1. This petition under Articles 226 and 227 of the Constitution has been filed against the order of the State Transport Authority dated 1-4-1958 confirming the order of the Regional Transport Authority dated 18-6-1957.
2. The petitioner and the respondent No. 3 (Public Transport Co.,) are transport operators on the Sconi-Balaghat-Gondia road. On 24-12-1956 the petitioner applied for permission to run an express service on that route. A similar application was filed by the respondent No. 3 on 11-2-1957. The respondent No. 2 acting as the Regional Transport Authority granted a permit to the respondent No. 3 and the respondent No. 1 as the State Transport Authority rejected the petitioner's appeal.
3. The only ground which has been raised against the grant of the permit is given 'in para 18 of the petition wherein the petitioner says that the respondent No. 3 obtained the permit by fraud. The alleged fraud is that by mentioned in his application and represented before the Regional Transport Authority that he had two vehicles of 1957-model which was false. There is some difference between the certified copies of the application filed by the parties. The petitioner's copy has a foot-note below the application saying that two new buses had been purchased. The respondent No. 3's copy shows that two buses were ready and the registration numbers would be given alter obtaining them. We are surprised at this difference in the certified copies which indicates an undesirable state of things in the office of the Regional Transport Authority,However, the difference is not material, as on either version it appears that the respondent No. 3had represented that they had two spare vehicles which were ready for being put on the road. Theappellate Authority has declined to enquire into this matter in view of the provisions of Section 60 of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act).That section provides that the Regional Transport Authority may cancel a permit which was obtained by fraud or misrepresentation. We agree with this view. The proper remedy of the petitioner is to apply for cancellation on that ground to the Regional Transport Authority itself. The question would involve enquiry into facts and the authority to whom the representation was wrongly made can best enquire into such matters. In view of the express provisions, we cannot hold that the State Transport Authority has refused to exercise jurisdiction vested in it.
4. Coming next to the contention that the grant of the permit to the respondent No. 3 is on grounds extraneous to Section 47 of the Act, Shri Phadke objects that this ground is not raised in the petition in para 18 where only one ground has been given. The objection is technically correct. However, we find that in the earlier paragraphs the petitioner has stated his case raising this aspect. At the most, the omission in para 18 is a drafting irregularity. We shall, therefore, consider the case of the petitioner on this ground also.
5. It is settled law that the grounds given in Section 47 of the Act are not exhaustive. Other grounds, which arc germane to the grant of permit, can be considered; but these grounds should not be wholly unrelated to that object. (See Dholpur Co-operative Transport and Multi Purpose Union v. Appellate Authority, AIR 1955 Raj 19, Satya Narayan Transport Co. v. State Transport Authority, (S) AIR 1957 Cal 638, and C. S. S. Motor Service v. Madras State, AIR 1953 Mad 279.) The petitioner states that there are three grounds stated by him in para 8 of the petition on which the Regional Transport Authority has granted the permit to the respondent No. 3. The matter is dealt with by the Regional Transport Authority in para 6 of the order (An-nexure IV). The grounds for granting permit to the respondent No. 3 are stated to be that: (i) the grant of permit to the petitioner would create a virtual monopoly; (ii) it might also render the other operator (respondent No. 3) unrermunerative; and (iii) the respondent No. 3 proposes to use recently purchased vehicles.
6. So far as the third ground is concerned, we have already said that the remedy lies under Section 60 of the Act and the petitioner can apply for cancellation of the respondent No. 3's permit on that ground. As regards the first ground, the Regional Transport Authority does not say that a monopoly in the strict sense would be created as is clear from the word 'virtual' used by them. They state thatthe petitioner has three permits, while the respondent No. 3 has only one on the route.
Thus, if one more permit is given to the petitioner, he will have four permits as against the respondent No. 3's single permit. This will create a 'virtual monopoly' which only means that the petitioner will be operating an unduly large number of services on the route. It is a question of opinion whether allowing one operator to have almost all the services on a route is in public interest, and the view taken by the Regional Transport Authority cannot be said to be unreasonable. At any rate, it is for that authority to appreciate how public interest would be best served, and we do not find anything wrong in its considering that the permits should be evenly distributed.
7. The second reason about the service of the respondent No. 3 becoming unremunerative is connected with the first reason. The operator who has an unduly large number of permits naturally obtains a better position for securing traffic and the other operators is bound to be affected. Shri A. P. Sen, for the petitioner, relies on AIR 1953 Mad 279 (supra) to support his contention that the question of loss to the other operators is an extraneous matter.
In that case, the ground for granting a new permit to an operator was stated to be that he was suffering a loss on other services. In other words, it was only to allow him an additional source of income to cover up his loss. It was held that such a consideration is opposed to Article 19(6) of the Constitution. The position in the instant case is different. Here, the grant of a permit to the petitioner would itself have the consequence of rendering an existing service unremunerative. The matter is thus germane to the question to be decided. We do not think that the Regional Transport Authority erred in considering this aspect.
8. The last contention of Shri Sen is that the petitioner should have been preferred as he represents a 'viable' unit having more than 20 buses, He refers to Rule 49-A of the Motor Vehicles Rules which says that, other things being equal, preference should be given to a viable unit. This ground cannot be considered, as it was not raised in appeal before the State Transport Authority. We may refer to the decision in (S) AIR 1957 Cal 638 (supra) where it has been clearly laid down that the petitioner is precluded from raising points in a writ petition which were not raised before the State Transport Authority in appeal.
Incidental we may mention that in that case it was held that the permit was granted on some considerations which were not germane and relevant under Section 47 of the Act and yet no interference was made on the sole consideration that this ground was not taken before the State Transport Authority. In this view, the contention that the petitioner represented a viable unit and had a preferential claim cannot be considered. Further, possession of 20 vehicles is necessary for a viable unit; but in his petition, the petitioner had stated that he had only 14 (Vide para 7 of Annexure I). On the facts stated in the petition, the question of the petitioner being a viable unit did not arise at all.
9. In view of what we have stated above, the petition fails. It is hereby dismissed with costs. Hearing fee Rs. 50/- only.