Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
CASE NO.:
Appeal (civil) 2676 of 2002
PETITIONER:
ABDUL HAI KHAN
Vs.
RESPONDENT:
SUBAL CHANDRA GHOSE & ORS.
DATE OF JUDGMENT: 12/04/2002
BENCH:
D.P. Mohapatra & Brijesh Kumar
JUDGMENT:
With
Civil Appeal No.2677/2002 @ SLP No.6612/2000
Civil Appeal No.2678/2002 @ SLP No.8908/1999
Civil Appeal No.2679/2002 @ SLP No.6693/2000
Civil Appeal No.2680/2002 @ SLP No.11231/2000
Civil Appeal No.2681/2002 @ SLP No.12365/2000
Civil Appeal No.2682/2002 @ SLP No.19665/2000
Civil Appeal No.2683/2002 @ SLP No.5242/2002
Civil Appeal No.2684/2002 @ SLP No.5243/2002
Civil Appeal No.2685/2002 @ SLP No.5245/2002
Civil Appeal No.2686/2002 @ SLP No.5246/2002
J U D G M E N T
D.P. MOHAPATRA,J.
Leave is granted in all the special leave petitions.
These appeals filed by certain private stage carriage
operators in Calcutta region of the State of West Bengal are
directed against the judgment of the Division Bench of the
High Court of Calcutta disposing of a batch of appeals filed
by some private operators challenging the judgment
passed by single Judges declining to grant any relief to the
petitioners. Since all these appeals have been heard
together, the facts in S.L.P.(Civil) No.8634/99 are being
referred for the sake of convenience.
The Division Bench of the High Court disposed of the
appeals by passing the order operative portion of which
reads as follows:
"For the reasons aforementioned these
appeals and the Writ applications are
disposed of with the direction upon the
Regional Transport Authority to
consider grant of permit as if the 1980
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
Scheme is no longer in force and for
that purpose applications filed by the
concerned operators may be
considered strictly in accordance with
law. In the facts and circumstances of
this case there will be no order as to
costs."
From the discussions in the impugned judgment it is
clear that the Division Bench took the view that the
scheme formulated under the Notification issued on
10.4.1980 was ultra vires the provisions of Chapter IVA of
the Motor Vehicles Act, 1939 since it was contrary to the
intent and purport of provisions in the said chapter. The
Division Bench observed :
"Ex-facie, therefore the said 1980
Notification is ultra vires Section 68C
of 1939 Act. Any notification issued
contrary to the Statute shall be invalid
and inoperative."
It was further held in the judgment that since the
1980 scheme was not in operation for a long time and the
Court had been passing orders directing the authorities
concerned to consider applications for grant of stage
carriage permit and pursuant to such orders a large
number of stage carriage permits had been granted to
private operators; in such a situation the doctrine of
’Desuetude’ should be applied in the case. The Division
Bench observed that the main scheme notified in 1963
which was subsequently amended had not been placed
before the Court. The Division Bench took note of the
statements made by the counsel appearing on behalf of
the State and made the following observations :
"It may further be placed on record
that both Mr. Dey and Mr.Khan
appearing on behalf of the State
specifically stated before us that
although in the affidavit-in-opposition
the State had taken a stand that 1980
Notification still exists, the fact
remains that the same had not been
adhered to and State Carriage permits
had been granted in favour of a large
number of operators."
Referring to certain decisions of the Supreme Court
and of different High Courts the Division Bench rendered
the judgment operative portion of which has been quoted
earlier.
Analysing the facts of the case appearing from the
records and arguments placed by learned counsel
appearing for the parties the following factual position
emerges:
Initially the passenger transport services in Calcutta
region were operated by holders of stage carriage permits
issued by the Regional Transport Authority, Calcutta. By
the Notification issued on 19.8.1963 the State of West
Bengal published a scheme nationalizing certain routes
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
in the Calcutta and Howrah regions under Section 68-D of
the Motor Vehicles Act, 1939 (for short the ’Old Act’). In
the said Scheme provision was made to permit the
existing private operators to continue their services on the
routes specified in the permits. The previous notification
dated 2.5.62 published in the Calcutta Extra-ordinary
Gazette was modified in terms of the Scheme notified in
1963. Subsequently, the 1963 Scheme was modified in
1964, 1970 and in 1980, permitting private operators to
operate certain routes within the region. The writ
petitioners who are the appellants herein, were issued
stage carriage permits on the routes included in the
notification. They have been operating on the nationalized
routes. Their grievance appears to be that the Regional
Transport Authority, Calcutta has granted permits to
private operators on routes overlapping the nationalized
routes on which they are operating under the modified
scheme ignoring the notification issued in 1963 as
modified in 1980. It is the contention of the appellants
that the nationalization scheme has been given a complete
go-bye by indiscriminate grant of permits to private stage
carriage operators on routes overlapping the nationalized
routes. In essence the contention of the appellants is that
they have a right to operate on the nationalized routes on
which they have been granted permits to the exclusion of
any other private operator on the entire route or on a
portion of it.
The following reliefs were sought in the petition :
a) A writ of and/or in the nature of
Mandamus commanding the
respondents, each one of them,
their agents, subordinates and/or
assigns to forbear from granting
any stage carriage permit (bus) on
route No.210 which is overlapping
the notified route no.76/76A and
also without complying with the
provisions of Chapter VI of the
Motor Vehicles Act 1988 in any
manner whatsoever.
b) A Writ of and/or in the nature of
Certiorari to issue directing the
respondents, their agents,
subordinates and/or assigns to
transmit the entire record of the
case forming the basis of the
purported grant of stage carriage
(bus) permits in respect of route
No.210 which is overlapping the
notified route No.76/ 76A before
this Hon’ble Court and to certify
them and on being so certified
quash the same.
c) A writ of and/or in the nature
prohibition prohibiting the
respondents, their agents,
servants subordinates and/or
assigns from granting any stage
carriage permits on route no.210
which is overlapping the notified
route no.76/76A and also
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
without complying with the
provisions of the Motor Vehicles
Act 1988 in any manner
whatsoever.
d) Rule NISI in terms of prayers (a)
to (c) as above.
e) An order of Injunction to issue
restraining the respondents, each
one of them, their agents,
subordinates, servants and/or
assigns from granting any stage
carriage permits to private
operators in respect of route
no.210 which is over-lapping the
notified route no.76/76A without
following the provisions of
Chapter VI of the Motor Vehicles
Act 1988 in any manner
whatsoever.
f) Ad-interim order in terms of
prayer (e) as above.
g) And to pass such further other
order or orders and/or direction
or directions as to Your Lordship
may seem fit and proper"
(Emphasis supplied)
We have heard Sri Rakesh Dwivedi, learned senior
counsel appearing for the appellants and Shri Altaf
Ahmad, learned Additional Solicitor General for the
respondents. The main thrust of the arguments of Shri
Dwivedi is that the Notification issued under Chapter IV A
of the old Act which has not been cancelled after the said
Act was repealed by the Motor Vehicle Act, 1988 (for short
the "new Act") is binding on all parties, the private
operators, the State Undertakings and the Transport
Authorities under the Act. The authorities are not entitled
to ignore the modified scheme or render it otiose by
indiscriminately granting permits to private operators on
routes overlapping the nationalized routes. The further
submissions of Shri Dwivedi was that the High Court erred
in holding that the modified scheme notified in 1980 is
against the intent and purport of nationalization of
transport services and it is contrary to Section 68-D. The
learned counsel contended that the High Court erred in
applying the doctrine of desuetude to the case.
Per contra Shri Altaf Ahmad while accepting the
position of law that the notified scheme is the law which is
binding on the parties contended that the 1963 scheme
which has undergone modifications from time to time
(1964, 1970 and 1980) clearly shows that it is not a total
exclusion scheme but only a partial exclusion scheme. In
such a case submitted Shri Ahmad there is no legal bar for
the RTA to issue permits to private operators on routes
other than the nationalized routes even if such routes
overlap portions of any nationalized route. Shri Altaf
Ahmad further contended that the scheme for granting
permits to operators under the Motor Vehicles Act has
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
undergone a sea change. In the new Act Section 47 of the
old Act which required the RTA to fix a limit of number of
permits to be granted before considering any application
for permit has been done away with in the new Act. In the
said Act no restriction is placed on the Transport Authority
for granting stage carriage permit if it is satisfied that
issue of such permit is required in public interest. Shri
Altaf Ahmad fairly accepted the position that on the facts
and circumstances of the case, the Notification issued in
1980 cannot be held as ultra vires Chapter IV-A of the
Motor Vehicles Act, 1939. He strenuously contended that
after the new Act has come into force the appellants are
only entitled to contend that no other private operator can
be granted permit on the notified routes or other routes
overlapping the notified routes.
From the contentions raised by the learned counsel
for the parties it is clear to us that there is no dispute
about the position of law that the notified scheme whether
totally excluding private operators or partially excluding
them is binding on all concerned so long as it remains in
force. At the same time it is also clear that the scheme as
framed in 1963 does not totally exclude private operators.
Indeed it permits operation of stage carriage service by
private operators. Therefore, the scheme is only a partial
exclusion scheme. In such a case it is not open to a
private operator who is himself operating on a nationalized
route on account of modification of the scheme is entitled
to seek a writ of mandamus to the authority not to grant
permit to any other private operator on that route or a
route overlapping a portion of the route. To put it
differently he is not entitled to enjoy a monopoly of
operation of the route. It is up to the Authority to consider
whether the application filed by a private operator for
permit on that route or another route overlapping that
route should be issued or not. In case the private operator
who is operating on the nationalized route has a grievance
that the number of private operators specified in the
notified scheme is being exceeded then the permit issued
to the operator/operators in excess of the specified limit,
may be challenged before the statutory fora in accordance
with provisions of the Act. In any view of the matter, the
writ petition seeking the relief quoted earlier is not
maintainable particularly when neither the private
operators who are alleged to have got the permits in excess
of the number specified in the Notification nor the State
Undertaking have been impleaded as parties in the case.
In such a case a prayer for a declaration in the form as
sought in the writ petition could not be granted.
On consideration of the relevant aspects of the
matter we are of the view that the single Judge was right in
declining to grant relief to the writ petitioners and the
Division Bench was in error in interfering with the
judgment. Accordingly the judgment of the Division Bench
is set aside and that passed by the learned single Judge in
each case is restored. The appeals are disposed of
accordingly. No costs.
.J.
(D.P.MOHAPATRA)
.J.
(BRIJESH KUMAR)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
April 12, 2002