Punjab-Haryana High Court
The Kartar Bus Service Ltd. vs The Minister For Transport, Government ... on 17 October, 1969
Equivalent citations: AIR 1971 PUNJAB AND HARYANA 331
ORDER
1. Kartar Bus Service Limited, Jullundur, through Lachhman Singh Thakar, General Manager, has filed this petition under Arts. 226 and 227 of the Constitution of India for the issuance of a writ of certiorari, quashing the order of the Minister for Transport, Punjab Government, respondent No. 1, dated 23rd July, 1968 (copy Annexure 'C' to the petition).
2. The facts as alleged in the petition are that the petitioner is a limited concern, incorparated in terms of the Indian Companies Act, and has been engaged in the business of providing passenger transport facilities on various routes in the State of Punjab for a number of years. The State Transport Commissioner, Punjab, granted a regular permit to the petitioner-company, after complying with the mandatory provisions of the Indian Motor Vehicles Act (hereinafter refereed to as the Act), valid for a period of three years on Hoshiarpur-Garhshankar-Nurpur route, on September 20,1966. Aggrieved from the grant of permit to the petitioner-company, the Victory Public Hill Motor Transport Company (Private) Limited, Hoshairpur, respondent No. 2, preferred an appeal to the Secretary to Government, Punjab, Transport Department, but the same was dismissed on the ground that respondent No. 2 (appellant) had failed to file objections under Section 57 of the Act within time. Still dissatisfied with the order of the appellate authority, a revision was filed which was allowed by respondent No. 1, vide his order dated 23rd July, 1968 (Annexure 'C' to the petition). It is this order the legality of which has been challenged by the petitioner on the grounds stated in the petition.
3. Separate returns have been filed on behalf of respondent No. 1 as well as on behalf of respondent No. 2 in which the material allegations made in the petition have been controverted, and it has been averred that the impugned order is perfectly legal.
4. The only contention raised by Mr. J. S. Wasu, learned counsel for the petitioner, was that the impugned order passed by respondent No. 1, was without jurisdiction as no revision lay to him against the order of the appellate authority. According to the learned counsel, the only right available to respondent the only right available to respondent No. 2 was to have filed a revision under Section 64-A of the Act. It was also contended by the learned counsel that the impugned order was not appealable under Section 64, sub-clause (f) of the Act, and as such no revision could be filed against the appellate order under CI. (h) as amended by the East Punjab Amendment Act 28 of 1948. On the other hand it was vehemently argued by Mr. Sodhi, learned counsel for respondent No. 2 that Section 64-A of the Act was not at all applicable to the facts of this case. According to the learned counsel the impugned order was appealable under Section 64 (f) of the Act, though it may be that respondent No. 2 having not opposed the grant of the permit in favour of the petitioner, was not entitled to file an appeal. In other words, what was sought to be argued by the learned counsel, was that the order granting a permit is appealable, but that remedy may not be available to a person who has not opposed the grant thereof before the appropriate authority.
5. The relevant provisions of the Act with which we are concerned, read as under:-
"Section 64. Appeals- Any person-
x x x x x x x x
(f) being a local authority or police authority or an association which, or a person providing transport facilities who, having opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto, or
(g) x x x x x x x x may, within the prescribed time and in the prescribed manner, appeal to the prescribed authority who shall give such person and the original authority an opportunity of being heard."
6. Clause (h) which was added to Section 64 in Punjab under Section 11 of the East Punjab Amendment Act, 28 of 1948, and S. 64-A read as under:-
"(h) Government may ask the Appellate Authority prescribed under the rules framed under this section to forward for its consideration any of the appeal decided by the Appellate Authority and may later, revise, cancel or uphold any such orders"-
"64-A. Revision.
The State Transport Authority may, either on its own motion or on an application made to it, call for the record of any case in which an order has been made by a Regional Transport Authority and in which no appeal lies, and if it appears to the State Transport Authority that the order made by the Regional Transport Authority is improper or illegal, the State Transport Authority may pass such order in relation to the case as it deems fit:
Provided that the State Transport Authority shall not entertain any application from a person aggrieved by an order of a Regional Transport Authority, unless the application is made within thirty days from the date of the order:
Provided further that the State Transport Authority shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard."
7. After giving my thoughtful consideration to the entire matter and to the relevant provisions of law referred to above. I am of the view that there is considerable force in the contention of the learned counsel for the petitioner and this petition deserves to be allowed.
8. Section 64 enumerates the persons or body who have been given right to appeal against different by the Regional Transport Authority. An appeal shall lie only to the extent it is provided for under this section. Under CI. (f), a right to appeal has only been given to a person who has opposed the grant of a permit before the Regional Transport Authority. The interpretation CI. (f) came up for consideration before a Full Bench of this Court in Fatehgarh Sahib Bus Service v. State Transport Commr., 1969 Cur LJ 423, wherein it was observed thus:-
"The question posed in the referring order, as already pointed out, refers to the appellant-company having had a right to oppose and having been denied the opportunity to oppose. No doubt it had been denied the opportunity to oppose the grant of temporary permits to those respondents that gives it a right of appeal, but it is matter of 'having opposed the grant of a permit' that does so, and here factually the appellant-company did not oppose the grant of the permits to those respondents because it could not do so for want of information or notice that the grant of such permits was going to the under the consideration of respondent 1. The only persons who can appeal under CI. (f) of Section 64 is the person who having opposed the grant of a permit is aggrieved by the order granting a permit, which, as stated, is not the situation of the appellant-company. So it had no right of appeal even under that clause."
9. Without going into the question whether the respondent company had proper notice of the application filed by the petitioner-company for the grant of the permit or not; the admitted fact is that the respondent-company did not oppose the grant of the permit in favour of petitioner-company and as such inview of the settled proposition of law, as is evident from the Full Bench decision referred to above, respondent No. 2 had no right of appeal under sub-clause (f) against the order of the State Transport Commissioner by which a permit was granted in favour of the petitioner-company. The appeal filed before the appellate authority by respondent No. 2 being not competent was rightly rejected, and as such no revision could be filed under CI. (h) as had been done in the present case because a revision under CI. (h) was competent only against an order passed by an appellate authority in a competent appeal which legally be filed. The impugned order admittedly has been passed by respondent No. 1 in exercise of his revisional powers under C!. (h) which obviously is without jurisdiction and cannot be sustained.
10. The next question that arises for consideration is as to what was the remedy available to respondent No. 2 to seek his redress. In my view, from the plain reading of the relevant provisions referred to avone, the only remedy available to respondent No. 2 ,was to have filed a revision under Section 64-A of the Act. Section 64-A was inserted by Section 59 of the Motor Vehicles (Amendment) Act No. 100 of 1956. This section provides for their revisional jurisdiction of the State Transport Authority in cases in which no appeal lies. As observed earlier, respondent No. 2 could not file appeal under C1. (f) as he had not opposed the grant of permit and as such so far as respondent No. 2 was concerned no appeal lay against the impugned order of the State Transport Commissioner.
11. Mr. Sodhi, learned counsel for respondent No. 2 in support of his contention, urged that it could not be said that the order of the State Transport Commissioner was not appealable as under Clause (f) appeal was provided against the order granting permit. According to the learned counsel the only bar provided under Cl . (f) was on the right of a particular individual who could not avail of the remedy of appeal in view of the fact that he had not opposed the grant of permit. It was also contended by the learned counsel that the provisions of Section 64-A could be invoked only in those cases where no appeal at all was provided, for example, an order refusing variation in permit conditions, or an order of replacement on the plea that such an order is unauthorised and without jurisdiction and not in those cases where appeal was provided, but the right could not in those cases where appeal was provided, but the right could not be availed of by a particular person in view of the disability provided in the statute. In my view the approach of the learned counsel is not correct and is untenable. The word 'appeal' has not been defined nor has its scope been defined nor has its scope been laid down in te statute. As to what does this word 'appeal' mean, I. D. Duam J. (as he then was) in Chautala Workers Co-op. Transport Society Ltd. v, State of Punjab, AIR 1962 Punj 94, observed thus:-
"An appeal in legal parlance is held to mean the removal of a cause from an inferior or subordinate to a superior tribunal or forum in order to test and scrutinise the correctness of the impugned decision. It amounts in essence and pith to a complaint to a higher forum that the decision of the subordinate tribunal is erroneous and therefore liable to be rectified or set right."
There is no manner of doubt that respondent No. 2 could complain to te higher tribunal against the decision of the lower tribunal only if he had opposed the grant of permit. Having not done so, respondent No. 2 could not file appeal under Clause (f) of S. 64 of the Act and as such so far as he is concerned it shall be deemed that against the order granting permit no appeal lay. The right of appeal is a substantive right and has been provided by the Legislature in the statute expressly. It is for the party claiming a right of appeal to bring himself within the clauses enumerated in the appeal section failing which he can only seek protection of the revisional provisions of Section 64-A of the Act. Respondent No. 2's appeal before the appellate authority was incompetent. That being so, further revision under Clause (h) can be filed against the appeallate authority's order in a competent appeal and the revisional authority tests the correctness and legality of that appellate order. if an appeal is incompetent and still it is filed and rejected on the ground of incompetency, it could not be held that revision against such an order lay under Clause (h). The aggrieved party in such circumstances has a clear remedy of approaching the revisional authority under Section 64-A of the Act, under which a very wide power has been given to the appropriate authority to revise suo motu or on an application of an aggrieved person to test the impropriety or legality of any order passed by a Regional Transport Authority in cases where no appeal lay. In my view the only possible conclusion on the combined reading of the relevant provisions of the statute is that against an order granting permit passed without having been opposed, no appeal lies under Clause (f) but a revision lies under Section 64-A of the Act. It therefore, follows that the impugned order passed by respondent No. 1, is illegal and without jurisdiction.
12. Before parting with the judgment, I may observe that it was conceded by the learned counsel that in the instant case the learned counsel that in the instant case the State Transport Commissioner while granting permit , was exercising the powers of Regional Transport Authority and no argument was advanced on the basis of Rule 4.37 and the arguments of the learned counsel were only confined to Sections 64 and 64-A,
13. For the reasons recorded above, I allow this petition and quash the order of respondent No. 1, dated 23rd July, 1968 (copy Annexure 'C' to the petition) but make no order as to costs.
14. Petition allowed