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Harishchander Singh Vs. Regional Transport Authority and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 381 of 1967
Judge
Reported inAIR1969Raj228
ActsMotor Vehicles Act, 1939 - Sections 43(3), 47, 47(3), 48 and 64
AppellantHarishchander Singh
RespondentRegional Transport Authority and ors.
Appellant Advocate D.P. Gupta, Adv.
Respondent Advocate J.P. Jain, Adv. (for No. 3),; M.M. Tiwari, Adv. (for No. 4) and;
DispositionPetition dismissed
Cases ReferredBishandas Khemchand v. Regional Transport Authority. Civil Writ Petn. No.
Excerpt:
- - 3 to 5 while the question of increase in the limit of permits was under consideration of the regional transport authority, it is sub-milted that the petitioner wanted to pursue the usual remedy of an appeal under section 64 of the motor vehicles act of 1939 but since, in spite of his best efforts he could not obtain a certified copy of the resolution earlier, therefore he was compelled to invoke the extraordinary jurisdiction of this court under article 226 of the constitution as he apprehended that his appeal would be rendered abortive on account of his failure to submit a certified copy of the resolution of the regional transport authority. in these circumstances one cannot help feeling that the filation of this writ application was motivated by a desire to obtain a stay order.....orderc.m. lodha, j. 1. this writ application is directed against the resolution of the regional transport authority, udaipur region, udai-pur no, 86 passed in the meeting held from 15th to 18th march, 1967 granting three permits to each of the non-petitioners nos. 3, 4 and 5 viz. bhawanishanker, kanaiya-lal and laxmi trading company respectively on ghatol-kushalgarh route via surpur, banswara, kalinjra, sajjangarh, doongra for a period of three years. 2. the petitioner held a stage carriage permit on banswara to kushalgarh route and subsequently this permit was extended from banswara to ghatol. by a resolution of the regional transport authority, udaipur dated 25/26 october, 1963 and since then the petitioner has been plying his bus on the ghatol-kushalgarh route. it may be stated that.....
Judgment:
ORDER

C.M. Lodha, J.

1. This writ application is directed against the resolution of the Regional Transport Authority, Udaipur Region, Udai-pur No, 86 passed in the meeting held from 15th to 18th March, 1967 granting three permits to each of the non-petitioners Nos. 3, 4 and 5 viz. Bhawanishanker, Kanaiya-lal and Laxmi Trading Company respectively on Ghatol-Kushalgarh route via Surpur, Banswara, Kalinjra, Sajjangarh, Doongra for a period of three years.

2. The petitioner held a stage carriage permit on Banswara to Kushalgarh route and subsequently this permit was extended from Banswara to Ghatol. by a resolution of the Regional Transport Authority, Udaipur dated 25/26 October, 1963 and since then the petitioner has been plying his bus on the Ghatol-Kushalgarh route. It may be stated that Ghatol-Kushalgarh route is 68 miles 'A' Glass route and the petitioner pliesone return service daily. It appears that subsequently Hazi Moola Rasool Bhai Abdul Husaain and Brothers and Saiyed Niyamalullah who are also existing operators on Kushalgarh-Banswara route applied for extension of their permits from Banswara to Ghatol and when their applications came up for consideration the Regional Transport Authority, Udaipur by its resolution No. 59 dated 25th/ 26th March, 1965 dismissed their applications on the ground that the extension asked for would be unnecessary and would result in joining two separate routes viz. Banswara Kushalgarh and Banswara-Ghatol. A little later the Regional Transport Authority, Udaipur vide its notification dated 15-6-1905 published in the Rajasthan Rajpatra dated 1-7-65 proposed to revise the existing scope of stage carriage permits on the Banswara-Kushalgarh routes amongst others and invited objections to the proposed increase in the number of stage carriage permits as shown in the Notification. It may be stated that the existing scope-permits shown against the Banswara-Kushalgarh and Ghatol-Kushalgarh route was two and the proposed increase in the number of permits was shown as two. So also for Gbatol-Kushalgarh route the existing scope-permit was shown as one and the proposed increase in the number of permits was shown as two. It is stated by the petitioner that he submitted objections to the proposed increase in permits, but the matter has not been decided so far by the Regional Transport Authority in respect of the route in question viz. Ghatol-Kushalgarh route. Then, it appears that six more persons made applications for grant of permits on this route which came up for consideration before the meeting of the Regional Transport Authority held on 17-1-1966. The applications of the applicants who remained absent were rejected straightway while the applications of those who were present were kept pending till the scope of traffic between Ghatol and Kushalgarh was ascertained after proper survey. By the same resolution the Regional Transport Authority also directed issue of notice to the petitioner, who is an existing operator, to 'show cause' why his route be not curtailed between Ghatol and Kushalgarh and he kept only from Ghatol to Banswara. The petitioner submits that he has filed a reply to show cause notice but nothing has been done in the matter so far.

3. Thereafter the non-petitioners Nos. 3, 4 and 5 applied for grant of one permit each on Ghatol-Kushalgarh route. Objections were filed by the petitioner to the applications of the non-petitioners Nos. 3, 4 and 5, but the Regional Transport Authority by the impugned resolution granted a non-temporary stage carriage permit to each of the three non-petitioners on this route for a period of three years.

4. The petitioner thereafter filed an appeal before the Transport Appellate Tribunal on 20th March, 1967. It may be stated that the memo of appeal submitted by the petitioner was not accompanied by a copy of the impugned resolution of the Regional Transport Authority. The petitioner, however, applied for staying the issuance of permits to the non-petitioners Nos. 3, 4 and 5 and after hearing the petitioner the Transport Appellate Tribunal granted an ex parte stay on 21-3-1967. Later on, after hearing the opposite parties the stay order was vacated by the Transport Appellate Tribunal on 28-7-1967. This writ application was thereafter filed on 31-7-1967.

5. The petitioner's case is that the resolution of the Regional Transport Authority granting permits to the non-petitioners Nos. 3 to 5 is illegal and void on the ground that the Regional Transport Authority had fixed the limit of the number of stage carriage permits to be plied on the route in Question and the proceedings for increase of the limit were pending before it. and therefore it had no jurisdiction to grant fresh permits to the non-petitioners No. 3 to 5 while the question of increase in the limit of permits was under consideration of the Regional Transport Authority, It is sub-milted that the petitioner wanted to pursue the usual remedy of an appeal under Section 64 of the Motor Vehicles Act of 1939 but since, in spite of his best efforts he could not obtain a certified copy of the resolution earlier, therefore he was compelled to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution as he apprehended that his appeal would be rendered abortive on account of his failure to submit a certified copy of the resolution of the Regional Transport Authority. Kota, appealed from.

6. This writ application came up for admission on 6-9-1967 but a week's time was prayed for, on behalf of the petitioner. It may be stated, that in the meanwhile, the petitioner submitted an application for withdrawal of the appeal before the Transport Appellate Tribunal on 7-9-1967 on the ground that the copy of the resolution appealed from had not been supplied to him by the Regional Transport Authority as the same is not yet ready. It was further prayed that the petitioner may be left free to file another appeal as and when a copy of the resolution of the Regional Transport Authority is supplied to him. On this application the Transport Appellate Tribunal dismissed the appeal as withdrawn on the same day. It was thereafter that this writ application was admitted on 15-9-1967.

7. The application has been opposed onbehalf of the non-petitioners Nos. 3, 4 and5 by their learned Advocates Shri J. P.Jain, Shri Tiwari, and Shri H. P. Gupta,respectively. It is contended on their behalf that the applicant had an adequate alternative remedy by way of an appeal which he deliberately did not avail when the stay application filed by him was ultimately rejected by the Transport Appellate Tribunal on 28-7-1967. It is urged that the petitioner has not come with clean hands inasmuch as having obtained an extension in his favour he wants to avail the extended permit on the route in question by excluding everybody else. It is submitted that the petitioner has obtained a certified copy of the impugned order of the Regional Transport Authority, Udaipur and has submitted the same before this Court. This very copy could have been submitted before the Transport Appellate Tribunal and the petitioner could have obtained the judgment of the Transport Appellate Tribunal on merits, but in order to get round the order vacating the stay, passed against him by the Appellate Tribunal and to make another effort to obtain a stay order from this Court, the petitioner has filed this writ application. It is thus argued on behalf of the non-petitioners that this Court should not exercise its extra-ordinary jurisdiction in favour of the petitioner in view of his conduct and the peculiar circumstances of the case. On merits it is stated on behalf of the non-petitioners that no resolution fixing the number of permits on the route as envisaged by Section 47 (3) of the Motor Vehicles Act was ever passed by the Regional Transport Authority, Udaipur and therefore the Regional Transport Authority had jurisdiction to grant permits to the non-petitioners Nos. 3 to 5.

8. It is, no doubt, true that the impugned order of the Regional Transport Authority, Udaipur is appealable and an appeal was in fact filed within limitation before the Transport Appellate Tribunal. It is also a fact that even though the appeal was not accompanied by a certified copy of the impugned order of the Regional Transport Authority, the Transport Appellate Tribunal dealt with the stay matter and actually passed an ex parte stay order at the request of the petitioner staying the operation of the impugned order, but unfortunately for the petitioner the ex parte stay order was vacated on 23-7-1967. It is significant that soon after the stay application was rejected this writ application was filed in this Court. Mr. D. P. Gupta, learned counsel for the petitioner, has strenuously contended that the appeal filed by the petitioner before the Transport Appellate Tribunal was not maintainable and was bound to be dismissed as the petitioner had not submitted a certified copy of the impugned order of the Regional Transport Authority along with the memorandum of appeal. He submits that the minutes had not been drawn till 18-9-1967 and the petitioner made an application to the Secretary. Regional Transport Authority, that a copy of the resolution may be supplied to him and in case the resolution had not been signed by the members concerned, steps may be taken to get the resolution completed and thereafter the copy may be supplied. He has placed on record the reply in original dated 18-9-1967, (Annexure 12) received from the Secretary, Regional Transport Authority, Udaipur informing his client that the minutes of the meeting of the Regional Transport Authority dated 15-3-1957 were with the members Of the Regional Transport Authority and hence copies would be supplied only when the minutes are received back. He submits that the minutes were actually signed by the Chairman of the Regional Transport Authority as late as 6-10-1967 and even though he had made an application for copy of the resolution as early as 18-3-1967, the copy was actually supplied to him on 23-10-1967 i.e. after filing of the writ application. It is alleged that it was in these circumstances that the petitioner was compelled to file the writ application. It is submitted by Mr. D. P. Gupta that a memorandum of appeal filed before the Transport Appellate Tribunal not accompanied by a certified copy of the order appealed from is incompetent. He has in this connection referred to Rule 108 of the Rajasthan Motor Vehicles Rules and to Order 41, Rule 1, C. P. C. He has also placed reliance on Jagat Dhish Bhargava y. Jawahar Lal, AIR 1961 SC 832 in which their Lordships dealt with the provisions of Order 41 Rule 1 C. P. C. regarding production of copy of decree appealed from.

9. On the other hand in support of his contentions Mr. Jain submits that the provisions of Order 41, Rule 1, C. P. C. cannot be pressed into service in the case of presentation of an appeal before the Transport Appellate Tribunal from an order of Regional Transport Authority under the Motor Vehicles Act. It is submitted by him that it is open to the Transport Appellate Tribunal to dispense with the production of a certified copy of the order of the Regional Transport Authority in a suitable case.

10. I do not think it necessary to decide the question whether the Transport Appellate Tribunal is competent to dispense with the production of a certified copy of the order appealed from, as according to me, it is only academic in the present case. As events transpired in this case, a certified copy of the order of the Regional Transport Authority was supplied to the petitioner and the same has been filed before this court. The contention advanced on behalf of the non-petitioners that this writ petition was motivated by a desire to make a second attempt before this Court to get a stay order cannot be said to be altogether without substance. The petitioner did make all efforts to get a stay order from the Transport Appellate Tribunal, but did not succeed. It is significant, however, that the Tribunal did not refuse to deal with the appeal because the petitioner had not filed a certified copy of the Order of the Regional Transport Authority. However, when the Tribunal did not grant stay, the petitioner filed this writ application instead of getting the hearing of the appeal expedited. It is clear that the petitioner was able to obtain a certified copy of the order of the Regional Transport Authority which was submitted in this court There does not appear any reason why the copy of the impugned order of the Regional Transport Authority which the petitioner has produced in this court could not have been filed before the Transport Appellate Tribunal. In these circumstances the contention of the petitioner that he had no adequate alternative remedy or the remedy by way of appeal which he had filed was useless, cannot be accepted. It is also significant that in the application for withdrawal of the appeal the petitioner has reserved his right to present another appeal if need be, after obtaining a certified copy of the order of the Regional Transport Authority. This application for withdrawal of the appeal was made after the filing of the writ application, and it passes one's comprehension how the petitioner was reiving on his right to file another appeal when he had already withdrawn one appeal and had filed this writ application on the ground that the appeal filed by him before the Tribunal was incompetent. In these circumstances one cannot help feeling that the filation of this writ application was motivated by a desire to obtain a stay order which the petitioner had failed to get from the Transport Appellate Tribunal and that the petitioner had an alternative, adequate and efficacious remedy by way of appeal which the petitioner did not deliberately pursue.

11. I am, however, not prepared to dismiss this writ application at this stage merely on the ground that the petitioner did not pursue his remedy of appeal before the Transport Appellate Tribunal, for two reasons: firstly because the matter has been pending In this court since 31-7-1967 and the case has been argued before me on merits, and secondly because my order is appealable under Section 18 of the Rajasthan High Court Ordinance and it would therefore be proper that without anticipating the view which mav be taken in appeal on this point. I think it proper that the matter should be disposed of on merits also.

12. Regarding merits, the question canvassed before me lies within a very narrow compass. The petitioner's case is that in the first instance the limit of stage carriage permits on the route in question was fixed under Section 47 (3) of the Motor Vehicles Act and assuming for the sake of argument that no such limit was fixed, proceedings were nevertheless pending beforethe Regional Transport Authority for fixing the limit, and, therefore, the Regional Transport Authority was not justified in granting fresh permits to the non-petitioners Nos. 3, 4 and 5. I called upon Mr. D. P. Gupta to point out to me the resolution of the Regional Transport Authority by which the limit of permits on the route in question was fixed under Section 47(3) of the Motor Vehicles Act. but Mr. Gupta expressed his inability to do so and his contention was that impliedly the limit must be deemed to have been fixed. His argument is that on 25/26th March, 1965 the applications of three persons for extension of their permits from Banswara to Ghatol were rejected. Again, he submits that by the Order of the Regional Transport Authority dated 17-1-1966 applications of a few applicants for grant of fresh permits on the route were kept pending till the survey report was received. He has laid great emphasis on the notification of the Regional Transport Authority dated 15-6-65 according to, which under the column existing scope-permits figure 'one' has been mentioned against the route in ques-tion and the proposed increase has been mentioned, as two. It is, therefore, argued that the limit of permits on the route in question must be taken to have been fixed by necessary implication.

13. I am, however, unable to accept this contention. Section 47(3) of the Motor Vehicles Act lays down that it is open to a Regional Transport Authority to limit the number of stage carriages generally or of any specified type for which stage carriage permits may be granted on any specified route. The trend of the Regional Transport Authority in this matter has not been very consistent and uniform, and unless it if clearly pointed out that any limit of permits was fixed, it would not be proper to infer merely from the circumstances that any limit had been fixed. The permit in favour of the petitioner was extended from Banswara to Ghatol on 25/26th October, 1963. Whether this limit existed on that date is not known. What were the circumstances under which this extension was granted have not been disclosed to the Court, and for reasons best known to the petitioner, the order of extension has not been produced. Then, in the year 1965 applications of three persons for extension were rejected on the ground, that extension would be unnecessary, which is neither here nor there. Then, in January 1966, when six persons applied for fresh permits on the route in question the applications of the applicants who were present were kept pending for survey of the scope of traffic, and curiously enough, a notice was given to the petitioner why his permit be not curtailed so as to restrict it between Kushalgarh and Ghatol thereby proposing to cancel his permit for a major portion of the route from Eushalgarh to Banswara. The reply filed by the petitioner to this notice has also not been placed on the record. In this state of affairs I find myself unable to accept the contention on behalf of the petitioner that the limit of permits should be deemed to have been fixed by tile Regional Transport Authority on the basis of the above mentioned resolutions and the notification issued by it. Learned counsel has placed reliance on Abdul Mateen v. Ram Kailash, AIR 1963 SC 64. Their Lordships of the Supreme Court observed in this case that where a limit has been fixed under Section 47 (3) by the Regional Transport Authority and there-after the said authority proceeds to consider applications for permits under Section 48 read with Section 57, the Regional Transport Authority must confine the number of permits issued by it within these limits. Thus according to the view taken by their Lordships, once the limit is fixed, the Regional Transport Authority has no jurisdiction to grant fresh permits unless the limit is changed by a proper resolution. But in the present case there is no material on the record for coming to the conclusion that the limit has been fixed under Section 47(3) of the Motor Vehicles Act, and therefore, the petitioner cannot derive any assistance from this authority.

14. This brings me to the alternative submission made on behalf of the petitioner that even though there may be no resolution of the Regional Transport Authority under Section 47(3) of the Act, if the proceedings for fixing the number of permits or for increasing the number of permits are pending before the Regional Transport Authority, it has no jurisdiction to grant fresh permits. Mr. D. P. Gupta has argued that some sort of proceedings were pending before the Regional Transport Authority in pursuance of the Notification dated 15-6-1965 for fixing or increasing the number of permits and, therefore, the R. T. A. had no jurisdiction to increase the permits. In this connection Mr. Gupta has placed strong reliance on an unreported Single Bench judgment of this Court: Bishandas Khemchand v. Regional Transport Authority. Civil Writ Petn. No. 137 of 1965 D/-6-10-1965 (Raj,) In that case the facts were that there were 7 existing permit holders on the route in dispute and the petitioner had applied for refixing the number of stage carriages on that route. The Regional Transport Authority had ordered a survey of the traffic on the route. It is not clear from the judgment, whether any resolution had been passed by the Regional Transport Authority fixing the limit of permits on that route but it was felt during the course of tours presumably by some officers or members of the Regional Transport Authority that the route had not been plied successfully for want of traffic. It further appears that the proceedings for refixing the number of permits had notculminated in any final resolution in that respect and in the meanwhile two alternative permits were offered. In these circumstances, the learned Judge, observed as follows:

'It was only proper in these circumstances that the Regional Transport Authority should have fixed the number before deciding the objection against the grant of alternative permits to M/s. Lakshmi Motors on this route'.

On reading this judgment it appears to methat his Lordship was persuaded to takethe view which he did on the peculiarfacts and circumstances of the case and ithas nowhere been laid down in this judgment that a permit granted in the circumstances as they exist in the present casewould be without jurisdiction. It is clearthat in that case there was a fall in thetraffic along the route in dispute and thiscircumstance weighed with his Lordshipto come to the conclusion that it would beproper to decide the matter of grant ofalternative permits only when the matterregarding refixing of the number ofpermits was decided. No materialhas been placed on the record in the present case to show that there was any fallin the traffic on account of which nofresh permits should have been issued. Noother authority has been brought to mynotice by the learned counsel for the petitioner on this point.

15. Section 48 provides that subject to the provisions of Section 47, a Regional Transport Authority may, on an application made to it under Section 46, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit. Section 47(3) provides that a Regional Transport Authority may, having regard to the matters mentioned in Sub-section (1), limit the number of stage carriages generally or of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region. It is no doubt correct that the powers of the Regional Transport Authority under Section 48 are controlled by the provisions of Section 47 (3) but in order that the rights of the Regional Transport Authority may be restricted, it is necessary that there must exist a resolution of the Regional Transport Authority limiting the number of stage carriages on any specified route. The bar can operate only when a resolution exists in fact. Preparations for passing that resolution or taking steps for passing that resolution in my opinion, cannot operate as a bar against the rights of the Regional Transport Authority under Section 48, In this view of the matter, it cannot be said that the impugned resolution of the Regional Transport Authority is without jurisdiction.

16. Thus there is no force in this writ application and it is hereby dismissed.

There will be no order as to costs.


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