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T.M. Rangappa and Bros. and ors. Vs. the Mysore Revenue Appellate Tribunal, Bangalore and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 1747, 1927, 2999, 3000, 3001, 4159 and 4607 of 1970
Judge
Reported inAIR1972Kant39; AIR1972Mys39; (1971)2MysLJ303
ActsMotor Vehicles Act, 1939 - Sections 47(3), 57, 57(3), 64 and 134(2)
AppellantT.M. Rangappa and Bros. and ors.
RespondentThe Mysore Revenue Appellate Tribunal, Bangalore and ors.
Excerpt:
.....involved is one of public policy as indicated in obilaswami naidu's case, [1969]3scr730 and the failure to follow the procedure indicated therein in disposing of the applications for grant of permit should be held to have resulted in failure of justice......for stage carriage permits in that route should be entertained. the r. t. a. is not competent to grant stage carriage permits for more carriages than fixed under section 47 (3). our above conclusion accords with the view expressed by this court in civil appeal no. 95 of 1965 (so m/s. java ram motor service v. s. rajarathinam. therein the court observed: 'the scheme of section 47 is that when a person makes an application under sections 45 and 46 the authority first considers it under section 47(1) in the light of the matters set out therein and also the representations if any made by the persons mentioned therein. the authority then fixes under section 47 (3) having regard to the matters mentioned in section 47(1) the number of stage carriage for which permits may be granted in the.....
Judgment:

E.S. Venkataramiah, J.

1. The petitioners in all these Writ Petitions were applicants for the grant of different stage carriage permits under the provisions of Section 45 of the Motor Vehicles Act (hereinafter referred to as the Act) before the concerned Regional Transport Authorities to operate stage carriages within the region over which the concerned Regional Transport Authorities had jurisdiction and had been granted permits to do so. But all these permits were set aside in appeal either by the Mysore State Transport Appellate Tribual (hereinafter referred to as the M. S. T- A. T.) or the Mysore Revenue Appellate Tribunal (hereinafter referred to as the M. R. A. T.) on the ground that the Regional Transport Authorities had not followed the procedure enunciated in R. Obliswami Naidu v. Addl. State Transport Appellate Tribunal, Madras, : [1969]3SCR730 - Aggrieved by the said orders setting aside the grants made in their favour, the petitioners have filed the above petitions questioning the cortectness of the same. Since all the petitioners have urged common contentions in the above seven petitions, the cases were heard together and are disposed of by this common judgment.

2. Briefly stated the facts in each of the above cases are as follows:--

The petitioner in W. P. 1747 of 1970 applied for grant of a permit to ply a stage carriage on the route between Tiptur and Madhugiri via Halkurke, Mathigatta etc. That application was considered by the Regional Transport Authority, Tumkur and the permit was ranted by its resolution dated 14/15-9-1966. Certain persons who had filed objections to the grant before the Regional Transport Authority preferred appeals against the said grant before the M. S. T. A. T. which dismissed all the appeals. Against the order passed in appeal, a second appeal was filed under Section 64 (2) of the Act as it is in force in Mysore, in a common appeal bearing No. 426 of 1968 (MV) before the M.R.A. T. The said Appeal was allowed by the Tribunal setting aside the grant made in favour of the petitioner and the case was remanded to the Regional Transport Authority. Tumkur. for considering the application of the petitioner for the permit after following the procedure as laid down in Obliswami Naidu's case, AIR SC 1130 referred to above. Aggrieved by the said order, the petitioner has filed this writ petition.

3. The petitioner in W. P. 4159 of 1970 was an applicant for a permit to run a stage carriage on the route between Kudur and Bangalore via Arsinakunte, Solur, etc.. before the Regional Transport Authority, Bangalore, which by its resolution passed at its meeting held on 24/25-10-1968 granted the permit prayed for. Against the said grant, certain appeals were preferred before the M. S. T. A. T. which by its order dated 29-9-1969 set aside the grant on the ground that proper procedure had not been followed by the Regional Transport Authority in granting the permit and remanded the case to file of the Regional Transport Authority, Bangalore, for fresh disposal in accordance with the decision of the Supreme Court referred to above. Against that judgment, the petitioner filed an appeal before the M. R. A. T. The M, R. A. T. found that the grant made in favour of the petitioner by the Regional Transport Authority was liable to be set aside since the procedure prescribed under Section 47 (3) of the Act had not been followed and held that the order of the M. S. T. A. T. setting aside the grant was correct. It however made a further order holding that the order of the M. S. T. A. T. remanding the case to the Regional Transport Authority was wrong, and therefore, it set aside that portion of the order of the M. S. T. A. T. remanding the case for fresh disposal in accordance with law. It may be observed here that no person other than the petitioner had filed an appeal against the Order of the M. S. T. A. T. One of the complaints of the petitioner in this writ petition is that he was in a worse position than the position in which he was before he preferred the appeal to M. R. A. T. Aggrieved by the Order of the M. R. A. T.. the petitioner has filed this Writ Petition.

4. The petitioner in W. P. 1927 of 1970 was an applicant for the grant of a permit to ply a stage carriage on the route between Bylur and Kollegal via Wasayarpalyam. P. G. Palyam. etc. in the District of Mysore. The petitioner was granted the permit prayed for by the Regional Transport Authority. Mysore, by its resolution passed at its meeting held on 9-6-1969- Six appeals were filed against the said grant before the M. S. T. A. T. questioning the validity of the grant. In those appeals, the M. S. T. A. T. made an order setting aside the resolution granting the permit on the ground that the procedure adopted by the Regional Transport Authority was illegal. Aggrieved by the above order, the petitioner has preferred this writ petition.

5. In W. P. 2999 of 1970 the petitioner was an applicant for the grant of a permit to ply a stage carnage on the route Bajpe to State Bank in Mangalore Town, which is in the District of South Kanara. The Regional Transport Authority, S. K.. by its resolution passed at its meeting held on 21-7-1969 granted the permit prayed for by the petitioners. The said grant was later set aside by the M. S. T. A. T. in appeal on the ground that the grant was irregular in view of the decision of the Supreme Court referred to above. Aggrieved by the above order, the petitioner has filed this writ petition.

6. The petitioner in W. P. 3000 of 1970 was an applicant for a stage carriage to operate a service within the city of Mangalore, from Hampannakatta to Hampannakatta via certain places in the city. A permit was granted pursuant to the said application by the Regional Transport Authority. S, K., by its resolution passed at its meeting held on 21-7-1969. The said resolution was set aside in appeal by the M. S. T. A. T. on the same ground on which the permits of the other petitioners in these petitions were cancelled. The petitioner has challenged that order in this writ petition.

7. The petitioner in W. P. 3001 of 1970 was an applicant for the grant of a stage carriage permit to ply a stage carriage on the route between Gulbarga and Ainapur via Saradgi Cross. Khazi-kotnur. etc,, in the District of Gulbarga. The Regional Transport Authority, Gulbarga granted the permit by its resolution passed at the meeting held on 4-9-1969. But the said permit was set aside by the M. S. T. A. T. in appeal filed against the grant for the very reason for which the grants in favour of other petitioners were set aside. The petitioner has questioned the order of the M. S. T. A. T. in this writ petition.

8. The petitioner in W. P. 4607 of 1970 was an applicant for the grant of a permit to ply a stage carriage on the route Udipi to Mangalore via Bajpe. and Maravoor in the District of South Kanara. The Regional Transport Authority. S. K. granted the permit by its resolution passed at the meeting held on 21-7-1969. But the said grant was set aside in appeal filed against it before the M. S. T. A. T. on the ground that the Regional Transport Authority had not followed the procedure Indicated in Obliswami Naidu's case. : [1969]3SCR730 .

9. The undisputed facts in all the above petitions are that the petitioners in all these cases were applicants for a permit to ply a stage carriage on routes which fell exclusively within the jurisdiction of one or the other of the Regional Transport Authority. They made applications under Section 45 of the Act. The said applications were made suo motu and not in response to any notification issued by the Regional Transport Authority calling for applications for the grant of permits. The Regional Transport Authorities in all these cases proceeded to publish the applications for the grant of the permit under Section 57 (3) of the Act calling for representations and objections thereto and after hearing the applicants and the objectors or representations passed resolutions granting the permits. It is also not in dispute that there was no prior deterioration of the question whether there was need to issue the permit and the number of permits that had to be issued on the routes in question prior to the date on which the application for the permit and objections were taken up for consideration by the Regional Transport Authorities. It is admitted that by the same resolution, the Regional Transport Authorities disposed of both the question regarding the number of permits that had to be issued in each case and the question relating to the grant of the permit to the applicants. In other words, the question which has to be decided by the Regional Transport Authority under Section 47 (3) of the Act and the question relating to the grant of the permit to the applicant, were both disposed of at the same sitting and by the same resolution. By the impugned orders, the permits in question have been set aside on the ground that the procedure adopted by the Regional Transport Authorities in disposing of both the questions referred to above in the same sitting and by the same resolution, was erroneous in view of the provisions governing the grant of a stage carriage permit and the decisions of the Supreme Court bearing on the point.

10. We are called upon in these writ petitions to examine the correctness of the impugned orders.

11. It is unnecessary to refer in great detail to the several provisions of the Act since the question raised in these cases, according to us has been decided by the Supreme Court in more than one case The first case to which reference may be made is AIR I960 SC M30 Dealing with the above question the Supreme Court in the above case observed as follows:--

'On an examination of the relevant provisions of the Act and the purpose behind Sections 47 and 57. we are convinced that before granting a stage carriage permit two independent steps have to be taken. Firstly there should be a determination by the R. T. A. under Section 47 (3V of the number of stage carriages for which stage carriage permits may be granted in that route. Thereafter applications for stage carriage permits in that route should be entertained. The R. T. A. is not competent to grant stage carriage permits for more carriages than fixed under Section 47 (3). Our above conclusion accords with the view expressed by this court in Civil Appeal No. 95 of 1965 (SO M/s. Java Ram Motor Service v. S. Rajarathinam. Therein the court observed:

'The scheme of Section 47 is that when a person makes an application under Sections 45 and 46 the Authority first considers it under Section 47(1) in the light of the matters set out therein and also the representations if any made by the persons mentioned therein. The authority then fixes under Section 47 (3) having regard to the matters mentioned in Section 47(1) the number of stage carriage for which permits may be granted in the region or on any specified route within such region- Having fixed the limit the authority publishes under Section 57 (3), the application with a notice of the date before which representations in connection therewith may be submitted and the date on which such application and representations would be considered. The proviso to Section 57(3) lays down that if the grant of a permit has the effect of increasing the number of vehicles operating in that region or in any specified area thereof or on the route within such region beyond the limit fixed under Section 47(3) the Authority may dismiss the application summarily. If it does not exceed such limit and the Authority decides to grant a permit it has to consider the application and the representations submitted to it in conformity with the procedure laid down in Section 57. Therefore, Section 47 envisages two stages of the inquiry: (i) the fixing of the number of permits under Section 47 (3) and (ii) the consideration thereafter of the application for grant of a permit and the representations if any by the persons mentioned in Section 47(1). It would therefore be seen that once the Authority has fixed the number of vehicles to be operated in the region or the area or the particular route and the number of permits to be granted therefor, the stage of inquiry under Section 47(3) is over. The next thing that the Authority has to consider is whether grant of a permit would be within such limit or not. If it does not exceed the limit the Authority has to consider the application and the representation if any. in connection therewith and to grant or refuse to grant the permit under Section 48(1). Therefore, once the limit is fixed, if the grant of an application does not have the effect of exceeding that limit, the only question before the Authority would be whether the applicant is a person fit to be granted the permit or not in the light of the matters set out in Sub-section (1) of Section 47. The question of the number of permits to be granted, having been already canvassed and decided, cannot be-come the subject at that stage of any further controversy. This is clear from the fact that Section 48(1) which empowers the Authority to grant or refuse to grant the permit starts with the words subject to the provisions of Section 47'. It is therefore clear that the Authority has first to fix the limit and after having done so, consider the application or representations in connection therewith in accordance with the procedure laid down in Section 57.'

12. The above view was further explained by the Supreme Court in Mohd. Ibrahim v. State Transport Appellate Tribunal. Madras, : [1971]1SCR474 of that decision as follows:--

Para 16:

'The four decisions of this court to which we have referred establish two propositions. First, that the Regional Transport Authority should fix the limit of number of stage carriage permits under Section 47(3) of the Act and after having done so the Regional Transport Authority will consider the application for grant and representations in connection therewith in accordance with the procedure laid down in Section 57 of the Act. Secondly, when a new route is opened for the first time and an advertisement is issued calling for applications for such a new route specifying the number of vacancies for it, it would be reasonable to hold that the number of vehicles is specified as the limit decided upon by the Regional Transport Authority.

Para 65 :

'In our opinion, the provisions of the Act in regard to stage carriage permits have the following consequences. If the Regional Transport Authority were to appoint a date for the receipt of applications for the grant of stage carriage permits, the Regional Transport Authority should fix the limit of the number of permits which might be granted and then notify the same under Section 57 (2) of the Act. If, on the other hand, applications were sent by persons suo motu for the grant of permit the applications would have to be published and representations would have to be asked for. The proviso to Section 57 (3) of the Act furnishes the answer that if the grant of any permit in accordance with the application would have the effect of increasing the number of permits beyond the limit fixed under Section 47 (3) of the Act, the Regional Transport Authority might summarily refuse the application without following the procedure laid down in Section 57 of the Act. In other cases, the proper stage for fixing the limit under Section 47 (3) of the Act would be after applications are received and before the same would be published under Section 57 (3) of the Act asking for representations. If however the Regional Transport Authority would not increase or modify the number of permits which already exist, the grant of an application would mean transgressing the limit fixed, and the procedure laid down in Section 57 (3) of the Act need not then be followed. Though this scheme of the statute which is outlined here has not been followed in all the appeals in the present case, we have found that the Regional Transport Authority in some cases before it actually considered the applications for grant of permit and all parties competed for the grant on that basis and no one expressed any grievance at that time. The contention as to validity of order under Section 47 (3) of the Act was raised subsequently at the time of hearing of appeal against refusal of permit. We have found that there were notifications under Section 57 (2) of the Act and we have held in the facts and circumstances of the case that there was a valid order under Section 47 (3) of the Act. In few cases it was said that the order of fixing the limit was done at the same sitting along with the hearing but in the facts and circumstances of those particular cases we have found that there was a notification under Section 57 (2) of the Act inviting applications for the grant of permits on new routes or additional bus on existing routes, and it could therefore be held in those cases that there was a valid order under Section 47 (3) of the Act.'

It was, however, contended that in Mohammed Ibrahim's case the Supreme Court had upheld the orders granting the permit even when the order under Section 47 (3) of the Act had been passed on the same date, and, therefore, in these cases also the grants should be upheld. This argument overlooks one distinguishing feature between these cases and the cases disposed of by the Supreme Court, namely, that even in those cases before the Supreme Court where the order fixing the limit of stage carriages on any route was fixed on the same date, it had been done at a prior sitting of the Regional Transport Authority and when the question of grant of permit was taken up at a later sitting though on the same day it was known that the Regional Transport Authority had already done so. In some other cases before the Supreme Court applications tor permits had been invited by the Regional Transport Authority itself. The Supreme Court was, therefore, of the opinion that in the substance Section 47 (3) of the Act had been complied with before the question of grant of the permit was taken up. In none of the cases before us any of those courses has been adopted by the Regional Transport Authorities.

13. It was next contended that the objectors having not taken up that ground in their objections under Section 57 (3) of the Act, they should not have been permitted to raise it in appeal. This contention is not tenable since the objection was one which went to the root of the matter and related to the jurisdiction of the Regional Transport Authorities to grant the permit. It may also be seen that the facts on which the ground was based were also not in dispute. In these circumstances, it was open to the appellate authority to permit new ground to be raised and to decide the case on that ground. This view of ours receives support from a decision of this court in P. Lakshmi Heggadthi v. The Hanuman Transport Co. (P) Ltd., Writ Pern. No. 742 of 1970 D/- 8-12-1970 (Mys).

14. It was next contended that the appellate authority should not have set aside the grant without recording a specific finding that the irregularity noticed in the proceedings had resulted in failure of justice in view of Section 134 (2) of the Act. As already observed the irregularity involved in these cases is not one which is curable under any circumstances. It is to be assumed that the question involved is one of public policy as indicated in Obilaswami Naidu's case, : [1969]3SCR730 and the failure to follow the procedure indicated therein in disposing of the applications for grant of permit should be held to have resulted in failure of justice. The mere omission to say so in the impugned orders does not vitiate them.

15. It was argued by Sri M. R. Venkatanarasimhachar on behalf of the petitioner in W. P. 2999/70 that there had been fixation of the number of permits at ten in the earlier part of the resolution of the Regional Transport Authority and hence there was substantial compliance with the provisions of Section 47 (3) of the Act. We are not inclined to accede to this contention since such fixation was made in the course of the resolution by which the permit was granted.

16. In view of the above discussion, we are of opinion that the orders setting aside the grant of permits made in all these impugned orders should be upheld. This however does not dispose of all the petitions. We find that the Appellate Tribunal has in W. P. 1747 of 1970 remanded the application to the concerned Regional Transport Authority for fresh disposal in accordance with law, but in others the applications for permit have been rejected without sending them back to the Regional Transport Authorities for fresh disposal. We feel that wherever the applications are reject- ed in appeal, it is necessary to modify the orders by remanding the applications for fresh disposal to the concerned Regional Transport Authorities in accordance with law.

17. In the result, Writ Petition No. 1747 of 1970 is dismissed. But in Writ Petition Nos. 4159, 1927, 2999. 3000. 3001 and 4607 of 1970, we issue a direction to the concerned Regional Transport Authorities to dispose of the applications for the grant of permits afresh in accordance with law. In other respects, we dismiss these Writ Petitions also.

18. In the circumstances of the cases, we make no order as to costs.


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