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Gendmal Vs. State Transport Appellate Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1017 of 1979
Judge
Reported inAIR1980Raj107; 1979()WLN695
ActsMotor Vehicles Act, 1939 - Sections 48 and 64A; Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 9; Constitution of India - Article 226; Administrative Law
AppellantGendmal
RespondentState Transport Appellate Tribunal and ors.
Appellant Advocate R.R. Vyas, Adv.
Respondent Advocate Rajesh Balia, Deputy Govt. Adv. and; R.N. Munshi, Adv.
DispositionPetition dismissed
Cases ReferredIn Abdul Rehman v. State Transport Appellate Tribunal
Excerpt:
.....of a writ of certiorari for quashing the order of stat changing the timing of the petitioner's route partabgarh-banswara as well as that of partabgarh-kesariaji route. 4, accepting the revisions is bad as it could not be accepted in his absence. --in dealing with applications for writs of certiorari under article 226 of the constitution the high court does not exercise the jurisdiction of an appellate court and the findings or conclusions on questions of fact could hardly be re-examined or disturbed by it under article 226 of the constitution unless the well-recognised tests in that behalf were satisfied'.fixing of time-table is an administrative act and as, after taking into consideration the relevant circumstances, the stat modified the timings, it cannot be said that it is..........were heard on october 18, 1978 and final timings were fixed in respect of the petitioner's route partabgarh-banswara via dhariawad and the route of the non-petitioners nos. 4 and 5 kesariaji-partabgarh. the order dated january 8, 1979 of the secretary, r. t. a. fixing timings has been filed by the petitioner marked as anx. p. 2. as there is only one service of partabgarh-banswara via dhariawad route, the petitioner was required to start from partabgarh at 1.00 p.m. instead of 2.00 p.m. and reach banswara by 7.00 p.m. so also, the operators of partabgarh-kesariaji route were required to perform two return services over the route. they were required to start first service from partabgarh at 1.00 p.m. and the second at 2.00 p.m., thereby keeping the difference of one hour for.....
Judgment:
ORDER

S.K. Mal Lodha, J.

1. The petitioner is an existing operator on Partabgarh-Banswara via Dhariawad route and holds one non-temporary stage carriage permit renewed up to September 27, 1981. Non-petitioners Nos. 4 and 5 are also operators of Partabagrh-Kesariaji route via Dhariawad and non-petitioner No. 6 is the existing operator of Dhariawad-Banswara route. The case of the petitioner is that route of non-petitioners Nos. 4 and 5 overlaps the petitioner's route from Partabgarh to Dhariawad (distance is of nearly 28 miles). Three stage carriage permits are said to be in existence performing three return services for the same. Each one of the three operators of Partabgarh-Kesariaji route avails one return service per day. The petitioner has stated that formerly, on Partabgarh-Kesariaji route, quota fixed was three stage carriages and one return service only. On September 21, 1978, the three operators of Partabgarh-Kesariaji route via Dhariawad, Dahudar, Kalyanpura etc. submitted an application to the Secretary, Regional Transport Authority, Udaipur (for short, 'the RTA' hereafter) for fixing timings for the additional services. Provisional timings were given on September 27, 1978 and according to these timings, non-petitioners Nos. 4 and 5 started plying the additional services. The petitioner and other affected operators lodged objections with regard to the time-table fixed by the R. T. A. The objections were heard on October 18, 1978 and final timings were fixed in respect of the petitioner's route Partabgarh-Banswara via Dhariawad and the route of the non-petitioners Nos. 4 and 5 Kesariaji-Partabgarh. The order dated January 8, 1979 of the Secretary, R. T. A. fixing timings has been filed by the petitioner marked as Anx. P. 2. As there is only one service of Partabgarh-Banswara via Dhariawad route, the petitioner was required to start from Partabgarh at 1.00 p.m. instead of 2.00 p.m. and reach Banswara by 7.00 p.m. So also, the operators of Partabgarh-Kesariaji route were required to perform two return services over the route. They were required to start first service from Partabgarh at 1.00 p.m. and the second at 2.00 p.m., thereby keeping the difference of one hour for providing the services from Partabgarh to Banswara and Partabgarh to Kesariaji. In compliance with the order Anx. P. 2 dated January 8, 1979, the Secretary, R. T. A., issued an order to the petitioner on the same date informing him that he is required to perform the services on his route subject to objections, if any. The petitioner has filed the copy of the order of the Secretary, R. T. A., dated January 8, 1979 issued in his favour marked as Anx. P. 3. Revision No. STAT-8/79 was filed by the non-petitioners Nos. 4 and 5 and Revision No. STAT 32 of 1979 was filed by non-petitioner No. 6 against the order dated January 8, 1979. The State Transport Appellate Tribunal (for short, 'the STAT' hereafter) after hearing the parties, by its order Anx. P. 4 dated April 9, 1979, accepted both the revisions and modified the timings as under, --

Partabgarh BanswaraPartabgarbDeparture9.00 p m.DhariawadArrival4.01 p.m.Departure4.1-5 p.m.BunwaraArrival7.00 pm.Partabgarh KesariajiPartabgarbDeparture1300 hrs.DbariawadArrival1445 hrs.Departure1800 hrs.DhnderArrival1730 hrs.Departure1745 hrs.KesariajiArrival1945 hrs.

Being aggrieved by the order Anx, P. 4 dated April 9, 1979, the petitioner has filed this petition under Articles 226 and 227 of the Constitution of India and has prayed that a writ of certiorari may be issued for quashing it. He has further prayed that the order Anx. P. 2 dated January 8, 1979 issued by the Secretary, RTA, may be restored.

2. On July 20, 1979, show cause notice for admission was ordered to be issued.

On behalf of non-petitioners Nos. 4 to 6, a joint reply to the show cause notice was filed on August 3, 1979 opposing the writ petition. Along with the reply, photostat copies of Anx. R. 1 dated October 28, 1978, Annexure R. 2 dated February 5, 1979 and a rough sketch Annexure R. 3 of the route were filed. On August 9, 1979 learned counsel for non-petitioners Nos. 4 to 6 filed an additional affidavit along with attested copy of the resolution of the RTA dated March 28, 1974.

3. I have heard Mr. R. R. Vyas, learned counsel for the petitioner; Mr. Rajesh Balia, Deputy Government Advocate and Mr. R. N. Munshi for non-petitioners Nos. 4 to 6. Learned counsel for the parties stated that the writ petition may be finally disposed of.

4. Mr. Munshi raised a preliminary objection that as necessary (party) Dilip Kumar, was not impleaded, the writ petition suffers from a defect of his nonjoinder. He substantiated his preliminary objection by stating that all the three permits were originally held by Kanmal Kothari, Dilip Kumar and Ram Bux driver. Kanmal Kothari transferred the permit with the permission of the RTA in the name of non-petitioner No. 4 Kanhaiyalal. Rambux driver also transferred his permit with the permission of the RTA to non-petitioner No. 5. The third permit originally held in the name of Dilip Kumar Dosi still stood in his name and that non-petitioners Nos. 4 and 5, along with Dilip Kumar Dosi are providing two return services by rotation on Partabgarh-Kesariaji route. In these circumstances, Mr. Munshi submitted, that as Dilip Kumar Dosi has not been impleaded, the writ petition is not maintainable. The petitioner has prayed for issuing of a writ of certiorari for quashing the order of STAT changing the timing of the petitioner's route Partabgarh-Banswara as well as that of Partabgarh-Kesariaji route. Revisions Nos. STAT dated January 8, 1979 and 32/79 were disposed of by the impugned order Anx. P. 4. Dilip Kumar Dosi was not a party to the aforesaid revisions. It was at the instance of non-petitioners Nos. 4, 5 and 6 who preferred revisions before the STAT that timings were changed. Non-petitioners Nos. 4, 5 and 6 have already been impleaded as parties to the writ petition. Learned counsel could not satisfy me that Dilip Kumar Dosi is a necessary (party) to the writ petition. The preliminary objection is, therefore, overruled.

5. Mr. R. R. Vyas, appearing for the petitioner contended that the Secretary, RTA, whose order Anx. P2 dated January 8. 1979, was challenged in the aforesaid two revisions was not impleaded as a non-petitioner in the revision and, therefore, the impugned order Anx. P. 4, accepting the revisions is bad as it could not be accepted in his absence. Section 44(5) of the Motor Vehicles Act (No. IV of 1939) ('the Act' hereafter), amongst others, provides that any RTA, if authorised in this behalf by rules made under Section 68, may delegate such of its powers and functions to such authority or person and subject to such restrictions, limitations and conditions as may be prescribed by the said rules. Rule 78 (i) (I) (d) of the Rajasthan Motor Vehicles Rules, 1951, (for short, 'the Rules'), amongst others, provides that Regional Transport Authority, by general or special resolution, delegate, subject to such conditions and restrictions, as it may think proper, power to regulate the time table of stage carriages under Section 43 (3) (iii) and (iv) of the Act to its Secretary. By resolution No. 1, Item-Special, dated March 28, 1974, the RTA delegated its power to its Secretary under Section 44 (5) of the Act read with Rule 78 of the Rules. In this resolution, item No. 6 is as under:--

'6. Fixing of provisional and regular timings of stage carriage permit after hearing the concerning parties.'

The Secretary, RTA, in exercise of the delegated power, issued the order dated January 8, 1979, in respect of the timings on the petitioner's route. Being aggrieved by the timings granted to the petitioner, non-petitioners Nos. 4, 5 and 6 preferred two separate revisions as aforesaid and impleaded RTA, Udaipur, as one of the non-petitioners in each of the two revisions. It was hot necessary to implead the Secretary, RTA, as a party because the RTA had already been impleaded as non-petitioner. The order passed by the Secretary, RTA, was in his capacity as a delegate of the RTA, When the RTA was impleaded in revision, there was compliance of Section 64A of the Act. What is contemplated by proviso to Section 64A of the Act is that the STAT should not pass any order prejudicial to any person before affording him a reasonable opportunity of being heard. Under S. 48, the power of fixing of timings of such carriages is to be exercised by the RTA after it decides to grant the stage carriage permits. This power, as aforesaid, was delegated to the Secretary, RTA, by its resolution referred to above. The order passed by the Secretary, RTA, in pursuance of the delegation, would tantamount to an order of the RTA. As the RTA was impleaded and as an opportunity of being heard was given to the RTA, there was no infirmity in the order of the STAT on this count.

6. It was next argued by Mr. Vyas that the STAT had no jurisdiction to entertain the revision under Section 64A of the Act against the order dated January 8, 1979, of the Secretary, RTA, for, the STAT can revise the orders of the RTA and STA and not the Secretary, RTA. On the face of it, the argument seems to be attractive but it does not bear scrutiny. It is correct that under Section 64A, the STAT may pass appropriate orders in revision against an order which has either been passed by the STA or RTA but as discussed above, the order passed by the Secretary, RTA, in exercise of his delegated power is virtually an order of the RTA so as to be capable of being revised under Section 64A of the Act. This contention of the learned counsel for the petitioner being devoid of force, is, therefore, rejected.

7. The third contention raised by the learned counsel for the petitioner is that the STAT should not have interfered with the order of the RTA dated January 8, 1979 inasmuch as the time which was granted to the petitioner by the Secretary, RTA, was provisional subject to filing of objections and decision thereon by the RTA and as such, non-petitioners Nos. 4, 5 and 6 should have approached either the Secretary, RTA or the RTA itself for change of the provisional timings granted by the Secretary, RTA on January 8, 1979 and, thereafter, if any order prejudicial to their interest would have been passed, they could prefer revision under Section 64A of the Act. As this was not done, the impugned order of the STAT was without jurisdiction.

8. The timings of the old service were as under;--

Partapgarh Dept

7.00A.MDhariawad Dep:

9.30 A.M. Kesariaji Art

2.30 P.M. Kesariaji Dep:

10.00A.M.Dhariawad Dept

3.30 A.MPartabgarh Arr.

5.30 P.M. The Additional timings fixed on October 18, 1978 were as under -Partapgarh Dept

1.80Dhariawad Dep:

3.30 Kesariaji Arr.

8.15 Kesariaji Dep:

8:00 A.m. Dhariawad Dep:

11.00 AM. Partabgarah Arr.

12.45

The aforesaid timings were fixed after hearing several objectors. The Secretary, RTA, changed the timings as mentioned in Anx. P. 3 dated January 8, 1979, subject to objections. The operators-non-petitioners Nos. 4, 5 and 6 preferred revisions. The STAT, after considering the circumstances, recorded a finding that there was no justification for changing the timing of the operators of Partabgarh-Banswara route from 2.00 p.m. to 1.00 p.m. as departure time from Partabgarh and that this departure time from Partabgarh would remain 2.00 p. m. For the purpose of providing reasonable gap between the services of Partabgarh-Kesariaji and Partabgarh-Banswara routes, the STAT thought proper to fix the departure time as 1.00 p. m. instead of 1.30 p. m. The timings were consequently modified. It was held by a Division Bench of this Court in Kalusingh v. Transport Appellate Tribunal, AIR 1970 Raj 149, that in fixing the time-table, the RTA does not act in a quasi-judicial manner but this, however, does not mean that the RTA will draw the time-table without obtaining the views of the various operators plying on the route in fixing the time-table, It was observed therein as under:--

'......Even when an authority is passing an administrative order, such authority exercises its discretion after taking into account all the relevant circumstances. The Regional Transport Authority may first pass a provisional order fixing the time-table and then it may hear the operators concerned and make such alterations in the time-table as may appear to it to be desirable. In doing all this, the Regional Transport Authority concerned, though acting in administrative capacity, would only be doing its duty in a manner which will give satisfaction to all concerned and it is expected even of an administrative authority that while passing an administrative order, it will not act in an arbitrary manner but in a manner which will take the interest of the public and those affected by that order'. The STAT modified the timings having regard to all relevant considerations inclusive of the interest of the travelling public. Under Section 64A of the Act, in a revision, the STAT has been empowered to pass any order as it deems fit. In Abdul Rehman v. State Transport Appellate Tribunal, AIR 1978 SC 949, it was laid down that the High Court under Article 226 of the Constitution should be reluctant to interfere with or disturb the decision of specially constituted authorities or tribunals under the Act. It was observed as under:--

'...In dealing with applications for writs of certiorari under Article 226 of the Constitution the High Court does not exercise the jurisdiction of an Appellate Court and the findings or conclusions on questions of fact could hardly be re-examined or disturbed by it under Article 226 of the Constitution unless the well-recognised tests in that behalf were satisfied'.

Fixing of time-table is an administrative act and as, after taking into consideration the relevant circumstances, the STAT modified the timings, it cannot be said that it is illegal, or there is any error apparent on the face of the record or it is without jurisdiction. The RTA had already granted timings and, thereafter, the Secretary, RTA, modified the timings by his order dated January 8, 1979. In Anx. P. 3 it is written that subject to objections, the time of departure from Partabgarh is changed from 2.00 P. M. to 1.00 P. M. and no change was made about departure from Banswara. This cannot be said to be the provisional timing fixed by the RTA. This will not preclude the aggrieved persons from preferring revision under Section 64A of the Act by virtue of which, the STAT, on its own motion or in an application made to it, can call for the record of the case in which an order has been made by the RTA and no appeal lies therefrom, and if the order appears to be either improper or illegal, it can pass appropriate orders. In these circumstances, the contention of the learned counsel for the petitioner that timings fixed by the Secretary, RTA, in Anx. 3 were provisional, subject to filing of the objections and, therefore, the revision should not have been entertained by the STAT, is without force. In exercise of extraordinary jurisdiction under Article 226 of the Constitution, timings which were modified by the STAT cannot be interfered with.

9. The result is that the writ petition has no force and it is accordingly dismissed. In the circumstances of the case, there will be no order as to costs.


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