Patna High Court
Sarju Prasad Singh vs Chotanagpur Regional Transport ... on 22 August, 1969
Equivalent citations: AIR1970PAT288, AIR 1970 PATNA 288
JUDGMENT B.D. Singh, J.
1. The petitioner obtained a rule nisi calling upon the respondents to show cause why the resolution of the Chotanagpur Regional Transport Authority, respondent No. 1 (hereinafter referred to as the R. T. A.) dated 27-8-66 (Annexure B), the order of the Appeal Board (Annexure C) and the order dated 15-6-67 (Annexure D) passed by the Minister of Transport under Section 64A (Bihar Amendment) of the Motor Vehicles Act, 1939 (hereinafter called, the Act) be not quashed, and why the permit in question be not granted to the petitioner.
2. Respondent No. 1 published a notice in the Bihar Gazette dated the 6th February, 1963 inviting applications for the grant of one stage carriage permit for one up and down daily service for the 164 miles route. Ranchi Murisemar via Daltonganj and Relha. The petitioner, respondent nos. 4 and 5 and some others filed applications for the grant of the said permit. On the 27th of August, 1966, the R. T. A., considered the applications and the applicants present before the R. T. A. were heard, and their claims were recorded. The claims of the petitioner and respondent No. 4 Messrs. Ganga Motor Service were recorded as follows:
"45. Sri Sarju Prasad Singh, Aurangabad, Gaya--Experience of 20 years. Offers to place latest model bus. Running inter-State service also. Has got night-service between Ranchi and Garhwa. This service should go to fleet owner."
"18. M/S. Ganga Motor Service, Cart Road, Ranchi--Experience of 35 years. Displaced operator. Lost 17000 miles both-ways. Compensated with 500 miles. Has produced no objection certificate from the Additional Superintendent, Commercial Taxes, Ranchi Circle. Has workshop and Garage. Offers to place 1966 model bus."
The claim of respondent No. 5 was also recorded but the present application was not resisted by respondent No. 5 nor any argument was advanced on behalf of respondent No. 5, hence it is not necessary to quote the claim of respondent No. 5. After consideration of their claims respondent No. 1 granted permanent permit to respondent No. 4 by resolution dated 27th of August 1966 (Annexure B). The petitioner and four others appealed against the aforesaid resolution before the Appeal Board of the State Transport Authority, Bihar (respondent No. 2). The appeal was heard by the Board on the 23rd of January, 1967 and was rejected by order contained in Annexure C. Aggrieved by the said decision of the Appeal Board, the petitioner filed a representation under Section 64A (Bihar Amendment) of the Act before the then Minister of Transport which was rejected by order dated 15-6-67 (Annexure D).
3. Mr. Lal Narayan Sinha, learned counsel appearing on behalf of the petitioner, submitted that the petitioner maintained night service between Ranchi and Garhwa, which is substantial portion of the route advertised, and was in a position to give better facilities to the public, but in spite of that respondent No. 1 (R. T. A.) granted permit to respondent No. 4, on extraneous consideration that the proprietor of M/S. Ganga Motor Service (respondent No. 4V was a displaced operator. On appeal also, the Appeal Board without applying his mind to the claims of the petitioner vis-a-vis respondent No. 4, rejected the appeal, without giving reasons as to why his application was being rejected. He has drawn our attention to the last paragraph of the order of the Appeal Board, the relevant portion of which reads:
"The Appeal Board has to see, whether the R. T. A. had exercised its discretion improperly or illegally. . . .I do not think there is scope for interference with the R. T. A.'s decision. . . "
Learned counsel submitted that by these two sentences it can hardly be inferred that the Appeal Board applied its mind to the claim of the petitioner. The Appeal Board did not at all discuss petitioner's claims; nor gave any reason as to why it rejected the appeal. In another portion of the judgment it simply narrated the grounds of appeal of the petitioner, without any discussion.
In my opinion, the contention of learned counsel is well founded. It is not at all speaking order; nor any reason has been given by the Appeal Board as to why the claims of the petitioner were rejected in comparison with the claims of respondent No. 4.
4. Mr. Basudeva Prasad, learned counsel appearing on behalf of the respondent No. 4, fairly conceded that the Appeal Board has not applied its mind, but he submitted that so far the order of the Minister contained in Annexure D is concerned, it is a reasoned order and should not be interfered with by this Court under its writ jurisdiction.
On the other hand, learned counsel appearing on behalf of the petitioner submitted that even the order of the Minister suffers from the same defect. He also has not given reasons for discarding the claims of the petitioner. He has drawn our attention to the impugned order of the Minister, and submitted that more or less the Minister also followed the same pattern in disposing of the representation of the petitioner. In paragraphs 1 to 4 he recited the contention of both the parties, and in paragraph 5 he simply mentioned that after hearing the parties and after perusing the records filed by them he did not find any substance in the representation of the petitioner (Sarju Prasad Singh), whereas respondent No. 4 (M/s. Ganga Motor Service) owned a garage as well as a workshop at Ranchi; it was running a service between Ranchi and Sabbalpur, and it had sufficient experience of that locality. Besides, its proprietor was also a displaced operator. Therefore, he ordered that it was better to giant permit to respondent No. 4.
Learned counsel submitted that even the petitioner had workshop and had to his credit an experience of 20 years. Besides, he had also night service between Ranchi and Garhwa which was a substantial portion of the route advertised. According to him the Minister ought to have given reasons as to why his claims were without substance. He ought to have compared the claims of the petitioner vis-a-vis respondent No. 4, before coming to the conclusion; so that the petitioner could easily know what were the reasons for discarding his claims. He further urged that taking into consideration the fact that respondent no, 4 was a displaced operator was an extraneous consideration and should not have weighed with the Minister. He has drawn our attention to Section 47 (1) (a) and (d) of the Act, which provides that a Regional Transport Authority shall, in considering an application for a stage carriage permit, have regard to the following matters, namely:
"(a) the interests of the public generally;
XX XX XX
(d) the benefit to any particular locality or localities likely to be afforded by the service;"
According to him, those were the main considerations for deciding the issue. He has also referred to Section 43A of the Bihar Amendment which reads:
"The State Government may issue such orders and directions as it may consider necessary, in respect of any matter relating to road transport, to the State Transport Authority or Regional Transport Authority; and such Transport Authority shall give effect to all such orders and directions."
According to him, the provision contained in Section 43A should not be interpreted as authorising the Government to issue orders and directions to the authorities exercising quasi-judicial powers. Therefore, he submitted that even if the State Government acting under Section 43A had issued any executive direction regarding consideration of displaced operator it should not have weighed with the decision of the R. T. A., Appeal Board, and the Minister, while disposing of the claims of the petitioner vis-a-vis respondent No. 4, In order to support his contention he relied on a decision of the Supreme Court in B. Rajagopala Naidu v. State Transport Appellate Tribunal, Madras AIR 1964 SC 1573 where their Lordships at page 1580 observed:
"(20) There is another consideration which is also important. If Section 43A authorises the State Government to issue directions or orders in that wide sense, Section 68 would become redundant and safeguards so elaborately provided by Section 133 while the State Government purports to exercise its authority under Section 68, would be meaningless. If orders and directions can be issued by the State Government which are not distinguishable from statutory rules, it is difficult to see why Section 68 would have dealt with that topic separately and should have provided safeguards controlling the exercise of that power by Section 133.
(21) It is likewise significant that directions and orders issued under Section 43A are not required to be published nor are they required to be communicated to the parties whose claims are affected by them. Proceedings before the Tribunals which deal with the applications for permits are in the nature of quasi-judicial proceedings and it would indeed be very strange if the Tribunals are required to act upon executive orders or directions issued under Section 43A without conferring on the citizens a right to know what those orders are and to see that they are properly enforced. The very fact that these orders and directions have been consistently considered by judicial decisions as administrative or executive orders which do not confer any right on the citizens emphatically brings out the true position that these orders and directions are not statutory rules and cannot therefore seek to fetter the exercise of quasi-judicial powers conferred on the Tribunals which deals with applications for permits and other cognate matters."
He contended that the Minister ought to have given reasons for discarding the claims of the petitioner as he was exercising quasi-judicial power and he relied on a decision of the Supreme Court in Bhagat Raja v. Union of India, AIR 1967 SC 1606 where their Lordships at p. 1610 in paragraph 9 observed:
"(9) Let us now examine the question as to whether it was incumbent on the Central Government to give any reasons for its decision on review. It was argued that the very exercise of judicial or quasi-judicial powers in the case of a tribunal entailed upon it an obligation to give reasons for arriving at a decision for or against a party. The decisions of tribunals in India are subject to the supervisory powers of the High Courts under Article 227 of the Constitution and of appellate powers of this Court under Article 136, It goes without saying that both the High Court and this Court are placed under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word 'rejected', or, 'dismissed'. In such a case, this Court can probably only exercise its appellate jurisdiction satisfactorily by examining the entire records of the case and after giving a hearing, come to its conclusion on the merits of the appeal. This will certainly be a very unsatisfactory method of dealing with the appeal. Ordinarily, in a case like this, if the State Government gives sufficient reasons for accepting the application of one party and rejecting that of the others, as it must, and the Central Government adopts the reasoning of the State Government, this Court may proceed to examine whether the reasons given are sufficient for the purpose of upholding the decision. But, when the reasons given in the order of the State Government are scrappy or nebulous and the Central Government makes no attempt to clarify the same, this Court, in appeal may have to examine the case de novo without anybody being the wiser for the review by the Central Government. If the State Government gives a number of reasons some of which are good and some are not, and the Central Government merely endorses the order of the State Government without specifying those reasons which according to it are sufficient to uphold the order of the State Government, this Court, in appeal, may find it difficult to ascertain which are the grounds which weighed with the Central Government in upholding the order of the State Government. In such circumstances, what is known as a 'speaking order' is called for."
5. Learned counsel basing his contention on the above observations emphasised that it was incumbent upon the Minister to have indicated in his order as to what was the reason which impelled him to decide against the petitioner. Even assuming that the Minister was not in favour of encourging monopoly as hinted by learned counsel for the petitioner, it was necessary for him to say so, so that this Court may examine under the supervisory power as to whether he had given valid reasons or not or whether he applied his mind in the interest of the public, as provided under Section 47 of the Act,
6. On the other hand, Mr. Prasad, appearing on behalf of respondent No. 4, contended that the order of the Minister was valid and needed no interference by this Court under writ jurisdiction. The permit was granted to the respondent No. 4 not solely on the ground of being a displaced operator. Apart from experience, this was considered as an additional ground. He contended that the principles laid down in AIR 1964 SC 1573 (supra), which has been relied by the petitioner, are not applicable to the instant case. He has drawn, our attention to paragraph 24 of the judgment. In that case, according to him, the R. T. A. was solely guided by the direction given by the State Government under Section 43A of the Act, but in the instant case no such direction was given to the R. T. A. Neither the R. T. A., nor the Appeal Board nor the Minister has considered the same as per direction by the State. He further submitted that none of them can be said to have been influenced by such a direction. In the present case the fact that the proprietor of M/s. Ganga Motor Service was a displaced operator was taken as an additional ground for granting the permit, and it was not taken as the sole ground therefor. He referred to an unreported judgment of this Court in M. J. C. No. 276 of 1962, D/- 10-12-1965 (Pat) where their Lordships were considering a similar point as to whether the Minister was influenced by the direction given by the State Government under Section 43A of the Act. There also AIR 1964 SC 1573 (supra) was relied and referred to by the petitioner of that case. Their Lordships observed that the argument of the petitioner could not be sustained. Their Lordships held that if the sole ground for preferring a person was that he was displaced operator, there might have been some force in the contention, but if the Minister thought that a person who was experienced and who was also a displaced operator should be given preference, he committed no error of law apparent on the face of the record. Their Lordships also made it clear in the said judgment that by giving preference to displaced operators the tendency for monopolistic control may be very much checked as pointed out by their Lordships of the Supreme Court in Sri Rama Vilas Service (P) Ltd. v. C. Chandrasekharan, AIR 1965 SC 107,
7. In my judgment, this contention of learned counsel for the respondents is well grounded. In the instant case also, the R. T. A. or the Minister has not granted the permit on the sole consideration that the proprietor of respondent No. 4 was a displaced operator. Therefore, clearly the principles laid down in AIR 1964 SC 1573 (supra) are not applicable to the present case.
In my opinion, the crucial question to be decided in the instant case is whether the Minister while passing the order has given reasons for rejecting the representation of the petitioner. Mr. Prasad, appearing for the respondent, submitted that the order of the Minister is speaking order. He has drawn our attention to paragraph 3 of the order wherein the Minister referred in detail to the claims of petitioner regarding his experience in the line because he was plying several buses on the route Ranchi-Daltonganj and he owned garage also. According to him, this shows that he definitely had in his mind the claims of the petitioner and in paragraph 5 he clearly mentioned that after hearing the parties and after perusing the records, he found that the representation filed by the petitioner had no substance. Thereafter he observed that M/s. Ganga Motor Service had garage and workshop at Ranchi and was running service from Ranchi to Sabbalpurand had also sufficient experience of service. He further added that the proprietor of M/s. Ganga Motor Service was also a displaced operator. Therefore, he ordered that it was valid and proper to grant permit to M/s. Ganga Motor Service. Learned counsel urged that nothing else was needed. He considered the claims of both the parties and then came to a definite conclusion. In order to support his contention he relied on a decision in P. I. Scaria y. P. K. Krishnan Nair AIR 1957 Trav-Co. 254 where their Lordships observed that where reasons were given by the Road Traffic Board in the order refusing an application for permit, the fact that the order could with advantage have been written in a more detailed and elaborate fashion, was no reason to hold that it did not comply with the provisions of Sub-section (7) of Section 57 of the Act. Learned counsel further urged that the Minister by giving permit to respondent No. 4 was also controlling monopolistic tendency as the petitioner was already running the bus on the major portion of the route and relied on the decision of the Supreme Court in AIR 1965 SC 107, referred to above.
8. I am not impressed with this contention of learned counsel for the respondent. If the Minister did not grant permit to the petitioner in order to avoid monopoly, he ought to have said so clearly in the order. The Minister in his order has not given reasons as to why he did not find any substance in the representation filed by the petitioner. A litigant is expected to know the reasons for dismissal of his application so that he may, if advised, take necessary step against the said order. It is well established that the order of the Minister is subject to the supervisory powers of the High Court under Article 227 of the Constitution. If reasons are not given in the order this Court also is placed under a great disadvantage. In such circumstances what is known as "speaking order" is called for. What will be a "speaking order", it is apparent, depends upon the facts and circumstances of each case. In my view, in the instant case the Minister has not given reasons for rejecting the representation of the petitioner. It is true that he enumerated the contentions and the claims of both the parties; it is also true that he stated in his order that after hearing the parties, and perusing the records, he did not find any substance in the representation of the petitioner, but in my judgment, that is not enough. He ought to have compared the claims of both the parties, and then ought to have stated as to why he thought the claims of M/s. Ganga Motor Service superior to those of the petitioner. Even while enumerating the claims of the petitioner, it seems that he omitted to consider the petitioner's claim regarding the night service. According to me, the decision in AIR 1957 Trav-Co. 254 (supra), which has been relied by learned counsel for the respondent, is not applicable in the instant case. In that case, as it appears from paragraph 4 at page 255, reasons were given both in Ext. A the order of the Road Traffic Board, and in Ext. B, whereas the order of C. R. T. B, was merely confirming the order of the Road Traffic Board. In those circumstances, it was considered that it was not necessary to give reasons in the terms of Section 57, Clause (7) of the Act. In the instant case, it is admitted case of the parties that the order of the Appeal Board is not at all "speaking order". In that view of the matter, when the representation was made by the petitioner against that order, it was incumbent upon the Minister, if he wanted to reject the representation to give sufficient reasons to enable this Court to judge whether the reasons for rejection were valid. The words "as it thinks fit" appearing in Section 64A of the Act (Bihar Amendment) cannot be equated with the words "to its, own satisfaction". A Minister may be empowered to confirm or refuse a permit. In making his decision he is entitled to exercise a very wide discretion, but he is under a legal duty to give reasons; the repository of a discretion is under a legal duty to observe certain requirements that condition the manner in which its discretion may be exercised. In Padfield v. Minister of Agriculture, Fisheries and Food, (1968) 1 All LR 694 it was observed that where a statute conferring a discretion on a Minister to exercise or not to exercise a power did not expressly limit or define the extent of his discretion and did not require him to give reasons for declining to exercise the power, his discretion might nevertheless be limited to the extent that it must not be so used, whether by reason of misconstruction of the statute or other reason, as to frustrate the objects of the statute which conferred it. It can hardly be disputed that while granting a permit under the Act, the interest of the public generally, and the benefit to any particular locality or localities likely to be affected by the service are of paramount importance. A Minister is a public Officer appointed to discharge a public discretion affecting members of the public; if he does not give any reason for his decision it may be, if the circumstances warrant it, that a court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion and directing him by a prerogative writ to reconsider it. The authority must genuinely address itself to the matter before it. It must have regard to all relevant considerations and must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act and must not act arbitrarily. It is desirable that the authority should openly state any general principle by which it intends to be guided in exercise of its discretion. I am convinced that in the instant case, the Minister has not discussed the claims of the respective parties and has not given reasons for rejecting the representation of the petitioner. It is not a "speaking order". Therefore, it cannot be sustained. It has got to be quashed and the case remitted back for a fresh hearing and decision of the petitioner's representation in the light of observations made above and in accordance with law. The State of Bihar is at present under President's Rule, hence instead of the case being transmitted to the Minister of Transport, let it be transmitted to the Adviser to the Governor of Bihar (in charge of Transport Portfolio) for disposal.
9. In the result, the application is allowed, but in the circumstances there will be no order as to costs. It will however, be open to the respondent No. 4 to move the Adviser concerned to allow him to ply the service pending the final disposal of the representation of the petitioner.
A.B.N. Sinha, J.
10. I agree.