Madras High Court
Thiru P. Mani, Prop. Sri Shanmugha ... vs The Secretary, Regional Transport ... on 30 October, 2003
Author: D. Murugesan
Bench: D. Murugesan
ORDER D. Murugesan, J.
1. The petitioner is an existing stage carriage operator having a bus bearing No. TN 28/Y 3367 plying on the route Athani to Salem (via) Appakudal, Bhavani, Sankari, Mac Donald Choultry with I.S.T. between Salem and Erode (viz.) Sankari and Pallipalayam. One Thiru P. Gopal was also an existing stage carriage operator having a bus bearing No. T.C.W 5329 plying on the route Goli to Kodumudi (via) Kavemdapadi, Perundurai, Arachalur and Sivagiri with I.S.T between Golu and Sankari (via) Kavendapadi, Periyapuliyur, Bhavani and Kumarapalayam. The said Gopal filed an application for revision of timings to the above stage carriage permit before the Secretary, Regional Transport Authority, Periyar district. Timing conference was convened by the authority on 15.10.1992. The petitioner and others appeared before the Secretary, Regional Transport Authority and made their objections. However, the first respondent, by his order dated 19.10.1992, allowed the application of the said Gopal for revision of timings. Aggrieved by the said order, the petitioner filed appeal before the State Transport Appellate Tribunal which was also dismissed on 22.8.1994. Questioning the same, the petitioner has filed this writ petition.
2. Pending the proceedings, the said P. Gopal transferred the permit in favour of the second respondent Mr. V.P. Selvaraj. Learned counsel appearing for the petitioner submitted that as per Rule 248 of the Tamil Nadu Motor Vehicles Rules, a notice containing the existing and proposed schedule of timings should be published so as to enable the intending objectors to make their objections. Factually, in this case, no such existing and proposed schedule of timings were mentioned in the notice. and the petitioner was made aware of the proposed schedule of timings only at the time of the hearing. In the absence of compliance of rules, it is mandatory that the entire proceedings are liable to be set aside.
3. In support of the said submission, the learned counsel would rely upon the judgment of this Court reported in A.I.R. 1995 Madras 139 (TVL.CHOLAN ROADWAYS CORPN. LTD. -vs- TVL.AJANTHA TRAVELS, PONDICHERRY). The learned counsel would further submit that though the above legal point was not raised either before the first respondent or before the appellate authority, the petitioner is entitled to raise the same before this Court as new plea can be raised as question of law at any point of time. To support the said submission, learned counsel would rely upon the judgment of this Court (V.B.KALINGARAYAR -vs- RAJAM) and (KANDAMATH CINE ENTERPRISES (PVT.) LTD. -vs- JOHN PHILIPOSE).
4. Mr. M. Krishnappan, learned counsel appearing for the second respondent would on the other hand contend that after a notice was placed in the notice board, the petitioner appeared for the enquiry before the first respondent. Even after the application of the said Gopal was allowed, the petitioner did not raise this question before the Tribunal. Having failed to raise this question, it is not open to the petitioner to raise a new plea at this stage. He would also submit that in any event, the petitioner has not shown any prejudice due to the non-mentioning of the revision of timings and in the absence of prejudice, the petitioner is not entitled to succeed in challenging the impugned orders.
5. Insofar as the question of new plea is concerned, of course this Court in the judgment has held that a point involving pure question of law not raised in the written statement can be entertained when record is sufficient for its decision. A similar view has been taken by the Kerala High Court in the judgment . In that case also, in a suit arising under the Contract Act, a plea as to the description of the property sold was not raised at the time of written statement, but was sought to be raised at the appellate stage. The court held that in view of section 29 of the Contract Act as to whether a particular contract is void for uncertainity is a question of law and if the terms of the contract are vague and uncertain, the contract itself would be void and unenforceable under section 29 of the Contract Act. In that view of the matter, the Court held that such plea could be raised at the appellate stage.
6. Coming to the case on hand, Rule 248(1) of the Tamil Nadu Motor Vehicles Rules reads as under:
"248.Stage carriage - fixing Schedule of timing.--- (1) The Transport Authority may, if no schedule of timings is already fixed or approved for a stage carriage or a service of a stage carriages on any route, either on its motion or on an application made to it in writing, by a general or special order, fix and approve a schedule of timings for the particular stage carriage or the service of stage carriages in consultation with the applicant and the persons providing transport facilities on the route or sectors thereof and while approving a schedule of timings, on an application made to it in writing, it may approve the scheme with such modification as it deem necessary. It shall not be necessary for the Transport Authority to send individual notice of the timings conference to the operators concerned and shall be sufficient compliance of this provision, if the notice giving the existing and proposed schedule of timings and the time, date and place at which the subject will be discussed, is affixed on the notice board of the office of the Transport Authority and copies of notice sent to the applicant and the concerned S.T.U. And bus owners association of the district through which the route passes:
Provided that in the case of stage carriages of State Transport Undertakings tentative timings may be fixed by the Transport Authority without following the procedure laid down in the sub-rule in the case of introduction of the Stage Carriages on temporary permit."
7. Of course, as per the rule, the Transport Authority either on its own motion or on an application made to it in writing is entitled to fix and approve a schedule of timings for the particular stage carriage or the service of stage carriages by a general or special order. However, before doing so, the transport authority shall give a notice of existing and proposed schedule of timings and the time, date and place at which the subject will be discussed. Such notice shall be affixed on the notice board of the office of the Transport Authority. The affixture of notice containing the existing and proposed schedule of timings is to enable the intending objectors to make their objection as to the revision of timings. Inasmuch as the rule is explicitly clear, the notice so affixed by the transport authority shall contain the existing and the proposed timing schedule, the time, date and place at which the subject will be discussed. Only on compliance of the above, notice so affixed by the transport authority will be considered as proper notice given under Rule 248 of the Rules. Hence the petitioner is entitled to raise a new plea which is based on the provisions of rule 248 of the Rules before the appellate authority or for that matter before this Court.
8. On the above backdrop of question of law, it must be now considered as to whether the non-compliance of rule 248 of the Rules vitiates the impugned proceedings. As already pointed out, the object for which the notice is affixed in the notice board of the transport authority is to enable the intending objectors to make their objections as to the proposed revision of timings. Factually, in this case, the petitioner had participated in the enquiry. It is the case of the petitioner that he was made aware of the proposed timings only at the time of enquiry, He never whispered about the failure on the part of the transport authority in notifying the proposed timings in the notice. He allowed the transport authority to pass orders by fixing the revision of timings. Even when the petitioner filed an appeal before the Tribunal, he did not raise this point to contend as to what prejudice was caused to him for failure on the part of the transport authority in notifying the revised schedule of timings. He has questioned the revision of timings only on merits of the case as to how he will be affected by the revision of timings. In the circumstances, even if it is accepted that the petitioner is entitled to raise the question before this Court, he has to satisfy this Court as to the actual prejudice caused to him in the absence of the revised schedule of timings notified in the notice given under Rule 248 of the Rules. Even in the affidavit filed in support of the writ petition, no details as to the prejudice caused to the petitioner are given. In the absence of any prejudice shown in the affidavit which is not pleaded either before the original authority or before the appellate authority, I do not find any ground to interfere in the impugned order fixing the revision of timings. That apart, the revision of timings was fixed as early as on 19.10.1992 and the second respondent is operating on the revised timings. Hence, for these reasons, I do not find any merit to interfere with the impugned orders. Consequently, the writ petition is dismissed. No costs.