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New Data Bus Service (P) Ltd. Vs. Delhi Transport Carporation and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 113 of 1973
Judge
Reported inILR1974Delhi8
ActsMotor Vehicles Act, 1939 - Sections 64A; Code of Civil Procedure (CPC), 1908 - Sections 115; Provincial Small Cause Courts Act, 1887 - Sections 25; Constitution of India - Article 226; Motor Vehicles (Amendment) Act, 1959 - Sections 64
AppellantNew Data Bus Service (P) Ltd.
RespondentDelhi Transport Carporation and ors.
Advocates: Yogeshwar Prasad and; A.B. Saharia, Advs
Cases ReferredSri Rama Vitas Service (P) Ltd. v. C. Chandrasekaran and
Excerpt:
.....under articles 226 are neither in the nature of appeal nor review. - - 3 hereafter called 'the tribunal'). the tribunal found that the performance of the appellant during the currency of the license period had been satisfactory and basically sound and that its over-all operation was also better conditioned than that of its rival and that there was no justification for the authority to refuse to renew the 3 permits and directed the renewal of these 3 permits in favor of the appellant. 1 shall hold good unless and until it is set aside by the transport appellate authority on a fresh hearing of the appeal under section 64 and the revision under section 64a filed by the respondent no. unlike section 115 of the code the powers under section 64a are not hedged by the limitations prescribed..........above apparently has reference to para 3 of the judgment where it was observed in regard to the appeal filed before the tribunal that 'this appeal, thereforee, could be considered as an appeal against the order refusing to renew the permits and as a revision against the order granting the permits.' (5) to start with, shri yogeshwar parshad, counsel for the appellant, urged that the learned single judge was in error in holding that the 'scope of revision under section 64a of the act was the same as that of revision under section 115 of the code of civil procedure or section 25 of the provincial small cause courts act so that it were errors of jurisdictional nature and of law alone which could be considered by the revisional authority. we see substance in the submission. section 64a of.....
Judgment:

S.N. Shankar, J.

(1) The appellant Messrs New Data Bus Service (P) Ltd., has appealed against the order of the learned single Judge accepting the writ petition filed by Delhi Transport Corporation (respondent No. 1 herein) and quashing the order passed in appeal by the State Transport Appellate Tribunal, Delhi (respondent No. 3 herein) and remanding the matter to be re-heard by the appellate Tribunal in the light of the observations made in the order. Respondent No. 2 in this appeal is Delhi State Transport Authority.

(2) The appellant is a private transport operator and operated buses on the Inter-State Delhi-Bhiwani route. The number of stage carriage permits to be issued for this route as agreed to between the States of Haryana and Delhi, through which the route ran, was 16. Out of this, the appellant held 8 permits which were issued to it for three years. Before the expiry of this period, the appellant applied for renewal of the permits. Respondent No. 1, Delhi Transport Corporation, filed a representation opposing the grant. It also filed an independent application for the grant of these permits which was opposed by the appellant. The Delhi State Transport Authority (hereafter called 'the Authority') considered the applications of the appellant and respondent No. 1 together, being rival claimants for the grant of the same permits. By resolution No. 9 dated August 29/30, 1972 the Authority decided to renew only 5 out of 8 permits of the appellant but refused to reneW the remaining 3 and granted these 3 permits to respondent No. 1. Against this decision, the appellant filed an appeal before the State Transport Appellate Tribunal, Delhi (respondent No. 3 hereafter called 'the Tribunal'). The Tribunal found that the performance of the appellant during the currency of the license period had been satisfactory and basically sound and that its over-all operation was also better conditioned than that of its rival and that there was no justification for the Authority to refuse to renew the 3 permits and directed the renewal of these 3 permits in favor of the appellant. Respondent No. 1, in these circumstances, filed the writ petition, which has led to this appeal, and prayed that the order of the Tribunal be quashed. The learned single Judge held that findings of the Tribunal were based on a serious misapprehension of law in as much as the Tribunal assumed that the order of the Authority refusing to renew the 3 permits amounted to an order cancelling them and this wrong assumption had distorted the prospective and approach of the Tribunal to the controversy before it. He also held that because of this wrong approach the findings of the Tribunal were vitiated as they were based on no evidence and were in disregard of the material evidence on the record and law on the subject. He thereforee, accepted the writ petition, quashed the order of the Tribunal and directed :-

'IT is ordered that the resolution No. 9 passed by the respondent No. 1 shall hold good unless and until it is set aside by the Transport Appellate Authority on a fresh hearing of the appeal under section 64 and the revision under section 64A filed by the respondent No. 3. The respondent No. 2 is directed to rehear the appeal and the revision in the light of the observations made in this order. The appellate Authority shall hear the appeal and the revision afresh and shall give adequate opportunity to both the parties to be heard and then give its decision.'

(3) Dealing with the scope of revision under section 64A of the Motor Vehicles, Act, 1939 (hereafter called 'the Act') in the body of the order, the learned Judge observed that the scope of revision under the Act was the same as that of a revision under section 115 of the Code of Civil Procedure or section 25 of the Provincial Small Cause Courts Act, 1887.

(4) It was conceded by respondent No. 1 before us that the appellant (respondent No. 3 in the writ petition) had filed only an appeal before the Tribunal and had not filed any revision. Mention of a revision 'filed by the respondent No. 3' in the observations extracted above apparently has reference to para 3 of the judgment where it was observed in regard to the appeal filed before the Tribunal that 'this appeal, thereforee, could be considered as an appeal against the order refusing to renew the permits and as a revision against the order granting the permits.'

(5) To start with, Shri Yogeshwar Parshad, counsel for the appellant, urged that the learned single Judge was in error in holding that the 'scope of revision under section 64A of the Act was the same as that of revision under section 115 of the Code of Civil Procedure or section 25 of the Provincial Small Cause Courts Act so that it were errors of jurisdictional nature and of law alone which could be considered by the revisional authority. We see substance in the submission. Section 64A of the Act Provides for revision and entitles the State Transport Tribunal to interfere if it appeared to the Tribunal that the order made by the Regional Transport Authority was 'improper or illegal'. There is no other limitation on this power. Unlike section 115 of the Code the powers under section 64A are not hedged by the limitations prescribed in clauses (a); (b) and (c) of section 115. Similarly, section 25 of the Provincial Small Cause Courts Act justifies interference only if the High Court is satisfied that the decision was not in accordance with law. Section 64A of the Act permits interference with the decision if it is improper or illegal. The scope of revision under section 64A of the Act is thus wider than the scope of revision under section 115 of the Code of Civil Procedure or section 25 of the Provincial Small Cause Courts Act. This question came up for consideration before a Division Bench of Patna High Court in Mohammad Elias v. Ardhendu Mishra and another : AIR1966Pat25 . On page 28 of the report, their Lordships repelled the contention that the revisional powers were confined only to cases where there was a patent error or law resulting in failure of justice and followed the unreported Supreme Court decision in Ram Narain Singh v. M/s. Dalip Singh Balwant Singh (Civil Appeal No.99 of 1964 decided on (February 25, 1964) where it was ruled that the power under section 64A of the Act was wide enough to permit the revisional authority to interfere in its discretion even with the finding of fact of the subordinate authority. In Maharaj Jagat Bahadur Singh v. Badri Parshed Seth 1963 P.L.R. 452 dealing with sub-section (5) of section 15 of the East Punjab Urban Rent Restriction Act which conferred power of revision on the High Court to satisfy itself as to the 'legality or propriety' of any order or proceeding, the Supreme Court said that' the scope of revision under this provision was not the same as under section 115 of the Code of Civil Procedure and was much wider and that it was not confined to the question of jurisdiction only. Section 24 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 also confers powers of revision on the Chief Settlement Commissioner to call for the record of any proceeding under this Act to satisfy himself as to the 'legality or propriety' of any order passed by subordinate authorities mentioned in this section. In Moti Ram Mehra and others v. Union of India and others , it was held that this power was not confined only. to examining the legality and propriety of the order but the Chief Settlement Commissioner could also examine the correctness of the order because the power to examine the legality meant the power to test whether the order was in accordance with law. It is unnecessary, however, to examine this question in further details because we find that in the instant case the appellant had rightly filed the appeal before the Tribunal and in deciding that appeal the Tribunal had all the powers of an appellate court or Authority.

(6) The appeal before the Tribunal was against resolution No. 9 of the Authority dated August 29/30, 1972. By this resolution the Authority renewed only 5 out of the 8 permits of the appellant and refused to renew the other 3 permits. By the same resolution the Authority also granted the 3 permits to Delhi Transport Corporation, respondent No. 1 before us. Clauses (e) and (f) of section 64 of the Act which confers the right of appeal were thus squarely attracted. The former confers a right of appeal on a party 'aggrieved by the refusal of renewal of a permit' and the latter entitles 'a person providing transport facilities who, having opposed the grant of permit, is aggrieved by the grant thereof....... ' to file an appeal. Mr. Saharya frankly conceded this position. The Tribunal, thereforee, in this case was competent to entertain, hear and decide the appeal filed before it as an appellate authority and to reappraise the whole matter. The question of treating this appeal or any part of it as a revision did not arise. The question for decision, thereforee, is whether the order passed in appeal by the Tribunal suffered from any infirmity that can be examined by this Court in exercise of its writ jurisdication. In the order under appeal before the Tribunal the Authority held:-

'THEState Transport Authority thereforee decides to renew five of its stage carriage permit Nos. N-1 to N-5 and as a symbolic punishment not to renew the remaining three permits from N-6 to N-8. Three fresh stage carriage permits may be granted to the Delhi Transport Corporation for this route on completion of usual formalities which they be asked to do within a week.'

(7) We find that respondent No. 1 before the Tribunal supported this view of the Authority and maintained that the Authority had rightly cancelled the permits of the appellant in exercise of its powers under section 60 of the Act. The appellant also subscribed to this view. The Tribunal, thereforee, in its order said 'it is common ground that the refusal to renew a stage carriage permit tantamounts to its cancellation under the provisions of section 60 of the Act'. On the basis of this 'common ground' it proceeded to examine the correctness of the findings of the Authority in this regard and came to the . conclusion that the three permits could not be cancelled under section 60. It did not stop there by setting aside the order of the Authority on this ground. It proceeded further to consider whether the appellant was entitled to the renewal or grant of the permits as prayed for by it independently of the fact that the order of the Authority cancelling the permits was bad. The renewal of stage carriage permits, by virtue of section 58(2), the Tribunal correctly said, was governed by the conditions prescribed in section 47 of the Act. After noticing the provisions of sub-section (2) of section 58 as well as section 47 in support of this conclusion, the Tribunal observed:-

'Aperusal of the aforesaid two Sections in their application to the instant case will imply that- (1) regard is to be paid to the interest of the public generally [clause (a) of sub-section (1) of Section 47]; and (2) other conditions being equal, an application for renewal shall be given preference over new applications for permits-(proviso 2 under sub-section (2) of section 58).'

In the part of the order that followed, the claim of the appellant was then examined from this angle. In these circumstances, the contention that the Tribunal misdirected itself in determining the controversy and proceeded on the assumption as if the appeal was only from an order of cancellation of permits cannot be accepted.

(8) Proceeding in this perspective which, it is not disputed, was the correct approach, the Tribunal then analysed the reasons that had led the Authority to refuse to renew the permits and placed them in the following three categories:-

(1)the desire of the D.T.C. to operate on the route (to the exclusion of private operators); (2) violation of the provisions of the Act by the Company; and (3) Public complaints...

Dealing with the first, it observed that the desire of Delhi Transport Corporation was of no consequence. As regards violations of the provisions of the Act, it noticed that the violations alleged consisted of allegations of over-speeding, two instances of over-loading of eight buses during the period of three years and challans on account of not carrying the insurance cover on the vehicle. In regard to the over-speeding, in the earlier part of the order, the Tribunal had already found that the record showed that out of 16 challans that were proved on the record to have been filed for over-speeding, only 7 had been decided but it was not proved whether the decision in these 7 resulted in acquittal or conviction. In regard to over-loading the Tribunal held that two instances of over-loading during the period of three years that had been proved on the record was a most insignificant factor. As for challans, for not carrying the insurance cover, the Tribunal took the view that this question was wholly irrelevant to public convenience which was the predominant consideration prescribed by section 47. Then dealing with public complaints, the Tribunal found that they related to over-charging, and misbehavior of the staff employed by the appellant. On the merits of these complaints, it found that these allegations were not established by evidence on record and that the public complaints were anonymous and could not be relied upon. The Authority had also stated in the order under appeal that the appellant missed the scheduled trips and did not observe the time-table. The Tribunal examined evidence in this respect also and came to the conclusion that the allegations were not borne out by the record. In refusing to renew the permits the Authority had further relied on the consideration that the appellant had old and defective buses causing frequent break-downs. The Tribunal examined this aspect as well and recorded the finding that the allegation 'does not stand-established by the evidence on record'. In respect of the alleged frequent break-downs, the Tribunal observed that there was no evidence except three exports by a Deputy Suprintendent (Traffic) on which, for reasons given in the order, 'no reliance can be placed'. It then proceeded to examine the allegation that the financial position of the appellant was unsatisfactory and said that what was to be seen was the status of the appellant at the time of making the application for renewal and not its financial position prior to that. The Authority had said that the appellant had once been warned because its financial position at that time was unsatisfactory. The Tribunal observed that this warning was not relevant to determine the financial condition of the appellant at the time of renewal. It found, on the contrary, that the audit report for the year ending 31st December, 1971 placed on record showed that it was financially sound with viable assets. After all this discussion, the Tribunal arrived at the final conclusion in the following words:

'ONthe basis of the aforesaid analysis, I cannot but hold that the Company's operations during the preceding three years have basically been sound and that it has in no way ignored the convenience to the public so required to be provided in law.'

(9) In the penultimate paragraph of the order, the Tribunal also observed that in view of the findings that the operation of the appellant on the route in question was satisfactory and in accordance with the spirit of law, it was not necessary to compare the merits of the rival claimants but still proceeded to do so and said:-

'BUTI can't help mention that the working of the D.T.C. stands condemned by its own General Manager as per his press release dated 23-9-72 and further by the Authority vide its resolution to which a reference has been made by Mr. Dhawan. In the circumstances, I cannot but associate with Mr. Dhawan that the overall operation of the Company is better conditioned than the D.T.C. at present and this being so, the Company deserved the renewal of its permits in preference to a new grant thereof to the D.T.C'

Mr. Dhawan referred to by the Tribunal in the order was the counsel appearing for the appellant.

(10) The Tribunal thus, in our view, was fully aware of the legal position that the three permits of the appellant could be granted or renewed only on a consideration of the merits of the claim under section 47. No part of the order dealing with this aspect indicates that the Tribunal was swayed by any other considerations. All the findings recorded by the Tribunal in this regard are based on valid material placed before it and it is not for the writ Court either to reappraise the evidence before the Tribunal or to substitute its own opinion for that of the Tribunal. Those findings are final and conclusive between the parties-(Syed Yakoob v. K. S. Radhakrishnan and others) : [1964]5SCR64 . The appellate authority under the Motor Vehicles Act is not like a full-fledged court of law and its orders are not to be examined in writ jurisdiction in the same manner as judgments of a court of law are examined by the appellate Court.

(11) Our attention was drawn to Sub-Divisional Officer and Collector, Shivasagar v. Shri Gopal Chandra Khound and another : AIR1971SC1190 , in support of the proposition that the writ Court would be justified in quashing the order when it was passed on the basis of an incorrect presumption. This rule, however, is not attracted to this case. As we have shown above, the Tribunal was under no misapprehension as to the law governing the grant of permits and did not proceed on any presumption. Though in the earlier part of the order the Tribunal was not right in adopting the argument of respondent No. 1, which was also urged by the appellant, that the order of the authority was one of cancellation of the permits under section 60, the final conclusion in the later part of the order is not based on this assumption and is independent of it. The later part proceeds on grounds quite distinct and separable from the earlier part. The two parts of the order are cloarly separable. The order as a whole cannot, thereforee, be quashed on this ground. In fact the position in law is as held by the Division Bench in T. M. Vythilinga Pillai, Shri Ambiga Bus Service, Tirupapuliyur Post v. R. Lakshminarayanan, Cuddalore N.T, and another : AIR1964Mad465 , that 'where the order granting stage carriage permit to an applicant is based on grounds which are distinct and separable and if one of them is indisputably valid the High Court would not be justified in interfering in writ jurisdiction, merely because the other ground is opposed to law being a misdirection in law or being a result of assumption of jurisdiction in excess of inhibition of S. 57(4) of the Motor Vehicles Act'.

(12) Shri A. B. Saharya, appearing for respondent No. 1, in support of the order of the learned single Judge, in addition to reiterating that the approach of the Tribunal in deciding the controversy was erroneous and based on a misapprehension of law, a contention for which, for reasons already stated, we find no justification, urged that the findings recorded by it were not based on any evidence and were arrived at by not considering relevant material' He said that there was no evidence to indicate that the working of respondent No. 1 was in any manner inferior to that of the appellant and the observation in the part of the order extracted above that 'D.T.C. stands condemned' was based on a clear misreading of the press release dated September 23, 1972. We are unable to agree with the learned counsel. The press statement dated September 23, 1972 was on page .137 of the record of the Tribunal. It was issued by the General Manager of respondent No. 1. In this statement after enumerating the steps taken by this respondent for maintaining the traveling facilities, the General Manager, amongst others said not only that 'the management does not claim that it has met the traveling needs of the metropolis in full' but also that due to certain wanton acts of law-breakers as well as mob fury substantial harm had been done to the service of respondent No. 1 and its losses as a result of this destruction were estimated at Rs. 5,50,000.00 besides the loss of daily traffic revenue. Shri Saharya urged that these facts were mentioned in the statement to win public sympathy and were by way of an appeal so that the public may be more considerate and that these statements did not imply any condemnation of respondent No. 1. Whatever may have been the motive of the press release, the facts stated in it were capable of an interpretation that there had been a set back in the affairs of respondent No. 1, adversely affecting its working. The Tribunal interpreted the press statement in this manner. So long as this is a possible interpretation of this statement, the writ Court will have no jurisdiction to interfere with the order of the Tribunal. To support this finding, the Tribunal has also referred to a resolution to which its. attention was drawn by the counsel appearing for the appellant. The learned single Judge while accepting the contention of respondent No. 1 that this finding was based on no evidence has observed that this resolution was not even on the record- This, however, is not so. The resolution is on the record and Shri Saharya conceded, and we have ourselves seen, that it is on page 333 of the record of the Tribunal. It was specifically referred to by the appellant in the grounds of appeal filed before the Tribunal and respondent No.. I had full notice of it. According to this resolution, in its meetings held in July, August, September, October and November, 1971 the Authority considered the application of respondent No. 1 for plying buses on Delhi-Kotana route but rejected it on the ground of 'highly unsatisfactory performance' of respondent No. 1. The resolution also recorded that respondent No. 1 had been missing more than l/3rd of its scheduled trips as it did not have adequate number of buses to meet even the needs of local commuters. The Tribunal was entitled to take this resolution into consideration and nothing has been pointed out to us to show that it was not relevant for. the issue before the Tribunal.

(13) A suggestion was made that the Tribunal had not considered that the appellant was constantly running in losses and as such its financial position was weak but the argument was not pressed in view of the balance-sheet of the appellant produced before the Tribunal which disclosed that the appellant had earned profits in the year during which it applied for renewal of the permits and the assets of the appellant exceeded by nearly four lakhs even after taking into account the accumulated losses suffered by the appellant in all the previous year.

(14) The learned counsel then urged that the Tribunal had failed to take into account the prosecutions launched and the convictions suffered by the appellant in the course of its working on the route during the period of the permits. The grievance has no substance. The Tribunal has considered this aspect. As stated earlier, only 16 challans for over-speeding had been proved before the Tribunal out of which only seven stood decided, but the Tribunal found that it was not proved whether the cases decided had ended in acquittal or conviction. The question of consideration of convictions, thereforee, by the Tribunal did not arise.

(15) Whatever facts were placed and arguments urged before the Tribunal were examined by it and it was as a result of the cumulative effect of the evidence that the Tribunal came to the conclusion that the appellant was entitled to the renewal of the permits. The decision of the Tribunal, we find, is the result of a proper assessment of all the relevant factors. The Supreme Court in Sri Rama Vitas Service (P) Ltd. v. C. Chandrasekaran and others : [1964]5SCR869 , has said that it is not safe in such circumstances to issue a writ of certiorari merely on the ground that all the relevant reasons have not been set out in the order of the Tribunal. Proceedings under. Article 226 are neither in the nature of appeal nor review. The appellate authority normally will consider only such questions as are urged before it-(See G. T. Venkataswamy Reddy and others v. K. V. Puttanarasimharaju and others A.I.R. 1966 Mys. 341 and we find that the order of the Tribunal in this case fully complies with this rule.

(16) For all these reasons, we are of the view that the order of the Tribunal did not suffer from the infirmities which can be examined by this Court in exercise of its writ jurisdiction. This appeal is, thereforee, accepted. The order of the learned single Judge dated May 16, 1973 quashing the order of the Tribunal is set aside and the writ petition is dismissed. In the circumstances of the case, we leave the parties to bear their own costs.


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