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P.S.N. Motors Ltd. Vs. Gangadhara Menon - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKerala High Court
Decided On
Case NumberA.S. No. 515 of 1959
Judge
Reported inAIR1962Ker34
ActsMotor Vehicles Act, 1939
AppellantP.S.N. Motors Ltd.
RespondentGangadhara Menon
Appellant Advocate T.N. Subramonia Iyer and; P. Balagangadhara Menon, Advs.
Respondent Advocate S. Narayanan Potti,; P. Karunakaran Nair,; P.V. Ayyappan
DispositionAppeal dismissed
Cases Referred and Kesavan Embranthiri v. Krishnan Embranthiri
Excerpt:
.....not be taken into consideration in this matter, and if qualifications were considered as on that date the appellant would be found to be better qualified than the 1st respondent to get the permit. , clearly indicates that if qualifications were adjudged as on the date when the r......the chowara malayattur route via kalady. he had also without complaint been operating a temporary permit on the route under consideration ........ and since ext. r-5 date he has been on the lines without causing difficulty to the travelling public. it would appear further that he had established garage at chaisikudy and kalady though after ext. r-l date. he has also his residence on the route. it is these various qualifications that recommended (the 1st respondent) to the r. t. a. the appellate authority thought that the principle of supporting a small operator as against big ones, if other conditions were equal, referred to and applied by the r. t. a. when it passed the final order r-6 was unobjectionable. but it thought that the other conditions, viz., as to operational efficiency.....
Judgment:

Madhavan Nair, J.

1. The appellant, the 1st respondent and 8 others bud submitted applications for a stage-carriage permit for the route Chalakudy -- Malayattur via Kalady in response to a notification dated 9-11-1955 of the Regional Transport Authority, Trichur (who will be referred to hereinafter as the R. T. A.). After due notification, receipt of representations, and a public bearing as per Section 57 of the Motor Vehicles Act, the R. T. A. granted the permit to the 1st respondent by its order Ext. R-l dated 5-5-1956. Four of the disappointed applicants appealed to the appellate authority, the Central Road Traffic Board, Trivandrum, and the latter by their order Ext. R-2 dated 14-8-1956 vacated the order of the R. T. A., on the ground that the order did not give reasons for the rejection of the applications other than the one which was allowed by the R. T. A. During the pendency of the appeal before the Central Road Traffic Board there wag a stay of operation of the order of the R. T. A,, but in the meanwhile the 1st respondent was given a temporary permit to ply a bus on the route. It is admitted that that temporary permit was extended from time to time in favour of the 1st respondent till a pucca permit was granted to him on 24-8-1957 and that thus the 1st respondent has been running a bus on the concerned route from 5-5-1950 to this day without interruption and without any complaint from the travelling public or anybody else.

After remand by the Central Road Traffic Board, the R. T. A. heard the matter again at a public hearing on 31-1-1957 and decided to grant the permit to the 1st respondent himself, Ext. R-3 being the proceedings of even date. Three of the disappointed applicants took the matter in appeal before the State Transport Appellate Tribunal (referred to hereinafter as the S, T. A. T.), who set aside the order of the R. T. A. by their proceedings Ext. R-4 dated 23-7-1957 on the ground that the reasons given therein for the refusal of the permit to the appellants were vague and inadequate, and remitted the matter again to the R. T. A. The R. T. A. considered the applications afresh for the third time and passed their proceedings Ext, R-5 dated 24-8-1957 granting the permit again to the 1st respondent himself. Three appeals were preferred against that order and thereupon the S. T. A. T., by Ext. P-2 order dated 22-11-1958, set aside the order of the R. T. A. and granted the permit to the present appellant. The 1st respondent at once moved an Original Petition (O. P. No. 803 of 1958) in this Court for a writ of certioravi to quash the order of the S. T, A. T. and secured stay of the operation of that order in the meanwhile. The learned Single Judge, before whom the O. P. came up for disposal, observed:-

'.... he (the 1st respondent here) has been successfully operating the Chowara Malayattur route via Kalady. He had also without complaint been operating a temporary permit On the route under consideration ........ And since Ext. R-5 date he has been on the lines without causing difficulty to the travelling public. It would appear further that he had established garage at Chaisikudy and Kalady though after Ext. R-l date. He has also his residence on the route. It is these various qualifications that recommended (the 1st respondent) to the R. T. A. The appellate authority thought that the principle of supporting a small operator as against big ones, if other conditions were equal, referred to and applied by the R. T. A. when it passed the final order R-6 was unobjectionable. But it thought that the other conditions, viz., as to operational efficiency should not have been later acquired by the small operator as here. According to the Appellate Authority, the position as on 5-5-1956 when the first order was passed by the R. T. A- should alone apply. But why it belated that date and not more consistently the notification date or at least the date when the rival application for permit was respectively made is not clear. It is no doubt true that the applications refer to qualifications and necessarily refer to subsisting ones and not to be acquired in the future. But even so there is no principle that subsequent development should not be taken into consideration.'

In this view, the learned Judge allowed the Original Petition and 'quashed Ext. P-2 order of the S. T. A. T. so as to restore to effect Ext. P-l order of the R. T. A.' This appeal is against the last-mentioned Order.

2. We have held in Vypeen Transport Corporation v. State Transport Appellate Tribunal, Trichur, 1960 Kor LT 1058 : (AIR 1961 Ker 77) that the essential factor that has to be considered in the matter of the grant of a stage Carriage permit is the interest of the traveling public, and that that would mainly depend upon (1) the experience of the applicant in operating the service and (2) his facilities for operating the same. Experience in this regard must be the experience in operating services on the route in question and if such be not available on routes nearby. So much so experience in respect of a part of the route in question must be considered as a preferential qualification for the grant of permit over the route, in the absence of applicants with experience over the entire route. In determining the operational facilities of the applicants we have stated that the authorities have to consider the ownership of the applicant to the vehicle offered to be put in service on the route, the fitness of that vehicle, the financial position of the applicant in relation to capacity to man any the service in good order and to mete out all risks attendant on the venture, the provision he has for maintenance and repairs of the vehicle, the accommodation and conveniences that the applicant proposes to give to the passengers and like other matters.

3. It is stated that the 1st respondent has put a new bus on the route as soon as he was given the temporary permit in May 1956 and that he has been operating it on the route from 1956 to this day without any complaint from the Public or the authorities. That he maintains workshops at Chalakudy and Kalady are also admitted by the appellant. Both, the R. T. A. and the S. T. A. T. have accepted the principle that 'if other conditions are equal and if the interests of the traveling public will not be adversely affected a small operator should be preferred to a big elect owner.' The appellant is admittedly a big fleet owner having more than 200 buses operating in the State; and the first respondent is said to be a small but efficient operator. But the S. T. A. T. took the view that the operational qualification, efficiency and experience of the applicant must be judged as on 5-5-1956, the date of the first order of the R. T. A., and that any qualification acquired after that date should not be taken into consideration.

We are unable to follow the reasoning in this; if the S. T. A. T. had observed that the qualifications of the applicants should be taken as on the date of the notification or even as on the date fixed for the receipt of the applications, one can understand it, But why the qualifications should be taken as on the date of the first order of the R. T. A. granting the permit is not clear to us. If qualifications acquired after the submission of the applications but before the passing of the first order of the R. T, A. granting the permit can be considered, it passes beyond comprehension why the qualifications acquired before reconsideration of the matter by the R. T. A. as per the directions of the appellate authority should not be accepted by them when they are passing the final order to grant the permit. We agree with the learned Single Judge in his observation: 'There is no principle that subsequent developments should not be taken into consideration.' This Court has always held that facts and events, including legislations, that came to be subsequent to the institution of the proceedings have to be taken into consideration in moulding the conclusion in the case. See Savu Mohammed Abdulla v. Neelakantan Krishran. 1957 Ker LT 911 : 1977 Ker LJ 950 : (AIR 1958 Kerala 322); Sankara Pillai v. Mathunri Itiera, 1958 Ker LJ 672 : 1958 Ker LT 220 : (AIR 1958 Korala 245); Nani Kuniukrishnan v. Padmarabha Pillai Krishna Pillai, 1958 Ker LT 984 : 1958 Ker LT 645 : (AIR 1959 Ker 38) and Kesavan Embranthiri v. Krishnan Embranthiri, 1959 Ker LJ 390 ; 1959 Ker LT 361. There is no reason why the experience gained by the 1st respondent by running a bus on the route for a pretty long time and the other operational facilities made by him in respect of the service on the route should be overlooked by the authorities in deciding on the grant of the permit The interests of the travelling public cannot certainly canvass the same. The proceedings of the S. T. A. T. Ext. P-2, shows that they have reversed the order of the R. T. A. mainly on the ground that the qualifications acquired since the date of Ext. R-l order should not be taken into consideration in this matter, and if qualifications were considered as on that date the appellant would be found to be better qualified than the 1st respondent to get the permit.

The order as a whole, especially when it is read along with the order of the R. T. A., clearly indicates that if qualifications were adjudged as on the date when the R. T. A. or the S. T. A. T. passed their final order in the matter, the qualifications of the 1st respondent were in no way inferior to those of the appellant. It follows therefore that the grant of the permit to the 1st respondent by the R. T. A. cannot be said to be perverse or unfair. The view of the S. T. A. T. that the qualifications acquired after the date of the first disposal of the application by the R. T. A. should not be looked into is a clear error apparent on the face of the record, The order of the learned Single Judge of this Court who had exercised his discretion in the circumstances above-said to quash the decision of the S, T. A. T. thereby restoring to effect- the order of the R. T. A. cannot be said to be unwarranted. It follows therefore that this appeal against the exercise of discretion by the learned Single Judge does not succeed.

4. The appeal is dismissed. But in the circumstances of this case we do not make any order asto costs.


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