1. These are two connected writ applications by the same petitioners under Article 226 of the Constitution and arise out of the same facts. We, therefore, propose to dispose of them by a single judgment.
2. The petitioners are the existing operators on what were formerly two separate routes namely Sawai Madhopur-Bonli via Jastana and Sawai Madhopur Lalsot via Jastana, each of these routes being 42 miles long having a common route of 30 miles between Sawai Madhopur and Jastana. The position in 1956 was that of these petitioners, nine held stage carriage permits for Sawai Madhopur Lalsot route and two held permits for the Sawai Madhopur Bonli route. By its resolution No. 202 dated 12-4-1956 (Ex. 1), the Regional Transport Authority at the request of all the petitioners amalgamated these tworoutes temporarily, to start with, and thereafter as a permanent measure by its resolution No. 434 dated 24-8-1957 (Ex. 5) and regular permits tor this amalgamated route were granted to all the eleven petitioners.
It may be pointed out in this connection that the amalgamated routes were advertised and applications were invited and thereafter they were published on 13-9-1956, in the State Gazette. A few months earlier, respondent Kishore Sharan and two others applied to the Regional Transport Authority for grant of stage carriage permits on the Sawai Madhopur Bonli route via Khirni. It may be mentioned here that this route covered the pre-existing route of the petitioners for 18 miles from Sawai Madhopur to Bharoti and thence a diversion was to be made via Khirni to Bonli and this diversion runs over a distance of 16 miles.
This route was also advertised and in due course applications of the respondents Kishore Sharan and two others were published on 25-10-1956. These came up for consideration before the Regional Transport Authority, Jaipur, in January, 1957. The petitioners raised an objection against the grant of any fresh permits on the route via Khirni by their application dated 19-11-1956, saying that they were already providing service on the Bonli Sawai Madhopur route and that there was neither scope nor necessity for creating this new route and mat the proposed service would over-lap a considerable part of their route and so this route need not be opened and, in any case, if it was thought fit to start it, then the same may be allowed to be operated by them.
By their resolution No. 120/1957 dated the 21st/, 22-1-1957, the Regional Transport Authority decided that all the applications be rejected and that the operators of the Dausa-Bonli route and Sawai Madhopur-Bonli route be allowed to operate via Khirui. (Ex. 3). Ex. 4 is the time table which was provisionally chalked out by the Secretary of the Regional Transport Authority giving effect to this resolution.
3. The correct position, therefore, was that by the time resolution No. 434 dated 24-8-1957, came to be passed by the Regional Transport Authority amalgamating the two pre-existing routes, namely, Sawai Madhopur-Lalsot via Jastana and Sawai Madhopur-Bonli via Jastana, the Regional Transport Authority had in the meantime also decided by its resolution dated the 21st/22nd January, 1957 that the operators of Sawai Madhopur-Bonli route be allowed to operate via Khirni.
The respondent Kishore Sharan meanwhile went in appeal to the Appellate Tribunal against the last-mentioned resolution of the Regional Transport Authority dated the 21st/22nd January, 1957, and the appeal was actually filed on the 22nd March, 1957. This appeal was decided by the Appellate Tribunal by its order dated the 30th October, 1957 (Ex. 5), and it is this order which has been challenged by the petitioners in writ application No. 200 of 1957. By this order, the Appellate Tribunal set aside the decision of the Regional Transport Authority contained in its resolution No. 120 dated the 21st/22nd January, 1957, and thereby the permission accorded to the petitioners to operate their pre-existing routes via Khirni was cancelled and the appellant was granted a permit on the Sawai Madhopur-Bonli route via Khirni.
The ratio of the decision of the Appellate Tribunal was that the operators of the Sawai Madhopur-Bonli and Dausa-Bonli routes had never applied for the grant of any permits on the Sawai Madhopur-Bonli via Khirni route, and that the last-men-tioned route was not a mere variation of the preexisting route. The Tribunal placed its reliance on a decision of the Calcutta High Court in Barrack-pore Bus Syndicate v. Serajuddin, AIR 1957 Cal 444 and further held that even if what was done by the Regional Transport Authority was a variation in the conditions attached to the permits of the petitioners, it virtually amounted to the grant of a permit on a fresh route, and, therefore, it was incumbent upon the authorities to follow the procedure laid down in Section 57 of the Act and the relative rules, and as that had not been done by the Regional Transport Authority, the variation sanctioned in favour of the petitioners was unlawful.
4. In order to complete the narration of events, it is further necessary to mention that the Regional Transport Officer on behalf of the Regional Transport Authority passed an order on the 22nd January, 1958, restraining the petitioners from operating on the Sawai Madhopur-Bonli route via Khirni tEx. 7). By this order, the Secretary of the Regional Transport Authority informed the petitioners that they had been allowed to ply their buses on the Sawai Madhopur-Bonli route via Khimi by the Regional Transport Authority under its resolution No. 120 dated the 21st/22nd January, 1957, but that resolution had been quashed by the Appellate Tribunal on appeal by the respondent Kishore Sharan, and, therefore, the petitioners should not henceforth operate the route via Khirni.
The petitioners represented to the Regional Transport Authority, that they had been allowed to operate the route via Khirni by virtue of the resolution of the Regional Transport Authority No. 434 dated 24-8-1957, and the permits for the amalgamated routes granted to them thereunder, and that cancellation of the resolution of the Regional Transport Authority No. 120 dated the 21st/22nd January, 1957, by the Appellate Tribunal did not and could not stand in the way of their operating on the route which was merely a part of the amalgamated route.
This representation did not find favour with the Regional Transport Authority with the result that the petitioners have been stopped from operating their routes via Khirni. The case of the petitioners is that the permits held by them for operating the amalgamated routes enure upto 25-9-1960, and that they are unaffected by the order of the Appellate Tribunal dated 31-10-1957, and, therefore, the Regional Transport Authority and the other respondents in writ petition No. 49 of 1958 acted in excess of their authority in stopping the petitioners from plying their stage carriages via Khirni.
It is, therefore, prayed that these respondents be directed not to interfere with the petitioners' right to ply their buses on the entire area covered by Lalsot-Bonli-Sawai Madhopur amalgamated route including the route between Sawai Madhopur-Bonli via Khirui. This is the subject-matter of writ No. 49 of 1958.
5. A number of points were raised before us on behalf of the petitioners but we consider it necessary to catalogue them here as, in our opinion, one of the points raised on their behalf goes to the very root of the whole case, and we shall, therefore, discuss this point first. That contention is that the order of the Appellate Tribunal dated 31-10-1957, is bad because the Tribunal had not issued any notice of this appeal to them nor granted to them, a fair and reasonable opportunity of being heard which it should have done in accordance with the principles of natural justice, particularly as it had passed an order to their detriment by cancelling the scope of their permits.
It was further submitted in this connection that petitioner No. 5 Bassarmal Assandas who lived in Jaipur had gone to the office of the State Transport Authority in connection with some other business on 80-10-1957, and accidentally came to know that the appeal of respondent Kishore Sharan had been tixed for hearing on the same day at 2 o' clock. Having come to know of this, he (Bassarmal Assandas) informed two other petitioners Nos. 4 and 6, namely, Kodumal and Gyanchand respectively, who also lived in Jaipur, in the matter.
They hurriedly engaged a counsel to put up appearance before the Appellate Tribunal. It is further submitted that it was contended before the Tribunal at the commencement of the hearing before it, that no intimation of the appeal had been given to the petitioners and that the appeal should no be heard. The Appellate Tribunal, however, was not willing to adjourn the case; but as counsel for the petitioners pressed his request for adjournment, it postponed the case only until the next day, and the case was taken up on 31-10-1957, and decided against the petitioners.
The contention is that the time allowed to the petitioners Nos. 4, 5 and 6 for the hearing of the appeal was hopelessly inadequate, and, in any case, so far as the other petitioners were concerned, they had never been served, and, therefore, the procedure adopted for the hearing of the appeal was utterly opposed to the principles of natural justice and should not be accepted as correct, and that this defect was sufficient to invalidate the order passed by the Tribunal.
6. This contention on the side of the respondents is sought to be met by a two-fold argument. Learned counsel for respondent Kishore Sharan argued that the petitioners had actual knowledge of the hearing of the appeal and that in any case petitioners Nos. 4, 5 and 6 had put in appearance at the hearing of the appeal and their counsel had argued their case before the Appellate Tribunal. It was further submitted in this connection that the petitioners as would appear from their own writ application had common office and the matter was of common interest to all the petitioners and that petitioners Nos. 4, 5 and 6 had wanted a day's adjournment only by an oral request and the same had been granted by the Tribunal, and the case was fixed tor the next day, namely, the 31st October, 1957.
It was also brought to our notice in this connection that the Vakalatnama which was tiled by Shri L. L. Sharma in the appeal before the Appellate Tribunal on 30-10-1957, was on behalf of the existing operators on the Bonli-Sawai Madhopur and Lalsot-Sawai Madhopur routes (vide Ex. D-15) and that petitioner No. 6 Gyanchand had many a time represented himself as the manager of the common office of the petitioners as would appear from Exs. 3, and D-16 and D-17. Ex. 3 is a certified copy of the resolution No. 120/57 of the Regional Transport Authority passed on the 21st/22nd January, 1957, which appears to have been obtained by the petitioner Gyanchand describing himself as Manager. Lalsot-Bonli-Sawai Madhopur route. Ex. D-16 is a copy of an application filed by Gyanchand on behalf of the petitioners to the Transport Officer, Jaipur Region, Jaipur, for grant of copies of their permits for the routes which had been amalgamated on 24-8-1957.
In this application also Gyanchand styled himself as Manager, Lalsot-Sawai Madhopur route. Ex. D-17 is also a certified copy of an application filed by the same Gyanchand describing himself as the Manager of the Lalsot-Sawai Madhopur-Bonli amalgamated routes to the Superintendent of Police against certain rival operators in the matter of their running their service, contrary to the time-table sanctioned. The question for decision in these circumstances is whether the petitioners had notice of the appeal according to law or had accepted notice thereof, and, therefore, the hearing of the appeal by the Appellate Tribunal was not opposed to any principles of natural justice.
7. On the other hand, it was argued by the learned Deputy Government Advocate appearing for the Tribunal that it was not at all incumbent upon the said Appellate Authority to intimate the date of hearing of the appeal to the petitioners as such a duty had not been laid upon it by law according to Section 64 of the Motor Vehicles Act (No. IV) of 1939 as amended or the Rules made thereunder. It was further submitted supporting the stand taken by respondent Kishore Sharan that the petitioners were clearly aware of the appeal and that the same had been adjourned at the request of their learned counsel and was decided after hearing both the parties, and no adjournment had been sought on that date and, therefore, the hearing of the appeal was proper and valid.
8. This last-mentioned contention at once raises a question of fundamental importance, namely, whether it is incumbent on the Appellate Authority to give notice of the hearing of an appeal before it to such persons whose interests may be affected by any order passed by it.
9. The provisions of law relative to appeals under the Act in question are contained in Section 64 and Rule 108 of the Rules made thereunder. The portion of Section 64 in so far as it is material for our present purposes may be reproduced as below:
'Any person aggrieved by .............. maywithin the prescribed time and in the prescribed manner, appeal to the prescribed authority who shall give such person and the original authority an opportunity of being heard'.
Rule 108, broadly speaking, then specifies the prescribed authority competent to hear appeals from the orders of a Regional Transport Authority and also specifies the time within which such appeal must be filed. In Sub-rule (b) it is further provided that upon receipt of an appeal in accordance with Sub-rule (a), the Appellate Authority may appoint a time and place for the hearing of the appeal so as to give the Regional Transport Authority and the appellant not less than thirty days' notice, apart from a provision for depositing a fee with which we are not concerned.
The contention on the side of the respondents, therefore, is that the Act and the Rules made thereunder which alone can be looked at for the procedure applicable to the hearing of such an appeal nowhere provide that a notice to any other person or persons including those whose rights may fall to be affected by the decision in the appeal is necessary and that the only two parties to whom notice may be given are (1) the appellant and (2) the Regional Transport Authority.
It was further contended in this connection that the policy of the Legislature appears to be that the Regional Transport Authority in all such matters represents the public interest to which all other interests must be subordinated, and, therefore, it is that the Legislature has in its wisdom provided for a notice to that Authority only apart from the appellant, and, consequently, it would not be right for the courts to introduce any further requirement into the law so as to require that notices must also go to the respondents or to persons holding competing interests likely to be affected by an adverse order passed in appeal the more so where such persons may not have, been arrayed as respondents in the appeal.
10. We have given our most careful and anxious consideration to this question and find ourselves unable to accept the submission made to us on behalf of the Appellate Tribunal, particularly in a case like this where the permits granted to the petitioners by the Regional Transport Authority were sought to be and indeed were cancelled by the Appellate Tribunal so far as the route via Khirni was concerned. The main reason which induces us to come to this conclusion is that the Appellate Authority is a quasi-judicial body, and it is required under the law to consider the various matters brought to it in appeal having regard to the provisions of the Act.
What we wish to emphasize in this connection is that the Tribunal must bring to bear on the matters brought up for its decision a judicial approach just as the Regional Transport Authority is required to do while granting or refusing permits having regard to the various provisions of the Act contained in Section 47 of the Act. It is correct that no elaborate procedure for preferring or hearing of appeals is provided, and so far ag the Act itself goes, Section 64 provides for a notice of appeal to be given to the appellant and to the Regional Transport Authority and stops short there.
The factor, however, that the approach ot the Tribunal is essentially judicial and not merely administrative, in our opinion, makes it incumbent upon it as soon as it becomes apparent to it that the right of any third person is likely to be or would be affected by any order made in the appeal and such duty at once arises, according to the fundamental principles of natural justice that, it must give notice to the person or persons who are likely to be so adversely affected by the decision in the appeal, before, it is finally decided. Thus in Maxwell on Interpretation of Statutes, Tenth Edition, at page 370, it is laid down that
'In giving judicial powers to affect prejudicially the rights of person or property, a statute is understood as silently implying, when it does not expressly provide, the condition or qualification that the power is to be exercised in accordance with the fundamental rules of judicial procedure, such for instance, as that which requires that, before its exercise, the person sought to be prejudicially affected shall have an opportunity of defending himself'.
The view which we have propounded above has found acceptance from a number of High Courts in our country, and to these decisions we shall now briefly refer.
11. In Bhatia Ghisalal v. E. T. Authority AIR 1952 Madh-B. 128 a permit granted to A was cancelled on an appeal preferred by F without any notice to A and without affording him any opportunity of being heard. It was held that this was improper and that it was pre-eminently a fit case in which the High Court should interfere to set right the wrong. It appears that in this case the learned Judges disposed of the point which arose before them on the assumption that the orders passed by the Appellate Authority in appeal were of an administrative nature. With all respect, this does not appear to us to be strictly accurate, because as we have pointed out above, the Appellate Tribunal when it decides appeals under the Motor Vehicles Act decides them as a quasi-judicial body and its approach in such cases is and must be essentially judicial.
12. In Natesa Pillai v. C.R.T. Board Egmore, Madras, AIR 1952 Mad. 39 the main question was whether the Central Road Traffic Board which was the appellate authority from the orders of the Regional Transport Authority could give to the ap-pellant any relief with respect to a matter which was not covered by the appeal and to the detriment of a person who was not made a party to that appeal. Subba Rao J. held that that could not bet done and that the order made by the Traffic Board was without jurisdiction and consequently a writ of Certiorari was granted.
13. In Mrs. Suprava Delb Roy v, State of Assam AIR 1953 Assam 157, it was held that the State Transport Authority under the Motor Vehicles Act, 1939, was a quasi-judicial body and that it had a judicial function to perform and that even if Section 64 of the Act did not expressly require that a person, to whom a permit had been granted, should be heard if his permit is to be cancelled, does not affect the obligation to observe principles of natural justice in proceedings before it, and, therefore, where. the Tribunal cancels such a permit and grants it to another person in his absence and without giving, him any hearing, it acts in excess of its jurisdiction.
14. Similarly? in Pankaj Kumar v. Commr. Rurdwan Divn. AIR 1953 Cal 587, it was held that though Section 64 did not expressly provide for any notice being given to any person other than, the appellant and the Transport Authority, a duty arose the moment it was intended to affect the right of any third person by any order made in the appeal to give notice to the persons affected in accordance with the principles of natural justice.
15. The same view has been upheld in B.W.M.T. Co. v. Chief Commr., AIR 1957 Punj 35.
16. The question which arose in Gobardhan, Joshi v. The State of Bihar, (S) AIR 1957 Pat 340 was slightly different, inasmuch as the contention there was that Section 64-A of the Motor Vehicles Act, 1939, as introduced therein by the Bihar Amendment Act (No. 27) of 1950 which gave power to the State Government to call for the record of proceedings, in Chapter IV and after examining such records to pass such orders as it thinks fit was unconstitutional as it created an unreasonable restriction on the right of freedom of trade granted to the citizens of India under Article 19(1) of the Constitution. This contention was repelled, and it was held that the power conferred by Section 64-A was a quasi-judicial power and was required to be exercised in accordance with the rules of natural justice even though that section did not lay down in itself any provision for a notice or an opportunity of hearing to be given to the parties concerned in the matter, and that every judicial and quasi-judicial power given to a person or body has necessarily to be exercised in accordance with the rules of natural justice, and, therefore, it has to be presumed that the rules of natural justice are inherently implied in all provisions of law creating such a power.
17. At this stage we may refer to Section 64-A as it has been introduced into the Act by Amendment Act No. 100 of 1956. This section makes a provision for revision to the State Transport Authority against the orders of a Regional Transport Authority wherein no appeal lies, and it is provided that where it appears to the State Transport Authority that the order made by the Regional Transport Authority is improper or illegal, the State Transport Authority may pass such order in relation to the case as it deems fit. There are two provisos to this section, the first one relates to limitation within which a revision has to be preferred, and it is the second proviso which is important for our purposes. That is in the following terms:
'Provided further that the State Transport Authority shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard.'
It seems to us an impossible proposition that whereas if a revision is filed against an order of the Regional Transport Authority to the State Transport Authority against which no appeal lies, the latter must give a reasonable opportunity of hearing to the person who may be prejudicially affected by the order of the State Transport Authority the intention of the Legislature is or ever could be that if an order of .the Regional Transport Authority can be appealed from to the Appellate Tribunal of the State Transport Authority, a reasonable opportunity of hearing need not be given to the party which may be prejudicially affected by any order to be passed by the Appellate Tribunal on such appeal. If we may say so without any disrespect, we find it utterly impossible for ourselves to impute any such irrational intention to the Legislature as a clear indication thereof is to be found at any rate at this date in the new provision which has been made under Section 64-A of the Act.
18. Our attention was drawn in this connection to the decision of their Lordships of the Supreme Court in New Prakash Transport Co., Ltd. v. New Suwarna Transport Co., Ltd., (S) AIR 1957 SC 232. and to the following observations of their Lordships at page 236 :
'.........it has got to be observed that thequestion whether the rules of natural justice have been observed in a particular case must itself be judged in the light of the constitution of the statutory body which has to function in accordance with the rules laid down by the legislature and in that sense the rules themselves must vary.'
The main question which arose in that case was whether the Appellate Authority was justified in using a report made by the police, when it had not been placed into the hands of the parties, it being found that the report did not contain any direct allegations against the contesting respondent, and, therefore, there was hardly anything therein which was required to be met. It was held by their Lordships that the fact that the Appellate Authority had read out the contents of the report was sufficient compliance with the rules or natural justice. In this view of the matter, the judgment of the bench of the High Court was reversed and that of the learned single Judge restored.
We have given our respectful consideration to this case and are of opinion that it contains nothing which affects the opinion we have formed above. It is true that the question whether the rules of natural justice have been observed in a particular case should be judged in the light of the Constitution of the statutory body which has to function in accordance with the rules laid down by the Legislature and in that sense the rules themselves must vary. Nevertheless, if we may say so, with great respect we have ourselves examined the contention raised before us by this test as the tore-going discussion would show particularly with reference to Section 64A of the Act as amended, and we have hardly any doubt that if there is one principle cf natural justice which is more well established than any other, it is this that an appellate authority or tribunal which is required under the statute to dispose of matters coming before it in a quasi-judicial manner cannot with propriety be allowed to dispose of such matters and pass orders to the detriment of certain persons without giving them a notice of the filing of the appeal before it or without giving them a reasonable opportunity of being heard.
19. Lastly, we may refer to a case of our own Court reported as Automobile Transport Ltd. v. Nathuram. AIR 1959 Raj 121. The facts in this case were that the Ajmer State TransportAuthority at its meeting held on 25-2-1956, decided to increase the number of buses operating on the Ajmer Beawar Route from 14 to 17. Applications were invited for the grant of the three additional permits by a notification published in the State Gazette under Section 57 of the Act. A number of applications were received though no one filed any objection that the existing number or permits issued for the route were sufficient ior the needs of the public. Permits were granted to three persons and the rest of the applications were rejected.
Some of the persons whose applications were rejected filed an appeal which was heard by the Minister ior Transport. He gave permits for five more buses along this route. Against this order, a writ application was filed in this Court and the same order was later issued as an order of the Government. It was held that when an application for the grant of a permit is made under Section 46 of the Act, what the Regional Transport Authority is bound to consider is whether it would be against public interest to grant it, and that if it finds that it will not be against public interest to grant It, then the Authority is bound to allow the application in view of the constitutional guarantee provided under Article 19(1)(f) of the Constitution.
If the permit is refused, an appeal is provided for against such an order under Section 64 of the Act. It was also observed that when an application for a permit is made and published, it is open to the public at large including the existing operators to make a representation against the grant thereof, and if the representation is rejected, it is further open to such a person to file an appeal under Section 64 (f)'. What the learned Judges then said was this :
'If however the representation is allowed and the application for grant of a permit is rejected, the applicant can prefer an appeal under Section 64 (a). In (his appeal the person making the representation has no right of being heard. This is as should be..,--....... But the Legislature has notthought it proper to enact that persons who have opposed the grant of the permit before the Regional Transport Authority successfully should be heard by the Appellate Authority. All that the Legislature has thought fit to enact is that the Regional Transport Authority shall be heard by the Appellate Authority. No existing operator has any vested right to prevent others from plying their buses on the same route.'
It is contended on the strength of the observations made above that it was not necessary for the Appellate Tribunal to have given any notice to the present petitioners, and that it was enough for it to hear the Regional Transport Authority in the matter. We consider it enough to point out, so far as the purposes of the present writ applications are concerned, that that case is clearly distinguishable from the one we have before us on facts
In the case before us, the permits of the petitioners or rather their scope as extended by the Regional Transport Authority by its resolution No. 120 dated the 21st/22nd January, 1957, was cancelled, and this was certainly a matter which directly affected the petitioners, and, therefore, there can be no question, in our opinion, that they were entitled to be beard before any prejudicial order against them could be passed by the Appellate Tribunal on the principles of natural justice as we have discussed above and the decision ot this Court in the Automobile Transport Ltd. v. Nathuram, AIR 1959 Raj 121, does not have any real bearing on the present case.
20. From the aforesaid review of the legal position, we hold that the correct view is and must be that before the Appellate Tribunal exercising its functions under Section 64 of the Motor Vehicles Act passes any order prejudicially attecting the interests ot any existing permit-holder, it must give notice of the hearing ot the appeal before it to the latter person and in any case give him a reasonable opportunity of being heard. This fundamental principle ot natural Justice which is pithily summed up in the maxim audi alteram partem is So firmly rooted in English jurisprudence and in our own that the superior courts are anxiously zealous to enforce this basic requirement ot procedure and look upon its breach with marked disfavour and are in duty-bound to intervene where such a breach has occurred.
Where, therefore, an appellate authority goes on to pass an order to the detriment ot another person without a fair or reasonable opportunity of hearing having been granted to him, it clearly over-steps its proper bounds in passing such an order, and a writ of Certiorari is doubtless attracted and is unquestionably the right remedy to apply. We hold accordingly.
21. This brings us to the next contention raised on behalf of, the respondents that the petitioners had as a matter of fact been afforded a fair and reasonable opportunity ot hearing in the appeal tiled by respondent Kishore Sharan. It is important to point out at the very outset that the said respondent did not implead the petitioners as respondents to the appeal in question. In our opinion, this was extremely improper. That notwithstanding, the Appellate Tribunal by its order dated 9-4-1957, directed the Regional Transport Authority, Jaipur, to intimate to it the addresses of the, respondents within a week.
It is easy enough to infer from this that the Appellate Tribunal itself thought that the existing permit holders should get notice of the appeal. There is nothing to show on the record of the Appellate Tribunal that these notices were ever issued much less served on the petitioners. The reply filed by the Regional Transport Officer, Jaipur Region, Jaipur, on behalf of the Appellate Tribunal and the Regional Transport Authority also does not show that such notices were at all issued, or, if issued, had been served on the petitioners. All that is then said is that the petitioners were clearly aware of the appeal which had been filed by the respondent Kishore Sharan and that the hearing of this appeal was adjourned at the request of the advocate tor the petitioners and was decided after hearing both the parties by the Appellate Authority.
In para 13 of his reply Kishore Sharan has him self admitted that the addresses of the present petitioners having not been furnished by the Regional Transport Authority as required by the Appellate Tribunal, the Secretary, State Transport Authority, again sent a letter dated 21-9-1957, to the Regional Transport Authority to intimate the date of hearing of the appeal to all the operators of the route in question, that is, the present petitioners. But it is contended that those operators which are no other than the present petitioners must have been in due course informed of the date of hearing.
There is nothing to show, however, on the record that the Regional Transport Authority had complied with this direction and sent the necessary intimation to the petitioners. That being so, we have no hesitation in saying that we cannot make any presumption such as Kishore Sharan wants us to raise. It clearly appears to us, therefore, that no notices' of the hearing of the appeal were ever issued or served on the present peti- tioners. If a little care had been taken in this connection by those concerned, we have, no doubt that all this trouble would not have arisen at all.
22. It is next submitted that even though no notices had been issued to the petitioners, they had knowledge of the hearing ot' the appeal, and, therefore, it was a matter ot no moment it they absented themselves at the hearing thereof. This contention, in our considered opinion, is also bereft of all force. For one thing, there is nothing. to show that all the petitioners, that is, petitioners other than Nos. 4. 5 and 6 had knowledge ot the hearing of the appeal except the bare word of the respondent Kishore Sharan, and this assertion of his is countered by that of the petitioners generally and of all the petitioners except Nos. 4, 5 and 6 in particular so that it is impossible tor us to feel satisfied that they had any prior knowledge of the hearing of the appeal.
23. In the second place, we wish to point out that the other petitioners assuming but not admitting that they had somehow knowledge of the date of the hearing of the appeal, were not bound to appear thereat unless they had been notified by competent authority to do so. If any authority is needed for that proposition we may refer to Rex v. North Oakey, 1927-1 KB 491. The facts of this case were that a faculty was granted to a vicar and churchwardens for the restoration of a screen in a church. A fresco was damaged during the course of restoration. The daughter of the painter who had made the fresco resented this and petitioned the Consistory Court for a faculty to repair the damage alleging that it had been caused owing to vicar's order.
A general citation was issued citing all the petitioners and inhabitants to appear to show cause why a faculty should not be granted to the petitioner. The citation was duly posted on the church door in the ordinary way and a letter was sent to the vicar by the solicitor of the petitioner giving him notice of the issue of the citation. This was done on 26-6-1925. On July 24, the petition was heard before the Chancellor, and the vicar did not appear. The Chancellor granted the faculty prayed for and ordered the vicar to pay to the petitioner all expenses to be incurred in connection with the work and also to pay the costs of the petition to the petitioner. The vicar applied to the King's Bench Division for a Writ of Prohibition.
By a majority, the court was of opinion, Inter alia, that the vicar had ample notice of the proceeding and the complaint that had been made against him. The vicar appealed to the Court of Appeal. The judgment of the Divisional Court was set aside and it was held that the vicar was not given a fair and reasonable opportunity of answering the case made against him. and it was, therefore, further held that the order made was without jurisdiction and that the Prohibition ought to issue. What Atkin L. J,, said in this case may well be reproduced here :
'The citation is a general citation addressed, not to the vicar in particular, but to the parishioners and inhabitants of the parish generally. There was no special citation, and no kind of notice given to him that he would be required to pay any costs, either of the restoration or of the petition. To my mind if a Chancellor seeks to exercise any coercive power over a parishioner, or any body else who comes within the scope of a general citation, he. must see that the person against whom the coercive jurisdiction is sought to be exercised has in fact received special notice that proceedings are being taken upon which an order may be-made against him; and in the absence of a special citation of that kind it seems to me that there can be no power in the Chancellor to exercise any such coercive jurisdiction. I think, therefore, that the Chancellor in this case had no jurisdiction to order the vicar to pay the expense ot the restoration or the costs of the proceedings. Under these circumstances it appears to me that the vicar is entitled to a prohibition, the order being a breach of the fundamental principle of law, that a person is entitled to have notice of a claim against him and to be heard before he can be deprived ot his property. The order, being made without jurisdiction, was wholly without effect, and nothing could validly be done under it.'
The principle of this case, to our mind is clearly attracted to the present case, and we consider it right to hold that the mere circumstance that the petitioners had some knowledge about an appeal having been filed against them or of the date ot hearing thereof before the Appellate Tribunal is not sufficient for us to hold that they had a proper or valid notice of the hearing of the appeal which made it incumbent upon them to appear at the hearing.
24. This brings us to the last branch of the argument of the respondents on this aspect of the case that the petitioners Nos. 4, 5 and 6 when they appeared before the Tribunal on the 30th and 31st October, 1957, had done so not only on their own behalf but also on behalf of the other petitioners and thereby they had accepted notice on behalf of all of them, and, further, they had merely asked for a day's adjournment on 30-10-1957, which had been granted to them and so when the appeal was taken up for hearing before the Tribunal on the 31st October, 1957, there was nothing wrong or improper about it.
It was also submitted before us in this connection that one of the petitioners Gyanchand was admittedly present before the Tribunal at the hearing of the appeal and this man had been acting as manager of the petitioners' common office and that Shri Sharma who had been engaged by Gyanchand and the other two petitioners to argue their case before the Tribunal on 31-10-1957, had been engaged on behalf of all these petitioners. Our attention was specially invited in this connection to Exs. 3, D-16 and D-17 to which we have already referred above and also to Exs. D-15, D-22 and D-23, Ex. D-15 is a certified copy of the Vakalatnama dated 30-10-1957, given in favour ot the Advocate Shri L. L. Sharma in the appeal before the Appellate Authority, the decision whereof is being challenged before us.
This vakalatnama was given in the name of the existing operators of Bonli-Sawai Madhopur and Lalsot-Sawai Madhopur routes by three persons who were Assandas, Gyanchand and Kodumal Shyamdas. Ex. D-22 is the judgment of the Appellate Tribunal dated 21-5-1957, in the appeal No. P-4-l(90)/ 56 filed by Radhey Goyind who was one of the applicants for the Khirni route along with the respondent Kishore Sharan against the resolution of the Regional Transport Authority, Jaipur, No. 120 elated the 21st/22nd January, 1957, and by that judgment the appeal was dismissed on the ground of limitation.
Ex. D-23 is a certified copy of the vakalatnama filed by Assandas in this last-mentioned appeal where he seems to have signed for existing operators of the Sawai Madhopur-Bonli-Lalsot route. This is dated 21-5-1957. The body of the certified copy does not show in whose favour Assandas had executed it but Shri L. L. Sharma has signed it at the end as counsel who accepted it.
25. On the other hand, it has been strenuously submitted before us that the three petitioners Nos. 4, 5 and 6, namely, Kodumal, Assandas and Gyanchand respectively who were present at the hearing of the appeal on 31-10-1957, themselves had no adequate notice of the appeal, and that it was wrong that they had merely asked for one day's adjournment only, and that they were helpless as 'the Appellate Tribunal was 'not prepared to grant any further adjournment, and, in any case, these three petitioners who appeared before the Appellate Tribunal with their counsel appeared on their own behalf and not on behalf of the remaining, petitioners although it was true that their interests were similar.
It was further contended in this connection that the petitioners had a common office, but that was limited to certain matters only which were of an ordinary character and which could conveniently be transacted through this common machinery, but from this it could not be justly concluded that the aforesaid three petitioners who appeared before the Appellate Tribunal and had engaged a counsel to represent them at the hearing of the appeal had the authority to represent all the other petitioners particularly as some of the petitioners did not live in Jaipur at all and lived at other places like Sawai Madhopur or Jastana or Dubbi Banas at considerable distances from Jaipur City where these three petitioners lived, and it was impossible for them to have informed them of the appeal or of the arrangements to be made for the hearing, thereof and of which appeal these other petitioners had no notice whatsoever.
26. It was further contended that although it was true that in the body of the vakalatnamas Exs. D-15 and D-23, the expression 'existing operators' had been used to designate the persons on whose behalf they were given, yet this was ambiguous in itself as the expression 'existing operators' undoubtedly applied to the persons who had actually given them, and that it did not necessarily connote all the existing operators, and, in any case, before it could be assumed that the said vakalatnamas had been given by some of the petitioners on behalf of every one of them, clear proof of their authority to do so should be required and was not forthcoming on the record.
27. We have examined these rival contentions and are not satisfied that we can safely conclude from the material which has been brought to our notice in this connection that the three petitioners who had appeared at the hearing of the appeal could have lawfully represented the interests of the other petitioners even though such interests were common. The acceptance of such a position is, in our opinion, fraught with considerable risk and uncertainty, and we are not prepared to hold in view of the widely divergent positions taken up before us on the opposing sides that the three petitioners had accepted notice of the appeal, or, at any rate, could have done so, on behalf of all the other petitioners.
Their interests, though common, were distinct, and we should have required more positive evidence of an unequivocal character to satisfy us that the three petitioners Nos. 4, 5 and 6 had the authority to represent the remaining operators who are also petitioners before us, and we cannot ignore the possibility that it was open to them, if they had proper notice of the appeal, to have made their own arrangements for the safeguarding of their individual interests. Even so far as these three petitioners are concerned, it is of some significance to note that the affidavit filed on behalf of the Appellate Tribunal in this Court does norcontain anything to support the contention of respondent Kishore Sharan that they had only asked for a day's adjournment on 30-10-1957, and that the case was taken up on 31-10-1957, by the tribunal with their consent and without any further request for an adjournment having been made to it.
It appears to us somewhat difficult to acceptthat the petitioners in the circumstances in which they had found themselves should have asked for such a short adjournment only. But we need not labour the point further, as we are firmly of the opinion that, so far as the other petitioners are concerned, they had not received any valid notice of the appeal nor can it be concluded with therequisite degree of certainty, which we should require in a matter of this nature, upon the varying material which has been placed before us that the three petitioners had the authority sufficient in law to represent the interests of the remaining petitioners, which interests, though common, were after all distinct.
28. It must follow from what we have saidabove that the order of the Appellate Authority which is being challenged before us was bad as it was passed without any notice having been issued to and served on as many as eight of the petitioners before us, and without any opportunity of hearing having been afforded to them, and to which opportunity they must be held to be entitled though not on the express provision contained in the Act itself, but on the most fundamental principle of natural justice, exemplified in the maxim audi alteram pattern, which we have propounded above.
29. In this view of the matter, it is not necessary for us to deal with the other points which were raised on behalf of the petitioners at the bar of thisCourt. This disposes of writ No. 200 of 1957.
30. As we look at the matter, the other writ petition, namely, No. 49 of 1958 is really an offshoot of the order of the Appellate Tribunal dated 31-10-1957, which we have held as bad and unsustainable in law, and, therefore, the questions raised in the other writ hardly call for any separate consideration.
31. In the result we allow both these writ applications and set aside the orders of the Appellate Tribunal and the Regional Transport Authority dated 81-10-1957, and 22-1-1958, respectively and send the case back to the Appellate Tribunal for a fresh decision of the appeal of respondent Kishore Sharan in accordance with law. Mr. Jain, learned counsel for the petitioners before us has accepted notice on behalf of all the petitioners, and, therefore, it will not be necessary for the Tribunal to send out fresh notices to each of the petitioners in connection with the hearing of the appeal.
We direct both parties to appear before theTribunal on 29-8-1959 and to take a further datefor the hearing of the appeal. It will be open tothe appellant to apply for any interlocutory orderbefore the Appellate Tribunal, if so advised, and wehave no doubt that such a prayer, if and when made,will be decided on the merits. It is earnestly to behoped that the Appellate Tribunal will dispose ofthe appeal without all avoidable delay. The petitioners here will he entitled to one set of costs fromthe respondent Kishore Sharan inasmuch as it wasprimarily his fault in not impleading the presentpetitioners as respondents to his appeal which has ledto a good deal of complications which were altogether avoidable.