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PETITIONER: NILKANTH PRASAD AND OTHERS

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT: 01/12/1961

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GAJENDRAGADKAR, P.B.

CITATION:  1962 AIR 1135            1962 SCR  Supl. (1) 728  CITATOR INFO :  R          1966 SC1661  (9)  R          1969 SC 273  (5)  D          1974 SC1940  (7,9,13,14,28,31,39,40,42,47,4  R          1986 SC 319  (4,9,10,12,13)

ACT:      Motor Transport-Route  notified under scheme- State Transport Undertaking exclusively allowed to operate thereon-Previous  operator’s  licence,  if can be  renewed-Notified  route  forming  part  of longer route operated by private operators-Private operators, if excluded-Motor Vehicles Act, 1939 (4 of 1939), s. 68F(2)(c)(iii).

HEADNOTE:      Under a  scheme framed and notified under the Motor Vehicles  Act a  certain route  was notified under s.  68D of  the Act and the Rajya Transport, Bihar was  exclusively allowed  to operate on that route. The  said notified  route  formed  part  of routes on which the appellants were operating, and in respect  of which they had asked for renewal of their permits.  The Rajya  Transport, Bihar  filed objections against  the renewal  of the permits in some cases  but in  other case  no  objection  was filed. The  question which  arose for decision was whether the  permits of  the  appellant  could  be renewed by  the Regional  Transport Authority. The appellants contended  that as  the notified  route formed part  of  a  larger  route  operated  by  a private operator,  the two routes must be regarded as different route, 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. ^      Held, that  as decided by this Court in Abdul Gafoor’s case,  the Regional  Transport  Authority had no  option but  to refuse  the permit  to  the private   operator,   if   the   State   Transport Undertaking had either applied for a permit or had already been granted one.

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    Abdul Gafoor  v. State of Mysore, A.I.R. 1961 S.C. 1956, followed.      If the  Regional Transport  Authority did not do its  duty under  the law  the Appeal  Board was entitled, when the record was before it, to revise the order  of  the  Regional  Transport  Authority under its  revisional powers as provided in s. 64A of the Act, even if the appeal was incompetent.      Samarth Transport  Co. v.  Regional Transport Authority Nagpur, A.I.R. 1961 S.C. 93, followed. 729      In the  present case  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.      Kelani Valley  Motor Transit  Co. v.  Colombo Ratnapura  Omnibus  Co.,  [1946]  A.  C.  338  and Kondala Rao v. Andhra Pradesh State Road Transport Corporation, A.I.R. 1961 S.C. 82, considered.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION:  Civil  Appeal Nos. 524 to 539 of 1961.      Appeals by  special leave  from the  judgment and order  dated July  5, 1961,  of the Patna High Court, in  Misc. Judicial cases Nos. 670 to 675 of 1959.                        WITH      Civil Appeal No. 434 of 1961.      Appeal by special leave from the judgment and order dated  August 8,  1960, of  the  Patna  High Court, in Misc. Judicial Case No. 334 of 1960.      A.V. Viswanatha  Sastri and B.P. Jha, for the appellants. (in  C. As. Nos. 534 to 538 and 434 of 1961).      B.P. Jha,  for the appellant (in C.A. No. 539 of 1961).      Lal Narain  Sinha, L.S. Sinha and S.P. Verma, for the respondents.      1961. December  1. The  Judgment of the Court was delivered by      HIDAYATULLAH, J.-The judgment in Civil Appeal No. 534 of 1961 will dispose of Civil Appeals Nos. 535 to  539 of  1961. In  these  appeals,  private operators of omnibuses challenge the orders of the Appeal Board  of the State Transport Authority, by which it  set aside  the renewal of the permits on certain routes granted by the South Bihar Regional Transport Authority, Patna. The appellants held 730 previously stage  carriage  permits  over  certain routes and  which were  due to expire in December, 1958 or  in January,  1959. They  had applied  for renewal of  their permits  under s.  58(2) of  the Motor Vehicles  Act. Under  a  scheme  framed  and notified on July 8, 1957, vide Notification No. P- 2-203/57T/4794, the  route, Gaya  to  Khijirsarai, was notified  under s.  68D of  the Motor Vehicles Act. The  Rajya Transport,  Bihar, was exclusively

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allowed to operate on that route. In Civil Appeals No. 535  to 538  of  1961,  the  Rajya  Transport, Bihar, filed objections against the renewal of the permits. In  Civil appeals  Nos. 534  and  539  of 1961, no objections were filed. The route, Gaya to Khijirsarai,  which  may  be  called  conveniently route ’AB’  formed part  of routes,  on which  the appellants were  operating and in respect of which they had  asked for  renewal of their permits. The south Bihar Regional Transport Authority, however, renewed the  permits of  the  appellants,  holding that route ’AB’ was different from the routes, for which renewal was demanded.      Against the  orders of the Regional Transport Authority,  appeals   were  filed   by  the  Rajya Transport, Bihar in all the cases, that is to say, in those  cases  in  which  the  Rajya  Transport, Bihar, had objected, and those in which it had not objected. While  these appeals  were pending,  the State of  Bihar, acting  under s.  3 of  the  Road Transport Corporations  Act,  1950  (64  of  1950) notified on April 20, 1959 as follows:           "No. R.T.  Cor. 1/59-3090-In exercise of      the powers conferred by section 3 of the Road      Transport  corporation  Act,  1950  (LXIV  of      1950), the  Governor of  Bihar is  pleased to      establish with  effect from the 1st May, 1959      a Road  Transport Corporation,  for the State      of Bihar,  to be called, the Bihar State Road      Transport Corporation’. 731           2.  The   said  Corporation  shall  with      effect from  the said  date, exercise all the      powers and  perform all  the functions  which      are at  present being exercised and performed      by the Rajya Transport, Bihar.         By order of the Governor of Bihar.              K. B. Sharma, Dy. Secy."      At the hearing of the appeals, the Government Advocate, Mr.  Lal Narain  Sinha, appeared for the Road Transport Corporation. Objection was taken to the competency  of the  appeals on two grounds. In those cases  in which  the Rajya Transport, Bihar, had not  objected to  the renewal  of the  permits before the  Regional Transport  Authority, it  was contended that  it had  no locus  standi  to  file appeals.  In  those  cases  in  which  it  had  so objected, the  ground was  that the Road Transport Corporation could not, in law, represent the Rajya Transport, Bihar,  in the  appeals  filed  by  the latter. On merits, it was contented that the order of the  Regional Transport  Authority that route ’ AB ’  though part  of the routes for which renewal was asked,  was a  different route,  and the State Corporation  had   an  exclusive   right  to   ply omnibuses on routes ’AB’ did not affect the rights of  the  appellants  to  ply  their  omnibuses  on routes, which were entirely different.      The Government  Advocate contended  that,  on the analogy of the principle underlying O. 22, Re. 10 of the Civil Procedure Code, the Road Transport Corporation  on  which  devolved  the  powers  and functions of  the Rajya  Transport,  Bihar,  could prosecute the  appeals. He  also contended, in the alternative, that  he was  representing  also  the

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Rajya Transport,  Bihar, and that the appeals were not defective.  The Board accepted the argument of the Government  Advocate, and set aside the orders of  renewal   passed  by  the  Regional  Transport Authority. The appellants then filed petitions 732 under  Arts.  226  and  227  of  the  Constitution challenging  the   order  of  the  Board  on  many grounds. The  High Court,  by its  judgment  dated July 5,  1961, dismissed all the petitions. In the order under  appeal, the High Court considered the competency of the appeals, and held that the Rajya Transport, Bihar,  was competent  to prosecute the appeals before  the Appeal  Board. In dealing with the question whether the Appeal Board was entitled to  interfere  with  the  order  of  the  Regional Transport Authority  at the  instance of the Rajya Transport  in   those  cases,   where  the   Rajya Transport had not filed objections under the Motor Vehicles Act,  the High Court held that it was not necessary to express an opinion on the correctness of the  argument, because  the Regional  Transport Authority was  not competent  to grant  a renewal, inasmuch as such a grant was a direct violation of the scheme  approved by  the State  Government and published in  the Official Gazette. On the merits, the High Court was of opinion that under s. 68F(2) (c) (iii),  the Regional Transport Authority could curtail the  length of  the route  covered by  the permit, and  exclude the portion, which overlapped a notified  route. The  present appeals  have been filed against  the order  of the  High Court, with the special leave of this Court.      These appeals  thus fall  into two groups. In one group  are Civil  Appeals Nos.  534 and 539 of 1961 and  in the  other are Civil Appeals Nos. 535 to 538  of 1961.  In  the  former,  the  grant  of renewal of  the permits  has been made without any objection, and  in the  latter, in  spite  of  the objections  filed  by  the  Rajya  Transport.  The competency of  the appeals before the Appeal Board is  involved   in  both   the  groups,  though  on different grounds.  The answer  to  the  different objections is, however, the same. 733      In Abdul  Gafoor  v.  State  of  Mysore,  the effect of  notifying a  scheme was  considered  by this Court,  and it  was there  stated that when a scheme has  been notified  under Chap.  IVA of the Motor Vehicles Act, and an application is made for the grant  of a  permit on  a route notified under the scheme  by a  private operator,  the  Regional Transport Authority  has no  option but  to refuse the permit  to the  private operator, if the State Transport Undertaking  has either  applied  for  a permit or has already been granted one. In all the present cases, the State Transport Undertaking had already been granted a permit over route ’AB’, and if the  private operators,  that is  to  say,  the appellants, were  not entitled,  in  law,  to  the renewal of their permits for routes which embraced also  route  ’AB’,  then  the  Regional  Transport Authority  could  not  but  refuse  to  renew  the permits. It  was observed  in Abdul  Gafoor’s case that the  duty of the Regional Transport Authority

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was merely mechanical, and that it was required to take note of routes which had been notified and to adapt its  orders so  as to  be in conformity with the  notified   scheme.  In   view  of  the  fact, therefore, that  the scheme  had been notified and route ’AB’  had already  been granted to the Rajya Transport and/or  the State Transport Undertaking, the Regional  Transport Authority  was incompetent to renew  a permit  over a  route embracing  route ’AB’. The  Regional Transport Authority not having done its  duty under the law, the Appeal Board was entitled, when the record was before it, to revise the order  of the  Regional  Transport  Authority, even if the appeal was incompetent, in view of the vast  powers   of  revision  under  s.  64A.  That section, omitting the provisos, reads:           "The  State   Transport  Authority  may,      either on its own motion or on an application      made to  it, call  for the record of any case      in which an order has been made by a Regional 734      Transport Authority  and in  which no  appeal      lies,  and   if  it   appears  to  the  State      Transport Authority  that the  order made  by      the Regional  Transport Authority is improper      or illegal, the State Transport Authority may      pass such order in relation to the case as it      deems fit." The High  Court came  to the  conclusion  that  it should not  interfere, in its discretionary powers under Arts.  226 and  227, with  the order  of the Appeal Board,  because even if the appeal for some reason was  incompetent, the  Appeal Board had the record before  it, and  gave effect to the correct legal position arising from a notified scheme. The same view  was expressed also in Samarth Transport Co. v.  Regional Transport  Authority, Nagpur.  In our opinion,  we  should  not  interfere  on  this ground either.  In this connection, the difference between the  two sets  of cases  arising from  the fact  whether  the  Rajya  Transport,  Bihar,  had objected or not, completely disappears.      We are  now concerned  with the merits of the contention that  where the  scheme notifies,  as a route, a  part of  a larger  route operated  by  a private operator,  the two routes must be regarded as different,  and the  private operator cannot be prevented  from  running  his  omnibuses  on  that portion of  his route  which is a different route, although  notified.  Reliance  is  placed  upon  a decision of  the Privy  Council in  Kelani  Valley Motor  Transit  Co.,  Ltd.,  v.  Colombo-Ratnapura Omnibus Co.,  Ltd. There,  the Privy  Council  was concerned  with   two  Ordinances  promulgated  in Ceylon intituled  the Motor  Car Ordinance (No. 45 of  1938)   and  the   Omnibus  Service  Licensing Ordinance (No. 47 of 1942). By the first schedule, para I  of the  latter Ordinance,  it was provided that if  applications were  made by  two  or  more persons for  road service  licences in  respect of the same  route, preference should be given to (a) an 735 application  from   a   company   or   partnership comprising the holders of all the licences for the

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time being  in force under the Motor Car Ordinance No. 45  of 1938,  authorising the use of omnibuses on such  route, and  (b)  an  application  from  a company or  partnership comprising  the holders of the majority  of the  licences referred  to in (a) above. Section 7, sub-s. 1, provides:           "The  issue  of  road  service  licences      under this Ordinance shall be so regulated by      the Commissioner  as to secure that different      persons are not authorised to provide regular      omnibus services  on the  same section of any      highway:   Provided,    however,   that   the      Commissioner  may,   where  he  considers  it      necessary to do so having regard to the needs      and convenience of the public, issue licences      to  two   or  more  persons  authorizing  the      provision   of   regular   omnibus   services      involving the  use of  the same  section of a      highway, if,  but only if-(a) that section of      the  highway  is  common  to  the  respective      routes to  be used  for the  purposes of  the      services to  be provided  under each  of  the      licences, but  does not  constitute the whole      or the major part of any such route." The real  question in  the case  was  whether  the appellant there  could take  into account  for the purpose of the first schedule, six omnibuses which had been  licenced  for  the  route,  Panadura  to Badulla  via  Colombo  and  the  low  level  road. Panadura is  16 miles  along the  coast to Colombo and thence  from Colombo  to Ratnapura is 50 miles and from Ratnapura to Badulla, a further 80 miles. It was  clear that  the  route  from  Panadura  to Badulla was not the same or substantially the same route as the route, Colombo to Ratnapura; but if a licence for an omnibus on the route, Panadura to 736 Badulla,  was  one  authorising  the  use  of  the omnibus on  the route,  Colombo to Ratnapura, then six omnibuses  plied by  the  appellant  could  be taken into  account to  turn the scale between the parties.  Sir  John  Beaumont  in  expounding  the meaning of the word "route" observed as follows:           "If ’route’  has  the  same  meaning  as      ’highway’ in the Ordinance this argument must      prevail, since  admittedly an omnibus running      on the  highway from Panadura to Badulla will      pass over  the whole  of the  highway between      Colombo   and   Ratnapura,   but   in   their      Lordships’ opinion  it impossible to say that      ’route’ and  ’highway’ in  the two Ordinances      are synonymous  terms............ 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."      This distinction  between "route"  and "road" is relied  upon by the appellants to show that the notified route,  which we  have called  ’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 omnibuses of the appellants plying on their

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"routes."  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.   Mr.   Viswanatha   Sastri appearing for  the appellants  took us through ss. 42 to  57 of  the Motor  Vehicles Act and drew our attention to  those in  which the word "route" has been  used,  contra-distinguished  from  the  word "area", and  contended that  everywhere  the  word "route" is  used in  the sense  of a notional line between two 737 termini running  a stated  course, and  is used in contradistinction to  what may  be conveyed by the word    "area ".  In Kondala Rao v. Andhra Pradesh State Road  Transport Corporation,  this court, in dealing with the scheme of the Motor Vehicles Act, declined to  make  any  such  distinction  between "route" and  "area". This  Court, speaking through Subba Rao, J., observed at p. 93:           "Under s.  68C of the Act the scheme may      be framed  in respect  of any area or a 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." In any  event, under  s. 68C it is provided that a scheme may  notify a route or an area or a portion of a  route or  a portion  of  an  area,  and  the exclusion of  the private operators from the whole route or  the whole area or a part of the route or a part  of that  area, as  the case may be, may be either complete  or partial,  and under  s. 68F(2) (c) (iii),  the Regional  Transport Authority  may modify the  terms of  any existing permit so as to "curtail the  area or route covered by the permit, in so  far as  such permit relates to the notified area or  notified route ". This means that even in those cases where the notified route and the route applied  for   run  over   a  common  sector,  the curtailment by virtue of the notified scheme would be by  excluding that  portion of the route or, in other words,  the "  road "  common to  both.  The distinction between " route " as the notional line and "  road "  as the physical track disappears in the working  of  Chap.  IVA,  because  you  cannot curtail the  route without curtailing a portion of the road, 738 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.  IVA, 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,

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the appellants were rightly held to be disentitled to run  over those  portions of their routes which were  notified   as  part  of  the  scheme.  Those portions cannot  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.  The  decision  under  appeal  was, therefore, correct in all the circumstances of the case.      This  leaves  over  for  consideration  Civil Appeal No.  434 of 1961. There, the question which arose was decided in the same way in which we have disposed  of   the  other   appeals   on   merits. Ramaswami, C.J.,  and Kanhaiya Singh, J., referred to an  earlier decision  (M.J.C. No.  354 of  1960 decided on  May  13,  1960)  given  by  the  Chief Justice and  Chaudhuri,  J.,  in  which  they  had applied  the   Privy  Council  case,  and  made  a distinction between  a route which was longer than the notified route, though running for part of the way along  the notified  route  and  the  notified route. In the judgment from which Civil Appeal No. 434 of  1961 arises, the learned Chief Justice has declined to  follow his  earlier ruling  which, he considers,  was  given  perincuriam,  because  the provisions of  s. 68  F(2)(c)(iii)  of  the  Motor Vehicles Act  were not  taken into  account. After considering  the  matter  in  the  light  of  that section, the Divisional Bench has reached the same conclusion as  we have,  and along almost the same line of reasoning. In view of what we have said in Civil Appeal No. 534 of 1961, Civil Appeal No. 434 of 1961 must also fail. 739      In the result, the appeals are dismissed, but in the circumstances of the case, we make no order about costs.                                 Appeals dismissed.