JUDGMENT
V.S. Kokje, J.
1. The petitioner carries on business of plying of passengers buse Section During the course of his business he had applied for grant of temporary permit on the Rajgarh-Bakani inter State route on which a vacancy for making two single trips daily to be operated by one bus had occurred. Respondent No. 3 had also applied for temporary permit in the same vacancy. The petitioner’s application was dated 9-6-1992 and that of the respondent No. 3 was dated 11-6-1992. The applications were heard by the State Transport Authority and were disposed of by a common order dated 26-6-1992, granting temporary permit to respondent No. 3 and rejecting the – application of the petitioner. Against this order an appeal before the S.T.A.T. under Section 89(1)(a) of the Motor Vehicles Act, 1988 was filed by the petitioner. The appeal was also dismissed, firstly on the ground that under the New Act grant of permit to rival claimaint could not be challenged in an appeal and secondly that the equity was not in favour of the petitioner as he had ten other stage carriage permits and 3-4 temporary permits already in his pocket. Against this decision, the present petition has been filed.
2. Shri G. M. Chaphekar, the learned Senior Counsel appearing for the petitioner submitted relying on the decision in Ram Gopal v. Anant Prasad, AIR 1959 SC 851 that whenever an order granting a permit results in refusing it to another person, appeal against refusal to grant permit is maintainable though consequentially grant of permit is also under challenge.
3. Shri R.G. Waghamare, the learned senior counsel appearing for the respondent No. 3 submitted that Section 89 of the New Act creates a complete bar against any appeal challenging grant of permit to anyone. He submitted that Ram Gopal’s case (supra) was decided in view of Section 64 of the Motor Vehicles Act (old) and the position in law has changed. The learned counsel also relied on several decisions including AIR 1992 SC 443, AIR 1987 SC 117, AIR 1988 SC 184 and AIR 1965 SC 107., in support of his contention that jurisdiction under Article 227 of the Constitution of India is limited one and when the Tribunal has based its judgment on merits on sound reasoning and has refused grant of permit to the petitioner as it will result in a monopoly, there is no scope for interference by this Court in its supervisory jurisdiction under Article 227 of the Constitution of India.
4. Let us first deal with the point as to the maintainability of the appeal before the S.T.A.T. Comparison of Section 64 of the Motor Vehicles Act of 1939 with Section 89 of the New Act would show that there is no substantial difference in the language of the Section The contention of Shri R.G. Waghamare that the legal position has changed has, therefore, no force. Like the 1988 Act the 1939 Act also permitted appeal only against refusal to grant of permits and not against grant of permit except under Clause (f). This simply means that right of appeal was not available to a stranger who had no stake in the matter and who had not suffered deprival of grant of permit. Where a grant of permit to one results in refusal of permit to another, there is nothing in Section 89 of the Act or in any of the provisions of the Motor Vehicles Act of 1988 and there was nothing in Section 64 of the 1939 Act to take away the right of a person to challenge the refusal of permit to him even if consequentially the challenge is to the grant of permit to another.
5. The Supreme Court in Ram Gopal’s case (AIR 1959 SC 851) (supra) though in a slightly different setting while dealing with Section 64 of the old Act, has held that the different clauses in Section 64 deal with different situations. Each is independent of the others. One clause does not affect the right of appeal under the other clauses. If an appeal lies under any of the clauses, it has to be an effective appeal and the appellate authority must have all the powers to give the relief to which the appellant is found entitled. In that case, the Supreme Court was dealing with a situation whether right to appeal of a person covered by Clause (f) of Section 64 of the old Act, who had not opposed the grant of permit was under challenge and it was being contended that though Clause (a) of Section 64 of the old Act was in general terms and gave a right to appeal to any aggrieved person against refusal to grant of permit, the right was circumscribed by Clause (f) of Section 64, which provided that if a person had opposed the grant of permit, he could file appeal against the grant thereof. Under Section 89 of the New Act this right to challenge the grant of permit to a competitor has been taken away. This is a difference on which Shri R.G. Waghmare banks upon. However, this would not affect the ratio of Ramgopal’s case (supra), and various clauses of Section 89 would still have to be treated independent of each other providing distinct situations, in which right to appeal is available not depending on other clauses. In the case before us it is undisputed that both the petitioner and respondent No. 3 were competing for the same permit and it has been refused to the petitioner. If that is so, the petitioner has distinct and separate right under Clause (a) of Sub-section (1) of Section 89 of the 1988 Act. His right has not been hedged in by any of the other clauses also because no other clause provides that application against refusal of permit involving grant of permit to someone else is barred. In this context the observations in paragraph 12 of the decision in Ramgopal’s case (AIR 1959 SC 851) (supra) are germane. There the Supreme Court has observed that it is not right that in an appeal which is competent under Clause (a) of the Section, the order renewing or granting a permit cannot be set aside unless the case was such that an appeal under another provision was also competent. It was further observed that to hold so would result in making the right of appeal given by clause (a) wholly infructuous in those a cases where no relief can be given in the appeal except by setting aside the order granting or renewing a permit, for example, where there was only one permit to grant. It was further observed by the Supreme Court that if an appeal lies under any of the clauses of the Section 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.
6. The case before us is even stronger. Admittedly, the appeal is against the refusal of permit under Section 89(1)(a) of the Act. There is no other provision barring the appeal against refusal to grant permit. The only objection is there being no right given by the Act to challenge a grant of permit and as allowing the appeal of the petitioner would result in setting aside grant of permit to the respondent No. 5, in effect it is an appeal against the grant of permit to respondent No. 3 which has not been provided for by the Act. Applying the ratio of Ramgopal’s case (AIR 1959 SC 851) (supra) to the present case, it has to be held that since the right of appeal against refusal to grant permit is available to the petitioner, his appeal cannot be thrown out as not maintainable only because if the appeal is allowed, the result will be that the grant of permit to respondent No. 3 shall have to be set aside. If the consequences of allowing the appeal inevitably is setting aside grant of permit to respondent No. 3, it cannot be helped. The right of appeal of the petitioner cannot be allowed to become infructuous or defeated only because it will result in setting aside grant of permit against which no appeal is provided by the Act. When the legislature intended to provide for an appeal against refusal to grant a permit, it shall be deemed to have intended to grant such right of appeal in all circumstances and contingencies which may arise. We, therefore, hold that the appeal of the petitioner was maintainable and the decision of the State Transport Appellate Tribunal in this regard holding it to be untenable, cannot be sustained.
7. Having held the appeal to be untenable the S.T.A.T. should not have proceeded further to consider the merits of the case, In view of the fact that the temporary permit under question is to expire on 31st October, 1992 and in view of the fact that there is likelihood of the parties again competing for temporary permit for a further period, it would not be proper for us to consider the other questions raised on merit as regards the monopoly of permits and other grounds on which the permit was said to be rightly refused to the petitioner in view of the order which we propose to make in this case. Our observations on merits are bound to influence the lower Tribunals while deciding the applications for temporary permits for further period by the same parties and, therefore, we refrain from entering on other questions on merits. The rulings cited by Shri R.G. Waghamare, learned counsel for the respondent No. 3, on the scope of Article 227 of the Constitution of India, would not apply to the present case because whether an appeal was maintainable or not is a question of jurisdiction and if the S.T.A.T. has gone wrong on it, this Court is duty bound to correct it.
8. After having held the appeal to be maintainable the normal course would have been to direct the S.T.A.T. to entertain the appeal and decide it on merits. However, in view of the fact that only four working days would be available for the decision of the case by the S.T.A.T. before the appeal becomes infructuous, we would not direct hearing of the appeal again. We have written this detailed order only to decide the point as to the maintainability of such appeals, which may have been occurring frequently before the S.T.A.T.
9. With the aforesaid observations, the petition is disposed of. There shall be no orders as to costs.