Mohammad Elias v. Ardhendu Mishra — 1965 DIGILAW 28 (PAT)

Judgment G.N.Prasad, J. 1. In this case, the relief which the petitioner seeks is that the order of the Stale Government dated the 11th June 1964 passed by the Minister of Transport under Sec. 64A of the Motor Vehicles Act, 1939 , he quashed by issue of a writ of certiorari under Article 226 of the Constitution. The impugned order, a copy of which is contained in Annexure C/1of the application, was passed in the following circumstances. 2. In 1961, there were five stage carriage services mostly belonging to Messrs. Singhbhum Motor Transport Company, operating between Chakulia and Baharagorah, a distance of about 19 miles, and two more services operating between Chakulia and Jamsola on the same route, Jamsola being about 4 miles away from Baharagorah. On the 30th March 1961, one Anirudh Narain Bush requested the Chotanagpur Regional Transport Authority to create an additional vacancy in the same route, whereupon the Regional Transport Authority called for a report from the Superintendent of Police, Singhbhum. The Superintendent of Police reported on the 26th June 1961 that a further service on the route was necessary. The Regional Transport Authority, however, called for a report from the Deputy Commissioner, Singhbhum, and the latter reported on the 16th October 1961 that the existing services were adequate and no further service was needed to be added. The report of the Deputy Commissioner was considered by the Regional Transport Authority at its meeting held on the 22nd December 1961 and it was decided to create a further vacancy in the route. In pursuance of this decision, an advertisement was made inviting applications from intending bus-operators and six applications for permit were received by the Regional Transport Authority. One of the applicants was the existing operator, Messrs. Singhbhum Motor Transport Company, of which Sri Ardhendu Mishra (respondent No. 1) is one of the partners. All the applications were published in the Bihar Gazette on the 27th June 1962 as required under Section 57 (3) of the Motor Vehicles Act (hereinafter referred to as the Act). In the meantime Ardheudu Mishra (respondent No. 1) filed a representation before the Regional Transport Authority opposing the creation of an additional vacancy in the route on the ground that the existing services were quite adequate and the creation of an additional service would lead to cut-throat competition and tell adversely upon the efficiency of the existing services. In the meantime Ardheudu Mishra (respondent No. 1) filed a representation before the Regional Transport Authority opposing the creation of an additional vacancy in the route on the ground that the existing services were quite adequate and the creation of an additional service would lead to cut-throat competition and tell adversely upon the efficiency of the existing services. It appears that the State Government also directed the Regional Transport Authority to consider whether the creation of an additional vacancy in the route was desirable. The matter was reconsidered by the Regional Transport Authority at their meeting held on the 13th May 1963, and on that occasion, the Deputy Commissioner, besides a non-official member from Singhbhum, expressed himself in favour of creation of an additional service on the route. 3. All the six applications received in response to the advertisement and the representation of Shri Ardhendu Mishra (respondent No. 1) came to be considered by the Regional Transport Authority on the 1st July 1963. On that occasion, the present petitioner, who was one of the applicants, alone appeared for the grant of the permit, and the Regional Transport Authority granted the permit to the petitioner in spite of vehement opposition put forward by respondent No. 1. 4. Against the order of the Regional Transport Authority dated the 1st July 1963, two appeals were filed under Sec. 64 of the Act before the Appeal Board, One set of the appeals was filed under Clause (a) of Sec. 64 by two of the applicants for permit, substantially on the ground that they were unable to appear before the Regional Transport Authority in support of their application for permit because the notice of the date of the meeting was served upon them after the meeting had already been held on the 1st July 1963. The other appeal was filed under Clause (f) of Section 84, by the respondent No. 1, reiterating his opposition to the grant of the permit on the ground that an additional service on the route was not called for. The other appeal was filed under Clause (f) of Section 84, by the respondent No. 1, reiterating his opposition to the grant of the permit on the ground that an additional service on the route was not called for. The order of the Appeal Board dated the 9th November 1963, a copy of which is to be found in Annexure B to the present application, shows that the grievance of the two applicants who had no notice of the meeting of the Regional Transport Authority was upheld by the Appeal Board which decided to examine their applications on merits, and upon such examination the Appeal Board came to the conclusion that their application for grant of stage carriage permit was not fit to be allowed. The appeal of respondent No. 1 was also dismissed because the Appeal Board did not like to interfere with the decision of the Regional Transport Authority on the question as to the need of transport on a particular route within their jurisdiction. 5. Being aggrieved by the aforesaid order of the Appeal Board, Sri Ardhendu Mishra (respondent No. 1) filed an application to the State Government under Section 64A of the Act, and it was upon that application that the impugned order was passed by the Minister of Transport on the 11th June 1964. A perusal of the Ministers order shows that he was not satisfied that the Regional Transport Authority had "proceeded in this case quite carefully and judicially", firstly because, the notice of the date of their meeting was not served upon sonic of the applicants in time, and, secondly because, the materials before him did not appear to be sufficient "to show that the Chotanagpur R. T. A. made any serious efforts to find out, whether or not, there was really a need for an additional service. It is, therefore, difficult to understand on what materials it can be said that the existing services are not adequate". In this connection the Minister noticed that the attitude taken by the Deputy Commissioner at the meeting of the Regional Transport Authority held on the 13th May 1963 was in contradiction with his earlier report dated the 16th October 1961 to the effect that the existing services were adequate and no further service was needed to be added in the route. In this view of the matter, the Minister set aside the order of the Regional Transport Authority and the Appeal Board referred to above, and sent "the entire case back to the R. T. A, for de novo consideration with a direction that "the R. T. A. after having satisfied itself as to the need for an additional service after obtaining the views of the Deputy Commissioner shall hear all the applicants afresh and then dispose of the matter according to the provisions of law". 6. The petitioner thereupon came up to this Court with a prayer to quash the order of the Minister dated the 11th June 1964, as mentioned already, joining the Transport Minister, Bihar, as respondent No. 2 to his application. In pursuance of the rule issued by this Court, the respondents have appeared and shown cause and the question for consideration is whether a case has been made out for issue of a writ of ceritorari as prayed for on behalf of the petitioner. 7. Mr. Basudev Prasad who appeared in support of the application has challenged the validity of the Ministers order on several grounds. His first contention is that while disposing of the application in revision filed by respondent No. 1 under Sec. 64A of the Act, the Minister was not entitled to reopen the question as to whether an additional service in the route was necessary or not, inasmuch as this question had become final by the decision of the Regional Transport Authority taken on the 22nd December 1961 and reiterated on the 13th May 1961. In this context, the learned counsel stressed the point that there were two stages of the proceeding before the Regional Transport Authority. At the first stage, the Regional Transport Authority had to decide upon the adequacy of the existing services operating on the route, and having once come to the conclusion that an additional service on the route was necessary, the only question that remained to be considered by the Regional Transport Authority, at the second stage, was to decide which of the several applicants before it should be granted the necessary permit. The decision of the Regional Transport Authority as to the first stage had become final and it could not be re-opened even by the Regional Transport Authority at the second stage of the proceeding before it while considering the applications for grant of permit received in pursuance of the advertisement under Sec. 57 (3) of the Act. Therefore, when the Regional Transport Authority itself could not reopen its decision as to the necessity for an additional service which had become final it was not competent to the Transport Minister to ask for a reconsideration of the same matter in exercise or his power of interference under Sec. 64A of the Act. In support of his contention, the learned counsel placed strong reliance upon the decision of the Supreme Court in Abdul Mateen V/s. Ram Kailash Pandey, AIR 1963 S C 64. 8. It is manifest that the considerations which Mr. Basudev Prasad would like us to apply here are those which would be relevant in a case where a new stage carriage route is being opened for the first time and an advertisement is issued calling for applications for such a new route specifying the number of vacancies for it. In such a case, it might well be assumed, as was done in Abdul Mateens case, AIR 1963 S C 64 that the Regional Transport Authority before calling for application has come to a final decision contemplated by Sec. 47 (3) of the Act as to the total number of services which it would allow to operate on the proposed new route. But where the question before the Transport Authority is not the creation of a new route, but, as in the present case, of providing an additional service in an existing route, the Regional Transport Authority has also to take into consideration, as the latter part of Sec. 47 (1) clearly provides "any representations made by persons already providing passenger transport facilities by any means along or near the proposed route or area.........or by any local authority or police authority within whose jurisdiction any part of the proposed route or area lies." Therefore, the objection which respondent No. 1 had put forward before the Regional Transport Authority had to he disposed of according to law before the said Authority finally decided to grant a stage permit under Sec. 48 of the Act. There would be no scope for such representation on behalf of persons already providing passenger transport facilities in the case of an entirely new route proposed to be opened for the first time, and it was substantially for this reason that their Lordships of the Supreme Court in Abdul Mateens case, AIR 1963 S C 64 observed that after passing a general order under Sec. 47 (3) limiting the number of stage carriages on any specified route, all that remains for the Regional Transport Authority is to choose between various applicants in the matter of granting permits or refusing to grant permits under Sec. 48 of the Act. But the materials before us do not show that any such general order under Sec. 47 (3) of the Act had been passed by the Regional Transport Authority prior to the 1st July 1963 after taking into consideration the representation which respondent No. 1 had made to it on the ground that the creation of an additional service on the route would lead to cut-throat competition and tell adversely upon the efficiency of the existing services. The decision which the Regional Transport Authority took on the 22nd December 1961 was not taken after consideration of the representation made by respondent No. 1. In fact, there is nothing to show that until that stage any public notice was issued by the Regional Transport Authority that it was proposing to create an additional vacancy in the existing route between Chakulia and Baharagorah. Therefore, when the Regional Transport Authority decided to issue an advertisement for inviting applications from intending bus-operators, it had not done so after taking into consideration any representation which might have been made to it by person or persons already providing passenger transport facilities on that route. It was only after the publication of the advertisement that respondent No. 1 was in a position to make his representation as contemplated by the latter part of Sec. 47 (1) of the Act. I am, therefore, unable to accept the contention of Mr. Basudev Prasad that the decision of the Regional Transport Authority to invite applications from intending bus operators was in pursuance of its final decision to create an additional vacancy in that route after considering all the matters mentioned in Sec. 47(1) of the Act. I am, therefore, unable to accept the contention of Mr. Basudev Prasad that the decision of the Regional Transport Authority to invite applications from intending bus operators was in pursuance of its final decision to create an additional vacancy in that route after considering all the matters mentioned in Sec. 47(1) of the Act. It is clear that the advertisement was made before the Regional Transport Authority had considered the point of view of person or persons who were already running stage carriage services on the route. At this stage, reference may Be made to Sub-sections (3) and (5) of Sec. 57 of the Act which contemplate that representations in connection with applications for a stage carriage permit may be submitted within a specified time after publication of the application for such a permit and provide for consideration of all such representations at a public hearing of the Regional Transport Authority. Therefore, it was at this stage that respondent No. 1 was afforded the opportunity of making his representation which had to be disposed of in accordance with Sec. 57 (5) of the Act. That is why, we find that the Regional Transport Authority had to reconsider the question of creating an additional vacancy in the route at their meeting held on the 13th May 1963. But the text of the order of the 13th May 1963 has not been made available to us, and there is no material before us to show that it was passed at a public hearing, or after due consideration of the representation which respondent No. 1 had made to it. In all probability, as the Ministers order would indicate, it merely proceeded upon the views expressed at the meeting of the Deputy Commissioner and one non-official member from Singhbhum. I am, therefore, not satisfied that prior to the 1st July 1983, the Regional Transport Authority had lawfully disposed of the representation made to it by respondent No. 1 under the latter part of Sec. 47 (1). The final decision of the Regional Transport Authority upon the representation of respondent No. 1 was given on the 1st July 1963, that is to say, on the very day on which it decided to grant the permit to the petitioner. I, therefore, think that Mr. The final decision of the Regional Transport Authority upon the representation of respondent No. 1 was given on the 1st July 1963, that is to say, on the very day on which it decided to grant the permit to the petitioner. I, therefore, think that Mr. Basudev Prasad is not right in his submission that the first stage of the proceeding before the Regional Transport Authority, namely, the stage contemplated by Sec. 47 of the Act had come to an end prior to the 1st July 1963, or that all that was necessary for the Regional Transport Authority to do on the 1st July 1963 was to choose between the various applicants in the matter of granting the permit. In my view, both the stages which Mr. Basudeva Prasad has in mind were over-lapping on the 1st July 1963, and in truth both the stages of the proceeding before the Regional Transport Authority were concluded on the same day. Therefore, the present case is distinguishable on facts from Abdul Mateens case, A I R 1963 S C 84 which has been relied upon by the learned counsel. As already indicated, that was a case of an entirely new route, and their Lordships were not called upon to consider the effect of the provisions of the latter part of Sec. 47 (1) and Sec. 57 (5) of the Act. So the ratio of that case is not applicable to the facts of the present case. 9. It will further appear that the limitation which Mr. Basudev Prasad would like us to put upon the Ministers power of interference under Sec. 64-A of the Act is not justified on the plain words of the section. So the ratio of that case is not applicable to the facts of the present case. 9. It will further appear that the limitation which Mr. Basudev Prasad would like us to put upon the Ministers power of interference under Sec. 64-A of the Act is not justified on the plain words of the section. This section, inserted in the Act by Bihar Act 27 of 1950 and as amended by Bihar Act 1 of 1954, reads : "The State Government may, on application made to it in this behalf, within thirty days of the passing of the order in the course of any proceeding taken under this Chapter by any authority or officer call for the record of such proceeding, and after examining such record, pass such order as it thinks fit." Upon the terms of the section, therefore, it was competent for the Transport Minister to satisfy himself as to the legality, regularity and propriety of all orders passed by the Regional Transport Authority under the various sections included in Chapter IV of the Act, that is to say, Sections 42 to 57. It follows that while considering the legality, regularity and propriety of the order of the Regional Transport Authority dated the 1st July 1963, it was open to the Transport Minister to examine whether the objection put forward by respondent No. 1 had: been properly disposed of or not. For this purpose, it was open to the Minister to examine the ground upon which the Regional Transport Authority had rejected the representation made to it by respondent No. 1, and if upon such examination, the Minister came to the conclusion that the ground was not valid or proper for any reason, then it was within his jurisdiction to interfere and to pass such order in regard to it as he thought fit. In the present case, the Minister did not substitute his own decision for the decision of the Regional Transport Authority. What he did was that he sent the case back to the Regional Transport Authority, because upon examining the records of the proceeding, he was not satisfied that the Regional Transport Authority had made any serious effort to find out whether or not there was really a need for an additional service in the route. What he did was that he sent the case back to the Regional Transport Authority, because upon examining the records of the proceeding, he was not satisfied that the Regional Transport Authority had made any serious effort to find out whether or not there was really a need for an additional service in the route. The Minister had to go into this matter for the simple reason that this was the ground upon which the Regional Transport Authority had rejected the representation of respondent No. 1. I am, therefore, of the opinion that the order of the Transport Minister was not in excess of his jurisdiction as suggested by the learned counsel. 10. The second contention of Mr. Basudeva Prasad is that the revisional power of the Minister under Sec. 64A of the Act would be attracted only if there is patent error of law in the order of the Regional Transport Authority in consequence of which there has been a failure of justice. It is urged that the Minister is not entitled to interfere, as he has done in the present case, with a decision on a question of fact. This contention again is not borne out upon the wide terms of Sec. 64A which empowers the Transport Minister to pass such order as he thinks fit in an appropriate case. The section does not say that the power of interference can be exercised only where there is a patent error of law leading to failure of justice. The power conferred upon the State Government by Section 64A of the Act was the subject-matter of consideration by their Lordships of the Supreme Court in the case of Ram Narain Singh V/s. Dalip Singh Balwant Singh, Civil Appeal No. 99 of 1964, D/- 25-2-1964 (SC) and it was observed therein as follows : "It is true that Sec. 64A does not confer a right of appeal but the power conferred by it upon the State Government, which is apparently exercisable by the Minister of Transport to call for the records of a proceeding under Chapter IV of the Act and the power to pass such order or orders as it thinks fit after examining the records is wide enough to permit the revisional authority to interfere in its discretion with a finding of fact of the subordinate authority. The Minister, therefore, in interfering with a finding, of fact cannot be said to have acted beyond his jurisdiction," I have, therefore, no hesitation in rejecting the contention of the learned counsel, 11 The third ground upon which the Ministers order was sought to be assailed before us is that the Minister committed an error of record when he observed that there were not sufficient materials to show that the Regional Transport Authority had made any serious effort to find out whether there was a need for an additional service or not. It was urged that this observation of the Minister was in conflict with what he himself said in paragraph 2 of his order, namely, that the question of creation of an additional vacancy was reconsidered by the Regional Transport Authority at their meeting held on the 13th May 1963 and it appeared that at that meeting both the Deputy Commissioner and a non-official member of Singhbhum had expressed their view in favour of grant of an additional service on the route. This fact was mentioned by the Minister in the earlier part of his order while reciting the facts of the case. But the subsequent observation which, according to Mr. Basudev Prasad, constitutes an error of record, was evidently made after examining the entire record, including the record of the proceeding of the meet- ting of the Regional Transport Authority held on the 13th May 1963. As I have already said, the proceeding of that meeting is not before us and, therefore, we are not in a position to say that the Minister was in error when he came to the conclusion that the materials before him did not appear to be sufficient to indicate that the Regional Transport Authority had made any serious effort to find out whether an additional service on the route was really needed or not. Evidently, the Minister after examining the entire record took the view that the expression of opinion orally made by the Deputy Commissioner and non-official member from Singhbhum in the context of the written report which the Deputy Commissioner had submitted on the 18th October 1981 was not a sufficient material to justify a conclusion that an additional service was really needed on the route. Nevertheless, the Minister did not hold affirmatively that such an additional service was not necessary. Nevertheless, the Minister did not hold affirmatively that such an additional service was not necessary. All that he did was to direct the Regional Transport Authority to re-examine the question more carefully and then decide in the light of all available materials, including the representations of persons whose interests were likely to be affected, whether the creation of an additional vacancy in the route was really needed or not. In the circumstances, it is difficult to accept the contention of the learned counsel that the order of the Transport Minister suffers from an error of record, 12. Finally, Mr. Basudev- Prasad drew our attention to Sub-section (2) of Sec.134 of the Act which lays down that : "No order made by a competent authority under this Act shall be reversed or altered on appeal or revision on account any error, omission or irregularity in the proceedings, unless it appears to the prescribed appellate authority or revisional authority, as the case may be, that such error, omission or irregularity has, in fact, occasioned a failure of Justice." It was urged that the Minister could have exercised his revisional jurisdiction only if he came to the conclusion that there was a failure of justice. But upon the plain terms of Sec.134 (2), this argument must fail because the Minister has not "reversed or altered" the order of the Regional Transport Authority by substituting for it a final order of his own, but has merely directed the Regional Transport Authority to come to its decision after a full consideration of all materials on the record. In my opinion, the generality of the provision contained in Sec.134 (2) cannot override the particularity of the power vested in the State Government under Sec. 64A of the Act of passing such order as it thinks fit in an appropriate case, 13 All the grounds put forward by Mr. Basudev Prasad against the validity of the impugned order are thus overruled and it must be held that the petitioner has failed to make out a case for issue of a writ from this Court. The application is accordingly dismissed. The petitioner must pay a consolidated sum of Rs. 100.00 to respondent No. 1 as cost of this application, Choudhary, J. 14 I agree.