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Rambharose Anant Prasad Vs. the State Transport Appellate Authority, M.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Pents. Nos. 547 of 1973 and 239 of 1971
Judge
Reported inAIR1976MP71
ActsMotor Vehicles Act, 1939 - Sections 47(3) and 57
AppellantRambharose Anant Prasad
RespondentThe State Transport Appellate Authority, M.P. and ors.
Appellant AdvocateS.Q. Hasan, Adv.
Respondent AdvocateP.C. Pathak and A.S. Jha, Advs. for Respondent No. 3
Cases ReferredMohammad Ibrahim v. S.T.A. Tribunal
Excerpt:
- - that order was unsuccessfully challenged in the high court. , jaibalpur (1962 mplj (n) 35) (supra) and other cases mentioned earlier is no longer good law. but would like to add a few words in this connection......a full bench to consider the correctness of a division bench decision of this court in rambabu v. regional transport authority, indore, m. p no. 462 of 1970, d/- 5-7-1971 (madh. pra.). ,3. these references arise on the following facts :the petitioner rambharose anant-prasad is a motor operator. the matter relates to grant of a stage carriage permit on rewa-bichi route via baghaun, on which the services of respondent no. 3, ramshushil pandey and one, ramlagan-singh were being operated prior to the making of the application by the petitioner. the route is 103 miles, out of which 46 miles is pacca and falls exclusively within the jurisdiction of the regional transport authority, rewa. the question arose whether the procedure prescribed by section 47 (3) of the motor vehicles act, 1939,.....
Judgment:

P.K. Tare, C.J. and Sharma, J.

1. This opinion shall also govern the disposal of Miscellaneous Petition No. 239 of1971 (Sardar Dharamsingh of Datia v. Regional Transport Authority, Gwalior and others).

2. These cases have been referred by a Division Bench to a Full Bench to consider the correctness of a Division Bench decision of this Court in Rambabu v. Regional Transport Authority, Indore, M. P No. 462 of 1970, D/- 5-7-1971 (Madh. Pra.). ,

3. These references arise on the following facts :

The petitioner Rambharose Anant-prasad is a motor operator. The matter relates to grant of a stage carriage permit on Rewa-Bichi route via Baghaun, on which the services of respondent No. 3, Ramshushil Pandey and one, Ramlagan-singh were being operated prior to the making of the application by the petitioner. The route is 103 miles, out of which 46 miles is pacca and falls exclusively within the jurisdiction of the Regional Transport Authority, Rewa. The question arose whether the procedure prescribed by Section 47 (3) of the Motor Vehicles Act, 1939, applies in respect of a regional route irrespective of the fact whether it is a new route or an old route. According to the petitioner, it applies both to a new route and an existing route and not to an old route on the strength of the pronouncement of their Lordships of the Supreme Court in R. Obliswami Naidu v. Addl. State Transport Appellate Tribunal, Madras, AIR 1969 SC 1130. It was also the petitioner's contention that the said Supreme Court case was followed by a Full Bench of this Court in Anand Ram v. Regional Transport Authority, Rewa, 1971 MPLJ 493 = (AIR 1971 Madh Pra 170) (FB), which has further been explained by another Division Bench of this Court in Rambabu v. Regional Transport Authority, Indore, M. P. No. 462 of 1970, D/-5-7-1971 (Madh. Pra.) (supra). On the other hand, the State Transport Appellate Tribunal held that the procedure envisaged by Section 47 (3) of the Motor Vehicles Act, 1939, applies equally to a new route as to an old route. This view was taken on the strength of the observations of a Division Bench of this Court in Misc. Petn. No. 325 of 1971, decided on 11-12-1971 (Madh. Pra.) At present stage while giving our opinion, we are not concerned with the other details of the case.

4. In the connected case, namely, Misc. Petition No. 239 of 1971, the facts are that the petitioner holds six stage carriage permits, which include regional andinter-statal routes. He holds permits on Datia-Seondha, Seondha-Batia, Daboh-Datia, Alamput-Datia and Seondha-Unnao via Datia routes; One Gulabchand and Company held a stage carriage permit for one return trip daily on Datia-Lahar route. Before the expiry of its validity, Gulabchand and Co. applied for its renewal. This renewal application was published in M. P. Rajpatra, dated 29-5-1970, wherein objections were invited. The petitioner applied for a fresh grant in place of renewal. The petitioner thought that since he was not affected by the renewal or grant of a fresh permit in place of renewal, he did not. file any objections against the aforesaid application. Respondents 3 to 9 applied suo motu to the Regional Transport Authority, Gwalior, for grant of a fresh permit on another route, namely, Lahar-Datia. All these seven applications submitted by respondents 3 to 9 were published inviting objections.

The petitioner filed objections against the applications of respondents 3 to 9 within time. The Regional Transport Authority published a corrigendum in M. P. Rajpatra, dated 25-9-1970 informing that the substance of the application filed by Nathuram Sharma (respondent 2) was incorrect and in fact, his application was for Lahar-Datia route desiring timings of Gulabchand and Co. The petitioner's objection against the application of respondents 3 to 9 was that the Regional Transport Authority had neither declared the scope, nor had invited applications. As such, the question arose whether the Regional Transport Authority was bound to follow the procedure prescribed by Section 47 (3) of the Motor Vehicles Act, 1939. The Regional Transport Authority by the order impugned in this writ petition proceeded with the applications of respondents 2 to 9 and granted a permit to respondent No. 2, Nathuram Sharma. The applications of other respondents were rejected. We are not concerned with the other facts, which will have to be considered by the Division Bench, As such, the question arising in both these cases before this Full Bench is whether the procedure prescribed by Section 47 (3) of the Motor Vehicles Act, 1939, applies to a new route only, or it also applies to an old route.

5. In Rambabu v. The Regional Transport Authority, Indore, M P No. 462 of 1970, D/- 5-7-1971 (Madh. Pra.) (supra), the Division Bench relied on the Full Bench case of Anand Ram v. Regio-nal Transport Authority, Rewa (AIR 1971 Madh. Pra. 170) (FB) (supra), We may usefully reproduce the observations of the Full Bench in the said case as follows :

'In R. O. Naidu v. Additional State Transport Appellate Tribunal, AIR 1969 SC 1130, an application for a stage carriage permit had been made for a new route. It was accepted and a permit was issued to the applicant without first passing an order under Section 47 (3) of the Act or inviting applications for the route. The State Transport Appellate Authority set aside the grant on the ground that it was made without first passing an order under Section 47 (3) of the Act or inviting applications for the route. That order was unsuccessfully challenged in the High Court. In affirming the view taken by the Appellate Authority and the High Court, the Supreme Court stated :

'Sub-section (3) of Section 47 of the Act requires the Regional Transport Authority to limit the number of stage carriage permits that may be granted in a route having regard to the matters mentioned in Sub-section (1) of that section. The question for determination is whether the determination as to the number of stage carriages required on a route should be done at a stage anterior to that of en-tertaining applications for stage carriage permits or that it could be done at the time it considers applications made by operators for stage carriage permits in that route. The R.T.A. has proceeded on the basis that that question can be decided while considering the applications made to it for permits by operators whereas the appellate Tribunal and the High Court have taken a contrary view.

Sub-section (3) of Section 47 of the Act if read by itself does not throw any light on the controversy before us but if Sections 47 and 57 of the Act are read together, it appears to us to be clear that the view taken by the Appellate Tribunal and the High Court is the correct view. If contrary view is taken, it will throw open the door for manipulations and nepotism. There may be possibility of the personality of the applicant influencing the decision of the R.T.A. on the question of need for a stage carriage permit in the route and thereby public interest which should be main consideration while taking a decision under Section 47 (3) may suffer. If we accept the view taken by the R.T.A. as correct, an operator, who happens to apply for the route first will be in a com-manding position. The R.T.A. will have no opportunity to choose between competing operators and hence public interest might suffer'.

The view taken in this case was referred to with approval in Mohd. Ibra-him V. S. T. A. Tribunal, Madras, AIR 1970 SC 1542 and J. N. Wahal v. Sheikh Mah-fooz, AIR 1970 SC 1704. It is true that in Mohd, Ibrahirn's case (supra), no order had been passed under Section 47 (3) of the Act before applications were invited and that order was actually passed sometime before the hearing of the applications for the grant of permits and the representations made in connection therewith, but the parties had not challenged the orders passed under Section 57 of the Act on the ground that there was no valid order under Section 47 (3) of the Act. Here also, that is not a ground of challenge in Miscellaneous Petitions Nos. 229 and 250 of 1969. Therefore, the law laid down by the Supreme Court in R. O. Naidu's case, AIR 1969 SC 1130 (supra) governs two of these petitions and no exception can be taken to the procedure of inviting fresh applications for the new routes. We may also state that the contrary view taken earlier in Bhojraj Chauksey v. R. T. A., Jaibalpur (1962 MPLJ (N) 35) (supra) and other cases mentioned earlier is no longer good law.'

6. As laid down by the Full Bench, where an application for a stage carriage permit is made for a new route, it cannot be decided before first passing an order under Section 47 (3) of the Motor Vehicles Act, 1939, inviting applications for the route in view of the provisions of Section 57 of the Act. According to the Full Bench, this will apply not only where the application is for a new route, but also whers the number of permits to be granted for a route in question had been fixed earlier. The Full Bench relied on the pronouncement of their Lordships of the Supreme Court in R. Obliswami Naidu v. Addl. State Transport Appellate Tribunal, Madras AIR 1969 SC 1130 (supra) and explained the observations of their Lordships of the Supreme Court in Jeevan Nath Wahal v. Sheikh Mahfooz, AIR 1970 SC 1704. Certain earlier Division Bench decisions of this Court in Rhojraj Chauksey v. R. T. A., Jabalpur, M. P. No. 263 of 1961, D/-26-10-1961 - 1962 MPLJ (N) No. 35, New Jabalpur Transport (P.) Ltd. v. R.T.A., M. P. No 403 of 1962, D/- 28-2-1963 = 1963 MPLJ (N) No. 147, S. K. Rasool, Motor Transport Co. (P.) Ltd. v. S. T. A.,M. P., M. P. No. 184 of 1963, D/- 31-8-1963 = 1964 MPLJ (N) No. 21 and Hemandas and Bros, v R.T.A., Jabalpur, M. P. No. 250 of 1962, D/- 11-12-1962 = 1964 MPLJ (N) 23 were specifically overruled. However, the Division Bench in Rambabu v. Regional Transport Authority, Indore, M. P. No. 462 of 1970, D/- 5-7-1971 (Madh. Pra.) (supra) thought that this principle will be applicable to a new route only. This was what the Division Bench observed in paragraph 5 of its order as follows :

'Learned counsel for the petitioner then contended that in view of the Full Bench decision in Anand Ram v. R.T.A., Rewa, 1971 MPLJ 493 = (AIR 1971 Madh Pra 170) (FB) the Regional Transport Authority was wrong in granting a .permit to respondent No. 3 and in the same order also determining that there was scope for this one permit on the route. His contention is that the proper procedure to be adopted was first to determine the scope and then to advertise and invite applications for the route Only then a permit could be granted. The decision in the Full Bench case cited above applies to a case only where a new route is to be opened and permits have to be granted for the first time. In this petition there is no allegation that the route in question was a new route or that permits were to be granted for the first tune. The principle of the Full Bench case cannot, therefore, be applied to this petition.'

7. The learned counsel for tine petitioner did not challenge the correctness of the other proposition laid down by the Full Bench in Anand Ram v. Regional Transport Authority, Rewa (AIR 1971 Madh Pra 170) (FB) (supra) to the effect that the Regional Transport Authority cannot simultaneously determine the scope and make a grant. That proposition was rightly followed by the Division Bench in Rambabu v. Regional Transport Authority, Indore, M. P. No. 462 of 1970, D/- 5-7-1971 (Madh. Pra.) (supra). But the learned counsel's contention is that the observations of the Division Bench that that principle applies only to a new route, is not a correct proposition of law. Hence these references to a Full Bench.

8. It is true that the cese of R. Obliswami Naidu v. Addl. State Transport Appellate Tribunal, Madras AIR 1969 SC 1130 (supra) was a case of a new route. Probably on account of that fact, it has been misunderstood in some cases that the procedure prescribed by Section 47 (3) ofthe Act applies to a new route only and not to an existing route. However, in Mohd. Ibrahim v. The State Transport Appellate Tribunal, Madras, AIR 1970 SC 1542, it is clear that their Lordships of the Supreme Court considered cases relating not only to new routes, but also to existing routes. In this connection the observations of their Lordships of the Supreme Court in paragraph 36 might be noted, which specifically related to old routes.

9. There are decisions of other High Courts, which it is not necessary to take note of in which contrary view has been taken on this question. But, we may advert to the latest pronouncement of their Lordships of the Supreme Court in Gajendra Transport (P.) Ltd. v. The Anamallias Bus Transport (P.) Ltd., AIR 1975 SC 386, wherein their Lordships made the following observations :

'The question arising in this appeal lies in A narrow compass and stands concluded by a recent decision of this Court in Mohd Ibrahim v. State Transport Appellate Tribunal, Madras, (1971) 1 SCR 474 = (AIR 1970 SC 1542). This decision was given, in a batch of appeals against the judgments of the Madras High Court in similar cases where the same Division Bench, which decided the appeal in the present case, took the view that since there was no valid order made by the Regional Transport Authority under Section 47 (3) prior to the grant of stage carriage permits, the order of the Regional Transport Authority granting such stage carriage permits to one or the other applicants were invalid. This Court, speaking through Ray, J. (as he then was) after referring to the earlier decisions of tihe Court, stated the law on the subject in the following terms :

'This Court in Abdul Ma teen's case, (1963) 3 SCR 523 = (AIR 1963 SC 64) said that the general order by the Regional Transport Authority under Section 47 (3) of the Act in regard to the limit of number of stage carriage permits can be modified only by the Regional Transport Authority when exercising the jurisdiction under Section 47 (3) of the Act. The Regional Transport Authority while acting under Section 48 of the Act in regard to the grant of permits has no jurisdiction and authority to modify any order passed by the Regional Transport Authority under Section 47 (3) of the Act In other words, the limit fixed toy the Regional Transport Authority under Section 47 (3) of the Act cannot be altered by the Re-gional Transport Authority at the time of grant of permits. It is, therefore, established that the determination of limit of number of permits is to be made before the grant of permits. That is why Section 48 of the Act is prefaced with the words 'subject to the provisions of Section 47 of the Act' meaning thereby that the jurisdiction of the Regional Transport Authority to grant permits is subject to the determination of the limit of number of permits under Section 47 (3) of the Act. This Court stated the legal position in M/s. Jaya Ram Motor Service's case, C. A. No. 95 of 1965, decided on 27th October 1967 = 1967-2 SCWR 857 and said 'it is therefore clear that the authority has first to fix the limit and after having done so consider the application or the representations in connection therewith in accordance with the procedure laid down in Section 57 of the Act.'

Again in the case of R. Obliswami Naidu, AIR 1969 SC 1130 (supra) this Court considered the submission in that case as to whether the Regional Transport Authority could decide the number of permits while considering applications for permits. This Court did not accept the submission because such a view would allow an operator who happened to apply first to be in a commanding position with the result that the Regional Transport Authority would have no opportunity to choose between competing operators and public interest might suffer. In the same case it is again said that the determination of the number of stage carriages for which stage carriage permits may be granted for the route is to be done first and thereafter applications for permits are to be entertained'.

The learned Judge then proceeded to add that the earlier decisions of the Court established two propositions; namely :

'First, that the Regional Transport Authority should fix the limit of number of stage carriage permits under Section 47 (3) of the Act and after having done so the Regional Transport Authority will consider the application for grant and representations in connection therewith in accordance with the procedure laid down in Section 57 of the Act. Secondly, when a new route is opened for the first time and an advertisement is issued calling for applications for such a new route specifying the number of vacancies for it, it would be reasonable to hold that the number of vehicles is specified as the limit decided upon by the Regional TransportAuthority,' and towards the end, the learned Judge pointed out that where the Regional Transport Authority issued a notification under Section 57 (2) inviting applications for a permit on a new route or a permit for an additional bus on an existing route, it can reasonably be held that the Regional Transport Authority has arrived at a decision as to the limit of the number of permits as required under Section 47 (3), because it is not the form but the substance of the order that has to be considered. It is in the light of this statement of the law that we must consider whether the Regional Transport Authority acted without jurisdiction in granting stage carriage permits to the appellant as found by the Tribunal and affirmed by the Division Bench of the Madras High Court.'

10. It is, therefore, clear that the procedure prescribed by Section 47 (3) of the Motor Vehicles Act, 1939, applies not only to a new route, but also to an exist-ing route. Therefore, we are unable to agree with the contrary view expressed by a Division Bench of this Court in Ram-babu v. Regional Transport Authority, Indore, M. P. No. 462 of 1970, D/- 5-7-1971 (Madh. Pra.) (supra), although we are in agreement with the view of the said Division Bench in holding on the authority of Anand Ram v. Regional Transport Authority, Rewa (AIR 1971 Madh Pra 170) (FB) (supra) that determination of scope and grant of permit cannot simultaneously be determined. The Regional Transport Authority must, therefore, first determine the scope and then consider the question of grant of permit.

11. Let the case be remitted to the Division Bench for deciding the cases on merits in accordance with the opinion expressed by us above.

RAINA, J.

12. I agree with MyLord the Chief Justice that the procedure prescribed by Section 47 (3) of the Motor Vehicles Act applies not only to a new route but also to an existing route; but would like to add a few words in this connection.

13. In the context of an existing route, Section 47 (3) is attracted only where the Regional Transport Authority considers it necessary to alter the limi-as already fixed by it thereunder in order to provide an additional bus or buses on the route on account of increase in the volume of traffic or for some other reason. The limit fixed by the Regional Transport Authority under Section 47 (3) cannot bealtered by such authority at the time of grant of permits and such alteration must be made before the grant of permits.

14. It must, however, be borne in mind in this connection that, as pointed out by their Lordships of the Supreme Court in Mohammad Ibrahim v. S.T.A. Tribunal, Madras, AIR 1970 SC 1542, an order under Section 47 (3) of the Motor Vehicles Act is not a matter of mere form but of substance; and if from the record of the Regional Transport Authority it can be spelt out that that Authority fixed the limit of number of stage carriage permits before consideration of the applications for grant of permits, there is compliance with the provisions of Section 47 (3) of the Act.


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