Full Judgment Text
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CASE NO.:
Appeal (civil) 6716-6719 of 1999
PETITIONER:
U.P.State Road Transport Corporation through its Chairman
RESPONDENT:
Omaditya Verma & Ors.
DATE OF JUDGMENT: 05/04/2005
BENCH:
ASHOK BHAN & A.K. MATHUR
JUDGMENT:
J U D G M E N T
A.K. MATHUR, J.
In all these four appeals, the questions of law and facts
involved are common, as such they are disposed of by this common
order.
This case has a chequered history. But before we enter
into the chequered history, a few important facts may be noticed.
The route from Bijnore \026Noorpur-Chandpur was notified under a
scheme which was published in the Official Gazette of the State of
U.P. on February 12,1952. Thereafter, by another Gazette
Notification dated October 15,1962, a scheme was prepared from
Bojnore to Muzaffarnagar route of Meerut region. It was directed that
the State Road Transport service shall commence operation from
November 15,1962 or thereafter. Thereafter, on September 28,1977,
another route was notified from Muzaffarnagar to Bijnore via Bhopa,
Morna and Rawalighat. This was again modified by another
Notification dated 3rd September, 1994 after hearing objections,
Muzaffarnagar to Bijnor route of Meerut region i.e. Muzaffarngar via
Jansath, Meerapur, Dewal instead of via Bhopa and Morna and
Rawlighat. As a result of these two aforesaid schemes the entire
route, Muzaffarnagar Jansath, Meerapur, Dewal to Bijnore stood
notified. Therefore, these two schemes are the subject matter of the
present litigation. Relevant portions of these two notifications i.e.
Notification dated February 12, 1952 and September 3, 1994 are
reproduced herein below.
NOTIFICATION DATED FEBRUARY 12, 1952.
REGION NAME OF THE DATE OF Number TYPE AND CARRYING
NUMBER OF SERVICES
ROUTE COMMENCEMENT OF SRT CAPACITY OF OPERATED BYOTHERS
OF OPERATION OF SERVICES VEHICLES ON THE ROUTE
OR
STATE ROAD STATE OTHER PA
RT OF IT
TRANSPORT EXCLUSIVELY
1 2 3 4
5 6 7
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BAREILLY
XX XX XX XX XX XX
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18. Bijnor-Noorpur- 1.2.49 2 Stage Carriage Nil
Nil
chandpur 25-40 Seater.
Xx xx xx xxxx xx
--------------------------------------------------------------------------------------------
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NOTIFICATION DATED SEPTEMBER 3, 1994.
Serial No. Notification no. and date Name of the approved
Modification proposed
By which the scheme was scheme in which the
Approved modification is proposed.
1 2 3 4
1. 4790-T-XXX-2-B-60, dated Scheme regarding to Bijnore The approved sc
heme
October 15,1962 and no. to Muzaffarnagar route mentioned in Column-
3
4517/XXX-2-429-86, of Meerut Region. Is modified to
cover the
dated September 28,1977 route bet
ween Bijnor and
Muzaffarnagar via
Jansath-Meerapur-
Dowal instead of the
Route via Bhopa and
Morna
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These civil appeals on grant of special leave have been filed against
the common order passed by the Division Bench of the Allahabad
High Court dated September 26,1997 whereby the High Court
allowed four writ petitions i.e. Civil Misc. Writ Petition Nos. 9990,
15746, 20187 & 23496 of 1997 and set aside the order dated July 17,
1990 and quashed the same and directed the Secretary, State
Transport Authority, State of Uttar Pradesh, Lucknow to issue permit
to all grantees who have not been issued permits on the basis of the
resolution dated June 14-15, 1993 forthwith and without any delay.
Aggrieved against this common order the present appeals were filed
by the Uttar Pradesh State Road Transport Corporation (hereinafter
to be referred to as "UPSRTC").
At the INITIAL stage, notice was directed to be issued on
November 13, 1998 on the application for condonation of delay as
well as on the SLP but no interim order was passed. Thereafter,
leave was granted on November 18, 1999. On May 11, 2000
Interlocutory applications were dismissed. Now, the appeals have
been set down before us for hearing. Office report dated February
21, 2005 shows that in CA 6716 of 1999, all the 23 respondents were
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served, excepting Respondent Nos.17 & 18 who are represented by
Ms. Abha Jain and M/s.Mitter & Mitter & Co., the rest of the
respondents have not chosen to enter appearance. In Civil Appeal
No. 6717 of 1999 there are 21 respondents, all of them though
served by dasti, Respondent Nos.1 to 12, 14 and 16 to 21 have not
chosen to appear and contest the proceedings. Respondent Nos.13
and 15 are represented through M/s.Mitter & Mitter & Co. and
Mr.Sunil Kumar Jain, Advocate respectively. In Civil Appeal No.
6718 of 1999 there are three respondents and all of them have been
served by dasti. But they have not entered appearance. In Civil
Appeal No. 6719 of 1999 there are three respondents. All of them
have been served but they have not chosen to enter appearance.
Hence, all these appeals are before us.
The State Transport Authority of U.P. by resolution dated June
14-15 of 1993 granted 38 regular stage carriage permit in the route,
namely, Muzaffarnagar- Chhajlet via Gangabridge, Bijnor and
Noorpur. Out of 38 persons, 11 persons were issued with necessary
permits in the month of July, 1993. Thereafter, series of writ petitions
were filed in the High Court. The first writ petition was filed by Sh.
Harpal Singh being Writ Petition No.3511 of 1993 before the
Lucknow Bench of the High Court in which an interim stay order was
passed on August 16, 1993 restraining the State Transport Authority
from issuing permits on the route, in question. The Secretary, State
Transport Authority, Lucknow passed an order on July 31, 1993
directing 11 permit holders to ply their vehicles on Muzaffarnagar-
Chhajlet via Jolly-Jarwar- Katia route. The Chairman, State
Transport Authority, U.P., Lucknow passed another order on
February 2, 1995 directing the said 11 permit holders to ply their
vehicles on Muzaffarnagar-Chhajlet route via Jansath-Meerapur. The
order passed by Secretary, State Transport Authority, U.P., Lucknow
on July 31, 1993 was challenged by one Smt. Saima Jamal in a writ
petition being Writ Petition No.4250 of 1994 at Lucknow Bench of the
High Court. Another writ petition being Writ Petition No.7875 of 1994
was filed by one Sanjeev Kumar challenging the order passed by the
Secretary, State Transport Authority, U.P., Lucknow on July 31,
1993. A subsequent writ petition being Writ Petition No.6774 of 1995
was also filed by one Smt. Shashi Goel challenging the order passed
by the Chairman, State Transport Authority, U.P., Lucknow on
February 2, 1995. The two writ petitions i.e. Writ Petition No. 7875 of
1994 and Writ Petition No.6774 of 1995 filed before the Allahabad
High Court were decided by the Division Bench by its order dated
May 5, 1995 and order dated July 31, 1993 passed by the Secretary,
State Transport Authority, U.P., Lucknow and the order dated
February 2, 1995 passed by the Chairman, State Transport Authority,
U.P. were quashed and the State Transport Authority was directed to
pass a specific order indicating the route for which the permit was
granted in the meeting of June 14-15, 1993. This order dated May 5,
1995 passed in Writ Petition No.7875 of 1994 and Writ Petition
No.6774 of 1995 was challenged in Special Leave Petition ) No.
13594 of 1995 which was decided by this Court by order dated July
21, 1995. The following order was passed by this Court:
" Heard the counsel for both the parties.
Leave granted.
We are of the opinion that there are several
disputed questions of facts and law which
require a clear and comprehensive investigation.
For example, one of the questions is whether
the original permit granted to the petitioners on
the route Muzaffarnagar to Chajlet via Meerapur,
Ganga Bridge & Noorpur runs along the route
Muzaffarnagar, Joli, Behra Sadar, Jadwad Katia
& Meerapur. There is also a controversy as to
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whether the route Muzaffarnagar to Meerapur is
nationalized or not and further whether there
are any High Court orders precluding the grant
of permit on the sector Muzaffarnagar to
Meerapur. In all these circumstances, we are of
the opinion that all these matters should be sent
to S.T.A.T. , which shall treat the writ petitions
filed in High Court as appeals and after hearing
all the parties, dispose of the matters in
accordance with law."
Therefore, by this order the matter stood remanded to the State
Transport Appellate Tribunal for its decision. In pursuance of the
aforesaid order passed by this Court, three other writ petitions being
Writ Petition No.4250 of 1994 filed by one Saima Jamal before the
Lucknow Bench of the High Court, Writ Petition No.6774 of 1995 filed
by Smt. Shashi Goel and Writ Petition No.7875 of 1994 filed by Sanjiv
Kumar were transferred to the Tribunal and they were registered as
Appeal Nos. 127, 142 and 143 of 1995 respectively. The S.T.A.T. by
its order dated January 27, 1996 allowed the appeals and set aside
the orders dated July 31, 1993 & October 25, 1994 passed by the
Secretary, State Transport Authority, U.P., Lucknow; and order dated
February 2, 1995 passed by the Chairman, State Transport Authority,
U.P., Lucknow. It was held by the Tribunal that the original permits in
pursuance of the resolution dated June 14-15, 1993 were granted via
Jansath-Meerapur. Till that time, the notification dated September 3,
1994 had not come into force notifying the route Muzaffarnagar-
Bijnore via Jansath-Meerapur as a notified route and the impugned
resolution passed by the Regional Transport Authority was not hit by
the notified route. But it appears that perhaps inadvertently all the
parties were totally oblivious of the fact that Bijnor- Noorpur-
Chandpur route was notified under the scheme on February 12,
1952. Therefore, no permit could have been granted covering Bijnor-
Noorpur route up to Chajlet. Be that as it may, the resolution was
passed by the Regional Transport Authority granting permit on the
route Muzaffarnagar \026 Jansath, Meerapur. Dewal, Bijnor and Chajlet
covering Bijnor to Noorpur notified route.
The order passed by the Tribunal on January 27, 1996 after
remand was again challenged by Smt. Shashi Goel by filing two writ
petitions in the High Court at Allahabad. Both the writ petitions were
dismissed by the High Court of Allahabad by its judgment dated
April 30, 1996 and the order of the Tribunal was upheld. The said
order dated April 30, 1996 passed by the High Court of Allahabad
was again challenged before this Court in Special Leave Petition )
Nos. 14269 and 14270 of 1996. However, both the Special Leave
Petitions were dismissed after hearing counsel for the parties by
order dated August 5, 1996. The litigation did not stop here. One
Dharmendra Singh filed Writ Petition No.37607 of 1995 before the
High Court at Allahabad challenging grant of 38 permits by resolution
dated June 14-15, 1993. This writ petition was dismissed by the High
Court on March 3, 1997. Again a review application was also filed
before the High Court which was also dismissed by the High Court by
its order dated July 24, 1997. Since permits were not granted to 21
grantees, another writ petition being Writ Petition No. 9990 of 1997
was filed by Omaditya Verma and 20 others before the High Court of
Allahabad seeking direction against the Chairman, State Transport
Authority and Secretary, State Transport Authority, U.P., Lucknow for
issuing permits in their favour in pursuance of the resolution dated
June 14-15, 1993. That writ petition was heard and Shri M.P.Dubey,
Standing Counsel sought time to file impleadment application and
Shri A.D.Saunders also moved an application for impleadment on
behalf of Dharmendra Singh as a respondent. However, the High
Court directed learned counsel for the writ petitioners to implead the
U.P. State Road Transport Corporation - present appellant as a
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respondent. However, in the meanwhile on July 10-11, 1997, 16
permits were issued in favour of grantees. An objection was filed
before the Secretary, State Transport Authority, U.P.Lucknow,
requesting him not to issue permits because of the stay order passed
by High Court at Lucknow bench in Writ Petition No. 2600 of 1993,
same were not vacated by the High Court nor modified, therefore,
issuance of permit on July 10-11, 1997 in pursuance of the resolution
passed by the State Transport Authority on June 14-15, 1993 was not
correct. The Secretary, State Transport Authority, U.P. Lucknow
passed an order on July 17, 1997 directing the writ petitioners to
deposit their permits and stop plying the vehicles. The said order
dated July 17, 1997 ultimately formed subject matter of the present
writ petition before the High Court. The Division Bench after hearing
the parties at length held that there was no justification for the
Secretary, State Transport Authority, U.P., Lucknow to pass the
aforesaid order when the resolution dated June 14-15, 1993 has
traveled right up to the Apex Court and attained the seal of approval,
The stay order passed in Writ Petition No.2600 of 1993 should not
have been utilized by the Secretary, State Transport Authority to
recall the permits issued in favour of the writ petitioners. It was further
observed by the High Court that in fact objections were frivolous and
non-existent because the resolution of the Regional Transport
Authority passed on June 14-15, 1993 has traveled through series of
litigations and final order was passed by the High Court of Allahabad
and subsequently affirmed by the Apex Court, as such, it was not
proper for the State Transport Authority to have disturbed that order.
Secondly, it was also observed by the High Court that no opportunity
was afforded to the persons whose permits were recalled without
hearing them or without giving them notice. It was further observed
that the impact of the notification dated September 3, 1994 had been
considered at length and no illegality was found on that basis and the
resolution dated June 14-15, 1993 granting permits to the writ
petitioners. It was further observed by the High Court that it was not
open to be considered. The attention of the High Court was also
invited to an order passed in Writ Petition No.2576 of 1997 by the
Lucknow Bench of the High Court on August 12, 1997. In that writ
petition it was observed that in view of the notification dated
September 3, 1994 it would not be advisable to grant permit as the
route has been notified. Learned Division Bench held that in view of
the earlier decision of the Apex Court in these proceedings the
controversy could not be reopened. In this connection a reference
was made by the High Court to a decision of this Court in the case of
State of Maharashtra and Anr. vs. Prabhakar Bhikaji Ingle reported in
JT 1996 (3) SC 567. In that case it was observed that when self-
same order was confirmed by the Apex Court then the order of the
Tribunal stood merged with the order passed by this Court. A similar
view was also expressed in the case of Narayana Bharma Sangal
Trust vs. Swami Prakashananda & Ors. reported in JT 1997 (5) SC
100. In the light of above facts the Division Bench held that it is not
open to the respondents to challenge the grant of permits on the
basis of the notification dated September 3, 1994 when the matter
was remanded back to the Tribunal by the Apex Court by order dated
July 21, 1995 and it was also observed that it finally decided the
issues and operates as res judicata. It was observed that the
resolution passed on June 14-15, 1993 granting 38 permits more
than four years have passed yet permission has not been granted.
Therefore, direction was issued to implement the resolution dated
June 14-15, 1993. Hence, the present appeals on grant of special
leave petition by this Court.
In fact, we have reproduced the relevant portions of the
two notifications in the beginning of this judgment. The main purpose
of reproduction of both notifications was to show that the route in
question i.e. Muzaffarnagar to Chajlet covers the notified route from
Bijnor to Noorpur which is notified route since 1952. We fail to
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understand how permit could be granted by the resolution dated June
14-15, 1993 from Muzaffarnagar to Chajlet in face of the notified
scheme of 1952 from Bijnor to Noorpur. The scheme was of total
exclusion. In fact the resolution dated June 14-15, 1993 is totally
unmindful of the 1952 notification that the route from Bijnor to
Noorpur which falls on the route from Muzaffarnagar to Chhjlet is
notified route. This fact was no where brought to the notice of the
authorities either before the Regional Transport Authority or State
Transport Authority or before the High Court of Allahabad or for that
matter to the Apex Court. This Court by order dated July 21, 1995
only remanded the matter back to the Tribunal for its decision. In
those appeals before the State Transport Appellate Tribunal, the
present appellant i.e. UPSRTC was not a party. The dispute before
this court was between the operators and the authorities and the
UPSRTC was not made a party when the whole matter was
remanded before the Tribunal. Had the UPSRTC been made a party
before the Apex Court they would have brought to the notice of the
Apex Court that a portion of the route from Bijnor to Noorpur is
notified route. When the entire matter was remanded back to the
Tribunal by the Apex Court by Order dated 21.7.1995, another
notification was issued on September 3, 1994 whereby the route from
Muzaffarnagar to Bijnor via Jansath, Meerapur and Dewal was also
notified. Strangely enough UPSRTC was not party before Apex
Court or before STAT. It is for the first time in 1993 before High Court
the UPSRTC was impleaded as a respondent. It is true that when the
resolution dated June 14-15, 1993 was passed at that time the route
from Muzaffarnagar to Bijnor via Jansath Meerapur & Dewal was not
notified but the route from Bijnor to Noorpur was already notified on
February 12, 1952 and we do not understand how could the Regional
Transport Authority and State Transport Authority ignore this fact that
the portion from Bijnor to Noorpur which falls on the route from
Muzaffarnagar to Chajlet was notified, permits were granted on this
notified route. This ignorance appears to be bona fide as nobody
seems to have been cognizant of the notification dated February 12,
1952. The appellant \026 UPSRTC could have been alive to the
situation and should have moved the Tribunal and should have
brought this fact to their notice but the appellant did not choose to
take any step. We cannot appreciate their lack of vigilance. Be that as
it may, the authorities issuing permits from Muzaffarnagar to Chajlat
should have at least known that a portion of the route falling from
Bijnor to Noorpur is a notified route. It is true that this matter has
traveled up to the Apex Court and it has gone through various
litigation but nobody brought to the notice of the authorities that the
route from Bijnor to Noorpur is notified one and no permit could be
granted on this route. It is needless to state that once it is
nationalized route, there is prohibition to permit any private vehicle to
ply except by amending the scheme. It is the mandate of the law and
that cannot be ignored. More so, at the time when this order was
passed by the Division Bench of the High Court the route from
Muzaffarnagar to Bijnore via Jansath, Meerapur and Dweal stood
notified on September 3, 1994. We regret to say that the Division
Bench of the High Court has overlooked this aspect of the matter and
proceeded to decide the matter on the assumption that the effect of
this Notification dated September 3, 1994 has already been taken
into consideration. We fail to appreciate this aspect. Once the route
from Muzaffarnagar to Bijnor via Jansath, Meerapur and Dweal has
already been notified on September 3, 1994 how can the High Court
direct the appellant to grant permit on the aforesaid route. It is true
that when resolution which was passed on June 14-15, 1993 by then
the notification dated September 3, 1994 had not come into operation
but once the scheme under notification dated September 3, 1994
came into operation and the whole route from Muzaffarnagar to
Bijnore stood notified and the route from Bijnore to Noorpur was
already notified by notification dated February 12, 1952, how can
mandamus be issued by the High Court directing the authorities to
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grant permits to the 38 operators. This Court while remanding the
matter did not go into all these questions. This Court only remanded
the matter to the Tribunal as disputed questions of facts were
involved. The other special leave petitions were dismissed in limine.
That does not amount to merger of the High Court order with that of
this Court’s order. The dismissal in limine does not amount to
upholding of the law propounded in the decision sought to be
appealed against . This is a settled proposition of law now.
Reference may be made to
Indian Oil Corporation Ltd. vs. State of Bihar reported
in 1986 (4) SCC 146
"Held:
The dismissal of a special leave petition in limine by a
non-speaking order does not justify any inference that by
necessary implication the contentions raised in the special
leave petition on the merits of the case have been rejected
by Supreme Court. The effect of a non-speaking order of
dismissal of a special leave petition without anything more
indicating the grounds or reasons of its dismissal must, by
necessary implication, be taken to be that Supreme Court
had decided only that it was not a fit case where special
leave should be granted. It cannot be assumed that it had
necessarily decided by implication all the questions in
relation to the merits of the award, which was under
challenge before Supreme Court in the special leave
petition.
A writ petition is a wholly different and distinct
proceeding. Although questions which can be said to have
been decided by Supreme Court expressly, implicitly or
even constructively while dismissing the special leave
petition cannot be reopened in a subsequent writ
proceeding before the High Court, but neither on the
principle of res judicata nor on any principle of public
policy analogous thereto, would the order of Supreme
Court dismissing the special leave petition operate to bar
the trial of identical issues in a separate proceeding
namely, the writ proceeding before the High Court merely
on the basis of an uncertain assumption that the issues
must have been decided by Supreme Court at least by
implication. The exercise of discretionary jurisdiction of
the High Court to grant leave under Article 226 is to be
guided by established legal principles. It will not be a
sound exercise of that discretion to refuse to consider a
writ petition on its merits solely on the ground that a
special leave petition filed by the petitioner in the Supreme
Court had been dismissed by a non-speaking order."
Supreme Court Employees’ Welfare Association Vs. Union
of India and Anrs. Reported in 1989 (4) SCC 187
"\005Articles 226 and 136 \026 Res judicata \026 Supreme Court
dismissing SLP in limine \026 Held, decision of High Court
against which the SLP had been filed would not thereby
operate as res judicata \026 Civil Procedure Code, 1908,
Section 11"
P. Nallammal and Anr. Vs. State Represented by
Inspector of Police reported in 1999 (6) SCC 559
"\005- Arts. 136 and 141 \026 Effect of grant/dismissal of SLP \026
Dismissal of SLP does not amount to upholding of the law
propounded in the decision sought to be appealed against"
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Commissioner of Income Tax, Bangalore Vs. Shree
Majunatheaware Packing Products & Camphor Works ,
reported in 1998 (1) SCC 598
"\005 - Art. 136 \026 Summary dismissal of SLP \026 Effeft \026 Held,
does not mean approval of the view taken by the High
Court"
This Court while remanding the matter to the Tribunal
categorically stated that all these matters should be sent to the State
Transport Appellate Tribunal which shall treat the writ petitions filed in
the High Court as appeals and after hearing all the parties, dispose
of the matters in accordance with law. This Court never expressed
any opinion on the merits of the case whatsoever. Therefore, the
dismissal of SLPs pertaining to the route in question by various
orders of this Court neither amounts to res judicata nor does it
amount that order passed by the High Court amounts to upholding
the law propounded in the decision sought to be appealed against.
More so, the effect of these two notifications i.e. February 12, 1952
and September 3, 1994 were not considered by this Court or High
Court or Tribunal or STA.
Once a scheme is notified it prohibits the plying of private
vehicle except as permitted by Scheme. Both Schemes nowhere
permit operation by private operators. This is a settled proposition of
law that in notified Scheme private operator can operate except
permitted by the Scheme. In this connection reference may be made
to the decision of this Court in the case of Karnataka State Road
Transport Corporation vs. Ashrfulla Khan & Ors. reported in (2002) 2
SCC 560 wherein Their Lordships after considering earlier decisions
of the Constitution Benches observed as under :
" This means that even in those cases
where the notified route and the route applied for
run over a common sector, the curtailment by
virtue of the notified Scheme would be by
excluding that portion of the route or, in other
words, the ’road’ common to both. The
distinction between ’route’ as the notional line
and ’road’ as the physical track disappears in
the working of Chapter IV-A, because you
cannot curtail the route without curtailing a
portion of the road, and the ruling of the Court to
which we have referred, would also show that
even if the route was different, the area at least
would be the same. The ruling of the Judicial
Committee cannot be made applicable to the
Motor Vehicles Act, particularly Chapter IV-A,
where the intention is to exclude private
operators completely from running over certain
sectors or routes vested in State Transport
Undertakings. In our opinion, therefore, the
appellants were rightly held to be disentitled to
run over those portions of their routes which
were notified as part of the Scheme. Those
portions cannot be said to be different routes,
but must be regarded as portions of the routes
of the private operators, from which the private
operators stood excluded under Section 68-F(2)
) (iii) of the Act.
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In S.Abdul Khader Saheb v. Mysore Revenue
Appellate Tribunal it was held by this Court that
once a Scheme is for total exclusion of operation
of stage carriage services by operators other
than the State Transport Undertaking, the
authorities cannot grant permit under Chapter IV
of the Motor Vehicles Act on any portion of a
notified route. In Mysore SRTC v. Mysore State
Transport Appellate Tribunal it was held that it
is not permissible to grant permit on a portion of
a notified route which has an effect to ply a
stage carriage on the same line of the notified
route excepting an intersection."
In view of the fact that the route from Bijnor to Noorpur was
notified way back in 1952, no permit could have been issued in
pursuance of the resolution dated June 14-15, 1993 and likewise
under notification dated September 3, 1994 when the route from
Muzaffarnagar to Bijnor had been notified, no permit could have been
granted on the aforesaid route as both schemes are of total
exclusion.. Therefore, in view of the law laid down by this Court in the
case of Karnataka State Road Transport Corporation (Supra), the
question no more remains res integra and it is settled principle of law
that no private operators could be permitted to operate on a notified
route except by modifing Scheme and after making provisions for the
same.
As a result of our above discussion, we are of the opinion that
the view taken by the High Court of Allahabad cannot be sustained
and accordingly we allow all these appeals and set aside the
impugned order dated September 26, 1997 passed by the High
Court of Allahabad in Writ Petition Nos. 9990, 23496, 15746 and
20187 of 1997 and dismiss the same with no order as to costs.