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Naib Transport (Private) Ltd. Vs. S.N. Mukherjee and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 88 of 1958
Judge
Reported inAIR1959Cal447
ActsMotor Vehicles Act, 1939 - Section 47(1); ;Constitution of India - Article 226
AppellantNaib Transport (Private) Ltd.
RespondentS.N. Mukherjee and ors.
Appellant AdvocateMeyer, Adv.
Respondent AdvocateK.C. Mukherji, Adv.
Cases ReferredOnkarmal Mistri v. Regional Transport Authority
Excerpt:
- .....1954 were plying for hire on route no. 33 in calcutta on the strength of a permit granted by the regional transport authority in accordance with the provisions of the motor vehicles act. in that year the state transport directorate started putting their own buses on route no. 33 and in an attempt to induce the owners of buses, who had already valid licence for operation on that route, agreed that if any such owners would withdraw their buses from route no. 33, they could go over to route no. 12c from which the state transport directorate would withdraw their buses. some owners of buses operating on route no. 33 accepted the offer and transferred their operations to 'route no. 12c. this appellant, however, refused to transfer its buses to route no. 12c. its position was that the permits.....
Judgment:

K.C. Das Gupta, C.J.

1. The appellant company owned two buses which in the year 1954 were plying for hire on Route No. 33 in Calcutta on the strength of a permit granted by the Regional Transport Authority in accordance with the provisions of the Motor Vehicles Act. In that year the State Transport Directorate started putting their own buses on Route No. 33 and in an attempt to induce the owners of buses, who had already valid licence for operation on that route, agreed that if any such owners would withdraw their buses from Route No. 33, they could go over to Route No. 12C from which the State Transport Directorate would withdraw their buses. Some owners of buses operating on Route No. 33 accepted the offer and transferred their operations to 'Route No. 12C. This appellant, however, refused to transfer its buses to Route No. 12C. Its position was that the permits for its two buses were valid till 9-11-1956, and it preferred to continue its operation on Route No. 33 on the strength of those permits. On 27-8-1956, however, the appellant made an application to the Regional Transport Authority for permits on Route No. 12C for its two buses. Though the word 'renew' was used in this application, the Authority rightly treated this as a fresh application for permits for Route No. 12C. The application was rejected by an order dated 26-12-1956. The reasons for the refusal are given in these words: 'I have carefully considered the view points of Messrs. Naib Transport (Private) Ltd., as well as the representation of the State Transport Directorate in the light of Section 47 (1) of the Motor Vehicles Act, 1939. I am satisfied that the existing road passenger transport services between Barisha and Howrah Station are quite adequate and in view of my observations recorded in the earlier order I refuse to grant stage carriage permits in favour of Messrs. Naib Transport (Private) Ltd. authorising them to ply their two buses Nos. WBS-781 and WBS-759 on route 12C of Calcutta.' An appeal was preferred by the company to the Appellate Sub-Committee of the State Transport Authority, but that appeal was dismissed. Thereupon, the company applied to this Court for appropriate writs under Article 226 of the Constitution for getting the order of refusal quashed.

2. The main grounds on which the company bases its claim for relief are first, that in making the order of refusal, the Regional Transport Authority as well as the Appellate Authority took into consideration extraneous matters, such as the policy of the Government of West Bengal regarding nationalisation of all the city routes including Route No. 12C and the congestion of the bus stand at the Howrah station and, secondly, that the authorities failed to take into consideration matters which were incumbent upon them to consider. A Rule nisi was issued, but at the final hearing the Rule nisi was discharged and the application for relief under Article 226 was rejected, the trial judge being of opinion that neither of the two matters, namely the policy of the Government to nationalise Route No. 12C and the congestion of the bus stand at Howrah, was extraneous consideration.

3. Though an attempt was first made by Mr. Meyer, who appeared on behalf of the appellant, to repeat his contention that the question of congestion of the bus stand at Howrah was extraneous, he conceded after some discussion that this fell directly within Clause (a) of Section 47 (1) of the Motor Vehicles Act which mentions the matters to which a Regional Transport Authority 'shall, in deciding whether to grant or refuse a stage carriage permit, have regard.' Clause (a) mentions the interest of the public generally and it appears to me clear that the congestion of the bus stand is a very important matter affecting the interest of the travelling public as well as other sections of the public. This matter cannot, therefore, be possibly considered to be extraneous. As, however, Mr. Meyer has conceded that this is not extraneous and does fall within Clause (a), further discussion of this aspect is not necessary.

4. The main contention which has been pressed before us is that the decision of the Government to nationalise Route No. 12C is wholly extraneous to the decision of the question whether a permit should be granted or refused and the Regional Transport Authority, having based his refusal partly on this nationalisation policy of the Government, must be held to have acted in violation of law. It will be noticed that in the final order that was made by the Transport Authority, no reference, in so many words, was made to the nationalisation policy. In this order he mentions his satisfaction that the existing road transport services between Barisha and Howrah are quite adequate, but he did not give that as the sole or sufficient reason for his refusal. After stating that satisfaction, he went on to give as the other reasons for refusal of the application his observations recorded in the earlier order. That earlier order is also on the record and we find therefrom the following observations which, it is clear, he had in mind when making the final order:

'I made it sufficiently clear to Sardar Dalip Singh that in 1954 it was open to him to go to Route 12C but at that time, while all other buses of Route 33 readily accepted Route 12C, he refused to shift his buses to Route 12C on the ground that permits for his two buses were then valid till 9-11-1956 and thus he forfeited his claim to Route 12C. Besides, the position o Route 12C at that time was quite different from what it is today because, as pointed out by the Director of Operations in his letter of objection at p. 46 that between Howrah Station and Esplanade more than 100 State buses have been plying now, but in 1954 the number was much less. Moreover, today congestion at the Howrah Station is much more than it was in 1954.

In addition to what has been stated above, I pointed out that it has already been decided by Government to nationalise all the city routes including Route 12C and therefore in consonance with the policy of gradual nationalisation of the city bus routes, it is imperative for the R. T. A. to see that no fresh permits are granted to ply stage carriages in any of the city routes of Calcutta.'

5. There can be no doubt from this that apart from the question of adequacy of existing road passenger transport, the Transport Authority also considered the question of congestion at the Howrah Station and also the fact that the Government had decided to nationalise all city routes. It is equally clear that the Transport Authority gave considerable weight to this last consideration. Otherwise, he would not have used the language that it was 'imperative for the R. T. A. to see that no fresh permits are granted to ply stage carriages.' The important question that arises for decision is whether in taking into consideration the Government policy of nationalisation of the bus route in this manner, the Regional Transport Authority was acting in accordance with law.

6. A question was raised before the trial Court and also here, whether the enumeration of the matters, to which a Regional Transport Authority shall have regard in deciding whether to grant or refuse a stage carriage permit, in Section 47 (1), is exhaustive. There has been some divergence of judicial opinion on this question. Some Courts including this Court in Onkarmal Mistri v. Regional Transport Authority, Darjeeling, : AIR1956Cal490 , have taken the view that it is exhaustive and nothing which does not fairly fall within Sub-section (1) can be taken into consideration in granting or refusing a permit. The other view that it is not exhaustive has also been laid down in several cases. It is not necessary for us, however, to discuss this question in the facts of the present case. Whether or not this sub-section contains an exhaustive enumeration of all matters which the Regional Transport Authorities are entitled to take into consideration, it is not disputed, and cannot possibly be disputed, that no matters which are irrelevant to the question--in other words, no matters which a person trying to decide judicially the question whether a permit should be granted or refused would reasonably consider--can be taken into consideration by the Regional Transport Authorities. The trial Judge was of opinion that the decision of the Government to nationalise Route No. 12C was a matter falling within Clause (a) of Section 47 (1), namely, 'the interest of the public generally.' It appears to me clear that if this question of the Government decision to nationalise the route in question be of any relevance, it is only on the ground that it will affect the interest of the public generally. The learned Counsel, who appeared on behalf of the respondents, did not dispute the position that unless the decision of the Government to nationalise the route in question could be considered to affect the interest of the public generally, it had no other relevance.

7. The learned trial Judge has said:

'Whether nationalisation of transport is ultimately or primarily in the interest of the general public may be a debatable point, but is always and certainly in my view a question which can lawfully be considered under that expression 'interest of the public generally' and its consideration is therefore not excluded.'

I find myself in agreement with the learned Judge that the question of nationalisation of transport may properly be considered under the head 'interest of the public generally'. I think however that unless it is so considered, the mere fact that the Government has decided upon such a policy is wholly irrelevant. It is to be noticed that it is nobodys case that the Government had decided to nationalise Route No. 12C within a fixed period of time nor was there any indication that Government was in a position to do so within any particular time. Thus, if the interest of the public demanded that there should be, say fifty buses on a particular road and Government was in a position to supply only thirty, the mere fact that Government had decided on a policy of nationalisation would not make it in the interest of the public generally that the permit should be refused, Again, if the decision or Government was wholly indefinite as regards the point of time at which nationalisation would be completed, it would be unrealistic and unreasonable to think that merely because at some point of time unknown, the route may or will be nationalised, all prayers for permit should be refused in expectation of that uncertain future event. It would certainly be not in the interest of the public generally to refuse permits merely because there was such a decision. Before the decision of Government to nationalise Route No. 12C could be treated as a relevant consideration within Clause (a) of Section 47 (1), it is necessary to have regard not merely to the fact of the decision, but the nature of the decision as regards the time within which the policy is intended or expected to be implemented and also the probability of such implementation taking place. Considered in this light, the Government decision to nationalise Route No. 12C would reasonably be a relevant consideration, but divorced from these particulars, the bare and bald fact of Government decision would, in my opinion, be an irrelevant and extraneous consideration.

8. It is to be noticed that the Regional Transport Authority has persuaded itself that since the Government has made a decision on the matter of nationalisation, 'it is imperative for the R. T. A. to see that no fresh permits are granted to ply stage carriages in any of the city routes of Calcutta.' It is interesting to notice that the Appellate Authority also considered this view, that it was imperative, in view of the Government decision, for the R. T. A. to see that no fresh permits were granted, a very cogent reason. Neither the Regional Transport Authority nor the Appellate Transport Authority appears to have troubled itself with the question whether any decision had been arrived at by Government as regards the point of time by which the nationalisation would be completed or the ability of Government to find the necessary number of buses and the probability of nationalisation being completed within a certain point of time.

9. I have, therefore, come to the conclusion that while the fact of the Government's decision to nationalise the route in question may not be rightly characterised as wholly extraneous by its very nature, the manner in which it has been considered by the Regional Transport Authority as making it imperative that no permit should be granted, shows that the matter was not considered from its really relevant aspect but was considered from the irrelevant aspect that as it was a Government policy, the Regional Transport Authority was bound to give effect to it. It should be properly borne in mind that in discharging its functions under the Motor Vehicles Act the Regional Transport Authority is not acting as an agent of the executive Government or of the State Transport Directorate, but as a judicial body having to determine certain questions judicially. The manner in which the fact of Govt.'s decision to nationalise Route No. 12C has been considered by the Regional Transport Authority as well as the Appellate Transport Authority as the last word on the question to be decided, shows that there has been a serious error apparent on the face of the record in that the interest of the public was not being considered, but importance was being given to the fact of Government decision apart from its effect on the interest of the public.

10. In view of this error, apparent on the face of the record, the order made by the Regional Transport authority and affirmed by the Appellate Authority cannot be allowed to stand. I would, therefore, allow this appeal, set aside the order passed by the learned Judge and order that a writ of certiorari be issued for quashing the order of refusal made by the Regional Transport Authority on 26-12-1956 and the order of the Appellate Authority, affirming that order, dated 13-5-1957. The application for permit should now be dealt with by the Regional Transport Authority in accordance with law.

11. There will be no order as to costs.

R.S. Bachawat, J.

12. The Government policy of nationalisation of bus routes of the city appears to have weighed heavily with both the Regional Transport Authority as also the Appellate Authority. The State Government, I understand seeks to achieve nationalisation by owning State Buses and by running them in the city routes to the exclusion of citizens. One of the reasons for which the application for permit has been rejected is that the Government has decided to nationalise all the city routes including route No. 12C in the course of the next few years and therefore it is imperative for the Regional Transport Authority to see that no fresh permits are granted on any of the city routes. The duty of the Regional Transport Authority is to consider whether or not having regard to this Government policy, it is in the interest of the public generally to grant or refuse the stage carriage permit. The Authority did not consider that question. On the contrary, the authority considered itself bound not to issue the permit in view of the Government policy of nationalisation. In my view, this is not a correct approach to the matter at all. The Regional Transport Authority is an independent body and is not bound by any directive of the Government. In treating the Government policy as practically conclusive of the matter, the Authority erred in law. There is nothing on the record to show that the Government was ready, able and willing to implement its policy of nationalisation by running State Buses in Route No. 12C now or on some known future date. As the matter now stands, it is difficult to find any rational connection between the Government policy and the interest of the public generally. Divorced from the context of the interest of the public generally the policy of nationalisation is an irrelevant and extraneous consideration. In my opinion, there is a clear, apparent and serious error on the face of the record. The Regional Transport Authority as also the Appellate Authority in taking this extraneous matter into consideration, acted in excess of their jurisdiction. It is, therefore, our duty to quash their decision.


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