Full Judgment Text
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PETITIONER:
P. KUMARASWAMY
Vs.
RESPONDENT:
STATE TRANSPORT APPELLATE TRIBUNAL, MADRAS AND ANR.
DATE OF JUDGMENT08/10/1975
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
GUPTA, A.C.
CITATION:
1976 AIR 2202 1976 SCR (2) 244
1976 SCC (1) 373
CITATOR INFO :
F 1977 SC 842 (5)
ACT:
Motor Vehicles Act 1939, Sec. 47(1) Sec. 68A(a)-Rules
framed by Tamil Nadu government under Motor Vehicles Act-
Whether rules can be discarded in the name of Public
interest in Sec. 47(1)-Whether rules to be supplemented by
public interest-Order of the Tribunal excluding a relevant
factor whether liable to be quashed.
HEADNOTE:
Many applicants for one permit for a short route
pressed their claims before the Regional Transport Authority
under the Motor Vehicles Act, 1939. The Transport Authority
evaluated the relevant merits and awarded the permit to the
appellant. The system of marks under the Rules framed under
the Act by the Tamil Nadu Government, prescribes various
qualifications for applicants for permits for passenger
transport under the Act. The rule emphasises that the
paramount consideration of the interest of the public as
enshrined in section 47(1) must be given full weight while
awarding permits. One of the rules provides that preference
shall, other things being equal, be given in respect of the
routes to persons who have not held any permit for stage
carriage. One of the considerations which must weigh with
the authorities is the business of technical experience in
the field of motor operation. The appellant secured 4 marks
as against 3.1 marks secured by respondent No. 1. In
addition, the appellant was entitled to a preference for
being a new entrant since the route was a short one. The
Appellate Tribunal reversed the order of the Transport
Authorities and granted the permit to respondent No. 2 and
set aside the permit granted in favour of the appellant on
the ground of public interest in the matter of passenger
transport service and held that the appellant’s experience
as lorry operator cannot be equated with respondent No. 2’s
experience in Bus operation. This view was taken by the
Tribunal following section 47(1).
The appellant filed a Writ Petition in the High Court
which was rejected.
On appeal by Special Leave,
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HELD: (1) The rules or guidelines could not be
discarded in the name of section 47(1). The Rules made are
really in implementation of section 47(1) but is not
exhaustive of all the considerations that would prevail in a
given situation. The jurisdiction is given to the Tribunal
to take note of other considerations in public interest
flowing out of section 47(1). The Rules, are, however, not
to be discarded but they can be supplemented or outweighed.
In the name of public interest something opposed to the
Rules cannot be done. The Appellate Tribunal has actually
contravened rule 155(3) which accords 2 marks for applicants
who have a certain experience in road transport service.
Road Transport Service is defined by section 68A(a) and it
makes no distinction between the type of transport vehicles
in which experience has been gained whether it be of
passenger transport or a lorry transport. The distinction
made between passenger transport and lorry service
experience by the Tribunal is illegal. A relevant factor has
thus been wrongly excluded. The order of the Appellate
Tribunal is liable to be quashed on the well-worn ground
that material consideration if ignored makes the order
vulnerable. More over, there is an apparent mis-construction
of the relevant rule. The respondent No. 1 stated that there
were many other grounds which he could have urged before the
Tribunal but which have not been adverted to by the Tribunal
because he could have urged before the Tribunal but which
have not been adverted to by the Tribunal because respondent
No. 2 succeeded on one ground. It is, therefore, fair that
the case should be remanded to the Appellate Tribunal for
being heard de novo. [216-E-H, 217A-E]
215
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1266 of
1975.
Appeal by special leave from the Judgment and order
dated 3rd March, 1971 of the Madras High Court in Writ
Petition No. 583 of 1971.
K. S. Ramamurthi, A. T. M. Sampath and E. C. Agarwala,
for the Appellant.
B. Sen and Vineet Kumar for Respondent No. 2.
The Judgment of the Court was delivered by
KRISHNA IYER, J. A single fundamental flaw in the order
of the Appellate Tribunal (under the Motor Vehicles Act,
1939), constrains us to allow this Appeal challenging the
High Court’s refusal to interfere with the grant of the
permit in favour of Respondent No. 2.
Many applicants for one permit for a "short route"
pressed their claims before the Regional Transport Authority
which evaluated the relevant merits and awarded the permit
to Applicant No. 6, who is the Appellant before us. On
appeal, Applicant No. 3, who is respondent No. 2 before us,
succeeded. Whereupon a Writ Petition was filed without
success and the disappointed appellant has come to this
Court by special leave.
The system of marks, under the Rules framed under the
Act by the Tamil Nadu Government, prescribes the various
qualifications for applicants for permits for passenger
transport under the Motor Vehicles Act, Rule 155-A
crystallises these considerations and describes them as
guiding principles for the grant of stage carriage permits.
The rule itself emphasizes what is obvious, that the
paramount consideration of the interest of the public, as
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enshrined in Section 47 (1), must given full weight while
awarding permits. That means to say that the various factors
set out in rule 155-A are subject to Section 47(1). This is
clarified by sub-rule (4) of Rule 155-A, which runs thus:
"After marks have been awarded under sub-rule (3),
the applicants shall be ranked according to the total
marks obtained by them and the applications shall be
disposed of in accordance with the provisions of sub-
section (1) of Section 47".
There is no doubt that bus transport is calculated to
benefit the public and it is in the fitness of things that
the interest of the travelling public is highlighted while
evaluating the relevant worth of the various claimants.
There are two circumstances which require to be
stressed because they have been overlooked by the appellate
tribunal in its disposal of the comparative merits of the
rival claimants. Sub-rule (5)(i) of Rule 155-A states that
preference shall, other things being equal, be given in the
disposal of applications in respect of short routes.......to
persons who have not held any permit for a stage carriage.
Among the considerations which must weigh with the
authorities entrusted with the power to grant permits, is
business or technical experience in the
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field of motor vehicles operation. Rule 155-A in Item (D),
sub-rule (3) specifically states "two marks shall be awarded
to the applicants who have business or technical experience
in the road transport service as defined in clause (a) of
Section 68-A of any class of transport vehicles for a period
of ten years or more".
Having regard to the marking system as adumbrated in
rule 155-A, a broad sheet was apparently prepared and the
appellant before us (Applicant No. 6) secured 4 marks as
against the second respondent (Applicant No. 3) who got 3.10
marks. Ordinarily, therefore, the applicant who got higher
marks should have won the battle. Moreover, in a short
route, as in this case, the rule contemplates preference
being given to a new entrant, of course, other things being
equal. In this case, therefore, the appellant before us,
being admittedly a new entrant, was entitled to preference,
the route being a short one, other things being equal. The
short question that, therefore, fell before the Appellate
Authority was as to whether other things were equal. This
aspect attracted the attention of the Appellate Authority,
but its consideration unfortunately was unsatisfactory. The
Appellate Tribunal observed that though the Applicant No. 6
had secured higher marks than Applicant No. 3: "I am
inclined, having regard to the public interest in the matter
of passenger transport service, to agree with the
appellant’s contention that the respondent’s experience as
lorry operator cannot be equated with the appellant’s
experience in bus operation." This view, according to him,
is tenable under Section 47 (1) since this matter involves
grant of bus permit. "The fact that the appellants are bus
operators, must necessarily over-ride the fact of the
respondent being a lorry operator. Though the route in
question is a short route and there is a new entrant like
the respondent, the respondent cannot automatically be
preferred in the absence of other things being equal, in
accordance with clause 5(1) of Rule 155-A".
The error that has crept into the order of the
Appellate Tribunal consists in thinking that the rules or
guidelines could be discarded in the name of Section 47(1).
Actually, Rule 155-A is in implementation of Section 47(1),
but is not exhaustive of all the considerations that will
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prevail in a given situation. Therefore, it is that there is
jurisdiction given to the Tribunal to take note of other
considerations in public interest flowing out of Section
47(1). Not that the sub-rules of Rule 155-A can be
discarded, but that they may be supplemented or outweighed.
Not that, in the name of public interest, something opposed
to the sub-rules of Rule 155-A can be done but that, within
the combined framework of Section 47(1) and rule 155-A,
there is scope for play of the jurisdiction of the Tribunal
to promote public interest. Viewed in this perspective the
Appellate Tribunal has actually contravened Rule 155(3)(D).
That provision expressly accords two marks for applicants
who have a certain experience in road transport service.
’Road transport service’ is defined in clause (a) of Section
68-A and this definition is specifically incorporated in
Rule 155-A (3) (D). It follows that the rule makes no
distinction between the type of transport vehicle in which
experience has been gained whether it be a passenger
transport or a lorry transport. The view taken by the
appellate tribunal
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that because the permit is for passenger transport, lorry
service experience, even if it falls under Rule 155-A (3)
(D), can be ignored, is therefore, illegal. A relevant
factor has thus been wrongly excluded.
Connected with the same flaw is what we have earlier
indicated namely, that the Appellate Tribunal has held that
the new entrant (Applicant No. 6) need not be given the
preference he is eligible for under Rule 155-A (5) because
other things are not equal. According to him, other things
not equal because Applicant No. 6 has lorry transport
experience while Applicant No. 3 has bus transport
experience. We have already explained that this is a
fallacy. In this view, the preference that flows in favour
of applicant No. 6 under Rule 155-A (5) should not have been
denied to him for the reasons set out by the Tribunal.
For these reasons, the order of the Appellate Tribunal
is liable to be quashed. The well-worn ground that mat
material consideration, if ignored, makes the order
vulnerable, applied. Moreover, these is an apparent mis-
construction of the relevant rule by the Appellate Tribunal,
as we have explained above.
This does not mean that this Court will award the
permit to one party or the other. That is the function of
the statutory body created under the Motor Vehicles Act.
Moreover, as Mr. Sen, appearing for the second respondent,
has rightly pointed out, his client had many other grounds
to urge before the Appellate Tribunal to establish his
superiority, which have not been adverted to by the
Appellate Tribunal because on one ground he succeeded. It is
only fair, therefore, that the case is remanded to the
Appellate Tribunal for being heard de novo wherein both
sides (no other applicant will be heard), will be entitled
to urge their respective claims, for the single permit that
is available to be awarded.
The only point that remains to be decided is as to what
is to happen for bus operation during the period the Appeal
is to be heard and the further proceedings which may follow.
We direct that the second respondent be allowed to ply the
bus as he is doing it now until disposal of the appeal by
the Appellate Tribunal. It is represented by Mr. Ramamurthy,
appearing for the Appellant, that his client had been plying
the bus on the route on and earlier occasion till the High
Court dismissed the Writ Petition. If there had been any
period when both operators had been plying their buses on
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the route during the course of this litigation, especially
at the time the Writ Petition was pending in the High Court,
it will be open to the Appellate Tribunal to allow thee
Appellant before us (Applicant No. 6) also to ply his bus on
the same route. With these directions, we allow the Appeal
and direct the Appellate Tribunal to dispose of the motor
vehicles Appeal No. 542 of 1970. Parties will bear their own
costs throughout.
P.H.P. case remanded.
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