C. Abdul Aziz Vs. Mysore State Transport Appellate Tribunal at Bangalore and ors. - Court Judgment

Santosh, J.

(1) The question that arises for decision in these two petitions under Article 226 of the Constitution is whether a stage carriage operator who has filed his representations under Section 57(4) of the Motor Vehicles Act, 1939, after the notified time is entitled to file an appeal under Section 64(1)(f) of the said Act.

(2) The petitioner in both these petitions is one Abdul Azeez. He has prayed for a writ in the nature of prohibition or any order or direction, prohibiting the first respondent (Mysore State Transport Appellate Tribunal) from proceeding with the hearing of the Appeals Nos. 415 and 420 of 1964 pending on its file. The petitioner has further prayed for a writ in the nature of certiorari or any other order or direction quashing the order of the first respondent dated 10-7-1964 passed in the said appeals referred to before.

(3) The petitioner applied on 8-12-1960 for a stage carriage permit on the route Bangalore-Chittoor. The Regional Transport Authority notified the same on 2-2-1961 as per Section 57(3) of the Motor Vehicles Act, hereinafter to be referred to as 'the Act'. The last date for submitting representations under Section 57(4) was 20-2-1961. Respondent 3 in W.P. 1252/64 made his representation on 27-2-1961. The Regional Transport Authority, Bangalore, granted a permit on 30-4-1962 to one Sri Appiah Reddy. The petitioner filed an appeal to the Mysore State Transport Appellate Tribunal which allowed his appeal and remanded for fresh disposal all the applications to the Regional Transport Authority, Bangalore. Sri Appiah Reddy preferred a Second Appeal to the Mysore Revenue Appellate Tribunal and obtained an order of stay. The petitioner filed Writ Petition 482 of 53 before this Court. This Court directed the Regional Transport Authority to consider the petitioner's application. Thereafter, the Regional Transport Authority, Bangalore, rejected the application of the petitioner on 22-5-1963. Against the said orders of the Regional Transport Authority rejecting the said application, the petitioner filed W.P. 841/63 in this Court. This Court quashed the said orders of the Regional Transport Authority, Bangalore and directed it to consider the applications of the petitioner and two others, namely, respondent 4 and one Venugopal Mudaliar who had filed representations under Section 57(4) of the Act in time. On 24-6-1964, the Regional Transport Authority, Bangalore, ordered the grant of permit to the petitioner and the petitioner commenced the service of the said route from 1-7-1964 in accordance with the conditions of the permit. The 3rd respondent in both these writ petitions filed Appeal Nos. 415 and 420 of 1964 before the first respondent--Mysore State Transport Appellate Tribunal, Bangalore, and obtained an order of stay. The petitioner raised a preliminary objection before the first respondent that both the said appeals were not maintainable according to law. The first respondent, by its order dated 10-7-1964 overruled the said objection of the petitioner and held that the said appeals are maintainable. The petitioner has filed these two writ petitions questioning the jurisdiction of the first respondents to entertain the said two appeals.

(4) Sri Malimath, learned counsel for petitioner, has contended that the 3rd respondent in each of these writ petitions, was not competent to file any appeal under Section 64(1)(f) of the Act because he had not filed any valid representation opposing the grant of permit to the petitioner before the Regional Transport Authority, Bangalore. The last date for filling representations opposing the grant of permit to the petitioner was 20-2-1961 and respondent 3 in W.P. 1251/64 filed his representation only on 28-1-1961 and respondent 3 in W.P. 1252/64 filed the representation on 27-2-1961. As both these representations were made after the appointed date, they were not valid representations in the eye of law in view of sub-section (4) of Section 57 and therefore, they had no right to oppose the grant of permit. Having not opposed to grant of permit to the petitioner, they had no right of appeal as per Clause(f) of sub-section (1) of Section 64 of the Act, as only the persons who had opposed the grant of permit are entitled to file an appeal. Therefore he contended that the first respondent had no jurisdiction to entertain the appeals filed by them.

(5) Sri Rangaswamy, appearing for the respondents in question contended that the petitioner himself had impleaded them in his earlier appeal against the refusal to grant permit before the State Transport Appellate Tribunal and as such, it is not open to him now to contend that they have no right to file appeals. He denies that the 3rd respondents' representations were belated. He further contended that even if their representations could not be considered under S. 57(4) of the Act, the representations made by his clients could be treated as if they were made under S. 47 of the Act as they were persons who were operating services on or near the proposed route. He has contended that the words of S. 64(1)(f) are wide and as his clients are persons providing transport facilities who, having opposed the grant of permit, are aggrieved by the grant of permit to the petitioner or any conditions attached thereto, they have got a right of appeal under clause(f) of sub-s. (1) of S. 64 of the Act. He further contended that on the facts of the case the petitioner is not entitled to ask the Court to issue a writ of prohibition.

(6) The provisions of S. 57, so far as they are relevant for the question under consideration, are extracted hereunder:--

'57(1) An application for a contract carriage permit or a private carrier's permit may be made at any time.

(2) An application for a stage carriage permit or a public carrier's permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, or, if the Regional Transport Authority appoints dates for the receipt of such applications, on such dates.

(3) On receipt of an application for a stage carriage permit or a public carrier's permit, the Regional Transport Authority shall make the application available for inspection at the office of the Authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date, not being less than thirty days from such publication, on which, any representations received will be considered:

Provided that, if the grant of any permit in accordance with the application or with modifications would have the effect of increasing the number of vehicles operating in the region, or in any area or on any route within the region, under the class of permits to which the application relates, beyond the limit fixed in that behalf under sub-s. (3) of S. 47 or sub-s. (2) of S. 55, as the case may be, the Regional Transport Authority may summarily refuse the application without following the procedure laid down in this sub-section.

(4) No representation in connection with an application referred to in sub-s. (3) shall be considered by the Regional Transport Authority unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by person making such representation.

(5) When any representation such as is referred to in sub-s. (3) is made, the Regional Transport Authority shall dispose of the application at a public hearing at which the applicant and the person making the representation shall have an opportunity of being heard either in person or by a duly authorised representative.

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Section 64(1)(f) reads as follows:--

'64 (1) any person--

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(f) being a local authority or police authority or an association which, or a person providing transport facilities who, 'having opposed the grant of a permit,' is aggrieved by the grant thereof or by any condition attached thereto, or

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may, within the prescribed time and in the prescribed manner, appeal to the prescribed authority who shall give such person and the original authority an opportunity of being heard.' (Underlining (here into ' ' above) is ours.)

Sri Malimath has strongly relied on the decision in K. Mohamed Peer v. State of Mysore, AIR 1957 Mysore 19. In paragraphs 2 and 3 of the said decision, their Lordships have stated as follows:--

'Section 64 of the Motor Vehicles Act provides for appeals. Clause(f) of S. 64(1) which is the only provision that can apply to a case like the one on hand enables a person providing transport facilities who, having opposed the grant of a permit, is aggrieved by the grant thereof or any condition attached thereto, to prefer an appeal against the grant or the attaching of the condition. The petitioner's contention is that as respondent 2 had not opposed the grant of a permit to the petitioner and as such opposition was a condition precedent to the exercise of the right of appeal, no appeal on this matter could be entertained by Government.

It will be noticed that though an appeal may be preferred not only against the grant of a permit, the

person preferring an appeal should have opposed the grant of the permit itself and it is not enough if his objection related to any condition relating to the permit in question. Even assuming that the timings assigned for running of Stage Carriage Service are to be regarded as a condition attached to the permit, it will be of no avail if a person who wishes to prefer an appeal in regard to such condition has not opposed the grant of a permit itself.

(3) It is not disputed in this cases that respondent 2 did not oppose the grant of a permit to the petitioner. The right of appeal is a creature of statute and it has to be brought within the clear terms of the provision for appeal. In this case, the only clause which can have any bearing on the matter is clearly inapplicable as the condition precedent did not exist.

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Sri Malimath contended that as there was no valid opposition by the respondents in question to the grant of permit to the petitioner and as, such opposition was a condition precedent to the exercise of the right of appeal, the third respondents has no right of appeal. He has stressed before us the mandatory provisions of sub-section (4) of section 57 of the Act, which requires that no representation in connection with an application referred to in sub-section (3) shall be considered by the Regional Transport Authority unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the person making such representation.

(7) Sri Malimath also relied on the decision by a Division Bench of this Court in W.P. 1599 of 1963 (Mys). In paragraph 3 of the said decision, their Lordships have stated as follows :

'By reason of sub-clause (4) of Section 57 of the Act, no representation in connection with an application for a stage carriage permit shall be considered by the R.T.A. unless it has been made in writing before the appointed date. No such representation has been made in the present case, by the petitioner in respect of the application which the first respondent had made for the grant of a stage carriage permit for the route between Bhadravathi and Udipi. The fact that the petitioner was not interested in making any such representation, for the simple reason that he became interested in the matter only at about the time when he made an application for a permit in his own favour on 22-3-1960, cannot in any way alter the fact that no representation of his had been made before the appointed day, viz., 8-8-1959. The position really is, that a person who becomes interested in the matter subsequent to the appointed date referred to in Section 57(4) of the Act, to make any such representation as is contemplated under Section 57(3) of the Act. Therefore, the petitioner has no statutory right to claim that even though he had not made any representations before the appointed date, he is, nevertheless, entitled to be heard in respect of the application which had been made by the first respondent.'

Sri Malimath also relied on the observations of a Division Bench of this Court of which one of us (KSHJ) was a member, in Pancha Sheriff v. D.T. Sundar reported in 1964(2) Mys LJ 113. At page 116, their Lordships have observed:

'If the Regional Transport Authority grants the application, the objectors who had PREFERRED THEIR REPRESENTATIONS WITHIN TIME, have a right of appeal as provided under S. 64.' (Underlining (here in capital) is ours).

(8) Sri Malimath also cited before us Raghunath Patnaik v. State Transport Authority, Orissa, : AIR1951Ori81 , Kashi Ram v. Ram Saroop, AIR 1953 Vindh Pra 41 and Vijay Motor Transport Association v. Mahakoshal Transport Service, AIR 1953 Nag 150. It may be mentioned that the case reported in AIR 1951 Orissa, is a case on all fours with the present case. In the said case Ray, C J. and Narasimham, J. have laid down--

'Where a person files an objection to the grant of a permit to another person long after the period fixed by Section 57(4) is over, he has no right of appeal. Consequently, the Chairman of Provincial Transport Authority has no jurisdiction to hear the appeal filed by such a person and to set aside the order of the Regional Transport Authority.'

(9) Sri Rangaswamy, learned Counsel for respondent 3, has strenuously contended that the petitioner himself impleaded his clients as respondents in the earlier appeal filed by him before respondent 1 as against the order of refusal to grant a permit to him by the Regional Transport Authority, Bangalore, and as such the petitioner cannot now contend that his clients have no right to file appeals. But the point to be considered is whether those parties have a right of appeal under law. The right of appeal being a creature of statute should be expressly conferred. It does not depend on the conduct of the parties. No plea of estoppel was raised nor such a plea could be raised on the facts of these cases. The fact that the petitioner impleaded the parties concerned in the earlier appeals filed by him, cannot confer a right of appeal on them.

(10) Sri Rangaswamy next contended that his clients deny that there was any delay in filing the representations. It may be mentioned that the petitioner has specifically alleged in his affidavits filed in support of his writ petitions that the respondents in question had filed their representations long after the appointed date. He has categorically stated that the said respondents had filed their representation on 27-2-1961 and 28-2-1961, the last date of making representations being 20-2-1961. The petitioner had also taken the same stand before the State Transport Appellate Tribunal (1st respondent). In the counter affidavits filed by the said respondents in both the petitions, there is no specific denial of the fact that the representations filed by them were belated. The third respondent in W.P. No. 1251/64 vaguely stated:

'I deny the averment that the representations are belated'

The third respondent in W.P. No. 1252 of 64 did not put forward even that vague plea. The said respondents carefully refrained from stating the date or dates on which they filed their representations. They had not produced the copies of their representations. Sri Malimath pointed out to us that in the extract of the proceedings of the meeting of the Regional Transport Authority held on 5-4-1961, the dates on which representations were filed by various persons were specifically mentioned. That extract clearly shows that respondent 3 in W.P. No. 1251/64 (K.M. Khaleel Ahamed) made his representation on 28-1-1961 and the respondent No. 3 in W.P. No. 1252/64 (P. Moosa Saheb) made his representation on 27-6-1961. The said document also states that the last date for the receipt of representations was 20-2-1961. We are therefore of opinion that Khaleel Ahmed and Moosa Saheb made their representations after the appointed dates.

(11) Sri Rangaswamy next contended that even though those representations are held to have been made after the appointed date, those representations could be treated as if they were made under S. 47 of the Act. His contention was that his clients are persons providing passenger transport facilities near the proposed route and as such they have got a right to make representations to the Regional Transport Authority against the grant of permit to the petitioner. He contended that the words of clause(f) of S. 64(1) are broad enough to give a right of appeal to any person providing transport facilities, who has opposed the grant of a permit and is aggrieved by the grant of a permit or by any condition attached thereto. In support of that contention he has relied on a Division Bench decision of this Court in W.P. No. 480 of 1963 (Mys.). We are of opinion that this decision is of no assistance to Sri Rangaswamy. In that case, the point for consideration by their Lordships was whether the Regional Transport Authority could refuse to hear a person who filed valid representations in time as required by S. 57(4) of the Act. Their Lordships held that the Regional Transport Authority was wrong in refusing to hear the person though he had filed representations conforming to the requirements of S. 57(4) of the Act. The second question which their Lordships considered in that decision was whether only the persons referred to S. 47 of the Act could make representations under S. 57(4) of the Act. It may be mentioned that this question had been specifically considered and fully dealt with by a Division Bench of this Court, of which one of us (KSHJ) was a member, in N.R. Revenna v. T.V. Mallappa, W.P. No. 836 of 1963 : (AIR 1965 Mys. 258). At page 7 of the said order, their Lordships observed as follows:--

'Therefore, the question for decision is, whether the petitioner is a 'person providing transport facilities, who having opposed the grant of a permit, is aggrieved by the grant thereof'. Can it be said that the petitioner had 'opposed the grant'? If the words 'opposed the grant' mean both written opposition as well as oral opposition, quite clearly the petitioner is one such, because he had been permitted by the R.T.A. at the time of hearing to oppose the grant. Therefore, we have to find out the true import of the words 'a person having opposed the grant'.

In order to find out the import of these words, it is necessary to take into consideration the scheme of the Act. Section 47 of the Act lays down the procedure to be adopted by the Regional Transport Authority in considering an application for a stage carriage permit. Sub-section (1) of that section says:

'A Regional Transport Authority shall, in considering an application for a stage carriage permit, have regard to the following matters, namely :--

(a) the interests of the public generally;

(b) the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken;

(c) the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the places to be served;

(d) the benefit of any particular locality or localities likely to be afforded by the service;

(e) the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending;

(f) the condition of the roads included in the proposed route or area;

AND SHALL ALSO TAKE INTO CONSIDERATION ANY REPRESENTATIONS MADE BY PERSONS ALREADY PROVIDING PASSENGER TRANSPORT FACILITIES BY ANY MEANS ALONG OR NEAR THE PROPOSED ROUTE OR AREA, or by any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government, or by any local authority or police authority within whose jurisdiction any part of the proposed route or area lies:

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(Underlining (here in capitals) is ours).

In view of this provision, the petitioner being a person who provides transport facilities in the proposed route or area, was entitled to make a representation and if he made any representation that had to be taken into consideration by the R.T.A. Now we come to sub-sections (4) and (5) of section 57 of the Act which are important for our present purpose. Section 57 of the Act lays down the procedure to be applied for granting of permits. Sub-sections (4) and (5) of the section read:

'(4) No representation in connection with an application referred to in sub-section (3) shall be considered by the Regional Transport Authority unless it is made by writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the person making such representation.

(5) When any representation such as is referred to in sub-section (3) is made, the Regional Transport Authority shall dispose of the application at a public hearing at which the applicant and the person making the representation shall have an opportunity of being heard either in person or by duly authorised representative.'

In view of these provisions, all representations will have to be made in writing and that before the time prescribed under the notifications. If any representation is made after the date notified, such representation cannot be taken into consideration. Further only persons who have made representations strictly in accordance with sub-section (4) of section 57 of the Act are entitled to a hearing before the Regional Transport Authority (see sub-section (5) of section 57 of the Act). In view of the above provision, R.T.A. cannot hear any one who has not made a written representation. Therefore, if any person who has made a written representation as required by sub-section (4) of section 57, is given a hearing by the R.T.A., he cannot be considered as one who has opposed the grant.

The opposition to the grant, contemplated by section 64(1)(f) is an opposition in accordance with law and not all oppositions however made. We are firmly of the opinion that a person who has not made a written representation as contemplated by S. 57(4) of the Act is not entitled to a hearing before the R.T.A.,

and if he is given a hearing by the R.T.A., either by mistake or by ignorance of law, he cannot be considered as a person who has opposed the grant.

The argument of Sri Puttaswamy, the learned counsel for the petitioner, was that we should read section 64(1)(f) independently of section 57(4) and (5); that section does not say that the opposition should be in writing and therefore any person who has opposed the grant whether orally or in writing is entitled to file an appeal under section 64(1)(f) of the Act. If this contention is accepted and carried to its logical conclusion, it would mean that any person whether he had appeared before the R.T.A. or not, whether he had filed any written objection under section 57 or not, if he had opposed the grant at any time before the grant was made and in any manner, would be entitled to file an appeal. We do not think that such a position was contemplated by the legislature. For very good reason, the Legislature wanted that all those who oppose the grant should formulate their opposition in writing so that they may not shift the ground from stage to stage. Further the Legislature required that written opposition should be submitted before the prescribed time and a copy thereof given to the person who had applied for the grant. All these conditions have been laid down, so that there can be some definiteness about the matter to be enquired into. Without such definiteness the enquiry held is likely to be nebulous in character and it might well nigh be impossible to come to any precise or positive conclusion. An enquiry made where objections can be raised by any and everybody, at the enquiry or before, is bound to be a purposeless enquiry.

For the reasons mentioned above, we are of opinion that though the plain meaning of the words 'person having opposed the grant' may bring within its reach all persons who have opposed the grant in one manner or the other, these words should be given a restricted meaning in view of the scheme of the Act and consequently it should be confined to those who have made representations in accordance with S. 57(4) of the Act.'

(12) It may be mentioned that the concerned respondents in both the petitions, made representations not under section 47 of the Act but under section 57(4) of the Act. But since their representations were made long after the appointed date, they are not valid representations. Sub-section (4) of section 57, prohibits the Regional Transport Authority from considering their representations. Section 64(1)(f) specifically states that ONLY THE PERSON WHO HAS OPPOSED THE GRANT of a permit will have the right of appeal. Those respondents cannot be held to have opposed the grant of permit to the petitioner. Hence, they cannot be held to have any right of appeal under section 64(1)(f). If the contention of Sri Rangaswamy that their representations could be treated as having been made under section 47 of the Act and such representations come within the scope of section 64(1)(f) is held to be correct, then it would lead to curious results. A representation which is not valid under section 57(4) would yet become valid under section 47 and consequently the Regional Transport Authority would be bound to hear him, which in its turn would confer a right of appeal on him. The resulting position is that section 57(4) would become otiose. An interpretation which leads to a conclusion that any provision in an Act is of no effect cannot be lightly reached and ought not to be reached except under exceptional circumstances. If the contention advanced by Sri Rangaswamy is accepted as correct, then a person who has filed valid representations and one who has not filed valid representations have to be treated on the same footing. If that be so, there was no purpose in the Parliament enacting section 57(4). This could never have been the intention of the legislature. If a right of appeal is held to have been conferred on a person who has not filed valid objections as required by section 57(4), it would mean that a person who was not a party before the Regional Transport Authority and who could not have been heard by it would have a right of taking up the matter in appeal. The legislature would not have intended such a situation. We are therefore clearly of the opinion that Sri Rangaswamy's clients (respondent 3) in each of these petitions are not persons who had opposed the grant of a permit to the petitioner and as such they have no right of appeal under section 64(1)(f) of the Act.

(13) Sri Rangaswamy next contended that on the facts of these cases, the petitioner is not entitled to ask for a writ of prohibition, as the question of jurisdiction of the State Transport Appellate Authority to hear the appeals in question is yet to be finally decided in those appeals. In support of his argument, he relied on the decision in A.K. Appanna Setty & Sons Rice and Oil Mills v. S.S. Malimath, AIR 1962 Mys 108. In paragraph 14 of that judgment, their Lordships have observed as follows:--

'Now, there is another principle which incorporates an equally well settled rule. That rule is that if a proceeding is pending before a Tribunal and its jurisdiction to proceed with that proceeding is challenged, the only stage at which prohibition will issue is the stage when the Tribunal decides a jurisdictional fact wrongly and usurp jurisdiction in that way. It is only when the Tribunal steps outside its jurisdiction that a Writ of prohibition may issue; but, if on the contrary, a Tribunal declined to go into a jurisdictional fact at the earliest stage although called upon to do so and proclaims its intention to try that jurisdictional fact along with the other facts in the case, since it would 'not be possible for any one to suggest that there has been any wrong assumption of jurisdiction by an incorrect determination of a jurisdictional fact, no occasion for the issue of prohibition can properly arise.'

We are of opinion that the rule laid down in that case is of assistance whatsoever to Sri Rangaswamy. In this case, the petitioner had specifically raised the question of lack of jurisdiction of respondent 1 to entertain appeals Nos. 415 and 420 of 1964. The Tribunal by its order dated 10-7-1964 not only in a way negatived that contention but has proceeded to pass an interim order which it could have done only if it had jurisdiction to entertain the appeals. In view of the interim order, there is no doubt, that that Tribunal had usurped a jurisdiction which it did not have under law.

(14) In the result, for the reasons stated above these Writ Petitions are allowed. In each of these petitions a Writ of Prohibition will be issued restraining the Mysore State Transport Appellate Tribunal from entertaining appeal Nos. 415 and 420 of 1964 on its file. We also quash its order dated 10-7-1964 in Appeals Nos. 415 and 420 of 1964, impugned in these petitions, by issuing a Writ of Certiorari.

(15) Respondent No. 3 in each of these petitions shall pay the costs of the petitioner. Advocate's fee Rs. 100/-.

(16) Petitioner allowed.