Ganga Motor Service vs The Under Secretary to the Government of Bihar and Others

Hari Lal Agrawal, J.—This is an application for issue of an appropriate writ in respect of an order passed by the State Transport Appellate Authority, Bihar, Patna, (Opposite Party No. 2) dated 6-3-69, a copy of which is Annexure ''4'' to the writ application, passed in Appeal case No. A3-202/69, under the Motor Vehicles Act (hereinafter to be referred to as the ''Act'') by which it has held that the petitioner was not competent to file an appeal before it and also the order of the State Government in the department of Transport dated 9th August, 1969, passed on the representation of the petitioner u/s 64-A (Bihar Amendment) of the Act, a copy of which is Annexure ''6'' to the writ application.

The facts relevant for the purpose of the present application are these. Smt. Sandhya Tara Mukherjee (Opposite Party No. 4) was granted a permanent Stage Carriage Permit No. 128/57-60 with respect to Deoghar-Sangrampur route via Sahebganj but after the expiry of the term of the said permit, opposite party No. 4 made an application for its renewal before the East Bihar Regional Transport Authority, Bhagalpur (opposite party No. 3), which was published in the Bihar Gazette dated the 28th August, 1968, inviting the representation, if any, in respect of the said renewal in pursuance of Section 57(3) of the Act.

The petitioner is also a permit holder and is providing passenger transport facilities on different routes in the State of Bihar including a route in the district of Dumka, namely, Dumka-Rampur Hat. It is not necessary to state the grounds on which the renewal of the application of opposite party No. 4 was opposed by the petitioner for disposing of the question raised by him, in this Court. A true copy of the representation filed by the petitioner is Annexure ''2'' to the writ application.

Opposite party No. 3 by its order dated 8/9th December, 1968, rejected the representation of the petitioner and granted the renewal of the permit in question to opposite party No. 4, a copy of the order is Annexure ''3'' to the writ application. Against this order of opposite party No. 3, the petitioner filed an appeal before the Appellate Authority, namely, opposite party No. 2 u/s 64(f), of the Act, but the appellate authority by its order dated 6-3-1969 rejected the appeal inter alia on the ground that the petitioner was not competent to file the appeal itself, a true copy of which order is Annexure ''4'' to the writ application. As already stated above, the representation of the petitioner to the State Government also failed. The petitioner, therefore, has moved this Court by the present application and has prayed that the said order passed by the Regional Transport Authority rejecting the representation and granting the renewal of the permit of opposite party No. 4, of the Appellate Authority and that of the State Government, namely, An-nexures ''3'', ''4'' and ''6'' be quashed.

Mr. Amla Kant Choudhary, learned counsel for the petitioner has challenged the order of the Appellate Authority, namely, opposite party No. 2 which held that the petitioner was not competent to file the appeal u/s 64(f) of the Act, as erroneous and misconceived. The Appellate Authority found that the petitioner did not satisfy the condition of the said clause as he was not a person providing passenger transport facilities by any means along or near the proposed route or area within the meaning of Clause (f) of Section 64 of the Act, Clause (f) of Section 64 reads as follows:

"Any person-

(f) being a local authority or police authority or an association which, or a person providing transport facilities who, having opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto, or"

Mr. Choudhary contended that the only requirement of a person competent to file an appeal before the Appellate Authority was that he should be a person providing transport facilities and secondly, that he should have opposed the grant of the permit before the Regional Transport Authority u/s 57 of the Act and that the transport facilities being provided, need not be along or near the proposed route or area which qualification was not contemplated within Clause (f) of Section 64 itself and, therefore, the petitioner, according to the decision of the Appellate Authority itself, being a person providing the transport facility was competent to maintain the appeal, as the second condition was fulfilled by the petitioner, namely, of opposing the grant of the permit to opposite party No. 4.

In order to appreciate the contentions raised on behalf of the petitioner, it is necessary to refer certain other relevant provisions of the Act. Section 47 prescribes the procedure for consideration of an application for stage carriage permit by a Regional Transport Authority and after laying down the various factors for consideration, enumerated in different clauses it has been further provided "and shall also take into consideration any representations made by persons providing passenger transport facilities by any means along or near the proposed route or area.". From the aforesaid provision, it is manifest that the making of a representation is contemplated by only such persons who should not only be providing passenger transport facilities by any means at any place but such transport facilities must be provided by the person contemplated to be competent to make a representation along or near the proposed route or area. It must be stated at once that the petitioner has not challenged before us the finding of the opposite party No. 3 that he was not a person providing transport facilities along or near the proposed route or area of opposite party No. 4 for which the renewal application of opposite party No. 4 was made and the only contention raised before us was that the provision of Clause (f) of Section 64 of the Act was an independent provision by itself and was not controlled by the aforesaid provision of Section 47 of the Act. This argument is fallacious on the face of it. What is contended by the learned counsel is that although the petitioner might not be a person competent to make any representation before opposite party No. 3 to the grant of the renewal of the permit in question to opposite party No. 4, he must be deemed to be a person competent to file an appeal before the Appellate Authority u/s 64(f) of the Act. It is well settled that the right of appeal by a person must be based on some infringement of his right at the original stage by an adverse order against him, i.e., a person must first have a right to vindicate his grievance before a court of first instance and then and then only if a remedy by appeal is provided for, against the ad-verse order, he has got a right of appeal.

Tn order to support the contention, learned counsel has cited a large number of authorities which now I propose to deal. Reliance was placed upon a Bench decision of this Court in the case of Mahabir Motor Co. v. Bihar State, ATR 1956 Pat 437. The petitioner in that case originally had a permit for one bus for Bhagalpur-Deoghar route. When the renewal application was advertised one Rameshwar Prasad filed an objection to the renewal but the permit was ultimately renewed. An appeal was taken by Rameshwar Prasad to the Appellate Authority, which was allowed and the order of renewal of the permit was rescinded. The matter ultimately came to this Court and one of the questions raised was that Rameshwar Prasad had no locus standi to make any representation or objection u/s 47 of the Act because he was not a person already providing road transport facilities along or near the proposed route or area although the question in the form as raised before us was not raised in that case but it appears that the learned Judges while deciding the said case apart from the fact that Rameshwar Prasad was satisfying both the conditions of Clause (f) of Section 64 of the Act, namely, (1) a person having opposed the grant of a permit, and (2) providing transport facilities, also proceeded to consider as to whether he was providing such facilities along or near the proposed route or routes and on a consideration of the affidavits, re-corded a finding that he was a person providing such facilities and, therefore, was competent to make an objection u/s 47 and then they came to the conclusion that if Rameshwar Prasad had the right to make an objection, he had also a right to prefer an appeal against an order of the Regional Transport Authority. This observation, therefore, instead of supporting the contention raised by the petitioner goes against him.

The next case relied upon by the petitioner is an unreported decision of this Court, namely, C. W. J. C. No. 1147 of 1968 disposed of on 1st July, 1969, (Abhimanyu Prasad v. State Transport Authority, Bihar, Patna). The petitioner of this case was holding a permit for Ranchi-Simdega-Birmitra-pur, an inter-State (Bihar-Orissa) route. The respondent, the State Transport Authority raised an objection but, the objection was overruled. This permit was thereafter renewed in spite of objection of the Corporation from time to time and the Corporation filed an appeal against the said order. The Appellate Authority having allowed the appeal, the petitioner Abhimanyu Prasad came to this Court and filed the aforesaid writ application and a question was raised as to whether the Corporation had a right to file an appeal u/s 64(f) of the Act. On a consideration of the expressions, "grant of a permit" and "aggrieved by grant thereof" occurring in Clause (f) "aggrieved by the refusal ..... to grant a permit'''' in Clause (a) and "aggrieved by the refusal of renewal of a permit" in Clause (e) of Section 64, it was held that Clause (f) conferred a right of appeal of granting a permit in the first instance or of granting a permit by way of renewal thereof. It was further observed "It may be that u/s 57(3) of the Act, various persons apart from the kinds mentioned in Clause (f) of Section 64 have been given right to make representation or objection to the grant of a permit or with renewal. The Legislature did not think it right and proper to confer a right of appeal on all kinds of objectors but did confer it only on those as specified in Clause ff) because they and they alone would be the type of objectors who may be primarily and vitally aggrieved and affected by grant of a permit or its renewal." It is manifest from the above quoted observations that right of appeal is conferred by Clause ff) of Section 64 only on some of those who could be objectors u/s 57 and who would be primarily and vitally aggrieved and affected by grant of a permit or its renewal and that, no right of appeal has been conferred on those whose objections or representations need not be considered u/s 47(1) of the Act. Really Section 47 enumerates those who are likely to be primarily and vitally interested in the matter of grant or renewal of a permit and lays down that their repre-sentation must be taken into consideration. Of course if one claims to be a type of persons mentioned in Section 47 of the Act but the authority finds that he is not so, he may appeal for setting aside that finding, but if on his own case he is not such a person, Section 64(f) cannot be construed to confer the right of appeal on him. If the contention of the learned counsel for the petitioner in this regard be accepted, then even a person providing transport facility in Kerala could oppose the grant of a permit for a route in Bihar and then prefer an appeal. It is apparent from the facts of Abhimanyu Prasad''s case that there the objector was the State Transport Authority and not an individual operator for whom alone the condition of providing transport facilities is applicable. In that case, therefore, there was no discussion of the question at all, that is, falling for consideration in the instant case.

Reliance was next placed on the case of Ram Gopal Vs. Anant Prasad and Another, . In this case, the respondent Anant Prasad had made a representation against the renewal of the permit in favour of Ram Gopal and rather claimed the grant of the permit to himself. His objection having been rejected, he preferred an appeal where he succeeded. Then Ram Gopal filed a writ application before the Judicial Commissioner, Vindhya Pradesh and having failed there, the matter ultimately came to the Supreme Court. One of the questions raised was, whether the respondent who had filed an objection to the renewal was a person who could claim a right of appeal under Clause (f) of Section 64 of the Act. The Supreme Court held that Anant Prasad had a right of appeal under Clause (a) of Section 64 of the Act itself inasmuch as the order of the Transport Authority by necessary implication was tantamount to the renewal to the grant of permit to him and he was not a type of an objector as specified in Clause (f) of Section 64 of the Act. Hence, the question as to whether Anant Prasad had a right of appeal under Clause (f) did not specifically fall for consideration or decision in this case either. It was, however, contended in this case that Section 64 of the Act did not provide for an appeal by a person aggrieved by the renewal of a permit unless he was one of those mentioned in Section 64(f) of the Act and inasmuch as Anant Prasad was not such a person, in an appeal u/s 64(a) of the Act, the Appellate Tribunal could not set aside the order of renewal. This argument was not accepted and it was held that the different clauses in the Section 64 of the Act deal with different situations each being independent of the other, and if an appeal lay under any of the other clause, that of course must be an effective appeal and the Appellate Authority must, therefore, have all powers to give the relief to which the appellant is found entitled. Mr. Choudhary relying upon this observation in the judgment wanted us to hold that Section 64(f) of the Act was an independent provision by itself and in determining the right of the petitioner to file an appeal, reference to the provision of Section 47 of the Act cannot be made. This conclusion or inference is not at all supported from this authority and the submission must be rejected. As already stated, the question arising for consideration in the case of Ram Gopal Vs. Anant Prasad and Another, was entirely different and the observation of the learned Judges regarding the independence of the respective clauses of Section 64 cannot be taken to support the contention raised on behalf of the petitioner that other provisions of the Act cannot be referred to determine the ambit of the said clauses.

Reliance was also placed upon a decision in the case of Nadar Transports v. Madras State, AIR 1953 Mad . In this case the appellant and the third respondent were competitors for permit on two routes and the order granting permits to the appellant was the subject-matter of an appeal by the third respondent. On an appeal by the third respondent to the Appellate Authority, the order of the Regional Transport Authority was modified and then the matter came to the High Court. A question was raised that the respondent had no right of appeal against the order of the Regional Transport Authority as he had made no representation before it objecting to the grant of a permit to the appellant. Therefore, in this case the right of appeal by the third respondent was challenged not on the ground of providing transport facilities but on the next ground that he had not opposed the grant of a permit. It was held that while applying for the grant of a permit for himself he had also objected to the grant of a permit to the other. In such a case if the permit is refused to him, he would fulfil the conditions of both of the Clauses (a) and (f) and in this view of the matter, it was held that the appeal by the third respondent was competent. This authority also has got no bearing on the question raised and, therefore, does not help in any way the petitioner.

Reliance was next placed upon a Full Bench decision of the Punjab High Court in the case of Fatehgarh Sahib Bus Service (Pvt.) Ltd. Vs. State Transport Commissioner, Punjab and Others, . The facts as stated in the judgment of this case itself shows that route of the temporary permits of respondents 2 and 3 overlapped by about 9 miles, the route with the appellant Company and, therefore, the appellant was factually satisfying the requirement of the provisions of Section 47 of the Act already and the only question that fell for consideration in that case was whether under Clause (f) of Section 64 of the Act, a person who has the right to oppose the grant of a temporary permit but has not had an opportunity to do so because of no notice of the proceedings for the grant of the same, can be said to be a person having opposed the grant of a permit and, therefore, entitled to a right of appeal. Answering this question with reference to Clause (f) of Section 64 of the Act, it was held by the Full Bench that such a person had no right of appeal as the expression of having opposed the grant of a permit'' is a pre-requisite condition which must be fulfilled in the absence of which, there is no right of appeal. The facts of this case are, therefore, quite different and has got no application much less any assistance to the point for consideration.

Then remains one more decision relied upon by the learned counsel for the petitioner, namely, in the case of Bhanwarlal Vs. The Appellate Tribunal of the State Transport Authority and Others, a case referred to in the case of the Full Bench decision of the Punjab High Court ATR 1970 P&H18 (supra). The principal question falling for decision in the Rajasthan case was as to whether the order of the grant of a temporary permit could be appealed against and the answer was given in the affirmative. In this case on the use of the expression ''permit'' which according to the definition did not make any distinction between a regular permit and a temporary permit, it was held that inasmuch as Clause (f) of Section 64 of the Act gave the right to a person, etc. who had opposed the grant of a permit, there was no valid reason to hold that Clause (f) did not apply to the cases of the grant of a temporary permit. There are authorities of this Court also taking a similar view. Reliance was placed, however, on an abstract observation in this decision that nothing should be read in Clause (f) which was not there, but this observation must be deemed to have been made in context of the entire discussion and it is apparent that the learned Judges had made reference to a large number of the provisions of the Act in deciding the case. None of the cases cited on behalf of the petitioner as discussed, therefore, lends support to the proposition urged by his learned counsel and as rightly contended by the learned Standing Counsel that the position of the petitioner was very much similar to that of an impertinent intervener as was the situation in the case of Chandrika Bakhsh Singh v. Indar Bikram Singh AIR 1916 PC 14, that is, the petitioner had no right of filing an objection to the grant of the renewal of the permit to opposite party No. 4, and as such did not satisfy this condition for maintaining the appeal. In my judgment the provisions of Section 64(f) of the Act has got o be read along with the other provisions of the Act and the expression occurring therein ''a person providing transport facilities'' must be read in the context of the person mentioned in Section 47 of the Act as ''providing passenger transport facilities by any means along or near the proposed route or area''. Therefore, the petitioner was not entitled to prefer an appeal and the order passed by the said Appellate Authority (Annexure ''4'') is perfectly legal and valid and must be upheld. This view finds support from the decision of this Court in Mahabir Motor Co. Vs. State of Bihar and Others, . Once this position is accepted, the subsequent order namely, Annexure ''6'' passed by the State Government also cannot be assailed.

Before parting with the judgment, I may also like to observe that by the order of the Regional Transport Authority, Annexure ''3'', dated the 4th of January, 1969, the renewal of the permit of opposite party No. 4 was granted for a period of three years only, which has apparently expired on the 4th of January, 1972, and the petitioner had moved the Appellate Authority only against the order renewing the permit which has spent its life.

For the reasons stated above, this application fails and is, accordingly, dismissed but as there is no appearance on behalf of opposite party No. 4, there shall be no order as to costs.

Shambhu Prasad Singh, J.

I agree.