Goverdhan
Lal Dhawan Vs. State of Bihar & Ors [1988] INSC 190 (27 July 1988)
Venkataramiah,
E.S. (J) Venkataramiah, E.S. (J) Dutt, M.M. (J)
CITATION:
1988 AIR 1676 1988 SCR Supl. (1) 593 1988 SCC Supl. 642 JT 1988 (3) 135 1988
SCALE (2)91
ACT:
Motor
Vehicles Act, 1939 Whether without a prior agreement between two or more.
Regional Transport Authorities of regions through which an inter-regional route
passes, it is open to anyone of the said Regional Transport Authority to grant
a permit to ply a stage carriage on the said inter-regional route, under
provisions of.
HEAD NOTE:
The
short point which arose for consideration in this case was whether without a
prior agreement between two or more Regional Transport Authorities of the
regions through which an inter-regional route passes, it was open to any one of
the said Regional Transport Authorities to grant a permit to ply a stage
carriage on the said inter-regional route under the provisions of the Motor
Vehicles Act, 1939 ('the Act').
The
North Bihar Regional Transport Authority invited applications for granting
stage carriage permits in respect of inter-regional routes connecting certain
places within its jurisdiction and certain other places within the jurisdiction
of the South Bihar Regional Transport Authority. The petitioner filed a writ
petition in the High Court, questioning the power of the North Bihar Regional
Transport Authority to grant permits above-said without a prior agreement
between it and the South Bihar Regional Transport Authority. The High Court
dismissed the writ petition. Aggrieved by the order of the High Court, the
petitioner moved this Court for relief by this petition for special leave.
Dismissing
the petition, the Court, ^
HELD:
Under section 45(1) of the Act, an application for a permit for a vehicle
proposed to be used in two or more regions within the same State, has to be
made to the Regional Transport Authority of the region in which the major
portion of the proposed route or area lies, and in case the portion of the proposed
route or area in each of the regions is approximately equal, to the Regional
Transport Authority of the region in which it is proposed to keep the vehicle.
[596F-G] 594 Under section 63 of the Act, in the absence of any rules to the
contrary under the Act, a permit granted by the Regional Transport Authority of
one region is not valid in any other region unless the permit has been
counter-signed by the Regional Transport Authority of the other region, while
counter-signing a permit, it is open to the Regional Transport Authority of the
other region to impose its own conditions which it might have imposed if it had
granted the permit. If there are any rules framed by the State Government under
the Act, they supersede the provisions of section 63. If there is an agreement
between the States concerned with regard to the grant and the counter signature
of the permits, then it is not necessary to comply with the procedure
prescribed by section 63, for counter-signature of permits. In this case, the
provisions of section 63 of the Act applied to all the inter-regional permits
in the State of Bihar. as no rule framed under the Act by
the State of Bihar regarding the procedure to be
followed in the case of counter-signature of permits was brought to the notice
of the Court. [598R-H;599A] Section 47(3) being inapplicable to the inter-State
or inter regional permits, it is open to the Regional Transport Authority
concerned to decide whether there is any necessity to issue the permit applied
for. The Act does not contain any procedure for two or more Regional Transport
Authorities entering into an agreement before an application for an
inter-regional permit is granted. The only provision which provides for an
agreement to be arrived at for purposes of counter-signature is the agreement
between two or more States referred to in the first proviso to sub-section (3)
of section 63 of the Act. An inter-State agreement of that nature can be
arrived at only after following the procedure prescribed under sub-section (3A)
of section 63 when it is open to the parties affected by the proposal to make
representations. In one sense, the procedure prescribed in sub-section (3A) of
section 63 takes the place of procedure to be followed by a Regional Transport
Authority while granting or counter-signing permits. In this case, since there
is no provision in the Act or in the Rules made by the State Government,
requiring the existence of such a prior agreement, it is difficult to hold that
in the absence of such a prior agreement between the Regional Transport
Authorities concerned, an application for the grant of an inter-regional permit
should not be taken up for consideration by a Regional Transport Authority
which had the jurisdiction to grant it under section 45 of the Act. If a permit
is issued by a Regional Transport Authority and it is not counter-signed by the
other Regional Transport Authority, the permit will not be effective in the
other region. What has been observed above is in accord with the deci- 595 sion
of a Constitution Bench of this Court in M/s. Bundelkhand Motor Transport Co., Nowgaon
v. Behari Lal Chaurasia and Anr., [1986] 1 SCR 485. [599B; 601F-G; 602E-G] The
North Bihar Regional Transport Authority had jurisdiction to consider the
applications for the grant of the inter-regional permits in question. After
they were granted, it was open to the South Bihar Regional Transport Authority
to consider whether they should be counter-signed or not after following the
prescribed procedure. The High Court was right in dismissing the Writ Petition.
[603C-D] Mohd. lbrahim etc. v. State Transport Appellate Tribunal, Madras, etc., [1971] 1 SCR 474; M/s. Bundelkhand
Motor Transport Company, Nowgaon v. Behari Lal Chaurasia and Another, [1966] 1
SCR 485, referred to.
CIVIL
APPELLATE JURISDICTION: Special Leave Petition (Civil) No. 6495 of 1988.
From
the Judgment and order dated 3.5.1988 of the Patna High Court in C.W.J.C. No.
2063/88.
K.K.
Gupta for the Petitioner.
The
Judgment of the Court was delivered by VENKATARAMIAH, J. The short point which
arises for consideration in this case is whether without a prior agreement
between two or more Regional Transport Authorities through which an
inter-regional route passes it is open to any one of the said Regional
Transport Authorities to grant a permit to ply a stage carriage on the said
inter-regional route under the provisions of the Motor Vehicles Act, 1939
(hereinafter referred to as 'the Act').
After
the opening of the 'Mahatama Gandhi Sethu' connecting South Bihar and North Bihar by road there was a great need for granting permits to
operate stage carriage services between places which are situated in North Bihar and the places in South Bihar. Therefore, in order to satisfy the
demand of the travelling public, the North Bihar Regional Transport Authority
issued an advertisement inviting applications for granting stage carriage
permits in respect of inter-regional routes connecting certain places situated
within its jurisdiction and certain other places which are situated within the
596 jurisdiction of South Bihar Regional Transport Authority. A number of
applications were received for the grant of the permits on the said
inter-regional routes. The North Bihar Regional Transport Authority issued
notices to all the persons concerned stating that the said applications would
be taken up for consideration at its meeting to be held on 7th April, 1988.. The petitioner who was operating
some stage carriages on some of the inter-regional routes filed a writ petition
in C.W.J.C. No. 2063 of 1988 on the file of the High Court of Patna questioning
the power of the North Bihar Regional Transport Authority to grant permits on
the inter-regional routes without a prior agreement between it and the South
Bihar Regional Transport Authority and obtained an order of stay of the said
proceedings from the High Court on 6th April, 1988 pending disposal of the Writ
Petition. The Writ Petition was heard by the High Court on 3.5.1988 and it was
dismissed. Aggrieved by the order of the High Court the Petitioner has filed
this petition.
When
the Writ Petition was filed before the High Court the petitioner did not implead
the applicants who had made applications for the grant of stage carriage
permits. The applicants, however, appeared before the High Court as interveners
and made their submissions. They contended that the Writ Petition was liable to
be dismissed since they (the applicants for permits) had not been impleaded as
parties and that the contention of the petitioner that a prior agreement
between the two Regional Transport Authorities was necessary before any one of
them could grant a permit was erroneous. The High Court has upheld both the
contentions.
Under
section 45(1) of the Act every application for a permit has to be made to the
Regional Transport Authority of the region in which it is proposed to use the
vehicle or vehicles but if it is proposed to use the vehicle or vehicles in two
or more regions Iying within the same State, the application has to be made to
the Regional Transport Authority of the region in which the major portion of
the proposed route or area lies, and in case the portion of the proposed route
or area in each of the regions is approximately equal, to the Regional
Transport Authority of the region in which it is proposed to keep the vehicle
or vehicles. The application for stage carriage permit should contain the
particulars required to be furnished under section 46 of the Act. Section 57 of
the Act provides for the procedure to be followed for granting permits. On
receipt of an application for a stage carriage permit the Regional Transport
Authority should make the application available for inspection at the office of
the Authority and is also 597 required to publish the application or the
substance thereof in the prescribed manner together with a notice of the date
before which representations in 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 would
be considered. The Regional Transport Authority should, while considering an
application for a stage carriage permit, have regard to the matters specified
in section 47 of the Act, namely, the interest of the public generally, the
adequacy of the passengers, the stage carriages operating or likely to operate
in the near future whether by road or other means between the places to be
served, the benefit to any particular locality or localities likely to be
afforded by the service etc. At the hearing it is open to any one of the
parties who has objected to the grant of the permit to raise all contentions
which are open to him under the Act including that there is no need for issuing
the permit applied for under sub-section (3) of section 47 of the Act a
Regional Transport Authority may limit the number of stage carriages generally
or of any specified type for which stage carriage permits may be granted in the
region or in any specified area or on any specified route within the region.
It has
been held by this Court in Mohd. Ibrahim etc. v. State Transport Appellate
Tribunal, Madras, etc., [1971] 1 S.C.R. 474 that sub-section (3) of section 47
is confined in its operation to the permits under which the stage carriages are
to be operated between two or more places within the same region and that
section 47(3) does not apply to applications for inter-State permits or to
inter-regional permits. We shall refer to this decision again at a later stage.
The relevant part of section 63 of the Act reads thus:
63.
Validation of permits for use outside region in which granted-(1) Except as may
be otherwise prescribed, a permit granted by the Regional Transport Authority
of any one region shall not be valid in any other region, unless the permit has
been counter-signed by the Regional Transport Authority of that other region,
and a permit granted in any one State shall not be valid in any other State
unless counter-signed by the State Transport Authority of that other State or
by the Regional Transport Authority concerned.
............................................
(2) A
Regional Transport Authority when counter- 598 signing the permit may attach to
the permit any condition which it might have imposed if it had granted the
permit, and may likewise vary any condition attached to the permit by the
Authority by which the permit was granted.
(3)
The provisions of the Chapter relating to the grant, revocation and suspension
of permits shall apply to the grant, revocation and suspension of
countersignatures of permits:
Provided
that it shall not be necessary to follow the procedure laid down in Section 57
for the grant of counter signatures of permits, where the permits granted in
any one State are required to be counter-signed by the State Trans port
Authority of another State or by the Regional Trans port Authority concerned as
a result of any agreement arrived at between the States after complying with
the requirements of sub-section (3- A), or for the grant of countersignatures
of permits in pursuance of any direction issued by the Commission under clause
(c) of sub-section (2) of section 63-A." A reading of the provisions of
section 63 of the Act, extracted above, shows that in the absence of any rules
to the contrary framed under the Act a permit granted by the Regional Transport
Authority of any one region is not valid in any other region unless the permit
has been counter- signed by the Regional Transport Authority of the other
region and a permit granted in any one State is not valid in any other State
unless it is countersigned by the State Transport Authority of the other State
or of the Regional Transport Authority concerned. When countersigning a permit
it is open to the Regional Transport Authority of the other region to impose
its own conditions which it might have imposed if it had granted the permit.
The provisions of Chapter IV relating to the grant, revocation or suspension of
permits apply to the grant, revocation or suspension of the countersignature of
the permits also. If there are any rules framed by the State Government under
the Act they shall supersede the provisions of section 63 of the Act and the
rules framed in that regard have to be followed by the Transport Authorities in
the case of inter-regional permits.
If There
is an agreement between the States concerned with regard to the grant and the
countersignature of the permits, then it is not necessary to comply with the
procedure prescribed by section 63 of the Act for countersignature of permits.
No rule framed under the Act by the State of Bihar with 599 regard to the
procedure to be followed in the case of countersignature of permits has been
brought to our notice.
We
shall, therefore, proceed on the basis that the provisions of section 63 of the
Act would be applicable to all inter-regional permits in the State of Bihar.
Since section 47(3) is held to be inapplicable to inter-State permits or inter
regional permits it is open to the Regional Transport Authority concerned to
decide the question whether there is any necessity to issue the permit applied
for at the time of consideration of the application for the grant of a permit
in the light of the representations made before the Regional Transport
Authority by the applicants, objectors and other concerned parties.
In Mohd.
Ibrahim etc. v. State Transport Appellate Tribunal, Madras etc., (supra)
dealing with the question whether there was any necessity for a prior
determination of the maximum number of stage carriages which can be permitted
to operate on an inter- State route, this Court observed at page 483 of the
Report thus:
"These
provisions establish that in the case of an inter-State permit an application
has to be made to the Regional Transport Authority of a State as mentioned in
section 45 of the Act and the permit is to be countersigned by the State
Transport Authority of the other State or by the Regional Transport Authority
concerned as mentioned in section 63 of the Act. Chapter IV consists of
sections 42 to 68. Section 57 deals with procedure for application and grant of
permits. That section will, therefore, apply for the grant of inter-State
permits. The effect of the proviso to section 63(3) is that in the case of
inter-State permits where an agreement has been arrived at between the State
the provisions of section 57 of the Act need not be followed for the grant of
countersignatures of permits. In other cases the procedure in section 57 of the
Act will apply in regard to grant, revocation and suspension of permits and to'
countersignatures of permits as well. Section 48 of the Act which relates to
power to grant of stage carriage permits will also apply to inter-State
permits.
The
provisions contained in sub-section (1) generally and sub-section (2) of
section 47 will apply to the Regional Transport Authority at the time of consideration
of the application for inter-State stage carriage permit. Section 47(3) of the
Act will not in our opinion apply to inter- State permits because that
provision relates to a Regional transport Authority limiting the number of
stage carriages for which stage carriage permits 600 may be granted in the
region or in any specified area or on any specified route within the
region." (underlining by us) The Court proceeded to observe:
"In
other words, section 47(3) of the Act is confined in its operation in or within
the region.
The
provisions of section 47(3) of the Act do not apply to inter-State permits
because an inter- State permit cannot be effective unless it is countersigned
by the Authority of the other State.
The
suggestion that in regard to inter-State permits a limit has to be fixed in
regard to number of stage carriages for inter-State routes will have the effect
of adding words to the provisions in section 47(3) of the Act. That will not be
the proper way of giving effect to section 47(3) of the Act. It will be
misreading section 47(3) of the Act if it will be applied to inter- State
permits. The combined effect of sections 63, 63-A, 63-B and 63-C is that the
inter-State Commission will deal with inter-State permits. The Central
Government under section 63-C of the Act is authorised to make rules in regard
to the procedure to be followed in considering an application for grant and countersignature
. Of permits. In the absence of specific rules, the best way of harmonising the
powers and functions is to allow these inter-State authorities to exercise
their power within their respective spheres in regard to grant and
countersignature of permits by agreement and accord. " (underlining by
us).
The
last sentence in the above extract of the judgment contains only a suggestion
made by the Court to the inter- State authorities concerned regarding the
manner in which the inter-State authorities should exercise their powers with
regard to the grant and countersignature of permits to avoid any possible difference
of opinion between them. It does not. however, require a Regional Transport
Authority in one State to enter into an agreement with the Regional Transport
Authority in the other State before granting an inter-state permit under the
Act. The observation referred to above is not a part of the ratio of the
decision. It may also be noted that a similar observation is not made by the
court while dealing with the case of an inter-regional permit within a State.
In fact, in the case of inter-State permits there is 601 already an express
provision enabling two or more States to enter into an inter-State agreement.
In the same decision at Pages 483-484 the Court made the following observations
in respect of inter-regional permits:
"In
the case of inter-regional permits an application under section 45 of the Act
has to be made to the Regional Transport Authority of the region in which the
major portion of the proposed route or area lies and in case the portion of the
proposed route or area in each of the regions is approximately equal, to the
Regional Transport Authority of the region in which it is proposed to keep the
vehicle or vehicles. Then under section 63 of the Act a permit granted by the
Regional Transport Authority of one region shall not be valid in any other
region unless the permit is countersigned by the Regional Transport Authority
of that other region. Section 63(3) of the Act makes the provisions of Chapter
IV applicable relating to the grant, revocation and suspension of permits to
the grant, revocation and suspension of countersignature of permits. The result
is that sections 47 to 68 which occur in Chapter IV are therefore attracted in
case of inter-regional permits. In view of the fact that section 47(3) of the
Act is restricted in its field in or within the region, the provisions in terms
do not become applicable to inter-regional permits. Section 68 of the Act
contemplates rules and conditions subject to which and the extent to which, a
permit shall be valid in another region within the State without
countersignature. We have not been shown any rules to that effect. The reasons
which do not make section 47(3) applicable to inter-State permit apply proprio vigore
to inter-regional permits. " It is significant that the Act does not
contain any procedure for two or more Regional Transport Authorities entering
into an agreement before an application for an inter-regional permit is
granted. The only provision which provides for an agreement to be arrived at
for purposes of countersignatures is the agreement between two or more States
referred to in the first proviso to sub-section (3) of section 63 of the Act.
An inter-State agreement of that nature can be arrived at only after following
the procedure prescribed under sub-section (3-A) of section 63 of the Act which
provides for the publication of the proposal to enter into an agreement between
the concerned States in the official Gazette and calling for representations in
connection therewith 602 from the affected parties and also the publication of
the time and place at which the proposal or any representation is received in
connection therewith will be considered by the Government concerned. At that
stage it is open to the parties who are affected by the proposal to make all
representations which they wish to make including the representation that there
is no necessity to introduce any more stage carriages on the inter-State routes
in question.
In one
sense the procedure prescribed in sub-section (3-A) of section 63 of the Act
takes the place of the procedure to be followed by a Regional Transport
Authority while granting or counter-signing permits. If any State Government is
of opinion that in the case of inter-regional permits within its territory
there should be a similar agreement between the Regional Transport Authorities
concerned before granting any inter-regional permit, it may frame appropriate
rules providing fur-publication of the proposal to enter into an agreement,
inviting objections to the proposal and hearing objections and representations
of the affected parties by the concerned Regional Transport Authorties before
entering into any such agreement. In the absence of any such rules being there,
it is open to the affected parties to raise the contention that there is no
necessity to issue any additional inter-regional permit before the Regional
Transport Authority to which application for the grant of a permit is made as
well as the Regional Transport Authority to which an application for
counter-signature of the permit is made.
In the
instant case since there is no provision in the Act or in the Rules made by the
State Government requiring the existence of such a prior agreement, it is
difficult to hold that in the absence of such a prior agreement between the
Regional Transport Authorities concerned an application for the grant of an
inter-regional permit should not be taken up for consideration by a Regional
Transport Authority which has the jurisdiction to grant it under section 45 of
the Act. If a permit is issued by a Regional Transport Authority and it is not
countersigned by the other Regional Transport Authority the permit will not be
effective in the other region. What we have observed above is in accord with
the decision of a Constitution Bench of this Court in M/s. Bundelkhand Motor
Transport Company, Nowgaon v. Behari Lal Chaurasia and Another, [1966] 1 S.C.R.
485. In that case at Page 492 the Constitution Bench has observed thus:
"Under
s. 63 a permit granted by the Regional Trans port Authority of one region is
not valid in any other region, unless the permit has been countersigned by the
Regional Transport Authority of that other region. The 603 clearest implication
of this provision is that even an inter-regional permit when granted is valid
for the region over which the Authority granting the permit has jurisdiction,
and when it is countersigned by the Regional Transport Authority of the other
region, the permit becomes valid for the entire route. We are unable to agree
with counsel for the respondent that the permit has no validity whatever until
it is countersigned by the Regional Transport Authority of the other region "
The North Bihar Regional Transport Authority has, therefore, jurisdiction to
consider the applications for the grant of the inter-regional permits in question.
After they are granted, it is open to the South Bihar Regional Transport
Authority to consider whether they should be countersigned or not after
following the prescribed procedure.
The
High Court was, therefore, right in dismissing the Writ Petition. This Special
Leave petition, therefore, fails and it is dismissed.
S.L.
Petition dismissed.
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