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Madhya Pradesh State Road Transport Corporation Vs. the State Transport Appellate Authority, Madhya Pradesh, Gwalior and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 324 of 1972
Judge
Reported inAIR1974MP131
ActsMotor Vehicles Act, 1939 - Sections 58 and 68D; Motor Vehicles (Amendment) Act, 1969 - Sections 58(4), 64(1), 64(2) and 64(3)
AppellantMadhya Pradesh State Road Transport Corporation
RespondentThe State Transport Appellate Authority, Madhya Pradesh, Gwalior and ors.
Appellant AdvocateD.V. Nigudkar, Adv.
Respondent AdvocateM.N. Phadke, ;B.P. Gupta, ;S.Q. Hasan, ;A.S. Jha and ;B.K. Rawat, Advs.
DispositionPetition dismissed
Cases ReferredM. S. R. T. Corporation v. B. R.
Excerpt:
.....renewal of the permit from 11th february 1972 to 10th february 1975, as was done by the regional transport authority in pursuance of the order of the appellate authority, was clearly wrong. it is not necessary to deal with all these contentions, because, we are satisfied that on a proper construction of section 64 (3) none of the provisions of the amending act applies to a pending appeal. but in construing such a section it is well settled that the controlling provision is the enacting clause and it is that clause which must be construed first according to the natural and ordinary meaning of the words used in it. ' the language used is plain and the words 'as if that act had not been passed' clearly mean that all pending appeals have to be decided without reference to any provision in..........wrong. the other contention which is based on section 68-f (1d) is that during the pendency of the appeal scheme no. 30-m came to be proposed and the proposed scheme was published on 13th november 1970 under section 68-c. it is argued that this scheme covers the route chhatarpur to kishangarh and, therefore, no permit could have been granted or renewed in view of section 68-f (1d) after the publication of the proposed scheme. in answer to these contentions raised by the learned counsel for the petitioner, learned counsel for the respondent-company contended as follows. he first contended that the amending act was not applicable to any pending appeal. reference in this connection was made to sub-section (3) of section 64 which was also inserted by the amending act. this provision reads as.....
Judgment:

Singh, J.

1. The petitioner the Madhya Pradesh State Road Transport Corporation, hereinafter referred to as the Corporation, by this petition under Article 226 of the Constitution calls into question the order of the Transport Appellate Authority dated 24th January 1972 passed in Appeal No. 640 of 1969 and consequent renewal of the permit of respondent No. 3 M/s Bundelkhand Motor Transport Company, hereinafter referred to as the Company.

2. The facts are that the Company held a permit for Chhatarpur-Jetpur via Kishangarh route which expired on 30th May 1965. Before the expiry of the permit the Company made an application for renewal of the permit under Section 58 of the Motor Vehicles Act. 1939). One Jogendra Singh objected to the grant of renewal to the Company. The Corporation also objected to the renewal and in addition made an application for grant of a permit to itself. The Regional Transport Authority. Rewa, who considered the application for renewal of the Company, passed an order granting the renewal on 5th November 1965. An appeal was filed against this order by the Corporation alone and no appeal was filed by Jogendra Singh. Jogendra Singh was not even impleaded as a party in the appeal of the Corporation, The appeal filed by the Corporation was allowed by the Transport Appellate Authority on 25th January 1967 and the case was remanded to the Regional Transport Authority, Rewa. By its order dated 13th September 1969 the Regional Transport Authority. Rewa, rejected the application for renewal of the Company and granted a permit to the Corporation. The Company preferred an appeal against this order, being Appeal No. 640 of 1969, which was decided by the Appellate Authority on 24th January 1972. By this order passed in appeal the application for renewal of the permit of the Company was allowed and the application of the Corporation for grant of a permit was dismissed. In pursuance of the order of the Appellate Authority, the Regional Transport Authority renewed the permit of the Company from 11th February 1972 to 10th February 1975. Thereafter the present petition was filed by the Corporation challenging the order of the Appellate Authority granting renewal.

3. The first point raised by the learned counsel for the petitioner is that in the appeal filed by the Company against the order of the Regional Transport Authority, Rewa, dated 18th September 1969, Jogendra Singh was not impleaded as a Party and no notice was issued to him of the appeal by the Appellate Authority. It is argued that Jogendra Singh was a necessary party and without noticing him the appeal could not be heard and therefore the impugned order passed in appeal was invalid and void. Reliance for this argument is placed on Rule 73 (b) which requires that the Appellate Authority should issue notice of appeal to the appellant, the original authority and any other person interested in the appeal. In our opinion, there is no substance in this contention. It is true that Jogendra Singh had initially objected to the application for renewal made by the Company, but after the renewal was granted by the Regional Transport Authority, Rewa, on 5th November 1965 he did not prefer any appeal. The Corporation alone went up in appeal against that order and in that appeal also Jogendra Singh was not impleaded as a party and no notice of appeal was given to him. The remand order was passed in an appeal preferred by the Corporation in which Jogendra Singh was not a party and the benefit of that order could not be taken by him. Consequently, he could not participate and indeed, he did not participate in the proceedings after remand. In these circumstances, it is clear that Jogendra Singh was not a person interested in the result of the appeal filed by the Company against the order passed by the Regional Transport Authority after remand and the Appellate Authority was right in not issuing any notice to him. Even otherwise, we feel that the Corporation is not entitled to ventilate the grievance that Jogendra Singh was not noticed when he himself has not come forward to challenge the order of the Appellate Authority on that ground. In this writ petition also he has not been joined as a party. For these reasons, we reject the first contention raised by the learned counsel for the petitioner.

4. The next contention of the learned counsel for the petitioner is that the grant of renewal of the Company's permit was in contravention of the approved Scheme No. 30 published on 24th March 1967. By this nationalisation scheme, which was made and published under Chapter IV-A of the Act, Chhatarpur Kishangarh was a route reserved for the exclusive operation of the Corporation. It is contended on this basis that the renewal of the Company's permit for the route Chhatarpur to Jetpur via Kishangarh was in contravention of the scheme as the route for which the permit was renewed includes a route which is of complete exclusion under the scheme.

5. The approval of the Government to Scheme No. 30 under Section 68-D was granted by the order of the Special Secretary, dated 8th March 1967. It will appear from the order of the Special Secretary that no notice of the scheme was issued to certain operators holding permits for routes which partially overlapped the routes proposed for exclusive operation of the Corporation. The Special Secretary, therefore, held that the scheme could be approved only by eliminating from it those operators who held permits partly overlapping the exclusive routes. The scheme was, therefore, approved to cover only those operators whose routes were wholly within the exclusive routes. The relevant portion of the order of the Special Secretary reads as follows:

'The scheme can be approved by eliminating from the scheme those operators who only overlap the exclusive routes. This has to be done because without it the scheme would be discriminatory vis-a-vis the similar operators who have been left out. After this elimination the scheme would cover only those permit holders whose routes lie wholly within the exclusive routes, viz., Rewa Harpalpur. Chhatarpur Kishangarh, Satna Raigaon and Rewa-Gaddi.' Reading Scheme No. 30 in the light of the order of the Special Secretary approving it it must be held that the scheme covered only those permit holders whose routes lay wholly within the routes proposed as routes for exclusive operation. The Company's permit was for the route Chhatarpur to Jetpur via Kishangarh whereas, the relevant exclusive route under the scheme is Chhatarpur to Kishangarh and hence it cannot be said that the route covered by the permit was wholly within the exclusive routes of the scheme. The Company's permit was therefore, unaffected by Scheme No. 30. Learned Counsel for the petitioner submitted that the scheme must be construed on its own language without any assistance being taken from the order of the Special Secretary. He relied upon a decision of this Court in Rewa Transport Service v. State of M. P. M. P. No. 289 of 1967. D/- 30-7-68 (Madh Pra). This argument cannot be accepted, for it is now well settled by the decision of the Supreme Court in the case of Samrathmal v. Regional Transport Authority, Indore AIR 1971 SC 1986 that a nationalisation scheme should be construed the light of the order passed under Section 68-D approving it. In Samrathmal's case a scheme which on its face was a scheme of complete exclusion was held not to cover a permit for a route which only partially overlapped the routes in the scheme because the order of the Special Secretary approving the scheme showed that such permits were unaffected by the scheme and the approval granted was not intended to coyer them. Similar is the position in the instant case. Any contrary opinion expressed by this Court in the case of Rewa Transsport Service must be taken to be overruled by the Supreme Court.

6. It was then argued that irrespective of whether the Company's route was covered by Scheme No. 30 or not the Regional Transport Authority by its order dated 18th September 1969 came to the conclusion that it was so covered and rejected the renewal application under Section 68-F (2) and that order was, therefore, not appealable as provided in Section 68-F (3).

7. The question that arises on this point is whether the order passed by the Regional Transport Authority on 18th September 1969 was an order under Section 68-F (2) or whether it was an order passed under Sections 48 and 58 of the Act. The relevant portion of the order reads as follows:

'I have considered this matter and find that though there is nothing seriously wrong with the permit holder, nearly 4/5th of the route falls within a route of complete exclusion of private operators. Even though I agree that the Special Secretary had ordered the State Undertaking to prepare a separate scheme for such routes where one terminus fell outside the routes of complete exclusion i.e. in cases where the routes only partially overlapped a route of complete exclusion, and that no scheme has vet been prepared to take over such routes, the fact remains that more than 80% of a route length has been taken over by the State Undertaking in complete exclusion of private operators and they are running since vehicles on this portion of the route. Since they offered to run an entirely new service to replace the applicant, it will not be inconvenient. The public will, therefore, not suffer by the co-applicant getting the permit.

Between the two applicants. I would prefer the State undertaking particularly in view of the fact that 80% of the road sector comprised in the route under consideration forms part of complete exclusion of private operators.

The application for renewal is accordingly rejected and the permit is granted to the M. P. S. R. T. C.'

The order of the Regional Transport Authority is not expressed to be made under Section 68-F (2). Further, it is quite clear by reading the order as a whole that the renewal application was not rejected on the ground that its grant will contravene the scheme or that its rejection was necessary to give effect to the scheme, but on the ground that out of the two applicants the Corporation was to be preferred. It will be seen that the Regional Transport Authority was alive to the fact that the Special Secretary had held at the time of approval of the scheme that the scheme will not affect the permits for routes which only partially overlapped the routes in the scheme and that the Corporation should prepare a separate scheme for Partially overlapping routes. Out of the Company and the Corporation the Corporation was no doubt preferred mainly, because 80% of the route was covered by the scheme; but it was not held that the renewal was barred by the scheme or that refusal of renewal was necessary to give effect to the scheme and the scheme was merely referred to in the order as a ground for preferring the Corporation, In our opinion, the order of the Regional Transport Authority was not an order passed under Section 68-F (2) for the purpose of giving effect to the scheme; it was merely an order passed under Sections 48 and 58 of the Act rejecting the application for renewal and granting a permit in lieu of renewal to the Corporation. The order, therefore, was clearly appealable under Section 64 of the Act.

8. It was next argued by the learned counsel for the petitioner that as the Motor Vehicles (Amendment) Act 1969, came into force on 2nd March 1970 during the pendency of the Company's appeal before the Appellate Authority the Appellate Authority should have taken into consideration two provisions inserted in the parent Act by the amending Act. The two provisions to which the learned counsel makes reference are Sub-section (4) of Section 58 and Sub-section (1D) of Section 68-F which read as follows:

'58 (4) Where a permit has been renewed under this Section after the expiry of the period thereof, such renewal shall have effect from the date of such expiry irrespective of whether or not a temporary permit has been granted under Clause (d) of Section 52, and where a temporary permit has been granted, the fee paid in respect of such temporary permit shall be refunded.'

'68-F (1D) Save as otherwise provided in Sub-section (1-A) or Sub-section (1-C), no permit shall be granted or renewed during the period intervening between the date of publication, under Section 68-C of any scheme and the date of publication of the approved or modified scheme, in favour of any person for any class of road transport service in relation to an area or route or portion thereof covered by such scheme:

Provided that where the period of operation of a permit in relation to any area, route or portion thereof specified in a scheme published under Section 68-F expires after such publication, such permit so renewed shall cease to be effective on the publication of the scheme under Sub-section (3) of Section 68-D.'

On the basis of the provisions quoted above it is contended that as under Section 58 (4) the period of renewal takes effect from the date of expiry of the permit, the application for renewal had in fact, become infructuous as the entire period for which the permit could be renewed had lapsed before the disposal of the appeal. It is also contended that in view of Section 58 (4) the renewal of the permit from 11th February 1972 to 10th February 1975, as was done by the Regional Transport Authority in pursuance of the order of the Appellate Authority, was clearly wrong. The other contention which is based on Section 68-F (1D) is that during the pendency of the appeal Scheme No. 30-M came to be proposed and the proposed scheme was published on 13th November 1970 under Section 68-C. It is argued that this scheme covers the route Chhatarpur to Kishangarh and, therefore, no permit could have been granted or renewed in view of Section 68-F (1D) after the publication of the proposed scheme. In answer to these contentions raised by the learned counsel for the petitioner, learned counsel for the respondent-Company contended as follows. He first contended that the amending Act was not applicable to any pending appeal. Reference in this connection was made to Sub-section (3) of Section 64 which was also inserted by the amending Act. This provision reads as follows:

'64 (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2), every appeal pending at the commencement of the Motor Vehicles (Amendment) Act. 1969, shall be proceeded With and disposed of as if that Act had not been passed.'

It was also contended that apart from Section 64 (3), the right of renewal of a permit for a particular period was a substantive right and Section 58 (4) inserted by the amending Act could not be construed to be retrospective so as to affect pending appeals on the subject of renewal. As regards Section 68-F (1D), it was contended that this provision will also not apply to a pending appeal in view of Section 64 (3). In the alternative, it was argued that the bar under Section 68-F (1D) can apply only when the proposed scheme is such that the grant of a permit or grant of renewal of a permit will be inconsistent with its provision. It is pointed out that the proposed Scheme No. 30-M is not a scheme of complete exclusion of private operators so far as the route in question is concerned, and the grant of renewal was not in any way in conflict with that scheme. It is not necessary to deal with all these contentions, because, we are satisfied that on a proper construction of Section 64 (3) none of the provisions of the amending Act applies to a pending appeal. We shall hereinafter give our reasons for this conclusion.

9. Section 64(3), which we have earlier quoted, begins with a non obstante clause. But in construing such a section it is well settled that the controlling provision is the enacting clause and it is that clause which must be construed first according to the natural and ordinary meaning of the words used in it. The enacting clause of Section 64 (3) provides that 'every appeal pending at the commencement of the Motor Vehicles (Amendment) Act, 1969, shall be proceeded with and disposed of as if that Act had not been passed.' The language used is plain and the words 'as if that Act had not been passed' clearly mean that all pending appeals have to be decided without reference to any provision in the amending Act; in other words, the entire amending Act has to be overlooked for deciding pending appeals. These enacting words are not open to any other reasonable construction.

10. Learned counsel for the petitioner, however, submits that the non obstante clause which reads 'notwithstanding anything contained in Sub-section (1) or Sub-section (2)' must be taken into account in construing the enacting clause and, if that is taken into account, the words 'as if that Act had not been passed' used in the enacting clause must be taken to be restricted to the changes brought about by the amending Act in Section 64, Sub-sections (1) and (2), Speaking briefly, the changes brought about in Section 64 by the amending Act are that a new provision for an appeal has been made in Sub-section (1) against an order of forfeiture passed under Section 45 (4) or under Section 63 (9). and by Sub-section (2) the State Government is required to constitute a State Transport Appellate Tribunal and this tribunal is substituted as the Appellate Tribunal in place of the prescribed appellate Authority under the section as it stood unamended. The argument of the learned counsel for the petitioner in substance, therefore, is that these changes made in Section 64 by the amending Act will alone not be taken into account while disposing of a pending appeal and other provisions of the Act will have their operation even for pending appeals. It is also argued that Section 68-F (1D) which has been inserted in Chapter IV-A will in any case apply, because the provisions in Chapter IV-A override any provision in Chapter IV in case of inconsistency.

11. It is true that the non obstante clause is not harmonious with the enacting clause, because the former is restricted to Sub-sections (1) and (2) of Section 64, but the latter takes within its sweep the entire amending Act. The rule of construction in such cases is that if the enacting clause is plain and unambiguous, it must be given its full effect and its meaning and application cannot be cut down by reference to the non obstante clause; the enacting clause must, where it is clear, be taken to control the non obstante clause; See Aswini Kumar v. Arabinda Bose, AIR 1952 SC 369 at pp. 376. 377; Dominion of India v. Shrinbai, AIR 1954 SC 596 at pp. 599-600 and Kanwar Raj v. Pramod, AIR 1956 SC 105 at p. 108. In Shrinbai's case AIR 1954 SC 596 the question related to construction of Section 3 of the Ordinance 19 of 1946. That section reads as follows:

'Section 3. Continuation of requisitions. Notwithstanding the expiration of the Defence of India Act, 1939 (XXXV of 1939), and the rules made thereunder, all requisitioned lands shall, continue to be subject to requisition until the expiry of this Ordinance and the appropriate Government may use or deal with any requisitioned land in such manner as may appear to it to be expedient.'

It was argued in that case on the basis of the non obstante clause that Section 3 only continued requisitions which would have expired because of the expiration of the Defence of India Act, 1939, and that it did not continue a requisition order which would have ceased to be operative and come to an end by reason of the limitation of time contained in the order itself. This contention was negatived on the ground that when the words of the enactment are clear their operation cannot be cut down by the non obstante clause which in such cases must be taken to be inserted by way of abundant caution. To quote their Lordships:

'If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof a non obstante clause cannot cut down that construction and restrict the scope of its operation. In such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution and not by way of limiting the ambit and scope of the operative part of the enactment.'

As the enacting words in Sub-section (3) of Section 64 are plain and unambiguous and are open to only one interpretation, the rule of construction stated above applies with full force. The effect of the enacting words cannot be cut down by the non obstante clause. Had the intention of the Parliament in enacting Sub-section (3) been to merely exclude the operation of the new provisions introduced in Sub-sections (1) and (2), that intention could have been easily expressed by saving that amendments introduced in Sub-sections (1) and (2) by the amending Act shall not apply to pending appeals But Sub-section (3) is not drafted in that form as an exception to subsections (1) and (2), and the words used in it make the entire amending Act inapplicable to a pending appeal. For these reasons, we do not accept the contention of the learned counsel for the petitioner that the words 'as if that Act had not been passed' should be construed as restricted to the changes brought about by the amending Act in Sub-sections (1) and (2). As already stated, these words plainly refer to the whole of the amending Act and none of the provisions of the amending Act can be taken into account while deciding a pending appeal.

12. The argument of the learned counsel for the petitioner that Section 68-F (1D) overrides Section 64 (3) as it is contained in Chapter IV-A and must have application even in a Pending appeal is also without any substance Section 68-F (1D) does not say that it will apply to appeals pending at the time of the coming into force of the amending Act and, therefore, there is no inconsistency between that provision and Section 64 (3) and no question of giving to it any overriding effect arises under Section 68-B. Both the provisions which were inserted by the same amending Act can stand together and in view of Section 64 (3), Section 68-F (1D) must be construed to have no application to any pending appeal as the appeal is to be decided as if the amending Act had not been passed.

13. Lastly, it was contended that even ignoring Sub-section (4) of Section 58 inserted by the amending Act the renewal of a permit would take effect from the date of expiry of the permit and not from the date of actual renewal. It is not possible to accept this argument. In Shree Laxmi Bus Transport Co. v. Regional Transport Authority, Rajkot (1960) 62 Bom LR 958 it was held by the Bombay High Court on a consideration of the relevant provisions as they stood before amendment that the period of renewal of a permit takes effect not from the date of the expiry of the permit but from the date on which it is actually renewed. And in M. S. R. T. Corporation v. B. R. M, Service AIR 1969 SC 329, it was held by the Supreme Court that the date of the commencement of the period of a permit would be the date on which the permit is actually issued. In coming to this conclusion the Supreme Court expressly approved the decision of the Bombay High Court in Shree Laxmi Bus Transport Company's case (1960) 62 Bom LR 958. The point is thus concluded against the petitioner and it has to be held that under Section 58, as it stood before its amendment by the amending Act of 1969, the period of renewal of a permit started not from the date of its expiry but from the date of actual renewal. In view of this legal position, the permit was validly renewed from 11th February 1972 to 10th February 1975 in pursuance of the order passed by the Appellate Authority.

14. All the contentions raised by the learned counsel for the petitioner thus fail. The petition is accordingly dismissed. The Company (respondent No. 3) shall have its costs of this petition from the petitioner. Counsel's fee Rs. 200/-, if certified. The outstanding amount of the security deposit, if any, shall foe refunded to the petitioner.


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