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Mahabir Prasad Sharma and anr. Vs. the State Transport (Appellate) Tribunal, U.P., Lucknow and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 4197 of 1971
Judge
Reported inAIR1972All186
ActsMotor Vehicles Act, 1939 - Sections 134; Constitution of India - Article 226
AppellantMahabir Prasad Sharma and anr.
RespondentThe State Transport (Appellate) Tribunal, U.P., Lucknow and ors.
Appellant AdvocateM.L.P. Naithani, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition allowed
Excerpt:
.....positions left - applications for renewal of permits came up - objections by two of applicants - granted permit - other applicants filed writ petition - no jurisdiction with regional transport authority to grant temporary permit. - - 1 challenged the aforesaid orders of the appellate tribunal, as well as that of the regional transport authority rejecting their applications. (2) no order made by a comptent authority under this act shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings, unless it appears to the prescribed appellate authority or revisional authority, as the case may be, that such error, omission or irregularity has, in fact, occasioned a failure of justice. power to grant a temporary permit is..........appeal against that order is pending before the appellate tribunal. during the pendency of such appeal, appellate tribunal is empowered to direct that the permit, notwithstanding the expiration of the term shall continue- to be valid till the appeal is disposed of. the power conferred on the appellate tribunal under sub-section (1-a) of section 134 of ,the act is 'limited to the case of appeals arising out of orders of the original authority, refusing to renew the existing permits, while under sub-section (1) of section 134 the power conferred on the appellate authority to issue directions suspending the operation of order passed by the regional transport authority is general. the act does not confer any specific power on the appellate tribunal to grant temporary permit during.....
Judgment:
ORDER

K.N. Singh, J.

1. By means of the Present Petition under Article 226 of the Constitution of India, orders passed by the State Transport (Appellate) Tribunal granting temporary permits to Mrs. B.O. Hearn and Shri Mahabir Prasad Sri. vastava, opposite parties 2 and 3 have been challenged.

2. In order to appreciate the controversy between the parties, a brief narration of facts is necessary. Delhi Garh Mukteshwar route is an Inter Statal route. In 1959 there existed 15 vacancies on that route which were required to be filled up by the Transport authorities of Uttar Pradesh. The Regional Transport Authority. Meerut In vited applications for grant of stage carriage permits on the said route. The petitioner No. 1 and several others including Shri B.O. Hearn, husband of opposite party No. 2, made applications for the grant of stage carriage permits on the said route. Before these applications could be considered on merits, 13 permits were issued by the Regional Transport Authority, Meerut to displaced operators under Section 680 (2) of the Motor Vehicles Act (hereinafter referred to as the Act). Thus only two vacancies remained to be filled up. Applications for renewal of permits of the existing operators came up for consideration before the Regional Transport Authority in 1963. Shri B.O. Hearn and Shri Mahabir Prasad, opposite party No. 3, opposed the renewal of applications and pressed their claim for grant of permits to them. The renewal applications were, however, allowed and Mahabir Prasad and B.O. Hearn were not granted any permit. Each of them filed appeals against the order of the Regional Transport Authority, Meerut. The appeals were allowed by the State Transport (Appellate)Tribunal (hereinafter referred to as the Appellate Tribunal) and further granted two stage carriage permits -- one to Shri B.O. Hearn and another to opposite party No. 3, Shri Mahabir Prasad. These permits were granted against the two vacancies without considering the applications which were pending consideration for the two vacancies. Mahammad Yasin, one of the affected applicants, filed a Writ Petition and challenged the validity of the order of the Appellate Tribunal. Meanwhile, the pending applications were considered by the Regional Transport Authority and rejected on the ground that since the two vacancies had already been filled up by the Appellate Tribunal, there remained no vacancy. By means of Writ Petition No. 5245 of 1964 (All), the petitioner No. 1 challenged the aforesaid orders of the Appellate Tribunal, as well as that of the Regional Transport Authority rejecting their applications.

3. On 17-5-1968, a learned Single Judge of this court allowed Writ Petition No. 5245 of 1964 (All), filed by petitioner No. 1 and quashed the order of the Appellate Tribunal, granting permanent stage carriage permits to B.O. Hearn and Mahabir Prasad. The judgment of the learned Single Judge was upheld in appeal also and the matter was remanded to the Appellate Tribunal for considering the case afresh. In pursuance of the order of remand, the Appellate Tribunal considered the matter and lay its order dated 3-5-1969, it remanded the case to the Regional Transport Authority for considering all the applications afresh. Mrs. B.O. Hearn who had succeeded to her husband on his death, filed Writ Petition No. 250 of 1970 before the Lucknow Bench of this Court challenging the aforesaid order of the Appellate Tribunal, remanding the case to the Regional Transport Authority for considering all the applications on merits. That Writ Petition was allowed by a Division Bench of this Court and order of the Appellate Tribunal, remanding the case to the Regional Transport Authority, was quashed. The Bench directed the Appellate Tribunal to decide the case in accordance with law. Since then the matter has been pending before the Appellate Tribunal and during the pendency of the two appeals of opposite parties Nps. 2 and 3 before the Appellate Tribunal temporary permits were granted by the Appellate Tribunal on 1-7-1971 to each of the two contesting respondents Nos. 2 and 3. Validity of these two permits is under challenge in the present petition.

4. The learned counsel for the petitioner has urged that Appellate Tribunal has no power or jurisdiction togrant any temporary permit during the pendency of appeal against an order ofthe Regional Transport Authority rejecting the appellants' applications for grant of stage carriage permits to them.

5. Appeal against an order of Regional Transport Authority, rejecting application for the grant of a stage carriage permit, is provided in Section 64 of the Act According to Section 64 of the Act, an Appellate Tribunal after giving an opportunity to the person concerned and to the original authority is empowered to give decision on appeal, its order is final. The power conferred on the Appellate Tribunal to decide an appeal can be exercised only after hearing the parties concerned and the original authority. Section 134 of the Act confers power on the Appellate Tribunal to pass interim orders pending the disposal of appeal. Section 134 runs as under-

'Section 134. Effect of appeal and revision on orders passed by original authority:-- (1) Where an appeal has been preferred or an application for revision has been made against any order passed by an original authority under this Act, the appeal or the application for revision shall not operate as a stay of the order passed by the original authority and such order shall remain in force pending the disposal of the appeal or the application for revision, as the case may be, unless the prescribed appellate authority or revisional authority otherwise directs.

(1-A): Notwithstanding anything contained in Sub-section (1), if an application made by a person for the renewal of permit has been rejected by the original authority and such person has preferred an appeal or made an application for revision under this Act against such rejection, the appellate authority or, as the case may be, the revisional authority may by order direct that the permit shall, notwithstanding the expiration of the term specified therein continue to be valid until the appeal or application for revision is disposed of.

(2) No order made by a comptent authority under this Act shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings, unless it appears to the prescribed appellate authority or revisional authority, as the case may be, that such error, omission or irregularity has, in fact, occasioned a failure of justice.'

6. Sub-section (1) of Section 134 lays down that pendency of an appeal against the order of the original authority shall not operate as stay of the order passed by the original authority and such an order shall remain in force pending the disposal of appeal. But such order of the original authority may not remain in force if the Appellate Tribunal directs otherwise. Thus the Appellate Tribunal is conferred with powers to stay orders of the Regional Transport Authority during the pendency of appeal before it. Sub-section (1-A) of Section 134 confers further powers on the Appellate Tribunal to pass interim order in favour of an existing operator whose application for renewal of permit is rejected by the Regional Transport Authority and appeal against that order is pending before the Appellate Tribunal. During the pendency of such appeal, Appellate Tribunal is empowered to direct that the permit, notwithstanding the expiration of the term shall continue- to be valid till the appeal is disposed of. The power conferred on the Appellate Tribunal under Sub-section (1-A) of Section 134 of ,the Act is 'limited to the case of appeals arising out of orders of the Original Authority, refusing to renew the existing permits, while under Sub-section (1) of Section 134 the power conferred on the Appellate Authority to issue directions suspending the operation of order passed by the Regional Transport authority is general. The Act does not confer any specific power on the Appellate Tribunal to grant temporary permit during pendency of an appeal.

7. Under the Act, Regional Transport Authority is empowered under Section 62 to grant temporary permit for a period of four months provided the conditions mentioned in the section are found to exist. Power to grant a temporary permit is circumscribed by conditions that it can be granted only if the Regional Transport Authority is satisfied that there was need of conveyance for the passengers on special occasions such as fair and religious gathering or for the purpose of seasonal business or to meet particular temporary need or pending decision an application for the renewal of a permit. First proviso to Section 62 declares that in no case a temporary permit is to be granted in respect of any route or area for which application for the grant of a new permit under Section 46 or Section 54 is pending. This proviso, therefore, makes it clear that if applications for grant of permanent permits are pending, no temporary permits can legally be granted for that route or area. In the present case, admittedly, applications under Section 46 were pending for the grant of stage carriage permits on the route in question, therefore, the Regional Transport Authority or the Appellate Tribunal had no jurisdiction to grant any temporary permit during the pendency of such applications. The order of the Appellate Tribunal is without jurisdiction.

8. In order to appreciate the scope of powers of the Appellate Tribunal to grant temporary permit, we have to consider the extent of powers conferred on it, under the Act. Under Sub-section (1) of Section 134 the Appellate Tribunal is empowered to direct for the suspension of an order of the Regional Transport Authority during the pendency of appeal before it. There may be cases where permit of an appellant is suspended or cancelled by the Regional Transport Authority, on appeal, the Appellate Tribunal is empowered to direct for the stay of the order of suspension or cancellation of the permit during the pendency of such appeal. The words used in Sub-section (1) of Section 134 of the Act make it clear that the only power conferred upon the Appellate Tribunal is to suspend the operation of the order of the Regional Transport Authority. The nature and character of the power conferred under Sub-section (1) of Section 134 of the Act is prohibitory, it does not confer any power to pass mandatory orders. Sub-section (1-A) of the said section however confers powers on the Tribunal to pass mandatory orders only in case of an appeal directed against the order of Regional Transport Authority refusing to renew permit. In a case where an application for grant of a permanent stage carriage permit is rejected by the Regional Transport Authority, the appellate Tribunal cannot exercise its powers under Section 134 and pass any positive order for grant of a temporary permit during the pendency of the appeal because that order in no case would amount to stay of the order of the Regional Transport Authority. The power to grant interim relief as contemplated under Section 134 of the Act does not embrace, the grant of a temporary permit.

9. In an appeal against an order of refusal to grant permanent permit the Appellate Tribunal may uphold the order of the Regional Transport Authority or it may direct the Regional Transport Authority to reconsider the appellants' application on merit or it may itself consider the application on merits and grant permanent stage carriage permit to the appellant. The Appellate Tribunal, however, in such a case cannot legally grant temporary permit to an appellant by way of final relief. An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in any suit or proceedings. Grant of temporary permit by the Appellate Tribunal can in no manner be said to be in aid of on ancillary to grant of permanent permit. The Appellate Tribunal, therefore, is not legally empowered to grant temporary permit pending appeal before it.

10. Similar view was expressed by a Division Bench of this Court in Special Appeal No. 464 of 1958, D/- 6-11-1958 (All). A learned Single Judge also expressed the same view in Writ Petn. No. 4445 of 1965, D/- 8-2-1966 (All). No authority has been placed before me by the learned Counsel for opposite parties in support of the contention that the Appellate Tribunal is empowered to issue temporary permit during the pendency of appeal against an order rejecting the appellant's application for grant of permanent permit. The learned counsel for the respondents has, however, urged that Section 134 is not exhaustive, it is merely illustrative, and further the Appellate Tribunal has inherent jurisdiction to pass interim orders. The respondents' contention is without any substance. Appellate Tribunal is a creature of the Act constituted under Section 44. It is vested only with those powers which are conferred upon it by or under the Act, It is well established principle that Tribunals created under an Act exercise only those powers and functions which are conferred upon them by the Act itself. They cannot exercise any other powers not conferred upon them by the statute, under which they are constituted. Parliament, by enacting Section 134 conferred specific powers on an Appellate Tribunal for exercising jurisdiction in passing interim orders during the pendency of appeals before it. The Legislative intent was, therefore, clear that the Appellate Tribunal is to exercise only those powers which have been conferred upon it under Section 134 and none else. Appellate .Tribunal cannot assume jurisdiction to pass any other order not contemplated by Section 134 of the Act by way of an interim relief, during the pendency of appeal before it. The provisions contained under Section 134 are not illustrative but exhaustive. The words of the said section are clear and, in my opinion, it is not open to any other interpretation.

11. Learned Counsel for the respondents placed reliance on the case of Income Tax Officer, Cannanore v. M.K. Mohammad Kunhi, AIR 1969 SC 430, in support of the proposition that an Appellate Tribunal has by necessary implication authority to grant temporary permits. That case arose out of Income Tax proceedings and in that connection powers of Appellate Tribunal to pass orders of stay during the pendency of appeal before it came up for consideration. There is no provision under the Income Tax Act conferring powers upon the Income Tax Appellate Tribunal to pass any interim order staying recovery of tax from an appellant during the pendency of appeal, although Income Tax Officer is authorised to treat the assessee as not being in default during the pendency of an appeal. The question before the Supreme Court was whether the Income Tax Appellate Tribunal had power to stay recovery of tax during the pendency of appeal before it and in that connection scope of Section 254 of the Income Tax Act was considered. The material part of Section 254 is as follows:--

Section 254:-- Orders of Appellate Tribunal:--

(1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit.

12. The Appellate Tribunal under the Income Tax Act has very wide powers to pass any order in the appeal which it thinks fit as the powers conferred by Section 254 on the Appellate Tribunal are of widest possible amplitude, in the opinion of Supreme Court, it carried by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective. The Supreme Court held that the Appellate Tribunal was vested with the power to grant stay of recovery proceedings by necessary implication and for that purpose doctrine of incidental and ancillary powers was applied. It is noteworthy that in case of Income Tax Act, Legislature did not choose to circumscribe powers of Appellate Tribunal, instead, it conferred a very wide power on the Tribunal when it empowered the Appellate Tribunal to pass such orders which it thought fit. There is a vast difference between the words used in Section 254 of the Income Tax Act and Section 64 of the Motor Vehicles Act. No such power of widest amplitude has been conferred upon the Appellate Tribunal under the Motor Vehicles Act The Legislature then again in the case of State Transport (Appellate) Tribunal has chosen to lay down limits within which the Appellate Tribunal is empowered to issue interim orders as provided in Section 134 of the Act. If the Legislature intended the Appellate Tribunal to be vested with the power of grant of temporary permit, pending appeals before it, it could have conferred such powers under Section 134 on the Appellate Tribunal as it did in the case of rejection of renewal of permits. The absence of conferment of such powers, makes it clear that the Legislature never intended conferment of such powers on the Appellate Tribunal. Then again, there is vast difference between an order of stay, staying the operation of the order appealed against and the passing of a mandatory order, granting temporary permit to an appellant. Power to grant stay is culled out by implication in cases where very wide powers are conferred on an Appellate Tribunal by the statute itself, but the doctrine of implied powers cannot be pressed into service to invest a Tribunal of limited jurisdiction for passing mandatory and positive orders by way of interim relief. The Supreme Court case in my opinion is not relevant for the question under consideration and it does not help the respondents.

13. The learned counsel for the respondents has then urged that since two vacancies are existing on the route in question, public interest would suffer if the plying of vehicles under the temporary permits, granted by the Appellate Tribunal, is quashed. I do not agree with this contention. The order of Appellate Tribunal is totally without jurisdiction and, therefore, it would not be proper to allow the respondents 2 and 3 to ply their vehicles on the route in question under those orders.

14. Lastly the respondents' counsel questioned the locus standi of the petitioners to maintain the present petition. Petitioner No. 2 is an existing operator on the route in question and petitioner No. 1 is an applicant for grant of permanent permit, both of them are adversely affected by the grant of temporary permits to opposite parties Nos. 2 and 3. It is now well settled that an existing operator and a rival operator has locus standi to maintain Writ Petition against grant of temporary permit -- see Shiv Charan Dass v. Regional Transport Authority, 1968 All LJ 279 = (AIR 1969 All 269) (FB).

15. In the result, I allow the petition and quash the orders dated 3-7-1971 of the State Transport (Appellate) Tribunal. Uttar Pradesh, Lucknow, granting temporary permit to opposite parties Nos. 2 and 3. The petitioners are entitled to costs.


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