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1962 DIGILAW 164 (KER)

Balakrishna Panicker v. STAT, Ernakulam

1962-06-11

M.S.MENON, S.VELU PILLAI, T.K.JOSEPH

body1962
Judgment :- 1. This is an appeal by the petitioner in O.P. No. 429 of 1961 against the dismissal of that petition. The judgment under appeal has since been reported; ILR.1961 (2) Kerala 262. 2. Four stage carriage permits were granted by the Regional Transport Authority, Ernakulam, on the route Vypeen-Pallippuram. One of them was to the appellant before us. 3. Appeals were filed before the State Transport Appellate Tribunal by some of the applicants whose applications were refused by the Regional Transport Authority. The State Transport. Appellate Tribunal sustained two of the permits granted and set aside the other two. The permit granted to the appellant was one of the two sustained by the Tribunal. 4. The State Transport Appellate Tribunal granted the two permits not sustained to applicant Nos. 4 and 31. Writ Petitions against the order of the State Transport Appellate Tribunal followed. This Court set aside the order of the Tribunal and directed a fresh consideration and disposal (1960 KLT.1058). 5. The State Transport Appellate Tribunal then considered the matter afresh as directed by this Court, set aside all the four permits granted by the Regional Transport Authority inclusive of the one granted to the appellant, raised the number of permits to be granted from four to six, and granted one permit each to applicant Nos. 1, 2, 3, 4, 5 and 17. The main contention before us is that the State Transport Appellate Tribunal had no jurisdiction to increase the number of permits from four to six as it has done, and that as a result the whole decision of the Tribunal should be set aside as illegal and unwarranted. 6. S.47 (3) of the Motor Vehicles Act, 1939, provides that a Regional Transport Authority may, having regard to the matters mentioned in sub-section (1) of that section, "limit the number of stage carriages generally or of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region." According to the appellant there was a limitation under this subsection - to four - by the Regional Transport Authority of the number of stage carriages for which stage carriage permits may be granted on the route. We propose to assume, without deciding, that such is the case. 7. We propose to assume, without deciding, that such is the case. 7. The question for determination is whether the State Transport Appellate Tribunal has the right to interfere with such a limitation and modify the figure. We have come to the conclusion that it has. 8. It is true that no appeal is provided against an order of a Regional Transport Authority under S.47(3) of the Act. But the proviso to S.57(3) says that "if the grant of any permit in accordance with the application or with modifications would have the effect of increasing the number of vehicles operating in the region, or in any area or on any route within the region, under the class of permits to which the application relates, beyond the limit fixed in that behalf under sub-Section (3) of S.47 or sub-section (2) of S.55, as the case may be, the Regional Transport Authority may summarily refuse the application" and from such a refusal an appeal to the State Transport Appellate Tribunal is apparently permissible under S.64(a) of the Act. 9. The primary attack in an appeal against a summary refusal under the proviso to S.57(3) can only be against the propriety and extent of the limitation under S.47(3) of the Act. From this must follow the conclusion that the State Transport Appellate Tribunal has the power to vary the figure fixed by a Regional Transport Authority under S.47(3) while dealing with an appeal under S.64 of the Act. Without that power a summary refusal of an application can be followed - in most cases - only by a summary dismissal of the appeal as well. 10. S.64 (a) of the Motor Vehicles Act, 1939, provides that "any person aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him" may, within the prescribed time and in the prescribed manner, appeal to the prescribed authority. We take the view that a person aggrieved by a refusal in pursuance of the proviso to S.57(3) of the Act is a person entitled to appeal under this provision. 11. The same view has been adopted in AIR. 1957 Rajasthan 99 and AIR. 1959 Rajasthan 121. We take the view that a person aggrieved by a refusal in pursuance of the proviso to S.57(3) of the Act is a person entitled to appeal under this provision. 11. The same view has been adopted in AIR. 1957 Rajasthan 99 and AIR. 1959 Rajasthan 121. In the former case the court said: "If the Regional Transport Authority arbitrarily limits the number of stage carriages for which permits are to be granted and if any person is aggrieved by the refusal of that authority to grant him a permit, his case would in our opinion be covered by S.64 (a) and the Appellate Authority would be able to give him adequate relief. In other words, it cannot be said that the Appellate Authority would be helpless in every case when the number of permits is limited by the Regional Transport Authority." and in the latter: "The Act nowhere provides that a decision of the Regional Transport Authority limiting the number of stage carriages on any specific route is final and binding on the Appellate Authority. S.64 which provides for an appeal by a person aggrieved by the refusal of a permit nowhere lays down that in deciding the appeal the Appellate Authority cannot increase the number of permits fixed by the Regional Transport Authority." 12. A different view is indicated in AIR. 1961 Allahabad 342. In that case the court said: "The Authority is empowered under S.48 of the Act to limit the number of stage carriages in respect of which stage carriage permits might be granted for a specified route or for specified routes or for specified area. S.64 does not allow an appeal against the order of the Authority limiting the number of stage carriages." and: "It follows, therefore, that the appellate authority on an appeal by a person aggrieved by the refusal of the Authority to grant him a permit, cannot refix the number of stage carriages in respect of that route." We must say, with respect, that it does not follow. 13. As indicated in AIR. 1959 SC. 851 any person who had applied for a permit and did not get it is a person aggrieved by the refusal to grant a permit and clearly comes within S.64(a) of the Act. 13. As indicated in AIR. 1959 SC. 851 any person who had applied for a permit and did not get it is a person aggrieved by the refusal to grant a permit and clearly comes within S.64(a) of the Act. The decision is also an authority for the proposition that S.64 is not concerned with defining the powers of the appellate authority, that it does not purport to do so, and that if an appeal lies under any of its clauses "that of course must be an effective appeal and the appellate authority must therefore have all powers to give the relief to which the appellant is found entitled." 14. The fact that no appeal is provided against a limitation under S.47 (3) of the Act does not affect the question. The appeals provided are by persons aggrieved and nobody can be considered as a person aggrieved until an application has been preferred and that application has been refused. 15. It was suggested that the State Transport Appellate Tribunal - mistakenly - considered itself trammelled by the judgment of this Court directing a fresh consideration (1960 KLT.1058), and that it did not exercise its own independent judgment. A reading of the order of the Tribunal makes it quite clear that it laboured under no such misapprehension. After referring to the order of the High Court, what it says - quite correctly - is: "So we are relegated to the position when the order was passed by the Regional Transport Authority, Ernakulam, under which four permits were sanctioned, one each to applicant Nos. 23, 48, 64 and 77. It is therefore necessary to consider the claims of all the applicants. 16. During the course of the hearing our attention was drawn to certain observations in the judgment of this Court in A.S. Nos. 634 and 635 of 1958 regarding the rights of a citizen to engage in the business of running stage carriages on the public roads. The observations are apparently based on AIR. 1952 SC. 192. 17. AIR. 1952 SC. 192 was placed in its proper setting in AIR. 1953 Mad. 279. In that case the Madras High Court said: "All the observations in the judgment in AIR. 1952 SC. The observations are apparently based on AIR. 1952 SC. 192. 17. AIR. 1952 SC. 192 was placed in its proper setting in AIR. 1953 Mad. 279. In that case the Madras High Court said: "All the observations in the judgment in AIR. 1952 SC. 192 read along with the subject-matter of the appeal clearly show that they define the rights of the applicants under the Motor Vehicles Act before the Constitution."emphasised the fact that though the public roads vest in the State the State holds them as trustees on behalf of the public and held that the right of a citizen to carry on a business in motor transport on public roads is within the protection of Art.19(1)(g) of the Constitution. This statement of the law was specifically approved by the Supreme Court in AIR. 1954 SC. 728. 18. We have chosen to deal with this matter in this judgment in order to allay any misapprehension that might arise as a result of the observations in the judgment in A.S. Nos. 634 and 635 of 1958. The true position - in the words of the Supreme Court in AIR. 1954 SC. 728 -is: "Within the limits imposed by State regulations any member of the public can ply motor vehicle on a public road. To that extent he can also carry on the business of transporting passengers with the aid of the vehicles. It is to this carrying on of the trade or business that the guarantee in Art.19 (1) (g) is attracted and a citizen can legitimately complain if any legislation takes away or curtails that right any more than is permissible under clause (6) of that article." 19. In the light of what is stated in Para.6 to 15 above, this appeal has to be dismissed and we do so. In the circumstances of the case, however, there will be no order as to costs. Dismissed.