M.L. Jain, J.
1. The facts of this writ petition are that out of the scope of two not temporary stage carriage permits on the Hanumangarh Town Hanumangarh Junction City Bus Service route (hereinafter called the petitioner's route) the petitioner holds one such permit valid upto 24th March, 1978. One other permit already granted is also in existence. On dated 12 10-1976, the Regional Transport Authority, Bikaner, howeser, increased the scope from two to four and on 1-11-1976 granted temporary permits in favour of non-petitioner Bhupendrasingh and one Banwarilal. Upon revisions, the State Transport Appellate Tribunal quashed the increase in the scope and the grant of temporary permits by its order on 4-12-76. However, the RTA persisted and on 14-12-76 increased the scope to six stage carriage permits against which one of the existing operator. M/s Mahalaxmi Transport Company preferred a revision, which is still pending with the STAT and yet the R.T.A. invited applications for the grant of non-temporary permits. 39 applications were received and all of them were published in the Rajasthan Rajpatra on 28-4-77. While such applications were pending consideration, some four applications for grant of temporary permits were filed in the last week of December, 1976 in the office of the RTA. On 28 12-76, the RTA directed that the applications for temporary permits be put up in the next meeting. The petitioner, who is an existing operator sent a telegram to the Chairman of the R.T.A. on 29-12-76 that 'no temporary permit could be granted pending the applications for the grant of non-temporary permits. However, the RTA ignored the telegram and the provisions of Motor Vehicles Act Section 62, Sub-Section (1), Proviso one, that a temporary permit shall, in no case, be gat anted in respect of any route or area specified in an application for the grant of a new permit under Section 46 or Section 54 during the tendency of the applications, & its Secretary prepared a note on 23-2-77 calling a circulation note and sent it to Jaipur to the R.T.A. who by its order dated 25-2-77 granted three temporary permits over the petitioner's route. Being aggrieved by the grant of the said three temporary permits, the petitioner preferred an appeal before the STAT under Section 64(1)(f) of the said Act challenging the grant of the said permits on the ground that pending consideration of the applications for non-temporary permits, no temporary permit could be granted and also on the ground that the purpose mentioned in the application did not disclose any particular need as required by Section 62(1)(c) of the said Act. He had also applied for stay and an ad interim stay was granted on 5-4-77, only one person Bhapendra singh was operating the route as the other two had not availed of their permits. The said stay order was confirmed on 14-4-77.
2. However, on 12-5-77, the STAT dismissed the appeal upon the preliminary objection that the appeal was not maintainable under Section 64(1)(f). This petition is directed against the aforesaid order of the STAT dated 12-5-77 and also against the order of the Regional Transport Authority, Bikaner dated 25-2-77 by which it granted the aforesaid temporary permits. No reply has been filed by the opposite party and therefore, arguments were heard on the petition.
3. The position of law as stated in Section 62 is clear and admits of no doubt that when an application for a non-temporary permit is pending, no temporary permit can be granted for the same route. But the R.T.A. ignored this provision inspite of the fact that its attention was drawn by the petitioner by his aforesaid telegram and in its order stated that there was a scope of 6 permits and four vacancies existed and it was in the public interest to issue temporary permits while applications for non-temporary permits were pending consideration. Under Section 64(1)(f), a person who is providing existing facility for transport and has opposed the application for grant of a permit, can file an appeal against the grant of permit. The learned STAT was of the view that the telegram could not be considered an opposition within the meaning of the said Section 64(1)(f). The learned Tribunal gave the following reasons for its view:
1. The petitioner was aware of the applications made by the non-petitioner and yet he contended himself with simply sending the aforesaid telegram instead of filing objections.
2. Though there is no ground to doubt the genuineness of the telegram, yet the telegram being a sort of a general suggestion, cannot be considered to be an opposition made against any particular applicant,
3. Though the petitioner was even entitled to make an oral opposition & where the petitioner was not aware of the applications he was not even bound to make an opposition in the meeting of the RTA, but the petitioner has not said that he was not aware of the applications.
4. The learned Tribunal appears to have felt that if the appeal was not maintainable, it could be treated as a revision but it did not do so because as stated by it the learned Counsel expressed the view that his appeal may not be treated as such. But the petitioner has alleged in his petition that his counsel had submitted before the learned Tribunal that in case it did not entertain the appeal, it could be dealt with as a revision. This averment stands unchallenged.
5. Now, it is obvious from the bare reading of the 1st proviso to Sub-Section (1) of Section 62 that the R.T.A. has violated the express provision of the law and, if it was not prepared to hold that the appeal was competent, the learned Tribunal was duty bound, on its own, to treat the appeal at least as a revision. The learned Tribunal, therefore, has failed in its duty, which was cast upon it be Section 64A of the Act. However, upon a consideration of the arguments and the facts of the case. I am of the view that the appeal was perfectly competent and the view of the learned Tribunal that the telegram-can not be considered as a opposition was erroneous on the very face of it. The Act does no where provide for any particular mode of opposition to the grant of temporary permit. As held 'in Benny Kumar v. State A.I.R. 1959 Assam 171, even an implied deposition is permissible. The' contents of the' telegram do unmistakably imply and are nothing but, a strong opposition to the grant of temporary permit in violation of the law. There was, an express legal objection and so clear that no RTA could have afforded to ignore if it correctly exercised its authority. T have not been able to discover any provision or precedent which entitled the RTA to import the considerations of 'public interest' in order to avoid the legal impediment to the grant of temporary permits in a case like this.
6. The learned Counsel for the non petitioner submitted that according to Section 88 of the Evidence Act, there was no presumption that the telegram was sent by the petitioner and, therefore, the RTA could not take the telegram as an opposition made by the petitioner. This point was not raised before the STAT and cannot be permitted to be raised before this Court. Moreover, this argument further does hold no water as the petitioner had filed an affidavit before the STAT that it was he who had sent the telegram. This the davit was not rebutted and, therefore, it is not now open to the non-petitioner for contend that since the telegram cannot be presumed or was not proved to have been sent by the petitioner, the STAT could not consider it an opposition made by the petitioner.
7. I, therefore, find no force in any of the contentions raised by Mr. Banshilal on behalf of the non petitioner. The order of the learned Tribunal is wholly indefensible and deserves to be quashed. It has caused substantial injury without any remedy.
8. The learned Counsel for the petitioner submitted that the order of the RTA was a void order & should also be quashed by this Count. Whether in view of the amended Article 226, Clause (3) it is permissible to do so, or not, I leave the question open, but I would certainly like to make an ancillary order for the stay of the operation of the order of the R.T.I. as the non petitioner cannot be allowed to continue to derive benefit out of a permit obtained in the aforesaid manner.
9. Consequently, this petition is allowed and a writ of certiorari shall be issued quashing the impugned order dated 12-5-77 made by the learned S.T.A.T. The S.T.A.T. is further directed to entertain the appeal and hear it on merits. Meanwhile, the operation of the order of the. RTA shall be stayed and the non-petitioner Bhupendra Singh shall forth with stop plying this vehicle under the temporary permit obtained by him by the R.T.A. in pursuance of its order dated 25-2-77. The cost of this petition shall be Rs. 200/- payable by the non-petitioner No. 3 to the petitioner.
10. Before parting with the case would like, to say that the procedure of taking decisions on a so called (circulation note has become inept as there can be no question of circulation when there is only one member of the RTA. The RTA should not pass orders just upon the, office note in cases in which an opportunity of objection or opposition or hearing is require under law to be given to the parties concerned.