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Gulab Chand Gupta Vs. Regional Transport Authority and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. Nos. 199 and 869 of 1973 and 222 of 1972
Judge
Reported inAIR1975MP212
ActsMotor Vehicles Act, 1939 - Sections 57, 57(3), 68E, 68F(1C), 68F(1D) and 68F(2)
AppellantGulab Chand Gupta
RespondentRegional Transport Authority and ors.
Appellant AdvocateS.Q. Hasan, Adv.
Respondent AdvocateV.S. Dabir, Adv.
DispositionPetition dismissed
Cases ReferredPahlajrai Narayandas v. State Transport Appellate Authority Gwalior
Excerpt:
.....is 'to strain at a gnat after swallowing a camel. 22. in the result, the petition must fail and is hereby dismissed with..........shown for the purposes of curtailment or cancellation, he would be a left-out operator to whom the state transport undertaking did not desire to exclude. he was after all an existing operator and if his exclusion was desired, he should have been shown in the approved scheme.4. in advancing this contention, the petitioner has overlooked the dictum of this court in premchand v. state of m. p., 1965 mplj 434 = (air 1965 madh pra 196) to the following effect :'it was particularly brought to our notice that, while the permits held by khillumal and m. p. speedways for the lashkar-bhind route were to be cancelled, the one held by jagannath prasad for the same was left untouched. the short answer to the second part of this contention is that jagannath prasad obtained his permit after the.....
Judgment:

Malik, J.

1. These three petitions were heard together. The petitioners in these petitions have been affected by the implementation of the nationalization scheme No. 24. Their permits have either been curtailed or cancelled and, therefore, they have come to this Court seeking a writ of certiorari for the purpose of quashing the orders of the Regional Transport Authority affecting them,

To begin with Gulabchand Gupta, he seeks a writ of certiorari to quash the order of the Secretary, Regional Transport Authority, Rewa (his Annexure 'D') dated the 14th July, 1970, whereby his permit has been curtailed, and that of the Regional Transport Authority dated the 19th October, 1972 (His Annexure 'G'), whereby the renewal of permit for the whole route has been refused, The Regional Transport Authority has instead renewed the permit for the curtailed route.

2. The petitioner, Gulab Chand Gupta, held a stage carriage permit on Mou-ganj Sonouri route via Deotabab-Garh-Sohagi-Teonthar-Sohagi-Chak as indicated in his Annexure 'C'. The permit was granted in 1969 and was valid upto 31-7-3972. The grant was, however, made after the publication of the proposed scheme No. 24. The proposed scheme is petitioner's Annexure 'A' and it was published in 1964. The scheme was finalized six years after and was published on 6-3-1970, Under the final approved scheme (Petitioner's Annexure 'B'), as read and construed by the Regional Transport Authority, the routes -- Rewa-Mouganj-Hanu-mana and Rewa-Mangaon-Chak were reserved for exclusive operation by the Madhya Pra-desh State Road Transport Corporation. The Regional Transport Authority, for the purpose of giving effect to the approved scheme, acting under Sub-section (2) of Section 68-F of the Motor Vehicles Act, ordered curtailment of the petitioner's permit insofar as it overlapped the nationalized routes. The petitioner has a grievance to make about these orders.

3. The first contention of the petitioner is that his permit could not be cur-failed without notice to him and without affording him an opportunity to make representation. Since in the final scheme, his permit has not been shown for the purposes of curtailment or cancellation, he would be a left-out operator to whom the State Transport undertaking did not desire to exclude. He was after all an existing operator and if his exclusion was desired, he should have been shown in the approved scheme.

4. In advancing this contention, the petitioner has overlooked the dictum of this Court in Premchand v. State of M. P., 1965 MPLJ 434 = (AIR 1965 Madh Pra 196) to the following effect :

'It was particularly brought to our notice that, while the permits held by Khillumal and M. P. Speedways for the Lashkar-Bhind route were to be cancelled, the one held by Jagannath Prasad for the same was left untouched. The short answer to the second Part of this contention is that Jagannath Prasad obtained his permit after the publication of the scheme and his permit would, therefore, be equally affected by the scheme.'

The same view was reiterated in Pannalal and Sons v. Regional Transport Authority, Rewa Misc. Petn. No. 317 of 1967 DA 24-8-1967 (Madh Pra) and Prahlaj Rai Narayan Das v. State of M. P. Misc. Petn. No. 172 of 1970, DA 5-11-1971 (Madh Pra), which related to the very scheme No. 24. The position is now well settled that a person obtaining permit after the publication of the proposed scheme, would be affected by the scheme as finally accepted. This was the view prevailing since prior to the intro-duction of Sub-sections (1-A) to (1-D) into the body of the Section 68-F of the Motor Vehicles Act.

5. The effect of the amendment, as introduced by the Amending Act 56 of 1969 (with effect from 3-2-1970), on the existing permits is provided for in the proviso to Section 68-F (1-D) which says that the renewal of such a permit in relation to a notified route shall be for a limited period and the renewal shall cease to be effective on the publication of the scheme under Sub-section (3) of Section 68--D. In our construction of the provisions (1-A) to (1-D) the intention appears to be clear that after the scheme is proposed, the Regional Transport Authority can give temporary permits alone, either to the State Transport undertaking under Sub-section (1-A) to meet the increased pressure on the route, or where the State undertaking does not ask for temporary permits, to a private operator under Sub-section (1-C). The duration of such temporary permit granted, does not go beyond the date of publication of the approved scheme but ceases as soon as the approved scheme is published. Thereafter, the approved scheme has to be implemented as the law, and the Regional Transport Authority has to take steps under Sub-section (2) of Section 68-F. He may then refuse renewal, cancel the existing permits, or curtail the route.

6. The petitioner's permit which was granted after the proposed scheme was published, and which was to be affected by the finalized scheme, was an 'existing permit' within the meaning of Sub-section (2) of Section 68-F, and had to be treated in the same manner as those proposed for curtailment or cancellation in the scheme itself. The proviso to Sub-section (1-D) deals with all types of permits, temporary or regular, which arc to be affected by the scheme; and the permit granted after the publication of the proposed scheme, is one definitely falling within the purview of the proviso.

7. The learned counsel for the petitioner tried to invoke the dictum of Baluram Daluram's case, Baluram Daluram v. State of Madhya Pradesh 1967 MPLJ 539 = (AIR 1967 Madh Pra 130) and argued that since the approved scheme had omitted to mention the petitioner's permit for cancellation or curtailment, it might well be presumed that the State undertaking did not desire to exclude him from the nationalized route.

8. In advancing this argument, the learned counsel did not draw a distinction between an operator who held a permit before the scheme was proposed and one who obtained a permit after the publication of the proposed scheme. The former, if left out from the proposal, raised a presumption that the scheme did not propose to affect him. But such a presumption would not be available to the latter who had to his knowledge the proposal of nationalization of a parti-cular route, subject to the final approval of which he had been granted a permit. The latter permit would automatically be affected by the approved scheme. That is what this Court held in Premchand v. State of Madhya Pradesh 1965 MPLJ 434.

9. The petitioner's second contention before us is that under the scheme, the two routes are not routes of exclusive operation for the State undertaking. To quote an instance, he says, that M/s Mubarak Ali Varisali's permit on Hanumana-Chak via Katra has been curtailed to some extent, but his permit remains operative on Hanumana-Katra. But a portion of Hanumana-Katra route overlaps the nationalized route from Hanumana to Mauganj. And once it is shown that there are permit holders who overlap even a portion of the nationalized route, the nationalized route ceases to be one of exclusive operation. If under the scheme itself, the route is shown to be of conjoint operation, the Regional Transport Authority, in implementing the scheme, would be within his authority to permit the private operators on the route. Reliance is placed on Samra-thmal v. Regional Transport Authority. In-dore AIR 1971 SC 1986.

10. The respondents have disputed the fact of Mubarak Ali Warisall overlapping a portion of the nationalized route. According to them, there is a direct route from Hanumana to Katra and no portion of that route overlaps the nationalized route. Be that as it may, under the scheme, the intention is unequivocally expressed that the routes Rewa-Chak and Rewa-Hanumana would be routes of exclusive operation for the State undertaking, As many as thirty three permits have been shown either for cancellation or for curtailment, and it is clear that the curtailment or ineffectiveness to which those thirty three permits are proposed to be subjected to, extends to the portion that overlaps the nationalized route. Without accepting that Mubarak Ali's permit overlaps the portion of the nationalized route even if it does, he is made a single exception, be that inadvertent or deliberate. But that would not make the nationalized route one of conjoint operation for all private operators. Nor will that authorise the R. T. A. to disturb the integrity of the nationalization scheme by permitting others to overlap portions of the nationalized route only because there is a solitary exception. Samrathmal's case under the circumstances would not apply.

11. The most relevant consideration is whether the scheme contemplated an exclusive right to run on certain route by the stage carriages of the State undertaking to the complete exclusion of the private operators (subject, however, to an exception or two provided in the scheme itself). If that is the position, the integrity of the notified scheme cannot be affected by grant of permits to private operators even if the grant overlapped only a small portion of the nationalized route. It would be relevant here to quote the observations of their Lordships of the Supreme Court in Mysore State Road Transport Corporation v. Mysore State Transport Appellate Tribunal AIR 1974 SC 1940.

'Any route or area either wholly or partly can be taken over by a State Undertaking under any scheme published, approved and notified under the provisions of Ch. IV-A of the Act inserted by Section 62 of Act 100 of 1956. If, therefore, the scheme prohibits private transport owners to operate on the notified area or route or any portion thereof, the Regional Transport Authority cannot either renew the permit of such private owners or give any fresh permit in respect of a route which overlaps the notified route. In considering the question whether when one Party has a monopoly over a route, a licence can be granted to any other party over any Part of that route, the distinction between 'route' and 'highway' is not at all relevant. Where a private transport owner makes an application to operate on a route which overlaps even a portion of the notified route, then that application has to be considered only in the light of the scheme as notified. If any conditions are placed then those conditions have to be fulfilled and if there is a total prohibition then the application must be rejected. There is no justification for holding that the integrety of the notified scheme is not affected if the overlapping is under five miles or because a condition has been stipulated in the permit that the operators will not pick up or set down any passengers on the overlapped route.'

12. The next contention of the petitioner's counsel is that no procedure has been prescribed under Sub-section (2) of Section 68-F for implementation of the approved scheme, as to in what manner the existing permits ought to be cancelled or curtailed, and whether the procedure contained in Section 57 of the Motor Vehicles Act ought to be followed on the application of the State undertaking for permit; or whether the procedure of Section 68-E ought to be followed, inasmuch as the existing permit holders were being affected by the scheme and that necessitated modification of the scheme so as to include the existing permit holders who were left out at the time the final scheme was published. The counsel says that the procedure of Section 68-E was the only right course to adopt. In inducting private operators on the route after the proposed scheme was published, the Regional Transport Authority must be presumed to have acted, keeping in mind the proposed scheme. It logically follows that even upon approval of the scheme, such permit holders ought to remain on the route. And if they have to be ousted, that could be done only by cancellation or modification of the scheme under Section 68-E.

13. The contention of the learned counsel in our view, is misleading. The grant of permits to the private operators after the publication of the proposed scheme was a grant made subject to the ultimate shape the final scheme was to be moulded into. Tf implementation of the approved scheme affected the grant, it must accordingly cease or be curtailed. It would be wrong to say that the grant would survive despite the scheme intending otherwise, because the grant was made though the proposed scheme was pub-lished. The provision of Section 68-E applies only when the approved scheme requires cancellation or modification and not where its implementation is desired. For implementation the Regional Transport Authority has to proceed under Sub-section (2) of Section 68-F. In what manner should he proceed is the next question, After the approval of the scheme, the Regional Transport Authority fust performs a ministerial function in granting permits to the State undertaking as soon as the undertaking applies for them. He has no quasi-judicial function, to perform because he has no option to refuse the grant. The provisions of Section 57 (3) are, therefore, not attracted. The Regional Transport Authority has only to verify that the application of the State undertaking is in order and that the grant is covered by the approved scheme. He need not thereafter publish the application for permit and invite objections from those who are to be affected. The existing permit holders are automatically affected by the approved scheme, except those and to the extent, saved by the scheme itself.

14. In proceeding under Sub-section (2) of Section 68-F, the Regional Transport Authority has no doubt to exercise his mind whether he must refuse to entertain the application for a grant, or refuse a renewal, or whether he has to cancel the permit or curtail it. In deciding this limited question, he acts quasi-judicially. He has in his mind the scheme and its implementation and how that ought to affect the existing permit holders. But once that decision is taken and the permits of the existing operators are lawfully cancelled or curtailed, and such cancellation or curtailment falls within the implementation of the approved scheme, it would not be open to them to come before this Court challenging the grant in favour of the State undertaking on the ground that the grant was made with certain procedural irregularities, say strict non-compliance with Section 42 or 57 (2). The existing operators must come to this Court only for protection of their rights; and if their rights have been lawfully extinguished, they should be unconcerned with some slight irregularity in the grant made in favour of the State undertaking.

15. Another contention of the petitioner is that the order curtailing the permit (Annexure 'D') was passed by Secretary, Regional Transport Authority, who had no jurisdiction to pass it. A representation was made against this order to the Regional Transport Authority who refused to consider it, and the successor-in-office declined to re-view it when an application for renewal was presented to him. The renewal was granted in respect of the curtailed route on the basis of Annexure 'D', which was an order without jurisdiction.

16. Petitioner's contention has little force. Firstly, the order curtailing the permit appears to have been passed by the Regional Transport Authority as is mentioned in Para 2 of the Order (Annexure 'D'). The Secretary was implementing the Regional Transport Authority's order passed on 7-7-1970. He was performing a ministerial job. The decision was taken by the Regional Transport Authority himself. Secondly, the Regional Transport Authority had jurisdiction to curtail the route under Sub-section (2) of Section 68-F for the purpose of giving effect to the approved scheme. It is no doubt true that the Regional Transport Authority should have exercised his powers after due notice to the existing operators before he passed the order (Annexure 'D'), but the defect in procedure should hardly matter when it was bound to be an idle formality. The Regional Transport Authority was bound to implement the scheme and curtail the permits of private operators as soon as the Madhya Pradesh State Road Transport Corporation asked for permits under Section 68-F (1). We should also take notice of the supervening circumstances that the petitioner allowed the order of curtailment to operate for long two years without taking any action and, presumably, withdrew his vehicles from the nationalized route. Since July, 1970, the route is exclusively occupied by the Madhya Pradesh State Road Transport Corporation. Under the circumstances, we may refuse to exercise discretion in favour of the petitioner relying on the following pronouncement of the Supreme Court in Gullappalli Nageshwar Rao v. State of Andhra Pradesh, AIR 1959 SC 1376 at p. 138-3:

'But, in view of the supervening circumstances, the High Court, while noticing this defect in the procedure followed by the Regional Transport Authority, refused to exercise its jurisdiction under Article 226 of the Constitution. Pursuant to the order of the Regional Transport Authority, the appellants withdrew their vehicles from the concerned routes and vehicles of the Road Transport Corporation have been plying on those routes. The judgment of this Court conclusively decided all the questions raised in favour of the respondents, and if the order of the Regional Transport Authority was set aside and the appellants were given another opportunity to make their representations to that Authority, it would be, as the High Court says, only an empty formality. As their vehicles have already been withdrawn from the routes and replaced by the vehicles of the Corporation, the effect of any such order would not only not be of any help to the appellants but Would introduce unnecessary complication and avoidable confusion. In the circumstances, it appears to us that, as the appellants have Failed all along the line, to interfere on a technical point of no practical utility is 'to strain at a gnat after swallowing a camel.'

We cannot, therefore, say that the High Court did not rightly exercise its discretion in this matter.'

17. In this view of the matter, we see no substance in Gulabchand's petition and dismiss it with costs. Counsel's fee Rs. 100/-. The balance of the security amount shall be refunded to him.

Pahlaj Rai Narayandas v. Regional Transport Authority, Rewa Misc. Petn. No. 222 of 1972:

18. Petitioner Pahlajrai held a permit No. P. St. Section 4/69 for Rewa-Hanumana via Lour-Naigarhi. This permit was granted after the proposed scheme No. 24 was published, The petitioner No. 2 Ugra Tara Motor Service liekwise held permit No. P. St. S. 28/69 for the same route. After the finalization of the scheme No. 24, the R. T. A. has by his order dated the 15th December, 1971 (Annexure 'G'), curtailed the permit so as to survive only one rout Lour-Han-umana via Naigarhi. The petitioners are aggrieved by that order.

19. The petitioners have raised the very same contentions as have been repelled by us in Gulabchand's case. We have held that the permits granted after the publication of the proposed scheme would be affected by the scheme as finalized, and that such permit-holders could not be placed in the category of those left out permit-holders who were on the route at the time of the publication of the proposed scheme. We have also held that the scheme was of exclusive operation by the M. P. S, R. T. C., and the routes from which the petitioners have been excluded, could not be treated as for conjoint operation even if Mubarak Ali Varisali was a single exception. We also said that the existing operators, to whom permits were granted after the publication of the proposed scheme, would be covered by the provisions of the Section 68-F (2) for the purposes of cancellation or curtailment when action is taken towards implementation of the scheme as finalized. Their claim that their permits could be cancelled or curtailed by a modified scheme as contemplated by Section 68-E, has been negatived by us.

20. The only contention that remains to be considered is that according to the petitioners, the Regional Transport Authority having passed an order on 17-11-1971 towards the implementation of the finalized scheme, was functus officio and he could not pass a second order of 15th December, 1971.

21. We see no substance in this contention, Implementation of the scheme is a continuing process and as and when it is brought to the notice of the R. T. A. that private operation is continuing in breach of the scheme, he can legitimately exercise jursdiction to remedy the breach. The R. T. A had cancelled certain permits by his order dated the 17th November, 1971. The Madhya Pradesh State Road Transport Corporation then brought to his notice that the approved scheme affected the permits granted after publication of the proposed scheme and that such was the decision given in Miscellaneous Petition No. 172 of 1970 by the High Court. The R. T. A. then heard the permit holders to be affected by his order and passed the order dated the 15th December, 1971. The approved scheme was the law and it could not die out if the R, T. A. had omitted by inadvertence to cancel or curtail certain permits affected by the scheme. The R. T. A. could exercise jurisdiction towards implementation of the scheme which was the law.

22. In the result, the petition must fail and is hereby dismissed with costs. Counsel's fee Rs. 100/-. The balance of the security amount shall be refunded to the petitioners.

Misc. Petn. No. 869 of 1973 (Madh Pra): M/s. Pahlajrai Narayandas v. State Transport Appellate Authority Gwalior:--

23. Petitioner held a permit for Rewa-Hanumana route before the publication of the proposed Scheme No. 24. In the scheme, this permit was proposed for cancellation. But during the pendency of the finalization proceeding, the petitioner applied for extension of the permit from Hanumana to Hatta and the route that came to be described in the permit was Rewa-Hatta via Hanumana.

After the finalization of the scheme, the Regional Transport Authority and State Transport Authority have both refused renewal of the permit on the nationalized portion o the route i. e. Rewa to Hanumana. The petitioner's permit is kept alive for Hanumana to Hatta portion only. The petitioner contends that he should have been treated as a left-out permit holder since the extended route Rewa to Hatta was not shown in the scheme for cancellation or curtailment, and that till a modified scheme was published under Section 68-E nationalizing this route, he deserved to be granted a renewal. Besides, he says that the route Rewa to Hanumana was one of conjoint operation. As an instance he quotes Mubarak Ali Varisali's case.

24. We see absolutely no substance in this petition. The petitioner's permit on route Rewa to Hanumana was proposed for cancellation in the scheme itself. Any extension granted was subject to the approval of the scheme. And as soon as the scheme was approved, his permit covering the portion of the nationalized route would stand cancelled.

25. The petitioner contends that he could be placed in the category of those permit holders mentioned in Clause 7 (c) of the Scheme, whose permits have been made ineffective by directing that they shall not pick up or drop passengers from any station on the nationalized route. Such was not the contention of the petitioner before the Regional Transport Authority or the State Transport Authority and this aspect could not be considered by them. But even if the petitioner desired a treatment contemplated by Clause 7 (c), he could not possibly claim it, for the simple reason that in the scheme itself his permit was shown for cancellation as item 13 of Clause 7 (a). The scheme had to be implemented in spirit and letter, as contained in the document. Where the scheme said that a particular permit would stand cancelled, the Regional Transport Authority could not possibly say that the same object could be served by directing that the permit holder shall not pick up or set down passengers from the overlapping route. The integrity of the scheme would nonetheless be affected if the Regional Transport Authority took such a step. This is not permissible.

26. The petition must, therefore, be dismissed with costs. Counsel's fee Rs. 100/-. The balance of the security amount shall be refunded to the petitioner.


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