Patna High Court
Akahaybat Prasad Singh vs The Under Secretary To The Govt. Of Bihar ... on 19 July, 1972
Equivalent citations: AIR1973PAT39, AIR 1973 PATNA 39
JUDGMENT Untwalia, J.
1. The facts for the disposal of this writ petition may be stated in a narrow compass.
2. An advertisement was published in the Bihar Gazette on 5-2-69 inviting applications for grant of one permanent stage carriage permit for the route Alouli-Khagaria-Bakhri to run the service two times up and down. The petitioner along with respondent No. 4 and others applied for the grant of the permit. The East Bihar Regional Transport Authority, respondent No. 2, considered the applications in their meeting held on 7-8-69 and granted permit to respondent No. 4. The application of the petitioner, however, was not considered as he failed to be present either personally or through any authorised agent before the Regional Transport Authority at the time when the applications for the grant of the permit were being considered. It was rejected on that ground alone. The order of the Regional Transport Authority dated 7-8-69 is Annexure 1 to the application. The petitioner filed an appeal against the order of the Regional Transport Authority. The Appeal Board dismissed the appeal by its order dated 22-1-70, (Annexure 2). The petitioner then filed a revision before the State Government under Section 64 of the Motor Vehicles Act, hereinafter to be referred to as the Act, as it stood under the Bihar amendment This application in revision was dismissed in limine by the State Government by order dated 7-4-70 (Annexure 3). The petitioner has obtained a rule against the respondents to show cause why the orders, Annexures 1, 2 and 3 be not called up and quashed.
3. Mr. Amlakant Choudhury, learned counsel for the petitioner, urged the following points in support of this application (i) That the petitioner had offered to give the latest model bus of 1969 in accordance with a terra of the advertisement that preference would be given to one who would give the latest model bus, while respondent No. 4 has been granted permit by the Regional Transport Authority on his offering to give a bus of 1968 model; (ii) that respondent No. 4 was a minor at the time the permit was granted to him and, therefore, permit could not be or ought not to have been granted to him; (iii) that the orders of the Appeal Board and of the Transport Minister (Annexures 2 and 3 respectively) are not speaking orders and (iv) that the Regional Transport Authority could not dismiss the petitioner's application without considering it on merits merely because of his absence.
4. The first point urged on behalf of the petitioner was not pursued when the correct term of the advertisement was pointed out to learned counsel. The term was that preference would be given to one who would give the best model bus and not the latest model. The second point was also given up and for two reasons. It does not appear that such an objection was taken before the Regional Transport Authority. Moreover, it was conceded that a permit can be granted to a minor also in view of the decision in the case of Prayag Choudhury v. K. Raman, AIR 1971 Pat 164. It is not necessary to consider the third point urged on behalf of the petitioner as the fourth one is well founded and must succeed.
5. Sub-section (5) of Section 57 of the Act requires the Regional Transport Authority to dispose of the application for grant of permits at a public hearing at which the applicant and the person making the representation against the applicant shall have an opportunity of being heard either in person or by a duly authorised representative. Subsection (7) says that when a Regional Transport Authority refuses an application for a permit of any kind, it shall give to the applicant in writing its reasons for the refusal. Reading these provisions together and by themselves it would be noticed that the requirement in Sub-section (7) for giving reasons for the refusal does not depend upon the applicant availing of the opportunity given to him for being heard either in person or by a duly authorised representative. The applicant may avail of that opportunity or may not, yet it is incumbent upon the Regional Transport Authority, refusing an application for a permit, to give to the applicant in writing its reasons for the refusal. Mere absence of the applicant cannot be such a reason under the scheme of the Act.
6. Mr. Saptami Jha, learned counsel for respondent No. 4, drew our attention to Clause (f) of Rule 43 of the Bihar Motor Vehicles Rules, 1940. The said clause reads as follows:
"The State or the Regional Transport Authority, as the case may be, may summon any applicant for permit to appear before ft and may decline to grant the permit until the applicant has so appeared, either in person or by an agent authorised by him in writing and until the applicant has furnished such information as may reasonably be required by the Authority in connection with the application."
We were informed at the Bar that on receipt of applications and representations, in relation to the grant of a permit, a general notice is published in the Bihar Gazette in accordance with Sub-section (3) of Section 57 of the Act. Therein, generally no date or time of hearing is mentioned. For this purpose a notice or summon is issued in accordance with Clause (f) of Rule 43. In this case a copy of such a notice issued to the petitioner on our asking was shown to us by learned counsel. This has mentioned the date as 31-7-69 and the time as 1'O clock. The date must have been extended further of which due notice must have been given to the parties, as there is no grievance on that account. But then, the question is, does Rule 43 (f) of the Bihar Rules take away the effect of the law engrafted in Sub-section (7) of Section 57 of the Act? In my opinion, the requirement of personal presence envisaged under Clause (f) of Rule 43 is to furnish such information as may reasonably be required by the Authority. The word "and" occurring between the phrases "authorised lay him in writing" and "until the applicant has furnished such information" is conjunctive and not disjunctive. The harmonious construction of Rule 43 (f) of the Bihar Rules and Sub-sections (5) and (6) of Section 57 of the Act is that an applicant has to be given an opportunity to be present at the hearing of the application. He may be summoned to appear at that meeting. But, his mere failure to be present either personally or through an authorised agent will not entail the dismissal of his application for default. For his absence the application may be dismissed if some more information was required by the Authority which could not be supplied because of the absence. In that event, the Authority will have to say in its order as to what other information was required of the applicant which could not be furnished because of his absence. Otherwise, the application of the applicant giving the ordinary and general information has got to be considered on merits. It could be rejected or allowed as the case may be. To dismiss an application merely for default of the applicant, as has been done in this case is not warranted by law.
7. Learned Counsel for the petitioner, in support of his argument aforesaid, placed reliance upon a Full Bench decision of the Madhya Pradesh High Court in the case of Surendra Mohan Chaurasiya v. State Transport Appellate Authority, M. P., Gwalior, AIR 1970 Madh Pra 230. From the discussions in paragraphs 4, 5 and 6 of the judgment of Dayal, C. J., with whom Bhave and Sen, JJ., appeared to have agreed, it would be noticed that an identical rule like Bihar Rule 43 (f) was there in Madhya Pradesh Which was Rule 45 (f). The notice or summons given in that case, which was similar to the one which has been shown to us, was not accepted to be a notice or summons under Rule 45 (f) of the Madhya Pradesh Rules. I respectfully differ from the said view. In my opinion, the notice of the kind which has been referred to above, must be held to be a notice in accordance with Rule 43 (f) of the Bihar Rules. The ratio of the judgment, however, on a consideration of the provisions of Sub-sections (5) and (7) of Section 57 of the Act, is correct, if I may say so with respect, and I find myself in respectful agreement with it. I am unable to subscribe to the totality of the view expressed by the learned Chief Justice on that point in Surendra Mohan's case. To me it appears on a harmonious construction of the rule and the Act that it is reasonable to take the view which I have already expressed. And since in this case the dismissal of the petitioner's application by the Regional Transport Authority was merely because of the absence of the petitioner, it was bad. It would have been necessary and logical to set aside all the orders and send back the case to the Regional Transport Authority but we were informed by Mr. Jha that the permit was granted to respondent No. 4 in August, 1969, for a period of three years only and since it is to expire in a month's time, it would be of no use if we set aside the order of the Regional Transport Authority and send back the case to it. I accede to this aspect of the matter and while pointing out the correct position of law to the Authorities concerned I think it is not expedient, on the facts and in the circumstances of the case, to set aside the impugned orders.
8. It is, however, to be observed that the permit granted to respondent No. 4 without properly and legally disposing of the application of the petitioner, was not sustainable in law and, therefore, although I have not thought it fit to set aside the order, the case of respondent No. 4 for grant of future permit or renewal thereof will not be weighed on the basis of his experience already gained by him on the basis of the permit in question.
9. In the result, this writ application is dismissed but subject to the observations made above. There will be no order as to costs.
AKBAR HUSAIN, J.
10. I agree.