Patna High Court
Express Auto Service (P) Ltd., Prayag ... vs State Of Bihar on 30 April, 1969
Equivalent citations: 1969(17)BLJR986
JUDGMENT S. Wasiuddin, J.
1. All these three three applications under Article 226 of the Constitution relate to the same matter and common questions of law arise in all these, so all these three applications have been heard together with the consent of the parties and for their convenience. This judgment will, therefore, govern all these applications. C. W. J. C. 284 of 1968 has been filed by M/S Express; Auto Service and C. W. J. C. 326 of 1968 has been filed by Prayag Dutt Thakur for quashing the order of the Minister of Transport dated 8-3-1968, which is Annexure 10 in the writ petition 326 of 1968. In both these applications Ganga Motor Service is respondent No. 4 and C. W. J. C. 1108 of 1968 has been filed by Ganga Motor as abundant caution and it is really as a counter-blast to the aforesaid application Nos. 284 and 326 of 1968.
2. The relevant facts giving rise to all these three applications are common in all these applications and it will not be necessary to give in detail the facts stated in each of these applications. The case of the petitioners, that is, M/S Express Auto Service and Prayag Dutt Thakur (C. W. J. C. 284 and 326 of 1968) briefly stated is as follows: In the year 1954 the then Chief Commercial Superintendent, Eastern Railway, Calcutta, decided to open a Railway out-agency at Dumka to be served by the railway-stations at Rampur Hat and Baidyanath Dham. He for this purpose approached the State Transport Authority, State of Bihar to grant necessary permits to a suitable motor-operator to run the two Railway out-Agencies. A portion of the route Dumka Rampur Hat falls within the jurisdiction of the State of West Bengal, and therefore, it is an inter State route. By virtue of a resolution dated 4-5-1940 which is Annexure-1 to the petition in C. W. J. C. 326 of 1968 the State Transport Authority only had jurisdiction to grant permits in respect of all inter-State routes. It was desired by the then Chief Commercial Superintendent, Eastern Railways, that if it be possible then to save a lot of wasteful expenditure the same person may be selected for both the out-agency routes. The State Transport Authority of Bihar authorised the Regional Transport Authority, Bhagalpur, respondent No. 2 to grant necessary permit for Dumka-Rampur Hat out-agency and forwarded the applications received by it with necessary directions. Permit was granted to Ganga Motor Service who is respondent No. 4 in C. W. J. C. Nos. 284 and 326 of 1968. this was valid till 29-7-1960. This was renewed on 5-11-1960 and its validity was continued upto 28-7-1963. The Railway out-agency agreement which was executed between the President of India through the Chief Commercial Superintendent, Eastern Railways, Calcutta, on the one hand and M/S Ganga Motor Service, respondent No. 4 on the other hand expired on 15-4-1961 and was not renewed and the same was taken up by Bihar State Road Transport Corporation with effect from 16-4-1961. The Railway out-agency work, therefore, did not remain with the respondent No. 4 and he had thus no right to continue to run his buses but as he did not stop so the Bihar Road Transport Corporation moved respondent No. 2 to take necessary steps and this dispute became a subject matter of a Writ Petition in the High Court which was numbered as M. J. C. 630 of 1961 which was disposed of on 27-10-1961 whereupon a show cause notice was issued to respondent No. 4 by respondent No. 3, Respondent No. 3 by an order dated 17-3-1962 rejected the petition of the Bihar State Road Transport Corporation and then latter filed a petition of revision under Section 64A of the Motor Vehicles Act, before ;the State Transport Authority. On 18-8-1962 the State Transport Authority set aside the order of respondent No. 3 and cancelled the permit of respondent No. 4. According to the petitioners this order was passed in exercise of revisional jurisdiction and so it was not appealable. But respondent No. 4 filed an appeal before Shree Ghafoor, the then Deputy Minister of Transport who had been appointed as Appellate Tribunal under Rule 70 of the Bihar Motor Vehicles Rules, 1940. The aforesaid Appellate Tribunal entertained the appeal and stayed the operation of the order of the State Transport Authority passed on 18-8-1962. The hearing of the matter before the Deputy Minister was not taken up for a long time and in the meantime as the permit of respondent No. 4 was to expire by 28-7-1963 so respondent No. 4 filed an application for renewal which was published and objections were invited against the renewal. The petition M/S Prayag Dutt Thakur and other co-operators on this route such as, M/S Express Auto Service, M/S Dumka Transport Limited and the Bihar State Road Transport Corporation filed objections in the prescribed manner opposing grant of any further renewal. As the validity of the permit of which renewal was sought was in controversy before the Deputy Minister so respondent No. 2 granted temporary permit for four months to respondent No. 4. After a long time on 20-9-1963 and after the expiry of the period the Deputy Minister gave his judgment in the appeal and set aside the order of the State Transport Authority which was passed on 18-8-1962. The Bihar State Road Transport Corporation then moved the High Court against the order dated 20-9-1963 of the Deputy Minister by filing a Writ Petition which was numbered as M. J. C. 448 of 1967 and the High Court stayed the operation of the order of the Deputy Minister dated 20-9-1963. In the circumstances when the consideration of renewal application of respondent No. 4 was taken up by respondent on 22-2-1964, then the latter held that as the operation of the order of the Deputy Minister had been stayed by the High Court, so the order of the State Transport Authority dated 18-8-1962 allowing the permit to respondent No. 4 was the only subsisting order till the final decision of the High Court, and therefore, respondent No. 3 kept the matter of renewal pending. M. J. C. No. 488 of 1964 was finally disposed of by the High Court on 16-3-1966 and was dismissed as having become infructuous. But their Lordships specifically observed that the renewal application of respondent No. 4 would be considered by the authority without being influenced in any way by observations made by the learned Deputy Minister in his order dated 20-9-1963. The consideration of the application for renewal of respondent No. 4 which had been kept pending on 22-2-1964 was then taken up on 24-8-1966, that is, after an interval of more than 3 years of expiry of the permit which was sought to be renewed and then the petitioner and all other objectors appeared on the said date and placed the whole history of the case and contended that there was nothing to be renewed and as such respondent No. 3 had absolutely no jurisdiction to do anything. Respondent No. 3, however, decided in favour of the grant of renewal and allowed the renewal for a period of three years from the date of the order, that is, from 24-8-1966 when the permit which was thus ordered to be renewed had already expired on 28-7-1963. Prayag Dutt Thakur and one M/S Dumka Transport filed a joint appeal and a separate appeal was preferred by M/S Express Auto Service, At the time of hearing of the appeal on objection about the maintainability of the joint appeal was raised Dumka Transport withdrew from the appeal. Before the Appellate Authority, that is, respondent No. 3 this question was raised that there could not be any renewal of the permit because the contract of out-agency did not subsist and the period of permit had expired. The Appellate Authority set aside the order and then respondent No. 4 filed a petition before the Minister of State Incharge Transport under Section 64A of the Motor Vehicles Act. Respondent No. 4, as it appears also approached the said learned Minister to stay the operation of the order of respondent No. 3 who was pleased to pass an inter-locutory order. The revision petition filed by respondent No, 4 was heard by Sri T. P. Singh, Ex-Minister of Transport, Bihar, who allowed the appeal. The petitioners in C. W. J. C. Nos. 284 and 326 of 1968, therefore, for the reasons and circumstances stated in their petitions have prayed for the questions of the order of the Minister Sri T. P. Singh dated 8-3-1968.
4. In C. W. J. C. No. 284 of 1968 this point has also been taken that M/S Express Auto Service was not made a party in the revision filed before the Minister and so the order is liable to be set aside on this ground.
5. Ganga Motor Service, respondent No. 4 has filed counter-affidavits in both these Writ Applications and a separate Writ Petition has also been filed which has been numbered as C. W. J. C. 1108 of 1968. It is admitted by Ganga Motor Service both in his writ application as well as in the counter-affidavits that the permit was granted for the period upto July, 1960 but it has also been urged that Ganga Motor Service was granted a permanent State carriage permit for Dumka-Rampur Hat Railway out-agency. It was further stated that before the expiry of this period Ganga Motor Service had applied before the Eastern Bihar Regional Transport Authority for renewal of the said permit and the permit was renewed upto July, 1963. It has been stated on behalf of Ganga Motor that although the contract of out-agency had not been renewed with him yet he was entitled to renewal of permit as it was not only for out-agency and the Minister after a consideration of all the facts rightly set aside the order of the Appellate Authority.
6. At the time of hearing of these applications only five points have been pressed on behalf of the petitioners in C. W. J. C. Nos. 284 and 326 of 1968 and these are as follows:
(1) The Eastern Regional Transport Authority had no jurisdiction either to issue or renew the permit.
(2) The permit was a conditional one and when this vanished there could not be any renewal.
(3) The period of the permit had expired long before its renewal so there was nothing to renew.
(4) The order of the Appeal Board was final and no revision could lie against that order.
(5) the order of the Minister was liable to be set aside as M/S Express Auto Service was, not impleaded as a party and was not given a hearing.
7. I may take up the first point which has been raised on behalf of the petitioners, The permit which had been granted to Ganga Motor Service was in respect of Dumka-Rampur Hat route, A portion of this route falls within the territory of West Bengal and, therefore, this was an inter-State route. Section 44 of the Motor Vehicles Act lays down that 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 through-out such an area as may be specified, in. the notification in respect of each Regional Transport Authority, the power, functions conferred by plunder the chapter of such authorities. Clause (b) of Sub-section (3) of Section 44 lays down that the State Transport Authority may performs 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 these duties in respect of any route common to two or more regions. Under Rule 42 of the Motor Vehicles Rules framed under the Act read with the second schedule four Regional Authorities have been constituted. One of these is the East Bihar Regional Transport Authority with its head quarters at Bhagalpur. The route Dumka-Rampur Hat falls within this region except for that portion which falls within West Bengal. It has. therefore, been urged that the Regional Authority was Competent to issue permits i unless there be circumstances and directions as contemplated by Clause (b) of Sub-section 3 of Section 44 of the Act. It has been urged, on the other hand, that the State Transport Authority had taken over the function as early as in the year 1940 by virtue of a resolution dated 5-4-1940. A copy of that resolution is given in Annexure-1 to the petition in C. W. J. C. 326 of 1968 and it is as follows:
It was resolved that the Provincial Transport Authority should take over under Section 44(3)(b) the responsibility of granting permits for routes lying is the jurisdiction of more than one Regional Transport Authority and for routes lying in more than one Province.
Section 44(3)(b),. as already pointed above, lays down that the State Transport Authority may perform the duties in respect of any route common to two or more regions. Dumka-Rampur Hat route cannot be said to fall within two or more regions because according to Rule 42 and its schedule this route lies within one region only accept for that portion which falls in West Bengal. If the word 'region' is taken to mean as contemplated by Rule 42 of the Act then this aforesaid resolution was not in accordance with Section 44 because the resolution mentions "and for route lying in more than one Province". This could of course, be permissible if the word 'region' is given a wider meaning but it appears that the legislature did not intend to give such a wide meaning and the meaning and import of the word 'region' has to be taken as laid down in Rule 42 read with the second schedule. It has been stated on behalf of Ganga Motor in the counter-affidavit filed in C. W. J. C. 326 of 1968 that the resolution of 1940 was not produced before any Authority. The long and detailed orders passed by the Authorities also do not show that either this resolution was produced before them or any argument was advanced on the basis of the same. It has also been urged that there was a long standing practice of following this resolution and according to that the State Transport Authority had been granting such permits and that on the principle of communis error et facie just it was only the State Transport Authority which could grant such permits. But as pointed above nothing to prove this was produced before the Authorities. Apart from this in the writ petition it has been admitted that there was a delegation of function by the State Transport Authority to the Regional Transport Authority to grant permits (vide paragraph 2 of C. W. J. C. 284 of 1968). The entire text of the resolution passed by the State Transport Authority in . 1954 has been quoted in full in the order of the Appeal Board (Annexure-7) and the relevant portion is at page 46 of the paper book and it is as follows:
It was resolved that necessary action, as advised by Government, be taken and that the parties be in-formed that they should approach the E.B.R.T.A. for selection of a suitable contractor for the opening of the two out-agencies.
This aforesaid resolution shows that at least as far as this route is concerned the State Transport Authority had authorized the Regional Transport Authority to select and grant permit. The matter may also be examined from this point of view as to which of these Authorities under the Act had the jurisdiction to grant permits for inter Stale route.
8. Section 45 of the Act deals with applications for permits and under this section every application for a permit shall be made to the Regional Transport Authority of the region in which it is proposed to use the Vehicle or Vehicles. There are two provisos to this section and the first proviso lays down that if it is proposed to use the vehicle or vehicles in two or more regions lying within the same State the application shall be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies and in case the portion of the proposed route or area in each of the regions is approximately equal then to the Regional Transport Authority in which it is proposed to keep the vehicle or Vehicles. This proviso will not apply to the facts of this present case because as pointed above it is not a case where there are two regions as contemplated by Rule 42 of the Bihar Motor Vehicles Rules. The second proviso lays down that if it is proposed to use the vehicle or vehicles in two or more regions lying in different States the application shall be made to the Regional Transport Authority of that region in which the applicant resides or has his principal place of business. Under Section 45 of the Act the Regional Transport Authority is the competent authority to receive, entertain applications and grant permit for the same and naturally the authority which grants the permit will be the authority competent to grant renewal of the permits.
9. I may now take up the second and the third points and these may be discussed together as these two are co-related. The admitted position is that the permit which was granted for the route Dumka-Rampur Hat was valid upto 29-7-1960, It was renewed on 5-1-1960 and the Validity Continued upto 26-7-1963. During this 'period ultimately the con- tract between the Eastern Railway and Ganga Motor expired on 15-4-61 and this contract with the Railway was taken over from 16-4-1961 by the Bihar State Road Transport Corporation. The contention on behalf of the petitioners is that the permit was granted only for running the out-agency and as such it was a conditional permit and so when the contract between the Eastern Railway and Ganga Motor on its expiry was not renewed then the purpose for which the permit was granted disappeared. The Ganga Motor has challenged this contention (vide the counter-affidavit in C. W. J. C. 326 of 1968). It is stated therein that actual position was that a suitable party who was prepared to run the Railway out-agency between Dumka and Rampur Hat was to be selected for the grant of a permanent stage carnage permit for this route and the Regional Transport Authority after a consideration of the applications was of opinion that Ganga Motor was a suitable operator who on account of experience and recourses could run the out-agency as well as carry passengers other than railway passengers. It was also stated that after Ganga Motor ceased to be Railway out-agent the timings of the said carriage permit were changed by the authorities concerned. It has, therefore, been urged that the permit was not for out- agency only inasmuch as, the timings of the bus were allowed to be changed and was also allowed to pick up and carry passengers other than rail- way passengers. It is necessary in this connection to examine the relevant resolution and the Gazette notification by which the applications were invited to see how far the contention of the petitioners was correct. The original permit and the permit issued after renewal would have been the best pieces of evidence to show as to What were the terms and conditions of the permit but strangely enough these have not been filed by any of the parties. It may, however, be mentioned that it was urged on behalf of Ganga Motor that the permit was not here as it had been sent to West Bengal for counter signature.
10. Applications for this route for the first time had been invited by publication in the Bihar Gazette dated the 12th of August, 1953. This is Annexure-10 in C. W. J. C. No. 1108 of 1968. The learned Counsel appearing for the petitioners has strenuously argued that the contents and the recitals of this advertisement which was published in the Gazette show that the permit which was to be granted was for Dumka-Rampur Hat Raiway Out-agency. In the opening paragraph of the advertisement is of the advertisement it is mentioned that applications are invited for grant of permanent stage carriage and pub-lie carrier permits. The route mentioned there is Dumka-Rampur Hat Railway out-agency. It is also there mentioned-"the services and carriers are required for the operation of Dumka-Rampur Hat Railway out-agency". The subsequent paragraphs of the advertisement state as to what conditions are to be fulfilled and these are enumerated in Clauses (a) to (f). In all these clauses it is mentioned intending contractors:In Clause (c) it was specifically mentioned that they agree to abide by the terms and conditions for the Working of the outagency as are laid down in the conditions of the draft agreement to be signed with the Eastern Railway. The next document which may be seen in this connection is the resolution of the State Transport Authority. The entire text of the resolution has been quoted in the order of the Appeal Board, viz., Annexure-4 in C. W. C. No. 1108 of 1968. The concluding portion of the resolution dated the 9th of July, 1954 was to the effect that it was resolved that necessary action as advised by the Government be taken and that the parties be informed that they should approach E.B.I.T.A. for selection of a suitable contractor for the opening of the two out-agencies. According to respondent No. 4, Ganga Motor Service who is petitioner in C. W. J. C. 1108, this permit had not been granted only for the out-agency. The learned Minister Incharge Transport also considered this aspect of the matter and he was of opinion that resolution which had been passed shows that it was not the intention that the premit should be only for the out-agency, but the idea was that a suitable person may be selected who may be able to work the out-agency also. A plain reading of both the advertisement as well as the resolution does not show that there was any other underlying purpose. The sole and primary object was for the working of the Railway out-agency. One tiling, of course, may be said that in the advertisement and the resolution there was a mention of permanent stage carriage permit, and it has been argued that if the intention was for working the out-agency only, then the words contract carriage permit would have been used. There are two. other circumstances on which also reliance has been placed on behalf of respondent No. 4. These are firstly that the Government had also permitted that respondent No. 4 could carry passengers other than the railway passengers. I may refer in this connection to an extract of the proceeding of the E.B.R.T.A. dated 6-10-1956 which is Annexure-2 of C. W. J. C. 1108. It appears from this document that on 6-10-1956 after a consideration of the relevant letter, it was decided as follows:
Yah Nischai Kiya Gaya Ki Out-Agency Thikedar Gari Men Jagah Rahne Par Anye Yatrion Ko Le Sakte Hain.
This would mean that permission was accorded only to this extent that if there be room and accommodation available, then passengers other than railway passengers may be also carried. As a rule when any person is holding a carriage permit for the working of the out-agency then he has to carry only such passengers who are bona fide railway passengers from or to the railway head and he cannot be permitted to take and pick up passengers on the way. But here in this case certainly such a concession was allowed to Ganga Motor Service, In my opinion, this relaxation of concession by itself would not be sufficient to prove that the permit was not for the out-agency only because the advertisement and the resolution show otherwise. The other thing also on which reliance has been placed is the change in the timings of the running of the bus was also allowed, but I think that this also does not prove that it was an independent stage carriage permit not connected with the working of the out-agency. Ganga Motor Service applied for the renewal of the permit and Annexure-6 of C. W. J. C. 326 of 1968 is a copy of the application filed on 23-5-1963. In item No. 4 of the application the route, routes or area for which permit is desired have to be mentioned and in this column it was written as follows:
Dumka-Rampur Hat Railway Out-agency.
One may get the impression that the prayer was for the renewal in respect of both or alternatively for either of the two. But admittedly the out-agency contract with the Eastern Railway had expired on 15-4-1961 and it had not been renewed. It also appears that it was taken over by B.S.R.T.C. when the out-agency contract was not subsisting, there should not have been occasion of mentioning Railway Out-agency unless the applicant realised this that the two were so inter-connected that in applying for a renewal also both had to be mentioned. There is nothing in the application to show that there was an alternative prayer either for Dumka-Rampur Hat or for Railway out-agency, and there can be no room for such an argument when the condition precedent viz., the contract for out-agency did not subsist. Item No. 9 of the application is-
The standard rate of fare which it is proposed to charge is pies per passenger per mile.
The amount is not mentioned there and it has been urged that this item also shown that the rate was to be as would be fixed by the railway which is generally done in the case of out-agencies.
11. On a consideration of all these facts, I am of opinion that though the permit which was granted was stage carriage permit, but it was for the specific purpose that the person selected for this purpose should be a suitable person to run the Railway out-agency. The position would have been, of course, different if he had already a stage carriage permit and then over and above that he was also entrusted with the work of Railway out-agency. But here it appears that the initial and the original permit which was granted to him was because he was selected to work the Railway out-agency, and so the permit which was granted to him was so connected with the working of the Railway out-agency that it could not. be made separable and the dominant condition was the working of the Railway out-agency. In this view of the matter, there is a good deal of force in the contention that when the condition itself disappeared, then there could not have been any occasion for the renewal of the permit.
12. The next point which has been urged in this connection is that the period of the permit had already expired and so the question of its renewal did not arise. To appreciate the contention which have been raised in this respect, I think it seems necessary to state in brief the sequence of events and intervening factors during the relevant period in. question. As stated above, the original permit linked up with the Railway out-agency was granted to Ganga Motor Service (who hereinafter will be referred to as 'respondent No. 4') on 30-7-1956. This was for a period of three years and so it was to expire on 29-7-1960, Respondent No. 4 before the expiry of this period applied for renewal, and it was renewed on 5-11-1960. The result of this was that there was a renewal of the permit from 29-7-1960 to 28-7-1963. The Bihar State Road Transport Corporation (which hereinafter will be referred to for the sake of convenience as the 'Corporation') came into existence sometime in the year 1959 and an appeal was filed by the Corporation against this order of renewal, but this appeal was rejected on 28-1-1961. Now during the period of the renewal an important circumstance came into existence, viz., that on 15-4-1961 the contract of respondent No. 4 with the Railway with regard to the out-agency expired. On 16-4-1961 the Railway entered into the contract for the out-agency with the Corporation. This gave a further cause of action to the Corporation, and then it filed an application for the cancellation of the permit which had been granted to respondent No. 4. This application of the Corporation was rejected on 15-5-1961 on the ground that there was no provision for the cancellation of the permit except for the grounds; stated in Section 60 of the Motor Vehicles Act, and the prayer did not come within the purview of Section 60 of the Act. It may also be mentioned here that en 16-1-1961 the State Transport Authority had also granted an additional permit for Five Up and Five Down trips to Ganga Motor and an appeal against that order had also been filed by the Corporation. On 31-7-1961 the Corporation filed a writ petition in the High Court against the order dated 15-5-1961 rejecting the application for the cancellation of the permit. This writ petition was disposed of by the High Court on 27-10-1961 with the direction therein that E.B.R.T.A. be directed to consider and dispose of the application for cancellation. After this the matter was considered by the E.B.R.T.A. who rejected the application for cancellation of permit on 17-3-1962. The Corporation then preferred an appeal against this and the Appeal Board set aside the order of the E.B.R.T.A. Respondent No. 4 then preferred an appeal to the Deputy Minister of Transport, who set aside the order of the Appeal Board and upheld the order of E.B.R.T.A. on 29-3-1963. The Corporation then filed another writ petition in the High Court which was directed against the aforesaid order of the Deputy Minister. By this time the period of renewal was also to expire as its date of expiry was 28-7-1963, as pointed above. So another petition for renewal was also filed in time. Pending the renewal matter temporary permit for four months and then again for two months was given to respondent No. 4. The High Court on the filing of the writ petition, mentioned above, had stayed the operation of the order of the Deputy Minister and consequently the application for renewal remained pending as it could not be disposed of in the circumstances, stated above. The second writ application filed in the High Court was disposed of on 16-3-1966, and the concluding portion of the order of the High Court is as follows:
The question of renewal of the permit is now under consideration before the proper authority, before whom the parties concerned will have full opportunity to urge the respective claims. We are sure that the said authority will consider the question of renewal afresh without being influenced any way by the observation made by the learned Deputy Minister in his order dated 20-9-1968.
Mr. Lal Narain Sinha for the petitioner thereupon stated that in view of what has been stated above, this petition would not be pressed. It is therefore dismissed as infructuous subject to the aforesaid observations. No costs.
13. After this another import ant event took place and it was this that on 10-5-66 the Corporation sen a letter No, 4516 to the Bihar State Transport Authority surrendering their permit for the inter-State route in question because it was running at loss and the State Transport Authority at their meeting held on the 11th of October, 1966 resolved to accept the surrender of the permit of the Corporation. (These details are mentioned in order of the learned Minister of Transport). The Corporation having gone out of the picture, E.B.R.T.A. renewed the permit of respondent No. 4 on 24-8-1966 for three years. This would be expiring in August, 1969. It also appears from the order of the learned Minister that at the time when the E.B.R.T.A. granted the application for renewal also stated that the Corporation had no objection The renewed permit was actually issued on 5-12-1966, and thereafter it was sent to Bengal for counter-signature as required by law. After this another objector comes prominently in the field raising objections to the renewal of the permit. Prayag Dutt who is the petitioner in C. W. J. C. 326 of 1968 filed an appeal against the order of renewal of the permit and he also obtained stay order. On 12-12-1966 the Minister Incharge Transport on being moved by respondent No. 4 stayed the operation of the order of stay passed by the Appeal Board, mentioned above. The result of this was that the order of the E.B.R.T.A. granting the renewal case into full force and operation. The Appeal Board on hearing the appeal allowed the appeal on 23-1-1967 and set aside the order of renewal passed by the E.B.R.T.A. Respondent No. 4 preferred an appeal to the Minister of Transport and he passed the order in his favour.
14. The Writ Petitions, C. W. J. C. Nos. 326 and 284 are directed against this order of the Minister passed in revision.
15. These facts which I have stated above will clearly show that the main objector and one who. was really vitally affected was the Corporation, but the Corporation went out of the picture in 1966, as mentioned above. This fact also does not seem to be disputed that before the expiry of each period of the permits, the respondent No. 4 filed petitions in, time for renewal. The delays in the actual orders of renewal were partly due to the delays taken by the authorities concerned in passing orders and partly due to the other factors, such as, the stay etc. which I have mentioned above. I may now in this connection refer to the provisions of Section 58 of the Motor Vehicles Act which are as follows:
58. Duration and renewal of permits-(1)(a) A stage carriage permit or a contract carriage permit other than a temporary permit issued under Section 62 shall be effective without renewal for such period, not less than three years and not more than five years, as the Regional Transport Authority may specify in the permit.
(b) A private carrier's permit of a public carrier's permit other than a temporary permit issued under Section 62 shall be effective without renewal for a period of five years.
(2) A permit may be renewed on an application for a permit;
Provided that the application for the renewal of a permit shall be made,-
(a) in the case of a stage carriage permit or a public carrier's permit, not less than sixty days before the date of its expiry; and
(b) in any other case, not less than thirty days before the date of its expiry;
Provided further that, other conditions being equal, an application for renewal shall be given preference over new application for permits.
(3) Notwithstanding anything contained in the first proviso to Sub-section (2), the Regional Transport Authority may entertain an application for the renewal of a permit after the last date specified in the said proviso for the making of such an application, if the application is made not more than fifteen days after the said last date and is accompanied by the prescribed fee.
Sub-section (2) clearly lays down that a permit may be renewed on an application made and disposed of as if it were an application for a permit. This means that an application for renewal of a permit has to be treated just like as if it were an application for the issue of a permit. There are two provisos to the section and in proviso (a) and (b) time limits have been prescribed within which the application for renewal should be filed. I may also refer here in this connection to Rule 59 of the Bihar Motor Vehicles Rules which also prescribes the procedure, form of application, fee etc. for the filing of an application for renewal. The second proviso is also important which lays down that other conditions being equal, an application for renewal shall be given preference over new applications for permits. This means that while dealing with the applications for the renewal of permits although the application has to be treated as one as if it were for a permit, but a preference has to be given to the person applying for a renewal provided of course other conditions are being equal. This appears to be a very reasonable provision because naturally a person who had already a permit and applies for the renewal should be given a preference unless the other conditions are not equal. The section does not state as to what will happen if there is a delay in the passing of the order of renewal. I may in this connection refer to a decision in the case of the Samarth Transport Co. (P) Ltd. v. The Regional Transport Authority, Nagpur and Ors. . In that case also there were delays in passing the order on the application for renewal. It was held that the Motor Vehicles Act does not prescribe any time limit for the disposal of an application for renewal of permits and it cannot be said that the Regional Transport Authority acted without jurisdiction in rejecting the applications in those cases even though months has elapsed after the permits had expired and further that even so, the relevant provisions of the Act indicate that an application for renewal of a permit has to be disposed of ordinarily before the expiry of the permit or within a reasonable time thereafter. It was also further held that it was open to the petitioner, if it was aggrieved by the delay, to ask for a mandamus directing the Authority to dispose of its application within a reasonable time. Respondent No. 4, therefore, could not be responsible for the delays and as far as he was concerned, he had filed the applications for renewal in time, that is, within the prescribed period as laid down by Section 58 of the Motor Vehicles Act. In this view of the matter, by legal fiction it would be deemed that as the final order, that is, of the Minister was in favour of the petitioner, there was a renewal without any break from the date of its first expiry, that is, on 28-7-1963. The main contention on behalf of the petitioner has been that as the period had already expired so there was nothing to be renewed, but this contention, in my opinion, for the reasons stated above, does not seem to be correct.
16. The fourth point which has been urged is that the order of the Appeal Board was final and no revision could lie against that order. This means that the order of the Minister against which the petitioners have filed the writ petitions was without jurisdiction. The order of the Minister clearly shows that respondent No. 4 filed the revision under Section 64(A) of the Bihar Motor Vehicles Act (Bihar Amendment). Section 64A of the Act deals with revision and there was a Bihar Amendment of this section in the year 1949. There was again an amendment in 1953. Section 64A as amended by the Bihar Amendment Act of 1953 stands as follows:
The State Government may, on application made to it in this behalf, within thirty days of the passing of the order in the course of any proceedings taken under this Chapter by any authority or officer, call for the records of such proceeding, and after examining such records pass such order as it thinks fit.
This clearly shows that there is a power of revision with the State Govt. and the Minister as such had the power of passing an order under Section 64A as amended by the Bihar Amendment Act, I may also refer here to a decision of this Court in Gobardhan Joshi and Ors. v. The State of Bihar and Ors. 1956 B.L.J.R. 498 where the vires of Section 64A of the Bihar Amendment was challenged and it was held that it cannot be said that Section 64A creates an unreasonable restriction and, therefore, it is not constitutionally void or ultra vires. This point is, therefore, also thus decided.
17. The last point which has been contended is that the order of the Minister was liable to be set aside as M/S Auto Express was not impleaded as a party and was not given a hearing. It may be mentioned here again that this point arises only in C. W. J. C. 284 of 1968 filed by M/S Express Auto Service (P) Ltd. Annexure-7 of C. W. J. C. 326 of 1968 shows that two appeals had been preferred before the Appeal Board, one of these was Appeal Case No. A3-2046/66 and the other was A3-2049/66 and it also appears from page 51 of Annexure-7 of C. W. J. C. 326 that A3-2049/66 was the appeal filed by M/S Express Auto Service Private Ltd. on a perusal of the order of the Appeal Board (Annexure-7) it appears that A3-2046/66 had been filed jointly by Prayag Dutt Thakur and one Duraka transport. This was an irregularity and so at the time of hearing Dumka Transport withdrew from the appeal. In the order of the Appeal Board there is no mention of Express Auto Service with the result that in the revision Express Auto was not impleaded as a party. It has been urged on behalf of respondent No. 4 that in the appeal all the submissions which could have been made were placed before the Appeal Board on behalf of Prayag Dutt Thakur and the matter was also given a hearing in the revision before the Minister so no prejudice was caused to Express Auto Service. There is no getting away from this position that Express Auto was not impleaded in the revision and so consequently was denied the opportunity of being heard. The second proviso of Section 64A lays down as follows:
Provided further that the State Transport Authority shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard.
There was thus a clear contravention of the aforesaid provision.
18. Now considering all the facts and the circumstances, the position is that although the grant of the permit was for the purpose of the running of the out-agency as held by me above, but somehow or other the authorities were under the impression and they also acted up on the same that it was not exclusively for that purpose so much so that renewals were allowed from time to time. The main objector was the Corporation who went out of the picture and till that stage these two petitioners, that is, of C.W. J. C. Nos. 326 and 284 of 1968 had not raised any objection. They come into the picture only after the Corporation withdrews from the scene. The Corporation got the contract from the Railway in the year 1961, so the Corporation was really the person who was directly and vitally affected. At the time of hearing a certified copy of the Resolution of the State Transport Authority dated the 31st January and the 1st February, 1969 has been filed which show? that the permit of Express Auto Service for this route has been renewed for three years. There has been no infringement of any fundamental right of the petitioners and they could be affected only to this extent that by the renewals of permit of respondent No. 4 he was also allowed to continue the running of the Buses on this route. The renewed permit of respondent No. 4 is also to expire in August this year and as stated at the Bar at the time of hearing no further application for renewal of permit has so far been filed. The orders allowing renewals were also not bad, as discussed above, only on account of the fact that the period had expired.
19. The grant of a writ of certiorari is a discretionery and equitable relief and considering all the facts and circumstances discussed above, it does not appear to be either expedient or proper to quash the order of the Transport Minister. The writ petitions in C. W. J. C. Nos. 294 and 326 of 1968 are dismissed and consequently no relief need be given in C. W. J. C. No. 1108 of 1968 and that is also dismissed. No cost is allowed in any of these cases.
S.C. Misra, C.J.
20. I agree to the order proposed.