Patna High Court
Gobardhan Joshi And Anr. vs The State Of Bihar And Ors. on 18 March, 1955
Equivalent citations: AIR1957PAT340, AIR 1957 PATNA 340
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Ahmad, J.
1. These two applications, bearing Nos. M. J. C. 4 of 1955 and M. J. C. No. 129 of 1954, have been heard together as the order challenged under them have been passed under a common provision of law, namely, Section 64-A of the Motor Vehicles Act, 1939, and they raise some common questions of law, the important one of them being that Section 64-A itself is constitutionally void and ultra vires.
2. Both these applications have been moved under Article 226 of the Constitution of India and the common prayer made in them is for the issue of an oppropriate direction in the nature of writ restraining the respondents from enforcing the orders which have been challenged thereunder.
3. In M. J. G 4 of 1955 the petitioner is one Gobardhan Joshi, and it is stated that he carries on business in motor transport. The facts giving rise to his application are as follows. It appears that on 21st January, 1953, the East Bihar Regional Transport Authority, Bhagalpur (respondent No. 3), advertised a vacancy for a stage carriage permit on the Godda Pakur Road under Section 57 of the Motor Vehicles Act 1939 read with R. 46 of the Motor Vehicles Rules (Bihar) 1946. In pursuance of that advertisement, the petitioner and respondent No. 4 Abdul Majid Khan along with a number of other persons filed applications for the same.
On a consideration of these applications, in accordance with Rule 47 of the said Motor Vehicles Rules, the East Bihar Regional Transport Authority granted the permit to respondent No. 4 on 28th of September, 1953. Dissatisfied with that order, the petitioner filed an appeal against it under Section 64 of the Motor Vehicles Act 1939 to the State Transport Authority (appellate jurisdiction) Bihar. This appeal was allowed by the order dated 5th December 1953 with the result that the said permit was granted to the petitioner.
The permit shows that it was made valid for three years subject to its renewal on the expiry of every four months. On the strength of this permit the petitioner, it is stated, has been plying the stage carriage on the said route since then. In the mean time, respondent No, 4 moved the State Government on 8th December, 1953, against the order dated 5th December, 1953, passed by the appellate authority. That was disposed of by the State Government on 30th December 1954 by the order which, runs as follows :
"After careful consideration of all the circumstances, the State Government are of the opinion that the ends of justice and equity will be met if Shree Abdul Majid is given a temporary permit for four months, subject to periodical renewals, on the Godda-Pakur Route. The East Bihar Regional Transport Authority may be directed to take action accordingly.
Sd. N.K. Prasad., Under Secretary to Government."
The petitioner, it is stated, got information of the application moved by respondent No. 4 under Section 64-A of the Motor Vehicles Act and of the order passed there on 30th December 1954 and on that information he filed the present application under Article 226 of the Constitution on 6th January 1955 for the quashing of that order "by a writ in the nature of certiorari or any other appropriate writ or order.
4. The petitioner in case No. 129 of 1954 is Kedar Nath Lath, who has been, it is said plying stage carriage service since 9th September 1953. It is stated by him that the Regional Transport Authority, Muzaffarpur, invited applications for stage carriage permit for the route from Muzaffarpur to Sursand via Pupri. In pursuance of that notification, the petitioner and respondent Nos. 4 and 5 along with many others filed applications for the said permit. The Regional Transport Authority, Muzaffarpur, on a consideration of these applications ultimately granted permit on 9th October, 1953, to Rajani Kant Thakur (respondent No. 4). Against that order, it appears, the petitioner and also Kailash Prasad Singh (respondent No. 5) filed appeals under Section 64 of the Motor Vehicles Act 1939 before the State Transport Authority, Patna. The appeal of the petitioner was allowed while that of Kailash Prasad Singh was dismissed by the order dated 6th September 1953 and the order of the Regional Transport Authority, Muzaffarpur, was set aside. The relevant portion of that order is:
"In our opinion, both the appellants have a better claim than the respondent. As to the comparative merits of the claim of the two appellants, there appears to be nothing against either of them. Appellant Kailash Pd. Singh has, however, got a permanent permit for 52 miles and a temporary permit for 32 miles while appellant Kedar Nath Lath has none. We, therefore, allow the appeal of Kedar Nath Lath and set aside the order of the R. T. A. The appeal of Shri K, P. Singh is rejected."
On the basis of this order the Regional Transport Authority issued permit to the petitioner on 9th Septemebr 1953 and it is claimed that the petitioner has been plying his stage carriage accordingly since then. In the meantime, Rajani Kant Thakur (respondent No. 4) moved the State Government under Section 64-A of the Motor Vehicles Act. The State Government on a consideration of that application set aside the order passed by the appellate authority on 6th September 1953 and communicated its decision to that effect to the Chairman, State Transport Authority, Bihar. The relevant portion of that letter reads:
"I am directed to refer to the orders passed by the appeal Board of the State Transport Authority, Bihar, in the Appeal Case No. PI-7092/53 filed by Sri Kedar Nath Lath of Sursand and to say that the State Government have been pleased to set aside the same on representation made to them under Section 64-A of the M. V. Act and to allow the representation. The reports, of the local officers do not make out any prima facie case against the petitioner, and there is nothing on record to show that he was guilty of any such offence as would justify the punishment! awarded to him."
5. The petitioner Kedar Nath Lath has now come to this Court against this order under Article 228 of the Constitution for the issue of a writ in the nature of mandamus or any appropriate direction restraining the respondents from taking any action against the petitioner on the basis of the aforesaid order passed by the State Government under Section 64-A of the Motor Vehicles Act.
6. M. J. C. 4 of 1955 has been argued on behalf of the petitioner Gobardhan Joshi by Mr. B. C. Ghosh while the other, M. J. C. 129 of 1954, by Mr. N. L. Untwalia. The common point raised in both the applications are two, namely, (1) that Section 64-A inserted into the Motor Vehicles Act 1939 by Section 13 of Bihar Act 27 of 1950 ((The Motor Vehicles) Bihar Amendment Act 1949) is constitutionally void and ultra vires and (2) that the orders passed by the State Government under Section 64-A of the Motor Vehicles Act are illegal and void as they were passed at the back of the petitioners and no notices of the proceeding, whereunder those orders were passed, were given to them.
7. Besides these two common points, Mr. Ghosh in support of his client further raised the contentions (1) that the order dated 30th December, 1954, is illegal as the same was passed beyond the period of limitation provided in Section 64-A of the Motor Vehicles Act and (2) that the State Government in the course of the proceeding taken by the respondent Abdul Majid Khan under Section 64-A of the Motor Vehicles Act did not confine themselves to the questions brought before them in appeal but travelled outside them.
8. While Mr. N. L. Untwalia appearing for his client further contended that the power laid down under Section 64-A of the Motor Vehicles Act is an appellate power and not revisional power. In the initial stage he also pointed out that he would raise the contention that the order in controversy is mala fide as it does not disclose any reason but subsequently he decided not to press that point and I think rightly.
9. I now propose to take up the two common points first in the order in which they have been stated above. The line of attack by Mr. Ghosh against the validity of Section 64-A is that the law laid down in that section is not reasonable from procedural aspect and it does not provide either for the issue of notice or for an opportunity to be given for hearing to all the parties concerned in the case and as such Section 64-A of the Motor Vehicles Act is void and illegal. On this point the contention of . Mr. Untwalia is slightly different. He has assailed Section 64-A on two different grounds. His first contention is that the power given under it is not at all quasi-judicial or judicial. On the contrary, it is a power given to an authority which is out and out an executive body. That, in substance, according to him, amounts to a naked power given to the executive to impose restriction as they like according to their whims on the right of freedom of trade granted to every citizen under Article 19 (1) (g) of the Constitution and as such the entire section is hit by that article and is not protected by the saving provision of Article 19 (6) of the Constitution. In the alternative, he has also contended that even if it be assumed that the power given under that section is a judicial or a quasi judicial one, that has not been defined or limited with the result that it can be exercised arbitrarily. These two points raised by Mr. Untwalia in ultimate analysis, in my opinion, boils down to the common larger question, namely, that the restrictions imposed under Section 64-A of the Motor Vehicles Act against the exercise of the fundamental right granted to every citizen under Article 19 (1) (g) are not reasonable as contemplated by Article 19 (6) of the Constitution. Thus, it comes to this that the attack by Mr. Ghosh is from the procedural point of view while the attack by Mr, Untwalia is from the substantive point of view.
10. I do not think that it makes any difference whether the power is given to an executive body or to a judicial body. In fact, in matters like these, which are mostly concerned with the administration of the State, the powers are usually given to the members or body of the executive department and very rarely to the members of the judiciary. The true question, therefore, is not as to whom the power has been given but the question is as to whether the power given has in it a judicial or a quasi judicial character both from the substantive and procedural points of view. In any case, the power of granting or withholding licences would necessarily have to be vested in certain public officers or bodies and they would certainly have to be left with some amount of discretion in those matters. Mischief arises only, as laid down in Dwarka Prasad v. State of U. P., AIR 1954 SC 224 (A), "when the power conferred on such officers is an arbitrary power unregulated by any rule or principle and it is left entirely to the discretion of particular persons to do any thing they like without any check or control by any higher authority. A law or order, which conlers arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business in normally available commodities cannot but be held to be unreasonable."
And legislation ''which arbitrarily or excessively invades the right, cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance between the freedom guaranteed under Article 19 (1) (g) and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in reasonableness."
It is, therefore, in the light of these principles that it has to be seen as to whether the power given to the State Government under Section 64-A of the Motor Vehicles Act is arbitrary or reasonable and not from the point of view as to whether the person or the body to whom the power has been given is an executive body or a judicial or a quasi judicial body. In other words, what has to be scrutinised is as to whether the power given under Section 64-A of the Motor Vehicles Act has got in it a character of reasonableness or not. In case it is found that the power is of reasonable character and that it is not unregulated, rather it is regulated by rules and principles, then that power has to be held protected under Article 19 (6) of the Constitution. What sometimes happens in the practical spheres of life is as stated by Mr. Justice Matthews in the well-known American case of Yick Wo v. Hopkins, (1886) 118 US 356 at p. 373 (B):
"that the action or non-action of officers placed in such position may proceed from enmity or prejudice, from partisan zeal or animosity, from favouritism and other improper influences and motives which are easy of concealment and difficult to be detected and exposed, and consequently tile injustice capable of being wrought under cover of such unrestricted power becomes apparent to every man, without the necessity of detailed investigation,"
It is to avoid mischiefs like these that the power has to be regluated and controlled lest it" may not operate and act arbitrarily. The phrase ''reasonable restriction", as defined in Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 (G), "connotes that the limitation imposed upon a person in enjoyment of a right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public,"
In the case of Nakkuda Ali v, M. F. DE S. Jaya-ratne, 1951 AC 66 (D), it was observed:
"Restriction should not be based on a discretion which is completely subjective. If the discretion is based on a consideration, which is capable of an objective test, it is not either arbitrary or subjective."
Judged, therefore, from these standards as well it has to be seen as to whether the power given under Section 64-A of the Motor Vehicles Act is one which is arbitrary and unregulated and the discretion given to the authority under it is completely subjective. In judging this, the entire scheme of the Act has to be kept in view. Chapter IV of the Act deals with control of transport vehicles. It has in it various sections beginning from Section 42 to Section 68. Section 42 lays down the necessity for permits. Section 43 gives power to the State Government to control road transport. Section 44 speaks about the transport Authorities. Section 45 lays down the procedure for application for permits and Section 46 deals especially with the application for stage carriage permit. In Section 47 are laid down matters which the Regional Transport Authority has to keep in view in deciding whether to grant or refuse the stage carriage permit. Section 57 lays down the procedure to be followed in applying for and granting permits. Clause (5) of the section says:
"When any representation such as is referred to in Sub-section (3) is made, the Regional Transport Authority shall dispose of the application at a public hearing at which "the applicant and the person making the representation shall have an opportunity of being heard either in person or by a duly authorised representative."
And Clause (7) of the section provides that ''when a Regional Transport Authority refused an application for a permit of any kind, it shall give to the applicant in writing its reasons for the refusal."
Section 64 provides an appeal against this order. Under the Central Act, that is, Act IV of 1939, the appellate authority under Section 64 was the authority which was to have the last say in the matter. Thereafter the Provincial Legislature of the State of Bihar by Bihar Act 27 of 1950 inserted in the Motor Vehicles Act Section 64-A after Section 64 of the Act. Section 64-A reads :
"The State Government may, on application made to it in this behalf, within thirty days if the passing of the order in the course of any proceedings taken under this Chapter by any authority 01 officer subordinate to it, call for the records of such proceedings, and after examining such records pass such order as it thinks fit."
It is this section which has been the subject of serious criticisms in these cases. A perusal of these different sections, which have been referred to above, in my opinion, obviously makes it clear that the machinery set up under the Motor Vehicles Act for granting and refusing licenses is not, arbitrary or unrestricted in its operation. In the various sections of Chapter IV the Transport Authorities have to follow certain regulations, standards and tests in the course of exercising the power given to them under the Act and ultimately at the hearing the applicants for permits have to be given a hearing also and lastly the order refusing the permit has to be based on reasons. Then this order is open to appeal and that appeal also has to be disposed of in a manner prescribed under the rules framed under the Act. Then comes Section 64-A and that gives power to the State Government to call, for the records of such proceedings, and after examining such records to pass such orders as it thinks fit. It is true that Section 64-A by itself does not lay down the test on the basis of which the order should be reviewed by the State Government. It is, however, to be remembered that it forms part of a scheme complete in itself and, therefore, I think it has to be read in the light of that entire scheme. It has been argued that the expression "as it thinks fit" used in Section 64-A, on the face of it, suggests that a wide and uncontrolled power has been given to the State Government. I have already stated that this Section 64-A being a part of the entire scheme created for the purpose of granting licence has to be read in the context of other sections of the Act, and, if so read, the phrase "as it thinks fit" must necessarily mean as it thinks fit in accordance with the provisions of law laid down in the Act. If it is so read, as I think it ought to be read, there is no scope for the criticism that it gives an arbitrary or unguided power to the State Government to grant or refuse licence to whomsoever they like. In this connection our attention was drawn to a similar Section 64-A inserted into the Central Motor Vehicles Act by the State of Madras. The section reads :
"The Provincial Government may, of its own motion or on application made to it call for the records of any order passed or proceeding taken under this Chapter by any authority or officer subordinate to it, for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceeding and after examining such records, may pass such order in reference thereto as it thinks fit."
On the basis of the language used here, it was argued that as this section was enacted by the State of Madras sometime before Section 64-A was passed by the Provincial Legislature of the State of Bihar, it has to be presumed that the Bihar Legislature had before it this Section 64-A enacted by the State of Madras and that they knowingly dropped limitations imposed in the section enacted by the State of Madras. In the section' enacted by the Madras Government, the order has to be tested on three grounds, namely, legality, regularity or propriety. No such standard or ground is given in S, 64-A passed by the Bihar Legislature. It was, therefore, on this ground contended that that shows that the authorities in Bihar wanted to give unfettered and unregulated powers to the State Government in the matter of granting and refusal of licences under the Motor Vehicles Act. This contention on the face of it is, it has to be conceded, not without force and it would have been better it certain standard and basis would have been introduced in the section by the Bihar Legislature also. That, however, cannot necessarily mean, especially when the entire scheme of the Act has to be kept in view, that the Bihar Legislature wanted to give wide unregulated powers to the State Government in the matter of issuing and refusing permits to the applicants for entering into transport business. The expression "as it thinks fit" when read in its context, as already stated above, does clearly lead to the conclusion that the power given to the State Government under Section 64-A has to be exercised in a regulated manner and on the principles laid down in the other sections of the Act preceding to that. That being so, it cannot be said,that Section 64-A creates an unreasonable restriction in enjoying the right of freedom of trade granted to the citizens under Article 19 (1) (g) of the Constitution. Section 64-A, therefore, as passed by the Bihar Legislature, is not constitutionally void or ultra vires from the substantive point of view. It is clearly of a quasi judicial character and the extent of the power is sufficiently defined in the Act. That being so, this power, even if wide in certain respects, cannot be arbitrary and therefore constitutionally void.
11. Coming now to the attack against it by Mr. Ghosh from the procedural point of view, it will suffice to say that the power being of a judicial or quasi judicial character, it has to be exercised in accordance with the rules of natural justice. Mr. Ghosh has contended that Section 64-A, as it stands, does not lay down any provision in itself for a notice or an opportunity of hearing to be given to the parties concerned in the matter. That may be so, but that by itself does not lead to the conclusion that the section contemplates that the orders passed by the transport authorities Will be interfered by the State Government under Section 64-A of the Motor Vehicles Act arbitrarily and without giving any opportunity to the parties affected thereby. It is one thing to say that a particular order passed under Section 64-A is bad for the reason that in passing that order rules of natural justice have not been followed and it is another thing to say that the entire Section 64-A is bad for the reason that, no specific provision is made therein for giving notice or opportunity of hearing to the parties concerned in the case. I have already stated above that under Clause (5) of Section 57 the parties have to be given opportunity of being heard at the time when the matter is taken up for the first time at the first stage by the transport authorities and even on appeal under Section 64 of the Act notices, as provided in the rules, have to be issued to the parties concerned for being heard at the time of the hearing of the appeal. There is no reason to hold that the legislature in enacting Section 64-A of the Act did not keep in view these provisions of the procedural pact of the law; oa the contrary, there are good reasons to think that the legislature must have enacted this section on the assumption that the Siate Government will as a matter of course when interfering with the order passed by the transport authorities give opportunity of hearing to those who are to be affected by that order before the final disposal of the matter by them. Every judicial and quasi-judicial power given to a person or body has necessarily to be exercised in accordance with the rules of natural justice, and, therefore, it has to be presumed that the rules of natural justice are inherently implied in all provisions of law creating such a power.
In support of the contention that a judicial or quasi-judicial body while exercising power must act according to the rules of natural justice, our attention was drawn to a number of English decisions and the decisions of pur own Court and other Courts in India. This principle of law is by now so well-established that it needs no authority for its accept-tance. It has to be accepted more or less as an axiom and, therefore, I think, I need not discuss those cases here. Maxwell on the Interpretation of Statutes in its 9th Edition at page 368 says:
"In giving judicial powers to affect prejudicially the rights of person or property, a Statute is under-stood as silently implying, when it does not expressly provide, the condition or qualification that the power. is to be exercised in accordance with the fundamental rules of judicial procedure, such, for instance, as that which requires that, before its exercise, the person sought to be prejudicially affected shall have an opportunity of defending himself."
For the reasons stated above, I think that even from the procedural point of view Section 64-A of the Motor Vehicles Act is not constitutionally void or ultra vires. The learned Government Advocate, appearing for the State, in the course of discussion on this point argued that though the duty to hear the parties concerned in a case is an usual step to be followed by a quasi-judicial authority in the exercise of its power but that is not in any case necessarily a necessary step and, therefore, the question of giving notice and of giving opportunity to the parties concerned in the matter will depend on the facts of each case and as such this part of the procedure need not be as a rule incorporated as an essential part of the section creating a quasi-judicial power.
In support of this contention our attention was drawn to the provisions of law laid down in Clauses (1) and (2) of Section 439 of the Code of Criminal Procedure . and Section 440 of the Criminal Procedure Code. It is a matter of general principle that a person should not be condemned at his back or on ex parte statements and no order adversely affecting a person should be passed against him unless he has been given a real and effective opportunity of refuting the statements upon which the order is passed. This. follows from the principle of law embodied in the maxim audi alteram partem.
It is, therefore, obvious that the notice and opportunity of hearing is to be given only in those cases where an order adverse to a person is to be passed but not in those cases where he is not to be affected by the order. That being so, the contention of the learned Government Advocate is not without force. This, therefore, also leads to the conclusion that it is the character of the power which will decide as to the exact procedure which has to be followed in a case and not merely the form in which a particular section creating a judicial power or a quasi-judicial power is framed.
12. The second common point argued both by Mr. Ghosh and Mr. Untwalia was that as a matter of fact the State Government while exercising their power given to them under Section 64-A of the Motor Vehicles Act did not give notice or an opportunity of hearing to their clients.
13. In the case of Gobardhan Joshi, who is the client of Mr. Ghosh, the State Government, as it is apparent from the order quoted above, did not cancel the licence issued to him but, in substance, issued a second or additional licence to Abdul Majid Khan (Respondent No. 4), who had in that case moved the State Government under Section 64-A of the Act. In that view of the matter, it was contended by the learned Government Advocate that Gobardhan Joshi could not have any justification for the grievance that no notice or an opportunity of hearing was given to him at the time when the order dated the 30th December 1954, was passed in favour of Abdul Majid Khan.
I think this contention has got sufficient force. The procedure of giving an opportunity for hearing in a case, as already stated above, is based on the principle that nobody should be condemned at his back. In this case no order adverse to Gobardhan Joshi was passed by the State Government. I, therefore, think that there is no substance in the contention of Mr. Ghosh that even then he should have been given an opportunity to be present and have his say in the matter. Under Article 19 (1) (g) every citizen has a right to carry on business of transport.
As to the question whether this right extends to his carrying on business on the public road also, it will suffice to quote here the law laid down by the Supreme Court on the subject in the case of Saghir Ahmad v. State of U. P., AIR 1954 SC 728 (E). Therein their Lordships' referring to a decision of the Madras High Court in C. S. C. Motor Service v. State of Madras, AIR 1953 Mad 279 (F), observed; "Ayyar, J., has, in our opinion, rightly pointed out that this doctrine of 'franchise' has no place in our Constitution. Under the Indian Constitution the contract carriers as well as the common carriers would occupy the same position so far as the guaranteed right under Article 19 (1) (g) is concerned and both are liable to be controlled by appropriate regulations under Clause (6) of that Article. The law on the point, as it stands, at present has been thus summed up by the learned Judge, "The true position, then is, that all public streets and roads vest in the State, but that the State holds them as trustees on behalf of the public. The members of public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as trustees on behalf of the public is entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the public generally; ........ but subject to such limitations the right of a citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the State owns the highways.' ''We are in entire agreement with the statement of law made in these passages, within the limits imposed by State regulations any member of the public can ply motor vehicle on a public road. To that extent he can also carry on the business of transporting passengers with the aid of the vehicles''.
This, therefore, makes it clear that every citizen has the fundamental right to carry on business in transport even on the public road and that is subject only to the limitations and restrictions imposed upon him under the Motor Vehicles Act. The moment those restrictions are removed, his right, which is for the time being in the absence of licence dormant, is revived and he, like others holding the licence, can enjoy that right. It, therefore, cannot be said that the mere issue of a licence in favour of one citizen creates a right in him to object to the issue of licence to any other citizen. That is repugnant to the very conception of the fundamental right given under Article 19 (1) (g) of the Constitution.
I, therefore, think that in the disposal of the application filed by Abdul Majid Khan under Section 64-A of the Motor Vehicles Act, Gcbardhan Joshi had no right to be heard so long as the licence issued in his favour was not to be affected by the order passed therein. That being so, the absence of any notice to Gobardhan Joshi in the proceeding started under Section 64-A by Abdul Majid Khan cannot invalidate the order passed therein.
14. The position in the case of Kedarnath Lath is, however, entirely different. In this case though a licence was originally granted to Rajani Kant Thakur on 9th/10th May 1953 by the Regional Transport Authority, Muzaffarpur, that order was, on certain grounds subsequently set aside by the appellate authority and the licence issued to him was transferred to Kedarnath Lath.
Subsequently the State Government on an application made to them by Rajani Kant Thakur set aside the order passed by the appellate authority in favour of Kedarnath Lath and thereby cancelled the license issued in his favour and issued it in the name of Rajani Kant Thakur. This was done by the State Government at the back of Kedarnath Lath without giving any notice or hearing to him. It has already been stated above that the power given to the State Government under Section 64-A of the Motor Vehicles Act is a quasi-judicial power and, therefore, it has to be exercised in accordance with the rules of natural justice.
If, therefore, the licence issued to Kedarnath Lath by the appellate authority was to be set aside, it was incumbent on the part of the State Government to issue a notice to him and to give him an opportunity of showing cause as to why his licence should not be cancelled. That not having been done, the order so passed adverse to his interest without giving him an opportunity of showing cause in the matter is contrary to the principles of natural justice and has, therefore, to be held void and illegal.
15. Before I proceed further, it may be noted here that on the point relating to the non-issue of any notice to Gobardhan Joshi before the passing of the order by the State Government on the 30th December 1954, a point was raised by the learned Government Advocate that the application of Gobardhan Joshi filed under Article 226 of the Constitution is liable to be thrown out on this short point alone that none of his rights, either fundamental or legal, was contravened by the order passed by the State Government on the 30th December 1954, and in support of this reliance was placed by him on the cases of Bagaram Tulpule v. State of Bihar, ILR 29 Pat 491: (AIR 1950 Pat 387) (FB) (G); State of Orissa v. Madan Gopal, AIR 1952 SC 12 (H), and Charanjit Lal Chowdhury v. Union of India, AIR 1951 SC 41 (I). In the case of ILR 29 Pat 491: (AIR 1950 Pat 387) (G), Meredith, C. J., held:
"Undoubtedly, therefore, Article 226 contemplates the issue of writs and directions for purposes other than the enforcement of the fundamental rights. At the same time the words can hardly mean that the High Court can issue writs for any purpose it pleases. I think the correct interpretation is that the words mean for the enforcement of any legal right and the performance of any legal duty. To that extent the Words must be read ejusdem generis, which is the ordinary principle of construction."
In the case AIR 1952 SC 12 (H), Kama, C. J., observed:
"The language of the Article shows that the issuing of writs or directions by the Court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution (Fundamental Rights) has been infringed. It can also issue writs or give similar directions for any other purpose. The concluding words of Article 226 have to be read in the context of what precedes the same. Therefore, the existence of the right is the foundation of the exercise of jurisdiction of the Court under this Article."
In the case of AIR 1951 SC 41 (I), the Article under discussion was Article 32 and not Article 226, but the decision in that case, however, is of assistance in construing Article 226 as well. In that case three of the learned Judges, who heard that case, were of the view that no one except those whose rights are directly affected by law can raise the question of the constitutionality of that law. They further held that "the company and the share-holders are in law separate entities and if the allegation is made that any property belonging to the Company has been taken possession of without compensation or the right enjoyed by the Company under Article 19 (1) (f) has been infringed, it would be for the Company to come forward to assert or vindicate its own rights and not for any individual share-holder to do so."
In the present case it has been conceded that fee order passed by the State Government on the 30th December 1954, did not result in the contravention of any of the fundamental rights of Gobardhan Joshi. What was, however, contended was that under Section 47 of the Motor Vehicles Act a Regional Transport Authority in deciding whether to grant or refuse a stage carriage permit shall have to keep in view the adequacy of existing road passenger transport services between the places to be served, the fares charged by those services and the effect upon those services of the service proposed and the operation by the applicant of unremunerative services in conjunction with remunerative services shall also be taken into consideration.
That being so, the passing of the order by the State Government on the 30th December 1954, giving an additional or second permit to Abdul Majid Khan at the back of Gobardhan Joshi and without giving any notice to him about it resulted in the contravention of a right given to him under Section 47 of the Motor Vehicles Act, In my opinion, it is doubtful whether the matters directed to be taken into consideration under Clauses (c) and (e) of Section 47 of the Act are at all consistent with the restrictions suggested in Article 19 (6) of the Constitution.
In the case of AIR 1953 Mad 279 (F), their Lordships held that Section 47 (1) (c) is in part valid and Section 47 (1) (e) is wholly void. I, however, do not propose to give my final opinion on this point in this case. In my opinion, it is apparent on the face of it that the procedure suggested under Section 47 does not create a substantive right in favour of any person or persons who are already provided with road transport facilities along or near the proposed route or routes that he or they alone should have a monopoly on that route and no other citizen should be allowed to ply bus thereon.
The provision laid down in Section 47 (1) of the Motor Vehicles Act for the consideration of representations made by persons already providing road transport facilities is at best only a rule of administrative prudence to be followed by the transport authorities in the course of the exercise of the power given to them under Sections 47 and 48 of the Act, and the question of consideration of representations arises only if any such representation is in fact made by the persons already providing road transport facilities.
That, in any case, by itself does not give any legal right to such persons to be. provided with a notice and hearing before a decision is taken by the transport authorities on the point as to how many stage carriages are to ply on any particular route. I, therefore, think that Gobardhan Joshi had no legal right to claim that he should have been given a notice and an opportunity to file a representation before the case of Abdul Majid Khan for the grant of a licence was taken by the State Government under Section 64-A of the Act. In that view of the matter, I agree with the learned Government Advocate that his application under Article 226 has to be dismissed on that ground alone.
16. Coming HOW to the additional points which were raised exclusively by Mr. Ghosh in support of his client, I take up first the question of limitation. His contention was that the 'comma' in Section 64-A after the word 'behalf' therein suggests that the phrase 'within thirty days' refers not to the application but to the phrase 'call for the records of such proceedings, and after examining such records pass such order as it thinks fit'.
In this case, therefore, according to him, though the application was filed on the 8th December 1953, that is, within thirty days from the order passed by the appellate authority, on the 5th December 1953, the State Government passed the order on the 30th December 1954, that is, long after a period of thirty days from the 5th December 1953, against which the application under Section 64-A had been moved by Abdul Majid Khan. It was, therefore, submitted that the order passed by the State Government on the 30th December 1954, was passed at a time which was beyond the period of limitation and as such, that Order is void. In my opinion, it is clear that the entire contention is based on the assumption that the 'comma' after the word 'behalf refers to the phrase 'call for the records of such proceedings, and after examining such records pass such order as it thinks, fit' and not the phrase 'on application made to it in this behalf'.
I, however, think that the period stipulated ia Section 64-A of the Act in fact refers to the phrase 'on application made to it in this behalf. In other words, the section means that the application has to be made within thirty days and not that the records of the proceeding have to be called for and orders passed thereon within thirty days. That is consistent with the very idea of an application contemplated by Section 64-A. Further, it is well-established rule of interpretation of Statutes that in interpreting it commas need not be necessarily taken into consideration and the Court has ordinarily to read the Statute without the commas inserted in it. They in fact do riot form part of the Statute especially in a case like the present one where the comma instead of helping the reading of the section makes the section completely meaningless. It is most unreasonable to think that though the power under Section 64-A of the Act cannot be exercised-without an application, still the Legislature would not out any limitation for filing the application but would put a period of limitation for the State Government to call for the records of the proceeding and to pass an order on that application.
I, therefore, hold that the section has to be read without the comma found in the print of the section after the word behalf. If the section is so read, as it ought to be read, the phrase 'within. thirty days' should refer to the phrase 'on application made to it in this behalf and not to the phrase 'call for the records of such proceedings, and after examining such records pass such order as it thinks fit'. This reading of the rule of the construction of a Statute is fully established by the rule of law laid down on this point in the case of Lewis Pugh v. Ashutosh Sen, AIR 1929 PC 69 (J) and the case of Maharani of Burdwan v. Krishna Kamini Dasi, ILR 14 Cal 365 (PC) (K). I, therefore, think there is no substance in the contention of Mr. Ghosh on the point of limitation.
17. The other point raised by Mr. Ghosh was that in considering the application filed by Abdul Majid Khan under Section 64-A of the Motor Vehicles Act the State Government travelled beyond the scope of the matter agitated in that application and as such the order passed by them on the 30th December 1954, was bad in law. In support of this reliance was placed on the case of R v. Minister of Transport, 1934-1 KB 277 (L).
In my opinion, the facts of that case are not at all applicable to the facts of the present case. In the present case it is clear that Abdul Majid Khan had applied for a permit on the Pakur-Godda Road. That application had been originally allowed by the East Bihar Regional Transport Authority. Thereafter, in appeal the order in his favour was set aside. Against that order he moved the State Government under Section 64-A. There his application was allowed and the order originally passed by the East Bihar Regional Transport Authority, Bhagalpur, was restored.
In this view of the matter it cannot be said that in passing the order dated the 30th December 1954, the State Government travelled beyond the matter agitated before them. But the confusion, however, arises if this matter is considered along with the fact that the East Bihar Regional Transport Authority, Bhagalpur, had originally advertised for only one vacancy and, therefore if the vacancy was only one, the consideration of the second or additional permit could not arise.
In my opinion, the question whether there should have been one vacancy or more than one is not to be considered by this Court. That is a matter exclusively within the discretion of the transport authorities given by them under the Motor Vehicles Act. In that view of the matter, the application of Abdul Majid Khan has to be read on its own merits and not in the context of the number of vacancy advertised originally by the East Bihar Regional Transport Authority, That being so, it cannot be said that the State Government in passing the order in favour of Abdul Majid Khan travelled beyond the scope of the matter brought before them under Section 64-A. I, therefore, think that there is no substance in this contention.
18. One additional point raised by Mr. Untwalia in support of his client was that the power given to the State Government under Section 64-A of the Motor Vehicles Act is not a revisional power but an appellate power. On that footing he contended that the enactment of Section 64-A of the Act by Bihar Legislature resulted in fact in the imposition of a second appellate authority, and, therefore, the entire procedure of an appeal should have been provided therein and; in the case of his client, should have been followed.
This contention is perhaps based on the argument advanced on behalf of the petitioner in the case of Vijai Motor Transport Association v. Mahakoshal Transport Service, AIR 1953 Nag 150 (M). From the facts of that case it appears that at that point of time no section similar to Section 64-A inserted in the Motor Vehicles Act by the State of Bihar was enacted by the State of Madhya Pradesh.
In these circumstances it was contended that Section 64 of the Motor Vehicles Act, 1939, when read with Rules 72 and 73 of the Madhya Pradesh Motor Vehicles Rules, provides for a second appellate authority, and on that footing it was pressed that the second appeal by the aggrieved party in that case was maintainable before the State Government against the order passed by the appellate authority. The learned Judges, who heard that case, held:--
"The Provincial (State) Transport Authority is not an appellate authority over the decision of the Regional Transport Authority functioning under the several clauses aforesaid of Section 64 of the Act though the appellate, authority is. to consist of the Chairman and two members of the Provincial Transport Authority as aforesaid. In other words, the appellate authority is a smaller body carved out of the Provincial Transport Authority and clothed with appellate power to hear appeals from certain orders passed by a Regional Transport Authority under Section 64 of the Act. Therefore, Rule 74 dealing with the procedure in respect of appeals speaks of (i) the Provincial Government, (ii) the Tribunal, and (iii) the Appellate Authority, as the case may be, as the relevant authorities for entertaining and hearing appeals.
In this view of the matter, it is manifest that there is no right of second appeal provided by the Statute and that there is no appeal against the appellate orders of the appellate authority constituted under Rule 73 aforesaid. It must, therefore, be held that the State Government were perfectly right in holding that the appeal presented to them by the petitioner was wholly untenable."
In my opinion, the law laid down in the case of AIR 1953 Nag 150 (M), is not in any way altered by the enactment of Section 64-A by the Bihar Legislature. So far as the provision for appeal is concerned, that is even now exclusively controlled by Section 64 of the parent Central Act. What, in my opinion, Section 64-A enacted by the Bihar Legislature does is to provide a machinery for revisional jurisdiction to revise all orders passed under the Motor Vehicles Act by any authority or officer subordinate to it.
It is a power similar to one created under Section 217 of the Chota Nagpur Tenancy Act or one created under Section 114 (1) of the Bengal Estates Partition Act or one created by, Section 439 of the Code of Criminal Procedure. It, in substance, gives a residuary power to the State to see that no injustice is done to any citizen in the matter of his enjoying the right of freedom of trade granted to him in Article 19 (l) (g) of the Constitution, though it is obvious that in a case where the State comes to the opinion that the order passed in favour of any particular applicant is to be altered or modified, the State in accordance with the rules of natural justice has to give notice and opportunity of hearing to that person.
In my view, therefore, there is no substance in the contention of Mr. Untwalia that Section 64-A enacted by the Bihar Legislature provides a second appellate authority for hearing the application filed under the Motor Vehicles Act, 1939. That power is only revisional and, therefore, it was not at all necessary for the Legislature to lay down any elaborate procedure for the exercise of the power under that section on a line parallel to what is normally followed by an appellate authority. The contention of Mr. Untwalia has, therefore, to be rejected.
19. For the reasons stated above, I hold that the application bearing No. M. J. C. 129 of 1954 filed by Kedarnath Lath should be allowed and the respondents in that case should be restrained from enforcing the order passed by the State Government on the 22nd February 1954, under Section 64-A of the Motor Vehicles Act setting aside the order dated the 6th September 1953, passed by the Appeal Board of the State Transport Authority, Bihar, and allowing the representation made by Rajani Kant Thakur while that bearing No. M. J. C. 4 of 1955 has to be dismissed.
In the circumstances of the case, no order for costs is passed in M. J. C. 4 of 1955 but in the other case, namely, M. J. C. 129 of 1954, Kedarnath Lath will be entitled to get cost from the State of Bihar. Hearing fee in this case is assessed at Rs. 100. DAS, J.:
20. I agree to the orders proposed to be passed in these two cases by my learned brother, whose Judgment I have had the advantage arid privilege of reading before delivery. I say, with great respect, that though I do not agree to all the reasons given by my learned brother for the orders proposed to be passed by him, I am in substantial agreement with him on the main questions, argued before us.
21. One such question is if Section 64-A of the Motor Vehicles Act, 1939, as amended in Bihar, gives a naked and arbitrary power to the State Government and is, therefore, an unreasonable restriction on the right guaranteed to every citizen of India under Article 19 (1) (g) of the Constitution. I. agree with my learned brother that Section 64-A, though couched in very wide terms, really gives a revisional power to the State Government; and the section has to be considered along with other sections in the Act bearing on the question of control of transport vehicles, including the grant of permits and the hearing of appeals in respect of such grant.
If Section 64-A is so read, then it is clear from the power given to the State Government is a revisional power which has to be exercised according to the well-established principles of natural or fundamental justice. I agree that a similar provision introduced by the State of Madras is expressed in language which is perhaps more appropriate to indicate the nature of the power given to the State Government; the Madras provision states in clear terms that the power given to the State Government is 'for the purpose of satisfying itself as to the legality, regularity and propriety of such order or proceeding, etc.' The Bihar provision does not use these words, but in effect the provision is similar in nature. I am fortified in this view by the two following considerations: the first is that the State Government can exercise the power only 'on application made to it in this behalf'. If the intention of the Legislature was to give a naked and arbitrary power, the power would not have been limited by the necessity of an application being made to the State Government in that behalf.
The second consideration is that it is obligatory on the State Government to call for and examine the records of the proceedings before passing any order, and the power of the State Government is confined to orders passed in the course of any proceedings taken under Ch. IV of the Motor Vehicles Act, 1939. Chapter IV deals with the control of transport vehicles, including the grant of permits and hearing of appeals from such grant. It is obvious, therefore, that the power has to be exercised with reference to other sections occurring in Ch. IV.
These considerations lead me to the conclusion that though Section 64-A says that the State Government may pass such orders as it thinks fit, the power is really of a quasi-judicial nature. A power which is quasi-judicial in nature and has to be exercised in accordance with the well-established principles of fundamental justice cannot be said to be naked or arbitrary power. In its very nature the power is regulated by well-known judicial considerations.
22. I agree with my learned brother about three other points argued before us, namely, (1) that the State Government must pass the order within thirty days; '(2) that Section 64-A gives an appellate power and not a power of revision; and (13) that in Miscellaneous Judicial Case No. 4 of 1955 the State Government travelled beyond the scope of its power of revision in granting a permit to Abdul Majid Khan.
23. There is, however, one point on which I have still some hesitation, and that is the point regarding the right of Gobardhan Joshi, petitioner in M. J. C. No. 4 of 1955, to present his application. While I agree with my learned brother that there is no fundamental right to a monopoly in road transport by any citizen o£ India, I am inclined to think that under Article 226 of the Constitution, Gobardhan Joshi can ask for a writ if his right under the licence or permit granted to him has been prejudicially affected, even though he has no fundamental right to a monopoly.
The expression 'for any other purpose' occurring in Clause (1) of Article 226 clearly shows that it is not confined to the enforcement of fundamental rights only. Therefore the question is if any right of Gobardhan Joshi has been prejudicially affected. It is worthy of note that the East Bihar Regional Transport Authority, Bhagalpur, had originally advertised for only one vacancy on the Pakur-Godda Road, and a permit was granted to only one person, to Abdul Majid Khan first by the transport authority, and then to Gobardhan Joshi by the appellate authority.
The State Government in effect granted permits to two persons, without, however, giving an opportunity to Gobardhan Joshi, the existing permit-holder, to make his submissions on the necessity or desirability of the grant of a second permit. Under Section 48 of the Motor Vehicles Act, a Regional Transport Authority can restrict the number of permits of stage carriages, and in restricting the number, the transport authority has to take into consideration the matters set forth in Sub-section (1) of Section 47. Under Section 43-A, inserted by Bihar Act XXVII of 1950, it was competent for the State Government to issue such orders and directions as it considered necessary, in respect of any matter relating to road transport, to the Regional Transport Authority.
There is nothing, however, in the record to show that the State Government considered the necessity or desirability of any direction under Section 43-A that there should be more than one permit for the stage carriage on the Pakur-Godda Road. In effect, they interfered with the order of the State Transport Authority that there should be one permit for the Pakur-Godda Road by the order which they passed in revision on the application of Abdul Majid, and this they did without giving an opportunity to the existing permit-holder to make his submissions with regard to the undesirability of a second permit on the same road with reference to the considerations laid down in Section 47 of the Motor Vehicles Act.
Personally, I am inclined to the view that the right of Gobardhan Joshi under the permit granted to him is or has been prejudicially affected by the second permit granted to Abdul Majid; and if the grant of a second permit to Abdul Majid has been in excess of the jurisdiction Conferred on the State Government by Section 64-A, or in contravention of the principles of fundamental justice, then Gobardhan Joshi has a right to come to this Court for a writ.
24. I concede, however, that it is possible to take a different view, namely, the view which my learned brother has taken; that is, that the right of Gobardhan Joshi under the permit granted to him remains intact; and that as he has no monopoly to road transport, the grant of a second permit does not prejudicially affect his right under his existing permit.
For this reason, I do not wish to press or pursue my view to the point of a difference of my opinion, and agree to the order proposed by my learned brother in both the cases.