D. Palani vs K. Balasubramaniam and Another

S. Mohan, J.—The revision arises out of the grant of a stage carriage permit on the route Srimushnam to Eyyalur. The length of the route is

49.2 k.m., which in motor parlance is called medium route. There were three applicants. Applicant No. 1 was absent, while applicant No. 2 the

revision petitioner and applicant No. 3 the respondent contested the issue. The Regional Transport Authority, Salem Region (South Arcot District)

held by an order dated 23.12.1981 that applicant No. 2 was entitled to 10 marks while applicant No. 3 was entitled to 8 marks alone. This was

because the principal place of business or residence of applicant No. 3 was not either on the termini or on the route as required under Rule 155-A

(3A) of the Motor Vehicles Rules. However he was of the view that neither of the applicants would be entitled to the permit. As regards applicant

No. 2, he held that he had transport experience from 9.7.1979 and hence a recent grantee. He had surrendered his spare bus permit. As regards

applicant No. 3, he held that admittedly his place of business is away from the route. The General Manager was appointed recently and such

appointment will not serve any useful purpose. Aggrieved by the same, applicant Nos. 2 and 3 took up the matter in appeal to the Tribunal. These

appeals were 273 and 294 of 1982 respectively. They came to be disposed of by the Tribunal by a common order dated 16th February, 1983.

The Tribunal held that the order of the Regional Transport Authority rejecting the applications of both the appellants is clearly erroneous. The

reason that applicant No. 2 is a recent grantee and likewise applicant No. 3 had appointed the General Manager recently was unsustainable. After

so holding it made a comparison between the two rival applicants. It was of the view that the marks got by the applicants cannot govern the grant

of permit. In this view, it held that applicant No. 3 had a spare bus, while applicant No. 2 had surrendered spare bus permit. The possession of

spare bus in an asset. Applicant No. 3 has longer experience. He has been a single bus operator from 19th February, 1979. It is but proper that he

must get the second permit earlier. Applicant No. 3, has a branch office at Kattumannargudi on the route and a sub office at one of the terminus.

He has been a lorry operator from 1978. These factors more than off set the facts that applicant No. 2, is himself a technically qualified engineer

and he possesses a heavy vehicle driving licence. On these lines of reasoning the permit was granted in favour of applicant No. 3. Aggrieved by

this order of the Tribunal, the revision has come to be preferred.

Mr. S. Govind Swaminathan, learned Counsel for the petitioner urges the following. It is not a mere academic exercise of awarding of marks. It

has a meaning and substance because Rule 155-A of the Motor Vehicles Rules, provides guide-1ines for the award of these marks. In so

awarding when the revision petitioner (applicant No. 2) had obtained ten marks, those marks must be given proper weightage. There is no demur

to the legal proposition that marks merely guide and do not govern. However, where admittedly the respondent had been able to score only eight

marks, normally the petitioner will be entitled to claim the permit by the superiority of his marks, unless, and until, it is held by the authority

concerned it will not be in public interest to grant the permit in favour of that person who had scored higher marks. There is no such discussion at

all. It appears the Tribunal having made up its mind to grant the permit in favour of applicant No. 3, has butressed that conclusion with several

reasons. This is the line of approach this Court has taken in C.R.P. No. 1559 of 1976. As a matter of fact, in Kabilan Transports Private Ltd.

Udumalpet and Another Vs. Aswini Transports (P.) Ltd., , in paragraph 24 while extracting the judgment of the Supreme Court, it has been noted

that normally superiority of marks will have to prevail. The possession of spare bus has been held not an asset, unless the route itself so warrants.

There is no such finding here at all. Therefore, merely because the petitioner surrendered the spare bus, that by itself will be of no consequence.

For all these reasons, the order of the Tribunal suffers from error of law apparent on the face of the record which requires interference by this

Court exercising revisional jurisdiction. First of all, it cannot be contended that the respondent can claim equal status with the petitioner because of

his inferiority of marks, even though it is a numerical inferiority as the Tribunal puts it. Assuming for a moment, that there is equality of claims

between the parties, even then under the proviso to Section 47(1) of the Act the petitioner will be entitled to perference because he is a holder of a

driving licence for transport vehicles. If the proviso had been properly applied the petitioner would have been justly entitled to the permit easily.

For all these reasons, it is submitted that the order of the Tribunal suffers from an error of law apparent on the face which requires interference of

this Court and therefore it is prayed that the order be set aside.

Mr. M.N. Rangachari, learned Counsel for the respondent frankly states that the Tribunal has not considered the matter in the light of the ruling

of this Court in C.R.P. No. 559 of 1976. But that alone will not warrant interference because there is a comparative estimate between the

claimants and it is by process of that reasoning it has found that merely because the respondent had suffered numerical inferiority of the marks,

because his principal place is not exactly on the route, but 3 k.m., away, it took the view that both are equal. Under those circumstances, there

were important facts which outweighed the superiority of marks and they are (1) Possession of a spare bus. (2) The long experience. (3) It is just

and proper the respondent must get a second permit earlier. (4) He has been a lorry operator from 1978. Certainly, it cannot be contended that

these factors are not relevant for the grant of permit.

In order to appreciate the respective contentions I will do well to draw a tabular statement of the respective qualifications of the petitioner and

the respondent.

Qualifications Qualifications

of the Petitioner. of the Respondent.

(a) B.E. Mech. (a) General Manager

Engg. is a Diploma Holder

in Mech. Engg.

in Refrigeration

and Air Conditioning

and appointed

recently.

(b) Single bus stage (b) Principal place

carriage-operator- of business is not

Ayyangudi to Vadalur on the route but

This is 3 k.ms., has a night halt

of the route concerned. cleaner at Kattumannargudi.

(Route concerned

is Sri Mushnam

to Eyyalur 49.2

K.ms. Medium

route), S.A. District.

(c) Licence for (c) Spare bus

driving heavy vehicle

(d) Experience (d) More experience

from 9.7.79. by 6 months from

19.1.79.

(e) Spare bus application (e) Lorry operator

pending. from 1978.

W.P. 8756 of

1981 filed by the

petitioner to dispose

of the matter

as the applications

were pending for

a long time (This

would show the

earnestness and

willingness to ply

on the route).

23.12.1981 R.T.A., Respondent 8 marks,

rejected both the which includes

applications. Petitioner 2 marks for technical

10 marks. qualification.

Rejected Rejected

i. Recent grantee i. Principal place

away from the

route.

ii. Surrendered ii. General Manager

his spare bus permit appointed recently.

16.2.1983 - Respondent-8

STAT ORDER marks. Permit

Petitioner-10 granted.

marks rejected.

No spare bus 1. Spare bus

permit.

Less experience 2. Longer experience

Branch office

at Kattumannargudi

and sub office

at one of the termini.

Lorry operator

from 1978.

The grant of motor vehicle permit is governed by the various criteria laid down u/s 47 of the Act. The necessary guidelines are provided under Rule

155-A. It is well settled in law that the rules are complementary to the section and they do not override the section because they merely provide

guidelines on which guidelines marks are awarded. In P. Kumaraswamy Vs. State Transport Appellate Tribunal, Madras and Another, , it is

observed as follows:

Actually, Rule 155-A is in implementation of Section 47(1) but is not exhaustive of all considerations that will 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.

Mr. Govind Swaminathan, learned Counsel for the petitioner is correct when he says that it is not for a mere academic exercise the marks are

awarded. There is a purpose in awarding marks, the purpose being where one of the operators gets higher marks, on merits certainly that is a

relevant factor to be taken into consideration. This being a settled proposition, it has to be considered in juxta-position to another settled

proposition, viz., that the marks merely afford guidance and do not conclude. As a matter of fact, in D.R. Venkatachalam and Others Vs. Dy.

Transport Commissioner and Others, , it is observed as follows:

Marks shall guide, not govern the award.

In balancing these two principles, the theory evolved is when the claim of the operator who has superior marks has to be overlooked, it has to be

found categorically that the grant of permit in favour of that operator would not be conducive to the welfare of the public interest. This is because it

is a touchstone of public interest on which the consideration for the grant proceeds. It is this view I took in C.R.P. No. 1559/1976.A . Duraisamy

v. The Regional Transport Authority, Vellore, I observed as follows:

In other words, it is the contention of Mr. Venugopal that only if it is not required to do so in public interests the higher marks could be outweighed

by taking into consideration these qualifications to award the permit to an applicant with less marks. I may now refer to K. Balasubramania Chetty

Vs. N.M. Sambandamoorthy Chetty, , which is relied on by both the sides. Mr. Venugopal would 1ay stress upon this observation of the Supreme

Court occurring in paragraph 5 at page 822.

The fact that the appellant had 11 marks as against 7.40 of the respondent would certainly be a factor in favour of the applicant, but

notwithstanding his higher marks, if public interest so requires, he may have to yield place to the respondent in the matter of selection for grant of

permit.

It is true as provided under Sub-rule 4, after the marks had been awarded under Sub-rule 3, the applications would 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.

The Supreme court observed in K. Balasubramania Chetty Vs. N.M. Sambandamoorthy Chetty, at page 821:

But that by itself would not be determinative of the controversy. The paramount consideration to be taken into account in determining as to which

of the applicants should be selected for grant of permit always is public interest. Section 47(1) provides in so many words that the Regional

Transport Authority shall, in considering an application for a stage carriage permit have regard inter alia, ''to the interest of the public generally'',

and this is a consideration which must necessarily outweigh all others. It is ultimately on the touchstone of public interest that selection of an

applicant for grant of permit must be justified. Clause (3) of Rule 15 5-A undoubtedly provides for giving of marks to the rival applications but the

number of marks obtained by each applicant can only provide a guiding principle for the grant of permit. It can never override the consideration of

public interest which must dominate the Selection in all cases. In fact Clause (4) of Rule 155-A concedes that after the applicants are ranked

according to the total marks obtained by them the applications shall be disposed of in accordance with the provisions of Section 47(1).

In this case, what the Tribunal did was it has taken into consideration as seen from paragraph 4 of its Order, (1) the longer transport experience,

(2) possession of spare bus (3) full sector qualification

as against the petitioner''s experience of only 19 miles (''4) experience on that section. As regards the first three, I am unable to see how they could

be put against the petitioner or to approach it in a positive way how they could be weighed in favour of the respondent. To my mind, it appears

these qualifications can be weighed on the side of the respondent, only if public interest warrants the permit be not granted to the petitioner.

From the above, it is clear that this principle was enunciated only from the judgment of the Supreme Court in K. Balasubramania Chetty Vs. N.M.

Sambandamoorthy Chetty, . In fact, the same principle has been reiterated by me in C.R.P. 2614 of 1977 where I held as follows:

No doubt it is well settled by now that marks alone cannot form the sole criterion for the grant of a permit and what constitutes the touchstone is

only public interest. However, this court has taken the view in C.R.P. No. 1559 of 1976 that where the higher marks obtained by an operator are

to be overlooked it has to be stated as to how public interest will not be subserved by the grant of permit in favour of that operator. I do not find

any consideration by the Tribunal in this light. A1 that it states in paragraph 11 is that the 1st respondent (third appellant before the Tribunal) has

30 years of experience with full sector and he was only a single bus operator. This is not a proper consideration, as laid down in the ruling cited

above. Therefore, the order of the Tribunal is hereby set aside and the matter is remitted to the Tribunal for fresh consideration in the light of the

observations made above.

Examined in this light, I find the Tribunal has completely misled itself. There is not even a finding as to why the superiority of the marks of the

petitioner had to be overlooked. Would the public interest suffer if the grant is not so issued? These considerations are totally absent. However,

Mr. M.N. Rangachari, learned Counsel for the respondent, would state that his client has better qualifications. I am of the view, that is not the way

to look at the matter at all. Firstly it has to be found categorically that inspite of superiority of marks, it will not be conducive to public interest to

grant the permit in favour of the petitioner. After so holding, it must consider the claim of the respondent. To me it appears that the Tribunal had

made up its mind to grant the permit in favour of applicant No. 3 and started giving reasons for such a conclusion. Normally, the petitioner would

be entitled to, as is said above, the grant of permit by reason of ten marks which he had obtained. These marks are sought to be belittled by saying

the respondent suffers only from a numerical inferiority. First of all, it passes my comprehension as to what exactly is meant by numerical inferiority.

Two marks do have more weightage and that cannot be brushed aside by the use of this phrase. But the Tribunal goes on to say the principal place

of business is not exactly on the route, but 3.k.m. away. Here, the question is whether there is any leeway or elbow-room given in the rules to the

Tribunal. Rule 155-A(3)(a) states: ""Two marks shall be awarded to the applicant who has his principal place of business or permanent residence at

either terminus or on the route."" Therefore, there is a principal place of business or permanent residence (1) at either terminus or (2) on the route.

One cannot improve upon it by saying after all it is 3 k.m. away. Or again it is so near the route. These are considerations which are not permitted

by the rule. Therefore, this is yet another error committed by the Tribunal. Then, about the comparative estimate. The possession of spare bus has

always been considered as an asset. This is too broad a statement which is not warranted at all. In C.R.P. No. 1559 of 1976, which I have just

now quoted, I have held, possession of spare bus would not be put against the petitioner when the law does not require the possession of spare

bus. Here again, only when completing claims are equal, possession of spare bus may be a tilting factor. But here there is no question of equality of

claims at all. Nor again, it is stated by the Tribunal that possession of spare bus will be useful to the travelling public because the route is such

where there is likely to be a number of breakdowns. This is the reason why I said very possession of spare bus to be called an asset is too general

a statement which cannot be accepted in law. This is the third error committed by the Tribunal. I will assume for a moment that the competing

claims are equal, which certainly are not. This is only for the purpose of argument. Then again, how the Tribunal could over looked the effect of

Section 47(1) proviso. Though the latter half of the proviso was introduced by Central Act No. 47 of 1978, it is admitted on the date of the

consideration by the Regional Transport Authority this clause was in force very much. Here again, on preferential qualification, the petitioner would

have been entitled. The failure to consider the effect of the proviso constitutes yet another error. From the foregoing discussion, it will be clear that

the qualification which was slanted in favour of the respondent would come into play only when (1) the tribunal finds categorically it will not be

conducive in the interest of the public to grant the permit in favour of the petitioner (2) the petitioner and the respondent are competing on equal

terms. (3) The petitioner will not have the benefit of Section 47(1) proviso, the latter part. In view of the so many errors 1 have not the slightest

hesitation to set aside the order of the Tribunal, which is hereby set aside and the matter, is remitted for fresh consideration in the light of the

observations made above, since the grant is of the year 1981 and this is being the only bus available on the route, I hereby direct the Tribunal to

dispose of the matter on or before 15th April, 1984 and submit a report to this Court. I make it clear that this order shall be obeyed punctually.

The revision petition will stand allowed. No costs.

Till final orders are passed by the Tribunal, the respondent can continue his transport operation without any let or hindrance.