Karnataka State Road Transport
Corporation, Bangalore Vs. B. A. Jayaram & Ors [1984] INSC 21 (31 January
1984)
MADON, D.P.
MADON, D.P.
MUKHARJI, SABYASACHI (J)
CITATION: 1984 AIR 790 1984 SCR (2) 768 1984
SCALE (1)142
CITATOR INFO :
1986 SC 319 (4) RF 1987 SC 958 (4) 1990 SC
412 (4)
ACT:
Motor Vehicles Act. (Act IV of 1939) Section
57(8) interpretation of- Whether the section creates any legal fiction-Grant of
an application for variations in conditions of permit, whether results in grant
of a new permit-Existing inter-state permit holders exempted under the approved
scheme of notionalisation -Grant of request for increase in number of trips or
number of vehicles is not inconsistent with the provisions of the scheme-Motor
Vehicles Act Section 68FF read with section 57(8) explained.
HEADNOTE:
On February 2, 1966, the Respondent No. 1, B.
A. Jayaram had been granted by the Regional Transport Authority, Bangalore, a
stage carriage permit on the inter- state route Guddapah in the State of Andhra
Pradesh to Bangalore in the Karnataka State, which was duly countersigned by
the State Transport Authority, Andhra Pradesh. On 10.1 1968, the Mysore
(Karanataka) State granted its approval under section 68(D)(2) of the Motor
Vehicle Act, 1939, to a scheme, popularly known as the "Kolar Pocket
Scheme", to nationalize passenger transport service between Bangalore and
various places in the Kolar District, as also certain routes within the Kolar
District, covering 87 inter- state routes referred to in its appendix. Under
clause 4 of the "Kolar Pocket Scheme", the existing permit holders on
the inter-state routes, were permitted to continue to operate such inter-state
routes subject to the conditions that their permit shall be rendered
ineffective for the overlapping portions of the notified routes.
The route between Bangalore and Royal pad in
the State of Karnataka formed part of the route between Bangalore and Cuddapah
and was covered by the Scheme, with the result that the First Respondent's
permit for the said portion of the Bangalore-Cuddapah route became ineffective
and consequent that the vehicles operated by him could not either pick up or
set down passengers on the Bangalore-Royalpad portion of the Bangalore Cuddapah
route though they could traverse the said portion. On January 24,1973, the
first respondent made an application to the Second Respondent the Karnataka
State Transport Authority for varying the conditions of the stage carriage
permit granted to him by increasing the number of trips on the Bangalore Cuddappah
route from one trip per day to two trips per day so as to eliminate one
overnight halt at either of the two terminal. The said application having been
rejected, the First Respondent filed a writ petition No. 3360/74 which was
allowed and a mandamus issued to the Second Respondent to dispose of the
application in accordance with law holding that the said Scheme did not ope-
769 rate as a bar to increasing the number of trips on an existing inter-state
route. The Second Respondent accordingly invited representation in connection
therewith.
In the meantime, the Appellant the Karnataka
State Road Transport Corporation, filed on November 27, 1974 a writ petition
No. 6399/74 to recall the order made in the said writ petition No. 3360/74 and
to rehear it after impleading the Appellant as a respondent thereto. The writ
petition was dismissed holding that the appellant was not a necessary party to
writ petition No. 3360/74. On December 23/24, 1974, the Second Respondent
granted to the first respondent the additional trip applied for by him. Against
the order of dismissal of the W.P. 6399/74, the Appellant filed, an appeal No.
WA 949/1979 under section 4 of the Karnataka High Court Act, 1961 (Mysore Act V
of 1962). On a reference by the Division Bench, the Full Bench by its Judgment
delivered on September 19, 1979, opined that "If the condition of a permit
for operating a stage carriage over a route is altered by increasing the
maximum number of trips over that route specified earlier in the permit such variation
of the condition of the permit does not amount to grant of a permanent".
The Third Respondent who had been granted
three stage carriage permits on three different inter-state routes, namely,
Bangalore to Cuddapah, Bangalore Kalabasti, and Bangalore to Vellore applied on
June 11, 1979 to the Second Respondent for varying the conditions of the said
three permits by increasing the number of vehicles by an additional vehicle on
each route and by increasing the number of trips from two to four on each route,
that is for two round trips, which were granted. The Fourth respondent who did
not file any objection to the applications of the Third Respondent filed three
writ petitions being writ petitions Nos. 16247-16249 of 1979 in the High Court
against the said orders of variations of the Third Respondent's permits. The
writ petitions having been dismissed he preferred three appeals being W.A. Nos.
1285-87/1979 and an application to implead himself as a respondent in WA
No.949/74 filed by the appellant, though he had never objected to the grant of
the variation to the First Respondent earlier. The writ appeals were dismissed
on 22.2.1980. His application to implead himself as a respondent to the said
Writ Appeal No. 949/79 was granted.
The Fourth Respondent thereafter filed three
special leave petitions Nos. 5141-43 of 1979 against the order dated 22.2.1980
dismissing his appeals. He has also filed another special leave petition No.
4771/80 against the Judgment in W.A. No. 949/74 by virtue of his having been
allowed to be impleaded by the High Court of Karnataka as third respondent
thereto though it was not all necessary since in the writ appeal No. 949 of
1974 which was dismissed on 22.2.1980, the Karnataka High Court granted to the
appellant a certificate of fitness to appeal to the Supreme Court.
Dismissing the appeal, the Court
HELD: 1: 1. Section 57(8) of the Motor
Vehicles Act, 1939 does not create a legal fiction and grant of an application
for variations in the conditions of a permit in respect of matter set out in
section 57(8) does not result in the grant of a new permit. Admittedly the
language of sub-section (8) is not one which is normally used by legislatures
in creating a legal fiction for sub.s. (8) does not state that an application
of the nature referred in that sub-section is to be deemed to be an application
for the grant of a new permit. [787D-E] 1: 2. Section 57 is a procedural
section. Its various sub-sections form 770 an integral whole providing for the
manner in which an application for variation of certain conditions of a permit
is to be made, the mode of inviting objections thereto and the disposal of such
applications and objections. [787E-F] 1: 3. Reading sub-section (8) in the
context of sub- sections (3) to (7) and in juxtaposition with them, it is clear
that the legislative instant in enacting that sub- section was to prescribe the
procedure to be followed when an application for variation of the conditions of
a permit referred to in that sub-section is made, this procedure being the same
as is laid down in sub-sections (3) to (7) with respect to an application for a
new stage carriage permit or a new public carrier's permit. It is for the
purpose of providing that the procedure to be followed in the case of an
application made under sub-sections (8) is to be the same as the procedure to
be followed in the case of an application for a new permit that sub-section (8)
uses the words "shall be treated as an application for the grant of a new
permit." By the use of these words what sub-section (8) does is to
incorporate in it the provisions of sub- sections (3) to (7). This is a very
different thing from enacting a legal fiction. [787B-D] East Eng. Dwelling Co.
Ltd. v. Finsbury Borough Council, [1951] 2 All. E.R. p. 587, 589 H.L.; quoted
with approval.
State of Bombay v. Pandurang Vinayak
Chaphalkar and others. [1953] S.C.R. p. 773, 778-9; M/s. Shivchand Amolokchand
v. Regional Transport Authority and Anr. [1984] I S.C.R. 288=A.I.R. 1984 S.C.
9; followed.
1: 4. Assuming that the application for
variation of the conditions of a permit referred to in sub-section (8) of
section 57 is to be deemed to be by a fiction of law to be an application for a
new permit, the question to be considered is for what purpose is such an
application to be deemed to be an application for grant of a new permit.
Reading sub-sections (3) to (8) of section 57
as a whole, it is clear that the only purpose is to apply to such an
application for variation the procedure prescribed by sub- sections (3) to (7)
of section 57 and not for the purpose of providing that when the application
for variation is granted, the permit so varied would be deemed to be a new
permit. If the permit so varied were to be deemed to be a new permit, the
result would be anomalous. [789A-C] Ex-parte Walton, In Re Levy L.R. [1881] 17
Ch. D. 743;
756 CA; Arthur Hill v. East and West Dock Co.
L.R. [1884] 9 A C. 455, 456; The Bengal Immunity Co. Ltd. v. The State of Bihar
and others, [1955] 2 S.C.R. 603. 647; The Commissioner of Income-tax, Bombay
City, Bombay v. Amarchand N. Shroff [1963] Supp. I S.C.R. 699, 709; Maharani
Madalasa Devi v. M. Ramnarayan (P) Ltd. and others, [1965] 3 S.C.R. 421, 424;
Commissioner of Income-tax, Gujarat v.
Vadialal Lalubhai, [1973] 1 S.C.R. 1058, 1064; referred to.
2. In the case of an existing inter-state
permit exempted under the said Scheme an increase in the number of trips or the
number of vehicles allowed to he operated under such a permit would not be
inconsistent with the provision of the said Scheme. There is no inconsistency
between an increase in the number of vehicles or trips allowed under such a
permit and the provisions of the said scheme. So far as the portions of the
interstate route covered by the said scheme are concerned, the permits of the
existing permit- holders have been 771 rendered ineffective. Further by the
said Scheme as notified by a notification dated January 10, 1980, the existing
permit-holders are not allowed to pick up or set down passengers on these
portions of the notified routes. Whether one vehicle or more traverse these
portions or whether the same vehicle traverses such portion more than once cannot
in any manner affect the services operated by the Appellant on such portions
since no passengers are allowed to be picked up or set down on such portions
All that would happen is that these vehicles, in the source of their interstate
operation would traverse these portions of the notified routes without in any
way operating as stage carriages for such portion . [790C- F]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 891 of 1980.
From the Judgement and order dated the 22nd
February, 1980 of the Karnataka High Court in Writ Appeal No. 949 of 1 974.
K. Parasaran, Soliciter General, Vineet
Kumar, Naresh Kumar and Miss Deepika Saxena for the appellant.
K.K. Venugopal, K.N. Bhat, M. Kangaswamy,
MRV. Achar, S. Ravindra Bhatt and Nanjappa Ganapathy for the respondents.
The Judgment of the Court was delivered by
MADON, J. This Appeal has been filed by the Karnataka State Road Transport
Corporation pursuant to a certificate granted by the Karnataka High Court
against its Judgment and order in Writ Appeal No. 949 of 1974 on the following
two questions of law:- "1. Whether the conditions of a permit can be
varied so as to increase the number of trips and/or the number of vehicles
allowed to be operated under that permit ?
2. Whether the conditions of a permit held by
an existing operator on an inter-State route exempted under the Kolar Pocket
Scheme, can be varied so as to allow an increase in the number of vehicles
operating under that permit ? Before embarking on a discussion of the above
questions, it will be convenient to relate the facts which have given rise to
this Appeal. On February 2, 1966, the First Respondent, B.A. Jayaram, 772 had
been granted by the Regional Transport Authority, Bangalore, a stage carriage
permit on the inter-State route Cuddapah in the State of Andhra Pradesh to
Bangalore in the State of Karnataka for one trip only and a stage carriage
permit no. 20/65-66 in respect of this route was issued to him on March 16,
1966. This permit was counter-signed by the State Transport Authority Andhra
Pradesh, on March 21, 1967.
By Notification No. S.O. 111 dated January
10, 1968, published in the Mysore Government Gazette dated January 25, 1968,
the Government of Mysore (now Karnataka) granted its approval under sub-section
(2) of section 68-D of the Motor Vehicles Act, 1939 (IV 1939) (hereinafter
referred to as "the said Act") to a scheme set out in the Schedule to
the said Notification. The said Scheme covered 87 intra-State routes in the
State of Karnataka set out in the Appendix to the said Scheme. The effect of
the said Scheme was to nationalize passenger transport service between
Bangalore and various places in the Kolar District as also certain routes
within the Kolar District. For this reason, they said Scheme was popularly
known as the Kolar Pocket Scheme'. The class of service covered by the said
Scheme was "Stage Carriages, Mofussil". Clause 4 of the said Scheme
inter alia provided as follows:
"Whether the services are to be operated
by the State Transport Undertaking to the exclusion, complete or partial, of
other persons or otherwise:
-------------------------------------------------------
The State Transport Undertaking will operate services on all the routes, to the
complete exclusion of other persons except that: (a) that existing permit
holders on the inter State routes, may continue to operate such inter-State
routes subject to the conditions that their permit shall be rendered
ineffective for the overlapping portions of the notified routes..." The
said Scheme was implemented with effect from January 1, 1969, by issuing a
stage carriage permit to the Appellant under sub-section (1) of section 68-F of
the said Act.
The route between Bangalore and Royalpad in
the State of Karnataka formed part of the route between Bangalore and Cuddapah
and was covered by the said Scheme. Accordingly, the First Respondent's permit
for the said portion of the Bangalore Cuddapah 773 route became ineffective
with the result that the vehicles operated by the First Respondent could not
either pick up or set down passengers on the Bangalore-Royal pad portion of the
Bangalore Cuddapah route though they could traverse the said portion. On
January 24, 1973, the First Respondent made an application to the Karnataka
state Road Transport Authority, the Second Respondent before us, for varying
the conditions of the stage carriage permit granted to him by increasing the
number of trips on the Bangalore-Cuddapah route from one trip per day to two
trips per day This was apparently done to eliminate an overnight halt at either
of the two termini. The said application was rejected by the Second Respondent
on April 22, 1974, as not being maintainable in view of the said Scheme,
without publishing it for inviting objections thereto. The First Respondent
thereupon filed a writ petition in the Karnataka High Court, being Writ
Petition No. 3360 of 1974, against the said order of the Second Respondent. On
September 25, 1974, the said writ petition was allowed and the court issued a
writ of mandamus to the Second Respondent to dispose of the First Respondent's
said application in accordance with law, holding that the said Scheme did not
operate as a bar to increasing the number of trips of an existing inter-State
route. In pursuance of the said order of the High Court, the Second Respondent
published the First Respondent's said application inviting representations in
connection therewith. In the meanwhile the Appellant filed on November 27,
1974, a writ petition in the Karnataka High Court, being Writ Petition No. 6399
of 1974, to recall the order made in the said Writ Petition No. 3360 of 1974
and to rehear the said writ petition after impleading the Appellant as a
respondent thereto. A learned Single Judge of the said High Court dismissed the
Appellant's said writ petition on December 2, 1974, holding that the Appellant
was not a necessary party to the said Writ Petition No. 3360 of 1974.
On December 23/24, 1974, the Second
Respondent granted to the First Respondent the additional trip applied for by
him.
Against the order of the learned Single Judge
dismissing its writ petition, the Appellant filed alia intra-Court appeal under
section 4 of the Karnataka High Court Act. 1961 (Mysore Act V of 1962), being
Writ Appeal No. 949 of 1979 The Division Bench, which heard the said appeal, referred
the following question to a larger Bench for its opinion:
"If the condition of a permit for
operating a stage carriage over a route is altered by increasing the maximum
number of trips over that route, specified earlier ill that 774 permit, does such
variation of the condition of the permit amount to grant of a new permit
?" By its Judgment delivered on September 19, 1979, the Full Bench
answered the said question as follows:
"If the condition of a permit for
operating a stage carriage over a route is altered by increasing the maximum
number of trips over that route specified earlier in the permit such variation
of the condition of the permit does not amount to grant of a new permit."
We will now relate the circumstances in which the Third Respondent, S. Joginder
Singh, the sole proprietor of Janatha Travels, Bangalore, and the Fourth
Respondent, D.P. Sharma, sole proprietor of Sharma Transport, Bangalore, made
their entry on the stage of this litigation. The Third Respondent had been
granted three stage carriage permits on three different inter-state routes,
namely, Bangalore to Cuddapah, Bangalore to Kalahasti and Bangalore to Vellore.
After coming into force of the said Scheme,
the third Respondent made applications on June 11, 1979, to the second
Respondent for varying the conditions of the said three permits by increasing
the number of vehicles by an additional vehicle on each route and by increasing
the number of trips from two to four on each route, that is, for two round
trips These applications were granted be the second Respondent. The Fourth
Respondent did not file any objections to the said applications for variation
made by the Third Respondent, nor does it appear that the had filed any
objection to the said application for variation made by the First Respondent.
The Fourth Respondent, however., filed three writ petitions, being Writ
Petitions Nos. 16247 to 16249 of 1979, in the Karnataka High Court against the
orders of the Second Respondent granting variation of the Third Respondent's said
permits. The said writ petitions were dismissed by a learned Single Judge of
the Karnataka High Court and against these orders of dismissal the Fourth
Respondent preferred three writ appeals, being Writ Appeals Nos. 1285 to 1287
of 1979. He also made an application to implead himself as a respondent in the
said Appeal No. 949 of 1974 out of which the present appeal before us arises.
The Fourth Respondent's said application was
granted and he was impleaded as Fourth Respondent to the said Writ Appeal No.
949 of 1974. The Third Respondent before us was the Third Respondent in the
said Writ Appeal No. 949 of 1974.
775 By Notification HD 45 TMI 76 dated
January 10, 1980, the said Scheme was modified by substituting clause (d)
thereof. The substituted clause (d) inter alia provided as follows:
"The State Transport undertaking will
operate the services on all routes to the complete exclusion of other persons
except the following :- x x x x x (c) The operation of services by the permit
holders who have already been granted permits by the Transport Authorities on
the date of publication of the modified c scheme on inter-State routes which
are included in the inter-State agreement entered into by the Government of any
other State provided that the operator on such route shall not be entitled to
pick up and set down passengers in such portion of the Notified routes."
By its Judgment and order dated February 22, 1980, a Division Bench of the
Karnataka High Court dismissed the said writ appeals filed by the Fourth Respondent
. The Division Bench held that in view of the opinion given by the Full Bench
in the said Writ Appeal No. 949 of 1974 it was permissible under sub-section
(8) of section 57 of the said Act to vary the conditions of a stage carriage
permit in respect of a route so as to increase the number of trips on that
route allowed under such permit; that increase in the number of trips on a
route can be effected either by increasing the frequency of operation of the
existing number of vehicles playing on that route without increasing the
existing number of vehicles operating on that route or by increasing the number
of vehicles operating on that route;
and that the Fourth Respondent was not an
existing inter- State Permit holder nor had filed any objection before the
Second Respondent to the applications for variation made by the Third
Respondent and had, therefore, no locus to file the said writ petitions. By its
Judgment and order, made on the same day, the said Division Bench dismissed the
Appellant's said Writ Appeal No. 949 of 1974 with no order as to costs and
granted to the Appellant a certificate of fitness to appeal to this Court on
the two questions which we have set out earlier; in pursuance of which the
present Appeal has been filed. The Fourth Respondent has also filed in this
Court a petition for special leave to appeal, being Special Leave Petition No.
4771 of 1980, against the said Judgment and order in the said Writ Appeal No.
949 of 1974.
He has also 776 filed three other petitions
for special leave to appeal to this Court, being Special Leave Petitions Nos.
5141 to 5143 of 1980 against the common Judgment and order of the said High
Court in the said Writ Appeals Nos. 1285 to 1287 of 1979. These petitions have
been ordered to be listed after the disposal of this Appeal and will
accordingly be disposed of by separate orders.
We now turn to the rival contentions raised
before us at the hearing of this Appeal. On behalf of the Appellant, it was
submitted that under sub-section (8) of section 57 an application to vary the
conditions of a permit in respect of a matter specified in that sub-section
"shall be treated as an application for the grant of a new permit."
Subsection (8), therefore, creates a legal fiction and a legal fiction must be
taken to its logical conclusion. An application to vary the conditions of a
permit in respect of a matter specified in sub-section (8) when granted would,
therefore, result in the grant of a new permit. One of the matters specified in
subsection (8) is a variation of the conditions of a stage carriage permit by
increasing the number of trips above the specified maximum. If such variation
were permitted by the result of the operation of the statutory fiction enacted
in sub-section (8) of Section 57 the permit so varied would in law be a new
permit. Under section 618-FF of the said Act no permit can be granted except in
accordance with the provisions of a scheme. The said Scheme prohibits of a new
permit and, therefore, to vary the conditions of a stage carriage permit by
increasing the number of trips or the number of vehicles would be tantamount to
granting a new permit which would be contrary to the said Scheme and thus not
permissible under section 68-FF. According to the Appellant, the Judgment of
the learned Single Judge in the said Writ Petition No. 3360 of 1974 filed by
the : First Respondent allowing the said Writ Petition No. 3360 of 1974 and
setting aside the order of the Second Respondent rejecting as not maintainable
the First Respondent's said application for varying the conditions of his
inter-State carriage permit by increasing the Number of trips by one and
directing the Second Respondent by a writ of mandamus to dispose of the said
application in accordance with law was erroneous as also the decision of the
Full Bench in the said Civil Appeal No. 949 of 1974, holding that such
variation did not amount to grant of a new permit. It was further submitted
that increasing the number of vehicles on a route resulted in an increase in
the number of trips and an application for varying the conditions of a permit
by increasing the number of vehicles allowed to ply on the route in respect of
which such permit was given was, therefore, 777 equally an application for the
grant of a new permit and such an application could not, therefore, be granted
in respect of a portion of a route covered by the said Scheme.
On the other hand, it was submitted on behalf
of The contesting Respondents that sub-section (8) of section 57 did not create
a legal fiction and all that it did was to provide that the procedure . for
considering an application for varying the conditions of a permit in respect of
the matters specified in that sub-section was to be the same as the procedure
for considering an application for granting a new permit. In the alternative,
it was submitted that if sub-section (8) of section 57 created a legal fiction,
it was only for the purpose of the procedure to be followed in processing an
application for a variation in the conditions of a permit in respect of a matter
specified in that sub- section and cannot be extended beyond that purpose so as
to create another legal action, namely, that permit the conditions of which
were so allowed to be varied would be deemed to be a new permit. It was further
submitted that the said Scheme, both prior to and after its modification,
permitted the existing permit holders on inter-State routes to continue to
operate on such routes subject to the condition that their permits be rendered
ineffective for the overlapping portions of the notified routes only, with the
result that they could not pick up and set down passengers on such portions
only. It was also submitted that increasing the number of trips or vehicles on
such inter- . State routes was not in any manner inconsistent with the
provisions of the said Scheme, whether prior to or after its notification.
On the above rival contentions, two main
questions arise for our consideration, namely, (1) Whether sub-section (8) of
section 57 creates a legal fiction by reason of which the grant of an
application for variation in the conditions of a permit in respect of a matter
set out in that sub- section results in the grant of a new permit ? (2) Whether
an increase in the number of trips or the number of vehicles above the maximum
specified in an existing inter-State stage carriage permit would be
inconsistent with the provisions of the said Scheme ? In order to determine
these questions, it is necessary to refer to the relevant provisions of the
said Act. Chapter IV of the said 778 Act, which consists of sections 42 to 68,
provides for control of transport vehicles. A "transport vehicle," is
defined by clause (33) of section 2 as meaning "a public service vehicle
or a goods vehicle". A "public service vehicle" is defined by
clause (25) of section 2 as meaning "any motor vehicle used or adapted to
be used for the carriage of passengers for hire or reward, and includes a motor
cab, contract carriage, and stage carriage;". The expression "stage
carriage" is defined by clause (29) or section 2 as follows:
"(29) "stage carriage" means a
motor vehicle carrying or adapted to carry more than six persons excluding the
driver which carries passengers for hire or reward at separate fares paid by or
for individual passengers, either for the whole journey or for stages of the
journey." As the said Scheme and its modification relate only to stage
carriages, we are not concerned in this Appeal with contract carriages or goods
vehicles and it is unnecessary to look at the definitions of those expressions
or the provisions of the said Chapter IV relating to these types of vehicles.
Under section 42 no owner of a transport
vehicle can use or permit the use of the vehicle in any public place (whether
or not such vehicle is actually carrying any passenger or goods) save in
accordance with the conditions of a permit granted or counter signed by a
Regional or State Transport Authority or the Commission, that is, the Inter-
State Transport Commission constituted under section 63-A, authorizing the use
of the vehicle in that place in the manner in which the vehicle is being used.
Section 43 confers power upon the State Government to control road transport by
issuing directions to the State Transport Authority in the form of
notifications in the official Gazette. Section 44 empowers the State Government
by notification in the official Gazette to constitute for the State a State
Transport Authority to exercise and discharge the powers and functions
specified in subsection (3) of section 44 and in like manner to constitute
Regional Transport Authorities to exercise and discharge throughout specified
areas the powers and functions conferred on Regional Transport Authorities by
the said Chapter IV. The said Chapter IV provides for grant of different
permits, namely, state carriage permits, contract carriage permits, private
carrier's permits, public carrier's permit and temporary Permits, as also for
applications to 779 be made in respect of these classes of permits, the
procedure to be A followed in dealing with such applications, for cancellation
and suspension of permits and other cognate matters. Section 45 sets out the
general provisions with respect to applications for permits irrespective of the
type of permits applied for and it prescribes the authority to whom an
application for a permit is to be made. Under sub-section (3) of section 45
every applicant for the grant of a new stage carriage permit or public
carrier's permit is required to deposit, by way of security, with his
application an amount in such manner and at such rate not exceeding Rs. 200 per
motor vehicle, as the State Government may, with reference to each class of
vehicle, by notification in the official Gazette, specify.
Under sub-section (4) of section 45 the
security so furnished is liable to be forfeited in whole or in part by the
transport authority if it is satisfied that the application was made for the
purpose of preventing the issue of a temporary permit under section 62. The
whole or part of this security deposit as has not been forfeited is to be
refunded to the applicant, as soon as may be, after the disposal of his
application. Other sections in the said Chapter IV male special provisions with
respect to applications for different types of permits. Section 46 deals with
an application for a stage carriage permit. Such an application is to contain
the particulars specified in clauses (a) to (f) of the said section 46. The
particulars required to be specified by clauses(a) to (c) of the said section
46 are material for our purpose and it will be, therefore, convenient to
reproduce these clauses these clauses provide as follows:
"(a) the route or routes or the area or
areas to which the application relates;
(b) the number of vehicles it is proposed to
operate in relation to each route or area and the type and seating capacity of
each such vehicle;
(c) the minimum and maximum number of daily
trips proposed to be provided in relation to each route or area and the time
table of the normal trips.
Explanation-For the purposes of this section
57, "trip" means a single journey from one point to another, and
every return journey shall be deemed to be a separate trip." 780 Section
47 prescribes the matters which a Regional Transport Authority is to have
regard to in considering an application for a stage carriage permit. It also
requires the Regional Transport Authority to take into consideration any
representations made by persons already providing passenger transport
facilities by any means along or near the route or area or by any association
representing persons interested in the provision of road transport facilities
recognized in this behalf by the State Government or by any local authority of
police authority within whose jurisdiction any part of the proposed route or
area lies.
The said section also provides for
reservation of certain percentage of stage carriage permits for the Scheduled
Castes, and the Scheduled Tribes and persons belonging to economically weaker
sections of the community. Under section 48, subject to the provisions of section
47, a Regional Transport Authority may, on an application made to it under
section 46 grant a stage carriage permit in accordance with the application or
with such modifications as it deemed fit or refuse to grant such a permit.
Sub-section (3) of section 48 provides for conditions which may be attached to
a stage carriage permit. Amongst the conditions which can be attached are
conditions that the vehicle or vehicles be used only in a specified area or on
a specified route or routes, the minimum and maximum number of daily trips to
be provided in relation to any route or area generally or on specified days and
occasions and a condition that within municipal limits and such other areas and
places as may be prescribed, passengers or goods shall not be taken up or set
down except at specified points. Sections 49 to 51 deal with contract carriage
permits, sections 52 and 53 with private carrier's permits and sections 54 to
56 with public carrier's permits.
Section 57 is important since the answer to
the first question which we have to determine in this Appeal depends upon the
true interpretation of sub-section (8) thereof and in order to understand the
scope and effect of that sub- section, it is necessary to reproduce section 57.
The said section 57 provides as follows:
"27. Procedure in applying for and
granting permits-(1) An application for a contract carriage permit or a private
carrier's permit may be made at any time.
(2) An application for a stage carriage
permit or a public carrier's permit shall be made not less than six weeks
before the date on which it is desired that the permit shall take effect, or if
the Regional Transport Authority appoints dates for the receipt of such
applications, on such dates.
(3) on receipt of an application for a stage
carriage permit or a public carrier's permit, the Regional Transport Authority
shall make the application available for inspection at the office of the
Authority and shall publish the application or the substance thereof in the
prescribed manner together with a notice of the date before which
representations connection therewith may be submitted and the date, not being
less than thirty days from such publication, on which, and the time and place
at which, the application and any representations received will be considered:
Provided that, if the grant of any permit in
accordance with the application or with modifications would have the effect of
increasing the manner of vehicles operating in the region, or any area or on
any route within the region, under the class of permits to which the
application relates, beyond the limit fixed in that behalf under sub-section
(3) of section 47 or sub-section (2) of section 55, as the case may be, the
regional Transport Authority may summarily refuse the application without
following the procedure laid down in this sub-section.
(4) No representation in connection with an
application referred to in sub-section (3) shall be considered by the Regional
Transport Authority unless it is made in writing before the appointed date and
unless a copy thereof is furnished simultaneously to the applicant by the
person making such representation.
(5) When any representation such as is
referred to in sub-section (3) is made, the Regional Transport Authority shall
dispose of the application at a public hearing at which the applicant and the
person making the representation shall have an opportunity of being heard
either in person or by a duly authorised representative.
(6) When any representation has been made by
the persons or authorities referred to in section SO to the effect that the
number of contract carriages for which permits have already been granted in any
region or any area 782 within a region is sufficient for or in excess of the
needs of the region or of such area, whether such representation is made in
connection with a particular application for the grant of a contract carriage
permit or otherwise, the Regional Transport Authority may take any such steps
as it considers appropriate for the hearing of the representation in the
presence of any persons likely to be affected thereby.
(7) When a Regional Transport Authority
refuses an application for a permit of any kind, it shall give to the applicant
in writing its reasons for the refusal.
(8) An application to vary the conditions of
any permit, other than a temporary permit, by the inclusion of a new route or
routes or a new area or, in the case of a stage carriage permits by increasing
the number of trips above the specified maximum or by altering the route
covered by it or in the case of a contract carriage permit or a public
carrier's permits by increasing the number of vehicle covered by the permit,
shall be treated as an application for the grant of a new permit.
Provided that it shall not be necessary to
treat an application made by the holder of a stage carriage permit who provides
the only service on a route or in any area to increase the frequency of the
service so provided, without any increase in the number of vehicles.
(9) A Regional Transport Authority may,
before such date as may be specified by it in this behalf, replace any stage
carriage permit or public carrier's permit or public carrier's permit granted
by it before the said date by a fresh permit conforming to the provisions of
Section 48 or section 51 or section 56, as the case may be, and the fresh
permit shall be valid for the same route or routes or the same area for which
the replaced permit was valid;
Provided that no condition other than the
condition which was already attached to the replaced permit or which could have
been attached thereto under the law in force when that permit was granted shall
be attached to the fresh permit except with the consent in writing of the
holder of the permit.
783 (10) Notwithstanding anything contained
in section 58, a permit issued under the provisions of sub-section (9) shall be
effective without renewal for the remainder of the period during which the
replaced permit would have been so effective." We will must conclude our
survey of the relevant provision of the said Act before proceeding to ascertain
the correct interpretation to be placed upon sub-section (8) of section 57.
Section 588 provides that a stage carriage permit or a contract carriage
permit, other than a temporary permit issued under section 62, shall be
effective without renewal For such period. not less than three years and not
more than five years, as the Regional Transport Authority may specify in the
permit. A private carrier's permit or a public carrier's permit other than 3
temporary permit is to be effective without renewal for a period of five years.
Under sub-section (2) of section 58 an
applications for renewal of a permit is to be made and disposed of as if it
were an application for a permit. Subsection (2) also prescribes the time-limit
within which applications for renewal are to be made and it further provides
that other conditions being equal, an application for renewal shall be granted
preference over new applications for permits.
Section 59 prescribes the general conditions
to be attached to all permits. Section 60 deals with cancellation and
suspension of permits. It is unnecessary to refer to the other provisions of
the said Chapter IV.
Chapter IV-A of the said Act provides for
nationalization of road transport service. Under section 68- B the provisions
of Chapter IV-A and the rules and orders made thereunder are to have effect
notwithstanding anything inconsistent therewith contained in Chapter IV of the
said Act or any other law for the time being in force or in any instrument
having effect by virtue of any such law. Section 68-C deals with the
preparation of a scheme by a State Transport Undertaking for the purpose of
providing an efficient, adequate, economical and property coordinated road
transport service. Such a scheme is to be published in the official Gazette and
also in such other manner as the State Government may direct. Section 68-D
provides for filing of objections to a proposed scheme. Under Sub-section (2)
of section 68-D, after considering the objections which may have been made to a
proposed scheme and after giving an opportunity to the objector or his
representatives and the representatives of the State Transport Undertaking to
be heard in 784 the matter, the State Government may approve or modify the scheme.
The scheme as approved or modified is to be published in the official Gazette
and it is there upon to become final and is to be called the approved scheme
and the area or route to which it relates is to be called the notified area or
notified route. Section 68-F provides for cancelation or modification of
approved schemes. Section 68- F provides for issue of a stage carriage permit
or a public carrier's permit or a contract carriage permit in respect of a
notified area or notified routes to the State Transport Undertaking. Section
68-FF provides as follows:
"68-FF- Restriction on grant of permits
in respect of a notified area or notified route.-Where a scheme has been
published under sub-section (3) of section 68- D in respect of any notified are
or notified route, the State Transport Authority or the Regional Transport
Authority, as the case may be, shall not grant any permit except in accordance
with the Provisions of the scheme " There is a proviso to the said section
68-FF with which we are not concerned.
We now turn to a consideration of the scope
and effect of sub-section (8) of section 57. That sub-section does not apply to
applications to vary any of the conditions of a permit but applies only to
applications to vary certain conditions of a permit. These applications are:
(1) an application to vary the conditions of
any permit, other than a temporary permit, by the inclusion of a new route or
routes or a new area;
(2) an application to vary the conditions of
a stage carriage permit by increasing the number of trips above the specified
maximum;
(3) an application to vary the conditions of
a stage carriage permit by altering the route covered by it;
(4) an application to vary the conditions of
a contract carriage permit by increasing the number of vehicles covered by the
permit: and (5) an application to vary the conditions of a public carrier's 785
permit by increasing the number of vehicles covered by the permit.
In all these five cases, sub-section (8)
provides that the application "shall be treated as an application for the
grant of a new permit". As seen above, under section 68-F when a scheme
has been approved and published under sub- section (3) of section 68-D in
respect of any notified area or notified route, the State Transport Authority or
the Regional Transport Authority, as the ease may be, is prohibited from
granting any permit except in accordance with the provisions of that scheme.
The said Scheme confers a right upon the Appellant to op-rate the services on
all routes mentioned in the appendix to the said Scheme to the complete
exclusion of all other persons except existing permit holders on inter-State
routes with the condition that the permits of such existing permit holders were
to be rendered ineffective for the overlapping portions of the notified routes
and they would not be entitled to pick up or set down passengers on such
portions of the notified routes.
If the effect of sub-section (8) of section
57 were as contended for by the Appellant, that is, if the said sub section (8)
were to create a legal fiction by which an application for variation of the
conditions of a permit of the nature referred to in that subsection is to be
deemed to be an application for the grant of a new permit and such variation
when granted would result in the grant of a new permit, then clearly by reason
of the prohibition contained in section 68-FF, the granting of such application
would be inconsistent with the provisions of the said Scheme and would not be
permissible in law. Considerable emphasis were placed on behalf of the
Appellant on the words ' shall be treated as an application for the grant of a
permit occurring in the said sub-section (8) and on the basis of this
phraseology, it was submitted that an application for variation of a condition
of a permit referred to in subsection (8) of section 57 was by a fiction of law
put on the same footing as an application for the grant of a new permit and it,
therefore, followed as a corollary that such an application if granted would
result in the grant of a new permit.
In a passage which has become a classic Lord
Asquith in the House of Lords in the case of East End Dwellings Co. Ltd. v
Finsbury Borough Gouncil said:
786 "If you are bidden to treat an
imaginary state of affairs as real, you must surely, unless prohibited from
doing so, also imagine as real the consequence and incidents which, if the
putative state of affairs had in fact existed, must inevitably have flowed from
or accompanied it...The statute says that you must imagine a certain state of
affairs; it does not say that having done so, you must cause or permit your
imagination to boggle when it comes to the inevitable corollaries of that state
of affairs " This passage has been referred to or quoted with approval in
a number of decision of this Court. One of the earliest of them as the State of
Bombay v. Pandurang Vinayak Chaphalkar and others.
It is unnecessary to refer to other cases of
this Court in which this passage was cited and approved. The question, however,
is whether sub-section (8) of section 57 creates a legal fiction. Admittedly,
the language of that sub-section is not one which is normally used by
legislature in creating a legal fiction. Sub-section (8) does not state that an
application of the nature referred to in that subsection is to be deemed to be
an application for the grant of a new permit which would have been the case
were the intention of Parliament to create a legal fiction. The arguments on
behalf of the Appellant are founded upon a basis which has no relation to the
purpose underlying sub-section (8).
Section 57 is a procedural section, Its
various sub-sections form an integra whole providing for the manner in which an
application for variation of certain conditions of a permit is to be made, the
mode of inviting objections thereto and the disposal of such applications and
objections. Subsection (1) provides when an application for a contract carriage
permit or a private carrier's permit can be made. Sub- section (2) provides
when an application for a stage carriage permit or a public carriages permit
should be made.
Thus, these two subsections deal with the
time when applications for grant of certain classes of permits can be made.
Sub-sections (3) to (7) prescribe the procedure to be followed by the Regional
Transport Authority when it receives an application for a stage carriage permit
or a public carrier's permit. Sub-section (9) deals with applications to vary
certain conditions of particular permits. Sub-section (9) confers power upon
the Regional Transport Authority to replace a stage 787 carriage permit,
contract carriage permit or public carrier's permit granted by it by a fresh
permit and sub- section (10) provides that such fresh permit shall be effective
without renewal for the remainder of the period during which the replaced
permit would have been so effective. Sub-section (8) comes immediately after
sub- sections (3) to (7) and when read in the context of these sub-sections and
in juxtaposition with them, it is clear that the legislative intent in enacting
that subsection was to prescribe the procedure to be followed when an
application for variation of this conditions of a permit referred to in that
sub-section is made, this procedure being the same as is laid down in sub
sections (3) to (7) with respect to an application for a new stage carriage
permit or a new public carrier's permit. It is for the purpose of providing
that the procedure to be followed in the case of an application made under
sub-section (8) is to be the same as the procedure to be followed in the case
of an application for a new permit that sub-section (8) uses the words
"shall be treated as an application for the grant of a new permit."
By the use of these words what sub-section (8) does is to incorporate in it the
provisions of sub- sections(3) to (7). This is a very different thing from
enacting a legal fiction. We find that in a recent case, namely, Civil Appeal
No. 3787 of 1983-Myls Shivchand Amolakchand v. Regional Transport Authority and
another subsection (8) of section 57 has been interpreted in the same way as we
have done. In that case too there was a modification made in an approved scheme
whereby plying of stage carriages by private operators upon a portion of the
notified route connecting a district headquarter and not more than 20 kms. in
length was permitted. On the said modification being made, the applicants whose
permits for a portion of the notified route, namely, from Shivpuri to
Sautanwana, had become ineffective on the coming into force of the approved
scheme applied to the Regional Transport Authority for the extension of the
route specified in their permits, so as to include the route from Shivpuri to
Santawana. The Regional Transport Authority rejected the said application inter
alia on the ground that no extension of the route could be granted without
following the procedure laid down in sub-section (3) of section 47 of the said
Act. In the writ petition filed by the appellants before the High Court of
Madhya Pradesh, the High Court took the same view. This Court allowed the
appeal and set aside the Judgment and order of the 788 High Court. In that case
too, this Court had to consider the effect of sub-section (8) of section 57.
The Court observed:
"The context in which sub-section (8)
occurs and its juxtaposition with sub section (3) to (7) in section 58 clearly
indicate that what is sought to be made applicable to an application referred
to in sub- section (8) by treating it as an application for grant of a new
permit, is the procedure set out in sub- sections (3) to (7) of section 58 and
nothing more..An application to vary the conditions of a permit as set out in
sub-section (8) of section 57 is undoubtedly to be treated as an application
for grant of a new permit, but that is only for the purpose of applying the
procedure set out in sub-sections (3) to (7) of the said section. It is not an
application for a new permit and if it is granted, the permit for the extended
route does not become a new permit in the hands of the applicant. It is the
same permit which now, after the granting of the application, covers the
extended route." Even if sub-section (8) of section 57 can be viewed as
creating a legal fiction the question which would arise would be for what
purpose such legal fiction was created. As was observed by lord James in Ex
Porte Walton, In re Levy;
"When a statute enacts that something
shall be deemed to have been done, which in fact and in truth was not done, the
Court is entitled and bound to ascertain for what purposes and between what
persons the statutory fiction is to be resorted to." This passage was
quoted with approval by the House of Lords in Arthur Hill v. East and West
India Dock Company.
This principle of statutory interpretation
has been accepted by this Court. In The Bengal Immunity Co. Ltd. v. The State
of Bihar and Ors it was held that "a legal fiction is to be limited to the
purpose for which it was created and should not be extended beyond that
legitimate field." This was reiterated in The Commissioner of Income tax,
Bombay City, Bombay v. Amarchand N. Shroff, Maharani Mandalsa Devi v. M.
Ramnarain P. Ltd. and others and Commissioner of Income-tax, Gujarat v. Vadilal
Lallubhai.
Assuming, therefore, that an application for
variation of the conditions of a permit referred to in sub-section (8) of
section 57 is to be deemed by a fiction of law to be an application for the
grant of a new permit the question to which we must address ourselves is for
what purpose is such an application for variation deemed to be an application
for grant of a new permit. Reading sub-sections (3) to (8) of section 57 as a
whole, it is clear that the only purpose is to apply to such an application for
variation the procedure prescribed by sub-sections (3) to (7) of section 57 and
not for the purpose of providing that when the application for variation is
granted, the permit so varied would be deemed to be a new permit. If a permit
so varied were to be deemed to be a new permit, the result would be anomalous.
As we have seen, under sub-section (3) of section 45 every application for the
grant of a new stage carriage permit or a public carrier's permit is to be
accompanied by a deposit by way of security of an amount not exceeding Rs. 200
per motor vehicle as the State Government may, with reference to each class of
vehicle, by notification in the official Gazette, specify. The object of
providing for such a deposit is made clear by sub-section (4) of section 45.
The object is that if the transport authority is satisfied that such
application was made for the purpose of preventing the issue of a temporary
permit under section 62, then it can forfeit the whole or part of the security
deposit. This consideration does not and cannot be applied to an application
for variation of the conditions of a permit referred to in sub-section (8) of
section 57. Further, under subsection (1) of section 58 a stage carriage permit
or a contract carriage permit, other than a temporary permit, is to be
effective without renewal for such period, not less than three years and not
more than five years, as the Regional Transport Authority may specify in the
permit.
Under sub-section (2) of section 58, an
application for renewal of a stage carriage permit or a public carrier's permit
is to be made not less than 120 days before the date of its expiry and an
application for renewal of a permit in any other case is to be made not less
than 60 days before the date of its expiry. Under sub- section (3) a permit may
be renewed on an application made and 790 disposed of as if it were an application
for a permit. If a permit in respect of which a condition referred to in sub-
section (8) of section 57 is allowed to be varied is to be deemed to be a new
permit, it would automatically follow that such a permit would get extended for
a further period even though no application for its renewal was made and that
in granting such variation, the Regional Transport Authority would have to
specify for what period, not less than three years, the permit so varied would
be effective. Such a result could not have been in the contemplation of
Parliament and has not been provided for.
Even though when the condition of a permit is
allowed to be varied on an application made under sub-section (8) of section
57, the permit so varied is not a new permit, the question still remains
whether in the case of an existing inter-State permit exempted under the said
Scheme an increase in the number of trips or the number of vehicles allowed to
be operated under such a permit would not be inconsistent with the provisions
of the said Scheme. We fail to see any inconsistency between an increase in the
number of vehicles or trips allowed under such a permit and the provisions of
the said Scheme. So far as the portions of the inter-State route covered by the
said Scheme are concerned, the permits of the existing permit-holders have been
rendered ineffective. Further, by the said Scheme as modified, the existing
permit-holders are not allowed to pick up or set down passengers on these
portions of the notified routes. Whether one vehicle or more traverse these
portions or whether the same vehicle traverses such portion more than once
cannot any manner affect the services operated by the Appellant on such
portions since no passengers are allowed to be picked up or set down or such
portions. All that would happen is that these vehicles, in the course of their
inter-State operation would traverse these portions of the notified routes
without in any way operating as stage carriages for such portions.
It is, therefore, clear that the Second respondent
was in error in rejecting the First Respondent's said application for variation
without following the procedure laid down in sub-sections (3) to (7) of section
57 merely on the ground that granting such application would be to grant a new
permit and would be inconsistent with the provisions of the said Scheme. The
learned Single Judge was, therefore, clearly right in allowing Writ Petition
No. 3360 of 1964 filed by the First Respondent and in issuing a writ of
mandamus against the Second Respondent directing him to dispose of the First
Respondent's said application according to law. We are further of the opinion
that the High Court was right in dismissing the said Writ Appeal No. 949 of
1974 filed by the Appellant.
We would like to observe that it is difficult
to understand how a certificate was granted by the High Court with respect to
the first question contained in it. The question as framed does not bring out
the actual controversy between the parties. The controversy was not whether the
conditions of a permit can be varied so as to increase the number of trips or
the number of vehicles allowed to be operated under that permit as mentioned by
the High Court in the certificate granted by it. The real controversy was
whether when the condition of a permit is varied so as to increase the number
of trips or the number of vehicles allowed to be operated under that permit it
would amount to the grant of a new permit, the grant of which would not be in
accordance with the provisions of the said Scheme by reason of the provisions
of section 68-FF.
For the reasons set out above, this Appeal
fails and is dismissed. The Appellant will pay to Respondent Nos. 1 to 3 the
costs of this Appeal. Respondent No. 4 will bear and pay his own costs of this
Appeal.
S.R. Appeal dismissed.
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