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Kali Kinkar Kundu Vs. Sadhan Chandra Dey and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKolkata High Court
Decided On
Case NumberAppeal No. 529 of 1968
Judge
Reported inAIR1971Cal171,75CWN143
ActsMotor Vehicles Act, 1939 - Sections 46 and 47; ;Bengal Motor Vehicles Rules, 1940 - Rule 53; ;Constitution of India - Article 226
AppellantKali Kinkar Kundu
RespondentSadhan Chandra Dey and ors.
Appellant AdvocateSankardas Banerjee, ;Smriti Kumar Roy Choudhary, Advs.
Respondent AdvocateSudhangshu Bhusan Sen, ;Kalyanmoy Ganguly and ;Sushil Kumar Banerjee, Advs.
DispositionAppeal allowed
Cases ReferredManaging Director v. Radharaman Dhar
Excerpt:
- .....by which his lordship issued a writ in the nature of certiorari to quash a resolution made by the regional transport authority, bankura, on 27th september, 1965. 2. the short facts of the case are as follows: the appellant made an application for the grant of a stage carriage permit on the route from bankura to durgapore railway station via beliatore. sadhan chandra dey, sunil kumar banerjee, lakshmi rani dey, bhola nath banerjee and kalipada dey, who are the petitioners in the application under art. 226 of the constitution, claimed to have jointly applied for the same permit. they say that they were desirous of forming a limited company for the purpose of carrying on a transport business under the name and style m/s. s. c. dey & co. (p.) ltd. the application was made actually under the.....
Judgment:

Arun K. Mukhekjea, J.

1. This Is an appeal against the judgment and order dated 25th July. 1968 of A. K. Sinha, J. by which his Lordship issued a Writ in the nature of Certiorari to quash a resolution made by the Regional Transport Authority, Bankura, on 27th September, 1965.

2. The short facts of the case are as follows:

The appellant made an application for the grant of a stage carriage permit on the route from Bankura to Durgapore Railway Station via Beliatore. Sadhan Chandra Dey, Sunil Kumar Banerjee, Lakshmi Rani Dey, Bhola Nath Banerjee and Kalipada Dey, who are the petitioners in the application under Art. 226 of the Constitution, claimed to have jointly applied for the same permit. They say that they were desirous of forming a limited company for the purpose of carrying on a transport business under the name and style M/s. S. C. Dey & Co. (P.) Ltd. The application was made actually under the name and style of M/s. S. C. Dey & Co. (P.) Ltd. In the application, the names of the petitioners were given as 'partners' of the said Company. At page 34 of the paperbook, there is a copy of the verification roll which had been filed by the petitioners before the Regional Transport Authority, Bankura, in connection with their application. At the end of the verification roll there is a certificate by the Motor Vehicles Inspector (Non-Technical), Enforcement, Bankura to the following effect:--'Verified.

It is an unregistered Company. Shri Sadhan Ch. Dey, one of the partners, has passenger transport business experience (certificate enclosed). Krishna Trading Company, Bankura will finance the Company to purchase a new bus (certificate enclosed). Shri Sunil Kumar Banerjee, one of the partners possesses Medium Motor Vehicles driving licence. The company does not pay Income-tax.

Other points appear to be true. Garage will be inspected later on if the Company gets the route.'

The Regional Transport Authority, Bankura, considered all the applications for, the permanent stage carriage permit in the aforementioned route at meetings held on 27-9-65 and 29-9-65. The minutes of the meeting of the Regional Transport Authority in connection with the applications which had been filed have been annexed to the petition and are to be found at pages 11 to 13 of the paperbook. It appears that after hearing all the applications and all objections relating thereto, the Regional Transport Authority decided that the stage carriage permit in question would be granted to one Kail Kinkar Kundu. The petitioners, therefore, made an application in this Court under Art. 226 of the Constitution challenging the aforesaid decision of the Regional Transport Authority. After affidavits had been filed by all parties, Sinha J. heard the application and quashed the decision of the Regional Transport Authority. Kali Kinkar Kundu who had received the permit under the decision of the Regional Transport Authority has now come up on appeal against that order of Sinha, J.

3. As far as we can ascertain from the judgment of Sinha J. the main contention of the petitioners before his Lordship was that the Regional Transport Authority had contravened the principles of natural justice in so far as only two members took the final decision without consulting the third member, though the petitioners were heard really by three members. Though Sinha J. did not come to any final decision on this point, it appears from the trend of his Lordship's judgment that his Lordship perhaps thought that there was some slight irregularity in the proceedings of the Regional Transport Authority. His Lordship, however, did not like to dispose of the matter on this point. His Lordship preferred to dispose of the application on another short point. Sinha J. analysed the verification report submitted by the Motor Vehicles Inspector and came to the conclusion on the basis of that report that the Regional Transport Authority did not actually apply its mind to the petitioners' case at all. After setting out the verification report in which the Motor Vehicles Inspector had made a remark that the applicant M/s. S. C. Dey & Co. (P) Ltd. had 'no experience in passenger transport business. Hence rejected.' Sinha J. observed that such an observation could not be made upon the application at all since the applicant was an unregistered Company. Sinha J. actually makes the following comment:--

'If this application is, therefore, rejected on the ground that this S. C. Dey & Co. (P) Ltd. had no experience in passenger transport business, then it can be safely concluded that the R.T.A. did not apply its mind at all. On the face of the report given by the Motor Vehicles Inspector it was impossible to conclude that S. C. Dey & Co. (P) Ltd. had no experience in passenger transport business. In my view, the considerations made by the Regional Transport Authority in rejecting the petitioners' application were totally irrelevant and extraneous and in the facts and circumstances of the case could not arise at all'

4. It is on this ground that Sinha J. quashed the proceedings of the Regional Transport Authority. We respectfully disagree with the conclusion of Sinha J. on this point The Motor Vehicles Inspector was under an obligation to consider whether a particular applicant had any experience of transport business. Even in the case of a Company or a corporate body, it is his duty to give a report whether the Company or the corporate body had any such experience. Ordinarily, the experience of one share-holder in a particular business cannot be treated as the experience of a Company in that business. Therefore, if the Motor Vehicles Inspector reports that the applicant in question did not have any experience in transport business, it is difficult to find fault with that report. It is true that the Company not having been registered did not have any legal existence at the relevant time, Therefore, it is not strictly speaking logical to say of an unregistered Company that such a Company does or does not possess experience but it would, in our opinion, be unreasonable to expect such metaphysical considerations from a Motor Vehicles Inspector or even from a member of the Regional Transport Authority. How many lay members of the public would know that it is not logically permissible even to predicate a quality of a non-existent subject and that non-existence of experience is also such a quality. Looking at it from a commonsense point of view, if the Motor Vehicles Inspector says that this particular Company has no experience and if the members of the Regional Transport Authority accept such a report, we do not think that they are taking into consideration any irrelevant matter. On the other hand, this is a very relevant point which it was their duty to consider and they have in fact done so. Therefore, we are in respectful disagreement with the learned Judge as regards his finding that the Regional Transport Authority's ground for rejection of the petitioners' application was irrelevant.To our mind, this ground of rejection was both valid and relevant.

5. This practically disposes of the only ground on which Sinha J. disposed of the application and quashed the decision of the Regional Transport Authority. But while hearing the appeal there were several other points which arose and which were argued from the bar. We shall briefly refer to those points. First, a point was raised as to whether the proceedings before the Regional Transport Authority had been vitiated by any irregularity. It appears that the proceedings were signed by two members, namely, Mr. S. Sen Gupta and Mr. S. K. Dutta on 29th September, 1965 while the third member, namely, Mr. S. K. Singh signed on 27th September, 1965. The petitioners contended that this was an irregularity. We do not, however, consider it to be an irregularity. Under Rule 53(d) of the Bengal Motor Vehicles Rules. 1940, it is provided as follows:--

'53(d). In a Regional Transport Authority the number of members whose presence shall constitute a quorum shall be-

(i) In the case of an Authority consisting of three members, two, or

(ii) in any other case, three'. It is clear that under the rules, the Regional Transport Authority was properly constituted so long as it had a quorum. This is also a very sensible rule for otherwise it would be difficult to expect any public body to act regularly and properly. In this particular case, the Regional Transport Authority was, of course, a small body with three members but there are many Regional Transport Authorities which have a larger body and it is not possible to expect that all members of the public who are on the body of the Regional Transport Authority should be present at every meeting. Apart from this technical rule, it is clear from an affidavit that was filed and the proceedings before Sinha J. that S. K. Singh was present at the Regional Transport Authority's meeting held on 27th September, 1965 and that all the items could not be taken up on 27th September, 1965, for want of time and the matter had to be adjourned till 29th September, 1965 when Mr. Singh could not be present. He actually participated in the deliberations relating to Items Nos. 1 to 13 on the agenda which included Item No. 4 relating to the subject-matter of the present appeal. It is also clear that at the meeting held on 27th September, 1965, the Regional Transport Authority had decided to grant the permit to Kali Kinkar Kundu in the meeting. On that day all the three members were present. As far as we can see from the minutes, some confusion has been createdby the fact that though deliberations took place on two dates, the minutes of the proceedings were written in a composite report after the entire deliberations were over. Mr. Singh, however, took care not to give a wrong impression that he was present on both dates and that is why he wrote out the date 27th September, 1965 immediately below his signature. We are thoroughly convinced that there has been neither a technical breach of the rules nor any substantial irregularity in the proceedings which could have prejudiced the petitioners in regard to their applications.

6. The second point that strikes us is that as regards the application before the Regional Transport Authority about which the petitioner are agitating that application is not a valid application at all, because that application was made in the name of a Company which was not in existence at the relevant time. Therefore, the Regional Transport Authority could not have granted a permit in favour of M/s. S. C. Dey & Co. (P) Ltd. In a Division Bench judgment of this Court, namely, Sri Guru Motor Bus Service Private through Tarapada Dey, Managing Director v. Radharaman Dhar, in A. F. O. O. No. 466 of 1968 (Cal), (unreported), A. N. Ray J. held that a Transport Authority is not competent to grant a licence in the name of a Company which is not registered. In that case, one Tarapada Dey describing himself as managing partner of Sri Guru Motor Bus Service Private Ltd. applied for a permit in the name of the Company though on the date of such application there was no Company called Garbeta Sri Guru Motor Bus Service Private Ltd., A. N. Ray J. had no hesitation in striking down this permit. We are in respectful agreement with this decision of the Court of Appeal by which, in any event, we are bound. In our view, this is an additional ground for which the petitioners' application before Sinha J. should have been dismissed.

7. There is one other ground which really arises out of the immediately preceding objection which we have dealt with just now. Considering that the application that was actually made before the Regional Transport Authority was not an application made by or on behalf of the petitioners but an application made by and in the name of a non-existing Company, it is difficult to say that the petitioners have any legal interest in this matter. In these circumstances, we do not see how the petitioners can sustain an application under Art. 226 of the Constitution of India. This point does not appear to have been taken before Sinha J. and is not mentioned in the grounds of appeal either. Mr. Banerjee appearing for the appellant and Mr.Sushil Kumar Banerjee, appearing forthe State, tell us that this point was actually taken before Sinha J. Be that as it may, we do not and need not base our judgment on that point. We only observe that this itself is a good ground for dismissing the application.

8. In view of what we have said, the appeal is allowed. The judgment and order of Sinha J. is set aside and the Rule is discharged and the application of the petitioners is dismissed.

9. We make, however, no order as to costs.

Sabyasachi Mukharji, J.

10. I agree.


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