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Advocates
  • For the Appellant: S. Narayanan Potti P. Karunakaran Nair P. V. Ayyappan N. K. Varkey
  • For the Respondent: 1st P. Vasu
  • For the Respondent: 2nd
Judges
  • M.A Ansari, C.J
  • M. Madhavan Nair, J.
Acts
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • For the Appellant: S. Narayanan Potti P. Karunakaran Nair P. V. Ayyappan N. K. Varkey
  • For the Respondent: 1st P. Vasu
  • For the Respondent: 2nd
Judges
  • M.A Ansari, C.J
  • M. Madhavan Nair, J.
Acts
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Smart Summary

Summary of the Opinion — Madhavan Nair, J.

Factual and Procedural Background

In response to a notification dated 9-11-1955 of the Regional Transport Authority (R.T.A.), Trichur, the appellant, the 1st respondent and eight others applied for a stage-carriage permit for the route Chalakudy — Malayattur via Kalady. After notification, representations and a public hearing under Section 57 of the Motor Vehicles Act, the R.T.A. granted the permit to the 1st respondent by order Ext. R-1 dated 5-5-1956.

Four disappointed applicants appealed to the Central Road Traffic Board, which vacated the R.T.A.'s order by Ext. R-2 dated 14-8-1956 on the ground that the R.T.A.'s order gave no reasons for rejecting the other applications. During that appeal a stay was in force, but the 1st respondent was given a temporary permit which was extended and ultimately a pucca permit was granted on 24-8-1957. It is admitted that the 1st respondent operated a bus on the route from 5-5-1956 continuously without complaint.

On remand after Ext. R-2, the R.T.A. again heard the matter on 31-1-1957 and recorded proceedings Ext. R-3 granting the permit to the 1st respondent. Three disappointed applicants appealed to the State Transport Appellate Tribunal (S.T.A.T), which set aside the R.T.A.'s order by Ext. R-4 dated 23-7-1957 and remitted the matter. The R.T.A. then passed Ext. R-5 dated 24-8-1957 again granting the permit to the 1st respondent. Three appeals were preferred against Ext. R-5 and by Ext. P-2 dated 22-11-1958 the S.T.A.T. set aside the R.T.A.'s order and granted the permit to the present appellant.

The 1st respondent filed an Original Petition (O.P. No. 803 of 1958) in this Court for certiorari to quash the S.T.A.T.'s order and obtained a stay. The learned Single Judge allowed the Original Petition, quashed Ext. P-2 and restored Ext. P-1 (the R.T.A.'s order). This appeal challenges the learned Single Judge's order.

Legal Issues Presented

  1. Whether qualifications, experience and operational facilities acquired by an applicant after an initial order (Ext. R-1 dated 5-5-1956) but before subsequent final adjudication can be taken into account in deciding the grant of a stage-carriage permit.
  2. Whether the S.T.A.T.'s approach of judging applicants' qualifications strictly as on the date of the R.T.A.'s first order (5-5-1956) was legally correct.
  3. Whether the R.T.A.'s grant of the permit to the 1st respondent was perverse or unfair in view of the applicants' comparative qualifications at the time of final decision.

Arguments of the Parties

Appellant's Position

  • The S.T.A.T. found that if qualifications were judged as on 5-5-1956 (date of the R.T.A.'s first order), the appellant would be better qualified than the 1st respondent to receive the permit. (This reflects the S.T.A.T.'s reasoning that the appellant's qualifications at that date were superior.)
  • The appellant is described in the opinion as a large fleet owner operating more than 200 buses in the State (suggesting greater operational resources at the relevant earlier date).

1st Respondent's Position

  • The 1st respondent had been operating a bus on the route since being given the temporary permit in May 1956 and continued to do so without complaint; he had also placed a new bus on the route and maintained workshops at Chalakudy and Kalady. These facts supported his operational qualifications.
  • The 1st respondent was regarded as a small but efficient operator; both the R.T.A. and S.T.A.T. (at earlier stages) accepted the principle that, all other things being equal, a small operator should be preferred to a big fleet owner.

S.T.A.T.'s View (as recorded in the opinion)

  • The S.T.A.T. held that operational qualification, efficiency and experience of applicants must be judged as on 5-5-1956 (the date of the R.T.A.'s first order) and that any qualifications acquired after that date should not be considered.
  • The S.T.A.T. set aside the R.T.A.'s order primarily on the ground that qualifications acquired since Ext. R-1 should not be taken into account.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Vypeen Transport Corporation v. State Transport Appellate Tribunal, Trichur, 1960 Ker LT 1058; (AIR 1961 Ker 77) The essential factor in granting a stage carriage permit is the interest of the travelling public, which mainly depends on (1) the applicant's experience in operating the service and (2) his facilities for operating the same; experience should preferably be on the route (or nearby) and operational facilities include vehicle ownership/fitness, financial position, maintenance provision, passenger conveniences, etc. The Court relied on this precedent to identify the criteria (experience and operational facilities) that must be considered when comparing applicants for a permit and applied these criteria to the facts of the present case.
Sayu Mohammed Abdulla v. Neelakantan Krishnan, 1957 Ker LT 911 : 1957 Ker LJ 950 : (AIR 1958 Kerala 322) Principle that facts and events subsequent to institution of proceedings (including subsequent legislation or developments) may be taken into account in shaping the court's conclusion. Used to support the view that subsequent developments (such as the 1st respondent's later-acquired experience and facilities) can legitimately be considered when deciding a permit issue.
Sankara Pallai v. Mathunni Ittiera, 1958 Ker LJ 672 : 1958 Ker LT 220 : (AIR 1958 Kerala 245) Reinforces the proposition that subsequent facts/events should be considered in adjudication. Cited to buttress the Court's acceptance that qualifications acquired after an earlier order may be relevant to the final decision.
Nani Kupiukrishnan v. Padmanabha Pillai Krishna Pillai, 1958 Ker LJ 984 : 1958 Ker LT 645 : (AIR 1959 Ker 38) Supports the principle that subsequent developments are relevant to adjudication. Applied for the same purpose — to justify consideration of qualifications arising after the earlier R.T.A. order.
Kesavan Embranthiri v. Krishnan Embranthiri, 1959 Ker LJ 390 : 1959 Ker LT 361 Also cited for the proposition that facts and events subsequent to initiation of proceedings may be considered by the court/authority. Relied upon to justify taking into account the 1st respondent's subsequent operational experience and facilities when assessing suitability for the permit.

Court's Reasoning and Analysis

The Court critically examined the S.T.A.T.'s central premise that qualifications must be fixed as on 5-5-1956 (the date of the R.T.A.'s first order) and held that this approach was unsound. The Court reasoned as follows:

  1. The fundamental criterion for grant of a stage carriage permit is the interest of the travelling public; that interest is served by assessing (a) the applicant's experience specific to the route (or nearby routes) and (b) operational facilities such as vehicle ownership and fitness, financial capacity, maintenance arrangements and passenger conveniences (drawing on the Vypeen Transport precedent).
  2. The Court observed that the 1st respondent had operated a new bus on the route continuously since temporary permit in May 1956 without complaint and had workshops at Chalakudy and Kalady. These facts showed operational experience and facilities relevant to serving public interest.
  3. The Court rejected the S.T.A.T.'s unexplained preference for the date 5-5-1956 as the exclusive point of reference. It noted that if qualifications acquired after submission of applications but before the first order could be considered, it was illogical to disallow consideration of qualifications acquired before reconsideration or final adjudication after remand.
  4. The Court endorsed the Single Judge's observation that "there is no principle that subsequent development should not be taken into consideration" and cited authority to the effect that facts and events subsequent to institution of proceedings may be relevant in moulding a conclusion.
  5. Applying these principles, the Court concluded that the 1st respondent's subsequent acquisition of operational experience and facilities was relevant and should not have been ignored by the S.T.A.T. The record showed that when qualifications were judged at the time of final orders, the 1st respondent was not inferior to the appellant.
  6. Consequently, the Court found the S.T.A.T.'s reliance on the cut-off date (5-5-1956) to be a clear error apparent on the face of the record and held that the R.T.A.'s grant of the permit to the 1st respondent was not perverse or unfair.

Holding and Implications

HOLDING: The appeal is dismissed. The learned Single Judge's order quashing the S.T.A.T.'s decision (Ext. P-2) and restoring the R.T.A.'s order in favour of the 1st respondent was upheld.

Implications:

  • The direct effect is that the R.T.A.'s grant of the permit to the 1st respondent remains in force and the S.T.A.T.'s order granting the permit to the appellant was set aside by the Single Judge and that decision is affirmed on appeal.
  • The Court held that qualifications and subsequent developments occurring after an earlier disposal may properly be taken into account when authorities pass their final orders on permits; the S.T.A.T.'s rule excluding post-Ext. R-1 developments was treated as erroneous in the circumstances of this case.
  • No order as to costs was made by the Court in respect of this appeal.
  • The opinion applies existing precedents to the facts and does not purport to create a wholly new legal principle beyond the accepted idea that subsequent developments can be relevant; no broader novel precedent is announced beyond the application of those principles to this case.
Show full summary ...

    P.S.N Motors Ltd. v. Gangadhara Menon .

    Madhavan Nair, J.:— The appellant, the 1st respondent and 8 others had submitted applications for a stage-carriage permit for the route Chalakudy — Malayattur via Kalady in response to a notification dated 9-11-1955 of the Regional Transport Authority, Trichur (who will be referred to hereinafter as the R.T.A). After due notification, receipt of representations, and a public hearing as per Section 57 of the Motor Vehicles Act, the R.T.A granted the permit to the 1st respondent by its order Ext. R-1 dated 5-5-1956. Four of the disappointed applicants appealed to the appellate authority, the Central Road Traffic Board, Trivandrum, and the latter by their order Ext. R-2 dated 14-8-1956 vacated the order of the R.T.A on the ground that the order did not give reasons for the rejection of the applications other than the one which was allowed by the R.T.A During the pendency of the appeal before the Central Road Traffic Board there was a stay of operation of the order of the R.T.A, but in the meanwhile the 1st respondent was given a temporary permit to ply a bus on the route. It is admitted that temporary permit was extended from time to time in favour of the 1st respondent till a Pucca permit was granted to him on 24-8-1957 and that thus the 1st respondent has been running a bus on the concerned route from 5-5-1956 to this day without interruption and without any complaint from the travelling public or anybody else.

    2. After remand by the Central Road Traffic Board, the R.T.A heard the matter again at a public hearing on 31-1-1957 and decided to grant the permit to the 1st respondent himself, Ext. R-3 being the proceedings of even date. Three of the disappointed applicants took the matter in appeal before the State Transport Appellate Tribunal (referred to hereinafter as the S.T.A.T), who set aside the order of the R.T.A by their proceedings Ext. R-4 dated 23-7-1957 on the ground that the reasons given therein for the refusal of the permit to the appellants were vague-and inadequate, and remitted the matter again to the R.T.A The R.T.A considered the applications afresh for the third time and passed their proceedings Ext. R-5 dated 24-8-1957 granting the permit again to the 1st respondent himself. Three appeals were preferred against that order aud thereupon the S.T.A.T, by Ext. P-2 order dated 22-11-1958, set aside the order of the R.T.A and granted the permit to the present appellant. The 1st respondent at once moved an Original Petition (O.P No. 803 of 1958) in this Court for a writ of certiorari to quash the order of the S.T.A.T and secured stay of the operation of that order in the meanwhile. The learned Single Judge, before whom the O.P came up for disposal, observed:—

    “….he (the 1st respondent here) has been successfully operating the Chowara Malayattur route via Kalady. He had also without complaint been operating a temporary permit on the route under consideration……. And since Ext. R-5 date he has been on the lines without causing difficulty to the travelling public. It would appear further that he had established garage at Chalakudy and Kalady though after Ext. R-1 date. He has also his residence on the route. It is these various qualifications that recommended (the 1st respondent) to the R.T.A The appellate authority thought that the principle of supporting a small operator as against big ones, if other conditions were equal, referred to and applied by the R.T.A when it passed the final order R-8 was unobjectionable. But it thought that the other conditions, viz., as to operational efficiency should not have been later acquired by the small operator as here. According to the Appellate Authority, the position as on 5-5-1956 when the first order was passed by the R.T.A should alone apply. But why it belated that date and not more consistently the notification date or at least the date when the rival application for permit was respectively made is not clear. It is no doubt true that the applications refer to qualifications and necessarily refer to subsisting ones and not to be acquired in the future. But even so there is no principle that subsequent development should not be taken into consideration.”

    In this view, the learned Judge allowed the Original Petition and “quashed Ext. P-2 order of the S.T.A.T so as to restore to effect Ext. P-1 order of the R.T.A” This appeal is against the last-mentioned order.

    3. We have held in Vypeen Transport Corporation v. State Transport Appellate Tribunal, Trichur, 1960 Ker LT 1058 : (AIR 1961 Ker 77) that the essential factor that has to be considered in the matter of the grant of a stage carriage permit is the interest of the travelling public, and that would mainly depend upon (1) the experience of the applicant in operating the service and (2) his facilities for operating the same. Experience in this regard must be the experience in operating services on the route in question and if such be not available on routes nearby. So much so experience in respect of a part of the route in question must be considered as a preferential qualification for the grant of permit over the route, in the absence of applicants with experience over the entire route. In determining the operational facilities of the applicants we have stated that the authorities have to consider the ownership of the applicant to the vehicle offered to be put in service on the route, the fitness of that vehicle, the financial position of the applicant in relation to capacity to maintain the service in good order and to mete out all risks attendant on the venture, the provision he has for maintenance and repairs of the vehicle, the accommodation and conveniences that the applicant proposes to give to the passengers and like other matters.

    4. It is stated that the 1st respondent has put a new bus on the route as soon as he was given the temporary permit in May 1956 and that he has been operating it on the route from 1956 to this day without any complaint from the Public or the authorities. That lie maintains workshops at Chalakudy and Kalady are also admitted by the appellant. Both the R.T.A and the S.T.A.T have accepted the principle that “if other conditions are equal and if the interests of the travelling public will not be adversely affected a small operator should be preferred to a big fleet owner.” The appellant is admittedly a big fleet owner having more than 200 buses operating in the State; and the first respondent is said to be a small but efficient operator. But the S.T.A.T took the view that the operational qualification, efficiency and experience of the applicant must be judged as on 5-5-1956, the date of the first order of the R.T.A, and that any qualification acquired after that date should not be taken into consideration.

    5. We are unable to follow the reasoning in this; if the S.T.A.T had observed that the qualifications of the applicants should be taken as on the date of the notification or even as on the date fixed for the receipt of the applications, one can understand it. But why the qualifications should be taken as on the date of the first order of the R.T.A granting the permit is not clear to us. If qualifications acquired after the submission of the applications but before the passing of the first order of the R.T.A granting the permit can be considered, it passes beyond comprehension why the qualifications acquired before reconsideration of the matter by the R.T.A as per the directions of the appellate authority should not be accepted by them when they are passing the final order to grant the permit. We agree with the learned Single Judge in his observation: “There is no principle that subsequent developments should not be taken into consideration.” This Court has always held that facts and events, including legislation that came to be subsequent to the institution of the proceedings have to be taken into consideration in moulding the conclusion in the case. See Sayu Mohammed Abdulla v. Neelakantan Krishnan. 1957 Ker LT 911 : 1957 Ker LJ 950 : (AIR 1958 Kerala 322): Sankara Pallai v. Mathunni Ittiera. 1958 Ker LJ 672 : 1958 Ker LT 220 : (AIR 1958 Kerala 245); Nani Kupiukrishnan v. Padmanabha Pillai Krishna Pillai, 1958 Ker LJ 984 : 1958 Ker LT 645 : (AIR 1959 Ker 38) and Kesavan Embranthiri v. Krishnan Embranthiri, 1959 Ker LJ 390 : 1959 Ker LT 361. There is no reason why the experience gained by the 1st respondent by running a bus on the route for a pretty long time and the other operational facilities made by him in respect of the service on the route should be overlooked by the authorities in deciding on the grant of the permit. The interests of the travelling public cannot certainly canvass the same. The proceedings of the S.T.A.T Ext. P-2, shows that they have reversed the order of the R.T.A mainly on the ground that the qualifications acquired since the date of Ext. R-1 order should not be taken into consideration in this matter, and if qualifications were considered as on that date the appellant would be found to be better qualified than the 1st respondent to get the permit.

    6. The order as a whole, especially when it is read along with the order of the R.T.A, clearly indicates that if qualifications were adjudged as on the date when the R.T.A or the S.T.A.T passed their final order in the matter, the qualifications of the 1st respondent were in no way inferior to those of the appellant. It follows therefore that the grant of the permit to the 1st respondent by the R.T.A cannot be said to be perverse or unfair. The view of the S.T.A.T that the qualifications acquired after the date of the first disposal of the application by the R.T.A should not be looked into is a clear error apparent on the face of the record. The order of the learned Single Judge of this Court who had exercised his discretion in the circumstances above-said to quash the decision of the S.T.A.T thereby restoring to effect the order of the R.T.A cannot be said to be unwarranted. It follows therefore that this appeal against the exercise of discretion by the learned Single Judge does not succeed.

    7. The appeal is dismissed.

    8. But in the circumstances of this case we do not make any order as to costs.

    GE/C.

    9. Appeal dismissed.

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    Comments

    P.S.N Motors Ltd. v. Gangadhara Menon .
    (Nov 4, 1960)