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Judgment
All the above Writ Petitions raise a common question for consideration. By consent of both parties, all of them were heard together. The Writ
Petitions were filed as against the order of the State Transport Appellate Tribunal, Pondicherry (hereinafter referred to as the Tribunal) dismissing
the appeals filed by the respective petitioner/ Corporation (hereinafter referred to as the Corporation) as against the order of the State Transport
Authority, Pondicherry (hereinafter referred to as the Authority) granting variations in favour of the 1st respondent in each of the writ petitions
plying on the respective inter-State route.
The short facts of the case are as follows:-- The 1st respondent in each of the writ petitions are private operators in the Union Territory of
Pondicherry having primary permits granted by the Authority. They made applications for variation u/s 57(3) of the Motor Vehicles Act, 1939.
The same were notified inviting representations from the sector operators. The Corporation filed representations opposing the variation on the
ground that the variation applied for overlaps on the approved scheme and as the name of the operator is not found in Annexure II to the said
approved scheme, the said applications for variation filed by the operators are not maintainable and consequently prayed for rejection of the same.
When the said applications were taken up for consideration by the Authority, the Motor Vehicles Act, 1988, came into force. In the hearing
held for considering the applications for variation filed by the private operators, the Corporation was heard and it reiterated its objections made in
its representations filed pursuant to Section 57(3) of the old Act notification. It was contended before the Authority on behalf of the Corporation
that the route for which the extension now sought for was covered by the scheme route and no variation could be granted on any overlapped route
pursuant to the directions of the Hon''ble Supreme Court. The Authority allowed the applications filed by the operators by its proceedings
impugned in these writ petitions. Aggrieved by the said order, the Corporation filed appeals before the Tribunal. The Tribunal rejected the appeals
on the ground that the appeals u/s 89(1)(b) of the Motor Vehicles Act is not maintainable. The relevant passage of the order of the Tribunal runs
thus:
Now this appeal filed u/s 89(1)(b) of the Motor Vehicles Act reads as follows:
''any person aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof.....''
Since the appeal has been filed under this section, I find that the appellant is not an aggrieved party, because he was not the applicant before the
State Transport Authority, but, he was only objectors before the State Transport Authority, and his objection over-ruled by the State Transport
Authority. The language of Section 89(1)(b) of the Motor Vehicles Act would clearly show that the appeal itself is not maintainable.
Aggrieved by the said order, the Corporation has filed the present writ petitions under Art. 226 of the Constitution.
According to the Corporation, though it is conceded in paragraph 5 of the affidavit filed in support of W.P. No. 16772 of the 1991 that in the
case of Union Territory of Pondicherry, as against the grant of variation, no appeal is provided under the Act or under the Rules framed
thereunder, the Tribunal is vested with revisional jurisdiction u/s 90 of the Act and even if appeal is incompetent u/s 89 of the Act, the Tribunal is
bound to set at right the illegal order of the Authority under the revisional jurisdiction.
The respondents filed counter-affidavits in the writ petitions. According to them, either for filing an appeal u/s 89(1) of the Act or even to file a
revision petition u/s 90 of the Act, the sine qua non is that the person must be aggrieved so as to invoke the said provision and that under the
provisions of the Motor Vehicles Act, 1988, relating to the grant of a permit including variation, the same has been liberalised so as to say ''permit
for all''. Hence, it is contended by the respondents that an existing operator cannot be said to be an aggrieved person under the terms of the Motor
Vehicles Act, 1988, as has been held to be so in the decision of the Supreme Court reported in Mithilesh Garg, Vs. Union of India and others etc.
etc., . Three Judges Bench, which has also been followed by this Court in W.P. No. 10284 of 1992 dated 12-8-1992 and W..P. No. 10579 of
1992 dated 17-8-1992. Therefore, it is contended that the writ petitions are not maintainable. It is further stated that even as regards the plea that
the sectors sought for variation overlaps certain notified routes, the provisions of the Tamil Nadu Act 41 of 1992 saves all the grant of variation
overlapping either draft or approved schemes made from 4-6-1976 onwards. In view of the said provisions also, the Corporation is precluded
from raising any objection that the variation granted ovrelaps certain sectors of notified routes, and the Corporation cannot be said to be an
aggrieved person even on this score.
I have heard Mr. M. Palani, learned counsel for the Corporation, Mr. V.T. Gopalan, learned Senior Counsel and Mr. M. Krishnappan, learned
counsel for the contesting 1st respondents and Mr. P. Krishnamurthi, learned Govt. Pleader, Pondichaerry, for the 2nd respondent/Authority.
At the time of hearing Mr. M. Palani raised three legal contentions, which are as follows:
(a) Whether the appeal filed by the Corporation u/s 89(1)(b) of the Act as against the order granting variation by the State Transport Authority,
Pondicherry, in favour of the private operators is maintainable or not?
(b) If the appeal is not maintainable, whether the Tribunal is not entitled to invoke the revisional jurisdiction available u/s 90 of the Act, when it is
brought to the notice of the Tribunal that the order of the State Transport Authority, Pondicherry, granting variation on a part of the notified route is
illegal and without jurisdiction?
(c) Whether the Corporation are aggrieved persons or not, as against the order granting variation in favour of the existing operators?
With regard to the first contention, Mr. M. Palani would submit that Section 89 of the Motor Vehicles Act provides for the appeal as against the
grant of variation in favour of the existing operators by the third parties. However, the Tribunal in these batch of cases held that the appeal is not
maintainable under this section. According to the learned counsel for the Corporation, the reasonings of the Tribunal or the contentions of the
learned counsel for the respondents in this case are not tenable in law. The phraseology ''any person'' and the term ''any variation'' used therein is
wide enough to cover any person whether it is a permit holder or third party and consequently, the appeal preferred by the Corporation as against
the order of the Authority granting variation is maintainable.
Mr. M. Palanai invited my attention to the decision of this Court reported in A. Vedachala Mudaliar Vs. The State of Madras and Another,
wherein a similar question arose for consideration by this Court where the appeal provision under the old Act is a subject matter of inteprelation.
The relevant passage relied on by Mr. M. Palani is reproduced hereunder (at p. 279, para 4 of AIR):--
..... He also relied upon Section 164 and contended that a party cannot file an appeal against the variation of a condition and therefore the sub-
section gives a clue that the order varying the condition is not a judicial order. But to my mind the terms of that section are wide enoguh to confer a
right of appeal even on third parties if the variation of a condition in the permit issued to another affects his rights. Section 64 reads:--
''Any person (a) aggrieved by the refusal of the Provincial or a Regional Transport Authority to grant a permit or by any condition attached to a
permit granted to him''.
Under Section 64(b) any person aggrieved by any variation of the conditions of a permit can prefer an appeal from the order of the Regional
Transport Authority. The petitioner is certainly aggrieved by the variation of the condition as by the change of the timings his financial interests
would suffer. But it is stated that I must read the words ''the permit'' along with the words ''a permit granted to him'' found in Clause (a) and if so
read any person can only be the person the conditions of whose permit have been varied. Though this argument has some force I am inclined to
hold that Section 64(b) is not confined to the permit-holder the conditions of whose permit have been varied but to any person who is affected by
the variation of the conditions in the permit issued to another .....
Therefore, Mr. M. Palani, learned counsel for the Corporation submitted that the appeal filed by the Corporation is maintainable and the Tribunal
is not justified in dismissing the appeal as not maintainable on the threshold itself and consequently it suffers from error of law requiring the
intervention of this Court.
With regard to the second contention, Mr. M. Palani, learned counsel for the Corporation would submit that even assuming without admitting
that the appeal filed by the Corporation is not maintainable u/s 89(1)(b) of the Motor Vehicles Act, the Tribunal is not left with no other remedy to
interfere with the order of the Authority when it is shown that the order of the Authority is illegal and without jurisdiction. Therefore, the learned
counsel would submit that if the appeal is not maintainable as against the order of the Authority or the Regional Transport Authority granting
variation, then Section 90 of the Act provides for revision as against such order.
Section 90 of the Motor Vehicles act reads as follows:--
Revision -- The State Transport Appellate Tribunal may on an application made to it, call for the record of any case in which an order has
been made by a State Transport Authority or Regional Transport Authority against which no appeal lies, and if it appears to the State Transport
Appellate Tribunal that the order made by the State Transport Authority or Regional Transport Authority is improper or illegal, the State Transport
Appellate Tribunal may pass such order in relation to the case as it deems fit and every such order shall be final.
Therefore, Mr. M. Palani contended that even assuming that no appeal is provided as against the order of the Authority granting variation,
undoubtedly, revision would lie, u/s 90 of the Act. In support of his contention Mr. M. Palani heavily relied on a decision of this Court reported in
Pattuk-kottai Azhuagiri Transport Corporation Ltd., v. V.K. Velayutharn & Sons 1922 2 Mad LW 653 wherein at page 657 it is held as follows:
.....The language of Section 90 of the Act is very wide and all orders of the State Transport Authority or Regional Transport Authority, against
which no appeal lies, will be subject to the power of revision under that section .....
Elaborating his submission, it is argued by Mr. M. Palani, learned counsel for the Corporation, that when it is brought to the notice of the
Tribunal that the order passed by the Authority is totally illegal and without jurisdiction, the Appellate Authority being vested with the revisional
jurisdiction u/s 90 of the Act is duty bound to set at right the illegality or error of law committed by the lower authority in view of the vast power
vested upon it u/s 90 of the Motor Vehicles Act. The position of law on this aspect, according to Mr. M. Palani, is no longer res integra and the
same is concluded by the Hon''ble Supreme Court in the decision reported in Nilkanth Prasad and Others Vs. State of Bihar, of the said decision,
it has been held as follows:--
The Regional Transport Authority not having done its duty under the law, the Appeal Board was entitled, when the record was before it, to revise
the order of the Regional Transport Authority, even if the appeal was incompetent, in view of the vast powers of revision u/s 64A.
The above aspect of the matter was also considered on to occasions by this Court and, this Court held that even if appeal is not maintainable,
when the order granting permit is exfacie illegal and without jurisdiction, the Tribunal is bound to set at right the illegality committed by the lower
authority under the revisional jurisdiction. S. Natarajan, J., as he then was, rendered a decision on this aspect in C.R.P. No. 4046 of 1984 dated
23-1-1985, holding thus:
In addition to this finding, it has also to be pointed out that the Regional Transport Authority was clearly in error in granting permit over a route
which was included in the draft scheme that had been published. The error was so patent that even if the respondent''s appeal was in any way
defective, the Tribunal is bound to set right the mistake committed by the Transport Authority. The ratio laid down by the Supreme Court in
Nilkanth Prasad and Others Vs. State of Bihar, , will squarely apply to the situation encountered by the Tribunal in this case.....
S. Mohan, J., as he then was, in C.R.P. No. 1937 of 1987, etc. batch in his judgment dated 7-9-1987 held as follows:
Even if an appeal did not lie, undoubtedly a revision lies and it is in this connection I have to rely on Nilkanth Prasad and Others Vs. State of
Bihar, , where it is observed :
''In view of the fact, therefore, that the scheme has been notified and route ''AB'' had already been granted to the Rajya Transport and/or the State
Transport Undertaking, the Regional Transport Authority was incompetent to renew a permit over a route embracing route ''AB''. The Regional
Transport Authority not having done its duty under the law, the Appeal Board was entitled, when the record was before it, to revise the order of
the Regional Transport Authority, even if the Appeal was incompetent, in view of the vast powers of revision u/s 64A.
The same view came to be expressed in C.R.P. No. 4046 of 1984 by S. Natarajan, J., as he then was, in his order dated 23-1-1985. The
learned Judge observed as follows:--
In addition to this finding, it has also to be pointed out that the Regional Transport Authority was clearly in error in granting permit over a route,
which was included in the draft scheme that has been published. The error was so patent that even if the respondent''s appeal was in any way
defective, the Tribunal is bound to set right the mistake committed by the Transport Authority. The ratio laid down by the Supreme Court in
Nilkanth Prasad and Others Vs. State of Bihar, , will squarely apply to the situation encountered by the Tribunal in this case. The relevant passage
occurs in para 6 of the judgment and it reads thus:
''The Regional Transport Authority not having done its duty under the law, the Appellate Board was entitled, when the record was before it to
revise the order of the Regional Transport Authority, even if the appeal was incompetent in view of the vast powers of revision u/s 64(A).''
Hence, the first contention of Mr. Subramanyam has to fail.
In this case, what was sought to be argued after all is a question of jurisdiction of the Regional Transport Authority to grant counter-signature in
Nilgiris District. The entire question pertains to the realm of law as to the scope of Section 14. Therefore, if there is an error of law, certainly, by
revisional jurisdition, it could be corrected. In fact, it is conceded that the entire records were there before the Tribunal, both the parties were
heard at length and what was argued as purely a question of law without traversing on facts. Hence, I hold that the revision was fully
competent.....
Therefore, the Corporation submitted that when the order of the lower authority is assailed on the ground of illegality and without jurisdicion,
the Tribunal is not justified in dismissing the appeals summarily on the ground that the appeals u/s 89(1)(b) of the Motor Vehicles Act are not
maintainable.
With regard to the third contention, it is submitted that the application for variation was filed under the old Act and to the said application, the
Corporation filed its representation opposing the variation. The Corporation was also heard by the Authority. It is further contended that when it is
a party to the proceedings before the original authority, and the interest of the party, who was heard before the original authority was affected,
certainly, in law, the Corporation is an aggrieved person and consequently the plea that the Corporation is not an aggrieved person merely on the
basis of the new Act, 1988, is not tenable in law. In the instant case, according to the learned counsel for the Corporation, as the grant of variation
is hit by the approved scheme and the scheme being approved for the benefit of the State Transport Undertakings, certainly the Corporation is an
aggrieved person either within the meaning of Section 89(1)(b) or u/s 90 of the Act.
In support of the above contention, a Division Bench decision of this Court in Review Petition No. 8 of 1993 has been relied on by the learned
counsel for the Corporation. The question before the Bench was, whether the Corporation is an aggrieved person or not when a scheme is
infringed by the order of the Transport Authorities. The Division Bench held as follows:
..... Taking the question of locus standi in the first instance, we find that there is no merit in the contention of learned counsel for the applicant. We
have already referred to the fact that the Tribunal dismissed the application of the 1st respondent to implead itself as a party to the appeal on the
ground that the matter would be considered under the old Motor Vehicles Act, 1939 and any order in the appeal would only result in only one
person being entitled to the permit on the route in question. The said reasoning of the Tribunal was expressly apporved by this Court in its order in
the Writ Petition and only because of that, the Writ Petition was dismissed. But, when the Tribunal acted contrary to what was stated earlier and
applied the provisions of the new Motor Vehicles Act of 1988 accepting the joint memo of compromise filed by the parties and also taking a
wrong view of the ruling in Pandiyan Roadways Corporation Ltd. Vs. M.A. Egappan, , the 1st respondent it, undoubtedly entitled to challenge the
order of the Tribunal, inasmuch as the grant of permit in favour of the applicant herein offends the provisions of the Act as well as the approved
schemes..... Hence, there can be no doubt whatever that the 1st respondent has locus standi to maintain the Writ Petition.
Therefore, Mr. M. Palani contended that the Corporation is an aggrieved person as against the order of the Authority granting variations in favour
of the private operators.
Mr. V.T. Gopalan, learned Senior Counsel appearing on behalf of the contesting 1st respondent placed strong reliance on the decision of the
Supreme Court reported in Mithilesh Garg, Vs. Union of India and others etc. etc., -- Three Judges Bench, for the proposition that the
Corporation is not an aggrieved person. It is contended on behalf of the Corporation that this decision of the Supreme Court has no application to
the facts of the present case because that case arose under Chapter V of the Act, which deals with the grant of permit and variation on the non-
scheme routes, I am unable to give my seal of approval to the said contention of the learned counsel for the Corporation for the reasons stated
infra.
Mr. V.T. Gopalan would urge that either u/s 89(1)(b) or even u/s 90 of the Act providing for appeal and revision, the essential pre-requisite to
be satisfied by a person desirous of filing an appeal or revision is that he should be a person aggrieved. 1 agree with the contention of Mr. V. T.
Gopalan. To find out whether the State Transport Undertaking or for that matter, any other operator, will be a person aggrieved, Section 80 of the
Motor Vehicles Act, 1988, has to be compared and contrasted with Seciion 57 of the Act. The Three Judges Bench of the Supreme Court in the
above cited decision held as follows Mithilesh Garg, Vs. Union of India and others etc. etc.,
A comparative reading of the provisions of the Act and the old Act makes it clear that the procedure for grant of permits under the Act has been
liberalised to such an extent that an intended operator can get a permit for asking irrespective of Ihe number of operators already in the field. u/s 57
read with Section 47(1) of the old Act an application for a stage carriage permit was to be published and kept for inspection in the office of the
Regional Transport Authority so that the existing operators could file representations/objections against the said application. The application, along
with objections, was required to be decided in a quasi-judicial manner. Section 47(3) of the old Act further permitted the imposition of limit on the
grant of permits in any region, area or on a particular route. It is thus obvious that the main features of Chapter IV ''control of transport vehicles''
under old Act were as under:
The applications for grant of permits were published and were made available in the office of the Regional Transport Authority so that the
existing operators could file representations.
The applications for grant of permits along with the representations were to be decided in quasi-judicial manner; and
The Regional Transport Authority was to decide the applications for grant of permits keeping in view the criteria laid down in Section 47(1) and
also keeping in view the limit fixed u/s 47(3) of the Act. An application for grant of permit beyond the limited number fixed u/s 47(3) was to be
rejected summarily.
The Parliament in its wisdom has completely effaced the above features. The scheme envisaged under Sections 47 and 57 of the old Act has
been completely done away with by the Act. The right of existing-operators to file objections and the provision to impose limit on the number of
permits have been taken away. There is no similar provision to that of Section 47 and Section 57 under the Act. The Statement of Objects and
Reasons of the Act shows that the purpose of bringing in the Act was to liberalise the grant of permits. Section 71(1) of the Act provides that while
considering an application for a stage carriage permit the Regional Transport Authority shall have regard to the objects of the Act. Seciion 80(2),
which is the harbinger of Liberalisation, provides that a Regional Transport Authority shall not ordinarily refuse to grant an application for permit of
any kind made at any time under the Act. There is no provision under the Act like that of Section 47(3) of the old Act and as such no limit for the
grant of permits can be fixed under the Act. There is, however, a provision u/s 71(3) of the Act under which a limit can be fixed for the grant of
permits in respect of the routes which are within a town having population of more than five lakhs.
It is thus seen from the above judgment of the Supreme Court that after such comparison, the right of the existing operators to file objections
has been taken away. Therefore, when the State Transport Undertaking cannot in law and particularly on the terms of Section 80 of the Act object
to the grant of variation, it cannot be, in my view be permitted to object for the first time at Ihe appellate stage by filing an appeal. To countenance
such a right in the existing operators as well as State Transport Undertakings would, im my opinion, completely negate the Legislative policy
embodied in Section 80 of the Motor Vehicles Act, 1988, which has also been incorporated in the abovesaid decision.
I am also unable to agree with the contention of Mr. M. Palani, learned counsel for the Corporation, a that the grant of variation overlapped
many approved schemes and as such, the Corporation has the locus standi to file the appeals. The said contention, in my opinion, cannot at ail be
countenanced or sustained in view of Section 6(2) of the Tamil Nadu Act 41 of 1992, which specifically provides for grant of a variation even on
approved scheme routes. Further, the contention of the learned counsel for the Corporation that the provisions of Act 41 of 1992 would apply
only to intra-State operators and not to inter-State operators has been negatived by a Division Bench of this Court in W.P.No. 1221 of 1991, etc.
batch dated 30-4-1993.
The further contention of Mr. M. Palani, learned counsel for the Corporation, that this Court in W.A. No. 978 of 1993 and Review
Application No. 8 of 1993, dated 12-8-1993 held that the Corporation would be an aggrieved person in respect of the grant of permits for routes
overlapping approved scheme, cannot also help the Corporation since the grant of permits stand on a different footing from the grant of variations,
in that, there can be no grant of fresh permits u/s 6(4) of the Tamil Nadu Act 41 of 1992, whereas u/s 6(2), variations can be granted overlapping
the approved scheme routes. I am, therefore, unable to uphold any one of the contentions raised by Mr. M. Palani, learned counsel for the
Corporation, and reject the same.
As rightly contended by the respective learned counsel for the respondents, the operators are always entitled to take shelter under the Tamil
Nadu Motor Vehicles (Special Provisions) Act 41 of 1992. As stated above, this Court in W.P. No. 1221 of 1991, etc., batch dated 30-4-19
93, while upholding the validity of the Tamil Nadu Act 41 of 1992, held that this Act applies to the inter-State operators also. The interpretation
placed by Mr. M. Palani on the above judgment is not tenable in law. The judgment of the Supreme Court in Mithilesh Garg, Vs. Union of India
and others etc. etc., and a Division Bench of this Court in W.P. No. 1221 of 1991 etc., batch, will come to the aid of the respondents and
therefore they are entitled to take shelter under the provisions of the Tamil Nadu Act 41 of 1992.
For all the reasons stated above, the orders of the Authority as well as the Tribunal are legal and within their jurisdiction and therefore, not
liable to be set aside as prayed for by the Corporation. There are absolutely no merits in the writ petitions and therefore, all the writ petitions fail
and are dismissed. However, there will be no order as to costs.
Petitions dismissed.