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P. Suryanarayana Raju Vs. M.V. Ramadas and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal Nos. 452 of 1971, 83 and 102 of 1972 and W.P. No. 1997 of 1972
Judge
Reported inAIR1974AP258
ActsMotor Vehicles Act, 1939 - Sections 47 (1); ;Andhra Pradesh Motor Vehicles Rules - Rule 212
AppellantP. Suryanarayana Raju
RespondentM.V. Ramadas and ors.
Excerpt:
.....212 vis-a-vis section 47 (1) - one of views expressed was that if considerations other than those mentioned in rule 212 are allowed to prevail which considerations are taken into taken into account under section 47 object of rule would be defeated - other view expressed was that since application for grant of permit ultimately has to be decided under section 47 (1) apart from matters to be taken into account mentioned in rule 212 due regard shall have to be paid to matters in section 47 (1) - plain reading of rule 212 and section 47 (1) imports that both have to be considered while according sanction for permit - both complementary to each other - held, no conflict in construing both rule 212 and section 47 (1). - - 4 of 1968. the learned judges seem to say that while their view..........which have to be taken into account mentioned in rule 212, due regard shall have to be paid to the matters mentioned in section 47(1) (a) to (f) . it is because of this supposed conflict that the case has been referred to a full bench. the other cases were also referred because the same question was stated to have been involved in these cases.now section 47 in so far as it is relevant reads:'(1) a regional transport authority shall, in considering as application for a stage carriage permit, have regard to the following matters, namely:-- (a) the interests of the public generally, (b) the advantages to the public of the service to be provided including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken; (c) the adequacy of other.....
Judgment:

Gopal Rao Ekbote, C.J.

1. This batch of cases raises a point regarding the construction of Rule 212 of the Andhra Pradesh Motor Vehicles Rules in its relation to Section 47(1) of the Motor Vehicles Act.

2. Facts do not matter much because any answer to the question referred to us does not depend upon the facts of any of these cases. The learned Judges who have referred the main case to us thought that 'there is conflict of views between Division Benches of this Court as to the scope and application of R. 212 of the Motor vehicles Rules vis-a-vis Section 47(1) of the Motor Vehicles Act'. Although the order of reference does not expressly say as to on what point there is a conflict, on a reading of the whole order or reference the learned Judges seem to take the view that the opinion expressed in C. Narasa Reddy v. Government of Andhra Pradesh (1970-2 Andh WR 20) by Chinnappa Reddy, J. accords with the view taken by the learned Judges who referred the case and which they had expressed in W. A. Nos. 50 and 51 of 1969 but it does not accord with the view taken subsequently by the other Division Bench in W.A. No. 4 of 1968. The learned Judges seem to say that while their view was that if considerations other than those mentioned in Rule 212 are allowed to prevail which considerations are taken into account under Section 47, then the very object of the rule would be defeated and any latitude in that behalf would clothe the transport authorities with arbitrariness, the view expressed in W.A. No. 4 of 1968 and followed by Parthasarathi, J. in the instant case was that since the application for the grant of permit ultimately has to be decided under Section 47(1) of the Act, apart from matters which have to be taken into account mentioned in Rule 212, due regard shall have to be paid to the matters mentioned in Section 47(1) (a) to (f) . It is because of this supposed conflict that the case has been referred to a Full Bench. The other cases were also referred because the same question was stated to have been involved in these cases.

Now Section 47 in so far as it is relevant reads:

'(1) A Regional Transport Authority shall, in considering as application for a stage carriage permit, have regard to the following matters, namely:--

(a) the interests of the public generally,

(b) the advantages to the public of the service to be provided including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken;

(c) the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the places to be served;

(d) the benefit to any particular locality or localities likely to be afforded by the services;

(e) the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending;

(f) the condition of the roads included in the proposed route or area: and shall take into consideration any representations made by persons already providing passenger transport facilities by any means along or near the proposed route or area, or by any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government, or by any local authority or police authority within whose jurisdiction any part of the proposed route or area lies:

Provided that other conditions being equal an application for a stage carriage permit from a co-operative society registered or deemed to have been registered under any enactment in force for the time being shall, as far as may be, be given preference over applications from individual owners.'

3. Even a casual reading of this section will make it abundantly plain that the section is couched in mandatory language. It lays down certain matters which the Regional Transport Authority shall take into account and pay due regard to while considering an application for the grant of a stage carriage permit. A reading of clauses (a) to (f) would indicate that while clauses (a) and (e) are more directly relevant at the time of considering the applications under Section 57(3) of the Act for the grant of stage carriage permit, clauses (b), (c), (d) and (f) are more relevant while the Regional Transport Authority decides to limit the number of stage carriages generally or of any specified type for which stage carriage permits may be granted under sub-section also directs the Regional Transport Authority to have regard to the matters mentioned in sub-section (1) have to be considered at two stages, one for the purpose of limiting the number of stage carriages under sub-section (3) and the other at the time when applications for the grant of such permit are considered under Section 57(3) of the Act.

4. It would immediately be seen that although the section is wide in its scope and comprehensive in its effect yet is not exhaustive. Although without taking into consideration these matters which are mentioned in Section 47 of the Act, the Regional Transpoer Authority would have no jurisdiction to issue or refuse a permit, yet the section does not in terms exclude, from consideration, other matters which are germane to the question which falls to be decided. See M.Ramayya v. State : AIR1952Mad300 (quoting with approval the observation of Subba Rao J. made in the unreported decision in W. P. No. 167 of 1951), Ram Prasad v. Chief Commissioner, (AIR 1956 Ajmer 41); Dholpur Co-operative T. & M. Union v. Appellate Authority, (AIR 1955 Raj 19) and Ghouse Miah v. R. T. A. Cudappa, : AIR1963AP263 .

5. What is thus plain is that this section is not a complete code by itself and the matters mentioned in clauses (a) to (f) are not exhaustive. Other matters which are germane to the grant of refusal of permit can also be considered. The hands of the Regional Transport Authority are not tied down to the considerations of those matters alone which are mentioned in clauses (a) to (f). The Government may even frame rules under which some factors other than those mentioned in the section which in a way may fall under clause (a) can be taken into account while determining the applications under Section 57(3).

6. It would be seen that clause (a) is worded in a general way. When it speaks of 'public interest in general' it means the interest of the travelling public for whose convenience and to meet whose needs, stage carriages are provided. Since the words 'the interest of the public generally' are designedly used in a broad way, no narrow and technical construction should be applied. In issuing permits the duty of the transport authorities is thus made subject to the overriding condition that every thing should be done to confer the maximum benefit upon the travelling public i.e. the public utilising the particular route, area or region for which the permit is being granted. Thus this is the paramount consideration and must have to be given precedence over all other considerations. What is plain is that the interests of the public have been treated as paramount over the interest of the operators who are likely to be affected to a certain extent. Various considerations therefore will arise and competing claims will have to be taken into account. They will have to be weighed and balanced in order to determine as to where the best interest of the public lies. It is not possible nor it is desirable to lay down the various matters which may fall within the purview of the term public interest . When the Legislature has thought it fit to use a wide phrase designedly it will be against the intention of the legislature if the courts are to enumerate certain limited factors which alone should be considered under clause (a) of Sec. 47(1). Where Parliament has feared to tread it would not but proper for the Courts to rush in. Likewise no delegated legislative authority would be competent to lay down by rules specific matters which alone can be taken into account under the head of public interest disregarding other factors which legitimately fall within the ambit of clause (a). The Rule-making authority thus cannot narrow down the scope of clause (a) which as seen above has been designedly kept wide. Any such attempt would amount to fly in the face of Section 47(1) and would not be justified. When Section 47 says that the Regional Transport Authority shall have regard to all those factors, it means only one thing and that is it is bound to take in account all those matters and not omit from its consideration any matters mentioned therein or omit such factors from being taken into account which are germane to clause (a).

7. As seen already the scope of clause (a) is very wide. Nevertheless the Government is competent to make rules under Section 68 of the Act for the purpose of carrying into effect the provisions of the relevant chapter . Such rules may validly lay down some of the important relevant factors which come within one or the other clauses of Section 47(1) so that to an extent the discretion which is widely conferred be regulated with a view to bring about certainty ,equality and consistency in the orders of the Regional Transport Authority . In other words , the Regional Transport Authority can be required to exercise the discretion on certain well-accepted lines . That , however , would not mean that the rules can be so framed as to eliminate all other considerations which fall within the ambit of Section 47(1) . It is well recognesed that a free discretion is apt to degenerate into arbitrariness . In order therefore to keep the exercise of discretion within control , it may be permissible to frame certain rules . But the overriding effect of Section 47 can hardly be ignored.

8. It is in this setting of Section 47 that we have to examine Rule 212 . Rule 212 is long and somewhat oddly structured. References to sub-rule and clauses made are misleading . Even a trained lawyer finds it difficult to make an accurate reference to a sub-rule or a clause . They could have been with profit simplified .

9. That rule lays down guiding principles to be observed while granting or refusing of a stage carriage permit . The rule has in all five sub-rules . The first sub-rule relates to the classification , preference and screening of the applicants . The second sub-rule relates to the variation or extension of route . The third relates to the grant or refusal of additional trips or change of timings . The fourth sub-rule relates to the suspension or cancellation of stage carriage permit by way of punishment and sub-rule (5) pertains to a direction that orders passed shall be accompanied by a tabular statement of facts of marks . We are in this case not concerned with sub-rules (2) to (5) both inclusive.

10. Sub-rule (1) has in all five clauses . The first clause relates to the classification of routes . It classifies them into three routes , short , medium and long routes.

11. Clause (ii) then enjoins that other things being equal , preference shall be given to new entrants in cases of short routes . Likewise preference shall be given to applicants with one to four stage carriage in cases of medium routes . No preference is provided for to anyone in cases of long routes .

12. Clauses (iii) of sub-rule (1) relates to what has come to be known as screening of the applicants before marks are awarded. The word 'screening' is nowhere used but the word 'disqualified' appears therein and the point is further made clear in clause (iv) when it states that after eliminating the applicants in the manner laid down in clause (iii) the marks shall be awarded. These reference have come to characterise this process as 'screening' disqualified applicants .

13. Clause (iii) has six sub-clauses . The clause enacts that the transport authority shall , in deciding whether to grant or refuse to grant a stage carriage permit , have regard to the matters mentioned in six sub-clauses thereof . The clause makes it plain that the consideration of the matters enumerated in sub-clauses shall be 'in addition to those specified in sub-section (1) of Section 47. The clause then enumerates the grounds on which an applicant can be screened . It is unnecessary for our purpose to detail them here.

14. We then come to clause (iv) of sub-rule (1) . It directs that after eliminating the applicants in the manner laid down in clause (iii) marks shall be assigned for assessing the different qualifications of the applicants for the grant of permits. It has two sub-clauses . The first (a) pertains to award of marks for sector or residential qualification and the second (b) relates to the grant of a mark for business or technical experience in motor transport . Clause (v) then states that the applications thus finalised under clause (iv) shall then be disposed of according to sub-section (1) of Section 47 of the Act.

15. A reading of the said five clauses of sub-rule (1) would unmistakably indicate firstly that the routes are classified in clause (I) largely for the purpose of determining the preferences to be given according to clause (ii) . When clause (ii) states that 'other things being equal' preference shall be given as mentioned therein , it can only be mean the other things postulated by Rule 212 , It is clear that no question of preference can arise when applicants are being equal in that regard really arises . It is only when after the screening process is over marks are awarded according to clause (iv) of that sub-rule that the question of 'other things being equal' can arise . In other words the question of preference would arise on the grounds mentioned therein in cases where marks awarded are equal . There is no other possibility of interpreting the said that no other meaning was suggested by any one during the course of argument .

16. Secondly clause (iii) of Sub-rule (1) then lays down the grounds for screening the disqualified applicants . This can be said to be the first stage of consideration of all the applicants filed for granting permits . It eliminates those applicants who are disqualified . Thirdly clause (iv) then takes the consideration of the remaining applications of qualified applicants to the second stage. Marks as stated earlier are awarded to the applicants on a consideration of their respective qualifications . If the marks thus awarded are found to be equal , then the transport authority shall be required to consider whether any preference can be given to anyone under clause (ii) , if the route in such under clause (I) where preference can be give . If the matter is not capable of being disposed of on the basis of preference can be given . If the matter is not capable of being disposed of on the basis of preference referred to in clauses (I) and (ii) then the third stage of consideration arises .

17. It is seen that clause (v) of sub-rule (1) categorically directs that the applications finalised under clause (iv) shall then be disposed of according to Section 47(1) of the Act . It is at this third stage that the various matters enumerated in Section 47(1) shall have to be taken into account and then permit granted to one of the applicants after balancing and weighing the factors each against the other . It is not to be understood that in cases where preference is given under clauses (I) and (ii) it would not be necessary to consider matters referred to in Section 47(1) . In all cases the applications are ultimately disposed of under clause (v) of sub-rule (1) . In other words , they would be disposed after having given due regard also to the matters mentioned in Section 47(1) of the Act .

18. What is plaint from the abovesaid of Rule 212 is that the said rule nowhere prohibits the consideration of matters referred to in Section 47(1) . On the other hand it specifically directs in clause (iii) to have regard to the matter mentioned therein 'in addition to those specified in sub-section (1) of Section 47 and further unambiguously directs in clause (v) that applications shall be disposed of according to Section 47(1) be disposed of according to Section 47(1) of the Act . The rule could not have prohibited or curtailed in any manner the consideration of the matters enumerated in Section 47(1) . There is therefore very little or no justification whatsoever to contend that Rule 212 banishes the consideration of Section 47(1) . Rule 212 merely lays down the guidelines for exercising the discretion which is otherwise very wide and systemised the consideration of the applications for grant of permits . It brings into a large extent objectivity to the transport authority in exercising their discretion while determining the question of grant of refusal of the permit. It does not, however , mean that their overall discretion conferred on them under Section 47(1) is completely taken away by enacting Rule 212 . Both Rule 212 and Section 47(1) shall have to be kept in view while deciding the applications . The apprehension that if transport authorities are permitted to consider matters germane to Section 47(1) over and above Rule 212 , their discretion will degenerate into arbitrariness is not justified . It is clear that whenever the transport authorities are deviating from the path mapped out by Rule 212 , they have to give reasons while exercising the wider discretion under Section 47(1) of the Act. And if in an individual case it is found that such a deviation was not warranted , in other words , the discretion if improperly exercised the other can always be set aside in appeal or in a proceeding under Art. 226 of the Constitution . It would , however , be erroneous because of such apprehension of abuse of discretion to lay down that the transport authorities must in all cases exercise their discretion only within the four corners of rule 212 and not to have any regard to Section 47(1) of the Act . That will be inconsistent with the plain language of Section 47(1) of the Act. That will be inconsistent with the plain language of Section 47(1) and the Rule 212. It will amount to practically fly in the face of these provisions . It will also imply that the rule-making authority by enacting Rule 212 can destroy a mandatory provision such a Section 47(1) of the Act . We do not think there is any justification for adopting any such approach to these provisions . They are mutually supporting and in fact Rule 212 supplements Section 47(1) of the Act and does not curtail its operation .

19. Let us then see whether any of the decisions cited at the bar decide anything inconsistent with what is said above .

20. The first case to be considered is a Bench decision of Basi Reddy and Sambasiva Rao , JJ. given in W. a. No. 64 of 1968 on 8-7-1968 (Andh. Pra) . The learned Judges have not in any manner held anything contrary to what has been said in this judgment . They held :

' .... It cannot be said that the guiding principles laid down by the Rule alone by themselves should guide the R.T.A. in granting or refusing to grant permits without any reference to the principles laid down in Section 47, Clause (v) of sub-rule (1) itself makes the position clear. It categorically declares that after finalisation of the applications as per the provisions of clause (v) they should be disposed of according to sub-section 47. It is thus seen that the rule and Section 47 are mutually supplemented and are not exclusive.'

21. The second case to be considered is C. Narasa Reddy v. Government of Andhra Pradesh. (1970-2 Andh WR 20). This is the decision of Chinnappa Reddy, J. It is to this decision reference is elaborately made in W. A. 50 and 51 of 1969. The learned Judge observed:

'The Government appears to have thought the element of arbitrariness can be banished to a great extent by making a statutory rule lying down 'guiding principles' to be followed in granting stage carriage permits.'

The expression 'to a great extent' means that the discretion under Section 47 has not been completely taken away but regulated. It is true that the learned Judge has also observed:

'It is clear that the matters mentioned in Rule 212 are all considerations involving public interest and considered by the rule-making authority as more important that other matters involving public interest, but not mentioned in the rule.'

It is not however correct to infer from this observation that the learned Judge assigned a subordinate position to the matters enumerated in Section 47(1) of the Act. It is seen from what the learned Judge has immediately thereafter observed that what all he wanted to mean thereby was that the matters mentioned are meant to receive prior consideration before other matters not mentioned in the rule can be considered. This observation is in accord with Section 47(1) read with Rule 212 involves a three-tier consideration of the application , the first two stages being under Rule 212 .

22. It is no doubt true that while considering the submission made that 'if the transport authorities feel, in a particular case , that there are weightier considerations than the matters mentioned in Rule 212 , then those matters mentioned in Rule 212 , then those matters can be ignored' the learned Judge said :

'If the transport authorities are free to do that and if the several considerations mentioned in Rule 212 can be ignored whenever the transport authorities think it desirable to do so, the very object behind Rule 212 would do so , the very object behind Rule 212 would be frustrated and the door will once more be open for every kind of arbitrary action .'

It is not possible to infer from this observation to suppose that the learned Judge completely rules out the idea of paying due regard to matters mentioned in Section 47(1). That is plain because the learned Judge immediately thereafter said that :

'In my view , therefore , the provisions of Rule 212 must be given full effect before matters other than those mentioned in that rule can be considered .'

23. Another observation subsequently made by the learned Judge further strengthens this view. He said :

'................. Where several applicants obtain equal marks choice should be made in the manner provided in Rule 212 (1) (ii) and the other considerations may be given weight only if a choice cannot be made in accordance with Rule 212 (1) (ii).'

24. The learned Judge rejected the suggestion that this Court has expressed different views on this question . In fact the learned Judges approvingly cited several decisions of several learned Judges taking the same view . It is thus plain that the said decision runs on the same lines as discussed by us above .

25. We then come to the third decision of Obul Reddy and Madhava Reddy , JJ. given in W. A. Nos 50 and 51 of 1969 given on 14-11-1969 (Andh . Pra ,). The learned Judges observed :

'The expression 'other things being equal' occurring in Rule 212 (1) (ii) (b) must necessarily refer to matters other than those mentioned in Rule 212 (1) (ii) (b) i.e. matters unconnected with the question whether the applicant possess stage carriage permit.'

26. We do not think the learned Judges meant by those words anything more than equality in marks awarded under the said rule . That is what Chinnappa Reddy J. also held in the case cited above.

27. It is true that the learned Judges have observed as follows :

'Even when the rival applicants have secured the same marks if other considerations than those mentioned in Rule 212 (1) (ii) (b) are allowed to prevail then the very object of the rule would be defeated. Any latitude given to the transport authorities to say that the rival applicants who have secured equal marks are not equally placed for the purpose of giving preference under Rule 212 (1) (ii) would clothe them with the same arbitrariness which it was intended to check ..................... We think therefore hold that Rule 212 (1) (ii) (b) must be given full effect before other matters could be taken into consideration .'

28. This observation would make it evident that the learned Judges only emphasised that the matters referred to in Rule 212 should be considered first . That would not mean that they held that consideration of maters referred to in Section 47(1) is ruled out for all purposes . That this is so is clear from what they said further down :

'But we must at the outset point that taking into consideration matters mentioned in Rule 212 and determining whether or not the several applicants are equally placed is not in any way contrary to Section 47(1). That apart there may be some cases where even after exhausting the procedure prescribed under Rule 212 there may be more than two applicants who would be entitled to preference under Rule 212 , (1) (ii) (b) on the ground that they are 'existing operators' , as in this case . At this stage other considerations mentioned in Section 47(1) may yet apply and the requisite number of applicants selected for the grant of stage carriage permits .'

29. In the fact of these categorical observations which are in compete accord with what we have said above and which also are in full accord with the decision in W. A. of No. 4 of 1968 dated 29-1-1970 (Andh. Pra) how can it be said that there is conflict of views expressed in these judgments It would have been clear that all these judgments run on identical lines and reach the same conclusion .

30. The last case which remains to be considered is W. A. No. 4 of 1968 decided on 29-1-1970 (Andh. Pra) to which one of us (Hon'ble the Chief Justice) was a party. It was not disputed that the said Bench decision approaches the question substantially on the lines indicated in this judgment .

31. In view of the identity in views expressed in all these judgments, the learned Advocates appearing for the parties had to agree and concede that there is hardly any conflict in these judgments. No judgment of any other single Judge was brought to our notice which is said to have taken any different view and we are not aware of any such discordant view expressed by any Judge of this Court .

32. For the reasons which we have given , we would answer the question raised in the order of references, albeit not specifically formulated , as above. The cases will now go to a learned single Judge or a Division Bench as the case may be for final disposal in the light of this judgment . Costs of this Court will depend upon the ultimate result of each case . Advocate's fee Rs. 100 in each case.

33. Answer accordingly.


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