Full Judgment Text
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PETITIONER:
A.P.S.R.T.C.
Vs.
RESPONDENT:
STATE TRANSPORT APPELLATE TRIBUNAL AND OTHERS
DATE OF JUDGMENT: 11/08/1998
BENCH:
S.C. AGRAWAL, S. SAGHIR AHMAD, M. SRINIVASAN
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T S
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 21474 OF 1997
WITH
C.A. Nos. 3716 to 3738 of 1998 & 3740 to 3742 of 1998
SLP (C) NOS. 547/98, 598/98, 1116/98, 1171/98. 1139/98,
1118/98, 1122/98, 1138/98, 1168/98, 1128/98, 1117/98,
1172/98, 1281/98, 1304/98, 1642/98, 1787/98, 1758/98,
2001/98, 1530/98, 1628/98, 7553/98, 7542/98, 11127/98,
22779/97, 22781/98, 22299/97.
SRINIVASAN, j.
Leave granted.
The common questions which arise for decision in these
cases depend on the interpretation of Rule 258 of the Andhra
Pradesh Motor Vehicles Rules, 1989 (for short, the ’Rules’)
which is in the following terms:-
"RULE 258:-
FIXATION OF STAGES FOR CARRIAGES:
1. In the case of stage
carriage, the Regional
Transport Authority shall,
after consultation with such
other authority as it may deem
desirable, fix stages on all
bus routes except town
service. The maximum distance
of each stage shall not
ordinarily exceed 6.4
kilometres. When stages are so
fixed, fares shall be
collected according to stages.
Explanation:- When a passenger gets
into or gets down from a stage
carriage at a place lying in
between two stages, he shall pay
the fare from the stage preceding
the place where he gets into the
bus to the stage succeeding the
place where he gets down.
2. The Regional Transport
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Authority shall, subject to
the following restrictions,
determine which are town
service routes.
(i) at least one terminus of
every town service shall lie
within the limits of a
municipality or any built up
place notified in the Andhra
Pradesh Gazette as ’town’ for
this purpose by the Regional
Transport Authority concerned,
with the prior concurrence of
the State Transport Authority.
(ii) No route of town service
shall extend more than 8
kilometres beyond the limits
of the Municipality of or town
from which it starts, provided
that this restriction shall
not apply to any town service
routes, which were in
existence on the date of
coming of these rules into
force or in respect of those
routes for which specific
permission of the Transport
Commissioner is obtained.
(iii) No route shall be
determined as both town and
muffasal service routes".
2. The Government of Andhra Pradesh notified in GOMS No.
695, Transport, Roads & Buildings (P-IV), 20th September,
1988 a Scheme published by the appellant in these cases
relating to the route Chilukuru to Gutlapadu. Section 104 of
the Motor Vehicles Act, 1988 (for short, the ’Act’)
prohibits the grant of any permit except in accordance with
the provisions of the scheme. The scheme sets out five
exceptions and hey are:-
1. The State Transport
Undertakings:
2. The holders of stage carriage
permits in respect of town
services:
3. The holders of stage carriage
permits in respect of inter-State
routes overlapping on the notified
route;
4. The holders of stage carriage
permits in respect of such route or
routes overlapping not more than 8
kms. on the notified route; and
5. The services operated by
Devasthanams.
3. The third respondent in S.L.P(C) NO 21474/97 filed an
application for grant of pucca stage carriage permit to ply
his buses on the route Bhimavaram old bus stand to Losari.
The total length of the said route was 19.2 Kms. comprising
4.3 Kms. within the municipal limits of Bhimavaram and 14.9
Kms. beyond the municipal limits with an overlapping of 12.3
Kms on the notified route under the scheme. The Regional
Transport Authority rejected it on the ground that the
overlapping exceeded 8 Kms. On appeal, the State Transport
Appellate Tribunal held that the route applied for was a
town service route falling under the second exception set
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out in the scheme. The Tribunal allowed the appeal and
granted the permit to the third respondent on condition that
the Transport Commissioner granted permission as
contemplated in Rule 258 (2) (ii) of the Rules. The Tribunal
directed the Secretary of the Regional Transport Authority
to issue permit on production of permission of the Transport
Commissioner.
4. T he Tribunal’s order was challenged by the appellant in
Writ Petition No. 19258 of 1994 in the High Court of Andhra
Pradesh. The High Court rejected the contention of the
appellant that the permission of the Transport Commissioner
under Rule 258 (2) (ii) was a condition precedent for filing
an application for route permit when there was a scheme
governing the route. The High Court also held that the power
of the Transport Commissioner under Rule 258 (2) (ii) was
unlimited. Consequently the writ petition was dismissed.
Following that judgment, the writ petitions filed by the
appellant against the grants in the other cases were
dismissed.
5. Though it is not necessary to set out the facts in each
case as they are similar, it will be very useful to
reproduce the tabular statement furnished by learned counsel
for the appellant containing the particulars of the route,
total distance, extension beyond municipal limits and the
extent of overlapping in each case
PARTICULARS OF THE ROUTE IN SLP 21474/97 & BATCH
------------------------------------------------------------
Sl. SLP NO. NAME OF THE PERMITTED ROUTE TOTAL BEYOND OVER
NO. RESPONDENT FROM AND TO DISTANCE MUNICIPAL
LIMITS LAPP-
ING
------------------------------------------------------------
1. 21474/97 Sri Ch Bhimavaram to 19.2 km 14.9 km 12.3km
Nageswar- Lasari
arao
2. 547/98 M. Sridhar New Godavari 22.9 km 19.9 km 22.6km
Rly.
st. to Seeth-
anagaram
3. 598/98 Sri Ch.V.R.Gokavaram Bus 23.8 km 17.6 km 21.6km
Prasad stand to Dwa-
rapudi Market
4. 1116/98 Sri T.Kasi Tanuku Rly St, 16.7 km 14.4 km 16.7km
Annapur- Attoli Bus
naraju Stand
5. 1171/98 M. Rama Bhimavaram New 20.4 km 14.9 km 13.5km
Rao Bus stand to
Lasari
6. 1139/98 Sri B.Bha- Gokavaram Bus 23.8 km 17.6 km 21.6km
skar Rao Stand to Dwar-
apudi Market
7. 1118/98 Sri Sama Tadepalligudam 16.5 km 12.3 km 15.6km
Raju DRJ Lomens Col-
lege to Ravipa-
du Via Bus dept.
Indian bank centre
Vijaya vihar Ce-
ntre D.R.D. Govt.
College mulanur
centre, Chilaka-
rampadu New bri-
dge, Kanipadu,
Chintapalli.
8. 1122/98 Sri M.D.S. Tanuku Rly St. 16.7 km 16.7 km 13.4km
R.N. Road to Athili
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Chandra Bus stand
9. 1138/98 Sri I. Bhimavaram old 19.2 km 14.9 km 12.3km
Surya Rao bus stand to
Lasari
10.1168/98 Sri Ch. Rajahmundry 25.0 km 24.7 km 26.0km
Nageswara bus stand to
Rao Akiveedu High
Bhimavaram
Centre.
12.1172/98 Sri B.T. Bhimavaram Ke- 26 km 24.7 km 26 km
Shyam opella Jakkara-
m, Kallu, Kai-
kaluru Juvvapa-
lem Elurupadu,
and Bhimavaram
13.1281/98 Sri Ch. New Godavari 22.9 km 19.9 km 22.9km
Nagalakshmi Rly. St. to
via Gokavaram
Bus stand A.P.
paper Mills,
Kateru
14.1204/98 G. Shekhar Palacole 15 km 13 km 12 km
Surya Rao Basic School
to Burugupalle
15.1623/98 Kum.B.Si- Prodduturu bus 15.9 km 1.0 km 3.8km
valakshmi stand to Duvvur
Das (via) Gopavaram
and Kamanuru
16.1626/98 Sri Purna- Bhimavaram New 17 km 13.8 km 14.8km
chandrarao bus stand to
Doddanapudi
(via) Pedameram
Jakkaram and
Kalla
17.1642/98 Sri M. Bhimavaram bus 19.2 km 14.9 km 12.3km
Sreeama stand to Lasari
Murthy (via) DNR.
College, Yana-
madururrever,
Gollavaripeta,
Gutlaparu Rever
18.1887/98 Sri G. Tadepallegudem 19 km 15 km 15 km
Somalaksh- DJR Womens col-
mi lege, to Ganap-
avaram Panchayat,
Office
19.1758/98 Sri C. Tanuku polyte- 28.6 km 25.3 km 16.8km
Adinarayana chnic Penugonda
bus stand via
Komavaram. Ma-
halakshmicher-
uvu, Coteru,
Irugovaram
Junction Kot-
hapadu Kakile-
ru Kayetipodu
Kakileru Kayet-
ipodu subbaraidu
Peta, Penugada.
20.2001/98 Sri Rama- Tanuku Bus 23.4 km 22.9 km 22.9km
chandra stand to Attili
rao
21.1530/98 M.D.R.S.N. Tanukum Rly. 16.7 km 14.4 km 16.7km
Chowdary st. Road to
Attili Bus
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Stand via Na-
rendra Centre
Velpur Bus st-
and, Relenji
centre, Relenji
Centre, Govar-
alapalem, A.
Samudrapugatta.
22.1117/98 A.Venkat- Tanuku Polytec- 23.4 km 17.3 km 0.2km
eswara Rao nic college to
Penugonda Bus
stand to Lasari
23.7542/98 Sri K. Rajahmundry Goka-23.4 km 17.3 km 0.2km
Srinivasa varam Bus stand
Murthy to Dwarapudi
Mkt. (via)
Devi Chowk,
Jampeta Gandhi,
Statue, Churc-
ehate Apsara
Theatre, Delux
Centre, Kotip-
alli, Bus stand
24.22781/97 Sri M. Dokavaram Bus 23.8 km 17.6 km 21.6km
Gopala stand to Dwara-
Krishna pudi Mkt.
25.22779/97 Sr. A.Sv. Bhimavaram New 29.5 km 25.5 km 25.1km
Nageswara- Bus stand to
rao Mogalthur
26.22299/97 Sri B.T. Bhimavaram to 20.4 km 14.9 km 13.5km
Shyam Lasari
The S.L.P. in Serial No. 15, that is S.L.P. 1623/98, has
been dismissed as ’not pressed’ by a separate order
6. On the above facts, the following questions are
debated:-
(i) Whether the permission of the Transport Commissioner
contemplated in Rule 258 (2) (ii) of the Rules should be
obtained before an application for permit is filed for a
route covered by a scheme notified under the Act?
(ii) whether the Transport Commissioner’s power to extend a
town service route more than 8 Kms. beyond the limits of the
Municipality or town is unlimited?
7. Rules 258 uses the expression "town service". Sub-rule
(1) enjoins the Regional Transport Authority to fix stages
on all bus routes except town service after consultation
with such other authority as it may deem desirable. Sub-
rule (2) directs the Regional Transport Authority to
determine which are town service routes subject to the
restrictions mentioned therein. There are three restrictions
set out in the sub-rule.
(a) At least one terminus of every town service shall lie
within the municipal limits or any built up places notified
in the State Gazette as "town" for the purpose of the rule
by the said authority with the prior concurrence of the
State Transport Authority.
(b) The route of town service shall not extend more than 8
kilometres beyond the municipal limits or town limits but
such restriction shall not apply to town service routes
which already existed on the date of coming into force of
the rules or in respect of which routes specific permission
of the Transport Commissioner is obtained
(c) No route shall be determined as both town and muffasal
service routes. The expression "town service" has not been
used in any other rule or any provision in the Act. The
expression has not been defined anywhere.
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8. Our attention has been drawn to sections 70 and 71 of
the Act which provide for application for stage carriage
permit and prescribe the procedure in considering the said
application. Neither section throws any light as to what is
a "town service route". On the other hand Section 71(3)(a)
refers to city routes in towns with a population of not less
than five lakhs. We have also been taken through rules 171
to 174 and 179. There is no guidance in any of the said
rules with reference to the expression "town service". There
is no prescribed form of application for permit for a town
service route; nor is there any prescribed form of permit.
9. In the normal connotation, ’town service route’ would
mean a route within a town to enable passengers to go from
one place to another in the town. But generally people in
the peripheral and neighbouring areas would be frequenting
the town and to serve them, buses have to ply between a
place in the town and a place outside. hence, the rule
provides for an extension of 8 kms beyond the limits of the
town or municipality.
10. Bearing that in mind we have to construe Rule 258 (2)
in the light of Section 98 to 100 and 104 of the Act.
Section 98 provides that the provisions of Chapter VI and
the rules and orders made thereunder shall have overriding
effect against anything inconsistent in Chapter V or any
other law for the time being in force. Section 99 deals with
preparation and publication of proposals regarding road
transport service of a State Transport Undertaking. Section
100 deals with publication of proposal and a notification of
the scheme after consideration of the objections to the
proposal. Section 104 as stated earlier, prohibits the grant
of any permit except in accordance with the provisions of
the scheme. hence for the purpose of Rule 258(2), if there
is a scheme in force with reference to the concerned route,
the authority has to adhere to the terms of the scheme. If
there is an absolute bar in the scheme against the grant of
any permit for the notified route or any portion of the
route nothing further could be done. On the other hand if
there is any exception provided in the scheme the applicant
for a permit has to satisfy the authority concerned that he
would fall within the scope of the exception. When the
scheme provides an exception for the holder of stage
carriage permit in respect of town service any applicant for
permit claiming the benefit thereof has to necessarily
satisfy the Regional Transport Authority that the route for
which the permit is sought is a town service route. In
order to establish the same the applicant for permit has to
approach the Transport Commissioner in the first instance if
the route for which permit is sought extends more than 8
kilometres beyond the limits of the municipality or town
from which it starts. In such cases, it is only when the
Transport Commissioner grants specific permission for
extension of the route for more than 8 kilometres beyond the
limits of the municipality or town, the Regional Transport
Authority can consider the application for grant of permit
and proceed to pass orders. It is only on the basis of the
Transport Commissioner’s permission the Regional Transport
Authority can determine the town service routes. hence our
answer to the first question is that the permission of the
Transport Commissioner contemplated in Rule 258(2) of the
rules has to be obtained before an application for permit is
filed for a route covered by a scheme notified under the
Act.
11. Admittedly in none of these case such permission was
obtained. Learned counsel for the respondents contended that
in all these cases the actual issue of permit was after the
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grant of permission by the Transport Commissioner and there
was no violation of the rule. According to him, grant of
permit and issue of permit are the same. The argument is
fallacious. The grant of permit in these cases is by the
Tribunal before the grant of permission by the Transport
Commissioner. The Tribunal itself directed issue of permit
by the Secretary to the R.T.A. after receipt of record
evidencing Transport Commissioner’s permission. The actual
issue of permit was only a ministerial act and it cannot be
equated to the grant of permit. The Tribunal acted beyond
its jurisdiction in granting permits in all these cases.
12. Turning to the second question, there is no doubt that
rule 258(2) does not specify or indicate the limits of the
power of the Transport Commissioner but it is certainly
erroneous to think that the power of the Transport
Commissioner is unlimited. If that is so, the very purpose
of the rule providing for a limit of 8 kilometres of
extension beyond the limits of municipality or town will be
defeated. The power of the Commissioner cannot be
arbitrarily or indiscriminately exercised. According to
learned counsel for the appellant, the power is coupled with
a duty.
13. Though there is no direct ruling on the point, learned
counsel for the appellant has drawn our attention to two
passages in de Smith’s Judicial Review of Administrative
Action, Fourth Edition, pages 283 and 285 which read as
follows:
Page 283:-
"An authority may have a discretion
whether to exercise a power, and a
discretion in the manner of
exercising it. But discretionary
powers are frequently coupled with
duties. A Minister may be empowered
to confirm or refuse to confirm a
compulsory purchase order. In
making his decision he is entitled
to exercise a very wide discretion,
but he is under a legal duty to
determine the application for
confirmation one way or the other.
Again, to the extent that a
discretionary power is not
absolute, the repository of a
discretion is under a legal duty to
observe certain requirements that
condition the manner in which its
discretion may be exercised."
Page 285:-
"The relevant principles formulated
by the courts may be broadly
summarised as follows. The
authority in which a discretion is
authority in which a discretion is
vested can be compelled to exercise
that discretion, but not to
exercise it in any particular
manner. In general, a discretion
must be exercised only by the
authority to which it is committed.
That authority must genuinely
address itself to the matter before
it: it must not act under the
dictation of another body or
disable itself from exercising a
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discretion in each individual case.
In the purported exercise of its
discretion it must not do what it
has been forbidden to do, nor must
it do what it has not been
authorised to do. it must act in
good faith, must have regard to all
relevant considerations and must
not be swayed by irrelevant
considerations, must not seek to
promote purposes alien to the
letter or to the spirit of the
legislation that gives it power to
act, and must not act arbitrarily
or capriciously."
14. Reliance is placed on Comptroller and Auditor-General
of India vs. K.S. Jagannathan and another (1986) 2 SCC 679
wherein it is said; "It is now necessary to examine the
nature of the discretion conferred by the said Office
memorandum dated January 21, 1997 - "whether it is a
discretionary power simpliciter or a discretionary power
coupled with a duty?" From the provisions of the
Constitution referred to above, it is transparently clear
that it is a discretion to be exercised in the discharge of
the constitutional duty imposed by Article 335 to take into
consideration the claim of the members of the Scheduled
Castes and the Scheduled Tribes, consistently with the
maintenance of efficiency of administration, in the making
of appointments to services and posts in connection with the
affairs of the Union or of a State."
15. Reference was also made to C. Kasturi and another vs.
Secretary, Regional Transport Authority and another 91996) 8
SCC 314 decided by a bench of three Judges to which one of
us (Justice Saghir Ahmad) was a party. Dealing with the
corresponding old rule namely, Rule 282(2)(ii) of the Andhra
Pradesh Motor Vehicles Rules, 1964, the Bench observed:
"It would, thus, be clear that once
a notified draft scheme has been
approved and published the private
operators operate their services on
the notified route strictly in
accordance with the scheme only and
within the exceptions engrafted
thereunder. By necessary
implication, the "town service" as
defined in Rule 282(2)(ii) has to
be read subject to the scheme in
Chapter. IV-A of the repealed Act.
If so read, clauses 2, 3 and 4 are
to operate as an exception and they
provide only a right to overlap not
more than 8 Kms in the notified
route. Otherwise, the town service
will cease to be town service and
would get transformed into a
moffussil route and the private
operator would run his stage
carriage along the line of the
notified route which is
impermissible. When so read, though
under Rule 282(2)(ii) town service
extends upto 8 Kms from the
municipal limits that does not give
any right to a holder of a town
service stage carriage permit to
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run his vehicle beyond 8 Kms on the
notified route nor does it extend
to 8 Kms overlapping on the
notified route from municipal
limits."
16. Learned counsel for the appellant has pointed out
rightly that in these cases the Transport Commissioner has
granted permission for extension of the town service route
by not less than 12 kilometres excepting in one or two
cases. The tabular statement reproduced by us earlier shows
that the extension is not only much more than 8 kilometres
beyond the municipal limits but also the overlapping on the
notified route is more than 12 kilometres excepting in one
or two cases. Thus it is evident that the Transport
Commissioner has not applied his mind to the relevant
factors in these cases.
17. Learned counsel for the respondents has submitted that
without making the transport Commissioner a party to these
proceedings the orders passed by him cannot be questioned by
the appellant. We do not find any merit in the contention.
There is no necessity for Transport Commissioner to be a
party to these proceedings., We are construing Rule 258(2)
and deciding the scope of the power to be exercised by the
Transport Commissioner under that rule. While doing so it is
open to this Court to pint out that in the present case the
power has been exercised arbitrarily.
18. Though we do not propose to fix any specific limit upto
which the Transport Commissioner can extend the town service
route it must be pointed out that in no case the permission
granted by the Transport Commissioner should have the affect
of converting a town service route into a muffasal service
route. In other words a muffasal service cannot be labelled
as town service by virtue of the permission granted by the
Transport Commissioner though in fact it would be a muffasal
service. Apart from the above guidelines, the Transport
Commissioner must also bear in mind that in
20. In the result, we answer the second question in the
negative and hold that the power of the Transport
commissioner to extend a town service route more than 8
Kilometres beyond the limits of the municipality or town is
to be exercised in an appropriate manner in accordance with
the guidelines set out in para 18 above.
21. Consequently, the appeals are allowed and the orders of
the High Court as well as those of the State Transport
Appellate Tribunal are set aside. The orders of the Regional
Transport Authority rejecting the applications of the
respondents are restored. There will be no order as to
costs.