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Shri Krishnagopal Dutta Vs. Regional Transport Authority, Burdwan and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 675 (W) of 1969
Judge
Reported inAIR1970Cal104,73CWN714
ActsMotor Vehicles Act, 1939 - Sections 47 and 62; ;Constitution of India - Article 226; ;Code of Civil Procedure (CPC) , 1908 - Section 9
AppellantShri Krishnagopal Dutta
RespondentRegional Transport Authority, Burdwan and ors.
Appellant AdvocateKashi Kanta Moitra, ;Nripen Bhattacharjee and ;Asish Kumar Sanyal, Advs.
Respondent AdvocateBalai Chandra Roy and ;Sushil Kumar Banerjee, Advs.
Cases ReferredRaman & Raman Ltd. v. State of Madras
Excerpt:
- .....this is necessary all the more because section 62 itself imposes restrictions on the power to issue temporary permits. a statement of the purpose of the grant, in my view, is necessary so that the order authorising issue of a temporary permit may be open to scrutiny, having regard to the restrictions created by the statute.10. mr. balai roy contended however that it was not necessary for the regional transport authority to state the reason for which a temporary permit had been issued. in support of this contention reliance was placed by mr. roy on a bench decision of this court reported in (1965) 69 cal wn 984, shaik md. shaffi barry v. income-tax officer. that decision, to my mind, is of no assistance in this case. in that case computation of income-tax under the first proviso to.....
Judgment:
ORDER

B.C. Mitra, J.

1. The petitioner is a permit holder in respect, of the route Burdwan to Guskara via Suri Road and owns a stage carriage being No. W.G.H. 8016. There is another permanent stage carriage route namely Guskara to Bon-Naba-gram. The route between Burdwan to Bon-Nabagram via Suri Road covers the whole of the route Burdwan to Guskara and proceeds further on to a distance of 4 to 5 miles.

2. On February 13, 1969, the respondent No. 5 (Dayamoyee Transport Service) applied for a temporary permit for 4 months from February 16, 1969, to June 15, 1969, in the route Burdwan to Bon-Kabagram via Suri Road for two Up and Down trips daily. On this application the Secretary to the Regional Transport Authority the respondent No. 4 (B. K. Majumdar, Secretary, Regional Transport Authority, Burdwan) made an order on the next day February 14, 1969, granting a temporary permit for four months with effect from February 16, 1969. It is this order which is the subject-matter of challenge in this Writ petition. The petitioner as the holder of a regular stage carriage permit for the route Burdwan to Guskara via Suri Road contends that the order granting a temporary permit is bad on several grounds to which I shall presently refer; and therefore appropriate writs and orders should be issued directing the respondents to cancel, rescind and withdraw the said order granting the temporary permit to the respondent No. 5.

3. Four points were urged by Mr. K.K. Moitra learned Advocate for the petitioner. The first point urged by him was that his client was the holder of a permanent stage carriage permit in the shorter route mentioned above and was therefore seriously affected by the grant of a temporary permit to the petitioner. Therefore it was argued that a notice and an opportunity to show cause should have beengiven to the petitioner, who should also have been heard in the matter of the grant of the temporary permit to the respondent No. 5. The second point urged by Mr. Moitra was that under Section 62 of the Motor Vehicles Act, 1939, (hereinafter referred to as the Act) a temporary permit could be granted only for one or other reasons set out in Clauses (a), (b), (c) and (d) of the said section. But the order granting the permit does not specify for which of the four reasons the temporary permit was granted to the respondent No. 5 and therefore the order is bad. The third contention of Mr. Moitra was that the respondent No. 4 as the Secretary of the respondent No. 1 had no authority or jurisdiction to grant the temporary permit inasmuch as it is the respondent No. 1 alone who has the authority to grant a temporary permit under Section 62 of the Act. The fourth point urged by Mr. Moitra was that there is no provision in the Act for re-issuing a temporary permit as was purported to be done by the impugned order dated February 14, 1969, as the statute only authorised the grant of a temporary permit for a period of four months for the reasons set out in Clauses (a), (b), (c) and (d) of Section 62 of the Act.

4. With regard to the first point mentioned above Mr. Moitra submitted that the procedure prescribed by Section 47 of the Act should have been followed by the respondent No. 1 in granting the temporary permit. This section requires that after taking into consideration the matters set out in Clauses (a), (b), (c), (d), (e) and (f), the Regional Transport Authority shall take into consideration any representations made by persons already providing passenger transport facilities by any means along or near the proposed route or area. It was argued that the petitioner was a person, who already provided passenger transport facilities on the major portion of the route itself, and therefore, the respondent No. 1 was bound to give a show cause notice to the petitioner and an opportunity of making representations against the grant of the temporary permit to the respondent No. 5. It was next argued that the procedure prescribed by Section 47 should be followed by a Regional Transport Authority in all cases of grant of a stage carriage permit, whether such a permit was for a temporary period or the full period of 3 or 5 years, and that being so the respondent No. 1 was bound to give to the petitioner an opportunity of making representations against the grant of the temporary permit to the respondent No. 5. In support of this contention reliance was placed on a decision of the Punjab High Court reported in , Prem Bus Service (Pvt.) Ltd. v.Regional Transport Authority. Patiala in which it was held that the requirement of Section 47 had to be followed in granting a temporary stage carriage permit under Section 62 of the Act in the same manner and to the same extent as was required in the case of the grant of a regular stage carriage permit, and that a statutory duty was cast on the Regional Transport Authority, to take into consideration any representations made by persons already providing passenger transport facilities. It was further held that the only manner in which it could be made possible for interested parties to make representations against grant of a temporary permit would be to give them a notice of the proposed grant of a temporary permit.

5. Mr. Balai Roy learned Advocate for the respondent No. 5 on the other hand contended that the Regional Transport Authority was not required to give a notice and an opportunity of being heard as prescribed by Section 47 in the case of temporary permits. He argued that as temporary permits were granted only for the particular purposes mentioned in Clauses (a), (b), (c) and (d) of Section 62 of the Act, it might not in some cases be possible to serve a notice on an interested party and to give an opportunity of being heard. For instance, he argued, that there might be a natural calamity like flood or a special occasion like a foot-ball match in which cases it might not be possible to give a notice to a party who already held a permit on that route.

6. In my view the contentions of Mr. Moitra on this question must prevail. The statute requires the Regional Transport Authority to take into consideration any representations made by persons already providing passenger transport facilities, while considering an application for grant of a stage carriage permit. There is nothing in Section 47 of the Act to justify the conclusion that representations from interested parties would be taken into consideration in the case of regular stage carriage permit only and that such consideration of representation is to be excluded when the Regional Transport Authority considers an application for a temporary permit under Section 62 of the Act. A person already providing transport facilities on the same route or part of the route would be vitally affected by the grant of a permit, even though temporary, and in my view the Regional Transport Authority is bound to follow the principles of natural justice and serve a notice upon the party and also hear any representations from him if any, while considering an application for grant of a temporary permit. The provision in Section 47 for taking into consideration re-presentations from parties likely to be affected by the grant of a permit is mandatory in nature and the mere possibility that there may not be sufficient tune for giving such notice and also of hearing such representations, is no excuse for disregarding the mandatory statutory provisions.

7. Before passing I should mention that the learned Advocate for the respondent No. 1 submitted that while the Regional Transport Authority was bound to give opportunities for making representations against the grant of a temporary permit, and also to consider such representations while granting a temporary permit for the first time, such authority, was not bound either to give such opportunity of making representations, or to take into consideration such representations, while issuing a temporary permit for the second or the third time. In support of this contention reliance was placed on a decision of the Punjab High Court reported in . That case is no authority for the proposition that the Regional Transport Authority while bound to hear representations from interested parties at the time of issuing a temporary permit for the first time, is not so bound while issuing a permit for the second or the third time. In my view this contention of the learned Advocate for the respondent No. 1 is entirely untenable. If opportunity of making representation has to be given while issuing the permit for the first time, it must equally be given while issuing such a permit for the second or the third or the fourth time. There is neither merit nor force in this contention of the learned Advocate for the respondent No. 1.

8. Turning now to the question as to whether the Regional Transport Authority should specify in the order the ground on which the temporary permit was issued under Section 62 of the Act, it will be seen that the jurisdiction to issue a temporary permit is confined to the four grounds set out in Section 62 of the Act namely:--

(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.

9. The authority to issue a temporary permit is limited and confined to either one or the other of the four grounds mentioned above. But what is of importance is that the first proviso to Section 62 requires that temporary permit under Section 62 shall in no case be granted in respect of any route or area specified inan application for the grant of a new permit under Section 46 or Section 54 during the pendency of the application. The second proviso requires that a temporary permit 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. Quite apart from the restriction imposed upon the Regional Transport Authority by the four conditions mentioned above, further restrictions have been imposed by the statute to the grant of a temporary permit. The Regional Transport Authority is a statutory authority. It derives its power, authority and jurisdiction, to issue or refuse permits, from the statute itself. Equally in exercising its power to grant a permit it must observe the limitations on its powers created by the statute. In my view the Regional Transport Authority must set out in the order authorising the issue of a permit the purpose or the ground on which a temporary permit is issued. This is necessary all the more because Section 62 itself imposes restrictions on the power to issue temporary permits. A statement of the purpose of the grant, in my view, is necessary so that the order authorising issue of a temporary permit may be open to scrutiny, having regard to the restrictions created by the statute.

10. Mr. Balai Roy contended however that it was not necessary for the Regional Transport Authority to state the reason for which a temporary permit had been issued. In support of this contention reliance was placed by Mr. Roy on a Bench decision of this Court reported in (1965) 69 Cal WN 984, Shaik Md. Shaffi Barry v. Income-tax Officer. That decision, to my mind, is of no assistance in this case. In that case computation of income-tax under the first proviso to Section 41(1) of the Indian Income-tax Act, 1922, was made. But there was nothing in the order to indicate that the assessments were made under Section 41(1) of the said Act. It was held that the assessment order was not bad for want of a reference to the particular section under which the order was made and that since the Income-tax Officer had the jurisdiction to compute the tax at the highest rate under the statute, it was not necessary for him either to state the reasons or the section of the statute under which the order was made. The question with which I am concerned in this application is entirely different. The jurisdiction to issue temporary permits under Section 62 of the Act depends upon the existence of one or other of the four conditions set out in Clauses (a), (b), (c) and (d) of Section 62. If neither of these conditions exists, the Regional Transport Authority would have no jurisdiction to grant a temporary permit to an applicant. The existence of one or other of the conditions therefore is the sine qua non to the exercise of the right to grant a temporary permit. The requirement in Section 62 that a temporary permit can be granted only for one or other of the reasons set out under Section 62 of the Act are conditions precedent to the exercise of the power to grant a temporary permit. If one or other of these conditions precedent do not exist, or if the prohibition in the first or the second proviso to Section 62 is attracted, a temporary permit cannot, in my view, be granted by the Regional Transport Authority. It is now well settled that where the exercise of jurisdiction is dependent upon the existence of conditions precedent, the authority exercising the jurisdiction or making an order in exercise thereof, must satisfy the Court that the conditions precedent to the exercise of the jurisdiction has been fulfilled. This question has been set at rest by the Supreme Court in Barium Chemicals Ltd. v. Company Law Board, : [1967]1SCR898 , Rhotas Industries Ltd. v. S.D. Agarwal, : [1969]3SCR108 and Calcutta Discount Company Limited v. Income-tax Officer, Companies District I, : [1961]41ITR191(SC) .

11. In this case the petitioners have charged the respondent No. 1 with mala fide in granting a temporary permit to the respondent No. 5. He has alleged that the impugned temporary permit was granted to the respondent No. 5 on February 14, 1969, although the application for the same was made only on the previous day; and therefore the Regional Transport Authority did not apply its mind at all to the need or justification for the grant of a temporary permit But although these serious allegations have been made against the respondent No. 1, no affidavit has been filed on its behalf to justify the grant of the temporary permit or to satisfy this Court that the conditions precedent to the exercise of the power to grant a temporary permit has been fulfilled. Both Mr. Roy and Mr. Banerjee submitted that it was not a case of a grant of a temporary permit for the first time, but it was a case where a temporary permit was being renewed or reissued. In such a case in my view where temporary permit was granted for the second or the third time for the same route, the conditions precedent to the exercise of the power must be satisfied in the same manner and to the same extent. Merely because a temporary permit was being granted for the second or the third time, there is no justification for making the impugned order for a temporary permit without applying the mind at all to the need for such a permit orwithout coming to the conclusion that the mandatory conditions laid down in Section 62 have been fulfilled. I therefore hold that the impugned order was made by the respondent No. 4 without applying his mind to the requirement of Section 62 of the Act and on extraneous considerations.

12. Turning now to the third contention of Mr. Moitra namely that the respondent No. 4 had no authority or jurisdiction to grant the temporary permit, it will be seen that under Section 62 of the Act a temporary permit can be issued by a Regional Transport Authority. There is nothing in this section which authorises a Regional Transport Authority to delegate its powers under the Section either to its Secretary or to anybody else. In this case the order for issue of a temporary permit was made by the respondent No. 4, as the Secretary of the respondent No. 1 and the permit itself was also issued by him. Admittedly there is no resolution of the respondent No. 1 authorising the grant of a temporary permit to the respondent No. 5. Mr. Roy, however, drew my attention to the proceedings of the meeting of the respondent No. 1 held on September 29. 1965, which is Annexure 'Z' to the petition of the respondent No. 5 verified by an affidavit affirmed by Ananda Kali Mukherjee on March 17, 1969. It appears from the minutes of the meeting of the respondent No. 1 that the following resolution was passed :--

'Resolved that the Secretary R. T. A. Burdwan be authorised to re-issue temporary permits if considered necessary, to persons already holding temporary permits and against whom there is no adverse reports.'

Quite clearly the respondent No. 1 delegated its authority to issue temporary permits to the respondent No. 4. But there is nothing in the Act which authorises delegation by a Regional Transport Authority of the power to issue temporary permits to its Secretary. This power has been conferred upon the Regional Transport Authority itself, and in my view it cannot abdicate its power in favour of any other person or authority without a sanction in law. In my view the Regional Transport Authority in this case by the resolution mentioned above surrendered its authority and jurisdiction, without any sanction in law to its Secretary. This the respondent No. 1 is not entitled to do. The delegation therefore must be held to be bad and in that view of the matter the order for issue of the temporary permit passed by the respondent No. 4 on February 14, 1969, must be held to be invalid and made without jurisdiction. This order must, in my view, be struck down.

13. Before proceeding to consider the last contention on behalf of the petitioner I should notice one argument advanced by Mr. Roy namely that the rules framed under the Act are part of the statute itself and therefore since the application by the respondent No. 5 was made according to the rules, it cannot be assailed by the petitioner. In support of this contention Mr. Roy relied upon a decision of the Supreme Court T.B. Ibrahim, Proprietor, Bus Stand, Tanjore v. The Regional Transport Authority, Tanjore, : [1953]4SCR290 . I accept this contention of Mr. Roy that rules framed under a statute are to be treated as part of the statute itself. But the question whether the application by the respondent No. 5 was in accordance with law is not a question in issue in this application. Reliance was also placed by Mr. Roy on another decision of the Supreme Court, Raman & Raman Ltd. v. State of Madras, : [1956]1SCR256 . This decision, to my mind, is also of no assistance to the respondent No. 5 in this application.13. The last contention of Mr. Moitra was that there was no provision in the Act for re-issue of a temporary permit and therefore the impugned order for reissue of a temporary permit in favour of the respondent No. 5 was bad. In other words, it was argued that Section 62 authorised the Regional Transport Authority to grant a temporary permit but there was no provision in that section for re-issue of a temporary permit. I cannot, however, accept this contention of Mr. Moitra. The operative part of the order is as follows :--

'Issue temporary permit for four months subject to the approval of the R. T. A.'

In the permit itself there is nothing to show that it was re-issued. Therefore although in the body of the order it is said that it is to be considered that if a temporary stage carriage permit for four months from 16-2-69 or from the date of issue of the permit be re-issued to the permit-holder, there is nothing in the order itself or in the permit that it was re-issued. But even if it was stated in the order that the permit was being reissued, that in my view would be a mere irregularity and would not make the order void. The use of the word 're-issue' in a case where a temporary permit was granted for second or a third time to the same applicant, would not in my view make the order itself void. This contention of Mr. Moitra therefore fails.

14. Before concluding I should note that Mr. Roy submitted that the validity of the temporary permit expires on June 15, 1969, and therefore it should not be interfered with and the respondent No.5 should be allowed to place the bus on the route in accordance with the permit. I cannot, however, accept this contention of Mr. Roy. Where, as in this case, the order authorising the grant of a temporary permit is invalid on the grounds discussed by me earlier in this judgment and where the permit-holder has been restrained by an order of injunction of this Court from placing the bus on the route, the permit-holder cannot be allowed to make any use of the permit or take any advantage or benefit thereof.

15. For the reasons mentioned above this Rule is made absolute. Let writ in the nature of mandamus issue directing the respondents to cancel, rescind and Withdraw the order dated February 14, 1969, granting temporary permit to the petitioner and also the permit dated February 14, 1969, valid from February 16, 1969, to June 15, 1969. There will be no order as to costs.


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