1. The Tribunal set aside the permit granted to the petitioner on the route Coimbatore Railway Station to Saravanampatti, a town route, in Coimbatore town, and granted the permit to the first respondent. The Regional Transport authority proceeded upon the looting that the marking system under G O. Ms. No. 2263 Home dated 9-8-1958 should not be applied but the selection should be made on a different criterion, namely, that the person with the smallest number of buses should have the first preference. It was on that basis the petitioner was preferred by the Regional Transport authority, as the petitioner had six permits, while the first respondent had nine permits. The Tribunal considered that this was a wrong principle to be applied and followed the marking system. When the Tribunal found that the petitioner as well as the first respondent obtained equal marks, two considerations weighed with it in favour of the first respondent. One of them was that the first respondent had a better history sheet; and the other was that the first respondent being a Co-operative Society, and in view of the equality of marks, it was entitled to the benefit of the proviso to Section 47(1) of the Motor Vehicles Act. The Tribunal accordingly granted the permit to the first respondent. This petition is to quash the Tribunal's order.
2. The only serious point urged on behalf of the petitioner is that the Tribunal misdirected itself in applying the proviso to Section 47 (1). The contention is that the words 'other conditions being equal' in the proviso have reference to clauses (a) to (f) of Sub-section (1) of Section 47, and not to equality of marks assigned under the said Government Order. It is further stated that once the first respondent was allotted one mark under Government Order for being a Co-operative Society, the proviso could no longer be invoked in its favour. So far as the first proposition is concerned, a Division Bench of this Court in M. P. Uthandi Mudaliar Sri Shivaji Motor Service Vellore v. North Arcot Dt. Co-operative Motor Transport Society for Ex-Servicemen Ltd., Vellore, WA No. 52 of 1958 (Mad) seems to have been inclined to take that view. Observed the Court in that case:
''The phrase 'other conditions being equal' which occurs in the proviso obviously refers to the conditions set out in Section 47 (1), clauses (a) to (f). It cannot be said that the columns 1 to 5 embodied in the marking system directly correspond to the circumstances mentioned in clauses (a) to (f) in Section 47 (1) of the Act.'
3. I do not understand the Tirunelveli Co operative Motor Transport Society for Ex-Servicemen Ltd., Palayamkottai v. State Transport Appellate Tribunal, W A No. 1 of 1958 (Mad) said anything, which is in conflict with that view. The point, therefore, is whether only in view of the equality of the marks, the proviso could be applied in favour of the first respondent in this case. The learned Advocate General says that the application of the proviso will mean, giving the first respondent a double preference. Apparently, this argument is addressed on the assumption that the one mark under the marking system granted to the first respondent took into account the preference, contained in the proviso to Section 47 (1). It should be remembered that the two decisions which I have just now referred to as well as Thangavelu Mudaliar Sri Ambigai Bus Transport Vellore v. North Arcot Dt. Co-Operative Motor Transport Society for Ex-Servicemen Ltd., Vellore, W P No. 402 of 1959 (Mad) were concerned with the old G. O. 1298 Home dated 28-4-58, under which column 5 directed preference to be given to a Co-operative Society. The scheme of that Government Order was not the same as the one now in force, to wit G, O. Ms. No. 2265 Home dated 9th v August 1958. In the latter Government order one mark is to be allotted not only where the applicant is a registered Co-operative Society, but also to a registered public limited company or a registered private company. It is clear, therefore, that when the rival applicants are a company, whether private or public, and a registered Co-operative Society each of them is entitled to one mark, because of the nature of its constitution. Obviously, therefore, unlike the earlier Government Order, the present Government order does not take into account the preference under the proviso to Section 47 (1) in the scheme of allotment of marks on the basis whether the applicant is a Cooperative Society or a private or public limited company. It seems to me that the said decisions rendered under the old Government order will have, there. fore, no application to the marking system under the present Government Order. Here, both the petitioner as well as the first respondent were allotted equal marks, including the one mark which was given for being either a registered Co-operative Society or a Company. In that situation, the Tribunal rightly considered that 'the first respondent was entitled to the benefit of the proviso to Section 47 (i). The Tribunal was also prepared to proceed on the basis, again rightly, that even if the company mark given to the petitioner and the first respondent was excluded, still the first respondent should be preferred both under the proviso to Section 47 (1), and because the first respondent had a better history sheet. There was no double preference, therefore, shown to the first respondent.
4. For the petitioner it is argued that as 'other conditions being equal' in the proviso to Section 47 (1) have reference to clauses (a) to (f) under Sub-section (1) of Section 47, it is only when the Tribunal applied those clauses and found an equality of circumstances between the petitioner and the first respondent, could it legitimately invoke and apply the proviso in favour of the first respondent. I will assume that this approach as a proposition is sound, though I must confess that the observations in the course of the judgment in W A No. 1 of 1958 (Mad) do not at first sight appear to be entirely in support of it. It does not perhaps appear that the point, in the precise form in which it is raised, was put forward before the Tribunal. Even otherwise, it does not appear to have been contended that the circumstances under clauses (a) to (f) of Section 47 (1) in respect of the first respondent on the one hand and the petitioner on the other were in any sense unequal, If the facts relevant to the contention had been proved and placed before the Tribunal it should certainly have referred to them. In such circumstances it cannot be said that the Tribunal committed an error apparent on the face of it order or the record. Further,. I am inclined to think that, though the words 'other conditions being equal'' in the proviso undoubtedly have reference to clauses(a) to (f) of Section 47 (1), the mark system under the G. Os. in a measure is related to them and the observations made in W A No. 52 of 1958 (Mad) where in connection with the particular facts and the application of the old Government Order the scheme of which, as I said, was different. The marking system under the Government Order itself gave preference only to a Co-operative Society, and that distinguishes, in my opinion, the observations made in that case. The Tribunal was not, therefore, in error on this aspect either.
5. I have already set out the two circumstances which weighed with the Tribunal in making a preference in favour of the first respondent. Without being, content with them, the Tribunal thought fit to give additional reasons which have been under attack by the learned Advocate General for the petitioner. But as I take the view that the Tribunal's order could. rest without those reasons, I do not think it necessary; to deal with them.
6. The petition is dismissed. No costs.