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Abdul Mateen Vs. Ram Kailash Pandey & Ors [1962] INSC 221 (31 July 1962)

31/07/1962 WANCHOO, K.N.

WANCHOO, K.N.

SINHA, BHUVNESHWAR P.(CJ) SHAH, J.C.

CITATION: 1963 AIR 64 1963 SCR (3) 523

CITATOR INFO:

RF 1966 SC1780 (4) RF 1968 SC 410 (6) RF 1969 SC1130 (8) R 1970 SC1542 (3,9,15,18,60) R 1970 SC1704 (5,6,7,9) R 1972 SC2110 (2) R 1975 SC 386 (2) R 1978 SC 949 (2)

ACT:

Motor Vehicles-stage carriage permits-Applications invited by Regional Transport Authority for two vacancies Minister of Transport gave an additional permit-Whether legal Scope of 8. 64-A-Motor Vehicles Act, 1939, (4 of 1939), as amended by Bihar Amendment Act No. XXVII of 1950, ss. 47, 48, 57, 64, 64-A.

HEADNOTE:

A new route was advertised by the Regional Transport Authority and applications were invited for two permanent stage carriage permits. The Regional Transport Authority granted the two permits to the appellant and another person.

An appeal against that order failed. Sudhakar Sharma, one of the respondents, moved the High Court under Art. 226 and the order of the appellate authority was quashed. When the case went back to the Appellate Authority, the permit granted to the appellant was cancelled and was given to Sudhakar Sharma. The appellant made an application to the State Government under s. 64- A of the Motor Vehicles Act, 1939, as amended by the Bihar Amendment Act No. XXVII of 1950. The Minister of Transport upheld the order of the appellate authority cancelling the permit of the appellant and granting the same to Sudhakar Sharma, but granted an additional permit to the appellant. Ram Kailash Pandey filed a Writ petition in the High Court challenged the order of the 524 Minister of Transport. He contended that the State Govern- ment had no power when dealing with an application under s. 64-A to increase the number of permits to be granted and the order granting the third permit to the appellant was without jurisdiction. The High Court accepted the contention and set aside that part of the order of the Minister of Transport by which he had granted a third permit to the appellant. The appellant came to this Court by special leave.

Held, that where a 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 s. 48 read with s. 57, the Regional Transport Authority must confine the number of permits issued by it to 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 s. 47 (3). The State Government cannot pass any order when exercising revisional authority which the authority whose orders the government is revising, has no authority to pass.

It may not be generally possible to conclude from the number of vacancies shown in an advertisement that is the number of fixed under s. 47 (3) by the Regional Transport Authority, but when it is a case of a new route which is being opened for the first time and an advertisement is issued calling for applications for such a new route specifying the number of vacancies for it, it is reasonable to infer that when the number of vacancies is specified, that shows the limit which must have been decided upon by the Regional Transport Authority under s. 47(3).

Ban Gopal v. Anant Prasad, [1939] Supp. 2 S.C.R. 692 and Arunachalam Pillai v. Southarn Railways (Private) Ltd., [1960] 3 S.C.R. 764 followed.

Mohammad Luqman Sharif v. State Transport Authority, A.I.R.

1961 All. 342, approved.

The Automobile Transport (Rajasthan) v. Shri Nathu Ram Mirdha I. L. R. (1959) Raj. 120, reversed.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 195 of 1962.

Appeal by special leave from the judgment and order dated 1961, August 24 of the Patna High Court in M. J. C. No. 126 of 1961.

525 Basudeo Prasad, R. K. Garg, S. C. Agarwal and M. K. Ramamurthi for the appellant.

B. D. Sharma for respondent No. 1.

D. Goburdhan for respondent No. 2.

S. P. Verma for respondent No. 3.

1962. July 31. The Judgment of the Court was delivered by WANCHOO, J.-This is an appeal by special leave from the judgment of the Patna High Court. Brief facts necessary for present purposes are these. It appears that a new route Gopalganj-Pahlezghat was advertised by the North Bihar Regional Transport Authority in July 1957 and applications were invited for permanent stage carriage permits and the advertisement stated that there were two vacancies on the route. A number of persons applied for the two permits and in January 1958, the Regional Transport Authority granted permits to the appellant and another person. This order was taken in appeal to the Appellate Authority, which however failed. Thereafter Sudhakar Sharma who is one of the respondents, before us, moved the High Court under Art. 226 of the Constitution and in April 1960 the High Court quashed the order of the Appellate Authority on the basis of the judgment of this Court in Ram Gopal v. Anant Prasad.(1) The case then went back to the Appellate Authority for rehearing. The Appellate Authority thereupon modified the order of the Regional Transport Authority and the permit granted to the appellant was cancelled and in his place a permit was granted to Sudhakar Sharma,; the permit granted to the other person was not interfered with. Thereupon, the appellant made an application to the State Government under s. 64-A of the Motor Vehicles Act, No.4 of 1939, hereinafter referred to as the Act) as amended by the Bihar Amendment (1) [1959] Supp. 2 S.C.R. 692.

526 Act No. 27 of 1950, which provides that "the State. Government may, on application made to it in this behalf within 30 days of the passing of the order in the course of any proceeding taken under this Chapter by any authority or officer subordinate to it, call for the records of such proceeding and after examining such records pass such orders as it thinks fit". The application was heard by the Minister for Transport and he upheld the order of the appellate Authority. At the same times however, he took the view that "with the introduction of bus-service in North Bihar, people are becoming more and more bus-minded as they have been getting cheap and quick means of transport and therefore an additional service could be allowed on this route, and that would add to the facilities provided to the public without impairing in any way the effectively of the existing service". Therefore, while upholding the order of the Appellate Authority cancelling the permit of the appellant and granting a permit instead to Sudhakar Sharma, he felt that the ends of justice would be met if an additional permit was granted to the appellant, who had proved to be a desirable operator. He therefore ordered that an additional service be allowed to the appellant for the said route. Thereupon Ram Kailash Pandey who had also made an application under s. 64-A and whose -application had been dismissed filed a write petition before the High Court challenging the order of the Minister for Transport.

His main contention was that the grant of an additional permit to the appellant was wholly unjustified, particularly in the face of his far superior claim. To this petition the appellant as well as the two persons to whom permits were granted and the State of Bihar, the Appellate Authority as well as the Regional Transport Authority were made parties.

When the petition came to be heard before the High Court it was contended that the 527 State Government had no power when dealing with an application under s. 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 therefore, its order granting the third permit to the appellant was without jurisdiction. This contention was accepted by the High Court, and it set aside that part of the order by which a third permit was granted to the appellant. But the High Court refused to interfere with the rest of the order granting permits to the two other persons. Thereupon, the appellant applied for a certificate to appeal to this Court, which was refused. He then moved this Court for special leave, which was granted; and that is how the matter has come up before us.

The main question for decision in this appeal's whether the State Government acting under s. 64-A of the Bihar Amendment Act had the power to increase the number of permits for which application had been invited by the Regional Transport' Authority. It is contended on behalf of the appellant that the State Government has the same power under a. 64-A as the Regional Transport Authority has, as held by this Court in RAM GOPAL'S CASE, and it was therefore open to the State Government to increase the number of permits as the Regional Transport Authority would always have the power to increase the number of permits whenever it thought necessary to do so.

In order to appreciate the argument put forward on behalf of the appellant, it is necessary to refer to the scheme of the Act in the matter of granting stage carriage permits. The scheme of the Act for the control of transport vehicle is to be found in Chap. IV. Section 42 provides that no owner of a transport vehicle shall use or permit the 528 use of the vehicle in any public place, save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority..." Section 43 gives power to the State Government to issue directions to the State Transport Authority with respect to various matters specified therein. Section 44 provides for the constitution of Regional Transport Authorities and the State Transport Authority and powers thereof Section 45 then provides that an application for a permit shall be made to the Regional Transport Authority of the region in which it is proposed to use the vehicle and this is subject to two provisos, with which however we are not concerned in the present appeal.

Section 46 then provides for the form in which an application for a stage carriage permit shall be made. Then we come to s. 47 (1) which lays down certain criteria which shall be taken into consideration by a Regional Transport Authority while dealing with an application for a stage carriage permit. Section 47(3) which is important gives power to the Regional Transport Authority to limit the number of stage carriages generally or of any specified type for which stage carriage permits may be granted in the region or in and specified area or on any specified route within the region, having regard to matter mentioned in sub s.(1)Section 48 then provides that subject to the provisions of s. 47, the Regional Transport Authority may, on an application made to it under s. 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 and also provides, subject to rules, for conditions that may be attached to a permit. Section 57 provides for the procedure in applying for and granting permits. Section 64 provides for an appeal from certain orders passed by the Regional Transport Authority within prescribed time and in the prescribed manner to the pres- 529 cribed authority. Then comes s. 64-A, as inserted by the Bihar Amendment Act providing for revision by the State Government.

It will be clear from this scheme of the Act that the main section for the grant of a stage carriage permit is s. 48 and in passing an order granting or refusing to grant a stage carriage permit, the Regional Transport Authority has to act subject to the provisions of s. 47. Section 57 is a procedural section and provides for the procedure in applying for and granting permits. The power of the Regional Transport Authority to grant stage carriage permits is to be found in s. 48 and that power is subject to the provisions of a. 47. Section 47 (1) lays down matters for which the Regional transport Authority shall have regard when considering an application far a stage carriage permit and s. 47 (3) gives power to the said authority having regard to the matters mentioned in sub-s. (1) to limit the number to stage carriages generally etc. It would be clear therefore that when the Regional Transport Authority proceeds in the manner provided in S;. 57 to consider an application for a stage carriage permit and eventually decides either to grant it or not to grant it under s. 48 its order has to be subject to the provisions of s. 47, including s. 47 (3) by which the Regional Transport Authority is given the power to limit the number of stages generally etc. Therefore, if the Regional Transport Authority has limited the number of stage carriages by exercising its power under s. 47 (3), the grant of permits by it under s. 48 has to be subject to the limit fixed under s. 47 (3). We cannot accept the contention on behalf of the appellant that when the Regional, Transport Authority following the procedure provided in s. 57, comes to grant or refuse a permit it can ignore the limit fixed under s. 47 (3), because it is also the authority making the order under s. 48. Section 47 (3) is concerned with a general order 530 limiting stage carriages generally etc. on a consideration of matters specified in s. 47 (1). That general order can be modified by the Regional Transport Authority. if it so decides, one way or the other. But the modification of that order is not a matter for consideration when the Regional Transport Authority is dealing with the actual grant of permits under s. 48 read with s. 57, for at that stage what the Regional Transport Authority has to do is to choose between various applicants who may have made applications to it under s. 46 read with s. 57. That in our opinion is not the stage where the general order passed under s. 47 (3) can be reconsidered for the order under s. 48 is subject to the provisions, of s. 47, which includes s. 47 (3) under which a general order limiting the number of stage carriages etc.

may have been passed. 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 dates. All applications, whether received one way or the other, have to be dealt with in the manner provided by s. 57 and the final order for grant of stage carriage permit has to be passed under s. 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 s.47 (3). The scheme of the Act therefore is that a limit is fixed under s. 47 (3) and the applications received are dealt with in the manner provided by s. 57 and permits can be granted under s. 48 subject to the limit fixed under a. 47 (3).

531 Further, it will be clear from s. 64 that the appeal there contemplated is by a person who is aggrieved by various orders specified therein. Section 64 clearly does not contemplate any appeal from an order under s. 47 (3) limiting, the number of stage carriages generally etc. for that order being a general order cannot be a ground for grievance to any individual who may have the right of appeal under s. 64. Therefore, when the Appellate Authority deals with an appeal under s. 64 it is not sitting in appeal on the general order passed under s, 47 (3) and has to deal with the same matters with which the Regional Transport authority dealt with under s. 41, namely, to choose between various applicants in the matter of grant of permits. Further, when under s. 64-A of the Bihar-Amendment Act, an application is made to it, the State Government can call for the record of any proceeding taken under Chap. IV by any authority or officer subordinate to it and pass such order in relation to the case as deems fit.

It may be mentioned that s. 64-A as it now stands in the Act is very different from s. 64-A as inserted by the Bihar Amendment Act and there is no power in the State Government now to act under the present s. 64-A. A question may very well arise whether s. 64-A as inserted by Central Act No. 100 of 1956 has by necessary implication repealed s. 64- A as inserted by the Bihar Amendment Act. As the proceedings in the present case began in 1957 Central Act 100 of 1956 would apply to these proceedings and therefore if a. 64-A as inserted by the Bihar Amendment Act is repealed by necessary implication by s. 64-A as inserted by Central Act 100 of 1956, there would be no power in the State Government to revise the order of the Appellate Authority after 1956.

However, we need not consider this matter further, as it was never raised in the High Court and shall Proceed 532 on the assumption that s. 64-A of the Bihar Amendment Act applied.

Further, it is not necessary in the present case to decide whether under s. 64-A as inserted by Central Act 100 of 1956 it was open to the State Transport Authority to vary a general order passed under s. 47 (3); we are here dealing with a revision based on an application made under s. 64-A, as inserted by the Bihar Amendment Act by a person who was aggrieved by the order of the Appellate Authority under s.

64. In such a case we are of opinion that the power of the revisional authority is confined only to considering matters which the Regional Transport Authority and the Appellate Authority could have considered under s. 48 and a. 64. We have already pointed out that under s. 48 the Regional Transport Authority is to choose between various applicants in the matter of granting permits or refusing to grant permits and under a. 64 the power of the Appellate Authority is also limited to the same function on an appeal by a person aggrieved as provided therein. Therefore, when a revisional authority is dealing with an application under a. 64-A by a person who is aggrieved by an order under a. 64, it is also confined within the same limits within which the Appellate Authority acting under s. 64 and the Regional Transport Authority acting under s. 48 are confined. This was the view taken by this Court in Ram Gopal's case(1) and the same view has been reiterated in A.S.T.Arunachalam Pillai v. Messrs. Southern Roadways (Private) Limited, (2)where it was pointed out that though the words "as it deems fit" in a. 64-A are wide in expression, they do not mean that the State Government can pass any order when exercising revisional authority which the authority whose orders the Government is revising has no (1) [1960] 3 S.C.R. 764.

(2) [1959] Supp. 2 S.C.R. 692.

533 authority to pass. The argument on behalf of the appellant is that the Regional Transport Authority undoubtedly has the, power to revise a general order passed under s. 47 (3) and therefore the revisional authority when acting under s.

64-A would have power to go beyond the limits fixed under a. 47 (3) and grant a permit eve a in excess of the number fixed under a. 47 (3). 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 a. 47 (3) but that power to revise the limit in our opinion is not under s. 48, when it is dealing with the question of grant or refusal of permits to individuals.

Section 48 is always subject to the provisions of s. 47 and therefore must be subject to the limits which may be fixed under s. 47 (3). The power to revise the limits under s. 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 a. 48. Therefore, though it is true that the Regional Transport Authority can revise the general order passed by it under s. 47 (3), that revision is a separate power in the authority and not a power arising when it is dealing with individual permits.

Therefore, when an appeal is taken from an order under s. 48 and a revision is taken by an aggrieved person under s. 64- A, the power of the Appellate Authority as well as of the revisional authority is as much subject to s. 47 (3) as the power of the Regional Transport Authority under s. 48. This means that the Appellate Authority as well as the revisional authority under s. 64-A when dealing with an appeal or a revision of an aggrieved person with respect to grant or refusal of permits must act in the same manner as the Regional Transport Authority and its order will be subject to the same restriction namely, that it must act subject to the provisions 534 of s. 47) and if there is a limit fixed by the Regional Transport Authority under s. 473) that limit will apply equally to the Appellate Authority under s. 64 and to the revisional authority under s. 64-A, when the revisional authority is dealing with the matter on an application by an aggrieved person. In the present case, the Regional Transport Authority was dealing with certain applications made to it on its advertisement for two vacancies on the route concerned and had to choose between a large number of applications who had applied for the two permits. It made a certain choice and passed an order under s. 48. There were then appeals to the Appellate Authority which made a modification in the orders passed by the Regional Transport Authority; but both these authorities proceeded on the basis that there were only two permits to be issued, that being the number fixed under s, 47 (3). Then there was a revision under the Bihar Amendment Act by one of the aggrieved persons, the grant of permit to whom had been set aside by the Appellate Authority. In such a case the revisional authority acting under a. 64-A could only consider the question as to which persons should be chosen and could not go beyond the limits fixed under a. 47 (3) by the Regional Transport Authority and increase the number of permits to be issued from two to three.

We may in this connection refer to the proviso to s. 57 (3) introduced in 1956 which lays down that where limits have been fixed under s. 47 (3) the Regional Transport Authority may summarily refuse applications for permit if the result of granting permits on such application would be to increase the number of vehicles beyond the limit fixed under s. 47 (3). This shows that the power under s. 48 read with the procedure under s. 57 is to be exercised within the limits fixed under s. 47 (3) and it is not necessary for the Regional Transport 535 Authority even to go through the procedure provided under is. 57, if the vehicles operating on a particular route are already equal to the number limited under s. 47 (3). This also shows how an order under s. 48 read with s. 57 is subject to the provisions of s. 47 (3) and how when dealing with an application for permit under s. 48 read with a. 57, the Regional Transport Authority is to act within the limits prescribed under s. 47 (3) and the order under s. 47 (3) is not open to modification when the Regional Transport Authority is acting under s.48 read with s.57, though as we have said, 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 s. 47 (1).

We therefore agree with the High Court that where a 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 s. 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 s. 47 (3).

It is further contended on behalf of the appellant that there were no limits fixed by the Regional Transport Authority and therefore it was open to the State Government to increase the number of permits from two or three. Now the usual manner in which a Regional Transport Authority can fix a limit under s. 47 (3) is by a resolution. Similarly it can vary those limits by another resolution. It is urged that there is no 536 proof on the record that there was any such resolution under s. 47 (3) by the Regional Transport Authority in this case.

it is true that there is nothing on the record to prove that there was any resolution as such by the Regional Transport Authority in this case limiting the number of stage carriages on this route to two. But the High Court has held that the number can be deemed to have been fixed in view of the advertisement issued by the Regional Transport Authority calling for applications for two vacancies. This view of the High Court is however strenuously challenged on behalf of the appellant. It may be conceded that it may not be generally possible to conclude from the number of vacancies shown in an advertisement of this kind that is the number fixed under s. 47 (3) by the Regional Transport Authority.

There is, however, in our opinion, one exception to this general rule, and that is when a now route is being advertised for the first time. It is not disputed that in this case a new route was being advertised for the first time and the advertisement said that there were two vacancies for which applications were invited, In the case of a new route it is clear that the Regional Transport Authority must have come to some conclusion as to the number of stage carriages which were to be permitted to operate on that route and the advertisement would only' be issued on behalf of the Regional Transport Authority calling for applications for the number so fixed. Therefore when it is a case of a new route which is being open for the first time and an advertisement is issued calling for applications for such a new route specifying the number of vacancies for it, we think, it is reasonable to infer that when the number of vacancies was specified that shows the limit which must have been decided upon by the Regional Transport Authority under s, 47 (3) ; otherwise, it is impossible to understand in the case of a new route why 537 the advertisement was only for two vacancies and not (say) for four or six. The very fact that in the case of a new route opened for the first time, the advertisement mentions two vacancies shows that the Regional Transport Authority must have decided before issuing the advertisement that on that route the number of stage carriages will be limited to two under s. 47 (3). This is also the inference which, the High Court has drawn in this connection, though it has not specifically mentioned the fact that this was a case of a new route opened for the first time. As we have said above., such an inference from the advertisement would be justified in the case of a new route which is opened for the first time. Where the advertisement is with respect to an old route the fact that the advertisement mentions a particular number of vacancies would not necessarily mean that was-the number fixed under a. 47 (3), for the number fixed may be much more and there may be only a few vacancies because a few permits had expired. Therefore, in the circumstances of this case we are of opinion that it will be legitimate to infer as it was a new route opened for the first time that when the advertisement was made for only two vacancies, that was because the Regional Transport Authority had already decided to limit the number of state carriages on this route only to two under s. 47 (3). Once this is held, it follows that under s. 48, the Regional Transport Authority could not grant more than two permits and there- fore the Appellate Authority also could not grant more permits under s. 64; nor could the revisional authority on an application made to it by an aggrieved person grant more permits. We have already said that it is not necessary to decide in this case whether it would be open otherwise to the revisional authority under s. 64-A as inserted by Central Act 100 of 1956 to revise a general 538 order of the Regional Transport Authority passed under s. 47 (3). We are in the present case concerned only with a case where an order passed under s. 48 by the Regional Transport Authority has been taken in appeal by an aggrieved person to the Appellate Authority under a. 64 and thereafter the order of the Appellate Authority has been taken in revision by an aggrieved person under s. 64-A as inserted by the Bihar Amendment Act and in such a case the limit fixed under a. 47 (3) would bind the Regional Transport Authority, the Appellate Authority as well as the revisional authority and they cannot issue permits beyond the limits fixed under s. 47 (3). We are therefore of opinion that the High Court was right on the facts of this case in holding that the State Government bad no power to increase the number of permits which bad been fixed at two by the Regional Transport Authority under s. 47 (3) to three on the application of an aggrieved person under s. 64-A arising from a proceeding before the Regional Transport Authority under a. 48 and the Appellate Authority under s. 61.

We may point out that there has been a difference of opinion between various High Courts on this question. The Rajasthan High Court in The Automobile Transport (Rajasthan) v. Shri Nahtu Ram Mirdha (1) has taken one view and the Allahabad High Court in Mohammad Luqman Sharif v. State Transport Authority (2) has taken the contrary view. The Rajasthan High Court held, dealing with s. 48 (a) of the Act (as it was before the amendment of 1956) which is similar to s. 47 (3) after the amendment, that under s.(48)(a) as it stood before the amendment, limiting of the number of stage carriages On any specific route did not make the order of the Regional Transport Authority a final decision binding on (1) I.L.R. (1959) Raj. 120.

(2) A.I.R (1961) All.342.

539 the appellate authority. The, Allahabad High Court on the other hand held that, when an order limiting the number of stage carriages had been passed under s. 48 (a) as it was before the amendment of 1956, there could be no appeal against that order under s. 64 and therefore the Appellate Authority on an appeal under s. 64 could riot refix the number of stage carriages in respect of that route. We are of opinion, in view of what we have said above and in the light of the limitations which we have indicated above, that the view of the Allahabad High Court is correct.

Lastly, it is urged on behalf of the appellant that respondent No. 1 who filed the writ petition in the High Court had no locus stand. We are of opinion that there is no force in this contention. Respondent No. 1 was contending in the High Court that he should have been granted a permit and not the appellant. Therefore he had locus stand to file the writ petition and it was during the consideration of that writ petition that the point on which the appellant has lost, arose.

We therefore dismiss the appeal with costs to respondent No. 2 (Sudhakar Sharma) as he alone supported the construction of the High Court on the question of jurisdiction.

Appeal dismissed.

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