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Shiv Singh and ors. Vs. the State Transport Appellate Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeals Nos. 234 and 553 of 1966
Judge
Reported inAIR1969All14
ActsConstitution of India - Article 226; Motor Vehicles Act, 1939 - Sections 47(3) and 48; Evidence Act, 1872 - Sections 115
AppellantShiv Singh and ors.
RespondentThe State Transport Appellate Tribunal and ors.
Advocates:S.N. Kakkar and ;Sri Dhar, Advs.
DispositionAppeals allowed
Excerpt:
motor vehicles - joint writ petition - section 48 of motor vehicles act, 1939 and article 226 of constitution of india - joint writ petition filed - held, the person having a common interest in the subject matter in controversy may be joint as relators while those having separate and distinct rights may not. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or.....gangeshwar prasad, j.1. these are two special appeals against the judgment of a learned single judge of this court by which he dismissed a writ petition filed by the appellants for quashing an order of the state transport appellate tribunal u. p.2. the circumstances which led up to this petition may be briefly stated. in december 1960 baharaich-rupaidiha route was advertised by the regional transport authority, gorakhpur and applications were invited by it for permanent stage carriage permits. the route was a new one and the number of permits to be granted for it had been fixed at four. the appellants and respondents nos. 3 and 4 applied for permit along with many other persons. the applications received in response to the advertisement came up for consideration before the regional.....
Judgment:

Gangeshwar Prasad, J.

1. These are two special appeals against the judgment of a learned Single Judge of this Court by which he dismissed a writ petition filed by the appellants for quashing an order of the State Transport Appellate Tribunal U. P.

2. The circumstances which led up to this petition may be briefly stated. In December 1960 Baharaich-Rupaidiha route was advertised by the Regional Transport Authority, Gorakhpur and applications were invited by it for permanent stage carriage permits. The route was a new one and the number of permits to be granted for it had been fixed at four. The appellants and respondents Nos. 3 and 4 applied for permit along with many other persons. The applications received in response to the advertisement came up for consideration before the Regional Transport Authority on April 15, 1961. On that date the Regional Transport Authority decided to raise the number of permits to be issued for the route from four to six and granted permits as follows : One permit to Shiv Singh appellant No. 1 jointly with Param Hans Singh; one permit to Narain Ram appellant No. 2; one permit to Har Saran Dass appellant No. 3; one joint permit to Mohd. Khatib Ahmad Siddiqi appellant No. 4, and Zainduddin Ahmad appellant No. 5; one joint permit to Abdul Majid and Mohammad Bashir; and one joint permit to Onkar Mal Lakshmi Narain Maheshwari. The applications of respondents Nos. 3 and 4 were rejected and no permit was granted to them. The grantees of the last two permits did not, however, lift their permits which were, consequently revoked by the Regional Transport Authority on September 14, 1961. Subsequently, by a resolution dated January 8, 1962 the Regional Transport Authority deleted the name of Param Hans from the permit issued to him jointly with Shiv Singh appellant No. 1. The parties differ as to the reason for the deletion, but the position in any case was that the four permits granted for the Baharaich-Rupaidiha route came to be held by the appellants, the first three holding one permit each and the remaining two holding a joint permit.

Against the order of the Regional Transport Authority granting these permits to the aforesaid ten persons in the manner indicated above two appeals were filed, appeal No. 209 of 1961 by respondent No. 3 and appeal No. 332 of 1961 by respondent No. 4. When the appeals came up for hearing before the State Transport Appellate Tribunal it appears to have been urged on behalf of the appellants that irrespective of anything else in view of the decision of the Supreme Court in Abdul Mateen v. Ram Kailash Pandey, AIR 1963 SC 64 the order of the Regional Transport Authority was invalid because it could not have raised the number of permits from four to six. What the learned counsel for the respondents to the appeals actually or in effect said in regard to the above contention is a matter on which the parties are not agreed. However, by its order dated May 15, 1963 the State Transport Appellate Tribunal set aside the order of the Regional Transport Authority and directed it to fill the vacancies according to law. The material portion of the order of the State Transport Appellate Tribunal --and that is the only portion dealing with the merits of the appeal -- is as follows :

'It was argued by learned counsel for the appellants when this matter came up for hearing on the 9th May, 1963 that in view of the decision of the Hon'ble Supreme Court reported in AIR 1963 SC 64, the order of the R. T. A. made at their meeting held on the 15th April, 1963, is invalid and should be set aside. There is no objection from the opposite party. The order of the R. T. A. is, therefore, set aside and it is directed to fill the vacancies according to law.'

2A. The main grounds on which the order of the State Transport Appellate Tribunal was challenged in the writ petition were that the decision of the Supreme Court in Abdul Mateen's case, AIR 1963 SC 64 was misconstrued and misapplied by the State Transport Appellate Tribunal, and that, at any rate, two of the permits having not been taken out and having been subsequently cancelled the order of the Regional Transport Authority was no longer open to any objection. The learned Single Judge did not decide the questions raised in the aforesaid grounds of challenge because, in his opinion, the writ petition had 'run up against an objection which should preclude its consideration on the merits.' The objection was that the order of the State Transport Appellate Tribunal had been passed upon the consent of the petitioners, and, upholding that objection, the learned Judge observed :

'The impugned order could be said, in the circumstances to have been passed upon the consent of the parties. That being so, I am not inclined to hear the petitioners against the order of the Appellate Tribunal. I am fortified in my decision by the view taken by this Court in Satya Pal Khetra Pal v. State Transport Appellate Tribunal U. P. Lucknow : AIR1965All242 .'

The learned counsel for the appellants, in his arguments before us, stressed the aforesaid grounds of the writ petition and further urged that the order passed by the State Transport Appellate Tribunal should be regarded as having been passed not merely upon the consent of the parties but also upon the Tribunal's own misconception of what has been laid down by the Supreme Court in Abdul Mateen's case, AIR 1963 SC 64, that in conceding that in view of the decision in the above case the order of the Regional Transport Authority was invalid and had to be set aside, the counsel for the present appellants (who were respondents in the appeal before the State Transport Appellate Tribunal) was obviously mistaken in law and the concession could not therefore preclude the appellants from challenging the order of the State Transport Appellate Tribunal, and that in any case it was the duty of the State Transport Appellate Tribunal to examine for itself the applicability of the said decision to the case and it could not be relieved of that duty by the concession made by the counsel for the present appellants. Before proceeding to consider the questions raised by the learned counsel, however, it is necessary to dispose of certain technical and procedural matters connected with these appeals,

3. As noted above respondents Nos. 3 and 4 had filed separate appeals against the order of the Regional Transport Authority but both the appeals were disposed of by a common order by the State Transport Appellate Tribunal. Against that order the appellants filed one single writ petition. Before the learned single Judge hearing the petition a preliminary objection to the maintainability of the petition was taken by respondents Nos. 3 and 4 on the ground that it was not open to the petitioners to join together in one petition and, at any rate, the order disposing of the two appeals could not be challenged by a single petition. The view that the learned Judge took on the objection was that since there were four applications for permit by the petitioners, one by each of the first, second and third petitioners and one jointly by the fourth and fifth petitioners, the order disposing of each appeal would be an order in four records, and as there were two appeals it must be held that there were in all eight records. The petitioners were, however, permitted by the learned Judge to pay the court fee required for eight writ petitions, and the writ petition was decided after the said court fee had been paid.

The appellants preferred only one special appeal (No. 234 of 1966). During the hearing of the said appeal there was again a preliminary objection on behalf of the respondents that a single appeal was not maintainable. The learned counsel for the appellants did not concede that a single appeal was not maintainable, but he asked for a fortnight's time to enable him to file another special appeal by way of precaution. The time asked for was allowed. Another special appeal (No. 553 of 1966) was then filed by the appellants but this was done eight days after the expiry of the time allowed by the Court. Along with special appeal No. 553 of 1966 the appellants filed an application for condoning, under Section 5 of the Limitation Act, the delay in filing it, stating that the appellants were under the bona fide belief that one appeal would be competent because the judgment of the learned single Judge was in one writ petition and there was only one judgment by which the petition was dismissed. The respondents were granted three weeks' time to file a counter-affidavit but no counter-affidavit was filed. In the course of arguments addressed to us on behalf of the respondents after the filing of special appeal No. 553 of 1966 it was not contended that the appellants were not entitled to the benefit of Section 5 of the Limitation Act nor was it urged that more than two appeals ought to have been filed against the judgment of the learned single Judge. We have, however, to decide the objection and to determine whether the appeals are competent and entertainable.

4. The initial question in that connection is whether there were, as the learned single Judge held, eight records in respect of which the applicants prayed for a writ of certiorari or there was only one record. To us it appears that both before the R. T. A. and before the State Transport Appellate Tribunal there was one single record, and the order passed by the Tribunal was in respect of one single record even though it disposed of two appeals in each of which the grantees of four separate permits were arrayed as respondents. The claim of no applicant for permit could be considered in isolation and without reference to the claims of the other applicants.

By the very nature of its task the Regional Transport Authority was called upon to choose between the applicants by judging the relative claims of all of them together and it was only upon a comparative assessment of the suitability of air the applicants that the permits could be granted. In these circumstances the record relating to the grant of permits was, in our opinion, only one record and it was not split up into as many as the number of applicants nor further split up into two records in respect of each grantee of a permit by the fact of two separate appeals having been filed by two unsuccessful applicants. We are also of the opinion that the appellants could have filed a joint writ petition and it was not necessary that each of them should have filed a separate petition. The State Transport Appellate Tribunal did not at all consider the respective claims of the parties before it to the grant of permit and it only directed the Regional Transport Authority to fill the vacancies according to law by setting aside its order, The order of the State Transport Appellate Tribunal was, therefore, not merely one which affected all the appellants equally but was also an indivisible order giving rise to a joint grievance to the appellants and, therefore, to a joint interest in all the applicants to have the grievance redressed by means of a writ quashing the order.

5. The distinction between a right common to several persons and a joint right is of cardinal importance in the determination of the question whether several persons may join together in filing a single writ petition and this distinction was the basis of a Division Bench decision of this Court in Uma Shanker Rai v. Divisional Supdt, Northern Rly., Lucknow : AIR1960All366 . That case came up before the Division Bench upon a reference made by a single Judge who expressed the opinion that a writ petition could not be filed by several persons unless their right was joint and inseparable and that in case of a common right it is not open to the persons who are affected by a common order to file a joint writ petition. The Division Bench, while holding that in the case before it one single writ petition on behalf of all the petitioners was not maintainable, accepted the distinction drawn by the referring Judge. The Bench also quoted with approval a passage from an unreported single Judge decision of this Court in which it was held that two or more persons cannot join in a single application for a writ of mandamus to enforce separate claims but it was at the same time observed that in cases of joint ownership it may be possible for two or more persons to file a joint writ petition.

Further, the Bench referred to a passage from Ferris and Ferris in their Extraordinary Legal Remedies (1926 Edition) where, in the chapter dealing with mandamus the learned authors have, on the basis of American decisions, said at page 275 : 'The rule is that persons having a common joint interest in the subject matter in controversy may be joined as relators while those having separate and distinct rights may not.' We have omitted the remaining portion of the observation quoted by the Bench because it deals with the consequences of misjoinder and not with the question as to when and in what circumstances a petition for mandamus suffers from the defect of misjoinder. Adverting, then, to the English Law the Bench observed that 'under the English Law also it is not permissible for two or three applicants not having a joint right) to join in a writ petition' and drew attention to Halsbury's Laws of England (Hailsham's Edition Volume IX) paragraph 1325 at page 783 where in relation to mandamus it has been stated : 'Two or more persons cannot join in a single application for a writ of mandamus to enforce separate claims. There must be separate applications for separate writs, and this although the several applicants are successors in the office in respect of which the claims arise.' It is obvious that the above statement of the law relates to writs for the enforcement of separate claims, and the Division Bench held that one single objection on behalf of the claimants before it was not maintainable as it found that their claims were separate and they had no joint right.

6. Examining the position in the instant case in the light of the authorities noted above, we find that although the permits granted to the appellants were separate the appellants, by means of their writ petition, did not really seek to enforce their rights under the permits granted to them, but to get the order of the State Transport Appellate Tribunal quashed. It is true that it was the right granted to the appellants under the permits that gave them the locus standi to file the petition, but what made them aggrieved and thus furnished the occasion and gave them the right to ask for a writ of certiorari was the order of the State Transport Appellate Tribunal. This latter right was not merely common to all the appellants but was a joint and inseparable right. Could the order of the State Transport Appellate Tribunal have remained intact and retained its force against any of the appellants if it had been set aside as against one of them as a result of a writ petition filed by him? Could the fact that the other appellants had not challenged the order stand in the way of a writ petition filed by any one of the appellants? The answers to these questions seem to be clearly in the negative and if that is so it should, in our opinion, follow that the appellants had, to quote the words of Ferris and Ferris, a common and joint interest in the subject matter in controversy.

We need not enter into the question whether the rule as to joinder stated in Extraordinary Legal Remedies by Ferris and Ferris and Halsbury's Laws of England is confined to writs for mandamus or extends to writs for certiorari, because in the instant case the filing of a single joint writ petition by the appellants was well within the rule, We may, however, observe that it may not be entirely without significance that in the authorities mentioned above there is no reference to any analogous rule in relation to certiorari. However, by reason of the fact that the record of the grant of permits was one integral unit and the order of the State Transport Appellate Tribunal did not in any manner break its unity, we hold that a single joint writ petition for a writ of certiorari by all the appellants was in order. We further hold that the fact that the appellants, in compliance with the order of the learned single Judge paid the court fee payable for eight writ petitions did not have the effect of converting that single writ petition into multiple petitions. It is true that respondents Nos. 3 and 4 had filed two separate appeals before the State Transport Appellate Tribunal but that could not render the filing of two writ petitions necessary. A writ petition is not in the nature of an appeal, and having regard to the nature of the order passed by the State Transport Appellate Tribunal it was open to the appellants to challenge it by means of a single petition. The appellants of both the appeals before the State Transport Appellate Tribunal were impleaded as parties to the petition and thus there was nothing wrong in the frame of the petition and nothing to prevent the issue of a writ of certiorari in case the appellants were found entitled to it.

7. From what we have held above it naturally follows that a single special appeal lies against the judgment of the learned single Judge. There was only one writ petition before the learned Judge and he delivered only one judgment. One special appeal against that judgment is therefore quite competent. As we have noted above, upon an objection raised by the respondents, one more special appeal (No. 553 of 1966) was filed by the appellants by way of precaution. This appeal was filed beyond time but the appellants claimed that they were entitled to the benefit of Section 5 of the Limitation Act. The respondents filed no counter-affidavit in reply to the affidavit filed by the appellants in support of their claim and even in the course of arguments on their behalf subsequent to the filing of the other appeal it was not urged that the appellants are not entitled to the benefit of Section 5 of the Limitation Act, and that special appeal No. 553 of 1966 is barred by limitation. Indeed, no objection as to any procedural defect in the appeals was, thereafter, raised on behalf of the respondents. In the circumstances of the case we are of opinion that the delay in filing special appeal No. 553 of 1966 should be condoned, and we accordingly do so. There are thus two special appeals against the judgment of the learned single Judge, but, as we have held above, one single appeal was quite sufficient, and thus even if special appeal No. 553 of 1966 had not been filed or the appellants had not been entitled to condonation of delay in filing it the position would not have been different.

8. There is another matter to be disposed of before taking up the merits of the appeals. On an application made by the appellants after the filing of special appeal No. 234 of 1966 this Court ordered that the proceedings before the Regional Transport Authority pursuant to the order of the State Transport Appellate Tribunal be stayed. The Regional Transport Authority did not properly appreciate the effect of the stay order and on May 21, 1966 it proceeded to consider the pending applications for permits for the route in question and filled up three vacancies by granting three permits --one to appellant No. 1, one to appellant No. 2, and one to appellants Nos. 4 and 5 jointly leaving the fourth vacancy to be filled up later. On October 10, 1966 appellants Nos. 1 to 4 and 5 who were grantees of the aforesaid three permits made an application for permission, to withdraw special appeal No. 234 of 1966 and the application was allowed on October 11, 1966. What the above mentioned appel-lants really intended was that they should be permitted to withdraw from the ap-peal and it was this prayer which can be said to have been granted. It appear that, subsequently, upon a correct inter pretation of the stay order passed by thi Court, the Regional Transport Authority vacated the order granting the said three permits and by its communication dated December 17, 1966 informed the grantees of : its decision and directed them to deposit their permits. Thereupon appellant : Nos. 1 to 4 and 5 made an application tc this Court on January 4, 1967 praying that the order dated October 11, 1966 permitting them to withdraw their appeal be recalled and they be permitted to pursue their appeal. On behalf of respondents Nos. 3 and 4 a counter-affidavit was filed stating that the application was not bona fide, but at the hearing of the appeal before us no argument was addressed to us by the learned counsel for the respondents on this aspect of the case.

We have, however, considered the matter and we think that the order permitting withdrawal of appeal by appellants Nos. 1 to 4 and 5 should be vacated. The said four appellants were led into filing the application for withdrawal because of the permits granted to them on May 21, 1966 and the order granting the permits having been subsequently vacated as due to a misunderstanding of the order of this Court we regard it just and proper that the order permitting withdrawal of the appeal by the abovementioned four appellants be also vacated and we accordingly do so. We may also note that even if special appeal No. 234 of 1966 is deemed to be withdrawn so far as appellants Nos. 1 to 4 and 5 are concerned the other special appeal No. 553 of 1966, still remains on behalf of all the appellants, and further that appellant No. 3 of special appeal No. 234 of 1966 who did not withdraw from the appeal is at all events entitled to press it.

9. We may now turn to the merits of the appeal. The first question that arises for consideration is whether in view of the decision of their Lordships of the Supreme Court in Abdul Mateen's case, AIR 1963 SC 64 the order of the Regional Transport Authority by which he granted permits to the appellants was invalid and had to be set aside by the State Transport Appellate Tribunal. In that case (to reproduce the facts substantially in the words of the decision) the Regional Transport Authority while dealing with applications made to it on its advertisement for two vacancies on the route concerned made a certain choice and passed an order under Section 48 of the Motor Vehicles Act 1939 (as amended by Bihar Act XXVII of 1950). There were then ap peals to the Appellate Authority which made modifications in the orders passed by the Regional Transport Authority but both these authorities proceeded on the basis that there were only two per-mits to be issued, that being the number fixed under Section 47(3). Then there was a revision under the Bihar Amendment Act by one of the aggrieved persons, the grant of the permit to whom had beer set aside by the Appellate Authority. The revision was heard by the Minister for Transport and he upheld the order of the Appellate Authority. But while doing so, he felt that the ends of justice would be met if an additional permit was granted to the person whose permit had been cancelled by the Appellate Authority and, therefore, allowed him service on the route. Thereupon a disappointed applicant for permit filed a writ petition before the Patna High Court challenging the order of the Minister for Transport, The main contention of the petitioner was that the grant of an additional permit was wholly unjustified, particularly in face of the far superior claim of the petitioner as compared to that of the person to whom it was granted. The High Court accepted the contention that the State Government had no power when dealing with applications under Section 64-A of the Motor Vehicles Act (as amended by Bihar Act XXVII of 1950) to increase the number of the permits from two which was the limit fixed by the Regional Transport Authority to three, and its order granting the third permit was without jurisdiction. That part of the order by which a third permit was granted by the State Government was accordingly set aside. There was then by, special leave, an appeal to the Supreme Court by the grantee of the additional permit. Their Lordships of the Supreme Court said that the main question for decision in the appeal was whether the State Government acting under Section 64-A of the Bihar Amendment Act had the power to increase the number of permits for which applications had been invited by the Regional Transport Authority and in deciding that question their, Lordships examined the whole scheme of the Act in the matter of granting stage carriage permits and observed :

'It will be clear from this scheme of the Act that the main section for the grant of a stage carriage permit is Section 48 and in passing an order granting or refusing to grant a stage carriage permit, the Regional Transport Authority has to act subject to the provisions of Section 47. Section 57 is a procedural section and provides for the procedure in applying for and granting permits. The power of the Regional Transport Authority to grant stage carriage permits is to be found in Section 48 and that power is subject to the provisions of Section 47. Section 47 (1) lays down matters for which the Regional Transport Authority shall have regard when considering an application for a stage carriage permit and Section 47 (3) gives power to the said authority having regard to the matters mentioned in Sub-section (1) to limit the number of stage carriages generally etc. It would be clear therefore that when the Regional Transport Authority proceeds in the manner provided in Section 57 to consider an application for a stage carriage permit and eventually decides either to grant it or not to grant ii under Section 48 its order has to be subject to the provisions of Section 47, including Section 47 (3) by which the Regional Transport Authority is given the power to limit the number of stage carriages generally etc. Therefore, if the Regional Transport Authority has limited the number of stage carriages by exercising its power under Section 47 (3), the grant of permits by it under Section 48 has to be subject to the limit fixed under Section 47 (3). We cannot accept the contention on behalf of the appellant that when the Regional Transport Authority following the procedure provided in Section 57, comes to grant or refuse a permit it can ignore the limit fixed under Section 47 (3), because it is also the authority making the order under Section 48. Section 47(3} is concerned with a general order limiting stage carriages generally etc. on a consideration of matters specified in Section 47 (1). That general order can be modified by the Regional Transport Authority, if it so decides, one way or the other. But the modification of that order is not a matter for consideration when the Regional Transport Authority is dealing with the actual grant of permits under Section 48 read with Section 57, for at that stage what the Regional Authority has to do is to choose between various applicants who may have made applications to it under Section 46 read with Section 57. That in our opinion is not the stage where the general order passed under Section 47 (3) can be reconsidered, for the order under Section 48 is subject to the provisions of Section 47, which includes Section 47 (3) under which a general order limiting the number of stage carriages etc., may have been passed. Section 57 (2) shows that an application for permit may be made at any time not less than six weeks before the date on which it is desired that the permit shall take effect or if the Regional Transport Authority appoints dates for the receipt of such applications, on such dates. All applications, whether received one way or; the other, have to be dealt with in themanner provided by Section 57 and the final order for grant of stage carriage permit has to be passed under Section 48. But, at that stage, as we have already pointed out, the Regional Transport Authority is only considering whether the applications made before it are to be granted or not and has to choose between various applicants where there are more applicants than the number of vacancies which might have been advertised or there are more applicants than the number limited under Section 47 (3). The scheme of the Act therefore is that a limit is fixed under Section 47 (3) and the applications received are dealt with in the manner provided by Section 57 and permits can be granted under Section 48 subject to the limit fixed under Section 47(3).'

According to the above quoted observations, as we understand them, the legal position is this. First the number of stage carriages for which permits may be granted has to be fixed under Section 47 (3) of the Motor Vehicles Act and when, after fixing the number, the Regional Transport Authority proceeds under Section 48 of the Act to grant permits it has to limit the permits granted by it to the number fixed under Section 47 (3) and it cannot grant permits in excess of that number. The Regional Transport Authority has the power to vary the number fixed by it under Section 47 (3) but the variation must be made prior to and remain dissociated from the grant of permits under Section 48. The matters to be taken into account in fixing the number of stage carriages for which permits are to be granted being quite distinct from matters to be considered in granting permits, the fixation of the number and the grant of permits have to be done separately in separate stages. The stage relating to fixation of the number of permits precedes the stage relating to the grant of permits, and these two things cannot be mixed up and done together. Any variation of the number originally fixed must also be effected before the grant of permits under Section 48 and if no such variation has taken place it is not open to the Regional Transport Authority when considering the applications for grant of permits under Section 48 to ignore the number fixed by it, originally or by variation, under Section 47 (3) and to grant permits in excess of it.

10. Let us now see what actually happened in the instant case. We have before us a certified copy of the resolution of the Regional Transport Authority relating to the increase in the number of stage carriages for which permits were to be granted (sic) was raised from four to six and to the actual grant of permits. The resolution clearly shows that the increase in the number preceded the consideration of the applications for permits and it was only after the number had been increased to six that the Regional Transport Authority took up the question of the grant of permits. The resolution states :

'Before considering the suitability of the applicants for the grant of permits on this route vis-a-vis each other on the route the R. T. A. considered the question of relimitation of the strength as some of the members were of the opinion that strength should be raised to six instead of four. After due consideration of the fact that the route went upto the border of Nepal Territory, from where quite a good many passengers come every day for Nanpara and Baharaich, the R. T. A. increased the strength to six .....The R. T. A. then took up consideration of the applications.'

11. It is true that the increase in the number of vacancies and the grant of permits were both done by the Regional Transport Authority at the same meeting and its decisions in regard to both these matters were incorporated in the same resolution. But the question as to whether the number of stage carriages for which permits were to be granted should be increased was kept apart from the question as to who should be granted permits, and the former question was determined not only prior to the second question but also in the light of only such matters as were relevant to it. The fact that both these questions were considered and decided at the same meeting and the decisions were incorporated in the same resolution did not, therefore, render the decision illegal. Supposing that the Regional Transport Authority had in a meeting held on a previous day or on the same day first decided to vary the number originally fixed under Section 47 (3) and had thereafter proceeded in another meeting to grant permits under Section 48, could the variation and the subsequent grant of permits be said to have been illegal? The answer should, in our opinion, clearly be in the negative. Were then, the variation and the grant of permits illegal merely by reason of the fact that they were both done at the same meeting?

What appears to be the essence of the matter is that the two aforesaid acts should constitute two distinct and dissociated stages in the procedure relating to the grant of permits and the first stage should precede the second. If the second stage followed the first after some interval of time and only such considerations influenced the decision at the first stage as could legitimately be taken into account in the fixation or variation of the strength of permits on the route it is in our opinion immaterial what the interval of time separating the two stages was. This we understand to be the principle laid down by their Lordships of the Supreme Court in Abdul Mateen's case.

12. We have been shown an uncertified copy of the judgment D/- 27-10-1967 of the Supreme Court in Civil Appeal No. 95 of 1965 Jaya Ram Motor Service v. Sri Rajarathinam and counsel for both the parties have placed reliance on it. In that case the view expressed in Abdul Mateen's case was followed and with reference to the facts of the case it was observed :

'In the present case, the Authority has already resolved to introduce a new bus route and invited applications for a permit under Section 57 (2). It could no doubt have acted under Section 47 (3) and modified its earlier decision. Instead, what it did was that while considering the question as to who amongst the 34 applicants should be granted that permit, i.e., at the stage not under Section 47(3) but under Section 48 (1), it decided to refuse all applications on the ground that there was no longer any need for any such permit. In other words, though the earlier order was still intact that Authority rejected the applications on the ground that there was no need for any fresh permit. The order was clearly contrary to the previous order passed under Section 47 (3) and therefore cannot be said to be in consonance with Section 47 as required by Section 48 (1). The order was not one under Section 47 (3) but under Section 48 (1) refusing thereby the applications including those of the appellant and the respondent and was therefore subject to an appeal under Section 64 (1) fa). The respondents as also the appellant were therefore entitled to appeal against such an order.'

13. These observations support us in our interpretations of the decision in Abdul Mateen's case, AIR 1963 SC 64 and make two things clear. Firstly, Section 47 (3) not only provides for the fixation of the number of stage carriages for which permits may be granted but also empowers modification of the decision regarding the number. Secondly, so long as the decision reached under Section 47(3) with regard to the number remains intact and is not modified the decision under Section 48 has to conform to it, the necessary implication being that if the number originally fixed under Section 47 (3) has been modified the decision under Section 48 must again be in conformity with the modification.

14. We may in this connection refer to the decision of a learned single Judge of this Court in : AIR1965All242 to which reference has been made in the judgment under appeal before us in another connection. Dealing with what may be done under Section 47 (3) and when the learned Judge observed :

'There is no provision in the Act which prohibits proceedings under Section 47 (3) being started after applications have been invited under Section 48 of the Act and there is nothing in the judgment of Abdul Mateen's case, AIR 1963 SC 64, to that effect. No doubt the proceedings under Section 47 (3) are different from those under Section 48 read with Section 57 of the Act and the law requires separateness i.e., the separate identity of the two proceedings to be maintained. Learned counsel for the respondents has not been able to urge any valid ground on the basis of which it could be held that if during the continuance of the proceedings under Section 48 read with Section 57 of the Act, the R. T. A. has before it material to suggest an increase in the strength, it is powerless to do anything until those proceedings are over, permits are granted and the matter in appeal decided and possibly a writ petition in this Court disposed of. It would result into great public inconvenience, unnecessary duplication and waste of labour and money if that was held to be the law.'

Emphasis was thus laid by the learned Judge on whether the raising of the strength was on grounds relevant to it and was antecedent to the actual decision under Section 48. Referring to the facts of that case the learned Judge proceeded to say :

'Having given what I consider to be the ratio of Abdul Mateen's case, AIR 1963 SC 64, I now proceed to see whether that ratio can be applied to the facts before us. In the present case what had happened was that the meeting of the R. T. A. continued from 16th to 24th October 1962. There is controversy between the parties as to on which date the strength on the route was increased from 15 to 20, but one thing is certain and there is no controversy on that point that the strength was so increased before the applications had been disposed of and the permits granted. The question therefore that requires consideration is whether in view of these facts, the present case is hit by the rules laid down by their Lordships in Abdul Mateen's case, AIR 1963 SC 64. As I see it, even though the two proceedings that is one under Section 47 (3) of the Act and the other under Section 48 read with Section 57 of the Act, were held in the same meetings, almost simultaneously, notionally they were two different proceedings and it is clear from the proceedings of the R. T. A. itself that the decision arrived at under Section 47 (3) of the Act increasing the strength of the route was taken earlier than the decision with regard to the grant of permits, I am therefore ol the opinion that the case of Abdul Mateen, AIR 1963 SC 64, is clearly distinguishable.'

15. For the reasons stated above it seems to us obvious that the order of the Regional Authority granting permits to the appellants was in no manner contrary to what had been laid down in Abdul Mateen's case, AIR 1963 SC 64 and in conceding that in view of that case the order of the Regional Transport Authority had (and?) its meeting on April 15, 1961 was invalid and should be set aside the counsel for the appellants (respondents before the State Transport Appellate Tribunal) was clearly mistaken. It is not necessary for us to embark upon a speculation as to what exactly the nature of that misapprehension was which led the counsel for the appellants to make the concession; but, if we may make a guess, it appears that he either thought that the Regional Transport Authority had no power to raise the strength of permits or that the raising of the strength could not have been done at the same meeting at which the permits were subsequently granted. Neither of these conclusions, we think, follow from Abdul Mateen's case, AIR 1963 SC 64, the first being contrary to what has been expressly laid down in the case, and the second being not supported by the observations made there and based upon an incorrect and upon a too narrow and formalistic construction of the word 'stage' used in the observations.

16. The question then is as to whether the appellants are bound by the concession made by their counsel before the State Transport Appellate Tribunal and it is not open to them to question the correctness of the order passed as a result of the concession. It cannot be denied that the concession related to the true meaning and effect of a declaration of law made by the Supreme Court and its impact on the order under appeal before the State Transport Appellate Tribunal. Obviously, therefore, it was an admission on a question of law, and it is well settled that an erroneous admission on a question of law made by a party or his agent is not binding and it does not preclude the party from making an assertion contrary to the admission and from seeking the relief to which on a proper construction of the law he is entitled. We will draw attention to only a few authorities bearing on the point.

17. In one of the connected suits decided by the Supreme Court in. Banarsi Das v. Kanshi Ram : [1964]1SCR316 the question was as to when a partnership had been dissolved. In the plaint the plaintiff had alleged that the partnership being at will it stood dissolved on May 13, 1944 when a particular suit was filed, Banarasi Das defendant had in his written statement admitted the above facts, but in the appeal before the High Court it was contended by him that that portion of the decree of the court below which declared the partnership to have been dissolved on May 13, 1944 was incorrect and should be set aside. The High Court refused to permit him to urge that point in view of the admission made by him in his written statement. Dealing with this aspect of the case, the Supreme Court observed :

'In the plaint in the present suit the plaintiff Kundan Lal alleged in para 10 that the partnership being at will it stood dissolved on May 13, 1944, when Sheo Prasad filed suit No. 105 of 1944 in the court of the Sub-Judge Lahore. No doubt, as pointed out by the High Court, Banarasi Das had admitted this fact in his written statement at not less than three places. The admission, however, would bind him only in so far as facts are concerned but not in so far as it relates to a question of law.'

18. In Kali Das Dhanjibhai v. State of Bombay : 1955CriLJ193 the facts were that the appellant had given a particular description of his establishment in the application for registration and the question was whether that description was to be regarded as final in judging the true legal character of the establishment. In regard to this question the Supreme Court observed as follows :

'The learned High Court Judges were influenced by matters which we consider inconclusive. The appellant applied for registration under the Bombay Act and in the statement made under Section 7 he called his establishment a 'workshop' and described the nature of his business as a 'factory'. The learned Judges considered that this imported admission that his establishment was a 'shop' because of the use of the word 'shop' in 'workshop'. This might have raised an inference of fact against the appellant had nothing else been known but when the facts are fully set out as above and admitted, the appellant's opinion about the legal effect of those facts is of no consequence in construing the section. No estoppel arises.'

19. Punjabai Bhilasa v. Bhagvandas Kisandas, AIR 1929 Bom 89 was a case in which it had been conceded in the lower court that Section 70 of the Contract Act had no application and with regard to that concession the Bombay High Court remarked that a pleader's admission on a pure question of law is not binding on his client and amounts to no more than his view that the question is unarguable.

20. Secy. of State v. Shibaprosad Jana, AIR 1919 Cal 972 dealt with a case where in a suit to obtain resettlement the right of the plaintiff to get a fresh lease had been conceded by the defendant's pleader in the trial court. The Calcutta High Court, relying upon the two decisions of the Judicial Committee, held that an erroneous admission by a counsel on a point of law is of no effect and does not preclude the party from obtaining his legal rights.

21. In Jagwant Singh v. Silan Singh, (1899) ILR 21 All 286, the facts were that in mutation proceedings the parties had made a joint application, stating that they owned and possessed the property left by the deceased owner in certain shares and praying for mutation in accordance with the shares specified in the application, and the application had been granted. In a suit relating to the property the District Judge held that the plaintiff who was a party to the said application was bound by his admission and dismissed his claim which was contrary to it. This view of the District Judge was not accepted by a learned Judge of this Court and he held :

'In appeal here It is contended by the learned Vakil for the appellants, who has argued the case very ably that the plaintiff's admission in the mutation proceedings forms no bar to the assertion of Ms legal rights in the present suit. I am of opinion that this contention must be sustained. When, in the mutation proceedings, the plaintiff stated that he and the two sets of defendants were, on Salig Singh's death, the owners of his property in Banbhirpur in equal shares, he made, no doubt under a misapprehension as to what were his legal rights, a mistaken statement of law. By law the plaintiff was the sole owner. Now, it has been held that an admission of a 'thing' so as to make the admission matter of estoppel within the meaning of Section 115 of the Evidence Act in the case Juttendro Mohan Tagore v. Ganen-dra Mohan Tagore, (1872) L. R. Sup. I. A. 47, their Lordships of the Privy Council observed at page 71 of the judgment : 'the plaintiff is not bound by aa admission on a point of law, nor precluded from asserting the contrary in order to obtain the relief to which, upon a true construction of the law, he may appear to be entitled'.

22. We would not multiply authori-ties any further. The position' clearly is that the concession made by the learn-ed counsel for the appellants before the State Transport Appellate Tribunal was due to an erroneous opinion on a question of law and it cannot stand in the way of the appellants in getting the relief to which they may be found entitled.

23. Reliance on behalf of the respondents was placed in this connection oft : AIR1965All242 (Supra) and it was urged that quite apart from the concession regarding the effect of Abdul Mateen's case, AIR 1963 SC 64 on the order of the Regional Transport Authority, the counsel for the appellants further agreed to the case being sent back to the Regional Transport Authority with a direction to refill the vacancies, and the appellants cannot, therefore, now assail the correctness of the order to that effect. We do not find it possible to accept this contention. The order of the Tribunal clearly indicates that the concession was confined only to how the decision in Abdul Mateen's case. AIR 1963 SC 64 affected the order of the Regional Transport Authority and it did not extend to the manner in which the appeals were to be disposed of. Further, the order of remand and the direction that the Regional Transport Authority would fill up the vacancies according to law had for its sole basis the concession made by the counsel for the appellants. In these circumstances it is not possible to hold that there were two separate and independent concessions by the counsel for the appellants, one in regard to the invalidity of the order of the Regional Transport Authority in the light of the Supreme Court decision and the other in regard to the manner in which the appeals were to be disposed of, and that even if the first concession is ignored the second concession itself precludes the appellants from challenging the order of the Tribunal.

It was also faintly suggested by the learned counsel for the respondents that the concession that the order of the Regional Transport Authority should be set aside was unconnected with the concession regarding the invalidity of the order and the former concession was not a concession on a question of law and was, therefore, binding upon the appellants. This suggestion is wholly without substance. There can be no doubt that the two concessions were intimately connected as cause and effect and the order itself shows that in unmistakable terms. In : AIR1965All242 it was certainly observed that 'inasmuch as the operative portion of the order is based upon the consent of the parties and on an admission made before the Tribunal by the counsel for the parties, it cannot and need not be quashed' but the nature and the circumstances of the consent and the admission made in that case are not clear from the judgment and there is nothing in it to indicate that the consent and the admission were based upon any misapprehension of law. The case therefore, does not help the respondents. It would be useful in this connection to refer to the case of Kamta Misir v. Chait Narain Singh : AIR1934All531 . The facts of the case were that two suits for pre-emption were filed by persons of equal status, one of them by Kamta Prasad and his son Chandi Prasad and the other by Beni Madho. The counsel for Kamta Prasad and Chandi Prasad made a statement that as his clients formed a joint Hindu family they were entitled to one half of the property sought to be pre-empted. The trial Court and the first appellate court decreed both the suits for half a share each. Dealing with the effect of the statement made by the counsel Mukerji, J. observed :

'On the merits, the question is whether the two plaintiffs, father, and son, are to be treated as two claimants for pre-emption, or whether as one because the family is joint. As a question connected with this I have to find whether the statement of the pleader recorded at p. 42C of the record amounted merely to an admission on a point of law which is not binding on the plaintiffs or whether it amounted to a request to the court that whatever might be the legal title of the plaintiffs, they would be satisfied if a decree was made for one half of the property in favour of the two plaintiffs ..... The language of the pleader indicates that what he stated was an expression of his opinion. It is nonetheless an expression of the pleader's opinion, although the Munsif thought it relieved him from the necessity of deciding the point. I hold that the plaintiffs are not bound by the statement of their pleader.'

24. Applying to the instant case the test which was applied by the learned Judge in the above case, it is not possible to say that the counsel for the appellants argued to the order of the Regional Transport Authority being set aside irrespective of the validity or invalidity of the order passed by the Regional Transport Authority. The position clearly is that the entire order of the Tribunal had for its foundation an admission on a question of law which, we find, was erroneous, and it is accordingly open to the appellants to challenge its correctness.

25. The answer to the question whether the State Transport Appellate Tribunal applied its mind to and came to any conclusion of its own on the effect of 'Abdul Mateen's case, AIR 19G3 SC 64 on the order of the Regional Transport Authority should clearly be in the negative. The order of the Tribunal nowhere mentions that the Tribunal accepted the correctnesss of the argument that in view of the decision of the Supreme Court in Abdul Mateen's case AIR 1963 SC 64 the order of the Regional Transport Authority was invalid and should be set aside and all that it says is that the said argument was advanced by the learned counsel for the appellants (respondents here) before the Tribunal and there was no objection from the opposite party. No doubt in the counter-affidavit filed in this Court by Syed Ziyarat Hussain, Reader of the State Transport Appellate Tribunal, who claims to have been present at the time of the hearing of the appeals, it has been stated in para 7 that the Tribunal was of opinion that the case was covered by the decision reported in AIR 1963 SC 64 which position was conceded by the counsel for the respondents. It is however, difficult to accept the affidavit of the Reader in proof of the Tribunal's opinion in face of the order itself; but even if this statement were to be accepted the position would not change. The order of the Tribunal would even in that case suffer from a serious infirmity. It would certainly be then free from the defect that the Tribunal did not apply its mind to and arrive at its own conclusion on a question of law, but it would be subject to the defect of being based upon an erroneous view of law taken by the Tribunal itself.

26. We may also point out that, as noted above, grantees of two permits had not lifted their permits and the Regional Transport Authority had consequently cancelled their permits on September 19, 1961. On May 15, 1963, therefore, when the Tribunal disposed of the appeals there were in existence four permits only and the number of permits did not, therefore, exceed the number originally fixed under Section 47 (3).

27. After having carefully considered the arguments of the learned counsel for the parties we find that the order of the State Transport Appellate Tribunal was manifestly erroneous and it ought to have decided the appeals on merits. We further hold that the appellants are not precluded from challenging the correctness of the order passed by the Tribunal.

28. We accordingly allow both the appeals and set aside the judgment of the learned single Judge. The order of the State Transport Appellate Tribunal dated May 15, 1963 is quashed and the Tribunal is directed to hear and decide appeals Nos. 209 of 1961 and 332 of 1961 on merits. In the circumstances of the case we make no order as to costs.


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