Jagannatham & Bros. Vs.
Sowdambigai Motors Service [1963] INSC 138 (8 May 1963)
08/05/1963
ACT:
Motor Vehicles-Application for stage carriage
permit--Regional Transport Authority granted permit-Grant set aside by
Transport Appellate Tribunal without giving reasons for preference-Vilidity of
the order-Duty of Appellate Tribunal-Motor Vehicles Act, 1939 (IV of 1939).
HEADNOTE:
The appellant, as well as respondents 1 and 2
and others, had applied for the grant of stage carriage permit. The Regional
Transport Authority granted a permit to each of the two respondents. The
appellant aggrieved by this order preferred an appeal before the State
Transport Appellate Tribunal. The Appellate Tribunal held that the appellant
should be preferred to the Respondent No. 1. Against this order the respondent
No. 1 preferred a writ petition before the High Court. The High Court set aside
the order of the Appellate Tribunal on the ground that the Appellate Tribunal
did riot state the reason for preferring the appellant to the Respondent No. 1.
Held that the High Court was justified in
setting aside the order of the State Transport Appellate Tribunal. In fact the
State Transport Appellate Tribunal did not determine the only question which
required to be determined and that was why one operator should be preferred to
another.
Raman & Raman Ltd.v. The State of Madras
[1959] Supp. 2 S.C.R. 227, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 179 of 1963.
Appeal by special leave from the judgment and
order dated October 23, 1962 of the Madras High Court in Writ Appeal No. 207 of
1962.
B. Sen, J. B. Dadachanji, O. C. Mathur and
Ravinder Narain, for the appellant.
667 A. V. Viswanatha Sastri and R. Ganapathy
Iyer, for respondent No. 1.
A. V. V. Nair and P. Ram Reddy, for
respondent No. 2.
1963. May 8. The judgment of the Court was
delivered by MUDHOLKAR J.-A single judge of the Madras High Court set aside the
order of the State Transport Appellate Tribunal, Madras, allowing the appellant
company's appeal granting them a permit to ply a bus on route No. 5 in Erode
Town. An appeal preferred against his decision by the appellant company under
cl. 15 of the Letters Patent was dismissed in limine. Against that decision the
appellant has come up before this Court by special leave. The Regional
Transport Authority, Coimbatore invited applications for the grant of six
permits for stage carriage buses for running Erode Town service. On route No. 5
two stage carriage buses were sought to be introduced. The appellant as well as
respondents 1 and 2 and some others, had applied for the grant of all the six
permits, including two on route No. 5. The Regional Transport Authority at its
meeting held on March 16, 1961 considered the applications, granted four
permits out of six to four existing operators and on route No. 5, which was a
new route, it granted a permit to each of the two respondents. Aggrieved by
this order the appellant preferred an appeal before the State Transport
Appellate Tribunal which held that the appellant should be proffered to the
respondent No. 1. The Tribunal thus did not interfere with the order of the
Regional Transport Authority in so far as the permit granted to the respondent
No. 2 was concerned but set aside its order granting a permit to the respondent
No. 1. Against this order the respondent No. 1 preferred a writ petition 668
before the High Court. That petition was heard by a single judge of the High
Court and, as already stated, the learned judge set aside the order of the
Tribunal in so far as the appellant was concerned. The ground on which the
learned judge set aside the order of the Tribunal was that the Tribunal did not
state why the appellant should be preferred to the respondent No. 1 in the
matter of being given a permit. The learned judges who heard the Letters Patent
Appeal preferred by the appellant observed, while dismissing the appeal:
"The first respondent had this
advantage, viz : that he was given the permit by the Regional Transport
Authority. Before that permit could be set aside it was the duty of the
Appellate Tribunal to have considered the superior merit of the appellant. In
considering such superior merit, it was bound to consider the pros and cons of
the experience alleged to be possessed by the first respondent as against the claim
of the appellant who puts his case only as a new entrant. The Tribunal appears
to have taken as a rule of law that new entrants should invariably be preferred
as that would give them an enthusiasm and also surcharge the atmosphere with a
healthy competition. But it forgot that in all these matters, the paramount
question, to be considered was the interest of the public, and, in considering
the question, it had a duty to evaluate the rival claims of the two
operators.", Thus both the learned single judge and the appeal court
interfered with the order of the Tribunal on the ground that it had failed to
determine a material issue and had thus not performed its duty.
It is an admitted fact that though the
appellant has experience of running buses on certain routes 669 in the State it
has no recent experience of running buses in a town. The appellant could,
therefore, be properly regarded as a new entrant in so far as town service is
concerned. This fact has never been in dispute. The Regional Transport Authority
considered this circumstance against the appellant while granting permits to
the respondents 1 and 2. The Tribunal, however, adverting to Government Order
No. 2265 dated August 9, 1958 and certain , observations of this Court in Raman
& Raman Ltd. v. The State of Madras (1), came to the conclusion that new
entrants ought to be preferred in the matter of granting permits even on town
routes. The Regional Transport Authority on the other hand felt that bearing in
mind the fact that there is considerable traffic in towns and the roads are
narrow, it is desirable to prefer existing operators to a new one. The Regional
Transport Authority also appears to have had in mind a circular dated October
14, 1960 issued by the Transport Commissioner in coming to this conclusion. In
that circular the Transport Commissioner appears to have placed his
interpretation on the Government Order already referred to in which routes have
been placed in three categories : "short routes". "'medium
routes" and "long routes". In that circular the Transport
Commissioner has observed :........ the Government are of opinion that the town
service routes should be excluded from the-scope of short routes and they
should be treated as a separate category". Apparently, this is nothing
more than the opinion of the Transport Commissioner and not a Government Order
which requires to be given effect to wherever possible by the Regional
Transport Authority. Thus one of the reasons given by the Regional Transport
Authority may not be correct. However, we wish to make no pronouncement one way
or the other on this question because in our view the Tribunal has not
addressed itself specifically to the question as to why the appellant should be
preferred to respondent No. 1. No doubt, the (1) [1953] Supp. 2 S.C. R. 227,
244.
670 Tribunal has set out the qualifications
possessed by the appellant. But it has not considered whether the respondent
No. I does or does not possess similar qualifications. In the circumstances we
agree with the High Court that there has been no proper determination of the
only question which requires to be determined and that is why one operator
should be preferred to another.
Mr. B. Sen who appears for the appellant
contended that the learned single judge ought to have remanded the matter to
the Tribunal after setting aside its order and that it could not confirm the
order of the Regional Transport Authority at any rate without going into the
merits of the rival claims.
It is true that the order of the learned
judge is not very clearly worded. But it seems to us that what he really meant
was that the appeal should be rehear by the Tribunal and decided in the light
of his observations. This we think should be sufficient to remove such
grievance as the appellants may have. The appeal is dismissed but there will be
no order as to costs in this Court.
Appeal dismissed.
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