Orissa High Court
Samuel Pani vs Ramesh Chandra Mallick And Ors. on 15 April, 1993
Equivalent citations: AIR1994ORI231, AIR 1994 ORISSA 231
JUDGMENT R.K. Patra, J.
1. Certain disquieting and disturbing features are discernible in the judgment under challenge which have compelled us to say that a statutory Tribunal like that of opposite party No. 6 if it does not apply its mind to all relevant considerations, acts on considerations which are invalid law, makes a patent error basing on misinterpretation of relevant law governing the field and records perverse finding, it is liable to be judiciously administered with a 'potent drug'.
2. Following the supplementary reciprocal transport agreement arrived at between the States of Orissa and Bihar as published in the Orissa Gazette notification dated 13-12-1990 of the Commerce and Transport (Transport) Department under Sub-section (6) of Section 88 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act'), a new route Berhampur-Tata Via Jamsola has come into existence on the road map of the Eastern region of the country. As per the agreement, Orissa would operate two vehicles on one permit to perform one single trip daily covering a total distance of 697 K.Ms on the road. Then ensued tussle for getting permanent permit in respect of the aforesaid agreed inter-State route amongst the eight transport operators who made separate fifteen applications to the State Transport Authority, Orissa (hereinafter called as 'the S.T.A.'). The petitioner made three separate applications whereas the opposite party No. 1 made two separate applications for the purpose. The S.T.A. in its meeting held on 14-3-1991 took up the matter and having found four of the applicants absent rejected their applications and heard the remaining four applicants who were the petitioner, opposite party No. 1, one Prakash Chandra Sethi and Niranjan Sahoo. The petitioner and his father meanwhile filed two writ petitions vide O.J.C. Nos. 850 and 851 of 1991 under Articles 226 and 227 of the Constitution of India in this Court alleging inaction on the part of the S.T.A. in not disposing of the applications for grant of permit in their favour. This Court passed interim order restraining the S.T.A. from taking final decision in the matter till the disposal of the said writ petitions. In view of such interim order, the S.T.A. did not pronounce its decision on its deliberations held on 14-3-1991. After final disposal of the aforesaid O.J.C. Nos. 850 and 851 of 1991, the S.T.A. in its subsequent meeting held on 10-12-1991 took up the matter of opposite party No. 1, Prakash Chandra Sethi and Niranjan Sahoo and after considering rejected the application of opposite party No. 1 and by splitting the permit into two, granted one to the petitioner and the other to Prakash Chandra Sethi.
3. In view of the undisputed position that the reciprocal agreement envisaged one permanent permit which is not available to be split up, the petitioner being aggrieved by the splitting up of the permit into two and granting one to Prakash Chandra Sethi, filed M.V. Appeal No. 5 of 1992 before the State Transport Appellate Tribunal, Orissa, Cuttack opposite party No. 6 ('Tribunal' in brief). Prakash Chandra Sethi similarly being aggrieved by the splitting up of the permit and granting one to the petitioner filed M.V. Appeal No. 134 of 1991. Against the rejection of his application, opposite party No. 1 filed M.V. Appeal No. 11 of 1992, Niranjan Sahoo being aggrieved by the rejection of his application filed M.V. Appeal No, 8 of 1992. The Tribunal heard all the four appeals analogously and by the impugned common judgment dated 8-1-1993 at Annexure-8 set aside the decision of the S.T.A. holding that "it was not based upon proper appreciation of facts, materials and the legal position" and by allowing the appeal of opposite party No. 1 directed to grant him permanent permit to perform two trips daily with two vehicles. The petitioner challenges this decision of the Tribunal in this writ application filed under Articles 226 and 227 of the Constitution of India.
4. Perusal of the judgment of the Tribunal shows that it did not find any fault with the S.T.A. in rejecting the application of Niranjan Sahoo. In paragraph 6 of the judgment, the Tribunal addressed itself by observing "the real contest is now amongst the appellants Udayanath Pani (it means Samuel . Pani), Ramesh Chandra Mallick and Prakash Chandra Sethi", After considering their financial position, it rejected the application of Prakash Chandra Sethi by holding that he has no better claim than "other appellants Samuel Pani and Ramesh Chandra Malliek". In paragraph 9 of the judgment the Tribunal has observed "therefore, the consideration is now only limited to the other two appellants Samuiel Pani and Ramesh Chandra Malliek". Shri G. Rath, learned senior counsel submitted that after having accepted the financial stability of the petitioner, the Tribunal having not taken into consideration relevant materials and relevant law governing the field for grant of permit has gone away and its final decision in favour of opposite party No. 1 has become vulnerable. We find sufficient force in this submission.
5. The S.T.A. had granted permit in favour of the petitioner by taking into consideration inter alia that he is in possession of two vehicles i.e. OIU 5655 and OAU 777. In course of the hearing of the appeal before the Tribunal the opp. party No. 1 filed an affidavit alleging that OAU 777 which belonged to the father of the petitioner has been declared off road by the owner. The Tribunal has observed that "there is no counter to this fact from the side of Sri Samuel Pani....... As a result, he is left with only one vehicle i.e. OIU 5655 which is of 1989 model". The petitioner submitted note of argument (supported by affidavit) before the Tribunal which is at Annexure-9. In paragraph-4 of the said note of argument, it has been stated that the petitioner has. been operating the route in question on the basis of temporary stage carriage permit issued in his favour with effect from March, 1991 in respect of the vehicle OIU 5655 and OAU 777 and the vehicle OAU 777 has been replaced by vehicle OIC 9444 belonging to him and has obtained temporary permit with effect from 1-6-1992. In paragraph 9 of the note, this aspect of replacement of vehicle OAU 777 by OIC 9444 has been reiterated. The Presiding Officer of the Tribunal opposite party No. 6 was aware of the petitioner's filing his note of argument which is evident from the order No. 20 dated 18-12-1992 passed in M.V. Appeal No. 5 of 1992. The said order is quoted as follows :--
"Appellant (petitioner) files note of argu ments. Heard arguments vide order passed jn.
M.V. Appeal No. 134 of 1991. Call on 2-1-93 for judgment".
The Tribunal has obviously not bestowed its attention to the facts mentioned in paragraphs 4 and 9 of the note of argument and had it done so, it could not have arrived at the finding that the petitioner is left with only one vehicle OIU 5655. It is a clear case of non-consideration of relevant materials by the Tribunal. Similarly, while considering respective merits of the petitioner vis-a-vis opposite party No. 1, the Tribunal has held that the latter (opposite party No. 1) is of better merit on the requirements relating to experience and capability to provide proper facilities to the travelling public on the route in question. The petitioner submitted a comparative merit chart before the Tribunal which is at An-nexure-6. It was received by the Presiding Officer which is clear from order No. 23 dated 18-12-1992 in M.V. Appeal No. 134 of 1991. The order is quoted hereunder:
"The counsel for the both sides are present. The counsel for the respondent No. 3 (petitioner) files a statement of comparative merit. He also files certified copies of some temporary permits without any list of documents. Heard further arguments. Call on 2-1-93 for judgment."
Perusal of the merit chart Annexure-6 would show that in column I thereof, the petitioner has catalogued his merit position and in column No. III indicated the position of opposite party No. 1. As per the said comparative merit chart the petitioner has booking office and passengers' rest shed at Cuttack, owns garage facilities at Cuttack, Tata and has arranged garage at Aska Road, Berham-pur while operating the route in question on temporary permits. With regard to opposite party No. I it has been mentioned in the said chart that "he has arranged garage facility at Berhampur, Cuttack and Tata". The advantage of petitioner having booking office, passengers' rest house at Cuttack, owning of garage facility at Cuttack and Tata as well as arrangement of garage at Aska Road, Berhampur while operating the route in question on temporary permit, has simply been ignored by the Tribunal resulting its finding recorded in paragraph-10 of the impugned judgment-far being attacked. The petitioner has filed an affidavit dated 3-11-1992 (Annexure-7) before the Tribunal on 18-12-1992 along with seizure list and check-gate certificate. The said affidavit is on record in M.V. Appeal No. II of 1992, which shows that all is not well with opposite party No. 1. His vehicle OBA 2964 while operating on the basis of permanent permit on the route (sic) to Calcutta was seized on 7-3-1991 by the Motor Vehicle Inspector, Enforcement, Calcutta as it was running without counter-signature of West Bengal authorities. This fact has also been highlighted by the petitioner in his comparative merit chart filed before the Tribunal. This aspect of the matter has not at all been taken into consideration by the Tribunal while considering the case of opposite party No. 1.
The Tribunal has held that the opposite party No. 1 is in a better position to provide suitable new model buses including stand-by services for operation on the route in question and he is an efficient stage carriage operator who can provide better service facility to the travelling public than the petitioner. In coming to the said finding, the Tribunal noted that opposite party No. 1 is in possession of three vehicles of 1984, 1987 and 1989 models operating on other routes and for the route in question he has made arrangements to procure two new vehicles, It is well known that for considering an applicant for stage carriage permit, the dominant content which requires to be taken into account is interest of the public in general. If he is operating his three vehicles on other routes, there is little scope for him to withdraw those vehicles from those routes and place the same for service on the route in question. From mere arrangement to procure new vehicles to be placed for operation on the route in question, it cannot be said that public interest was kept in the fore-front by the Tribunal while considering the case of opposite parly No. 1.
The S.T.A. while considering relative merits of the applicants held the petitioner to be an existing operator satisfactorily operating on the line in question on the basis of temporary permit. The Tribunal has taken exception to the aforesaid view of the S.T.A. According to the Tribunal, the petitioner-was operating on the route on temporary permit since May, 1991 after consideration of the applications by the S.T.A. in March, 1991 and this being a post-application event cannot' be taken to be a plus-point in favour of the petitioner. This view of the Tribunal is wholly untenable in law and cannot be supported. There is no prohibition in law to take into consideration by the S.T.A. relevant materials or circumstances having bearing on the issue which may emerge during the period from the date of applications till it takes up the applications for consideration subject of course to the wholesome principles of natural justice.
6. In the case of Maharashtra State Road Transport Corporation v. Mangrulpir Joint Motor Service Co. (P) Ltd., AIR 1971 SC 1804, the Supreme Court has held that for considering the applications for grant of permit, public interest stands in the fore-front and accordingly, the Regional Transport Authority would have to consider respective qualifications of the applicants on the date of the actual consideration (vide paras 23 and 24). In the case of Ajantha Transport v. T.V.K. Transports, AIR 1975 SC 123, in paragraph 34 of the judgment while remitting the matter for reconsideration to the Appellate Tribunal, the Supreme Court observed as follows :--
"We have no doubt that, in view of the clarification of the law by us here, the Tribunal will dispose of the case in accordance with law and deal with all the facts and circumstances which have a bearing on public interest, including facts and circumstances which may have come into existence between the time when the grant was made and the time when the Tribunal reconsiders the claims to which the case is confined".
This aspect has further been clarified by the Supreme Court in the case of D. Prabhakara Rao v. D.P. Rao, AIR 1976 SC 1803. In paragraph 12 of thejudgment of the case, one of the guidelines set down by the Court is as follows:--
"4. An activist tribunal (RTA, and, in exceptional cases, even the STAT) may even collect useful information bearing on considerations set out in Section 47 and, after public exposure of such information at the hearing and reasonable opportunity to meet it, if anyone is adversely affected, put it into the crucible of judgment".
In view of this, we are of the view that the Tribunal has committed a patent error of law in coming to hold that "the preference given to Sri Samuel Pani because of his experience of operation on the temporary permit obtained during the interval period cannot be held to be a plus point for him. He had no such experience at the time of filing of his application for the permit and hence he cannot take advantage of this situation over his rival claimant on the consideration of experience".
7. Before concluding it is necessary to mention the submission of Mr. Mishra, learned counsel for the opposite party No. 1 who argued by referring to Rule 12 of the Orissa State Transport Appellate Tribunal Rules, 1974 that reception of additional evidence before the Tribunal is not permissible unless pre-conditions enumerated in the said Rule 12 are satisfied and different grounds referred to by the petitioner in the note of arguments at Annexure-9 and the comparative merit chart at Annexure-6 are not available to be taken into consideration. In the case of B. Prabha-kara Rao (supra) the Supreme Court was dealing with Rule 15 of Andhra Pradesh State Transport Appellate Tribunal Rules which is in pari materia with rule 12 aforesaid. The vires of the Rule 16 of Andhra Pradesh Tribunal Rules was challenged before the apex Court basing on the scope of Sections 57(4) and 64 of the Motor Vehicles Act, 1939 and the fitment of Rule 15 into the purpose and text of those provisions. After analysing Sections 47 and 57 of the Act, the Court observed that Rule 15 merely gives effect to what the sections intend and is not, therefore, ultra vires. The Court further observed that the rule is "good and covers familiar ground to enable just orders being passed. Reference to Order 41, Rule 27, C.P.C. and Section 540, Cr.P.C. proves this point. Justice to the public is the key note of Sections 47, 57 and Rule 15". Reception of materials by way of additional evidence relates to the domain of procedural law which are intended to be the handmaid of administration of justice and are not used as booby-traps.
8. We put it on record that by order No. 3 dated 25-1-1993 this Court directed as an interim measure to maintain status quo as on that date regarding operation of the route in question. This was modified by order No. 15 dated 25-2-1993 by virtue of which the opposite party No. 1 was permitted to operate the route with the vehicles as per the permit granted until further orders. If on the basis of the interim order the opposite party No. 1 has been operating the route in question, it does not put him in any advantageous position so far as his merit as an applicant to the route is concerned, as the interim order was made without the prejudice and subject to the rights and contentions of either parties.
9. For the aforesaid reasons, we are of the opinion that the judgment at Annexure-8 cannot be supported which is hereby quashed. The matter is remanded to the Tribunal opposite party No. 6 who will dispose of the same in accordance with law dealing with all the facts and circumstances, which have a bearing on public interest, and keeping the observations made by us in this judgment in view. We make the position clear that the Tribunal would confine its consideration to the cases of the petitioner, opposite party No. 1, Prakash Chandra Sethi (who had already filed O.J.C. No. 831 of 1993 challenging the very judgment) only. The Tribunal shall dispose of the matter within one month from the date of appearance of parties before it who are directed to appear before the Presiding Officer, opposite party No. 6 on 19-4-1993. There shall be no order as to costs.
L. Rath, J.
10. I agree.