K. Abdul Azeez v. State — 1990 DIGILAW 346 (KER)

JUDGMENT K.A. Nayar, J. 1. The original petition is filed to quash Ext. P6 judgment of the first respondent. The petitioner applied, in respect of his vehicle KLM 9162, for a regular variation and after complying with the provision of S.57 sub S.2, 3, 4 and 5, a variation has been given to the petitioner by Ext. P2. The decision is in the following terms: "Heard the applicant and the objectors, Objectors have pointed out that there is little curtailment in this proposal. However the R. T. A. has considered this aspect earlier and had allowed the temporary variation from 7-3-1989 as the need for the above variation still continued the regular variation applied for is sanctioned, overruling the objections." One of the objectors was head. Aggrieved by Ext. P2 the 4th respondent filed a revision before the first respondent. The petitioner herein objected to the revision and filed counter affidavit which is produced as Ext. P5. In the said counter affidavit it is stated that the revision petitioner did not file any representation strictly in conformity with S.57(4) of the Motor Vehicles Act, 1939 (hereinafter called the old Act). It is also stated that the revision petitioner did not serve a copy of the representation to the petitioner herein as contemplated under S.57(4) of the Motor Vehicles Act and since the revision petitioner has not filed any statutory representation, it is stated that he is not entitled to file any revision petition before the State Transport Appellate Tribunal. In short, the petitioner's objection regarding maintainability of the revision petition is on the ground that he has not filed any objection as mentioned in S.57(4) and also did not comply with the provisions of that sections. The first respondent, after hearing both the parties, came to the conclusion that the order passed by the Regional Transport Authority is vitiated. According to him, the Regional Transport Authority allowed the petitioner's application for the grant of regular variation only on the ground that the temporary variation was previously allowed. The Regional Transport Authority has necessarily to consider, independently, as to whether a regular variation, as requested for by the third respondent, is allowable according to merits and the law. In that view of the matter, it is held that the order of the Regional. Transport Authority is vitiated. 2. The Regional Transport Authority has necessarily to consider, independently, as to whether a regular variation, as requested for by the third respondent, is allowable according to merits and the law. In that view of the matter, it is held that the order of the Regional. Transport Authority is vitiated. 2. Regarding the locus standi of the 4th respondent to file the revision petition, it is stated that he is an existing operator who has a common sector with the petitioner's service. Therefore, it is held that he has locus standi to file the revision petition. In that view of the matter, he set aside the variation granted and remanded the matter for fresh consideration. He also observed that the application for regular variation has to be considered according to the provisions of the Motor Vehicles, Act, 1988. The petitioner was operating from Kozhikode to Palamadu and he sought variation by way of extension from Edakkara - Poovathipoyil curtailing the portion from Edakkara to Palamadu. The 4th respondent was operating from Kozhikode to Vazhikadavu. In short putting in algebraical term, petitioner was operating from A to B and he wanted extension from B to C which was granted. Since the petitioner was operating between A to B extension from B to C by way of variation is not possible under the Motor Vehicles Act, 1988 (New Act). Under S.80 Sub-s.(3) of the Act, 1988 by the variation termini shall not be altered. Therefore, the direction to consider the petitioner's application for variation in the light of the new Act will become useless exercise of jurisdiction as the Regional Transport Authority can only refuse the variation if it is to be considered under the new Act. The 4th respondent therefore filed a writ petition before this Court as O. P. No. 3454 of 1990 in which the petitioner was also made a party, but the same was dismissed at the admission stage itself with the direction to the Regional Transport Authority to expedite consideration and pass appropriate order within four weeks from that day. That judgment was pronounced on 6th April 1990. But as the petitioner obtained a stay of further proceedings pursuant to the remand order of the State Transport Appellate Tribunal, the Regional Transport Authority could not take any further steps pursuant to the judgment of this Court. 3. Counsel on behalf of the petitioner submitted that the judgment Ext. That judgment was pronounced on 6th April 1990. But as the petitioner obtained a stay of further proceedings pursuant to the remand order of the State Transport Appellate Tribunal, the Regional Transport Authority could not take any further steps pursuant to the judgment of this Court. 3. Counsel on behalf of the petitioner submitted that the judgment Ext. P6 is vitiated. Firstly, it is stated that a revision itself is not maintainable under the old Act. Secondly, it is submitted that even if the revision is maintainable under the old Act, the direction to be heard under the new Act is illegal and not justified. There are other sub points also raised, viz. that the State Transport Appellate Tribunal ought not have heard the revision petitioner and further the State Transport Appellate Tribunal ought not have remanded the matter. It is also submitted that the petitioner has a vested right, and therefore, the application for variation must have been directed to be disposed of under the old Act. 4. Appeal is provided under S.64 of the old Act and the revision is provided under S.64A of the old Act. S.64(1)(f) 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 within the prescribed time and in the prescribed manner, appeal to the State Transport Appellate Tribunal constituted under sub-s.(2), who shall, after giving such person and the original authority an opportunity of being heard, give a decision thereon which shall be final. Under S.64A the State Transport Appellate Tribunal may, either on its own motion or on an application made to it call for the record of any case in which an order has been made by a State Transport Authority or Regional Transport Authority and in which no appeal lies, and if it appears to the State Transport Appellate Tribunal that the order made by the STA or RTA is improper or illegal, the State Transport Appellate Tribunal may pass such order in relation to the case as it deems fit and every such order shall be final. The emphasis of the petitioner is that a revision will lie only in a case where the order is not appealable. The emphasis of the petitioner is that a revision will lie only in a case where the order is not appealable. What has to be considered is whether the order is appealable, and not whether appeal will lie against it at the instance of a person. For this purpose, the petitioner referred to the decision reported in Victor Marian v. R. T. A. Ernakulam. ILR 1984(2) Kerala 623. In that case, the learned Single Judge held that in S.64A, the exclusion is not for the reason whether an appeal has been filed or not, but for the reason whether the order is one in which an appeal lies or not. In such cases where the revisional jurisdiction cannot be exercised by reason of the limitation in the statutory provision itself there is no scope for exercise of the power of revision But the decision reported in Joseph v. S. T. Appellate Tribunal. 1977 KLT 473 is also an authority for the proposition that no person has a right to raise any objection except as provided by S.57(4). Para.5 of that decision is extracted: "It is true that the authority may take note of an objection made otherwise than under S.57; but no person has a right to raise any objection except as provided by that section. That being the position, the contention of the petitioner that he was entitled to raise objections before the R. T. A.; although he did not submit his written representation pursuant to Ext. R1 notification, is not supported by the observation of the Supreme Court. The decision of the Mysore High Court relied on by the respondent is explicit on this question. It will suffice if I read the B relevant head note in N. R. Revanna v. T. V. Mallappa AIR 1965 Mysore 258: "The opposition to the grant, contemplated by S.64(1)(f) is an opposition in accordance with law and not all opposition however made. It will suffice if I read the B relevant head note in N. R. Revanna v. T. V. Mallappa AIR 1965 Mysore 258: "The opposition to the grant, contemplated by S.64(1)(f) is an opposition in accordance with law and not all opposition however made. A person who has not made a written representation as contemplated by S.57(4) of the Act is not entitled to a hearing before the R. T. A. and if he is given a hearing by the R. T. A., either by mistake or by ignorance of law, he cannot be considered as a person who has opposed the grant and therefore he is entitled to appeal under S.64(1)(f) against the order granting permit." In N. R. Revanna v. T. V. Mallappa, AIR 1965 Mysore 258 the Division Bench of that Court laid down that under S.57(4) all representations in the matter of application for grant of stage carriage permit have to be made in writing and that too before the time prescribed in the notification. Under S.57(5), only persons who have made representations strictly in accordance with sub-s.(4) of S.57 of the Act are entitled to a hearing before the Regional Transport Authority. In view of the above provision, R. T. A. cannot hear any one who has not made a written p representation. To the same effect is the decision reported in the same volume at page 286 in Abdul Aziz v. M. S. T. A. Tribunal, AIR 1965 Mysore 286. It is held in that case that a stage carriage operator who has filed his representation under S.57(4) after the notified time, is not entitled to file an appeal under S.64(1)(f). The submission made on the basis of the above decision is that the 4th respondent has not filed any representation under S.57(4) and copy of the representation has not been given to the petitioner. Therefore the 4th respondent cannot file an appeal. The question that he did not file an appeal is not a ground for filing the revision, because the revision will lie under S.54A only against an order which is not appealable. In so far as the order is appealable, according to the petitioner, and if he did not avail the remedy, the 4th respondent is not entitled even to be heard before the authority. In so far as the order is appealable, according to the petitioner, and if he did not avail the remedy, the 4th respondent is not entitled even to be heard before the authority. He further referred to the recent decision of the Supreme Court in R. Reghuram v. P. Jayarama Naidu, AIR 1990 SC 412 to contend that the variation for all purposes is to be considered as the grant of a new permit and if that be so, the variation effected by Ext. P2 has to be considered only as a grant of a new permit. Hence, it is an appealable order. 5. Counsel on behalf of the 4th respondent submitted that the contention of the petitioner before the revisional authority was that a revision will not lie, not because it is an appealable order, but because the 4th respondent has not complied with the provision of S.57 in relation to filing objection and giving a copy to the petitioner. Had he raised the contention, viz. it was an appealable order and the revision is not maintainable, in so far as the authority to hear the appeal and revision is the same, he could have atleast filed a petition for conversion also. Since this contention has not been raised before the revisional authority, it is submitted that the contention cannot be allowed to be raised for the first time in the original petition. He also referred to the decision reported in Ram Gopal v. Anant Prasad, AIR 1959 SC 851 and submitted that S.64(1)(f) will apply only to fresh grant and the renewal and in all other aspects the revision is maintainable. He also referred to the decisions in V. G. K. Bus Service v. Kerala S. T. A. Tribunal, AIR 1960 Kerala 18 and Ram Swarup v. S.T.A. Tribunal. AIR 1970 Allahabad 182 and submitted that the revision is maintainable. He also distinguished the latest decision of the Supreme Court reported and referred to by the petitioner on the ground that it relates to a different question viz. when route is nationalised whether the variation can be given to any operator on the notified route. But I need not examine this matter in detail as the petitioner in this case had raised this question for the first time before this Court. when route is nationalised whether the variation can be given to any operator on the notified route. But I need not examine this matter in detail as the petitioner in this case had raised this question for the first time before this Court. Further it is also seen from the order of the R.T.A that the 4th respondent was an objector before the R. T. A. and there is nothing to show that the petitioner has objected to the hearing of the objection of the 4th respondent on the ground that he has not complied with S.57(4). 6. The other question arises for consideration is whether the direction to decide the question of variation afresh in the light of the new Act is valid. The petitioner submitted his application under the old Act. All formalities have been complied with under the old Act. The Regional Transport Authority has considered his application and granted the variation also under the old Act. The revision filed by the 4th respondent is also under the old Act. It is thereafter, the new Act has came into force. The petitioner was granted a regular variation. The filing of a revision against that grant will not take away the g right of the petitioner. When revision petition is allowed on the ground that necessary consideration required to be bestowed under the old Act has not been done, and for that purpose remand is made, it cannot be stated that the consideration must be under the new Act. If the new Act is applicable, then the remand itself is unnecessary as the variation cannot be granted under the new Act. In revision what the authority has to consider under S.64A is whether the order passed by the R. T. A. is improper or illegal. The order passed by the R. T. A. may be improper or illegal, only with respect to the law then in existence. Therefore, on remand the R. T. A. has to consider the legality of that order. That can only be in the light of law then stood. 7. Counsel for the 4th respondent submitted that consideration of the question whether the new or old Acts applicable will depend upon the nature of the proceedings whether it is appeal or revision. Therefore, on remand the R. T. A. has to consider the legality of that order. That can only be in the light of law then stood. 7. Counsel for the 4th respondent submitted that consideration of the question whether the new or old Acts applicable will depend upon the nature of the proceedings whether it is appeal or revision. He referred to the decisions reported in Santhosh Kumar v. R. T. A, AIR 1985 Rajasthan 130, R and P Ltd. v. Madras State. AIR 1956 SC 463 (AIR V 43); Lachmeshwar v. Keshwar Lal, AIR 1941 Federal Court 5; Manikandakumar v. Ramakrishnan and Others. 1985 KLT 1026 , C. D, M. T. E. C. S. Ltd. v. M. P. Conveyance, 1962 KLT 446 and Bansidhar v. State of Rajasthan, AIR 1989 SC 1614 for the proposition that the new act is applicable because when any change of law during the pendency of the revision the same will have to be taken into account, and the revision will have to be disposed of in the light of the decision. In fact the petitioner also relied on the decisions reported in Bansidhar v. State of Rajasthan, AIR 1989 SC 1614 in addition to Ottappalam Jawan Transport Co. (P) Ltd., v. R. T. O. Palghat 1989 (2) KLJ 455 . 8. S.217(4) of Repeal and Savings states that the mention of particular matters in that section shall not be held to prejudice or affect the general application of S.6 of the General Clauses Act, 1897 with regard to the effect of repeals. The decision first cited will show that the new act will have to be perused only to see whether there is any contrary intent. It cannot be stated that the petitioner did get a vested right for in variation. A variation has been granted to him under the old Act. For no fault of his, it is found vitiated on the ground that it is not a speaking order. The remand is for considering the matters required to be considered and there is a right vested in him to be considered under the old Act. Therefore, the consideration should be under the old Act. For no fault of his, it is found vitiated on the ground that it is not a speaking order. The remand is for considering the matters required to be considered and there is a right vested in him to be considered under the old Act. Therefore, the consideration should be under the old Act. In the light of the above, I allow the original petition to the extend that the consideration to be made by the second respondent as to entitlement for variation of the permit of the petitioner should be under the old Act. It is made clear that the 4th respondent is entitled to be heard as was done earlier by the Regional Transport Authority.