SHIVAPPA,U. v. M. KRISHNA BHAT — 1982 DIGILAW 5 (KAR)

M. P. CHANDRAKANTARAJ, J. ( 1 ) THIS writ petition is directed against the judgment of the Karnataka State Transport Appellate Tribunal, bangalore, (hereinafter referred to as the 'tribunal') dated 6th Sept.- 1980 passed in Appeal No. 114/1980. ( 2 ) THE petitioner was the 2nd respondent before the Tribunal. The appeal befort the 'cribunal came to be filed by one M. Krishna Bhat who is the 1st respondent in the writ petition along with the petitioner and another who were all applicants under S 57 (2) of the Motor vehicles Act, 1939, (hereinafter referred to as the 'act') in respect of the route Man- galore to Adyanadka via Thokottu, derlakatte, Manjamadi, Mudipu, Bakrebail, saletthur, Vittal, Ukkuda, Bullerkatte, puttur, Periyalthadkha, Torankatte and moodabail for grant of a stage carriage permit. The Regional Transport Authority, DK, Mangalore, (hereinafter referred to as the 'rta') 3rd respondent herein who had opened the route, considered the applications in Subject No. 311/79-80 on 3-3 1980 and granted the permit to the petitioner, he having secured the highest number of marks. Aggrieved by the grant in favour of the petitioner, the 1st respondent-Krishna Bhat preferred the appeal before the Tribunal. The Tribunal allowed the appeal and remanded the matter for fresh disposal to the RTA. Aggrieved by that order made on 28 6-1980 the petitioner and the 1st respondent both challenged the correctness of that order in this court in WPs 10104 and 10191/1980. WP no. 10191/1980 came to be allowed by this Court and the matter was remanded to the Tribunal for fresh disposal on merits. In fact, it is useful to set out that portion of the order of Swami, J. , which is as follows :-"5. In spite of this the KSTAT has stated that scoring of the marks is not the criteria for granting the permit and on that basis it has set aside the resolution of the RTA and has remanded the matter. The KSTAT has also incidentally taken into consideration some documents produced in the appeal pertaining to an accident of a stage carnage operated by the petitioner in WP No 10191/1980 which is stated to have taken place subsequent to the passing of the resolution by the RTA. The KSTAT has also incidentally taken into consideration some documents produced in the appeal pertaining to an accident of a stage carnage operated by the petitioner in WP No 10191/1980 which is stated to have taken place subsequent to the passing of the resolution by the RTA. It is not necessary to go into the question as to whether the KSTAT was right in taking into consideration the subsequent event in as much as the order of the KSTAT requires to be set aside and the matter is to be remanded for fresh consideration on the ground already stated above. Accordingly, WP No. 10191/1980 is allowed and the order passed by the kstat in Appeal No. 114/1980 dated 28th June, 1980 is hereby quashed. The matter now stands remitted to the kstat with a direction to decide afresh the appeal on merits in accordance with law". ( 3 ) IN the result, no specific order was made by this Court in WP No. 10104/1980 as the order of the Tribunal had been quashed ia the other writ petition. On remand, the Tribunal in the present impugned judgment has reached more or less the same conclusions and remanded the matter to the RTA for disposal keeping in mind the observations made by the Tribunal. Aggrieved by the same, the petitioner, for the second time has approached this court under Art. 226 of the Constitution inter alia contending ; (1) that the Tribunal erred in not disposing of the case on merits as directed by this Court instead of remanding the matter to the 3rd respondent RTA, DK, Mangalore ; (2) that the Tribunal ought not to have taken notice of the arguments which were neither urged in the memorandum of appeal by the 1st respondent nor raised before the 3rd respondent RTA, dk, Mangalore, at the time of the hearing of the application, and (4) that the other applicant not having been made a party before the tribunal, the appeal was defective for non-joinder of necessary party and therefore it was liable to be rejected. ( 4 ) AS some facts were in dispute, the learned Government Pleader was directed to take notice for respondents 3 and 4 and to produce the records of the case which he has done. ( 4 ) AS some facts were in dispute, the learned Government Pleader was directed to take notice for respondents 3 and 4 and to produce the records of the case which he has done. In the light of the above contentions, what really falls for determination is, whether the Tribunal was justified in coming to the conclusion that there was procedural error in granting the permit to the petitioner by the RTA and therefore the matter was required to be remanded for fresh consideration. It is now useful to set out that portion of the impugned order of the Tribunal which briefly states its final conclusion. "i, therefore, hold that the order as a whole is illegal and is opposed to R. 104-A of the MV Rules and S. 47 (i) of the MV Act. Selection is based on mere eliminating in an improper way after awarding some marks and granting the permit to the survivor. I find even the procedure adopted in preparing the broad sheet is opposed to the guiding principles under R. 104-A. Therefore the entire order will have to be set aside. As I have stated above, now additional evidence is produced. But it is for the rta to consider whether it is true, whether the permit should be granted to the appellant or to the second respondent. This authority is not in a position to consider these points since the history sheets is not before me the records relating to the detection of offences, punishment etc. , are also not before me. Even the RTA has not given an opportunity to the second respondent to make an application undertaking to make arrangements for garage facilities by depositing a sum of Rs. 2,000. . . . . . . . . . . . . In the result, I set aside the impugned order and remand the case to the RTA, mangalore to reconsider all aspects of the matter u/s 47 (1) of the MV Act and r. 104-A of the MV Rules after preparing a fresh sheet as per rules and then select the permit holder. This matter will have to be considered only between the appellant and the second respondent. There is no need to consider the other applicant whose application has been rejected on the ground that he is a new entrant. This is a medium route. This matter will have to be considered only between the appellant and the second respondent. There is no need to consider the other applicant whose application has been rejected on the ground that he is a new entrant. This is a medium route. The rta should hear all the objectors if any to these applicants. Since the RTA has opened the route and selected the 2nd respondent finding that there is need, litigation should not hamper public service. Therefore the 2nd respondent grantee is allowed to operate pending disposal of the selection. In any event if the RTA considers both are incompetent then the RTA may re-notify and call for fresh applications. The matter must be disposed of within the maximum period of two months from the date of receipt of the records". ( 5 ) FROM the above it is clear, according to the Tribunal, the procedural error committed by the 3rd respondent-RTA was in not scrutinising the applications in accordance with sub-rule (iii) of R. 104-A of the Karnataka Motor Vehicles Rules, 1963, (hereinafter referred to as the 'rules') before reaching the stage of awarding marks under sub rule (iii) of the same Rule. The Tribunal also found fault with the 3rd respondent-RTA for recording that garage certificate had been produced when in fact no such certificate was found in the records. It further found fault with the 3rd respondent RTA because in the case of all the applicants, the history sheet of the applicants was neither prepared nor considered by the 3rd respondent-RTA in accordance with the mandatory requirement of sub-rule (iii) (b) of r. 104-A of the Rules. ( 6 ) MR. P. Viswanatha Shetty, learned counsel appearing for the petitioner, has strongly relied upon the resolution of the rta to point out that the RTA did follow the procedure as laid down in R 104-A of the Rules and that it was only after the process of elimination was completed the RTA proceeded to award marks under sub rule (iv) of R. 104-A of the rules. In the last but two paragraphs of the resolution, it is stated that Haji P. K. Mohidinabba was a new entrant and therefore he was not entitled to get this medium route as per sub rule (ii) (b) of R. 104 A of the Rules. In the last but two paragraphs of the resolution, it is stated that Haji P. K. Mohidinabba was a new entrant and therefore he was not entitled to get this medium route as per sub rule (ii) (b) of R. 104 A of the Rules. But that has been observed by the RTA only after the marks had been awarded and therefore no scrutiny as such took place before the stage of awarding marks reached by the RTA. He further points out that reference by the rta which observed that all the three applicants had produced the solvency certificate, income tax clearance certificate and garage certificates, should suffice to meet the requirement of having scrutinised the applications in accordance with sub-rule (iii) of R. 104-A of the Rules. But the Tribunal has found as a matter of fact that no garage certificate as required under sub-rule (iii) (d) of R. 104-A of the rules was produced. Sub rule (iii) of R. 104-A of the Rules provides for scrutiny of applications and if found to be disqualified on one of the grounds mentioned therein to reject the same. If garage certificate was not produced as required by sub-rule (iii) (d) of R. 104 A of the Rules, the RTA before disqualifying the applicant should have given such applicant an opportunity to give an undertaking in writing to make arrangement for garage facility and also obtain a deposit of Rs. 2,000 in that behalf. If it is established that no garage certificate was filed, then it leads to the irresistible conclusion that the rta did not screen the applications according to the sub-rule. No doubt, in its resolution, it has recorded something. But a perusal of the records discloses that while the other applicant (respondent) has produced the garage certificate evidencing the garage facilities which he has arranged for, the petitioner's application is accompanied only by the challans for payment of fees and deposit. The solvency certificate and the income tax clearance certificates have been produced subsequently along with a covering letter. The broad sheet prepared by the RTA for purpose of this case which is to be found at page 37 of the records shows blank at column No. 7, in so far as the petitioner and P. K. Mohidinabba are concerned, while against the name of the 1st respondent, it is noted; "the workshop arrangement at Puttur and mangalore". The broad sheet prepared by the RTA for purpose of this case which is to be found at page 37 of the records shows blank at column No. 7, in so far as the petitioner and P. K. Mohidinabba are concerned, while against the name of the 1st respondent, it is noted; "the workshop arrangement at Puttur and mangalore". This clearly indicates that there was nothing on record when the broad sheet was prepared which evidences such certificates having been produced regarding the workshop arrangement. I, therefore, must concur with the finding of the Tribunal that the RTA had not screened the applicants in accordance with sub- rule (iii) of R. 104-A of the Rules and had omitted to follow the procedure prescribed in sub-rule (iii) (d) of R. 104-A of the rules. ( 7 ) THIS apart, I am of the view on examining the scheme of the Rules that screening of applicants and their elimination for one of the disqualifications incurred by them under sub rule (iii) of R. 104 A of the Rules is a prerequisite before proceeding to award marks under sub-rule (iv) of R. 104-A of the Rules. This has not been done in the instant case. Therefore, even that conclusion reached by the tribunal deserves to be sustained. ( 8 ) IN the light of the conclusions reached by me on the procedure to be followed, it is unnecessary to notice the argument of Sri Viswanatha Sbetty that it is imperative for the RTA to grant the permit in favour of the applicant who had obtained the maximum number of marks under sub-rule (iv) of R. 104-A of the rules. ( 9 ) IT was next urged by Mr. Viswanatha Shetty that the 1st respondent had not raised these questions either before the rta or in his memorandum of appeal before the Tribunal. But it was only at the time of argument before the Tribunal, the question of scrutiny and non production of garage certificate and non-consideration of history sheet was raised which was impermissible in law. This contention should not detain me long. But it was only at the time of argument before the Tribunal, the question of scrutiny and non production of garage certificate and non-consideration of history sheet was raised which was impermissible in law. This contention should not detain me long. Though, this Court in the case of Lakshmana Reddy v. State of karnataka (1), struck down sub rule (iii) (b) of R. 104 A of the Rules as invalid, nevertheless, observed that every RTA while considering the applications for grant of a stage carriage permit, must take into account a history sheet (See para 10 of the judgment as reported in Karnataka law Journal ). In that view of the matter also, it was not only an error of procedure in not taking into consideration the history sheets but also clear case of non- compliance of the law declared by this court in so far as the RTA is concerned. Such a question of law though not specifically urged in the memorandum of appeal can always be raised as a pure question of law before the Tribunal. This is generally accepted in all proceedings in Courts and other forums let alone the Tribunal. Therefore, there is no merit in this contention. ( 10 ) THE appeal being not maintainable before the Tritunal on account of nonjoinder of parties is concerned, I think, it is well settled principle of law that the aggrieved person should prosecute the appeal only to the extent of his failure, and his grievance, and in such event, the necessary parties are only those who have caused that grievance or who have been conferred success corresponding to his failure, On the facts of this case it was not necessary to have made the other applicant Mohidinabba as a party to the appeal as he had been rejected on a totally different ground of being a new entrant and therefore not entitled to any preferential treatment. In any event, Mohidinabba himself had a right of appeal. If he did not prosecute that right, it was unnecessary for the other applicant to make him also a party to the proceedings in appeal. In any event, Mohidinabba himself had a right of appeal. If he did not prosecute that right, it was unnecessary for the other applicant to make him also a party to the proceedings in appeal. ( 11 ) BEFORE parting with this case, I must notice one other contention of Sri viswanatha Shetty i. e. , to the effect that non production of the garage certificate should not be considered as fatal to the application having regard to the decision of this Court in the case of S. A. Sheriff v. MRAT (2 ). In the said decision a Division bench of this Court held that non production of solvency certificate in accordance with R. 102 of the Rules would not be fatal and in any event that question could not be raised in the appeal once the grant had been made in favour of a person. But on a comparison of R. 102 and R. 104-A of the Rules, I am satisfied that having regard to the difference in the language, that decision is not of much assistance to the petitioner. R. 102 of the Rules does not provide for either screening or rejection, while sub rule (iii) of R. 104 A of the rules specifically provides for screening and rejection. Since the authority is required to do something positive, i am inclined to hold that compliance with sub- rule (iii) of R. 104 A of the Rules is imperative or mandatory. ( 12 ) LASTLY, as no reasons have been made out to interfere with the impugned order remanding the case for fresh consideration in accordance with law, I should reject this petition with the observation, however, that the RTA shall bear in mind the observations made by the Tribunal in regard to the opportunity to be given to the petitioner, if he otherwise qualifies, in the matter of making garage arrangements by giving an undertaking in accordance with sub rule (iii) (d) of R. 104-A of the rules and shall also bear in mind to take into consideration the history sheet of each applicant in so far as it relates to history upto the date on which the applications were last considered i. e. , on 3-3 1980. ( 13 ) SUBJECT to the above observation, the writ petition is rejected. But in the circumstances, there will be no order as to costs. ( 13 ) SUBJECT to the above observation, the writ petition is rejected. But in the circumstances, there will be no order as to costs. The learned High Court Government pleader is permitted to file his memo of appearance within two weeks from to days --- *** --- .