Madhya Pradesh High CourtJairam Gaya Prasad Mishra And Anr. vs The State Transport Appellate ... on 18 July, 1977Equivalent citations: AIR1977MP262, AIR 1977 MADHYA PRADESH 262, 1977 MPLJ 716 1978 JABLJ 25, 1978 JABLJ 25JUDGMENT


 

  Bajpai, J.1.  By this     petition,    the
petitioner, a transport operator, seeks to challenge the validity of the order passed by the State Transport Appellate Tribunal quashing the notification issued by the R.T.A. inviting applications for grant of transport permits.2. The facts relevant are that in June, 1970, two stage carriage permits were granted to certain operators by the R.T.A. for the route Tikamgarh to Bijawar. These grants of permits were challenged before the State Transport Appellate Tribunal and the State Transport Appellate Tribunal set aside the same by its order dated 25-2-75 on the ground that the invitation issued by the R.T.A. for grant of permits and the consequent grant of the permits were all illegal, because there was no previous determination of the scope as contemplated underSection 47 (3)of the Motor Vehicles Act, 1939 (hereinafter referred

to as the Act). The case was, therefore, remanded to the R.T.A. for determining the scope and then to proceed further in the matter of grant of permit according to the provisions of theMotor Vehicles Act.3. Thereafter the Regional Transport Authority vide its order dated 21-4-75 (Annexure A) determined the scope on the aforesaid route for two daily return trips and the number of stage carriage buses fixed was two. After determining the scope, a notification (Annexure B) was issued inviting applications for grant of permits accordingly. In the notification, instead of describing the extent of the scope as "two daily return trips by two buses", the R.T.A. used the words '4 trips' and did not specify the number of stage carriages as determined by its order determining the scope.4. The M. P. State Road Transport Corporation filed an application underSection 64-Aof the Motor Vehicles Act challenging the validity of the notification on the ground that by scheme No. 9-M, a part of the route in question was nationalised and the R.T.A. issued the notification inviting applications by overlooking this aspect. The other ground taken for challenging the validity of the notification was that the same was not in accordance with the order determining the scope inasmuch as the number of buses were not stated in the notification and it also did not correctly specify the scope as determined for two daily return trips.5. The State Transport Appellate Tribunal did not deal with the question of the effect of the scheme of nationalisation on a part of the route and left it open. The State Transport Appellate Tribunal, however, quashed the notification only on the ground that the description of the scope as given was not correct and the same did not satisfy the requirements ofSection 47 (3)of the Act inasmuch as the number of stage carriages was not stated. According to the State Transport Appellate Tribunal, it was essential on the part of the Regional Transport Authority to disclose the number of stage carriages as limited by its order determining the scope. This order was passed by the State Transport Appellate Tribunal on 1st of April, 1976. It would be also significant to mention that since the M. P. State Road Transport Corporation challenged the validity of the notification, the Regional Transport Authority

alone was impleaded as party to the revision. It appears that the R.T.A. remained ex parte and the State Transport Appellate Tribunal decided the revision after hearing the applicant i. e. M. P. State Road Transport Corporation.6. It would be further significant to mention that despite the fact that the notification was quashed by the State Transport Appellate Tribunal on 1-4-7.6, the R.T.A. proceeded to deal with the applications received in pursuance of the said notification and later on granted permits. The present petitioner is also one of the grantees.7. The petitioner before us challenges the validity of the order made by the State Transport Appellate Tribunal. Shri Y. S. Dharmadhikari, learned counsel, appearing for the petitioner pressed the following grounds in support of his case:(i) That the order made by the Regional Transport Authority determining the scope on a particular route as contemplated underSection 47 (3)of the Act was not revisable by the State Transport Appellate Tribunal underSection 64-Aof the Act.(ii) That even if it was held that a revision was maintainable, the order made by the State Transport Appellate Tribunal was liable to be quashed, because the M. P. State Road Transport Corporation did not implead all such persons who had applied for grant of permit in pursuance of such notification.(iii) That the omission to mention the number of stage carriages while disclosing the scope in the notification was not material inasmuch as no prejudice was caused and that there is no statutory requirement to mention the number of stage carriages while describing the scope in the notification inviting applications for grant of permit and therefore, even on merits, the State Transport Appellate Tribunal was wrong in quashing the notification only on the said technical ground particularly when undisput-edly the order fixing the number of stage carriages for two daily return trips by two buses was on record and the applications were made accordingly and were also considered for two daily return trips by two stage carriages.(iv) That the scheme of nationalisation referred to by the M. P. State Road Transport Corporation was not relevant inasmuch as the operation on the part of the route in question was kept for conjoint operation and was not reserved for exclusive  operation  by the State     Undertaking.8. As regards the first objection regarding the tenability of the revision at the instance of M. P. State Road Transport Corporation challenging the validity of the order underSection 47 (3)of the Act is concerned, it would suffice to observe that the objection is absolutely misconceived in view of the clear language of Section 64-A as reproduced below:"64-A. Revision.--The State Transport Appellate Tribunal may, either on its own motion or on an application made to it, call for the record of any case in "which an order has been made by a State Transport Authority or Regional Transport Authority and in which no appeal lies, and if it appears to the State Transport Appellate Tribunal that the order made by the State Transport Authority or Regional Transport Authority is improper or illegal, the State Transport Appellate Tribunal may pass such order in relation to the case as it deems fit, and every such order shall be final:Provided that the State Transport Appellate Tribunal shall not entertain any application from a person aggrieved by an order of a State Transport Authority or Regional Transport Authority, unless the application is made within thirty days from the date of the order:Provided further that the State Transport Appellate Tribunal shall not pass an order  under  this section prejudicial    to any person without giving him a reasonable opportunity of being heard."From the perusal of the section, it is apparent that the scope of the said section is very wide in terms.  The only condition precedent   for filing     a revision    is that  the order impugned made by    the R.T.A.  should  be such against which no appeal lies. The word    'order'    is    wide enough and there is no scope to contend that the same may not include an order made underSection  47  (3)of the Act.  It    is undisputed that the   M.  P.    State    Road Transport Corporation  was  an     existing operator and it could be naturally    aggrieved by the said order if it was found to be in contravention of the provisions of law under the facts and circumstances of the case. It is true that there may be some operators who may    find    even    a wrong order underSection  47  (3)of the    Act to their advantage and may not challenge the same by filing a revision under Section 64-A. But, if the order,  as disclosed by  the  notification specifying the scope. happens to be prejudicial to the interest

of some operator, as in the present case, such operator can approach the State Transport Appellate Tribunal for relief by invoking the jurisdiction underSection 64-Aof the Act. There will be no ground for denying his right to approach the revisional authority. It is true that while proceeding to determine the scope, it is not necessary for the R.T.A. to issue a notice to the operator or to hear them. But once an order is made underSection 47 (3)of the Act, it affects the working and operation on the route and would thereby, in the circumstances of each case, affect the interest of an existing operator. The mere fact, that the existing operators are not entitled for hearing by the Regional Transport Authority at the time of determining the scope and making an order under Section 47 (3), will not take away the right of revision conferred by Section 64-A.9. This legal position is well settled and finds support from the observations made by the Supreme Court in Civil Appeal No. 636 of 1967 decided on 26-9-1967 : (reported in AIR 1968 SC 410) (Laxmi Narain Agarwal v. State Transport Authority, U. P.).10. The second contention regarding the omission to implead the petitioner who had applied for the grant of permit in pursuance of the notification as party to the revision wag, however, not pressed in view of the fact that the petitioner had already been heard on the point involved and the same is being adjudicated by this Court on merits. It is, therefore, not necessary to deal with the question whether in a revision challenging a notification issued in pursuance of the order underSection 47 (3)of the Act, other persons who had subsequently applied for grant of permit in response to the notification are necessary parties.11. As regards the third contention, which relates to the merits of the case, it would suffice to observe that undisputedly there is no statutory form or manner prescribed for inviting applications after determining the scope underSection 47 (3)of the Act. The provisions ofSection 57require the R.T.A. to invite applications after determining the scope. Naturally while doing so it is always desirable to disclose the scope determined, because unless the scope has been determined, there will be no jurisdiction to invite, entertain and consider the applications for grant of permits. Under these circumstances, it is more a matter

of substance than of form. If an objection is raised challenging the validity of the decision determining the scope, on a ground relating to the manner of its publication, it will be always necessary to find out whether any prejudice has been caused. It is true that the R.T.A. vide its order dated 21-4-75 limited the stage carriage by fixing the same by two buses for two daily return trips. So far as this order (Annexure A) made by the Regional Transport Authority is concerned, no objection was raised regarding the non-compliance of the provisions ofSection 47 (3)inasmuch as it has limited the number of both i. e. the stage carriage and the trips. The ground urged by the M. P. State Road Transport Corporation for challenging the validity was that the notification, which was issued in pursuance of this order did not mention the number of stage carriages as limited by the Regional Transport Authority and instead of 'two daily return trips', the notification simply stated '4 trips'.12. In our opinion, if the scope has been determined by the R.T.A. in full compliance of the requirement ofSection 47 (3)of the Act, the mere wrong description in the notification issued by the R.T.A., as required bySection 57 (2)of the Act for inviting applications will not vitiate the order determining the scope. It is true that if no such scope has been determined at all or there is no material to infer that the scope has been determined in full compliance of the requirement ofSection 47 (3)of the Act and the notification also does not disclose that the scope has been determined in full compliance of the provisions ofSection 47 (3), thenin that case, it will not be possible to uphold the notification inviting applications as valid because the essential pre-requisite i. e. the determination of the scope as required bySection 47 (3)of the Act will remain unsatisfied. In the present case, it is not so. The order of the R.T.A. (Annexure A) makes it clear that the scope has been determined in the manner required by the provisions ofSection 47 (3). The number of stage carriages has also been limited and fixed. The details of the trips have also been specified. The operators who wanted to apply for grant of permit have accordingly filed the applications. The applications were also considered for grant of two stage carriage permits comprising of two daily return trips. The State Undertaking was neither an applicant nor an objector. There is no mate-rial on record to show that any prejudice was caused by this omission.13. The learned counsel appearing on behalf of the respondent M. P. State State Road Transport Corporation cited an unreported decision of this Court in M. P. No. 1 of 1976 decided on 11-2-1976 (Abdul Raza v. Regional Transport Authority, Ujjain) in support of his contention that the omission to mention the number of buses in the notification was in itself sufficient to quash the notification. We have gone through the aforesaid decision and find that the Division Benchin that casefound the notification inviting applications for grant of permits invalid, because there was no material either in the contents of the notification or otherwise from which it could be inferred that the actual number of stage carriages was limited and fixed while determining the scope. It is true that the notification involved in the said case did not mention the number of stage carriages and the number of additional trips alone was mentioned.By placing reliance on the observations of their Lordships of the Supreme Court inR. Obliswami Naidu v. Additional State Transport Appellate Tribunal, Madras, AIR 1969 SC 1130, the Division Bench was of the opinion that the determination of the number of stage carriages for which the permits may be granted on a particular route, was essential before entertaining the applications for the same. There is no dispute to this well settled legal position. From the observations made at the end of para 7 of the aforesaid decision, it is also clear that there was no material on record except the notification as it stood from which it could not be inferred that the number of stage carriages was fixed by the R.T.A. The Division Bench therefore, concluded that as the R.T.A. failed to determine the number of stage carriages for the route specified in the notification, there was no compliance of the provisions of Sub-section (3) ofSection 47of the Act, and therefore, the notification was invalid. But in the present case, there is specific material on record to show that the number of stage carriages has been fixed for the route specified in the notification. It is also not disputed that the R.T.A. had limited the number of stage carriages to 2 buses vide its order dated 21-4-75 (Annexure A). Thus, under these circumstances, we are of the opinion that there is substantial compliance of the provisions of Sub-section (3) ofSection 47of

the Act and the notification in the present case cannot be held to be invalid on the ground of non-compliance of Sub-section (3) ofSection 47. We are fortified by the observations made by their Lordships of the Supreme Court in Gajendra Transport (P.)Ltd. v. The Anamalias Bus Transport (P.) Ltd., AIR 1975 SC 386. It has been observed that if in the record of the R.T.A., there is sufficient material to establish that before the notification was issued, a decision had already been taken by the R.T.A. that certain number of buses should be introduced on the route, the same will amount to substantial compliance and the absence of a formal order will not affect the validity of the proceedings taken by the R.T.A. The unreported decision of the Division Bench of this Court related to a case where there was in fact no compliance of the provisions ofSection 47 (3)and therefore, the notification without any mention of the number of stage carriage in the absence of any other material to establish the said fact was found to be bad, invalid and was set aside. This contention is, therefore, also rejected.14. Now the last contention which remains to be decided related to the objection that a part of the route being covered by the nationalisation scheme (alleged to be scheme No. 9-M), the R.T.A. acted illegally and without jurisdiction in inviting the applications by a notification for grant of permit to private individuals by overlooking the effect of the said nationalisation scheme. Truly speaking, this alone was the objection, if established, could make out a case of grievance and prejudice to the State Transport Undertaking. Unfortunately, this objection was not at all dealt by the State Transport Appellate Tribunal while deciding the revision. The State Transport Appellate Tribunal disposed of the revision on the other ground alone and this objection was left open for being considered by the R.T.A. There is no material before us to enable us to deal and decide this objection.15. Under these circumstances, when the other ground relied by the Tribunal has been found by us to be untenable, there is no other go but to remand the revision to the State Transport Appellate Tribunal for fresh disposal after deciding the second objection relating to the effect of the nationalisation scheme if any covering the route or the part thereof. The first objection raised before the

State Transport Appellate Tribunal based on the omission to mention the number of stage carriages in the notification however, stands adjudicated against the M. P. State Road Transport Corporation by this order.16. This petition is, therefore, partly allowed. A writ be issued directing the State Transport Appellate Tribunal to decide the objection about the effect of the nationalisation scheme and dispose of the revision accordingly. In view of the partial success, there will be no order as to costs. Parties will bear their own costs of this petition. The amount of security, if any, be refunded to the petitioner.