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The Anamalais Bus Transports (P) Ltd., Pollachi Vs. Tiruppur Karurtransports (P) Ltd.. Tiruppur and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberWrit Petn. Nos. 625, 1213 and 1214 of 1963 and C.M.P. No. 3226 of 1963
Judge
Reported inAIR1966Mad470
ActsMotor Vehicles Act, 1939 - Sections 42, 43-A(2), 45, 46, 47, 47(1), 47(2), 47(3), 48, 48(1), 55(2), 55(4), 55(5), 55(7), 57, 57(3), 64-A and 64(1)
AppellantThe Anamalais Bus Transports (P) Ltd., Pollachi
RespondentTiruppur Karurtransports (P) Ltd.. Tiruppur and ors.
Cases ReferredHanuman Transport Co. Ltd. v. Meenakshi G. Ramabhai
Excerpt:
.....act (iv of 1939), section 47--regional transport authority inviting applications for granting route permits--many applied--subsequently idea given up and applications dismissed--validity of dismissal--maintainability of appeals field to state transport appellate tribunal against order ; by a notification applications were invited by the concerned regional transport authority for the grant of two permits to run express buses between c and p. a number of applications were received and they were duly published under section 57(3) of the motor vehicles act (iv of 1939). when they were taken up for consideration, they were adjourned, as in the meantime, the state transport department had commenced an express service between c and n on which the route c to p entirely overlapped. another..........approved, on 10-3-1959, opening of an express route, coimbatore to palani with two buses. the regional transport authority, madurai in whose jurisdiction a portion of the route lies gave its concurrence to it. by notification dated 14-5-1960, applications were invited for grant of two permits as express service. forty two applications were received, which were published under s. 57(3) of the motor vehicles act. when the applications were taken up for consideration on 27-10-1960, they were adjourned as, in the meantime, the state transport department had commenced an express service between coimbatore and nagarcoil with two buses on which the route coimbatore to palani entirely overlapped. the state government added two more buses on this express route and approved a scheme of.....
Judgment:
1. The Regional Transport Authority, Coimbatore, approved, on 10-3-1959, opening of an express route, Coimbatore to Palani with two buses. The Regional Transport Authority, Madurai in whose jurisdiction a portion of the route lies gave its concurrence to it. By Notification dated 14-5-1960, applications were invited for grant of two permits as express service. Forty two applications were received, which were published under S. 57(3) of the Motor Vehicles Act. When the applications were taken up for consideration on 27-10-1960, they were adjourned as, in the meantime, the State Transport Department had commenced an express service between Coimbatore and Nagarcoil with two buses on which the route Coimbatore to Palani entirely overlapped. The State Government added two more buses on this express route and approved a scheme of running a total of eight buses on the route Coimbatore to Nagarcoil. Another route Coimbatore to Udumalpet via Kinathukadavu and Pollachi which was opened subsequently, also overlapped substantially, the route Coimbatore to Palani.

The trips of all the buses running on different sectors of the route Coimbatore to Palani have also since October 1960 been increased consequent on the general set up in the daily mileage of the buses to 200 allowed by the Government. When the applications were finally taken up for hearing on 24-3-1962, the Regional Transport Authority, Coimbatore, considered it unnecessary, therefore, to proceed further with the grant of permits for the express route Coimbatore to Palani. Some of the applicants opposed this view of the Regional Transport Authority, while the Anamalais Bus Transports (P) Ltd, Pollachi objected to the grant of permits on the ground that the route was not necessary. The Regional Transport Authority however rejected all the applications on the view that while considering an application for a stage carriage permit, it was bound to have regard, among other things, to other passenger transport services between the places to be served, that in view of the additional services already provided on the route and of the operation of an express service by State Transport Department between Coimbatore and Nagarcoil, which completely covered the route in question, the circumstances, which originally led to the notification of the route, no longer existed and that it would not be in public interest to put two express buses on the route.

(2) Tiruppur Karur Transports (P) Ltd, Tiruppur, and V. C. K. Bus Service (P) Ltd., Coimbatore, who were among the applicants for permits, preferred appeals to the State Transport Appellate Tribunal. The Anamalais Bus Transports (P) Ltd, on its application was impleaded as one of the respondents to the appeals. It held that the appeals were maintainable and on the view that the Regional Transport Authority, while considering the applications under S. 48, could not vary its earlier resolution deciding to grant permits on the route and that it could do so and revise its earlier order only by another resolution under S. 47(1) of the Act, allowed the appeals directing the Regional Transport Authority to dispose of all the applications afresh. Since the Tribunal was remitting the matter to the Regional Transport Authority, it expressed no opinion on the merits. The Anamalais Bus Transports (P) Ltd, seeks by W. P. 625 of 1963 to quash the Tribunal's order. V. C. K. Bus Service (P) Ltd., and Tiruppur Karur Transports (P) Ltd, also seek by writ petition No. 1213 and 1214 respectively to quash a part of the order of the Tribunal, on the main ground that the Tribunal had no jurisdiction to remit the matter thereby giving the Regional Transport Authority a fresh opportunity to initiate proceedings under S. 47 of the Act, and that in any case, it was wrong in directing the Regional Transport Authority to consider all the applications over again without restricting the fresh disposal to the parties before the Tribunal.

(3) The petitioner in W. P. 625 of 1963 urges (1) that the appeals before the Tribunal did not lie, (2) that the Tribunal could not allow the appeals without reversing the finding of the Regional Transport Authority that the route was not necessary and (3) that the Regional Transport Authority cannot hear the applicants who did not prefer appeals. On the first ground, the contention is that since the applications for permits were rejected by the Regional Transport Authority on the ground that the route itself was not necessary, there was no right of appeal. This is on the assumption that a right of appeal is available only if the application for a permit is rejected because of the grant of a permit to another applicant. If no one was granted a permit and there was a total rejection of all the applications, the petitioner would say that S. 64(1)(a) does not confer a right of appeal to such applicants. In order to have such a right of appeal, urges the petitioner, refusal to grant a permit must be consequent upon grant of permit to another and a mere refusal is not within the ambit of that provision.

No doubt this was the view taken by Srinivasan, J. in S. Khader Sheriff v. State Transport Appellate Tribunal, W. P. 498 etc. of 1960 (Mad). The learned Judge held that a reading of clauses (a) and (f) of s. 64(1) side by side of to that result. In his view clause (a) is controlled by clause (f) with the result that if only there was a grant of a permit to some person, an appeal could lie and that if no one was granted a permit, no appeal would lie. I do not however have myself to decide this question, since in Sambandam v. Khader Sheriff, W. A. Nos. 1 to 3 of 1962: , arising from that judgment,

Ramachandra Iyer, C. J. And Ramakrishnan J. felt unable to share his view. They held that what determined the right of appeal under clause (a) of S. 64(1) was the refusal of a permit to an applicant and that it is not necessary for enabling an appeal to be filed that there should have been an order granting a permit. Not only is the judgment of the Division Bench binding on me, but, if I may say so with respect, I find myself in entire agreement with this view and the reasoning on which it was founded. The petitioner's first point fails.

(4) On the second ground what the petitioner argues is that whereas the Regional Transport Authority, on the circumstances supervening since October 1960, found that the route Coimbatore to Palani was not necessary, the Tribunal without finding to the contrary and in fact without expressing any opinion on that matter, allowed the appeals and that in doing so, it acted without jurisdiction. But the factual basis for this contention is not entirely accurate and it fails to take note of the fact that in effect the Tribunal set aside the finding of the Regional Transport Authority that the route was not necessary. That result of the Tribunal's order did not of course follow on a consideration of the question of necessity for the route on its merits but on its legal view as to the scope of the jurisdiction of the Regional Transport Authority in a proceeding under S. 57. The view on which the Tribunal set aside the entire order of the Regional Transport Authority was expressed thus:

"It is open to the R.T.A. to revise its earlier order deciding to open the route by appropriate proceedings under S. 47(1). But when the R.T.A. under S. 47(1) does not revise the earlier order, it cannot refuse to grant the permit when considering the applications received. If the R.T.A. comes to the conclusion that it is necessary to open the route, the R.T.A. should consider the claims of all the applicants who have applied in time."

(5) If that view is right, the Tribunal was entitled to say that the Regional Transport Authority acted in excess of its jurisdiction in giving a finding on the question of necessity for the route in proceedings under S. 57. When the Tribunal was of the view that the Regional Transport Authority itself had no jurisdiction in such proceedings to consider and decide the necessity for the route, it naturally, in the appeals arising out of the orders of the Regional Transport Authority, declined to go into the merits of the question and merely set aside the finding in respect of it as without jurisdiction. So far, the Tribunal was clearly right.

(6) It is however argued that the Tribunal's view on the jurisdiction of the Regional Transport Authority on that question is not correct. It is said that Abdul Mateen v. Ram Kailash, AIR 1963 SC 64, is distinguishable. The question I have therefore to decide is whether, when a Regional Transport Authority resolved under S. 47 to open a new route and then called for applications for a stage carriage permit, on the route, it is competent, in proceedings to consider and dispose of such applications under S. 57, to go back upon its earlier resolution as to the necessity of the route, reverse its view and dismiss the applications on the ground that the route has since been found, in view of certain circumstances, to be not necessary.

(7) The relevant statutory provisions may first be noticed. Ch. IV of the Motor Vehicles Act 1939, provides for control of transport vehicles. S. 42 forbids owners of transport vehicles from using or permitting the use of them in any public place except with permits and in accordance with their conditions authorising the use of the vehicles. Under Sec. 45, permits should be applied for to the prescribed authority. The particulars which an application should contain are mentioned by Section 46. One of them is the route or routes to which the application relates. Section 47(1) specifies the matters which the prescribed authority which is the Regional Transport Authority, should have regard to in considering an application for a stage carriage permit. The Regional Transport Authority should take into consideration representations made by certain persons and the authority referred to. Sub-section (2) is not material for present purposes, Sub-section (3) reads:--

"(3) A Regional Transport Authority may, having regard to the matters mentioned in sub-section (1), limit the number of stage carriage generally or of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region."

Section 48(1) is the most important one which conferes power upon the Regional Transport Authority to grant a stage carriage permit. The sub-section says that subject to the provisions of S.47, a Regional Transport Authority may, on application made to it under S. 46, grant such stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such permit. The proviso to this sub-section directs that no such permit shall be granted in respect of any route not specified in the application. The rest of the sub-sections of S. 48 relates to the conditions which the Regional Transport Authority should attach to the permit when it grants it. Section 57 prescribes the procedure in applying for and granting permits. An application for a stage carriage permit should be made not less than six weeks before the date on which it is desired that the permit shall take effect or if the Regional Transport Authority appoints dates for the receipt of such applications, on such dates. The applications received in that manner are to be made available for inspection at the office of the Regional Transport Authority and the authority shall publish the applications or the substance thereof in the prescribed manner with a notice of the date before which representations in connection with them may be submitted and also the date on which the applications and representations received will be considered. The proviso to subsection (3) is as follows:--

"Provided that, if the grant of any permit in accordance with the application or with modifications would have the effect of increasing the number of vehicles operating in the region, or in any area or on any route within the region, under the class of permits to which the region, under the class of permits to which the application relates, beyond the limits fixed in that behalf under sub-section (3) Section 57 or sub-section (2) of S. 55, as the case may be, the Regional Transport Authority may summarily refuse the application without following the procedure laid down in this sub-section."

Sub-sec. (4) is to the effect that representations not received in time and a copy of which is not furnished simultaneously to the applicant by the representator shall not be considered by the Regional Transport Authority. Under sub-section (5), the Regional Transport Authority shall dispose of the application of a public hearing at which the applicant and the person making the representations shall have an opportunity of being heard either in person or by a duly authorised representative. Sub-section (7) says that when a Regional Transport Authority refuses an application for a permit, it shall give to the applicant in writing its reasons for the refusal. Then follow the provisions relating to the renewal of permits, cancellation and suspension of permits, transfer of permits, temporary permits and then to appeals and revisions in certain matters and subject to certain conditions to the prescribed authority.

(8) From these provisions, it is clear that no permit is granted except on an application. An application for a permit should specify the route in respect of which it is asked for. No permit shall be granted in respect of any route not specified in the application. In disposing of an application for a permit, the Regional Transport Authority should have regard to the several matters required to be taken into account including the interests of the public generally, the advantages to the public of the service to be provided, the adequacy of other passengers transport services, the benefit to any particular locality or localities, likely to be afforded by the service and the conditions of the road included "in the proposed route". The power to grant a permit should be exercised subject to the provisions of Section 47, which means, among other things, that not only the matters mentioned in S. 47(1) and the representations referred to therein, should be taken into consideration but it has to be exercised also subject to the limit of the number of stage carriages generally or of any specified type as specified by the Regional Transport Authority under S. 47(3) for which stage carriage permits may be granted in any specified route, region or area. Once that limit is fixed, the proviso to S. 57(3) is clear that the Regional Transport Authority, in considering an application for a stage carriage permit, shall not exceed that limit.

A route is not defined in the Act but its meaning according to the Oxford Concise Dictionary is "Way taken in getting from starting point to destination". Apart from the provisions which I have noticed, there appears to be no particular provision relating to opening of a new route. In the light of those provisions, a proposal for a new route may emanate from an applicant for a permit or from a Regional Transport Authority, or the State Government may under Section 43-A(2) direct the opening of a new route on a consideration of the matters specified in Section 47(1). Section 43-A(2) includes also power for the State Government to permit additional stage carriages to be put or to reduce the number of stage carriages on any specified route. That is to say it can direct the increase or decrease of number of stage carriages at a specified route. This power is of course exercised on a consideration of the matters set forth in S. 47(1). The Regional Transport Authority also is given power under S. 47(3) to limit the number of stage carriages but this power seems to be wider than what is contained in S. 43-A(2), for the power of the Regional Transport Authority to limit the number of stage carriages is not confined to any specific route but extends to any region or specified area and to limit the number of stage carriages generally or of any specified type.

(9) Having regard to the scheme of the statutory provisions, noticed by me, especially the fact that S. 48(1) is expressly made subject to Section 47, and Section 57 merely provides for the procedure to be followed in disposing of applications for permits, the Supreme Court in AIR 1963 SC 64 at p. 69 held:

"We therefore agree with the High Court that where limit has been fixed under S. 47(3) by the Regional Transport Authority and thereafter the said Authority proceeds to consider applications for permits under Section 48 read with S. 57, the Regional Transport Authority must confine the number of permits issued by it within those limits and on an appeal or revision by an aggrieved person, the appellate authority or the revisional authority must equally be confined to the issue of permits within the limits fixed under Section 47(3)."

Because S. 48(1) is subject to Section 47 and Section 57 is only procedural, the Supreme Court pointed out that in proceedings under Section 57, it is not open to the Regional Transport Authority to go behind the limit resolved upon by the Regional Transport Authority under Section 47(3). The Supreme Court at the same time observed that the Regional Transport Authority could however independently of the proceedings under Section 57 act under Section 47(3) and resolve to supersede its earlier resolution fixing a certain limit or otherwise revise it but it could not do so under Section 48 read with Section 57. On the analogy of this reasoning, the Tribunal in this case thought that if sub-section (1) was substituted for sub-sec. (3) of Section 47, it would follow that when a Regional Transport Authority has decided under S. 47(1) to open a new route, it cannot go back upon its decision in proceedings under Sec. 48 read with Section 57. I am unable to accept the Tribunal's view.

(10) In AIR 1963 SC 64, the question for decision was whether the Bihar Government acting under Section 64-A of the Bihar Act 27 of 1950 amending the Motor Vehicles Act 1939 had the power to increase the number of permits for which applications had been invited by the Regional Transport Authority. A certain route was notified and applications were invited for two stage carriage permits on the route. The appellant before the Supreme Court got one of the permits. An appeal against the grant failed and at the instance of one of the aggrieved applicants the Patna High Court quashed the order of the Appellate authority. When the matter was disposed of afresh by the Appellate authority, it cancelled the permit that had been granted by the Regional Transport Authority to the petitioner before the High Court. The appellant went before the Government under S. 64-A in exercise of which it could call for records of any proceedings by any authority or officer subordinate to it and after examining the record, pass such orders as it thinks fit. The Minister for Transport upheld the order of the Appellate Authority but at the same time taking the view that an additional service would add to the facilities provided to the public, directed the grant of a permit to the appellant, an operator who had proved to be a desirable operator.

Another applicant who had also made an application under S. 64-A and whose application had been dismissed, filed a writ petition before the High Court. It was contended that the State Government had no power when dealing with an application under Section 64-A to increase the number of permits to be granted from two, which was the limit fixed by the Regional Transport Authority, to three and that its order granting the third permit to the appellant before the Supreme Court was without jurisdiction. This contention was accepted by the High Court and the appellant went up to the Supreme Court. The Supreme Court held that the number of permits to be granted Regional Transport Authority to two, neither that authority nor the appellate authority or revisional authority in proceedings arising out of section 48 read with S. 57 could go back upon that limit and increase the number of stage carriages and grant permits therefore. As I said the Supreme Court's view, on a consideration of the scope of the statutory provisions, was that the appellate or revisional jurisdiction was no wider than the jurisdiction of the Regional Transport Authority and that the limit once fixed by the Regional Transport Authority could be varied only by an independent proceeding under Section 47(3). In that case, the Supreme Court was not concerned with the opening of a new route as distinguished from fixing the limit to the number of stage carriages for which permits may be granted in a region or area or on any specified route.

While a specific power is given by Section 47(3) to so limit the number of stage carriages, there are no express words, as far as my attention has been invited to, in any of the provisions of the Motor Vehicles Act which confers specific powers for opening new routes or closing existing routes except of course Section 43-A(2) which relates to the power of the State Government. But it is clear from the provision requiring the applicant to mention the route for which the permit is required, and the matters mentioned in sub-section (1) of Sec. 47, and the terms of Section 48 conferring power on the Regional Transport Authority to grant permits, and the procedural Section 57, that the Regional Transport Authority has to decide, in disposing of an application for a stage carriage permit, whether the route, to which the permit relates, is necessary. The power to decide that question is not derived by the Regional Transport Authority from Section 47(3), which is only confined to fixation of limit of stage carriages for which permits may be granted. When an application is made for a permit for a certain route to be opened, the right to decide that the route is necessary is, as I think, inevitably incidental to or implied in the power to grant the application. In that respect, this power to decide the necessity of a route is quite unlike the power under S. 47(3). When an application for a stage carriage permit is not required to mention the limit of the number of stage carriages, which is not also among the considerations which should govern the grant or refusal of an application for a permit except in respect of the proviso to Section 57(3) the limit under Section 47(3) has in view of Section 48(1), necessarily to be fixed separately and independent of applications for permit and proceedings arising from them. But that, in my opinion, is not the case with the opening of a new route which, when a permit is applied for a certain route to be opened, becomes a part of the consideration in which the applications have to be accepted or rejected in the light of the matters in and representations under Section 47(1). In my opinion, the Regional Transport Authority will, therefore, have jurisdiction in proceedings under Section 48 read with Section 57 to decide the necessity for the route for which permit is asked for.

(11) It remains to consider whether it makes any difference if the Regional Transport Authority has already arrived at a decision as to the necessity of a route. Once it is found, as I have that the question, whether a route for which a permit is applied, can and indeed has to be, gone into by the Regional Transport Authority, while considering the applications for permit, it appears, to my mind to be too much of a technicality that because the Regional Transport Authority has already decided the necessity of a route, that will prevent the same authority from reconsidering the question while deciding the application for a permit. I am, therefore, unable to accept the view of the Tribunal that the Regional Transport Authority has acted in excess of its jurisdiction in reconsidering the question of necessity of the route in the proceedings under Section 57. In my opinion, the Regional Transport Authority was well within its jurisdiction in reconsidering its earlier decision. The petitioner should succeed not on the second ground in the precise form in which it was raised, but on my view just expressed on the jurisdiction of the Regional Transport Authority.

(12) The last ground of the petitioner appears to be covered by an authority in its favour. If the matter were res integra, I would be inclined to the view that where the Regional Transport Authority rejected the applications for permits on the ground that the route itself was not necessary and on appeals by some of the applicants the Tribunal allowed them, it would be within the competence of the Tribunal to direct the Regional Transport Authority to hear all the applications and dispose of them all afresh. This is because what the Regional Transport Authority under Section 48 read with S. 57 has to do is to choose between various applicants who have made applications to it under Section 46 and the disposal of the applications was not on such a choice. But the Supreme Court in Hanuman Transport Co. Ltd. v. Meenakshi G. Ramabhai, C. A. No. 794 of 1963 (SC) held that where a Regional Transport Authority rejected an application of an appellant before it, that application came to an end and if such an applicant did not appeal, the Tribunal, while allowing the appeals filed by other aggrieved applicants, had no jurisdiction to direct the Regional Transport Authority to consider and dispose of afresh even the applications which had been rejected but no appeals therefrom were preferred.

That of course was not a case, where all the applications were rejected by the Regional Transport Authority on the ground that the route was not necessary. That was a case of a grant of a permit to one of the rival applicants and the Tribunal on appeal by one of the unsuccessful applicants allowed it directing the Regional Transport Authority to consider all the applicants including that of the applicant who had failed to appeal. Even so, the principle of C. A. No. 794 of 1963 (SC) would appear to extend and apply to such a case as the one under consideration. I accept the third ground of the petitioner.

(13) On behalf of the petitioners in the other two petitions one further ground was raised, namely, that the Tribunal was not justified in remitting to the Regional Transport Authority the consideration of the grant of permits in the light of its independent decision on the question of the necessity of the route. But on the view I have taken in W. P. 625 of 1963 it is unnecessary to consider this question.

(14) W. P. 625 of 1963 is allowed and the Tribunal's order is quashed. W. P. 1213 and 1214 of 1963 are dismissed. No costs in any of them. The Tribunal will dispose of the appeals afresh.

(15) Order accordingly.


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