Zamindara Motor Transport Cooperative Society Ltd. vs State Transport Appellate Tribunal and Others

A.K. Mathur, J.—Both these writ petitions involve common questions of law and facts, therefore, they are disposed of by this common order.

For the convenient disposal of both these writ petitions, the facts given in the case of Zamindara Motor Transport Cooperative Society Ltd. v. State Transport Appellate Tribunal, Rajasthan, Jaipur and Ors. (S.B. Civil Writ Petition No. 927 of 1993) are taken into consideration.

The petitioner by this writ petition has prayed that by a suitable writ, order of direction the order of the State Transport Appellate Tribunal, Rajasthan, Jaipur dated 2.2.1993 whereby the permit granted in favour of the petitioner on Sadhuwali to Ferozpur (Subsequently) extended from Sadhuwali to Ganganagar) has been cancelled may be quashed and set aside and consequently grant in favour of the R.S.R.T.C. be set aside.

The petitioner is a Society registered under the Rajasthan Cooperative Societies Act, 1965. The petitioner is holding stage carriage permits on the regional and inter-Statal routes and is, thus, involved in the trade of transport. Ganganagar to Ferozpur via Sadhuwali is an inter-Statal route. The portion of the said route from Ganganagar to Sadhuwali (Rajasthan Border) which is at a distance of 7.6 Kms. lies in the State of Rajasthan and the remaining portion lies in the State of Punjab. In pursuance to a reciprocal transport agreement at the relevant time it was agreed between the 2 said States that daily 4 services would be provided from the Rajasthan side and four non-temporary stage carriage permits were allotted to the State of Rajasthan. The Regional Transport Authority, Bikaner (referred to hereinafter as the R.T.A.'') invited applications for grant of the stage carriage 4 permits which were considered and disposed of by its order dated 15.4.1981 whereby all the 4 permits were sanctioned in favour of respondent No. 3 i.e. Rajasthan State Road Transport Corporation (referred to hereinafter as ''the Corporation'').

The petitioner also submitted 4 separate application for grant of 4 non-temporary stage carriage permits on the said route. Therefore, the petitioner preferred 4 appeals against the said grant made by the R.T.A. in favour of the Corporation before the State Transport Appellate Tribunal, Rajasthan, Jaipur (referred to hereinafter as ''the Tribunal"). The Tribunal accepted all the 4 appeals so preferred by the petitioner and the order of the R.T.A. dated 15.4.1981 was set aside and the case was remanded back to the R.T.A. with the direction that the R.T.A. would compare the merits and de-merits of the appellants and the Corporation inter-se and then determine the claim of the petitioner and if the claim of both the claimants found equal then preference should be given to the Corporation as required by Section 47(1H) of the Motor Vehicles Act, 1939 (referred to hereinafter as the Act of 1939''). On remand the case was considered by the R.T.A. again and the R.T.A. by the order dated 9.2.1987 decided to grant 2 stage carriage permits in favour of the petitioner and the other 2 permits in favour of the Corporation. It is alleged that the petitioner availed the sanction of 2 permits and started plying the buses on the said route. Meanwhile, the Corporation prepared a draft scheme in respect of Ganganagar to Sadhuwali and Published the same in the Rajasthan Gazette dated 25.7.1986. Since the said scheme was pending on 9.2.1987, hence, the R.T.A. granted the said permits from Sadhuwali (Rajasthan Border) to Ferozpur after curtailing the draft scheme portion i.e. Ganganagar to Sadhuwali. However, aggrieved against the order dated 9.2.1987 whereby the petitioner''s 2 applications were rejected the petitioner preferred 2 appeals before the Tribunal. Likewise, the Corporation who has also applied for 4 permits and was granted only 2 permits and its 2 applications were rejected also preferred 2 appeals before the Tribunal. As such all the 4 appeals were heard together and disposed of by the common order dated 2.2.1993 passed by the Tribunal and the Tribunal accepted the 2 appeals filed by the Corporation and granted all the 4 permits on this route to the Corporation and rejected both the appeals filled by the petitioner. Aggrieved against this order dated 2.2.1993 the petitioner has filed these two writ petitions.

A caveat was also filed by the Corporation which was registered in the of office on 9.2.1993. But the case was listed on 11.2.1993 before the Court and the same was admitted and a stay order was also passed. Mr. Munshi, learned Counsel for the applicant caveator respondent submitted that the order in question may be recalled as he has already filed a caveat under Rule 159 of the Rajasthan High Court Rules. Therefore, this case should not have been admitted without hearing him. He has also submitted that he also sent a registered notice to the petitioner society and also filed a receipt thereof. I need not to go into this question as I thought it proper to hear the main writ petitions itself instead of recalling the order and hearing the parties afresh. However, it is expected that the Registry should maintain a separate register for entering the caveat and as and when the caveates are received it should be entered therein so that when the cases are listed in the court it can be brought to the notice that some body has filed a caveat.

Mr. Maheshwari, learned Counsel for the petitioner has urged before me that the Tribunal while disposing of the earlier appeals of the petitioner by the order dated 15.4.1981 has specifically directed while remanding the case back to the R.T.A. that it shall consider the matter in the light of the provisions of Section 47(1H) of the Act of 1939 and if everything being equal then preference should be given to the Corporation. Learned Counsel submitted that finding has become final and therefore it became res judicata. But neither the R.T.A. has given due weightage to that direction nor the Tribunal while deciding the matter has properly considered the matter. Learned Counsel further submitted that the Tribunal while considering the order of the R.T.A. has committed an error. In setting aside the permits granted in favour of the petitioner as the corporation has not produced any fresh material except the material which was in existence at that time. It is submitted that an affidavit of the R.K.S. Jodha, the then Divisional Manager, R.S.R.T.C., Bikaner, which was filed before the R.T.A. supporting the averments in the application was not considered by the R.T.A. However, a typed copy of that affidavit was filed before the Tribunal also but the Tribunal has also declined to consider the same. Learned Counsel has further invited my attention to letter Annex. 9 dated 1.10.1992 to show that some of the buses are not having conductors. Learned Counsel submitted that the Corporation has failed to satisfy the conditions given in Section 47(1H) of the Act of 1939 and had made only a bald statement that they have a fleet of buses, workshop facilities etc. but that is not sufficient to meet the requirements of Section 47(1H) of the Act of 1939. Learned Counsel submitted that the Tribunal is bound by the observations made by it earlier in its order and should have considered the matter in the light of the direction given by the earlier order of the Tribunal as the Tribunal is bound by its own order.

As against this, Mr. Raj Narayan Munshi, learned Counsel for the applicant Corporation has submitted that Section 477(1H) of the Act of 1939 clearly lays down that in case the Corporation applies then the Corporation should be preferred as against the private operators. It is also submitted that the Corporation has enough fleet of vehicles and without disturbing those vehicle and without detriment to working of the Corporation they can operate on this route. Mr. Munshi, learned Counsel has also invited my attention to a Rajasthan amendment brought in Section 47 which reads as under:

Provided further that other conditions being equal, an application for a stage carriage permit by a State Transport undertaking, as defined in Section 68A, shall be given preference over applications from individual owners and co-operative societies.

Therefore, the learned Counsel submitted that in this view of the matter the Tribunal has rightly approached the matter and this case does not call for any interference.

I have heard both the learned Counsel at length and perused the record.

According to Section 47(1H) of the Act of 1939 the Corporation has been given preference as against the other operators, if the Corporation can operate on the route without detriment to its responsibility for providing efficient and adequate road transport service in any notified area or notified route. Therefore, a bare reading of Section 47(1H) clearly shows the intention of the legislature was to give preference to the Corporation over the private operators subject to the condition that efficiency of the Corporation will not be in any manner minimised or disturbed. In the present case the R.T.A. as well as the Tribunal has given a finding that the Corporation has a sufficient fleet of buses and can operate without disturbing their other routes. When the Corporation is ready and willing to operate on all the 4 permits without disturbing the other.routes than in normal course the Corporation is entitled to the permits. The Tribunal has examined the matter factually and has found that the Corporation can operate on all the 4 permits, therefore, it has set aside the grant of 2 permits in favour of the petitioner.

Both the learned Counsel as well as the R.T.A. and the Tribunal have relied upon the basic decision given by the Hon''ble Supreme Court in the case of Sher Singh Vs. Union of India (UOI) and Others, This case was relied upon by the Tribunal while passing the earlier order and the same was also relied upon by the Tribunal in the order of 1993 also. It was observed in case of Sher Singh as under:

When an application for a stage carriage permit is being processed as required by Section 47, the application of the Undertaking for an inter-State route shall be examined as application of any other operator. Their merits and demerits must be ascertained keeping in view the requirements of (a) to (f) of Section 477(1) and after comparing the merits and demerits of both, not with the yardstick of mathematical accuracy, but other things being equal, the application of the Undertaking will have preference over others. Qualitative and quantitative comparison in broad features of passenger transport facility such as fleet, facilities of travelling public and other relevant consideration may be undertaken and after balancing these factors other things beings equal, the application of the Undertaking shall be given preference over other applicants. There is no question of eliminating private operators merely because the Undertaking applies for a stage carriage permit under Chapter IV. That situation is catered to under Chapter IV-A. In an application under Chapter IV, Corporation has to enter the arena like any other applicant, face the competition and come-up to the level of other private operators intending to obtain stage carriage permits and then in respect of the route in question claim preference.

Therefore, what one has to see the qualitative and quantitative comparison on broad features and it cannot be compared with mathematical accuracy. Therefore, when the matter came up before the Tribunal the Tribunal examined the matter and on examination of the matter if found that the Corporation has a plus factor of fleet of vehicles, workshop, sector experience and transport experience and all these factors taken together the Tribunal found that the Corporation is to be preferred then the private operators. These are all relevant factors, which were taken into consideration for giving preference to the Corporation and such factors are relevant and they have been rightly been taken into consideration by the Tribunal. Subsequently also, the Hon''ble Supreme Court in the case of Kan Singh Vs. State Transport Appellate Tribunal and Others, it has been observed that while granting a permit on an inter-State route the R.T.A. has to reach.

The satisfaction that the State Road Transport Corporation would be able to operate the inter-State route for which the permit is sought without detriment to the efficiency and adequacy of the nationalised services it is already running in the State is a matter on which the R.T.A. has to reach a subjective satisfaction. Therefore, the Tribunal after considering the matter and taking into consideration the factors like fleet of vehicles, workshop facilities, sector experience and transport experience on the route has come to the conclusion that the Corporation will be better suited to run on all the 4 permits on this inter-State route then such satisfaction cannot be interfered with by this Court in its extraordinary jurisdiction,

Mr. Maheshwari, learned Counsel for the petitioner has also invited my attention to the observations of the R.T.A. while granting 2 permits to the petitioner Society. The R.T.A. while granting 2 permits to the petitioner Society has only said that after considering the comparative merits of the parties it is found that the petitioner Society has also sector experience as well as the transport experience. These two factors were found to be in favour of the petitioner for grant of the permits but at the same time the R.T.A. has granted 2 permits to the respondent Corporation also and it has also found that the respondent Corporation has a fleet of vehicles and workshop facilities but did omit to mention the other two factors, namely, sector experience and transport experience. When both the parties i.e. the petitioner Society and the respondent Corporation has a fleet of vehicles, workshop facilities, sector and transport experience that means that both are equally poised in merit, in that case the grant of permit to the Corporation is the mandate of law. In the present case, I am satisfied that the Tribunal after considering over the comparative merits of both the parties has rightly granted all the 4 permits on the route in favour of the Corporation. Mr. Munshi, learned Counsel appearing for the Corporation has also invited my attention to the affidavit of Shri R.K.S. Jodha, which was filed before the R.T.A. though it was not considered by the R.T.A. As the proper copy was not filed before the Tribunal, therefore, it was not considered by the Tribunal. But the copy of the affidavit which has been filed before me by Mr. Munshi clearly shows that it was contended before the R.T.A. that at present 20 vehicles were lying with the R.S.R.T.C. and they are ready to ply on this route. It is also mentioned that no scheme of nationalisation will be affected by providing 4 services. It is also said that no existing vehicle will be withdrawn from nationalised routes on account of availing these permits.

When the material was already there before the R.T.A. and the R.T.A. should have considered this affidavit, which was in addition to the material which was already there on the record, which was filed before the R.T.A. when the R.T.A. was considering the matter on remand but it seems that the R.T.A. has overlooked this affidavit and so also the Tribunal. When the Tribunal was hearing the appeal they should have called for the record of the R.T.A. for proper appreciation of the matter. In any way, be that, as it may after going through the record and hearing both the learned Counsel I am of the opinion that the order of the Tribunal does not suffer from any illegality so as to warrant interference by this Court. More-so in view of the Rajasthan amendment in Section 47 the Corporation has to be preferred if both the parties are equally poised.

Mr. Maheshwari, learned Counsel for the petitioner has also submitted that there are some lack of conductors with the Corporation, therefore, the Corporation will not be able to provide efficient services and has made a reference to letter but that sole letter cannot tilt the balance in favour of the Corporation. Mr. Munshi, learned Counsel for the respondent Corporation submitted that this letter was of the year 1983 and we have to see the situation obtaining at the time of initial grant of the permits. He has also tried to offer an explanation that in some of the buses operating in the night time on those it was thought proper not to provide any conductors and for the same permission has been sought from the Government. But this stray fact cannot detract from the fact that both are equally placed than the Corporation has to be preferred and in the present situation I am satisfied that the Corporation has a better fleet as well as workshop facilities, sector experience and transport experience. Keeping in view all these factors, the Corporation has to be preferred as against the petitioner.

Thus, in these circumstances, it don''t find any merit in both these writ petitions and the same are dismissed.