Madras High Court
M.Jagathambal vs The State Transport Appellate Tribunal on 2 November, 2022
Author: R.Subramanian
Bench: R.Subramanian
W.A.No. 3502 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.11.2022
CORAM
THE HONOURABLE Mr.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE Mr.JUSTICE KUMARESH BABU
W.A.No.3502 of 2019
and CMP. No.22436 of 2019
M.Jagathambal .... Appellant
[Appellant substituted vide Court order dated 01.11.2021
made in CMP.No.17800 of 2021 in W.A.No.3502 of 2019]
Vs
1.The State Transport Appellate Tribunal
High Court Buildings
Chennai - 600 104.
2.The Regional Transport Authority
Coimbatore (North)
Coimbatore.
3.M.Paul Jayaraj .... Respondents
Common Prayer : Writ Appeal filed under Clause 15 of the Letters Patent
praying to allow the writ appal and set aside the order dated 17.06.2019 made in
W.P.No.29912 of 2008.
1/8
https://www.mhc.tn.gov.in/judis
W.A.No. 3502 of 2019
For Appellant : Mr.M.Krishnappan, Senior Counsel
for Mr.K.Hariharan
For Respondents : Mr.R.Ramanlal
Additional Advocate General
assisted by Mr.P.Sathish for R2
Ms.AL.Ganthimathi for R3
R1 - Tribunal
JUDGMENT
[Order of the Court was made by R.SUBRAMANIAN.J] Challenge in the writ appeal is to the order of the Writ Court confirming the order of the first respondent dated 27.11.2008 made in R.P.No.64 of 2005.
2.1 The revision petition in R.P.No.64 of 2005 was filed by the third respondent challenging the order of the second respondent dated 08.12.2004, granting a permit to the petitioner on an assumption that the petitioner's application is prior to that of the third respondent. By an order dated 08.12.2004, the second respondent granted a minibus permit to the petitioner herein for plying a minibus in the route from Selvapuram to Gudalur Goundampalayam. The third respondent however has applied for grant of minibus permit in the route 2/8 https://www.mhc.tn.gov.in/judis W.A.No. 3502 of 2019 Thudiyalur to Madathur.
2.2 When the applications were considered, the Scheme of the year 1999 was in force and as per the said scheme, the maximum number of minibuses permissible in a District were only 250. 249 permits were already granted and there was only one permit which remained to be granted. The Regional Transport Authority, namely the second respondent, concluded that the petitioner is senior to the third respondent on the ground that the petitioner has approached this Court and obtained a direction for consideration of his application at an earlier point of time. In that process, the authority overlooked the fact that the third respondent's application was actually earlier in point of time. Aggrieved by the said grant, the third respondent preferred a revision before the Appellate Authority namely, the first respondent in R.P.No.64 of 2005.
2.3 The first respondent by its order dated 27.11.2008 allowed the revision and remanded the matter to the Regional Authority namely the second respondent with a direction to consider the application afresh on the basis of the date of application. Aggrieved by the said direction, the petitioner came up with a writ petition in W.P.No.29912 of 2008, and an interim order was granted in his favour, with the aid of which, the petitioner has been running the minibus in the route as 3/8 https://www.mhc.tn.gov.in/judis W.A.No. 3502 of 2019 claimed by him, till date. Thereafter, the writ petition came to be dismissed on 17.06.2019, confirming the order of the State Transport Appellate Authority. Hence, this appeal.
3. We have heard M.Krishnappan, learned Senior Counsel for the appellant and Mr.R.Ramanlal, learned Additional Advocate General assisted by Mr.P.Sathish for the second respondent and Ms.AL.Ganthimathi, learned counsel appearing for the third respondent.
4. Mr.M.Krishnappan, learned Senior Counsel appearing for the appellant would fairly concede that the petitioner/appellant's application was submitted later in point of time. He would further submit that as of today, there are other vacancies and therefore, the third respondent could also be favoured with a permit in the route sought for by him.
5. Mr.R.Ramanlal, learned Additional Advocate General would submit that the Department cannot grant any permit as of today in view of the vacuum created because of this Court's order quashing the scheme framed by the Government in the year 2011.
4/8 https://www.mhc.tn.gov.in/judis W.A.No. 3502 of 2019
6. It is to be stated that the State Transport Department attempted to frame a scheme making the entire State of Tamil Nadu as an area in the year 2011 and this was published vide G.O.Ms.No.136 Home (Tr.III) Department dated 23.02.2011. This new comprehensive modified area scheme, treating entire Tamil Nadu as one area, modified the various schemes framed for various districts in the year 1999 vide G.O.Ms.No.1523 to 1549 Home (Transport-III) dated 17.11.1999. This new scheme was challenged before this Court in W.P.(MD) No.2893 of 2011, and this Court allowed the writ petition quashing the scheme. The said order was confirmed on an appeal in W.A(MD) No.13 of 2020 as well as before the Hon'ble Supreme Court. Therefore, the attempt to introduce a new scheme failed. Despite the Hon'ble Supreme Court having confirmed the orders of this Court, the State is yet to come up with a new scheme. In the interregnum, this Court in W.P.No.30386 of 2008 concluded that upon quashing the new scheme, the old scheme will not get revived. This order came to be passed on 01.08.2022.
7.1 According to the learned Additional Advocate General, a vacuum has been created and hence, the Department cannot issue any new permit as of today. 5/8 https://www.mhc.tn.gov.in/judis W.A.No. 3502 of 2019 The Regional Transport Officer, Mettupalayam has also filed an affidavit today stating that there are about 8 minibus permits which have been surrendered/cancelled in Coimbatore District and two of them are in the area (i.e.,Mettupalayam), within the jurisdiction of the Regional Transport Officer, Mettupalayam. Despite there being such vacancies, the absence of the scheme is projected as a ground to deny permits for the third respondent to operate. Turning to the merits, once it is found that the third respondent's application is earlier in point of time and it is incumbent on the authority to consider the applications on the basis of their seniority, the order of the appellate authority cannot be called in question. Therefore, the dismissal of the writ petition has to be sustained.
7.2 Considering the passage of time, we do not propose to sustain the order of appellate authority, as it would lead in another round of litigation, which would be meaningless. We therefore while confirming the dismissal of the writ petition, modify the order of the appellate authority directing the Regional Transport Authority to issue permit to the third respondent for the route in which he had sought for forthwith. The decision as to whether the permit of the petitioner has to be cancelled as a consequence, is left open and it is for the authorities to decide on its continuance or otherwise. We, hasten to, add that considering the fact that 6/8 https://www.mhc.tn.gov.in/judis W.A.No. 3502 of 2019 there is a vacancy, the authority should not stand on technicalities namely the absence of the scheme to deny the facility to the public at large by cancelling the permit. We also make it clear that the direction to issue permit despite the absence of scheme, is made taking into account the peculiar facts of this case, where the third respondent has been denied an opportunity to provide service to public by running the minibus because of a wrong interpretation placed by the Regional Authority on the question of seniority. To lay emphasis, this case should not be treated as a precedent. We also deal with petitioner with very soft gloves since the petitioner has been running the service from 2004 for almost 18 years. We are confident that the authorities would be alive to the situation created because of their own inaction and pass reasoned orders.
8. In the result, the writ appeal stands disposed of on the above terms. No costs. Consequently, connected miscellaneous petition is closed.
[RSMJ] [KBJ]
02.11.2022
Index : Yes / No
Speaking order / Non-speaking order
ds
7/8
https://www.mhc.tn.gov.in/judis
W.A.No. 3502 of 2019
R.SUBRAMANIAN. J.,
and
KUMARESH BABU.J.,
ds
To:
1.The State Transport Appellate Tribunal
High Court Buildings
Chennai - 600 104.
2.The Regional Transport Authority
Coimbatore (North)
Coimbatore.
W.A.No. 3502 of 2019
02.11.2022
8/8
https://www.mhc.tn.gov.in/judis