Kan Singh, J.
1. The writ petition raises a short question about the powers of a Regional Transport Authority to grant a temporary variation of an existing non-temporary permit so as to include a new area or route in such permit for a limited period pending an application for granting the variation on non-temporary basis The relevant facts are briefly these.
2. There is a route Reengus-Danta Ramgarh Via Rhatu and Bai in the Jaipur region. It is 31 miles in length and is said to be a 'C' class route. There are four operators on this route and petitioner Sriram is one of them. Respondents Nos. 2 to 9 held non-temporary permits for Sikar-Renwal via Palsana. Khatu Shamji and Khachariawas route. This latter route is a mixed 'A' and 'C' class route, 53 miles in length, When the respondents applied for permits on Sikar-Renewal route some time before 1963 there was opposition from the operators of Reengus-Danta Ramgarh route and this led to several proceedings but it is not necessary for the present purposes to refer to them. Suffice it to say that ultimately it was held that village Bai was included in the permits of the respondents. Thereafter the respondents applied for variation of the routes of their permits so as to include the route from Bai to Daulatpurs, Danta Ramgarh, Puniana and to Khachariawas. It is not in dispute that during the pendency of the application? made by the respondents for variation of their route they made applications on 8-11-67 purporting to be under Section 57 (8) of the Motor Vehicles Act, 1939, hereinafter to ho referred as the 'Act', for grant of a temporary variation of the permits by including the new route that they wanted to be added to their existing permits on non-temporary basis.
By a circulation note the Regional Transport Authority considered these applications and on 2-12-67 the Regional Transport Authority resolved that pending final variation of the route covered by the respondents' permits as applied for the variation may be temporarily allowed for four months. It will be convenient to reproduce the order here-under:
'Sub; Variation of Sikar-Renwal route from Baye to Khacharyavas Via Danta Ramgarh route.
The existing operators of Sikar-Ren-wal route operate the services via Ramo-li-Palsana-Gewati, Khatu-Shyamji Bai and Khachariyawas. The village Ramoli, Aloda and Gewati fall in Panchayat Samiti Danta Ramgarh. On the persistent demand of the people of these villages to have direct services upto the Panchayat Hqrs. Danta Ramgarh the operators have applied for changing the via of one of their services and include Danta Ramgarh in the service.
The present route is Sikar-Rarnoli-Pal-sana-Gewati-Samar Khatu Shamji Baye Khacharyavas Kuli Renwal. Variation requested for is from Baye to Daulatpura, Danta Ramgarh, Puniana and Khacharyavas i.e. 17 miles extra. Danta Ramgarh is a Tehsil Head Quarter, S. H. O. Station and Panchayat Samiti Head Quarters and village Aloda-Gewati, Dulkuya at present have got no travelling facilities. The proposal has been notified to invite objections and will be put up in the meeting in due course.
It is, therefore, resolved unanimously that pending final decision the variation as applied for at present be allowed for four months temporarily.'
It is the validity of this order of the Regional Transport Authority which is challenged before me in the present writ petition.
3. It is contended by the petitioner that a temporary variation of the non-temporary permits so as to include the new route as already applied for cannot be granted by the Regional Transport Authority as, according to the petitioner, the Act does not make any provision for grant of such a temporary variation. In the second place, it was contended that even assuming that Section 62 of the Act was attracted the Regional Transport Authority was all the same incompetent to grant a temporary variation on the analogy of a temporary permit for the reason that proviso to Section 62 precluded the Regional Transport Authority from giving either a temporary permit or a temporary variation of the permit on account of the pendency of the applications for grant of variation of the permits on non-temporary basis.
4. The writ petition has been opposed on behalf of the respondents Nos. 2 to 9. They contest the stand taken by the petitioner and urge that proviso to Section 62 would not be attracted to the facts like the present as the application for variation of the permits by inclusion of tny new route could not be regarded as an application under Section 46 of the Act which was the necessary condition for the applicability of the proviso to Section 62. It is urged that Section 57 (8) of the Act applies to such a case and the application for variation of the conditions of the permit by inclusion of a new route therein is an independent application under Section 57 (8) and not one under Section 46; the only requirement being that that application has to be disposed of in the manner laid down by Section 57 of the Act. In effect it is maintained that the condition laid in that proviso to Section 62 will not be applicable to such an application.
5. For appreciating the contentions of learned counsel it will be convenient to read Section 62 of the Act.
'Section 62. Temporary Permits -- A Regional Transport Authority may, without following the procedure laid down in Section 57, grant permits, to be effective for a limited period not in any case to exceed four months, to authorise the use of a transport vehicle temporarily:
(a) for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings, or
(b) for the purposes of a seasonal business, or
(c) to meet a particular temporary need, or
(d) pending decision on an application for the renewal of a permit; and may attach to any such permit any condition it thinks fit:
Provided that a temporary permit under this section shall, in no case, be granted in respect of any route or area specified in an application for the grant of a new permit under Section 46 or Section 54 during the pendency of the application:
Provided further that a temporary permit under this section shall, in no case be granted more than once in respect of any route or area specified in an application for the renewal of a permit during the pendency of such application for renewal.'
6. Section 62 came up for consideration before a Full Bench of this Court 1961 Raj LW 16: (AIR 196.1 Raj 98 FB). It was decided therein that the first proviso relates to Clause (c) only, while the second proviso covers Clause (d) alone. There is no question of the applicability of the second proviso to the present matter. Therefore even to meet a particular temporary need it will not be open to the Regional Transport Authority to grant temporary permit if an application for grant of a permit under Section 46 is pending at the material time. What! Dave J. (now C. J.) in delivering the judgment of the majority observed was as follows:
'To conclude, both the provisos should be construed harmoniously with the foregoing provisions of Section 62 and if so interpreted, the words ''under this section' in both the provisos would not mean 'under the whole section' but 'under the relevant part of the section'.
The first proviso relates to Clause (c) only, while the second proviso governs Clause (d) alone.
The meaning and purpose of the first proviso is to direct the R. T. O. that if an application for a non-temporary permit under Section 46 of the Act is presented for any route or area, then it should be decided expeditiously according to law, and so long as it remains pending, no temporary permit should be given under any circumstances to the ap-piicant for non-temporary permit or to any other person in respect of the said route or area, in the name of, or under the guise of, meeting a particular temporary need under Clause (c).' Therefore, the question is whether the application for variation of the permits by inclusion of new route on temporary basis could be regarded as an application under Section 46 of the Act within the meaning of the first proviso. At this stage I may refer to Sections 46 and 57. Section 46 provides that an application for a permit in respect of a service of stage carriage shall contain the particulars mentioned in that section. It shall further contain such other matters as may be prescribed by the rules made under the Act. Section 57 lays down the procedure in applying for and granting of permits. It inter alia lays down that an application for a stage carriage permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect. Sub-section (3) provides for publication of the application in the prescribed manner so that representations, if any, could be made against the application. Sub-section (5) provides that where representations are made the Regional Transport Authority shall dispose of the application at a public hearing. It is in this context that Sub-section (8) comes and it reads as follows :--
'Sub-section (8). An application to vary the conditions of any permit, other than a temporary permit, by the inclusion of a new route or routes or a new area or, in the case of a stage carriage permit, by increasing the number of services above the specified maximum, or in the case of a contract carriage permit or a public carrier's permit, by increasing the number of vehicles covered by the permit, shall be treated as an application for the grant of a new permit:
Provided that it shall not be necessary so to treat an application made by the holder of a stage carriage permit who provides the only service on any route or in any area to increase the frequency of the service so provided, without any increase in the number of vehicles.'
This sub-section requires that every application to vary the conditions of a permit, except a temporary permit, by the inclusion of a new route therein shall be treated as an application for the grant of a new permit. The significance of the words 'shall be treated as an application for the grant of a new permit' has to be appreciated. This has given rise to divergence and division in the interpretation presented by the learned counsel. Learned counsel for the respondents wants to urge that the application for the variation of conditions of a permit is to be treated as an application for grant of a new permit only for the mode of its disposal and not in other respects. That is, according to him, this cannot be treated to be an application for a new permit under Section 46 of the Act. On the other hand, learned counsel for the petitioner urges that full effect has to be given to the plain language of this subsection and the application has to be treated as an application for the grant of a new permit for all relevant purposes including Section 62 of the Act.
7. I have gone into the matter care-fully and in my view the application for variation of the conditions of a permit has to be treated as an application for grant of a new permit for the purposes of Section 46 as well as Section 62 of the Act. One thing that is striking is that no separate provision is made for the making of an application for variation of the conditions of a permit and, therefore, one is at a loss to know as to what that application should contain and to whom it should b' made, if Section 46 is put out of way. It appears that Sub-section (8) of Section 57 creates a legal fiction and an application for variation of the conditions of a permit has been placed at par with an application for grant of a new permit. If that were not so, then strictly speaking Section 62 itself will not enable the Regional Transport Authority to grant a variation of an existing permit on temporary basis for a period of four months, as the Regional Transport Authority has done in the present case. Now, if Section 62 is kept aside then there is no other provision which can be resorted to for the grant of the variation of the conditions of an existing permit on a temporary basis. To my mind the intention of the Legislature was clear enough when it provided that an application to vary the conditions of permit shall be treated as an application for the grant of a new permit. It wanted all the provisions that apply to an application for grant of a new permit to apply to the application to vary the conditions of a permit as well. Without thii there will be a hiatus and such an interpretation has to be avoided. This may be necessary where the language of the provision is capable of being construed that way but not in the present ease.
8. Now Shri Maheshwari invited my attention to M. V. Abraham v. Pothen Kuruvilla, AIR 1967 Ker 112. In that case the applicant was operating a bus service on Thiruvalla Thattarambalarn route and the petitioner's route ended at Pulikke-ezhu. He applied for grant of a pucca variation for his existing permit for extending his services from Pulikkeezhu to Thattarambalarn. He applied for grant of a temporary permit pending his application for extension of his permit beyond Pulikkeezhu. The Regional Transport Authority felt that there existed a temporary need to be met during the interim period till the pucca extension of permit was effected and the temporary need was on account of a certain festival. It was in this context that the learned Judges of the Kerala High Court had to consider the proviso to Section 62. They held, following an earlier case, thai an application under Section 57(8) of the Act should not be treated as an application for a new permit within the meaning of the proviso to Section 62 of the Act.
9. On the other hand, learned counsel for the petitioner invited my attention to an earlier Single Bench case of that Court in which it was held that Section 57 (8) provided that an application to vary the conditions of any permit shall be treated as an application for the grant of a new permit and to such a case Section 62 would be attracted and consequently the application for temporary variation had to satisfy the test laid down in Section 62 of the Act.
10. Thus in the Kerala High Court different opinion had prevailed at different time though the case cited by Shri Maheshwari being a Division Bench case has to be taken as mere authoritative pronouncement of that High Court. However, with all respect I am unable to give a limited construction to Section 57(8) of the Act. Further, in the Kerala case what was granted was a temporary permit on account of a particular temporary need and not a temporary variation of an existing permit as in the present case. Thus strictly speaking the Kerala case is distinguishable.
11. Now there is no gainsaying the fact that this temporary variation was granted by the Regional Transport Auth-ority durine the oendencv of an application for varviny the conditions of the permits on non-temporary basis. In these circumstances the limitations on the powers of the Regional Transport Authority in the matter of grant.ins temporary permits will apply for grant of a temporary variation of the conditions of the permit. In my view, therefore, the Regional Transport Authority could not have granted a temporary variation of the permits to the respondents by inclusion of a new route and the order Ex. 5 has to be struck down.
12. I may here notice that a preliminary objection was raised by Shri Maheshwari to the effect that the petitioner could have gone in appeal to the Transport Appellate Tribunal under Clause (b) of Section 64 of the Act as this variation was tantamount to the variation of the conditions of the petitioner's permit as well and he relied on a bench decision of this Court reported as Heeralal v. State of Raiasthan, AIR 1959 Raj 41. I would have considered this plea, but there is one overriding consideration which has dissuaded me. The member of the Transport Appellate Tribunal is engaged now-a-days in the work of the Pay Commission and it has been brought to my notice in several other cases in this Court that the member of the Transport Appellate Tribunal had adjourned the hearing of cases sine die and he takes only urgent matters only once a week. This is a case of a temporary variation of the existing permits and almost the period of three months and three weeks has gone by. It was settled as back as in the vear 1961 that the Regional Transport Authority cannot grant temporary permits when applications for non-temporary per-mits were pending for a route even if there were a particular temporary need.
13. Looking to all the facts and circumstances of the case, therefore, I decided to hear the case on merits
14. In the result, I allow this writpetition and hereby quash the order Ex.-5,passed by the Regional Transport Authority on 21-12-67. The respondents arerestrained from giving effect to thatorder There will be no order as to costs.