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Srinath Sharma Vs. State Transport Appellate Tribunal, Rajasthan, Jaipur and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 78 of 1977
Judge
Reported inAIR1977Raj221; 1977()WLN448
ActsMotor Vehicles Act, 1939 - Sections 62(1), 64(1) and 68F(1C); Constitution of India - Article 226
AppellantSrinath Sharma
RespondentState Transport Appellate Tribunal, Rajasthan, Jaipur and ors.
Appellant Advocate L.L. Sharma, Adv.
Respondent Advocate O.P. Sharma, Adv. for Respondent No. 3; R.N. Munshee, Adv.
DispositionPetition dismissed
Cases ReferredBherulal v. State Transport Appellate Tribunal
Excerpt:
.....to respondent no. 3, could not be objected to on the ground that a portion of the route, i.e. kota-tater-dhabri was comprised in the route of draft scheme under section 68-c of the act.;the existence of permanent vacancy and a temporary need can co-exist. there may be circumstances in which both may co-exist and in that case, the grant of temporary permit would be permissible.;(c) constitution of india - article 226 and motor vehicles act, 1939--section 62 & 68f tribunal's decision neither perverse nor capricious--held, high court not to sit in appeal under article 226 and it cannot be interfered.;this decision by respondent no 1 is based on the assessment of the various facts and circumstances and being within its jurisdiction, cannot be interfered with by this court unless it..........3, 1976 the said scheme has not yet been approved under section 6-8-d of the act.4. there is a kota-tater-dhabri-magrol route on which the petitioner along with certain other persons is operating. this route of kota-mangrol overlaps the notified route under section 68-d of kota to kasbathana from kota up to tater. it also overlaps the route of draft scheme under section 68-c of the act of kota to khatoli from kota to dhabri via tater. the portion from dhabri to mang-rol is not on a route under section 68-d or 68-c of the act.5. it appears that prior to 1971, there was a scope of 4 buses and three services on kota-mangrol route. this has now been revised to 7 buses with six return services. the regional transport authority has granted two temporary permits on this kota-mangrol route.....
Judgment:
ORDER

Rajindar Sachar, J.

1. This is a petition under Article 226 of the Constitution seeking a direction to quash and set aside the order of respondent No. 1, State Transport Appellate Tribunal, Jaipur, dated March 7, 1977, by which it has granted a temporary permit to respondent No. 3 on Kota-Mangrole route and to quash the permit issued to it.

2. A draft scheme under Section 68-C of the Motor Vehicles Act, 1939 (hereinafter called 'the Act') for nationalisation of a number of routes was published on April 24, 1973. One of the routes published (with which we are concerned) was Kota-Kasbathana via Tater. The distance between the Kota Municipal limits and Tater is 6.5 kilometers. The objections to the draft scheme came to be considered by the Joint Legal Remembrancer, who, by order dated May 7, 1976, approved the scheme with the modifications etc. mentioned in the said order. One of the points pressed before him was that asTater is only at a distance of 6.5 kilometers from the Municipal Council, Kota, overlapping by private buses up to Tatev, should be allowed. The said plea was accepted by him and he therefore held,--

'..... in public interest, I consider itappropriate that upto Tater the buses of private operators shall be allowed to pass and there shall be no curtailments from the permits. To this extent theseconcessions shall be available not only to existing operators but to others also, who may be allowed to bifurcate their route from this traffic point.'.

The said scheme was approved and published under Section 68-D of the Act on June 15, 1976. A further corrigendum was issued to the said notification by the Government notification of July 16, 1976. As a consequence, cls. 4 and 5 of the scheme provided that excepting the State Transport Undertaking and State Transport Undertakings of other States either under existing inter-State agreements or inter-State agreements to be entered into future and also operators on the existing amalgamated route of Kota-Khatoli-Gota-Piploda route and other routes which bifurcate from Tater, no other person will be entitled to ply stage carriage on this route.

3. A draft scheme under Section 68-C of the Act for the route Kota-Khatoli via Tater-Dhabri has also been published on April 3, 1976 The said scheme has not yet been approved under Section 6-8-D of the Act.

4. There is a Kota-Tater-Dhabri-Magrol route on which the petitioner along with certain other persons is operating. This route of Kota-Mangrol overlaps the notified route under Section 68-D of Kota to Kasbathana from Kota up to Tater. It also overlaps the route of draft scheme under Section 68-C of the Act of Kota to Khatoli from Kota to Dhabri via Tater. The portion from Dhabri to Mang-rol is not on a route under Section 68-D or 68-C of the Act.

5. It appears that prior to 1971, there was a scope of 4 buses and three services on Kota-Mangrol route. This has now been revised to 7 buses with six return services. The Regional Transport Authority has granted two temporary permits on this Kota-Mangrol route (the same however is not under challenge before me) and need not concern us.

6. As there was scope for one permit, respondent No. 3 applied on Jan. 29, 1977 for a temporary permit under Section 68-F (1-C) and Section 62 (1) (c) of the Act on the ground that there is shortage of buses to cope up with the increased traffic from Kota to Mangrol via Sultan-pur-Dhabri to Swali. This application was rejected by the RuleT.A. on Feb. 11, 1977 on the ground that there was no temporary need and also because part of the route had been notified and that part of the route has been notified under Section 68-C. Respondent No. 3 was aggrieved and went in appeal before respondent No. 1 which by its order dated March 7, 1977, has granted temporary permit for a period of 4 months to respondent No. 3 with the condition that the same will be invalid when the Rajasthan State Road Transport Corporation's buses start on the route or a part of the route under nationalisation scheme. The petitioner is aggrieved and has come up to this court challenging the grant of the impugned temporary permits to respondent No. 3.

7. Section 68-FF of the Act puts a restriction on the grant of permit in respect of a notified route. Proviso to Section 68-FF however permits that where no application for grant of permit has been made by the State Transport Undertaking, a temporary permit may be granted to a person in respect of the said notified area subject to the condition that such permit shall cease to be effective on the issue of a permit to State Transport Undertaking. Section 68-F (1-A) provides that where any scheme has been published by the State Transport Undertaking under Section 68-C, the said Undertaking may apply for temporary permit in respect of any area, route or portion thereof specified in the scheme and the State Transport Authority shall grant the temporary permit. Sub-section (1-C) of Section 68-F further provides that if no application for a temporary permit is made under Sub-section (1-A), the SectionT.A. or the R.T.A. may grant temporary permit to any person in respect of the area or route or portion thereof specified in the scheme..... It is commonground that no application for a temporary permit has been made under sub-sec. (1-A) of Section 68-F for the route or a portion of the route from Kota to Kha-toli via Tater-Dhabri for which a scheme has been published under Section 68-C of the Act.

8. The contention by the learned counsel for the petitioner, Mr. Sharmaand Mr. Munshee, who was allowed to intervene in support of the petitioner, was that Kota to Kasbathana is a notified route of total exclusion barring from Kota-Tater but only for the existing operators at the time the scheme was approved in June 1976. The respondent No. 3, who had admittedly been given a permit in March 1977 could not have been thus given a temporary permit on Kota to Mangrol route which overlaps the portion of the notified route of Kota-Kasbathana from Kota to Tater. This argument naturally assumes that the portion of Kota to Tater of the notified route is a portion of total exclusion for all operators excepting those who were operating in June 1976. The counsel for the petitioner admits that the petitioner as well as some other operators who were plying at the time the scheme was approved and notified under Section 68-D, are operating on Kota-Mangrol route even at present, and thus overlap Kota to Tater, a portion of notified route. This they purport to justify by invoking to their aid paras 4 and 5 of the approved scheme published on June 15, 1976, along with the corrigendum of July 6, 1976. The petitioner wants to read paras 4 and 5 to mean that persons who were plying buses on Kota-Khatoli route as well as other routes, which bifurcate from Tater, were alone allowed to operate -on a portion of notified route of Kota-Kasbathana i. e., from Kota to Tater. Thus according to this argument, portion of Koto to Tater is not a portion of total exclusion so far as the then existing operators are concerned, but is a portion of total exclusion, so far as any other persons like the respondent No. 3 in future may seek to ply on portion. I cannot agree. A reference to the order of the Joint Legal Remembrancer dated May 7, 1976 will show that he was greatly impressed with the fact that the distance between Kota Municipal limit to Tater is only 6.5 kilometers and that he had been permitting the overlapping in other schemes up to 5 kilometers, beyond the municipal limits. He also notified that atTater about 38 services pass to and fro from Kota-Khatoli-Itawa and total number of persons travelling is 1,500 Kota was said to be a fastly developing industrial centre. Keeping all these considerations in view, he directed that up to Tater, the buses of private operators shall be allowed to pass. He specifically held that this concession will be available not only to the existing operators but to others also whomay be allowed to bifurcate their route from this traffic point. (emphasis applied). It is thus clear that when the scheme was notified under Section 68-D and the portion from Kota to Tater was allowed to be plied by private buses if the buses bifurcate at Tater, the concession was not restricted only to then existing permit holders but was to operate in favour of all permits holders who may in future be allowed to bifurcate their route from Tater. The overall consideration was that as the distance between Kota to Tater was very small and as the requirement of traffic was heavy, it may work great inconvenience to the public if because of this small overlapping, buses were not to be allowed to operate on other routes like Kota-Mangrol even though they were to birfurcate from Tater.

9. Mr. Munshee had sought to urge that resolution in permitting of the existing operators and not others is not, per se, discriminatory and had referred me to Civil Miscellaneous Writ No. 552 of 1961 decided on August 24, 1964 (Raj) (Mushtaq Ahmed v. State) I need not go in the question of discrimination, because on the interpretation that I have given of the notified scheme, I have no doubt that the overlapping was permitted not only to the existing operators, but to any other person whose route may be bifurcated from Tater. That case is therefore of no help to the petitioner.

10. Mr. Munshee had also referred me R. M. D. C. v. Union of India, AIR 1957 SC 628 for the contention that as the notified scheme is law, one must try to see the intent of them that made it and that could be gathered from the wordings actually used in the Statute. The proposition is unexceptionable. The words mentioned in the notified scheme are clear and do not make any special concession only in favour of the then existing operators. I can also see no legitimate reason why it should have been done so when the whole purpose was that the short distance from Kota to Tater should not be excluded because otherwise it may interfere and harm the travelling public. In that view, as the approved scheme under Section 68-D itself does not provide for the total exclusion of the portion of Kota to Tater so long as the buses bifurcate from Tater, the argument that the permit of respondent No. 3 from Kota to Mangrol is invalid because he would ply on a portion atnotified route from Kota to Tater is not maintainable.

11. As the State Transport Undertaking has not yet applied for temporary permit on Kota-Khatauli via Dhabri route, (under Section 68-C of the Act), prima facie, there could be no objection to the respondent No. 3 being granted temporary permit under Section 68-F (1-C) for the portion Kota to Dhabri. This is of course not disputed by the petitioner. What is, however, objected is that the temporary permit to respondent No. 3 has not been issued from Kota to Dhabri, but from Kota to Mangrol, and as Dhabri to Mangrol is not a part of the draft-scheme route, therefore, a permit could not have been issued by invoking the power under Section 68-F (1-C) of the Act The next corrollary to this argument necessarily implies that a permit cannot be issued by invoking power both under Section 68-F (1-C) and Section 62 (1) (c) of the Act. The underlying assumption in this argument is that as Chapter IV, wherein Section 62 is found, and Chapter IV-A, which comprise Section 68-F (1-C), are separate chapters, the power in these two sections cannot be combined for issuing temporary permits. It is maintained that the power to issue a temporary permit can either be exercised by invoking power separately under Section 62 or Section 68-F (1-C) but not by combining both. Of course, if this argument of the petitioner has any validity, obviously, the respondent No. 3 could not have been granted a temporary permit because of a portion from Kota-Tater-Dhabri is under a draft scheme under Section 68-C, to which Section 68-F (1-C) applies while the portion from Dhabri to Mangrol is not under either an approved or draft scheme. There is however fallacy in the argument. The Act provides for the issue of a non-temporary permit and a temporary permit. Section 62 of the Act lays down a condition under which a temporary permit can be issued. So when a person applies for a temporary permit, it can be issued to him if conditions laid down under Section 62 are complied with. But Section 68-F (1-C) has laid down an embargo on the issue of the temporary permit on the route on the draft scheme (even if conditions of Section 62 are complied with) unless the conditions laid down under Section 68-F (1-C) are complied with. The consequence is that when a person applies for a temporary permit, the issuing authority has to see that not only he complies with the conditions laiddown in Sub-section (1-C) of Section 68-F, if temporary permit is also to include a portion of the route mentioned in draft scheme under Section 68-C of the Act. It is not as if a hybrid composite permit is being issued as was the objection which was accepted in Special Appeal No. 539 of 1971 (Umraosingh v. R.T.A., Udaipur) decided on November 13, 1972, by this Court. In that case, a permit had been issued with the remarks that it would be a temporary permit on a part of the route and a non-temporary one for another part of the route. It was in that context that it was observed by the Division Bench that permits contemplated under the Act are of two kinds, non-temporary and temporary, and no third category of permit could be granted under the Act. In the present case, however, the permit issued is a temporary permit contemplated under the Act and Umraosingh's case (supra) has no applicability. The permit, here, is temporary one. The embargo of Section 68-F (1-C) of the Act does not apply and therefore respondent No. 3 is in a position to obtain a permit from Kota to Mangrol. The argument of the petitioner really boils down to this that because a reference has to be made to both Chapters IV and IV-A, before a temporary permit, can be issued to respondent No 3, the permit becomes invalid. There is no warrant ir. law for such an argument Objection to issue of a temporary permit to respondent No. 3, can only succeed if it is shown that there is a legal bar to the issue of temporary permit to respondent No. 3. This the petitioner could only do if they were successful in proving that there was an embargo under Section 68-F (1-C) to the issue of a permit on the portion Kota to Dhabri. But as I have already mentioned, there is none because State Transport undertaking has not applied for a temporary permit under Sec-tion 68-F (1-A), There is thus no embar-go on granting temporary permit to res-pondent No. 3. I have previously also in Bhanwarlal Jain v. Regional Transport Authority, Udaipur (1976 WLN (UC) 328) rejected the contention that though the power be with the Transport Authority under Chapters IV and IV-A, thesame cannot be exercised at the same time. For the reasons mentioned above, I am of the view that the temporary permit issued to respondent No. 3 could not be objected to on the ground that a portion of the route, i. e. Kota-Tater-Dhabri was comprised in the route off draft scheme under Section 68-C of the Act.

12. The next objection sought to be raised was that the R.T.A. had held that there was no need and the SectionT.A. res-pondent No. 1 had illegally held that there was a temporary need under Section 62. It is obvious that whether temporary need exists requiring a temporary permit to be issued, is really for the authorities under the Act to determine, It is true that the R.T.A. found that there was no temporary need requiring an issue of a temporary permit, but then its decision was subject to appeal and respondent No. 1, as an appellate au-| thority, was perfectly competent to decide whether in the facts and circumstances, grant of a temporary permit was justified. Mr. Sharma referred me to Capoor v. Regional Transport Authority Jaipur Region, Jaipur, 1975 Raj LW 498 : (AIR 1976 Raj 166) wherein it was said that mere increase of scope of permits on the route does not mean that necessarily there is a temporary need. In that case, the learned Judge found that no temporary need was mentioned and from the order of the R.T.A. it appeared that it had not taken into consideration the question of shortage of vehicles for the purpose of maintaining existing services on the route. It was in that context that it was held that even though the scope of permits has been increased, it did not mean that there was a temporary need. It is no doubt true that existence of permanent vacancies may not news-sarily mean that there is a particular temporary need within meaning of Section 62 (1) (c) of the Act. But it is equally true that the existence of permanent vacancy and a temporary need can coexist. There may be circumstances in which both may co-exist and in that case, the grant of temporary permit would be permissible. As held in Madhya Pradesh Stats Road Transport Corporation, Bairagarh. Bhopal v. B. P. Upa-dhyaya, AIR 1966 SC 156, there is no antithesis between a particular temporary need and a permanent need and it is manifest that these two kinds of needs may co-exist on a particular route and that sub-section contemplates that there may exist a temporary need for transport facilities on a particular route even in case of permanent need for such facilities. A reference to the order of respondent S.T.A. shows that it has referred to the fact that the R.T.A. has itself on January 19, 1977, increased the scopefrom 5 to 7 buses indicating that there was need to increase the buses on the route; the respondent No. 1 also found it strange that immediately thereafter, the R.T.A. should have taken the view by its impugned order of Feb. 11, 1977 that the bus service on the route was satisfactory and that travelling public was not experiencing any difficulty. Respondent No. 1 has clearly found that it has not been established which conditions of Section 68-F (1-C) and Section 62 (1) (c) have not been complied with by respondent No. 3. It is also mentioned that there is a rush of travelling public with an increase of traffic and that It was lor the convenience of the travelling public to issue permit A firm finding has been given by respondent No. 5 that travelling public requires the grant of a temporary permit. It will be seen that this decision by respondent No. 1 is based on the assessment of the various facts and circumstances and being within its juris-diction, cannot be interfered with by this court unless it was manifestly perverse or capricious, vide Bherulal v. State Transport Appellate Tribunal, Rajasthan, 1976 Raj LW 491 : (AIR 1977 Raj 29) where I have said (at p. 35):--'..... To ask this Court to substituteits own satisfaction for that of the Regional Transport Authority, a body of experts and specialists who have been entrusted by the statute to look after the needs of the travelling public is to ask the court to take on matters ior which it is obviously not fully equipped either with reference to the full materials, local conditions and other circumstances on the basis of which alone a satisfactory decision can be made.' This Court under Article 226 of the Constitution does not sit as a court of appeal over the decision on facts given by the authorities under the Act, unless the authorities under the Act have completely misdirected themselves on a point of law or have based their decision on no evidence, their derision cannot be interfered with. Such is not the situation here. This plea of the petitioner also fails.

13. The result is that I find no merit in the writ petition and the same is dismissed with costs.


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