SEN J.

(1.) By this application under Article 226 of the Constitution the petitioner, Madan Mohan, applies for a writ for quashing an order of the State Transport Appellate Tribunal, dated 4th January, 1973, setting aside in appeal the order of the Regional Transport Authority, Indore, dated 19th February, 1972 by which the petitioner was granted a stage carriage permit on route Badwani-Alirajpur via Nisarpur, Dharamrai, Dahi, Sondhwa and Umrali, and granting instead the same to the respondent No. 3, M/s R. M. Brothers.

(2.) The facts, in brief, are as follows. The Regional Transport Authority, Indore-hereinafter referred to as the Regional Transport Authority-by order dated 7th/8th May, 1968 lifted the ceiling over 142 routes in the Indore region under section 47 (3) of the Motor Vehicles Act, 1939-hereinafter referred to as the Act-and decided to invite applications for grant of permits in respect of the same. On 24th May, 1968, the Regional Transport Authority accordingly issued a notification under sections 47 (3) and 57 (2) of the Act. The said notification covered routes and areas failing within Schemes Nos. 16, 36, 47 and 53 which were approved under Chapter IV- A of the Act, and also covered other routes which did not fall within any of the approved schemes. One of the routes notified was the route Badwani-Alirajpur which had not been included in any approved scheme, and it was notified therein that there would be an increase in the number of vehicles plying on the route by one. In response to the same, the petitioner made an application for grant of a permit on 13th June, 1968. The notification issued by the Regional Transport Authority was, however, struck down by this Court in The Madhya Pradesh State Road Transport Corporation v. The Regional Transport Authority, Indore (1969 M P L J 145.) on the ground that the Regional Transport Authority had no jurisdiction to lift the ceiling in respect of an area or a route falling within a notified scheme, as no action could be taken in derogation of the scheme. Since the notification issued by the Regional Transport Authority affected routes which had fallen within approved scheme, this Court held that the notification as made could not stand and had to be quashed. It was, however, directed that it would be open to the Regional Transport Authority to issue a fresh notification restricting its operation to the areas and routes not falling within any approved scheme.

(3.) Pursuant thereto, the Regional Transport Authority issued an order to the following effect:

"Notification No. 2976 was published in M. P. Rajpatra dated 24-5-1968 under the orders of this authority passed on 7-5-1968 and 8-5-1988 for grant of stage carriage permits on 142 routes listed therein. This notification was challenged by the Madhya Pradesh State Road Transport Corporation in the M. P. High Court. Hon'ble High Court by their order dated 27-11-1968 passed in Misc. Petition No. 352 of 1968 has quashed this notification on the ground that the notification affects areas and routes which fall within the approved Schemes. However, a direction has been given in the said order that it would be open to the Regional Transport Authority to issue a fresh notification restricting its operation to the areas and routes not falling within any approved Scheme. In my opinion, it has become necessary to raise the ceiling imposed on regional routes of Indore region under the orders of this authority dated 23-10-1963 in the interest of public convenience. A fresh notification has, therefore, become necessary. Consequently, this ceiling is raised to the extent noted in the enclosed list. Notification is, therefore, issued for raising the ceiling and for inviting applications for the routes mentioned in the enclosed list. Applications received prior to the date of notification number 2976 published in M. P. Rajpatra dated 24-5-1968 are summarily rejected under proviso to the section 57 (3) of the Motor Vehicles Act. Only those applications will be considered which are received in pursuance of the notification as well as in pursuance of Notification No. 2976 mentioned above."

The Regional Transport Authority accordingly issued a fresh notification under sections 47 (3) and 57 (2) of the Act on 24th January, 1969 confining the lifting of the ceiling over 88 routes which were not covered by any of the approved schemes. One of the routes re-notified was the route in question. The notification so far as it is relevant, runs : The application filed by the petitioner in pursuance of the notification dated 24th May, 1968 as also that of the respondent No. 3 made under the notification dated 24th January, 1969 were duly published by the Regional Transport Authority as required under section 57 (3) of the Act inviting representations, if any. The respondent did not make any representation under section 57 (3) that the application made by the petitioner was not validly subsisting and, therefore, could not be considered at all. All the applications, including those of the petitioner and the respondent No. 3, came up for consideration before the Regional Transport Authority on the 7th February, 1969. At the meeting, it was discovered that the routes specified in the notification dated 24th January, 1969 were lacking in particulars and, therefore, the routes had to be re-notified by specifying the intermediate stations. The Regional Transport Authority accordingly issued another notification dated 10th July, 1970, which was clarificatory in nature. The notification, in terms, gave an option to the applicants either to amend their applications already made by specifying the intermediate stations in respect of the route or routes for which they had applied or make fresh applications. In response to the notification, the petitioner amended his application by specifying the intermediate stations on the route in question. The application so amended by the petitioner as also the amended applications or applications afresh received from other operators, including that of the respondent No. 3, were re-published in M. P. Rajpatra under section 57 (3) dated 13th November, 1970 inviting representations. The respondent No. 3 again did not file any representation against the grant of a permit to the petitioner on his application. All the applications were considered by the Regional Transport Authority and applicants as well as the objectors were heard. The Regional Transport Authority by its order dated 19th February, 1972 found that the petitioner was superior than all the other applicants for the grant of a permit and accordingly rejecting the applications of all, including that of the respondent No. 3, granted the permit for the route in question to the petitioner. Against the order of the Regional Transport Authority, the respondent No. 3 filed an appeal before the State Transport Appellate Authority-hereinafter referred to as the STAT.

(4.) At the hearing of the appeal, the respondent No. 3 raised for the first time an entirely new point. Taking cue from a recent decision of this Court in Motor Mazdoor Yatayat M / P Co-operative Society Ltd, Khandwa v. State Transport Appellate Tribunal and others (M. P. No. 524 of 1972, decided on the 29th September 1972.) it was urged that the notification dated 24th May, 1968 having been quashed by this Court in The M. P. State Road Transport Corporation v. The Regional Transport Authority, Indore (supra), the application made by the petitioner dated 13th June, 1968, in response to that notification lapsed and, therefore, it was necessary for him to File an application afresh pursuant to the notification dated 24th January, 1969. As he failed to do so, it was urged, his application could not be said to be subsisting at the time of the hearing before the Regional Transport Authority and, therefore, the grant of the permit in his favour was illegal. The petitioner opposed to the said point being raised as the same was not taken in the memo of appeal, and it involved questions of fact and reference to various orders of the Regional Transport Authority which were not before the STAT. Incidentally, the respondent No. 3 had also not raised any such objection against the entertainment of the application by making a representation under section 57 (3). The STAT, however, overruled the petitioner's objection and allowed the point to be taken, and eventually by the order impugned upheld the contention of the respondent No. 3. It came to the conclusion that the application filed by the petitioner on 13th June, 1968, "lapsed" with the quashing of the notification dated 24th May, 1968 and, therefore, the said application could not be legally considered for any grant and consequently, the grant of the permit to the petitioner by the Regional Transport Authority was patently illegal. The STAT in reaching that conclusion has relied on the decision of this Court in Motor Mazdoor Yatayat Co-operative Society Ltd., Khandwa v. State Transport Appellate Tribunal (supra). The petitioner assails the correctness of the view taken by the STAT.

(5.) The short question for consideration is whether the application dated 13th June, 1968 filed by the petitioner for the grant of a stage carriage permit on the route in question "lapsed" with the quashing of the notification dated 24 May, 1968 issued by the R T A. The view taken by the STAT to that effect ran hardly be supported. It proceeds on a complete misunderstanding of the decision in The M. P. State Road Transport Corporation v. The Regional Transport Authority, More (supra). There is a distinction between an order under section 47 (3) and a notification under section 57 (2) of the Act. An order under section 47 (3) need not be notified. The notification was issued only because a public notice had to be given by the R T A that it had lifted the ceiling over the routes specified therein inviting applications for grant of permits in respect thereof. What was struck down by this Court was the notification under section 57 (2), and not the order under 47 (3) in so far as it was valid. A scheme made under Chapter IV- A of the Act has the force of law. Further, as a scheme is finally made by an order of the State Government approving it, it is also an "order" within the meaning of that word as it occurs in section 68-B and in terms of that section has effect notwithstanding anything inconsistent therewith contained in Chapter IV of the Act. An approved scheme has thus the effect of overriding the powers of the R T A under Chapter IV in so far as those powers may be inconsistent with the scheme. Consequently, the Court held that it was not open to the R T A to have invited applications for permits or to have fixed any ceiling limit in respect of areas and routes and falling within the approved schemes, which were to be operated by the State Road Transport Corporation, and since the notification issued by the R T A affected such areas and routes which fell within the approved schemes, it could not stand and had to be quashed. While quashing the notification, the Court further observed that it would be open to the R T A to issue a fresh notification restricting its operation to the areas and routes not falling within any approved scheme. The order under section 47 (3) was perfectly valid so far as it lifted the ceiling over routes not covered by any of the approved schemes. Admittedly, the route in question was not so covered and, therefore, the ceiling had been lifted, and there was additional scope for increasing the stage carriages by one. Thus, the application made by the petitioner for grant of a permit was valid and still subsisting.

(6.) Even if there was no notification under section 57 (2) inviting applications for the grant of a permit, and there was a ceiling in respect of the route under section 47 (3), the application filed by the petitioner would still, in law, be valid and proper. For the making of an application for grant of a stage carriage permit under section 46, there need not be any antecedent notification under section 57 (2). In other words, the issue of a notification under section 57 (2) is not a condition precedent to the making of an application for grant. An operator can make an application on his own initiative under the 1st part of section 57. In such an event, it would be incumbent on the R T A to follow the procedure prescribed by section 57 (3). While section 57 (3) provides for publication of such applications for the grant of permit and inviting of representations in respect of such applications, the proviso to that sub-section authorises the R T A to reject even summarily the applications without following the procedure laid down in the sub-section, if the grant of permit in accordance therewith would go beyond the limits fixed under section 47 (3), that is, if a limit has been fixed under section 47 (3) and that limit would be exceeded with the grant of permit, the R T A may in limine dismiss the application for permit.

(7.) The scheme of the Act has been interpreted by the Supreme Court more than once. In Abdul Mateen v. Ram Kailash Pandey and others(AIR 2963 S C 64.) their Lordships held that section 47 (3) was concerned with a "general order" limiting stage carriages on a consideration of matters specified in section 47, and that such an order can be modified by the R T A if he. so decides one way or the other. While dealing with the power of the R T A to grant a permit in excess of the number fixed under section 47 (3), their Lordships observed :

"There is a fallacy in our opinion in this argument. It is true that the Regional Transport Authority has the power to revise the limit fixed by it under section 47 (3) but that power to revise the limit in our opinion is not under section 48, when it is dealing with the question of grant or refusal of permits to individuals. Section 48 is always subject to the provisions of section 47 and therefore must be subject to the limits which may be fixed under section 47 (3). The power to revise the limits under section 47 (3) in the Regional Transport Authority must not be confused with the powers which it has when it is dealing with the grant or refusal of permits under section 48. Therefore, though it is true that the Regional Transport Authority can revise the general order passed by it under section 47 (3), that revision is a separate power in the authority and not a power arising when it is dealing with individual permits..........."

Earlier in that case, their Lordships had stated :

"Section 57 (2) shows that an application for permit may be made at any time 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. All applications, whether received one way or the other, have to be dealt with in the manner provided by section 57 and the final order for grant of stage carriage permit bas to be passed under section 48. But, at that stage, as we have already pointed out, the Regional Transport Authority is only considering whether the applications made before it are to be granted or not has to choose between various applicants where there ere more applicants than the number of vacancies which might have been advertised or there are more applicants than the number limited under section 47 (3). The scheme of the Act therefore is that a limit is fixed under section 47 (3) and the applications received are dealt with in the manner provided by section 57 and permits can be granted under section 48 subject to the limit fixed under section 47 (3)"

In Jawaram Motor Service v. Rajaratnam((1967) S C W R 857) their Lordships described the scheme of section 47 of the Act thus :

"The scheme of section 47 is that when a person makes an application under sections 45 and 46 the authority first considers it under section 47 (1) in the light of the matters set out therein and also the representations, if any, made by the persons mentioned therein. The authority then fixes under section 47 (3), having regard to the matters mentioned in section 47 (1), the number of stage carriages for which permits may be granted in the region or en any specified route within such region. Having fixed the limit, the authority publishes under section 57 (3) the application with a notice of the date before which representations in connection therewith may be submitted and the date on which such application and representations would be considered. The proviso to section 57 (3) lays down that if the grant of a permit has the effect of increasing the number of vehicles operating in that region or in any specified area thereof or on the route within such region beyond the limit fixed under section 47 (3), the authority may dismiss the application summarily. If it does not exceed such limit and the authority decides to grant a permit it has to consider the application and the representations submitted to it in conformity with the procedure laid down in section 57. Therefore, section 47 envisages two stages of the enquiry: (1) the fixing of the number of permits under section 47 (3) and (ii) the consideration thereafter of the application for grant of a permit and the representations if any, by the persons mentioned in section 47(1). It would, therefore, be seen that once the authority has fixed the number of vehicles to be operated in the region or the area or the particular route and the number of permits to be granted therefor, the stage of enquiry under section 47 (3) is over. The next thing that the authority has to consider is whether grant of a permit would be within such limit or not."

In Obliswamy Naidu v. The Additional State Transport Appellate Tribunal (AIR 1969 S C 1130.) their Lordships stated that sections 47 and 57, when read together, made it clear that the R T A had first to arrive at a decision whether there was a necessity for the grant of a permit on the new route, and then decide under section 48 whether the applicant should be granted a permit or not. That decision clearly shows that it makes no difference between cases where applications are invited by the R T A after having come to the conclusion as to the necessity of a new route, or where an applicant himself proposes a new route and applies for a permit. In both these cases, the R T A has to decide, before reaching the stage of section 48 when it considers individual applications as to whom amongst the applicants the permit should be granted, whether the new route is necessary in the interest of the public. In Jeewan Nath Wahel and others v. Sheikh Mahfooz and others (AIR 1970 S C 1704.) their Lordships stated that the R T A has first to make a "general order" as stated in Abdul Mateen's case (supra) under section 47 as to the number of permit necessary for a new route and it cannot exceed that limit while it is at the next stage when it considers under section 48, read with section 47, as to whom amongst the applicants should be granted the permit or permits. To the same effect is the decision of their Lordships in Mohd. Ibrahim, Etc. v. State Transport Appellate Tribunal, Madras, Etc. 1542.) These authorities clearly lay down that section 47 envisages two stages of enquiry (i) fixation of number of permits under section 47 (3) and (ii) consideration thereafter of the applications for the grant of permit and representations, if any, by persons mentioned in section 57 (3).

(8.) In 5. Satyanarayana Singh v. The Regional Transport Authority (A I R 1963 Mys. 135.) a notification having been issued under section 57 (2) inviting applications for grant of permits, an application was filed by an operator under section 46. Later, that notification was cancelled and a fresh notification under section 57 (2) was issued to the same effect. It was held that the Regional Transport Authority was bound to publish the application under section 57 (3), even though it was received before the issue of the second notification. While dealing with the duty of the Regional Transport Authority under section 57 (3), the Mysore High Court observed :

.........It is clear from the scheme of the Motor Vehicles Act that a person who wants a permit to be granted to him under its provisions may make an application under section 46 of the Act for that purpose. Section 57 (3) of the Act directs that when an application is so presented, that application shall be published in the manner specified in that sub-section. It is not necessary, in order to enable a person to present an application under section 46, that there should be a notification by the Regional Transport Authority calling for it. It is open to a person to make an application under Section 46 even though there be no antecedent notification by the Regional Transport Authority calling, for such application."

"......... But the fact that the application was presented without invitation by the Regional Transport Authority cannot absolve the Regional Transport Authority from its statutory duty to publish that application under section 57 (3) of the Motor Vehicles Act. That being the requirement of Section 57 (3) of the Act, it is obvious that the Regional Transport Authority did not have the power to return the application presented by the petitioner, even on the ground that the application presented by the petitioner was in response to a notification calling for applications which had since been cancelled by the Regional Transport Authority."

"Even if the first notification calling for applications was cancelled by the Regional Transport Authority, the application presented by the petitioner which was one validly presented under Section 46, was still one which the Regional Transport Authority was under a duty to publish under section 57 (3) of the Motor Vehicles Act."

(9.) There is but little doubt that the decision in Motor Mazdoor Yatayat Co-operative Society Ltd., Khandwa v. State Transport Appellate Tribunal (supra) proceeds on wrong previses, and it was apparently given per in curiam, and cannot, therefore, be followed. The attention of the Court was not drawn to the order of the Regional Transport Authority quoted by us in para 3 above, as also to the exact terms of the notification dated 24th January, 1969. The Court also overlooked the proviso to section 57 (3) of the Act. The view taken by the Court in that case, renders the proviso wholly nugatory.

(10.) The result, therefore, is :that the petition succeeds and is allowed with costs. The order of the S T A T is set aside, and the appeal is remitted to that authority with a direction that it shall re-hear and decide the same afresh, in accordance with law. Hearing fee Rs. 100/-, if certified. Petition allowed.