1. The only point which falls for determination in this special appeal is whether it would be lawful for a Regional Transport Authority under the Motor Vehicles Act, 1939 (for short, the Act to grant or renew a contract carriage permit to a private operator for the whole of Rajasthan without any curtailment in respect of the areas or routes covered by various schemes of nationalisation of passenger transport services as approved by the State Government in accordance with the provisions of Section 68-D of the Act. II has arisen in the following circumstances.
2. Mehmood (respondent 3 herein) and a number of other private operators made their respective applications to the Regional Transport Authority, Jaipur (respondent 2 herein) under Section 49 of the Act for the grant or renewal of contract carriage permits for the whole of Rajasthan. The Rajasthan State Road Transport Corporation (the appellant herein) which constitutes the 'state transport undertaking' as defined in Section 68A (b) of the Act, objected to the grant or renewal as applied for. The Regional Transport Authority partly upheld the objection and consequently granted or renewed the permits in question attaching to each of them the condition that the permit holder shall not use his vehicle on the nationalised routes. Aggrieved by the said condition, the permit holders filed separate appeals before the State Transport Appellate Tribunal (respondent 1 herein) for the deletion of the condition from their respective permits. By its common order, dated, January 28, 1982, the Tribunal allowed all the appeals, including the one by respondent 3 herein and quashed the aforementioned condition with the result that the Regional Transport Authority was required to grant or renew the contract carriage permits to all the private operators for the whole of Rajasthan as applied for by them, without any curtailment in respect of the areas or routes covered by various schemes of nationalisation of passenger transport services, as approved by the State Government in accordance with the provisions of Section 68-D of the Act The Rajasthan State Road Transport Corporation (for short, the Corporation) challenged the order of the Tribunal by way of several writ petitions filed under Article 226 of the Con-situation of India. According to the Corporation, the Tribunal acted without jurisdiction and committed grave errors of law in deleting the condition attached to the permits as granted/renewed by the Regional Transport Authority. By his judgment dated December 20, 1962, the learned single Judge dismissed all the writ petitions leaving the parties to bear their own costs. Aggrieved by such dismissal, the Corporation has preferred this special appeal
3. The learned Advocate General who appeared as counsel for the Corporation it this special appeal referred to various provisions of the Act, the rules made thereunder and the approved schemes of nationalisation of passenger transport services in Rajasthan and also relied on a Division Bench ruling of this Court in Special Appeal No. 8 of 1968. Rajasthan State Road Transport Corporation v. Regional Transport Authority and others, and five other connected appeals decided in October 13, 1978, in support of his argument that the judgment of the learned single Judge and for that matter of the State Transport Appellate Tribunal below, are contrary to the provisions of the Act and the rules and to the approved schemes of nationalisation. He mainly relied on the aforementioned judgment of the Division Bench to buttress his argument to the effect that no permit can be granted except in accordance with the provisions of the approved schemes and that since the net result of the deletion of the aforementioned condition, would be to leave the grantees free to use their vehicles in contravention of the approved schemes, the condition must be restored for the purpose of giving effect to the approved schemes.
4. After giving the matter our careful consideration, we find force in the submissions made by the learned Advocate General. Had the Tribunal and the learned single Judge considered the matter in the proper perspective of the relevant provisions of the Act, the rules made thereunder and the approved schemes, they would have discovered that the judgment of the Division Bench of this Court in Special Appeal No. 8 of 1968, and the companion appeals, handed down on October 13, 1978, squarely covers the issue requiring determination in this case. The matter directly and substantially in issue in the cited case, as stated by the Division Bench itself, was 'whether the issue by the Regional Transport Authority of a contract carriage permit to a private operator for the whole of Rajas-than after according of approval by the State Government to a number of schemes of nationalisation of transport services on the specified routes to the total exclusion of private operators can be legally justified on the assumption that the permit, though it does not in terms make any exception in that behalf shall be deemed to have been issued subject to the condition that the permit holder shall not operate his vehicle on the nationalised routes or any portion of such routes'? The Division Bench surveyed the relevant provisions of the Act and the rules made thereunder and drew from them six conclusions. Both the Tribunal and the learned single Judge have reproduced those conclusions in their respective judgments, but we are constrained to say that neither of 'them, not even the learned single Judge has applied the law laid dew' therein for resolving the present controversy. The fourth and fifth of legal conclusions, as stated by the Division Bench are :--
(iv) For the purpose of giving effect to the approved scheme in respect, of a notified area or route, the State Transport Authority or the Regional Transport Authority may refuse to entertain any application for the grant of a permit to a private operator. It may even cancel existing permits or modify their terms by curtailing the area or route covered by such permit in so far as they relate to a notified area or the route.
(v) A mandatory duty is cast on the State transport Authority or the Regional Transport Authority, as the case may be, enjoining that 'they shall not grant any permit except in accordance with the provisions of' the approved schemes. However, such authorities may grant a temporary permit to a private operator in respect of a notified area or route if the State Transport Undertaking has not made an application for a permit in respect of such area or route, and that too on the condition that such temporary permit shall cease to be effective on the issue of a permit to the State Transport Undertaking.
5. Now, We may straightway mention here that a number of schemes covering a large number of areas and routes for nationalisation of passenger transport services to the complete exclusion of private operators, have been approved and published from time to time in the Official Gazette by the State Government and such schemes have thus become final in accordance with the provisions of Section 68D (3) of the Act. The Tribunal as well as the learned single Judge have noticed that the approved schemes which admittedly carry the force of law and which have to be enforced like any other statute, inter alia, lay down;--
(1) The passenger road transport services (stage carriages and contract carriages) shall be provided by the Slate Transport Undertaking on the following routes to the complete exclusion of other persons.
(2) The State Transport Undertaking will perform the following number of single service? daily on the aforesaid route, routes and portions thereof and to put the number of vehicles thereon indicated against each.
(3) The stage carriages and contract carriages to be provided on the route and portions thereof shall be of the nature of ordinary/express/deluxe.
(4) No person other than the State Transport Undertaking and other State Transport Undertakings under any existing reciprocal agreements will be permitted to provide passenger road transport service (stage carriages and contract carriages) on the route/routes or portions thereof specified in Clause (1) above.
It is also not disputed that before the grant/renewal of the contract carriage permits in question by the Regional Transport Authority with the condition attached to each of them to the effect that the permit holders of contract carriages shall not use their respective vehicles on the nationalised routes, the approved schemes containing, inter alia, the provisions reproduced above, had already become final and thus acquired statutory force. It is noteworthy that the approved schemes provide for the total exclusion of private operators inasmuch as they repeatedly enjoin that the passengers road transport services, including stage carriage and contract carriages shall be provided by the State Transport Undertaking, that such carriages shall be of the nature of ordinary/ express/deluxe, and that no person other than the State Transport Undertaking will be permitted to provide passenger road transport services (stage carriages and contract carriages) on the route or portion thereof. It is also common ground that before the grant/renewal of impugned permits with the aforementioned condition attached by the Regional Transport Authority, the Corporation which constitutes the State Transport Undertaking for the State of Rajasthan had already obtained permits for plying its vehicles on the nationalised routes in Rajasthan.
6. As already stated, both the Tribunal and the learned single Judge appear to be aware of the legal and factual position as explained above. Despite that both of them have held that the grant of contract carriage permits to private operators for whole of Rajasthan, without any curtailment of the area or route covered by approved schemes of nationalisation of passenger transport services in Rajasthan can be justified within the purview of conclusion V of the judgment of the Division Bench, reproduced in an earlier part of this judgment. The Tribunal says that notwithstanding the approved schemes of nationalisation, contract carriage permits can be granted to private operators under conclusion V aforementioned, if the State Transport Undertaking does not apply and obtain such permits equal in number to the scope fixed by the Road Transport Authority for such permits. The Tribunal has construed conclusion V in the manner mentioned above for it seems to feel that such a construction which enables private operators to obtain contract carriage permits in the event of the State Transport Undertaking not taking them would enure for the benefit of the travelling public. Learned single Judge has noticed that the Road Transport Authority, Jaipur has fixed a scope for contract carriage permits for Jaipur region at 85, and that, as the learned Judge puts it, '.........unless the Corporation (i.e. the appellant) applies for it and obtains the same, the private operators under the proviso to Section 68-FF of the Act can avail of the same'. According to learned single Judge, such a construction of the relevant provisions of law is quite in line with the decision of the Division Bench, as expressed in conclusion V mentioned above.
7. With utmost respect, we are constrained to say that the above opinion expressed by the learned single Judge, and for that matter by the Tribunal below, is clearly erroneous. It runs counter to not only what the Division Bench of this Court held in special appeal No. 8/1968, decided on Oct. 13, 1978, but also to the provisions of the law enacted in Ss. 68-F and 68-FF of the Act, to Rule 8 of the Rajasthan State Road Transport Service (Development) Rules, 1965, and the various schemes of nationalisation, as approved and published by the State Government in the official Gazette from, time to time providing for total monopoly in favour of the appellant on certain routes and areas to the complete exclusion of private operators. It bears repetition that these approved schemes have the force of law and they have t be administered and implemented like any other law. Section 68-B of the Act is important and must constantly be borne in mind while dealing with the powers of the RTA to grant permits under Chapter IV of the Act. This section in effect, lays down that any such power of the RTA under Chapter IV which is inconsistent with or impinges upon the provisions of Chapter IV-A of the Act and the rules and orders made thereunder shall be ignored as having been over-ridden and overruled by the provisions of Chapter IV-A and the rules and orders made thereunder. It is true that the RTA has power under Section 50, Chapter IV of the Act, to fix the number of additional contract carriages having regard to the interest of the travelling public, and it may also be true that the RTA Jaipur has fixed a scope of 85 contract carriages for the Jaipur region in public interest. It is also true that under Section 51 (again in Chapter IV) the RTA has power to grant contract carriage permits. Chapter IV-A inserted by Parliament by Act No. 100 of 1956, has however overridden these powers to a considerable extent. With the promulgation of the approved schemes which are schemes of nationalisation of various routes to the total exclusion of private operators, the RTA does not have any power to grant contract carriage permits to a private operator, in respect of any area or route falling within the approved schemes. Section 68-F imposes a legal duty on the RTA to issue permit to the State Transport Undertaking in pursuance of an approved scheme, notwithstanding anything to, the contrary contained in Chapter IV. This is a sort of re-affirmation of the law enacted in Section 68-B to the effect, inter alia, that the power of the RTA to issue permits, including contract carriage permits under Section 51 of the Act stands overridden in respect of an area or route falling within an approved scheme. Section 68-FF, to which learned single Judge has referred in his judgment as the source of power of the RTA to grant contract carriage permits for whole of Rajasthan to private operators to the extent of the number of contract carriage for which the State Transport Undertaking did not obtain such permits, does not at all vest the RTA with any such power as erroneously deduced from it by the learned single Judge. Or. the contrary Section 68-FF mandatorily prohibits the RTA from granting 'any permit' which of course includes contract carriage permits as well, in respect of any notified area or notified route, except in accordance with the provisions of the approved schemes. The proviso to this section enables the RTA to grant a temporary permit to a private operator in respect of a notified area or notified route subject to the condition that such temporary permit shall cease to be effective on the issue of a permit to the State Transport Undertaking in respect of that area or route. We have already mentioned that it is common ground between the parties that before the grant/ renewal of impugned contract carriage permits by the RTA in the instant case, the State Transport Undertaking had already applied for and obtained permits for plying its vehicles on monopoly basis on nationalised routes in Rajasthan. That being so, the RTA had no jurisdiction or power to grant/renew contract carriage permits in favour of private operators in respect of such nationalised route after the Stale Transport Undertaking had already obtained permits in pursuance of the approved schemes of nationalisation. Even assuming that the permits obtained by the Slate Transport Undertaking were all stage carriage permits and not contract carriage permits it would make no difference at all for such temporary permits, as would have been issued to private operators under the proviso to Section 6B-FF, would have ceased to be effective 'on the issue of a permit to the State Transport Undertaking in respect of the notified area or notified route'. It is significant to note that such cessation of effectiveness of temporary permits issued to private operators is made dependent, not upon the issue of a contract carriage permit alone, but of a 'permit' which according to the definition of this expression also includes a stage carriage permit. We are therefore firmly of opinion that the RTA had no jurisdiction or power under Section 6B-FF to grant contract carriage permits to private operators in respect of any area or route falling within the approved schemes.
8. Turning now to the Rules, Rule 8 emphatically lays down that upon the publication of the approved scheme under Section 68-F (3) of the Act, no person other than the State Transport Undertaking shall be entitled to a permit under Chapter IV of the Act. Now, Chapter IV deals inter alia with grant of both stage carriage as well as contract carriage permits. In the premises, it follows as a matter of syllogistic conclusion that no private person is entitled to a contract carriage permit or a stage carriage permit under Chapter IV after the promulgation of an approved scheme under Section 68-D (3) of the Act
9. A reference to the approved schemes, which carry the force of law, would lead us to the same conclusion. We have already mentioned that these schemes provide for total exclusion of private operators inasmuch as they repeatedly command that the passenger road transport services including stage carriage and contract carriages shall be provided by the State Transport Undertaking to the complete exclusion of other persons, and that no person other than the State Transport Undertaking will be permitted to provide passenger road transport services (stage carriages and contract carriages) on the nationalised route/routes.
10. We may now turn to case law. In Sobhraj Odharmal v. State of Rajasthan, AIR 1963 SC 640, the Supreme Court read the provisions of Sub-sections. (1) & (2) of Section 68-F of the Act as laying down inter alia that the RTA may refuse or reject an application for the grant or renewal of any permit (which of course includes a contract carriage permit) to a private operator, if such refusal or rejection is necessary for the purpose of giving effect to the approved scheme. Their Lordships made it clear that such refusal or rejection 'is not dependent upon the grant of any permits to the State Transport Undertaking. Relying on an earlier ruling reported in Kalyan Singh v. State of Uttar Pradesh, AIR 1962 SC 1183, their Lordships held that an order passed by the RTA under Section 68-F (2), like the order in the instant case curtailing the route of the contract carriage for the purpose of giving effect to the approved schemes, is purely consequential upon such schemes, and is not open to challenge. We therefore hold that the curtailment of the contract carriage permits ordered by the RTA in the instant case for the purpose of giving effect to the approved schemes is not open to challenge. The Tribunal below and the learned single Judge in this court have gone wrong in holding, that the order of the RTA could be challenged before them.
11. We reject as wholly untenable the observations of the learned single Judge to the effect that a scheme of nationalisation prepared by the State Transport Undertaking, approved and published by the State Government under Section 68-D, 'is nothing but an application for stage carriage permit.'' We would in this connection refer to H.C. Narayanappa v. State of Mysore, AIR 1960 SC 1073 wherein the Supreme Court held that a| scheme framed under Section 68-C and approved under Section 68-D may properly be regarded a law made by the State excluding private operators from notified routes or notified areas. Such a scheme cannot by any stretch of construction be equated with a mere application for a stage carriage permit
12. In Mysore State Road Transport Corporation v. S.T.A. Tribunal, AIR 1974 SC 1940, the Supreme Court, held that where a private operator 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 approved scheme, and if there is total prohibition of private operators in the approved scheme, the application must be rejected. Their Lordships further observed that there is no justification for holding that the integrity of the approved 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. The ratio of this case applies mutatis mutandis to the facts of this case. We may hold relying on this authority, that the integrity of the monopolistic schemes of nationalisation, which completely exclude the private operators from providing passenger road transport service (stage carriage or contract carriage) . on the nationalized routes and which have a force of law cannot be allowed to be tampered with by issuing contract carriage permits. If such a contract carriage permit is issued to a private operator for the whole f Rajasthan as in the instant case, he would not be able to ply his vehicle without plying it on the nationalised routes which criss-cross the entire territory of the State of Rajasthan. This is not permitted by the approved schemes which as already stated, contain an express prohibition to the effect that no person other than the State Transport Undertaking will be permitted to provide passenger road transport services including stage carriages and contract carriages on the nationalised routes.
13. The Tribunal and the learned single Judge 'allowed themselves to be carried away by what appears to us to be an unreal dilemma to the effect that if the State Transport Undertaking has not taken out the requisite number of permits for contract carriages, it would not be able to meet the ever increasing demands of the public for such carriages. A reference to the provisions of Section 42 of the Act would at once show that the State Transport Undertaking would not be committing any contravention of the conditions of the stage carriage permits, admittedly granted in its favour prior to the grant by the RTA of the contract carriage permits in favour of private operators, if the said Undertaking uses its stage carriages as coil-tract carriages. It is a matter of common knowledge that the fleet of omnibuses at the disposal of the State Transport Undertaking runs into thousands. Such omnibuses even if they are being plied on the basis of stage carriage permits can always be used as contract carriages, by the State Transport Undertaking depending upon the demand by public in that behalf, without committing any contravention of any law. It is obvious that the grant of a few contract carriage permits to private operators for the whole of Rajasthan will be no substitute from the stand-point of public interest, for the readiness of the State Transport Undertaking to ply any number of its stage carriages as contract carriages depending upon the demands of the travelling public.
14. Moreover, we may once again point out that in the event of any inconsistency between Sections. 46 to 51 in Chapter IV, which deal with procedure for the grant of stage carriage permits and contract carriage permits, and the approved schemes under Chapter 1V-A, the latter must prevail regardless of the opinion of the RTA or the Tribunal as to what is or what is not in public interest. Parliament, which enacted Chapter IV-A providing for nationalisation of passenger road transport to the complete exclusion of private operators, and the State Transport Undertaking, which has been entrusted with the duty to prepare the schemes of nationalisation and with the implementation of such schemes, after approval by the State Government, should know the public interest much better than the RTA, the Tribunal and the courts.
15. Before parting with the discussion as to case law, we may also refer to an-other important ruling of the Supreme Court reported in Roshanlal v. State of Uttar Pradesh, AIR 1965 SC 991, which relates to the claim of a private operator to the grant/renewal of a contract carriage permit for the entire Agra region comprising the territory of six districts without any curtailment as to the route or routes falling within an approved scheme. As a basis for this claim, the private operator urged before the Supreme Court that the scheme itself was not properly framed. Their Lordships rejected this contention and upheld the validity of the scheme, holding that there is no difficulty in accepting a scheme which cuts down the area by subtracting a few routes. The Supreme Court further held in express terms as follows :
'The taking over of certain routes exclusively for the State Undertakings renders that portion of the area ineffective for a private operator such, as the appellant who holds a permit (i.e. contract carriage permit) for the whole area including those routes.
Relying on this authority, we hold that the RTA was right in taking the view that he had no option under the approved schemes except to subtract from the area of whole of Rajasthan, for which he was issuing contract carriage permits, such routes as had been nationalised to the complete exclusion, of private operators. The contrary view taken by the Tribunal are the learned single Judge is not correct.
16. Another consideration which prevailed with the learned single Judge and which may have led him into taking an erroneous view of the matter has been expressed by him in these words :
'The schemes do not permit contract carriage permits for cars and do not disallow or prohibit contract carriage permits for Mini Buses or Gani Buses. Contract carriage permit so far as its character or class goes, is one and the same, whether it is for a light vehicle or heavy vehicle. If a view is taken that the scheme prohibits contract carriage permit, then the contract carriage permit, whether it is for car or auto-tonga or rickshaw or jeep, would not survive.
17. We are not dealing here in this case with a contract carriage permit for motor cabs. So far as motor cars are concerned, they can be driven on the nationalised routes without any permit under Chapter IV or IV-A of the Act. However, a motor cab cannot be plied on the nationalised route without a permit. If the nationalised schemes contain a prohibition against plying of contract carriages like motor cabs on the nationalised routes such schemes have to be implemented regardless of the consequences. The tourist vehicles, however, stand on a different footing. Permits for the tourist vehicles are granted by the State Transport Authority and not by the Regional Transport Authority in accordance with Section 63 (7) of the Act, and the rules framed under the Act. The Rules in that behalf are Rajasthan Tourist Vehicles, Rules, 1969 which provide for plying of tourist motor cabs, tourist omnibuses and tourist vehicles. We are not called upon for the purpose of deciding this case to express any opinion regarding the provisions of Section 63 (7) of the Act and the Rajasthan Tourist Vehicles Rules, 1969.
18. In conclusion, we allow this special appeal, set aside the judgments and orders of the learned single Judge and the Tribunal and instead restore the order of the Regional Transport Authority. The appellant is entitled to the cost throughout. Counsel fee assessed at Rupees 500/-.