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Santosh Kumar and Etc. Vs. R.T.A. and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. Nos. 1591, 1890, 2120 and 2720 of 1983
Judge
Reported inAIR1985Raj130
ActsMotor Vehicles Act, 1939 - Sections 47, 54A and 64A; General Clauses Act, 1897 - Sections 3, 6 and 47(3)
AppellantSantosh Kumar and Etc.
RespondentR.T.A. and ors.
Appellant Advocate R.R. Vyas and; J.G. Chhangani, Advs.
Respondent Advocate R.N. Munshi and; B.L. Maheshwari, Advs.
DispositionPetition allowed
Cases ReferredAbdul Rehman v. State Transport Appellate Tribunal
Excerpt:
- - provided that the state transport appellate tribunal shall not entertain any application from a person aggrieved by an order of a statetransport authority or regional transport authority unless the application is made within thirty days from the date of the order :provided further that the state transport appellate tribunal may entertain the application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time :provided also that the state transport appellate tribunal shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard. if the high court's attention had been drawn to this failure on the part of the stale.....orderm.c. jain, j.1. these writ petitions raise some common questions of law, so, they have been heard together and are being disposed of by this order.2. i may state a few relevant facts giving rise to the above writ petitions.3. the regional transport authority, jodhpur (for short 'the rta') by its resolution dated march 9. 1976 revised the scope of nagaur, sujangarh, ladhu, khiyala and ladhu amalgamated route and fixed stage carriages to perform 8 return services. again the r. t. a. increased the scope from 22:8 to 30:12 vide its resolution dated august 25, 1982. the rta invited the applications under the vacancy of 8 stage carriage permits vide notification dated october 18, 1982 published in the rajasthan raj patra part vii, dated november 4, 1982. against the resolution of the r. t......
Judgment:
ORDER

M.C. Jain, J.

1. These writ petitions raise some common questions of law, so, they have been heard together and are being disposed of by this order.

2. i may state a few relevant facts giving rise to the above writ petitions.

3. The Regional Transport Authority, Jodhpur (for short 'the RTA') by its resolution dated March 9. 1976 revised the scope of Nagaur, Sujangarh, Ladhu, Khiyala and Ladhu amalgamated route and fixed stage carriages to perform 8 return services. Again the R. T. A. increased the scope from 22:8 to 30:12 vide its resolution dated August 25, 1982. The RTA invited the applications under the vacancy of 8 stage carriage permits vide notification dated October 18, 1982 published in the Rajasthan Raj Patra Part VII, dated November 4, 1982. Against the resolution of the R. T. A. dated August 25. 1982 whereby the scope wasincreased, one of the existing operators, Shri Satya Narain son of Shri Mangharam r/o Sujangarh, Dist. Churu filed a revision petition No. 124/82 before the State Transport Appellate Tribunal (for short 'the STAT). Shri Omprakash, the petitioner in writ petition No. 1990/83 applied for non-temporary stage carriage permit vide application dated September 1, 1982. Another Satya Narain son of Shri Madanlal, r/o Nagaur, the petitioner in writ petition No. 2120/83 applied on October 27, 1980 and Suresh Kumar, the petitioner in writ petition No. 1991/83 applied on December 2, 1982. One Smt. Champa Devi also applied under the old increased scope. All the four applications were published in the Rajasthan Raj Patra dated March 3, 1983 in pursuance of the notification dated February 18, 1983 and it was notified that the applications will be taken up for consideration in the meeting of the R. T. A. on April 27. 1983.

4. Shri Santosh Kumar, the petitioner in writ petition No. 2770/83 had also applied for non-temporary stage carriage permit on April 29, 1983, which was published in the Rajasthan Gazette dated June 16, 1983. Dhaniram and Shree Niwas applied on April 26, 1983 and Rameshchandra applied on April 18, 1983. Their applications were also published along with the application of Shri Santosh Kumar in the aforesaid Gazette under the notification dated May 31, 1983 and it was further notified that their applications will be taken up for consideration in the meeting of the RTA on July 29. 1983.

5. The RTA by its resolution dated April 28, 1983 granted the four non-temporary stage carriage permits to the applicants, whose applications were published in the Rajasthan Raj Patra dated March 3, 1983. The application of Smt. Champadevi was allowed and permit was ordered to be granted to her under the vacancy occurred under the old scope of 22 stage carriages and the other three applicants were granted permits under the vacancy of 8, so there remained five vacancies. The aforesaid four subsequent applications remained to be considered under the remaining vacancy of five and one of the applications was of Shri Santosh Kumar, the petitioner in writ petition No. 2720/83.

6. The revision petition No. 124/82 of Shri Satyanarain s/o Mangharam filed against the resolution of the R. T. A. dated August 25, 1982 increasing the scope from 22:8 to 30:12came up for hearing and the same was decided by the S. T. A. T. on July 25. 1983. The learned Member of the STAT partly allowed the revision petition and modified the resolution of the RTA dated August 25, 1982 to the effect that the revised scope of the aforesaid amalgamated route would be 22 permits and 12 services instead of the old scope of 22 permits and 8 services. It was further observed that the revision petition shall have no effect on the permit obtained by Smt. Champadevi (non-petitioner No. 2) before it. All these writ petitions are directed against the order of the STAT and the petitioners in all the four writ petitions have prayed that the resolution of the RTA dated August 25, 1982 may be restored and the order of the STAT reducing the scope from 30 to 22 may be quashed.

7. It may be stated here that Shri Santosh Kumar was not a party before the STAT in the revision petition and he had not made any application to be impleaded as a party there.

8. I have heard Mr. R.R. Vyas and Mr. J.G. Chhangani, learned counsel for the petitioners and Mr. R.N. Munshi and Mr. B.L. Maheshwari, learned counsel for respondent No. 3.

9. On behalf of the petitioners, first of all, it is urged that the order of the STAT has prejudicially affected the applicants, whose applications were published in the Rajasthan Gazette dated June 16, 1983. They had applied in April 1983 and their applications were ripe for consideration. One of the applicants was Shri Santosh Kumar, the petitioner in writ petition No. 2720/83. The petitioner Shri Santoshkumar and the other applicants had deposited fee and made huge investment for keeping the vehicle ready or made arrangements for the same. It was illegal and incompetent on the part of the STAT to have passed the order, which was prejudicially affected their rights and interests without giving them an opportunity of hearing and under the 3rd Proviso to Section 64A of the Motor Vehicles Act, 1939, it was imperative for the STAT to have given them an opportunity of hearing. As the said provision has not been complied with, the order of the STAT dated July 25, 1983 is invalid and is liable to be quashed. In support of the aforesaid contention, some authorities have been cited by the learned counsel for the petitioners.

10. On behalf of the contesting respondent.it has been urged by his counsel thai the petitioners are not aggrieved persons. No right has accrued to them. Simply by making an application for the grant of non-temporary stage carriage permit, a right of getting an opportunity of being heard, does not arise. It was submitted that from the scheme of Sections 45, 47, 48 and 57 of the Motor Vehicles Act, it would be evident that under Section 47(3), the RTA possesses power to fix the scope and no one has any right to be heard. Fixation of scope by the RTA is purely an administrative function. Viewed in this light, no right of hearing arises before the STAT. It was urged that there can be continuous flow of applications up to the date of hearing of the revision petition and if an application is filed before the RTA, then it would not be possible for the STAT to give an opportunity of hearing to such an applicant. It is for the applicant to move the STAT to implead him as a party to the revision petition. If this interpretation is taken that such an applicant has a right of an opportunity of hearing, the revision petition will never be heard. According to the learned counsel for the contesting respondent till the grant is made, the applicants for the grant of non-temporary stage carriage permits will have no right to be heard. They cannot be said to be in anyway prejudicially affected in case the STAT hears the revision petition and modifies or reduces the scope increased by the RTA. The learned counsel for the contesting respondent has also referred to some case law.

11. For facility of reference and for proper adjudication of the controversy raised before me, Section 64-A of the Motor Vehicles Act, 1939 is reproduced here as under : --

'64-A. Revision.-- The State Transport Appellate Tribunal may, either on its own motion or on an application made to it call for the record of any case in which an order has been made by a State Transport Authority or Regional Transport Authority and in which no appeal lies, and if it appears to the State Transport Appellate Tribunal that the order made by the State Transport Authority or Regional Transport Authority is improper or illegal, the State Transport Appellate Tribunal may pass such order in relation to the case as it deems fit and every such order shall be final:

Provided that the State Transport Appellate Tribunal shall not entertain any application from a person aggrieved by an order of a StateTransport Authority or Regional Transport Authority unless the application is made within thirty days from the date of the order :

Provided further that the State Transport Appellate Tribunal may entertain the application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time :

Provided also that the State Transport Appellate Tribunal shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard.'

12. The above provision empowers the tribunal either suo motu or on an application made to it, to pass any order as it deems fit, if it finds, that the order made by the State Transport Authority or Regional Transport Authority is improper or illegal after calling for the record of the case. The first proviso prescribes a period of limitation that no application shall be entertained from a person aggrieved by an order of the State Transport Authority or Regional Transport Authority unless the application is made within a period of thirty days from the date of the order. It would appear from the first proviso that an application under Section 64A can be made by a person aggrieved by an order of the Regional Transport Authority. But the third proviso lays down a duty or obligation on the part of the tribunal and it is couched in negative and prohibitory language, which makes the provision imperative. It is mandatory for the tribunal to give to any person a reasonable opportunity of being heard, in case it passes an order, which may be prejudicial to that person, that is, the third proviso prohibits the tribunal to pass an order under Section 64A prejudicial to any person without giving him a reasonable opportunity of being heard.

13. Proviso third to Section 64A came up for consideration by the Supreme Court in Municipal Board, Pushkar v. State Transport Authority AIR 1965 SC 458. In that case, the RTA passed a resolution in respect of shifting of the existing bus-stand to another place. Initially, the Municipal Board, Pushkar passed a resolution on May 24, 1948 regarding shifting of existing bus-stand and by the same resolution, it was resolved to construct a passenger shed, piyase, baths, latrines, urinals and other facilities for the convenience of the passengers ai ihe proposed new bus-stand.That proposal was considered by the RTA in its meeting held on the 3rd and the 4th December, 1959. As per the resolution of the RTA, a public notification was issued on June 28, 1960 and it was notified that no other place shall be used as a bus-stand in Pushkar. The two residents of Pushkar submitted an application for revision purporting to be under Section 64A which was heard by the State Transport Authority on February 18, 1960 and the same was rejected. Thereafter, five bus-operators moved a fresh application for revision under5. 64-A on April 13, 1960, which was decided by the State Transport Authority on January6. 1981. The State Transport Authority rejected the preliminary objection that no revision lay against the RTA's order and also the objection that the matter in dispute had already been heard and decided on February 18, 1960 and the State Transport Authority had no right to review its own order. On merits, the State Transport Authority was of the opinion that the proposed new bus-stand was likely to be a source of inconvenience to women pilgrims and children and that old bus-stand should be retained from the point of view of both public utility and convenience, so, the RTA's decision was reversed. Against that order of the State Transport Authority, the Municipal Board moved the High Court under Article 226 of the Constitution. Three grounds were urged before the High Court but they were negatived and the writ petition was dismissed. The Municipal Board filed an appeal with special leave and for the first time before the Supreme Court, this point was urged that the order dated January 6, 1961 of the State Transport Authority was made without compliance of the second proviso to Section 64-A. That proviso as it existed then, was as under :

'Provided further that the State Transport Authority shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard.'

It appears that the second proviso was added by Act No. 47 of 1978 and second proviso became third proviso and in this proviso for the word 'further', word 'also' was substituted. But so far as the rest of the language of this proviso is concerned, no amendment was introduced, so, the second proviso is almost the same as the third proviso, which exists at present. Their Lordships of the Supreme Court in para 33 observed as under : --

'This appears to us to make it necessary that before making any revisional order underSection 64A the State Transport Authority has to see that a person likely to he affected by that revisional order receives notice of the matter and is given a reasonable opportunity to be heard. The requirement of this proviso was admittedly not complied with before the State Transport Authority made the order on January 6, 1961 in the present case. If the High Court's attention had been drawn to this failure on the part of the Stale Transport Authority to comply with this statutory requirement, we have no doubt that the High Court would have felt compelled to quash the revisional order made.'

Their Lordships of the Supreme Court, therefore, quashed the order of the State Transport Authority dated January 6, 1961 and directed the State Transport Authority to dispose of the application for revision in accordance with law after public notice of the matter and, thereafter giving every person concerned in the matter, who wishes to be heard a reasonable opportunity of being heard.

14. From the above decision of the Supreme Court, it is clear that the power under Section 64-A can be exercised after seeing that a person likely to be affected by the RTA receives the public notice and is given a reasonable opportunity of being heard, and order has been considered to be 'prejudicial to any person', if he is 'likely to be affected by the order'. It may be stated that the objection relating to Section 64-A was agitated for the first time before the Supreme Court and was not even raised before the High Court and no application was moved by the Municipal Board before the State Transport Authority for being impleaded as a party to the revision petition or for giving an opportunity of hearing to it.

15. The learned counsel for the petitioners further cited a Division Bench decision of the Allahabad High Court in Parshottam Lal v. State Transport Appellate Tribunal, AIR 1979 All 279, which is a direct case on the point in issue. The RTA increased the strength of the route from 45 to 90 stage carriages and it invited applications for the grant of permanent permits and in response, the petitioner and some others made applications, which were published in the Gazette. The existing operators preferred a revision petition, which was allowed and the case was remanded to the RTA. The RTA re-fixed the strength increasing it from 45 to 60. Against that order as well, two existing operators preferred a revision. While the revision was pending, the petitioner moved an application before the Tribunal for being impleaded as an opposite party. It was averred by him that inasmuch as, the petitioner's application for the grant of stage carriage permit was pending consideration, he would be prejudicially affected if as a result of the orders passed in the revision by the tribunal, the sanctioned increased strength is reduced. The application was rejected by the tribunal on the ground that as a mere applicant for permit before the Transport Authority, the petitioner can claim no such interest which may require his impleadment in the revision. That order was challenged by the petitioner in the High Court under Article 226 of the Constitution. The learned Judge considered the second proviso to Section 64A as it then existed and observed that (at P. 281)-

'The second proviso to Section 64-A enjoins the Tribunal not to pass an order prejudicial to any person without giving a hearing to him. It is clear that under the resolution passed by the Transport Authority, increasing the strength from 45 to 60 the petitioner acquired a right to make an application for the grant of a permit, and indeed in exercise of that right, the petitioner had already made such an application which having been published in the Uttar Pradesh Gazette, was pending consideration before the Transport Authority. It is further clear that if the Revision of respondents Nos. 2 and 3 is allowed and the order of the Transport Authority is set aside the petitioner's application would immediately become infructuous or liable to be dismissed as incompetent. It would thus be seen that the petitioner would be hit directly and prejudicially by setting aside of the resolution passed by the Transport Authority. In our view, the right or interest of the petitioner to be heard in the Revision flowed from the resolution passed by the Transport Authority increasing the strength. The basis of the petitioner's claim to be heard in the revision was thus the order resolution (sic) of the Transport Authority and in as much as there was a possibility of this basis disappearing in the event of the Revision being allowed, the petitioner is certainly a person who would be prejudicially affected if the revision is allowed by the Tribunal. The mere fact that the petitioner has no legal right to claim increase in strength does not detract from the undisputed fact that the petitioner would beprejudicially affected by the setting aside of the resolution of the Transport Authority.Reliance was placed in that case on the decision of the Supreme Court in Municipal Board, Pushkar v. STAT, Rajasthan (AIR 1965 SC 458) (supra). This authority is on all fours of the present case.

16. This question also came up for consideration before this court in Jai Bharat Bus Services. Jodhpur v. STAT (Civil Writ Petn. No. 269 of 1978, decided on December 9. 1981). In that case, the RTA by its resolution dated March 9, 1976 increased the scope from 12 buses to perform 4 return trips to 16 buses to perform seven return trips and it advertised the vacancies and invited applications. Fourteen applications were made including that of the petitioner and non-petitioner No. 4. All the fourteen applications were published and objections were invited. No objections were submitted against the petitioner's application for the grant of one non-temporary stage carriage permit. The existing operators, however, filed a revision petition against the resolution of the RTA increasing in strength, which was accepted by the tribunal vide order dated July 29, 1976 and the resolution of the RTA was set aside. When the application of the petitioner came up for consideration, it was rejected on the ground that the order of the increased scope has been set aside by the STAT. Against the rejection of the application, two appeals were filed under Section 64 of the Act, one by the petitioner and other by the non-petitioner No. 4. The tribunal allowed both the appeals and remanded the case to the RTA vide its order dated August 10, 1977 and it was also directed that the RTA should consider the applications under the vacancy of the existing operator Banshidhar, who had not applied for renewal in time. The RTA considered both the applications and granted one permit to non-petitioner No. 4 & the petitioner's application was rejected and it also refused to increase the scope. An appeal was preferred but was dismissed. The petitioner then challenged the orders of the tribunal dated 4-2-1978 as well as of 29-7-1976 under which, the RTA's resolution revising the scope, was set aside. Relying on the aforesaid decision of the Supreme Court in Municipal Board's case (supra) and of the Allahabad High Court in Parshottam Lal's case (supra), this court held that the order of the STAT dated July 29. 1976 was violative of the third proviso to Section 64-A and it was observed that the STAT's orderdated July 29. 1976 came to the notice of the petitioner on January 17. 1977 when his application was dismissed by the RTA and prior to that, the petitioner had no notice. An objection was taken that it is now not open to the petitioner to challenge the order of the STAT dated July 29, 1976 but it was repelled and it was observed that in the facts and circumstances of the case merely because the order of the STAT. which was not challenged before this court and has now been challenged, a relief cannot be refused on the ground of delay, which has been explained, and it was further observed that the petitioner was not a party to revision petition No. 47 of 1976 decided on July 29, 1976, though he must have been made a party as in his absence no order could have been passed.

17. On behalf of the respondent, on the other hand, reliance has been placed on the decision of a single Bench of the Karnataka High Court in Prabhakar Adappa v. K. S. T. A.T., (1982) 2 Kant LJ 323. The RTA by its resolution dated July 19, 1980 opened 6 routes and in respect of two routes, the petitioners applied under Section 57(2) on October 1. 1980. One of the existing operators filed a revision petition before the Tribunal against the RTA's resolution dated 19-7-1980 and respondents Nos. 5 and 8 also filed a revision petition. The petitioner's application and other applications were advertised under Section 57(3) and the RTA on 9-10-1980 published the applications inviting objections. The respondent No. 3, the existing operator filed his objection on 21-10-1980 and he brought it to the notice of the RTA as well as the applicants that a revision petition is pending before the Tribunal under Section 64-A challenging the very opening of the routes. On 5-12-80, when the matter stood for consideration by the RTA, it had received a communication on 4-12-1980 indicating that the tribunal had set aside the RTA's resolution and the matter was remanded to the RTA for fresh consideration, so, the RTA on 5-12-1980 dropped the proceedings under Section 57(2). The petitioners approached the High Court aggrieved against the order of the Tribunal solely on the ground that the order of the tribunal dated 4-12-1980 was illegal and unsustainable in law inasmuch as the same was passed without hearing the parties, who were likely to be affected by it as enjoined in the third proviso to Section 64-A. The learned Judge framed the following questions for determination :---

'(1) Whether respondents who had preferred revision petitions before the tribunal ought to have impleaded the petitioners and others before the tribunal and failure to do so would vitiate the order of the Tribunal at Annexure-C to the petition?

(2) Whether the mere fact of making an application in response to the advertisement published by the 2nd respondent RTA under Sub-section (2) of Section 57 of the Act, the petitioners and the like of them acquired legal right to contest in order by the Tribunal though not parties to the proceedings before the tribunal under Article 226 of the Constitution before this Court?

(3) Whether the petitioners themselves should have moved the Tribunal to implead themselves as parties before final order was passed on 4-12-1980 by the Tribunal in the revision petitions pending before it?'

The learned Judge observed that on the date the 3rd respondent filed the revision petition, he could not be presumed to imagine, who all would be responding to the advertisement and apply for grant of stage carriage permits on the routes. Therefore, it is almost impossible to imagine how all such persons, who were likely to make applications should be made parties to the revision petition and further the resolution under Section 47(3) does not create a lis and if no lis exists between the two classes viz. future aspirants and another class of aggrieved person the existing stage carriage operators in the region, who may be affected, then the intending operators on the new routes opened, cannot be said to be necessary parties in the proceedings before the tribunal in revision, if they are not necessary parties, then they cannot be said to be aggrieved by any order that may be passed by the tribunal. It was held that the petitioners were not necessary parties and, therefore, they cannot be aggrieved persons. While dealing with the first question, this contention of the learned counsel for the petitioners was negatived that the petitioners should be considered as aggrieved persons as their right to prosecute the application, had come to an end by virtue of the impugned order. The learned Judge observed that -

'In the scheme of the Motor Vehicles Act such a thing is bound to happen and such person aggrieved remotely cannot be said to be the person aggrieved under the 3rd proviso to Section 64-A of the Act. The persons aggrieved by the order that is likely to be passed by theTribunal should be persons who are directly aggrieved by such an order, that is to say, in the case of suo motu order persons who are likely to be affected and in the case of arevision on the application of other aggrieved persons, those person and those who arerespondents to those proceedings. Many atime an order passed under revision may affect the public at large. If the construction attempted by the learned counsel for the petitioners is accepted, then every time an order is passed affecting the public, then a public notice must be issued by the Tribunalinviting the views of the members of the public. Such is not the schemes of_the Act.'

The above observations appear contra to the observations made by the Supreme Court.

18. The second question who also answered against the petitioners and it was held that the petitioners cannot be said to be aggrieved persons or to have locus standi to prosecute these petitions under Article 226 of the Constitution. So far as the third question is concerned, the learned Judge observed that 'the petitioners, if they wanted to sustain the order of 1980 (resolution) passed by the 2nd respondent, they should have taken the precaution to implead themselves and support the order. The petitioners knew of the pending revision. The law cannot be stretched in order to aid indiligent litigants.'

19. It may be mentioned that the attention of the learned Judge was not invited to the decision of the Supreme Court in Municipal Board's case (AIR 1965 SC 458) (supra) and also to the decision of the Allahabad High Court in Parshottamlal's case (AIR 1979 All 279) (supra), wherein, the relevant proviso to Section 64-A came up for construction and it appears that the learned Judge proceeded to decide the matter on the basis of the nature of the resolution passed by the RTA under Section 47(3). It is true that in connection with the questions of opening of the routes and in connection with revising the strength and scope of the existing buses and their trips, the RTA exercises its administrative function and the resolution is administrative in nature and no one has a right to be heard in the matter. In view of such a nature of the resolution or function of the RTA, the second question cannot be examined on that basis. More particularly, in a situation when the applications were invited by the RTA and applications have been receivedand the same have been published for consideration and objections against the applications have also been invited. The learned Judge observed that such persons are remotely aggrieved so, they cannot be said to he persons aggrieved under the third proviso. It is noteworthy that the applicants have incurred expenditure, have paid requisite amount of fees along with security and the applicants in the hope for the grant of permits may have made huge investment in keeping the vehicles ready. Such applicants, in my opinion, cannot be said to be remotely aggrieved persons. In case, the strength is reduced by the tribunal or increased strength Is set aside by the tribunal, such applicants are the persons who are directly prejudiced and affected by such an order of the tribunal. The language and phraseology of the first and third provisos are different. The expression 'prejudicial to any person' cannot be equated to any 'person aggrieved' in the first proviso. The 'aggrieved party' has the following connotation, as stated in Black's Law Dictionary (V Edition) : -

'Aggrieved Party-- One whose legal right is invaded by an act complained of, or whose pecuniary interest is directly affected by a decree or judgment. One whose right of property may be established or divested. The word 'aggrieved' refers to a substantial grievance, a denial of some personal or property right or the imposition upon a party of a burden or obligation.'

20. For the applicability of proviso 3rd to Section 64-A, the only requirement is that if any order is contrary to the interest of some one, then, he is required to be heard. The decreeof grievance may not he the same and the applicant whose application has been entertained by the RTA and has been published and is ripe for consideration is certainly possessed of an interest that his application should be considered and any order which may deprive him of the consideration of his application can only be said to be prejudicial to his interest. Proviso third to Section 64-A enjoins the tribunal not to pass any order prejudicial to any one without giving him an opportunity of hearing. The applicant, in my opinion, is really a person interested in the resolution of the RTA and any order quashing or revising the resolution of the RTAis certainly detrimental or prejudicial to his interest.

21. With due reference to the learned Judge, 1 am unable to agree with the view taken by the learned Judge in Prabhakar Adappa's case (1982(2) Kant LJ 323) (supra).

22. Mr. Munshi, learned counsel for the contesting respondent also invited my attention to a decision of this court in Badansingh v. STAT (Civil Writ Petn. No. 1136 of 1982, decided on November 11, 1982). In that case, the petitioner Badansingh challenged the orders of the RTA and the STAT refusing renewal of the permit and against that vacancy, one Prahladsingh had moved an application before the RTA for the grant of fresh non-temporary stage carriage permit. That application for the permit was duly published and objections were invited and the application was still pending consideration. He submitted an application to be impleaded as a party in the writ petition. His contention was that his application would stand automatically rejected and he would be prejudicially affected by setting aside of the orders of the RTA and STAT refusing renewal of the permit to Badansingh. Counsel for Prahladsingh placed reliance on Parshottamlal's case (AIR 1979 All 279) (supra). The learned Chief Justice held that the applicant is not a person aggrieved by the impugned orders in view of his failure to file representation containing objections against the petitioner's application for renewal of his permit. The learned Chief Justice also observed that applications for the grant of fresh permits on the route in question were incited by the RTA during the pendency of the appeal filed by the petitioner against the order of refusing renewal of the permit. Sec. 64(1)(a) of the Act provided a right to the petitioner Badansingh, and in exercise of that right, he preferred an appeal before the STAT. The RTA should have waited for the decision of the appeal, as the decision of the Tribunal is treated to be final under Sub-section (1) of Section 64. The learned Chief Justice, therefore, dismissed the application for impleading the applicant either as a necessary or proper party or as an intervenor. This case has no application to the facts of the present case. There was no question of considering the third proviso to Section 64-A before the learned Chief Justice. The applicants' locus standi in this case was only considered in the light of the petitioner Badansingh's right to prefer an appeal against t he order of refusing renewal of the permit by the RTA, so, in my opinion, this order is of no help to the respondent.

23. As regards the contention of the learned counsel for the respondent that suo motu applications would continue to pour in and as the revision petition could never he set for final hearing and besides that, how the STAT would he able to know as to whether any applications have been received hy the RTA for the grant of the permits, it may be stated that the STAT may ask the RTA to inform the applicants that the revision petition is fixed for hearing on a particular date and if the applicants wish to he heard, they may appear before the STAT. Before setting the revision petition for hearing, such a direction can be given by the STAT to RTA, so that, the applicants may be given notice of the pending revision petition and to appear before the STAT, if they so like. So far as the present matters are concerned, the question has been raised in respect of the applicants, whose applications have been entertained by the RTA and whose applications have been published for consideration and for inviting objections, so, there would be no difficulty in informing such applicants. Even for intending applicants, a public notice can be issued calling upon them to appear before the STAT in case, they wish to be heard on the quest ion of opening of the new route or on the question of revision of the strength and scope of the route. Such a public notice would meet such a situation as was directed in the municipal Board's case (AIR 1965 SC 458) (supra). Though, 1 need not enter into that question as the same does not fall for consideration in these petitions.

24. In the light of the foregoing discussion, I hold that the STAT failed to comply with the provision contained in the third proviso to Section 64A and the impugned order of the STAT dated July 25, 1983 deserves to be set aside.

25. On behalf of the petitioners, Mr. R.R. Vyas, further contended that Section 64A has been amended with effect from July 2, 1983 by the Motor Vehicles (Raj. Amendment) Act, 1982 (Act No. 8 of 1982). Section 3 of the amending Act is as under by which Section 64A was amended : --

'3. Amendment of Section 64-A, Central Act IV of 1939:- In Section 64A of the principal Act, after the words 'call for the record of any case' the expression '(not being a case relating to the limiting the number of stage carriages or the opening of a new route under Sub-section (3) of Section 47)' shall be inserted.'

26. By the aforesaid amendment, the casesrelating to the limiting the number of the stage carriages or opening of the new route under Sub-section (3) of Section 47 have been excluded from the revisional power of the STAT. He urged that the STAT even in a pending revision petition is not competent and has no power to pass any order in relation to these two types of cases over which the STAT has ceased to have the revisional power. Mr. Vyas submitted that the pendency of the revision petition has no relevance. It is the date of exercise of the power, which is relevant. In the present case, the STAT has exercised its revisional power after coming into force the Amendment Act and on the date of the order, the STAT had no power to hear the revision petition. In a case relating to the limiting the stage carriages, he pointed out that Section 64A does not create any vested right in any person unlike the right of appeal. Section 64A confers the power on the STAT calling for the record either suo motu or an application and it may consider whether the impugned order is improper or illegal. It is a discretionary power of the STAT to exercise its power under Section 64A. The provision of Section 64A is a provision relating to law of procedure and the law of procedure operates retrospectively and amended Section 64A will even be applicable to the pending revisions, so, he urged that on the date of the order, the STAT had no authority and jurisdiction to pass the impugned order as it was beyond its revisionul power.

27. Mr. Vyas, referred to a Supreme Court decision in Daji Saheb v. Shankar Rao Vithalrao Mane, AIR 1936 SC 29. That was a case relating to a right of appeal. The question which arose in that case was that after abolition of the Federal Court whether right of appeal which was available before the abolition of the Federal Court survived. Mr. Vyas relied on the observations : --

'If the Court to which an appeal lies is altogether abolished without any forum substituted in its place for the disposal of pending matters or for the lodgment of appeals the vested right perishes no doubt.'

The above observations are not of any help as the forum has not been abolished. Besides that, in that case Article 135 of the Constitution was interpreted in the manner so that, jurisdiction power may be exercised by the Supreme Court, which was exercised by the Federal Court.

28. Mr. Vyas also cited Union of India v. Sukumar Pyne, AIR 1966 SC 1206. Reliancewas placed on the following portion, contained in para 9 in which, it has been observed that : --

'It is well recognised that no person has a vested right in any course of procedure (vide Maxwell 11th Edition, p. 216), and we see no principle underlying Article 23 of the Constitution, which makes a right to any course of procedure a vested right. Mr. Chatterjee complains that there is no indication in the Amending Act that the new procedure would be retrospective and he further says that this affects his right of appeal under the Criminal Procedure Code. But if this is a matter of procedure, then it is not necessary that there should be a special provision to indicate that the new procedural law is retrospective.'

From the above observations, it would appear, that for the law relating to the procedure, it is not necessary that a provision should be made to indicate that the new procedure or law is retrospective. But the rule laid down is to be considered in the light of the facts of that case. If the above observations are considered in the light of the facts of the case, it would appear, that the party has no vested right to be tried by a particular court or a particular procedure. In that case, the Foreign Exchange Regulation Act. 1947 was amended by Amending Act No. 39 of 1957 and Section 23(1) was substituted by the Amending Act. Some foreign currency and foreign cheques were recovered from the respondent in 1954. By the Amending Act No. 39 of 1957 Section 23-C was added. The effect of the amendment was that the adjudication proceedings or criminal proceedings can be taken up in respect of a contravention mentioned in Section 23(1). While before the amendment only criminal proceedings before a court could be instituted. The High Court's view that the new amendment did not apply to contraventions, which took place before the Amending Act came into force was not correct. Their Lordships of the Supreme Court allowed the appeal and stated that the respondent has no vested right in the matter of procedure and adjudication proceedings have been rightly undertaken.

29. In Tikaram and Sons Ltd. v. Commr. of Sales Tax, U. P. AIR 1968 SC 1286, Section 11 of the Uttar Pradesh Sales Tax Act was amended by Act No. ft of 1954. The amendment of Section 11 enabled the Commissioner also to ask for reference. It was held that only existence of right under Section 10 is required for accrual ofright for making reference and this right exists regardless of when the application for revision was made. It was observed that by enabling the Commissioner also to ask for a reference tinder the amended provision of Section 11 does not alter any vested or substantive right of the assessee and presumption against a retrospective construction has no application to enactments affecting only the procedure and practice of courts.

30. I may now refer to some cases cited on behalf of the contesting respondent.

31. In Kashavlal Jethalal Shah v. Mohantal Bhagwandas, AIR 1968 SC 1336, Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947 was amended by Gujarat Act 18 of 1965. Revision under Section 115, C.P.C. against the appellate order under Section 29(1) was pending before the High Court prior to amendment of Section 29(2). The amended Act confers upon the High Court, a jurisdiction wider than the jurisdiction exercisable under Section 115, C.P.C. It was held that 'the amendedAct cannot apply to a pending revision application and the revision has to be decided in accordance with the limitation imposed under Section 115. C.P.C. It was observed that Section 29(2) as amended, was not intended to be retrospective in operation. In terms it confersjurisdiction upon the High Court to call for the record of a case for the purpose of satisfying itself that the decision in appeal was accordingto law, which the High Court did not possess before the date of the Amending Act. Theamending clause does not seek to explain any pre-existing legislation, which was ambiguous or defective. The power of the High Court to entertain a petition for exercising revisional jurisdiction was before the amendment derived from Section 115 of the Civil Procedure Code and the legislature has by Amending Act not attempted to explain the meaning of that provision.'

32. In Manujandra Dutt v. Purnadu Prosad Roy Choudhury, AIR 1967 SC 1419. Section 29 of the Calcutta Thika Tenancy Act (2 of 1948) was amended by Section 6 of the Calcutta Thika Tenancy Act (6 of 1953), Section 29 was deleted. A contention was raised that since it was only by reason of Section 29 that the suit had been transferred to the Controller the deletion of that section from the Act by Section 8 of the Amendment Act of 1963 had the effect of depriving the Controller of his jurisdiction totry the suit and, therefore, the judgment and order passed by him though confirmed by the learned subordinate Judge and the High Court Court was without jurisdiction and, therefore, bad. In our view, this contention has no force. And it was observed that 'though Section 28 wasdeleted by Amendment Act of 1953, the deletion would not deprive the Controller of his jurisdiction to try such proceedings pending before him at the date when the Amendment Act came into force. Though the Amendment Act did not contain any saving clause, under Section 6 of the Bengal General Clauses Act. 1899, the transfer of the suit having been lawfully made under Section 29 of the Act, its deletion would not have the effect of altering, the law applicable to the claim in the litigation.' Thereis nothing in Section 8 of the Amending Act of 1953 suggesting a different intention and, therefore, the deletion would not affect the previous operation of Section 5 of the Calcutta Thika Tenancy Act or the transfer of the suit to the Controller or anything duly done under Section 29. That being the correct position in law the High Court was right in holding that in spite of the deletion of Section 29 the Controller still had the jurisdiction to proceed with the said suit transferred to him.'

33. In the Workmen of Firestone Tyre and Rubber Co. of India (Pvt) Ltd. v. The Management (1973) 1 SCC 813 : (AIR 1973 SC 1227). Section 11A of the Industrial Disputes Act came into operation on December 15, 1971 and a question arose whether Section 11-A was applicable to the proceedings before the Tribunal on that date and if so, what powers were to be exercised by the Industrial Tribunal in respect of Industrial Disputes covered by Section 11A. It was held that Section 11A is not applicable to reference pending on that date. It will be applicable to all the subsequent references only.

34. It will not be out of place to refer to the provision of Section 6 of the General Clauses Act, 1897 dealing with the effect of repeal. Clause (c) of that section provides that where any Act repeals an earlier enactment, unless a different intention appears the repeal shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as stated in Clauses (c) and (d) and any such investigation, legalproceedings or remedy may be instituted or continued or enforced as if the Repealing Acthad not been passed. In the commentary on the General Clauses Act, 1897 by Swami Kannu (IInd Edition-1983) at page 226, after quoting the observations of the Supreme Court in the case of the State of Punjab v. Mohar Singh Pratapsing, AIR 1955 SC 84, in connection with the old Specific Relief Act. It is stated that-

'The repeal of the old Specific Relief Act will not affect any right, liability acquired or incurred under the repealed enactment or any legal proceedings or remedy in respect of such right or liability etc. and such legal proceeding may be continued as if the repealing Act has not been passed.

35. Section 6 of the General Clauses Act as much may not be attracted to the present case. However, from the authorities, the principle of interpretation that can be deduced is that the vested rights or substantive rights cannot be taken away by repeal of an enactment or provision or by an amendment of a provision unless such rights are taken away by some express provision or by necessary implication. As regards, the right of appeal, it is well settled that it is a vested right and such a right arises to a party, when the lis commences. The case may be true of right of review as in connection with a right of review as well, it has been laid down that a right to have review of a decision stands on the same footing and in connection with another remedy by way of reference, it can be said that a right to have a reference is also a vested or substantive right, but the same cannot be true in case of a remedy, by way of revision. Remedyby way of revision is not available to a party as of right but such a provision only confers a supervisory jurisdiction on the court or the tribunal as the case may be. An appeal isconsidered to be continuation of the suit or the proceeding and the matter is writ large before the appellate court or tribunal and the questions of fact and law can be gone into by the appellate court or the tribunal and the evidence can be re-appreciated. In some laws, even so far as the scope of the revisional power is concerned, it may be akin to appeal but the essential distinction between the remedy of appeal and revision is that in case of appeal, the right is vested in the litigant. But it is not so, in the case of revision. The power of revision is the power of the revising authority to call for the record. For distinction between the appeal and revision, reference may bemade to Smt. Kalwanl Kaur v. Hazarilal, ILR (1973) 2 Delhi 88, State of Kerala v. K.M. Charia Abdulla & Co., AIR 1965 SC 1585 and Hari Shanker v. Rao Girdharilal Chowdhury, AIR 1963 SC 698.

36. But still the question is, when the general rule with regard to procedural law is that it has retrospective operation and the provision relating to revision being a procedural provision, whether will necessarily have a retrospective effect on the pending revision petitions. If we look to the provisions of the Motor Vehicles (Rajasthan Amendment) Act, 1982 including Section 3, it would be clear that there is nothing in the Act, so as to indicate that the amending provision contained in Section 3 of the Amending Act will operate on the pending revision petitions. Apart from Section 3 of the Amending, Act, there is nothing in the Amending Act to show that the provision of Section 3 will have a retrospective effect. The legislature was well aware of the pending revisions before the STAT. If the legislature intended that the pending revision petitions must all fail because of the deprivation of the revisional power, it would have made a specific provision regarding pending revisions, but no such provision has been made relating to the pending revision petitions. Certain words have been inserted by Section 3 of the Amendment Act in Section 64-A, that insertion shall take effect from the date of coming into force of the Amendment Act and it is not provided in the amending Section 3 that inserted words shall always be deemed to have been inserted. Nor it can be considered to be the necessary intendment of the legislature. From the words 'shall be inserted' in the absence of any express provision or necessary implication, it cannot be taken that the amendment will have effect on the pending revision petitions. Although, it;is true that from the date of coming into forceof the Amendment Act, no revision petition can be entertained by the STAT in casesrelating to limiting the stage carriages or opening of the new route under Sub-section (3) ofSection 47. Unlike a right of appeal, review or reference, there is no such right of revisionand so, such a right of preferring revision petitions cannot be claimed by any person from the date of initiation of any proceeding under the Motor Vehicles Act. I, therefore, held that Section 3 of the Amendment Act has no retrospective operation and has onlyprospective operation and it does not affect the powers of the STAT to decide the pending revision petitions. The contention of Mr. R.R.Vyas, learned counsel for the petitioners, therefore fails.

37. Mr. R.R. Vyas, learned counsel for the petitioners next contended that Shri Satyanarain respondent No. 3 is not a person aggrieved because every existing operator by such increase of the scope will have more mileage. This contention, in my opinion, is devoid of any force. Every existing operator can feel aggrieved by an order under Section 47(3). Under Section 64-A, an application can be filed against the order and the term 'order' is wide, so, as to include the resolution of the RTA under Section 47(3). See Lakshmi Narain Agarwal v. State Transport Authority, AIR 1968 SC 410.

38. Om merits, Mr. R.R. Vyas, learned counsel for the petitioners submitted that the STAT did not take into consideration the guide-lines provided by the Full Bench of this court in Malik Ram v. Regional Transport Authority, AIR 1956 Raj 142 and also failed to take into consideration that there is always a presumption that after lapse of a few years, the scope increases as has been considered by their Lordships of the Supreme Court in Lakshmi Narain's case (supra). When the return trips were increased, simultaneously in the same ratio, increase should have been maintained by the STAT in the number of buses, so the order of the STAT deserves to be quashed so far it has reduced the number of buses. The learned counsel for the contesting respondent, on the other hand, submitted that the STAT has given good and cogent reasons for reducing the number of buses and maintaining the number of trips as resolved by the RTA also the buses would remain idle. It was urged that when the STAT has examined the matter on merits, it would not be proper for this Court to interfere with the order of the STAT in the exercise of the jurisdiction under Article 226 of the Constitution as has been laid down by the Supreme Court in Kishanchand Narsinghdas Bhatia v. State Transport Appellate Authority, AIR 1968 SC 1461, Sri Rama Vilas Service (P) Ltd. v. C. Chandrasekaran, AIR 1965 SC 107 was Abdul Rehman v. State Transport Appellate Tribunal AIR 1978 SC 949.

39. It would not be proper for me to enter into the merits of the order of the STAT as thematter is being remanded to the STAT. Expression of any opinion of this court may affect the consideration of the STAT on merits, as 1 refrain to express any opinion. It would be proper for the STAT to redecide the matter after giving an opportunity of hearing to all those, who are likely to he affected by the order in revision. In view of my finding on the first contention, the writ petitions deserve to be allowed.

40. Accordingly, the writ petitions allowed, the order of the STAT dated July 25, 1983 is set aside and it is directed that the STAT shall dispose of the revision petition No. 124 of 1984 filed by the respondent Satya Narain in accordance with law in the light of the observations made above.

41. The parties are left to bear their own costs.


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