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Girdhari Vs. Regional Transport Authority and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtRajasthan High Court
Decided On
Case NumberD.B. Writ Petitions Nos. 1134 and 1135 of 1969
Judge
Reported in1970WLN72
AppellantGirdhari
RespondentRegional Transport Authority and ors.
DispositionPetition dismissed
Cases ReferredLaxmi Narain v. State Transport Authority
Excerpt:
.....r.t.a. deciding to open the new rules and fixing the limit under section 47(3) is revisable by the state transport authority on an application to it under section 64a and the petitioner or any other existing operator had sufficient interest to challenge that order.;(b) motor vehicles act, 1939 - section 64(a)--revision--aggrieved party has right to approach s.t.a.--remedy by revision is efficatious.;section 64-a expressly makes provision for an application by an aggrieved person to the state transport authority to call for the record of any case in which an order has been made by the regional transport authority and in which no appeal lies and to pass such order in relation to the case it deems fit. an aggrieved person has thus a right to approach the state transport authority.;the..........deciding to open the new routes and fixing the limit under section 47(3) is revisable by the state transport authority on an application to it under section 64-a and the petitioner or any other existing operator had sufficient interest to challenge that order. this was so held in laxmi narain v. state transport authority, u.p. : [1968]1scr635 and j.m. wahal v. s.m. jan 1969 (2) sc cases 833.9. the petitioner could have challenged the order granting permits to the respondents by filing appeals to the t.a.t. provided that he had filed representations against the grant of permits under section 57(3) within 30 days from the date of the publication of the applications. he could have opposed the grant of the permits on the ground that the new routes should not be opened or on the ground.....
Judgment:

Jagat Narayan, C.J.

1. These two writ petitions have been referred by a learned Single Judge because he was of the opinion that the decision of another learned Single Judge in Harischander v. Regional Transport Authority requires reconsideration.

2. The relevant facts are these. The petitioner is one out of 17 existing operators on the Bikaner Duagargagh-Sardarshahar route. Formerly there was no road between Dungargarh and Ratangarh. A new road was later on constructed and applications were filed by different persons for grant of permits over Bikaner-Dungargarh-Ratangarh route and over Bikaner-Dungargarh-Ratangarh-Churu route. These applications were published in the Gazette from time to time, and a meeting of the Regional Transport Authority was convened on 25-6-1969 to consider them. Neither the petitioner nor any other person filed any objection against the grant of permits on these routes to the applicants in accordance with the provisions of Section 57(3). On the date of hearing the petitioner appeared before the Regional Transport Authority and filed an application that it could not grant any permit on the Bikaner-Churu route as it had not fixed the limit of permits as required under Section 47(3). The R.T.A. thereupon proceeded to fix the scope of both the routes The scope of Bikaner-Churu route was fixed at 5 permits providing 2 return services daily. The scope of Bikaner-Ratangarh route was fixed at 5 permits providing 6 return trips daily. Thereafter at the same meeting the R.T.A. considered the rival claims of the applicants for permits on these two routes. On the Bikaner-Churu route it granted 5 permits to respondents No. 2 to 6 of writ petition No. 1134/69. On the Bikaner-Ratangarh route the scope of which was fixed at 5 permits it granted 3 permits to respondents No 2 to 4 of writ petition No. 1135/69 as these 3 persons alone had applied for grant of permits on this route.

3. Girdhari Lal filed the present writ petitions challenging the grant of permits to these respondents, on 22-8-1969.

4. It. was contended before the learned Single Judge on behalf of the petitioner that as the R.T.A. had not fixed the limit under Section 47(3) by means of an independent order of an anterior date the grant of permits on the routes was without jurisdiction and could be callenged by filing a writ petition. The learned Single Judge was inclined to accept this argument. Chandmal J. had taken a different view in Harish Chander Singh v. Regional Transport Authority and therefore he made this reference.

5. The view taken by Chandmal J cannot be sustained in view of the decision of their Lordships of the Supreme Court in R.O. Naidu v. Addl. S.T.A.T. Madras : [1969]3SCR730 . But it was not held even in that case that the grant of permit without fixing the limit under Section 47(3) was null and void. This matter was considered by us in Smt. Shakuntala Devi v. Transport Appellate Tribunal Jaipur and others (D. B. Civil Special Appeal No. 113/69 decided on 28-1-1970)1970 WLN 45 and we held that the grant of permit in such a case would no doubt be illegal as being against the provisions of the Motor Vehicle Act, but it would not be null and void. The permit so granted is not a nullity and has to be challenged by filing an appeal against the grant of permit to the Transport Appellate Tribunal and this Court will not entertain a writ petition against the grant of permit unless an appeal has been filed before the T.A.T. and has failed.

6. These two writ petitions cannot therefore be entertained by this court.

7. It may be mentioned here that in this case the R.T.A. first took a decision to open these two new routes on the ground that a road connecting Dungargarh and Ratangarh had been newly constructed and that it was necessary to provide direct services between Bikaner and Churu and Ratangarh respectively. The R.T.A then fixed the limit of permits on these two new routes. Thereafter it proceeded to consider rival claims of the appellants on the Bikaner-Churu route and granted 5 permits to the 5 respondents After that it granted 3 permits to the 3 respondents for Bikaner-Ratangarh route. The scope of this route was fixed at 5 permits, but as there were only 3 applicants 3 permit were granted.

8. It is unnecessary to decide in this case whether the procedure followed by the Regional Transport Authority in fixing the limits was in accordance with law. Suffice it to say that the order of the R.T.A. deciding to open the new routes and fixing the limit under Section 47(3) is revisable by the State Transport Authority on an application to it under Section 64-A and the petitioner or any other existing operator had sufficient interest to challenge that order. This was so held in Laxmi Narain v. State Transport Authority, U.P. : [1968]1SCR635 and J.M. Wahal v. S.M. Jan 1969 (2) SC Cases 833.

9. The petitioner could have challenged the order granting permits to the respondents by filing appeals to the T.A.T. provided that he had filed representations against the grant of permits under Section 57(3) within 30 days from the date of the publication of the applications. He could have opposed the grant of the permits on the ground that the new routes should not be opened or on the ground that the limit under Section 47(3) should first be fixed and then applications should be invited for grant of permits on these new routes.

10. In R.O. Naidu v. Addl. S.T. A.T. Madras : [1969]3SCR730 the permits were granted without fixing the limit under Section 47(3) by the R.T.A. The grant of permits was opposed by the existing operators before the R.T.A. on the ground that there was no need to open the route. The Transport Appellate Tribunal set aside the order granting permits on the ground that limits under Section 47(3) had not been fixed. This order was upheld by the High Court as well as by the Supreme Court. In the present case the R.T A. fixed the limit before granting the permits, But this was done at the same meeting. In R.O. Naidu's case AIR 1969 Raj. 228 their, Lordships of the Supreme Court observed that first there should be a determination by the R.T.A. under Section 47(3) of the number of stage carriages for which stage carriage permits may be granted on that route and thereafter applications for stage carriage permits on that route should be entertained. This was the view taken by the T.A.T. and the High Court and this view was held to be correct. Their Lordships proceeded to observe:

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 on the route and thereby public interest which should be the main consideration while taking go decision under Section 47(3) may suffer. If we accept the view taken by the R.T.A. as correct, an operator who happens to apply for the route first will be in a commanding position. The R.T.A. will have no opportunity to choose between competing operators and hence public interest might suffer.

11. In Shri Raja Rajeshwari Bus Service v. R.T. A. : AIR1969Mad458 the Regional Transport Authority invited applications for a grant of a stage carriage permit on a new route. Three applications were filed which were published on 12-1-1968 and 8-2-1968 was fixed as the date on or before which the representations in connection with the applications should be submitted furnishing copies thereof simultaneously to the applicants The petitioner who was an existing operator in the area did not file any representation or objection within the prescribed time. He sent an application by registered post before the date fixed for the meeting praying that proceedings under Section 47(3) should be taken before consideration of the applications for permit on the merits. He appeared before the R.T.A. at the hearing and made the same submission. One permit was granted by the RTA. The petitioner challenged the grant before the High Court by filing a writ petition under Article 226 of the Constitution. It was observed--

There is no dispute that for the route in question, there has been no prior determination under Section 47(3). But the question is whether the proceedings are liable to be challenged under Article 228 and quashed at the instance of the petitioner, who had admittedly made no representation under Section 57(3) within the prescribed time....

...

There can be no doubt and it has been to held following the decisions of the Supreme Court that Section 47 envisages two stages of inquiry: (i) fixation of number of permits under Section 47(3) and (ii) consideration thereafter of the applications for the grant of permit and representations, if any, by persons mentioned in Section 57(3)....

The contention of Mr. K.K. Venugopal that the petitioner could not, in proceedings under Section 57(3) raise objection as to want of a prior determination under Section 47(3), is devoid of merits....

The rule that where an inquiry under Section 47(3) is necessary it mustError! Hyperlink reference not valid. the disposal of applications for permit on their merits, does not preclude the raising of all germane objections and relevant representations within the time prescribed Once the objections raised and representations made call for a determination under Section 47(3), under the rulings it is incumbent upon the Regional Transport Authority to take proceedings under Section 47(3) first before embarking upon the merits of the applications under Section 57,

Here the petitioner has not notified, his objections to the grant of permit on the route, and Sub-section (3) and (4) of Section 57 read together preclude the Regional Transport Authority from hearing the petitioner at the inquiry under Section 57(3). Section 57(4) bars the authority from considering any representation in connection with an application referred to in Sub-section (3), unless the application is made in writing before the appointed date.

12. In Purshotham Bhai Punambhai Patel v. State Transport Appellate Authority, Madhya Pradesh Civil Appeal No. 762 of 1963--Decided on 14-4-64 the Supreme Court held.

We consider that the terms of Section 57(3) and (4) of the Act preclude any party who had not notified its objections in time to be heard at any stage of the proceedings original or appellate in relation to the grant of permit on an application duly advertised under Section 57(3).

For the above reasons the learned Judges of the Madras High Court declined to interfere in the matter under Article 226 of the Constitution. This decision is fully applicable to the facts of present case:

13. A Division Bench of this court held in Sharma Roadways v. Sohonlal Soni 1965 RLW 340 that a party failing to file a representation within the prescribed period was not entitled to hearing by the Regional Transport Authority and was not entitled to get relief under Article 226 of the Constitution either.

14. It was contended on behalf of the petitioner that he is mainly interested in challenging the order passed under Section 47(3) and that the Motor Vehicles Act does not prove a specific legal remedy to enable him to challenge that order. It was argued that the remedy by way, of a revision application provided under Section 64-A was not a specific, legal remedy. Reliance was placed on some observations made in M. Bisha v. C. Sulhan Beig AIR 1959 Mysore 17. In that case an order was passed by the Secretary, Regional Transport Authority granting an application for renewal of a permit and this was challenged by filing a writ petition under Article 226 of the Constitution. It was contended that the petitioner should have availed of the remedy provided under the Motor Vehicles Act. Their Lordships held that no appeal lay under Section 64 against an order passed by the Secretary. Nor did any revision lie under Section 64-A as it applied only to orders passed by the Regional Transport Authority. That section runs as follows:

The State Transport Authority may, either on its own motion or on application made to it, call for the record of any case in which an order has been made by a Regional Transport Authority and in which no appeal lie's, and if it appears to the State Transport Authority that the order made by the Regional Transport Authority is improper or illegal, the State Transport Authority may pass such order in relation to the case as it deems, fit:

Provided that , the State Transport Authority shall not entertain any application from a person aggrieved by an order of a Regional Transport Authority, unless the application is made within thirty days from the date of the order;

Provided further that the State Transport Authority shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard.

15. The learned Judges proceeded to observe that even assuming that that the section applies to the order in question it cannot be said that the petitioners had a specific legal remedy which would bar a writ of certiorari. As laid down in A.R. Sarin v. B.C. Patil : AIR1951Bom423 by Chief Justice Chagla, 'a specific legal remedy, which would bar a writ of certiorari can only mean that the petitioner must have a right to approach a court and he must have a right to a remedy if his case was just. Applying this principle, it cannot be said that the petitioners have a right to approach the State Transport Authority under Section 64-A, and have a right to remedy if their case was just' In this case also, Section 64-A of the Motor Vehicles Act only deals with the power of the State Transport Authority to interfere with an order of the Regional Transport Authority and not with the rights of a party who is affected by the said order. A party may approach the State Transport Authority but he has no right to do so nor has he a right to a remedy because the State Transport Authority may refuse a remedy under this section.

16. It is clear that the above observations are obiter. Further with great respect we are unable to agree with them. Section 64-A expressly makes provision far an application by an aggrieved person to the State Transport Authority to call for the record of any case in which no appeal lies and to pass such order in relation to the case as it deems fit. An aggrieved person has thus a right to approach the State Transport Authority. We may in this connection again refer to the decision of their Lordships of the Supreme Court in Laxmi Narain v. State Transport Authority, U.P. : [1968]1SCR635 in which it was held that a revision application under Section 64-A lies against an order made under Section 47(3).

17. The remedy by way of a revision application under Section 64-A is therefore a specific legal remedy which was available to the applicant. Further this remedy is fully efficatious as the State Transport Authority is competent to pass such order as it deems fit. If on a revision application under Section 64-A the State Transport Authority is of the opinion that the route should not be opened then it is competent to cancel all the permits granted by the Regional Transport Authority on the new route opened by it Further in case the State Transport Authority is of the opinion that the limit fixed by the Regional Transport Authority is too high it can reduce the limit and pass an appropriate order.

18. In the result we dismiss both the writ petitions. We however leave the parties to bear their own costs.


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