D.C.GHEEWALA - (1.) These seven petitions directed against the order of the State Transport Appellate Tribunal which is cited as respondent No. 3 though purported to have been filed under Art. 226 of the Constitution are in fact petitions under Art. 227 of the Constitution of India and seek to challenge the order of the said authority on numerous grounds.
(2.) The facts of the case can be briefly narrated as under : Respondent No. 1 in all the petitions held a particular contract carriage permit originally issued by the Regional Transport Authority at Baroda which is cited as respondent no. 2. Subsequently during the pendency of the said permit an application was given by respondent no. 1 to respondent no. 2 for extending the area of the validity of the said permit to other regions in the State of Gujarat. Respondent no. 2 granted the said application. The orders of the said authority are produced at Annexure-A in each petition.
(3.) Being aggrieved by the said decision Gujarat State Transport Corporation the petitioner in the present petitions filed appeals before respondent no. 3 which authority dismissed the said appeals. The main contention of the petitioner appears to be that respondent no. 3 had not complied with the procedural and substantive requirement as provided by the Statute namely Motor Vehicles Act and respondent no. 2 was guilty of a jurisdictional error and had no authority to extend the validity of the said permits. Being petitions under Art. 227 of the Constitution of India Mr. M. D. Pandya was conscious of the fact that unless jurisdictional error is pointed out or unless there is a mistake which is apparent on the face of the record of the case the High Court in exercise of its jurisdiction under Art. 227 of the Constitution. would be reluctant to interfere with the impugned orders. The main contention of Mr. Pandya is based on non-compliance with the provisions of the Statute namely secs. 45 49 50 ands 51 and 57 of the M.V. Act. All these Sections are to be found in Chapter IV of the Motet Vehicles Act hereinafter to be referred to as `the Act for the sake of brevity and is captioned as `Control of Transport Vehicles. Sec. 45 deals with general provision as to applications for permits. In the instant case respondent no. 1 was holding a contract carriage permit and a specific provision for application for a contract carriage permit is to be found in sec. 49. Sec. 49 reads as under : "49 An application for a permit to use one or more motor vehicles as a contract carriage or carriages (in this Chapter referred to as a contract carriage permit) shall contain the following particulars namely :- (a) the type and seating capacity of the vehicle or leach of the vehicles; (b) the area for which the permit is required; (c) in the case of a motor vehicle other than on motor cab the manner in which it is claimed that the public convenience will be served by the vehicle; and (d) any other particulars which may be prescribed. Sec. 50 deals with the procedure which the Regional Transport Authorities should follow while considering an application for contract carriage permits and it reads as under : " 50 A regional Transport Authority shall (in considering an application for) a contract carriage permit have regard to the extent to which additional contract carriages may be necessary or desirable in the public interest; and shall also take into consideration any representations which may then be made or which may previously have been made by persons already holding contract carriage permits in the region or by any local authority or police authority in the region to the effect that the number or contract carriages for which permits have already been granted is sufficient for or in excess of the needs of the region or any area within the region". A plain reading of sec. 50 of the Act shows that when an application for contract carriage permit is made to the authority the authority has to consider representations which may be then made or which may previously have been made by persons already holding contract carriage permits the local authority and the police authority and after hearing these persons it shall have to arrive at a decision as is whether the existing facilities are adequate or otherwise and as to whether under the circumstances the contract carriage permit as prayed for requires to be granted. Regarding this particular phraseology of sec. 50 and the procedure to be followed by the Regional Transport Authority Mr. Pandya raised an objection that the very language of the Section contemplates a notice to be issued to the persons who are entitled to make representation and unless such notice is given an effective representation cannot be made by persons entitled to make such representation and in the instant case no such notice was given. Both the authorities seem to have brushed aside this particular objection on the ground that in the instant case no application for a new permit was made by respondent no. 1 but the application was only for an extention of permit. Secondly it was also sought to be argued by Mr. J. P. Patel for the respondent that the rules do not provide for giving of a notice in case of an application for a contract carriage permit whereas specific provisions are to be found in case of permit for a stage carriage. In this behalf my attention was drawn to a decision reported in AIR 1968 Assam P. 55 (Bhaba Kanta Bora v. The Appellate Board of State Transport Authority Assam) the Division Bench of the sand High Court in the said decision was concerned with the legality of a grant of contract carriage permit without giving adequate notice to the parties interested in the matter and without hearing them. The learned Chief Justice speaking for the Bench observed as under:- " An executive authority or an authority exercising some form of quasi judicial function may not strictly conform to the requirements of the section or follow the requisite procedure. But that by itself may not (render the action of the authority totally void or without jurisdiction or totally illegal so as to call for the interference of the High Court under Article 226". Another Member of the Bench Justice P. K. Goswami in para 8 of the judgment observed as under:- "While in the case of a stage carriage permit under sec. 57 (3) of the Act there is an obligation cast on the authorities granting a permit to make the application available far inspection by the public or people who are interested as also by publication in the official Gazette there is no obligation for publication of an application for a contract carriage permit. Under sec. 50 of the Act the authorities should take into consideration any representation which may then be made at the time of hearing or which may previously have been made by persons already holding contract carriage permits in the region or by any local authority or police authority in the region and if there is no provision made in the rules or in the Act for a prior publication of the application for a contract carriage permit the people who are interested will be in complete ignorance of any application for a contract carriage permit. Amendment of rules are therefore suggested". Relying upon these observations Mr. Patel the learned advocate for the respon dents Urged that sec. 50 which deals with contract carriage permit is silent on the point of notice whereas sec. 57 sub-clause (3) which deals with stage carriage permits specifically provides for a notice and when sec. 50 does not provide for any specific notice to be issued to the persons interested in making a representation nor raising an objection the impugned Act of the authority cannot be considered to be violative of any statutory provision and even if it is so if the authorities have not strictly conformed to the requirements of the Section or have failed to follow the requisite procedure that by itself would not warrant any inter. ference by the High Court under Art 226 or 227 of the Constitution of India.;