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PETITIONER: BRIJ MOHAN PARIHAR

       Vs.

RESPONDENT: M.P. STATE ROAD TRANSPORT CORPORATION & ORS.

DATE OF JUDGMENT25/11/1986

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

CITATION:  1987 AIR   29            1987 SCR  (1) 369  1987 SCC  (1)  13        JT 1986   935  1986 SCALE  (2)894

ACT:     Motor  Vehicles Act, 1939: ss. 68-C, 68-D, 68-F,  68-FF, 42  and 59: State Road Transport Corporation--Permit  issued to--Private  operator  whether  entitled to  ply  his  motor vehicle as nominee of Corporation.     Road      Transport      Corporation     Act,      1950: s.19(2)(h)--State  Road Transport Corporation not authorised to  allow  private operator to run his vehicle on  a  permit issued to the Corporation.

HEADNOTE:     Section 68-FF of the Motor Vehicles Act, 1939  prohibits grant  of  permit in respect of notified  area  or  notified route by State Transport Authority or the Regional Transport Authority  except  in accordance with the  scheme  published under subs. (3) of s. 68-D but provides for grant of  tempo- rary permits in cases where no application for a permit  has been  made by the State Transport Undertaking in respect  of such  notified  area or route. Section 59 bars  transfer  of permits  from one person to another except with the  permis- sion  of the concerned Transport Authority. Section 42  pro- hibits the owners of transport vehicles from plying them  in public  places except in accordance with the  conditions  of the permit.     Under  an  agreement entered into  with  the  respondent Corporation the petitioner was permitted to PlY his bus on a specified  route as a nominee of the former for a period  of five  years  ending  on December 23,  1982.  Thereafter  the respondent  was issued temporary permits and the  petitioner was  permitted  by it to ply his motor  vehicle  on  monthly basis. The route in question had by that been brought within a scheme published under s. 68-C of the Act.     The respondent through an advertisement dated August 12, 1984 invited tenders from private operators for the grant of privilege  of running buses as stage carriages as its  nomi- nees.  Aggrieved  by the said advertisement  the  petitioner filed a writ petition in the High Court assailing the  deci- sion  to invite tenders as arbitrary and illegal, and for  a writ  in  the nature of mandamns  directing  the  respondent Corporation  to  allow him to ply his motor vehicle  as  its nominee for a further period of five years. Under an interim

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order  of the  Court he continued to ply his bus as a  stage carriage  till  May 31, 1985. Subsequently, the  High  Court dismissed the petition since the scheme 370 published  under  s. 68-C of the Act had been  approved  and brought into effect from June 1, 1985. Dismissing the petition for special leave, the Court,     HELD: 1.1 It is not permissible under the Motor Vehicles Act  for  a State Transport Undertaking to obtain  a  permit under  Chapter IV-A and to allow a private operator  as  its nominee to operate under that permit his motor vehicle as  a stage carriage on the notified route. It cannot by  granting such permission collect any money either as nomination  fees or  as royalty or supervision charges. Section 42 and 59  of the Act which equally apply to permits issued under  Chapter IV-A,  debar  all holders of permits,  including  the  State Transport  Undertakings from indulging in such  unauthorised trafficking in permits. [373E, 374A, D]     1.2  The petitioner was not, therefore, entitled to  the issue of a writ in the nature of mandamus to the  respondent Corporation to allow him to operate his’ motor vehicle as  a stage  carriage under the permit obtained by the latter,  as its  nominee. The agreement entered into by  the  petitioner with  the  respondent was clearly contrary to  the  Act  and could  not  be  enforced. The advertisement  issued  by  the respondent was equally ineffective. [374E]     2. If the respondent Corporation cannot run its  vehicle under  a permit issued to it, it must surrender it  so  that the  Regional  Transport Authority may grant the  permit  to some  other  deserving applicant or it must transfer  it  to somebody else with the permission of the Regional  Transport Authority granted under s.59 of the Act. It cannot allow the permit  to  be used by others either  for  consideration  or without consideration. If it does so it would be  exercising the power of the Regional Transport Authority. The  Corpora- tioncannot thus indirectly clutch at the jurisdiction of the Regional Transport Authority. [374F]     3.1  Even though the Corporation was established by  the State Government under the Road Transport Corporations  Act, 1950  and  the State Government had by  an  executive  order approved  the  action of the Corporation  to  allow  private operators to operate their vehicles under the permits issued to  the Corporation, the Corporation could not in law  allow its nominees to exploit the permits in such manner. [374B]     3.2  Section 19(2)(h) of the Road Transport  Corporation Act only authorises the Corporation to purchase or otherwise secure by agreement vehicles owned or possessed by the owner of any other undertaking for use thereof for the purpose  of its undertaking. It does not authorise the 371 Corporation  to permit another person to run his vehicle  on his  own under a permit issued to the Corporation by  paying some amount to the Corporation. [375B]     3.3 It would have been different if there had been a law corresponding  to the Uttar Pradesh Motor  Vehicles  Special Provisions  Act (27 of 1976) under which the  competent  au- thority  can authorise such operation subject to the  condi- tions specified therein. [374C]     Adarsh  Travels Bus Service & Ant., v. State of  U.P.  & Ors.,  [1985]  4 S.C.C. 557; Sumer Chand Sharma  &  Anr.  v. State of U.P. & Anr. [1986] 3 S.C.C. 263, referred to.

JUDGMENT:

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   CIVIL  APPELLATE  JURISDICTION: Special  Leave  Petition (Civil) No. 3486 of 1986.     From the Judgment and Order dated 6.1.1986 of the Madhya Pradesh High Court in Misc. Petition No. 2577 of 1984.     K.K. Venugopal, G.L. Sanghi, M.N. Krishnamani and  Diwan Balak Ram for the Petitioner. Rameshwar Nath for the Respondents. The order of the Court was delivered by     VENKATARAMIAH,  J. The petitioner in the above  petition filed  under Article 136 of the Constitution has prayed  for special  leave  to appeal against the judgment of  the  High Court  of Madhya Pradesh in Miscellaneous Petition No.  2577 of 1984 dated 6.1.1986. In the petition filed under  Article 226 of the Constitution before the High Court the petitioner had  questioned the validity of an advertisement  issued  by the  Madhya Pradesh Road Transport Corporation  (hereinafter referred  to  as ’the Corporation’)  inviting  tenders  from owners  of motor vehicles for plying their vehicles  on  the routes  mentioned  therein as nominees  of  the  Corporation under the permits issued in favour of the Corporation  under the provisions of the Motor Vehicles Act, 1939  (hereinafter referred to as ’the Act’). It is alleged that the petitioner who  was  an unemployed graduate entered into  an  agreement with  the  Corporation to ply his bus as a  nominee  on  the route Gwalior to Chinor via Dabra for a period of five years ending  on  December 23, 1982. The route  in  question  came within  scheme  No. 38 published under section 68-C  of  the Act.  The  permit  of  the  Corporation  was  to  expire  on 23.12.1982..Therefore the Corporation applied for renewal of its  permit but since it took time for finalisation,  tempo- rary  permits were issued from time to time. The  petitioner was permitted to ply his 372 bus  on  the  monthly basis during that  period.  Under  the agreement  the  petitioner was liable  to  pay  periodically certain  amount  to the Corporation as  nomination  fees  or supervision charges and additional taxes. But on  12.8.1984, as  stated earlier, tenders were invited by the  Corporation from  private  operators for the grant of the  privilege  of running  buses  as stage carriages as the  nominees  of  the Corporation.  Aggrieved by the said advertisement the  peti- tioner  filed the writ petition, referred to above,  in  the High Court. The petitioner contended that even though he had been regularly paying the nomination fees and taxes, yet the Corporation in order to earn more money by way of nomination fees had invited tenders from others with a stipulation that tenders of those giving the highest offers by way of nomina- tion  fees  would be accepted and they  would  be  appointed nominees of the Corporation to ply the stage carriages.  The petitioner  further  contended that the decision  to  invite tenders  was arbitrary and illegal. In the Writ Petition  he obtained an interim order dated 11.9.1984 under which he was allowed to operate his motor vehicle as a stage carriage  on the same terms and conditions as the nominee of the CorpOra- tion.  The petitioner continued to ply his motor vehicle  on the route in question on the basis of the temporary  permits issued in the name of the Corporation till 31.5.1985.  Since no temporary permit was obtained by the Corporation thereaf- ter the petitioner could not ply his motor vehicle in  ques- tion. In the meanwhile under the orders passed by this Court in Special Leave Petition Nos. 941, 4667 to 4669, and  7115- 7117  of 1985 dated July 22, 1985 filed by some others,  the petitioners therein who were similarly situated were allowed to  ply  their motor vehicles on some other  routes  as  the nominees of the Corporation for a period of five years.  The

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above order, it is alleged, was passed on a concession  made bY  the  Corporation.  The said order is  not  supported  by reasons.  The petitioner relying upon the above  order  con- tended  before the High Court in the writ petition filed  by him that he should also be permitted to ply his motor  vehi- cle as a nominee of the Corporation for a further period  of five years. The High Court declined to grant the request  of the  petitioner  since by then the scheme No.  38  had  been approved  and  had come into effect from June  1,  1985  and dismissed the writ petition on January 6, 1986. Aggrieved by the  order of the High Court the petitioner has  filed  this petition.     It  is contended on behalf of the petitioner that  since the  petitioner  had been permitted  to  operate  his  motor vehicle  as  a stage carriage service as a  nominee  of  the Corporation  under  a programme called ’Half a  Million  Job Programme’  initiated by the Government of India  which  was being  implemented by the State of Madhya Pradesh  he  could not  be  denied the privilege of continuing to  operate  his motor vehicle on the notified route in question. Reliance is also placed by the learned counsel for the petitioner on the order  passed by this Court on July 22, 1985 in some of  the special  leave  petitions referred to above  permitting  the petitioners therein to operate their motor 373 vehicles  as the nominees of the Corporation for  a  further period  of  five years. After the disposal  of  the  special leave  petitions referred to above on July 22, 1985 by  this Court,  on  October 17, 1985 a Constitution  Bench  of  this Court delivered its judgment in Adarsh Travels Bus Service & Anr.,  v. State of U. P. & Others. [1985] 4 S.C.C.  557.  In that case the Constitution Bench held that reading  sections 68˜C,  68-D(3)  and 68-FF of the Act together it  was  clear that  once a scheme was published under section 68-D of  the Act  in  relation to any area or route or  portion  thereof, whether to the exclusion, complete or partial of other  per- sons or otherwise, no person other than the State  Transport Undertaking  could operate a stage carriage on the  notified route  or  in the notified area except as  provided  in  the scheme itself.     Admittedly, the approved scheme published under  section 68-D  of the Act has come into operation in respect  of  the route in question excluding the operation of stage carriages by all others. Section 68-FF of the Act states that where an approved scheme has been published under sub-section (3)  of section  68-D of the Act in respect of any notified area  or notified route the State Transport or the Regional Transport Authority,  as the case may be, shall not grant  any  permit except  in accordance with the provisions of the scheme.  It further provides that where no application for a permit  has been  made by the State Transport Undertaking in respect  of any  notified  area  or notified route in  pursuance  of  an approved  scheme, the State Transport Authority or  the  Re- gional  Transport Authority, as the case may be,  may  grant temporary permits to any person in respect of such  notified area  or notified route subject to the condition  that  such permit shall cease to be effective on the issue of a  permit to  the State Transport Undertaking in respect of that  area or route. It is not, however, permissible under the Act  for the Corporation to obtain a permit under Chapter IV-A of the Act and to allow a private operator as its nominee to  oper- ate under that permit his motor vehicle as a stage  carriage on the notified route. It cannot by granting such permission collect  any money either as nomination fees or  as  royalty ’or  supervision charges. Section 59 of the Act  which  lays

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down the general conditions attached to all permits provides that  save  as provided in section 61 of the Act,  a  permit shall not be transferable from one person to another  except with the permission of the Transport Authority which granted the permit and shall not without such permission operate  to confer on any person to whom a vehicle covered by the permit is  transferred any right to use that vehicle in the  manner authorised  by the permit. Section 61 of the Act only  deals with the question of transfer of the permit on the death  of the holder of the permit in favour of his successor. Section 42 of the Act provides that no owner of a transport  vehicle shall  use  or permit the use of the vehicle in  any  public place  whether or not such vehicle is actually carrying  any passenger or goods save in accordance with the conditions of a  permit  granted or countersigned by a Regional  or  State TranSport Authority or the Commission 374 authorising  the  use of the vehicle in that  place  in  the manner  in which the vehicle is being used. Section  42  and section  59  of the Act which are in Chapter IV of  the  Act apply  to permits issued under Chapter IV-A of the Act  also since  in Chapter IV-A of the Act we do not find any  provi- sion which is inconsistent with these two sections.  Section 68-B  of the Act only provides that Chapter IV-A of the  Act and  the rules and orders made thereunder shall have  effect notwithstanding anything inconsistent therewith contained in Chapter IV of the Act or any Other law for the time being in force  or in any instrument having effect by virtue  of  any such law. Even though the Corporation is established by  the State Government under the Road Transport Corporations  Act, 1950  and  the State Government has by  an  executive  order approved  the  action of the Corporation  to  allow  private operators to operate their vehicles under the permits issued to  the Corporation as the nominees of the Corporation,  the Corporation cannot in law allow its nominees to exploit  the permits  by running their motor vehicles against payment  of some  amount to the Corporation since there is no  statutory provision authorising the grant of such permission. It would have been different if there had been a law corresponding to the Uttar Pradesh Motor Vehicles Special Provisions Act  (27 of  1976) under which the competent authority can  authorise such  operation subject to the conditions specified  therein (See  Sumer  Chand Sharma and Another v. State of  U.P.  and Another, [1986] 3 S.C.C. 263). The provisions of the Act and in  particular sections 42 and 59 clearly debar all  holders of permits including the Corporation from indulging in’ such unauthorised  trafficking in permits. The agreement  entered into  by  the  petitioner with the  Corporation  is  clearly contrary  to the Act and cannot, therefore, be enforced.  In the  circumstances,  the petitioner is not entitled  to  the issue of a writ in the nature of mandamus to the Corporation to  allow him to operate his motor vehicle as a  stage  car- riage  under the permit obtained by the Corporation  as  its nominee.  It  follows that the advertisement issued  by  the Corporation  is equally ineffective. The position would  not be  different even where the permit is issued in  favour  of the Corporation under Chapter IV of the Act. If the Corpora- tion cannot run its vehicle under a permit issued to it,  it must  surrender it so that the Regional Transport  Authority may grant the permit to some other deserving applicant or it must  transfer it to some body else with the  permission  of the Regional Transport Authority granted under section 59 of the  Act. It cannot however allow the permit to be  used  by somebody else to run his vehicle either for consideration or without consideration. If it does so it would be  exercising

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the power of the Regional Transport Authority. The  Corpora- tion  cannot thus indirectly clutch at the  jurisdiction  of the  Regional  Transport  Authority. It is  hoped  that  the Corporation  will desist from entering into such  agreements with  third parties, which are wholly illegal and from  con- tinuing to allow them to run their vehicles as its nominees. The concerned Regional Transport Authority should immediate- ly take action to stop such illegal operation of transport 375 vehicles  on  all  routes, both  notified  and  non-notified routes.     It is seen that in one of the documents filed before the High Court it was asserted that the Corporation could  allow private  operators to operate their vehicles in the name  of the Corporation under section 19(2)(h) of the Road Transport Corporation  Act, 1950. That provision only  authorises  the Corporation  to  purchase or otherwise secure  by  agreement vehicles owned or possessed by the owner of any other under- taking  for use thereof by the Corporation for the  purposes of its undertaking. It does not however authorise the Corpo- ration  to permit another person to run his vehicle  on  his own under a permit issued to the Corporation by paying  some amount  to the Corporation. Hence no reliance can be  placed on the above provision.     It was lastly contended on behalf of the petitioner that since  the Corporation was not in a position to operate  its motor vehicles on the notified routes in accordance with the approved scheme, the scheme itself is liable to be  quashed. Since  the said prayer is not made in the writ petition,  we cannot  consider the said question It is open to  the  peti- tioner  if he is so advised to approach the High  Court  for appropriate  relief in this regard. We may, however,  record here  that in the counter-affidavit filed before this  Court it  is stated that the Corporation is already operating  its own  motor  vehicles on the route in question.  The  Special Leave Petition is, however, dismissed. P.S.S.                                              Petition dismissed. 376