JUDGMENT [ENTITY], J.
1. This is an appeal from the judgment and order of [ENTITY], J. dismissing the petitioner [ENTITY]'s application under [SECTION] of the [ACT] for a writ to quash the order of the Appellate Sub-Committee of the State Transport Authority, West Bengal Burdwan, dated July 2, 1959.
2. The petitioner applied for the permit of a stage carriage for Midhabpur Masagram route in Burdwan. The Regional Transport Authority, Burdwan, granted permit to the petitioner and refused the application of respondents 4 and 5 [ENTITY] and [ENTITY]. The oider of the Regional Transport Authority made on August 16, 1958 reads as follows :
Sl. No. 6 (respondents 4 and 5) has got permits for two Trucks and serial No. 7 (appellant) holds a bus route permit of this region. It is found that Sl. 7's (appellant's) grandfather used to possess this route, but owing to some difficulty of his own he preferred to surrender it The R.T.A. considered his claim as preferable and grant the permit for the route in favour of the applicant in serial No. 7, Sri [ENTITY].
Hence resolved that one permit be granted to Shri [ENTITY] of Sure-Kama."
3. Then there was an appeal and the Appellate Sub-Committee allowed the appeal filed by respondents [ENTITY] and [ENTITY] on July 2, 1959. In dealing with this claim, the Appellate Sub-Committee of the State Transport Authority made the following order:
"In our opinion the order of the R.T.A. cannot be upheld. In dealing with the case of the Appellant, the R.T.A. had presumably in mind the provisions of [SECTION] of the [ACT], but that rule simply lays down that in granting a Stage Carriage or a Contract Carriage Permit preference should be given to a person who has no permits as compared with a person who holds one or more Permits. The primary object of that rule is to ensure even distribution of Stage Carriage and Contract Carriage Permits. Admittedly the Appellant Party has got no other Stage Carriage Permit, whereas the Respondent No. 2 has one such Permit within this region.
The correct application of the rule in question would, therefore mean giving preference to the Appellant party over the Respondent. Apart from this, we do not consider that the fact that the applicant's grandfather used several years ago to hold a Permit on a certain route which he could not carry on for personal reasons, is any sufficient ground for showing preference to his grandson as compared with other applicants. In our opinion, in the present case, the appellants were the most appropriate Party to whom the Permit should have been granted among all the applicants.
The order of the R.T.A. is set aside and it is, directed that the Permit to the Respondent No. 2 should be cancelled and the Permit should be granted to the Appellant Party."
4. Against this order, the petitioner moved this Court under [SECTION] of the [ACT] and [ENTITY], J. dismissed the petitioner's application. Three points were urged before the learned Judge. The first one was that the appeal of respondents 4 and 5 against the order of the R.T.A was under [SECTION] of the [ACT] and as such the Appellate Sub-Committee could only vary the order of the R.T.A. to the extent of granting of a permit to the respondents 4 and 5 without disturbing and cancelling the one granted to the petitioner. That point is no longer material and is covered by authorities such as [PRECEDENT], . It has not also been pressed before us in appeal.
5. The second point was that the Appellate Sub-Committee had gone wrong in failing to take note of the fact that [SECTION] of the [ACT] on which it relied gives the right to prefer a person without a permit to one holding a permit when "other conditions were equal" and it was urged that as the Appellate Committee had said nothing in its order about the other conditions being equal and as on the facts of the case, it must be held that the other conditions were not equal, therefore, the Appellate Committee acted without jurisdiction. The learned Judge found against the appellant.
6. The third point that was urged before the learned Judge was that [SECTION] was inconsistent with the provisions of [SECTION] of the [ACT] and as such was ultra vires. That was also overruled by the learned Judge.
7. The facts briefly are that the Regional Transport Authority advertised the proposed grant of one Stage Carriage Permit on the route Masa-gram-Madhabpur. Seven applications were received including one from the appellant. Four of the applicants were rejected for good reasons with which we are no longer concerned in this appeal. So far as the appellant and respondents 4 and 5 are concerned here, the order was made as quoted above.
8. The Regional Transport Authority of Burdwan, under the [ACT], while inviting applications for a permit for running a Stage Carriage on Masagram to Madhabpur route some time in 1957, imposed three conditions to be fulfilled by the applicants. Those three conditions Were (1) knowledge of Motor mechanism and possession of a driving licence; (2) the driving of the vehicle to be either by the applicant himself or a member of his family, and (3) production of evidence of a binding arrangement with a workshop for repairs and maintenance of the vehicle. It is essential to emphasise at this stage that, as between the appellant and respondents 4 and 5 in this appeal there is no dispute that each one of them satisfied all these three conditions. They were, therefore, equal so far as these conditions are concerned.
9. What is urged in this appeal is first that the appellant already holds another permit for stage carriage in this region, whereas the respondents 4 and 5 do not, and therefore the appellant has the experience which the latter have not and secondly that the maternal grandfather of the appellant had a permit and therefore these two considerations tilt the balance of conditions in favour of the petitioner as the more appropriate person to get the permit in preference to the respondents 4 and 5. These are the only conditions supposed to make the appellant "unequal with respondents 4 and 5. I shall presently deal with both these considerations but before doing so, let me quote the exact language of [SECTION], and dispose of some preliminary contentions based on the interpretation of that Rule.
10. [SECTION] of the [ACT] reads as follows :
"Limitation for the grant of stage carriage or contract carriage permits :
(1) When applications for a permit in respect of a stage carriage or a contract carriage have been received from a person holding one or more permits in any one or more regions, areas or routes and from a person having no such permit) other conditions being equal, preference shall be given to the latter.
(2) [SECTION] and this rule as regards grant of permits shall not apply to State Government."
This rule was amended on September 10, 1956. by inserting the following words after "State Government" :
or to a Co-operative Society specifically exempted in this behalf by the State Government in the Home (Transport Department.)"
11. Alter the amendment of this [SECTION] was effected, [SECTION], which is the relevant section with which this appeal is concerned, of the [ACT] was amended by Act 100 of 1956 introducing inter alia a proviso stating:
"Provided that other conditions being equal an application for a stage carriage permit from a cooperative society registered or deemed to have been registered under any enactment in force for the time being shall, as far as may be, be given preference over applications from individual owners."
This particular amendment of the Act came into force on February 16, 1957, while the rule was amended on September 10, 1956.
12. The first contention of the appellant before us is that the order of the Appellate Authority did not come to a finding that other conditions were equal within the meaning of [SECTION], as quoted above. The rule itself does not require that any order is to be recorded that other conditions-are equal. In fact, the rule does not relate to any order that is to be passed either by the R. T, A. or the Appellate Authority. It lays down an imperative guide to the authorities concerned in cases where other conditions are equal who shall get the preference. The very fact that [SECTION] was being applied by the R. T. A. and its Appellate Authority shows that other conditions were equal, otherwise attraction of [SECTION] would be uncalled for. Admittedly the petitioner appellant already holds a stage carriage permit within this, region in the Madhabpur-Burdwan route, while admittedly respondents 4 and 5 do not" hold any stage carriage permit. It is a case of competition between a permit-holder and a non-permit-holder for a stage carriage permit within the plain meaning of [SECTION]
13. Reliance was placed in this connection or certain authorities which may be briefly reviewed at this stage. Reference was made to the decision of the learned single Judge [ENTITY], J. in [PRECEDENT], . The learned Judge observed at p. 552 of that report (Cal WN) : (at p. [SECTION]3 of AIR) on [SECTION] of the [ACT] as follows:
"But this is subject to an important qualification, viz., "other conditions, being equal". In other words, it is only between two persons who are equal in every other respect that the question of preference under [SECTION] arises, and it does not arise where the other conditions are not equal. For example a person may have no permit but may be otherwise quite an undesirable person for the issue of a permit, on a person may have one or more permits but he may be so efficient that for the benefit of the travelling public, it maybe more desirable to issue the permit to him. As I have had occasion to remark before, in another case, the duty of the authorities in issuing permits, is subject to the overriding condition that everything should be done to confer the maximum benefit upon the travelling public, that is to say, the public utilising the particular route, area Or region, where the permit is being granted. This is the paramount consideration, and must take precedence over all others. Therefore, there is no question of a mechanical calculation, namely, to count and compare the number of permits possessed by applicants. Other circumstances must be considered as indicated above. It is only when all conditions are equal, namely, that it does not affect the interests of the travelling public as to who gets the permit that the Rules of priority and precedence are to be applied."
14. Now, no question here arises of any mechanical application of number of permits about" which the learned Judge seems to be speaking in that decision. Nor, again, does any question here arise of any undesirable person getting a permit, because it is nobody's case that either the appellant or the respondents 4 or 5 is an undesirable person. Nor again is it asserted or even alleged that anyone among the contestants is a public danger. Here the conditions, so far as they were expressly imposed, namely, the three conditions quoted above, are equally satisfied by all the rival claimants. The only question of inequality urged is the previous possession of a bus route permit of this region and a hereditary claim drawn from a grandfather which are supposed to make the appellant's case better than the claim of the respondents 4 and 5. Now the Regional Transport Authority and the Appellate Authority have both considered this aspect and there is no question of any mechanical application or calculation or counting of the number of permits that each applicant had. The case therefore, does not help the appellant at all.
15. It may only be added here that public interest is undoubtedly a guiding consideration in the matter of granting permits under [SECTION] of the [ACT]. [ENTITY], J. in [PRECEDENT], , observed:
"It is to be remembered that under [SECTION] of the Act, a Regional Transport Authority in deciding whether to grant or to refuse a permit shall have regard, amongst other things, to the interest of the public generally and the advantages to the public of the service to be provided. In fact, this, section puts "the interest of the public generally as one of the very first matters to which regard must be paid when a Regional Transport Authority is considering an application for a stage carriage permit, but public interest is a concept of wide import. The question where among otherwise equal applicants, there are persons who have more than one permits, then preference for the non-permit-holder may be justified by reasons of public interest arid not criticised on the ground of mere mechanical counting. Public interest may be answered by public interest. It is not public interest to encourage private monopoly. If, in this case, the fourth and the fifth respondents are to be excluded because they hold no stage "carriage permit, then in the name of public interest under [SECTION] of the [ACT] once a person has a permit, he will always on the strength of that public interest be in a better position to continue to exclude others who never had such permits. It is in my view legitimate public interest to see that permits for public transport are evenly and equitably distributed among otherwise equal citizens or claimants and not to allow them to be concentrated in the few private hands already holding permits.
16. In this case, the question arose straight on the records. Respondents Nos. 4 and 5 have no stage carriage permit at all, they having only experience in plying motor trucks. It is therefore, urged that they have no experience in the matter of running buses for stage carriage. It is argued on behalf of the appellant that he has another stage carriage permit in a different route. It is precisely to meet such a case that [SECTION] of the [ACT] was framed. The rule itself provides that where there is a competition between a permit-holder and a non-permit-holder, then, other conditions being equal, the non-permit-holder as to be preferred. The reasons behind this preference can only be that in the matter of permits, it is not the policy of the Legislature to encourage monopoly or a closed ring among private individuals. The expression "other, conditions being equal" in [SECTION] of the [ACT] can only be interpreted by emphasising the word "other" which means that the conditions which have to be equal do not include a condition that one has one or more permits and the other has none. Because, that is the very condition which is excluded by the word "other" and by reason of the express preference in case of competition between a permit-holder and a non-permit-holder. Here the whole case of the appellant was based on the fact, first, that he has a permit and he is a permit-holder and therefore has experience. But that itself makes [SECTION] apply to him and when he is competing with respondents 4 and 5, who have no such permit the rule says preference shall be given to respondents 4 and 5. The appellant's second argument is that the condition which makes him unequal with respondents 4 and 5 is that his grandfather had a permit. The fact that his natural grandfather bad a permit does not, in our view, make the grandson a more experienced person in public interest to run a stage carriage. Running a stage carriage or a bus is not to be confused with a craft where skill is supposed to run on hereditary lines.
17. Reference was made on behalf of the appellant to the decision of the Supreme Court in , as being an authority to suggest that the Transport Authority must record a finding: under [SECTION] that other conditions are equal. We do not read that decision to be such an authority, because, in the first place, it does not deal at all with [SECTION] of the [ACT] and, secondly, because it does not say that a finding should be recorded as such. The appellant tried to use the observations at p. 534 of the report (SCA) : (at p. [SECTION]8 of AIR), which read as follows :
As between the appellant and respondent No. 2 neither the Regional Transport Authority nor the Board recorded a finding as to which of them had the better facilities. for transport operation or that such facilities as existed between them were Of equal merit. The State Government did not have, therefore, the advantage of knowing, on the face of the orders of these authorities, what view they took of this matter. Even if it is assumed that their Orders meant that the facilities for operation as between the appellant and respondent No. 2 were of equal merit, still the State Government was not in a position to know On what material this, opinion was based or that it was a reasonable view."
18. But these observations must not be torn out of their context In fact there the decision is really against the very view that the appellant is contending before us. It was observed by the learned Judge there at pages 534-535 of the report (SCA) : (at p. [SECTION]8 of AIR) :
"In the conflicting claims of the appellant and respondent No. 2 concerning the facilities available to them for operation of the bus service, the State Government was bound to decide, in the interest of the public generally, which of these had the better facilities. It was within the scope of its authority to decide this and a court in certiorari proceedings ought not to interfere with that decision. To hold that the opinion of the Regional Transport Authority and the Board that the facilities for operation were equal as between these persons was a reasonable view would be to constitute the court as the final authority in a matter, in which, by the provisions of the Act, that function was accorded to the State Government. We are not prepared therefore to say that the state Government acted in excess of its statutory authority."
19. These observations are really against the appellant. The fact that here [SECTION] was applied by the Transport Authority itself shows that they proceeded on the basis that the conditions were equal and, therefore, they gave preference to the non-permit-holder compared to the permit-holder. I have already said that it is not necessary under this rule that the order which they made must also record that finding, nor doss the Supreme Court say so. The above observations of the Supreme Court were made in connection with [SECTION] of the [ACT].
20. It was then contended on behalf of the appellant that [SECTION] of the [ACT] implies that preference should be given to a person who already holds a permit by relying on the expression:
"the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending;"
[SECTION] of the [ACT], as quoted above, does not lead to that conclusion. It only says that "a Regional Transport Authority shall, in considering an application for a stage carriage permit, have regard to the following matters," and then proceeds to provide in Sub-clause (e) the clause quoted above, that the Regional Authority shall have regard to the operation by the applicant of other transport services. But it is wrong to conclude from this text that to have regard to this fact means giving a preference on that ground. Indeed it is a relevant fact or which may, in an appropriate case, such as in the case of a competition between a permit-holder and a non-permit-holder where other conditions are equal, go against as a factor and may be a ground for refusing the permit and selecting the non-permit-holder, who has no experience of the operation of other transport services, provided of course he satisfies the other conditions or requisites laid down in [SECTION] and the conditions that may be imposed by the Transport Authority. The words "shall have regard to" mean that the Regional Transport Authority must consider and bear in mind the matters Specified in [SECTION] of the Act. They however do not mean in; addition that the Transport Authority must not consider any other relevant circumstance or matter. They mean that consideration of the matters enumerated in [SECTION] of the Act is indispensable but they do not prevent in addition consideration of all relevant circumstances. The decision of a learned single Judge [ENTITY], J. in the case of [PRECEDENT] also construed the words "shall have regard to" in [SECTION] as not exhaustive where at p. 732 (of Cal WN). : (at p. 641 of AIR) it was said :
"It appears to me that the words "shall have regard to" in [SECTION] imply that the section is not exhaustive. The requirement of the section is that the matters specified in the section must be taken into consideration; in other words, the primary duty of the Regional Transport Authority is to take into consideration the matters specified. But it does not follow that the hands of the Regional Transport Authority are tied to the consideration of these matters alone and they must shut their eyes to everything else."
21. In the view of construction I am taking "to have regard to" the fact of operation by the applicant of other transport services does not mean that the existence of that fact must tilt the balance an favour of his claim to get a permit and, as I have said before, may in appropriate cases' be a factor against him. This view of the construction can be supported: by illustrations drawn from different other sub-clauses of [SECTION] of the [ACT], as for instance in (f) where the words appear " .shall also take into consideration representations made by persons already providing passenger transport facilities by any means or by any association representing persons interested in the provision of road transport facilities etc." Obviously, the word "representation" in that context means it may be a representation for or against the applicant. The words "shall have regard to" mean that where this representation is for or against, it should be considered by the Regional Transport Authority while dealing with an application for a stage carriage permit.
22. The next point advanced by the appellant is that [SECTION] is inconsistent with [SECTION] of the [ACT] and, in particular, with the proviso to [SECTION] of the Act already noted above. [SECTION] of the Act has six Sub-clauses (a), (b), (c), (d), (e) and (f). On proper consideration of these different sub-clauses, it does not appear to me that [SECTION] of the [ACT] is inconsistent with any one of them. The first Sub-clause (a) deals with the interest of the public generally. I have already said that public interests are not jeopardized when, other conditions being equal, a non-permit-holder is preferred to a permit-holder in the larger public interest to avoid private monopolies in the matter of permits for public transport. It is also essential to remember that interests of the public generally are considered from the very beginning and the very announcement for the issue of a permit of a stage carriage in a particular route, does take into consideration the public interest because it is unlikely that without any public demand or public need that any permit will be issued for a stage carriage in a particular route. The words other conditions being equal" in [SECTION] also imply and involve that public interests are equal among the contesting claimants for the permit. Therefore [SECTION] by providing that in the case of otherwise similarly or equally situated claimants the one not having a permit shall be preferred.
does not, in our view, infringe [SECTION]. For the same reasons, it does not infringe [SECTION] of the Act. No question of infringing Sub-clause (c) of this section arises in this case under [SECTION] The same remark applies to Sub-clause (d). We have already dealt with the arguments why [SECTION] does not infringe [SECTION] of the Act. Nor doss it infringe, in our view, Sub-clause (f) portions of which have already been quoted.
23. [SECTION] of the [ACT] is made under the rule making provisions of this statute. All that it says is that when other conditions are equal a preference is earned by a non-permit-holder against a permit-holder in the matter of a permit. The rule appears to be inoffensive so far as the purpose of the statute is concerned or its numerous provisions. If other conditions are equal, then this preference offends no rule or section of this statute. No section in. the statute expressly or impliedly prohibits the giving of such a preference. It must be emphasised that the rule only gives a preference, but that preference is not prohibited by the statute.
24. There is, however, one aspect of this case which requires separate consideration. It has been argued by the appellant that [SECTION] conflicts with the proviso to [SECTION] of the Act in respect to the Co-operative Societies. This question of conflict really does not arise for decision in the present appeal. No Co-operative Society is involved in this case. Left to ourselves, we would have liked not to express any opinion on the question whether there is any conflict between this proviso for Co-operative Societies- in [SECTION] and [SECTION] of the [ACT]. But on this point we find that the learned Judge has proceeded to construe this proviso and has given the result of his interpretation by saying:
"If a case could arise in which the other conditions are equal and the only two applications to be considered are a co-operative society and an individual when neither of them hold a permit the former would clearly exclude the latter; if the Co-operative Society holds a permit as against an individual who does not, the latter will be entitled to preference."
25. As at present advised, we do not think we can assent to that construction. In the first place the competition between a Co-operative Society and another person can really never come within [SECTION], because the conditions between these two can never be equal for the simple reason that after the coming into operation of the proviso by the amendment, a Co-operative Society is given a status or a condition which makes it unequal and that condition or status is a privileged status or condition. The proviso itself says :
"Provided that other conditions being equal, an application for a stage carriage permit from a co-operative society registered or deemed to have been registered under any enactment in force for the time being shall, as far as may be, be given preference over applications from individual owners."
Now, this proviso expressly stipulates that when all other conditions are equal as between a Co-
operative Society and any other individual claimant for permit, the Co-operative Society shall have the preference. This statutory preference, for the Co-operative Society, therefore, will always create a condition which will never make a Co-operative Society equal to any other, individual claimant and the question therefore can never arise under [SECTION] which insists that other conditions must be equal before it can be applied.
26. It is then said that by reason of the amendment of the rule, before the proviso itself came into force, there seems to be a tacit implication that [SECTION] may be applied to a Co-operative Society or else the amended rule on September 10, 1956, would not have introduced that variation. This argument does not appear to be sound because of two reasons. The first reason is that introduction) of the Co-operative Society under [SECTION] is only of a particular type of Co-operative Society, which is specifically exempted by the State Government. [SECTION] and [SECTION] of the [ACT] make express provisions by which the Government is given power to exempt a Cooperative Society from any of the requirements of that Act regarding registration or may, by general or special order, exempt any registered society from any of the provisions of the Act with or without modifications. That being so, the Co-operative Society had to be introduced by the amendment of [SECTION], because the proviso only applied to a Co-operative Society which was registered Or deemed to have been registered under any enactment in force and it could be said without the amendment that a Co-operative Society which lias been exempted from the provisions of registration would not come within the meaning of that proviso. Secondly, it has to be emphasised that the amended rule introducing the Co-Operative Society in [SECTION] was anterior to the very amendment itself in respect of the proviso for Cooperative Societies in [SECTION] of the Act.
27. Lastly it is contended on behalf of the appellant that [SECTION] is unconstitutional because it violates [SECTION] of the [ACT]. This argument, in our view, has no substance. [SECTION] contains a reasonable and rational classification. It discriminates between two separate classes, one the permit-holders and the other the non-permit-holders, and at the same time ensures equality by saying that other conditions must be equal. In that context the separation of permit-holders from non-permit-holders can never be regarded as introducing inequality among classes or persons similarly situated. It is now settled law that [SECTION] of the [ACT] contains prohibition of unequal treatment of persons who are similarly situated. We are, therefore, satisfied that [SECTION] is not unconstitutional.
28. The appeal is, therefore dismissed with costs, hearing-fee being assessed at ten gold-mohurs.
[ENTITY], J.
29. I agree.