Phulchand Ram v. State Of Bihar And Others Opposite Party.

Choudhary, J.:— This is an application under Article 226 of the Constitution of India. The facts leading to the presentation of this application, stated briefly, are these; The East Bihar Regional Transport Authority, opposite party No. 3, advertised a permanent vacancy for a permanent bus service on the Gonda Pirpainti route and invited applications till 30-5-1953. It appears that within that period Jagannath Prasad Jaiswal, opposite party No. 4, hereinafter to be referred to as Jaiswal, and one Srikant Dube, made applications for permit for the same. Subsequently, the State Government contemplated nationalisation of bus transport and issued a circular stopping the grant of permanent permit for any route.

2. On 18-12-1953, however the Regional Transport Authority, in order to meet public need advertised the above route for grant of a temporary permit renewable after every four months. The petitioner, Phulchand Ram, one Roshan Mistri and twelve other persons made applications for the grant of a temporary permit for the above route. Jaiswal and Srikant Dube did not make any fresh application on this occasion, but their previous applications were also considered along with the fourteen applications made for a temporary permit by the Regional Transport Authority on 30-12-1953. It appears that the application of Srikant Dube was rejected in limine as it was supposed to have been filed beyond the prescribed time. The cases of the other fifteen applicants were considered on merit and permit was granted to Roshan Mistri on that date. Jaiswal, Srikant Dube and the petitioner Phulchand Ram preferred separate appeals against the grant of permit, but the appeals preferred by Jaiswal and the petitioner were dismissed as being without merit. The appeal filed by Srikant Dube, however, was allowed as, in the opinion of the appellate authority, his application had been filed within the prescribed period. The case was, therefore, remanded to the Regional Transport Authority for a fresh decision with a direction that the fourteen applications for temporary permit and the two applications of Jaiswal and Srikant Dube for the grant of a permanent permit may be considered for the grant of a temporary permit.

3. On 28-8-1954, the Regional Transport Authority after considering these sixteen applications granted permit to Roshan Mistri. Jaiswal, Srikant Dube and the petitioner again filed separate appeals against the order of the Regional Transport Authority dated 28-8-1954, granting permit to Roshan Mistri, which were disposed of on 11-1-1956, and the order of the Regional Transport authority was modified to the extent that certain conditions were imposed to the grant of the permit to Roshan Mistri.

4. Those conditions, however could not be carried out by Roshan Mistri and, therefore, the permit in favour of Roshan Mistri was cancelled and a temporary permit was granted to the petitioner on 28-2-1956. Towards the end of 1956 the State Government decided not to nationalise the above route and ordered for issue of permanent permit, and instructions were sent to the Regional Transport Authority to discontinue the practice of granting temporary permits and to take steps for permanent permits. Accordingly the petitioner filed an application in the prescribed form and with the requisite fee for making his temporary permit permanent which was advertised in the usual manner.

5. An objection was raised by Jaiswal to the grant of a permit to the petitioner and it was stated that his petition filed in May, 1953 against the permanent vacancy was still pending which ought to be considered for the present permanent vacancy. The above objection was overruled by the Regional Transport Authority who granted a permanent permit to the petitioner. Jaiswal preferred an appeal before the State Transport Authority who, on 1-11-1957, set aside the order of the Regional Transport Authority granting the permit to the petitioner and directed that the Regional Transport Authority should, first dispose of the applications including the application of the appellant (Jaiswal) in connection with the advertisement for the permanent route in 1953 and that, after they have disposed of these applications and granted the permit to one of the applicants, unless considered unfit for reasons to be recorded, it would be open to the Regional Transport Authority, for reasons to be recorded if they think so fit, to create another Service on the same route and grant to such persons as they deem fit or may even dispose of the subsequent application of the respondent according to law. Being, thus aggrieved, the petitioner has made this application for issue of a writ of certiorari to quash the above order of the State Transport Authority.

6. Cause has been shown by Jaiswal who has filed a counter affidavit. The sum and substance of that counter affidavit is that the application filed by him in May, 1953 was still pending for disposal against a permanent vacancy and that the petitioner could not get a permanent permit as he never made any application for the same before 30-5-1953 which was the last date for making an application for a permit against a permanent vacancy. It is also stated that he never got his above application considered on the occasion of granting a temporary permit.

7. Mr. Baldeva Sahai in support of the application has contended that the appeal preferred by Jaiswal before the State Transport Authority against the order of the Regional Transport Authority granting permit to the petitioner was not maintainable and the State Transport Authority had no jurisdiction to set aside the order of the Regional Transport Authority. It is contended that Jaiswal was not an applicant for grant of a permanent permit after the State Government decided not to nationalise the route in question and, therefore, he had no right to prefer an appeal before the State Transport Authority.

8. In reply to this contention, it was urged on behalf of Jaiswal that his application for a permit filed in May, 1953, against a permanent vacancy was still pending and that no application having been made by the petitioner before 30-5-1953, he was not entitled to get any permit for a permanent vacancy. On the contentions of the parties the question that arises for consideration is whether Jaiswal was an applicant so as to be entitled to get a permit for the permanent vacancy on the present occasion and whether the petitioner could legally be an applicant for such permit if he did not make any application for the same before 30-5-1953.

9. It is submitted on behalf of Jaiswal that his application for a permanent permit never lost its character as is made absolutely clear from the fact that the Regional Transport Authority advertised the same in the Bihar Gazette dated 8-1-1958. A copy of the Gazette is marked annexure ‘B’ to the counter-affidavit, and it really shows that an application on behalf of Jaiswal was advertised. It is not clear from this document as to which application of Jaiswal was being advertised.

10. The date of the application is not given and it is not, therefore, possible without further material to hold that the application filed by Jaiswal in 1953, was advertised in January, 1958. Moreover, in my opinion, the application could not, in law, be advertised after a lapse of a long period. Sub-section (3) of Section 57 of the Motor Vehicles Act states that on receipt of an application for a stage carriage permit or a public carrier's permit, the Regional Transport Authority shall make the application available for inspection at the office of the Authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date, not being less than thirty days from such publication, on which, and the time and place at which, the application and any representation received will be considered.

11. There is a proviso to the above sub-section, but it has no bearing to the present case. Rule 46(a) of the Bihar Motor Vehicles Rules, 1940, framed under the above Act, lays down that upon receipt of an application for a stage carriage permit or a public carrier's permit the Secretary to the Regional Transport Authority or of the State Transport Authority, as the case may be, shall post a copy of the application together with the notice of the date before which representations may be submitted and of the date appointed for-consideration on a suitable notice board situate on the premises of the Authority, shall publish the application or the substance thereof in the Bihar Gazette and shall forward a copy thereof to the District Magistrate of the district in which the route lies.

12. The above rule read with S. 57(3) makes it perfectly clear that upon receipt of the application it has to be advertised in the Gazette. There is of course no time limit for such advertisement. But the expression upon receipt of an application used in rule 46(a) means as soon as possible after the receipt of the application and not at any time long after the filing of the application. In other words, the advertisement required by the above rule has to be made within a reasonable time from the date of the filing of application, and not after a lapse of about five years as in the present case.

13. The application filed by Jaiswal could not be treated as existing even on another ground. It is apparent from annexure ‘C’ to the petition for a writ, which is a resolution of the Regional Transport Authority granting a permit to Roshan Mistri for the second time as stated above, that the application of Jaiswal that he had made in 1953 for the permanent vacancy was actually considered at the time of the grant of temporary permit and he actually gave evidence before the Regional Transport Authority at the time and promised to give latest model bus as he had no ready bus. He also produced a purchase receipt of a vehicle. His application, however, was not allowed, but it must be taken to have been disposed of as the permit was given to Roshan Mistri and not to him.

14. That being the position, it is not possible to hold his disposed of application to be still existing to be considered for a permanent vacancy after the State Government decided not to nationalise the above route. The advertisement of his application in the Gazette in January, 1958, even if it be held to be for the application filed by him in May, 1953, may be explained away by reason of the fact that after the State Transport Authority set aside the order of the Regional Transport Authority and directed him for considering the application of Jaiswal it might have been thought advisable to advertise his application treating it as still existing though, in fact, it was disposed much earlier. I am therefore unable to hold this application to be existing for the purpose of being considered for a grant of permanent permit on the present occasion.

15. The provision for preferring an appeal against a grant of permit is laid down in Section 64 of the Motor Vehicles Act. A person coming under various clauses of that section is entitled to prefer an appeal to the prescribed authority. Clauses (b) to (e) and (g) to (i) admittedly have no application to the present case. The only other two clauses under which Jaiswal could have preferred an appeal to the State Transport Authority are clauses (a) and (f) of that section, according to which any person (a) aggrieved by the refusal of the State or a Regional Transport Authority to the grant of a permit, or by any condition attached to a permit granted to him, or (f) being a local authority or police authority or an association which, or a person providing transport facilities who, having opposed to grant a permit, is aggrieved by the grant thereof or by any condition attached thereto, may within the prescribed time and in the prescribed manner, appeal to the prescribed authority.

16. It is stated by Counsel appearing for Jaiswal that his appeal was not under clause (f) and he could not complain of refusal to grant a permit to him under that clause. He bases his appeal filed by him before the State Transport Authority under cl. (a) of S. 64 as having been aggrieved by the refusal of the Regional Transport Authority to grant a permit to him. It is an undisputed fact in this case that no application was made on his behalf on the present occasion for grant of any permit. It has already been held I above that his previous application filed in May, 1953, had already been disposed of. He was, therefore, never an applicant of a permit on the present occasion.

17. As a matter of fact, there is nothing on the record to show that any application was invited by the Regional Transport Authority for such a permit after the State Government decided not to nationalise the above route. The application made by the petitioner for a permit was made under the first part of sub-section (2) of Section 57 of the Motor Vehicles Act which says that an application for a stage carriage permit or a public carrier's permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect and this application made by the petitioner was advertised in the Gazette for representations to be made against the grant of a permit to him.

18. Jaiswal not being an applicant at all on this occasion could not get a permit and the question of refusal by the Regional Transport Authority to grant him a permit did not arise. That being the position, he had no locus standi under Section 64(a) of the Motor Vehicles Act to prefer an appeal to the State Transport Authority against the order of the Regional Transport Authority granting a permit to the petitioner. It is thus clear that no appeal lay in this case to the State Transport Authority and as such, that authority had no jurisdiction to set aside the order of the Regional Transport Authority granting a permit to the petitioner.

19. The result, therefore, is that the order of the State Transport Authority setting aside the order of the Regional Transport Authority granting a permit to the petitioner for the above route is ultra vires and without jurisdiction and must be quashed. Let, therefore, a writ of certiorari issue quashing the above order of the State Transport Authority passed on 1-11-1957. The petitioner is entitled to his costs of this application. Hearing fee Rs. 150/- payable by Jaiswal, opposite party No. 4.

20. Ramaswami, C.J:— I agree.

V.B.B

21. Petition allowed.