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Ramakrishnan and anr. Vs. State Transport Appellate Tribunal, Ernakulam and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKerala High Court
Decided On
Case NumberO.P. Nos. 1194 and 1196 of 1959
Judge
Reported inAIR1960Ker245
ActsMotor Vehicles Act, 1939 - Sections 48 and 134(1)
AppellantRamakrishnan and anr.
RespondentState Transport Appellate Tribunal, Ernakulam and ors.
Appellant Advocate T.N. Subramania Iyer,; S. Subramonia Iyer,; M. Narayana
Respondent Advocate Govt. Pleader for 1st Respondent (in O.P. 1194/59) and Respondents 1 and 6 (in O.P. 1196/59),; V.M.B. Men
Cases ReferredThemmalapuram Bus Transport Ltd. v. Regional
Excerpt:
.....tribunal - petition filed for challenging same - as per provisions tribunal had no jurisdiction to stay operation of permit granted by authorities - orders of tribunal having effect of suspending operation of permit and of preventing operation of service were without jurisdiction and void - orders set aside. - - the second contention was, that the state transport appellate tribunal either failed to advert to the fact, winch was on record before it, that the petitioners had put their vehicles on the road, or if it was aware of it, did not attach any weight to it, before proceeding to prevent the operation of tbe services, both of which constitute errors apparent on the face of the record. section 60 deals with the power of cancellation and suspension of pennits, and sections 64..........by counsel in o. p. 1194 of 1959, that the state transport appellate tribunal has no power oven to stay the operation of the orders granting the permits, and on that ground top the orders impugned have been made without jurisdiction. the second contention was, that the state transport appellate tribunal either failed to advert to the fact, winch was on record before it, that the petitioners had put their vehicles on the road, or if it was aware of it, did not attach any weight to it, before proceeding to prevent the operation of tbe services, both of which constitute errors apparent on the face of the record.it seems 1o me, upon the arguments addressed, that the case has to be decided on the jurisdictional issue, for on that matter, the leading counsel slid v. k. k. menon, who appeared.....
Judgment:
ORDER

S. Velu Pillai, J.

1. These two Original Petitions have been filed under Article 226 of the Constitution, for quashing two interlocutory orders passed by the State Transport Appe'late Tribunal, Ernakulam, in two appeals pending before it, staying the operation of two orders passed by the Regional Trims-port Authority, Palgbat, by which it granted permits to the petitioners, to operate their stage carriages. The petitions are founded chiefly on two grounds, first that the orders sought to be quashed suffer from a jurisdictional defect which is common to both of them, and secondly, that, they are vitiated by an error apparent on the face of the record.

2. The operative part of the impugned order. Ext. P-l, in O. P. 1194 of 1959 says 'pending appeal, it will be very hard to permit the grantee to put his vehicle into operation on the basis or the order. I am therefore constrained to pass an order of stay in all the above petitions' and the operative part of the impugned order, Ext. A-L in O. P. 1196 of 1959 savs 'if the 12th applicant (the petitioner in O. P. 1196 of 1959) is permitted to put his bus into operation, the petitioners will be prejudiced. There is no public inconvenience it the operation of the order as against the 12th applicant is stayed pending appeal ...The petition for stay as against the 12th applicant. The Palghat District Motor Transport Co-operative Society Ltd., is a lowed granting a stay of the operation of the order as against it only'.

The scope and effect of the two orders are far from clear, but counsel were all agreed before me that they are such as to stop the further tunning of the stage carriages on the routes covered by the permits, and I shall therefore proceed to decide the petitions on the above basis. It would appear, that pursuant to the orders passed by the Regional Transport Authority, .Palghat, which are the subject of the appeals before the State Transport Appellate Tribunal, pennits had been issued to the petitioners, and they had accordingly nut their vehicles on the road, towards the end of last month, and have been operating the services ever since.

3. The first contention of the petitioners was that after the issue of the permits to them, the State Transport Appellate Tribunal had no juris- diction to make any order so as to suspend the operation of the pennits, or to prevent the running of the stage carriages; a further contention was raised by counsel in O. P. 1194 of 1959, that the State Transport Appellate Tribunal has no power oven to stay the operation of the orders granting the permits, and on that ground top the orders impugned have been made without jurisdiction. The second contention was, that the State Transport Appellate Tribunal either failed to advert to the fact, winch was on record before it, that the petitioners had put their vehicles on the road, or if it was aware of it, did not attach any weight to it, before proceeding to prevent the operation of tbe services, both of which constitute errors apparent on the face of the record.

It seems 1o me, upon the arguments addressed, that the case has to be decided on the jurisdictional issue, for On that matter, the leading counsel Slid V. K. K. Menon, who appeared for some of the counter-petitioners, took the definite stand before me, that if an inferior tribunal acts in excess of its jurisdiction, this court can and ought under Article 226 of the Constitution, to keep it within bounds and quash the order so passed, even though interlocutory in character, and he cited several cases in which interlocutory orders were interfered with on this ground. His point, however, was that there is no such defect in the orders impugned, he-cause, as he put it, the operation of the permit, which is the material thing, and not the operation of the services, is dependent on the continued force and operation of the orders granting the permits; and that whatever affects the orders would necessarily affect the permits. It is this question which falls to be determined in these petitions, I therefore refrain from considering the broader question, whether, even if a jurisdictional defect exists, this court is hound to interfere.

4. The question of jurisdiction has to be examined on the relevant provisions of the Motor Vehicles Act. Section 42(1) of that Act lays down, that no owner of a transport vehicle shall use or permit the use of the vehicles in any public place, save in accordance with the conditions of a permit. According to Sections 45. an application has to be made for the issue of a permit, and Sections 47 prescribes the procedure to be followed by the Regional Transport Authority in the disposal of an application for a permit. In doing so. it has to consider the various matters, which are classed under headings (a) to (f) in that Section including any representation which may be made against allowing the application. 'Under Sections 48(3) the Regional Transport. Authority, 'if it decides to grant a stage carriage permit', may grant the permit and may also attach one or more of the conditions which are enumerated therein.

Under Sections 58. the permit is to be effective without renewal, for a period not less than three years, and not more than five years, as may be specified in the permit. Section 60 deals with the power of cancellation and suspension of pennits, and Sections 64 confers a right of appeal against orders of various categories nassed by the Regional Transport Authority, including orders by way of granting permits or of attaching conditions to those already granted, Finally, Section 135(1) enacts, that notwithstanding any appeal which mav have been taken, the order appealed from shall remain in force, pending the decision of tbe appeal 'unless the appellate authority otherwise directs'.

5. It was beyond controversy, and may be taken as well-settled, that proceedings before the Regional Transport Authority or the State Transport Appellate Tribunal for the issue of permits are quasi-judicial in character. It is clear from this, and also from the provisions of the Motor Vehicles Act, that in such cases, a speaking order by the Regional Transport Authority, is what is contemplated. It is that order, which is appealable to the State Transport Appellate Tribunal. In the case of a refusal to grant, there is only the order pure and simple, and no question of the issue ot a permit can arise. It seems to me, that under the 'scheme of the Motor Vehicles Act, an order granting a permit is different from the issue of the permit, On the passing of the order, the permit is issued in execution of the order or by way of carrying it out. Being appealable, an order when appealed against, loses its finality, and is qualified by the result of the appeal.

An appellate authority in making the decision in appeal does only what the original authority ought to have done. Accordingly, the permit having been issued on the strength of such an order, must bear the same impress and Suffer from the same infirmity, if it may he so called, namely the lack ot finality till the decision of the appeal'. But it cannot be concluded, apart from any order of stay, whatever it means or implies, that the mere pendency of the appeal has any effect on the operation of the permit. It is one thing to say, that the finality of the order is dependent on the result of the appeal, but it is a different thing to say that the order. can be stayed; for the latter, there must be something which can or might be stayed; the case of an order granting a permit, pursuant to which no permit has yet been issued, presents no difficulty, but I fail to see, what there is to stay, when, what is directed by the order has already been executed or carried out by the issuing of the. permit. While Sections 48 of the Motor Vehicles Act, speaks of the grant of permits, it must he noted, that Sections 134 contemplates a stay of the order, and not the suspension of the operation of the permit. I find it difficult to reconcile myself to the notion that, the order granting a permit must be deemed to continue in force from day to day, in order that the authority conferred by the permit to operate the transport service may be exercised.

I grant, that a power to restrain the operator by an order of injunction from carrying on his activities would have a different effect, but then, such power must be expressly conferred, and cannot be left to he implied; a power of stay may perhaps, apart from Sections 134(1) of the Motor Vehicles Act, be deemed to be inherent in an appellate authority as held in Themmalapuram Bus Transport Ltd. v. Regional, Transport Officer, AIR 1957, Kerala 142 but it was not contended, that a power to issue an injunction can similarly be inferred. I am unable to perceive any valid distinction between a case like the present, and a case where a Receiver enters possession of the property pursuant to an order of receivership. In an appeal against such an order, counsel agreed, that if the order is carried out. a stay cannot be ordered suspending the receivership so as to direct the Receiver to vacate the property of which he has taken possession though if the order is not carried out the appellate court can stay its execution. In that case too, the order of Receivership is subject to the result of the appeal, which may be taken against it, the Receiver being bound to vacate the property in the event of the appeal being allowed. I there-fore consider, that the present orders of the State Transport Appellate Tribunal, which according to all parties, have the effect of suspending the operation of the permits, and of preventing the operation of the services, are without jurisdiction.

6. I do not set much store by the contention that no power of stay can be deemed to have been granted by the terms of Sections 134(1) of. the Motor Vehicles Act. As stated already, the view was taken by a learned Judge of this court that a power of stay is inherent in the appellate court. The provision in Sections 134(1) has been inserted in the Motor Vehicles Act by the Amendment Act, C of 1956, in order to confer expressly, a power on the appellate authority to order stay, pending appeal. On a plain reading of the section, I am satisfied that the appellate authority has power to order a stay; but then, it can operate only if there is something; which can and may be stayed. There is therefore no defect of jurisdiction in the orders complained of, on this score.

7. I have stated enough, to dispose of these Original Petitions, but I must observe, that the decision of these petitions is now practically of academic importance, because I am given to understand, the appeals themselves are posted next week for final hearing before the State Transport Appellate Tribunal, Counsel for the several parties express their readiness to proceed with the appeals on the date of posting, and their anxiety to nave them disposed of as early as possible. It is up to the State Transport Appellate Tribunal to see, that they are disposed of early. I may also observe, that apprehension was expressed on behalf of the petitioners, that in the reasons in support of the orders, the State Transport Appellate Tribunal had gone far too elaborately into the matter; but I am certain, that any tentative observation which it may have given expression to in the orders now passed will not influence it in the ultimate decision of the controversy, but that, it will be guided by the arguments which may be addressed and by considerations which are admissible,

8. 'It only remains to quash the orders whichare the subject-matter of these two Original Petitions and I accordingly do so, but in the circumstances and in view of the points raised before me,without costs. A cony of this order will be transmitted to the State Transport Appellate Tribunalwithout delay.


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