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1989 DIGILAW 152 (MP)

Narbada Bus Service v. Secretary, R. T. A.

1989-04-28

A.G.QURESHI, S.K.DUBEY

body1989
JUDGMENT : ( 1. ) THE petitioner is a bus operator, who is running the aforesaid business in the name and style of Narbada Bus Service. The petitioner applied for grant of a regular stage carriage permit under section 46 of the Motor Vehicles Act on the route Nasrullaganj-Ashta via Kannod-Khategaon and Gopalpur on 23-1-1989. The application is pending with the RTA, Ujjain. A copy of the application is Annexure-A. The respondent No. 2 applied for the grant of a temporary permit under section 62 (1) (c) of the Motor Vehicles Act on 8-3-1989 before the Secretary, RTA, Ujjain for the route Nasrullaganj-Ashta. The petitioner filed an objection on 7-3-1989 against the grant of the said temporary permit on the route in question in favour of respondent No. 2, inter alia contending that as the application for grant of regular stage carriage is pending under section 46 of the Motor Vehicles Act on this route, temporary permit can be granted to the respondent No. 2 in view of the provisions contained in the proviso to section 62 (1) of the Motor Vehicles Act. The Secretary, RTA on 9-3-1989 passed an order on the application that the case be put up for hearing before the RTA in its meeting to be held on 4-4-1989. However, an order was also passed on 14-3-1989 reviewing the earlier order whereby it was directed that a temporary permit be issued for one month, subject to the decision of objection. It is the order dated 14-3-1989 which has been challenged by the petitioner on the ground that the order is without jurisdiction and is passed without determining the existence of a temporary need. ( 2. ) IN reply to the show cause notice issued by this Court on the petition, the respondent No. 2 has stated that the petition has been filed against the order of Secretary, RTA, Ujjain passed on 14-3-1989 without seeking recourse to section 64-A of the Motor Vehicles Act which provides for an appeal or revision before the S:t. A. T. Therefore, in view of the existence of an alternative remedy this petition is not maintainable. It has further been averred that the order being an interlocutory order no interference is called for. It has further been averred that the order being an interlocutory order no interference is called for. It has also been stated in the reply that the respondent No. 2 had applied for the grant of temporary permit before the RTA, Ujjain on two routes i. e. Baibodi to Ashta and Nasrullaganj to Ashta. The petitioner had objected to the grant of the temporary permits, but that objection was overruled and the permits were granted to the respondent against which the petitioner did not file any appeal or revision. That is why, that order having become final the petitioner is estopped from challenging the subsequent grant of temporary permit. It has also been stated that the routes Baibodi to Ashta and Nasrullaganj to Ashta are common routes between Gopalpur and Ashta except variation of 8 kms. A temporary permit on route Baibodi to. Ashta was granted by the Secretary, RTA to the petitioner which he did not lift whereas the answering respondent lifted the permit and operated on the route. There was dispute about the timings which was also resolved vide Annexure R-3. Therefore also the petition is not tenable. A new ground has been raised that as the application for grant of permanent permit has neither been processed for published under Section 57 (3) of the Motor Vehicles Act the application for grant of permanent permit cannot be treated as a pending application. Therefore, there is no bar of the first proviso to section 62 (1) of the Motor Vehicles Act in grant of a temporary permit. Therefore, the grant is in accordance with law and cannot be said to be without jurisdiction. ( 3. ) ALTHOUGH the Tribunal has been made a party, and we do not know whether it has been served or not, but the contesting parties being before us with the consent of both the parties the matter was finally heard. ( 4. ) AS regards the first objection of the respondent about the existence of an alternative remedy, it is a settled position of law that existence of an alternative remedy is no bar to filing of a writ before this Court and this Court although in proper cases insists for exhaustion of the alternative remedy, still if the Court finds that the order challenged before it is without jurisdiction prima facie then it can interefere in an appropriate case. This matter in respect of grant of a temporary permit came for consideration before a Division Bench of this Court as far back as in the year 1961. A Division Bench of this Court in the case of Ramgopal v. National Transport Services, 1961 MPLJ Note 141 at page 55 has held that the first proviso to section 62 of the Motor Vehicles Act excludes from the operation of the enacting part cases where an application for grant of a new permit under section 46 is pending, and its effect is that during the pendency of such an application, the Regional Transport Authority has no power to grant a temporary permit for the route or area specified therein. Since it is the clear intendment of the Legislature, High Court would not be justified in giving it a limited scope solely for the reason that in case the application for a new permit pends for a long time, giant hardship may be caused to the passengers in emergent cases. In this view the Regional Transport Authority acts wholly without jurisdiction in granting a temporary permit and the High Court would be within its power to rectify the illegality by an appropriate writ. Reliance has been placed by the Court on the judgment of the Supreme Court reported in AIR 1952 SC 192 , G. Veerappa Pillai v. Raman and Raman Ltd. The existence of an alternative remedy was also considered by the same Bench and it was held that section 64-A of the Motor Vehicles Act which gave power to the State Transport Authority to revise the impugned order confers only a discretionary power on the said Authority and vests with the petitioner no legal right. Such a remedy would not be a ground for refusing to exercise jurisdiction under the Constitution. For the aforesaid proposition the Division Bench placed reliance on 1955 Nagpur Law Journal, 367 and AIR 1959 Mysore 17, M. Basha and Anr. v. C. Sultan Baig and Anr. We are in respectful agreement with the aforesaid decision of the Division Bench of this Court and hold that where the order impugned is without jurisdiction and clearly in violation of the law, this Court is empowered to entertain a writ petition directly although a discretionary power has been vested in the STAT under section 64-A of the Motor Vehicles Act. ( 5. ( 5. ) THE learned counsel for the respondent Shri Waghmare has placed reliance on the judgment of the Supreme Court in the Madhya Pradesh State Road Transport Corporation, Bairagarh, Bhopal v. B. P. Upadhyaya, Regional Transport Authority, Raipur, AIR 1966 SC 156 wherein the Supreme Court has held that the view that whenever there was a permanent need there could be no temporary need, and so temporary permit could not be granted under section 62 (c) is erroneous. There can be no dispute that the aforesaid position of law that a temporary need can co-exist with the permanent need. However, this judgment does not say that even if when as a result of a permanent need an application for grant of a permanent permit is pending before the RTA still the R. T. A. can issue a temporary permit ignoring the provisions contained in the first proviso to section 62 (1) of the Motor Vehicles Act. Therefore, this authority is of no help to the respondent. ( 6. ) ANOTHER argument has been raised by the learned counsel for the respondent that the applications for grant of permanent permit have not been invited in the instant case. Therefore, a suo motu application filed by any applicant cannot be treated as an application for grant of a temporary permit. In our opinion, this argument is also without any merit because applications are invited for a regional route after the determination of the scope by the RTA about the number of vehicles to be operated on a particular route or area. In the instant case the application is for an inter-regional route. Therefore, the provisions of section 47 (3) of the Motor Vehicles Act cannot be held to be applicable in the instant case and any person desiring a permanent permit on any inter-regional route can file an application. The Supreme Court in M/s. Shiv Chand Amolak Chand v. The Regional Transport Authority and Anr. , AIR 1984 SC 9 has laid down that an application under section 57 (8) for extension of route cannot be treated as an application for grant of a new permit and the procedure set out in section 47 (3) is not required to be followed. This decision of the Supreme Court has not held that it shall be applicable in cases where an application for grant of permanent permit on inter-regional route has been made. This decision of the Supreme Court has not held that it shall be applicable in cases where an application for grant of permanent permit on inter-regional route has been made. ( 7. ) WE are also not inclined to subscribe to the view advanced by Shri Waghmare that an application for grant of a permanent permit cannot be held to be pending unless it is processed and published for the simple reason that as soon as an application is filed before the Regional Transport Authority for grant of a permanent permit and it is not summarily rejected then it shall always be deemed to be pending unless such an application is disposed of by the R. T. A. A Division Bench of this Court in MPSRTC, Bhopal v. R. T. A. , Sagar and others, 1973 MPLJ 969 had an occasion to consider the same issue as is raised before us wherein the Division Bench has held that the wording of the proviso to section 62 (1) is very clear and unambiguous. The words "during the pendency of the application" have reference to a period of time earlier to the disposal of the application. Pendency is the state or condition of being undecided and would cover the period from the time the applications for grant of permanent permit under section 46 are received till they are disposed of under section 57. The Transport Authority has no jurisdiction to grant a temporary permit on the same route during this period. Agreeing with the aforesaid view of the Division Bench of this Court we hold that as the application for grant of permanent permit on the route in question is pending therefore, in view of the proviso to section 62 (1) of the Motor Vehicles Act a temporary permit cannot be granted on that route. ( 8. ) IT has also been brought to our notice that the petitioner himself is operating the permit on Baibodi to Ashta route although major portion of the route between Baibodi to Ashta upto Gopalpur is common to route Nasrullaganj to Ashta, still it cannot be said to be the same route, the distination from Astha being different than the route in question. However, the respondent shall also be free to make an application for grant of a temporary permit on route Baibodi to Ashta if he chooses to do so and the Regional Transport Authority shall not be debarred by virtue of this decision to grant a temporary permit on that route if the temporary need on that route exists and the respondent may be held entitled to the grant of permit. ( 9. ) IN view of the aforesaid, the petition filed by the petitioner is allowed. The order impugned granting temporary permit to the respondent No. 2 on Nasrullaganj-Ashta route is quashed. In the circumstances of the case there shall be no order as to costs.