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Shankar Bus Service Vs. the Transport Appellate Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Miscellaneous Writ Petition No. 692 of 1967
Judge
Reported in1969WLN377
AppellantShankar Bus Service
RespondentThe Transport Appellate Tribunal and ors.
Cases ReferredOosman Ismail v. Trav. Co. State
Excerpt:
motor vehicles act, 1939 - section 46--application for permit--routes on different roads running over common sector--consideration of applications.;where, however, the routes lie on different roads which may run over a common sector the applicants concerned should bring it to the notice of the reginal transport authority, if it is not already aware of the position that their applications cover a common sector of the road as the applications which it is going to take up and then if the applications of such applicants are also ripe it will be the duty of the regional transport authority to set down such applications for hearing at one meeting so that the over all position may be appreciated and the possibility of decision of one set of applications sealing fate of the other set or which..........with other existing operators between kota-bakani via jhialwar-patan & teendhar on 6-4-63, the regional transport authority vide its resolution no. 9 resolved to publish the application of the petitioner and others. it was also resolved that a copy of the agreement between the rajasthan state with the madhya pradesh state about the reciprocity of permits over the interstate route be obtained from the director of transport, jaipur, as the same was not available with the office of the regional transport authority. two persons, suganchand and another p. gopal krishna menon, also applied for grant of fresh permits to them for the route patan-jhalawar-mandawar-teendhar-bakani. their applications, according to the petitioner, were published for inviting objection under section 57(3) of the.....
Judgment:

Khan Singh, J.

1. I have before me a writ petition by Messrs Shanker Bus Service who are an existing operator on Kota-Bakanivia Jhalawar-Patan-Tendhoroute lying within the Kota region, The challenge is against an order of the Transport Appellate Tribunal on an' appeal filed before it by respondent No. 3 Balchand Chorasia whereby, in setting aside a resolusion of the Regional Trans-Authority, Kota refusing the application of the respondent Balchand Chorasia for a permit from Jhalawar to Machalpur via Mandawar-Teendhar and Bokohi-Barkena it ordered the issue of a permit to respondent No. 3 from Jhalawar to Barkhera.

2. For appreciating the contentions raised before me, I may briefly describe the concerning routes. There is a road from Kota to Jhalawar and the distance between them is 53 miles. At, Jhalawar the road bifurcates. One road branches off towards Patan which is 4 miles from Jhalwar and then from Patan it comes to Tendhar, The other road from Jhalwar goes to Mandawar which is 5 miles from Jhalwar and then from Mandawar the road comes to Teendhar, The distance between Mannawar and Teendhar is 6 miles. Between Jhalawar and Teendhar a loop is formed; arch which passes through Patan and then comes to Teendhar and the other arch passes throgn Mandawar and then comes to Teendhar. From Teendhar the road is one and it comes to Bakani. The distance between Teendhar and Bakani is 6 miles. The road proceeds further from Bakani and goes to Barksera which is on the border of Rajasthan and Madhya Pradesh. The distance between Bakan and Barkhera is about 5 miles. The road then enters Madhya Pradesh territory from Bakhera and goes to Machalpur. The distance between Barkhera and Machalpur is 6 miles. I may here mention that the route Kota-Jhalawar-Patan-Teendhar is a portion of the nationalised route Kota-Eklera-Bhopal; the distance between Kota arid Teendhar being 63 miles.

3. I have taken the above facts Annexure R-1, which is a rough sketch & it may be that there may be an inaccuracy of one mile here or one mile there, but that will be of no consequence. Petitioner is paying its bus from Kota to Bakani with corridor restriction on the nationalised portion of the route between Kota & Tendhar It applied for extention of its permit upto Machalpur along with other existing operators between Kota-Bakani via Jhialwar-Patan & Teendhar On 6-4-63, the Regional Transport Authority vide its resolution No. 9 resolved to publish the application of the petitioner and others. It was also resolved that a copy of the agreement between the Rajasthan State with the Madhya Pradesh State about the reciprocity of permits over the interstate route be obtained from the Director of Transport, Jaipur, as the same was not available with the office of the Regional Transport Authority. Two persons, Suganchand and another P. Gopal Krishna Menon, also applied for grant of fresh permits to them for the route Patan-Jhalawar-Mandawar-Teendhar-Bakani. Their applications, according to the petitioner, were published for inviting objection under Section 57(3) of the Motor Vehicles Act, 1939, hereinafter to be referred as the 'Act', in the Government Gazette of 9-12-65. Subsequently en 4-1-66 respondent No. 3 Balchand Chorasia submitted an application for grant of a fresh permit on Jhalawar-Machalpur route via Mandawar-Bakani and Barkhera. The application filed by Balchand Chorasia was published in the Rajasthan Gazette dated 16-6-66 for inviting objections. The petitioner claims that against this application of Balchand Chorasia it sent objections to the Regional Transport Authority under a certificate of posting on 26-6-66 and it also sent copies of the objections to Balchand Chorasia on the same day under a postal certificate. The Regional Transport Authority, Kota Tonk up for consideration the application filed by Balchand Chorasia for Jhalawar-Machalpur at its meeting held on 10/11-1-67 along with the objections of the petitioner and other bus operators. Eventually the Regional Transport AuthT ority dismissed Balchand Chorasia's application. The resolution of the Regional Transport Authority (Annexure-3) ran as follows:

Resolution No.23 (Item No. 28) of R.T.A Kota meeting held on 10/11-1-67.

Grant of Non Tem. S.C. permits on Jhalawar to Machalpur via Mandwar Bakani Barkhera route.

This is an interstate route on which there is no reciprocity with M.P. One suomoto application of Shri Balchand Chorasia has been received and published on 16-6-66.

Shri Balchand Chorasia has applied for grant of non-temporary S.C. Permit on this route. There is no reciprocity with M.P. Resolved therefore the application be rejected.

Announced

Aggrieved of this resolution Balchand Chorasia went up in appeal to the Transport Appellate Tribunal. The appeal was heard by the Transport Appellate Tribunal and it was allowed on 30-8-67. It was submitted on behalf of Balchand Chorasia before the Tribunal that he was prepared to ply his bus upto Barkhera and the permit should accordingly be granted to him upto Barkhera which was on the Rajasthan border and then the petitioner was willing to try for a permit from Regional Transport Authority, Indore, for the portion of the route that lay within the Jurisdiction of that Regional Transport Authority. The Transport Appellate Tribunal noticed that the clerk of the Regional Transport Authority who had brought the cage before it stated that no objections had been filed by the exiting operators or any other interested persons and, therefore, the Tribunal could not find any grounds as might go against the grant of a permit from Jhalawar to Barkhera to respondent No. 3. The Tribunal also observed that Balchand Chorasia might try to obtain a fresh permit on the route between Barkhera to Machalpur. In the result the Transport Appellate Tribunal ordered that a permit be granted to Balchand Chorasia for the route Jhalawar to Barkhera.

4. This order of the Transport Appellate Tribunal is assailed on the ground that the Transport Appellate Tribunal was in error in ordering the grant of the permit to Balchand Chorasia, as the same could not have been granted by the first authority, that is, the Regional Transport Authority, unless the latter had also simultaneously considered the pending application of the petitioner for extension of its route from Bakani to Machalpur. Learned Counsel points out that the application for extension and the fresh application made by Balchand Chorasia covered a common sector substantially and, therefore, according to the several pronouncements of this Court, disposal of one set of applications without the other was bound to result in materially affecting the fate of the pending applications that were not considered along with. It is further submitted that in the instant case the adverse result has actually ensued as subsequently on account of want of scope the petitioner's application was rejected. It is further argued that the Transport Appellate Tribunal had exceeded its jurisdiction in granting a permit for ther oute after curtailing it as the same was contrary to the provisions of Section 48 of the Act. Lastly, it was urged that if the Transport Appellate Tribunal was persuaded to curtail the route and then grant a permit to respondent No. 3, then the Transport Appellate Tribunal should have heard the present petitioner.

5. The writ petition has been opposed on behalf of Balchand Chorasia. It is denied that the order of the Transport Appellate Tribunal suffered from any flaw on any of the grounds urged by the petitioner. It is submitted that as the route over which the petitioner was plying and which it wanted to be extended was a route different from the one over which permit was asked for and granted to respondent No. 3, it was not necessary either for the Regional Transport Authority or for the Transport Appellate Tribunal for that matter to have considered the petitioner's application as also of other like it, along with the application of respondent No. 3. Then it is stoutly disputed that the petitioner had filed any objections against the application of respondent No. 3. It is, in the circumstances, argued that it was not necessary for the Transport Appellate Tribunal to have heard the petitioner in the appeal filed by respondent No. 3 as regards the variation in the route. It. is pointed out that this was within the powers of the Regional Transport Authority in accordance with Section 48 of the Act and consequently the Transport Appellate Tribunal could modify the route suitably and that was not objectionable. Then by way of a preliminary objection it is argued that the petitioner having not filed its objections against the application of the respondent, it was not entitled to be heard by the Regional Transport Authority or the Transport Appellate Tribunal and on this account this Court should not hear it in the exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution.

6. I may first consider the question whether the petitioner has been able to establish that it had filed the objections against the application of respondent No. 3. This is a question of fact. Though the petitioner has produced in this Court two postal certificates yet it will be a question whether they relate to the objections against the application of respondent No. 3. I have persued the order of the Transport Appellate Tribunal and there is a recital therein that the clerk of the Regional Transport Authority who had brought the record had stated that no person had filed any objection against the application of Balchand Chorasia. I should not be taken to approve of this way of dealing with the matter. It is hardly safe to depend upon a word of mouth of the clerk. Any way, the fact remains that the Transport Appellate Tribunal had come to the conclusion that the petitioner had not filed any objection against the application of respondent No. 3. The record of the Regional Transport Authority was also called here and no such objection, as is said to have been filed by the petitioner, is available on that record and also collateral circumstances from which this could be checked up are not available. Collateral circumstance could have been like publication of the agenda and the mentioning of the objections therein, but that check is not available. In these circumstances lam unable to come to the conclusion that the record of the Transport Appellate Tribunal discloses any error apparent on the face of the record so as to justify interference with the conclusion reached by the Transport Appellate Tribunal regarding the filing of objections by the petitioner.

7. Then there is another branch of the submission of learned Counsel for the petitioner that even without filing objections the petitioner could ask for consideration of its application along with the application of respondent No. 3, as the two sets covered substantially the same route. For his submission learned Counsel draws support from a recent judgment of this Court in Messrs Matinhail Ex-Servicemen Co-operative Society Ltd. Vs, Regional Transport Authority, Jaipur and other (S.B Civil Writ Petition No. 35 of 1968 decided on 11-7-68). In this case the previous cases of this Court were considered. It was observed that for considering the question whether two routes were substantially the same it has to be seen whether termining of the two routes are common and also whether they lie on the same highway. Then it was observed that for seeing whether applications for routes falling on the same highway should be considered together or not, it was necessary to examine whether grant of one set of applications over the same highway would result in sealing or materially effecting the fate of other set of applications for the other route. It was added that what will be a substantial common highway will depend upon the facts and circumstances of each and it should not be difficult to find that out looking to the total length of the common highway in relation to the milage and the traffic on the common sector of the road However, after adverting to those considerations a reservation was made in that case that no opinion was being expressed as to what would happen when the two routes run on different highway, though they might run over a common sector for some distance.

8. In the present case the question has arisen. The route applied for by respondent No. 3 was Jhalawar-Mandawar-Teendhar-Bakani-Barkhera and Machalpur. Between Jhalawar and Teendhar the route passes over the road which forms the arm of the loop between Jhalawar and Teendhar. The petitioner runs on the arm of the loop which goes via Patan and comes to Teendhar. The common road between the two routes would be beyond Teendhar. Thus the two routes cannot be said to lie entirely on the common road. They lie on two different roads which have a common sector as well for some distance. The principle that decision of one set of applications should not result in sealing the fate of other set of applications or should not materially affect their fate is wholesome and to ensure that it is desirable that the two sets of applications be heard on the same date of hearing. I have, however, seriously considered the question how this principle should meet the requirement when the roads are not the same for the toutes applied for, but the road is common for some distance. The Regional Transport Authority is normally expected to be aware of the several applications for routes completely lying on the same road and for them it can unhestitatingly be said that it should deal with all such applications in the light of the several decisions of this Court which came to be reviewed in M/s Matinhail Ex-Servicemen Cooperative Society's case and what was said in that case, Where, however, the routes lie on different roads which may run over a common sector the applications concerned should bring it to the notice of the Regional Transport Authority, if it is not already aware of the position that their applications cover a common sector of the road as the applications which it is going to take up and then if the applications of such applicants are also ripe it will be the duty of the Regional Transport Authority to set down such applications for hearing at one meeting so that the over all position may be appreciated and the possibility of decision of one set f applications sealing the fate of the other set or which might materially affect their fate may be avoided. This situation is going to arise only when there is a common road which applications for permit might be pending and and be ripe. If the roads are different altogether then there could hardly be a question of taking up or deciding applications for different routes together.

9. Shri J.G. Chhangani argued that the petitioner's route and the route for which respondent No, 3 wanted permit was common, but having seen the map of the two route produced by the parties I am unable to hold that the route Kota-Jhalawar-Patan-Teendhar-Bakani could be said to be the same route as Jhalawar-Mandawar-Teendhar-Bakani-Machalpur. The routes lie on different roads though they run over a common sector beyond Teendhar towards Machalpur side. In that situation two courses were open to the petitioner; (1) to have filed objections against the application of respondent No. 3 in accordance with Section 57 of the Act. Such objections, it has to be noticed, could be filed only within the specified time. If a party were to do so, then he would have ample opportunity of putting forth his case at the time applications for permit by the rival parties are considered. (2) The other course open to the party is to request the Regional Transport Authority to consider its own application along with the applications for the other route with a common sector. In the event of the Regional Transport Authority being satisfied that the common sector of the road is substantial and in the circumstances the decision of set of applications for one route without the decision of the applications for the other route is bound to seal the fate of the remaining applications or to materially affect such set then it is the duty of the Regional Transport Authority to take up and to decide the applications for two routes with a common sector of the road together. In the present case, the ground taken by the petitioner is that it had filed objections against the application to respondent No. 3. For the reasons already given by me, I am unable to come to the conclusion that the Transport Appellate Tribunal had committed any error in holding that no such objections were filed. As regards petitioner's having prayed before the Regional Transport Authority that it should consider and decide the petitioner's application as well along with the application of respondent No. 3, there is no matterial on the record.

10. I am now take up the second point. It is indisputable that the powers of the Transport Appellate Tribunal in hearing an appeal against an order of the Regional Transport Authority refusing to grant a permit on an application are the same as that of the Regional Transport Authority in the matter of grant of permits. The question is whether it was open to the Transport Appellate Tribunal to have granted the permit to respondent No. 3 upto Barkhera when the respondent had applied for a permit upto Machalpur. The powers of the Regional Transport Authority regarding this are contained in in Section 48 of the Act and I may read the relevant portion thereof:

Section 48 Grant of stage carriage permits. (1) 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:

Provided that no such permit shall be granted in respect of any route or area not specified in the application...

The enacting portion of the Sub-section lays down that permit may be granted either in accordance with the application of the party or with such modifications as the Regional Transport Authority may deem fit to make. There is however, a limitation imposed on the Regional Transport Authority that it cannot grant a permit in respect of any route or area not specified in the application. Now th3 proviso cuts out something from the subject-matter of the enacting portion and therefore, in my view, the enacting portion will be taken to embrace the application in its entirely including the particulars therein about the route. Section 40 provides as to what an application for as permit has to contain and Clause (a) thereof provides that the route or routes or the area or areas to which the application relates has to be specified. A form is also prescribed for an application by the rules and according to them also the route or area has to be mentioned in the application. Therefore, when the enacting portion of this Sub-section talks of the modification, in my view, it includes the modification relating to the route as well. This is, however, subject to what is contained in the proviso. The proviso lays down that permit has not to be granted in respect of any route or area not specified in the application. This could in the very nature of things mean a route which has not been mentioned in the application at all or if the modification is such that the character of the route as applied for is materially changed and thereby it becomes a different route, then that cannot be allowed to be done in the garb of the modification. Full effect has to be given both to the enacting portion of the Sub-section as well as the proviso. Reading them harmoniously the words 'any route or area not specified in the application' occuring in the proviso will be taken to mean a route which is no the same as is mentioned in the application and it is materially different from it. I do recognise that while there may be no difficulty in stating the legal position difficulty might arise in the application of the same. As to whether a modification is such as would convert the application to one for a new route altogether so as to be hit by the proviso will depend upon the facts and circumstances of each case. The formula cannot be put in a straight jacket.

11. Now what is the position in the present case? Respondent No. 3 applied for a permit from Jhalawar to Machalpur. According to sections 45 and 63 of the Act, in the case of an interstate route a party may apply for a permit before the Regional Transport Authority within whose jurisdiction the party resides or wants to have his business. Thus the Regional Transport Authority, Kota could have entertained such an application. It was within the province of the Regional Transport Authority, Kota to have granted permit for the entire route Jhalawar-Machalpur though such permit could not have been valid beyond Barkhera without the counter signature of the concerning Transport Authority of Madhya Pradesh. For importing validity to such a permit in Madhya Pradesh two ways were open to a party. If it were to apply for countersignatures before the concerning Transport Authority of the Madhya Pradesh, then the latter by following the procedure of Section 57 of the Act could grant such countersignature. The other course would be open, if there were some reciprocity arrangement between the States of Rajastnan and Madhya Pradesh. In that case it would not be necessary to resort to the procedure of of Section 57 of the Act for obtaining the countersignatures of the concerning Transport Authority of Madhya Pradesh and the countersignature could be granted by such authority without following the procedure of Section 57. The Regional Transport Authority refused the permit of respondent No. 3 on the ground that there was no reciprocity arrangement between Rajasthan and Madhya Pradesh, but the exercise of jurisdiction in the matter of granting permit for the entire route did not depend on the existence or non-existence of such an agreement because the countersignature could be made by following the procedure of Section 57 of the Act by the concerning Transport Authority of Madhya Pradesh. That being so, the Transport Appellate Tribunal could have ordered the grant of permit to the party and the non-existence of the reciprocity arrangement between Rajasthan and Madhya Pradesh could not stand in the way for ordering the grant of such a permit. Therefore, when permit could have been granted for the whole of the route upto Machalpur and the Transport Appellate Tribunal thought fit to grant it only upto Barkhera then it cannot be said that the Transport Appellate Tribunal has introduced a modification which was of such a character as would convert the application for permit for permit wholly different route as would be hit by the proviso of Section 48(1) of the Act.

12. Learned Counsel for the petitioner invited my attention to Madhya Pradesh Stale Road Transport Corporation, Bairagarh, Bhopal v. State Transport Appellate Authority, M.P. Gwalior and Anr. : AIR1965MP286 and Mohammad Jamil v. The State Transport Authority 1956 RLW 184. In the Madhya Pradesh case : AIR1965MP286 the modification that the petitioner sought to make in his application related to an inter-regional route. Section 45 of the Act provides that in the case of an inter-regional route the application for permit has to be made to a Regional Transport Authority in whose jurisdiction the major portion of the inter-regional route lies. The petitioner in that case made the application before the Regional Transport Authority in whose jurisdiction the minor portion of the route lay. He was faced with the lack of jurisdiction in the authority and, therefore, sought to curtail the route as applied for only upto the region of that authority. This curtailment, in my view, was with a view to import jurisdiction to the Regional Transport Authority which lacked it ab intio. This question has been considered even by this Court in Aman Khan v. Sheo Onkar and Ors. , to which I was a party. It was held that an application made to a Regional Transport Authority in which the minor portion of the inter-regional route lies is unauthorised and the Regional Transport Authority has no jurisdiction to entertain the application. This case does dot afford a parallel to the present case, as in the case of an inter-state route the authority in whose jurisdiction petitioner resides or in whose jurisdiction he wants to have his business is competent to grant the permit for the entire route irrespective of the length of the portion lying in one State or the other. This is, therefore, not helpful. Similarly, Mohammad Jamil's Case 1956 RLW 184 did not deal with a situation which has arisen for consideration in the present case.

13. Learned Counsel for the respondent has invited my attention to Oosman Ismail v. Trav. Co. State AIR 1953 T.C. 74. As I have already discussed, it will depend on the facts and circumstances of each case as to what is the kind of the modification or curtailment. If thereby the route becomes wholly different from the one contained in the application, then the proviso will inhibit and it will not be competent for the Regional Transport Authority to modify the routes and grant a permit.

14. In these circumstances I am satisfied that the Transport Appellate Tribunal had not exceeded its jurisdiction by granting the permit upto Barkhera.

15. There is no substance in the third contention of learned Counsel for the petitioner that it should have been heard before the Transport Appellate Tribunal thought of reducing the route in the manner it did. As I have already observed, it has not been shown that the Transport Appellate Tribunal was in error in coming to the conclusion that the petitioner had filed any objection before the Regional Transport Authority, it was not entitled to a hearing before the Transport Appellate Tribunal. In that situation the order of the Transport Appellate Tribunal cannot be said to be wrong even if the petitioner was not heard by the Transport Appellate Tribunal.

16. However, it has to be noticed that the application made by the petitioner in the year 1983 for extension of its permit from Bakani to Machalpur has not been published by the Regional Transport Authority so far. This is a very considerable period and it is surprising that the Regional Transport Appellate has over looked the provisions of Section 57 of the Act in this connection.

17. In the result I allow this writ petition in p Article While the writ petition is dismissed against respondent No. 3 Balchand Chorasia, the Regional Transport Authority is commanded to publish the petitioner's application for inviting objections as also of others, if there are any, pending before it within a period of four weeks from the date the Regional Authority receives the order from this Court and then decide it according to law. The parties are left to bear their own costs.


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