1. These cases raise a common question, the place of Section 47 (3) of the Motor Vehicles Act in the scheme of the Act for the grant of permit for stage carriages. Of the writ appeals, one set of appeals (W. A. 264 of 1967, 285 of 1967 etc), arises from the dismissal of applications under Article 226 of the Constitution for the issue of writs of prohibition restraining the respective Regional Transport Authorities from proceeding further in pursuance of Notifications issued under Section 57 (3) of the Act, and the other set of writ appeals (W. A. 327 of 1967, 400 of 1967 etc) have been preferred against the rejection of petitions for interim orders pending applications for the issue of writs of prohibition to similar effect. The connected writ petitions have also been called up for disposal. Having regard to the question that calls for determination, it is needless to deal separately with every one of the petitions and appeals, the substantial purpose of these cases being to secure writs of prohibition restraining the respective Regional Transport Authorities from proceedings with consideration of the applications for stage carriage permits. The applicants for writs in these cases are existing operators on the related routes. We shall however, briefly refer to the facts in one of the cases, say W. A. 264 of 1967 arising out of W. P. 1994 (1984?) of 1967 and discuss the principles applicable generally.
2. The appellant in W. A. 264 of 1967, is operating one bus on the route Bhavani to Sathy via Jambai and Athani in Coimbatore Dist. and it is stated that this is the only bus plying on the entire route even though in sectors of the route there are several stage carriage operators. When on 14-9-1966 the Regional Transport Authority, Coimbatore invited applications for the grant of one additional permit on the route Bhavani to Sathy. the petitioner, besides filing his application for the grant of the permit to him and making representation under Section 57 (3). filed also his objections to the addition of a new bus on the route on the ground that the route in question was more than adequately served by the existing service. When the petitioner requested the Regional Transport Authority to furnish him with a copy of the order under Section 47 (3) of the Act, fixing the number of buses on the route, the application for a copy of the order, it is stated was rejected on the ground that no order under Section 47 (3) had been passed. Thereupon the petitioner represented by his letter dated 14-7-1967 that unless the maximum number of permits to be granted is fixed under Section 47 (3) the Regional Transport Authority would have no jurisdiction to proceed with the grant of a permit under Section 57 (5). The Regional Transport authority replied thereto stating that no order had been passed under Section 47 (2) and that would be done at the time of consideration of the applications. The Regional Transport authority proceeding further with the matter, fixed the date of hearing of the applications to 22-7-1967. The petitioner thereupon came to this Court praying for the issue of a writ of prohibition restraining the Regional Transport authority from taking further steps pursuant to the notification under Section 57 (2) and also praying for the stay of further proceedings thereunder pending the final disposal of the application for prohibition. The learned Judge, Kailasam, J. before whom this and other petitions for similar relief came up, rejected them at the admission stages, the learned Judge taking the view that there could be no impediment to the authorities proceeding under Section 57, if the number of stage carriages is not limited under Section 47. In some of the orders which are the subject of appeals, the learned Judge would hold that only when a number of buses are restricted on the route, an order increasing the number of permits would be necessary under Section 47 (3) and that in the absence of any such restricting order, the authority is entitled to decide the necessity for increasing the number of buses in the enquiry under Section 57. It is this view that is challenged before us.
3. It is submitted for the petitioners that under the Act the Regional Transport Authority has to decide as an essential prerequisite for considering an application for permit, whether the number of buses on the route should be limited under Section 47 (3) to the existing number or whether it should be increased and if so, by how many buses. It is submitted that under the scheme of the Act in every case where the grant of permit is contemplated there should be first a decision under Section 47 (3) of the Act and then only consideration of the application for permit. Our attention is drawn to the amendment in this State on 28-5-1965 of the Motor Vehicles Rules whereby under Rule 147 (2) an order under Section 47 (3) has been made appealable. It is submitted that the Regional Transport authority by the process of clubbing an enquiry under Section 47 (3) with the one under Section 57 (5) destroys the separate and independent character of the proceeding under Section 47 (3) and in effect deprives also the independent right of appeal by a person aggrieved by an order under Section 47 (3). The stand taken by the Regional Transport Authority before us is found expressed in the counter affidavits filed in some of the cases before us. The plea in general is, that the proposal to introduce additional buses on the routes was on the basis of passenger statistics collected at several bus-stands for a period and an intensive traffic survey, and that the applications called for under Section 57 (2) would be considered after observing the statutory formalities prescribed under Section 57 (3). It is said that consideration of the matter under Section 47 (3) is purely for administrative convenience and the matter can be fully gone into while considering applications under Section 57 (3).
4. It is submitted by the petitioners before us that whatever views were possible, in the matter earlier, the question must now deem to be concluded by the latest decision of the Supreme Court in Jayaram Motor Service v. Rajaratnam, (1967) 2 SCWR 857. We shall be presently referring to that decision. Before discussing the law on the matter, it will be convenient if we set out the relevant provisions of the statute and the existing practice in the State in the matter of granting stage carriage permits. Section 45 provides for an application to be made to the concerned Regional Transport Authority for a permit and under Section 57 (2) an application for a stage carriage permit shall 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 procedure for consideration of the applications is the same whether it is for the grant of a permit for a fresh route or for running additional buses on an existing route. On receipt of applications, the authority publishes proposal for the opening of a new route or for the provision of additional buses on the existing routes, as the case may be, and representations are called for in respect of various matters specified in Section 47 (1). At this stage there is no publication of notice of the applications made under Section 45. The authority, on representations and objections received, fixes the number of stage carriages for the route acting under the provisions of Section 47 (3). If in so limiting it is found that there is no scope for the grant of any additional or new permit the authority formally notifies the application for permit and dismisses it under Section 57 (3). If, however, it decides to grant one or more permits, it proceeds to call for applications under Section 57 (2) and disposes of the matter in accordance with the provisions of Section 57. The practice has been that those persons who are entitled to object under Section 47 (1) are again given an opportunity to make representations as to the adequacy of the existing passenger service or as to the necessity of opening up new routes by means of representations under Section 57 (3). The Regional Transport Authority considers the question once again and if a need arises proceeds to dispose of the applications for permit on their merits. This practice which has been prevalent in this State of giving a second opportunity to the objectors to question the propriety of opening up of new routes or putting up of additional buses on the existing routes has been referred to and condemned by this Court in Regional Transport Authority v. Mettupalayam Connoor Service, 77 Mad LW 278 as not warranted by the terms of the statute. In (1967) 2 SCWR 857 at p. 860, which relates to the resolution of the Regional Transport authority. Ramanathapurarn to introduce new buses on a route and invitation of applications therefor, the Supreme Court described the scheme" of Section 47 of the Act thus-
"The scheme of Section 47 Is that when a person makes an application under Sections 45 and 46 the authority first considers it under Section 47 (1) in the light of the matters set out therein and also the representations, if any, made by the persons mentioned therein. The authority then fixes under Section 47 (3), having regard to the matters mentioned in Section 47 (1), the number of stage carriages for which permits my be granted in the region or on any specified routs within such region. Having fixed the limit, the authority publishes under Section 57 (3) the application with a notice of the date before which representations in connection therewith may be submitted and the date on which such application and representations would be considered. The proviso to Section 57 (3) lays down that if the grant of a permit has the effect of increasing the number of vehicles operating in that region or in any specified area thereof or on the route within such region beyond the limit fixed under Section 47 (3), the authority may dismiss the application summarily. If it does not exceed such limit and the authority decides to grant a permit it has to consider the application and the representations submitted to it in conformity with the procedure laid down in Section 57. 'Therefore, Section 47 envisages two stages of the enquiry: (i) the fixing of the number of permits under Section 47 (3) and (ii) the consideration thereafter of the application for grant of a permit and the representations if any, by the persons mentioned in Section 47 (1).' It would, therefore, be seen that once the authority has fixed the number of vehicles to be operated in the region or the area or the particular route and the number of permits to be granted therefor, the stage of enquiry under Section 47 (3) is over. The next thing that the authority has to consider is whether grant of a permit would be within such limit or not"
(Emphasis is (here into ' ') ours).
5. Referring to Section 48 (1) of the Act, which empowers the authority to grant or refuse a stage carriage permit subject to the provisions of Section 47, their Lordships pointed out that the question of the number of permits to be granted having been already canvassed and decided, could not become the subject at that stage of inquiry, under Section 57, of any further controversy. Proceeding further it is observed-
"It is therefore, clear that the authority has first to fix the limit and after having done so, consider the application or representation in connection therewith in accordance with the procedure laid down in Section 57."
6-7. In Abdul Mateen v. Ramkailash, AIR 1963 SC 64 at pp. 67 and 68 which is followed in the above case, referring to the argument that the authority has the power to revise a general order passed under Section 47 (3) and so the Revisional authority has similar powers to go beyond the limits fixed under Section 47 (3) and grant a permit in excess of the number fixed under Section 47 (3), it is observed--.
"There is a fallacy, in our opinion, in this argument It is true that the Regional Transport Authority has the power to revise the limit fixed by it under Section 47 (3), but that power to revise the limit, in our opinion, is not under Section 48, when it is dealing with the question of grant or refusal of permits to individuals. Section 43 is always subject to the provisions of Section 47 and therefore, must be subject to the limits which may be fixed under Section 47 (3). The power to revise the limits under Section 47 (3) in the Regional Transport Authority must not be confused with the powers which it has when it is dealing with the grant or refusal of permits under Section 48. Therefore, though it is true that the Regional Transport Authority can revise the general order passed by it under Section 47 (3), that revision is a separate power in the authority and not a power arising when it is dealing with individual permits,"
In the above case earlier, it is observed-
"Section 57 (2) shows that an application for permit may be made at any time 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 date. All applications, whether received one way or the other, have to be dealt with in the manner provided by Section 57 and the final order for grant of stage carriage permit has to be passed under Section 48. But, at that stage, as we have already pointed out, the Regional Transport authority is only considering whether the applications made before it are to be granted or not and has to choose between various applicants where there are more applicants than the number of vacancies which might have been advertised or there are more applicants than the number limited under Section 47 (3), The scheme of the Act therefore, is that a limit is fixed under Section 47 (3) and the applications received are dealt with in the manner provided by Section 57 and permits can be granted under Section 48, subject to the limit fixed under Section 47 (3)."
8. While the authorities are thus clear that Section 47 which provides for consideration of an application for stage carriage permit envisages two stages of enquiry, (i) the fixing of the number of permits under Section 47 (3), and (ii) the consideration of the application for the grant of a permit and the representations by the persons mentioned in Section 47 (1), the contention urged for the Regional Transport Authority is that these principles can apply only to cases where the number of buses has been fixed under Section 47 (3) and it is not always incumbent on the Regional Transport Authority to fix the number of stage carriages for any region or area or route. Reference is made to the use of the expression "may" in Section 47 (3). The learned Judge, Kailasam J. in fact emphasises on the use of the word "may" in the section for his view. Sub-clauses (c) and (d) of Section 47 (1) provides that the Regional Transport Authority shall, in considering an application for a stage carriage permit, have regard to the adequacy of other passenger transport service operating or likely to operate in the near future, whether by road or other means, between the places to be served, and the benefit to any particular locality or localities likely to be afforded by the service. But the whole of Section 47 must be read, all the clauses together, to evolve the scheme of disposal of applications for permit thereunder. Section 57 only prescribes the procedure in applying for and granting permits and Section 48 provides that the grant or refusal of a stage carriage permit shall be subject to the provisions of Section 47. Section 47 (3) itself, provides for the limitation of number of stage carriages only having regard to the matters mentioned in Sub-section (1). This certainly calls for consideration of the several matters specified in Section 47 (1). Prior to the amendment of the Motor Vehicles Act, by Act 100 of 1956, there was no Sub-el. (3} to Section 47 and the power to limit the number of stage carriages for any specified route was given to the Regional Transport Authority Under Section 48 (a). As a result of the amendment, Sub-Clause (a) of Section 48 has been brought under Section 47 as Sub-Clause (3) and Section 48 expressly provides that the grant of permit shall be subject to the provisions of Section 47. "We may here notice the practice prevalent earlier here of putting up a proposal as to the number of buses to be placed on a. route when there was an application for permit on the route or for additional buses. It was then considered to be a tentative fixation and a second opportunity was given to challenge the same. It was considered that the sanction of the route or refusal to sanction it was an administrative matter and in 77 Mad LW 278 while striking down the second hearing it was observed that the matter would not entail any hardship upon any person if he be a person entitled to object under Section 47 (1), as he could, if the permit was granted under Section 48, appeal against the order granting the permit under the provisions of Section 64 (1) (f). In that case it was held that the existing operators would not be persons aggrieved entitling them to prefer revision under Section 64 (2). This view is not now tenable and we will be considering this aspect of the matter in another connected batch of writ petitions. In the above case this Court expressed the view that if a permit is granted to a person despite opposition, the person aggrieved can file an appeal under Section 64 (1) (f) and in such an appeal it is open to him to question the preliminary order of the Regional Transport Authority limiting the number of buses. Since this decision, a right of appeal from orders passed under Sub-section (3) of Section 47 has been given. Of course, the appeal can only be by a person aggrieved and we are holding in the connected batch of writ petitions following a recent decision of the Supreme Court in Lakshminarain Agarwal v. State Transport Appellate Authority U. P., C. A. No. 636 of 1967 = , that an
existing operator would be an aggrieved person for the purpose of an appeal or revision, as the case may be. In that case the Supreme Court has pointed out that an order under Section 47 (3) affects the future working on a route and that such an order would have repercussion on the working of the existing operators, whether for their good or not.
9. The petitioners in these cases claim that if the Regional Transport Authority is of opinion that a new route should be opened or additional buses be put on the existing route on its view of the traffic, they are entitled to get the matter determined first having regard to the considerations provided in Section 47 (1). The use of the word "may" in Section 47 (3), it is said, is indicative of the vesting of power in that regard in the Regional Transport Authority. In our view there is strength in this claim. While the existing operators by themselves may not be entitled to assert any claim to monopoly on the route or assert their right to limit the number of buses on the route for their own personal aggrandisement, the right of the public to use motor vehicles on the public road not being a right created under the Motor Vehicles Act and existing anterior to any legislation on the subject as an incident of public rights over a highway by the provisions of the Act, the State only controls and regulates the right for the purpose of ensuring the safety, peace, health and good morals of the public. As pointed out by the Supreme Court in Saghir Ahmed v. State of U. P., , 'within the limits imposed by State regulations any member of the public can ply motor vehicles on a public road and to that extent he can also carry on the business of transporting passengers with the aid of the vehicles. In this context it must be noticed that Section 47 (3) is not an arbitrary provision, but it contains a sound rule of public policy, consistent with the needs of the public and convenience of passengers that, a limit with regard to the number of stage carriages should be fixed on a route. It is in public interest generally that the Regional Transport authority is empowered to fix the number of buses under Section 47 (3). An existing operator may well make representations having regard to his experience on the route for consideration when fixing the number of buses. He is a person who would be affected by too many buses plying on an already overcrowded route. But it is also in the public interest that there is no un, fair competition. Too many buses may undermine the service. An operator may plead for more buses also. When proposals are mooted for opening a new route or putting up additional buses, the existing operators have an interest in the preliminary determination as to whether the new route should be opened or additional buses put up on the route. Their interest cannot be said to be fancied or unsubstantial. It is one thing if there had been no provision in the Act for fixing the number of buses. When the Act enables the authority to fix the number of buses, it must be said that it is a power conferred on the authority to be utilised whenever an occasion arises and it will be open to any person who may be affected to call upon the authority to exercise the power. There is another aspect of the matter, a pragmatic one, to be considered. If the matter is left to the stage of inquiry for the grant of a permit, conceivably the view taken by the Regional Transport authority that there is need for increasing the number of buses or opening up a new route may not appeal to the appellate authority. Under Rule 163 of the Motor Vehicles Rules, an applicant for a permit is granted four months' time to be reckoned from the receipt of the orders for production of the registration certificate of his vehicle. If there is stay pending an appeal, the applicant may get the benefit of pendency of the stay order, and the rule provides that acquisition of a vehicle in pursuance of an order sanctioning the permit shall be at the sole risk on the applicant, as the order sanctioning the permit may be reversed on appeal or revision under the Motor Vehicles Act and rules. Generally every existing operator, while opposing the addition of buses or opening up of a new route in his area or region, is also an applicant for the permit. If the number of vacancies is left undecided, there is the possibility of a new entrant keeping of the stage. That being so, from all aspects and angles it could be said that at any rate when the existing operators or applicants call upon the Regional Transport Authority to fix the number of buses on the route, before entertaining the applications for permit. It is bound to do so under Section 47 (3). We may in this connection refer to the observations of Lord Cairns in Federic Guilder Julius v. Lord Bishop of Oxford, (1880) 5 AC 214, 222 and 223,
"............But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so,"
We fail to see any force in the contention that Section 47 (1) makes it mandatory upon the Regional Transport Authority while considering an application for stage carriage permit also to have regard to the adequacy of other passenger service, and that at any rate when there is no prior fixation under Section 47 (3), the Regional Transport Authority may consider the matter when taking up the application for the grant of permit. The traffic density is a relevant factor that ought to be considered before granting a permit. But if the route or region is one that demands fixation of the number of vehicles that could be put thereon, it is plain that the applications cannot be disposed of properly and effectively, unless before embarking on the relative merits of the applicants the number of vacancies on the route that could be filled up is known. Once the number of vacancies is settled, the question having been canvassed and decided, it cannot again become the subject of controversy at the further stage. The requirement of Section 47 (1) (c) is fully satisfied, as that had been considered when fixing the number of vacancies under Section 47 (3). Of course, there can be no finality to such fixation in the very nature of things the limit cannot be inflexible or unchangeable for all time. The area or route may get importance and call for increased traffic facilities. The thing can happen in other way also. There is nothing in law which prevents the Regional Transport authority from revising the limit of stage carriages on a route at any time. The authority will still be faced with the problem of vacancies at any time. In AIR 1963 SC 64 at p. 69, the Supreme Court observed-
"............it may be revised at any time by the Regional Transport Authority if it properly comes to the conclusion that revision is necessary in view of the factors specified in Section 47 (1)."
One can envisage a case where having regard to the traffic potential and paucity of applications for permit there is no need to fix any limit. But there again the Regional Transport authority has applied its mind and come to the conclusion that no limit is necessary. This decision may call for revision at a later time suo motu or at the instance of parties affected by the decision not to limit. In a case where after consideration no limit is fixed, that Regional Transport Authority cannot, when considering applications for permit, embark upon an enquiry for limiting the number of buses on the route. It must do so before it takes up the applications for permit.
10. In the cases now before us the Regional Transport Authority having invited applications to fill up one or more vacancies as specified in the notification under Section 57 (2), has taken the stand, that the question as to whether additional buses are called for could be considered when the applications for permit are taken for consideration. This view of the Regional Transport Authority is clearly opposed to law. It has no jurisdiction to proceed to consider the applications without prior determination under Section 47 (3). The concept that the proceedings under Section 47 (3) are separate and different from those under Section 48 read with Section 57 of the Act, may no doubt result, in delaying the putting up of buses on the route when increase of traffic urgently demands additional service. But in the very nature of things it cannot be helped. As we have stated earlier, the practice in this State has been generally to first consider the matter as an administrative proposal or tentative fixation and then to reconsider it at the time of hearing of the applications. What is now required is a preliminary statutory determination of the matter under Section 47 (3), having regard to all the considerations provided under Section 47 (1). The determination under Section 47 (3) is no doubt subject to an appeal and possibly a writ in this Court. But this should not stand in the way of the prior consideration of the matter, as that also is conducive to the public interest. Section 47 (1) enjoins that the interest of the public generally is a matter that has to be given regard in considering an application for permit. If this factor permeates proceedings for the grant of permit at all stages and promptitude and despatch observed, the needs of the public and the convenience of passengers would be adequately served.
11. A doubt is raised whether the existing operators should be given a hearing at the enquiry under Section 47 (3), Once it is held that the question of the number of buses that could be permitted on the route cannot be agitated when applications for permits are considered on their merits, the existing operators who could properly make representations in that regard should be given an opportunity for representation when the determination under Section 47 (3) is taken up by the Regional Transport Authority. An existing operator could be prejudiced by an order under Section 47 (3) see C. A. No. 636 of 1967 = and he is given a right of appeal. Natural justice
would require that he should be given an opportunity to present his case at the enquiry.
12. The only question that now calls for some consideration is how the applications before the several authorities have to be disposed of. Applications have been called for under Section 57 (2) and have been filed. Objections have been preferred and affected parties have called for a determination under Section 47 (3). We see nothing in law which prevents the question of revision of the limit of stage carriages on a route being taken up even after applications have been called for and received. The prohibition is against the consideration of the applications on the merits for the grant of permit under Section 48 before limiting the number of stage carriages under Section 47 (3). In these cases the requirements of law will be satisfied by the Regional Transport Authority staying further proceedings under Section 57 of the Act and immediately proceeding with fixation of the number of stage carriages under Section 47 (3). Though there is nothing in the Act precluding the Regional Transport Authority from entertaining applications Eor permit immediately thereafter, in fairness to the parties, having regard to the provision for appeal now provided, it is desirable that the matter is taken up under Section 57 after the expiry of time required for preferring an appeal from the order under Section 47 (3). This is inevitable. It would be for the appellate authority to consider whether there could be and there should be stay in any particular matter and consider also the need for the expeditious disposal of the appeals.
13. No other point has been raised and argued in these cases.
14. It follows that in all these cases a writ of prohibition has to issue as prayed for. The Regional Transport Authority has to be prohibited from proceeding further with the proposed grant of stage carriage permits pursuant to the notification under Section 57 (2) of the Motor Vehicles Act before taking proceedings under Section 47 (3), The writ appeals preferred under Clause 15 of the Letters Patent from orders dismissing writ petitions are allowed. Rules nisi in the writ petitions are made absolute. As regards the appeals from interlocutory orders refusing interim relief, no orders on the merits are called for as final orders are being made on the writ petitions themselves. They are therefore, dismissed as unnecessary. Having regard to the nature of the controversy, there will be no order as to costs.