K. Balasubramania Chetty v. N. M. Sambandamoorthy Chetty

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1672 of 1973. A;ipeal by special leave from the judgment and order dated the 9th January, 1973 of the Madras High Court in C.R.P. No. 2486 of 1972. Y. S. Chitale, C. S. Prakasa Rao and A. T. M. Sampath, for the appellant. K. s: Ramamurthy, V. Subramanian and Vineet Kumar, for 1he respondent. The judgment of the Cou1t was delivered by BHAGWAn J.-Therc 'were fifteen applicants before the Regional Transport AuthQrity, Chingleput for grant of a stage carriage permit to ply a bus on the route Red Hills to Kancheepuram. This route covers a distance of sot miles of 81.27 kilometers ;ind is a 'Ieng route.' within the meaning cf that expression as used in rule l55A of tlle Motor Vehiqles Ruk:s, 1940. Out of fifteen applicants, only two arc, before us, namely, the appellant and the respondent. The appellant was applicant No. 7, while the respondent was applicant No. 6.

The Regional Transport Authority, after considering the applications, made an order dated 19th June, 1971 granting the permit to the ri!spondent, though on marking according to the provisions contained in clause (3) of rule 155A, the respondent obtained only ?.40 marks as against 9.00 marks obtained by the appellant. The main ground on which the Regional Transport Authority preferred the respondt::nt to the appellant was that the respondent was a sing!~ bus operator. while the appellant was a. multi bus operator having four stage carri- :age permits including a stage carriage permit recently granted to him. The appellant and seven other applicants, who were aggrieved by the decision of the Regional Transport Authority, granting a permit to the respondent, preferred appeals b~fore the State Transport Appellate Tribunal impleadlng the respondent as the opposite party in the appea.ls.

The State Transport Appellate Tribunal took the view that at the date of the considera1ion of the applications by the Regional Transport K· B. CHETTY v. N.M.S. CHETTY (Blip,gwati, !.) 93 Authority,· fhe respondent had a workshop but it was housed onLy in ~ thatched shec: and not in a pucca fire proof building and the respond-· ent was, therefore, not entitled to two marks under clause (3) (E) of rule 155A and his total marks should, therefore, have been 5.40 and not 7.40. The.

Regional Transport Authority had refused to grant two marks to the appellant on account of sector qualification on the ground that he had been plying only on temporary permits but this view did not find favour with the State Transport Appellate Tribunal which held that under clause (3 )(C) of rule 155A it was immaterial whether sector experience was derived by an applicant under a tempo.· rary permit or a permanent permit and the appellant was, therefore, entitled to two marks under that clause on account of sxtor experience even though gained by operation on temporary permits. So far as the past record was concerned, the State Transport Appellate Tribunal relied heavily on the fact that the history sheet of the appellant was clean without any adverse entry while the respondent had one adverse entry· in the history sheet relating to his single stage carriage and four adverse entries in the history sheet relating to his lorry operation.

The· State Transport Appellate Tribunal also pointeG out that a portion of' the route fell within the interior roads and it was, therefore, desirable in public interest to prefer "an experienced operator instead of single· bus operator". Having regard to these considerations the State Transport Appellate Tribunal set a&ide the order of the Regional Transport Authority granting permit to the respondent. The State Transport Appellate Tribunal then proceeded to consider who amongst the appellants before it deserved to be granted permit. After considering the· claim o( the appellants before it, the State Transport Appellate Tribunal took the view that since the appellant had higher marks which reflected his superior qualifications and was an experienced operator with a clean history sheet, he was entitled to be preferred to the other appellants and in this view, the State Transport Appellate Tribunal, by an order dated 23rd September, 1972, granted permit to the appellant.

The respondent thereupon preferred a revisfon applicatfon to the High Court under section 64B of the Madras Vehicles Act, 1939. The learned Single Judge, who heard the revision application, held that the State Transport Appellate Tribunal had acted with material irregu-- larity in exercise of its jurisdicfion in preferring the appeilant to the respondent for the gramt of permit. There ·were in the main five reasons which prevailed with the learned Singfe Judge in taking thfa view in favour of the respondent.

First, the learned Single Judge held that though according to the provisions for marking contained· in clause (3) of rule 155A the appellant had admittedly more marks than the respondent, that was not a determinative factor because rufo 155A was itself subject to the overriding consideration of public interest emphasised in section 4 7 (1} of the Act and public interest requiied that in the socialist pattern of society which we had adopted monopoly should as far as possible be avoided and a smaller operator with one stage ·carriage permit should be preferred to a bigger operator having three or more stage carriage permits. This important ~nsi­ deration was ignored by the State Transport Appellate Tribunal irr 94 preferring the appellant to the respondent.

Secondly, the State Transport Appellate Tribunal had. over looked the fact that the appellant was a recent grantee of a stage carriage permit though it was a relevant circumstance which weighed ag::iinst the appellant in the pm~ess of comparison with the respondent. Thirdly, a proper standard of .comparison was not applied in considering the rival claims of the appellant and the respondent. Though the history sheet of the respondent in rega,rd to his perfo{!llance as a lorry operator was scanned by the State Transport Appellate Tribunal over a period of ten years, no such scrutiny was made in the case of the appellant of the history sheet relating to his stage carriage operation for the past ten years and .this vitiated the order of the State Transpon Appellate Tribunal. Fourthly, the respondent was entitled to two marks on account of workshop under clause (3)

(E) of rule !SSA and these had been wrongly denied by the State Transport Appellate Tribunal, and lai,tly, .the appellant was not entitled to two marks on account of sector ~x­ perience under clause (3) (C) of rule lSSA since the sector experi· .ence claimed by him WiiS on the basis of operation on temporary permits. The learned Single Judge accordingly allowed the revisi0n appli- ·Cation and set aside the order of the State Transport Appellate Tribunal granting permit to the appellant. The result was that the order of the Hegional Transport Authority granting permit to th~ respondent was restored. The appellant was obviously aggrieved by this order made by the learned Single Judge and he accordingly preferrect the present appeal with special leave obtained from this Court. We will first dispose of the last two reasons which prevailed with the learned Singl'e Judge in interfering with the order of the State Transport Appellate Tribunal.

So far as the claim of the respondent for two marks in respect of workshop under clause (3) (E) of rule l 55A is concerned, we agree with the learned Single: Judge that the State Transport Appellate Tribunal was in error in refusing that claim. The Regional Transport Officer under instructions from the Regional Transport Authority inspected the workshop of the respondent and found that it was in a pucca fire proof building and the respond1~nt was accordingly entitled to two marks under clause (3) (E) of rule 155A. But thpt would not make any difference because even with these two marks, the total number of marks of the respondent would not exceed 7.40 as against 9 marks of the appellant. Moreover, these 9 marks, do not include two marks on account of sector expcrf. ence under clause (3 )(C) of rule l SSA. The State Transport Appellate Tribunal gave two marks to the appellant on account of sector experience but the learned Single Judge took a different view.

We do not think the learned Judge was right in refusing two marks to the appellant on this count. Clause (3) ( C) of rule 155A provides that two marks shall be awarded to the applicant who on the date of consideration of the application by the Regional T~ansport Authority bas been plying a stage carriage on the entire route. It does not contain any restriction that in order to be entitled to these two marks the applicant should have been plying on the route on the basis of a p1~r­ manent permit. It is immaterial whether the applicant has been plying 'On the route on a temporary permit or a permanent permit. \Vhat is K. B· CHETTY v. N.M.S. CHETTY (Bhagwati, J.) 95 material· is that the applicant should have experience of plying on the route and this experience would be there whether plying is done :in a temporary permit or on a permanent permit. The appellant was, therefore, entitled to two marks on account of sector experience under clause (::)

(C) of rule 155A and that would raise his total number of marks to 11. The position, therefore, was that the appellant was entitled to 11 marks as against 7.40 of the respondent. Bui that by itself would not be determinative of the controYersy. The paramount consideration to be taken into account in determining as to which of the applicants should be selected for grant of permit always is public interest. Section 4 7 (1) provides in so many words that the Regional Transport Authority shall, in considering an application for a stage carriage permit ha.ve regard inter alia, to "the interest of the public generally'', and this is a consideration which must necessarily outweigh all others. It is ultimately on the touchstone of public interest that selection of an applicant for grant of permit must be justified.

Clause ( 3) of rule J 55A undoubtedly provides for giving of marks to the rival applicants but the number of marks obtained by each applicant can only provide a guiding principle. for :he grant of permit. lt can never override the consideration of public interest which must dominate the selection in all cases. In fact clause ( 4) of rule 155A concedes that after the applicants are ranked according to the total marks obtained by them the applications shall be disposed of in accordance with the provisions of section 4 7 ( 1 ) . The fact that the appellant had 11 marks as against 7.40 of the respondent would certainly be a factor in favour of the appellant, but notwithstanding his higher marks, if public interest so requires, he may have to yield place to the respondent in the matter of selection for grant oi permit.

Now, two circumstances were relied upon by the learned Single Judge for outweighing the higher marks obtained by the appellant and justif.ving the grant of permit to the respondent in public interest. The first was that the respondent was a single bus operator while the appellant was a multi bus operator having four stage carriage permits and the second was that one of the stage carriage permits was recently granted to the respondent and hence he was in terms of the 'motor vehicle jurisprudence' a "recent grantee". Botheiese circumstances by themselves are not sufficient to constitute stfh requirement of public interest as to outweigh the higher marks obtained by the appeI- lant. This Court had occasion to consider in AjanOia Transports (P) Ltd., Coimbatore v. Mis. T. V. K. Transport, Pulampatti, Coilnbatore Dist.

(,1) the relevance of possession of more than one permit as also recent grant in selecting an applicant for grant of permit and Beg, J., speaking on behalf of the Court, stated the law on (he subject in the following words : "It should be clear when the main object, to which other considerations must ;yield in cases. of conflict, of the permit issuing powers under sec. 4 7 of the Act is the service of (1) [1975] 2 S.C.R. 166. 96 [1975J 3 S.C:.R. interest of the public generally, that any particular fact or circumstan,ces, such as a previous recent grant in favour of an applicant or the holding of other permits by an operator, cannot by itself, indicate how it is related to this object. Unless, there are other facts and circumstance which link it with this object the ne.xus will not be established. For instance, an applicant may be a recent grantee whose capacity to operate a transport service efiiciently remains to be· tested so that a fresh grant to him may b~ pre-mature.

In such a case, another applicant of tested efficiency may be preferred. On the other hand, a fresh grantee may have within a short period, disclosed such superiority or elhciency or offer such amenities to passengers that a recent grant. in his favour may be no obstacle in his way at all. Again, the fact that an applicant is operating other motor vehicles on other permits may, in one case, indicate that he had exceeded the optimum, or, has a position comparable to a monopolist, but, in another case,. it may enable the applicmlt to achieve better efficiency by moving towards the optimum which seems to be described as a "viabl.: unit" in the rules framed in Madras in 1968. Thus, it will be seen that, by itself, a rec:ent grant or the posse.ssion of other permits is neither a qualification nor a disqualification divorced from otht:r circumstances which could indicate how such a fact is related to the inten:sts of the public generally.

It is only if there are other facts establishing the correlationship and indicate its advantages or disadvantages to the public generally that it will become a relevant circumstance. But, in cases where everything else is absolutely equal as between two applicants, which will rarely be the case, it could b:! said that an application of principle of equality of opportunity, which could be covered by Article 14, may enable a person who is not a fresh grantee to obtain a preference." It would, therefore, be seen that the me:re fact that an applicant has more than one permit or he is a recent grantee cannot by itself be regarded as a fac;tor against him in the comparative scale. It would all depend on the facts and circumstances of each case. As pointe:d out by Beg, Jftin the case just cited :

"an applicant may be a recent grantee whose 'capacity to operate a transport service efficiently remains to be tested so that a fresh grant to him may be pre-mature--on the other hand, a fresh grantee may have within a short period disclosed such superiority or efficiency or offer such amenities to pas-, sengers that a recent grant in his favour may be no obstacle in his' way at all--a recent grant coulq not, considered by itself and singly. ht'! converted into a demerit". Similarly, possession of more than one permit also cannot by itself, divorced from other circumstances, b~ regarded as a disqualification. It m~y in a ~iven case ~how tha~ the applicant has already reached the viable umt of five stagi:: carnages contemplated under clause (3) (F) of rule 155A or that the effect of oranting permit to him would be to make him a moriopolist on thf: route--a result disfavoured by the decision of this Court in Sri Rama K. B. CHETTY v. N.M.S. CHETTY (Bhagwati, J.) 97 Vilas Service (P)

Ltd, v. C. Chandrasekharan & Ors.( 1) as being inconsistent with the interest of the general public-or; on the other hand, it may be a circumstance in his favour enabling him to achieve greater efficiency by moving towards the optimum of viable unit. The learned Single Judge was, therefore, in error in rejecting the claim of the appellant to the grant of permit by mechanically relying 9n the circumstance that the appellant was a multi bus operator having four stage carriage permits, including a recent grant, without considering how in the light of the other facts and circumstances, it was correlated to the question of public interest. There was nothing to show that this circumstance would have any prejudicial or adverse impact on public interest, if permit were granted to the appellant not·· withstanding it.

The four stage carriage permits which the appellant had were not on the same route and there was· no question of any monopoly being created in his favour if the permit applied for by him were granted. In fact, possession of more than one permit by the appellant was a circumstance in his favour, because according to cfause · ( 3 )(F) of rule l SSA an applicant operating in more than four stage cm;riagcs would be entitled to one mark for each stage carriuge in order to have n viable unit of five carr;age. The guiding principle laid down in clause (3)

(F) of rule l SSA proceeds on the hypothesis that an applicant wouic.I be able to achieve greater efficienQy if he has a larger number of stage carriages, but it sets a limit of five stage carriages as it was thought that that would be sufficient to constitute n viable unit which could legitimately be. permitted to an applicant, consistently with the requirement of a socialistic pattern of society that there should k c.listributive or social justice and no undue economic disparities. So long, therefore, as an applicant has not more than four stage carriages. it cannot hy itself be regarded as a factor against him and, as pointed out by Beg, J., in the case cited above, the rule in clause (3) of rule ISSA providing for giving of one mark to the applicant for each stage carriage operated by him should be taken into account unless there is good enough reason to depart from it.

"Every additional st&ge carriage upto four would give an .applicant an additional mark so as to help him to make up a viable unit of five". The State Transport Appellate Tribunal was, therefore, right, in the circumstances of the case, in not regarding possession of four stage carriage permits by the appellant, including a recent grant, as a circumstance against him, but treating it as a circumstance in his favour by adding four marks under chmse ( 3 )(F) <;>f rule l SSA. and the learned Single Judge acted erroneously in upsetting this view taken by the State Transport Appellate Tribunr.1. The learned Single Judge was also in error in holding that the sam~ standard was not applied by the State Transpor: Appellate Tri· buna.l in comparing the history sheets of the appellant and the res• ponclent.

The history sheet of the appellant related only to his performance as stage carriage operator and the entire history sheet was before the State Transport Appellate Tribunal and it showed that the appellant ha.Q--a :lean record. On the other hand, the respondent ( 1) [1964] S S.C.R. 869 .. 8-L379 Sup.CI/75 had two history sheets, one relating to his performance as stage caririage operator and the other rdating to his performance as lorry operator and both the history sheets showed adverse entries. It can hare!!:)• he disputed that this comparison with reference. to the past perfonn · <mce of the appellant and the respondent was relevant to the questfon .as to who between the two should b~ selected for grant of permit. It may be that the history sheet of the respondent as lorry operator related to a period of ten years while that of the appellant as a stage carriage perator covered a shorter period, but that cannot be helped.

The comparison has to be made on the basis of the available material :ind if the history sheet of the respondent, which may be for a longer period, shows that the past performance of the respondent \vas not satisfactory while the history sheet of the appellant, though for 'horter period, shows that he has had a dean record of perfonna'nce. that would certainlv be a n:,lcvant ciJCumstauce to be taken into ;::ccount. TI1e State Transport Appellate Tribunal was plainly right in rciying on this cin.:umstance, amongst others, for the purpose of pr.:- fc'r,·ing tl:c appellant to the respondent.

Before we part with this case we may point out that the learned Single Judge overstepped the limits of his rcvisional jurisdiction a!ld treated the revision application before him as if it were an appeal. n1at was clearly impermissible as the rcvisional jurisdiction of the High Court under secti9n 64B is as severely restricted as that under section l i}_ of the-Code of Civil Procedure and it is on1y where there is a 'iurisdictional error or iUcgality or material irregularity in the exercise of jurisdiction that the High Court can interfere under section 648 with an order made by the State Transport Appellate Tribunal. We must, therefore, set aside the judgment of the lcarnc<l Siugk Judge and restore the order made by the State Transport Appellal.: Tribunal gran~ing permit to the appellant. The appeal is accordingly :1llowcd. The respondent will pay the costs to thC' appellant. P.B.R. Appeal allowed.