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Andhra Pradesh State Road Transport Corporation, Hyderabad Vs. State Transport Appellate Tribunal, Hyderabad and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 12281 and 11908 of 1983
Judge
Reported inAIR1985AP144
ActsMotor Vehicles Act, 1939 - Sections 48(3), 57 and 68F(1C)
AppellantAndhra Pradesh State Road Transport Corporation, Hyderabad
RespondentState Transport Appellate Tribunal, Hyderabad and ors.
Appellant AdvocateC. Ananda Rao, Standing Counsel
Respondent AdvocateGovt. Pleader and ;O. Adinarayana Reddy, Adv.
Excerpt:
.....- petitioner contended such order was not falling within section 68f (1c) and illegal - respondent granted a permit of a inter state route to respondent no. 3 which overlaps notified route - held, order of respondent not under section 68f (1c) was illegal and cannot be sustained. - - therefore, the view of the first respondent is perfectly legal. , and any variation within such limits shall be made only after the regional transport authority is satisfied that such variation will serve the public convenience and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof; could be done only after the regional transport authority is satisfied that such variation will serve the public convenience and that it is not expedient to..........permits were granted. therefore when the need is there and when there is no implied prohibition to grant variation the third respondent is justified in asking for variation and the same could be granted subject to the condition imposed. in support of that contention, the first respondent relied upon interim orders passed by a division bench of this court in w.a.m.p. no.785/82 in w.a. no.455/82.3. in the writ petition, shri anand rao, the learned senior standing counsel i for the corporation, raised two-fold contentions. firstly, he contended that the variation granted is a pucca variation and the same cannot be granted by operation of proviso to s.48(3)(xxi), since, admittedly, the variation will alter the distance covered by the original route by more than 24 kms. he further contended.....
Judgment:
ORDER

1. Andhra Pradesh State Road Transport Corporation (for shot 'Corporation') is the petitioner. It is assailing the orders of the respondent 1, the State Transport Appellate Tribunal, seeking a Writ of Certiorari to quash its orders in the Revision Petitions Nos. 207 and 213 of 1983, dt. Dec.14,1983. The first respondent revised the permits issued to the third respondent to ply his bus AAC 5900 and AAC 1100 from Gudur to Bangalore without picking up or setting down passengers in between Gudur and Tirupathi with the proposed timings given by him which were already notified and treating them as tentative timings until the same are revised by appropriate authority.

2. The facts not in dispute are that the third respondent was holding a permit in inter-State route to run the vehicles from Tirupathi to Bangalore. He applied for variation of the permit to extend the route up to Gudur, the distance between Tirupati and Gudur being 94 Kms. The request was notified by the second respondent. Objections were raised. The second respondent considered and held that any variation involving alterations of the distance covered by the original route by than more than 24 kilometers cannot be granted. It was also held that the entire length of the extension sought for overlaps the notified route of the corporation. Dissatisfied with this order, the third respondent filed the revision before the first respondent and as stated earlier, the first respondent has allowed the Revision petitions and accordingly granted the permit with the condition referred to above. The main grounds on which the first respondent allowed the revision petition are: So far as the third respondent is concerned he cannot seek variation when the overlapping is more than 24 Kms. but when the authorities grant suo motu, there is no implied prohibition for granting such a variation. Therefore it could be granted. It is also rested its reasoning on another ground, namely, that there is traffic need and the corporation has not been fulfilling the need by running the vehicles over which permits were granted. Therefore when the need is there and when there is no implied prohibition to grant variation the third respondent is justified in asking for variation and the same could be granted subject to the condition imposed. In support of that contention, the first respondent relied upon interim orders passed by a Division Bench of this court in W.A.M.P. No.785/82 in W.A. No.455/82.

3. In the Writ Petition, Shri Anand Rao, the learned Senior Standing Counsel I for the Corporation, raised two-fold contentions. Firstly, he contended that the variation granted is a pucca variation and the same cannot be granted by operation of proviso to S.48(3)(XXI), since, admittedly, the variation will alter the distance covered by the original route by more than 24 Kms. He further contended that there is an approved scheme between Gudur to Tirupati in G.O.Ms. No.1119, dt. Oct.8, 1975, pursuant to which the Corporation has been plying five vehicles covering 29 single trips. Subsequent thereto, there is also a draft scheme published to notify Nellore to Bangalore under S.68C of the Motor Vehicles Act (Act No. IV of 1939) (for short 'the Act') and by operation of Ss.68D, 68F and 68FF, the variation granted to the petitioner amounts to granting a permit over a notified route, which is prohibited under S.68F and 68FF of the Act. Shri Adinarayana Reddy, the learned Counsel for the respondent 3, on the other hand, contended that the prohibition under S.48(3)(xxI) would get attracted only when a request is made by the permit-holder. But, if the authorities suo motu consider in view of the need to grant variation, there is no prohibition over the authorities to grant variation. Therefore, the view of the first respondent is perfectly legal. In support thereof, he relied upon the decision of a single Judge of this Court in W.P.No.1291/71 dt.Oct.13,1972. Alternatively, he contended that the first respondent recorded as a fact that the traffic need exists to grant permit.

The Corporation has obtained a permit earlier for four trips. But, infact, it was running only three trips. Subsequently, it is stated in the counter-affidavit that it has withdrawn one trip and it is running only two trips. As a result, there is a public need for a number of vehicles to be run on the route. If that is so, the grant of variation made by the first respondent could be treated as one under S.68F(1-C0, of the Act. There is no prohibition for treating variation to be one as a temporary permit under S.68F(1-C). He also further contended that subsistence of an approved scheme does not operate as a prohibition to grant a temporary permit on a notified route. In support of that, he relied upon a Division Bench judgment of this Court reported in Syed Jeelam v. S.T.A. Tribunal : AIR1982AP220 and also the decision of Jeevan Reddy, J., in W.P.No.5986 LS (AP) 222 approved and upheld by Division Bench in W.A.No.888/82 in its judgment dt.Oct.22, 1982. He also relied upon the decision rendered in W.P.No.4475/79 dt. Oct. 22, 1979. In view of these respective contentions, the questions that arise for consideration are;

1. Whether the first respondent is justified in law to grant variation of the permit from Tirupati to Gudur?

2. Whether the grant of variation could be treated to be one under S.68F(1-C) of the Act?

Rule 260 of the Rules relating to Motor Vehicles in Andhra Pradesh postulates variation of a permit. It adumbrates that, 'Upon an application made in writing by the holder of any permit, the Transport Authority may, at any time, vary the permit or any of the conditions thereof, subject to the provisions of S.57(8) and sub-r.(2) thereof.' Section 57 of the Act is a procedural provision. When an application for variation has been made, it has to be notified under S.57(3) of the Act, and after hearing representations, if any,that may be made, appropriate Orders could be passed either varying or rejecting the request made. Sub-sec.(8) thereof posits that:

'An application to vary the conditions of any permit, other than a temporary permit, by the inclusion of a new route or routes or a new area or, in the case of a stage carriage permit, by increasing the number of trips above the specified maximum or by altering the route covered by it or in the case of a contract carriage permit or a public carrier's permit,by increasing the number of vehicles covered by the permit, shall be treated as an application for the grant of a new permit:

Provided.............................'

Therefore, when an application is ordered by operation of S.57(8), it will be treated as granting a new permit. The question is whether it could be done? Section 48(3)(xxI) adumbrates thus:

'that the Regional transport Authority may, after giving notice of not less than one month,

(a) vary the conditions of the permit:

(b) attach to the permit further conditions; Provided that the conditions specified in pursuance of clause (I) shall not be varied so as to alter the distance covered by the original route by more than 24 Kms., and any variation within such limits shall be made only after the regional Transport Authority is satisfied that such variation will serve the public convenience and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof;' (emphasis is supplied)

A reading of the proviso would show that conditions of a permit shall not be varied so as to alter the distance covered by the original route by more than 24 Kms. Even the variation route by more than 24 Kms. could be done only after the Regional transport Authority is satisfied that such variation will serve the public convenience and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof. The language couched in the proviso is in absolute prohibitive terms in respect of variation, where such variation is in excess of 24 Kms. The embargo created under the proviso is in absolute terms. Question is whether the authorities can suo motu vary the permit transgressing the legislative inhibition then the language couched is in explicit prohibitive terms. It is not permissible for the authorities acting under the Act, to travel behind (beyond) the provision and grant variation when admittedly the variation alters the distance covered by the original route by more than 24 Kms variation is to be made only on an application and on following the procedure prescribed under S.57. The facts in the case of Murugappa Mudaliar v. secretary, Regional Transport Authority, Chittor(W.P.No.1291/71), decided on 13-10-1971) are that the petitioner was plying a stage carriage on the route Puttur to Chittoor. An application was made for variation of the conditions of the permit. Challenging that, a petition for a writ of prohibition was filed. It was contended that the Act did not authorisee temporary variation of a route. After considering Ss.57 and 62 of the Act, the Court held:

'Thus, it is seen that while there is an express provision for the grant of a temporary permit there is no express provision for the temporary variation of a regular permit. But then that does not conclude the matter. S.48(3) enables the Regional transport Authority to vary the conditions of the permit and to attach t the permit further conditions.'

Proviso to S.48(3)(XXI) did not come up for consideration before the learned Judge. Therefore, the ratio therein has no application to the facts in this case. Accordingly, it must be held that, when variation of a condition of a permit is sought, then by operation of proviso to S.48(3)(XXI) the authorities have no power to vary the conditions of a permit when the variation sought for alters the distance covered by the original route by more than 24 Kms. Accordingly, we hold that the view of the first respondent that the authorities have got suo motu power to vary the conditions in excess of the 24 Kms limit is patently illegal and cannot be sustained.

4. The next question is whether this application could be treated to be an application under S.68F(1-C) of the Act. Admittedly, a draft scheme, in exercise of the powers under S.68C of the Ac, was published in the Andhra Pradesh Gazette by the Corporation, which is a State Transport Undertaking. Once a draft scheme has been published in respect of any route, area or portion thereof specified in the said scheme, for the period intervening between the date of publication of the draft scheme and the date of publication of the approved or modified scheme, a right has been conferred on the Corporation,by operation of S.68F(1-A) of the Act to apply for grant of a temporary permit. The State Transport Authority or the Regional Transport Authority, as the case may be, on its satisfying that it is necessary to increase in the public interest, the number of vehicles operating in such are or route or portion thereof, issue a temporary permit prayed for by the State Transport Undertaking. In case, no application for a temporary permit is made by the Corporation under S.68F(1A), then by operation of S.68F (1-C), the State Transport Authority or the Regional Transport Authority, as the case may be, may grant, subject to the conditions as it may think fit, temporary permit to any person in respect of the area or route or portion ther4eof, specified in the scheme and the permit so granted shall cease to be effective on the issue of a permit to the State transport Undertaking in respect of that area or route or portion thereof. When a draft scheme is published and no application has been filed by the Corporation under S.68F(1-A) and when the need to increase the vehicles subsists, then what is the procedure to be followed is silent in the Act. A Division Bench of this Court in Syel Jeelam v. State Transport Appellate Tribunal : AIR1982AP220 has held that in such a situation a temporary permit could be granted to the private operators and it would ensure till the approved scheme is published under S.68F (1-D). In such a situation, it cannot normally be said that it would be a temporary permit within the meaning of S.62 of the Act, since S.62 posits only grant of a temporary permit for a limited period of four months. Therefore, the Regional Transport Authority is following the procedure laid down under S.57(3) by notifying the application for a permit together with notice inviting the application for a permit together with notice inviting representations in connection therewith and after considering the applications and the representations was granting temporary permits under S.68(F)(1-C). Recently one of our (Ramaswamy, J.) made a reference to a Division Bench on the question whether the procedure under S.57(3) of the Act has to be followed in this regard. We are informed that the bench has heard the matter and reserved its judgment. Therefore, it is not necessary at this stage to decide conclusively on this issue. Suffice it to state that such a procedure is in vogue. The contention of Shri Adinarayana Reddy, the learned counsel for the third respondent, is that the order passed by the first respondent could be treated as a temporary permit under S.68F(1-C) and could be sustained as such. Sri Anand Rao , the learned Senior Standing Counsel for the Corporation, then contended that if such a treatment is meted out, it would not only violate the provisions of the statute but also cause irremediable injury to the corporation. He elaborated his contention by stating that the Corporation has a statutory right to apply for a temporary permit under S.68F (1-A) of the Act and in case it fails to apply for an when application shave been invited for grant of a temporary permit because of S.68F(1C), even then the Corporation has got a right to apply for and when such an application is made, regardless of the claims of the private operators, temporary permit has to be granted only to the Corporation and that is being done. In this case, with regard to the basic question, namely, the need, it should be remembered that the primary authority had not considered that question. The first respondent, being a revisional authority, cannot travel beyond the order passed by the primary authority, namely,the second respondent, and go into the question of the need and then consider the matter afresh as if it is the original authority. It is also not clear from the orders of the first respondent whether the need established is only in respect of Gudur to Tirupati or the notified route, namely, Bangalore to Nellore. Under these circumstances, it is for the primary authority to consider the question as regards the need on the notified route, as Gudur to Tirupati is only a portion thereof. In this view of the matter, the finding of the first respondent that there is a need is not factually correct. Shri Adinarayana Reddy, in rebuttal, contended that even in respect of the variation of the route, if the need exists, variation can be sustained on that ground. As stated earlier, in respect of this contention, he relied upon the decisions of this Court in W.P.No.5986/82 reported in 1982 LS (AP) 222 (rendered by Jeevan Reddy,J.) in W.A.No. 888/82, upholding and approving the decision of Justice Jeevan Reddy, and in W.P.No.2105/84, dt. 25-1-1984 by one of us (Madhava Rao, J.)

In view of these respective contentions, the first question that arises for consideration is whether variation can be granted on the notified route under a draft scheme. That question is now fully answered by a Division Bench of this Court reported in(1979) 2 Andh WR 403. Mohd.Yosuf Basha v.A.P.S.R.T.C. to which one of us (Madhava Rao, J.) is a party. Therein, this Court has held at P.407 thus:

'The framing of a draft scheme and its finalization in dealing with the existing routes would largely be defeated if the operators are free to escape from the effects of the scheme once after it is proposed. The language of S.68F(1-D) read textually and contextually in the light of this statutory purpose would clearly show that the word 'permit' used inS.68F(1D) is not used in the sense of an authorization by way of issuance of a fresh document. It follows that whenever an authorization is given by addition or alteration of anything in relation to a route or a portion thereof during the interregnum of Ss.68-C and 68-D the mandate of S.68-F (1-D) would violated, Section 68F(1D), in our opinion,freezes the state of passenger transportation as it exists on the date of draft notification under S.68-C till the scheme is approved and published under S.68D. Any other interpretation would render to task of State Transport Undertaking to deal with the route almost impossible.'

The ratio laid down therein would squarely apply to the facts in this case and it must be held that no variation can be granted once a scheme has been published under S.68C which is pending finalisation, till the same is approved or modified and published under S.68D. No doubt, it is held by Jeewan Reddy, J., in W.P.No.5986/82 reported in 1982 LS (AP) 222 (M.Rama Subbamma v. State Transport Appellate Tribunal) that once there is an approved scheme and also a draft scheme, there is no prohibition to grant temporary permit. Therein, the learned Judge has held that:

'It is thus obvious that the route covered by G.o.Ms.No.1149 and the new route covered by the draft scheme No.407/77 are entirely different routes. Merely because a portion of the proposed route is covered by approved scheme, it cannot be said that no permits under S.68-F can be granted pending approval of the scheme.'

The learned Judge has explained further:

'It may be that, in a given, case, if the approved route covers a major portion of the route later notified under S.68C, the authorities may say that there is no need for issuing temporary permits under S.68F. But that is different from saying that there is no power to issue such permits.'

In that case, the learned Judge upheld the grant of a temporary permit on he ground that the notified route and overlapping is only for a 'very short' distance. This decision was upheld by a Division Bench in W.A.No.888/82 dt .Oct.22,1982. But, in the instant case, it is seen that the approved scheme covers a distance of 94 Kms. and the draft scheme is also covering the same distance. Further, it is found by the primary authority that the entire length of the extension sought for overlaps the notified route of the Corporation. Under these circumstances, the question that arises for consideration is whether a temporary permit could be granted on this route. In the view we are taking, it is not necessary to consider this question and decide it finally. Circumstances which prevailed with us are that the order passed by the First respondent in granting variation is prohibited by the state and the same cannot be done. No application has been made for grant of a temporary permit under S.68F(1-C).If an application has been made and is notified by the concerned Transport Authority, the condition precedent prescribed therefore is the need. It is for the authority concerned to satisfy that there is need on the route to grant additional temporary permits to serve the public need. Then the Corporation has a statutory right under S.68F(1-A) to apply and if it fails to make an application, a duty is cast on the authorities to notify under S.57 and every one has got a right to apply for and after considering the eligibility of all the candidates, an order has to be passed. Even at that stage, the Corporation is not precluded from making an application and if it so applies, the authorities have a statutory obligation to grant the same. The considerations to grant temporary permits to private operators are altogether different. Considering from this perspective, the order of the first respondent passed in violation of the mandatory procedure amounted to assuaging the rights of several private operators including that of the Corporation and the same cannot be sustained. Under these circumstances, we are of the view that the order passed by the first respondent cannot be treated to be one under S.68F(1-C). Accordingly, we have no option but to hold that the order is patently illegal and cannot be sustained. Therefore, we allow the writ petitions and quash the impugned orders, but in the circumstances of the case, without costs. Advocate's fee : Rs.150/-in each case.

5. Petitions allowed.


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