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Patiala Bus (Sirhind... v. State Transport Appe...
Structured Summary of the Opinion (Muni Lal Verma, J.)
Factual and Procedural Background
The petitioners (Transporters Private Ltd.) held a stage carriage permit for one vehicle providing two return trips on the Patiala–Bassi via Rajpura route. They applied to the State Transport Commissioner (the Commissioner) to extend that route beyond Bassi up to Morinda. The substance of their applications was published under section 57(3) of the Motor Vehicles Act, 1939 in the weekly Shamsher Hind, Patiala dated 1 November 1973. No written objections or representations were received within the prescribed time.
On 11 February 1974, at a meeting held by the Commissioner, Ambala Bus Syndicate (Private) Ltd. (the respondent) appeared and raised an objection orally that the extension would adversely affect its business because it operated on the Ropar–Sirhind route which included the disputed distance (Bassi–Morinda). The Commissioner rejected the objection as time-barred and not furnished in the prescribed manner, and he allowed the petitioners' applications, extending the route up to Morinda.
The respondent appealed to the State Transport Appellate Tribunal, Punjab. By order dated 5 June 1974 (the impugned order), the Tribunal set aside the Commissioner's order and declined the extension sought by the petitioners. The petitioners challenged the impugned order by a writ petition under Articles 226/227 of the Constitution, claiming the Tribunal's order was illegal, void, wrongful and without jurisdiction.
Written statements were filed by both the respondent and the Commissioner. Certain material facts were admitted: both parties are transporters; the petitioners had the Patiala–Bassi via Rajpura permit; the respondent operated on a route including the 9-mile stretch from Morinda to Bassi; the Commissioner allowed the extension; the Tribunal reversed that allowance.
Legal Issues Presented
- Whether the petitioners' applications to extend their permit so as to include the distance between Bassi and Morinda were governed by sub-section (8) of section 57 of the Motor Vehicles Act, 1939, or by clause (xxi) of section 48(3) (which requires one month's notice and certain findings before varying a permit condition).
- Whether the Commissioner could grant the extension without complying with the procedure that clause (xxi) of section 48(3) (and its proviso) prescribes—specifically, whether one month's notice and recorded findings about public convenience and non-expediency of a separate permit were required.
- Whether the Commissioner's order of 11 February 1974 was without jurisdiction because the date of hearing was published in such a manner that the hearing took place within 30 days of publication (contravening section 57(3)).
- Whether the respondent (a third party operator who did not submit a written representation within the prescribed time) had the right to object before the Commissioner or to prefer an appeal to the Tribunal under section 64(1) (clauses (b) or (f)).
Arguments of the Parties
Petitioners' Arguments (as summarized in the opinion)
- The applications were governed by section 57(8) (an application to include a new route or distance beyond a terminus) and not by clause (xxi) of section 48(3); therefore the Tribunal's reliance on clause (xxi) was incorrect.
- The phrase "shall be treated as an application for the grant of a new permit" in section 57(8) creates a procedural fiction limited to the procedure to be followed after receipt of such an application, and does not convert the application into a new-permit application requiring pre-application formalities (for example, security deposit under section 45(3)).
- The respondent, having failed to make a written representation within the appointed time under section 57(3)/(4), was precluded from being heard before the Commissioner and had no right to appeal to the Tribunal against the Commissioner's order.
Respondent's Arguments (as summarized in the opinion)
- Counsel for the respondent (Shri N.K. Sodhi) contended that because section 57(8) states such an application "shall be treated as an application for the grant of a new permit", the petitioners' applications must be regarded as applications for a new permit in every respect; consequently, provisions applicable to a new-permit application (including sections 45 and 46 and the requirement of deposit under section 45(3)) applied and the applications were incompetent.
- It was argued that the Commissioner had not "invited" the applications (i.e., the Regional Transport Authority should have appointed dates for receipt of applications) and therefore the applications were incompetent under section 57(2).
- The respondent contended the publication in Shamsher Hind was defective because it did not state the date, time and place of hearing; contended that a single publication should include substance of the application and the hearing particulars so as to satisfy section 57(3).
- The respondent asserted it had a right of hearing and, despite failing to submit a written representation within the time, could raise objections orally before the Commissioner and could appeal to the Tribunal under section 64(1) (either clause (b) or clause (f)).
- It was also argued that the disputed distance fell within Punjab territories under the approved scheme and therefore should not have been extended to a PEPSU operator.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| The Akal Transport Company P. Ltd. v. The District Judge, Ludhiana (A.I.R. 1973 P. & H. 338) | Clause (xxi) of s.48 applies to variation of distance where the original termini remain the same; extension beyond a terminus falls under s.57(8). | The court relied on this authority to support its conclusion that the petitioners' application (which extended the route beyond a terminus) was governed by s.57(8), not clause (xxi) of s.48(3). |
| Shrinivasa Reddy v. State of Mysore (A.I.R. 1960 S.C. 350) | Interpretation of s.57(2): if the Regional Transport Authority has not appointed dates for receipt of applications, the applicant must apply at least six weeks before the date on which the permit is desired to take effect. | The court followed this Supreme Court observation to reject the respondent's argument that only the Commissioner could initiate applications; it held the petitioners' applications were timely (made more than six weeks before effect). |
| Fazilka Dabwali Transport Co. (P.) Ltd. v. The State of Punjab (Civil Writ No. 2044 of 1989, decision dated 13 March 1970) (unreported in text) | Relied upon by respondent to argue that applications were incompetent because the Commissioner had not invited them. | The court noted the reliance but disagreed with the respondent, following Shrinivasa Reddy instead; it found the applications competent when made in accordance with s.57(2). |
| Sudhir Kumar Sadhu v. Regional Transport Authority, Burdwan (A.I.R. 1964 Cal. 442) | Earlier authority relied on regarding competency where applications are not invited by the Authority. | The court observed that this case had been relied on in Fazilka Dabwali but that Shrinivasa Reddy (supra) had not been considered there; the court preferred the Supreme Court view and rejected the respondent's reliance on this case. |
| Lallu Narain v. The Regional Transport Authority, Jaipur Region (I.L.R. 1970 20 Raj. 16) | Supports the view that the date/time/place of hearing may be published subsequently and that commencement of the 30-day period for hearing runs from that publication. | The court relied on this authority to accept the possibility of separate publications (one for substance/date for representations, another for hearing particulars) and to analyze which publication started the 30-day period. |
| Maharashtra State Road Transport Corporation v. Mangrulpur Joint Motor Service Co. (P) Ltd. (1971 2 SCC 222) | Publication required by s.57(3) is a statutory obligation; the date fixed for consideration must not be earlier than 30 days from publication. | The court used this Supreme Court authority to hold the Commissioner's consideration and grant within 30 days of the published hearing date deprived him of jurisdiction. |
| United Transport Company, Mangalore v. Regional Transport Authority (A.I.R. 1964 Mys. 26) | Instances where disposing of applications within 30 days of publication invalidates jurisdiction. | Used to support the conclusion that the Commissioner's act of deciding within 30 days was a vital defect affecting jurisdiction. |
| Pal Singh v. State Transport Authority Tribunal, U.P. (A.I.R. 1957 All. 254) | Similar support for mandatory nature of publication and time limits for hearing. | Cited to reinforce that disposing of applications before the expiry of the prescribed period is a jurisdictional defect. |
| Janta Co-operative Transport Society, Patiala v. The State of Punjab (C.W. No. 2103 of 1964) | Failure to submit a written representation within the appointed time precludes a person from being heard and from challenging orders of the Appellate Authority. | The court relied on this to hold the respondent, having not made a written representation in time, was precluded from being heard and from appealing to the Tribunal. |
| Victory Public Hill Motor Transport Co. (Pvt.) Ltd. v. Kartar Bus Service Ltd., Jullundur (A.I.R. 1971 P. & H. 491) | Supports the principle that failing to file the required representation precludes participation and appeal rights. | Used alongside Janta Co-operative to preclude the respondent from appealing or being heard because no timely written representation had been filed. |
| M. Ramayya v. State of Madras (A.I.R. 1952 Mad. 300) | Authorities suggesting a party may have a right of hearing despite procedural lapses (cited by respondent). | The court considered these authorities but ultimately found the opposite view (that failure to file a written representation precludes hearing) more persuasive on the facts. |
| M. Krishna Muniswamy Pillai v. State of Mysore (A.I.R. 1960 Mys. 11) | Similar to M. Ramayya; cited for the proposition that a party may retain hearing rights. | The court examined these decisions but rejected their applicability, holding s.57(4) barred an oral objection when no written representation was filed in time. |
| Jairamdas v. Regional Transport (A.I.R. 1957 Raj. 312) | Rajasthan High Court authority allowing third-party appeals under s.64(1)(b) in some circumstances. | The court noted this contrary view but declined to follow it; it aligned with authorities restricting s.64(1)(b) to persons aggrieved in relation to their own permits. |
| Heeralal v. The State of Rajasthan (A.I.R. 1959 Raj. 41) | Another Rajasthan decision supporting third-party appeal rights under s.64(1)(b). | The court acknowledged these decisions but declined to accept their interpretation, siding with other High Courts that restrict clause (b). |
| Ram Swamp v. State Transport Appellate Tribunal, U.P. (A.I.R. 1970 All. 182) | Authorities taking the view that third parties cannot appeal under s.64(1)(b) (dissenting from the Rajasthan view). | The court relied on these authorities to construe s.64(1)(b) as not conferring third-party appeal rights against variation of another person's permit. |
| A. Janardhana Rao v. Deputy Transport Commissioner, Kakinanda (A.I.R. 1965 A.P. 115) | Support for limiting s.64(1)(b) appeals to those aggrieved in respect of their own permits. | Applied as part of the line of authorities holding clause (b) does not grant third-party appeal rights; court adopted that construction. |
| Jasram v. State Transport Authority, M.P., Gwalior (A.I.R. 1961 M.P. 81) | Supportive authority for restricting third-party appeals under s.64(1)(b). | Used to reinforce the court's conclusion that the respondent lacked a right to appeal under clause (b). |
| Nanalul Thana Ram v. Ghani Khan Monaf Khan (A.I.R. 161 Pat. 313) | Authority consistent with restricting the scope of s.64(1)(b) to persons aggrieved about their own permits. | Relied upon alongside other cases to conclude the respondent could not appeal under clause (b). |
| V.G.K Bus Service Ltd. v. Kerala State Transport Appellate Tribunal (A.I.R. 1960 Kar. 18) | Similar authority limiting clause (b) appeals to persons aggrieved in respect of permits granted to them. | Used to support the court's interpretation of s.64(1)(b) and to disallow the respondent's appeal. |
| P. Swarajyalakshmi v. State of Andhra Pradesh (A.I.R. 1959 A.P. 321) | Support for the view that failure to file a written representation precludes participation. | Cited in support of the conclusion that the respondent was precluded from raising objections or appealing because it had not filed a written representation in time. |
| Sri Raja Raieswari Bus Service Virdhachalam v. The Regional Transport Authority (A.I.R. 1969 Mad. 458) | Similar authority holding a late or absent written representation precludes participation or appeal. | Relied on to bolster the court's conclusion that the respondent lacked locus to appeal or be heard before the Commissioner. |
Court's Reasoning and Analysis
The court's analysis proceeded in discrete steps, applying statutory definitions and provisions to the facts and addressing each contention made before it:
- Statutory definitions and structural reading — The court examined definitions of "area" and "route" and relevant provisions of the Motor Vehicles Act (sections 48(3)(i) including clause (xxi), section 57 sub-sections (2), (3), (4) and (8), and section 64(1) clauses (b) and (f)). It emphasized that clause (xxi) is concerned with variation of the route where the termini remain the same, while s.57(8) governs inclusion of a new route or distance beyond a terminus (which is treated as an application for a new permit for procedural purposes).
- Characterization of the petitioners' application — On the facts, the Commissioner allowed inclusion of the 9-mile stretch between Bassi and Morinda, which changed the terminus from Bassi to Morinda. The court held that this constituted an extension beyond a terminus and therefore fell within s.57(8), not within clause (xxi) of s.48(3). Consequently, the Tribunal's contrary conclusion (that clause (xxi) applied) was erroneous.
- Effect of the phrase "shall be treated as an application for the grant of a new permit" (s.57(8)) — The court distinguished procedural status from substantive conversion: it accepted the petitioners' argument that the phrase creates a procedural fiction regarding the procedure to be followed after receipt of the application, but does not impose the pre-application formalities applicable to a new-permit application (such as deposit required by s.45(3)) at the stage before making the application. The court limited the fiction to ensuring that the procedural regime for disposing of the application post-receipt is like that for new-permit applications.
- Timing of application under s.57(2) — The court followed Shrinivasa Reddy (Supreme Court) to conclude that s.57(2) supplies two alternatives: if the Regional Transport Authority appoints dates for receipt, applications must comply with those; if not, the intending operator must apply at least six weeks before the desired operative date. Thus the court rejected the contention that the Commissioner alone must "invite" applications and held the petitioners' applications were timely (they were made more than six weeks before effect).
- Publication and jurisdiction under s.57(3) — The court examined the publications: substance and the date for making representations were published in Shamsher Hind on 1 November 1973; the date/time/place of hearing (initially February 8, 1974) was published in Daler Punjab on 4 February 1974. The Commissioner ultimately disposed of the matter on 11 February 1974. The court held that the 30-day minimum between date of publication of the hearing and the hearing itself (mandated by s.57(3)) was not respected, and disposing of the application within 30 days of the published hearing date was a vital defect that deprived the Commissioner of jurisdiction. The court relied on higher and persuasive authorities (including Maharashtra State Road Transport Corporation v. Mangrulpur and United Transport Company, Mangalore) to treat this as a jurisdictional bar.
- Competence to object and to appeal — The court construed s.57(3)–(4) strictly: representations must be in writing and filed before the appointed date; failure to do so precludes being heard at any stage (original or appellate). Relying on Janta Co-operative and Victory Public Hill, as well as other authorities, the court concluded the respondent, having not filed a written representation within the appointed time, was precluded from raising objections before the Commissioner and had no right to appeal to the Tribunal (either under clause (f) or clause (b) of s.64(1)).
- Construction of s.64(1)(b) — The court reviewed conflicting High Court authorities. It adopted the view expressed in several decisions (Ram Swamp and others) that clause (b) should be read in the context of clause (a) so that it applies to persons aggrieved by revocation/suspension or variation of permits granted to them — not to third parties who objected to another's permit. The court therefore held the respondent did not have a right to appeal under s.64(1)(b) against variation of the petitioners' permits.
- Net result of the reasoning — The impugned order of the Tribunal was erroneous because the appeal before it was incompetent (the respondent lacked a right to appeal) and because the Tribunal accepted an incorrect premise about the governing statutory provision (clause (xxi) rather than s.57(8)). Separately, the Commissioner's order of 11 February 1974 (which the Tribunal had set aside) was itself without jurisdiction because it contravened the mandatory timing requirement in s.57(3) for publication and hearing.
Holding and Implications
Holding: The writ petition is allowed and the impugned order of the State Transport Appellate Tribunal dated 5 June 1974 is quashed.
Direct consequences and remedial directions contained in the opinion:
- The court struck down the impugned order because the appeal on which it was founded was incompetent (the respondent had no right to prefer it) and because the Tribunal's conclusion about the governing statutory provision was erroneous.
- The court made clear that quashing the impugned order does not validate the Commissioner's order dated 11 February 1974: that order was held to have been passed without jurisdiction because the Commissioner considered and decided the applications within 30 days of the published hearing date, in contravention of the mandatory provisions of section 57(3).
- The Commissioner is at liberty to consider the petitioners' applications afresh, but only after publishing the date of hearing in compliance with section 57(3) — the hearing date must be not less than 30 days from the date of publication.
- Costs: the court left the parties to be their own costs.
Broader implications: The opinion resolves statutory interpretation questions of procedure under the Motor Vehicles Act (notably the distinction between clause (xxi) of s.48(3) and s.57(8), and the effect of the procedural fiction in s.57(8)), and reiterates the mandatory character of publication and time requirements under s.57(3) and the strictness of s.57(4) regarding written representations. The court did not purport to lay down any novel precedent beyond the interpretive conclusions expressly stated.
Order pronouncement in the opinion: "Petition allowed" (final line of the opinion).
Muni Lal Verma, J.:— The circumstances giving rise to this writ petition may be briefly stated as under:
2. The petitioners, who are Transporters Private Ltd., and held one permit for two return trips each on Patiala Bassi via Rajpura route, applied to the State Transport Commissioner (Respondent 2, hereinafter called the Commissioner) for extension of the said route beyond Bassi upto Morinda. The contents of their applications were published under section 57(3) of the Motor Vehicles Act, 1939 (hereinafter called the Act) in the weekly ‘Shamsher Hind’ Patiala dated November 1, 1973, but no objections or representation against the said applications had been received from any person or transporter within the requisite time. In the meeting held by the Commissioner at Patiala on February 11, 1974, appearance was made on behalf of Ambala Bus Syndicate (Private) Ltd., Ropar (Respondent 3, hereinafter called the respondent) and an objection was raised against the extension of the aforesaid route applied for by the petitioners, on the ground that grant of the extension of the route would adversely affect its (the respondent's) business, since it was existing operator and had been plying buses on Ropar-Sirhind route, which included the distance from Bassi to Morinda, for which extension had been prayed for. The said objection did not prevail with the Commissioner for the reason that the aforesaid objection had not been made within the time limit and no copy thereof had been furnished to the petitioners Finding that the extension of the route prayed for was in the interest of the public, the Commissioner allowed the applications of the petitioners and extended Patiala Bassi via Ropar route upto Morinda. Aggrieved by the said order dated February 11, 1974, the respondent carried appeal to the State Transport Appellate Tribunal. Punjab (hereinafter called, the Tribunal). By its order dated June 5, 1974 (hereinafter called the impugned order), the Tribunal set aside the aforesaid order of the Commissioner and the extension of the routs prayed for by the petitioners was defined. Therefore, the petitioners have made this petition under Articles 226/227 of the Constitution, impeaching the impugned order as illegal, void, wrongful and without jurisdiction, on the grounds:—
(i) That the applications moved by them were governed by sub-section (8) of section 57 of the Act and the Tribunal was wrong in finding that the said applications were governed by clause (xxi) of section 48(3) of the Act;
(ii) that its (the Tribunal's) approach that the Commissioner could not grant extension of the route without recording a finding that grant of separate permit for the extended portion of the route, i.e, from Bassi to Morinda, was not expedient, was wrong or that the Tribunal had not given one month's notice as required by clause (xxi) of section 18(3) of the Act.
3. So, the petitioners claim writ of certiorari for quashing the impugned order. Written statements were put in by the respondent as well as on behalf of the Commissioner.
4. The facts, that the petition is as well as the respondent are transporters, that the petitioners had been operating buses with one permit with two return trips each on Patiala-Bassi via Rajpura route, and that the respondent had been plying buses on Roper-Sirhind route via Morinda and Bassi, which includes distance of 9 miles from Morinda to Bassi, are not disputed. The further facts, that the petitioners had applied for extension of Patiala-Bassi route via Rajpura, from Bassi to Morinda, that the said extension of the route was allowed to them by the Commissioner, and on appeal the Tribunal, by the impugned order, had set aside the order of the Commissioner and declined the extension of the said route to the petitioners, are also admitted.
5. The relevant provisions contained in different sections of the Act, reproduced below, will be helpful in deciding the points of controversy raised before me. “Area”, as defined in sub-section (1) of section 2 of the Act means such area as the State Government may, having regard to the requirements of that provision, specify by notification in the Official Cazette. “Route”, as defined in sub-section (28A) of section 2 means a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another. Section 48(3)(i) provides that the Regional Transport Authority while granting a stage carriage permit may attach to the permit the condition that the vehicle or vehicles shall be used only in a specified area, or on a specified route or routes. Its clause (xxi) reads as under:—
“that the Regional Transport Authority may, after giving notice of not less than one month,—
(a) vary the conditions of the permit,
(b) ***
Provided that the conditions specified in pursuance of clause (i) shall not be varied so as to alter the distance covered by the original route by more than 24 kilometers, and any variation within such limits shall be made only after the Regional Transport Authority is satisfied that such variation will serve the public convenience and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof.”
6. Sub-sections (2), (3), (4) and (8) of section 57 are to the following effect:—
“(2) An application for a stage carriage permit or a public carrier's permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, or if the Regional Transport Authority appoints dates for the receipt of such applications, on such dates.
(3) On receipt of an application for a stage carriage permit or a public carrier's permit, the Regional Transport Authority shall make the application available for inspection at the office of the Authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date, not being less than thirty days from such publication, on which, and the time and place at which, the application and any representations, received shall be considered:
(4) No representation in connection with an application referred to in sub-section (3) shall be considered by the Regional Transport Authority unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the person making such representation.
(8) An application to vary the conditions of any permit, other than a temporary permit, by the inclusion of a new route or routes or a new area or, in the case of a stage carriage permit, by increasing the number of trips above the specified maximum or by altering the route covered by it or in the case of a contract carriage permit or a public carrier's permit, by increasing the number of vehicles covered by the permit, shall be treated as an application for the grant of a new permit:
7. Clauses (b) and (f) of section 64(1) read thus:—
“64(1) any person—
(b) aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, or
(f) being a local authority or police authority or an association which, or a person providing transport facilities who, hiding opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto,
may, within the prescribed time and in the prescribed manner, appeal to the State Transport Appellate Tribunal……”
8. The provisions contained in clause (i) and (a) of clause (xxi) and proviso thereto, of Sub-section (3) of section 48 and sub-section (8) of section 57, when, read in the light of the definitions of “route” and “area”, reproduced above, make it clear that a transporter holding a stage carriage permit can apply to the Regional Transport Authority to vary conditions respecting the route specified in the permit. The said variation may relate to alteration of the line of travel covered by the said route. That would be a case where two termini of the original route remain the same and it is only the way or the distance covered by the said route which is required to be changed. If alteration of the distance covered by the original route on account of variation of the same does not exceed 24 kilometers, the application to very the condition attached to the permit under clause (i) of sub-section (3) of section 48 would be governed by (a) of clause (xxi) and proviso attached thereto, of section 48(3). In that case, the Regional Transport Authority, after giving one month's notice, may allow the variation of the original route if he is satisfied that the said variation would serve the public convenience and it is not expedient to grant a separate permit in respect of the original routes as so varied or any part thereof. But if the application for variation of the aforesaid condition relates to inclusion of a new route or distance beyond one of the two termini of the original route it will be governed by sub-section (8) of section 57. In such a case, the two termini may not remain the same. Both or even one of the termini of the route may be changed or a new area may be included in the original route. Similar view was taken in The Akal Transport Company P. Ltd. v. The District Judge, Ludhiana . A.I.R 1973 P. & H 338., wherein it was observed in para 4 as under:—
“Clause (xxi) applies to the variation of the distance covered by the original route, that is, the termini prescribed for the original route should remain the same or, in other words, this clause applies only to a diversion of a route between two termini fixed for the original route and not for the extension thereof beyond one of the two termini. If a route has to be extended beyond one of the two termini, the application has to be made under Section 57(8) and not under clause (xxi) of Section 48(3) of the Act.”
9. In the case governed by sub-section (8) of section 57 of the Act, the application for extension of route by including a new route or distance beyond one of the two termini would be treated as an application for the grant of a new permit. In the case in hand, the Commissioner allowed the applications for extension of the original Patiala-Bassivia Rajpura route up to Morinda by including the distance of 9 miles between Bassi and Morinda. That would mean that by inclusion of distance between Bassi and Morinda in the aforesaid original route, one of the termini of that route had been changed and it would be Morinda instead of Bassi. Therefore, the applications made by the petitioners to vary the condition attached to their permits so as to include the distance between Bassi and Morinda clearly fell within sub-section (8) of section 57, and were not governed by (a) of clause (xxi) and proviso thereto, of section 48(3). As soon as it is held, as I do, that the applications, referred to above, made by the petitioners were governed by sub-section (8) of section 57, the view of the Tribunal that the said applications were governed by (a) of clause (xxi) and proviso thereto, of section 48(3) is faulty. Therefore, the approach of the Tribunal that the order dated February 11, 1974, passed by the Commissioner, allowing extension of the route to the petitioner, was bad because he did not give one month's notice and did not record the findings that the variation would serve the public convenience and that it was not expedient to grant a separate permit in respect of the original route as so varied or my part thereof, or that he had not himself initiated the proceedings for extension of the route, is erroneous on the face of it for the obvious reason that the said applications of the petitioners were not governed by (a) of clause (xxi) and proviso attached thereto, of section 48(3), but were governed by sub-section (8) of section 57.
10. Relying on the expression “shall be treated as an application for the grant of a new permit”, occurring in sub-section (8) of section 57 of the Act, Shri N.K Sodhi, learned counsel for the respondent, argued that the applications of the petitioners being for inclusion of distance between Bassi and Morinda in the original route Patiala-Bassi via Rajpura had to be regarded as applications for new permit in every respect and, therefore, all the provisions relating to making of an application for a new permit, as contained in section 45, 46 of the Act, were attracted and, as the said applications did not conform with the said provisions and were not accompanied with the deposit of security, as required by sub-section (3) of section 45, the same (application) were incompetent. In reply to the said argument, Shri Laxmi Grover, learned counsel for the petitioners, maintained that the aforesaid expression provided procedure for dealing with such applications and it did not grant to the same the status of an application for a new permit so i.e to require the compliance of all the provisions applicable to an application for the grant of a new permit from its inception. Treat would mean to deal or handle in a particular manner. Therefore, the provision contained in sub-section (8) of section 57 that an application to vary condition of any permit so as to extend the original route by including a new route or distance beyond one of its two termini should be treated as an application for grant of a new permit, creates only a fiction requiring that procedure as applicable to an application for grant of a new permit would be followed in disposing of such an application. The proposition that legislative fiction has to be strictly confined to the purpose for which it is enacted and its scope cannot be enlarged, is, I think, incontrovertible. Therefore, I am inclined to agree with the learned counsel for the petitioners that the a for said expression makes provision for the procedure that would be applied to an application to vary condition of the permit. The provision contained is sub-section (8) of section 57, in my opinion, gives to an application to vary condition of the permit a notional status of an application for a new permit with regard to the procedure to be applied to it. So, it is in the matter of procedure to be followed after receipt that such an application, (i.e, the one to vary condition of the permit) and an application for the grant of a new permit should be treated alike. But the procedural formalities applicable to an application for the grant of a new permit before its miking are not applicable to an application to vary condition of the permit. Thus, I finding no force in the argument of the learned counsel for the respondent overrule the same.
11. Shri N.K Sodhi then relying on the unreported judgment of this Court in Fazilka Dabwali Transport Co. (P.) Ltd., Abohar v. The State of Punjab . CW 2044 of 1919., Civil Writ No. 2044 of 1989, decided on March 13, 1970, and Sudhir Kumar Sadhu v. Regional Transport Authority, Burdwan . AIR 1964 Cal. 442., contended that the applications made by the petitioners were incompetent because the Commissioner (Regional Transport Authority) has not invited the same. Sub-section (2) of section 57 contemplates two dates, i.e, one from which the permit had to take effect and the second, which is appointed by the Commissioner to receive applications for stage carriage permits. This raises a vital question relating to interpretation of the expression “the date on which it is desired that the permit shall take effect” occurring in Sub-section (2) of section 57 of the Act. “Desired” would import the wish of the intending operator about the date from which he intends to run the stage carriage on the permit for which he had made the application So, I think Sub-section (2) of section 57 of the Act, provides two alternative dates for making application. Firstly, if the Regional Transport Authority has appointed any date for receipt of applications for stage carriage permit, the applications for the same have to be made before that date. If he has not fixed any such date, then the intending operator has to make application for such a permit at least six weeks before the date from which he wishes to operate the stage carriage on the permit. The two commas, which occur before and after the word ‘or’ in Sub-section (2) of section 57, separate the two portions of the said provision from each other, and give an unmistakable indication that if the Regional Transport Authority has fixed any date for receipt of applications, the same have to be made before that date. But in case no such date has been fixed by him, the intending operator will have to make the application at least six weeks before the date from which he intends to operate the stage carriage. The period of six weeks seems to have been provided with a view to ensure sufficient time for the Regional Transport Authority to satisfy the procedural requirements which are conditions precedent for the grant of permit. There could not be any necessity for enacting provision for fixing two dates by Regional Transport Authority. The desired effect could be well secured by making provision for fixation of date by him for receipt of applications for stage carriage permit. So, the circumstance that the provision contained in Sub-section (2) of section 57 contemplates two alternative dates runs counter to the contention that both the dates were to be determined by the Regional Transport Authority and rather weighs in favour of the argument that the date appointed for receipt of applications for stage carriage permit has to be fixed by the Regional Transport Authority, while it is for the intending operator to see that he makes application at least six weeks before the date on which he wants to ply the stage carriage on the permit. The following observations made by the Supreme Court in Shrinivasa Reddy v. State of Mysore . AIR 1960 SC 350. at page 352:—
“Then comes S. 57(2) which lays down that an application for a stage carriage permit (with which we are concerned in this case) shall be made not less than six weeks before the date on which it is desired that the permit shall take effect or if the Regional Transport Authority appoints date for the receipt of such applications, on such dates. In this case the Regional Transport Authority had appointed no date and clearly therefore the Undertaking should have applied not less than six weeks before the date on which it desired to start the service.”
12. Are significant, and clearly support the view which I have taken. In Fazilka Dabwali Transport Company's case (supra), reliance was placed on Sudhir Kumar Sadhu's case (supra), but the observations of the Supreme Court made in Shrinivassa Reddy's case (supra) were not referred to either in the aforesaid Sudhir Kumar Sadhu's case or in Fazilka Dabwali Transport Company's case. Therefore, I, following the observations of the Supreme Court in Shrinivassa Reddy's case, disagree with Shri Sodhi that applications made by the petitioners for extension of the route were incompetent, because the Commissioner had not invited the same and I am unable to accept the view of the Tribunal that it was for the Commissioner only to initiate the proceedings if he had felt the necessity of extension of Patiala-Bassi via Rajpura route up to Morinda and the petitioners could not apply for the said extension of their own accord.
13. It is apposite to mention here that the substance of the applications made by the petitioners for extension of the aforesaid route was duly published in the weekly Shamsher Hind, Patiala, of November 1, 1973, and objections or representations against the said extension of the route were invited within 30 days from the said publications. No objection or representations in writing had been made to the commissioner against the grant of the aforesaid extension of the route. It was on February 11, 1974, i.e, more than 3 month after making of the applications by the petitioners for the extension of the route as well as from publication of substance of the same in the aforesaid paper, that the Commissioner allowed the extension of the route to them. Therefore, it is evident that the applications for extension of the route had been made by the petitioners admittedly more than six weeks before the date when the permit for the extended route had taken effect.
14. Shri N.K Sodhi then argued that the publication made in the weekly Shamsher Hind was defective, inasmuch as the date, time and place at which the applications and representations would be considered, had not been notified in it. According to him, there should be one publication which should publish the substance of the application made for the grant of permit, and also the date, time and place of hearing of the application and objections, if any, made against the grant of the permit applied for. The provision contained in sub-section (3) of section 57 directs the simultaneous publication of the application or its substance, (ii) the date for making representations and (iii) the date, time and place of hearing of the application and the representations, if any, received, but there is nothing in the said provision which could bar publication of the application or the substance thereof and the date for receipt of representation thereto at one time in a paper and to publish the date, time and place of hearing of the said application and the representation, if received, in some paper of subsequent date. The words “such publication” occurring in sub-section (3), of section 57, in my opinion, go with the date of hearing. The date fixed in the publication for receipt of representations in connection with the application made for a stage carriage permit may be less than 30 days from he date of publication. But the date of hearing the application and representation, if any, cannot be less than 30 days from the date of publication. Therefore, if the Regional Transport Authority instead of publishing the application or substance thereof, the date for making representations and the date of hearing simultaneously in the paper, directs the publication of the application or its substance and the date for sub-mission of representation in one paper, and publication of the date, tine and place of hearing in the second piper subsequent thereto, the period of 30 days for hearing the application and the representations, if any, would commence from the date of publication, in the second paper. Similar view was taken in Lallu Narain v. The Regional Transport Authority, Jaipur Region . I.L.R 1970 20 Raj. 16.. In the instant case, the substance of the applications made by the petitioners for extension of the route as well as the time for making representations thereto were published in the weekly Sham her Hind, Patiala, on November 1, 1973. The date, time and place of hearing of the said applications and the representations, if any, received were not published in that paper. The date of hearing which was February 8, 1974, was, however, published in the weekly Daler Punjab, Patiala, on February 4, 1974. It appears from the record produced by Shri J.S Wasu that the aforesaid applications made by the petitioners could not be heard and disposed of on February 8, 1974, for lack of time and the same were adjourned to February 11, 1974, for consideration. It would, therefore, show that the date fixed for hearing the aforesaid applications, i.e February 8, 1974, having been published in weekly Daler Punjab, Patiala, on February 4, 1974, and the date when the same were actually considered, i.e, February 11, 1974, were within 30 days of the said publication, and that was contravention of the provisions contained in sub-section (3) of section 57 of the Act. This leads to the question as to whether the said contravention of that provision took away the jurisdiction of the Commissioner to decide the applications and render the order passed by him on February 1, 1974, allowing the extension of the route to the petitioners, a nullity? Provisions of sub-section (3) of section 57 are mandatory and cannot be contravened. It was observed in para 21 at page 1809 in Maharashtra State Road Transport Corporation v. Mangrulpur Joint Motor Service Co. (P) Ltd. . 1971 2 SCC 222, that the publication as required by the said provisions is a statutory obligation. It is imperative that the date fixed for consideration of the application must not be earlier than 30 days from the date of its publication Therefore, the Regional Transport Authority (the Commissioner in the case in hand) cannot have any jurisdiction to dispose of the application within 30 days of its publication. As such, the act of the Commissioner in considering the applications made by the petitioners for extension of route and granting the same within 30 days from February 4, 1974, when the date fixed for hearing had been published in the weekly Daler Punjab, Patiala, constitutes a vital defect which goes to the root of the matter and deprived him (the Commissioner) of his jurisdiction to grant the same on that date. I am supported in this view by United Transport Company, Mangalore v. Regional Transport Authority . A.I.R 1964 Mys. 26. and Pal Singh v. State Transport Authority Tribunal, U.P . A.I.R 1957 All. 254..
15. An order which can be saved by the provisions contained in Sub-section (2) of section 134 must not be the one which had been passed without jurisdiction. The said provisions would not apply because the order of the Commissioner dated February 11, 1974, whereby he allowed extension of the route to the petitioners, was without jurisdiction since he had, in contravention of the mandatory provisions of sub-section (3) of section 57, fixed the date of hearing within 30 days of its publications. He could not get jurisdiction to dispose of the said applications on February 11, 1974, which was within 30 days of the aforesaid publication.
16. The next contention of the learned counsel for the respondent was that the petitioners were operators in PEPSU territories and the distance between Bassi and Morinda is a part of Ropar-Sirhind route, on which the respondent had been plying buses and it fell within the Punjab territories as contemplated by the approved scheme and, as such, extension of the route covering that distance could not be granted to the petitioners. I am unable to agree with him. True, the petitioners are operators in the PEPSU territories, but then Kharar Sirhind route via Morinda is mentioned at item No. 24 of the schedule attached to the approved scheme pertaining to the PUPSU territories, i.e, the territories of the erstwhile State of Patiala and East Punjab States Union, which now form part of the State of Punjab. The distance between Bassi and Morinda is covered by the said Kharar Sirhind route via Morinda. Therefore, there was no bar for the Commissioner to allow the extension of the route to the petitioners, because the extension, covering distance between Bassi and Sirhind, forms part of Kharar-Sirhind via Morinda route, for which the permit could be granted by him to an operator of PEPSU territories. So, finding no force in the aforesaid contention of the learned counsel for the respondent. I overrule the same.
17. Shri Laxmi Grover, relying on unreported judgment in Janta Co-operative Transport Society, Patiala v. The State of Punjab . C.W No. 2103 of 1964. decided on 25th February, 1965 and Victory Public Hill Motor Transport Co. (Pvt.) Ltd., Hoshiarpur v. Kartar Bus Service Ltd. Jullundur . A.I.R 1971 P. & H. 491., argued that the respondent could not resist the applications made by the petitioners for extension of the route because he had failed to make any representation, as required by sub-section (3) of section 57. Continuing his argument, he maintained that for that reason, the respondent could not carry appeal to the Tribunal and could not be heard in this writ petition. In reply to this argument. Shri N.K Sodhi, relying on M. Ramayya v. State of Madras . A.I.R 1952 Mad. 300., and M. Krishna Muniswamy Pillai v. State of Mysore . A.I.R 1960 Mys. 11., urged that even if the respondent had made no representation to the Commissioner, he had a right of hearing and he did raise the objections against the grant of extension of route on February 11, 1974, before the Commissioner. Relying on Jairamdas v. Regional Transport . A.I.R 1957 Raj 312., and Heeralal v. The State of Rajasthan . A.I.R 1959 Raj 41., he maintained that the respondent had a right to appeal under clause (b), if not under clause (f), of section 64 of the Act, as he was aggrieved by the grant of extension of route, which was variation of the condition of the permits of the petitioners.
18. The language of sub-section (4) of section 57 admits of no ambiguity that the representation in connection with an application, referred to in Sub-section (3), should be in writing and must be made before the appointed date. In view of the said provision, I find it difficult to agree with Shri N.K Sodhi that the respondent could raise oral objections when it (the respondent) failed to make representation in writing as required by sub-section (3) of section 57 before the Commissioner on careful consideration of the law and judgments cited before me, I find that a person, who has failed to submit a representation in writing within the time, is precluded from being heard at any stage of the proceedings, i.e, original, appellate or even revisional. I am supported in this view by the judgments in Junta Co-operative Transport Society's case and Victory Public Hill Motor Transport's case (supra), as well as by P. Swarajyalakshmi v. State of Andhra Pradesh . A.I.R 1959 A.P 321., and Sri Raja Raieswari Bus Service Virdhachalam v. The Regional Transport Authority . A.I.R 1969 Mad. 458.. The judgment in Janta Co-operative Transport Society's case has gone further and it has been observed therein that such a person is not even entitled to challenge the orders of the Appellate Authority in writ petition. Therefore, I find that the submission made by the learned counsel for the petitioners is weighty and there is no force in the contention of the learned counsel for the respondent. Since the respondent did not make representation in writing within the appointed time, he was precluded from raising any objection against the applications made by the petitioners for extension of the route before the Commissioner, and had no right to file appeal against the order of the Commissioner dated February 11, 1974, to the Tribunal
19. The applications moved by the petitioners were for varying condition of the permits held by them so as to extend Patiala Bassi route up to Morinda and the said applications were not for grant of a new permit. As discussed in para 7 above, section 57(8) only provides that the procedure applicable to the said applications and an application for the grant of a new permit would be alike, but it did not have the effect of converting the said applications into applications for the grant of new permit. Since the said applications were not for the grant of new permit and the respondent had not made representation as required by section 57(4), it (the respondent) had no right to appeal under clause (f) of sub-section (1) of section 64. No doubt, the Rajas than High Court has taken the view in Jairamdas's case (supra) and Heeralal's case (supra) that a person other than the permit holder can prefer an appeal under clause (b) of section 64(1) against an order varying conditions of the permit of another person, but the said authorities one or the other or the both were dissented from in Ram Swamp v. State Transport Appellate Tribunal, U.P . A.I.R 1970 All. 182., A. Janardhana Rao v. Deputy Transport Commissioner, Kakinanda . A.I.R 1965 A.P 115., Jasram v. State Transport Authority, M.P Gwalior . A.I.R 1961 M.P 81., Nanalul Thana Ram v. Ghani Khan Monaf Khan . A.I.R 161 Pat. 313., and V.G.K Bus Service Ltd. v. Kerala State Transport Appellate Tribunal . A.I.R 1960 Kar. 18.. It has been observed in the said authorities that the language of section 64(1), clause (b), must be read in the context of the language of clause (a) of that sub-section, and when these clauses are read together, it is clear that the expression “the permit” in clause (b) refer to the permit mentioned in clause (a) and that permit is the permit granted to any person by the Regional Transport Authority. Therefore, the proper construction of the provision of section 64(1), clause (b), is to confine its application to the persons aggrieved by the revocation or suspension of the permits granted to them or to persons aggrieved by any variations in the conditions of such permits granted to them. As such, section 64(1), clause (b), does not confer a right on a third party to appeal against an order varying conditions of the permit granted to another person. Having read all these judgments. I find myself unable to agree with the view taken by the Rajasthan High Court, and I respectfully consider that the view of the other High Courts in the decisions, referred to above, is the correct view on the interpretation of clause (b) of section 64(1). Therefore, I, disagreeing with Shri Sodhi, would find that the respondent had no right even under clause (b) of section 64(1) of the Act to file appeal against the order of the Commissioner dated February 11, 1974. It thus, follows from the discussion above that the impugned order is bad in law because it had been passed on appeal which was incompetent as the respondent had no right to prefer it and also for the reasons stated in para 6 above, it (the impugned order) is erroneous on the face of it. So, it has to be struck down. But it must be made clear that striking of the impugned order will not grant validity to the order dated February 11, 1974 of the Commissioner, which, as discussed in para 10 above, is bad being without jurisdiction since the same had been passed in contravention of the mandatory provisions of section 57(3) of the Act.
20. Consequently, I allow this writ petition and quash the impugned order. The Commissioner will, however, be at liberty to consider the applications moved by the petitioners for extension of route afresh after publishing the date of hearing, which shall not be less than 30 days from the date of publication. Having regard to the peculiar circumstances of the case, I leave the parties to be are their own costs.
21. Petition allowed.
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