Decided on December 14,1965

M/s. Jain Transport and General Trading Co., Mathura Appellant

Cited Judgements :-



JAGDISH SAHAI, J. - (1.)THIS writ petition has come to us on a reference made by our brother Pathak on 5th May 1965.
(2.)THE petitioner carries on the business of running stage carriages on hire under the name and style of Jain Transport and General Trading Company, and held two permits for plying his stage carriages on the Mathra-Aligarh route. There were some other operators also on this route. The permits of all the operators were to expire on 5th August 1957, but before that date could arrive, the State of Uttar Pradesh nationalised the aforesaid route (hereinafter referred to as the route) under the provisions of the U. P. Road Transport Services (Development) Act, 1955 (hereinafter referred to as the Act). Some compensation was offered to the petitioner and the others, which they did not accept, with the result that under the provisions of S. 11(5) of the Act, reference was made to the District Judge, Agra, by the Transport Commissioner, U.P., who, on 2-9-1964, transferred all of them for decision to the Court of the Additional District Judge. The petitioner and the others made application on 7-9-1964 before the District Judge, Agra, for recalling the cases from the Court of the Additional District Judge to his own. Those applications were rejected by the District Judge, Agra, by means of the order, dated 26-9-1964. The petitioner then filed the present writ petition in this Court and prayed that the order of the District Judge, Agra, dated 2-9-1964 be quashed. It is also prayed that a writ of mandamus be issued commanding the District Judge, Agra, to recall the petitioners case from the Court of the Additional District Judge, Agra, to his own Court. In addition there is the usual prayer for the issue of any other writ, order or direction that this Court may deem fit to issue.
When this writ petition came up for bearing before our brother Pathak, the only submission that was made on behalf of the petitioner before him was that the reference could not be heard by the Additional District Judge and that the District Judge alone was competent to hear it. Considering that the question was of general importance, Pathak, J. referred the case to a Division Bench.

(3.)MR . S.C. Khare, who has appeared for the petitioner before us, has confined himself to the same submission that he made before Pathak, J. He contends that the words District Judge, occurring in S. 11(5) of the Act cannot include an Additional District Judge because the District Judge is a persona designata for the purpose of that provision and is not referred to by his office. Section 11 of the Act reads :--
"11(1) Where in pursuance of the Scheme published under S. 8 any existing permit granted under Chap IV of the Motor Vehicles Act, the route or routes covered by it are curtailed 1939, is or is deemed to have been cancelled or are deemed to have been curtailed, the permit-holder shall, except in cases where transfer of the permit has been agreed to under Sub-S. (2) of S. 5, be entitled to receive and be paid such compensation by the State Government for and in respect of the premature cancellation of the permit or, as the case may be, for curtailment of the route or routes covered by the permit as may be determined in accordance with the principles specified in Sch. I. (2) The compensation payable under this section shall be due as from the date of order of cancellation of the permit or curtailment of the route covered by the permit. (3) There shall be paid by the Stale Government on the amount of compensation determined under Sub-S. (1) interest at the rate of two and one-half per cent from the date of order of cancellation or curtailment of route to the date of determination of compensation as aforesaid. (4) The compensation payable under this section shall be given in cash. (5) The amount of compensation to be given in accordance with the provisions of Sub-S. (2) shall be determined by the Transport Commissioner and shall be offered to the permit-holder in full satisfaction of the compensation payable under this Act and if the amount so offered is not acceptable to the permit-holder, the Transport Commissioner, may within such time and in such manner as may be prescribed refer the matter to the District Judge whose decision in the matter shall be final and shall not be called in question in any Court."
Rule 12 of the V.P. Road Transport Services (Development) Rules, 1955 (hereinafter referred to as the rules) reads :-
"12. Reference to District Judge under Section 11. - (1) If the permit-holder does not accept the amount of compensation offered to him, the Transport Commissioner shall within 30 days of the receipt of the intimation of his non-acceptance refer the matter to the District Judge of the district in which the headquarter of the Regional Transport Authority which issued the permit is located and shall also forward the following papers :- (a) a full report of the circumstances which have rendered the reference necessary, (b) a memo showing how the compensation has been determined and calculated, (c) a copy of relevant documents including a copy of the plan of the route concerned. (2) The District Judge may call for such further papers as he may consider necessary for the disposal of the reference. (3) The District Judge shall cause to be served a notice on parties of the date and time fixed for the disposal of the reference and any party may, with the permission of the District Judge, file any additional particulars as may be necessary for the complete and effective disposal of the reference. (4) In the hearing and disposal of the reference the District Judge shall follow the procedure as nearly as may be applicable to suits for recovery of money but nothing herein shall be deemed to require him to maintain otherwise than a memoranda of the evidence produced by the parties." It is clear front the provisions of Sub-S. (1) of S. 11 of the Act that a permit can be prematurely cancelled or a route mentioned in the permit can be curtailed only on payment of compensation to the permit-holder. Schedule I to the Act provides the manner of computing the compensation. It is well settled that prohibition of the Stage Carriage operators from doing their motor transport business is deprivation of their property or interest in a commercial undertaking within the meaning of Article 31(2) of the Constitution of India : see Deep Chand v. State of U.P., AIR 1959 SC 648 and Saghir Ahmad v. State of U.P., AIR 1954 SC 728. Therefore, the compensation, that is paid or is made payable under S. 11 of the Act is compensation for deprivation of proprietary rights or interest in a commercial undertaking. Section 11(5) of the Act clearly provides for reference to the District Judge for the final determination of compensation. Rule 12 provides the procedure for the disposal of the reference made to the District Judge. The procedure provided is one that is followed in a regular Court of law. Considering the fact that it is the determination of compensation relating to proprietary rights, the procedure provided is that of a law Court and the circumstance that the District Judge is mentioned by his office and not by name leads to the conclusion that it is the Court of the District Judge that is meant by the expression "District Judge" occurring in S. 11(5) of the Act and R. 12 of the rules and he is not to be treated as persona designata. This conclusion finds support from the provisions of sub-r. (1) of R. 12 which provides that the reference under S. 11(5) of the Act is to be made to the District Judge of the district "in which the headquarter of the Regional Transport Authority which issued the permit is located." This introduces the element of territorial jurisdiction which is required for a Court and not for a persona designata. Persona designata or designated persona means the singling out by description of a party. Persona designata differs from a legal tribunal in so far that its "determinations are not to be treated as judgments of legal tribunals". See Kedar Nath v. S.N. Misra, 1957 All LJ 379 : ((S) AIR 1957 All 484) (FB). In Central Talkies Ltd. v Dwarka Prasad, AIR 1961 SC 606 relying on Osborns Concise Law Dictionary, 4th Edn., p. 353 it was held that a persona designata is a person pointed out or described as an individual, as opposed to a person ascertained as a member of a class or as filling a particular character. In this case Parthasarathy Naidu v. Roteswara Rao, ILR 47 Mad 369 : (AIR 1924 Mad 561) (FB) where Schwabe, C.J. had held that persona designata are "persons selected to act in their private capacity and not in their capacity as Judges" was referred to. In our opinion, therefore, the reference to the District Judge in Section 11 of the Act and rule 12 of the Rules is to the District judge by his office and not in the capacity of persona designata. We find support for our view from Abdul Aziz v. Punjab Government, Lahore, AIR 1942 Lah 186 and Y. Ramachandra Rao v. State of Madras. AIR 1962 Andh Pra 58. In both these cases the provisions that came up for interpretation were those of Section 16(3) of the Indian Telegraph Act, 1885. That provision reads :- "If any dispute arises concerning the sufficiency of the compensation to be paid under Section 10, Cl. (d), it shall on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him." In the Lahore case mentioned above, Backett, J., who spoke for the Division Bench, observed :- "I think, it may be safely said, however, that when a Court normally consists of a single judicial officer, as the Court of a District Judge does, it is quite an ordinary practice in the drafting of Indian statutes for a reference to be made to that officer under this particular title when the intention is to refer to the Court." In the Andhra Pradesh case mentioned above after extracting the passage quoted above, Kumarayya, J. observed :- "With respect, I find myself in complete agreement with the above observation. That apart, as already discussed when on a true construction of the provisions of the Act it is abundantly clear that the intention of the Act was to obtain determination of civil rights of the kind by a civil Court, the use of expressions "the District Judge" or "a District Judge" who are the presiding officers of the District Court, does not militate against any inference as to their being used as synonym for the District Court and such officers on that account cannot be said to have been selected to exercise the powers of a persona designata." In ILR 47 Mad 369 : (AIR 1924 Mad 561) (FB) (supra) the question that a Full Bench of the Madras High Court had to consider was whether the District Judge acting under the powers conferred upon him by the rules framed under the Madras Local Boards Act acted as persona designata or as the court of the District Judge. All the three Judges who constituted the Full Bench, held that the District Judge acted as a court and not as a persona designata. In that case reliance was placed upon National Telephone Co. Ltd. v. Postmaster General (1913) A. C. 546 in which at page 562 Lord Parker observed :- "Where by statute matters are referred to the determination of a Court of Record with no further provision, the necessary implication is, I think, that the Court will determine the matters as a court. Its jurisdiction is enlarged but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same."


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