Sher Singh & Ors Vs. Union of
India & Ors [1983] INSC 160 (21 October 1983)
DESAI, D.A.
DESAI, D.A.
REDDY, O. CHINNAPPA (J) VARADARAJAN, A. (J)
CITATION: 1984 AIR 200 1984 SCR (1) 464 1984
SCC (1) 107 1983 SCALE (2)531
CITATOR INFO :
RF 1986 SC1541 (9) R 1986 SC2039 (2,3,5,6) R
1988 SC 18 (11)
ACT:
Constitution of India 1950 Article 14 &
19 (1) (g) Motor Vehicles Act-1939-Section 47 (1-H) Preference to State
Transport Corporations for grant of inter-state permit over private
operators-Whether denial of equality before law-Denial of right to carry on
trade.
Motor Vehicles Act, 1939 Sections 47 (1-H)
& 58 (2)- Grant of Inter-state permit-Preference to State transport
Corporations-Whether violative of Articles 14 and 19 (1) (g) of the
Constitution.
Application for renewal of existing permit by
private operator-Whether entitled to preference over fresh application of a
State Transport Undertaking- Tamil Nadu Motor Vehicles Rules 155 A-Assignment
of 5 marks to State Transport Undertaking-Whether valid.
Words & Phrases.
"as if"-Meaning of-Section 58 (2) Motor
Vehicles Act 1939.
HEADNOTE:
The petitioner in the Special Leave Petition
was the holder of a Stage carriage permit on an inter-State route He held
several permits for operation of the said route and as the period prescribed
for a few of them had expired, he applied for renewal under section 58 of the Motor
Vehicles Act, 1939 to the Regional Transport Authority which granted renewal.
In the meanwhile, the State Road Transport Corporation the 5th respondent made
an application for grant of a stage carriage permit for operation on the said
route. This application was advertised and the matter was taken up for consideration.
During the pendency of this application the petitioner was granted temporary
permits under section 62 which were renewed from time to time.
When the application of the petitioner for
renewal of permits and the application of the State Road Transport Corporation
for allotment of new permit were taken up for consideration, an objection was
raised on behalf of the Corporation that as the route was an inter-State route
it was entitled to the permit in preference to the petitioner in view of section
47 (1-H). On behalf of the petitioner it was contended that section 58 entitled
the petitioner to renewal of permit in preference to the Corporation. The
Regional Transport Authority negatived the petitioner's contention and allotted
the permit to the Road Transport Corporation.
465 The petitioner in his writ petition to
the High Court contended that section 47 (1-H) was constitutionally invalid and
no preference could be granted in favour of the State Road Transport
Corporation. The Single Judge dismissed the writ petition and the Division
Bench upheld the order.
In the Special Leave Petitions to this Court
it was contended on behalf of the petitioners that the State Road Transport
Corporation must either take recourse to the provisions contained in Chapter
IV-A of the Act, which makes special provisions relating to State Transport
Undertaking or otherwise if it wants to compete without recourse to chapter
IV-A it must stand in competition with other applicants for allotment of stage
carriage permits. Any preference that the State Road Transport Corporation may
enjoy in respect of an interstate route under sub-section (1-H) is violative of
Article 14 and the fundamental freedom to carry on trade under Article 19 (1)
(g). Section 58 entitled the petitioners to renewal of permit in preference to
the application for grant of a new permit made by the State Transport
Undertaking.
In the connected Special Leave Petitions, it
was contended on behalf of the petitioner that Rule 155-A of the Tamilnadu
Motor Vehicles Rules provides for a marking system under different heads to
objectively assess who is the best suited for grant of the permit, and
consequently an ad hoc assignment of marks and failure to weed out the
application of the State Transport Corporation on the ground of
disqualification for not providing night-halt cleaners vitiated the decision of
the Transport Authority.
Dismissing the Petitions.
HELD: 1.(i) Section 47 (1-H) would not deny
equality before law and hence would not offend Article 14. [474-E] (ii) The
Regional Transport Authority under section 47 upon a judicious consideration of
merits and demerits of every applicant must in a fair and reasonable manner
decide who amongst the applicants would perform the duty and carry out the
obligations under the permit. However, sub-section (1-H) carves out an
exception, that where an application for stage carriage permit on an
inter-state route is made by a State Transport Undertaking it must be accorded
preference.
But while granting preference, the Regional
Transport Authority must satisfy itself that the Corporation would be able to
operate on the inter-state route without detriment to its responsibility for
providing efficient and adequate road transport service. [471 C-D] Dosa
Satyanarayanamurty etc. v. The Andhra Pradesh State Road Transport Corporation
[1961]1 S.C.R. 642 referred to.
(iii) While considering the application for
stage carriage permit under section 47, the private operator has an equal
chance to get a permit even on an inter-State route if it shows that the
Undertaking is either unable to provide efficient and economical service or
that the private operator is better equipped to render the same. Preference in
this context would mean that other things 466 generally appearing to be qualitatively
and quantitatively equal though not with mathematical accuracy, statutory
provision will tilt the balance in favour of the Undertaking. [474 D] (iv)
Section 47 (1-H) provides that in the case of inter-State route, the
Undertaking will have preference in the matter of stage carriage permit. The
expression `preference' amongst others, means prior right, advantage,
precedence etc. It signifies that other things being equal, one will have
preference over the other. [473 B] (v) When an application for the stage
carriage permit is being processed as required by sec. 47, the application of
the Undertaking for an inter-State route shall be examined as an application of
any other private operator.
Their merits and demerits must be ascertained
keeping in view the requirements of clauses (a) to (f) of sec. 47 (1) and after
comparing the merits and demerits of both the application of the Undertaking
will have preference over others. [473 C-D] (vi) Qualitative and quantitative
comparison on broad features of passenger transport facility such as fleet,
facilities to travelling public and other relevant consideration may be
undertaken and after balancing these factors other things being equal, the
application of the Undertaking shall be given preference over other applicants.
There is no question of eliminating private
operators merely because the Undertaking applies for a stage carriage permit
under Chapter IV. [473 E] (vii) In an application under Chapter IV, the
Corporation has to enter the arena like any other applicant, face the
competition and come-up to the level of other Private operators intending to
obtain stage carriage permits and then in respect of the route in question
claim preference. Competition is the essence of improved commercial Service. [473
F]
2. (i) There is no substance in the
contention of the petitioner that sec. 47(1-H) is violative of Art. 19 (1) (g)
in that it denies the fundamental freedom to carry on trade because the
petitioner has not been denied his free dom to carry on trade. The petitioner
is entitled to make an application under Chapter IV for a stage carriage permit
and must compete with other private operators as also the Undertaking. [474 F]
(ii) The Undertaking whose nett profits are required to be spent for the
provision of amenities to the passengers using road transport services, welfare
of labour employed by the Undertaking, for financing the expansion programmes
of the Undertaking, and the balance to be made over to the State Government for
the purpose of road development must receive in larger public interest
preference for a permit compared to a private operator whose profits would go
to argument his private income. [475 A-B] Lachhman Das v. State of Punjab &
Ors.[1963] 2 S.C.R. 353; Mannalal & Anr. v. Collector of Jhalawar and Ors.
[1961] 2 S.C.R. 962 referred to.
467 3 (i) If an application for renewal of a
permit was to be trated differently than the application for a permit made
under section 45 and perocessed under section 47 and other connected
provisions, it was absolutely unnecessary for the legislature to provide that
an application for renewal of a permit shall be made and disposed of as if it
were an application for a fresh permit. [476 E] (ii) The expression "as
if" occurring in Section 58 (2) in the phrase "as if it were an
application for a permit .." would mean and imply that the application for
renewal must be made in the same manner and to the same extent as an
application for a fresh permit and must be processed as such. This means that even
where an existing permit holder applies for renewal, it has to be advertised
and fresh applicants can apply for a permit. [476F] (iii) Section 47 (1-H)
would also came into play when an application is for renewal of a permit on an
inter-State route. There is no conflict between Section 47 (1-H) and Section 58
(2). [476 G]
4. Once the assignment of 5 marks to the
State Transport Undertaking, is held to be valid the Transport Authority was
perfectly justified in refusing renewal of permits to the petitioners. Regarding
failure to explain absence of nighthalt cleaners, in the absence of concrete
evidence, no inference can be drawn. [478 G-H] D.R. Venkatachalam & Ors. v.
Dy Transport Commissioner
& CIVIL APPELLATE JURISDICTION: Special
Leave Petition (Civil) No. 6605 of 1983.
From the Judgment and Order dated the
6.4.1983 of the Rajasthan High Court in D.B. Special Appeal No. 74 of 1983.
WITH
Special Leave Petition Nos. 9678-9680 of
1982.
From the Judgment and Order dated the 4th
October, 1982 of the Madras High Court in C.R.P. No. 2880-82/1978.
AND Write Petition Nos. 9600-9601 &
9759-9760 of 1983.
Under Article 32 of the Constitution of
India.
468 K.K.Venugopal and Mukul Mudgal for the
Petitioner in SLP. 6605/83.
Shanti Bhushan, S.K. Jain and B.M. Mathur for
the Respondents in SLP. 6605/83.
C.S. Vaidyanathan for the Petitioner in SLP
(Civil) Nos. 9678-9680 of 1982.
Dr. Y.S. Chitale and A.V. Rangam for the
Respondents in SLP (Civil) Nos. 9678-9680 of 1982.
S.N. Kacker and A.K. Panda for the
Petitioners in Writ Petitions.
Shanti Bhushan and B.N. Mathur, S.K.Jain
& S.D. Sharma for the Respondents in Writ Petitions.
The Judgment of the Court was delivered by
DESAI, J. In this group of special leave petitions and writ petitions,
constitutional validity of Sec. 47 (I-H) of the Motor Vehicles Act, 1939 (`Act'
for short) directly or indirectly figures. With a view to focussing attention
on the context in which the question is raised, it may be advantageous to refer
to the factual matrix in S.L.P. 6605/83, in which the learned Single Judge and
the Division Bench of the High Court repelled the challenge. We would first
deal with the principal challenge common to all petitions and then dispose of
specific contention raised in other petitions clubbed together here. For representative
facts we would refer to S.L.P. 6605/83.
Re: S.L.P. No. 6605/83: Petitioner Sher Singh
is the holder of a stage carriage permit on Behror-Rewari via Barrod,
Shahjahanpur inter-State route. A portion of the route from Bahror to National
Highway No. 8 via Barrod and Shahjahanpur 28 k.ms. in length passes through
Rajasthan State and the rest of the portion of the route 22 K.ms. in length
lies in Haryana State. It is thus an inter-State route. Petitioner holds 12
permits, for operating on the aforementioned route. Of the 12 permits, the
period prescribed under 8 permits expired and the petitioner applied for the
renewal of the permits under Sec. 58 of the Act. Regional Transport Authority
granted renewal of the permits up to and inclusive of January 20, 469 1981. The
petitioner again applied for renewal of the permits on December 29, 1980. The
Rajasthan State Road Transport Corporation, fifth respondent (`Corporation' for
short) made an application to the Regional Transport Authority on April 20, 1981
for stage carriage permit on the aforementioned route. This application was as
usual advertised. The application of the petitioner for the renewal of his
permits accordingly was taken up for consideration on April 30, 1981. Pending
the consideration of the application for renewal of permits, petitioner was
granted temporary permits under Sec. 62 for a period of four months commencing
from the date of the expiry of the earlier permit. The temporary permits were
thus to expire on May 20, 1981. And these temporary permits were further
renewed for a period of 4 months Thereafter the application of the petitioner
for renewal of his permits and the application for stage carriage permit made
by the Corporation were taken up for consideration. An objection was raised by
the Corporation that as the route in question is an inter-State route, it is
entitled to permit in preference to the petitioner in view of the provision
contained in Sec. 47 (I- H) of the Act. On the other hand, it was contended on
behalf of the petitioner that in view of the provision contained in Sec. 58,
the petitioner is entitled to renewal of his permits in preference to the
Corporation, which has made an application for a fresh permit. This contention
found favour with the Regional Transport Authority and the renewal of permits
was refused to the petitioner and the permits were granted to the Corporation.
This decision was questioned in a writ petition filed by the present petitioner
in which the only contention raised was that the preference was accorded to the
Corporation for grant of a permit under Sec. 47 (I-H) of the Act which is
constitutionally invalid, and once no such preference could be granted, the
preference in favour of a renewal of permit under Sec. 58 should have a
precedence and the renewal ought to have been granted.
It was contended before the learned Single
Judge of the High Court that Sec. 47 (1-H) is violative both of Art. 14 and
Art. 19 (1) (g) and is thus constitutionally invalid.
That was the only contention canvassed before
the learned Single Judge which did not find favour with him as well as the
Division Bench of the Rajasthan High Court. Hence the petitioner filed this
petition for special leave. A notice was ordered to be issued to the respondent
and it was directed that the petition be finally disposed of at this stage as
the only question raised is one of law and no investigation of facts is
necessary.
470 A brief reference to the relevant
provisions of the Act may help us in demarcating the contours of controversy
with precision. Chapter IV of the Act contains provisions for control of
transport vehicles. For regulating the transport business, a scheme for
granting different types of permits has been statutorily prescribed. There are
various kinds of permits contemplated by the Act such as stage carriage permit,
contract carriage permit, all India tourist permit, special permit, permits for
transport of goods etc. Various authorities have been constituted under the Act
for the purpose of implementing the Act. Power has been conferred upon specific
authorities for granting different kinds of permits. Sec. 47 prescribes
procedure which the Regional Transport Authority has to follow while examining
and deciding an application for stage carriage permit. Sec. 47 was specifically
amended by Act 47 of 1978 which came into force on January 16,1979 By the
Amending Act, sub-secs (1-A) to (1-H) were added to Sec. 47. The focus of
controversy is on subsec. (1-H). Sub-sec. (1-H) reads as under:
"(1-H): Notwithstanding anything contained
in this section, an application for stage carriage permit from a State
Transport undertaking for operating in any inter-State route shall be given
preference over all other applications:
Provided that the authority shall not grant a
permit under this sub-section unless it is satisfied that the State transport
undertaking would be able to operate in the inter-State route without detriment
to its responsibility for providing efficient and adequate road transport
service in any notified area or notified route as is referred to in sub-section
(3) of Section 68-D where the undertaking operates the service.
Explanation:-For the purposes of this
sub-section, 'inter-State route' means any route lying contiguously in two or
more States.'.
A bare reading of the provision contained in
sub-sec.
(1-H) shows that where a Corporation set up
under the Road Transport Corporations Act, 1950 is one of the applicants for a
stage carriage permit on an inter-State route, then as between other applicants
and a State Transport Undertaking ('Undertaking' for short), the latter 471
will have preference over others. Routine statutory procedure prescribed in
Sec. 47 for grant of a stage carriage permit requires the Regional Transport
Authority which has the power to grant permit before selecting who amongst the
numerous applicants should be granted the permit must take into consideration
various things that are enumerated in Sec. 47. Fair approach would be that
after examining the credentials of every applicant, the Regional Transport
Authority shall grant permit to the person who in its opinion would best serve
the travelling public. The Regional Transport Authority upon a judicious
consideration of merits and demerits of every applicant must in a fair and
reasonable manner decide who amongst the applicants would perform the duty and
carry out the obligations under the permit. However, sub-sec. (1-H) carves out
an exception to this generally well-recognised principle that an administrative
authority has to adopt while exercising the power conferred upon it by the
statute, that where an application for a stage carriage permit on an inter-State
route is made by all intending applicants which includes a State Transport
undertaking, its application must be accorded preference. But while granting
preference, the Regional Transport Authority must satisfy itself that the
Corporation would be able to operate on the inter-State route without detriment
to its responsibility for providing efficient and adequate road transport
service in any notified area or notified route as is referred to in sub- sec.
(3) of Sec. 68-D where the undertaking operates the service.
At this stage, a reference to Sec. 58 would
be useful.
It provides for duration and renewal of stage
carriage and contract carriage permits other than temporary permit granted
under Sec. 62. An existing holder of permit may apply for renewal of permit.
Sub-sec. (2) of Sec. 58 requires that a permit may be renewed on an application
made and disposed of as if it were an application for a permit.
There is a proviso to sub-sec. (2) which
prescribes the time limit within which an application for renewal of different
kinds of permits may be made. There is a second proviso which is material and
which may be extracted:
"Provided further that other conditions
being equal, an application for renewal shall be given preference over new
applications for permits." Chapter IV-A was introduced in the Act by
Amending Act 100 of 1956 which came into force on February 2, 1957.
Chapter IV-A makes special provisions
relating to State Transport Undertaking.
472 The broad scheme of Chapter IV-A is that
a State Transport Under taking may prepare and publish a scheme on road
transport service. On the publication of the scheme, objections can be filed as
provided in Sec. 68-D. Sec. 68-E confers powers for modification and
cancellation of the Scheme. Then comes Sec. 68-F which provides that where, in
pursuance of an approved scheme, any State transport undertaking applies, in
such a manner as may be prescribed by the State Government in this behalf, for
a stage carriage permit or a contract carriage permit in respect of a notified
area or notified route, the State Transport Authority in any case where the
said area or route lies in more than one region and the Regional Transport
Authority in any other case shall issue permit to the State Transport
undertaking, notwithstanding anything to the contrary contained in Chapter IV.
In short in respect of a notified area or a notified route, an application for
permit by State Transport undertaking shall be granted to the exclusion of any
other operator. Apart from this specific provision in Sec. 68-F, this outcome
to some extent also emerges from the provision contained in Sec. 68-B which
provides that the provisions of Chapter IV-A and the rules and orders made
there under shall have effect notwithstanding anything inconsistent there with
contained in Chapter IV of the Act or any other law for the time being in force
or in any instrument having effect by virtue of any such law.
The first contention raised on behalf of the
petitioner was that the State Transport Undertaking must either take recourse
to provision in Chapter IV-A or otherwise if it wants to compete without
recourse to Chapter IV-A, it must stand in competition with other applicants
for stage carriage permit and any preference that it may enjoy in respect of
inter-State route under sub-sec. (1-H) of Sec. 47 is violative of Art. 14 and
is denial of fundamental freedom to carry on trade guaranteed to petitioners by
Art. 19 (1) (g).
At the outset it is necessary to bear in mind
the legal position of a State Transport Undertaking when dealt with under
Chapter IV-A and Chapter IV of the Act. If an approved scheme in respect of a
notified area or a notified route is in force, State Transport Undertaking
alone is entitled to operate vehicles and therefore is entitled to obtain stage
carriage permits both regular and temporary depending upon whether the scheme
provides for total or partial exclusion of private operators. However, when an
application for a permit is made under Chapter IV, the Undertaking has to
compete 473 with private operators who may as well make an application for
permit. When the Undertaking applies for permit under Chapter IV, it must
satisfy the Regional Transport Authority that it is better suited than the
private operator to render transport facility to the travelling public. Sec. 47
(1-H) however, provides that in the case of inter-State route, the Undertaking
will have preference in the matter of stage carriage permit. Does preference of
this nature deny equality guaranteed by Art. 14? The expression 'preference'
amongst others means prior right, advantage, precedence etc.
But how would it be possible to give
precedence one over the other. It signifies that other things being equal, one
will have preference over the others. When an application for a stage carriage
permit is being processed as required by Sec. 47, the application of the
Undertaking for an inter-State route shall be examined as application of any
other private operator. Their merits and demerits must be ascertained keeping
in view the requirements of (a) to (f) of Sec. 47 (1) and after comparing the
merits and demerits of both, not with the yardstick of mathematical accuracy,
but other things being equal, the application of the Undertaking will have
preference over others. Qualitative and quantitative comparison on broad
features of passenger transport facility such as fleet, facilities to
travelling public and other relevant consideration may be undertaken and after
balancing these factors other things being equal, the application of the Undertaking
shall be given preference over other applicants. There is no question of
eliminating private operators merely because the Undertaking applies for a
stage carriage permit under Chapter IV. That situation is catered to under
Chapter IV-A. In an application under Chapter IV, Corporation has to enter the
arena like any other applicant, face the competition and come-up to the level
of other private operators intending to obtain stage carriage permits and then
in respect of the route in question claim preference. Would this statutory
provision violate equality guaranteed by Art. 14 ? The answer is obviously in
the negative. Competition is the essence of improved commercial service. After
ensuing competition in matter of rendering more efficient transport service a
public sector undertaking is assured statutory preference, remember no
monopoly, there is no denial of equality guaranteed by Art. 14 ? A similar
argument when the vires of the provisions contained in Chapter IV-A were
questioned in Dosa Satyanarayanamurty etc. v. The Andhra Pradesh State Road
Transport Corporation (1) did not commend to the Constitution Bench when it
repelled the challenge observing as under:
474 "Ordinarily a State Transport
Undertaking should be in a better position than others to carry on the said
services for the benefit of the public;
administratively, financially and technically
it can be expected to be in a far better position than others. It can provide
more well equipped buses, give better amenities to the travelling public, keep
regular timings repair or replace the buses in emergencies. It may also employ
efficient supervisory staff to keep things going at an appreciably high
standard." This would apply mutatis mutandis to the present situation. But
let it be made clear that while considering the application for stage carriage
permit under Sec. 47, the private operator has an equal chance to get a permit
even on inter-State route if it shows that the Undertaking is either unable to
provide efficient and economical service or that the private operator is better
equipped to render the same.
Preference in this context would mean that
other things generally appearing to be qualitatively and quantitatively equal
though not with mathematical accuracy, statutory provision will tilt the
balance in favour of the Undertaking. Viewed from this perspective the
provision contained in Sec. 47 (1-H) would not deny equality before law and
hence would not effend Art. 14.
The next contention was that Sec. 47 (1-H) is
violative of Art. 19 (1) (g) in that it denies to the petitioner the
fundamental freedom to carry on trade. There is no substance in this contention
because the petitioner has not been denied his freedom to carry on trade. The
petitioner is entitled to make an application under Chapter IV for a stage
carriage permit and must compete with other private operators as also the
Undertaking. It is too late in the day to contend that a preference in favour
of the Undertaking would be violative of Art. 19 (1) (g) for the obvious reason
that Undertaking like all other applicants for permit has to compete for a
permit. It may be recalled that when it came to the provisions of Chapter IV-A,
this Court has more often than once upheld the validity of the provisions
contained in Chapter IV-A and repelled the challenge of its being violative of
Art. 19 (1) (g), even though the private operator may be wholly excluded from
even applying for a permit in respect of a notified area or a notified route
being part of an approved scheme. From a slightly different angle, the
challenge may be repelled in that other things 475 being equal, even apart from
the statutory preference, the Undertaking whose net profits are required to be
spent for the provision of amenities to the passengers using road transport
services, welfare of labour employed by the Undertaking, for financing the
expansion programmes of the Undertaking, and the balance to be made over to the
State Government for the purpose of road development must receive in larger
public interest preference for a permit compared to a private operator whose
profits would go to augment his private income. Sec. 30 of the Road Transport
Corporation Act, 1950 makes statutory provision for disposal of net profits of
a State Transport Undertaking. In a slightly different context, this Court in
Lachman Das v. State of Punjab & Ors. while repelling the challenge to the
validity of Patiala Recovery of State Dues Act, IV of 2002 BD approved the
ratio in Mannalal & Anr. v. Collector Of Jhalawar and Ors.(2) in which it
was held that the dues of the Government of a State are the dues of the entire
people of the State. This being the position, a law giving special facility for
the recovery of such dues cannot, in any event, be said to offend Art. 14 of
the Constitution.' This very approach requires to be adopted while examining
the challenge under Art. 19 (1) (g).
It was next contended that petitioner was an
existing permit holder and therefore, under Sec. 58 it was entitled to renewal
of its permits in preference to the applications for new permits made by the
Undertaking. The second proviso to Sec. 58 (2) does provide that 'other
conditions being equal, an application for renewal shall be given preference
over new applications for permits.' What has surprised us the most is that
while the petitioners have a serious grievance against the preference accorded
to the Undertaking for a permit on the inter-State route under Sec. 47 (1-H),
the same petitioner is keen to protect preference in favour of the renewal of a
permit against a new applicant statutorily provided in Sec. 58. But Sec. 58
also manifests the legislative intention when it uses the expression preference
with an adjectival clause 'that other conditions being equal', an application
for renewal will have a preference over the new applications.
The first submission in this behalf is that
when an application is made for a renewal of a permit, it has to be considered
only under 476 Sec. 58 and the preference therein provided excludes any
consideration of an application for a permit under Sec. 47.
Approaching the matter from this angle, it
was contended that as the present petitioner has made an application for the
renewal of the permit, he should have been accorded preference as mandated by
the second proviso to Sec. 58(2) over the fresh application of the Undertaking
and consideration of the application of the renewal of the permit under Sec. 58
excludes importing of the provisions of Sec. 47. This approach overlooks a
specific provision enacted in sub-sec. (2) of Sec. 58 which provides as under:
"58 (2) A permit may be renewed on an
application made and disposed of as if it were an application for a permit
.." When a statute prescribes that an application for renewal of a permit
shall be made and disposed of as if it were an application for a permit, the
legislature incorporated by pen and ink all those provisions which are
applicable for grant of a permit upon a fresh application made in this behalf.
If an application for renewal of a permit was to be treated differently than
the application for a permit made under Sec. 45 and processed under Sec. 47 and
other connected provisions, it was absolutely unnecessary for the legislature
to provide that an application for renewal of a permit shall be made and
disposed of as if it were an application for a fresh permit. The expression 'as
if' is used to make one applicable in respect of other. Therefore, the
expression 'as if' used in Sec. 58 (2) would mean and imply that the
application for renewal must be made in the same manner and to same extent an
application for a fresh permit and must be processed as such. This would mean
that even where an existing permit holder applies for a renewal of his permit,
it has to be advertised and fresh applicants can as well apply for a permit to
ply vehicles on the same route for which the previous holder of permit has
applied for renewal of his permit. After considering all such applications,
other conditions being equal, an existing operator who has applied for renewal
will have preference.
Therefore, by necessary interpretation, Sec.
47 (1-H) would also come into play when an application is for renewal of a
permit on an inter-State route. There is no conflict between Sec. 47 (1-H) and
Sec. 58 (2). It is therefore, not possible to accept the submission that while
considering the application for renewal of a permit, Sec. 47 (1-H) is not
attracted.
477 It appears that the State of Rajasthan
had amended Sec. 58 (2) in its application to that State by engrafting a third
proviso to sub-sec. (2) of Sec. 58 by Rajasthan Act 8 of 1973, which reads as
under:
"Provided also that other conditions
being equal, an application for stage carriage permit by a State Transport
Undertakings, as defined in Section 68-A, whether an application for renewal or
a new application shall be given preference over all other applications for
renewal." Addition of this proviso merely makes explicit what was implicit
in sub-sec. (2) of Sec. 58. Nothing was pointed out to us to hold that the
Rajasthan State Legislature lacked competence to add the aforementioned proviso
to sub-sec. (2) of Sec. 58.
Re: S.L.Ps. Nos. 9678 to 9680/82:
In this group of petitions for special leave,
it was contended before the High Court that as Pallavan Transport Corporation
Ltd., the first respondent, did not make provision for night halt cleaners, the
application for permits made by them were liable to be screened. The High Court
declined to examine this contention on the short ground that this contention
was not raised before the State Transport Appellate Tribunal. For the same
reason, we could as well have declined to examine this contention. However, it
may as well be pointed out that even if the contention is to be examined on
merits, there is no substance in it. The State of Tamil Nadu has framed what
are styled as Tamil Nadu Motor Vehicles Rules. Rule 155-A provides for a
marking system under different heads to rival claimants for permit to
objectively assess who amongst them is the best to whom permit should be
granted. Before proceeding to assign marks under different heads, the Transport
Authority has to screen applications so as to weed out those unsuitable on one
or the other ground mentioned in the rule. One such disqualification is the
failure to provide for night halt cleaners. It was urged that after the
Transport Authority made the enquiry from the first respondent-Corporation
whether it has provision for night halt cleaners, without waiting for the
clarification, the Transport Authority proceeded to dispose of the application.
It was next pointed out that Rule 155-A (3) (d) provides that 5 marks shall be
awarded to the applicant falling within the proviso to cl.
(c) Of Sec. 62 of the Act which means and
implies a State Transport Undertaking. The 478 grievance is that such adhoc
assignment of marks and failure to weed out the application on the ground of
disqualification for not providing night halt cleaners has vitiated the
decision of the Transport Authority. The validity of Rule 155-A and its various
sub clauses came up for consideration of this Court in D.R. Venkachalam &
Ors. vs. Dy. Transport Commissioner & Ors.(1) This Court repelled the
challenge especially to the provision for assigning 5 marks to a State
Transport Undertaking observing as under:
"A State enterprise, in a truly Welfare
State, is charged with a social consciousness and responsibility for its
citizens, an attention to serve them and a willingness to embark on public
utility undertakings better to fulfill people's demands. The public sector
enterprises are expected to be model employers and model servants planning
their budgets, subjecting themselves to public audit and criticism and inquest
by legislative committees and the Houses of the legislature. Profits are their
concern but, more importantly, public weal is their commitment. Such is the
philosophy of the State sector in our socialistic pattern of society." On
the question of assignment of 5 marks to State Transport Undertaking this Court
held that 'this is not an arbitrary stroke of favouritism because there are
many promotional factors bearing on the interest of the travelling public which
a State enterprise qua State enterprise will, but a private enterprise qua
private enterprise will not, take care of. After all, private enterprise has
its primary motivation in profit'. The Court further observed that 'the
superiority in many respects of State Transport Undertakings, in the
legislative judgment, has led to r.
155-A'. The Court ultimately held that the
assignment of marks under r. 155-A is geared to public interest, which is the
desideratum of s. 47 (1) of the Act. Once the assignment of 5 marks to State
Transport Authority Undertaking is held to be valid, the Transport Authority
was perfectly justified in refusing renewal of permits to the petitioners in
comparison to the State Transport Undertaking. As for failure to explain
absence of night halt cleaners, in the absence of concerte evidence, no
inference can be drawn.
This was the only additional contention in
this group of petitions and we find no substance in it.
479 These are all the contentions in this
group of petitions and as we find no substance in any of them, all the
petitions are dismissed with no order as to costs.
N. V. K. Petitions dismissed.
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