Patna High Court
Basudeo Tiwary vs Shree Bagun Sumbrui And Ors. on 2 September, 1970
Equivalent citations: AIR1971PAT201, AIR 1971 PATNA 201
JUDGMENT U.N. Sinha, J.
1. The petitioner has filed an application under Article 226 of the Constitution of India, praying that the order incorporated in annexure 3/a be quashed by a writ of certiorari. This order had been passed by the Minister of Transport, Bihar on the 14th May, 1970, acting under Section 64-A of the Motor Vehicles Act (Bihar Amendment).
2. The relevant facts stated in the application are as follows: The petitioner holds a stage carriage permit for the route Arrah-Buxar, valid up to the 31st May, 1971. Respondent No. 2 to the writ application is said to have a stage carriage permit for the route Piro-Behea, and during the currency of his permit, he applied for extension of the route from Behea to Buxar. It is said that the route Piro-Behea is of 18 miles and the extension prayed from Behea to Buxar was for an extra 32 miles. It is stated that the petitioner and others, who were going to be affected by the extension prayed for, filed objections and on hearing the parties, the extension prayed for was refused by the South Bihar Regional Transport Authority. Patna, on the 15th September, 1969. A copy of this order has been incorporated as annexure 1. Respondent No. 2, thereafter, moved the State Transport Authority, and ultimately, an order adverse to respondent No. 2 was passed a copy of which has been incorporated in Annexure 2. Thereafter, respondent No. 2 filed an application under Section 64-A of the Act, and on a consideration of the matter, the impugned order was passed by the Minister of Transport, granting the extension prayed for. The Minister of Transport has held that need of the public requires this extension, so that a direct link from Piro to Buxar will be established, as had been recommended by the District Magistrate of Shahabad. The view of the Minister of Transport appears to have been that there was heavy passenger traffic on this route between Behea and Buxar and the existing buses go overcrowded and, therefore, to relieve the traffic congestion, this extension ought to be granted to the present respondent No. 2.
3. The main point argued by learned counsel for the petitioner challenging the very jurisdiction of the Minister of Transport to pass the order in question is based on Section 48(3) (xxi) of the Motor Vehicles Act. It is contended that power to grant extension of an existing permit is limited to 24 kilometres only, as mentioned in the proviso under Clause (xxi) of Section 48(3) of the Act, in order to appreciate the contention raised in this case, Section 48(3) (xxi) of the Motor Vehicles Act is quoted below.
Section 48(3)-- "The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a service of stage carriages of a specified description or for one or more particular stage carriages and may subject to any rules that may be made under this Act attach to the permit any or more of the following conditions, namely:--
(xxi) that the Regional Transport Authority may, after giving notice of not less than one month,--
(a) vary the conditions of the permit;
(b) attach to the permit further conditions:
Provided that the conditions specified in pursuance of Clause (1) shall not be varied so as to alter the distance covered by the original route by more than 24 kilometres, and any variation within such limits shall be made only after the Regional Transport Authority is satisfied that such variation will serve the public convenience and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof;"
According to learned counsel for the petitioner, therefore, the Minister of Transport acted beyond the permissible limit mentioned in the proviso, quoted above, by granting an extension of 32 miles over and above the original route from Piro to Behea, which covered 18 miles. According to learned counsel for respondent No 2, this provision of law is not attracted at all on the facts and in the circumstances of the case, inasmuch as the condition mentioned in Clause (xxi) of Sub-section (3) of Section 48 was not attached to the permit of this respondent, which is current. For this purpose, the original permit of respondent No, 2 has been brought and has been shown to the court. On hearing the learned counsel for the parties. I am of the view that the arguments raised on behalf of the petitioner are not valid, based as they are on the proviso quoted above. The proviso under consideration had been brought in force by Central Act No. 56 of 1969 on the 2nd March, 1970 and Clause (i) had also come into operation by that amendment. This clause reads as follows:
"(i) that the vehicle or vehicles shall be used only in a specified area, or on a specified route or routes;"
It appears that the proviso to Clause (xxi) was incorporated because of the provision of Clause (i). In the instant case under consideration, the permit to respondent No. 2 had been granted before 1970 and, therefore, no occasion had arisen to attach to that permit any condition envisaged by Clause (i) of Sub-section (3) of Section 48 and in fact, no condition envisaged by this clause was attached, as is clear from the permit. Therefore, in the instant case, the proviso to Clause (xxi) is also not attracted. The question that now arises is as to the validity or otherwise of the extension granted from Behea to Buxar, apart from the consideration of the proviso to Clause (xxi). According to learned counsel for the petitioner, if Clause (i) of Section 48(3) and Clause (xxi) of the same sub-section are not relevant, then there was no question of any extension of the current permit from Behea to Buxar. According to the learned counsel, the question of exercise of power to extend a particular route can only arise if a condition as to the route has been incorporated in the permit and not otherwise. In my opinion, this contention is also not borne out by law. Under Rule 68 of the Bihar Motor Vehicles Rules, upon an application made by the holder of a permit the Regional Transport Authority may, at any time, in its discretion, vary the permit, subject to the provisions of the sub-rules under that Rule. Rule 68 of the Bihar Motor Vehicles Rules reads thus:--
"68. Permit--variation of-- (a) upon application made in writing by the holder of any permit, the Regional Transport Authority may at any time, in its discretion, vary the permit or any of the conditions thereof subject to the provisions of the following sub-rules.
(b) where a representation has been made by any person in connection with the grant of a stage carriage permit or a public carrier's permit under Sub-section (1) of Section 47 or Section 55 of the Act, the Regional Transport Authority shall not, subsequent to the issue of the permit, vary the permit or any condition thereof in a manner prejudicial to any person by whom such representation has been made, unless the said authority has afforded such person a reasonable opportunity of making a representation in respect of the proposed variation of the permit or any condition thereof.
(c) Notwithstanding the provisions of Sub-rule (b) a Regional Transport Authority may vary any stage carriage permit or any public carrier's permit without affording any person an opportunity of making a representation if, in the opinion of the Regional Transport Authority, the presentation made by such person in respect of the issue of or of the renewal of the permit was frivolous or vexatious or if the variation of the permit or any condition thereof is in accordance with any particular or general direction issued by the State Transport Authority under Sub-section (4) of Section 44 of the Act or involve a question of principle which has already been decided by a ruling of the Regional Transport Authority or of the State Transport Authority which has not been modified upon appeal." In the instant case we are not concerned with the varying of any of the conditions of the permit envisaged in Rule 68(a) for the reasons already given and we are concerned only with the question of the power of the Regional Transport Authority in varying a permit. It is clear from Rule 68 that the Regional Transport Authority has power to vary the particular permit of respondent No. 2 from Piro to Behea and make it a permit from Piro to Buxar. If the Regional Transport Authority had this power, the authorities to whom the Regional Transport Authority was subordinate had also co-extensive power, and in this case, the Minister of Transport purporting to act under Section 64-A of the Act has exercised his power in varying the permit by adding the route from Behea to Buxar. Learned counsel for respondent No. 2 has referred to a decision of their Lordships of the Supreme Court in the case of Sri Ram Vilas Service Ltd. v. Raman & Raman Private Ltd., reported in AIR 1968 SC 748.
In my opinion, the arguments of the learned counsel for respondent No. 2 based on the case of Sri Ram Vilas Service Ltd., are sound and they must be accepted. Their Lordships of the Supreme Court were dealing with the Motor Vehicles Act, 1939 as amended by Madras Act 111 of 1964 and under Sub-section (3) of Section 48, as amended, the Regional Transport Authority could attach to a permit any one or more of the conditions mentioned thereafter. Under Clause (xxi) of Sub-section (3) of Section 48 of that Act the Regional Transport Authority could make certain variations mentioned therein, one of which was extension of the distance by not more than 24 kilometres. The relevant provisions of Section 48 of the Act, as amended in Madras, have been quoted by their Lordships of the Supreme Court and so they are not quoted by me here. Their Lordships having looked into the permit in question in that case, came to the conclusion that condition No. (xxi) of that sub-section was not attached to that permit. On such conclusion their Lordships stated thus:--
"It seems to us that the High Court erred in holding that Section 48(3) (xxi) of the Act as amended by itself gave power to the Regional Transport Authority to vary the route within certain limits. This power, in our view, would be exercisable only if a condition to that effect is put in the permit. In the case of the appellant we saw the permit and what it contained was a condition similar to the condition mentioned in Section 48 (3) (xxi) before its amendment by Act 111 of 1964. Therefore, for the purpose of this appeal we must treat Section 48(3) (xxi) as amended as non-existent. If Section 48(3) (xxi) as amended, is treated as non-existent, then there can be no difficulty in coming to the conclusion that no limitation had been placed on the powers of the Regional Transport Authority in respect of the grant of applications for variations of the route. The order of the Regional Transport Authority cannot therefore, be challenged as being beyond its jurisdiction.
Another question that was debated before us was whether Rule 208 of the Madras Motor Vehicles Rules extracted above, confers powers on a Transport Authority to vary permits or whether it is merely a procedural rule. It seems to us that as the Act stands at present. Rule 208 does not confer power on a transport authority to vary all kinds of permits or conditions attached therein. This power is exercised on an application made in writing by the holder of any permit."
The conclusions of their Lordships of the Supreme Court apply in equal force to the instant case, as the amendment in Section 48(3) by incorporating Clauses (i) and (xxi) came into existence long after the current permit had been granted to respondent No. 2 and at that time there was no question of attaching any condition envisaged under Clause (i). Rule 68 of the Motor Vehicles Rules is in terms of Rule 208 of the Madras Motor Vehicles Rules, which Rule has also been quoted by their Lordships. Identical words occur in Rule 208(a) of the Madras Motor Vehicles Rules under which a Transport Authority can vary a permit or any of the conditions thereof subject to the provisions of Sub-rule (b). Therefore, if the permit has been varied in the instant case under the power granted under Rule 68 of the Bihar Motor Vehicles Rules, no illegality has been committed by the Minister of Transport. Learned counsel for the petitioner has relied upon the case of S.V. Natesa Mudaliar v. Sri Dhan pal Bus Service Private Ltd., reported in AIR 1964 Mad 136 (FB) and has referred to the majority view that route in regard to a stage carriage permit is not a condition of permit. In my opinion, that question does not arise in the instant case, as we are not concerned with any action taken under the proviso to Clause (xxi) of Section 48(3) of the Act, after Clause (i) thereof had come into existence. The order of the Minister of Transport does not amount to an alteration of the condition of a permit within the meaning of the proviso as it now exists and it is clear that he had exercised his power falling within Rule 68 of the Bihar Motor Vehicles Rules. Learned counsel for the petitioner has also referred to the case of Ishverlal Thakorelal v. Motibhai Nagji-bhai, reported in AIR 1966 SC 459 and has drawn our attention to what their Lordships of the Supreme Court have stated about the function of a proviso. For the reasons already given above, it is not necessary to deal with this matter any further, as no question of interpretation of the proviso to Clause (xxi) of Section 48(3) arises.
4. In my opinion, no infirmity has been shown for quashing the order incorporated in annexure 3/a of the writ application. The application must fail and It is dismissed. In the circumstances of the case, there will be no order for costs.
S. Sarwar Ali, J.
5. I agree.