Full Judgment Text
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PETITIONER:
SHER SINGH & ORS
Vs.
RESPONDENT:
UNION OF INDIA AND OTHERS
DATE OF JUDGMENT21/10/1983
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
VARADARAJAN, A. (J)
CITATION:
1984 AIR 200 1984 SCR (1) 464
1984 SCC (1) 107 1983 SCALE (2)531
CITATOR INFO :
RF 1986 SC1541 (9)
R 1986 SC2039 (2,3,5,6)
R 1988 SC 18 (11)
ACT:
Constitution of India 1950 Article 14 & 19 (1) (g)
Motor Vehicles Act-1939-Section 47 (1-H) Preference to
State Transport Corporations for grant of inter-state permit
over private operators-Whether denial of equality before
law-Denial of right to carry on trade.
Motor Vehicles Act, 1939 Sections 47 (1-H) & 58 (2)-
Grant of Inter-state permit-Preference to State transport
Corporations-Whether violative of Articles 14 and 19 (1) (g)
of the Constitution.
Application for renewal of existing permit by private
operator-Whether entitled to preference over fresh
application of a State Transport Undertaking-
Tamilnadu Motor Vehicles Rules 155 A-Assignment of 5
marks to State Transport Undertaking-Whether valid.
Words & Phrases.
"as if"-Meaning of-Section 58 (2) Motor Vehicles
Act 1939.
HEADNOTE:
The petitioner in the Special Leave Petition was the
holder of a Stage carriage permit on an inter-State route He
held several permits for operation of the said route and as
the period prescribed for a few of them had expired, he
applied for renewal under section 58 of the Motor Vehicles
Act, 1939 to the Regional Transport Authority which granted
renewal. In the meanwhile, the State Road Transport
Corporation the 5th respondent made an application for
grant of a stage carriage permit for operation on the said
route. This application was advertised and the matter was
taken up for consideration. During the pendency of this
application the petitioner was granted temporary permits
under section 62 which were renewed from time to time.
When the application of the petitioner for renewal of
permits and the application of the State Road Transport
Corporation for allotment of new permit were taken up for
consideration, an objection was raised on behalf of the
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Corporation that as the route was an inter-State route it
was entitled to the permit in preference to the petitioner
in view of section 47 (1-H). On behalf of the petitioner it
was contended that section 58 entitled the petitioner to
renewal of permit in preference to the Corporation. The
Regional Transport Authority negatived the petitioner’s
contention and allotted the permit to the Road Transport
Corporation.
465
The petitioner in his writ petition to the High Court
contended that section 47 (1-H) was constitutionally invalid
and no preference could be granted in favour of the State
Road Transport Corporation. The Single Judge dismissed the
writ petition and the Division Bench upheld the order.
In the Special Leave Petitions to this Court it was
contended on behalf of the petitioners that the State Road
Transport Corporation must either take recourse to the
provisions contained in Chapter IV-A of the Act, which makes
special provisions relating to State Transport Undertaking
or otherwise if it wants to compete without recourse to
chapter IV-A it must stand in competition with other
applicants for allotment of stage carriage permits. Any
preference that the State Road Transport Corporation may
enjoy in respect of an interstate route under sub-section
(1-H) is violative of Article 14 and the fundamental freedom
to carry on trade under Article 19 (1) (g). Section 58
entitled the petitioners to renewal of permit in preference
to the application for grant of a new permit made by the
State Transport Undertaking.
In the connected Special Leave Petitions, it was
contended on behalf of the petitioner that Rule 155-A of the
Tamilnadu Motor Vehicles Rules provides for a marking system
under different heads to objectively assess who is the best
suited for grant of the permit, and consequently an ad hoc
assignment of marks and failure to weed out the application
of the State Transport Corporation on the ground of
disqualification for not providing night-halt cleaners
vitiated the decision of the Transport Authority.
Dismissing the Petitions.
^
HELD: 1.(i) Section 47 (1-H) would not deny equality
before law and hence would not offend Article 14. [474-E]
(ii) The Regional Transport Authority under section 47
upon a judicious consideration of merits and demerits of
every applicant must in a fair and reasonable manner decide
who amongst the applicants would perform the duty and carry
out the obligations under the permit. However, sub-section
(1-H) carves out an exception, that where an application for
stage carriage permit on an inter-state route is made by a
State Transport Undertaking it must be accorded preference.
But while granting preference, the Regional Transport
Authority must satisfy itself that the Corporation would be
able to operate on the inter-state route without detriment
to its responsibility for providing efficient and adequate
road transport service. [471 C-D]
Dosa Satyanarayanamurty etc. v. The Andhra Pradesh
State Road Transport Corporation [1961]1 S.C.R. 642 referred
to.
(iii) While considering the application for stage
carriage permit under section 47, the private operator has
an equal chance to get a permit even on an inter-State route
if it shows that the Undertaking is either unable to provide
efficient and economical service or that the private
operator is better equipped to render the same. Preference
in this context would mean that other things
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466
generally appearing to be qualitatively and quantitatively
equal though not with mathematical accuracy, statutory
provision will tilt the balance in favour of the
Undertaking. [474 D]
(iv) Section 47 (1-H) provides that in the case of
inter-State route, the Undertaking will have preference in
the matter of stage carriage permit. The expression
‘preference’ amongst others, means prior right, advantage,
precedence etc. It signifies that other things being equal,
one will have preference over the other. [473 B]
(v) When an application for the stage carriage permit
is being processed as required by sec. 47, the application
of the Undertaking for an inter-State route shall be
examined as an application of any other private operator.
Their merits and demerits must be ascertained keeping in
view the requirements of clauses (a) to (f) of sec. 47 (1)
and after comparing the merits and demerits of both the
application of the Undertaking will have preference over
others. [473 C-D]
(vi) Qualitative and quantitative comparison on broad
features of passenger transport facility such as fleet,
facilities to travelling public and other relevant
consideration may be undertaken and after balancing these
factors other things being equal, the application of the
Undertaking shall be given preference over other applicants.
There is no question of eliminating private operators merely
because the Undertaking applies for a stage carriage permit
under Chapter IV. [473 E]
(vii) In an application under Chapter IV, the
Corporation has to enter the arena like any other applicant,
face the competition and come-up to the level of other
Private operators intending to obtain stage carriage permits
and then in respect of the route in question claim
preference. Competition is the essence of improved
commercial Service. [473 F]
2. (i) There is no substance in the contention of the
petitioner that sec. 47(1-H) is violative of Art. 19 (1) (g)
in that it denies the fundamental freedom to carry on trade
because the petitioner has not been denied his free dom to
carry on trade. The petitioner is entitled to make an
application under Chapter IV for a stage carriage permit and
must compete with other private operators as also the
Undertaking. [474 F]
(ii) The Undertaking whose nett profits are required to
be spent for the provision of amenities to the passengers
using road transport services, welfare of labour employed by
the Undertaking, for financing the expansion programmes of
the Undertaking, and the balance to be made over to the
State Government for the purpose of road development must
receive in larger public interest preference for a permit
compared to a private operator whose profits would go to
argument his private income. [475 A-B]
Lachhman Das v. State of Punjab & Ors.[1963] 2 S.C.R.
353; Mannalal & Anr. v. Collector of Jhalawar and Ors.
[1961] 2 S.C.R. 962 referred to.
467
3 (i) If an application for renewal of a permit was to
be trated differently than the application for a permit made
under section 45 and perocessed under section 47 and other
connected provisions, it was absolutely unnecessary for the
legislature to provide that an application for renewal of a
permit shall be made and disposed of as if it were an
application for a fresh permit. [476 E]
(ii) The expression "as if" occurring in Section 58 (2)
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in the phrase "as if it were an application for a permit .."
would mean and imply that the application for renewal must
be made in the same manner and to the same extent as an
application for a fresh permit and must be processed as
such. This means that even where an existing permit holder
applies for renewal, it has to be advertised and fresh
applicants can apply for a permit. [476F]
(iii) Section 47 (1-H) would also came into play when
an application is for renewal of a permit on an inter-State
route. There is no conflict between Section 47 (1-H) and
Section 58 (2). [476 G]
4. Once the assignment of 5 marks to the State
Transport Undertaking, is held to be valid the Transport
Authority was perfectly justified in refusing renewal of
permits to the petitioners. Regarding failure to explain
absence of nighthalt cleaners, in the absence of concrete
evidence, no inference can be drawn. [478 G-H]
D.R. Venkatachalam & Ors. v. Dy Transport Commissioner
JUDGMENT:
&
CIVIL APPELLATE JURISDICTION: Special Leave Petition
(Civil) No. 6605 of 1983.
From the Judgment and Order dated the 6.4.1983 of the
Rajasthan High Court in D.B. Special Appeal No. 74 of 1983.
WITH
Special Leave Petition Nos. 9678-9680 of 1982.
From the Judgment and Order dated the 4th October, 1982
of the Madras High Court in C.R.P. No. 2880-82/1978.
AND
Write Petition Nos. 9600-9601 & 9759-9760 of 1983.
Under Article 32 of the Constitution of India.
468
K.K.Venugopal and Mukul Mudgal for the Petitioner in
SLP. 6605/83.
Shanti Bhushan, S.K. Jain and B.M. Mathur for the
Respondents in SLP. 6605/83.
C.S. Vaidyanathan for the Petitioner in SLP (Civil)
Nos. 9678-9680 of 1982.
Dr. Y.S. Chitale and A.V. Rangam for the Respondents in
SLP (Civil) Nos. 9678-9680 of 1982.
S.N. Kacker and A.K. Panda for the Petitioners in Writ
Petitions.
Shanti Bhushan and B.N. Mathur, S.K.Jain & S.D. Sharma
for the Respondents in Writ Petitions.
The Judgment of the Court was delivered by
DESAI, J. In this group of special leave petitions and
writ petitions, constitutional validity of Sec. 47 (I-H) of
the Motor Vehicles Act, 1939 (‘Act’ for short) directly or
indirectly figures. With a view to focussing attention on
the context in which the question is raised, it may be
advantageous to refer to the factual matrix in S.L.P.
6605/83, in which the learned Single Judge and the Division
Bench of the High Court repelled the challenge. We would
first deal with the principal challenge common to all
petitions and then dispose of specific contention raised in
other petitions clubbed together here. For representative
facts we would refer to S.L.P. 6605/83.
Re: S.L.P. No. 6605/83: Petitioner Sher Singh is the
holder of a stage carriage permit on Behror-Rewari via
Barrod, Shahjahanpur inter-State route. A portion of the
route from Bahror to National Highway No. 8 via Barrod and
Shahjahanpur 28 k.ms. in length passes through Rajasthan
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State and the rest of the portion of the route 22 K.ms. in
length lies in Haryana State. It is thus an inter-State
route. Petitioner holds 12 permits, for operating on the
aforementioned route. Of the 12 permits, the period
prescribed under 8 permits expired and the petitioner
applied for the renewal of the permits under Sec. 58 of the
Act. Regional Transport Authority granted renewal of the
permits upto and inclusive of January 20,
469
1981. The petitioner again applied for renewal of the
permits on December 29, 1980. The Rajasthan State Road
Transport Corporation, fifth respondent (‘Corporation’ for
short) made an application to the Regional Transport
Authority on April 20, 1981 for stage carriage permit on the
aforementioned route. This application was as usual
advertised. The application of the petitioner for the
renewal of his permits accordingly was taken up for
consideration on April 30, 1981. Pending the consideration
of the application for renewal of permits, petitioner was
granted temporary permits under Sec. 62 for a period of four
months commencing from the date of the expiry of the earlier
permit. The temporary permits were thus to expire on May 20,
1981. And these temporary permits were further renewed for a
period of 4 months Thereafter the application of the
petitioner for renewal of his permits and the application
for stage carriage permit made by the Corporation were taken
up for consideration. An objection was raised by the
Corporation that as the route in question is an inter-State
route, it is entitled to permit in preference to the
petitioner in view of the provision contained in Sec. 47 (I-
H) of the Act. On the other hand, it was contended on behalf
of the petitioner that in view of the provision contained in
Sec. 58, the petitioner is entitled to renewal of his
permits in preference to the Corporation, which has made an
application for a fresh permit. This contention found favour
with the Regional Transport Authority and the renewal of
permits was refused to the petitioner and the permits were
granted to the Corporation. This decision was questioned in
a writ petition filed by the present petitioner in which the
only contention raised was that the preference was accorded
to the Corporation for grant of a permit under Sec. 47 (I-H)
of the Act which is constitutionally invalid, and once no
such preference could be granted, the preference in favour
of a renewal of permit under Sec. 58 should have a
precedence and the renewal ought to have been granted.
It was contended before the learned Single Judge of the
High Court that Sec. 47 (1-H) is violative both of Art. 14
and Art. 19 (1) (g) and is thus constitutionally invalid.
That was the only contention canvassed before the learned
Single Judge which did not find favour with him as well as
the Division Bench of the Rajasthan High Court. Hence the
petitioner filed this petition for special leave. A notice
was ordered to be issued to the respondent and it was
directed that the petition be finally disposed of at this
stage as the only question raised is one of law and no
investigation of facts is necessary.
470
A brief reference to the relevant provisions of the Act
may help us in demarcating the contours of controversy with
precision. Chapter IV of the Act contains provisions for
control of transport vehicles. For regulating the transport
business, a scheme for granting different types of permits
has been statutorily prescribed. There are various kinds of
permits contemplated by the Act such as stage carriage
permit, contract carriage permit, all India tourist permit,
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special permit, permits for transport of goods etc. Various
authorities have been constituted under the Act for the
purpose of implementing the Act. Power has been conferred
upon specific authorities for granting different kinds of
permits. Sec. 47 prescribes procedure which the Regional
Transport Authority has to follow while examining and
deciding an application for stage carriage permit. Sec. 47
was specifically amended by Act 47 of 1978 which came into
force on January 16,1979 By the Amending Act, sub-secs (1-A)
to (1-H) were added to Sec. 47. The focus of controversy is
on subsec. (1-H). Sub-sec. (1-H) reads as under:
"(1-H): Notwithstanding anything contained in this
section, an application for stage carriage permit from
a State Transport undertaking for operating in any
inter-State route shall be given preference over all
other applications:
Provided that the authority shall not grant a
permit under this sub-section unless it is satisfied
that the State transport undertaking would be able to
operate in the inter-State route without detriment to
its responsibility for providing efficient and adequate
road transport service in any notified area or notified
route as is referred to in sub-section (3) of Section
68-D where the undertaking operates the service.
Explanation:-For the purposes of this sub-section,
’inter-State route’ means any route lying contiguously
in two or more States.’.
A bare reading of the provision contained in sub-sec.
(1-H) shows that where a Corporation set up under the Road
Transport Corporations Act, 1950 is one of the applicants
for a stage carriage permit on an inter-State route, then as
between other applicants and a State Transport Undertaking
(’Undertaking’ for short), the latter
471
will have preference over others. Routine statutory
procedure prescribed in Sec. 47 for grant of a stage
carriage permit requires the Regional Transport Authority
which has the power to grant permit before selecting who
amongst the numerous applicants should be granted the permit
must take into consideration various things that are
enumerated in Sec. 47. Fair approach would be that after
examining the credentials of every applicant, the Regional
Transport Authority shall grant permit to the person who in
its opinion would best serve the travelling public. The
Regional Transport Authority upon a judicious consideration
of merits and demerits of every applicant must in a fair and
reasonable manner decide who amongst the applicants would
perform the duty and carry out the obligations under the
permit. However, sub-sec. (1-H) carves out an exception to
this generally well-recognised principle that an
administrative authority has to adopt while exercising the
power conferred upon it by the statute, that where an
application for a stage carriage permit on an inter-State
route is made by all intending applicants which includes a
State Transport undertaking, its application must be
accorded preference. But while granting preference, the
Regional Transport Authority must satisfy itself that the
Corporation would be able to operate on the inter-State
route without detriment to its responsibility for providing
efficient and adequate road transport service in any
notified area or notified route as is referred to in sub-
sec. (3) of Sec. 68-D where the undertaking operates the
service.
At this stage, a reference to Sec. 58 would be useful.
It provides for duration and renewal of stage carriage and
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contract carriage permits other than temporary permit
granted under Sec. 62. An existing holder of permit may
apply for renewal of permit. Sub-sec. (2) of Sec. 58
requires that a permit may be renewed on an application made
and disposed of as if it were an application for a permit.
There is a proviso to sub-sec. (2) which prescribes the time
limit within which an application for renewal of different
kinds of permits may be made. There is a second proviso
which is material and which may be extracted:
"Provided further that other conditions being
equal, an application for renewal shall be given
preference over new applications for permits."
Chapter IV-A was introduced in the Act by Amending Act
100 of 1956 which came into force on February 2, 1957.
Chapter IV-A makes special provisions relating to State
Transport Undertaking.
472
The broad scheme of Chapter IV-A is that a State Transport
Under taking may prepare and publish a scheme on road
transport service. On the publication of the scheme,
objections can be filed as provided in Sec. 68-D. Sec. 68-E
confers powers for modification and cancellation of the
Scheme. Then comes Sec. 68-F which provides that where, in
pursuance of an approved scheme, any State transport
undertaking applies, in such a manner as may be prescribed
by the State Government in this behalf, for a stage carriage
permit or a contract carriage permit in respect of a
notified area or notified route, the State Transport
Authority in any case where the said area or route lies in
more than one region and the Regional Transport Authority in
any other case shall issue permit to the State Transport
undertaking, notwithstanding anything to the contrary
contained in Chapter IV. In short in respect of a notified
area or a notified route, an application for permit by State
Transport undertaking shall be granted to the exclusion of
any other operator. Apart from this specific provision in
Sec. 68-F, this outcome to some extent also emerges from the
provision contained in Sec. 68-B which provides that the
provisions of Chapter IV-A and the rules and orders made
thereunder shall have effect notwithstanding anything
inconsistent there with contained in Chapter IV of the Act
or any other law for the time being in force or in any
instrument having effect by virtue of any such law.
The first contention raised on behalf of the petitioner
was that the State Transport Undertaking must either take
recourse to provision in Chapter IV-A or otherwise if it
wants to compete without recourse to Chapter IV-A, it must
stand in competition with other applicants for stage
carriage permit and any preference that it may enjoy in
respect of inter-State route under sub-sec. (1-H) of Sec. 47
is violative of Art. 14 and is denial of fundamental freedom
to carry on trade guaranteed to petitioners by Art. 19 (1)
(g).
At the outset it is necessary to bear in mind the legal
position of a State Transport Undertaking when dealt with
under Chapter IV-A and Chapter IV of the Act. If an approved
scheme in respect of a notified area or a notified route is
in force, State Transport Undertaking alone is entitled to
operate vehicles and therefore is entitled to obtain stage
carriage permits both regular and temporary depending upon
whether the scheme provides for total or partial exclusion
of private operators. However, when an application for a
permit is made under Chapter IV, the Undertaking has to
compete
473
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with private operators who may as well make an application
for permit. When the Undertaking applies for permit under
Chapter IV, it must satisfy the Regional Transport Authority
that it is better suited than the private operator to render
transport facility to the travelling public. Sec. 47 (1-H)
however, provides that in the case of inter-State route, the
Undertaking will have preference in the matter of stage
carriage permit. Does preference of this nature deny
equality guaranteed by Art. 14 ? The expression ’preference’
amongst others means prior right, advantage, precedence etc.
But how would it be possible to give precedence one over the
other. It signifies that other things being equal, one will
have preference over the others. When an application for a
stage carriage permit is being processed as required by Sec.
47, the application of the Undertaking for an inter-State
route shall be examined as application of any other private
operator. Their merits and demerits must be ascertained
keeping in view the requirements of (a) to (f) of Sec. 47
(1) and after comparing the merits and demerits of both, not
with the yardstick of mathematical accuracy, but other
things being equal, the application of the Undertaking will
have preference over others. Qualitative and quantitative
comparison on broad features of passenger transport facility
such as fleet, facilities to travelling public and other
relevant consideration may be undertaken and after balancing
these factors other things being equal, the application of
the Undertaking shall be given preference over other
applicants. There is no question of eliminating private
operators merely because the Undertaking applies for a stage
carriage permit under Chapter IV. That situation is catered
to under Chapter IV-A. In an application under Chapter IV,
Corporation has to enter the arena like any other applicant,
face the competition and come-up to the level of other
private operators intending to obtain stage carriage permits
and then in respect of the route in question claim
preference. Would this statutory provision violate equality
guaranteed by Art. 14 ? The answer is obviously in the
negative. Competition is the essence of improved commercial
service. After ensuing competition in matter of rendering
more efficient transport service a public sector undertaking
is assured statutory preference, remember no monopoly, there
is no denial of equality guaranteed by Art. 14 ? A similar
argument when the vires of the provisions contained in
Chapter IV-A were questioned in Dosa Satyanarayanamurty etc.
v. The Andhra Pradesh State Road Transport Corporation (1)
did not commend to the Constitution Bench when it repelled
the challenge observing as under:
474
"Ordinarily a State Transport Undertaking should
be in a better position than others to carry on the
said services for the benefit of the public;
administratively, financially and technically it can be
expected to be in a far better position than others. It
can provide more well equipped buses, give better
amenities to the travelling public, keep regular
timings repair or replace the buses in emergencies. It
may also employ efficient supervisory staff to keep
things going at an appreciably high standard."
This would apply mutatis mutandis to the present
situation. But let it be made clear that while considering
the application for stage carriage permit under Sec. 47, the
private operator has an equal chance to get a permit even on
inter-State route if it shows that the Undertaking is either
unable to provide efficient and economical service or that
the private operator is better equipped to render the same.
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Preference in this context would mean that other things
generally appearing to be qualitatively and quantitatively
equal though not with mathematical accuracy, statutory
provision will tilt the balance in favour of the
Undertaking. Viewed from this perspective the provision
contained in Sec. 47 (1-H) would not deny equality before
law and hence would not effend Art. 14.
The next contention was that Sec. 47 (1-H) is violative
of Art. 19 (1) (g) in that it denies to the petitioner the
fundamental freedom to carry on trade. There is no substance
in this contention because the petitioner has not been
denied his freedom to carry on trade. The petitioner is
entitled to make an application under Chapter IV for a stage
carriage permit and must compete with other private
operators as also the Undertaking. It is too late in the day
to contend that a preference in favour of the Undertaking
would be violative of Art. 19 (1) (g) for the obvious reason
that Undertaking like all other applicants for permit has to
compete for a permit. It may be recalled that when it came
to the provisions of Chapter IV-A, this Court has more often
than once upheld the validity of the provisions contained in
Chapter IV-A and repelled the challenge of its being
violative of Art. 19 (1) (g), even though the private
operator may be wholly excluded from even applying for a
permit in respect of a notified area or a notified route
being part of an approved scheme. From a slightly different
angle, the challenge may be repelled in that other things
475
being equal, even apart from the statutory preference, the
Undertaking whose net profits are required to be spent for
the provision of amenities to the passengers using road
transport services, welfare of labour employed by the
Undertaking, for financing the expansion programmes of the
Undertaking, and the balance to be made over to the State
Government for the purpose of road development must receive
in larger public interest preference for a permit compared
to a private operator whose profits would go to augment his
private income. Sec. 30 of the Road Transport Corporation
Act, 1950 makes statutory provision for disposal of net
profits of a State Transport Undertaking. In a slightly
different context, this Court in Lachman Das v. State of
Punjab & Ors. while repelling the challenge to the validity
of Patiala Recovery of State Dues Act, IV of 2002 BD
approved the ratio in Mannalal & Anr. v. Collector Of
Jhalawar and Ors.(2) in which it was held that the dues of
the Government of a State are the dues of the entire people
of the State. This being the position, a law giving special
facility for the recovery of such dues cannot, in any event,
be said to offend Art. 14 of the Constitution.’ This very
approach requires to be adopted while examining the
challenge under Art. 19 (1) (g).
It was next contended that petitioner was an existing
permit holder and therefore, under Sec. 58 it was entitled
to renewal of its permits in preference to the applications
for new permits made by the Undertaking. The second proviso
to Sec. 58 (2) does provide that ’other conditions being
equal, an application for renewal shall be given preference
over new applications for permits.’ What has surprised us
the most is that while the petitioners have a serious
grievance against the preference accorded to the Undertaking
for a permit on the inter-State route under Sec. 47 (1-H),
the same petitioner is keen to protect preference in favour
of the renewal of a permit against a new applicant
statutorily provided in Sec. 58. But Sec. 58 also manifests
the legislative intention when it uses the expression
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preference with an adjectival clause ’that other conditions
being equal’, an application for renewal will have a
preference over the new applications.
The first submission in this behalf is that when an
application is made for a renewal of a permit, it has to be
considered only under
476
Sec. 58 and the preference therein provided excludes any
consideration of an application for a permit under Sec. 47.
Approaching the matter from this angle, it was contended
that as the present petitioner has made an application for
the renewal of the permit, he should have been accorded
preference as mandated by the second proviso to Sec. 58(2)
over the fresh application of the Undertaking and
consideration of the application of the renewal of the
permit under Sec. 58 excludes importing of the provisions of
Sec. 47. This approach overlooks a specific provision
enacted in sub-sec. (2) of Sec. 58 which provides as under:
"58 (2) A permit may be renewed on an application
made and disposed of as if it were an application for a
permit .."
When a statute prescribes that an application for renewal of
a permit shall be made and disposed of as if it were an
application for a permit, the legislature incorporated by
pen and ink all those provisions which are applicable for
grant of a permit upon a fresh application made in this
behalf. If an application for renewal of a permit was to be
treated differently than the application for a permit made
under Sec. 45 and processed under Sec. 47 and other
connected provisions, it was absolutely unnecessary for the
legislature to provide that an application for renewal of a
permit shall be made and disposed of as if it were an
application for a fresh permit. The expression ’as if’ is
used to make one applicable in respect of other. Therefore,
the expression ’as if’ used in Sec. 58 (2) would mean and
imply that the application for renewal must be made in the
same manner and to same extent an application for a fresh
permit and must be processed as such. This would mean that
even where an existing permit holder applies for a renewal
of his permit, it has to be advertised and fresh applicants
can as well apply for a permit to ply vehicles on the same
route for which the previous holder of permit has applied
for renewal of his permit. After considering all such
applications, other conditions being equal, an existing
operator who has applied for renewal will have preference.
Therefore, by necessary interpretation, Sec. 47 (1-H) would
also come into play when an application is for renewal of a
permit on an inter-State route. There is no conflict between
Sec. 47 (1-H) and Sec. 58 (2). It is therefore, not possible
to accept the submission that while considering the
application for renewal of a permit, Sec. 47 (1-H) is not
attracted.
477
It appears that the State of Rajasthan had amended Sec.
58 (2) in its application to that State by engrafting a
third proviso to sub-sec. (2) of Sec. 58 by Rajasthan Act 8
of 1973, which reads as under:
"Provided also that other conditions being equal,
an application for stage carriage permit by a State
Transport Undertakings, as defined in Section 68-A,
whether an application for renewal or a new application
shall be given preference over all other applications
for renewal."
Addition of this proviso merely makes explicit what was
implicit in sub-sec. (2) of Sec. 58. Nothing was pointed out
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to us to hold that the Rajasthan State Legislature lacked
competence to add the aforementioned proviso to sub-sec. (2)
of Sec. 58.
Re: S.L.Ps. Nos. 9678 to 9680/82:
In this group of petitions for special leave, it was
contended before the High Court that as Pallavan Transport
Corporation Ltd., the first respondent, did not make
provision for night halt cleaners, the application for
permits made by them were liable to be screened. The High
Court declined to examine this contention on the short
ground that this contention was not raised before the State
Transport Appellate Tribunal. For the same reason, we could
as well have declined to examine this contention. However,
it may as well be pointed out that even if the contention is
to be examined on merits, there is no substance in it. The
State of Tamil Nadu has framed what are styled as Tamil Nadu
Motor Vehicles Rules. Rule 155-A provides for a marking
system under different heads to rival claimants for permit
to objectively assess who amongst them is the best to whom
permit should be granted. Before proceeding to assign marks
under different heads, the Transport Authority has to screen
applications so as to weed out those unsuitable on one or
the other ground mentioned in the rule. One such
disqualification is the failure to provide for night halt
cleaners. It was urged that after the Transport Authority
made the enquiry from the first respondent-Corporation
whether it has provision for night halt cleaners, without
waiting for the clarification, the Transport Authority
proceeded to dispose of the application. It was next pointed
out that Rule 155-A (3) (d) provides that 5 marks shall be
awarded to the applicant falling within the proviso to cl.
(c) of Sec. 62 of the Act which means and implies a State
Transport Undertaking. The
478
grievance is that such adhoc assignment of marks and failure
to weed out the application on the ground of
disqualification for not providing night halt cleaners has
vitiated the decision of the Transport Authority. The
validity of Rule 155-A and its various sub clauses came up
for consideration of this Court in D.R. Venkachalam & Ors.
vs. Dy. Transport Commissioner & Ors.(1) This Court repelled
the challenge especially to the provision for assigning 5
marks to a State Transport Undertaking observing as under:
"A State enterprise, in a truly Welfare State, is
charged with a social consciousness and responsibility
for its citizens, an attention to serve them and a
willingness to embark on public utility undertakings
better to fulfil people’s demands. The public sector
enterprises are expected to be model employers and
model servants planning their budgets, subjecting
themselves to public audit and criticism and inquest by
legislative committees and the Houses of the
legislature. Profits are their concern but, more
importantly, public weal is their commitment. Such is
the philosophy of the State sector in our socialistic
pattern of society."
On the question of assignment of 5 marks to State Transport
Undertaking this Court held that ’this is not an arbitrary
stroke of favouritism because there are many promotional
factors bearing on the interest of the travelling public
which a State enterprise qua State enterprise will, but a
private enterprise qua private enterprise will not, take
care of. After all, private enterprise has its primary
motivation in profit’. The Court further observed that ’the
superiority in many respects of State Transport
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Undertakings, in the legislative judgment, has led to r.
155-A’. The Court ultimately held that the assignment of
marks under r. 155-A is geared to public interest, which is
the desideratum of s. 47 (1) of the Act. Once the assignment
of 5 marks to State Transport Authority Undertaking is held
to be valid, the Transport Authority was perfectly justified
in refusing renewal of permits to the petitioners in
comparison to the State Transport Undertaking. As for
failure to explain absence of night halt cleaners, in the
absence of concerte evidence, no inference can be drawn.
This was the only additional contention in this group of
petitions and we find no substance in it.
479
These are all the contentions in this group of
petitions and as we find no substance in any of them, all
the petitions are dismissed with no order as to costs.
N. V. K. Petitions dismissed.
480