Full Judgment Text
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PETITIONER:
S. KANNAN & OTHERS ETC.
Vs.
RESPONDENT:
SECRETARY, KARNATAKA STATEROAD TRANSPORT AUTHORITY
DATE OF JUDGMENT29/08/1983
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
CITATION:
1983 AIR 1065 1983 SCR (3) 740
1984 SCC (1) 375 1983 SCALE (2)212
CITATOR INFO :
RF 1984 SC1244 (2)
ACT:
Motor Vehicles Act, 1939-Sec. 63(7)-All India Tourist
Permit. Sec. 62- Interpretation of. Sec. 62 does not
comprehend power to grant temporary all India Tourist
Permit-Expression Regional Transport Authority in Sec. 62
does not comprehend State Transport Authority. Sec. 62(1)
does not provide for grant of temporary permits pending
grant of a regular permit.
HEADNOTE:
In order to promote tourism, the Motor Vehicles Act,
1939 (Act for short) was amended in 1970 and sub-sec. (7)
was inserted in s. 63 empowering the State Transport
Authority in each state to grant permits valid for the whole
or any part of India in respect of such number of tourist
vehicles as may be specified by the Central Government. The
Central Government specified that every State Transport
Authority may grant such permit not exceeding 50 in number.
The State Transport Authority of Karnataka issued 36 such
permits and there were 14 vacancies. Several persons applied
for temporary all India tourist permits to the State
Transport Authority. The State Transport Authority rejected
the applications. On appeal the State Transport Appellate
Tribunal purporting to exercise power under s. 62 of the Act
granted temporary all India tourist permits. On writ
petitions filed by some of the holders of regular permits
under s. 63(7) the High Court quashed and set aside the
decision of the State Transport Appellate Tribunal. The
appellants and the petitioners who had obtained or were
desirous of obtaining temporary all India tourist permits
challenged the correctness of the decision of the High
Court. The appellants urged: (1) that the Regional Transport
Authority can grant temporary all-India tourist permits for
the reasons mentioned in sec. 62; (2) that the State
Transport Authority of Karnataka can grant temporary permits
for the vacancies till regular all-India tourist permits
were granted; (3) that in view of the provisions of sec.
44(3), the expression Regional Transport Authority would
either comprehend State Transport Authority or would not at
least exclude the power conferred on the lower authority to
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be enjoyed by the higher authority; (4) that as far as the
State of Karnataka was concerned, on the issue of
notification under sub-sec. (2A) of sec. 45 the expression
’Regional Transport Authority’ in sec. 62 will also
comprehend State Transport Authority. and, (S) that the
expression ’such permit’ in sec. 63(7) could only mean
regular or all India tourist permit and the temporary all
India tourist permit was not to be catered to by sec. 63(7)
but by sec. 62 and therefore sec. 62 was rightly omitted
from the array of sections set out in sec. 63(7).
Dismissing the appeals, special leave petitions and
writ petitions,
741
^
HELD: There is no power to grant temporary all India
tourist permit under sec. 62. [757 E]
An Authority having jurisdiction over a comparatively
small area is favourably placed to notice a situation as
contemplated by sec. 62. Therefore, sec. 62 confers power on
the Regional Transport Authority, the jurisdiction of which
extends over a region which ii usually a small part of the
State to grant temporary permits to operate vehicles for a
short period to meet some temporary or emergency requirement
or pending the renewal of an already granted permit. There
is intrinsic evidence in the language of sec. 62 that this
power was meant to be used by Regional Transport Authority
for dealing with a situation within its small area. If
Regional Transport Authority is not competent to grant
regular all India tourist permit, no canon of construction
would permit the Court to clothe him with power to grant
temporary all India tourist permit. [752 A-D]
The Madhya Pradesh State Road Transport Corporation v.
the Regional Transport Authority, Raipur, [1965] 3 S.C.R.
786 referred to.
Section 62(1)(d) does not provide for grant of
temporary permits pending grant of a regular permit. On the
contrary the first proviso to Sec. 62(1) makes what is
implicit in cl. (d) explicit by providing that a temporary
permit under sec. 62 shall, in no case, be granted in
respect of any route or area specified in an application for
the grant of a new permit under sec. 46 or sec. 54 during
the pendency of the application. It may be recalled that
sec. 46 provides for an application for a stage carriage and
sec. 54 provides for an application for public carrier’s
permit. Therefore, in no case a temporary permit can be
granted under the section pending grant of or renewal of a
contract carriage permit. Sub-sec. (2) of sec. 62, however,
carves out an exception where a temporary contract carriage
permit can be granted in respect of any route or area where
no permit could be issued by reason of an order of the court
or, other competent authority restraining the issue of the
same. That is not the case here. Therefore, there is no
power to grant a temporary contract carriage permit and ipso
facto the temporary all India tourist permit under sec. 62.
[753 D-G]
Sec. 44(3) merely provides that a State Transport
Authority can perform the duties of a Regional Transport
Authority where there is no such Authority or where, if it
thinks fit or if so required by a Regional Transport
Authority, to perform those duties in respect of any route
common to two or more regions. In the instant case none of
these conditions under which a State Transport Authority can
perform the functions and discharge the duties of a Regional
Transport Authority are satisfied, and therefore, it is
difficult to accept tho submission that the expression
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’Regional Transport Authority’ used in sec. 62 will
comprehend State Transport Authority. Even if in its
application, the Act with its local amendment to the State
of Karnataka sec. 62 would enable the State Transport
Authority to issue a temporary permit this would hardly make
any difference because the power to grant temporary permit
under sec. 62 in the circumstances and eventualities therein
mentioned would not comprehend
742
the power to grant temporary all India tourist permit
because none of the conditions under which the same can be
granted would be attracted and the State Transport Authority
will have no material for satisfaction of one or the other
conditions set out in Sec. 62 which would enable it to grant
such a permit. There is no express provision in the Act
which provides that the State Transport Authority can always
and without any fetter enjoy the power of the Regional
Transport Authority and in the absence of such provision it
is difficult to read merely on the basis of vertical
hierarchy wherever the lower authority is mentioned in the
statue, the higher authority be included therein.
[752 E-H; 753 A-B]
The whole concept of granting temporary all India
tourist permit is foreign to the concept of all India
tourist permit. An all India touris permit is none-the-less
a contract carriage permit but while contract carriage
permit can be granted for any vehicle not required to be
specially adopted for the purpose, a contract carriage
permit for all India operation as envisaged by sec. 63(7)
can only be granted in respect of tourist vehicle, and it
appears that it requires a substantial financial investment
for adapting a vehicle as a tourist vehicle. This intrinsic
evidence shows that such huge or heavy outlay cannot be
imposed on an applicant by giving him temporary all India
tourist permit which can if at all be granted for a period
extending 4 months [756 E-G]
If sec. 62 were to be a proviso to sec. 63(7) and
therefore, one can conceive of granting a temporary all
India tourist permit for meeting a particular temporary
need, it is difficult to envisage a particular need of an
all India variant which can be noticed by State Transport
Authority of one State and such authority can proceed side-
tracking all relevant provisions to grant temporary all
India tourist permit. [756 H; 757 A]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petitions Nos. 7897-7901,
8077 86, 8115-34, 7969-78, 4591-4598 of 1983, 788-92, 1360,
2225, 2365 67 of 1982, 7924-52, 8049-50, 7963-68, 8087-92,
8093-97, 8137-69 5824, 5818, 5233, 4578, 4577, 4574, 4576,
8047-48 of 1983, 7490-92/82, 3560, 5625, 5830, 6071-75,
6083-90, 6098-6101, 6102-29, 6180-88, 7046-47, 7495, 7613-14
7622-26, 7656-60, 7663-68, 7670-82, 8003, 8005, 8006, 4583,
8434-40, 8427-33, 5356-64, 7618-21, 7655, 8391-93, 3326,
3939, 6133-79 of 1983, 9347, 7800 and 9803 of 1982.
(Under article 32 of the Constitution of India).
WITH
Civil Appeal No. 31-34 of 1981.
Appeals from the judgment and order dated the 18th
December, 1980 of the Karnataka High Court in Writ Petitions
Nos. 21090 and 21339 of 1980.
743
AND
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Civil Appeals Nos. 1735-06 of 1981
Appeal by Special leave from the judgment and order
dated the 19th May, 1981 of the Karnataka State Transport
Appellate Tribunal, Bangalore in Appeal Nos. 643 and 644 of
1980.
AND
Special Leave Petition No. 2275 of 1982.
From the Proceedings dated 6th October, 1981 of the
Secretary, Karnataka State Transport Authority Bangalore, in
Subject No. 165 of 1981.
For the Appearing Parties:
K. K. Venugopal, R. B. Datar & Ms. Madhu Mool Chandani,
K. N. Bhatt, A. T. M. Sampath, P. N. Ramalingam, B.P. Singh,
S. S. Javali, N. K Sharma, Harbans Lal, R. N. Poddar, N. S.
Das Bahl, V. G. Mehta, V. K. Verma, P. R. Mridul, Vineet
Kumar, C. S. Vaidyanathan, N. Nettar, B. R. L. Iyengar, P.R.
Ramasesh, P. K. Pillai, R. P. Bhatt, Swaraj Kaushal, M.
Veerappa and A. K. Sharma.
The Judgment of the Court was delivered by
DESAI, J. Appellants and petitioners in this group of
appeals and special leave petition and writ petitions are
persons who have obtained or were desirous of obtaining
temporary tourist permits valid for the whole of India
styled as ’All India Tourist Permit’.
The chronology of events leading to the appeals and
writ petitions may be briefly stated. Sub-sec. (7) was
inserted in Sec. 63 of the Motor Vehicles Act, 1939 (Act for
short) with effect from October 1, 1970 empowering State
Transport Authority in each State, for the purpose of
promoting tourism, to grant permits valid for the whole or
any part of India, in respect of such number of tourist
vehicles as the Central Government may, in respect of that
State, specify in this behalf. The Central Government
specified that the State Transport Authority in each State
may grant permit as
744
contemplated by Sec. 63 (7) not exceeding 50 in number.
Armed with this power, the State Transport Authority of
Karnataka State in all granted 36 such permits. There were
thus 14 vacancies. It appears that several persons applied
for temporary all India tourist permits to the State
Transport Authority of Karnataka State. These applications
for the permits were rejected and some of the applicants who
were respondent Nos. 3 to 11 in the writ petition in the
High Court and who are appellants in this Court preferred
appeals to State Transport Appellate Tribunal. The appellate
tribunal purporting to exercise power under Sec. 62 of the
Act granted temporary all India tourist permits to them.
Some of the holders of regular permits granted under sec. 63
(7) of the Act filed writ petitions in the High Court of
Karnataka. By a common Judgment the Division Bench of the
High Court allowed the writ petitions, inter alia, on the
ground that the grant of a permit under Sec. 63 (7) must be
in accordance with the provisions of the various sections
set out therein which does not include Sec. 62 under which
alone temporary permit can be granted and therefore, grant
of temporary permits for tourist vehicles of all India
operation is not permissible. Accordingly, a writ of
certiorary was issued guashing and setting aside the
decision of the State Transport Appellate Authority. On the
request of the present appellants, the High Court granted a
certificate under Art. 134 A of the Constitution as in its
view a substantial question of law of general importance,
namely, whether a temporary permit can be granted in respect
of a tourist vehicle for all India operation, does arise and
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further in its opinion the question needs to be decided by
the Supreme Court. Hence some appeals by certificate.
Following the decision of the High Court, large number
of appeals pending before the State Transport Appellate
Authority were dismissed and the appellants whose appeals
were dismissed have approached this Court under Art. 136 of
the Constitution. Further a large number of writ petitions
have been filed under Art. 32 of the Constitution
questioning the correctness of the decision of various
transport authorities refusing to grant temporary all India
tourist permits and praying for a writ of mandamus directing
the State Transport Authority of various States to grant
such permits. A further prayer in some of the writ petitions
is to the effect that that part of sub sec. (7) of Sec. 63
which enables the Central Government to prescribe a quota
for each State in resp-ct of all India tourist permits, is
violative of the Constitution and must be declared
unconstitutional.
745
As common questions have been raised in the appeals,
special leave petitions and the writ petitions, they were
heard together and are being disposed of by this common
judgment.
The narrow and the only question that was canvassed
before us is: whether there is power in any of the Transport
Authorities as enumerated in Sec. 44 of the Act to grant
temporary all India tourist permits ? In other words,
whether the power conferred by Sec. 62 of the Act enabling
the Regional Transport Authority without following the
procedure laid down in Sec. 57, to grant temporary permit as
therein envisaged would comprehend the power to grant
temporary all India tourist permits ? We must frankly
confess that this neat question of law is none too easy of
answer and much can be said in support of rival contentions.
At the outset, let it be made distinctly clear that
there is no nomenclature as regular or permanent all India
tourist permit. Sec. 63 (7) has specified a permit that can
be granted by the State Transport Authority of any State,
subject to the quota fixed by the Central Government valid
for the whole or any part of India. In other words, such a
permit would enable the permit holder to undertake an all
India operation which for brevity’s sake may be described as
all India tourist permit. Sec. 63 (7) speaks of such permit
which may be granted after complying with the various
sections of the Act therein set out. Such permits when
granted may be styled as regular all India tourist permit in
contradistinction to what the appellants and the petitioners
seek as temporary all India tourist permit.
A brief resume of the relevant provisions of the Act
may shed light on the controversy raised before us.
Expression ’contract carriage’ is defined in Sec. 2 (3) to
mean a motor vehicle which carries a passenger or passengers
for hire or reward under a contract express or implied for
the use of the vehicle as a whole at or for a fixed or
agreed rate or sum etc. ’Stage carriage’ is defined in Sec.
2 (29) to mean a motor vehicle carrying or adapted to carry
more than six persons excluding the driver which carries
passengers for hire or reward at separate fares paid by or
for individual passengers, either for the whole journey or
for stages of the journey. Expression ’tourist vehicle’ is
defined in Sec. 2(29 A) to Mean a contract carriage
constructed or adapted and equipped and maintained in
accordance with such specifications as the State Government
may, by notification in the official Gazette, specify in
this behalf. The defini-
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746
tion of ’tourist vehicle’ was introduced by Amending Act 56
of 1969 by which Sec. 63 (7) was also introduced. Chapter IV
bears the heading ’Control of Transport Vehicles’. Sec. 42
prohibits owner of a transport vehicle to use the same in
the public place save in accordance with the conditions of a
permit granted under the relevant provisions of the Act. It
may be recalled that transport vehicle includes goods
vehicle as well as passenger vehicle. Thus no passenger
vehicles can be used in any public place without a permit.
Sec. 44 requires the State Government to constitute various
transport authorities in each State such as State Transport
Authority, to exercise and discharge the powers and
functions specified in sub-sec. (3) as also Regional
Transport Authority to exercise and discharge throughout
such areas referred to as regions, as may be specified in
the notification, powers and functions conferred on such
authority. It would appear that a State Transport Authority
is to be constituted for the whole State. The State is to be
divided into various regions and a Regional Transport
Authority has to be constituted for one or more of such
regions. The powers and functions of the State Transport
Authority are generally stated in sub-sec. (3) which
include; (a) the duty to co-ordinate and regulate the
activities and policies of the Regional Transport Authority,
if any, of the State, (b) to perform the duties of a
Regional Transport Authority where there is no such
authority and, if it thinks fit or if so required by a
Regional Transport Authority, to perform those duties in
respect of any route common to two or more regions, (c) to
settle the disputes and decide all matters on which
differences of opinion arise between Regional Transport
Authorities, and (d) to discharge such other functions as
may be prescribed. Sec. 45 makes general provisions as to
applications for permits. Sub-sec. (2) of Sec. 45 provides
that notwithstanding anything contained in sub-sec. (1), the
State Government may, by notification in the official
Gazette, direct that in the case of any vehicle or vehicles
proposed to be used in two or more regions Lying in
DIFFERENT States, the application under Sec. 45 (1) shall be
made to the State Transport Authority of the region in which
the applicant resides or has his principal place of
business. Sec. 46 specifies the contents of an application
for a stage carriage permit. Sec. 49 prescribes the
requirements of an application for a contract carriage
permit. One of the requirements is to specify the area for
which the permit is required. Primarily an application for a
contract carriage has to be made to Regional Transport
Authority as transpires from Secs. 50 and 51. It is
necessary to notice this fact because an all India tourist
permit is none-the-less a contract carriage permit with
747
this difference that its area of operation is the whole of
India. It would further transpire from a combined reading of
Secs. 49, 50 and 51 that an application for a contract
carriage permit with its operational jurisdiction intra-
State has to be made to the Regional Transport Authority and
if inter-State operation is contemplated, the application
has to be made to the State Transport Authority of the
region in which the applicant resides or has his principal
place of business as contemplated by Sec. 45 (2). This
becomes further manifest from the provisions of Sec. 63. (1)
which provides that except as otherwise provided, a permit
granted by the Regional Transport Authority of any one
region shall not be valid in any region, unless the permit
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has been counter-signed by the Regional Transport Authority
of that other region and a permit granted in any one State
shall not be valid in any other State unless counter-signed
by the State Transport Authority of that other State or by
the Regional Transport Authority concerned. Sub-sec. (6) of
Sec. 63 starts with a non-obstante clause and it provides
that notwithstanding anything contained in sub-sec. (1). but
subject to any rules that may be made under this Act, the
Regional Transport Authority of any one region may, for the
convenience of the public, grant a special permit in
relation to a public service vehicle for carrying a
passenger or passengers for hire or reward under a contract,
express of implied for the use of the vehicle as a whole
without stopping to pick up or set down along the line of
route passengers not included in the contract. 11 Then comes
sub-sec. (7) of Sec. 63 which enables the State Transport
Authority to grant regular all India tourist permit. It may
be extracted:
"Notwithstanding anything contained in sub-
section (1), but subject to any rules that may be
made under this Act, any State Transport Authority
may, for the purpose or promoting tourism, grant
permits valid for the whole or any part of India,
in respect of such number of tourist vehicles as
the Central Government may, in respect of that
State, specify in this behalf, and the provisions
of Sections 49, 50, 51, 57, 58, 59, 59-A, 60, 61
and 64 shall, as far as may be, apply in relation
to such permits."
There is a proviso to the section which is immaterial for
the present purpose.
Sub-sec. (7) of Sec. 63 which confers power on a State
transport Authority to grant regular all India tourist
permit makes
748
it obligatory that while granting such permits or in order
to grant such permit or with a view to obtain such permit
the applicant as well as the concerned authority shall have
to act in accordance with Secs. 49, 50, 51, 57, 58, 59, 59-
A, 60, 61 and 64 as far as may, apply in relation to such
permits.
A reference to Sec. 62 at this stage is necessary
because the State Transport Appellate Authority reversed the
decision of the Regional Transport Authority and directed
grant of temporary all India tourist permit under the
erroneous understanding that such temporary permits can be
granted under Sec. 62. Sec. 62 reads as under:
"62. Temporary permits-(1) A Regional
Transport Authority may without following the
procedure laid down in Section 57, grant permits,
to be effective for a limited period not in any
case to exceed four months, to authorise the use
of a transport vehicle temporarily-
(a) for the conveyance of passengers on special
occasions such as to and from fairs and
religious gatherings, or
(b) for the purposes of a seasonal business, or
(c) to meet a particular temporary need, or
(d) pending decision on an application for the
renewal of a permit, any may attach to any
such permit any condition it thinks fit:
Provided that a temporary permit under this
section shall, in no case, be granted in respect
of any route or area specified in an application
for the grant of a new permit under Section 46 or
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Section 54 during the pendency of the application:
Provided further that a temporary permit
under this section shall, in no case, be granted
more than once in respect of any route or area
specified in an application for the renewal of a
permit during the pendency of such application for
renewal.
749
(2) Notwithstanding anything contained in
subsection (1), a temporary permit may be granted
there-under in respect of any route or area where-
(i) no permit could be issued under Section
48 or Section 51 or Section 54 in
respect of that route or area by reason
of an order of a court or, other
competent authority restraining the
issue of the same, for a period not
exceeding the period for which the issue
of the permit has been so restrained; or
(ii) as a result of the suspension by a court
or other competent authority of the
permit of any vehicle in respect of that
route or area, there is no trans port
vehicle of the same class with a valid
permit, in respect of that route or
area, or there is no adequate number of
such vehicles in respect of that route
or area, for a period not exceeding the
period of such suspension.:
Provided that the number of transport
vehicles in respect of which the temporary permit
is so granted shall not exceed the number of
vehicles in respect of which the issue of a permit
has been restrained or as the case may be, the
permit has been suspended."
Translating these various provisions into functional
implementation, an applicant who desires to obtain a permit
for a tourist vehicle has to make an application under Sec.
63 (7). Such an application has to be processed as required
by Sec. 49 which would immediately imprint the application
as an application for a contract carriage permit with this
difference that it shall have an all India operation. If it
is an application simpliciter for a contract carriage
permit, Sec. 50 would necessitate the application being made
to Regional Transport Authority, but if the contract
carriage permit is to be valid for an inter-State operation,
obviously, the application will have to be made to State
Transport Authority Sec. 63 (7) also requires that an
application for all India tourist permit has to be made to
State Transport Authority. Therefore, even though an
application for contract carriage permit has ordinarily to
be made to Regional Transport Authority, if all India
operation is desired in respect
750
of a tourist vehicle, the same has to be made to the State
Transport Authority. This application has to be processed
according to the procedure prescribed in Sec. 50. A contract
carriage permit other than the one having an all India
operation must specify the area or the route or routes on
which the permit holder can ply the vehicle under the
authority of contract carriage permit as required by Sec.
Sl. Permit contemplated by Sec. 63 (7) can be granted
and shall be effective without renewal for such period, not
less than 3 years and not more than 5 years, as the
authority granting the permit may specify. (See Sec. 58). In
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view of the power conferred by Sec. 60, the transport
authority which granted the permit will have the power to
cancel or suspend the same, if one or more of the conditions
prescribed in Sec. 60 are satisfied.
Sec. 63 (7) for the first time conferred power on the
State Transport Authority in a State to grant a permit which
will enable the permit holder to use the tourist vehicle for
all India operation without complying with sub-sec. (1) of
Sec. 63 which required countersignature of tho State
Transport Authority or the Regional Transport Authority as
the case may be of State or region other than the one by
which the permit is granted, to undertake an operation in
the area within the jurisdiction of the counter-signing
State Transport Authority or Regional Transport Authority as
the case may be. Therefore, unquestionably even though the
permit contemplated by Sec. 63 (7) has a larger operational
area, it is none the less a contract carriage permit, and
Sec. 63 (7) mandated that the authority granting such permit
will have to comply with all the sections except Sec. 62
which have to be complied with for obtaining a contract
carriage permit contemplated by Sec. 49. Why was Sec. 62
omitted from Sec. 63 (7) is the root question ?
The High Court in this connection observed that "since
subsection (6) of Sec. 63 has provided for grant of special
permits for all India operation of contract carriages, it is
reasonable to infer that the omission to mention Sec. 62 in
the latter part of sub-sec. (7) of Sec. 63 was deliberate
and that the legislature did not intend grant of temporary
permits for tourist vehicles for all India operation." This
view is assailed on behalf of the appellants and the writ
petitioners.
It was contended that as an elaborate procedure is
prescribed for grant of stage carriage permit or contract
carriage permit and that it being a prolix and time-
consuming process, Sec. 62 keeping in
751
view the urgent or emergent need to provide transport
facilities to travelling public, conferred power on Regional
Transport Authority to grant temporary permit to meet a
particular temporary need or for purposes of seasonal
business or pending decision of an application for the
renewal of a permit. It was urged that if either a stage
carriage or contract carriage permit can be granted by a
Regional Transport Authority to meet a particular temporary
need or pending decision of an application for the renewal
of a permit, the Regional Transport Authority can as well
grant temporary all India tourist permit for the self same
reasons.
There are two fallacies in the submissions on behalf of
the appellants and the writ petitioners. Sec. 62 confers
power on the Regional Transport Authority to grant temporary
permit. A Regional Transport Authority is set up for a
region. The jurisdiction of the Regional Transport Authority
extends over a region which is usually a small part of the
State because for the purposes of the Act State has to be
divided into regions. Power to grant temporary permit is
conferred on Regional Transport Authority, amongst others,
meet a particular temporary need. Regional Transport
Authority having jurisdiction over a comparatively small
area may be able to gauge, notice or appreciate a particular
temporary need for which a temporary permit can be granted
for a period not exceeding 4 months without following the
procedure prescribed. in Sec. 57. The same power can be
enjoyed pending the renewal of an already granted permit. By
its very nature. Sec. 62 caters to a situation where permits
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to operate vehicles may be granted for a short period to
meet some temporary or emergency requirement or where time
is likely to be spent in processing an application for
renewal of a permit and in the interregnum the travelling
public may not be put to inconvenience on account of non-
availability of vehicles with permits. (See. The Madhya
Pradesh State Road Transport Corporation v. The Regional
Transport Authority, Raipur).(1) An authority having
jurisdiction over a comparatively small area is favourably
placed to notice a situation as contemplated by Sec. 62.
Therefore, the power is conferred on Regional Transport
Authority and not the State Transport Authority to grant
temporary permit in the circumstances set out in Sec. 62,
because State Transport Authority has jurisdiction over the
whole State, and the State Transport Authority exercising
the power under Sec. 63 (7) will have to have an all India
perspective.
752
Therefore, the statute did not confer such power on State.
Transport Authority because by its very nature the Regional
Transport Authority having jurisdiction over a comparatively
smaller area would be better equipped to appreciate and deal
with the needs of the travelling public of a temporary
character or pending the renewal of a permit. There is
intrinsic evidence in the language of Sec. 62 that it was
meant to be used by Regional Transport Authority for dealing
with a situation within its small area. If Regional
Transport Authority is not competent to grant regular all
India tourist permit, no canon of construction would permit
the Court to clothe him with power to grant temporary all
India tourist permit. Even if the dictum that the power to
grant final relief inheres the power to grant interim relief
can be extended to executive authority, yet when the
Regional Transport Authority has no power to grant regular
all India tourist permit, it would be impossible to hold
that such authority has none the less the power to grant
temporary all India tourist permit. Therefore, the very
language of Sec. 62 on which the High Court substantially
relied in support of its conclusion would be sufficient to
negative the contention canvased on behalf of the appellants
and the petitioners.
It was, however, urged that Sec. 44 (3) contemplates a
situation where a State Transport Authority has to perform
the duties of Regional Transport Authority and, therefore,
the expression ’Regional Transport Authority’ in Sec. 62
would either comprehend State Transport Authority or would
not atleast exclude the power conferred on the lower
authority to be enjoyed by the higher authority. Sec. 44 (3)
would not render any help in this behalf because it merely
provides that a State Transport Authority can perform the
duties of a Regional Transport Authority where there is no
such Authority or where, if it thinks fit or if so required
by a Regional Transport Authority, to perform those duties
in respect - of any route common to two or more regions.
None of these conditions under which a State Transport
Authority can perform the functions and discharge the duties
of a Regional Transport Authority are satisfied, and there
fore, it is difficult to accept the submission that the
expression ’Regional Transport Authority’ used in Sec. 62
will comprehend State Trans port Authority. It is equally
not possible to accept the submission that when a power is
conferred on a lower authority that power can always be
enjoyed by the authority higher in the hierarchy in relation
to the lower authority. There is no express provision in the
statute which provides that the Stats Transport Authority
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can always and
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without any fetter enjoy the power of the Regional Transport
Authority and in the absence of such provision it is
difficult to read merely on the basis of vertical hierarchy
wherever the lower authority is mentioned in the statute,
the higher authority be included therein. Viewed from this
angle, we do not propose to undertake the exercise of
ascertaining whether State Transport Authority can be said
to be the higher authority in relation to Regional Transport
Authority.
It was urged that temporary permit can be granted
pending decision of an application for a renewal of a
permit; and that as in the State of Karnataka out of a quota
of 50 permits granted by the Central Government under Sec.
63 (7), only 36 have been issued, the State Transport
Authority can grant temporary permit for the vacancies till
regular all India tourist permits are granted. Support was
sought to be drawn for the submission from cl. (d) of sub-
sec. (1) of Sec. 62 which provides that temporary permit can
be granted pending decision on an application for the
renewal of a permit. The section does not provide for grant
of temporary permits pending grant of a regular permit. On
the contrary the first proviso to Sec. 62 (1) makes what is
implicit in the cl. (d) explicit by providing that a
temporary permit under Sec. 62 shall, in no case, be granted
in respect of any route or area specified in an application
for the grant of a new permit under Section 46 or Sec. 54
during the pendency of the application. It may be recalled
that Sec. 46 provides for an application for a stage
carriage permit and Sec. 54 provides for an application for
public carriers permit. Therefore, in no case a temporary
permit can be granted under the section pending grant of or
renewal or a contract carriage permit. Sub-sec (2) of Sec.
62, however, carves out an exception where a temporary
contract carriage permit can be granted in respect of any
route or area where no permit could be issued by reason of
an order of the court or, other competent authority
restraining the issue of the same. That is not the case
here. Therefore, there is no power to grant a temporary
contract carriage permit and ipso facto the temporary all
India tourist permit under Sec. 62 and the contention stands
negatived by the very language of Sec. 62 Accordingly there
is no merit in the submission.
A few days after the arguments were concluded and the
matter stood over for Judgment, Mr. K. N. Bhatt, learned
counsel for some of the petitioners submitted a written
brief in which it was stated that the Motor Vehicles Act,
1939 in its application to the State of
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Karnataka was amended by the Motor Vehicles (Mysore
Amendment Act, 1973 (Karnataka Act No. 25 of 1975) which,
after receiving the assent of the President came into force
on January 12, 1974, has introduced the following sentence
at the end of sub-sec. (2) of Sec. 45. The sentence reads as
under:
"When such a notification is issued,
reference to the Regional Transport Authority in
Sections 47, 48, 50, 51, 53, 54, 55, 56, 57, 58,
62, 63 and 68 shall, in respect of the application
for permit for using a vehicle in two or more
regions Lying in different States, be construed as
reference also to the State Transport Authority."
By the same Amending Act sub-sec. (2A) has been added in
Sec. 45 which reads as under:
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"Notwithstanding anything contained in sub-
section (1), the State Government may, by
notification in the official Gazette, direct that
in the case of any vehicle or vehicles proposed to
be used in two or more regions lying in the State,
the application under that sub-section shall be
made to the State Transport Authority. When such a
notication is issued, reference to the Regional
Transport Authority in sections 47, 48, 50, 51,
53, 54, 55, 56, 57, 58. 62, 63 and 68F shall in
respect of applications for permit for using a
vehicle in two or more regions lying in the State,
be construed as reference also to the State Trans
port Authority."
Relying on these amendments it was urged that as far as the
State of Karnataka is concerned on the issue of a
notification under sub-sec (2A) of Sec 45 the expression
’Regional Transport Authority’ in Sec. 62 will also
comprehend State Transport Authority and therefore, the
submission of the appellants and the petitioners cannot be
negatived on the ground that only Regional Transport
Authority is empowered to issue temporary permits. Though no
notification as required under sub-sec. (2A) of Sec. 45 was
brought to our notice we are prepared to proceed on the
assumption that such a notification has been issued. But
even if in the application of the Motor Vehicles Act to the
State of Karnataka, Sec. 62 would also enable State
Transport Authority to issue temporary permit, it can only
be done in the circumstances and eventualities mentioned in
that.
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section. It will be presently pointed out that power to
grant temporary permit under Sec. 62 in the circumstances
and eventualities therein mentioned would not comprehend the
power to grant temporary all India tourist permit because
none of the conditions under which the same can be granted
would be attracted and State Transport Authority of a State
will have no material for satisfaction of one or the other
condition set out in Sec. 62 which would enable it to grant
such a permit. Therefore, this amendment would hardly make
any difference in the outcome of the matter.
It was urged that the High Court was in error in
attaching importance to the omission of Sec. 62 from array
of sections subject to which an application for an all India
tourist- permit has to be processed which according to the
High Court clearly manifests the legislative intention that
there was no question of granting under any circumstances
temporary all India tourist permit. It was contended that
omission of Sec. 62 is quite logical because if it was
placed amongst the array of sections subject to which
applications for all India tourist permit have to be
processed, it would have become incongruous. Proceeding
along this line it was submitted that Sec. 63 (7) provides
that ’such permit’ as contemplated by Sec. 63 (7) will be
granted in accordance with the various provisions set out
therein, the expression ’such permit’ can only mean regular
or all India tourist permit and the temporary all India
tourist permit was not to be catered to by Sec. 63 (7) but
by Sec. 62 and therefore it was rightly omitted from the
array of sections set out in sec. 63 (7). If one were to
conclude from the mere omission of Sec. 62 from amongst the
array of sections subject to which an application for permit
under sec. 63 (7) will have to be processed that no
temporary all India tourist permit can be granted, there
would have been some force in the submission on behalf of
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the appellants and the writ petitioners. But we would
presently point that the whole concept of granting temporary
all India tourist permit is foreign to the concept of all
India tourist permit and that this conclusion gets
reinforced by the omission of Sec. 62 from the array of
various sections subject to to which a permit under Sec. 63
(7) can be granted.
Sub-section (7) was introduced in Sec. 63 in 1970. The
object underlying the introduction of sub-sec. (7) becomes
manifest from the language used therein. Till the
introduction of sub-sec. (7), the situation was that the
Regional Transport Authority can grant contract carriage
permit valid for the area under its jurisdiction or when
counter-signed by the State Transport Authority of the other
State
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then the vehicle can be operated in that other State. Now
with a view to promoting tourism, it was decided to clothe
State Transport Authority with power to issue a permit which
without the necessity of obtaining counter-signature of
other Transport Authority of other State valid for operating
the vehicle throughout the length and breadth of the
country. With a view to providing uninterrupted flow of
tourist traffic, thereby expanding tourist facilities which
would promote tourism in the country, a contract carriage
permit with all India operation was conceived and power was
conferred on the State Transport Authority subject to the
quota prescribed by the Central Government for each State to
grant such permit. Every State had the prescribed quota and
we were informed that at present each State has a quota of
50 permits. Within the quota, State Transport Authority in
each State can grant a contract carriage permit in respect
of a tourist vehicle for all India operation. A contract
carriage permit can as well be granted under Sec. 51 in
respect of a vehicle which carries a passenger or passengers
for hire or reward under a contract express or implied for
the use of the vehicle as a whole at or for a fixed or
agreed rate or sum etc. Any ordinary vehicle meeting the
requirements of law can be operated under a contract
carriage permit granted under Sec. 51. But when it comes to
granting of a contract carriage permit available for all
India operation, it has to be in respect of a tourist
vehicle. Tourist vehicle has been defined to mean a contract
carriage constructed or adapted and equipped and maintained
in accordance with such specifications as the State
Government, may, by notification in the official Gazette,
specify in this behalf. We were told that some special
arrangements for comfortable journey over long distances has
to be provided in a tourist vehicle. What is the distinction
? An all India tourist permit is none-the-less a contract
carriage permit but while contract carriage permit can be
granted for any vehicle not required to be specially adapted
for the purpose, a contract carriage permit for all India
operation as envisaged by Sec. 63 (7) can only be granted in
respect of tourist vehicle, and it appears that it requires
a substantial financial investment for adapting a vehicle as
a tourist vehicle. This intrinsic evidence shows that such
huge or heavy outlay cannot be imposed on an applicant by
giving him temporary all India tourist permit which cannot
be granted for a period extending 4 months.
If Sec. 62 were to be a proviso to Sec. 63 (7) and
therefore, one can conceive of granting a temporary all
India tourist permit for meeting a particular temporary
need, it is difficult to envisage a particular temporary
need of an all India variant which can be
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noticed by State Transport Authority of one State and such
authority can proceed side-tracking all relevant provisions
to grant temporary all India tourist permit. Can there
conceivably be a particular temporary need felt throughout
India at the same time ? If the answer is in the
affirmative, all the States can grant temporary permits.
There will be more vehicles and less travellers. Further a
State Transport Authority of one State may believe that
there exists a particular temporary need but the view of the
other State Transport Authority can be exactly to the
contrary, and State Transport Authority. Of one State can
open the flood-gates of temporary permits permitting tourist
vehicles to invade other States. It may be that a particular
temporary need may arise in one State but that can be
catered to by the Regional Transport Authority of the region
or the State Transport Authority of the State giving
direction to Regional Transport Authority to grant contract
carriage permit under Sec. 51. It is not necessary to have
recourse to Sec. 63 (7) in such a situation, and if one
State cannot cater to the particular all India need, other
States having their own quota can fill in the bill.
Having thus examined the whole concept of all India
tourist permit, the question of granting of a tourist permit
to cater to a particular temporary need appears to be
foreign to the very concept of all India tourist permit. For
this additional reason, we are of the opinion that the High
Court was perfectly justified in reaching the E conclusion
that there is no power to grant temporary all India tourist
permit and the High Court rightly set aside the decision of
the State Transport Appellate Authority. No case is
therefore, made out for interfering with the same.
Accordingly all these appeals, special leave petitions and
writ petitions fail and each of which is dismissed with
costs where appearance has been entered into on the other
side.
All interim orders are vacated.
H.L.C. Appeals and petitions dismissed.
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