Hargurdas Rao Chaube v. State Transport Appellate Tribunal, U. P. , Lucknow
1985-09-20
S.K.DHAON
body1985
DigiLaw.ai
ORDER S.K. Dhaon, J. - The petitioners, the existing operators of a certain route, challenge the legality of an order passed by the State Transport Appellate Tribunal, U. P., Lucknow (hereinafter referred to as the Tribunal) dismissing their revisions as incompetent on the ground that the orders impugned in them are appealable. 2. The route involved is Etawah - Mainpuri - via - Karhal (hereinafter referred to as the route) and is covered by a notification issued under S. 68C of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act). The State Transport Authority (hereinafter referred to as the Transport Authority) on Nov. 16, 1981, in the purported exercise of powers under S. 68F(1 A) determined the need of six additional stage carriages on the route and granted three permits to the U. P. State Road Transport Corporation (hereinafter referred to as the Corporation) under S. 68F (1A) and one permit each to the respondents Nos. 3 to 5 under S. 68F (1C). Again on April 5, 7 and 8, 1982 the Transport Authority felt the need of three additional stage carriages on the route and granted three permits to the Corporation under S. 68F (1A). It also directed its secretary to continue issuing temporary permits to the respondents 3, 4 and 5 at an interval of every four months. The petitioners felt aggrieved by both the orders. Hence they preferred Revisions Nos. 124 of 1981 and 142 of 1982 before the Tribunal. 3. It appears that the petitioners had on both the occasions made written representations to the Transport Authority that there could not be any increase of the number of stage carriages on the route as adequate services were being provided thereon. Relying on S. 64(1)(f) of the Act, which provides that any person being a local authority or police authority or an association which, or a person providing transport facilities who, having opposed the grant of a permit is aggrieved by the grant thereof or by any condition attached thereto may prefer an appeal and keeping in view the provisions of S. 64A which confers the revisional power and wherein it is provided that the revisional authority can exercise jurisdiction in only those cases in which no appeal lies, the Tribunal has taken the view that the petitioners having opposed the grant of permits should have preferred appeals and not revision. 4.
4. Section 68F (1A) gives a primacy to a State Transport Undertaking (the Corporation) in the matter of the grant of a temporary permit. It provides that if the Corporation makes an application for the grant of a temporary permit to the competent authority that authority shall, if it is satisfied that it is necessary to increase in the public interest the number of vehicles operating on the route of a portion thereof, issue the temporary permit prayed for by the Corporation. Section 68F (1C) provides that if no application for a temporary permit is made by the Corporation under S.68F (1A) the competent authority may grant, subject to conditions as it may deem fit, temporary permit to any person in respect of any route or a portion thereof and the permit so granted shall cease to be effective on the issue of a permit to the Corporation in respect of a route or a portion thereof. It will be immediately seen that there is a direct link between the provisions of S. 68F (1A) and 68F (1C) and the working of S.68F (1C) is dependent upon the satisfaction of the competent authority that it is necessary to increase in the public interest the number of vehicles operating on a certain route. The power to increase the number of vehicles resides in S. 68F (1A). Furthermore, it is also apparent that the question of granting a temporary permit under S. 68F (1C) can only arise after the competent authority has felt the need of increasing the number of vehicles. The condition precedent for the grant of a permit either under S. 68F (1A) or 68F(1C) is the decision of the competent authority to increase the number of vehicles. Without increasing the number, the competent authority will have no jurisdiction in either of the situations to grant any temporary permit. An existing operator of a route which is covered by S. 68C can have a real grievance only if the number of vehicles on his route is increased. His interest remains intact so long as the number of vehicles is kept stationary. We have seen that once the number is increased, it is imperative upon the competent authority to grant a temporary permit or permits, as the case may be, to the Corporation. 5.
His interest remains intact so long as the number of vehicles is kept stationary. We have seen that once the number is increased, it is imperative upon the competent authority to grant a temporary permit or permits, as the case may be, to the Corporation. 5. Though in S. 68F(1C) the auxiliary verb shall has not been used, yet the position is no different. The substance of the matter is the same as in S.68F(lA). Obviously the Legislature has not given a mandate to the competent authority that it must grant a permit to a person other than the Corporation. This is so as in S. 68F(1C) the element of selection is inherent and the authority concerned is under an obligation to select the best of the lot desirous to obtain a temporary permit or permits. The competent authority has not been left with the discretion not to grant a temporary permit at all merely because the Corporation has not chosen to apply for a permit at all or for some even though there is need. This matter engaged the attention of the Supreme Court in the case of Smt. Praveen Ansari v. State Transport Appellate Tribunal, AIR 1981 SC 516 . The Court observed : ".........The correct approach would be that keeping in view the strength of vehicles fixed by the competent authority, the authority should first examine application for number of temporary permits made by the Corporation. If the Corporation has made application for temporary permits covering all the vacancies the matter ends there. But if the Corporation does not apply for all the permits but only for some. The inescapable conclusion is that for the remaining strength the Corporation has made no application for the temporary permits and S. 68F(1C) would be squarely attracted. In that event the State Transport Authority or the Regional Transport Authority as the case may be, will have to examine the applications for temporary permits made by persons other than the Corporation and if they are found to be competent, eligible and qualified they may have to be granted permits for the benefit of the large travelling public. That is why power to increase strength of fleet operating on the route is conferred and has to be exercised in public interest meaning transport facility to travelling public." 6.
That is why power to increase strength of fleet operating on the route is conferred and has to be exercised in public interest meaning transport facility to travelling public." 6. Could the petitioners challenge the two aforementioned decisions of the Transport Authority increasing the number of vehicles on the route by preferring appeals? The answer of this question depends upon the tenability of the view taken by the Tribunal that the two orders were appealable. I have already emphasised that the grant of a temporary permit either to the Corporation or to private operators either under S. 68F(1A) or under S. 68F(1C) is consequential upon the satisfaction of the relevant authority that there would be an increase in the number of stage carriages. The moment the decision with respect to the need of additional stage carriages falls the order of the grant of a permit automatically falls. The Legislature has in S. 68F(lA) not departed from the scheme as contemplated in Chapter IV particularly in S. 48 read with S. 47. Section 47(3) empowers a relevant authority to limit the number of stage carriages for which stage carriage permits should be granted on any specified route or area. This exercise is now popularly known as the fixing of strength of it particular route. In Mohd. Ibrahim's case, AIR 1970 SC 1542 it was observed :- "The Regional Transport Authority is required to arrive at its decision under S. 47(3) of the Act having regard to matters mentioned in S. 47(1) of the Act independent of any representation by the operators or any hearing. The deliberation as well as the decision of the Regional Transport Authority under S. 47(3) of the Act is confined to its own administrative policy and order." 7. It follows from the aforequoted passage that the fixing of the limit under S. 47(3) is an administrative Act. Section 64(1)(a) to (i) provides for an appeal in certain situations. A bare reading of these provisions indicates that the Legislature has not contemplated a right of an appeal to any person against an order passed under S. 47(3) fixing a limit on a route and that is why in Laxmi Narain v. State Transport Authority, AIR 1968 SC 410 it was held that an order passed under S. 47(3) fixing a limit on it route is revisable under S. 64A. 8.
8. In determining the number of stage carriages the Regional Transport Authority must have regard to the several considerations set out in S.47(1). The provision after cls (a) to (f) of the sub-section Requiring the Regional Transport Authority to take into consideration representations made by persons already providing passenger transport facilities by any means along or near the proposed route or area or by any association representing persons interested in the provision of the road transport facilities recognised in this behalf by the State Government or any local authority or police authority within whose jurisdiction any part or area of the route lies has no application when the Regional Transport Authority is acting under S. 47(3).See Laxmi Narain's case (supra) and Mohd. Ibrahim's case ( AIR 1970 SC 1542 )(supra). There is nothing in the scheme of S.68F(1A) so as to persuade us to take a different view and depart from the settled law as declared by Supreme Court. It has to be remembered that S.68F(1A) and S.68F(1C) were inserted in the Act by Act No. 56 of 1969 and Parliament was well aware of the view taken by the Supreme Court in Laxmi Narain's case(supra). It should, therefore be persumed that the Legislature intended that the scheme of S.47(3) should be adhered to in S.68F(1A). As a natural corollary it is not the intendment of the Legislature in S. 68F(I A) that an existing operator should have a statutory right to make a representation against the proposed increase in the number of vehicles on a particular route. If this be so even if the petitioners had made representations the same had no recognition in the eye of law and therefore; it cannot be said that they opposed the grant of permit either to the Corporation or to the respondents Nos. 3 to 5 so as to attract the provisions of S. 64(f) of the Act. 9. The marginal note to S. 47 is "procedure of Regional Transport Authority in considering application for stage carriage permit" and the marginal note to S. 57 is "procedure in applying for and granting permits". We have already seen the relevant provisions of S. 47(1). In sub-sec.
9. The marginal note to S. 47 is "procedure of Regional Transport Authority in considering application for stage carriage permit" and the marginal note to S. 57 is "procedure in applying for and granting permits". We have already seen the relevant provisions of S. 47(1). In sub-sec. (3) of S. 57 it is provided that the Regional Transport Authority shall make the application for stage carriage permit available for inspection at its office and shall publish the application or the substance thereof in the prescribed manner together, with a notice of the date before which representation in connection therewith may be submitted and the date, not being less than thirty days from such publication on which, and the time and place at which, the application and any representation received will be considered. Sub-sec. (4) of S. 57 provides that no representation in connection with an application referred to in sub-sec. (3) shall be considered unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the persons making such representation. Sub-sec. (5) provides that when any representation such as is referred to in sub-sec. (3) is made, the Regional Transport Authority shall dispose of the application at a public hearing at which the applicant and the person making the representation shall have an opportunity of being heard either in person or by a duly authorised representative. A combined reading of Ss. 47 and 57 indicates that the category or class of persons who are entitled to make a representation as contemplated in sub-sec. (3) of S. 57 is to be found in S. 47. Again a duty to consider the representation, if made. in accordance with the procedural requirements is cast on the relevant Transport Authority. The manner of making the representation and the right of a public hearing to the person making the representation is. provided in S. 57. We have therefore, a scheme wherein certain procedural rights have been created and these rights have been regulated by the statute itself. For the present controversy the procedural right of a public hearing as envisaged in sub-sec. (5) of S. 57 is regulated by the provisions as contained in sub-secs. (3) and (4) of S. 57.
provided in S. 57. We have therefore, a scheme wherein certain procedural rights have been created and these rights have been regulated by the statute itself. For the present controversy the procedural right of a public hearing as envisaged in sub-sec. (5) of S. 57 is regulated by the provisions as contained in sub-secs. (3) and (4) of S. 57. Those are that a representation must be made within a prescribed time and copies of those representations must be furnished to the particular applicant. Section 64(f), if examined in the light of the provisions as contained in Ss. 47 and 57, goes to show that the opposition to the grant of a permit as contemplated in sub-sec. (f) of S. 64 is referable to the hearing enjoined by the statute in sub-sec. (5) of S. 57. To put it differently a person who has opposed the grant of a permit in the proceedings initiated by the issue of a notification under sub-sec. (3) of S. 57 alone is entitled to prefer an appeal under sub-sec. (f) of S. 64. This is in consonance with the scheme of the Act. We may be repeating ourselves in pointing out that the Legislature in its wisdom has made only a limited class of orders falling in different situations appealable. On the other hand, the Legislature has provided that all other orders which are not appealable are revisable under S. 64A and the power and jurisdiction of the Revisional Authority are not hedged in with any limitation which are generally to be found in the revisional provisions such as S. 115 of the CPC. The revisional powers are as wide as the appellate powers and it appears that the Legislature has kept in view the legal position that a revisional jurisdiction is part of general appellate jurisdiction. 10. The petitioners. neither fell in the said category nor could they invoke the provisions of sub-sec. (f) of S. 64(1). The petitioners had no other remedy except to prefer revisions under S. 64A and they did so. The Tribunal committed a patent illegality in throwing out their revisions as incompetent, Its order is therefore liable to he quashed. 11. This petition succeeds and is allowed. The impugned order dated Nov. 4, 1982 passed by the Tribunal in so far as it relates to Revisions No. 124 of 1981 and 142 of 1982 is quashed.
The Tribunal committed a patent illegality in throwing out their revisions as incompetent, Its order is therefore liable to he quashed. 11. This petition succeeds and is allowed. The impugned order dated Nov. 4, 1982 passed by the Tribunal in so far as it relates to Revisions No. 124 of 1981 and 142 of 1982 is quashed. The Tribunal is directed to consider and dispose of the two revisions n merits and in accordance with law. The parties are directed to bear their own costs.