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PETITIONER: S.   ABDUL KHADER SAHEB

       Vs.

RESPONDENT: THE MYSORE REVENUE APPELLATE TRIBUNAL,BANGALORE & ORS.

DATE OF JUDGMENT09/11/1972

BENCH: GROVER, A.N. BENCH: GROVER, A.N. MATHEW, KUTTYIL KURIEN MUKHERJEA, B.K.

CITATION:  1973 AIR  534            1973 SCR  (2) 925  1973 SCC  (1) 357  CITATOR INFO :  RF         1974 SC1940  (3,31,35)  D          1977 SC1170  (7)  RF         1986 SC 319  (11,12,13)  R          1992 SC1888  (9)

ACT: Motor  Vehicles Act (4 of 1939).  s.68-D-Intra-State  route, what  is Nationalisation of intra state route-If proviso  to s. 68-D(3) applicable Scheme of nationalisation, if prevails over  inter-state agreement-Scheme excluding  all  operators except  two  categories-Appellant not  within  exceptions-If entitled  to permit on inter-state route,, when permit  made ineffective on over-lapping portion. Practice and Procedure-Revocation of special leave.

HEADNOTE: In  August  1964,  the States of Mysore  and  Andra  Pradesh entered.  into  a reciprocal agreement  to  introduce  stage carriage services on the inter-State route from Bellary,  in Mysore,  to Manthralaya in Andhra Pradesh, via  Chintakunta, the border in Mysore State.  By the Bellary scheme which was approved by the Mysore Government under s. 68-D of the Motor Vehicles Act, 1939 and which came into force in May,.  1964, it  was provided that only the State Transport  Undertakings will operate services on the route Bellary to Chintakunta to the  complete: exclusion of other persons, except in  regard to  the portions of the interdistrict routes  lying  outside the  limits  of  Bellary district.   The  existing,  permit- holders of inter-state routes were allowed to operate  such interState routes subject to the condition that their permit shall be rendered ineffective by the competent authority  on the overlapping portion in.the Bellary district. In the present case, the Regional Transport Authority called for  applications  for the grant of a permit on  the  inter- State  route  in  1965  and the appellant  was  one  of  the applicants.   The  Mysore  Revenue  Appellant  Tribunal,  in appeal,  granted  the  permit  to  the  appellant  with  the condition  that no passenger was to be picked up portion  of the  road overlapping the notified route, of is  Bellary  to Chintakunta).  The High Court, in a not agree with the  view of  the Tribunal that even total exclusion from  Bellary  to

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Chintakunta  border,  issued in respect of  the  overlapping portion  of  the or set down on the the  scheme  (that  writ petition,  did  under a scheme of a permit could  be  inter- State  route  by  making that  permit  ineffective  on  that portion,  and  remanded the matter to  the  State  Transport Authority for reconsideration in accordance with law. Dismissing the appeal to this Court, HELD :(I) There is no scheme of nationalisation relating  to the  inter-State route from Bellary to Manthralaya  and  the Bellary  scheme is confined only to the inter-State  routes, one  of  which  is  the  Bellary--Chintakunta  route   whose terminii were within the State.  It  could be 926 nationalised by the State of Mysore under the provisions  of s.68-D  even  though that portion overlaps  the  inter-State route from Bellary to Manthralaya. [930 E-F; 931 C] B.   H.  Aswathanarayan  Singh & Ors. v. State of  Mysore  & Ors., [1966] 1 S.C.R., 87, referred to. (2)  Since the scheme did not deal with an inter-State route at  all no question of the applicability of the  proviso  to S.68-D(3),  which  requires  the previous  approval  of  the Central Government arises. [930 D] (3)  A  scheme  of nationalisation approved  under  s.  68-D would prevail over an inter-State agreement in respect of an inter-State route. [929 G-H; 930 A-B] T.   N.   Raghunatha   Reddy  v.  Mysore   State   Transport Authority, [1970] 3 S. C. R. 780, followed. (4)  In  Thippeswamy’s case (A I.R. 1972 S.C. 1674)  it  was held  that according to the scheme all  operators  excepting those  mentioned  in  the  scheme  are  excluded  from   the nationalised  routes.   The only two  exceptions  were  with regard to inter-district operators and the existing  permit- holders on inter-State routes.  Since the appellant did  not fall  within  either  of these two  categories  it  was  not possible  to  accede  to  the  appellant’s  contention  that because  the scheme merely provides for partial ,exclusion it  was open to the authorities concerned to issue a  permit for the route overlapping the inter-state route. [929 E-G] Thippeswamy  v. The Mysore Appellate Tribunal,  A.I.R.  1972 S.C. 1674 followed. (5)  In  the  application  for stay  filed  along  with  the application  for  special leave it was stated  that  special leave  had  been granted in Thippeswamys case, but,  by  the time the petition for special leave came up for hearing  the appeal  in Thippeswamy’s case had been dismissed. .But  this fact was not mentioned to the Court.  However, it was not  a ,case  for revocation of special leave, because,  there  was nothing  to show that a reference was made to  Thippeswamy’s case, in arguments, when special leave was granted, [928  B- E]

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos. 1400  and 1401 of 1972. Appeals  by special leave from the judgment and order  dated February  29, 1972 of the Mysore High Court at Bangalore  in Writ Petitions Nos. 2561 of 1968 and 272 of 1969. M.  C.  Setalvad,  S.  S.  Javali  and  G.  N  Rao  for  the appellants. K.   N. Bhatt for respondent No. 7. L. N. Sinha    Solicitor-General  of India,  Shyamala  Pappu and J.    Ramamurthi for respondent No, 8. The Judgment of the Court was delivered by

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GROVER, J. These appeals have been brought by special  leave from a judgment of the Mysore High Court. The  facts  briefly are that in August 1964  the  States  of Mysore   and  Andhra  Pradesh  entered  into  a   reciprocal agreement  to  introduce  stage carriage  services  on  the, inter-State route from Bellary  927 in Mysore State to Manthralaya in Andhra Pradesh via Chinta- kunta.   In  August 1965 the Regional  Transport  Authority, Bellary,  called  for applications for the  grant  of  stage carriage  permit  for the aforesaid route.   The  appellant, respondents  7 and 8 and several others  filed  applications for  the  grant  of  a permit.   After  complying  with  the necessary   formalities   required   under   the   relevant. provisions  of  the Motor Vehicles  Act,  1939,  hereinafter called  the ’Act’, the Regional Transport Authority  granted permits  to the appellant and respondent No. 7 for one  trip each  day at its meeting held in August 1966.  By  the  time the Regional Transport Authority had issued the notification calling  for the applications. the scheme had been  approved by the Government of Mysore under s. 68-D of the Act.  Under this  scheme  which  was popularly  known  as  the  ’Bellary Scheme’  and which came into force with effect from  May  7, 1964 a portion of the road in question, via, from Bellary to the  district  border (Chintakunta border)  operators  other than  those mentioned in the scheme were,  totally  excluded and  only  State  Transport Undertaking  could  operate  the services.  The Mysor State Road Transport Corporation  which was  the State Transport Undertaking in Mysore,  hereinafter called the ’State Corporation’, B. Subba Rao, the  appellant and  certain other persons filed appeals before  the  Mysore State  Transport  Appellate  Tribunal.   After  hearing  the appeals  the  Tribunal  remitted the case  to  the  Regional Transport Authority for a fresh disposal.  Aggrieved by  the remand  order  the appellant, the  State.   Corporation  and others  filed  appeals before the Mysore  Revenue  Appellate Tribunal.  This Tribunal allowed the appeal of the appellant in its entirety and granted him a permit for the  interState route with the condition that no passenger was to be  picked up  or set down on the portion of the road  overlapping  the notified route of the Bellary scheme.  The appeals of others were  dismissed.  Two writ petitions were filed  before  the High Court, one by the State Corporation and the other by B. Subba  Rao challenging the, order of the  Revenue  Appellate Tribunal. The High Court disposed of the writ petition on the ground:               "When  once  on a route or a  portion  of  the               route  there  has  been  total  exclusion   of               operation   of  stage  carriage  services   by               operators  other  than  the  State   Transport               Undertaking  by  virtue  of  a  clause  in  an               approved  Scheme,  the  authorities   granting               permit under Chapter IV of the Motor  Vehicles               Act,  should  refrain from granting  a  permit               contrary to the Scheme". The  High Court did not agree with the view of  the  Revenue Appellate  Tribunal  that  even  under  a  Scheme  of  total exclusion from Bellary to Chintakunta border a permit  could be  issued  in  respect of the overlapping  portion  of  the inter-State route by making that 928 permit ineffective.  The High Court consequently directed  a remand  to the State Transport Authority to  reconsider  the matter and dispose of the same in accordance with law. Although in the special leave petition there was no  mention

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of a connected appeal which was pending in this Court,  in the  application for stay,- it was stated by  the  appellant that  special  leave  had been granted in  the  case  D.  M. Thippeswamy  v.  The Mysore Appellate Tribunal  Bangalore  & Others(1)  against the judgment of the Mysore High Court  in which a similar view had been taken with regard to the scope and ambit of the Bellary scheme.  It is .common ground  that by  the  time  the petition for special leave  came  up  for hearing  before this Court that appeal had  been  dismissed. This  led  to the State Corporation filing  a  petition  for revocation  of  special leave (C.M.P. No.  7383/72)  on  the ground  that  the fact ,of the  dismissal  of  Thippeswamy’s appeal  by this Court on May 4, 1972 had been suppressed  at the time when the petition for special leave was argued.  An affidavit  has been filed by Mr. S. S. Javali  advocate  who had appeared at the special leave stage.  He has stated that according to him Thippeswamy’s case was not relevant as  the facts  there were different and no reference was called  for or  made to it in the arguments.  It has also  been  pointed out  that  in  that very case by a  subsequent  order  dated September  29, 1970 certain clarifications have  been  made. This, it has been contended. now shows that the decision  in that  case was not apposite for the purpose. of the  present appeals.  We do not consider that any case for revocation of the  special leave has been made out and the prayer in  that behalf is hereby declined. ’Bellary Scheme’ was approved under S. 68-D of the Act  sub- ject to certain modifications by the Mysore Government by  a notification date d April 18, 1964.  It was provided in  the scheme  that  the State Transport Undertaking  will  operate services  on  all the routes to the  complete  exclusion  of other  persons  except in regard to the portions  of  inter- district   routes  lying  outside  the  limits  of   Bellary district.  The existing permit-holders on inter-State routes could be allowed to operate such inter-State routes, subject to  the  condition  that their  permits  shall  be  rendered ineffective  by the competent authority for the  overlapping portion  in the district of Bellary.  In Thippeswamy’s  case (supra)  this  very scheme came up for  consideration.   The question,  however,  which arose was whether  the  appellant there  was  not  an existing permit-holder  when  the  State Corporation applied for a permit for the route in  question. The following observations were made on this point :               "The  question  whether the  ’Bellary  Scheme’               provides  for  the  total  exclusion  of   all               operators on the nationalised               (1)   A.I.R. 1972 S.C. 1674.                929               routes  or  it  merely  provides  for  partial               exclusion   is,   in   our   opinion,   wholly               irrelevant.   All that we have to see is  what               the scheme says ? Whom does it exclude ? It is               quite  plain from the language of  the  clause               referred   to  earlier  that   all   operators               excepting those mentioned therein are excluded               from the nationalised routes.  To the  general               exclusion   made   therein,  there   are   two               exceptions.   The first one relates to  inter-               district operators and the second to  existing               permit holders on the inter-state routes.  The               appellant  does  not claim to come  under  the               first  exception.   For  the  reasons  already               mentioned  his  case  is not  covered  by  the               second exception". The  argument  of- Mr. M. C. Setalvad for the  appellant  is

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that  no  decision was given in Trippeswamy’s  case  (supra) that  the Bellary scheme provides for a total  exclusion  of all operators on the nationalised routes. He has also sought to   distinguish  that  case  by  pointing  out   that   the controversy  there was confined to the question whether  the appellant  was an existing permit holder on the  inter-state route.  It has further been stated that in the present  case no  permit  has sofar been issued to the  State  Corporation because it has failed to comply with certain provisions  and in  particular  with the requirement of s. 20  of  the  Road Transport  Corporations Act 1950.  It may be that the  facts are somewhat different here.  The view which, the High Court in  the present case took was that after the Bellary  Scheme had  come  into  force the operators other  than  the  State Transport    Undertaking   were   totally   excluded.     In Thippeswamy’s case (supra) also it is clear from the portion already  extracted  from  the judgment of  this  Court  that according  to  the  scheme  all  operators  excepting  those mentioned  in the scheme are excluded from the  nationalised routes.   The two exceptions which have been made  are  only with regard to the inter-district operators and the existing permit holders on interstate routes.  Mr. Setalvad does  not claim  that  the  appellant falls  within  either  of  these categories.  It is, therefore, not possible to accede to his contention  that  because  the scheme  merely  provides  for partial exclusion it is open to the authorities concerned to issue  a  permit for the route overlapping  the  inter-state route. The  next point on which a great deal of emphasis  has  been laid on behalf of the appellant is that an inter-state route comes  into existence by virtue of an agreement between  the States through which the route passes.  The main  provisions in  that respect are to be found in s. 63 of the  Act.   Any scheme of nationalisation of a route by a State, as approved under s. 68-D, cannot override the inter-state agreements in respect of the inter-state routes.  This Court has in T.  N. Raghunatha Reddy v. Mysore 930 State  Transport Authority(1) answered this question in  the negative.   It has been held that the inter-state  agreement is  not  law  and  to hold  that  an  inter-state  agreement overrides Chapter IV-A would be to completely disregard  the provisions  of S. 68-B of the Act.  In other words a  scheme of nationalisation approved under s. 68-D would prevail over an inter-state agreement in respect of an interstate route. Sub-section  (3) of s. 68-D of the Act has also been  relied upon  by  Mr.  Setalvad.  According to  that  provision  the scheme  as  approved or modified shall be published  in  the official gazette and the same shall thereupon become  final. The proviso, however, says that no such scheme which relates to  any inter-State route shall be deemed to be an  approved scheme unless it has been published in the official  gazette with  the previous approval of the Central  Government.   No scheme  in  the  present case has been  approved  under  the proviso  relating to the inter-State route in question.   We are  unable to see how the proviso to s. 68-D(3) can  be  of any  avail  to the appellant.  The aforesaid  provision  be- /comes  material  only when a scheme covers  an  inter-State route.   The Bellary scheme provides for nationalisation  of an  intra-State route and not an inter-State route  and  the aforesaid provision can have no applicability. Although respondent No. 7 has not appealed, counsel  appear- ing for him has called attention to the observations of this Court  in  B. H. Aswathanarayan Singh & Others v.  State  of Mysore  &  Others (2) that an inter-State route  is  one  in

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which  one of the terminii is in one State and the other  in another State.  Where both the terminii are in one State the question of an inter-State route does not arise.  If part of the scheme covers routes which continue beyond the State and connect various points in the State of Mysore with those  in the  other State it does not make the scheme  one  connected with inter-State route.  It is sought to be argued from this that  even  if Bellary-Chintakunta route which is  shown  as item 34 in the Bellary Scheme has been nationalised it  does not  make the scheme one connected with  inter-State  route. Stress  has  been laid on the example given that  the  Grand Trunk Road runs from Calcutta to Amritsar and passes through many  States and any portion of it within a State can  be  a route for purposes of stage carriage but that would not make such  a route a part of an inter-State route even though  it lies on the road which runs through many States. The  above argument can possibly have no validity so far  as the  present case is concerned.  The scheme which was  under consideration in the decision relied upon was in respect  of an intra- (1) [1970] 3 S.C.R. 780. (2) [1966] 1 S.C.R. 87.  931 rate  route.   It appears to have been argued  that  as  the scheme was concerned with an inter-state route the  approval of  the Central Government was necessary as  required  under the  proviso to s. 68D(3) of the Act.  This Court held  that since  the  terminii  were within the State  of  Mysore  the scheme  did not deal with an interstate route at all and  no question  arose  of the applicability of the proviso  to  s. 68D(3).   In  the  present  case  there  is  no  scheme   of nationalisation  relating  to  the  inter-state  route  from Bellary  to Manthralaya.  The Bellary Scheme is confined  to the  intrastate  routes,  one of those  being  the  Bellary- Chintakunta  route.   It may be that  portion  overlaps  the inter-state route from Bellary to Manthralaya but so long as it  is an intrastate route it could be nationalised  by  the State of Mysore under the provisions of s. 68D.  That having been done the decision in Thippeswamy’s case(1) (supra) will appositely apply. In  the result the appeals fail and they are dismissed  with costs, to respondent No. 8. V.P.S.                    Appeals. dismissed. 932