A person who is not the holder of a stage carriage permit and who did not object to the variation of the conditions of the permit cannot appeal against an order of the Regional Transport Authority varying the timings of the permit under S. 64 (b) or (f) of the Motor Vehicles Act.

GOPAL KRISHNAN NAIR, J.

( 1 ) THE petitioner seeks a writ of prohibition to prevent the Deputy Transport Commissioner, Kakinada from proceeding with an appeal filed before him by the 3rd respondent. The petitioner is the holder of a stage carriage permit for the route Sompeta-Srikakulam. The 3rd respondent has a permit to ply a stage carriage from Jagati to Tekkali Via Sompeta. A stretch of miles is common to both these routes. The petitioner applied to the Regional Transport Authority, Srikakulam, for variation of the timings prescribed for the plying of his bus. That was allowed, in spite of the objections raised by the 3rd respondent. The 3rd respondent thereupon moved the Deputy Transport Commissioner, Kakinada, in appeal. This appeal was entertained and an interim order suspending the operation of the order of the Regional Transport Authority was passed. The petitioners case is that no appeal lies under S. 64 of the Motor Vehicles Act (herein-after referred to as the Act) against the order passed by the Regional Transport Authority in the instant case. The Deputy Transport Commissioner had therefore no authority or jurisdiction to entertain the appeal. He has, therefore, to be prohibited from proceeding with it. These contentions are countered by the learned counsel for the 3rd respondent on the ground that the appeal is competent under S. 64 (b) or 64 (f) of the Act. This is the main controversy between the opposing parties in this writ petition. (2) Section 64 (b) of the Act gives a right of appeal to a person"aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof". Clause (f) of the same section confers a right of appeal on a person who having opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto". In a letter Patent Appeal preferred from the decision of Subba Rao, J. (as he then was), a Division Bench of the Madras High Court consisting of Rajamannar, C. J. and Venkatarama Ayyar, J. in Kali Mudaliar v. Vedachala Mudaliar, 1952-1 Mad LJ 152 at p. 155 : (AIR 1952 Mad 545 at p. 548) had to deal with the scope of S. 64 (b) of the Act. The have observed as follows :"even if the timing can be said to be a condition attached to a permit, we do not agree with the learned Judge that the respondent could be treated as a person aggrieved by the variation of the conditions of the permit within the meaning of clause (b) of S. 64. The expression "the permit" in that clause must obviously refer to the permit mentioned in cl. (a ). That permit is a permit granted to any person by the Transport Authority. We think the proper construction of that clause is to confine its application to persons aggrieved by the revocation or suspension of the permits granted to them or aggrieved by any variation of the conditions of such permits granted to them. That clause does not confer a right on one person to appeal against an order varying the condition of a permit granted to another person. "the learned counsel for the 3rd respondent has strenuously contended that the above opinion was expressed obiter by Rajamannar, C. J. who delivered the judgment of the Division Bench. I am not able to agree with this contention. The question whether an appeal lay under S. 64 (b) of the Act was one of the material points raised before Subba Rao, J. who disposed of the writ petition and also before the Division Bench, which disposed of the Letters Patent Appeal. It is beyond the pale of possible doubt that the determination of the question whether a right of appeal was conferred in that case by S. 64 (b) of the Act was very relevant. No doubt the Division Bench elaborately dealt with the question whether a change of timings was a variation of the condition of a stage carriage permit. They came to the conclusion that it was not. But they did not choose to base their decision solely on this conclusion. They proceeded to consider the merits of the appeal on the basis that

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