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PETITIONER: S.SHAMSHUDDIN & ORS. ETC

       Vs.

RESPONDENT: STATE OF KARNATAKA & ORS.

DATE OF JUDGMENT18/04/1984

BENCH: DESAI, D.A. BENCH: DESAI, D.A. MISRA RANGNATH

CITATION:  1984 AIR 1244            1984 SCR  (3) 522  1984 SCC  (3) 583        1984 SCALE  (1)709

ACT:      Motor Vehicles  Act, 1939  as amended by Motor Vehicles (Amendment) Act  56 of 1969 s.63(7)-Interpretation of. Quota of 50  all India tourist permits fixed by Central Government by Notification  No. S.O.22  dated December 19, 1977-Whether valid. Power  to fix  quota and  power to  grant  all  India permits-Whether separable. The expression in respect of such number of tourist vehicles as the Central Government may, in respect  of  that  State,  specify  in  this  behalf-Whether severable.

HEADNOTE:      In order  to promote  tourism, the  Motor Vehicles Act, 1939 was amended by the Motor Vehicles (Amendment) Act 56 of 1969. Sub-s.(7)  which  was  introduced  in  s.  63  by  the Amending  Act   provided   that   notwithstanding   anything contained in Sub-s. (1) but subject to any rules that may be made under  this Act, any State Transport Authority may, for the purpose  of promoting  tourism, grant  permits valid for the whole or any part of India, in respect of such number of tourist Vehicles  as the  Central Government may, in respect of that  State, specify  in this behalf. In exercise of this power the Central Government by its notification No. S. O 22 dated December 19, 1977 fixed a quota of 50 as the all India tourist permits  for each  State. The petitioners challenged this quota as discriminatory and violative of Art. 14 of the Constitution. Dismissing the writ petitions, ^      HELD: It  appears that  s. 63  (7) was introduced after ascertaining the  needs of  developing  tourist  trade.  The Central Government fixed quota of 50 permits for each State. It may  be that  a smaller  State like  Himachal Pradesh  or Jammu and  Kashmir may  have  larger  number  of  places  of tourist interest. Equally area-wise the biggest State Madhya Pradesh may  have few  spots of tourist interest. Therefore, unless all  the relevant fact are placed on record which may point to  the invidiousness  of fixing  a  flat  quota,  the petitioners contention  that  the  quota  is  arbitrary  and violative of  Art. 14  of the  Constitution  has  no  force. [528D-F, 525E] 523

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    The Parliament enacted Sub-s.(7) of s. 63 conferring an enabling power  or State  Transport  Authority  to  grant  a permit valid  for the  whole of  India  which  but  for  the provision contained  in Sub-s.  (7) of  s.  63  it  was  not entitled to  grant and  that this power to grant was subject to the  condition that  the Central  Government will specify the quota.  Therefore, the  quota is  not severable from the power to  grant the  permit.  Assuming  that  the  quota  is severable from  the enabling provision, no material has been placed on  record to  point out the needs of each State, the places of  tourist interest,  the influx  of  tourists,  the facility for their boarding and lodging and the condition of roads in  respect of each State. In the absence of this fact situation, the  petitioners’ submission that the expression, in respect of such number of tourist vehicles as the Central Government may,  in respect  of that  State specify  in this behalf’ is severable and therefore the enabling part of sub- s. (7)  will permit  State Transport Authority in each State to grant  all India  tourist permit keeping in view the need of the  tourists and  the needs  of  the  State,  cannot  be examined on merits. [527H, 528A-B, 527G]      It is  recommended that  in view  of the vast expanding tourist traffic  the Central  Government must  undertake  an exercise within  a reasonable  time and at regular intervals to reevaluate  the quota  of all  India tourist  permits  to keep pace  with developing  notion of  attracting  tourists. [529C-D]

JUDGMENT:      ORIGINAL JURISDICTION  : Writ  Petitions Nos.  13033-38 13650-52,  13197,   13355-58,  13389,   13393-97,  13003-08, 13488,13654-67, 13850-58, 13790 to 13801, 13836-49, of 1983, 8-22.24-30, 34-35, 126-130 and 223-26 of 1984 (Under article 32 of the Constitution of India)      Advocates for the appearing parties:      S.S. Javali,  Mr.  B.P.  Singh,  Ranjit  Kumar,  Shanti Bhushan, K.R. Nagaraja, K.S, Hedge, S.K. Prasad, K.N. Bhatt, Ms.  Madhu   Mulchandani,  R.B.   Datar,  N.K.Sharma,   P.N. Ramalingam, R.  Ramachandran, V.K. Verma, K.G. Bhagat, Addl. Sol. General,  M.N. Shroff,  P.K. Pillai,  Mrs. H.  Wahi, M. Veeroppa, Swaraj  Kaushal, Vineet  Kumar, S.  Chatterjee and J.R. Das.      The Judgment of the Court was delivered by      DESAI,  J.   The  intrepid  albeit  affluent  transport operators again succeeded in their none-too-legal designs to operate vehicles  not by  obtaining statutory permits but to put it mildly by abuse of the court’s process. 524      By a  judgment rendered  by this Court in S. Kannan and Ors. v.  Secretary, Karnataka State Road Transport Authority etc.(’) on  August 29, 1983, this Court held that grant of a temporary all  India tourist  permit is  foreign to the very concept of  all-India tourist  permit as  envisaged by sub-s (7)  of   Sec.63  of   the  Motor  Vehicles  Act,  1939  and accordingly an unusually large number of temporary all-India tourist permits  obtained pursuant  to  the  interim  relief granted by  this Court  were set  at  naught.  Some  of  the present petitioners  were directly  parties to the petitions disposed of  by that  judgment. Indefatigueable as they are, they  again   approached  this  Court  by  a  camouflage  of challenging the  validity   of quota  of fifty  such permits fixed by  the Central  Government in  respect  of  all-India tourist permit  for each  State as per Notification No. S.O.

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22 dated  December 19,  1977 as  also failure to fill-in the vacancies by  the State  Transport  Authority  in  Karnataka State to  the extent  of the sanctioned quota. The challenge was a  clever camouflage,  the sole, underlying motive being to obtain  some interim  relief  by  which  again  temporary permits in  compliance with  the interim  relief granted  by this Court may be obtained and the impermissible trade being carried on  without a break. To unravel this plot engineered by the petitioners, it may be mentioned that even though the Court by  the judgment  in the  case of  S.  Kannan  &  Ors. rendered on August 29, 1983 set at naught all temporary all- India tourist  permits obtained  as  a  consequence  of  the interim relief granted by this Court, at the special request of some  of the  petitioners, the  Court keeping in view the investment made  by the  petitioners, in  providing  tourist vehicles continued  the interim  relief which kept operative the temporary  permits till  December 31,  1983. The present petitions were  filed somewhere  in November,  1983. By  the order dated  November 23,  1983 notice directed to be issued both on the main petition as well as on the stay application was made  returnable on  December 6,  1983. The  petitioners were in  no hurry  to snatch  the interim relief because the order made  earlier had  infused life  into their  so-called temporary permits  and kept them operative upto December 31, 1983. On  December 16, 1983 in the renewed attempt the Court granted interim relief to the effect that those operators of vehicles who  had held  all-India tourist  permit on October 23, 1983  and  who  were  plying  their  vehicles  shall  be permitted to  ply the  vehicles until  April 30, 1984. It is necessary to  point out  that the  petitioners who  obtained this interim relief were plying their vehicles on October 525 23, 1983 under an earlier interim relief which had exhausted itself on  August 29,  1983 and  this very  relevant  aspect which would  be determinative  of the issues involved in the matter appeared  not to have been brought even to the notice of the Court which granted interim relief.      The respondents  appeared and  pointed  out  the  facts herein above  delineated with  the result that the petitions were set down for hearing on March 23, 1984.      Mr. Shanti Bhushan who led on behalf of the petitioners raised three  contentions. It  was urged  that even though a quota of  50 tourist  permits has  been  sanctioned  by  the Central Government  for each  State, the  State of Karnataka has not  utilised the  quota to  the maximum  and there  are either 25  or 14 vacancies which have been kept unfilled for a long  time  and  therefore,  a  mandamus  must  be  issued directing  the   State  Transport  Authority,  Karnataka  to perform its  statutory duty  by considering the applications received for  all-India tourist  permits and  dispose of the same within a reasonable time. It was next contended that if the object  underlying the  enactment of  Sec.63(7)  was  to promote tourism  and facilitate movement of tourists, a flat quota of  50 permits  for each State completely ignoring the needs of  the  State,  capacity  to  cater  to  the  tourist traffic, significant  number of  places of tourist interest, the  local   population  and   other  relevant  factors,  is violative of  Art. 14  of the  Constitution and  the Central Government must  be directed  to refix  the quota.  The last submission specifically  referring to  the  State  Transport Authority of Karnataka was that it has failed to perform its statutory duty  by not  granting all-India tourist permit in existing 14  vacancies  according  to  the  State  Transport Authority and 25 vacancies according to the petitioners, and that by  a mandamus  the State Transport Authority should be

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directed to  examine all  the applications  received for the same and  to grant permits and thereby perform its statutory duty.      The mere  enumeration of  the contentions raised by Mr. Shanti  Bhushan   shows  that   the  first   and  the  third contentions  are  almost  identical  except  that  the  fact situation with regard to the existing number of vacancies in the  sanctioned   quota  of  all-India  tourist  permit  for Karnataka State  is  in  controversy.  It  would  have  been necessary to  probe in  depth the  statutory duty  or  State Transport Authority  on whom power is conferred by Sec.63(7) to grant permit valid for the whole or any part of India for the 526 purpose  of  promoting  tourism.  But  we  are  spared  this exercise because  Mr. Swaraj  Kaushal, learned  counsel  who appeared for the State of Karnataka undertook that the State Transport  Authority   would  dispose  of  all  applications pending before  it for a permit as contemplated by Sec.63(7) by April  30, 1984.  He also stated that the State Transport Authority of Karnataka State will as far as possible fill in all the  vacancies if  sufficient number of applications are pending before  it and  there are  eligible applicants among them. We  leave it  to  the  State  Transport  Authority  to determine how  many vacancies  at present exist and- fill in the same by considering the applications pending with it for the type of permit as contemplated by Sec.63(7).      Therefore, there  remains one contention to be examined by us.  It was  urged that  Regional Transport Authority can grant a stage carriage or a contract carriage permit, as the case may  be, valid  for operation  in the  region and  when countersigned by  the State  Transport Authority  valid  for contiguous regions  in the  same State. A necessity was felt that tourist  vehicles having an inter State and intra-state operational area  throughout the country, may be licensed by all-India tourist  permits so  that facility  of  easy  road transport is  available to  both the  domestic  and  foreign tourists. To  achieve this  end and with a view to promoting tourism, sub-s.(7)  was  introduced  in  Sec.  63  of  Motor Vehicles Act,  1939 by  Motor Vehicles (Amendment) Act 56 of 1969 which reads as under:           "63(7): Notwithstanding  anything contained in sub      section (1)  but subject  to any rules that may be made      under this  Act, any State Transport Authority may, for      the purpose  of promoting  tourism, grant permits valid      for the  whole or any part of India, in respect of such      number of  tourist vehicles  as the  Central Government      may, in  respect of that State, specify in this behalf,      and the  provisions of Sections 49, 50, 51, 57, 58, 59,      59-A, 60,  61 and  64 shall,  as far as may be apply in      relation to such permits:           Provided  that   preference  shall   be  given  to      applications for permits from-           (i)  the India Tourism Development Corporation;          (ii)  a State Tourism Development Corporation;         (iii)  a State Tourist Department; 527           (iv) such operators of tourist cars or such travel                agents as  may be  approved in this behalf by                the  Ministry   of  the   Central  Government                dealing in tourism."      The power  to grant  permit valid  for the whole or any part of India was conferred on the State Transport Authority of each  State. To guard against the big fish not swallowing the smaller one, Parliament took care to statutorily provide

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that the  Central Government will have power to fix quota of such  permits   that  can  be  granted  by  State  Transport Authority in  each State.  In exercise  of this  power,  the Central Government  has fixed a quota of 50, euphemistically called, all-India  tourist permit, but statutorily described as permit  valid for  whole of  India for  each State by the Notification No.S.O.22 dated December 19, 1977.      Mr. Shanti  Bhushan pointed  out  that  the  large  and sprawling   States   like   Maharashtra,   Madhya   Pradesh, Karnataka, Tamil Nadu and Uttar Pradesh each have a quota of 50 permits and also Assam, Nagaland, Manipur, etc. which are geographically and populationwise small States have the same quota. It was urged that this equal treatment of unequals is clearly arbitrary  and violative of Art.14. It was submitted that quota  can be fixed with a view to promoting tourism by keeping in  view the population, places of tourist interest, facility for tourist halt, conditions of roads etc. and that having not  been done  the fixation  of  flat  quota  of  50 permits for each State must be struck down as discriminatory and arbitrary.      While hearing  this argument,  a question  was posed to Mr. Shanti  Bhushan that if the quota of 50 permits for each State is struck down, not a single State Transport Authority in any  State will  be entitled  to grant  a single  tourist permit because fixation of quota is an integral part of Sec. 63(7). Mr.  Shanti Bhushan  urged  that  the  expression  in respect of  such number  of tourist  vehicles as the Central Government may,  in respect  of that  State, specify in this behalf is severable and therefore, the enabling part of Sub- s.(7) will permit State Transport Authority in each State to grant the all-India tourist permit keeping in view the needs of the  tourists and  the needs  of the  State. We  are  not persuaded to  accept this submission. The Parliament enacted sub-s(7) conferring  an enabling  power on  State  Transport Authority 528 to grant a permit valid for the whole of India which but for the provision  contained in  sub-s.(7) of  Sec.63 it was not entitled to  grant and  that this power to grant was subject to the  condition that  the Central  Government will specify the quota.  Therefore, the  quota is  not severable from the power to grant the permit.      Assuming that  the quota is severable from the enabling provision, no  material has  been placed  on record to point out the needs of each State, the places of tourist, interest the influx  of tourists, the facility for their boarding and lodging and  the condition  of "roads  in  respect  of  each State. In the absence of this fact situation, the contention cannot be examined on merits.      It may  be pointed out that Sec. 63-A envisages setting up of an Inter-State Transport Commission for the purpose of developing, coordinating  and regulating  the  operation  of transport vehicles in respect of any area or route common to two or  more States  (hereinafter referred to as inter-State region) and  performing  such  other  functions  as  may  be prescribed under  sec. 63-C.  It was  not made clear whether the Inter-State  Transport Commission has been set up but it appears that  Sec. 63(7)  was introduced  after ascertaining the  needs   of  developing   tourist  trade.   The  Central Government fixed  quota of 50 permits for each State. It may be that  a smaller  State like Himachal Pradesh or Jammu and Kashmir  may   have  larger  number  of  places  of  tourist interest. Equally area-wise the biggest State Madhya Pradesh may have  few spots  of tourist  interest. Therefore, unless all the relevant facts are placed on record, which may point

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to the  invidiousness of fixing a flat quota, the contention of Mr.  Shanti Bhushan  does not commend to us and it may be rejected.      Mr. Javali,  learned counsel  in some  of the petitions urged that  notification No.S.O.22  dated December  19, 1977 specifying the number of tourist vehicle of all States at 50 each suffers  from the  vice of  non-application of mind. It was said  that the notification does not disclose as to what relevant factors  were taken  into consideration  for fixing the quota. The contention thus raised is the same contention raised by Mr. Shanti Bhushan under a different garb and must be rejected for the same reasons.      It was  urged that  the Central  Government  should  be asked to  refix the  quota keeping in view the change in the steep rise in 529 the influx  of tourists  from 1977 to 1984. It was submitted that with the rapid increase in tourist traffic, cheaper and speedy  air  transport  and  a  new  culture  of  augmenting knowledge by  visit to  places of  historical  interest  has increased  manifold  tourist  traffic.  It  was  urged  that tourism  is  a  well-recognised  mode  for  earning  foreign exchange badly  needed for economic development. It was then urged that better facilities would attract more tourists. It was urged that a period of 7 years provides a water-shed re- evaluating the  demands of time and needs for augmenting the quota  fixed   way-back  in   December,   1977.   There   is considerable force in this submission. We are of the opinion that in  view of  the fast  expanding tourist  traffic,  the Central Government  must undertake  an exercise  at  regular intervals to  re-evaluate the  quota  of  all-India  tourist permits to  keep pace  with developing  notion of attracting tourists. We  therefore, recommend to the Central Government to undertake this exercise within a reasonable time:      As we  find no  merit in  any of  the  contention,  all petitions fail and are dismissed with costs. H.S.K.                                  Petitions dismissed. 530