Bhaba Kanta Bora vs The Appellate Board of State Transport Authority and Others

C. Sanjeeva Row Nayudu, C.J.—The point for consideration in this petition under Article 226 of the Constitution is whether the order passed by the authorities under the Motor Vehicles Act (hereinafter called ''the Act'') granting an additional contract carriage permit to Respondent No. 3 Shri Anil Kumar Aich Roy at Hojai, when the provisional permit granted to him was being terminated on account of the appeal filed by Respondent No. 4 Mrs. Tamal Rani Dey being allowed is valid.

The facts briefly are that Respondent No. 4 Mrs. Tamal Rani Dey had been granted a contract carriage permit on the Hojai bus route. This permit was cancelled and against this order of cancellation she appealed to the Appellate Board of the State Transport Authority, who allowed the appeal and restored the permit of Respondent No. 4 Tamal Rani. The Appellate Board, however, considered that as a result of allowing die appeal, the present Respondent No. 3 Shri Anil Kumar Aich Roy to whom the Regional Transport Authority allotted the permit following cancellation of the permit of the present Respondent No. 4, would automatically be thrown out. Apparently seeing the hardship in the case and noticing that Respondent No. 3 was an ex-serviceman making honest attempts to rehabilitate himself, the Appellate Board ordered the granting of an additional contract carriage permit at Hojai centre in favour of Respondent No. 3. The Petitioner Shri Bhaba Kanta Bora is the Secretary of Hojai Contract Carriage Syndicate and the point raised on his behalf, is that the additional contract carriage permit should not, have been granted without giving adequate notice to the parties interested in the matter and without hearing them.

We have been taken through the provisions of the Act having relevancy to the question before Section 50 of the Act deals with the procedure of Regional Transport Authority in considering applications for contract carriage permits and it reads as follows:

A Regional Transport Authority shall in considering an application for a contract carriage permit, have regard to the extent to which additional contract carriages may be necessary or desirable in the public interest; and shall also take into consideration any representation which may then may be made or which may previously have been made by persons already holding contract carriage permits in the region or by any local authority or police authority in the region of the effect that the number of contract carriage for which permits have already been granted is sufficient for or in excess of the need of the region or any area within the region.

A perusal of this section show that before an additional contract carriage permit is issued, the Regional Transport Authority should be satisfied that it is necessary or desirable to issue the permit in the public interest. Further, if any representation is made in connection with the granting or the refusal of the additional contract carriage permit, that representation would have to be taken into consideration in making an order under this section. Since the section contemplates the making of a representation by persons interested, a certain degree of publicity seems to be required under the section before action is taken; for, without any publicity before action is taken; for, without any publicity and notice, there could be no question of any representation. Hence if a contract carriage permit is issued privately or in secret, then the purpose and object of the section would he pointed out that publicity has not been given to the step which was going to be taken and that the Petitioner had no opportunity of making a representation and objecting to the grant of the permit, either on the ground of public interest or on the ground that it is in excess of the requirement. That this is true may be accepted. But we feel that it is not certainly a ground for justifying our interference in exercise of our extraordinary power under Article 226 of the Constitution. An executive authority or an authority exercising some form of quasi-judicial function may not strictly conform to the requirements of the section or follow the requisite procedure. But that by itself may not render the action of the authority totally void, or without jurisdiction or totally illegal, so as to call for our interference under Article 226 of the Constitution.

We trust that the correct procedure laid down u/s 50 of the Act in future cases will be followed by the authorities under the Act.

With the above observations, we discharge the rule and dismiss the petition, but make no order as to costs.

Goswami, J.

I agree with the order passed in this case.

It is urged by Mr. Ghose, the learned Counsel for the Petitioner that it is implicit u/s 50 of the Act that there must be a prior publication of the application for a contract carriage permit. He, however, was anable to show any section under the Act which warrants a prior publication of an application for a contract carriage permit. In this context it is convenient to quote Section 57(3) of the Act, which relates to the procedure in applying for and granting stage carriage permit. It runs as follows:

57(3) On receipt of an application for a stage carriage permit or a public carrier''s permit, the Regional Transport Authority shall make the application available for inspection at the office of the authority and shall publish the application or the substance thereof in the prescribed manner together with the notice of the date before which representation in connection therewith may be submitted and the date, not being less than thirty days form such publication on which and the time and place at which the application and any representation received will be considered;

There is a proviso to this Sub-section, which is not necessary for the purpose of the case and is not quoted above. While in the case of a stage carriage permit u/s 57(3) of the Act there is an obligation cast on the authorities granting a permit to make the application available for inspection by the public or people who are interested as also by publication in the official Gazette, there is no obligation for publication of an application for a contract carriage permit. u/s 50 of the Act the authorities should take into consideration any representation which may be made at the time of hearing or which may previously have been made by persons already holding contract carriage permit in the region or by any local authority or police authority in the region, and if there is no provision made in the rules or in the Act for a prior publication of the application for a contract carriage permit, the people who are interested, for instance, as in the instant case, the Petitioner who is running certain contract carriage permit, will be in complete ignorance of any application for a contract carriage permit. It appears that there is a lacuna in this behalf in the law and it will be for the State Government to make proper provision in the Rules in order to achieve the object of Section 50 of the Assam Motor Vehicles Act and to take appropriate steps for amendment of the rules made under Chapter IV there of so that the representation clause under that section is not rendered otiose.