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N. Pappu Reddiar and ors. Vs. the Regional Transport Authority, - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberWrit Petn. Nos. 2025, 2534 (W.P. No. 2534 of 1971 converted to C.R. Petition 637 of 1972 as per o
Judge
Reported inAIR1973Mad271; (1973)1MLJ52
ActsMotor Vehicles Act - Sections 46, 47, 57(2), 57(3), 64, 64-A, 68 and 68(2); Madras Motor Vehicles Rules - Rules 153-B and 155-A
AppellantN. Pappu Reddiar and ors.
RespondentThe Regional Transport Authority, ;salem and ors.
Cases ReferredMaharashtra State Road Transport Corporation v. Babu Goverdhan Regular Motor Service. Warora
Excerpt:
.....of respondent defective - under rule 153 b respondent failed to submit prescribed fee on or before date of receipt - application of respondent defective ab initio and hence cannot be considered as application - defect goes into very root of matter and original as well as appellate authorities lacked jurisdiction to consider representation on such defective application - revision petition allowed. - - if his other main contention that the application for grant is not entertainable is accepted, then it is clear that by the presence of such applicant in the proceedings and further consideration of his representations by the appropriate authorities compels him to answer the same and also take the risk of being screened if the unqualified representator has better qualifications. the fee..........similar in the other two writ petitions excepting for the nature of the route and the different dates prescribed for the forwarding of the application and entertainment of the representations thereon. those petitions are for the issue of writs of prohibition restraining the original authority from entertaining the defective application in the sense that the prescribed fee was not paid in the first instance as called for and that representations on such a defective application cannot be heard on the only ground that the payment has been made before the date of hearing of the representations.2. the main contentions of the petitioner are that the petitioner is aggrieved because his rights as an operator and as an applicant are jeopardized if he is set against an applicant whose.....
Judgment:
ORDER

1. In W. P. Nos. 2025 and 2916 of 1971 writs of prohibition are sought and in W. P. No. 2534 of 1971, now converted into a Civil Revision Petition, a writ of certiorari is asked. It is agreed that the facts in W. P. No. 2534 of 1971 as it was originally filed may be looked into for purposes of appreciating the contentions of parties. The petitioner is a transport operator. The Regional Transport Authority Salem, invited applications under Section 57(2) of the Motor Vehicles Act for the grant of stage carriage permit on the Town Service route Namakkal to Ponneri and fixed the last date for receipt of applications in due form as December 11, 1970. The petitioner and four others, including the 1st respondent, were applicants for the grant. It is common ground that the petitioner sent the application in due form as also the necessary proof of payment of the prescribed fee which should accompany such applications. Thereafter the applications were notified under Section 57(3) of the Act and in the said notification it was made clear that the 1st respondent did not pay the prescribed fee. The notification under Section 57(3), as usual, invited representations and fixed December 31, 1970, as the last date for filing such representations. It is also not disputed that the 1st respondent did not pay the prescribed fee prior to the December 11, 1970, but is said to have paid the same only on December 30, 1970. The petitioners and other who were applicants and who were therefore obliged to make representations on the date of hearing, namely, December 31, 1970, brought to the notice of the Regional Transport Authority about the defect in the application of 1st respondent. But the Regional Transport Authority entertained the application of the 1st respondent and granted the permit to the 1st respondent. The claim of the petitioner is that even in the award of marks under Rule 155-A of the Madras Motor Vehicles Rules, the Regional Transport Authority did not properly apply the rule or the guidelines set in Section 47 of the Act. But in these proceedings the merits have not been canvassed and it is therefore unnecessary for me to deal with it. As against the grant made by the Regional Transport Authority in favor of the 1st respondent the petitioner filed an appeal before the State Transport Appellate Tribunal the 2nd respondent herein, and again reiterated that the application was not in due form and was defective ab initio as the prescribed fee has not been paid within the period of limitation prescribed. But the State Transport Appellate Tribunal confirmed the grant in favor of the 1st respondent and it appears that it decided the appeal even on merits against the petitioner. The present Writ Petition now converted into a Civil Revision Petition is directed against the order of the State Transport Appellate Tribunal ignored the main noticeable feature in the case that the application of the 1st respondent itself was defective and therefore was not maintainable by the original authority and if the defect goes to the root of the matter, there was no jurisdiction for either the original authority or the appellate authority to hear the representations of the 1st respondent on such a defective application and decide thereon. The facts are similar in the other two Writ Petitions excepting for the nature of the route and the different dates prescribed for the forwarding of the application and entertainment of the representations thereon. Those petitions are for the issue of Writs of prohibition restraining the original authority from entertaining the defective application in the sense that the prescribed fee was not paid in the first instance as called for and that representations on such a defective application cannot be heard on the only ground that the payment has been made before the date of hearing of the representations.

2. The main contentions of the petitioner are that the petitioner is aggrieved because his rights as an operator and as an applicant are jeopardized if he is set against an applicant whose application is defective in the eye of law and as prescribed by the Act and the rules made thereunder and such a defect goes into the very root of the matter resulting in lack of jurisdiction on the part of the original authority to entertain the said application. The second objection is that Rule 153-B(ii) framed under the Motor Vehicles Act in the State of Madras is imperative and non-compliance with the same as provided therein makes the application defective ab initio and hence it is no application at all on which a decision could be taken after the same is entertained. The third objection is that the prescription as to time is mandatory and non-compliance with it is fatal to the application and consequently it cannot be looked into for any purpose. Contending contra learned counsel for the respondents will say that the rule is only directory and on a strict reading of the rule it is seen that if a treasury receipt is produced on or before the date of the receipt of the representations specified in the publication under Section 57(3) of the Act, then such an application is entertainable and a decision could be taken thereon notwithstanding the initial defect in the application, namely, it was not accompanied by the prescribed fee when it was presented as directed. Factually it is said that this argument was not put forward in the manner it is done before this court and therefore such an objection ought not to be entertained. Lastly, it is contended that the petitioner in each of these petitions cannot be said to be a person aggrieved.

3. I shall briefly refer to the relevant statutory provisions. Section 46 of the Motor Vehicles Act, dealing with application for stage carriage permit, prescribes certain particulars and the manner in which such application has to be made to the appropriate authority. Section 46(f) is residuary in nature as it refers to such other matters as may be prescribed. Under Section 68, the State Government is given the power to make rules for the purpose of carrying into effect the provisions of the Act. Inter alia the rule making power includes the prescription of a fee to be paid in respect of applications for permits and Section 68(2)(c) prescribes the forms to be used for such purposes. In the form prescribed, one of the items enumerated therein runs as follows:

'I/We enclose cash/cheque/challan/money-order receipt for Rs.................. being the prescribed fee.'

It is not in dispute that the court-fee has been prescribed as Rs. 250/- for such applications for the grant of permits. Rule 153-B(ii), made in 1965, which is relevant for our purposes, may be extracted for ready reference:

'Where an application for the grant of or the counter-signature of a stage carriage permit or a public carrier's permit made in the prescribed form, but not accompanied by the prescribed fee shall not be rejected on that account, but the omission shall be specifically pointed out in the publication of the application to be made under subsection(3) of Section 57 of the Act so that the applicant may have an opportunity of submitting a Treasury receipt for the prescribed fee on or before the date for the receipt of representation specified in the publication, failing which the application will stand rejected:'

This rule undoubtedly contemplates that an application for the grant of a stage carriage permit amongst others should be accompanied by the prescribed fee, but negatively it is stated that if it is not so accompanied it shall not be rejected on that account, but the omission shall be specifically pointed out in the notification under sub-section(3) of Section 57 so that the applicant may have an opportunity of bridging the gulf by submitting the treasury receipt for the prescribed fee on or before the date for the receipt of the representations. In the light of the above statutory provisions the contentions have to be considered.

4. Undoubtedly the petitioner is a person aggrieved. If his other main contention that the application for grant is not entertainable is accepted, then it is clear that by the presence of such applicant in the proceedings and further consideration of his representations by the appropriate authorities compels him to answer the same and also take the risk of being screened if the unqualified representator has better qualifications. The induction into the field of hearing in a quasi-judicial proceeding of a party who cannot be a party and who has no right to make representations and who has the chance of stealing a march over other applicants who have an indisputable right of audience, certainly prejudices the other applicants. In this sense the legal rights of the other applicants are affected since the proceedings and the ultimate decision in the presence of the other party who cannot represent, really deprived them of something and has adversely affected them-See Ealing Corpn. v. Jones, (1959) 1 All ER 286. I am therefore of the view that the petitioner in each of these petitions is not a person who is merely dissatisfied with the decision but one whose legal right has to an appreciable extent been affected.

5. The next question is whether the introduction of the expression 'submitting a treasury receipt on or before the date for the receipt of representation' in Rule 153-B(ii) creates such a departure from the sense of the text of the body of the rule or the conditions set out in the prescribed form for the application of grant, which would enable the Regional Transport Authority to entertain an application, under which the applicant paid the fee belatedly. Undoubtedly the Form prescribes that the fee should be paid by one or the other of the modes expressly mentioned. One such method of payment of fee is to produce the challan for payment and to forward the challan along with the application. This is normal incident. If the challan accompanies the application, there is no difficulty. The other three methods of payment (viz.) cash, cheque or Money Order receipt postulates remittance of the fee as prescribed, prior to the forwarding of the application. The difficulty comes in, in a case where the Treasury challan is submitted on or before the date of receipt of the representation specified in the publication made under Section 57(3). The petitioner's case is that such a challan if it evidences payment of fee beyond the date originally fixed for submission of applications for the grant, then it is one which is not contemplated in law. The fee prescribed is just like count-fee payable under the Madras Court Fees Act. No plaint, appeal, memorandum or any other paper which has to be duly stamped is received administratively, nor such records considered by courts for a decision. Therefore an application for which the necessary fee has not been paid as directed is no application at all. The quasi-judicial authority which has to decide on such a record has no jurisdiction to look into it as it has only one option left to it, namely, to reject it. Rule 153-B has the force of law as it prescribes one of the particulars and the manner in which applications for stage carriage permit have to be made, under Section 46 of the Act. That rule contemplates rejection of the application if the treasury receipt evidencing payment of fee is not produced before the representations are heard. Therefore it has to be considered whether payment of fee into the Treasury after the date fixed for submitting applications and a challan in token thereof is sufficient compliance of the prescription. If this contention is accepted, then we will be introducing something new into the rule, which courts cannot do. The last portion of Rule 153-B(ii), though essentially enabling has a significance as well. The treasury challan referred to therein can only refer to the payment made prior to the date fixed under Section 57(2). If that were not so, anomalous results may follow. A person may apply for the route and make a decision whether to pursue the same or not till the date of hearing of the representations under Section 57(3). He can pay the fee a day or two before the date fixed under Section 57(3) and qualify himself to make representations along with others who strictly followed the mandate of paying the fee on or before the date fixed under Section 57(2). Sections 57(2) and 57(3) subserve two different purpose. The date fixed under Section 57(2) is the date on or before which the prescribed fee has to be paid. Section 57(3) read with Rule 153-B(ii) enables the applicant to produce the treasury challan, if it has not been enclosed already, on the date of hearing of representations made under Section 57(3). But for this, there is no departure from the strict mandate in the date of payment of the prescribed fee. There may be cases where the applicant for reasons beyond his control is unable to get the challan, though the made the payment, before he forwarded his application under Section 57(2). In those cases he is reminded of the defect in the application and he is given an opportunity to rectify the same and qualify himself to make representations by producing the challan. This challan obviously confirms the earlier lawful payment of fee. If the fee is paid beyond the date fixed under Section 57(2), then it is no payment of fee as prescribed or as required. Ismail, J., had to consider a similar aspect in W. P. No. 3648 of 1967 M/s. Swami Naidu and Co. v. Regional Transport Authority, Coimbatore. The rule which came up for consideration was Rule 148-A which reads as follows:

'An appeal under Section 64 or an application under Section 64-A of the Act shall be in the form of a memorandum in duplicate setting forth concisely the grounds of objection to the order which is the subject-matter of the appeal or the application and shall be accompanied by the original or a certified copy of the order and a Treasury receipt for the fee prescribed for the appeal or application as the case may be.'

In a situation where the fee prescribed for the appeal has not been paid before the expiry of the period of limitation and when a challan evidencing such payment but beyond the prescribed date was produced, the learned Judge held that the appellate authority was right in dismissing the appeal and observed that the fee should have been paid on or before the date on which the appeal should have been filed and as there was no such payment, there has not been a proper presentation of the appeal. The decision in the Maharashtra State Road Transport Corporation v. Babu Goverdhan Regular Motor Service. Warora, : [1970]2SCR319 is not apposite to the facts of the instant case. That was a case where there was no provision for rejection of an application for grant of a stage carriage permit on the only ground that the application was defective for want of full particulars. The Supreme Court in such circumstances said:

'We are unable to find any provision in the statute giving a power to the transport authorities to reject an application summarily on that ground; but, we have already emphasized that the application must give the necessary information on the various particulars and matters enumerated in the form prescribed for such purpose. It is to the interest of the applicant himself to give full and clear information because he stands the risk of the permit not being granted to him for lack of information on certain matters. But this is quite a different thing from the power of the authority to reject an application forthwith on the ground that the application is defective.'

In our case the authority has the power to reject the application if the fee is not paid. Not only for the reason that there is such an express provision here but also because such an application, unaccompanied by evidence as to payment of the prescribed fee, is no application in the eye of law, I am of the view that the authorities were not justified in law to entertain the same and make a decision thereon.

6. With the above background it is not quite necessary to deal fully with the factual contentions that the objection in the form stated in this Court has not been raised earlier. This position is no doubt denied by the petitioner. Even otherwise if there is no jurisdiction for the Regional Transport Authority or the appellate authority to entertain the application and deal with it, any order passed thereon should be deemed to be non est and unenforceable. In this view the rule nisi is made absolute in each of these petitions. The order of the appellate authority in W. P. No. 2534 of 1971 is set aside and the matter is remitted to the file of the Regional Transport Authority, Salem, to deal with the applications for the grant of stage carriage permits on the Town Service route in question without considering the application of the respondent and hearing his objections. In so far as W. P. Nos. 2025 and 2916 of 1971 are concerned, writs of prohibition as prayed for shall issue. There will be no order as to costs.

7. Order accordingly.


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