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PETITIONER: P. KUMARASWAMY

       Vs.

RESPONDENT: STATE TRANSPORT APPELLATE TRIBUNAL, MADRAS AND ANR.

DATE OF JUDGMENT08/10/1975

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. GUPTA, A.C.

CITATION:  1976 AIR 2202            1976 SCR  (2) 244  1976 SCC  (1) 373  CITATOR INFO :  F          1977 SC 842  (5)

ACT:      Motor Vehicles  Act 1939,  Sec. 47(1) Sec. 68A(a)-Rules framed by  Tamil Nadu  government under  Motor Vehicles Act- Whether rules  can  be  discarded  in  the  name  of  Public interest in  Sec. 47(1)-Whether  rules to be supplemented by public interest-Order  of the  Tribunal excluding a relevant factor whether liable to be quashed.

HEADNOTE:      Many applicants  for  one  permit  for  a  short  route pressed their claims before the Regional Transport Authority under the  Motor Vehicles Act, 1939. The Transport Authority evaluated the  relevant merits and awarded the permit to the appellant. The  system of marks under the Rules framed under the Act  by the  Tamil Nadu  Government, prescribes  various qualifications for  applicants  for  permits  for  passenger transport under  the  Act.  The  rule  emphasises  that  the paramount consideration  of the  interest of  the public  as enshrined in  section 47(1)  must be given full weight while awarding permits.  One of the rules provides that preference shall, other  things being equal, be given in respect of the routes to  persons who  have not  held any  permit for stage carriage. One  of the  considerations which  must weigh with the authorities  is the  business of technical experience in the field  of motor operation. The appellant secured 4 marks as against  3.1  marks  secured  by  respondent  No.  1.  In addition, the  appellant was  entitled to  a preference  for being a  new entrant  since the  route was  a short one. The Appellate Tribunal  reversed  the  order  of  the  Transport Authorities and  granted the  permit to respondent No. 2 and set aside  the permit  granted in favour of the appellant on the ground  of public  interest in  the matter  of passenger transport service  and held  that the appellant’s experience as lorry  operator cannot be equated with respondent No. 2’s experience in  Bus operation.  This view  was taken  by  the Tribunal following section 47(1).      The appellant  filed a  Writ Petition in the High Court which was rejected.      On appeal by Special Leave, ^

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    HELD:  (1)   The  rules  or  guidelines  could  not  be discarded in  the name  of section 47(1). The Rules made are really  in  implementation  of  section  47(1)  but  is  not exhaustive of all the considerations that would prevail in a given situation.  The jurisdiction  is given to the Tribunal to take  note of  other considerations  in  public  interest flowing out  of section  47(1). The Rules, are, however, not to be  discarded but they can be supplemented or outweighed. In the  name of  public interest  something opposed  to  the Rules cannot  be done.  The Appellate  Tribunal has actually contravened rule 155(3) which accords 2 marks for applicants who have  a certain  experience in  road transport  service. Road Transport  Service is  defined by section 68A(a) and it makes no  distinction between the type of transport vehicles in which  experience  has  been  gained  whether  it  be  of passenger transport  or a  lorry transport.  The distinction made  between   passenger  transport   and   lorry   service experience by the Tribunal is illegal. A relevant factor has thus been  wrongly excluded.  The  order  of  the  Appellate Tribunal is  liable to  be quashed  on the  well-worn ground that material  consideration  if  ignored  makes  the  order vulnerable. More over, there is an apparent mis-construction of the relevant rule. The respondent No. 1 stated that there were many other grounds which he could have urged before the Tribunal but which have not been adverted to by the Tribunal because he  could have  urged before  the Tribunal but which have not been adverted to by the Tribunal because respondent No. 2  succeeded on  one ground. It is, therefore, fair that the case  should be  remanded to  the Appellate Tribunal for being heard de novo. [216-E-H, 217A-E] 215

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1266 of 1975.      Appeal by  special leave  from the  Judgment and  order dated 3rd  March, 1971  of the  Madras High  Court  in  Writ Petition No. 583 of 1971.      K. S.  Ramamurthi, A. T. M. Sampath and E. C. Agarwala, for the Appellant.      B. Sen and Vineet Kumar for Respondent No. 2.      The Judgment of the Court was delivered by      KRISHNA IYER, J. A single fundamental flaw in the order of the  Appellate Tribunal  (under the  Motor Vehicles  Act, 1939), constrains  us to  allow this  Appeal challenging the High Court’s  refusal to  interfere with  the grant  of  the permit in favour of Respondent No. 2.      Many applicants  for one  permit for  a  "short  route" pressed their claims before the Regional Transport Authority which evaluated  the relevant  merits and awarded the permit to Applicant  No. 6,  who is  the Appellant  before  us.  On appeal, Applicant  No. 3, who is respondent No. 2 before us, succeeded. Whereupon  a  Writ  Petition  was  filed  without success and  the disappointed  appellant has  come  to  this Court by special leave.      The system  of marks,  under the Rules framed under the Act by  the Tamil  Nadu Government,  prescribes the  various qualifications for  applicants  for  permits  for  passenger transport  under   the  Motor   Vehicles  Act,   Rule  155-A crystallises these  considerations  and  describes  them  as guiding principles  for the grant of stage carriage permits. The  rule  itself  emphasizes  what  is  obvious,  that  the paramount consideration  of the  interest of  the public, as

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enshrined in  Section 47  (1), must  given full weight while awarding permits. That means to say that the various factors set out  in rule 155-A are subject to Section 47(1). This is clarified by sub-rule (4) of Rule 155-A, which runs thus:           "After marks have been awarded under sub-rule (3),      the applicants  shall be  ranked according to the total      marks obtained  by them  and the  applications shall be      disposed of  in accordance  with the provisions of sub-      section (1) of Section 47".      There is  no doubt  that bus transport is calculated to benefit the  public and  it is in the fitness of things that the interest  of the  travelling public is highlighted while evaluating the relevant worth of the various claimants.      There  are   two  circumstances  which  require  to  be stressed because  they have been overlooked by the appellate tribunal in  its disposal  of the  comparative merits of the rival claimants.  Sub-rule (5)(i)  of Rule 155-A states that preference shall,  other things being equal, be given in the disposal of applications in respect of short routes.......to persons who  have not  held any permit for a stage carriage. Among  the   considerations  which   must  weigh   with  the authorities entrusted  with the  power to  grant permits, is business or technical experience in the 216 field of  motor vehicles  operation. Rule 155-A in Item (D), sub-rule (3) specifically states "two marks shall be awarded to the  applicants who have business or technical experience in the  road transport  service as  defined in clause (a) of Section 68-A of any class of transport vehicles for a period of ten years or more".      Having regard  to the  marking system  as adumbrated in rule 155-A,  a broad  sheet was  apparently prepared and the appellant before  us (Applicant  No. 6)  secured 4  marks as against the second respondent (Applicant No. 3) who got 3.10 marks. Ordinarily,  therefore, the  applicant who got higher marks should  have won  the battle.  Moreover,  in  a  short route, as  in this  case, the  rule contemplates  preference being given  to a new entrant, of course, other things being equal. In  this case,  therefore, the  appellant before  us, being admittedly  a new entrant, was entitled to preference, the route  being a  short one, other things being equal. The short question  that, therefore,  fell before  the Appellate Authority was  as to  whether other  things were equal. This aspect attracted  the attention  of the Appellate Authority, but its  consideration unfortunately was unsatisfactory. The Appellate Tribunal  observed that though the Applicant No. 6 had secured  higher  marks  than  Applicant  No.  3:  "I  am inclined, having regard to the public interest in the matter of  passenger   transport  service,   to  agree   with   the appellant’s contention  that the  respondent’s experience as lorry  operator  cannot  be  equated  with  the  appellant’s experience in  bus operation."  This view, according to him, is tenable  under Section  47 (1) since this matter involves grant of  bus permit.  "The fact that the appellants are bus operators,  must  necessarily  over-ride  the  fact  of  the respondent being  a lorry  operator.  Though  the  route  in question is  a short  route and  there is a new entrant like the  respondent,  the  respondent  cannot  automatically  be preferred in  the absence  of other  things being  equal, in accordance with clause 5(1) of Rule 155-A".      The  error  that  has  crept  into  the  order  of  the Appellate Tribunal  consists in  thinking that  the rules or guidelines could  be discarded in the name of Section 47(1). Actually, Rule  155-A is in implementation of Section 47(1), but is  not exhaustive  of all  the considerations that will

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prevail in a given situation. Therefore, it is that there is jurisdiction given  to the  Tribunal to  take note  of other considerations in  public interest  flowing out  of  Section 47(1).  Not   that  the  sub-rules  of  Rule  155-A  can  be discarded, but  that they may be supplemented or outweighed. Not that,  in the name of public interest, something opposed to the  sub-rules of Rule 155-A can be done but that, within the combined  framework of  Section 47(1)  and  rule  155-A, there is  scope for play of the jurisdiction of the Tribunal to promote  public interest.  Viewed in this perspective the Appellate Tribunal  has actually contravened Rule 155(3)(D). That provision  expressly accords  two marks  for applicants who have  a certain  experience in  road transport  service. ’Road transport service’ is defined in clause (a) of Section 68-A and  this definition  is specifically  incorporated  in Rule 155-A  (3) (D).  It follows  that  the  rule  makes  no distinction between  the type  of transport vehicle in which experience  has  been  gained  whether  it  be  a  passenger transport or  a lorry  transport.  The  view  taken  by  the appellate tribunal 217 that because  the permit  is for  passenger transport, lorry service experience,  even if  it falls  under Rule 155-A (3) (D), can  be ignored,  is  therefore,  illegal.  A  relevant factor has thus been wrongly excluded.      Connected with  the same  flaw is  what we have earlier indicated namely,  that the Appellate Tribunal has held that the new  entrant (Applicant  No. 6)  need not  be given  the preference he  is eligible  for under Rule 155-A (5) because other things  are not  equal. According to him, other things not equal  because  Applicant  No.  6  has  lorry  transport experience  while   Applicant  No.   3  has   bus  transport experience.  We  have  already  explained  that  this  is  a fallacy. In  this view,  the preference that flows in favour of applicant No. 6 under Rule 155-A (5) should not have been denied to him for the reasons set out by the Tribunal.      For these  reasons, the order of the Appellate Tribunal is liable  to be  quashed. The  well-worn  ground  that  mat material  consideration,   if  ignored,   makes  the   order vulnerable, applied.  Moreover, these  is an  apparent  mis- construction of the relevant rule by the Appellate Tribunal, as we have explained above.      This does  not mean  that this  Court  will  award  the permit to  one party  or the  other. That is the function of the statutory  body created  under the  Motor Vehicles  Act. Moreover, as  Mr. Sen,  appearing for the second respondent, has rightly  pointed out,  his client had many other grounds to urge  before the  Appellate  Tribunal  to  establish  his superiority,  which   have  not  been  adverted  to  by  the Appellate Tribunal because on one ground he succeeded. It is only fair,  therefore, that  the case  is  remanded  to  the Appellate Tribunal  for being  heard de  novo  wherein  both sides (no  other applicant  will be heard), will be entitled to urge  their respective claims, for the single permit that is available to be awarded.      The only point that remains to be decided is as to what is to  happen for bus operation during the period the Appeal is to be heard and the further proceedings which may follow. We direct  that the  second respondent be allowed to ply the bus as  he is  doing it  now until disposal of the appeal by the Appellate Tribunal. It is represented by Mr. Ramamurthy, appearing for the Appellant, that his client had been plying the bus  on the  route on and earlier occasion till the High Court dismissed  the Writ  Petition. If  there had  been any period when  both operators  had been  plying their buses on

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the route  during the  course of this litigation, especially at the time the Writ Petition was pending in the High Court, it will  be open  to the  Appellate Tribunal  to allow  thee Appellant before us (Applicant No. 6) also to ply his bus on the same  route. With  these directions, we allow the Appeal and direct  the Appellate  Tribunal to  dispose of the motor vehicles Appeal No. 542 of 1970. Parties will bear their own costs throughout. P.H.P.                                        case remanded. 218