N. Reni vs R.T.A. and Others

K. Sukumaran, J.—This writ petition raises a question under the Motor Vehicles Act. 1939. The petitioner and the 4th respondent were applicants for a stage carriage permit on the route Pazhayannur-Govindapuram. While the petitioner filed the application within time, the 4th respondent submitted it, beyond. Ext P2 is the Gazette publication of the applications. In the case of the 4th respondent the publication itself indicated that his application was late by 8 days.

On. 26-2-1985 the Regional Transport Authority (RTA, for short) considered -he applications It took a decision to reject all the applications and for re-notification The reasons mentioned were: that the applicant No.2 did not press his claim, that no one had ready vehicles, and that applicant No. 3 had not applied in time.

This decision of the R T A. was challenged in appeal before the State Transport Appellate Tribunal (S. T. A. T, for short) by both the petitioner and the 4th respondent. Those appeals were allowed by S. T. A. T. by its judgment Ext. P4 dated 22--6-1985. The petitioner''s appeal was allowed. The S.T.A. T held that despite the absence of particulars of the vehicles she proposed to put on the road, her application deserved consideration as she had stated that she was prepared to make available a later model vehicle It also took note of the fact that she was a medium operator and was having necessary operational facilities and expertise. Her appeal was allowed with the observations that her offer for putting a later model vehicle on road should have been accepted, and that her application should have been considered on merits.

The petitioner is happy about the order to the extent that it has allowed her appeal. There is, however, a anag as far as she is concerned The appeal of the 4th respondent was also allowed. That means an entry into the arena of one more competitor. If that could be warded off, the petitioner could be happier Whether that is legally feasible is a matter which has to be dealt with in this original petition, in which the petitioner challenges that portion of Ext. P4 judgment by which the 4th respondent''s appeal was also allowed and his application has also been directed to be considered.

The reasons for allowing the 4th respondent''s appeal are indicated in paragraph 6 of the judgment. They are (1) The R T.A. had entertained the application and sent it for publication despite its being a belated one. According to the S.T.A.T., this was indicative of condoning of the delay, if any, in filing the application. According to the S. T. A. T., the R. T A. had the power to do so and (2) In the opinion of the S. T. A. T. even when the R T. A. not inclined to rondone the delay, it could treat the application as a suo motu application which could be considered independently. That had not been done.

I am of the view that these assumptions are not justified.

As noted earlier, there is a binding statutory obligation to publish all the applications u/s 57(3) of the Motor Vehicles Act. The publication of an application is a statutory duty cast on the authority The compliance with that statutory duty would not obliterate a defect in the application, if one exists. A mere publication of the application does not postulate a decision of the R. T. A. that the delay had been condoned and that the application had been entertained as one legally maintainable. That there was no intention whatever on the part of the statutory authority to treat it as an application within the time, is clear from Ext. P2, where the 4th respondent''s application had been rejected on the ground of delay. The S. T. A T. was not, therefore, justified in holding that the R. T. A. had omitted to dismiss the application of the 4th respondent as a belated one. Express words employed in Ext. P2 are clearly to the effect that the application was rejected solely on the ground of delay.

Counsel for the 4th respondent submitted that notwithstanding the fact that his application was submitted beyond the prescribed time, it was open to the authorities to consider it as a suo motu application. and to deal with it along with other applications submitted pursuant to the notification In particular, reliance was placed on the judgments of this Court, of a Division Bench in W. A. No. 538 of 1976 and of a learned single Judge in O. P. No. 3506 of 1981 P. This question has not been tackled at all in W. A. No. 538/1976. That judgment has only stated that there is no in elastic proposition that in no cricumstances the two applications, a suo motu application and the one filed u/s 57 (2) of the Act, could be clubbed together at all. This case is nut directly concerned with such a case of clubbing.

O P. No. 3506 of 1981 rendered by Chandrasekhara Menon J. had surveyed the case law on an analogous issue It is unnecessary for the purpose of the present case to consider whether that judgment requires re-consideration. If the factual situation was so similar that there was no alternative but to apply the ratio of that decision, judicial discipline would have obliged me to refer this case for consideration by a Larger Bench. I, however, find that there is substantial difference between the two cases. Paragraph 2 of the Judgment in O. P. No: 3506 of 1981 clearly demonstrates that that was a case where an application within the time and the one which was belated, were both considered together by the R. T A. In that case the objection raised was that both the applications could not be considered simultaneously. The R.T.A. in that case considered both the applications together despite objections. The S.T.A.T. also approved of such a course. In the present case, however, as noted earlier, the R.T.A. had not considered the two applications together. On the contrary it had, by a specific statement, rejected the application of the 4th respondent as a belated one. Going by the general observations, it might have been open to the R.T.A. to consider it as a suo motu application. This was not done. A compulsion to club two such applications cannot be imposed on the R. T. A., by any one, particularly one who had not taken care to submit his application within the stipulated time.

It cannot be posited that a stipulation of the time for making the application mentioned in the Statute, is an empty formality and that nobody need take serious note of it. If applications are to be considered pursuant to Section 57 (2) they are to be within time. Due importance has to be given to the statutory provisions prescribing limit for specified acts or actions Otherwise, it will be doing great violence to the will of the Parliament. It will be tantamount to treating a belated application, statutorily condemned in that behalf, on the same par with an application filed well within the time.

Counsel for the 4th respondent submitted that this approach would compel the R. T. A. to grant permits even when the sole application within the time is one unworthy of grant of permit. This apprehension is unfounded. It is not as though in a situation where there is only one valid application filed within the time, the R. T. A. is left with no alternative than to grant the permit. Public interest is the dominant criterion for the grant of a permit. If the one who had submitted his application within time is found supremely unfit for operating the service, the R. T. A. could justifiably reject the application. That right and duty is cast on the R. T. A. to be exercised and performed depending upon the factual situation of each case.

In the present case, as noted earlier, the R. T. A. had not chosen to club the two applications together, treating the one as an exercise of a suo motu consideration.

The assumptions on the basis of which S. T. A. T, had interfered with the decision of the R.T.A. as noted earlier, are non-existent; and are factually and legally unsustainable. In that view of the matter, I quash Ext. P4 to the extent it directs the application of the 4th respondent to be considered along with the application of the petitioner, when the matter goes back to the 1st respondent pursuant to the common judgment Ext. P4 Ext. P4 is otherwise sustained. The O. P. is allowed to the extent indicated above. There will be no order as to costs.