JUBLA KUMAR JOTHI v. STATE TRANSPORT AUTHORITY — 1994 DIGILAW 131 (ORI)

G. B. PATNAIK, J. ( 1 ) THE question of law involved in both these writ applications being common they were heard together and are being disposed of by this common judgment. An interesting question of law arises with regard to the procedure for hearing applications for grant of temporary permits on a specified route, namely, whether all the applications made for grant of temporary permits in a route are required to be considered together and the permit granting authority commits any error in not disposing them of together and secondly, whether in the present two cases, on the facts and circumstances, propriety demanded consideration of all the applications, for grant of temporary permits together. ( 2 ) THE petitioner in OJC No. 2726/ 94 was an applicant for grant of a temporary permit on an inter-State route Narasinghpur to Calcutta and he filed his application for grant of such permit before the S. T. A. , Orissa on 3012-93. Though an application for grant of temporary permit is required to be disposed of within 4 days under law, no action was taken on the petitioner's application and whenever he approached the authority he was told that he will be intimated the date on which his application will be considered. The petitioner received a notice on 4-3-94 signed by the under Secretary. S. T. A. , Orissa whereunder he was directed to appear before the Chairman, S. T. A. , opposite party No. 2 on 15-3-94 at I1 a. m. for consideration of his application for temporary permit on the aforesaid inter-State route. The petitioner appeared before the Chairman, S. T. A. on 15-3-1994 through his Advocate but his application was not taken up for hearing and on the other hand, opposite party No. 2 took up the applications of some other applicants for consideration regarding the grant of temporary permit on the self-same inter-State route. The petitioner was informed on 15-3-1994 that his application for grant of temporary permit on the inter-State route Narasinghpur to Calcutta would be taken up on 2-4-1994, as there was no time to hear all the applications on that date. The petitioner was informed on 15-3-1994 that his application for grant of temporary permit on the inter-State route Narasinghpur to Calcutta would be taken up on 2-4-1994, as there was no time to hear all the applications on that date. The petitioner was then served with a registered notice dated 18-3-1994 whereunder he was informed that the hearing of his application has been adjourned to 2-4-1994 at 11 a. m. before the Chairman, S. T. A. and this notice was received by the petitioner on 23-3-1994. The petitioner, however, learnt that the Chairman, S. T. A. has decided to grant temporary permit in favour of opposite parties 3 and 4 for the aforesaid inter-State route on 15-3-1994 and, therefore, the petitioner approached this Court in O. J. C. No. 2471 / 94. That writ application was disposed of by this court at the admission stage whereunder this Court observed that there was no justification for the petitioner to apprehend that his application for permit would not be considered. The said order was passed after hearing the counsel for the petitioner as well as the learned Standing Counsel for the department. The petitioner, however, came to know that the permit granting authority has already granted permit in favour of opposite parties 3 and 4 on the aforesaid interstate route. In the meantime the hearing that was fixed to 2-4-1994 stood adjourned to 12-4-1994 and since the permit granting authority had granted two temporary permits in favour of opposite parties 3 and 4, the petitioner thought that the hearing of his application on 12-4-1994 is a futile exercise. He, therefore, filed the present writ application on 8-4-1994. The petitioner avers in the writ application that under law, all applications pending at a given point of time for grant of permits are required to be considered together and in the context non-consideration of the petitioner's application on 15-3-1994 and granting permits to opposite parties 3 and 4 on that date vitiates the decision particularly when the petitioner was served with a notice by the permit granting authority to appear before him on 15-3-1994 at 11 a. m. ( 3 ) THE Under-Secretary to the State Transport Authority has filed a counter affidavit on behalf of opposite parties 1 and 2. The stand taken by them is that opposite parties 3 and 4 had submitted an application for grant of temporary permit of inter-State route of Narasinghpur to Calcutta in October, 1983 and permits had been granted to them on 21-2-1993. But those permits had not been issued on account of an interim order issued by the High Court in O. J. C. No. 134/ 89. When that writ application was disposed of finally on 27-12-1993, it was observed by the court that grant of temporary permit must be in accordance with law. Thereafter opposite party No. 2 by order dated 31-12-1993 confirmed the temporary permit granted in favour of opposite parties 3 and 4 and fixed the case to 10-1-94 for hearing in the matter of fixation of timing but before issuance of the permits, two other writ applications were filed which were registered as O. J. C. Nos. 146 and 286 of 1994. As well as opppsite parteies 5 and 6 in OJC No. 286/94 and opposite parties 6 and 7 in fixing a date of hearing in the matter of grant of temporary permit and opposite pary No. 2 was directed to appose of the application for temporary permit by passing a reasoned order. This Court had also observed that one Ramesh Chandra Mallik has filed M. V. Revision No. 1/84, and the revision case should be taken and opposite party No. 4 was called upon to dispose of the matter within two months from the date of the order and it was further directed that while disposing of the application for grant of temporary permits, the petitioners in two writ applications, namely, OJC No. 146/ 94 and 286/ 94 as well as opposite parties 6 and 7 in OJC No. 146/94 and opposite parties 5 and 6 in OJC No. 286/94 who were grantee of temporary permits should be heard along with said Ramesh Chandra Mallik and the matter would be disposed of by a reasoned order. Since the present petitioner was neither one of the opposite parties to the aforesaid two writ applications nor he had filed any revision against the order granting temporary permit, he was not required to be heard along with others in accordance with the direction of this court in O. J. C. Nos. 146 and 286 of 1994. Since the present petitioner was neither one of the opposite parties to the aforesaid two writ applications nor he had filed any revision against the order granting temporary permit, he was not required to be heard along with others in accordance with the direction of this court in O. J. C. Nos. 146 and 286 of 1994. It was further averred that when the matter relating to grant of temporary permit was fixed to 15-3-1994 for fresh hearing in accordance with the directions of this court in OJC Nos. 146 and 286 of 1994, coincidentally the petitioner was also noticed who had filed an application on 30-12-1993 for the self-same. route of Narasinghpur to Calcutta. It is also the further stand that since it is not a requirement of law that all applications for grant of temporary permits on a specified route should be heard together and since in accordance with the judgment of this Court in OJC Nos. 146/94 and 286/ 94 the petitioner was not required to be heard along with others to implement the decision of this Court in the aforesaid two writ applications, the others were heard and decision was taken and thereafter the petitioner's case was considered indepedently and in the meantime decision has been taken not to grant temporary permits to the petitioner. It has also been contended that in view of an alternative remedy available to the petitioner under Section 90 of the Motor Vehicles Act to file a revision, this Court should not invoke its extraordinary jurisdiction. ( 4 ) THE opposite parties 3 and 4 have filed two separate counter affidavits but almost taking the same stand as that of the opposite parties 1 and 2 and it is their contention that their application for grant of temporary permit is under consideration since October, 1993 and the petitioner's application for grant of temporary permit is dated 30-12-1993 and, therefore, that application could not have been considered along with the applications of opposite parties 3 and 4. ( 5 ) THE petitioner in OJC No. 2725/94 applied for grant of a temporary permit on the inter-State route of Kakatpur to Calcutta on 30-11-1993 and he was served with notice by the Under Secretary, S. T. A. to appear before the competent authority on 15-3-1994 for consideration of his application for temporary permit. ( 5 ) THE petitioner in OJC No. 2725/94 applied for grant of a temporary permit on the inter-State route of Kakatpur to Calcutta on 30-11-1993 and he was served with notice by the Under Secretary, S. T. A. to appear before the competent authority on 15-3-1994 for consideration of his application for temporary permit. He appeared before the authority on that date but he was informed that his matter would be taken up later. On 15-3-1994 the opposite party No. 2 took up the application of opposite parties 3 and 4 and intimated the petitioner that his application would be taken up on 2-4-1994. The petitioner was served with a notice dated 18-3-1994 intimating thereunder that his application would be taken up on 2-4-1994. But before that date, on 26-3-1994, the Chairman, S. T. A. , opposite party No. 2 took a decision to grant temporary permit on the aforesaid inter-State route without considering the petitioner's case. The petitioner's case was not taken up for hearing on 2-4-1994 and he was intimated by letter dated 29-3-1994 that his matter has been adjourned to 12-4-1994. He, therefore, filed a writ application on 31-21994 bearing OJC No. 2471/94. But this court observed that there is no justification for petitioner's apprehension that during the pendeency of consideration of their applications for temporary permit, others should be granted temporary permit without consideration of the petitioner's application. Though this Court disposed of the matter on 31-3-1994, at the admission stage with the aforesaid observation, on the very date, temporary permit was issued in favour of opposite party No. 3 and on 2-4-1994 another temporary permit was issued to opposite party No. 4. The petitioner, therefore, approached this Court on 11-4-1994 challenging the orders in favour of opposite parties 3 and 4 on the self-same grounds as the petitioner in OJC No. 2726/94. ( 6 ) IN this case also a counter affidavit has been filed by opposite parties 1 and 2 namely, the permit granting authority taking a similar stand as in OJC No. 2726/94 and the opposite party No. 3 has also filed a counter affidavit broadly taking the stand that hi; application for grant of temporary permit it the route Kakatpur to Calcutta was dated 20-10-1993 and the petitioner's applicatior for temporary permit in the route is dated 31-12-1993. Therefore, it was not necessary on the part of the authority to consider them applications together. It was also stated in the counter affidavit that in view of the direction; of this court in OJC Nos. 146 and 286/92 disposed of on 2/02/1994, the State Transport Authority was not required to consider and dispose of the petitioner'; application together with the application; filed by opposite parties 3 and 4 and therefore, there has been no infirmity with the decision of the permit granting authority. It is also averred that though the permit granting authority has been granting temporary permits in favour of opposite parties 3 and 4 buy each time it is being frustrated at the behest of some operators who had permanent stage carriage permits to ply on the route and it is further averred that thers is no requirement o1 law that all applications for grant of temporary permits are to be disposed of simultaneously. ( 7 ) PURSUANT to the direction given by this court to produce the records of the permit granting authority, the learned Standing Counsel produced the records before us and the records reveal that the applications of the petitioners in both the writ applications for grant of temporary permit has been rejected on a finding that there is no clear indication for temporary need and there is no further need for grant of temporary permit after issue of temporary permits to the above mentioned stage carriage obviously referring to the permit granted in favour of opposite parties 3 and 4 in both the writ applications. 7a. In view of the rival stand of the parties, the following questions arise for our consideration: (1) Whether all applications for grant of temporary permits in a specified route are required under law to be disposed of after consideration together; (2) Even if it is not required under law to be disposed of together, whether in the facts and circumstances of the present case, propriety demanded consideration of all applications together (3) Whether the directions given by this Court in OJC Nos. 146 and 286 of 1994 debar the permit granting authority from considering the petitioners' applications along with applications of opposite parties 3 and 4 and others whose cases were directed to be considered together by this Court; and (4) Whether availability of an alternative remedy by way of revision would stand as a bar in entertaining the writ application and issuing appropriate directions. ( 8 ) BEFORE answering the aforesaid question, it is appropriate to bear in mind that in the inter-State route from different places in Orissa to Calcutta several operators are operating on the basis of permanent stage carriage permits granted by the S. T. A. Orissa and counter-signed by the S. T. A. , West Bengal. Though some discussions were held between the representatives of the State Transport Authorities of the two States, whereunder it was felt that the number of stage carriage permits should be increased, but as no decision in accordance with law has been taken so far, in asmuch as no agreement between the two States has been entered into within the ambit of Motor Vehicles Act, 1988, it has not been possible to consider the question of grant of permanent stage carriage permits. But in view of the existence of need for larger number of vehicles on the route, applications for grant of temporary permits have been granted. It is also an undisputed position of law that even in the absence of reciprocal agreement between the two States, S. T. A. Orissa is competent to grant temporary permits subject to counter signature by the S. T. A. , West Bengal if the condition precedent for grant of' "uch temporary permits contained in Section 87 are satisfied. With these background, we would now examine the questions posed by us for our consideration and answer the same. ( 9 ) SO far as the first question is concerned, namely, whether the permit granting authority is required under law to dispose of all applications for grant of temporary permits in a specified route together, it depends upon an analysis of the provisions of the Act and the rules made thereunder. Section 87 of the Motor Vehicles Act, 1988 deals with the question of grant of temporary permits and Section 80 is the procedure in applying for and granting permits. Section 87 of the Motor Vehicles Act, 1988 deals with the question of grant of temporary permits and Section 80 is the procedure in applying for and granting permits. Under Section 80 of the Act an application for a permit of any kind may be made at any time. Under Section 87 of the Act. which is the specific provision for grant of temporary permits, the Regional Transport Authority as well as the State Transport Authority are empowered to grant permits to be effective for a limited period which in no case shall exceed four months, without following the procedure laid down under Section 80, if any of the conditions mentioned in clauses (a) to (d) are satisfied those conditions being for convenience of passengers on special occasions like fair and religious gatherings or for the purpose of a seasonal business or to meet a particular temporary need or pending decision on an application for the renewal of a permit. Sub-section (7) of Section 88 provides that notwithstanding anything contained in sub-section (1) of Section 88, the Regional Transport Authority of one region may issue a temporary permit under Section 87 to be valid in another region or State with the concurrence given generally or for the particular occasion of the Regional Transport Authority of that other State as the case may be. Applications for grant of temporary permit on an inter-State route are therefore required to be. made and disposed of in accordance with Section 87 read with subsection (7) of Section 88. Under the Orissa Motor Vehicles Rules, 1993 framed in exercise of powers conferred under Sections 28, 65, 96, 111 and 138 of the Motor Vehicles Act, 1988, the procedure for making an application and the manner in which those applications are to be dealt with have been indicated in Rule 87. Sub-section (6) of Rule 84 of the aforesaid Orissa Motor Vehicles Rules provides that an application for temporary permit under clauses (a) and (b) of sub-section (1) of Section 87 shall if it is received complete in all respect be disposed of as far as possible within four days from the presentation and in cases falling under clause (c) of sub-section (1) of Section 87, necessary steps for initiating preliminary proceeding shall be taken within 5 days of the receipt of the application and shall be dispose of within 15 days thereafter. A combined reading of the provisions contained in Section 87 of the Act and sub-rule (6) of Rule 84 of the Rules make if clear that it is not a requirement of law that all applications for grant of temporary permits are to be disposed of together in respect of a specified route. The applications for temporary permits are made not in pursuance of any advertisement issued by the authority but by each of the applicants on the existence of any particular need as contained in different clauses of sub-section (1) of Section 87 -of the Act. Since applications are not required to be made within a specified date and are made at different points of time and under law applications are required to be disposed of within 4 days from the date of the application if such application is covered by clauses (a) and (b) and within 15 days, if the application is covered by clause (c) of subsection (1) of Section 87, it is difficult for us to hold that all such applications for grant of temporary permits on a specified route are required under law to be disposed of together. ( 10 ) MR. Palit for the petitioner in OJC No. 2726/94 and Mr. Routray for the petitioner in OJC No. 2725/94 relying upon the observations made by the Patna High Court in the case of Daib Dayal Tewari v. Chairman South Bihar Regional Transport Authority, Patna, AIR 1979 Pat I contended with vehemence that all applications for grant of temporary permits are required to be disposed of simultaneously. We are unable to accept the said contention as a proposition of law and the Patna decision is not to that effect. The said Patna case was in relation to an application for grant of temporary permit under Section 62 of the Motor Vehicles Act, 1939 and what was held in that case was that existence of permanent need does not exclude the existence of a temporary need and both can co-exist. It was also held in that case, while deciding the question of grant of temporary permit objectors are not required to be heard, but at the same time, if objections are received then those objections may be taken into consideration which would held the authorities in coming to a correct decision about the genuineness of the public need. It was also held in that case, while deciding the question of grant of temporary permit objectors are not required to be heard, but at the same time, if objections are received then those objections may be taken into consideration which would held the authorities in coming to a correct decision about the genuineness of the public need. In this view of the matter, we are of the considered opinion that the aforesaid Patna decision does not in any way support Mr. Palit's contention that all applications for grant of temporary permits on a specified route are required to be disposed of together. Further there is no ceiling with regard to the number of temporary permits that could be granted in a specified route and the competent authority is only required to take a decision and find out whether any of the conditions contained in clauses (a) to (d) of sub-section (1) of Section 87 is fulfilled for which temporary permit can be granted to an applicant. In case of grant of a temporary permit there is no requirement in law to ask for objection opposing grant of such permit nor is there any computation between the rival applicants. In this view of the matter, our answer to the first question is that under law it is not the requirement that all applications made for grant of temporary permit on a specified route are required to be considered together and disposed of together. ( 11 ) COMING to the second question, notwithstanding our answer to the first question, the point for consideration is whether in the present case on the facts and circumstances as revealed, did propriety demand consideration of all applications including the applications of the petitioners togethe or the authorities were justified in not considering the petitioners' applications along with the applications of the opposite parties granting permits in their favour and the authority was justified in rejecting the petitioners' applications on that ground, namely, there does not exist any further need for grant of temporary permit. In this connection it is to be borne in mind that application for grant of temporary permit by opposite parties had been filed in October, 1993 whereas the petitioners' application was filed on 30-12-1993 and though orders had been passed by the permits granting authority in favour of opposite parties pursuant to their application dated 20- 21/10/1993. In this connection it is to be borne in mind that application for grant of temporary permit by opposite parties had been filed in October, 1993 whereas the petitioners' application was filed on 30-12-1993 and though orders had been passed by the permits granting authority in favour of opposite parties pursuant to their application dated 20- 21/10/1993. but those grants were struck down. By the time the applications were taken up for fresh consideration, petitioners' applications were already there for grant of temporary permits in the self-same routs. So far as the directions contained by this Court in OJC Nos. 146 and 286/94 are concerned, those directions obviously do not include the case of the petitioners. But it is undisputed that when authorities fixed the case for disposal of the applications for grant of temporary permit to 15-3-1994, as the petitioner had also filed application for grant of such permit by then, he was also noticed to appear on 15-3-1994. When his application was not considered on that date and was adjourned and the, permit granting authority considered the applications of the opposite parties, the petitioner had approached this Court in OJC No. 2471 / 94 and that application was disposed of at the admission stage on 31-3-1994 with the following observation which, we think proper to extract hereunder :-"the petitioners are apprehensive that during the pendency of consideration of their applications temporary permits may be issued to others without consideration of their case. We find no justification for such an apprehension. If applications have been filed for temporary permits they shall be dealt with by the authority in accordance with law. . . . "but the facts reveal that opposite parties 3 and 4 in OJC No. 2726/94 were granted temporary permits by order dated 23-3-1994 and opposite parties 3 and 4 in OJC No. 2725/94 were granted temporary permits by order dated 31-3-1994 and 2-4-1994. . . . "but the facts reveal that opposite parties 3 and 4 in OJC No. 2726/94 were granted temporary permits by order dated 23-3-1994 and opposite parties 3 and 4 in OJC No. 2725/94 were granted temporary permits by order dated 31-3-1994 and 2-4-1994. The records produced by the learned Standing Counsel also further reveal that office of the Chairman, State Transport Authority had indicated about filing of an application by the petitioners for grant of temporary permit and it was suggested that petitioner's application should also be taken into consideration and on that note the Chairman, S. T. A. had passed orders to issue notice to the petitioners to consider their applications on 15-3-1994 and in accordance with the said order, notice had been issued and the petitioners also appeared before the Chairman of the State Transport Authority on 15-3 1994. Further the final order passed in the petitioners' applications rejecting the same indicate that the application stood rejected in view of the fact that temporary permits had been granted in favour of Opposite parties 3 and 4 and there does not exist any further need for grant of temporary permit. In these state of affairs, we are of the considered opinion that in the present case propriety demanded consideration of the applications of the petitioners along with the applications of opposite parties 3 and 4 and all others whose cases were directed to be considered by this Court in OJC. Nos. 146 and 286 of 1994. When the petitioner approached this Court in OJC No. 2471 /94, apprehending that there will be no consideration of their applications if other persons are granted temporary permits in the route this Court disposed of with the observation that there is no justification for such apprehension. But the subsequent orders passed by the Chairman, S. T. A. rejecting the petitioners' applications on the sole ground that temporary permits have been granted in favour of opposite parties 3 and 4 and there does not exist any further need for grant of temporary permit establishes that the apprehension of the petitioners was real and justified. But the subsequent orders passed by the Chairman, S. T. A. rejecting the petitioners' applications on the sole ground that temporary permits have been granted in favour of opposite parties 3 and 4 and there does not exist any further need for grant of temporary permit establishes that the apprehension of the petitioners was real and justified. In our considered opinion, in the facts and circumstances of the present case propriety demanded that the petitioners' applications for grant of temporary permits should have been considered along with others and piecemeal consideration of the applications and grant in favour of opposite parties 3 and 4 and rejection of the petitioners' applications there after vitiates the order in question. ( 12 ) SO far as the third question is concerned, it is true that the petitioners in each of the writ applications does not come within the purview of the directions given by this Court in OJC Nos. 146 and 286/94 but the said direction did not prohibit the permit granting authority in any manner to consider the petitioners' applications for grant of temporary permits. That apart, the Chairman, S. T. A. had in fact decided to consider the application of the petitioners along with others on 15-3-1994 gave notice to the petitioners. In the absence of any embargo in the judgment of this court in OJC Nos. 146 and 286/94 and since the petitioner in each of the writ applications had made their applications for grant of temporary permit in the same route and they were noticed to appear on 15-3-1994, their applications should have been considered along with others. Consideration of the petitioners' applications at a later point of time and rejecting the same on the ground that there does not exist any further temporary need in view of grants made in favour of opposite parties 3 and 4, tantamounts to not real consideration of the petitioners' applications and therefore, the orders granting temporary permits in favour of opposite parties 3 and 4 in each of the writ applications stood vitiated. ( 13 ) THE only other question that survives for consideration is whether availability of an alternative remedy by way of revision would debar this court from entertaining the writ applications and deciding the same. ( 13 ) THE only other question that survives for consideration is whether availability of an alternative remedy by way of revision would debar this court from entertaining the writ applications and deciding the same. As has been stated by the Supreme Court in a number of cases that existence of alternative remedy ordinarily inhibits a prerogative writ, but it is not an impassable hurdle and where acts complained of is an impropriety on the part of the authority (sic) alternative remedy provided is not an efficacious one, then the prerogative writ could lie and could be issued. In other words, it is a self-imposed limitation and not lack of jurisdiction of the court to entertain a writ application, more so when there is no dispute on any questions of fact. In this view of the matter in the case in hand, we think that the alternative remedy by way of revision to the State Transport Tribunal would not debar this Court from entertaining the writ applications and deciding the same particularly taking into account the course of events as narrated in this judgment. We accordingly reject the submissions of the learned Standing Counsel as well as the counsel appearing for opposite parties 3 and 4 on this score. ( 14 ) IN view of our findings on the questions posed, we quash the orders granting temporary permits in favour of opposite parties 3 and 4 in both the inter State routes, namely, Narasinghpur to Calcutta and Kakatpur to Calcutta and direct reconsideration of the same along with the applications of the petitioners. We would make it clear that the consideration would be limited to petitioners in both these writ applications and all those whose cases were directed to be considered by this Court while disposing of OJC Nos. 146 and 286 of 1994. Needless to observe that if any further application had been made in the meantime, for the routes in question that need not be considered along with this persons. Consideration for grant of temporary permit pursuant to our direction may be made within one month from the date of receipt of our order. ( 15 ) THE writ applications are accordingly allowed, there would, however be no order as to costs. ( 16 ) D. M. PATNAIK, J. :- I agree. Petition allowed.