Madras High Court
Tvl. Pattukkottai Azhagiri Transport ... vs Tvl. V.K. Velayutham And Sons., ... on 12 August, 1992
Equivalent citations: (1993)1MLJ249
ORDER Srinivasan, J.
1. The petitioner is a State owned transport undertaking, operating stage carriage services in the entire North Arcot Ambedkar District/ Tiruvannamalai-Sambuvarayar District and also on the inter district and inter-state routes. The first respondent made an application for the grant of stage carriage permit before the second respondent in respect of the route Vellore to Alangayam, on 14.9.1989. The second respondent rejected the same as one not in consonance with public interest, by order dated 11.2.1991. In his order hestated that there was no representation from the public or any quarters that additional services had to be provided on the route in question and there were already adequate number of buses owned by the private operators and State Transport Undertakings on the route and the introduction of any additional, but facility would lead to unhealthy competition endangering public safety. It was also observed by him that the sector of the route in question, from Vellore Bus Stand to Officer's Line, of a length of 0.2 km. overlapped the approved scheme route Vellore to Kadapakkam, published in G.O.Ms. No. 2290, Home, dated 24.9.1974 in Tamil Nadu Government Gazette No. 43(J), dated 6.11.1974, by the State Transport undertakings. He referred to the decision of the, Supreme Court of India in P.R.C. v. Egappan C.A. No. 1758 of 1986 doted 24.11987, and observed that no permit or variation could be granted to persons other than the State transport undertakings on a route or part thereof covered by approved scheme. He also referred to the applicant's history sheet during his tenure as a bus operator and observed that punishments for offences of non-payment of lax and overload of passengers had been imposed on the applicant and there was no reason to show any special consideration just because their application seeking renewal of their existing permit on the route Katpadi-Thorapadi and subsequent applications for grant of permit were rejected by the Regional Transport Authority, which was only a reflection of the applicant's past performance and lack of merits.
2. Aggrieved by the order, the first respondent preferred an appeal to the third respondent under Section 89 of the Motor Vehilces Act (hereinafter referred to as 'the Act'). By order dated 17.12.1991, the third respondent allowed the appeal, set aside the order of the second respondent and directed the latter to issue a permit to the applicant curtailing the portion of 0.2 km. which overlapped the approved scheme atone end. It was also clarified by the third respondent that a permit shall be issued to the applicant from the officer's Line, Vellore to Alangayam and the bus of the applicant shall not enter the Vellore Bus Stand on any account. The third respondent held that the second respondent was in error in taking into account the history sheet and some lapses committed by the first respondent 15 years previously and in observing that grant of permit would lead to unhealthy competition endangering public safely. It was also held by the third respondent that the over lapping portion of 0.2 km. was very negligible and the second respondent could well have curtailed and granted the permit in respect of the remaining portion. He observed that adding one more but in the route will not create any competition, much less unhealthy competition.
3. The petitioner was not a party to the proceedings before the second respondent or the third respondent. He has filed this writ petition on the ground that the third respondent had acted in excess of jurisdiction and the order passed by the third respondent suffers from errors of law and material irregularity. It is prayed in the writ petition that the order of the third respondent granting permit to the first respondent shall be quashed.
4. The first contention put forward by learned Counsel for the petitioner is that the appeal filed by the first respondent before the third respondent against the order of the second respondent was not maintainable in view of the provisions of Section 103(2)(a) and (3) of the Act. According to him, the order of the second respondent is one of refusal to entertain the application of the first respondent under Section 103(2)(a) of the Act, with the result, Sub-section (3) of the said section would apply and no appeal shall lie against the same. Section 103 occurs in Chapter VI of the Act, which contains special provisions relating to State Transport Undertakings. Section 98 of the Act provides that the provisions of the chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter V or in any other law for the time being in force or in any other law for the time being in force in any instrument having effect by virtue of any such law. Section 103 of the Act relates to issue of permits to State transport undertakings. Sub-see(1) of Section 103 of the Act is to the effect that where, in pursuance of an approved scheme, any state transport undertaking applies in the prescribed manner for a stage carriage permit or a goods carriage permit or a contract carriage permit in respect of a notified area or notified route, the State Transport Authority concerned shall issue such permit to the State transport undertaking, notwithstanding anything to the contrary contained in Chapter V. Sub-sections (2) and (3) of the said section are in the following terms:
(2) For the purpose of giving effect to the approved scheme in respect of a notified area or notified route, the State Transport Authority or, as the case may be, the Regional Transport Authority concerned may, by order:
(a) refuse to entertain any application for the grant or renewal of any other permit or reject any such application as may be pending:
(b) cancel any existing permit;
(c) modify the terms of any existing permit so as to:
(i) render the permit ineffective beyond a specified date;
(ii) reduce the number of vehicle authorised to be used under the permit;
(iii) curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route.
(3) For the removal of doubts, it is hereby declared that no appeal shall lie against any action taken, or order passed, by the State Transport Authority or any Regional Transport Authority under Sub-section (1) or Sub-section (2).
5. It is argued that when the second respondent rejected that application of the first respondent, on the ground that a part of the route for which the application was made overlapped the approved scheme route Vellore to Kadapakkam, it tantamounts to a refusal on the part of the second respondent to entertain the application within the meaning of Clause (a) of Sub-section (2) of Section 103 of the Act. It is contended that the fact that the second respondent had referred to the history sheet of the first respondent and the public interest in the matter of grant of permit, would not change the character of the order and it would nonetheless be a refusal to entertain the application.
6. I do not agree with the contention. If the second respondent had intended to refuse to entertain the application under Clause (a) of Sub-section (2) of Section 103 of the Act, he ought to have done so in limine, without referring to any other factor. The meaning of the word "entertain" has been subject matter of consideration in Samarth Transport Corporation (P) Ltd. v. The Regional Transport Authority, Nagpur . The court observed, The word "entertain" may mean to receive on file or keep on file and in that sense the Authority may refuse to keep an application on its file by rejecting it either at the time it is filed or thereafter. It does not cannote any time but only described the scope of the duty under that clause. It can only mean that the authority cannot dispose of the application on merits but can reject it as not maintainable. Any other meaning given to this word leads to an anomalous position, for even if the approval of the scheme had been brought to the notice of the Regional Transport Authority, it would have to order the renewal of the permit and thereafter it would have to cancel the permit, presumably, on an application filed by the State transport undertaking.
7. The second respondent has referred to the merits of the claim made by the first respondent by taking into consideration the public interest in the matter. In fact, the reason given by him in his order is that introduction of an additional bus facility would lead to unhealthy competition endangering the public safety. He has set out the over lapping of the route only as the second reason. The third reason given by him is based on his history sheet of the first respondent. Ultimately, the last sentence of the order of the second respondent reads that 'the application is therefore rejected as not in consonance with public interest'. That also makes it clear that the second respondent entertained the application and considered the merits of the same and passed an Order on merits. It is futile to contend that the second respondent refused to entertain the application of the first respondent and consequently no appeal would lie against the said order. There is no doubt whatever that the order of the second respondent amounted to a refusal to grant a permit within the meaning of Section 89(1)(a) of the Act and, therefore, appealable.
8. It is argued by learned Counsel for the first respondent that even if the order of the second respondent was not an appealable one, it could be revised by the third respondent by exercise of its powers of revision under Section 90 of the Act. According to him, the fee payable for an appeal and revision under the Act is the same and the period of limitation is also the same. Reliance is placed on the judgment, of the Supreme Court in Nilkanth Prasad v. Suite of Bihar , in which it has been held that the appellate authority was entitled to revise the order of the Regional Transport Authority, even if the appeal was incompetent, as the Regional Transport Authority had not done its duty under the law and that the appeal board had vast powers of revision.
9. Learned Counsel for the petitioner submits that power of revision could be exercised only if the order of the State Transport Authority or the Regional Transport Authority is improper or illegal and in this case the third respondent has found in its order that the second respondent's refusal to grant permit on the ground that it would lead to unhealthy competition endangering public safety, was not in accordance with law. It is also found by the third respondent that the second respondent had not acted properly inasmuch as it had failed to exercise the power to curtail the area which overlapped the approved scheme route, particularly when the overlapping portion was of very negligible length of 0.2 km. Thus, the finding of the third respondent is that the second respondent's order was improper and illegal. No doubt, the third respondent has not stated anywhere that it is exercising the power of revision in the view that the appeal before it is not maintainable. I have already held that the appeal was maintainable. Even if it is found that the appeal was incompetent, the order passed by the third respondent could be justified under Section 90 of the Act, which confers powers of revision on the third respondent. The contention of the learned Counsel that the provisions of Chapter VI override the provisions of Chapter V and the other laws and in view of the same, power of revision could not be exercised by the third respondent is without any substance. The language of Section 90 of the Act is very wide and all orders of the State Transport Authority or Regional Transport Authority against which no appeal lies will be subject to the power of revision under that section.
10. It is next contended by the petitioner's counsel that curtailment of a route can be granted only with reference to an existing permit and in the present case, a fresh permit is being issued to the first respondent and the power of curtailment is not available to the third respondent. For this purpose, reliance is placed on Section 103(2)(c)of the Act. That part of the Section has already been extracted. Under Sub-section (c) thereof, the State Transport Authority or the Regional Transport Authority, may modify the terms of the existing permit so as to curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route.
11. Reliance is placed on the judgment in Cheran Transport Corporation (P) Ltd. v. The State Transport Appellate Tribunal (1978) 2M.L.J. 136. It was held in that case that the Tribunal erred in exercising its discretion and granting interim directions without having regard to Section 68-F (1-D) of the old Act. The facts of that case have no relevance to the present case.
12. Learned Counsel refers to the judgment of the Supreme Court in Pandiyan Roadways Corporation Ltd. v. Thiru M.A. Egappan , which is the one cited by the second respondent in his order. In that case, under a scheme for a route published in the gazette it was proposed to exclude completely all other persons from operating their stage carriage services under permits covering the entire route, except those persons mentioned in Annexure II to the said scheme and the operators whose names had been mentioned in Annexure II to the Scheme were existing operators on different sectors of the notified route on the date of publication of the scheme. It was held that an operator whose name was not included in the Annexure to the scheme and an operator who was operating on a non-scheme route could not operate the stage carriage on the notified route or a portion thereof even though he might have been granted variation of his permit to operate on a sector of the notified route. It was held that an application for the variation of a permit held by the operator in question was in fact an application for a permit and it fell within the mischief of Section 68-F(l-D) of the old Act. The court pointed out that the principle underlying Section 68-F(l-D) is that the number of services on such a route should be frozen of the publication of a scheme under Section 68-C. That judgment will have no bearing on the present case.
13. My attention is drawn to a recent judgment of the Supreme Court in A.P. State Road Transport Corporation v. P.V. Rammohan Chowdhary . It was held that even on a partial overlapping approved scheme, private operators have been totally prohibited to have corridor shelters and could no longer enter into the frozen area, route or part thereof and obtain permit to render transport service to the travelling public. That judgment also will not help the petitioner.
14. In the present case, the overlapping part has been excluded and the grant of permit has been curtailed. The application filed by the first respondent is one under Section 70 of the Act. Section 72(1) of the Act enables a Regional Transport Authority to grant a stage carriage permit in accordance with the application or with such modifications as it deems fit the power was available to the second respondent to grant permit with such modifications as were necessary and the same power is undoubtedly available to the appellate authority viz., the third respondent. It is settled law that the powers of the Tribunal are co-extensive with those of the Regional Transport Authority. N. Samhandam v. S. Khadar Sheriff . It is in exercise of the said power under Section 72(1) of the Act, the third respondent has curtailed the permit by suitable modification, there by excluding the overlapping portion.
15. Learned Counsel for the petitioner has also relied on the judgment of the Supreme Court in Ramkrishna Verma v. State of U.P. , in support of his contention that the provisions of Chapter VI of the Act override the provisions of Chapter V. Reliance is placed on the observation that no consider protection to private operators is permissible with reference to scheme routes and no private operator has a right to apply under Section 80 of the Act for and obtain permits to ply the stage carriages on the approved or notified route/routes or areas or portion thereof. The ruling has no bearing on the facts of this case.
16. In view of the curtailment of the permit and exclusion of the overlapping portion, the notified scheme is not in any manner affected and the route for which permit is now directed to be granted by the third respondent falls entirely outside the area of the scheme. The petitioner cannot have any grievance against the same.
17. The First respondent has raised an objection that the petitioner is not an aggrieved person and he cannot maintain the writ petition challenging the grant of permit in his favour. He has also referred to the fact that under the present Act, the policy regarding grant of permits has been considerably liberalised and the State Transport Authority shall not ordinarily refuse to grant an application for permit. Reliance is placed on the observations made by the Supreme Court in Mithilesh Garg v. Union of India A.I.R. 1992 S.C. 447. The following passages in the judgment are very instructive and worth reproduction:
5. A comparative reading of the provisions of the Act and the old Act makes it clear that the procedure for grant of permits under the Act has been liberalised to such an extent that an intended operator can get a permit for asking irrespective of the number of operators already in the field. Under Section 57 read with Section 47(1) of the old Act an application for a stage carriage permit was to be published and kept for inspection in the office of the Regional Transport Authority so that the existing operators could file representations/ objections against the said application. The application, along with objections, was required to be decided in a quasi judicial manner. Section 47(3) of the old Act further permitted the imposition of limit on the grant of permits in any region, area or on a particular route. It is thus obvious that the main features of Chapter IV" control of transport vehicles" under old Act were as under:
1. The application for grant of permits were published and were made available in the office of the Regional Transport Authority so that the existing operators could file representations;
2. The applications for grant of permits along with the representations were to be decided in quasi judicial manner; and
3. The Regional Transport Authority was to decide the applications for grant of permits keeping in view the criteria laid down in Section 47(1) and also keeping in view the limit fixed under Section 47(3) of the Act. An application for grant of permit beyond the limited number fixed under Section 47(3) was to be rejected summarily. 6. The Parliament in its wisdom has completely effaced the above features. The scheme envisaged under Sections 47 and 57 of the old Act has been completely done away with by the Act. The right of existing - operators to file objections and the provision to impose limit on the number of permits have been taken away. There is no similar provision to that of Section 47 and Section 57 under the Act. The Statement of Objects and Reasons of the Act shows that the purpose of bringing in the Act was to liberalise the grant of permits. Section 71(1) of the Act provides that while considering an application for a stage carriage permit the Regional Transport Authority shall have regard to the objects of the Act. Section 80(2), which is the harbinger of Liberalisation, provides that a Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act. There is no provision under the Act like that of Section 47(3) of the old Act and as such no limit for the grant of permits can be fixed under the Act. There is, however, a provision under Section 71(3)(a) of the Act under which a limit can be fixed for the grant of permits in respect of the routes which are within a town having population of more than five lakhs.
More operators mean healthy-competition and efficient transport system. Over-crowded buses, passengers standing in the aisel, clinging to the bus-doors and even sitting on the roof-tops are some of the common sights in this country. More over one finds a bus which has noisy engine, old upholstry, uncomfortable seats and continuous emission of black-smoke from the exhaust pipe. It is, therefore, necessary that there should be plenty of operators on every route to provide ample choice to the commuter-public to board the vehicle of their choice and patronise the operator who is providing the best service. Even otherwise, the liberal policy is likely to help in the elimination of corruption and favouritism in the process of granting permits. Restricted licensing under the old Act led to the concentration of business in the hands of few persons thereby giving rise to a kind of monopoly, adversely affecting the public interest. The apprehensions of the petitioners that too many operators on a route are likely to affect adversely the interest of weaker section of the profession is without any basis. The transport business is bound to be ironed-out ultimately by the rationale of demand and supply cost, of a vehicle being as it is the business requires huge investment. The intending operators are likely to be conscious of the economics underlying the profession. Only such number of vehicles would finally remain in operation on a particular route as are economically viable. In any case the transport system in a state is meant for the benefit and convenience of the public. The policy to grant permits liberally under the Act is directed towards the said goal.
It is thus a guaranteed right of every citizen whether rich or poor to take up and carry on, if he so wishes, the motor transport business. It is only the State which can impose reasonable restrictions within the ambit of Article 19(6) of the Constitution of India. Sections 47(3) and 57 of the old Act were some of the restrictions which were imposed by the Stale on the enjoyment of the right under Article 19(1)(g) so far as the motor transport business was concerned. The said restrictions have been taken away and the provisions of Section 47(3) and 57 of the old Act have been repealed from the statute book. The Act provides liberal policy for the grant of permits to those who intend to enter the motor transport business. The provisions of the Act are in conformity with Article 19(1)(g) of the Constitution of India. The petitioners are asking this Court to do what the Parliament has undone. When the State has chosen not to impose any restriction under Article 19(6) of the Constitution of India in respect of motor transport business and has left the citizens to enjoy their right under Article 19(1)(g) there can be no cause for complaint by the petitioners.
18. It is, therefore, clear that the petitioner cannot make any complaint against the grant of permit for a route which does not fall within the area of the scheme. The grant of permit to the first respondent with the curtailment as directed by the third respondent cannot be objected to by the petitioner. Learned Counsel for the petitioner submits that the statutory authority viz., the third respondent is bound to act in accordance with law and when the statutory provisions are ignored or violated, the petitioner is certainly entitled to bring it to the notice of this Court and get the order of the third respondent quashed. There is no substance in this contention, as it has been repeatedly held that for maintaining a writ petition, the petitioner should be a person aggrieved and even in cases of statutory violations, a writ cannot be entertained at the instance of a person who is not aggrieved. The Supreme Court has in Kalyan Singh v. State of U.P. A.I.R. 1962 S.C. 1183, held that a person whose right to ply his buses had been lawfully extinguished, was not entitled to maintain an appeal challenging the right of the State Transport Undertaking to ply their buses with or without permits and a petition under Article 232 of the Constitution of India could not be maintained.
19. In the Nogar Rice and Flour Mills and Ors. v. N. Teekappa Gowda & Brothers and Ors. , it was held that a rice mill owner had no locus standi to challenge under Article 226 of the Constitution of India, the setting up of a new rice mill by another, even if it was in contravention of Section 8(3)(c) of the Rice Milling Industry (Regulation) Act, 1958), because no right vested in such a person was infringed. The position was reiterated in Nasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed . It was held that a rival in trade, in that case a cinema theatre owner, had no locus standi to invoke the special jurisdiction under Article 226 of the Constitution of India.
20. Following the said rulings, a Full Bench of this Court held in M.L. Krishnamurthy v. The District Revenue Officer, Vellore (1989)2 LW. 442, that an existing rice mill owner was not a person aggrieved, when permit or licence under the Rice Milling Industry (Regulation) Act was granted to another person, for entitling him to file a writ petition challenging the grant. In Mithilesh Garg, etc. v. Union of India and Ors. etc. etc. , already referred to in this judgment, the Apex Court has quoted in extenso the observations made by Sarkaria, J., in J.M. Desai's case , and reiterated the proposition. In the circumstances, the petitioner is not a person aggrieved to maintain the writ petition against the grant of permit to the first respondent with curtailment.
21. Learned Counsel for the petitioner places reliance on the decisions in Surendra Rao v. Regional Transport Authority, Gorakhpur and Quilon District Private Bus Operators Association v. State Transport Appellate Tribunal Ernakulam . In the former case it is held that an existing operator has an alternative remedy of revision before the tribunal against the order of the regional Transport Authority granting stage carriage permit to an applicant. That has no relevance in this case. In the latter case, it is held that any member of the public having sufficient interest can maintain an action for judicial redress for publis injury arising from breach of public duty or violation of some provision of the Constitution or the law and seek en-forcement of such public duty and observance of such constitutional or legal provision. The sine qua non is a public injury. Mere violation of a provision of law is not sufficient to enable the third party who is not aggrieved, to challenge the order in question. Hence, that judgment also does not hold the petitioner.
22. It is held in Mohammed Swalleh and Ors. v. IIIrd Additional District Judge, Meerut and Anr. , that the discretion under Article 226 of the Constitution of India shall not be exercised if there is no failure of justice. In the present case, there is absolutely no failure of justice and in fact justice has been done by the third respondent in directing issue of permit with curtailment, thus excluding the negligible overlapping portion of 0.2 km. between Vellore Bus Stand and Officers' Line. The third respondent has also taken care to issue a direction that the bus of the first respondent shall stop with officers' line and shall not enter the Vellore Bus Stand on any account. In those circumstances, the petitioner cannot make any grievance whatever against the grant of the permit.
23. In the result, the writ petition fails and it is dismissed, with costs. Counsel's fee Rs. 1,000.