Narayan Chandra Jena Vs. State Transport Authority and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - however, the consideration by the regional transport authority as well as the representations objecting to the application are to be confined only to the adequacy of the number of the contract carriages runningin the region and the consideration of public interest to weigh with the regional transport authority is also in relation to the number of the vehicles plying in the region as satisfying the public interest. it is well-known that when a statute confers power on an authority and also provides as to what are the relevant considerations for exercise of that power, it is not open to such authority to exercise power on considerations other than those provided for in the statute. pal is well founded. but the audi alteram partem rule is of universal application and law is well settled that when a statute is silent regarding observance of the principles of natural justice, the rule shall be read into the statute as an inbuilt provision. it is also well settled that failure to observe natural justice cannot be justified merely because the authority vestedwith the powers to decide is of the opinion that granting of such opportunity would be an exercise in futility since the person to be condemned can have nothing more to add. there are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place, the apprehended danger and so on.l. rath, j.1. the issues whether an application for renewal of the contractcarriage permit can be refused on the consideration of past conduct of the permit,holder and whether before such order ofrefusal is passed, the applicant is entitled to a hearing are questions which fall for decision in this application made under arts. 226 and227 of the constitution.2. the facts adumbrated are that the petitioner, before expiry of his all orissa contract carriage permit, had applied for renewal of the permit. no representations had been filed against such renewal application, but the chairman, state transport authority, orissa, by his order dt. 27-5-1985 (annexure 1) rejected the application on basis of the v.c.r. (vehicle check report) statements showing that the vehicle had been found on three occasions being utilised as stage carriage and on few occasions it had been found plying with passengers in excess of the prescribed seating capacity. an appeal was carried by the petitioner before the state transport appellate tribunal, orissa which was also rejected holding that on several previous occasions the petitioner's vehicle had been found to be plying in contravention of the permit conditions by either being used as a stage carriage vehicle or overloading the same, which offences he had compounded by paying penalty and hence the application had been rightly rejected. besides the tribunal also held there was no necessity of observance of the principles of natural justice since in view of the established facts, there was no explanation which could have been submitted by the petitioner against the allegations.3. so far as the first contention is concerned, it would be useful to refer to some of the provisions of the motor vehicles act (briefly, the act) and the orissa rules framed thereunder. an application for permit to use a vehicle as a contract carriage is made under section 49 of the act. the regional transport authority grants the permit under section 51 of the act and in so granting, may burden the permit with any one or more of the conditions set out in the section. section 57(1) states that an application for contract carriage permit may be made at any time and section 58(2) directs that an application for renewal of a permit has to be made not less than sixty days before the expiry of the permit and has to be disposed of as if it were an application of a permit. the renewal applications are entitled preference over newapplications. section 57(6) stipulates that : --'57(6) when any representation has been made by the persons or authorities referred to in section 50 to the effect that the number of contract carriages for which permits have already been granted in any region or any area within a region is sufficient for or in excess of the needs of the region or of such area, whether such representation is made in connection with a particular application for the grant of a contract carriage permit or otherwise, the regional transport authority may take any such steps as it considers appropriate for the hearing of the representation in the presence of any persons likely to be affected thereby.'section 30 of the act runs as follows : --'50. procedure of regional transport authority in considering application for contract carriage permit:-- a regional transport authority shall, (in considering an application for) a contract carriage permit, have regard to the extent to which additional contract carriages may be necessary or desirable in the public interest; and shall also take into consideration any representations which may then be made or which may previously have been made by persons already holding contract carriage permits in the region or by any local authority or police authority in the region to the effect that the number of contract carriages for which permits have already been granted is sufficient for or in excess of the needs of the region or any area within the region.'a bare perusal of sections shows that considerations available to weigh with the regional transport authority in dealing with an application for contract carriage permit is only regarding the extent to which additional contract carriage is necessary or desirable in public interest and in so considering he is to take into consideration any representation which might have been made by the persons who are already holding contract carriage permits in the region or similar representations by any local authority or police authority. however, the consideration by the regional transport authority as well as the representations objecting to the application are to be confined only to the adequacy of the number of the contract carriages runningin the region and the consideration of public interest to weigh with the regional transport authority is also in relation to the number of the vehicles plying in the region as satisfying the public interest. thus the only factor which is to be considered in granting a contract carriage permit is the number of the contract carriage vehicles plying in the region. the public interest is also not public interest in general but is the decision as to whether any additional contract carriage is necessary in public interest. all other considerations are extraneous and outside the ambit of section 50. the factors to weigh in grant of a contract carriage permit are different than the factors to be taken into consideration under section 47 for grant of a stage carriage permit where interest of the public generally is also a relevant consideration unlike that of contract carriages. contract carriage is defined in section 2(3) to mean only a vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicle as a whole either on a time basis whether or not with reference to any route or distance or from one point to another with a further prohibition that it shall not stop to pick up or set down, along with the line of route, passengers not included in the contract. the contract carriage thus, as the very name signifies, is a vehicle taken on contract for a specific purpose. it is primarily a matter of contract between the two parties. such a contract between the two parties can be controlled by a statutory authority only to the extent as specified in the statute which, so far as grant of permit is concerned, extends under section 50 only to consider the interest of the public as to whether the existing number of permits justify grant of any other permit. no other limitations can be read into the independent contract between the two parties. in this view of the matter, the past conduct of the applicant is not a relevant factor to be considered for renewal of a permit. besides such conduct of the petitioner had been compounded by payment of penalty as assessed. it cannot again form the basis for refusal of the renewal of permit to him.4. this view is also supported by the earlier bench decisions of this court reported in (1971) 1 cut wr 115, (bibhutibhusan mukherjee v. regional transport authority, puri) in which it was held :'so far as applications for contract carriage permits are concerned, section 60 contains factors for consideration by the r.t.a. in disposal of the application. they are : (a) inadequacy of the existing service and (b) necessity for grant of additional permits in public interest,' in another unreported decision in o.j.c no. 2395/84, (shyam sundar agarwala v. chairman, r.t.a., koraput) disposed of on17-12-1984 discussing section 50, it was observed : 'x x x a bare reading of the aforesaid provision indicates that the regional transport authority while considering an application for contract carriage permit shall have regard to the fact that whether the addition of the contract carriage would be necessary or desirable in the public interest and further they shall take into consideration any representation which may be made by persons already holding contract carriage permits in the region or by any local authority or police authority in the region. but all these representations must relate to one fact, namely, whether the number of contract carriages for which permits have already been granted is sufficient for or in excess of the needs of the region or any area within the region. it is well-known that when a statute confers power on an authority and also provides as to what are the relevant considerations for exercise of that power, it is not open to such authority to exercise power on considerations other than those provided for in the statute. section 50 of the act prohibits all irrelevant considerations or consideration of all irrelevant matters in the matter of granting a permit for contract carriage and what is relevant is whether the number of contract carriages already on the route is sufficient and whether the permit applied for would be in the larger interest of the public.' to run a contract carriage is unquestionably a fundamental right. as was expounded in air 1979 sc 114, (d. nataraja mudaliar v. state transport authority, madras) such fundamental right can only be restricted reasonably for which the provisions have been made in the motor vehicles act wherein section 50 of the act specifies the guidelines. as regards renewal of permit the hon'ble court observed as follows'the authority must remember that a permit holder has an ordinary right of renewal unless it is shown that outweighing reasons of public interest lead to a contrary result, permits are not bounty but right, restricted reasonably by the motor vehicles act.'the hon'ble court further observed, as regards the guidelines for grant of the permit, as follows : --'the key criterion when a contract carriage permit is sought, is to ask oneself whether an extra vehicle is unnecessary or undesirable in the public interest, and whether, further, the permits already granted are sufficient for or in excess of the needs of the region. after all, a few hundred vehicles admittedly ply and one contract carriage operator is asking for a single permit. what makes it unnecessary or undesirable in the public interest ordinarily, having regard to the explosive increase in traffic in our country, more vehicles are needed. of course, if the roads are in a precarious condition or competitive racing or reckless driving on the roads make for hazards or if the operator is otherwise disqualified, one may reduce the number of vehicles and refuse permit or renewal. nothing of the sort is mentioned in any of the orders rejecting the permit. assuming there are around 300 or 400 motor vehicles, how does one more become too many it is a preposterous proposition to say so, in the absence of some evidence. if there is no evidence to warrant such a conclusion the right to the permit must prevail.'it is thus no longer res integra that nothing but the necessity in public interest of adding a new contract carriage to the already existing ones is relevant for grant or renewal of contract carriage permit. the consideration is not a vague surmise, but is liable to be based on objective considerations itself founded on relevant data and materials as to whether the increase in the number of permits would affect public interest.5. it is however contended by the learned standing counsel (transport) that since the aforesaid observations of hon'ble supreme court refers to 'overweighing reasons of public interest' it should be construed as if it has been held that public interest in generalshould weigh with the authorities in granting or refusing the permit. the argument though ingenious, yet must be rejected forthwith. it is without ambiguity that their lordships have used 'public interest' only in the background of use of the words in section 50 of the act and not otherwise. it was also further contended by the learned standing counsel that since in the aforesaid observations, it was stated that the number of vehicles may be reduced and permit may be refused if the 'operator' is otherwise disqualified', it should be held that the refusal or renewal of the permit is justified. the submission is wholly misconceived. it is not the case of the state that the petitioner was in any way otherwise disqualified. 'disqualification' as contemplated by their lordships in the passage quoted above is one which emanates from any law. such a disqualification must be prescribed either by a legislation or through subordinate legislation wherever permissible. no such prescription of law is pointed out that a person, whose past conduct is such as that of the petitioner, suffers from a disqualification to renew his permit. the contention thus merits rejection.6. the next question which has been urged by mr. pal, the learned counsel appearing for the petitioner, is that the order by the chairman, regional transport authority was passed behind his back without affording him any opportunity to be heard and in the appeal the tribunal rejected his contention holding that lack of opportunity to be heard did not cause any prejudice to the petitioner since even if he would have been heard, yet it would not have improved the matters in any manner. the objection raised by mr. pal is well founded. it is true that section 50 in terms does not provide for granting an opportunity to be heard. but the audi alteram partem rule is of universal application and law is well settled that when a statute is silent regarding observance of the principles of natural justice, the rule shall be read into the statute as an inbuilt provision. the rule must be held to be a necessary postulate in all cases where a decision is to be taken affecting a person's rights or interest unless such rule is specifically excluded by the relevant statute. it is also well settled that failure to observe natural justice cannot be justified merely because the authority vestedwith the powers to decide is of the opinion that granting of such opportunity would be an exercise in futility since the person to be condemned can have nothing more to add. non-observance of natural justice is itself a prejudice and independent proof of prejudice due to denial of natural justice is unnecessary. the principle has been upheld again and again by the hon'ble supreme court vide air 1981 sc 136, (s. l. kapoor v. jagmohan) and air 1981 sc 818, (swadeshi cotton mills v. union of india) and recently in air 1986 sc 180, (olga tellis v. bombay municipal corporation) wherein hon'ble chief justice chandrachud spoke as follows : --'it must further be presumed that, while vesting in the commissioner the power to act without notice, the legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. in all other cases, no departure from audi alteram partem rule (hear the other side') could be presumed to have been intended. section 314 is so designed as to exclude the principles of natural justice by way of exception and not as a general rule. there are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place, the apprehended danger and so on. the ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. the hearing may be given individually or collectively, depending upon the facts of each situation. a departure from this fundamental rule of natural justice may be presumed to have been intended by the legislature only in circumstances which warrant it. such circumstances must be shown to exist. when so required, the burden being upon those who affirm their existence.'since admittedly, the order of the chariman was passed behind the back of the petitioner, the order is also liable to be struck down on such count.7. in view of the aforesaid discussions,the petition must succeed and the orderspassed by the chairman, state transportauthority, orissa, cuttack refusing to renewthe permit of the petitioner and the order of the tribunal confirming the same must be quashed. the chairman, state transport authority must dispose of the renewal application of the petitioner afresh within a period of three months keeping in view the observations made above. let a writ of certiorari be issued accordingly. hearing fee is assessed at rs. 200/-.g.b. patnaik, j.8. i agree.