Shiv Bus Service v. R. T. A. , Jodhpur — 1980 DIGILAW 49 (RAJ)

S.K. MAL LODHA, J.—This is a petition under Articles 226 & 227 of the Constitution, by which, the petitioner seeks to quash the Resolution (Annexure-P-9) of the Regional Transport Authority. Jodhpur dated November 2, 1979 granting one temporary permit each in favour of Ravindra Singh (respondent No. 2) and Dalpatsingh (respondent No. 3) on Bagra-Sumerpur route. The petitioner has filed copies of the temporary permits marked as Annexures P-10 and P-11 dated November 13, 1979, which were granted to respondents No. 2 and 3 respectively. 2. The petitioner is an existing operator of Sumerpur to Jawal via. Joyla, Rosaliya, Athwada, Bhev, Vagin, Sugaliya, Andore, Gole route which was subsequently extended upto Mandwaria and holds one non-temporary stage carriage permit (Annexure-P-1), valid upto February 27, 1980. He was also granted one non-temporary stage carriage permit for the routes Sumerpur to Jawal via. Palri, Johila, Posalia, Athwada, Bhev, Andore, Suparna, Gole and Mandawana to Bhinmal viz. Bawli. Nowara, Jhak, Mandoli and Ramseen. The petitioner has stated that the portion of the route Ramseen to Bhinmal is not available to him. Between Jawal and Mandwaria, the portion of the route was also nationalised but the distance is hardly 8 kilometers. The R.T.A., therefore, permitted the petitioner to ply between Jawal and Mandwaria by its Resolution passed in the month of May 1978, for which, a separate slip was issued to him. Now the existing route of the petitioner is Sumerpur to Ramseen by the aforesaid vias. The copy of the permit has been filed by the petitioner marked as Annexure P-2. The meeting of the R.T.A. was held on April 20, 1978 and it considered the item relating to the opening of the route Bagra to Sumerpur. It fixed the scope of two stage carriage permits and three return services by its Resolution dated May 1, 1978. Feeling aggrieved by the order of the R.T.A., Jodhpur dated May 1, 1978, the petitioner preferred a revision petition before the State Transport Appellate Tribunal (hereinafter referred to as the STAT), which was rejected on November 20, 1978. The order passed in revision became final as it was not challenged at any subsequent stage. After the rejection of the revision, some applicants suo moto applied for the grant of non-temporary stage carriage permits in their favour on Bagra-Sumerpur route. The petitioner has filed certified copies of the applications Annexures P-4, P-5 and P-6. The order passed in revision became final as it was not challenged at any subsequent stage. After the rejection of the revision, some applicants suo moto applied for the grant of non-temporary stage carriage permits in their favour on Bagra-Sumerpur route. The petitioner has filed certified copies of the applications Annexures P-4, P-5 and P-6. On or about November 9, 1979, one of the partners of the petitioner firm came to know that two temporary permits over Bagra to Sumerpur route had been granted to respondents No. 2 and 3 as they had submitted their applications on October 27, 1979. The case of the petitioner is that after the receipt of the aforesaid two applications (Annexures P-7 and P-8) of Ravindra Singh and Dalpat Singh, the Secretary, RTA prepared a circulation note dated October 31, 1979 and thereafter, the RTA granted one temporary permit each in favour of respondents No. 2 and 3 respectively. The petitioner has stated that Sumerpur-Ramseen route is nearly 70 kilometers and out of which, 33 kilometers of the petitioners route is overlapped by Bagra-Sumerpur route. In the same way, Sumerpur to Jawal route extended up to Mandwaria which is nearly 51 kilometers in length is also overlapped by Bagra-Sumerpur route upto a distance of 33 kilometers. The petitioner has questioned the jurisdiction and legality of the Resolution of the RTA dated November 2, 1979 in pursuance of which one temporary permit each in favour of respondents No.2 and 3 on Bagra-Sumerpur route was granted. 3. A show cause notice was issued to the respondents. In pursuance of which, reply to it was filed on behalf of [respondents No. 2 and 3 on December 3, 1979. The objections taken in the reply on behalf of respondents No. 2 and 3 will be dealt with hereafter and as such they are not stated here. 4. After having the learned counsel for the parties, the writ petition was admitted on December 5, 1979. On the same day, it was ordered that the writ petition should be listed for hearing on January 5, 1980. 5. I have heard Mr. R.R. Vyas, learned counsel for the petitioner, Mr. Rajesh Balia, learned Deputy Govt. Advocate for respondent No. 1 and Sarva Shri J.G. Chhangani and B.L. Maheshwari, learned counsel for respondents No. 2 and 3. 6. On the same day, it was ordered that the writ petition should be listed for hearing on January 5, 1980. 5. I have heard Mr. R.R. Vyas, learned counsel for the petitioner, Mr. Rajesh Balia, learned Deputy Govt. Advocate for respondent No. 1 and Sarva Shri J.G. Chhangani and B.L. Maheshwari, learned counsel for respondents No. 2 and 3. 6. Learned counsel appearing for respondents No. 2 and 3 have raised the preliminary objection to the effect that the petitioner has an alternative remedy of revision under sec. 64 A of the Motor Vehicles Act, (Act No. IV of 1939) (hereinafter referred to as the Act) which was quite efficacious and as the petitioner failed to avail of the alternative remedy, extraordinary jurisdiction under Art. 226 of the Constitution should not be invoked It was submitted that the Act is a self-contained code and it provides for making applications, consideration thereof and for appeals and revisions. It was also contended in this connection that at the most, the Resolution which was passed by the RTA, in pursuance of which, temporary permits were issued could be in breach of the proviso to sec. 62(1 )(c) of the Act, and therefore, it cannot be said to be without jurisdiction. In other words, it was urged that the Resolution passed by the RTA was not void and if the petitioner felt aggrieved. it could get it set aside or modified by preferring a revision under sec. 64A of the Act and the forum of the STAT was only an appropriate one for judging its legality. My attention was drawn to the decisions of Veerappa vs. Raman & Raman Ltd. (1), Hazarimal vs. RTA (2), Moolaram vs. RTA (3), Girdhari vs. RTA (4), Smt. Shakuntala Devi vs. Transport Appellate Tribunal, Jaipur (5) and Sarajudeen vs. STAT (6). 7. For better appreciation of the preliminary objections, it will be useful to consider the contention of the learned counsel for the petitioner. He argued that during the pendency of the applications for grant of non-temporary permits, no temporary permit could be granted under S 62(l)(c) and, therefore, the impugned Resolution of the RTA is without jurisdiction. Learned counsel referred to the decisions of J.T. Co-op. He argued that during the pendency of the applications for grant of non-temporary permits, no temporary permit could be granted under S 62(l)(c) and, therefore, the impugned Resolution of the RTA is without jurisdiction. Learned counsel referred to the decisions of J.T. Co-op. Society vs. RTA (7), Abdul Gafoor vs. State of Rajasthan (8), Jai Kishan vs. RTA, Jodhpur (9), Mohammed Yunus vs. RTA (10), Mahal Singh vs. RTA (11) and Harnam Singh Bhatiya vs. STAT, Jaipur (12). 8. I have bestowed my most anxious and careful consideration to the praliminary objections raised by the learned counsel for respondents No. 2 and 3 and to the submissions made by the learned counsel for the petitioner. 9. The question that, therefore, emerges for consideration is whether the impugned Resolution of the RTA is without jurisdiction and if so, the bar of alternative remedy will stand in the way of giving relief to the petitioner. 10. Section 62 of the Act deals with making of the application for stage carriage permit. It deals with the particulars to be mentioned in the application for the stage carriage permit Section 47 provides for procedure of RTA in considering application for stage carriage permit. Section 48 provides for grant of stage carriage permits. Section 57 deals with the procedure in applying for and granting permits. It will be useful here to refer the relevant portion of Section 62 of the Act. "62. Temporary Permits. (1) A regional Transport Authority may without following the procedure laid down in Section 57, grant permits, to be effective for a limited period not in any case to exceed four months, to authorise the use of a transport vehicle temporarily:— (a) for the conveyance of passengers on special occasions such as to and from fairs and religius gatherings, or (b) for the purposes of a seasonal business, or (c) to meet a particular temporary need, (or) (d) pending decision on an application for the renewal of a permit and may attach to any such permit any condition it thinks fit. Provided that a temporary permit under this section shall, in no case, be granted in respect of any route or area specified in an application for the grant of a new permit under section 46 or section 54 during the pendency of the application: Provided, further that a temporary permit under this section shall, in no case, be granted more than once in respect of any route or area specified in an application for the renewal of a permit during the pendency of such application for renewal." 11. It is clear from the reply to the show cause notice which was filed on behalf of respondents No. 2 and 3 that the RTA considered the proposals to open a new route from Bagra to Sumerpur in its meeting which was held on April 20, 1978. The petitioner was heard at that time and thereafter, it was resolved vide order dated May 1, 1978 to open the said route and scope of two permits with daily one return service was fixed. The aforesaid resolution was assailed by the petitioner in revision but it was confirmed by the STAT by its order dated November 20, 1978. This having been done, applications (Annexures p-5 and 6) for the grant of non-temporary stage carriage permits were made and on those applications, no action appears to have been taken by the RTA. The fact, therefore, remains that the application for the grant of non-temporary stage carriage permits in respect of Bagra-Sumerpur route, which was opened and for which scope was fixed, were pending before the RTA. 12. In J.T. Co-op. Society vs. R.T. Authority (7), Dave, J. as he then was with whom Sarjoo Pd. C.J. agreed observed as under: "The meaning and purpose of the first proviso is to direct the RTA that if an application for a non-temporary permit under sec.46 of S.54 of the Act is presented for any route or area, then it should be decided expeditiously, according to law, and so long as it remains pending, no temporary permit should be given under any circumstances to the applicant for non-temporary permit or to any other person in respect of the said route or area, in the name of, or under the guise of, meeting a particular temporary need under clause (c). (Itelic is mine.) 13. (Itelic is mine.) 13. It may be mentioned that I.N. Modi, J. did not agree with the conclusion reached on the main points canvassed before them. 14. In Jai Kishans case (9), amongst others, it was held as under: "While it is true that the existence of a permanent need will not preclude the Regional Transport Authority from issuing a temporary permit, if the necessary conditions laid down in Sec. 62 of the Act are found to be there, yet in case an application for grant of a non-temporary permit, has already been filed and the same is pending then, during the pendency of such an application the Regional Transport Authority will not be competent to issue a temporary permit under cl. (c) of Sec. 62. of the Act. Once the stage is reached when an application for grant of non-temporary permit is pending before the Regional Transport Authority, the jurisdiction of the Regional Transport Authority to then issue temporary permits is taken away. (Itelic supplied). 15. In Mohammed Yunus case (supra), a preliminary objection was rai-ged that the alternative remedy of an application for revision was available to the petitioner and that as he has not availed of it, even though it was an equally efficacious remedy, the writ petition should be dismissed. In that case, the decision of Girdhari vs. RTA (supra) was considered and P.N. Singhal, J,, as he then was, repelled that argument by saying that it is well settled that the existence of a right to file a revision application does deprive the Court of the power to grant certiorari in a case where the authority concerned has acted outside its jurisdiction and that if a petitioner claims to be aggrieved by a decision made without jurisdiction, it should not matter that he has not availd the alternative remedy and has come to the Court directly. First proviso to sub-section (1) of Section 62 of the Act was considered and it was held that as several applications under sec. 46 of the Act for the grant of new permits on Jaipur-Jhunjhunu route were pending on the date on which the Regional Transport Authority made its impugned order, it had no jurisdiction to grant a temporary permit, for any such jurisdiction was expressly barred by mandatory provision of the proviso. 46 of the Act for the grant of new permits on Jaipur-Jhunjhunu route were pending on the date on which the Regional Transport Authority made its impugned order, it had no jurisdiction to grant a temporary permit, for any such jurisdiction was expressly barred by mandatory provision of the proviso. It was observed as under: "When, therefore, the Regional Transport Authority has made the impugned order without jurisdiction, and the objection of the petitioner is essentially directed against the jurisdiction of the Regional Transport Authority to grant the permit, it should not matter if the petitioner has come to this Court without first applying to the State Transport Authority for a revision of the impugned order." 16. It may however, be mentioned that in Mohammed Yunus case (supra) it so happened that even though no scope was fixed for the grant of new permits, several applications were made for the grant of non-temporary stage carriage permits thereon. 17. A similar point arose in Mahalsinghs case (supra) wherein after considering, amongst others, the decision of J.T.Co-op. Societys case (supra), Rajindar Sachar, J. took the view that as the applications were pending for the grant of non-temporary stage carriage permits, there was no jurisdiction in the respondents to grant temporary permits. The argument relating to the alternative remedy of revision was also raised. In that connection, the learned Judge observed that it could not be disputed that if an order is patently without jurisdiction, the bar of alternative remedy will not stand in the way of giving relief to the petitioner and he held that case to be a case of complete lack of jurisdiction. 18. In H.S. Bhatiyas case (supra), M.L. Jain, J. observed that the position of law as stated in S.62 is clear and admits of no doubt that when an application for a non-temporary permit is pending, no temporary permit can be granted for the same route. 19. It is thus, clear from the aforesaid decisions that the Resolution of the RTA to grant temporary permits on the route in regard to which applications for grant of non-temporary stage carriage permits were pending was without jurisdiction and when an order was passed patently without jurisdiction, then the bar of alternative remedy of revision would not stand in the way of granting relief to the petitioner in a petition under Articles 226 & 227 of the Constitution. In this view of the matter, it is not necessary to examine the authorities cited by the learned counsel for respondents No. 2 and 3 in detail. 20. In Moolarams case (3) the petitioner filed a writ petition against the order of the RTA, Bikaner allowing respondents Nos. 2 to 13 to ply an additional service between Bikaner and Salasar and re-fixing the time table without issuing any notice to the petitioner. In those facts, Jagat Narayan, J. as he then was, observed as under: "As the time table fixed by the Regional Transport Authority is a condition of the permit, an order fixing a time-table or varying it can be appealed against under S. 64(b) It was open to the petitioner to file an appeal against the order of the Regional Transport Authority giving additional timing to the operators Bikaner-Salasar route. But in the circumstances of the present case, it would be very harsh on the petitioner to dismiss his writ petition on the ground that he had an alternative remedy. For he filed this writ petition when the appeal to the Transport Appellate Tribunal was not barred by limitation. Now such an appeal is barred by limitation." 21. In Smt. Shakuntalas case (5), it was observed as under: "The grant of permit in such a case would no-doubt be illegal as being against the provisions of the Motor Vehicles Act but it would not be null and void. The Regional Transport Authority has jurisdiction to grant a permit. It is expected that it will grant it in accordance with the provisions of the Motor Vehicles Act. But if it grants it in defiance of the provision of the Act, it acts with material irregularity in the exercise of its jurisdiction but not without jurisdiction. The permit so granted is not void but only voidable. It is not a nullity and has to be challenged by filing an appeal against the grant to the Transport Appellate Tribunal. This Court will not entertain a writ petition against the grant of the permit unless an appeal has been filed before the Transport Appellate Tribunal and has filed." 22. It is not a nullity and has to be challenged by filing an appeal against the grant to the Transport Appellate Tribunal. This Court will not entertain a writ petition against the grant of the permit unless an appeal has been filed before the Transport Appellate Tribunal and has filed." 22. In this case, as stated above, on the basis of various authorities with which I have respectfully agreed, the RTA had no jurisdiction to grant a temporary permit under proviso to Section 62 (i) (c), when the applications for grant of non-temporary stage carriage permits were pending on the route in question, so it cannot be said that it was not granted in accordance with the provisions of the Act but the permits so granted were without jurisdiction. The decision of Smt. Shakuntalas case (5) is, therefore, not of any avail to respondents No. 2 and 3. As the temporary permits granted to respondents No.2 and 3 were without jurisdiction in this case, it is not necessary to examine Hazari Mals case (2). 23. Mr. Rajesh Balia, appearing on behalf of respondent No. 1 has raised an objection that the petitioner has no locus-standi to maintain the writ petition as he cannot be said to be aggrieved person against the Resolution of the RTA granting temporary permits to respondents No. 2 and 3 on Bagra-Sumerpur route. He submitted that the order of the opening of the new route and fixing of the scope became final, after dismissal of the objections of the petitioners and the order dismissing the objections having been upheld in revision by the STAT. He further submitted that the petitioner is not an applicant for non temporary or temporary permit. According to the learned Deputy Govt. Advocate, the petitioner had interest only to the extent of resisting opening of the new route and since the new route was opened and the scope was fixed and that order having become final, it cannot be said that the petitioners right was affected by the Resolution of the RTA when the temporary permits were granted. 24. The petitioner is an existing operator of Sumerpur to Jawal which was subsequently extended upto Mandawaria route and Sumerpur to Jawal, which was subsequently extended from Sumerpur to Ramseen. 24. The petitioner is an existing operator of Sumerpur to Jawal which was subsequently extended upto Mandawaria route and Sumerpur to Jawal, which was subsequently extended from Sumerpur to Ramseen. Bagra to Sumerpur route is 76 kilometers in length and it overlapped petitioners route from Sumerpur to Andore, which is nearly a distance of 33 kilometers. The petitioners route Sumerpur to Ramseen is nearly 70 kilometers, out of which, 33 kilometers of the petitioners route is overlapped by Bagra to Sumerpur route. So also the petitioners route Sumerpur to Jawal, which extends upto Mandawaria and which is nearly 51 kilometers is overlapped by Bagra to Sumerpur route upto a distance of 33 kilometers. Annexure P-10 is the temporary permit, which was granted to respondent No. 2 on Bagra-Sumerpur new route via Dudsi, Degaon, Nagani Bheetala, Sarlavas, Neechla Mera, Manadhar, Bharnoli, lass, Seaura, Naradara Chavli, Andore, Sangalia, Mew, Anthwara, Posaliya, gaon. Joyla Naya, Joyla Purana, Palri, Sheoganj, Sumerpur. Similarly Annexure P-ll is the temporary permit granted to respondent No.3 viz Bagra-Sumerpur new route via Dudsi, Deegaon, Nagani, Bheetala, Barlawas, Neechla-meda, Manadar, Ghardholi, Lass, Sewra, Naredara, Chawli, Andore, Sangalia, Mew, Anthwara, Posalia gaon, Joyla naya, Joyla Purana, Palri and Sheoganj. The applications, Annexures P-4 and P-5, were made for the grant of non-temporary permits on Bagra to Sumerpur route. Until the applications are considered and non-temporary stage carriage permits are granted, the petitioner has a right to ply the buses on the route mentioned in its permit. When the temporary permit were issued in pursuance of the Resolution of the RTA, his right has been affected. In Kota Transport Ltd vs. R.T. Authority (13), it was observed as under: "It is also contended on behalf of some of the opposite parties that some of the routes for which temporary permits have been granted are not exactly the same routes which are covered by the permits of the petitioner and as such it is argued that the petitioner has no case for coming to the Court. It may be pointed out that the routes for which temporary permits have been issued by the Regional Transport Authority in these cases are the routes which are either covered by the permits of the petitioner or for some distance they co-incide with the routes of the petitioners permits. It may be pointed out that the routes for which temporary permits have been issued by the Regional Transport Authority in these cases are the routes which are either covered by the permits of the petitioner or for some distance they co-incide with the routes of the petitioners permits. The temporary permits, therefore, in the present case have a bearing on the permits of the petitioner and the petitioner is Certainly interested in seeing that nobody is allowed to ply his stage carriages on the routes covered by his permits without a valid permit." 25. In Abdul Gafoors case (supra), it was held as under: "By virtue of grant of permits to certain operators to ply their buses upon certain routes they acquire a kind of properietary right in the transport business on the route or routes in question: and when their right is ancro-ached upon because other operators are inducted on the route, it stands to reason that the persons affected must be given an opportunity of being heard in the matter. One has, therefore, to keep in mind these considerations in construing the provisions of Sec. 68G (2) of the Act itself." (Itelic added.) 26. While following these two decisions, in Indersinghs case (supra), I took the view that the person whose interest is affected can agitate the grant of a temporary permit in revision under S. 64A of the Act provides the conditions laid down therein are satisfied. The right of the petitioner is affected by the temporary permits which were granted in pursuance of the Resolution of the RTA and, therefore, the argument of the learned Deputy Govt. Advocate that the petitioner has no locus standi to maintain the writ petition is futile. 27. From the foregoing discussion, the conclusions that emerge are (1) that the grant of temporary permits to respondents No. 2 and 3 during the pendency of the applications for grant of non-temporary permits by the RTA was without jurisdiction, (2) that the petitioner can maintain the writ petition without availing of the alternative remedy under S. 64A of the Act, and (3) that as the petitioner is an affected person, it has locus-standi to maintain the writ petition. 28. In this view of the matter, it is not necessary to examine the Resolution on merits and the other contentions raised in this regard by the learned counsel for the petitioner. 29. 28. In this view of the matter, it is not necessary to examine the Resolution on merits and the other contentions raised in this regard by the learned counsel for the petitioner. 29. The result is that I allow the writ petition and quash the impugned Resolution of the RTA (Annexure P-9) dated November 2, 1979 and so also the permits (Annexures P-10 and P-11) issued in pursuance of the Resolution (Annexure P.-9). There will be no order as to costs of this writ petition.