JUDGMENT
N.P. Singh, J.
1. The petitioners have questioned the power of the Regional Transport Authority (hereinafter referred to as ‘the Authority’) to entertain application,
filed suo motu, for grant of stage carriage permit, without inviting applications from others for grant of permit, on the route in question.
2. The Darbhanga Regional Transport Authority published a notice, in an issue of a daily newspaper saying that any objection filed within 30 days, against the application filed by Shri Krit Narain Jha, respondent 3 (hereinafter referred to as ‘the respondent’) for grant for permit on Lokha, Samastipur Via Khutaona, Madhubani, Darbhanga, Laheriasarai shall be considered by the Authority. According to the petitioners’ as the application was filed suo motu, for grant of a new permit, it was obligatory on the part of the Authority to issue an advertisement, inviting applications in respect of the grant of a permit on the route in question, instead of only inviting objection to the application filed on behalf of the aforesaid respondent.
3. Chapter IV of the Motor Vehicles Act (hereinafter referred to as ‘the Act’) contains different provisions regarding grant of permit by the Authority and also prescribes the procedure for the same. Section 47 of the Act prescribes the procedure to be followed by the Authority while considering an application for stage carriage permit. The relevant part of Sub-section (1) of Section 47 of the Act is as follows :
“47. Procedure of Regional Transport Authority in considering application for stage carriage permit. — (1) A Regional Transport Authority shall, in considering an application for a stage carriage permit, have regard to the following matters, namely : —
(a) the interests of the public generally;
(b) the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken;
…..”
4. The relevant parts of Section 48(1) are as follows:
“48. Grant of stage carriage permits : —
(1) Subject to the provisions of Section 47, a R.T.A. may, on an application made to it under Section 46, grant a stage carriage permit in
accordance with the application or with such modifications as it deems fit or refuse to grant such a permit:
…..”
5. The relevant part of Section 57 is as follows:
“57. Procedure in applying for an granting permits. — (1) An application for contract carriage permit or a private carrier’s permit may be made at any time.
(2) An application for a stage carriage permit or a public carriers permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, or, if the R.T.A. appoints dates for the receipts of such applications, on such dates.
(3) On receipt of an application for stage carriage permit or a public carrier’s permit, the R.T.A. shall make the application available for inspection at the office of the Authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date not being less than thirty days from such publication, on which, and the time and place at which, the application and any representations received will be considered :
…..”
In view of Section 57(2) of the Act, (i) an application for a stage carriage permit or a public carrier’s permit can be made suo motu not less than six weeks before the date on which it is desired that the permit shall take effect (ii) an application can be made pursuant to an advertisement by the Authority on or before the dates appointed by the Authority for receipt of such applications. On receipt of such applications for stage carriage permits, the Authority has to publish the applications or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted as required by sub-section (3) of Section 57.
6. The procedure for renewal is provided under Section 58 of the Act, the relevant part whereof is as follows :
“58. Duration and renewal of permits. –
(2) A permit may be renewed on an
application made and disposed of as if it were
an application for a permit :
Provided that the application for the renewal of a permit shall be made-
(a) in the case of a stage carriage permit or a public carrier’s permit, not less than one hundred and twenty days before the date of its expiry; and
(b) in any other case, not less than sixty days before the date of its expiry :
Provided further that, other conditions being equal, an application for renewal shall be given preference over new applications for permits.
…..”
In view of Sub-section (2) of Section 58, a permit may be renewed on an application being made which has to be disposed of as if it were an application for a permit. But that very sub-
section also says that other conditions being equal, an application for renewal shall be
given preference over new applications for
permit, The other procedure prescribed for such renewal which is different from the grant of new permit is that for renewal an
application has to be made not less than one hundred and twenty days before the date of its expiry.
7. Leaving aside the grant of temporary
permits under Section 62, permits are granted under three situations : (i) when a new route is notified, (ii) when more buses are required
on existing routes (iii) when the period of the permit has expired. None of the provisions of the Act says in clear and unambigous words that before a permit is renewed or a new permit on an existing route or a permit for a
new route is granted, applications must be invited through advertisement giving opportunities to all. Sub-section (2) of Section 57 of the Act simply says that if the Authority
appoints dates for the receipt of such applications for grant of stage carriage permit should be filed on such dates.
8. Now the question with which we are concerned, in the present application, is as to whether it is incumbent on the part of the Authority to invite applications through
advertisement while granting a new permit or renewing an existing permit. It is true that Section 57(2) speaks about application being filed suo motu as well as about inviting application by the authority. But if the power to grant permit, on an application filed suo motu is conceded to the Authority, then a person having come to know about the opening of a new route or the decision of the Authority to grant one more permit on an existing route can quietly make an application suo motu which has to be considered on the basis of the objection filed in respect of that application without affording opportunity to others to apply for the same. At the same time if it is held that whenever an application for a stage carriage permit is made suo motu, application has to be invited through proper advertisement, then the provision regarding filing of an application for grant of permits suo motu shall be virtually redundant. As such the scope of Sub-section (2) of Section 57 of the Act has to be examined in context of different provisions of the Act itself for the purpose of laying down a procedure which should not be only consistent with the provisions of the Act but should also be not violative of Article 14 of the Constitution.
9. Sub-section (2) of Section 57 of the Act enables an applicant to file an application of his own without an advertisement. Such application has to be made “not less than six weeks before the date on which it is desired that the permit shall take effect”. In my view, this part of Sub-section (2) is applicable more in cases of renewal when competitive applications are filed on the eve of expiry of an existing permit. The operators generally know the dates on which existing permits are to expire and the question of renewal is to be considered. Perhaps, that is the reason why Sub-section (2) of Section 58 requires the holder of the permit, seeking renewal, to apply not less than one hundred and twenty days before the date of its expiry, but the persons intending to file competitive applications have to make the same not less than six weeks from the date the renewal is to take effect, in view of Sub-section (2) of Section 57. When the proviso to Sub-section (2) of Section 58 says that other conditions being equal an application for renewal shall be given preference over new applicants for permits, it clearly conceives of competitive
applications which can be filed, in view of Sub-section (2) Section 57, even without advertisement within the time prescribed therein.
10. The real controversy is in respect of applications for grant of new permit in respect of existing route or grant of a permit on a new route. If a permit on existing or new route is granted merely on the basis of a suo motu application, there will be an inherent discrimination in that procedure, inasmuch as many persons who could provide better service to the public in general on such route are debarred from making applications for the same due to lack of proper information about the decision of the Authority to open a new route or to grant more permits on the existing routes. That procedure will leave much scope for manipulations in favour of person who through some agency secretly learns about the increase in number of permits or opening of a new route. Section 47(1) of the Act itself commands the Authority while considering the application for grant of permit to have regard to “the interest of the public generally” and “the advantages to the public of the service to be provided”.
11. In the case of R. Obliswami Naidu v. Addl. State Transport Appellate Tribunal, Madras, AIR 1969 SC 1130 it was examined as to whether the determination regarding the number of stage carriages required on a route should be done at a stage anterior to that of entertaining applications for stage carriage permits or it could be done at the time Authority considers the applications made by operators. In that case, the R.T.A. had proceeded on the basis that the said question can be decided while considering the applications made to it for permits by operators. The Appellate Tribunal and the High Court took a contrary view. In that situation, the Supreme Court pointed out as follows : —
“Sub-sec. (3) of Section 47 of the Act if read by itself does not throw any light on the controversy before us but if Sections 47 and 57 of the Act are read together it appears to us to be clear that the view taken by the Appellate Tribunal and the High Court i,s the correct view. If contrary view is taken it will throw open the door for manipulations and
nepotism. There may be possibility of the personality of the applicant influencing the decision of the R.T.A. on the question of need for a stage carriage permit in the route and thereby public interest which should be the main consideration while taking a decision under Section 47(3) may suffer. If we accept the view taken by the R.T.A. as correct, an operator who happens to apply for the route
first will be in a commanding position. The R.T.A. will have no opportunity to choose between competing operators and hence public interest might suffer.”
In the aforesaid case, it was pointed out that
if the view taken by the R.T.A. in that case,
was accepted, an operator who happens to
apply for the route first will be in a
commanding position and the Authority will
have no opportunity to choose between
competing operators because of which the
public interest might suffer. To an argument
suggesting that Sub-section (3) of Section 57 of the Act
is wide enough to allow the competing
operators to apply for the route in question
when the first application filed suo motu is
published and representations are called for,
it was said :
“We are unable to accept this contention. That sub-section merely permits representations to be made in respect of the application published. Such representations cannot take the form of competing applications. It is difficult to accept the contention that the word “representations” in Section 57(3) includes applications for the route. That apart if we accept Mr. Narasaraju’s contention then the whole thing will become unworkable. If at the time of making his representation an operator can also make an application for a stage carriage permit for that route, that application again will have to be published under Section 57(3) and objections called for. Extending the logic of Mr. Narasaraju’s argument as we ought to at the time of making representations to those applications, further applications can be made. This may turn out to be an unending chain.
On an examination of the relevant provisions of the Act and the purpose behind Sections 47 and 57, we are convinced that before
granting a stage carriage permit two independent steps have to be taken. Firstly there should be a determination by the R.T.A. under Section 47(3), of the number of stage carriages for which stage carriage permits may be granted in that route. Thereafter applications for stage carriage permits in that route should be entertained.”
12. Again, in the case of Mohd. Ibrahim v. State Transport Appellate Tribunal, Madras, AIR 1970 SC 1542, it was said :
“It is, therefore, established that the determination of limit of number of permits is to be made before the grant of permits. That is why Section 48 of the Act is prefaced with the words “subject to the provisions of Section 47 of the Act” meaning thereby that the jurisdiction of the R.T.A. to grant permits is subject to the determination of the limit of number of permits under Sections 47(3) of the Act.”
It was further pointed out, after referring to the judgment in the case of R. Obliswami Naidu v. Addl. State Transport Appellate Tribunal, Madras (AIR 1969 SC 1130) (supra), as follows :
“This Court did not accept the submission because such a view would allow an operator who happened to apply first to be in a commanding position with the result that the Regional Transport Authority would have no opportunity to choose between competing operators and public interest might suffer. In the same case it is again said that the determination of the number of stage carriages for which stage carriage permits may be granted for the route is to be done first and thereafter applications for permits are to be entertained.”
It was then observed, in that case, “when a
new route is opened for the first time and an
advertisement is issued calling for applications
for such new route specifying the number of
vacancies for it, it would be reasonable to
hold that the number of vehicles is specified
as the limit decided upon by the Regional
Transport Authority.”
13. In the case of Rattanlal Gupta v. Suraj Bhan, AIR 1974 SC 391, while reiterating the opinion expressed in the case of R. Obliswami Naidu v. Addl. State Transport Appellate
Tribunal, Madras, (AIR 1969 SC 1130) (supra), the Supreme Court approved the procedure adopted by the Regional Transport Authority in question by inviting applications for grant of permits inrespect of eight vacancies in the following words :
” It may be mentioned at this place that in the August meeting the RTA reduced the strength of shorter route from 25 to 9. That could not be done. In the result, there would remain eight vacancies on the shorter route for which the RTA had already invited applications. So the RTA could validly grant eight permits to the appellants in the third group. The ST A rightly affirmed this decision of the RTA.”
14. Mr. Justice R.S. Pathak (as he then was) speaking on behalf of a Full Bench in the case of Ajit Kumar Singh v. Regional Transport Authority, AIR 1972 All 169 pointed out that while proceeding under Section 47(3) of the Act is administrative in nature, “the proceeding under Section 57(3) bears a quasi-judicial character.” …..”Sub-section (3)
requires the Regional Transport Authority to fix a date, time and place at which the applications and representations will be considered and Sub-section (5) contemplates a public hearing at which the applicant and the person making the representation will have an opportunity of being heardeither in person or by a duly authorised representative”. After referring to the aforesaid judgment in the case of R. Obliswami Naidu v. Addl. State Transport Appellate Tribunal, Madras (AIR 1969 SC 1130) (supra) of the Supreme Court, it was reiterated that first the number of the stage carriage permits to be granted should be fixed and then the Authority should publish the dates for receipt of applications for grant of stage carriage permits.
15. A Bench of Andhra Pradesh High Court in the case of Ch. Vijayanarasimha Reddy v. Joint Transport Commr. and Secretary, State Transport Authority, Himayatnagar, Hyderabad, AIR 1985 Andh Pra 361, laid emphasis in respect of inviting of applications in the following words :
“We hold that the granting authority cannot grant permits on a bilater al basis and without inviting applications. Giving of public notice
of its satisfaction regarding the routes and the increased number of buses it proposes to put and inviting applications from all eligible is the irreducible minimum of procedure that should be observed by the authorities. All the applications should be considered together and disposed of together. It would be necessary for the applicants for temporary permits to know as to how many number of vehicles and on what draft notified routes the transport authorities propose to put extra buses. Unless the granting authority makes all these points known to the public as a whole it would not be possible to ensure equality of opportunity among the private operators without at the same time whittling down in any way the statutory priority given to the State transport undertaking. Any other method would be unfair to law and would be conductive of great mischief. To permit the State authorities granting temporary permits under Section 68F of the Act, to act in secrecy, cannot be in public interest nor can they be permitted to withhold information to some while granting access to such information to the others.”
16. In the case of Patiala Bus (Sirhind) Pvt. Ltd. v. State Transport Appellate Tribunal, Punjab, AIR 1974 SC 1174 it was pointed out that a Regional Transport Authority while considering the applications for grant of stage carriage permits is enjoined by Section 47 of the Act to have regard to the matters mentioned in Sub-section (1) of Section 47. In that connection it was observed :
“The main considerations required to be taken into account are the interest of the public in general and the advantages to the public of the service to be provided, and these would include inter alia consideration of factors such as the experience of the rival claimants, their past performance, the availability of stand by vehicles with them, their financial resources, the facility of well equipped workshop possessed by them etc.”
17. If the law requires the Authority while granting permit on the route in question to take into consideration the factors mentioned in Sub-section (1) of Section 47 of the Act, i.e. the interest of the public in general and the advantages to the public of the service to be provided which will include inter alia
consideration of factors such as the experience of the rival claimants, their past performance, the availability of stand-by vehicles and workshop and financial resources, I do not understand as to how the aforesaid factors can be considered in absence of competitive applications for the route in question. It cannot be disputed that competitive applications are possible only when the Authority informs the public in general through advertisement about the opening of a new route or grant of new permits on the
existing route. If the argument on behalf of the petitioners is accepted that as none of the
sections of the Act specifically requires the Authority to issue advertisement inviting applications before permits are granted on new routes or new permits are granted on existing routes, then, in my view, the conditions mentioned in Section 47(1) of the Act which have to be taken into consideration before grant of such permits cannot be fulfilled and the object of the Act shall be frustrated. It need not be pointed out that if for a new route or for grant of a new permit on existing route only suo motu application can be entertained and processed then there is hardly scope for any competition. It is no solace that even before granting of permit on the basis of such a suo motu application objections under Sub-section (3) of Section 57 of the Act have to be invited and considered, because such objections are limited to the application filed suo motu. Such objector cannot file an application for grant of permit at that stage. As such reading the different provisions of the Act in the light of the judicial pronouncements, referred to (sic)ve, it has to be held that Sub-section (2) of Section 5 enables any person to file an application suo motu for grant of permit even in respect of a new route or in respect of grant of a new permit on an existing route. But the Authority should not proceed to publish such an application inviting objection under Section 57(3). It should invite applications through advertisement giving out the details of the route and the number of permits to be granted. Thereafter all such applications including the application filed suo motu should beprocessed and considered in accordance with Sub-section (3) of Section 57 of the Act to eliminate discrimination or manipulation. If it is held that as there is no
specific requirement of inviting applications in respect of grant of a new permit in Section 57 of the Act, an application filed suo motu can alone be entertained, processed and considered in accordance with Sub-section (3) of Section 57, then, in my view, not only that procedure shall be hit by Article 14 of the Constitution, but even Sub-sections (2) and (3) of Section 57 itself will have to be declared as ultra vires being discriminatory in nature. It is a well-known rule of interpretation that Court should give interpretation to a provision which should be consistent with the provisions of the Constitution. As such, in my view, the requirement of inviting applications in respect of grant of new permit on an existing route or in respect of a new route has to be read under Sub-sections (2) and (3), so that the provisions aforesaid are held to be constitutionally valid.
18. On behalf of the respondent reference was made to an order passed by the Supreme Court in the case of Basant Roadways v. State Transport Appellate Tribunal, AIR 1987 SC 116. The Supreme Court, while deprecating the practice of granting of temporary permits, repeatedly observed :
“In all such cases the proper action to be taken by the Regional Transport Authorities is to grant regular permits in accordance with law either by inviting applications for grant of permits or on the applications made by intending operators suo motu under Section 57(2) of the Motor Vehicles Act, 1939.”
It was submitted that in view of aforesaid observation, it is for the Authority to decide whether to grant permit on applications filed suo motu or to invite applications for grant of permits. In other words, once an application has been filed suo motu that application only has to be entertained, processed and considered in accordance with Sub-section (3) of Section 57 without affording any opportunity to others to apply for the same. In my view, the Supreme Court never meant to lay down any such proposition in the order.
19. Reference was also made on behalf of the respondent to the case of R. Srihari Naidu v. Govt. of Andhra Pradesh, AIR 1985 SC 864 where it was observed that applications under Section 57(2) of the Act for grant of stage carriage permits could be filed voluntarily
and without any notification being issued in that behalf. In view of the specific language of Sub-section (2) of Section 57 of the Act, I have also pointed out above that an application for grant of permit can be made suo motu. But, in the aforesaid judgment, the Supreme Court did notsay that the Authority should proceed immediately to process only such application without affording others an opportunity to put their rival claims for the permit In question.
20. Reliance was also placed on behalf of the respondent on the case of Shrinivasa Reddy v. Suite of Mysore, AIR 1960 SC 350 in which the Supreme Court pointed out that in view of Section 57(2), an application for a stage carriage permit has to be made not less than six weeks before the date on which it is desired that the permit shall take effect or if the Regional Transport Authority appoints date for the receipt of such applications, on such date. In my view, the aforesaid judgment is no help on the question which has been raised in the present application.
21. Counsel for the respondent placed reliance on a Full Bench judgment of Karnataka High Court in the case of Revanappa Sangappa Motti v. Regional Transport Authority, Didar, AIR 1979 Kant 141. In that case it was said :
“A scrutiny of the provision of Section 47(3) read with Section 57(2) of the Act does not compel or justify the extreme view that a suo motu application for grant of permit filed before the determintion under Section 47(3), should be considered along with the applications to be received pursuant to a notification that may be issued under the latter part of Section 57(2). The schemes of these provisions do not seem to impose any such restriction on the R.T. A. It is open to the R.T.A. to adopt such a course; but the R.T.A. does not seem bound so to do. Indeed, issue of a notification inviting applications and consideration of the pending application along with the applications received pursuant to that notification may be
a very desirable course. As pointed out by the Supreme Court although in a different context — pertaining to the imperative requirement of a decision under Section 47(3) being independent of and anterior to a decision on the merits of the application under Section 48(1)
— that the operator who happens to apply for the route first will be in a commanding position, and the R.T.A. will have no opportunity to choose between the competing operators and hence public interest might suffer. (See AIR 1969 SC 1130, Paras 5, 6 and 7). Prudence and propriety and considerations of promotion of public interest might well require and persuade the R.T.A. that applications be invited and the pending application disposed of along with applications so received in response to notification inviting applications. But the question is whether a disposal of a pending application independently and not along with applications to be so received in response to the notification is, strictly speaking, illegal or without jurisdiction. There seems to be nothing in the language of Sections 47, 48, and 57 which compels such a view, however, salutary the result of that view might be.”
Even in this case the learned Judges were of the view that it was a desirable course to invite applications and then to consider the application filed suo motu along with the applications filed pursuant to the advertisement which procedure was also held to be more prudent and proper. In my view, once the Supreme Court, in the judgments referred to above, has held that first the Authority is to determine the limit of number of permits in exercise of the power under Section 47(3) before the grant of permits and has said in the case of Mohd. Ibrahim v. State Transport Appellate Tribunal, Madras, (AIR 1970 SC 1542) (supra) that “when a new route is opened for the first time and an advertisement is issued calling for applications for such a new route specifying the number of vacancies for it, it would be reasonable to hold that the number of vehicles is specified as the limit decided upon by the Regional Transport Authority” the Authority should invite applications through advertisement and consider the applications received along with the application filed suo motu.
22. On behalf of the respondent reliance was also placed on a Full Bench judgment of the Madhya Pradesh High Court in the case of Bipatlal Jaiswal v. Regional Transport Authority, Jabalpur, AIR 1973 Madh Pra209.
In that case, the question which fell for
consideration was as to whether it is open to
the R.T.A. after having advertised an
application in accordance with Sub-section (3)
of Section 57, to issue an advertisement inviting
fresh applications for that very route. It was
answered in negative saying that once an
application had been published, the R.T.A.
must proceed to consider it and cannot invite
fresh applications to be considered along with
such application. In my view, the aforesaid
view does not have much bearing on the
questions with which we are concerned in
this case.
23. Reliance was also placed on a Bench decision of the Orissa High Court in the case of Shiba Prasad Sahoo v. State Transport Authority, AIR 1970 Orissa 72. In that case, the petitioner had made two applications for grant of stage carriage permit to him on two routes in question. Thereafter the State Transport Authority decided to fill up the routes by inviting applications and advertisements in terms of Section 57 of the Act were published inviting applications from intending operators. While granting the permits the two applications filed on behalf of the petitioner of that case were not considered by the Transport Authority. In that connection it was pointed out that the Transport Authority was bound to dispose of the said applications and it was not open to the Transport Authority to ignore those applications merely because it had subsequently decided to call for applications in respect of those very routes. The operative portion of that judgment, however, supports the view taken by me. While allowing the application, direction was given in the following words :
“If, upon examination, the State Transport
Authority is satisfied that the said applications
are otherwise valid and are maintainable, the
said applications are bound to be notified
and disposed of in accordance with the
procedure prescribed under the Act along
with other applications for the two routes in
question.”
24. If the framers of the Act, even while considering the question of renewal of a permit under Section 58 of the Act made provision
for entertaining competitive applications from fresh applicants, I do not understand as to how it can be held that Sections 57(2) and (3) require that no sooner an application is filed suo motu in respect of a permit for a new route or for a new permit on an existing route such application has to be immediately processed in accordance with Sub-section (3) of Section 57 debarring others from filing applications for that route. Accordingly, it has to be held that even in a case where an application is filed suo motu in respect of grant of permit on a new route or for new permit in respect of existing route, the Authority has to invite applications from intending operators and has to process and consider all such applications including the one filed suo motu, in accordance with Sub-section (3) of Section 57 in the light of the requirement of Sub-section (1) of Section 47 of the Act. Any other procedure, in my opinion, shall not only frustrate the object mentioned in Sub-section (1) of Section 47 but shall also be violative of Article 14 of the Constitution. It need not be pointed out that the person who having come to know through some source about the decision of the Authority to grant a permit in respect of a new route or to grant a permit in respect of an existing route, does not form a separate class who should be given a special treatment ignoring other intending operators who may be prepared to offer better facilities to the public in general.
25. Accordingly, this writ application is allowed. The impugned notice inviting objections against the application filed suo motu by the respondent is quashed. The Authority is d irected to invite applications in respect of grant of the permit on the route in question and to consider all applications received pursuant to that advertisement along with the application filed suo motu by the respondent and to take a decision in respect of grant of permit in the light of Sub-section (1) of Section 47 and the decisions, referred to above.
S.N. Jha, J.
26. I agree.