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Messrs. Satya Naraya... v. Secretary, State Tra...
Factual and Procedural Background
The petitioner is a private limited company (incorporated 29 May 1949) carrying on stage carriage services on routes including Tamluk Norghat and Tamluk Kalinagar under permits issued under the Motor Vehicles Act, 1939. Following public invitations for applications for two stage carriage permits for the Norghat-Kalinagar route, the Regional Transport Authority (RTA), Midnapore resolved on 25 February 1954 to grant one permit to the petitioner and another to Jagatdhatri Transport Ltd. A permit valid to 24 February 1957 was granted to the petitioner on 15 March 1954.
Kalinagar Bus Association (respondent No. 6) appealed the RTA resolution to the State Transport Authority. On 16 August 1954 the Appellate Sub-Committee set aside the RTA order and directed the RTA to dispose of the matter in due compliance with the Motor Vehicles Act and Rules. The RTA thereafter invited fresh applications (notice 14 February 1955) and, after hearings, passed an order on 6 January 1956 granting one permit to Bankim Chandra Samanta (respondent No. 5) and the other to Jagatdhatri Motor Transport Company. The petitioner alleged that the RTA's 6 January 1956 order: (a) was influenced by extraneous factors (the selected applicant being a "political sufferer"), and (b) failed to comply with Section 57(7) of the Motor Vehicles Act by not giving individualised reasons.
The petitioner appealed the RTA order under Section 64(a) to the State Transport Authority. The Appellate Sub-Committee on 21 May 1956 set aside the RTA's grant to Jagatdhatri Motor Transport Ltd. but upheld the grant to Bankim Chandra Samanta, citing Rule 57A of the B.M.V. Rules, 1940 (preference to non-permit-holders when other conditions are equal).
The petitioner sued under Article 226 of the Constitution for certiorari and prohibition to quash both the RTA order dated 6 January 1956 and the Appellate Sub-Committee order dated 21 May 1956. A Rule nisi was issued on 1 June 1956 and an interim injunction (later modified) restrained respondents from giving effect to the permit order and restrained permit holders from plying buses on that permit.
Legal Issues Presented
- Whether the Regional Transport Authority acted in excess of its jurisdiction by taking extraneous and irrelevant considerations (specifically, the applicant being a "political sufferer") into account when granting a stage carriage permit, thereby vitiating the order dated 6 January 1956.
- Whether Section 47 of the Motor Vehicles Act, 1939 is exhaustive of matters that an RTA may consider when deciding to grant or refuse stage carriage permits, or whether the RTA may consider other allied/germane matters.
- Whether the Appellate Sub-Committee misapplied Rule 57A of the B.M.V. Rules, 1940 by assuming "other conditions were equal" between a permit-holder applicant and a non-permit-holder without adequate consideration of whether conditions were in fact equal.
- Whether petitioner is precluded from raising certain objections (extraneous consideration and non-compliance with Section 57(7)) in Article 226 proceedings because those points were not, or were not clearly, raised before the Appellate Sub-Committee or because an alternative statutory remedy (appeal under Section 64) was pursued.
- Whether Rule 57A of the Motor Vehicles Rules is ultra vires Article 14 of the Constitution by creating an impermissible classification.
- Whether the invitation of fresh applications by the RTA (after earlier RTA order had been set aside by the Appellate Sub-Committee) was without jurisdiction and rendered subsequent proceedings nullities.
- Whether surrender of the petitioner's permit (September 1955) was valid in the circumstances, and whether the petitioner retained any enforceable permit after the earlier 1954 order had been set aside.
Arguments of the Parties
Petitioner's Arguments (as presented by Mr. Arun Kumar Dutt)
- The RTA's order dated 6 January 1956 is bad because the RTA took into consideration extraneous and irrelevant matters (not germane to the statutory scheme), notably the fact that the successful applicant (respondent No. 5) was a "political sufferer" in need of provisions.
- The RTA is a creature of statute; its powers are circumscribed by the Motor Vehicles Act and it can consider only matters specified by the statute (invoking Section 44 and Section 47 of the Act, and the listed clauses in Section 47).
- Reliance on precedent (Onkar-mal Mistri v. Regional Transport Authority, Darjeeling) to show that consideration of refugees/political sufferers vitiated the RTA's decision as an extraneous consideration.
- The RTA's reasons for refusal did not comply with Section 57(7) of the Act because reasons were given “in a rolled up manner” for groups of applications, not individually, preventing an applicant from knowing the specific ground of rejection.
- The Appellate Sub-Committee misapplied Rule 57A by mechanically applying the rule and assuming that "other conditions were equal" between the petitioner and respondent No. 5 without properly examining whether conditions were indeed equal.
- Rule 57A is constitutionally objectionable as violating Article 14 because it provides a preference that is discriminatory on its face.
- The surrender order of September 1955 (requiring surrender of the permit) was invalid and not in accordance with Sections 58 and 60 of the Motor Vehicles Rules and the Motor Vehicles Act.
Respondents' Arguments (as reflected in affidavits and submissions)
- Respondents (represented in part by Mr. Majumdar and by respondents Nos. 3 and 4 via affidavit) argued that even if one stated reason (political sufferer) was extraneous, the RTA had given multiple reasons and the order would stand if other reasons legitimately supported the grant; courts have held that where numerous grounds are given it may be impossible to determine the influence of any single bad ground (referenced Keshav Talpade principle).
- Reference was made to Dwarka Das Bhatia v. State of Jammu & Kashmir (Supreme Court) to show that where subjective satisfaction is based on multiple grounds, invalidity can follow if some grounds are non-existent or irrelevant; respondents sought to distinguish the present case on the available material.
- It was submitted that the petitioner, having appealed under Section 64, and pursued the statutory remedy, should not, as a general rule, be allowed to challenge the original RTA order under Article 226 (invoking the Kanai Lal Sethi principle).
- Mr. Purnendu Sekhar Bose (for respondent No. 5) stated that, to his recollection, the particular objection (extraneous consideration) was not argued before the Appellate Authority; the Appellate Sub-Committee's order does not indicate that the point was taken.
- On the constitutional challenge to Rule 57A, respondents argued (and the Court accepted) that Rule 57A effects a classification between permit-holders and non-permit-holders with the objective of preventing monopoly and distributing business, which is a reasonable classification and not void under Article 14.
- With respect to the RTA inviting fresh applications after the Appellate Sub-Committee set aside the earlier order, respondents contended (and the Court found) that the RTA could legitimately start proceedings de novo; the petitioner participated by submitting a fresh application and thereby submitted to the RTA's jurisdiction.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Onkar-mal Mistri v. Regional Transport Authority, Darjeeling (60 C.W.N 13) | Held that consideration by RTA of applicants being refugees or political sufferers was an extraneous/irrelevant consideration that vitiated the decision. | The Court considered this authority supportive of the petitioner's contention that extraneous considerations vitiate an RTA decision, but distinguished its applicability after evaluating Section 47's scope and other authorities. |
| Dholpur Cooperative Transport & Multipurpose Union Ltd. v. Appellate Authority, Rajasthan [A.I.R. 1955 Rajasthan 19] | Expressed the view (Wanchoo C.J.) that Section 47's conditions are not necessarily exhaustive and other allied matters may be considered. | The Court relied on this reasoning to conclude Section 47 is not exhaustive and that RTA may consider allied/germane matters (subject to excluding extraneous considerations). |
| Ryots of Garabandho & other villagers v. Zemindar of Parlakimedi (L.R. 70 I.A. 129) | Explained the ordinary meaning of the words "have regard to" — that specified provisions must be taken into consideration but not to the exclusion of other considerations. | The Court cited this Privy Council decision to interpret "shall have regard to" in Section 47 as non-exhaustive. |
| Valluri Narasingha Rao v. Ryots of Peddamidipalli (High Court decision referenced) | Support to the interpretation that "have regard to" requires taking specified provisions into account but is not strictly binding in the exclusive sense. | Cited by the Court (via Ryots of Garabandho passage) to support non-exhaustive reading of statutory direction to "have regard to". |
| Province of Bengal v. Pran Kissen Law & Co. (54 C.W.N 801) | Construction of "shall have regard to" in a statutory context — the provision must be considered but arbitrator not strictly bound. | Relied upon to support the view that Section 47 requires consideration of its matters but does not strictly confine the authority to those matters alone. |
| M. Rameyya v. The State of Madras [A.I.R. 1952 Mad. 300] | Interpreted Section 47 of the Motor Vehicles Act as not inhibiting consideration of matters other than those specified; specified matters must not be left out. | The Court adopted this interpretation as further support for the non-exhaustive reading of Section 47. |
| Yagsen Ram Prashad Khewat v. Chief Commissioner, Ajmer [A.I.R. 1956 Ajmer 41] (referred) | Followed the Rajasthan High Court view regarding Section 47's scope. | Cited as additional authority supporting the non-exhaustive interpretation of Section 47. |
| Rex v. Board of Education [(1910) 2 K.B. 165] | English authority stating that tribunals must exercise discretion bona fide and not be influenced by extraneous or irrelevant considerations; courts will prevent usurpation of jurisdiction caused by extraneous considerations. | Used to support the proposition that statutory bodies acting on extraneous considerations act in excess of jurisdiction and such acts are amenable to judicial review. |
| Keshav Talpade v. The King Emperor (47 C.W.N (F.R) 13) | Illustrates that when multiple reasons are given and some are bad, it is uncertain to what extent bad reasons influenced the authority; the presence of bad reasons can vitiate the order. | The Court cited this principle to explain why an order based partly on extraneous reasons may be held invalid when it cannot be objectively ascertained whether bad reasons dominated. |
| Dwarka Das Bhatia v. State of Jammu & Kashmir [A.I.R. 1957 S.C. 164] | Summarised the principle that where subjective satisfaction rests on several grounds, if some are non-existent or irrelevant the exercise of power may be bad because subjective satisfaction must be properly based on the reasons stated. | The Court relied on this summary to analyse whether the RTA's stated reasons (including alleged extraneous ones) invalidated the RTA order; it observed that the material before the Court did not permit a finding that the extraneous reason was of an unessential nature. |
| Gandhinagar Motor Transport Society v. The State of Bombay [A.I.R. 1954 Bom. 202] | Held that a party's conduct may preclude it from claiming certiorari; if a point could have been raised before the original tribunal but was not, the party may be disentitled to relief in writ proceedings. | The Court applied this principle to consider whether the petitioner was precluded from raising certain grounds in Article 226 proceedings because they were not, or not clearly, raised before the Appellate Sub-Committee. |
| Harihar Tewari v. State [A.I.R. 1952 All. 489] | Applied the principle that conduct of applicants may disentitle them to relief by way of certiorari if they omitted to raise available points before the original tribunal. | Referenced as part of the body of authority supporting the preclusion doctrine applied by the Court. |
| V.M. Syed Mohamed v. State of Madras [A.I.R. 1953 Mad. 105] | Similar application of the doctrine that a party may be precluded from relief in certiorari if points were not raised earlier. | Referenced by the Court in assessing whether petitioner should be permitted to raise objections not taken before the Appellate Sub-Committee. |
| Kanai Lal Sethi v. Collector of Land Customs, Calcutta (60 C.W.N 1042) | Proposition that a person who has availed himself of the ordinary remedies under a special Act cannot thereafter challenge the original order under Article 226; where an appellate court's order contains an error apparent on face of record, Article 226 may be available against that appellate order. | The Court treated this decision as binding and applied its principle in deciding the petitioner's locus to challenge the RTA order after pursuing statutory appeal remedies. |
| Nalini Ranjan Guha v. Annada Sankar Roy (56 C.W.N 73) | Collected and discussed relevant cases on writ jurisdiction and related principles. | Used by the Court as a reference point for principles applicable to certiorari and alternative remedies. |
| The United Fruit Co. Ltd., Shillong v. The Sree Lakshmi Transport Co. Ltd. (48 C.W.N 142) | Referenced in connection with submission on surrender/cancellation of permits under Motor Vehicles Act and Rules. | Referred to by petitioner; Court considered the point and observed that when an earlier permit-granting order is set aside, the permit ceases to be operative and surrender was appropriate in the circumstances. |
| Anwar Ali's case [A.I.R. 1952 S.C. 75] | Authority on Article 14 and the limits of classification and discrimination under the Constitution. | Cited in the challenge to Rule 57A; the Court used constitutional jurisprudence to analyse whether Rule 57A's classification was permissible and held the Rule not void under Article 14. |
| V.G. Row Petitioner v. The State of Madras [A.I.R. 1951 Mad. 147] | Authority concerning Article 14 and discrimination/class legislation. | Referenced as part of the authorities considered in evaluating the constitutional challenge to Rule 57A; Court concluded Rule 57A was a reasonable classification. |
| Sheo-sankar v. State Govt. of Madhya Pradesh [A.I.R. 1951 Nagpur 58] | Addressed issues of classification under Article 14. | Referenced among authorities considered in determining the validity of Rule 57A. |
| C.S.S. Motor Service v. State of Madras [A.I.R. 1953 Mad. 279] | Discussed principles relevant to Article 14 and regulatory classification. | Referenced in the argument about the constitutionality of Rule 57A; Court relied on the reasoning that classifications between dissimilar groups are permissible. |
| Shri Kishan Singh v. The State of Rajasthan [(1956) S.C.A. 402] | Authority indicating Article 14 prohibits unequal treatment of persons similarly situated and recognizes permissible class legislation. | Cited in the Court's reasoning that Rule 57A discriminates between permit-holders and non-permit-holders (not similarly situated) and is therefore permissible. |
| Balsara's case [A.I.R. 1951 S.C. 1018] | Authority on permissible classification under Article 14. | Referred to support the conclusion that Rule 57A is not void under Article 14 as it rests on a reasonable/objective basis (preventing monopoly, distributing business). |
Court's Reasoning and Analysis
The Court's analysis proceeded along several interlinked lines:
- Interpretation of Section 47 (Motor Vehicles Act). The Court examined the phrase "shall have regard to" in Section 47 and, drawing on Privy Council and Indian High Court authority, concluded that Section 47 is not exhaustive. The statutory requirement is to take the matters specified into account; it does not confine the RTA to those matters alone. (Citations: Ryots of Garabandho, Province of Bengal v. Pran Kissen Law & Co., M. Rameyya and others.)
- Extraneous considerations and jurisdiction. Although Section 47 is non-exhaustive, the Court emphasised that a statutory body cannot act on extraneous or irrelevant considerations. English and Indian authorities (e.g., Rex v. Board of Education and subsequent cases) establish that if a statutory authority is actuated by extraneous considerations in exercising statutory powers, that act is in excess of jurisdiction and subject to quashing.
- Application of the above to the RTA's order of 6 January 1956. The Court found the fact that the RTA had explicitly recorded a ground that respondent No. 5 was a "political sufferer" and in need of provision to be a matter foreign to the statutory scheme and therefore extraneous. The Court held that it was impossible from the record to determine to what extent this extraneous consideration influenced the RTA's decision among the eight reasons given; consequently the decision had to be treated as invalid because the influence of the extraneous reason could not be objectively assessed (drawing on Keshav Talpade and Dwarka Das Bhatia principles).
- Adequacy of reasons under Section 57(7). The Court found the RTA's reasons for refusal were "rolled up" and not individualized as required by Section 57(7) (i.e., the reasons jumbled together for a group of applications), thereby frustrating an applicant's ability to identify the particular reasons applied to his case and to prefer a meaningful appeal.
- Preclusion to raise new points in Article 226 proceedings. The Court noted that the petitioner did not clearly challenge the RTA order on the grounds of extraneous consideration or non-compliance with Section 57(7) before the Appellate Sub-Committee. The Court applied the preclusion principle (Gandhinagar Motor Transport Society and related authorities) and observed that ordinarily a party should not be allowed to raise points in writ proceedings that were not advanced before the tribunal whose order is challenged. The Court expressed some doubt whether the petitioner actually pressed these points before the Appellate Sub-Committee, leaning towards the view that it had not.
- Whether the Appellate Sub-Committee erred. On the merits of the Appellate Sub-Committee's order, the Court found that the Sub-Committee had mechanically applied Rule 57A, assuming "other conditions were equal" between the petitioner (a permit-holder) and respondent No. 5 (a non-permit-holder), without adequate consideration of whether conditions were in fact equal. The Court concluded that the Appellate Sub-Committee had misapplied Rule 57A to the facts.
- Constitutionality of Rule 57A. The Court addressed the petitioner's contention that Rule 57A violated Article 14. After considering Supreme Court and High Court authorities on permissible classification, the Court held Rule 57A to be a reasonable classification (aimed at preventing monopoly and distributing business) affecting dissimilar classes (permit-holders and non-permit-holders) and therefore not void under Article 14.
- Invitation of fresh applications and surrender of permits. The Court considered the RTA's decision to invite fresh applications after the earlier RTA order had been set aside by the Appellate Sub-Committee and found that the RTA could legitimately start proceedings de novo. The Court also observed that where an earlier granting order is set aside, the permit granted under that order ceases to be effective and surrender of the permit in that context was appropriate and not equated to cancellation under Section 60.
- Relief to be granted. Because the Court found both (a) the RTA order of 6 January 1956 to be on its face illegal (for extraneous consideration and defective reasons) and (b) the Appellate Sub-Committee had misapplied Rule 57A, the Court concluded that quashing only the Appellate Sub-Committee's order would be ineffective. Therefore, the Court decided to quash both the RTA order of 6 January 1956 and the Appellate Sub-Committee order of 21 May 1956.
Holding and Implications
Holding:
Both the orders dated 6 January, 1956 (Regional Transport Authority) and 21 May, 1956 (Appellate Sub-Committee of the State Transport Authority, West Bengal) are quashed; a writ in the nature of Certiorari will be issued quashing those orders.
Immediate consequences and directions:
- The Rule nisi was made absolute and the two orders specified in the petition (6 January 1956 and 21 May 1956) were quashed.
- There will be no order as to costs.
- The operation of the Court's order is stayed for six weeks from date; during that period respondent No. 5 may prefer an appeal against the Court's order if he so desires.
- The Court held that Rule 57A of the Motor Vehicles Rules is not void under Article 14 of the Constitution (i.e., the Rule was upheld as constitutionally valid on the reasoning recorded).
Broader implications: The Court applied established principles of administrative law concerning extraneous considerations, the meaning of "have regard to" in statutory directions, the consequences of lumped reasons vis-à-vis Section 57(7), and the limits on raising points in Article 226 writs when parties have pursued statutory appeals. The opinion did not purport to lay down a novel legal doctrine but applied and reconciled existing authorities to the facts of this case.
The judgment of the Court was as follows:
Bose, J.:— This is an application under Article 226 of the Constitution for writs in the nature of Certiorari and Prohibition for quashing of an order made by the Appellate Subcommittee of the State Transport Authority, West Bengal, dated the 21st. May, 1956, modifying an order of the Regional Transport Authority, dated the 6th January, 1956 in respect of grant of certain stage carriage permits under the provisions of the Motor Vehicles Act, 1939 and also for prohibiting the respondents from giving effect to the said order.
1. The case of the petitioner is that the petitioner is a Private Limited Company registered under the Indian Companies Act. There are three members of the Company who are brothers, viz., Hari Charan Metia, who is a Driver Mechanic, Sushil Chandra Metia, who is also a Driver Mechanic and Bankim Chandra Metia, who is the managing Director of the said Company. Since the incorporation of the Company on the 29th May, 1949 the petitioner has been plying stage carriages on permits granted under the provisions of the Motor Vehicles Act in different routes on Tamluk Norghat and Tamluk Terapokhia. Pursuant to a notice dated the 28th March, 1953 published in the local weekly paper ‘Pradip’ applications were invited from Companies and from Cooperative Societies for two stage carriage permits for Ncrghat Kalinagar route. Such applications were to be submitted by the 15th April, 1953. On 20th April, 1953 a notice dated the 18th April, 1953 was published in the said weekly paper ‘Prodip’ intimating that applications from twenty two concerns for two stage carriages had been received by the office of the Regional Transport Authority and by the said notice representations were also invited under Section 57 of the Motor Vehicles Act, 1939. The petitioner Company submitted one application for stage carriage permit and Kalinagar Bus Association, the respondent No. 6 in this application, submitted two applications. On the 25th February, 1954 the Regional Transport Authority, Midnapore, at a meeting resolved to grant one stage carriage permit in favour of the petitioner Company and the other to Messrs. Jagatdhatri Transport Ltd. As these were according to the Regional Transport Authority the most suitable candidates for getting the permits the resolution was to grant stage carriage permits for a period of three years. On 15th March, 1954 a stage carriage permit valid up to 24th February, 1957 was granted in favour of the petitioner Company for plying a stage carriage on the Kalinagar Norghat route. The respondent No. 6, Kalinagar Bus Association, thereafter preferred an appeal against the order of the Regional Transport Authority dated the 25th February, 1954 to the State Transport Authority, West Bengal. On 16th August, 1954 the Chairman of the Appellate Sub-Committee of the State Transport Authority passed the following order:
“The Sub-Committee perused the record and heard the learned Advocates of the appellant and respondents. The Sub-Committee found that the Regional Transport Authority, Midnapore, have not recorded any reason or grounds for rejecting the application of the appellant either in the minutes of the meeting or in the report to the Committee and had not complied with the provisions of Section 57 (7) of the Motor Vehicles Act. In view of the above circumstances, the Sub-com-mittee set aside the order appealed against and directed Sub-Committee to set aside the order appealed against and directed the Regional Transport Authority to dispose of the matter in due compliance with the provisions of the Motor Vehicles Act and the Rules framed thereunder.
2. It appears that thereafter the Regional Transport Authority invited new applications for the grant of permit in Norghat-Kalinagar route. Such invitation was made by a notice dated the 14th February, 1955 which was published in the said weekly paper ‘Pradip’. On 28th March, 1955 another notice was published in the said weekly paper inviting representation under Section 57 of the Motor Vehicles Act and intimating that fifty two applications had been received from different persons and concerns. It is to be noted that although fresh applications were being invited by the Regional Transport Authority the petitioner was allowed to ply the bus on the Norghat Kalinagar route until about the 17th September, 1955 when the petitioner Company was asked to surrender the permits issued pursuant to the order dated the 24th February, 1954 for cancellation of the same. The petitioner Company, however, surrendered only Part A of the permit which is carried by the holder of the permit but did not surrender Part B of the permit which is carried on the vehicle. The petitioner still retains Part B of the permit and it further appears that the Regional Transport Authority granted temporary permits to the petitioner in the meantime for plying the stage carriage for the convenience of the public. The new applications for stage carriage permits which had been invited by the Regional Transport Authority were heard and considered by the Regional Transport Authority on the 11th November, 1955 and the Regional Transport Authority fixed 3rd. December, 1955 for passing orders on such applications. In fact, however, no order was made on the 3rd December, 1955 and the matter was postponed from time to time till 6th January, 1956 when an order was made granting the application of Sri Bankim Chandra Samanta, who is respondent No. 5 in this application, as it appeared to the Regional Transport Authority that the said Mr. Samanta was the most fit to be granted such permit. The other permit was granted in favour of Jagatdhatri Motor Transport Company. It is alleged in the petition that the said order is an invalid one, inasmuch as the permit which was granted in favour of Bankim Chandra Samanta was granted on the extraneous consideration that the said applicant was a political sufferer and was badly in need of some provisions. It is further alleged that the said order is also bad inasmuch as it does not set out the reasons for rejecting the applications of other candidates as contemplated by Section 57 (7) of the Motor Vehicles Act. The petitioner Company preferred an appeal against the order of the Regional Transport Authority dated the 6th January, 1956 under Section 64(a) of the Motor Vehicles Act to the State Transport Authority, Government of West Bengal. On the 27th February, 1956 the State Transport Authority intimated to the Chairman of the Regional Transport Authority of the fact of the filing of the appeal before the Appellate Sub-Committee and the State Transport Authority also directed the stay of the operation of the order made by the Regional Transport Authority on the 6th January, 1956 On the 27th April, 1956 the Appellate Sub Committee of the State Transport Authority heard the said appeal preferred by the petitioner Company and on the 21st. May, 1956 the Chairman of the Appellate Sub-committee signed an order whereby the order in so far as it related to the grant of permit in favour of the Jagatdhatri Motor Transport Ltd., was set aside but the order made in favour of Bankim Chandra Samanta by the Regional Transport Authority on the 6th January, 1956 was upheld. The said order is as follows:— “The Sub-Committee heard the appellants and perused the records. The Opposite party, Sri Bankim Chandra Samanta was present and heard but the other opposite party, Messrs. Jagatdhatri Motor Transport Co. Ltd. was unrepresented, although duly notified. The appellants admitted before the Sub-committee that they already held two permits for stage carriages. The Sub-Committee also found that the Opposite party No. 1 Messrs Jagatdhatri Motor Transport Co. Ltd. also held one permit for a stage carriage on Panskura Nor-ghat route. According to Rules 57A of the B.M.V Rules, 1940, when applications for a permit in respect of a stage carriage have been received from a person holding one or more permits and from a person having no such permit, other conditions being equal, preference shall be given to the latter. The Sub-Committee found that the R.T.A Midnapore had not taken into consideration the above rule. The Sub-Committee therefore set aside the order of the R.T.A so far as it related to the grant of a permit to Messrs. Jagatdhatri Motor Transport Co. Ltd. The Sub-committee directed the R.T.A, Midnapore to make their selection for the second permit from the applications already received in this regard; keeping in view the provisions of Rule 57A of the B.M.V Rules, 1940. Sd. J.N Talukdar, 21.5.56”.
3. The petitioner Company thereupon moved this Court under Article 226 of the Constitution and obtained a Rule nisi on 1st. June, 1956. The Rule so obtained directed the respondents to show cause why a writ in the nature of Certiorari should not issue for quashing and|or setting aside the proceedings and the orders passed on the 6th January, 1956 and 21st, May, 1956 mentioned in the petition. An interim injunction was also issued restraining the respondents from giving effect to the order issuing the permit and also restraining the permit-holders from plying the buses on the strength of the permit issued by the Regional Transport Authority in their favour. Subsequently, on the 17th July, 1956, the said interim injunction was modified in certain respects. An affidavit in opposition has been filed on behalf of respondents Nos. 3 and 4 and the respondent No. 5 has filed a separate affidavit adopting the statements of fact made in this affidavit filed on behalf of respondents 3 and 4 and also stating therein certain additional facts. Mr. Arun Kumar Dutt, the learned Advocate appearing for the petitioner company, has argued that the order of the Regional Transport Authority dated the 6th of January, 1956 is bad because in making the order the Regional Transport Authority has taken into consideration extraneous and irrelevant matters not germane to the subject. It is pointed out that one of the reasons for selecting Bankim Chandra Samanta, the Respondent No. 5, as a suitable candidate for granting the permit is that he is a political sufferer and is now badly in need of some such provisions. It is submitted that the Regional Transport Authority being a creature of statute its powers are circumscribed by the provisions of the statute and the Regional Transport Authority has therefore no power to travel beyond the provisions of the Motor Vehicles Act 1939. Reference is made to section 44 of the Act to show that the Regional Transport Authority is to exercise and discharge the powers and functions conferred by or under this Chapter on such Authority. The Chapter referred to is Chapter IV of the Motor Vehicles Act. Section 47 of the Act provides that in deciding whether to grant or refuse a stage carriage permit, a Regional Transport Authority shall have regard to the matters specified in clauses (a), (b), (c), (d), (e) and (f) of that section. Mr. Dutt has urged that the Regional Transport Authority in granting or refusing stage carriage permit can take into consideration only the matters specified in this section and no other matter. In support of this argument reliance is placed on a decision of Sinha, J. reported in 60 C.W.N 13 (Onkar-mal Mistri v. Regional Transport Authority, Darjeeling) (1). In this case it was held by Sinha, J. that consideration by the Regional Transport Authority of the fact that the applicants for permits in that case were refugees or political sufferers and|or were deserving candidates to whom permits should be granted, vitiated the decision of the Regional Transport Authority as this was an extraneous or irrelevant consideration. Sinha, J. was also unable to accept the argument of the Regional Transport Authority which was advanced in that case to the effect that section 47 of the Motor Vehicles Act was not exhaustive and the learned Judge also differed from the view taken by the Rajasthan High Court as expressed in the case reported in A.I.R (1955) Rajasthan, 19 at 27 (Dholpur Cooperative Transport and Multipurpose Union Ltd. v. Appellate Authority Rajashan) (2). Wanchoo C.J who delivered the judgment made the following observation:
“Section 47 lays down the general conditions regard will be paid to which in granting or refusing a stage carriage permit. These conditions are not necessarily exhaustive in details and not deciding between one applicant and another. A Regional Transport Authority or the Appellate Authority may well consider other allied matters.”
4. It appears to me that the words “shall have regard to” in section 47 imply that the section is not exhaustive. The requirement of the section is that the matters specified in the section must be taken into consideration; in other words, the primary duty of the Regional Transport Authority is to take into consideration the matters specified. But it does not follow that the hands of the Regional Transport Authority are tied to the consideration of these matters alone and they must shut their eyes to everything else.
5. The Privy Council in the case of Ryots of Garabandho & other villagers v. Zemindar of Parlakimedi (3) (L.R 70 I.A 129), has explained the implication of the words “having regard to” in the following terms: “The view taken by the majority of the Collective Board of Revenue in making the order dated October 19, 1936, which is now complained of is that the requirement to “have regard to” the provisions in question has no more definite or technical meaning than that of ordinary usage, and only requires that these provisions must be taken into consideration………….. This view to the effect of the direction have regard to the provisions of the Act for determining rates of rent payable by a Ryot is supported by the decision of the High Court in Valluri Narasingha Rao v. Ryots of Peddamidipalli. Their Lordships find themselves in this matter in agreement with the view taken by the majority of the Collective Board (pp. 168-169).”
6. This Court in the case of the Province of Bengal v. Pran Kissen Law & Co. (4) 54 C.W.N 801, in construing the expression “shall have regard to the provisions of Section 23(1) of the Land Acquisition Act” as used in Section 19(1) (e) of the Defence of India Act has observed as follows: “This requirement only implies that the provisions of the Land Acquisition Act must be taken into consideration. It does not mean that the Arbitrator is strictly bound by the terms of Section 23(1) of the Land Acquisition Act.”
7. The Madras High Court in the case of M. Rameyya v. The State of Madras (5) [A.I.R 1952 Mad. 300]. has also adopted this interpretation in construing this very section 47 of the Motor Vehicles Act. It was held in this case that there is no inhibition against the taking into consideration all matters other than the consideration specified in the Section. All that the direction necessitates is that the matters specified should not be left out of account. Govind Menon J. who delivered the judgment in that case relied on some of the earlier decisions of the Madras High Court and also on the decision of the Judicial Committee as reported in 70 I.A 129. The Rajas-than High Court as pointed already has also taken the same view about section 47 in (2) A.I.R (1955) Rajasthan, 19. The Ajmer High Court has also followed Rajasthan High Court in the case reported in A.I.R (1956) Ajmer, 41 (Paragraph 23 of the Judgment— Yagsen Ram Prashad Khewat v. Chief Commissioner, Ajmer (6).
8. In view of these decisions I am inclined to hold that section 47 of the Motor Vehicles Act is not exhaustive and the Regional Transport Authority can take into consideration other matters which are allied or germane to the question to be decided.
9. The next question is whether the fact that the Respondent No. 5 is a political sufferer and is badly in need of some provisions can be said to be a consideration which is germane to the question to be decided. I am unable to see how it can be so regarded. In my view, such matters are quite foreign to the subject under consideration and is a totally extraneous and irrelevant consideration. It has been held by the English Courts and the same view is also shared by the Courts in India that if a statutory body is actuated by any extraneous and irrelevant consi-deration in giving effect to the provisions of the statute under which such statutory body is created, then such an act will be regarded as one done in excess of jurisdiction. Reference may be made to the case of Rex v. Board of Education (7) [(1910) 2 K.B 165, 179]. Farwell L.J observed as follows: “If the tribunal has exercised the discretion entrusted to it bona fide, not influenced by extraneous or irrelevant consideration and not arbitrarily or illegally, the courts cannot interfere; they are not a court of appeal from the tribunal but they have power to prevent the intentional usurpation or mistaken assumption of a jurisdiction beyond that given to the tribunal by law and also the refusal of their true jurisdiction by the adoption of extraneous considerations in arriving at their conclusion or deciding a point other than that brought before them, in which cases the Courts have regarded them as declining jurisdiction. Such tribunal is not an autocrat free to act as it pleases but is an inferior tribunal subject to the jurisdiction which the court of King's Bench for centuries and the High Courts since the Judicature Acts have exercised over such tribunals.”
10. Mr. Majumdar has however pointed out that the Regional Transport Authority has given 8 reasons for granting permit in favour of respondents No. 5; so even if one of the reasons is extraneous, the decision or order of the Regional Transport Authority is not vitiated if any of the other reasons can be considered as cogent and can validly support the decision or order arrived at. It is to be noted however that there is nothing before the Court to show how far or to what extent this extraneous consideration as to the respondent No. 5 being a political sufferer and needs some provisions to be made in his favour had actually influenced the decisions of the Regional Transport Authority. Whether this fact dominated the mind of the Regional Transport Authority or not cannot be tested by any objective standard. It is possible that absence of this consideration might have led the Regional Transport Authority to decide in a different way notwithstanding that the other reasons mentioned by them as having bearing on the case of the respondent No. 5 were there. In the case of Keshav Talpade v. The King Emperor (8) (47 C.W.N (F.R) 13, at 23), Gwyer C.J… observed as follows: “If a detaining authority give four reasons for detaining a man, without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reasons had been before them.”
11. Mr. Majumdar has referred to a recent decision of the Supreme Court in the case of Dwarka Das Bhatia v. State Of Jammu & Kashmir (9) A.I.R (1957) S.C 164 in which reference was made to the observation in Keshav Talpade v. The King Emperor (8) (supra) quoted above and the Supreme Court summarised the principle in the following terms:
“The Principal underlying all these decisions is this. Where power is vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to specified matters, if that satisfaction is stated to be based on a number of grounds or for a variety of reasons all taken together, and if some out of them are found to be non-existent or irrelevant the very exercise of that power is bad. That is so because the matter being one for subjective satisfaction it must be properly based on all the reasons on which it purports to be based. If some out of them are found to be non-existent or irrelevant, the Court cannot predicate what the subjective satisfaction of the said authority would have been on the exclusion of those grounds or reasons. To uphold the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the objective standard of the Court for the subjective satisfaction of the statutory authority. In applying these principles however the court must be satisfied that the vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the appropriate authority. It is not merely because some ground or reason of a comparatively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid. The court while anxious to safeguard the personal liberty of the individual will not lightly interfere with such orders.”
12. In this case however the Supreme Court was unable to hold that the extraneous reasons were of an unessential nature and accordingly the Supreme Court set aside the order of detention as bad.
13. Mr. Majumdar has argued relying on the principle enunciated by the Supreme Court that the ground of the respondent No. 5 being a political sufferer is a reason of an unessential nature. As I have pointed out already it is not possible to come to such a conclusion from the materials which are before the court. If this consideration was of an unessential nature then it is difficult to see why such a ground was at all mentioned in the order itself. As I have pointed out already it is not possible to gauge as to how far this consideration had actuated the Regional Transport Authority in making a decision in favour of respondent No. 5 and in my view therefore the order of the Regional Transport Authority dated the 6th of January, 1956 must be held to be an invalid order based as it is on) extraneous consideration.
14. It is to be noted further that the reasons given in this order dated the 6th of January, 1956 for refusing the application of the petitioner company and other applicants for permits did not satisfy the requirement of Section 57(7) of the Act. The reasons are given in a rolled up manner in respect of a group of applications. The individual cases are not dealt with separately. In other words the reasons are jumbled together. An applicant is not in a position to ascertain as to which particular reasons have been applied to his case for rejecting his application and he is thus hampered in the matter of his preferring an appeal against the order under Section 64 of the Act not knowing which case he has to make before the Appellate Authority.
15. Although the order of the Regional Transport Authority suffers from these infirmities it appears that in the appeal which was preferred by the petitioner against this order of the Regional Transport Authority dated the 6th January, 1956 such order was not challenged on the ground of this extraneous consideration or on the ground of the reasons being lumped up together and not being in accordance with section 57(7) of the Motor Vehicles Act. Mr. Dutt has however suggested that the grounds, 3, 4 and 5 of the grounds set out in the petition of appeal before the Appellate Sub-Committee covered this ground of extraneous consideration and it is further stated by him that this ground was argued before the Appellate Authority. Mr. Purnendu Sekhar Bose who appeared on behalf of Respondent No. 5 and who also appeared before the Appellate Sub-Committee at the hearing of the appeal, has however stated that as far as he remembers no such point was argued before the Appellate Authority. The order of the Appellate Authority dated the 21st May, 1956, does not on the face of it show that any such point was agitated before the Appellate Authority. The order itself does not deal with any such ground or matter but it may be pointed out that the order passed by the Appellate Sub-Committee dated the 21st May, 1956 does not appear to be of an exhaustive nature. It rather gives the impression that it is of a scrappy nature not dealing methodically with the points which were argued before the said Sub-Committee. If no such ground of challenge was actually taken before the Appellate Sub-Committee it is clear that the petitioner should not be normally allowed to agitate such question in a proceeding under Article 226 of the Constitution. The law on the point appears to be fairly settled. In the case of Gandhinagar Motor Transport Society v. The State of Bombay (10) [A.I.R 1954 Bom. 202], it has been held that a party may by his conduct preclude himself from claiming a Writ of Certiorari ex debito justitae no matter the proceedings which he seeks to quash are void or voidable. If it is open to a party to raise a point before a Tribunal whose order is being challenged but such point is not raised at all before the Tribunal, the party should not be allowed to challenge the order by agitating the point in a proceeding for the issue of a Writ, In Halsbury's Laws of England Vol. 11, 3rd Edition, pages 140-141, paragraph 265, it is pointed out that an order for issue of a Writ of Certiorari will be granted ex debito justitae if the conduct of the party applying has not been such as to disentitle him to relief. The same principle has also been applied in the cases of Harihar Tewari v. State (11) [A.I.R 1952 All. 489] and V.M. Syed Mohamed v. State Of Madras (12) [A.I.R 1953 Mad. 105]. So, if the petitioner company did not really raise this point before the Appellate Authority (and I am inclined to hold though not without some doubt that it did not) the petitioner must be held on the principles enunciated in the cases referred to above, that it has precluded itself from attacking the order of the Regional Transport Authority dated the 6th January, 1956 on any of such grounds or points in this application under Article 226 of the Constitution.
16. It has also been argued by Mr. Majumdar that the petitioner having appealed from the order of the Regi onal Transport Authority under Section 64 of the Motor Vehicles Act and having courted an adverse order from the Appellate Authority cannot now proceed to attack the order of the Regional Transport Authority in these proceedings under Article 226 of the Constitution. The petitioner can only attack the order of the Appellate Authority dated the 21st May, 1956 and this Court can grant relief if the, court is satisfied that there is in such appellate order any error apparent on the face of it or the order is tainted with any illegality on the face of it. Reliance is placed on a decision of this Court reported in 60 C.W.N 1042 (Kanai Lal Sethi v. Collector of Land Customs, Calcutta) (15) where Chak-ravartti, C.J laid down the following proposition:
“It is quite true that the existence of an alternative remedy is not an absolute bar to a recourse to Article 226 of the Constitution, but this court has always held that if a party has availed himself of the ordinary remedies provided for by a special Act, he cannot thereafter turn round and begin once again from the bottom by challenging the original order under Article 226 of the Constitution…………. In my view, a person affected by an order against which certain remedies are provided by the ordinary law ought to make a choice at the initial point of time when be is free to go either way, namely either along the path chalked out in the Constitution or along the path chalked out in the relevant Act. If he makes his choice in favour of the remedies under the relevant Act and takes advantage of them up to the last, he cannot be allowed to return to the point at which he began Ms journey and begin it again in another direction; along the line laid down in the Constitution. That is the view which this Court has always held and to that view I would adhere. It must, however, be added that if the error or illegality occurred for the first time in the order of judgment of an appellate court and it is the appellate Court's decision which is challenged on that ground, an application for a Writ or order under Article 226 in respect of that decision shall lie.”
17. This authority is binding on me. It is also to be noted that in the case reported in (1) (60 C.W.N page 13) it was the order of the Regional Transport Authority alone which was challenged in an application under Article 226 of the Constitution. In that case no appeal had been preferred against the order of the Regional Transport Authority to the State Transport Authority.
18. So the further question that now arises for consideration is whether the petitioner has made out grounds for quashing the order of the Appellate Sub-Committee. Mr. Dutt has argued that the order of the Appellate Authority is bad on the face of it inasmuch as the Appellate Authority has obviously misunderstood and misapplied Rule 57A of the Motor Vehicles Rules to the facts and circumstances of the present case. It is pointed out that under Rule 57A the question of one applicant being a permit-holder and the other applicant being a non-permit-holder becomes relevant only when “the other conditions are equal”. The Appellate Authority has found that the Regional Transport Authority in making the order dated the 6th January, 1956 did not apply their mind or direct their attention to Rule 57A. Further the Appellate Authority has assumed that as between the petitioner and the applicant Bankim Chandra Samanta (respondent No. 5) the other conditions were equal although the Regional Transport Authority has given rolled up reasons in their orders and they have made specific mention of the ground of the respondent No. 5 being a political sufferer. It is clear that the petitioner company described as such. It is therefore argued by Mr. Dutt that the assumption of the fact that “other conditions were equal” is not warranted and there is an obvious error committed by the Appellate Authority in applying Rule 57A to the facts of this case. It appears from the manner in which the whole thing has been dealt with by the Appellate Sub-Committee that the latter has mechanically quoted the words of Rule 57A in its order and did not properly consider this aspect of the matter as to whether the other conditions as between the petitioner and the respondent No. 5 were equal or not. The contention of Mr. Dutt therefore appears to have substance in it and in my view the order of the Appellate Authority cannot be sustained.
19. It may also be pointed out that in an application for a Writ of Certiorari the existence of an alternative remedy 13 not a very relevant consideration. The proceeding or order of an inferior Tribunal can be quashed if there is excess of jurisdiction or want of jurisdiction or there is any error apparent on the face of the record (Halsbury, vol. 11, 3rd Edition, page 130, paragraph 239; page 115 paragraph 213 (case of Writ of Prohibition); page 107 paragraph 200 (case of Writ of Mandamus where alternative remedy is a relevant consideration); (see also case of Nalini Ranjan Guha… v. Annada Sankar Roy…Opposite Party., (14) 56 C.W.N 73 at page 78 where some of the relevant cases have been collected).
20. It was further argued by Mr. Dutt that rule 57A of the Motor Vehicle Rules is ultra vires the Constitution inasmuch as it violates Art. 14 of the Constitution. He submitted that the Rule is ex facie discriminatory and therefore should be condemned as void. Reference is made to Anwar Ali's case (15) A.I.R (1952) S.C 75 at page 90, paragraph 96, page 91, paragraph 97; V.G Row…Petnr.; v. The State Of Madras (16) [A.I.R (1951) Mad. 147 at 177 paragraph 84]; Sheo-sankar v. State Govt of Madhya Pradesh (17) [A.I.R (1951) Nagpur 58 at page 87 paragraph 195]; C.S.S. Motor Service v. State Of Madras (18) [A.I.R 1953 Mad. 279 paragraphs 36, 37 and 38.]
21. It is to be noted however that the Supreme Court has pointed out repeatedly that class legislation is permissible under the Constitution of India and that Article 14 of the Constitution only prohibits unequal treatment of persons similarly situated (Shri Kishan Singh v. The State of Rajasthan) (19) [(1956) S.C.A 402 at 405]; also Balsara's case (20) [A.I.R (1951) S.C 1018]. It may be pointed out that the effect of Rule 57A is that that it discriminates between two separate, classes of permit-holders and non-permit-holders who are thus not similarly situated. Moreover the object of the Rule appears to be to prevent monopoly and to distribute the business of plying buses among different citizens. So the classification is on a reasonable or rational basis. In the circumstances it appears to me that Rule 57A is not void as infringing Article 14 of the Constitution.
22. It is further argued by Mr. Dutt that inviting of fresh applications by Regional Transport Authority after the earlier order of the Regional Transport Authority dated the 25th of February, 1954 was set aside by the State Transport Authority; on the 16th August, 1954 with directions to dispose of the matter according to law, was without jurisdiction and so the whole proceeding resulting in the orders of the Regional Transport Authority dated the 6th January, 1956 and of the Appellate Sub-Committee dated the 16th August, 1956 is a nullity. But it is to be noted that in response to the invitation for fresh application petitioner company made a fresh application for permit and it appeared before the Regional Transport Authority at the hearing of this application along with other applications for permit, and it thus submitted to the jurisdiction of the Regional Transport Authority, But when an adverse order was made by the Regional Transport Authority against the petitioner the latter challenged the order on the ground of this illegality in the matter of inviting fresh applications and also on other grounds. I do no: see why the Regional Transport Authority could not start the proceedings de novo as they did in this case. The order of the Appellate Authority dated the 6th August, 1956 was not very clear on the point as the order of the Appellate Sub-Committee dated the 21st of May, 1956 (see Annexure M) is. The last order specifically directs disposal of the matter having regard to the applications for permits already received by the Regional Transport Authority. The earlier order dated the 16th August, 1956 was not specific on this point. So it is possible that the Regional Transport Authority has misconstrued the order dated the 16th August, 1956 and in the absence of any specific direction of the Appellate Authority contained in that order, the Regional Transport Authority exercised its discretion to start proceedings de novo and to invite fresh applications. In the circumstances, it appears to me that this Court will not be justified in the exercise of its discretionary power under Article 226 of the Constitution to quash the proceedings initiated by the invitation of fresh applications, as asked for by the petitioner.
23. The other point argued by Mr. Dutt was that the order for surrender of the permit dated the 17|19th Septmber, 1955 (Annexure A) was bad. Mr. Dutt referred to sections 58 and 60 of the Motor Vehicles Rules and paragraphs 7 and 23 of the Counter-affidavit. Reliance is also placed on the case reported in 48 C.W.N 142 and pages 143-146 (The United Fruit, Co. Ltd. Shillong. v. The Sree Lakshmi Transport Co. Ltd. (21)]. Mr. Dutt has submitted that as there is no proper cancellation of the permit in terms of the provisions of the Motor Vehicles Act, the order of surrender is void. But it is to be noted that the order of the 25th of February, 1954, was set aside by the Appellate Authority's order dated the 16th August, 1956. So the order granting permit having been set aside, the petitioner had no valid permit to ply the buses and so it was in the fitness of things that the petitioner would surrender the permit which was no longer an effective permit. If it was otherwise, then the procedure for appeal contemplated by Section 64 of the Act becomes nugatory. If the position is that, once a permit is granted it cannot be revoked for three years unless the conditions prescribed in Section 60 of the Motor Vehicles Act exist then the aggrieved person whose application is rejected is denied altogether the relief contemplated by section 64. This does not appear to be the spirit or intendment of the Act. If the order granting the permit is set aside it logically follows that the permit granted under that order ceases to be operative or to be in force.
24. The permit-holder can then legitimately be asked to surrender such a permit. Such a case is not really a case of cancellation as is contemplated by Section 60 of the Act. In view however of my finding that Rule 57 (A) of the Motor Vehicles Rules has not been properly applied by the Appellate Sub-Committee to the facts and circumstances of this case, the order dated the 21st. of May, 1956 must be quashed but it appears to me that merely quashing the order of the Appellate Sub-Committee will not give any real relief to the petitioner if the order of the Regional Transport Authority dated the 6th of January, 1956 is allowed to stand. In other words, an order for the issue of a writ of certiorari to quash the order of the 21st May, 1956 alone will be an infructuous order. So, in my view, this Court should, in the special facts of this case where the order of the Regional Transport Authority has been found to be on the face of it an illegal order and an order made in excess of jurisdiction, also quash that order of the Regional Transport Authority dated the 6th of January, 1956.
25. In the result, this Rule is made absolute and the orders dated the 6th of January, 1956 and the 21st of May, 1956 mentioned in the petition are quashed and a Writ in the nature of Certiorari quashing the said orders will be issued therefor.
26. There will be no order as to costs.
27. Let the operation of this order be stayed for six weeks from date. In the meantime if the Respondent No. 5 so desires, he can prefer an appeal against this order.
A.K.D.G
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