Skip to content


Tvl. Cholan Roadways, Corporation Ltd. Kumbakonam and Etc. Etc. Vs. Tvl. Ajantha Travels, Pondicherry and Etc. Etc. - Court Judgment

LegalCrystal Citation
SubjectMotor vehicles;Constitution
CourtChennai High Court
Decided On
Case NumberWrit Petn. Nos. 16772, 17081, 17087, 18005 and 18119 etc. of 1991; 1419, 1521, 2046, 2182, 3288, 114
Judge
Reported inAIR1995Mad129a
ActsMotor Vehicles Act, 1988 - Sections 14, 64, 80, 89(1), 90, 164 and 180; Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992 - Sections 1 and 6(2); Motor Vehicles Act, 1939 - Sections 73(3); Constitution of India - Article 226
AppellantTvl. Cholan Roadways, Corporation Ltd. Kumbakonam and Etc. Etc.
RespondentTvl. Ajantha Travels, Pondicherry and Etc. Etc.
Appellant Advocate M. Palani, Sr. Counsel and ;Mrs. Radha Gopalan, Adv.
Respondent Advocate M. Krishnappan, Adv. and ;P. Krishnamurthi, Government Pleader
Cases ReferredMithilesh Garg v. Union of India
Excerpt:
.....garg v. gopalan would urge that either under section 89(1)(b) or even under section 90 of the act providing for appeal and revision, the essential pre-requisite to be satisfied by a person desirous of filing an appeal or revision is that he should be a person aggrieved. there is no provision under the act like that of section 47(3) of the old act and as such no limit for the grant of permits can be fixed under the act. to countenance such a right in the existing operators as well as state transport undertakings would, im my opinion, completely negate the legislative policy embodied insection 80 of the motor vehicles act, 1988, which has also been incorporated in the abovesaid decision. , batch, will come to the aid of the respondents and therefore they are entitled to take shelter under..........petitioner/ corporation (hereinafter referred to as the corporation) as against the order of the state transport authority, pondicherry (hereinafter referred to as the authority) granting variations in favour of the 1st respondent in each of the writ petitions plying on the respective inter-state route.2. the short facts of the case are as follows:-- the 1st respondent in each of the writ petitions are private operators in the union territory of pondicherry having primary permits granted by the authority. they made applications for variation under section 57(3) of the motor vehicles act, 1939. the same were notified inviting representations from the sector operators. the corporation filed representations opposing the variation on the ground that the variation applied for overlaps on.....
Judgment:
ORDER

1. All the above Writ Petitions raise a common question for consideration. By consent of both parties, all of them were heard together. The Writ Petitions were filed as against the order of the State Transport Appellate Tribunal, Pondicherry (hereinafter referred to as the Tribunal) dismissing the appeals filed by the respective petitioner/ Corporation (hereinafter referred to as the Corporation) as against the order of the State Transport Authority, Pondicherry (hereinafter referred to as the Authority) granting variations in favour of the 1st respondent in each of the writ petitions plying on the respective inter-State route.

2. The short facts of the case are as follows:-- The 1st respondent in each of the writ petitions are private operators in the Union Territory of Pondicherry having primary permits granted by the Authority. They made applications for variation under Section 57(3) of the Motor Vehicles Act, 1939. The same were notified inviting representations from the sector operators. The Corporation filed representations opposing the variation on the ground that the variation applied for overlaps on the approved scheme and as the name of the operator is not found in Annexure II to the said approved scheme,the said applications for variation filed by the operators are not maintainable and consequently prayed for rejection of the same.

3. When the said applications were taken up for consideration by the Authority, the Motor Vehicles Act, 1988, came into force. In the hearing held for considering the applications for variation filed by the private operators, the Corporation was heard and it reiterated its objections made in its representations filed pursuant to Section 57(3) of the old Act notification. It was contended before the Authority on behalf of the Corporation that the route for which the extension now sought for was covered by the scheme route and no variation could be granted on any overlapped route pursuant to the directions of the Hon'ble Supreme Court. The Authority allowed the applications filed by the operators by its proceedings impugned in these writ petitions. Aggrieved by the said order, the Corporation filed appeals before the Tribunal. The Tribunal rejected the appeals on the ground that the appeals under Section 89(1)(b) of the Motor Vehicles Act is not maintainable. The relevant passage of the order of the Tribunal runs thus:

'Now this appeal filed under Section 89(1)(b) of the Motor Vehicles Act reads as follows:

'any person aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof.....'

Since the appeal has been filed under this section, I find that the appellant is not an aggrieved party, because he was not the applicant before the State Transport Authority, but, he was only objectors before the State Transport Authority, and his objection over-ruled by the State Transport Authority. The language of Section 89(1)(b) of the Motor Vehicles Act would clearly show that the appeal itself is not maintainable.'

Aggrieved by the said order, the Corporation has filed the present writ petitions under Art. 226 of the Constitution.

4. According to the Corporation, though it is conceded in paragraph 5 of the affidavitfiled in support of W.P. No. 16772 of the 1991 that in the case of Union Territory of Pondicherry, as against the grant of variation, no appeal is provided under the Act or under the Rules framed thereunder, the Tribunal is vested with revisional jurisdiction under Section 90 of the Act and even if appeal is incompetent under Section 89 of the Act, the Tribunal is bound to set at right the illegal order of the Authority under the revisional jurisdiction.

5. The respondents filed counter-affidavits in the writ petitions. According to them, either for filing an appeal under Section 89(1) of the Act or even to file a revision petition under Section 90 of the Act, the sine qua non is that the person must be aggrieved so as to invoke the said provision and that under the provisions of the Motor Vehicles Act, 1988, relating to the grant of a permit including variation, the same has been liberalised so as to say 'permit for all'. Hence, it is contended by the respondents that an existing operator cannot be said to be an aggrieved person under the terms of the Motor Vehicles Act, 1988, as has been held to be so in the decision of the Supreme Court reported in Mithilesh Garg v. Union of India, : AIR1992SC443 . Three Judges Bench, which has also been followed by this Court in W.P. No. 10284 of 1992 dated 12-8-1992 and W..P. No. 10579 of 1992 dated 17-8-1992. Therefore, it is contended that the writ petitions are not maintainable. It is further stated that even as regards the plea that the sectors sought for variation overlaps certain notified routes, the provisions of the Tamil Nadu Act 41 of 1992 saves all the grant of variation overlapping either draft or approved schemes made from 4-6-1976 onwards. In view of the said provisions also, the Corporation is precluded from raising any objection that the variation granted ovrelaps certain sectors of notified routes, and the Corporation cannot be said to be an aggrieved person even on this score.

6. I have heard Mr. M. Palani, learned counsel for the Corporation, Mr. V.T. Gopalan, learned Senior Counsel and Mr. M. Krishnappan, learned counsel for the contesting 1st respondents and Mr. P. Krishnamurthi, learned Govt. Pleader, Pondichaerry, for the 2nd respondent/Authority.

7. At the time of hearing Mr. M. Palani raised three legal contentions, which are as follows:

(a) Whether the appeal filed by the Corporation under Section 89(1)(b) of the Act as against the order granting variation by the State Transport Authority, Pondicherry, in favour of the private operators is maintainable or not?

(b) If the appeal is not maintainable, whether the Tribunal is not entitled to invoke the revisional jurisdiction available under Section 90 of the Act, when it is brought to the notice of the Tribunal that the order of the State Transport Authority, Pondicherry, granting variation on a part of the notified route is illegal and without jurisdiction?

(c) Whether the Corporation are aggrieved persons or not, as against the order granting variation in favour of the existing operators?

8. With regard to the first contention, Mr. M. Palani would submit that Section 89 of the Motor Vehicles Act provides for the appeal as against the grant of variation in favour of the existing operators by the third parties. However, the Tribunal in these batch of cases held that the appeal is not maintainable under this section. According to the learned counsel for the Corporation, the reasonings of the Tribunal or the contentions of the learned counsel for the respondents in this case are not tenable in law. The phraseology 'any person' and the term 'any variation' used therein is wide enough to cover any person whether it is a permit holder or third party and consequently, the appeal preferred by the Corporation as against the order of the Authority granting variation is maintainable.

9. Mr. M. Palanai invited my attention to the decision of this Court reported in A. Vedachala Mudaliar v. State of Madras, : AIR1952Mad276 wherein a similar question arose for consideration by this Court where the appeal provision under the old Act is a subject matterof inteprelation. The relevant passage relied on by Mr. M. Palani is reproduced hereunder (at p. 279, para 4 of AIR):--

'..... He also relied upon Section 164 and contended that a party cannot file an appeal against the variation of a condition and therefore the sub-section gives a clue that the order varying the condition is not a judicial order. But to my mind the terms of that section are wide enoguh to confer a right of appeal even on third parties if the variation of a condition in the permit issued to another affects his rights. Section 64 reads:--

'Any person (a) aggrieved by the refusal of the Provincial or a Regional Transport Authority to grant a permit or by any condition attached to a permit granted to him'.

Under Section 64(b) any person aggrieved by any variation of the conditions of a permit can prefer an appeal from the order of the Regional Transport Authority. The petitioner is certainly aggrieved by the variation of the condition as by the change of the timings his financial interests would suffer. But it is stated that I must read the words 'the permit' along with the words 'a permit granted to him' found in Clause (a) and if so read any person can only be the person the conditions of whose permit have been varied. Though this argument has some force I am inclined to hold that Section 64(b) is not confined to the permit-holder the conditions of whose permit have been varied but to any person who is affected by the variation of the conditions in the permit issued to another.....'

Therefore, Mr. M. Palani, learned counsel for the Corporation submitted that the appeal filed by the Corporation is maintainable and the Tribunal is not justified in dismissing the appeal as not maintainable on the threshold itself and consequently it suffers from error of law requiring the intervention of this Court.

10. With regard to the second contention, Mr. M. Palani, learned counsel for the Corporation would submit that even assuming without admitting that the appeal filed by the Corporation is not maintainable underSection 89(1)(b) of the Motor Vehicles Act, the Tribunal is not left with no other remedy to interfere with the order of the Authority when it is shown that the order of the Authority is illegal and without jurisdiction. Therefore, the learned counsel would submit that if the appeal is not maintainable as against the order of the Authority or the Regional Transport Authority granting variation, then Section 90 of the Act provides for revision as against such order.

11. Section 90 of the Motor Vehicles act reads as follows:--

'90. Revision -- The State Transport Appellate Tribunal may 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 against which no appeal lies, and if it appears to the State Transport Appellate Tribunal that the order made by the State Transport Authority or 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.'

Therefore, Mr. M. Palani contended that even assuming that no appeal is provided as against the order of the Authority granting variation, undoubtedly, revision would lie, under Section 90 of the Act. In support of his contention Mr. M. Palani heavily relied on a decision of this Court reported in Pattuk-kottai Azhuagiri Transport Corporation Ltd., v. V.K. Velayutharn & Sons 1922 2 Mad LW 653 wherein at page 657 it is held as follows:

'.....The language of Section 90 of the Act is very wide and all orders of the State Transport Authority or Regional Transport Authority, against which no appeal lies, will be subject to the power of revision under that section .....'

12. Elaborating his submission, it is argued by Mr. M. Palani, learned counsel for the Corporation, that when it is brought to the notice of the Tribunal that the order passed by the Authority is totally illegal and without jurisdiction, the Appellate Authoritybeing vested with the revisional jurisdiction under Section 90 of the Act is duty bound to set at right the illegality or error of law committed by the lower authority in view of the vast power vested upon it under Section 90 of the Motor Vehicles Act. The position of law on this aspect, according to Mr. M. Palani, is no longer res integra and the same is concluded by the Hon'ble Supreme Court in the decision reported in Nilkantha Prasad v. State of Bihar, : AIR1962SC1135 of the said decision, it has been held as follows:--

'The Regional Transport Authority not having done its duty under the law, the Appeal Board was entitled, when the record was before it, to revise the order of the Regional Transport Authority, even if the appeal was incompetent, in view of the vast powers of revision under Section 64A.'

13. The above aspect of the matter was also considered on to occasions by this Court and, this Court held that even if appeal is not maintainable, when the order granting permit is exfacie illegal and without jurisdiction, the Tribunal is bound to set at right the illegality committed by the lower authority under the revisional jurisdiction. S. Natarajan, J., as he then was, rendered a decision on this aspect in C.R.P. No. 4046 of 1984 dated 23-1-1985, holding thus:

'In addition to this finding, it has also to be pointed out that the Regional Transport Authority was clearly in error in granting permit over a route which was included in the draft scheme that had been published. The error was so patent that even if the respondent's appeal was in any way defective, the Tribunal is bound to set right the mistake committed by the Transport Authority. The ratio laid down by the Supreme Court in Nilkanth Prasad v. State of Bihar, : AIR1962SC1135 , will squarely apply to the situation encountered by the Tribunal in this case.....'

14. S. Mohan, J., as he then was, in C.R.P. No. 1937 of 1987, etc. batch in his judgment dated 7-9-1987 held as follows:

'Even if an appeal did not lie, undoubtedlya revision lies and it is in this connection I have to rely on Nilkanth Prasad v. State of Bihar : AIR1962SC1135 , where it is observed :

'In view of the fact, therefore, that the scheme has been notified and route 'AB' had already been granted to the Rajya Transport and/or the State Transport Undertaking, the Regional Transport Authority was incompetent to renew a permit over a route embracing route 'AB'. The Regional Transport Authority not having done its duty under the law, the Appeal Board was entitled, when the record was before it, to revise the order of the Regional Transport Authority, even if the Appeal was incompetent, in view of the vast powers of revision under Section 64A.'

15. The same view came to be expressed in C.R.P. No. 4046 of 1984 by S. Natarajan, J., as he then was, in his order dated 23-1-1985. The learned Judge observed as follows:--

'In addition to this finding, it has also to be pointed out that the Regional Transport Authority was clearly in error in granting permit over a route, which was included in the draft scheme that has been published. The error was so patent that even if the respondent's appeal was in any way defective, the Tribunal is bound to set right the mistake committed by the Transport Authority. The ratio laid down by the Supreme Court in Nilkanth Prasad v. State of Bihar, : AIR1962SC1135 , will squarely apply to the situation encountered by the Tribunal in this case. The relevant passage occurs in para 6 of the judgment and it reads thus:

'The Regional Transport Authority not having done its duty under the law, the Appellate Board was entitled, when the record was before it to revise the order of the Regional Transport Authority, even if the appeal was incompetent in view of the vast powers of revision under Section 64(A).'

Hence, the first contention of Mr. Subramanyam has to fail.

In this case, what was sought to be argued after all is a question of jurisdiction of theRegional Transport Authority to grant counter-signature in Nilgiris District. The entire question pertains to the realm of law as to the scope of Section 14. Therefore, if there is an error of law, certainly, by revisional jurisdition, it could be corrected. In fact, it is conceded that the entire records were there before the Tribunal, both the parties were heard at length and what was argued as purely a question of law without traversing on facts. Hence, I hold that the revision was fully competent.....'

16. Therefore, the Corporation submitted that when the order of the lower authority is assailed on the ground of illegality and without jurisdicion, the Tribunal is not justified in dismissing the appeals summarily on the ground that the appeals under Section 89(1)(b) of the Motor Vehicles Act are not maintainable.

17. With regard to the third contention, it is submitted that the application for variation was filed under the old Act and to the said application, the Corporation filed its representation opposing the variation. The Corporation was also heard by the Authority. It is further contended that when it is a party to the proceedings before the original authority, and the interest of the party, who was heard before the original authority was affected, certainly, in law, the Corporation is an aggrieved person and consequently the plea that the Corporation is not an aggrieved person merely on the basis of the new Act, 1988, is not tenable in law. In the instant case, according to the learned counsel for the Corporation, as the grant of variation is hit by the approved scheme and the scheme being approved for the benefit of the State Transport Undertakings, certainly the Corporation is an aggrieved person either within the meaning of Section 89(1)(b) or under Section 90 of the Act.

18. In support of the above contention, a Division Bench decision of this Court in Review Petition No. 8 of 1993 has been relied on by the learned counsel for the Corporation. The question before the Bench was, whether the Corporation is an aggrieved person or not when a scheme is infringed bythe order of the Transport Authorities. The Division Bench held as follows:

'..... Taking the question of locus standi in the first instance, we find that there is no merit in the contention of learned counsel for the applicant. We have already referred to the fact that the Tribunal dismissed the application of the 1st respondent to implead itself as a party to the appeal on the ground that the matter would be considered under the old Motor Vehicles Act, 1939 and any order in the appeal would only result in only one person being entitled to the permit on the route in question. The said reasoning of the Tribunal was expressly apporved by this Court in its order in the Writ Petition and only because of that, the Writ Petition was dismissed. But, when the Tribunal acted contrary to what was stated earlier and applied the provisions of the new Motor Vehicles Act of 1988 accepting the joint memo of compromise filed by the parties and also taking a wrong view of the ruling in Egappan's case, : [1987]2SCR391 , the 1st respondent it, undoubtedly entitled to challenge the order of the Tribunal, inasmuch as the grant of permit in favour of the applicant herein offends the provisions of the Act as well as the approved schemes..... Hence, there can be no doubt whatever that the 1st respondent has locus standi to maintain the Writ Petition.'

Therefore, Mr. M. Palani contended that the Corporation is an aggrieved person as against the order of the Authority granting variations in favour of the private operators.

19. Mr. V.T. Gopalan, learned Senior Counsel appearing on behalf of the contesting 1st respondent placed strong reliance on the decision of the Supreme Court reported in Mithilesh Garg v. Union of India, : AIR1992SC443 -- Three Judges Bench, for the proposition that the Corporation is not an aggrieved person. It is contended on behalf of the Corporation that this decision of the Supreme Court has no application to the facts of the present case because that case arose under Chapter V of the Act, which deals with the grant of permit and variation on the non-scheme routes, I am unable to give my seal of approval to the said contention of the learnedcounsel for the Corporation for the reasons stated infra.

20. Mr. V.T. Gopalan would urge that either under Section 89(1)(b) or even under Section 90 of the Act providing for appeal and revision, the essential pre-requisite to be satisfied by a person desirous of filing an appeal or revision is that he should be a person aggrieved. 1 agree with the contention of Mr. V. T. Gopalan. To find out whether the State Transport Undertaking or for that matter, any other operator, will be a person aggrieved, Section 80 of the Motor Vehicles Act, 1988, has to be compared and contrasted with Seciion 57 of the Act. The Three Judges Bench of the Supreme Court in the above cited decision held as follows: : AIR1992SC443

'A comparative reading of the provisions of the Act and the old Act makes it clear that the procedure for grant of permits under the Act has been liberalised to such an extent that an intended operator can get a permit for asking irrespective of Ihe number of operators already in the field. Under Section 57 read with Section 47(1) of the old Act an application for a stage carriage permit was to be published and kept for inspection in the office of the Regional Transport Authority so that the existing operators could file representations/objections against the said application. The application, along with objections, was required to be decided in a quasi-judicial manner. Section 47(3) of the old Act further permitted the imposition of limit on the grant of permits in any region, area or on a particular route. It is thus obvious that the main features of Chapter IV 'control of transport vehicles' under old Act were as under:

1. The applications for grant of permits were published and were made available in the office of the Regional Transport Authority so that the existing operators could file representations.

2. The applications for grant of permits along with the representations were to be decided in quasi-judicial manner; and

3. The Regional Transport Authority wasto decide the applications for grant of permits keeping in view the criteria laid down in Section 47(1) and also keeping in view the limit fixed under Section 47(3) of the Act. An application for grant of permit beyond the limited number fixed under Section 47(3) was to be rejected summarily.

6. The Parliament in its wisdom has completely effaced the above features. The scheme envisaged under Sections 47 and 57 of the old Act has been completely done away with by the Act. The right of existing-operators to file objections and the provision to impose limit on the number of permits have been taken away. There is no similar provision to that of Section 47 and Section 57 under the Act. The Statement of Objects and Reasons of the Act shows that the purpose of bringing in the Act was to liberalise the grant of permits. Section 71(1) of the Act provides that while considering an application for a stage carriage permit the Regional Transport Authority shall have regard to the objects of the Act. Seciion 80(2), which is the harbinger of Liberalisation, provides that a Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act. There is no provision under the Act like that of Section 47(3) of the old Act and as such no limit for the grant of permits can be fixed under the Act. There is, however, a provision under Section 71(3) of the Act under which a limit can be fixed for the grant of permits in respect of the routes which are within a town having population of more than five lakhs.'

21. It is thus seen from the above judgment of the Supreme Court that after such comparison, the right of the existing operators to file objections has been taken away. Therefore, when the State Transport Undertaking cannot in law and particularly on the terms of Section 80 of the Act object to the grant of variation, it cannot be, in my view be permitted to object for the first time at Ihe appellate stage by filing an appeal. To countenance such a right in the existing operators as well as State Transport Undertakings would, im my opinion, completely negate the Legislative policy embodied inSection 80 of the Motor Vehicles Act, 1988, which has also been incorporated in the abovesaid decision.

22. I am also unable to agree with the contention of Mr. M. Palani, learned counsel for the Corporation, a that the grant of variation overlapped many approved schemes and as such, the Corporation has the locus standi to file the appeals. The said contention, in my opinion, cannot at ail be countenanced or sustained in view of Section 6(2) of the Tamil Nadu Act 41 of 1992, which specifically provides for grant of a variation even on approved scheme routes. Further, the contention of the learned counsel for the Corporation that the provisions of Act 41 of 1992 would apply only to intra-State operators and not to inter-State operators has been negatived by a Division Bench of this Court in W.P.No. 1221 of 1991, etc. batch dated 30-4-1993.

23. The further contention of Mr. M. Palani, learned counsel for the Corporation, that this Court in W.A. No. 978 of 1993 and Review Application No. 8 of 1993, dated 12-8-1993 held that the Corporation would be an aggrieved person in respect of the grant of permits for routes overlapping approved scheme, cannot also help the Corporation since the grant of permits stand on a different footing from the grant of variations, in that, there can be no grant of fresh permits under Section 6(4) of the Tamil Nadu Act 41 of 1992, whereas under Section 6(2), variations can be granted overlapping the approved scheme routes. I am, therefore, unable to uphold any one of the contentions raised by Mr. M. Palani, learned counsel for the Corporation, and reject the same.

24. As rightly contended by the respective learned counsel for the respondents, the operators are always entitled to take shelter under the Tamil Nadu Motor Vehicles (Special Provisions) Act 41 of 1992. As stated above, this Court in W.P. No. 1221 of 1991, etc., batch dated 30-4-19 93, while upholding the validity of the Tamil Nadu Act 41 of 1992, held that this Act applies to the inter-State operators also. The interpretation placed by Mr. M. Palani on the above judgment is nottenable in law. The judgment of the Supreme Court in : AIR1992SC443 and a Division Bench of this Court in W.P. No. 1221 of 1991 etc., batch, will come to the aid of the respondents and therefore they are entitled to take shelter under the provisions of the Tamil Nadu Act 41 of 1992.

25. For all the reasons stated above, the orders of the Authority as well as the Tribunal are legal and within their jurisdiction and therefore, not liable to be set aside as prayed for by the Corporation. There are absolutely no merits in the writ petitions and therefore, all the writ petitions fail and are dismissed. However, there will be no order as to costs.

26. Petitions dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //