Saroj Kanti Basu vs S.C. Singha Roy and Others

Sinha, J.—The petitioner is a refugee from Eastern Pakistan. After the partition, he came to West Bengal and it appears that, as a measure of rehabilitation, the R.T.A., Calcutta Region, in May, 1949, granted a permit to the petitioner to run a bus in route No. 54 being a route between Howrah and Bally Khal. In the application for such a permit, the petitioner had to answer a question as to whether he owned any bus in Pakistan or had any transport business and he gave the following answer:--

Yes, for about 8 years at Jessore (route No. 13, Jessore to Keshabpur). Cancelled on account of old model bus No. BGE 108. Replacement ordered before partition but cancelled immediately after partition. Documentary evidence shall be furnished whenever demanded.

One Purna Chandra Chatterjee and Hare Krishna Das made a complaint to the R.T.A. that the petitioner had made a false representation in his application, inasmuch as he was never a permit-holder in respect of bus No. BGE 198, at Jessore. Hare Krishna Das claimed that he was the owner of the bus and that the petitioner had never run it. As a result of these representations, the R.T.A. on or about the 9th of October, 1950, requested the petitioner to produce the registration certificate and other relevant documents showing that the petitioner had been the owner of bus No. BGE 108 in Jessore and also to produce the original order of cancellation issued by the R.T.A. Jessore, by the 14th October, 1950. On the 27th of February, 1951, the Secretary, R.T.A, called upon the petitioner to show cause why the permit granted to him in respect of route No. 54, should not be cancelled u/s 60(1) (d) of the Motor Vehicles Act, 1939. Pursuant to the said notice, the petitioner duly showed cause which was considered by the R.T.A., at its meeting on the 29th of March, 1951. wherein it was decided that the permit of the petitioner should be cancelled. From the said decision the petitioner preferred an appeal to the Provincial Transport Authority on or about the 4th of May, 1951, and pending the appeal the status quo was directed to be maintained. It appears that the appeal was rejected. On or about the 17th of August, 1951, the petitioner preferred a further appeal to the Member, Board of Revenue, which was numbered Appeal No. 85 of 1951. Further proceedings for cancellation of permit was stayed until the disposal of the case by the Board of Revenue. The Board of Revenue considered the matter and came to the conclusion that the petitioner had been rather harshly treated and that the matter should be remanded for reconsideration. The Hon''ble Member, Board of Revenue, observed that it was well-known that official papers and records from East Bengal were difficult to obtain. The petitioner had filed two certificates granted by Dr. J.R. Dhar which were to the effect that the petitioner had been running buses at Jessore before the partition. The Board of Revenue observed that Dr. Dhar was a very responsible person and the R.T.A. might examine him, if necessary.

Upon remand, the matter was reheard by the State Transport Authority, West Bengal, who again rejected the appeal. On or about the 19th September, 1952, the petitioner preferred an appeal against this order to the Board of Revenue. On or about the 23rd of October, 1952, there was published an amendment of the Bengal Motor Vehicles Rules whereby it was provided as follows:--

The authority to decide an appeal against an order of the State Transport Authority or a Sub-committed thereof in respect of any of the matters referred to in clause (b) of section 64 shall be a committee to be appointed in this behalf by the State Government by a general or a special order and any person intending to prefer an appeal against an order of the State Transport Authority or a Subcommittee thereof in respect of such matter, shall, within thirty days of the receipt of the order, do so in writing.

Pursuant to this rule, by a notification published in the Calcutta Gazette on the 6th of August, 1953, the State Government appointed a committee consisting of the respondents S.C. Singha Roy. Dr. Amulya Dhan Mukherjee and Dr. Jiban Ratan Dhar as authority to decide appeals under rule 83 of the said Rules. It is this committee which dealt with the appeal of the petitioner which was then pending before the Board of Revenue, and, on the 23rd of September, 1953, rejected the appeal. The petitioner makes a grievance that he was not heard But this aspect of the matter is unnecessary to be considered in view of the decision to which I have arrived on the real point, namely, as to whether the Committee was competent to hear an appeal which was then pending before the Board of Revenue. In this rule the petitioner challenges the jurisdiction of the Committee to consider the appeal and the decision arrived at by the Committee dated 23rd of September, 1953.

Substantially speaking, there are two points taken on behalf of the petitioner. Firstly, that the amended rule which changed the forum for the consideration of appeals from the State Transport Authority, was not retrospective and, therefore, did not affect pending appeals. Secondly it is urged that Dr. Dhar having granted a certificate upon which the petitioner was relying in the proceedings and the matter having been sent down with the opinion that his evidence might be taken, if considered necessary, he was in the position of a witness and as such it was not proper that he should have acted as the Judge.

With regard to the first point, I think it is a proposition which is well-settled that an amendment which changes the forum of any pending proceeding cannot he considered to be retrospective unless expressly so provided for. If authority were needed for this proposition, it is sufficient to refer to the case of The Colonial Sugar Refining Company Ltd. v. Irving, 1905 A.C. 369. Lord Macnaghten stated there as follows:--

As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extended from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure?. It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new Tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.

In Shaikh Sadai Ali v. Shaikh Dalimuddin, 32 C.W.N. 1130, an amendment of clause 15 of the Letters Patent to the effect that no appeal lay from a judgment of one Judge of the High Court in the exercise of Appellate Jurisdiction unless such Judge certifies that the case was a fit one for appeal, was held not to be retrospective and did not apply to appeals in respect of suits instituted before the 14th of January, 1928. In this case Rankin, C.J., followed the case of the Colonial Sugar Company (supra) and came to the conclusion stated above.

The result is that where the amending statute changes the forum of any legal proceeding but does not expressly state that the amendment would be retrospective, or unless such an inference can be made as a necessary intendment, the amending statute only applies prospectively and does not affect the forum of any pending proceedings which must be continued in the forum which existed before the amending statute. In view of this proposition, the Committee was clearly without jurisdiction in dealing with the appeal of the petitioner. It is unnecessary for me to say very much with regard to the second point except mentioning that under circumstances as are disclosed in the present case, it was clearly desirable that a person, who had granted a certificate which has some bearing on the issues that are to be decided and which certificate is being used as evidence in the case, should not, under normal circumstances, deal with the case or decide the same.

For the reasons stated, this rule must be made absolute and a writ will issue in the nature of certiorari quashing the order of the Committee dated the 19th December, 1953, and or any other finding relating to the appeal No. 108 of 1952, made by any of the respondents constituting the said Committee. The order is also set aside and they are directed not to deal with this appeal. The case will now be decided by the Board of Revenue before whom it was pending. There will also be a writ in the nature of a mandamus directing the said respondents not to give effect to the order dated the 19th December. 1953.

It has been pointed out by Mr. Sen appearing on behalf of the respondents that the petitioner never took the point of jurisdiction before the Committee. At least nothing appears from the record that such point had been taken. In view of this I do not award the petitioner any cost of this application. There will, therefore, be no order as to costs. Learned counsel on behalf of the petitioner states that as a result of the wordings of the rule he is prevented from plying his bus. I make it clear that nothing appearing in the rule or in this judgment will prevent him from plying the bus, if he is otherwise entitled to it. I cannot, however, deal with the question of stay pending the appeal. That is a matter that must be dealt with by the appellate tribunal.