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Gopal Das and Etc. Vs. Regional Transport Authority and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. Nos. 1465, 1494 and 1496 of 1984
Judge
Reported inAIR1985Raj180
ActsMotor Vehicles Act, 1939 - Sections 68D, 68D(2), 68D(3), 68F(1A), 68F(1B) and 68F(1C); Constitution of India - Article 226
AppellantGopal Das and Etc.
RespondentRegional Transport Authority and ors.
Appellant Advocate S.M. Mehta and; Fassiuddin, Advs.
Respondent Advocate N.L. Jain, Adv. General and; N.B. Mathur, Adv.
DispositionPetition allowed
Cases ReferredAbdul Basheer v. T. Veeranna
Excerpt:
- - (1) .(1-a) where any scheme has been published by a state transport undertaking under section 68c, that undertaking may apply for a temporary permit, in respect of any area or route or portion thereof specified in the said scheme, for the period intervening between the date of publication of the scheme and the date of publication of the approved or modified scheme, and where such application is made, the state transport authority or the regional transport authority, as the case may be shall, if it is satisfied that it is necessary to increase, in the public interest, the number of vehicles operating in such area or route or portion thereof, issue the temporary permit prayed or by the state transport undertaking. (c) if no application for temporary permit is made by the corporation..........said act, is it legally permissible for the authority concerned to issue a temporary permit to the state transport undertaking on the basis of its application made after the expiry of the aforesaid period of one week?2. the undisputed facts in the three writ petitions may be shortly stated here. the rajasthan state road transport corporation, which is the state transport undertaking for the state of rajasthan, prepared a scheme of nationalisation of passenger road transport on bayana-kalsada-talchidi-todabhim route (66 kilometers in length), and published it in the official gazette in accordance with the provisions of section 68c, m. v. act, 1939 (for short, the act) in the year 1976. the regional transport authority (rta) fixed a scope of 5 stage carriages with 4 return trips on this.....
Judgment:
ORDER

K.S. Sidhu, J.

1. The fate of the three writ petitions, listed above, depends on answer to a question of law which may be formulated as -follows:

If a State Transport Undertaking does not make an application under Section 68F(1-A), M. V. Act, 1939, for a temporary permit for plying a stage carriage, till the expiry of one week from the date on which the order of approval of a scheme of nationalisation of passenger transport is made under Sub-section (2) of Section 68D of the said Act, is it legally permissible for the authority concerned to issue a temporary permit to the State Transport Undertaking on the basis of its application made after the expiry of the aforesaid period of one week?

2. The undisputed facts in the three writ petitions may be shortly stated here. The Rajasthan State Road Transport Corporation, which is the State Transport Undertaking for the State of Rajasthan, prepared a scheme of nationalisation of passenger road transport on Bayana-Kalsada-Talchidi-Todabhim route (66 kilometers in length), and published it in the Official Gazette in accordance with the provisions of Section 68C, M. V. Act, 1939 (for short, the Act) in the year 1976. The Regional Transport Authority (RTA) fixed a scope of 5 stage carriages with 4 return trips on this route under Section 47(3) of the Act. Two private operators were already holding two permits for plying their stage carriages on this route at the time of the publication of the draft-scheme under Section 68C. There was thus still scope left for three more stage carriages with two return trips on this route. The draft scheme of nationalisation of this route which had been published in 1976 was approved under Section 68D(2) on Feb. 28, 1980. Curiously enough, the scheme as approved under Section 68D(2) has not so far been published by the State Government in the Official Gazette under Section 68D(3), with the result that notwithstanding the order of approval, dt. Feb. 28, 1980, the scheme of nationalisation has not yet become final and cannot be treated as an 'approved scheme' and the route in question cannot be called a 'notified route' as envisaged by Section 68D(3) of the Act.

3. It is common ground between the parties that the Rajasthan State Road Transport Corporation (for short, the Corporation) didnot make any application under Section 68F (1-A) of the Act for temporary permit on this route till Aug. 1984. The, three petitioners herein had, however, obtained three temporary permits under Section 68F (1-C) on and after Oct. 23, 1980. Those permits were renewed from time to time in their favour, each renewal being of four months' duration. The latest renewal of their temporary permits expired on Sept. 19, 1984. They applied for further renewal. The Corporation also applied for three temporary permits on this route under Section 68F(1-A) of the Act for the first time in Aug. 1984. The RTA considered the petitioners' applications under Section 68F(1-A) in a meeting held on Sept. 19, 1984. By its order, dt. Sept. 27, 1984, the RTA rejected the applications of the petitioners and consequently refused to renew their temporary permits beyond Sept. 19, 1984. Instead, the RTA granted three fresh temporary permits to the Corporation in the purported exercise of its powers to issue such permits under Section 68FI 1-A) of the Act.

4. The petitioners have filed their respective writ petitions under Article 226 of the Constitution challenging the validity of the orders of the RTA, dt. Sept. 27, 1984, issuing the temporary permits to the Corporation and rejecting the petitioners' applications for renewal of their temporary permits to ply their vehicles on this route. They are seeking writs directing the RTA to cancel the temporary permits issued to the Corporation, and to renew their temporary permits to enable them to ply their stage carriages on this route.

5. Mr. N.L. Jain, the Advocate-General for the State of Rajasthan entered appearance on behalf of the Corporation, and opposed the writ petitions at the admission stage itself. Both sides agreed that since the decision of the petitions depended on answer to the question of law as formulated and stated at the outset of this judgment, the petitions may be finally disposed of at this very stage.

6. After hearing Mr. Mehta, learned counsel for the petitioners, and the learned Advocate General on behalf of the Corporation, I am of opinion that the answer to the question stated in the opening paragraph of this judgment must be in the negative and against the Corporation, and that, therefore, the temporary permits in question issued by the RTA to the Corporation must be quashed. The RTA must therefore be directed to consider the applications of the petitionersfor renewal of their temporary permits which expired on Sept. 19, 1984, and grant or refuse the renewal on the merits of each particular case.

7. The issue of temporary permits, pending the finalisation of a draft scheme of nationalisation, published under Section 68C is governed by Section 68F of the Act. Sub-sections (1 A), (1-B), (1-C) and (1-D) of Section 68F, which are relevant, may be reproduced here for convenience of reference.

68F. Issue of permits to State Transport undertakings.

(1) ...............

(1-A) Where any scheme has been published by a State Transport Undertaking under Section 68C, that Undertaking may apply for a temporary permit, in respect of any area or route or portion thereof specified in the said scheme, for the period intervening between the date of publication of the scheme and the date of publication of the approved or modified scheme, and where such application is made, the State Transport Authority or the Regional Transport Authority, as the case may be shall, if it is satisfied that it is necessary to increase, in the public interest, the number of vehicles operating in such area or route or portion thereof, issue the temporary permit prayed or by the State Transport Undertaking.

(1-B) A temporary permit issued in pursuance of the provisions of Sub-section (1-A) shall be effective-

(i) if the scheme is published under Sub-sec. (3) of Section 68D until the grant of the permit to the State Transport Undertaking under Sub-sec. (1), or

(ii) if the scheme is not published under Sub-section (3) of Section 68D, until the expiration of the one week from the date on which the order under Sub-section (2) of Section 68D is made.

(1-C) If no application for the temporary permit is made under Sub-section (1-A), the State Transport Authority or the Regional Transport Authority, as the case may be, may grant, subject to such conditions as it may think fit, temporary permit to any person in respect of the area or routes or portion thereof 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.

(1-D) 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 68C of any scheme and the date ofpublication 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 :.....'

8. A combined reading of the four subsections of Section 68F reproduced above would bring out a few propositions which are too plain to need any argument. These are : --

(a) Temporary permits may be issued by the RTA during the period intervening between the date of publication of the draft scheme under Section 68C and the date of publication of the approved scheme under Section 68D)(3).

(b) The State Transport Undertaking (i.e the Corporation in the instant case) enjoys preference in the matter of obtaining such permits. If it applies for such a permit under Section 68F (1-A), the RTA is charged with a mandatory duty (mark the words 'shall issue the temporary permit prayed' occurring in Section 68F( 1-A) to issue the same. He has no option but to issue such a permit to the Corporation.

(c) If no application for temporary permit is made by the Corporation under Section 68F (1-A), the RTA may grant such a permit, subject to such conditions as the RTA thinks fit, to any person including an individual owner like the petitioners.

(d) A temporary permit issued to the Corporation under Section 68F (1-A) shall be effective until the grant of a non-temporary permit in its favour after the date of publication of the approved scheme under Section 68D(3). If the approved scheme is not published under Section 68D(3), as in the instant case, then the temporary permit issued to the Corporation under Section 68F(1-A) shall be effective until the expiration of one week from the date on which the order under Section 68D(2) had been made.

9. Let us now examine the instant case in the light of the aforesaid proposition. As already stated, the draft scheme in respect of this route was published as required by Section 68C, in 1976. It was approved under Section 68D(2) on Feb. 28, 1980. It has however not been published so far under Section 68D(3) with the result that in spite of its approval on Feb. 28, 1980, it cannot be called an 'approved scheme' and the route in question cannot be treated as a 'notified route' as contemplated by Section 68D(3) of the Act. No non-temporary permit can therefore be granted by the RTA to the Corporation in respect of this route underSection 68F(1) of the Act. He may however issue temporary permits for this route in accordance with the provisions of Section 68F (1-A) or 68F (1C), whichever is applicable.

10. The Corporation did not make any application under Section 68F(1-A) for a temporary permit against the three remaining vacancies, as determined by the RTA, till Aug., 1984. It was precisely for that reason that the RTA entertained the applications of the petitioners under Section 68F(1-C) in Oct. 1980, and granted temporary permits to them, and renewed the same from time to time, till Sept. 19, 1984. Bearing these facts in mind, the question which arises for decision is whether the RTA had power or jurisdiction to issue temporary permits to the Corporation in Aug. 1984 when the Corporation applied for such permits for the first time. Had the Corporation applied for and obtained such permits before the approval of the draft scheme under Section 68D(2), i.e., before Feb. 28, 1980, the said permits would have ceased to be effective on and from Mar. 8, 1980, i.e., with effect from the date coinciding with the date of expiry of one week from Feb. 28, 1980, as laid down by Section 68F(1B)(ii) of the Act reproduced in an earlier part of this judgment If the issue of temporary permits to the Corporation before Feb. 28, 1980, would have lost all validity under Section 68F(1-B)(ii) after Mar. 7, 1980, it would be absurd to hold that the Corporation is still competent to apply for and the RTA is competent to issue to it such permits after Mar. 7, 1980. Therefore, I have no hesitation to hold that the application by the Corporation for temporary permits made in Aug. 1984 for the first time, was not maintainable in law and the RTA was not legally competent to issue such permits to it on Sept. 27, 1984. The RTA had already granted temporary permits to the petitioners in Oct. 1980, under Section 68F(1-C) on the implied footing that the Corporation had not made any application for such permits before Mar. 8, 1980, and had thus disqualified itself from making any such application thereafter. It is somewhat surprising therefore that the RTA chose to entertain the application of the Corporation in Aug. 1984, and issue temporary permits to it in Sept. 1984 by displacing the petitioners who had been plying their stage carriages on this route on the basis of temporary permits issued to them in Oct. 1980 and renewed thereafter from time to time till Sept. 19, 1984. This is not to suggest that the petitioners cannot be displaced underany circumstances. If the Corporation finds that it is in public interest to displace them and the State Government agrees with the Corporation in that behalf, all that the State Government has to do, and which it could have easily done at any time during the last nearly 4% years since Feb. 28, 1980 (i.e. the date of approval of the draft scheme under Section 68D(2)), is to publish the scheme under Section 68D(3), and thus convert it into an approved scheme having the force of law. The omission of the State Government all these years in not publishing the scheme under Section 68D(3) of the Act induces me to think that the State Government changed its mind after Feb. 28, 1980, and is no longer interested in nationalising this route. It appears to prefer the uncertainty and confusion which it created by approving the scheme under Section 68D(2) and withholding final approval under Section 68D(3) of the Act. It is earnestly hoped that the State Government will either finalise and formalise the scheme by publishing it under Section 68D(3) or scrap it altogether so as to restore the position as it existed prior to the publication of the scheme under Section 68C of the Act.

11. Mr. Mehta, learned counsel for the petitioners cited a few rulings in support of his contention that a temporary permit granted to a private operator under Section 68F( 1-C), is valid until a non-temporary permit is issued to the Corporation under Section 68F(1) of the Act, and that since the scheme has not so far been finalised and approved under Section 68D(3), and since it is not yet competent to the RTA to issue any non-temporary permit to the Corporation under Section 68F(1), the temporary permits issued to the petitioners under Section 68F( 1C) are therefore valid till date. One of the rulings relied upon is reported in Sayed Jeelan v. S. T. A. Tribunal, Andhra Pradesh. AIR 1982 Andh Pra 220. A Division Bench of the Andhra Pradesh High Court held in the cited case that the word 'permit' in the collocation of words 'shall cease to be effective on the issue of a permit to the State Transport Undertaking' occurring in Sub-section (1-C) of Section 68F means a pucca or non-temporary permit, and does not include a temporary permit, and that therefore a temporary permit issued to a private operator under Section 68F(1C) stays valid till a pucca or non-temporary permit is granted in favour of the Corporation under Section 68F(1). This is a proposition with which one may broadly agree, but then if the RTA, while issuing the temporary permit to a privateoperator under Section 68F(1-C), himself subjects such grant to a condition as to the duration of the temporary permit issued by him, it is obvious that he can do so, for Section 68F(1-C) itself lays down that the temporary permit may be issued subject to such conditions as the RTA thinks fit, and the condition as to duration of the temporary permit is certainly one of the conditions coming within the purview of the conditions envisaged by Section 68F(1-C). I am therefore not prepared to hold as an absolute proposition, that a temporary permit granted under Section 68F(1-C) does not admit of being limited in duration for a period less than the period ending with the grant of a pucca or non-temporary permit to the Corporation under Section 68F(1) of the Act.

12. Another authority cited at the bar which may be mentioned here is Abdul Basheer v. T. Veeranna, AIR 1984 Kant 84. I have carefully studied the reported judgment in the cited case and find that it does not contain anything which may be helpful to us in the decision of the case in hand. Learned Advocate General relied on this ruling in support of his contention that a temporary permit issued to a private operator under Section 68F(1-C) must cease to be effective on the expiry of one week from the date on which the order under Section 68D(2) is made. It is true that there are certain observations in the cited judgment which support the argument of the learned Advocate General. I must however, frankly say that I do not find any warrant in the language of Sub-section (1C) of Section 68.F to hold that a temporary permit issued to a private operator thereunder ceases to be effective on the expiry of one week from the date on which the order under Section 68D(2) is made. It is true that a temporary permit issued to the Corporation under Section 68F(1A) ceases to be effective on the expiry of one week from the date on which the order under Section 68D(2) is made. This is so because Section 68F(1B)(ii) expressly enacts such a limitation on the duration of a temporary permit issued under Section 68F(1-A). No such limitation may lawfully be extended to a temporary permit issued under Section 68(1-C). I am not aware of any rule of interpretation of statutes which would justify the extension of the limitation expressly enacted in relation to temporary permits issued under Section 68F(1-A), to temporary permits issued under Section 68F(1-C). On the other hand, any such extension by the court may rob Section 68F(1C) of all its utility. For example, if the Corporation does not apply for any temporary permit under Section 68F(1A) until the expiry of one week from the date of the order under Section 68D(2), it may be argued,on the basis of the aforementioned extension of limitation, that no temporary permit can be issued to a private operator after the expiry of one week from the date of the order under Section 68D(2). The Legislature could not have intended to create a situation of total absence of any road transport facility on a particular route and, in fact, it has not acted in that manner. As already stated, Section 68F(1C) is not subject to the limitation enacted in Section 68F(1-B)(ii). The contrary observations of the Karnataka High Court in the cited case do not, it is respectfully submitted, contain a correct statement of law.

13. Learned Advocate General contended as a last resort that these writ petitions are liable to be dismissed on the short ground that although the State of Rajasthan is a necessary party, yet it has not been impleaded as such. I do not see how the State of Rajasthan is a necessary party in this case. The petitioners do not seek any writ, order or direction against the State of Rajasthan. These are applications for the issue of a writ of certiorari for bringing up the impugned order, dt. Sept. 27, 1984, made by a quasi judicial authority (i.e. the RTA) and quashing it. The State of Rajasthan need not have been impleaded as a party and therefore it has not been impleaded as such. This contention of the learned Advocate General also therefore fails.

14. In conclusion, the writ petitions are allowed and consequently, the impugned order, dt. Sept. 27, 1984, made by the RTA is set aside. The RTA is directed to consider afresh the applications of the three writ petitioners for renewal of their temporary permits issued under Section 68F(1-C) of the Act for such period as permissible under law and subject to such other conditions as the RTA thinks fit in the interest of the travelling public. He shall decide those applications ignoring the application made by the Corporation in Aug. 1984, within a period of one week from the date of the receipt of this order by him. The parties are left to bear their own costs in these writ petitions.


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