M. C. JAIN, J. - (1.) THE are two writ petitions, which raise common questions, so they are being disposed of by this common order.
(2.) THESE facts of both the cases lie in a narrow compass. In Jodhpur region there is route known as Jodhpur - Bhopalgarh - Ashop- Mundwa amalgamated route consisting of seven routes It is said that there was a scope of 14 stage carriages to perform 7 return services. The Secretary, Regional Transport Authority, Jodhpur (hereinafter referred to as "the Secretary") recommended to in crease the scope from 14:7 to 28 stage carriages to perform 14 return services. Considering that increase of scope is under contemplation, the petitioner Madanlal in S. B. Civil Writ Petition No. 1511 of 1981 moved an application for the grant of one non-temporary stage carriage permit on 17. 11. 1980. According to him his application was kept pending and was not sent for publication as required under Sec. 57 of the Motor Vehicles Act, 1939 (hereinafter referred to as "the Act"), probably for the reason that the scope was awaited The matter relating to the increase of the scope was listed in the meeting of the Regional Transport Authority, Jodhpur (hereinafter referred to as "the R. TA. ") held on 26. 5. 1981, but the matter was continued to be adjourned upto 18. 9. 1981. He, however came to know that by a circulation note dated 30. 7. 1981 the R. T. A. increased the scope from 14:7 to 16:10 by its order dated 10. 8. 1981 and one temporary permit has been granted to non-petitioner No 2 Shri Ramgopal Rajpurohit by its order dated 12,8 1981. The petitioner Madanlal then made mention of the facts as to when and how the application of non-petitioner No. 2 was dealt with. It was averred by him that the Secretary on the office note dated 9. 1. 1981 passed a note on 20. 1. 1981 to the effect that at present there is no vacancy, so the application is rejected and the petitioner be informed. The member, while considering the application of non-petitioner No. 2, rejected the petitioner's application and ordered for the grant of temporary permit to the non-petitioner No. 2 stating therein that after increase in the scope no application for the grant of non-temporary stage carriage permit has been received and the application received prior to the increase in scope, is summarily rejected. There was only one application for the grant of temporary permit, of non-petitioner No. 2, whereas there were two vacancies. Non-petitioner No. 2 had a ready vehicle, so considering the public interest a temporary permit for a period of 4 months was granted to non-petitioner No. 2 for the reason that it may take considerable time in the grant of permanent permits. Temporary permit was accordingly issued on 21. 8. 1981. Bhallaram petitioner in writ petition No. 1512 of 1981, is an existing operator holding a non-temporary stage carriage permit JU/17/13 duly renewed upto 15. 2. 1981 in respect of his stage carriage No. RJE 3715, which he operates on the aforesaid amalgamated route in rotation with other 13 buses of the co-operators. The petitioners have challenged the grant of temporary permit, namely, on the ground that the application of Madanlal for the grant of non-temporary stage carriage permit was pending and his application was not liable to be summarily rejected. In view of the pendency of his application, the grant of temporary permit to non-petitioner No. 2 was without jurisdiction. His application should have been considered and dealt with under Sec. 57 (3) of the Act. There is a controversy between the parties as to whether the Secretary communicated the order of rejection of Madanlal's application to him. However, the petitioners have alleged that the order of rejection of Madanlal's application by the Secretary is without jurisdiction for which there is no dispute between the parties. Non-petitioner No. 2 Shri Ramgopal Rajpurohit has filed reply to the writ petition and has pleaded that the application of Madanlal was not maintainable before the increase in the scope and so the same has been rightly rejected summarily by the R. T. A. A rejoinder to the reply has also been filed by the petitioner Madanlal. There was a dispute between the parties as to the existence of the scope of 14:7 and according to the petitioner Madanlal the record of fixation of scope 14:7 was not available. Non-petitioner No. 2 submitted a photostat copy of the Directory in which the scope of the route is mentioned as 14 permits and 5 trips. Non-petitioners No. l and 3 submitted their reply in which they stated that though actual resolution fixing scope of 14 could not be traced out, it appears that the scope of 14 permits was fixed some-where between 7. 11. 1968 and 11. 9. 1970, which is borne out from the resolutions No. 59 dated 7. 11. 1968 and No. 39 dt. 11. 9. 1970, Ex. R/l& Ex. R/2 respectively. By the first resolution scope of 12 was fixed and the second resolution Ex R/2 recites that the scope has already been fixed of 14 permits on the route and the resolution No. 39 was in connection with the proposal of increase of scope. Resolution No. 32 dated 16. 1. 1976 Ex. R/3 also recited that as per the office record, scops of 14 permits was fixed and 14 vehicles are being plied and there is no scope on the route, so by this resolution, the application of the Rajasthan State Road Transport Corporation was rejected and it was directed, that after survey of the traffic within 30 days, the matter relating to revision of the scope be put up. Vide resolution Ex. R/4 dated 25. 7. 1978 4 applications were rejected for want of vacancy. In this resolution as well the scope was mentioned as 14. Bhallaram in this writ petition accepts the scope of 14:7. In view of Bhallarara's admission and in view of the record, it can be taken that the existing scope was 14:7, although the actual resolution fixing this scope has not been placed on record, as the same was not traceable. Thus, the writ petitions have to be considered on the basis that when Madanlal submitted his application for the grant of non-temporary stage carriage permit, the scope on the route was 14:7. The main controversy in the present writ petitions is, whether the application of the petitioner Madanlal can be considered to be pending after the increase in the scope, so as to deprive the R. T. A to consider any application for the grant of temporary permit and if the application is considered pending, was it valid on the part of the R. T. A. to reject the application of Madanlal summarily and grant a temporary permit on the application of non-petitioner No. 2 after increase in the scope?
(3.) I have heard Shri R. R. Vyas, learned counsel for the petitioner Madan Lal and Shri J. G. Chhangani, learned counsel for the petitioner Bhallaram and Shri Rajesh Balia, learned Deputy Government Advocate and Shri R. N. Munshi, learned counsel for Shri Ramgopal Rajpurohit. The whole question is to how the application of Shri Madanlal is to be deatt with in law by the R. T. A. when it was presented before the increase in scope Can it be rejected summarily before the grant of temporary permit In order to appreciate the controversy debated before me it is essential to examine and consider the scheme of Chapter IV of the Act dealing with 'control of Transport Vehicles'. This Chapter contains sections 42 to 68. The relevant provisions of Chapter IV are the provisions contained Sections 45, 46, 47, 48, 57 and 62. Section 45 (1) and (2) provides the authority to whom the application for a permit has to be submitted. Sub Sec. (3) of Sec. 45 lays down the requirement of deposit of security with the application. Sub-sec. (4) of Sec. 45 is a relevant and important provision, which is reproduced hereunder: "45. General provision as to applications for permits. (l) x x x x x (2) x x x x x (3) x x x x x (4) The security furnished under subsection (3) may be forfeited in whole or in part by the transport authority if it is satisfied that the application was made for the purpose of preventing the issue of a temporary permit under section 62 and the whole or part of it as has not been forfeited shall be refunded to the applicant as soon as may be, after the disposal of the application. Provided that no such forfeiture shall be made unless the transport authority has given the applicant a reasonable opportunity of being heard. " The above sub-section empowers the transport authority to forfeit the security furnished, if it is satisfied that the application was made for the purpose of preventing the issue of a temporary permit under section 62. The security may be forfeited as a whole or in part. Sec. 46 deals with the contents of the application. Sec 47 prescribes procedure which has to be followed by the R. T. A. in considering the applications for stage carriage permit. Sub-sec. (l) thereof mentions the matters to which regard has to be had, while considering the applications for stage carriage permits and the R. T. A. is also under obligation to consider any representations made by persons stated therein. There are other provisions in this section, which are not relevant for the purpose of these writ petitions, but sub sec. (3) of Sec. 47 is a most relevant provision, which for facility of reference, is reproduced as under:- "47. Procedure of Regional Transport Authority in considering application for stage carriage permit. XX XX XX XX XX XX XX XX XX XX (3) A Regional Transport Authority may, having regard to the matters mentioned in sub-section (1 ). limit the number of stage carriages generally or of any specified type for which stage carriage permits may be granted in the region or on any specified area or on any specified route within the region. " According to the above provision the R. T. A. is required to limit the number of stage carriages generally or of any specified type for which stage carriage permits may be granted having regard to the matters mentioned in sub-section (1) Sec. 48 confers power on the R. T. A. to grant stage carriage permit, and to impose conditions specified in subsection (3) of Sec. 48 Under sub-sec. (1) of Sec 48, the grant of permit has been subjected to the provisions of Sec. 47, which will mean as well that the grant of a permit is subjected to Sub-sec. (3) of Sec 47. That is permits can be granted by the R. T. A. only within the limits fixed by it under sub-sec. (3) of Sec. 47 and it cannot transgress the limit fixed by it at the time of grant of permits under Sec. 48. Sec. 57 provides the procedure in applying for and granting permits. Under sub-sec. (2) of Sec. 57 an application for a stage carriage permit can either be made by any person suo-moto or on the invitation by the R. T. A. When it is made suo-moto, it has to be made not less than six weeks before the date on which it is desired that the permit shall take effect, so that the R. T. A may process it under sub section (3) or the application can be made on the date appointed by the R. T,a. for the receipt of the applications. Under Sub-sec. (3) of Sec. 57 provision is made for making the application available for inspection and publication in the prescribed manner together with a notice of the date before which representations may be submitted, which shall not be less than thirty days from the date of the publication and the notice can also provide the day, time and place when the application and the representations will be considered. Proviso to sub sec (3) of sec. 57 is another important and relevant provision, which reads as under:- "provided that, if the grant of any permit in accordance with the application or with modifications would have the effect of increasing the number of vehicles operating in the region, or in any area or on any route within the region, under the class of permits to which the application relates, beyond the limit fixed in that behalf under sub-section (3) of section 47 or sub-section (2) of section 55, as the case may be, the Regional Transport Authority may summarily refuse the application without following procedure laid down in this sub section. " It is this proviso, which needs consideration in the present writ petitions It lays down that if in grant of any permit, the R. T. A. would exceed the limit fixed under sub-section (3) of Sec, 47 the R. T. A. may summarily refuse the application without following the procedure laid down in sub-section (3) of Sec. 57. Sec. 62 provides for grant of temporary permits. Sub-section (1) of Sec. 62 lavs down that the R. T. A. may grant permits, to be effective for a limited period in no case to exceed four months, to authorise the use of a transport vehicle temporarily for the purposes mentioned in clauses (a) to (d) thereof without following the procedure laid down in Sec. 57 Proviso first to sub-section (1) of Sec. 62 is another relevant provision, which may be quoted as under:- "provided that a temporary permit under this section shall, in no case, be granted in respect of any route or area specified in an application for the grant of a new permit under section 45 or section 54 during the pendency of the application. " The above proviso bars the grant of a temporary permit during the pendency of the application under Sec. 46 for the grant of a new permit. It would appear that under the first proviso to sub-section (1) of Sec. 62 of the Act no temporary permit can be granted if an application for the grant of a non-temporary permit is pending and if the R. T. A. grants temporary permit during the pendency of such an application, the grant of a temporary permit would be without jurisdiction, as it would be in contravention of what is contained in the first proviso. Under the proviso of sub-section (3) of Sec. 57 of the Act, the application for the grant of a non-temporary permit can be summarily rejected, if by such grant the limit fixed under sub-section (3) of Sec. 47 exceeds. Thus, if an application for a non-temporary permit is made beyond the scope fixed under sub section (3) of Sec 47, such an application entails summary rejection. To the same effect is the provision contained in Sec. 48, as the grant of permit under Sec. 48 is subjected to Sec. 47 and Sec. 47 includes sub-section (3) of Sec. 47, so under Sec. 48 no permit can be granted beyond the limit fixed under sub-section (3) of Sec. 47. A provision for forfeiture of security is embodied in sub-section (4) of Sec. 45, where the application has been made for the purpose of preventing issue of temporary permit under Sec. 62. These are the relevant provisions if law on which the question that arises for consideration in the present writ petitions, has to be examined. ;