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Shyam Sunder Azad Vs. Transport Appellate Tribunal, Rajasthan, Jaipur and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1229 of 1969
Judge
Reported inAIR1971Raj97
ActsConstitution of India - Article 226; Motor Vehicles Act, 1939 - Sections 47, 47(3), 48, 57 and 64
AppellantShyam Sunder Azad
RespondentTransport Appellate Tribunal, Rajasthan, Jaipur and ors.
Appellant Advocate R.R. Vyas, Adv.
Respondent Advocate J.P. Jain and; R.K. Rastogi, Advs. (for Nos. 1 and 2) and;
DispositionPetition allowed
Cases ReferredIn Ridge v. Baldwin
Excerpt:
- - the objectors filed an appeal before the appellate authority who allowed the appeal holding that the procedure adopted by the regional transport authority was not in accordance with law inasmuch as it had failed to determine the question of the need for the service on that route before entertaining the application for a stage carriage. the decisions referred to above, in our opinion clearly lay down that the r. 1330 of 1969, d/-21-10-1969 (raj). i have no good reason for taking a different view. in that event a party may be expected to avail of the alternative remedy of an appeal if the objection does not prevail before the regional transport authority, but in a case like the present one, where the very resolution of the regional transport authority shows that there was not only no.....orderkan singh, j.1. the subject-matter of the present writ petition is a resolution of the regional transport authority, jaipur dated 6-3-69 granting a non-temporary stage carriage permit to respondent no. 3 smt. shakuntla devi on bharatpur-govindgarh route as also the appellate order of the transport appellate tribunal dated 28-6-69 granting further extension to smt. shakuntla devi for obtaining the permit. the relevant facts are briefly these:--2. the petitioner is an operator on bharatpur-deeg-nagar route which is an 'a' class route, 35 miles in length. the route bharatpur-govindgarh over which permit was ordered to be granted to respondent no. 3 overlaps this route in part. it appears from the map placed on record, annexure p/1, that bharatpur is the common terminus of the two.....
Judgment:
ORDER

Kan Singh, J.

1. The subject-matter of the present writ petition is a resolution of the Regional Transport Authority, Jaipur dated 6-3-69 granting a non-temporary stage carriage permit to respondent No. 3 Smt. Shakuntla Devi on Bharatpur-Govindgarh route as also the appellate order of the Transport Appellate Tribunal dated 28-6-69 granting further extension to Smt. Shakuntla Devi for obtaining the permit. The relevant facts are briefly these:--

2. The petitioner is an operator on Bharatpur-Deeg-Nagar route which is an 'A' class route, 35 miles in length. The route Bharatpur-Govindgarh over which permit was ordered to be granted to respondent No. 3 overlaps this route in part. It appears from the map placed on record, Annexure P/1, that Bharatpur is the common terminus of the two routes. Between Bharatpur and Nagar which is at a distance of 35 miles, there are two important towns, Kumer and Deeg. This is the route on which the petitioner is plying his bus. From Nagar one comes to Jaluki which is at a distance of 10 miles from Nagar. Jaluki is a focal point where three roads meet. One road goas to Laxmangarh towards the south which is at a distance of 9 miles from Jaluki. The other road goes to Alwar which is at a distance of 23 miles. The third road goes to Govindgarh which is on the opposite direction to Laxmangarh. The distance between Jaluki and Govindgarh is 4 miles. This means that respondent No. 3 applied for the longer route upto Govindgarh which completely overlapped the petitioner's route Bharatpur-Deeg-Nagar.

I may read here the impugned resolution of the Regional Transport Authority, Jaipur:

'Item No. 9/13 Bharatpur-Govindgarh. Resol. No. 31

Smt. Shakuntla Devi--present by Shri M. K. Khanna, counsel. Objectors.

1. Shri H.C. Mangal, for R.S.R.T.C. Present.

2. Shri Fasihuddin, counsel for Alwar-Kekri amalgamated route operators-Present.

Heard the parties. This is a new route and 'A' Class in nature. The opening of this route will connect an important town of Alwar district namely Govindgarh with Bharatpur the district headquarter of Bharatpur District. The opening of the route will also provide facility to the travelling public of the villages falling enroute.

Thus on an experimental basis, one S. C. permit for three years with one return service is hereby granted to Smt. Shakuntla Devi.

The applicant will put up her vehicle of the prescribed model for the 'A' Class route within 30 days from today otherwise this grant shall stand cancelled automatically.

It is also decided that the scope on this route will be fixed after six months as by that time we will be able to know the exact position of the traffic potentiality.

Resolved accordingly.

Announced.'

It appears that Smt. Shakuntla Devi did not have the ready bus and was not in a position to give the registration number thereof within the period of 30 days allowed by the Regional Transport Authority. On 2-4-69 Smt. Shakuntla Devi put in an application before the Regional Transport Authority to grant her an extension of time for obtaining the vehicle. The Regional Transport Authority granted this extension for 15 days, but before the expiry of 15 days Smt, Shankuntla Devi lodged aa appeal before the Transport Appellate Tribunal making grievance of the short time allowed to her for putting in the vehicle. The appeal came to be heard and disposed of by the Transport Appellate Tribunal on 28-6-69. The Transport Appellate Tribunal accepted the appeal and it set aside that part of the resolution of the Regional Transport Authority, Jaipur dated 6-3-69 by which it was laid down that the grantee shall employ the vehicle of the prescribed model within 30 days, failing which the permit would automatically stand cancelled. The Transport Appellate Tribunal directed that the grantee shall be entitled to put in the vehicle within a period of 30 days from the date of its order failing which the grant shall stand automatically cancelled.

The petitioner submits that he was surprised to find that Smt. Shakuntla Devi had started plying her vehicle on the strength of the permit issued by the Secretary, Regional Transport Authority, Jaipur. He then made am enquiry and came to know that the permit had come to an end on 6-4-69. The petitioner further states that the application of Smt. Shakuntla Devi was published by the Regional Transport Authority for inviting objections in Rajasthan Gazette dated 13-7-67 and the petitioner had filed objections against that application by registered post and such objections were duly received by the office of the Regional Transport Authority. He further states that on the date of hearing, that is 6-3-69, he appeared before the Regional Transport Authority and pressed his objections, but the Regional Transport Authority did not consider the objections of the petitioner and in spite of that granted the permit to Smt. Shakuntla Devi.

3. In challenging the resolution of the Regional Transport Authority dated 6-3-69 the petitioner contends that the Regional Transport Authority had acted without jurisdiction as will be clear from the face of the record. It is pointed out that the route Bharatpur to Govindgarh was altogether a new route and before granting any permit on this route it was the duty of the Regional Transport Authority to fix the scope or limit for permits over this route under Section 47 (3) of the Motor Vehicles Act, 1939, hereinafter to be referred as the 'Act'. It is maintained that unless this is done as a preliminary to the consideration of the applications for grant of permits the Regional Transport Authority will be acting wholly without jurisdiction. It was next contended that inasmuch as the Regional Transport Authority had fixed a period of 30 days for putting in the vehicle and had laid down that in the event of the grantee not putting in the vehicle within the time allowed the grant shall automatically stand cancelled, the Regional Transport Authority could not have further extended the time.

As regards the order passed by the Transport Appellate Tribunal in appeal it was contended that the appeal was not competent as the imposition of the condition regarding the putting in of the vehicle within the time allowed and the grant coming to an end in the event of non-compliance of that condition was not covered by any of the clauses of Section 64 of the Act. In this connection it was pointed out that the issuing of the permit in accordance with Rule 86 of the Rajas-than Motor Vehicles Rules, 1951, hereinafter to be referred as the 'Rules', did not result in the imposition of any condition to the permit itself. It was submitted that whatever orders were passed incidental to the grant itself prior to the issuing of the permit were not tantamount to attaching the conditions to the permit itself, as the conditions mentioned in Section 48 of the Act did not contemplate any such condition being attached to the permit.

4. The writ petition has been opposed by Smt. Shakuntla Devi. It is denied by her that the Regional Transport Authority could not have extended the time for furnishing the registration number of the vehicle. In the alternative it is urged that the question of availing of the extension granted by the Regional Transport Authority was academic as, in fact, it was not availed of. It is maintained that the appeal before the Transport Appellate Tribunal was maintainable and the Transport Appellate Tribunal was entitled to extend the period for putting in the vehicle while accepting the appeal. It was denied that the petitioner had filed any objections against the respondent's application for grant of a permit. It was stated that the application of the petitioner was published on 6-4-67 and no objections were filed against that application. It was by mistake that the application was published for the second time in July, 1967 and, therefore, according to the respondent, it did not confer any fresh right on any person to file objections as the application of the respondent had been dealt with on the footing of the first publication and against that no objections had been filed.

In the circumstances it was submitted that the petitioner having not filed any objections against the application was not entitled to maintain the writ petition. It was urged that it was the duty of the petitioner to have filed the objections before the Regional Transport Authority and to have taken the objection which he is now urging before this Court that without first fixing the limit for permits under Section 47 (3) of the Act the Regional Transport Authority could not grant any permits., The respondent also denied that the petitioner had filed any objection by registered post when the respondent's application was published for the second time on 13-7-67, though by mistake. Lastly, it was urged that the petitioner should have availed of the remedies provided by the statute by filing an appeal before the Transport Appellate Tribunal against the grant of the permit itself and the writ petition should not be entertained also on the ground that it was a delayed one.

5. It will be clear from what I have narrated above that four questions fall for determination: (1) Whether the Regional Transport Authority could have granted the permit without first determining the scope or limit for permits under Section 47 (3) of the Act for this route? (2) Whether the writ petitioner had disentitled himself from seeking the remedy of a writ on account of his not availing the alternative remedy of an appeal under the statute and that by first filing the objections against the respondent's application? (3) Whether the appeal before the Transport Appellate Tribunal was maintainable? (4) Whether the writ petition should be dismissed on the ground of delay?

6. So far as the last ground is concerned it need not detain me. The order of the Transport Appellate Tribunal is dated 28-6-69 and the writ petition was filed in this Court on 5-9-69, that is, in less than three months. The petitioner was not a party to the appeal and even the Transport Appellate Tribunal had granted 30 days time to the respondent for putting in the vehicle. In the nature of things the petitioner could have come to know of some order in favour of respondent No. 3 only when she would have started plying the bus. The petitioner has stated in the writ petition that he came to know of this when the respondent started plying the bus in August. In these circumstances I was not at all impressed by the plea of delay.

7. The perusal of the order under challenge shows that the route on which permit was ordered to be granted to respondent No. 3 was a new route. It also shows that the Regional Transport Authority deferred the question of consideration of the scope on this route for a period of six months so that by that time it would be able to know the exact position of the traffic potentiality. It is also clear from the order that it was only on an experimental basis that a permit for a period of three years with one return service was ordered to be granted to Smt. Shakuntla Devi. Learned counsel for the parties have debated the question whether this order was without jurisdiction. Learned counsel for the petitioner contended that the order on the face of it shows that there was patent lack of jurisdiction in the Regional Transport Authority to grant the permit as it had refused to first fix the limit of permits under Section 47 (3) of the Act.

Reliance is placed on two recent decisions of their Lordships of the Supreme Court: R. Obliswami Naidu v. Additional State Transport Appellate Tribunal Madras, Civil Appeal No- 1426 of 1968,, D/- 17-2-1969 = (reported in AIR 1969 SC 1130); Jeewan Nath Wahal & Co. v. Sheikh Mahfooz Jan, Civil Appeal No. 1278 of 1969, D/- 8-9-1969 = (reported in AIR 1970 SC 1704). Relying on these two pronouncements as also on certain observations made by me in some cases learned counsel for the petitioner argues that the Regional Transport Authority had acted wholly without jurisdiction. This is contested by learned counsel for the respondent. Learned counsel for the respondent submits that there was no inherent lack of jurisdiction or patent lack of jurisdiction in the Regional Transport Authority though it may be taken on the basis of the cited cases that the Regional Transport Authority had committed an illegality or material irregularity in dealing with an application for grant of a permit without first fixing the scope. Learned counsel maintains that it was not decided by their Lordships in so many words that the fixation of a limit under Section 47 (3) for the permits to be granted was a condition precedent to the exercise of Regional Transport Authority's jurisdiction in considering the applications for grant of a permit. According to learned counsel the Regional Transport Authority was acting within its jurisdiction in this regard.

8. I may first refer to R. Obliswami Naidu's case, (AIR 1969 SC 1130). In that case the scope of Section 47 (3) of the Act came up for consideration. The appellant in that case had applied for a permit to ply a stage carriage on a certain route which was entirely a new route in the sense that before that no stage carriage had been plying on that route. The application was published by the Regional Transport Authority under Section 57 (3) of the Act for inviting objections. The respondents in the appeal had filed objections contending that there was no need to grant a stage carriage permit over that route. The Regional Transport Authority overruled the objection and granted the permit as prayed for. The objectors filed an appeal before the Appellate Authority who allowed the appeal holding that the procedure adopted by the Regional Transport Authority was not in accordance with law inasmuch as it had failed to determine the question of the need for the service on that route before entertaining the application for a stage carriage. The Appellate Authority held that procedure adopted by the Regional Transport Authority was in contravention of Section 47 (3) of the Act. The grantee challenged this decision of the Appellate Authority before the High Court of Madras who dismissed the writ petition filed by him- It was in these circumstances that the matter was taken to the Supreme Court. Their Lordships set out Section 47 and then observed as follows;--

'Sub-section (3) of Section 47 of the Act requires the Regional Transport Authority to limit the number of stage carriage permits that may be granted in a route having regard to the matters mentioned in Sub-section (1) of that section. The question for determination is whether the determination as to the number of stage carriages required on a route should be done at a stage anterior to that of entertaining applications for stage carriage permits or that it could be done at the time it considers applications made by operators for stage carriage permits in that route. The R. T. A. has proceeded on the basis that that question can be decided while considering the applications made to it for permits by operators whereas the Appellate Tribunal and the High Court have taken a contrary view.

Sub-section (3) of the Act if read by itself does not throw any light on the controversy before us but if Ss. 47 and 57 of the Act are read together it appears to us to be clear that the view taken by the Appellate Tribunal and the High Court is the correct view. If contrary view is taken it will throw open the door for manipulations and nepotism. There may be possibility of the personality of the applicant influencing the decision of the R. T. A. on the question of need for a stage carriage permit in the route and thereby public interest which should be the main consideration while taking a decision under Section 47 (3) may suffer.'

After examining the relevant provisions of the Act and the purpose behind sections 47 and 57 their Lordships observed that they were convinced that before granting a stage carriage permit two independent steps have to be taken. Firstly, there should be a determination by the Regional Transport Authority under section 47 (3) of the number of stage carriges for which stage carriage permits may be granted on that route and thereafter applications for stage carriage permits on that route should be entertained. According to their Lordships, the Regional Transport Authority was not competent to grant stage carriage permit for more carriages than fixed under Section 47 (3), Their Lordships added that the view that their Lordships were taking was in accord with an earlier case of their Lordships in M/s. Jaya Ram Motor Service V. S. Rajrathinam, Civil Appeal No. 95 of 1965 (SC). In that case it was observed that the scheme of Section 47 was that when a person makes an application tinder Sections 45 and 46 the authority has first to consider it under Section 47 (1) in the light of the matters set out therein and also the representations, if any, made by the persons mentioned therein. The authority then fixes under Section 47 (3) the number of stage carriages for which permits may be granted in the region or on any specified route within such region. It was further observed that having fixed the limit the authority publishes under Section 57 (3) the application with a notice of the date before which representations in connection therewith may be submitted and the date on which such application and representations would be considered. Their Lordships finally observed that Section 47 envisages two stages of the inquiry; (i) the fixing of the number of permit under Section 47 (3); and (ii) about the consideration thereafter of the application for grant of a permit and the representations, if any, by the persons mentioned in Section 47 (1). Once an authority has fixed the number of vehicles to be operated in the region or the area or the particular route and the number of permits to be granted therefor, the stage of inquiry under Section 47 (3) was over; and the next thing that the authority had to consider was whether the grant of a permit would be within such limit or not. If it does not exceed the limit the authority has to consider the application and the representation, if any, in connection, therewith and to grant or refuse to grant the permit under Section 48 (1). Their Lordships also relied on Abdul Mateen v. Ram Kailash, AIR 1963 SC 64. In the lastmentioned case it was observed that at the first stage of fixing the limit under Section 47 (3) of the Act the Regional Transport Authority was passing a general order and this would not be a matter for consideration when the Regional Transport Authority would be dealing with the actual grant of permits when it would be choosing between various applicants. At that stage, according to their Lordships, the general order passed under Section 47 (3) cannot be reconsidered as any order under Section 48 was to be subject to the provisions of Section 47 which included Sub-section (3) of Section 47.

9. In Jeewan Nath's case, (AIR 1970 SC 1704), the earlier cases were reviewed and it was held that the Regional Transport Authority has first to decide the necessity of the new route and to pass a general order fixing the limit for permits under Section 47 (3) of the Act. It is thereafter that it can consider the applications for permits. It was reiterated in this case that when Sections 47 and 57' were read together it became clear that the Regional Transport Authority had first to arrive at a decision whether there was the necessity for the new route and it has then to decide under Section 48 whether permit should be granted or not. The decision for opening the new route or fixing the limit has to be reached before the consideration of the individual applications as to who amongst the applicants should be granted the permits. I may reproduce the relevant observations:

'The decisions referred to above, in our opinion clearly lay down that the R. T. A. has first to make 'a general order' as stated in Abdul Mateen's case, AIR 1963 SC 64 (supra), under Section 47 (3) as to the number of permits , necessary for a new route and he cannot exceed that limit while he is at the next stage when he considers under Section 48 read with Section 57 as to who amongst the applicants should be granted the permit or permits. Such a 'general order' limiting the number of permits presupposes, that he has come to a decision that the new route either proposed by him or by an applicant or applicants is necessary in public interest. Obviously, he does not have to decide the number of permits necessary for such a new route unless he first decides that the new route should be opened. If the order as to the number of permits is a 'general order' passed under Section 47 (3), in respect of which the individual applicants are not concerned with and is anterior to the stage under Section 48 when applications of the individual operators are taken into consideration, and therefore, not appealable under Section 64 (a), it must follow a fortiori that the decision as to whether the new route is necessary or not is equally a 'general order' arrived at either earlier or contemporaneously with the decision as to the number of permits, If the latter order is not appealable, it cannot be that the former, i.e. the decision whether the new route is necessary or not, is not an equally 'general order' with which individual applicants are not concerned, and can appeal against it under Section 64 (a).'

10. Now, according to learned counsel for the respondent though two Independent steps have to be taken namely, for fixing the limit for permits under Section 47 (3) of the Act and the next for deciding the applications for grant of permits, according to him, the first step is not a pre-condition for the taking of the second step and even though where the Regional Transport Authority had granted a permit without first fixing the limit for permits it may be committing an illegality nevertheless the Regional Transport Authority cannot be said to have acted without jurisdiction. Having considered this submission I find myself wholly unable to accept the same. The necessary result of the entire discussion of the question by their Lordships in the above two cases is that where no limit for permits over the new route has been fixed by the Regional Transport Authority in accordance with Section 47 (3) of the Act, the Regional Transport Authority will not be competent to consider or grant any applications for permits. In other words, the Regional Transport Authority will be completely lacking the jurisdiction to proceed further in the matter. Section 48 is subject to the provisions of Section 47 of the Act. Though in Sub-section (3) of Section 47 the word 'may' has been used, their Lordships have taken it to be a mandatory provision. A mandatory provision contains the implied prohibition not to act otherwise. If a certain limit has been fixed by the Regional Transport Authority under Section 47 (3) of the Act, the Regional Transport Authority cannot grant permits more than the number fixed. As a logical step it follows that if no limit has been fixed no permit can be granted. If, what is contained in Section 47 (3) is the limit X then the number of permits under Section 48 cannot exceed that limit X. If X is zero then the number of the permits to be granted under Section 48 cannot exceed zero, that is, no permit can be granted at all where the limit has not been fixed under Section 47 (3) of the Act.

I may make it clear that here the discussion is confined to the question of granting non-temporary stage carriage permits and I am not expressing any opinion about the grant of temporary-permits over any route. In my view, therefore, on the basis of these two authorities it is not now open to question that a Regional Transport Authority cannot grant nonteroporary stage carriage permits over a new route without fixing the limit for permits thereof under Section 47 (3) of the Act. I have been taking this view since the first cited case of their Lordships was brought to my notice. I may refer to Ichha Shanker v. Regional Transport Authority, Udaipur, Civil Writ Peta. No. 471 of 1967, D/- 19-9-1969 (Raj); Mohammad Shafi v. Regional Transport Authority, Civil Writ Petn, No. 677 of 1967, D/- 2-8-1969 (Raj); Haricharan v. Regional Transport Authority, Civil Writ Petit. No. 1330 of 1969, D/-21-10-1969 (Raj). I have no good reason for taking a different view. To my mind there was a patent lack of jurisdiction in the Regional Transport Authority. One can conceive of cases where the question of fixation of limit may be raised as a question of fact. In that event it may be necessary for a party to file a proper objection before the Regional Transport Authority so that the latter may be able to decide as a question of fact whether there was already a limit fixed for the route. In that event a party may be expected to avail of the alternative remedy of an appeal if the objection does not prevail before the Regional Transport Authority, but in a case like the present one, where the very resolution of the Regional Transport Authority shows that there was not only no limit fixed for the route, but the Regional Transport Authority was deferring the question for another six months so that in the meantime it could ascertain the traffic potentiality it leaves no doubt whatsoever in one's mind that the Regional Transport Authority had disregarded the requirement of a proper limit under Section 47 (3) of the Act before it could consider the applications for grant of a permit. Lack of jurisdiction is writ large in the impugned resolution of the Regional Transport Authority and one need make no efforts to discover that. There is no dispute about any fact regarding the lack of jurisdiction in the Regional Transport Authority in the matter.

11. In Sheo Onkar v. Regional Transport Authority, Bikaner, Civil Writ Petn. No. 480 of 1966, D/- 6-12-1966 (Raj), Jagat Narayan J. had decided that where the grant of a permit by the Regional Transport Authority was without jurisdiction the writ petition could be entertained even though the party had not resorted to the statutory remedies. The case of Sharma Roadways v. Sohanlal Soni, 1965 Raj LW 340, was considered and it was held that where there was complete lack of jurisdiction in the authority the party may be permitted to invoke the extraordinary jurisdiction of this Court even though he has not availed of the alternative remedy. The case of Sharma Roadways, 1965 Raj LW 340, on which reliance is placed by learned counsel for the respondent before me and to which I was a party did not relate to a case where there was patent lack of jurisdiction in the body. Learned counsel for the respondent himself cited two cases of this Court before me--Dholpur Co-operative Transport and Multipurpose Union Ltd. v. Appellate Authority, AIR 1953 Raj 193 and Badridass Kanhaiyalal v. Appellate Tribunal S. T. A., ILR (1959) 9 Raj 869 = (AIR 1960 Raj 105), where a writ petition had been entertained in spite of the alternative remedy under the statute being not availed of.

Learned counsel, however, took the stand that those cases were of the kind when the authority was not properly constituted according to law. It is true in a case where the authority who is dealing with the matter is not properly constituted the product of its deliberations will altogether be null and void. But, even in cases where a condition requisite for the exercise of certain functions has not been performed, performance of those functions will be wholly without jurisdiction. I, however, do not mean to equate the two kinds of errors of jurisdiction, but all the same in the ultimate analysis the body will be said to have acted without jurisdiction. Shri Jain, learned counsel for the respondent placed reliance on Hazarimal v. Regional Transport Authority, Jaipur, 1956 Raj LW 359 and submitted that where a Regional Transport Authority had not followed the procedure under Section 57 (3) of the Act in giving a countersignature it would not make the countersignature completely void. Its only effect would be that it would give a right to those who were interested and could appeal under Section 64 to go to the Appellate Authority and ask it to cancel the countersignature on the ground that the procedure under Section 57 had not been followed and it would be wrong to hold that where an authority grants a permit or makes a countersignature without going through the procedure provided by law, the permit or the countersignature is of no avail to the person to whom the permit has been granted or on whose permit the countersignature has been made. As pointed out by their Lordships of the Privy Council in Durayappah v. Fernando, 1967-2 All ER 152, the concept as to when a certain order is void or merely voidable is imprecise.

In that case the Minister of the Council of Ceylon had dissolved the Municipal Council of Jaffna, but in doing so the principle of audi alteram partem was disregarded. Their Lordships pointed out that the order would have been declared to be void ab initio in an action by the Municipal Council yet it was only voidable at the election of the Council and was not a nullity. Their Lordships further pointed out the example of a person who is dismissed wrongfully without following proper procedure and they held that this would again be an order which may be voidable and not void so that it could be declared as void at the instance of any other person. Their Lordships had cited a number of examples based on decided cases. Referring to (1963) 2 All ER 66, their Lordships observed that in that case failure to comply with a rule was held to make the purported subsequent proceedings a nullity. Likewise, In Ridge v. Baldwin, 1963-2 All ER 66, the decision of the Watch Committee was taken to be a nullity.

12. In the present case I have no doubt that where there is no general order as required by Section 47 (3) of the Act fixing the limit for grant of permits the Regional Transport Authority will be completely wanting in jurisdiction to consider the applications for grant of permits. According to this decision there Is a distinction between a void order and an order which is a nullity. The order for granting permit may not be a nullity in the sense that altogether a third party can question its validity. But, I have no manner of doubt that a person who is providing transport service on a substantial portion of the newly opened route is not a person altogether uninterested. It has to be borne in mind that if there is a general order fixing the limit a party may have his remedy before the State Transport Authority or in an appropriate case before this Court by a writ petition. But, where there is no limit fixed at all then the party, has no occasion to question any order of a general nature. A party may not at all be interested in the question whether the permit should be given to X, Y or Z. He may be interested only in the question that no new route should be opened or if any new route is opened a certain number of permits be fixed under Section 47 (3) of the Act and no more. In that event the party may not have the necessity of filing any objection under Section 57 (3) of the Act apart from questioning the order under Section 47 (3) of the Act. It is clear from their Lordships' two decisions that there has to be a general order under Section 47 (3) of the Act before any application for grant of a permit could be considered. Their Lordships had used the word 'entertained' so far as the applications for grant of permits were concerned, but reading the whole judgment with all due deference I felt that, in my humble opinion, their Lordships only intended to lay down that the Regional Transport Authority is required first to fix the limit before it could consider the applications for grant of permits. Where no limit has been fixed, no permit can be granted by the Regional Transport Authority and the party may not be concerned whether the permit should or should not be granted to A or B, but It is directing its attention against the very opening of the route by granting a permit or granting it without first fixing the limit under Section 47 (3) of the Act. In such a case, therefore, the order of the Regional Transport Authority can be declared to be void ab initio at the instance of a party who is thus Interested, because he is providing transport service over a portion of the route. In Hazarimal's case, 1956 Raj LW 359,, the position was that proper procedure had not been followed, but it was not held that there was patent lack of jurisdiction in the Regional Transport Authority. Thus, that case is, In my humble opinion,, distinguishable from the present case. I am, therefore, satisfied that the writ petition should not be thrown off merely because the petitioner had not filed any objection against the application of the respondent when it was published for the first time or that he had not availed of the statutory remedy of an appeal by seeking the decision on the point in the first instance.

13. I may next turn to the question about the maintainability of the respondent's appeal before the Transport Appellate Tribunal. Section 64 of the Act, inter alia lays down that any person (a) aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or (b) aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, may within the prescribed tune and in the prescribed manner appeal to the prescribed authority. Rule 86 of the Rules lays down that save in the case of a temporary permit, if the registration mark of the vehicle is to be noted in the permit and the applicant is not at the date of application in possession of the vehicle duly registered, the applicant shall within one month of the sanction of the application by the Regional Transport Authority, or such longer period as the authority may specify, produce the certificate of registration of the vehicle before that authority in order that particulars of that registration mark may be entered in the permit. It Is further laid down that no permit shall be issued until the registration mark of the vehicle to which it relates has. If the form of permit so requires, been entered therein and in the event of any applicant failing to produce the certificate of registration within the prescribed period the Regional Transport Authority may revoke its sanction of the application. The question falling for consideration is whether an order laying down that in the event of the permit holder not furnishing the registration number of the vehicle within the time the grant shall stand cancelled comes under any of the clauses of Section 64. Clauses (a) and (b) alone are relied on, because the other clauses are not applicable and I have not referred to them.

Learned counsel for the respondent submitted that the condition was one attached to the permit and therefore, the Regional Transport Authority's order fell under Clause (a). In the alternative It ia submitted that the automatic revocation of the grant was such revocation of thepermit as Is contemplated by Clause (b). In this connection it was pointed out that the order of granting the permit and the one for revocation thereof in the event of the non-fulfilment of the condition are rolled in one and for seeing the appealability of the order the effective result namely, the revocation of the permit which really means the revocation of the grant of permit should be looked into. So far as Clause (a) is concerned it speaks of any condition attached to a permit granted to him. Section 48 lays down the conditions that may be attached to a permit. The order of the kind passed by the Regional Transport Authority does not cover any of the clauses of Section 48. The residuary clause of Section 48 is Clause (3) (xxiii) 'any other conditions which may be prescribed'. Here the word 'prescribed' means prescribed by the rules. Now no such condition has been prescribed so far as the permit itself is concerned. It is, in my view a condition relating to the issuing a permit or if at all we can just call it a condition for the coming into effective existence of the grant of permit; in other words, a condition to be fulfilled before a permit can actually be issued in pursuance of the resolution of the Regional Transport Authority. If a certain person Ss asked to comply with a certain order before the permit can be actually issued to him, such as, paying of any fee or giving a certain particulars to be written down in the permit, then it cannot be said that that is a condition attached to the permit. The rule itself contemplates that if the form of the permit so requires the Regional Transport Authority shall not issue the permit, unless the registration number of the vehicle is mentioned therein. The rule contains a prohibition against the Regional Transport Authority issuing the permit. One month's time is allowed to an applicant who is not possessed of the vehicle when he applies for the grant of a permit. If he fails to comply with the condition about the furnishing of the registration number of the vehicle then the Regional Transport Authority can revoke the grant of the permit itself and thereafter the grant does not subsist. A distinction has been made between the permit and the grant of a permit in Rule 86. Section 64 (a) will embrace the refusal to grant a permit by the Regional Transport Authority. It does not embrace the contingency when the Regional Transport Authority has granted the permit alright, but for some reason the party to whom the grant is made is not able to furnish the particulars about the registration number of the vehicle so that in that event the sanction of the application is revoked. Revocation of the sanction of an application ascontemplated by Rule 86 is not the same thing as a revocation of the permit as contemplated by Clause (b) of Section 64. Here the word 'revocation' implies a positive act of the Regional Transport Authority after the permit has come into existence. I may add that Section 64 and Section 64-A of the Act are complementary and as between themselves they exhaust the procedure for challenging the orders of the Regional Transport Authority before superior authorities. When an order is not covered by Section 64 it would be covered by Section 64-A of the Act provided the other conditions laid down therein are satisfied. An aggrieved party would then be able to get an appropriate relief, but as the language of Section 64 (clauses (a) and (b)) stands their scope cannot be enlarged so as to embrace the revocation of the sanction of an application, under Rule 86 of the Rules.

I may, however, make a 'reservation here that it is conceivable that if an impossible condition is imposed by a Regional Transport Authority and then on the non-fulfilment of such a condition if the sanction is cancelled it may amount to a refusal of the application within the meaning of Clause (a) of Section 64 of the Act. For example, if a Regional Transport Authority were to put down a condition that an operator will provide an air conditioned bus with certain appendages and will furnish its registration number before the permit would be issued to him then unless the applicant had himself already agreed to provide such a bus he may be able to challenge the order making it out as a case of refusal of the application for all practical purposes. In the present case, however, the rule provides for one month for furnishing the registration number of the vehicle. I do not wish to express any opinion on the question in the present case whether where the Regional Transport Authority is not granting any longer time than laid down by the rule itself it can lay down in advance that on failure to put the vehicle within the time allowed by the rules the grant shall stand automatically cancelled. The position might be different where in exercise of its discretion the Regional Transport Authority allows the time longer than that allowed by the rule and in exercise of its discretion it imposes a condition that in the event of the grantee not furnishing the registration number within the time allowed the grant shall stand cancelled.

14. In the result, the writ petition Is allowed and the order of the Transport Appellate Tribunal Annexure P/8 is set aside and so also the permit Annexure P/10. The respondent No. 3 is restrained from availing of the permit. The parties are left to bear their own costs.


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