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2018 DIGILAW 389 (CAL)

Chiranjib Das v. State of West Bengal

2018-05-17

HARISH TANDON

body2018
JUDGMENT : 1. The instant writ petition is filed challenging the resolution of the Regional Transport Authority dated 16.11.2017 on the ground that the said authority lacks jurisdiction and powers to review its earlier decision dated 22nd February, 2017 in absence of power of review provided in Motor Vehicles Act, 1988. 2. The petitioners are the transport operators with valid permits issued by the Regional Transport Authority, Burdwan and plying their vehicle as per the time table issued therefore. There is no grievance so far as the issuance of permit by the competent authority nor on the time table / time schedule appended thereto. 3. The grievance of the petitioner in the instant writ petition is based upon a subsequent decision / resolution taken by the Regional Transport Authority superseding the earlier board resolution dated 22.02.2017. According to the petitioner, by a resolution dated 22nd February, 2017 no new permit should be issued to the vehicle which is registered two years prior to the date of an application. In other words, by such resolution / decision the applicants for new permit should possess the vehicle registered within two years from the date of the said application. 4. Subsequently, the said authority took further resolution on 16th November, 2017 revoking the said decision taken on 22nd February, 2017 on the basis of the Government Notification that the new permit can be granted to the vehicle complying B.S. III norms. The aforesaid decision / resolution appeared to have been taken because of the notifications and orders dated 07.08.2012 and 26.04.2013 issued by the Transport Department, Government of West Bengal as the same does not put any restriction that the vehicle must be registered within two years from the date of an application. 5. The petitioner treated such resolution as review to the earlier resolution dated 22nd February, 2017 and raises a point that the Quasi Judicial Authority cannot review its own decision / order, suo motu, in absence of any express provision in this regard in the Statute. 6. The bone of contention in the instant writ petition on behalf of the petitioner is that the Regional Transport Authority being the statutory body cannot travel beyond the periphery of the Motor Vehicles Act, 1988 and having done so, such decision / resolution is liable to be quashed and set aside. 7. 6. The bone of contention in the instant writ petition on behalf of the petitioner is that the Regional Transport Authority being the statutory body cannot travel beyond the periphery of the Motor Vehicles Act, 1988 and having done so, such decision / resolution is liable to be quashed and set aside. 7. It is further submitted that the Regional Transport Authority discharges the Quasi Judicial functions and therefore it cannot review its own decisions, suo motu, unless such power is provided in the said Act. According to the learned Advocate for the petitioner, the review is the statutory power, unless such power is conferred upon the Quasi Judicial Authority, it cannot exercise the power of review suo motu. 8. On the contrary, the learned Advocate for the respondents submits that the Regional Transport Authority has a blending of both the powers i.e. Quasi Judicial and Administrative. It is further submitted that there is no fetter on the part of the Statutory Authority to correct the mistakes suo motu as it does so under a plennery jurisdiction. It is, thus, submitted that the impugned resolution is purely administrative in nature and authority found that the earlier resolution dated 22nd February, 2017 was contrary to the Government Notification having binding effect and therefore the correction of such mistake cannot be treated as a review of the earlier resolution / decision. It is lastly submitted that no interference is called for to the impugned resolution and the writ petition is bereft of any merit and liable to be dismissed. 9. It is apposite to record that the learned counsels appearing for both the parties cited few judgments in support of their contention which this Court proposes to deal with hereinafter. 10. It is beyond cavil that the petitioners are the existing transport operators which admittedly do not apply to them as the same is restricted to the new permit. Apart from the locus of the petitioner, this Court proposes to deal with the points urged before this Court as the respondents have not taken such plea in course of the argument. 11. The creation of the Regional Transport Authority is by virtue of Section 68 of the Motor Vehicles Act which is extracted hereinbelow :- “68. Apart from the locus of the petitioner, this Court proposes to deal with the points urged before this Court as the respondents have not taken such plea in course of the argument. 11. The creation of the Regional Transport Authority is by virtue of Section 68 of the Motor Vehicles Act which is extracted hereinbelow :- “68. Transport Authorities.— (1) The State Government shall, by notification in the Official Gazette, constitute for the State a State Transport Authority to exercise and discharge the powers and functions specified in sub-section (3), and shall in like manner constitute Regional Transport Authorities to exercise and discharge throughout such areas (in this Chapter referred to as regions) as may be specified in the notification, in respect of each Regional Transport Authority; the powers and functions conferred by or under this Chapter on such Authorities : Provided that in the Union territories, the Administrator may abstain from constituting any Regional Transport Authority. (2) A State Transport Authority or a Regional Transport Authority shall consist of a Chairman who has had judicial experience or experience as an appellate or a revisional authority or as an adjudicating authority competent to pass any order or take any decision under any law and in the case of a State Transport Authority, such other persons (whether officials or not), not being more than four and, in the case of a Regional Transport Authority, such other persons (whether officials or not), not being more than two, as the State Government may think fit to appoint; but no person who has any financial interest whether as proprietor, employee or otherwise in any transport undertaking shall be appointed, or continue to be, a member of a State or Regional Transport Authority, and, if any person being a member of any such Authority acquires a financial interest in any transport undertaking, he shall within four weeks of so doing, give notice in writing to the State Government of the acquisition of such interest and shall vacate office : Provided that nothing in this sub-section shall prevent any of the members of the State Transport Authority or a Regional Transport Authority, as the case may be, to preside over a meeting of such Authority during the absence of the Chairman, notwithstanding that such member does not possess judicial experience or experience as an appellate or a revisional authority or as an adjudicating authority competent to pass any order or take any decision under any law : Provided further that the State Government may,— (i) where it considers necessary or expedient so to do, constitute the State Transport Authority or a Regional Transport Authority for any region so as to consist of only one member who shall be an official with judicial experience or experience as an appellate or a revisional authority or as an adjudicating authority competent to pass any order or take any decision under any law; (ii) by rules made in this behalf, provide for the transaction of business of such authority in the absence of the Chairman or any other member and specify the circumstances under which, and the manner in which, such business could be so transacted : Provided also that nothing in this sub-section shall be construed as debarring an official (other than an official connected directly with the management or operation of a transport undertaking) from being appointed or continuing as a member of any such authority merely by reason of the fact that the Government employing the official has, or acquires, any financial interest in a transport undertaking. (3) The State Transport Authority and every Regional Transport Authority shall give effect to any directions issued under Section 67 and the State Transport Authority shall, subject to such directions and save as otherwise provided by or under this Act, exercise and discharge throughout the State the following powers and functions, namely— (a) to co-ordinate and regulate the activities and policies of the Regional Transport Authorities, if any, of the State; (b) to perform the duties of a Regional Transport Authority where there is no such Authority and, if it thinks fit or if so required by a Regional Transport Authority, to perform those duties in respect of any route common to two or more regions; (c) to settle all disputes and decide all matters on which differences of opinion arise between Regional Transport Authorities; [(ca) Government to formulate routes for plying stage carriages; and] (d) to discharge such other functions as may be prescribed. (4) For the purpose of exercising and discharging the powers and functions specified in subsection (3), a State Transport Authority, may, subject to such conditions as may be prescribed, issue directions to any Regional Transport Authority, and the Regional Transport Authority shall, in the discharge of its functions under this Act, give effect to and be guided by such directions. (5) The State Transport Authority and any Regional Transport Authority, if authorised in this behalf by rules made under Section 96, may delegate such of its powers and functions to such authority or person subject to such restrictions, limitations and conditions as may be prescribed by the said rules.” 12. Now, it is thus seen from the aforesaid provision that the Regional Transport Authority is vested with multiple powers both on administrative as well as on quasi judicial side. There is a clear distinction between the quasi judicial powers and the administrative powers which has been succinctly laid down by the Apex Court in case of State of H.P. Vs. Raja Mahendra Pal & Ors. reported in (1999) 4 SCC 43 in the following:- “8. The submission that the Pricing Committee was a quasi-judicial tribunal constituted by the State Government in exercise of its statutory as well as plenary executive powers can also not be accepted in the light of the functions assigned to the Committee. Raja Mahendra Pal & Ors. reported in (1999) 4 SCC 43 in the following:- “8. The submission that the Pricing Committee was a quasi-judicial tribunal constituted by the State Government in exercise of its statutory as well as plenary executive powers can also not be accepted in the light of the functions assigned to the Committee. Quasi-judicial acts are such acts which mandate an officer the duty of looking into certain facts not in a way which it specially directs but after a discretion, in its nature judicial. The exercise of power by such tribunal or authority contemplates the adjudication of rival claims of the persons by an act of the mind or judgment upon the proposed course of official action as to an object of the corporate power, for the consequences of which the official will not be liable, although his act was not well judged. A quasi-judicial function has been termed to be one which stands midway a judicial and an administrative function. The primary test is as to whether the authority alleged to be a quasi-judicial one, has any express statutory duty to act judicially in arriving at the decision in question. If the reply is in the affirmative, the authority would be deemed to be quasi-judicial, and if the reply is in the negative, it would not be. The dictionary meaning of the word “quasi” is “not exactly”. 9. It follows, therefore, that an authority is described as quasi-judicial when it has some of the attributes or trappings of judicial functions, but not all. This Court in Province of Bombay v. Khushaldas S. Advani [ AIR 1950 SC 222 : 1950 SCR 621 ] dealt with the actions of the statutory body and laid down tests for ascertaining whether the action taken by such a body was a quasi-judicial act or an administrative act. The Court approved the celebrated definition of the quasi-judicial body given by Atkin, L.J., as he then was in R. v. Electricity Commrs. The Court approved the celebrated definition of the quasi-judicial body given by Atkin, L.J., as he then was in R. v. Electricity Commrs. [(1924) 1 KB 171 : 130 LT 164] in which it was held : “Whenever any body of persons having legal authority to determine questions affecting 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.” The aforesaid definition was accepted as correct in R. v. London County Council [(1931) 2 KB 215 : 144 LT 464] and many subsequent cases both in England and in India. Again this Court in Radeshyam Khare v. State of M.P. [ AIR 1959 SC 107 : (1959) 1 MLJ 5 (SC)] relying upon its earlier decision held : “It will be noticed that this definition insists on three requisites each of which must be fulfilled in order that the act of the body may be quasi-judicial act, namely, that the body of persons (1) must have legal authority, (2) to determine questions affecting the rights of parties, and (3) must have the duty to act judicially. Since a writ of certiorari can be issued only to correct the errors of a court or a quasi-judicial body, it would follow that the real and determining test for ascertaining whether an act authorised by a statute is a quasi-judicial act or an administrative act is whether the statute has expressly or impliedly imposed upon the statutory body the duty to act judicially as required by the third condition in the definition given by Atkin, L.J. *** Relying on paras 114 and 115 of Halsbury's Laws of England, 3rd Edn., Vol. 11 at pp. 55-58 and citing the case of R. v. Manchester Legal Aid Committee [(1952) 2 QB 413 : (1952) 1 All ER 480] learned counsel for the appellants contends that where a statute requires decision to be arrived at purely from the point of view of policy or expediency the authority is under no duty to act judicially. 11 at pp. 55-58 and citing the case of R. v. Manchester Legal Aid Committee [(1952) 2 QB 413 : (1952) 1 All ER 480] learned counsel for the appellants contends that where a statute requires decision to be arrived at purely from the point of view of policy or expediency the authority is under no duty to act judicially. He urges that where, on the other hand, the order has to be passed on evidence either under an express provision of the statute or by implication and determination of particular facts on which its jurisdiction to exercise its power depends or if there is a proposal and an opposition the authority is under a duty to act judicially. As stated in para 115 of Halsbury's Laws of England, Vol. 11 at p. 57 the duty to act judicially may arise in widely differing circumstances which it would be impossible to attempt to define exhaustively. The question whether or not there is a duty to act judicially must be decided in each case in the light of the circumstances of the particular case and the construction of the particular statute with the assistance of the general principles laid down in the judicial decisions. The question whether or not there is a duty to act judicially must be decided in each case in the light of the circumstances of the particular case and the construction of the particular statute with the assistance of the general principles laid down in the judicial decisions. The principles deducible from the various judicial decisions considered by this Court in Khushaldas S. Advani [ AIR 1950 SC 222 : 1950 SCR 621 ] at p. 725 (of SCR) : (at p. 260 of AIR) were thus formulated, namely— ‘(i) that if a statute empowers an authority, not being a court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and (ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially.’ ” In the instant case the order appointing the Pricing Committee which was amended on 26-11-1986 specifically provided : “The aforesaid Pricing Committee was established to determine (not merely to advise on) the price and terms and conditions for the supply of resin, resin blazes, standing trees and other foreign produce to be handed over by the H.P. Forest Department to the H.P. State Forest Corporation Ltd. from time to time.” Applying the tests noticed hereinabove, it cannot be said by any stretch of imagination that the said Committee was or intended to be a quasi-judicial tribunal as argued on behalf of Respondent 1. This Committee can also not be stated to have been constituted in exercise of the plenary administrative power of the appellant-State. This Committee can also not be stated to have been constituted in exercise of the plenary administrative power of the appellant-State. It has been conceded before us that the said Committee was not constituted in terms of Section 6 of the Himachal Pradesh Forest Produce (Regulation of Trade) Act, 1982. No other statutory provision has been relied on either. The Committee appears to have been constituted for settlement of the claims and disputes between the appellant-State and the respondent-Corporation. The decisions of the Committee were applicable to the parties to the said Committee and not to any third person. The said Committee had no source of its constitution in any statute nor was it intended to determine or adjudicate the claims of parties with respect to the matters referred to it for opinion and suggestion or even for settlement between the parties concerned. The decision of the Committee, not being statutory, thus could not be given effect to by the High Court.” 13. What can be deduced from the aforementioned judgment that if the authority exercises the power of adjudication of rival claims of the persons and arrived at the decision in question, such authority exercises the quasi judicial functions which can only be done with an express statutory authority provided in the Act. The quasi judicial functions can be exercised provided it has a legal authority to determine the question affecting the rights of parties having duty to act judicially. There is a sharp distinction between the judicial function and the administrative function which is well defined. The quasi judicial function stands in between the same and must be judged not only on the parameters of the legal authority but on the nature of the functions and the adjudication made. 14. There is no quarrel to the proposition that where a Court or quasi judicial authority have no jurisdiction to adjudicate the matter on merit proceeds to do so, its judgment and order can be reviewed on merit only if such authority or the Court is vested with power of review by express provision or by necessary implication. There are two types of review namely – (i) Procedural review; and (ii) Review on merit. 15. There are two types of review namely – (i) Procedural review; and (ii) Review on merit. 15. In the former case if the order or the decision is tainted with procedural defects and inadvertent error, it can be corrected ex debito justitae to prevent the abuse of the process and such power inheres in every Court or the Tribunal or with the Quasi Judicial Authority. 16. However, in later case, unless the party applies and invites the attention of the authority that the decision / order suffers from patent error, such power can be exercised only under express provision provided in the Statute. The reference can be made to a judgment of the Apex Court in Kapra Mazdoor Ekta Union Vs. Birla Cotton Spinning and Weaving Mills Ltd. & Anr. reported in (2005) 13 SCC 777 wherein the Apex Court held :- “19. Applying these principles it is apparent that where a court or quasi-judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the court or the quasi-judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the court or quasi-judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits (sic ascertains whether it has committed) a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the court or quasi-judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the court or the quasi-judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch as the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be reheard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal [1980 Supp SCC 420 : 1981 SCC (L&S) 309] it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be reheard and decided again.” 17. First and foremost point which this Court feels and requires consideration is whether the impugned resolution / decision is passed by the Regional Transport Authority exercising quasi judicial powers or it is merely administrative in nature. The Regional Transport Authority is vested with the statutory power under Section 72 of the Motor Vehicles Act to grant contract carriage permit imposing the conditions as enumerated therein including such conditions which may be prescribed. The resolution / decision dated 22nd February, 2017 relates to condition to be attached with the new carriage permit issued to a prospective transport operators to the effect that the vehicle should have been registered within two years from the date of the application. It cannot be said that the said resolution / decision was passed exercising quasi judicial powers but in general sense imposing conditions for a new carriage permit without affecting any existing carriage permit holder. It cannot be said that the said resolution / decision was passed exercising quasi judicial powers but in general sense imposing conditions for a new carriage permit without affecting any existing carriage permit holder. Apparently, the said resolution is taken for the safety and security of the commuters and avoidance of any accident in the Indian roads. On the bare look and taking into account the latent object one cannot find fault in such decision but after considering the provisions in the Act more particularly, Section 67 thereof, it is clear that the State Government may issue notifications / orders and it is one of the paramount duty of the Regional Transport Authority to execute and implement the same. The Regional Transport Authority exercises the authority and power under the Statute and therefore cannot take any decision contrary to or contravention to the notifications / orders of the State Government. 18. By the impugned notification dated 16th November, 2017 the Regional Transport Authority realizes the mistake in taking such resolution on 22nd February, 2017 and found that the same contravenes the notification dated 07.08.2012 and 26.04.2013 issued by the State Government that the new permit has to be covered by the vehicle complying minimum BS-III norms. The imposition of new conditions in contravention to the decision / order of the State Government is per se illegal and if any rectification is done by the Regional Transport Authority it can be said that the decision is either under procedural review or a review on merit. It is merely a policy decision taken in exercise of the administrative authority and the mistake can be rectified at any point of time. 19. The decision in case of Subhash Chandra & Ors. Vs. State of U.P. & Ors. reported in (1980) 2 SCC 324 cannot be applied in the facts of the present case as there was no State Government Notification / Order contrary to the decision of the Regional Transport Authority was involved therein. In the said decision, the Court was concerned with the relaxation of the stringent provisions by the Regional Transport Authority and concerned over the safety and security of the citizens of the country. The observations recorded in paragraph 4 of the said judgment is succinctly quoted hereinbelow :- “4. Section 51(2)(x) authorises the impost of any condition, of course, having a nexus with the statutory purpose. The observations recorded in paragraph 4 of the said judgment is succinctly quoted hereinbelow :- “4. Section 51(2)(x) authorises the impost of any condition, of course, having a nexus with the statutory purpose. It is undeniable that human safety is one such purpose. The State's neglect in this area of policing public transport is deplorable but when it does act by prescribing a condition the court cannot be persuaded into little legalism and harmful negativism. The short question is whether the prescription that the bus shall be at least a seven-year old model one is relevant to the condition of the vehicle and its passenger's comparative safety and comfort on our chaotic highways. Obviously it is. The older the model, the less the chances of the latest safety measures being built into the vehicle. Every new model incorporates new devices to reduce danger and promote comfort. Every new model assures its age to be young, fresh and strong, less likely to suffer sudden failures and breakages, less susceptible to wear and tear and mental fatigue leading to unexpected collapse. When we buy a car or any other machine why do we look for the latest model? Vintage vehicles are good for centenarian display of curios and cannot but be mobile menaces on our notoriously neglected highways. We have no hesitation to hold, from the point of view of the human rights of road users, that the condition regarding the model of the permitted bus is within jurisdiction, and not to prescribe such safety clauses is abdication of statutory duty.” 20. Had the case been that the challenge is made on other parameters, then on the point of authority to review suo motu the position would have been different. The Statutory Authority cannot travel beyond the periphery of the Act being the source of its very existence and if any administrative decision is taken in violation thereof, can be rectified subsequently. 21. As held above, the impugned resolution cannot be said to have been passed exercising quasi judicial powers but purely administrative in nature and therefore, this Court does not find that such decision needs any interference. 22. The writ petition is, thus, bereft of merit and is hereby dismissed. 23. However, there shall be no order as to costs.