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PETITIONER: GURCHARAN SINGH BALDEV SINGH

       Vs.

RESPONDENT: YASHWANT SINGH AND ORS.

DATE OF JUDGMENT15/11/1991

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) KANIA, M.H.

CITATION:  1992 AIR  180            1991 SCR  Supl. (2) 305  1992 SCC  (1) 428        JT 1991 (6)   256  1991 SCALE  (2)985

ACT: Motor Vehicles Act, 1939.’ Section 58(2)---Proviso.    Stage Carrier---Permit--Application for renewal of permit under  1939  Act--Enforcement of Motor  Vehicles  Act,  1988 during pendency of application---Effect of--Held  preference created  in favour of a permit holder for consideration  and grant  of permit is a right enforceable in law-By virtue  of Section  6(c) of the General Clauses Act, 1897 such a  right is  saved  by section 21 7(4) of the  1988  Act--Absence  of preference  clause  in section 81 of the 1988 Act  does  not destroy  the claim for renewal set in motion under the  1939 Act. General Clauses Act, 1897: Section 6(c) Statute-Repeal--Effect of-Object of section 6(c) explained.

HEADNOTE:    The appellant, a Stage Carriage Operator, filed an appli- cation for renewal of his permit under section 58(2) of  the Motor  Vehicles Act, 1939 and his application was  notified. However,  before the     renewal could be granted the  Motor Vehicles Act, 1988 came into force. The respondent had  also applied  for a fresh permit on the same route on  which  the appellant was operating his carriage. The Regional Transport Authority  allowed  renewal of the  appellant’s  permit  and rejected  the  respondent’s  application.  On   respondent’s appeal  the State Transport Appellate Tribunal held that  no appeal  against  renewal was  maintainable.  The  respondent filed  a  writ  petition and the High Court  allowed  it  by holding  that  right to seek renewal of a permit was  not  a vested right but was merely an incohate right which  ripened into  a  right only on being granted; with the  coming  into force  of  1988 Act, the 1939 Act was repealed as  a  result of  which the appellant’s application for renewal ceased  to exist and consequently the Regional Transport Authority  was not  empowered  to grant a renewal of  permit.  Against  the decision  of  the  High Court an appeal was  filed  in  this Court.     Allowing  the appeal and setting aside the order of  the High Court, this Court, 306     HELD:  1. The High Court committed a manifest  error  of

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law  in rejecting the appellant’s application of renewal  on the ground that the new Act had come into force. [310-H]     1.1  Although section 58(2) of the Motor  Vehicles  Act, 1939 uses the word ’may’ but read with proviso it creates  a preference in favour of a permit holder to claim renewal  if other  conditions  were  equal. A holder of  a  permit  thus stands  on a better footing. The preference created by  sub- section  (2) of Section 58 for consideration of  the  permit and its grant cannot be said to be a mere incohate right, or a right which does not exist in law. It may not be a  vested right or a fundamental right but it certainly is civil right which could be enforced in a court of law and any  authority acting  in contravention of it can be forced to act  in  ac- cordance with it. [310 B-C]     1.2  The  right accrued to appellant as he  had  already applied  for renewal and his application had been  notified. The  legal machinery was set in motion by him. He  therefore had a right to get his application for renewal processed and considered  in  accordance with 1939 Act. It  would  be  too technical to say that no right had accrued to him under 1939 Act.  By virtue of Section 6(c) of the General  Clauses  Act the right of the appellant to get his application considered and  decided in accordance with law was saved by  subsection (4) of Section 217 of Motor Vehicles Act, 1988. [310 D-E]     The Brihan Maharashtra Sugar Syndicate Ltd. v.  Janardan Ramchandra Kulkarni & Ors, [1960] 3 S.C.R.85, followed.     Cheran Transport Co. Ltd. v. Kanan Lorry Service & ,Anr, [1977] 2 S.C.R. 389; D. Nataraja Mudsliar v. State Transport Authority, Madras [1979] 1 S.C.R. 522, referred to.     2.  The objective of Section 6(c) of the General Clauses Act  is to ensure protection of any right or  privilage  ac- quired  under the repealed Act. The only exception to it  is legislative intention to the contrary. That is, the  repeal- ing  Act may expressly provide or it may  impliedly  provide against continuance of such right, obligation or  liability. [309-E]     3.  The new Act is a legislation on the same subject and Section 81 of the said Act specifically provides for renewal of permits. The scheme of renewal having been continued even under  new Act mere absence of preference clause in  Section 81 of the new Act 307 could  not be construed as destroying the claim for  renewal set in motion under the old Act. [311 B-C]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2568 of 1991.     From  the  Judgment  and Order dated  10.5.1991  of  the Madhya Pradesh High Court in M.P. No. 2727 of 1990.     S.K.  Mehta, R.D. Sharma, Dhruv Mehta, Arvind Verma  and Aman Vachher for the Appellants.     Rameshwar Nath and Ravinder Nath (for Rajinder Narain  & Co.) for the Respondents. The Judgment of the Court was delivered by     R.M.  SAHAI, J. The only legal question that arises  for consideration,  in this appeal directed against judgment  of the Madhya Pradesh High Court is, if an application filed by an  operator for renewal of his permit under Section  58  of Motor  Vehicles Act, 1939, became extinct and  was  rendered non-existent.  in  eye of law, after coming  into  force  of Motor Vehicles Act, 1988 or it being a right within  meaning of clause (c) of Section (6) of General Clauses Act survived

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and continued despite repeal of 1939 Act.     The  appellant, holder of a permit, for operating  stage carrier  on route Eklera-Narsinghgarh in  District  Rajgarh, applied for its renewal, as required, on 18th October, 1988, 120 days before the date of its expiry on 18th February 1989 under  Section  58(2) of the 1939 Act. The  application  was published  on  23rd June, 1989, under Section 57(3)  of  the Act. But before renewal could be granted 1988 Act came  into force on 1st July 1989. The respondent who, too, had applied on  30th December 1988 for a fresh permit on the same  route and on the same time schedule, withdrew his application  and filed  a fresh application on 18th May, 1990.  The  Regional Transport Authority after considering both the applications, allowed  renewal of the appellant’s permit from 18th  Febru- ary,  1989  to 18th February, 1994. The application  of  re- spondent  was rejected as that could be considered  only  if the appellant’s existing permit was cancelled, but since the appellant  was operating on the route regularly  and  paying taxes  etc.  there was no reason to refuse  renewal.  In  an appeal  to the State Transport Appellate Tribunal held  that no appeal against renewal was maintainable against which the respondent filed writ petition which was 308 allowed and it was held that right to seek renewal of permit under  a  Motor Vehicle Act was not a vested right.  It  was merely  an incohate right with ripens into a right  only  on being granted. But before this could happen the 1939 Act was repealed.  Effect of it was that the application  ceased  to exist.  Thus there was nothing pending which  could  empower the Regional Transport Authority to grant renewal.     Is  this correct? Could the application for  renewal  be dismissed,  only, because of enforcement of 1988 Act or  the right  of  the appellant to get his  application  under  the earlier  Act  decided in accordance with law  subsisted  and survived under the new Act as well. The answer shall  depend on  construction of Section 217, ’the repealing  and  saving provision,  in 1988 Act read with Section 6 of  the  General Clauses  Act.  Sub-Section (1) of Section 217  of  1988  Act repeals 1939 Act. But Sub-Section (2) saves certain  notifi- cations,  rules, regulations, Acts etc. Clause (b)  of  sub- section (2) reads as under:-               217(1)  Notwithstanding  the  repeal  by  sub-               section (1) of the repealed enactments, ---               "(b)  any certificate of fitness or  registra-               tion  or licence or permit issued  or  granted               under  the repealed enactments shall  continue               to  have effect after such commencement  under               the same conditions and for the same period as               if this Act had not been passed;" On  strength of this it was urged on behalf of the  respond- ents that the only saving was in respect of unexpired period of a permit. However what is relevant is sub-section (4)  of Section 217 which provides as follows:-               "S.217(4)  - The mention of particular  matter               in this Section shall not be held to prejudice               or affect the general application of section 6               of the General Clauses Act, 1897 (10 of 1897),               with regard to the effect of repeals." How  such a provision should be construed was  explained  by this Court in The Brihan Maharashtra Sugar Syndicate Ltd. v. Janardan  Ramchandra Kulkarni & Others, [1960] 3 SCR 85.  It was  held that such a provision was not by way  of  abundant caution and any proceedings pending under repeated Act could be continued in view of Section (6) of General Clauses  Act. Section 658 of Companies Act 1956 which was a repealing  and

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saving  provision which was considered by the Court read  as under:-               "The mention of particular matters in ss.  645               to  657 or in any other provision of this  Act               shall not prejudice the general ap-               309               plication of s(6) of the General Clauses  Act,               1897  (X of 1897), with respect to the  effect               of repeals."     It should be noticed that phraseology of Section 658  of the Companies Act and sub-section (4) of Section 217 of  the Motor Vehicles Act 1988 is identical. Therefore the  reason- ing given in the decision squarely applies for  construction of sub-section (4) of Section 217. Consequently it could not be, successfully, argued that sub-section (2) of Section 217 is  exhaustive and sub-section (4) should be read by way  of abundant  caution  and applied only to the  field  which  is already  covered  by  sub-section (2). Section  (6)  of  the General Clauses Act may now be extracted:               "S.6. - Effect of repeal - Where this Act,  or               any (Central Act) or Regulation made after the               commencement  of this Act, repeals any  enact-               ment  hitherto made or hereafter to  be  made,               then,  unless a different  intention  appears,               the repeal shall not:-               (c) affect any right, privilege, obligation or               liability acquired, accrued or incurred  under               any enactment so repealed;               (               e               )                ................................................... ......               "     The  objective of the provision is to ensure  protection of  any right or privilege acquired under the repealed  Act. The  only  exception to it is legislative intention  to  the contrary.  That is, the repealing Act may expressly  provide or  it  may impliedly provide against  continuance  of  such right, obligation or liability. The controversy thus narrows down  to  if the renewal of a permit under 1939  Act  was  a right.  In  other  words whether any right  accrued  to  the appellant  under  the repealed Act which could  be  said  to continue unaffected by the repeal of the Act. A permit could be  renewed under Section 58(2) of 1939 Act which  reads  as under:-               "S.58(2). A permit may be renewed on an appli-               cation  made and disposed of as if it were  an               application for a permit:                        Provided that the application for the               renewal of a permit shall be made-               (a) in the case of a stage carriage permit  or               a  public carrier’s permit, not less than  one               hundred and twenty days before the date of its               expiry, and               310               (b)  in  any other case, not less  than  sixty               days before the date of its expiry                        Provided  further that, other  condi-               tions being equal, an application for  renewal               shall  be given preference over  new  applica-               tions for permits."     Although  the Section uses the word ’may’ but read  with proviso it creates a preference in favour of a permit holder to claim renewal if other conditions were equal. A holder of

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a  permit  thus stands on a better footing.  The  preference created  by sub-section (2) of Section 58 for  consideration of  the  permit and its grant cannot be said to  be  a  mere incohate  right, or a right which does not exist in law.  It may  not  be a vested right or a fundamental  right  but  it certainly is civil right which could be enforced in a  court of  law and any authority acting in contravention of it  can be  forced to act in accordance with it. For instance, if  a Regional  Transport  Authority  under the  old  Act  refused renewal  even though the person applying for renewal was  in all  respects similar to other new applicants then it  could be corrected either by the tribunal or by way of writ  peti- tion  under Article 226. Therefore. It is a right  which  is enforceable  in law. This right accrued to appellant  as  he had already applied for renewal and his application had been notified.  The legal machinery was set in motion by him.  He theretore  had  a right to get his application  for  renewal processed  and  considered in accordance with 1939  Act.  It would be too artificial to say that it was not a right or it had  not accrued under 1939 Act. Therefore, in our  opinion, by  virtue  of Section 6(c) of the General Clauses  Act  the right of the appellant to get his application considered and decided in accordance with law was saved by sub-section  (4) of Section 217 of Motor Vehicles Act.     In  Cheran Transport Co. Ltd. v. Kanan Lorry  Service  & Anr, [1977] 2 SCR 389 at 390 It was held that the setting of a legal process in accordance with law for renewal of permit was  itself  a right. This principle was laid down  by  this Court  even when a scheme under Section 68(f) had been  pub- lished which debarred grant or renewal of any permit yet the court was of the opinion t.b, at since there was undue delay and  the applicant had done all that he could do in  law  he could  not be deprived of his right of consideration of  his application  for  renewal so long the scheme  was  not  pub- lished.  This was again approved in D. Nataraja Mudaliar  v. State  Transport  Authority Madras, [1979] 1  SCR  552.  The Court pointed out that a permit holder had an ordinary right of renewal. It is thus obvious that the High Court committed a  manifest error of law in throwing out the application  of renewal as the new Act had come into force. 311     Does the new Act indicate any intention to the contrary? No  express provision debarring renewal of permits,  applied for, under old Act could be pointed out. Reliance was placed on absence of preferential provision under Section 81 of the Act which provides for renewal of permits. It was urged that there  was a definite departure from the old  Act  therefore any right under the old Act, could not be continued to under the new Act. The submission does not appear to be sound. The new  Act  is a legislation on the same subject.  Section  81 specifically provides for renewal. It cuts across the  argu- ment  of intention to the contrary. Rather it is kept  alive by  Sub-section  (4) of Section 217. The scheme  of  renewal having  been  continued even under new Act mere  absence  of preference clause in Section 81 of the new Act could not  be construed as destroying the claim for renewal set in  motion under the old Act.     In  the result this appeal succeeds and is allowed.  The order  passed by the High Court is set aside. Parties  shall bear their own costs. T.N.A.                                                Appeal allowed. 312

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