Full Judgment Text
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PETITIONER:
YOGESHWAR JAISWAL, ETC, ETC.
Vs.
RESPONDENT:
STATE TRANSPORT APPELLATE TRIBUNAL AND ORS.
DATE OF JUDGMENT31/01/1985
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
MUKHARJI, SABYASACHI (J)
CITATION:
1985 AIR 516 1985 SCR (2) 790
1985 SCC (1) 725 1985 SCALE (1)204
CITATOR INFO :
F 1986 SC 119 (3,4)
F 1986 SC 242 (1,2)
F 1986 SC1719 (4)
RF 1992 SC1789 (5)
ACT:
Motor Vehicles Act 1939 Sections 68C, 68D and 68F:
HEADNOTE:
Stage carriages of State Transport Undertaking-
Exclusive operation of- Draft scheme published-No decision
taken thereon by State Government for nine years-Increased
transport facilities-Need and necessity arising-Regional
Transport Undertaking granting temporary permits-Action
whether valid and legal-Statutory duty imposed by section
68C-Speedy exercise with due regard to public interest-
Necessity of.
Administrative Law:
Statutory duty-Delay in performance of - Abuse of
process of law - To be remedied by Court.
Practice and Procedure:
Motor Vehicle Permits-Grant of-Delay in-Performance
of statutory duty - duty of Court to enforce by issuance of
writ.
A notification dated November 17, 1971 was published
under section 68C of the Motor Vehicles Act 1939, inviting
objections to a draft scheme providing for exclusive
operation of stage carriages of the State Transport
Undertaking over thirteen routes in a district. At the
Regional Transport Authority felt that it was necessary to
increase the strength of the stage carriage services of nine
routes out of the thirteen routes covered by the said
scheme, it decided by its order dated December 17, 1979 to
invite applications for temporary carriage permits. This
decision was taken after it had allowed amalgamation and
extension of certain existing permits held by 102 operators.
Pursuant to this invitation by the Regional Transport
Authority, a large number of persons including the
appellants applied for the temporary permits. On January 10,
1980, the State transport undertaking having not made any
applications under section 68F(IA)
791
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the application of the appellants and a large number
of other persons about 800 were considered by the Regional
Transport Authority and the appellants were granted nineteen
temporary permits.
Some Operators who felt aggrieved by the resolutions
of the Regional Transport Authority passed on December 17,
1979 and January 10, 1980 filed Revision Petitions before
the State Transport Appellate Tribunal.
The Tribunal by its order dated June 3, 1981 set aside
both the resolutions dated December 17, 1979 and January 13,
1980 of the Regional Transport Authority, on the ground that
the amalgamation and extension of permits granted in favour
of the existing operators, after the publication of the
scheme under section 68C was contrary to the provisions of
Chapter IVA of the Act.
The appellants filed writ petitions which were
dismissed by the High Court, which held that since the grant
of temporary permits in favour of the appellants was
dependent upon the order dated December 17, 1979 to which
the appellants were not parties, the temporary permits
granted in their favour on January 10, 1980 were also liable
to be set aside.
Allowing the Appeals to this Court,
^
HELD: 1. The order of the Tribunal and the order of
the High Court to the extent they cancel the temporary
permits in favour of the appellants are set aside. The
appellants are permitted to operate their services under the
temporary permits issued to them under section 68F (IC) on
January 10, 1980 and the operation of the said temporary
permits shall come to an end in accordance with law. [799E]
2. A direction is issued to the State Government to
pass orders under section 68D (2) approving the scheme with
or without any modification or rejecting it or to pass any
other order thereon which it may under that provision on or
before July 31, 1985. Such approved scheme shall be
published under section 68D (3) on or before August 31,
1985. Failure to do so, the scheme published under section
68C shall stand quashed with effect from August 31, 1985.
[799C-D]
3. (i) Both the Tribunal and the High Court overlooked
the relevant issues affecting the public interest which
should always be the guiding principle in deciding cases
relating to grant of motor vehicles permits under the Act.
[798B]
(ii) The Tribunal and the High Court both failed to
notice that the scheme had been published in the year 1971
and the order issuing temporary permits had been passed
nearly nine years after its publication, after the Regional
Transport Authority was satisfied that there was necessity
for granting them. [i]
(iii) The Tribunal and the High Court did not seek to
elicit information about the reasons for the inordinate
delay in the State Government passing its order under
section 68D of the Act and failed to consider the adverse
effect on the travelling public. [798D]
792
4. The Regional Transport Authority had found that
there was need for issuing the said temporary permits for
some of the routes in question, after it had granted
extension to the permits held by 102 existing operators. On
the cancellation of the said extensions, the need for
providing additional travelling facilities became further
intensified and therefore there was certainly no case for
setting aside the temporary permits granted in favour of the
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appellants. The cancellation of the temporary permits issued
in favour of the appellants has resulted ill grave public
prejudice. [798G-H]
5. Delay in performance of statutory duties amounts to
an abuse of process of law and has to be remedied by the
court particularly when the public interest suffers thereby.
[796F]
6. (i) The provisions of section 68C and section 68D
of the Motor Vehicles Act 1939 clearly indicate that any
scheme which is intended for providing efficient, adequate,
economical or properly by coordinated transport service
should be approved either as it is or in a modified form or
rejected as the case may be within a reasonably short time
as any extraordinary delay is bound to upset all or any of
the factors, namely efficiency, adequacy, economy of
coordination which ought to govern an approved scheme under
Chapter IVA of the Act. [194G-H]
(ii) On account of various reasons such as the growth
of population and the development of the geographical area
adjacent to the area or route in question, any unreasonable
delay may render the very proposal contained in the scheme
antiquated, outmoded and purposeless. Hence there is need
for speedy disposal of the case under section 68D of the
Act. [795A-B]
(iii) The power under section 68D has to be exercised
having due regard to the public interest. [796H]
(iv) If there is an unreasonably long and unexplained
delay in the State Government passing orders under section
68D of the Act, the Court may issue a mandamus to the State
Government to dispose of the case under section 68D of the
Act within a specified time or may in an appropriate case
even issue a writ in the nature of certiorari quashing the
scheme and a writ in the nature of prohibition directing the
State Government not to proceed with the consideration of
the scheme published under section 68C of the Act because
section 68D does not confer an unfettered discretion on the
State Government to deal with the case as it likes. [796F-G]
7. Sub-sections (IA) and 1C of section 68F of the Act
read together indicate that what can be granted under either
of the said sub-sections is only a temporary permit which
can last during the period between the date of publication
of the scheme under section 68C of the Act and the date on
which the order under section 68D of the Act is made subject
to the provisions contained in sub-section (IB) of section
68F of the Act. The life of such temporary permit cannot
extend to an unreasonably long period, as even a renewable
permit issued under Chapter IV of the Act is subject to the
restrictions contained in section 58 of the Act as regards
its duration and renewal and that a temporary permit issued
under section 62 of the Act cannot be in force in any case
for more than four months. The State Government is
necessarily therefore required by law to pass its orders
under section 68D of the Act as early as possible. [796C-E]
793
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 53,
54-57, A 202-04 and 255 of 1982.
From the Judgment and Order dated 27th November, 1981
of Allahabad High Court in Civil Miscellaneous Writ
Petitions Nos. 29]5, 2888 2914, and 2974 of 1981.
J. P. Goyal, S. N. Kacker, Shanti Bhushan, V. K.
Verma, V. J. Francis, Mahabir Singh and N. S. Malik for the
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appearing Appellants.
V. M. Tarkunde, K. K. Venugopal, Prithviraj, B. S.
Chauhan, Rani Chhabra, R. K. Jain, Mrs. Shobha Dikshit and
Raju Ramachandran for the appearing Respondents.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. The lamentable delay of nearly
fourteen years involved in the State Government of Uttar
Pradesh passing its order under section 68D of the Motor
Vehicles Act, 1939 (hereinafter referred to as ‘the Act’) on
a scheme published under section 68C thereof has been the
main cause of these appeals by special leave filed against
the judgment of the High Court of Allahabad dated November
27, 1981. E
A notification dated November 17, 1971 was published
under section 68C of the Act by the State transport
undertaking of the State of Uttar Pradesh in the U. P.
Gazette dated November 27, 1971 inviting objections to a
draft scheme providing for the exclusive operation of its
own stage carriages over thirteen routes within the
jurisdiction of the Regional Transport Authority of Meerut.
It is unfortunate that no decision has yet been taken by the
State Government under section 68D of the Act for one reason
or the other. In the meanwhile the members of the public as
well as the motor operators have become subject to several
constraints arising from the publication of such a scheme.
Chapter IVA of the Act was introduced by Act 100 of
1956 into the Act with the object of making provision for
operation of motor vehicles to the exclusion, complete or
partial, of other persons for the purpose of providing an
efficient, adequate, economical and properly co-ordinated
transport service to the community. The provisions contained
in Chapter 1VA of the Act and the Rules made
794
thereunder are declared as having overriding effect on the
provisions in Chapter IV of the Act which contains
provisions relating to control of transport vehicles and all
other laws. Section 68C of the Act provides that where any
State transport undertaking is of opinion that for the
purpose of providing an efficient, adequate, economical and
properly co-ordinated road transport service, it is
necessary in the public interest that road transport
services in general or in any particular class of such
service in relation to any area or route or portion thereof
should be run and operated by the State transport
undertaking, whether to the exclusion, complete or partial,
of other persons or otherwise, the State transport
undertaking may prepare a scheme giving particulars of the
nature of the services proposed to be rendered, the area or
route proposed to be covered and such other particulars
respecting thereto as may be prescribed, and shall cause
every such scheme to be published in the Official Gazette
and also in such other manner as the State Government may
direct. On the publication of the scheme, any person already
providing transport facilities by any means along or near
the area or route proposed to be covered by the scheme, any
association representing persons interested in the provision
of road transport facilities recognised in this behalf by
the State Government and any local authority or police
authority within whose jurisdiction any part of the area or
route proposed to be covered by the scheme lies may, within
thirty days from the date of the Publication of the scheme
in the official Gazette, file objections to it before the
State Government. The State Government may after considering
the objections and after giving an opportunity to the
objector or his representatives and the representatives of
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the State transport undertaking to be heard in the matter if
they so desire, approve or modify the scheme. This is the
substance of sub-sections (1) and (2) of section 68D of the
Act. Under subsection ’3) thereof the scheme approved or
modified has to be published in the official Gazette and
such scheme is called the approved scheme and the area or
route to which it relates is called the notified area or
notified route The provisions of section 68C and section 68D
of the Act clearly indicate that any scheme which is
intended for providing efficient, adequate, economical or
properly co-ordinated transport service should be approved
either as it is or in a modified form or rejected, as the
case may be, within a reasonably short time as any
extraordinary delay is bound to upset all or any of the
factors, namely, efficiency, adequacy, economy or
coordination which ought to govern an approved scheme under
Chapter IVA of the Act. On account of various reasons such
as the growth
795
of population and the development of the geographical area
adjacent to the area or route in question, any unreasonable
delay may render the very proposal contained in the scheme
antiquated, outmoded and purposeless. Hence there is need
for speedy disposal of the case under section 68D of the
Act.
The other legal constraints flowing from the
publication of the scheme under section 68C of the Act also
lead us to the same conclusion. Section 68F (ID) of the Act
provides that save as otherwise provided in sub-section (1
A), or sub-section ( 1C) thereof no permit shall be granted
or renewed during the period intervening between the date of
publication under section 68C of any scheme and the date of
publication of the approved or modified scheme, in favour of
any person for any class of road transport service in
relation to an area or route or portion thereof covered by
such scheme The proviso to sub-section (ID) of section 68F
of the Act, however, states that where the period of
operation of a permit in relation to any area, route or
portion thereof specified in a scheme published under
section 68C expires after such publication, such permit
shall be renewed for a limited period, but the permit so
renewed shall cease to be effective on the publication of
the scheme under sub-section (3) of section 68D of the Act.
This provision overrides the provisions in section 58 of the
Act which provides for the renewal of motor vehicle permits
issued under Chapter IV of the Act. As regards the issue of
fresh permits for operating motor vehicles of the class
referred to in the scheme in the area or on the route in
question between the date of publication of the scheme under
section 68C of the Act and the date of publication of the
approved or modified scheme under section 68D of the Act,
subsections (IA) and (1C) of section 68F of the Act alone
have to be resorted to. Sub-Section (IA) of section 68F
gives preference to the State transport undertaking
regarding the issue of such permits. It provides that where
any scheme has been published by a State transport
undertaking under section 68 C, that undertaking may apply
for a temporary permit, in respect of any area or route or
portion thereof specified in the said scheme, for the period
intervening between the date of publication of the scheme
and the date of publication of the approved or modified
scheme, and where such application is made, the State
Transport Authority or the Regional Transport Authority, as
the case may be, shall, if it is satisfied that it is
necessary to increase, in the public interest the number of
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vehicles operating in such area or route or portion thereof,
issue the temporary permit prayed for by the State transport
undertaking
796
Such temporary permit shall be effective if the scheme is
published under sub-section (3) of section 68D of the Act
until the grant of the permit to the State transport
undertaking under sub-section (1) of section 68F of the Act
or if the scheme is not published accordingly, until the
expiration of one week from the date on which the order
under sub-section (2) of section 68D of the Act is made. If
no application for the temporary permit is made under sub
section (IA) of section 68F of the Act by the State
transport undertaking, the State Transport Authority or the
Regional Transport Authority, as the case may be, may under
sub-section (1C) of section 68P of the Act grant, subject to
such conditions as it may think fit, temporary permit to any
person in respect of the area or route or portion thereof
specified in the scheme and the permit so granted shall
cease to be effective on the issue of a permit to the State
transport undertaking in respect of that area or route or
portion thereof. Sub-sections ( IA ) and ( 1C ) of section
68 of the Act read together indicate that what can be
granted under either of the said sub sections is only a
temporary permit which can last during the period between
the date of publication of the scheme under section 68C of
the Act and the date on which the order under section 68D of
the Act is made subject to the provisions contained in
subsection (IB) of section 68F of the Act. The life of such
temporary permit cannot extend to an unreasonably long
period, as even a renewable permit issued under Chapter IV
of the Act is subject to the restrictions contained in
section 58 of the Act as regards its duration and renewal
and that a temporary permit issued under section 62 of the
Act cannot be in force in any case for more than four
months. Necessarily, therefore, the State Government is
required by law to pass its orders under section 68D of the
Act as early as possible. Delay in performance of statutory
duties amounts to an abuse of process of law and has to be
remedied by the court particularly when the public interest
suffers, thereby. Hence if there is an unreasonably long and
unexplained delay in the State Government passing orders
under section 68D of the Act, the Court may issue a mandamus
to the State Government to dispose of the case under section
68D of the Act within a specific time or may in an
appropriate case even issue a writ in the nature of
certiorari quashing the scheme and a writ in the nature
prohibition directing the State Government not to proceed
with the consideration of the scheme published under section
68C of the Act because section 68D does not confer an
unfettered discretion on the State Government to deal with
the case as it likes. The power under section 68D has to be
exercised having due regard to the public interest.
797
In the cases before us the appellants are aggrieved by the A
quashing of the temporary permits which had been issued on
January 10, 1980 under section 68F (1C) of the Act by the
Regional Transport Authority, Meerut in their favour to
operate stage carriages on some of the routes covered by the
scheme nearly nine years after its publication. It appears
that the Regional Transport Authority felt that it was
necessary to increase the strength of the stage carriage
Services on nine routes out of the thirteen routes covered
by the scheme and accordingly it decided by its order dated
December 17, 1979 to invite applications for temporary
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carriage permits. This decision was taken by the Regional
Transport Authority after it had allowed the amalgamation
and extension of certain existing permits held by 102
operators Pursuant to the invitation by the Regional
Transport Authority, a large number of persons including the
appellants applied for the temporary permits before the last
date specified for making such applications i. e. December
31, 1979. On January 10, 1980, the U. P. State Transport
Undertaking having not made any application under section
68F (IA) of the Act, the l? applications of the appellants
and a large number of other persons who were about 800 in
number were considered by the Regional Transport Authority
and the appellants were granted in all nineteen temporary
permits. Some persons who felt aggrieved by the resolutions
of the Regional Transport Authority passed on December 17
1979 and January 10, 1980 filed revision petitions before
the State Transport Appellate Tribunal, Lucknow. The
Tribunal by its order dated June 3, 1981 set aside both the
resolutions dated December 17, 1979 and January 10, 1980
passed by the Regional Transport Authority. The main ground
for setting aside the resolution dated December 17, 1979 was
that the amalgamation and extension of permits granted in
favour of the existing operators after the publication of
the scheme under section 68C of the Act was contrary to the
provisions of Chapter IVA of the Act. The Tribunal, however,
did not hold that there was no necessity for increasing the
number of stage carriage services on the routes in question
and for issuing temporary permits under section 68F of the
Act. Thereafter the appellants filed writ petitions before
the High Court under Article 226 of the Constitution
questioning the correctness of the order setting aside the
temporary permits granted in their favour on January 10,
1980. The existing operators who had been granted
amalgamation and extension of their permits by the Regional
Authority on December 17, 1979, however, did not challenge
the order of the Tribunal even though the orders passed in
their favour were also set aside. The High Court dismissed
the writ petitions filed
798
by the appellants holding that since the grant of temporary
permits in favour of the appellants was dependent upon the
order dated December 17, 1979 to which the appellants were
not parties, the temporary permits granted in their favour
on January 10, 1980 were also liable to be set aside. These
appeals by special leave are filed against the judgment of
the High Court in the above writ petitions.
On the facts and in the circumstances of these
appeals, we are constrained to observe that both the
Tribunal and the High Court overlooked the relevant issues
affecting the public interest which should always be the
guiding principle in deciding cases relating to the grant of
motor vehicles permits under the Act. The Tribunal and the
High Court have both failed to notice that the scheme had
been published in the year 1971 and the order issuing
temporary permits had been passed nearly nine years after
its publication, after the Regional Transport Authority was
satisfied that there was necessity for granting them. The
Tribunal and the High Court did not seek to elicit
information about the reasons for the inordinate delay in
the State Government passing its order under section 68D of
the Act and failed to consider the adverse effect on the
travelling public. The Tribunal and the High Court took a
highly technical view in disposing of the matter. We are of
the view that it is needless at this stage to go into the
grounds in detail on which the Tribunal and the High Court
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found that the orders of the Regional Transport Authority
were untenable since nearly fourteen years have elapsed form
the date of publication of the scheme. The High Court
appears to have given more attention to the validity of the
grant of extensions to the existing operators on December
17, 1979 which was not at all in issue before it than to the
correctness of the order of the Tribunal in setting aside
the temporary permits granted to the appellants on January
10, 1980 which had been challenged by the appellants in the
writ petitions. Admittedly the region in which the routes in
respect of which the scheme is published are lying is a
thickly populated part of the State of Uttar Pradesh. There
has been a lot of development in the region in recent years
on the agricultural front as well as the commercial front
The Regional Transport Authority had found that there was
need for issuing the said temporary permits for some of the
routes in question after it had granted extensions to the
permits held by 102 existing operators. On the cancellation
of the slid extensions the need for providing additional
travelling facilities become further intensified and
therefore there was certainly no case for setting aside the
temporary permits granted in favour of the appellants. The
cancellation of the temporary permits issued in favour of
the appellants
799
has resulted in grave public prejudice. We are also of the
opinion that the extra-ordinary delay in the disposal of the
proceedings before the State Government under section 68D of
the Act has brought about a stalemate which should be
terminated quickly in the interests of the general public.
We, therefore, consider that in the interests of
justice it is appropriate to being to an end the proceedings
under section 68D of the Act expeditiously. We would have
perhaps considered the question of quashing the scheme
itself at this stage but since no such contention is urged
before us, we feel that it is sufficient to issue a
direction to the State Government to pass orders under
section 68D (2) of the Act approving the scheme with or
without any modification or rejecting it or to pass any
other order thereon which it may pass under that provision
on or before July 31,1985. We issue a direction accordingly.
If the State Government approves the scheme with or without
any modification, such approved scheme shall be published
under section 68D (3) of the Act on or before August
31,1985. If the State Government fails to dispose of the
matter according within the time specified above, the scheme
published under section 68C of the Act shall stand quashed
with effect from August 31, 1985. The order of the Tribunal
and the order of the High Court to the extent they cancel
the temporary permits issued in favour of the appellants are
set aside. The appellants are permitted to operate their
services under the temporary permits issued to them under
section 68F (1C) of the Act oh January 10, 1980 and the
operation of the said temporary permits shall come to an end
in accordance with law.
The appeals are accordingly disposed of There shall be
no order as to costs.
N. V. K. Appeals allowed.
800