Research › Browse › Judgment

Gauhati High Court · body

1965 DIGILAW 47 (GAU)

Joharimol Saraogi v. S. Bakhtawar Singh

1965-10-22

RAJVI ROOP SINGH

body1965
ORDER :- In this case the petitioner has moved this Court for grant of a writ under Art. 226 read with Art. 227 of the Constitution for the purpose of calling up and quashing an order of Chief Commissioner the Appellate Transport Authority, dated 12-11-1963, made in an appeal against the order of the State Transport Authority, dated 15-7-1963. 2. The facts material for the disposal of the petition as alleged are that the State Transport Authority, Manipur called for application for the grant of 23 Stage Carriage Permits for different routes including one permit in respect of Imphal Sugnu route by issue of Notice No. Permit 4/61/MV-5646-8 dated 15-3-1963. The petitioner along with 3 others including the respondent No. 1 submitted applications for the grant of Stage Carriage Permit on Imphal-Sugnu route within the period of one month from the date of publication of the said notice in the Manipur Gazette. After the applications were received, they were made available for inspection at the Office of the S. T. A., Manipur, and duly published in the Gazette inviting representation if any, in connection with these applications as laid down in section 57 of the Indian Motor Vehicles Act. It is not disputed that there was no representation made, either by the respondent or any other persons in respect of the application filed by the petitioner. The S. T. A. considered the applications at a meeting held on 15-7-1963 for the purpose and found the petitioner to be suitable and deserving applicant for a Stage Carriage Permit on the said route. Accordingly, the petitioner was informed by a letter under the signatures of the Secretary, that the said authority have been pleased to grant a Stage Carriage Permit on the Imphal-Sugnu route to the petitioner for a period of 3 years with effect from 1-9-1963. The petitioner was directed to place a fit Vehicle on the route against the Permit within one month from the date of the receipt of this notice, failing which the permit was likely to be cancelled, and he was also called upon to clear off taxes and deposit requisite Permit Fee within one month from the date of the receipt of the notice. Thereafter the petitioner got the Bus body constructed at the cost of Rs. 8,500.00 and paid permit fee and taxes and thereafter started plying his Bus on this route. Thereafter the petitioner got the Bus body constructed at the cost of Rs. 8,500.00 and paid permit fee and taxes and thereafter started plying his Bus on this route. In the meantime, the respondent No. 1 whose application for grant of a permit had been refused, preferred an appeal before the Chief Commissioner, the Appellate Tribunal, Manipur. The Chief Commissioner on 12-11-1963 cancelled the Permit granted to the petitioner, and in substitution thereof granted a Permit on the said route to the respondent No. 1. It is against this order that the petition is directed. 3. On behalf of respondent No. 4 the S. T. A., no reply was filed. The respondent No. 1 filed the reply on 11-2-1964 denying all the allegations of the petitioner. In reply it was stated that C. C. while deciding this appeal took into consideration the materials on the record in the light of the provisions of law contained in section 47 of the Act, therefore, this order could not be called illegal or beyond jurisdiction. On behalf of respondents 2 and 3, the reply was filed on 20-3-1964. In reply they admitted all the facts alleged by the petitioner but contended that the Chief Commissioner decided this appeal in accordance with law, therefore, his order could not be called illegal and hence writ is not entertainable. 4. Before dealing with the arguments advanced on both sides, it would be desirable to make reference to certain provisions of the Act concerning the grant of Permits. Section 42 of the Act prohibits an owner of a transport vehicle from using or permitting it to be used in any public place save in accordance with the conditions of a Permit granted by a Regional Transport Authority. Section 43, gives certain power to the State Government to control road transport. Section 44 authorises the State Government to constitute a State Transport Authority as well as a Regional Transport Authority to perform certain functions mentioned therein. Section 46 of the Act provides for an application for a Stage Carriage Permit, and the particulars which have to be mentioned in an application for such a permit. Section 44 authorises the State Government to constitute a State Transport Authority as well as a Regional Transport Authority to perform certain functions mentioned therein. Section 46 of the Act provides for an application for a Stage Carriage Permit, and the particulars which have to be mentioned in an application for such a permit. Section 47 lays down the procedure to be followed by the Regional Transport Authority in considering applications for Stage Carriage Permits and in granting or refusing a Stage Carriage permit, the particulars mentioned in that section have to be considered by the said Authority, some of those factors being: (a) the interest of the public generally, (b) the advantages to the public of the service to be provided, (c) the adequacy of existing road passenger transport services, between the places to be served, etc. Under section 48 of the Act, it is open to the Regional Transport Authority, after consideration of the matters set forth in sub-section (1) of section 47, to restrict the number of Stage Carriages, and impose conditions on Permits granted for the running of such Carriages on particular routes, in other words, the Regional Transport Authority can limit the number of Stage Carriages on any specified route within a region, and impose such other conditions for running Stage Carriages as specified in section 48. Section 57 lays down the procedure in applying for and granting permits. Section 64 enables a person aggrieved by the order of the Regional Transport Authority, with respect to matters mentioned therein, to appeal to the prescribed authority. Section 64 (a) states: "The State Government may, of its own motion or on application made to it, call for the records of any order passed or proceeding taken under this Chapter by any authority or Officer subordinate to it, for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceeding and after examining such records, may pass such order in reference thereto as it thinks fit." 5. Shri T. Bhubon Singh, the learned Advocate appearing for the petitioner has argued that the order of Chief Commissioner dated 12-11-1963 is bad because in making the order the Chief Commissioner has taken into consideration the extraneous and irrelevant matters not germane to the subject. Shri T. Bhubon Singh, the learned Advocate appearing for the petitioner has argued that the order of Chief Commissioner dated 12-11-1963 is bad because in making the order the Chief Commissioner has taken into consideration the extraneous and irrelevant matters not germane to the subject. In order to substantiate his contention he pointed out that the State Transport Authority while inviting applications expressly mentioned in the notice that the weight of the vehicles should not be less than 13440 lbs. and the preference would be given to the newer model of vehicles. The vehicle of the petitioner was 5 tonner (13440 lbs.) of 1959 model while the vehicle of the respondent No. 1 was of 1944 model made of assembled military disposal its weight was also less than 13440 lbs. being a 3 tonner. The State Transport Authority, therefore, in its meeting, D/-15-7-1963 while granting the Stage Carriage Permit to the Petitioner on Imphal-Sugnu Road observed that the vehicle of the respondent No. 1 is of old model and assembled 3 tonner, therefore the chances of break down are obvious. The vehicle of the petitioner is 5 tonner of 1959 model, therefore it ensures better safety and convenience to the travelling public. In this order of the State Transport Authority, there was nothing wrong or illegal as the State Transport Authority granted Stage Carriage Permit solely on the ground of the interest of the travelling public. But the Chief Commissioner while cancelling the permit of the petitioner and granting it to the respondent No. 1 considered the interest of the respondent No. 1 and not that of the travelling public. In this way, the Chief Commissioner violated the conditions laid down under section 47 of the Motor Vehicles Act. 6. The learned Government Advocate and the counsel for the respondent No. 1 in order to meet this argument averred that the respondent 1 was old permit-holder on this route and he was holding the fitness certificate of his vehicle, therefore looking to the hardship of the respondent 1, the Chief Commissioner granted him Stage Carriage Permit. This order of Chief Commissioner was not illegal, irregular or improper. In order to call an order improper, there must be something extraneous to it. Merely, because the Chief Commissioner took a different view of the facts to that of the State Transport Authority would not make his order improper. 7. This order of Chief Commissioner was not illegal, irregular or improper. In order to call an order improper, there must be something extraneous to it. Merely, because the Chief Commissioner took a different view of the facts to that of the State Transport Authority would not make his order improper. 7. It was next urged that however wide the jurisdiction of the High Court might be under Article 226, it could never exercise its powers under the Article in such a manner as to convert itself into a Court of appeal sitting in judgment over every tribunal or authority in the State discharging administrative or quasi-judicial functions. He further maintained that the Motor Vehicles Act with the rules framed thereunder dealing with the grant of permits is a self-contained code and that in respect of the rights and liabilities created by such a statute the manner of enforcement must be sought within the statute itself. It was also urged by him that in any event, the High Court could not substitute its own view or discretion for the view taken or discretion exercised by the specified authorities, even it was erroneous or unsound. In support of his contention he placed reliance on the case. Veerappa Pillai v. Raman and Raman Ltd., AIR 1952 SC 192 . In this case Chandrasekhara Aiyar, J. observed as follows : "Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made. The Motor Vehicles Act is a statute which creates new rights and liabilities and prescribes an elaborate procedure for their regulation. No one is entitled to a permit as of right even if he satisfies all the prescribed conditions. The Motor Vehicles Act is a statute which creates new rights and liabilities and prescribes an elaborate procedure for their regulation. No one is entitled to a permit as of right even if he satisfies all the prescribed conditions. The grant of a permit is entirely within the discretion of the transport authorities and naturally depends on several circumstances which have to be taken into account. There is a complete and precise scheme for regulating the issue of permits, providing what matters are to be taken into consideration as relevant, and prescribing appeals and revision from subordinate bodies to higher authorities. The remedies for the redress of grievances or the correction of errors are found in the statute itself and it is to these remedies that resort must generally be had." 8. The learned counsel for the petitioner in order to meet this contention of the learned Government Advocate said that he has no dispute regarding the principle laid down in this case. But the Chief Commissioner violated the conditions laid down in section 47 of Motor Vehicles Act, therefore his order is improper. 9. After having given my careful and anxious consideration to the arguments raised by Government Advocate and the counsel for the respondent No. 1, I am clearly of opinion that there is no force in them. The Motor Vehicles Act is a statute which creates new rights and liabilities and prescribes an elaborate procedure for their regulation. The grant of a permit is entirely within the discretion of the transport authorities and naturally depends on several circumstances which have to be taken into account. The matters which are to be taken into account in granting or refusing a Stage Carriage Permit are specified in section 47. According to this section, the consideration which should weigh heavily with Transport Authority is the interest of the travelling public. In this case the State Transport Authority granted Stage Carriage Permit to the petitioner keeping in view solely the interest of the travelling public as is evident by the Resolution passed by it which is as follows : "Vehicle Nos. MNS - 2320 and MNS - 2876 are of 1942 and 1959 model vehicles respectively. Since the vehicle No. MNS-2320 is of old model and assembled 3 tonner vehicle chances of break down are obvious. MNS - 2320 and MNS - 2876 are of 1942 and 1959 model vehicles respectively. Since the vehicle No. MNS-2320 is of old model and assembled 3 tonner vehicle chances of break down are obvious. The State Transport Authority feels that the interest of the travelling public would be best served by granting permit to newer i.e., 1959 model vehicle (5 tonner vehicle) as it would ensure better safety and convenience to the travelling public." The Chief Commissioner, on the other hand, not only violated the conditions laid down in the notice given by State Transport Authority, but he overlooked the interest of the travelling public. He granted the Stage Carriage Permit to the respondent 1 as he was an old permit-holder on this route and non-grant of permit would cause hardship to him. But the consideration which should weigh with Transport Authority must be germane to the matter under section 47 of the Motor Vehicles Act. The Chief Commissioner, therefore violated the conditions as laid down in section 47 of the Motor Vehicles Act. In looking to the interest of travelling public he should have seen that such an old vehicle cannot give suitable and comfortable accommodation to the passenger on that route. Besides, in the case of this old vehicle, the chances of break-down or engine trouble were bound to happen in the way. Moreover, in granting permit under section 47 of the Motor Vehicles Act, the fact that any person is political sufferer or is badly in need of money and a previous permit-holder and he would suffer hardship if the permit is not granted to him cannot be said to be a consideration which is germane to the question to be decided. Such matters are quite foreign to the subject under consideration and is totally extraneous and irrelevant consideration. In this case the Chief Commissioner in his order has also observed that the respondent No. 1 produced a fitness certificate of his vehicle, therefore his is a deserving case. But the production of a fitness certificate was one of the conditions of the notice, therefore it should not have weighed heavily with Chief Commissioner while granting the permit. In this case the Chief Commissioner in his order has also observed that the respondent No. 1 produced a fitness certificate of his vehicle, therefore his is a deserving case. But the production of a fitness certificate was one of the conditions of the notice, therefore it should not have weighed heavily with Chief Commissioner while granting the permit. Besides, from the notice of State Transport Authority, produced before the Chief Commissioner in appeal case shows that the respondent No. 1 was asked to produce a new model vehicle within a reasonable period, but he flatly refused to do so, therefore the State Transport Authority was justified to reject his petition. In this case the respondent No. 1 did not produce the fitness certificate before the State Transport Authority which he produced before the Chief Commissioner and he granted the Stage Carriage Permit on its basis. But as a rule, it is not open to the Appellate Authority to go into new factors which were never presented to the Regional Transport Authority and decide the appeal on that basis. The law has provided an appropriate stage where the matter could be canvassed at the instance of the parties concerned, and if advantage is not taken of that earlier, the Appellate Authority cannot, of its own accord, or even at the instance of a party interested, make out a new case for the parties and decide on that assumption. Such a procedure is not only unwarranted in law, but leads to unhealthy precedents. 10. The learned Government Advocate contended that the violation of the conditions of the notice was permissible to the Chief Commissioner. Besides, Chief Commissioner is empowered to relax the conditions laid down in Rule 47 of the Motor Vehicles Act. This contention of the learned Government Advocate is without any merit. The Regional Transport Authority as well as the Appellate Authority is bound to consider the provision of section 47, which is mandatory. 11. The learned counsel for the respondent No. 1 contended that nowhere in the Motor Vehicles Act or the rules framed thereunder, an owner of a Bus is required to ply a vehicle of particular make or model. The Regional Transport Authority as well as the Appellate Authority is bound to consider the provision of section 47, which is mandatory. 11. The learned counsel for the respondent No. 1 contended that nowhere in the Motor Vehicles Act or the rules framed thereunder, an owner of a Bus is required to ply a vehicle of particular make or model. Under Chapter III of the Indian Motor Vehicles Act, section 22 provides that unless a vehicle is registered in accordance with the provisions of that Chapter no owner of the Motor Vehicles shall cause or permit the vehicle to be driven in any public place or in any other place for the purpose of carrying passengers or goods. In the case of a transport vehicle, special particulars are to be recorded on the registration of such vehicles under section 37 of the Act. Under section 38 such transport vehicles must further obtain a certificate of fitness. In the case of this vehicle the certificate of fitness was produced therefore the State Transport Authority was not empowered to refuse Stage Carriage Permit to the respondent No. 1. In support of his argument he placed reliance on the case reported in Mangilal Sharma v. Tribunal of State Transport Authority, Rajasthan, Jaipur AIR 1957 Raj 167 . In this case Bhandari J. observed that the Regional Authority or the State Transport Authority has no right to impose any condition regarding the year of manufacture on the permit issued by them. This argument too does not help the respondent No. 1 in any way. The instant case is distinguishable from the case cited by the lawyers of respondent No. 1. In this case no condition was laid down that the vehicle manufactured, in any particular year will be allowed to ply on the route as was done in that case. The State Transport Authority only laid down the condition that the model should be new one in order to allow comforts and facilities to the travelling public. 12. The counsel for the respondent No. 1 further contended that the petitioner had alternative remedy by way of review or civil suit, but he did not file a civil suit, hence this writ is not maintainable. This contention is without any substance. The existence of an alternative remedy by itself is not an absolute bar to the exercise of power to issue writs. This contention is without any substance. The existence of an alternative remedy by itself is not an absolute bar to the exercise of power to issue writs. It is, however, a factor to be taken into consideration whether the power to issue writ should be exercised in a particular case. But if the Judge declines to issue it keeping in view the existence of an alternative remedy that has not been availed of by the petitioner the order of the Judge cannot be said to be justified. In the instant case the alternative remedy was not so efficacious as the present writ petition is, therefore the petitioner is justified in filing this writ petition. 13. No other argument was pressed before me. 14. From the facts of the case as discussed above, it is manifest that in disposal of the appeal the Appellate Authority travelled beyond his jurisdiction in granting Permit to the respondent No. 1. In the result I hold that the order of the Chief Commissioner granting permit to the respondent No. 1 was not in accordance with law and was in excess of his jurisdiction and it must be quashed by a writ in the nature of certiorari under Article 226 of the Constitution of India. I accordingly allow this application with costs. The respondent No. 1 will pay Rs. 100 as Advocates fee. Petition allowed.