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PETITIONER: PANDIYAN ROADWAYS CORPORATION LTD.

       Vs.

RESPONDENT: THIRU M.A. EGAPPAN

DATE OF JUDGMENT24/02/1987

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SINGH, K.N. (J)

CITATION:  1987 AIR  958            1987 SCR  (2) 391  1987 SCC  (2)  47        JT 1987 (1)   545  1987 SCALE  (1)416

ACT:     Motor  Vehicles  Act,  1939--Section   68--F(1-D)--Prin- ciple  underlying  provision is that number of  services  on such  route  to  be frozen on publication  of  scheme  under Section 68C--No justification to limit provision to applica- tions  for  fresh permit or their renewal and to  leave  out applications for variation of a permit.

HEADNOTE:     The  appellant is one of the State  Transport  Undertak- ings.  On  June 30, 1976 an approved  scheme  was  published under  s.68-D of the Motor Vehicles Act, 1939 in respect  of the route Madurai to Kumuli authorising the appellant to run its stage carriages and proposing to exclude completely  all other  persons from operating their stage carriage  services under permits covering the entire route except those persons mentioned  in Annexure 11 to the scheme, who  were  existing operators on the different sectors of the notified route  on the date of the publication of the scheme.     The  respondent’s name was not mentioned in Annexure  I1 as  he was operating on a non-scheme route. On February  28, 1981 the respondent secured the variation of his permit from the Regional Transport Authority enabling him to operate  on a sector of the notified routes. The appeal against the said order  was  dismissed  and no revision  petition  was  filed against that order.     On  December 23, 1982 the respondent obtained  from  the Regional  Transport  Authority  a second  variation  of  his permit  which authorised him to operate his  stage  carriage service  on the route which was also a part of the  notified route.  An appeal filed against that order was dismissed  by the State Transport Appellate Tribunal.     The  High Court dismissed the revision  petition  taking the view that s.68-F(I-D) of the Act could not be considered as  a bar for entertaining an application for the  variation of a permit since such an application was neither an  appli- cation for a permit nor for its renewal. In  the appeal to this Court on behalf of the  appellant  it was 392 contended that a draft scheme published under s.68-C of  the

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Act  on June 4, 1976, which was still in force was a bar  to the  grant  of variation of the permit authorising  the  re- spondent  to operate his stage carriage on a sector  of  the route in respect of which the scheme had been published.      On behalf of the respondent it was contended that on  a true construction of the scheme only persons who were  oper- ating their stage carriages under permits issued in  respect of  the entire route from Madurai to Kumuli alone have  been excluded  under the approved scheme and not those  who  were operating  between  any two $aces on the notified  route  or between  any  place lying outside the notified route  and  a place on the notified route even though they might be  oper- ating on a portion of the notified route. Allowing the appeal,     HELD:  1.  In the context in which  s.68-F(I-D)  of  the Motor  Vehicles  Act, 1939 appears it is difficult  to  hold that the application for variation of a permit by  including the whole or any part of route in respect of which a  scheme is  published  under  s.68-C of the Act can  be  treated  as failing  outside  the mischief of s.68-F(I-D)  of  the  Act. There is no justification to limit the application of  s.68- F(I-D)  to  only  applications for fresh  permits  or  their renewal and to leave out their application for variation  of a  permit by the exclusion of the route or a portion of  the route  in respect of which a scheme is published.  The  fact that  the applicant is the holder of a permit to  operate  a stage carriage on another route whose variation he is  seek- ing by the inclusion of a route or a part whereof in respect of  which  a scheme is published under s.68-C ought  not  to make any difference. The principle underlying s.68-F(I-D) is that the number of services on such a route should be frozen on the publication of a scheme under s.68-C. [395E-H]     2. The approved scheme excludes the operation by  others of  stage  carriage service on the said route  except  those whose  names are mentioned in Annexure II attached  thereto. The  respondent is not protected by any provision under  the approved scheme itself. He cannot be permitted to operate on any sector of the notified route in question in view of  the provisions contained in s.68-C, 68-D and 68-FF. [396B-C]     Karnataka  State Road Transport  Corporation,  Bangalore v.B.A.  Jayaram  and Others, [1984] 2 S.C.R.  768  &  Adarsh Travels Bus Service and Another v. State of U.P. and Others, [1985] 4 S.C.C. 557, referred to. 393

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1758  of 1986.     From  the  Judgment and Order dated 22.11. 1985  of  the Madras High Court in C.R.P. No. 3117 of 1984.     Dr. Y.S. Chitale, A.V. Rangam, T.V. Ratnam and M. Palani for the Appellant.     K.K. Venugopal, A.T.M. Sampath and S. Srinivasan for the Respondent. The Judgment of the Court was delivered by     VENKATARAMIAH,  J.  The appellant is one  of  the  State Transport  Undertakings  established in the State  of  Tamil Nadu. It has questioned in this appeal by special leave  the decision of the High Court of Madras in CRP No. 3117 of 1984 affirming  an  order granting variation of a  permit  issued under the provisions of the Motor Vehicles Act, 1939  (here- inafter  referred  to as ’the Act’) by virtue of  which  the

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respondent is permitted to run a stage carriage on the route between Checkanurani and Madurai which is a part of a  noti- fied  route  Madurai to Kumuli via  Checkanurani,  Valandur, Usilampatti,  and  Theni. Before the High  Court  the  State Transport  Appellate  Tribunal and  the  Regional  Transport Authority  the  appellant had pleaded the publication  of  a draft  scheme under section 68-C of the Act on June 4,  1976 in  respect of the route Madurai to Kumuli as a bar  to  the grant  of  a variation of the permit prayed for by  the  re- spondent.  In this Court the appellant has relied  upon  the existence  of an approved scheme published on June 30,  1976 in respect of the very same route Madurai to Kumuli also  as a bar to the order of variation of permit granted in  favour of  the  respondent. The route is common to both  the  draft scheme dated June 4, 1976 and the approved scheme dated June 30,  1976.  We shall, however, consider the  effect  of  the approved  scheme  on  the order granting  variation  of  the permit first.     The  facts of the case are these. On June 30,  1976,  as stated  earlier,  the approved scheme  was  published  under section 68-D of the Act in the Tamil Nadu Government Gazette in  respect of the route Madurai to Kumuli  authorising  the appellant to run its stage carriages on that route. By  that approved  scheme it was proposed to exclude  completely  all other  persons from operating their stage carriage  services under permits covering the entire route, referred to above 394 except  those persons mentioned in Annexure II to  the  said scheme without prejudice to any future modifications, varia- tions  etc. of their permits. The operators whose names  had been mentioned in Annexure II to the scheme were persons who were  existing  operators on the different  sectors  of  the notified route on the date of the publication of the scheme. The  respondent  was not one of the those  persons  who  was running  a stage carriage service on any part or  sector  of the route in question on the date of its publication. Hence, his name was not mentioned in Annexure II to the scheme.  He was  then operating a stage carriage service under a  permit issued under the Act on the route Batlagundu to  Usilampatti which was non-scheme route. On February 28, 1981 he was able to secure the variation of the said permit from the Regional Transport  Authority  which enabled him tO  operate  on  the route measuring 21.4 Kms. from Usilampatti to  Checkanurani, which  formed  a sector of the notified  route.  The  appeal filed  against the said order was dismissed and no  revision petition  was  filed against the order dismissing  the  said appeal.  On 23.12.1982 he obtained from the Regional  Trans- port Authority a second variation of his permit under  which he was authorised to operate his stage carriage service over a distance of 16.6. Kms. from Checkanurani to Madurai  which was  also  a  part of the notified route.  An  appeal  filed against that or& was dismissed by the State Transport Appel- late  Tribunal. A revision petition was filed under  section 64-B  of  the Act (as in force in the State of  Tamil  Nadu) before the High Court. The High Court dismissed the revision petition. This appeal by special leave is filed against  the above order of the High Court.     As  mentioned earlier the appellant pleaded  before  the High  Court  that a draft scheme published on June  4,  1976 which was still in force was a bar to the grant of variation of  the  permit authorising the respondent  to  operate  his stage carriage on a sector of the route in respect of  which the  scheme  had been published. The High Court was  of  the view that section 68-F(I-D) could not be considered as a bar for  entertaining  an  application for the  variation  of  a

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permit since such an application was neither an  application for  a permit nor for its renewal. In arriving at  the  said decision  it relied upon section 68-F(1-D) of the Act  which read as follows:-               "68-F(1-D).  save  as  otherwise  provided  in               sub-section  (lA)  or  sub-section  (1-C),  no               permit shall be granted or renewed during  the               period intervening between the date of  publi-               cation,  under section 68-C of any scheme  and               the  date  of publication of the  approved  or               modified scheme, in               395               favour  of  any person for any class  of  road               transport  service in relation to an  area  or               route  or  portion  thereof  covered  by  such               scheme  .........  "     It  further  relied  upon a decision of  this  Court  in Karnataka  State  Road Transport Corporation,  Bangalore  v. B.A.  Jayaram and Others, [1984] 2 S.C.R. 768. In that  case this Court observed at page 789 thus:               "Assuming, therefore, that an application  for               variation  of the conditions of a  permit  re-               ferred to in sub-section (8) of section 57  is               to  be  deemed by a fiction of law  to  be  an               application for the grant of a new permit  the               question to which we must address ourselves is               for  what purpose is such an  application  for               variation  deemed  to be  an  application  for               grant  of a new permit.  Reading  sub-sections               (3)  to  (8) of section 57 as a whole,  it  is               clear  that  the only purpose is to  apply  to               such  an application for variation the  proce-               dure prescribed by sub-sections (3) to (7)  of               section 57 and not for the purpose of  provid-               ing that when the application for variation is               granted, the permit so varied would be  deemed               to be a new permit. If a permit so varied were               to  be deemed to be a new permit,  the  result               would be anomalous." From  the above observation the High Court deduced  that  an application  for the variation of a permit held by  the  re- spondent was not in fact an application for a permit and did not  fall  within the mischief of section 68-F(1-D)  of  the Act.  In the context in which section 68-F(1-D)  appears  we find  it difficult to agree that the application for  varia- tion of a permit by including the whole or any part of route in respect of which a scheme is published under section 68-C of the Act can be treated as falling outside the mischief of section  68-F(1-D) of the Act. There is no justification  to limit  the  application of section 68-F(1-D) of the  Act  to only applications for fresh permits or their renewal and  to leave  out  applications for variation of a  permit  by  the inclusion of the route or a portion of the route in  respect of which a scheme is published. The fact that the  applicant is  the  holder of a permit to operate a stage  carriage  on another route whose variation he is seeking by the inclusion of a route or a part thereof in respect of which a scheme is published  under section 68-C of the Act ought not  to  make any  difference. The principle underlying section  68-F(1-D) of  the Act is that the number of services on such  a  route should  be frozen on the publication of a scheme under  sec- tion  68-C of the Act. It is not, however, necessary for  us to pursue the applicability of section 68-F(1-D) 396 of  the  Act  to the present case any further  since  it  is

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brought  to our notice that the very same route is the  sub- ject-matter  of the approved scheme published under  section 68-D  of the Act on June 30, 1976 to which we  have  already adverted.  The  approved scheme, as mentioned  earlier,  ex- cludes the operation by others of stage carriage services on the  above  mentioned route Madurai to Kumuli  except  those whose  names are mentioned in Annexure II attached  thereto. The  respondent  is not protected by any  provision  in  the approved scheme itself. He cannot be permitted to operate on any sector of the notified route in question in view of  the provisions contained in sections 68-C, 68-D and 68-FF of the Act. The effect of these provisions has been summarised by a Constitution  Bench  of  this Court in  Adarsh  Travels  Bus Service  and Another v. State of U.P. and Others,  [1985]  4 S.C.C.  557. Chinnappa Reddy, J. speaking for the  Constitu- tion Bench observed at page 566 thus:               "7.  A carefully and diligent perusal of  Sec-               tion  68-C, Section 68-D(3) and Section  68-FF               in the light of the definition of the  expres-               sion  ’route’  in Section 2(28-A)  appears  to               make it manifestly clear that once a scheme is               published  under Section 68-D in  relation  to               any area or route or portion thereof,  whether               to the exclusion, complete or partial of other               persons or otherwise, no person other than the               State Transport Undertaking may operate on the               notified  area  or notified  route  except  as               provided  in  the scheme itself.  A  necessary               consequence  of  these provisions is  that  no               private  operator can operate his  vehicle  on               any  part  or portion of a  notified  area  or               notified  route unless authorised so to do  by               the  terms  of the scheme itself. He  may  not               operate on any part or portion of the notified               route  or  area on the mere  ground  that  the               permit  as originally granted to  him  covered               the notified route or area."     In view of the above observation we have to hold that in the  instant case the respondent is not entitled to  operate his stage carriage on the notified route or a portion there- of  even  though he may have been granted variation  of  his permit to operate on a sector of the notified route.     We  do not agree with the contention urged on behalf  of the  respondent  that on a true construction of  the  scheme only  persons who are operating their stage carriages  under permits  issued in respect of the entire route from  Madurai to Kumuli alone have been excluded 397 under  the approved scheme and not those Who  are  operating between any two places on the notified route or between  any place  lying outside the notified route and a place  on  the notified  route even though they may be operating on a  por- tion  of the notified route. We are firmly of the view  that on  the entire notified route between Madurai and Kumuli  or any part thereof apart from the State Transport  Undertaking no  person other than those mentioned in Annexure II to  the approved  scheme can operate a state carriage  service.  We, therefore,  direct the respondent not to operate  his  stage carriage  on the sector in respect of which he has  obtained the variation of his permit.     We are informed that the draft scheme published on  June 4, 1976 is being considered by the authority concerned under section  68-D  of the Act. It is open to the  respondent  to make  any representation which he is advised to make  before the said authority regarding the inconvenience caused to him

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by reason of the approved scheme referred to above.     The  above  appeal is, therefore,  allowed  accordingly. There is no order as to costs. A.P.J.                                                Appeal allowed. 398