K. A. Swami, J.
1. At the stage of preliminary hearing, Learned High Court Government Pleader was directed to take notice for respondent No. 1. Accordingly, Sri B, N. Venugopal, Learned Government Pleader has put in appearance for the Regional Transport Authority, Mangnlore.
2. There is an application filed by Sri M. Sathish Punja for being impleaded as additional respondent in the petition on the ground that he has been granted temporary permit on the route in question. Learned Counsel for the petitioner has no objection to allow the application. As the applicant is going to be affected on consideration of the prayer made by the petitioner, he is entitled to come on record. Accordingly, T A. No. 1 is allowed. The applicant is permitted to come on record as respondent No. 2. Cause title be amended.
3. The first respondent, by the resolution dated 20th October, 1984 passed in Subject No. 122/84-85, produced as Annexure-B, has made a determination under Section 47(3) of the Motor Vehicles Act (hereinafter referred to as the 'Act'), for opening the route from B. C. Road to Mangalore and back via Pane Mangalore, Mudipu, Konaje, Derlakatte, Mangalore. Thereafter, the first respondent has also allowed the application filed by the 2nd respondent for grant of temporary stage carriage permit on the said route. The validity of this permit is thesubject matter of the other Writ Petition No. 63 of 1985.
4. The contention of Sri M. Rangaswamy, Learned Counsel for the petitioner, is that B.C. Road toPane Mangalore overlaps several notified routes included in Mangalore. Approved Scheme, which is a scheme of total exclusion. That it is a scheme of total exclusion is not disputed either by Learned Government Pleader Sri B.N. Venugopal, or SriA.S. Vishwanath, Learned Counsel for the 2nd respondent. From the impugned resolution, it is clear that the firstrespondent has not considered whether the route in respect of which the determination is made under Section 47(3) of the Act, overlaps any portion of the notified route/s included in the Mangalore Approved Scheme as contained in theNotification dated 18th March, 1967 published in the Karnataka Gazette of the same date bearing S.O. No. 498. For the purpose of determination under Section 47(3) of the Act, it is also necessary to take into accountthe scheme that covers the area or the route proposed to be opened. Where the route proposed to be opened overlaps the notified route included in the scheme of total exclusion, the R.T.A: will not have jurisdiction to grant fresh stage carriage permit. In such a case, no purpose is served by opening the route.
5. In the instant case, the R. T. A. has not taken into consideration the aforesaid Mangalore Approved Scheme and its effect on the power of the R.T.A. to open the route and grant permits. Section 68B of the Act, specifically provides that the provisions of Chapter IVA of the Act and the Rules and orders made thereunder shall have effect-notwithstanding anything inconsistent therewith contained in Chapter IV of the Act or in any other law for the time being in force or in any instrument having effect by virtue of any such law. Thus, the provisions of Chapter IVA of the Act prevail over the provisions contained in Chapter-IV of the Act. Section 47 of the Act is found in Chapter-IV of the Act. The Scheme published under Chapter IVA of the Act, is law and the Transport Authorities functioning in the State under the Act, are bound to enforce it and it is, not permissible for them to grant any permit in respect of any notified area or notified route except in accordance with the provisions of the Scheme. (See: Section 68FF of the Act). No doubt, the Supreme Court in.Mohd. Ibrahim - v. -S. T. A. Tribunal, : 1SCR474 , Madras has laid down in unequivocal terms that the Regional Transport Authority is not obliged to hear the operators while exercising jurisdiction under Section 47(3) of the Act, in fixing the limit of number of stage carriage permits. It has also been further observed that the limit of number of stage carriage permits fixed by the Regional Transport Authority under Section 47 (3) of theAct. cannot be modified by the Regional Transport Authority when the said Authority exercises the separate power of granting permits under Section 48 of the Act, or even by the State Appellate Transport Authority dealing with appeals against the grant of permits. But, the R. T. A. will not be committing any illegality or impropriety if it hears the State Transport Undertaking in respect of the routes it proposes to open and the same are likely to overlap the notified routes or the notified area, included in the scheme of total exclusion. In such a case, if the State Transport Under-taking is heard at that stage, the R. T. A. will have a clear picture as to whether the routes or route it proposes to open under Section 47(3) of the Act, overlap/s the notified route/s included in the schema of total exclusion. Thus, it will not only enable the R, T. A. to come to a right conclusion ; but it also helps the R. T. A. to enforce and act in accordance with the provisions of the scheme which it is statutorily bound to do.
6. For the reasons stated above, the Writ Petition is allowed. The resolution dated 20th October, 1984 passed by the 1st respondent in Subject-matter No. 122/84-85 is hereby quashed. The matter now stands remitted to the 1st respondent. It is open to the 1st respondent to hear the petitioner and decide the same in accordance with law and in the light of the observations made in this order.