Thilagavathy
Vs. Regional Transport Authority [1994] INSC 615 (29 November 1994)
Sahai,
R.M. (J) Sahai, R.M. (J) Ahmadi A.M. (Cj) Hansaria B.L. (J)
CITATION:
1995 SCC (1) 456 JT 1994 (7) 643 1994 SCALE (5)32
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by R.M. SAHAI, J.- What arises for
consideration in these appeals directed against judgment and order of the High
Court of Madras is whether the provisions of the Tamil Nadu Motor Vehicles
(Special Provisions) Act, 1992 (Act No. 41 of 1992) (hereinafter called 'the
Act') prohibiting grant of any permit overlapping whole or part of the notified
route after 30-6-1990 is invalid and ultra vires being violative of Article 14
for creating two classes among small operators by arbitrarily providing cut-off
date and what is the ambit and scope of Section 10 and whether the decision of
this Court in Pandiyan Roadways Corpn. Ltd. v. M.A. Egappan1 requires
reconsideration.
2.In
the State of Tamil Nadu the State Government after addition of Chapter IV-A in
the Motor Vehicles Act, 1939 framed various schemes in 1976 nationalising
different routes. The effect of publication of the draft scheme was that the
private stage carriage operators were excluded from operating on any part of
it. But on various routes there were bifurcations; and the State Transport
Authorities issued new permits and renewed existing permits for these routes
which in course of its journey traversed part of the notified route, under the
impression that exclusion of private operators under the Scheme was partial
only. It was challenged by State Transport Undertaking (in brief "the
Undertaking") and its claim was upheld and such permits which overlapped
even a portion of the nationalised route were declared invalid. One of such
permit-holders who was an operator on a non notified route, while getting its
permit renewed, got permission to ply on a route part of which overlapped
notified route, approached this Court and in Pandiyan Roadways1 the decision of
the High Court was upheld and it was held that in view of the decision given by
the Constitution Bench in Adarsh Travels Bus Service v. State of U.P2 the
permits granted by the State to stage carriage operators which overlapped any
part of the notified route were invalid. The Court held that only those
operators were entitled to ply on part of notified routes who were permitted to
do so by the scheme itself. The effect of this decision was that large number
of permits of private operators, nearly 4000, were rendered invalid. To meet
this extraordinary situation, when 4000 vehicles run by small operators (each
having not less than 5 permits) were in danger of going off the road, which was
oppressive not only to the operators but it exposed the public to great
hardship and inconvenience and made it wellnigh impossible either for the State
or the Undertaking to replace the vehicles which involved an expenditure of
nearly Rs 300 crores, the State issued Government Order No. 2222 in 1987 to the
authorities to renew permits of such operators and requested the Undertaking
not to oppose it. It also introduced a Bill (L.A. Bill No. 42 of 1987), the
object of which was to "grant permits to small operators ... to ply their
stage carriage on any portion of the area or route covered by the draft schemes
or the approved schemes". The Bill was assented to by the President, as
well, 1 (1 987) 2 SCC 47 : AIR 1987 SC 958 : (1987) 2 SCR 391 2 (1985) 4 SCC
557 : AIR 1986 SC 319 459 but it was not published, consequently it never came
into force. In the meantime the Motor Vehicles Act, 1939 was repealed by
Parliament and Motor Vehicles Act, 1988 (Act No.
59 of
1988) came into force from 1-71989. It permitted pending schemes to be
published and approved within one year after expiry of which it was to lapse.
The schemes, therefore, had to be approved on or before 30-6-1990. In the State there were 800 schemes which had been
published and were pending approval. Out of these 251 schemes were approved
between 22-6-1990 and 30-6-1990. Chapter VI of the new Act contains similar provisions as
were in Chapter IV-A of the repealed Act. The effect of approval of the schemes
under the new Act and the interpretation placed by this Court in Pandiyan Roadwaysi
was that no private operator could ply on part of notified route and the Government
Order No. 2222 of 1987 had to be withdrawn. The Government, therefore, issued
Government Order No. 1794 in August 1990 withdrawing the earlier order issued
in July 1987 in wake of the judgment in Pandiyan Roadways,. It was followed by
an Ordinance issued on 8-10-1990 repealing L.A. Bill No. 42 of 1987. The small
operators, thus, once again were faced with the difficulty in which their
vehicles were likely to become stationary. They, therefore, filed different
batch of writ petitions seeking by one, mandamus from the Court to direct the
State to publish the L.A. Bill No. 42 of 1987 and by other, challenged validity
of the Government Order issued in 1990 withdrawing earlier Government Order of
1987. The petitions were dismissed on 9-10-1990. On 24-1-1991 Tamil Nadu Motor
Vehicles (Special Provisions) Repeal Act, 1991 was passed repealing L.A. Bill
No. 42 of 1987. The operators numbering approximately 4000 who had been granted
permits overlapping notified route after 1976 approached this Court through their
association known as Federation of Operators' Association by way of two Writ
Petitions Nos. 361 and 365 of 1991 under Article 32 of the Constitution of
India for different relief with same objective in which an interim order was
passed and doubt was expressed on Pandiyan Roadways'. The State Legislature, in
these circumstances, enacted the impugned Act which came into force on 31-7-1992.
3.Due
to the uncertainty prevailing in the State as a result of different orders
issued by the Government from time to time, the transport authorities appear to
have issued permits to private operators even after 1987. But when the Act came
into force in July 1992 with eleven sections it provided that Sections 1 to 5
and 8 to 1 1 were deemed to. have come into force on 4-6-1976 and ceased to be in force on 30-6-1990. The Act placed complete embargo on issue of fresh
permits after 30-6-1990. Therefore, its validity was
challenged by those operators who had been issued permits after 30-6-1990. The principal attack was founded on absence of any
Justification for classifying the operators in two classes one, those to whom
permits had been granted till 30-6-1990 and others, to whom permits were issued
after that date. It was claimed that the basic purpose of the enactment being
to protect the interests of small operators, the classification amongst them by
taking 30-6-1990 as cut-off date was arbitrary and against legislative 460
objective and purpose. The prohibition in the Act against grant of any new
permit was challenged as it was contrary to the policy pursued by State
Government from 1976 onwards and it was claimed that the very purpose of the
Act by which the Legislature intended to perpetuate its earlier policy of
permitting small operators to ply on overlapping notified routes would stand
frustrated. Validity of Section 7 abating the proceeding for grant of permit
was also assailed. The High Court did not find any merit in any of the
submissions. It was held that the cut-off date as 30-6- 1990 was rational as
the Motor Vehicles Act of 1939 having been repealed and the new Act having come
into force from 1- 7-1989 with a provision that the schemes pending on the date
when the Act came into force would be valid only for one year, namely, up to
30-6-1990 unless they were approved and published, the State Legislature,
keeping the provisions of the Central enactment in view, considered it
appropriate to fix the cut-off date from the date the time to get the schemes
approved, lapsed. The High Court held that even under the new Act Chapter VI
provides for the same scheme as was earlier provided by Chapter IV-A.
Therefore, when the Legislature enacted Act 41 of 1992 it, while protecting
those in whose favour permits were granted before the decision was given in Pandiyan
Roadways1, accepted the interpretation placed by this Court by prohibiting
grant of any new permit overlapping even part of notified route from 1990
onwards. Nor did the Court find any merit in the submission that by virtue of
Section 10 the permits granted even on or after 1-7-1990 and till the date when the Act was passed or thereafter
were valid.
Aggrieved
by the decision given by the High Court on various sets of petitions filed by
operators who had applied and were granted permits on or after 1-7-1990 both on intra and inter-State route, these appeals
have been filed. The writ petitions, as stated earlier, have been filed by
those operators who were granted permits between 1976 and 1990. In fact these
petitions have been rendered infructuous after enactment of Act No. 41 of 1992.
4.Validity
of the Act was assailed, but halfheartedly, by the learned counsel for the
appellants who are the stage carriage operators to whom permits had been
granted for plying either on intra or inter-State routes on or after 1-7-1990, obviously because invalidity of the Act does not
advance their cause. Even otherwise, from the Statement of Objects and Reasons
and the provisions in the Act it is clear that the Legislature intended, in
public interest, to remove the sudden hardship to common public due to decision
rendered by this Court in Pandiyan Roadways1. But State Legislature having
accepted the interpretation placed by this Court in Pandiyan Roadways1, except
for those to whom permits were granted earlier, the appellants cannot claim to
be treated similarly and placed in that class of operators who were granted
permits before 1-7-1990. In our opinion the State Legislature, in keeping with
the decision given by this Court that such a scheme as was in dispute was for
complete exclusion of private operators, rightly provided that no permit could
have been granted after the Scheme was granted approval under the new Act. That
explains the reason for cut-off date as the schemes 461 were approved under the
new Act in June 1990 only.
Therefore,
on interpretation placed by this Court, the authorities could not have granted
any permit which overlapped any part of notified route. The cut-off date,
therefore, was not violative of Article 14.
5.Prior
to adverting to various provisions of the Act and whether Section 10 could be
so interpreted as empowering the transport authorities to issue fresh permits
even after 30-6-1990 and whether such permits could be held to be valid under
Section 10 it appears appropriate to deal with the submission advanced on
behalf of the appellants which in effect was that Pandiyan Roadways1 required
reconsideration.
It was
urged that the principle laid down by the Constitution Bench in Adarsh Travels2
was not applicable to the schemes framed in the State of Tamil Nadu and, therefore, the decision given
in Pandiyan Roadways1 based on Adarsh 7ravels2 was not correct. The learned
counsel urged that in Adarsh Travels2 a private operator was excluded wholly
from operating on any part of the notified route as there was no protection
even to existing operators, whereas in Pandiyan Roadways' the Court was
concerned with a scheme which excluded a private operator from the notified
route except to the extent it was permitted by the scheme itself.
The
learned counsel urged that the schemes framed in the State of Tamil Nadu excluded private stage carriage
operators from operating, on "end-to-end" basis only on any nationalised
route. It was submitted that the scheme itself having permitted plying on
notified route and even picking and setting down passenger from notified route,
the authorities did not commit any error in granting permits and such grant was
not contrary to the scheme and if such interpretation is given as was done in Pandiyan
Roadwaysl then it would result in not only inconvenience to the public but
would be contrary to the provisions of the Motor Vehicles Act itself.
6.To
appreciate the controversy, it appears appropriate to refer to one of the
routes which was known as "Udumalpet Erode Route", which came up for consideration in Pandiyan
Roadways1 . This Scheme was notified in 1973. It was published under
sub-section (2) of Section 68-D of the Motor Vehicles Act, 1939. Schedule I to
the Scheme reads as under:
1 .
Area or route in relation Udumalpet to Erode with to which the scheme is
prepared. shuttle trips between Erode and Tiruppur.
2.
Whether operation by the State To the exclusion of other Transport Undertaking
shall be to persons as described in the exclusion of other persons or item 3
below otherwise.
3.If
the operation shall be to the exclusion of the other persons:
462 (i)Whether
such exclusion shall To the complete exclusion complete or partial of other
person inrespect of permits covering the entire route referred to in Item 1
above.(emphasis ours) (ii) Whether it is proposed to Yes.
allow
other persons to operate buses as on sector of the routes covered by the
scheme.
(iii)
Whether it is proposed to allow Yes.
other
persons to pick up or drop passengers between any two places on the route
covered by the scheme.
Clause
(5) of Schedule 11 gives the number of stage carriages. Clauses (a) and (b) of
it are extracted below:
(a)Number
of stage carriages now As detailed in Annexure I.
by
other persons.
(b)Number
of stage carriages to be permitted -do- to be operated by other persons and the
duration.
Annexure
I contains particulars of those private operators who were operating on the
route on the date the Scheme was notified. The Scheme was prepared under
Section 68-C of the old Act which permitted a State Transport Undertaking to
prepare a scheme for running and operating services in an area or route to the
exclusion, complete or partial, of other persons. Sub-clause (i) of clause (3)
of the Scheme clearly provided that the Scheme was to complete exclusion of
other persons from entire route in question. Therefore, no operator could apply
for a permit on notified route nor the transport authority could grant it. The
exclusion was thus absolute and complete. Clauses (ii) and (iii) were added in
the Scheme to enable existing operators to ply their vehicles. Protection to
such operator was limited to the extent that their permits were renewable. A
combined reading of sub-clauses (i), (ii) and (iii) of clause (3) of the Scheme
with Annexures I and II of the Schedule indicates that the private operators of
specific category were permitted to operate on sectors of the routes and it
were they alone who were permitted to pick up and set down passengers between
any two places on the route covered by the Scheme. It did not contemplate grant
of any new permit to any other operator overlapping the notified route. Even
though it was not a Scheme like the one which came up for consideration before
this Court in Adarsh Travels2 yet the exclusion was complete so far operators
other than those who were mentioned in sub-clauses (ii) and (iii) were
concerned.
The
Scheme having been framed under Section 68-C, the validity of which was not challenged,
it could not have been construed as a scheme 463 precluding an operator from
"end-to-end" route only. The misconception arising out of an
erroneous understanding of the Scheme due to sub-clauses (ii) and (iii) was
rightly corrected by this Court. We respectfully agree with the enunciation of
law in Pandiyan Roadways1.
7.
Reverting to the provision of the Act, it is slightly unusual legislation as it
came into force in July 1992 yet, except Sections 6 and 7, the remaining
provisions of the Act are deemed to have come into force in 1976 and ceased to
operate after 30-6-1990. The Act thus seeks to achieve dual objective one,
legislatively protecting those operators who were granted permits after 1976
under misconception by the transport authorities that the Scheme excluded other
operators from "end-to-end" route only by fictionally enabling the
transport authority to have issued permits notwithstanding any provision in the
Scheme framed by the Undertaking. Two, it prohibited grant of any new permit
after 30-6-1990 which overlapped whole or part of notified route, that is, the
Legislature while accepting the interpretation placed by this Court on
construction of Scheme prepared under Section 68-C legislatively removed the
hurdle in grant of permits on notified route ill past, validated the grant so
made but prohibited any grant in future. Sections 3, 4, 5 and IO are directed
towards regularising and validating the permits granted between 1976 and
30-6-1990, whereas Sections 6 and 7 achieve the latter objective. Section 3 is
the main section. Its sub-sections (1) and (2) empower a Regional Transport
Authority to grant, renew or vary conditions of permit of a small operator,
which, according to the explanation to the section, means any stage carriage
operator holding not more than five stage carriage permits, to ply on a
notified route or part of it notwithstanding anything contained in any draft
scheme.
Sub-section
(3) of Section 3 provides that during the period the permit referred to under
sub-section (1) or (2) was in force the draft scheme shall stand modified to
that extent.
Sub-section
(4) makes the provisions of Chapter V of the Act applicable to grant, renewal
or variation of permit.
Section
5 provides that Sections 3, 4 and 6 shall have effect notwithstanding anything
inconsistent therewith contained in Chapters V and VI including Section 98 of
the Motor Vehicles Act. Section 10 validates the grant of permit
retrospectively. Section 3 thus created power in the transport authority to
grant, renew, vary or alter permit from 1976 and Section 10 validated such
grant notwithstanding anything to the contrary in the new Act.
There
was no challenge by the State Transport Undertaking to these provisions by
which the grant of permits in favour of the operators between 1976 and 1990 has
been permitted and validated.
8.
Section 6 like Section 3 has four sub-sections. Sub- sections (1) to (3) deal
with renewal of permit or modification of condition therein in accordance with
same procedure as applied to renewal or variation under Chapter V of the Act.
But sub-section (4) debars the authority from issuing any fresh permit. It
reads as under:
"Notwithstanding
anything contained in this Act no new permit shall be granted under this Act to
any person on any route covered by an approved scheme." 464 This section
unlike other sections comes in operation from 30-6-1990. Thus from 30-6-1990 the Regional Transport Authority is
not empowered to grant any new permit to any operator overlapping whole or part
of notified route. But so far permits, grant of which has been validated by 30-6-1990, would be renewable under this section even after
30-6- 1990. The effect of Section 6, therefore, is that those operators who
were granted permits between 1976 to 30-6-1990 would be entitled to seek
renewal but the authorities would not be entitled to grant fresh permit after
that date. Validity of even sub-sections (1) and (2) was not challenged by the
Undertaking.
And
sub-section (4) cannot be challenged by the appellants as it is in keeping with
Chapter VI of the new Act. It is further reinforced by Section 7 which abates
all proceedings pending for grant of permit on a notified route before any
authority or court in appeal.
9. But
what has created confusion is Section 10 which reads as under:
"10.
Notwithstanding anything contained in Chapters V or VI including Section 98 of
the Motor Vehicles Act, 1988 all orders passed granting permits or renewal or
transfer of such permits or any variation, modification, extension or
curtailment of the route or routes specified in a stage carriage permit during
the period commencing on the 4th day of June, 1976 and ending with the date of
the publication of this Act in the Tamil Nadu Government Gazette, shall for all
purposes be deemed to be and to have always been taken or passed in accordance
with the provisions of this Act as if this Act had been in force at all
material times." (emphasis supplied) The section is not happily worded.
Literally read it may clash with subsection (4) of Section 6 of the Act.
Reliance was placed on the expression " and ending with the date of the
publication of this Act in the Tamil Nadu Government Gazette". It was
urged that this clearly indicated that any permit granted between 4-6-1976 and
the date of publication of the Act, namely, 31-7-1992, would be valid.
According to the learned counsel the High Court committed an error of law in
dismissing the writ petitions filed by the appellants on basis that their
permits having been granted or countersigned after 30-6-1990 were invalid and
contrary to the Scheme of the Act. A superficial reading of Section 10 does
give an impression that the operation of the Act for purposes of grant of
permit stood extended not only up to 30-6-1990 but up to 31-7-1992. But that
would be in the teeth of sub-section (4) of Section 6 and Section 3 itself.
The
purport of the Act was to protect those operators who had been issued permits
between 1976 and 30-6-1990 and not to depart from the interpretation placed by
this Court. The Legislature while protecting the past mistakes of the
Government has taken care not to repeat it in future. This is not
discrimination but accepting the decision given by this Court. Further it is a
validating provision. In absence of it the action of the authorities granting
permits which was legislatively made permissible by Sections 3 and 4 would not
have been saved. It too ceased to operate from 30-6-1990 in view of sub-section
(3) of Section 1 which reads as under:
465
"The provisions of the Act (except Sections 6 and 7) be deemed to have
come into force on the 4th June, 1976 and remain in force up to and inclusive
of the 30th June, 1990 and Section 6 shall be deemed to have come into force on
the 1st July, 1990. " A provision which was legislatively dead on
30-6-1990 could not be deemed to be alive for purpose of grant of permit
because of the expression "the date of publication of this Act in the
Tamil Nadu Government Gazette" appearing in the provision. The High Court
thus did not commit any error in dismissing the writ petition of those
operators whose claim for new permit after 30-6-1990 was rejected by the
authorities.
10.
One Loganathan along with nine others had applied for permit which overlapped
notified route. He died on 7-10- 1987. His wife Samiyatha1 was brought on
record. On 11-1- 1988 permit was granted in her favour. Against this order
various persons filed appeal and on 28-1-1992 a consent memo was filed before
the appellate authority who granted the permit in accordance with the consent
memo not only in favour of Samiyathal but others as well. Validity of this
order was challenged by the State Undertaking in the High Court. It was held
that since the effect of accepting the consent memo was to permit grant of
fresh permits in favour of persons other than Samiyathal in 1992 it was violative
of the provisions of the Act. Consequently the petition filed by the
Undertaking was allowed and the permit granted in favour of others on basis of
consent memo was set aside.
But
the order granting permit to Samiyathal being of 1988, the writ filed by the
Undertaking against this order was dismissed. In S. V Sivaswami Servai v. Hafez
Motor Transport (Firm)3 it has been held that addition of permit on agreement
was not permissible. Therefore, the High Court did not commit any error of law
in allowing the writ petition of the Undertaking and quashing the permits
granted on consent memo. Since we have agreed with the decision of the High
Court that no permit could have been granted after 30-6-1990, the order passed
by the High Court allowing the writ petition of the Undertaking against persons
other than Samiyathal does not suffer from any error of law.
11.
For these reasons all these appeals fail and are dismissed. The writ petitions
on the other hand have become infructuous after coming into force of the new
Act. They are dismissed as such.
12.
Parties shall bear their own costs.
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