1. This is a petition under Art. 226 of the Constitution instituted by the petitioner against the State Transport Appellate Tribunal and the State Transport Authority, Delhi, in relation to an application made by the petitioner for the grant of a Stage Carriage Permit on the route-Delhi Fountain to Laxmi Nagar. This application was filed, according to the petition after the S. T. A. had fixed the strength of the number of Stage Carriage permit to be granted over this route as two and invited applications. It is also stated that there were several applicants for the same; the petitioner himself had applied for one of the permits and another firm, M/s. Mohan and Co., had applied for both permits. The Authority granted one permit to M/s. Mohan and Co., and all the other applicants were found ineligible for the grant of the second permit except M/s. Mohan and Co., and the petitioner. It appears that in Jan., 1971, the petitioner and M/s. Mohan and Co., were called by the State Transport Authority for a personal hearing (this date seems to have been wrongly mentioned as Jan., 1974 in the petition and elsewhere). At that stage, it was found that M/s. Mohan & Co., had sold their bus and were found ineligible for the permit. This left only the petitioner as the sole candidate. The petitioner claims that he is an experienced transport operator who should have been granted the permit on merits; but the Authority rejected even the petitioner's application and decided to invite fresh applications for the grant of a permit.
2. The. petitioner then appealed under S. 64 of the Motor Vehicles Act, 1939, to the Tribunal; this appeal was accepted and the ease was remanded back to the State Transport Authority for deciding whether the petitioner should be granted the permit. It is urged by the petitioner that the remand order was bad because the appeal should have 'been accepted and the permit granted to the petitioner. Against the order of remand,the petitioner has filed another Writ Petition (C. W. No. 419/75), which is still pending in this Court. Prima facie, there seems to be- no Explanationn why the matter was remanded back to the S. T. A because the matter could have been finally decided by the Appellate Authority which is fully competent under Section 64 of, the Act to grant or reject the application in the same way as the S. T. A. For the sake of convenience, I reproduce the reasons for the remand as reproduced in the present petition:-
'In this regard, I find that it would not be proper at the appellate stage to make such an order since the facts that there are no other applicants in the field except the appellant, for the grant of the permit in question, have not been placed before me from the side of the S. T. A. This Tribunal is not in a position to judge the merits or demerits of the case of other application, if any since no arguments have been advanced before me on this account.' It seems that the Appellate Authority failed to notice that the petitioner was the only remaining applicant and the question of considering any one did not arise. Still, the fate of the case after the remand has been some different and has raised more complications, which are the subject-matter of this petition.
3. After the remand, the State Transport Authority passed a resolution on 16th July, 1974, which is Annexure 'B' to this petition and instead of deciding whether the petitioner should be granted the permit, Deems to haw gone some what on a tangent by passing the following resolution:
'Resolution No. 4 dated 16-7-1974.
The members examined the Comparative economics of Mini Buses, vis a vis a full bus put up before the S. T. A. and were of the opinion that in the wake of energy crisis it will not be in the national interest to use Mini Bus where full bus can operate as per capita consumption of diesel in Mini bus was several times 'higher than that in a full. They were also of the opinion that in Delhi the use of Mini buses may be -encouraged only from Delhi Junction New Delhi Railway Station and 1. S. B. T. to different place. In the city as full buses are not allowed to enter Railway Yards and I. S. B. T. In the light of above consideration it was decided to issue any more permits on the route Fountain to Laxmi Nagar'.
Against this order, the petitioner appealed to the State Transport Apellate Tribunal, which after reconsidering all the facts and circumstances came to the following conclusion:-
'it is evident from the impugned resolution that the Authority has gone into the question of operational economics of mini buses and have come to the conclusion that the use of mini 'buses may be encouraged only from Delhi Junction, New Delhi Railway Station and Inter State Bus Terminus, etc.,........... In the light of this division of the Authority and the above discussion I would be disinclined to interfere with the impugned resolution of the Authority.' It is again obvious that the Appellate is Tribunal did not exercise itself at all as to the correctness or otherwise of the resolution, nor whether the S. T. A. had no jurisdiction' to pass the resolution.
4. Now, the question which has been raised before me by the petitioner is that initially there were a number of applicants; 'but only two, persons were found Do be eligible, when there were only two Permits to be granted. One permit was granted to M/s. Mohan & Co.. and the second permit should have 'been granted to the petitioner being the only candid1ate. This proposition seems to be unassailable provided there- is no change in the facts or circumstances later on.
5. If, only two permits had to be granted, then the petitioner had to be given the second permit unless the Authoritv found that it could not give the permit to the petitioner for some valid reason. No clear reason appears on the record of this case as to why the permit was not given initially to the petitioner. It is not at all clear why the Authority called for fresh applications when the petitioner was the only remaining applicant. The Authority was 'bound to issue the permit to the petitioner when he was the only remaining applicant and the only eligible person claiming a grant of the permit. However, even the Appellate Authority did not accept this contention and remanded the case. Now, at the stage of the remand, a resolution was passes by the S. T. A. on 16th July, 1974, whichN I have reproduced above, raisin two some what complicated questions of law.
6. Firstly, this order can be regarded as an order passed under S. 47 (21 of the Motor Vehicles Act, 1939. That provision states that the R. T. A. may haying regard to the matters mentioned in subs. (1) of S, 47 limit the number of stage carriages to be issued in a particular region or over a particular route, etc. The resolution as, it read& seems to indicate Mat the S. T. A. considered this matter and came to the conclusion that a Mini bus was not suitable for use in the Delhi area,, except if the bus started from Delhi Junction, New Delhi Railway Station or the Inter State Bus Terminus. It war thereforee, of the view that all other permits should be granted to full-size buses now, this is a question of great general importance and it is not restricted to the petitioner in any respect. Such a resolution would have drastic effect an all mini bus operators throughout the Union Territory. It is true that this order has been Passed after the remand of the case, but it is not restricted in its operation to the Petitioner.
7. It is contended by learned counsel for the petitioner with a great deal of judicial support that S. 47 (3) is a section which is to be resorted to by S. T. A. at a stage earlier than the time when the application for permit is actually under consideration by the Authority. Generally stated, the Regional or the State Transport Authority is supposed to first decide the number of Stage Carriage permits that it is prepared to grant over a particular route or over a particular area. Having considered this matter at a preliminary meeting, it can deal with particular applications and deal with the same under S. 57 of the Act. At the stage of dealing with such applications, either a stage carriage permit can be granted or it can be refused. When the application is rejected, then reasons have to be given under S. 57 (7) of the Act. The contention of the learned counsel for the petitioner is that when the State Transport Authority was considering the grant of a permit to the petitioner, 'it could not change its mind as to the number of permits to be granted over the route. It could not say that Dow this route is not for mini buses and no permit should be issued.
The argument has great deal of support from the following judgments of the Supreme Court; and other Courts: Abdul Mateen v. Ram Kailash Pandey, : 3SCR523 ; R. Obliswami Naidu v. Addl. State Transport Appellate Tribunal, Madras, : 3SCR730 ; Balu Ram v. S. T. A. T. Gwalior (Blue print of the Supreme Court judgment D/- 22-3-1968 in C. A. No. 727 of 1965) (SC); Rattan Lal Gupta v. Suraj Bhan, : 2SCR555 ; Mohd. Ibrahim v. State Transport Appellate Tribunal, Madras, : 1SCR474 , N. Sambandam v. S. Khadar Sheriff Air 1966 Mad l,- Jadumani Pradhan v. Brinibash, 0065/1974 : AIR1974Ori202 ; Malik Ram v. Regional Transport Authority, Jaipur, 0043/1956 (FB); A. Narayana Kamath v. State Transport Authority, Air 1960 Mys 33 and M. Ramayya v. State of Andhra Air 1956 AP 217, and the Blue print of the Judgment of the Supreme Court in Jaya Ram Motor Service v. Sri. Rajarathinam, dated 27th Oct. 1967 : (1967) 2 Scwr 857.
All these judgments are to the effect that the S. T. A. and even the Appellate Authority cannot change the number for permits that have to be granted over a particular route. These cases really arose, because there was a tendency by the Authority to grant fresh or further permits to certain persons at the hearing and-'in some cases to disallow the grant of permits to some persons, by merely increasing or reducing the number of permits to be granted. For example, in Jaya Ram Motor Service v. Sri Rajarathinam, which has been referred to by learned counsel, the number of permits was reduced to nill at the time of the consideration and the Supreme Court held that you (the Authority) cannot change your earlier decision; you cannot reduce the number of permits to be granted. At first sight, it seems that the petitioners position is exactly the same, because the resolution in fact reduces the number of permits to nil. And, thereforee, the case of the petitioner appears to be fully covered by the Supreme Court's judgment.
8. There is one great distinction in this case. Firstly, the number was not reduced at the time the petitioner's application was initially considered,, but much later, after his application had been rejected and his appeal had been remanded back. It seems, or at least should seem proper, that the Regional or the S. T. A. should be able to alter the number of permits to be issued under S. 47 (3) of the Act at some stage. For instance, if the number had been fixed, say in 1971 at two, it should be able to raise it to seven in 1975, or conversely, it should be able to say that the number should be reduced, because of changes in the traffic situation. I do not read S. 47 (3) as being so constant as to prevent the Regional Transport Authority from altering the number of permits over a particular route once they have been fixed forever. But the question remains, as the Supreme Court has pointed out, and I here place reliance on He2de J's observations in R. Obliswami Naidu v. Addl. State Transport Appellate Tribunal, Madras : 3SCR730 , I that this change should not occur when the application for stage carriage permit is actually under consideration. The position, thereforee, is that if there is a S. T. A. which wants to act under S. 47 (3) of the Act, it must fix the number of permit F. to be granted over a particular route, and after that the applications should be decided in the light of that fixation. This is the normal position. I do not know if this holds true even if there is an appeal and a remand thereafter. thereforee, there is , possibility in my view that he number can be altered once the matter has been disposed of in the first Instance by the R. T. A.
There can be cases in which a mala fide order is passed under Section 47(3) merely to defeat the claim of a particular person, or there may be a case in which a number of permits has been increased merely to accommodate a particular person. If this is the case here, I would have no hesitation in striking down the resolution of 16th. July, 1974. Unfortunately, the resolution is so widely worded as to cover the w1hole of Delhi, and all future mini bus permits throughout the territory. This being a matter of such general application and of such wide importance, it is difficult to t1lunk that the resolution was passed only to defeat the petitioner. That is why I have been inclined to consider it as a resolution under S. 47 (3), because of its wide amplitude, hence the case appears to be distinguishable from the normal line of cases where the number of the permits has been altered to defeat some one or to accommodate another in an oblique manner.
9. At this stage, I have been given the opportunity to look at the actual agenda before the S. T. A. at the time the resolution was passed and find that the only item was the consideration of the petitioner's application (after remand). There was no general item under S. 47 (3). Hence, I must come to the conclusion that the resolution though widely worded was not passed under S. 47 (3) but when the matter was under consideration under S. 57. This means that the law laid down by the Supreme Court is fully applicable in this case. The impugned resolution is, thereforee ultra virus if considered as passed under S. 47 (3) of the Motor Vehicles Act, 1939.1
10. Even if the order is not valid under S. 47 (3), it can still be passed under S. 57 (7). That section merely provides that when the R. T. A. refuses an application, it should give the applicant in writing his reasons for the refusal. As the Supreme Court has held; that the number of permits cannot be altered, it would follow that this order could not be passed under S. 47 (3).
11. The next question is: Can this order be passed under S. 57 (7)? For this purpose, it is necessary to recall that S. 47 has two parts; both of which have to be considered under S. 48. The procedure roughly is that an application for a State Carriage Permit has to be made under S. 46 containing the particulars stated in that Section. This application has then to be considered by the R. T. A. under S. 47 (1). If S. 47 (3) has to be applied, then the R. T. A. must first fix the number of permits and then consider the application under S. 47 M. Then, there is S. 48, which states that subject to the provisions of S. 47, an R. T. A. may on an application made under S. 47 grant a Stage Carriage Permit in accordance with the application, etc., or refuse to grant such a permit. The substantive Section, thereforee, is S. 48. The procedural Section is S. 57 which Lives the procedure for applying for and granting permits generally, thereforee, when the S. T. A. considered the petitioner's application, it had to look at S. 47 to see if the conditions for granting a permit were satisfied. At thing stage, it could also refuse the application for reasons that it deemed fit. The reasons actually given have now to be examined. If they are valid in this case, the order can be upheld.
12. It is stated in the resolution that the application is being disallowed because it is a matter of observation that a mini bus should not be used in the national interest as diesel fuel consumption for running a mini bus was more than for a full bus. Thus, the conclusion of the Authority was that it was more expensive to use a mini bus than a full bus. To my mind, this can be an important consideration for the grant of permit to a bigger bus as opposed to mini bus. The applicant had applied for a mini bus. The applicant must have thought that the extra expenditure incurred does not make any difference. It is also clear that applications for permits had been invited only for a mini bus. The learned counsel for the petitioner , that he is willing to run a full bus on the same Permit if the Court so orders and there is no objection to this. It would, thereforee, appear that the petitioner's application 'had been rejected for reasons recorded in the resolution, but the reasons are not really material for this purpose. The question of expense of running the bus is a consideration of the operator, and must also have been there initially when it was decided under S. 47 (3) that there should be two permits for this route for mini buses. It is possible that there was some change in circumstances between 1971 and 1974 which may have a bearing on the fact that mini buses which were proper in 1971 were not proper in 1974. Those facts have not been mentioned in the resolution.
13. On this material, I have to hold that the R. T. A. bas not considered the matter properly and the order is no a sound one. On the other hand, it may be that something more was intended to be said, which I am not able to appreciate. It is also contended by learned counsel that a number of transporters are using mini buses on different routes even after the resolution was passed, generally in conjunction with the Delhi Transport Corporation. Generally these permits are granted to the Delhi Transport Corporation and then used by different operators on payment of charges to the Corporation. This matter is not material for consideration, but it is possible that there may be some facts which are not very clear and specially as a number of years have intervened since the application w as moved in 1971 and the resolution was passed in 1974 and presently it is 1977. To grant the petitioner a permit at this stage in accordance with the legal rights that he had in 1971, in my view, creates a situation that this Court would be deciding a Question on which it has no material at all. thereforee, though the petitioner was undoubtedly entitled to get the permit in 1971, 1 think that the S.T.A. must reconsider the matter and, thereforee, I would proceed to quash the resolution dated 16th July, 1974, and the appellate order dated 6th Sept. 1975, rejecting the petitioner's application. This brings me to the type of relief that should be granted to the petitioner.
14. As I have noticed above, the petitioner is entitled to the 2rant of a permit in accordance with the original decision of the State Transport Authority to grant two Stage Carriage Permits over the particular route involved in this case. Such a permit should have been granted in the first instance. As a Iona period has elapsed in between the invitation for applications and the decision of this Writ Petition, there is just a possibility that the situation has changed materially. As I have noticed, there are allegations in the petition and more especially in the rejoinder affidavit that mini bus permits are being granted to others in spite of the decision recorded on 16th July, 1974, that they would Dot be granted. Hence-, it is clearly apparent from these allegations that the resolution dated 16th July, 1974, is not being acted upon by the Authority. The rejoinder affidavit filed by the petitioner was followed by a further affidavit from the S. T. A. suggesting that the resolution of 16th July, 1974, was being acted upon. This matter was also considered by Prithyi Raj J. when he passed an interlocutory order on 4th March, 1977, in these very proceedings. He also noticed that the resolution dated f6th July, 1974 had been rendered nugatory as a number of other route Permits had been granted to mini buses operating from the Delhi Junction, New Delhi Railway Station or the Inter State Bus Terminus. One of the statements made in the affidavit by the State that these are temporary permits, the answer of the petitioner is that these permits though issued on a temporary basis are invariably renewed and thus, in practice become long term permits. By the said order passed by Prithyi Rai J, the petitioner was granted a temporary permit.
15. 1 cannot help noticing that if this was the situation at the time of the interlocutory order, it must still be true. thereforee, I have now two choices to make. I can either remand the case back for re-decision to the S. T. A. or I can grant the writ outright. On a consideration of the circumstances, particularly the nature of the order passed on 16th July, 1974. 1 think, I should grant the State Transport Authority an opportunity of considering this matter. I would, thereforee, remand the case to that Authority with certain directions. The Authority is debarred from varying the order passed under S. 47 (3) of the Act earlier in this case. I must take it for granted that two mini bus permits have to be granted over this route. It can only now determine whether there is any reason for rejecting the petitioner's action on any other ground. If Pp I there is no other ground, the Permit must be granted. In order to enable this matter to be justly disposed of, I also a direction that pending the deciglsio7n of the matter before the S. T. A. a temporary permit must be -granted to the petitioner as granted by the interlocutory order and that permit should be renewed till the matter is decided by T. A. It is necessary to give this direction, because the petitioner has already suffered heavily by reason of his bus lying idle for several years unnecessarily; this is a loss which cannot be compensated in any other way. The petition is allowed to this extent. In the circumstances, I leave the parties to bear their own costs.
16. Order accordingly.