The grant of a permit to operate a stage carriage is subject to the provisions of Section 47 (3) of the Motor Vehicles Act, which empowers the Regional Transport Authority to limit the number of stage carriages on a route. However, this provision is not applicable to cases where the RTA is filling up a vacancy rather than granting a new permit.

R. N. MISRA. J.

( 1 ) THIS is an application for a writ of certiorari directed against the appellate order of the State Transport Appellate Tribunal (opposite party No. 2 ).

( 2 ) ON the Sambalpur-Kuchinda road lying within the district of Sambal-pur under the jurisdiction of the Transport Authority (opposite party No. 3) a vacancy was caused on account of an old operator (Sri Purohit) ceasing to ply his vehicle. Steps were taken by the Transport Authority to fill up the vacancy and the petitioner was granted the permit. The opposite party No. 1 who was a competing applicant appealed to the Appellate authority (opposite party No. 2) against the rejection of his application. He mainly contended that the R. T. A. (opposite party No. 3) was bound to limit the number of stage carriages on the route before the permit could be granted. He also disputed the grounds provided by the Transport Authority for preferring the petitioner to him. The Appellate Authority was of the view that determination by the R. T. A. under section 47 (3) of the Motor Vehicles Act (Act IV of 1939) (hereafter referred to as the Act) of the limit was a condition precedent to grant of any permit and that having not been done, the grant of permit was illegal. He concluded the decision on the point by saying :

"from the above discussion of law and admitted facts it is clear that the omission on the part of the R. T. A. in prescribing the limit of number of stage carriages resulted in a failure of justice to the prejudice of the appellant. The right to obtain a stage carriage permit is a right created by the M. V. Act which also prescribes the procedure regulating, the grant of such permits. The right must therefore be determined in accordance with the provisions contained in the Act and the Rules made under it. Since admittedly the M. V. Act it must be held that it had no jurisdiction to consider the applications and grant the impugned permit to respondent No. 2 (sic ). It has to be therefore concluded that the impugned order granting the permit to respondent No. 2 was illegal and contrary to law. . . . . "

Next, coming to the question of preference, the Appellate Authority stated'--

"it has been contended by the learned counsel for respondent No. 2 that the appellant had no spare bus on which ground the permit was refused to him. In this connection the learned Counsel for the appellant has drawn my attention to AIR 1960 Mys 33, where it has been held that neither the Act nor the rules require that in order to be eligible to apply for a permit the applicant should possess a vehicle on the date of his application for a permit. This provides sufficient answer to the respondent's contention that the appellant had no spare bus. Further, roadworthiness is the criterion but not the latest model. In AIR 1956 Raj 142 (FB) it has been pointed out that the R. T. A. shall have regard to the effect upon existing services of the applicants. Public interest must be the paramount consideration. One should not be carried away by the latest model of the vehicle. The long experience of the operator and his sector qualification and his acts of sincerity should be given due weight in considering the applications. It has been pointed out in AIR 1956 andh Pra 217. that the reason in awarding a permit in favour of one operator that he is ,a resident of a place which is on the route is relevant. Looking from any angle, the appellant has better sector qualifications than the respondent No. 2 and as such this point has to be decided in favour of the appellant and against the respondent. "

It appears that the petitioner had been permitted to ply his vehicle during the pendency of the appeal and he had been depositing at the rate of Rs. 30/- per day with the Chairman of the Regional Transport Authority under orders of the Tribunal in order that the opposite party No. 1 in the event of his success in the appeal may be compensated. With a view to compensating the opposite party No. 1, the tr