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Suraj Bhan and ors. Vs. 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. 1003 of 1977
Judge
Reported inAIR1982All276
ActsMotor Vehicles Act, 1939 - Sections 47(3), 48 and 64
AppellantSuraj Bhan and ors.
RespondentState Transport Appellate Tribunal, U.P., Lucknow and ors.
Appellant AdvocateS.K. Dhavan, Adv.
Respondent AdvocateL.P. Nathani, Standing Counsel
DispositionPetition allowed
Excerpt:
.....consider the appeals of the respondents nos. the submission therefore, made by the learned counsel for the petitioner is well founded. 2 and 3, the petitioners clearly have a cause of action for filing the present petition. the case is remanded to the regional transport authority, kumaun to consider the petitioners' applications as well as other applications pending before it in respect of the route in question for all the four vacancies as agreed upon......route is an inter regional route and the major portion of it lies within the jurisdiction of the regional transport authority, nainital. the other portion of route lies within the juris-diction of the regional transport authority, bareilly. 3. an agreement wag entered into between the two transport authorities and was agreed that four stage carriages under an equal number of regular permits should operate on the route. the regional transport authority, nainital, under whose jurisdiction the major portion of the route lay, invited applications for the grant of these four permanent stage carriage permits. in pursuance of the said invitation, 138 persons, including the petitioners nos. 1 to 3 and respondents nos. 2 aad 3, made applications. all these applications were published in the.....
Judgment:
ORDER

S.D. Agrawal, J.

1. This is a petition under Article 226 of the Constitution. The facts, in detail, which have given rise to the present petition, are as under.

2. The route in question is, Haldwani-Bazpur-Rampur via Kala Dongisuar. This route is an inter regional route and the major portion of it lies within the jurisdiction of the Regional Transport Authority, Nainital. The other portion of route lies within the juris-diction of the Regional Transport Authority, Bareilly.

3. An agreement wag entered into between the two transport authorities and was agreed that four stage carriages under an equal number of regular permits should operate on the route. The Regional Transport Authority, Nainital, under whose jurisdiction the major portion of the route lay, invited applications for the grant of these four permanent stage carriage permits. In pursuance of the said invitation, 138 persons, including the petitioners Nos. 1 to 3 and respondents NOS. 2 aad 3, made applications. All these applications were published in the Gazette, as required by Section 57 (3) of the Motor Vehicles Act. 1939 (hereinafter referred to as the Act).

4. All the applications were considered by the Regional Transport Authority, Nainital, after hearing all the applicants on March 21/22. 1977. No final orders were delivered on the said date and the orders were, however, reserved. Ultimately, all the applications were dismissed by the authorities and individual intimation was sent of the rejection of the applications to the applicants concerned.

5. Appeals were filed against the decision of the Regional Transport Authority before the State Transport Appellate Tribunal, U. P., Lucknow. Smt.Shahzadi Begum, respondent No. 2, filed an appeal on 25th April, 1977. Sardar Swaran Singh Giroti filed an appeal on 4th May, 1977. The three petitioners, namely, Suraj Bhan, Tej Chand and Naresh Kumar Khanna, filed appeals on 3rd June, 1977. These facts are clear from the certified copies of the order sheets filed by the parties at the time of hearing of the petition.

6. The appeals of respondent Nos. 2 and 3 were heard by the Appellate Tribunal on 7th June, 1977 and it was directed that decision will be given on 20th June, 1977. On 20th June, 1977, the Tribunal by a common order allowed the appeal preferred by respondent Nos. 2 and 3, granted one permit each on the route, thereby filling in two out of the existing vacancies on the route.

7. As stated above, the petitioners had also filed appeals on 3rd June, 1977, and since the petitioners' appeals were not considered along with the appeals filed by respondents Nos. 2 and 3, and respondents Nos. 2 and 3 were granted permits without hearing the petitioners, the petitioners filed the present writ petition in this Court seeking a writ of certiorari for quashing the order dated 20th June, 77, and a further writ of mandamus was sought for a direction that the Appellale Tribunal should hear and dispose of the appeals of the petitioners along with the appeals filed by respondent Nos. 2 and 3.

8. The writ petition was admitted on 13th July, 1977 and, on the same day, a Bench of this Court directed that the appeals filed by the petitioner be not heard by the Tribunal until further orders of this Court. This order was confirmed by the Bench on 29th July, 1977, with the following orders:--

'Heard counsel for the parties. The appeals filed by the petitioners before the State Transport Appellate Tribunal shall not be heard during the pendency of the writ petition in so far as the relief for restraining respondents 2 and 3 from plying their vehicles on the route in question on the basis of the permits issued to them in pursuance of the order dated June 20, 1977, is concerned, we find no good ground to grant the said relief. The said relief is, accordingly, refused.'

9. The result of the above mentioned order was that the appeals of the petitioners were kept pending before theTribunal and the respondents Nos. 2 and 3 continued to ply their vehicles on the basis of the permits granted to them.

10. This petition came up for final hearing before a Bench of this Court on 24th Oct., 1979, and, after hearing the learned counsel for the parties at some length, the Bench vacated the order dated 29th July, 1977, and directed the Tribunal to decide the appeals of the petitioners within a month from the date on which the certified copy of the order was produced by the petitioner before the Tribunal. It was further observed in the order that the Tribunal would go into the question as to whether the appeals filed by the petitioners were barred by time or not.

11. In accordance with the directions issued by this Court, the Tribunal by an order dated 7th Dec. 1979 heard the appeals of the petitioners on merits. It came to the conclusion that the appeals were not barred by time, and allowed the appeals and remanded the case to the Regional Transport Authority, Kumaun, for consideration and decision on merits. It may be pointed out here that besides the petitioners, many other persons had also filed appeals against the rejection of their applications by the Regional Transport Authority by the same order dated 21/22nd March, 1977. The other appeals also filed by the other persons, who are not parties to the above petition, were also remanded to the Regional Transport Authority, Kumaun for decision of their applications on merits. The ultimate position which emerged, therefore, after the order of the Tribunal was that 14 appeals of other applicants and three appeals of the present petitioners were allowed by the Tribunal and all their cases were remanded to the Regional Transport Authority, Kumaun, for decision on merits.

12. It has been stated at the bar that all these applications are still pending for decision before the Regional Transport Authority, Kumaun. The petitioners, therefore, moved an application for amendment of the petition on 23rd Jan. 1980, which has been allowed by this Court on 5th March, 1980.

13. The main grievance of the petitioners now is that since there were in all four vacancies, two vacancies have been filled by the grant of permits to respondents Nos. 2 and 3, and, as suchtheir applications, after remand, could be considered by the Regional Transport Authority in respect of only two vacancies, though they were entitled for the consideration of their applications in respect of four vacancies, as, according to the petitioners, the order passed by the Tribunal dated 20th June, 1977 filling two vacancies and granting permits to respondent Nos. 2 and 3 is wholly illegal. The petitioners, consequently, have challenged the order dated 20th June, 1977, by means of the present writ petition so that their applications can be considered in respect of all the four vacancies on merits.

14. I have heard the learned counsel for the parties at length. Learned counsel for the petitioners have urged that the petitioners having also filed appeals against the orders dated 2l/22nd March, 1977, the Regional Transport Authority had no jurisdiction to allow the appeals filed by respondent Nos. 2 and 3 without considering the case of the petitioners and without affording them any opportunity of being heard. Learned counsel for the respondent, has, however, contended that the appeals filed by the petitioners were not ripe for hearing and, as such, it was not necessary for the Regional Transport Authority to hear the petitioners at the time when the appeals filed by respondent Nos. 2 and 3 were being considered by the Regional Transport Authority. The learned counsel for the respondents further submitted that the petition does not raise any cause of action and, as such, no relief can be granted in the petition and he has further urged that since the route in question is an inter regional route, Section 47 (3) of the Act does not apply and, as such, it was open to the authorities to choose one person in respect of a particular vacancy, as there could be no fixed number of vacancies in the eye of law and therefore, if the permits have been granted to respondent Nos. 2 and 3 filling two vacancies, it cannot be said that the petitioners' right has, in any manner, been affected and, as such also, he is not entitled to any relief in the present petition.

15. In order to consider the contentions raised by the parties it is necessary to examine the scheme of the Act for grant of stage carriage permits. Section 45 provides that every application for a permit shall be made to the Regional Transport Authority of the region in which it is proposed to use the vehicle or vehicles, and in case it is proposed to use the vehicle in two or more regions, then application has to be made in the region in which the major portion of the proposed route lies. Section 46 makes the provision as to what particulars should be contained in the application. Section 47 lays down the matters which have to be examined before considering the application for the grant of a stage carriage permit. Sub-clause (1) of Section 47 provides that besides the matter referred to in Clauses (a) to (f) the authority shall also take into consideration any representation 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 recognized in this behalf by the State Government or by any local authority or police authority within whose jurisdiction any part of the proposed route lies. Sub-clause (3) to Section 47 empowers the Regional Transport Authority to limit the number of stage carriages for which stage carriage permits may be granted. Section 57 (3) provides for the procedure to he adopted by the Regional Transport Authority after it receives the applications for the grant of stage carriage permit. It specifically provides that the applications shall be made available for inspection at the office of the authority. It shall be published in the manner prescribed with a notice of the date before which representation in connection therewith may be submitted and thereafter it has been further provided that the applications or any representations which are received will be considered. Section 48 confers powers on the Regional Authority to grant stage carriage permits in accordance with the applications or with such modifications as it deems fit or refuse to grant such a permit. In case the Regional Transport Authority refuses to grant a permit then the aggrieved person has been given right to appeal under Section 64 of the Act.

16. From the above scheme it is clear that an application made for the grant of a stage carriage permit has to be considered keeping in mind the number of vacancies which have been fixed under Section 47 (3) of the Act and after consideration of the objections and representation made, if any in respect of application. Normally many applications are made for the same vacancy or vacancies. The Regional Authority, therefore has to consider applications made by various persons in respect of the vacancies which have been fixed under Section 47 (3) of the Act. Each applicant is entitled, therefore, for the consideration of his application in respect of each vacancy. The application cannot be considered in isolation in respect of only one vacancy when in fact there are more vacancies on the route in question, The authority, therefore, has to compare the merits of the various applicants in respect of each vacancy and after considering various factors required by law grant the permits under Section 48 of the Act. Section 47 (3) applies to the Regional routes only. The same principle, however, would apply to the case of inter regional route as in the present case. This would make no difference as in the case of inter regional route the number of vacancies have to be fixed by agreement. In Mohammad Ibrahim v. S. T. A. Madras, AIR 1970 SC 1542 it has been held that the number of vacancies for inter regional or inter State route beyond the frontier of the region will have to be determined by the agreement. The applications, therefore, moved in respect of a particular route where a fixed number of vacancies have been agreed upon in the case of an inter regional route, the said applications have to be considered in respect of the vacancies so agreed upon.

17. The Regional Transport Authority has to choose between the various applicants who have made applications to it under Section 46 of the Act and then after comparing the merits of each of them grant the applications or reject them;

18. In Gandhara Transport Company v. State of Punjab, AIR 1964 SC 1245 at p. 1248, Shah, J. (as he then was) opined as follows :--

'In considering the issue of regular permits an elaborate procedure has to be followed including a hearing, demanding a judicial consideration of the claims of individual applicants inter se in the context of the wider interest of the general public'.

19. From the above principle enunciated by the Supreme Court it is therefore, clear that the applications for the grant of permit in respect of vacancies have to be considered after comparing the relevant need and merits of all the applicants for permits. Since the applicants have a right to get their applications considered in respect of all the vacancies agreed upon, the applications have to be considered and compared in respect of all the vacancies. Since the applicant has a right for consideration of his application in respect of all the vacancies agreed upon, it is not open to the Regional Transport Authority not to consider the applications of certain persons in respect of all the vacancies and in respect of some only. In view of the above, I am of the opinion that the petitioners have a right for consideration of their applications for all the four vacancies which have been agreed upon in respect of the route in question. The order of the State Transport Appellate Tribunal U, P., Lucknow allowing the appeal of Smt. Shahzadi Begum and Sardar Swaran Singh and filling two vacancies without considering the appsais filed by the petitioners is, therefore, wholly without jurisdiction. The petitioners had also a right to get their applications considered for the vacancies which have been filled up by the grant of the permits in favour of Smt. Shahzadi Begum and Sardar Swaran Singh. The petitioners had also filed appeals on 3-6-1977. The impugned order was passed on 20-6-1977. When the appeals of the petitioners were pending the Appellate Tribunal acted illegally and with material irregularity in the exercise of its jurisdiction in not considering the appeals filed by the petitioners which were pending on the 20th of June, 1977 and thereafter filling two vacancies and granting permits to respondents Nos. 2 and 3.

20. In Writ No. 294 of 1985 Chetan Lal v. State Transport Appellate Tribunal, decided on 3-5-1965, R. S. Pathak J. (as he then was) observed as follows :--

'If a number of applicants for permits, where the number of vacancies is less than the number of applicants appeal against the order rejecting their applications, the Appellate Tribunal is bound to consider the respective merits of the several applicants before deciding which of them should be granted permits. To treat each appellant in isolation would be to disregard the principles upon which vacancies must be filled up. The relative merits of the respective applicants for permits must be considered in order to decide who are best entitled to permits in respect of the existing vacancies. That is a duty cast upon the Regional Transport Authority when it proceeds to grant permits, and equally the same duty lies upon the Appellate Tribunal when proceeding to discharge the same function.'

21. This judgment was upheld by the Division Bench of this Court in Spl. Appeal No. 447 of 1975 (1965 ?) decided on 15th April, 1969. I respectfully agree with the dictum laid down by Hon'ble R. S. Pathak, J. in the case of Chetan Lal (supra). Admittedly the appeals of the petitioners were pending decision before 20th June, 1977 and the same have been found to have been filed well within time and as such it was not open to the Appellate Tribunal to consider the appeals of the respondents Nos. 3 and 4 in isolation without considering the appeals of the petitioners. The submission therefore, made by the learned counsel for the petitioner is well founded.

22. Learned counsel for the respondents, however, has urged that since the appeals were not ripe for hearing it was not necessary for the Appellate Authority to have considered the appeals filed by the petitioners. In support of this submission he has relied upon two decisions of the Rajasthan High Court, Surendra Kumar Sharma v. Regional Transport Authority, AIR 1968 Rai 294 and Hari Narain v. Regional Transport Authority, AIR 1970 Raj 200. Both these decisions relate to the stage of consideration of the application for the grant of a permit by the Regional Transport Authority and it was held that unless the application was ripe for hearing it was not mandatory for the Regional Transport Authority to consider the same when it convened a meeting for consideration of such an application. In my opinion this principle could not be made applicable at the stage of appeal. At the appellate stage the question to be considered by the appellate Tribunal is whether the Regional Transport Authority rightly rejected the application of the appellants validly filed or not. It, is incumbent upon the appellate authority toconsider all the appeals which have been filed against the same order at the time when even one appeal against the same order comes up for hearing before it. It is always open to the Appellate Tribunal to reject the appeal as being barred by time or on some other grounds. But once the appeals have been filed, the appeals have to be considered by the Appellate Tribunal together so that the relative merits could be considered when the question of the grant of permit is up for consideration. In the instant case, however, even if the argument of the learned counsel for the respondents is accepted that it is only the appeals which are ripe for hearing which had to be considered then too in the instant case all the three appeals of the petitioners were ripe for hearing as the appeals had been filed by the petitioners on 3-6-1977, on that date the Presiding Judge had directed that the Court fee on the appeals be paid by 18th June, 1977. On 7th June. 1977 all the three appeals of the petitioners came up for orders before the court. On that date the court ordered that the court-fee has already been deposited and 18th July, 1977 be fixed for hearing, and meanwhile the record may be summoned. On 7th June, 1977, therefore, the appeals were ready for hearing. Nothing else had to be done by the petitioners. The direction for summoning the record was to the office of the Tribunal. On 7th June. 1977 itself the same Presiding Officer heard the appeals of Respondents Nos. 2 and 3 on merits being fully aware of the fact that the other three appeals of the petitioners in respect of the same matter had been fixed for final hearing on 18th July, 1977. On 7th June, 1977 the appeals of Respondents Nos. 2 and 3 were heard and 20th June, 1977 was fixed for orders. On 20th June, 1977 the impugned order was passed granting permits to the respondents Nos. 2 and 3. The order dated 20th June. 1977 had been passed by the Appellate Tribunal having full knowledge of the fact that the appeals against the same order were still pending. The procedure adopted by the Tribunal was most uncalled for against all principles of natural justice. In the circumstances the arguments raised by the learned counsel for the respondents supporting the order of the Appellate Tribunal have no merits.

23. In regard to the second submission made by the learned counsel for the respondents that the petitioners had no cause of action, in my opinion, has no merits. I have already held that the petitioners had a right to the effect that their applications be considered in respect of all the four vacancies. The grant of permits to Respondents No. 2 and 3 by virtue of which two vacancies have been filled and now two remain. Since the petitioners have a right for consideration of their applications in respect of two vacancies which have been filled by the grant of permits in favour of Respondents Nos. 2 and 3, the petitioners clearly have a cause of action for filing the present petition.

24. In regard to the last submission made by the learned counsel for the respondents that since Section 47 (3) of the Act does not apply, it is open to the authority to choose one person in respect of a particular vacancy is also in my opinion devoid of merits. I have already discussed above that even if Section 47 (3) applies only to regional routes and not to inter regional routes but in view of the dictum laid down by the Supreme Court in the case of Mohammad Ibrahim (AIR 1970 SC 1542) (supra) the number of vacancies in respect of inter regional route as in the present case can be fixed by agreement. It is not denied that an agreement has been arrived at by the regional authorities in respect of this inter regional route fixing four vacancies. In the circumstances by the mere fact that Section 47 (3) technically is not applicable it cannot be held that the petitioners were not entitled to the consideration of their applications in respect of all the vacancies and that the authorities had the right to choose a particular person for a particular vacancy.

25. In view of the above, I am of the opinion that the petition is liable to succeed and the order passed by the State Transport Appellate Tribunal dated 20th June 1977 is liable to be quashed.

26. Learned counsel for the respondents further urged that since by virtue of the permit granted to the Respondents Nos. 2 and 3 they are already plying their vehicles, the status quo be maintained till the Regional TransportAuthority decided the application afresh after remand in respect of the vacancies. In this connection he has relied upon a decision given in writ petition No. 5210 of 1964 decided on 30th Sept. 1969 by a Bench of this Court consisting of Hon'ble K. B. Asthana, J. and Hon. M. H. Beg. J. In my opinion, this request of the learned counsel is justified because unless suitable directions are given to meet the situation the public will be seriously inconvenienced as there is no other vehicle plying on the route. The respondents NOS. 2 and 3 have been plying their vehicles since 1977 when they were granted permits by the order dated 20th June, 1977. The petition is accordingly allowed. The order of the State Transport Appellate Tribunal dated 20-6-1977 is quashed. The case is remanded to the Regional Transport Authority, Kumaun to consider the petitioners' applications as well as other applications pending before it in respect of the route in question for all the four vacancies as agreed upon. The Regional Transport Authority, Kumaun shall consider the application very expeditiously. Meanwhile, the Respondents Nos. 2 and 3 shall be permitted to ply their vehicles as an interim arrangement only on the terms and conditions as contained in their permits until fresh permits are issued by the Regional Transport Authority, Kumaun after consideration of the applications in accordance with law. It is made clear that the Respondents Nos. 2 and 3 shall ply the vehicles on the authority of the order passed by this Court under Article 226 of the Constitution but they will be subject throughout this period to the regulatory control and orders which may be passed by the Transport Authority under the M. V. Act and the Rules made thereunder as if they have been granted permits temporarily under the Act. It is made clear that by this temporary arrangement no rights would be confer red on Respondents Nos. 2 and 3 nor any preference would be given to them and the Regional Transport Authority will be free to decide the matter on merits. The petitioners shall be entitled to their costs.


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