Khagendra Nath Das and Others vs The State of Assam and Others

Mehrotra, JJ.—Those rules arise out of applications under Article 226 of the Constitution and can be disposed of by one common judgment.

Rule No. 138 of 1959 arises out of an application by one Sri Khagendra Nath Das who was granted a permit by the Regional Transport Authority, Gauhati to ply his bus on the North-Gauhati-Sarthebari-Barpeta route in the year 1956. From time to lime temporary permits were granted to the petitioner along with live Ors. on the said route on the ground that the State Government was contemplating to nationalise the route. This renewal of the temporary permits continued after every four months till 1959 when it was given out by the State Government that they no longer intended to nationalise the route. It was decided that the number of the permits be increased from six to sixteen on this route.

The number was however reduced to twelve. In its meeting held from 30th July to 3rd August 1959 the Regional Transport Authority, Gauhati granted permits to the petitioner & his five associates who had been in the past getting temporary permits in respect of this route and six more permits were granted to various persons out of the new applicants. Various persons who were aggrieved by the order of the Regional Transport Authority rejecting their applications filed appeals before the Appellate Board. In the appeals filed, all the six new persons who were granted permits by the Regional Transport Authority although they had no temporary permits before, were impleaded as respondents. One Pran Krishna Das son of late Phophoram Das who has been impleaded as opposite party No. 6 in this petition, included the petitioner also as a respondent in his appeal. All these appeals were taken up together and were jointly heard by the Appellate Board on the 16th and 17th November 1959.

The Members of the Board have been impleaded as opposite parties Nos. 2, 3, 4 and 5 to this petition and the State of Assam has been made opposite party No. 1. The appeal filed on behalf of Pran Krishna Das was rejected as he was not considered preferable to the petitioner by the Appellate Board. The permit however granted to the petitioner was cancelled. The facts are not disputed.

The ground taken by the petitioner is that the appeal in which the petitioner was impleaded as respondent before the Appellate Board was dismissed, as such the permit granted to the petitioner could not be cancelled. In effect the argument of the petitioner is two-fold, -- firstly that the Appellate Board has jurisdiction to cancel the permit granted by the Regional Transport Authority only if it is necessary for granting relief to the appellant. In the present case when the appeal of Pran Krishna Das was dismissed by the Appellate Board it cannot be said that it was necessary to give relief to the appellant to cancel the permit granted to the present petitioner. The order of the Appellate Board is therefore without jurisdiction. Secondly it was contended that if it be argued by-the opposite parties that in order to give relief to the appellants in oilier connected appeals some of which have been allowed, it was necessary to cancel the permit granted to the petitioner, this could not be done by the Appellate Board without giving reasonable opportunity to the petitioner to show cause against the cancellation. The petitioner was only impleaded as respondent in the appeal filed by Pran Krishna Das.

The allegations made in the grounds of appeal of Pran Krishna Das were to the effect that he should have been preferred to the petitioner. The notice was issued to the petitioner only in connection with the appeal filed by Pran Krishna Das. In the ether appeals as the petitioner is not impleaded as a party, no notices were issued to him and there were no specific allegations against the petitioner. No grounds were taken in those appeals to the effect that the appellants in those appeals were preferable to the present petitioner. As such even though the petitioner was heard in the appeal filed by Fran Krishna Das in support of the order passed by the Regional Transport Authority granting a permit to him, it cannot be said that he was heard in the other appeals. The principle of natural justice was there-fore violated by the Appellate Board in cancelling his permit in order to give relief to the appellants in those appeals where the petitioner was not impleaded as a respondent.

In the unreported decision of this Bench in the case of Narendra Kumar Das and Others Vs. The Appellate Board, Transport and Others it was held that the permit granted by the Regional Transport Authority can be cancelled by the Appellate Board only if it is necessary to give relief to the appellant. In that case we have indicated that the Appellate Board has power to make selection and for that purpose to consider the respective merits of the appellants and respondents who have been granted permits, but it cannot take up the case of an individual applicant and reject it on some ground irrespective of the fact whether he was preferable to the person to whom the permit has been granted or not. We have further pointed out in that case that it was not open to the Appellate Board to set aside the order of the Regional Transport Authority and quash the entire proceedings and direct the Regional Transport Authority to proceed afresh by inviting fresh applications. In the present case all the appeals were heard together.

The appeal filed by Pran Krishna Das was dismissed, but other appeals were allowed and some of the persons to whom permits had been refused, were allowed relief in the appeal by the Appellate Board and consequently they had to be accommodated on the route and the permits of some of the applicants granted by the Regional Transport Authority had to be cancelled if they were found not suitable as compared to the appellants whose appeals had been allowed. In the present case as all the appeals were heard together in order to give relief to the appellants in other appeals whose appeals were allowed, the Appellate Board cancelled the permit granted to the petitioner after having considered his claim along with that of the Ors. . The Board preferred the appellants whose appeals were allowed to the petitioner. Section 64 of the Motor Vehicles Act provides that the class of persons mentioned in clauses (a) to (i) of the section 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. It is therefore not necessary that all the persons to whom the permit have been granted by-the Regional Transport Authority should be impleaded as respondents to the appeal before the Appellate Board.

The Regional Transport Authority has to consider the respective merits of all the applicants before it and make a proper selection out of them. The power of the Appellate Board is co-extensive with that of the Regional Transport Authority and to that extent the Appellate Board also has to make selection out of all the applicants before the Regional Transport Authority after considering their respective merits and thus the cases of all the applicants before the Regional Transport Authority may have to be kept in mind by the Appellate Board. But Section 64 of the Motor Vehicles Act does not provide that all the persons to whom the permits have been granted by the Regional Transport Authority are to be impleaded as party to the appeal filed by any of the applicants whose applications have been rejected by the Regional Transport Authority.

The original authority which granted the permit is to be heard; it has to support the order passed by it. But as the grant of permit creates a right in favour of the permit-holder, if the permit-holder is to be deprived of that right, he must be heard and consequently before the permit which has been granted by the Regional Transport Authority is cancelled, the person to whom the permit has been grantee by the Regional Transport Authority is to be heard by the Appellate Board along with the Regional Transport Authority and failure to do so will be a violation of the principle of natural justice. This rule there-fore only enjoins upon the Appellate Board before cancelling the permit granted to the petitioner, to hear him. The failure to implead him as a party by itself will not vitiate the appeal.

It is therefore necessary to examine in the present case whether the petitioner can be said to have been heard before his permit was cancelled in order to give relief to the appellants in the appeals in which he was not impleaded as respondent. It is not disputed that all the appeals were considered by the Appellate Board together. The Appellate Board heard the petitioner. It neither appears from the order of the Appellate Board, nor there is any allegation to that effect in the petition that the hearing was confined to certain objections raised by Pran Krishna Das. It is not alleged that the petitioner claimed any further opportunity to refute certain allegations made against him which was denied to him by the Appellate Board. Under those circumstances on account of the mere fact that the petitioner was not impleaded as a respondent in the appeals other than that filed by Pran Krishna Das, it cannot be said that there was any violation of the principle of natural justice when the permit granted to the petitioner was cancelled in order to give relief to the appellants of the appeals other than that of Pran Krishna Das. In this petition there is no direction by the Appellate Board to the Regional Transport Authority that he should proceed afresh to grant permits and fill the vacancy caused by cancellation of the permit of the petitioner by inviting fresh applications.

In Rule No. 139 of 1959 the petitioner Sri Kamala Kanta Talukdar alleges that the Regional Transport Authority granted him a permit in its meeting held on 30th July to 3rd August 1959 in respect of the North-Gauhati-Sarthebari-Barpeta route. On appeal by some of the applicants the permit granted to the petitioner was cancelled by the Appellate Board and it is this order of the Board which has been challenged by the present petition. In this case the petitioner was impleaded as respondent in the appeals filed by the applicants whose petitions had been rejected by the Regional Transport Authority. The permit granted to this applicant therefore was cancelled by the Appellate Board with a view to give relief to the appellants.

The main argument urged by the counsel for the petitioner is that the entire approach of the Appellate Board was not judicial and on the lines of principles enunciated by this Court in the unreported decision referred to above. It was urged that the Appellate Board took up the case of the respondents who had been granted permits by the Regional Transport Authority and set aside their selection. Thereafter it proceeded to fill in the vacancy caused by the cancellation of the permits of the respondents from among the various appellants. The manner in which the appeal has been disposed of indicated that the Appellate Board did not act as a judicial body. It was also urged that the Appellate Board has not applied a uniform rule in making its own selection. Particular emphasis was laid on the following passage in the order of the Board:

Thus as a result of a careful examination and consideration of the claims of the respondents, the Appellate Board has set aside the permits granted to (1) Sri Kamala Kanta Talukdar, (2) Sri Kalpa Kanta Hazarika and (3) Sri Khagen Das.

The Appellate Board, thereafter proceeded to see whether in the vacancies caused by the rejection of three of the selections of the R. T. A., it would uphold the case of any or all the appellants.

However, in dealing with the case of the appellants the Board has given reasons as to why in some cases it had preferred the appellants to the respondents. Though the Appellate Board has not in so many words laid down that it would prefer particular appellant to the particular respondent whose permit it has cancelled, but when the order is read as a whole it is clear that the Appellate Board has considered the respective merits of the appellants and the respondents and has preferred one to the other on the basis of certain reasons.

The Appellate Board had jurisdiction to deal with the appeals and this Court will not issue a writ of certiorari quashing the order, unless it is clear from the order itself that the Board has either exceeded the limits of its jurisdiction or has committed any manifest error of law in the exercise of its jurisdiction. The ambits of its appellate powers are very wide and if the Appellate Board has adopted certain principles In preferring one applicant to the other, this Court even though it may hold a different view from the Appellate Board, will not quash the order.

Coming to the rule No. 140 of 1959, this has been filed on behalf of Kalpa Kanta Hazarika. The petitioner was granted a stage carriage permit for North-Gauhati-Sarthebari-Barpeta route by the Regional Transport Authority, Gauhati in its meeting held on 30th July to 3-8-1959. A number of appeals were preferred by the applicants whose petitions had been rejected by the Regional Transport Authority to the Appellate Board. The Board in its sitting dated 16th and 17th November 1959 set aside the permit granted to the petitioner. The ground on which the Appellate Board has preferred some of the appellants to the petitioner was that the petitioner''s brother was already enjoying a stage carriage permit.

The ground taken by the petitioner before us is that the Appellate Board has not determined the case judicially. It is not disputed in the present case that the petitioner was impleaded as a respondent in the appeals which were allowed by the Appellate Board. It is also not disputed that the petitioner was heard by the Appellate Board before his permit was cancelled. The complaint is that the Board was not right in holding that the petitioner was in any way benefited by the holding of the permit by his brother. The petitioner had separated from his brother in the year 1947. The petitioner was given no opportunity to substantiate the allegation that he had separated from his brother.

It is further urged that the Appellate Board has relied against the petitioner on the circumstance that his brother holds a stage carriage permit and on some other undisclosed facts. If those facts were brought to the notice of the petitioner, he would have controverted them or explained the facts to the Appellate Board. As I have already pointed out in the other case, the Appellate Board had jurisdiction to decide the matter. After having considered all the circumstances and the materials before it, and after giving opportunity to the petitioner to show cause if the Appellate Board preferred some of the applicants who had filed appeals before the Board to the petitioner, such an order is not amenable to a writ of certiorari by this Court under Article 226 of the Constitution. If the Appellate Board is of opinion having regard to the fact that the other member of: the petitioner''s family holds a permit, that he should not be preferred to the other applicants who are comparatively less provided for, -- it cannot be said that the reason is extraneous to the underlying object of the Motor Vehicles Act.

Rule No. 157 of 1959 arises out of an application by Sri Pran Krishna Das son of Phapharu Ram Das of Barpeta. The petitioner had applied for a stage carriage permit for the route North-Gauhati-Sarthebari-Barpeta. His petition was rejected by the Regional Transport Authority. His appeal before the Appellate Board was also rejected by the same order of the Appellate Board passed in its meeting held on 16th and 17th November 1959. The Appellate Board rejected his appeal on the ground that there were definite allegations that there were several permits among the members of his family and affidavits and counter-affidavits had been filed before the Board that they were living in Joint mess and enjoying several permits.

Two points have been urged by Mr. Goswami for the petitioner. Firstly he has contended that all other six persons who were holding temporary permits before the permanent permits were granted, were granted permanent permits by the Regional Transport Authority, and there was no valid reason why he should have been discriminated and his temporary permit not converted into a permanent one. Secondly he contended that the Appellate Board was not right in-holding that affidavits and counter-affidavits had been filed showing that the oilier members of the family were holding permits. Only one affidavit was filed on behalf of the other side before the Appellate Board at the last moment and the petitioner was given no opportunity to controvert the allegations made in that affidavit.

So far as the first contention goes, it is sufficient to point out that the temporary permits were not converted into permanent permits. Before the State Government finally decided to nationalise the route in question, a number of persons placed their buses on that route on the basis of temporary permits. When the Government finally decided not to nationalise this route, applications were invited for the permits and that after it the Regional Transport Authority considered that some of the persons who were already plying their buses on this route on the basis of temporary permits should be preferred to other applicants, it cannot be said that the Regional Transport Authority was only converting temporary permits into permanent permits and was not applying its mind afresh as to whether those persons should be granted permanent permits or not.

That those applicants held temporary permits previously, was one of the considerations which weighed with the Regional Transport Authority in granting them permanent permits and it the Regional Transport Authority thought that there were other considerations which outweighed the consideration that the petitioner held previously a temporary permit, it cannot be said that there was any discrimination in the matter by the Regional Transport Authority in the exercise of its discretion. As to the second contention it is admitted by the petitioner himself in the present petition that the petitioner''s brother Sri Bipin Das has been granted a permit.

The petitioner however has contended that he lives separate from him. As I have pointed out earlier if the Appellate Board considers that the petitioner should not be preferred to other applicants as some other members of his family have been granted permits, it cannot be said that such a consideration is extraneous to the objects of the Act and the order of the Appellate Board cannot be set aside on that ground. The result therefore is that we see no force in any of these petitions. They are all rejected and the rules are discharged, but in the circumstances we make no order as to costs.

Deka, J.

I agree.