Judgment:
H.S. Bedi, J.
1. The present writ petition is directed against the order of the State Transport Appellate Tribunal, Punjab Chandigarh dated 26th September, 1991 and appended as Annexure P-2 to the petition, whereby the order of the State Transport Commissioner, Punjab Annexure P-1, has been set aside and a permit on the Mohali Patiala route has been given in favour of respondent No. 3 after withdrawing it from the petitioner.
The facts giving rise to the petition are reproduced below:
Vide notice dated 15th June, 1988 published in the Motor Transport Gazette, the State Transport Commissioner invited applications for the grant of three regular stage carriage permits with three return trips on the Mohali Patiala via Landran, Banur Rajpura route.
2. A number of operators including the petitioner and respondent No. 3 applied for the grant of the aforesaid permits. The matter was considered by the State Transport Commissioner in the meeting held in Patiala in the month of November, 1988 and after hearing the respective claims, order dated 10th December, 1988 appended as annexure P.1 to the petition, was pronounced, vide which two permits with two return trips daily were given to the Pepsu Road Transport Corporation and one permit with one return trip to the petitioner. The two points that weighed with the Commissioner were (i) that it would be desirable to grant a permit to a fresh entrant so as to inject fresh blood and to introduce an element of competition and (ii) that the petitioner being located at Mohali (which was one of the terminal on the route) would be in a better position to serve the travelling public. The case of respondent No. 3 as also some of the other applicants who were big operators and running large fleets was not considered by the State Transport Commissioner. Aggrieved by the order Annexure P-1 the petitioner as also certain other applicants, preferred appeals before the Tribunal, which found vide its order Annexure P-2 that the reasons given by the Commissioner for the grant of three route permits in favour of the petitioner were not convincing and against the considerations countenanced by Section 47(1) of the Motor Vehicles Act, 1939 (hereinafter referred to as the 'Act'). The Tribunal also found it difficult to understand as to how a fresh entrant could render more efficient! service to the travelling public in preference to an experienced operator and a specific reference was made to Section 47(1) (e) of the Act which provided that one of the relevant considerations for the grant of stage carriage permits would be the operation by the application of other transport services. Keeping in view the respective merits of the parties, the tribunal withdrew the route permit from the petitioner and granted the same to respondent No. 3 instead. It has been averred in the petition as also at the time of arguments addressed by Mr. M.S. Khaira, learned Senior Advocate appearing for the petitioner, that the Tribunal fell deeply in error in making the impugned order as the past operation of respondent No. 3 did No. t inspire confidence inasmuch as during the period 1983-1987 it had fallen deeply into financial difficulties which had necessitated the surrender of a large number of permits. It was also asserted that huge tax arrears amounting to more than rupees fifteen lacs were due from the respondent for the period above-mentioned. While admitting that the operations of respondent No. 3 after 1988 have been without blemish, it has been asserted that the past conduct of respondent No. 3 did not mean the immediate past conduct but even the remote past had to be looked into. It has also been stated that the Commissioner was fully entitled to grant the permit in favour of the petitioner as a first entrant in view of the fact that it would have been unwise to create a monopoly in favour of respondent No. 3, who admittedly was a very big operator and was also operating on a part of the route in question. In furtherance of this argument, reliance has been made by the counsel on Sri. Rama Vilas Service (Private) Limited v. C. Chandrasekaran and Ors. : [1964]5SCR869 which ahs been subsequently followed in R.K.V. Motors and Timbers (Private) Limited v. M. V. Balachandra Kurup and Ors. : AIR1976Ker7 .
3. In reply to these arguments counsel for respondent No. 3 has urged that even if the past conduct of respondent No. 3 was to be looked into as suggested by the counsel for the petitioner even then no fault could be found with the order of the Tribunal. By way of elaborately it has been stated that respondent No. 3 Started its operations before the partition of the country in the year 1947 and except for a period of four years between 1983-1987 when things were dark and gloomy, it had held a glorious tradition and enviable reputation for service to the travelling public. It had been admitted that due to the misfortunes of the Company, a large number of permits had to be surrendered and a notice dated. 15th December, 1983 for making alternative arrangements on the said routes was issued and thereafter alternative arrangements were in fact made. It has also been admitted that tax arrears were due from respondent No. 3 but the same were cleared some time in September, 1987, with the result that almost all the permits which were earlier with it (except the ones which had been surrendered) were restored in December of the same year. It has been stated by Mr. Baldev Kapoor, Learned Counsel for respondent No. 3 that since the order aforementioned almost all the penalty arrears have also been cleared. In answer to the question of conferment of a monopoly status which is sought to be avoided by the Commissioner it has been asserted that there was no such possibility as admittedly a large number of other operators including the Pepsu Road Transport Corporation which vide order Annexure P-1 was granted two route permits on the same route, were also operating. It has also been urged by the counsel for the respondent that the petitioner had vide orders dated 5th June, 1988 and 25th December, 1988 appended as Annexures R-1 and R-2 with the reply, secured two other permits one on the Patiala -- Budhlada and the other on the Ahmedgarh Mohali route as a fresh entrant and, as admittedly the order dated. 5th June, 1988 was made prior to the other Annexure P-1 which is dated 10th December, 1988, the petitioner was not, in fact, a fresh entrant. It has also been urged with reference to a decision of the Supreme Court reported as Ram Gopal v. Ananl Prasad and Anr. : AIR1959SC851 that the powers of the Tribunal in appeal under Section 64(a) of the Act are co-extensive with the powers of the Commissioner under Section 47 of the Act and, as such, the Tribunal was entitled to re-appraise the merits of the controversy and arrive at a conclusion different from the one recorded by the Commissioner. It has also been urged on the basis of Sri. Rama Vilas Service (Private) Limited's case (supra) that this Court would not interfere in the choice made by the Tribunal until and unless it could be said that the matters that weighed with it were contrary to law and legal principles.
4. After hearing counsel for the parties, I find no merit in this petition. It has been urged by the counsel for the petitioner and not denied by the respondent that the performance of respondent No. 3 during the period 1983-1987 had been very poor on account of various reasons set out in the pleadings. It has also been conceded that after 1988 when the respondent made a substantial recovery, the performance has been without complaint. It is also not denied that prior to 1983 the performance of the respondent as an operator had been very good. Admittedly the date on which the matter interse the petitioner and respondent No. 3 has to be considered is the date on which the Commissioner granted the permits to respondent No. 3 i.e. 10th December, 1988. Concededly the arrears of tax due from respondent No. 3 had been cleared in September, 1987 and in December of that year, a large number of permits which had been taken away were restored, as already mentioned above, counsel for respondent No. 3 has stated at the bar that even the penalty which had been imposed on his client has since been cleared. Even accepting the argument of the counsel for the Petitioner that not only the recent, but also the remote past must be looked into in order to determine the merits of an application, it is apparent to me that respondent No. 3 who had been operating for more than 45 years had except for a brief period of five years a very successful operation.
5. It is to be noted form a reading of Section 47(1) of the Act that interest of the public generally is what is required to be seen and the points to be kept in view have been set out by the Supreme Court in Patiala Bus (Sirhind ) Private Limited v. State Transport Appellate Tribunal Punjab and Ors. : AIR1974SC1174 which reads as under: --
The main considerations required to be taken into account are the interest of the 'public in general and the advantages to the public of the service to be provided, and these would include inter alia consideration of factors such as the experience of the rival claimants, their past performance, the availability of stand by vehicles with them, their financial resources the facility of well equipped workshop possessed by them etc. The State Transport Appellate Tribunal, however, failed to take into account any of these considerations and proceeded as if the stage carriage permits were a largesse to be divided fairly and equitably amongst the rival claimants. We do not find in the order of the State Transport Appellate Tribunal any discussion of the question as to what the interest of the public in general requires and who from amongst the rival claimants would be able to provide the most efficient and satisfactory service to the public. None of the relevant factors is considered, or even adverted to, by the State Transport Appellate Tribunal. The State Transport Appellate Tribunal merely seems to have considered what would be fair as between the appellant and the third respondent and though that it would be most fair if one stage carrier permit with a return trip were granted to the appellant and one stage 'carriage permit with return trip were granted to the third respondent. That is a wholly erroneous approach. The question that has to be considered is not as to what would be fair as between the appellant and the third respondent, but what does the interest of the public, which is to be provided with an efficient and satisfactory service, demand. The order of the State Transport Appellate Tribunal, therefore, suffered from an infirmity in that it failed to take into account relevant considerations and proceeded on the basis of an irrelevant consideration.
6. It appears to me that where an applicant is able to provide facilities such as the ones quoted above, the case of a fresh entrant would recede into the background. It is note worth y that the Act itself makes a special provision for preferences to be accorded to Co-operative Societies, persons already holding valid licences for driving transport vehicles and also for members of the Scheduled Castes and Scheduled Tribes in the grant of stage carriage permits, but no such preference has been reserved or made for fresh entrants. It may once again be reiterated that the grant of a permit is as a measure of public utility and not a largesse to be doled out on purely equitable or sentimental considerations. The perm it must go in the absence of specific rules or instructions to an operator who can provide the most efficient service. Mr. Khaira learned Counsel has argued that as per the norms of the Department a permit for a length of less than 300 Kms was not viable and, as such, instructions have been issued to give permits for at least that distance and a grant of a permit to an existing operator whose permit was of less than that distance would not take away his status as a fresh entrant. This argument too, is without force as admittedly, the instructions are only with regard to the length for which the permit ought to have been granted and have nothing to do with the question of defining as to who is a fresh entrant into the transport business.
7. It has also been urged that it would be in the interest of the travelling public to avoid the creation of a monopoly and by creating a healthy competition amongst various operators service to the travelling public would be improved. Reliance for this assertion was made on Sri. Rama Vilas Service Private Limited's case (supra) and also M/s R.K.V. Motor's case (supra). This argument, too, is without basis as it has been pointed out to me that in the two cited cases, there was no other operator operating on the route in question and the fresh permit was also sought to be given to the solitary existing operator. Admittedly, the monopoly would have been created in this case if no other operator was operating on the route in question but as already mentioned above, there are already a large number of other operators rendering service on the Patiala -- Mohali route.
8. As already indicated on the basis of Sri. Rama Vilas Service Private Limited's case (supra) that it is not the function of the writ Court to go into the merits of the controversy between the parties sitting as if it were a Court of appeal. It is also clear as per Ram Gopal' s case (supra) that the powers of the Tribunal are co-extensive with the powers of the Commissioner and as such, the Tribunal is fully authorised and entitled to re-appraise the merit of the controversy to arrive at its own conclusion. In my opinion the view taken by the Tribunal cannot be faulted on any score. I have also notwithstanding the judgment of the Supreme Court in Patiala Bus (Sirhind) Private Limited's case (supra) and on the basis of the pleadings of the parties and the impugned orders, come to the conclusion that the claim of respondent No. 3 was more meritorious as it had a fleet of 60 buses and was already covering a major portion of the route in question and had its head office with well equipped workshop at Ropar. It has also been stated in the order Annexure P-2 that respondent No. 3 ' has operational spare capacity and also the financial resources to introduce more buses. As already indicated above, these factors are to be borne in mind while granting stage carriage permits.
9. For the reasons recorded above, there is no merit in the petition and the same is dismissed but with no order as to costs.