JUDGMENT
S.K. Ray, C.J.
1. All these three applications have been heard analogously as they involve identical questions of law. Opposite parties 1 and 2 in each of these writ applications are respectively State Transport Appellate Tribunal, Orissa, and State Transport Authority. The petitioners have prayed for issuance of a writ of certiorari to quash Annexure-2, which is the impugned proceeding of opposite party No. 2 dated 22-2-1975 by which their applications for grant of endorsement under Rule 3 (1) of the Orissa Tourist Vehicles Rules, 1967 (hereinafter called the ‘Rules’) have been rejected. The consequential intimation of this order of rejection to the petitioners which is Annexure-3, and the judgment and order of opposite party No. 1 dated 15-4-76 by which M.V. Appeal No. 15 of 1975 preferred by the petitioner in O.J.C. No. 381 of 1976, M.V. Appeal No. 16 of 1975 preferred by the petitioner in O.J.C. No. 382 of 1976 and M.V. Appeal No. 17 of 1975 preferred by the petitioner in O. J. C. No. 881 of 1976, which were analogously heard, have been dismissed. This order of opposite party No. 1 is Annexure-4 in O.J.C. Nos. 381 and 382 of 1976 and is Annexure-6 in O. J C. No. 881 of 1976.
2. By Annexure 1 dated 24-6-1974 opposite party No. 2 invited applications for endorsement on permit of motor cab or omnibus authorising it to ply as an All-India Tourist vehicle. This notice set out different numbers of vacancies available to be filled up in respect of three classes of vehicles. There were 91 vacancies in respect of tourist motor cab, 11 vacancies in respect of tourist omnibus with passenger capacity not exceeding 29 and 2 vacancies in respect of tourist omnibus with passenger capacity exceeding 29. Such applications were to be dealt with in accordance with the provisions of the Rules framed by the State Government in exercise of the powers conferred by Section 68 of the Motor Vehicles Act IV of 1939 (hereinafter called the ‘Act’). The Rules provided that the State Transport Authority (opposite party No. 2) could grant an endorsement on the contract carriage permits granted under Section 51 of the Act in the State in relation to any motor cab or omnibus to the effect that such vehicles to which the permits relate are ‘All India Tourist Vehicles.’
3. In response to Annexure-1, the petitioners along with 57 other persons filed two sets of applications each, one set was for grant of contract carriage permit in the State of Orissa and another set of applications for endorsement on such permits envisaged under Rule 3 (1) of the Rules. All these applications were processed under Section 50 of the Act in course of which three representations were received. The S. T. A. in its 105th meeting dated 22-2-1975, decided to grant permits for all India Tourist Omnibus with passenger capacity not exceeding 29 to eleven applicants, one from each of the district of Balasore, Bolangir, Dhenkanal, Ganjam, Kalahandi and Puri, three from the district of Cuttack and two from the district of Mayurbhanj, and rejected the applications of the petitioners in O.J.C. Nos. 382 and 881 of 1976. Those grantees (except one Pradip Kumar Nath whose name was expunged from records of the appeals before the Tribunal) have been impleaded as opposite parties 3 to 12 in O.J.C Nos. 382 and 881 of 1976. The S.T.A. in that very meeting also decided to grant permits for All India Tourist Omnibus with seating capacity more than 29 in favour of two persons by rejecting the claim of the petitioner in O.J.C. No. 381 of 1976. These grantees have been impleaded as opposite parties 3 and 4 in O.J.C. No. 381 of 1976.
4. Being aggrieved by the aforesaid decision of the S.T.A. the petitioners preferred three motor vehicle appeals to the State Transport Appellate Tribunal, namely, M.V. Appeals Nos. 15, 16 and 17 of 1975. All these three appeals were heard analogously and the Tribunal held by his common judgment that the S. T. A. acted with jurisdiction In entertaining the applications for grant of endorsement under rule 3 of the Rules and to deal with them compositely with applications for All Orissa Contract Carriage permit. He also held that appeal to the State Government lay and not to him as provided in Rule 3. Sub-rule (8) of the Rules and that since rule 3 of the Rules authorised the S.T.A. to endorse a permit, there was no inherent lack of jurisdiction in rendering a decision to grant endorsement in anticipation of grant of stage carriage permits to such applications. On both grounds the opposite party No. 1 dismissed the appeals.
5. Two main questions have been canvassed here. The first is that only a holder of any permit granted in the State can apply for grant of endorsement thereon that the vehicle to which the permit relates is an All India Tourist Vehicle and, as such, it was beyond the jurisdiction of the S. T. A. to entertain applications made in response to Annexure-1 when none of the applicants was a holder of a permit as indicated above. Unless the procedure and the conditions envisaged in Rule 3 of the Rules are complied with, it would be beyond the power and jurisdiction of the S.T.A. to make any order granting endorsement or granting All India Tourist permit as per Annexure-2. The second is, as alleged by the counsel for the opposite parties, that no appeal having been preferred to the appellate authority specified by the State Government as required under Rule 3 Sub-rule (8) of the Rules, the writ applications are not maintainable as the alternative remedy has not been availed of. This necessarily involves the question whether appeal to the Tribunal was maintainable.
6. We will now take up the first question mooted. Under Section 63 (7) of the Act any State Transport Authority is authorised to grant in respect of tourist vehicles such number of permits valid for the whole or any part of India as the Central Government may, in respect of that State, specify in this behalf and the provisions of Ss. 49, 50, 51, 57, 58, 59, 59 -A, 60, 61 and 64 shall apply as far as may be, in relation to such permits. This power is subject to the rules made under the Act. There is no controversy in this case that the Central Government has specified the number of permits which the State Transport Authority of Orissa State could grant. By Annexure-1 opposite party No. 2 invited applications ‘for endorsement in the permit of motor cabs or omnibus authorising it to ply as an All India Tourist Vehicles.’ It also specified certain conditions which the applicant must fulfil in respect of the vehicle in respect of which All India Tourist permit is applied for. On receipt of applications for grant of permits in respect of tourist vehicles, the S.T.A. was bound to follow the procedure laid down in Rule 3 of the Rules, the relevant portions whereof are extracted herein-below:–
“Endorsement on permits of vehicles, 3. (1) The State Transport Authority may, in accordance with the provisions of this rule, make an endorsement on any permit granted in the State in relation to any motor cab or omnibus to the effect that the vehicle to which the permit relates is an All-India Tourist Vehicle:
Provided that at no time shall the total number of-
(i) Motor cabs in respect of which such endorsements are in force shall exceed fifty; and
(ii) Omnibuses in respect of which such endorsements are in force shall exceed ten.
(2) Any person who holds a permit issued in the State in relation to a motor cab or an omnibus may apply in the forms specified in Schedule I, to the State Transport Authority for an endorsement on the permit to the effect that the vehicle to which the permit relates is a tourist vehicle.
(3) Any application under Sub-rule (2) shall be accompanied by a fee of Re. 1 in shape of special adhesive stamp and shall be made not less than six weeks before the date on which it is desired that the endorsement shall take effect or, if the State Transport Authority appoints a date for the receipt of such applications, on such date,
(4) On receipt of an application under Sub-rule (2) the State Transport
Authority shall make the application available for inspection at the office of the Authority and shall publish the application or the substance thereof in the official Gazette, office notice board as well as in the notice board of Regional Transport Authority together with a notice of the date which will be not less than 15 days before which representations in connection therewith may be submitted by-
(i) any person who holds a permit on which an endorsement has been made under this rule;
(ii) any local or police authority in the State, and the date, not being less than thirty days from such publication on or after which the application and any representation received will be considered :
Provided that if the making of any endorsement in accordance with the application would have the effect of increasing the number of vehicles bearing such endorsements beyond the limits fixed in that behalf under the proviso to Sub-rule (1) or if the vehicle in respect of which the application is made is registered more than one year before the date of the application or at the time of renewal of endorsement of the vehicle is 5 years old or has done 150,000 miles the State Transport Authority may summarily reject the application without following the procedure laid down in this rule.
xxxxx xxxxx”
Rule 2 (a) defines “permit” as a permit issued under Section 51 of the Act and Rule 2 (b) defines “Schedule” as the schedule annexed to the Rules. Schedule I runs as follows :–
“Application for the grant of endorsement on the permit of a motor cab omnibus for country wide operating under the Orissa Tourist Vehicles Rules, 1967. I/We the undersigned apply for endorsement on the following permit for a country wide operation:–
1. Description of the permit
2. (i) Number of permit and the date of issue.
(ii) Date of expiry (iii) Particulars of vehicle(s) 1. Make of the vehicle 2. Year of manufacture 3. (a) Year of the registration (b) Registration No. XX XX X 13. Date of grant of permit 14. Date of the grant of endorsement 15. Date on which the permit or the endorsement will expire. 3. xx xx xx xx 4. xx xx xx xx To be filled in the office of the Transport Authority 1. Date of receipt 2. Date of publication 3. Date or dates of hearing of objections 4. Granted subject to the...... Tourist Vehicles Rules, 1967, XX XX XX XX XX XX XX XX"
It is clear from the aforesaid provisions of the Rules and Schedule-I that a holder of a permit issued in the State in relation to a motor cab or an omnibus is only competent to apply to the State Transport Authority for endorsement on that permit to the effect that the vehicle to which the permit relates is a tourist vehicle. The application must be in the form set out in Schedule I which means that the applicant must disclose on the application the description of his permit, the number and date of issue of such permit and other particulars which leave no doubt in mind that he must hold a permit on the date of making an application, otherwise the application will be invalid and not entertainable at all. It is further clear that application validly made in the form prescribed in Schedule I shall be made not less than six weeks before the date on which it is desired that the endorsement shall take effect, or if the State Transport Authority appoints a date for the receipt of such application on such date. The date of receipt appointed by the S. T. A. in Annexure-1 being 30-7-1974, all applications must be made at the latest on such date. After receiving the applications, the S. T. A. shall make them available for inspection at its office and shall publish these applications or the substances thereof in the official Gazette, office notice board as well as in the notice board of Regional Transport Authority together with a notice of the date which will be not less than 15 days before which representations in connection therewith may be submitted. In the instant case, applications, though in form as prescribed in Schedule I, were incomplete because many of their columns were left blank, obviously because none of the applicants held any permit granted under Section 51 of the Act on which endorsements as envisaged in Rule 3(1) of the Rules were sought for, thus, as no proper applications in form of Schedule I were received by the S. T. A. on or before 30-;7-1974, it could not act on the same. Further, it is not in controversy that the applications were not notified and processed in accordance with the requirements of Sub-rules (2), (3) and (4) of Rule 3 of the Rules. Thus, the S. T. A. acted wholly without jurisdiction in entertaining incomplete applications from persons who did not hold any permit and proceeding to grant anticipatory endorsements on permits yet to come into existence, and that again without complying with the mandatory requirements of Rule 3 (2), (3) and (4) of the Rules. This contention of the petitioners, to our mind, is well founded and Annexure-2 is liable, on this ground alone, to be quashed.
7. The second question is whether appeal from the decision of the S.T.A. lay to the State Transport Appellate Tribunal or to the State Government as provided for in Rule 3 (8) of the Rules, The impugned order of the S.T.A. comes under the purview of either Section 64 (1) (a) or 64 (1) (i) of the Act. Therefore, appeal from such an order lay to the State Transport Appellate Tribunal constituted under Sub-section (2) of that section. Rule 3 (8) of the Rules, however, provides for an appeal to the appellate authority to be specified by the State Government, within 14 days of receiving the order of S.T.A. There is, therefore, apparent contradiction between the statutory provision contained in Section 64 of the Act and the provisions of the Rules in the matter of the appellate forum. Section 64 of the Act, before its amendment by Central Act 56 of 1968, provided that any person aggrieved may appeal to the prescribed authority. The prescribed appellate authority was the Minister in charge of Transport Department of the State Government as indicated in Rules 78, 78-A and 79 of the Orissa Motor Vehicles Rules, 1940. Rule 3 (8) of the Rules which was framed in the year 1967 was in consonance with Section 64 (1) of the Act as it stood then, which provided that the appellate forum shall be as specified by the State Government.
By amendment of Section 64 in 1969, Sub-section (2) was incorporated. This amended provision laid down that “the State Government shall constitute for the State a State Transport Appellate Tribunal which shall consist of a whole-time judicial officer not below the rank of a District Judge.” In accordance with this amended provision, State Transport Appellate Tribunal was constituted for the State of Orissa. It is clear, therefore, that according to the amended provision all appeals from the orders of the S. T. A. coming within the purview of Clause (a) or (i) of Sub-section (1) of Section 64 of the Act lay to the State Transport Appellate Tribunal, except appeals which were pending at the commencement of such amendment. While the statute was amended, the Rules did not undergo corresponding amendment to bring it in accord with the statute. There has, therefore, arisen a repugnancy between the statutory provision and the rules, namely, Rule 78, 78-A and 79 of the Orissa Motor Vehicles Rules, 1940 and Rule 3 (8) of the Rules. In face of this repugnancy, according to well established principle, the statutory provision must prevail. Therefore, appeals were properly preferred before the State Transport Appellate Tribunal. It was wrong for the Tribunal to hold that appeals to him were incompetent.
Looking from another angle, Sub-rule (8) of Rule 3 of the Rules does not designate the appellate authority, but provides that the State Government is to specify the appellate authority which may vary from occasion to occasion and from cases to cases as the State Government may deem fit. Since the State Government had not specified in the instant case the appellate authority within 14 days of receipt of the order of the S.T.A., and since the power to specify has apparently been taken away by the amendment of Section 64 (2) of the Act, there was neither any appellate forum in existence nor any possibility of any such forum coming into existence under the aforesaid sub-rule before which appeal could have been preferred. In the circumstances to avoid repugnancy, the State Transport Appellate Tribunal constituted under Section 64 (2) of the Act shall be read in place of the expression ‘appellate authority to be specified by the State Government’ in Sub-rule (8) of Rule 3 of the Rules.
8. Counsel for opposite parties and the Standing Counsel (Transport) argued that the S. T. A. has suo motu jurisdiction to deal with applications for all Orissa Contract Carriage permits and grant such permits, even without applications being called therefor. The S.T.A. only called for applications as envisaged under the Rules as per Annexure-1. But since both types of applications, one for contract carriage permits and the other for All India Tourist permits, have procedures laid down in respect of them which are separate and independent, the S.T.A. could deal with both types of applications by taking two independent steps, one under the Act and the other under the Rules. The S.T.A. instead of adopting independent proceedings and passing independent orders has passed a composite order in the interest of public which is of paramount importance. Annexure-2 cannot, therefore, be entirely quashed. Secondly, it is contended, basing on Section 134 (2) of the Act that the order of the S. T. A. shall not be reversed or altered on account of any error, omission or irregularity in the proceedings unless such error, omission or irregularity has, in fact, occasioned a failure of justice.
The order of the S. T. A. Annexure-2, is not a composite order. It expressly and specifically deals with the matter as if the applications were made under the Rules for grant of an endorsement on the permit of a motor vehicle to the effect that the vehicle is an All India Tourist Vehicle. It does not deal with applications for State Contract Carriage permits at all. The subject-matter of that order is indicated in the following words :–
"..... selection of operators for All-India Tourist Vehicles." After considering the cases of individual applicants, the S.T. A. observed :-- "The S.T.A. considered that for promotion of tourism all over the State preference should be given to the districts which have not been allotted any All India Tourist Omnibus with seating capacity of more than 29 or so." Then it is observed :-- "The S.T.A., therefore decided to grant permits for All India Tourist Omnibus with seating capacity more than 29"
in favour of particular applicants. Then in the penultimate paragraph of the order it proceeds to say that such grant of permits is subject to the vehicles being produced later on according to plan and specification approved by the Chairman. The contention that the impugned order of the S. T. A. is a composite order cannot be countenanced.
It is true that Section 134 (2) of the Act provides that no order made by the competent authority under the Act shall be reversed or altered on account of any error, omission or irregularity in the proceedings, unless such irregularity, error or omission has occasioned a failure of justice. This provision does not purport to save orders passed by authorities which lack initial jurisdiction. In the present cases, as already pointed out, the S. T. A. acted wholly without jurisdiction in the matter of granting All India Tourist permit by entertaining incomplete applications not in accordance with Schedule I, which were invalid documents, and without processing the same in accordance with the mandatory provisions of Sub-rule (4) of Rule 3 of the Rules, which resulted also in infringement to rights of third parties conferred under that sub-rule. In view of these aspects, Section 134 (2) of the Act has no application at all and the impugned order of the S. T. A. cannot be saved pursuant to it.
9. A point was taken that these writ applications shall not be entertained in view of Article 226(3) of the Constitution of India. This provision lays down that no petition for the redress of any injury referred to in Sub-clause (b) or (c) of Clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force. This point was urged on the hypothesis that appeal lay to the State Government from the order of the S. T. A. and such forum of appeal not having been availed of, the writ applications must be held to be non-entertainable in view of the constitutional provision referred to above. As held earlier, the appeal lay to the State Transport Appellate Tribunal and that forum of appeal has been exhausted. The bar envisaged under Article 226(3), in these circumstances, cannot be invoked. This contention is, therefore, not well founded.
10. In result, these writ applications are allowed. Annexure-2 and the order of the State Transport Appellate Tribunal in Annexure-4 in O. J. C. Nos. 381 and 382 of 1976 and Annexure-6 in O. J. C. No. 881 of 1976 are quashed and, consequentially, Annexure-3 is also quashed. The petitioners are entitled to costs assessed at Rs. 200/-(Rupees two hundred) in each writ application.
Writ petitions are allowed with costs.
J.K. Mohanty, J.
I agree.
