B.M.S. (Pte.) Ltd. vs State Transport Appellate Tribunal and Others

Anantanarayanan, J.—This is a writ appeal instituted by Messrs. B. M. S. (P) Ltd., who were the petitioners before Ramachandra Iyer, J.

(as he then was) in W. P. No. 467 of 1958, dealt with by the learned Judge along with other petitions. A few facts are essential for the disposal of

the single main ground upon which the appeal has been argued and pressed before us and, with regard to which, we have been constrained to

differ from the conclusion of the learned Judge, with great respect.

For certain routes within the town of Coimbatore, two stage carriage permits were notified, and several transport firms were applicants, among

which, we are now only concerned with the appellant (B. M. S. (P) Ltd.,) the third respondent before the learned Judge (Mettupalayam Coonoor

Service (P) Ltd.,) and the 4th respondent (S.S.V. Motor Service). We might immediately state that one ground of appeal related to the reduction

of marks by the State Transport Appellate Tribunal with regard to the appellant (B. M. S. Ltd.) under column 4, namely, ""Experience"" and column

5 ""Special circumstances"", in relation to the marks awarded by the Regional Transport Authority. Those marks were respectively reduced from 1

to 1/2 under column 4, and 1 to 1/4 under column 5. This aspect need not at all detain us, for the State Transport Appellate Tribunal furnished

perfectly valid grounds for this re-assessment, and the reduction of marks under these categories. An argument was somewhat faintly pressed

before us by the learned Advocate-General for the appellant, that the Tribunal was not at liberty to re-assess the marks under these categories,

when the other claimants who were appealing did not raise any substantial objection to the valuation by the Regional Transport Authority, who

gave one mark to the appellant under each of these columns. The argument cannot be accepted, for the simple reason that the State Transport

Appellate Tribunal undoubtedly possessed a jurisdiction to revalue the claims of the respective applicants, when dealing with the appeals, in the

light of established facts and the record where a fact itself was not challenged, it may be that the Tribunal would be in error in coining to a finding

contrary to that of the Regional Transport Authority without any allegation by the other parties, unless there is some indisputable record to establish

that fact. But, as regards valuation, the Tribunal has a wide jurisdiction and we cannot accept the argument that the jurisdiction is limited by the

specific grounds of appeal of other claimants.

We now come to the crucial ground upon which the appeal has to be really considered. The facts here are essentially simple, and established

beyond all doubt or controversy by the record. Unfortunately, the precise facts of the record were apparently not placed before the learned judge

(Ramachandra Iyer, J.) with that explicitness which the record really enables the parties to do; for that reason the learned Judge has referred to the

relevant facts with some degree of vagueness concerning them. But, the scrutiny of the record that we have been enabled to make with the

assistance of learned counsel, actually places the facts beyond any controversy or doubt.

The matter really relates to the valuation to be made for the possession of a full-fledged workshop under the second column, as far as the third

respondent (Mettupalayam Coonor Service Ltd.) was concerned. The third respondent is a fleet-operator, and the Government order which

adumbrates the marking system, gives particulars of the assessment to be made under this head; as far as fleet-operators are concerned, there has

to be a complete assortment of certain specified tools, before any credit can be claimed for the possession of a full-fledged workshop. Upon the

material available to the Regional Transport authority, it came to the conclusion that on the relevant date of its hearing (22-J-T958), the third

respondent did not have this full-fledged workshop. The report was to the effect that one specified tool, considered an essential item, was not in

the possession of the third respondent. Accordingly, the Regional) Transport authority awarded no marks to the third respondent under this

category. The total of the marks awarded by the Regional Transport Authority was three, as far as the third respondent was concerned. In re-

assessing the respective claims of the parties, the State Transport Appellate Tribunal reduced the marks of the appellant-concern to 3 3/4 from 3

marks awarded by the Regional Transport Authority. That, as we have seen, cannot be assailed, and we have already commented upon this

aspect. But the Tribunal further awarded two marks under column 2 to the third respondent, with the result that the third respondent obtained a

total of five marks, and one of the two permits notified for the route. Against this finding, the appellant preferred a writ petition, W. P. No. 467 of

1958, claiming that the order of the Tribunal, was vitiated by an error of lave apparent on the face of the record. The learned Judge (Ramachandra

Iyer J.,) held against this contention, dismissed the writ petition and discharged the rule nisi.

In his discussion of the facts on this aspect, the learned Judge seems to have felt that there was some degree of vagueness about the reports 011

this matter, and the respective affidavits and counter-affidavits of the parties themselves. But, actually, there is no room for that inference, if regard

is paid to the relevant dates and the. several reports are carefully scrutinized. It appears to be a fact that the Tribunal dealt, at the same time, with a

number of appeals; this appeal related to the assessment of claims by the Regional Transport Authority on 22-1-1958, with regard to these two

stage-carriage permits. There were other permits for other routes, that do not concern us, similarly dealt with by the Regional Transport Authority

on an earlier date 19-11-1957. The record does show that, with reference to that date (19-11-1957). for some other route, material was adduced

before the Regional Transport Authority to show that the third respondent had the full complement of tools on or just prior to 19-11-1957. But it is

equally clear that one essential item was not in the possession of the third respondent on the vital date, 22-1-1958, when the permits for the

present route were considered. The only inference possible is that the third respondent had lost possession of that tool, and was, therefore, not

entitled to claim that the firm had the full-fledged workshop as far as the present permits were concerned. For this reason, the Regional Transport

Authority refused to allow or allot any mark to the third respondent.

The learned Judge refers to some report of the Motor Vehicles Inspector, concerning which the third respondent made a representation that the

party was in possession of the nine tools specified, but that at the time of inspection, one tool (specified tool) was temporarily elsewhere, and not

available. Sri Chengalvarayan for the third respondent has been compelled to concede that there is nothing in the record in these proceedings to

support any such averment, and that there is no evidence for any such allegation. On the contrary the third respondent seems really to have relied

on the fact that, subsequently, the respondent again acquired this tool prior to the hearing by the Tribunal. The hearing was on V-5-T958, and the

judgment of the Tribunal was on 15-6-1958. There is a certificate to the effect that on 7-5-1958 as inspection was made, and that the third

respondent was found in possession of the essential tool also, among others. In other words, the third respondent was in possession of a full

fledged workshop only on 7-5-1:958, and perhaps in November 1957. But the third respondent lacked this facility on 22-1-1958 and this

conclusion admits of no doubt whatever.

It is in this setting of the facts that we have to interpret the order of the State Transport Appellate Tribunal reversing the order of the Regional

Transport Authority granting no marks to the appellant under column 2, and awarding two marks instead. Very unfortunately, the State Transport

Appellate Tribunal has nowhere been clear with regard to the vital issue whether it had considered the existence of this facility as on the'' date of

the meeting before the Regional Transport Authority, viz. 22-1-1958, or as on the date of the Tribunal''s hearing itself. Further, the word

''admittedly'' has been used by the Tribunal in the judgment, with regard to the possession of this facility by the third respondent. But here again,

learned counsel has been compelled to concede that the affidavits and counter affidavits show, beyond doubt, that no such admission was made by

the parties before the State Transport Appellate Tribunal.

The only conclusion possible, with regard to the interpretation of the order of the Tribunal, is that the Tribunal found that the appellant had this

facility on the date of the hearing before it, namely, 17-5-1958, and not on the date of hearing before the Regional Transport Authority (22-1-

1958). We have scrutinised the record with great care, and considered this matter in all its aspects. No other conclusion is rationally possible on

the facts, and hence we have necessarily to negative the attempted argument of learned counsel for the third respondent (Sri Chengalvarayan) that

possibly the Tribunal really meant that the third respondent had this facility on 22-1-T958 itself, or thought that the material before it warranted

some such inference. That is not the case, and in the light of the material, that interpretation of the judgment of the Tribunal is wholly unsustainable.

We find, as a question of fact, that the conclusion of the Tribunal was that the third respondent had this facility on the date of the hearing of the

appeals by the Tribunal, and perhaps in November, 1957, with regard to some other hearing by the Regional Transport Authority for some other

route, which does not concern us.

These being the facts, the entire question reduces itself to the simple one whether the Tribunal committed an error of law apparent on the face of

the record, in holding that the lack or possession of facilities, by respective claimants on the date of the hearing by the Tribunal, could be a relevant

factor for assessment, and would entitle the Tribunal to set aside the valuation by the Regional Transport Authority. The matter is not bare of

authority and, on the contrary, a Bench of this Court has already held in unambiguous terms that the possession of the facility by the respective

applicants on or shortly prior to the date of hearing of the Regional Transport Authority would alone be relevant, and that it would be quite illegal

to take notice of facilities subsequently acquired, and to give credit therefore. Since this is the main ground of appeal, we set forth the following

relevant passage from the judgment of Rajamannar, C. J., in W. A. 5 of 1951 (Mad).

The learned judge agreed with the Tribunal that the relevant date would be 14th March, 1956, the date on which the Regional Transport

Authority considered the applications and the circumstances then prevailing should furnish the material for a comparison of the relative merits of the

applicants. We entirely agree with the learned Judge on this point. The appellant apparently did not have certain qualifications, which he seems to

have subsequently acquired. It appears to us to be neither legal, nor just, that he should be permitted'' to rely on subsequently acquired

qualifications.

If that kind of cognizance of facilities subsequently acquired were to be permitted, it can indeed be shown that the administration of the system itself

is likely to be paralysed. Courts have held that the Government order adumbrating the marking system is really administrative in its content and

character, and not mandatory in the judicial sense; it may furnish guidance to the statutory authorities under the Motor Vehicles Act, but cannot

constrain them, and they would be free to abandon it and to make an independent assessment of the claims of the respective parties. But while that

is so, it is needless to emphasis that so long as the system is adopted as a rational basis for assessment of claims excluding any arbitrary

assessment, it should be consistently adopted. The logic of the system has necessarily to be adhered to, and regard must necessarily be paid to the

fact that it is the Regional Transport Authority which has to make the initial choice or decision, and to award the permits. It would make the entire

decision a farce, and render the system itself incapable of any rational application, if applicants for permits could challenge the decision on

qualifications acquired subsequently to the decision itself, or alleged to have been so acquired. To interfere with the valuation and the decision of

the Regional Transport Authority on such a ground, is undoubtedly to proceed on an error of law apparent on the face of the record. Learned

counsel for the third respondent has drawn our attention to the decision of a Bench of the Assam High Court to Dhananjoy v. Chairman, Appellate

Board, AIR 1961 Gua 56, as an authority for the proposition that the Appellate Board (Appellate Tribunal) has a very wide jurisdiction, and can

re-assess the marks of respective claimants or cancel a permit granted to one of the parties. These general propositions have nothing to do with the

present situation, or the particular ground on which we have been constrained to interfere in the present case. Again in Nagendra Nath Bora and

Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, , their Lordships have laid down the principles on which

interference in certiorari would be justified. In the present case, it is the strict adherence to these dicta which justifies interference, for the situation is

not that of a mere error of fact, or of any error of law which is merely technical or formal. The error of law proceeds to the root of the matter, in

that it substitutes the assessment by the Tribunal by taking into account qualifications which should have existed at the time when the Regional

Transport Authority made the grant, but which did not then exist and which were later on acquired, presumably for the purpose of. success in the

appeal. We have earlier referred to the Bench decision of this Court, which has categorically laid it down that such procedure and such a

perspective of approach would be contrary to the law and contrary to justice.

For these reasons, we are constrained to differ from the learned judge (Ramachandra Iyer, J.,) and to direct the issue of a writ of certiorari

quashing the order of the. State Transport Appellate Tribunal. It follows that at least as regards the respective claims of the appellant and the third

respondent to the single stage-carriage permit now in controversy, the matter will be set at large for consideration afresh by the Tribunal. As

regards the fourth respondent, who has acquired a stage-carriage permit, he is a formal party and the award of the permit to him is not affected by

the rights of the present controversy. A writ will issue accordingly. Parties will bear their own costs throughout.