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Esskey Roadways (Firm) Vs. Anandhakrishnan Bus Service [1994] INSC 431 (17 August 1994)

Ramaswamy, K. Ramaswamy, K. Agrawal, S.C. (J)

CITATION: 1994 SCC (6) 71 JT 1994 (5) 308 1994 SCALE (3)842

ACT:

HEAD NOTE:

ORDER

1. The appellant along with the contesting respondent had applied for grant of stage carriage permit on the route from Tiruchirapalli to Jayankondam on or before 10-10-1975.

Objections have been called for on 22-10-1975 and the last date to file the objections was 10-11-1975. On consideration of the respective claims the RTA, Tiruchirapalli awarded to the appellant 10 marks and 8 marks to the respondent. On that premise RTA granted permit to the appellant. The respondent carried the matter in appeal to the STAT which by its order dated 14-11-1977 set aside the order of RTA and granted the permit to the respondent.

In CRP No. 88 of 1978 by order dated 5-3-1980 the learned Single Judge upheld the order of STAT. Thus, this appeal by special leave.

2. The only question that arises for consideration in this appeal is whether the RTA should consider the respective claims as on the date of the consideration or as on the date of the application. The RTA held that the date of application was the relevant date. But the Appellate Authority and the High Court found that the date of the consideration was the relevant date. Admittedly, the respondent-partnership firm was reconstituted on 1-4-1976 taking one Easwaran as a managing partner and it was registered on 21-5-1976 under Section 69 of the Partnership Act. Admittedly, the managing partner had the technical qualification as on the date of consideration. The managing partner being the technically qualified man, the respondents are entitled to the award of two more marks on the ground of qualifications. The Appellate Tribunal taking that fact into consideration awarded 10 marks and on comparative evaluation, since the respondent by then had three permits, granted the permit to the respondent. The question 73 whether the date of consideration is the relevant date is no longer res integra. This Court in Maharashtra State Road Transport Corpn. v. Mangrulpir Jt. Motor Service (P) Ltd. I held that: (SCC p. 230, para 22) "The High Court was in error on the second question in holding that the Regional Transport Authority would have to consider the respective qualifications of the applicants as on the date of their applications and not as on the date of the actual consideration by the Regional Transport Authority of the applications for the grant of permit." This Court considered diverse circumstances in support of that conclusion. This Court said that as on the date of the application if insolvency petition is pending against one of the applicants, but on the date of consideration if he is declared to be an insolvent, he becomes disentitled to the grant of permit by operation of law. As on the date of the application if there is no conviction, but as on the date of consideration, if an applicant is convicted, he also becomes ineligible for consideration.

3. Another circumstance arose in Dhani Devi v. Sant Bihari2 case was that when one of the applicants before the consideration died and his LRs were brought on record. When it was questioned, this Court held that the LRs are entitled to be considered as inheriting the estate of the deceased applicant for grant of permit. In A.S. Jalaluddin v. Balasubramania Bus Service (P) Ltd.3 the question arose that whether the applicant who secured the residential qualification by establishing a branch office at one of the terminus of the route would be considered eligible as on the date of the consideration. This Court held that he is entitled. In view of these considerations, it must be held that the date of consideration is the relevant date for the purpose of considering the eligibility to grant the required marks under Section 46 of Act 4 of 1939. This law being in operation from 1970, we do not think that it requires any reconsideration by this Court by a larger Bench.

Accordingly, we hold that the date of consideration is the relevant date on which the respective claims of the candidates have to be considered for award of the marks for grant of permit. It is made clear that this declaration of law is confined to and peculiar of the statutory operation under Section 46 of Act 5 of 1958.

4. It is then contended that the appellant has been carrying on the service by orders of stay and that therefore, at the distance of time it requires (sic no) interference. We are afraid that we cannot give countenance to such contention as a person who was ineligible for grant of permit cannot get legitimacy to a grant by order of court. He should have only statutorily get the right which alone could be protected by judicial review,

5. It is next contended that in the application made by the respondent in this Court, the respondent-firm admitted that they are not in a position to 1 (1971) 2 SCC 222: 1971 Supp SCR 561, 571 2 (1969) 2 SCR 507: AIR 1970 SC 759 3 C.A. No. 161 of 1965, decided on 31-10-1967 74 carry on the stage carriage service to the public and they wanted to dispose of one of the permits granted to it with the permission of the court. That would show that the respondent is not in a position to carry on the operation of the service catering to the travelling needs of the public and that, therefore, it is a case for interference. We cannot accede to the contention. Several grounds have been given in support of the permission for alienation of one of the permits, but the permit in question is not the one in respect of which the permission was sought for. Under these circumstances, we do not find any justification warranting interference with the order of the High Court and the Appellate Tribunal.

6. It is then contended that in view of the change in law by operation of Motor Vehicles Act of 1988 and the special law made by the State of Tamil Nadu in Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992 (Act 41 of 1992) validating the renewal of all the permits granted, since the appellant has been carrying on the permit by obtaining the renewals, it must be permitted to carry on the permit. We cannot give any direction. It may be open to the appellant to approach the appropriate authority in accordance with law which would be considered and disposed of.

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