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Mysore State Road Transport Corporation, by Its General Manager Bangalore and anr. Vs. Mysore Revenue Appellate Tribunal, Bangalore and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKarnataka High Court
Decided On
Case NumberW.P. Nos. 2496 of 1965 and 322, 379, 380, 549 and 714 of 1966.
Judge
Reported inAIR1968Kant1; AIR1968Mys1; ILR1967KAR563; (1967)1MysLJ148
ActsMotor Vehicles Act, 1939 - Sections 68C
AppellantMysore State Road Transport Corporation, by Its General Manager Bangalore and anr.
RespondentMysore Revenue Appellate Tribunal, Bangalore and ors.
Excerpt:
- indian registration act, 1908 sections 17 & 495: [d.v. shylendra kumar, j] partition palu patti though pali patti regarding earlier partition is not attracted by the provisions of the registration act, it is not admissible for want of sufficient stamp duty under section 34 of the karnataka stamp act. statutory provisions excludes admissibility of document and also affects transfer of interest under document. such an embargo cannot be got over by leading oral evidence to contrary. under the provisions of the evidence act, documentary evidence excludes oral evidence document having not been sought to be sustained by making good the deficit duty and paying the penalty cannot be admitted in evidence and cannot be relied upon. -- karnataka stamp act, 1957.[k.a. no. 34/1957]. section 34:.....govinda bhat, j.1. the question referred to the full bench is:'whether it is competent for the authorities under the motor vehicles act, 1939 to grant to a private operator, in respect of a route which overlaps any part of a notified route in an approved scheme, a permit (or renewal of a permit), subject to the condition that he should not pick up or set down passengers on the notified route?'.in order to answer the question, it is necessary to refer to the relevant provisions of the motor vehicles act, 1939, hereinafter called 'the act'. chapter iv-a was added by act 100 of 1956, to the act making special provisions for grant of monopoly of road transport service to state transport undertakings to the partial or complete exclusion of private operators.section 68c empowers any state.....
Judgment:

Govinda Bhat, J.

1. The question referred to the Full Bench is:

'Whether it is competent for the authorities under the Motor Vehicles Act, 1939 to grant to a private operator, in respect of a route which overlaps any part of a notified route in an approved scheme, a permit (or renewal of a permit), subject to the condition that he should not pick up or set down passengers on the notified route?'.

In order to answer the question, it is necessary to refer to the relevant provisions of the Motor Vehicles Act, 1939, hereinafter called 'the Act'. Chapter IV-A was added by Act 100 of 1956, to the Act making special provisions for grant of monopoly of road transport service to State Transport Undertakings to the partial or complete exclusion of private operators.

Section 68C empowers any State Transport Undertaking to frame a scheme of road transport service to be operated by it. The said section reads:

'Where any State Transport Undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the State Transport Undertaking may prepare a Scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct.'

The State Government may approve or modify the Scheme, after consideration of objections and representations and the Scheme as approved when published in the Official Gazette becomes final (Sec 68D). The approved Scheme may be canceled or modified by the State Transport Undertaking after following the procedure laid down in Section 68C and Section 68D so far as it can be made applicable (Section 68E)

(2) The approved Scheme has to be given effect to in the manner provided by Section 68F, which reads:

'(1) Where, in pursuance of an approved scheme any State Transport Undertaking applies in the manner specified in Chapter IV for a stage carriage permit or a public carrier's permit or a contract carriage permit in respect of a notified area or notified route, the Regional Transport Authority shall issue such permit to the State Transport Undertaking, notwithstanding anything to the contrary contained in Chapter IV.

(2) For the purpose of giving effect to the approved scheme in respect of a notified area or notified route, the Regional Transport Authority may, by order,--

(a) refuse to entertain any application for the renewal of any other permit;

(b) cancel any existing permit;

(c) modify the terms of any existing permit so as to-

(i) render the permit ineffective beyond a specified date;

(ii) reduce the number of vehicles authorized to be used under the permit;

(iii) curtail the area or route covered by the permit in so far as such permit relates to the notified area

or notified route.

(3) for the removal of doubts, it is hereby declared that no appeal shall lie against any action taken, or order passed, by the Regional Transport Authority under sub-section (1) or sub-section (2)'

Section 68B provides that the provisions of Chapter IV-A and the Rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV (for any other law)

(3) When the State Transport Undertaking makes an application for a permit in the manner specified in Chapter IV, in respect of a notified area or notified route, the Regional Transport Authority has no option but to issue the permit asked for As indicated by the opening words of sub-section (2) of Section 68F, the Regional Transport authority is required to give effect to the approved Scheme; it may refuse to entertain an application for renewal of another permit, and in the case of existing permits, cancel or modify the same, as the provisions of the Scheme may require. Clauses (a), (b) and (c) of sub-section (2) indicate the nature of the action which the Regional Transport Authority may take for giving effect to the approved Scheme.

An approved Scheme under Chapter IV-A is law; where any action taken under sub-sections (1) and (2) of Section 68F by the Regional Transport Authority flows from the Scheme such action or order made is not of a quasi judicial character, but is ministerial Vide Samarth Transport Co. (P) Ltd. v Regional Transport Authority, Nagpur, : [1961]1SCR631 , Abdul Gaffoor v State of Mysore : [1962]1SCR909 .

(4) The effect of an approved Scheme which grants monopoly to the State Transport Undertaking excluding private operators completely in relation to any area or route is, that no private operator is entitled to operate on any part or sector of the notified area or route after the Scheme is brought into operation.

In C.P.C. Motor Service v. State of Mysore : AIR1966SC1661 , the validity of the Mysore Scheme as approved by the State Government was challenged, on various grounds. By the said Scheme, all routes within the Mysore District were reserved for exclusive operation by the State Transport Undertaking. The petitioner therein was operating on inter-district routes part of which lay in the Mysore District. It was contended that the inter-district routes for which the petitioner held permits were not affected by the Scheme.

While rejecting that contention, the Supreme Court observed:

'The exclusive operation of routes within the District meant that no other omnibus belonging to a private operator could run on that sector. The direction, therefore, clearly said that the route left to the private operators would be open to them beyond the borders of the District, but they were excluded from that portion of the route which lay within the District'.....'

xx xx xx xx

'The scheme of the Act in S. 68F(2)(c)(iii) also shows that the Regional Transport Authority, in giving effect to the approved scheme, may 'curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route.' This makes the route or area stand for the road on which the omnibuses run or portions there of, and 'in view of the fact that the scheme reserved all the routes within the Mysore District to the State Transport Undertaking, even those routes which were inter-District open to the private operators would stand pro tanto cut down to only that portion which lies outside the Mysore District.' The result, therefore, is that no distinction can be made between the notification of a portion of the route of the private operators lying within the Mysore district and the notification of a different route, in which the portion within the Mysore District is also included.'

(Underlining (here into ' ') is ours)

In Nilkanth Prasad v. State of Bihar, : AIR1962SC1135 , the route Gaya to Khijirsarai was notified was notified under a Scheme framed under Section 68C for exclusive operation by the State Transport Undertaking. The notified route framed part of the routes on which the appellants before the Supreme Court were operating their omnibuses and in respect of which, they asked for renewal of their permits. The Regional Transport Authority renewed the permits taking the view that the route Gaya to Khijirsarai, which was a notified route, was different from the routes for which renewal was demanded. The Appeal Board of the State Transport Authority set aside the renewals, which order was challenged before the Patna High Court. The High Court having dismissed the write petitions, the matter came up before the Supreme Court. The contention of the appellants that their routes which overlapped a part of the notified route were different routes was rejected by the Supreme Court.

After referring to the decision in : [1962]1SCR909 the Supreme Court stated as to what is the effect of an approved Scheme on the private operators; it was laid down therein that when a Scheme has been notified under Chapter IV-A and an application is made for grant of permit to a private operator on a route notified under the Scheme, the Regional Transport Authority has no option but to refuse the permit asked for and consequent if the State Transport Undertaking had already been granted a permit over a route Gaya to Khijirsarai (notified route), the appellants were not entitled in law to the renewal of their permits which embraced also the route Gaya to Khijirsarai, and the Regional Transport Authority was incompetent to renew the permits over the route overlapping the notified route Gaya to Khijirsarai. The argument that where the Scheme notifies as a route, a part of a larger route operated by a private operator, the two routes must be regarded as different and the private operator cannot be prevented from running his omnibuses on that portion of his route which is a different route, although notified was rejected.

The legal effect of an approved Scheme on the right of private operators to operate on a notified route has been put in this way:

'Under Section 68C it is provided that a scheme may notify a route or an area or a portion of a route or a portion of an area, and the exclusion of the private operators from the whole route or the whole area or a part of the route or a part of that area, as the case may be, may be either complete or partial, and under S. 68F(2)(c)(iii) the Regional Transport Authority may modify the terms of any existing permit so as to 'curtail the area or route covered by the permit, in so far as such permit relates to the notified area or notified route.' This means that even in those cases where the notified route and the route applied for run over a common sector, the curtailment by virtue of the notified scheme would be by excluding that portion of the route or, in other words, the 'road' common to both. The distinction between 'route' as the notional line and 'road' as the physical track disappears in the working of Chap IV-A, because you cannot curtail the route without curtailing a portion of the road, and ruling of the Court to which we have referred, would also show that even if the route was different, the area at least would be the same. The ruling of the Judicial Committee cannot be made applicable to the Motor Vehicles Act, particularly Chap. IV-A, where 'the intention is to exclude private operators completely from running over certain sectors or routes vested in State Transport Undertakings. In our opinion, therefore, the appellants were rightly held to be disentitled to run over those portions of their routes which were notified as part of the scheme. Those portions cannot be said to be different routes, but must be regarded as portions of the routes of the private operators from which the private operators stood excluded under S 68F(2)(c)(iii) of the Act.' The decision under appeal was, therefore, correct in all the circumstances of the case.'

(Underlining (here into ' ') is ours.)

In the Schemes approved by the Rajasthan Government, which came up for consideration before the Supreme Court in Ramnath Varma v. State of Rajasthan : [1963]2SCR152 , the exclusion of private operators was not complete but partial only. The Schemes in question provided for partial exclusion of private operators by the method of what was styled as making the permit ineffective for the overlapping part by forbidding the private operators to pick up passengers on the overlapping part for destinations within therein.

The Schemes were challenged on two grounds viz., (1) a provision as the one in question for making the scheme ineffective cannot be done under the Act, and (2) it violated Art. 14 of the Constitution. Both the grounds were rejected and in dealing with the said contentions, the Supreme Court stated:-

'Besides this main objection, three subsidiary points have been raised on behalf of the appellants. It appears that in some cases the objectors served routes which overlapped the three routes which have been taken over. In these cases, what has been done is that in some cases the permits of the objectors have been canceled with respect to the overlapping part of the routes while in other cases the objectors are allowed to ply even on the overlapping part but they have been forbidden to pick up passengers on the overlapping part. This latter method is called making the permits ineffective for the overlapping part. Now the grievance of those whose permits have thus been rendered ineffective for the overlapping part is two-fold. In the first place, it is said that this cannot be done and in the second place, it is said that even if this can be done, the result is that those whose permits have been made ineffective for the overlapping part will not be entitled to compensation under S 68G read with S. 68F(2). So far as the first contention is concerned, we are of opinion that there is no force in it. Under S. 68C, it is open to frame a scheme in which there is a partial exclusion of private operators. Making the permits ineffective for the overlapping part only amount to partial exclusion of the private operators from that route. In the circumstances an order making the permit ineffective for the overlapping part would be justified under S. 68C. As to the second point, there is no doubt that where the permit is made ineffective the permit holder will not be entitled to any compensation under S. 68G. It is said that this amounts to discrimination between those whose permits have been canceled for the overlapping part and who would get compensation and those whose permits have been made ineffective and who would therefore not get compensation. Now we should have thought that the making of the permit ineffective for the overlapping part of the route and allowing the permit holder to pick up passengers on the overlapping route for destinations beyond that portion of the route would be to the advantage of the permit-holder. In any case, if any permit-holder feels that he would rather have his permit canceled for the overlapping route and get compensation it is for him to raise that objection before the State Government or the officer hearing objections. If he does not do so, he cannot be heard to say that there is discrimination because his permit has been rendered ineffective and he gets no compensation, for it may very well be that he is still better off than the person whose permit has been canceled for the overlapping part of the route. In any case unless facts are brought on the record which would show that in spite of the advantage which the permit-holder, whose permit has been made ineffective for the overlapping part of the route, gets by picking up passengers on the overlapping route for destinations beyond that part is not equal to the compensation which he would get in case his permit is canceled for the overlapping part of the route, there would be no case for discrimination under Art. 14 of the Constitution. In the present appeals no such case has been made out on the facts and therefore we must reject this argument based upon discrimination.'

It is relevant to state that in Ramnath Varma's case : [1963]2SCR152 , the Scheme itself made provision for making the permits of the private operators ineffective for the overlapping part in relation to the notified routes; the method of making the Scheme ineffective was also provided in the Scheme by forbidding the private operators from picking up passengers on their overlapping part for destinations within that part. The said decision is authority for the proposition that making the permits of private operators ineffective for the overlapping part only, amounts to partial exclusion of private operators from the notified route, and that under Section 68C it is competent to make such provision. When the Scheme makes provision for partial exclusion of private operators and the method of partial exclusion is provided in the Scheme itself, as in Ramnath Varma's case, : [1963]2SCR152 the Regional Transport Authority in giving effect to that Scheme, may, under Section 68F(2), render ineffective the existing permits, in respect of the overlapping part, by forbidding the picking up or setting down of passengers within that part. (Vide Webster's case in W.P. 73 of 1963 of Supreme Court). Further, as long as it is not inconsistent with the provisions of such a Scheme, the Regional Transport authority, may (under Chapter IV) also renew or grant permits but rendering them ineffective in respect of the overlapping part-(the power to do so being implicit in the power to grant under S. 48 (1)).

(5) Difficulty, however arises where on a true construction of the provisions of the Scheme, it is manifest that the intention of the Scheme is not to completely exclude private operators in relation to the notified area or notified route, but the method of partial exclusion is not provided in the Scheme itself. It is very much desirable that a Scheme under Section 68C should include the mode of partial exclusion where it is not intended to completely exclude other operators in relation to overlapping parts of notified routes.

(6) When the Anekal Pocket Scheme was brought into operation, one Webster had a stage carriage permit valid up to 31-3-1961 for the route Bangalore to Kolar via Whitefield and Hosakote. Webster's route overlapped a notified route under the said Scheme. In order to give effect to the Scheme. Webster's permit was modified by rendering it ineffective overlapping part by forbidding him from picking up or setting down passengers over the overlapping part. After the expiry of its term, the permit was renewed subject to the same conditions. Webster then challenged the order of rendering his permit ineffective in W. P. No. 73 of 1963 (SC) under Article 32 of the Constitution on the ground that it abridged his fundamental right to carry on business. That petition was dismissed by the supreme Court holding that once a Scheme is approved, it is immune from attack that it infringes the fundamental rights of the operators under Art. 19(1)(g).

The Supreme Court observed that by the said Scheme the right of the operators claiming permit on the notified routes is restricted and the Regional Transport Authority is authorised for giving effect to that restriction to modify existing permit under Section 68F (2)(c). The condition imposed on Webster's permit by the Regional Transport Authority rendering the permit ineffective over the overlapping part was considered as one falling within the scope of Section 68F(2)(c). No question, however, arose directly for decision in what case whether the Scheme provided for exclusive operation by the State Transport Undertaking on the notified routes or it was one of partial exclusion.

(7) In W.P. 680 of 1962 before this court decided on 8-10-1966 (Mys) by Hegde and Ahmed Ali Khan JJ an application for permit on the route Banglore to Chintamani was rejected by the Regional Transport Authority, one of the grounds being that the route in question was included in the Anekal Scheme. This court allowed the write petition holding that the Anekal Scheme is not in respect of an area but in respect of certain route Banglore to Chintamani is not included in the said Scheme and the Regional Transport Authority was in error in thinking that the Anekal Scheme precluded consideration of the application for permit. The said decision is based on the assumption that the route Bangalore to Chintamani is not a notified route under the Anekal Scheme.

(8) In W. P. 544 of 1963 decided on 22-6-66 (Mys) by Hegde and Honniah JJ an application for renewal of permit on the route Varthur to Bangalore had been rejected by the Regional Transport Authority on the ground that the route sought for was part of the notified route, and therefore, the application could not be entertained and that order was challenged in the writ petition, which was dismissed. Hegde J. who delivered the judgment of the Bench said:

'Once it is held that the route from Bangalore to Anekal is a nationalised route that means that route from Bangalore to every intermediary point on that route is also nationalised. It is a portion of the nationalised route. Otherwise, the nationalisation scheme will become purposeless.'

(9) The question as the one referred to the Full Bench for opinion directly arose for consideration in W.P. Nos. 2202 of 1963 and 2287 of 1963 (Mys) before this court. When the petitioner in W. P. 2202 of 1963 (Mys) applied for renewal of permit for the route Kunigal to Bangalore which partly overlapped a notified route under the Bangalore Scheme over an extent of about four miles, the State Transport Undertaking objected and over-ruling that objection, the Regional Transport Authority granted renewal with the condition that the operator should not pick up or set down any passengers on notified sector of the routes on his to and fro journeys. The State Transport Appellate Tribunal set aside the order of the Regional Transport Authority, which order was challenged before this court.

The argument of the counsel for the State Transport Corporation, the respondent in the said writ petition, was that the Bangalore Scheme provided for complete exclusion of private operators and consequently, the method of making the permit ineffective for the overlapping part was not permissible. Tukol and Santhosh JJ. who heard the matter did not decide the question whether the Bangalore Scheme provided for complete or partial exclusion of private operators. After referring to the decisions of the Supreme Court in Nilkanth Prasad's case : AIR1962SC1135 and Ramnath Varma's case, : [1963]2SCR152 , the learned Judges were of the view that the decision in Nilkanth Prasad's case : AIR1962SC1135 , was inapplicable to the facts of the case but Ramnath Varma's case : [1963]2SCR152 was applicable and therefore, they held that the imposition of condition by the Regional Transport Authority rendering the permit ineffective over the overlapping part falls within the scope of Section 68F(2)(c)(iii).

In the course of the judgment, this is what Tukol J. (One of us), who delivered the judgment of the Bench, stated:

'Now we have to see whether the order passed by the Regional Transport Authority was illegal so as to enable respondent No.1 to interfere with that order Section 68F(2)(c)(iii) provides that for the purpose of giving effect to the approved scheme in respect of a notified area or notified route, the Regional Transport Authority may, by order, curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route. We have already indicated that the condition imposed by the Regional Transport Authority in the resolution is to the effect that the applicant should not pick up or set down any passengers on the notified sector of the route from Kunigal to Talekere hand-post. The effect of this condition is that even though the petitioner's bus plies over the route, the petitioner is prohibited from picking up passengers on any point of this sector. 'Such curtailment of the right of the petitioner legally amounts to curtailment of an area or route covered by the permit, because so far as the notified area is concerned, namely, the sector from Kunigal to Talekere handpost, the petitioner's permit is ineffective, and he cannot pick up passengers, either while going to Kunigal or starting from Kunigal to any area up to Talekere handpost. Mr. Sadanandaswamy appearing for respondent 2 submitted that such curtailment would not be legal unless the scheme prepared under section 68C of the Act provided for partial or whole exclusion of any area or route.' Section 68C defines the scope for the preparation of a scheme regard being had to the basic principle that the scheme should be made with the object of providing efficient, adequate, economical and properly coordinated road transport of the particular class of service which the scheme could include, and can be in relation to any area or route or portion thereof. The Supreme Court has laid down that so far as the relevant sections of this Act are concerned, no distinction has been made between 'route' and 'area', the two terms being interchangeable. The opening words of section 68F(2) clearly indicate that what the Regional Transport Authority has to do under the various clauses of that section is intended for the purpose of giving effect to the approved scheme. Therefore, 'when an application for a permit or for renewal of a permit comes up before the Regional Transport Authority for consideration, it has to consider what is the scope of the nationalised route or the area. It has also to consider the prayer made in the application for permit or renewal of permit. It has then to find out whether any portion of the route for which the application is made falls within the notified route or area. If it finds that any portion falls in the notified area or the route, then it has to exercise its powers defined by Sub-section (2) of Section 68F and mould its order in such a way that the permit or the renewal granted by it, does not in any way interfere with the nationalised route'. That the imposition of such restriction as the instant one falls well within the scope of the authority conferred on it is clarified by the decision of the Supreme Court in Civil Appeals Nos. 142 to 146 of 1962 : [1963]2SCR152 in which the judgment was rendered on 17th April 1962.'

x x x x

'As regards this legal position enunciated by their Lordships, Mr. Sadanandaswamy's submission is that these observations are applicable only to those schemes which make provision for partial exclusion of private operators. 'As we have stated above, Section 68F is intended to meet the difficulties created by nationalisation of routes partially or wholly, where certain routes which are nationalised overlap routes on which private operators can legally be permitted to run their vehicles. Section 68F provides for safeguarding the interest of the nationalised undertaking. The incidental object is to safeguard the convenience of the public without requiring them to change vehicles or wait for vehicles at unreasonable or inconvenience positions. It is not seriously disputed that this Talekere hand post is not one of the stations in any of these routes. It is merely a cross where two roads meet and therefore, if, without affecting the interest of the nationalised undertaking, the Regional Transport Authority modifies the terms of the permit which is sought to be renewed, we do not see that there could be violation of either of the provisions of Section 68F or Section 68C'. In fact, Section 68C has nothing to do with the grant of permit. It only deals with the framing and preparation of the scheme. Section 68F is more or less a consequential section requiring the Regional Transport Authority to mould its orders and the issue of permits so as not to come in conflict with the approved Scheme.'

(Underlining (here into ' ') is ours)

(10) In W. P. No 2287 of 1963 (Mys), decided by Pai and Iyengar JJ. subsequent to the decision in W.P. No. 2202 of 1963 (Mys), the earlier Bench decision was not noticed. The petitioner in W.P. No. 2287 of 1963 (Mys) had applied for three inter-state route permits with one of the termini in Hassan District and others in Kerala State. Upholding the objections of the State Road Transport Corporation that part of the routes applied for overlapped routes covered by the Hassan Scheme, the Regional Transport Authority rejected the applications. The said orders were challenged in the writ petition. It was urged on behalf of the petitioner therein before this court, that the Regional Transport Authority could have imposed a condition making the permit ineffective over the overlapping portion of the notified route by forbidding the picking up or setting down of passengers at any point on the notified portion of the routes.

Rejecting the said contention, Pai J. who delivered the judgment of the Bench said:

'The answer to the question whether an application for permit in respect of a specified route should be granted as a whole or in part or with modifications depends upon the nature and extent of the exclusion of private operators brought about by an approved scheme.'

(Underlining (here into ' ') is ours.)

The decisions of the Supreme Court in Nilkanth Prasad's case : AIR1962SC1135 and Ramnath Varma's case : [1963]2SCR152 were referred to and the learned Judges noticed that in Ramnath Varma's case : [1963]2SCR152 , the Scheme itself made provision for rendering the permits of the private operators ineffective by forbidding them from picking up or setting down passengers over the overlapping part of the notified routes, and therefore, the Scheme concerned in Ramnath Varma's case : [1963]2SCR152 provided for partial exclusion of private operators and not for total exclusion. It was observed that where the scheme provides for complete exclusion 'if the Regional Transport Authority is competent to proceed on the lines suggested viz., making the permit ineffective over the notified portion of the route, the result would be that the private operators would be permitted to trench upon the monopoly created by the scheme which the Regional Transport Authority has no jurisdiction whatever to do.'

(11) There is no provision in Chapter IV-A providing for grant or renewal of permits to private operators. Section 68F(1) provides for grant of applications by the State Transport undertaking; Sub-section (2) provides what action may be taken by the Regional Transport Authority in regard to the existing permits, in order to give effect to the provisions of the Scheme. Whether the Regional Transport Authority modifies unexpired permits or refuses to entertain applications for renewal of expired permits, such action is in relation to existing permits.

In : [1961]1SCR631 the Supreme Court has stated:

'The power under sub-section (2) is exercisable when it is brought to the notice of the authority that there is an approved Scheme and to give effect to it, the application for renewal cannot be entertained

x x x x x x

The word 'entertain' may mean 'to receive on file or keep on file', and in that sense the Authority may refuse to keep an applicant on its file by rejecting it either at the time it is filed or thereafter. It does not cannot any time by only describes the scope of the duty under that clause 'It can only mean that the Authority cannot dispose of the application on merits but can reject' it as not maintainable.'

Section 68F(2) does not refer to a new application for a permit. The source of the power to grant to renew a permit to a private operator is found in the provisions of Chapter IV. Section 48(1) states that subject to the provisions of section 47, the Regional Transport Authority may, on an application made to it under section 46, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such permit. The ambit of that power is however overridden by the provisions of the approved Scheme where the route applied for relates to a notified area or route. While exercising the power conferred under Section 48 for grant of permits or under section 58 for its renewal, the Authority cannot do anything which would have the effect of modifying an approved Scheme: the Authority may impose any conditions on a permit provided such conditions do not have the effect of rendering the Scheme ineffective to any extent.

(12) The rights of private operators to ply their omnibus in relation to a notified area or route are abridged to the extent of their exclusion under the Scheme concerned; if the exclusion is complete, there is total deprivation of the right and if the exclusion is partial, there is partial deprivation only. Thus, the rights of the private operators are co-related to the extent of their exclusion provided under the particular Scheme. Therefore, where an application for permit (or renewal of permit) is in respect of an overlapping part of a notified area or notified route, the power of the Regional Transport Authority under the Act to grant or renew the permit in accordance with the application (or with such modifications as it deems fit), is overridden by the Scheme to the extent of the exclusion thereunder of the private operators.

If the Authority is of the opinion that the Scheme provides for complete exclusion of private operators from a notified route, then the Authority has no further jurisdiction to grant or renew a permit to ply on that route; a permit with a condition rendering it ineffective also cannot be granted since that may in effect amount to modifying the Scheme. But, if on a construction of the Scheme as a whole, it is reasonable for the Authority to infer that the intention of the Scheme is only to exclude private operators partially from overlapping portions of notified routes, then the Authority has jurisdiction under Section 48 to grant or renew a permit with any restriction consistent with the provisions of the Scheme including that of rendering the permit ineffective by forbidding a private operator from picking up or setting down passengers over the notified part of the route.

(13) Our answer to the question referred to the Full Bench is:

(1) Whether it is competent for the authorities under the Motor Vehicles Act, to grant to a private operator, in respect of a route which overlaps any part of a notified route which overlaps any part of a notified route in an approved Scheme a permit (or renewal of a permit) subject to the condition that he should not pick up or set down passengers on the notified route, depends upon the nature and extent of the exclusion of private operators brought about by a Scheme.

(2) If the approved Scheme is construed as one providing for complete or total inclusion of private operators from the notified area or route, the authorities under the Act have no jurisdiction to grant them a permit even with the restriction t grant them a permit even with the restriction of making it ineffective in respect of the overlapping part of the notified area or route.

(3) Where the approved Scheme does not exclude private operators completely and the manner of partial exclusion is also incorporated in the Scheme itself, any grant or renewal of permit by the Authorities under the Act to a private operator in respect of a notified route should conform to the said provision for partial exclusion.

(4) Where, though the approved Scheme does not make an express provision for the manner of partial exclusion, but it is clear that the Scheme does not intend to totally exclude private operators from the notified routes, the Authorities under the Act may grant or renew permits rendering them ineffective in respect of the overlapping parts, provided the Authorities are satisfied that by grant or renewal the Scheme will not be impaired.

(14) Reference answered accordingly


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