Secretary to Government, Department of Transport vs The State Transport Appellate Tribunal and Others

M.S. Liberhan, J.—This judgment will dispose of civil writ petitions No. 4876, 5926 and 6376 of 1992 as these are directed against the same order of the State Transport Appellate Tribunal.

In writ petition No. 4876 of 1992, the only grievance of the State is, that the State Transport Commissioner invited applications for 8 regular permits with 4 trips from Budhlada to Amritsar via Bhatinda and granted 6 regular permits with 3 return trips and the Appellate Tribunal had no jurisdiction to grant two regular and one return trip permits which were not granted by the State Transport Commissioner. The Appellate Authority''s order is without jurisdiction.

Learned counsel for the respondents challenged the locus standi of the State on to impugn the order of the Appellate Authority, there being no adverse order against the State and the State was not an appellant before the State Transport Appellate Tribunal. The order being without jurisdiction was refuted- Mr. Ashu M. Punchhi, learned counsel for one of the respondents contends, that in order to seek the implementation of the impugned order of the Appellate Authority, the respondents sought a writ of mandamus in which the State took an objection, that the order of the Appellate Authority was without jurisdiction, consequently the same could not be implemented. The plea of the State was rejected and the order was held to be within jurisdiction. The order of this Court was further reconfirmed by the Hon''ble the Supreme Court. Finding of the Court were averred to operate as constructive res-judicata. Reference to the finding recorded in Gill Bus Service (regd.) Amritsar v. State of Punjab through the Secretary, Punjab Transport Department Civil Secretariat Chandigarh and Anr. (1992) 101 PLR 678 was made.

We find force in the submission made by the learned counsel for the respondents. There is no gain saying that permits to all other applicants were rejected by the State Transport Commissioner. None of the applicant before the State Transport Commissioner preferred an appeal except the respondents before us. The State was neither an appellant before the State Transport Appellate Tribunal nor was an applicant before the State Transport Commissioner petitioner has failed to point out anything to show that the impugned order adversely affected the interest of the State.

The only submission made by the State Counsel that since the 8th permit was not granted by the State Transport Commissioner, therefore, it should not have been granted by the State Transport Appellate Tribunal. The authority should have remanded it to the State Transport Commissioner, or in the alternative should have taken into consideration the provisions of Section 47 of the Motor Vehicles Act, which highlights consideration of the public interest to be kept in view while granting permits.

Learned counsel for the petitioner relied on (Loke Sewak Bus Service v. State Transport Appellate Tribunal etc., C.W.P. No. 4039 of 1991, decided on 7.5.1991 and (State of Punjab v. Bhagat Kabir Transport Co. etc., ) C.W.P. No. 11088 of 1992 decided on 21.4.93 in order to support his submission.

There is no dispute with the law laid down by the above judgments but the facts in the cases before us are not para materia with the facts in the cases referred to above keeping which in view the observations were made therein. A reading of the said judgments makes it discernible that in these cases State Transport Commissioner had not rejected the claim of the applicants before it with respect to the total number of permits and the State Transport Appellate Tribunal granted the remaining permits, to the appellants before it without considering the claims of all the applicants before the State Transport Commissioner. It was in that situation that it was observed that provisions of Section 47 of the Act have to be kept in view while considering the relevant merits of all the applicants. Herein factually it is not disputed and even otherwise also by reading the order of the State Transport Commissioner, it is obvious that applications of all the applicants were rejected for grant of permits. It is only the respondent who preferred an appeal and challenged the order of State Transport Commissioner to be erroneous qua them for rejecting their claims for grant of permits. The other applicants before the State Transport Commissioner having felt satisfied with the order of the State Transport Commissioner did not challenge his order declining permits to them. It is in these circumstances that the permits were granted to the respondents who were the only applicants before the State Transport Appellate Tribunal. The said view of the Appellate Authority finds support from the judgments reported in M/s. Mohali Bus Service Regd. Jalandhar Vs. State Transport Appellate Tribunal, Chandigarh and others, , Saraswati Co-operative Transport Society Ltd. Vs. Chief Commissioner Delhi State and Others, , The Anamalais Bus Transport (P) Ltd. Pollachi v. Sri Ttruppur Karur Transports (P) Ltd Tiruppur and Ors. AIR 1966 Mad 470 and State of Punjab v. New Akal Land and Finance Pvt. Ltd. and Anr., C.W.P.No. 14400 of 1992 decided on 24.11.1992.

We cannot add to the observations made in the aforesaid judgments in support of the view that where some of the applicants do not agitate the refusal to them of the permits and accepts the finding of the authority, they have no right for reconsideration of their claim in an appeal preferred by some other applicants challenging the illegal or erroneous rejection of his or their claim. We may hasten to add that Appellate Authority in the peculiar facts and circumstances, would not be without jurisdiction to pass appropriate order even in favour of non-applicants once it comes to a conclusion that the order is illegal or liable to be set aside in totality or requires modification i.e. once the order of the State Transport Commissioner is set aside, the Appellate Authority would have all the jurisdiction to pass appropriate order as the State Transport Commissioner could have passed the order keeping in view the provisions of Section 47 and the requirements of ends of justice. No such peculiar facts or circumstances have been pointed in this case.

In view of the observations made above, we are of the considered view that the order of the State Transport Appellate Tribunal being legal, the State has no locus standi to challenge the impugned order, the present writ petition No. 4876 of 1992 is liable to be dismissed.

So far as writ petition No. 4362 of 1992 preferred by the Pepsu Road Transport Corporation, Patiala is concerned, the only grievance made by the learned counsel for- the petitioner is that Raj Tiansport Company (Private) Ltd. Amritsar has been wrongly preferred to the Pepsu Road Transport Corporation and the permit granted by the State Transport Commissioner to P.R.T.C. has been wrongly revoked. It would be expedient to notice that the State Transport Commissioner granted a permit to the petitioner viz, Pepsu Road Transport Corporation solely on the ground that it was already having a temporary permit on the route since, 1979 and it was operative on the route without any compliant. No other factor was taken into consideration.

The Appellate Tribunal found that in view of the instructions issued by the State Government dated 4.11.1986 to the effect that Pepsu Road Transport Corporation is running into losses while the respondent Raj Transport Company (P) Ltd. etc. are well managed companies and thus have preferential right over the Pepsu Road Transport Corporation. It was further observed that the respondent is an old transport operator in the state of Punjab and operate on the routes AmritsaT-Bhatinda, Amritsar-Abohtr, Hathur-Amritsar, Amritsar-Chola etc. etc. and already covers a major portion of the route in question. The company has a fleet of 17 higher model buses in excellent condition. Their spare capacity to operate was takes note of as also the facilities provided by them. The Company bad a well established workshop at Amritsar which is one of the termini of the routes. Financial position of the operator, was also taken note of On account of their devotion to serve the public inspite of having suffered at the hands of terrorists during Bandh calls given by them and loss of their busses at the hands of extremists, the respondent applicant were preferred as having superior claim to that of Pepsu Road Transport Corporation.

We find force in majority of reasoning given by the Appellate Authority which factually is not being disputed i.e. their operation on the routes held by them, their financial position, the provision of workshops, their devotion to duty during turmoil in the State etc. We are further of the opinion that mere fact that Pepsu Road Transport Corporation was granted a temporary permit which as pointed out by the counsel opposite was found to be illegal by the apex court in Jagjit Bus Service (Regd.), Amritsar through its Managing Partner Shri Jagjit Singh Vs. State Transport Commissioner, Punjab and Another, would not give a preferential right to Pepsu Road Transport Corporation for permits over other applicants. Even otherwise merits are to be considered on the date the permits are granted and not prior to that. Even factually we cannot find any force in the submission made by the learned counsel for the petitioners that they were infact operating on the routes particularly in view of the judgment referred to above wherein a direction was issued that no temporary permit shall be operative henceforth. If any one was operating on the basis of temporary permits, it must have ceased to operate on expiry of such route permit. Temporary permits were issued for a period of four months. Keeping in view the date of judgment i.e. 27.7.1987. four months expired on 27.11.1987 and the Pepsu Road Transport Corporation cannot be assumed to be operative on the said routes when the matter for grant of permit came up for consideration in December, 1988 when the relevant merits were to be considered. Thus in our considered view we find no error in exercise of jurisdiction by the Appellate Authority in granting permits to the respondents.

Our view for the permits having been rightly granted to the respondents is further supported from an additional fact which has been brought to our notice at the Bar which is to the effect that Pepsu Road Transport Corporation itself has given up routes to the extent of 48000 Kms because of its running in loss. In civil writ petition No. 13236 of 1991 ( Gurja Bus Service Pvt. Ltd. v. The State Transport Commissioner, Punjab, ) decided on 26.3.1992 it was observed that the policy decision of the State dated 4.11.1986 not to claim route permits is still operative and no decision has been taken till date on the suggestion made by the Secretary Transport in his noting dated January 9,1987.

It has further been brought to our notice that after 1990 in view of the amended Motor Vehicles Act, certain routes have been specified to be monopoly routes on which only the Pepsu Road Transport Corporation or the State owned Transport Operators can operate. It is further stated that a part of the route in dispute is monopoly route on which P.R.T.C. has been declined permits, the State would be at liberty to consider the case for granting an additional permit keeping in view the increase in the number of passengers and lapse of time i.e. from 1989 to 1993 when the permits were granted. Since there is no material before us for considering the relative merits for grant of permits with respect to the route which is not covered by the existing permits, i.e. termini of the route till terminus of the route under the permit in dispute the same would be determined by following the appropriate procedure of law.

As far as writ petition No. 5926 and 6376 of 1992 are concerned, the petitioners have sought only writ of mandamus directing the respondents to implement the order of Appellate Authority and in order to support their submission, the learned counsel for the petitioners relied on Gill Bus Service (Regd.) Amritsar''s case (supra). In view of the writ petition of the State o Punjab having been dismissed, the respondents are directed to comply with the orders of the Appellate Authority within six months.