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Tamil Nad Transport,... v. Coimbatore Motor Tra...
Factual and Procedural Background
The Regional Transport Authority initially preferred the petitioner for a permit on the town route from Coimbatore Railway Station to Saravanampatti by applying a criterion that gave preference to the person with the smallest number of buses (the petitioner had six permits; the first respondent had nine). The Tribunal set aside that decision, concluded that the marking system under the Government Order (G.O.) should be applied instead, and followed the marking system. The Tribunal found that the petitioner and the first respondent obtained equal marks. On that equality it preferred the first respondent for two reasons: (1) the first respondent had a better history-sheet; and (2) being a Co-operative Society, the first respondent was entitled, in view of the equality of marks, to the benefit of the proviso to Section 47(1) of the Motor Vehicles Act. The Tribunal accordingly granted the permit to the first respondent. The petitioner filed the present petition to quash the Tribunal's order.
Legal Issues Presented
- Whether the Tribunal misdirected itself in applying the proviso to Section 47(1) of the Motor Vehicles Act — specifically whether the phrase "other conditions being equal" in that proviso refers only to clauses (a) to (f) of sub-section (1) of Section 47, and not to equality of marks assigned under the Government Order's marking system.
- Whether the proviso to Section 47(1) could be invoked in favour of the first respondent when the first respondent had already received one mark under the Government Order for being a Co-operative Society (i.e., whether applying the proviso would amount to giving the first respondent a double preference).
Arguments of the Parties
Petitioner's Arguments
- The Tribunal erred in applying the proviso to Section 47(1) because the words "other conditions being equal" refer to the circumstances enumerated in clauses (a) to (f) of Section 47(1), not to equality of marks under the Government Order's marking system.
- Once the first respondent had been allotted one mark under the Government Order for being a Co-operative Society, the proviso could no longer be invoked in its favour (invoking it would amount to impermissible double preference).
Argument Noted from the Advocate General (as reported in the opinion)
- The Advocate General contended that application of the proviso would result in giving the first respondent a double preference — on the assumption that the one mark under the marking system already took into account the preference contained in the proviso to Section 47(1).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| M.P Uthandi Mudaliar Sri Shivaji Motor Service Vellore v. North Arcot Dt. Co-operative Motor Transport Society for Ex-Servicemen Ltd., Vellore, WA No. 52 of 1958 (Mad) | Interpreting the phrase "other conditions being equal" in the proviso to Section 47(1) as referring to clauses (a) to (f) of Section 47(1); observing that the columns in the marking system did not directly correspond to those clauses. | The court noted that this Division Bench seemed inclined to that view, quoted its observation, and distinguished that decision on the ground that it related to an earlier Government Order with a different scheme of marks; therefore the earlier decision did not govern the present marking system under the then-current Government Order. |
| Tirunelveli Co-operative Motor Transport Society for Ex-Servicemen Ltd., Palayarokottai v. State Transport Appellate Tribunal, W.A No. 1 of 1958 (Mad) | The opinion notes this authority but does not attribute a conflicting rule; it states that this decision did not say anything in conflict with the view in WA No. 52 of 1958. | The court observed that this decision did not appear to conflict with the other cited Division Bench decision and thus did not alter its treatment of the present issues. |
| Thangavelu Mudaliar Sri Ambigai Bus Transport Vellore v. North Arcot Dt. Co-operative Motor Transport Society for Ex-Servicemen Ltd., Vellore, W.P No. 402 of 1959 (Mad) | Referenced as another authority concerned with the earlier Government Order (G.O. 1298 Home dated 28-4-58) whose scheme directed preference to Co-operative Societies in the marking columns. | The court treated this decision as concerned with the old Government Order and held that it had no application to the marking system under the then-current Government Order, which allotted a mark to companies as well as co-operative societies. |
Court's Reasoning and Analysis
The court analysed the petitioner's contention that the proviso to Section 47(1) could be applied only when the specific circumstances listed in clauses (a) to (f) of Section 47(1) were shown to be equal between the applicants. The court acknowledged an earlier Division Bench decision inclined to that interpretation but observed that the earlier decisions were decided under an older Government Order (G.O. 1298 Home dated 28-4-58) whose marking scheme explicitly directed a column to prefer a Co-operative Society.
The court contrasted the earlier Government Order with the then-current Government Order (referred to in the opinion as G.O.Ms No. 2265 Home dated 9th August, 1958 and also earlier mentioned as G.O.Ms No. 2205 Home dated 9-8-1958), noting a material difference: under the present Government Order one mark was allotted for being a registered Co-operative Society or a registered public limited company or a registered private company. Thus, the present marking system did not, by its allocation of one mark for organisational form, itself incorporate the proviso's preference for co-operative societies.
Given that both the petitioner and the first respondent were allotted equal marks (including the one mark for being either a co-operative society or a company), the Tribunal acted correctly in holding that the first respondent could be given the benefit of the proviso to Section 47(1) when marks were equal. The court further noted that the Tribunal also correctly proceeded on the alternative basis that, even excluding the "company/co-operative" mark, the first respondent should still be preferred because (a) it was entitled to the proviso and (b) it had a better history-sheet. Therefore, the court concluded there was no impermissible "double preference" shown to the first respondent.
The court accepted, for the sake of argument, that the petitioner's textual contention about the proviso referring to clauses (a) to (f) might be sound in principle, but observed that this precise point had not apparently been argued before the Tribunal, nor had evidence been placed before it to show inequality under those clauses between the parties. In that factual and procedural posture, the court found no error apparent on the face of the Tribunal's order or record.
The court also noted that the Tribunal had given additional reasons for its conclusion which were criticized, but found it unnecessary to deal with those additional reasons because the Tribunal's order could stand on the grounds already discussed.
Holding and Implications
PETITION DISMISSED
Direct effect: The Tribunal's order granting the permit to the first respondent stands; the petition to quash that order is dismissed and no costs were awarded. The court concluded that the Tribunal did not err in applying the proviso to Section 47(1) in the circumstances described, and that no double preference was shown to the first respondent.
The opinion does not purport to establish a broad new precedent beyond the application of the existing marking system and proviso to the particular facts before the Tribunal; it confined its reasoning to the differences between the earlier and then-current Government Orders and the factual record in this case.
1. The Tribunal set aside the permit granted to the petitioner on the route Coimbatore Railway Station to Saravanampatti, a town route, in Coimbatore town, and granted the permit to the first respondent. The Regional Transport authority proceeded upon the footing that the marking system under G.O.Ms No. 2205 Home dated 9-8-1958 should not be applied but the selection should be made on a different criterion, namely, that the person with the smallest number of buses should have the first preference. It was on that basis the petitioner was preferred by the Regional Transport authority, as the petitioner had six permits, while the first respondent had nine permits. The Tribunal considered that this was a wrong principle to be applied and followed the marking system. When the Tribunal found that the petitioner as well as the first respondent obtained equal marks, two considerations weighed with it in favour of the first respondent. One of them was that the first respondent had a better history-sheet; and the other was that the first respondent being a Co-operative Society, and in view of the equality of marks, it was entitled to the benefit of the proviso to Section 47(1) of the Motor Vehicles Act. The Tribunal accordingly granted the permit to the first respondent. This petition is to quash the Tribunal's order.
2. The only serious point urged on behalf of the petitioner is that the Tribunal misdirected itself in applying the proviso to S. 47(1). The contention is that the words “other conditions being equal” in the proviso have reference to clauses (a) to (f) of sub-sec. (1) of S. 47, and not to equality of marks assigned under the said Government Order.
3. It is further stated that once the first respondent was allotted one mark under Government Order for being a Co-operative Society, the proviso could no longer be invoked in its favour. So far as the first proposition is concerned, a Division Bench of this Court in M.P Uthandi Mudaliar Sri Shivaji Motor Service Vellore v. North Arcot Dt. Co-operative Motor Transport Society for Ex-Servicemen Ltd., Vellore, WA No. 52 of 1958 (Mad) seems to have been inclined to take that view. Observed the Court in that case:
“The phrase ‘other conditions being equal’ which occurs in the proviso obviously refers to the conditions set out in S. 47(1), clauses (a) to (f). It cannot be said that the columns 1 to 5 embodied in the marking system directly correspond to the circumstances mentioned in clauses (a) to (b) in S. 47(1) of the Act.”
4. I do not understand the Tirunelveli Co-operative Motor Transport Society for Ex-Servicemen Ltd., Palayarokottai v. State Transport Appellate Tribunal, W.A No. 1 of 1958 (Mad) said anything, which is in conflict with that view. The point, therefore, is whether only in view of the equality of the marks, the proviso could be applied in favour of the first respondent in this case. The learned Advocate General says that the application of the proviso will mean giving the first respondent a double preference. Apparently this argument is addressed on the assumption that the one mark under the marking system granted to the first respondent took into account the preference, contained in the proviso to S. 47(1). It should be remembered that the two decisions which I have just now referred to as well as Thangavelu Mudaliar Sri Ambigai Bus Transport Vellore v. North Arcot Dt. Co-operative Motor Transport Society for Ex-Servicemen Ltd., Vellore, W.P No. 402 of 1959 (Mad) were concerned with the old G.O 1298 Home dated 28-4-58, under which column 5 directed preference to be given to a Co-operative Society. The scheme of that Government Order was not the same as the one now in force, to wit G.O.Ms No. 2265 Home dated 9th August, 1958. In the latter Government order one mark is to be allotted not only where the applicant is a registered Co-operative Society, but also to a registered public limited company or a registered private company. It is clear, therefore, that when the rival applicants are a company, whether private or public, and a registered Co-operative Society each of them is entitled to one mark, because of the nature of its constitution. Obviously, therefore, unlike the earlier Government Order, the present Government order does not take into account the preference under the proviso to S. 47(1) in the scheme of allotment of marks on the basis whether the applicant is a Co-operative Society or a private or public limited company it seems to me that the said decisions rendered under the old Government order will have, therefore, no application to the marking system under the present Government Order. Here, both the petitioner as well as the first respondent were allotted equal marks, including the one mark which was given for being either a registered Co-operative Society or a Company. In that situation, the Tribunal rightly considered that the first respondent was entitled to the benefit of the proviso to S. 47(1). The Tribunal was also prepared to proceed on the basis, again rightly, that even if the company mark given to the petitioner and the first respondent was excluded, still the first respondent should be preferred both under the proviso to S. 47(1), and because the first respondent had a better history sheet. There was no double preference, therefore, shown to the first-respondent.
5. For the petitioner it is argued that as “other conditions being equal” in the proviso to S. 47(1) have reference to clauses (a) to (f) under sub-sec. (1) of S. 47, it is only when the Tribunal applied those clauses and found an equality of circumstances between the petitioner and the first respondent, could it legitimately invoke and apply the proviso in favour of the first respondent. I will assume that this approach as a proposition is sound, though I must confess that the observations in the course of the judgment in W.A No. 1 of 1958 (Mad) do not at first sight appear to be entirely in support of it. It does not perhaps appear that the point, in the precise form in which it is raised, was put forward before the Tribunal. Even otherwise, it does not appear to have been contended that the circumstances under clauses (a) to (f) of S. 47(1) in respect of the first respondent on the one hand and the petitioner on the other were in any sense unequal. If the facts relevant to the contention had been proved and placed before the Tribunal it should certainly have referred to them. In such circumstances it cannot be said that the Tribunal committed an error apparent on the face of its-order or the record. Further, I am inclined to think that, though the words “other conditions being equal” in the proviso undoubtedly have reference to clauses (a) to (f) of S. 47(1), the mark system under the G.Os in a measure is related to them and the observations made in W.A No. 52 of 1958 (Mad) where in connection with the particular facts and the application of the old Government Order the scheme of which, as I said, was different. The marking system under the Government Order itself gave preference only to a Co-operative Society, and that distinguishes, in my opinion, the observations made-in that case. The Tribunal was not, therefore, in error on this aspect either.
6. I have already set out the two circumstances which weighed with the Tribunal in making a preference in favour of the first respondent. Without being-content with them, the Tribunal thought fit to give additional reasons which have been under attack by the learned Advocate General for the petitioner. But as I take the view that the Tribunal's order could rest without those reasons, I do not think it necessary to deal with them.
7. The petition is dismissed. No costs.
DH/A.G.T/R.G.D
8. Petition dismissed.
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