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Gujarat State Road Transport Corporation Vs. Chetna Travel Service and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1986)1GLR110
AppellantGujarat State Road Transport Corporation
RespondentChetna Travel Service and ors.
Cases ReferredBajoy Krishna Bhattacharjee and Ors. v. The Regional Transport Authority
Excerpt:
.....- patel, the learned advocate for the respondents urged that section 50 which deals with contract carriage permit is silent on the point of notice whereas section 57 sub-clause (3) which deals with stage carriage permits specifically provides for a notice and when section 50 does not provide for any specific notice to be issued to the persons interested in making a representation nor raising an objection the impugned act of the authority cannot be considered to be violative of any statutory provision and even if it is so, if the authorities have not strictly conformed to the requirements of the section or have failed to follow the requisite procedure that by itself would not warrant any interference by the high court under article 226 or 227 of the constitution of india. patel's..........the case can be briefly narrated as under:respondent no. 1 in all the petitions held a particular contract carriage permit originally issued by the regional transport authority at baroda which is cited as respondent no. 2. subsequently, during the pendency of the said permit an application was given by respondent no. 1 to respondent no. 2 for extending he area of the validity of the said permit to other regions in the state of gujarat respondent no. 2 granted the said application. the orders of the said authority are produced at annexure-a in each petition.3. being aggrieved by the said decision, gujarat state transport corporation the petitioner in the present petitions filed appeals before respondent no. 3 which authority dismissed the said appeals. the main contention of the.....
Judgment:

D.C. Gheewda, J.

1. These seven petitions directed against the order of the State Transport Appellate Tribunal which is cited as respondent No. 3, though purported to have been filed under Article 226 of the Constitution are in fact petitions under Article 227 of the Constitution of India and seek to challenge the order of the said authority on numerous grounds.

2. The facts of the case can be briefly narrated as under:

Respondent No. 1 in all the petitions held a particular contract carriage permit originally issued by the Regional Transport Authority at Baroda which is cited as respondent No. 2. Subsequently, during the pendency of the said permit an application was given by respondent No. 1 to respondent No. 2 for extending he area of the validity of the said permit to other regions in the State of Gujarat Respondent No. 2 granted the said application. The orders of the said authority are produced at Annexure-A in each petition.

3. Being aggrieved by the said decision, Gujarat State Transport Corporation the petitioner in the present petitions filed appeals before respondent No. 3 which authority dismissed the said appeals. The main contention of the petitioner appears to be that respondent No. 3 had not complied with the procedural and substantive requirement as provided by the Statute, namely. Motor Vehicles Act and respondent No. 2 was guilty of a jurisdictional error and had no authority to extend the validity of the said permits. Being petitions under Article 227 of the Constitution of India, Mr. M.D. Pandya was conscious of the fact that unless jurisdictional error is pointed out or unless there is a mistake which is apparent on the face of the record of the case, the High Court in exercise of its jurisdiction under Article 227 of the Constitution, would be reluctant to interfere with the impugned orders. The main contention of Mr. Pandya is based on non-compliance with the provisions of the Statute, namely, Sections 45, 49, 50 and 51 and 57 of the M.V. Act. All these Sections are to be found in Chapter IV of 'the Motor Vehicles Act, hereinafter to be referred to as 'the Act' for the sake of brevity and is captioned as 'Control of Transport Vehicles. Section 45 deals with general provision as to applications for permits. In the instant case, respondent No. 1 was holding a contract carriage permit and a specific provision for application for a contract carriage permit is to be found in Section 49. Section 49 reads as under:

49. An application for a permit to use one or more motor vehicles as a contract carriage or carriages (in this Chapter referred to as a contract carriage permit) shall contain the following particulars, namely:

(a) the type and seating capacity of the vehicle or each of the vehicles;

(b) the area for which the permit is required;

(c) in the case of a motor vehicle other than a motor cab, the manner in which it is claimed that the public convenience will be served by the vehicle; and

(d) any other particulars which may be prescribed.

Section 50 deals with the procedure which the Regional Transport Authorities should follow while considering an application for contract carriage permits and it reads as under:

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 representations 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 or 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.

A plain reading of Section 50 of the Act shows that when an application for contract carriage permit is made to the authority, the authority has, to consider representations which may be then made or which may previously have been made by persons already holding contract carriage permits, the local authority and the police authority and after hearing these persons, it shall have to arrive at a decision as to whether the existing facilities are adequate or otherwise and as to whether under the circumstances, the contract carriage permit as prayed for requires to be granted. Regarding this particular phraseology of Section 50 and the procedure to be followed by the Regional Transport Authority, Mr. Pandya raised an objection that the very language of the Section contemplates a notice to be issued to the persons who are entitled to make representation and unless such notice is given an effective representation cannot be made by persons entitled to make such representation and in the instant case no such notice was given. Both the authorities seem to have brushed aside this particular objection on the ground that in the instant case no application for a new permit was made by respondent No. 1 but the application was only for an extention of permit. Secondly, it was also sought to be argued by Mr. J.P. Patel, for the respondent that the rules do not provide for giving of a notice in case of an application for a contract carriage permit, whereas specific provisions are to be found in case of permit for a stage carriage. In this behalf my attention was drawn to a decision reported in AIR 1968 Assam P. 55 Bhaba Kanta Bora v. The Appellate Board of State Transport Authority, Assam the Division Bench of the said High Court in the said decision was concerned with the legality of a grant of contract carriage permit without giving adequate notice to the parties interested in the matter and without hearing them. The learned Chief Justice speaking for the Bench observed as under:

An executive authority or an authority exercising some form of quasi judicial function may not strictly conform to the requirements of the section or follow the requisite procedure. But that by itself may not render the action of the authority totally void, or without jurisdiction or totally illegal, so as to call for the interference of the High Court under Article 226.

Another Member of the Bench Justice P.K. Goswami in para 8 of the judgment observed as under:

'While in the case of a stage carriage permit under Section 57(3) of the Act there is an obligation cast on the authorities granting a permit to make the application available far inspection by th epublic or people who are interested as also by publication in the official Gazette, there is no obligation for publication of an application for a contract carriage permit. Under Section 50 of the Act the authorities should take into consideration any representation which may then be made at the time of hearing 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 and if there is no provision made in the rules or in the Act for a prior publication of the application for a contract carriage permit, the people who are interested, will be in complete ignorance of any application for a contract carriage permit.' (Amendment of rules are therefore suggested).

Relying upon these observations, Mr. Patel, the learned advocate for the respondents urged that Section 50 which deals with contract carriage permit is silent on the point of notice whereas Section 57 Sub-clause (3) which deals with stage carriage permits specifically provides for a notice and when Section 50 does not provide for any specific notice to be issued to the persons interested in making a representation nor raising an objection the impugned Act of the authority cannot be considered to be violative of any statutory provision and even if it is so, if the authorities have not strictly conformed to the requirements of the Section or have failed to follow the requisite procedure that by itself would not warrant any interference by the High Court under Article 226 or 227 of the Constitution of India.

4. It may be noted that the Division Bench of the Assam High Court was also of the opinion that if there is no provision made in the rules or in the Act for a prior publication of application for contract carriage permits people who are interested will be in complete ignorance of an application of a contract carriage permit. They, therefore, suggested amendment of the rules. On the facts of the case, however, they were not tempted to interfere with the impugned order as interference with the said order would have resulted in depriving the new permit holder who was an ex-Service man, who was making an attempt to rehabilitate himself. However, it cannot be said that the Division Bench of the Assam High Court had dispensed with the requirement of the notice.

5. Another decision reported at 61 CWN P. 590 Bajoy Krishna Bhattacharjee and Ors. v. The Regional Transport Authority, Calcutta and Ors. rendered by the learned Single Judge of the said High Court was also concerning the procedural requirement of Section 50 of the M.V. Act and the learned Single Judge on the said case observed as under:

In the case of representation in respect, of the grant of a contract carriage permit no express provision has been laid down for giving notice. The giving of some kind of notice is, however, implied. The method by which such notice should be given is a matter which ought to be the subject matter of Rules framed under the Motor Vehicles Act, 1939. Since there are no such rules at present any rational method of giving notice would be sufficient.

6. Regarding phraseology of Section 50, the learned Single Judge observed at P. 595. Section 50 says that the Regional Transport Authority must take into consideration any representation 'which may then be made or which may previously have been made.' With regard to previous representations one can understand that there may be on record some kind of general protest irrespective of whether a particular application has been made or not, but when it speaks about a representation which may then be made it is contemplated that the interested parties should have been made aware of the making of an application for the grant of a new permit. The use of the word 'then' in the above extracted pharse definitely indicates that the representation may be made prior to an application for a contract carriage permit which may be a general sort of objection for granting of an additional permit to anybody but the word 'then' definitely indicates that persons entitled to raise an objection should be made conscious of the fact that such an application has been received and the date time and place, for hearing the objections, shall have to be fixed. Unless by some sort of notice the fact of receipt of an application, is brought to the notice of persons entitled to make a representation i.e. those who have a right to raise an objection, they would be left completely in the dark and if the Statute provides for hearing of an objection it should necessarily be construed that persons entitled to raise an objection should have notice of such an application against which they are entitled to raise an objection. Therefore, the learned Single Judge of the Calcutta High Court was constrained to observe as above and because the rules do not provide for a particular type of notice, some rational mode of notice will have to be devised by the authority concerned and the requirement of giving such notice shall have to be read in Section 50. The use of the word 'then' makes it abundantly clear that such a notice is definitely implied in the language of the Section itself. Mr. Patel's contention, therefore, that for a contract carriage permit, which is deal with in Section 50 no such notice is necessary, is clearly erroneous and it shall have to be held that the authorities, namely, respondent No. 2 was guilty of non-compliance with procedural requirement. The second contention of Mr. Pandya was that the authorities were guilty of non-compliance with the substantive requirements. According to Mr. Pandya, both respondents Nos. 2 and 3 were guilty of making a confusion between the contention raised and facts established. On behalf of the respondent No. 1 while applying for extension of a permit it was alleged that the passengers from Baroda region when they want to go to a distant part of Saurashtra aud other regions find difficulties in getting adequate transport facilities and hence extension of permit is necessary. Now Section 63(1) provides that a permit granted by the Regional Transport Authority of any one Region shall not be valid in any other region unless the permit has been countersigned by Regional Transport Authority of that other region. According to Mr. Pandya the region which was larger in the area, namely Rajkot Region would have authority or the State Transport Authority would have the powers to grant such a permit and respondent No. 2, namely Baroda R.T. Authority has no such powers to extend the permit. Section 63 as observed above, provides for countersignature and Section 63(3) lays down that provisions of Chapter relating to the grant, revocation and suspension of permits shall apply to the grant revocation and suspension of counter signatures of permits. There is a proviso added thereto that it shall not be necessary to follow the procedure laid down in Section 57 for the grant or counter-signature of permits where the permits granted in any one State are required to be countersigned by the State Transport Authority of another State or by the Regional Transport Authority concerned as a result of any agreement arrived at between the States. It was argued by both the respondents Nos. 2 and 3 that the Regional Transport Authority of all the regions through which respondent No. 1's contract carriage was to pass through on account of extension of 'the said permit had passed a resolution to that effect. Now it appears that no such resolution was placed on the record and at least Ahmedabad Regional Transport Authority was admittedly not a party to such a resolution, if ever one was passed, because that was conceded before the First Appellate Authority by the other side as well. The bus starting from Baroda and going to Rajkot would definitely have to pass through, the area of Ahmedabad Regional Transport Authority and if that Authority was not a party to such a resolution, respondent No. 2 could not have assumed that such a resolution was passed by all the Regional transport Authorities. It was not a party to such a resolution, respondent No. 2 could not have assumed that such a resolution was passed by all the Regional Transport Authorities. It was only a contention raised by respondent No. 1 but it was never a fact established.

7. To get over this particular difficulty, Mr. Patel drew my attention to a Rule 83 of the Bombay Motor Vehicle Rules, 1959. According to Mr. Patel that countersignature is dispensed with by Rule 83 and hence procedure pertaining to countersignature will fall through and hence the entire gamut of contentions raised by Mr. Pandya would not be applicable to a case where only extension of permit is prayed for. This contention to say the least is difficult to accept inasmuch as Rule 83(3) provides that the Regional Transport Authority may issue a permit having validity in any other region in accordance with any general or special resolution recorded by any other Regional Transport Authority and any permit so issued shall be of like effect in the region of the other Transport Authority as were issued by that Transport Authority. The argument of Mr. Patel, therefore, proceeds on the basis that such a resolution was recorded by the other Regional Transport Authorities which is factually not correct, it no such resolution was recorded then the said Transport authority or Regional authority having largest area through which the contract carriage of respondent No. 1 had to pass, would have an authority to grant extension of the permit which in this case admittedly was Rajkot region and hence also respondent No. 2 would have no authority to grant extension. Respondent No. 1 (Sic No. 2) could have granted extension only in case a resolution as Mr. Patel alleges was recorded by all the Regional Transport Authorities through whose area the contract carriage of respondent No. 1 was to pass pursuant to the extension of the permit. Thus, it appears that though giving of notice is implied in Section 50 of the Act, no such notice was given to the persons who were entitled to raise objection and hence the authority, namely, respondent No. 2 had deprived itself of the instructed judgment of those who could have thrown significant light on the circumstances as to whether the general public needs were adequately met or not, as to whether the extension of permit was likely to create any such traffic problem with which the condition of the roads could cope up with or as to whether the traffic problem which would be created thereby would be effectively met with by the police. For want of such notice, data which was material for arriving at a subjective satisfaction was totally lacking and in that view of the matter the order passed without any such notice which should be read in Section 50 as observed above, the order of extending permit would be bad. Secondly, for want of a general or special resolution by all the Regional Authorities through whose area the vehicles of respondent No. 1 were to pass pursuant to the said extension of the permit having not been placed on the record, the authority concerned was not correct in assuming that such a resolution was passed, and if such a resolution was not passed, then respondent No. 2 was not competent to decide the said application of respondent No. 1. In that view of the matter, all the contentions raised by Mr. Pandya shall have to be accepted. But the matter is only of an academic importance so far as the subject matter of the present petition is concerned because the extension of permit was granted in the year 1978 and it was for a period of three years. The matters came to be heard in 1985 by which time those permits had already exhausted its life span and hence only relief which can be granted to the petitioner would be that in case such an application for extension of permit is made by the respondents of any of these petitions at any future point of time some sort of notice to persons interested in making a representation shall be given by respondent No. 2 and the extension of permit shall not be mechanically granted assuming that the resolution by the Regional Transport Authorities concerned was passed unless there is a material on record to come to said conclusion.

8. Rule is made absolute to the above extent. However, there shall be no orders as to costs.


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