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The Secretary, Regional Transport Authority, Allahabad and ors. Vs. Mahmood Ahmad - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 108 of 1974
Judge
Reported inAIR1974All441
ActsMotor Vehicles Act, 1939 - Sections 22, 47, 48, 68A and 68C
AppellantThe Secretary, Regional Transport Authority, Allahabad and ors.
RespondentMahmood Ahmad
Appellant AdvocateStanding Counsel
Respondent AdvocateI.P. Naithani, Adv.
DispositionAppeal dismissed
Excerpt:
motor vehicles - nationalisation of route - sections 68-a and 68-c of motor vehicles act, 1939 - private operators were disallowed to carry passengers on hire - area where restriction is put passengers not carried away from place of commencing of journey and ending - no road transport service infringed. - - if the approved scheme does not make an express provision for the manner of partial exclusion but it is clear from the scheme that it does not intend to totally exclude private operators from the notified routes, the authorities may grant or renew permits rendering them ineffective in respect of the overlapping parts, provided they are satisfied that by the grant or renewal of the permit the scheme will not be impaired......that a portion of the route viz. between allahabad-lalgopalganj was a part of the nationalised route, allahabad-unchahar via lalgopalganj.3. learned counsel for the present appellants, on the other hand, contended before the learned single judge that the scheme for nationalisation of allahabad-unchahar via lalgopalganj route provided for complete exclusion of private operators from that route or any portion thereof. in view of that scheme it was not open to the regional transport authority to permit any private operator to run his stage carriage between allahabad and lalgopalganj, even with corridor restrictions, of the nature specified above. in the circumstances, the regional transport authority was justified in granting permit to mahmood ahmadfor plying his stage carriage only.....
Judgment:

H.N. Seth, J.

1. This appeal by the Secretary, Regional Transport Authority, Allahabad, the Assistant Regional Transport Officer (Enforcement) and the Transport Commissioner, U.P. Lucknow, is directed against the judgment of a learned Single Judge, dated 12th February, 1974, allowing a petition, under Article 226 of the Constitution, filed by Sri Mahmood Ahmad.

2. Briefly stated, the facts regarding which, there is no controversy between the parties and which emerge from the various affidavits filed in the writ petition are that Sri Mahmood Ahmad made an application to the Regional Transport Authority, Allahabad, praying for the grant of a permanent stage carriage permit on Allahabad. Bahaganj via Lalgopalganj route. Aforesaid route covered a distance of 40 miles out of which a distance of 24 miles, i.e. between Allahabad and Lalgopalganj formed part of the Allahabad-Unchahar via Lalgopalganj, route which is a nationalised route. The scheme under Chapter IV-A of the Motor Vehicles Act for nationalisation of Allahabad-Unchahar via Lalgopalganj route was published vide Notification No. 10-I/ XXX-B-2(2)-B-60 dated 15th February, 1962 and in due course the same was finalised and published in the U.P. Gazette, dated 2nd March, 1963. In view of the fact that the portion of the route between Allahabad and Lalgopalganj was overlapped by a nationalised route, the Regional Transport Authority vide its resolution dated 29th May, 1972, granted Mahmood Ahmad's application for permit with the modification that he could ply his stage carriage only between Lalgopalganj and Bahaganj, Sri Mahmood Ahmad filed the writ petition, giving rise to the present appeal, on 24th July, 1972. In due course he got his writ petition amended and ultimately prayed that the Regional Transport Authority should be directed to consider petitioner's application for permit on the Allahabad-Bahaganj via Lalgopalganj route after imposing corridor restriction that he may not pick up or set down passengers on the notified portion of the route between Allahabad and Lalgopalganj. According to him, it was not open to the Regional Transport Authority to refuse him permanent stage carriage permit on the Allahabad-Bahaganj route merely on the ground that a portion of the route viz. between Allahabad-Lalgopalganj was a part of the nationalised route, Allahabad-Unchahar via Lalgopalganj.

3. Learned counsel for the present appellants, on the other hand, contended before the learned Single Judge that the scheme for nationalisation of Allahabad-Unchahar via Lalgopalganj route provided for complete exclusion of private operators from that route or any portion thereof. In view of that scheme it was not open to the Regional Transport Authority to permit any private operator to run his stage carriage between Allahabad and Lalgopalganj, even with corridor restrictions, of the nature specified above. In the circumstances, the Regional Transport Authority was justified in granting permit to Mahmood Ahmadfor plying his stage carriage only between Lalgopalganj and Bahaganj.

4. The learned Single Judge repelled the plea raised by the present appellant and after considering various provisions of the scheme, concluded that grant of permit to a private operator on Allahabad-Bahaganj via Lalgopalganj route with corridor restrictions, namely that he would not pick up or set down passengers between Allahabad and Lalgopalganj, which formed part of the Allahabad-Unchahar route, would not be in derogation of the scheme framed under Chapter IV-A of the Motor Vehicles Act. Accordingly, he allowed the writ petition and after quashing the resolution of the Regional Transport Authority dated 29th May, 1972, to the extent that it refused to grant permit to Mahmood Ahmad for the entire route applied for by him, directed the Regional Transport Authority to decide the matter afresh in accordance with law. The appellants have filed the present special appeal seeking to challenge the aforesaid order passed by the learned Single Judge.

5. Section 48 of the Motor Vehicles Act, 1939, provides that subject to the provisions of Section 47, a 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 a permit; provided that no such permit shall be granted in respect of any route or area not specified in the application. Section 47 lays down the considerations of public interest which have to be taken into account while dealing with an application for the grant of stage carriage permit. Accordingly, under Section 48 of the Motor Vehicles Act, if the public interest so required, the Regional Transport Authority could grant to Mahmood Ahmad, permit with such modification as it deemed fit and for that purpose instead of granting permit for the entire route applied for by him, it could grant him permit for a part of Allahabad-Bahaganj via Lalgopalganj route.

6. Learned Standing Counsel appearing for the appellants urged that in the circumstances, keeping in view that a part of Allahabad-Bahaganj via Lalgopalganj route, i.e. between Allahabad and Lalgopalganj was a part of a nationalised route, the Regional Transport Authority was fully competent to grant the application filed by Mahmood Ahmad with the modification that he was to ply his stage carriage only between Lalgopalganj and Bahaganj. According to him, it would not have been in public interest to permit any private operator to ply his stage carriage over any portion of the nationalised route on which all the services were to be provided for by the State Transport Undertaking. We are unable to accept this submission. A perusal of the order passed by the Regional Transport Authority indicates that it granted the prayer made by Mahmood Ahmad in a modified form as it thought that any permission granted to him to ply his stage carriage on Allahabad-Lalgopalganj portion of the route would be in derogation of the scheme of nationalization of the Allahabad-Unchahar route. It does not appear that while considering Mahmood Ahmad's application for the grant of permit on Allahabad-Bahaganj via Lalgopalganj route, the Regional Transport Authority took into the consideration, various factors mentioned in Section 47 of the Motor Vehicles Act. The stand taken by the present appellant throughout had been that in view of nationalization of Allahabad-Unchahar route, grant of stage carriage permit to Mahmood Ahmad on Allahabad-Bahaganj route even with corridor restrictions would have the effect of contravening the scheme in respect of Allahabad-Unchahar route and as such the Regional Transport Authority was not competent to grant Mahmood Ahmad's application for the entire route applied for by him. It appears that before the learned Single Judge, also it was not urged on behalf of the appellants that apart from the provisions of the scheme, the prayer made by Mahmood Ahmad in his application for permit deserved to be modified in view of the considerations of public interest, enumerated in Section 47 of the Motor Vehicles Act. It also appears that in this case the Regional Transport Authority neither went into the question nor did it investigate the facts justifying the modification in the prayer made in Mahmood Ahmad's application, on considerations enumerated in Section 47 of the Act. In these circumstances we feel that it would not be proper to permit the appellants to raise the point that on considerations of public interest, enumerated in Section 47 of the Act, Mahmood Ahmad's application deserved to be granted only in a modified form, at the Special Appeal stage.

7. The only questions, therefore, that survive for consideration are whether grant of permit to Mahmood Ahmad to ply his stage carriage between Allahabad and Bahaganj, with corridor restrictions that he would not pick up or drop passengers between Allahabad and Lalgopalganj, would derogate from the scheme for nationalization of the Allahabad-Unchahar via Lalgopalganj route framed under Chapter IV-A of the Motor Vehicles Act, and whether the impugned order shall be interfered with in a petition under Article 226 of the Constitution.

8. Purpose for nationalization of the Allahabad-Unchahar route is revealed by the following clauses in the scheme:

'2. State Road Transport Passenger Services shall be provided on the routes Allahabad-Unchahar (a) Allahabad-Sangramgarh of Lucknow Region.

4. No person other than the State Transport Undertaking will be permitted to provide any road transport services on the route or portions thereof specified in Clause (2) above........'

'7 (b) (ii) The permit Nos. (1) 312, (2) 443 of Allahabad-Derwa via Mahesoorbad route and (3) 393, (4) 394, (5) 472, (6) 473 of Allahabad-Bahaganj route which have been granted to Sarvsri (1) Ishwar Dutt Shukla, (2) Srimati Salda Bibi, (3) Srimati A. P. Tewari, (4) Ali Ahmad Siddiqui, (5) Srimati Vidyawati Devi, (6) Surendra Kumar Jaiswal by the Regional Transport Authority, Allahabad, shall be modified to the extent that in the case of permits at serials (1 and 2) Allahabad-Mansurabad portion and in the case of the permits at serials (3 to 6) Allahabad-Lalgopalganj portion shall be excluded from the area of their validity.'

'8. The number of Transport Vehicles plying on the route or portion thereof specified in Clause (2) above shall be reduced to nil.'

It appears that under the scheme, road transport passenger service on Allahabad-Unchahar via Lalgopalganj route or any part thereof is to be provided for only by the State Transport Undertaking and by no other person. It can be presumed khat the expression 'State Road Transport Passenger Service', contemplated by the scheme, means a road transport service as defined in Section 68-A of the Act, which runs thus:--

'Road transport service means a service of motor vehicles carrying passengers or goods or both by road for hire or reward.'

Accordingly, a person can be said to provide road transport passenger service on a route specified in the scheme only if he carries passengers by road for hire or reward either from or to some point on the route in question. If neither of the terminii viz. the place from where the journey commences or the place where the journey ends fall on the route which has been nationalized, it cannot be said that road transport passenger services is being provided for on that route or on any part thereof, merely because the passengers are physically carried over a portion of that route. In expressing this view we derive considerable support from a decision of the Supreme Court in the case of Ram Sanehi Singh v. Bihar State Road Transport Corporation, reported in (1971) 3SCC 797. In the case the scheme of nationalization provided that all services on the nationalized Patna-Newada route or part thereof were to be provided by the State Road Transport Corporation. Certain operators of a non-nationalized route applied for extension of route mentioned in their permits. The prayer for extension involved the use of a stretch of 5 miles portion of the nationalized Patna-Newada route (Fatwaha to Patna by pass). The extension of route was opposed by the Road Transport Corporation on the ground that such extension of route will have the effect of contravening the scheme for the nationalization of Patna-Newada route. After overruling the objections raised by the Bihar State Transport Corporation, the Regional Transport Authority extended the permit of the private operator after imposing a corridor restriction that he was not to pick up or drop passengers from or at any point on the portion of the nationalized route. While dealing with the objections raised by Bihar State Transport Corporation, the Supreme Court observed thus:--

'It is true that the extended route partly overlaps the notified route; but there is nothing in the notified scheme which completely excludes the other holders of permits issued to them from plying their stage carriage in pursuance of permits issued to them from termini not on points on the notified route. The scheme merely grants to the State Road Transport Corporation a right to ply their stage carriages from Patna to Newadah and all services including the service on portion en route are to be run by them. It does not however mean that where under a permit a service is to be run over a route a section of which is to be run over the notified route but without any right to pick up or drop passengers along that notified route, the permit will be deemed to the extent of the section of the notified route ineffective. The preamble of the scheme undoubtedly refers to the claim made by the State Road Transport Corporation that there should be complete exclusion of other persons from plying buses over the route Patna-Nawadah but the operative part of the scheme merely provides that in pursuance of Section 68-C of the Motor Vehicles Act, 1939, the scheme prepared by the Rajya Transport is published for general information and that the scheme is for plying buses in the route Patna-Nawadah or portions thereof, the Road Transport Corporation being invested with the right to ply its stage carriages on the route and portions thereof. There is however, no complete exclusion of other operators under that scheme provided the private operators do not pick up or drop passengers on thesection of the route which overlaps the notified route.'

Similar question arose for consideration before a Division Bench of this court in the case of Kanhaiya Lal Gupta v. State Transport (Appellate) Tribunal (Special Appeal No. 654 of 1969), decided on 11-9-1969 (All.). In that case also the question regarding validity of permits to ply buses on a route which overlapped a part of the nationalised route reserved for exclusive operation by the State Transport Undertaking, with corridor restrictions namely that passengers would not be picked up from or dropped at any point on any portion of the nationalized route, came up for consideration. It was urged that grant of stage carriage permit with corridor restrictions resulted in the modification of the scheme of nationlization by the Regional Transport Authority, which could not be done under the law. The Bench repealed this submission and made the following observations:--

'A perusal of the scheme would show that the State Government had decided to run the road transport service exclusively and for that purpose in para. 4 it was provided that 'no person other than the State Government shall be permitted to ply any road transport services on the route or portion thereof specified in Clause (2) above'. This really implies that no stage carriage could pick up passengers on the notified route. As long as a stage carriage passes and repasses over any portion of the notified route without picking up any passengers on the said portion, it does not provide any transport service on the said portion. Accordingly, there is no modification of the scheme. The monopoly service of the State remain in tact.'

Learned Standing Counsel, on the other hand, placed reliance on another Division Bench decision of this Court in the case of Secretary, Regional Transport Authority, Varanasi v. Partap Narain Singh (Special Appeal No. 565 of 1972, decided on 17-11-1972 (All.)). In that case the Regional Transport Authority, while granting permits to private operators imposed a corridor restriction. The Transport Commissioner took the view that the scheme of nationalization in that case completely excluded the private operators from plying their vehicles over that route or on any part thereof. He, accordingly, issued directions to the Regional Transport Authorities, requiring them to prohibit the private operators from plying their vehicles on the notified portion of the route. Main question that arose for consideration by the Court in that case was whether the Transport Commissioner had any jurisdiction to issue such directions to the Regional Transport Authority. This Court observed that if the TransportCommissioner was of opinion that the consideration by way of corridor restriction in the permit of the private operator was illegal, he should have applied to the Regional Transport Authority to cancel the permit of the private operators on the ground that they were plying their stage carriages in contravention of the scheme of nationalization. His action in interfering with the plying of the stage carriages by the private operators was, accordingly, premature. However, the Bench went on to observe that the nature of restriction which is imposed by the scheme of nationalization will have to be inferred from the provision contained in the scheme itself and that in that particular case the provisions in the scheme were materially different from that in the scheme involved in Kanhaiya Lal Gupta's case, Spl. App. No. 654 of 1969, D/- 11-9-1969 (All.). Accordingly, we take it that all that has been decided by the Division Bench in the case, Spl. App. No. 565 of 1972, D/- 17-11-1972 (All.) is, that the Transport Commissioner had no jurisdiction to issue directions to the Secretary, Regional Transport Authority requiring him to prohibit the plying of the stage carriage by Partap Narain Singh and another, and that what would result in contravention of a scheme can be found out only by interpreting the particular scheme.

9. Learned counsel for the appellants emphasised the contents of paragraphs 4 and 8 of the scheme which provide that no person other than the State Government shall be permitted to provide any road transport services on the route or any portion thereof and that the transport vehicles plying on the route or portion thereof specified in Clause (2) above shall be reduced to nil, and urged that the scheme contemplated restriction not only on the right of persons other than the State Transport Undertaking to provide passenger transport service but it further contemplated that such other operators would also not ply their vehicles on the route or portion thereof.

10. In our opinion, the provisions of the scheme extracted above, indicate that they were directed towards providing for road transport passenger service on the Allahabad-Unchahar via Lalgopalganj route, by the transport undertaking to the exclusion of other operators. Clause 8 of the scheme read in the context will only mean that the number of transport vehicles other than those of the undertaking which ply for providing road transport passengers service would be reduced to nil. Section 22 of the Motor Vehicles Act provides that no person shall drive any motor vehicle and no owner of a motor vehicle shall cause orpermit the vehicle to be driven in a public place unless the vehicle is registered in accordance with Chapter III. It is obvious that Section 68-C was not intended to place restriction on plying of motor vehicles, which have been registered under Chapter III of the Motor Vehicles Act. If a scheme provides that a motor vehicle though registered in accordance with Chapter III would not physically ply on any portion of the nationalized route, it would be providing for something which is not contemplated by Chapter IV-A of the Act. Accordingly, when clause 8 provides that no transport vehicle shall ply on the nationalized route, it did not intend to place a restriction on the act of plying in the physical sense. It merely prohibited the use of the transport vehicle for purposes of providing passenger service between the points falling on the nationalized route. Accordingly, the scheme in question did not preclude the Regional Transport Authority from granting a permit on the Allahabad-Babaganj via Lalgopalganj route with the corridor restrictions of the nature specified above. Subject to the provisions of Section 47 of the Motor Vehicles Act, stage carriage permits for providing passenger service with corridor restriction that the permit holder would not pick up or drop passengers from or fit point falling on the nationalized portion of the route could be granted. Such grant would not, in our opinion, derogate from anything contained in the scheme.

11. Learned Standing Counsel cited before us a Full Bench decision of the Mysore High Court in the case of Mysore State Road Transport Corporation v. Mysore Revenue Appellate Tribunal, Bangalore, (AIR 1968 Mys 1 (FB)) wherein it was held:

'The question whether the authorities under the Act are competent to grant to a private operator, in respect of any route which overlaps any part of notified route in an approved scheme, a permit (of 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 the scheme. When the approved scheme provides for complete or total exclusion of private operator from the notified area or route the authorities have no jurisdiction to grant them a permit even with the restriction of making it ineffective in respect of the overlapping part of the notified area or route. If the scheme does not exclude the private operators completely and the manner of partial exclusion is also incorporated in the scheme itself, the grant or renewal of the permit to the private operator in respect of a notified route should conform to the provision in the scheme for partial exclusion. If the approved scheme does not make an express provision for the manner of partial exclusion but it is clear from the scheme that it does not intend to totally exclude private operators from the notified routes, the authorities may grant or renew permits rendering them ineffective in respect of the overlapping parts, provided they are satisfied that by the grant or renewal of the permit the scheme will not be impaired.'

He also placed reliance on the case of S. Abdul Khader Saheb v. Mysore Revenue Appellate Tribunal (AIR 1973 SC 534) wherein the Supreme Court laid down that the scheme of nationalization under Section 68-D would prevail over an Inter-State agreement in respect of an inter-State route. In none of these cases the question considered by us was either raised or decided. As stated earlier the weight of authority seems to be that whether or not, in consequence of a nationalized scheme a private operator can obtain permit over a route which overlaps a part of the nationalized route will depend upon the scheme itself.

12. These cases do not lay down anything contrary to the view expressed by us above. As stated earlier, the scheme in the instant case merely provides that no private operator other than State Transport Undertaking shall provide road transport services on Allahabad-Unchahar via Lalgopalganj portion of the route or any part thereof. In other words, no operator other than State Transport Undertaking would pick up or drop passengers from or at any place which falls on any portion of the notified route viz. the Allahabad-Unchahar via Lalgopalganj route. Normally, there would be no contravention of the scheme if a person runs a stage carriage on the nationalized portion of the route, as long as he does not pick up or drop passengers from or at any point on such portion. It was, therefore, open to the Regional Transport Authority to consider Sri Mahmood Ahmad's application for permit on the entire Allahabad-Babaganj route, and to grant the same after imposing the corridor restriction of the nature mentioned above.

13. However, after carefully considering the implications of the corridor restriction, suggested on behalf of the operator Mahmood Ahmad, we feel that in this case it will make no practical difference whether operator's application for stage carriage permit is allowed, subject to the corridor restriction, for the entire route applied for by him or it is allowed merely for Lalgopalganj-Babaganj portion of the route. Legal consequencesflowing in either of the two cases would just be the same. Even if Mahmood Ahmad is granted a stage carriage permit for the entire route applied for by him, the scheme for the nationalization of the Aliahabad-Unchahar route as also the proposed corridor restrictions would, while the operator plies his stage carriage on Allahabad-Babaganj route, preclude him from picking up or dropping any passenger from or at any point on the part of the route between Allahabad and Lalgopalganj, which is overlapped by the nationalized route. In other words, while the operator proceeds from Allahabad to Babaganj he would not be able to pick up any passenger till he reaches Lalgopalganj. It is not possible to accept the argument that picking up of passengers at Allahabad, for a destination beyond Lalgopalganj, would not result in providing passenger service on Allahabad-Lalgopalganj portion of the nationalized route. The points from where a route initiates and at which it ends, fall as much on that route as any other point in the way. Accordingly, Allahabad the place from where both the routes in question begin, is as much point on the nationalized route (Allahabad-Unchahar) as is any other point on the way between Allahabad and Lalgopalganj. If a passenger is picked up at Allahabad for being carried to a place beyond Lalgopalganj, he would still be a passenger picked up from a point on the nationalized route, and as explained above it will result in providing passenger service on a part of the nationalized route which under the scheme can be done only by the State Transport Undertaking. In the result even if the operator gets a stage carriage permit, with the corridor restrictions of the nature suggested by him he would, while proceeding from Allahabad to Bahaganj, have to ply his stage carriage without any passenger till he reaches Lalgopalganj. Similarly on his return journey he will not be able to carry any passenger who is to be dropped at Allahabad or at any other place between Lalgopalganj and Allahabad. Since his stage carriage is not to run beyond Allahabad, it will again have to run without any passenger between Lalgopalganj and Allahabad. It follows that notwithstanding the grant of stage carriage permit on the route applied for, Mahmood Ahmad will be able to carry passengers and provide passenger service only between Lalgopalganj and Babaganj, which he is able to do under the impugned permit. As already explained grant of permit to Mahmood Ahmad for Lalgopalganj-Babaganj portion of the route wouldnot prevent him from running his vehicle which has been registered under Chapter III of the Motor Vehicles Act on any route not included in his permit, (including Allahabad-Lalgapalganj portion of the nationalized route), so long as he does not on such route run it as a stage carriage i.e. he does not carry a passenger for hire or reward. Whether Mahmood Ahmad is granted permit for the whole route applied for by him or for only the portion which is not overlapped by the nationalized route he would be able to provide passenger transport service only between Lalgopalganj and Babaganj and in either case he would be able to ply his vehicle between Lalgopalganj and Allahabad without carrying any passenger. Since in this case the overlapping portion of the nationalized route and the non-nationalized route have a common terminus, it does not make any difference whether Mahmood Ahmad is granted a stage carriage permit either for the entire route applied for by him, with corridor restrictions or he is granted permit only for the non-notified portion of the route. The position would have been different if neither terminii of the nationalized and the non-nationalized routes had been common, and the overlapping portion of the two routes had fallen in between the two terminii of the non-notified route. In such a case it might have been possible for the concerned operator to pick up a passenger from a place which did not fall on the nationalized route and after carrying him over a portion of the nationalized route, to drop him at a place which also did not fall on the nationalized portion of the route. A corridor restriction, in such a case might assume meaning and importance for the concerned operator.

14. Since in this case the effect of granting permit to Mahmood Ahmad on the entire Allahabad-Babaganj route with corridor restrictions viz. that he would not pick up or drop passengers from or at any place falling on the notified portion of the route between Allahabad and Lalgopalganj, would just be the same as granting him permit for plying his vehicle between Lalgopalganj and Babaganj, we do not think that any case for interfering with the impugned order, had been made out. We are, therefore of opinion that no writ directing the Regional Transport Authority to reconsider the matter should have been issued.

15. In the result the appeal succeeds, and is allowed. The order of the learned single Judge dated 12-2-1974 is set aside. The writ petition filed by Mahmood Ahmad is dismissed, but in the circumstances we direct the parties to bear their own costs in this appeal as also in the writ petition.


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