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PETITIONER: MYSORE STATE ROAD TRANSPORT CORPORATION

       Vs.

RESPONDENT: MYSORE STATE TRANSPORT APPELLATE TRIBUNAL

DATE OF JUDGMENT08/08/1974

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN BEG, M. HAMEEDULLAH ALAGIRISWAMI, A.

CITATION:  1974 AIR 1940            1975 SCR  (1) 615  CITATOR INFO :  R          1984 SC 953  (2)  RF         1986 SC 319  (1,7,13)  R          1992 SC1888  (9)

ACT: Motor  Vehicles  Act,  1939,  Chapter  IVA--Scheme   private operators  from the notified area or route--Licence  to  any operator  whose  route traversed or overlapped any  part  or whole of notified route, if can be granted. Motor  Vehicles Act, 1939, Section 2  (28-A)--Definition  of "route"--"Route  and  highway, if  can  be  equated--Private operator,  whether  can be completely excluded  on  a  route which overlaps even a portion of notified route.

HEADNOTE: The Mysore State Road Transport Corporation operates on  the notified  route  under Ch.  IV of the  Motor  Vehicles  Act, 1939,  between Hiriyur and V.V. Sagar.  It objected  to  the renewal  of a permit to the third respondent for  the  route Hiriyur  to Chitradurga and back via V. V. Sagar,  Hosadurga and  Janakal on the ground that this renewal will  authorise an overlapping over three miles on the notified route.  Both the Regional Transport Authority, Chitradurga and the  State Transport  Authority,  Bangalore, negatived  the  objection. The  writ petition filed by the appellant was  dismissed  by the High Court of Karnataka in limine.  The application  for the  grant of a certificate of fitness under Art.  133(1)(c) was  also  rejected.   This  appeal  has  been  filed  after obtaining special leave against that dismissal order. It was contended for the appellant that the Bangalore scheme under  Ch.   IV-A of the Act prohibits  overlapping  of  the route  or routes of private operators on a part or whole  of the  notified  route and therefore, permit  to  operate  bus service  over  the notified route cannot be granted  to  the third respondent. Allowing the appeal, HELD   :-By   majority   (P.   Jaganmohan   Reddy   and   A. Alagiriswami,  JJ.)  Ch  IV of the  Act  in  specific  terms provides  a  complete  and,  and  in  the  circumstances   a satisfactory   machinery  for  reasonably   regulating   the exclusion  of all or some of the private operators from  the notified area or route. [618G]

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Y.  S.  Kondala Rao and Ors. v. Andhra  Pradesh  State  Road Transport Corporation and Ors., A.I.R. 1961 SC 82 relied on. Sasaghir Ahmed v. State of UP. [1955] 1 S.C.R. 707 held  not applicable to the scheme notified under Ch IV--A of the Act. Thus,  this  Court has consistently taken the view  that  if there  is  a prohibition to operate on a notified  route  or routes  no  licences can be granted to  any  operator  whose route  traversed  or overlapped any part or  whole  of  that notified   route.   But  in  Mysore  State  Road   Transport Corporation  v. The Mysore Appellate Tribunal ors.  (C.  As. Nos. 1755-1756 of 1968 etc. decided on 17-5-1974, this Court has taken a contrary view. [622H] S.  Abdul  Khader  Saheb v.  The  Mysore  Revenue  Appellate Tribunal,  Bangalore and Ors. [1973] 2 S.C.R.  925  Nilkanth Prasad  and Ors. v. State of Bihar, [1962] Supp. (1)  S.C.R. 728,  Abdul  Gaffoor v. State of Mysore,  [1955]  C.R.  707, kelani  Valley Motor Transit Co. Ltd.  v.  Colombo-Retnapura Omnibus  Co.  Ltd. [1946] A.C.  338,C.P.  C.-Motor  Service, Mysore  v.  The State of Mysore and  Another  [1962]Supp.(1) S.C.R.Tribunal,  [1965]1 S.C.R. 841 and  Mohanlal  Chunnilal Kothari  V. Tribovan Haribhai Tamboli, [1963] 2  S.C.R.  707 referred to. (ii) In any case under s. 2 (28A) inserted by s. 2 of Act 56 of  1969  the word "route" has been defined as meaning  "  a line  of  travel which specifies the highway  which  may  be traversed  by  a  motor vehicle  between  one  terminus  and another".   This definition correlates the notional line  of travel  between two termini with the portion of the  highway which has to be traversed on that route.. It is,  therefore, apparent  that  where  a private transport  owner  makes  an application  to  operate on a route which  overlaps  even  a portion  of the notified route, i.e. where the part  of  the highway to be used by the private transport owner  traverses on  a line on the Sarno highway on the notified route,  then that application has to be considered Only in the light of 616 the  scheme as notified.  If any conditions are placed  then those  conditions  have to be fulfilled and if  there  is  a total    prohibition   then   the   application   must    be rejected.[622B-C] Kelani  Valley Motor Transit Co. Ltd.  v.  Colombo-Ratnapura Omnibus Co. Ltd. [1946] A.C. 338, Y. J. Kodala Rao and  Ors. v.   Andhra  Pradesh State Road  Transport  Corporation  and Ors., AIR [1961] S.C. 82 and Nilkanth Prasad & Ors. v. State of Bihar [1962] Supp. (1) S.C.R. 728 referred. (iii)  In as much as Hiriyur to V.V. Sagar route granted  to the third respondent overlaps the notified route Chitradurga to Hiriyur, there can be no doubt that no permit or  renewal can  be  granted.  This is so even if  it  overlaps  however short the distance of the route.  There is no  justification for holding that the integrity of the notified scheme is not affected if the overlapping is under five miles or because a condition  has  been  stipulated  in  the  permit  that  the operators will not pick up or set down any passengers on the overlapped   route.  [625G;  626A-B]  HELD  :-Per   Beg   J. (dissenting) (i)  It  is not correct to say that the views  expressed  in Mysore  State Road Transport Corporation’s cases decided  on 17-5-1975 are not reconcilable with earlier decisions,  and, in  particular,  with Nilkanth Prasad’s case.  it  is  well- established that the principle of a case is to be determined by  taking  into  account the facts  treated  by  the  Judge deciding  a  case  as material and  his  decision  as  based thereon’.  The provisions of Bangalore scheme disclose  that there  were altogether 94 routes separately numbered.   Each

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route  is identified by its termini with a  separate  column for  intermediate  stations  of each route.   Out  of  these routes only 29 are placed in class (a) and therest    in class  (b).   In  class (a),  one  could  reasonably  assume complete exclusionof  private operators but not  in  class (b) where exclusion of privateoperators            from overlapping  parts  of routes was  expressly  exempted.  The Bench, in its decision of 17-5-1974 was unable to relate the facts of the cases before it to a prohibition of overlapping of  routes.   This also meant that it  could  not  determine whether  cases  before the Court relating to  the  Bangalore scheme fell within class (a) or class (b).  It also  pointed out that the Mysore Transport undertaking had the remedy for this uncertain state of affairs in its own hands if complete exclusion  of private operators from every overlapping  part of a notified route was also intended by the framers of  the scheme.  It could have gone before the State with a proposal to  get  the Bangalore scheme  appropriately  clarified  and modified  under  sec. 68-E of the Act.   Before  asking  the Court to infer complete exclusion, it was essential to  show that the overlapping part involved in a case falls at  least under  class(a)of  notified routes.  In as much as  all  the cases before the Bench were decided on a common question  of law,  it  is  very difficult to discover  any  flaw  in  the reasoning of the Division Bench decision, [629H, 632B-H] (ii) The reasons why the bench of this Court in its judgment dated  17-5-74, did not equate the term "route" with  "road" were  two fold : firstly, a different concept underlay  each of  the  three  schemes  before  the  Court  including   the Bangalore  scheme, and the relevant rules to be observed  in framing  such schemes; and, secondly. the  newly  introduced definition  constituted an amendment of or a departure  from the’  definition of ’route" found in Nilkanth Prasad’s  case (supra).   Obviously,  neither Nilkanth  Prasad’s  case  nor other  cases  are  applicable  authorities  either  on   any question   of  interpretation  of  the  provisions  of   the Bangalore  Scheme or on the question whether the law  giving the  meaning of "route".  There was no clear  definition  of the   term  "route".   Nilkanth  Prasad’s  case(supra)   had practically  identified  the  term route  with  a  road  and contained  an  observation that the "route"  vested  in  the Undertaking.  If this view was to be carried to its  logical conclusion,  the State Transport Undertaking  could  exclude even the user of a road by anyone for any purpose whatsoever provided  it  notified a route which ran over  it.   Such  a consequence  appeared  to be quite alarming.  In  any  case, until a scheme made it clear what was really excluded, Court had  to  be  careful not to exclude  operators  who  may  be serving an urgent public need without damaging the interests of  any  State Undertaking.  In the  definition  of  "route" introduced by the amending Act 56 of 1966, there is a  clear distinction  between  "the  line  of  travel"  between   two termini,  which a route is, and the highway which is  to  be traversed by a motor vehicle to which a "route" as a line of travel"  may  be  assigned.   The  new  definition  was  not intended  to  merely declare the law, which  is  a  judicial function, but to amend the law as declared by this Court  in Nilkanth Prasad’s case so as to bring it in line with public needs and conveniences.  It answered a "felt necessity".  In this  view of the matter it could not be urged  that  either Nilkanth Prasad’s case or 617 that  S. Abdul Khader Sahib’s case, which do not  deal  with the law as the Division Bench found laid down in the amended provision  would stand in the way of the view taken  in  the

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judgment of 17-5-1974. [634D-E; 637H; 638A-B; 639F; 640B] (iii)  If the concept of a route is understood to  mean  the mere overlapping of some portions of route, whether it falls in  class (a) or class (b) of the routes  mentioned  against heading  3  of the Bangalore Scheme, it would  not  debar  a private operator from plying on his own but different  route which is not notified at all.(642B)

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1801  of 1972. Appeal  by Special Leave from the Judgment and  Order  dated the  26th  November, 1968 of the Mysore High Court  in  Writ Petition No. 4068 of 1968. Shyamla Pappu and Vineet Kumar for the appellant, The Judgment of P. Jaganmohan Reddy and A, Alagiriswami,  J. was  delivered by Jaganmohan Reddy, J, M, H. Beg, J, gave  a dissenting Opinion. JAGANMOHAN   REDDY,  J.-The  Mysore  State  Road   Transport Corporation,   the   appellant   hereinafter   called   "the corporation" operates on the notified route under Ch.  IV of the Motor Vehicles Act, 1939-hereinafter referred to as "the act"-between  Hiriyur  and V.V. Sagar.  It objected  to  the renewal  of a permit to the third respondent C. Abdul  Rahim for  the  route  Hiriyur to Chitradurga and  back  via  V.V. Sagar, Hosadurga and Janakal on the ground that this renewal will  authorise  an  overlapping over  three  miles  on  the notified  route.   Both the  Regional  Transport  Authority, Chitradurga  and the State Transport  Authority,  Bangalore, negatived  the  objection.   It may be  mentioned  that  the ground  upon  which  the Appellate  Tribunal  dismissed  the appeal  against the order of renewal passed by the  Regional Transport Authority was that in some other cases the  Mysore Revenue Appellate Tribunal had held that the integrity of  a scheme  is not impaired if the distance of  the  overlapping portion  is about five miles and if a condition not to  pick up or set down passengers on the notified route is attached. On this reasoning the Tribunal thought there were no grounds to  interfere with the impugned order.  The  appellant  then filed  a  writ petition in what is now  the  Karnataka  High Court,  but  it  is was dismissed by  a  Division  Bench  in limine.   This  appeal  is by  special  leave  against  that dismissal order. It  appears  that the passenger transport  services  on  the routes appearing at Serial Nos.  I to 22, 24, 25, 26, 27 and 53 of the statement appended to the scheme approved under S. 68D(2)  of the Act, subject to the modifications set out  in the  notification dated June 7, 1960, included  "6  services between  any two places therein" and the transport  services were  ’to  be  run  and  operated  by  the  State  Transport undertaking  to the complete exclusion of other  operators." The  notification then sets out the various details  of  the said  approved  scheme known as the Bangalore  Scheme.   The question  at  issue is whether the  scheme  prohibits  over- lapping  of  the route or routes of private operators  on  a part or whole of the notified route.  If the route or routes overlap as aforesaid, then no permit can be granted to those private operators over the notified 618 routes  which  prohibit them to operate over  those  routes. This Proposition was laid down is several decisions of  this Court to which reference will be made hereafter. In  a recent judgment of this Court by one of  us(Beg,J.,and

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Chandrachud,  J., concurring with him in Mysore  State  Road Transport  Corporation  v.  The  Mysore  Revenue   Appellate Tribunal & Ors,(1) this Court has taken a contrary view.  No doubt  this case was one rendered in respect of  inter-State routes,  while  the instant case is one relating  to  inter- State  routes.  There, however seems to be no difference  in the  principal applicable to both the cases.  The  principle governing  intra-State  routes has been extended  to  inter- State  routes  vide  S. Abdul Khader  Saheb  v.  The  Mysore Revenue Appellate Tribunal, Bangalore Ors.(2) As the  recent decision  to which reference has been made seems to  take  a contrary  view to that taken by even larger Benches of  this Court, we find it necessary to reexamine the question  posed before us. Under s. 68C of the Act where a State Transport  Undertaking is  of  opinion  that  for  the  purposes  of  providing  an efficient,  adequate,  economical and  properly  coordinated road  transport  service,  it is  necessary  in  the  public interest  that  road transport services in  general  or  any particular class of such service in relation to any area  or route  or portion thereof should be run and operated by  the State  TransPort  Undertaking,  whether  to  the  exclusion, complete  or  partial, of other persons  or  otherwise,  the State  Transport  Undertaking may prepare  a  scheme  giving particulars  of  the nature of the services proposed  to  be rendered, the area or route proposed to be covered etc.  The scheme  so  framed  has  to  be  published  under  s.   68D, objections called for and the scheme as finally approved has to  be published under s. 68F with or without  modifications including any prohibitions on the area or route or parts  of an area or a route covered by the notified scheme.  There is now no doubt that any route or area either wholly or  partly can  be taken over by a State Undertaking under  any  scheme published, approved and notified under the provisions of Ch. IV-A  of the Act inserted by s. 62 of Act 100 of 1956.   The provisions of this Chapter confer a monopoly on the State in respect  of  transport services to the partial  or  complete exclusion of other persons.  In Y. J. Kondala Rao and others v.  Andhra  Pradesh  State Road  Transport  Corporation  and others,(3) a Constitution Bench of this Court held that  Ch. IV-A of the Act in specific terms provides a complete and in the  circumstances, a satisfactory machinery for  reasonably regulating  the  exclusion  of all or some  of  the  private operators  from the notified area or route.  Subba Rao,  J., as  he then was, speaking for the Court pointed out that  in Saghir Ahmed v. State of U.P.(4) the constitutional validity of s. 42(3) of the Act was questioned.  What Saghir  Ahmed’s case(4)  decided  was that the public were entitled  to  use public streets and roads which vest in the State as a matter of (1)C. As.  Nos. 1755-1756 of 1968 etc. decided on 17-5-1974. (2)[1973] 2 S.C.R. 925. (4)[1973] 2 S.C.R. 925. (3) A.I.R. [1961] S.  C. 82. 619 right.   The State as a trustee on behalf of the public  was entitled to impose all such limitations on the character and extent  of the user as may be requisite for  protecting  the rights of the public generally Within the limits imposed  by State  Regulations  any member of the public can  ply  motor vehicles  on  public roads and to that extent  he  can  also carry on business of transporting passengers with the aid of vehicle.  As infringement of the right which was  challenged in that case arose before the Constitution (First Amendment) Act,  1951,  the  impugned restriction was held  not  to  be

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justified  as  a  reasonable  restriction  imposed  in   the interests  of  the  general public.  As  a  result  of  the, Constitution (First Amendment) Act, 1951, Art. 19(6) enables the  State  to  carry on any trade  or  business  either  by itself,  or  by  a corporation owned or  controlled  by  the State, to the exclusion, complete or partial, of citizens or otherwise.    Saghir  Ahmed’s  case(supra)  would  have   no application  to schemes notified under Ch.  IV-A of the  Act because what has now to be seen is whether under that scheme private  operators  are  permitted to ply  vehicles  on  the notified  route or routes with or without  restrictions,  or totally prohibited from using those routes.  Whether a route is  inter-State  route or intra-State route, the,  power  to exclude is conferred by Ch.  IV-A. In Y. J. Konda a Rao’s case(supra) the question was  whether the  word "route" in s. 68C refers to a pre-existing  route. It  was contended that the words ’route or portion  thereof’ in  the  section  clearly indicates that  the  route  is  an existing route because a scheme cannot be framed in  respect of  a  portion of the proposed route.  This  contention  was negatived.  The Court observed at p. 93 :               "We  do not see any force in this  contention.               Unders.68C of the Act the scheme may be framed               in  respect of any area or route or a  portion               of any area or a portion of a route.  There is               no  inherent inconsistency between  an  "area"               and a "route".  The proposed route is also  an               area  limited  to  the  route  proposed.   The               scheme  may  as  well  propose  to  operate  a               transport  service in respect of a  new  route               from  point A to point B and that route  would               certainly be an area within the meaning of  s.               68C.    We,  therefore,  hold  that   s.   68C               certainly   empowers   the   State   Transport               Undertaking to propose a scheme to include new               routes". in  the case of Abdul Gafoor v. State of Mysore,(1)  another Constitution  Bench of this Court considered the  effect  of notifying  a  scheme  and it was stated there  that  when  a scheme  had been notified under Ch. IV-A of the Act  and  an application  was made for the grant of a permit on  a  route notified  under  the  scheme  by  a  private  operator,  the Regional Transport Authority had no option but to refuse the permit to the private operator and to grant the  application presented  by the State Transport Undertaking for a  permit. It  has  no right to ask for assistance from the  public  or existing  permit-holders of the transport  service  holders. Neither  the public in general nor the  permit-holders  have any part to play in the matter. the only duty it has (1) [1955] 1 S.C.R. 707. 620 to do is to examine the application and to see whether it is in  pursuance of an approved scheme and secondly whether  it has  been  made in the manner laid down in Ch.   IV-A.   If, therefore, the scheme prohibits private transport owners  to operate  on  the  notified  area or  route  or  any  portion thereof,  the  Regional Transport  Authority  cannot  either renew  the permit of such private owners or give  any  fresh permit  in  respect of a route which overlaps  the  notified route.   The question is whether the scheme read as a  whole prohibits  the private owners from operating on any  of  the notified routes. In  Nilkanth  Prasad  &  Ors. v.  State  of  Bihar  (1)  the appellants contended that as the notified route formed  part of a larger route operated by the private operator, the  two

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routes must be regarded as different routes, and the private operator  could not be prevented from running his  omnibuses on  that portion of his route, which was a different  route, although  notified.   This Court (Gajendragadkar  and  Hida- yatullah,  JJ.,) held that the appellants were not  entitled to  run  over  those portions of  their  routes  which  were notified as part of the scheme.  Those portions could not be said to be different routes but must be regarded as portions of  the  routes  of the private operators,  from  which  the private  operators stood excluded under s. 68F(2) (c)  (iii) of the Act.  It was observed in that case that as the  State Transport Undertaking had already been granted permits  over the  route "AB", the private operators i.e.  the  appellants were  not  entitled in law to renewal of their  permits  for routes    which   embraced   also   route’AB’.    In    such circumstances,  the Regional Transport Authority could  not, but  refuse  to  renew their permits.   It  was,  therefore, incompetent  to renew a permit over a route embracing  route ’AB’.  Reliance seems to have been placed upon a decision of the Privy Council in Keani Valley Motor Transit Co. Ltd.  v. Colombo-Ratnapura  Omnibus  Co. Ltd.(2).  That  decision  is hardly  of any relevance to the question at issue here.   In that  case  both  the  appellant  and  the  respondent  were applicants for exclusive road service licence for the  route from  Colombo  to Ratnapura.  There was another  route  from Panadura  to  Badu Hi through Colombo  and  Ratnapura.   The decision  in  that  case  depended upon  the  words  of  the Ordinance  ’such route or on a route substantially the  same as such route".  As pointed out by the Privy Council :               "It  appears  that Panadura  is  some  sixteen               miles along the coast to Colombo, thence  from               Colombo  to Ratnapura is some fifty miles  and               from Ratnapura to Badulla is a further  eighty               miles.   It  is obvious,  therefore  that  the               route  Panadura to Badulla is not the same  or               substantially  the  same route  as  the  route               Colombo to Ratnapura." On  the above fact situation Sir John Beaumount  giving  the opinion of the Board observed               "If "route" his the same meaning as " highway"               in  the Ordinance this argument  must  prevail               since  ’admittedly an Omnibus running  on  the               highway from Panadura to Badulla (1) [1962] Supp. (1) S.C.R. 728. (2) [1946] A.C. 338. 621               will  pass  over  the  whole  of  the  highway               between  Colombo and Ratnapura, but  in  their               ’Lordships’  opinion it is impossible  to  say               that   "route"  and  "highway"  in   the   two               ordinances  are  synonymous  terms.   In  both               ordinances....... the, two words are used, and               certainly not interchangeably.  A "highway" is               the  physical  track along  which  an  omnibus               runs,  whilst  a "   route"  appears  to their               Lordships to be an abstract conception of line               of  travel between one terminus  and  another,               and to be something distinct from the  highway               traversed...... there may be alternative roads               leading from one terminus to another but  that               does not make the route and highway the same." The  question  that arises in this case,  whether  when  one party  has a monopoly over a route a licence can be  granted to  any  other party over any part of that  route,  did  not arise  for  consideration  there  and  in  considering  that

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question  the distinction between "route" and  "highway"  is not at all relevant. In  Ni  kanth Prasad’s case(supra) the  distinction  between "route" and road" was relied upon by the appellants to  show that the notified route "AB" was a different route from  the routes  for  which  renewal of permits  was  demanded,  even though  route "AB" might have been a portion of  the  "road" traversed  by the omnibus of the appellants plying on  their "routes".  Hidayatullah, J., observed at P. 736 :               "The distinction made by the Privy Council  is               right ; but it was made with reference to  the               words  used  in  the  ordinances  there  under               consideration.   The  question  is  whether  a               similar distinction can be made in the context               of the Motor Vehicles Act." It seems to have been argued before the Court that the  word "route"  had  been used in contradistinction with  the  word "area"  and hence wherever the word "route" was used it  was used  in the sense of a  national line between  two  termini running  a stated course, and was used in  contradistinction to what may be conveyed by the word "area".  As we have seen in  Kondala Rao’s case, (supra) this argument was  negatived and so the Bench in Ni kanth Prasad’s case(supra)  following that  decision  negatived it.  To our mind the  decision  in Kelani  Valley Motor Transit Co. Ltd’s case(supra) lends  no assistance  to  the basic concept of a " route", a  line  of travel  between  two  points,  which  can  be  traversed  by different roads as was pointed out in that decision  itself. A  route between Delhi to Bombay can be traversed via  Agra, Gwalior, Indore, etc. or by some other road say via  Nagpur, but where the road of the route is specified in  scheme,’and private  operators are prohibited to traverse on that  route between the two termini, any overlapping of that route would transgress  the  provisions of the notified  route  and  the Regional   Transport   Authority  cannot   but   reject   an application  for  a  permit to  traverse  that  overlapping. Under the Ordinance which the Privy Council was  considering in  Kelani  Valley  Motor Transit Co.  Ltd’s  case(supra)  a preference  was  to  be given to  an  application  from  (a) company  or  partnership comprising the holders of  all  the licences  for the time being in force and (b) a  company  or partnership comprising 622 the  holders of the majority of the licences referred to  in above, authorising the use of omnibuses on such routes which established  the largest number of permits over  the  route. It  is  in  that  connection  that  the  word  "route"   was considered. In  any case under s. 2(28A) inserted by s. 2 of Act  56  of 1969 the word "route" has been defined as meaning "a line of travel which specifies the highway which may be traversed by a  motor  vehicle between one terminus and  another".   This definition  correlates the notional line of  travel  between two termini with the portion of the highway which has to  be traversed  on  that route. it is, therefore,  apparent  that where  a  private transport owner makes  an  application  to operate  on  a route, which overlaps even a portion  of  the notified route i.e. where the part of the highway to be used by  the private transport owner traverses on a line  on  the same  highway on the notified route, then  that  application has  to  be considered only in the light of  the  scheme  as notified.    If  any  conditions  are  placed   then   those conditions  have  to be fulfilled and if there  is  a  total prohibition then the application must be rejected. In  C.P.C. Motor Service, Mysore v. The State of Mysore  and

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Another  (1)  the prohibition was only against  the  private owners  operating  on  the  routes  which  lay  within   the District.   In  the circumstances this Court held  that  the exclusive operation of the routes within the District  meant that no other omnibus belonging to a private operator  could run on that sector.  The direction, therefore, clearly  said that  the route left to the private operators would be  open to  them  beyond the border of the District, but  they  were excluded from that portion of the route which lay within the District. again Hidayatullah, J., who delivered the judgment of the Court observed at p. 726.               "The  scheme of the Act in  s.  68F(2)(c)(iii)               also   shows  that  the   Regional   Transport               Authority,  in giving effect to  the  approved               scheme, may "curtail the area or route covered               by the permit in so far as such permit relates               to the notified area or notified route".  This               makes the route or area stand for the road  on               which  the omnibuses run or portions  Thereof,               and  in  view  of the  fact  that  the  scheme               reserved  all  the routes  within  the  Mysore               District to the State Transport Under  taking,               even  those routes which  were  inter-District               open   the  private  operators   would   stand               pretanto cut down to only that portion,  which               lies outside the Mysore District.  The result,               therefore, is that no distinction can be  made               between  the notification of a portion of  the               route  of the private operators  lying  within               the Mysore ]District and the notification of a                             different  route, in which the  portio n  within               the Mysore District is also included" This view also has been subsequently taken in Shri Roshanlal Goutam v. State of Uttar Pradesh and Others.(2) This Court has consistently taken the view that if there  is prohibition  to  operate on a notified route  or  routes  no licences can be granted (1) [1962] Supp. (1) S.C.R. 717. (2) [1965] 1 S.C.R. 841. 623 to any private operator whose route traversed or  overlapped any part or whole of that notified route.  The  intersection of  the  notified  acute may not, in  our  view,  amount  to traversing or overlapping the route because the  prohibition imposed  applies  to a whole or a part of the route  on  the highway  on  the same line of the  route.   An  intersection cannot  be said to be traversing the same line, as  it  cuts across it. In  the recent case Mysore State Road Transport  Corporation v.The  Mysore Revenue Appellate Tribunal, (supra)  the  view taken was that where two routes-(1) the route plied over  by private operators and (2) the route notified do not coincide at the points of termini it may not be enough to exclude the private inter-State owners by any necessary implication, and that  if the intention is to exclude such used of  operation that  intention  must be made clear in order  to  have  that effect.  Three schemes were considered in that case (1)  the Anakal Scheme; (2) the Gulbarga Scheme and (3) the Bangalore Scheme  and even though it was admitted that with regard  to the Bangalore Scheme the case  of the appellant  Corporation was  better  inasmuch  as  the words  used  there  are  "the complete  exclusion  of all other  operators  excluding  the intermediate  routes", nonetheless it was observed that  the exclusion  appears  to,  be  only  of  operators   providing services between the termini mentioned there and not  merely

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using   overlapping   portions  of   the   notified   routes incidentally, and that if the exclusion of those using  over lapping.portions of the surface of the highway common to two different routes was also really intended, they should  have been named in the appended statement and the number of their stage  carriages should have been given. As  no  explanation was  forthcoming for this commission, the interpretation  of the  three  schemes advanced  on behalf of the  inter  State operators was considered to be more reasonable. The judgment further observed :               "Whatever maybe said about the correctness  of               the   decision  of  this  Court  in   Nilkanth               Prasads’  case (supra) in the context  of  the               scheme before this Court for consideration  in               that  case  and the provisions of the  Act  as               they stood then,we do not think that the Ratio               Decidendi  of  that case is  applicable  here.               Upon the contents of the scheme before us  for               interpretation  we  find that  only  operators               named  therein  or those who seek  to  provide               "services"  upon the routes mentioned  in  the               schemes,   in  the  sense  that   they   carry               passengers   travelling  from  one  place   to                             another situated only upon the notifie d routes,               could  be  totally  excluded  from  using  the               highways  which the notified routes cover.  We               think that conditions were rightly imposed  by               the final Transport Appellate Authority on the               permits of inter State operators to bring  out               what it understood the scheme to mean in  each               case". With respect we do not doubt the correctness of the decision in  Nilkanth  Prasad’s  case  (supra)  which  followed   the decisions of different   Constitution Benches of this Court. Even  if  that decision has to be dissented from,  it  could only be done by a larger Bench of this Court.  On the  other hand  if  at all the definition of the word  "route"  in  s. 2(28A) lends further support to the principle enunciated 624 in  Nilkanth  Prasad’s  case (supra) The  scheme  before  us clearly notified the routes at Serial Nos.  1 to 22, 24, 25, 26,  27  and 53 including services between  the  two  places therein   were  to  be  operated  by  the  State   Transport Undertaking  to the complete exclusion of all  other  opera- tors.   In other words, the State Transport Undertaking  has been given exclusive right to run on those routes or any two places  between  those routes or between any two  places  on those  routes.  The routes specified in the  statement  show routes  Nos.  11 and 12 between Chitradurga to  Hiziyar  via Ivmangala and Chitradurga to Hiriyur via Mardihalli. The  proceedings before the Regional Transport Authority  of March 25, 1968 in respect of the application of M/s C. Abdul Rahim & Sons for renewal of their permit were considered  as additional Item No.23 C. Abdul Rahim & Sons had been granted permit  No.  176/58-59 and that permit was  being  evidently renewed from time to time on the route Hiriyur to Chiradurga and  back via V.V. Sagar, Hosadurga and Janakal.   The  last application  for  renewal  which gave rise  to  the  present controversy was evidently made on October 1, 1967 for  rene- wing  it for a period of five years.  This was published  on January II, 1968 and before the Regional Transport Authority C.  Abdul Rahim & Sons asked for renewal of their permit  as applied  for  by  them in the  interest  of  the  travelling public.   But  the Mysore State Road  Transport  Corporation

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objected on the ground that its services will be affected if the grant is renewed.  That objection was overruled and  the permit  was  directed to be renewed for a  period  of  three years from the ,date of the expiry of the permit. A revision petition was filed by Mysore State Road Transport Corporation  before  the Mysore  State  Transport  Appellate Tribunal  on the ground that the renewal of the  permit  was bad  as  the  route  proposed  for  renewal  overlapped  the notified  route  Hiriyur to V. V. Sagar over a  distance  of three  miles  coming  under  the  Bangalore  Scheme.    This contention   was   rejected  on  the  ground  that   in   B. Munivenkataswamy Naidu’s case (Civil Appeal No. 3203 of 1966 etc.)  the Mysore Revenue Appellate Tribunal had held  "that the integrity of a scheme is not impaired if the distance of the  overlapping  portion  is  about five  miles  and  if  a condition  not  to  pick up or set down  passengers  on  the notified route is attached." Throughout these proceedings it was no where contested  that the  route granted to M/s.  C. Abdul Rahim & Sons  does  not overlap  the  notified route.  If that was  the  case,  this question would not have arisen.  On the other hand,  because the route granted to C. Abdul Rahim & Sons overlapped  three miles  over  the notified route and since the  Tribunal  had held earlier that any overlapping within five miles does not impair  the  integrity of the scheme, the validity  of  this view is being agitated before us.  The High Court  dismissed the writ petition in limine, notwithstanding the  contention urged  in the writ petition by the appellant that  both  the Full  Bench as well as Division Bench of the Court had  held that the nationalised routes are to be operated by the State Transport-Undertaking to the complete exclusion of all other operators, if such a scheme excluded private operators  from operating on them. 625 A similar question has been dealt with by this Court in  the Mysore  State  Road Transport Corporation’s  case(supra)  to which  we  have referred earlier.  In that case,  the  facts have  not been stated and we are not in a position  to  know which  of the permits in cases before the Court had  expired and  which of them were renewed during the pendency of’  the hearing.   If the ),ears in which those appeals  were  filed are  taken  as  a guide, the permits in  all  those  appeals whether  renewed  for three years of five years  would  have expired  before the decision was rendered But that  was  not the  reason  given for dismissing those  appeals.   If  this reason  is valid, then what was decided in that  case  would not be the ratio of that case.  At any rate, the decision in that  case  would  suffer from the same  infirmity  which  a decision in this case may be considered to suffer.  But that is not how the decision in that case proceeded. On the other hand,  it was assumed in all those case that  the  appellant was contending that the permits granted were illegal because those routes overlapped the nationalised notified routes.The fact  that permits had expired did not preclude  this  Court from expounding the law on the basis that those permits were current.   ’Where  a  permit has been  granted  against  the objection of the State Transport Undertaking and the  matter is  agitated before this Court, there being no stay,  it  is difficult  to postulate that even after the expiry of  those permits they are not renewed.  In this very case, it can  be observed  that the permit is being renewed in favour  of  C. Abdul  Rahim & Sons after the expiry of each of the  periods from 1958 onwards.  In any case, it Is impermissible for  us suo  motu  to look into the interstices of the  case  or  to raise  objections  on assumptions which may or  may  not  be

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correct.   The respondents’ non-appearance after due  notice cannot  preclude  this  Court from  proceeding  on  admitted facts.   At any rate, no objection of any kind  which  might preclude determination of this question has been put to  the appellant’s  counsel  and it would be unfair if we  were  to deal  with them as if it is admitted.  In any case,  if  the permits which have expired have been renewed, which we  have no  doubt  must have been, then we can mould our  relief  to suit that changed situation.  See Mohatilal Chunilal Kothari v. Tribhovan an Haribhai Tramboli (1). The  "Bangalore Scheme" has been the subject matter  of  the Mysore  State Road Transport Corporation’s case  (supra)  as also  other cases.  Even the special leave petition has  set it  out.   Since  the decision  which  has  been  challenged proceeds  on  the basis that Hiriyur to V.  V.  Sagar  route granted to C. Abdul Rahim & Sons overlaps the notified route Chitradurga to Hiriyur. there can no doubt that no permit or renewal  can  be granted.  This is so even  if  it  overlaps short the distance of the route.  Whether a particular route granted to a private operator overlaps the notified route or not  cannot  be ascertained from the  notified  route.   The notified route may merely state the route to be operated  by the  State  Transport Undertaking and the total  of  partial prohibition on other operators from operating on. that route or  a portion thereof.  Where, however other  operators  are permitted  to operate on any portion. of that route, it  may also provide the terms and conditions under (1) [1963] 2 S.C.R. 707. 626 which  they can be permitted Beyond this, from the  notified scheme  it  cannot  be ascertained  whether  any  particular permit  overlaps the notified route or transgresses  any  of the conditions or prohibitions set out therein.  There is no justification  for  holding  that  the  intergrity  of   the notified scheme is not affected if the overlapping is  under five miles or because a condition has been stipulated in the permit  that the operators will not pick up or set down  any passengers on the overlapped route On  this view, we allow the appeal, set aside the  order  of the High Court and direct the Regional Transport a Authority to  comply with the requirements of the scheme as stated  by us in respect of any permit granted or in respect of renewal of  any such permit made in favour ,of the third  respondent during the pendency of this appeal BEG,  J  -The  appellant, the Mysore  State  Road  Transport Corporation, had filed a writ Petition-cum-affidavit in  the Mysore High Court in 1968 It reads : "I, B. P. Kulkarni Deputy General Manager, Planning  Central offices,  Mysore State Road Transport Corporation  Bangalore do on solemn affirmation state as follows : I am the Deputy General Manager (Planning) Central Office in the  Department  of  the  petitioner  and  having  read  the relevant  documents of the case state the following which  I believe to be true and correct Being  aggrieved  by the Judgment of  the  first  respondent ,dated 12-7-68 passed in revision petition No 41 of 1968  by which the resolution of the second respondent in subject  No 23  dated  25th March to renew the permit in favour  of  the third respondent for a period of three years which in effect permitting of overlapping the notified route of about  three miles  between  Hiriyur and V. V. Sagar Cross  in  Bangalore Scheme  is upheld, this writ petition is file under  Article 226  of the Constitution of India.  A certified copy of  the judgment  of the first respondent is filed marked ’A’ and  a certified copy of the resolution of the second respondent is

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filed  marked ’B’ the following are some of the  grounds  of objections amongst others                           GROUNDS 1.  The second respondent had no jurisdiction to  grant  the renewal of the permit which overlaps the notified route.  of the petitioner to a 627 distance of about three miles and hence the first respondent ought  to have quashed the said resolution and  allowed  the revision  petition filed by the petitioner against the  said resolution.  In refusing to do so, the first respondent  has acted  ultra  vires  of  his powers and  in  excess  of  his jurisdiction. 2. That the case of the H. C. Narayanappa v. State of Mysore and  others reported in A. 1. R. 1960 Supreme Court at  page 1072  has no bearing.  The Supreme Court was  concerned,  in that  case  with the contention that in the  Anekar  Scheme, only the routes are notified and not the area.  In this case the  renewal overlaps the notified routes of  the  Bangalore Scheme provides total exclusion of private operators. 3. That the Bangalore Scheme provides for total exclusion of the  private operators on the notified routes as decided  by this Hon’ble Court in W. P. 2579/66 on 6-8-68. 4.  That it is the duty of the respondents 1 arid 2 to  give effect to the notified scheme under section 68 F(2), of  the Indian  Motor Vehicles Act.  But by the impugned  order  the first  respondent  has  acted  in  violation  of  the   said mandatory provision of law. 5. I believe that there is no other alternate remedy for the petitioner  except to invoke the powers of the Hon’ble  High Court under Article 226 of the Constitution of India" No copy of the scheme involved was annexed to the  petition- cum-affidavit.  Some relevant facts may, however, be gleaned from  other  material on the meagre record.  A copy  of  the impugned  order  annexure ’A’ to the writ petition)  of  the Mysore   State   Transport  Tribunal  indicated   that   the petitioner had objected to the renewal of "Permit No. 176/58 for  the  route Hiriyur to Chitradurga and back  via  V.  V. Sagara, Mosadurga and Janakal" for a period of 3 years  from the  date of the expiry of the permit.  The short  order  of the   Tribunal  rejecting  the  appeal  of  the   petitioner appellant mentioned:               "  According to Shri Srinivasan, the order  of               renewal  is  bad  as the  route  proposed  for               renewal  overlaps the notified  route  between               Hiriyur and V. V. Sagar, a distance of 3 miles               coming under Bangalore Scheme." It  then stated that the reasons for the conclusion  reached by  the  Tribunal, that the overlapping portion of  3  miles does not impair the integrity of the scheme, are to be found in another judgment which was neither placed before the High Court  nor  before  us.   Again,  a  glance  at  a  copy  of proceedings  before  the  Regional  Transport  Authority  on record  (annexure’B’) shows that item No. 23 related  to  an application  for  a  renewal of permit No.  176158  for  the route  "Hiriyur  to Chitradurga and back via V.  V.  Sagara, Mosadurga,  and Janakal daily one trip for a period of  five years from 1-10-67 to 30-9-72". The renewal granted was for 3 years which meant that it  had examined on 30-9-70.  No attempt has been made to  challenge any  subsequent  renewal. we do not know when  the  original permit was given, but 628 number "176/58" indicates that it was probably taken out  in 1958.   Therefore, any relief we could now grant could  only

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be  declaratory  in  respect  of a  very  old  permit  whose validity  should  have been challenged long  ago.   It  was, presumably,  renewed earlier.  There must have been  similar objections earlier too on the strength of the provisions  of the Bangalore Scheme which came into force on 7-6-1960.   If so, these must have been failed.  An attack in 1968 upon the validity  of  such a permit which was  probably  issued  ten years earlier but said to have become invalid, so far as the overlapping  portion of the route is concerned, eight  years before challenging it by means of’ a writ petition would  be too belated to deserve even consideration. Even the date on which the Bangalore Scheme was notified was not  apparent from anything on record.  It was not given  in any order or other material either in our printed paper book or on the record of the Mysore High Court sent to this Court which  I have examined.  We have, therefore, to be  able  to proceed further at all to consider this case, to assume that the  purported  copy  of  the scheme,  giving  the  date  of notification  of  its  approval as 7-6-1960,  handed  in  by learned  counsel  for the appellant after  arguments,  is  a correct  copy  of the relevant notification in  an  official Gazette.  We could of course, take judicial notice of such a notification. As I shall indicate later, the date of the original grant or permit  and whether the respondent operator and others  like him  were plying stage carriages for hire upon a part  of  a notified route, and if so. on which particular route, at the time  of  the  notification of the  Bangalore  Scheme,  have considerable  importance  for  the  rights  of  the  parties determine by an interpretation of the scheme, in the context of  relevant  rules, which) seems to be not  only  open  but decisive on the language of the scheme quite apart from any, other  question.   Indeed, without necessary  averments  and findings of facts on these questions, it does not seem to me to  be possible to deal satisfactorily at all with the  case before  us.   To  add to our  difficulties,  the  respondent operator, the/ renewal of whose permit was questioned by the appellant, could not appear before the High Court because no notice of the Writ Petition, dismissed in limine, was set to him,  and, for some reason (possibly cause lie is no  longer interested in this particular permit after the expiry of the impugned  renewal  in  1970), the operator has  not  put  in appearance  in this Court.  The result is that we  have  not had the benefit of hearing any arguments for the respondents in this appeal before us by a special leave granted, as  the order of this Court on the special leave petition shows only because  it  had been granted in other  similar  cases  with which  this  case should have been connected.   Those  other cases  have been heard and decided on 17-5-1974 against  the appellant in Mysore State Road Transport Corporation v.  the Mysore Revenue Appellate Tribunal & Ors. (1). I  have  referred  to  the state of  the  record  before  us because, speaking for myself, I think it is imperative for a petitioner invoking the writ issuing jurisdiction of a  High Court, whoever (1)Civil Appeals Nos.1755-56 etc. etc. decided on 17-5-1974. 629 the  petitioner  may be, to set out  facts  with  sufficient particulars  to enable the High Court to exercise  its  writ issuing  prerogative powers correctly.  In the  case  before us, I find it very difficult to hold that the High Court had erred in rejecting the appellant’s writ petition in  limine. As it gave no reasons for the rejection we do not know  what they were.  There could on facts stated above, be more  than one  good ground for rejecting the writ petition in  limine.

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It  also rejected an application for grant of a  certificate under  Art. 133(1) (c) of fitness of the case for an  appeal to  this Court after merely expressing the opinion  that  it was  not a fit case for certification.  Thus, we are  faced, at  the outset, with the difficulty that, unless we were  to assume  certain state of facts giving rise to a question  of law, it would be difficult to find the question we could  or should consider and decide in this appeal by special  leave. We  have riot got before us any judgment in which  essential facts are elucidated.  The Writ-Petition-cum-affidavit,  set out in full above, is devoid of indispensable particulars. Learned  Counsel for the petitioner seemed to me  to  assume that the so called "Bangalore scheme" does exclude plying of stage carriages over overlapping portion of 3 miles  between Hiriyur  and  V. V. Sagar simply because it  is  a  notified route.  This is exactly what had to be shown to us from  the contents of the scheme, after applying correct principles of interpretation  to  it, and from facts  asserted  and  found showing which out of the large number of notified routes was being  used by the respondent operator.  Even in the  course of arguments learned Counsel for the appellant did not  show us on which route the strip between Hiriyur and V. V.  Sagar fell.   This  was essential because  plying  on  overlapping parts of each one of 94 notified routes is not by itself,  I find,  forbidden  by the relevant provisions of  the  scheme which I propose to consider. It  appears to be the submission of learned Counsel for  the appellant  that,  as  the  Bangalore  scheme  was   actually considered and interpreted earlier in the judgment of  17-5- 74 by a bench of this Court and certain general propositions of law were also discussed and enunciated there, we  should, simply for that reason, consider those very questions of law again on assumed facts and rectify what, it is submitted  on behalf  of the appellant, are errors in the opinion  of  the Bench  which  decided the cases mentioned above.   The  main argument  against  the views expressed in that  judgment  is that these are not reconcilable with earlier decisions’ and, in  particular,  with Nilkanth Prasad & Ors.  v.   State  of Bihar  (1)  case.   This contention rests on  a  failure  to appreciate  whit was really in dispute in earlier cases  and what was the ratio decidendi of Mysore State Road  Transport Corporation’s oases decided on 17-5-1974. I  think  Dr ’. A.  L. Goodhart has correctly  said,  in  an elaborate  essay  on "Determining the Ratio Decidendi  of  a case"  (See  :  "Jurisprudence  in  Action",  1953,   Essays published  by the Association of the Bar of New York).  that the principle of a case is determined by taking into account the  facts treated by the Judge deciding a case as  material and (1) [1962] 1 Suppl.  S.C.R. 729. 630 his   decision   "as  based  thereon".   Salmond,   in   his "Jurisprudence" (12th Ed. p. 181) has observed that  Courts, in their quest for "the rule which the Judge thought himself to be applying" tend to ignore this method in practice.   It was  stated there : "any such rule must be evaluated in  the light  of  facts considered by the Court  to  be  material". Therefore, we have to find out what was really the basis  of the  decision  of 17-5-1974 in Mysore State  Road  Transport Corporation’s  case (Supra) before attempting to deduce  any general principle or proposition of law from it which  could be  said  to be in conflict with earlier decisions  of  this Court  given  upon other schemes and in  a  different  legal setting. A perusal of the Judgment of 17-5-1974 in Mysore State  Road

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Transport Corporation’s cases reveals that it dealt with  22 appeals   by  special  leave  and  thirteen  special   leave petitions  involving  3 different schemes.  All  these  were connected and heard together because of a common question of law  said  to  be involved there.   This  Court  could  not, therefore,  go into the facts of each case  separately.   It framed  the common question of law an answer to which  could decide  all  the cases  before it.  It then found  that  the answer   could  not  be  given  without  reference  to   the provisions  of  and  an interpretation  of  each  particular scheme. The  judgment  starts by accepting as correct  the  position found  in  Nilkanth Prasad’s case (supra) and  in  S.  Abdul Khader v. Mysore Revenue Appellate Tribunal & Ors, (1)  that a scheme could exclude plying of state carriages on hire  by private operators completely on a route if that is what  was intended by it.  It then referred to the relevant provisions of law for framing of a scheme, including the rules notified in   the   Mysore  Gazette  dated  27-2-1958   laying   down specification of certain particulars as necessary conditions to  be  observed in framing schemes so as to make  it  clear which  private  operators  were excluded  either  wholly  or partially from plying upon any route or portion of a  route. These particulars were required by the rules framed so  that a  duty  imposed by Section 68C of the  Motor  Vehicles  Act (hereinafter  referred to as ’the Act’) may  be  discharged. It  was also difficult, without these particulars, to  apply Section  68F meant for the enforcement of the  scheme.   The cases  were decided on an interpretation of each scheme  the light of the rules.  The correctness of the decision of each case  by interpreting the provisions of each scheme,  stands apart from the meaning to be attributed to the term  "route" under the provisions of the Act. As  one of the schemes whose provisions were interpreted  by the judgment of 17-5-74 was the Bangalore Scheme now  before us, we have to look at the provisions of that scheme to test the  correctness of the decision on the assumption that  the term   "route",   for  the  purposes  of  this   aspect   of interpretation,  must  be  equated with a  highway  or  road covered  by  it.   Proceeding on this  assumption,  for  the purposes  of  this argument, we may  examine  the  Bangalore scheme. (1) [1973] 2 S.C.R. 925. 631 We  find  that sub-rule 3 and 4 of rule 1 are  repeated  the headings  of clauses 3 and 4 of the scheme, given in on  the left  hand  side with the relevant contents  of  the  scheme under the appropriate heading on the right hand side against each heading.  The relevant clauses read thus: "3. The route or routes (with their starting points, termini, intermediate stat- ions and route length)in which the State Road Trans- port Undertaking shall int- roduce its services to the exclusion of private operat- ors.                               (a) The passenger transport                                services on the routes                                appearing at S. Nos.  1 to 22                                and 24, 25, 26, 27, 28, 39                                and 53 of the statement                                appended including services                                between any two places

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                              therein should be run and                                operated by the State Trans                                port Undertaking to the com-                                plete exclusion of other                                operators;                                (b) Subject to (a) above, the                                State Transport Undertaking                                should operate services on                                the remaining routes                                appearing in the statement                                appended between the two                                specified terminals only to                                the complete exclusion of all                                other operators, excluding                                intermediate routes; 4.The number of existing stage At present, only the Mysore carriages on each route with the number of trips and the names of their operators.                                 At present only the Mysore                                 Government Road Transport                                 Department is operating                                 services on these routes,                                 and in the number of                                 existing stage carriages and                                 number of trips areas in                                 statement appended". In  the  preamble to the Banglore Scheme we  find  that  the scheme  submitted by the Mysore State Transport  Undertaking was approved under Section 68-D(2) of the Act by the Govt.of Mysore subject to the following modifications: "(a)  that  the passenger transport services on  the  routes appearing at S. Nos.  1 to 22 and 24,25,26,27, and 53 of the statement appended including services between any two places therein  should be run and operated by the  State  Transport Under taking to the complete exclusion of other operators; (b)  Subject to (a) above, the State  Transport  Undertaking should operate services on the remaining routes appearing in the  Statement appended between the two specified  terminals only,  to  the complete exclusion of  all  other  operators, excluding the intermediate routes; (c) the approved scheme shall come into force from the  date of its publication in the Mysore Gazette". 632 Neither  proposals originally made nor the  decisions  given thereon  apart  from  what is stated in  the  preamble  were placed  before us to throw light on the precise  meaning  of any  ambiguous parts of the contents under headings 3 and  4 of  the  scheme.   We also find that the headings  3  and  4 mechanically  repeat the provisions of sub-rules 3 and 4  of rule  1  of the Mysore rules.  The contents  of  the  scheme against   the  heading  similarly  repeat   faithfully   the provisions of the preamble except that route Nos. 28 and  39 are  found  added  in class (a).  It  is  quite  clear  that notified routes are divided into two classes.  In class (a). are  placed routes numbered 1 to 22 and 24 to 28 and 39  and 53, whereas the remaining routes are placed in class (b).  A glance at the purported copy of the scheme placed before  us shows  that  there  were  altogether  94  routes  separately numbered.   Each route is identified by its termini  with  a separate  column for intermediate stations of  each  routes. Out  of  these routes, only 29 are placed in  class  (a)  of complete exclusion of private operators from them, including

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services  between "any 2 places therein".  The remaining  65 notified  routes  obviously fall in class (b)  of  exclusion private   operators  from  services  "between  2   specified terminals  only."  In  other words,  plying  on  overlapping portions,  which did not constitute service "between  the  2 specified  terminals  only" of a notified  routes,  was  not excluded.   This  interpretation is  clarified  further  and reinforced  by  the  specific statement  that  the  complete exclusion of all other operators in class (b) was subject to the  exclusion of "intermediate routes" from  the  exclusion clause  itself.   This is the only distinction  between  the classes  and its only reasonably possibly  meaning.   Other- wise, there was no point in dividing the 94 routes into  two classes. In  cases falling within class (a) of the  Bangalore  Scheme one  could perhaps reasonably assume complete  exclusion  of private  operators but not in class (b) where  exclusion  of private  operators  from  overlapping parts  of  routes  was expressly exempted.  Indeed, this meaning becomes even  more reasonable  and  evident if the term "route"  is  identified with   a   "highway"  or  a  "road".   Plying   between   an "intermediate" portion of a specified route as a part of the highways necessarily implies running on overlapping portions of  highways.  The Bench, in its decision of 17-5-1974,  was unable  to  relate the facts of the cases before it  to  the prohibition of overlapping of routes.  This also meant  that it  could  not  determine whether  cases  before  the  Court relating  to the Bangalore scheme fell within class  (a)  or class  (b).   It  pointed  out  that  the  Mysore  Transport Undertaking  had  the  remedy for this  uncertain  state  of affairs  in its own hands if complete exclusion  of  private operators  from every overlapping part of a  notified  route was also intended by the framers of the scheme.  It could go before the State Govt. with a proposal to get the  Bangalore scheme  appropriately clarified and modified  under  Section 68-E  of the Act.  Instead of doing that, the  Mysore  State Road  Transport Corporation had preferred to  litigate  over this issue from 1968 ownwards in an attempt to exclude other operators who may have been operating even before the scheme came  into  force  but  who were  not  treated  as  excluded operators by the scheme itself as they only used overlapping parts  of  certain  routes.  It was essential  to  show  us, before asking us to infer a complete exclusion that,-even on the 633 assumption  made above, the overlapping part involved  in  a case falls at least under class (a) of notified routes. Speaking for myself, I am unable to discover any flaw in the reasoning of the Division Bench decision of 17-5-74 of  this Court.   It did not deal with such questions as the  failure of  the  Mysore State Road Transport Corporation  either  to object  to  earlier renewals or to  challenge  any  possible subsequent  renewals  in cases where  renewals  had  expired during  the pendency of appeals in this Court because  doing that would have meant burdening the judgment with  questions relating to individual cases.  It was not necessary to do so for  the decision of all the cases on a common  question  of law. The  Bangalore  scheme was found to be too ambiguous  to  be capable  of implying a prohibition in all the  cases  before the  Court  which were set up with no  greater  clarity  and definiteness  than the case now before us has been  set  up. Indeed, I suspect that the meagre statement of facts in  the Writ Petition of the case before us and in other cases which were decided on 17-5-74 and the failure of the appellant  to

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base  its case upon a clear assertion that it fell  squarely within  the  four  corners  of class  (a)  of  the  excluded operators may be due to the fact that the case actually fell in class (b).  I do not find it possible, en the  statements made  in  the  petition before us or in the  orders  of  the Transport  Authorities, to correlate any particular part  of the  route  of the respondent with a  route  falling  within class (a) of the 29 routes dealt with in class 3 (a) of  the scheme.  A similar view underlay the decision of 17-5-74  by a Bench of this Court.  It said               "Lastly, as regards the Bangalore scheme,  the               case  of  the appellant Corporation  may  seem               better  inasmuch as the words used  there  are               :’the   complete   exclusion  of   all   other               operators excluding the intermediate  routes’.               But even here,the exclusion appears to be only               of  operators providing services  between  the               termini  mentioned there and not merely  using               overlapping  portions of the  notified  routes               incidentally". The  reasons  for  this  view  are  now  given  by  me  more elaborately and explicitly and with special reference to the assertions made by the appellant in the case before us. I  will  now turn to the question whether the concept  of  a "route", which was held to be correct, by the Division Bench in  the  judgment  dated 17-5-1974, in the  context  of  the schemes before it and the change of law after the  amendment of the Motor Vehicles Act by the Act No. 56 of 1966,  adding a  definition  of "route" was in conflict with  any  of  the earlier decisions. inasmuch as neither the provisions of the schemes  interpreted  by the judgment of 17-5-1974  nor  the amended law was before this Court on any earlier occasion, I find it very difficult to accept the view that we are  still bound by a declaration of law by this Court on other schemes or on law prior to the amendment relied upon in the judgment of 17-5-1974.  Indeed, I think that the bench of this  Court respectfully followed the 634 rule of interpretation deducible from Nilkanth Prasad’s case (supra)  :  that  the meaning to be  assigned  to  the  term "route"  depends  upon the relevant provisions  of  law  for interpretation  before the Court.  It has been contended  on behalf  of  the appellant itself that each  approved  scheme constitutes  law.   Accepting  this  submission,  which   is supported by pronouncements of this Court, an interpretation of  each  separate scheme would be an  interpretation  of  a different  law to be given in the context of the  provisions of that scheme. Hidayatullah  J., in Nilkanth Prasad’s case (supra) did  not consider the concept of a "route" found in the Kelani Valley Motor  Transit Co.  V. Colombo Ratnapura Omnibus Co.(1).  to be incorrect.  The learned Judge said (at p. 736) :               "The distinction made by the Privy Council  is               right;  but it was made with reference to  the               words  used  in  the  Ordinances  there  under               consideration". The  Division Bench of this Court in its judgment  of  17-5- 1974 also found this meaning of a "route" to be correct in a context  different from the one which was before  the  Court when it decided Nilkanth Prasad’s case (supra).  The reasons why  the  bench of this Court, in its judgment  dated  17-5- 1974, did not equate the term "route" with " road" were  two fold  : firstly, a different concept under-lay each  of  the three  schemes  before the Court,  including  the  Bangalore scheme,  and  the relevant rules to be observed  in  framing

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such schemes; and, secondly, the newly introduced definition constituted  an  amendment  of  or  a  departure  from   the definition  of  "route"  found  in  Nilkanth  Prasad’s  case (supra).   Obviously,  neither Nilkanth  Prasad’s  case  nor other  cases  are  applicable  authorities  either  on   any question   of  interpretation  of  the  provisions  of   the Bangalore  Scheme or on the question whether the law  giving the  meaning  of  "route"  had  changed  in  the   direction indicated by the judgment of 17-5-1974. I  may now elaborate the two sets of reasons underlying  the definition  of the term "route" adopted in the  judgment  of 17-5-1974,  although,  as I have explained  earlier,  a  new definition of the term "route" was not absolutely  necessary for  the  decision  of 17-5-1974 or of the  case  before  us because  of the ambiguities resulting from the  very  meagre assertions, devoid of particulars, with which the  appellant petitioner  went to the High Court.  Their scantiness  could perhaps be only matched by the paucity of the provisions  of the Bangalore scheme itself. I  will first take up the second of the two sets of  reasons given  above for accepting a new definition of  "route",  as that seems to me to raise the narrow question into which the main  difference between the views of my  learned  brethren, for  which  I have the greatest respect, and  mine  resolves itself.  That question is : Did the addition of a definition of  "route" by Section 2(28A) of the Motor Vehicles  Act  in 1966 signify a departure from or change in any definition of it  by  this Court deducible from the judgment  in  Nilkanth Prasad’s case (supra) ? (1) [1946] A.C. 338. 635 The  rules to be employed in answering such a question  were laid  down  along  ago in Heydon’s case(1)  where,  in  what appears  to us the rather quaint 16th century  language,  it was said :               " that for the sure and true interpretation of               all statutes ’four things are to be  discerned               and considered : 1st, what was the Common  Law               before  the making of the Act ? 2nd, what  was               the  mischief and defect for which the  Common               Law  did  not provide ? 3rd, what  remedy  the               Parliament hath resolved and appointed to cure               the  disease of the Commonwealth ;  and,  4th,               the  true reason of the remedy.  And then  the               office  of  all  the Judges is  to  make  such               construction  as shall suppress  the  mischief               and    advance   the    remedy................               according to the true intent of the makers  of               the Act". This  Court,  which  has  repeatedly  applied  these  rules, pointed out, in Bengal Immunity Co. v. The State of Bihar  & Ors.,(2) that the method of interpretation found in what  is known as the "Mischief Rule" is "as necessary now as it  was when Lord Coke reported Heydon’s case".  Expressed in modern terms it only means that the purpose and significance of  an enactment  is to be found after exploring the  short-comings or  the defects which were sought to be removed by means  of it by Parliament which does not legislate in vain or without some  reason  or need for it.  And, as  all  law,  including enacted  law, is a response to a need which has  arisen,  we have  to examine the situation or the context in  which  the need  for an amendment in it arose by an addition in  it  or alteration  of it in order to appreciate its  true  meaning. Law,  after all, is not static.  It changes in  response  to the  growing  needs  it has to serve so as  to  advance  the

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public good. Ours is a developing country in which Motor Transport serves an  essential need for locomotion by members of  the  public who,  as  workers, as businessmen, or  as  persons  pursuing their  various  avocations  in  life  must  be   transported conveniently  and rapidly from one place to another if  they are to efficient in work and add to national wealth.  It  is obvious  that the expenditure and Organisation  involved  in maintaining  an  efficient and comfortable  motor  transport service extending over long distances is so great that  only the State can meet this public need satisfactorily.  It  was for  this  reason  that  the  amending  Act  100  of   1956, introduced  the  provisions of Chapter IV-A into  the  Motor Vehicles Act so that (See Section 68C) schemes may be framed for   running   motor  transport  services  by   State   run undertakings  for  the  purpose  of  providing   "efficient, adequate,   economical,   and  properly   coordinated   road transport  services", when it is found to be .,necessary  in the public interest that road transport services in  general or  any particular class of such service in relation to  any area or route or portion thereof should be run and  operated by   the  State  Transport  Undertaking,  whether   to   the exclusion,   complete  or  partial,  of  other  persons   or otherwise".  It is noticeable that the power given to  frame a  scheme which has the force of law was to be exercised  in such  a  way  I as to give all  persons  affected  including members of the public, for whose benefit a scheme was to  be framed, due opportunity of being heard (1) 1584 (3) Co. Rep. 8. (2) [1955] 2 S.C.R. 603 633. 636 so that there may be a proper adjustment between the  amount of exclusion needed for maintaining an efficient State owned motor  transport  service  and  the  needs  of  the  public, particularly  on  smaller routes, which  could,  in  certain cases  perhaps be better served by private operators.   Such Private  operators  may  be more aware  more  watchful,  and better able to meet the needs of the public of a  particular locality.   Hence, consistently with our mixed economy,  the provision  made  was not for a total  exclusion  of  private operators, automatically by the mere fact of a  notification of  a  route  or  area, but, for  framing  of  schemes  with necessary particulars indicating the extent to which private operators were to be excluded or still allowed to operate in any  manner  on notified routes.  The schemes  could  be  of either total or partial exclusion of private operators  from routes or areas. Another  noticeable feature of the law, as found in  Section 68C of the Act, is that it confers power to exclude  private operators only from proposed "services" of particular  areas or routes.  Each scheme was meant to contain "particulars of the nature of the services proposed to be rendered, the area or  route proposed to be covered and such other  particulars respecting thereto as may be prescribed".  The whole  object of  these provisions was to make a scheme elastic enough  to be ,capable of serving public needs by such combinations  or mutations  of State Transport as well as  private  transport services as may be shown to best subserve public convenience and interests, although, where this was found necessary  for satisfying  public  needs,  complete  exclusion  of  private operators  from  certain  routes  and  areas  is   possible. Furthermore,  the framers of Section 68C spoke of "the  area or  route  proposed to be covered" by services  but  avoided using  the  word "road".  It seemed,  therefore,  that  they intended  to distinguish the right of the public to use  the

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highways which are, as is well settled in law, dedicated  to the  use  of members of the public in various  ways  (See  : Himat  Lal  K. Shah v. Commissioner of Police,  Ahmedabad  & Anr;(1)  Municipal Board Manglaur V. Mahadeoji Maharaj;  (2) and  Sagir  Ahmed  v. State of U.P.)(3) from  the  right  to provide  motor transport services to passengers  paying  for these  services on specified routes or in particular  areas. The  right to provide these services could be vested  wholly or  partially  in State undertakings.  It is  only  in  this sense  that  a  particular cc route" of  a  stage  carriage, representing  a  right  to  provide  a  particular   service exclusively, could "vest" in a State undertaking It  is also noticeable that, before the addition of  Section 2(28A) of the Act by the Amendment Act 56 of 1966, there was no definition of the term "route".  The result was that this Court had indicated its own definition in Nilkanth  Prasad’s case  (supra).   This case related to a route from  Gaya  to Khijirsarai on which, according to the statement of facts in the  case,  the  Rajya Transport,  Bihar  "was  exlclusively allowed to operate".  No question of exclusion of a  private operator  from  merely an overlapping part of  a  route  was involved  there.  It appeared that there  private  operators claimed a right to ply for hire over the whole (1)  A.I.R. 1973 S.C. 87, 103. (3)  [1955] 1 S.C.R.707. (2)   [1965] 2 S.C.R. 242. 637 of  a notified route on the ground that it was  included  in their  longer  route.  In this context,  this  Court,  after holding  the  definition  of ’route"  given  by.  the  Privy Council, in Kelani Valley MotOr Transit Co.’s case  (supra), to be correct, in its own context, said (at p. 737-738)               "The   distinction  between  "route"  as   the               notional  line  and ,,road"  as  the  physical               track disappears in the working of Chap.   IV-               A,  because  you  cannot  curtail  the   route               without curtailing a portion of the road,  and               the  ruling  of  the Court to  which  we  have               referred,  would  also show that even  if  the               route  was different, the area at least  would               be  the  same.   The ruling  of  the  Judicial               Committee  cannot  be made applicable  to  the               Motor Vehicles Act, particularly Chap.   IV-A,               where  the  intention is  to  exclude  private               operators completely from running over certain               sectors  Or routes vested in  State  Transport               Undertakings.  In our opinion, therefore,  the               appellants were rightly held to be disentitled               to  run  over those portions of  their  routes               which were notified as part of the scheme." It  could be and was, therefore, urged before us  that  this amounted  to really identifying the term route with a  road. In addition, there was the observation that certain  sectors or routes "vested in State Transport Undertakings". In Nilkanth Prasad’s case (supra), this Court relied upon  a passage  from  Kondala  Rao v.  Andhra  Pradesh  State  Road Transport Corporation, (1) which did not really deal with  a definition  of a route but only pointed out that  there  was "no inherent inconsistency between an area and a route"  and that  "the  proposed route is also an area  limited  to  the route".  In Konda Rao’s case (supra) this Court said :               "The  scheme may as well propose to operate  a               transport  service in respect of a  new  route               from  point A to point B and that route  would               certainly be an area within the meaning of  s.

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             68C". But,  in that case, this Court did not go so far as  to  say that  the "route", viewed as the road itself over  which  it ran, vested in the State Undertaking.  On the other hand, it spoke of the State’s power to exclude from "service" only of an area or a route.  It said of Section 68C (at p. 87) :               "The section enables the State to take over  a               particular  class of a service, say,  the  bus               service,  and  exclude  all  or  some  of  the               persons  doing  business  in  that  class   of               service". Classes of "service" could be most conveniently indicated by "service"  between  certain specified termini and  at  given times.  If the termini or timings were different a "service" may  be  different even if it meant an overlapping  part  of service between other termini.               The result of this state of law was that there               was  no clear definition of the term  "route".               Nilkanth Prasad’s case (supra) had practically (1) AIR 1961 S.C. 82. 638 identified  the  term  route with a road  and  contained  an observation that the "route" vested in the Undertaking.   If this  view was to be carried to its logical conclusion,  the State Transport Undertaking could exclude even the user of a road  by  anyone  for any  purpose  whatsoever  provided  it notified  a  route which ran over it.   Such  a  consequence appeared to be quite alarming.  In any case, until a  scheme made  it clear what was really excluded, a Court had  to  be careful  not  to  exclude operators who may  be  serving  an urgent  public  need without damaging the interests  of  any State Undertaking. While this was the state of our law before the definition of the  term  "route"  by Act 56 of  1966,  there  was  another definition  of this term contained in Kelani  Motor  Transit Co.’s case (supra).  It was held there with reference to the provisions  of certain ordinances from Colombo; (at p.  345- 346) :               "........  in  their Lordships opinion  it  is               impossible to say that route" and "highway" in               the  two Ordinances are synonymous terms.   In               both Ordinances, particularly in S. 54 of  the               original  Ordinance and s. 7 of  the  amending               Ordinance,   the  two  words  are  used,   and               certainly not interchangeable.  A "highway" is               the  physical  track along  which  an  omnibus               runs,  whilst  a  " route"  appears  to  their               Lordships  to be an abstract conception  of  a               line  of  travel  between  one  terminus   and               another, and to be something distinct from the               highway traversed". A  perusal  of the judgment of the Privy Council  in  Kelani Valley  Motor  Transit  Co.’ s case (supra)  shows  that  in arriving at the conclusion set out above, it thought that it was very significant : "that, every applicant for a  licence for an omnibus shall specify in his application  particulars of the route or routes on which it is proposed to provide  a "service"   under  the  licence";  that,   every   licencing authority  had,  under  Section 54,  to  "specify  on  every licence for an omnibus issued by that authority......               (a) the approved route or routes on which that               omnibus  may  Ply or stand for hire,  and  the               number,  if any, assigned to each route  under               S. 57 ;               (b) the two places which shall be the  termini

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             of each such route and               (c) the highway or the several highways to  be               followed by the omnibus in proceeding from one               terminus to the other" ; that,  the Commissioner had to "specify in the  licence  the route  or routes on which the service is to be  provided  in the  licence".  It is clear that these features, which  were present  under  the  Ordinances  interpreted  by  the  Privy Council,  are  also present under our  Motor  Vehicles  Act. Moreover, it is very difficult to conceive of anyone getting a  monopoly  to  use  certain roads  merely  because  of  an exclusive right to ply over a particular route given for the purpose  of  providing  particular  services  between  given termini.  Some overlapping of routes, 639 particularly  in  a  large city, whether  it  is  Delhi,  or London, or New York or Colombo, is quite unavoidable where a number  of  services between different termini  have  to  be provided.   The routes are invariably numbered as  they  are under  the Bangalore Scheme.  This fact was also  considered significant by the Privy Council in reaching its  conclusion which appears to conform to a general practice world over to meet   practical   requirements  and  exigencies.    It   is particularly useful in framing schemes which have to specify what  particular  services  are  to  be  provided  by  State agencies  and which by other operators., Particular  routes, irrespective  of overlapping over their portions,  could  be separately numbered and indicated for particular classes  of service.  This seems quite unavoidable if the convenience of the public using the highways and elasticity in the  framing of   schemes   are   to   be   governing   factors.    These considerations  are meant to be decisive both under  Section 47  of the Act as well as under Section 68C of Chapter  IV-A of the Act. One  is,  therefore, driven irresistibly to  the  conclusion that  an  amendment  in  the  definition  of  a  route   was considered necessary by Act 56 of 1966 by Parliament as  the concept  of  "route"  contained  in  Nikanth  Prasad’s  case (supra)  was  highly  inconvenient  and  unsatisfactory   in framing schemes of transport services for the benefit of the public for whose use the highways are dedicated, and that it preferred the definition of a route as an abstract "line  of travel" between two termini.  In fact, this is exactly  what the definition said when it laid down in Section 2(28A) :               "  route"  means  a  line  of  ’travel   which               specifies  the highway which may be  traversed               by  a motor vehicle between one  terminus  and               another". In the definition set out above, introduced by the  Amending Act  56 of 1966, there is a clear distinction  between  "the line  of travel"between two termini, which a route  is,  and the  highway which is to be traversed by a motor vehicle  to which a "route", as a "line of travel", may be assigned.  To identify a route as a line of travel with the actual road on which  vehicles traverse would, it appears to me, amount  to altering  the  definition set out above into : "a  route  is that  part  of  the highway on which  a  motor  vehicle  may travel".  If that was the real meaning there was no point in introducing  the  concept of a "line of  travel",  which  is abstract, and mentioning the highway as the concrete surface of  the  earth over which a vehicle traverses or  the  route lies.  What is super-imposed as a "line of travel" can  only be conceived of as an abstraction or a separable essence. It  seems to me that there is nothing in the working of  the provisions  of Chapter IV-A of the Act which conflicts  with

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the  new  definition lying down that a route is "a  line  of travel"  as  an abstract concept.  Section 68F of  the  Act, which enables the curtailment of a route, does not appear to me  to have anything to do with the concept of a route.   It merely provides for the consequences of the enforcement of a scheme which may involve the curtailment of a route or  area so as to fulfil 640 the requirements of the scheme, whatever may be the  meaning of "route".  The curtailment of a route does not imply  that the  route  is to be necessarily equated with a  highway  or that its curtailment eliminates overlapping of routes. For  all  the  reasons given above, I  think  that  the  new definition of ,a route introduced by Act 56 of 1966 was  not intended  to  merely declare the law. which  is  a  judicial function. but to amend the law as ,declared by this Court in Nilkanth  Prasad’s  case (supra) so as to bring it  in  line with  public  needs and convenience.  It  answered  a  "felt necessity".   On this view of the matter, I think  it  could not  be urged that either Nilkanth Prasad’s case (supra)  or that S. Abdul Khader Saheb’s case (supra), which do not deal with  the  law  as  we find it  laid  down  in  the  amended provision  would stand in the way of the view taken  in  the judgment of 17-5-1974. I  may  now briefly dispose of the first of the two  set  of reasons given for adopting what may be called the "abstract" definition of "route" discussed above-that the provisions of the  Bangalore  scheme fit in with such  a  definition.   In support  of this approach, as already mentioned  above,  one could  cite  Nilkanth Prasad’s case (supra)  itself  because that decision had proceeded on the view that the  definition of  a  route  must  vary with the  legal  provisions  to  be interpreted.   If each scheme embodies a set of rules  which have the force of law it is possible for the term "route" to bear  a different meaning under each separate scheme  unless there  is Some statutory provision which prevents this  from being  done.   I  have  already  considered  the   statutory provision  which has, in my opinion, introduced an  abstract concept of a "route" even though it is linked with a highway so  that  the  two routes may be different,  even  when  the termini  are identical, if the highway specified and  to  be traversed   are   different.   The  specification   of   the termini .as well as of intermediate stations is intended  to indicate  only the direction to be followed or the high  way to  be traversed.  It does not mean that the route is to  be identified  with a highway to be traversed taking  a  route. This  view seems to me to be borne out by the provisions  of the  rules  3  and 4 framing the schemes  and  also  by  the contents of the Bangalore scheme. in  reaching  a  conclusion about the meaning  of  the  term "route" to be found in the Bangalore scheme, the judgment of 17-5-1974  shows  that  this  Court  accepted  the  argument advanced  on  behalf of the  private  inter-State  operators that. the failure to specify their names in entries  against heading  4, as required by Rule 4, indicated that they  were not considered by the framers of the scheme to be plying  on any of the notified routes at.all. In other words,  although they were plying on overlapping portions of notified routes, yet,  the scheme treated them as persons, not plying on  the notified  routes.   The entry actually was that  only  State owned  vehicles were plying on notified routes.  This  meant that the concept of the route in the minds of the framers of the  scheme  was  an abstract one  of  service  between  two termini  only  with  ,certain  given  intermediate  stations indicating the directions to be taken

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641 by  the line of travel and that they did not  Consider  mere user of overlapping portions of routes by private operators, who were actually already there, as provision of services on those routes. To counter this argument in the cases decided on  17-5-1974, as in the case before us, learned Counsel for the  appellant Corporation tries to contend that private operators had been introduced  only  after the scheme had come  into  force  in 1960.   This assertion is based on no  evidence  whatsoever. On  the  other hand all the probabilities of  the  case  are against the correctness of such a sweeping claim.  The whole scheme governs according to the copy of it handed in by  the learned  Counsel  of  the Appellant  Corporation  94  routes including  a  very  large number  of  routes  starting  from Bangalore  and  others  from Mysore City.   It  seems  quite inconceivable  that in 1960 no private state carriages  were providing any service on any of the roads covered by  ninety four routes.  The only rational explanation of the statement that  only State transport services ran on these  routes  in 1960  is  that routes were identified by their  termini  and intermediate stations.  The-highways were to be specified to distinguish them from and not to identify them with  routes. The two concepts were different. Furthermore  route  No. 39 is mentioned  merely  as  "Mysore City,  Service".   In  other  words it  is  described  as  a "service"  which is air abstract concept. in column 3  meant or  intermediate  stations in the statement annexed  to  the scheme  occur the words : "all routes in the city of  Mysore and  its  suburbs".   Now "Mysore City  Service"  could  not conceivably be any highway.  The entries in column 3 of  the statement  are not of intermediate stations but "all  routes in  the city of Mysore and its suburbs".  If  the  intention was  that all the roads in the city of Mysore were  reserved exclusively for the use of’ vehicles of the State  Transport Undertaking it would completely paralyse the business of all private operators who could not enter Mysore City at all.  I do  not  think  that we could  adopt  such  an  unreasonable interpretation  of  the Bangalore scheme.  If that  was  the intention  of its framers they should have clearly said  so. in that case the constitutional validity of such a provision could be considered because the. constitution postulates the exercise   of   all  power  including   legislative   power, reasonably  and for satisfying the purposes for which it  is meant.    The  restriction  or  deprivation  could  not   be excessive or more than what was needed to serve the  purpose for  which  it was to be, imposed.  Section 68C of  the  Act restricts  schemes to be framed under it to  purposes  given there.  A scheme of complete exclusion of private  operators from  any number of "routes, as defined by Sec.  2(28A)  and explained  above,  could satisfy these  tests.   But,  their complete  exclusion  from the user of certain  highways  may violate Article 19(1) (g) of the Constitution in addition to failing outside the purview of’ Section 68C of the Act.   It is a well established rule of construction that, even  where two  alternative interpretations are equally open,  the  one which  avoids  an invalidity should prevail.  This  mode  of construction  is  only  an application of  the  principle  : utres magis valeat quam pereat, 642 It  therefore,appears to me that the difficulties  mentioned above could only be overcome by accepting the view that both the  introduction of a new definition of route by Act 56  of 1966  as well as the provisions of the Bangalore scheme  are based  upon a definition of a "route" which  coincides  with

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the  view  taken  of very similar provisions  by  the  Privy Council  in  the  Kelani Valley Motor  Transit  Co.’s  ,case (supra).   If we were to accept this concept of a route  the mere  overlapping  of some portions of a route,  whether  it falls  in  class (a) or class (b) of  the  routes  mentioned against heading 3 of the Bangalore ’Scheme, would not  debar a  private  operator from plying on his  own  but  different route which is not notified at all. An  objection to the meaning of the term "route" adopted  by me  is that, if it was accepted, the provisions of a  scheme could be defeated ’by creating almost wholly overlapping but very  slightly  longer or shorter routes.  I have  no  doubt that,  if  malafide  attempts  were  made  to   deliberately circumvent   provisions  of  a  scheme,  neither   transport authorities  nor Courts would allow them to succeed. it  was for  this  reason  that the  State  Transport  Tribunal  had evolved  its own formula that overlapping beyond five  miles should  not be permitted.  This limit set by it did not,  in my opinion, contravene any provision of the scheme which  is silent  on the matter. in any case, I do not see why  Courts and  not  those who can fill up gaps by  amending  a  scheme should  ’be called upon to convert into a  prohibition  what seems,  on grounds given above, to be permitted to  citizens as incidents of their rights to use highways. For all the reasons given above, I see no reason  whatsoever to take a different view from the one I took in the judgment of  17-5-1974.   The  result is that I  would  dismiss  this appeal with costs.                            ORDER In  view of the majority decision, we allow the  appeal  and direct  the Regional Transport Authority to comply with  the requirements of the Scheme as stated by us in respect of any permit  granted or in respect of renewal of any such  permit made in favour of the third respondent ,during the  pendency of this appeal. M.K. 643