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PETITIONER: JAGANNATHAM & BROS.

       Vs.

RESPONDENT: SOWDAMBIGAI MOTORS SERVICE

DATE OF JUDGMENT: 08/05/1963

BENCH:

ACT: Motor     Vehicles-Application    for     stage     carriage permit--Regional  Transport Authority  granted  permit-Grant set  aside  by Transport Appellate Tribunal  without  giving reasons   for  preference-Vilidity  of  the  order-Duty   of Appellate Tribunal-Motor Vehicles Act, 1939 (IV of 1939).

HEADNOTE: The  appellant, as well as respondents 1 and 2  and  others, had  applied  for the grant of stage carriage  permit.   The Regional Transport Authority granted a permit to each of the two  respondents.   The appellant aggrieved  by  this  order preferred  an  appeal before the State  Transport  Appellate Tribunal.   The Appellate Tribunal held that  the  appellant should  be preferred to the Respondent No. 1.  Against  this order the respondent No. 1 preferred a writ petition  before the  High Court.  The High Court set aside the order of  the Appellate Tribunal on the ground that the Appellate Tribunal did  riot state the reason for preferring the  appellant  to the Respondent No. 1. Held that the High Court was justified in setting aside  the order  of the State Transport Appellate Tribunal.   In  fact the State Transport Appellate Tribunal did not determine the only  question which required to be determined and that  was why one operator should be preferred to another. Raman  &  Raman Ltd.v. The State of Madras  [1959]  Supp.  2 S.C.R. 227, referred to.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION  : Civil Appeal  No.  179  of 1963. Appeal  by special leave from the judgment and  order  dated October 23, 1962 of the Madras High Court in Writ Appeal No. 207 of 1962. B.   Sen,  J.  B.   Dadachanji, O. C.  Mathur  and  Ravinder Narain, for the appellant.  667 A.   V.  Viswanatha  Sastri  and  R.  Ganapathy  Iyer,   for respondent No. 1. A.   V. V. Nair and P. Ram Reddy, for respondent No. 2. 1963.  May 8. The judgment of the Court was delivered by MUDHOLKAR  J.-A  single judge of the Madras High  Court  set aside  the order of the State Transport Appellate  Tribunal, Madras,  allowing  the appellant company’s  appeal  granting them a permit to ply a bus on route No. 5 in Erode Town.  An appeal  preferred  against  his decision  by  the  appellant company under cl. 15 of the Letters Patent was dismissed  in

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limine.   Against  that decision the appellant has  come  up before this Court by special leave.  The Regional  Transport Authority, Coimbatore invited applications for the grant  of six permits for stage carriage buses for running Erode  Town service.   On  route  No. 5 two stage  carriage  buses  were sought to be introduced. The appellantas well as respondents 1  and 2 and some others, had applied for the grant  of  all the six permits, including two on route No. 5. The  Regional Transport  Authority at its meeting held on March  16,  1961 considered the applications, granted four permits out of six to  four existing operators and on route No. 5, which was  a new  route,  it  granted  a  permit  to  each  of  the   two respondents.    Aggrieved  by  this  order   the   appellant preferred  an  appeal before the State  Transport  Appellate Tribunal  which held that the appellant should be  proffered to the respondent No. 1. The Tribunal thus did not interfere with the order of the Regional Transport Authority in so far as the permit granted to the respondent No. 2 was  concerned but set aside its  order granting a permit to the respondent No.  1. Against this order the respondent No. 1 preferred  a writ petition 668 before the High Court.  That petition was heard by a  single judge of the High Court and, as already stated, the  learned judge  set aside the order of the Tribunal in so far as  the appellant  was concerned.  The ground on which  the  learned judge  set  aside  the order of the Tribunal  was  that  the Tribunal did not state why the appellant should be preferred to  the  respondent  No. 1 in the matter of  being  given  a permit.   The  learned judges who heard the  Letters  Patent Appeal preferred by the appellant observed, while dismissing the appeal:               "The first respondent had this advantage,  viz               : that he was given the permit by the Regional               Transport Authority.  Before that permit could               be set aside it was the duty of the  Appellate               Tribunal to have considered the superior merit               of   the  appellant.   In   considering   such               superior  merit, it was bound to consider  the               pros and cons of the experience alleged to  be               possessed  by the first respondent as  against               the  claim of the appellant who puts his  case               only  as a new entrant.  The Tribunal  appears               to  have  taken  as a rule  of  law  that  new               entrants  should  invariably be  preferred  as               that  would give them an enthusiasm  and  also               surcharge   the  atmosphere  with  a   healthy               competition.  But it forgot that in all  these               matters,   the  paramount  question,   to   be               considered  was  the interest of  the  public,               and,  in  considering the question, it  had  a               duty  to evaluate the rival claims of the  two               operators.", Thus  both  the learned single judge and  the  appeal  court interfered with the order of the Tribunal on the ground that it had failed to determine a material issue and had thus not performed its duty. It  is  an  admitted  fact that  though  the  appellant  has experience of running buses on certain routes  669 in the State it has no recent experience of running buses in a  town.   The  appellant  could,  therefore,  be   properly regarded  as  a  new entrant in so far as  town  service  is concerned.   This  fact  has never  been  in  dispute.   The Regional  Transport Authority considered  this  circumstance

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against   the  appellant  while  granting  permits  to   the respondents  1  and 2. The Tribunal, however,  adverting  to Government Order No. 2265 dated August 9, 1958 and certain , observations  of  this Court in Raman & Raman  Ltd.  v.  The State  of  Madras  (1),  came to  the  conclusion  that  new entrants  ought  to be preferred in the matter  of  granting permits  even  on  town  routes.   The  Regional   Transport Authority  on the other hand felt that bearing in  mind  the fact  that  there is considerable traffic in towns  and  the roads  are  narrow,  it  is  desirable  to  prefer  existing operators  to a new one.  The Regional  Transport  Authority also  appears to have had in mind a circular  dated  October 14,  1960 issued by the Transport Commissioner in coming  to this  conclusion.   In that circular the  Transport  Commis- sioner  appears  to have placed his  interpretation  on  the Government  Order already referred to in which  routes  have been placed in three categories : "short routes".   "’medium routes"  and "long routes".  In that circular the  Transport Commissioner  has observed :........ the Government  are  of opinion that the town service routes should be excluded from the-scope  of short routes and they should be treated  as  a separate  category".  Apparently, this is nothing more  than the  opinion  of  the  Transport  Commissioner  and  not   a Government  Order  which  requires to  be  given  effect  to wherever possible by the Regional Transport Authority.  Thus one of the reasons given by the Regional Transport Authority may   not  be  correct.   However,  we  wish  to   make   no pronouncement one way or the other on this question  because in   our  view  the  Tribunal  has  not   addressed   itself specifically to the question as to why the appellant  should be preferred to respondent No. 1. No doubt, the (1)  [1953] Supp. 2 S.C. R. 227, 244. 670 Tribunal  has  set out the qualifications possessed  by  the appellant.  But it has not considered whether the respondent No.  I does or does not possess similar qualifications.   In the  circumstances we agree with the High Court  that  there has been no proper determination of the only question  which requires  to  be  determined and that is  why  one  operator should be preferred to another. Mr. B. Sen who appears for the appellant contended that  the learned  single judge ought to have remanded the  matter  to the Tribunal after setting aside its order and that it could not confirm the order of the Regional Transport Authority at any rate without going into the merits of the rival  claims. It  is true that the order of the learned judge is not  very clearly  worded.   But it seems to us that  what  he  really meant  was that the appeal should be rehear by the  Tribunal and decided in the light of his observations.  This we think should  be  sufficient  to  remove  such  grievance  as  the appellants may have.  The appeal is dismissed but there will be no order as to costs in this Court. Appeal dismissed.  671