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Barrackpore Bus Syndicate Vs. SerajuddIn and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKolkata High Court
Decided On
Case NumberMatter No. 186 of 1955
Judge
Reported inAIR1957Cal444,61CWN217
ActsMotor Vehicles Act, 1939 - Sections 47, 47(1), 48 and 64; ;Bengal Motor Vehicles Rules, 1940 - Rules 57 and 81; ;Constitution of India - Article 226; ;Trade Unions Act
AppellantBarrackpore Bus Syndicate
RespondentSerajuddIn and ors.
Appellant AdvocateR.C. Deb and ;S. Ghosh, Advs.
Respondent AdvocateR. Choudhari, ;S. Choudhary and ;S. Banerjee, Advs. for Respondent No. 2
Cases ReferredIn Sabitri Motor Service Ltd. v. Asansol Bus Association
Excerpt:
- .....one of the objects of the association is as follows:'(ix) to manage, control and regulate through route committee or committees the omnibus service of the 24-parganas routes no. 78.....'another object is to check all unhealthy competition which is ruinous to motor transport as a trade.10. it appears to me therefore that an excess in the number of vehicles plying in route 78, that is to say, an uneconomic excess, would be a matter directly coming within the purview of the objects for which the association came to be formed, and it is impossible to say that it is not affected by an order which affects the proper running of the transport services in route 78. under section 47 of the act, even an unincorporated association interested in the provision of road transport facilities is.....
Judgment:
ORDER

Sinha, J.

1. The facts in this case are briefly as follows:

2. The Respondent No. 1, Sk. Serajuddin, owned ten buses or stage carriages Which were plying on divers routes In Calcutta and its suburbs. In September 1950, permits for eight buses out of the said ten buses were cancelled and permits were granted to the said Respondent for two buses on Route No. 33. Since then the said route was taken over for plying State Buses of the Government of West Bengal. In March 1954, the Regional Transport Authority directed that the said two buses should ply on Route 12C with effect from April 1954. On June 21, 1954, the said Respondent, made an application for variation of the permits in nig favour by transfer of his buses from Route No. 12C to Route No. 78. The said application was recom-mended and forwarded by the Additional District Magistrate 24 Perganas to the R.T.A. Calcutta. The R.T.A. gave notice of the said application to the petitioner Association and to the Directorate of Transportation, Government of West Bengal. The petitioner Association objected to the said transfer. The main objection Was that there were a sufficient number of buses already operating on the route and that a further increase Would be uneconomic. One of the grounds of objection however was as follows:

'.....that neither under the M. V. Act norunder the Rules made thereunder, the R.T.A.. is entitled to transfer any bus from one route to another without complying with the provisions of section 47 of the M. V. Act because this application for transfer tantamounts to a new application for fresh permits.'

The R.T.A. considered the application upon the merits and rejected it upon, the ground that there were no vacancies on the said route, which practically amounted to upholding the main objection of the petitioner that there was no scope for adding to the number of buses already plying on route No. 33. This order of rejection was made on December 23, 1954. On or about January 21, 1955 the Respondent No. 1 preferred an appeal against the order of the R.T.A., to the Appeal Sub Committee of the State Transport Authority. The appeal was allowed by the Appeal Sub Committee by its order dated 11/23rd February 1955. The order commences as follows:

'Appeal by Sk Serajuddin against the order dated 23-12-54 of R.T.A. Calcutta rejecting his prayer for transfer of his 2 stage carriages from route No. 12C to 78'.

I have set out the above preamble to show that the Appeal Sub Committee was not considering the transfer of the buses from route 33 to route 12C. In fact, route 33 is not at all mentioned in the order.

3. Before the Appeal Sub Committee, the petitioner had taken the point that the appeal did not lie against an order of the R.T.A. refusing to vary the permit or conditions thereof. This point does not appear to have been considered at all by the Appeal Sub Committee.

4. The petitioner thereupon filed an appeal on February 28, 1955 to the Appeal Committee of the State Transport Authority and inter alia took the point of jurisdiction. By an order dated 29 July/9 August 1955 the Appeal Committee rejected the appeal, stating that it failed to find any reason to interfere with the decision of the Appellate Sub Committee. This rule was issued on the 8th December 1955 upon the respondents to show cause why a writ in the nature of certiorari should not be issued, quashing the aforesaid orders of the Appeal Sub Committee and the Appeal Committee and why a writ in the nature of mandamus should not be issued directing the said respondents to forbear from giving effect to the said orders and why such further or other orders should not be made as to the Court seems fit and proper.

5. Mr. Deb, on behalf of the petitioner has argued as follows:

6. First of all he points out to the provisions of section 47 of the Motor Vehicles Act (hereinafter referred to as the 'Act'). This section lays down the procedure to be followed by the Regional Transport Authority in considering applications for the issue of a Stage Carriage permit.

7. The matters to be considered are set outtherein and it has been laid down that the R.T.A., must take into consideration any representations made by persons already providing road transport facilities along or near the proposed route or by any association interested in the provision of road transport facilities. This section has to be read with the provisions of rule 57 of the Motor Vehicles Rules (hereinafter referred to as the 'Rules') which requires publication by posting on the notice-board of the application for issue of a permit together with notice of the date before which representations should be made. Admittedly this procedure was not followed in the present case. No such public notice was given. Next, learned counsel refers to section 64 of the Act which lays down the provision as to appeals. The only relevant part thereof is as follows:

'64. Any person

(a) aggrieved by the refusal of the provincial or a regional Transport Authority to grant a Permit or by any condition attached to a permit granted to him.....

may within 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.'

Under rule 84 of the Rules, the time within which an appeal can be filed from an order of the R.T.A. is 30 days from the date of the receipt of the order. Mr. Deb points out that originally the Respondent No. 1 had been plying on route 33 which was changed to 12C sometimes in March 1954. He never appealed to the Appeal Sub Committee against this transfer. Long after the time to appeal was barred, he made an original application before the R.T.A. Calcutta for effecting a transfer from route 12C to 78. The R.T.A. gave notice to the petitioner Association and the Governmental authorities but did not otherwise follow the provisions of section 47 of the Act. What then is the nature or incidents of such an application? Mr. Chaudhury appearing on behalf of Respondent No. 1 has advanced an ingenious argument. He argues that under sec. 48 (d) (iia), the route upon which a permit is valid, is a 'condition' attached to the permit, and under rule 81 of the Rules the R.T.A. has the power, upon an application in writing by the holder of the permit, to vary the permit or any condition thereof. Thus, he argues, the R.T.A. can vary the route and the provisions of section 47 are not attracted. I am unable to accept this argument. Strictly speaking, the route is not a condition of the permit. The condition is that the holder will operate on a particular route or routes and on no other. But assuming that it can be called a condition attach-ed to the permit, still, a variation of the route is in effect the grant of permit in a fresh route and is therefore a fresh permit, and it is incumbent upon the authorities to follow the procedure laid down in Section 47 of the Act and the relative rules. The scheme of the Act and the rules is that before a permit is issued for a stage carriage upon any route, the public, including persons or associations using the route or nearby routes should be notified about it and allowed to prefer objections. It is only after hearing such objections that the permit should be granted. This is a rule based on sound principles and there are obvious justifications for following the procedure laid down. This cannot be got round by following a round-about method of issuing a permit for one route after following the requisite procedure and then transferring the permit to another route Without following any procedure at all. This would render the provisions of section 47 of the Act as nugatory. In the case of SuburbanTransport Service v. C. K. Roy, (sic), I had to deal with a similar situation. That was a case of the cancellation of a permit. The permit was cancelled without following the procedure laid down in section 60 and it was sought to be supported by the very same argument, namely, that it was a mere alteration of the terms of the permit and thus covered by rule 81. I held that there could not be a cancellation without following the provisions of section 60 of the Act. Rule 81 has to be read with section 47 of the Act. A transfer of a permit to a new route amounts to the issue of a new permit in respect of that route and such a permit can only be issued after strictly following the procedure laid down in section 47 of the Act and the relative rules. In this case, admittedly there was no public notice put up on the notice board inviting representations, and the procedure laid down under section 47 read with rule 57 of the Rules was not followed. Thus, a permit to ply on route 33 could not be issued to the petitioner, by the R.T.A. or by the appellate authorities without compliance with the prescribed procedure.

8. The R.T.A. had however refused to effect the transfer. I do not see how therefore can there be any question of appealing under section 64. Mr. Chaudhury argues that his client was aggrieved by a condition attached to the permit and thus he appealed under section 64 (a). I have already shown that this is inaccurate. The R.T.A. had changed his client's route to 12C in March 1954 and as against that order he had the right of appealing to the Appeal Sub Committee within the prescribed time, but he never exercised that right. He made an original application for varying the terms of the permit to the R.T.A. by permitting to ply in route 78. The R.T.A. by its order dated 23-12-1954 refused to vary the terms of the permit. It refused to allow the respondent No. 1 to ply his buses on route 33 (78?). An appeal has been granted against an order refusing to grant a permit or by any condition attached to a permit. But no appeal has been provided for, or lies, against an order refusing to vary the conditions of a permit. It is clear that the authorities considered the proceedings as being an application by Respondent No. 1 for varying the terms of his permit by transferring the route from 12C to 33, and that the appeal preferred to the Appeal Sub Committee was considered upon the footing that the R.T.A. had refused to vary the terms of the permit. The order dated 11/23 February 55 directed the R.T.A. to allow the two buses of Respondent No. 1 to ply on route No. 78, and this order was without jurisdiction and contrary to law. It follows that the order of the Appeal Committee was also without jurisdiction and contrary to law. Both these tribunals failed to consider the points of jurisdiction and the illegality of the procedure followed, although they were expressly canvassed before them.

9. Mr. Chaudhury has next taken the point that the petitioner Association cannot maintain this application. He argues that the Association does not own any vehicle and therefore the members may be affected but not the Association itself. Further, he argues that the Association has no legal right which has been affected and so a writ in the nature of mandamus does not lie. In Sabitri Motor Service Ltd. v. Asansol Bus Association, : AIR1951Cal255 (SB) (A), it was held by a Special Bench presided over by Harries C. J., that the word 'Association' in sections 47 and 64 of the Act does not necessarily mean an incorporated association.. This was an application under article 227 of the Constitution and it can there-fore be implied that an application by even an unincorporated association lies under that article. Mr. Chaudhury argues that although such an application lies under article 227, it does not lie Underarticle 226, an argument which I find difficult to follow. In the present case, the petitioner Association is registered under the Indian Trade Unions Act XVI of 1926 and is a corporate body with right to sue or being sued in its own name. (See Sections 4, 9 and 13). In order to maintain an application for a writ of Certiorari, the applicant must be a party affected by the impugned order. The question is whether the petitioner Association can be said to be a party affected by the orders of the authorities, whereby the Respondent No. 1 has been enabled to add his buses to the large number of vehicles belonging to the members of the Association, which are already operating on route No. 78. The registered rules of the Association have been placed before me. One of the objects of the Association is as follows:

'(ix) to manage, control and regulate through route committee or committees the omnibus service of the 24-Parganas Routes No. 78.....'

Another object is to check all unhealthy competition which is ruinous to Motor Transport as a trade.

10. It appears to me therefore that an excess in the number of vehicles plying in route 78, that is to say, an uneconomic excess, would be a matter directly coming within the purview Of the objects for which the Association came to be formed, and it is impossible to say that it is not affected by an order which affects the proper running of the transport services in route 78. Under section 47 of the Act, even an unincorporated Association interested in the provision of road transport facilities is permitted to make repressn-tations against the issue of a permit in a route. It is unthinkable that it has been given this right by Statute and yet it is to be deemed to be unaffected by a grant of permit to which it objects. In the petition (paras 1, 4 and 23) the petitioner has stated that it is interested in road transport facilities and vitally interested in the matter of transfer. Such interest has been admitted in the affidavit in opposition of Benoy Kumar Bose filed on 27th February 1956, paragraph 5.

11. I hold, therefore, that the petitioner Association is affected by the orders of the Appeal Sub-Committee and the Appeal Committee, mentioned above, and therefore an application for a writ in the nature of certiorari is in order. Coming now to the case of a writ in the nature of mandamus, I do not see why the petitioner has not a legal right. As I have mentioned above, section 47 confers a statutory right of representation upon such an Association. The right of representation implies that the petitioner is affected by the grant of a permit and if it is a person affected by the grant of a permit, then like any other member of the public it has a legal right to see that the provisions of law relating to the grant of a permit are observed. I do not, therefore, find any difficulty in granting a writ in the nature of mandamus in this case.

12. The last point taken is the point of delay. The appeal before the Appeal Commitee of the State Transport was rejected on the 29th July 1955. The petitioner obtained a certified copy of the appellate order on or about the 27th of August 1955. At or about that time the long vacation of this Court commenced and the rule was issued on or about the 8th of December 1955. Consequently I do not see that there has been such delay as to disentitle the petitioner to relief.

13. The result is that this rule must be made absolute and the impugned orders of the Appeal Sub Committee and the Appeal Committee of the State Transport, dated 11/23rd February 1955 and 29th July/9th August 1955 as mentioned in the petition, must be quashed and/or set aside by issue of a writ in the nature of certiorari. There will also be a writ in the nature of mandamus directing the respondents to forbear from giving effect to the said orders. If it is intended to issue a permit to respondent No. 1 for route 75 or any other route, the procedure laid down by law must be followed.

14. The incorporation and the wording of Rule 81 has created certain difficulties, and much of the conduct of parties may be attributed thereto. Regard being had to the facts and circumstances of this case I make no order as to costs. There will be a stay of operation of this orderfor a fortnight. The order will be drawn up ex-peditiously.


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