Ram Mohan Basu and Others vs State of West Bengal and Others

Bose, J.—This is an application under Article 226 of the Constitution for an appropriate Writ for quashing the order of the District Magistrate, Burdwan. dated the 3rd of December 1953 and the resolution of the Regional Transport Authority dated also the 3rd of December, 1953 and the orders of the Appellate Authorities dated the 4th March 1954 and the 8th June 1954 affirming the order of grant of two permits in respect of stage carriage in favour of respondents 5 to 7 and directing the opposite parties 1 to 4 and 7, 8 and 9 to forbear from giving effect to the said orders. The case of the petitioners is that they are bus owners and they held stage carriage permits in respect, of their buses for plying on route between Polempur (formerly Mulkati) in the district of Burdwan and Arambagh in the district of Hoogly. The petitioners Nos. 2 to 9 however are not represented at the hearing It is alleged in the petition that there were five buses plying on this route in 1947 but gradually 8 other buses were allowed permits to ply on this route. On 19th June 1951 applications were invited by the Regional Transport Authority, Burdwan for introduction of four additional bases on Mulkati-Arambagh route and it was notified that permission would be granted in a joint conference of the Regional Transport Authorities, Burdwan and Hooghly. On 12th November 1952 some of the bus owners objected to the introduction of new buses on Polempur Arambagh route on the ground that introduction of new buses on the said route was absolutely unnecessary and such introduction would adversely affect the interest of the existing bus owners. On 19th November, 1952 the Regional Transport Authorities decided to postpone the matter of granting of four additional stage carriage permits, for further consideration and they granter extension to three buses which were then plying between Polempur and Naisarai to ply the entire length of the route up to Arambagh On 30th November 1950 the petitioner no 1 filed in objection before the Chairman. Regional Transport Authorities. Burdwan and Hooghly, pointing out that as there were 13 buses running on this route of Polempur to Arambagh which covers a distance of 27 miles only, there was no necessity of sanctioning any more buses and moreover the sanctioning of further permits would affect the pecuniary interest of the existing bus owners. It appears that this objection or representation was made in view of the fact that the Regional Transport Authorities had notified their intention "to hold a joint conference of the Regional Transport Authorities of Burdwan and Hooghly on the 3rd of December 1953 at Burdwan to consider the question of granting route permits to four additional buses, to ply on the said Mulkati-Arambagh route. It is alleged in the petition that this representation or objection dated the 30th November. 1953 was made under the provisions of section 47 of the Motor Vehicles Act 1939. On the 3rd of December 1953 Mr. S. N. Banerjee, the District Magistrate of Burdwan, who was also the Chairman of the Regional Transport Authorities, Burdwan and Hooghly. rejected the petitioners'' representation dated the 30th November 1953. The said order of rejection which is annexed to the petition and is marked as annexure E is set out hereunder :

"Order.

Since it h the policy of the Government to grant more route permits and we have been asked to select Bus owners, we cannot help the petitioners in any way. Petition rejected.

Sd. S N. Banerjee, D.M. 3-12-58"

It further appears that on the same day, that is the 3rd of December 1953, a joint meeting of the Regional Transport Authorities of Burdwan and Hooghly was held and at such meeting it was resolved that two permits for stage carriages on Mulkati-Arambagh route would be granted in favour of respondents nos. 5. 6 and 7 and fresh applications for granting the remaining two permits on the said route be invited. The minutes of the joint meeting held on the 3rd December 1953 are set out in annexure F to the petition. A portion of the said minutes is set out below :

* * * *

Considered the applications received after due publications for granting four additional stage carriages permits on Mulkati-Arambagh route.

(a) After receipt the applications were advertised in the local newspapers us 57 of the B.M.V. Rules, 1940 inviting objections and representations, if any.

Resolved that the applications praying stage carriage permits on the above-noted route be now considered on merits,

(b) Considered the reports of the then Officers and the S.D.O''s concerned along with objection:; and representations received".

The case of the petitioners is that the Regional Transport Authorities at this joint meeting did not take into consideration the representation of the petitioner no 1 which was made en the 30th November. 1958 under Sec. 47 of the Motor Vehicles Act. They took into consideration only those objections and representations which were made u/s 57 (3) of the Motor Vehicles Act. On 18th December 1953, the petitioners preferred an appeal against the order of the District Magistrate dated the 3rd December 1953 and against the resolution passed at the joint meeting of the Regional Transport Authorities on the 3rd of December 1953. The Appellate Sub-Committee of the Stage Transport Authority which heard the said appeal on the 25th February 1954 passed the following order on the 4th March 1954 as set out in paragraph 13 of the petition :

"Para 13. That the following facts appear from the extract of the proceedings of the appellate Sub-Committee of the State Transport Authority, West Bengal, held on the 25th February, 1954.

"Item No. 6. Appeal No. B. 110 of 1953 preferred by Messrs. Ram Mohan Basu and others against the order dated 3.12 53 passed at the Joint Conference of the TRA''s of Burdwan and Hooghly granting permits for Stage Carriages for the Interregional route Mulkati-Arambagh overriding the objection of the appellant against further issue of permits".

The Committee heard the lawyer of the appellants and perused the records carefully. The Committee found that the R.T.A''s have issued further permits on the route after satisfying themselves after obtaining a report from the S.P. as the actual volume of traffic on the route. The appellants'' contention that the volume of traffic over the route did not justify further addition of buses is not established. In the circumstances, the Committee upheld the decision of the Joint Conference of the R.T.As. and rejected the appeal.

Sd. J. N. Talukdar. 4.3.54"

Against the said order of the Appellate Sub-Committee dated the 4th March 1954, the petitioners filed an appeal to the Secretary Home (Transport) Department, Government of West Bengal on the 21st of April 1954. On the 8th June 1954 the said appeal was dismissed by the Appellate Committee presided over by Sri S. C. Roy Singha, Chairman of the said Committee. The relevant portion of the said order is as follows :

Heard the lawyer and the appellant. The plea that low earning on the route does not justify the extension, has not been established by any corroborative evidence. They did not submit any accounts of their business to substantiate the statement. In the absence of any such evidence, it is very difficult to accept their plea. On the contrary, there is every reason to rely on the report of the census figure of bus passengers of the S.P. which alone justifies the action of R.T.A. We therefore reject the appeal and upheld the decision of Lower Appellate Court.

Sd S.C. Roy Singha. Chairman, 8.6.54"

The petitioners have challenged the validity of the order of the Regional Transport Authorities and the orders of the Appellate Authorities on various grounds set out in paragraph 12 of the petition.

The first point urged by the learned Advocate for the petitioner is that as the objection or representation made by the petitioner u/s 47 of the Motor Vehicles Act on the 30th November 1953 (Annexure D to the petition of motion) was not placed before or considered by the Regional Transport Authorities before the two permits for stage carriages were granted in favour of respondents5, 6and7, although it is incumbent u/s 47 of the Motor Vehicles Act to take such representation into consideration, the resolution of the Regional Transport Authorities was illegal and bad. It is pointed out with reference to Annexure E to the petition which sets out the order of the District Magistrate dated the 3rd December 1953 that it is only the District Magistrate Mr. S. N. Banerjee. who considered this petition of objection dated the 30th November 1953 and rejected it in his capacity as District Magistrate and not as Chairman of the Regional Transport Authorities. It is further pointed out that in paragraphs 6 and 10 of the petition it is expressly stated that the said representation dated the 30th November, 1953 was made under sec. 47 of the Act and it is further stated in the last mentioned paragraph that the only representation and objection that the Regional Transport Authorities took into consideration at the joint meeting held on the 3rd December 1.953 were representation and objection u/s 57(3) of the Act but there is no denial of these facts in the counter affidavit which has been filed on behalf of respondent no. 5 and also the counter-affidavit filed on behalf of respondents Nos. 1, 8 and 9. It may be pointed out that the counter-affidavit which has been filed on behalf of respondents 1, 8 and 9 was not filed within the time allowed by this Court. A copy of it was supplied to the petitioner only on the day that the matter was taken up for hearing. The petitioner therefore had no opportunity to see that counter-affidavit filed on behalf of respondents 1, 8 and 9 and the learned Advocate for the petitioner has rightly objected to the user of this affidavit in this proceeding. As it appears to me that there is force in this objection I have decided not to; take this affidavit into consideration for the purpose of disposal of this case. Now the order of Mr. S. Banerjee dated the 3rd December, 1953 which is annexure E to the petition makes it clear that he dealt with this petition of objection filed by the petitioner on the 30th November, 1953 in his capacity as District Magistrate and not in his capacity as Chairman of the Regional Transport Authorities. This is indicated by the signature put at the bottom of the order and the initial "DM." put after the said signature. There is no provision in the Motor Vehicles Act or the Rules made thereunder that authorised the District Magistrate Mr. S. Banerjee to deal with the objection and representation u/s 47 in the manner that he has done. It is also clear from a perusal of the portion of the resolution of the Regional Transport Authorities which was passed at the joint meeting held on the 3rd December, 1953 and which has been set out in an earlier part of this judgment that the representation and objection referred to in clause (b) of paragraph 2 of the minutes have reference to representation and objection mentioned in clause (a) of paragraph 2. It is an admitted fact that the petitioner was present at the time when the joint meeting of the Regional Transport Authorities was held on the 3rd December, 1953 and as his statement on affidavit is that this petition of objection dated 30th November, 1953 u/s 47 of the Act was not at all placed before the joint meeting of the Regional Transport Authorities nor was it considered at such meeting and there is no denial of this statement in ''the counter-affidavit, it must be held that the resolution of the Regional Tans-port Authorities dated the 3rd December, 1953 without considering the representation of the petitioner under sec. 47 was illegal and had contravened the provisions of section 47 of the Motor Vehicles Act. It may also be pointed out that the order of the District Magistrate made on the 3rd December, 1953 rejecting the petition of objection dated the 30th November, 1953 was also irregular as he had purported to dispose of such objection in his capacity as District Magistrate and not as Chairman of the Regional Transport Authorities ( Dhanpatrai Periwal Vs. State of West Bengal and Others, ).

It appears however from the petition of appeal which was filed before the Appellate Committee of the State Transport Authority that no ground is expressly taken in that petition of appeal to the effect that the resolution of the Regional Transport Authorities passed on the 3rd December, 195S was without jurisdiction and illegal inasmuch as it did not take into consideration the objection filed by the petitioners on the 30th November, 1953 and it is therefore reasonable to suppose that no such point was actually urged before the Appellate Subcommittee of the State Transport Authority at the time of the hearing of the appeal. This being the position it is clear that the petitioner is not entitled to agitate this point now in this proceeding under Article 226 of the Constitution for the purpose of obtaining a Writ in the nature of Certiorari. It has been held by this court that such conduct on the part of a petitioner disentitles the petitioner from obtaining any relief in the nature of a Writ of Certiorari in an application under Article 226 of the Constitution. Satya Narayan Transport Co. Ltd. Vs. Secretary, State Transport Authority, West Bengal and Others, ; M/s. Pannalal Binjraj Vs. Union of india (UOI), , paragraph 45 of the judgment; and Manak Lal Vs. Dr. Prem Chand, .

The next point that has been urged on behalf of the petitioner is that the principles of natural justice were not observed in this case as the petitioner was not given a copy of the report of the police authority which was considered both by the Regional Transport Authorities and the Appellate Authority in the matter of granting the permits in question. The learned Advocate has drawn the attention of the court to the cases reported in (1940) 4 All ELR, 333 (R. v. Eastminister. Assessment Committee) (5) in which after referring to the principle enunciated in there of Board of Education v. Rice, it was observed as follows:

"In our opinion the fact that the committee is entitled to obtain a report for its guidance does not relieve it of the duty of communicating any relevant part of that report to the persons seeking a determination. Indeed, unless a statute expressly provided that'' such a report should not be communicated to those appearing before the Tribunal, we think that we should assume an intention on the part of the legislature that such communication should be made, It makes no difference, in our opinion, whether the report was obtained before or after the commencement of the hearing, or that it was of a general, and not of a specific, character. The material question is whether or not it contained matters relevant to the inquiry and was considered by the committee in relation to the enquiry. If it did contain such matters and was so considered, then it is ground for complaint that the objectors never had an opportunity of dealing with it."

The same principle has been reiterated in the cases reported in (1945) 2 All ELR 131, (R. v. Architencts'' Registration Tribunal) (6); Kanai Lal Chatterjee Vs. Union of India (UOI) and Others, (7); Promode Lal Moitra Vs. Additional District Magistrate, 24 Parganas and Others, (8),

The petitioner''s case is that at the time when the matter of granting permits was considered by the Regional Transport Authorities at the joint meeting held on the 3rd December, 1953 the petitioner was not even made aware of the existence of this police report but at the time he preferred an appeal against this resolution of the Regional Transport Authotities he came to know about it and before the Appellate Sub-Committee of the State Transport Authority at the time of the hearing of the appeal, he asked for a copy of this report but the petitioner was refused such a copy in spite of his efforts made to secure the same (paragraph 16 of the petition). Furthermore, in the petition of appeal which was filed before the Secretary, Home (Transport) Department, Govt. of West Bengal, the petitioner in ground No. 2 as set out in paragraph 14 of the said petition of appeal, specifically took the point that as the decision of the Appellate Committee of the State Transport Authority was passed on an exparte report of the Superintendent of police and the petitioner had been denied opportunity of looking into the contents of the report, the order made on the basis of the said report or after taking into consideration the facts stated in such report, was illegal. It is submitted by the learned Advocate for the petitioner that if a copy of the report which is dated the 22nd of November. 1952 had been made available to him before the Regional Transport Authorities passed'' the resolution, or the Appellate Sub-Committee of the State Transport} Authority or the Appellate Committee of the Home Department of the Government of West Bengal made their orders the petitioner would have tried to establish that by reason of the introduction of four new buses after the report, had been made by the Superintendent of police, the condition had] been considerably changed and so the authorities concerned should not have granted fresh permission for additional buses to ply on the same route.

Mr. Majumdar and Mr. Amiya Kumar Mukherjee who appear on behalf of respondents Nos. 1, 8 and 9 and respondent No. 5 respectively, have placed reliance on a decision of the Supreme Court reported in (1957) S.C.A. 178 (The New Prakash Transport Co., Ltd, and the New Suwarna Transport Co., Ltd,) (9) for the purpose of showing that the report which is made by the police is for the purpose of supplying information to the authorities concerned in order to enable them to make up their minds whether to grant or refuse issue of permits for stage carriages in any particular case. Such report is not made for the purpose of giving any facility to the objectors. Reference is also made to section 47 of the Motor Vehicles Act to show that such is the object of a police report, but it is to be noted that in this Supreme Court case the police report was in fact read out at the time of the hearing and this was held to be sufficient compliance with the principles of natural justice. In the case before me the contents of the report were admittedly not disclosed to the petitioner at any stage but it appears from the order of the Appellate Sub-committee of the State Transport Authority that the petitioner might have been given some indication to the effect that the police report dealt with the question of the volume of the traffic on the road in question. In my view it is clear on the materials on record that the petitioner was never made aware of the date of this police report nor about the entire contents of that report. So it is possible that if the petitioner had any opportunity of looking into the report he might have presented his case in a different manner and might have produced further evidence which would have convinced the authorities that further permits should not have been issued for the additional buses to ply on the same route. Section 64 of the Motor Vehicles Act requires an opportunity to be given to the appellant to be heard. Such opportunity, in my view, implies reasonable opportunity, and as the petitioner was deprived of the opportunity of looking into the contents of the report and of contradicting the matters which were prejudicial to his case it cannot be said that the petitioner was afforded the opportunity to which he is entitled under the law.

A further point was urged that the order of the District Magistrate elated the 3rd December, 1953 took into consideration extraneous matters and therefore the order is bad. It was pointed out that the Regional Transport Authorities ought to take into consideration only such matters as arc specified in section 47 and no other matters, and reliance is placed on the decision of the Supreme Court reported in (1952) S.C.A. 287 (Veerappa Pillai v. Messrs. Roman and Raman Ltd.) (10) and the case reported in 60 C.W.N. 12. Onkarmal Mistri v. Regional Transport Authority. Darjeeling (11) It has been held by this Court in Civil Revision No. 1537 of 1956 (Satya Narayan Transport Co., Ltd. v. Secretary, State Transport Authority, West Bengal and ore. (2) judgment, dated 6th March. 19571 (since reported in Satya Narayan Transport Co. Ltd. Vs. Secretary, State Transport Authority, West Bengal and Others, .) that section 47 is not exhaustive and it is open to the Regional Transport Authority to take into consideration other allied matters besides the matters enumerated in section 47. Therefore, it is not correct to say that the Regional Transport Authority cannot take into consideration any other matter besides those specified in section 47. As however I have already decided that the order passed by the District Magistrate in respect of the petition of objection of the petitioner dated the 30th November, 1953 is bad on other grounds it is not necessary to deal with this aspect of the matter any further. Mr. Majumdar has argued relying on the decision of this Court reported in Kanai Lal Sethi Vs. Collector of Land Customs, Calcutta, (12) that the petitioner having availed himself of the remedies provided by the Motor Vehicles Act it is not open to him to attack the orders passed under the provisions of the Motor Vehicles Act by the different authorities at different stages under Article 226 of the Constitution and to challenge these various orders from the very beginning. It may be pointed out that in that very case the learned Chief Justice had made it clear that, an applicant for writ can challenge the validity of the appellate orders before the court exercising jurisdiction under Article 226 of the Constitution, if any infirmity of illegality exists in respect of such appellate orders. As my finding is that the Appellate Sub-Committee of the State Transport Authority and the higher Appellate Authority had denied the principles of natural justice by not allowing the petitioner to look into the copy of the police report before they made their orders, there can he no doubt that the present application of the petitioner under Article 226 of the Constitution attacking the validity of the said orders is in order and is maintainable. The orders of the Appellate Authorities being thus bad and illegal it must follow that the resolution of the Regional Transport Authorities elated the 3rd of December, 1953 cannot also be sustained.

In the result, the petition succeeds. The Rule is made absolute. Let a Writ of Certiorari issue quashing the order of the Regional Transport Authorities dated the 3rd December, 1953 and the orders of the Appellate Authorities dated the 4th March, 1954 and 8th June.. 1954 and let a writ of Mandamus issue directing the respondents 1 to 4 and 8 and 9 to forbear from giving effect to such orders.

There will be no order as to costs. Let the status quo be maintained for two months from this date and buses which are already run by respondents Nos. 5, 6 and 7 will be allowed to run for this period of two months.