Somnath Iyer, J.
(1) The petitioner obtained a permit to operate his stage carriage between Kunigal and Tumkur. The District Magistrate, Tumkur, who was then exercising the powers of a Regional Transport Authority under the Motor Vehicles Act permitted him to leave Kunigal at 3,50 P.M. This was done by an order made by him on October 16, 1950. Respondent 4, who was another operator was, in respect of his service, permitted to leave Kunigal at 3.45. P.M.
(2) According to the Petitioner by its resolution which it passed on February 25, 1954, the Regional Transport Authority directed the petitioner to leave Kunigal at 3.45 P.M. instant of 3.30 P.M. although, according to the timings originally assigned he had to leave Kunigal only at 3.45 P.M. On behalf of respondent 4, Mr. Venkatanarasimhachar does not admit that by the resolution passed by the Regional Transport Authority, Tumkur, on February 25, 1954, the timings originally assigned to the petitioner were altered. His contention is that by that resolution, the Regional Transport Authority merely declined to make a carnation in the timings originally assigned to the petitioner. To this aspect, I will advert at the appropriate stage.
(3) However, from the decision of the Regional Transport Authority directing the petitioner to leave Kunigal at 3.45 P.M. the petitioner appealed to the State Transport Authority. The State transport Authority allowed the appeal and permitted the petitioner to leave Kunigal at 3.30 P.M. Respondent 4 appealed from the decision of the State Transport Authority to the State Government who was then exercising power under section 64 (2) of Act. That appeal was dismissed.
(4) Respondent 4 thereafter presented Writ Petition 188 of 1956 to this Court. By an order made in that Writ Petition on August 7, 1958, the orders of the State Transport Authority and the State Government were set aside and the matter was remanded to the State Transport Authority for a fresh disposal of the appeal prosealed to it by the petitioner. Respondent 4 was, by that order, permitted to raise before the State Transport Authority the contention that the appeal proffered by the petitioner to it was an incompetent appeal.
(5) When the matter went back to the State Transport Authority in that way, respondent 4 did raise that contention, and the contention succeeded. The State Transport Authority dismissed the appeal presented by the petitioner on the ground that appeal did not lie under the provisions of secretary. 64 of the Motor Vehicles Act. The petitioner then presented a second appeal to the Mysore Revenue Appellate Tribunal and that a[peal met with no success.
(6) In this application presented by the petitioner the view taken by the State Transport Authority and the Revenue Appellate Tribunal, that the petitioner's appeal was not maintainable, is assailed on the ground that it rests one incorrect construction of the provisions of secretary. 64 (1) (b) of the Motor Vehicles Act as it is in force in that area which was originally the former State of Mysore and as it stood before the Motor Vehicles Act was amended by Act 100 of 1958.
(7) The Statutory provision to be interpreted in this case is Section 64(1) (b) of the Motor Vehicles Act as it stood before such amendment, and that part of the section reads:-
'Any person --
(a) aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit granted to him, or
(b) aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof.....
may, within the prescribed time and in the prescribed manner, appeal to the prescribed authority who shall give such person and the original authority an opportunity of being heard.'
(8) The case presented on behalf of the petitioner was that there was a variation by the Regional Transport Authority of a condition of his permit and that such variation was one against which an appeal was clearly provided by Section 64(1) (b) of the Act. According to the petitioner's case, the things assigned to him by the District Magistrate, Tumkur, constituted one of the conditions of his permit and that if the Regional Transport Authority, by its resolution passed on February 25, 1954, varied those timings, it must be regarded to have varied a condition of the petitioner's permit.
(9) The view taken by the State Transport Authority was that the time table prescribed for a bus operator by the concerned Regional Transport Authority was not one of the conditions of a permit and that, therefore, the alteration of the time table by the Regional Transport Authority subsequently, did not amount to a variations of any condition of the petitioner's permit. It was for that reason that it came to the conclusion that Section 64(1)(b) had no application for the petitioner's appeal.
(10) The short question, therefore, which arises in this case is whether, when the Regional Transport Authority altered the timings assigned to the petitioner it varied a condition of the petitioner's permit. If it can be said that the timings assigned to a stage carriage operator constitute a condition of his permit, it is clear that if the timings are subsequently varied, such variation amounts to a variation of a condition of a permit.
(11) On the question whether under the provisions of the Motor Vehicles Act, as it stated before its amendment by Act 100 of 1956, the timings assigned to a stage carriage operator constitute a condition of his permit, there divergence of judicial authority. Before processing to refer to those decisions, I shall refer to the relevant statutory provisions contained in the Act before it was amended.
(12)Section 46 is the section under which an application for a permit may be presented. That section requires the application to specify the particulars of the time table of the service to be provided. Section 57 empowers the Regional Transport Authority to grant the permit for which the application is made. Section 59 enumerates the statutory conditions which should be attached to every permit granted under the Act.
(13) The next section to which I should refer Section 48. That section empowers the Regional Transport Authority to attach to the permit granted by it, in addition to the statutory conditions which must invariably be attached every such permit, certain other conditions. C1 (d) of that section is the clause under which such other conditions may be attached, and that clauses reads:--
'power to restrict A Regional Transport Authority the number of may , after consideration of the stage carriages matters set forth in sub-section and impose con- (i) of Section 47 ....
conditions on stage carriage permits. (D) attach to a stage carriage permit any prescribed condition or any or more of the following conditions,namely:-- (iii) that copies of the fare table and time table shall be exhibited on the stage carriage and that the fare table and time table so exhibited shall be observed:....'
(14) As I have pointed out, it is open to a stage carriage operator applying for a permit to propose his own time table in the application presented by him under section 48. But, when the Regional Transport Authority grants the permit, it has power to regulate the timings of arrival or departure of stage carriages, and , that power is exercise able under Section 48(c) which covers such authority on the Regional Transport Authority.
(15) It is obvious that when that power is exercised by the Regional Transport Authority, it prepares a time table of it s own and it is that time table which is so prepared which is referred to in Section 48(d) (iii) of the Act, which requires that the time table should not only be exhibited on the stage carriage but that it should also be observed by the operator.
(16)There can be no doubt in this case that when the District Magistrate, Tumkur, made his order on October 16, 1950, that the petitioner should leave Kunigal at 3-30 P.M., what he did was to prepare a time table for the petitioner's service, the timings were regulated by the concerned authority under Section 48(c) of the Act. The position, therefore, was that for the petitioner's service, the timings were regulated by the concerned authority under Section 48(c) by the preparation of a time table for that purpose. That time table, it is also equally clear, was by a condition attached to the petitioner, required to be exhibited on his stage carriage and observed.
(17) The question, therefore, is whether, if the concerned authority required adherence on the part of the petitioner to the time table so prepared, it did not attach to ht permit a condition to that effect. If it did, it is clear that the appeal to the State Transport Authority was an appeal against an order varying a condition of his permit and was, therefore, perfectly competent. If not, it was liable to be rejected by the State Transport Authority, as it was done in this case, that it was an incompetent appeal.
(18) The view taken by the State Transport Authority, in which the Revenue Appellate Tribunal concurred, was, that, when the petitioner was permitted to leave kunigal 3-30 P.M. on October 16, 1950, nothing more was done by the District Magistrate than to merely regulate the timings of arrival and departure of the petitioner's service. According to their view, no condition was attached to the petitioner's permit under Section 48(d)(iii). It is the correctness of this view that requires to be investigated in this case.
(19) It is clear from the statutory provisions to which I have referred, that, when, a permit is granted by a Regional Transport Authority, three categories of conditions could be attached to the permit by it. The first set of conditions which must impressively be attached to it are those enumerated in Sec.59(3). These conditions being statutory conditions must form the conditions of every permit granted under the Act. The second set of conditions which may be attached are conditions prescribed by rules made under the Act and these are the 'prescribed' conditions which are referred to in Section 48(d). The third set of conditions which may be attached are conditions which may be attached are conditions which are enumerated in clauses (i) to (vi)v of Section 48(d). Cl.(iii) of these six clauses is the clause which requires to be interpreted by us.
(20) Last clause states that one of the conditions which may be attached to a permit is that the stage carriage operator shall exhibit on his stage carriage the time table and the fare table, and in addition to exhibiting them and the time table and in addition to exhibiting them in that way, should observe both the fare table and the time table. Now Section 48(d) expressly refers to this clause 'as a condition' which may be attached to the permit.
(21) Neither Mr. Venkatnarasimhachar appearing for respondent 4 nor Mr. Govindarajulu appearing for the petitioner in Writ Petition 87 of 1960, who was permitted to intervene during the argument in this case, disputed that the requirement of C1.(iii) of Section 48(d) was a condition of permit . But what they very strenuously urged was that clause had no reference to the timings assigned by a Regional Transport Authority to a permit holder.
(22) According to their argument, the timings are assigned not by that sub-clause but by clause (c) of section 48 under which the Regional Transport Authority, when it regulates the timings, assigns those timings to the permit holder. In other words, the argument presented is that the timings are assigned to a permit holder under Ci.(c) and that the condition imposed on the permit holder by sub-cl.(iii) of Section 48(d) is that he should observe the timings so assigned to him. If the permit holder who was originally assigned certain timings was under an obligation to observe those timings under section 48(d)(iii) but was told subsequently that he need not observe those timings and that he should observe certain other timings, it was submitted that a direction to that effect did not amount to a variation of the timings but was only a direction directing him to observe other timings than those which had been originally assigned to him.
(23) The argument is undoubtedly ingenous. But, it is not, in Mysore opinion justified by the language of Section 48 (d) (iii) it is free that the regulation of timings is done by a Regional Transport Authority under Secretary. 48 (c). When it proposes to so regulate the timings, what it does is to prepare for a stage carriage operator a timetable. When that is done, what the Regional Transport Authority may do under Section 48 (c) is fully done and completed. But what remains to be done is to assign those timings to the stage carriage operator, and the only method by which those timings can be assigned and enforced would be by attaching to the permit if the stage carriage operator a condition, that timings shall be observed. That can be done, it is clear, only under section 48 (d) (iii).
(24) In other words, under section 48 (c), the Regional Transport Authority makes and brings into existence a condition and, after having done that , condition is attached to the permit of the concerned person under sub-clause (iii) of section 48(d). Until it is so attached, the mere bringing into existence of that condition will have no effect, and adherence to it could not be made obligatory. The argument that under Section 48 (d (iii), the timetable is not made a condition of the permit but that it is only its observance which is made the condition, rests upon what I regard as expressly artificial construction of the provision of that sub-clause.
(25) The correct view to be taken in Mysore opinion, is that, when a Regional Transport Authority attaches a condition that the time table prepared by it should be observed, what it does is to impose a condition under Section 48 (d), that a stage carriage operator shall leave one of the terminal at a particular time and reach the other at the hour specified in the time table. In other words, what the Regional Transport Authority does, is to make the timetable assigned to a permit-holder one of the conditions of the permit, I see no justification for taking any other view.
(26) The view which found favour with the state Transport Authority, if accepted, is likely to lead to results so incongruous and anomalous is to make it altogether unacceptable. Now, there are at least four provisions in the Motor Vehicles Act which forbid the bench of the conditions of a permit granted to a stage carriage operator. Those provisions contain penalties for such breach.
(27) section 42 (1) forbids the owner of a transport vehicle to use the vehicle except. In accordance with the conditions of the permit. section 60 empowers the Transport Authority which granted the permit to cancel the permit or suspend, it if any of the provisions specified in Section 49 (3) of any of the condition attached is infringed to broken. Section 123 makes it an offence for a permit holders to conference the conditions of sub-section (1) or Section 42. Section 112 provides that a contraception of any of the provisions of the act or of any rules made thereunder shall. If no other penalty is provided for the offence, he punishable in the manner specified in that section. It is clear from secs. 42(1), 60 and 123 that if there is a broach of the conditions of the permit on the part of the permit holder, not only can the permit be suspended or canceled under Section 60, but the permit holder can also be prosecuted under Section 123. It is plain that the object underlying sections 42(1), 60 and 123 is to insist on the adherence of conditions attached to the permit and to punish the breach thereof.
(28) Now, if as contended, the timings assigned to a permit holder are not conditions of the permit, it is clear that if permit holder did not advise to do the timings assigned to him. It could not be permissible fir the Regional Transport Authority to cancel or suspend the permit since there was no breach of any condition of the permit. Likewise, the prosecution of the permits holed who did not adhere to his time table would be equally impossible.
(29) It is, in Mysore opinion, plain that it is on the utmost importance, having regard to the scheme and purpose of the Act, that a permit holder should adhere to and observe the timetable which has been prescribed for him. The importance of that requirement itself justified the view that it is always to be regard generally as a condition imposed on the permit holder subject to which alone he should operate the stage carriage service. It is addition to that section 48 (d) itself specifies the observation of the timetable as a condition which may be attached to a permit. I do not find it easy to understand why and for what reason it can be held that the timings assigned to the permit holder in that way are not and do not constitute a condition of the permit.
(30) If they do not constitute a condition of the permit, as contended on behalf of the contesting respondents in this case, it would be possible for a permit holder to disregard. The time table prescribed for him and to escape the consequences envisaged by section 60 and 123 of the Act. The permit holder who does not conserve the timetable can always contend that he has committed to breach of the conditions of his permit and that, therefore, his permit cannot be revoked or suspended under section 123. Consequences such as those which may emanate from the acceptance of the argument addressed on behalf of the contesting respondent's in this case, for bit, in my opinion, the construction for which they contend.
(31) The view that I take in this case was also taken by their Lordships of the Nagpur High Court in Provincial Govt., C.P. and Benar v. Mohanlall Keshuolal, AIR 1944 Nag 89. That was a case in which a stage carriage operator charged his passengers higher rates than those prescribed in the fare table which was prepared for him and which he was required to exhibit and conserve, by a condition imposed by Section 48 (d). (Iii) of the Act. When he was persecuted for having committed an offence in that way. It was urged on his behalf that the broke no condition such as what is referred to in Section 42 (1) and was, therefore not liable to be persecuted under Section 123. But, not unnaturally this argument was repelled their Lordships taking the view that once a condition is imposed under Section 48 (d) (iii) that a permit holder must observe the fare table any non--observance and that regard was clearly one which amounted to a breach of the conditions imposed on the permit holder and thereafter punishable under section 123 read with section 42 (1) of the Act. Their Lordships incidentally observed that the position would be the same in the case of non-perseverance of the timetable.
(32) In Rameshwar Dayal v. Regional Transport Authority, Meerut, AIR 1958 All 375, their Lordships imposed the view that if a time table was regulated to be observed by a condition, attached under Section 48 (d) (iii) for that purpose, the timings incorporated in such time table constitute a condition of the permit.
(33) On behalf of the respondents, it was pointed out to us that a contrary view has been takes on more than one occasion by more than one High Court.
(34) The earliest decision on which the respondents depended is Kali Mudaliar v. Vedachala Mudaliar. : AIR1952Mad545 . The timings assigned to the permit holder in that case were changed, by the Regional Transport Authority nd from that decision, a permit holder other than the one whose timings and been changed, appealed to the Central Road Traffic Board. The question which arose in that case was whether that appeal which was preferred to the Central Road Traffic Board was one which by under section 64 (b) of the Act as it was in force in the State of Madras.
Subba Rao J. Weho the writ petition which was pretended against the decision of the Central Road Traffic Board did not advert to that question. But in the appeal which was preferred from the decision of Subba Rao J. A Bench of that High Court , considered that question and held that the alteration by the Regional Transport Authority in that case of the timings assigned to the permit-holder, did not amount to a variation of a condition of his permit and was, therefore, not applicable under section 64 (b). The process of reasoning by which their Lordships reached that conclusion was that timings ate assigned by the Regional Transport Authority only under section 48 (c) and that what is made a condition under section 48(d) (iii) in the observance of that time table. If the timings assigned under section 48 (c) were altered and a condition was imposed thereafter that those altered timings should be observed it was thought by their Lordships that no condition of the permit had been varied so as to entitle the aggrieved party to permit an appeal under section 64 (b).
(35) This pronouncement was by a Bench of such high authority that one should hesitate to express dissent from it. But, if I may say so with great respect I cannot subscribe to the view expressed by their Lordships in that case.
(36) I find great difficulty in subscribing to the view that if a permit holder who has been asked to observe a particular time table is later asked to observe a different time table is a condition attached under section 48 (d) (iii), there is no variation of a condition of the permit. If the conservancy appearing for the contesting respondents in this case - a direction that he should not observer the ole time table but observe another time table, would clearly amount to a variation of a condition of his permit. If a condition is attached to his permit that he should observe a particular time table and the condition which is later attached to his permit is that he should observe a different time table on each occasion what he is told is that he should observe only those timings which are fixed for his service. The direction that he should do so is an imposition of what is plainly a condition which is attached to his permit.
(37) I do not see anything in section 48 (c) which justifies a different view. Their Lordships of the High Court , of Madras took the view that when timings are assigned to a stage carriage operator, what is done is nothing more than to merely regulate his timings under that clause. What has not been considered by their Lordships is that when a regulation is made under section 48 (c), what is done by the Regional Transport Authority is merely to prepare a condition which does not get attached to the permit unless it is attached under section 48 (d) (iii) . Under section 48 (c) a condition is prepared and that condition,. In my opinion, is attached under section 48 (d) (iii) and if the condition so attached is changed or altered, I find no difficulty in coming to the conclusion that such operation is clearly a variation of a condition of the permit within the meaning of that expression occurring in section 64 (1) (b) of the Act as in force in the State of Mysore.
(38) The consequences which are likely to arise from any other views such as those which I have mentioned, viz, the impossibility of the cancellation or suspension of a permit under section 60 or of a prosecution under section 123, do not appear to have been considered by their Lordships in the Madras Case.
(39) I must therefore, respectively dissent from the view taken in that case.
(40) In Anandram Ayaidas v. Damodaradas, AIR 1956 vindh pra 44, what the learned judicial commissioner did was to merely follow the pronouncement in the Madras case. There is no discussion in that case of the question. Whether under the provisions of the Act when timings are assigned to a stage carriage permit those timings attached to a permit constitute one of the conditions.
(41) Jairamdas v. Regional Transport , (S) AIR 1957 Raj 812 (FB) , on which the respondents and relied is a Full Bench decision of the Rajasthan High Court . The question as to whether timings constitute a condition of a permit did not more for consideration in that case. It is true, as pointed out by Mr. Venkatanarasimhachar, : AIR1952Mad545 was cited during the argument in this case and was referred to in the judgment. That part of the pronouncement in the Madras case that timings do not constitute a condition of a permit was also referred to. But what their Lordships of the Rajasthan High Court said was that conclusion was 'a conclusion with which there need be no disagreement.' It is clear that they did not intend to express any definite opinion on a question which did not arise for decision and, therefore, required no investigation.
(42) On three occasion, the Kerala High Court had occasion to consider whether timings constitute a condition of a permit. P.C. Oommha (Molly Motors) v. Road Traffic Board. Kottyam. : AIR1958Ker339 , No.. Gopalan v. Central Road Traffic Board, Trivandrum. AIR 1958 Kerala 841 and V.G.K. Bus Service Ltd. v. Kerala State Transport, : AIR1960Ker18 are the three decision of that Court . In the first two cases, what Vaidialingam, J . did was to merely follow the pronouncement of the Madras Case. He did not consider it necessary to discuss the question himself. In the third cases the question as to whether timings constitute a condition of a permit did not arise for consideration. The question was whether the appellant who filed an appeal in that case was an aggrieved party. The view was taken by their Lordships of the Madras High Court that when timings assigned to a permit holder were changed, there was no variation of a condition of his permit, was incidentally referred to by Vaidialingam J.
(43) Our attention was next asked to Sukideo Kumar v. State of Bihar. : AIR1959Pat580 . Their Lordships of the High Court of Patna in that date agreed with the view expressed in the Madras Case.
(44) Since I have expressed dissent from the view taken in the Madras case, it follows that I cannot subscribe to the view taken in the other cases, the decisions in which rest entirely upon that pronouncement.
(45) It is, however, interesting to note that in K. M. Thomas v. State Transport Authority, AIR 1950 Kerala 111, Vaidialingam J. Expressed the view that although timings assigned to a permit holder do not constitute a condition of his permit under the Act as it stood before its amendmend, they became one such condition alter it was amended by Act 100 of 1956.
(46) It seems to mentioned, however, that there was no change brought about by the amendment to section 48 by Act 100 of 1956. Section 48 (d) as section 48 (d) (iii) is virtually the same as it was before it was amended in that way. There is no alteration of change in its provision justifying the view that after the amendment made to it by Act 100 of 1956, timings. If they were not conditions of permit under the amendment Act, became such conditions after such amendment.
(47) All that has been done to section 48 by Act 100 of 1956 is to re-number section 48(d) as section 48 (3). The further alteration made to that clause is to split clause (iii) of section 48 (d) into clause (iii) and Iv) of section 48 (3). Beyond those changes, section 48 (d) (iii) is exactly what it was before it was amended by Act 100 order 1956.
(48) That being so, if as Vaidiayalingam J. Has held under section 48 (iii) and (iv) as amended, the observance of the time table is a condition of a permit, there should be no difficulty in holding that the position was in no way different when section 48 (d) (iii) , was in force. It would not be logical to hold, since no change was made to section 48 (d) (iii) beyond making a change only in the way in which it has been remembered, that the timings assigned to a permit under the old section, were not conditions of the permit but those assigned under section 48 (iii) and (iv) were.
(49) In the view that I take, it is cleat that , the Regional Transport Authority varied a condition of the perter's permit when it directed the petitioner by its resolution which it made on February 25, 1954 to leave Kunigal at 3.45 P.M. instead of 3.30 P.M. That being so, his appeal to the State Transport Authority was a perfectly competent appeal which lay under section 64 (1) (b) of the Motor Vehicles Act as in force is the State of Mysore.
(50) But Mr. Venkatanarasimhachar has urged that we should not take that view since, according to him, the resolution of the Regional Transport Authority passed on February 25, 1954 did not in fact after the petitioner's timings.
(51) Mr. Venkatanarasimhachar has drawn out attention to one part of the resolution for which the Regional Transport Authority refused to permit the petitioner to leave Kunigal at 3.30 P.M. He urged that this was done by the Regional Transport Authority since the petitioner wanted his timings to be changed and made an application for that purpose. According to him, the petitioner was before February 25, 1954, leaving Kunigal 3.45 P.M. and wanted the advancement of the time of departure to 3.30 P.M. and that the Regional Transport Authority refused to permit him to do so.
(52) But this argument overlooks the fact that before the Regional Transport Authority made that order it has already altered the petitioner's timings as a result of a request to that effect from the General Manager of the Mysore Road Transport Authority and he accordingly appears to have asked the Regional Transport Authority title restore his old timings, and what the Regional Transport Authority refused to do on February 25, 1954, was to make such restoration. Mr. Venkatanarasimhachar is not right therefore, in his contention that even according to the timings originally assigned to the petitioner he watans leaving Kunigal at 3.45 P.M. and that he applied for a revision of the timings so assigned to him.
(53) That being the position, all that we need do in this case would be to squish the orders of the State Transport Authority and the Re-Transport Appellate. Tribunal which has now taken the place of the State Transport Authority to hear the appeal of the petitioner on its merits and dispose of it according to law. It is to ordered.
(54) In the circumstances there will be no order as to costs.
Kala Gate, J.
(55) I agree.
(56) Petition allowed.