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R. Venkatesham Chetty Vs. Secretary Ksta - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 13683 of 1985
Judge
Reported inILR1987KAR77
ActsMotor Vehicle Act, 1939 - Sections 62, 68F(1A), 68F(1C) and 68F(1D)
AppellantR. Venkatesham Chetty
RespondentSecretary Ksta
Appellant AdvocateM.R.V. Achar, Adv.
Respondent AdvocateAbdul Khader, HCGP for R-1, ;G. Lingappa, Adv. for R-3
DispositionPetitoin allowed
Excerpt:
.....only on finding that there is need to increase number of services on the route included in the draft scheme. further, the duration of such permit is not confined to four months ; it may be four months or even less than four months. it all depends upon the approval of the draft scheme and the permits granted under the draft scheme. in some cases, as the experience goes, the temporary permit issued under section 68f(1a) of the act, remains in force for over a period of five years also. whereas the criteria for issuing temporary permit under section 62 of the act, is a specific temporary need or permanent need which is not met by issuing pucca stage carriage permit pursuant to the opening of the route. the duration of the permit is for four months ; therefore, it is not possible to hold..........and k.g.f. via nangili, mulabagal, andhra pradesh road transport corporation has published a draft scheme no. 8/81 in the andhra pradesh gazette extraordinary, dated 18-4-1981 pertaining to the route thirupathi to bangalore via chittoor, palamaner, nangali, mulbagal, kolar.2.2) there is also an agreement entered into between the state of karnataka and andhra pradesh under section 63 of the motor vehicles act, 1939 (hereinafter referred to as the 'act'). it is published in the gazette of both the states in the year 1975. a supplementary agreement is also entered into between two states and it is published in the gazette of both the states on 26th december, 1983. one of the routes included in the supplemental agreement is route no. 37 chittoor to k.g.f. via palamaner, nangli and.....
Judgment:
ORDER

K.A. Swami, J.

1. In this Petition under Articles 226 and 227 of the Constitution, the petitioner has sought for quashing the order dated 2-8-1985 passed by the 1st respondent in No. STA 6/ CS 83/85-86 (Annexure-E). He has also prayed for quashing the endorsement of countersignature bearing No. STA 6 CS 83/85-86 dated 2-7-1985 produced as Annexure-F.

2. The facts necessary to decide the contentions raised by both the sides, are as follows :

2.1) The petitioner is operating a stage carriage service on the route between Palamaner and K.G.F. via Nangili, Mulabagal, Andhra Pradesh Road Transport Corporation has published a Draft Scheme No. 8/81 in the Andhra Pradesh Gazette Extraordinary, dated 18-4-1981 pertaining to the route Thirupathi to Bangalore via Chittoor, Palamaner, Nangali, Mulbagal, Kolar.

2.2) There is also an agreement entered into between the State of Karnataka and Andhra Pradesh under Section 63 of the Motor Vehicles Act, 1939 (hereinafter referred to as the 'Act'). It is published in the Gazette of both the States in the year 1975. A supplementary Agreement is also entered into between two States and it is published in the Gazette of both the States on 26th December, 1983. One of the routes included in the supplemental agreement is route No. 37 Chittoor to K.G.F. via Palamaner, Nangli and Mulbagal to be operated by the State of Andhra Pradesh.

2.3) After publication of the aforesaid draft scheme, the Vice-Chairman and the Managing Director, Andhra Pradesh State Road Transport Corporation (for short, 'APSRTC') by the letter dated 3-7-1985 has requested the Joint Transport Commissioner and Secretary, State Transport Authority, Hyderabad, for grant of a temporary permit under Section 68F (1-A) read with Section 62 of the Act. The Joint Transport Commissioner by the order dated 30-7-1985 has granted the temporary permit under Section 68F (1-A) of the Act, on the aforesaid Route - Chittoor to K.G.F. via Nangli and Mulbagal, valid till the approval or modification of the Draft Scheme 8/81 under Section 68D of the Act, at single point tax to meet the increased traffic needs on the route in question. Pursuant to it, the permit is also issued as per Annexure-C. Thereafter, the 3rd respondent has made an application before the 1st respondent for grant of countersignature. The 1st respondent by the impugned order dated 2-7-1985 (Annexure-F) has granted the countersignature. It is the validity of this order which is challenged in this petition.

3. It is contended by Sri Achar, learned Counsel for the petitioner, that the route in respect of which the temporary permit under Section 68F (1-A) of the Act, is granted is not covered by the Draft Scheme 88/1; therefore, the permit under Section 68F (1A) of the Act, could not have been granted. Hence, it is submitted that the countersignature granted to such permit is invalid in law. It is also contended that the temporary permit issued under Section 68F (1-A) of the Act, is not required to be countersigned because it is issued under Chapter IV-A of the Act whereas the provisions of countersignature are found in Chapter IV of the Act; that the Secretary, Karnataka State Transport Authority has not been empowered under Rule 94 (2) of the Karnataka Motor Vehicles Rules, 1963 (hereinafter referred to as the 'Rules') to grant countersignature to the temporary permit issued under Section 68F (1-A) of the Act; therefore, the order granting counter signature is without jurisdiction; that the permit in question cannot at all be considered to be the one issued under Section 62 of the Act, because as per the order passed by the 2nd respondent, it is clear that the permit in question is granted under Section 68F (1-A) of the Act; that there cannot be any blending of the permit both under Section 68F (1-A) and Section 62 of the Act; that the timings assigned to the permit in question issued in favour of the 3rd respondent affect the service of the petitioner.

5. On the contrary, it is contended by Sri Lingappa, Learned Counsel for the 3rd respondent, that there is no bar in the Act for issuing a combined or composite permit both under Section 28F(1-A) and Section 62 of the Act ; that even though the Draft Scheme 8/81 is not operative in the State of Karnataka, nevertheless having regard to the Judgment of the Supreme Court in K. Venkamma v. The Govt. of Andhra Pradesh and Ors., : [1977]3SCR562 the permit granted under Section 68F (1-A) of the Act, on the inter-State Route is valid ; therefore, the 3rd respondent is entitled to have the counter-signature granted ; that it is not open to the petitioner to raise a contention which has a bearing on the validity of the primary permit granted by the 2nd respondent who is located beyond the jurisdiction of this Court ; that even if it is held that the Draft Scheme 8/81 is not operative beyond the State border of Andhra Pradesh, the route in question falls within the agreement referred to above and the permit is also granted within the agreement ; therefore the permit in question can even be construed to have been granted under Section 62 of the Act ; that whether the permit is issued under Section 68F(1A) or Section 48 of the Act, the counter-signature cannot at all be objected to by the operators on the route and it should be granted as a matter of course ; that the petitioner has no right to challenge the counter signature because the grant is made under the Agreement ; that if necessary, it is open to the countersigning authority to change or vary the conditions attached to the permit ; therefore, if it is found that the route is not covered by the Draft Scheme No. 8/81, the permit may be treated as the one issued under Section 62 of the Act, in respect of the route lying in the State of Karnataka ; that there can fee a permit covering both Sections 68F(1A) and 62 of the Act.

5. Having regard to the aforesaid contentions the points that arise for consideration are as follows :

I. Whether the permit in question is granted under Section 68F(1A) or Section 62 of the Act? or whether it can be deemed or construed to have been granted under both the provisions of the Act ?

II. If the permit in question is granted under Section 68F(1A) of the Act, whether it relates to the route covered by the Draft Scheme No. 8/81 of Andhra Pradesh State Transport Undertaking?

III. If permit does not cover the route included in the Draft Scheme No. 8/81, whether it is permissible to grant the countersignature to the permit which does not cover the route included in Draft Scheme No. 8/81?

IV. If the permit is granted under the Agreement, is it open to the operators on the route to object to the grant of counter-signature?

V. Whether a temporary permit under Section 68F(1A) of the Act, can be granted on the route - a portion of it is not covered by the route included in the Draft Scheme?

6.1. POTNT NO. I: The order granting primary permit passed by the joint Transport Commissioner and Secretary, State Transport Authority, Andhra Pradesh, Hyderabad, is produced as Annexure-B and the permit issued pursuant thereto as Annexure-C. On going through the same, it is clear that the permit is issued under Section 68F (1A) of the Act, with reference to the Draft Scheme No. 8/81 of Andhra Pradesh State Transport Undertaking. The duration of the permit is stated to be from 1-8-1985 till the approval or modification of the Draft Scheme No. 8/81. Thus the temporary permit is issued for an indefinite period. This does not conform to the duration of the temporary permit issued under Section 62 of the Act. Therefore, it is not possible to hold that the temporary permit in question is issued under Section 62 of the Act, it is issued under Section 68F (1A) of the Act.

6.2. The second part of point No. I as to whether the permit can also be construed as having been issued under both the provisions of the Act. In this regard, it is submitted by Sri G Lingappa, Learned Counsel for the 3rd Respondent, that the permit in so far it relates to a portion of the route from Chittoor to Mulbagal is concerned, it forms part of the route Tirupathi to Bangalore which is included in the Draft Scheme No. 8/81 and the remaining portion of the route from Mulbagal to K.G.F. is outside the Draft Scheme ; therefore the permit relating to this portion of the route must be construed as the one issued under Section 62 of the Act. Firstly, there is no basis for such a contention. The order granting the permit itself does not claim it to be so. Secondly, it is also not possible to hold that such a permit can be issued because the nature and scope of the permit issued under Section 68F (1A) of the Act, and the one issued under Section 62 of the Act, are quite different. Under Section 68F (1A) of the Act, a permit is issued only on finding that there is need to increase number of services on the route included in the Draft Scheme. (See : Abdul Basheer v. T. Veeranna, : AIR1984Kant84 ). Further the duration of such permit is not confined to four months ; it may be more than four months or even less than four months. It all depends upon the approval of the Draft Scheme and the permits granted under the Draft Scheme. In some cases, as the experience goes, the temporary permit issued under Section 68F (1A) of the Act, remains in force for over a period of five years also. Whereas, the criteria for issuing temporary permit under Section 62 of the Act, is a specific temporary need or permanent need which is not met by issuing pucca stage carriage permit pursuant to the opening of the route. The duration of the permit is for four months ; therefore, it is not possible to hold that there can be a combined or composite permit issued under Section 68F(1-A) and Section 62 of the Act. That being so, the permit in question cannot be construed to have been issued under both the aforesaid provisions of the Act.

6.3. Sri Lingappa, learned Counsel for the 3rd respondent, also submits that since there is an Agreement between the State of Andhra Pradesh and Karnataka, which includes the route Chittoor to K.G.F., in respect of which the temporary permit in question is granted to the 3rd Respondent as under the agreement it has to be operated by the State of Andhra Pradesh there is a permanent need established, and as that permanent need is not met by issuing a pucca stags carriage permit, such a need can be met by issuing a temporary permit, as held by the Supreme Court in M.P.S.R.T.C v. R.T.A Raipur., : [1965]57ITR415(SC) (SIC) No doubt, under the supplemental agreement dated 26th December, 1983 published in the official gazettes of both the States, Route No. 37 included in Annexure-B to the Agreement, is the very route i.e., Chittoor to K.G.F via Nangli, Mulbagal, in respect of which the temporary permit in question is issued under Section 68F (1-A) of the Act. In this regard, the contention of the petitioner is that under para 2 of the agreement temporary permits can be issued only on three occasions viz., Brahmotsava at Tirupathi, Shivarathri at Puttaparthy and Sreesailam ; Urs Shareef of Hazarath Khaja Bande Nawaz at Gulbarga, on the routes lying in the two States on single point taxation ; therefore, on no other occasion the temporary permit can be granted and that too the route in question does not in any way touch either Tirupathi, Puttaparthi, Sreesailam or Gulbarga. Therefore, no temporary permit can be granted under the Agreement. It is also further submitted that as a portion of the route is covered by the Draft Scheme, temporary permits under Section 62 of the Act, cannot at all be granted having regard to the provisions contained in Section 68F (1A) and Section 68F (1D) of the Act.

6.4. It is not possible to accept the contentions of the petitioner. Clause-2 of the agreement provides for giant of temporary permits on special occasions ; that too, in respect of certain routes touching Tirupathi, Puttaparthi, Sreesailam and Gulbarga ; and both the States can operate their stage carriage services on temporary permits on those occasions. The Agreement specifies the routes which are to be operated by each one of the States. Therefore, if in respect of any one of the routes included in the agreement, the pucca permit cannot be obtained for one reason or the other, traceable to the provisions or the Act and the Rules or by reason of the order of the Court or Transport Authority, it is open to the State which is entitled to operate on the route under the Agreement to seek temporary permit under Section 62 of the Act, as in such a case, the permanent need that is found established by reason of the agreement remains unserved. Therefore, in the circumstances stated by the Supreme Court in M.P.S.R.T.C. v. R.T.A. Raipur, it is open to obtain temporary permit if there are legal obstacles in obtaining Pucca permits or operating under the Pucca permit. In such a case, Section 68F (1A) and Section 68F (1D) of the Act, also cannot be held to come in the way as otherwise not only the very object of the Agreement would be defeated, the travelling public is also put to great inconvenience because they will be deprived of the benefit of public services. The grant of temporary permit under Section 68F (1A) of the Act is in respect of any area or route or portion thereof specified in the Draft Scheme and for the period intervening between the publication of the draft scheme and the date of publication of the approved or modified scheme and that too on being satisfied that it is necessary in the public interest to increase number of vehicles operating in such area or route or portion thereof, as the case may be. Whereas, temporary permit under Section 62 of the Act is granted on quite different grounds which are embodied in the Section itself and that too for the maximum period of four months only. What Section 68F (1D) prohibits is the grant of Pucca stage carriage permit and not the grant of a temporary stage carriage permit. The use of the expressions 'no permit shall be granted or renewed' occurring in Section 68F(1D) of the Act, make it clear that it is the grant of Pucca stage carriage permit that is prohibited. Otherwise, there was no need to use the expression 'renewed.' It is a pucca stage carriage permit that is renewed and not a temporary permit issued under Section 62 of the Act. Hence, I am of the opinion that grant of temporary permit under Section 62 of the Act, is not prohibited by Section 68F(1D) of the Act, on the route included in the Draft Scheme provided because of certain hurdles referable to the Act, or order of the Court or Transport Authority, it is not possible to grant temporary permit under Section 68F(1A) or (1C) of the Act, or operate the services even if such a permit is granted. Though the temporary permit in question cannot at all be construed to be the one issued under Section 62 of the Act, but nevertheless under the circumstances stated above, if any route covered by the agreement is not operated under the Pucca permit because of the fact that there are legal obstacles or hurdles referable to the provisions of the Act or order of the Court or Transport Authority, in obtaining Pucca permit, a temporary permit under Section 62 of the Act, can be obtained. Similarly if such a route i.e., the route included in the Agreement is also included in the draft scheme ; but it is not possible to grant temporary permit under Section 68F(1A) and 68F(1C) of the Act, because of the aforesaid reasons, a temporary permit under Section 62 of the Act, can be granted.

6.5. Thus, Point No. I is answered as follows :

(1) The permit in question has been granted under Section 68F(1A) of the Act.

(2) It cannot also be deemed or construed to have been granted under both the provisions of Section 68F(1A) and Section 62 of the Act.

(3) It is also not issued under Section 62 of the Act.

7. POINT NO. II: The route covered by the permit in question not only covers a portion of the route included in the Draft Scheme No. 8/81 but it also covers a portion which is outside the route included in the said scheme. Permit under Section 68F(1A) of the Act, can be granted only in respect of the route which Is included in a Draft scheme. Such a permit may even cover more than one route included in the draft scheme provided no portion of the route in respect of which a temporary permit under Section 68F(1A) or (1C) of the Act, is sought, lies outside the route or routes included in the draft scheme. For the application of Section 68F(1A) of the Act, the route mast be in conformity with the one or the other routes included in draft scheme. Therefore, it is also not possible to hold in the instant case that the temporary permit granted under Section 68F(1A) of the Act, holds good beyond Mulbagal. As far as the line of travel from Chittoor to Mulbagal is concerned, it is covered by the route Tirupathi to Bangalore included in the Draft Scheme. Hence, Point No. II is answered as follows :

Though the permit is issued under Section 68F(1A) of the Act, but it does not conform to the route covered by the Andhra Pradesh State Transport Undertaking Draft Scheme No. 8 of 1981. Therefore, it is not valid beyond Mulbagal upto Kolar.

8. POINT NO. III: In view of the fact that the permit in question does not hold good beyond Mulbagal and does not conform to the route included in the aforesaid Draft Scheme No. 8/81, the question of according countersignatureto it does not arise because the permit beyond Mulbagal is not valid. It is not valid, not only because of the fact that a portion of the route from Mulbagal to K.G.F. is not included in the Draft Scheme, but also because of the fact that the Draft Scheme No. 8/81 beyond the territory of the State of Andhra Pradesh is not operative as per the decision of a Division Bench of this Court, in D.P. Sharma v. KSTA and Ors., W.P. Nos. 3496 to 3498/1982 C/W 3489 and 3490/1979 DD 16-4-1984. Accordingly, Point No. III is answered in the negative.

9. POINT NO. IV : Even in the case of grant of permit under the agreement it Is open to the operators on the route to object to the grant of countersignature on the grounds other than non existence of need. Point No. IV is answered accordingly.

10. POINT NO. V : In view of the conclusion reached on Point Nos. I and II, Point No. V is also answered in the negative and against the 3rd respondent.

11. For the reasons stated above, the Writ Petition is allowed. The order dated 2-8-1985 passed by the first respondent in No. STA 6/SC 83/85-86 (Annexure-E) and the Endorsement of the countersignature bearing No. STA 6 CS 83/85-86 dated 2-7-1985 produced as Annexure-F, are hereby quashed.

12. Sri G. Lingappa, learned Counsel for the 3rd respondent submits that the 3rd respondent intends to take up the matter in appeal as the case involves questions of law, and as the 3rd respondent has been operating the services pursuant to the countersignature granted by the first respondent, the operation of the order just now pronounced may be stayed for a period of three weeks. Accordingly, the operation of this order is stayed for a period of three weeks.


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