A. Viswanathan
Vs. State Transport Tribunal, Pondicherry
& Anr [1987] INSC 36 (6 February 1987)
Venkataramiah,
E.S. (J) Venkataramiah, E.S. (J) Oza, G.L. (J) Dutt, M.M. (J)
CITATION:
1987 AIR 731 1987 SCR (2) 179 1987 SCC (2) 63 JT 1987 (1) 369 1987 SCALE (1)249
ACT:
Motor
Vehicles Act, 1939: Sections 46, 57, 62 & 47(1A)--Issue of temporary
permits by R.T.A. repeatedly for a long number of years-Whether
permissible--Temporary permits to be effective for limited period of 4
months--Stage carriage permits--Reservation for Scheduled Castes, Scheduled
Tribes--Constitutionally valid.
HEAD NOTE:
Respondent
No. 1--State Transport Appellate Tribunal set aside a temporary permit to ply a
stage carriage on the pondicherry-Madras route issued under s.62 of the Motor
Vehicles Act, 1939 in favour of the appellant, and granted it in favour of
respondent no. 2 for the remaining period of the temporary permit. Hence this
appeal by special leave.
The
Court found that the period of temporary permit having come to an end, no
further orders are necessary as regards the person who could operate a stage
carriage under that permit.
The
Union Territory of Pondicherry, after 'the lapse of 7 years from the date of
the amendment of section 47 of the Act, issued rules on 12.6. 1985 regarding
reservations to be made in favour of persons belonging to Scheduled Castes and
Scheduled Tribes under Section 47(1A) of the Act. Having regard to the
slackness that is creeping into the manner in which the provisions of the Act
regarding reservation of certain percentage of stage carriage permits to be
made in favour of persons belonging to Scheduled Castes Scheduled Tribes, and
issue of temporary permits are being administered by some Transport
Authorities, this Court,
HELD:
1.(1) Section 47 of the Act deals with the procedure to be followed by a
Regional Transport Authority. In considering an application for a stage
carriage permit the Regional Transport Authority should have due regard to the
following matters, namely:
(a) the
interest of the public generally;
(b) the
advantage to the public of the service to be provided, including the saving of
time likely to be effected thereby and any convenience arising from journeys
not being broken;
(c) the
adequacy of other passenger transport services operating or 180 likely to
operate in the near future, whether by road or other means, between the places
to be served;
(d) the
benefit to any particular locality or localities likely to be afforded by the
service;
(e)
the operation by the applicant of other transport services, including those in
respect of which applications from him for permits are pending; and
(f) the
condition of the roads included in the proposed route or area. It should also
take into consideration any representations made by persons already providing
passenger transport facilities by any means along or near the proposed route or
area, or by any association representing persons interested in the provision of
road transport facilities recognised in this behalf by the State Government, or
by any local authority or police authority within whose jurisdiction any part
of the proposed route or area lies. Thus the paramount consideration that
should govern the decision of a Regional Transport Authority in issuing a
permit to run a stage carriage is the interest of the general publice. [183E-H;
184A-B] 1.(2) It was felt that the permits for plying stage carriages in India
were being cornered by persons belonging to richer and more advanced classes in
society, and persons belonging to the Scheduled Castes, Scheduled Tribes and
other economically weaker sections of the community were not able to compete
with people who were rich and more advanced.
Parliament
therefore amended section 47 of the Act by introducing provisions for making
reservation of certain percentage of stage carriage permits to persons
belonging to Scheduled Castes, Scheduled Tribes and economically weaker
sections of the community, viz Section 47(1A). The reservation made in favour
of the Scheduled Castes and Scheduled Tribes is protected by clause(4) of
Article 15 of the Constitution of India. [184B-D; G] 1.(3) If stage carriage
permits are to be issued then in compliance with sub-section(IA) of Section 47
of the Act certain percentage of the said permits would have to be reserved for
the persons belonging to Scheduled Castes, Scheduled Tribes and if the
Government so desires to the economically weaker sections of the community. If
the issue of such permits is postponed for any reason and only temporary
permits are issued then the persons belonging to Scheduled Castes, Scheduled
Tribes and the weaker sections would not be able to enjoy the benefit of the
reservations. [186H; 187A-B]
In the
instant case, it is regrettable that for some reason or other the State
Transport Authority of Pondicherry has not taken steps to issue regular permits
on 18 routes in respect of which it has entered into inter-State agreements
with the State of Tamil
Nadu even though the
181 need for issuing those permits is beyond dispute. But, on the other hand
for nearly six years, the State Transport Authority of Pondicherry is issuing
temporary permits under s 62 of the Act repeatedly in respect of the routes.
The disadvantages suffered by the persons belonging to the Scheduled Castes,
Scheduled Tribes and the economically weaker sections of the community by the
procedure adopted by the State Transport Authority are obvious. [186F-H] 2(1).
Under
section 62 of the Act it is permissible to a Regional Transport Authority to
issue temporary permits to be effective for a limited period not exceeding four
months without following the procedure laid down in s.57 of the Act. Such
temporary permits can be issued only for the conveyance of passengers on
special occasions such as to and from fairs and religious gatherings or for the
purposes of a seasonal business or to meet a particular temporary need or
pending decision on an application for the renewal of a permit. The Regional
Transport Authority cannot grant a temporary permit for a route or area
specified in an application for grant of a new permit under s.46 or s.54 of the
Act during the pendency of the application. That section further provides that
a temporary permit issued under that section shall in no case be granted more
than once in respect of any route or area specified in an application for the
renewal of a permit during the pendency of such application for renewal. A
temporary permit can thus be granted only if the permit is required for the
purposes or reasons mentioned in clauses (a) to (d) of s.62( D of the Act or in
the circumstances referred to in sub-section(2) thereof.
[188F-H;
189A-B] 2(2). There cannot be also a renewal or revalidation of a temporary
permit. The revalidation or renewal of a temporary permit or exension of the
period for which a temporary permit is issued is not contemplated by law.
[189C-D] In the instant case, the action taken by the State Transport Authority
in issuing temporary permits repeatedly for a long number of years is clearly
in violation of the letter and spirit of section 62 of the Act. [189D] Andhra
Pradesh State Road Transport Corporation v. K. Venkataramireddy and Others,
[1971] 3 S.C.R. 803 and Gandhara Transport Co. Ltd. v. The State of Punjab and others, [1963] Supp. S.C.R.
800, followed.
3(1)
The Regional Transport Authority which is charged with the 182 duty of issuing
permits for transport vehicles under the Act in the public interest should
wherever it finds that the need for issuing such stage carriage permit is
established take immediate steps to invite applications from persons who are
willing to run the stage carriage on the route or in the area in question and
proceed to grant the permit in favour of a deserving applicant. If any person
on his own makes application for the grant of a stage carriage permit, the
Regional Transport Authority should consider such application in accordance
with law and proceed to grant a permit if it finds that it is necessary to do
so. [189D-F] 3(2) If a regular permit is issued it would be in force for a
period not less than three years and not more than five years as may be
determined by the Regional Transport Authority and such permit is capable of
being renewed under section 58 of the Act. But, if the Regional Transport
Authority proceeds to issue a temporary permit then at the end of every four
months, it will have to spend time over the consideration of fresh applications
for the issue of such permits and it is needless to say that the necessity for
making applications at the end of every four months would entail many
undesirable consequences which should be avoided. [189F-H]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 1522 of 1986.
From
the Judgment and Order dated 3.4.1986 of the State Transport Appellate
Tribunal, Pondicherry in M.V.A. No. 15 of 1986.
R. Venkataramani
for the Appellant.
K.R. Nambiar
and S. Srinivasan for the Respondents.
The
Judgment of the Court was delivered by, VENKATARAMIAH, J. This appeal by
special leave is filed against the order dated April 3, 1986 passed by the
State Transport Appellate Tribunal, Pondicherry (hereinafter referred to as
'the Tribunal') setting aside a temporary permit to ply a stage carriage issued
in favour of the appellant in respect of the route Pondicherry to Madras via Thirukanur,
Vikaravandi, Tindivanam and Chingleput under section 62 of the Motor Vehicles
Act, 1939 (hereinafter referred to as 'the Act') and granting it in favour of
Respondent No. 2 A. Balasundaram for the remaining period of the temporary
permit, i.e., upto May 31, 1986. The period of the temporary permit having come
183 to an end no further orders are necessary as regards the person who could
operate a stage carriage under that permit.
This
appeal could have been disposed of with this observation but we are compelled
to pronounce a detailed order in this case having regard to the slackness that
is creeping into the manner in which the provisions of the Act are being
administered by some transport authorities.
Chapter
IV of the Act deals with the control of transport vehicles. Section 42 of the Act
lays down 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 of
the Commission authorising the use of the vehicle in that place in the manner
in which the vehicle is being used. Section 44 of the Act provides for the
constitution of the State Transport Authority and the Regional Transport
Authorities to exercise and discharge the respective powers assigned to them
under the Act. The said Chapter contains the provisions under which permits may
be issued by the Regional Transport Authority for running a stage carriage, a
contract carriage, a private carrier and a public carrier. It also provides for
the issue of permits valid for the whole or any part of India for running
tourist vehicles. Chapter IV contains the provisions regarding the manner in
which the applications have to be made for different kinds of permits and the
procedure that has to be followed in each case for granting such permits. Section
47 of the Act which is in Chapter IV deals with the procedure to be followed by
a Regional Transport Authority. In considering an application for a stage
carriage permit the Regional Transport Authority should have due regard to the
following matters, namely:
(a) the
interest of the public generally;
(b) the
advantages to the public of the service to be provided, including the saving of
time likely to be effected thereby and any convenience arising from journeys
not being broken;
(c) the
adequacy of other passenger transport services operating or likely to operate
in the near future, whether by road or other means, between the places to be
served;
(d) the
benefit to any particular locality or localities likely to be afforded by the
service;
(e)
the operation by the applicant of other transport services, including those in
respect of which applications from him for permits are pending; and
(f) the
condition of the roads included in the proposed route or area. It should also
take into consideration any representations made by persons already providing
passenger transport facilities by any means along or near the proposed route or
area, or by any association representing persons interested in the provision
184 of road transport facilities recognised in this behalf by the State
Government, or by any local authority or police authority within whose
jurisdiction any part of the proposed route or area lies. A reading of the
aforesaid provisions shows that the paramount consideration that should govern
the decision of a Regional Transport Authority in issuing a permit to run a
stage carriage is the interest of the general public.
Since
it was felt that the permits for plying stage carriages issued by the several
Regional Transport Authorities in India were being cornered by persons
belonging to richer and more advanced classes in society and persons belonging
to the Scheduled Castes, Scheduled Tribes and other economically weaker
sections of the community were not able to compete with people who were rich
and more advanced, Parliament amended section 47 of the Act by Act 47 of 1978
by introducing provisions for making reservation of certain percentage of stage
carriage permits to persons belonging to Scheduled Castes, Scheduled Tribes and
economically weaker sections of the community. After the above amendment
section 47(1A) of the Act provides that the Government of a State shall reserve
in that State certain percentage of stage carriage permits for the Scheduled
Castes and the Scheduled Tribes and the reservation of permits under the said
provision is directed to be made in the same ratio as in the case of
appointments made by direct recruitment by public services of the State. Such
reservation appears to be mandatory.
Sub-section
(1C) of section 47 of the Act provides that the Government of a State may,
having regard to the extent to which persons belonging to economically weaker section
of the community have been granted stage carriage permits in that State--(a)
reserve in that State such percentage of stage carriage permits, as may be
prescribed, for persons belonging to economically weaker sections of the
community;
or (b)
notwithstanding anything contained in the proviso to sub-section (1) of section
47 give preference, in such manner as may be prescribed, to applications for
stage carriage permits from such persons. Sub-section (1D) of section 47 of the
Act provides that the number of permits reserved under subsection (lB) and
clause (a) of sub-section (1C) of section 47 shall not exceed fifty per cent of
that total number of stage carriage permits granted during a calendar year. The
reservation made in favour of the Scheduled Castes and the Scheduled Tribes is
protected by clause (4) of Article 15 of the Constitution of India which
provides that nothing in Article 15 shall prevent the State from making any
special provision for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
185
Such special provision would, therefore, be out of the mischief of clause (1)
of Article 15 which provides that the State shall not discriminate against any
citizen on grounds only of religion, race, caste sex, place of birth or any of
them. It is also in consonance with Article 46 of the Constitution. Such
special provision is necessary to assist the members belonging to the Scheduled
Castes and Scheduled Tribes and to the weaker sections of society economically
as they cannot otherwise compete with the other sections of society. After the
introduction of sub-sections (1A) to (1H) into section 47 of the Act the
Government of India sent a communication to all the State Governments and Union
Territories to implement the reservations for members belonging to Scheduled
Castes and Scheduled Tribes provided therein without delay. It reads thus:
"Government
of India Ministry of Shipping and Transport No. TGM(70) New Delhi dated the
24th August, 1979 To All the State Govt/Union Territory Administrations.
Sub:
Reservation of permits for scheduled castes/ scheduled tribes as provided in
the Motor Vehicles (Amendment) Act 1978.
Sir.
I am
directed to refer to this Ministry's letter of even number dated the 31st
January 1979 on the above subject and to say that so far as reservation in favour
of scheduled castes and scheduled tribes is concerned, the provisions of the
Motor Vehicles (Amendment) Act, 1978 can be implemented straight way. The
implementation of this provision need not wait for the framing of any Rules,
since the rules are required to be framed only in respect of circumstances
under which, the manner in which, and the extent to which the reservation may
be carried forward.
Since
the question of carrying forward will arise only after the expiry of the
current year, rules in this respect can be finalised during the course of the
year. The State Govts/Union Ter186 ritories are requested to kindly have the
provisions of the Act in regard to reservation for scheduled castes and
scheduled tribes in respect of stage carriage permits, public carrier permits
and national permits implemented without further delay.
2. The
State Govts/Union territory Administrations are also requested to indicate the
number of permits of various categories granted, after the provisions of the
Motor Vehicles (Amendment) Act, 1978 was brought into force; the number
reserved for scheduled castes/scheduled tribes and the number of permits
actually granted to scheduled castes and scheduled tribes with reasons for
shortfall if any.
Yours
faithfully, Sd/B.R.
CHAVAN
DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA".
The
Union Territory of Pondicherry after the lapse of nearly seven Years from the
date of the amendment of section 47 of the Act issued rules regarding
reservations to be made in favour of persons belonging to Scheduled Castes and
Scheduled Tribes under section 47(1A) of the Act on 12.6.
1985.
On the issue of said rules a number of writ petitions were filed by persons not
belonging to Scheduled Castes and Scheduled Tribes questioning the validity of
sub-section (1A) of section 47 of the Act and the said petitions are still
pending. We shall not say anything more on the merits of those petitions.
It is
regrettable that for some reasons or other the State Transport Authority of Pondicherry
has not taken steps to issue regular permits on about 18 routes in respect of
which it has entered into inter-State agreements with the State of Tamil Nadu even though the need for issuing
those permits is beyond dispute. But, on the other hand for nearly six years,
it is stated, that the State Transport Authority of Pondicherry is issuing
temporary permits under section 62 of the Act repeatedly in respect of the routes.
the disadvantages surffeted by the persons belonging to the Scheduled Castes,
Scheduled Tribes and the economically weaker sections of the community by the
procedure adopted by the State Transport Authority are obvious. If stage
carriage permits are to be issued then in compliance with sub-section (1A) of
section 47 of the Act certain percentage of the said permits would 187 have to
be reserved for the persons belonging to Scheduled Castes, Scheduled Tribes and
if the Government so desires to the economically weaker sections of the
community. If the issue of such permits is postponed for any reason and only
temporary permits are issued then the persons belonging to Scheduled Castes,
Scheduled Tribes and the weaker sections would not be able to enjoy the benefit
of the reservation.
It is
unfortunate that even though Parliament had enacted the amendments nearly nine
years ago the benefit of those provisions has not been availed of by those for
whose benefit they were enacted. We are informed that the appellant and some
others belonging to Scheduled Castes or Scheduled Tribes have made applications
for grant of regular permits and those applications have remained undisposed of
on account of the litigiousness of others.
The
action taken by the State Transport Authority in issuing temporary permits
repeatedly for a long number of years is clearly in violation of the letter and
spirit of section 62 of the Act under which such temporary permits are issued.
Section 62 of the Act reads thus:
"62.
Temporary permits--(1) A Regional Transport Authority may without following the
procedure laid down in section 57, grant permits, to be effective for a limited
period not in any case to exceed four months, to authorise the use of a
transport vehicle temporarily-(a) for the conveyance of passengers on special
occasions such as to and from fairs and religious gatherings, or (b) for the
purposes of a seasonal business, or (c) to meet a particular temporary need, or
(d) pending decision on an application for the renewal of a permit and may
attach to any such permit any condition it thinks fit.
Provided
that a temporary permit under this section shall, in no case, be granted in
respect of any route or area specified in an application for the grant of a new
permit under section 46 or section 54 during the pendency of the application:
Provided
further that a temporary permit under this 188 section shall, in no case, be
granted more than once in respect of any route or area specified in an
application for the renewal of a permit during the pendency of such application
for renewal.
(2).
Notwithstanding anything contained in subsection (1), a temporary permit may be
granted thereunder in respect of any route or area where-(i) no permit could be
issued under section 48 or section 51 or section 54 in respect of that route of
area by reason of an order of a court or, other competent authority restraining
the issue of the same, for a period not exceeding the period for which the
issue of the permit has been so restrained; or (ii) as a result of the
suspension by a court or other competent authority of the permit of any vehicle
in respect of that route or area, there is no transport vehicle of the same
class with a valid permit, in respect of that route or area, or there is no
adequate number of such vehicles in respect of that route or area, for a period
not exceeding the period of such suspension;
Provided
that the number of transport vehicles in respect of which the temporary permit
is so granted shall' not exceed the number of vehicles in respect of which the
issue of a permit has been restrained or as the case may be, the permit has
been suspended." Under section 62 of the Act it is permissible to a
Regional Transport Authority to issue temporary permits to be effective for a
limited period not exceeding four months without following the procedure laid
down in section 57 of the Act. Such temporary permits can be issued only for
the conveyance of passengers on special occasions such as to and from fairs and
religious gatherings or for the purposes of a seasonal business or to meet a
particular temporary need or pending decision on an application for the renewal
of a permit. The regional Transport Authority cannot grant a temporary permit
for a route or area specified in an application for grant of a new permit under
section 46 or section 54 of the Act during the pendency of the application.
That section further provides that a temporary permit issued under that section
shall in no case be granted more that once in respect of any 189 route or area
specified in an application for the renewal of a permit during the pendency of
such application for renewal. A temporary permit can thus be granted only if
the permit is required for the purposes or reasons mentioned in clauses (a) to
(d) of section 62(1) of the Act which are mentioned above or in the
circumstances referred to in subsection (2) thereof. This is clear from the
decision of this Court in Andhra Pradesh State Road Transport Corporation v. K.
Venkataramireddy and others, [1971] 3 S.C.R. 803. In that decision this court
held that a temporary permit could be issued only for the purposes or reasons
mentioned in clauses (a) to (d) of section 62 of the Act as it stood then.
Subsequent to the amendment of section 62 of the Act a temporary permit can
also be issued under the circumstances mentioned in sub-section (2) of section
62 of the Act. There cannot be also a renewal or revalidation of a temporary
permit as held by this CoUrt in Gandhara Transport Co. Ltd. v. The State of Punjab and others, [1963] Supp. 1 S.C.R.
800. The revalidation or renewal of a temporary permit or extension of the
period for which a temporary permit is issued is not contemplated by law. The
issue of temporary permits by the State Transport Authority in the instant case
continuously for a number of years is clearly in violation of the statute. The
Regional Transport Authority which is charged with the duty of issuing permits
for transport vehicles under the Act in the public interest should wherever it
finds that the need for issuing such stage carriage permit is established take
immediate steps to invite applications from persons who are willing to run the
stage carriage on the route or in the area in question and proceed to grant the
permit in favour of a deserving applicant. If any person on his own makes
application for the grant of a stage carriage permit, the Regional Transport
Authority should consider such application in accordance with law and proceed
to grant a permit if it finds that it is necessary to do so.
It may
also be noted that if a regular permit is issued, it would be in force for a
period not less than three years and not more than five years as may be
determined by the Regional Transport Authority and such permit is capable of
being renewed under section 58 of the Act. But, if the Regional Transport
Authority proceeds to issue a temporary permit then at the end of every four
months it will have to spend time over the consideration of fresh applications
for the issue of such permits and it is needless to say that the necessity for
making applications at the end of every four months would entail many
undesirable consequences which should be avoided. With these observations we
dispose of the appeal.
M.L.A.
Appeal disposed of.
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