MOHALI CARGO Vs. STATE TRANSPORT COMMISSIONER

JUDGEMENT

(1.) THE present writ petition is directed against the order of the State Transport Appellate Tribunal, Punjab Chandigarh dated 26th September, 1991 and appended as Annexure P-2 to the petition, whereby the order of the State Transport Commissioner, Punjab Annexure P-1, has been set aside and a permit on the Mohali Patiala route has been given in favour of respondent No. 3 after withdrawing it from the petitioner. The facts giving rise to the petition are reproduced below:

(2.) A number of operators including the petitioner and respondent No. 3 applied for the grant of the aforesaid permits. The matter was considered by the State Transport Commissioner in the meeting held in Patiala in the month of November, 1988 and after hearing the respective claims, order dated 10th December, 1988 appended as annexure P.1 to the petition, was pronounced, vide which two permits with two return trips daily were given to the Pepsu Road Transport Corporation and one permit with one return trip to the petitioner. The two points that weighed with the Commissioner were (i) that it would be desirable to grant a permit to a fresh entrant so as to inject fresh blood and to introduce an element of competition and (ii) that the petitioner being located at Mohali (which was one of the terminal on the route) would be in a better position to serve the travelling public. The case of respondent No. 3 as also some of the other applicants who were big operators and running large fleets was not considered by the State Transport Commissioner. Aggrieved by the order Annexure P-1 the petitioner as also certain other applicants, preferred appeals before the Tribunal, which found vide its order Annexure P-2 that the reasons given by the Commissioner for the grant of three route permits in favour of the petitioner were not convincing and against the considerations countenanced by Section 47(1) of the Motor Vehicles Act, 1939 (hereinafter referred to as the "Act"). The Tribunal also found it difficult to understand as to how a fresh entrant could render more efficient! service to the travelling public in preference to an experienced operator and a specific reference was made to Section 47(1) (e) of the Act which provided that one of the relevant considerations for the grant of stage carriage permits would be the operation by the application of other transport services. Keeping in view the respective merits of the parties, the tribunal withdrew the route permit from the petitioner and granted the same to respondent No. 3 instead. It has been averred in the petition as also at the time of arguments addressed by Mr. M.S. Khaira, learned Senior Advocate appearing for the petitioner, that the Tribunal fell deeply in error in making the impugned order as the past operation of respondent No. 3 did No. t inspire confidence inasmuch as during the period 1983-1987 it had fallen deeply into financial difficulties which had necessitated the surrender of a large number of permits. It was also asserted that huge tax arrears amounting to more than rupees fifteen lacs were due from the respondent for the period above-mentioned. While admitting that the operations of respondent No. 3 after 1988 have been without blemish, it has been asserted that the past conduct of respondent No. 3 did not mean the immediate past conduct but even the remote past had to be looked into. It has also been stated that the Commissioner was fully entitled to grant the permit in favour of the petitioner as a first entrant in view of the fact that it would have been unwise to create a monopoly in favour of respondent No. 3, who admittedly was a very big operator and was also operating on a part of the route in question. In furtherance of this argument, reliance has been made by the counsel on Sri. Rama Vilas Service (Private) Limited v. C. Chandrasekaran and Ors. which ahs been subsequently followed in R.K.V. Motors and Timbers (Private) Limited v. M. V. Balachandra Kurup and Ors.

(3.) AFTER hearing counsel for the parties, I find no merit in this petition. It has been urged by the counsel for the petitioner and not denied by the respondent that the performance of respondent No. 3 during the period 1983-1987 had been very poor on account of various reasons set out in the pleadings. It has also been conceded that after 1988 when the respondent made a substantial recovery, the performance has been without complaint. It is also not denied that prior to 1983 the performance of the respondent as an operator had been very good. Admittedly the date on which the matter interse the petitioner and respondent No. 3 has to be considered is the date on which the Commissioner granted the permits to respondent No. 3 i.e. 10th December, 1988. Concededly the arrears of tax due from respondent No. 3 had been cleared in September, 1987 and in December of that year, a large number of permits which had been taken away were restored, as already mentioned above, counsel for respondent No. 3 has stated at the bar that even the penalty which had been imposed on his client has since been cleared. Even accepting the argument of the counsel for the Petitioner that not only the recent, but also the remote past must be looked into in order to determine the merits of an application, it is apparent to me that respondent No. 3 who had been operating for more than 45 years had except for a brief period of five years a very successful operation.