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PETITIONER: ANNA TRANSPORT CORPORATION LTD., SALEM

       Vs.

RESPONDENT: SAFE SERVICE LTD. AND OTHERS

DATE OF JUDGMENT22/08/1991

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. RAMASWAMY, K.

CITATION:  1992 AIR   64            1991 SCR  (3) 708  1992 SCC  Supl.  (1) 401 JT 1991 (6)   306  1991 SCALE  (2)499

ACT:     Motor  Vehicles  Act, 1939--Sections  68F(1-D)  Proviso, 68C,  68D(3), and 134(1- A)--Permit--Grant of--Draft  scheme u/s.  68C pending--Effect of-Continuing permits--Renewal of.

HEADNOTE:     In  Civil Appeal No. 937 of 1980 the Regional  Transport Authority,  out  of two permits, Wanted one  permit  an  the route  Salem to Poolambadi to the appellant-State  Transport Undertaking and tie other to the first respondent.     In Civil Appeal No. 938 of 1980 them was only one permit for  the route Salem to Pallipatti, which was Wanted to  the State Transport Undertaking, denying the second respondent.     In  Civil Appeal No. 939 of 1980, on the route Salem  to Poolambadi,  ant of two permits, one permit was  granted  to the  State  Transport Undertaking and the other  to  another private  operator,  denying  the permit  to  the  respondent therein.     In  Civil Appeal No. 940 of 1980, on the route Salem  to Erode,  the objection of the State Transport Undertaking  on the  renewal sought by the respondent was sustained and  the permit was granted to the State Transport Undertaking.     In  Civil Appeal No. 941 of 1980, an the route Salem  to Tiruchangode, the renewal application of the respondent  was declined  on objection by the State  Transport  Undertaking, who in turn, an its cation, was granted the permit.     All  the aggrieved parties preferred appeals before  the State  Transport  Appellate Tribunal,  which  dismissed  the appeals, holding that since a draft scheme under Section 68C of  the Motor Vehicles Act, 1939 had been published  by  the State  Government  and was under consideration at  the  time when  the matter was pending in appeal, subsection (1-D)  of Section  68-F  of the Act stood in the way  for  any  relief being granted to the private operators. 709     The  High. Court allowing the revision preferred by  the private operators, upset the orders of the Appellate Author- ity,  directing the Regional Transport Authority to  re-con- sider the matters on merit against which the State Transport Undertaking approached this Court by Special Leave.     The  appellants-the private operators in C.A. Nos.  940-

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941  of 1980 contendeed that Section 68(F)(1-D), proviso  of the  Motor Vehicles Act, 1939 was applicable to their  cases on  the strength of orders in terms of Section 134(1-A),  as valid  permits  were continuing and were  capable  of  being renewed for a limited period, so as to cease being effective on  the  publication  of the  final  scheme  under  .section 68D(3).     Allowing  C.A.  Nos. 937-939 of 1980  unqualifiedly  and C.A. Nos. 940-941 of 1980 qualifiedly, this Court, HELD  1.  To the cases of non-grant of permits  to  the  ag- grieved  private operates, sub-section (1-D) of Section  68F of the Act was clearly attracted .No permit could be granted on  their  asking in the presence of the draft  scheme.  And when none could be granted the exercise of consideration  of the  claim of the private operators on merit, was  itself  a futlifty. When the law forbade the grant of a permit, merits of grant stood nowhere. [711F-G]      2.  The private operators in C.A. Nos. 940-941 of  1980 were  functioning and had sought renewal of  their  existing permits  on  the routes in question and, on  denial  of  the same, and corresponding grant thereof to the State Transport Undertaking,  grievance arose to those private operators  to take  the  matter  in appeal. Their cases  fail  within  the proviso  to  sub-section (1-D) to Section 68F  of  the  Act. Their  permits were capaable of being renewed for a  limited period  provided they had exlpired after the publication  of the draft scheme under Section 68C of the  Act, [712B-C]      3. Even though the two appeals in C.A. Nos. 940-941  of 1980  shall  also meet the same fate as that  of  C.A.  Nos. 937-939 of 1980, they shall remain subjected to an alternate that  in  the  event of orders under  sub-section  (1-A)  of Section  134  being existent the  Appellate  Authority  shah examine the question and pass such orders in relation to the appeals  of these private operators in accordance with  law; but  in case there were no such orders earlier, the view  of the  Appellate Authority dismissing the appeals shall  stand affirmed. [712G-713A] 710     K.A.  Natarajan  v.M. Naina Mohammed &  Ant.,  AIR  1978 Madras 28O, referred to.

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 93794  1 of 1980.     From  the  JUdgment  and Order dated  22.2.1980  of  the Madras High Court in C.R.P. Nos. 934/78, 602/77, 110/78  and 111/78 and dated 29.2.1980 in C.R.P. No. 601 of 1977. A.V. Rangam for the Appellant. S. Srinivasan for the RespOndents. The following Order of the Court was delivered:     These  are five Civil Appeals by Special  Leave  against identical  orders  of a learned Single Judge of  the  Madras High Court.     In relation to Civil Appeal No. 937 of 1980 the Regional Transport Authority, out of two permits, granted one  permit on  the  route Salem to Poolambadi to  the  appellant  State Transport Undertaking and the other to the first respondent, Safe Service Ltd. In Civil Appeal No. 938 of 1980 there  was only one permit for the route Salem to Pallipatti which  was granted to the State Transport Undertaking. 1n other  words, it was denied to the Second respondent, R.P. David. In Civil Appeal  No. 939 of 1980, on the route Salem  to  Poolambadi, out  of  two permits, one permit was granted  to  the  State

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Transport  Undertaking  and  the other  to  another  private operator,  Suganeswara Motor Service denying the  permit  to R.P.  David-respondent  herein. In Civil Appeal No.  940  of 1980,  on  the route Salem to Erode, the  objection  of  the State Transport Undertaking on the renewal sought by  Parsu- raman  Pillai-respondent  was sustained and the  permit  was granted  to  the State Transport  Undertaking,  leaving  the private  operator  aggrieved. In Civil Appeal No.  94  1  of 1980, on the route Salem to Tiruchangode, the renewal appli- cation  of K. Ramaswamy-respondent operator was declined  on objection  by the State Transport Undertaking, who in  turn, on  its  application,  was granted the  permit  leaving  the private operator K. Ramaswamy-respondent aggrieved. All  the aggrieved parties preferred appeals before the State  Trans- port  Appellate  Tribunal. The Tribunal identically  in  all these  Cases took the view that since a draft  scheme  under Section  68C of the Motor Vehicles Act, 1939 had  been  pub- lished by the’ State Government and was under 711 consideration  at  the time when the matter was  pending  in appeal, sub-section 1-D of Section 68-F of the Act stood  in the way for any relief ’being granted to the private  opera- tors and thus dismissed the appeals. That provision  forbids permits being granted or renewed during the period interven- ing  between  the date of publication of  any  draft  scheme under  Section 68-C of the Act, and the date of  publication of the approved or modified scheme, in favour of any person, or  for any class of road transport service, in relation  to an  area,  or  route, or portion thereof,  covered  by  such scheme. However, the proviso thereto permits that where  the period  of  operation of a permit in relation to  any  area, route  or portion thereof specified in the scheme  published under  Section  68-C expires after  such  publication,  such permit  may be renewed for a limited period, but the  permit so renewed shall cease to be effective on the publication of the scheme under sub-section (3) of Section 68-D of the Act.     As  is  evident, the Appellate  Authority  applied  sub- section(1-D)  of Section 68F to all the five cases  and  not the  proviso.  The High Court on revision preferred  by  the private operators upset the orders of the Appellate Authori- ty directing the Regional Transport Authority to re-consider the matter on merit. While doing so it relied on a  judgment of  the Madras High Court in K.A. Natarajan v.M.  Naina  Mo- hammed & Anr., AIR 1978 Madras 280 to the effect that appeal before the Appellate Authority was maintainable even  though a  draft scheme within the terms of Section 68C of  the  Act had  appeared on the scene. The State Transport  Undertaking being aggrieved is before us by Special Leave.     We  have heard learned counsel on both sides. So far  as Civil Appeal Nos. 937-939/80 are concerned, these are  cases of non grant of permits to the aggrieved private  operators. To their cases sub-section (D) of Section 68F of the Act was clearly  attracted.  No  permit could be  granted  on  their asking  in the presence of the draft scheme. And  when  none could be granted the exercise of consideration of the  claim of  the aggrieved. private operators on merit, was itself  a futility. When the law forbade the grant of a permit in  the aforesaid  duration, merits of grant stood nowhere. In  this view  of the matter, we are inclined to take the  view  that the  High Court was in error in accepting the related  revi- sion petitions of the private operators and remitting  their cases  to  the Appellate Authority  for  reconsideration  on merits.  And  as a consequence it was further  in  error  in ordering that till such orders were passed by the  Appellate Authority, both the State Transport Under-

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712 taking  and  private operators could be allowed to  run,  in view of the facts which glare out on the record.     So  far  as Civil Appeal Nos. 940-941 of 1980  are  con- cerned,  the respective private operators  were  functioning and  had  sought renewal of their existing  permits  on  the routes  in question and, on denial of the same,  and  corre- sponding  grant thereof to the State Transport  Undertaking, grievance  arose  to  those private operators  to  take  the matter in appeal. Theirs were cases which could perhaps fall within  the proviso to sub-section (1-D) to Section  68F  of the  Act. Their permits were capable of being renewed for  a limited period provided they had expired after the  publica- tion  of the draft scheme under Section 68C of the Act.  The controverted plea of the State Undertaking however is  cate- goric  that  the renewal application was  rejected  on  30th August,  1974 in one case and on 19th October, 1974  in  the other,  and on such rejection both the permits were  granted to the State Transport Undertaking, and when the matter  was in  appeal before the Appellate Tribunal, the  draft  scheme was, much later, published on 4.6.1976.     Mr.  S.  Srinivasan, learned counsel appearing  for  the private  operators  in  Civil Appeal NOs.  940-941  of  1980 contends  that  when an appeal was taken  to  the  Appellate Authority, the provisions of subsection (1-A) of Section 134 of  the Act were invoked and orders were obtained,  notwith- standing the expiration of the term of the permit, so as  to continue the permit to be valid until the appeals before the Appellate  Authority were disposed of. On that basis  it  is contended  that the proviso to sub-section (1-D) of  Section 68F  of  the  Act comes to his rescue, on  the  strength  of orders  in terms of sub-section (1-A) of Section 134 of  the Act,  as valid permits were continuing and were  capable  of being  renewed  for a limited period, so as to  cease  being effective on the publication of the final scheme under  sub- section  (3) of Section 68D of.the Act. It may  not  require examining the contention because it is fractionally factual. The necessary factual data has not been placed before us  in the  form of a counter or the suggestive orders as such.  We are  thus left in the dark. Still, lest we cause any  injus- tice  to Mr. S. Srinivasan’s clients, we are goaded to  take the view that even though these two appeals shall also  meet the  same fate as that of Civil Appeal Nos. 937-939 of  1980 they  shall  remain subjected to an alternate  that  in  the event of orders under sub-section (1-A) of Section 134 being existent, the Appellate Authority shall examine the question and  pass  such orders in relation to the appeals  of  these private operators in accordance with law; but in case  there were no such 713 orders earlier, the view of the Appellate Authority dismiss- ing the appeals shall stand affirm,ed.     In  view  of what has been said above,  we  allow  Civil Appeal  Nos. 937-939 of 1980 unqualifedly and  Civil  Appeal Nos. 940-941 of 1980 qualifiedly in the terms above  stated. Parties shall bear their own costs in all these appeals. V.P.R.                                         Appeals   al- lowed. 714