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  • For the Appellant: Adinarayana Reddy, K. Amareswari, P. Babul Reddy, Advocates.
Judges
  • Gopalakrishnan Nair, J.
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  • For the Appellant: Adinarayana Reddy, K. Amareswari, P. Babul Reddy, Advocates.
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  • Gopalakrishnan Nair, J.
Acts
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Smart Summary

Structured Summary of the Judicial Opinion

Factual and Procedural Background

The petitioner holds a stage carriage permit for the route Sompeta–Srikakulam. The 3rd respondent holds a permit to ply a stage carriage from Jagati to Tekkali via Sompeta; the two routes share a common stretch of 27 miles. The petitioner applied to the Regional Transport Authority (RTA), Srikakulam, for a variation of the prescribed timings for plying his bus. The RTA allowed the variation despite objections raised by the 3rd respondent. The 3rd respondent appealed to the Deputy Transport Commissioner (DTC), Kakinada. The DTC entertained the appeal and passed an interim order suspending the RTA's order. The petitioner filed the present writ petition seeking a writ of prohibition to prevent the DTC from proceeding with that appeal on the ground that no appeal lay under Section 64 of the Motor Vehicles Act against the RTA's order in the circumstances of this case.

Legal Issues Presented

  1. Whether an appeal lies under Section 64(b) of the Motor Vehicles Act against an order of the Regional Transport Authority varying the timings (i.e., a variation of the conditions of a permit) when the appellant is not the holder of the permit varied.
  2. Whether an appeal lies under Section 64(f) of the Act to a person who opposed only a variation (change of timings) rather than the original grant of the permit.
  3. Whether the statutory fiction in Section 57(8) (treating an application to vary conditions as if it were an application for a new permit) or Rule 208(b) of the Motor Vehicles Rules can be used to sustain an appeal under Section 64.
  4. Whether the interpretation given by the Madras High Court in M. Kali Mudaliar v. A. Vedachala Mudaliar (regarding the scope of S.64(b)) is obiter or binding for present purposes.

Arguments of the Parties

Petitioner's Arguments

  • No appeal under Section 64 of the Motor Vehicles Act lies against the RTA's order in the present case; specifically, Section 64(b) does not confer a right to an outsider to appeal against a variation of another person's permit.
  • The Deputy Transport Commissioner had no authority or jurisdiction to entertain the 3rd respondent's appeal and must be prohibited from proceeding with it.

3rd Respondent's Arguments

  • The appeal is competent under Section 64(b) or, alternatively, under Section 64(f) of the Act.
  • The Madras High Court's views in M. Kali Mudaliar (1952) were obiter and therefore not binding; consequently the DTC was entitled to entertain the appeal.
  • In the alternative, Section 57(8) (a statutory fiction treating an application to vary conditions as an application for a new permit) makes a favourable variation equivalent to the grant of a new permit and thus gives a right of appeal; alternatively Rule 208(b) of the Motor Vehicles Rules could be relied on to the same effect.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
M. Kali Mudaliar v. A. Vedachala Mudaliar, (1952) 1 Mad LJ 152; AIR 1952 Mad 545 Interpretation of S.64(b): S.64(b) must be confined to the permit granted to the person aggrieved; it does not allow one person to appeal against variation of another person's permit. The court adopts this construction as authoritative (not obiter), applies it to the present facts, and holds that S.64(b) does not permit the 3rd respondent to appeal.
M/S Mohammad Jamil v. The State Transport Authority, AIR 1956 Raj 125 An instance where the Rajasthan High Court refused to follow the Madras view on S.64(b). The court records this decision as having refused to follow the Madras view but expressly rejects the reasoning of the Rajasthan decisions as unpersuasive for the present case.
Jairamdas v. The Regional Transport Authority, Jodhpur, AIR 1957 Raj 312 (Full Bench) The Rajasthan Full Bench approving the refusal to follow the Madras interpretation of S.64(b). The court notes the Full Bench's position but declines to accept its reasoning, preferring the Madras approach.
Heeralal v. State of Rajasthan, AIR 1959 Raj 41 Rajasthan High Court decision following the Full Bench in Jairamdas. The court mentions this as part of the Rajasthan line of authority which it chooses not to follow.
Nandlal Thana Ram v. Ghani Khan Monaf Khan, AIR 1961 Pat 313 Patna High Court decision dissenting from the Rajasthan view and aligning with Madras. The court cites this as an instance where Patna High Court adopted the Madras view, supporting the court's preference for the Madras interpretation.
Jasram v. S.T. Authority M.P., AIR 1961 Madh Pra 81 Madhya Pradesh High Court Division Bench declining to follow the Rajasthan view and preferring the Madras High Court view on S.64(b). The court refers to this decision as further support for adopting the Madras interpretation of S.64(b).
Krishnamurthy v. Ceded District Auto Transport Co. Ltd., (1953) 1 Mad LJ 81; AIR 1953 Mad 321 Principle that a legislative fiction (similar to R.208(b) or S.57(8)) is to be strictly confined to the specific purpose for which it was enacted and cannot be stretched to create a right of appeal by implication. The court applies this principle to reject the submission that the fiction in S.57(8) or the fiction in Rule 208(b) can be used to import a right of appeal under S.64.

Court's Reasoning and Analysis

The court analyzed the competing statutory provisions and precedents step by step:

  1. The court examined the language and context of Section 64(b) and the Madras High Court's detailed interpretation in M. Kali Mudaliar. The Madras Division Bench construed the expression “the permit” in clause (b) as referring to the permit mentioned in clause (a) — i.e., the permit granted to the person aggrieved — and confined the scope of clause (b) to the permit holder. The present court held that this construction was not obiter but a relevant adjudication of a material question, and therefore entitled to full precedential weight.
  2. The court rejected the contention that the Madras court's view was merely obiter. It explained that where an appeal involves two distinct questions, a court of appeal may decide both questions and that both conclusions will carry the full weight of precedent when they are properly addressed in the course of deciding the appeal.
  3. The court considered contrary decisions from the Rajasthan High Court (including a Full Bench) that refused to follow Madras. It observed that the plain words of S.64(b), the context of the section, and the scheme of Section 64 support the Madras interpretation. The court found the reasons of the Rajasthan courts unpersuasive and noted that the High Courts of Patna and Madhya Pradesh had accepted the Madras view.
  4. The court reasoned that the three grounds of grievance in S.64(b) (revocation, suspension, variation of conditions) sensibly refer to grievances of the permit holder; it would be unreasonable for the statute to allow strangers to appeal against a variation of another person's permit. Allowing such appeals would invite speculative or officious litigation, which the plain text of the section does not envisage.
  5. As to Section 64(f), the court observed that the Legislature expressly conferred a right of appeal on a person who had opposed the grant of a permit and was aggrieved by its grant. This showed that when the Legislature intended to give a right of appeal with respect to another person's permit it did so in express and limited terms. The 3rd respondent had opposed only the change of timings (a variation), not the grant of the petitioner's permit; therefore Section 64(f) did not apply.
  6. The court examined the attempt to invoke the statutory fiction in Section 57(8) (treating an application to vary conditions as an application for a new permit) and Rule 208(b) of the Motor Vehicles Rules. Relying on Krishnamurthy, the court held that such legislative fictions are confined to the specific procedural purpose for which they are enacted and cannot be stretched to create a right of appeal under Section 64. Consequently, S.57(8) or Rule 208(b) could not be used to import an appeal right for the 3rd respondent.
  7. Applying these conclusions to the facts — and proceeding even on the common assumption by both sides that a change of timings is a variation of the condition of a permit — the court concluded that the 3rd respondent could not maintain an appeal under Section 64(b) or Section 64(f), nor by invoking the fictions in S.57(8) or Rule 208(b). Therefore the appeal before the Deputy Transport Commissioner was incompetent.

Holding and Implications

Core Ruling: The writ petition is allowed and a writ of prohibition is issued restraining the Deputy Transport Commissioner, Kakinada, from proceeding with the appeal filed by the 3rd respondent, because the appeal was incompetent and the Deputy Transport Commissioner had no authority or jurisdiction to entertain it.

Direct consequences for the parties:

  • The interim order (suspending the RTA's order) issued in the appeal before the Deputy Transport Commissioner cannot be sustained because the appeal itself was not maintainable.
  • The petitioner succeeds in the writ; costs are awarded against the 3rd respondent. The petitioner is awarded advocate's fees of Rs. 100/-. (The petition is accordingly allowed.)

Broader implications noted by the court (as expressed in the opinion): the court adopts the Madras High Court's interpretation of Section 64(b) — limiting the right of appeal to permit holders (or to those expressly provided for by statute) — and rejects attempts to use procedural fictions (S.57(8) or Rule 208(b)) to create a right of appeal by implication.

This summary is based exclusively on the text of the provided opinion and contains no information beyond that opinion.

Show full summary ...

    A. Janardhana Rao v. Deputy Transport Commissioner, Kakinada And Others

    1. The petitioner seeks a writ of prohibition to prevent the Deputy Transport Commissioner, Kakinada from proceeding with an appeal filed before him by the 3rd respondent. The petitioner is the holder of a stage carriage permit for the route Sompeta-Srikakulam. The 3rd respondent has a permit to ply a stage carriage from Jagati to Tekkali Via Sompeta. A stretch of 27 miles is common to both these routes. The petitioner applied to the Regional Transport Authority, Srikakulam, for variation of the timings prescribed for the plying of his bus. That was allowed, in spite of the objections raised by the 3rd respondent. The 3rd respondent thereupon moved the Deputy Transport Commissioner, Kakinada, in appeal. This appeal was entertained and an interim order suspending the operation of the order of the Regional Transport Authority was passed. The petitioner's case is that no appeal lies under Section 64 of the Motor Vehicles Act (hereinafter referred to as ‘the Act’) against the order passed by the Regional Transport Authority in the instant case. The Deputy Transport Commissioner had therefore no authority or jurisdiction to entertain the appeal. He has therefore, to be prohibited from proceeding with it. These contentions are countered by the learned counsel for the 3rd respondent on the ground that the appeal is competent under S. 64(b) or 64(f) of the Act. This is the main controversy between the opposing parties in this writ petition. Section 64(b) of the Act gives a right of appeal to a person “aggrieved by the revocation or suspension of the permit or by an variation of the conditions thereof”. Clause (f) of the same section confers a right of appeal on a person who ‘having opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto.’ In a Letters Patent. Appeal preferred from the decision of Subba Rao, J. (as he these Page: 117was), a Division Bench of the Madras High Court consisting of Rajamannar, C.J and Venkatarama Ayyar, J. in M. Kali Mudaliar v. A. Vedachala Mudaliar, 1952-1 Mad LJ 152 at p. 155 : (AIR 1952 Mad 545 at p. 548) had to deal with the scope of S. 64(b) of the Act. They have observed as follows:

    “Even if the timing can be said to be a condition attached to a permit, we do not agree with the learned Judge that the 1st respondent could be treated as a person aggrieved by the variation of the conditions of the permit within the meaning of clause (b) of S. 64. The expression, “the permit” in that clause must obviously refer to the permit mentioned in cl. (a). That permit is a permit granted to any person by the Transport Authority. We think the proper construction of that clause is to confine its application to persons aggrieved t/y the revocation or suspension of the permits granted to them or aggrieved by any variation of the conditions of such permits granted to them. That clause does not confer a right on one person to appeal against an order varying the condition of a permit granted to another person.”

    2. The learned counsel for the 3rd respondent has strenuously contended that the above opinion was expressed obiter by Rajamannar, C.J who delivered the judgment of the Division Bench. I am not able to agree with this contention. The question whether an appeal lay under S. 64(b) of the Act was one of the material points raised before Subba Rao, J. who disposed of the writ petition and also before the Division Bench, which, disposed of the Letters Patent Appeal. It is beyond the pale of possible doubt that the determination of the question whether a right of appeal was conferred in that case by S. 64(b) of the Act was very relevant. No doubt the Division Bench elaborately dealt with the question whether a change. Of timings was a variation of the condition of a stage carriage permit. They came to the conclusion that it was not. But they did not choose to base their decision solely on this conclusion. They proceeded to consider the merits of the appeal on the basis that a change of timing is a variation of the condition of the permit. This approach requires an interpretation of the provisions of S. 64(b) of the Act, and they interpreted it as stated above. In the circumstances, I am unable to agree that their construction of S. 64(b) must be regarded as obiter dictum. An appeal may present two distinct questions for decisions. Both these questions may be equally potent and a determination of any one of them in favour of the appellant may well result in the appeal being allowed. Yet, the court of appeal may very properly deal with both the questions and express its conclusions on them. This a court is surely entitled to do it is Indubitably proper to do so and no allegation of judicial irrelevancy can attach to its decision on either of the points. There is, in such a case, no travelling beyond the scope of the appeal, no dealing with anything immaterial or irrelevant and no effort which is not directed to an adjudication of the appeal. The decision on both the points will therefore have the full weight of judicial precedent.

    3. It is then urged that the opinion of the Division Bench in 1952-1 Mad LJ 152 : (AIR 1952 Mad 545) has not been followed by the Rajasthan High Court in more than one case. A Division Bench of that court expressly refused to follow it in M/S. Mohammad Jamil v. The State Transport Authority, (S) AIR 1956 Raj 125. This was approved by a Full Bench of the Rajasthan High Court in Jairamdas v. The Regional Transport Authority, Jodhpur, (S) AIR 1957 Raj 312 (FB). The Full Bench decision was naturally followed by the same High Court in Heeralal v. State Of Rajasthan, AIR 1959 Raj 41. But in Nandlal Thana Ram v. Ghani Khan Monaf Khan, AIR 1961 Pat 313, a Division Bench of the Patna High Court expressly dissented from the Rajasthan view. A Division Bench of the Madhya Pradesh High Court in Jasram v. S.T Authority M.P, AIR 1961 Madh Pra 81 also declined to follow the Rajasthan view and preferred to adopt the view of the Madras High Court in 1952-1 Mad LJ 152 : (AIR 1952 Mad 545) (Supra). With the utmost respect to the learned Judges, who rendered decision in the aforesaid Rajasthan cases, their reasons for not accepting the Madras view do not commend themselves to me. The plain words of S. 64(b), the setting in which they occur and the scheme of S. 64 seems to accord with the Madras view which has been accepted by the High Courts of Patna and Madhya Pradesh. The learned I counsel for the 3rd respondent does not gainsay that it is only the person to whom the permit is granted that can be aggrieved by its revocation or suspension. These are two of the three causes for grievance mentioned in S. 64(b). The other cause mentioned in S. 64(b) is variation of the conditions of the permit. The reasonable construction appears to be that the person intended to be aggrieved by this third cause is no other than the holder of the permit the conditions of which were pre-judicially varied. It does not appear reasonable to say that out of the three grounds for grievance mentioned in clause (b), the first two will apply only to the permit holder, but the third will apply not only to him but also to every outsider. Such a construction would permit fanciful and speculative appeals being preferred by rank strangers and officious busy bodies. But it is said that S. 64(b) must be so construed as to confine its ambit within reasonable limits. This would be importing into the interpretation vague and uncertain factors and virtually attempting to legislate. And in the process, an otherwise simple position would be rendered needlessly complex.

    4. If the Legislature intended that one person should be given a right of appeal from an order varying the conditions of another person's permit, it would have expressly enacted to that effect. Section 64(b) cannot be said to be an enactment for that purpose.

    5. I do not think it is reasonable to say that a person who was not entitled to any say before the Regional Transport Authority or who did not object to the variation of the conditions of a permit, must come within S. 64(b). It could not have been intended by the Legislature to let in such utter strangers into the scheme of S. 64. Yet if the interpretation contended for by the learned counsel for the 3rd respondent is accepted, the result would be that any person, irrespective of whether he was entitled to have a say before the Regional Transport Authority in the matter of varying the condition of a particular permit and irrespective of whether he raised any objection to such variation will be competent to prefer an appeal under S. 64(b) of the Act. I see no warrant to attribute such an intention, to the Legislature and no justification to construe S. 64(b) as asked for on behalf of the third respondent.

    6. Under S. 64(f) only a person who raised objection to the grant of a permit to another person and who is aggrieved, because his objection was overruled and the permit was granted, is given a right of appeal. This Page: 118shows that when the Legislature intended to clothe a person with a right of appeal in respect of another person's permit, it did so in quite plain and express terms and also carefully limited the right to those who satisfied the specified requirement of having had objected to the grant of permit before the initial granting authority. The Legislature would have adopted this pattern, if it intended to grant a right of appeal in respect of variation of the conditions of another person's permit.

    7. Having considered the matter from more than one aspect, I am unable to see any fallacy or flaw in the interpretation placed on S. 64(b) by the Madras High Court in (1952) 1 Mad LJ 152 : (AIR 1952 Mad 545). In the present case, both sides invited me to proceed on the footing that a change of timings is a variation of the condition of the permit. Even so, the attempt on behalf of the 3rd respondent to bring his appeal within S. 64(b) of the Act cannot succeed.

    8. The 3rd respondent's learned counsel then contends that if an appeal is not competent under cl. (b) of S. 64 of the Act, it must be held to be permissible under cl. (f) of that Section. The 3rd respondent could come within cl. (f) only if he had opposed the grant of the permit to the petitioner. In the instant case what lie opposed was not the grant of a permit, but only a change of the timings. This is not in any sense opposing the grant of a permit to the petitioner. When the timings were changed as asked for by the petitioner, one cannot say that a stage carriage permit was granted to him. The learned counsel however refers to S. 57(8) of the Act and argues that as an application to vary certain conditions of a permit is required to be treated as an application for the grant of a new permit, a favourable order passed on an application to vary the conditions of a permit must be held to tantamount to the grant of a new permit. This argument fails for two important reasons. First, S. 57(8) of the Act enacts a fiction. A legislative fiction has to be strictly confined to the area assigned to it by the Legislature and must be harnessed only for the specific purpose for which the Legislature created it. The fiction enacted in S. 57(8) is only for the purpose of applying the same procedure in disposing of an application for a new permit and an application to vary the conditions of a permit. The fiction has no larger part to play and no other purpose to serve. When the application to vary the condition of a permit is disposed of, the fiction embodied in S. 57(8) of the Act ceases to have any play whatsoever. It cannot be transplanted in another area and put to another use. It cannot be imported into the construction of S. 64 or invoked in determining as to the maintainability of an appeal under that section. A right of appeal is a creature of statute and has to be expressly conferred by statute; it cannot be inferred by implication, much less by stretching a fiction beyond its permissible limits and putting, it to a use far different from what it was intended to serve by the Legislatures in Krishnamurthy v. Ceded District Auto Transport Co. Ltd., 1953-1 Mad LJ 81 : (AIR 1953 Mad 321) a Bench of the Madras High Court composed of Satyanarayana Rao and Rajagopalan, JJ., in dealing with R. 208(b) of the Motor Vehicles Rules whiclj embodied a fiction more or less similar to that enacted in S. 57(8) of the Act, pointed cut:

    “The mere fact that in the last part of R. 208(b) the Transport Authority is directed to deal with the matter as if it were an application for a permit does not carry with it by implication even a right of appeal, as if it was a refusal to grant a permit within the meaning of S. 64(a) of the Act.”

    9. I am, therefore, wholly unable to accede to the contention of the 3rd respondent's learned counsel that the fiction embodied in S. 57(8) should be engrafted on S. 64(f) and by that process a right of appeal must be predicated in, favour of the 3rd respondent.

    10. The other ground for rejecting the contention of the 3rd respondent is that S. 57(8) does not comprehend applications to vary timings. It cannot, therefore, be called in aid in the present case which relates only to a successful application for change of timings.

    11. The learned counsel for the 3rd respondent finally argues that whatever may be the position with respect to S. 57(8) of the Act, R. 208(b) can well be pressed into service by the 3rd respondent. I find it quite difficult to see how in the instant case R. 208(b) can avail the third respondent. As I already indicated, the fictior which this rule has created for a special purpose cannot foe employed for quite another purpose and to achieve a result which was plainly not in the contemplation of the rule making authority. The case of the 3rd respondent is not in any manner advanced by seeking the aid of Rule 208(b) of the Motor Vehicles Rules. In view of the foregoing, I have no hesitation to hold that the appeal preferred by the 3rd respondent to the Deputy Transport Commissioner Kakinada was incompetent and that the Dy. Transport Commr. had no authority or jurisdiction to entertain it or to proceed with it. A writ of prohibition as asked for by the petitioner will, therefore, issue. The writ petition is accordingly allowed. The petitioner will get costs from the third respondent Advocate's fee Rs. 100/-

    JH/K.S.B

    12. Petition allowed.

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    A. Janardhana Rao v. Deputy Transport Commissioner, Kakinada And Others
    (Jun 18, 1964)