- Bookmark
- Share
- CaseIQ
Mohammad Raihan v. The State Of Uttar Pradesh And Others
Concise Analytical Summary of the Judgment — Mohammad Raihan v. Regional Transport Authority, Meerut
Factual and Procedural Background
The petitioner, Mohammad Raihan, applied for a stage carriage permit which was rejected by the Regional Transport Authority (RTA), Meerut. An appeal to the State Transport Authority confirmed the RTA's decision, and the petitioner sought writ relief under Article 226 of the Constitution to quash the RTA's order and to obtain a mandamus directing the grant of a permit.
By an order dated 25 February 1955 this Court allowed the petition, quashed the RTA's order and directed the RTA to consider the petitioner's application and not to reject it on the ground that adequate transport service existed on the route. The RTA left the application pending for some time. On 25 July 1955 the petitioner sought a direction for compliance with the Court's order. The Standing Counsel obtained time and later undertook that the RTA would dispose of the application by 21 October 1955.
On 18 October 1955 the RTA again rejected the petitioner's application. The RTA's order stated that consideration had earlier been postponed pending a similar writ before the Lucknow Bench; thereafter it noted two vacancies on the route were filled by buses on temporary permits and rejected the petitioner's application because he was only a driver (not a recently displaced operator) and there were other displaced operators with longer experience.
The petitioner applied to amend his miscellaneous application to quash the RTA's 18 October 1955 order and to obtain a mandamus directing grant of a permit. The State and RTA filed a counter-affidavit defending the RTA's exercise of discretion as bona fide and on merits.
Legal Issues Presented
- Whether the RTA's rejection of the petitioner's application was based on grounds that fall within the matters to be considered under Section 47 of the Motor Vehicles Act, or whether it was based on extraneous considerations (for example, that the applicant was only a driver and not a displaced operator).
- Whether this Court should exercise its jurisdiction under Article 226 despite the availability of an appellate remedy to the State Transport Authority, given the facts and prior delay.
- Whether this Court could, having quashed the RTA's order, issue a direction (including mandamus) under Article 226 and/or Article 227 to the RTA to grant a permit to the petitioner.
Arguments of the Parties
Petitioner's Arguments
- The RTA rejected the application on grounds extraneous to Section 47 of the Motor Vehicles Act — specifically because the petitioner was "only a driver" and not a recently displaced operator; such reasons are not enumerated in Section 47.
- The phrase "public interest" in Section 47 must be read as referring to the interest of the public who use the stage carriage, not a broader or different public-policy rationale permitting discrimination among applicants on the stated grounds.
- There is no statutory disqualification for a driver or a non-displaced person from being granted a stage carriage permit; where applicants are not more numerous than vacancies, the RTA cannot reject an applicant on the alleged availability of displaced operators.
State / Regional Transport Authority's Arguments
- The RTA argued that it had considered the application on merits and exercised its discretion bona fide, rejecting the application because there were displaced operators with greater claim and experience; it was said to be in public interest to favour such applicants.
- The State Counsel contended that an alternative remedy existed (appeal to the State Transport Authority) and therefore this Court should not exercise its discretionary jurisdiction under Article 226.
- The Standing Counsel relied on a prior decision of the Lucknow Bench (Gokul Chand v. The State Transport Authority) to support the proposition that the authority has a discretion to choose among applicants and may refuse permits even where vacancies existed at the time of application, particularly when it finds no suitable applicants.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gokul Chand v. The State Transport Authority (Writ Petition No. 19 of 1954) | The Lucknow Bench held that no certiorari would lie where the RTA's decision on adequacy of transport facilities was not shown to be incorrect on the record; it also contained observations (treated as obiter by this Court) about an authority's discretion to choose among applicants when vacancies are fewer than applicants. | This Court noted the Standing Counsel's reliance on that decision but held its observations that might suggest rejecting applications on non-Section 47 grounds were obiter and do not authorize rejection for reasons outside Section 47. |
| Moti Lal v. Government of the State of Uttar Pradesh, A.I.R. 1951 All. 257 | Full Bench holding that conditions for grant/refusal of permits are to be found in Section 47 and that the Regional Transport Authority must exercise its discretion in accordance with that provision; also that temporary permits granted on grounds not covered by the statute are invalid under the relevant provision (Sec. 62 in that case). | The Court relied on this Full Bench decision to affirm that the RTA's discretion is not unfettered and must be exercised within the scope of the statutory provisions (Sec. 47). The decision was used to support the conclusion that rejection for reasons beyond Section 47 is ultra vires. |
| Hari Vishnu Kamath v. Syed Ahmad Ishaque, 1955 S.C.R. 1104 | Supreme Court observation that while certiorari under Article 226 allows annulment of a tribunal's decision, Article 227 permits the High Court not only to annul but also to issue further directions in the matter; superintendence under Article 227 is both judicial and administrative. | This observation was cited to support the proposition that after quashing an order under Article 226, the Court may, under Article 227, issue directions (including mandamus) to the authority to grant relief where appropriate. |
| Kr. Sri Tri Vikram Narain Singh v. State of Uttar Pradesh (Writ No. 464 of 1954) | Illustration from this Court where it issued a direction restraining the State from withholding pension payments — effectively directing the State to pay — showing that the Court can issue positive directions to execute rights. | The Court relied on this recent example to show there is no bar to issuing a direction to an authority (here, the RTA) to perform an act (grant a permit) where circumstances justify such a direction. |
Court's Reasoning and Analysis
The Court examined whether the RTA's stated grounds for rejecting the petitioner's application fell within the matters the RTA is required to consider under Section 47 of the Motor Vehicles Act. Section 47 lists specific considerations (public interest of users, advantages to the public, adequacy of existing services, benefit to particular localities, operation of other services by the applicant, road conditions, and representations by existing operators or local authorities).
The RTA's rejection was grounded on the applicant's status as "only a driver" and not a recently displaced operator, and on the asserted availability of displaced operators with longer experience. The Court found these reasons to be extraneous to the enumerated considerations in Section 47. The Court emphasized that "public interest" under Section 47 refers to the interests of the users of the stage carriage service and not to an open-ended policy rationale that would permit discriminating among applicants on the basis stated by the RTA.
The Court distinguished the Lucknow Bench decision (Gokul Chand) cited by the Standing Counsel, treating certain broad observations in that case as obiter and not as authority for allowing rejection on grounds outside Section 47. It reiterated the Full Bench decision in Moti Lal which establishes that the statutory conditions (Sec. 47) delimit the RTA's power and that the discretion conferred is not unfettered.
The Court reasoned that when the number of applicants does not exceed the number of vacancies, the RTA cannot treat the mere possibility that other displaced operators might be available as a ground to reject an applicant; comparative merits among applicants become relevant only where selection among multiple applicants is required. To permit rejection on grounds outside Section 47 would amount to an unjustified restriction on the fundamental right to carry on business (Art. 19(1)(g)), which could only be validated by rules within Article 19(6); in other words, the permissible limitations are the statutory ones (Section 47).
On the question of alternative remedy, the Court acknowledged the general rule that Article 226 will not be exercised if an adequate alternative remedy exists. However, having regard to the petitioner's prior successful challenge, the pendency and delay in the RTA's consideration, and the subsequent rejection on a ground beyond Section 47, the Court concluded that the appellate remedy would not be equally adequate and that the petitioner would be prejudiced by waiting for that remedy.
Concerning the relief appropriate in the case, the Court rejected the submission that it was limited to annulling the RTA's order and could not issue a direction to grant a permit. The Court explained that Article 226 confers broad powers and, further, Article 227 allows the Court, after quashing an order, to issue further directions. The Court cited Supreme Court authority (Hari Vishnu Kamath) and a recent decision of this Court (Kr. Sri Tri Vikram Narain Singh) to show that the High Court can, in suitable cases, issue positive directions to administrative authorities.
Applying these principles to the facts, the Court concluded that the RTA's rejection was ultra vires Section 47 and thus liable to be quashed; further, it was appropriate in the circumstances to direct the RTA to grant the permit to the petitioner.
Holding and Implications
Holding: The petition is ALLOWED. The order of the Regional Transport Authority dated 18 October 1955 is quashed, and the Regional Transport Authority is directed to grant the permit to the petitioner. The petition was allowed with costs.
Implications:
- Direct effect: The RTA's specific order rejecting the petitioner's application is set aside and the RTA is ordered to grant the permit to Mohammad Raihan; costs were awarded in the petitioner's favour.
- Scope of administrative discretion: The judgment reiterates that the RTA's discretion to grant or refuse stage carriage permits is confined to the considerations enumerated in Section 47 of the Motor Vehicles Act; rejection on grounds outside that statutory list is ultra vires and liable to be quashed under Article 226.
- Remedial scope of the High Court: The Court confirms that, in appropriate circumstances, it may not only quash an ultra vires administrative order but may also issue directions (including mandamus) under Articles 226 and 227 to secure the enforcement of rights, particularly where alternative remedies are inadequate.
- Precedential note: The Court treated certain observations in Gokul Chand as obiter and relied on the Full Bench in Moti Lal and Supreme Court guidance (Hari Vishnu Kamath) to frame the limits on the RTA's discretion; the decision applies those principles to the facts before it rather than announcing a novel rule beyond those authorities.
This summary is based exclusively on the text of the provided opinion and does not add information beyond what the opinion contains.
Mehrotra, J.:— The petitioner Mohammad Raihan had applied for a stage carriage permit which was rejected by the Regional Transport Authority, Meerut. An appeal was filed to the State Transport Authority and the decision of the Regional Transport Authority was confirmed by the State Transport Authority. An application under Art. 226 of the Constitution was thereafter filed in this Court for a writ of certiorari quashing the order of the Regional Transport Authority refusing the stage carriage permit to the petitioner and also for a mandamus commanding the Regional Transport Authority to grant a permit in favour of the applicant. By my order dated 25th February, 1955, the petition was allowed, the order of the Regional Transport Authority was quashed and the Regional Transport Authority was directed to consider the application of the petitioner for the grant of a permit and it was directed further not to reject it on the ground that there was adequate transport service on the route. The application remained pending for some time and no orders were passed by the Regional Transport Authority.
2. Thereafter an application was made on the 25th July, 1955 to this Court praying that a direction be issued to the Regional Transport Authority to carry out the orders and directions of this Court. The Standing Counsel however, took time to take the necessary instructions from his client. On a subsequent date, the Standing Counsel gave an undertaking that the application would be disposed of by the Regional Transport Authority by the 21st of October, 1955. Thereafter on the 18th of October, 1955, the Regional Transport Authority rejected again the petitioner's application for a permit and an application was made to this Court praying that the reliefs claimed in the miscellaneous application made on the 25th July, 1955, which was numbered as 1127 of 1955 be allowed to be amended. By amendment it was prayed that the order of the Regional Transport Authority dated 18th of October, 1955 refusing the permit to the petitioner be quashed and further a writ of mandamus be issued commanding the opposite-party to grant a permit to the petitioner. Notice was issued to the opposite-parties the State of Uttar Pradesh and the Regional Transport Authority, Meerut and the Standing Counsel took time to file a counter-affidavit. A counter-affidavit was filed on behalf of the State and the Regional Transport Authority. The Regional Transport Authority in its order dated 18th October, 1955 has stated that as another writ petition filed by Ved Singh Sohan Vir Singh, which was of similar nature, was pending before the Lucknow Bench, the consideration of the petitioners application was postponed till the final decision in that petition. The petition before the Lucknow Bench was disposed of on the 2nd July, 1955 and thereafter the present application was considered. The Regional Transport Authority further remarked that there were two vacancies on the route and two buses on temporary permits were plying against those vacancies. As the applicant was only a driver and not even a recently displaced operator, his application could not be granted. It was observed by the Regional Transport Authority that there were many others who were recently displaced operators and had more experience and claim than the applicant. It was, therefore not in the public interest to grant a permit to the applicant who was a fresh comer as against those who were old operators and had a longer standing and experience. As there were no suitable applicants the application was rejected. A counter-affidavit has been filed in which it is stated that the Regional Transport authority, after consideration, has rejected the application of the petitioner on merits and has exercised its discretion bona fide. The main contention raised by the petitioner in the present petition is that the application of the petitioner has been rejected on grounds which are extraneous to the considerations under the Act. Sec. 47 of the Motor Vehicles Act provides:
“47(1). A Regional Transport Authority shall in deciding whether to grant or refuse a stage carriage permit, have regard to the following matters namely:—
(a) the interest of the public generally;
(b) the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken;
(c) 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;
(d) the benefit to any particular locality or localities likely to be afforded by the service;
(e) the operation by the applicant of other transport services and in particular of unremunerative services in conjunction with remunerative services; and
(f) the condition of the roads included in the proposed route or routes; and shall also take into consideration any representations made by persons already providing road transport facilities along or near the proposed route or routes or by any local authority or police authority within whose jurisdiction any part of the proposed route or routes lies or by any association interested in the provision of road transport facilities.”
3. The contention of the petitioner is that the Regional Transport Authority has not rejected the petition on any of the grounds in Sec. 47. The reason given by the Regional Transport Authority for rejecting the application of the petitioner is that he was only a driver and not even a recently displaced person. There were other displaced operators available. The Regional Transport Authority has no doubt said that it would not be in the public interest to grant a permit to the applicant who was a fresh comer as against those who were old operators. But the question of comparative merits of different applicants could only arise if there were other applicants in the field and where there are no other applications, it cannot be said that as other displaced operators may be available, the petitioner, who was not even a displaced operator, was not entitled to be granted a permit and that it was in the public interest not to grant permit to him. The words “public interest” in Sec. 47 mean interest of the public which uses the stage carriage and not the public in general. There is nothing in the Act which disqualifies a driver or a person who is not a recently displaced person for being granted a stage carriage permit. The effect of the Regional Transport Authority's order rejecting the application is that the petitioner cannot apply for the grant of a stage carriage permit at all. Where there are a number of applicants and lesser number of permits are to be granted in view of the number of vacancies, it may be open to the Regional Transport Authority, in order to make selection, to consider the respective claims of the various applicants and the experience in the business may be a criterion for giving preference to one applicant over the other but when the number of applicants is not more than the vacancies, the fact that an applicant is not a displaced operator cannot be regarded as an absolute disqualification and the application cannot be rejected on the ground that other displaced persons may be available and, in my opinion, the considerations on which the petitioner's application was rejected do not come within the scope of Sec. 47. Reliance was placed by the Standing Counsel on the decision of the Lucknow Bench in the Writ Petition No. 19 of 1954 (Gokul Chand v. The State Transport Authority, through the Secretary). In that case Gokul Chand made an application to the Regional Transport Authority, Agra for the grant of a stage carriage permit and his application was made in 1950 and it was rejected on the 15th of May, 1951 by a short order that adequate transport facility was available on the route. An appeal was preferred to the State Transport Authority and it was dismissed. Thereafter a petition was filed before the Lucknow Bench which was based on the ground that on the date when the Regional Transport Authority passed the order rejecting the application of the petitioner, there were vacancies in existence and that the Regional Transport Authority was, therefore, bound to issue permits. It was held by the Bench that no writ of certiorari could be granted in the case as the decision of the Regional Transport Authority was not without jurisdiction or against the principles of natural justice. Considering the next argument advanced by the petitioner that in fact there were vacancies existing on the date on which the petition was refused, the Bench came to the conclusion that there was no evidence on the record to substantiate the allegation that the decision of the Regional Transport Authority on the question of adequacy of transport facility on the route was incorrect. It was then urged by the petitioner in that case that by the time the matter came up before the Appellate Tribunal, vacancies had come into existence and the Appellate Tribunal should have directed the Regional Transport Authority, in view of the changed circumstances, to grant a permit. It was held by the Bench that under the circumstances, it could not be said that the State Transport Authority did not exercise its jurisdiction properly. It cannot, therefore, be said that this case is an authority for the proposition that it is open to the Regional Transport Authority to reject the application on grounds which do not come within the ambit of Sec. 47. Particular emphasis was laid on the following observation in that case:—
“Supposing that there were ten vacancies and twenty applicants, it is certainly in the discretion of the authority empowered to issue permits to refuse ten of the permits since it can issue only ten permits. Supposing it were to issue ten permits and refuse the other ten, each of the persons to whom it refused to grant the permit may come forward and say that since the vacancies existed on the date on which he applied, the authority had no jurisdiction to refuse the permit sought. Such a contention is wholly untenable. The authority concerned has been given a discretion, when there are a certain number of applicants before it and the number of vacancies is less, to choose to whom it shall issue the permits. If it finds that, as a matter of fact, no suitable applicant has made an application, it can reject all the applications. It is the responsibility of the authority exercising quasi-judicial functions of this character to see that the persons whom it chooses to operate a public service of this nature are fully qualified to do so and it is neither reasonable nor proper to compel it to issue a permit to any person who chooses to apply.”
4. In my judgment these observations are obiter and do not lay down that an application can be rejected on grounds which do not come within the purview of Sec. 47 even though there were vacancies. A person has a fundamental right to carry on the business of plying buses and any restriction placed on such a right can only be justified if it comes within the purview of Art. 19(6) of the Constitution. The reasonable restriction placed on the rights of a bus-owner to carry on his business is to be found in Sec. 47 and the ground on which a petition can be rejected is to be found within the ambit of Sec. 47. It is not open to the Regional Transport Authority, therefore, to go beyond the scope of Sec. 47 in rejecting an application. In the case of Moti Lal v. The Government of the State of Uttar Pradesh A.I.R 1951 All. 257. it was held by a Full Bench of this Court that the conditions for the grant or refusal of permits are to be found in Sec. 47 and the discretion of the Regional Transport Authority in granting or refusing a permit is to be exercised in accordance with the provisions of Sec. 47. In that case, during the pendency of the applications for the renewal of permanent permits, the State Government decided to run State buses on certain routes. As the scheme had not fully come into operation, a direction was issued to the Regional Transport Authorities to grant only temporary permits to the bus-operators who had applied for a renewal of their permits and they had been granted temporary permits. Petitions were filed in this Court challenging the orders granting temporary permits and it was held by this Court that the temporary permits were granted on grounds which were not covered by the provisions of Sec. 62. It was held that the ground that the State Government had in contemplation a scheme under which the State would run its buses could not be regarded as a valid ground for granting temporary permits under Sec. 62 of the Motor Vehicles Act. If the effect of granting temporary permits could be treated to amount to refusal of the renewal of permanent permits, this was not a valid ground under Sec. 47 of the Act which would justify the refusal of the renewal of a permanent permit. It was, therefore, held that the applications for the renewal of the permits would be deemed to be pending and a writ of mandamus was issued directing the Regional Transport Authorities to consider the applications for the renewal of permits in accordance with the provisions of the Act. It cannot, therefore, be argued that Sec. 47 gives an unfettered discretion to the Regional Transport Authorities to grant or refuse permits. Any unfettered discretion to grant or refuse a permit would make such a law invalid under the provisions of Arts. 13 and 19 of the Constitution. It is, therefore, obvious that the discretion is not unfettered and in exercising its discretion the Authority is to be guided by the provisions of Sec. 47 of the Motor Vehicles Act. Any exercise of discretion which goes beyond the provisions of Sec. 47 will be ultra-vires and liable to be set aside by this Court in the exercise of its powers under Art. 226 of the Constitution. As I have already observed in cases where there are a number of applicants and vacancies are less than the number of applicants, in making the selection, it may not be regarded as an arbitrary exercise of discretion if the respective merits of the various applicants are considered but the fact that the applicant is a new comer and he is not displaced person is no ground for rejecting the application though the Regional Transport Authority is not called upon to make a selection. In my opinion, therefore, the order of the Regional Transport Authority rejecting the petition is without jurisdiction and is liable to be quashed.
5. It was contended by the State Counsel that an alternative remedy was available to the petitioner inasmuch as he could have gone up in appeal to the State Transport Authority against the order of the Regional Transport Authority and in these circumstances this Court will not exercise its discretion in favour of the petitioner. Ordinarily this Court will not exercise its discretion under Art. 226 of the Constitution if another alternative remedy is available but, in the circumstances of the present case, it cannot be said that the alternative remedy would have been adequate. The petitioner's application had already been rejected once on the ground that there was no vacancy. The order of the Appellate Authority was also set aside by this Court. In spite of the directions issued by this Court the application remained pending for some time and ultimately it has again been rejected on a ground which is beyond the provisions of Sec. 47. In these circumstances if the petitioner is allowed to wait till the decision of the Appellate Authority, he may be considerably prejudiced and it cannot be said that the alternative remedy was equally adequate.
6. The next question then to be considered is what is the relief to which the petitioner is entitled in the circumstances of the case. It has been strongly contended by the Standing Counsel that this Court in exercise of its powers under Art. 226 of the Constitution is not acting as an appellate court and it cannot substitute its order to the order of the Regional Transport Authority to grant a permit. The only relief which can be granted by this Court is to set aside the order passed by the Regional Transport Authority and then to leave the matter to the Regional Transport Authority to deal with the application, in accordance with law. The powers granted to this Court under Art. 226 of the Constitution are wide. Article 226 of the Constitution gives power to this Court throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. The power is not confined to the issue of writs mentioned therein but any order or direction can be issued under this Article for the enforcement of fundamental rights or for the enforcement of any other right. In suitable cases, therefore, it cannot be said that this Court cannot issue a direction to the Regional Transport Authority to grant a permit. Apart from Art. 226 of the Constitution after having quashed the order of the Regional Transport Authority under Art. 226 of the Constitution, it is open to this Court to issue a direction under Art. 227 of the Constitution directing the Regional Transport Authority to grant a permit to the petitioner. In the case of Hari Vishnu Kamath v. Syed Ahmad Ishaque 1955 S.C.R 1104.. It was observed by the Supreme Court at page 1120 as follows:—
“We are also of opinion that the Election Tribunal are subject to the superintendence of the High Courts under Art. 227 of the Constitution, and that superintendence is both judicial and administrative……It may also be noted that while in a certiorari under Art. 226 the High Court can only annul the decision of the Tribunal, it can, under Art. 227, do that, and also issue further directions in the matter.”
7. In a recent case of this Court—Kr. Sri Tri Vikram Narain Singh v. State of Uttar Pradesh (Writ No. 464 of 1954)—the State Government had stopped the payment of certain pension to the petitioner and a direction was issued by this Court restraining the opposite party, the State of Uttar Pradesh from withholding the payment of the amount of pension. In effect it was a direction to the State Government to pay the amount to the petitioner. In my opinion, therefore, there is no bar for this Court to issue a direction, in the circumstances of this case to the Regional Transport Authority to grant a permit to the petitioner.
8. I, therefore, allow this petition with costs, quash the order of the Regional Transport Authority dated 18th October, 1955 and direct the Regional Transport Authority to grant the permit to the petitioner.
9. Petition Allowed.
Alert