REVANAPPA SANGAPPA v. RTA, BIDAR — 1978 DIGILAW 216 (KAR)

VENKATACHALIAH, J. ( 1 ) THE question referred which arises under the Motor Vehicles Act, 1939 (hereinafter referred to as the 'act') is :"if a person makes, suo motu, an application to the Regional Transport Authority for grant of a permit for a stage carriage over a new route in respect of which there is no prior determination by the Regional Trans- port Authority, under sub-section (3) of S. 47 of the Motor Vehicles Act 1939 of the number of permits to be granted over that route, should the Regional transport Authority, after determining under S. 47 (3), the number of permits to be issued over that route call for applications for permit or permits over that route or, can the Regional Transport Authority, without so calling for applications, consider and decide at its next meeting whether a permit should be granted to the person who has already made, suo motu, the application for a permit ? " ( 2 ) A brief advertence to the factual antecedents of the case may be necessary: revanappa Shangappa Motti, appellant herein was granted by the first respondent-Regional Transport Authority (R. T. A.) a permit to operate a stage carriage on the route Aurad to Bidar pursuant to the proceeding on Subject No. 4 of 1968 at the meeting of the R. T. A. held on 27-12-1968. The Karnataka Road transport Corporation, third-respondent herein, challenged the said grant in appeal 127 of 1969 before the State Transport appellate Tribunal, second respondent herein. The appellate order of the State Transport Appellate Tribunal allowing the appeal was, however, quashed by this Court in W. P. 2386 of 1970 and this Court directed the R. T. A. to consider and dispose of the appellant's application in accordance with S. 47 (3) of the Act. In the proceedings on remand, though the R. T. A. came to the conclusion that there was need of the travelling public and though if negatived the contention urged before it by the third respondent that there was a clash of timings, it, however, rejected appellant's application on the ground that appellant had, allegedly, incurred the disqualification under Rule 104 (A) (III) (b ). The R. T. A. however, accepting the route-survey report and the police report in this behalf resolved to issue permits for 4 trips on the said route,-one permit for one trip-and directed the r. T. O. to notify the route and call for applications. This order of the R. T. A. rejecting the appellant's application was again challenged before the State transport Appellate Tribunal, which, while holding the rejection unsupportable however, directed the consideration and disposal afresh of appellant's application along with the applications to be received in pursuance to the notification under S. 57 (2) of the Act inviting applications. This order made by the State transport Appellate Tribunal was challenged by the appellant before this Court in W. P. 5651 of 1964. The learned single Judge dismissed the writ petition at the preliminary hearing stage taking the view that there was no error of jurisdiction committed by the State Transport Appellate Tribunal in passing the impugned order. Appellant preferred the present writ appeal challenging the order of the learned single Judge. It is in the course of this appeal that the bench has referred the above question for the opinion of the full bench we have heard Sri H. B. Datar, learned counsel for appellant. Respondents were unrepresented at the hearing. ( 3 ) THE question referred posits 3 sequential events : (1) that there is an application 'suo motu' at the instance of an applicant for grant of a stage carriage permit over a new route respecting which there has been no prior determination under S. 47 (3) of the Act by the R. T A ; (ii) that subsequent to the making of that application the R. T. A. makes a determination under s. 47 (3) of the Act fixing the number of permits to be issued over that route ; and (iii) that notwithstanding the fact that the said determination under s. 47 (3), us to the number of permits to be issued over that route, the R. T. A. proceeds-without inviting applications for permits over that route-to consider and dispose of at its next meeting the said suo motu application on merits. The question posed is whether such a disposal would be in accordance with law. The question posed is whether such a disposal would be in accordance with law. ( 4 ) WE may now turn to the scheme of the 'act' in the matter of granting stage-carriage permits S. 42 of the Act stipulates that no owner of a transport vehicle shall use or permit the use of the vehicle in public place save in accordance with the conditions of a permit. S. 43 deals with the power of the State government to control Road Transport. S. 44 of the Act envisages the constitution of Slate Transport and Regional Transport Authorities and the powers thereof. S. 45 of the Act speaks of the mode in which and the authority to which an application for grant of a permit shall be made. S. 46 refers to what such an application should contain and set out. S. 47 read with S 57 sets out the procedure in and the relevant matters to which regard be had in the matter of granting a stage carriage permit. Sub-section (3) of S. 47 provides that a Regional transport Authority may, having regard to the matters mentioned in sub-section (1), limit the number of stage carriages generally or of any specified type for which stage carnage permits may be granted in the region or in any specified area or on any specified route within the region. Proviso to S. 57 (3) provides that if the grant of any permit upon any application 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 beyond the limit fixed under S. 47 (3), the R. T. A. may summarily refuse the application. S. 48 provides for the grant of stage carriage permits. ( 5 ) FOR purpose of answering the question referred, it has to be dealt with in three parts. The first is the aspect conditioning the jurisdiction of the R. T. A. to entertain an application for a stage carriage permit. That takes in the basic imperative-that there be an anterior determination under S. 47 (3) of the Act. The second part of the question is whether after making such a determination under S 47 (3) and before entertaining a suo motu application Spending before it the R. T A. must necessarily invite applications under the latter part of sub-sec. That takes in the basic imperative-that there be an anterior determination under S. 47 (3) of the Act. The second part of the question is whether after making such a determination under S 47 (3) and before entertaining a suo motu application Spending before it the R. T A. must necessarily invite applications under the latter part of sub-sec. (2) of S 57 of the Act, The third aspect is, if the R T. A. has the power to do so, can it be done' at the very next sitting of the R. T. A-next immediately after taking a decision under S. 47 (3) of the Act. Provisions of sub-sec. (1) and (2) of S. 57 of the Act may now be noticed :"57. Procedure in applying for and granting permils- (1) An application for a contract carriage permit or a private carrier's permit may be made at any time. (2) An application for a stage carriage permit or a public carrier's permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, or, if the Regional Transport authority appoints dates for the receipt of such application, on such dates. " ( 6 ) THE Supreme Court in b. Obliwami Naidu v. Addl. STAT Madras, AIR 1968 SC 1130 observed :" 8. On an examination of the provisions of the Act and the purpose behind Ss 47 and 57, we are convinced that before granting a stage carriage permit two independent steps have to be taken. Firstly there should be a determination by the R. T. A. under S. 47 (3), of the number of stage carriages for which stage carriage permits may be granted in that route. Thereafter applications for stage carnage permits in that route should be entertained. the R. T. A. is not competent to grant stage carriage permits for more carriages than fixed under Section 47 (3 ). . . . . It is therefore clear that the Authority has first to fix the limit and after having done so, consider the application or representations in connection therewith in accordance with the procedure laid down in S. 57. . . "it was further observed :". . . . . . . . It is therefore clear that the Authority has first to fix the limit and after having done so, consider the application or representations in connection therewith in accordance with the procedure laid down in S. 57. . . "it was further observed :". . . . The question for determination is whether the determination as to the number of stage carriages required on a route should be done at a stage anterior to that of entertaining applications for stage carriage permits or that it could be done at the time it considers applications made by operators for stage carriage permits in that route. The R. T. A. has proceeded on the basis that that'_question can be decided while considering the applications made to it for permits by operators whereas the Appellate Tribunal and the high Court have taken a contrary view. "" 5. Sub-section (3) of S. 47 if read by itself does not throw any light on the controversy before us but if Ss. 47 and 57 of the Act are read together it appears to us to be clear that the view taken by the Appellate tribunal and the High Court is the correct view. If contrary view is taken it will throw open the door for manipulations and nepotism. There may be possibility of the personality of the applicant influencing the decision of the R. T. A. on the question of need for a stage carriage permit in the route and thereby public interest which should be the main consideration while taking a decision under S. 47 (3) may suffer. . . . . . . . . "in Abdul Mateen v. Ram Kailash Pande, AIR 1963 SC 64 the Supreme Court laid down that power in the R. T A. to revise the limits under S. 47 (3) must not be confused with the power which it has when it is dealing with the grant or refusal of permit under S. 48 and that though the R. T. A. can revise the general order made by it under S. 47 (3) that revision is attributable to a power which is separate and distinct from the power that the R. T. A. exercises in dealing with the applications for individual permits. In Mohd. Ibrahim v, STAT, Madras, AIR 1970 SC 1542 the Supreme Court laid down :". . . . . In Mohd. Ibrahim v, STAT, Madras, AIR 1970 SC 1542 the Supreme Court laid down :". . . . . It is also to be noticed that the limit of number of stage carriage permits fixed by the Regional Transport Authority under S. 47 (3) of the act cannot be modified by the Regional Transport Authority when the said authority exercises the separate power of granting permits under S. 48 of the Act or even by the State Transport Authority dealing with appeals against the grant of permits. This proposition was laid down in the case of Abdul Mateen. . . . . "the connected question whether the power exercisable under S. 47 (3), to limit the number of stage carriages for which permits may be granted, is purely an administrative power and whether in exercise of that power under S. 47 (3), the R. T. A. is obliged to hear the operators or not is concluded by the pronouncement of the Supreme Court in the said Mohd. Ibrahim's case (3 ). The Supreme' court observed. 9. . . . . . We are of opinion that the Regional Transport Authority is not obliged to hear operators while exercising jurisdiction under section 47 (3) of the Act in fixing the limit of number of stage carriage permits. . . . . . " dealing with the further question as to the form and the manner in which the anterior decision in compliance with 47 (3) requires to be made, the |supreme court obberved. ". . . . . . . . . . . . . . . An order under S. 47 (3) of the Act is not a matter of mere form but of substance. When it became a question of fact as to whether the regional Transport Authority fixed limit of number of permits before the grant of permits, the State Transport Appellate Tribunal fell into the error of overlooking the substance of the matter. We are of opinion that if from records of the Regional Transport Authority it could be spelt out that the regional Transport Authority fixed the limit of number of permits for stage carriages before the Regional Transport Authority considered the applications and representations for grant of permit, the Regional Transport auihority then complied with the provisions of the statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "what emerges from a conspectus of the pronouncements of the Supreme court on point in Abdul Mateen s case (2), Jayaram Motor Service v. S. Rajarathinam, (1967) 2 SCWR 857 obliswami Naidu's case (1) and Mohd. Ibrahim's (3) is that while there should an antecedent determination anterior both in point of time and point of fact under S. 47 (3) before an application for permit is considered and that the matter is more of substance than of mere form and the finding as to the existence of such determination of the number of stage carriages for which permit may be granted under S. 47 (3) of the Act can in appropriate circumstances and on the basis of the material available on record be a matter of and be based on inference. ( 7 ) THE question next to be considered is whether where an application for giant of permit over a new route respecting which there has been no prior determinstion under S. 47 (3) has been made by an applicant 'suo motu' and where such a determination is made by the R. T. A during the pendency of such an application the R. T. A. before it can entertain that 'suo moto' application, is bound to have recourse to and invite applications under the latter part of S. 57 (2) of the Act. The answer to this question turns upon the scope of Ss. 47, 48 read with S. 57 of the Act. An analysis of the relevant provisions in chapter IV of the 'act' would show that the only limitation on the power of the r. T. A to grant a stage carriage permit under S. 48 of the Act is that the R. T. A. must determine the number of s'age carriages for which permits may be granted as required by S. 47 (3) of the Act before it can embark upon the consideration of the merits of the applic ttions and the representat ons against them. S. 57 (2) of the Act, requires that application for a stage carriage permit be made not less than six weeks before the date on which it is desired that the permit shall take effect, or if the Regional Transport Authority aopoints the dates for the receipt of such applications, on such dates. S. 57 (2) of the Act, requires that application for a stage carriage permit be made not less than six weeks before the date on which it is desired that the permit shall take effect, or if the Regional Transport Authority aopoints the dates for the receipt of such applications, on such dates. S 57 (3), inter-alia, provides that on receipt of such application the same be caused to be made available for inspection and be published in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the time and place at which the application and representations would be considered. S 57 (3) refers to both kinds of applications-those made suo motu under the first part of S. 57 (2) as well as those made in response to a notification inviting applications under the second part of that sub-section A scrutiny of the provision of S. 47 (3) read with S. 57 (2) of the Act does not compel or justify the extreme view that a suo-motu application for grant of permit filed before the determination under S. 47 (3), should be considered along with the applications to be received purs ant to a notification that may be issued under the latter part of S 57 (2 ). The scheme of these provisions do not seem to impose any such restriction on the R. T. A. It is open to the R. T. A to adopt such a course; but the R T. A. does not seem bound so to do. Indeed, issue of a notification inviting applications and consideration of the pending application a'ong with the applications received pursuant to that notification may be a very desirable course. As pointed out by the Supreme Court although in a different context pertoining to the imperative requirement of a decision' under S. 47 (3) being independent of and anterior to a decision on the merits of the application under S. 48 (1) that the operator who happens to apply for the route first will be in a commanding position, and the R. T. A. will have no opportunity to choose between the competing operatois and hence public interest might suffer (See AIR1969 S. C. 1130, paras 5,6 and 7 ). Prudence and propriety and considerations of promotion of public interest might well require and persuade the R. T. A. that applications be invited and the pending application disposed of along with applications so received in response to notification inviting applications. But the question is whether a disposal of a pending application independently and not along with applications to be so received in response to the notification is, strictly speaking, illegal or without jurisdiction. There seems to be nothing in the language of Ss 47, 48 and 57 which compel such a view, however salutary the result of that view might be. A contrary view would lead inevitably to the position that every suo motu application would only serve to constitute the cau e or genesis of a notification inviting applications and cannot, itself be considered at all on merits except along with applications to be so received in response to the notification. Such a limitation on the jurisdiction of the R. T A. does not, having regard to the relevant provisions of the Act, seem to be contemplated or intended by the statute. The contrary view would mean that, for all practical purposes, no application filed by an applicant, suo motu can culminate in a grant inasmuch as before such an application is entertained there should first be a determination under S. 47 (3) which in turn according to this view must necessarily involve inviting of applications. We see no warrant in the language of the statute to so limit the jurisdiction of the R. T. A. This view also receives support from the following observations of this Court in lakshminarasinha Iyengar v R. T. A Bangalore, 1963 2 Mys. LJ 65". . . . . . . . If the Regional Transport Authority published that application under sub-section (3) of S. 57 and notified the date and place of hearing and afforded the prescribed opportunity for persons to submit representations against it, whether it was possible for the Regional Transport authority to defer the decision on the application so that it might invite applications under the second part of sub-sec. (2) of S. 57, is the question arising for consideration in this case. It seems to me that it is not possible for the RTA to do so. . . . . . . . . (2) of S. 57, is the question arising for consideration in this case. It seems to me that it is not possible for the RTA to do so. . . . . . . . . once an application is properly presented and that application is published under s. 57 (3), what the Regional Transport Authority is bound to do is to take the steps envisaged in the sub-sections appearing after sub-sec. (3) of S. 57 and to dispose of the application under sub-sec. (5 ). " ( 8 ) THIS takes us to the question whether the consideration of an application for grant of a permit could immediately follow the decision taken under S 47 (3) of the Act and whether the R. T. A- can entertain an application at its next sitting. This deals with the mechanics of procedure. The law is that the decision under S 47 (3) which is essentially a decision as to administrative policy must be anterior, both in point of time and in fact, to the decision to grant or reject an application for permit. The two decisions should be distinct and disassociated with each other. Tha extent of the interval of time separating the two may be immaterial, so long as the two decisions were kept apart from the question as to who should be granted permit. We must, however hasten to add that the first decision should be determined in the light of only such matters as were relevant to it and not with an eye on the number of applications before it or the persons who made those applications. Our view receives support from the decisions of the Allahabad High Court in Shiv Singh v. State, AIR 1969 All 14 . in which it was observed :"11. It is true that the increase in the number of vacancies and the grant of permits were both done by the Regional Transport Authority at the same meeting and its decisions in regard to both these matters were incorporated in the same resolution. in which it was observed :"11. It is true that the increase in the number of vacancies and the grant of permits were both done by the Regional Transport Authority at the same meeting and its decisions in regard to both these matters were incorporated in the same resolution. But the question as to whether the number of stage carriages for which permits were to be granted should be increased was kept apart from the question as to who should be granted permits, and the former question was determined not only prior to the second question but also in the light of only such matters as were relevant to it. The fact that both these questions were considered and decided at the same meeting an I the decisions were incorporated in the same resolu- tion did not, therefore, render the decision illegal. . . . . "if the two decisions, one under S. 47 (3) and the other on the merits of the application are independent and mutually exclusive, then the requirements of the law are satisfied and the interval of time intervening between the two, by itself, assumes no materiality. We, therefore, hold that if the requirement that the two decisions be really independent is satisfied, the R. T. A. can deal with the merits of an application at its next sitting. ( 9 ) IN the result, for the reasons stated above, our answer to the question referred is:"if a person makes, suo moto an application to the R. T. A. for grant of a permit for a stage carriage over a new route in respect of which there is no prior determination under S. 47 (3) of the Act, and thereafter the r. T. A makes a determination under S. 47 (3), it will not be legally impermissible for the R. T. A to consider and decide, at its next sitting, whether a permit should be granted to that person without inviting applications. "the question referred is answered accordingly. --- *** --- .