- (1.) THE appellant-company, the Fatehgarh Bus Service (Private) Limited, Sirhind, in Patiala District, carries on the business of passenger transport, holding four permits for carriage of passengers, operating with twelves return trips on Ahmedgarh-Bassi route via Kara and Chawa. On December 8, 1967, respondent 1, the State Transport Commissioner, Punjab granted one temporary passenger carnage transport permit, with two daily return trips, to each of the two respondents, 2 and 3, respectively the Punjab Roadways, Chandigarh, and the Pepsu Road Transport. Corporation, Patiala, for the Ludhiana-Rararoute via Chawa. The route of the temporary permits of respondents 2 and 3 overlaps by about nine miles the route with the appellant-company.
(2.) ON January 10, 1968, the appellant-company made a petition under Articles 226 and 227 of the Constitution to have the order, dated December 8, 1967, Annexure 'a' to the petition, of respondent 1 granting temporary permits to respondents 2 and 3 quashed on various grounds including the ground that the temporary permits were granted to respondents 2 and 3 by respondent 1 without any notice or information in that respect to the appellant-company. The respondents resisted the petition, and, while not denying that the route of the temporary permits to respondents 2 and 3 partly overlaps the route of the appellant-company, in the return on behalf of respondent 3 a preliminary objection was taken that the petition was not maintainable because the appellant-company had not recourse to alternative remedies of appeal and revision available under the provisions of the Motor Vehicles Act, 1939 (Act 4 of 1939), hereinafter to be referred as 'the Act'. 2-A. In Punjab the State Legislature-has added Section 44-A in the Act and that section reads- "44-A. The State Government may appoint a State Transport Commissioner and one or more Deputy State Transport Commissioners and notwithstanding anything contained in this Act, may, by notification, authorise such Commissioner and Deputy State Transport Commissioner or any officer subordinate to them, to exercise and discharge, in lieu of any other authority prescribed by or under this Act, such powers and functions as may be specified in the notification. " The Punjab State Government has by Notification No. S. O. 3/c. A. 4/39/s. 44a/ 66, of November 30, 1966, conferred powers and functions of the Regional Transport Authority on the State Transport Commissioner under Section 44-A of the Act "in relation to grant of stage carriage permits in the implementation of the 50: 50 scheme as approved by Government vide Notification No. 6438-6ht-59/12538, dated 1st July, 1959. " In Section 64 of the Act has been made provision for appeals and the section reads -"64. Any person- (a) aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or (b) aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, or (c) aggrieved by the refusal to transfer the permit to the person succeeding on the death of the holder of a permit, or (d) aggrieved by the refusal of the State or a Regional Transport Authority to countersign a permit, or by any condition attached to such counter-signature or (e) aggrieved by the refusal of renewal of a permit, or (f) being a local authority or police authority or an association which, or a person providing transport facilities who, having opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto, or (g) aggrieved by the refusal to grant permission under Sub-section (1) or Sub-section (2) of Section 59, or (h) aggrieved by a reduction under Sub-section (1-A) of Section 60 in the number of vehicles or routes or area covered by a permit, or (i) aggrieved by any other order which may be prescribed, may, within the prescribed time and in the prescribed manner, appeal to the prescribed authority who shall give such person and the original authority an opportunity of being heard. " Section 68 of the Act gives a State Government power to make rules and Sub-section (2), Clause (j), concerns the power to make rules in regard to "the authorities to whom, the time within which and the manner in which appeals may be made. " In exercise of this power, the Punjab Motor Vehicles Rules, 1940, hereafter to be quoted as 'the 1940 Rules', have been made in which Rule 4. 37 deals with the subject of appeals as envisaged by Section 68 (2) (j) of the Act. This rule was amended on August 26, 1967, by the State Government Notification No. G. S. R. 69/c. A. 4/39/s. 68/amd. (32)/67. In this rule, as amended, Sub-rules (1), (7) and (8) are material for the present purpose, as the amendments of 1968 do not concern this case, and the same read - "4. 37. (1) Except as otherwise provided in Sub-rule (7) the authority to decide an appeal (hereinafter referred to as the appellate authority) under Clauses (a), (b), (c), (d), (e), (f), (g), (h) and (i) of Section 64 shall be the Financial Commissioner, Revenue, Punjab. (7) The appellate authority against the orders of the State Transport Commissioner, Deputy State Transport Commissioner or any other officer subordinate to them, authorised by the State Government under Section 44-A to exercise and discharge in lieu of any other authority such power and functions as may have been specified, shall be - (a) the Financial Commissioner, Revenue, Punjab, in cases where the Corporation as defined in Clause (b) of Section 2 of the Road Transport Corporation Act, 1950, is a party to the appeal; and (b) Secretary to Government, Transport Department, Punjab, in cases other than those mentioned in Clause (a) above. (8) A person desiring to prefer an appeal against an order of the State Transport Commissioner or Deputy State Transport Commissioner or any officer subordinate to them in respect of any order of the kind referred to in Sub-rule (1) shall within thirty days of the receipt of the order prefer a memorandum (in duplicate) one copy of which shall bear a court-fee stamp of five rupees to the appellate authority setting forth concisely the grounds of objection to the order of the State Transport Commissioner or Deputy State Transport Commissioner or any officer subordinate to them together with a certified copy of that order. "
(3.) THE learned Single Judge in his order of March 11, 1968, dismissing the petition of the appellant-company, was of the opinion that Rule 4. 37 (7) provides for an appeal against the order of the State Transport Commissioner having regard to Clause (i) of Section 64 of the Act and so the appellant-company had a right of appeal against the order of respondent 1 granting temporary permits to respondents 2 and 3. It not having had recourse to the remedy available under the provisions of that Act, it was not entitled to the exercise of discretionary powers of this Court under Articles 226 and 227 of the Constitution. So the learned Judge dismissed the petition of the appellant-company, leaving the parties to their own costs, and this is an appeal by the appellant-company against the judgment and order of the learned Judge.;