REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.             OF 2010 [Arising out of SLP (C) No. 14450 of 2008]

Raj Transport Co. Pvt. Ltd., Amritsar            ……. Appellant

Versus

State Transp. Appellate Tribunal Pb. & Ors. .....Respondents     

With

CIVIL APPEAL NO.             OF 2010 [Arising out of SLP (C) No. 15686 of 2008]

With

CIVIL APPEAL NO.             OF 2010 [Arising out of SLP (C) No. 15796 of 2008]

JUDGMENT

Dr. Mukundakam Sharma, J.

1. Leave granted.  

2. As all these appeals deal with similar facts and the  

issues involved are almost identical, we propose to dispose of  

these appeals by this common Judgment and Order.

3. These appeals are filed by the appellants herein being  

aggrieved by the Judgment and Order passed by the Punjab &

Haryana  High  Court  dismissing  their  writ  petitions  while  

affirming the Judgment and Order passed by the State Transport  

Appellate Tribunal, Punjab, Chandigarh.  These appeals arise  

out of the similar facts, which we propose to recapitulate  

herein.

4. In  1988,  the  State  Transport  Commissioner,  Punjab  

(hereinafter referred to as ‘the STC’) issued a notification,  

which  was  also  published  in  the  Motor  Transport  Gazette  

(weekly) Chandigarh, inviting applications for grant of four  

stage-carriage permits for plying two return trips daily on  

the  Samana-Amritsar  (via  Bhawanigarh,  Nabha,  Malerkotla)  

route.  In  response  to  the  said  notice  published,  15  

applications, including applications of the appellants and one  

of the respondents, namely, Pepsu Road Transport Corporation  

(hereinafter  referred  to  as  ‘PRTC’)  were  received.  As  per  

Rules, the contents of those applications were published in  

the Motor Transport Gazette (Weekly), Chandigarh, for inviting  

objections,  if  any.  Thereafter,  all  the  applicants  were  

considered on merits by the STC and after hearing all the  

applicants, the order was reserved on 29.11.1988.  The same  

came  to  be  pronounced  on  10.12.1988,  whereby  in  public  

interest only two stage carriage permits with one return trip  

daily were granted to PRTC, one of the respondents herein, on  

the  ground  that  the  said  PRTC  was  having  experience  and

knowledge  of  the  route.   The  remaining  two  permits  were  

withheld.  

5. Against the aforesaid order passed, the appellants herein  

and some other aggrieved persons filed five separate appeals.  

It may be stated herein that when the aforesaid orders were  

passed  by  the  STC,  the  proceedings  were  governed  by  the  

provisions of the Motor Vehicles Act, 1939.  The aforesaid Act  

of 1939, however, came to be repealed by the Motor Vehicles  

Act, 1988 which came into force effective from 01.07.1989.  

The  aforesaid  appeals  filed  by  the  appellants  herein  and  

others were considered by the Appellate Tribunal and the same  

were disposed of by a common order passed on 08.01.2003.  By  

the said order, the appeal filed by the Indian Bus Service  

(Regd.),  Malerkotla,  was  dismissed  as  being  barred  by  

limitation,  whereas  the  appeals  filed  by  the  other  four  

appellants  including  the  appellants  herein  were  allowed  

holding that since two permits were available, therefore, the  

same be granted to four appellants with half return trip daily  

on the route in question.  The Appellate Tribunal passed a  

detailed  reasoned  order  for  granting  benefit  to  the  four  

appellants.  

6. Feeling  aggrieved  by  the  aforesaid  order,  two  writ  

petitions were filed in the Punjab and Haryana High Court.  

CWP No. 3314 of 2003 was filed by the Indian Bus Service  

(Regd.), Malerkotla whereas CWP No. 10661 of 2003 was filed by

the PRTC.  In CWP No. 3314 of 2003, Indian Bus Service (Regd.)  

Malerkotla challenged that its appeal was wrongly dismissed as  

time-barred and that its claim for grant of permits on the  

route in question was not considered.  Whereas in CWP No.  

10661 of 2003, PRTC challenged the order of granting of two  

permits with half return trip daily on the route in question  

to four appellants, on the ground that it had applied for  

grant of all the four permits and now after coming into force  

of the Act of 1988 and also after introduction of the new  

Transport  Scheme  of  the  State,  the  PRTC  being  a  State  

Transport Undertaking is solely entitled to all the permits  

for the route, which is a monopoly route.   

7. A Division Bench of the Punjab and Haryana High Court  

vide its order dated 04.08.2006, allowed the writ petitions  

and set aside the order dated 08.01.2003 and remitted the  

matter back to the Appellate Tribunal to decide the entire  

dispute afresh in accordance with law. In the said order, it  

was  also  recorded  by  the  High  Court  that  the  Appellate  

Tribunal had committed an error of jurisdiction by granting  

two permits with half return trip daily to four applicants,  

without recording any reason and without inviting applications  

for those permits.   

8. After  the  remand,  the  Appellate  Tribunal,  vide  its  

Judgment and Order dated 04.12.2006 dismissed all the five  

appeals including the appeals filed by the present appellants.

In the said order it was recorded by the Appellate Tribunal  

that keeping in view the public interest, the two permits,  

with one return daily, were rightly granted to PRTC, who had  

prior experience and knowledge of the route, being the extant  

operator.   In  so  far  as  the  remaining  two  permits  are  

concerned, which were withheld by the STC, it was held that  

after coming into force of the Transport Scheme as notified on  

09.08.1990, which was subsequently modified vide notification  

dated 21.10.1997, it has to be give effect to, as the same is  

applicable and in light of the same, the route could not have  

been granted to the private operators because a stretch of 83  

Kms. of the route in question falls on the monopoly route of  

Punjab Roadways and PRTC. Such a conclusion stemmed from the  

Transport Scheme, whereby only 20% or upto to a distance of 15  

Kms.  of  the  monopoly  route  (whichever  is  less)  can  be  

permitted  to  be  operated  by  the  private  operators,  and  

therefore it was held under the Transport Scheme that the  

appellants are not entitled to grant of any permit.   

9. As against the aforesaid order passed by the Appellate  

Tribunal, writ petitions were filed once again before the High  

Court by the present appellants, which were heard, and by a  

detailed Judgment and Order passed on 12.02.2008, the said  

writ petitions were dismissed.  Being aggrieved by the said  

order three special leave petitions were filed in this Court  

on which notices were issued.

10. We heard learned counsel appearing for the parties who  

had  taken  us  through  the  documents  on  record.   Counsel  

appearing for the appellants submitted that both the Appellate  

Tribunals as also the High Court while passing their orders,  

unfortunately  ignored  the  proviso  of  clause  (4)  of  the  

Notification  dated  21.10.1997,  which  modified  the  earlier  

Notification dated 09.08.1990. It was submitted that in view  

of such error apparent on the face of the record and omission  

on the part of the Appellate Tribunal as also of the High  

Court, in ignoring the relevant provision which applies to the  

facts  and  circumstances  of  the  present  case,  both  the  

decisions are required to be set aside and quashed. Another  

submission which was advanced was that since the process of  

inviting applications as also the process for grant of permit  

were initiated prior to the coming into force of the new Motor  

Vehicles  Act,  1988,  it  must  be  presumed  that  in  the  

proceedings in the present case, the law that was applicable  

was the provisions of the old statute of the Motor Vehicles  

Act, 1939, and therefore, the new scheme cannot be said to be  

applicable to the facts and circumstances of the present case.  

11. The aforesaid submissions of the counsel appearing for the  

appellants were, however, refuted by the counsel appearing for  

the respondents. Our attention was drawn to the provisions of  

clause  (4)  of  the  notification  by  which  a  scheme  was  

introduced. The said provisions read as follows:

“(4) All future operations on monopoly route shall be operated  by the State Transport Undertaking.”

Provided that a Private Operator may be

Allowed to operate on a portion of twenty per cent of the  monopoly route or up to the distance of fifteen kilometers of  the said route whichever is less, where it is necessary or is  in public interest to do so;  

Provided further that the permits granted by the  

Regional Transport Authority before coming into force of  the scheme to the private operators for operating on monopoly  routes, wholly or on portion thereof on the routes in which  the monopoly routes fall, shall remain unaffected”.

12. Counsel for the appellants further relied upon the second  

proviso to submit that the said proviso is applicable to the  

facts  and  circumstances  of  their  cases  as  appellants  were  

granted  permit  by  the  Regional  Transport  Authority  before  

coming into force of the scheme, and therefore, their cases to  

operate even on monopoly routes wholly or on portion thereof  

would remain unaffected.  The counsel submitted that although  

appellants were granted permits to operate on the route in  

question by an order dated 08.01.2003 passed by the Appellate  

Tribunal, yet the said order would relate back to the order  

passed  by  the  STC  as  the  order  passed  by  the  Appellate  

Tribunal was in continuation of the proceedings before the  

State Transport Commissioner, Punjab.

13. Undisputedly, the relevant scheme was introduced under  

the provisions of Section 99 read with Section 100 of the

Motor Vehicles Act, 1988 (Central Act No. 59 of 1988) and the  

same was published in the Gazette on 09.09.1990 by issuing a  

notification on 21.10.1997.  Modifications were brought in to  

the  aforesaid  scheme  and  one  of  the  modifications  was  

insertion of the aforesaid clause (4), by substituting the  

earlier clause (4) of the scheme of 1990.  The Motor Vehicles  

Act, 1939 was repealed and the same was substituted by Motor  

Vehicles  Act,  1988  that  became  effective  from  01.07.1989.  

Section 104 of the Motor Vehicles Act, 1988, which is relevant  

for the purpose of deciding the present case, is extracted  

below for ready reference:

“104. Restriction on grant of permits in respect of a notified  area or notified route.- Where a scheme has been published  under  sub-section  (3)  of  Section  100  in  respect  of  any  notified area or notified route, the State Transport Authority  or the Regional Transport Authority, as the case may be, shall  not grant any permit except in accordance with the provisions  of the scheme.

Provided that where no application for a permit has been  made by the State Transport Undertaking in respect of any  notified area or notified route in pursuance of an approved  scheme,  the  State  Transport  Authority  or  the  Regional  Transport Authority, as the case may be, may grant temporary  permits to any person in respect of such notified area or  notified route subject to the condition that such permit shall  cease to be effective on the issue of a permit to the State  transport undertaking in respect of that area or route.”

14. When the aforesaid provision is read with the provisions  

of Section 98, sub-section (2) of Section 99 and Sections 102  

and 103 of Motor Vehicles Act, 1988, it becomes obvious that  

the provisions of the new Act, which came into operation,  

would be applicable and govern the cases in respect of the two

permits for which appeals were pending before the Appellate  

Tribunal on the date when the aforesaid new Act came into  

force.  During the pendency of the aforesaid appeals also the  

new scheme came into operation, and therefore, the claim of  

the appellants for grant of two permits which was pending  

before the Appellate Tribunal was governed in accordance with  

the provisions of the Motor Vehicles Act, 1988 read with the  

scheme  which  was  promulgated  and  was  operative  and  

functioning. Therefore, the date when the Appellate Tribunal  

passed the order dated 08.01.2003 granting permits in favour  

of the two appellants would be the relevant date on which the  

appellants were granted permits and it cannot be said that the  

aforesaid permits, which were granted by the order of the  

Appellate Tribunal dated 08.01.2003 would relate back to the  

order  passed  by  the  STC.   In  our  considered  opinion,  the  

relevant date is the date of the grant of the permit and such  

date cannot relate back to any earlier period, particularly in  

view of the amendment which gives emphasis on the date of  

grant of the permit, which factually came to be granted only  

after promulgation of the Scheme.

15. Examining the matter from this angle, the said position  

would be crystal clear.  The scheme was introduced in the year  

1990 and the aforesaid substitution of a new clause in place  

of old clause (4) was brought about in the year 1997 and in  

the said modification/provision it was clearly provided that

only  those  permits  which  were  granted  by  the  Regional  

Transport Authority before coming into force of the scheme to  

the private operators for operating on monopoly routes, wholly  

or on portion thereof would remain unaffected. As on the said  

date,  when  the  aforesaid  provision  was  inserted,  the  

appellants  had  no  permit  granted  in  their  favour  by  the  

Regional Transport Authority and therefore it must be held  

that the present appellants had no permit in their favour  

granted by the Regional Transport Authority before coming into  

force of the scheme.  Consequently, the aforesaid scheme does  

not give any protection or benefit to the appellants.  In so  

far other contentions of the appellants are concerned, we have  

already answered the same in our discussion hereinbefore.  In  

view of coming into force of the new Motor Vehicles Act, 1988,  

effective  from  01.07.1989,  all  the  proceedings  and  

particularly,  the  provisions  of  the  scheme  would  be  made  

applicable  even  to  the  pending  cases  in  terms  of  the  

provisions of Section 104 of the Motor Vehicles Act, 1988 read  

with Sections 99 to 103.   

16. Considering the facts and circumstances of the present  

case and the discussion made hereinbefore, we find no merit in  

these appeals, which are dismissed, but we leave the parties  

to bear their own costs.

.................………………………J. [Dr. Mukundakam Sharma]

…..................………………..J. [ Anil R. Dave ]

New Delhi, November  19, 2010.