Kerala Transport Company v. V Sankar — 1988 DIGILAW 306 (KER)

JUDGMENT V. Sivaraman Nair, J. 1. Does a revision lie under S.64A of the Motor Vehicles Act before the State Transport Appellate Tribunal against a notification? This court had answered the question way back in 1973 in the negative. The State Transport Appellate Tribunal felt that that answer was confined to the facts of that case. The Tribunal therefore, in this case, answered in the affirmative. Is the State Transport Appellate Tribunal correct in the affirmative answer is the question which I have to consider in this Original Petition. 2. A few facts before I grapple with that question. Petitioner is playing a stage carriage KRZ 3237 on the route Badagara - Perintalmanna. He thought that he could extend the service from Perintalmanna to Palghat and filed an application for a temporary permit from Perintalmanna to Palghat in continuation of the existing permit. On receipt of that application, the third respondent Regional Transport Authority issued Ext. P1 notification giving particulars of the proposed extension and intimating, that "those who have got any objection or representation in this regard may do so in writing to the Secretary, Regional Transport Authority, Palghat on or before 17-5-1988". The notification also stated, that belated objections would not be considered. The first respondent filed an objection on 16-5-1988. Normally, the Regional Transport Authority would have considered the proposal and the objections at one of its meeting to be held thereafter. The first respondent did not wait for any such meeting. He filed a revision petition on 19th May, 1988. Copy of that revision petition is Ext. P2. He stated, that he applied for a Certified copy of the notification on 16-5-1983 and on the very same day he filed the objection against the proposal He stated that "the petitioner is highly aggrieved of the impugned notification. Hence the same is challenged on the following among other grounds". The first ground was that there was no adequate publication of the notification and there was no sufficient time for other operators to file objections or representations. He had filed Ext. P3 application for stay, along with the revision petition. 3. The State Transport Appellate Tribunal passed a very curious order Ext.P4, on 24-5-1988. It is worth extracting that order: "Notice given to the Standing Counsel. Notice taken by R3. Heard both sides. Issue of permit is stayed. He had filed Ext. P3 application for stay, along with the revision petition. 3. The State Transport Appellate Tribunal passed a very curious order Ext.P4, on 24-5-1988. It is worth extracting that order: "Notice given to the Standing Counsel. Notice taken by R3. Heard both sides. Issue of permit is stayed. The R T.A. will be at liberty to consider the extension and pass order. Issue notice also. Return of notice 17-6-1988". 4. Referring to what transpired before the Tribunal at that time, the petitioner herein has stated as follows, in Para.8 of the petition: "It was submitted on behalf of the petitioner, that the revision itself is not maintainable and hence no interim relief also can be granted as per Ext. P3. It was submitted that as per the decision in O.P.No. 1184/73, it has been held that the notification is not an order. If it so, since appeal and revision are provided only against an order, the revision preferred is unsustainable in law". It is difficult to understand, how the Tribunal persuaded itself to grant an interim order before deciding the question of maintainability of the revision petition. It is more difficult to understand what the Tribunal actually wanted to prevent by an interim order. Far more curious is the order which he passed. The extract does not require any annotation. The Regional Transport Authority could consider the proposal and the objections received pursuant thereto. The Regional Transport Authority could uphold the objections. In other words, the application could be rejected, but not granted. 5. Petitioner filed O. P. No. 4284 of 1958 against Ext. P4 order. That was disposed of in Ext. P5 judgment, directing that- "the State Transport Appellate Tribunal is directed to take up and dispose of Ext. P2 revision within two weeks from today". Petitioner' who was the third respondent in the revision petition filed Ext. P6 counter affidavit, alleging two points viz., that the notification not being an order was not revisable under S.64A of the Motor Vehicles Act; and that the Regional Transport Authority not having rendered any decision against the petitioner, he could not be a person aggrieved by the issue of the notification. In support of his contentions, he produced a copy of Ext. P7 judgment in O. P. No 1184 of 1973 and Ext. In support of his contentions, he produced a copy of Ext. P7 judgment in O. P. No 1184 of 1973 and Ext. P8 judgment of the Appellate Tribunal in M V. A. A. 135 of 1982 and M. V. A. R. P, No 186 of 1982, In the former, this court had stated: "I fail to understand how Ext. P6 notification which was issued in discharge of a statutory duty could be deemed to be an 'order' for the purpose of a revision under S.64A. The 1st respondent could have dismissed Exts P9 and P10 on that short ground. On going through the impugned proceeding I do not find any legal infirmity attaching to Ext. P11, and as referred to earlier I am not deciding the question whether Ext.P5 is valid or not. The matter still rests with the 2nd respondent and it is surprising that instead of waiting for the disposal of the representations made by the petitioner under S.57(3) simultaneously other proceedings were also started". In the latter, the predecessor - Tribunal held, that- "now coming to the revision it has to be noticed that it is directed against a notification. A notification is not an order. An order alone can be challenged in a revision. The learned counsel for the third respondent relied on the unreported decision of the Hon'ble High. Court in O.P. 1184/73. It has therefore to be held that the revision is not maintainable. It is fact that the vacancy in respect of which the applications are invited under the impugned notification is no more in existence. That is a matter to be raised before the proper forum at the proper time". These observations, the former in a binding precedent and the latter in an order of a predecessor with considerable persuasive force must have cautioned the Appellate Tribunal against the exercise of the revisional power in favour of the first respondent. However, the Tribunal was persuaded to uphold the challenge against Ext. P1 notification. This is what the Tribunal held: "In the result, the impugned notification (order) is set aside and the revision is allowed. Nevertheless, it is made clear, that the Secretary will be perfectly at liberty to publish the proposal or application on the notice board and board it for consideration before the Regional Transport Authority". P1 notification. This is what the Tribunal held: "In the result, the impugned notification (order) is set aside and the revision is allowed. Nevertheless, it is made clear, that the Secretary will be perfectly at liberty to publish the proposal or application on the notice board and board it for consideration before the Regional Transport Authority". It is not easy to understated how the Tribunal persuaded itself to set aside the notification and to allow the revision. Admittedly, Ext. P1 was a notification issued by the Secretary, Regional Transport Authority, publishing the proposal on the notice Board with the intention of boarding it for consideration by the Regional Transport Authority. The Tribunal made it clear that the Secretary, Regional Transport Authority, could do that. If it could be done, why did the Tribunal interfered with Ext. P1 notification publishing the proposal on the notice board with the intention of boarding the proposal for consideration of the Regional Transport Authority'. In spite of my best efforts, I am unable to find any satisfactory answer. The only assumption which was made seems to be that the Appellate Tribunal has the power to interfere with the notification, if it called that an order, eventhough there was absolutely noting objectionable in the Secretary publishing the proposal on the notice board and boarding it for consideration of the Regional Transport Authority. 6. The manner in which the Tribunal assumed jurisdiction is far more curious. He got over Ext.P7 judgment for the reason, that that case dealt with a notification under S.57 (3) of the Motor Vehicles Act and that notification could not be treated as an order under S.64A of the Motor Vehicles Act. The reason for assuming jurisdiction, notwithstanding Ext.P7 pronouncement of this court, was that.- "Unlike S.57 (3) no notification is contemplated under S.47 (1) of the M. V. Act. So much so the observation made in the above decision are seldom applicable here". In other words, the reasoning is that, if there is a statutory provision authorising issue of a notification, that can never be an order, and therefore no revision would lie against a statutory notification. On the other band, if a notification is issued under S.47 (1) of the Motor Vehicles Act, that will be an order, because S.47 (1) does not contemplate a notification under the Act. On the other band, if a notification is issued under S.47 (1) of the Motor Vehicles Act, that will be an order, because S.47 (1) does not contemplate a notification under the Act. The second reason for assuming jurisdiction is that the word 'order' is not defined in the Motor Vehicles Act; in Collins English Dictionary (1984 Edn.) the meaning of the word "order" is given inter alia as "an instruction that must be obeyed, command, a decision or direction of a Court or a Judge". 7. The State Transport Appellate Tribunal split the notification into three as containing (1) a declaration, that the proposal for extension is going to be considered, (2) an order that objection shall be filed and (3) a decision, that objection filed after 17-5-1988 would not be considered. Even assuming that the above triplication be correct about which I have my own reservations - what was that part of Ext.P1, by which the first respondent was aggrieved? The "declaration" that the application will be considered cannot affect him, nor does the requirement that objections shall be filed before 17-5-1988, nor even the "decision" that objections filed beyond time will not be considered. He had already complied with the "order" to file objections before 17-5-1988. He cannot be a person aggrieved by that. Having filed objections before 17-5-1988, he cannot be aggrieved by the "decision", that objections filed after that date will no be considered The finding that a direction or instruction which affects the rights of parties may be commonly termed as an order under S.64 of the Act was not sufficient to invoke the revisional power. The person who invokes that power must also be a person aggrieved. I have held that the first respondent could not be, and was not in any manner aggrieved by any of the three parts of Ext.P1 notification. An assumed grievance shall not be a ground for invoking the discretionary revisional jurisdiction. That is a reservoir of power, which is meant to be exercised only in cases where the Tribunal finds that justice calls for interference. It is open to the tribunal to refuse its exercise unless the grievance is real, even if there be a technical breach committed by the subordinate authority. 8. That is a reservoir of power, which is meant to be exercised only in cases where the Tribunal finds that justice calls for interference. It is open to the tribunal to refuse its exercise unless the grievance is real, even if there be a technical breach committed by the subordinate authority. 8. The order of the Appellate Tribunal exposes an anxiety to clutch at jurisdiction, Even assuming that a notification is an order, the Tribunal has correctly noticed that only a party who is aggrieved is entitled to file a revision. The Tribunal should have tarried to consider what the grievance of the first respondent was against Ext.P1 notification. Any person was given the liberty of filing objections or representations against the proposal, which was published in Ext.P1. It was dated 10-5-1988 and the last date for filing objections/ representations was 17-5-1988 The first respondent had seen that notification on 16-5-1988. He had filed the objection on the same day. Admittedly, the proposal, which was published and the objections /representations, which were received were to be boarded for consideration by the Regional Transport Authority. no decision one way or the other, by which either the applicant or the objector or representator could be aggrieved, was taken by the Regional Transport Authority, or its, Secretary. That decision, one way or the other, was yet to be taken. In Ext.P4 interim order, the State Transport Appellate Tribunal specifically stated that the R. T. A. will be at liberty to consider the extension and pass orders. In Ext. P9 order, finally disposing of the revision petitions the Tribunal reiterated that "nevertheless it is made clear, that the Secretary will be perfectly at liberty to publish the proposal or application on the notice board and board it for consideration before the Regional Transport Authority". 9. The State Transport Appellate Tribunal has entered a finding that the petitioner is really aggrieved by these directions or such directions have infringed his rights. The Tribunal assumes that normally a person who intents to object to an application is entitled to file written objections until the date of consideration and he has a right to be heard on the date of such consideration. The Tribunal assumes that normally a person who intents to object to an application is entitled to file written objections until the date of consideration and he has a right to be heard on the date of such consideration. He assumes further, that now that the right of the petitioner is cut of by the impugned order hidden in the hide of a notification, is thus the impugned notification though termed as notification is mallyan order and the petitioner being aggrieved by such order is entitled to file a revision. The direction which the Tribunal refers is a direction or order to file objections on or before 17-5-1988, and the further observation that objections filed after 17-5-1988, will not be considered Admittedly, the first respondent had filed objections on 16-5-1988. He has no case that the Regional Transport Authority would not have considered his objections in view of any of the directions contained in Ext.P1 notification. There was absolutely no justification for the State Transport Appellate Tribunal to assume, that in spite of the fact that the first respondent had filed his objections on 16-5-1988 and such objections were to be considered by the Regional Transport Authority, there was an infringement of his rights to object to the extension by filing written objections until the date of consideration. He never waited till the matter was boarded for consideration by the Regional Transport Authority. If at the time of such consideration, the R. T. A. or its Secretary told the petitioner that his objections would not be considered, then of course, the petitioner would have been aggrieved. The S. T. A Tribunal showed an undue anxiety for discovering grievances where there could be none. It is evident, that the Tribunal was assuming jurisdiction and that too in defiance of a judgment of this court specifically and definitely holding, that revision should not be entertained against a notification which can never be an order. 10. I fail to understand the reasoning of the Tribunal, that a notification issued in accordance with the statutory provision will not be an order: but, such a notification published by the Regional Transport Authority in the absence of a statutory authorisation will nevertheless be an order. It is difficult to follow this line of reasoning and impossible to accept the conclusion, which resulted therefrom. 11. It is difficult to follow this line of reasoning and impossible to accept the conclusion, which resulted therefrom. 11. Section 47(1) of the Motor Vehicles Act provides, that a Regional Transport Authority shall also take into consideration any 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 road transport facilities recognised in this behalf by the State Government, or by any local authority or police authority within whose jurisdiction any part of the proposed route or area lies. S.47(1) thus gives a right to certain specified categories of persons to file representations and objections to and obliges the Regional Transport Authority to consider such representations. In the context of this obligation, if the Regional Transport Authority publishes a notice or a notification containing a proposal. So as to enable the persons concerned to file representations and promises consideration of such representations, it cannot held that the notification so published is not statutory and it should, therefore, be not a notification but an order. 12. I have referred to Ext. P4 interim order and the operative directions contained in Ext. P9 final order of the State Transport Appellate Authority. In the first order, the Tribunal held that it was open for the Regional Transport Authority to consider the proposal and take a decision. In the final order, what it did was to quash the notification impugned in the revision at the same time allowing the Secretary of the Authority to publish the same notification afresh on the notice board and to board the matter for consideration before the Regional Transport Authority. It is obvious, that the State Transport Appellate Tribunal was all along aware that there was no such defect in the notification as warranting interference. The Tribunal was also aware that there was no grievance, the existence of which alone justifies the invocation of the revisional jurisdiction of the Tribunal under S.64A of the Motor Vehicles Act. The Tribunal was persuaded to go far out of its way to entertain the revision petition in spite of objections to its maintainability. As I stated earlier, the Tribunal allowed the Regional Transport Authority to consider the proposal and objections and pass an order. In Ext. The Tribunal was persuaded to go far out of its way to entertain the revision petition in spite of objections to its maintainability. As I stated earlier, the Tribunal allowed the Regional Transport Authority to consider the proposal and objections and pass an order. In Ext. P6 it stated, that the Secretary may issue an identically worded notification on the notice board and board the matter for consideration by the Regional Transport Authority, The Regional Transport Authority and its Secretary proposed only that by issue of Ext. P1 notification. If there was no objection in the Secretary publishing the proposal for applications on the notice board and boarding it for consideration before the Regional Transport Authority, what was the need for the State Transport Appellate Tribunal to quash the impugned notification? He should have held, that under no circumstances could the notification be treated as an order and no relief should have been granted to the petitioner, who was not a person aggrieved by any order of the Regional Transport Authority. 13. I will go one step further. Even assuming that Ext.P1 notification could be treated as an order, the State Transport Appellate Tribunal has no jurisdiction to entertain a revision and pass interim orders/final orders unless that jurisdiction was invoked by a person who was aggrieved. Petitioner, who had filed his objections on 16-5-1988, could have urged his objections at the meeting of the Regional Transport Authority. No right of his was in jeopardy. The Appellate Tribunal should have found that its jurisdiction was invoked in an unreasonable attempt to abuse its processes. It should have been on its guard against such attempts. The Tribunal succumbed unwittingly to a deliberate attempt at abuse of its discretionary jurisdiction. 14. These findings necessarily compels me to allow this Original Petition and quash Ext P9 order of the State Transport Appellate Tribunal. I have confined myself only to the question of jurisdiction of the Tribunal. The proposal has now to be examined by the second respondent with reference to the relevant statutory provisions and materials on record. This judgment is not meant in any manner to affect the jurisdiction of the Regional Transport Authority to consider and dispose of the proposal on way or the other. 15. The first respondent, who was in no manner aggrieved by Ext. This judgment is not meant in any manner to affect the jurisdiction of the Regional Transport Authority to consider and dispose of the proposal on way or the other. 15. The first respondent, who was in no manner aggrieved by Ext. P1 invoked the revisional jurisdiction of the State Transport Appellate Tribunal, without any grievance at all. He persuaded the State Transport Appellate Tribunal to come to an absolutely wrong and unsustainable conclusion on the question of jurisdiction in total defiance of the judgment of this court bearing on the same question. This conduct of the first respondent deserves condemnation. The Original Petition is allowed and Ext. P9 is quashed. The first respondent will pay the costs of the petitioner.