G.M. Lodha, J.
1. The Rajasthan State Road Transport Corporation (hereinafter 'the Corporation'), has filed this writ petition against the decision of the State Transport Appellate Tribunal, Jaipur with the following prayer:
that this Hon'ble Court may kindly be pleased to accept this writ petition, call for the record of the case and issue a writ of certiorari or any other appropriate writ, direction or order in the nature thereof quashing and setting aside the impugned order of the Tribunal dated the 5th September 1980 (Annexure 3) and the said order be quashed and set aside and the resolution of the Regional Transport Authority dated the 8th May, 1980 pronounced on May 26, 1980 be restored and grant of the permit to the petitioner be maintained, and the renewal of the permit of the respondent No. 3 be refused.
Issue any other appropriate writ, direction, or order in the nature thereof granting suitable relief in the facts and circumstances of the case.
2. It would be necessary to first mention the facts giving rise to this writ petition. The non-petitioner No. 3, Jhumar Mal Mahta, was holding a permit upto 18th January, 1980 for the non-temporary stage carriage permit on Bhadra-Hissar via Adampur route. Non-petitioner No. 3 filed an application for grant of renewal on September 26, 1976 Under Section 58(2) of the Motor Vehicle Act, 1939 (hereinafter called 'the Act). This application was published in the Gazette on 28th January 1980 and objections were invited within a period of 30 days. No objections were filed. A meeting of the Regional transport Authority Bikaner was convened on March 6, 1981. The agenda was notified on 9th January, 1980 and had contended the item about the consideration of this application. The Regional Transport Authority did not decide the question of renewal of the non-petitioner No. 36 of the permit on March 6, 1980, because of non clearance of passenger and goods taxes and postponed the consideration. The Corporation applied for grant of a new permit on this route on March 12, 1980. On May 8, 1980, the Regional Transport Authority considered the question of renewal application for permit of the non petitioner No. 3 and the new application of the Corporation, The Regional Transport Authority resolved on May 8, 1980, vide a resolution which was announced on May 26, 1980, that in view of the provisions of Section 58(2) and Section 47(I-H), the Corporation has to be given preference, l he renewal application was therefore, rejected and the permit was granted to the Corporation.
3. The non-petitioner No. 3 then filed an appeal before the Tribunal the Tribunal in the appeal reversed the decision of the Regional Transport Authority. It held that it is not a proper case where the preference can be given to the Corporation. In its opinion, the Corporation was not vigilant.
4. The Corporation has challenged the above judgment of the Tribunal.
5. A perusal of the judgment of the Tribunal would show that first, the Tribunal extracted the proviso to Section 58(2) of the Act which reads as under:
Provided also that other conditions being equal an application for stage carriage permit by a State Transport Undertaking, as defined in Section 68-A, whether an application for renewal or a new application, shall be given preference over all other applications for renewal.
The Tribunal then mentioned that the only point, which it is able to show is that it has offered a latest model vehicle while that of the non-petitioner appellant is below prescribed Model, earlier in the year 1977, the Corporation has moved an application (Annexure 1) that it was not interested in getting the permit on this route. The Tribunal then took note of the fact that the Corporation was indifferent in as much as it did not take place to sumbit application for permit within time against the renewal application of the non-petitioner No. 3.It was observed that it was only by chance that the appellant-non-petitioner's application for renewal was not decided prior to the moving of the application for permit by the Corporation. It then took note of Annexure 7 which was produced before the Tribunal, by the non-petitioner No. 3 which showed that the Corporation often does not avail of the permit granting to it.
6. The Tribunal then considered that the Corporation was not vigilant and the private operators are very vigilant about the routes. The Tribunal then held that since the Corporation had no explanation for the delay in the submission of the application for a new permit, it cannot claim preference over the non-petitioner No. 3 who has been plying on this route for a considerable time and whose renewal cannot be refused except for good grounds.
7. The important question canvassed by Mr. Munshi, the learned standing counsel for the Corporation, before this Court, was that the Corporation was entitled to preference irrespective of so called delay, because whatever the reason might have been, when the case came up before the Regional Transport Authority finally, the application of the Corporation was pending and as the principle of simultaneous consideration applied its was immaterial, why the case was adjourned by the Regional Transport Authority, argued Mr. Munshi. Reliance was placed by Mr. Munshi on the judgment of this Court in Delux Roadways Sangaria v. State of Transport Appellate Tribunal Rajasthan and Ors. S.B. Civil Writ Pet. No. 1130/80 decided on September 25, 1980, Per Hon. D.P. Gupta J. I have given my thoughtful consideration to the above decision of this Court. It is true that in this decision this Court has taken the view after taking note of the observations of the Supreme Court in the various cases, that if a renewal application is not considered when it became due for consideration and for any reason, the consideration is postponed, then the application of the Corporation or any one submitted thereafter but before the actual consideration by the Regional Transport Authority of the renewal application; cannot be dismissed without consideration, and the principle of simultaneous consideration would apply, if that application is pending.
8. Mr. Maheshwari, the learned Counsel for the non-petitioner No. 3, tried to distinguish the judgment on a number of grounds but on a thoughtful consideration of the entire matter, I am of the opinion that the right of consideration of the application for grant of permit cannot be denied in the present case, to the Corporation. All said and done, the earlier adjournment or postponement of the consideration of the renewal application on March 6, 1980 was due to the fact that the complete taxes were not paid by the non-petitioner and that being so, the non-petitioner No. 3 cannot be allowed to take advantage of his own failure by insisting that the decision should have been given on that very day and in any case, the application of the Corporation for grant of permit thereafter cannot be considered. However, the question which yet requires consideration is whether the refusal of the tribunal to give preference to the Corporation suffers from any error apparent on the face of the record warranting interference in writ petition. Undoubtedly, the jurisdiction of the Tribunal in appeal is co-extensive with that of the Regional Transport Authority and therefore, there is no error of jurisdiction, if the Tribunal on consideration of all relevant facts, reversed the decision of the Regional Transport Authority. The only point to be considered is whether the facts which were considered by the Tribunal were irrelevant non existent or extraneous.
9. I have already held in Satyanaraln v. S.T.A.T. and Ors. 1980 W.L.N. 571 as under:
Undoubtedly, the Appellate Authority had jurisdiction and this Court can interfere only if it finds that either it has acted in excess of jurisdiction or in absence of jurisdiction or there is any error apparent on the face of the record. Even if, two views are possible to be taken, this Court would not interfere under Art. 226 of the Constitution, simply because the other view which could have been taken would have been better or more proper, that would be reducing the jurisdiction of this Court by converting it into an appellate forum which the legislature never intended.
10. The Tribunal was conscious of Clause (2) of Section 58 of the Act which it extracted in the judgment and then it compared whether the other conditions were equal. The Corporation can claim preference only if the other conditions are equal, as the proviso, itself, in the opening portion mentions it. It would thus be evident that the requirement of the other conditions being equal is a condition precedent for giving preference to the Corporation. Though I have mentioned above, the principal reasons which weighed with the Tribunal, I shall again extract them separately in order to discuss, whether any one of them is irrelevant or extraneous. The first reason is, that the Corporation in the year 1977 expressly mentioned that it was not interested in obtaining the permit at the time of the earlier renewal and coupled with this, the application was not given in time for grant of fresh permit. The mere fact that in the year 1977, the Corporation expressed its disinterestedness in getting the permit on this route would not have sufficient cause, I would have accepted the contention of Mr. Munshi. that the Government, at that time, took a decision not to apply for fresh permits of this nature and later on, there was change in the Government and consequent change in its policy. But I find that this history has been given by the Tribunal to enforce its finding of indifference disinterest, and lack of vigilance of the Corporation. Undoubtedly, as the facts stand, the non-petitioner No. 3's permit was valid only upto 18th January, 1980 and he applied for renewal of permit on 26th September, 1979. It was published in the Rajasthan Gazette on 28th January, 1980 inviting objection within a period of 30 days. The meeting of the Regional Transport Authority was called on March 6, 1980 and before that, on January 9, 1980, this agenda containing the renewal application of the non-petitioner No. 3 was notified. During all this period which is of about more than 2 months, the Corporation did not file application for grant; of permit The Corporation did not even file objections to the renewal of permit of non-petitioner No. 3 within 30 days, from the publication of the notice in the Rajasthan Gazette on 28-1-80. Even then the agenda was notified, the Corporation slept over its rights of preference under the proviso extracted above and even failed to attend the meeting of 6th March, 1980. These facts are not in dispute and that being so, the lack of vigilance, indifference and disinterestedness of the Corporation in the matter of obtaining the permit on this route and objecting to the renewal of permit of non-petitioner No. 3 is not latent but patent and speaking in this case.
11. That being so, how can it be said that the Tribunal committed any error apparent on the face of the record in taking notice of this important factor for holding that other conditions between the parties were not equal. According to him, it was a relevant circumstance and fact for the decision of the appeal and the tribunal was justified in taking note of it for reversing the decision of the Regional Transport Authority.
12. The Tribunal has also correctly taken note of the mistake of the Regional Transport Authority in basing its judgment on the proviso to Section 58(2) which was incorrect and in which the clause 'other condition' being equal' was omitted. The Regional Transport Authority quoted the proviso to Section 5e(2) of the Act as under:
Provided further that an application for stage carriage permit by a State Transport Undertaking, as defined in Section 68-A whether an application for renewal or new application, shall be given preference over all other applications for renewal.
13. It is clear that the clause 'other conditions being equal', has been wrongly omitted in it and that has entirety changed the complexion and dimensions of the case before the Regional Transport Authority. In fact, if the provision would have been in the language quoted by the Regional Transport Authority then no option is left with the Transport Undertaking whether the Regional Transport Authority or the State Transport Appellate Tribunal but to grant permit by preference to the Corporation. In other words, if that would have been the language the Corporation claims a permit, it has to be granted as the matter of course. I am therefore, convinced that this serious mistake of the Regional Transport Authority was correctly taken note of by the Tribunal.
14. Yet another reason given by the Tribunal that Section 47(1)(H) of the Act utilized by the Regional Transport Authority for giving preference to the Corporation is a provision which applies at the time of grant of permits and not while a comparison is made between an applicant for renewal and applicants for fresh permits; is also relevant and required attention and correction in appeal.
15. It is not without significance that Tribunal took note of the fact that the non-petitioner No. 3 was plying on this route for a considerable time and the renewal should not be refused unless there are good grounds on account of which the Corporation can be given preference. The Tribunal took care of the model also and directed that the non-petitioner No. 3 would replace the existing vehicle by a vehicle of prescribed model within a period of two months. All these facts showed that the Tribunal was conscious not only of the legal position but also of its duty to provide convenience, to the traveling public. In view of the above finding of mine, it is not necessary for me to enter into the arena of long drawn controversies raised by the learned standing counsel for the Corporation petitioner, and Mr. Maheshwari, the learned Counsel for the non-petitioner No. 3; based on a series of judgments relating to the principle of simultaneous consideration, the principles for consideration of renewal application before the date of expiry of the permit, the period for filing fresh application and renewal applications, the question when the vacancy occurs and when a fresh application can be filed and such other submissions; because I am of the view that in view of my finding, the decision and discussion on them are avoidable as it would be unnecessary.
16. I would, however, certainly like to emphasise that their Lord ships of the Supreme Court in D. Natraja Mudaliar v. S.T.A. : 1SCR551 have, in a very emphatically words, pointed out that a right of renewal is not a bounty the relevant observations read as under:
The Authority must remember that a permit holder has an ordinary right of renewal unless it is shown that outwiehging reasons of public interest lead to a contrary result. Permits are not bounty but right, restricted reasonably by the Motor Vehicles Act.
17. There is yet another weighty reason for non interference in this writ petition. As the facts stand, the renewal has been made for three years and the Corporation will again have a chance to apply for fresh permits in time before the renewal application is considered. On September 5, 1980, the Tribunal renewed the permit on the condition that the non-petitioner No. 3 would replace its existing vehicle by a vehicle of prescribed model within a period of two months, failing which renewal shall stand revoked. The Corporation has challenged this order after five months during which period the non-petitioner No. 3 purchased the bus No. RSC 2150 of the prescribed model and replaced it. Even thereafter, the Corporation waited for another three months when the replaced bus was being plied on the route. It would thus be seen that the Corporation was not only indifferent, and non-vigilant initially upto March 12, 1980, when it applied for grant of a permit after all the events including the meeting of the Regional Transport Authority took place on March 6, 1980 but it again repeated the same indifference and lack of vigilance after the judgment of the Tribunal. In Trilock Chand v. H.B. Munshi : 2SCR824 , their Lordships of the Supreme Court were plea sed to observe as under:
This Court will not enquire into belated and stale claims or take note of evidence of neglect of one's own rights for a long time. The party claiming fundamental rights must move the court before other rights of innocent parties emerge by reason of delay on the part of the person moving the court.
18. In the instant case, if the Corporation wanted to claim preference under the proviso to Section 58(2) of the Act it was its duty to have remained vigilant at all stages from first to the last. A vigilant assertion of legal right is a welcome conduct under the rule of law and especially for invoking Article 226 of the Constitution. A non-vigilant, indifferent assertion of preferential right and that too by not a rustic villager but by a well recognised Corporation, cannot be entertained more so, when it proposes to dislodge a bus operator, who has on account of this indifference purchased a bus for replacement after the decision of the Tribunal for fulfilling the conditions of that judgment, which has now been challenged by the Corporation.
19. For all these reasons, I am firmly of the opinion that no interference is called for in the decision of the Tribunal and consequently the writ petition is dismissed without any order as to costs.