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1968 DIGILAW 79 (CAL)

DILIP KUMAR DUTTA v. R. T. A. , HOOGHLY

1968-05-06

DURGADAS BASU

body1968
DURGADAS BASU, J. ( 1 ) THE petitioners, 15 in number, are existing operators on Bus Route No. 17, Chinsurah to Tarakeswar, and their association has been brought on the record as Petitioner No. 16. The 15 operators are stated to be plying 15 buses on the route. The R. T. A. , Hooghly (Respondent No. 1) published a notice inviting application for 5 additional buses on the said route, to be submitted by February 24, 1964 (Annex. A, p. 17 ). The petitioner's case is that they submitted objections to the aforesaid proposal in the R. T. A. 's Office on February 24, 1964, on the ground of injury to their interests, but that the R. T. A. gave no notice of the date of hearing of the of the petitioner's objections nor gave them and hearing; that without a hearing on the 95 applications for the additional permits, on October 8, 1964, the R. T. A. granted 5 additional stage carriage permits to opposite parties 2-9 by the resolution at Annex. A (p. 20 ). ( 2 ) THIS Rule has been obtained against the impugned resolution of the R. T. A. challenging its validity on various grounds. It is opposed by separate affidavits by Respondent No. 1, by Respondent Nos. 2-4, 8 and by Respondent No. 9. ( 3 ) THE first ground urged on behalf of the petitioners is that the R. T. A. , in disposing of the applications for the additional permits, did not comply with the requirements of Section 57 of the Act. ( 4 ) SUB-SECTION (3) of Section 57, which has been held to be a procedural provision in (1) Baluram v. S. T. A. A. , (1968) SC, CA No. 727/65 dated March 22, 1968, unreported requires that, when an application for a stage carriage permits is received, the R. T. A. shall - (a) make the application available for inspection at his office; (b) publish the application or a substance thereof in the prescribed manner; (c) such publication must contain a notice of the date, not being less than 30 days from such publication, before which representations against the application may be submitted; and the date and place fixed for hearing of the application and the representations. ( 5 ) THE petitioners' case is that no notice fixing the date and place of hearing of (a) the 95 applications for additional permits or (b) the representations submitted by the petitioners against these applications was published by the R. T. A. before making the impugned resolution. ( 6 ) BUT certain facts in this connection are admitted in the petition itself: (i) In paras 3-4 of the petition it is stated that, as the initial step, the R. T. A. published the notice at Annex A in a local Weekly, inviting applications for 5 additional stage carriage permits, to be submitted by February 24,1964. This notice appears to have been issued under Section 57 (2) of the Act. Though there is no scope for the submission of any representation or objection at this stage, the petitioners' case is that the petitioners 1-15 filed objections at the office of the R. T. A. on or about February 24, 1964, a specimen of which is to be found at Annex. A to the petition, pp. 18-19. (ii) It is further admitted in para 5 of the petition that the R. T. A. Published another notice in the said Bengali Weekly, inviting objections to the grant of the additional permits in respect of which 95 applications had been submitted. From the affidavit of the respondents it appears that by this notice, May 28, 1964, was fixed as the date for submitting representations or objections against the application for the additional permits. ( 7 ) THE petitioners' complaint is that the R. T. A. disposed of the said applications for additional permits without hearing the objections filed by the petitioners on or about February 24, 1964, and without even announcing the date or place where the objections would be heard. ( 8 ) AS regards announcing the date etc. for consideration of the objections, it is stated in para 10 of the counter-affidavit of the respondents that a notice fixing October 8, 1964, as the date of the meeting where the applications and objections would be considered was published in the notice board of the R. T. A. 's Office, in accordance with the requirements of Rule 57 (a) of the Rules made under the Act (hereinafter referred to as 'the Rules' ). Excepting a bare denial in the affidavit-in-reply there is no material before the Court to rebut the presumption that the official course of action was duly followed in this case. ( 9 ) RESPONDENTS further contend that no valid objections were filed in response to the notice inviting objections and, hence, no objections required to be considered at the meeting held on October 8, 1964 (Annex. A, p. 20, to the petition ). The petitioners do not contend that anybody other than the petitioners did file any objection. ( 10 ) THE controversy between the parties has arisen upon the question whether the objections filed by the petitioners, of which a specimen is reproduced at Annex A to the petition (p. 18), is such an objection as requires consideration under sub-sections (3) to (5) of Section 57. According to the respondents the answer to this question is in the negative and that is correct. ( 11 ) THE reason is that under Section 57 (3) the 'representations' are to be submitted against the applications for permit after they are filed. What the petitioners did by their objection at Anne. A (p. 18) was not to object to the granting of any of the applications in particular, but to oppose the proposal to grant 5 additional permits for which applications had been invited by the earlier notice at p. 17 of Annex. A. There is no scope for hearing any such objection under sub-sections (3) to (5) of Section 57 which relate to stage carriage permits. ( 12 ) IN short, the objection that the granting of additional permits will injure the existing operators by increasing competition is foregoing to the procedure laid down in Section 57. It is, however, contended on behalf of the petitioners that R. T. A. was bound to consider such objection under the general provisions of Section 47. Assuming that this is a relevant consideration, in the instant case, this factor had indeed been considered long before the invitation for the 5 additional permits was issued. The fixation of the quota of permits to be granted on any route takes place under sub-section (3) of Section 47 which was inserted into the Statute in 1956. It appears from Annex. The fixation of the quota of permits to be granted on any route takes place under sub-section (3) of Section 47 which was inserted into the Statute in 1956. It appears from Annex. A to the counter-affidavit of the R. T. A. (para 3) that as early as 1957 the R. T. A. , with the concurrence of the S. T. A. , decided to sanction 20 permits for the disputed route and that out of the 20 vacancies only 10 were instantly granted since the route was not yet completed. Paragraph 3 of the counter-affidavit of the other respondents discloses that the petitioners themselves got their permits by applying against those immediate vacancies out of the sanctioned strength of 20. This is corroborated by the notice dated September 2, 1957, published in the Chinsurah Bartabaha, which has been produced before me. At a subsequent stage, 5 more permits were granted to petitioners 3-7 and it is for the remaining 5 of the 20 sanctioned vacancies that the advertisement was issued on the present occasion and that is objected to by the petitioners. ( 13 ) THERE is no provision in the Act or the Rules for hearing objections for the purpose of fixing the quota of permits under Section 47 (3 ). What is more important is the recent Supreme Court decision in Baluram v. S. T. A. A. (Supra), following in (2) Abdul Mateen v. Ram Kailash, (1963) 3 SCR 523 , that the fixation of the limit under Section 47 (3) is antecedent to the granting of permits under Section 48, read with Section 57 and that, at the latter stage the R. T. A. has to act subject to the limit so fixed and cannot reopen it. It follows, therefore, that it was not competent for the R. T. A. to entertain the petitioners' objection at Annex. A to reopen the decision to grant 20 permits in this route which had long been taken and it is on the basis thereof that the petitioners themselves had obtained their existing permits. On behalf of the petitioners reliance has been placed on the observation in (3) Gandhara Transport Co. A to reopen the decision to grant 20 permits in this route which had long been taken and it is on the basis thereof that the petitioners themselves had obtained their existing permits. On behalf of the petitioners reliance has been placed on the observation in (3) Gandhara Transport Co. v. State of Punjab, AIR 1964 SC 1243 (1248), that: in considering an application for a permit for a stage carriage normally the R. T. A. has to consider the matters set out in clauses (a) to (f) of Section 47. . . . . The Regional Transport Authority has also to consider whether the number of stage carriages generally or of any specified type. . . . . should be limited in any specified area. . . . When there is already a transport service maintained on the route in question by operators holding regular permits, having regard to the previous investigation made, proceed on results of enquiries or surveys made in respect of some of the matters detailed in Section 47 but it has still to consider all those matters. ( 14 ) IT is also to be noted that in the above observation no reference was made to the specific provision which had been introduced by the Legislature for fixing the limit of permits. As has been pointed out in the unreported decision in Baluram's case (Supra), cited earlier, where a number had already been fixed under Section 47 (3), that question need not be reconsidered at the time of considering applications for permits. Above all, a person who has obtained a permit, seeing with his eyes open, from the advertisement in response to which he made his own application for a permit, that more permits would be issued in future, cannot be heard to complain afterwards that his economic interests would be injured by the grant of such additional permits. ( 15 ) THE contention of the petitioners must accordingly fail. If the objections filed by the petitioners were such as the R. T. A. was not bound to consider under the law, petitioners can have nothing to complain of. ( 15 ) THE contention of the petitioners must accordingly fail. If the objections filed by the petitioners were such as the R. T. A. was not bound to consider under the law, petitioners can have nothing to complain of. ( 16 ) THE most serious point urged on behalf of the petitioners is that at the impugned meeting the R. T. A. invited an outside to participate, namely, the Executive Engineer, Hooghly, and that the latter did participate in its deliberations and that, consequently, the entire proceedings including the impugned resolution became invalid (para 11 of the petition ). ( 17 ) THE averment in para 12 of the counter-affidavit of the R. T. A. is that the said Engineer was summoned to satisfy the R. T. A. as to the condition of the road in the disputed route which was a relevant consideration under Section 47 (f) and that the Engineer did not participate in the deliberations or voting at the impugned meeting of the R. T. A. This is corroborated by an affidavit of the Engineer himself in one of the cases heard jointly. In the affidavit-in-reply the petitioners contend that the mere presence of this outsider who was not a member of the R. T. A. would vitiate the proceedings. ( 18 ) FROM the proceedings of the meeting, reproduced at p. 20 of Annex. A, it appears that the Executive Engineer, Construction Division, attended the meeting 'on special invitation' and that his name is written below the names of eight others who are described as 'members'. ( 19 ) THAT fact which emerges out of these affidavits is that, though the Engineer was present at the meeting, he did not participate in its deliberations, that is to say, the consideration of the applications for permit. The words 'special invitation' also corroborate the statement of the respondents that he was summoned only to report as to the condition of the roads. ( 20 ) IT is true that, as contended by the petitioners, there is no provision in the Act or the Rules enabling the R. T. A. to summon any outsider even as a witness and that, at a meeting of this statutory body only its members who are entitled to fees for attendance are to attend. ( 20 ) IT is true that, as contended by the petitioners, there is no provision in the Act or the Rules enabling the R. T. A. to summon any outsider even as a witness and that, at a meeting of this statutory body only its members who are entitled to fees for attendance are to attend. The R. T. A. might have obtained a written report from the local engineer as to the condition of the road, and it may be held that the act of the R. T. A. in calling the Engineer at the meeting was inadvisable or irregular. ( 21 ) BUT the question whether the mere presence of the outsider would render the proceedings invalid does not depend upon mere irregularities but upon the application of a deeper principle, namely, that the R. T. A. , being a statutory quasi-judicial body, must not contravene principles of natural justice. ( 22 ) THE decisions on the point make a distinction on the basis of the fact whether the stranger was or was not a person interested in the cause which was to be determined by the quasi-judicial authority. (a) Where the stranger was a person interested in the parties or the cause before the quasi-judicial Tribunal, the mere presence of such stranger at the meeting would vitiate the decision of the Tribunal even though the stranger did not participate in the decision or vote at the meeting. This Rule rests on the principle that the quasi-judicial Tribunal must be free from any likelihood of being biased by the interested stranger, and that it is immaterial whether the Tribunal was actually biased or not: (4) R. v. Sussex, JJ. , (1924) 1 KB 256, (5) Cooper v. Wilson, (1937) 2 All ER 726. (b) On the other hand, where the stranger had no interest in any of the parties before the Tribunal, the Tribunal's decision would be vitiated only if the stranger did actually influence the Tribunal in coming to its decision or participate in the matter of coming to its decision upon the quasi-judicial question. The question of bias, in such a case, must be determined from the point of view of a 'reasonable man': (6) R. V. Architects' Registration Tribunal (1945) 2 All ER 131, 136. The question of bias, in such a case, must be determined from the point of view of a 'reasonable man': (6) R. V. Architects' Registration Tribunal (1945) 2 All ER 131, 136. ( 23 ) IN the instant case, the Engineer concerned is not alleged to have any interest either in any of the applicants or in the matter of granting or refusing the applications. The petitioners were not present at the meeting and, therefore, have no personal knowledge; nor has the complaint come from any of the disgruntled applicants for permits from his personal knowledge as to what happened at the meeting. It is neither admitted nor established by undisputed evidence that the Engineer did actually participate in the consideration of the applications. In these circumstances, it is difficult to conclude that the R. T. A. was either biased or that there was any 'reasonable likelihood' of bias. This plea must also be rejected accordingly. ( 24 ) THE Rule is accordingly discharged, but I would make no order as to costs. C. R. 1340 No. (W)/64: ( 25 ) WHILE the facts of this case are similar to those in the preceding one, the allegation of the petitioners in para 6 of the petition that they submitted a representation on or about September 25, 1964, which was not considered by the R. T. A. , is denied in the counter-affidavit. It is admitted that in July, 1964, the petitioner submitted representations against the opening of the new bus route from Serampore to Jangipara, which was duly considered and rejected (para 7 of the counter-affidavit ). But that is not the subject-matter of dispute. ( 26 ) THE definite case of the petitioners in para 6 of the petition is that the disputed objections of September 25, 1964, were filed by the petitioners in the office of Opposite Party No. 1. After this allegation was denied in the counter-affidavit, the petitioners filed a supplementary affidavit on July 26, 1967, stating that they sent one set of the representations under certificate of posting on September 24, 1964, and on September 25, 1964, and delivered another copy of the representations into the letter-box of the R. T. A. 's Office. After this allegation was denied in the counter-affidavit, the petitioners filed a supplementary affidavit on July 26, 1967, stating that they sent one set of the representations under certificate of posting on September 24, 1964, and on September 25, 1964, and delivered another copy of the representations into the letter-box of the R. T. A. 's Office. This led to a supplementary affidavit filed by Respondent No. 1 with a copy of the register of his office showing that only one representation relating to a different route had been received on September 24, 1964. It was contended on behalf of the petitioners that the representation relating to the disputed route was enclosed in the same cover which had been sent by post and since one is admitted to have been received, the other must also have been received. The respondents are right in their contention that this is a improvement upon the case made in the original petition and cannot, therefore, be accepted. In any case, this is a disputed question of fact. We need not pursue the matter further inasmuch as even if the disputed representation had been received by the said respondent, the petitioners sought to reopen the fixation of the quota of permits which, as I have already held in the preceding Rule, could not be re-opened at this stage, and hence the petitioners cannot ask for a writ to compel the respondent to consider that objection before granting the permits. ( 27 ) THE other questions raised in the instant case have already been dealt with in C. R. No. 1363 (W) of 1964. The Rule is discharged accordingly. No order as to costs. ( 28 ) IN view of the order passed discharging the Rule and in view of the interim order of this Court dated March 1, 1965, clause (d), the Registrar, Appellate Side, shall continue to hold the money, that is to say, Rs. 5,000 deposited by the petitioners under that very order, until the Respondent No. 2 gets an order from a competent Court establishing his claim to indemnity as against the whole or the part of the said Rs. 5,000. If no order of injunction on this behalf is received by the Registrar within the course of six months from this date the said sum of Rs. 5,000 will be refunded to the petitioner. 5,000. If no order of injunction on this behalf is received by the Registrar within the course of six months from this date the said sum of Rs. 5,000 will be refunded to the petitioner. C. R. No. 19 (W)/65: ( 29 ) IN this case, the objection raised by the petitioners were actually heard on October 8, 1964 (Annex. A to the counter-affidavit ). The only point relating to the presence of the Executive Engineer has already been dealt with C. R. No. 1363 (W) of 1964. ( 30 ) THIS Rule also fails for the same reasons and is discharged. No order as to costs. C. R. No. 1400 (W)/64: ( 31 ) THE points raised in this case have been dealt with in C. R. No. 1363 (W) of 1964. the rule is discharged accordingly. No order as to costs. C. R. No. 169 (W)/65: ( 32 ) THIS petition raised new points. It is the case of an applicant whose application for one of the permits referred to in the preceding cases had been rejected. ( 33 ) THE petitioner's case is that no objection had been filed against the candidature of the petitioner (Biswanath Singha Roy) and yet the petitioner's application has been summarily rejected, without giving the petitioner any notice of the date and place of consideration of the applications. ( 34 ) THE other point raised as to the presence of the Executive Engineer has already been dealt with and rejected in C. R. No. 1363. ( 35 ) THE only point for determination in the instant case, therefore, is whether the requirements of Rule 57 of the Motor Vehicles Rules have been complied with. ( 36 ) RULE 57 (5) says: when any representation such as is referred to in sub-section (3) is made, the Regional 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 duty authorized representative. ( 37 ) IT is stated in the counter-affidavit that the petitioner's application before the serial number 79 and that it was rejected on the ground that it had not been duly filled in. ( 37 ) IT is stated in the counter-affidavit that the petitioner's application before the serial number 79 and that it was rejected on the ground that it had not been duly filled in. It is admitted that no objections were received against any of the applications, including that of the petitioner, but it is contended that the date and place of the meeting held on October 8, 1964, was duly published in the notice board of the R. T. A. 's office. ( 38 ) WE have, therefore, to se whether (a) the petitioner's application was defective; (b) whether the date and place of the meeting was published, as required by Rule 57 (3 ). (a) The petitioner has given a copy of his application at Annex. A. ( 39 ) FROM this copy it is evident that the following columns of the form of application (Form P St. P. A.) have not been filed in at all by the petitioner - clauses 7, 8, 14. ( 40 ) IT was contended on behalf of the petitioner that the R. T. A. had no power to reject an application which had not been filled in properly. ( 41 ) IN this context, reliance has been placed on Rule 59 (b) which provides: in granting any permit the Regional Transport Authority shall have power to modify the terms of the application in reasonable degree, and in such a case the application shall be deemed to be an application for the permit in the form granted. ( 42 ) THE above Rule, however, merely gives the R. T. A. the power to modify the terms of an application where it can be done in the public interests and where that is possible within a reasonable degree. It is an enabling provision and does not confer any right upon an applicant to insist that the R. T. A. must grant an application even though the application prescribed by the Rules has not been filled in. It is true that there is no specific provision in the Rules empowering the Authority to reject an application on the ground that the form has not been duly filled in. But such power follows by implication from the provision in Rule 59 (a) that every application for permit must be made in any of the specified forms as may be relevant. But such power follows by implication from the provision in Rule 59 (a) that every application for permit must be made in any of the specified forms as may be relevant. Nobody will contend that the R. T. A. has no power to reject an application even if the form is submitted blank altogether or it is not addressed to the secretary to the Authority, as required by Rule 59 (a), and, if he has the power to reject in such a case, because it is no application at all, he has that power also in a case where because of the omission of the applicant to fill in material columns, the application is not an application according to the statutory Rules. ( 43 ) IT was also contended that the R. T. A. had failed to give the applicant its reasons in writing for the rejection, as required by Section 57 (7 ). But the order at Annex. A in fact gives the reason that the application in question 'has not been properly filled in'. The fact that the petitioner has annexed a copy of the order to the petition also shows that the R. T. A. has not refused to give him a copy when demanded. ( 44 ) THE petitioner's contention on the present point has therefore no substance. (b) As regards the publication of the notice of the meeting on the notice board order the R. T. A. 's Office, there is no material upon which the veracity of the affidavit filed by the Chairman of the R. T. A. (the Collector) can be questioned by the Court. ( 45 ) ALL the points raised on behalf of the petitioner failing, this Rule is also discharged, but there will be no order as to costs. ( 46 ) ALL interim orders in these Rules which are discharged will stand vacated accordingly. As prayed for by the petitioners the operation of the orders on these Rules shall be stayed for a period of three weeks from this date. Rule discharged.