Smt. Durga Devi Vs. State Transport Appellate Tribunal and ors. - Court Judgment

Excerpt:
motor vehicles act, 1939 - section 68 and motor vehicles act, 1988--section 104--grant of permit--route notified--state transport undertaking not applied for permit--held, it is not prohibited to grant permit to private operator;what is prohibited is grant of a permit, on a notified area or notified route. the act of 1988 has gone a step further that even on a notified route a permit can be granted to a private operator if the state transport undertaking has not applied for permit. that shows that the motor vehicles act, 1988 does not prohibit the grant of a permit on the route for which a scheme has been framed but it has not been finalised by the state government and the area or route or portion thereof has not been notified;(b) motor vehicles act, 1939 - section 68 and motor vehicles act, 1988--section 104--grunt of permit--permit applied for route from u to p--route from u to s extended upto p--held, appeal was wrongly considered by stat;the petitioner has applied for the route from udaipur to palasama and the permit has also been granted to the petitioner upto palasamsa though it was mentioned that it is udaipur to sayara but it was extended upto palasama which is clear from annex. 13. hence, this aspect has also been wrongly considered by the learned state transport appellate tribunal;writ allowed - - , if is satisfied that it is necessary to increase in the public interest, the number of vehicles operating in such area or route or portion thereof issue, the temporary permit prayed for by the state transport undertaking but that was not also subject to the condition that it shall not be effective if the scheme is published under subsection (3) of section 68d. therefore, the view taken by the state transport appellate tribunal does not appear to be well founded. therefore,'by virtue of proviso to section 72 the grant is bad.ordera.k. mathur, j.1. the petitioner by this writ petition has challenged the order dated 21-10-1993 passed by the state transport appellate tribunal, rajasthan, jaipur.2. in udaipur region, there is an existing route known as udaipur-sayara extended upto palasama as shown in the rough sketch map, which has been placed on the record as annex. 1. the petitioner submitted an application before the r.t.a., udaipur for grant of a non-temporary stage carriage permit on the udaipur to sayara extended upto palasma existing route via iswal, kelwada, bhanpura, sayara. the r.t.a. directed its secretary for sending a circulation note. the secretary 'to the r.t.a., udaipur in pursuance of the order of the r.t.a., udaipur sent a circulation note to the r.t.a., udaipur which came to be considered by the authority on 13-7-1993. the r.t.a., udaipur granted a non-temporary stage permit in favour of the petitioner on 13-7-1993. the petitioner in pursuance of the aforesaid grant made by the r.t.a., udaipur availed the said non-temporary stage carriage permit on 24-7-1993 and started plying her vehicle on the route on 25-7-1993. the petitioner apprehended that this grant is likely to be challenged by some interested operators, therefore, he filed a caveat before the state transport appellate tribunal, rajasthan, jaipur. the apprehension of the petitioner came true when the respondent no. 3 who is an operator of udaipur-kelwara route filed a revision petition on 16-8-1993 before the state transport appellate tribunal against the grant made in favour of the petitioner. the matter was argued by both the learned counsel and ultimately after hearing both the parties the state transport appellate tribunal vide its order dated 21-10-1993 set aside the grant on two grounds that under section 68c of the motor vehicles act, 1939 there is a draft scheme of udaipur-kelwara which overlaps the present route and scheme is law, therefore, no permit can be granted on this route which overlapse this draft scheme. secondly it was held that the petitioner has been granted a permit on a route which was not applied for by the petitioner. on both these counts the state transport appellate tribunal allowed the revision petition filed by the respondent no. 3 and set aside the grant made in favour of the petitioner. aggrieved against this order of the state transport appellate tribunal, the present writ petition has been filed by the petitioner. it is also pointed out by the, petitioner that the state transport appellate tribunal in this connection heavily relied upon the decision of the hon'ble supreme court delivered in the case of rama krishan verma and etc. etc. v. state of u.p. and etc. etc., air 1992 sc 1888 : (1992 air scw 2141) which is not applicable in the present case.3. a reply has been filed by the respondent no. 3 and he has contested the position.4. a rejoinder has also been filed by the petitioner.5. mr. munshi, learned counsel for the petitioner, has pointed out that in respect of the route udaipur-kelwara a draft scheme was was published under section 68c which is being overlapped by the udaipur-sayara extended upto palasama route over which the petitioner was granted a non-temporary stage carriage permit by the r.t.a. and it is only a draft scheme. the provisions of section 68f (1a), (1b), (1c) and (1d) as it existed in the old motor vehicles act, 1939 do not find mention in the new motor vehicles act, 1988. therefore, these provisions stood re-pealed and the state transport appellate tribunal has committed a clear error in invoking those provisions in holding that since the scheme under section 68c of the act of 1939 is law, therefore, no non-temporary stage carriage permit can be granted on this route.6. mr. vyas, learned counsel for the respondent. no. 3 has not disputed this position and submitted that it is true that the provisions of section 68f(1a), (1b), (1c) and (1d) do not find mentioned in the new motor vehicles act, 1988.7. i think the submission of mr. munshi is correct. prior to coming into force of the motor vehicles act, 1988 there were provisions of section 68f(1a), (1b), (1c) and (1d) and therein it was laid down that if any scheme has been published and if the state transport undertaking applies for a temporary permit in respect of the area or route of portion thereof then the r.t. a., if is satisfied that it is necessary to increase in the public interest, the number of vehicles operating in such area or route or portion thereof issue, the temporary permit prayed for by the state transport undertaking but that was not also subject to the condition that it shall not be effective if the scheme is published under subsection (3) of section 68d. section 68f (1c) also provided that if no application for the temporary permit is applied for by the state transport undertaking under sub-section (1 a) then it may be granted to any person on such terms and conditions which may think fit by the s.t.a. or the r.t.a., as the case may be. but it will be ceased to be effective on issue of a permit on the state transport undertaking in respect of that area or route or portion thereof. it is also provided that the moment the final scheme is published then such temporary permit shall automatically come to an end. but no such similar provisions regarding prohibition on grant of permit during the finalisation of the draft scheme appear in the new motor vehicles act, 1988. chapter vi which deals with the state transport undertaking only provides a restriction under section 104 which says that where a scheme is published under subsection (3) of section 100 in respect of any notified area or notified route the state transport authority or the regional transport authority, as the case may be, shall not grant any permit except in accordance with the provisions of the scheme. the proviso also says that in case no application has been filed by the state transport undertaking for a permit in respect of any notified area or notified route (sic) subject to the condition that such permit shall cease to be effective on the issue of a permit to the state transport undertaking in respect of that area or route. therefore, so far as during the pendency of the draft scheme is concerned, there is no provision in the new motor vehicles act which prohibits the grant of such temporary permit to any other private operators. needless to say that after repeal of the motor vehicles act, 1939 all actions taken under the old motor vehicles act, 1939 are only saved so long as they were not inconsistent with the provisions of the motor vehicles act. 5988. by virtue of section 217 of the act of 1988 the act of 1988 will hold the field and not the act of 1939. therefore, by virtue of section 104 which only prohibits the grant of permits to private operators on any notified area or notified route. sub-section (3) of section 100 lays down that notified area or notified route will not become notified area or notified route unless the scheme is approved by the state government and the same is published in the official gazette and then only that route or area will be knwon as notified route or area. therefore, what is prohibited under section 104 is that no permit shall be granted on notified area or route. the route only becomes notified area or route if the scheme is finally approved by the state government and the same is published in the official gazette. till that time it remains as a scheme there is no prohibition on grant of permits to private operators. even the proviso to section 104 further lays down that even on the notified area or notified route if application for permit has not been made by the state transport undertaking then too also on such notified area or route a private operator can be permitted to ply but subject to the condition that such permit granted in favour of the private operator shall cease to be effective the moment the permit is issued to the state transport undertaking. therefore, the view taken by the state transport appellate tribunal that no permit can be granted on the route which is overlapped by a scheme route is not correct.8. the state transport appellate tribunal has heavily relied upon the decision of their lordships of the supreme court given in the case of ram krishan verma (supra). but that case does not afford any assistance so far as the decision of this writ petition is concerned. what it has laid down is that the draft scheme under section 68c and approved under section 68d of chapter iva of the repealed act (chapter vi of the act) is a law and once it becomes law after the scheme is finalised under section 68 d then the prohibition comes into play and the r.t.a. is prohibited from granting any permit to any other opersons other than the state transport undertaking. under the new motor vehicles act as stated above the prohibition is only contained in section 104 and not in any other provision. this aspect was not considered by the apex court because the matter was argued under the old motor vehicles act. the question before the hon'ble supreme court is that whether under the new motor vehicles act the permit can be granted to private operators or not till the scheme is finalised. therefore, the observations of the hon'ble supreme court were in relation to the provisions of the motor vehicles act, 1939 and not with reference to the motor vehicles act, 1988. thus, the learned state transport appellate tribunal has completely misunderstood the import of that decision while deciding this case here, the question is that when the draft scheme has been published and it has not been finalised then in that case whether a permit can be granted to a private operator or not. therefore, in the present case, section 104 will be applicable and under section 104 of the motor vehicles act, 1988 what is prohibited is grant of ^ permit on a notified area or notified route. the act of 1988 has gone a step further that even on a notified route a permit can be granted to private operator if the state transport undertaking has not applied for permit. that shows that the motor vehicles act, 1988 does not prohibit the grant of a permit on the route for which a scheme has been framed but it has not been finalised by the state government and the area or route or portion thereof has not been notified. therefore, the view taken by the state transport appellate tribunal does not appear to be well founded.9. incidentally, mr. munshi has also submitted that the respondent has filed a writ petition being s. b. civil writ petition no. 1817 of 1991 before this court for quashing the draft scheme and obtained a slay order restraining the respondent no. 2 from finalizing the scheme of the route udaipur-kelwara via iswal, lohsingh etc. therefore, he cannot be permitted to blow hot and cold in the same breath. i need not express any opinion on that part as the writ petition has been admitted and the same is pending. however, the view taken by the learned state transport appellate tribunal is not correct on this aspect.10. the seond reason given by the learned state transport appellate tribunal is that the petitioner has applied for a permit from udaipur to plasama route whereas the permit which has been granted to the petitioner is on udaipur to sayara. therefore,'by virtue of proviso to section 72 the grant is bad.11. i have gone through the record and from a perusal thereof it appears that the original route was udaipur to sayara but extended upto palasama. the application of the petitioner has been placed on the record as annexure 2 in which the petitioner has mentioned the route as udaipur to palasama via iswal, kelwara, bhanpura, saira and existing route. the permit which has been granted to the petitioner has been placed on the record as annexure 3 dated 6-7-1993 in which also the route has been mentioned as udaipur to sayara via dewali, liyo ka guda, feniyo ka guda, dhur, iswal, katar, kelwara, areth, bardara, dudhiya, bhanpura, thikoda extended upto palasama route. therefore, it is wrong to say that the petitioner has been granted permit from udaipur to sayara only. but a close reading of annexure 3 reveals that though the route is udaipur to sayara but it is extended upto palasama and mention of the route in the permit is very clear and it is wrong to say that the petitioner has applied for a permit on the route udaipur to sayara and not for the route extended upto palasama. in fact, the petitioner has applied for the route from udaipur to palasama and the permit has also been granted to the petitioner upto palasama though it was mentioned that it is udaipur to sayara but it was extended upto palasama which is clear from annexure 3. hence, this aspect has also been wrongly considered by the learned state transport appellate tribunal.12. hence, i allow the writ petition and quash the order dated 21-10-1993 (annexure 7) passed by the state transport appellate tribunal, rajasthan, jaipur.

Judgment:
ORDER

A.K. Mathur, J.

1. The petitioner by this writ petition has challenged the order dated 21-10-1993 passed by the State Transport Appellate Tribunal, Rajasthan, Jaipur.

2. In Udaipur Region, there is an existing route known as Udaipur-Sayara extended upto Palasama as shown in the rough sketch map, which has been placed on the record as Annex. 1. The petitioner submitted an application before the R.T.A., Udaipur for grant of a non-temporary stage carriage permit on the Udaipur to Sayara extended upto Palasma existing route via Iswal, Kelwada, Bhanpura, Sayara. The R.T.A. directed its Secretary for sending a Circulation note. The Secretary 'to the R.T.A., Udaipur in pursuance of the order of the R.T.A., Udaipur sent a Circulation note to the R.T.A., Udaipur which came to be considered by the authority on 13-7-1993. The R.T.A., Udaipur granted a non-temporary stage permit in favour of the petitioner on 13-7-1993. The petitioner in pursuance of the aforesaid grant made by the R.T.A., Udaipur availed the said non-temporary stage carriage permit on 24-7-1993 and started plying her vehicle on the route on 25-7-1993. The petitioner apprehended that this grant is likely to be challenged by some interested operators, therefore, he filed a caveat before the State Transport Appellate Tribunal, Rajasthan, Jaipur. The apprehension of the petitioner came true when the respondent No. 3 who is an operator of Udaipur-Kelwara route filed a revision petition on 16-8-1993 before the State Transport Appellate Tribunal against the grant made in favour of the petitioner. The matter was argued by both the learned counsel and ultimately after hearing both the parties the State Transport Appellate Tribunal vide its order dated 21-10-1993 set aside the grant on two grounds that under Section 68C of the Motor Vehicles Act, 1939 there is a draft scheme of Udaipur-Kelwara which overlaps the present route and scheme is law, therefore, no permit can be granted on this route which overlapse this draft scheme. Secondly it was held that the petitioner has been granted a permit on a route which was not applied for by the petitioner. On both these counts the State Transport Appellate Tribunal allowed the revision petition filed by the respondent No. 3 and set aside the grant made in favour of the petitioner. Aggrieved against this order of the State Transport Appellate Tribunal, the present writ petition has been filed by the petitioner. It is also pointed out by the, petitioner that the State Transport Appellate Tribunal in this connection heavily relied upon the decision of the Hon'ble Supreme Court delivered in the case of Rama Krishan Verma and etc. etc. v. State of U.P. and etc. etc., AIR 1992 SC 1888 : (1992 AIR SCW 2141) which is not applicable in the present case.

3. A reply has been filed by the respondent No. 3 and he has contested the position.

4. A rejoinder has also been filed by the petitioner.

5. Mr. Munshi, learned counsel for the petitioner, has pointed out that in respect of the route Udaipur-Kelwara a draft scheme was was published under Section 68C which is being overlapped by the Udaipur-Sayara extended upto Palasama route over which the petitioner was granted a non-temporary stage carriage permit by the R.T.A. and it is only a draft scheme. The provisions of Section 68F (1A), (1B), (1C) and (1D) as it existed in the Old Motor Vehicles Act, 1939 do not find mention in the New Motor Vehicles Act, 1988. Therefore, these provisions stood re-pealed and the State Transport Appellate Tribunal has committed a clear error in invoking those provisions in holding that since the scheme under Section 68C of the Act of 1939 is law, therefore, no non-temporary stage carriage permit can be granted on this route.

6. Mr. Vyas, learned counsel for the respondent. No. 3 has not disputed this position and submitted that it is true that the provisions of Section 68F(1A), (1B), (1C) and (1D) do not find mentioned in the New Motor Vehicles Act, 1988.

7. I think the submission of Mr. Munshi is correct. Prior to coming into force of the Motor Vehicles Act, 1988 there were provisions of Section 68F(1A), (1B), (1C) and (1D) and therein it was laid down that if any scheme has been published and if the State Transport Undertaking applies for a temporary permit in respect of the area or route of portion thereof then the R.T. A., if is satisfied that it is necessary to increase in the public interest, the number of vehicles operating in such area or route or portion thereof issue, the temporary permit prayed for by the State Transport Undertaking but that was not also subject to the condition that it shall not be effective if the scheme is published under Subsection (3) of Section 68D. Section 68F (1C) also provided that if no application for the temporary permit is applied for by the State Transport Undertaking under Sub-section (1 A) then it may be granted to any person on such terms and conditions which may think fit by the S.T.A. or the R.T.A., as the case may be. But it will be ceased to be effective on issue of a permit on the State Transport Undertaking in respect of that area or route or portion thereof. It is also provided that the moment the final scheme is published then such temporary permit shall automatically come to an end. But no such similar provisions regarding prohibition on grant of permit during the finalisation of the draft scheme appear in the New Motor Vehicles Act, 1988. Chapter VI which deals with the State Transport Undertaking only provides a restriction under Section 104 which says that where a scheme is published under Subsection (3) of Section 100 in respect of any notified area or notified route the State Transport Authority or the Regional Transport Authority, as the case may be, shall not grant any permit except in accordance with the provisions of the Scheme. The proviso also says that in case no application has been filed by the State Transport Undertaking for a permit in respect of any notified area or notified route (sic) subject to the condition that such permit shall cease to be effective on the issue of a permit to the State Transport Undertaking in respect of that area or route. Therefore, so far as during the pendency of the draft scheme is concerned, there is no provision in the New Motor Vehicles Act which prohibits the grant of such temporary permit to any other private operators. Needless to say that after repeal of the Motor Vehicles Act, 1939 all actions taken under the Old Motor Vehicles Act, 1939 are only saved so long as they were not inconsistent with the provisions of the Motor Vehicles Act. 5988. By virtue of Section 217 of the Act of 1988 the act of 1988 will hold the field and not the Act of 1939. Therefore, by virtue of Section 104 which only prohibits the grant of permits to private operators on any notified area or notified route. Sub-section (3) of Section 100 lays down that notified area or notified route will not become notified area or notified route unless the scheme is approved by the State Government and the same is published in the Official Gazette and then only that route or area will be knwon as notified route or area. Therefore, what is prohibited under Section 104 is that no permit shall be granted on notified area or route. The route only becomes notified area or route if the scheme is finally approved by the State Government and the same is published in the Official Gazette. Till that time it remains as a scheme there is no prohibition on grant of permits to private operators. Even the proviso to Section 104 further lays down that even on the notified area or notified route if application for permit has not been made by the State Transport Undertaking then too also on such notified area or route a private operator can be permitted to ply but subject to the condition that such permit granted in favour of the private operator shall cease to be effective the moment the permit is issued to the State Transport Undertaking. Therefore, the view taken by the State Transport Appellate Tribunal that no permit can be granted on the route which is overlapped by a scheme route is not correct.

8. The State Transport Appellate Tribunal has heavily relied upon the decision of their lordships of the Supreme Court given in the case of Ram Krishan Verma (supra). But that case does not afford any assistance so far as the decision of this writ petition is concerned. What it has laid down is that the Draft scheme under Section 68C and approved under Section 68D of Chapter IVA of the Repealed Act (Chapter VI of the Act) is a law and once it becomes law after the scheme is finalised under Section 68 D then the prohibition comes into play and the R.T.A. is prohibited from granting any permit to any other opersons other than the State Transport Undertaking. Under the New Motor Vehicles Act as stated above the prohibition is only contained in Section 104 and not in any other provision. This aspect was not considered by the Apex Court because the matter was argued under the old Motor Vehicles Act. The question before the Hon'ble Supreme Court is that whether under the New Motor Vehicles Act the permit can be granted to private operators or not till the scheme is finalised. Therefore, the observations of the Hon'ble Supreme Court were in relation to the provisions of the Motor Vehicles Act, 1939 and not with reference to the Motor Vehicles Act, 1988. Thus, the learned State Transport Appellate Tribunal has completely misunderstood the import of that decision while deciding this case Here, the question is that when the draft scheme has been published and it has not been finalised then in that case whether a permit can be granted to a private operator or not. Therefore, in the present case, Section 104 will be applicable and under Section 104 of the Motor Vehicles Act, 1988 what is prohibited is grant of ^ permit on a notified area or notified route. The Act of 1988 has gone a step further that even on a notified route a permit can be granted to private operator if the State Transport Undertaking has not applied for permit. That shows that the Motor Vehicles Act, 1988 does not prohibit the grant of a permit on the route for which a scheme has been framed but it has not been finalised by the State Government and the area or route or portion thereof has not been notified. Therefore, the view taken by the State Transport Appellate Tribunal does not appear to be well founded.

9. Incidentally, Mr. Munshi has also submitted that the respondent has filed a writ petition being S. B. Civil Writ Petition No. 1817 of 1991 before this Court for quashing the draft scheme and obtained a slay order restraining the respondent No. 2 from finalizing the scheme of the route Udaipur-Kelwara via Iswal, Lohsingh etc. Therefore, he cannot be permitted to blow hot and cold in the same breath. I need not express any opinion on that part as the writ petition has been admitted and the same is pending. However, the view taken by the learned State Transport Appellate Tribunal is not correct on this aspect.

10. The seond reason given by the learned State Transport Appellate Tribunal is that the petitioner has applied for a permit from Udaipur to Plasama route whereas the permit which has been granted to the petitioner is on Udaipur to Sayara. Therefore,'by virtue of proviso to Section 72 the grant is bad.

11. I have gone through the record and from a perusal thereof it appears that the original route was Udaipur to Sayara but extended upto Palasama. The application of the petitioner has been placed on the record as Annexure 2 in which the petitioner has mentioned the route as Udaipur to Palasama via Iswal, Kelwara, Bhanpura, Saira and existing route. The permit which has been granted to the petitioner has been placed on the record as Annexure 3 dated 6-7-1993 in which also the route has been mentioned as Udaipur to Sayara via Dewali, Liyo Ka Guda, Feniyo ka Guda, Dhur, Iswal, Katar, Kelwara, Areth, Bardara, Dudhiya, Bhanpura, Thikoda extended upto Palasama route. Therefore, it is wrong to say that the petitioner has been granted permit from Udaipur to Sayara only. But a close reading of Annexure 3 reveals that though the route is Udaipur to Sayara but it is extended upto Palasama and mention of the route in the permit is very clear and it is wrong to say that the petitioner has applied for a permit on the route Udaipur to Sayara and not for the route extended upto Palasama. In fact, the petitioner has applied for the route from Udaipur to Palasama and the permit has also been granted to the petitioner upto Palasama though it was mentioned that it is Udaipur to Sayara but it was extended upto Palasama which is clear from Annexure 3. Hence, this aspect has also been wrongly considered by the learned State Transport Appellate Tribunal.

12. Hence, I allow the writ petition and quash the order dated 21-10-1993 (Annexure 7) passed by the State Transport Appellate Tribunal, Rajasthan, Jaipur.