(1.)THE present writ petition under Art. 226 of the Constitution is by one Sohan Singh who was an applicant for grant of a permit on an interstitial route Jhalawar to Pirawa via Soyat and by it he questions the validity of a resolution of the Regional Transport Authority, Kota passed at its meeting held on 10th/ 11th January, 1967 (Ex-1 on the record) by which a permit over this route was ordered to be granted to respondent No. 2 Umerdaraz for the portion Patan-Pirawa via Soyat in respect of his Vehicle No. RJR 4317. He prays for an appropriate writ, order or direction against the respondents. THE relevant facts emerging from the writ petition are briefly these:
(2.)THE route Jhalawar-Pirawa via Soyat is an 'a' class route which is 40 miles in length. Jhalawar is in Rajasthan and so is Pirawa, but route passes through Madhya Pradesh territory for about 7 miles and the town in Madhya Pradesh that is embraced by it is Soyat. It is thus an interstatal route. THEre was a reciprocity arrangement between the State of Rajasthan and the State of Madhya Pradesh and the number of trips to be provided by the two States was 2:2. This was the reciprocity till 1963, but it was later on revised to 4:4, that is, each State was to provide buses which would be having 4 single trips on each day. On Rajasthan side prior to revision of reciprocity there was one permit held by Messrs Jhalawar Transport Service and the bus owners of the permit holder used to perform 2 single trips per day. With the revision of the reciprocity arrangement the necessity of granting an additional permit arose. Petitioner's case is that he applied for grant of a permit on this route and his application was published by the Regional Transport Authority for inviting objections by its resolution dated 6-11-63. THE applications of (1) Radhey Shyam Banwarilal, (2) Ramanlal Chunnilal and (3) respondent Umerdaraz were also published on the same day as that of the petitioner. Prior to this four other applicants, that is, (1) Bapatali (2), Messrs Poddar Brothers (3), Masand Transport Company and (4) Shukla Transport Company had also applied for grant of permits and their applications too were published vide Regional Transport Authority's resolution dated llth/12th September, 1963. Against these applications respondent No. 3 Jhalawar Transport Service, being an existing operator, filed objections. In the notifications publishing the new applications it was said by the Regional Transport Authority, that the time, date and place of the meeting of the Regional Transport Authority, in which these applications along with the objections would be considered, would be notified later on. Petitioner proceeds to say that although he was awaiting such a notification for the holding of the meeting of the Regional Transport Authority, he was surprised to find on or about 25-1-67 that the Regional Transport Authority, Kota had granted a permit to respondent No. 2 Umerdaraz on the route in question. THEreafter the petitioner started making enquiries from the Regional Transport Authority's office and, according to him, he was informed that the Regional Transport Authority had considered the case for grant of permits on the Jhalawar, Soyat route in its meeting held on 10th/11th January, 1967. Coming to know of this the petitioner applied for a copy of the resolution of the Regional Transport Authority on 30-1-67 and he obtained the copy on 4-8-67 and then presented the present writ petition on 10-8-67.
In challenging the validity of the aforesaid resolution of the Regional Transport Authority it was contended by the petitioner that the Regional Transport Authority did not consider the application of the petitioner and, according to him, it was still pending and consequently the resolution of the Regional Transport Authority stands vitiated as the Regional Transport Authority was duty bound to consider all the pending applications together and in the circumstances could not have granted a permit to respondent No. 2 Umerdaraz. It was submitted in the alternative that even if the application of the petitioner could be said to have been disposed of by the aforesaid resolution, the resolution was bad on account of various reasons. It was pointed out that the agenda for the meeting had not been notified by the Regional Transport Authority as required by sec. 57 of the Motor Vehicles Act, 1939, hereinafter to be referred as the "act", with the result that the applicant could not come to know of the meeting and this resulted in denial of hearing to the petitioner. It was next urged that this also involved violation of the principles of natural justice. Thirdly, it was urged in this behalf that no reasons whatsoever have been recorded in the impugned resolution for refusing the application of the petitioner and, therefore, the resolution was bad. It was maintained that the Regional Transport Authority being required to deal with the matter quasi judicially was under a duty both by virtue of the provisions of the statute and in accordance with the established principles to give reasons to justify the refusal of the application of the petitioner. It lastly contended that the Regional Transport Authority had granted a permit to respondent Umerdaraz in respect of a vehicle which was of a model older than the prescribed model for an 'a' class route.
The writ petition has been opposed by respondent Umerdaraz. It was inter alia averred by the respondent that the Regional Transport Authority had published a notice in the Rajasthan Rajpatra dated 27-10-66 mentioning therein that the application of Messrs Sharma Transport for the route in question would be taken up for consideration at the meeting to be held on 24th/25th November, 1966 and when this respondent as also the other applicants including the petitioner, whose applications were not set down for hearing in the agenda, came to know of it, then they met at Kota sometime before the meeting. At that meeting, according to the respondent, one Pyare Singh who was the attorney of the petitioner was present and they all decided to contact the Secretary of the RTA and eventually they met the Secretary and requested him to consider all the applications for the route in question simultaneously. When they so met the Secretary the latter assured them that all the applications would be simultaneously taken up for consideration and the application of Messrs Sharma Transport alone would not be considered. Though this meeting was to be held on 24th/25th November, 1966, it had to be postponed on account of the illness of the then Chairman of the Regional Transport Authority and the same was adjourned to 10th/l1th January, 1967. This respondent maintains that all such applicants who were interested in pursuing their applications on the route were present before the Regional Transport Authority but the attorney of the petitioner Shri Payare Singh did not choose to appear inspite of his being aware of such a meeting. It is thus suggested by him that the petitioner was not interested in pursuing his application. The respondent further states that all the applications were simultaneously considered by the Regional Transport Authority and the Regional Transport Authority eventually decided to grant a permit to respondent No. 2. In other words, the stand of the respondent is that the application of the petitioner was decided by the Regional Transport Authority and it was not pending. Then by way of preliminary objections it was urged by the respondent that the petitioner had a right of appeal against the impugned resolution of the Regional Transport Authority and, as he had not availed of the statutory remedy of an appeal, he should not be heard by this Court in exercise of its extraordinary jurisdiction under Art. 226 of the Constitution. It was next urged by way of preliminary objection that even though the petitioner had come to know of the grant of permit to respondent No. 2, on his own showing on 25-1-67, he had filed the present writ petition after a good deal of delay on 10-8-67 and on that account also the petitioner should not be heard. As regards the model condition of the vehicle, the stand of the respondent is that the Regional Transport Authority had not imposed any such condition regarding a particular model and the matter lay within the discretion of the Regional Transport Authority.
It will be seen from the above narration of events that the first question that calls for consideration is whether on a proper construction of the resolution of the Regional Transport Authority it can be predicated that the application of the petitioner was still pending and has not been disposed of. If this question is answered in the affirmative, then there can be no serious dispute about the invalidity of the resolution of the Regional Transport Authority, as it is well settled, by a series of decisions of this Court, to which I need not refer as the position is not disputed by learned counsel for the respondent, that it was not open to the Regional Transport Authority to take up only one or more pending applications for grant of a permit on the route leaving out others and then deal with and dispose of only some out of such pending applications. In that event the position is not controverted by learned counsel that the aforesaid resolution of the Regional Transport Authority would be bad. As already observed, learned counsel for the respondent maintains that on a proper construction of the impugned resolution of the Regional Transport Authority it cannot be predicated that the application of the petitioner is still pending and has not been disposed of by the impugned resolution. On the other hand, if the question is answered in the negative, then the next question that would crop up for consideration is whether the petitioner could and should have filed an appeal against the resolution before the Transport Appellate Tribunal and whether in the circumstances of the case his having not done so this Court should exercise its discretionary powers under Art. 226 of the Constitution in favour of the petitioner. I propose to deal with the question about the model last of all.
I may now turn to the language of the impugned resolution of the Regional Transport Authority. At the outset the route in question is mentioned therein and in the first paragraph, which can be taken to be in the nature of a preamble, it is stated that the route was 30 miles long out of which 22 miles were in Rajasthan and 10 miles in Madhya Pradesh. I may pause to notice that according to the writ petition the portion falling within Madhya Pradesh is 7 miles, but this little discrepancy in the description of the route is of no consequence. Then it is mentioned in the preamble paragraph that the reciprocity was for 4 trips for Rajasthan and two trips for Madhya Pradesh as per revised reciprocity agreement. This also introduces some discrepancy in the narration of events which I have made according to the writ petition but here again that is of no consequence, because the parties are one in saying that the revised reciprocity stood as 4 single trips for Rajasthan. It is also noted in this opening paragraph that there was one existing permit of Jhalawar Transport Service on this route. Then in the next paragraph the Regional Transport Authority has noted that in all 8 applications were received. Against the name of Messrs Sharma Transport Jhalawar words "suo-moto" are mentioned in a bracket. However, nothing turns on that either. What is significant to notice is that the Regional Transport Authority has referred to the various applications that were pending. Having then recited that as Rajasthan had been allotted 4 trips of which 2 single trips were already availed of by the existing operator, it was stated by the Regional Transport Authority that there was vacancy of one more permit for completing the 4 trips allotted to Rajasthan. After this the following recitals in the Regional Transport Authority's resolution are important. "shri Bapatali, M/s. Poddar Brothers, M/s. Masand Transport Co. and Shri Sohan Singh were absent Sharma Transport represented by Shri Shyam Sunder Sharma has permits on other routes in his name. Shukla Transport Co, represented by Shri S. D. Shukla is resident of Kota and if permit is granted to him, he will not be in a position to manage its running as it would be very uneconomical for him to manage. Shri Radhey Shyam Banwarilal has got other permits in his name. M/s. Ramanlal Chunnilal are residents of Ramganjmandi and they too hold one permit on Jhalawar Pirawa via Himmatgarh. Shri Umerdaraz is a driver and has got ready bus No. RJR 4317 which stands in his name and is not covered by any permit. Mr. Jain of Jhalawar Tr. Service and Shri Shyam Sunder Sharma operator of Chechut Soyat route objected to the grant of the permit on the ground that the route in question is already served by many other buses although there exists reciprocity of accommodating one more bus. The objections put forward by both the parties are not maintainable on the face of the facts that there exists a vacancy and there is no reason not to issue fresh permits only because they are running on the route or the portion of the route. " Having said what I! have extracted above, the Regional Transport Authority resolved that the objections be dropped of one non-temporary stage carriage permit valid for 3 years on Patan-Pirawa via Soyat route be granted to respondent Umerdaraz driver on his ready vehicle No. RJR 4317. Before I proceed further I may make it clear that although the application for grant of permit was from Jhalawar, which has also been referred as Brijnagar to Pirawa via Soyat, the permit has actually been granted for the portion Patan to Pirawa. Learned counsel for the parties are agreed that this curtailment was necessitated on account of the nationalisation of the route between Jhalawar and Patan. Learned counsel for the parties have put their own constructions on this resolution of the Regional Transport Authority. Shri Gupta has argued that this resolution does not say in so many words that the application of the petitioner has been decided or disposed of or refused for that matter. Learned counsel for the respondent, on the other hand, submits that according to this resolution there was one additional permit to be granted and this was the position even according to the writ petition and he invited my attention to paragraph No. 2 of the writ petition and in this context he argued that since one permit alone was to be granted and the same had been granted to respondent No. 2, all the applications which have been mentioned in the resolution must necessarily be taken to have been disposed of. He urges that there is a reference to the several applications in the body of the resolution and the Regional Transport Authority had dealt with the merits of the applications of all such persons who had cared to appear before the Regional Transport Authority.
It cannot be gain said that according to the resolution of the Regional Transport Authority there was vacancy of one more permit only for completing the 4 trips allotted to Rajasthan in pursuance of the revised reciprocity between the two States. This is also evident from paragraph 2 of the writ petition wherein the writ petitioner had himself averred that "there is thus a scope of grant of one more permit on this route. " This factor is, in my view, determinative of the question whether the resolution can be said to have disposed of all the applications including one of the writ petitioner. In construing the resolution one has to read it as a whole and in a harmonious manner. It had been noted in the resolution as to what applications had been received and which were kept pending. Then in the portion of the resolution extracted in the earlier part of the judgment the Regional Transport Authority had referred to the applications of various persons who were present. It had noticed that Messrs Bapatali Messrs Poddar Brothers, Messrs Masand Transport Company and Shri Sohan Singh were absent. In my view, there would be no occasion for noting the absence of these persons if this had no relation to the pendency of their applications. Then the Regional Transport Authority dealt with the applications of Sharma Transport, Shukla Transport, Radhey Shyam Banwarilal and Messrs Ramanlal Chunnilal and disposed them of one by one. Finally it referred to the application of respondent Umerdaraz and thought fit to grant him a permit. In these circumstances, in my view, it would be irrational to hold that the petitioner's application was still pending and had not been disposed of. This is not to approve of the language in which the Regional Transport Auth-ority has framed its resolution. It is always desirable for that authority to indicate clearly as to what applications were being rejected if it decides to reject any. It is also expected of such authority to give reasons when an application is refused. It was however, held by their Lordships of the Supreme Court in Ram Gopal vs. Anant Prasad (1) that the grant of a permit to one applicant would automatically mean the refusal of the permit to the other, when there are two such applications for the grant of the same permit. Their Lordships observed as follows: "the grant of a permit to one would automatically mean the refusal of the permit to the other. When there are two applications in respect of the same permit, one of which is by way of renewal to which objections have been filed 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 cl (a ). The fact that an express order refusing the permit is not made cannot operate to his prejudice. " In these circumstances I am clearly of the opinion that the impugned resolution of the Regional Transport Authority amounted to a refusal of permit to the petitioner and on that basis the petitioner could have gone in appeal to the Transport Appellate Tribunal.
The next point is whether in the circumstances disclosed it can be said that the petitioner has made out a case for the exercise of the discretionary powers of this Court under Art. 226 of the Constitution inspite of the petitioner not availing the statutory remedy of an appeal to the Transport Appellate Authority. Shri Gupta strongly contended that there was violation of principles of natural justice in the case and also the provisions of the Act had not been followed by the Regional Transport Authority in that no notice of the hearing the Regional Transport Authority was given to the petitioner. This, according to Shri Gupta, was an exceptional circumstance and it should induce this Court to exercise its discretionary powers under Article 226 of the Constitution even though the petitioner had not lodged an appeal the Transport Appellate Tribunal. Shri Gupta placed reliance on a number of decisions, such as: A. V. Venkateswaran vs. R. S. Wadhwani (2), UP. State vs. Mohammad Nooh (3), The Queen vs. Thomas (4), Motilal vs. Uttar Pradesh Govt. (5 ). C R. H. Readymoney Ltd. vs. State (6), Assistant Collector of Customs vs. Soorajmull (7), Messrs Moti Lal Ram Kalyan vs. The Appellate Authority of State Transport Authority, Rajasthan, Jaipur (8), Messrs Zahoor Ahmed Mohammad Shafi vs. The Transport Appellate Tribunal, Rajasthan and an unreported case of this Court in Brahma Dutt vs. State of Rajasthan (D. B. Civil Writ petition No. 207 of 1967) decided on 28-11-67.
In A V. Venkateswaran vs. R. S. Wadhwani (2), their Lordships pointed out that the rule that the party who applies for the issue of a high prerogative writ should, before approaching the court, exhaust other remedies open to him under the law is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which courts have laid down for the exercise of their discretion. Then their Lordships pointed out that complete lack of jurisdiction in officer or authority to take the action impugned, or where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and consequently the order could be treated as void or non-est, are the two exceptions to the normal rule as to the effect of the existence of an adequate alternative remedy. Their Lordships, however, added that even beyond these exceptions a discretion vests in the High Court to entertain the petition and grant the petitioner relief notwithstanding the existence of an alternative remedy. These were, according to their Lordships, only broad lines of the general principles on which the court should act, but their Lordships observed that their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the court, and in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the court.
State of U. P. vs. Mohammad Nooh (3) also states the same principles. In that case their Lordships pointed out that provided the requisite grounds exist certiorari will lie although a right of appeal has been conferred by statute, but the fact that the aggrieved party had another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should in exercise of its discretion issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. Their Lordships further observed that the rule requiring the exhaustion of statutory remedy before the writ would be granted is a rule of policy, convenience and discretion rather than a rule of law. The superior court, according to their Lordships, will readily issue a certiorari in a case where there has been a denial of natural justice before a court of summary jurisdiction.
The other cases do not lay down any different principles. The problem is always one of properly applying the principles to the facts and circumstances of the case in hand. The circumstances of a case may present individual features which may not fully correspond to the features presented in a cited case.
There can be no manner of doubt that a Regional Transport Authority must give adequate notice of the hearing before it to all the parties concerned. That is the requirement of the statute as well as a demand of natural justice. In the present case the consideration that can be spelt out from the resolution of the Regional Transport Authority that has weighed with it for the brushing aside of the application of the petitioner and some others is that they were absent. From this, it is legitimate to infer that the Regional Transport Authority thought that these persons were not keen to pursue their applications. I should not, however, be understood to suggest that I approve of the manner in which the agenda was published by the Regional Transport Authority, nor do I hold that the petitioner should not have had a notice of the hearing. I am referring to this observation only for the purpose of saying that the Regional Transport Authority thought that the petitioner or the absentees for that matter were not keen to pursue their applications. This, therefore, prompts an enquiry as to why the petitioner who had come to know of the grant of permit to respondent No. 2 did not choose to file an appeal before the Transport Appellate Tribunal or come to this Court by a writ petition with promptitude. On his own showing the petitioner came to know on 25-1-67 that respondent No. 2 had been given a permit by the Regional Transport Authority. Since, on the petitioner's own showing, there was scope for only one permit he ought to have realised that his application had been disposed of to his prejudice. Now it was suggested at the bar by learned counsel for the petitioner that the Regional Transport Authority did not prepare its resolution then and there or within a reasonable time of the meeting and, therefore, the litigant had necessarily to wait for the preparation of the resolution. It may be that the resolutions are drawn up by the Regional Transport Authority after a good deal of delay, but this does not appear to be so in the present case. In this case the Jha-lawar Transport Service, who was the existing operator, lodged an appeal against the impugned resolution of the Regional Transport Authority before the Transport Appellate Tribunal and that appeal was finally disposed of on 22-7-67 (vide Ex 2 on the record ). This suggests that the resolution must have been ready before the appeal was lodged. It is, however, not clear as to when the appeal was lodged, but looking to the fact that the appeal must have been disposed of after some-time had gone by since its presentation and some time must have been spent in serving the respondents, it can be legitimately inferred that the appeal must have been lodged some 2 or 3 months at least before it came to be heard and disposed of. In these circumstances, I am not prepared to accept the submission that the resolution of the Regional Transport Authority was not ready and, therefore, the writ petitioner could not take timely steps to go up in appeal or to come to this Court with promptitude. Learned counsel then submitted that though he applied for the copy on 30-1-67, the copy itself was ready only on 4-8-67 when the Secretary, Regional Transport Authority signed it. This is so, but the petitioner should have shown keenness in trying to obtain the copy and to take appropriate steps for going up in appeal or coming to this Court.
It has been averred by the respondent in paragraph 5 of the reply, as already noticed, that when the application of respondent No. 2 and that of the petitioner and some others were not shown in the agenda for the meeting of the Regional Transport Authority to be held on 24th/25th November, 1966 the applicants including one Pyare Singh, attorney of the petitioner, met at Kota and decided to meet the Secretary, Regional Transport Authority and they then met him and requested him to consider all the applications on the route in question simultaneously. It is stated that these applicants met the Secretary in the first week of November, 1966 and requested him to revise the agenda. The Secretary is then said to have assured them that all the applications would be simultaneously taken up for consideration. This reply of the respondent thus creates an impression that the petitioner knew very well that the meeting of the Regional Transport Authority was to be held on 24th/25th Nov. , 1966. No counter affidavit has been submitted to controvert the facts sworn by respondent No. 2 in paragraph 5 of his reply. Now, if the petitioner were thus put on guard that a meeting of the Regional Transport Authority was going to be held and thereafter if he did not care to be present unlike respondent No. 2 and some other applicants after ascertaining the adjourned date, then it is legitimate to infer that he was not keen to persue his application. This belief is strengthened by the petitioner's lethargy between 30th of January, 1967 and August, 196/ when he did not show sufficient keenness to obtain the copy of the resolution of the Regional Transport Authority and to either file an appeal or to come to this Court by a writ petition without delay. Thus, looking to what had taken place before the Regional Transport Authority's meeting and the subsequent lethargy of the petitioner it has to be inferred that he was not keen to pursue his application.
(3.)IT is not a case where the order of the Regional Transport Authority can be said to be altogether null and void or nonest. At best it is voidable against the applicant if it be taken that he was not given notice of the hearing before the Regional Transport Authority. In a case of the kind where an order of the authority is not wholly void but one which is voidable at the option of the party, the conduct of the party can be taken into consideration. After a permit is obtained by a party and a bus is put on a route it is common knowledge that all the concerning rival parties come to know of grant of such permits. Thereafter it is expected that if one has any grievance, then that should be ventilated by appropriate proceedings with promptitude. In view of these features I am satisfied that it is not a case where the discretion of the Court under Art. 226 of the Constitution should be exercised in favour of the party inspite of his not having availed of the alternative remedy of an appeal before the Tribunal.
Lastly, I may deal with the question concerning the model of the vehicle. The petitioner has placed on record a copy of the registration certificate of the vehicle as 1960 model. It is, therefore, contended by learned counsel that a vehicle of a model older than 5 years could not have been allowed to be put on an 'a' class route like the route in the present case. I have carefully considered the resolution. However, I am unable to find anything to show that the Regional Transport Authority had imposed any condition about the model. The question then immediately arises whether the Regional Transport Authority was bound to impose any condition about the model. The only rule that was brought to my notice was rule 84a of the Rajasthan Motor Vehicles Rules, 1951, which is in the following terms: R. 84-A A Stage carriage permit-Conditions regarding model of vehicle - In pursuance of any general or specific direction issued by the State Transport Authority in this behalf a condition may at the time of the grant or renewal of a stage carriage permit, be attached to the effect that the carriage in respect of which such permit is granted or renewed shall not be of a model earlier than a specified year. " The rule provides for two things (1) that there should be any general or specific direction issued by the State Transport Authority relating to a model condition, (2) then, if there is such a condition issued by the State Transport Authority, the Regional Transport Authority may impose such a condition for the grant of the permit at the time of such grant. The second part of the rule unmistakably shows that the matter is within the discretion of the Regional Transport Authority about imposition of the model condition and further, that condition has to be imposed at the time of the grant of the permit. From the Regional Transport Authority's resolution it cannot be inferred that any such model condition was imposed on respondent No. 2. The body of the resolution only shows that the Regional Transport Authority took into consideration the fact that respondent Umerdaraz was a driver and had got a ready bus No. RJR 4317 which was standing in his name and was not covered by any permit. In other words, the consideration for showing preference to respondent No 2 was his having with him a ready vehicle. Whatever was the model was taken note of and the Regional Transport Authority did not prescribe any later model which it could have done if it thought fit to impose such a condition. In these circumstances the third contention of the learned counsel too has no force.
In the result the writ petition fails and is hereby dismissed. The parties are left to bear their own costs. .