ORDER
1. Though this petition is posted for orders but both the sides have argued for final disposal, hence it is disposed of by this order.
2. In this petition under Arts. 226 and 227 of the Constitution the petitioner has sought for quashing the order dt. 4th April 1988 passed by the Karnataka State Transport Appellate Tribunal (hereinafter referred to as the 'Tribunal') in Appeal No. 127/1988 Annexure-B. By the impugned order the Tribunal has set aside the resolution dt. 7-11-1986 passed in Sub. No. 555/86-87 by the Regional Transport Authority, Dakshina Kannada granting a stage carriage permit to the petitioner on the route State Bank to Adyar Launch Jetty Via .Tyothi Kadri Kanthoor Maroli Padil 10 R. Ts as per the timings notified.
3. Having regard to the contentions urged on both sides the point that arises for consideration in this writ petition is as to whether in the facts and circumstances of the case the order passed by the Tribunal reversing the resolution of the R.T.A. and granting permit to the 3rd respondent on the route in question is justified.
4. The R.T.A. opened the route in question under S. 47 (3) of the Motor Vehicles Act (hereinafter referred to as the 'Act'). Pursuant thereto it called for the applications. The petitioner, 3rd respondent and six others filed the applications. The R.T.A. considered all the eight applications after following the procedure prescribed under the Act and held that the petitioner was entitled to five marks whereas the respondent was entitled to four marks and also that the 3rd respondent was not having the vehicle ready to put on the route whereas the petitioner had a ready vehicle. The R.T.A. also took into consideration that the petitioner held temporary permit on the route in question for a period of three years: Accordingly, it resolved to grant the permit to the petitioner and rejected ail other applications.
5. Aggrieved by the decision of the R.T.A. two appeals were preferred, one by the 3rd respondent being Appeal No. 127/1986 and the other by one of the objectors by name Smt. K. Lakshmi being URA 114/1987 before the Tribunal. The Tribunal heard and decided both the appeals together by a common order. The Tribunal allowed the appeal of the third respondent, reversed the resolution of the R.T.A. and granted stage carriage permit to the 3rd respondent. Consequently it set aside the permit granted to the petitioner and dismissed the appeal URA 114 of 1987 preferred by Smt. K. Lakshmi.
6. It is relevant to notice that the route in question is a short route. Both the authorities have noticed this aspect of the matter. The 3rd respondent did not hold any pacca stage carriage permit whereas the petitioner held one pacca stage carriage permit for the last 3 1/2 years on the date of filing of the application. The R.T.A. came to the conclusion that the 3rd respondent cannot be compared with the petitioner because the petitioner was entitled to five marks whereas the 3rd respondent was entitled to only four marks. Accordingly, it did not consider the question of applicability of R. 104-A(i) and (ii)(a) of the Karnataka Motor Vehicles Rules, 1963 (hereinafter referred to as the 'Rules'). The R.T.A. also took into consideration of the fact that there was a ready vehicle available with the petitioners. Thus the R.T.A. granted a stage carriage permit to the petitioner and rejected all other applications.
7. Whereas the Tribunal held that the R.T.A. without any justification failed to award one mark to the 3rd respondent under the head 'business or technical experience; that the 3rd respondent had the necessary business or technical experience in the field of Transport was not at all disputed before the Tribunal. This fact is also not disputed before me. Therefore, the Tribunal was justified in holding that the 3rd respondent was also entitled to one more mark under the head 'business or technical experience' in the field of transport. Regarding the other aspects of the matter the Tribunal came to the conclusion that the past records of the petitionerwere not free from blemis, whereas those of the 3rd respondent were clean in as much as there was no adverse entry in the broadsheet of the 3rd respondent though the 3rd respondent had operated service on the basis of a temporary permit for a period of one year one month on the date of consideration of the applications. The Tribunal took this aspect of the matter into consideration and held in favour of the third respondent.
8. It is contended by Sri Krishnaswamy, learned counsel for the petitioner that the 3rd respondent cannot at all be considered to be a new entrant in the transport field because he had been granted three temporary permits on the basis of which he had been operating a stage carriage service on the date of consideration of the application for over a period of one year.
9. The question for consideration is whether an operator who has not held any pacca stage carriage permit and has held only a temporary stage carriage permit could be considered to be a new entrant while considering the application for grant of a pacca stage carriage permit. Rule 104A of the Rules which falls under Chap. IV of the Rules relating to 'Control of Transport Vehicles', prescribes guiding principles regarding grant, Variation, Suspension or Cancellation of Stage. Carriage Permit.' Thus, the guiding principles prescribed by R. 104A of the Rules are to be taken into consideration in matters relating to grant of a stage carriage permit apart from other matters enumerated therein R. 104A(1) classifies the routes into three classes i.e., short, medium and long routes. As already pointed out the route in question is a short route because it covers a distance of less than 50 kms. Rule 104A{ii) which is relevant for our purpose reads thus :
'(it) other things being equal, preference shall be given to applicants as follows :--
(a) for short route including shuttle services, to new entrants :
(B) for medium routes, to applicants with one to four stages carriages (excluding spare buses).
If the 3rd respondent is considered to be a new entrant, he having secured marks equivalent to that of the petitioner and having had a clean record of operation of stage carnage service compared to that of the petitioner he will definitely be entitled to a preference under R. 104A(ii)(a) of the rules. Therefore, the question for consideration is whether he can be considered to be a new entrant. The mere fact that an operator is holding a temporary stage carriage permit does not make him an old operator as long as he has not held any pacca stage carriage permit. A holder of a temporary stage carriage permit without holding a pacca stage permit on any route, cannot be considered to have settled in transport operation i.e., operation of a stage carriage service. A person can be considered to have entered the business of a transport operation if he comes to possess a pacca stage carriage permit. The rule itself relates to the proceedings relating to grant, variation suspension, cancellation of pacca stage carriage. It is only such of those persons who have not held any pacca stage carriage permit can be considered to be new entrant. A holder of a temporary stage carriage permit cannot be considered to be an old operator. The object of R. f04A(ii)(a) is to assign short routes as far as possible to new entrants. If a temporary stage carriage permit holder without holding a pacca stage carriage permits on any route is considered to (be) an old operator the very object of the rule will be defeated. Therefore, 1 am of the view that an applicant who has.only held a temporary stage carriage permit and who has not held a pacca stage carriage permit at any point of time before consideration of the application filed for grant of a pacca stage carriage permit on a short route shall be and is entitled to be considered as a new entrant. This interpretation advances the object of the Rule and enables new enter ants to secure a pacca stage carriage permit on short routes even though they had held temporary stage carriage permits and thereby it also avoids or eliminates concentration of pacca stage permits on short routes in the hands of those operators who were already holding pacca stage carriage permits. Therefore the Tribunal has rightly rejected (sic)R. 104A(ii)(a) of the Rules and has rightly given the benefit of this Rule to the 3rd respondent.
10. It is contended by Sri S. V. Krishna Swamy, learned counsel for the petitioner that the 3rd respondent had operated stage carnage service only for a short period of one year one month, whereas the petitioner operated for over a period of 3 1/2 years therefore during this long period if three adverse entries had been made in the broadsheet of the petitioner, the same should not have been weighed so much against the petitioner. In this regard it is relevant to notice that the Supreme Court itself has pointed out that where one of the applicants had operated for a longer period, therefore, there were several adverse entries against him in the broadsheet and whereas the other applicant had operated for a short period and there were no adverse entries should not itself be a ground to overlook the adverse entries made against the applicant who had operated for a longer time. (See K. Balasubramania Cheety v. N.M. Sambanda Moorthy, : [1975]3SCR91 , wherein it has been held thus (para 7)) :
'The learned single Judge was also in error in'holding that the same standard was not applied by the State Transport Appellate Tribunal in comparing the history sheets of the appellant and the respondent. The history sheet of the appellant related only to his performance as stage carriage operator and the entire history sheet was before the State Transport Appellate Tribunal and it showed that the appellant had a clean record. On the other hand, the respondent had two history sheets, one relating to his performance as stage carriage operator and the other relating to his performance as lorry operator and both the history sheets showed adverse entries. It can hardly be disputed that this comparison with reference to the past performance of the appellant and the respondent was relevant to the question as to who between the two should be selected for grant of permit. It may be that the history sheet of the respondent as lorry operator related to a period often years while that of the appellant as a stage carriage operator covered a shorter period, but thatcannot be helped. The comparison has to be made on the basis of the available material and if the history sheet of the respondent, which may be for a longer period, shows that the past performance of the respondent was not satisfactory while the history sheet of the appellant, though for a shorter period, shows that he has had a clean record of performance, that would certainly be a relevant circumstance to be taken into account. The State Transport Appellate Tribunal was plainly right in relying on this circumstance, amongst others, for the purpose of preferring the appellant to the respondent.'
However, it is contended that this Court in Lakshmana Reddy v. State of Karnataka, : AIR1976Kant36 , has held that the nature of the adverse entries should be taken into consideration rather than the number. Nevertheless the aforesaid decision of this Court in Lakshmana Reddy's case affirms the view that the adverse entries in the Broadsheet are relevant and the same are to be taken into consideration for the purpose of determining the suitability of an applicant for grant of a stage carriage permit. In addition to this the Supreme Court in the aforesaid K. Balasubramania's case has held in unequivocal terms that the entries in the broadsheet are relevant for the purpose of considering suitability of an applicant. Therefore, the Tribunal was justified in relying upon the adverse entries contained in the broadsheet against the petitioner.
10A. It is next contended that the 3rd respondent had no vehicle and the number of the vehicle furnished by him before the R.T. A. was not that of a stage carriage and it was that of a goods vehicle, therefore R.T.A. rightly refused to grant the permit. In this regard it is contended by Sri C.S. Shantha-mallappa, learned counsel for the 3rd respondent that the number noted by the R.T.A. in its Resolution as CTX 8355 is not correct. The number furnished by the 3rd respondent was CTX 8353. The Tribunal has considered this aspect of the matter in greater detail, therefore it is not necessary to reconsider the same. The Tribunal has further recorded the undertaking of the 3rd respondent that he Wouldcover the permit with 1986 model in the 1st four months and later on with the 1988 model. Having regard to the fact that the 3rd respondent is a new entrant and the route is a short route he is entitled to a preference under Section 104A(ii)(a) of the Rules, the R.T.A. ought to have endeavoured to give effect to the rule preference contained in R. 104A (ii)(a). When the Rule itself provides for giving preference, it becomes the duty of the Transport Authorities empowered to grant stage carriage permits to implement the object of the Act and the Rules and not to allow such object to be defeated on some ground which does not have a bearing on the operation of the service. The question as to whether the applicant should or should not, be in possession of the vehicle at the time of granting is considered by the Supreme Court itself in K.M. Vishwanath's case, : [1969]2SCR896 , wherein it has been held that the vehicle may not be kept ready on the date of consideration of the application and it is enough if the grantee is able to cover the permit with a road worthy vehicle which may or may not belong to him. However, Sri Krishnaswamy, learned counsel for the petitioner has placed reliance on a decision of the Supreme Court in Patiala Bus (Sirhind) Pvt. Ltd. v. State Transport Appellate Tribunal, Punjab reported in, : AIR1974SC1174 . In that decision it is held thus :
'The main considerations required to be taken into account in granting permit under S. 47 are the interest of the public in general and the advantages to the public of the service to be provided. These would include inter alia consideration of factors such as the experience of the rival claimants, their past experience, the availability of standby vehicles with them, their financial resources, the facility of well equipped workshop possessed by them etc. Failure to take into account any of these considerations and proceeding as if the stage carriage permits were a largesse to be divided fairly and equitably amongst the rival claimants is a wholly erroneous approach suffering from an infirmity.'
The learned counsel laid a stress on the observation as to the availability of a standby vehicle. The decision of the Supreme Court inK. M. Vishwanath's case, : [1969]2SCR896 , and in Patiala Bus (Sirhind) Pvt. Ltd. v. State Transport Appellate Tribunal Punjab, : AIR1974SC1174 , have to be read together. A reading of both the decisions together would make it clear that what is necessary is that a roadworthy vehicle must be made available, and it is not necessary that the applicant should own the vehicle. In the instant case the 3rd respondent has given an undertaking that he would cover the permit by 1986 model vehicle for the 1st four months and thereafter with 1988 model. This undertaking is sufficient to safeguard the interest of the public and more specially that of the travelling public. It is also relevant to notice that the 3rd respondent as on today has purchased 1968 model vehicle and has kept it ready for operation.
11. It is next contended that as the 3rd respondent did not own a vehicle, and even before the R.T.A. the number of the vehicle furnished by him was not that of a stage carriage even if a stage carriage permit were to be granted to such an applicant it would not have been in the interest of a travelling public. In the light of the conclusions reached by me as above, this contention does not assume any importance. As the experience of the 3rd respondent in the transport business is not disputed and as he has been operating the service on a temporary stage carriage permit and as there are no adverse entries in the broadsheet of the 3rd respondent and the Tribunal as a fact finding authority has found him to be suitable for granting permit, it is not possible to accept the contention of the learned counsel for the petitioner that the interest of travelling public would suffer if the permit is granted to third respondent.
12. It is also contended that the Appellate Authority has exceeded its jurisdiction in interfering with the finding of fact recorded by the R.T.A. that the petitioner is suitable for grant of a stage carriage permit in question. In this regard it is also contended that the fact that the petitioner had a ready vehicle tilted the decision of the R.T.A. in favour of the petitioner, therefore, the Tribunal should not have interfered with the finding of theR.T.A. In this regard the decision of the Supreme Court in Padma Uppal v. States of Punjab, : [1977]1SCR329 is relied upon. This decision is not applicable to a case where the appeal is preferred under S. 64 of the Act to the Tribunal. The scope of the appellate jurisdiction under S. 64 of the Act is considered by a Division Bench of this Court in P. Abdul Azeez, Beilary v. Mysore Revenue Appellate Tribunal, Bangalore, AIR 1962 Mysore 31. It has been held by a Division Bench thus (Para 12) :--
'From the summary given above of manner in which the three Authorities have dealt with this question, there can be no doubt that the original Authority thought it unnecessary to examine the question of need on the view that the same had already been decided, the first Appellate Authority examined the material fairly fully and came to certain conclusion and the second Appellate Authority addressed itself more to finding fault with the original authority than to correct its faults as it should have done as a second appellate authority. While it is no doubt true that where the original Authority has not considered or fully considered a certain question or issue it is not proper for an Appellate Authority simply to affirm it, that is not what the State Transport Appellate Tribunal did in this case as the Revenue Appellate Tribunal appears to think. The State Transport Appellate Tribunal did go into the matter and examine the material on record fairly fully. The Revenue Appellate Tribunal is therefore Wrong, in our opinion, in referring to the judgment of the State Transport Appellate Tribunal as one in which it simply affirmed the decision of the Regional Transport Authority. No doubt, the conclusions of the State Transport Appellate Tribunal are not final but are open to examination and scrutiny by the second Appellate Tribunal, Viz., the Revenue Appellate Tribunal.
All the three Authorities are ones which have jurisdiction to examine not merely questions of law but also those of fact. There is also no doubt that everyone of them is governed by the provisions of S. 47 which enumerates considerations which arc relevant to the topic. Everyone of them is bound toexamine both questions of fact and questions of law before arriving at their conclusions. Therefore, if the original Authority fails or omits to consider any of the matters bearing on the merits of the case, the duty of the Appellate Authority is not straightway to remand the matter back to the original authority but to examine the questions which the original Authority had failed or omitted to examine, if there is material on record bearing on the said questions.
A remand, in our opinion, would be justified only if there is no material at all on the basis of which the question left undecided by the original authority can properly be decided by the appellate Authority or if the latter finds that the material is insufficient to enable it to come to a just decision on the question. We are equally clear in our opinion that where there is material on record and the original Authority has examined the same and come to a certain conclusion, the appellate Authority can re-assess the material and come to a different conclusion, but it should not do so without examining the material on record. That is what, in our opinion, the Revenue Appellate Tribunal has done in this case. It is true that the first Authority did not consider the question of need. But the first Appellate Authority, the State Transport Appellate Tribunal has examined the material on record and recorded a finding. By merely stating that they could not bring themselves to agree with that finding, the Revenue Appellate Tribunal could not he said to have performed its duty as a second Appellate Authority.'
In the instant case the Tribunal has acted in conformity with the decision in P. Abdul Azeez's case in as much as some of the records which were according to the 3rd respondent produced before the R.T.A. and were not taken on record and the same were produced before the Tribunal along with an appropriate application and the petitioner and others were given opportunity to file their objections to the same have been rightly taken into consideration by the Tribunal. The R.T.A. had failed to take into consideration of the same. In doing so the Tribunal has acted well wit him its jurisdiction and as per the decision of this Court in P. Abdul Azeez's case. In view of theconclusions reached by me and in the facts and circumstances of the case I am of the view that the Tribunal is justified in reversing the decision of the R.T.A. and granting the permit to the 3rd respondent. Accordingly, the point raised for determination is answered in affirmative.
13. For the reasons stated above, the writ petition fails and the same is dismissed.
14. At this stage, it is submitted on behalf of the petitioner that during the pendency of the writ petition there was an interim order of stay passed. Consequently, the petitioner has been operating the service on the route in question. Therefore to avail the remedy of an appeal and seek appropriate interim order, the status quo obtaining as on today may be continued for a period of 30 days. However, it is opposed to by Sri C. S. Shanthamallappa, learned counsel for the 3rd respondent on the ground that the 3rd respondent has now purchased 1988 model vehicle on 11-7-1988 and it is ready for operation and the permit now in question will be covered by the aforesaid 1988 model vehicle. As the petitioner had the benefit of the interim order during the pendency of the writ petition and as he has a right of appeal, it appears to me that it is just and appropriate to continue the status quo for the further period of four weeks. Accordingly, the status quo obtaining as on today is continued till 13-2-1989.
15. Order accordingly.