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Hukam Chand And Anr. vs State Transport Authority ...

High Court Of Judicature at Allahabad|17 January, 1961


JUDGMENT Mootham, C. J.
1. This is an appeal from an order of Mr. Justice James dated the 5th December, 1958, dismissing a petition under Article 226 of the Constitution.
2. The relevant facts are these: On the 8th June, 1957, the Regional Transport Authority, Kanpur Region, invited applications for the grant of a single permit on the Jhansi-Garotha route. In response to this invitation a number of applications were received including a joint application from the appellants who are two in number. The applications were thereafter published in the Government gazette and certain objections were received. The matter came before the Regional Transport Authority on the 16th/17th January, 1958, and by a resolution passed at that meeting the Regional Transport Authority sanctioned the grant of a stage carriage permit for a term of three years to the appellants who were, in their opinion, "the best claimants", and thereafter a permit was issued accordingly.
3. Against this order of the Regional Transport Authority three appeals were filed before the State Transport Authority Tribunal, the appellants being respondents Nos. 3, 4 and 5, namely Sri Bhagwan Das Gupta, Sri Ram Gopal Ratha and Sri Radha Mohan. On the 6th February, 1958, the State Transport Authority Tribunal passed an interim order in these appeals directing the Regional Transport Authority , to give its reasons for granting it permit to the appellants, and at the same time it empowered that Authority to hear the parties again in order to be able to give its reasons in detail. The Regional Transport Authority accordingly met on the 10th April, 1958, and after hearing the parties passed the following resolution:
"R. T. A. has heard Bhagwan Das Gupta through counsel, Ram Gopal in person and Messrs. Hukum Chand Sri Ram Tewari through their counsel. The reasons for refusing permits to the first two have as required by. Section 47(7) of Motor Vehicles Act, 1939, already been given in this Authority's Resolution No. 15(26) dated January 16/17, 1958, viz. want of any further vacancy on the route. As for the comparative merits of the three claimants after considering all facts the R. T. A. remain of the view that regard being had to the interest of the public generally Messrs. Hukum Chand Sri Ram Tewari have the best claim."
The State Transport Authority Tribunal then fixed the 25th October, 1958, for the further hearing of the appeals. On the day preceding the date so fixed, namely the 24th October, 1958, the third respondent Sri Bhagwan Das Gupta filed an affidavit before the Tribunal wherein he alleged that one of the members of the Regional Transport Authority, Sri Balmukand Shashtri, was related to the second appellant before this Court, Sri Ram Tewari. This was the first time that such an allegation had been made.
On the following day, the 25th October, the State Transport Authority Tribunal by an order of that date dismissed the appeals of Sri Bhagwan Das Gupta and Sri Radha Mohan, but allowed that of the fourth respondent, Sri Ram Gopal Ratha. It accordingly directed that the permit which had been granted to the appellants be cancelled and that in lieu thereof a permit be granted to Sri Ram Gopal Ratha. The reason for the decision taken by the Tribunal is stated by it in these words:
"Messrs Hukum Chand and Sri Ram Tewari in our opinion should not be allowed to continue to hold this permit. Sri Ram Tewari is closely related to Sri Balmukund Shashtri who happened to be a member of the R. T. A. In fact in another case, it was pointed to us that Sri Shashtri had performed "the marriage ceremony of his niece with Sri Ram Tewari from his place and was, therefore, financially interested in the grant of the permit. An affidavit to the same effect has been filed before us. Sri Ram Tewari has not filed any affidavit nor he is present. Hukum Chand says that the relationship is not so near. Whatever may be the exact relationship it cannot be denied that Sri Balmukund Shashtri should not have exercised his opinion in the grant of this permit. That the discretion of R. T. A. was wrong, is also evident from the fact that it is unable to express its reasons. Grant of such permits shakes public confidence and therefore we are of the opinion that one of the three appeals should be allowed.
4. The appellants thereafter filed a petition in this Court under Article 226 of the Constitution in which they challenged the validity of the order of the State Transport Authority Tribunal and prayed that it be quashed by writ of certiorari. That petition was dismissed by the order which is the subject of the present appeal, the learned Judge holding that the Tribunal had acted rightly in reversing the order passed by the Regional Transport Authority in favour of the appellants.
5. The argument before this Court has covered a fairly wide field. Sri C. S. P. Singh who has very ably argued the case for the appellants has contended, first, that the State Transport Authority Tribunal misdirected itself with regard to the degree of bias which will disqualify a member of that Tribunal from participating in a decision of that body; secondly, that in enacting Sub-section (2) of Section 44 of the Motor Vehicles Act the Legislature had impliedly excluded from consideration any disqualification from membership of a Regional Transport Authority other than the disqualification specified in the sub-section; thirdly, that in any event an objection based on bias has been waived; and finally that as the Regional Transport Authority consisted of six members, the fact that one may have been biased was not a ground for setting aside the decision of the majority.
6. The Regional Transport Authority at all material times consisted of sis members, namely the Commissioner of the Allahabad Division the Collector of Kanpur, The Executive Engineer, P. W. D., Kanpur, Sri Avadhesh Pratap Singh, M. L. A., Sri Balmukund Shashtri who was the Chairman of the District Board, Orai, and Sri B. N. Tandon, the Regional Transport Officer, Kanpur.
7. It is convenient to consider first the submission that the objection that Sri Balmukand Shashtri was disqualified from taking part in the deliberations of the Regional Transport Authority must be deemed to have been waived, because that objection was not taken before the Regional Transport Authority either in January 1958, or in April 1958, when the question of the grant of a permit to the appellants again came before that Authority in remand. The objection was not in fact taken until the 24th October, the date preceding the date fixed by the State Transport Authority Tribunal for the hearing of the appeals.
We think however that it is not now open to the appellants to make this submission, for they on their part omitted to take the point before the State Transport Authority Tribunal at the time of the hearing of the appeals that the objection based on bias must be deemed to have been waived. The point not having been taken then cannot in our Opinion be taken now.
8. Section 44 (2) of the Motor Vehicles Act reads thus:
"A State Transport Authority or a Regional Transport Authority shall consist of a chairman who has had judicial experience and such other officials and non-officials, not being less than two, as the State Government may think fit to appoint; but no person who has any financial interest whether as proprietor, employee or otherwise in any transport undertaking shall be appointed as or continue as a member of a State or Regional Transport Authority, and, if any person being a member of any such authority acquires a financial interest in any transport undertaking, he shall, within four weeks of so doing, give notice in writing to the State Government of the acquisition of such interest and shall vacate office":
To this sub-section a proviso was added by Act 100 of 1956 with which however we are not now concerned. The contention is that the effect of this sub-section is to make the possession of a financial interest in a transport undertaking the only ground for disqualification from being a member of Regional Transport Authority; and reliance is placed upon the judgment of Agarwala, J. in Jagat Bus Service, Saharanpur v. State Transport Authority, Lucknow, AIR 1952 All 74 where at p. 78 that learned Judge said;
"the only prohibition against a person acting as a member of a State or Regional Transport Authority is that he shall not have a financial interest in a transport undertaking. The Legislature having stated the disqualification in express terms, we will not be justified in travelling beyond that disqualification.'' Now the general principle governing the conduct of judicial and quasi-judicial proceedings was stated by Viscount Cave L. C. in Frome United Breweries Co. v. Bath Justices, 1926 AC 586 in these words:
"My Lords, if there is one principle which forms an integral part of the English law, it is that every member of a body engaged in a judicial proceeding must be able to act judicially; and it has been held over and over again that, if a member of such a body is Subject to a bias (whether financial or other) in favour of or against either party to a dispute or is in such a position that a bias must be assumed he ought not to take part in the decision or even to sit upon the tribunal. This rule has been asserted not only in case of Courts of justice and other judicial tribunals, but in the case of authorities which, though in no sense to be called Courts, have to act as Judges of the rights of others".
This general principle has been made from time to time the subject of certain statutory exceptions, but as the Supreme Court, after reviewing the English decisions, has pointed out in Somasankara Sastry v. State of Andhra Pradesh, AIR 1959 SC 1376:
"These decisions show that in England a statutory invasion of the common law objection on the ground of bias is tolerated by decisions, but the invasion is confined strictly to the limits of the statutory exception."
We find ourselves, with great respect, unable to agree with the view taken by Agarwala, J. as to the effect of Section 44(2). In our opinion the provision in that sub-section disqualifying persons having an interest in any transport undertaking is intended not as a limitation of the grounds on which a person may be disqualified under the general law but as an additional ground of disqualification; for a person who has an interest in a transport undertaking in one part of India may not be disqualified on the ground of bias under the general law from being a member of a Regional Transport Authority in some other part of India.
In our opinion the sub-section must be strictly construed and we do not think, with all respect to the learned Judge, that there is justification for holding that the disqualification specified in that sub-section was intended by the Legislature to be the only ground of disqualification. We are of opinion therefore that a person may be disqualified from taking part in the deliberations of a Regional Transport Authority on a ground other than the ground mentioned in the sub-section.
9. Now it is not in dispute that Sri Balmukand Shashtri is related to Sri Ram Tewari, the second appellant, but it is urged that the existence of this relationship is insufficient to establish that real likelihood of bias which was laid down by the Court of Appeal in England in R v. Camborne Justices, (1955) 1 QB 41 as the true ground for disqualification. At most, it is said, there was a mere possibility of bias. The question as to what constitutes bias was elaborately considered by the Supreme Court in AIR 1959 SC 1376. In that case Subba Rao, J. delivering the judgment of the Court said at page 1378.
"The principles governing the "doctrine of bias" vis-a-vis judicial tribunals are well-settled and they are (i) no man shall be a judge in his own cause; (ii) justice should not only be done but manifestly and undoubtedly seem to be done. The two maxims yield the result that if a member of a judicial body is "subject to a bias (whether financial or other) in favour of, or against, any party to a dispute, on is in such a position that a bias must be assumed to exist, he ought not to take part in the decision or sit on the tribunal"; and that "any direct pecuniary interest, however small, in the subject-matter of enquiry will disqualify a judge, and any interest, though not pecuniary, will have the same effect, if it be sufficiently substantial to create a reasonable suspicion of bias". The said principles are equally applicable to authorities, though they are not courts of justice or judicial tribunals, who have to act judicially in deciding the rights of others, i. e., authorities who are empowered to discharge quasi-judicial functions."
The test to be applied, therefore, is the existence of a reasonable suspicion of bias, and not the more rigorous test laid down in (1955) 1 QB 41 a case which unfortunately appears not to have been brought to the notice of the Supreme Court in AIR 1959 SC 1376. Applying this test we consider that Sri Balmukand Shashtri was disqualified from participating in the decision of the Regional Transport Authority.
10. It is however contended that the fact that he did so is not really material because there were five other members and even if he was biased, that was unlikely to have affected the decision of the other members. For this proposition reliance is placed on Sarju Prasad v. South Bihar Regional Transport Authority, AIR 1957 Pat 732. In that case the Regional Transport Authority also consisted of six members, but the Court held that even if one of them he considered to have some bias it could not be concluded that he would have influenced the decision of the majority.
Sarju Prasad's case was earlier in date than the Supreme Court's decision in AIR 1959 SC 1376 and the Court took the stricter view that the real likelihood, and not the mere possibility, of bias had to be established. This view no doubt accounted for the Court's further opinion that the mere fact that one member might be biased would not necessarily be enough to invalidate the decision arrived at by the other members. This decision is therefore distinguishable. In the case before us we have no information as to the individual opinion of the other members of the Regional Transport Authority as to the suitability of the appellants as persons to whom a permit should be granted, and we are unable to exclude the possibility that the opinion of Sri Balmukand Shashtri may have been the decisive factor in the decision arrived at by that authority.
11. In the result therefore we are of opinion that the learned Judge was right in holding that there is no ground for interfering with the decision of the State Transport Authority Tribunal and that this appeal must fail. It is accordingly dismissed with costs.
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Hukam Chand And Anr. vs State Transport Authority ...


High Court Of Judicature at Allahabad

17 January, 1961
  • O Mootham
  • D Uniyal