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Burdwan Zilla Motor Mazdoor Mandali Co-operative Society Ltd. and ors. Vs. the Regional Transport Authority, Burdwan and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKolkata High Court
Decided On
Case NumberC.R. No. 731(W) of 1970
Judge
Reported inAIR1975Cal280
ActsMotor Vehicles Act, 1939 - Sections 47 and 57(3); ;Bengal Motor Vehicle Rules, 1940 - Rules 55A and 57
AppellantBurdwan Zilla Motor Mazdoor Mandali Co-operative Society Ltd. and ors.
RespondentThe Regional Transport Authority, Burdwan and ors.
Appellant AdvocateBalai Chandra Roy, Adv.
Respondent AdvocateSushil Kumar Banerjee, Adv. for Nos. 1 and 2, ;Chandidas Roy Choudhury, Adv. for No. 3, ;S.K. Roy Choudhury and ;Anil Chandra Sen, Advs. for Nos. 4, 5 and 6, ;Premangshu Chatterjee and ;Nirmal Chandra
Cases ReferredSudhir Kumar Sadhu v. Regional Transport Authority
Excerpt:
- .....case is that the petitioners nos. 1 and 2 ply a bus under temporary permits since 1967 on the route burdwan to matedanga. the petitioner no. 3 also is plying a bus since 1964 under temporary permits in burdwan nasigram (via bhatar) route. a notification was published on september 27, 1968 in local newspaper 'damodar' inviting applications for grant of permanent stage carriage permits on 11 different routes, and it was stated therein that three permits were to be granted to the said burdwan nasigram route and the last date for receiving applications was november 1, 1968. another similar notice was published on october 18, 1968 in 'damodar' inviting applications for grant of permanent stage carriage permits on 41 different routes and it was stated therein that two permits would be.....
Judgment:
ORDER

Salil Kumar Datta, J.

1. This is an application under Article 226(1) of the Constitution praying inter alia for a writ in the nature of mandamus directing the respondents to forbear from giving effect to notices dated June 27, 1969' and August 22, 1969 inviting applications for grant (of) stage carriage permits and also to resolution adoptedby the Regional Transport Authority, Burdwan on September 30, 1969 in furtherance thereof granting permits. There was a prayer also for a writ in the nature of certiorari for quash ing the same. It is to be mentioned that though the prayers were expressed generally against all the routes referred to in the notices this rule is confined to routes Burdwan to Nasigram and Burdwan to Matedanga and the injunction, which was granted at the time the rule was issued is in force in respect of the said routes only.

2. The petitioners' case is that the petitioners Nos. 1 and 2 ply a bus under temporary permits since 1967 on the route Burdwan to Matedanga. The petitioner No. 3 also is plying a bus since 1964 under temporary permits in Burdwan Nasigram (via Bhatar) route. A notification was published on September 27, 1968 in local newspaper 'Damodar' inviting applications for grant of permanent stage carriage permits on 11 different routes, and it was stated therein that three permits were to be granted to the said Burdwan Nasigram route and the last date for receiving applications was November 1, 1968. Another similar notice was published on October 18, 1968 in 'Damodar' inviting applications for grant of permanent stage carriage permits on 41 different routes and it was stated therein that two permits would be granted to Burdwan Matedanga route and the last date for receiving applications was November 25, 1968. It may be mentioned here that the petitioners Nos. 4 and 5 were making grievance in respect of another route but it has been submitted at the hearing that they are no longer interested in this litigation.

3. In the issue of Damodar of July 4, 1969, another notice dated June 27, 1969 was published inviting further applications for grant (of) permanent stage carriage permits in sixty-two routes. Both the above routes were included in the said notification as serials 16 and 44 and the number of permits in respect of both routes was raised to five. It was stated therein that those who had already applied were not required (to) apply again as their applications would be considered with new applications.

4. The petitioners contend that the issue of notice dated June 27, 1969 violated Rule 55-A of the Bengal Motor Vehicle Rules, 1940 and also Section 57(2) of the Motor Vehicles Act, 1939, as it was not competent for the Regional Transport Authority. Burdwan (hereinafter referred to as R. T. A.) to issue such notice after the published date for receiving applications. Another notice was published on August 29, 1969 in local newspaper 'Sarboday' of Memorandum 3969(12) M. V. of August 22, 1969 stating that objections and representations to the applications for grant of permits would be received on or before September 27, 1969. In the said notice neither the applications nor the substance thereof were published. The petitioners were not allowed to inspect the applications andthereby they were deprived of their right under Section 47 read with Rules Nos. 57 and 55-A.

5. The petitioners came to know, on obtaining a copy of the resolution passed by the R. T. A. on September 30, 1969, that each of the respondents Nos. 4 to 8 were selected for grant of permanent stage carriage permits on Burdwan Matedanga route while each of the respondents Nos. 9 to 13 were selected for grant of permanent stage carriage permits on Burdwan Nasigram route. The petitioners in the circumstances moved this Court praying for writs mentioned above. It may be mentioned that in the original petition the resolution of the R. T. A. granting permits was not challenged. The petitioners by an amendment brought in the above referred resolution under challenge in this rule and consequential amendments were also made in regard to the reliefs claimed.

6. The rule was opposed amongst others by the R. T. A. and its Secretary, respondents Nos. 1 and 2 who filed an affidavit-in-opposition denying the allegations and disputing the contentions made in the petition. It was stated that further applications for permits on the two routes were invited on basis of resolution of the R. T. A. dated May 19, 1969 and no provisions of Section 57 (2) of the M. V. Act or Rule 55-A of the B. M. V. Rules were contravened and on the contrary Rule 57 (b) was fully complied with. In the notice inviting objection and representations, total number of applications received in each route, number of permits in each route, place where particulars would be available for inspection, date for receipt of representations, date, time and place for consideration, of applications and representations by the R. T. A. -- all were notified in newspaper 'Khola-katha' of Burdwan on August 22, 1968, in 'Pallibashi' of Kalna on August 27. 1968 and in 'Sarvoday' of Katwa on August 29, 1968, the last day of receiving representation being September 27, 1969. It was denied that the petitioner were not given opportunity to inspect the applications for permits. It was further stated that the applications of the petitioners Nos. 1, 2 and 3 were considered by the R. T. A. but on grounds referred to in the relative resolution of the R. T. A. passed on September 30, 1969, permits were not granted to them. It was submitted that the petitioners Nos. 1 to 3, having filed applications for permits could not contend that Section 47 of the Act or Rule 55-A was not complied with. Further not having filed any representations under Section 57 and Rule 57, they were precluded from raising objection at this stage. For these reasons it was submitted that the rule should be discharged. While respondents Nos. 4, 5 and 6 filed an affidavit-in-opposition on above lines some other respondents also opposed the Rule but did not file any affidavit-in-opposition.

7. The learned Advocates for the respondents took preliminary objection against the maintainability of the petition itself. Itwas submitted that there was misjoinder of causes of acion. The petitioners Nos. 1 and 2 were interested in the permits in Burdwan Metadanga route granted to each of the respondents Nos. 4 to 8 and the said parties had no interest in the other routes. Similarly the petitioner No. 3 was interested in Burdwan Nasigram route, the permit in respect whereof was granted to each of the respondents Nos. 9 to 13, and they were interested in no other route. Further while the petitioners challenged only one resolution granting permit in Burdwan Matedanga route, copy of the resolution of R. T. A. being annexed to the petition, the other resolution granting permit to the other route was not annexed, and the same was thus outside the challenge. Without challenging the resolution granting permits in Burdwan Nasigram route which is not before the Court, the petitioners were not entitled to challenge the grant of permits in the said route.

8. It appears from the petition and the affidavits-in-opposition that the petitioners were challenging the further declaration of additional permits in the two routes by the R. T. A. without disposing of the earlier applications received for the declared vacancies in each of the routes. Their other objection was that entire procedure laid down in Section 57 (2) and Rule 55-A should have been followed de novo after declaration of the total five vacancies in each route, and the maximum limit could not be raised in the way done by the R. T. A.

9. These questions, it has been contended by Mr. Balai Chandra Roy, learned Advocate for petitioners, are really common questions of fact and law on the actions of the R. T. A. requiring adjudication by the Court and I consider them to be so. In the facts of the case noted above, I do not think that there is any fatal defect in the application on this point. Further if these contentions about further declaration of vacancy prevail, the resolutions granting permits would fall automatically, as also contended by Mr. Roy. For these reasons I overrule the preliminary objections and proceed to consider the application on merit, on which the parties have made their respective submissions.

10. Section 47 (1) provides for the procedure of the Regional Transport Authority in considering application for stage carriage permit. It lays down that in considering such application the R. T. A. will take into consideration the matters enumerated therein --namely interest of public generally, advantages to the public arising from the service to be provided, adequacy of passenger transport operating or likely to operate in near future in the route or area, benefit to particular locality, operation of other transport service by the applicant, conditions of road in the proposed route or area. The R. T. A. will also consider representations made by persons providing transport facilities along or near theproposed route or their associations recognised by State Government or by local authority or police having jurisdiction on any part of the route.

Section 47 (3) provides :

'(3) A Regional Transport Authority may, having regard to the matters mentioned in Sub-section (1), limit the number of stage carriages generally or of any specified type for which stage carriage permits may be grant-ed in the region or on any specified area or any specified route within the region.'

11. This sub-section came for Court's interpretation in various decisions. In Abdul Mateen v. Ram Kailash Pandey, AIR 1963 SC 64 it was held :

'.........though it is true that the Regional Transport Authority can revise the general order passed by it under Section 47 (3), that revision is a separate power in the authority and not a power arising when it is dealing with individual permits.'

In R. Obliswami. Naidu v. Additional State Transport Appellate Tribunal Madras, : [1969]3SCR730 , it was observed :

'On an examination of the relevant provisions of the Act and the purpose behind Sections 47 and 57, we are convinced that before granting a stage carriage permit two independent steps have to be taken. Firstly there should be determination by the R. T. A. under Section 47 (3), of the number of stage carriages for which stage carriage permits may be granted in that route. Thereafter applications for stage carriage permits in that route should be entertained.'

In Md. Ibrahim v. State Transport Appellate Authority, Madras, : [1971]1SCR474 , it was held that the R. T. A. is not obliged to hear operators while exercising jurisdiction under Section 47 (3) in fixing the limit of number of stage permits. It was further held that :

'............ the determination of limit ofnumber of permits is to be made before the grant of permits. That is why Section 48 of the Act is prefaced with the words 'subject to the provisions of Section 47 of the Act' .....'

The Court quoted with approval the following observations of the Supreme Court in Jaya Ram Motor Service v. S. Rajarathinam Civil Appeal No. 95 of 1965 dated 27-10-1967 (SC).

'............ it is therefore clear that theauthority has first to fix the limit and after having done so to consider the application or the representations in connection therewith in accordance with the procedure laid down in Section 57 of the Act.'

12. The position emanating from the above decision, in short, is that the R. T. A. has to fix the maximum number of permits to be granted before it can entertain and consider the applications for grant of permits and the objections and representation against them. In the case before us, the number of permits to be granted in Burdwan Nasigram route was fixed to three as per the notification of the R. T. A. published on September 27, 1968, inviting applications and the last date for filing representation was November 1, 1968. In respect of Burdwan Matedanga route, the number of permits to be granted as per R. T. A. notification published on October 18, 1968 inviting applications for permits was two.

Thereafter before the applications were considered, the R. T. A. passed further resolution on May 19, 1969 increasing the number of the permits to be granted to two in Burdwan Nasigram route and to three in Burdwan Metadanga route, so that in both routes the permits to be granted were redeter-mined as five. The R, T. A. also passed the following resolution on that date :

'Further applications be invited on all the routes for which permanent vacancies were declared and applications were received earlier but no permit has yet been granted. Those who have already applied need not apply again as their applications will be duly considered along with all new applications.'

As already noted, notifications were duly published inviting applications for grant of five permits for each route, under Memo No. 2785(16) M. V. dated June 27, 1969. Another notification was published under Memo No. 3969(12) M. V. dated August 22, 1969 inviting objections and representations to the grant of permits, fixing the time limit therefor to September 27, 1969. The R. T. A. thereafter considered the applications for grant of permits at its meeting held on September 30, 1969 when the permits were granted to the respondents noted above in the aforesaid routes.

13. Mr. Roy contended that the procedure adopted by the R. T. A. is not warranted by the Motor Vehicles Act and the Bengal Rules made thereunder. The R. T. A. should have disposed of the applications filed in response to the prior notice under R. 55-A before fresh declaration for stage carriage permits could be made. Reliance was placed on the unreported decision of P. K. Banerjee, J. in C. R. No. 2260(W) of 1967 (decided on 23-6-1971 (Cal)). In the said decision the resolution for a fresh notification directed to be issued by the R. T. A. to attract more candidates with the reservation that candidates who had already filed applications were not to apply, was quashed. It was held that it was incumbent on the R. T. A. to dispose of the applications already filed under Section 57 and fresh publicity was not a valid ground in accordance with Rule 55-A or Section 47. These contentions have been disputed by the respondents and it is further urged that the above decision has no application to the facts of the present case.

14. The Supreme Court decisions referred to above lay down the only limitation that the R. T. A. must declare the vacancies before it embarks upon a consideration ofthe applications and the representations against them, and only after having done so it will consider the applications and representations against them in accordance with the procedure laid down in Section 57 of the Act. Apart from the above reservation there is no other restriction imposed on, a R. T. A. under the Act as interpreted by the Supreme Court. That being the position, if the basic and essential requirements of law as noted above are complied with and no prejudice is caused to any party, there should be no scope for raising any dilute in regard to the procedure impugned in this rule. The basic and essential requirement under the Act and the rules as we have seen is that the R. T. A. must declare the number of stage carriages for which permits will be granted before it considers the applications for grant of permits and representations and objections against them. That has been substantially complied with in the case before us and it is not established that any prejudice thereby had been or could have been caused to any party. It cannot also be disputed that in public interest the R. T. A. declared further vacancies in the route and it is also in such interest that the best candidates should be selected for grant of' permits. Subject to the limitations noted above, the provisions of the Act and the rules should not be applied with formality and rigidity which even have no legal basis. I am accordingly unable to accept, on the authority of the decisions of the Supreme Court cited above, the contentions made on behalf of the petitioners. I further hold that no illegality was committed by the R. T. A. in declaring the vacancies in each route to live in variation of the earlier declaration and after receipt of applications on that basis but before the applications were taken up for consideration.

15. Mr. Roy has next contended that there was a total non-compliance of the provisions of Section 57 (3) of the Act and R. 57. Section 57 (3) provides that the applications for grant of permits shall be available for inspection at the office of the R. T. A. who shall also publish the application or substance thereof in prescribed manner with a notice of the date before which representations in connection therewith may be submitted and also of the date when such application or representation shall be considered. Rule 57 (b) of the Bengal Motor Vehicle Rules provides that it will be sufficient compliance of the provisions of Section 57 (3) if the substance and particulars of the application for permits are posted in the official notice board of the R. T. A. It further provides that in case of applications for permits for stage carriages, a notice shall further be published in a newspaper or newspapers of standing in the region, specifying the total number of applications received, place where their particulars may be available for inspection, date, time and place on which and at which applications and representations will be considered.

16. As to the latter requirement, as it appears from annexure 'D' to the petition, the Memo No. 3969(12) M. V. dated Burdwan August 22, 1969 in clear and express terms sets out the requisite particulars as required. Mr. Roy however contended that neither the applications received nor the substance thereof were posted at the office of the R. T. A. and as such the above memorandum and all further actions taken by R. T. A, in respect of the above two routes should be quashed-Mr. Roy relied on the decision in United Transport Authority Mangalore v. Regional Transport Authority, AIR 1964 Mys 26 where it was held that the provisions of Section 57 are mandatory and cannot be contravened by the Regional Transport Authority. Reliance was also placed on the decision in Sudhir Kumar Sadhu v. Regional Transport Authority, Burdwan, : AIR1964Cal442 in which it was held that extension of existing route in the permits comes within Section 57 (8) and application therefor has to be treated as an application for issuing a new permit requiring compliance of Sub-sections (2) and (3) of Section 57. For non-compliance of the above provisions, the order of the R. T. A. for extended route was quashed.

17. There is considerable force in the contention raised by Mr. Roy and non-compliance of the provisions of Section 57 may be fatal in appropriate cases. In the present case, non-compliance of provisions of Section 57 (3) and Rule 57 (3) on account of non-publication of the applications or the substance thereof in the notice board of the R.T.A. has been taken as one of grounds of attack (ground V) as a submission, but there (is) no averment in the petition stating that such was in fact the position in respect of the applications considered by the R. T. A. On the contrary, no objection was taken at the appropriate stage, and more, the petitioners allowed the applications to be considered by the R. T. A. wioout any objection. In absence of any averment in the petition to that effect that neither the applications nor the substance thereof were posted in the notice board of the R. T. A., which is an averment on fact, and in the circumstances attending it is not possible to consider the petitioners' objection on this score.

18. The allegations that the petitioners were not allowed to inspect the applications though they wanted to do so, have been denied in the affidavit-in-opposition on behalf of the R. T. A. There is no contemporaneous protest to the R. T. A. about the same by the petitioners which would be expected in normal course of human conduct, and accordingly on affidavits it is not possible to decide such disputed question of fact.

19. For all these reasons, the application fails and the rule is discharged without however any order as to costs. All interim orders are vacated.

Mr. Roy appearing for the petitioners prays for stay of operation of this order. Letthe operation of the order be stayed for four weeks from date.


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