CUMBUM ROADWAYS P Vs. SOMU TRANSPORTS P LTD

JUDGEMENT

(1.) THIS writ appeal is preferred against the order of Veeraswami J. allowing the writ petition filed by the first respondent herein, Somu Transport (P) Ltd. Madurai. The route between Madurai and Sholavandan via Samayanallur was notified for grant of a stage carriage permit. There were 32 applicants, and the Regional transport authority granted the permit to the 24th applicant before it, the Somu transports (P.) Ltd. the first respondent herein. The appellant herein, the Cumbum roadways (P.) was the 30th applicant. Ten of the applicants preferred appeals to the State Transport Appellate Tribunal. In the memorandum of grounds to the appeal preferred by the appellant No. 9 before the State Transport Appellate tribunal, S. Mohammed Ismail, it was contended that one of the share-holders of somu Transports (P.) Ltd. Sri K. Somasundaram, was having 100 equity shares in the respondent company, that he was a director of the respondent company at the time of the incorporation and that he resigned his directorship only on 12-10-1960 after making the application. It was also alleged that the said Somasundaram continued to be the managing director of Sri Arupukottai Jaya Vilas (P.) Ltd. and also a director in the respondent company. It was contended that the respondent company was not a new entrant but was benami for Arupukottai Sri Jaya Vilas (P.) Ltd. This point was also raised by the third appellant before the State Transport Appellate Tribunal, Ahalya Transports (P.) Ltd. In respect of this ground the Regional Transport Authority remarked that the point urged was not raised by the applicants in the representations made with reference to the notification under S. 57 (3) of the Motor Vehicles Act. It is admitted that this objection to the respondent as benamidar for Arupukottai Sri jaya Vilas (P.) Ltd. was not raised in the representations or during the hearing by the Regional Transport authority. A preliminary objection was taken before the state Transport Appellate Tribunal that the State Transport Appellate Tribunal was not competent to consider the grounds, which were not raised in the representations and not urged before the Regional Transport authority. This objection was overruled by the State Transport Appellate Tribunal. The State transport Appellate Tribunal after considering the facts came to the conclusion that the respondent company was under the control and management or influence of Arupukottai Sri Jaya Vilas (P.) Ltd. , which was a fleet owner. The State transport Appellate Tribunal following two Government Orders, G. O. Ms. 432 home dated 5-2-1953 and G. O. Ms. 526 Home dated 20-2-1956 held that the grant of the permit to a company like the respondent company would only lead to the concentration of permits in the hand of a few big operators, which was not in the public interest. On that ground the State Transport Appellate Tribunal set aside the order granting the permits to the respondent.

(2.) THE respondent preferred W. P. No. 890 of 1961 challenging the validity of the order of the State Transport Appellate Tribunal setting aside the permit granted in its favour by the Regional Transport Authority. In its petition the respondent submitted that under S. 57 (4) of the Motor Vehicles Act, the Transport Authority was barred from taking into account against any applicant a matter, which was not raised in the representations filed under S. 57 (3) of the Act, and, as the State transport Appellate Tribunal was only an appellate authority, the bar would equally apply to it. The respondent also challenged the finding of the Appellate tribunal that the company was the benamidar of Arupukottai Sri Jaya Vilas (p.)Ltd. It also submitted that, the Appellate Tribunal being a quasi judicial authority, its discretion and judgment cannot be fettered and directed by administrative instructions issued by the Government of Madras, and the Appellate Tribunal was in error in basing its judgment on the Government Orders issued in respect of the grant of the stage carriage permit. Neither before Veeraswami J. who heard the writ petition nor before us the finding of fact that the respondent company was benamidar to Arupukottai Jaya Vilas (P.) Ltd. was challenged. It was urged before Veeraswami J. that Section 57 (4) of the Motor Vehicles Act prohibited the Regional Transport authority from taking into account a representation not made in writing before the appointed date and that the regional Transport Authority would be acting in excess of its jurisdiction, if a ground not taken in the representation was allowed to be urged before it. The learned Judge after discussing the authorities on the question felt that the appellate Tribunal could not be said to have committed any error of jurisdiction in allowing the point as to benami to be taken for the first time and deciding the same on the basis of additional evidence but the learned Judge found himself bound by the decision in W. A. No. 95 of 1958 and following that decision held that the Appellate Tribunal committed an error of jurisdiction in allowing a new point to be raised in the appeal. The appellant preferred a writ appeal, and because of the conflicting authorities the matter is placed before a Full Bench.

(3.) TWO questions were raised for consideration in this appeal. The first question is whether the Regional Transport Authority has jurisdiction to entertain a new plea from an objector, which he failed to raise in his representations under S. 57 (4) of the Motor Vehicles Act. The second question that arises for consideration is whether the respondent could challenge in the writ petition the validity of the order of the State Transport Appellate Tribunal having raised the grounds before the State Transport Appellate Tribunal.