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PETITIONER: SUMER CHAND SHARMA & ANR.

       Vs.

RESPONDENT: STATE OF U.P. & ANR. ETC. ETC.

DATE OF JUDGMENT24/04/1986

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) VENKATARAMIAH, E.S. (J)

CITATION:  1986 AIR 1112            1986 SCR  (2) 766  1986 SCC  (3) 263        1986 SCALE  (1)1280  CITATOR INFO :  D          1987 SC  29  (3)  R          1988 SC 303  (2)

ACT:      Uttar Pradesh  Motor Vehicles  Special Provisions  Act, (Act XXVII  of 1976),  1976, sections 1(3) and (5), scope of Operation of  stage  carriages  by  private  operators  over common sectors of nationalised routes, provided they did not set down  or pick  up passengers  at any point on the common sectors despite  total ban  after the nationalisation of bus routes in  1950 by virtue of section 10(1)(c) of U.P. Act IX of 1955  and even  after statutory  prohibition with  effect from 1.4.1971  by section  76 of  Central Act 56 of 1969, by "practice",  -  Whether  such  operators  are  entitled  for renewal of  their authorisations under sections 1(3) and (5) of U.P.  Act, 27  of 1976  - Motor  Vehicles  1939,  section 135(2)   and   Uttar   Pradesh   Road   Transport   Services (Development) Act, 1955.

HEADNOTE:      After the nationalisation of bus routes in the Fifties, it was not permissible to permit any private operator to ply a stage carriage on any sector of the nationalised routes as the schemes  of nationalisation  did  not  provide  for  it. However, by  virtue of  section 10(1)  (c) of  Uttar Pradesh Road Transport Services (Development) Act, (Act IX of 1955), 1955  private  operators  were  allowed  to  ply  the  stage carriages on  the whole of their routes including the common sectors. U.P.  Act (IX  of 1955) was repealed by Central Act LXVI of  1969. By  virtue of  section 76 inserted as section 135 of  Motor Vehicles  Act, the  permission granted to them being inconsistent  with the provisions of the MV Act ceased to be  effective from 1.4.71, the date of repeal of the 1955 Act. Despite  this statutory  prohibition, in  the State  of Uttar Pradesh,  a "Practice", grew whereby private operators were continued  to be permitted to ply their stage carriages over common  sectors of  nationalised routes  provided  that they did  not set down or pick up passengers at any point on the common  sectors. In  1976 the  Uttar Pradesh Legislature enacted the  Uttar Pradesh Motor Vehicles Special Provisions Act, 1976 to provide for the grant 767

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of authorisation to holders of stage carriage permits to ply their  stage   carriages  over   common  sectors.  When  the applications moved  by such private operators for renewal of their authorisation,  were rejected  on the ground that they did not  possess permits on the dates of the nationalisation notifications,  some   of  them  moved  the  High  Court  of Allabahad under Article 226 and after the dismissal of their writ petitions  have come  up by way of special leave, while some  others  have  filed  their  petitions  directly  under Article 32 of the Constitution.      Dismissing the petitions, the Court ^      HELD: 1.  Where a route is nationalised Chapter IV-A of the Motor  Vehicles Act,  1939 to  the  total  exclusion  of private operators, a private operator with a permit to ply a stage  carriage  over  another  route  which  has  a  common overlapping sector  with the  nationalised route  cannot  be permitted  to   ply  his  vehicle  over  that  part  of  the overlapping common sector, even if he did not pick up or set down passengers on that part of the route. While permissions granted  under   section  10(1)(c)  of  Uttar  Pradesh  Road Transport Services  (Development) Act,  Act IX  of 1955 were patently inconsistent with the provisions of Chapter IV-A of the Motor  Vehicles Act,  1939 and  therefore, ceased  to be effective from 1.4.1971, the date of the repeal of 1955 Act, the "Practice"  of permitting private operators to ply their stage carriages  over common sectors of nationalised routes, subject to  conditions was  wholly unauthorised  and without any legal  sanctions whatsoever.  Hence, the plying of stage carriages by  the private  operators before the commencement of 1976  Act pursuant  to  such  unauthorised  and  unlawful "practice" which  had grown  up in  Uttar Pradesh,  or under interim orders  of a  Court will  disentile them  to obtain. Authorisation under  section 5  of the  Uttar Pradesh  Motor Vehicles Special Provisions Act, 1976 (Act 27 of 1976). [770 A-D]      Adarsh Travels  v. State  of Uttar  Pradesh,  [1985]  2 Scale 880 followed.      Hindustan Transport  Company v. State of Uttar Pradesh, A.I.R. [1984] S.C. 953 referred to.

JUDGMENT:      ORIGINAL JURISDICTION  : Writ  Petition (Civil) No. 255 of 1986 etc. 768      (Under Article 32 of the Constitution of India.)      S.N. Kacker,  K.K. Venugopal, R.K. Jain, Ms. Abha Jain, Gaurav Jain,  Mohd. Iqbal,  R.A. Sharma and B.S. Chauhan for the Petitioners.      The Order of the Court was delivered by      CHINNAPPA REDDY,  J.  The  petitioners  in  these  writ petitions and  special leave  petitions held  permits to ply stage  carriages  over  various  routes  in  Uttar  Pradesh, sectors of  which routes  were parts  of routes  which  were nationalised in  the Fifties.  The  nationalisation  schemes made no  provision for any private operator plying any stage carriage over any part of the nationalised routes. Operation of  stage   carriages  by   private  operators  was  totally excluded. The  result was  that from the respective dates of nationalisation,  it  was  not  permissible  to  permit  any private operator  to ply  a stage  carriage on any sector of the nationalised  route. However, by virtue of sec. 10(1)(c) of Uttar  Pradesh Road Transport Services (Development) Act,

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IX of  1955, these  several petitioners  were allowed to ply their stage carriages on the whole of their routes including the  common   sectors.  The  Uttar  Pradesh  Road  Transport Services (Development) Act, 1955 was repealed by Central Act 56 of  1969. Act  56 of  1969 came into effect from April 1, 1971. Section  76 of Act 56 of 1969 (which was inserted into the Motor  Vehicles Act 1939 as s. 135) saved permissions or exemptions granted  as well  as things done or actions taken under the  repealed  enactment  so  far  as  they  were  not inconsistent with  the provisions of the Act. The permission granted under  sec. 10(1)(c)  of U.P.  Act IX  of  1955  was patently inconsistent with the provisions of Chapter IV A of the Motor  Vehicles Act, 1939 and the permission, therefore, ceased to  be effective from 1.4.1971, the date of repeal of the 1955  Act. Therefore,  it was  no longer permissible for the private  operators to  ply their  vehicles on the common sectors  from   1.4.1971  onwards.   Despite  the  statutory prohibition against  any private  operator  plying  a  stage carriage on  any part  of  the  nationalised  route  in  the absence of  a provision in the scheme of nationalisation, it appears that  a practice  grew up (we have borrowed the word ’Practice’ from one of the judgments of Allahabad High Court which was  cited before  us) in  Uttar Pradesh of permitting private operators to ply their 769 stage carriages  over common  sectors of nationalised routes provided they  did not set down or pick up passangers at any point on  the common  sectors.  The  "Practice"  was  wholly unauthorised and  without any  legal  sanctions  whatsoever. However in  1976, the  Uttar Pradesh Legislature enacted the Uttar Pradesh Motor Vehicles Special Provisions Act, 1976 to provide for  the grant  of authorisation to holders of stage carriage permits  to ply  their stage  carriages over common sectors. This  was provided by sec. 5 of the Act. Sec. 5 was interpreted by  the court  in Hindustan Transport Company v. State of  Uttar Pradesh, A.I.R. [1984] S.C. 953 to mean that the operator  seeking an  authorisation should hold a permit on the  date of  notification. Section 1(3) of the Act makes the provisions  of the  Act applicable  ’only in relation to schemes approved  or purporting  to be  approved, areas  and routes notified  or purporting  to be notified under Chapter IV A  of the  Motor Vehicle  Act, 1939  as  amended  in  its application to  Uttar Pradesh  (hereinafter referred  to  as Principal Act)  and to  permits issued  under Principal  Act before  the   commencement  of   this  Act.’   Basing  their submissions on  s.1(3) of the 1976 Act, Shri S.N. Kacker and Shri K.K.  Venugopal learned  counsel for  petitioners urged that the  petitioners were entitled to obtain authorisations from the competent authorities under s.5 of the Act, if they had permits  to ply  stage-carriages on  the  routes  having common sectors  on July  1, 1976 the date of commencement of Act 27  of 1976.  They complained  that on  the basis of the observations of this court in Hindustan Transport Company v. State of  Uttar  Pradesh,  (supra)  their  applications  for renewal of their authorisations had been wrongly rejected on the ground that they did not possess permits on the dates of the nationalisation  notifications. We  do not see any force in the  submission of the learned counsel. As pointed out by us, on  the repeal  of Act  9  of  1955  it  was  no  longer permissible for  the transport  authorities  to  permit  the private operators  to ply  their stage  carriages  over  the common sectors,  in the  case of areas and routes which were nationalised to the completed exclusion of private operator. If by reason of the unauthorised and unlawful practice which had grown  up in  Uttar Pradesh,  private operators had been

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allowed  to   ply  vehicles  over  common  sectors,  despite statutory prohibition,  that would  surely not  entitle  the operators to  obtain authorisations  under s.5  of the  1976 Act. Whatever  doubts there  might have  been earlier, it is now settled by the decision of Constitution Bench in 770 Adarsh Travels v. State of Uttar Pradesh, [1985] 2 scale 880 that where a route is nationalised under Chapter IV A of the Motor  Vehicles  Act  to  the  total  exclusion  of  private operators, a  private operator  with a permit to ply a stage carriage over  another route  which has a common overlapping sector with  the nationalised  route cannot  be permitted to ply his  vehicle over  that part  of the  overlapping common sector, even if he did not pick up or set down passengers on that part  of the route. The law as declared by the court in Adarsh Travels  v. State  of Uttar  Pradesh, (supra) must be considered to  have always  been the  law  under  the  Motor Vehicles Act.  The plying  of stage carriages by the private operators before  the commencement  of 1976  Act pursuant to the alleged  practice which has grown up in Uttar Pradesh or under interim  orders of  a court  must be  considered to be unauthorised so  as to  disentitle the private operator from seeking the  benefit of s.5 of Uttar Pradesh Act 27 of 1976. The  writ   petitions  and   special  leave  petitions  are, therefore, dismissed. S.R.                                    Petitions dismissed. 771