1. This is on appeal directed against the Judgment of the learned single Judge who dismissed the appellant's petition under Articles 226 and 227 of the Constitution of India against the grant of a stage carriage permit to respondent Hemraj by the State Transport Appellate Tribunal, Jaipur (hereinafter called 'the S. T. A. T.') on Bikaner Salasar route.
2. To appreciate the rival contentions urged before us it will be neeessary to recount a few facts. Bikaner-Salasar via Nokha and Sujangarh is a 130-mile route in the Bikaner region. On October 9, 1958 a scope of 12 permits was fixed over the route by the Regional Transport Authority Bikaner (abbreviated as 'the R. T. A.'). The scope of 12 permits was increased to 18 by the R. T. A. on the 30th October, 1965. Sixteen vehicles were plying on the Bikaner-Salasar route when on 12-12-1967 the R. T. A. resolved to amalgamate the routes of (1) Nokha-Sojangarh, (2) Sujangar-Salasar and (3) Nokha-Bikaner with the Bikaner-Salasar route. On January 28, 1969 the R. T. A. determined the scope of the amalgamated route under Section 47 (3) of the Motor Vehicles Act at 24 vehicles with six return trips. On June 24, 1969 the applications of respondent No. 3 Hemraj and some 15 other persons for permits on Bikaner-Salasar route came to be considered but the R. T. A. rejected all the applications on the ground that as 24 vehicles were already plying on the route there existed no vacancy. Respondent No. 3 Hemrai preferred an appeal against the resolution of the R. T. A. and the S. T. A. T. by its order dated. the 19th July, 1971 allowed the appeal on the ground that the scope fixed by the R. T. A. on 30th October. 1965 on Bikaner-Salasar route via Nokha and Sujangarh stood intact and because only 16 vehicles were plying there were two clear vacancies and Hemraj was entitled to a permit. Aggrieved by that decision Nathuram appellant questioned the decision of the S. T. A. T. by means of a writ but it was dismissed by the learned single Judge, mainly on the grounds (i) that Nathuram's predecessor-in-title did not file any objections to the application of Hemrai for a permit as envisaged by Section 57 of the Motor Vehicles Act and as such the writ bv him was not maintainable: (ii) that the petitioner made wrong statement of fact in Para. 3 of the petition when he said that only 3 routes, namely. (1) Bikaner-Salasar, (2) Nokha-Sujangarh and (3) Sujangarh-Salasar were amalgamated on 12-32-1967 whereas in point of fact the fourth route Bikaner-Nokha was alsoamalgamated; (iii) the learned single Judge held that Hemraj's application was published in the Gazette on 29-6-1968 and was, therefore, ripe for consideration on that date. It was on 28-1-1969 that the scope on the amalgamated route was revised and the crucial time to ascertain whether there was a vacancy or not was 29-6-1968 when there existed 2 vacancies on the un-amalgamated route of Bikaner-Salasar and, therefore, the S. T. A T. was right in granting a permit; (iv) and lastly the learned single Judge held that the scope of the amalgamated route was not properly determined.
3. Mr. Mehta, learned counsel for the appellant, submitted that the application of Hemraj was published on 29th June, 1968 by which date no objection could be submitted by the appellant as it was on 28th January, 1969 that the R. T. A. determined the scope on the amalgamated route at 24. A representation under Section 57 (3), urged the learned counsel, was in the nature of an objection against the applicant and not for fixing the quota for permits under Section 47 (3). The material time for taking into account the scope fixed under Section 47 (3) of the Motor Vehicles Act was the time when the application for grant of a permit came for consideration and not the time when it became ripe. He placed reliance on Kasireddy Varahalu v. State of Andhra Pradesh, AIR 1968 Andh Pra 1 (FB); Maharashtra State Road Transport Corporation v. Mangrulpir Joint Motor Service Co. (P.) Ltd., AIR 1971 SC 1804; Ajit Kumar Singh v. Regional Transport Authority, Kanpur, AIR 1972 All 169 (FB); Abdul Mateen v Ram Kailash Pandey, AIR 1963 SC 64; R. Obliswami Naidu v. Addl. State Transport Appellate Tribunal, Madras, AIR 1969 SC 1130; Mohd. Ibrahim v. State Transport Appellate Tribunal, Madras. AIR 1970 SC 1542 and Dilip Kumar Dutta v. R. T. A. Hooghly, (1970) 74 Cal WN 524.
4. Mr. R. R. Vyas, learned counsel for the respondent No. 3. urged that the proviso to Section 57 (3) enabled the R. T. A. to summarily refuse the application if any grant of permit was beyond the limit fixed in that behalf under Sub-section (3) of Section 47. The R. T. A. not having rejected Hemrai's application under Section 57 (3) there was a vacancy. The application not having been objected to under Section 57 (3) the writ petition by the appellant was not competent. He placed reliance pn Sri Raja Rajeswari Bus Service, Vridhachalam v. Regional Transport Authority South Arcot Cuddalore, AIR 1969 Mad 458 and Girdhari v Regional Transport Authority, 1970 Raj LW 465. He also submitted that there was no provision for fixing thescope for the amalgamated route on the analogy of the inter regional route because it was no route as such. He placed reliance on Nilkanth Prasad v. State of Bihar. AIR 1962 SC 1135. He urged that the grant of a writ was discretionary and it should be denied to the petitioner-appellant because of his conduct in not joining the appeal or filing the writ before the grant of a permit. The grant of a writ is not a matter of right. He placed reliance on Bhagsingh v. Transport Appellate Tribunal, Rajasthan, 1966 Raj LW 66.
5. We might first dispose of the question whether the petitioner was guilty of suppressing any fact. The learned single Judge has observed that the petitioner in paragraph 3 of the petition only referred to 3 routes whereas in point of fact the amalgamation was of 4 routes as per Annexure II (sic). Ex. P/2 is the copy of the resolution of the R. T. A. dated 12-12-1967 which was annexed with the petition of Nathuram and the operative part of this resolution is that having regard to these circumstances it was decided that (i) Bikaner-Salasar. (ii) Nokha-Sujangarh, (iii) Sujangarh-Salasar and (iv) NoMia-Bika-ner routes may be amalgamated. But so far as Nokha-Bikaner operators were concerned they may be granted amalgamated permits on their applications according to rules and meanwhile they may be granted temporary permits on Nokha-Salasar route. The amalgamation of the fourth route was, therefore, dependent on the operators making the application. The subject title of Ex. P/2 refers only to three routes and it is likely that the petitioner while drafting the petition was misled on that account. This is not a case of any concealment or avoidance of a fact motivated by any advantage to be derived therefrom. It is merely an incomplete description.
6. The next question which arises for consideration is whether the appellant was not entitled to file the writ petition because he had failed to make representations under Section 57 of the Motor Vehicles Act against the application of Hemraj. The contention of the appellant is that the scope of the route having been fixed by the R. T. A. on the amalgamated route on 28-1-1969 vide Ex. P/4 the grievance of the appellant is not why a permit has been granted to Hemraj but why a permit has been granted in excess of the sanctioned limit and for filing a petition on a ground such as this it was not necessary to file any representation or joining the contest at appellate stage.
7. In R. Obliswami Naidu's case, AIR 1969 SC 1130 their Lordships of theSupreme Court have clearly laid down that in view of Sections 47 and 57 before granting a stage carriage permit two independent steps have to be taken. Firstly, there should be a determination by the R. T. A. under Section 47 (3), of the number of stage carriages for which stage carriage permits may be granted on that route. Thereafter, applications for stage carriage permits on that route should be entertained. The reason for clearly demarcating these two steps in the language of their Lordships was that if the determination of the scope of a route under Section 47 (3) and the grant of permit were taken together it would 'throw open the door for manipulations and nepotism'. Further we might recall what their Lordships have observed in Mohd. Ibrahim's case, AIR 1970 SC 1542. 'The Regional Transport Authority is not obliged to hear operators while exercising jurisdiction under Section 47 (3) in fixing the limit of number of stage carriage permits'. nO right of appeal or revision has been provided against an order under Section 47 (3).
8. In Ajit Kumar Singh's case, AIR 1972 All 169 (FB) the learned Judges have observed that the petitioners were entitled to challenge the grant of a permit even though they had not filed a representation to the application for a permit where the R. T. A. transgressed the sanctioned limit and acted outside the bounds of its jurisdiction.
9. Learned counsel for the respondent invited our attention to two cases of our Court, namely. Girdhari v. Regional Transport Authority, 1970 Rai LW 465 where this Court held that the petitioner failing to avail of the remedy under Section 64-A could not file a writ. The case is distinguishable. The petitioner in this case was one of the existing operators on Bikaner-Dungargarh-Sardar Sahar route. A new road was constructed between Dungargarh and Ratangarh. The appellant did not file any representation under Section 57 against the application of the respondent No. 3 and it was beld that he could not file a writ against the grant of a permit to him. The challenge before the R. T. A. was that it had not fixed any scope under Section 47. In these circumstances it was held that the petitioner could not challenge the grant of a permit. In Sharma Roadways v. Sohanlal Soni, 1965 Raj LW 340 this Court held that where the petitioner had not filed any representation before the R. T. A. he was not entitled to maintain writ petition against the grant of a permit. In that case there was no question about the scope fixed under Section 47 (3) of the Motor Vehicles Act. Another case relied on by the learned counsel for the respondent was Sri Raja Rajeswari Bus Service, Vridhachalam v. Regional Transport Authority South Arcot Cuddalore, AIR 1969 Mad 458. This case came to be considered by the same High Court in Gajendra Transport (P.) Ltd., Tirupur v. Anamallais Bus Transport (P.) Ltd.. Pollachi, AIR 1970 Mad 379 and the learned Judges observed as follows:--
'If by this observation, the Division Bench meant that even where there is no prior order under Section 47 (3) applications for stage carriage permit on a route have been filed and are notified, and an objection is raised and found to be well founded as to the absence of a prior order under Section 47 (3), it would be open to the Regional Transport Authority to take proceedings under Section 47 (3) separately, while keeping the proceedings under Section 57 (3) pending and before embarking upon the merits of the applications, we are of the view that such a procedure would go against the tenor of the view of the Supreme Court in R. Obliswami Naidu's case, AIR 1969 SC 1130.'
10. In the case before us the R. T. A. had taken proceedings under Section 47 (3) by fixing 24 permits on the amalgamated route of Bikaner-Salasar on the 28th January, 1969. The R. T. A. and the S. T. A. T. could not travel beyond the sanctioned limit and if they did they were acting without jurisdiction. A reference might be made to Abdul Mateen's case, AIR 1963 SC 64 where their Lordships observed.-
'We therefore agree with the High Court that where a limit has been fixed under Section 47 (3) by the Regional Transport Authority and thereafter the said authority proceeds to consider applications for permits under Section 48 read with Section 57, the Regional Transport Authority must confine the number of permits issued by it within those limits and on an appeal or revision by an aggrieved person, the Appellate Authority or the revisional authority must equally be confined to the issue of permits within the limits fixed under Section 47 (3)'.
In the circumstances on which our case rests a party directly affected by an action which was without jurisdiction because the appellate authority transgressed the limits duly set at 24 by the R. T. A. can maintain a writ petition regardless of the fact whether he had opposed the grant of the permit to A. B or C under Section 57 of the Motor Vehicles Act
11. The next question which Is connected with the preceding point is whether the limit fixed under Section 47 (3) on 30th October. 1965 on the unamalgamated Bikaner-Salasar route or the limit fixed regarding amalgamated routeon the 28th January, 1969 was relevant for deciding the application of Hemraj. The learned single Judge, as we have already noticed, has expressed the opinion that the relevant fixation under Section 47 (3) for the consideration of the application of Hemraj would be one which was passed on 30th October, 1965. The reason for this approach, according to the learned single Judge, was that Hemraj's application was published on May 30, 1968 it was ripe for consideration on 29th June, 1968 and not on the date when it was considered bv the R. T. A. i. e., 24-6-1969. We are unable to agree with the opinion expressed by the learned single Judge.
12. In Maharashtra State Road Transport Corporation's case, AIR 1971 SC 1804 at page 1810 their Lordships of the Supreme Court have made the following observations :--
'If for any reason, a long time elapses as in the present appeal, the Regional Transport Authority will have to consider the various matters enumerated in Clauses (a) to (f) of Section 46 of the Act at the time of consideration of the applications for the grant of permits'.
Note.-- The underlining is ours. In Section 46 one of the particulars contained in clause (a) to be considered is the route to which the application relates. While considering the route visa-vis the application the limit of the number of stage carriages fixed under Section 47 (3) cannot and should not be lost sight of. As we have already noticed, this is the first step before any grant of permit is made under Section 48 read with Section 57 of the Motor Vehicles Act. In Kasireddy's case. AIR 1968 Andh Pra 1 (FB) the learned Judges of the Andhra Pradesh High Court observed that the law applicable or the circumstances that have to be taken into consideration for grant of permits by the Regional Transport Authority are those which exist on date when permits are granted and not on date when proceedings were initiated. We are in respectful agreement with this view. The reasons are not far to seek. It is at the time of the grant of a permit that the sanctioned strength of the scope under Section 47(3) has to be taken into consideration. That is the boundary within which grants are to be made. It is the boundary which exists at the time of the grant which is relevant for consideration. Reference to any anterior fixation of the scope under Section 47 (3) in circumstances which no longer exist and which limits are no longer effective at the time of granting of the permit is an unrealistic evaluation of the situation as the grant is dependent on existing limits.
13. One more ground in passing has been referred to by the learned single Judge. He has critically appraised the order of fixation of the limit under Section 47 (3) on the 28th January, 1969, According to him the limit should have been at 66 and not 24. In this context it will be well to remember that when by its resolution of 28th January, 1969 Ex. P/4 the R. T. A. fixed the limit under Section 47 (3) for Bikaner-Salasar-130 mile long route objections were filed by Hemraj but nobody appeared on his behalf to press them. It is late in the day to assail the resolution of 28th January 1969 whereby the limit of 24 was fixed by the R. T. A. The S. T. A. T. when it granted the permit to Hemraj respondent did not question its propriety and we are doubtful if it could do so. Much less could we take that factor into consideration.
14. The argument of the learned counsel for the appellant that extension of a permit should be treated as if it was an inter-regional permit in our opinion is devoid of force and Nilkant Prasad's case, AIR 1962 SC 1135 does not help him. Extension of a permit is in essence variation of the condition of a permit by the inclusion of a new route or routes permissible under Section 57 (8) of the Motor Vehicles Act.
15. No other point has been pressed before us.
16. The result is that we accept the appeal of the appellant and set aside the order of the learned single Judge and quash the order of the S. T. A T. dated 19th July, 1971 whereby it granted the permit to Hemraj. There will be no order as to costs.