Sharat Chand vs The Regional Transport Authority

Sobhag Mal Jain, J.—This writ pethion is directed against the order/resolution of the RTA dated the 12th September 1985, dismissing the petitioner''s application for the grant of a temporary stage carriage permit on the Bhilwara-Shahpura route.

On the Bhilwara-Shahpura via Sanganer, Bada Muha. Dhikola, Doongri route, originally the scope fixed was of three permits to perform three return services. The RTA revised and increased the scope to five permit of the return services.The increase was upheld in revision by the State Transport Appellate Tribunal, by its order dated 6th June, 1979. Against the original scope of three non-temporary stage carriage permits, one permit each was granted to: (1) Lal Chand, (2) Gyan Chand, and (3) Sardar Gyan Singh. The permit in favour of Sardar Gyan Singh did not however, survive.

A draft scheme u/s 68C of the Motor Vehicles Act, 1939 (here in after referred to as ''the Act'') in relation to the Bhilwara-Deoli route via Mandal Choraha, Baneda, Doongri and Shahpura was published in the Rajasthan Rajpatra. The route covered by the scheme overlaps the Bhilwara-Shahpura route from Doongri to Shahpura, which is 13 kms.

Against the three vacancies, the RTA granted temporary permits to: (1) Ramesh Chand Chandmal, (2) Sharat Chand, the petitioner, and (3) Kamlesh Kumar Rajendra Kumar. The temporary permit granted to the petitioner was valid upto September 14, 1985. The petitioner, therefore, submitted further application for the grant of temporary permit on August 2, 1985. His application came up for consideration before the RTA on September 12, 1985. The RTA, by its resolution dated 12th September, 1985 rejected the petitioner''s application for the grant of temporary permit on the ground that applications for the grant of non-temporary stage carriage permits for Bhilwara-Shahpura route were then pending for consideration. Aggrieved by this order of the RTA, the petitioner has filed this writ petition in this Court.

Mr. R.N. Munshi, counsel for the petitioner, has contended that the applications for the grant of non-temporary permits on the route had merely been filed in the office of the RTA and the same could not be said to be pending within the meaning of Section 62(1) of the Act. Mr. Munshi has further submitted that the portion Bhilwara-Doongri only was the unaffected portion from the draft scheme published u/s 68C and this part of the route alone was open for non-temporary permits. The petitioner''s application for temporary permit was for the entire route Bhilwara-Shahpura and as such his application could not be dismissed on the ground that as applications for non-temporary stage carriage permits were pending, temporary permit could not be granted u/s 62(1) of the Act.

The question for consideration in this petition is, since when the application for the grant of a permit u/s 46 or Section 54 shall be deemed to be pending to attract the bar of the first proviso to Sub-section (1) of Section 62. Sub-section (1) of Section 62 with its two provisos is set out below:

Temporary permits--(1) A Regional Transport Authority may without following the procedure laid down in Section 57, grant permits, to be effective for a limited period not in any case to exceed four months, to authorise the use of a transport vehicle temporarily

(a) for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings, or

(b) for the purposes of a seasonal business, or

(c) to meet a particular temporary need, or

(d) pending decision on an application for the renewal of a permit, and may attach to any such permit any condition it thinks fit:

Provided that a temporary permit under this Section shall, in no case, be granted in respect of any route or area specified in an application for the grant of a new permit u/s 46 or Section 54 during the pendency of application:

Provided further that a temporary permit under this Section shall, in no case, be granted more than once in respect of any route or area specified in an application for the renewal of a permit during the pendency of such application for renewal

Sub-section (1) confers on the R.T.A. the power to grant temporary permits to meet temporary and special needs. The power to grant permit to meet the temporary need under clause (c) is circumscribed by the first proviso. The words "in no case" emphasise the absolute nature of the prohibition. To understand the true span of the expression "during the pendency of the application", it shall be necessary to have a look at Section 57 of the Act, which lays down the procedure for filing the application and granting permits. Sub-sections (1) to (5) of Section 57, which are relevant for our purpose are set out below:

Procedure in applying for and granting permits-(1) An application for contract carriage permit or a private carrier''s permit may be made at any time;

(2) An application for a stage carriage permit or a public carrier''s permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, or, if the Regional Transport Authority appoints dates for the receipt of such applications, on such dates;

(3) On receipt of an application for a stage carriage permit or a public carrier''s permit, the Regional Transport Authority shall make the application available for inspection at the office of the Authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date, nor being less than thirty days from such publication, on which, and the time and place at which, the application and any representations, received will be considered:

Provided that, if the grant of any permit in accordance with the application or with modifications would have the effect of increasing the number of vehicles operating in the region, or in any area or on any route within the region, under the class or permits to which the application relates, beyond the limit fixed in that behalf under subSection (3) of Section 47 or Sub-section (2) of Section 55, as the case may be, the Regional Transport Authority may summarily refuse the application without following procedure laid down in this Sub-section.

(4) No representation in connection with an application referred to in sub-s. (3) shall be considered by the Regional Transport Authority unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the person making such representation;

(5) When any representation such as is referred to in Sub-section (3) is made, the Regional Transport Authority shall dispose of the application at public hearing at which the applicant and the person making the representation shall have an opportunity of being heard either in person or by a duly authorised representatives.

A perusal of the above provisos reveal that the application for the grant of a permit has to pass the following stages, namely (1) On receipt of the application, which has to be made at least six weeks before the date the permit is to be effective the RTA makes the same available for inspection at its office and also publishes it in the prescribed manner; (2) The RTA announces the time Schedule for receipt of representations and for consideration and the application and the representations.The date for consideration so fixed shall not be less than 30 days from its publication; and (3) The application is disposed of by the RTA at public hearing where opportunity of being heard is given to the applicant & the persons making the representations. In this setting of s.57, the expression "during the pendency of the application" has to be construed. Mr. R.N. Munshi has cited the case of K. Prakasham Vs. Secretary, Regional Transport Authority and Another, of the Andhra Pradesh High Court, which has given a restricted meaning to the expression "pendency of the application to mean the period from the date of hearing to the actual date of grant of permit." The learned Single Judge of the said High Court has said:

The proximity of pendency of application is when R.T.A. is actually seized of the matter by hearing as contemplated u/s 57(5) of the Act. The vulnerable period is from the date of hearing by RTA to actual date of grant of permit.

Mr. Vyas, on the other hand, invited my attention to Sriram Vs. Regional Transport Authority, Jaipur and Others, and Shiv Bus Service v. R.T.A. RLW 1980 245. In Sri Ram v. R.T.A., Kan Singh, J. has said:

Section 62 came up for consideration before a Full Bench of this court Janta Transport Co-operative Society Ltd. and Another Vs. The Regional Transport Authority, Jaipur and Others, It was decided therein that the first proviso relates to clause (c) only, while the second proviso covers clause (d) alone. There is no question of the applicability of the second proviso to the present matter. Therefore even to meet a particular temporary need it will not be open to the Regional Transport Authority to grant temporary permit if an application for grant of a permit u/s 46 is pending at the material time.

In M/s Shiv Bus Service, S.K. Mal Lodha, J. after noticing the judgments of this Court has said:

It is thus, clear from the aforasid decisions that the Resolution of the R.T.A. to grant temporary permits on the route in regard to which applications for grant of non-temporary stage carriage permits were pending was without jurisdiction and when an order was passed patently without jurisdiction, then the bar of alternative remdey of revision would not stand in the way of granting relief to the petitioner in a petition under Articles 226 & 227 of the Constitution.

In Janta Transport Co-operative Society Ltd. and Another Vs. The Regional Transport Authority, Jaipur and Others, Dave, J. with whom Sarjoo Prasad, C.J. agreed observed as under:

The meaning and purpose of the first proviso is to direct the R.T.A. that if an application for a non-temporary permit u/s 46 or Section 54 of the Act is presented for any route or area, then it should be decided expeditiously, according to law, and so long as it remains pending, no temporary permit should be given under any circumstances to the applicant for non-temporary permit or to any other person in respect of the said route or area, in the name of, or under the guise of, meeting a particular temporary need under clause (c).

In Jaikishan v. R.T.A. RLW 1968 287, I.N. Modi, J observed:

While it is true that the existence of a permanent need will not preclude the Regional Transport Authority from issuing a temporary permit, if the necessary conditions laid down in Section 62 of the Act are found to be there, yet in case an application for grant of a non-temporary permit, has already been filed and the same is pending then, during the pendency of such an application the Regional Transport Authority will not be competent to issue a temporary permit under Clause (c) of Section 62 of the Act. Once the stage is reached when an application for grant of non-temporary permit is pending before the Regional Transport Authority, the jurisdiction of the Regional Transport Authority to then issue temporary permits is taken away.

The observations made by this court in the cases quoted above, particularly the observations of Dave, J. in J.T. Cooperative Society''s case that when an application for a non-temporay permit is presented, the same should be decided expeditiously and so long as it remains pending no temporary permit should be granted in respect of the said route makes it clear that the R.T.A. has no jurisdiction to grant a temporary permit under proviso to Section 62(1)(c) when the applications for grant of non-temporary stage carriage permits are pending on the route in question. This Court has not preferred a narrow construction to the expression''during the pendency of the application.'' When an application is presented, complete in all respects, and remains undecided it is said to be pending and the inter rallie period is considered as a period of pendency. It originates when it is presented and the moment it is decided it ceases to be pending. Even if a restricted meaning is given to the expression "during the pendency of the application" the pendency will begin when on receipt of the application the R.T.A. puts it for inspection and sends it for publication in the Rajpatra. The inviting of objections, filing of representations and the consideration of the applications and the objections by the R.T.A. are all steps taken during the pendency of the application. The meaning of the expression is clear and its span can neither be expanded nor curtailed.

Now, I come to the question whether applications for non-temporary permits were pending when the application for temporary permit filed by the petitioner came up for consideration before the R.T.A. Mr. R.R. Vyas, during the course of arguments, filed a copy of the Rajasthan Rajpatra dated 5th September, 1985. It contains a notification u/s 57 of the Act notifying the names of applicants and the routes for which the said applications were made. A perusal of this notification reveals that six applications had been filed in the R.T.A. for the Bhilwara-Shapura route. Serial Nos. 22 to 27 contain the particulars of the applications for this route. Significantly, the petitioner was also one of the applicants. The entries relevant to these applications are extracted below:

S. No. Name of the Name of the Date of applicant route application XX XX XX XX (22) Shri Ramesh Chandra Bhilwara to Shahpura Samdani s/o Ramjas via Sanganer Bada Samdani, Nadi Mahua, Dhikoli, Mohalla, Bhilwara Doongari 19-6-1985 (23) M/s Govind Ram � Bhagwan Das s/o Lal Chand, Bhandari-ka -Chowk, Bilwara 15-7-1985 (24) Shri Govind Ram s/o Bhilwara to Shahpura Lal Chand, resident via Sanganer Bada of Shahapura Mahua, Dhikoli, Doongari 31-7-1985 (25) Shri Kamlesh Kumar � Rajendra Kumar, Bhilwara 2-8-1985 (26) Shri Ram Chandra Chandmal, Bhilwara " 2-8-1985 (27) Shri Sharat Chandra Bhilwara to Shahpura Gokharu s/o Phool via Sanganer Bada Chand, Sevasadan Mahua, Dhikol Road, Bhilwara 2-8-1985 The application of the petitioner for temporary permit came up for consideration before the R.T.A. on September 12, 1985. One application by Ramesh Chand Samdaria for non-temporary permit on the route had been tiled as back as June 19, 1985; two other applications were filed in July and the remaining three including that of the petitioner were filed in August 1985. As seen above, all these applications were published in the Rajpatra dated September 5, 1985 and were scheduled to be considered by the RTA in its-meeting to be held on October 10, 1985. In such circumstances, I concul with the view of the RTA that applications for the grant of non-temporary permits were pending when the application of the petitioner for the grant of temporary permit came up for consideration before the RTA. The proviso to Section 62 is in absolute terms and the RTA was justified in not granting temporary permit to the petitioner on the ground that applications for non-temporary permit for the route were then pending.

As regards the argument of the Learned counsel for the petitioner that the route for the grant of non-temporary permit was open only from Bhilwara to Doongari whereas the petitioner''s application for temporary permit was for the entire route Bhilwara-Shahpura and as such his application could not be dimissed under the proviso to Section 62. Suffice it to say that the said proviso envisages the pendency of the application for the route. What is relevant is the route specified in the applications for the grant of non-temporary permits u/s 46. What ultimately would be the result of those applications is not a matter to be considered for the purposes of Section 62 (1) proviso. The applications which were filed and published in the Rajpatra were for the entire route Bhilwara-Shahpura and the inhibition of the proviso to Section 62 (1) was clearly attracted.

It is thus clear that applications for non-temporary permits were pending when the petitioner''s application for temporary permit for the route came to be considered by the RTA and the order of the RTA dismissing the petitioner''s application for the grant of a temporary permit was in accordance with the provisions of the first proviso to Section 62(1) of the Act.

The result is that there is no substance in this writ petition and the same is dismissed.