K.M. Sherfudeen vs M. Amirthavalli

Raju, J.—The above revision has been filed challenging the order of the State Transport Appellate Tribunal Madras, dated 13-1-1989 in

Appeal No. 1427/86 whereunder the Tribunal has set aside the grant of permit made by the Regional Transport Authority, Pudukottai, in favour of

the original petitioner by its proceedings in R. No. l4692/A2/79 dated 10-11-1966 and directed the grant in favour of the original respondent. The

Regional Transport Authority, Pudukottai invited and considered applications for the grant of a permit to ply a stage carriage on the route

Pudukottai-Trichy of a length of 84.5 K.M. The original respondent, a partnership firm, was applicant No. 1 and the original petitioner, an

individual by status, was Applicant No.3, among several other applicants. The Regional Transport Authority awarded ten marks, to the original

respondent made up of 2- marks for principal place of business; 2- marks for technical qualification; 2- marks for having its own workshop, and

4-marks for viability of unit for already having two buses. The history sheet of the original respondent was also claimed to be clean with experience

from 1972 as a stage carriage operator with a sector knowledge of 16 K.M. Two of the partners of the firm were also said to have had driving

licence with heavy vehicle endorsement. The original petitioner was also awarded ten marks by the Regional Transport Authority, made up of 2-

marks for principal place of business; 2-marks for technical qualification; 2- marks for having his own workshop and 4- marks for viability of unit

for already having two buses on the date of the hearing by the Regional Transport Authority. He had no spare bus on the date of hearing by the

Regional Transport Authority. Apart from that, his history-sheet was considered to be not clean but containing three warnings and two cautions

with no sector knowledge and mere experience from September, 1958 to 1-5-1978 as lorry operator and from 1976 onwards as bus operator.

He had an idle bus from the date of the Regional Transport Authority''s hearing.

1-A. On a consideration of the respective claims, the Regional Transport Authority, as noticed earlier, granted a permit in favour of the original

petitioner and on appeal, the Tribunal reversed the grant and granted a permit in favour of the original respondent. It is unnecessary for me at this

stage to consider the comparative merits and the correctness of the grant, which consideration would be undertaken after dealing with the general

issue raised in this case even at the first instance before the submissions made on the respective claim of the parties.

As a general issue, the oft-repeated claim of allowing both persons to run, has been pressed into service, to sustain both the grant by the

Regional Transport Authority as also that the Tribunal taking umbrage under the provisions of the Motor Vehicles Act, 1988 (for short, ""the New

Act"") and the Rules framed thereunder and some of the decisions of this Court as well as the Apex Court. Counsel appearing on either side joined

together in projecting such a claim and having regard to the general nature of the issue raised and the far-reaching consequences arising out of the

same, I requested Mr. V.T. Gopalan, learned Senior Central Government Standing Counsel to assist the Court in the matter and permitted Mr. N.

Palani, One of the standing Counsel for a State Transport undertaking, to make submissions on the general issue. As a matter of fact, at the time of

hearing, Learned Counsel for the petitioner preferred to adopt the submissions made by the Senior Central Government Standing Counsel Mr.

V.T. Gopalan on the general issue referred to above.

Before adverting to some of the decisions referred to and relied upon by the counsel projecting conflicting stands, I would consider it necessary

to refer to some of the provisions of the Motor Vehicles Act (IV of 1939), hereinafter referred to as ""the old Act"" and the Motor Vehicles Act,

1988 (New Act) and other relevant provisions. S. 47 of the old Act laid down matters which a Regional Transport Authority shall have regard to

in the matter of considering an application for a stage carriage permit. Sub-s. (3) of S. 47 enjoined on the Regional Transport Authority, having

regard to the various matters mentioned in Sub-s. (1) to limit the number of stage carriages generally or of any specified type for which stage

carriage permits may be granted in the region or on any specified area or on any specified route within the region. S. 48 provided that the Regional

Transport Authority may, subject to the provisions of S.47, grant a stage carriage permit in accordance with the application or with such

modification as it deemed fit or refuse to grant such a permit and the conditions which should be attached to the permit, if so granted. S. 70 of the

New Act provides for the making of an application for a permit in respect of a stage carriage with S. 71 stipulating the procedure to be followed

by the Regional Transport Authority in considering such an application and S. 72 providing that the Regional Transport Authority, on an application

made to it under S. 70, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant

such a permit. Unlike S. 47(a) of the Old Act, which casts an obligation on the Regional Transport Authority to limit the number of stage carriages,

Sub-S. (3) of S. 71 of the New Act, does not contain any such specific mandate and instead, it enables the Central Government, having regard to

the number of vehicles, road conditions and other relevant matters to issue directions to the State Government, which on such directions from the

Central Government, shall direct a State Transport Authority and a Regional Transport Authority to limit the number of stage carriages generally or

of any specified type, as are fixed and specified in the notification, operating on city routes in towns with a population of not less than five lakhs.

The State Government was further enabled to stipulate a percentage of stage carriage permits reserved for the scheduled castes and scheduled

tribes where the number of stage carriages are fixed, and the provision also casts an obligation on the Regional Transport Authority to abide by

and implement the notification as above. Sub-s. (4) of S. 71 contains a prohibition that Regional Transport Authority shall not grant more than five

stage carriage permits to any individual or more than ten stage carriage permits to any company. S. 74 of the New Act provides for the grant of

contract carriage permits and Sub-s. (3) thereof provides for fixation of number of contract carriages by the Central Government and the carrying

into effect of such fixation by the State Government and other authorities in the manner stipulated in the said provision. S. 80 of the New Act

provides the procedure for applying for and granting of permits. Sub-s. (1) of S. 80 lays down that an application for a permit of any kind may be

made at any time and Sub-s. (2) of S. 80 provides that a Regional Transport Authority shall not ordinarily refuse to grant an application for permit

of any kind made at any time under the Act and the first Proviso obliges the Regional Transport Authority to summarily reject the application if the

grant of any permit in accordance with the application would have the effect of increasing the number of stage carriages as fixed and specified in a

notification in the Official Gazette under Clause (a) of Sub-s. (3) of S. 71 or of contract carriages as fixed and specified in a notification in the

Official Gazette under Clause (a) of Sub-s. (3) of S. 74. The main source of inspiration for the Learned Counsel projecting a claim that both the

grant by the Regional Transport Authority and the State Trans port Appellate Tribunal may be confirmed to maintain both the permits, is the

provision contained in the New Act and particularly Sub-S. (3) of S. 71 and the provisions of Sub-S. (2) of S. 80.

The various decisions relied upon by the Learned Counsel may now be taken up for consideration . In N.P. Motor Service (P.) Ltd. Vs.

Andavar Transports (P.) Ltd. and Others, a Full Bench of this Court had considered the powers of this Court dealing with a petition under Art.

226 of the Constitution of India to make interlocutor, orders during the pendency of the Writ Petition It was held by the Full Bench that once there

has been a decision under S. 47(3) of the Old Act of the number of permits for a given route, the Regional Transport Authority in dealing with the

applications for the grant of such permits cannot exceed that number, nor can the State Transport Appellate Tribunal in appeal from the Regional

Transport Authority''s Order exceed that number so fixed and even in interlocutory proceedings pending a writ petition, it was considered to be

improper for the High Court to pass an order which will have the effect of exceeding that number. The Full Bench further was of the view that

notwithstanding the inherent powers of this Court under Art. 226 of the Constitution to pass appropriate orders to meet the exigencies of the

situation and the needs of a given case, it cannot be exercised so as to contravene the provisions of a Statute as is found in S. 47 (3) in the context

of the other provisions of the Motor Vehicles Act. Review Applications in the above batch of cases appear to have been filed in C.M.P. Nos.

7298, 7335,7336 and 7776 of 1970 seeking to modify the earlier orders of the Full Bench and when the matter came before Maharajan, J., the

only Judge remaining available for dealing with the review petitions, by an order dated 26.8.1970, held, applying the ratio of Md. Ibrahim, v. State

Transport Appellate Tribunal (AIR 1970 SC1540 = 1971 (1) A.W.R. 76 (SC), that the fixation of the limit would have no application to inter-

District routes.

In Mohd. Ibrahim, etc. Vs. The State Transport Appellate Tribunal, Madras, etc., , the Supreme Court was concerned with the scope of S. 47

(3) and S. 64 of the Old Act and the need as well as the stage for fixing the limit of number of stage carriages and the nature of routes. It was held

therein that S. 47(3) of the Act was confined in its operation in or within the region and it would not apply to inter-state permits because an inter-

state permit cannot be effective unless it is Counter-signed by the Authority of the other State. Similarly, it was held that S. 47(3) of the Old Act

was inapplicable to the grant of interregional permits. The Court also affirmed the earlier view taken that the Regional Transport Authority should

fix the limit of number of stage carriages under S. 47(3) of the Old Act and after so fixing only shall consider the application for grant and

representations in connection therewith, that when a new route is opened for the first time and an advertisement is issued calling for applications for

such a new route specifying the number of vacancies for it, it would be reasonable to hold that the number of vehicles is specified as the limit

decided upon by the Regional Transport Authority and that the jurisdiction of the Regional Transport Authority in the matter of orders under S.

47(3) of the Old Act being entirely separate from the jurisdiction of the Regional Transport Authority in the matter of grant and refusal of a permit

under S. 48 and S. 57 of the Act, neither the Regional Transport Authority at the time of grant of permit no the State Transport Appellate Tribunal

hearing the appeal against the refusal to grant permit, could modify the orders under S. 47(3) of the Old Act.

The decisions in M. Chinnaswamy Vs. Dhandayuthanpani Roadways (P) Ltd., , a judgment of two learned judges of the Supreme Court, was

relied upon to show that there cannot be anything wrong in confirming both the grants having regard to the long lapse of time and the public interest

involved, in a particular case. That was also an appeal from an order of this Court and in a crisp order it was observed that although the permit to

be granted was only one, since by orders of Court or other authority both the parties had been allowed to ply their buses it seemed to be so

obvious that in public interest if two stage carriages have been plying on the route for about 16 years, there was no reason to confine it to one. The

fact that both sides agreed that there was necessity for two permits on the route was placed on record and the inter se dispute was considered to

be academic for adjudication and the Court directed status quo of both being allowed to ply their stage carriages on the route by taking

appropriate permits from the authorities.

6-A. In Guruswami Reddiar, Panruti v. The South Arcot Dist. Co-operative Motor Transport Society and another (Civil Appeal No. 1547 of

1970) which was also an appeal from a decision of this Court, three learned Judges of the Apex Court adverted to the earlier decision in M.

Chinnaswamy Vs. Dhandayuthanpani Roadways (P) Ltd., and held that it did not constitute a precedent. The order was pronounced on 1-5-

1984. The observation is as follows:-

....II was urged that under the interim relief for the last fourteen years both the parties are plying their buses on the route in question and therefore

till the Tribunal decides the appeal same arrangement should continue. We are at a loss to appreciate this submission. The appellant is operating a

stage carriage under the orders of this Court. Only one permit was available on the route. Yet the interim order of this Court enabled both the

parties to run their buses. In other words, this Court by its order multiplied the available permits from one to two. May be such an order can be

made in extra-ordinary circumstances. But having regard to the provisions of law we have grave doubt whether this Court can, on its own multiply

permits and direct the ""same to be given to both parties, only one of whom will in law be entitled to one permit only. The Court may order an

equitable distribution of existing cake not enlarge the cake. Under the interim orders, authorities under the Motor Vehicles Act were forced to

grant permit to both the contending parties. Appellant thus got a permit and plied his vehicle though he had lost the right to get permit by the order

of the appropriate authority.

Mr. T.S. Krishnamoorthy Iyer, Learned Counsel for the appellant with his usual persuasiveness drew our attention to the decision of this Court in

M. Chinnaswamy Vs. Dhandayuthanpani Roadways (P) Ltd., . That decision clearly recites that ""Although the permit to be granted was only one,

by orders of the Court or other authority both the parties have been allowed to ply their buses. It seems to be so obvious that in public interest

even two stage carriages have been plying on the route for the last 16 years there is no reason to confine it to one"". Therefore, this decision will not

provide any precedent. We are of the opinion that granting of the permit is a power of the statutory authority under the Motor Vehicles Act and in

a petition for a writ of certiorari or even mandamus this Court can only examine the validity or correctness of the order but not multiply the permits.

Mr. Krishnamoorthi Iyer, Learned Counsel for the appellant also drew our attention to a decision of this Court in Civil Appeal No. 1133 of 1970

rendered on December 9, 1981. This decision merely reproduces what was observed in M. Chinnaswamy''s case. These are not final decisions to

be binding as precedents. They refer to certain arrangements which are relatable to the facts of each case. They do not purport to lay down a

binding rule that when court cannot decide who in law out of two rival claimants is entitled to a permit, equity resorts easy access to granting them

to both. Strict legal interpretation of the provisions of Motor Vehicles Act may not permit such a condition. Whatever justification was there for

granting interim relief vanishes once the appeal is disposed. And we do not find any justification for continuance of interim arrangement.

Accordingly, we vacate the interim order.

In Civil Appeal Nos. 3381 and 3382/89 arising out of SLP (Civil) Nos. 912 and 913 of 1989, a Bench of two learned Judges of the Apex

Court by order dated 2-8-1989 gave certain directions in the light of S. 80 (2) of the New Act. That was also an appeal arising from a decision of

this Court wherein the appellant before the Apex Court was the grantee of a permit and the appeal was filed against an order of this Court setting

aside the order of the Tribunal directing restoration of the appeal filed before the Tribunal by the objector/claimant. The Apex Court, without going

into the merits of the contentions raised, merely issued a direction as hereunder;

By consent of parties, we therefore allow the appeal and set aside the orders of the High Court so far as appellant''s grant is concerned. We remit

the matter so far as it relates to the application of N. Krishnaswami Chetty for grant of permit, to the State Transport Authority, Pondicherry, for

disposal under S. 80(2) of the Motor Vehicles Act, 1988. It is needless to state that authority will dispose of the matter as expeditiously as

possible.

We, however, make it clear that the grant of permit to the appellant is kept, undisturbed.

In Civil Appeals arising out of SLP (Civil) Nos. 2966 of 2967 of 1982 and C.A. Nos. 3154/81 and 1200/81, the Court issued certain

directions in the following terms.

Under those circumstances it is not necessary to go into the question raised in these appeals. Suffice it to state that all those to whom the grant of

permit has been made by the Regional Transport Authority, will continue to have their permits and all those who not been granted it is open to

them to approach under S. 80 of the Motor Vehicles Act, 1988 for grant of permit and authorities would be free to consider and dispose of

according to law. The appeals are accordingly disposer of.

In C.R.P. No. 1758 of 1982 (R. Marayee Ammal v. C. Alamelu & another) (order dated 14-6-1990), a learned single judge of this Court

deal(sic) with a case of the very same nature under consideration now. The petitioner in the said revision challenged an order of the Stale Transport

Appellate Tribunal setting aside the grant in his favour and granting permit in favour of the contesting respondent. Pending disposal of the revision,

the new Act came into force. Taking into account the fact that during the pendency of the revision both the R.T.A. grantee and S.T.A.T. grantee

were allowed to run, the learned Judge passed an order as hereunder:-

Learned Counsel on both sides have agreed that the ratio laid down by then learned officiating Chief Justice in CRP No. 2106 of 1981 (Thanthai

Periyar Transport Corporation Ltd., Villupuram v. S. Loganathan) dated 22-9-1989 applies to the facts of this case Under identical

circumstances, the learned Officiating Chief Justice, in the light of the provisions of the new Motor Vehicles Act, 1989 and the ratio of the Supreme

Court in C.A/3381-82 of 1989 (M.P. Radhakrishnan and Co., v. N. Krishnaswamy Chetty and another), per milted both the grantees, vis., the

Regional Transport Authority grantee and the grantee of the Stale Trans port Appellate Tribunal to run the vehicles. Respectively following and

applying the ratio in the above Civil Revision Petition to this case, both the Regional Transport Authority grantee and the State Transport Appellate

Tribunal grantee are permitted to run the vehicles. The Civil Revision Petition is disposed of in the above terms

To the same effect are the orders passed by the very same learned Judge in C.R.P. No. 1894/92 (order dated 14.6.1990), C.R.P. No. 1198 of

1986 (order dated 17-7-90) and C.R.P. Nos. l94 and 195 of 1987 (order dated 21-7-1990).

In W.A. No. 1180 of 1987, a Division Bench of this Court, to which I was a party, by judgment dated 25-10-1990, on the basis of the joint-

memo filed and adopting the course followed in C.A. Nos. 3381-82 of 1989 (Supra), the following order has been passed:-

In the light of the above mentioned joint memorandum and since there is no objection in the Writ Appeal being disposed of in terms of the

agreement as reflected in the joint memorandum, we dispose of the Writ Appeal accordingly. The order of the learned single judge remitting the

matter to the Tribunal is hereby set aside. The interim arrangement made by the learned single Judge, however, in view of the joint memo, would

operate in the manner specified in the joint memo and both parties shall be permitted to operate on the disputed route. We wish, however, to

clarify that this order would not be interpreted to mean that the parties have not to obtain permits from the competent Authority. The plying of

stage carriage is, of course, subject to obtaining a valid permit from the authorities concerned, as required by law.

In S.V. Sivaswami Servai Vs. Hafez Motor Transport (Firm) and others,, the question as to the legality and propriety of permitting both parties

to run came up for consideration before two learned judges of the Apex Court. While reversing the decision of this Court, the Court expressed the

view that order directing both parties to ply their buses could not be issued. The learned Judge (J.S. Verma, J. speaking for the Bench) after

adverting to the earlier orders permitting both parties to run, declined to countenance the common request made on both sides as hereunder;

With respect, we are unable to accept this common request made to us in the present case. It is obvious from the abovequoted orders on which

the common request is based that in none of them, any point of law was considered or decided and the order permitting both the claimants to

operate on the route, even though the permit to be granted was only one, was made without adverting to the legal implications of such an order. In

the first place, grant of a permit is to be made primarily with reference to the object of serving the interests of the general public and it cannot be

treated as a dispute relating to grant of permit between the rival claimants only. It is not in the nature of a lis for adjudication of conflicting interests

of private individuals atone. It is, therefore, not a matter which can be decided merely on the basis of an agreement between the two rival claimants

who alone out of several claimants remain in the lis at this stage. The question of grant of permit is to be decided primarily by the R.T. A. having

regard primarily to the interests of the general public and other prescribed relevant factors. That apart, under S. 47(3) of the Motor Vehicles Act,

1939, the R.T.A. is first required to determine the number of stage carriages for the route and then to grant permits according to that determination

made earlier. Grant of any permit in excess thereof was not permissible without first making a fresh determination and increasing the number, if

necessary. It is, therefore, obvious that an order of this kind cannot be made unless the grant of a permit to both the rival claimants would be within

the limit fixed by the R.T.A at the relevant time. There is nothing in any of these abovequoted orders to indicate that this aspect was even adverted

to or that there was material to indicate that the consent order so made was within the limit fixed by the R.T.A. If at all the indication is to the

contrary that a permit which could be granted was for plying only one State carriage on the route whereas the consent order made had the effect of

permitting two stage carriages instead of one. Moreover, if the claimants had the benefit of plying their stage carriages for several years on the basis

of interim orders of the Court or other authorities long after the period of the permit had expired, that does not appear to us to be valid reason for

perpetuating that act and confining the grant only to the litigants before us when claimants for the permits were many and are likely to be many, in

case the question of grant at this point of time is decided afresh. With respect, we are, therefore, unable to accede to this common request and to

confine the operation of this route only to the claimants before us in a lis between them which commenced more than a decade earlier. Admittedly,

the applicants for permit before the R.T.A. were many more and when the matter is to be considered afresh by the R.T.A., every one of them is

entitled to a fresh consideration of his claim on merits. As already stated, our inability to pass a consent order in terms of the abovequoted orders is

for some of the reasons already indicated. For the reasons given by us, the abovequoted consent orders cannot be treated as precedents for such

situation.

The decision in Mithilesh Garg, Vs. Union of India and others etc. etc., dealt with the Constitutional validity of the liberalization policy

introduced under S. 80 of the New Act challenged as being violative of Arts. 14 and 19(1) (g) of the Constitution of India. While repelling the

challenge the Apex Court, noticed the difference between the provisions contained in the old Act and the new Act and observed as hereunder.

The Parliament in its wisdom has completely effaced the above features. The Scheme envisaged under Ss. 47 and 57 of the old Act has been

completely done away with by the Act. The right of existing-operators to file objections and the provision to impose limit on the number of permits

has been taken away. There is no similar provision to that of S. 47 and S. 57 under the Act. The Statement of Objects and Reasons of the Act

shows that the purpose of bringing in the Act was to liberalise the grant of permits. S. 71(1) of the Act provides that while considering an

application for a Stage Carriage Permit the Regional Transport Authority shall have regard to the objects of the Act. S. 80(2), which is the

harbinger of liberalisation, provides that a Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind

made at any time under the Act. There is no provision under the Act like that of S.47(3) of the old Act and as such no limit for the grant of permits

can be fixed under the Act. There is, however, a provision under S. 71 (3) (a) of the Act under which a limit can be fixed for the grant of permits in

respect of the route which are within a town having population of more than five lakhs.

The Court further held as hereunder;

Relying on Rameshwar Prasad''s case the petitioners contend that it is in ""Public interest"" to limit the grant of permits on intra-region routes and

while fixing the limit various factors indicated by this Court in the said case are to be taken into consideration. We do not agree. The concept of

public interest, in relation to motor transport business, as propounded by this Court in Rameshwar Prasad''s case was only in the contest of the old

Act as amended by the ULP. Act. We are of the view that the Act having brought-in complete change in the policy of granting permits, the

observations of this Court in Rameshwar Prasad and Others Vs. State of Uttar Pradesh and Others, are not relevant in the present context. The

provisions of law for consideration before this Court in Hans Raj Kehar''s case were almost similar to S. 80 of the Act. We are, therefore bound

by the law laid down by the four Judges Bench of this Court in Hans Raj Kehar and Others Vs. State of Uttar Pradesh and Others, .

Mr. T. Chengalvarayan, learned senior counsel appearing for the respondent herein, while adopting the submissions made by Mr. V.T.

Gopalan, also submitted when there is no statutory bar in the matter of grant of permits in excess of the number fixed under the new Act, the Court

should adopt a view which would subserve the interests of the travelling public and if it is found that there is no bar for granting more than one

permit, both the grants can be sustained unless either of the grants is so hopelessly bad as to be against public interest. Learned senior counsel also

laid stress on the facts that both the partner have been running all along and that no prejudice would be caused to any one by confirming the grants

of both the Regional Transport Authority and the State Transport Appellate Tribunal in the case.

Mr. M. Palani, learned standing counsel for State Transport Undertaking, though not really a party to the present case, making his general

submissions, stated that any revision filed under the provisions of S. 64-A of the old Act read with S. 115 of the CPC and ponding on the date of

the commencement of the new Act, should be considered and disposed of only in the right of the provisions of the old Act and such (sic) the

positive and inevitable consequence flowing from Sub-s. (3) of S. 89 of the new Act. In support thereof, Learned Counsel relied upon an earlier

decision of mine in W.P. No. 1105 of 1988 (order dated 11-6-1991) (Tvl. Cheran Transport Corporation Ltd., v. K.M. Jayaraj), wherein it has

been held as follows:

Lastly, Learned Counsel for the Ist respondent submitted that having regard to the new Motor Vehicles Act, wherein anybody can be given a

permit, the grant in favour of the Ist respondent need not be quashed, I am unable to agree with this submission either My attention has not been

drawn to any provision in the Motor Vehicles Act, which would say that either the grant made under the old Motor Vehicles Act, has stood

validated under any of the provisions of the new Act or that the proceedings pending before this Court stood abated on the coming into force of

the New Motor Vehicles Act. That being the position, the proceedings initiated on the file of this Court should see its proper conclusion.

Therefore, a decision on merits, is inevitable

In Review Application No.8 of 1993 and W.P. No. 10091 of 1993, a Division Bench of this Court had occasion to consider the application

of the principle of permitting both to run and also the applicability of the new Act, to a matter pending under the old Act. By order dated

28.7.1993, the Division Bench held on the applicability of the new Act to the matters pending under the old Act as follows:

Even if W.P. No. 3830 of 1992 is to be considered tie hors the provisions of Tamil Nadu Act 41 of 1992, the order of the Tribunal is wholly

unsustainable. The tribunal is clearly in error in applying the provisions of the new Motor Vehicles Act of 1988. S. 89(3) of the said Act expressly

provides that every appeal pending at the commencement of the Act shall be continued to be proceeded with and disposed of as if the Act had not

been pushed. Hence, the Tribunal was bound to dispose of the appeal pending before it which was filed under the old Act of 1939, as if the new

Act of 1988 had not been passed. The tribunal erred acting upon the joint representation of counsel on both sides that the new Act would apply

and orders could be passed under the new Act with reference to the application of the principle of permitting both parties to run, the Division

Bench held as hereunder:

Our attention is drawn by Learned Counsel for the first respondent to the judgment of the Supreme Court in S.V. Sivaswami Servai Vs. Hafez

Motor Transport (Firm) and others,, , in which the Court held that orders should not be passed by Courts permitting both parties to ply their buses

on the basis of the agreements arrived at between the parties. The Court pointed out that the question of grant of permit has to be decided

primarily by the Regional Transport Authority having regard to the interests of the general public and other prescribed relevant factors and it is not

proper to permit both parties to the proceedings to ply their buses during the pendency of the proceedings on the basis of consent of parties. The

ruling of the Supreme Court will apply to the present case also and makes the order of the Tribunal unsustainable, Even if the provisions of Tamil

Nadu Act 41 of 1992 are not invoked by the first respondent herein.

In Writ Appeal Nos. 221 and 222 of 1993 (T.P.K. Thilagavathi v. R.T.A. Periyar District at Erode and others), a Division Bench of this Court

by judgment dated 25-2-1993 applied the ratio of the decision in S.V. Sivaswami Servai Vs. Hafez Motor Transport (Firm) and others,, and held

that the grant of any permit in excess of the limit fixed under S. 47(3) of the old Act was not permissible without first making a fresh determination

and increasing the number, if necessary, and therefore, unless the grant of a permit to both the rival claimants would be within the limit fixed by the

Regional Transport Authority at the relevant time, there is no scope for permitting both parties to run. The Division Bench in this judgment was

affirming my order in W.M.P. Nos. 28494 of 1992 and 25106 of 1992, approving the view taken by me in that case that the State Transport

Appellate Tribunal committed no error in that case in permitting grant of permits in favour of both the parties, in excess of the limit fixed and that

too, on the basis of consent memos filed by the parties before the Tribunal.

In Ram Krishna Verma and Others Vs. State of U.P. and Others, the Apex Court had occasion to consider the impact of the provisions of the

new Act on the draft schemes and approved schemes made under the Act. In those cases also, after the new Act came into force, the respondents

before the Apex Court applied for and were granted permits of routes resulting in overlapping performance on nationalised routes. This was

questioned and the proceedings were pursued before the Supreme Court. Their Lordships of the Supreme Court ultimately disapproved of the

practice in the following manner:

It is true as contended by Mithilesh Garg, Vs. Union of India and others etc. etc., , this Court held that the liberal policy of grant of permits under

S. 80 of the Act is directed to eliminate corruption and favoritism in the process of granting permits, eliminate monopoly of few persons and

making operation on a particular route economically viable and encourage healthy competition to bring about efficiency in the trade. But the free

ply is confined to grant of permits under Chapter V of the Act. By operation of S. 98 of the Act, Chapter VI overrides Chapter V and other law

and shall have effect notwithstanding anything inconsistent therewith contained in Chapter V or any other law for the lime being in force or any

instrument having effect by virtue of such law. The result is that even under the Act the existing scheme under the repeated Act or made under

Chapter VI of the Act shall have overriding effect on Chapter V notwithstanding any right given to private operators in Chapter V of the Act. No

Corridor protection to private operators is permissible.

In an unreported judgment, a Division Bench of this Court in W.A. Nos. 1011 to 1013 of 1991, 1111 of 1993 and W.P. No. 10499 of 1993

(judgment dated 9.11.1993), had occasion to deal with a situation similar to the one before me in this case regarding the confirmation of both the

grants after the coming into force of the new Act. That was a decision relating to a batch of matters brought before the Division Bench and as

could be seen from the common facts narrated in those cases, the Regional Transport Authority invited applications for the grant of stage carriage

permit on the route concerned therein, in the year 1982 and about 14 applicants staked their claim. The Regional Transport Authority appears to

have granted a permit in favour of one of the applicants alone while rejecting others as well as that of a State Transport undertaking. The

unsuccessful applicants pursued the matter before the Tribunal. When the matter was pending before the Tribunal it appears that three unsuccessful

private applicants who preferred appeals before the Tribunal and the grantee of the Regional Transport Authority filed a joint memo on the basis of

which the State Transport Appellate Authority allowed all the appeals and granted permits to all the three appellants while at the same time

confirming the one granted by the Regional Transport Authority in favour of Us grantee. It is at this stage, the Writ Petitions have been filed before

the Court by the State Transport undertaking challenging the proceedings of the authorities below. The State Transport undertaking was not

successful before the learned single judge and hence the matter was pursued before the Division Bench. That was also a case where the draft

scheme was in force and operation and the grant of permit had the effect of overlapping performance. The learned judges of the Division Bench,

after adverting to the existence of the draft scheme, which provided for exclusion, took the view, applying the ratio of the decision in Adarsh

Travels Bus Service and Another Vs. State of U.P. and Others, , that the private operators could not be allowed permits having an impact on a

portion of the route proposed for nationalisation. The permits granted in favour of the appellants before the Tribunal by virtue of the joint

memorandum of compromise entered into between the private operators, were held to be read in law. The Division Bench also took into account

the point urged based on the provisions of the Tamil Nadu Motor Vehicles (Special Provisions) Act 1992 (Tamil Nadu Act 41 of 1992) and the

validation provisions contained therein and held that the permits granted by the Tribunal in the circumstances noticed supra cannot be held to have

been validated.

The principles emanating from the above decisions, in my view, are as follows:

1) An appeal or revision filed under the provisions of the Motor Vehicles Act, 1939 and pending on the date of the coming into force of the Motor

Vehicles Act, 1988, shall be continued and disposed of as if the New Act has not been passed:

2) Wherever a limit of the number of stage carriages has been fixed under S. 47 (3) of the old Act, the number cannot be multiplied or increased

by the Original Authority or other Appellate or Revisional Authorities or the Court exercising jurisdiction under Art. 226 or 227 of the Constitution

of India, by granting orders or permission to both parties to run either as in interim measure or by way of final relief; there is no question of fixation

of limit in the case of an inter-Stale or inter region routes;

3) The provisions of the New Act cannot he detailed into the provisions of the Old Act and the proceedings initiated and pending cannot be tested

on the touchstone of the provisions of the Act:

4) The application earlier filed cannot be directed to be considered or treated as one filed under New Act and permits ordered to be granted as a

matter of course or by consent of parties;

5) So far as grant or refusal to grant made under the old Act and a challenge to the same is pending, the Courts are obliged to consider on merits

and in accordance with law as to which of the two claimants is entitled to the permit and there is nothing in the new Act which has the effect of

validating both the grants of the original Authority and the appellate Authority;

6) No one can claim or be granted with any permit or variation or renewal, etc., which has the effect of overlapping performance on a portion of

the route proposed for nationalisation and,

7) Even the provisions of the Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992 (Tamil Nadu Act 41 of 1992), do not enable a new.

grant or renewal or variation, etc. on and after 30-6-1990 and the authorities concerned are obliged to give effect to the schemes (Draft and final)

in the matter of any claim for permit made under the old Act and pending or made under the New Act.

On a careful consideration of the ratio of the various decisions placed for my consideration and the emanating principles flowing therefrom set

out supra and the request made by Learned Counsel appearing on either side, I am unable to persuade myself to countenance the claim. As held

by the Apex Court in Civil Appeal No. 1547 of 1970 (G. Guruswami Reddiar, Panruti v. The South Arcot Dist. Co-operativeMotor Transport

Society & another (order dated 1-5-1984) (Supra) and in S.V. Sivaswami Servai Vs. Hafez Motor Transport (Firm) and others,, many of the

orders relied upon in support of the claim for permitting both the grantees to run, appear to have been passed both by this Court as also by the

Apex Court, without adverting to the relevant provisions or on an objective consideration but such orders merely carried certain directions virtually

making certain arrangements or recognizing such arrangements between the parties, relatable to the facts of each case and that the Apex Court has

held that such orders neither purported to lay down a binding rule nor constituted a binding precedent for according a legal recognition to the claim

made by either side. The sentiments expressed and the caution administered in S.V. Sivaswami Servai Vs. Hafez Motor Transport (Firm) and

others,, dissuade me from according approval to the claim made by both parties before me. The fact that the route in question is an inter-region

route alone docs not permit the dispensing with of the statutory consideration by this Court of any competing claim or the consideration of any

application already made and pending or to be made hereinafter, by the competent authorities, who are conferred under the provisions of the Act

the power to grant permit having regard to, and taking into account, the other relevant circumstances and restrictions in the form of any existing

draft or approved schemes having the force of law and having an over-riding effect on the provisions contained in Chapter V of the New Act.

Hence the request to confirm both the grants cannot be and is not complied with since this Court had no other option but to proceed with the

revision to adjudicate on the claim made and forming the subject matter of the revision, viz., as to which of the parties should and ought to have

been granted the permit by the authorities at the relevant point of time.

Learned Counsel appearing on either side have made separate submissions on the merits of the claim of their respective parties and the legality

and the propriety of the orders under challenge may now be taken up for consideration. So far as the Regional Transport Authority is concerned, it

has granted the permit in favour of the original revision petitioner, who was applicant No. 3 overriding the claim of the original respondent, who

was applicant No. 1. Both the applicants secured, at the time of consideration by the Regional Transport Authority, equal marks and the original

petitioner has been preferred to the original respondent merely on the ground that he is a bus-cum-lorry operator and has got a vehicle ready for

being put on the road and in the opinion of the Regional Transport Authority, he was best suited for efficient operation. On appeal, the Tribunal not

only thought fit to reduce the total marks of the original petitioner (RTA grantee) to nine taking into account the two subsequent grants in favour of

the original petitioner during the pendency of the appeal, but has also independently considered the inter-se merits in an objective manner, and

came to the conclusion that the claims of the original respondent herein are far superior and preferred the original respondent by assigning the

following reasons:

The passenger transport experience of the appellant is from 1972 onwards while the passenger transport experience of the respondent is only from

1976 onwards. The Learned Counsel for respondent referred to the lorry transport experience of the respondent from September, 1958 to 1-5-

1978. We have also to take into account the history Sheets of the parties. The history sheet of the appellant is clean but he history sheet of the

respondent is not clean. The respondent''s history sheet found at page No. 235 of the Regional Transport Authority''s file shows a warning in

August, 1982 for the non-exhibition of the fare-table and time-table and the non-adherence to the schedule of timings and certain other minor

violations, another warning on 11-4-1984 for the non-carrying of the permit and non-adherence to the schedule of timings and certain other minor

violations, a caution 2-8-1985 for stoppage of the vehicle from 31-10-1984 to 2-2-1985, another caution on 2-8-1985 for the non-exhibition of

the time-table and fare-list and for the non carrying of the records and the non-availability of tax token and warning on 27-3-1986 for the non-

exhibition of the route map and the non-exhibit ion of a legible time-table and the non-carrying of the records. The certified copy of the history

sheet of the respondent filed by the appellant with J.A. No. 565/86 shows a caution administered to the respondent by the Regional Transport

Authority on 7-9-1987 for the non-carrying of the permit, and for plying on and unauthorised route and a warning on 8-4-1988 for the non-

carrying of the permit, the non-maintenance of the trip sheet and for plying on an unauthorised route. The history sheet of the appellant is clean.

Even though the respondent is entitled to count his lorry experience also which was from September, 1958 to 1-5-1978, still it is seen that the

history sheet of the respondent is tainted. In particular, the respondent was guilty of non-performance from 31.10.1984 to 2.2.1985 and was guilty

of plying on unauthorised route and non-adherence to the schedule of timings which are serious violations. Hence I consider that the longer

transport experience of the respondent cannot help him in view of his tainted history sheet which shows the above mentioned violations which are

against public interest. In view of this, the appellant who has a clean history sheet has to be preferred though his experience is only from 1972

when we consider the cumulative effect of the experience and history sheets of the parties.

The appellant has a Sector knowledge of 16 k.m. on the route under appeal while the respondent has no Sector knowledge at all. The Regional

Transport Authority has, however, observed in his order that the appellant''s sector knowledge of 16 k.m. is meagre. But the respondent has no

sector knowledge at all. The Learned Counsel for the respondent urged that the Regional Transport Authority has not stated in his order that the

route is one which has operational difficulties so as to render sector knowledge a significant factor. But it is also to be noted that the Regional

Transport Authority has not observed that the route is such that sector knowledge is unnecessary at all. I consider that the appellant who has at

least some sector knowledge on the route is preferable to the respondent who has no sector knowledge at all.

Apart from arguing that out of the two subsequent grants one grant has been set aside, Learned Counsel for the petitioner also contended that

the Tribunal should not have taken into account the subsequent grants during the pendency of the appeal to reduce the marks secured by the

petitioner, and in support of such a contention, reliance has been placed on a Division Bench Judgment of this Court in B.M.S. (Pte.) Ltd. Vs.

State Transport Appellate Tribunal and Others, . In my view, the ratio of the said decision of the Division Bench has no application whatever to the

facts on hand. That decision related to the claims of the respective applicants based on the possession of facilities on the date of hearing of the

Regional Transport Authority and not related to the taking into account of the subsequent events and developments, in a case relevant to the point

in issue. In fact, the decision of S. Mohan, J., as the learned Judge then was, rendered on 15-7-1976 in C.R.P. No. 1559 of 1976 (P.

Arunachalam v. Md. Ibrahim), which is directly in point, has categorically held in almost similar circumstances, that the Tribunal could not be held

to have committed any error of law or jurisdiction in taking into account such relevant subsequent developments relating to the securing of

additional grants. In my view, no authority is also needed for the proposition that in appropriate cases the court shall have regard to events as they

present themselves at the time of hearing of the proceedings before it, to make the adjudication of the right claimed just and meaningful and also to

render such adjudication legally and factually to be in accordance with the current realities. Even assuming that mark-wise the original petitioner

need not be deducted with (sic) any mark and treated and considered on the basis that he also secured ten marks as the original respondent, no

exception could be taken to the order of the Tribunal..

22-A. The Tribunal, in my view, has rightly taken into account a very essential aspect, viz., sector knowledge of 16 k.m. in respect of the route

under consideration, the longer experience of the original respondent from 1972 as a stage carriage operator as against such experience of the

original petitioner from only 1976 onwards (his earlier experience from 1958 being only as a lorry operator) and the clean history-sheet maintained

throughout by the original respondent and thus, the Tribunal has rightly taken into account the preferential points relevant in the matter of selection.

I am of the view that no exception could be taken to the well-considered findings and reasonings of the Tribunal. The reasons assigned by the

Regional Transport Authority to choose the original petitioner in preference to the original respondent, to say the least, cannot have the approval of

this Court. The reasons assigned appear to be not only perverse, but the Regional Transport Authority, in my view, has omitted to give due effect

to valid and relevant consideration, demonstrating thereby a total non-application of mind. The Tribunal, as the ultimate fact-finding authority is

entitle to draw its own conclusions on the facts presented on record and in my view, the reversal of the grant made by the Tribunal was not only

justified but well deserved and necessitated The conclusions arrived at by the Tribunal for convincing and cogent reasons, which are quite in

accordance with law, do not call for any interference at the hands of this Court exercising revisional jurisdiction under S. 64-B of the Motor

Vehicles Act read with S. 115 C.P. Code, warranting interference with the order of the Tribunal. Consequently, the revision f;;ils and shall stand

dismissed. No costs.

Before parting with the case, I place on record the valuable service rendered by Mr. V.T. Gopalan, learned Senior Central Government

Standing Counsel, at the request of the Court and also the assistance rendered by Mr. M. Palani, Standing Counsel, for a State Transport

undertaking by placing all relevant materials to enable a thorough consideration of the matter.