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PETITIONER: SHER SINGH & ORS

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT21/10/1983

BENCH: DESAI, D.A. BENCH: DESAI, D.A. REDDY, O. CHINNAPPA (J) VARADARAJAN, A. (J)

CITATION:  1984 AIR  200            1984 SCR  (1) 464  1984 SCC  (1) 107        1983 SCALE  (2)531  CITATOR INFO :  RF         1986 SC1541  (9)  R          1986 SC2039  (2,3,5,6)  R          1988 SC  18  (11)

ACT:      Constitution of India 1950 Article 14 & 19 (1) (g)      Motor Vehicles  Act-1939-Section 47 (1-H) Preference to State Transport Corporations for grant of inter-state permit over private  operators-Whether denial  of  equality  before law-Denial of right to carry on trade.      Motor Vehicles  Act, 1939  Sections 47  (1-H) & 58 (2)- Grant of  Inter-state permit-Preference  to State  transport Corporations-Whether violative of Articles 14 and 19 (1) (g) of the Constitution.      Application for  renewal of  existing permit by private operator-Whether   entitled   to   preference   over   fresh application of a State Transport Undertaking-      Tamilnadu Motor  Vehicles Rules  155 A-Assignment  of 5 marks to State Transport Undertaking-Whether valid.      Words & Phrases.           "as if"-Meaning  of-Section 58  (2) Motor Vehicles      Act 1939.

HEADNOTE:      The petitioner  in the  Special Leave  Petition was the holder of a Stage carriage permit on an inter-State route He held several  permits for operation of the said route and as the period  prescribed for  a few  of them  had expired,  he applied for  renewal under  section 58 of the Motor Vehicles Act, 1939  to the Regional Transport Authority which granted renewal.  In   the  meanwhile,   the  State  Road  Transport Corporation the  5th  respondent  made  an  application  for grant of  a stage  carriage permit for operation on the said route. This  application was  advertised and  the matter was taken up  for consideration.  During the  pendency  of  this application the  petitioner was  granted  temporary  permits under section 62 which were renewed from time to time.      When the  application of  the petitioner for renewal of permits and  the application  of the  State  Road  Transport Corporation for  allotment of  new permit  were taken up for consideration, an  objection was  raised on  behalf  of  the

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Corporation that  as the  route was  an inter-State route it was entitled  to the  permit in preference to the petitioner in view  of section 47 (1-H). On behalf of the petitioner it was contended  that section  58 entitled  the petitioner  to renewal of  permit in  preference to  the  Corporation.  The Regional  Transport  Authority  negatived  the  petitioner’s contention and  allotted the  permit to  the Road  Transport Corporation. 465      The petitioner  in his  writ petition to the High Court contended that section 47 (1-H) was constitutionally invalid and no  preference could  be granted  in favour of the State Road Transport  Corporation. The  Single Judge dismissed the writ petition and the Division Bench upheld the order.      In the  Special Leave  Petitions to  this Court  it was contended on  behalf of  the petitioners that the State Road Transport Corporation  must  either  take  recourse  to  the provisions contained in Chapter IV-A of the Act, which makes special provisions  relating to  State Transport Undertaking or otherwise  if it  wants to  compete without  recourse  to chapter  IV-A  it  must  stand  in  competition  with  other applicants for  allotment of  stage  carriage  permits.  Any preference that  the State  Road Transport  Corporation  may enjoy in  respect of  an interstate  route under sub-section (1-H) is violative of Article 14 and the fundamental freedom to carry  on trade  under Article  19 (1)  (g).  Section  58 entitled the  petitioners to renewal of permit in preference to the  application for  grant of  a new  permit made by the State Transport Undertaking.      In  the  connected  Special  Leave  Petitions,  it  was contended on behalf of the petitioner that Rule 155-A of the Tamilnadu Motor Vehicles Rules provides for a marking system under different  heads to objectively assess who is the best suited for  grant of  the permit, and consequently an ad hoc assignment of  marks and failure to weed out the application of  the   State  Transport  Corporation  on  the  ground  of disqualification  for   not  providing  night-halt  cleaners vitiated the decision of the Transport Authority. Dismissing the Petitions. ^      HELD: 1.(i)  Section 47  (1-H) would  not deny equality before law and hence would not offend Article 14. [474-E]      (ii) The  Regional Transport Authority under section 47 upon a  judicious consideration  of merits  and demerits  of every applicant  must in a fair and reasonable manner decide who amongst  the applicants would perform the duty and carry out the  obligations under  the permit. However, sub-section (1-H) carves out an exception, that where an application for stage carriage  permit on  an inter-state route is made by a State Transport  Undertaking it must be accorded preference. But  while   granting  preference,  the  Regional  Transport Authority must  satisfy itself that the Corporation would be able to  operate on  the inter-state route without detriment to its  responsibility for  providing efficient and adequate road transport service. [471 C-D]      Dosa Satyanarayanamurty  etc.  v.  The  Andhra  Pradesh State Road Transport Corporation [1961]1 S.C.R. 642 referred to.      (iii)  While  considering  the  application  for  stage carriage permit  under section  47, the private operator has an equal chance to get a permit even on an inter-State route if it shows that the Undertaking is either unable to provide efficient  and   economical  service  or  that  the  private operator is  better equipped  to render the same. Preference in this context would mean that other things

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466 generally appearing  to be  qualitatively and quantitatively equal  though  not  with  mathematical  accuracy,  statutory provision  will   tilt  the   balance  in   favour  of   the Undertaking. [474 D]      (iv) Section  47 (1-H)  provides that  in the  case  of inter-State route,  the Undertaking  will have preference in the  matter   of  stage   carriage  permit.  The  expression ‘preference’ amongst  others, means  prior right, advantage, precedence etc.  It signifies that other things being equal, one will have preference over the other. [473 B]      (v) When  an application  for the stage carriage permit is being  processed as  required by sec. 47, the application of  the  Undertaking  for  an  inter-State  route  shall  be examined as  an application  of any  other private operator. Their merits  and demerits  must be  ascertained keeping  in view the  requirements of  clauses (a) to (f) of sec. 47 (1) and after  comparing the  merits and  demerits of  both  the application of  the Undertaking  will have  preference  over others. [473 C-D]      (vi) Qualitative  and quantitative  comparison on broad features of  passenger transport  facility  such  as  fleet, facilities  to   travelling  public   and   other   relevant consideration may  be undertaken  and after  balancing these factors other  things being  equal, the  application of  the Undertaking shall be given preference over other applicants. There is no question of eliminating private operators merely because the  Undertaking applies for a stage carriage permit under Chapter IV. [473 E]      (vii)  In   an  application   under  Chapter   IV,  the Corporation has to enter the arena like any other applicant, face the  competition and  come-up to  the  level  of  other Private operators intending to obtain stage carriage permits and  then   in  respect  of  the  route  in  question  claim preference.  Competition   is  the   essence   of   improved commercial Service. [473 F]      2. (i)  There is  no substance in the contention of the petitioner that sec. 47(1-H) is violative of Art. 19 (1) (g) in that  it denies the fundamental freedom to carry on trade because the  petitioner has  not been denied his free dom to carry on  trade. The  petitioner  is  entitled  to  make  an application under Chapter IV for a stage carriage permit and must compete  with  other  private  operators  as  also  the Undertaking. [474 F]      (ii) The Undertaking whose nett profits are required to be spent  for the  provision of  amenities to the passengers using road transport services, welfare of labour employed by the Undertaking,  for financing  the expansion programmes of the Undertaking,  and the  balance to  be made  over to  the State Government  for the  purpose of  road development must receive in  larger public  interest preference  for a permit compared to  a private  operator whose  profits would  go to argument his private income. [475 A-B]      Lachhman Das  v. State  of Punjab & Ors.[1963] 2 S.C.R. 353; Mannalal  & Anr.  v. Collector  of  Jhalawar  and  Ors. [1961] 2 S.C.R. 962 referred to. 467      3 (i)  If an application for renewal of a permit was to be trated differently than the application for a permit made under section  45 and  perocessed under section 47 and other connected provisions,  it was absolutely unnecessary for the legislature to  provide that an application for renewal of a permit shall  be made  and disposed  of as  if  it  were  an application for a fresh permit. [476 E]      (ii) The expression "as if" occurring in Section 58 (2)

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in the phrase "as if it were an application for a permit .." would mean  and imply  that the application for renewal must be made  in the  same manner  and to  the same  extent as an application for  a fresh  permit and  must be  processed  as such. This  means that  even where an existing permit holder applies for  renewal, it  has to  be  advertised  and  fresh applicants can apply for a permit. [476F]      (iii) Section  47 (1-H)  would also came into play when an application  is for renewal of a permit on an inter-State route. There  is no  conflict between  Section 47  (1-H) and Section 58 (2). [476 G]      4.  Once  the  assignment  of  5  marks  to  the  State Transport Undertaking,  is held  to be  valid the  Transport Authority was  perfectly justified  in refusing  renewal  of permits to  the petitioners.  Regarding failure  to  explain absence of  nighthalt cleaners,  in the  absence of concrete evidence, no inference can be drawn. [478 G-H]      D.R. Venkatachalam  & Ors. v. Dy Transport Commissioner JUDGMENT:

&      CIVIL APPELLATE  JURISDICTION: Special  Leave  Petition (Civil) No. 6605 of 1983.      From the  Judgment and  Order dated the 6.4.1983 of the Rajasthan High Court in D.B. Special Appeal No. 74 of 1983.                             WITH      Special Leave Petition Nos. 9678-9680 of 1982.      From the Judgment and Order dated the 4th October, 1982 of the Madras High Court in C.R.P. No. 2880-82/1978.                             AND      Write Petition Nos. 9600-9601 & 9759-9760 of 1983.      Under Article 32 of the Constitution of India. 468      K.K.Venugopal and  Mukul Mudgal  for the  Petitioner in SLP.  6605/83.      Shanti Bhushan,  S.K. Jain  and  B.M.  Mathur  for  the Respondents in SLP. 6605/83.      C.S. Vaidyanathan  for the  Petitioner in  SLP  (Civil) Nos. 9678-9680 of 1982.      Dr. Y.S. Chitale and A.V. Rangam for the Respondents in SLP (Civil) Nos. 9678-9680 of 1982.      S.N. Kacker  and A.K. Panda for the Petitioners in Writ Petitions.      Shanti Bhushan  and B.N. Mathur, S.K.Jain & S.D. Sharma for the Respondents in Writ Petitions.      The Judgment of the Court was delivered by      DESAI, J.  In this group of special leave petitions and writ petitions,  constitutional validity of Sec. 47 (I-H) of the Motor  Vehicles Act,  1939 (‘Act’ for short) directly or indirectly figures.  With a  view to  focussing attention on the context  in which  the question  is raised,  it  may  be advantageous to  refer  to  the  factual  matrix  in  S.L.P. 6605/83, in  which the learned Single Judge and the Division Bench of  the High  Court repelled  the challenge.  We would first deal  with  the  principal  challenge  common  to  all petitions and  then dispose of specific contention raised in other petitions  clubbed together  here. For  representative facts we would refer to S.L.P. 6605/83.      Re: S.L.P.  No. 6605/83:  Petitioner Sher  Singh is the holder of  a stage  carriage  permit  on  Behror-Rewari  via Barrod, Shahjahanpur  inter-State route.  A portion  of  the route from  Bahror to  National Highway No. 8 via Barrod and Shahjahanpur 28  k.ms. in  length passes  through  Rajasthan

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State and  the rest  of the portion of the route 22 K.ms. in length lies  in Haryana  State. It  is thus  an  inter-State route. Petitioner  holds 12  permits, for  operating on  the aforementioned  route.   Of  the   12  permits,  the  period prescribed  under  8  permits  expired  and  the  petitioner applied for  the renewal of the permits under Sec. 58 of the Act. Regional  Transport Authority  granted renewal  of  the permits upto and inclusive of January 20, 469 1981. The  petitioner  again  applied  for  renewal  of  the permits on  December 29,  1980.  The  Rajasthan  State  Road Transport Corporation,  fifth respondent  (‘Corporation’ for short)  made   an  application  to  the  Regional  Transport Authority on April 20, 1981 for stage carriage permit on the aforementioned  route.   This  application   was  as   usual advertised.  The  application  of  the  petitioner  for  the renewal  of   his  permits  accordingly  was  taken  up  for consideration on  April 30,  1981. Pending the consideration of the  application for  renewal of  permits, petitioner was granted temporary permits under Sec. 62 for a period of four months commencing from the date of the expiry of the earlier permit. The temporary permits were thus to expire on May 20, 1981. And these temporary permits were further renewed for a period  of  4  months  Thereafter  the  application  of  the petitioner for  renewal of  his permits  and the application for stage carriage permit made by the Corporation were taken up  for  consideration.  An  objection  was  raised  by  the Corporation that  as the route in question is an inter-State route, it  is  entitled  to  permit  in  preference  to  the petitioner in view of the provision contained in Sec. 47 (I- H) of the Act. On the other hand, it was contended on behalf of the petitioner that in view of the provision contained in Sec. 58,  the petitioner  is  entitled  to  renewal  of  his permits in  preference to the Corporation, which has made an application for a fresh permit. This contention found favour with the  Regional Transport  Authority and  the renewal  of permits was  refused to  the petitioner and the permits were granted to  the Corporation. This decision was questioned in a writ petition filed by the present petitioner in which the only contention  raised was that the preference was accorded to the Corporation for grant of a permit under Sec. 47 (I-H) of the  Act which  is constitutionally  invalid, and once no such preference  could be  granted, the preference in favour of  a  renewal  of  permit  under  Sec.  58  should  have  a precedence and the renewal ought to have been granted.      It was contended before the learned Single Judge of the High Court  that Sec.  47 (1-H) is violative both of Art. 14 and Art.  19 (1)  (g) and  is thus constitutionally invalid. That was  the only  contention canvassed  before the learned Single Judge  which did  not find favour with him as well as the Division  Bench of  the Rajasthan  High Court. Hence the petitioner filed  this petition  for special leave. A notice was ordered  to be  issued to  the  respondent  and  it  was directed that  the petition  be finally  disposed of at this stage as  the only  question raised  is one  of law  and  no investigation of facts is necessary. 470      A brief reference to the relevant provisions of the Act may help  us in demarcating the contours of controversy with precision. Chapter  IV of  the Act  contains provisions  for control of  transport vehicles. For regulating the transport business, a  scheme for  granting different types of permits has been  statutorily prescribed. There are various kinds of permits contemplated  by the  Act  such  as  stage  carriage permit, contract  carriage permit, all India tourist permit,

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special permit,  permits for transport of goods etc. Various authorities have  been constituted  under the  Act  for  the purpose of  implementing the  Act. Power  has been conferred upon specific  authorities for  granting different  kinds of permits. Sec.  47 prescribes  procedure which  the  Regional Transport  Authority  has  to  follow  while  examining  and deciding an  application for  stage carriage permit. Sec. 47 was specifically  amended by  Act 47 of 1978 which came into force on January 16,1979 By the Amending Act, sub-secs (1-A) to (1-H)  were added to Sec. 47. The focus of controversy is on subsec. (1-H). Sub-sec. (1-H) reads as under:           "(1-H): Notwithstanding anything contained in this      section, an  application for stage carriage permit from      a State  Transport undertaking  for  operating  in  any      inter-State route  shall be  given preference  over all      other applications:           Provided that  the authority  shall  not  grant  a      permit under  this sub-section  unless it  is satisfied      that the  State transport  undertaking would be able to      operate in  the inter-State  route without detriment to      its responsibility for providing efficient and adequate      road transport service in any notified area or notified      route as  is referred  to in sub-section (3) of Section      68-D where the undertaking operates the service.           Explanation:-For the purposes of this sub-section,      ’inter-State route’  means any route lying contiguously      in two or more States.’.      A bare  reading of  the provision contained in sub-sec. (1-H) shows  that where  a Corporation set up under the Road Transport Corporations  Act, 1950  is one  of the applicants for a stage carriage permit on an inter-State route, then as between other  applicants and  a State Transport Undertaking (’Undertaking’ for short), the latter 471 will  have   preference  over   others.  Routine   statutory procedure prescribed  in  Sec.  47  for  grant  of  a  stage carriage permit  requires the  Regional Transport  Authority which has  the power  to grant  permit before  selecting who amongst the numerous applicants should be granted the permit must  take   into  consideration  various  things  that  are enumerated in  Sec. 47.  Fair approach  would be  that after examining the  credentials of  every applicant, the Regional Transport Authority  shall grant permit to the person who in its opinion  would best  serve the  travelling  public.  The Regional Transport  Authority upon a judicious consideration of merits and demerits of every applicant must in a fair and reasonable manner  decide who  amongst the  applicants would perform the  duty and  carry out  the obligations  under the permit. However,  sub-sec. (1-H)  carves out an exception to this   generally    well-recognised   principle    that   an administrative authority  has to  adopt while exercising the power conferred  upon it  by  the  statute,  that  where  an application for  a stage  carriage permit  on an inter-State route is  made by  all intending applicants which includes a State  Transport   undertaking,  its   application  must  be accorded preference.  But  while  granting  preference,  the Regional Transport  Authority must  satisfy itself  that the Corporation would  be able  to operate  on  the  inter-State route without  detriment to its responsibility for providing efficient  and   adequate  road  transport  service  in  any notified area  or notified  route as  is referred to in sub- sec. (3)  of Sec.  68-D where  the undertaking  operates the service.      At this  stage, a reference to Sec. 58 would be useful. It provides  for duration  and renewal of stage carriage and

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contract  carriage   permits  other  than  temporary  permit granted under  Sec. 62.  An existing  holder of  permit  may apply for  renewal  of  permit.  Sub-sec.  (2)  of  Sec.  58 requires that a permit may be renewed on an application made and disposed  of as  if it were an application for a permit. There is a proviso to sub-sec. (2) which prescribes the time limit within  which an  application for renewal of different kinds of  permits may  be made.  There is  a second  proviso which is material and which may be extracted:           "Provided  further  that  other  conditions  being      equal,  an  application  for  renewal  shall  be  given      preference over new applications for permits."      Chapter IV-A  was introduced in the Act by Amending Act 100 of  1956 which  came into  force on  February  2,  1957. Chapter IV-A  makes special  provisions  relating  to  State Transport Undertaking. 472 The broad  scheme of  Chapter IV-A is that a State Transport Under taking  may prepare  and  publish  a  scheme  on  road transport  service.   On  the  publication  of  the  scheme, objections can  be filed as provided in Sec. 68-D. Sec. 68-E confers powers  for modification  and  cancellation  of  the Scheme. Then  comes Sec.  68-F which provides that where, in pursuance  of   an  approved  scheme,  any  State  transport undertaking applies,  in such  a manner as may be prescribed by the State Government in this behalf, for a stage carriage permit or  a  contract  carriage  permit  in  respect  of  a notified  area   or  notified  route,  the  State  Transport Authority in  any case  where the said area or route lies in more than one region and the Regional Transport Authority in any other  case shall  issue permit  to the  State Transport undertaking,  notwithstanding   anything  to   the  contrary contained in  Chapter IV.  In short in respect of a notified area or a notified route, an application for permit by State Transport undertaking  shall be  granted to the exclusion of any other  operator. Apart  from this  specific provision in Sec. 68-F, this outcome to some extent also emerges from the provision contained  in Sec.  68-B which  provides that  the provisions of  Chapter IV-A  and the  rules and  orders made thereunder  shall   have  effect   notwithstanding  anything inconsistent there  with contained  in Chapter IV of the Act or any  other law  for the  time being  in force  or in  any instrument having effect by virtue of any such law.      The first contention raised on behalf of the petitioner was that  the State  Transport Undertaking  must either take recourse to  provision in  Chapter IV-A  or otherwise  if it wants to  compete without  recourse to Chapter IV-A, it must stand  in   competition  with  other  applicants  for  stage carriage permit  and any  preference that  it may  enjoy  in respect of inter-State route under sub-sec. (1-H) of Sec. 47 is violative of Art. 14 and is denial of fundamental freedom to carry  on trade  guaranteed to petitioners by Art. 19 (1) (g).      At the outset it is necessary to bear in mind the legal position of  a State  Transport Undertaking  when dealt with under Chapter IV-A and Chapter IV of the Act. If an approved scheme in  respect of a notified area or a notified route is in force,  State Transport  Undertaking alone is entitled to operate vehicles  and therefore  is entitled to obtain stage carriage permits  both regular  and temporary depending upon whether the  scheme provides  for total or partial exclusion of private  operators. However,  when an  application for  a permit is  made under  Chapter IV,  the Undertaking  has  to compete 473

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with private  operators who  may as well make an application for permit.  When the  Undertaking applies  for permit under Chapter IV, it must satisfy the Regional Transport Authority that it is better suited than the private operator to render transport facility  to the  travelling public. Sec. 47 (1-H) however, provides that in the case of inter-State route, the Undertaking will  have preference  in the  matter  of  stage carriage  permit.   Does  preference  of  this  nature  deny equality guaranteed by Art. 14 ? The expression ’preference’ amongst others means prior right, advantage, precedence etc. But how would it be possible to give precedence one over the other. It  signifies that other things being equal, one will have preference  over the  others. When an application for a stage carriage permit is being processed as required by Sec. 47, the  application of  the Undertaking  for an inter-State route shall  be examined as application of any other private operator. Their  merits and  demerits  must  be  ascertained keeping in  view the  requirements of  (a) to (f) of Sec. 47 (1) and after comparing the merits and demerits of both, not with the  yardstick  of  mathematical  accuracy,  but  other things being  equal, the application of the Undertaking will have preference  over others.  Qualitative and  quantitative comparison on broad features of passenger transport facility such as  fleet, facilities  to travelling  public and  other relevant consideration may be undertaken and after balancing these factors  other things  being equal, the application of the  Undertaking   shall  be  given  preference  over  other applicants. There  is no  question  of  eliminating  private operators merely because the Undertaking applies for a stage carriage permit  under Chapter IV. That situation is catered to under  Chapter IV-A.  In an application under Chapter IV, Corporation has to enter the arena like any other applicant, face the  competition and  come-up to  the  level  of  other private operators intending to obtain stage carriage permits and  then   in  respect  of  the  route  in  question  claim preference. Would  this statutory provision violate equality guaranteed by  Art. 14  ? The  answer is  obviously  in  the negative. Competition  is the essence of improved commercial service. After  ensuing competition  in matter  of rendering more efficient transport service a public sector undertaking is assured statutory preference, remember no monopoly, there is no  denial of  equality guaranteed by Art. 14 ? A similar argument when  the vires  of  the  provisions  contained  in Chapter IV-A were questioned in Dosa Satyanarayanamurty etc. v. The  Andhra Pradesh  State Road Transport Corporation (1) did not  commend to  the Constitution Bench when it repelled the challenge observing as under: 474           "Ordinarily a  State Transport  Undertaking should      be in  a better  position than  others to  carry on the      said  services   for  the   benefit  of   the   public;      administratively, financially and technically it can be      expected to be in a far better position than others. It      can provide  more  well  equipped  buses,  give  better      amenities  to   the  travelling  public,  keep  regular      timings repair  or replace the buses in emergencies. It      may also  employ efficient  supervisory staff  to  keep      things going at an appreciably high standard."      This  would  apply  mutatis  mutandis  to  the  present situation. But  let it  be made clear that while considering the application for stage carriage permit under Sec. 47, the private operator has an equal chance to get a permit even on inter-State route if it shows that the Undertaking is either unable to  provide efficient  and economical service or that the private  operator is better equipped to render the same.

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Preference in  this context  would mean  that  other  things generally appearing  to be  qualitatively and quantitatively equal  though  not  with  mathematical  accuracy,  statutory provision  will   tilt  the   balance  in   favour  of   the Undertaking. Viewed  from  this  perspective  the  provision contained in  Sec. 47  (1-H) would  not deny equality before law and hence would not effend Art. 14.      The next contention was that Sec. 47 (1-H) is violative of Art.  19 (1)  (g) in that it denies to the petitioner the fundamental freedom to carry on trade. There is no substance in this  contention because  the  petitioner  has  not  been denied his  freedom to  carry on  trade. The  petitioner  is entitled to make an application under Chapter IV for a stage carriage  permit   and  must   compete  with  other  private operators as also the Undertaking. It is too late in the day to contend  that a  preference in  favour of the Undertaking would be violative of Art. 19 (1) (g) for the obvious reason that Undertaking like all other applicants for permit has to compete for  a permit.  It may be recalled that when it came to the provisions of Chapter IV-A, this Court has more often than once upheld the validity of the provisions contained in Chapter  IV-A  and  repelled  the  challenge  of  its  being violative of  Art. 19  (1)  (g),  even  though  the  private operator may  be wholly  excluded from  even applying  for a permit in  respect of  a notified  area or  a notified route being part  of an approved scheme. From a slightly different angle, the challenge may be repelled in that other things 475 being equal,  even apart  from the statutory preference, the Undertaking whose  net profits  are required to be spent for the provision  of amenities  to the  passengers  using  road transport  services,  welfare  of  labour  employed  by  the Undertaking, for  financing the  expansion programmes of the Undertaking, and  the balance  to be  made over to the State Government for  the purpose of road development must receive in larger  public interest  preference for a permit compared to a  private operator whose profits would go to augment his private income.  Sec. 30  of the  Road Transport Corporation Act, 1950  makes statutory  provision for  disposal  of  net profits of  a State  Transport Undertaking.  In  a  slightly different context,  this Court  in Lachman  Das v.  State of Punjab &  Ors. while repelling the challenge to the validity of Patiala  Recovery of  State  Dues  Act,  IV  of  2002  BD approved the  ratio in  Mannalal  &  Anr.  v.  Collector  Of Jhalawar and  Ors.(2) in  which it was held that the dues of the Government  of a State are the dues of the entire people of the  State. This being the position, a law giving special facility for the recovery of such dues cannot, in any event, be said  to offend  Art. 14  of the Constitution.’ This very approach  requires   to  be   adopted  while  examining  the challenge under Art. 19 (1) (g).      It was  next contended  that petitioner was an existing permit holder  and therefore,  under Sec. 58 it was entitled to renewal  of its permits in preference to the applications for new  permits made by the Undertaking. The second proviso to Sec.  58 (2)  does provide  that ’other  conditions being equal, an  application for renewal shall be given preference over new  applications for  permits.’ What  has surprised us the most  is that  while  the  petitioners  have  a  serious grievance against the preference accorded to the Undertaking for a  permit on  the inter-State route under Sec. 47 (1-H), the same  petitioner is keen to protect preference in favour of  the   renewal  of  a  permit  against  a  new  applicant statutorily provided  in Sec. 58. But Sec. 58 also manifests the  legislative  intention  when  it  uses  the  expression

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preference with  an adjectival clause ’that other conditions being  equal’,  an  application  for  renewal  will  have  a preference over the new applications.      The first  submission in  this behalf  is that  when an application is  made for a renewal of a permit, it has to be considered only under 476 Sec. 58  and the  preference therein  provided excludes  any consideration of  an application for a permit under Sec. 47. Approaching the  matter from  this angle,  it was  contended that as  the present  petitioner has made an application for the renewal  of the  permit, he  should have  been  accorded preference as  mandated by  the second proviso to Sec. 58(2) over  the   fresh  application   of  the   Undertaking   and consideration of  the application  of  the  renewal  of  the permit under Sec. 58 excludes importing of the provisions of Sec.  47.  This  approach  overlooks  a  specific  provision enacted in sub-sec. (2) of Sec. 58 which provides as under:           "58 (2)  A permit may be renewed on an application      made and disposed of as if it were an application for a      permit .." When a statute prescribes that an application for renewal of a permit  shall be  made and  disposed of  as if  it were an application for  a permit,  the legislature  incorporated by pen and  ink all  those provisions  which are applicable for grant of  a permit  upon a  fresh application  made in  this behalf. If  an application for renewal of a permit was to be treated differently  than the  application for a permit made under  Sec.  45  and  processed  under  Sec.  47  and  other connected provisions,  it was absolutely unnecessary for the legislature to  provide that an application for renewal of a permit shall  be made  and disposed  of as  if  it  were  an application for  a fresh  permit. The  expression ’as if’ is used to  make one applicable in respect of other. Therefore, the expression  ’as if’  used in  Sec. 58 (2) would mean and imply that  the application  for renewal must be made in the same manner  and to  same extent  an application for a fresh permit and  must be  processed as such. This would mean that even where  an existing  permit holder applies for a renewal of his  permit, it has to be advertised and fresh applicants can as  well apply  for a permit to ply vehicles on the same route for  which the  previous holder  of permit has applied for renewal  of  his  permit.  After  considering  all  such applications, other  conditions  being  equal,  an  existing operator who  has applied  for renewal will have preference. Therefore, by  necessary interpretation, Sec. 47 (1-H) would also come  into play when an application is for renewal of a permit on an inter-State route. There is no conflict between Sec. 47 (1-H) and Sec. 58 (2). It is therefore, not possible to  accept   the  submission   that  while  considering  the application for  renewal of  a permit,  Sec. 47 (1-H) is not attracted. 477      It appears that the State of Rajasthan had amended Sec. 58 (2)  in its  application to  that State  by engrafting  a third proviso  to sub-sec. (2) of Sec. 58 by Rajasthan Act 8 of 1973, which reads as under:           "Provided also  that other conditions being equal,      an application  for stage  carriage permit  by a  State      Transport Undertakings,  as defined  in  Section  68-A,      whether an application for renewal or a new application      shall be  given preference  over all other applications      for renewal." Addition of  this proviso  merely makes  explicit  what  was implicit in sub-sec. (2) of Sec. 58. Nothing was pointed out

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to us  to hold  that the  Rajasthan State Legislature lacked competence to add the aforementioned proviso to sub-sec. (2) of Sec. 58. Re: S.L.Ps. Nos. 9678 to 9680/82:      In this  group of  petitions for  special leave, it was contended before  the High  Court that as Pallavan Transport Corporation  Ltd.,   the  first  respondent,  did  not  make provision for  night  halt  cleaners,  the  application  for permits made  by them  were liable  to be screened. The High Court declined  to examine  this  contention  on  the  short ground that  this contention was not raised before the State Transport Appellate  Tribunal. For the same reason, we could as well  have declined  to examine this contention. However, it may as well be pointed out that even if the contention is to be  examined on  merits, there is no substance in it. The State of Tamil Nadu has framed what are styled as Tamil Nadu Motor Vehicles  Rules. Rule  155-A provides  for  a  marking system under  different heads  to rival claimants for permit to objectively  assess who  amongst them is the best to whom permit should  be granted. Before proceeding to assign marks under different heads, the Transport Authority has to screen applications so  as to  weed out  those unsuitable on one or the  other   ground  mentioned   in  the   rule.  One   such disqualification is  the failure  to provide  for night halt cleaners. It  was urged  that after  the Transport Authority made  the  enquiry  from  the  first  respondent-Corporation whether it  has provision  for night  halt cleaners, without waiting  for  the  clarification,  the  Transport  Authority proceeded to dispose of the application. It was next pointed out that  Rule 155-A  (3) (d) provides that 5 marks shall be awarded to  the applicant  falling within the proviso to cl. (c) of  Sec. 62  of the  Act which means and implies a State Transport Undertaking. The 478 grievance is that such adhoc assignment of marks and failure to   weed   out   the   application   on   the   ground   of disqualification for  not providing  night halt cleaners has vitiated  the  decision  of  the  Transport  Authority.  The validity of  Rule 155-A  and its various sub clauses came up for consideration  of this  Court in D.R. Venkachalam & Ors. vs. Dy. Transport Commissioner & Ors.(1) This Court repelled the challenge  especially to  the provision  for assigning 5 marks to a State Transport Undertaking observing as under:           "A State  enterprise, in a truly Welfare State, is      charged with  a social consciousness and responsibility      for its  citizens, an  attention to  serve them  and  a      willingness to  embark on  public utility  undertakings      better to  fulfil people’s  demands. The  public sector      enterprises are  expected to  be  model  employers  and      model  servants   planning  their  budgets,  subjecting      themselves to public audit and criticism and inquest by      legislative  committees   and   the   Houses   of   the      legislature.  Profits   are  their  concern  but,  more      importantly, public  weal is  their commitment. Such is      the philosophy  of the  State sector in our socialistic      pattern of society." On the  question of assignment of 5 marks to State Transport Undertaking this  Court held  that ’this is not an arbitrary stroke of  favouritism because  there are  many  promotional factors bearing  on the  interest of  the travelling  public which a  State enterprise  qua State  enterprise will, but a private enterprise  qua private  enterprise will  not,  take care of.  After all,  private  enterprise  has  its  primary motivation in  profit’. The Court further observed that ’the superiority   in    many   respects   of   State   Transport

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Undertakings, in  the legislative  judgment, has  led to  r. 155-A’. The  Court ultimately  held that  the assignment  of marks under  r. 155-A is geared to public interest, which is the desideratum of s. 47 (1) of the Act. Once the assignment of 5  marks to State Transport Authority Undertaking is held to be valid, the Transport Authority was perfectly justified in  refusing  renewal  of  permits  to  the  petitioners  in comparison  to  the  State  Transport  Undertaking.  As  for failure to  explain absence  of night  halt cleaners, in the absence of  concerte evidence,  no inference  can be  drawn. This was  the only  additional contention  in this  group of petitions and we find no substance in it. 479      These  are   all  the  contentions  in  this  group  of petitions and  as we  find no  substance in any of them, all the petitions are dismissed with no order as to costs. N. V. K.                                Petitions dismissed. 480