Full Judgment Text
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PETITIONER:
S. ABDUL KHADER SAHEB
Vs.
RESPONDENT:
THE MYSORE REVENUE APPELLATE TRIBUNAL,BANGALORE & ORS.
DATE OF JUDGMENT09/11/1972
BENCH:
GROVER, A.N.
BENCH:
GROVER, A.N.
MATHEW, KUTTYIL KURIEN
MUKHERJEA, B.K.
CITATION:
1973 AIR 534 1973 SCR (2) 925
1973 SCC (1) 357
CITATOR INFO :
RF 1974 SC1940 (3,31,35)
D 1977 SC1170 (7)
RF 1986 SC 319 (11,12,13)
R 1992 SC1888 (9)
ACT:
Motor Vehicles Act (4 of 1939). s.68-D-Intra-State route,
what is Nationalisation of intra state route-If proviso to
s. 68-D(3) applicable Scheme of nationalisation, if prevails
over inter-state agreement-Scheme excluding all operators
except two categories-Appellant not within exceptions-If
entitled to permit on inter-state route,, when permit made
ineffective on over-lapping portion.
Practice and Procedure-Revocation of special leave.
HEADNOTE:
In August 1964, the States of Mysore and Andra Pradesh
entered. into a reciprocal agreement to introduce stage
carriage services on the inter-State route from Bellary, in
Mysore, to Manthralaya in Andhra Pradesh, via Chintakunta,
the border in Mysore State. By the Bellary scheme which was
approved by the Mysore Government under s. 68-D of the Motor
Vehicles Act, 1939 and which came into force in May,. 1964,
it was provided that only the State Transport Undertakings
will operate services on the route Bellary to Chintakunta to
the complete: exclusion of other persons, except in regard
to the portions of the interdistrict routes lying outside
the limits of Bellary district. The existing, permit-
holders of inter-state routes were allowed to operate such
interState routes subject to the condition that their permit
shall be rendered ineffective by the competent authority on
the overlapping portion in.the Bellary district.
In the present case, the Regional Transport Authority called
for applications for the grant of a permit on the inter-
State route in 1965 and the appellant was one of the
applicants. The Mysore Revenue Appellant Tribunal, in
appeal, granted the permit to the appellant with the
condition that no passenger was to be picked up portion of
the road overlapping the notified route, of is Bellary to
Chintakunta). The High Court, in a not agree with the view
of the Tribunal that even total exclusion from Bellary to
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Chintakunta border, issued in respect of the overlapping
portion of the or set down on the the scheme (that writ
petition, did under a scheme of a permit could be inter-
State route by making that permit ineffective on that
portion, and remanded the matter to the State Transport
Authority for reconsideration in accordance with law.
Dismissing the appeal to this Court,
HELD :(I) There is no scheme of nationalisation relating to
the inter-State route from Bellary to Manthralaya and the
Bellary scheme is confined only to the inter-State routes,
one of which is the Bellary--Chintakunta route whose
terminii were within the State. It could be
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nationalised by the State of Mysore under the provisions of
s.68-D even though that portion overlaps the inter-State
route from Bellary to Manthralaya. [930 E-F; 931 C]
B. H. Aswathanarayan Singh & Ors. v. State of Mysore &
Ors., [1966] 1 S.C.R., 87, referred to.
(2) Since the scheme did not deal with an inter-State route
at all no question of the applicability of the proviso to
S.68-D(3), which requires the previous approval of the
Central Government arises. [930 D]
(3) A scheme of nationalisation approved under s. 68-D
would prevail over an inter-State agreement in respect of an
inter-State route. [929 G-H; 930 A-B]
T. N. Raghunatha Reddy v. Mysore State Transport
Authority, [1970] 3 S. C. R. 780, followed.
(4) In Thippeswamy’s case (A I.R. 1972 S.C. 1674) it was
held that according to the scheme all operators excepting
those mentioned in the scheme are excluded from the
nationalised routes. The only two exceptions were with
regard to inter-district operators and the existing permit-
holders on inter-State routes. Since the appellant did not
fall within either of these two categories it was not
possible to accede to the appellant’s contention that
because the scheme merely provides for partial ,exclusion
it was open to the authorities concerned to issue a permit
for the route overlapping the inter-state route. [929 E-G]
Thippeswamy v. The Mysore Appellate Tribunal, A.I.R. 1972
S.C. 1674 followed.
(5) In the application for stay filed along with the
application for special leave it was stated that special
leave had been granted in Thippeswamys case, but, by the
time the petition for special leave came up for hearing the
appeal in Thippeswamy’s case had been dismissed. .But this
fact was not mentioned to the Court. However, it was not a
,case for revocation of special leave, because, there was
nothing to show that a reference was made to Thippeswamy’s
case, in arguments, when special leave was granted, [928 B-
E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1400 and
1401 of 1972.
Appeals by special leave from the judgment and order dated
February 29, 1972 of the Mysore High Court at Bangalore in
Writ Petitions Nos. 2561 of 1968 and 272 of 1969.
M. C. Setalvad, S. S. Javali and G. N Rao for the
appellants.
K. N. Bhatt for respondent No. 7.
L. N. Sinha Solicitor-General of India, Shyamala Pappu
and J. Ramamurthi for respondent No, 8.
The Judgment of the Court was delivered by
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GROVER, J. These appeals have been brought by special leave
from a judgment of the Mysore High Court.
The facts briefly are that in August 1964 the States of
Mysore and Andhra Pradesh entered into a reciprocal
agreement to introduce stage carriage services on the,
inter-State route from Bellary
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in Mysore State to Manthralaya in Andhra Pradesh via Chinta-
kunta. In August 1965 the Regional Transport Authority,
Bellary, called for applications for the grant of stage
carriage permit for the aforesaid route. The appellant,
respondents 7 and 8 and several others filed applications
for the grant of a permit. After complying with the
necessary formalities required under the relevant.
provisions of the Motor Vehicles Act, 1939, hereinafter
called the ’Act’, the Regional Transport Authority granted
permits to the appellant and respondent No. 7 for one trip
each day at its meeting held in August 1966. By the time
the Regional Transport Authority had issued the notification
calling for the applications. the scheme had been approved
by the Government of Mysore under s. 68-D of the Act. Under
this scheme which was popularly known as the ’Bellary
Scheme’ and which came into force with effect from May 7,
1964 a portion of the road in question, via, from Bellary to
the district border (Chintakunta border) operators other
than those mentioned in the scheme were, totally excluded
and only State Transport Undertaking could operate the
services. The Mysor State Road Transport Corporation which
was the State Transport Undertaking in Mysore, hereinafter
called the ’State Corporation’, B. Subba Rao, the appellant
and certain other persons filed appeals before the Mysore
State Transport Appellate Tribunal. After hearing the
appeals the Tribunal remitted the case to the Regional
Transport Authority for a fresh disposal. Aggrieved by the
remand order the appellant, the State. Corporation and
others filed appeals before the Mysore Revenue Appellate
Tribunal. This Tribunal allowed the appeal of the appellant
in its entirety and granted him a permit for the interState
route with the condition that no passenger was to be picked
up or set down on the portion of the road overlapping the
notified route of the Bellary scheme. The appeals of others
were dismissed. Two writ petitions were filed before the
High Court, one by the State Corporation and the other by B.
Subba Rao challenging the, order of the Revenue Appellate
Tribunal.
The High Court disposed of the writ petition on the ground:
"When once on a route or a portion of the
route there has been total exclusion of
operation of stage carriage services by
operators other than the State Transport
Undertaking by virtue of a clause in an
approved Scheme, the authorities granting
permit under Chapter IV of the Motor Vehicles
Act, should refrain from granting a permit
contrary to the Scheme".
The High Court did not agree with the view of the Revenue
Appellate Tribunal that even under a Scheme of total
exclusion from Bellary to Chintakunta border a permit could
be issued in respect of the overlapping portion of the
inter-State route by making that
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permit ineffective. The High Court consequently directed a
remand to the State Transport Authority to reconsider the
matter and dispose of the same in accordance with law.
Although in the special leave petition there was no mention
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of a connected appeal which was pending in this Court, in
the application for stay,- it was stated by the appellant
that special leave had been granted in the case D. M.
Thippeswamy v. The Mysore Appellate Tribunal Bangalore &
Others(1) against the judgment of the Mysore High Court in
which a similar view had been taken with regard to the scope
and ambit of the Bellary scheme. It is .common ground that
by the time the petition for special leave came up for
hearing before this Court that appeal had been dismissed.
This led to the State Corporation filing a petition for
revocation of special leave (C.M.P. No. 7383/72) on the
ground that the fact ,of the dismissal of Thippeswamy’s
appeal by this Court on May 4, 1972 had been suppressed at
the time when the petition for special leave was argued. An
affidavit has been filed by Mr. S. S. Javali advocate who
had appeared at the special leave stage. He has stated that
according to him Thippeswamy’s case was not relevant as the
facts there were different and no reference was called for
or made to it in the arguments. It has also been pointed
out that in that very case by a subsequent order dated
September 29, 1970 certain clarifications have been made.
This, it has been contended. now shows that the decision in
that case was not apposite for the purpose. of the present
appeals. We do not consider that any case for revocation of
the special leave has been made out and the prayer in that
behalf is hereby declined.
’Bellary Scheme’ was approved under S. 68-D of the Act sub-
ject to certain modifications by the Mysore Government by a
notification date d April 18, 1964. It was provided in the
scheme that the State Transport Undertaking will operate
services on all the routes to the complete exclusion of
other persons except in regard to the portions of inter-
district routes lying outside the limits of Bellary
district. The existing permit-holders on inter-State routes
could be allowed to operate such inter-State routes, subject
to the condition that their permits shall be rendered
ineffective by the competent authority for the overlapping
portion in the district of Bellary. In Thippeswamy’s case
(supra) this very scheme came up for consideration. The
question, however, which arose was whether the appellant
there was not an existing permit-holder when the State
Corporation applied for a permit for the route in question.
The following observations were made on this point :
"The question whether the ’Bellary Scheme’
provides for the total exclusion of all
operators on the nationalised
(1) A.I.R. 1972 S.C. 1674.
929
routes or it merely provides for partial
exclusion is, in our opinion, wholly
irrelevant. All that we have to see is what
the scheme says ? Whom does it exclude ? It is
quite plain from the language of the clause
referred to earlier that all operators
excepting those mentioned therein are excluded
from the nationalised routes. To the general
exclusion made therein, there are two
exceptions. The first one relates to inter-
district operators and the second to existing
permit holders on the inter-state routes. The
appellant does not claim to come under the
first exception. For the reasons already
mentioned his case is not covered by the
second exception".
The argument of- Mr. M. C. Setalvad for the appellant is
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that no decision was given in Trippeswamy’s case (supra)
that the Bellary scheme provides for a total exclusion of
all operators on the nationalised routes. He has also sought
to distinguish that case by pointing out that the
controversy there was confined to the question whether the
appellant was an existing permit holder on the inter-state
route. It has further been stated that in the present case
no permit has sofar been issued to the State Corporation
because it has failed to comply with certain provisions and
in particular with the requirement of s. 20 of the Road
Transport Corporations Act 1950. It may be that the facts
are somewhat different here. The view which, the High Court
in the present case took was that after the Bellary Scheme
had come into force the operators other than the State
Transport Undertaking were totally excluded. In
Thippeswamy’s case (supra) also it is clear from the portion
already extracted from the judgment of this Court that
according to the scheme all operators excepting those
mentioned in the scheme are excluded from the nationalised
routes. The two exceptions which have been made are only
with regard to the inter-district operators and the existing
permit holders on interstate routes. Mr. Setalvad does not
claim that the appellant falls within either of these
categories. It is, therefore, not possible to accede to his
contention that because the scheme merely provides for
partial exclusion it is open to the authorities concerned to
issue a permit for the route overlapping the inter-state
route.
The next point on which a great deal of emphasis has been
laid on behalf of the appellant is that an inter-state route
comes into existence by virtue of an agreement between the
States through which the route passes. The main provisions
in that respect are to be found in s. 63 of the Act. Any
scheme of nationalisation of a route by a State, as approved
under s. 68-D, cannot override the inter-state agreements in
respect of the inter-state routes. This Court has in T. N.
Raghunatha Reddy v. Mysore
930
State Transport Authority(1) answered this question in the
negative. It has been held that the inter-state agreement
is not law and to hold that an inter-state agreement
overrides Chapter IV-A would be to completely disregard the
provisions of S. 68-B of the Act. In other words a scheme
of nationalisation approved under s. 68-D would prevail over
an inter-state agreement in respect of an interstate route.
Sub-section (3) of s. 68-D of the Act has also been relied
upon by Mr. Setalvad. According to that provision the
scheme as approved or modified shall be published in the
official gazette and the same shall thereupon become final.
The proviso, however, says that no such scheme which relates
to any inter-State route shall be deemed to be an approved
scheme unless it has been published in the official gazette
with the previous approval of the Central Government. No
scheme in the present case has been approved under the
proviso relating to the inter-State route in question. We
are unable to see how the proviso to s. 68-D(3) can be of
any avail to the appellant. The aforesaid provision be-
/comes material only when a scheme covers an inter-State
route. The Bellary scheme provides for nationalisation of
an intra-State route and not an inter-State route and the
aforesaid provision can have no applicability.
Although respondent No. 7 has not appealed, counsel appear-
ing for him has called attention to the observations of this
Court in B. H. Aswathanarayan Singh & Others v. State of
Mysore & Others (2) that an inter-State route is one in
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which one of the terminii is in one State and the other in
another State. Where both the terminii are in one State the
question of an inter-State route does not arise. If part of
the scheme covers routes which continue beyond the State and
connect various points in the State of Mysore with those in
the other State it does not make the scheme one connected
with inter-State route. It is sought to be argued from this
that even if Bellary-Chintakunta route which is shown as
item 34 in the Bellary Scheme has been nationalised it does
not make the scheme one connected with inter-State route.
Stress has been laid on the example given that the Grand
Trunk Road runs from Calcutta to Amritsar and passes through
many States and any portion of it within a State can be a
route for purposes of stage carriage but that would not make
such a route a part of an inter-State route even though it
lies on the road which runs through many States.
The above argument can possibly have no validity so far as
the present case is concerned. The scheme which was under
consideration in the decision relied upon was in respect of
an intra-
(1) [1970] 3 S.C.R. 780.
(2) [1966] 1 S.C.R. 87.
931
rate route. It appears to have been argued that as the
scheme was concerned with an inter-state route the approval
of the Central Government was necessary as required under
the proviso to s. 68D(3) of the Act. This Court held that
since the terminii were within the State of Mysore the
scheme did not deal with an interstate route at all and no
question arose of the applicability of the proviso to s.
68D(3). In the present case there is no scheme of
nationalisation relating to the inter-state route from
Bellary to Manthralaya. The Bellary Scheme is confined to
the intrastate routes, one of those being the Bellary-
Chintakunta route. It may be that portion overlaps the
inter-state route from Bellary to Manthralaya but so long as
it is an intrastate route it could be nationalised by the
State of Mysore under the provisions of s. 68D. That having
been done the decision in Thippeswamy’s case(1) (supra) will
appositely apply.
In the result the appeals fail and they are dismissed with
costs, to respondent No. 8.
V.P.S. Appeals. dismissed.
932