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Usman Gani Vs. S.T.A.T. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 68 of 1980
Judge
Reported in1981WLN(UC)174
AppellantUsman Gani
RespondentS.T.A.T.
DispositionAppeal dismissed
Cases Referred and P. Palaniswumi v. S.R.P. Service
Excerpt:
.....carriage permit by the tribunal, a direction can be given that despite the cancellation of the permit granted by it in the alternative to m/s. roshanlal inderlal, they could be allowed to ply their vehicles on bambora-fatehnagar route until the matter is re-considered by the tribunal relating to the grant of non-temporary stage carriage permit to them.;special appeals dismissed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause..........(p) ld. coimbatore v. tvk transport pulampatti : [1975]2scr166 , it was held that the power to grant permit under section 47 of the motor vehicles act, 1939 is limited to the purpose specified in clauses (a) to (f) of section 47(1) for which it is meant to be exercised, that clause (a) gives the dominant purpose viz. interest of the public generally and clauses (b) to (f) are only its sub-categories or illustrations and that if any matter taken into consideration is not shown to be correlated to the dominant purpose or, the relationship or the effect of a particular fact, which has operated in favour of a grant in such as to show that it is opposed an the face of it, to public interest, the grant will be bad. it was further held that relevancy or otherwise of one or more grounds of.....
Judgment:

S.K. Mal Lodha, J.

1. Both these appeals under Section 18 of the Rajasthan High Court Ordinance, 1949 have been filed against the order dated April, 8, 1980 of a learned single Judge of this Court and as they involve common questions and have been heard together, we consider it convenient and proper to dispose them as by a common order.

2. D.B. Civil Special Appeal No. 68 of 1980 has been filed by Usmangani, who was the petitioner in S.B. Civil Writ Petition No. 963 of 1979, in which he questioned the legality and the propriety of the order dated June 26, 1979 of the State Transport Appellate Tribunal (for short 'the Tribunal' hereafter). In that writ petition, M/s. Roshanlal Inderlal were impleaded as respondent No. 4 and in this appeal they are respondents No. 3. The learned Single Judge, by his order dated April 8, 1980, allowed the writ petition and set aside the order of the Tribunal and also the resolution of the Regional Transport Authority (hereinafter referred to as 'the R.T.A.') dated April 24/25,1978 and remanded the case to the Tribunal for deciding the matter afresh relating to the grant of non-temporary stage carriage permit on Bambora-Fatehgarh route after examining the merits of the appellant and respondent No. 3 and further allowed the appellant and respondent No. 3 to ply their vehicles on the route in question until the matter is reconsidered by the Tribunal.

3. D.B. Civil Special Appeal No. 80 of 1980 has been filed by the appellant M/s. Roshanlal Inderlal against that part of the order of the learned single Judge by which the grant of permit made in this favour was quashed.

4. In Udaipur region, there is a route Bambera-Fatehnagar, which is 'C' class. The limit of stage carriage originally fixed on the aforesaid route was two stage carriages to perform two return services. The R.T.A. increased the scope by its resolution dated September 28, 1977 to three stage carriages to perform two return services. On account of the increase in scope, there occurred one vacancy. A Notification dated November 10, 1977 was published in the Rajasthan Gazette inviting applications for the grant of one permit on the aforesaid route. 14 applications were received. Usmangani, M/s. Roshanlal Inderlal and Bhanwarlal, who was respondent No. 3 in S.B. Civil Writ Petition No. 963 of 1979, were amongst the others, applicanls. The applications case published in the Rajasthan Gazette dated January 5, 1978. No objections were received. The applications came up for consideration before the R.T.A. at its meeting which was held on April 24/25, 1978. The RTA by its resolution dated April 24/25, 1978 resolved to grant one permit to Usmangani. Feeling aggrieved by the said resolution, five appeals were lodged before the Tribunal. One of the appeals was filed by Bhanwarlal and another by M/s. Roshanlal Inderlal. The Tribunal, by its order dated June 26, 1979, decided the appeals. Both the aforesaid appeals were accepted. The Tribunal cancelled the permit granted to Usmangani and directed that the non-temporary stage carriage permit be granted to Bhanwarlal, who was required to avail of the permit within a period of 30 days and in the event of his failure to obtain the permit within the time, the permit may be granted to M/s. Roshanlal Inderlal, who were also required to avail it within sixty days from the date of the order of the Tribunal. Being dis-satisiied with the order dated June 26, 1979, Usmangani filed the writ petition as aforesaid. It may be stated that during the pendency of the writ petition, Bhanwarlal expressed his inability to avail of the permit and so, the permit dated July 12, 1979 was issued by the R.T.A. in favour of M/s. Roshanlal Inderlal. The writ petition was contested on behalf of M/s. Roshanlal Inderlal by filing a reply dated August 8, 1979 on various grounds. The learned single Judge allowed the writ petition by his order dated April 8, 1980 and set aside the order dated. June 26, 1979 passed by the Tribunal and also the resolution dated April 24/25, 1978 the R.T.A. in regard to permit granted to Usmangani and the matter was remanded to the Tribunal for reconsideration. He directed that the Tribunal should consider the comparative merits of Usmangani and M/s. Roshanlal Inderlal in regard to the grant of permit on Bambera-Fatehnagar route. As the permit had already been issued to M/s. Roshanlal Inderlal and on July 12, 1979, he ordered that both Usmangani and Roshanlal Inderlal will be permitted to ply their vehicles on the said route. Feeling aggrieved, Usmangani and M/s. Roshanlal Inderlal have filed D.B. Civil Special Appeal No. 68 of 1980 and 80 of 1980 respectively.

5. We have heard Mr. R.N. Munsif for Usmangani, Mr R.R. Vyas for M/s. Roshanlal Inderlal and Mr. H.N. Calla, Additional Government Advocate.

6. Mr. Munshi appearing for the appellant Usmangani. lias raised the following two contentions before us.

(1) that, the learned single Judge was not right in remanding the matter to the Tribunal for fresh decision after comparing the merits and demerits of Usmangani and M/s Roshanlal Inderlal, for, M/s. Roshanlal Inderlal were not entitled to the grant of permit on account of misrepresentation and concealment of material facts and that there is material on record in this regard.

(2) that M/s Roshanlal Inderlal could not be permitted to ply their vechicle RSY 2815 of 1973 model on the strength of the permit obtained by them on July 12, 1979 when the learned single Judge has set aside the order dated June 26, 1979 of the Tribunal, by which the permit in the alternative was granted to them.

7. In support of the appeal of M/s Roshanlal Inderlal, Mr. R.R. Vyas contended that non-temporary stage carriage permit granted to them could not be set aside as it was rightly granted in the alternative to them by the Tribunal as they had offered a vechicle of 1973 model and were granted conductor's licences in 1969 and 1970. It was submitted that the order giving preference to M/s. Roshan Lal Inder Lal in the grant of permit was wrongly quashed.

8. Mr. Munshi submitted that M/s Roshanlal Inderlal had not come with clean hands and made certain misrepresentations. In support of his argument regarding the facts relating to misrepresentation and M/s Roshan Lai Inderlal having not come with clean hands, Mr. Munshi referred to the application (Anx. 3) dated December 6, t977 and invited our attention to the columns 1, 2, 3, and 9(b) and the signature on it and also to the resolution (Anx. 4) wherein relating to M/s. Roshanlal Inderlal, it is mentioned that it was stated on their behalf that they have Bus No. RSY 2815, model 1973, that they have been conductors since 1955, that they have permit for the route Haldighati Undari; that they are the members of the Joint Hindu family; that they are doing this business and that they have not obtained any previous permit. Our attention was also drawn to the memo of appeal (Anx. 6) which was filed before the Tribunal against the resolution dated April 24 25, 1978 of the RTA, in which the appellant has been described as M/s Roshanlal Inderlal Chaudhary son of Shri Kamal Chandji, resident of Nahar Magra, District Udaipur. In para 9 Anx. 6. it was stated that M/s. Roshanlal Inderlal possesses the conductor's licence since 1955 and has complete knowledge in the transport business, which, according to Mr. Munshi, is palpably wrong, for, the reason that Roshanlal was six years of age in 1955 as in his affidavit, which was filed in support of the reply to the writ petition on August 8, 1979, as he has stated his age to be 30 years. He also referred to paras 2 and 4 of the reply (Anx. 8) dated August 21, 1978 by Usmangani, which was filed before the Tribunal. He also submitted that on account of the misrepresentation of facts and having made false statement M/s. Roshanlal lnderlal were not entitled to any permit whatsoever and, therefore, the question of determining the comparative merits of Usmangani and M/s. Roshanlal lnderlal does not arise and as such there was no ocassion for remanding the matter. Mr. Vyas submitted that the permit granted to M/s. Roshanlal lnderlal by the Tribunal ought not to have been set aside as they have vehicle of 1973 Model and possess conductor's licence and these two relevent considerations prevailed with the Tribunal.

9. The learned single Judge minutely examined the order dated June 26, 1979 of the Tribunal and opined that the factor which weighed with the Tribunal and in giving preference to M/s. Roshanlal lnderlal was that they are conductors since 1955 and, he, therefore, repelled the contention raised on their behalf that the reason as to why the Tribunal gave preference to them was that they had offered a vehicle of 1973 model whereas Usman Gani had offered the vehicle of 1966 model. He was further of the opinion that M/s. Roshanlal lnderlal were not conducters since 1955 inasmuch as they were granted licences in the years 1969-70. The Tribunal ordered in the alternative, grant of permit to M/s. Roshanlal lnderlal because of their experience as conductors and 1973 model. We have read the order dated June 26, 1979 of the Tribunal. It is difficult to say that the Tribunal would have granted the permit in favour of M/s. Roshanlal lnderlal even if it would have been brought to its notice that the conducter's licence in their favour were not issued in the year 1955, but were issued in the years 1969 and 1970. The objections regarding misrepresentation having been made by M/s. Roshanlal lnderlal and that they have deliberately concealed the fact regarding permit held by them at Haldighati-Undari route etc. were not considered by the Tribunal, for, it only took into consideration the model of 1973 and experience as conductor for granting permit to them. It is settled that when there are number of considerations and it is found that one irrelevant factor was considered while deciding the question of granting permit, the order is vitiated because the irrelevant circumstances or factors may have influenced the mind of the Authority.

10. In Ajanta Transport (P) Ld. Coimbatore v. TVK Transport Pulampatti : [1975]2SCR166 , it was held that the power to grant permit under section 47 of the Motor Vehicles Act, 1939 is limited to the purpose specified in Clauses (a) to (f) of Section 47(1) for which it is meant to be exercised, that Clause (a) gives the dominant purpose viz. interest of the public generally and Clauses (b) to (f) are only its sub-categories or illustrations and that if any matter taken into consideration is not shown to be correlated to the dominant purpose or, the relationship or the effect of a particular fact, which has operated in favour of a grant in such as to show that it is opposed an the face of it, to public interest, the grant will be bad. It was further held that relevancy or otherwise of one or more grounds of grant or refusal of a stage carriage permit could be a jurisdictional matter and that a grant, or its refusal on totally irrelevant grounds, would be ultra vires or a case of excess of power. It is clear that if a ground which is irrelevant is taken into account with others which are relevant or, a relevant ground, which exists, is unjustifiably ignored, it could be said to be a case of excess of power under Section 47 of the Act, which is quasi-judicial, in a manner which suffers from a material irregularity. It was held in Krishna Kumar v. T.A. Tribunal that some times there may be more than one considerations for grant or refusal of a permit to a party; that one consideration may pull in favour of one party and another may have a pull in favour of another party and that in such cases it is primarily for the transport authority concerned to weigh the matter and decide as to in favour of which party the order for grant of permit should be made. It was observed:

It is normally not for the High Court to re-scrutinise such matters. Where there is a serious controversy about facts it is not convenient for the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution to decide it. It is primarily a matter which has to be decided by the Tribunal of facts. Sufficient reasons are to be given when a Tribunal decides a matter quasi-judicially so that it could be properly examined by the Court which has to exercise powers of superintendence. What will be sufficient reason will, however, depend on the facts and circumstances of each case and no rule of thumb can be laid down.

Mr. Vyas endeavoured to justify the grant of permit by the Tribunal to M/s. Roshanlal Inderlal on the ground that Model of 1973 was a predominant consideration which weighed with it. In Krishna Kumar v. T.A.T. Rajasthan 1968 RLW 432, it was held that availability of a better bus is also a relevant and material consideration; that the public will find it more advantageous if they are 1 o travel in a bus of later model in comparison to one of an elder model and that where an appellate order has over-looked a very material consideration that had weighed with the subordinate authority, then it cannot be said that the order does not suffer from any defect. The other authority that may be noticed in this connection is Ikramkhan v. S.T.A.T. : [1977]1SCR459 . In that case, the respondent had a later model and it tilted the balance in his favour. Their Lordships considered that this was an aspect well arising under Clauses (a) to (f) of Section 47 of the Act and, therefore, the Tribunal should have upheld the claim of the petitioner. In Smt. Shanti Devi v. S.T.A.T 1977 WLN 193, what was held was that the latter model is material and relevant consideration.

11. From these authorities, it cannot be said that the later model is the pre-dominant and sole consideration for the grant of non-temporary stage carriage permit. In Phusaram v. State , which has been relied on by Mr. Vyas, it was observed as under:.even if the second ground relating to 'on the spot enquiry' was left out as inadmissible the order could be sustained because the first ground relating to the identity of the applicant was established by legal evidence.

This is of no avail and it is distinguishable. As the Tribunal took into consideration the experience as conductor of M/s. Roshanlal lnderlal, since 1955, the learned Judge, in our opinion, was not unjustified in holding that the order of the Tribunal was vitiated because of that consideration and that it had influenced the mind of the Tribunal. For that reason, he was right in quashing the order dated June 26, 1979 of the Tribunal and remanding the case for re-consideration after examining the comparative merits of Usmangani and M/s. Roshanlal Inderlal. We are unhesitatingly of opinion that the grant of non-temporary stage carriage permit to M/s. Roshanlal Inderlal is vitiated on account of the reasons given above. We are unable to accede to the contention of Mr. Vyas that the learned singls Judge was not right in setting aside the permit granted by the Tribunal to M/s. Roshanlal Inderlal. In this view of the matter, it is not necessary to examine the other authorities cited by the learned Counsel in support of their respective contentions. The first contention is, therefore, rejected.

12. As regards the second point, namely, that the learned single Judge should not have directed, when he set aside the alternative grant of permit to M/s. Roshanlal Inderlal, to ply their buses till the matter is under consideration before the Tribunal, Mr Munshi referred to State of Orissa v. Madan Gopal 1976 RLW 201 and drew our pointed attention to paras 3, 5 and 6 of the report. It was observed as under in para 6:

In our opinion, Article 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application as the High Court has purported to do. The directions have been given here only to circumvent the provision of Section 80 Civil P.C. and in our opinion that is not within the scope of Article 226. An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to party on final determination of his rights in suit or proceeding. If the Court was of opinion that there was no other convenient or adequate remedy open to the petitioners it might have proceeded to investigate the case on its merit and come to a decision as to whether the petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status qua ante. But when the Court expressly held that they should be investigated more properly in a civils suit it could not, for the purpose of facilitating the institution of such suit, issue directions in the nature of temporary injunctions under Article 226 of the Constitution. In our opinion, the language of Article 226 does not permit such an action. On that short ground, the judgment of the Orissa High Court under appeal cannot be upheld.

Mr. Vyas controverted the submission of Mr. Munshi by citing Kishorilal and 99 Ors. v. State of Rajasthan S.B. Civil Writ Petition No 418 of 1979, decided on February 28, 1908, Gani Mohammed v. The S.T.A.T. 1976 RLW 201 and P. Palaniswumi v. S.R.P. Service : AIR1974SC1117 . In Kishorilal's cause (supra), the learned single Judge of this Court while dismissing the writ petitions, to avoid the hardship caused by displacement, allowed two months' time to the petitioners and during that period the petitioners were allowed to ply their buses on the concerned routes provided they have got existing permits and fulfil all other requirements of law. It maybe stated that in that case, writ petitions were filed by the bus operators aggrieved by the nationalisation of a number of routes in the various scheme in relation to Alwar District at Jaipur Region In Gani Mohammed's case , the learned single Judge maintained the order passed by the Tribunal setting aside the grant of permit in favour of the petitioner. However, he ordered that the petitioner shall be permitted to ply his vehicle on the route until the decision of the application for grant of permit on the route by the R.T.A. Udaipur.

13. In P. Palaniswami' case : [1952]1SCR28 , the appeal was filed against the order dismissing the writ petition for setting aside the order of the Tribunal. The High Court remanded the case to the Tribunal for re hearing without the constraint of the Government Order. That order was upheld by the Supreme Court. While dismissing the appeal, their Lordships directed that order shall not effect the carrying on of the business by the appellant and on the respondents on the basis of permits granted as a result of stay orders till the Tribunal decides about the grant in accordance with law. From the aforesaid decisions of the Supreme Court, it is abundantly clear that when even the direction is made for re-considering the matter in respect of the grant of non-temporary stage carriage permit by the Tribunal, a direction can be given that despite the cancellation of the permit granted by it in the alternative to M/s. Roshanlal Inderlal, they could be allowed to ply their vehicles on Bambora-Fatehnagar route until the matter is re-considered by the Tribunal relating to the grant of non-temporary stage carriage permit to them.

14. State of Orissa's case 1977 WLN 193, which has been relied on by Mr. Munahi is clearly distinguishable. In that case the Government of Orissa had passed an order cancelling the permit and directed the respondents to remove their assets appertaining to the mines within a fortnight. Against that, petition for writ of mandamus was filed. The High Court declined to investigate and pronounce on the rights of the parties and expressly kept the determination thereof in abeyance in the suit proposed to be filed by the respondents. The High Court, however, held that at the moment the respondents had no alternative legal remedy, equally convenient, beneficial and effectual because the respondents could not file a suit till after the expiry of the period of sixty days required for the purpose under Section 80, Civil P.C. and unless protected by the Court in the meanwhile the respondents would undergo irreparable and irremcdial loss of possession of the mining leases involving a huge waste of labour, machinery and other resources of equipments of immense value hardly capable of being remedied by payments of money as compensation. The High Court passed an order that till three months from the day of the order or one week after the institution of their contemplated suit whichever was earlier, the Government of the State of Orissa should refrain from disturbing the petitioners' possession over the mining areas in question and that thereafter, the order would cease to have effect. In these facts, their Lordships observed that Article 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application and that the directions had been given only to circumvent the provision of Section 80 of the Civil Procedure Code and that was not within the scope of Article 226. It was further observed that an interim relief can be granted only in aid of and an ancillary to the main relief which may be available to the party on final determination of his rights in suit or proceedings. We are disposed to think that the learned single Judge was not wrong when he made directions that Usmangani as well as M/s. Roshanlal Inderlal both are permitted to ply their vehicles on Bambora-Fatehnagar route till the matter is reconsidered by the Tribunal. The second contention raised by Mr. Munshi is also devoid of force and deserves to be rejected. There is no infirmity in the order of the learned single Judge when he set aside the order of the Tribunal as well as of the R.T.A. and remanded the matter for re-consideration to the Tribunal and gave a direction that Usmangani and M/s. Roshanlal Inderlal are permitted to ply their vehicles until the matter is re considered by the Tribunal.

15. For the reasons mentioned above, both the appeals have no force and they are, accordingly, dismissed. In the circumstances of the case, the parties shall bear their own costs of these appeals.


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