Case ID: 3344

Judgment:
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 47(1). 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 (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 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 3.10 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 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). Actually	 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 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. P.H.P. 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 47(1) 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 3.1 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 47(1). 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 47(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 the 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 section 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 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