SOBHAG MAL JAIN, J. - (1.) THIS writ petition is directed against the order resolution of the R. T. A. dated the 12th September. 1985, dismissing the petitioner's application for the grant of a temporary stage carriage permit on the Bhilwara-Shahpura route.
(2.) ON the Bhilwara-Shahpura via Sanganer, Bada Hube, Deeokola, Doongri route, originally the scope fixed was of three permits to perform three return services. The R. T. A. revised and increased the scope to five permits of five return services. The increase was upheld in revision by the State Transport Appellate Tribunal, by its order dated the 6th June, 1979. Against the original scope of three non-temporary stage carriage permits, one permit each was granted to : (1) Lal Chand. (2) Gyan Chand and (3) Sardar Gyan Singh. The permit in favour of Sardar Gyan Singh did not however, survive. A draft scheme under Section 68-C of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act') in relation to the Bhilwara-Deoli route via Mandal Choraha, Baneda, Doongri and Shahpura was published in the Rajas-than Rajpatra. The route covered by the scheme overlaps the Bhilwara-Shahpura route from Doongri to Shahpura, which is 13 kms. Against the three vacancies, the R. T. A. granted temporary permits: to: (1) Ramesh Chand Chandmal, (2) Sharat Chand, the petitioner, and (3) Kamlesh Kumar Rajendra Kumar. The temporary permit granted to the petitioner was valid upto September 14, 1985. The petitioner, therefore, submitted further application for the grant of temporary permit on August 2, 1985. His application came up for consideration before the R. T. A. on September 12, 1985. The R. T. A. , by its resolution dated the 12th September, 1985 rejected the petitioner's application for the grant of temporary permit on the ground that applications for the grant of non-temporary stage carriage permits for Bhilwara-Shahpura route were then pending for consideration. Aggrieved by this order of the R. T. A. , the petitioner has filed this writ petition in this Court. Mr. R. N. Munshi, counsel for the petitioner, has contended that the applications for the grant of non-temporary permits on the route had merely been filed in the office of the R. T. A. and the same could not be said to be pending within the meaning of Section 62 (1) of the Act, Mr. Munshi has further submitted that the portion Bhilwara-Doongri only was the unaffected portion from the draft scheme published under Section 68-C and this part of the route alone was open for non-temporary permits. The petitioner's application for temporary permit was for the entire route Bhilwara-Shahpura and as such his application could not be dismissed on the ground that as applications for non-temporary stage carriage permits were pending, temporary permit could not be granted under Section 62 (1) of the Act. The question for consideration in this petition is, since when the application for the grant of a permit under Section 46 or Section 54 shall be deemed to be pending to attract the bar of the first proviso to sub-Sec. (1) of Section 62. Sub section (1) of Section 62 with its two provisos is set out below :- "62. Temporary permits.- (1) A Regional Transport Authority may without following the procedure laid down in section 57, grant permits, to to be effective for a limited period not in any case to exceed four months, to authorise the use of a transport vehicle temporally- (a) for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings, or (b) for the purposes of a seasonal business, or (c) to meat a particular temporary need, (or) (d) pending decision on an application for the renewal of a permit, and may attach to any such permit any condition it thinks fit: 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 46 or section 54 during the pendency of the application: Provided further that a temporary permit under this section shall in no case, be granted more than once in respect of any route or area specified in an application for the renewal of a permit during the pendancy of such application for renewal. "
(3.) SUB-section (1) confers on the R. T. A. the power to grant temporary permits to meet temporary and special needs. The power to grant permit to meet the temporary need under clause (c) is circumscribed by the first proviso. The words "in no case" emphasise the absolute nature of the prohibition. To understand the true span of the expression "during the pendency of the application" it shall be necessary to have a look at Section 57 of the Act, which laps down the procedure for filing the application and granting permits. SUBsection (1) to (5) of Section 57, which are relevant for our purpose are set out below :- 57. Procedure in applying for and granting permits- (1) on application for contract carriage permit or a private carrier's permit may be at any time. (2) An application for a stage carriage permit or a public carrier's permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, or if the Regional Transport Authority appoints dates for the receipt of such applications, on such dates. (3) On receipt of an application for a stage carriage permit or a public carrier's permit, the Regional Transport authority shall make the application available for inspection at the office of the Authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection there with may be submitted and the date, nor being less than thirty days from such publication, on which, and the time and place at which, the application and any representations, received will be considered : a (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 permit 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.) (4) No representation in connection with an application referred to in sub-section (3) shall be considered by the Regional Transport Authority unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the person making such representation. (5) When any representation such as is referred to in sub-section (3) is made, the Regional Transport Authority shall dispose of the application at public hearing at which the applicant and the person making the representation shall have an opportunity of being heard either in person or by a duly authorised representative. A perusal of the above provisions reveal that the application for the grant of a permit has to pass the following stages, namely, - (1) On receipt of the application, which has to be made atleast six weeks before the date the permit is to be effective, the R. T. A. makes the same available for inspection at its office and also publishes it in the prescribed manner: (2) The R. T. A. announces the time schedule for receipt of representations and for consideration of the application and the representations. The date for consideration so fix shall not be less than 30 days from its publication the application is disposed of by the R. T. A. at public hearing where opportunity of being heard is given to the applicant and the persons making the representations. In this setting of 57, the expression "during the pendency of the application" has to be construed. Mr. R. N. Munshi has cited the case of K. Prakashan v. Secretary R. T. A. (1) of the Andhra Pradesh High Court, which has given a restricted meaning to the expression "pendency the application to mean the period from the date of hearing to the actual date of grant of permit. ". The learned Single Judge of the said High Court has said:- "the proximity of pendency of application is when R. T. A. is actually seized of the matter by hearing as contemplated under Section 57 (5) of the Act. The vulnerable period is from the date of hearing by R. T. A. to actual date of grant of permit. " Mr. Vyas had, on the other hand, invited my attention to Sri Ram v. R. T. A. (2) and M/s Shiv Bus Service v. R. T. A. , Jodhpur (3 ). In Sri Ram v. R. T. A. , Kan Singh, J, has said:- "section 62 came up for consideration before a Full Bench of this Court 1961 R. L. W. 16: (AIR 1961 Raj. 98 FB), It was decided therein that the first proviso relates to clause (c) only, while the second proviso to the present matter. There fore even to meet a particular temporary need it will not be open to the Regional Transport Authority to grant temporary permit if an application for grant of a permit under Section 46 is pending at the material time. " In M/s. Shiv Bus Services S. K. Mal Lodha J. after noticing the judgments of this Court has said:- "it is thus, clear from the aforesaid decisions that the Resolution of the R. T. A to grant temporary permits on the routes in regard to which applications for grant of non-temporary stage carriage permits were pending was without jurisdiction and when an order was passed patently without jurisdiction, then the bar of alternative remedy of revision would not stand in the way of granting relief to the petitioner in a petition under Articles 226 & 227 of the Constitution. " In J. T. Cooperative Society v. R. T. A. (5), Dave, J. with whom Sarjoo Prasad C. J. agreed observed as under:- "the meaning and purpose of the first proviso is to direct the RTA that if an application for a non-temporary permit under sec. 56 of s. 54 of the Act is presented for any route or area, then it should be decided expeditiously, according to law, and so long as it remains pending, no temporary permit should be given under any circumstances to the applicant for non-temporary permit or to any other person in respect of the said route or area, in the name of, or under the guise of, meeting a particular temporary need under clause (c ). " ;