1. This petition under Articles 226 and 227 of the Constitution of India has been filed by the Mahakoshal Transport Co-operative Society Ltd., Raipur (through its President) against the Regional Transport Authority, Raipur (respondent No. 1), Raipur Transport Company (Private) Ltd., Raipur (respondent No. 2) and Anand Transport Company (Private) Ltd., Raipur (respondent No. 3) for a writ of certiorari quashing the order of the Regional Transport Authority, Raipur, dated 30-11-1961, refusing to grant the petitioner a temporary stage carriage permit for four months under Section 62 of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act).
2. The petitioner has entered into a contract with the Railway Authorities to carry passengers from Raipur to Kawardha and jagdalpur as a consequence of the Railway opening out-agencies in Kawardha and Jagdalpur. According to the petitioner respondents 2 and 3 had also, applied for the contract; but as the tender of the petitioner was lower, he has been given the contract. He applied to the Regional Transport Authority, Raipur, under Section 62 of the Act for a temporary permit for four months alleging that the scheme was only of an experimental nature and was, in the first instance, for six months. The application has been rejected. This, according to the petitioner, amounts to refusal to exercise jurisdiction and he, therefore, prays that the order be quashed.
3. The respondents denied that any out-agencies had been opened at Kawardha or Jagdalpur or that any experimental scheme for carrying passengers for six months was contemplated by the Railway as alleged. They pleaded that the need of the petitioner was not of a temporary nature within the meaning of Section 62 and the Regional Transport Authority acted within jurisdiction in rejecting his application. They also added that the remedy of the petitioner was to file an appeal against the order of refusal; and as he has not done so, no relief should be given to him in these proceedings.
4. Shri R. K. Tankha for the petitioner contended that the application fell within Clause (c) of Section 62 of the Act which enables temporary permits being granted 'to meet a particular temporary need'. According to him, as the scheme was for six months, it was 'temporary' and a permit should have been granted,
5. In our opinion, the contention of 'the petitioner must fail. The need which is contemplated by Section 62 of the Act is a need which arises temporarily more or less by a temporary increase in traffic. Clauses (a) and (b) of Section 62 refer to the need from 'fairs and religious gatherings' or 'for the purposes of a seasonal business'. Both these clauses indicate an increase in traffic, and Clause (c), which follows, should be interpreted in the light of the earlier clauses. At any rate, it appears to us that the need mentioned in Clause (c) must be external to the acts of the operator himself. In the instant case, the operator has taken a contract from the Railway and on the strength of it he wants to force the Regional Transport Authority to grant a temporary permit in respect of traffic which is permanent and which is being catered for by the existing transport services adequately.
6. In Shah Transport Co., v. State of Madhya Pradesh, ILR (1953) Nag 110 : (AIR 1952 Nag 353) it was observed that a temporary need to fall within Clause (c) of Section 62 must be a particular need. In that case, temporari permits granted generally in favour of operators were hem not to fall within Clause (c). In Meghraj v. Chairman, R.T.A., Rewa, Misc. Petn. No. 133 of 1959 D/- 22-7-1959 (Madn-Pra) it was held that a temporary permit granted in favour of one of the respondents, when several applications for such permit were pending, was a grave misuse of the powers of the Tribunal under Section 62(c), as the need was neither a 'temporary' nor a 'particular' need.
In Kishorilal v. Secy. R.T.A. Rewa, AIR 1962 Madh-Pra 7 reference was made to Meghraj's case, Misc. Petn. No. 133 of 1959 D/- 22-7-1959 (Madh Pra) (supra) and it was held that the need of the respondent to feed its out-agency contract was a permanent need and it could not be designated to be a temporary need for a permit 'for a shorter duration. It is true that in that case the out-agency scheme was a permanent one, whereas in the instant case the out-agency scheme is stated to be an experiment for six months. However, that does not make the need of the petitioner 'temporary' and 'particular'. The following observations in paragraph 17 are pertinent:
'It has also to be borne in mind that the out-agency contract on which so much reliance is being placed by the learned Advocate-General is a creation of respondent No. 2 itself, and it could not put that forward as art excuse for being treated favourably in the matter of grant of a temporary permit. Good sense required that it should have applied for a permanent stage carriage permit under Section 46 of the Motor Vehicles Act and then, to have entered into a contract with the railway authorities to run its out-agency service only if it had been successful in so obtaining the permit.'
In the instant case, the petitioner has entered into the contract with the Railway without having any permit in his favour to ply buses on the route and after having done so, he now wants to force the hands of the Regional Transport Authority in granting a permit. It would be an abuse of the provisions in Section 62 to grant a temporary permit in such a case. It was for the railway authorities to grant the contract to persons who could perform the same,
7. In Capital Bus Service v. State Transport Authority Delhi, AIR 1962 Punj 17 the grant of temporary permits to cope with the normal traffic which was already being met by regular operators was considered to be beyond the scope of Section 62 of the Motor Vehicles Act.
8. We do not agree that the Regional Transport Authority in the instant case acted illegally in refusing to grant a temporary permit, as the petitioner intended to provide for only normal traffic on the routes for which a sufficient number of buses were already plying. The personal need of the petitioner on the basis of the contract that he has taken from the Railway does not fall within the reasons for which a temporary permit can be granted under Section 62.
9. On behalf of the respondents it was also urged that the petitioner should have gone up in appeal against the order of refusal of the Regional Transport Authority and as he did not do so within the period of limitation provided for appeal, he was debarred from filing an application under Article 226 of the Constitution. We find that the order by the Regional Transport Authority was passed on 30-11-1961 and the present petition was filed on 22-1-1962. An appeal against the order lay under Section 64 Clause (a), of the Act and it should have been filed within thirty days from the date of the order under Rule 73 framed under that section. The petitioner has, therefore, failed to pursue the'appropriate remedy of appeal and has filed the petition in this Court after the lapse of the period for filing an appeal. Under these circumstances, relief should be refused to the petitioner. It is true that the existence of an alternative remedy does not affect the jurisdiction of the Court to issue a writ under Article 226 of the Constitution; but where a litigant, by his own fault, deprived himself of the remedy available to him, he cannot improve his position by filing a petition under Article of the Constitution. The legal right of the petitioner in the instant case was lost when he failed to file an appeal against the order refusing to grant a temporary permit and the order became final. It would not, therefore, be proper to grant, a relief to the petitioner by issuing a writ when he could not obtain that relief in the usual way on account of his own default.
10. In the result, the petition is dismissed with costs.Hearing fee is fixed at Rs. 50/- only. The balance of thesecurity deposit, after adjusting the costs, shall be refundedto the petitioner.