Skip to content


S.R. Kuppuswami Chettiar Vs. M. Ramachandran and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberWrit Appeal No. 15 of 1962
Judge
Reported inAIR1964Mad356
ActsMotor Vehicles Act, 1939 - Sections 48, 48A and 64A
AppellantS.R. Kuppuswami Chettiar
RespondentM. Ramachandran and anr.
Appellant AdvocateAdv. General and ;T. Chengalyarayan, Adv.
Respondent AdvocateAddl. Govt. Pleader, ;V. Thyagarajan and ;N.G. Krishna Iyengar, Advs.
DispositionAppeal allowed
Cases ReferredDirector of Public Works v. Ho Po Sang
Excerpt:
.....petition under section 64a against order of regional transport authority (rta) refusing to grant variation if applicant dies his legal representatives can pursue revision petition - permit once granted has to be considered as species of property in grantee - death of grantee would not take away beneficial right of his legal representatives in permit - application for variation of such permit will be connected with that right of property in permit - court answered in affirmative. (ii) variation of permit - section 57 of motor vehicles act, 1939 - whether it will be open to rta to grant variation of permit so as to enable operator to cut route prescribed in original permit and to proceed to different destination abandoning one fixed under permit - effect of variation was that bus..........64-a of the motor vehicles act, against the order of the regional transport authority, refusing to grant variation if the applicant dies, his or her legal representatives can pursue the revision petition; and (ii) whether it will be open to the transport authorities to grant variation of a permit so as to enable the operator to cut the route prescribed in the original permit, and to proceed to a different destination abandoning the one fixed under the permit. srinivasan, j. has answered both the questions in the affirmative.2. the facts which have led up to this appeal are these: one lakshmi, whose interests are now represented by the first respondent held two permits to ply stage carriages from madras to sadras, a distance of about 52 miles. she applied to the regional transport.....
Judgment:

S. Ramachandra Iyer, C.J.

1. This is an appeal under Cl. 15 of the Letters Patent against the judgment of Srinivasan, J. declining to issue a writ of certiorari to quash the order of the State Transport Appellate Tribunal which granted a variation of the two stage carriage permits held by the first respondent. The questions that fall for determination in this appeal are:

(i) Whether pending a revision petition Under Section 64-A of the Motor Vehicles Act, against the order of the Regional Transport authority, refusing to grant variation if the applicant dies, his or her legal representatives can pursue the revision petition; and (ii) whether it will be open to the Transport Authorities to grant variation of a permit so as to enable the operator to cut the route prescribed in the original permit, and to proceed to a different destination abandoning the one fixed under the permit. Srinivasan, J. has answered both the questions in the affirmative.

2. The facts which have led up to this appeal are these: One Lakshmi, whose interests are now represented by the first respondent held two permits to ply stage carriages from Madras to Sadras, a distance of about 52 miles. She applied to the Regional Transport Authority for a variation of the permits so as to enable her to take the buses from Madras to Pudupatnam which lies some miles south of Sadras. A major portion of the route (about 44 miles) leading upto that place from Madras; happens to be the road which connects Madras and Sadras; in that road and about 54 miles from Madras, the road to Pudupitnam takes off towards the south and leads to the destination. If the variation asked for were to be granted Lakshmi's buses instead of going to Sadras would go to a different place altogether, namely, Pudupatnam, the consequence of which will be that none of the places beyond the 44th mile of the Madras-Sadras route including the terminus Sadras will be served by the two buses for which the original permits had been granted by the Regional Transport authority.

By its order, dated 21-9-1958, the Regional Transport authority rejected the application for variation as it involved curtailment of about 7 miles on the existing route covered by the original permits. Lakshmi feeling aggrieved by the order of the Transport authority filed a revision to the State Transport Appellate Tribunal. Pending the revision petition, she died, and the first respondent who has been appointed as the property guardian of her minor legal representatives was permitted to continue the proceedings initiated Under Section 64A of the Motor Vehicles Act. The Tribunal being satisfied that it would be in the public interests to grant the variation, set aside the order of the Regional Transport authority and granted the variation sought. Two of the rival operators who had opposed the application for variation of the permits, filed petitions to this court under Article 226 of the Constitution questioning the validity of the order of the State Transport Appellate Tribunal. Srinivasan J found no error in the order of the Tribunal permitting the second respondent to continue the revision petition filed by Lakshmi and he also held that it would be open to the Transport Authorities in the interests of the public and with a view to avoiding uneconomic competition, to allow variation of the permits even though the existing route would be curtailed. As, in the instant case, the Appellate Tribunal had found that it was in the interests of the public to grant the variation, the learned judge held that this court would not be justified in interfering with the order of the tribunal under Article 226 of the Constitution.

3. We are in agreement with the learned Judge on the first question. The learned Advocate General appearing for the appellant contended that as the variation sought by Lakshmi had been refused by the Regional Transport authority the right she had when she filed the revision petition to the State Transport Appellate Tribunal against the order of the Regional Transport Authority was a mere expectation of obtaining the variation; expectation could not be said to be property and it would not, therefore, devolve on the legal representatives.

4. There is a misconception in this argument. A permit once granted has to be considered as a species of property in the grantee and the death of the grantee would not take away the beneficial right of his legal representatives in the permit. Variation has always a relation to an existing permit and therefore, if the permit can be regarded as property, an application for variation of such a permit will necessarily be connected with that right of property in the permit. For example, one' of the conditions attached to a permit is the rate of charge that can be levied for the luggage of the passengers. Suppose the operator seeks a variation for increasing the charges for the luggage; variation in such a case will, undoubtedly, be one concerning the property of the grantee in the permit. It cannot, therefore, be contended that what Lakshmi had at the time of her death was a mere expectation and that no right of property was concerned in the petition.

5. Reliance is however placed in this connection on the decision of the Privy Council in Director of Public Works v. Ho Po Sang, 1961 AC 901, where it was held that a mere hope that something would come out of an application would not amount to a right. But the authority has to be understood in the light of its facts. Every litigant who filed an action in respect of his property can be said to have only a hope that he will succeed; it cannot mean that if he dies his legal representatives cannot continue the action as there was only a hope of success in the litigation. The question for consideration in all such cases will be whether the right to sue has survived to the legal representatives of the deceased or not.

We have carefully gone through the judgment in 1961 AC 901 and we are unable to find anything in that to support the contention raised on behalf of the appellants. In that case a, lessee from the Crown had let out a property to certain tenants. Landlord and Tenant Ordinance which was then in force provided that if the Director of Public Works gave a rebuilding certificate, the lessee would be entitled to call on those in occupation to quit. The lessee applied for a re-building certificate and the concerned authority was willing to issue the certificate after the statutory conditions as to notice had been satisfied; at that stage the tenants filed a petition to the Governor-in Council opposing the grant of the re-building certificate. While matters stood thus the ordinance was repealed and no decision had been taken by the Governor-in-Council on the appeal petition. The lessee was able to obtain ultimately the certificate, the validity of which was challenged on the ground that the ordinance under which the re-building certificate was granted had been repealed. Under the Interpretation Ordinance in force in that country the repeal of an enactment will not affect a right or privilege acquired or which had accrued under any enactment repealed. A question arose whether the lessee can take advantage of this provision. He could, if the right of privilege had already accrued to him before the date of repeal.

Their Lordships of the Privy Council held that as on the date of the repeal of the ordinance, the lessee had no right to the certificate (conditions as to notice etc. not having been complied with) and as he had no more than a hope that a certificate would be given, it cannot be said that he had an accrued right to the certificate. That is the real basis of the decision can be seen from the following passage in the judgment of the Judicial Committee:

'Though, in the events that happened, ting point does not call for decision, it would not seem that in any circumstances any right to certificate could arise at least until, after notice given, the time for appeals by the tenants and sub-tenants went by without there being any appeal. In a case, however, where (as in the present case) the giving of notice Under Section 3-B (1) resulted in appeals by way of petition to the Governor, followed by a cross petition to the Governor presented by the applicant, then any decision as to the giving of re-building certificate no longer rested with the Director. In the present case the position on 9-4-1957 was that the lessee did not and could not know whether he would not be given a rebuilding certificate. Had there been no repeal, the petition and the cross-petition would in due course have been taken into consideration by the Governor-in Council. Thereafter there would have been an exercise of discretion.

The Governor would have directed either that a certificate be given or be not given and the decision of the Governor-in-Council would have been final. In these circumstances their Lordships conclude that it could not properly be said that on 9th April, the lessee had an accrued right to be given a rebuilding certificate.'

6. It will be seen that in that case the right to evict the tenant in occupation was by virtue of an ordinance which had been repealed. With the repeal of the ordinance that right came to an end. But if certain rights had accrued before the repeal of the ordinance those rights would stand preserved. It is obvious that no such right could have accrued before the rebuilding certificate was actually granted and as the repeal of the ordinance took place before that time, it was held that there was no right which could be said to have accrued. But in the case before us the proceedings initiated by Lakshmi were in relation to an existing right of property in the permits held by her. Such a right, would, therefore, survive to her legal representatives. The benefit of the proceedings initiated by her would also survive to them. We agree with Srinivasan, J.; that it was competent for the second respondent to continue the revision petition filed by Lakshmi under Section 64-A of the Motor Vehicles Act.

7. But the more important question in the case relates to the jurisdiction of the State Transport Appellate Tribunal to grant the variation applied for by Lakshmi. Section 57 of the Motor Vehicles Act prescribes a particular procedure for the grant of a new permit. If the application of Lakshmi were to be regarded as in substance one for the grant of a new permit, there can be little doubt that the procedure prescribed in that section would have to be followed. If, however, the application is regarded merely as one for variation of the conditions of the existing permits, it is not denied that all the formalities for the grant of variation have been gone through.

8. The substantial contention urged by the learned Advocate-General before us is that an application for an alteration of the permit which would enable the holder (operator) to discard the original destination, take up an altered route and reach a new destination would not be one for a 'mere variation of an existing permit, but one for the grant of a new one.

9. We are of opinion that this argument is well founded. Under Section 48 of the Act, which deals with the grant of stage carriage permits, the Regional Transport Authority is authorised to attach to the permit any one or more of the conditions set out in Sub-clause (3) to that section. The section has been amended by Act 100 of 1956. 'Originally, Section 48 (d) which empowered the Regional Transport Authority to attach conditions -to the permit provided in sub-clause (ii) (a) thereto that the stage carriage or stage carriages should be used only on specified routes or in specified area. In other words, under Section 48 prior to its amendment the use of the stage carriage over a specified route was no more than a condition attached to the permit. Therefore, it would require nothing more than a variation to make minor alterations in an existing route. After its amendment by Act 100 of 1956 the recast section reads:

'1. Subject to the provisions of Section 47, a Regional Transport Authority may, on an application made to it under Section 46, grant a stage-carriage permit in accordance with the application or with such modification as it deems fit or refuse to grant such a permit; provided that no such .permit shall be granted in respect of any route 01 area not specified in the application.

2. Every stage carriage permit shall be expressed to be valid only for a specified route 01 routes or for a specified area.'

Sub-section (3) sets out the conditions that might be attached at the discretion of the Regional Transport Authority to the permit. None of the clauses in that sub-section relates to the alteration of the route. Sub-rule (xxi) of Sub-section (3) states that o-

'The Regional Transport Authority may after giving notice of not less than one month (a) vary the conditions of the permit; (b) attach to the permit further conditions.'

As Sub-section (3) itself specifies the conditions that could be attached to the permit it is reasonable to infer that Sub-rule (xxi) gives power to vary only those conditions that have been set out in Sub-rules (i) to (xx) of Sub-section (3) of Section

10. Section 48-A which has been engrafted on the Act by the Madras Act XX of 1948 states -

'Any conditions attached to a stage carriage permit in pursuance of clause (d) of Section 48 may, at any time, be varied, cancelled or added to by the State Authority, provided that this power shall not be exercised to the prejudice of the holder of the permit without giving not less than three months' notice to him.'

The introduction of this section was prior to the amendment of the parent Act by the Central legislature by Act 100 of 1956. Reference to Section 48 in Section 48-A is therefore to the old section which had been repealed by Act 100 of 1956, and replaced, by the section in its present form. There is now no clause (d) to Section 48. But the power given to the State Authority to vary the conditions attached to a permit will have to be correlated to the present Section 48. In other words, the power to vary given by that section only avail with respect to conditions specified in Section 48 in its present form. Section 8 of the General Clauses Act (Central Act 1897) runs:

'Where this Act (Central Act) or Regulation made after the commencement of this Act repeals and re-enacts with or without modification any provision of a former enactment then references in any other enactment or in any instrument to the provisions so repealed shall unless a different intention appears, be construed as references to the provision so reacted.'

11. There is a similar provision in Section 18 of the Madras General Clauses Act.

12. From the rule of interpretation set out above it would follow that reference in Section 48-A of the Motor Vehicles Act which was introduced by the Madras Act XX of 1948 to clause (d) of Section 48 will have to be taken as reference to the re-enacted Section 48 and as under that section the conditions which could be attached to the permit are specified in Sub-section (3) thereto, the variation can only be with reference to such conditions as are set out therein. That makes no mention of the route. In regard to that matter, the proviso to Section 48 (1) and Sub-section (2) expressly states that the stage-carriage permit will be valid only for a specified route or routes or for a specified area. Indeed Section 46 (a) makes it plain that an application for a permit should specify the route or routes or the area or areas to which the application relates. Section 57 (8) which deals with application for variation of the conditions of the permit states:

'An application to vary the conditions of any permit other than a temporary permit by the inclusion of a new route or routes or a new area 01 in the case of a stage-carriage permit, by increasing ...... shall be treated as. an application for the grant of a new permit (proviso omitted)'.

From these provisions it appears that at any rate after the re-enactment of Section 48, variation of the conditions of a permit cannot extend to the variation of the route.

13. A route in its ordinary sense means a way taken from the starting point to its destination. -When, therefore, a permit fixes the two termini on a particular route, the cutting up of the route and abandonment of one of the termini will undoubtedly affect integrity of the route for which the permit is granted. Variation, no doubt, is a term of wide amplitude and includes every modification or alteration. But its meaning under the Motor Vehicles Act should be limited in the light of the statutory provisions. It is plain from Sections 48 and 48-A, that the integrity of the route is not regarded by the legislature as one which should form the subject of variation either under Section 48 (3) (xxi) or under Section 48-A for the simple reason that it is not a mere condition to be attached to the permit but a statutory provision. In an unreported decision of this Court in L. P. A. No. 200 of 1952 (Mad), a transport operator applied for variation of a permit for the route from Virudhunagar to Sivakasi by way of extension of the route upto Srivilliputtur. Rajamannar, C. J., and Venkatarama Aiyar, J., regarded this application as being in substance one for the issue of new permit to which the provisions of Section 57 of the Act would apply. The learned Judges observed -

'Whenever the variation sought is in substance for grant of additional benefits or privileges or facilities the application for variation should be considered to be an application for a permit and that Section .57 of the Act would apply.'

The judgment was delivered before Section 48 was amended in 1956.

14. We are of opinion that under the reenacted section the position is clearer still.

15. It is, however, contended on behalf of the respondent that so long as an authority possesses a power to issue or grant a permit, it will have the power to vary the same and as every permit has to contain the route it should be within the competence of the authority issuing the permit to vary the route. Reliance is placed for the contention on Section 21 of the General Clauses Act. We cannot see how that provision can apply to the present case where the statute itself provides as to matters which can be the subject-matter of variation, namely that variation can be in regard to the conditions of the permit alone. If, as we held before, the route in respect of which the permit is granted cannot be regarded as a condition within the meaning of Section 48 (3), there will be no power to vary the route, as such power is given only in regard to other conditions contained in the permit.

16. Learned counsel for the respondent has CH/CWM/D.V.C. referred in this connection to certain decisions of this Court where extension to existing routes were regarded as variation of the conditions in the permit. It is unnecessary for us in the present case to consider whether these decisions correctly lay down the principles. Further, in all those cases there was no question of abandoning one of the termini on the route fixed in the permit. In a case where a person applies for an extension of his route he serves not only that route but wants something more. That is different from a case where the operator having a permit for a particular route wants to cut the route, take a portion of it, only to reach a different destination. In our opinion, it will not amount to variation of the original permit for the reason that the integrity pf the permit had been broken, one of the two termini having been abandoned. In saying this we want to make it clear that a variation of a permit need not necessarily keep to the road connecting the two places. Cases may arise where there should be deviation or a detour might be necessary to 1 reach a particular place. There can be a variation to reach the same terminus by an altered route as the word route does not always mean usual or recognised way connecting the two places. In such cases the power to permit such deviation will come under Section 48 (3) (xxi) (b).

But if the purpose of the deviation is to divert the stage carriage to some other terminus without reaching or touching the prescribed one, it cannot be regarded as a variation of the conditions of the permit. It will be a case of grant of a new permit. To hold otherwise would lead to inconvenient results. To illustrate the point let us take that am operator has a permit to ply a stage carriage from Madras to Chingleput. Can he under the guise of getting a variation of the permit obtain an alteration to go and stop at Trivellore merely because a part of the route from Madras to Chingleput and from Madras to Trivellore is common? Mr. Thyagarajan for the respondents suggests it would also be a case of variation of the permit but it can be set aside on the ground of mala fide exercise of the power of variation. We are, however, unable to regard it as a case of variation as the two places Chingleput and Trivellore are different and far apart. Alteration of the permit to go up to Trivellore abandoning Chingleput can only bet regarded in substance as amounting to the issue of a fresh permit.

17. In the present case the effect of variation granted by the Transport Appellate Tribunal is that Sadras and a distance of 7 miles on the road leading upto it, has been abandoned and the bus is diverted to a different place, far removed from Sadras which can only be done under a new permit and not by variation of the existing permit. The fact that the public do not suffer by reason of the alteration cannot confer jurisdiction on the Tribunal to grant the alteration or variation which can only be done after following the procedure laid down in Section 57 of the Act. The appeal is allowed and the order of the State Transport Appellate Tribunal dated 28-9-1961 is quashed. The appellant will be entitled to his costs from the first respondent.


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