Antony v. State of Kerala — 1961 DIGILAW 262 (KER)

Judgment :- 1. In this writ petition, Mr. K.S. Sebastian, learned counsel for the petitioner, challenges the orders of the R.T.A. Kottayam, and the State Transport Appellate Tribunal, namely, Exs. P2 and P. 3, respectively. Under Ex. P. 2 the R.T.A. has granted a stage carriage permit in respect of the route in question in favour of the third respondent herein. No doubt, there was an appeal against this grant to the Appellate Tribunal by the aggrieved party, namely, the writ petitioner. The Appellate Tribunal also has ultimately agreed with the grant made by the R.T.A. in favour of the third respondent and as such has confirmed the order of the R.T.A. 2. The main contention that has been urged by Mr. K.S. Sebastian, learned counsel for the petitioner, is that both the authorities have committed an illegality or an irregularity inasmuch as they have clubbed together an application filed by the petitioner as early as 30-8-1955 along with applications that were received by the authority in pursuance of a notification issued on 24-2-1959. Mr. K.S. Sebastian had referred to certain provisions of the Act to which I will advert immediately and also to two decisions, one of the Allahabad High Court and another of the Assam High Court and stated that when an application has been filed by a person in the position of the petitioner under the first part of S.57 (2) of the Motor Vehicles Act and when the notification calling for objections in respect of that application has also been issued under S.57 (3) of the Act there was a statutory duty on the part of the R.T.A. to consider and dispose of the application filed by the said person under S.57 (5) of the Act. Therefore, the learned counsel urged that notwithstanding the objections raised by his client both before the R.T.A. and the Appellate Tribunal they have in law acted illegally in not sustaining the objections so made. 3. Mr. K.S. Sebastian in this connection also relied upon a decision of mine in O.P. No. 1161 of 1959. 4. On the other hand, Mr. Therefore, the learned counsel urged that notwithstanding the objections raised by his client both before the R.T.A. and the Appellate Tribunal they have in law acted illegally in not sustaining the objections so made. 3. Mr. K.S. Sebastian in this connection also relied upon a decision of mine in O.P. No. 1161 of 1959. 4. On the other hand, Mr. C.K. Sivasankara Panicker, learned counsel for the contesting third respondent, has stated that though there was an application filed by the petitioner as early as 30.8.1955 nothing appears to have happened because there was no road on which a bus could operate and even the petitioner does not seem to have been very enthusiastic about this application and the learned counsel relied upon the so-called inaction of the petitioner from 1955 to 1959 when the notification was issued by the R.T.A. calling for applications for the grant of three permits over the route in question in February 1959. The learned counsel again urged that there is no illegality whatsoever in the procedure adopted by the R.T.A. because the application filed by the petitioner as well as the objections made to the application filed by the petitioner have been properly and legally dealt with by the said authority along with other applications that were received by them in pursuance of the notification dated 24. and it is the contention of Mr. C.K. Sivasankara Panicker that the procedure adopted by the R.T.A. is strictly within its jurisdiction and also in accordance with the provisions of the statute. 5. The learned Government Pleader, no doubt, supported the stand taken by Mr. Sivasankara Panicker. 6. In order to appreciate the contentions raised by learned counsel on both sides a few facts will have to be stated. 7. On 30.8.1955 admittedly the petitioner appears to have made an application for the grant of permits and that must be under the first part of S.57 (2) of the Act. There is no controversy that the application was also filed within the time mentioned in S.57 (2). There is also no controversy that the said application filed by the petitioner for the grant of two permits over the route in question was notified for the receipt of objections by the R.T.A. on 29.11.1955. That is also strictly in accordance with the provisions of sub-section 3 of S.57 of the Act. There is also no controversy that the said application filed by the petitioner for the grant of two permits over the route in question was notified for the receipt of objections by the R.T.A. on 29.11.1955. That is also strictly in accordance with the provisions of sub-section 3 of S.57 of the Act. Nothing seems to have happened after the receipt of objections, if any, to the grant of permit asked for by the petitioner in his favour. 8. But on 24.2.1959, the R.T.A. appears to have called for the applications for the grant of three permits over this identical route in respect of which the petitioner had already made the application for grant of two permits as early as 30.8.1955. The notification issued on 24.2.1959 is under the latter part of S.57 (2) of the Act. In response to that notification dated 24.2.1959 there were several applications received by the R.T.A. and in due course they were also notified for the receipt of objections. The petitioner admittedly did not make a fresh application in response to the notice issued inviting applications by the R.T.A. on 24.2.1959. That is explained on the basis that he had filed an application on 30.8.1955. 9. The petitioner, as soon as the notification dated 24.2.1959 calling for applications for the grant of three permits over the route in question was published by the R.T.A., promptly sent a representation on 4.3.1959 evidenced by Ex. P.1. In Ex. P.1 he draws the attention of the R.T.A. to his application filed so far back as 1955 and he also says that no action has been taken on the said application notwithstanding the fact that a notification on 29.11.1955 was also published inviting objections to the application so filed by the petitioner. 10. The petitioner further states in Ex. P.1 that he is in possession of two latest model brand-new buses which could be put on the road even as late as 1959, the date of his petition, Ex. P.1, and he ultimately makes a request to the R.T.A. to consider his application dated 30.8.1955 and grant the necessary permits in his favour. 11. This objection was again raised when the R.T.A. took up the grant of permits for the route in question on 22.12.1959. P.1, and he ultimately makes a request to the R.T.A. to consider his application dated 30.8.1955 and grant the necessary permits in his favour. 11. This objection was again raised when the R.T.A. took up the grant of permits for the route in question on 22.12.1959. In fact, the first applicant, namely, the writ petitioner is styled by the R.T.A. as the person who has sent an uninvited application published in the gazette dated 23.11.1955. There are 15 other persons who appear to have applied for the grant of a permit in pursuance of the notification dated 24.2.1959. 12. The petitioner raised the objection before the R.T.A. that as he had applied for the grant of permits in 1955 itself his application alone should be considered in the first instance and the R.T.A. has not acted legally in calling for applications for the identical route. But this contention was negatived by the R.T.A. in this short sentence, namely, "This contention is rejected as the procedure adopted is in order". As to how exactly the R.T.A. arrived at this conclusion is not indicated in the order itself. Later, the R.T.A. considers the claims that appear to have been urged by the various applicants and ultimately has granted a permit in favour of the third respondent. 13. The petitioner was one of those who filed appeals before the State Transport Appellate Tribunal. Even before the Appellate Tribunal he raised this contention that the R.T.A. ought to have disposed of his application filed under the first part of S.57(2) as early as 1955 without calling for fresh applications. It was also contended that there was considerable delay on the part of the R.T.A. in disposing of the application in question. 14. The Appellate Tribunal appears to be impressed with this contention, namely, that the procedure adopted by the R.T.A. cannot be considered to have been proper. In fact the decision of the learned judges of the Allahabad High Court and also of the Assam High Court appear to have been placed before the State Transport Appellate Tribunal. The State Transport Appellate Tribunal was not convinced that the grievances voiced on behalf of the present writ petitioner were real. In fact the decision of the learned judges of the Allahabad High Court and also of the Assam High Court appear to have been placed before the State Transport Appellate Tribunal. The State Transport Appellate Tribunal was not convinced that the grievances voiced on behalf of the present writ petitioner were real. But the Appellate Tribunal disposed of the objection on the ground that in the disposal of the application one has to see whether justice has been done to all parties and therefore on this ground the Appellate Tribunal considered the other reasons given by the R.T.A. for the grant of permit in favour of the third respondent and ultimately confirmed the grant in favour of the grantee. 15. These two orders, as I mentioned earlier, are under attack in these writ proceedings. 16. The learned counsel, Mr. K.S. Sebastian urged that the application filed under S.57 (2) voluntarily by a party when once it was notified under S.57 (3) has to be considered and disposed of by the R.T.A. as expeditiously as possible as will be seen from the provisions of S.57 (5). No doubt, there was also a reference to the proviso in sub-section 2 of S.58 which, in my view, cannot be invoked for the purpose of this case inasmuch as the said proviso only deals with applications for renewal of permits in which case it is stated that other conditions being equal an application for renewal shall be given preference over new applications for permits. 17. Therefore, the contention of the learned counsel has to be considered, in my view, solely with regard to the provisions contained in S.57. The learned counsel as I mentioned earlier urged that there is a duty under S.57 (5) on the part of the statutory authority, in this case the R.T.A., to consider and dispose of the application filed by the petitioner as soon as representations were received in pursuance of the notification issued by the R.T.A. Admittedly, the R.T.A. invited objections to the application filed by the petitioner by the notification dated 29-11-1955. Again, admittedly it has not done anything till 24-2-1959. Again, admittedly it has not done anything till 24-2-1959. The learned counsel, as I mentioned earlier, relied upon two decisions, namely, one of the Allahabad High Court reported in Makhan Lal v. State of Uttar Pradesh (A.I.R.1952 Allahabad 437), and the other of the Assam High Court reported in Sitaram v. Rajendra Chandra (A.I.R.1956 Assam 6). I had occasion to advert to these decisions in my judgment in O.P. No. 1161 of 1959. No doubt, in the said Original Petition, the R.T.A. when it was considering the application of a party under the first part of S.57 (2) stopped the proceedings and after adjourning consideration of the matter immediately called for applications for the identical route. At that stage the person whose application has been filed under S.57 (2) and objections had been called for and which were more or less heard in part by the authority came up to this court for issuing a direction to the R.T.A. to consider and dispose of his application, before considering the applications, if any, that may be received in pursuance of the notification issued by the R.T.A. I accepted the contention of the writ petitioner and came to the conclusion that there was a duty on the part of the R.T.A. in that case to consider and dispose of the application filed by the petitioner under the first part of S.57 (2) and more especially when objections had been received and those objections had been taken up for, consideration by the R.T.A. 18. At this stage I may mention that both the learned Government Pleader and Mr. Sivasankara Panicker, learned counsel for the contesting respondent, relied upon an observation of mine contained in the said order to the effect "It may be that at the time the petitioner filed his application it was open to the R.T.A. to simultaneously call for applications for the same route and consider these applications along with the petitioner's application in respect of the said route. But having kept quiet at the material time and having taken up for final disposal the application of the petitioner filed on 12-3-1956 the duty of the R.T.A. as rightly pointed out by Mr. Neelakanta Menon is contained in sub-section 5 of S.57 " The support that is sought to be derived from these observations by the learned Government Pleader as well as Mr. Neelakanta Menon is contained in sub-section 5 of S.57 " The support that is sought to be derived from these observations by the learned Government Pleader as well as Mr. Sivasankara Panicker is that I have clearly indicated that there is nothing illegal in a Regional Transport Authority clubbing together an application that may have been received under the first part of S.57 (2) and considering it along with an application that may be received in pursuance of a notification issued under the latter part of S.57 (2). I may make it very clear that these observations will in no way support the contentions of the learned counsel for the respondents in this case. The position that I was having in mind when I made those observations, is that when a party makes an application under the first part of S.57 (2) it is also open to the authority, before publishing that application inviting objections, to itself also consider and take a decision as to whether a notification should be issued calling for permits under the latter part of S.57 (2). If the authority so decides there is nothing illegal in calling for applications and publishing the application received under the first part of S.57 (2) and the applications that Way be received under the second part of S.57 (2) and for objections and give it a common disposal under the other provisions of the Act. 19. In this case I am satisfied that there was absolutely no justification for the R.T.A. keeping quiet for nearly four years. No doubt, it is sought to be made out by the learned Government Pleader that the R.T.A. could not do anything in this case because there was no road over which the bus of the petitioner even if he had been granted a permit on the basis of his application dated 30-8-1955 could ply, because the learned Government Pleader urged that the Engineer in charge of Roads had intimated that the road was ready only on 25.5.1959. If this justification for waiting for the consideration of the petitioner's application on this basis is to be accepted, even then, in my view, there was absolutely no justification for the R.T.A. not to take the application filed by the petitioner as early as 1955. If this justification for waiting for the consideration of the petitioner's application on this basis is to be accepted, even then, in my view, there was absolutely no justification for the R.T.A. not to take the application filed by the petitioner as early as 1955. If there was actually no road, according to the R.T.A., in respect of which a grant of permit could be made till 25.5.1959, I fail to see on what basis they called for applications in respect of this route at least 31/2 months earlier in this case. Therefore, J am not inclined to accept the contention of the learned Government Pleader that the inaction in this case on the part of the R.T.A., though I may say that the latter did not file any affidavit in these proceedings to 'satisfy me about the delay, was due to the reason that there was no road as is now sought to be made out. If there was no road, the easiest thing for the authority would have been to take up the application of the petitioner immediately after receipt of the objections and dispose it of on the ground that there was no road over which a permit could be granted. 20. It is not necessary for me to advert to the two decisions of the Allahabad and Assam High Courts referred to by the learned counsel because I have already adverted to those decisions and expressed my respectful approval of the principles laid down therein in my judgment in O.P. No. 1161 of 1959. 21. The Appellate Tribunal was perfectly justified in showing its inclination to accept the contention of the petitioner that the procedure adopted by the R.T.A. is not warranted and legal. But I am not satisfied with the manner in which it has attempted to get over this objection. It says the proper view to be taken is whether there has been a violation of justice in this case. Violation of justice has no bearing in considering the question whether the petitioner's application should have been considered quite independent and apart from other applications that were received in 1959 and in :response to the notification issued calling for applications, in the circumstances of this case, at any rate. 22. Therefore, it follows that the orders of the R.T.A. and the State Transport Appellate Tribunal are set aside subject to the following directions. 23. 22. Therefore, it follows that the orders of the R.T.A. and the State Transport Appellate Tribunal are set aside subject to the following directions. 23. The R.T.A. will in the first instance take up the application made by the petitioner in this writ petition on 30.8.1955 for grant of two permits over this route along with the objections, if any, received in response to the notification dated 29.11.1955. After considering it and giving a disposal one way or other to the claim made by the petitioner for the grant of permits, it is open the R.T.A. to take up and consider The application filed by the third respondent in this case in response to the notification issued on 24-2-1959. I am not inclined to permit the R.T. A. to take up and consider the other 14 applications which were also before the said authority because I find none of them seem to have any grievance either against the order of the R.T.A. or the State Transport Appellate Tribunal. No doubt, there appears to have been one other appellant before the State Transport Appellate Tribunal but that party also has now-vanished from the picture and he has not figured as a writ petitioner in this court or a respondent in these proceedings. - Therefore, the R.T. A. after considering and disposing of the application filed by the writ Petitioner will independently take up the application filed by the third respondent alone and consider his claims on its merits and give it a disposal one way or other. Subject to the directions given above. The two orders under attack are set aside and this writ petition is allowed. Parties will bear their own costs in this writ proceeding. Allowed.