IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:27.04.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION No.20333 OF 2009 and M.P.No.1 of 2009 .. S.M.Govindaswamy .. Petitioner vs. 1.State Transport Appellate Tribunal, High Court Buildings, Chennai -600 104. 2.The Regional Transport Authority, Erode – 638 011 3.The Regional Transport Officer, Kollukattumedu, Lakkapuram (PO) Erode 638 002. 4.P.Vivekandan .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, calling for the records of the first respondent culminating in the order dated 07.07.2009 in I.A.No.17 of 2009 in App.No.53/2003, quash the same and consequently, direct the Tribunal to allow the same. For petitioner : Mr.T.Mohan For 4th respondent : Mr.M.Palani ORDER The writ petition is filed challenging the order of the first respondent State Transport Appellate Tribunal, dated 07.07.2009 passed in I.A.No.17/2009 in Appeal No.53 of 2003. The petitioner who is the Secretary of Makkal Nalam & Membattu Maiyam which is a society registered in the Tamil Nadu Societies Registration Act formed to create social awareness among the people campaigned in Erode focussing the rights of citizens under the Consumer Protection Act, 1985 has earlier filed W.P.No.12018 of 1996 for a direction to ensure town buses to ply on the routes stipulated in the permit. This Court by an order dated 01.10.2009 has directed the Regional https://hcservices.ecourts.gov.in/hcservices/ Transport Authority, the second respondent to initiate action under Section 72 of the Motor Vehicles Act and also to constitute an Expert Committee to study the traffic problems and suggest measures to solve the traffic congestion. It is stated that based on the recommendations of the Experts Committee, the second respondent on 14.09.2000 has ordered to avoid traffic congestion that town buses which are plied from Erode Bus-stand to P.S.Park (via) Nachiappan Street and Borough Road and on its return trip from P.S.Park to Bus Stand (via) Ex-clock tower, Nethaji Road and Sathy Road that the section from Sathy Road corner to Ex-clock tower on Nethaji Road be made on one way. The petitioner has objected to such direction since such diversion of the route from Erode Bus Stand to P.S.Park (via) Nachiappa Street and Borough Road would cause more problems to the public and submitted that to divert the course of the route from Erode Bus Stand (via) Ex-clock tower would be more beneficial only to the bus operators but not in the interest of public. As against the order of the second respondent dated 14.09.2000, the petitioner has filed an appeal before the first respondent tribunal and the same is pending for many years namely 10 years and therefore, the petitioner filed I.A.No.17 of 2009 for appointment of Commissioner before the first respondent and the said application came to be rejected by the first respondent by an order, dated 07.07.2009 which is impugned in the writ petition and it is challenged on various grounds that the Expert Committee report was of the year 2000 and the situation has now totally changed and therefore, the present position has to be studied only by a Commissioner and therefore, it is the case of the petitioner that if only the original permit route is insisted to be resorted to, the congestion problem to the public will be avoided and the said order of the tribunal is challenged also on the ground that access to transport is a right guaranteed under Article 21 of the Constitution of India and that cannot be denied by rejection of application filed for the purpose of appointment of a Commissioner. 2.It is the contention of Mr.T.Mohan, learned counsel for the petitioner that the impugned order of the tribunal has failed to take note of the fact that review has to be necessarily made about the traffic situation from that which was assessed in the year 2000 for which the tribunal is having substantial powers as per the rules and it is also his submission that even the Expert Committee reports are not available so as to decide the issue in a proper manner and in the interest of public. 3.On the other hand, it is the contention of Mr. M.Palani, learned counsel for the fourth respondent who is the permit holder that in cases where there is traffic congestion there is a right on the part of the authorities concerned for the purpose of deviation of route as per the Rule 248 and therefore, the order of the second https://hcservices.ecourts.gov.in/hcservices/ respondent in deviating the route cannot be said to be either invalid. It is also stated that in the Expert Committee the petitioner himself is a member and it is unfortunate for the petitioner to state that the Expert Committee report is not available. It is his further submission that when once the second respondent has passed the order of deviation from route taking note of the entire situation on fact and against which the petitioner has filed an appeal, it is ultimately, the appellate authority who has to decide such appeal filed against the order of the second respondent. By such application for appointment of Commissioner it would take away the right of the tribunal to decide the validity or otherwise of the impugned order of the second respondent. It is his submission that by appointing Advocate Commissioner the entire facts and circumstances of the case will be altered which cannot be permitted and therefore, according to him, the order of the tribunal is perfectly valid. It is also his submission that the order of the second respondent is to be tested by the tribunal and in such circumstances, the subsequent events are of not relevance. He would also rely upon the judgment of the Hon'ble Supreme Court in Rajesh D.Darbar and others Vs. Narasingrao Krishnaji Kulkarni and others reported in 2003 (7) SCC 219. It his submission that when once the variation route order has been issued, the same is under Section 72 of the Motor Vehicles Act by which vested right accrued to the permit holder and that cannot be taken away by making interim application and he would also rely upon a judgment of the Hon'ble Supreme Court in Rameshwar and others Vs. Jot Ram and others reported AIR 1976 SC 49. 4.It is his submission that the appellate authority being the statutory tribunal is seized off of the matter and there is no need for appointment of Commissioner to find out the existing position and the statutory appellate authority is expected to decide the validity or otherwise of the impugned order of the second respondent and not to decide about the changed circumstances for which, he would also rely upon the decision of the Hon'ble Supreme Court in State of West Bengal and others Vs.Ratnagiri Engineering Private Limited and others reported in 2009 (4) SCC 453 apart from the decision reported in 2008 (8) SCC 92 (State Bank of India and others Vs.S.N.Goyal). It is his further submission that this is not the forum to raise the public issue. It is also his submission that even though technically, the fourth respondent may not have any objection for the purpose of appointing Advocate Commissioner to find out the present position, it is on legal issue, such application is not permissible. 5.I have considered the submissions made on either side and perused the materials available on record and also given my anxious thought to the issue involved in this case. https://hcservices.ecourts.gov.in/hcservices/ 6.It is seen that in a batch of writ petitions including that of the present writ petitioner in W.P.No.12018 of 1996 along with the petitioner filed by various transport owners wherein the writ petitioner's case was for a direction against the transport authority to secure the plying of town buses belonging to various owners who were impleaded as respondents 6 to 41 therein via Erode Clock Tower as per the permit conditions while the transport owners have filed the writ petitions to forbear the authorities from interfering with the operation of stage carriage services to ply their vehicles in Erode town through various routes. This Court in the common order, dated 04.10.199 has taken note of the agreement reached between the respective counsel, has given certain directions to the Regional Transport Authority namely, the second respondent. The portion of the order is as follows: "2.It is agreed by the respective counsel that the Regional Transport Authority will initiate action under Section 72 of the Motor Vehicles Act for operation of various town routes depending upon the traffic potential, lie of the road, markets and other public places as well as thickness in population and all other relevant consideration with a view to ease congestion, free flow of traffic of all kinds of vehicle, issue a notice to the respective parties, hear them and thereafter pass appropriate orders according to law. 3.It is also open to the Regional Transport Authority to appoint an Expert Committee in consultation with the Superintendent of Police, District Collector and other public authorities to study the traffic problem and other ways and means. The study of the expert committee would also enable the authority to solve the traffic problem which Erode Town is facing due to population explosion in the Town. 4.The Regional Transport Authority shall initiate action within 90 days and thereafter within 150 days from the date of notification afford sufficient opportunity and pass orders in terms of the provisions of the Motor Vehicles Act and the Rules framed thereunder. To the said course, the counsel for the writ petitioners and respondents have no objection. This is recorded. 5.Pending the said statutory proceedings, with the consent of counsel for either side, the flow of traffic in particular the Town Services is Erode shall be regulated hereunder: https://hcservices.ecourts.gov.in/hcservices/ From P.S.Park From New Bus Stand Brough Road Sathi Road Manikoondu Nethaji Road Nethaji Road Manikoondu Sathi Road Nethaji Road Kutcheri Road New Bus Stand P.S.Park which course of traffic is suggested by the Regional Transport Officer as well as the representative of the Superintendent of Police to control the traffic. Though, there is some reservation by Mr.M.Palani and Mr.M.Krishnappan, this Court will be justified in accepting the suggestion which came from the Regional Transport Officer as well as the Superintendent of Police who are regulating the traffic in Erode Town as they are the authorities who are well aware of the traffic blockades and the population in the town. Hence, till the Regional Transport Authority passes the order of the town buses will follow the above course. 7.The interim direction is also passed with the consent of the writ petitioners including all the operators of the town buses as well as Makkal Nalam and Membattu Maiyam who is the petitioner in W.P.No.12018 of 1996. 8.The writ petitions are ordered accordingly. Consequently, the connected W.M.Ps. are closed. 9.It is also made clear that in case of any difficulties, it is open to the writ petitioners as well as the respondents to approach this Court for further directions, if any". 7.A reference to the said order shows that the same has been a consent order in which this Court has permitted the Regional Transport Authority to appoint an Expert Committee in consultation with the Superintendent of Police and District Collector and other public authorities to study the traffic problems in Erode Town which is facing problems due to the population explosion. Pending such proceedings to be initiated under Section 72 of the Motor Vehicles Act, interim arrangement has been made as it is seen in paragraph 5 of the order and ultimately the said order has become final. The said order also enables any of the parties to approach this Court for clarification, if there are any problem experienced in enforcing the said consent order. It appears that after the order came to be passed and as per the said order, an Expert Committee has been https://hcservices.ecourts.gov.in/hcservices/ constituted which has filed its report. It is not in dispute that the representative of the petitioner also was inducted in the Expert Committee. Thereafter, at the instance of the learned counsel for the petitioner, the matter was posted before the Court for certain clarification. This Court by an order dated 16.11.2000 taking note of the statement made by the learned counsel for the petitioner regarding the reservation about the Expert Committee report and the consequential order of the District Collector who is the Regional Transport Authority, has directed the petitioner to work out his remedy in the manner known to law, if there is any grievance against the order of the Regional Transport Authority, namely, the District Collector. It is seen that it was the grievance of the petitioners that they were not given opportunity by the Experts Committee which has not studied the problems and therefore, the plea for clarification came to be rejected by this Court in the following terms: "2.Heard Mr.T.Murugamanickam, learned counsel for the petitioners, the learned Special Government Pleader for the first respondent and Mr.Krishnappan and Mr.M.Palani for the other respondents. 3.It is now admitted that an expert committee had been constituted. The expert committee had submitted its report and after considering the said report, the first respondent/District Collector has also passed orders. If the petitioner has got any grievance with respect to the said order, the remedy lies elsewhere and it is well open to the petitioner to work out his remedy, if any. 4.Mr.T.Murugamanickam contends that he had not been given an opportunity and the expert committee did not study the traffic problem and certain procedural irregularities as well. The same cannot be gone into in this writ petition as according to the respondents the expert committee had already studied the entire matter, submitted its report and the first respondent, Regional Transport Authority after hearing the concerned had passed orders. In the circumstances, there is nothing to be clarified. Hence, the request of the counsel for the petitioner is rejected. It is well open to the petitioner to work out his remedies, if any according to law". 8.It is after the said order the petitioner has filed an appeal before the first respondent in Appeal No.53 of 2003 before the first respondent. The Regional Transport Authority, the second respondent earlier has constituted Expert Committee with official and non official members numbering 21 in which the Secretary of the petitioner is also inducted as one of the members. The report of the https://hcservices.ecourts.gov.in/hcservices/ Expert Committee is stated to be dated 04.07.2000. Since the petitioner's complaint is that even though its secretary form part of the members of the Expert Committee as one among 21, he was not given proper opportunity to participate in the proceedings of the Committee and that the report of the Expert Committee, dated 04.07.2000 has not been furnished to him. It appears that the Expert Committee has given a suggestion for diversion of route originally granted between Erode Bus Stand to P.S.Park via Nachiappa Street and Brough Road and on the return trip from P.S.Park to Erode Bus Stand via Ex-clock Tower, Nethaji Road and Sathy Road and that report of the Committee appears to be for the purpose of easing congestion or maintaining free flow of traffic. It was based on the said recommendations of the Expert committee, the second respondent has issued notice to all persons including the operators under Section 72(2)(xxii) of the Motor Vehicles Act, 1988. It is seen that while the operators are stated to have accepted the proposals for deviation, the petitioner has objected to the same contending that the original route which has been given as per the permit namely Erode Bus Stand to P.S.Park via Sathi Road, Nethaji Road and Ex- clock Tower itself has to be resorted to stating that any deviation will create inconvenience and confusion to the travelling public. It was after taking note of the objections, the second respondent Regional Transport Authority, Erode, while accepting the Expert Committee recommendation has permitted to ply on the Central Bus Stand to various destinations via Nethaji Road via Natchiappa Street and on the return will ply from P.S.Park to Bus Stand via Nethaji Road and Sathy Road also ordered that the road between Sathy Road corner and Ex-clock tower on Nethaji Road declaring it as one way. 9.As stated above, it was after the order passed by the second respondent in the above writ petition a clarification was moved by way of mentioning and the Court has rejected the same on 16.11.2000 stating that it is for the petitioner to work out his remedy in the manner known to law. It is based on the same, the petitioner has filed the statutory appeal before the tribunal as against the order of the second respondent dated 14.09.2000 which is now pending. Pending the said appeal, which is admittedly pending from 2003 for disposal even as on date, the petitioner moved the application in 2009 to appoint a Commissioner to inspect the route Erode Bus Stand to P.S.Park via Ex-clock Tower and Via Brough Road and submit a report about the volume/nature of vehicular traffic on the road. That application came to be rejected by the tribunal on the ground that the same has been filed after the lapse of nearly 7 years without assigning any reason and also taking note of the fact that there are no provisions available under the Motor Vehicles Act and Rules for appointment of such Advocate Commissioner. The tribunal while rejecting such application has also taken note of the fact that the petitioner has not taken any steps to cancel the Expert Committee Report and not even stated as to how the Expert https://hcservices.ecourts.gov.in/hcservices/ Committee Report is not correct and with that view rejected the said application. 10.Under Section 72 of the Motor Vehicles Act 1982 which empowers the Regional Transport Authority to grant such permits subject to various conditions, under Section 72(2) of the Act. The grant of such permit is subject to Section 71 of the Act and on the application made by persons as per Section 70 of the Act 11.71(1) of the Motor Vehicles Act which is as follows: "A Regional Transport Authority shall, while considering an application for a stage carriage permit, have regard to the objects of this Act." imposes an inherent obligation on the part of the Regional Transport authority to take note of the object of the Motor Vehicles Act. 12.The stage carriage for which the permit is given under Section 72 of the Act by the Regional Transport Authority taking note of the object of the Act is a public service vehicle as it is defined under Section 2(35) of the Act. Under Section 72(2) of the Act which postulates various conditions with which stage carriage permit could be granted by the Regional Transport Authority also enables such authority to vary the conditions of permit as it is seen under Section 72 (2) (xii) of the Motor Vehicles Act which is as follows: "72(2)(xxii) that the Regional Transport Authority may after giving notice of not less than one month,- a)vary the conditions of the permit; b)attach to the permit further conditions; Provided that the conditions specified in pursuance of clause(i) shall not be varied so as to alter the distance covered by the original route by more than 24 kilometres, and any variation within such limits shall be made only after the Regional Transport Authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof". 13.A reading of the said provision shows that while variation of permit which includes the stipulations and the route has to be considered having regard to the object of the Motor Vehicles Act and https://hcservices.ecourts.gov.in/hcservices/ taking note as to whether such variation will serve the convenience of the public. Therefore, it is clear that ultimately it is the convenience of the public at large which should be the guiding factor for the Regional Transport Authority either to grant permit for stage carriage subject to the conditions or to vary the conditions subsequent to the grant of original permit which has to be construed to impose that under changing circumstances, it is the duty of the Regional Transport Authority to vary the conditions taking note of the convenience of the general public. When such action is taken by the Regional Transport Authority, it is certainly not open to stage carriage permit holders to contend that by the original permit, there is a vested interest which cannot be altered. But such alterations cannot be done arbitrarily by the Regional Transport Authority without giving notice to the permit holder to whom a route permit has already been given. Therefore, the alteration of condition including that of the changed route permit has to be done by the Regional Transport Authority after giving opportunity to the permit holder who has got right to run the stage carriage in a particular route based on the original permit and after hearing such permit holder and taking note of the convenience of public, the Regional Transport Authority has to alter the conditions. Therefore, it is clear that the route permit by which stage carriage holder has been granted to run his vehicle on a particular route is not a permanent right available to him, even though he has got a statutory right to run on the said route as per the permit till it is altered in the manner known to law (i.e.)the provisions of the Motor Vehicles Act, 1988 in which case, the Regional Transport Authority has to pass orders taking into consideration the object of the Act as well as the convenience of the public. 14.It is in fact based on the said object of the Motor Vehicles Act especially relating to the running of the stage carriage permits, as per the direction of this Court stated supra, the Regional Transport Authority has constituted an Expert Committee which is well within its power and ambit under Section 72(2)(xxii) of the Act. But as stated above, even after alteration of such condition by following the procedure it is not as if, the Regional Transport Authority cannot make further alteration based on changed circumstances for, the need of the public is a changing pattern since it depends upon various factors including the increase in population, increase in the number of users of the vehicles, the condition of the road and many other factors. Inasmuch as such factors are ever changing process in the living conditions of people in any area, it cannot be said that either the Regional Transport Authority or the Appellate Tribunal has no power to take note of the existing circumstance to decide about the convenience of public in relation to the conditions to be imposed for the purpose of running of stage carriage. It is true that the validity or otherwise of the https://hcservices.ecourts.gov.in/hcservices/ order passed by the second respondent, dated 14.09.2000 in varying the conditions of permit as stated above is to be ultimately tested by the first respondent Tribunal in the appeal wherein the petitioner has raised the issue that it has not been given any opportunity in the Expert Committee in an effective manner and Expert Committee report has not been furnished, while it has been the case of stage carriage permit holders that the petitioner has fully participated in the process of the expert committee. But it does not mean that the tribunal while deciding about the validity of the order of the second respondent should not look into the existing situation especially there is passage of time of nearly 7 years after the second respondent has passed its order varying the conditions. As the appellate tribunal the first respondent has jurisdiction while deciding about the validity or otherwise of the order of the second respondent which is tested before the tribunal to direct the second respondent to study the existing condition of traffic etc., in the said permit route for the