Judgment:
S.K. Dubey, J.
1. The petitioner, Madhya Pradesh State Road Transport Corporation (for short, the 'Corporation'), established under Section 3 of the Road Transport Corporation Act, 1950, by this petition under Articles 226 and 227 of the Constitution of India, has challenged the order dated 31-3-1990 (Annexure P/3), passed by the respondent No. 2, Regional Transport Authority (RTA), Gwalior, confirmed in revision by the State Transport Appellate Tribunal (STAT), Gwalior by order dated 2-6-1992 (Annexure P/9), of grant of a regular permit to respondent No. 3, of the route Dabra-Bhander via Goraghat, Uprai, Sitapur, Sonagiri, Chhoti Badoni, Lal Ka Tal, Datia, Pasari, Unnao, Kamad, Kusoli, Basbaha, covering a distance of 76 Kms., in which a portion of 22 Kms - Dabra to Sitapur (18 Kms.) and Lal Ka Tal to Datia (4 Kms.), forms part of a nationalised route, Gwalior-Jhansi, reserved exclusively for petitioner under scheme No. 38, approved and published in the Gazette dated 12-4-1985.
2, The petitioner contends that Notification No. 16-1-79-II-A (2), dated I8-2-I979 (Annexure P/4) permitted private operators to ply stage carriages on notified routes (the portion does not apply as the scheme No. 38 was approved under Section 68D of the Motor Vehicles Act 1939 (for short, the 'Old Act') and published in M. P. Gazette on 12-4-1985), Later, by a notification (No. 16-2-90-VIII, dated 15-11-1990) (Annexure P/5), issued under Section 102 of the Motor Vehicles Act 1988 (for short, the 'New Act'), the State Government invited objections of the proposed modification of the schemes specified therein, which included scheme No. 38 also, and later by Notification No. F-16-90-VIII dated 11-2-1991 (Annexure P/6), published in the M.P. Gazette, the proposed modification of the schemes was approved, permitting the private operators to ply for hire or reward the stage carriages in the manner shown in the Schedule, fixing a limit of exemption on notified route not exceeding 25 kilometers. The notification modifying the schemes was not retrospective in operation; therefore, the grant made by the RTA was invalid, and could not have been validated by the STAT applying the said notification retrospectively.
3. There is a dispute whether the four kilometer distance covered by route Lal Ka Tal to Datia falls within scheme No. 38 or not on Gwalior-Jhansi route, but that has no relevance for the purposes of the present petition, as the question involved is whether the approval of the modified schemes by the State Government under Section 102 of the New Act (Section 68E of the Old Act) can be applied retrospectively to validate the grant of permit.
4. The special provision relating to Transport Undertakings contained in Chapter VI of the New Act (corresponding to Chapter IV-A of the Old Act) provides for nationalisation of road transport services in the manner prescribed. After preparation of proposals by the State Government to nationalise road transport services to be operated by State Transport Undertakings and publication of such proposals in the Official Gazette and news papers in regional languages inviting objections as required under Section 99 of the New Act (corresponding to Section 68C of the Old Act) and after following the procedure as laid down in Section 100 (Section 68D of the Old Act) the State Government may approve or modify such proposal. A scheme approved or modified and published in the Official Gazette becomes final on the date of its publication and is called the 'approved scheme' and the area or route to which it relates is called the 'notified area or notified route.'
5. After the scheme is framed and approved in accordance with the provisions of Section 100 of the Act, it gives an exclusive right to the State Transport Undertaking to operate and ply transport service in relation to any area or route or portion covered by such scheme. As a necessary consequence, no private operator can operate his vehicle on any part or portion of a notified area or notified route unless authorised to do so by the terms of the scheme itself or unless the scheme is modified or cancelled in the manner laid down in Section 102 (Section 68E of the Old Act).
6. Under Section 102 the State Government has been empowered to modify or cancel any approved scheme at any time if it considers necessary in the public interest so to do after following the procedure prescribed in the section. It is clear from the section that the mere publication of a proposed scheme cannot have the effect of cancelling or modifying the approved scheme. When such proposal is approved and published, then only the scheme stands modified or cancelled, as the case may be. See a Full Bench decision of this Court in M.P.S.R.T. Corporation v. Regional Transport Authority, Rewa, 1989 MPLJ 773 : (AIR 1990 Madh Pra 17). It is also clear that such modification or cancellation of the approved scheme comes into effect from the date it is published in the Official Gazette, which takes away the substantive and exclusive right of the State Transport Undertaking to ply and operate on the portion of the route, permitting the private operators to ply stage carriages for hire or reward on the route covered by the scheme so modified or cancelled, as the case may be.
7. It is a well settled proposition of law that vested or substantive rights cannot be taken away by an enactment which is ex facie or by implication not retrospective. 'Before giving a construction of retrospectivity to an Act of Parliament one would require that it should either appear very clearly in the terms of the Act or arise by necessary and distinct interpretation, and perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. See Craies on Statute Law, 7th Edn., at pp. 389-90. The Supreme Court in case of Garikapati v. Subbiah Choudhry, AIR 1957 SC 540, at p. 553 (para 25) observed that the golden rule of construction is that in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed.
8. Thus, from the above discussion and the language of the notification modifying the scheme No. 38 and other schemes specified therein, it is abundantly clear that the modification was not given retrospective effect. In view of the above, the permit granted to respondent No. 3 to ply stage carriages on a portion of the nationalised route which overlapped with the nationalised route to that extent, was illegal and the grant to that extent cannot be sustained as being without jurisdiction.
9. To support the grant, learned counsel for respondent No. 3 submitted that R. 4(4) of the M. P. State Transport Appellate Tribunal (Appeals and Revisions) Rules 1972 gives power to the STAT, while hearing an appeal or revision, after following the procedure prescribed and after further enquiry, to confirm, vary or set aside the order against which the appeal or revision has been preferred, or to pass such other order in relation thereto as it deems fit and to make an order accordingly. As by the subsequent notification modification of scheme No. 38 has come into effect, no interference is warranted in the order of the STAT. Counsel pressed into service a decision of the Supreme Court in case of P. Venkateswarlu v. Motor and General Traders, AIR 1975 SC 1409.
10. In our opinion, the reliance of the learned counsel is inappropriate. It is clear that the grant of permit so made on the portion of the notified route was invalid. The RTA usurped the jurisdiction and authority which was not vested in it by law, as Section 104 Section 68FF of the Old Act) in mandatory term prohibits such grant of permit to a private sector on notified route or notified area except in accordance with the provisions of the scheme or under the exception clause contained in the proviso to the section, but that was not done. Therefore, the grant being invalid could not be validated, as the notification was not retrospective in operation.
11. In the result, the petition is allowed; the order of the STAT is hereby quashed. Because of the quashment of the order of grant of permit on the portion of the overlapping route, the travelling public shall suffer. Therefore, in the circumstances, we direct respondent No. 3 to apply before the RTA for grant of a stage carriage permit on the overlapping route in view of the Notification No. F16-2-90-VIII, dated 11th February 1991. If this prayer is made, it shall be heard and disposed of in accordance with law within a period of two months. Till then, respondent No. 3 shall be allowed to ply on the portion of the overlapping route by the grant of a temporary permit, if applied therefor by him.
12. Parties to bear their own costs of this petition.