Sumer Chand Sharma & ANR Vs. State
of U.P. & ANR [1986] INSC 90 (24 April 1986)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) VENKATARAMIAH, E.S. (J)
CITATION: 1986 AIR 1112 1986 SCR (2) 766 1986
SCC (3) 263 1986 SCALE (1)1280
CITATOR INFO:
D 1987 SC 29 (3) R 1988 SC 303 (2)
ACT:
Uttar Pradesh Motor Vehicles Special
Provisions Act, (Act XXVII of 1976), 1976, sections 1(3) and (5), scope of
Operation of stage carriages by private operators over common sectors of
nationalised routes, provided they did not set down or pick up passengers at
any point on the common sectors despite total ban after the nationalisation of
bus routes in 1950 by virtue of section 10(1)(c) of U.P. Act IX of 1955 and
even after statutory prohibition with effect from 1.4.1971 by section 76 of
Central Act 56 of 1969, by "practice", - Whether such operators are
entitled for renewal of their authorisations under sections 1(3) and (5) of
U.P. Act, 27 of 1976 - Motor Vehicles 1939, section 135(2) and Uttar Pradesh
Road Transport Services (Development) Act, 1955.
HEADNOTE:
After the nationalisation of bus routes in
the Fifties, it was not permissible to permit any private operator to ply a
stage carriage on any sector of the nationalised routes as the schemes of
nationalisation did not provide for it.
However, by virtue of section 10(1) (c) of
Uttar Pradesh Road Transport Services (Development) Act, (Act IX of 1955), 1955
private operators were allowed to ply the stage carriages on the whole of their
routes including the common sectors. U.P. Act (IX of 1955) was repealed by
Central Act LXVI of 1969. By virtue of section 76 inserted as section 135 of
Motor Vehicles Act, the permission granted to them being inconsistent with the
provisions of the MV Act ceased to be effective from 1.4.71, the date of repeal
of the 1955 Act. Despite this statutory prohibition, in the State of Uttar
Pradesh, a "Practice", grew whereby private operators were continued
to be permitted to ply their stage carriages over common sectors of
nationalised routes provided that they did not set down or pick up passengers
at any point on the common sectors. In 1976 the Uttar Pradesh Legislature
enacted the Uttar Pradesh Motor Vehicles Special Provisions Act, 1976 to
provide for the grant 767 of authorisation to holders of stage carriage permits
to ply their stage carriages over common sectors. When the applications moved
by such private operators for renewal of their authorisation, were rejected on
the ground that they did not possess permits on the dates of the nationalisation
notifications, some of them moved the High Court of Allabahad under Article 226
and after the dismissal of their writ petitions have come up by way of special
leave, while some others have filed their petitions directly under Article 32
of the Constitution.
Dismissing the petitions, the Court ^
HELD: 1. Where a route is nationalised
Chapter IV-A of the Motor Vehicles Act, 1939 to the total exclusion of private
operators, a private operator with a permit to ply a stage carriage over
another route which has a common overlapping sector with the nationalised route
cannot be permitted to ply his vehicle over that part of the overlapping common
sector, even if he did not pick up or set down passengers on that part of the
route. While permissions granted under section 10(1)(c) of Uttar Pradesh Road
Transport Services (Development) Act, Act IX of 1955 were patently inconsistent
with the provisions of Chapter IV-A of the Motor Vehicles Act, 1939 and
therefore, ceased to be effective from 1.4.1971, the date of the repeal of 1955
Act, the "Practice" of permitting private operators to ply their
stage carriages over common sectors of nationalised routes, subject to
conditions was wholly unauthorised and without any legal sanctions whatsoever.
Hence, the plying of stage carriages by the private operators before the
commencement of 1976 Act pursuant to such unauthorised and unlawful
"practice" which had grown up in Uttar Pradesh, or under interim
orders of a Court will disentile them to obtain.
Authorisation under section 5 of the Uttar
Pradesh Motor Vehicles Special Provisions Act, 1976 (Act 27 of 1976). [770 A-D]
Adarsh Travels v. State of Uttar Pradesh, [1985] 2 Scale 880 followed.
Hindustan Transport Company v. State of Uttar
Pradesh, A.I.R. [1984] S.C. 953 referred to.
ORIGINAL JURISDICTION: Writ Petition (Civil)
No. 255 of 1986 etc.
768 (Under Article 32 of the Constitution of
India.) S.N. Kacker, K.K. Venugopal, R.K. Jain, Ms. Abha Jain, Gaurav Jain,
Mohd. Iqbal, R.A. Sharma and B.S. Chauhan for the Petitioners.
The Order of the Court was delivered by
CHINNAPPA REDDY, J. The petitioners in these writ petitions and special leave
petitions held permits to ply stage carriages over various routes in Uttar
Pradesh, sectors of which routes were parts of routes which were nationalised
in the Fifties. The nationalisation schemes made no provision for any private
operator plying any stage carriage over any part of the nationalised routes.
Operation of stage carriages by private operators was totally excluded. The
result was that from the respective dates of nationalisation, it was not
permissible to permit any private operator to ply a stage carriage on any
sector of the nationalised route. However, by virtue of sec. 10(1)(c) of Uttar
Pradesh Road Transport Services (Development) Act, IX of 1955, these several
petitioners were allowed to ply their stage carriages on the whole of their
routes including the common sectors. The Uttar Pradesh Road Transport Services
(Development) Act, 1955 was repealed by Central Act 56 of 1969. Act 56 of 1969
came into effect from April 1, 1971. Section 76 of Act 56 of 1969 (which was
inserted into the Motor Vehicles Act 1939 as s. 135) saved permissions or
exemptions granted as well as things done or actions taken under the repealed
enactment so far as they were not inconsistent with the provisions of the Act.
The permission granted under sec. 10(1)(c) of U.P. Act IX of 1955 was patently
inconsistent with the provisions of Chapter IV A of the Motor Vehicles Act,
1939 and the permission, therefore, ceased to be effective from 1.4.1971, the
date of repeal of the 1955 Act. Therefore, it was no longer permissible for the
private operators to ply their vehicles on the common sectors from 1.4.1971
onwards. Despite the statutory prohibition against any private operator plying
a stage carriage on any part of the nationalised route in the absence of a
provision in the scheme of nationalisation, it appears that a practice grew up
(we have borrowed the word 'Practice' from one of the judgments of Allahabad
High Court which was cited before us) in Uttar Pradesh of permitting private
operators to ply their 769 stage carriages over common sectors of nationalised
routes provided they did not set down or pick up passangers at any point on the
common sectors. The "Practice" was wholly unauthorised and without
any legal sanctions whatsoever.
However in 1976, the Uttar Pradesh
Legislature enacted the Uttar Pradesh Motor Vehicles Special Provisions Act,
1976 to provide for the grant of authorisation to holders of stage carriage
permits to ply their stage carriages over common sectors. This was provided by
sec. 5 of the Act. Sec. 5 was interpreted by the court in Hindustan Transport
Company v. State of Uttar Pradesh, A.I.R. [1984] S.C. 953 to mean that the
operator seeking an authorisation should hold a permit on the date of
notification. Section 1(3) of the Act makes the provisions of the Act
applicable 'only in relation to schemes approved or purporting to be approved,
areas and routes notified or purporting to be notified under Chapter IV A of
the Motor Vehicle Act, 1939 as amended in its application to Uttar Pradesh
(hereinafter referred to as Principal Act) and to permits issued under
Principal Act before the commencement of this Act.' Basing their submissions on
s.1(3) of the 1976 Act, Shri S.N. Kacker and Shri K.K. Venugopal learned
counsel for petitioners urged that the petitioners were entitled to obtain
authorisations from the competent authorities under s.5 of the Act, if they had
permits to ply stage-carriages on the routes having common sectors on July 1,
1976 the date of commencement of Act 27 of 1976. They complained that on the
basis of the observations of this court in Hindustan Transport Company v. State
of Uttar Pradesh, (supra) their applications for renewal of their
authorisations had been wrongly rejected on the ground that they did not
possess permits on the dates of the nationalisation notifications. We do not
see any force in the submission of the learned counsel. As pointed out by us,
on the repeal of Act 9 of 1955 it was no longer permissible for the transport
authorities to permit the private operators to ply their stage carriages over
the common sectors, in the case of areas and routes which were nationalised to
the completed exclusion of private operator.
If by reason of the unauthorised and unlawful
practice which had grown up in Uttar Pradesh, private operators had been
allowed to ply vehicles over common sectors, despite statutory prohibition,
that would surely not entitle the operators to obtain authorisations under s.5
of the 1976 Act. Whatever doubts there might have been earlier, it is now
settled by the decision of Constitution Bench in 770 Adarsh Travels v. State of
Uttar Pradesh, [1985] 2 scale 880 that where a route is nationalised under
Chapter IV A of the Motor Vehicles Act to the total exclusion of private
operators, a private operator with a permit to ply a stage carriage over another
route which has a common overlapping sector with the nationalised route cannot
be permitted to ply his vehicle over that part of the overlapping common
sector, even if he did not pick up or set down passengers on that part of the
route. The law as declared by the court in Adarsh Travels v. State of Uttar
Pradesh, (supra) must be considered to have always been the law under the Motor
Vehicles Act. The plying of stage carriages by the private operators before the
commencement of 1976 Act pursuant to the alleged practice which has grown up in
Uttar Pradesh or under interim orders of a court must be considered to be
unauthorised so as to disentitle the private operator from seeking the benefit
of s.5 of Uttar Pradesh Act 27 of 1976.
The writ petitions and special leave
petitions are, therefore, dismissed.
S.R. Petitions dismissed.
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