IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.10.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.22079, 22080, 22081, 22082, 22460, 22461, 22462, 22463 and 22464 of 2009 and Connected Miscellaneous Petitions A.Kandasmy ...Petitioner in w.P.22079 of 2009 Muthurathnasabapathy ...Petitioner in w.P.22080 of 2009 S.M. Eswaramoorthy ...Petitioner in w.P.22081 of 2009 N. Nithyanandam ...Petitioner in w.P.22082 of 2009 T. Chandrasekaran ...Petitioner in w.P.22460, 22461, 22462 of 2009 T. Subramaniam ...Petitioner in w.P.22463 of 2009 J. Lalithamani ...Petitioner in w.P.22464 of 2009 Vs. 1.The State Transport Appellate Tribunal, Chennai - 600 104. 2.The Regional Transport Authority, Coimbatore (Tirupur Region). ...1st and 2nd Respondents in W.P.22079 and 22080 of 2009 M/s.Sri Kirthiga Transports, 10, R.V.Sathyamurthy Nagar, Kangayam Road, Tirupur - 641 604. ...3rd Respondent in W.P.22079 of 2009 Tiruppur Bus Transport No.10 R.V. Sathyamurthy Nagar, Kangayam Road, Tiruppur- 641 604 ...3rd Respondent in W.P.22080/2009 SRI SIVACHALAPATHY TRANSPORTS 10 R.V. SATHYAMURTHY NAGAR KANGEYAM ROAD TIRUPPUR. 641 604 ...1st respondent in w.P.22081 of 2009 THE REGIONAL TRANSPORT AUTHORITY TIRUPPUR COIMBATORE. THE STATE TRANSPORT APPELLATE TRIBUNAL CITY CIVIL COURT BUILDINGS CHENNAI 104. https://hcservices.ecourts.gov.in/hcservices/ THE TAMILNADU STATE TRANSPORT CORPORATION LTD COIMBATORE. ...2to 4 Respondents in W.P.22081, 22082 of 2009, TVl. Thiruppur Bus Transports 10 R.V. Sathyamurthy Nagar, Kangayam Road, Thiruppur- 641 604 ...1st Respondent in W.P.22081/09 The state Transport Appellate Tribunal Chennai THE REGIONAL TRANSPORT AUTHORITY (TIRUPPUR REGION) COIMBATORE . ...1st and 2nd Respondents in W.P.22460, 22461, 22462, 22463, 22464/2009 SRI KIRTHIGA TRANSPORTS 10 R.V.SATHYAMURTHY NAGAR KANGAYAM ROAD TIRUPPUR-641 604. ...3rd Respondent in W.P.22460 of 2009 TAMIL NADU STATE TRANSPORT CORPORATION LIMITED COIMBATORE. ... 4th Respondent in w.P.22460, 22461, 22462, 22463/2009 M. Sivakumar 2-D Thennampalayam Thiruppur ...3rd Respondent in W.P.22461/2009 Sivachalapathy Transports 10, R.V. Sathyamurthy Nagar Kangeyam Road, Thiruppur ...3rd Respondent in W.P.22462/2009, 22463, 22464/2009 Writ Petition preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, calling for the records on the file of the first respondent, made in R.P.No.123, 124, 122, 126, 127, 128, & 130 of 2005 dated 17.07.2009 and to quash the same. (in W.P.22079, 2080, 22460 to 22464/2009) Writ Petition preferred under Article 226 of the Constitution of India to issue a writ of certiorari calling for the records of the 3rd respondent relating to R.P. No. 129, 134/2005 dt 17.7.2009 setting aside the order of the 2nd respondent made in R. No. 64861, 64860/A3/2004 dt 21.10.2004 granting a mini bus permit for the route Tiruppur Old Bus Stand to Palladam Road (kunnangalapalayam Pirivu) in favour of the petitioner and remitting the matter to the 2nd respondent for re consideration. (W.P.22081, 22082/2009. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.M.Krishnappan, Senior Counsel for Mr.K.Hariharan in W.P.Nos.22079 and 22080/2009 for Mr.S.Raveekumar in W.P.Nos.22460 to 22464/2009 Mr.G.Rajagopalan, Senior Counsel for Mr.S.Govindaraman in W.P.Nos.22081 and 22082/2009 For Respondents : Mr.V.R.Kamalanathan, AGP for R2 in all the WPs Mr.C.R.Krishnamoorthy for R3 in W.P.Nos.22079 and 22080, 22460 to 22464/2009 for R1 in W.P.No.22081/2009 Mr.M.Palani for R1 in W.P.Nos.22081 & 22082/2009 for R3 in W.P.Nos.22461 to 22463 of 2009 Mr.T.Padmanabhan for proposed respondent C O M M O N O R D E R These batch of writ petitions were filed by the Motor Vehicle Operators running vehicles in the unified districts of Coimbatore, challenging the common order passed by the State Transport Appellate Tribunal, Chennai (for short STAT) dated 17.07.2009 and various revisions petitions filed by the contesting respondents. 2. The writ petitioners are the respondents in the revision petitions. The name of the writ petitioner, the writ petition number and the corresponding revision petition in which they were aggrieved is shown in the following tabular column:- https://hcservices.ecourts.gov.in/hcservices/ Sl .N o Name of the petitioner W.P.No. in this court Revision Petition No. before STAT 1 A.Kandasamy W.P.No.22079/2009 R2 in R.P.No.123/2005 2 A.Muthurathna Sabapathy W.P.No.22080/2009 R2 in R.P.No.124/2005 3 S.M.Eswaramoorthy W.P.No.22081/2009 R2 in R.P.No.129/2005 4 N.Nithyanandam W.P.No.22082/2009 R2 in R.P.No.134/2005 5 T.Chandrasekaran W.P.No.22460/2009 W.P.No.22461/2009 W.P.No.22462/2009 R2 in R.P.No.122/2005 R.P.No.126/2005 R.P.No.127/2005 6 T.Subramaniam W.P.No.22463/2009 R2 in R.P.No.128/2005 7 J.Lalithamani W.P.No.22464/2009 R2 in R.P.No.130/2005 3. The revision petitions filed by the contesting respondents were taken on file as R.P.Nos.122 to 124 of 2005, 126 to 130 of 2005 and 134 of 2005 and were tried by the STAT by consolidating all the revision petitions and after due notice to the present writ petitioners, who are respondents in the revision as well as to the State owned Transport Corporation and the Regional Transport Authority, Tiruppur at Coimbatore were disposed of by a common order dated 17.07.2009. The STAT, the first respondent herein held that the orders passed by the Regional Transport Authority are not valid and accordingly set aside those orders. The matters were remanded to the Regional Transport Authority for fresh consideration in the light of the observation made by the STAT. 4. The contesting revision petitioners submitted before the Tribunal since the order of Regional Transport Authority (for short RTA) was set aside and matters were remitted for fresh consideration, then extension of the operation of mini bus by the petitioners cannot be granted by the RTA as the permits given by him was held to be illegal by the Tribunal. But however the present writ petitioners, who are respondents before STAT contended that since they were operating the mini bus all these years and during the pendency of the revision petitions before the STAT, no stay was in force, they should not be ordered to stop the vehicle immediately. 5. Accepting their contention, the STAT held that three months' time may be granted to operate the buses and no prejudice https://hcservices.ecourts.gov.in/hcservices/ will be caused to the contesting respondents. Pending fresh consideration by the RTA, (Tiruppur Region), Status Quo was directed to be maintained till then. This was on the hope the matters could be disposed of within three months. But instead of approaching before the RTA, in view of the order of remittal, the petitioners have approached this Court, challenging the common order dated 17.07.2009. 6. The first four writ petitions were admitted on 29.10.2009. Pending the writ petitions, this Court granted an interim stay on 09.11.2009 with an assertion that the main writ petitions themselves will be taken up for hearing. The said interim order came to be extended from time to time since the main writ petitions were not disposed of. The interim order was extended on 16.11.2009, 30.11.2009, 07.12.2009 and 14.12.2009 and the main writ petitions were directed to be posted during the first weeks of January 2010. Aggrieved by the grant of interim stay, the contesting respondents have filed a vacate stay application in M.P.No.1 of 2011. They have also filed a counter affidavit. 7. Subsequently, W.P.Nos.22460 to 22464 of 2009 came to be filed and they were admitted on 03.11.2009. Finally, they came to be grouped together with the earlier writ petitions and were listed for final disposal. 8. Heard the arguments of Mr.M.Krishnappan, learned Senior Counsel appearing for Mr.K.Hariharan and Mr.S.Raveekumar, counsel for the petitioners, Mr.G.Rajagopalan, learned Senior Counsel appearing for Mr.S.Govindaraman, for some of the petitioners, Mr.V.R.Kamalanathan, learned Additional Government Pleader appearing for Regional Transport Authority, M/s.M.Palani and C.R.Krishnamoorthy, learned counsels appearing for the contesting respondents and Mr.T.Padmanabhan, learned counsel for the proposed respondent. 9. The contentions raised by the learned Senior Counsel for the petitioners were as follows:- It was contended that when the RTA, Tiruppur region considered the applications of the petitioners for grant of permit, there was no proper guideline for the authorities to consider the application in case of more than one application. However, this Court in a judgment has held that the first-cum-first served will be a relevant factor but at the same time, it is within the jurisdiction of the RTA to adopt the first-cum-first served or some other criteria so long as the criteria was not arbitrary. In the present case, the RTA adopted the seniority criteria based on the direction issued by this Court and granted permit and such grant of permit was not arbitrary and it is within the jurisdiction of the RTA. The Tribunal was wrong in reversing the criteria adopted by the RTA especially when it is not arbitrary and consistent with similar direction by the Courts. The STAT ought not to have remanded the https://hcservices.ecourts.gov.in/hcservices/ matter. The STAT, being an Appellate Authority, it has the same jurisdiction as that of the original authority and hence, it is not a fit case for remanding the matter and decision should have been rendered on the basis of the records available before it. Therefore, STAT has failed to exercise its jurisdiction. 10. It was also contended that the contesting respondents, who filed the revision applications have no locus standi to challenge the grant made in favour of the writ petitioners as there were several other applicants, who admittedly submitted applications earlier to that of the contesting respondents. The persons, if at all aggrieved can be those who are earlier in the seniority list. In the absence of those aggrieved persons challenging the grant made in favour of the petitioners, STAT ought not to have entertained the revision applications at their disposal. In the absence of the contesting respondents being directly aggrieved, a revision petition cannot be entertained as if it is a public interest litigation. Even after remand, there is no guarantee that the contesting respondents will get the permit. Therefore, merely setting aside the grant in favour of the petitioners and without any relief to the revision petitioners, the exercise of the power by the STAT was unwarranted and futile. 11. Reliance placed by the STAT on the judgment of the Division Bench in W.A.(MD)Nos.135 and 136 of 2006 dated 02.08.2006 in R.Shanmugaiah v. P.S.Lakshmanakumar and others (since reported in 2007 WLR 832) was not proper and the direction issued therein will have no application to the case on hand. 12. Even assuming that the said judgment holding that the statutory definition contained in Rule 3(o) of the Tamil Nadu Motor Vehicles Rules 1989, defining a 'mini bus' to mean a stage carriage when it comes to the question of considering the grant of permit, it must be held that mini bus service is also Stage Carriage Service in its operation in a permitted route. Therefore, the term 'stage carriage service' would take within its fold the operation of all types of carriages in any particular route when such carriages are being operated covering different stages in that particular road providing transport facilities for all those who wish to avail the services as passengers. 13. Further, the Division Bench holding that Rule 248 of the Rules fixing schedule of timings will apply to all service including express service or mini bus service or regular bus service, similarly, the RTA is bound to adhere to the provisions contained under Sections 70,71 and 72 of the Tamil Nadu Motor Vehicles Act (for short M.V.Act) in relation to receiving an application for a Stage Carriage permit and there cannot be any separate provisions for the grant of permit. It was held that the said judgment can only be having prospective operation from the date of judgment viz., 02.08.2006 and it will not have any https://hcservices.ecourts.gov.in/hcservices/ application to the case of the petitioners who got permits earlier to the judgment rendered by the Division Bench. 14. It was also submitted during the pendency of the revision petitions before the STAT, Coimbatore District has been bifurcated and a new District namely Tiruppur has been carved out. Therefore, the contesting respondents can get permit only from RTA Tiruppur. Hence, by remanding the matter to RTA, no relief will be gained by the contesting respondents and as on date, there is no approved modified scheme for Tiruppur District authorising the grant of mini-bus permits. It was further submitted that STAT in order to put an end to the entire litigation should have called for report from the second respondent regarding the vacancy position available as on the date and based on the vacancy ought to have granted permit to the contesting respondents, but at the same time confirming the grant of permit in favour of the writ petitioners. The contesting respondents were not granted permits as there was no vacancy as on the date when the petitioners were granted permit. Even while the contesting petitioners filed revision petitions, they have not given details regarding overlapping of the Rules in the served sector. 15. The contesting respondents stated that the writ petitioners got their permit in the year 2004 disregarding the well recognised principles of seniority, rulings of the court and other statutory provisions under the M.V.Act. The contesting respondents have filed applications earlier to that of the petitioners and are senior to the writ petitioners. It was contended that their applications were not considered on grounds of want of vacancy. It had granted permits to the writ petitioners out of turn. This necessitated the contesting respondents to file a revision before the STAT and the STAT allowed the revision petitions and directed the RTA to decide the matter afresh and also to maintain status quo only for a period of 90 days. Even before any decision rendered by the RTA, the petitioners moved this Court almost after the end of the status quo period and had obtained the stay order. 16. The proposed impleading respondent has also submitted that the RTA utilising the pendency of the writ petitions granted extension on a non-existence permit even up to 2015 in some cases by abusing the power of his office. It was further submitted that the contesting respondents had locus standi to move the Tribunal. The contesting respondents against the rejection of grant of permit moved this Court with writ petitions directly (they were advised they should avail statutory remedy of revision before STAT). Therefore, they withdrew the writ petition and filed revision application well in time. The RTA cannot ignore the broad principles laid down by the Courts in the matter of grant of permit and he cannot ignore the well recognised principles of seniority. The contesting respondents had filed applications earlier to the https://hcservices.ecourts.gov.in/hcservices/ petitioners. But the petitioners moved this Court with a direction to consider their representation and that does mean that the writ petitioners' application alone should be considered and all that this Court directed was to consider in accordance with law. By such direction to consider, an ineligible person cannot get grant ignoring the claims of eligible persons. If the petitioners can have such a direction to be construed to mean that their application should be taken out of turn, then when the contesting respondents got similar direction were not given the same favour. In fact the Division Bench of this Court in W.A.(MD)Nos. 459 to 463 of 2005 and batch cases heard along with writ petitions in the first case relating to M.Khadhar Batcha v. The Regional Transport Authority, Madurai, vide order dated 23.12.2005, in paragraph 22 held as follows:- in paragraph 22 is as follows:- "22. ....Therefore, it is not open to the petitioners to contend that the consideration of seniority should be limited to those persons who were granted permits by virtue of the orders of STAT or orders of this Court. Any order passed either in a writ petition or by STAT directing grant of permit can only be construed to mean grant in accordance with law, which in turn would undoubtedly mean confirmity with the provisions of Rule 166 and 167 and also the criteria of 'first come', 'first served'." Therefore, it was futile on the part of the writ petitioners to contend that the grant made in favour of them was pursuant to the direction issued by this Court. 17. With reference to the judgment of the Division Bench in R.Shanmugaiah case (cited supra), it was stated that it is well settled that an interpretation of a legal provision relates back to the date of the law and it cannot be held to be prospective. The authorities are bound to follow the law laid down by the Division Bench whenever they deal with cases where such interpretation comes up for consideration. With reference to the bifurcation of the district and formation of new Tiruppur District, it was stated that the formation of a new district does not alter the present case and it is unnecessary to go into the said issue. In the earlier scheme framed by the Government vide G.O.Ms.No.1532 Home dated 17.11.1999 reserves the number of mini bus to be operated by private sector with a ceiling of 250 mini buses in the whole district which includes Tiruppur. Therefore, no separate scheme is necessary for consideration of the pending applications of the contesting respondents and these are matters to be considered by the RTA while deciding the issue on remand. 18. In this context, reliance was placed upon the judgment of the Division Bench in W.A.No.1440 of 2009 and batch cases [The https://hcservices.ecourts.gov.in/hcservices/ Secretary, Regional Transport Authority, Tiruppur v. R.Ravikumar and others], wherein, the Division Bench approved the judgment given by a learned judge that even after bifurcation of the Coimbatore District and formation of Tiruppur District, even in the absence of any guidelines, the matter will have to be decided as it was in vogue before bifurcation. Therefore, he stated that there is no case for interfering with the order of remand and the issue can be considered by the RTA. 19. Mr.T.Padmanabhan, learned counsel for the proposed respondent stated even when the matters are pending before this Court, it was wrong on the part of the respondents to have renewed the permit in favour of the writ petitioners which is illegal and unexpected of a statutory authority like the RTA. 20. Mr.M.Krishnappan, learned Senior Counsel appearing for some of the writ petitioners submitted that the State Government has issued a New Comprehensive Scheme for the modification of the approved modified area Scheme, 1999 under the Tamil Nadu Motor vehicles Act by G.O.Ms.No.136 Home (Transport) dated 23.2.2011. Under the New Modified Scheme of 2011, the maximum number of routes permitted are 25,716 and existing permits and permits to operate Mini bus service on the routes to be formulated are left to the RTA and the new Comprehensive Scheme protect the existing operators. Therefore, it is unnecessary to disturb the petitioners by order of remand. 21. The learned Senior Counsel placed reliance on the judgment of the Supreme Court reported in (1992) 2 SCC 620 [Ram Krishna Verma v. State of U.P] to contend that any new scheme will operate against other persons other than the existing operators who have managed to ply the buses till the date of the Scheme. For this purpose, he placed reliance on the following passage found in Paragraph 10, which is as follows: "10. ......Consistent law laid down by this court is that draft scheme under Section 68-C and approved under Section 68-D of Chapter IV-A of the Repealed Act (Chapter VI of the Act), is a law and it has overriding effect over Chapter IV of the repealed Act (Chapter V of the Act). It operates against everyone unless it is modified. It excludes private operators from the area or route or a portion thereof covered under the scheme except to the extent excluded under that scheme itself. The right of private operators to apply for and to obtain permits under Chapter IV of the repealed Act (Chapter V of the Act) has been frozen and prohibited." 22. The learned Senior Counsel also referred to the judgment of the Supreme Court in reported in (1985) 1 SCC 270 [Lakshmi https://hcservices.ecourts.gov.in/hcservices/ Narayan Guin v. Niranjan Modak] for contending that the changes in law during the pendency of an appeal will have to be taken note of and will govern the rights of parties. He relied on the following passage found in paragraph 9, which is as follows:- "9. That a change in the law during the pendency of an appeal has to be taken into account and will govern the rights of the parties was laid down by this Court in Ram Swrup v. Munshi3 which was followed by this Court in Mula v. Godhu4. We may point out that in Dayawati v. Inderjit5 this Court observed: "If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the Court of trial as well as the Court of appeal must have regard to an intention so expressed, and the Court of appeal may give effect to such a law even after the judgment of the Court of first instance." Reference may also be made to the decision of this Court in Amarjit Kaur v. Pritam Singh6 where effect was given to a change in the law during the pendency of an appeal, relying on the proposition formulated as long ago as Kristnama Chariar v. Mangammal7 by Bhashyam Ayyangar, J., that the hearing of an appeal was, under the processual law of this country, in the nature of a re-hearing of the suit. In Amarjit Kaur6 this Court referred also to Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri8 in which the Federal Court had laid down that once a decree passed by a court had been appealed against the matter became sub judice again and thereafter the appellate court acquired seisin of the whole case, except that for certain purposes, for example, execution, the decree was regarded as final and the court below retained jurisdiction" Therefore, he contended that STAT ought to have considered the case on his own instead of remanding the matters for any fresh disposal. 23. Mr.G.Rajagopal, learned Senior Counsel adopting the arguments of Mr.M.Krishnappan, appearing for some of the petitioners contended that after amendment made to the M.V.Act the policy for grant of permit has been liberalised and permits should be granted to those who intend to enter the motor transport business and in the absence of any violation by the petitioners, their permits cannot be cancelled. For this purpose, he placed reliance on the judgment of the Supreme Court reported in (1992) 1 SC 168 [Mithilesh Garg v. Union of India and others] and relied on the following passage found in paragraph 9, which is as follows:- "9. ....The Act provides liberal policy for the grant https://hcservices.ecourts.gov.in/hcservices/ of permits to those who intend to enter the motor transport business. The provisions of the Act are in conformity with Article 19(1)(g) of the Constitution of India. The petitioners are asking this Court to do what the Parliament has undone. When the State has chosen not to impose any restriction under Article 19(6) of the Constitution of India in respect of motor transport business and has left the citizens to enjoy their right under Article 19(1)(g) there can be no cause for complaint by the petitioners." 24. Mr.Palani, learned cousnel appearing for the contesting respondents contended that the Tribunal had clearly laid down falsity of the claims of the writ petitioners and in para 22, it had set out the dates of application submitted by the contesting respondents and the dates of application given by the petitioners and the gap exceeds 3 to 4 years. The RTA had granted permit only on the basis of the direction issued by this Court and not as per the seniority list maintained. Therefore, it cannot be said that the RTA has adopted any fair procedure in the grant of permit. On this short ground, the writ petitions are liable to be rejected. He further submitted that the petitioners are not existing operators on the date when the scheme was published and without considering the objections, RTA could not have granted permit in their favour merely because there was a direction issued by this Court. For this purpose, the learned counsel placed reliance on the judgment of the Supreme Court reported in AIR 1971 SC 1662 [T.N.Raghunatha Reddy v. Mysore State Transport Authority] to contend that if a person is not an existing permit holder, he cannot be saved by any scheme. 25. He also referred to the judgment of a Division Bench of this Court reported in 1995 W.L.R