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United Motor Transport Co. Ltd. Vs. Sreelakshmi Motor Transport Co. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKolkata
Decided On
Reported inAIR1945Cal260
AppellantUnited Motor Transport Co. Ltd.
RespondentSreelakshmi Motor Transport Co. Ltd. and ors.
Excerpt:
- .....the legislature had in contemplation cases where the competent transport authority had in fact issued permits for a fixed period and that period was less than three years. the case before us, however, is of a slightly different type. it is of the type where a competent transport authority issues a permit for a period of less than three years without an application from the owner of the vehicle and without following the procedure laid down in section 57 of the act, the permit being at the same time not a temporary permit issued under section 62 of the act. the contention of the appellants is that such a permit is of no effect, that is to say, the owner of a motor vehicle to whom such a permit has been issued must be taken to have no permit at all. the contention of the.....
Judgment:

1. The plaintiffs are three private limited companies registered under the Companies Act. Their business is carriage of goods and passengers by motor vehicles. In 1937 when the Motor Vehicles Act of 1914 (8 of 1914) was in force they obtained permits to ply 22 motor vehicles of different types on the Sylhet-Shillong Road from 1st April 1937 to 31st December 1939. These permits were issued by the Assam Government, for that was the authority to issue permits under rules framed under Section 11 of the said Act. In 1939 the Motor Vehicles Act of 1914 was repealed and the Motor Vehicles Act, 4 of 1939, came into force on 1st July 1939. By Section 134 of the last mentioned Act, hereafter called 'the Act,' the rules framed under the Motor Vehicles Act of 1914 were kept in force, subject to some limitation and conditions not material to these appeals, for a period of nine months from the date on which the Act of 1939 came into force, that is to say, those rules remained in force up to 31st March 1940. The Assam Government exercising powers under those rules, which were thus kept in force till 3lst March 1940, renewed on 6th December 1939 those permits issued to the plaintiff companies for a period of three months, from 1st January to 31st March 1940. On 20th March 1940 those permits were again renewed by the Assam Government for a further period of three months from 1st April to 30th June 1940. As the old rules--the rules framed under Section 11, Motor Vehicles Act of 1914--ceased to have force on 31st March 1940 the Assam Government ceased to have power from after that date to issue permits and so did not issue further permits to the plaintiff companies from after that date.

2. The Motor Vehicles Act of 1939 is more elaborate than the earlier Act of 1914, which it repealed. Chapter 4 of the Act headed 'Control of Transport Vehicles,' is the only chapter relevant to the case before us. For in this case we are concerned with transport vehicles, namely, public service vehicles of two classes, stage carriages and goods vehicles. By Section 44 the Provincial Governments are required to constitute Provincial and Regional Transport Authorities by issuing notifications in the official Gazette. For one province there is to be one Provincial Transport Authority with functions, powers and duties defined in the Act. But a Provincial Government can by notification divide a province into smaller units called regions, and appoint Regional Transport Authorities for such units. The functions, powers, and duties of Regional Transport Authorities are also defined in the Act. Where no Regional Authority has been constituted to exercise jurisdiction over a particular area, the Provincial Transport Authority will have to perform the functions and discharge the duties imposed on Regional Transport Authorities, and where Regional Authorities have been constituted may, if so required by a Regional Transport Authority, perform those duties, etc., and also in cases where a particular route falls within the areas assigned to more than one Regional Authority. Section 42 of the Act requires the owner of a transport vehicle to take out a permit from the Regional Transport Authority in order to enable him to ply his vehicle in a public place (which includes a public road). Applications for permits are to be made to a Regional Transport Authority. The form and contents of application for permits of different classes of transport vehicles, stage carriages, contract carriages, private carriers of goods and public carriers of goods, and the matters that are to be taken into consideration by the Regional Transport Authority for granting or refusing such permits are defined in the different sections of Chap. 4 of the Act. The Provincial Transport Authority of Assam was constituted by the Assam Government by a notification published in the official Gazette on 22nd February 1940. Seven persons including the Home Minister of Assam constituted that body. That authority began to function from 1st April 1940. No Regional Transport Authority was or has been constituted in respect of the area over which the Sylhet-Shillong Road runs, and so all the functions, powers and duties required to be performed, exercised or discharged by a Regional Transport Authority are vested in the Provincial Transport Authority. Accordingly that Authority on 29th June 1940 'extended' the period of the permits, that had been issued by the Provincial Government under the rules framed under the Act of 1914 to the plaintiffs, from 1st July 1940 to 30th September 1940, and then again on 25th September 1940 'extended them' for a further period of three months from 1st October to 31st December 1940; copies of the relevant documents are respectively Exs. 1 (h) and 1 (i). The effect of those two documents is a material question in these appeals. On 16th July 1940 the Provincial Transport Authority of Assam issued a notice (No. M. V. 592-625) inviting applications for permits for plying motor vehicles of different types on the Sylhet-Shillong Road. The notice specified the number of vehicles, the total number being thirty-six--which was made up as following:

4Cars for Service No. 1

(Passengersservice) for 1st class passengers.

4Vehicles for Service No. 2

(Passengers service for all classes ofpassengers, except first class, and for parcels and luggages to be carried ina separate compartment of the same vehicle).

(Forcarrying luggage, goods potatoes and dogs).

4Vehicles for Service No. 3

4Vehicles for Service No. 4

4Vehicles for Service No. 5

16Vehicles for Service No. 6

(Lorriesfor carrying goods).

3. It also specified a number of conditions, one of them being that the maximum period of permits was to be for 5 years. No minimum period was indicated. The notice was forwarded by letters to the plaintiffs companies and other Transport Companies. In pursuance of this notice many applications for permits were made. The three plaintiffs companies combined with pro forma defendants 10 and 11, Mahari & Sons and D. C. Chaudhuri, and made an application on 24th July 1940 for permits for all the thirty-six vehicles of all the six services, (Ex. B 23, II 22) which they sent with their covering letter (Ex. B 22, II 20). On the same day they sent another letter, Ex. B 24, in which they stated that the proposed permit fees were high and asked the Provincial Transport Authority to reconsider the matter about permit fees.

4. The Provincial Transport Authority held a meeting on 19th September 1940. On that day it rejected the application of the plaintiffs and of pro forma defendants 10 and 11. It agreed to grant permits for six lorries of service No. 6 to defendants 2 to 9. Each of defendant 2, 8, 4 and 9 was to get permit for one lorry, defendants 5 and 6 for one lorry and defendants 7 and 8 for the remaining lorry. The authority proposed to give to defendant 1 company permits of the remaining 10 vehicles ' of service NO. 6 and of all the vehicles of services Nos. 1 to 5 subject to its fulfilling certain conditions. That company had not applied for permits for the vehicles of services Nos. 1, 3 and 4 but only for vehicles of the other services and one of the conditions was that it should apply for permits for vehicles of services Nos. 1, 3 and 4 also. The minutes of this meeting is Ex. B. The learned Additional District Judge has not without justification commented adversely on this document, and those comments do not reflect credit upon the proceedings of such an authority, as the Provincial Transport Authority of Assam, a body constituted for discharging important public duties and with the Chief Minister of Assam as one of its members. Matters which that authority is required to consider by Sections 47(1) (a) and 55(1) (a) were shelved in the background and other considerations prevailed. Whether a Transport Authority which is constituted under the Act and which had its powers and duties defined in the Act can take into account those considerations or impose some of the conditions which have been imposed on defendant l would appear to be a matter of doubtful legality, but, in the view that we are taking, it is not necessary for us to express our final opinion. All we say is that the remarks of the learned Judge relating to the minute book generally and to the record of the minutes of the proceedings of that date and of other dates are justified on the evidence. Defendant l having subsequently agreed to ply all the vehicles of services Nos. 1, 8 and 4 and having undertaken to perform the other conditions imposed on it, was on 80th September 1940 given permission to ply the remaining thirty vehicles on that road for a period of five years commencing from 1st January 1941. Though no permit in the form required by the rules have been issued to defendants 1 to 9, what have been issued amount to permits. We therefore take it that the said defendants hold permits which authorise them to ply their vehicles on the Sylhet-Shillong Road for a period of five years from 1st January 1941 to 3lst December 1945 according to the tenor of those permits.

5. The plaintiffs filed the suit on 6th November 1940. There are eleven principal defendants to the suit. The first nine are the persona to whom permission to ply vehicles for five years from 1st January 1941 was given by the Provincial Transport Authority. The province of Assam and the Provincial Transport authority are respectively principal defendants 12 and 13. The plaintiffs prayers are as follows: (a) for a declaration that they have the right to ply their vehicles on the Sylhet-Shillong Road for a period of three years commencing from either 1st July or 1st October 1940, and that defendants 12 and 13 have no power or authority to interfere with that right of the plaintiffs, (b) that they and the pro forma defendants 10 and 11, have the right to get their permits renewed for a period of five years from 1st January 1941, (c) that the principal defendants 1 to 9 have no right to ply their vehicles on that road up to 30th June and/or 30th September 1943, (d) that these defendants be restrained from plying their vehicles on that road on the basis of the permission given to them by the Provincial Transport Authority by its order of 30th September 1940, and (e) that the fees and rates of fares and freight as fixed by the Provincial Transport Authority are illegal and ultra vires.

6. The learned Additional District Judge by his judgment and decree dated 29th November 1941, has granted all the aforesaid reliefs to the plaintiffs. Three appeals have been preferred before us--one by defendant 1 (No. 283 of 1941) another by defendant 3 (No. 19 of 1942) and the third jointly by the Province of Assam and the Provincial Transport Authority for Assam (NO. 79 of 1942). Identical questions are involved in all three appeals. Only in the appeal by defendant 3 he has preferred a special claim. That special claim of the said defendant was conceded by the plaintiffs-respondents and moreover in the view that we are taking that special question loses its importance. The Motor 'Vehicles Act contemplates the issue of two classes of permits --temporary permits and non-temporary permits. Temporary permits can be issued only under the conditions enumerated in Section 62, and the duration of such permits cannot exceed four months. Such permits can be issued for conveyance of passengers on special occasions, on the occasion of fairs or religious gatherings, for the purpose of seasonal business or to meet a particular temporary need. The intention of the Legislature is plain. Where the need of the public to use motor transport vehicles is of a temporary nature, the permit is to be a temporary one. For using such permits the Regional Transport Authority, or the Provincial Transport Authority, as the case may be, is not required to follow the procedure laid down in Section 57 of the Act. The only other class of permits, which these authorities can issue, and which we have for convenience called non-temporary permits, are to be issued by those authorities after following the procedure laid down in Section 57 of the Act. Section 58 (1) defines the duration of such permits. The duration must be for three years at least, but the Transport Authority has been given the power and discretion to give them life for a longer period not exceeding five years.

7. The first point in the case is whether the orders Exs. 1 (h) and 1 (i) issued by the Provincial Transport Authority of Assam and communicated by that authority to the plaintiffs amount to permits. The word 'permit' has been defined in the Act. It is a document issued either by the Regional or the Provincial Transport Authority authorising the use of a transport vehicle as a stage carriage or as a contract carriage, or a private carrier or as a public carrier. In this case we are concerned with stage carriages and public carriers. Rule 69 of the rules framed under 8. 68 of the Act by the Assam Government prescribes certain standard forms for permits. Those forms are appended to the set of rules as published. The relevant forms are P. St. Section and P. Pu. C. They are to be in two parts, one to be kept by the holder and the other to be exhibited in the vehicle. The particulars which are to be entered in the permits are, name, father's name and address of the holder of the permit, route or area for which permit is to be valid, description and capacity of the vehicle, date of expiry. In the case of stage carriages a table of maximum fares and freights fixed under Section 43 of the Act and particulars of the time-table are to be stated in addition. Exhibits 1 (h) and 1 (i) say that the 'existing permits are to be extended for the period of three months.' Those documents came within the definition of permits for they were issued by the Provincial Transport Authority and authorised the plaintiffs to whom they were communicated to use their vehicles on the Sylhet-Shillong Road. Taken with the existing permits which the plaintiff had they supplied all the particulars which the form of permits prescribed by Rule 69 required to be stated. Looking into the substance of the matter and disregarding the form, Exs. 1 (h) and 1 (i) are, in our opinion, permits within the meaning of the Motor Vehicles Act of 1939.

8. If a permit which is not issued under Section 62 of the Act, is issued by a competent Transport Authority after following the procedure laid down in Section 57 of the Act, but the permit on the face of it is for a period of less than three years, that permit in our judgment would be valid for a period of three years. That is the view we take of Section 88 of the Act, for that section says that 'without renewal' the permit shall be effective for a period of not less than three years The phrase 'without renewal' shows that the Legislature had in contemplation cases where the competent Transport Authority had in fact issued permits for a fixed period and that period was less than three years. The case before us, however, is of a slightly different type. It is of the type where a competent Transport Authority issues a permit for a period of less than three years without an application from the owner of the vehicle and without following the procedure laid down in Section 57 of the Act, the permit being at the same time not a temporary permit issued under Section 62 of the Act. The contention of the appellants is that such a permit is of no effect, that is to say, the owner of a motor vehicle to whom such a permit has been issued must be taken to have no permit at all. The contention of the plaintiffs-respondents is that such a permit would attract to it the provisions of para. 1 of Section 58 and notwithstanding the shorter term mentioned in the permit, the holder will, as a matter of law, be entitled to use his vehicle for a period of three years. This contention of the plaintiffs has found favour with the learned Additional District Judge. In support of their contentions the appellants say that the formalities prescribed in Section 57 are not directory but mandatory formalities, and so a permit issued by a competent Transport Authority by disregarding the procedure laid down therein would be of no effect. It would not, they say, be regarded as a permit issued under the Motor Vehicles Act of 1939.

9. It is quite clear that the procedure laid down in Section 57 must be followed by the transport authority when dealing with applications for permits. If that authority either grants a permit or refuses a permit without following the procedure laid down in Section 57, it would be a case of material irregularity and the order for granting or refusing permit, as the case may be, will be liable to be set aside by appellate authority on an appeal being preferred under Section 64 of the Act by a person aggrieved by the refusal, when the permit had been refused, or on an appeal preferred by a local authority, or by the police or by a person providing transport facilities who had opposed the grant of the permit, where the permit has been granted. In our judgment such a permit would not be a void document. It will have to be revoked at the instance of persons mentioned in Clause (f) of Section 64, by the appellate tribunal, and if not revoked or till revoked will be a valid permit, a permit issued under the Act, and would attract to it the provisions of para 1 of Section 58. We accordingly uphold this part of the judgment of the Additional District Judge. The plaintiffs are entitled to a declaration that they have a right to ply the motor vehicles for which they had permits on 30th June 1940 on the Sylhet-Shillong Road up to 30th September 1943 subject to the payment of fees prescribed by the Provincial Transport Authority in the notice M. V. 592-625 dated 16th July 1940. In the view we have thus taken it would not be competent to the civil Court to determine whether the permits issued to defendants 1 to 9 are good permits or not. That question can only be determined by the appellate tribunal, the prescribed authority mentioned in Section 64, which in this case is a Board of three Ministers constituted with the approval of the Governor of Assam. As the permits issued to those defendants have not been revoked by that Board it must be taken that defendants 1 to 9 have permits to use their vehicles on the Sylhet-Shillong Road from 1st January 1941 up to 31st December 1945. Their permits cover all the 36 vehicles of services 1 to 6 mentioned in the notice, M. v. 592-625 issued by the Provincial Transport Authority on 16th July 1940. As the Transport Authority has not expressly limited the number of stage carriages or public carriers under the provisions of Ss. 48 and 56 on the Sylhet-Shillong Road, the plaintiffs have no right to complain about the user of that road by defendants 1 to 9. The effect of our decision would be that the plaintiffs have the right to ply their cars, but subject to payment of fees prescribed by the Provincial Transport Authority, on the Sylhet-Shillong Road from 1st October 1940 to 30th September 1943 in addition to the 36 vehicles of defendants 1 to 9 and we make the declaration in that form. They cannot get an injunction restraining defendants 1 to 9 from plying their vehicles on that road.

10. At the conclusion of the hearing the learned Advocate-General intimated to us that all the vehicles of the plaintiffs have been requisitioned for military service and in that view he does not ask us to decide the other two points decided by the lower Court. We do not therefore decide the following questions: (i) whether the plaintiffs had preferential right to have their permits renewed and (ii) whether the fares and freights as fixed by the Provincial Transport Authority are illegal.

11. The findings given in the judgment of the Court below on those two matters are expunged and as also the reliefs on these two matters given in the decree. We do not agree with the finding that the permit fees prescribed by the Provincial Transport Authority are illegal. That subject is not included in Section 43 and so the local Government has nothing to do with the fixation of the permit fees. That falls within the jurisdiction of the Provincial Transport Authority. As the plaintiffs had surrendered permits for eight vehicles the declaration will be limited to 14 vehicles specified in the affidavit filed by defendant 1 before the Second Subordinate Judge Sylhet, on 9th December 1943 (?). In modification of the decree of the learned Additional District Judge the decree will be as follows: It is hereby declared that the plaintiffs companies are entitled to run the following vehicles on the Sylhet-Shillong Road from 1st October 1940 up to 30th September 1943, subject to the payment of permit fees as specified in M. V. 592--dated 16th July 1940 issued by the Provincial Transport Authority of Assam. No. and class of vehicles.

PassengerVehicles:

GoodsVehicles.

A/907-S,A/908-S, A/872-S

A/864-S,A/867-S, A/873/S,

A/1030-S,A/1031-S, A/1048-S

A/819/S,A/891-S, A/868-S

A/928-S.A/933-S,

12. The plaintiffs-respondents will have the costs of First Appeals Nos. 283 of 1941 and 79 of 1942 from the appellants of those appeals. The appellant in First Appeal No. 19 of 1942 would be entitled to the costs of the court-fees only paid on the memorandum of appeal to this Court from the plaintiffs-respondents. Other costs of this appeal will be borne by the respective parties themselves.


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