Ismail Sait v. State — 1952 DIGILAW 42 (KER)

Judgment :- 1. This is a petition under Art. 226 of the Constitution of India and S. 18(2) of the Travancore-Cochin High Court Act V of 1125, for a writ of certiorari. The 1st petitioner is the Managing Director of the Motor Service Syndicate Ltd. Alleppey. That Syndicate holds permit to run two Stage Carriages between Haripad and Kozhencheri and one Stage Carriage between Haripad and Thattarambalam. The 2nd petitioner is the Secretary of the Automobile Corporation Ltd., Mavelikara. That company holds permit to run a Stage Carriage between Harripad and Kozhencherry and two Stage Carriages between Harripad and Thattarambalam. The 5th counter-petitioner applied to the Travancore-Cochin State Transport Authority for permit to run two Stage Carriages one between Harripad and Kozhencherri and the other between Haripad and Mundakkayam. The two applications were duly notified in the Government Gazette of 2nd May 1950. The application relating to the Harripad-Mundakkayam line was notified as R.O.C. No. 302 MRB/50 and that relating to the Haripad-Kozhencheri line as R.O.C. No. 306/MRB/50. In the application and in the Notification relating to the Haripad-Mundakkayam line the route was described as "via Pandalam-Pathanamthitta and Ranni". The Notifications intimated that representations if any, against the granting of Stage Carriage permits on the above routes should reach the office of the Transport Authority within 15 days from the date of the Notifications. The petitioners and others submitted to the Transport Authority their objections to the granting of the permits applied for by the 5th counter-petitioner. The Transport Authority granted permits to the 5th counter-petitioner to run two Stage Carriages daily between Haripad and Kozhencherri. The petitioners appealed to the Government from this decision. The Government confirmed the decision of the Transport Authority and dismissed the appeal. The present petition is for quashing the orders of the Transport Authority and the Government. 2. Learned counsel for the petitioners did not press the petition as regards the permit granted under the application notified as R.O.C. 306 MRB/50. He conceded that the Transport Authority acted within its jurisdiction in granting that application, although according to him the Transport Authority did not exercise its discretion properly in granting the same. 3. With regard to the application No. 302 MRB/50 it was strenuously argued by learned counsel for the petitioners that the Transport Authority exceeded its jurisdiction in granting a permit under that application for running a Stage Carriage between Pathanamthitta and Kozhencherri. 3. With regard to the application No. 302 MRB/50 it was strenuously argued by learned counsel for the petitioners that the Transport Authority exceeded its jurisdiction in granting a permit under that application for running a Stage Carriage between Pathanamthitta and Kozhencherri. The ground urged is that the application was for permit to run a Stage Carriage between Haripad and Mundakkayam via Pandalam, Pathanamthitta and Ranni, while the permit granted by the Transport Authority was for service between Haripad and Kozhencherry. Kozhencherry is not on the Haripad-Mundakkayam line. Kozhencherri is about 8 miles to the north east of Pathanamthitta. The petitioner's case is that the granting of permit to the 5th counter-petitioner to run one more Stage Carriage between Pathanamthitta and Kozhencherri has prejudicially affected their existing service between these two places. It is argued that since the 5th counter-petitioner had not in his application as R.O.C. No. 302 asked for permit for service in that line the petitioners had no opportunity to make any representation before the Transport Authority in respect of that matter. 4. The Transport Authority is a body constituted under the Motor Vehicles Act. Under S. 42 of the Act every application for Stage Carriage permit has to be made to the Transport Authority. S. 43 provides the manner in which an application should be made. S.44 provides that the Transport Authority should have regard to the matters mentioned in that section in deciding whether to grant or refuse a Stage Carriage permit. One of such matters is "the adequacy of existing road passenger transport services between the places to be served, the fares charged by those services and the effect upon these services of the service proposed." The section also provides that the Transport Authority shall "take into consideration any representations made by persons already providing road transport facilities along or near the proposed route or routes". S. 54 prescribes the procedure to be adopted by the Transport Authority in disposing of an application for a Stage Carriage permit. S. 54 prescribes the procedure to be adopted by the Transport Authority in disposing of an application for a Stage Carriage permit. Sub-s. (3) of that section provides thus: "On receipt of an application for a stage carriage permit or a public carriage permit the 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 a notice of the date before which representations in connection therewith may be submitted and the date not being less than thirty days from such application on which, and the time and place at which, the application and any representations received will be considered." Sub-s. (4) says that: "No representation in connection with an application referred to in sub-s. [3] shall he considered by the Transport Authority unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the person making such representation." Sub-s. 5 provides that: "When any representation such as is referred to in Sub-s. 3 is made, the Transport Authority shall dispose of the application at a public hearing at which the applicant and the person making the representation shall have an opportunity of being heard either in person or by a duly authorised representative." 5. It is clear from these provisions that under the Motor Vehicles Act, when an application for a Stage Carriage permit is made, persons who are already conducting services along or near the proposed route have got a right to make a representation in respect of the application and to be heard on the matter. The Transport Authority has no power under the statute to grant a Stage Carriage permit without complying with the provisions of Ss. 44 and 54 of the Act. It was argued by the learned Advocate General that those provisions are only directorly and not mandatory. I do not think that it is so. The Transport Authority is a body created by the statute and it has to function within the framework of the statute. 44 and 54 of the Act. It was argued by the learned Advocate General that those provisions are only directorly and not mandatory. I do not think that it is so. The Transport Authority is a body created by the statute and it has to function within the framework of the statute. When the statute gives a right to a particular class of persons to make representations in respect of an application for a Stage Carriage permit and also provides that the Transport Authority shall take into consideration such representations before granting a permit the Transport Authority is bound to comply with those provisions before granting the permit. 6. S.43 of the Act says that an application for a Stage Carriage permit should contain the route or routes on which the vehicle is intended to be used. The route is obviously the most important factor to be taken into consideration in granting or refusing the permit. It will be in respect of the route that persons who already conduct transport services may have to make representations before the Transport Authority. It is the application containing the proposed route that is published in the Gazette and it is in respect of that application that representations, if any, are invited by the Transport Authority. It is therefore clear that the Transport Authority has no power under the Act to grant a Stage Carriage permit for a route not contained in the application. There is nothing in the Motor Vehicles Act to show that the Transport Authority has got power to grant a Stage Carriage permit in respect of a route not covered by the application. 7. It was argued by the learned Advocate General that in this particular case the major portion of the route in respect of which the permit was granted is covered by the application. I do not think that this will amount to a compliance with the provisions of the statute. The Transport Authority may have power to curtail the route mentioned in the application since the curtailed route itself will be a part of the route mentioned in the application. But to allow a deviation and to include a new route in the permit will be as good as granting a permit without an application. The result of accepting the argument of the learned Advocate General will be to nullify the effect of the provisions of Ss. But to allow a deviation and to include a new route in the permit will be as good as granting a permit without an application. The result of accepting the argument of the learned Advocate General will be to nullify the effect of the provisions of Ss. 43, 44 and 54 of the Motor Vehicles Act. A person may apply for permit for a route, say, between Alwaye and Kottayam and the Transport Authority may grant a permit for a route between Alwaye and Munnar or again between Alwaye and Kottarakkara. In one case it may be said to be only a deviation and in the other only an extension of the route mentioned in the application. This will certainly defeat the object of the statute in giving an opportunity to persons who conduct transport services along or near the route for which a Stage Carriage permit is granted to make representations in respect of the matter. 8. I am therefore of opinion that the Transport Authority has violated the provisions of the Motor Vehicles Act and has exceeded its jurisdiction in granting a Stage Carriage permit to the 5th counter-petitioner for running a Stage Carriage between Pathanamthitta and Kozhencherri as per his application notified as R.O.C. No. 302 MRB/50. It is not disputed that the Transport Authority was functioning as a quasi judicial body when dealing with the application for the Stage Carriage permit. When such a body has violated the provisions of the statute by which it is created this court has certainly the power to issue a writ of certiorari under Art. 226 of the Constitution of India. Reference may be made in this connection to the following observation of Chakravarthy, J. in Majhi v. Maity A.I.R. 1951 Cal. 574: "Where a tribunal has been set up under a Special Act, it is the duty of this Court to see, in the exercise of its power of superintendence that such tribunal acts within the limits of the statute creating it and applies correctly and properly the laws it is authorised to administer." 9. Avadhesh Pratap Singh v. U.P. State, A.I.R. 1952 Allahabad 63, was a more or less similar case. Under the U.P. Court of Wards Act, the State Government and the Court of Wards were vested with legal authority to determine questions affecting the rights of third persons. Avadhesh Pratap Singh v. U.P. State, A.I.R. 1952 Allahabad 63, was a more or less similar case. Under the U.P. Court of Wards Act, the State Government and the Court of Wards were vested with legal authority to determine questions affecting the rights of third persons. In making a declaration affecting the petitioner Government did not give the petitioner an adequate opportunity of showing cause why such a declaration should not be made. It was held that Government failed to follow the procedure laid down in the statute and that therefore it exceeded its jurisdiction in making the declaration. The High Court acted under Art. 226 of the Constitution and quashed the decision made by Government. In Province of Bombay v. Khusaldas,1950 S.C. 222 Kania, C.J., quoted with approval the following observation of Atkin, L.J. in King v. The Electricity Commissioners (1924) 1 K.B. 171, namely: "Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs." Reference may also be made to the following observations of Malik, C.J. in Motilal v. Uttar Pradesh Government A.I.R. 1951 Allahabad 257 (F.B.) which also was a case under the Motor Vehicles Act: "A licensing authority in which term the Regional Transport Authority issuing permits might be included, is, as I have already said, a quasi-judicial body and it must, in dealing with applications for permit, bring to bear an independent and an impartial mind of its own and act in accordance with the provisions of Ss. 47 and 48 of the Motor Vehicles Act." His Lordship quoted with approval the following observations of Farwell, L.J. in The King v. Board of Education (1910) 2 K.B. 165 at P. 170. "The point is of very great importance in these latter days, when so many Acts of Parliament refer questions of great public importance to some Government department. Such department when so entrusted becomes a tribunal charged with the performance of a public duty, and as such amenable to the jurisdiction of the High Court, within the limits now well established by law. Such department when so entrusted becomes a tribunal charged with the performance of a public duty, and as such amenable to the jurisdiction of the High Court, within the limits now well established by law. If the tribunal has exercised the discretion entrusted to it bonafide not influenced by extraneous or irrelevant considerations, and not arbitrarily or illegally, the Courts cannot interfere. They are not a Court of Appeal from the tribunal, but they have power to prevent the intentional usurpation or mistaken assumption of a jurisdiction beyond that given to the tribunal by law, and also the refusal of their true jurisdiction by the adoption of considerations in arriving at the conclusion or deciding a point other than that brought before them, in which cases the courts have regarded them as declining jurisdiction." His Lordship then proceeds thus: "There can be no doubt that the Provincial and the Regional Transport Authorities have to determine the question whether a permit should or should not be issued in accordance with the provisions of the Motor Vehicles Act and the Rules made thereunder. Any reason, which is not a valid reason under the provisions of Motor Vehicles Act, cannot be taken by them into consideration. What matters they must consider before issuing or refusing to issue, a permit are set out in the Motor Vehicle Act and the Rules made thereunder, and it is not necessary for me to attempt to reproduce them here. The learned Advocate General has admitted that the Provincial and the Regional Transport Authority must act in accordance with the provisions of the Motor Vehicles Act; and he has further conceded that if an application for a permanent permit was filed before the Transport Authorities the Regional Transport Authorities must consider the same in accordance with the provisions of the Motor Vehicles Act." 10. I have no doubt that in this case the Transport Authority has not acted in accordance with the provisions of the Motor Vehicles Act in disposing of the application of the 5th counter petitioner referred to in the Notification as R.O.C. No. 302, MRB/50. I have no doubt that in this case the Transport Authority has not acted in accordance with the provisions of the Motor Vehicles Act in disposing of the application of the 5th counter petitioner referred to in the Notification as R.O.C. No. 302, MRB/50. I therefore quash the order of the Transport Authority, and that of Government confirming that order, granting Stage Carriage permit to the 5th counter-petitioner on the basis of his application notified as R.O.C. No. 302 MRB/50 in so far as the permit allows him to run a Stage Carriage between Pathanamthitta and Kozhencherri. The petition is allowed to this extent and dismissed in other respects. 11. There will be no order as to costs. Allowed.