Benoy Kumar Chakrabarty Vs State of Assam and ors - Citation 138368 - Court Judgment

Judgment:

G. Mehrotra, J.

1. This Rule has been issued on an application under Article 226 of the Constitution for a writ of mandamus or certiorari or any other appropriate writ against the opposite parties to show cause why the order passed by them should not be quashed. The petitioner is a resident of Lakhipur under Goalpara Subdivision in the district of Goalpara and had made an application for granting him a stage carriage permit for Lakhipur-Goalpara route. Along with the petitioner one Khairuddin had also applied for the grant of a permit on the same route. The petitioner and Khairuddin were considered suitable for the grant of the permit.

The Regional Transport Authority of Gauhati in its meeting held on 25th and 26th October 1956, decided & granted a stage carriage permit to the petitioner for the Lakhipur-Goalpara route for a period of three years with effect from 1-12-56. The Goalpara Bus Association opposed the increase of number of stage carriage permits on Lakhipur-Goalpara route in the meeting held on the 25th and 26th of October, 1956, but their objections were turned down. An appeal was filed by the Goalpara Bus Association against the grant of permits to the petitioner and Khairuddin and that was rejected. Permit fee was thereafter deposited by the petitioner and he purchased the bus No. ASK 1745 and put it on the Lakhipur-Goalpara route.

He obtained a special permit No. P. St. P. 1/57 from the Regional Transport Authority, Gauhati on 21-5-57 and since that date, he has been plying the bus on that route. Opposite party No. 4 Rohini Kumar Das who had also a permit for a bus on Bangigaon-Basugaon-Sidly-Chapar route filed an appeal to the Appellate Board, Transport, Assam against the order of the Regional Transport Authority, Gauhati refusing to grant him a permit on the Lakhipur-Goalpara route and allowing the petitioner a permit on that route. The Appellate Board--respondent No. 2 after hearing the appeal filed by Rohini Kumar Das opposite party No. 4 allowed the appeal and granted him a permit on the said route. Respondent No. 2 while granting the permit to respondent No. 4 Rohini Kumar Das, offered the petitioner a permit on the Bongaigaon-Basugaon-Sidly-Chapar route if he so desired.

The Appellate Authority held that the petitioner was a new comer to this business and he had no experience of the business and thus the order granting him the permit was cancelled and the permit was granted to opposite party No. 4. It is this order which has been impugned by the present petitioner before us. The main contention raised by the petitioner is that the appeal having been filed by respondent No. 4 against the refusal of permit to him, the Appellate Authority had no jurisdiction to cancel the order granting him the permit and to grant the same to the respondent No. 4.

He further contends that he acquired a right to get a permit under the order of the Regional Transport Authority, which according to his contention, could not be set aside on an appeal by the respondent No. 4, specially when no written objection was filed by him to the grant of permit to the petitioner before the Regional Transport Authority. In this connection it is further argued that the petitioner was granted a temporary permit to ply his bus on this route on 21-5-1957 and the order of the Appellate Authority amounts to cancellation of that permit which the Appellate Authority had no jurisdiction to do, except on the grounds mentioned in Section 60 of the Motor Vehicles Act.

It will be convenient to dispose of the second contention first. The petitioner was granted a permanent permit for stage carriage by the Regional Transport Authority as decided in its meeting held on 25th and 26th October 1956 and an application opposing the grant of the permit made by the Goalpara Bus Association was rejected. Respondent No. 4 filed the appeal and during the pendency of the appeal the petitioner was allowed to ply his bus under the permit granted on 21-5-1957. The petitioner, therefore, cannot contend to have acquired any permanent right to ply his bus under the permit dated 21-5-1957. The effect of the permit granted on 21-5-1957 was to permit him to ply the bus during the pendency of the appeal. The Appellate authority did not cancel any permit granted to the petitioner and thus the provisions of Section 60 of the Motor Vehicles Act are not attracted.

2. The main point however, urged by the petitioner is that the order of the Appellate Authority is without jurisdiction. In brief the argument is that in an appeal filed by the respondent No. 4 against the order refusing to grant him a permit, the Appellate Authority had no jurisdiction to cancel the permit granted to the petitioner. Section 64 of the Motor Vehicles Act reads as follows :

'Any person --

(a) aggrieved by tile refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or

(b) aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, or

(d) aggrieved by the refusal of the State or a Regional Transport Authority to countersign a permit or by any condition attached to such counter-signature, or

(e) aggrieved by the refusal or renewal of a permit, or

(f) being a local authority or police authority or an association which, or a person providing transport facilities who, having opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto, or

(g) aggrieved by the refusal to grant permission under Sub-section (1) or Sub-section (2) of Section 59, or

(h) aggrieved by a reduction under Sub-section (1-A) of Section 60 in the number of vehicles or routes or area covered by a permit, or

(i) aggrieved by any other order which may be prescribed, may, within the prescribed time and in the prescribed manner, appeal to the prescribed authority who shall give such person and the original authority an opportunity of being heard.'

3. According to the petitioner, Clause (a) of Section 64 gives a right to a person whose application for grant of permit has been refused by the Regional Transport Authority to file an appeal to the Appellate Authority. Clause (f) of the Section gives a right to a local authority or police authority or an association which, or a person providing transport facilities who, having opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto, before the original authority to file an appeal.

The right, therefore, to challenge the grant of permit has only been given to a person who has opposed the grant of permit before the Regional Transport Authority, and simply because a person has exercised his right under Clause (a) against the order refusing to grant him permit, he cannot be given a higher right than what he would have had if he had appealed under Clause (f) of Section 64. In other words the contention is that unless he had opposed in writing the grant of permit before the Regional Transport Authority, he was not entitled to a relief under Clause (f) or Section 64.

This argument in effect presupposes that Section 64 of the Act not only enumerates the persons who are entitled to file appeals against the order of the Regional Transport Authority but also lays down the powers of the Appellate Authority and the nature of order which it can pass. On a plain reading of Section 64 we are not prepared to accept this contention. Section 64 enumerates the persons or bothes who have been given right to appeal against different orders passed by the Regional Transport Authority. Once an appeal has been filed by the aggrieved person under Clause (a) the Appellate Authority had full jurisdiction to consider all the relevant matters to the grant of permit and determine whether the appellant was a suitable person for the grant of a permit.

It is not disputed that in the present route only one permit could be granted. Under these circumstances if once it is found that the respondent No. 4 had a right to come up in appeal against the order refusing to grant him permit under Section 64 (a) of the Motor Vehicles Act, all the materials being before the Appellate Authority, it could consider the claims of rival claimants and decide whether the permit was properly granted to the petitioner or not. Strong reliance is placed on the case of Dholpur Cooperative Transport and Multi Purpose Union Ltd. v. Appellate Authority, Rajasthan, AIR 1955 Raj 19, Particular attention was invited to the following observations at page 21 of the report:

'The answer is a matter of some difficulty, particularly as in most cases the number of permits to be issued on a particular route is limited under Section 48(a). In the case before us, it has been agreed between the Dholpur and Agra authorities that six permits on the Dholpur-Agra route will be granted by the Dholpur authorities (which means the Regional Transport Authority, Jaipur) and six by the Agra Authorities. Another difficulty, which arises, is that the section does not lay down the nature of order which the Appellate Authority will pass in appeal. It may be argued, because the nature of the order in appeal is not prescribed, that the Appellate Authority may pass any order which it considers just and proper.

At the same time, it cannot be overlooked that Section 64 has seven clauses dealing with specific grievances which give rise to appeal, and it should be clear that the order of the Appellate Authority must have reference to the grievance put before it. For example Section 64 (b) provides for appeal by a person aggrieved by the revocation or suspension of the permit granted to him. Now in such an appeal the Appellate Authority would have the power only to set aside the revocation or suspension, and it can hardly be contended that it would have, while set ting aside the revocation or suspension, the power to revoke or cancel some other person's permit.'

4. Reliance has also been placed on the case of Ramnihora Thakur v. State of Bihar, AIR 1958 Pat 293. The decision in this case is based entirely on its own facts. It was clearly found by the learned Judges on the materials before them that no foundation was laid before the Regional Transport Authority for opposition and it could not be said that the grant of permit had been opposed before the Regional Transport Authority. In these circumstances, it was held that in an appeal under Section 64 (a) the Appellate Authority had no power to cancel the permit. Another case relied upon is Kishanchand Narsingdas Bhatta v. Appellate Authority, Madhya Bharat, AIR 1956 Madh-B 231. In that case it was observed that 'there are limitations on the powers of the Appellate Authority and in an appeal under Section 64(a) it cannot take into account matters or objections for which no foundation was laid by making representations against the petitioner's application.

It is not possible to accept the contention that the Appellate Authority is not bound by limitations which govern the grant of permit by the Regional Transport Authority and that it is free to deal with Appeal and acts on any material which was not there when the permit was granted to the petitioner by the Regional Transport Authority.' These cases in our mind do not lay down that in cases where the appeal has been filed by a person against refusal to grant permit to him under Section 64(a), the order granting permit to respondent cannot be quashed. In the present case where admittedly there was scope for grant of only one permit and the petitioner and the respondent No. 4 were the rival candidates along with others for the grant of the same, it cannot be Said that the respondent No. 4 did not oppose the grant of permit to the petitioner.

The fact that he applied for grant of permit to himself in preference to the applicants amounts to an opposition to the grant of permit to the petitioner, and it cannot be said that no foundation was, laid before the Regional Authority by making representations against the grant of permit to the petitioner. On that ground also these cases are distinguishable. In the case of Nadar Transports Tiruchirapalli v. State of Madras, AIR 1953 Mad 1, it was observed by the Madras High Court as follows :

'Clauses (a) and (f) of Section 64 are intended to apply to different situations. Clause (a) is confined only to cases where a person is aggrieved by the refusal of the Regional Transport Authority to grant a permit to him or is aggrieved by any condition attached to a permit granted to him. There may be a person who while applying for the grant of a permit for himself has also objected to the grant of a permit to the other. In such a case if the permit is refused to him he would fulfil the conditions of both Clauses (a) and (f). There may be a person who though he had not applied for a permit to himself, was a person who provided transport facilities and opposed the grant of a permit to another, and if the permit is granted to the other, notwithstanding that he did not apply for a permit he would be entitled to prefer an appeal against the order under Clause (f). though he would not answer the description in Clause (a) as a person aggrieved by the refusal of the Regional Transport Authority to grant a permit and though he opposed the grant or the permit only formally and not by a representation in writing as required by Section 57, Sub-sections (3) and (4).'

We are in Agreement with these observations. There is a distinction between the representation contemplated under Section 56 (4) and the opposition which is a condition precedent for the exercise of a right of appeal under Section 64 (1) (f) of the Act. As we have observed the petitioner and the respondent No. 4 being rival candidates for the grant of the permit, opposition is implied. It cannot be said that there was no material before the Appellate Authority on which it could decide the respective claims of the parties in a proper appeal by the respondent under Section 64(a). To the same effect is the case of S. Gopala Reddi v. Regional Transport Authority, North Arcot, (S) AIR 1955 Mad 386.

5. Once an appeal is filed under Clause (a) of Section 64, the Appellate Authority is fully seized of the matter and could dispose of the rival claims of the parties on the materials before it. In the present case the petitioner was impleaded as opposite party in the appeal by the respondent No. 4; notice was issued to him, he was given an opportunity to defend his case,--the Appellate Authority had thus the entire materials before it and could dispose of the matter. In this view of the matter, it is not necessary for us to consider if the objection made by the Bus Association with regard to the increased number of buses on that route could be regarded as an opposition to the grant of permit to the petitioner. In the result, therefore, we see no force in this petition and it is rejected with costs.

Deka, J.

6. I agree with my learned brother and do not propose to discuss all the points except that I would like to add a few lines on a particular point. The case as sought to be made at the stage of the hearing was not initially made in the application itself and as such, the basis of the argument on the ground that respondent No. 4 did not oppose the grant of a permit to the petitioner might have been completely ruled out. But in view of the fact that the point had been later argued in Court, my learned brother has been pleased to consider that point as stressed by the learned Advocate for the petitioner. Mr. Sen seemed to argue that Clause (f) of Section 64 of the Motor Vehicles Act should be read along with Clause (a) of that section for all purposes, but I do not think that it is the correct view of law.

Different clauses of Section 64 clearly point out the class of person or persons who may prefer an appeal against the sort of orders suggested in different clauses. Section 64(a) relates to an appeal by persons who are aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, and Clause (f) of that section relates to an appeal by a local authority or police authority or an association which, or a person providing transport facilities who, having opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto. Therefore, the two clauses speak of right to file appeals by two sets of persons who may be differently hit. In the present case respondent No. 4 comes within the category of persons described in Clause (a) of Section 64 he having sought for a permit and being refused one.

It would be equally distinct that the Goalpara Bus Association comes within the definition or an Association or a group of persons providing transport facilities who might have objected by way of appeal under Clause (f) of Section 64. It is very doubtful whether we can describe the respondent No. 4 to be a person 'providing transport facilities', because he files only an appeal in his capacity of a disappointed candidate for grant of a permit. I fully agree with the observations of my learned brother in his reference to the case reported in AIR 1953 Mad 1, that there may be two classes of persons availing of the rights of appeal and the Appellate Authority was within its jurisdiction to hear the appeals taking the entire view of things as a Court of appeal under the law. I, therefore, agree that the rule may be discharged with cost,--hearing fee Rs. 100/-.

Subject	;Motor Vehicles
Court	Guwahati High Court
Decided On	Nov-25-1958
Case Number	Civil Rule No. 31 of 1958
Judge	H. Deka and G. Mehrotra, JJ.
Acts	Motor Vehicles Act, 1939 - Sections 56(4), 60, 64 and 64(1)
Appellant	Benoy Kumar Chakrabarty
Respondent	State of Assam and ors.
Appellant Advocate	K.P. Sen, Adv.
Respondent Advocate	R.K. Goswami, Jr. Govt. Adv.

Benoy Kumar Chakrabarty Vs. State of Assam and ors. - Court Judgment