Brij Mohan Parihar Vs. M.P. State Road
Transport Corporation & Ors [1986] INSC 250 (25 November 1986)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) DUTT, M.M. (J)
CITATION: 1987 AIR 29 1987 SCR (1) 369 1987
SCC (1) 13 JT 1986 935 1986 SCALE (2)894
ACT:
Motor Vehicles Act, 1939: ss. 68-C, 68-D,
68-F, 68-FF, 42 and 59: State Road Transport Corporation--Permit issued
to--Private operator whether entitled to ply his motor vehicle as nominee of
Corporation.
Road Transport Corporation Act, 1950:
s.19(2)(h)--State Road Transport Corporation
not authorised to allow private operator to run his vehicle on a permit issued
to the Corporation.
HEADNOTE:
Section 68-FF of the Motor Vehicles Act, 1939
prohibits grant of permit in respect of notified area or notified route by
State Transport Authority or the Regional Transport Authority except in
accordance with the scheme published under subs. (3) of s. 68-D but provides
for grant of temporary permits in cases where no application for a permit has
been made by the State Transport Undertaking in respect of such notified area
or route. Section 59 bars transfer of permits from one person to another except
with the permission of the concerned Transport Authority. Section 42 prohibits
the owners of transport vehicles from plying them in public places except in
accordance with the conditions of the permit.
Under an agreement entered into with the
respondent Corporation the petitioner was permitted to PlY his bus on a
specified route as a nominee of the former for a period of five years ending on
December 23, 1982. Thereafter the respondent was issued temporary permits and
the petitioner was permitted by it to ply his motor vehicle on monthly basis.
The route in question had by that been brought within a scheme published under
s. 68-C of the Act.
The respondent through an advertisement dated
August 12, 1984 invited tenders from private operators for the grant of
privilege of running buses as stage carriages as its nominees. Aggrieved by the
said advertisement the petitioner filed a writ petition in the High Court
assailing the decision to invite tenders as arbitrary and illegal, and for a
writ in the nature of mandamns directing the respondent Corporation to allow
him to ply his motor vehicle as its nominee for a further period of five years.
Under an interim order of the Court he continued to ply his bus as a stage
carriage till May 31, 1985. Subsequently, the High Court dismissed the petition
since the scheme 370 published under s. 68-C of the Act had been approved and
brought into effect from June 1, 1985.
Dismissing the petition for special leave,
the Court,
HELD: 1.1 It is not permissible under the Motor
Vehicles Act for a State Transport Undertaking to obtain a permit under Chapter
IV-A and to allow a private operator as its nominee to operate under that
permit his motor vehicle as a stage carriage on the notified route. It cannot
by granting such permission collect any money either as nomination fees or as
royalty or supervision charges. Section 42 and 59 of the Act which equally
apply to permits issued under Chapter IV-A, debar all holders of permits,
including the State Transport Undertakings from indulging in such unauthorised
trafficking in permits. [373E, 374A, D]
1.2 The petitioner was not, therefore,
entitled to the issue of a writ in the nature of mandamus to the respondent
Corporation to allow him to operate his' motor vehicle as a stage carriage
under the permit obtained by the latter, as its nominee. The agreement entered
into by the petitioner with the respondent was clearly contrary to the Act and
could not be enforced. The advertisement issued by the respondent was equally
ineffective. [374E]
2. If the respondent Corporation cannot run
its vehicle under a permit issued to it, it must surrender it so that the
Regional Transport Authority may grant the permit to some other deserving
applicant or it must transfer it to somebody else with the permission of the
Regional Transport Authority granted under s.59 of the Act. It cannot allow the
permit to be used by others either for consideration or without consideration.
If it does so it would be exercising the power of the Regional Transport
Authority. The Corporationcannot thus indirectly clutch at the jurisdiction of
the Regional Transport Authority. [374F]
3.1 Even though the Corporation was
established by the State Government under the Road Transport Corporations Act, 1950
and the State Government had by an executive order approved the action of the
Corporation to allow private operators to operate their vehicles under the
permits issued to the Corporation, the Corporation could not in law allow its
nominees to exploit the permits in such manner. [374B]
3.2 Section 19(2)(h) of the Road Transport
Corporation Act only authorises the Corporation to purchase or otherwise secure
by agreement vehicles owned or possessed by the owner of any other undertaking
for use thereof for the purpose of its undertaking. It does not authorise the
371 Corporation to permit another person to run his vehicle on his own under a
permit issued to the Corporation by paying some amount to the Corporation.
[375B]
3.3 It would have been different if there had
been a law corresponding to the Uttar Pradesh Motor Vehicles Special Provisions
Act (27 of 1976) under which the competent authority can authorise such
operation subject to the conditions specified therein. [374C] Adarsh Travels
Bus Service & Ant., v. State of U.P. & Ors., [1985] 4 S.C.C. 557; Sumer
Chand Sharma & Anr. v. State of U.P. & Anr. [1986] 3 S.C.C. 263,
referred to.
CIVIL APPELLATE JURISDICTION: Special Leave
Petition (Civil) No. 3486 of 1986.
From the Judgment and Order dated 6.1.1986 of
the Madhya Pradesh High Court in Misc. Petition No. 2577 of 1984.
K.K. Venugopal, G.L. Sanghi, M.N. Krishnamani
and Diwan Balak Ram for the Petitioner.
Rameshwar Nath for the Respondents.
The order of the Court was delivered by
VENKATARAMIAH, J. The petitioner in the above petition filed under Article 136
of the Constitution has prayed for special leave to appeal against the judgment
of the High Court of Madhya Pradesh in Miscellaneous Petition No. 2577 of 1984
dated 6.1.1986. In the petition filed under Article 226 of the Constitution
before the High Court the petitioner had questioned the validity of an
advertisement issued by the Madhya Pradesh Road Transport Corporation
(hereinafter referred to as 'the Corporation') inviting tenders from owners of
motor vehicles for plying their vehicles on the routes mentioned therein as
nominees of the Corporation under the permits issued in favour of the
Corporation under the provisions of the Motor Vehicles Act, 1939 (hereinafter
referred to as 'the Act'). It is alleged that the petitioner who was an
unemployed graduate entered into an agreement with the Corporation to ply his
bus as a nominee on the route Gwalior to Chinor via Dabra for a period of five
years ending on December 23, 1982. The route in question came within scheme No.
38 published under section 68-C of the Act. The permit of the Corporation was
to expire on 23.12.1982..Therefore the Corporation applied for renewal of its
permit but since it took time for finalisation, temporary permits were issued
from time to time. The petitioner was permitted to ply his 372 bus on the
monthly basis during that period. Under the agreement the petitioner was liable
to pay periodically certain amount to the Corporation as nomination fees or
supervision charges and additional taxes. But on 12.8.1984, as stated earlier,
tenders were invited by the Corporation from private operators for the grant of
the privilege of running buses as stage carriages as the nominees of the
Corporation. Aggrieved by the said advertisement the petitioner filed the writ
petition, referred to above, in the High Court. The petitioner contended that
even though he had been regularly paying the nomination fees and taxes, yet the
Corporation in order to earn more money by way of nomination fees had invited
tenders from others with a stipulation that tenders of those giving the highest
offers by way of nomination fees would be accepted and they would be appointed
nominees of the Corporation to ply the stage carriages. The petitioner further
contended that the decision to invite tenders was arbitrary and illegal. In the
Writ Petition he obtained an interim order dated 11.9.1984 under which he was
allowed to operate his motor vehicle as a stage carriage on the same terms and
conditions as the nominee of the CorpOration. The petitioner continued to ply
his motor vehicle on the route in question on the basis of the temporary
permits issued in the name of the Corporation till 31.5.1985. Since no
temporary permit was obtained by the Corporation thereafter the petitioner
could not ply his motor vehicle in question. In the meanwhile under the orders
passed by this Court in Special Leave Petition Nos. 941, 4667 to 4669, and 71157117
of 1985 dated July 22, 1985 filed by some others, the petitioners therein who
were similarly situated were allowed to ply their motor vehicles on some other
routes as the nominees of the Corporation for a period of five years. The above
order, it is alleged, was passed on a concession made bY the Corporation. The
said order is not supported by reasons. The petitioner relying upon the above
order contended before the High Court in the writ petition filed by him that he
should also be permitted to ply his motor vehicle as a nominee of the
Corporation for a further period of five years. The High Court declined to
grant the request of the petitioner since by then the scheme No. 38 had been
approved and had come into effect from June 1, 1985 and dismissed the writ
petition on January 6, 1986. Aggrieved by the order of the High Court the
petitioner has filed this petition.
It is contended on behalf of the petitioner
that since the petitioner had been permitted to operate his motor vehicle as a
stage carriage service as a nominee of the Corporation under a programme called
'Half a Million Job Programme' initiated by the Government of India which was
being implemented by the State of Madhya Pradesh he could not be denied the
privilege of continuing to operate his motor vehicle on the notified route in
question. Reliance is also placed by the learned counsel for the petitioner on
the order passed by this Court on July 22, 1985 in some of the special leave
petitions referred to above permitting the petitioners therein to operate their
motor 373 vehicles as the nominees of the Corporation for a further period of
five years. After the disposal of the special leave petitions referred to above
on July 22, 1985 by this Court, on October 17, 1985 a Constitution Bench of
this Court delivered its judgment in Adarsh Travels Bus Service & Anr., v.
State of U. P. & Others. [1985] 4 S.C.C. 557. In that case the Constitution
Bench held that reading sections 68~C, 68-D(3) and 68-FF of the Act together it
was clear that once a scheme was published under section 68-D of the Act in
relation to any area or route or portion thereof, whether to the exclusion,
complete or partial of other persons or otherwise, no person other than the
State Transport Undertaking could operate a stage carriage on the notified
route or in the notified area except as provided in the scheme itself.
Admittedly, the approved scheme published
under section 68-D of the Act has come into operation in respect of the route
in question excluding the operation of stage carriages by all others. Section
68-FF of the Act states that where an approved scheme has been published under
sub-section (3) of section 68-D of the Act in respect of any notified area or
notified route the State Transport or the Regional Transport Authority, as the
case may be, shall not grant any permit except in accordance with the
provisions of the scheme. It further provides that where no application for a
permit has been made by the State Transport Undertaking in respect of any
notified area or notified route in pursuance of an approved scheme, the State
Transport Authority or the Regional Transport Authority, as the case may be,
may grant temporary permits to any person in respect of such notified area or
notified route subject to the condition that such permit shall cease to be
effective on the issue of a permit to the State Transport Undertaking in
respect of that area or route. It is not, however, permissible under the Act
for the Corporation to obtain a permit under Chapter IV-A of the Act and to
allow a private operator as its nominee to operate under that permit his motor
vehicle as a stage carriage on the notified route. It cannot by granting such
permission collect any money either as nomination fees or as royalty 'or
supervision charges. Section 59 of the Act which lays down the general
conditions attached to all permits provides that save as provided in section 61
of the Act, a permit shall not be transferable from one person to another
except with the permission of the Transport Authority which granted the permit
and shall not without such permission operate to confer on any person to whom a
vehicle covered by the permit is transferred any right to use that vehicle in
the manner authorised by the permit. Section 61 of the Act only deals with the
question of transfer of the permit on the death of the holder of the permit in
favour of his successor. Section 42 of the Act provides that no owner of a
transport vehicle shall 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 countersigned by
a Regional or State TranSport Authority or the Commission 374 authorising the
use of the vehicle in that place in the manner in which the vehicle is being
used. Section 42 and section 59 of the Act which are in Chapter IV of the Act
apply to permits issued under Chapter IV-A of the Act also since in Chapter
IV-A of the Act we do not find any provision which is inconsistent with these
two sections. Section 68-B of the Act only provides that Chapter IV-A of the
Act and the rules and orders made thereunder shall have effect notwithstanding
anything inconsistent therewith 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. Even though the Corporation is established by the State
Government under the Road Transport Corporations Act, 1950 and the State
Government has by an executive order approved the action of the Corporation to
allow private operators to operate their vehicles under the permits issued to
the Corporation as the nominees of the Corporation, the Corporation cannot in
law allow its nominees to exploit the permits by running their motor vehicles
against payment of some amount to the Corporation since there is no statutory
provision authorising the grant of such permission. It would have been
different if there had been a law corresponding to the Uttar Pradesh Motor
Vehicles Special Provisions Act (27 of 1976) under which the competent
authority can authorise such operation subject to the conditions specified therein
(See Sumer Chand Sharma and Another v. State of U.P. and Another, [1986] 3
S.C.C. 263). The provisions of the Act and in particular sections 42 and 59
clearly debar all holders of permits including the Corporation from indulging
in' such unauthorised trafficking in permits. The agreement entered into by the
petitioner with the Corporation is clearly contrary to the Act and cannot,
therefore, be enforced. In the circumstances, the petitioner is not entitled to
the issue of a writ in the nature of mandamus to the Corporation to allow him
to operate his motor vehicle as a stage carriage under the permit obtained by
the Corporation as its nominee. It follows that the advertisement issued by the
Corporation is equally ineffective. The position would not be different even
where the permit is issued in favour of the Corporation under Chapter IV of the
Act. If the Corporation cannot run its vehicle under a permit issued to it, it
must surrender it so that the Regional Transport Authority may grant the permit
to some other deserving applicant or it must transfer it to some body else with
the permission of the Regional Transport Authority granted under section 59 of
the Act. It cannot however allow the permit to be used by somebody else to run
his vehicle either for consideration or without consideration. If it does so it
would be exercising the power of the Regional Transport Authority. The Corporation
cannot thus indirectly clutch at the jurisdiction of the Regional Transport
Authority. It is hoped that the Corporation will desist from entering into such
agreements with third parties, which are wholly illegal and from continuing to
allow them to run their vehicles as its nominees.
The concerned Regional Transport Authority
should immediately take action to stop such illegal operation of transport 375
vehicles on all routes, both notified and non-notified routes.
It is seen that in one of the documents filed
before the High Court it was asserted that the Corporation could allow private
operators to operate their vehicles in the name of the Corporation under
section 19(2)(h) of the Road Transport Corporation Act, 1950. That provision
only authorises the Corporation to purchase or otherwise secure by agreement
vehicles owned or possessed by the owner of any other undertaking for use
thereof by the Corporation for the purposes of its undertaking. It does not
however authorise the Corporation to permit another person to run his vehicle
on his own under a permit issued to the Corporation by paying some amount to
the Corporation. Hence no reliance can be placed on the above provision.
It was lastly contended on behalf of the
petitioner that since the Corporation was not in a position to operate its
motor vehicles on the notified routes in accordance with the approved scheme,
the scheme itself is liable to be quashed.
Since the said prayer is not made in the writ
petition, we cannot consider the said question It is open to the petitioner if
he is so advised to approach the High Court for appropriate relief in this
regard. We may, however, record here that in the counter-affidavit filed before
this Court it is stated that the Corporation is already operating its own motor
vehicles on the route in question. The Special Leave Petition is, however,
dismissed.
P.S.S. Petition dismissed.
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