Full Judgment Text
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PETITIONER:
GANDHARA TRANSPORT CO. LTD.,
Vs.
RESPONDENT:
THE STATE OF PUNJAB AND OTHERS
DATE OF JUDGMENT:
31/10/1962
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
SINHA, BHUVNESHWAR P.(CJ)
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION:
1964 AIR 1245 1963 SCR Supl. (1) 800
CITATOR INFO :
R 1987 SC 731 (7)
ACT:
Stage Carriage-Temporary permit-Application for renewal-
Grant of regular permit-Validity-Motor Vehicles Act, 1939 (4
of 1939), 1947, 57, 58, 62.
HEADNOTE:
By an order of the Minister in charge of the Transport
Department, Punjab State, a temporary permit was granted to
M for plying vehicles on the route indicated in the permit.
When the period of the temporary permit expired M applied to
the Regional Transport Authority for renewal of the permit.
The Regional Transport Authority issued a notice inviting
objections "regarding the further renewal of the permits for
a period of three years on regular basis in favour of M."
The appellants and others filed objections but M was granted
a regular permit for a period of three years. On appeal,
the Provincial Transport Controller quashed the order on the
ground that M had merely applied for renewal of the
temporary permit, that the procedure adopted for granting a
permit to M did not conform to the provisions of; the law
and that, therefore, the order renewing a temporary permit
and making it a permit to ply a stage carriage for three
years was invalid. But the order of the Transport
Controller was set aside by the Secretary, Transport
Department. The appellants then moved the High Court of
Punjab by a petition under Art. 226 of the Constitution of
India for quashing the order of the Secretary, but the High
Court rejected the application on the view that for
adjudicating on the merits of the claims for and against the
grant of the permit the authorities under the Motor Vehicles
Act were the proper authorities.
Held, that the order of the Regional Transport Authority
granting a regular permit to M was unlawful as it was
vitiated by grave errors of procedure. The Transport
Authority (1) had entertained an application for a renewal
of a temporary permit which was not contemplated by any
provision of the Motor Vehicles Act, 1939, (2) had invited
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objections to the application as one for renewal for three
years on regular basis, thereby misleading parties desiring
to enter into competition, and
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(3)had failed to apply its mind to matters which had to be
considered under s. 47 of the Act.
Held, further, that the order passed by the High Court
should be set aside and the order of the Transport Authority
declared unlawful, though the period of the regular permit
had expired in the meantime, because otherwise when making
fresh applications for permit, M would be getting the
benefit of the proviso to s. 58 (2), which was available
only to those having lawful permits.
JUDGMENT:
CIVIL, APPELLATE JURISDICTION: Civil Appeal No. 200 of
1962.
Appeal from the judgment and order dated March 15, 1960, of
the Punjab High Court, Chandigarh, in Civil Writ No. 315 of
1960.
Bishan Narain, Daya Swarup Nehra and Naunit Lal, for the
appellant.
K.L. Gosain, S. K. Mehta and K. L. Mehta, for respondent
No. 3.
1962. October 31. The judgment of the Court was delivered
by
SHAH, J.-By order dated October 23, 1956, the Regional
Transport Authority, Patiala, granted a permit to one
Manohar Singh for plying a stage carriage on the Bhatinda
Khera (Via Bajekhanna)jaitu-Kot-Kapura route which was about
55 miles long. This route covered 35 miles of the Bhatinda-
Kot-Kapura-Faridkot route for which the appellants, M/s.
Gandhara Transport Co. Ltd., held permits for plying their
vehicles. In appeal against the order passed by the
Regional Transport Authority, the appellate authority
cancelled the permit in favour of Manohar Singh, but the
order of the Appellate Authority was set aside by the
Minister in-charge of the Transport Department, Punjab
State, in revision, and it was directed that a fresh
temporary permit be granted to Manohar Singh for plying
vehicles on the route for which he had been given a permit.
The appellants then preferred a petition under Art. 226
802
of the Constitution before the High Court of Punjab,
Challenging the validity of the order passed by the
Minister. Before this writ petition could be heard the
period of the temporary permit expired and Manohar Singh
applied to the Regional Transport Authority for renewal of
the permit. The Regional Transport Authority issued on
April’16, 1958, a notice inviting objections "regarding, the
further renewal of’ the permits for a period of three years
on regular because" in favour of Manohar Singh on the
Bhatinda-Khera (via Bajekhanna)-- Jaitu-kot-Kapura. The
appellants and others filed objections to the " renewal of
the permits for three years on regular basis". The regional
Transport Authority posted the objections for hearing on
July 30, 1958. In the mean time the appellants applied to
the High Court of Punjab for an interim order directing the
Regional Transport Authority to stay pronouncement of the
order on the application submitted by ’Manohar Singh till
the disposal of their petition in the High Court. By order
dated July 29, 1958, the High Court rejected the application
observing that it was open to the appellants to move the
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Regional Transport Authority to postpone announcement of its
order on the application of Manohar Singh. The Regional
Transport Authority declined to postpone announcement of its
orders and on August 1, 1958, directed that a regular permit
for three years be granted to Manohar Singh for the route
notified. On August 7, 1958, the writ petition of ’the
appellants was heard by the High Court and it was dismissed
The High Court observed that by the petition before it the
issue of a Temporary permit in favour of Manohar Singh alone
was challenged and the period for which the. permit was
issued having expired, it was not possible for the Court to
grant any relief to the appellants, and the remedy of the
appellants against the order of the Regional Transport
Authority granting fresh permitlay before the Transport
Authorities under the Motor
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Vehicles Act. The high Court observed "it is possible that
the fact, that Manohar Singh was the holder of a temporary
permit may have influenced the Regional Transport Authority
in granting him a permanent permit," but it is open to the
petitioner-Companies to agitate that matter before the
Appellate and the Revisional Authorities in proceedings and
if no relief is given by the aforesaid authorities then this
Court can be approached under article 226 of the
Constitution, if proper grounds exist for invoking its
extraordinary powers under the aforesaid Article. x x x x
The mere fact that respondent No. 4 (Manohar Singh) held a
temporary permit is not the only ground on which the
permanent permit has to be granted to him. While granting
the permanent permit the authorities have to follow the
provisions of the statute and take into consideration the
various matters that are provided for by the Motor Vehicles
Act".
The appellants then appealed against the order of the
Regional Transport Authority. The Provincial Transport
Controller,- Punjab, by his order dated May 29, 1959,
quashed the order of the Regional Transport Authority.,
because in his view Manohar Singh had merely applied for
renewal of his temporary permit, and that before the
Regional Transport Authority there was no application for a
regular permit and that the procedure adopted for granting a
permit to Manohar Singh, did not conform to the provisions
of the law and therefore the order renewing a temporary
permit and making it a permit to ply a stage carriage for
three years was invalid. The Provincial Transport
Controller directed "that the question of allotment of
permits may, if necessary, be taken up afresh after the
requisite formalities are observed." But the order of the
Transport Controller was set aside by the Secretary,
Transport Department, State of Punjab, in exercise of
revisional authority
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under s. 64(h) of the Motor Vehicles Act as amended by
Punjab Act 28 of 1948.
The appellants then moved the High Court of Punjab by a
petition under Art. 226 of the Constitution for quashing the
order of the Secretary, Transport Department, on the pleas,
inter alia, that the order passed by the Secretary was
illegal because it ignored the ’effect of the temporary
permit which was the basis on which the permanent permit was
granted’ to Manohar Singh, that the security had failed to
note that the Regional Transport Authority had not invited
applications from the public for granting permit% for the
route and had merely notified the application for renewal of
the permit of the third respondent and that the Act
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contained no provision for renewal of a temporary permit
into a regular permit. The High Court rejected this
application. In the view. of the High Court "every
possibleargument" was advanced before the Regional.
Transport Authority and I was considered by that authority,
and that for adjudicating on the merits of the claims for
and against the grant of the permit the authorities under
the Motor Vehicles Act were "the proper authorities.’
Section 62 of the Motor Vehicles Act, 1939, empowers the
Regional Transport Authority to grant without following the
procedure laid down in s. 57 of the Act and subject to such
conditions as it thinks fit to impose, permits to be
effective for a limited Period (not in any case exceeding
four months) authorising the use of a transport vehicle-(a)
for the conveyance of passengers on special occasions such
as to and from fairs and religious gatherings, or (b) for
the purpose of a seasonal business, or (c) to meet a
particular need, or (d) pending decision of an application
for the renewal of a permit. By the amendment made by Act
100 of 1956 two restrictions were placed on this power (i)
that the temporary
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permit shall in no case be granted in respect of any route
or area specified in an application for the grant of a new
permit under s. 46 or s. 54 during the pendency of the
application and (ii) that the temporary permit shall, in no
case, be granted more than once in respect of any route or
area specified in an application for the renewal of a permit
during the pendency of such application for renewal.
Permits under s. 62 arc undoubtedly intended to meet tempo-
rary needs of the nature specified in the section, and the
formalities which arc ’prescribed by s. 57 of the Act are
not required to be followed before such permits are granted.
It appears that it was the practice followed in the State of
Punjab to issue all permits for plying stage carriages as
temporary permits, and not to issue regular permits at all
under s. 57 of the Act. This is pointed out in its order
by the Regional Transport Authority in this case, and on
that point there is no dispute.
The permit granted to Manohar Singh pursuant to the order
of the Minister, Transport Department, was a temporary
permit. After the expiry of the period of the temporary
permit in his favour, Manohar Singh applied not for a
regular permit under s. 57, but for renewal of a temporary
permit. The Act, however, does not contemplate renewal of
temporary permits : only regular permits may be renewed
under s. 58 of the Act. The Regional Transport Authority
invited objections to the application of Manohar Singh ’for
renewal of the permit for a period of three years on regular
basis’.. without indicating that Manohar Singh was the
holder of a temporary permit. As we have already observed
there were on the route specified in the application no
regular permits issued under s. 57 and all the permits
which were issued by the Authority were temporary permits
under s.62. The Regional Transport Authority had,
therefore for the first time to issue regular permits under
s.57 of the Act and
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that authority might well have, before censidering
applications submitted by holders of temporary permits,
invited applications from persons who were interested in
applying for permits for the route in question. In
considering an application for a permit for a stage carriage
normally the Regional Transport Authority has to consider
matters set out in clauses (a) to (f) of s. 47 such as the
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interest of the public generally, the advantages to the
public of the service to be provided, including the saving
of time likely to be effected thereby, adequacy of other
passenger transport services operating or likely to operate
in the near future, benefit to any particular locality or
localities likely to. be afforded by the service., operation
by the applicant of other transport services including those
in respect of which applications from him for permits are
pending and the condition of the roads included in the
proposed route or areas. The Regional Transport Authority
has also to consider whether the number of stage carriages
generally or of any specified type for which permits may be
granted should be limited in any specified area or on any
specified route within the region. When there is already a
transport service maintained on the route in question by
operators holding regular permits, the Regional Transport
Authority may, having regard to the previous investigations
made, proceed on results of enquiries or surveys made in
respect of some of the matters detailed in s. 47 but it
has still to consider, all those matters. Further by virtue
of the proviso to sub-s. (2) of s. 58 if other conditions
are equal an application for renewal has to be given
preference over new applications for permits’ Manifestly in
dealing with applications for issue of temporary permits,
regular permits and renewal of regular permits different
considerations come into play. A temporary permit may be
issued to meet purely temporary needs. In considering the
issue of regular permits an elaborate procedure has to be
followed, including a hearing demanding a judicial
consideration
807
of the claims of the individual applicants inter Se in the
context of the wider interest of the. general public ; in
considering an application for renewal of a permit, the
authority has to afford to an existing operator a preemptive
opportunity, if other conditions Were equal. As there were
no existing operators with regular permits, a detailed
enquiry under s. 57 with special. attention to the
requirements had to be made. But the Regional Transport
Authority committed an error at the threshold of his
proceeding : it entertained an ;application which is not
contemplated by any provision of the Act, invited objections
thereto in terms which were somewhat misleading, thereby
preventing other applicants from coming forward to apply,
and failed to apply its mind to matters which had to he
considered under s. 47 of the Motor Vehicles Act. Therefore
by entertaining an application for renewal of a temporary
permit and inviting objections against such renewal the
Regional Transport Authority entertained an application
which was not in law maintainable, and by inviting
objections to the application as one for renewal for three
years on regular basis in substance misled the parties
desiring to enter into competition into desisting from sub-
mitting their applications. Its proceedings were,
therefore, in our judgment, vitiated on account of grave
errors of procedure.
But Mr. Gosain appearing on behalf of the respondents
submits that even the period of the regular permit granted
to Manohar Singh by the Regional Transport Authority has
expired and the Regional Transport Authority has now to
consider fresh applications for permits and whatever
irregularities may have occurred in the issue of permit in
favour of Manohar Singh they cannot now be rectified, and
any declaration which this Court may make in regard to the
irregularities would be academic. But it is necessary in
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our judgment to declare the true position in law, so that in
the consideration of the fresh applications
808
the mistakes originally committed may not be repeated.
Again by making an order affirming the decision passed by
the High Court we would be giving to Manohar Singh a benefit
to which he is not lawfully entitled. If the permit which
was granted by the Regional Transport Authority on August 1,
1958, was not lawfully granted, Manohar Singh would not be
entitled to the benefit of the proviso to sub-s. (2) of s.
58 and his application for permit would have-to be one under
s. 57 and would have to be considered in competition with
other claimants for permits on the route. We do not think,
therefore, that the consideration of the objections to the
validity of the procedure followed by the Regional Transport
Authority has become academic as submitted by Mr. Gosain.
We accordingly set aside the order passed by the High Court
and declare that the order of the Regional Transport
Authority granting a permit in favour of Manohar Singh was,
for reasons already set out, unlawful. The appellant will
be entitled to the costs of this appeal.
Appeal allowed.
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