Full Judgment Text
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PETITIONER:
PANDIYAN ROADWAYS CORPORATION LTD.
Vs.
RESPONDENT:
THIRU M.A. EGAPPAN
DATE OF JUDGMENT24/02/1987
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
SINGH, K.N. (J)
CITATION:
1987 AIR 958 1987 SCR (2) 391
1987 SCC (2) 47 JT 1987 (1) 545
1987 SCALE (1)416
ACT:
Motor Vehicles Act, 1939--Section 68--F(1-D)--Prin-
ciple underlying provision is that number of services on
such route to be frozen on publication of scheme under
Section 68C--No justification to limit provision to applica-
tions for fresh permit or their renewal and to leave out
applications for variation of a permit.
HEADNOTE:
The appellant is one of the State Transport Undertak-
ings. On June 30, 1976 an approved scheme was published
under s.68-D of the Motor Vehicles Act, 1939 in respect of
the route Madurai to Kumuli authorising the appellant to run
its stage carriages and proposing to exclude completely all
other persons from operating their stage carriage services
under permits covering the entire route except those persons
mentioned in Annexure 11 to the scheme, who were existing
operators on the different sectors of the notified route on
the date of the publication of the scheme.
The respondent’s name was not mentioned in Annexure I1
as he was operating on a non-scheme route. On February 28,
1981 the respondent secured the variation of his permit from
the Regional Transport Authority enabling him to operate on
a sector of the notified routes. The appeal against the said
order was dismissed and no revision petition was filed
against that order.
On December 23, 1982 the respondent obtained from the
Regional Transport Authority a second variation of his
permit which authorised him to operate his stage carriage
service on the route which was also a part of the notified
route. An appeal filed against that order was dismissed by
the State Transport Appellate Tribunal.
The High Court dismissed the revision petition taking
the view that s.68-F(I-D) of the Act could not be considered
as a bar for entertaining an application for the variation
of a permit since such an application was neither an appli-
cation for a permit nor for its renewal.
In the appeal to this Court on behalf of the appellant it
was
392
contended that a draft scheme published under s.68-C of the
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Act on June 4, 1976, which was still in force was a bar to
the grant of variation of the permit authorising the re-
spondent to operate his stage carriage on a sector of the
route in respect of which the scheme had been published.
On behalf of the respondent it was contended that on a
true construction of the scheme only persons who were oper-
ating their stage carriages under permits issued in respect
of the entire route from Madurai to Kumuli alone have been
excluded under the approved scheme and not those who were
operating between any two $aces on the notified route or
between any place lying outside the notified route and a
place on the notified route even though they might be oper-
ating on a portion of the notified route.
Allowing the appeal,
HELD: 1. In the context in which s.68-F(I-D) of the
Motor Vehicles Act, 1939 appears it is difficult to hold
that the application for variation of a permit by including
the whole or any part of route in respect of which a scheme
is published under s.68-C of the Act can be treated as
failing outside the mischief of s.68-F(I-D) of the Act.
There is no justification to limit the application of s.68-
F(I-D) to only applications for fresh permits or their
renewal and to leave out their application for variation of
a permit by the exclusion of the route or a portion of the
route in respect of which a scheme is published. The fact
that the applicant is the holder of a permit to operate a
stage carriage on another route whose variation he is seek-
ing by the inclusion of a route or a part whereof in respect
of which a scheme is published under s.68-C ought not to
make any difference. The principle underlying s.68-F(I-D) is
that the number of services on such a route should be frozen
on the publication of a scheme under s.68-C. [395E-H]
2. The approved scheme excludes the operation by others
of stage carriage service on the said route except those
whose names are mentioned in Annexure II attached thereto.
The respondent is not protected by any provision under the
approved scheme itself. He cannot be permitted to operate on
any sector of the notified route in question in view of the
provisions contained in s.68-C, 68-D and 68-FF. [396B-C]
Karnataka State Road Transport Corporation, Bangalore
v.B.A. Jayaram and Others, [1984] 2 S.C.R. 768 & Adarsh
Travels Bus Service and Another v. State of U.P. and Others,
[1985] 4 S.C.C. 557, referred
to.
393
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1758 of
1986.
From the Judgment and Order dated 22.11. 1985 of the
Madras High Court in C.R.P. No. 3117 of 1984.
Dr. Y.S. Chitale, A.V. Rangam, T.V. Ratnam and M. Palani
for the Appellant.
K.K. Venugopal, A.T.M. Sampath and S. Srinivasan for the
Respondent.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. The appellant is one of the State
Transport Undertakings established in the State of Tamil
Nadu. It has questioned in this appeal by special leave the
decision of the High Court of Madras in CRP No. 3117 of 1984
affirming an order granting variation of a permit issued
under the provisions of the Motor Vehicles Act, 1939 (here-
inafter referred to as ’the Act’) by virtue of which the
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respondent is permitted to run a stage carriage on the route
between Checkanurani and Madurai which is a part of a noti-
fied route Madurai to Kumuli via Checkanurani, Valandur,
Usilampatti, and Theni. Before the High Court the State
Transport Appellate Tribunal and the Regional Transport
Authority the appellant had pleaded the publication of a
draft scheme under section 68-C of the Act on June 4, 1976
in respect of the route Madurai to Kumuli as a bar to the
grant of a variation of the permit prayed for by the re-
spondent. In this Court the appellant has relied upon the
existence of an approved scheme published on June 30, 1976
in respect of the very same route Madurai to Kumuli also as
a bar to the order of variation of permit granted in favour
of the respondent. The route is common to both the draft
scheme dated June 4, 1976 and the approved scheme dated June
30, 1976. We shall, however, consider the effect of the
approved scheme on the order granting variation of the
permit first.
The facts of the case are these. On June 30, 1976, as
stated earlier, the approved scheme was published under
section 68-D of the Act in the Tamil Nadu Government Gazette
in respect of the route Madurai to Kumuli authorising the
appellant to run its stage carriages on that route. By that
approved scheme it was proposed to exclude completely all
other persons from operating their stage carriage services
under permits covering the entire route, referred to above
394
except those persons mentioned in Annexure II to the said
scheme without prejudice to any future modifications, varia-
tions etc. of their permits. The operators whose names had
been mentioned in Annexure II to the scheme were persons who
were existing operators on the different sectors of the
notified route on the date of the publication of the scheme.
The respondent was not one of the those persons who was
running a stage carriage service on any part or sector of
the route in question on the date of its publication. Hence,
his name was not mentioned in Annexure II to the scheme. He
was then operating a stage carriage service under a permit
issued under the Act on the route Batlagundu to Usilampatti
which was non-scheme route. On February 28, 1981 he was able
to secure the variation of the said permit from the Regional
Transport Authority which enabled him tO operate on the
route measuring 21.4 Kms. from Usilampatti to Checkanurani,
which formed a sector of the notified route. The appeal
filed against the said order was dismissed and no revision
petition was filed against the order dismissing the said
appeal. On 23.12.1982 he obtained from the Regional Trans-
port Authority a second variation of his permit under which
he was authorised to operate his stage carriage service over
a distance of 16.6. Kms. from Checkanurani to Madurai which
was also a part of the notified route. An appeal filed
against that or& was dismissed by the State Transport Appel-
late Tribunal. A revision petition was filed under section
64-B of the Act (as in force in the State of Tamil Nadu)
before the High Court. The High Court dismissed the revision
petition. This appeal by special leave is filed against the
above order of the High Court.
As mentioned earlier the appellant pleaded before the
High Court that a draft scheme published on June 4, 1976
which was still in force was a bar to the grant of variation
of the permit authorising the respondent to operate his
stage carriage on a sector of the route in respect of which
the scheme had been published. The High Court was of the
view that section 68-F(I-D) could not be considered as a bar
for entertaining an application for the variation of a
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permit since such an application was neither an application
for a permit nor for its renewal. In arriving at the said
decision it relied upon section 68-F(1-D) of the Act which
read as follows:-
"68-F(1-D). save as otherwise provided in
sub-section (lA) or sub-section (1-C), no
permit shall be granted or renewed during the
period intervening between the date of publi-
cation, under section 68-C of any scheme and
the date of publication of the approved or
modified scheme, in
395
favour of any person for any class of road
transport service in relation to an area or
route or portion thereof covered by such
scheme ......... "
It further relied upon a decision of this Court in
Karnataka State Road Transport Corporation, Bangalore v.
B.A. Jayaram and Others, [1984] 2 S.C.R. 768. In that case
this Court observed at page 789 thus:
"Assuming, therefore, that an application for
variation of the conditions of a permit re-
ferred to in sub-section (8) of section 57 is
to be deemed by a fiction of law to be an
application for the grant of a new permit the
question to which we must address ourselves is
for what purpose is such an application for
variation deemed to be an application for
grant of a new permit. Reading sub-sections
(3) to (8) of section 57 as a whole, it is
clear that the only purpose is to apply to
such an application for variation the proce-
dure prescribed by sub-sections (3) to (7) of
section 57 and not for the purpose of provid-
ing that when the application for variation is
granted, the permit so varied would be deemed
to be a new permit. If a permit so varied were
to be deemed to be a new permit, the result
would be anomalous."
From the above observation the High Court deduced that an
application for the variation of a permit held by the re-
spondent was not in fact an application for a permit and did
not fall within the mischief of section 68-F(1-D) of the
Act. In the context in which section 68-F(1-D) appears we
find it difficult to agree that the application for varia-
tion of a permit by including the whole or any part of route
in respect of which a scheme is published under section 68-C
of the Act can be treated as falling outside the mischief of
section 68-F(1-D) of the Act. There is no justification to
limit the application of section 68-F(1-D) of the Act to
only applications for fresh permits or their renewal and to
leave out applications for variation of a permit by the
inclusion of the route or a portion of the route in respect
of which a scheme is published. The fact that the applicant
is the holder of a permit to operate a stage carriage on
another route whose variation he is seeking by the inclusion
of a route or a part thereof in respect of which a scheme is
published under section 68-C of the Act ought not to make
any difference. The principle underlying section 68-F(1-D)
of the Act is that the number of services on such a route
should be frozen on the publication of a scheme under sec-
tion 68-C of the Act. It is not, however, necessary for us
to pursue the applicability of section 68-F(1-D)
396
of the Act to the present case any further since it is
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brought to our notice that the very same route is the sub-
ject-matter of the approved scheme published under section
68-D of the Act on June 30, 1976 to which we have already
adverted. The approved scheme, as mentioned earlier, ex-
cludes the operation by others of stage carriage services on
the above mentioned route Madurai to Kumuli except those
whose names are mentioned in Annexure II attached thereto.
The respondent is not protected by any provision in the
approved scheme itself. He cannot be permitted to operate on
any sector of the notified route in question in view of the
provisions contained in sections 68-C, 68-D and 68-FF of the
Act. The effect of these provisions has been summarised by a
Constitution Bench of this Court in Adarsh Travels Bus
Service and Another v. State of U.P. and Others, [1985] 4
S.C.C. 557. Chinnappa Reddy, J. speaking for the Constitu-
tion Bench observed at page 566 thus:
"7. A carefully and diligent perusal of Sec-
tion 68-C, Section 68-D(3) and Section 68-FF
in the light of the definition of the expres-
sion ’route’ in Section 2(28-A) appears to
make it manifestly clear that once a scheme is
published under Section 68-D in relation to
any area or route or portion thereof, whether
to the exclusion, complete or partial of other
persons or otherwise, no person other than the
State Transport Undertaking may operate on the
notified area or notified route except as
provided in the scheme itself. A necessary
consequence of these provisions is that no
private operator can operate his vehicle on
any part or portion of a notified area or
notified route unless authorised so to do by
the terms of the scheme itself. He may not
operate on any part or portion of the notified
route or area on the mere ground that the
permit as originally granted to him covered
the notified route or area."
In view of the above observation we have to hold that in
the instant case the respondent is not entitled to operate
his stage carriage on the notified route or a portion there-
of even though he may have been granted variation of his
permit to operate on a sector of the notified route.
We do not agree with the contention urged on behalf of
the respondent that on a true construction of the scheme
only persons who are operating their stage carriages under
permits issued in respect of the entire route from Madurai
to Kumuli alone have been excluded
397
under the approved scheme and not those Who are operating
between any two places on the notified route or between any
place lying outside the notified route and a place on the
notified route even though they may be operating on a por-
tion of the notified route. We are firmly of the view that
on the entire notified route between Madurai and Kumuli or
any part thereof apart from the State Transport Undertaking
no person other than those mentioned in Annexure II to the
approved scheme can operate a state carriage service. We,
therefore, direct the respondent not to operate his stage
carriage on the sector in respect of which he has obtained
the variation of his permit.
We are informed that the draft scheme published on June
4, 1976 is being considered by the authority concerned under
section 68-D of the Act. It is open to the respondent to
make any representation which he is advised to make before
the said authority regarding the inconvenience caused to him
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by reason of the approved scheme referred to above.
The above appeal is, therefore, allowed accordingly.
There is no order as to costs.
A.P.J. Appeal
allowed.
398