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Harichand Sharma Vs. Regional Transport Authority and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtOrissa High Court
Decided On
Case NumberOriginal Jur. Case No. 300 of 1972
Judge
Reported inAIR1973Ori107; 38(1972)CLT1022
ActsMotor Vehicles Act, 1939 - Sections 64(1)
AppellantHarichand Sharma
RespondentRegional Transport Authority and ors.
Appellant AdvocateRanjit Mohanty and ;B. Nayak, Advs.
Respondent AdvocateStanding Counsel (Transport) and ;S.C. Parija, Adv.
DispositionApplication allowed
Cases ReferredRam Gopal v. Anant Prasad.
Excerpt:
.....unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive..........authority came to hold that the regional transport authority of sambalpur had no jurisdiction to grant renewal for the route extending to both the districts and the renewal was valid as far as that portion of the route which is located within the sambalpur district was concerned. the application for renewal made by the opposite party no. 2 was found to have been made on 25-9-1971, and not on 25-8-1971. as alleged by the opposite party no. 2. as the permit, renewal whereof was asked for, was due to expire on 26-12-1971. the application was found to be barred by limitation. in view of the requirement of section 58 (2) of the act, the renewal application has to be made not less than 120 davs before the date of its expiry in case of a stage carriage permit. under sub-section (3) of section.....
Judgment:

R.N. Misra, J.

1. This is an application under Articles 226 and 227 of the Constitution of India asking for quashing of the appellate order passed under Section 64 of the Motor Vehicles Act. 1939 (hereinafter referred to as the Act) by the opposite party No. 3.

2. The petitioner is the grantee of a permanent stage carriage permit from the State Transport Authority on the Bargarh to Rampur via Barpali route. The two destinations are admittedly situate in two different places --Bargarh being in the district of Sambalpur and Rampur within the district of Bolangir. The opposite party No. 2 obtained a stage carriage permit on the route Baragarh to Rampur via Sikirda from the Regional Transport Authority of Sambalpur. This permit was extended upto Binka and was valid upto 26-12-1971. The opposite party No. 2 made an applicantion for renewal of the permit before the Regional Transport Authority, Sambalpur (opposite party No. 1) as provided for under Section 58 of the Act. This application was made on 25-9-1971, The petitioner made a representation under Section 57 of the Act against the grant of the renewal. He contended that the application for renewal was barred by limitation, the Regional Transport Authority had no jurisdiction to grant the permit and the application was not in accordance with law. On 13-12-1971, renewal was granted by the Regional Transport Authority for a term of five years subject to the concurrence of the Regional Transport Authority. Bolangir. The petitioner carried an appeal before the opposite party No. 3 in M. V. Appeal No. 1 of 1972. The appellate authority by its decision dated 10th of April, 1972, dismissed the appeal. This application in certiorari is directed against the said appellate order.

3. In paragraph 33 of the impugned appellate judgment, 8 points were formulated for determination. In view of the contentions raised before us, it would be necessary to refer to points 1. 2. 3 and 7 thereof, which for convenience are extracted below:

'Point-- 1. Whether the R. T. A. Sambalpur had jurisdiction to grant the impugned renewal in favour of the respondent No. 2 ?

2. Whether the application of respondent No. 2 for renewal was barred by limitation ?

3. Was the application of respondent No. 2 defective ?

7. Whether the appeal is maintainable ?'

The appellate authority came to hold that the Regional Transport Authority of Sambalpur had no jurisdiction to grant renewal for the route extending to both the districts and the renewal was valid as far as that portion of the route which is located within the Sambalpur district was concerned. The application for renewal made by the opposite party No. 2 was found to have been made on 25-9-1971, and not on 25-8-1971. as alleged by the opposite party No. 2. As the permit, renewal whereof was asked for, was due to expire on 26-12-1971. the application was found to be barred by limitation. In view of the requirement of Section 58 (2) of the Act, the renewal application has to be made not less than 120 davs before the date of its expiry in case of a stage carriage permit. Under Sub-Section (3) of Section 58 of the Act. delay to the tune of 15 days was available to be excuzed on good cause being shown. The period of delay was more than 15 days and no application was made in this case to invoke jurisdiction under Section 58 (3) of the Act. The application of the opposite party No. 2 was also found to foe defective but the defect was such that the permit which was ultimately granted could not be rendered invalid. The appellate authority, however, came to find that the appeal at the instance of the petitioner was not maintainable though on the other findings in favour of the petitioner, the grant of the permit was to be set aside. As the appellate authority found that the appeal was incompetent, no relief was granted.

4. Before us in the writ petition, therefore, the only question which re-quires adjudication is as to whether the appeal at the instance of the petitioner lay before the appellate authority in this case.

5. There is no dispute that the light of appeal has to be statutorily conferred and in the absence of such statutory provision, no right of appeal can foe inferred or assumed. Section 64 of the Act makes provision for appeals. In clauses (a) to (i), Sub-Section (1) of that section, the right of appeal is provided in certain contingencies. It is not necessary to refer to the several clauses of Sub-Section (1) of that section, because, Mr. Mohanty for the petitioner concedes that none of the clauses excepting Clause (f) is relevant and if we hold that under that provision the petitioner could not sustain an appeal before the opposite party No. 3. the petitioner has no case. Learned counsel for the opposite parties take the stand that Clause (f) has no application. We have, therefore, to analyse the provisions of Clause (f) to find out whether the view of the appellate authority that at the instance of the petitioner in the given case no appeal lay is correct.

6. The provision of Clause (f) is as follows:

'64. (1) Any person--

* * * * * *(f) being a local authority or police authority or an association which, or a person providing transport facilities who, having opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto, or* * * * * *

Mr. Mohanty contends that the petitioner is a person providing transport facilities and has opposed the grant of the renewal and is aggrieved by the grant thereof. Therefore, at this instance an appeal under that clause was maintainable. There is no dispute that the petitioner is a person providing transport facilities nor is there any dispute that the petitioner did oppose the grant of the renewal. The only question upon which there is no agreement is whether grant of a renewal is covered under Clause (f).

7. The appellate Tribunal has taken the view that under this clause, the case of renewal is not at all covered. It is only the grievance arising out of the grant of a permit (not a case of renewal) which gives cause of action for the appeal. The appellate authority laid emphasis on Clause (e) which deals with an appeal by a person aggrieved by the refusal of renewal of a permit. Absence of any provisions for appeal in case of grant in Clause (e) and non-mention of renewal in Clause (f) led the appellate authority to hold that grievance when renewal is granted is not within the purview of Clause (f).

8. Mr. Ranjit Mohanty for the petitioner contends that the view of the appellate authority about the scope of Section 64 (1) (f) of the Act is contrary to law and on a misreading of the statutory provision the appellate authority failed to exercise jurisdiction vested in him under the Act. Learned Counsel for the other side contends that the interpretation of the appellate authority is in accordance with law and as such the appeal has been rightly dismissed as not maintainable. Both sides have precedents to support their view. We shall first refer to the case supporting either view and then proceed to decide the matter.

9. In support of Mr. Mohanty's contention he has relied upon a Division Bench decision of the Patna High Court in the case of Mahabir Motor Co. v. Bihar State, AIR 1956 Pat 437. This question pointedly arose for determination before their Lordships of the Patna High Court. Against renewal a person providing transport facility who had opposed the renewal came up in appeal and the appeal had been entertained by the appellate authority. The writ application was directed against the decision of the appellate authority on the ground that no appeal lay. It is useful to quote in extenso the contentions raised before the Division Bench and the answers given by their Lordships.

'In support of the petition two points have been urged before us by Mr. Bhabananda Mukherji, who appeared for the petitioner. The first point is that the order of the State Transport Authority in the exercise of its appellate jurisdiction was itself void and without jurisdiction, because no appeal lay to the State Transport Authority.

Our attention has been drawn to Section 47 of the Motor Vehicles Act, which states, inter alia that in deciding whether to grant or refuse a stage carriage permit, the Eegional Transport Authority shall have regard to certain matters mentioned in clauses (a) to (f) of Sub-Section (1) of the section; subSection (1) further states that the Regional Transport Authority shall also take into consideration any representations made by person already providing road transport facilities along or near the proposed route or routes or by any local authority or police authority within whose jurisdiction any part of the proposed route or routes lies or by any association interested in the provision of road transport facilities.

Section 57 of the Motor Vehicles Act lays down the procedure in applying for and granting permits. Sub-Section (3) of Section 57 says, inter alia, that the application shall be notified and a date will be fixed for the hearing of representation in connection with the application. SubSection (5) of Section 57 lays down that the Regional Transport Authority shall dispose of the application at a public hearing at which the applicant and the person making the representation shall have an opportunity of being heard either in person or by a duly authorised representative.

Our attention has also been drawn to Section 58 (2) of the Motor Vehicles Act which states that a permit may be renewed on an application made and disposed of as if it were an application for a permit; therefore the procedure for renewing a permit is the same as for granting a permit, though under the proviso to Sub-Section (2) of Section 58 an application for renewal is to be given preference over new applications for permits.

. . . .Clause (f) states, inter alia, that any person providing transport facilities who. having opposed the grant of a permit, is aggrieved by the grant thereof, may prefer an appeal under Section 64. Mr, Bhabananda Mukherii has argued that Clause (f) is limited only to the grant of a permit and does not, therefore, extend to the renewal of a permit. He has drawn our attention to the fact that in other clauses of Section 64 a distinction has been drawn between the grant of a permit and the renewal of a permit; for example, Clause (a) relates to the grant of a permit; Clause (el relates to the refusal of renewal of a permit.

* * * *I have already referred to Sections 57 and 58 which show that the procedure for the renewal of a permit is the same as the procedure for the grant of a permit, if therefore, a person has a right to oppose the renewal of a permit, it seems somewhat strange and anomalous that he shall have the right to oppose the renewal of a permit but not the right of appeal against an order adverse to him. There is further difficulty in accepting the narrow construction put on Clause (f) by Mr. Bhabananda Mukherji.

A local authority or police authority has also the right to make an objection to the grant of a permit; they can also make an objection to the renewal of a permit. If the narrow construction sought to be put on Clause (f) by Mr. Mukherii is accepted, then the local authority or the police authority will also have no right of appeal against an adverse order made on an application for the renewal of a permit, as distinguished from an application for the grant of a permit This will give rise to a very anomalous result; and unless the words of the clause force us to accept a narrow construction, such a construction as will result in an absurdity should not be accepted.

* * * *I would, therefore, hold that Clause (f) of Section 64 relates not merely to the grant of a permit but also to the renewal of a permit; and a person who is aggrieved by the order of renewal has the right to prefer an appeal under Section 64 of the Act.'

This view receives direct support from a Division Bench decision of the Kerala High Court in Gopalan v. S T A T., Trivandrum, 1965 Ker LJ 795. After referring to the scheme under the Act their Lordships have held--

'In our opinion the renewal of a permit is really the grant of a new permit to an existing operator, and that appears to be the gist of the observations of the Supreme Court in the decision cited above. It then follows that an order for renewal of a permit is appealable by transport operators who have opposed the renewal under clause ff) of Section 64 of the Motor Vehicles Act.'

Two years later while dealing with the right of appeal under the Motor Vehicles Act a Full Bench of that Court in Kiuriakose v. Regional Transport Authority. Ernakulam, 1967 Ker LJ 433 indicated--

'It has to be noted, as pointed out in Ramnath Prasad v. State Transport Authority. AIR 1957 Patna 117. that Section 64 does not speak of any 'order' as the foundation for an appeal and that it speaks only in terms of a person aggrieved by a refusal, as for example, of the grant of a permit or of a renewal thereof............'

By necessary implication this observation of the Full Bench is to the effect that when the renewal is allowed, the aggrieved party has a right of appeal.

10. The opposite parties rely upon a Bench decision of the Bombay High Court in the case of The Central Provinces Transport Services. Jabalpur v. State Transport Authority. Bombay. ILR (1961) Bom 174. Mudholkar. J. as his Lordship then was. answered the point directly against the petitioner holding that an appeal lies only against an order granting a permit and not against an order granting renewal of a permit. They also rely upon a Division Bench decision of the Mysore High Court in the case of S. R. T. Corporation v. Naniund-appa. AIR 1972 Mys 47 and a .Bench decision of the Allahabad High Court in the case of Bhan Singh v. R. T. Authority. Meerut. AIR 1967 All 163. There is some observation in the case of Ram Swarup v. S. T. A. Tribunal, AIR 1970 All 182, which supports the reasoning given in the cases taking the view that the procedural aspect provided in Section 58 (2) of the Act cannot be taken to confer a right of appeal with reference to the provisions of Section 64 of the Act.

11. We do not find any need to critically analyse the view expressed by the series of cases which are said to support the contention of the opposite parties. The matter seems to have been concluded by the Supreme Court decision in Ram Gopal v. Anant Prasad. AIR 1959 SC 851. In paragraph 12 of the judgment it has been stated:

'.........The different clauses in the section deal with different situations. Each is independent of the others Clause (f) deals with a case where an objection had been filed against the fresh grant or the renewal of a permit put the permit has none the less been granted or renewed. The clause gives the objector a right of appeal against the result of the rejection of his objection it the is one of the persons mentioned in it. The clause gives him that right irrespective of the fact whether he has a right of appeal under any of the other clauses or not.........'

The Bombay decision referred to this case and quoted also a part of the judgment, but overlooked this portion of the judgment. The Kerala case referred to by us did rely upon this decision of the Supreme Court. We must hold that the law as laid down by their Lordships of the Supreme Court did confer a right of appeal on the petitioner. The Tribunal went wrong in its conclusion that an appeal at the instance of the petitioner did not lie and therefore, it was in error in holding that the appeal at his instance was not tenable. That conclusion of the Tribunal is liable to be vacated.

12. In view of the findings of the appeallate Tribunal, once the appeal is found to be maintainable, the renewal granted in favour of the opposite party No. 2 must be quashed. ' We would accordingly allow the application and direct issue of a writ of certiorari quashing the order of the appellate Tribunal dated 10th of April. 1972. as also the decision of the Regional Transport Authority dated 18-12-1971 allowing renewal of the permit. The petitioner shall be entitled to his costs. Hearing fee is assessed at rupees one hundred.

Panda, J.

12. I agree.


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