1. This is an application under Article 226 of the Constitution for an appropriate writ directing the opposite parties to rescind or withdraw an order dated 31-7-1952 passed by the Commissioner, Burdwan Division, and given effect to by the Regional transport Authority, Burdwan, cancelling the route permit granted in favour of the petitioners for plying a bus in the Burdwan. Barakar route.
2. The petitioners along with several other persons applied for route permits for plying buses on the Burdwan-Barakar route before the Regional Transport Authority, Burdwan, being the respondent No. 2. On 9-5-1952, the respondent No. 2 passed orders granting a route permit to the petitioners and the said order was communicated to the petitioners on or about 14-5-1952. By the said order, the petitioners were called upon to produce the bus before the Secretary, Regional Transport Authority, Burdwan, for inspection by 16-6-1952. Acting upon the said order, the petitioners purchased one stage carriage at a cost of about Rs. 26,550/- and put the same on the said route. By a letter dated the 6/7th August 1952, the petitioners were intimated that the Commissioner, Burdwan Division, had set aside the order of the Regional Transport Authority granting a permit for one stage carriage to the petitioners after hearing an appeal preferred by one Sailesh Nath Sanyal, who had been unsuccessful in getting a permit in respect of the same route from the Regional Transport Authority, Burdwan.
By this letter the petitioners were directed to stop plying the bus on the above route with immediate effect. The petitioners were not made parties to, the appeal preferred by the said Sailesh Nath Sanyal, nor were they given notice of the hearing of that appeal at any stage thereof and the order of cancellation of the permit granted to the petitioners was made by the Commissioners without hearing the petitioners and in their absence. The petitioners have challenged the validity of the orders dated 31-7-1952 and 6/7-8-1952 on various grounds set out in paragraph 7 of the petition.
3. Mr. K. K. Basu, the learned counsel for the petitioner, has argued with reference to Section 64 of the Motor Vehicles Act, 1939, that the provisions of that section, indicated clearly that the jurisdiction of the Commissioner in deciding an appeal is confined only to the determination of the question whether the refusal to grant a permit to the appellant was justified or not, but the Commissioner has no power to order cancellation of permits granted in favour of other persons who are not parties to the appeal and without hearing such persons and in their absence,
4. Mr. Hemendra Kumar Das, the senior Government Advocate, has on the other hand contended that there is no, limit to the power of the Commissioner in the matter of deciding appeals preferred by candidates who have failed to obtain permits from the Regional or Provincial Transport Authorities and he can pass any order that he thinks fit.
5. It appears to me that the contention of Mr. Basu is consonant to reason, and to the principles of natural justice. The Commissioner, while deciding an appeal under Section 64 of the Act, is acting judicially or quasi-judi-cially and consequently he is bound to observe the principles of natural justice and it will be a flagrant violation of the principles of natural justice to affect the right of a person by an order made, in his absence and without giving him an opportunity to put forward his case before he is prejudicially affected by such order. It is true that Section 64 does not expressly provide for any notice being given to any person other than the appellant and the Transport Authority but the moment it is intended to affect the right of any third person by any order made in the appeal, a duty arises according to the principles of natural justice to give notice to the persons affected.
6. For the reasons set out above and also for the reasons given in my judgment -- 'Sitanath Mukherjee v. Regional Transport Authority, Hooghly', Civil Revn. No: 118B of 1952, D/- 4-8-1952 (Cal) (A), this petition should succeed. It may be pointed out that since the judgment delivered by me in Civil Revn. No. 1188 of 1952 (A), a similar view has been expressed by the Madhya Bharat High Court, by Kaul C. J. and Mehta J. in the case of - 'K. N. Bhatia Ghisalal v. Regional Transport Authority', AIR 1952 Madh-B 128 at pp. 129, 130 (B) in Civil Misc. Appln. No. 24 of 1951, paragraphs 14 to 18.
7. The Rule is accordingly made absoluteto the extent that the order dated 31-7-1952and the order dated 6/7-8-1952 only in so faras they affect the cancellation of the petitioners'permit are cancelled and the respondents aredirected to forbear from giving effect to thoseorders in so far as they affect the petitioners.The petitioners are entitled to costs of the present proceedings. Hearing fee is assessed attwo gold mohurs.