D. P. SHARMA v. KSTA — 1979 DIGILAW 200 (KAR)

K. A. SWAMI, J. ( 1 ) THE petitioner in W. P. No. 11891 of 1979 is an applicant for the grant of a stage carriage permit on the interstate route Bangalore to Sampanagere, lying in the states of Karnataka and tamilnadu, before the Karnataka state Transport Authority (hereinafter referred to as the KSTA ). He has made the said application on 26. 4. 1978 and the same has been notified, as per s. 57 (3) of the Motor Vehicles Act 1939 (hereinafter referred to as 'the act' ). The KSTA has also received representations, objections and also the traffic survey report. Though the matter was ready for disposal, nevertheless, it was not posted; therefore the petitioner filed an application for posting the subject for consideration. The respondent-KSTA, by its resolution dated 4/5-6-1979 in Subject No. 117/79 has resolved to defer the consideration of the application until the rales are framed by the State Government in pursuance of the amendments effected to the Act, by the Motor vehicles (Amendment) Act, 1978 (hereinafter referred to as the 'amendment Act, 1978' ). In the said resolution it has also been stated that the State Government has been moved to frame the Rules. ( 2 ) SIMILARLY, the petitioner in WP no. 11892 of 1979, is an applicant before the KSTA for the grant or a national Permit for a public carrier. This application was made in April 1979. After the filing of the application, the petitioner has acquired a new public carrier and has got it registered on 18-7-1979 as m. E. D. 5303. The application has been made in an existing vacancy in the quota prescribed by the Central government for the State of Karnataka the procedure required under Section 57 (3) of the Act, has also been completed and the application was ready for final consideration, therefore, it was taken up for consideration on 6-8-1979. On that day, the respondent has resolved to defer the consideration of the application till the Rules are framed by the State Government in pursuance of the Amendment Act, 1978. ( 3 ) THE petitioner in WP No. 11949/79 is also an applicant before the KSTA for the grant of a stage carriage permit on the existing inter State route bellary to Bangalore. The application has been notified, objections and representations have been received by the KSTA and it was ready for final disposal. ( 3 ) THE petitioner in WP No. 11949/79 is also an applicant before the KSTA for the grant of a stage carriage permit on the existing inter State route bellary to Bangalore. The application has been notified, objections and representations have been received by the KSTA and it was ready for final disposal. Accordingly, the application was posted on 4/5-6-1979 for final disposal and on that day, the KSTA has resolved to defer the consideration of the application until the State government frames the Rules in pursuance of the amendments effected to the Act by the Amendment Act, 1978. ( 4 ) IN these three petitions, the aforesaid resolution of the respondent-KSTA, postponing the consideration of applications filed by the petitioners for grant of various permits, has been challenged. The petitioners have also sought for a writ in the nature of mandamus directing the respondent-KSTA to consider their applications. ( 5 ) SHRI M. Rangaswamy, the learned counsel appearing for the petitioners in these writ petitions, submitted that the Amendment Act, 1978 though, has introduced several provisions in Ss. 47, 55 and 63 of the Act, but the said provisions will be effective only when the State Government frames the rules and there is no provision contained in the aforesaid Amendment act, 1978, or in the Act, as such prohibiting the respondent from considering the applications for grant of permits pending the framing of the rules by the State Government. Therefore, it was submitted that the resolution of the KSTA deferring consideration of the applications of the petitioners, is illegal and amounts to refusing to exercise its jurisdiction. ( 6 ) SHRI Mohammadali, the learned government. Pleader appearing for the respondent-KSTA, submitted that if the pending applications are to be considered and the permits are granted pending the framing of the Rules as per the Amendment Act, 1978, by the state Government, providing for reservation of permits for the scheduled Castes and the Scheduled tribes and to the persons belonging to economically weaker sections of the community, the very object of the amendment will be defeated. He, therefore, submitted that the respondent was justified in postponing the consideration of the applications of the petitioners. ( 7 ) IT cannot be disputed that the object of granting permits under the act, is for the public convenience and to serve the public interest in the best possible manner. He, therefore, submitted that the respondent was justified in postponing the consideration of the applications of the petitioners. ( 7 ) IT cannot be disputed that the object of granting permits under the act, is for the public convenience and to serve the public interest in the best possible manner. In this regard, the observations of the Supreme Court in the case of B. Prabhakara Rao v. Desart Panakala Rao (1) are very pertinent and the same are as follows:"the sole issue on which limited leave has been granted to him by this Court under Art. 136 lends itself to straightforward resolution once we grasp the public character of the litigation and public purpose of the jurisdiction where permits regulating the plying of stage carriages are awarded or refused. The conscience of this branch of public law is justice to the public although, in the process of adjudication private claims to carry on transport business through permits are comparatively evaluated. Public interest is the paramount consideration, while private rights, fundamental though, apparently constitute the quasi-lis for decision. In other words, thie duplex scheme of the statute is the holding of a public enquiry to determine who will serve public interest best but ordinarily activated into that enquiry by private applicants for permits". (Emphasis is supplied)FURTHER, in para 5 of the same decision it is observed by the Supreme Court as follows:"rulings galore, of this Court and the High Courts, have focussed on section 47 of the Act to emphasize that the quasi-judicial bodies entrusted with the work of issuing stage carriage permits must be conscious of the brooding presence of public interest, in the midst of the sparring contest of private applicants. A casual perusal of that provision brings home this juristic under-pinning of the jurisdiction. Against this background, we may notice the meaning of the clauses which broaden the nature of the enquiry and mark it off from a traditional civil litigation. Passengers associations, police officers, local authorities and existing operators who may have nothing directly to do with the rivalry for a permit have a place in the scheme and may make representations on a variety of matters. So also, in an appeal, the RTA itself may be heard. Passengers associations, police officers, local authorities and existing operators who may have nothing directly to do with the rivalry for a permit have a place in the scheme and may make representations on a variety of matters. So also, in an appeal, the RTA itself may be heard. Thus the considerations going into the judicial verdict are dominated by public interest: non-parties who have only to present points germane to public interest are allowed to represent their point of view. " (Emphasis supplied) in para 12 of the judgment in the above case, five propositions have been set out by the Supreme Court and out of which, the following are the two propositions:"1. Stage-carriage permits are granted for providing an efficient public transport system. 2. The adjudicatory content has dual elements - public interest in the best stage-carriage service and private title to better serve the public. " ( 8 ) THE authorities named in Chapiter iv of the Act, have a public duty to perform. The exercise of power and performance of the duty and discharge of the functions by them is to serve the public interest by providing better and efficient transport facilities to the public. Once the need for introducing a stage carriage on a particular route or routes is established and the applicant for the same satisfies the necessary requirements, the concerned authority cannot withhold, the grant of a permit. By doing so, it will be acting contrary to the public interest and thereby, the public interest will suffer inasmuch as the public will be deprived of the transport facility. As such, the statutory authority i. e. , the respondent enjoined with the duty to perform to serve the public interest cannot indefinitely postpone the consideration of the application for grant of a permit which is ready for disposal. What applies to the case for grant of a stage carriage permit will equally apply to the case for grant of a National Permit for a public carrier. ( 9 ) THE provisions contained in Ss. 47, 55 and 63 of the Act read with the amendments introduced by the Amendment act, 1978, do not make it incumbent upon the respondent to stay its proceedings or to defer consideration of the applications for grant of permits until the Rules are framed by the State government in pursuance of Ss. 47, 55 and 63 of the Act read with the amendments introduced by the Amendment act, 1978, do not make it incumbent upon the respondent to stay its proceedings or to defer consideration of the applications for grant of permits until the Rules are framed by the State government in pursuance of Ss. 21, 22 and 24 of the Amendment Act, 1978. On the contrary a reading of the provisions contained in sub-sections (2), (3), (4) and, (5) of S. 57 of the Act, do show that the Act prescribes a time limit, in the matter of procedure to be followed in applying for and granting permits. Thus, in the absence of the rules required to be framed for giving effect to the provisions contained in Ss. 21, 22 and 24 of the Act, it is open for the respondent to consider the application filed for grant of permits, inasmuch as the absence of such Rules do not in any way either bar or prevent the respondent from consideration of the application for grant of permit. Further, the absence of such Rules has not rendered the provisions relating to grant of permits contained in the Act, either inoperative or unworkable. The only effect of the provisions contained in Ss. 21, 22 and 24 of the Amendment act, 1978, is to empower the State Government to make Rules providing for reservation of permits for scheduled castes and scheduled tribes and for persons belonging to weaker sections of the community. In the absence of Ss 21, 22 and 24 of the Amendment Act, 1978, it would not have been permissible for the State Government to frame Rules providing for reservation of permits in the manner prescribed in Ss. 21, 22 and 24 of the Amendment Act, 1978. There is no provision contained in the amendment Act, 1978, that until the rules are framed providing for reservation of permits, the applications for grant of permits pending or to be made, shall not be considered. In fact, the respondent, even after the Amendment act, 1978, came into force on 19-1-1979, has gone on granting permits till June 1979. The provisions contained in Ss. In fact, the respondent, even after the Amendment act, 1978, came into force on 19-1-1979, has gone on granting permits till June 1979. The provisions contained in Ss. 21, 22 and 24 of the amendment Act, 1978, by themselves in the absence of the Rules framed by the State Government, do not at all affect the exercise of power, performance of duty and discharging of functions by the respondent as enjoined upon it by the Act. In the event of framing of the Rules by the State Government under the aforesaid provisions, the respondent will have to follow them. But, in the absence thereof, the respondent cannot abstain from performing its statutory duties as long as there is no prohibition contained in the Act, prohibiting the respondent from considering the applications for grant of permits. Thus, the respondent was not right and was not justified in deferring the consideration of the applications filed by the petitioners for grant of permits, until the Rules are framed by the State Government. It is not the case of the respondent that in the absence of such Rules, it is not at all possible to consider the applications. Even in the absence of such Rules as per the provisions contained in Ss. 47, 55 and 63 of the Act, read with the amendments, the applications for grant of stage carriage permits and public carrier permits can be considered and the permits can be granted. In this regard, it is relevant to note the relevant portion of the decision of the Supreme court in the case of Mysore State Road transport Corporation v. Gopinath (2) which is as follows:"for the proper discharge of its functions, it is necessary for the corporation to appoint officers and servants. Section 14 (2) expressly confers upon the Corporation the incidental power to appoint such officers and servants as it considers necessary for the efficient performance of its functions. S. 19 (1) (c) empowers it to provide for its employees suitable conditions of service. S. 14 (3) provides that the conditions of appointment and service and the scales of pay of its officers, and servants shall be such as may, subjet to the provisions of S. 34, be determined by regulations made under the act. S. 19 (1) (c) empowers it to provide for its employees suitable conditions of service. S. 14 (3) provides that the conditions of appointment and service and the scales of pay of its officers, and servants shall be such as may, subjet to the provisions of S. 34, be determined by regulations made under the act. S. 45 (2) (c) empowers the Corporation to frame regulations with the previous sanction of the State government prescribing the conditions of appointment, service and scales of pay of the officers and servants. If the State Government issues any directions under S. 34 relating to the recruitment and conditions of service of the employees, the Corporation must obey those directions. The conjoint effect of Ss. 14 (3) (b), 34 and 45 (2) (c) is that the appointment of officers and servants and their conditions of service must conform to the directions, if any, given by the State Government under S. 34 and the regulations, if any, framed under S 45 (2) (c ). But until such regulations are framed or directions are given, the Corporation may appoint such officers or servants as may be necessary for the efficient performance of its duties on such terms and conditions as it thinks fit. There is necessarily a time-lag between the formation of the Corporation and the framing of regulations under S. 45 (2) (c ). During the intervening period, the Corporation must carry on the administration of its affairs with the help of officers and servants. In the absence of clear words, it is difficult to impute to the legislature the intention that the corporation would have no power to appoint officers and servants and fix the conditions of service unless the regulations under S. 45 (2) (c) are framed. "similarly, in the case of T. Cajee v. U. Jormanik Sien (3), the Supreme Court while considering the provisions contained in para 19 (1) (b) of the Schedule-VI of the Constitution, held thus at para 10 ot its judgment:"the Constitution could not have intended that all administration in the autonomous districts should come to a stop till the Governor made regulations under paragraph 19 (1) (b) or till the District Council passed laws under para 3 (1) (g ). The Governor in the first instance and the District Councils thereafter were vested with the power to carry on the adminstration and that in our opinion included the power to appoint and remove the personnel for carrying on the administration. Doubtless when regulations are made under para 19 (1) (b) or laws are passed under para 3 (1) with respect to the appointment or removal of the personnel of the administration the administrative authorities would be bound to follow the regulations so made or the laws so passed. But from this it does not follow that till the regulations were made or the laws were passed, there could be no appointment or dismissal of the personnel of the administration. In our opinion, the authorities concerned would at all relevant times have the power to appoint or remove adminstrative personnel under the general power of administration vested in them by the Sixth schedule. The view therefore taken by the High Court that there could be no appointment or removal by the district Council without a law having been first passed in that behalf under para 3 (1) (g) cannot be sustained. "thus, as already pointed out, it is clear that the authorities functioning under Chapter IV of the Act, are not in any way fettered either by the provisions contained in the Act, or in the Amendment Act, 1978, from considering the applications for grant bf stage carriage or for public carrier permits until the necessary Rules are framed by the State Government under ss. 21, 22 and 24 of the Amendment act, 1978. Therefore, the resolution passed by the respondent postponing the consideration of the applications of the petitioners until the Rules are framed by the State Government is clearly illegal and it amounts to refusal to exercise its jurisdiction under the Act. Consequently, the impugned resolution dated 4/5-6-1979 passed in Subject No. 117/79 by the respondent is hereby quashed and the respondent is directed to consider the applications of the petitioners forthwith. --- *** --- .