existing operator a pre-emptive opportunity, if other conditions were equal.'
12. Another argument that was advanced by the learned counsel for the respondents in the two Letters Patent Appeals and the petitioner in Civil Writ No. 1386 of 1969, was that the Authority can, in the matter of grant of temporary permits, abuse its powers if it is held that no notice is necessary to be issued and no representations are to be considered. This is an argument of desperation. It is well settled that whenever any authority abuses its powers, the matter can be set right by proceedings under Article 226 of the Constitution of India by this Court. The fact that the power can be abused does not lead to the inference that the power is bad and should be bad struck down or that in the matter of grant of temporary permits a notice is necessary to be issued inviting representations from interested persons which have then to be considered.
12-A. I now proposed to deal with the Full Bench decision in Ambala Ex-Servicemen Transport Co-operative Society Ltd. v. State of Punjab, ILR (1958) Punj 1590=(AIR 1959 Punj 1)(FB) on the basis of which the two writ petitions giving rise to the Letters Patent Appeals, were allowed solely on the ground that the grant of the temporary permit was invalid because no notice had been issued to the persons providing transport facilities by any means along or near the proposed route or area before the grant of the same. In Civil Writ No. 1386 of 1969, the grant of a temporary permit has been assailed as void for the same reason. The Full Bench decision was infact considering a different matter. The main controversy before the Full Bench wherein certain observations were made on the basis of which it has held that the notice is necessary before a temporary permit is issued, was the contention that clause (d) of Section 62 introduced by the Punjab Legislature, gave uncontrolled and unrestricted power to the Authority in the matter of grant of temporary permits. The argument therefore, proceeded on the basis that clause (d) was void. It is in this context that Gosain, J., who spoke for the Full Bench, made the following observation :--
'this contention cannot, in my opinion, prevail for the simple reason that the power of issuing temporary permits is controlled by the provisions of Sections 55 and 56 of the Act and the Legislature has in the aforesaid provisions indicated the basis for the exercise of the same'.
The learned Judge then quoted Sections 55 and 56 and observed that:--
'Both these sections are applicable to public carrier's permits which may be granted on permanent basis or for a limited period under Section 62. All that Section 62 provides is that the procedure lay down in Section 57 shall not apply to the permits granted for a temporary period and the applicability of Sections 55 and 56 is not excluded by this Section 62. The matters which have to be taken into consideration while granting the public carrier's permits either permanently or temporarily and the limitations which have to be placed on them are provided for in the aforesaid two sections, and it cannot, therefore, be held that the power given to the Regional Transport Authority for issuing permits under Section 62 is an uncontrolled or unrestricted one'.
12-B. Undoubtedly, these observations can be said to lend support to the view that the provisions of Section 55 being applicable, the issuance of a notice before the grant of a temporary permit was a must but a careful reading of the judgment will show that the learned Judges did not lay down that proposition. The point that was for determination before the Full Bench and for which the provisions of Sections 55 and 56 were utilised was a totally different point and not the point with which we are concerned. The purpose for which the provisions of Sections 55 and 56 were utilised by the learned Judges was sustain the validity of clause (d) of Section 62 as inserted by the Punjab Act 28 of 1948. The question whether notice was required before issuance of a temporary permit was not the subject matter of determination. Thus, in the first place, these observations cannot be taken to lay down the rule that as a matter of law no temporary permit can be granted without issuance of a notice to persons providing transport facilities by any means along or near the proposed route or area. In the second place, if it is taken that these observations do lend support to the contentions that such a notice is necessary, unhesitatingly dissent from that view, with all respect to the learned Judges, as being contrary to the tenor and clear provisions of Section 62 of the Act.
13. However, in view of the above discussion, I may not be taken to lay down that the Authority is precluded in all cases from issuing a notice before granting a temporary permit or considering any representation that may be made as envisaged by the provisions of Sections 47, 50 and 55 of the Act. If there is no pressing urgency or temporary need and there is time to issue notice and hear representations, it will be always be expedient, proper and desirable to hear the persons affected before a temporary permit is granted. But as a matter of law it cannot be lay down that the issuance of a notice to the persons concerned is a must in all cases before a temporary permit is granted. That construction would infact defeat the very object of Section 62.
14. For the reasons recorded above, in my opinion, the only answer that can be given to the question formulated in the opening part of this judgment is as under:--
Since Section 62 of the Motor Vehicles Act, 1939, under which temporary permits are granted, expressly excludes the procedure prescribed in Section 57 of the Act, it must be held that the law does not require any notice to be issued to any party before granting the temporary permit. But this section does not preclude or forbid the Transport Authority from issuing a notice or considering representations, if any, are made by the interested parties. Considering, however, the fact that the proceedings relating to the grant of a permit are of quasi-judicial character and the same must be conducted in consonance with the rules of natural justice, which rules are not excluded by Section 62, in cases where the temporary need is not immediate or of a pressing urgent nature and there is time to hear the persons already providing transport facilities along or near the route or area for which the temporary permit is intended to issue, it is not only expedient but proper that a notice should be issued to such persons so as to afford them an opportunity of making representations and hearing for the consideration thereof, before the temporary permit is granted.
15. It is no doubt true that no specific point of law was referred to the Full Bench and all the three cases were sent to us for disposal, but parties are specific that the only question of law requiring determination in these cases is the one formulated by us and that on the basis of the answer to that question all the cases will get concluded. However, in order to eliminate all controversy, we direct that all these cases may be placed before a Division Bench for appropriate orders in the light of the observations made above and for such consequential orders as the Division Bench may deem fit to issue.
Gurdev Singh, J.
16. I agree.
R.S. Narula, J.
17. I concur.
Bal Raj Tuli, J.
18. I also agree.
B.S. Dhillon, J.
19. I also agree.
20. Reference answered