Civil Appeal No 1266 of 1975
Appeal by special leave from the Judgment and order dated 3rd March 1971 of the Madras High Court in Writ Petition No 583 of 1971
K section Ramamurthi A T M Sampath and E C Agarwala for the Appellant
B Sen and Vineet Kumar for Respondent No 2
The Judgment of the Court was delivered by KRISHNA IYER J
A single fundamental flaw in the order of the Appellate Tribunal under the  constrains us to allow this Appeal challenging the High Court s refusal to interfere with the grant of the permit in favour of Respondent No 2
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 success 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  Rule 155 A crystallises 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 given full weight while awarding permits
That means to say that the various factors set out in rule 155 A are subject to Section 471
This is clarified by sub rule 4 of Rule 155 A which runs thus After marks have been awarded under sub rule 3 the applicants shall be ranked according to the total marks obtained by them and the applications shall be disposed of in accordance with the provisions of sub section 1 of Section 47
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 5i 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 216 field of motor vehicles operation
Rule 155 A in Item D sub rule 3 specifically states two marks shall be awarded to the applicants who have business or technical experience in the road transport service 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 adumbrated 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 310 marks
Ordinarily therefore the applicant who got higher marks should have won the battle
Moreover in a short route as in this case the rule contemplates preference being given to a new entrant of course other things being equal
In this case therefore the appellant before 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 Appellate 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 47 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 51 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 471
Actually Rule 155 A is in implementation of Section 471 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 471
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 471 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 1553D
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 217 that because the permit is for passenger transport lorry service experience even if it falls under Rule 155 A 3 D can be ignored is therefore illegal
A relevant factor has thus been wrongly excluded
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 not be given the preference he is eligible for under Rule 155 A 5 because other things are not equal
According to him other things not equal because Applicant No 6 has lorry transport experience while Applicant No 3 has bus 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 155 A 5 should not 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 
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 be 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 and earlier occasion till the High Court dismissed the Writ Petition
If there had been any period when both operators had been plying their buses on the route during the course of this litigation especially at the time the Writ Petition was pending in the High Court it will be open to the Appellate Tribunal to allow thee 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
PHP case remanded


Summary:
Many applicants for one permit for a short route pressed their claims before the Regional Transport Authority under the 
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 Nadu Government prescribes various qualifications for applicants for permits for passenger transport under the Act
The rule emphasises that the paramount consideration of the interest of the public as enshrined in section 471 must be given full weight while awarding permits
One of the rules provides that preference shall 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 31 marks secured by respondent No 1
In addition the appellant was entitled to a preference for being 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 471
The appellant filed a Writ Petition in the High Court which was rejected
On appeal by Special Leave  HELD 1 The rules or guidelines could not be discarded in the name of section 471
The Rules made are really in implementation of section 471 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 471
The Rules are however not to be discarded but they can be supplemented or outweighed
In the name of public interest something opposed to the Rules cannot be done
The Appellate Tribunal has actually contravened rule 1553 which accords 2 marks for applicants who have a certain experience in road transport service
Road Transport Service is defined by section 68Aa 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 passenger 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 respondent 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 215