Sarju Bala Kushiary v. Under Secretary To Govt. Of Bihar
1971-02-19
KANHAIYAJI, S.N.P.SINGH
body1971
DigiLaw.ai
Judgment Kanhaiyaji, J. 1. Srimati Sarju Bala Kushiary has filed this application challenging the validity of the orders of the Appeal Board dated the 5th June. 1969 contained in Annexure "3" and that of the Government dated the 24th July, 1969 (Annexure 5) under Articles 226 and 227 of the Constitution of India. 2. The Chota Nagpur Regional Transport Authority (hereinafter called as R. T. A.) advertised for a vacancy for the route Hazaribagh-Itkhori via Padma covering a distance of thirty miles (partly fair-weather route) and invited applications for the grant of a stage carriage permit for the same. Three persons including the petitioner and Leyakat Hus-sain Ansari (respondent No. 4) applied for the grant of the permit in question , and their applications were duly published in the Bihar Gazette inviting objections, if any. The Bihar State Road Transport Corporation (respondent No. 5) hereinafter referred to as the Corporation, filed an objection on the ground that 18 miles of the route from Hazaribagh to Padma is notified. The petitioner claimed the permit on the ground that she had a permit on this route which she had plied, but she was displaced due to nationalisation since the 27th August, 1960. She further offered a 1961 model bus, of which she was in possession. Respondent No. 4 claimed the permit on the ground that he was displaced by 705 miles and of fered a 1969 model bus. 3. The R. T. A. at its meeting held on the 27th January 1969, overruled the objection of the Corporation and resolved that the permit for the route be granted to the petitioner for a period of three years on condition that she would produce valid papers of a 1961 model bus within four months from the date of the order. The petitioners claim was found superior to that of respondent No. 4 whose permit for the route Hazaribagh-Katkamssandi was cancelled by the R. T. A. at its meeting dated the 4/5th January 1969 for non-plying of the service. A copy of the order of the R. T. A. is Annexure 1. Against the orders of the R. T. A. two appeals were preferred before the Appeal Board -- one by the Corporation and the other by respondent No. 4. The petitioner filed a petition before the Appeal Board by way of objection to the appeal of Respondent No. 4.
Against the orders of the R. T. A. two appeals were preferred before the Appeal Board -- one by the Corporation and the other by respondent No. 4. The petitioner filed a petition before the Appeal Board by way of objection to the appeal of Respondent No. 4. A copy of the said petition is Annexure 2. The Appeal Board disposed of the appeal filed by the Corporation by ordering that the permit holder would not be allowed to pick up or drop down any passenger so long he plied taxi on notified portion of the route from Hazari-bagh to Padma. We have been informed that the Corporation has filed a revision against the order of the Appeal Board. Coming to the rival claimants, the Appeal Board passed the following order:- - "Both claim to be displaced. Although it was urged, that Smt. Sarju Bala Kusiyari was fully compensated, there is no such finding by the C. N. R. T. A. although it was not disputed. It is also true that the cancellation of the permit of Sri Leyakat Husain was modified by the appellate court and it should not, therefore, be urged as an argument against him. Having regard to the reasons given above, I consider that the C. N. R. T. A. should have preferred Sri Leyakat Husain who has been displaced to the extent of 705 miles and was also willing to offer a 1969 model and this offer compares very favourably to what was offered by Smt. Sarju Bala Kusiyari." In view of the above reasons, the order of the R. T. A. granting permit to the petitioner was set aside, and the Appeal Board directed to give permit to respondent No. 4. A copy of the order of the Appeal Board is Annexure "3". Therefore, the petitioner filed an application under Sec. 64-A of the Motor Vehicles (Bihar Amendment) Act, 1949. (Bihar Act XXVII of 1950), hereinafter referred to as the Bihar Act. A copy of the petition is Annexure "4". It is stated that the petitioner was not given personal hearing and was informed by Memo No. 6641, dated the 25th July, 1969, signed by the Under-Secretary to the Government that her representation has been rejected by the State Government. A copy of the letter is Annexure 5; 4. Mr.
A copy of the petition is Annexure "4". It is stated that the petitioner was not given personal hearing and was informed by Memo No. 6641, dated the 25th July, 1969, signed by the Under-Secretary to the Government that her representation has been rejected by the State Government. A copy of the letter is Annexure 5; 4. Mr. Amlakant Choudhary, learned Counsel appearing for the petitioner, contended that it was beyond the competence of the appellate authority to set aside the order of the R. T. A. on the ground that some other applicant had offered a later model bus. In support of his contention, he drew our attention to Sec. 47 of the Motor Vehicles Act, hereinafter called the Act. It was argued that the R. T. A. could not have regard to any such matter in considering an application for a stage carriage permit. Sec. 45 of the Act contains general provision as to applications for permits. The particulars to be given in an application for a permit in respect of a service of stage carriage are given in Sec. 46 of the Act. Sec. 47 contains the procedure of Regional Transport Authority in considering an application for stage carriage permit. The material portions of this section are reproduced below:- - "(1) Regional Transport Authority shall, in considering an application for a stage carriage permit, have regard to the following matters, namely:- - (a) the interest of the public generally; (b)* * * * * (c) * * * * * (d) the benefit to any particular locality or localities likely to be afforded by the service; (e) ** ** ** ** (f) the condition of the roads in- eluded in the proposed route or area; **** **** Section 48 of the Act provides that: "Subject to the provisions of Sec. 47, a Regional Transport Authority may, on an application made to it under Sec. 46 grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit." Reliance was placed on a decision of this Court in Anil Krishna Ghosh V/s. Appeal Board, State Transport Authority, AIR 1961 Pat 484 .
In this case, the order of the Regional Transport Authority was that permit would be granted to the petitioner for the rents in question if the petitioner produced registration certificate of a 1959 model Vehicle with a valid certificate of fitness and tax token within three months of the date of the order. The Appeal Board set aside this order on the ground that in the course of the proceeding of the meeting the petitioner offered only a 1958 Model Vehicle, whereas the others were prepared to offer a 1959 Model. It was observed by this court that the reason given by the Appeal Board, namely, that in the course of the proceedings of the meeting the petitioner offered only a 1958 Model Vehicle, whereas the others were prepared to offer a 1959 Model, was not relevant for decision of the question. The petitioner had actually purchased a 1959 model bus and produced the registration certificate and the other necessary documents within the time given by the East Bihar Regional Transport Authority. Therefore, the order of the Appeal Board was set aside. In Masi Ullah V/s. State Tribunal Appellate U. P., AIR 1967 All 128 , it was held that the order of the transport authorities was bad in attaching a condition to the type of the vehicle in the permit granted by the authorities. In my opinion, the facts of the above two cases are entirely different. I will, further, deal with this ground along with the other grounds urged by learned Counsel for the petitioner. 5. Learned Counsel contended that in arriving at the said decision, the Appeal Board should have taken into consideration that the applicant was operating on the route for which permit was to be granted. The petitioner had sector qualification, and therefore, she should have been given preference over respondent No. 4. In support of this contention, learned Counsel for the petitioner relied on a decision of the Mysore High Court in the Hamuman Transport Co. Ltd., Udipi V/s. The State of Madras, AIR 1959 Mys 72. In that case, it has been held that the sector qualification is a relevant consideration as to the interest of the public generally. 6.
In support of this contention, learned Counsel for the petitioner relied on a decision of the Mysore High Court in the Hamuman Transport Co. Ltd., Udipi V/s. The State of Madras, AIR 1959 Mys 72. In that case, it has been held that the sector qualification is a relevant consideration as to the interest of the public generally. 6. Gaiendragadkar, J., as he then was, while delivering the judgment of the Court in Sri Rama Vilas Service (P) Ltd. V/s. C. Chandrasekaran, AIR 1965 SC 107 , observed: "In dealing with applications for writs of certiorari under Article 226 in cases of this kind, it is necessary to bear in mind that the High Court is not exercising the jurisdiction of an Appellate Court in the matter. There is no doubt that in granting or refusing permits to applicants, the appropriate authorities are discharging a very important and a very onerous quasi-judicial function. Large stakes are generally involved in these applications, and so, it is of utmost importance that the approriate authority should consider all the relevant facts carefully and in its order should set out concisely and clearly the reasons in support of its conclusions. It is hardly necessary to emphasise that applications for permits whose applications are rejected should be satisfied that all points urged by them in support of their respective claims have been duly considered before the matter was decided. Even so, it would, we think, be inappropriate for the High Court to issue a writ of certiorari mainly or solely on the ground that all reasons have not been set out in the judgment of the appropriate authority. In entertaining writ petitions, the High Court must not lose sight of the fact that the decisions of questions of fact under the Motor Vehicles Act have been left to the appropriate authorities which have been constituted into quasi-judicial Tribunals in that behalf, and so, decisions rendered by them on all questions of fact should not be interfered with under the special jurisdiction conferred on the High Courts under Article 226, unless the well-recognised tests in that behalf are satisfied". 7. Sec. 47 lays down the conditions to which regard will be paid in granting or refusing a stage carriage permit.
7. Sec. 47 lays down the conditions to which regard will be paid in granting or refusing a stage carriage permit. These conditions are not necessarily exhaustive in detail in deciding between one applicant and another and the authorities may well consider other allied matters, for example, if there are two applicants and one of them has a better bus than the other, the Transport authority may well take that circumstance also into consideration in granting the permit, or, the fact that one applicant had more experience than the other. It is common knowledge that in a later model bus, there will be less breakage, and its running will be more efficient. Sec. 47 (1) (a) of the Act covers both men and machinery, and, in my opinion, the consideration of such allied matters is well within the scope of this section. 8. In the counter-affidavit filed by respondent No. 4, it is stated that though the petitioner had been displaced by 24 miles, the loss was compensated by grant of 28 miles route via Hazaribagh-Tendwa. On the other hand, it appears from the order passed by the Appeal Board that respondent No. 4, was displaced to the extent of 705 miles. In my opinion, the Appeal Board was, therefore, fully justified in giving preference to respondent No. 4 for the reasons given in its order. It may further be noted that the cancellation of the permit to respondent No. 4 had been modified by the appellate court. Therefore, whatever disqualification was there on this account against respondent No. 4, it had been removed. As such, the reasons given by the Appeal Board in giving preference to respondent No. 4 over the petitioner are relevant considerations in deciding the question of grant of permit for stage carriage and I am not inclined to accept the argument that the Appeal Board has committed any error of law in deciding to give the permit to respondent No. 4 who had previous experience, had offered a later model bus and had been displaced from a longer route. 9. In the counter-affidavit, respondent No. 4 has denied the allegation made by the petitioner that he had no sector qualification. Both of them are displaced operators of the same sector. Therefore, it cannot be said that only the petitioner has sector qualification, whereas respondent has no such qualification. 10.
9. In the counter-affidavit, respondent No. 4 has denied the allegation made by the petitioner that he had no sector qualification. Both of them are displaced operators of the same sector. Therefore, it cannot be said that only the petitioner has sector qualification, whereas respondent has no such qualification. 10. Learned Counsel for the petitioner next argued that the order passed by the Government is unjust and unreasonable, and, therefore it is illegal and should be quashed. Sec. 64-A was inserted in the Act after Sec. 64 of the said Act by the Bihar Act; and, it reads as under:- - "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 proceedings taken under this Chapter by any authority or officer subordinate to it, call for the records of such proceedings, and after examining such records pass such order as it thinks fit". In the writ application, nowhere it has been mentioned that the Minister did not consider the application on merit. The grievance of the petitioner is that he was not given personal hearing, and the grounds for rejecting his revision application are not mentioned in the order. The power given to the State Government under Sec. 64-A is a re-visional power which has to be exercised for the purpose of satisfying itself as to the legality, irregularity and propriety of the orders passed by any authority or officer subordinate to it. These considerations lead me to the conclusion that though Sec. 64-A says that the State Government may pass such orders as it thinks fit, the power is really of a quasi-judicial nature. In its very nature, the power is regulated by well known judicial considerations. This aspect of the case was considered by a Bench of this Court in Bikramjit Singh V/s. State of Bihar, 1965 BLJR 394 = ( AIR 1966 Pat 96 ). It was held that "there is no provision for the Minister to issue a notice to the petitioner in a revision application to enable him to make an oral submission. A different consideration may arise when the Minister is going to reverse an order of the subordinate authority and thus pass an adverse order against a person in whose favour the subordinate authority had passed an order.
A different consideration may arise when the Minister is going to reverse an order of the subordinate authority and thus pass an adverse order against a person in whose favour the subordinate authority had passed an order. That principle, in my opinion, will not apply where the Minister, on perusal of the record, is proceeding to reject a revision application summarily and thus affirming the order of the subordinate authority." Learned Counsel appearing for the petitioner says that the principle laid down in this case has weakened because of Bhagat Rajas case decided by the Supreme Court vide Bhagat Raja V/s. Union of India, AIR 1967 SC 1606 . This was a case of grant of mining lease under the provisions of Mines and Minerals (Regulation and Development) Act, 1957. A revision application was to be considered by the Central Government under Rule 55 of the Mineral Concession Rules, 1960. In exercising its powers of revision under Rule 55, the Central Government must take into consideration not only the material which was before the State Government but comments and counter-comments, if any, which the parties may make regarding the order of the State Government. In other words, it is open to the parties to show how and . where the State Government had gone wrong or why the order of the State Government should be confirmed. The provision of Sec. 64-A of the Act is wholly dissimilar to that of Rule 55 aforesaid. A recent Full Bench decision of the Allahabad High Court in Haji Manzoor Ahmad V/s. State of U. P., AIR 1970 All 467 (FB), while considering a similar provision for revision embodied in Section 7-F of the TJ. P. (Temporary) Control of Rent and Eviction Act, considered various pronouncements of the Supreme Court on the point as also some important English decisions including the decision of the House of Lords in Ridge V/s. Baldwin, 1964 AC 40 and laid down the following rules :- - "Where an order of an inferior authority is carried in appeal or revision before a superior authority, and in disposing of the appeal or revision the superior authority makes an order in the exercise of quasi judicial jurisdiction: (1) In all cases where the superior authority interferes with the order of the inferior authority, the order of the superior authority must set out its reasons.
(2) In cases where the superior authority merely affirms the order of the inferior authority and, (a) where the order of the inferior authority does not set out its reasons, the superior authority must disclose its reasons in its order; (b) Where the order of the inferior authority sets out the reasons; (i) Where the superior authority finds the reasons of the inferior authority acceptable to it, it need not specify the reasons in its order but may merely refer to the reasons given by the inferior authority or give an outline of the process of reasoning by which it finds itself in agreement with the inferior authority; (ii) Where the superior authority does not find the reasons of the inferior authority acceptable to it, the superior authority must set out its own reasons in its order". I respectfully agree with the majority view of the Full Bench, as stated above. 11 For the reasons stated above. I do not think that the petitioner has made out a case for granting writ of certiorari for quashing the orders of the Appeal Board and the State Government. 12. The result, therefore, is that the application fails and is dismissed with costs; hearing fee is assessed at Rs. 150.00 (One hundred and fifty) only. Cost payable to respondent No. 4 only. S.N.P.Singh, J. 13 I agree.