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1967 Supreme(MP) 91
High Court of Madhya Pradesh
P.V. Dixit, C.J. & R.J. Bhave, J.
Mohanlal
Vs.
State Transport Authority & other
M.P. No. 396 of 1966
Decided on : 3.10.1967
R.K. Tankha for petitioner;
V.S. Dabir for respondent No. 3
Headnote:(1) Motor Vehicles Act, 1939 - Ss. 64 & 64-A - party filing an application – such application published in the Gazette - permit granted to another party without noticing the other party on the basis that there was only one application - party not noticed is not a party to the proceedings - grant of permit to another did not amount to rejection of the application - remedy of such party is not appeal but revision.
One of the parties applied for a permit and his application was also published in the Gazette. The Regional Transport (Authority without considering this application and without even noticing the party granted permit to another person on the ground that there was only on application. The other party filed a revision petition before the State Transport Authority which granted it. It was contended that the State Transport Authority acted without jurisdiction as no revision was tenable. The party aggrieved should have preferred an appeal, as the grant of permit to the other party amounted to rejection of the petition of the other.
Held: Though the third respondent had filed an application and though it was published in the Gazette the third respondent was not noticed about the hearing of the application of the petitioner. It cannot, therefore, be said that the third respondent was a party to the proceedings and that the grant of the permit in favour of the petitioner could amount to rejection of the application of the third respondent. The order of the Regional Transport Authority itself makes it clear that the grant in favour of the petitioner was made on the ground that there was no other applicant. As the third respondent was not a party to the proceedings, in which the grant was made in favour of the petitioner his only remedy was to file a revision petition before the State Transport Authority. AIR 1959 SC 85 referred to. [Para 5]
(2) Motor Vehicles Act. 1939 - Ss.57, 58 and 47 - renewal application filed time barred -applications for vacancy created - each application is flat a separate case and cannot be considered alone without considering other pending applications for the same route - fresh applications should not be invited and all the pending applications should be considered.
It was contended on behalf of one of the petitioner's that when the application of the previous operator was rejected as time barred a vacancy was created and the application of the petitioner could be treated as an application for grant of a permit in the vacancy caused, the Regional Transport Authority need not have waited for other pending application to become ripe for consideration. Decision of the Supreme Court given in C.A. No. 762 of 1963 was relied on for this contention.
Held: Their Lordships of the Supreme Court were not prepared to go so far as to say that when more than one applications are made for the grant of a perm it on the same route, the Transport Authority is entitled to dispose of each application as and when it becomes ripe. The proviso under section 47 (1) clearly indicates that the Regional Transport Authority is required to consider the relative merits of all the applicants for a route and the person best suited is to be given the permit preference being given to the registered societies; if other things are equal. This is much more so if because of the ceiling order only one permit or limited permits can be granted.
What the Supreme Court laid down is that the Transport Authority, while considering the question of adequacy of other passenger transport services operating or likely to operate in the near future on the route, that is to say, while considering the scope, need not defer the decision on the application for the route on the ground that other applications, which may have some bearing on that subject, are pending. [Para 6]
While the Regional Transport Authority was bound to consider all the applications pending for the same route, it cannot be directed to invite fresh applications for the same route. [Para 7]
(3) Motor Vehicles Act 1939 – S. 46 - agent filing application - power of attorney not filed with the application - counsel of the applicant not in a position to state whether the agent held the power and why the power of attorney was not filed - the fact of existence of tile power of attorney should be enquired before the application is dismissed on this ground.
(4) Practice - application by agent - power of attorney not filed with application -application cannot be rejected as unauthorised without considering the question whether the power in fact exists or not.
Where an application for a permit is filed by an agent without filing the power with the application, and the counsel for the applicant was not in a position to state why the power was not filed, the Authority could not reach the conclusion that the application was detective without applying its mind in the question whether the agent did or did not in fact hold a power of attorney from the applicant. Merely because the counsel for the applicant was unable to say whether the agent held any power of attorney from the applicant and could not explain as to why a power was not filed along with the application, the Authority could not reach the conclusion that the application had been filed by an unauthorised person. [Para 8]
Bhave, J.
1. Along with this petition, Miscellaneous Petition No. 482 of 1966 is disposed of, as common questions are raised.
2. The facts of the case are that a stage carriage permit on Burhanpur Dedtalai route was held by M/S Tirathdas & Brothers. Tirathdas applied for renewal of the permit, though out of time. The petitioner Mohanlal filed an application on 8.2.1955 for grant of a fresh permit on the said route in lieu of the permit held by Tirathdas. The third respondent, Thakur Navalsingh (the petitioner in Misc. Petition No. 482 of 1966) also filed an application on 25-4-1965 for grant of a permit in the vacancy caused because of the failure of Tirathdas to apply in time. The application of the petitioner was published on 2.4.1965, while the application of the third respondent was published on 3-12-1965, after about eight months of the filing thereof. The Regional Transport Authority, Indore, took the application of Tirathdas alone for consideration on 14-10-1965, though the application of the petitioner, which was filed in lieu of the permit of Tirathdas, was ripe. The application of Tirathdas was dismissed on the ground that it was barred by time. After this, on 18-12-1965, the Regional Transport Authority considered the application of the petitioner and granted the permit to him on the ground that he was the only applicant. The Regional Transport Authority failed to take note that for that very route the third respondent had already filed an application which was also published on 3-12-1965 and was ripe for consideration, and that no notice was given to the third respondent when the application of the petitioner was considered. In these circumstances, the third respondent filed a revision petition before the State Transport Authority, Gwalior, Challenging the order of the Regional Transport Authority granting the permit to the petitioner.
3. The State Transport Authority, by its order dated 23-7-1966 set aside the grant in favour of the petitioner and remanded the cases to the Regional Transport Authority with a direction that fresh applications should be invited for the route in question and the permit should be granted on merits. The petitioner as well as the third respondent, being aggrieved by the order of the State Transport Authority, have filed Misc. Petition No. 396 of 1966 and Misc. Petition No. 482 of 1966 respectively.
4. The contention of the petitioner is that the State Transport Authority acted without Jurisdiction in setting aside the grant in favour of the petitioner, while the contention of the third respondent is that the State Transport Authority was in error directing the Regional Transport Authority to invite fresh applications. On this matter, the petitioner also joins with the third respondent.
5. Shri Tankha, learned counsel for the petitioner, urged that the proper remedy for the third respondent was to prefer an appeal against the order of the Regional Transport Authority, if he was of the view that he was also a co-applicant for the grant of a permit. He urged that the grant of permit to the petitioner amounted to rejection of the application of the third respondent and as such he should have preferred an appeal. Shri Tahkha relied on the decision of the Supreme Court in Ram Gopal Vs. Anant Prasad [AIR 1959 SC 851] wherein it was held that where there are two applications in respect of the same permit, one of which is by way of renewal and the other is a fresh application, and an order granting a renewal of the permit is made, the order amounts, in fact, to a refusal to grant the permit to the person making the fresh application and he would be a person aggrieved within clause (a) of section 64 of the Motor Vehicles Act; and the fact that an express order refusing the perm not made cannot operate to his prejudice. Though the third respondent baa filed an application and though it was published in the gazette, the third respondent was not noticed about the bearing of the application of the pe
