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Sabitri Motor Service Ltd. Vs. Asansol Bus Association - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Constitution
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 908 of 1950
Judge
Reported inAIR1951Cal255,55CWN81
ActsMotor Vehicles Act, 1939 - Sections 47 and 64; ;Constitution of India - Article 227
AppellantSabitri Motor Service Ltd.
RespondentAsansol Bus Association
Appellant AdvocateAtul Chandra Gupta and ;Amaresh Chandra Roy, Advs.
Respondent AdvocateJagadish Chandra Ghose, Adv.
Excerpt:
- .....transport authorities and it is common ground that the authority in the burdwan district was the burdwan regional transport authority.6. section 46 of the act provides that an application for a permit to use a motor vehicles as a stage carriage--and such was the application in this case--shall contain certain particulars, and by section 45 must be made to the regional transport authority exercising jurisdiction in the region concerned. section 47 provides that the regional transport authority in deciding whether to grant or refuse a permit must have regard to certain matters and the section then provides that the authority'shall also take into consideration any representations made by persona already providing road transport facilities along or near the proposed route or routes or by.....
Judgment:

Harries, C.J.

1. This is a petition filed under Article 227, Constitution of India, praying that this Court should reverse an order made by the Commissioner of Burdwan dated 21-2-1950, by which he set aside an order of the Regional Transport Authority for Burdwan and cancelled a licence or permit which had been granted by that authority.

2. The petitioners had a permit for a route, running from Barakar through Asansol and Burdwan to Katwa. As this route covered a long distance, the petitioners surrendered the permit which they held and prayed that the route be split into two, namely, Barakar-Asansol-Burdwan and Burdwan-Katwa, and that separate permits should be granted for these two routes. It seems that the matter came before the Regional Transport Authority of Burdwan on 23-9-1949 and the application of the petitioners for splitting up the route and the granting of two permits was rejected. Later,, however, the authority reviewed its earlier decision and granted the petitioners permits for two omnibuses on each of the two routes. The application had been opposed by the opposite parties in this Court, namely, the Asansol Bus Association and the latter preferred an appeal to the Commissioner of Burdwan who was the appellate authority in these matters. The Commissioner came to the conclusion that the order made could not be justified and he accordingly set aside the order of the Regional Transport Authority and rejected the application for splitting up the old route and the granting of two-permits in respect of the two portions into which the old route would be divided.

3. A petition under Article 227 of the Constitution has been preferred and it has been contended by Mr. Atul Gupta on behalf of the petitioners that the Commissioner of Burdwan in hearing this appeal was a tribunal within the meaning of that term as used in Article 227 of the Constitution. Further, he urged that the opposite parties to this petition, namely, the Asansol Bus Association had no right whatsoever to object to the application made by the petitioners to the Regional Transport Authority and further had no right to appeal to the Commissioner of Burdwan. Accordingly the Commissioner of Burdwan had no jurisdiction whatsoever to adjudicate on the matter and as, it is said, his order was without jurisdiction we should set it aside under the powers given to this Court by Article 227 of the Constitution.

4. There can be no doubt that before this route could have been split up into two portions and permits granted for omnibuses to run on such divided portions, permits were required from the Regional Transport Authority. Section 4, Motor Vehicles Act, 1939, provides :

'(1) No owner of a transport vehicle shall use or permit the use of the vehicle in any public place, save in accordance with the conditions of a permit granted or countersigned by a Regional or Provincial Transport Authority authorising the use of the vehicle in that place in the manner in which the vehicle is being used.'

5. Section 44 of the Act provides for the creation of transport Authorities and it is common ground that the Authority in the Burdwan District was the Burdwan Regional Transport Authority.

6. Section 46 of the Act provides that an application for a permit to use a motor vehicles as a stage carriage--and such was the application in this case--shall contain certain particulars, and by Section 45 must be made to the Regional Transport Authority exercising jurisdiction in the region concerned. Section 47 provides that the Regional Transport Authority in deciding whether to grant or refuse a permit must have regard to certain matters and the section then provides that the Authority

'shall also take into consideration any representations made by persona already providing road transport facilities along or near the proposed route or routes or by any local authority or police authority within whose jurisdiction any part of the proposed route or routes lies or by any association interested in the provision of road transport facilities.'

7. Section 48 provides that after consideration of the matters enumerated in the earlier sections the Regional Transport Authority may grant permits and may impose conditions.

8. Section 57, Sub-section (2) of the Act provides that an application for a stage carriage permit has, to be made within a certain time and by Sub-section (3) the Regional Transport Authority on receipt of such application shall make the application available for inspection at their office and advertise the same. Provision is then made for objection by persons entitled to object and then the proceedings are heard.

9. It is also provided by Sub-section (5) that the hearing of the application by the Regional Transport Authority must be in public and if the application is refused, it is provided by Sub-section (7) that the Authority must give its reasons in writing.

10. Section 64 of the Act provides for appeals and it is clear from Section 64 (f) that a person who has opposed a successful application for a permit is a person aggrieved who can appeal. The procedure for making appeals is dealt in Rules 84, 85 and 86 of the Rules made under the Rule making powers given by Section 68 of the Act. The rules provide that an appeal from a decision of the Regional Transport Authority in the Mofasil lies to the Commissioner of the Division in which the region in question lies. Provisions are made for filing a memorandam of appeal setting out the grounds and for filing documents upon which the appellant proposes to rely. In Rule 85 it is provided that after hearing the parties concerned the order appealed from may be confirmed, varied or set aside. It appears that in cases similar to the present the successful applicant is not made a party to the appeal, but the appeal proceeds between the unsuccessful opponent as appellant and the Regional Transport Authority which is expressly made a party.

11. As I have stated, after hearing the parties the Commissioner set aside the order of the Regional Transport Authority which had the effect of cancelling the permit already given.

12. On behalf of the petitioners Mr. Atul Gupta first contended that the Commissioner of Burdwan acting as the appellate Authority in these matters was clearly a tribunal. He urged that this Court would undoubtedly have jurisdiction to issue a writ of certiorari or a writ of prohibition on the Commissioner if the latter had acted without jurisdiction and further this Court would undoubtedly have had jurisdiction to issue a certiorari if the Commissioner had in disposing of this appeal acted contrary to the rules of natural justice. Mr. Gupta's contention was that if these prerogative writs could be legitimately directed to the Commissioner of Burdwan when be was exercising appellate functions under this Act, then it followed that the Commissioner was a judicial or quasi-judicial tribunal and was such a person as was contemplated by the word 'tribunal' in Article 227. Further it was urged that the Act and the rules thereunder made the Commissioner, exercising these appellate functions, a judicial tribunal. The appeal was presented to the Commissioner in very much the same manner an appeals are presented to the Court, He had to decide the appeals bearing in mind certain provisions of the Act and in particular Section 47 of the Act. He had to hold a public bearing and hear the parties and consider the documents which had to be filed in Accordance with the Rules. His decision according to Mr. Atul Gupta would be a judicial decision or certainly a quasi-judicial decision which would give us the right to interfere under Article 227 of the Constitution.

13. In the course of the argument, it was suggested that possibly a writ of certiorari would be the more appropriate remedy if it could be established that the Commissioner had acted wholly without jurisdiction. But I do not think it is necessary to pursue the matter any further because we are satisfied that there are no merits whatsoever in this application. We are inclined to hold that the Commissioner Was a tribunal, but even so no case whatsoever has been made out for interference with the order which he made.

14. As I have pointed out earlier, Section 47, Motor Vehicles Act, provides that objections may be made to granting permits to applications for the same and when objections are made the Regional Transport Authority must take into consideration the representations made by the objectors. The section also states who can make objections and whose representations must be heard before a permit is granted. From the section it is clear that the following have a right to object: (a) Persons already providing road transport facilities along or near the proposed route or routes. (b) Any local authority or police authority within whose jurisdiction any part of the proposed route or routes lies. (c) Any association interested in the provision of road transport facilities.

15. Mr. Gupta's contention is that the opposite parties, the Asansol Bus Association, had no right whatsoever to object to the granting of a permit to the petitioners and further had no right to challenge the decision of the Regional Transport Authority granting the permits applied for. On behalf of the respondents it is contended that the Asansol Bus Association was clearly an association interested in the provision of road transport facilities in the region; and that being so they were entitled to object to the granting of permits to the petitioners and to appeal from the decision of the Authority granting such permits.

16. It seems that the Asansol Bus Association is an unregistered association of persons owning and plying omnibuses. That is common ground. Mr. Gupta's argument is that such an unregistered association cannot possibly make an objection He urges that an unregistered association is only a conglomeration of individuals and is in no sense a legal person which can make any objection or prefer any appeal. He contended that only an association which is a legal person is contemplated in Section 47 of the Act.

17. It is common knowledge that throughout the mofasil and indeed in the city of Calcutta persons interested in providing transport facilities have banded themselves together and formed associations. They are not incorporated bodies and have no real legal existence nevertheless they are a common feature in the transport world.

18. It seems to me that the Legislature had in mind such associations when it provided that an objection to the grant of a permit could be made by any association interested in the provision of road transport facilities. When it used the word 'association' without any qualification it cannot possibly be held that the Legislature meant only such associations as are incorporated and which can be regarded as legal entities and persons. It seems to me that the fact that this association was not registered was not in itself a bar to its preferring an objection and later an appeal.

19. Mr. Atul Gupta then contended that this association was not an association interested in the provision of road transport facilities within the meaning of that phrase as used in Section 47 of the Act. He pointed out that the association merely consisted of a number of members and the individual members would have a right to object to the granting of permits because it could be said that each member was already providing transport facilities along or near the proposed route or routes. As individual members could object Mr. Gupta has contended that it could never have been the intention of the Legislature to allow an association to object on the same ground. The Legislature, however, has expressly provided that an association interested in the provision of road transport facilities has a power to objection and a right to appeal. Mr. Gupta, however, contends that an association composed of members financially interested in the provision of road transport facilities is not such an association as is contemplated in Section 47. Mr. Gupta would have us read this portion of Section 47 'as any association interested otherwise than financially in the provision of road transport facilities.' But there is no reason whatsoever why we should read into the section words which are not there. The phrase used is couched in the widest terms, and I think it is utterly impossible to hold that the Asansol Bus Association consisting of a number of owners of omnibuses plying for hire in the district was not an association interested in the provision of road transport facilities. The members of this association earn their livelihood by providing transport facilities and the association would be vitally interested in the granting of permits to other persons. The granting of an additional permit would mean more competition, the risk of fare cutting and such like and it seems to me that if any persons or body could be said to be interested in the provision of road transport facilities this association was. The Legislature has contemplated in Section 47 objections being filed by individuals or by associations representing individuals vitally interested in the question of road transport facilities. That being so, we must hold that the Asansol Bus Association had a right to object to the grant of permits to the petitioners and they had a right to challenge the decision of the Regional Transport Authority before the Commissioner of Burdwan. The appeal, therefore, to the Commissioner of Burdwan was properly constituted and was preferred on behalf of an appellant entitled to appeal. The Commissioner, therefore, had jurisdiction to entertain the appeal and, therefore, it cannot be said that his decision was without jurisdiction because no properly constituted appeal was before him. The appeal preferred by the opposite parties was an appeal which they were entitled to prefer and was an appeal which the Commissioner of Burdwan was entitled to and indeed bound to decide. That being so, Mr. Gupta's contention that the decision of the Commissioner was wholly without jurisdiction is without substance.

20. The decision of the Commissioner has not been challenged on any other ground and that being so this petition fails and the rule is discharged with costs--the hearing fee being assessed at five gold mohurs.

Das, J.

21. I agree.

Banerjee, J.

22. I agree.


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