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Bhojraj and Co. Vs. S.T.A.T. and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Writ Petition No. 446 of 1980
Judge
Reported in1980WLN(UC)272
AppellantBhojraj and Co.
RespondentS.T.A.T. and ors.
DispositionPetition dismissed
Cases ReferredVenkateswara v. Secretary Govt
Excerpt:
.....record, justifying the conclusion of temporary need under section 62(1)(c) of the act for issuing temporary permit, as under section 64a of the act, it could make any order in relation to the case before it, which it deemed fit.;the stat has not acted illegally or improperly in the exercise of its jurisdiction so as to cause grave miscarriage of justice when it dismissed the petitioner's revision against the grant of temporary permits to respondents nos. 3 to 5.;writ 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..........transport authority (for short the r.t a), jodhpur and anx. p.10 dated january 8, 1980 of the state transport appellate tribunal (hereinafter referred to as the s.t.a.t.).2. the petitioner is an existing operator of gachlpura to kishangarh via harnava, badu, bhadava, janjiia, bagot, kanwalad, kanpur, karkeri sulemabad, pinglod, khatoli route holding one non' temporary stage carriage permit for the same covered by vehicle no. rjl 3843 validly renewed upto april 4, 1980 the r.t.a at its meeting held on september 14, 1979, opened gachipura ajmer route and fixed a scope of four stage carriage to perform two return services over the same. the petitioner has filed the copy of the resolution dated september 14, 1979 fixing the scope marked as ana pi after 'he fixation of the scope,.....
Judgment:

S.K. Mal Lodha, J.

1. This is a petition under Articles 226 and 227 of the Constication in which the petitioner seeks to quash the orders Anxs. P.7 and P.8 dated September 28, 1979 of the Regional Transport Authority (for short the R.T A), Jodhpur and Anx. P.10 dated January 8, 1980 of the State Transport Appellate Tribunal (hereinafter referred to as the S.T.A.T.).

2. The petitioner is an existing operator of Gachlpura to Kishangarh via Harnava, Badu, Bhadava, Janjiia, Bagot, Kanwalad, Kanpur, Karkeri Sulemabad, Pinglod, Khatoli route holding one non' temporary stage carriage permit for the same covered by vehicle No. RJL 3843 validly renewed upto April 4, 1980 The R.T.A at its meeting held on September 14, 1979, opened Gachipura Ajmer route and fixed a scope of four stage carriage to perform two return services over the same. The petitioner has filed the copy of the resolution dated September 14, 1979 fixing the scope marked as Ana PI After 'he fixation of the scope, respondents No. 3 to 5 applied for the grant of temporary permit under Section 62 (1) (c), of the Motor Vehicles Act (No. IV of 1939) (hereinafter referred to as 'the Act'), Certified copies of the applications moved by respondents No, 3 to 5 have been marked as Anx, P2 P3, P4 and P5. The Secretary, R.T.A. prepared a circulation note dated September 27,1979 and on its basis the RTA passed the order granting temporary permits for four months each. The petitioner has produced the certified copies of the orders passed by the RTA, Jodhpur upon the circulation note marked as Anxs. P7 and P 8. The petitioner preferred revision under Section 64A of the Act against the order granting temporary permits on the newly opened Gachipura-Ajmer route. The STAT dismissed the revision by its order (Anx. P10) dated January 8,1980. The petitioner has filed this writ petition for quashing the orders of the RTA and the STAT granting temporary permits on Gachipura-Ajmer route.

3. I have heard Mr. R.R. Vyas, learned Counsel for the petitioner, Mr. Rajesh Balia, Deputy Government for respondent No. 2 and Mr. B.L. Maheshwari for respondents No. 3 to 5.

4. Learned Counsel for the petitioner contended that from the orders passed by the RTA issuing temporary permits, it is not borne out that there was any particular temporary need for granting the same and that the STAT, in exercise of its revisional jurisdiction could not go into the question that there existed particular temporary need need for granting the temporary permits to respondents No. 3 to 5. In support of his argument, learned Counsel for the petitioner referred to Arvnachalam Pilli v. Southern Roadways Ltd. : [1960]3SCR764 and Hardutt Singh v. S. T. Authority . In Arunachalam Pilli's case, it was observed as under:

It had been strongly urged in this Court on behalf of the appellant that on a proper construction of Section 64A of the Act, there was ample power in the Government of Madras to make an order directing the variation sought in the condition of the permit of the appellant, even though the Regional Transport officer had no jurisdiction to do so. Section 64A empowered the Government of Madras to pass such orders as it thought fit with respect to any order passed or proceedings taken under Chapter IV of the Act by any authority or officer subordinate to it for the purpose of satisfying itself of the legality, regularity or propriety of the order or proceeding, when it had called for the records of the case. In our opinion, Section 64A is a power vested in the State Government by way of revision of orders passed under Chapter IV of the Act by any authority or officer subordinate to it. This is not a power which the State Government could exercise by way of original jurisdiction which was vested elsewhere. In our opinion, although the words 'may pass such order in reference there to as it thinks fit' are wide in expression they do not mean that the State Government could pass an order in exercise of revisional jurisdiction which the authority whose order the Government was revising had no jurisdiction to pass. The State Government could undoubtedly set aside an order of an authority or officer subordinate to it who had no jurisdiction to pass the order in question under Chapter IV but it could not substitute for that order its own order directing the variation in the conditions of the permit of the appellant, it is significant that Section 43, which deals with the power of the State Government to control Road Transport does not mention that such a Government has the power to vary the conditions of a permit, although the various powers conferred by that Section are fully specified, including the power to vary the notification issued under the Section. If the Act had intended to give the power to the State Government to vary the conditions of a stage carriage permit granted to a particular person it would have specified such a power in this section. The authority which is empowered to vary the conditions of a permit is stated in Section 48A which certainly is not the State Government. Under the Act, therefore, no such authority was vested in the State Government and the words in Section 64A 'as it thinks fit' must mean within the ambit of the provisions of the Act.

The principal question before their Lordships of the Supreme Court for consideration was whether the Regional Transport Officer had the power to vary the conditions of the permit to ply the stage carriage. After considering the provisions of Section 64A of the Act, as amended in Madras, it was held that power under Section 64A of the Act vested in the State Government could not be exercised by way of original jurisdiction, which was vested elsewhere. In Hardutt Singh's case , Section 64A and 64 of the Act came up for consideration. In that case, the order of the STAT by which it declined to incerfere with the order of the RTA on the ground that the petitioner having not availed of the remedy of an appeal could not file the revision application, was challenged. In that connection, it was observed as under:

In defining the revisional jurisdiction of the State Transport Authority the legislature has imposed a two-fold limitation on the powers of that Authority. In the first place, the revisional jurisdiction will be exercisable only in those cases where no appeal would be competent under Section 64 of the Act. The second limitation is that the State Transport Authority will only be entitled to examine the propriety or the legality of the order. In laying down how the State Transport Authority will be exercising its jurisdiction it has, of course, been provided that this jurisdiction may be exercised by the State Transport Authority of its own motion or on an application made by any party. However, the question that has been canvassed before us is whether any party has the right in law to maintain a revision application. Though the State Transport Authority may take action also on an application by a party it cannot, by any means, be said that any party as such has the right to invoke the jurisdiction of the authority.

Existence of jurisdiction in the authority is one thing and how that jurisdiction is be exercised is a quite another matter. The exercise of jurisdiction is a matter of judicial discretion and it will be for the revisional authority to see whether it would exercise it of its own motion or on the necessary facts and other matters being brought to its notice by any party. It is true that a party who cannot bring his case under any of the clauses of Section 64 of the Act will not be competent to maintain an appeal and in a case like the present one the party has to bring its case under Sub-clause (f) of Section 74 of the Act, and in order to entitle itself to file an appeal it should have first filed an objection against the application for grant of permits in accordance with Section 57 of the Act. Therefore, in a case where the party on account of its own lapse, has not filed any objection then he will be entitled to maintain an appeal before the Transport Appellate Authority. In such a case to hold that though that party may not have the right of appeal he would sill be having a right to maintain a revision application may lead to an odd result which may not have been intended by legislature.

It will be for the revisional authority to see whether in any case it should exercise its revisional jurisdiction on any application made before it by any party. In a case where a party of his own lapse has not earned the right to file appeal, very execeptional reasons will to be required to induce the revisional authority to exercise its discretion authority in his favour. In a case where the party has chosen to file any objection against the application to file any objection against the application for permit, it will be a sound exercise of discretion, if the revisional authority declines to exercise its jurisdiction under Section 64A of the Act. Therefore, in our view, the State Transport Authority was not wrong in holding that the petitioners had no right to file a revision application as such, though, as we have already observed some of the reasons given by it are not supportable. However, the learned Counsel for the respondents themselves had not supported the reasoning of the State Transport Authority. Thus, in our view, the State Transport Authority has reached the correct conclusion in refusing to exercise its revisional jurisdiction.

The aforesaid two decisions are of no assistance to the case in hand.

5. The STAT in its order dated January 8, 1980 has observed as under:

Thus it has to be seen whether a temporary need exists on the route along with permanent need in the present circumstances. The route was opened in September 1,1979 and the procedure for granting a non temporary permits being time consuming it is not likely that non-temporary permits would be granted immediately on the route. At present, there is no direct transport facility between Ajmer and Gachipura and some other village falling on the route and a number of villages would be directly connected with Ajmer while there are a few others which do not have any transport facility so far. Even the MLA recommended that temporary permits be granted so long as non-temporary permits were not issued. When once, it has been held that the travelling public requires transport facility between two termini of the route then it can be assumed that temporary need exists till permanent arrangements are made. However, if there are other services available then there may be circumstances which do not justify grant of temporary permits, but in the present case, it has been seen that Gachipura and Ajmer are not directly connected. Gachipura is a Railway station and also a bus centre, where a number of persons come on foot or by some other mode and then proceed on their journey towards different places and Ajmer is one of them. All these matters which have not been mentioned by the RTA in its order can be taken into consideration for coming to a finding about the existence of temporary need.

It summed up its conclusion in regard to the question about the temporary need m the following words:

In the present case, I have already seen above that no non-temporary permit has been granted so far and in order to provide transport facility to the public on the route, the only way of meeting the need immediately is by granting temporary permits. This is a route where temporary need co-exists along with permanent need and the grant of temporary permits in such circumstances is not against any law.

Material portion of Section 64A of the Act is as follows:

The State Transport Appellate Tribunal may, either on its own motion or on an application made to it, call for the record of any case in which an order has been made by a State Transport authority or Regional Transport Authority and in which no appeal lies, and if it appears to the State Transport Appellate Tribunal that order made by the State Transport Authority and Regional Transport Authority is improper or illegal. The State Transport Appellate Tribunal may pass such order in relation to the case as it deems fit and every such order shall be final.

It is clear from Section 64A that the STAT has been empowered to pass such orders in regard to a particular case as it considers proper.

6. The STAT after taking into consideration the relevant factors, reached the conclusion that there was no temporary need requiring issue of temporary permit.

7. In Srinath Sharma v. STAT Tribunal relying on Madhya State Road Transport Corporation, Bairagarh, Bhopal v. S.P. Upadhaya : [1965]3SCR786 it was held by a learned Single Judge of this Court that though the existence of permanent vacancies may not necessarily mean that there is a particular temporary need within the meaning of Section 62(1) c) of the Act, but the existence of permanent vacancy and a temporary need can co-exist and in that case the grant of temporary permit would be permissible. In that case, the RTA found that there was no need of issuing temporary permit. It was also held in that case that whether temporary need requiring issue of temporary permit under Section 62(1)(c) existed or not, was really for the RTA to determine but his decision was subject to appeal and where the RTA found that there was no temporary need requiring issue of a temporary permit, the STAT as the appellate authority would be perfectly competent to decide whether in the facts and circumstances, grant of a temporary permit was justified and hold that there was a temporary need under Section 62 (1)(c). The learned Judge observed as under:

The High Court under Article 226 does not sit as a Court of Appeal over the decision on facts given by the authorities under the Act and unless the authorities have completely misdirected themselves on a point of law or have based their decision on no evidence their decision cannot be interfered with and the finding of the Appellate Tribunal that the travelling public required the grant of temporary permit based on the assessment of various facts and circumstances cannot be interfered with under Article 226 unless it is manifestly perverse or capricious.

8. A somewhat similar question arose before the learned Judge of the Andhra Pradesh High Court in Venkateswara v. Secretary Govt, of Andhra : (1959)IILLJ656AP .

In that case, it was observed as under:

If the order passed in appeal is good, I cannot see how that order can be set aside, because of a defect in the original order. This is not a case where the proceedings before the Regional Transport Authority were vitiated by an error which could not be set right by the appellate tribunal. If the proceedings are tainted in their origin in a manner that the appellate authority is not able to repair, then both the original and appellate order would be bad; but where the defects of an original order can be rectified in appeal and are in fact so rectified there is no reason why the appellate order should not stand. Otherwise, the very purpose of an appeal in most cases would be defeated.

9. Following the Srinath's case and Venkateswara's case : (1959)IILLJ656AP , I am of opinion that the STAT, in exercise of its revisional powers under Section 64A of the Act can rectify the defects, in the order of the RTA when the latter failed to give reasons in regard to the question of temporary need. It was open to the STAT to take into consideration the relevant facts and circumstances, which were on record, justifying the conclusion of temporary need under Section 62(1)(c) of the Act for issuing temporary permit, as under Section 64A of the Act, it could make any order in relation to the case before it, which it deemed fit. The contention of the learned Counsel for the petitioner that the STAT in exercise of its revisional jurisdiction under Section 64A of the Act could not determine question of the temporary need by assessing all the relevant facts and circumstances, is therefore, repelled.

10. No other point was argued by the learned Counsel for the petitioner.

11. The STAT has not acted illegally or improperly in the exercise of its jurisdiction so as to cause grave miscarriage of justice when it dismissed the petitioner's revision against the grant of temporary permits to respondent No. 3 to 5.

12. The result is that this writ petition fails and it is hereby dismissed. No costs.


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