1. The petitioner seeks a writ of prohibition to prevent the Deputy Transport Commissioner, Kakinada from proceeding with an appeal filed before him by the 3rd respondent. The petitioner is the holder of a stage carriage permit for the route Sompeta-Srikakulam. The 3rd respondent has a permit to ply a stage carriage from Jagati to Tekkali Via Sompeta. A stretch of 27 miles is common to both these routes. The petitioner applied to the Regional Transport Authority, Srikakulam, for variation of the timings prescribed for the plying of his bus. That was allowed, in spite of the objections raised by the 3rd respondent. The 3rd respondent thereupon moved the Deputy Transport Commissioner, Kakinada, in appeal. This appeal was entertained and an interim order suspending the operation of the order of the Regional Transport Authority was passed. The petitioner's case is that no appeal lies under S. 64 of the Motor Vehicles Act (herein-after referred to as 'the Act') against the order passed by the Regional Transport Authority in the instant case. The Deputy Transport Commissioner had therefore no authority or jurisdiction to entertain the appeal. He has, therefore, to be prohibited from proceeding with it. These contentions are countered by the learned counsel for the 3rd respondent on the ground that the appeal is competent under S. 64(b) or 64(f) of the Act. This is the main controversy between the opposing parties in this writ petition.
(2) Section 64(b) of the Act gives a right of appeal to a person 'aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof'. Clause (f) of the same section confers a right of appeal on a person who 'having opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto'. In a letter Patent Appeal preferred from the decision of Subba Rao, J. (as he then was), a Division Bench of the Madras High Court consisting of Rajamannar, C. J. and Venkatarama Ayyar, J. in Kali Mudaliar v. Vedachala Mudaliar, : AIR1952Mad545 had to deal with the scope of S. 64(b) of the Act. The have observed as follows :
'Even if the timing can be said to be a condition attached to a permit, we do not agree with the learned Judge that the respondent could be treated as a person aggrieved by the variation of the conditions of the permit within the meaning of clause (b) of S. 64. The expression 'the permit' in that clause must obviously refer to the permit mentioned in cl. (a). That permit is a permit granted to any person by the Transport Authority. We think the proper construction of that clause is to confine its application to persons aggrieved by the revocation or suspension of the permits granted to them or aggrieved by any variation of the conditions of such permits granted to them. That clause does not confer a right on one person to appeal against an order varying the condition of a permit granted to another person.'
The learned counsel for the 3rd respondent has strenuously contended that the above opinion was expressed obiter by Rajamannar, C. J. who delivered the judgment of the Division Bench. I am not able to agree with this contention. The question whether an appeal lay under S. 64(b) of the Act was one of the material points raised before Subba Rao, J. who disposed of the writ petition and also before the Division Bench, which disposed of the Letters Patent Appeal. It is beyond the pale of possible doubt that the determination of the question whether a right of appeal was conferred in that case by S. 64(b) of the Act was very relevant. No doubt the Division Bench elaborately dealt with the question whether a change of timings was a variation of the condition of a stage carriage permit. They came to the conclusion that it was not. But they did not choose to base their decision solely on this conclusion. They proceeded to consider the merits of the appeal on the basis that a change of timing is a variation of the condition of the permit. This approach requires an interpretation of the provisions of s. 64(b) of the Act, and they interpreted it as stated above. In the circumstances, I am unable to agree that their construction of S. 64(b) must be regarded as obiter dictum. An appeal may present two distinct questions for decisions. Both these questions may be equally potent and a determination of any one of them in favour of the appellant may well result in the appeal being allowed. Yet, the court of appeal may very properly deal with both the questions and express its conclusions on them. This a court is surely entitled to do; it is indubitably proper to do so and no allegation of judicial irrelevancy can attach to its decision on either of the points. There is, in such a case, no travelling beyond the scope of the appeal, no dealing with anything immaterial or irrelevant and no effort which is not directed to an adjudication of the appeal. The decision on both the points will therefore have the full weight of judicial precedent.
(3) It is then urged that the opinion of the Division Bench in : AIR1952Mad545 has not been followed by the Rajasthan High Court in more than one case. A Division Bench of that court expressly refused to follow it in Mohd. Jamil v. State Transport Authority Rajasthan, (S) . This was approved by a Full Bench of the Rajasthan High Court in Jairamdas v. Regional Transport, (S) . The Full Bench decision was naturally followed by the same High Court in Heerlal v. State of Rajasthan, . But in Nandlal Thana Ram v. Ghani Khan Monaf Khan, : AIR1961Pat313 , a Division Bench of the Patna High Court expressly dissented from the Rajasthan view. A Division Bench of the Madhya Pradesh High Court in Jasram v. S. T. Authority M. P. , : AIR1961MP81 also declined to follow the Rajasthan view and preferred to adopt the view of the Madras High Court in : AIR1952Mad545 (Supra). With the utmost respect to the learned Judges, who rendered decision in the aforesaid Rajasthan cases, their reasons for not accepting the Madras view do not commend themselves to me. The plain words of S. 64(b), the setting in which they occur and the scheme of S. 64 seems to accord with the Madras view which has been accepted by the High Courts of Patna and Madhya Pradesh. The learned counsel for the 3rd respondent does not gainsay that it is only the person to whom the permit is granted that can be aggrieved by its revocation or suspension. These are two of the three causes for grievance mentioned in S. 64(b). The other cause mentioned in S. 64(b) is variation of the conditions of the permit. The reasonable construction appears to be that the person intended to be aggrieved by this third cause is no other than the holder of the permit the conditions of which were prejudicially varied. It does not appear reasonable to say that out of the three grounds for grievance mentioned in clause (b), the first two will apply only to the permit holder, but the third will apply not only to him but also to every outsider. Such a construction would permit fanciful and speculative appeals being preferred by rank strangers and officious busy bodies. But it is said that S. 64(b) must be so construed as to confine its ambit within reasonable limits. This would be importing into the interpretation vague and uncertain factors and virtually attempting to legislate. And in the process, an otherwise simple position would be rendered needlessly complex.
(4) If the Legislature intended that one person should be given a right of appeal from an order varying the conditions of another person's permit, it would have expressly enacted to that effect. Section 64(b) cannot be said to be an enactment for that purpose.
(5) I do not think it is reasonable to say that a person who was not entitled to any say before the Regional Transport Authority or who did not object to the variation of the conditions of a permit, must come within S. 64(b). It could not have been intended by the Legislature to let in such utter strangers into the scheme of S. 64. Yet if the interpretation contended for by the learned counsel for the 3rd respondent is accepted, the result would be that any person, irrespective of whether he was entitled to have a say before the Regional Transport Authority in the matter of varying the condition of a particular permit and irrespective of whether he raised any objection to such variation will be competent to prefer an appeal under S. 64(b) of the Act. I see no warrant to attribute such an intention, to the Legislature and no justification to construe S. 64(b) as asked for on behalf of the third respondent .
(6) Under S. 64(f) only a person who raised objection to the grant of a permit to another person and who is aggrieved, because his objection was overruled and the permit was granted, is given a right of appeal. This shows that when the Legislature intended to clothe a person with a right of appeal in respect of another person's permit, it did so in quite plain and express terms and also carefully limited the right to those who satisfied the specified requirement of having had objected to the grant of permit before the initial granting authority. The Legislature would have adopted this pattern, if it intended to grant a right of appeal in respect of variation of the conditions of another person's permit.
(7) Having considered the matter from more than one aspect, I am unable to see any fallacy or flaw in the interpretation placed on S. 64(b)fby the Madras High Court in : AIR1952Mad545 . In the present case, both sides invited me to proceed on the footing that a change of timings is a variation of the condition of the permit. Even so, the attempt on behalf of the 3rd respondent to bring his appeal within S. 64(b) of the Act cannot succeed.
(8) The 3rd respondent's learned counsel then contends that if an appeal is not competent under cl. (b) of s. 64 of the Act, it must be held to be permissible under cl. (f) of that Section. The 3rd respondent could come within cl. (f) only if he had opposed the grant of the permit to the petitioner. In the instant case what he opposed was not the grant of a permit, but only a change of the timings. This is not in any sense opposing the grant of a permit to the petitioner. When the timings were changed as asked for by the petitioner, one cannot say that a stage carriage permit was granted to him. The learned counsel however refers to S. 57(8) of the Act and argues that as an application to vary certain conditions of a permit is required to be treated as an application for the grant of a new permit, a favourable order passed on an application to vary the conditions of a permit must be held to tantamount to the grant of a new permit. This argument fails for two important reasons. First, S. 57(8) of the Act enacts a fiction. A legislative fiction has to be strictly confined to the area assigned to it by the Legislature and must be harnessed only for the specific purpose for which the Legislature created it. The fiction enacted in S. 57(8) is only for the purpose of applying the same procedure in disposing of an application for a new permit and an application to vary the conditions of a permit. The fiction has no larger part to play and no other purpose to serve. When the application to vary the condition of a permit is disposed of, the fiction embodied in S. 57(8) of the Act ceases to have any play whatsoever. It cannot be transplanted in another area and put to another use. It cannot be imported into the construction of S. 64 or invoked in determining as to the maintainability of an appeal under that section. A right of appeal is a creature of statute and has to be expressly conferred by statute ; it cannot be inferred by implication, much less by stretching a fiction beyond its permissible limits and putting it to a use far different from what it was intended to serve by the Legislature. In Krishnamurthy v. Ceded District Auto Transport Co. Ltd. , : AIR1953Mad321 a Bench of the Madras High Court composed of Satyanarayana Rao and Rajagopalan, JJ. , in dealing with R. 208 (b) of the Motor Vehicles Rules which embodied a fiction more or less similar to that enacted in S. 57(8) of the Act, pointed out :
'The mere fact that in the last part of R. 208 (b) the Transport Authority is directed to deal with the matter as if it were an application for a permit does not carry with it by implication even a right of appeal, as if it was a refusal to grant a permit within the meaning of S. 64(a) of the Act.'
(9) I am, therefore, wholly unable to accede to the contention of the 3rd respondent's learned counsel that the fiction embodied in S. 57(8) should be engrafted on S. 64(f) and by that process a right of appeal must be predicated in favour of the 3rd respondent.
(10) The other ground for rejecting the contention of the 3rd respondent is that S. 57(8) does not comprehend applications to vary timings. It cannot therefore, be called in aid in the present case which relates only to a successful application for change of timings.
(11) The learned counsel for the 3rd respondent finally argues that whatever may be the position with respect to S. 57(8) of the Act, R. 208 (b) can well be pressed into service by the 3rd respondent. I find it quite difficult to see how in the instant case R. 208 (b) can avail the third respondent. As I already indicated, the fictior which this rule has created for a special purpose cannot be employed for quite another purpose and to achieve a result which was plainly not in the contemplation of the rule making authority. The case of the 3rd respondent is not in any manner advanced by seeking the aid of Rule 208 (b) of the Motor Vehicles Rules.
(12) In view of the foregoing, I have no hesitation to hold that the appeal preferred by the 3rd respondent to the Deputy Transport Commissioner Kakinada was incompetent and that the Dy. Transport Commr. had no authority or jurisdiction to entertain it or to proceed with it. A writ of prohibition as asked for by the petitioner will, therefore, issue. The writ petition is accordingly allowed. The petitioner will get costs from the third respondent Advocate's fee Rs. 100/-.
13. Petition allowed.