R.S.R.T.C. Vs. R.T.A. and anr. - Court Judgment

Excerpt:
constitution of india - article 226 and motor vehicles act, 1939--section 57(3)--alternative remedy is rule of expediency--writ pending for last 4 years--held, it is not proper exercise of extra ordinary jurisdiction to dismiss it on ground of non exhausting of alternative remedy.;the rule of exhausting the statutory alternate remedy is a rule of expediency and it is not hard and fast rule. it depends on case to case. since the writ petition is pending here for more than four years and now at this distance of time to dismiss the writ petition on the ground of alternate remedy of appeal being available to the petitioner will not be a proper exercise of the extra-ordinary jurisdiction.;(b) motor vehicles act, 1939 - section 57(3) and motor vehicles act, 1988--renewal of permit obtained by abusing process of high court--held, order cannot be sustained, and (ii)--application for grant of non-temporary stage carriage permit under old, act--held, proceedings be disposed of under old act.;the corporation whose application was pending and it was in the knowledge of the respondent no. 2 still he deliberately did not bring this fact to the notice of this court nor did it implead the corporation as a party and obtain a renewal without the application of the corporation being considered. therefore, the order obtained from the rta by utilising the process of this court and in violation of the law.;it is true that the motor vehicles act, 1988 has come into force but since it was a case of the petitioner for consideration of its application for grant of non-temporary stage carriage permit under the motor vehicles act, 1939, therefore those proceedings shall continue to be disposed of under the old act.;writ allowed - - 10.12.1987 is appealable under section 64 of the motor vehicles act, 1939, therefore, this writ petition should be dismissed on the ground as the petitioner has failed to exhaust the statutory alternate remedy. 10.12.1987 is also bad because it should have considered all pending applications including that of corporation in view of ratio laid down in the case of smt. this abuse of the process of this court cannot be permitted and it has to be condemned. the rule of simultaneous consideration has been evolved on the principle of justice and fair play and in a public interest so that larger number of applications may come up for consideration and the best amongst them may be selected. such application would become ripe for consideration long before the expiry of the permit and if such person manipulates to get the same published in the gazette inviting objections as well as getting it fixed for consideration, the others, who might be waiting under the impression that there was long time in the expiry of the permit, will be excluded from consideration on that route if the rule of the simultaneous consideration is strictly adhered to.a.k. mathur, j.1. both these writ petitions involve common question of law and facts, therefore, they are disposed of by this common order. for the convenient disposal of these two writ petitions, the facts given in the case of rsrtc v. rta, bikaner in s.b. civil writ petition no. 914 of 1988 are taken into consideration.2. the brief facts which are necessary for disposal of this writ petition are that the petitioner is a corporation created under the rajasthan road transport corporation act, 1950 (hereinafter referred to the act of 1950). in bikaner region there is a route known as dungargarh-beedasar via dharmas, reddi, banna etc. in a length of 48 kms. and is 'a' class in nature. the respondent no. 2 held a non-temporary stage carriage permit covering vehicle no. rjf-3016 of 1967 model having its validity upto 22.2.1988. the respondent no. 2 submitted an application for the renewal of his permit on 11.6.87 which came to be published by the respondent no. 1 in the rajasthan rajpatra dt. 20,8,1987 under section 57(3) of the motor vehicles act, 1939 (hereinafter referred to the act of 1939) for the purpose of inviting objections. the petitioner corporation published a draft scheme under section 68-c of the act for nationalising the above route and same was published in the rajasthan rajpatra dated 25.7.1986. the petitioner submits that a number of draft schemes under section 68-c of the act of 1939 for various routes were prepared and got published by the petitioner-corporation in the rajasthan rajpatra dt. 25.7.1986 which included this draft scheme also. one yaduraj singh and two others filed writ petition being s.b. civil writ petition nos. 1638/1986, 1640/1986 and 1941/1986 in the jaipur bench and the jaipur bench allowed the writ petitions and set aside the aforesaid notification. aggrieved against this, three appeals were preferred by the corporation and the division bench by its judgment dated 17.12.1987 allowed all these appeals of the petitioner and set aside the view taken by the learned single judge. the petitioner submitted that the respondent no. 2 realised that he will not be able to obtain a renewal of his permit as same cannot be refused to corporation when it makes an application under section 68-f(1-a) of the act of 1939. the petitioner when came to know that the respondent no. 2 and his likes are taking steps for getting renewal of their permits from the respondent no. 1 rta by circulation, the petitioner for opposing the renewal application of the respondent no. 2 and his likes moved five applications for grant of non-temporary stage carriage permits the rta, bikaner on 27.10.1987. copy thereof has been placed on record as ex. r/1.the secretary of the respondent no. 1 prepared a circulation note on 4.11.1987 and the same was sent for necessary action to the member, regional transport authority who on 7.11.1987 ordered that the application for grant of non- temporary stage carriage permits filed by the petitioner corporation be enclosed with the said note. thereafter the matter was put up on 13.11.1987 and on 13.11.1987 counsel for the respondent no. 2 and his likes appeared and sought time to produce a copy of the writ petition which is said to have been filed by one of the existing operators of the route and the respondent no. 1 adjourned the matter to 16.11.1987. on 16.11.1987 a copy of the writ petition no. 3101/1987 was filed before the rta and the matter was adjourned for arguments on 18.11.1987 and then on 10.12.1987. on 10.12.1987 the counsel for the respondent no. 2 and his likes produced an order of this court passed in d.b. civil writ petition no. 3101/1987 dated 3.12.1987 directing the respondent no. 1 to consider and decide the application of the respondent no. 2 on 10.12.1987 fixed in the matter. the corporation was not impleaded in this writ petition. the respondent no. 2 despite the fact that the petitioner submitted an application for grant of non-temporary stage carriage permit against the renewal application of the respondent no. 2 and his likes on 27th november, 1987 did not take a proper step for getting application of the petitioner corporation published under section 57(3) of the act of 1939 for grant of a non-temporary stage carriage' permit against the renewal of the respondent no. 2 and his likes. finally by the order dated 10.12.1987 the respondent no. 1 granted a renewal in favour of the respondent no. 2 for a period of five years. notwithstanding the fact that the corporation has tiled an application for grant of permit against the renewal of the respondent no. 2. aggrieved against this order dated 10.12.1987, the present writ petition has been filed by the corporation challenging the aforesaid order on the ground that the order of the respondent no. 1 is invalid as the application of the petitioner was pending and that could not have been ignored without being considered. apart from this it is submitted that the corporation has a prior claim for grant against the renewal. it is submitted that to the exclusion of the corporation an order was obtained from this court directing the rta to dispose of the matter on 10.12.1987 without corporation being added as a party respondent and the respondent no. 2 obtained the order of renewal by abusing process of this court.3. no reply has been filed by any of the respondents.4. mr. maheshwari, learned counsel for the respondent no. 2 has raised a preliminary objection that this writ petition should be dismissed on the simple ground that the impugned order dt. 10.12.1987 is appealable under section 64 of the motor vehicles act, 1939, therefore, this writ petition should be dismissed on the ground as the petitioner has failed to exhaust the statutory alternate remedy. in support thereof the learned counsel has invited my attention to the decision given in sidh karan v. rta, bikaner and another reported in 1986 (1) judicial surveyor, 61 and d.b. civil writ petition no. 2974 of 1987 rsrtc, jaipur v. rta, bikaner and another decided on 8.9.1988 and s.b. civil writ petition no. 2336 of 1988 ismail mohd. v. rta, udaipur and ors. decided on 13.3.1992.5. it is true that the petitioner had an statutory alternate remedy and before approaching this court he should have resorted to that remedy. but this writ petition is of 1988 and it has come up for disposal after four years, therefore, it will not be proper to dismiss this writ petition on this ground that the petitioner had an statutory alternate remedy. the rule of exhausting the statutory alternate remedy is a rule of expediency and it is not hard and fast rule. it depends on case to case. since the writ petition is pending here for more than four years and now at this distance of time to dismiss the writ petition on the ground of alternate remedy of appeal being available to the petitioner will not be a proper exercise of the extra-ordinary jurisdiction, therefore, in this peculiar facts and circumstances of this case, i am not inclined to uphold the preliminary objection of mr. maheshwari and the same is over- ruled.6. the next question is that whether the resolution of the rta dt. 10.12.1987 is alid or not. it is true that an application was moved by the corporation on 27.2.1987 for grant of permit against the renewals and the rta was cognizant of that fact as it appears from the circulation note. it is also a fact that if the application of the corporation was to have been taken into consideration then the petitioner would not have obtained a renewal as under section 68-f(1-a) the corporation would have got the priority and even otherwise by virtue of the rajasthan amendment under section 58 of the motor vehicles act, the corporation would have a prior claim for a grant of a permit, than the petitioner. the rajasthan amendment reads as under:in its application to the state of rajasthan, after the second proviso, add the following proviso, namelyprovided further that other conditions being equal, an application for a stage carriage permit by a state transport undertaking, as defined in section 68a, shall be given preference over application from individual owners and cooperative societies (raj.) act. 10 of 1974, section 3 (w.r.e.f. 5.2.1973).mr. munshi, learned counsel for the petitioner submitted that in fact the respondent no. 2 manoeuvred the consideration of his renewal application in such a manner that the corporation's application was excluded from consideration and obtained order of this court on 3.12.1987 in a most innocuous manner directing the rta to dispose of the renewal application of the petitioner when in fact the period of the petitioner's permit was to expire on 22.2.1988. mr. munshi learned counsel for the petitioner submitted that the petitioner has abused the process of this court. he has further submitted that resolution of rta dt. 10.12.1987 is also bad because it should have considered all pending applications including that of corporation in view of ratio laid down in the case of smt. mithlesh kumari v. state and ors. d. b. civil special appeal no. 179/1982, decided on 22.10.1982 by the jaipur bench.7. mr. maheshwari, learned counsel for the respondent has submitted that in fact the application of the corporation was not ripe on account of corporation being not vigilent. learned counsel submitted that if the corporation had been vigilant, their application would have been published and corporation's application would have been considered. learned counsel has invited my attention to the decision in a case of lallu narain v. rta, jaipur and ors. ilr 1970 (rajasthan), 16, tilokchand motichand and ors. v. h.r. munshi, commissioner of sales tax, bombay and anr. : [1969]2scr824 and rsrtc, jaipur v. state and anr. 1981 wln (uc), 212.8. i have considered the rival submissions of both the parties.9. it is true that at the time of consideration of renewal application of the respondent no. 2 on 10.12.87, the application of the corporation was not ripe for consideration because same was not published. but at the same time the rta was cognizant of the fact that the application is pending. then the matter was adjourned from time to time till it was disposed of. till that time the application moved by the corporation dated 27.10.1987 for grant of non-temporary stage carriage permit was not published. meanwhile respondent no. 2 moved a writ petition before this court being d.b. civil writ petition no. 1301/1987 and this court in an innocuous manner directed the rta on 3.12.1987 to decide the application of the respondent no. 2 on 10.12.1987. the order reads as under:heard.the petitioner is holder of a non temporary stage carriage permit covering bus no. rjl 6371 on the existing doongargarh to bidasar via reddy route. he submitted an application for the grant of the renewal of the said permit for a further period of five years. along with him, four other persons have also applied for the renewal of their permits on the said route. notification has also been published in the rajasthan-gazette. the rta was to consider the matter of the renewal of the permits on 5.11.1987 but it was not done. the next meeting is going to take place on 10.12.1987. the petitioner prays that the respondents may be directed to consider the question of renewal of the permits on 10.12.1987. the prayer is proper.in the result; we allow the writ petition and direct the respondents to consider the petitioner's application for renewal on doongargarth to bidasar via reddy route which is an existing route in bikaner region in its meeting which is going to take place on 10.12.1987 or by circulation.the writ petition shall stand disposed-of accordingly.this was most innocuous order as it was not disclosed in the writ petition that any other application against the renewal has been filed by the corporation. if this fact has been brought to the notice of this court against this renewal application of the petitioner, the corporation has also filed an application for grant of non-temporary stage carriage permit and perhaps this order would not have passed by this court. the corporation was not impleaded as a party, therefore, the respondent no. 2 manoeuvred to obtain an order of this court directing the rta to dispose of the renewal application of the petitioner on 10.12.1987 when the matter is brought before it or by circulation. the rta had no choice but to comply with the order of this court and granted the renewal in favour of the respondent no. 2' as the application of the corporation was not ripe for consideration. this is nothing but abuse of the process of this court. the conduct of the respondent no. 2 is highly undesirable as they have abused the process of this court and obtained an order from this court without disclosing the correct facts that the corporation application is pending. this kind of manoeuvring employed by the respondent no. 2 is a deprecable. this abuse of the process of this court cannot be permitted and it has to be condemned.10. mr. munshi, learned counsel has invited my attention to the observation made by the division bench in the case of smt. mithlesh kumari (supra) wherein the division bench has observed as under:however, the rule of simultaneous consideration is not a statutory rule but is a judge made law. the rule of simultaneous consideration has been evolved on the principle of justice and fair play and in a public interest so that larger number of applications may come up for consideration and the best amongst them may be selected. however, this rule cannot be applied with rigidity especially in the case of grant of renewal of existing permits. in such cases the proper course adopted should be that all applications which become ripe for consideration till the terms of a permit of an existing operator expires, should all be considered together before the grant of renewal (sic) of permit in favour of a new person. this course, in our view, may alone be just and reasonable, otherwise an existing operator by moving an application for renewal much in advance may exclude the other persons totally. to illustrate, an existing operator is required to apply for a renewal of a permit not less than 120 days before the date of its expiry. there is no time limit of submitting such application earlier to 120 days. the only limitation is that it should be made not less than 120 days before the date of its expiry. thus, it can be filed even one or more year before its expiry. such application would become ripe for consideration long before the expiry of the permit and if such person manipulates to get the same published in the gazette inviting objections as well as getting it fixed for consideration, the others, who might be waiting under the impression that there was long time in the expiry of the permit, will be excluded from consideration on that route if the rule of the simultaneous consideration is strictly adhered to. as in case before us if the principle as laid down by kan singh & shiv charan lal's case and approved in the subsequent authorities is adhered to the crucial date, would be 10th december, 1980 when the rta decided to convene a meeting for consideration of such application. this would mean that only application pending before the rta till 10th december, 1980, should have been considered along with the application of the appellant. in our view, the above principle cannot be extended to apply in cases where there was a long time intervening in the expiry of the period of existing permit holder. it cannot also be laid down on a hard ana fast rule that the rta has no power to adjourn the meeting and it would depend on the various facts and circumstances whether adjournment should be granted or not.11. the division bench has taken a very pragmatic approach in such mailer and it is emphasised that since the principle of simultaneous consideration is not applicable for renewal but a fair play and justice requires that all applications which are pending for consideration till the terms of the permit of an existing operator expire should be considered together before a grant of renewal or for grant for a permit in favour of a person. it is held that this is a just and reasonable approach otherwise an existing operator by moving an application for renewal much in advance may exclude the other persons totally.12. in the present case the respondent no. 2 has successfully manoeuvred to oust the consideration of the corporation's application and for accomplishing this manoeuvring the respondent no. 2 has utilised the process of this court by obtaining an order from this court on 3.12.1987 directing the rta to consider the application of renewal of the respondent no. 2 by circulation on 10.12.1987 and dispose of the same. the corporation whose application was pending and it was in the knowledge of the respondent no. 2 still he deliberately did not bring this fact to the notice of this court nor did it implead the corporation as a party and obtain a renewal without the application of the corporation being considered. therefore, the order obtained from the rta by utilising the process of this court and in violation of the law laid down in the case of smt. mithlesh kumari (supra) the order of the rta dated 10.12.1987 cannot be sustained.13. the next question is that now the motor vehicles act, 1988 has come into force, therefore, whether this court should interfere in this matter or not. had it been a simple matter without there being any abuse of the process of this court i would not have interfered in the matter as a period of five years is likely to expire shortly but the fact that the petitioner has abused the process of this court, therefore, i have delve into the matter deeply so that in future the process of this court may not be abused by such persons.14. it is true that the motor vehicles act, 1988 has come into force but since it was a case of the petitioner for consideration of its application for grant of non-temporary stage carriage permit under the motor vehicles act, 1939, therefore,those proceedings shall continue to be disposed of under the old act. in this connection a reference may be made to the decision given in a case of m/s gumcharan singlt baldev singh v. yashwant singh and ors. : air1992sc180 . in that case similar question came up before the hon'ble supreme court that the rta can grant a renewal under the old act and the hon'ble supreme court referring to section 217(2)(4) of the motor vehicles act, 1988 has taken the view that the application for renewal of a such stage carriage permit made under the old act is saved. it was observed as under:the application filed by an operator for renewal of his permit under section 58 of the motor vehicles act, 1939, does not become extinct after coming into force of motor vehicles act, 1988. renewal of permit being a right within meaning of clause (c) of section 6 of general clauses act the application survives and continues despite repeal of 1939 act.therefore, the submission of mr. maheshwari that now the application of the petitioner for renewal cannot be considered, is not sustainable as the legal position has already been crystalised by the decision of the hon'ble supreme court.15. in the result, i allow this writ petition and the s.b. civil writ petition no. 915/1988 and quash the resolution of the rta dt. 10.12.1987 granting the renewal in favour of the respondent nos. 2 i.e. vimal kumar s/o shri ridh karan and smt. jamna devi w/o shri nihal chand and direct that the rta shall consider the applications of the corporation in accordance with the law. the petitioner corporation is entitled to a cost of rs. 5,000/- from each of the respondents.