Patna High Court
Rajput Transport Co. vs Shri Nand Kishore Prasad on 15 March, 1973
Equivalent citations: AIR1973PAT373, AIR 1973 PATNA 373
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT Untwalia, C.J.
1. At the relevant time in the year 1970 the petitioner held a stage carriage permit for the route-Dumraon-Dehri-in the district of Shahabad (now districts Bhojpur and Rohtas). This permit which had been granted a few years back was valid up to December. 1971. The timing of running this service, which was coming from before and which was fixed at the time of the last renewal granted sometime before 1970. was 11.30 A. M. for departure from Dumraon reaching Dehri at 4.30 P. M. For the return journey the time of departure from Dehri was 5.15 P. M. reaching Dumraon by 11.30 P. M. Respondent No. 1 also at the relevant time, held a stage carriage permit on the above mentioned route. His time of departure from Dumraon was 5.30 A. M. reaching Dehri at 10.30 A. M. For back journey the time for departure from Dehri was 12.10 P.M. and that of arrival at Dumraon was 4.50 P. M. The petitioner filed an application before the South Bihar Regional Transport Authority, Patna, for the revision of the tunings of its service. But this application was rejected. On 2-5-1970 it filed another application for change of its timings which was allowed not by the Regional Transport Authority but by its Chairman by his order dated 19-5-1970 (annexure I) in purported exercise of his delegated power. According to the change allowed in the timing the time of departure of the petitioner's service from Dumraon became 5 A. M. instead of 11.30 A. M. its arrival time at Dehri became 9.30 A. M. instead of 4.30 P. M. and on the return journey the departure time from Dehri was changed to 11 A. M. instead of 5.15 P. M. consequently changing the arrival time at Dumraon to 3.30 P. M. instead of 11.30 P. M. This was done in spite of the objection of respondent No. 1 who was vitally affected, according to him. by the change of timing allowed to the petitioner. Respondent No. 1 filed a revision application under Section 64-A of the Motor Vehicles Act, 1939 (hereinafter called the Act) before the State Transport Authority on 25-5-1970. It is not necessary for me to state the history of stay orders passed by the Chairman of the State Transport Authority. Suffice it to say that by the final order passed by the Chairman of the State Transport Authority on 14-9-1970 (annexure 2) he has not only vacated the order of stay but rejected the revision application also for want of jurisdiction. Respondent No. 1 thereafter-filed a second revision application before the State Government under Section 64-A introduced in the Act by the Motor Vehicles (Bihar Amendment) Act. 1949 (Bihar Act 27 of 1950). Both the sections were operating in the field and their different scopes were reconciled by a decision of the Supreme Court in Tansukh Rai v. Nilratan Prasad, (AIR 1966 SC 1780). Hereafter in this judgment I shall refer to Section 64-A of the Act as Central Section 64-A and Section 64-A introduced by the Bihar Amendment as Bihar Sec-
tion 64-A. By order dated 11-11-1970 (annexure 3) the Transport Minister of the Government of Bihar has allowed the revision application and set aside the orders of the Chairman of the State Transport Authority as also of the Chairman of the South Bihar Regional Transport Authority contained in annexures 2 and 1 respectively. The learned Minister has sent back the case to the Regional Transport Authority directing it to call for reports from the local authorities on the petition filed by the petitioner on 2-5-70 and to dispose of the said petition acording to law after hearing the objectors and considering the said reports. The petitioner feeling aggrieved by the said order filed this writ application on 23-11-70. It was admitted on 26-11-70-The operation of the order of the State Government contained in annexure 3 was eventually stayed by order of the Bench passed on 9-12-70. A counter-affidavit has been filed on behalf of respondent no. 1.
2. Mr. Prabha Shanker Mishra, learned Counsel for the petitioner has urged the following points-
(i) That the Chairman of the Regional Transport Authority had jurisdiction to alter the timings and the view of the Transport Minister to the contrary is erroneous in law.
(ii) That no revision under Bihar Section 64-A of the Act lay to the State Government unless a revision under Central Section 64-A before the State Transport Authority was competent. During the discussion of this point, learned Counsel submitted that even if the order of the Chairman of the Regional Transport Authority was revisable by the State Government under Bihar Section 64-A. the application filed by respondent no. 1 before the State Government was beyond the period of thirty days prescribed in that Section and, hence, was barred by limitation.
3. During the course of argument learned Counsel for the petitioner also stated that the permit granted to the petitioner had been renewed in December 1971 with the same timings which were fixed on alteration by order of the Chairman dated 19-5-1970 and since the timing fixed at the time of renewal has not been challenged by respondent no. 1. that is final. In reply Mr. Saptami Jha, learned Counsel for respondent No. 1. pointed out that this statement of fact has not been put before this Court by any supplementary affidavit; it is. therefore, not known whether the statement of fact is correct or not. Moreover, learned Counsel pointed out that the renewal must have been granted mentioning all those altered timings, because of the stay order passed by this Court in this writ application. During the operation of this stay order, the timings which attached to the permit of the petitioner were the altered ones prevalent at the time of the renewal of the permit. We do not think that it is competent or advisable for us to enter into the controversy of the timing mentioned in the renewed permit. Although the renewal is said to have been granted more than a year ago no fact was stated by filing a supplementary affidavit. And, we do not express any opinion in regard to the effect of the order of renewal mentioning the altered timings. In that regard we leave the parties to follow such course which may be available to them. But this much is certain that this case has got to be decided on its own merits. I accordingly proceed to discuss the points raised on behalf of the petitioner and combated by Mr. Jha on behalf of respondent No. 1.
4. Some drastic changes were made in the Act by Central Act 100 of 1956. Before the said amendment. Section 48 (c) of the Act had given power to the Regional Transport Authority to "regulate timings of arrival or departure of stage carriages whether they belong to a single or more owners". Section 48 (d) dealt with the power of the Regional Transport Authority to attach to a stage carriage permit any prescribed condition or any or more of the conditions enumerated in Clause (d). In such a situation there was a delegated power to the Chairman of the Regional Transport Authority to exercise the power under Section 48 (c) under the Bihar Motor Vehicles Rules. 1940. In M. Kali Mudaliar v. A. Vedachala Mudaliar. (AIR 1952 Mad 5451 a Bench of the Madras High Court consisting of Rajamannar, C. J. and Venkatarama Iyer, J.. held that regulating or fixing of timings was not a condition attaching to a stage carriage permit; it was a power other than the power of attaching a condition to the permit. I have referred in detail to the change brought about by the Central Amending Act -- Act 100 of 1956 -- in the Act in regard to the power of fixing of timetable for the running of a stage carriage. Section 46 of the Act requires the filing of an application for stage carriage permit mentioning therein the time-table of the normal service in accordance with Clause fc). If this time-table is found to be violative of the provisions of the Act relating to the speed at which vehicles may be driven then the Regional Transport Authority has to refuse to grant a stage carriage permit. Section 48 (1) of the Act. as it stands after the 1956 amendment, reads as follows-
"Subject to the provisions of Section 47, a Regional Transport Authority may, on an application made to it under Section 46, grant a stage carriage permit in accordance with the application of with such modifications as it deem fit of refuse to grant such a permit :
Provided that no such permit shall be granted in respect of any route or area not specified in the application."
The relevant provision of Sub-section (3) says-
"The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a service of stage carriages of a specified description or for one or more particular stage carriages and may. subject to any rules that may be made under this Act. attach to the permit any one or more of the following conditions, namely-
x x x x x
(iii) that copies of the time-table of the service or of particular stage carriages approved by the Regional Transport Authority shall be exhibited on the vehicles and at specified stands and halts1 on the route or within the area;
(iv) that the service shall be operated within such margins of deviation from the approved time-table as the Regional Transport Authority may from time to time specify."
Even after this amendment, a Bench of this Court consisting of Ramaswami, C. J. and R. K. Choudhary. J., held in Sukhdeo Kumar v. State of Bihar, (AIR 1959 Pat 580) that the fixing of time-table was not a condition of the permit. In this regard, as pointed out by me in Badri Narain Singh v. Under Secy. to the Govt. of Bihar, (AIR 1972 Pat 361). there is a difference of opinion between various High Courts. I, however, stick to my view which I have expressed in Badri Narain Singh's case that the fixing of timings of service is not a condition attaching to the permit but it is a power of the Regional Transport Authority other than the one which it has got of affixing and attaching as condition to the permit. That being so. the order of the Chairman of the Regional Transport Authority altering the time was not an appealable order. I have also held in Arvind Kumar Singh v. Ansar Motor Service. (1969 BLJR 563) that an order changing the condition of service is not appealable. But that apart, in the view I have taken that it is not a condition attached to the permit, it is plain that the order contained in annexure 1 was not. appealable. Question, however, is whether the Chairman. Regional Transport Authority had jurisdiction to alter the timing. In that regard, the delegated power was there before and even after the amendment of the Act. It is somewhat strange to find that the delegation of the power to the Chairman under the Bihar Rule 43-A was with reference to the power under Section 48 (c). as it stood prior to the amendment of 1956. It would be noticed from the relevant provisions of the Act, as they stand after the amendment, that the general power conferred on the Regional Transport Authority under Section 48 (c) is no longer there. The power to fix timing must be spelt out from Section 48 (1). If the stage carriage permit is granted without any modification on the basis of the timetable given in the application then that is the timing fixed by the Regional Trans-port Authority. It may grant the per-mit with such modification as it deems fit to make including the modification in the time-table. Then the modified timetable becomes the timing fixed by the Regional Transport Authority at the time of the grant of permit. It is undisputed -- and, in my opinion rightly -- that this timing can be changed for valid reasons at the time of renewal of a permit, because the procedure prescribed and the power to grant renewal are almost identical. But then the Act. as it stands after 1956 amendment has taken away the general power of the Regional Transport Authority under Section 48 (c). There does not seem to be any escape from the position that once the timing has been fixed at the time of grant of permit or its renewal it cannot be changed by the Regional Transport Authority during the currency of the permit. If the Regional Transport Authority cannot do it. it is plain, its delegate, namely, the Chairman also cannot do it. Rule 43-A of the Bihar Motor Vehicles Rules cannot confer power on the Chairman to change the timings, if the power is not there in the Statute. The condition in Clause (iii) of Sub-section (3) of Section 48 is only for the purpose of exhibition of the copies of the time-table as approved by the Regional Transport Authority. The approval of the timetable. I reiterate, can only be done at the time of grant or renewal of a permit. Learned Counsel for the petitioner laid great stress on Clause (iv) of Section 48 (3) and submitted that this confers the power on the Regional Transport Authority to change the time-table from time to time. I unhesitatingly reject this argument. Only the margins of deviation are to be fixed as a condition attached to the permit and this condition can be changed from time to time. It is difficult to conclude from Clause (iv) of Section 48 (3) that the Regional Transport Authority has got power to change the time-table altogether.
5. Learned Counsel for the petitioner placed reliance on a decision of a learned single Judge of the Allahabad High Court in Sardar Madan Mohan Singh v. Regional Transport Authority, (1958 All LJ 894) in support of his view that even after the amendment of the Act in 1956 the power to change timing is there in the Regional Transport Authority. I respectfully differ from this view. The power has been spelt out with reference to Clauses (iv) and (xxi) of Section 48 (3) of the Act. I have already dealt with the point that it is not a condition attached to the service and the timing cannot be changed in exercise of power of the Regional Transport Authority of making any variation in the condition attaching to the permit nor the power can be spelt out from Section 48 (3) (iv). I, therefore, reject the first point urged on behalf of the petitioner.
6. Coming to the second point, I would first like to state that respondent No. 1 undoubtedly had filed a revision application before the State Transport Authority under Central Section 64-A. The State Transport Authority, as would appear, had been constituted, no doubt, because the prescribed authority for filing an appeal under Section 64 of the Act at the relevant time prescribed by Rule 71 of the Bihar Motor Vehicles Rules was the Appeal Board which consisted of a single member, namely, the Chairman of the State Transport Authority. If the State Transport Authority was non-existent, there could not be a Chairman of that Authority and the Chairman could not act as Appeal Board. But it was not so. The only defect in the entertainment of the revision applications. as pointed out by the Chairman of the State Transport Authority in his order (annexure 2), is that as an Appeal Board, he can hear appeals but he could not hear revisions as Chairman of the State Transport Authority. Other members had not been nominated by the State Government and in absence of them he alone had not been authorised to hear revisions. At one stage of the impugned order the Chairman observed that the revision application should be kept pending till other persons also are made members of the State Transport Authority tout finally he did not keep this revision pending and dismissed it. In my opinion, the revision filed before the State Transport Authority by respondent No. 1 was competent and merely because there was not sufficient number of persons constituting the Authority to hear and dispose of that revision it is difficult to, subscribe to the view urged on behalf of the petitioner that no revision lay to the State Transport Authority under Central Section 64-A and that the only remedy of respondent No. 1 was to go straight in revision before the State Government under Bihar Section 64-A.
7. It is undisputed in view of my judgment in Arbind Kumar Singh's case, 1969 BLJR 563 following the Supreme Court decision in (AIR 1966 SC 1780) that if one revision was competent before the State Transport Authority, a second revision was equally competent before the State Government.
8. In the light of the discussion and decision on point No. 2 urged on behalf of the petitioner, it is not necessary to deal with the alternative point urged on its behalf. But suffice it to say that this point does not seem to have been taken before the Transport Minister nor in this writ application; it does not arise and needs no answer.
9. In the result, this writ application fails and is dismissed with costs payable to respondent No. 1 hearing fee Rs. 100/- only.
Sarwar Ali, J.
10. I agree.