Ganesh vs K.S.T.A.T.

Chandrakantaraj Urs, J.—This matter coming up for preliminary hearing after notice and after hearing the Counsel for parties is disposed of by the following order.

The learned Government Pleader who had been directed to produce the records has produced the same and the same is perused.

The facts leading to this petition may be briefly stated and they are as follows: The Regional Transport Authority Mangalore, Dakshina Kannada (hereinafter referred to as the R.T.A) at its meeting held on 19th May 1984 considered the representations and assessed the need for providing bus services on the route Kunjathbail to State Bank Via Kavoor, Kuloor, U. Stores, Lady-hill, Hampankatta and to fix the number of stage carriages under Sub-section (3) of Section 47 of the Motor Vehicles Act, 1939, (hereinafter referred to as the Act). It was designated City Route No. 13B. At the meeting, after perusing the records, the R.T.A. came to the conclusion that on account of the traffic generated at Kunjathbail, one of the termini on the route and having regard to the location of the Government Offices and factory of Mangalore Chemical and Fertilisers Ltd., and further having regard to the fact that only three direct buses were operating on the route in question decided to increase the number of buses by two more each one operating from one termini in the opposite direction making 10 round trips per day. Pursuant to that decision it invited applications from the intending stage carriage operators as per Gazette Notification No. RTA.BL. SCP. 1-84-85 dated 15-6-1984 published in the Karnataka Gazette of June 28, 1984 In response to that application, as many as (sic) applicants responded either applying for permits in either direction or both the directions. While those applications were pending consideration, some of the objectors preferred a revision petition before the Karnataka State Transport Appellate Tribunal, Bangalore (hereinafter referred to as the Tribunal), u/s 64-A of the Act inter alia contending that the determination was u/s 47(3) of the Act; not in accordance with law and that there was excessive fixation of the number of trips etc. That revision petition came to be allowed partly. The Tribunal while confirming the opening of the routes under Sub-section (3) of Section 47 of the Act restricted the number of trips to 5 round trips per vehicle in each direction and further restricted the operation of those vehicles to meet the needs of the peak hour traffic only. Aggrieved by that decision of the Tribunal, one M. Viswanatha Devadiga preferred W.P Nos. 20133 to 20135/1984 in this Court inter alia contending that the Tribunal ought not to have interfered with the number of trips determined by the R.T. A. while making the determination of the number of stage carriages in respect of which stage carriage permits may be granted on the routes in question under Sub-section (3) of Section 47 of the Act. Those petitions came to be clubbed together with some other Writ Petitions which were filed by other stage carriage operators in respect of other routes determined similarly by the same R.T.A., Dakshina Kannada. This Court having heard the arguments came to the conclusion that the number of trips on the several routes in question came to be determined by the R.T.A., Dakshina Kannada, on no material at all and therefore the R.T.A. had acted with certain amount of material irregularity in not collecting the data in regard to the number of trips required to be made by the number of stage carriages determined for the routes in question. Therefore, this Court issued the following directions in the said Writ Petitions;

(i) The decisions of the R.T.A., and that of the K.S.T.A.T in so far as they hold that there is a need to introduce the services in question are not disturbed.

(ii) The resolution of the R.T.A. and the orders of the K.S.T.A.T. in so far as they relate to the number of trips to be allowed on the routes in question and imposition of a condition that the trips must be operated only during peak hours are also quashed.

(iii) The matters now stand remitted to the R.T.A. with a direction to collect necessary and relevant material as to the number of trips to be permitted to be operated on the routes in question in the light of the observations made in this order and determine the same in accordance with law after hearing the parties herein.

(iv) After determination of the number of trips, the R.T.A. is directed to proceed in the matter in accordance with law.

After the remittance of the matter as above, the R.T.A., Dakshina Kannada, by a resolution dated 18-4-1986 fixed the number of trips on the routes in question namely, State Bank to Kunjathbail and Kunjathbail to State Bank at 10 round trips in each direction, having obtained the necessary survey report from the Inspector of Motor Vehicles. It also resolved on the same date in respect of the same matter that the Secretary of the Authority shall re-notify the route and invite applications under Sub-section (2) of Section 57 of the Act and place the pending applications as well as fresh applications before the R.T.A. Aggrieved by the last mentioned decision of the R.T.A. to re-notify and invite fresh applications, one P. Jayaram who was also an applicant in response to the Notification published on 28-6-1984 filed revision petition before the Tribunal inter alia contending that the direction to re-notify issued to the Secretary - R.T.A., by the Regional Transport Authority was without jurisdiction and without the authority of law and totally uncalled for. The Tribunal after hearing the parties and examining the history of the case including the direction given by this Court in the earlier batch of Writ Petitions allowed the revision petition and directed that the applications already received pursuant to the Notification on 20-8-1985 should be disposed of without calling for any fresh applications thereby meaning, fresh applications need be called for only if none of the applicants were found suitable for grant of permits on the routes in question.

Aggrieved by the same, the petitioner in this Writ Petition who was one of the applicants who bad made an application for the grant of stage carriage permit only on the route Kunjathbail to State Bank has approached this Court under Article 226 of the Constitution inter alia contending that the direction given by the R.T.A. to the Secretary to renotify was quite in order and in accordance with the law declared by this Court and therefore the Tribunal exercised the revisional jurisdiction which was not called for in the light of the law declared by this Court.

Several questions which arise for consideration in this Writ Petition are :

(1) Whether the petitioner who was not a party to the revisional proceedings before the Tribunal can maintain this petition?

(2) Whether the R.T.A, correctly understood the remand order made by this Court together with the directions contained in W.P.No. 6148/1985 and connected matters?

(3) Whether there was need to call for fresh applications having regard to the history of the case and having regard to the notification published under Sub-section (2) of Section 57 of the Act and gazetted on 28-6-1984?

(4) What exactly is the determination required to be made by the R. T. A. under Sub-section (3) of Section 47 of the Act?

On the question whether the petition is maintainable under Article 226 of the Constitution, Counsel for the petitioner has drawn my attention to the observations of the Division Bench of this Court in the case of K. M. Naganna & Ors. v. The State of Mysore & ors. ILR 1968 Mys 1132. This Court in the said case, placing reliance upon English decision of 1870 in R v.Survey Justices, ruled that certiorari proceedings involved an element of actio popularise: because the high purpose of the Writ of Certiorari is to assure effective working of the machinery of justice by preventing inferior tribunals and public authorities from abusing their powers.

It is too late in the day to dissent from that view. But the question is whether on the facts of this case, the Tribunal could be said to have abused its powers in deciding an issue before it, one way or the other in a matter brought up before it by a petitioner, who was aggrieved by the resolution of the R.T.A.

Answer in that circumstance would be emphatically in the negative.

Petitioner, undoubtedly, was one of the applicants soon after the Notification was published on 28th June 1984 in the Gazette. He applied for the route Kunjathbail to State Bank. Admittedly, he did not apply for the other route i.e., from State Bank to Kunjathbail. As already narrated earlier in the course of this order, the matter came to this Court and was remanded in terms which have been set out earlier.

This Court did not disturb the finding of the R.T. A. that the need had been established, nor did this Court direct the determination afresh under Sub-section (3) of Section 47 the number of stage carriages to be operated. It only directed that the R.T.A. should determine the number of trips to be operated by the Stage Carriages determined earlier having regard to the material on record or material which had to be collected. In that view of the matter, the petitioner did not either lose any right, which he had acquired by virtue of the application for the route or acquire any right by the order of remand which he already did not earlier have. Therefore, when on remand, the R.T.A. decided, not only the number of trips which the two vehicles in opposite directions were required to perform but also to re-advertise and call for fresh applications, he cannot be said to be aggrieved. If he felt aggrieved, he should have preferred a revision petition in order to eliminate future competition to his application for the route Kunjathbail to State. Bank. However, he did not feel aggrieved as he apparently was not, as he did not prefer a revision. He cannot now be said to be aggrieved because the Tribunal at the instance of another aggrieved person has reversed the findings of the R.T.A. in revision.

It is seen from the records, that the revision petitioner before the R.T.A. had made only the R.T.A. respondent or the opposite party and correctly so because this Court had held that any determination relatable to Section 47 is purely administrative action.

In fact, the determination of the number of trips is relatable to Section 47 itself is in grave doubt as a proposition of law. But in any event, that determination is not dependent on the parties before it if it is made part of the process of determination u/s 47 (3), It is purely an administrative Act and therefore, neither the applicants who were already on record nor any other objector was a necessary party.

Nevertheless, it is seen that one of the applicants, who was an interested person impleaded himself before the Tribunal as second respondent and supported the petitioner. Nothing prevented, similarly, the petitioner in this Writ Petition also to implead himself if he was so advised. Not having done that, he cannot now come to this Court saying that he is aggrieved by the order of the Tribunal which has set aside that part of the resolution of R.T.A. which directed fresh calling of applications for the two routes earlier opened.

If the petitioner is not an aggrieved person, not withstanding the width of power of this Court to issue a Writ of certiorari, he is not the one who can move this Court in order to take advantage of filing an application now for the opposite direction also on the route i.e., from Sate Bank to Kunjathbail

Normally, having on record the first question against the petitioner 1 should have dismissed this petition without answering the remaining three questions. But in order to avoid the confusion in the mind of the R.T.A. it is necessary to summarise the scope of Section 47 (3) as understood by the various decisions of the Supreme Court and this Court.

It is clear from the resolution of the R.T.A. that the R.T.A. did not make any attempt to carefully study the remand order of this Court. This Court directed disposal in accordance with law after the number of trips had been determined on relevant material and on consideration of such material. This Court did not direct specifically or by implication calling of fresh applications. Therefore, that part of the order of the R.T.A. to call for fresh applications was entirely on its own and not as a consequence of the direction issued by this Court in the remand.

Similarly, to answer the third question formulated above, one has necessarily to examine the scope of Section 47(3). Before doing so, it is necessary to notice one argument advanced by Sri H.B. Datar, Learned Senior Counsel appearing for the petitioner. That argument is that as decided by this Court in the case of Prabhakar Adappa v.K.S.T.A.T. & ors. 1982(2) KLJ 323, once this Court set aside the order of the R.T.A. and made a direction to determine afresh the number of trips, the applications made in response to the Notification published on 28th June, 1984, became non est in law. Indeed, in the afore mentioned case of Prabhakar Adappa v. K.S.T.A.T. & ors. 1982(2) KLJ 323, I have held on the facts of that case that the application or applications made in response to the Notification following the opening of new routes were non est in law with the opening of routes itself being set aside subsequently by this Court. That is because, the very foundation for the invitation of applications from Stage Carriage Operators to operate the new routes having disappeared, the applications were considered non est in law. On the facts of this case, that would not be the position. Here, this Court kept in-tact that part of the order of the R.T.A. Dakshina Kannada which had opened the routes. What remained was the short question of determining on the basis of some material, the number of trips which was required to be made on those routes by the two vehicles, which were determined u/s 47(3). Therefore, the determination made u/s 47(3) had not been disturbed by this Court and in that view of the matter, the applications made in response to the Notification of 28th June, 1985 were still on record and in that circumstance to call for fresh applications would be an act outside the scope of the remand.

That decision, therefore, is not of any help to the petitioner.

Section 47 of the Motor Vehicles Act, particularly, Sub-section (3) thereof appears to have fallen for consideration by the Supreme Court in detail for the first time in the case of Abdul Mateen v. Ram Kailash AIR 1963 SC 64. The Supreme Court observed that where a limit had been fixed u/s 47(3) by the R.T.A. and therefore the said Authority proceeded to consider the applications for permits u/s 48 read with Section 57 of the M.V. Act, the R.T.A. must find out the number of permits issued by itself within those limits. Later, in the case of Jaya Ram Motor Service v. S. Rajarathnam & ors. 1967(2) SWR 857 the Supreme Court ruled that once the Authority had fixed the number of vehicles to be operated in the routes or the area of the particular route and the permits to be granted therefore the stage of inquiry u/s 47(3) was over.

18 No Authority contrary to the above has been brought to my notice. Therefore, if the ruling cited above are borne in mind the moment the R.T.A., Dakshina Kannada determined that it shall open the routes State Bank to Kunjathbail and Kunjathbail to State Bank to be operated by one bus from each direction performing 10 trips and invited applications, the exercise or determination u/s 47(3) must be held to have been over. If in the light of this enunciation, the order of this Court in the earlier Writ Petition is to be understood then, as already held that the remand was directed not to the exercise under Sub-section (3) of Section 47 of the Act, but only in regard to the number of trips which had been fixed at 10 and which in turn was reduced to 5 by the Tribunal as it was arbitrary and not on the basis of any material. Thus, it is seen, there was no question of fresh applications being called for as if it was a fresh determination u/s 47(3) of the Act.

The reliance placed upon the decision of this Court in the case of Revanappa Sangappa Motti Vs. The Regional Transport Authority, Bidar and Others, by the Learned Counsel for the petitioner is not of much help. Indeed, Full Bench in the said case did express itself as follows :

"7. xxx xxx The schemes of these provisions do not seem to impose any such restriction on the R.T.A. It is open to the R.T.A. to adopt such a course ; but the R.T.A does not seem bound so to do. Indeed, issue of a notification inviting applications and consideration of the pending applications received pursuant to that notification may be a very desirable course."

xxx xxx xxx 20. The above was said in the context of the question posed for answer by the Full Bench. The question posed was as follows :

"1. If a person makes, suo motu an application to the Regional Transport Authority for grant of a permit for a stage carriage over a new route in respect of which there is no prior determination by the Regional Transport Authority, under Subsection (3) of Section 47 of the Motor Vehicles Act, 1939, of the number of permits to be granted over that route, should the Regional Transport Authority, after determining u/s 47(3) the number of permits to be issued over that route, call for applications for permit or permits over that route, or, can the Regional Transport Authority, without so calling for applications, consider and decide at its next meeting whether a permit should be granted to the person, who has already made, sub motu, the application for a permit."

(underlining is mine)

Therefore, Full Bench, with the utmost respect, made that observation taking grant of stage carriage permit to be synonymous with determination of the number of vehicles or the type of vehicles which should be permitted to be used in a region, given area, or a given route under Sub-section (3) of Section 47 of the Act.

The decision of the Supreme Court in R. Obliswami Naidu Vs. The Additional State Transport Appellate Tribunal, Madras and Others, was noticed by the Full Bench. In the said decision, Supreme Court held that suo motu application, if disposed of soon after determination of the number of vehicles to be used as Stage Carriages on a route would result in manipulation and elimination of competition in the matter of grant of stage carriage permits. Therefore, Full Bench observed, prudence required that even in the case where suo motu applications had been made before determination, the R.T.A. should call for fresh applications. That cannot be equated with the proposition that valid application made in response to a notification after the opening of the routes and determination of the number of Stage carriages u/s 47(3) is over, they should be ignored and fresh applications called for at the whim of the R.T.A. That is not the proposition of law laid down by the Full Bench.

In that view of the matter, this petition is misconceived and therefore it is rejected. The order of the Tribunal is affirmed.

The R.T.A. shall dispose of the applications that it had on record in response to its Notification published in the Gazette of 28th June, 1984 expeditiously in accordance with what is stated above and in accordance with law.