# P. KUMARASWAMY v. STATE TRANSPORT APPELLATE TRIBUNAL, MADRAS AND ANR

- **Citation:** [1976] 2 S.C.R. 214
- **Court:** Supreme Court of India
- **Decided:** 1975-10-08
- **Bench:** V. R. Krishna Iyer, A. C. Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-kumaraswamy-v-state-transport-appellate-tribunal-madras-and-anr-6767
- **Pages:** 4

## Headnote

Moto.r Vehicles Act 1939, Sec. 47(1) Sec. 68A(a)-Rules framed by Tamil
Nadu gdi:ernment under Motor Vehicles Act-Whether rules can be discarded
in the name of Public interest in Sec. 47(1)-Whetheir rules to be supplemented
by public interest-'°rder of the Tribunal excluding a relevant factor whether
lia.ble to be qua.shed.
Many applicants for one permit for a short route pressed their claims before
the Regional Transport Authority under the Motor Vehicles Act, 1939. The
Transport Authority evaluated the relevant merits and awarded the permit to
the appellant. The system of marks under the Rules framed under the Act by
the Tamil N adu Government, prescribes various qualifications for applicants
for perinits for passenger transport under the Act.
The rule emphasises that
the paramount consideration of the interest of the public as enshrined in section
47 (1) must be given full weight while awarding permits. One of the rules ·
provides that preference shail, other things being equal, be given in respect
of the routes to persons. who have not held any permit for stage carriage. One
of the considerations which must weigh with the authorities
is the business
of technical experience in the field of motor operation. The appellant secured 4 marks as against 3.1 marks secured by resJ?Ondent No. 1. In addition,
the appellant was entitled to a preference for bemg a new entrant since the
route was a short one. The Appellate Tribunal reversed the order of the Transport Authorities and granted the permit to respondent No. 2 and set aside
the permit granted in favour of the appellant on the ground of. public interest
in the matter of passenger transport service and held that the appellant's experience as lorry operator cannot be equated with respondent No. 2's experience in Bus operation. This view was taken by the Tribunal following section
47(1).
The appellant filed a Writ Petition in the High ·court which was rejected.
On appeal byl Special Leave,
HELD : (1) The rules or guidelines could not be discarded in the name
of section 4 7 (1). The Rules made are really in implementation of section
47(1) but is not exhaustive of all the considerations that would prevail in a
given . situation. The jurisdiction is given to the Tribunal to take note of
other considerations in public interest flowing out of section 47(1). The Rules,
are, however, not to be discarded but they can be supplemented or outweighed.
In ilie name of public interest something opposed to the Rules cannot
be
done. The Appellate Tribunal has actually contravened rule 155 (3) which
accords 2 marks for applicants who have a certain experience in road transport service. Road Transport Service is defined by secton 68A (a) and it makes
no distinction between the type of transport vehicles in which experience has
been gained whether it be of passenger transport or a lorry transport. The
distinction made between passe_nger transport and lorry service experience by
the Tribunal is illegal. A relevant factor has thus been wrongly excluded.
The order of the Appellate Tribunal is liable to be quashed on the well-worn
ground that material consideration if ignored makes the order vulnerable. More•
over there is an apparent mis-construction of the relevant rule. The respon·
dent' No. 1 stated that there were many other grounds which he could have
urged before the Tribunal but which have not been adverted to by the Tribunal because he could have urged before the Tribunal but which have not been
adverted to by the Tribunal because respondent No. 2 succeeded on one ground.
It is, therefore, fair that the case should be remanded to the Appellate Tribunal
for being heard de novo.
[216-E-H, 217A-E]
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P. KUMARASWAMY v. S.T.A.T. (Krishna Iyer, J.)
215
CIVIL ArPELLATE JURISDICTION: Civil Appeal No. 1266 of 1975.
Appeal by special leave from the Jud,gment. and ~rder dated 3rd
March, 1971 of the Madras High Court m Wnt Pet;twn "No. 583 of
1971.
K. S. Ramamurthi, A. T. M. Sampath and E. C. Agarw(l/a,

## Text

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214
P. KUMARASWAMY
v.
STATE TRANSPORT APPELLATE TRIBUNAL, MADRAS AND
ANR.
October 8, 1975
(V. R. KRISHNA IYER AND A. C. GUPTA, JJ.]
Moto.r Vehicles Act 1939, Sec. 47(1) Sec. 68A(a)-Rules framed by Tamil
Nadu gdi:ernment under Motor Vehicles Act-Whether rules can be discarded
in the name of Public interest in Sec. 47(1)-Whetheir rules to be supplemented
by public interest-'°rder of the Tribunal excluding a relevant factor whether
lia.ble to be qua.shed.
Many applicants for one permit for a short route pressed their claims before
the Regional Transport Authority under the Motor Vehicles Act, 1939. The
Transport Authority evaluated the relevant merits and awarded the permit to
the appellant. The system of marks under the Rules framed under the Act by
the Tamil N adu Government, prescribes various qualifications for applicants
for perinits for passenger transport under the Act.
The rule emphasises that
the paramount consideration of the interest of the public as enshrined in section
47 (1) must be given full weight while awarding permits. One of the rules ·
provides that preference shail, other things being equal, be given in respect
of the routes to persons. who have not held any permit for stage carriage. One
of the considerations which must weigh with the authorities
is the business
of technical experience in the field of motor operation. The appellant secured 4 marks as against 3.1 marks secured by resJ?Ondent No. 1. In addition,
the appellant was entitled to a preference for bemg a new entrant since the
route was a short one. The Appellate Tribunal reversed the order of the Transport Authorities and granted the permit to respondent No. 2 and set aside
the permit granted in favour of the appellant on the ground of. public interest
in the matter of passenger transport service and held that the appellant's experience as lorry operator cannot be equated with respondent No. 2's experience in Bus operation. This view was taken by the Tribunal following section
47(1).
The appellant filed a Writ Petition in the High ·court which was rejected.
On appeal byl Special Leave,
HELD : (1) The rules or guidelines could not be discarded in the name
of section 4 7 (1). The Rules made are really in implementation of section
47(1) but is not exhaustive of all the considerations that would prevail in a
given . situation. The jurisdiction is given to the Tribunal to take note of
other considerations in public interest flowing out of section 47(1). The Rules,
are, however, not to be discarded but they can be supplemented or outweighed.
In ilie name of public interest something opposed to the Rules cannot
be
done. The Appellate Tribunal has actually contravened rule 155 (3) which
accords 2 marks for applicants who have a certain experience in road transport service. Road Transport Service is defined by secton 68A (a) and it makes
no distinction between the type of transport vehicles in which experience has
been gained whether it be of passenger transport or a lorry transport. The
distinction made between passe_nger transport and lorry service experience by
the Tribunal is illegal. A relevant factor has thus been wrongly excluded.
The order of the Appellate Tribunal is liable to be quashed on the well-worn
ground that material consideration if ignored makes the order vulnerable. More•
over there is an apparent mis-construction of the relevant rule. The respon·
dent' No. 1 stated that there were many other grounds which he could have
urged before the Tribunal but which have not been adverted to by the Tribunal because he could have urged before the Tribunal but which have not been
adverted to by the Tribunal because respondent No. 2 succeeded on one ground.
It is, therefore, fair that the case should be remanded to the Appellate Tribunal
for being heard de novo.
[216-E-H, 217A-E]
·
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•
P. KUMARASWAMY v. S.T.A.T. (Krishna Iyer, J.)
215
CIVIL ArPELLATE JURISDICTION: Civil Appeal No. 1266 of 1975.
Appeal by special leave from the Jud,gment. and ~rder dated 3rd
March, 1971 of the Madras High Court m Wnt Pet;twn "No. 583 of
1971.
K. S. Ramamurthi, A. T. M. Sampath and E. C. Agarw(l/a, for the
A
Appellant.
B
B. Sen and Vineet Kumar for Respondent No. 2.
The Judgment of the Court was delivered by
KRrs1-iNA IYER, J.
A single fundamental flaw in the order of
the Appellate Tribunal (under the Motor Vehicles Act, 1939), constrains us to allow this Appeal challenging the High Co;.irt's refusal to
interfere with the grant of the permit in favour of Respondent No. 2.
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Many applicants for one permit for a "short route" pressed their
claims before the Regional Transport Authority which evaluated the
relevant merits and awarded the permit to Applicant No. 6, who is
the Appellant before us. On appeal, Applicant No. 3, who is respondent No. 2 before us, succeeded.
Whereupon, a Writ Petition was
filed without succees and the disappointed appellant has come to this
Court by special leave .
The system of marks, under the Rules framed under the Act by the
Tamil Nadu Government, prescribes the various qualifications for applicants for permits for passenger transport under the Motor Vehicles
Act, Rule 155-A cr,ystallises these considerations and describes them
as guiding principles for the grant of stage carriage permits. The rule
itself emphasizes what is obvious, that the paramount consideration of
the interest of the public, as enshrined in Section 47 (1), must be given
full weight while awarding permits. That meam to say that the variou~
factors set out in rule 155-A are subject to Section
47(1 ).
This is
clarified by sub-rule ( 4) of Rule 155-A, which runs thus :
"After marks have been awarded under sub-ruic (3), the
applicants shall be ranked according to the total marks
obtained by them and the application shall be disposed of in
· accordance with the provisions of sub-section (l) of Section
4'i','.
There is no doubt that bus transport is calculated to benefit the
public and it is in the fitness of things that the interest of the travelling
public is highlighted while evaluating the relevant worth of the various
claimants.
There are two circumstances which require to be stressed because
they have been overlooked by the· appellate tribunal in its disposal of
the comparative merits of the rival claimants. Sub-rule (5)(i) of Rule
155-A states that preference shall, other things being equal, be given
in the disposal of applications in respect of short routes .......... to
persons who .have not held any permit for a stage carriage.
Among
the considerations which must weigh with the authorities entrusted with
the power to grant permits, is business or technical experience in the
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SUPREME COURT REPORTS
[ 197 6] 2 S.C.R.
field of motor vehicles operation. Rule 155-A in Item (D), sub-rule (3)
specifically states "two marks, shall be awarded to the applicants wh'O
have business or technical experience in the road transport -,en:ice as
defined in clause (a) of Section 68-A of any class of transport vehicles
for a period of ten years or more".
Having regard to the marking system as .adumbarated in rule 155-A,
a broad sheet was apparently prepared and the appellant before us
(Applicant No. 6) secured 4 marks as against the second respondent
(Applicant No. 3) who got 3.10 marks. Ordinarily, therefore, the
applicant who got higher marks should have won tl1e battle. Moreover,
in a short route, as in this case, the rule contemplates preference being
given ro a new entrant, of course, other things being equal.
In this
case, therefore, the appellant befurc us, being admittedly a new entrant,
was entitled to preference, the route being a short one, other things being equal. The short question that, therefore, fell before the Appellaie
Authority was as to whether other things were equal.
This aspect
attracted the attention of the Appellate Authority, but its consideration
unfortunately was unsatisfactory. The Appellate Tribunal observed that
though the Applicant No. 6 had secured higher marks than Applicant
No. 3 : "I am inclined, having regard to the public interest in the matter
of passenger transport service, to agree with the appellant's contention
that the respondent's experience as lorry operator cannot be equated
with the appellant's experience in bus operation." This view, according
to him, is tenable under Section 4 7 ( 1) since this matter involves grant
of bus permit. "The fact that the appellants are bus operators, must
necessarily over-ride the fact of the respondent being a lorry operator.
Though the route in question is a short route and there is a new entrant
like the respondent, the respondent cannot· automatically be preferred
in the absence of other things being equal, in accordance with clause
5(1) of Rule 155-A".
.
The error that has crept into the order of the Appellate Tribunal
consists in thinking that the rules or guidelines could be discarded in
the name of Section 47(1). Actu.ally, Rule 155-A is in implementation
of Section 47(1), but is not exhaustive of all the considerations that
will prevail in a given situation. Therefore, it is that there is jurisdiction given to the Tribunal to take note of other considerations in public
interest flowing out of Section 47(1). Not that the sub-rules of Rule
155-A can be discarded, but that they may be supplemented or outweighed. Not that, in the name of public interest, something opposed
to the sub-rules of Rule 155-A can be done but that, within the combined framework of Section 47(1) and rule 155-A, there is scope for
play of the jurisdiction of the Tribunal to promote public interest. Viewed in this perspective the Appellate Tribunal has actually contravened
Rule 155(3){D). That provision expressly accords two marks for
applicants who have a certain experience in road .transport service.
'Road transport service' is defined in clause (a) of Section 68-A and
this definition is specifically incorporated in Rule 155-A (3) (D). It
follows that the rule makes no distinction between the type of transport
vehicle in which experience has been gained whether it be a passenger
transport or a lorry transport. The view taken by the appellate tribunal
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P. KUMARASWAMY \!. S.T.A.T. (Krishna Iyer, J.)
217
that because the permit is for passenger transport, lorry scr~ice exiperience, even if it falls under Rule 155-A ( 3) (D), can be ignored,
is therefore, illegal. :A relevant factor has thus been wrongly excluded .
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Connected with the same flaw is what we have earlier indicated
namely, that the Appellate Tribunal· has held that the new entrant
(Applicant No. 6) need n'Ot be given the preference he is eligible for
under Rule 155-A (5) because other things are not equal. According
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to him, other things not equal because Applicant No.
6 has lorry
transport experience while Applicant No. 3 has bils transport experience. We have already explained that this is a fallacy. In this view,
the preference that flows in favour of applicant No. 6 under Rule 155A (5) should n'Ot have been denied to him for the reasons set out by
the Tribunal.
For these reasons, the order of the Appellate Tribunal is liable to
be quashed. The well-worn ground that mat material consideration, if
ignored, makes the order vulnerable, applied. Moreover, these is' an
apparent mis-construction of the relevant rule by the Appellate Tribunal, as we have explained above. ·
This does not mean that this Court will award the permit to. one
party or the other. That is the function of the statutory body created
under the Motor Vehicles Act. Moreover, as Mr. Sen, appearing 'for
the second respondent, has rightly pointed out, his client had many
other grounds to urge before the Appellate Tribunal to establish his
superiority, which have not been adverted to by the Appellate Tribunal
because on one ground he succeeded. It is 'Only fair, therefore, that
the case is remanded to the Appellate Tribunal for being heard de novo
wherein both sides (no other applicant will be heard), will be entitled
to urge their respective claims, for the single permit that is available
to be awarded.
The only point that remains to be decided is as to what is to happen
for bus operation during the period the Appeal is to M heard and the
further proceedings which may follow. We direct that the second respondent be allowed to ply the bus as he is doing it now until disposal
of the appeal by the Appellate Tribunal. It is represented by Mr. ·
Ramamurthy, appearing for the Appellant, that his client had been
plying the bus on the route on an earlier occasion till the High Court
dismissed the Writ Petition. If there had been any period when both
oper~tors had been plying their buses on the route during the course
of this litigation, especially at the time the Writ Petiti'On was. pending
in the High Court, it will be open to the Appellate Tribunal to allow
the Appellant before us (Applicant No. 6) also to ply his bus on the
same route. With these directions, we allow the Appeal and direct the
Appellate Tribunal to dispose 'Of the motor vehicles Appeal No. 542 of
1970. Parties will bear their own costs throughout.
P.H.P.
case remanded.
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