BERI, J. - (1.) THIS is an appeal directed against the judgement of the learned single Judge who dismissed the appellant's petition under Arts. 226 and 227 of the Constitution of India against the grant of a stage carriage permit to respondent Hemraj by the State Transport Appellate Tribunal, Jaipur (hereinafter called "the S. T. A. T.) on Bikaner Salasar route.
(2.) TO appreciate the rival contention urged before us it will be necessary to recount a few facts. Bikaner - Salasar via Nhoka and Sujangarh is a 130-miles route in the Bikaner region. On October 9, 1958 a scope of 12 permits was fixed over the route by the Regional Transport Authority, Bikaner (abbreviated as 'the R. T. A. '. The scope of 12 permits was increased to 18 by the R. T. A on the 30th October, 1965. Sixteen vehicles were plying on the Bikaner-Salasar route when on 12. 12. 67 the R. T. A. resolved to amalgamate the routs of (1) Nokha - Sujangarh, (2) Sujan-gash - Salasar and (3) Nokha - Bikaner with the Bikaner - Salasar route. On January 28, 1969 the R. T. A. determined the scope of the amalgamated route under sec. 47 (3) of the Motor Vehicles Act at 24 vehicles with six return trips. On June 24, 1969 the applications of respondent No. 3 Hemraj and some 15 other persons for permits on Bikaner-Salasar route came to be considered but the R. T. A. rejected all the applications on the ground that as 24 vehicles were already plying on the route there existed no vacancy. Respondent No. 3 Hemraj preferred an appeal against the resolution of the R. T. A. by its order dated the 19th July, 1971 allowed the appeal on the ground that the and the S. T. A. scope fixed by the R. T. A. on 30th October, 1965 on Bikaner-Salasar route via Nokha and Sujangarh stood in tact and because only 16 vehicles were plying there were two clear vacancies and Hemraj was entitled to a permit. Aggrieved by that decision Nathuram appellant questioned the decision of the S. T. A. T. by means of a writ but it was dismissed by the learned single Judge mainly on the grounds (i) that Nathuram's predecessor-in-title did not file any objections to the application of Hemraj for a permit as envisaged by sec. 57 of the Motor Vehicles Act and as such the writ by him was not maintainable; (ii) that the petitioner made wrong statement of fact in para 3 of the petition when he said that only 3 routes, namely, (1) Bikaner-Salasar, (2) Nokha. Sujangarh and (3) Sujangarh - Salasar were amalgamated on 12-12-1967 whereas in point of fact the fourth route Bikaner - Nokha was also amalgamated; (iii) the learned single Judge held that Hemraj's application was published in the Gazette on 29-6-1968 and was, therefore, ripe for consideration on that date. It was on 28-1-1969 that the scope on the amalgamated route was revised and the crucial time to ascertain whether there was a vacancy or not was 29-6-1968 when there existed 2 vacancies on the un amalgamated route of Bikaner - Salsar and therefore, the S. T. A. was right in granting a permit; (iv) and lastly the learned single Judge held that the scope of the amalgamated route was not properly determined. Mr. Mehta, learned counsel for the appellant, submitted that the application of Hemraj was published on 29th June, 1968 by which date no objection could be submitted by the appellant as it was on 28th January, 1969 that the R. T. A. determined the scope on the amalgamated route at 24. A representation under sec. 57 (3), urged the learned counsel, was in the nature of an objection against the applicant and not for fixing the quota for permits under sec. 47 (3 ). The material time for taking into account the scope fixed under sec. 47 (3) of the Motor Vehicles Act was the time when the application for grant of a permit came for consideration and not the time when it became ripe. He placed reliance on Kasireddy Varahalu vs. State of Andhra Pradesh Home (Transport III) Department, Hyderabad (l); Maharashtra State Road Transport Corporation vs. Mangrulpir Joint Motor Service Co. (P) Ltd (2); Ajit Kumar Singh vs. The Regional Transport Authority, Kanpur (3); Abdul Mateen vs. Ram Kailash Pandey 4); R. Obliswami Naidu vs. Addl. State Transport Appellate Tribunal, Madras (5) ; Mohd. Ibrahim vs. S. T. A. Tribunal, Madras (6) and Dilip Kumar Dutta vs. R. T. A. Hooghy (7 ). Mr. R. N. Vyas, learned counsel for the respondent No. 3 urged that the proviso to sec. 57 (3) enabled the R. T. A. to summarily refuse the application if any grant of permit was beyond the limit fixed in that behalf under sub sec. (3) of sec. 47. The R. T. A not having rejected Hemraj's application under sec. 57 3) there was a vacancy. The application not having been objected to under sec. 57 (3) the writ petition by the appellant was not competent. He placed reliance on Sri Raja Rajes-wari Bus Service, Vridhachalam vs. Regional Transport Authority South Arcot Cuddalore (8) and Girdhari vs. Regional Transport Authority (9 ). He also submitted that there was no provision for fixing the scope for the amalgamated route on the analogy of the inter regional route because it was no route as such. He placed reliance on Nilkanth Prasad vs. The State of Bihar (l0 ). He urged that the grant of a writ was discretionary and it should be denied to the petitioner-appellant because of his conduct in not joining the appeal or filing the writ before the grant of a permit. The grant of a writ is not a matter of right. He placed reliance on Bhag Singh vs. Transport Appellate Tribunal, Rajasthan (ll ). We might first dispose of the question whether the petitioner was guilty of suppressing any fact. The learned single Judge has observed that the petitioner in paragraph 3 of the petition only referred to 3 routes whereas in point of fact the amalgamation was of 4 routes as per Annexure II (sic ). Ex, P/2 is the copy of the resolution of the R. T. A. dated 12-12-67 which was annexed with the petition of Nathuram and the operative part of this resolution is that having regard to these circumstances it was decided that (i) Bikaner - Salasar, (ii) Nokha - Sujangarh, (iii) Sujangarh - Salasar and (iv) Nokha - Bikaner routes may be amalgamated. But so far as Nokha - Bikaner operators were concerned they may be granted amalgamated permits on their applications according to rules and meanwhile they may be granted temporary permits on Nokha * Salasar route. The amalgamation of the fourth route was, therefore, dependant on the operators making the application. The subject title of Ex. P/2 refers only to three routes and it is likely that the petitioner while drafting the petition was misled on that account. This is not a case of any concealment or avoidence of a fact motivated by any advantage to be derived therefrom. It is merely an incomplete description. The next question which arises for consideration is whether the appellant was not entitled to file the writ petition because he had failed to make representations under sec. 57 of the Motor Vehicles Act against the application of Hemraj. The contention of the appellant is that the scope of the route having been fixed by the R. T. A. on the amalgamated route on 28-1-69 vide Ex. P/4 the grievance of the appellant is not why a permit has been granted to Hemraj but why a permit has been granted in excess of the sanctioned limit and for filing a petition on a ground such as this it was not necessary to file any representation or joining the contest at appellate stage. In R. Obliswami Naidu's case (5) their Lordships of the Supreme Court have clearly laid down that in view of secs, 47 and 57 before granting a stage carriage permit two independent steps have to be taken, Firstly, there should be a determination by the R. T. A. under sec. 47 (3), of the number of stage carriages for which stage carriage permits may be granted on that route. Thereafter, applications for stage carriage permits on that route should be entertained. The reason for clearly demarcating these two steps in the language of their Lordships was that if the determination of the scope of a route under sec. 47 3) and the grant of permit were taken together it would 'throw open the door for manipulations and nepotism", Further we might recall what their Lordships have observed in Mohd. Ibrahim's case (6 ). "the Regional Transport Authority is not obliged to hear operators while exercising jurisdiction under sec. 47 (3) in fixing the limit of number of stage carriage permits". No right of appeal of revision has been provided against an order u/s. 47 (3 ). In Ajit Kumar Singh's case (3) the learned Judges have observed that the petitioners were entitled to challenge the grant of a permit even though they had not filed a representation to the application for a permit where the R. T. A. transgressed the sanctioned limit and acted outside the bounds of its jurisdiction. Learned counsel for the respondent invited our attention to two cases of our Court, namely, Girdhari vs. Regional Transport Authority (9) where this Court held that the petitioner failing to avail of the remedy under sec. 64-A could not file a writ. The case is distinguishable. The petitioner in this case was one of the existing operators on Bikaner - Dungargarh - Sardar Sahar route. A new road was constructed between Dungargarh and Ratangarh. The appellant did not file any representation under sec. 57 against the application of the respondent No. 3 and it was held that he could not file a writ against the grant of a permit to him. The challenge before the R. T. A. was that it had not fixed any scope under sec. 47. In these circumstances it was held that the petitioner could not challenge the grant of a permit. In Sharma Roadways vs. Sohanlal Soni (12) this Court held that where the petitioner had not filed any representation before the R. T. A. he was not entitled to maintain writ petition against the grant of a permit. In that case there was no question about the scope fixed under sec. 47 (3) of the Motor Vehicles Act. Another case relied on by the learned counsel for the respondent was Sri Raja Rajeswari Bus Service, Vridhachalam vs. Regional Transport Authority South Arcot Cuddalore (8) This case came to be considered by the same High Court in M/s. Gajendra Transports (P) Ltd. Tiruppur vs. Anamallais Bus Transports (P) Ltd. , Pollachi (13) and the learned Judge observed as follows : "if by this observation, the Division Bench meant that even where there is no prior order under sec. 47 (3) applications for stage carriage permit on a route have been filed and are notified, and an objection is raised and found to be well founded as to the absence of a prior order under sec. 47 (3), it would be open to the Regional Transport Authority to take proceedings under sec. 47 (3) separately, while keeping the proceedings under sec. 57 (3) pending and before embarking upon the merits of the applications, we are of the view that such a procedure would go against the tenor of the view of the Supreme Court in R. Obliswami Naidu's case (5 ). In the case before us the R. T. A. had taken proceeding under sec. 47 (3) by fixing 24 permits on the amalgamated route of Bikaner-Salasar on the 28th January 1969. The R. T. A. and the S. T. A. T. could not travel beyond the sanctioned limit and if they did they were acting without jurisdiction. A reference might be made to Abdul Mateen's case (4) where their Lordships observed - "we therefore agree with the High Court that where a limit has been fixed under S. 47 (3) by the Regional Transport Authority and thereafter the said authority proceeds to consider applications for permit under S 57, the Regional Transport Authority must confine the numbers of permits issued by it within those limits and on an appeal or revision by an aggrieved person, the Appellate Authority or the divisional authority must equally be confined to the issue of permits within the limits fixed under S. 47 (3)". In the circumstances on which our case rests a party directly affected by an action which was without jurisdiction because the appellate authority transgressed the limits duly set at 24 by the R. T. A. can maintain a writ petition regardless of the fact whether he had opposed the grant of the permit to A, B or C under sec. 57 of the Motor Vehicles Act. The next question which is connected with the preceeding point is whether the limit fixed under sec. 47 (3) on 30th October, 1965 on the amalgamated Bikaner - Salasar route on 23th January, 1969 was relevant for deciding the application of Hemraj. The learned single Judge, as we have already noticed, has expressed the opinion that the relevant fixation under S. 47 (3) for the consideration of the application of Hemraj would be one which was passed on 30th October, 1965. The reason for this approach, according to the learned single Judge, was that Hemraj's application was published on 30-5-1968 it was ripe for consideration on 29-6-1968 and not on the date when it was considered by the R. T. A. i. e. 24-6-1969. We are unable to agree with the opinion expressed by the learned single Judge. In Maharashtra State Road Transport Corporation's case (2) at page 1880 their Lordships of the Supreme Court have made the following observations - "if for any reason, a long time elapses as in the present appeal, the Regional Transport Authority will have to consider the various matters enumerated in Clauses (a) to ( f) of Sec. 46 of the Act at the time of consideration of the applications for the grant of permits". ( Note - The italic is ours ). In sec. 46 one of the particulars contained in cl. (a) to be considered is the route to which the applicaion relates. While considering the route vis-avis the application the limit of the number of stage carriages fixed under sec. 47 (3) cannot and should not be lost sight of. As we have already noticed, this is the first step before any grant of permit is made under sec. 48 read with sec. 57 of the Motor Vehicles Act. In Kasireddy's case (1) the learned Judges of the Andhra Pradesh High Court observed that the law applicable or the circumstances that have to be taken in to consideration for grant of permit by the Regional Transport Authority are those which exist on the date when permits are granted and not on date when proceedings were initiated. We are in respectful agreement with this view. The reasons are not far to seek. It is at the time of the grant of a permit that the sanctioned strength of the scope under S. 47 (3) has to be taken in to consideration. That is the boundary within which grants are to be made. It is the boundary which exists at the time of the grant which is relevant for consideration. Reference to any anterior fixation of the scope under sec. 47 (3) in circumstances which no longer exist and which limits are no longer effective at the time of granting of the permit is an unrealistic evaluation of situation as the grant is dependant on existing limits. One more ground in passing has been referred to by the learned single Judge. He has critically appraised the order of fixation of the limit under sec. 47 (3) on the 28th January, 1969. According to him the limit should have been at 16 and 24. In this context it will be well to remember that when by its resolution of 28th January, 1969 Ex. P/4 the R. T. A. fixed the limit under sec. 47 (3) for Bikaner-Salaser - 130. miles long route objections were filed by Hemraj but no body appeared on his behalf to press them. It is late in the day to assail the resolution of 28th January, 1966 whereby the limit of 24 was fixed by the R. T. A. The S. T. A. T. when it granted the permit to Hemra) respondent did not question its propriety and we are doubtful if it could do so. Much less could we take that factor into consideration.
(3.) THE argument of the learned counsel for the appellant that extension of a permit should be treated as if it was an inter-regional permit in our opinion is devoid of force and Nilkant Prasad's case (10) case does not help him. Extension of a permit is in essence variation of the condition of a permit by the inclusion of a new route or routes permissible under sec. 57 (8) of the Motor Vehicles Act. No other point has been pressed before us. The result is that we accept the appeal of the appellant and set aside the order of the learned single Judge and quash the order of the S. T. A. T. dated 19th July, 1971 whereby it granted the permit to Hemraj. There will be no order as to costs. .;