N PAPPU REDDIAR Vs. REGIONAL TRANSPORT AUTHORITY SALEM

JUDGEMENT

(1.) IN W. P. Nos. 2025 and 2916 of 1971 writs of prohibition are sought and in W. P. No. 2534 of 1971, now converted into a Civil Revision Petition, a writ of certiorari is asked. It is agreed that the facts in W. P. No. 2534 of 1971 as it was originally filed may be looked into for purposes of appreciating the contentions of parties. The petitioner is a transport operator. The Regional Transport Authority salem, invited applications under Section 57 (2) of the Motor Vehicles Act for the grant of stage carriage permit on the Town Service route Namakkal to Ponneri and fixed the last date for receipt of applications in due form as December 11, 1970. The petitioner and four others, including the 1st respondent, were applicants for the grant. It is common ground that the petitioner sent the application in due form as also the necessary proof of payment of the prescribed fee which should accompany such applications. Thereafter the applications were notified under section 57 (3) of the Act and in the said notification it was made clear that the 1st respondent did not pay the prescribed fee. The notification under Section 57 (3), as usual, invited representations and fixed December 31, 1970, as the last date for filing such representations. It is also not disputed that the 1st respondent did not pay the prescribed fee prior to the December 11, 1970, but is said to have paid the same only on December 30, 1970. The petitioners and other who were applicants and who were therefore obliged to make representations on the date of hearing, namely, December 31, 1970, brought to the notice of the Regional transport Authority about the defect in the application of 1st respondent. But the regional Transport Authority entertained the application of the 1st respondent and granted the permit to the 1st respondent. The claim of the petitioner is that even in the award of marks under Rule 155-A of the Madras Motor Vehicles Rules, the regional Transport Authority did not properly apply the rule or the guidelines set in Section 47 of the Act. But in these proceedings the merits have not been canvassed and it is therefore unnecessary for me to deal with it. As against the grant made by the Regional Transport Authority in favor of the 1st respondent the petitioner filed an appeal before the State Transport Appellate Tribunal the 2nd respondent herein, and again reiterated that the application was not in due form and was defective ab initio as the prescribed fee has not been paid within the period of limitation prescribed. But the State Transport Appellate Tribunal confirmed the grant in favor of the 1st respondent and it appears that it decided the appeal even on merits against the petitioner. The present Writ Petition now converted into a Civil Revision Petition is directed against the order of the State transport Appellate Tribunal ignored the main noticeable feature in the case that the application of the 1st respondent itself was defective and therefore was not maintainable by the original authority and if the defect goes to the root of the matter, there was no jurisdiction for either the original authority or the appellate authority to hear the representations of the 1st respondent on such a defective application and decide thereon. The facts are similar in the other two Writ Petitions excepting for the nature of the route and the different dates prescribed for the forwarding of the application and entertainment of the representations thereon. Those petitions are for the issue of Writs of prohibition restraining the original authority from entertaining the defective application in the sense that the prescribed fee was not paid in the first instance as called for and that representations on such a defective application cannot be heard on the only ground that the payment has been made before the date of hearing of the representations.

(2.) THE main contentions of the petitioner are that the petitioner is aggrieved because his rights as an operator and as an applicant are jeopardized if he is set against an applicant whose application is defective in the eye of law and as prescribed by the Act and the rules made thereunder and such a defect goes into the very root of the matter resulting in lack of jurisdiction on the part of the original authority to entertain the said application. The second objection is that rule 153-B (ii) framed under the Motor Vehicles Act in the State of Madras is imperative and non-compliance with the same as provided therein makes the application defective ab initio and hence it is no application at all on which a decision could be taken after the same is entertained. The third objection is that the prescription as to time is mandatory and non-compliance with it is fatal to the application and consequently it cannot be looked into for any purpose. Contending contra learned counsel for the respondents will say that the rule is only directory and on a strict reading of the rule it is seen that if a treasury receipt is produced on or before the date of the receipt of the representations specified in the publication under Section 57 (3) of the Act, then such an application is entertainable and a decision could be taken thereon notwithstanding the initial defect in the application, namely, it was not accompanied by the prescribed fee when it was presented as directed. Factually it is said that this argument was not put forward in the manner it is done before this court and therefore such an objection ought not to be entertained. Lastly, it is contended that the petitioner in each of these petitions cannot be said to be a person aggrieved.

(3.) I shall briefly refer to the relevant statutory provisions. Section 46 of the Motor vehicles Act, dealing with application for stage carriage permit, prescribes certain particulars and the manner in which such application has to be made to the appropriate authority. Section 46 (f) is residuary in nature as it refers to such other matters as may be prescribed. Under Section 68, the State Government is given the power to make rules for the purpose of carrying into effect the provisions of the Act. Inter alia the rule making power includes the prescription of a fee to be paid in respect of applications for permits and Section 68 (2) (c) prescribes the forms to be used for such purposes. In the form prescribed, one of the items enumerated therein runs as follows: "i/we enclose cash/cheque/challan/money-order receipt for rs. . . . . . . . . . . . . . . . . . being the prescribed fee. " it is not in dispute that the court-fee has been prescribed as Rs. 250/- for such applications for the grant of permits. Rule 153-B (ii), made in 1965, which is relevant for our purposes, may be extracted for ready reference: "where an application for the grant of or the counter-signature of a stage carriage permit or a public carrier's permit made in the prescribed form, but not accompanied by the prescribed fee shall not be rejected on that account, but the omission shall be specifically pointed out in the publication of the application to be made under subsection (3) of Section 57 of the Act so that the applicant may have an opportunity of submitting a Treasury receipt for the prescribed fee on or before the date for the receipt of representation specified in the publication, failing which the application will stand rejected:" this rule undoubtedly contemplates that an application for the grant of a stage carriage permit amongst others should be accompanied by the prescribed fee, but negatively it is stated that if it is not so accompanied it shall not be rejected on that account, but the omission shall be specifically pointed out in the notification under sub-section (3) of Section 57 so that the applicant may have an opportunity of bridging the gulf by submitting the treasury receipt for the prescribed fee on or before the date for the receipt of the representations. In the light of the above statutory provisions the contentions have to be considered.