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PETITIONER: ACHYUT SHIVRAM GOKHALE

       Vs.

RESPONDENT: REGIONAL TRANSPORT OFFICER & ORS.

DATE OF JUDGMENT16/08/1988

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) DUTT, M.M. (J)

CITATION:  1988 AIR 2047            1988 SCR  Supl. (2) 448  1988 SCC  Supl.  696     JT 1988 (3)   375  1988 SCALE  (2)342

ACT:     Motor  Vehicles Act, 1939-Section 63(6)-Special  permit- Right  of  person  to  obtain-Difference  between   contract carriage permit and special permit.

HEADNOTE:     On  November  29,  1973 the  Government  of  Maharashtra Notified  a scheme approved under section 68-D of the  Motor Vehicles  Act, 1939 authorising the Maharashtra  State  Road Transport Corporation to operate contract carriage  services in  the  entire  area of the  State of  Maharashtra  to  the complete exclusion of all other persons except those falling under the seven categories mentioned therein. The  appellant who  did  not  belong to any one  of  the  seven  categories applied  to the Regional Transport Authority for  a  special permit under section 63(6) of the Act on the route Bombay to Shirdi for five days. This application was rejected  because the appellant had not produced a ‘No objection  Certificate’ from  the State Road Transport Corporation. It was  held  by the  Regional Transport Authority that in the absence  of  a ‘No Objection Certificate’ no special permit could be issued under section 63(6) of the Act.     The  Maharashtra  State  Transport  Appellate   Tribunal allowed the appellant’s appeal holding that a special permit issued  under  section 63(6) of the Act was not  a  contract carriage permit issued under the Act and that the scheme did not  have the effect of preventing any person from  applying for a special permit under section 63(6) to operate a public service  vehicle  on  any of the routes in  the  State.  The Corporation filed a writ petition in the High Court  against the  Tribunal’s  order.  The High  Court  allowed  the  Writ Petition.     Disposing  of the appeal and setting aside the  judgment of the High Court, it was,     HELD:  (1)  A  contract carriage permit  and  a  special permit  are not one and the same, though the special  permit has  some  of the features of a  contract  carriage  permit. [454E-Fl     (2) A Special permit is ordinarily taken to meet a  need                                                   PG NO 448                                                   PG NO 449

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that exists for a few days like carrying a marriage party or persons going to a pilgrimage, etc. [454F]     (3)  The  distinguishing features of the  two  types  of permits  are: (1) A permit for which an application is  made under  section  49  of the Act and which  is  granted  under section 51 of the Act is called a contract carriage  permit. A  permit issued under section 63(6) of the Act is called  a special permit; (2) while a contract carriage permit  issued by  a Regional Transport Authority of any one region is  not valid  in  any  other  region unless  the  permit  has  been countersigned  by  the Regional Transport Authority  of  the other  region as provided under section 63(1) of the Act,  a special  permit issued by one Regional  Transport  Authority under section 63(6) of the Act is valid in any other  region or  State  without  the  countersignature  of  the  Regional Transport  Authority of the other region or the other  State as  the  case may be; (3) While the duration of  a  contract carriage permit is as prescribed under section 58(1) of  the Act,  a  Special permit can be issued only  for  a  specific period  which may be for a few days only in accordance  with the  rules prescribed for that purpose; and (4)  A  contract carriage permit is renewable under section 58(2) of the Act, but  there  is  no  corresponding  provision  providing  for renewal of a special permit. [454B-E]     (4) The provision in the scheme which excludes operation of  contract carriage services by persons other  than  those who  are permitted to do so under the scheme refers to  only those persons who wish to operate contract carriage services under permits issued under section 51 of the Act. The scheme does  not in any way prevent the issuing of special  permits under  section 63(6) of the Act by the   Regional  Transport Authorities  in  accordance  with law as it  does  any  that holders of special permits under section 63(6) would also be excluded from running the public service vehicles. [457B-C]     (5)  The  scheme  does  not  provide  that  the   clause regarding exclusion of other persons from operating contract carriages would cease to operate if the Corporation issued a ‘No Objection Certificate’. The insistence on the production of  a ‘No objection Certificate’ from the Corporation  by  a person applying for a special permit under section 63(6)  of the Act was wholly unwarranted. [456H; 457A-B]     Mohd.  Basha  and  others  v.  The  Secretary,  Regional Transport  Authority  and Anr., A.I.R.  1975  A.P.  242;  G. Shaikh  Shavalli,  Uravakonda  &  Ors.  v.  The   Secretary, Regional  Transport  Authority, Anantapur and  Anr.,  A.I.R. 1982 A.P. 296; S.R.M.S. Tourist Service Co. Bangalore & Ors.                                                   PG NO 450 v. The Secretary, Regional Transport Authority, A.I.R.  1975 Karnataka   166;  K.N.  Sreekantaiah  v.  Deputy   Transport Commissioner,  Bangalore  &  Anr., [1979]  2  Karnataka  Law Journal  292; Adarsh Travels Bus Service & Anr. v. State  of Uttar  Pradesh & Ors., [1985] Supp. 3 S.C.R.  661,  referred to.

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1622   of 1987.     From the Judgment and Order dated 23.6.1986 of the Bombay High Court in W.P. No. 562 of 1986.     S.N.  Kacker, Mrs. J. Wad and Mrs. Aruna Mathur for  the Appellant.     G. Ramaswamy, Additional Solicitor General, A.S. Bhasme, K.R. Nagaraja and R.S. Hegde for the Respondents.

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   A. Mariarputham for the Intervener.     The Judgment of the Court was delivered by     VENKATARAMIAH,  J.  The question involved in  this  case relates to the right of a person to obtain a special  permit under  sub-section (6) of section 63 of the  Motor  Vehicles Act,  1939 (hereinafter referred to as ‘the Act’) to  ply  a public  service  vehicle on routes or  portions  thereof  in respect of which a scheme approved under section 68-D of the Act providing for exclusive operation of contract  carriages on  the said routes by a State transport undertaking to  the complete  exclusion  of all other persons has  been  brought into force.     By  a notification dated 29th November,  1973  published under  section  68-D(3)  of the Act  by  the  Government  of Maharashtra,   the   Maharashtra   State   Road    Transport Corporation  (hereinafter referred to as ‘the  Corporation’) was authorised to operate contract carriage services in  the entire  area of the State of Maharashtra and on  all  routes and  portions  thereof falling within the said area  to  the complete exclusion of all other persons except those falling under  the  seven categories of persons  mentioned  therein, namely, (1) a State Transport Undertaking, as defined  under 8section   68-A(b)   of  the  Act;  (2)   holders   of   duly countersigned  permits  on  inter-State  routes  save  those falling  under  the second proviso to section 63(1)  of  the Act, (3) holders of contract carriage permits for  operation of  motor  cars; (4) holders of  contract  carriage  permits granted for operation of air-conditioned vehicles only,  (5)                                                   PG NO 451 holders  of  contract  carriage  permits  for  operation  of vehicles  owned  by them exclusively for  transportation  of person,  employed  by them or students or members  of  their institutions  from  and to their residences  and  respective places  of  work  or  study and  for  occasional  tours  and excursions;  (6)  holders of contract carriage  permits  for operation  wholly  within the municipal  limits  of  Greater Bombay, and cities of Poona, Sholapur and Kolhapur where the municipal authorities are operating road transport  service; and (7) holders of contract carriage permits granted to them exclusively for the daily transportation at appointed  hours and between specified  terminals and pick up points of  only the  persons employed by or studying in  establishments  and institutions  with  which  the  said  permit  holders   have specified  contract  for the purpose. The said  scheme  came into  force  on January, 1974. The appellant,  who  did  not belong  to any one of the above seven categories applied  to the  Regional Transport Authority, Bombay (C) for a  special permit  under  sub-section (6) of section 63 of the  Act  in relation  to  the  motor vehicle bearing  No.  MRL-8088  for plying it on the route Bombay to Ashtu Vinayak  via  Panvel, Mahad, Poona, Shirdi etc. for a period of five days,  namely from  18.9.1985  to  22.9.1985  in Form  P.  Co.  Sp.  A  in accordance with rule 80 of the Bombay Motor Vehicles  Rules, 1959. The application made by the appellant for the  special permit  was  rejected by the Secretary,  Regional  Transport Authority on the ground that the appellant had not  produced a  ‘No Objection Certificate’ issued by the Corporation  for the grant of a special permit by his Order dated  17.9.1985. It  was also stated that the Corporation being the  operator having  the  exclusive  privilege  in  the  entire  area  of Maharashtra  State to operate contract carriages  under  the scheme it was the primary duty of the Corporation to provide transport  facilities to the intending passengers and if  it failed to do so, the Corporation could issue a ‘No Objection Certificate’  to enable other intending operators  to  enter

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into contract. Hence it was held that in the absence of  the ‘No  Objection  Certificate’ issued by  the  Corporation  no special  permit could be issued under section 63(6)  of  the Act. Aggrieved by the order passed by the Regional Transport Authority,  the  appellant filed an appeal under section  64 of the Act before the Maharashtra State Transport  Appellate Tribunal,  Bombay. The Tribunal allowed the  appeal  holding that a special permit issued under section 63(6) of the  Act was not a contract carriage permit issued under the Act  and that  the scheme relied upon by the Corporation under  which it  had exclusive monopoly to operate contract carriages  in the  State of Maharashtra to the complete exclusion  of  all persons  other than these who were specifically  saved  from the  operation  of  the scheme did not have  the  effect  of preventing  any  person from applying for a  special  permit                                                   PG NO 452 under  section 63(6) of the Act to operate a public  service vehicle  on any of the routes in the State  of  Maharashtra. The  judgment of the Tribunal was delivered on December  19, 1983.  Aggrieved  by  the  judgment  of  the  Tribunal,  the corporation  filed a writ petition in Writ Petition No.  562 of 1986 on the file of the High Court of Bombay  questioning the correctness of the order of the Tribunal. The said  Writ Petition  was heard along with another Writ  Petition  which had been filed by the Corporation against M/s. Auto  Hirers, Tardeo, Bombay and others in Writ Petition No. 561 of  1986. By  a  common  judgment the High  Court  allowed  the   Writ Petition  and  set  aside the order of  the  Tribunal.  This appeal by special leave is filed against the judgment of the High Court.     It  is necessary to refer to some of the  provisions  of the  Act at this stage. A ‘contract carriage’ is defined  in section  2(3) of the Act as a motor vehicle which carries  a passenger or passengers for hire or reward under a  contract expressed  or implied for the use of the vehicle as a  whole at or for a fixed or agreed rate or sum (i) on a time  basis whether  or not with reference to any route or distance,  or (ii)  from one point to another, and in either case  without stopping  to  pick up or set down along the  line  of  route passengers  not  included in the  contract, and  includes  a motor  cab  notwithstanding  that  the  passengers  may  pay separate  fares.  An  application for  a  contract  carriage permit is required to be made in accordance with section  49 of  the Act which provides that an application for a  permit to use one of more motor vehicles as a contract carriage  or carriages  shall contain the following particulars,  namely, (a) the type and seating capacity of the vehicle or each  of the vehicles, (b) the area for which the permit is required; (c)  in the case of a motor vehicle other than a motor  cab, the   manner  in  which  it  is  claimed  that  the   public convenience will be served by the vehicle; and (d) any other particulars  which may be prescribed. Section 50 of the  Act specifies  the  procedure  to be followed  by  the  Regional Transport  Authority  in  considering  the  application  for contract carriage permit. It says that a Regional  Transport Authority shall in considering an application for a contract carriage  permit,  have  regard  to  the  extent  to   which additional contract carriages may be necessary or  desirable in   the   public  interest;  and  shall  also   take   into consideration any representations which may then be made  or which  may  previously  have been made  by  persons  already holding  contract carriage permits in the region or  by  any local authority or police authority in the region or by  any local  authority or police  authority in the region  to  the effect  that  the  number of contract  carriages  for  which

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permits  have already been granted is sufficient for  or  in excess  of  the needs of the region or any area  within  the                                                   PG NO 453 region. Section 51 of the Act provides for grant of contract carriage permits. That section provides that subject to  the provisions  of section 50, a Regional  Transport  Authority, may, on an application made to it under section 49, grant  a contract carriage permit in accordance with the  application or   with  such modifications as it deems fit or  refuse  to grant such a permit. In the event of the Regional  Transport Authority  deciding to grant a contract carriage  permit  it can  attach to the permit any one or more of the  conditions specified  in  sub-section  (2) of section 51  of  the  Act. Section 58 of the Act deals with the duration of a  contract carriage permit. It provides that a stage carriage permit or a  contract  carriage permit other than a  temporary  permit issued  under  section  62 of the  Act  shall  be  effective without  renewal for such period, not less than three  years and  not  more than five years, as  the  Regional  Transport Authority  may specify in the permit. Such a permit  may  be renewed on an application made and disposed of as if it  was an application for a permit under sub-section (2) of section 58  of  the  Act.  Section  62 of  the  Act  lays  down  the provisions  for grant of a temporary permit to be  effective for a limited period not exceeding four months. Then follows section  63  of the Act which deals with the  validation  of permits  for use outside the region in which  granted.  Sub- section  (1)  of Section 63 provides that 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 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 or  that other State or by the Regional Transport  Authority concerned.  Sub-section  (6) of section 63 of the  Act  with which we are concerned in this case reads thus:     "(6)  Notwithstanding anything contained in  sub-section (1),  but subject to any rules that may be made  under  this Act, the Regional Transport Authority or any one region may, for the convenience of the public, grant a special permit in relation  to  a  public  service  vehicle  for  carrying   a passenger or passengers for hire or reward under a contract, express  or implied, for the use of the vehicle as  a  whole without  stopping to pick up or set down along the  line  of route passengers not included in the contract, and in  every case  where  such special permit is  granted,  the  Regional Transport Authority shall assign to the vehicle, for display thereon,  a  special  distinguishing mark in  the  form  and                                                   PG NO 454 manner specified by the Central Government and such  special permit  shall be valid in any other region or State  without the countersignature of the Regional Transport Authority  of the other region or of the State Transport Authority of  the other  region  or of the State Transport  Authority  of  the other State, as the case may be."     It is no doubt true that the special permit issued under sub-section  (6)  of section 63 of the Act has same  of  the features  of  a contract carriage permit but it is  not  the same  as  a  contract carriage  permit.  The  distinguishing features  of  these two types of permits are  these:  (1)  A permit for which an application is made under section 49  of the Act and which is granted under section 51 of the Act  is called  a  contract carriage permit. A permit  issued  under section  63(6)  of the Act is called a special  permit.  (2)

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While  a  contract  carriage permit  issued  by  a  Regional Transport  Authority of any one region is not valid  in  any other region unless the permit has been countersigned by the Regional Transport Authority of the other region as provided under  section 63(1) of the Act a special permit  issued  by one Regional Transport Authority under section 63(6) of  the Act  is  valid  in any other region  or  State  without  the countersignature of the Regional Transport Authority of  the other  region  or the other State as the case  may  be.  (3) While  the  duration  of a contract carriage  permit  is  as prescribed under section 58(1) of the Act, a special  permit can be issued only for a specific period which may be for  a few days only as in the present case in accordance with  the rules  prescribed for that purpose. (4) A contract  carriage permit  is  renewable under section 58(2) of  the  Act,  but there is no corresponding provision providing for renewal of a  special permit. Thus it is seen that a contract  carriage permit  and  a special permit are not one and  the  same.  A special  permit  is  ordinarily taken to meet  a  need  that exists  for  a few days like carrying a  marriage  party  or persons going on a pilgrimage etc.     The learned counsel for the Corporation relied upon  two decisions  of  the Andhra Pradesh High  Court,  i.e.,  Mohd. Basha  and  Others  v.  The  Secretary,  Regional  Transport Authority  and Another, A.I.R. 1975 A.P. 242 and  G.  Shaikh Shavalli,  Uravakonda and Others v. The Secretary,  Regional Transport Authority, Anantapur and Another A.I.R. 1982  A.P. 296  in support of his contention that a special  permit  is not in any way different from a contract carriage permit. In the first case the question involved was whether it was open to  a  Regional  Transport  Authority  to  insist  upon  the furnishing  of the names of passengers who were included  in the  contract.  The High Court in that case  held  that  the Regional  Transport Authority was entitled to call upon  the                                                   PG NO 455 applicant  for a special permit to furnish the names of  the passengers  in order to satisfy itself that the  application was  a  genuine application for the  purposes  mentioned  in section  63(6)  of  the Act and was not  intended  to  be  a camouflage  for  using  the vehicle  unauthorisedly  and  in deciding  the said case the learned Judge, who  decided  the case, no doubt referred to the common feature, that  existed between  a  contract carriage permit and a  special  permit, namely,  that the passengers could be carried in  them  only under  a single contract without stopping to  pick up or  to set  down  along  the  line  of  the  route  passengers  not including  in the contract. In the second case the  question was  whether it was open to the holder of a  special  permit issued under section 63(6) of the Act to take his bus  empty from his State into another State and to pick up  passengers there  and  transport them to the end of their  voyage,  set them  down  at their starting point in the other  State  and drive  the bus back to the home State empty. The High  Court said  that  the  holder of a special  permit  could  not  be permitted  to  do so since such a permit can be  issued  for carrying  passenger  or passengers for hire or reward  in  a contract express or implied for the use of the vehicle as  a whole  without  stopping to pick up along the  line  of  the route  passengers  not included in the  contract.  In  these decisions  it  was  enough to deal with one  of  the  common features that existed in a contract carriage permit and in a special  permit and the ratio of each of the said  decisions depended  on that common feature. There was no necessity  to examine  all  the  features  of the  two  kinds  of  permits referred  to above in order to determine whether  they  were

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the  same for all intents and purposes. In neither of  these two  decisions  the features that distinguished  a  contract carriage permit from a special permit have been  considered. There  was also no consideration of the question whether  on the publication of an approved scheme under section  68-D(3) of the Act excluding the operation of contract carriages  by persons other than the State Transport Undertaking concerned special permit under section 63(6) of the Act could or could not be issued.     On  the  other  hand  there are  two  decisions  of  the Karnataka  High  Court where a special permit  issued  under section 63(6) of the Act has been held to be different  from a  contract carriage permit issued under section 51  of  the Act.  In S.R.M.S. Tourist Service Co., Bangalore and  Others v. The Secretary, Regional Transport Authority, A.I.R.  1975 Karnataka  166 the State Government had published  a  scheme under  section  68-C  of the Act  proposing  to  nationalise contract  carriage services. The question for  consideration before  the Court was whether after the publication  of  the said scheme it was open to the Regional Transport  Authority                                                   PG NO 456 to grant a special permit under section 63(6) of the Act. K. Jagannatha   Shetty,  J.  (as  he  then  was)  taking   into consideration the peculiar features of a special permit took the view that it was impossible to reach the conclusion that the  Legislature  intended  to equate  a  contract  carriage permit  with a special permit and held that one was  totally different  from  the  other. He accordingly  held  that  the publication  of  a  scheme under section  68-C  of  the  Act proposing  to nationalise contract carriage service was  not an  impediment for the grant of permits under section  63(6) of  the Act in respect of the routes covered by the  scheme. In  K.N.  Sreekantaiah  v.  Deputy  Transport  Commissioner, Bangalore  & Another, [1979] 2 Karnataka Law Journal  292  a Division  Bench of the Karnataka High Court, has  taken  the view that a special permit issued under section 63(6) of the Act  was  different from a contract carriage  permit  issued under  section  51 of Act. While doing so  it  approved  the decision  of Jagannatha Shetty, J referred to above. We  are in agreement with the decisions of the Karnataka High Court. We  hasten  to add that the conclusions reached in  the  two Andhra Pradesh High Court decisions are also correct. It  is open to the Regional Transport Authority if it wishes to  do so to insist upon the furnishing of the names of passengers, who  are proposed to be carried in a bus under  the  special permit  for  which an application is made and  also  that  a holder  of  a  special permit cannot run his  bus  empty  to another State to pick up passengers, who are not covered  by the  contract, there, to drop them in that State at the  end of  the journey and to return to his own State where he  had obtained  the special permit in an empty bus, because  these two  conclusions are based on the condition to be  found  in section  63(6)  itself  which provides that a  holder  of  a special  permit  cannot  pick up or set down  on  the  route passengers  nor covered by the contract.    In  the  present case  the High Court of Bombay erred in not taking  note  of the distinguishing features that existed between a  contract carriage permit and a special permit. it is significant that in   the  State  of  Maharashtra  the   Regional   Transport Authorities  had  not taken the view until  the  High  Court pronounced this judgment that in no event a  special  permit could  be issued to a person other than the Corporation  and the  seven  classes of persons who were  excluded  from  the operation  of the scheme. They were issuing special  permits to  such  persons  on  the production  of  a  ‘No  Objection

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Certificate’  issued  by the Corporation. A  special  permit could  not be issued after the publication of  the  approved scheme even when the Corporation had issued a ‘No  Objection Certificate’  because  the scheme did not provide  that  the clause  regarding exclusion of other persons from  operating contract carriages would cease to operate if the Corporation                                                   PG NO 457 issued  a ‘No Objection Certificate’. The insistence  on  he production   of   a  ‘No  Objection  Certificate’   by   the Corporation by a person applying for a special permit  under section  63(6) of the Act was therefore wholly  unwarranted. We  are of the view that the provision in the  scheme  which excludes operation of contract carriage services by  persons other than those who are permitted to do so under the Scheme refers  to only those persons who wish to operated  contract carriage  services under permits issued under section 51  of the Act. The scheme does not in any way prevent the  issuing of  special  permits under section 63(6) of the Act  by  the Regional Transport Authorities in accordance with law as  it does  not say that holders of special permits under  section 63(6) would also be excluded from running the public service vehicles  on the rates in question. It now  becomes  obvious that the decision in Adarsh Travels Bus Service and  another v. State of Uttar Pradesh & Others, [1985] Supp. (3)  S.C.R. 661 on which the High Court has relied has no application at all  to  the  case on hand. That decision  would  have  been relevant if a contract carriage permit and a special  permit were of the same type.     We, therefore, set aside the judgment of the High  Court of  Bombay  against which this appeal is  filed.  Since  the period in respect of which the special permit was sought has expired, there is no necessity to issue a writ directing the Regional Transport Authority to consider the application  of the  appellant for a special permit again. Hence, we do  not issue  any  such  direction. The true  legal  position  has, however, been set out above.     The appeal is accordingly disposed of. No costs. R.S.S.                                  Appeals disposed of.