PETITIONER:
K. BALASUBRAMANIA CHETTY
Vs.
RESPONDENT:
N. M. SAMBANDAMOORTHY CHETTY
DATE OF JUDGMENT20/12/1974
BENCH:
BHAGWATI, P.N.
BENCH:
BHAGWATI, P.N.
MATHEW, KUTTYIL KURIEN
UNTWALIA, N.L.
CITATION:
1975 AIR 818 1975 SCR (3) 91
1975 SCC (1) 242
CITATOR INFO :
D 1978 SC 349 (7)
ACT:
Motor Vehicles Act. 1939-S. 64B-Criteria for allotting marks
for grant of permit-Public interest-Considerations for
deciding-Extent of Jurisdiction of the High Court under S.
64B.
HEADNOTE:
The Regional Transport Authority granted a stage carriage
permit to the respondent as against the appellant on the
ground that the former was a single bus operator while the
appellant was an operator having four stage carriage
permits, including a stage carriage permit which was
recently granted to him. The State Transport Appellate
Tribunal, on the other hand, took the view that the
respondent did not have a pucca fire proof building for
workshop,. that it was immaterial whether the sector
experience of the appellant was derived under a temporary
permit or a permanent permit; that the appellant was
entitled to two marks even though the experience gained by
him was by operation of temporary permits, that the history
sheet of the appellant was clean without any adverse remark
and that since a portion of the route fell within the
interior roads it was desirable in public interest to prefer
“an experienced operator instead of single bus operator”.
The Appellate Tribunal,. therefore, found that the appellant
had superior qualifications and was entitled to be preferred
to others.
On a revision application under s. 64B of the Motor Vehicles
Act, 1939 a single Judge of the High Court took the view
that public interest required that in the socialist pattern
of society monopoly should as far as possible be avoided and
a smaller operator with one stage carriage permit should be
preferred to a bigger operator having three or more stage
carriage permits, that the appellant was a recent grantee of
stage carriage permit; that a proper standard of comparison
of the history sheets of the appellant and the respondent
had not been made; and that the respondent was entitled to
two marks on account of sector experience. The order of the
Regional Transport Authority granting permit to the
respondent was, therefore, restored.
Allowing the appeal,
HELD : (1) The High Court was not right in refusing two
marks to the appellant. Clause 3(c) of rule 155A provides
that two marks shall be awarded to the applicant, who. on
the date of the consideration of the application by the
Regional Transport Authority, has been plying a stage
carriage permit on the entire route. It does not contain
any restriction that in order to be entitled’ to these two
marks the applicant should have been plying on the route on
the basis of a permanent permit. What is material is that
the applicant should have experience of plying on the route
and this experience would be there whether plying is done on
a temporary permit or a permanent permit. [94G-H]
(2) The paramount consideration to be taken into account in
determining as to which of the applicants should be selected
for grant of permit always is public interest. [95 B-C]
(3) The mere fact that an applicant has more than one
permit or he is a recent grantee cannot by itself be
regarded as a factor against him in the comparative scale.
Possession of more than one permit also cannot, by itself,
divorced from other circumstances, be regarded as a
disqualification. [96 F; H]
Ajantha Transports (P) Ltd. v. T. Y. K. Transports, [1975] 2
S.C.R. 166, followed.
The High Court was in error in rejecting the claim of the
appellant to the grant of permit by mechanically relying on
the circumstance that the
92
appellant was a multi bus operator having four Stage
carriage permits including a recent grant without
considering how in the light of the other facts and
circumstances, it was correlated to the question of public
interest.’ The four stage carriage permits which the
appellant had were not on the same route and there was no
question of any monopoly being created in his favour if the
permit applied for by him was granted. The possession of
more than one permit by the appellant was a circumstance in
his. favour because according to cl. 3(F) of rule 155A an
applicant operating more than four stage carriages would be
entitled to one mark. [97B-D]
(4) The High Court was 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 respondents. [97H]
(5) In the instant case the, High Court overstepped the
limits of the revisional jurisdiction and treated the
revision application as if it were an appeal. The
jurisdiction of the High Court under s. 64B is as severely
restricted as that under s. 115 of the Code of Civil
Procedure and it is only where there is a jurisdictional
error or illegality or material irregularity in the-
exercise of jurisdiction that the High Court can interfere
under section 64B with an order made by the State Transport
Appellate Tribunal. [98D-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1672 of 1973.
Appeal by special leave from the judgment and order dated
the 9th January, 1973 of the Madras High Court in C.R.P. No.
2486 of 1972.
Y. S. Chitale, C. S. Prakasa Rao and A. T. M. Sampath, for
the appellant.
K. S. Ramamurthy, V. Subramanian and Vineet Kumar, for the
respondent.
The judgment of the Court was delivered by
BHAGWATI J.-There were fifteen applicants before the
Regional Transport Authority, Chingleput for grant of a
stage carriage permit to ply a bus on the route Red Hills to
Kancheepuram. This route covers a distance of 501 miles of
81.27 kilometers and is a ‘long :route,’ within the meaning
of that expression as used in rule 155A of the Motor
Vehicles Rules, 1940. Out of fifteen applicants, only two
are before us, namely, the appellant and the respondent.
The appellant was applicant No. 7, while the respondent was
applicant No. 6. The Regional Transport Authority, after
considering the applications, made an order dated 19th June,
1971 granting the permit to the respondent, though on
marking according to the provisions contained in clause (3)
of rule 155A, the respondent obtained only 7.40 marks as
against 9.00 marks obtained by the appellant. The main
ground ,on which the Regional Transport Authority preferred
the respondent to the appellant was that the respondent was
a single bus operator, while the appellant was a multi bus
operator having four stage carriage permits including a
stage carriage permit recently granted to him.
The appellant and seven other applicants, who were aggrieved
by the decision of the Regional Transport Authority,
granting a permit to the respondent, preferred appeals
before the State Transport Appellate Tribunal impleading the
respondent as the opposite party in the appeals. The State
Transport Appellate Tribunal took the. view that at tile
date of the consideration of the applications by the
Regional Transport
93
Authority, the respondent had a workshop but it was housed
only in a thatched shed and not in a pucca fire proof
building and the respondent was, therefore, not entitled to
two marks under clause (3) (E) of rule 155A and his total
marks should, therefore, have been 5.40 and not 7.40. The
Regional Transport Authority had refused to grant two marks
to the appellant on account of sector qualification on the
ground that he had been plying only on temporary permits but
this view did not find favour with the State Transport
Appellate Tribunal which held that under clause (3) (C) of
rule 155A it was immaterial whether sector experience was
derived by an applicant under a temporary permit or a
permanent permit and the appellant was, therefore, entitled
to two marks under that clause on account of sector
experience even though gained by operation on temporary
permits. So far as the past record was concerned, the State
Transport Appellate Tribunal relied heavily on the fact that
the history sheet of the appellant was clean without any
adverse entry while the respondent had one adverse entry in
the history sheet relating to his single stage carriage and
four adverse entries in the history sheet relating to his
lorry operation. The State Transport Appellate Tribunal
also pointed out that a portion of the route fell within the
interior roads and it was, therefore, desirable in public
interest to prefer “an experienced operator instead of
single bus operator”. Having regard to these considerations
the State Transport Appellate Tribunal set aside the order
of the Regional Transport Authority granting permit to the
respondent. The State Transport Appellate Tribunal then
proceeded to consider who amongst the appellants before it
deserved to be granted permit. After considering the claim
of the appellants before it, the State Transport Appellate
Tribunal took the view that since the appellant had higher
marks which reflected his superior qualifications and was an
experienced operator with a clean history sheet, he was
entitled to be preferred to the other appellants and in this
view, the State Transport Appellate Tribunal, by an order
dated 23rd September, 1972, granted permit to the appellant.
The respondent thereupon preferred a revision application to
the High Court under section 64B of the Madras Vehicles Act,
1939. The learned Single Judge, who heard the revision
application, held that the State Transport Appellate
Tribunal had acted with material irregularity in exercise of
its jurisdiction in preferring the appellant to the
respondent for the grant of permit. There were in the main
five reasons which prevailed with the learned Single Judge
in taking this view in favour of the respondent. First, the
learned Single Judge held that though according to the
provisions for marking contained’ in clause (3) of rule 155A
the appellant had admittedly more marks than the respondent,
that was not’ a determinative factor because rule155A was
itself subject to the overriding consideration of public
interest emphasised in section 47(1) of the Act and public
interest required that in the socialist pattern of society
which we had adopted monopoly should as far as possible be
avoided and a smaller operator with one stage carriage
permit should be preferred to a bigger operator having three
or more stage carriage permits. This important consi-
deration was ignored by the State Transport Appellate
Tribunal in
94
preferring the appellant to the respondent. Secondly, the
State Transport Appellate Tribunal had over looked the, fact
that the appellant was a recent grantee of a stage carriage
permit though it was a relevant circumstance which weighed
against the appellant in the process of comparison with the
respondent. Thirdly, a proper standard of comparison was
not applied in considering the rival claims of the appellant
and the respondent. Though the history sheet of the res-
pondent in regard to his performance, as a lorry operator
was scanned by the State Transport Appellate Tribunal over a
period of ten years, no such scrutiny was made in the case
of the appellant of the history sheet relating to his stage
carriage operation for the past ten years and this vitiated
the order of the State Transport Appellate Tribunal.
Fourthly, the respondent was entitled to two marks on
account of workshop under clause (3) (E) of rule 155A and
these had been wrongly denied by the State Transport
Appellate Tribunal, and lastly, the appellant was not
entitled to two marks on account of sector experience under
clause (3) (C) of rule 155A since the sector experience
claimed by him was on the basis of operation on temporary
permits. The learned Single Judge accordingly allowed the
revision application and set aside the order of the State
Transport Appellate Tribunal granting permit to the
appellant. The result was that the order of the Regional
Transport Authority granting permit to the respondent was
restored. The appellant was obviously aggrieved by this
order made by the learned Single Judge and he accordingly
preferred the present appeal with special leave obtained
from this Court.
We will first dispose of the last two reasons which
prevailed with the learned Single Judge in interfering with
the order of the State Transport Appellate Tribunal. So far
as the claim of the respondent ‘for two marks in respect of
workshop under clause (3) (E) of rule 155A is concerned, we
agree with the learned Single Judge that the ‘State
Transport Appellate Tribunal was in error in refusing that
claim. ‘The Regional Transport Officer under instructions
from the Regional Transport Authority inspected the workshop
of the respondent and found that it was in a pucca fire
proof building and the respondent was accordingly entitled
to two marks under clause (3) (E) of rule 155A. But that
would not make any difference because even with these two
marks, the total number of marks of the respondent would not
exceed 7.40 as against 9 marks of the appellant. Moreover,
,these 9 marks, do not include two marks on account of
sector experience under clause (3) (C) of rule 155A. The
State Transport Appellate Tribunal gave two marks to the
appellant on account of sector experience but the learned
Single Judge took a different view. We do not think the
learned Judge was right in refusing two marks to the
appellant on this count. Clause (3) (C) of rule 155A
provides that two marks shall be awarded to the applicant
who on the date of consideration of the application by the
Regional Transport Authority has been plying a stage
carriage on the entire route:. It does not contain any
restriction that in order to be entitled to these two marks
the applicant should have been plying on the route; on the
basis of a permanent permit. It is immaterial whether the
applicant has been plying ton the route on a temporary
permit or a permanent permit. What is
95
material is that the applicant should have experience of
plying on the route and this experience would be there
whether plying is done on a temporary permit or on a
permanent permit. The appellant was, therefore, entitled to
two marks on account of sector experience under clause
(3)(C) of rule 155A and that would raise his total number of
marks to 11. The position, therefore, was that the
appellant was entitled to 11 marks as against 7.40 of the
respondent.
But that by itself would not be determinative of the
controversy. The paramount consideration to be taken into
account in determining as to which of the applicants should
be selected for grant of permit always is public interest.
Section 47(1) provides in so many words that the Regional
Transport Authority shall, in considering an application for
a stage carriage permit have regard inter alia, to ”the
interest of the public generally”, and this is a
consideration which must necessarily outweigh all others.
It is ultimately on the touchstone of public interest that
selection of an applicant for grant of permit must be
justified. Clause (3) of rule 155A undoubtedly provides for
giving of marks to the rival applicants but the number of
marks obtained by each applicant can only provide a guiding
principle for the grant of permit. It can never override
the consideration of public interest which must dominate the
selection in all cases. In fact clause (4) of rule 155A
concedes that after the applicants are ranked according to
the total marks obtained by them the applications shall be
disposed of in accordance with the provisions of section
47(1). The fact that the appellant had 11 marks as against
7.40 of the respondent would certainly be a factor in favour
of the appellant, but notwithstanding his higher marks, if
public interest so requires, he may have to yield place to
the respondent in the matter of selection for grant or
permit.
Now, two circumstances were relied upon by the learned
Single Judge for outweighing the higher marks obtained by
the appellant and justifying the grant of permit to the
respondent in public interest. The first was that the
respondent was a single bus operator while the appellant was
a multi bus operator having four stage carriage permits and
the second was that one of the stage carriage permits was
recently granted to the respondent and hence he was in terms
of the ‘motor vehicle jurisprudence’ a “recent grantee”.
Both these circumstances by themselves are not sufficient to
constitute such requirement of public interest as to
outweigh the higher marks obtained by the appellant. This
Court had occasion to consider in Ajantha Transports (P)
Ltd., Coimbatore v. M/s. T. V. K. Transport, Pulampatti,
Coimbatore Dist.(1) the relevance of possession of more than
one permit as also recent grant in selecting an applicant
for grant of permit and Beg, J., speaking on behalf of the
Court, stated the law on the subject in the following words
:
“It should be clear when the main object, to
which other considerations must yield in cases
of conflict, of the permit issuing powers
under sec. 47 of the Act is the service of
(1) [1975] 2 S.C.R. 166.
96
interest of the public generally, that any
particular fact or circumstances, such as a
previous recent grant in favour of an
applicant or the holding of other permits by
an operator, cannot by itself, indicate how it
is related to this object. Unless, there are
other facts and circumstance which link it
with this object the nexus will not be
established. For instance, an applicant may
be a recent grantee whose capacity to operate
a transport service efficiently remains to be
tested so that a fresh grant to him may be
premature. In such a case, another applicant
of tested efficiency may be preferred. On the
other hand, a fresh grantee may have within a
short period, disclosed such superiority or
efficiency or offer such amenities to
passengers that a recent grant in his favour
may be no obstacle in his way at all. Again,
the fact that an applicant-is operating other
motor vehicles on other permits may, in one
case, indicate that he had excee
ded the
optimum, or, has a position comparable to a
monopolist, but, in another case, it may
enable,- the applicant to achieve better
efficiency by moving towards the optimum which
seems to be described as a “viable unit” in
the rules framed in Madras in 1968. Thus, it
will be seen that, by itself, a recent grant
or the possession of other permits is neither
a qualification nor a disqualification
divorced from other circumstances which could
indicate low such a fact is related to the
interests of the public generally. It is only
if there are other facts establishing the
correlationship and indicate its advantages or
disadvantages to the public generally that it
will become a relevant circumstance. But, in
cases where everything else is absolutely
equal as between two applicants, which will
rarely be the case, it could be said that an
application of principle of equality of oppor-
tunity, which could be covered by Article 14,
may enable a person who is not a fresh grantee
to obtain a preference.”
It would, therefore, be seen that the mere fact that an
applicant has more than one permit or he is a recent grantee
cannot by itself be regarded as a factor against him in the
comparative scale. It would all depend on the facts and
circumstances of each case. As ‘pointed out by Beg, J., in
the case just cited : “an applicant may be a recent grantee
whose capacity to operate a transport service efficiently
remains to be tested so that a fresh grant to him may be
premature on the other hand. a fresh grantee may have within
a short period disclosed such superiority or efficiency or
offer such amenities to passengers that a recent grant in
his favour may be no obstacle in his way at all–a recent
grant could not, considered by itself and singly, be,
converted into a demerit”. Similarly, possession of more
than one permit also cannot by itself, divorced from other
circumstances, be regarded as a disqualification. It may in
a given case show that the applicant has already reached the
viable unit of five stage carriages contemplated under
‘clause (3) (F) of rule 155A or that the effect of granting
permit to him would be to make him a monopolist on the
route–a result disfavoured by the decision of this Court in
Sri Rama
97
Vilas Service (P) Ltd. v. C. Chandrasekharan & Ors.(1) as
being inconsistent with the interest of the general public-
or, on the other hand, it may be a circumstance in his
favour enabling him to achieve greater efficiency by moving
towards the optimum of viable unit. The learned Single
Judge, was, therefore, in error in rejecting the claim of
the appellant to the grant of permit by mechanically relying
on the circumstance that the appellant was a multi bus
operator having four stage carriage permits, including a
recent grant without considering how in the light of the
other facts and circumstances, it was correlated to the
question of public interest. There was nothing to show that
this circumstance would have, any prejudicial or adverse
impact on public interest, if permit were granted to the
appellant notwithstanding it. The four stage carriage,
permits which the appellant had were not on the same route
and there was no question of. any monopoly being created in
his favour if the permit applied for by him were granted.
In fact, possession of more than on& permit by the appellant
was a circumstance in his favour, because according to
clause (3)(F) of rule 155A an applicant operating in more
than four stage carriages would be entitled to one mark for
each stage carriage in order to have a viable unit of five
carriage. The principle laid down in clause (3) (F) of rule
155A proceeds on the hypothesis that an applicant would be
able to achieve greater efficiency if he has a larger number
of stage carriages, but it sets a limit of five stage
carriages as it was thought that that would be sufficient to
constitute a viable unit which could legitimately be
permitted to an applicant, consistently with the requirement
of a socialistic pattern of society that there should be
distributive or social justice and no undue economic
disparities. So long, therefore, as an applicant has not
more than four stage carriages, it cannot by itself be
regarded as a factor against him and, as pointed out by Beg,
J., in the case cited above, the rule in clause (3) (F) of
rule 155A providing for giving of one mark to the applicant
for each stage carriage operated by him should be taken into
account unless there is good enough reason to depart from
it. “Every additional stage carriage upto four would give
an applicant an additional mark so as to help him to make up
a viable unit of five”. The State Transport Appellate
Tribunal was, therefore, right, in the circumstances of the
case, in not regarding possession of four stage carriage
permits by the appellant, including a recent grant, as a
circumstance against him, but treating it as a circumstance
in his favour by adding four marks under clause (3) (F) of
rule 155A, and the learned Single Judge acted erroneously in
upsetting this view taken by the State Transport Appellate
Tribunal.
The learned Single Judge was also in error in holding,
thatthe same standard was not applied by the State
Transport AppellateTribunal in comparing the history sheets
of the appellant and therespondent. The history sheet of
the appellant related only to hisperformance as stage
carriage operator and the entire history sheetwas before
the State Transport Appellate Tribunal and it showedthat
the appellant had a clean record. On the other hand,
the respondent
(1) [1964] 5 S.C.R. 869.
-L379 Sup.CI/75
98
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 of ten years while
that of the appellant as a stage carriage, perator covered a
shorter period, but that cannot 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 lie 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.
Before we part with this case we may point out that the
learned Single, Judge overstepped the limits of his
revisional jurisdiction and treated the revision application
before him as if it wore an appeal. That was clearly
impermissible as the revisional jurisdiction of the High
Court under section 64B is as severely restricted as that
under section 115 of the Code of Civil Procedure and it is
only where there is a jurisdictional error or illegality or
material irregularity in the exercise of jurisdiction that
the High Court can interfere under section 64B ,with an
order made by the State Transport Appellate Tribunal.
We must, therefore, set aside the judgment of the learned
Single Judge and restore the order made by the State
Transport Appellate Tribunal granting permit to the
appellant. The appeal is accordingly allowed. The
respondent will pay the costs to the appellant.
P.B.R. Appeal allowed.
99