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Daluram Tarachand Vs. the State Transport Appellate Tribunal, Gwalior and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 186 of 1976
Judge
Reported inAIR1977MP87
ActsMotor Vehicles Act, 1939 - Sections 47, 47(1) and 47(2)
AppellantDaluram Tarachand
RespondentThe State Transport Appellate Tribunal, Gwalior and anr.
Appellant AdvocateK.P. Gupta, Adv.
Respondent AdvocateV.S. Dabir, Adv. for Opposite Party No. 2
DispositionPetition dismissed
Cases ReferredAbdul Mateen v. Ram Kailash Pandey
Excerpt:
- - and it is clearly held in this decision that the regional transport authority while considering applications for grant of permit cannot also modify his orders with regard to the number of permits to be granted......for stage carriage permits in that route should be entertained. the r. t. a. is not competent to grant stage carriage permits for more carriages than fixed under section 47 (3).'further, their lordships reaffirmed the view expressed in civil appeal no. 95 of 1965 (sc), java ram motor service v. s. rajarathinam. the analysis of the legal position in that case which found approval by their lordships referred to above is :'the scheme of section 47 is that when a person makes an application under sections 45 and 46 the authority first considers it under section 47 (1) in the light of the matters set out therein and also the representations if any, made by the persons mentioned therein. the authority then fixes under section 47 (2) having regard to the matters mentioned in section 47 (k),.....
Judgment:

Oza, J.

1. This is a petition filed by the petitioner under Articles 226 and 227 of the Constitution. By this petition the petitioner has challenged the order passed by the State Transport Appellate Tribunal Gwalior in Appeal No. 113 of 1974 decided on 31-12-1975.

2. According to the petitioner he was granted & permit for plying a passenger bug between Sendhwa and Warla via Hingwa in the year 1972. According to him this route in accordance with the map which he has filed along with the petition. He alleges that thereafter he approached the Regional Transport Authority by saying that the route between Hingwa and Warla was not motorable. He therefore applied for a diversion of this route from Sendhwa to Warla via Balwadi. This application of his for diversion was registered in the Regional Transport Authority Indore as Case No. 88 of 1974. According to the petitioner the Regional Transport Authority, after following the procedure laid down in Section 57 (3) of the Motor Vehicles Act passed an order on 27-9-1974 and allowed the diversion as prayed for by the petitioner. Against this order of the Regional Transport Authority the respondent No. 2 preferred a revision before the State Transport Appellate Tribunal Gwalior, who, after hearing the parties allowed the petition and set aside the order passed by the Regional Transport Authority. It is against this the present petition has been filed.

3. It was contended on behalf of the petitioner that when the permit was granted to the petitioner he immediately thereafter drew the attention of the Regional Transport Authority that part of the route is not motorable and repeatedly invited his attention of this aspect of the matter. Ultimately the Regional Transport Authority, after following the procedure prescribed under Section 57 (3) of the Motor Vehicles Act permitted the alteration of the route and the State Transport Appellate Tribunal set aside that order on an assumption that the diversion of the route amounted to grant of a new permit. It was also contended that the appellate Tribunal set aside the order of the Regional Transport Authority holding that part of the route is covered in Scheme No 64 for nationalization. Learned counsel for the petitioner contended that in fact this part of the route was not covered under Scheme No. 64 and therefore there is an error apparent on the record.

4. Learned counsel appearing for respondent No. 2, however, contended that when the route was advertised and if the petitioner felt that part of the route was not motorable it was open to him to raise en objection and to get the route modified. But once the route is finally settled and applications are invited for grant of permit and the petitioner applied for permit on that particular route and got it, it is not open to him to make an application for diversion. The only course open before the Regional Transport Authority was to readvertise the modified route and invite applications for grant of permit on the modified route as according to learned counsel this amounted to grant of a new permit on a new route and this the Regional Transport Authority could not do under the garb of modification of the route. In support of the contention learned counsel placed reliance on the decision of the Supreme Court reported in R. Obliswami Naidu v. Addl. State Transport Appellate Tribunal Madras, AIR 1969 SC 1130.

5. It was also contended by learned counsel for the respondent that part of this route is covered under the scheme of nationalisation and he drew our attention to the scheme and the map along with the scheme. Learned counsel for the petitioner, however, contended that he has filed along with the petition Scheme No. 64 which does not cover this route and if the respondent wanted to rely on some other scheme he could have filed that scheme along with its map in the return itself; that not having been done, it was contended that respondent No. 1 could not now rely on a new document which was not referred to in the return.

6. In AIR 1969 SC 1130 (supra) their Lordships observed :

'On an examination of the relevant provisions of the Act and the purpose behind Sections 47 and 57 we are convinced that before granting a stage carriage permit two independent steps have to be taken. Firstly, there should be a determination by the R. T. A. under Section 47 (3) of the number of stage carriages for which stage carriage permits may be granted in that route. Thereafter applications for stage carriage permits in that route should be entertained. The R. T. A. is not competent to grant stage carriage permits for more carriages than fixed under Section 47 (3).'

Further, their Lordships reaffirmed the view expressed in Civil Appeal No. 95 of 1965 (SC), Java Ram Motor Service v. S. Rajarathinam. The analysis of the legal position in that case which found approval by their Lordships referred to above is :

'The scheme of Section 47 is that when a person makes an application under Sections 45 and 46 the Authority first considers it under Section 47 (1) in the light of the matters set out therein and also the representations if any, made by the persons mentioned therein. The Authority then fixes under Section 47 (2) having regard to the matters mentioned in Section 47 (k), the number of stage carriages for which permits may be granted in the region or on any specified route within such region. Having fixed the limit the Authority publishes under Section 57 (3), the application with a notice of the date before which representations in connection therewith may be submitted and the date on which such application and representations would be considered. The proviso to Section 57 (3) lays down that if the grant of a permit has the effect of increasing the number of vehicles operating in that region or in any specified area thereof or on the route within such region beyond the limit fixed under Section 47 (3) the Authority may dismiss the application summarily. If it does not exceed such limit and the authority decides to grant a permit it has to consider the application and the representations submitted to it in conformity with the- procedure laid down in Section 57. Therefore Section 47 envisages two stages of the inquiry; (i) the fixing of the number of permits under Section 47 (3) and (ii) the consideration thereafter of the application for grant of a permit and the representations if any by the persons mentioned in Section 47 (I). It would therefore seem that once the Authority has fixed the number of vehicles to be operated in the region or the area or the particular route and the number of permits to be granted therefor, the stage of Inquiry under Section 47 (3) is over. The next thing that the Authority has to consider is whether grant of a permit would be within such limit or not. If it does not exceed the limit the Authority has to consider the application and the representation, if any, in connection therewith and to grant or refuse to grant the permit under Section 48 (1). Therefore, once the limit is fixed, the grant of an application does not have the effect of exceeding that limit, the only question before the Authority would be whether the applicant is a person fit to be granted the permit or not in the light of the matters set out in Sub-section (1) of Section 47. The question of the number of permits to be granted, having been already canvassed and decided, cannot become the subject at that stage of any further controversy. This is clear from the fact that Section 48 (1) which empowers the Authority to grant or refuse to grant the permit starts with the words 'subject to the provisions of Section 47'. It is therefore clear that the Authority has first to fix the limit and after having done so, consider the application or representations in connection therewith in accordance with the procedure laid down in Section 57. As held in Abdul Mateen v. Ram Kailash Pandey, 1963-3 SCR 523 at page 529 = (AIR 1963 SC 64 at pages 66, 67) the Authority may modify the limit fixed by it under Section 47 (3) but once such a limit is fixed, it cannot ignore it while considering the applications before it under Section 48. Section 47 (3), as observed there, 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 Transport Authority has to do is to choose between various applicants. That, in our opinion, is not the stage when 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 carriage etc. may have been 'passed'. That being so, if an application is refused such refusal is under Section 48 (1) and the appellant who is denied the permit has a right of appeal under Section 64 (1) (a).'

7. Apparently, therefore, what their Lordships have laid down is that the proceedings under Section 47 for fixing the route and for fixing the number of stage carriage permits to be granted is a different stage than inviting applications and decision on those applications. According to the view expressed by their Lordships it is only after the proceedings under Section 47 (1) and (2) are completed that the question of inviting applications arises. And it is clearly held in this decision that the Regional Transport Authority while considering applications for grant of permit cannot also modify his orders with regard to the number of permits to be granted. On this basis it was contended that in view of the law laid down by their Lordships of the Supreme Court the question of fixing the route has to be independently dealt with before applications for that route are invited

8. It is thus clear that the Regional Transport Authority was not right in modifying the route in the permit itself granted to the petitioner. If at all the contention of the petitioner that part of the route was not motorable was true, the only course open to that Authority was to proceed under Section 47 to determine the new route as suggested by the petitioner and invite applications after the route is fixed and is advertised as apparently the order of the Authority amounts to grant of a new permit.

9. In view of the discussion above it is not necessary for us to go into the question as to whether part of this route is covered under the nationalization scheme or not.

10. In the result, therefore, the view taken by the Appellate Tribunal appears to be correct and it could not be contended that the Appellate Tribunal has in any manner acted beyond jurisdiction or there is any error apparent on the record. Consequently, there is no substance in this petition. It is dismissed. Respondent No. 2 shall be entitled to costs of this petition. Counsel fee Rs. 200/- (two hundred) if certified. Balance, if any, of the security amount be refunded to the petitioner after verification.


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