Sri Raja Rajeswari B... v. Regional Transport A..., Madras High Court, Judgment, Law, casemine.com

Citation Codes

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Case Number

Writ Petns. Nos. 1055 and 1794 of 1968 and W.A No. 128 of 1968

Advocates

For the Appellant: K.K. VENUGOPAL, R.S. RAMANUJAM, S. MOHAN KUMARA MANGALAM, V. SUBRAMANIAM, V.T. GOPALAN, Advocates.

Judges

M. Anantanarayanan, C.J
Natesan, J.

Acts

Section 57(2) of the Motor Vehicles Act,
sub-sections (3) and (4) of Section 57
Section 47(3). While Section 57(3)
sub-section (3) of Section 47.
sub-section (3) of S. 57.
(f) of Section 47(1)

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Smart Summary

Factual and Procedural Background

The Regional Transport Authority (South Arcot) issued a notification dated 16-12-1967 under Section 57(2) of the Motor Vehicles Act inviting applications for a stage carriage permit on the route Madampoondi to Ulundurpet (via La-Gudalur, Rishivandiam, etc.). Three applicants applied, one being the 2nd respondent. Applications were notified on 12-1-1968 under Section 57(3) and representations were required on or before 8-2-1968. The applications were initially set down for 29-2-1968 but were adjourned to 12-3-1968.

The petitioner is an existing operator owning 12 buses on a sector of the route. He did not submit representations within the prescribed period under Section 57(3), but sent a petition by registered post to the Regional Transport Authority which was acknowledged on 27-2-1968 requesting that proceedings under Section 47(3) be taken before consideration of the applications. On 12-3-1968 the petitioner appeared through counsel and sought postponement of consideration pending determination under Section 47(3). Proceedings dated 12-3-1968 show that the 2nd respondent was granted the permit; the proceedings recorded only one objector and did not refer to the petition sent by post or the counsel's representation. Grant of the permit was communicated on 3-4-1968.

The petitioner filed W.P. No. 1055 of 1968 seeking a writ of prohibition, later seeking to amend relief to certiorari after the 2nd respondent informed that the permit had been granted on 3-4-1968. He also filed an independent writ petition, W.P. No. 1794 of 1968, for certiorari to quash the Regional Transport Authority's order dated 12-3-1968. The petitioner contended there was no prior determination under Section 47(3) and that the proceedings under Section 57(3) without such prior determination were vitiated.

Legal Issues Presented

Whether proceedings under Section 57(3) can be lawfully entertained and permits granted without a prior determination under Section 47(3) when such prior determination is required by the circumstances;
Whether a party (an existing operator) who failed to make a representation within the time prescribed by Section 57(3) and Section 57(4) can challenge the grant of permit under Article 226 of the Constitution on the ground that no prior inquiry under Section 47(3) took place;
Whether representations made after the prescribed date (including by registered post two days before the appointed date and by counsel at an adjourned hearing) are admissible for the purpose of invoking Section 47(3) or for being heard under Section 57(3)/(4).

Arguments of the Parties

Petitioner's Arguments

The Regional Transport Authority proceeded under Section 57(3) to consider applications and granted a permit without first conducting an inquiry under Section 47(3), which was required; consequently the proceedings are vitiated and void.
The petitioner, as an existing operator on the route, had objected to proceeding on the merits without prior determination under Section 47(3) (by registered post acknowledged on 27-2-1968 and by counsel on 12-3-1968) and therefore the grant should be quashed.
Reliance was placed on a batch of authorities including W.A. Nos. 264–266 of 1967 (AIR 1969 Mad 441), decisions of this Court and the Supreme Court (Jayaram Motor Service v. S. Rajarathinam; Lakshmi Narain Aearwal v. State Transport Authority) to support the contention that a prior determination under Section 47(3) is required in appropriate cases.

2nd Respondent's Arguments

The petitioner made no representation under Section 57(3) within the prescribed time and therefore had no locus standi to be heard at the inquiry on the merits; Section 57(4) bars consideration of any representation not made in writing before the appointed date and served simultaneously on the applicants.
The Regional Transport Authority acted lawfully in not taking cognizance of the petition posted two days before the date fixed for inquiry and of the representation by the petitioner's counsel at the adjourned hearing, because those were not representations falling within Section 57(3) read with Section 57(4).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
W.A. Nos. 264–266 of 1967 (AIR 1969 Mad 441) — Gobald Motor Services (P.) Ltd. (batch)	Held that where objectors timely call for a prior determination under Section 47(3), the Regional Transport Authority has no jurisdiction to proceed to consider applications on the merits without that prior determination.	The Court relied on and distinguished the facts of that batch: there the objectors had timely made representations and demanded Section 47(3) proceedings; in the present case the petitioner did not make timely representation under Section 57(3).
Jayaram Motor Service v. S. Rajarathinam ((1967) 2 SCWR 857 at p. 860)	Indicates that an inquiry under Section 47(3), when required, should not be telescoped with the inquiry under Section 57 into applications on the merits.	The Court cited this Supreme Court principle to explain the two-stage nature of proceedings and to support that, when a Section 47(3) determination is required, it should precede adjudication on the merits.
Lakshmi Narain Aearwal v. State Transport Authority (Civil Appeal No. 636 of 1967 = AIR 1968 SC 410)	Authority on the requirement of prior determination under Section 47(3) in appropriate cases.	The Court treated this decision as part of the jurisprudence establishing that Section 47 may require a two-stage inquiry and relied on it when discussing the need for prior determination in appropriate circumstances.
W.P. No. 406 of 1968 and W.A. No. 92 of 1968 (Mad) — K. Naniappan v. Regional Transport Authority North Arcot at Vellore	Held that where parties tacitly proceed on the basis that no fixation under Section 47(3) is required, orders passed on that assumption are not necessarily wholly void; if no one raised the objection before the authority, the order may not be vitiated.	The Court relied on this reasoning to hold that when objection under Section 47(3) is not taken before the authority, the order is not automatically void and the objection cannot be raised at any stage irrespective of other considerations.
Purushotham Bhai Punambhai Patel v. State Transport Appellate Authority, Madhya Pradesh (C.A. No. 762 of 1963)	Held that Sections 57(3) and (4) preclude any party who had not notified objections in time from being heard at any stage of proceedings relating to the grant of a permit advertised under Section 57(3).	The Court invoked this Supreme Court decision to support the view that the petitioner, having failed to notify objections in time, was precluded by Section 57(3)/(4) from being heard and that late representations could not be entertained.
Arunachalam Pillai v. Southern Roadways Ltd., AIR 1960 SC 1191	Noted in the opinion but described as distinguishable from the present case.	The Court observed that this decision (and certain others listed) were clearly distinguishable and had no bearing on the question under consideration in the present matter.
Taj Mahal Transport Ltd. v. Secretary Regional Transport Authority Tirunelveli, AIR 1966 Mad 8	Noted in the opinion but described as distinguishable.	The Court stated this decision was distinguishable and did not bear on the issue before it.
Swami Motor, Transport (P.) Ltd. v. Raman and Raman, AIR 1961 Mad 180	Noted in the opinion but described as distinguishable.	The Court stated this decision was distinguishable and did not have bearing on the present question.

Court's Reasoning and Analysis

The Court began by acknowledging the two-stage structure envisaged by Section 47: (i) fixation of the number of permits under Section 47(3), and (ii) subsequent consideration of applications and representations under Section 57. It accepted the principle that where existing operators or other interested parties call upon the Regional Transport Authority to fix the number of buses under Section 47(3) before entertaining applications for permits, the authority is bound to do so.

The Court distinguished earlier decisions where objectors had timely made representations demanding a prior determination under Section 47(3) (in which the authority's failure to proceed under Section 47(3) first would vitiate an order) from situations where no such representation was made. The Court relied on its own prior decision (W.P. No. 406 of 1968 and related authorities) to explain that if parties tacitly proceed on the basis that no fixation is necessary and no one raises the objection before the authority, it could not be said that orders made on that assumption are wholly void.

The Court then considered the statutory bar in Section 57(4), which precludes the authority from considering any representation in connection with an application unless it is made in writing before the appointed date and a copy is furnished simultaneously to the applicant. Because the petitioner had not notified his objections in time under Section 57(3) and Section 57(4) read together precluded hearing him at the inquiry, the Court held that the petitioner's late petition by post (acknowledged two days before the appointed date) and the representation by counsel at the adjourned hearing did not qualify under the statutory provisions.

The Court referred to the Supreme Court's ruling (Purushotham Bhai) that Sections 57(3) and (4) prevent any party who failed to notify objections in time from being heard at any stage of proceedings in relation to a duly advertised application, and used this to support the conclusion that the petitioner's failure to act within the statutory window barred him from seeking relief by way of Article 226 on the present facts.

The Court expressly distinguished other authorities relied upon by the petitioner as inapplicable to the particular facts; it concluded that the circumstances before it did not call for interference under Article 226.

Holding and Implications

Holding: Writ petitions dismissed; writ appeal (from an interlocutory order) dismissed; Rules Nisi discharged; no order as to costs.

Implications:

Direct effect: The challenge to the Regional Transport Authority's order dated 12-3-1968 was rejected and the grant of the permit to the 2nd respondent stands as communicated on 3-4-1968.
Procedural consequence: The Court reaffirmed that when an interested party does not make representations within the time prescribed by Section 57(3) and Section 57(4), the authority is not obliged to entertain late representations and such parties may be precluded from being heard on the merits of the application before the authority.
Broader precedent: The opinion addresses and applies existing authority on the interplay between Sections 47 and 57 of the Motor Vehicles Act and on the consequences of failing to make timely representations. The Court did not purport to lay down a novel principle beyond the application and reconciliation of the cited authorities to the facts; no broader new precedent beyond its reasoning in this case is announced.

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Sri Raja Rajeswari Bus Service, Vridhachalam v. Regional Transport Authority South Arcot Cuddalore And Another

The Judgment of the Court was delivered by

Natesan, J.:— The two writ petitions under Article 226 of the Constitution and the connected Writ Appeal directed against an interlocutory order in W.P No. 1055 of 1968 vacating the interim stay granted before notice, relate to the grant of a stage carriage permit on the route Madampoondi to Ulundurpet (Via) La-Gudalur, Rishivandiam, etc. By a notification dated 16-12-1967, the Regional Transport Authority, South Arcot, under Section 57(2) of the Motor Vehicles Act, invited applications for the grant of a stage carriage permit on the route. There were three applicants, for the route in question, the 2nd respondent in the writ petitions being one. On 12-1-1968 the applications were duly notified under Section 57(3) and 8-2-1968 was fixed as the date, on or before which representations in connection with the applications should be submitted furnishing copies thereof simultaneously to the applicants. The applications with representations were originally scheduled to be taken up for consideration on 29-2-1968, but were adjourned to 12-3-1968.

2. The petitioner is a fleet owner operating 12 buses on a sector of the route in question. No representations or objections to the applications entertained by the Regional Transport Authority for permit on the route in question were submitted by the petitioner within the time prescribed. But, the petitioner sent a petition by registered post to the Regional Transport Authority which was acknowledged by the Regional Transport Authority, on 27-2-1968, praying that proceedings under Section 47(3) should be taken before consideration of the applications for permit on the merits. Again, when the applications were actually taken up for consideration by the Regional Transport Authority on 12-3-1968, the petitioner appeared through Counsel and submitted that consideration of the applications should be postponed, pending determination under Section 47(3). In the proceedings of the Regional Transport Authority dated 12-3-1968, the 2nd respondent in the writ petitions became grantee. From the proceedings it is seen that there was only one objector. Grant of the permit to the 2nd respondent was duly communicated to the applicants and the representator on 3-4-1968. The proceedings did not refer to the receipt of the petition filed by the petitioner and representation made on his behalf by his Counsel on 12-3-1968.

3. It is under these circumstances that the petitioner came to this Court first with W.P No. 1055 of 1968 for the issue of a writ of prohibition. Later, after the 2nd respondent came on the scene and represented that the permit in question had been granted to him on 3-4-1968 itself, the petitioner applied for amendment of the relief of prohibition into one of certiorari. He also filed an independent application, W.P No. 1794 of 1968 for the issue of a writ of certiorari to quash the order of the Regional Transport Authority dated 12-3-1968. The substantial contention of the petitioner is that there has been no inquiry under Section 47(3) and the proceedings, taken under Section 57(3) without a prior determination of the number of permits to be granted on the route in question, are vitiated. It is submitted that, as the petitioner, an existing operator on the route, had specifically objected to the hearing of the applications for permit on the merits without prior determination under Section 47(3), the proceedings are void and without jurisdiction, and should be quashed. Reliance is placed on the decision of this Court in the batch of writ appeals and writ petitions. W.A Nos. 264 to 266 of 1967 = (AIR 1969 Mad 441), Gobald Motor Services (P.) Ltd.; Mettupalayam v. Regional Transport Authority. Coimbatore and W.P Nos. 67 and 72 of 1966 (Mad) and W.P No. 406 of 1968 (Mad) following the decision of the Supreme Court in Jayaram Motor Service v. S. Rajarathinam, (1967) 2 SCWR 857 at p. 860 and Lakshmi Narain Aearwal v. State Transport Authority, Civil Appeal No. 636 of 1967 = (AIR 1968 SC 410).

4. There is no dispute that, for the route in question, there has been no prior determination under Section 47(3). But the question is whether the proceedings are liable to be challenged under Art. 226 and quashed at the instance of the petitioner, who had admittedly made no representation under Section 57(3) within the prescribed time. It is submitted for the 2nd respondent that, not having made any representation under Section 57(3), the petitioner has no locus standi to be heard at the inquiry of the applications for permit on their merits, and that, therefore, he could not complain of the grant. It is submitted that it was open to the petitioner, by his representation under Section 57(3), to question the need for the grant of permit on the route. Objections to the proposed grant, which would necessitate an inquiry under Section 47(3) particularly under sub-cls. (a) and (f) of Section 47(1) it is said could have been taken. Our attention was drawn to Section 57(4) which precludes consideration of any representation in connection with an application for permit, unless the representation had been made in writing before the appointed date, simultaneously furnishing a copy thereof to the applicant. In the circumstances, it was submitted that the Regional Transport Authority acted perfectly in accordance with law in not taking cognizance of the representation sent by post, just two days before the date fixed for inquiry, and the representation made by the petitioner's Counsel at the hearing on the adjourned date. The petitioner having no right of audience under Section 57(4), representations, if any, made by him it is urged were non est.

5. There can be doubt — and it has been so held following the decisions of the Supreme Court—that Section 47 envisages two stages of inquiry, (i) fixation of number of permits under Section 47(3), and (ii) consideration thereafter of the applications for the grant of permit and representations, if any, by persons mentioned in S. 57(3). In W.A Nos. 264 to 266 of 1967 = (AIR 1969 Mad 441) in fact we have remarked, with reference to the cases then under consideration, that the Regional Transport Authority had no jurisdiction to proceed to consider the applications for permit without a prior determination under S. 47(3). But we have to bear in mind the facts of the cases then considered. The Regional Transport Authority there had invited applications for the grant of additional permits on the route. The applicants for the route, besides filing applications for the grant of permit to themselves, had also made representations under Section 57(3) objecting to the addition of new buses on the route, on the ground that the route in question was more than adequately served by the existing service. When the objectors wanted the Regional Transport Authority to first fix the maximum number of permits to be granted on the route under Section 47(3), the Regional Transport Authority took the stand that orders under Section 47(3) would be passed at the time of consideration of the applications. It is in those circumstances that the petitioners came up to this Court praying for the issue of a writ of prohibition and we observed inter alia:

“That being so, from all aspects and angles it could be said that at any rate when the existing operators or applicants call upon the Regional Transport Authority to fix the number of buses on the route, before entertaining the applications for permit, it is bound to do so under Section 47(3).”

In that batch of cases the objectors in time made due representation and demanded that there must be a prior determination under S. 47(3). They had qualified themselves to be heard at the inquiry. The decision of ours in that batch of cases may be contrasted with our decision in W.P No. 406 of 1968 and W.A No. 92 of 1968 (Mad); K. Naniappan v. Regional Transport Authority North Arcot at Vellore. In the later case the petitioner was one of several applicants for the grant of permit on the route. On representations being called for under Section 57(3) to the applications received, the petitioner made no representation, on the applications of others, and raised no question about the need for a prior determination under Section 47(3). The principal contention in this Court for the Writ petitioner was, that a determination under Section 47(3) was an essential prerequisite and a matter which went into the jurisdiction of the authority, whether the petitioner had raised any objection before the Regional Transport Authority or not as to the need for additional bus and the adequacy or otherwise of the existing facilities. In dealing with the argument, we observed:—

“Though it is a question of jurisdiction in one sense, when parties, at any rate, tacitly proceed on the basis that there is no need for fixation of a limit under Section 47(3) or revision of the limit already fixed, it cannot be said that orders passed on such assumption are wholly void. If any of the objectors or any applicant at least in the alternative calls for a prior determination under Section 47(3), then the objection ought to prevail before the Regional Transport Authority, and its failure to proceed under Section 47(3) first would vitiate its order. In our view, in a matter of this kind, when an objection has not been taken by any one before the Regional Transport Authority, it cannot be said that the order is wholly void, and that objection could be raised at any stage, irrespective of other considerations and saving features.”

6. The contention of Mr. K.K Venugopal that the petitioner could not, in proceedings under Section 57(3) raise objection as to want of a prior determination under Section 47(3), is devoid of merits. In fact, in our judgment in W.P No. 406 of 1968 (Mad) we remarked:

“It was open to him to raise that point before the Regional Transport Authority as an objector, being an operator on the route. He could have raised the point at least in the alternative.”

In the batch W.A Nos. 264 to 266 of 1967 = (AIR 1969 Mad 441) we said:—

“Applications have been called for under Section 57(2) and have been filed. Objections have been preferred and affected parties have called for a determination under Section 47(3). We see nothing in law which prevents the question of revision of the limit of stage carriages on a route being taken up even after applications have been called for and received.”

It can make no difference, even if it is a case where there has been no prior inquiry at all under Section 47(3). While Section 57(3) provides for making applications for the grant of permit and inviting of representations on receipt of such applications, the proviso to that sub-section authorises the Regional Transport Authority to reject even summarily the applications without following the procedure laid down in the sub-section, if the grant of permit in accordance with the applications would go beyond the limits fixed under sub-section (3) of Section 47. That is, if a limit has been fixed under Section 47(3) and that limit would be exceeded with the grant of permit, the Regional Transport Authority may in limine dismiss the applications for permit. If the Regional Transport Authority, without such summary rejection, proceeds to publish the applications and calls for representations, clearly it will be open to any person who would be affected to object to the grant, pointing out that the limit fixed would be exceeded. Equally it will be open to the objector to state, where no limit has been fixed, that the route is well served or the condition of the road is such that more buses cannot ply on the road etc. all germane and relevant considerations under Section 47(1). Such representations can quite properly find a place in the representations made, when called for, under Section 57. The rule that where an inquiry under Section 47(3) is necessary it must precede the disposal of applications for permit on their merits, does not preclude the raising of all germane objections and relevant representations within the time prescribed. Once the objections raised and representations made call for a determination under Section 47(3), under the rulings it is incumbent upon the Regional Transport Authority to take proceedings under Section 47(3) first before embarking upon the merits of the applications under Section 57.

7. We are not impressed with the contention of Mr. K.K Yenugopal that, as the legal position was not clear till the decision of this Court in W.A Nos. 264 to 266 of 1967 = (AIR 1969 Mad 441) following the decision of the Supreme Court in (1967) 2 SC WR 857 at p. 860, the petitioner could not take the objection earlier. As a matter of fact, the decision of this Court was given on 10-1-1968 and the last date for preferring objections, called for under Section 57(3), was 8-2-1968. Further all that we laid down, following the observations of the Supreme Court in (1967) 2 SC WR 857 at p. 860 is that, when a determination under Section 47(3) is required, an inquiry under Section 47(3) should not be telescoped with the inquiry under Section 57 of the applications for the grant of permit on the merits. An enquiry under Section 47(3) may be initiated by the authority itself or duly called for by parties interested. We pointed out that, once the number of vacancies is settled, the question canvassed and decided prior to the taking up of the applications for the grant of permit on the merits, it cannot become the subject of controversy at the further stage, when the actual merits of the applications are considered.

8. Here the petitioner has not notified his objections to the grant of permit on the route, and sub-sections (3) and (4) of Section 57 read together preclude the Regional Transport Authority from hearing the petitioner at the inquiry under Section 57(3). Section 57(4) bars the authority from considering any representation in connection;with an application referred to in sub-section (3), unless the application is made in writing before the appointed date. It is manifest that the objections now raised is a representation in connection with an application for permit contemplated in sub-section (3) of S. 57. The objections raised do relate to considerations provided under Section 47(1). We cannot agree with the contention that the representation should be confined to the qualifications of the applicant for permit. True at the inquiry under Section 57(5) the authority is concerned only with the choice of the operator.

9. It is pertinent in the context to remember the practice that was previously prevalent in this State on the receipt of applications for permit, referred to in our judgment in W.A Nos. 264 to 266 of 1967 = (AIR 1969 Mad 441) batch. Suppose a limit has been fixed under Section 47(3) and, notwithstanding ignoring the proviso to Section 57(3), the authority, without summarily rejecting the applications, proceed further publishing the applications and calling for representations.

10. To accede to the petitioner's contention, would come to this, that it will not be open to an operator, on the route in his representation to raise even the patent objection that the grant of permit would exceed the limits. If he does not raise his objection in his representation, we fail to see how he can raise it at a later stage. The Motor Vehicles Code does not provide for an audience before the Regional Transport Authority at the inquiry under Section 57(3) to persons who had made no representations. In Purushotham Bhai Punambhai Patel v. State Transport Appellate Authority, Madhya Pradesh, C.A No. 762 of 1963 the Supreme Court held:

“We consider that the terms of S. 57(3) and (4) of the Act preclude any party who had not notified its objections in time to be heard at any stage of the proceedings original or appellate in relation to the grant of the permit on an application duly advertised under Section 57(3).”

The decisions in Arunachalam Pillai v. Southern Roadways Ltd., AIR 1960 SC 1191; Taj Mahal Transport Ltd. v. Secretary Regional Transport Authority Tirunelveli, AIR 1966 Mad 8 and Swami Motor, Transport (P.) Ltd. v. Raman and Raman AIR 1961 Mad 180 relied upon by the petitioner, are clearly distinguishable and have no bearing on the question now under consideration. In the present case it does not appear whether even the only representator demanded an inquiry under Section 47(3). The order of the Regional Transport Authority does not refer to any such objection from the representator. We do not think that the circumstances call for any interference by us in the matter under Art. 226 of the Constitution. The writ petitions fail and are dismissed. As the writ appeal is from an interlocutory order in the writ petition, it fails with the writ petition and is dismissed. Rules Nisi in the writ petitions are discharged. No order as to costs.

JHS/D.V.C

11. Petitions dismissed.

Sri Raja Rajeswari B... v. Regional Transport A...