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PETITIONER: YOGESHWAR JAISWAL, ETC, ETC.

       Vs.

RESPONDENT: STATE TRANSPORT APPELLATE TRIBUNAL AND ORS.

DATE OF JUDGMENT31/01/1985

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) MUKHARJI, SABYASACHI (J)

CITATION:  1985 AIR  516            1985 SCR  (2) 790  1985 SCC  (1) 725        1985 SCALE  (1)204  CITATOR INFO :  F          1986 SC 119  (3,4)  F          1986 SC 242  (1,2)  F          1986 SC1719  (4)  RF         1992 SC1789  (5)

ACT:      Motor Vehicles Act 1939 Sections 68C, 68D and 68F:

HEADNOTE:        Stage   carriages  of  State  Transport  Undertaking- Exclusive operation  of- Draft  scheme published-No decision taken thereon  by State  Government for nine years-Increased transport  facilities-Need  and  necessity  arising-Regional Transport  Undertaking   granting  temporary  permits-Action whether valid  and legal-Statutory  duty imposed  by section 68C-Speedy exercise  with due  regard  to  public  interest- Necessity of.       Administrative Law:       Statutory  duty-Delay in  performance of  -  Abuse  of process of law - To be remedied by Court.       Practice and Procedure:          Motor Vehicle Permits-Grant of-Delay in-Performance of statutory  duty - duty of Court to enforce by issuance of writ.       A  notification dated  November 17, 1971 was published under section  68C of  the Motor Vehicles Act 1939, inviting objections  to   a  draft  scheme  providing  for  exclusive operation  of   stage  carriages   of  the  State  Transport Undertaking over  thirteen routes  in  a  district.  At  the Regional Transport  Authority felt  that it was necessary to increase the strength of the stage carriage services of nine routes out  of the  thirteen  routes  covered  by  the  said scheme, it  decided by  its order dated December 17, 1979 to invite applications  for temporary  carriage  permits.  This decision was  taken after  it had  allowed amalgamation  and extension of certain existing permits held by 102 operators. Pursuant  to  this  invitation  by  the  Regional  Transport Authority,  a   large  number   of  persons   including  the appellants applied for the temporary permits. On January 10, 1980, the  State transport  undertaking having  not made any applications under section 68F(IA) 791

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     the  application of  the appellants and a large number of other  persons about 800  were considered by the Regional Transport Authority and the appellants were granted nineteen temporary permits.       Some  Operators who  felt aggrieved by the resolutions of the  Regional Transport  Authority passed on December 17, 1979 and  January 10,  1980 filed  Revision Petitions before the State Transport Appellate Tribunal.       The Tribunal by its order dated June 3, 1981 set aside both the resolutions dated December 17, 1979 and January 13, 1980 of the Regional Transport Authority, on the ground that the amalgamation  and extension of permits granted in favour of the  existing operators,  after the  publication  of  the scheme under  section 68C  was contrary to the provisions of Chapter IVA of the Act.        The   appellants  filed  writ  petitions  which  were dismissed by the High Court, which held that since the grant of  temporary  permits  in  favour  of  the  appellants  was dependent upon  the order  dated December  17, 1979 to which the appellants  were  not  parties,  the  temporary  permits granted in their favour on January 10, 1980 were also liable to be set aside.       Allowing the Appeals to this Court, ^       HELD:  1. The  order of  the Tribunal and the order of the High  Court to  the extent  they  cancel  the  temporary permits in  favour of  the appellants  are  set  aside.  The appellants are permitted to operate their services under the temporary permits  issued to  them under section 68F (IC) on January 10,  1980 and  the operation  of the  said temporary permits shall come to an end in accordance with law. [799E]       2.  A direction  is issued  to the State Government to pass orders  under section 68D (2) approving the scheme with or without  any modification  or rejecting it or to pass any other order  thereon which it may under that provision on or before  July   31,  1985.  Such  approved  scheme  shall  be published under  section 68D  (3) on  or before  August  31, 1985. Failure  to do  so, the scheme published under section 68C shall  stand quashed  with effect  from August 31, 1985. [799C-D]       3. (i) Both the Tribunal and the High Court overlooked the relevant  issues affecting  the  public  interest  which should always  be the  guiding principle  in deciding  cases relating to  grant of  motor vehicles permits under the Act. [798B]       (ii)  The Tribunal  and the  High Court both failed to notice that  the scheme  had been published in the year 1971 and the  order issuing  temporary permits  had  been  passed nearly nine  years after its publication, after the Regional Transport Authority  was satisfied  that there was necessity for granting them. [i]       (iii)  The Tribunal and the High Court did not seek to elicit information  about the  reasons  for  the  inordinate delay in  the  State  Government  passing  its  order  under section 68D  of the  Act and  failed to consider the adverse effect on the travelling public. [798D] 792       4.  The Regional  Transport Authority  had found  that there was  need for  issuing the  said temporary permits for some of  the  routes  in  question,  after  it  had  granted extension to  the permits held by 102 existing operators. On the cancellation  of  the  said  extensions,  the  need  for providing additional  travelling facilities  became  further intensified and  therefore there  was certainly  no case for setting aside the temporary permits granted in favour of the

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appellants. The cancellation of the temporary permits issued in favour  of the  appellants has  resulted ill grave public prejudice. [798G-H]       5. Delay in performance of statutory duties amounts to an abuse  of process  of law  and has  to be remedied by the court particularly when the public interest suffers thereby. [796F]       6.  (i) The  provisions of section 68C and section 68D of the  Motor Vehicles  Act 1939  clearly indicate  that any scheme which  is intended for providing efficient, adequate, economical or  properly  by  coordinated  transport  service should be  approved either as it is or in a modified form or rejected as  the case  may be within a reasonably short time as any  extraordinary delay  is bound to upset all or any of the  factors,   namely  efficiency,   adequacy,  economy  of coordination which  ought to govern an approved scheme under Chapter IVA of the Act. [194G-H]       (ii)  On account of various reasons such as the growth of population  and the  development of the geographical area adjacent to  the area or route in question, any unreasonable delay may  render the  very proposal contained in the scheme antiquated, outmoded  and purposeless.  Hence there  is need for speedy  disposal of  the case  under section  68D of the Act. [795A-B]       (iii)  The power under section 68D has to be exercised having due regard to the public interest. [796H]       (iv)  If there is an unreasonably long and unexplained delay in  the State  Government passing orders under section 68D of  the Act, the Court may issue a mandamus to the State Government to  dispose of  the case under section 68D of the Act within  a specified  time or  may in an appropriate case even issue  a writ  in the nature of certiorari quashing the scheme and a writ in the nature of prohibition directing the State Government  not to  proceed with  the consideration of the scheme  published under  section 68C  of the Act because section 68D  does not confer an unfettered discretion on the State Government to deal with the case as it likes. [796F-G]       7.  Sub-sections (IA) and 1C of section 68F of the Act read together indicate that what can be granted under either of the  said sub-sections  is only  a temporary permit which can last  during the  period between the date of publication of the  scheme under  section 68C of the Act and the date on which the order under section 68D of the Act is made subject to the  provisions contained  in sub-section (IB) of section 68F of  the Act.  The life  of such  temporary permit cannot extend to  an unreasonably  long period, as even a renewable permit issued  under Chapter IV of the Act is subject to the restrictions contained  in section  58 of the Act as regards its duration  and renewal and that a temporary permit issued under section  62 of  the Act cannot be in force in any case for  more   than  four   months.  The  State  Government  is necessarily therefore  required by  law to  pass its  orders under section 68D of the Act as early as possible. [796C-E] 793

JUDGMENT:       CIVIL  APPELLATE JURISDICTION:  Civil Appeal  Nos. 53, 54-57, A 202-04 and 255 of 1982.       From  the Judgment and Order dated 27th November, 1981 of  Allahabad   High  Court   in  Civil  Miscellaneous  Writ Petitions Nos. 29]5, 2888 2914, and 2974 of 1981.       J.  P. Goyal,  S. N.  Kacker, Shanti  Bhushan,  V.  K. Verma, V.  J. Francis, Mahabir Singh and N. S. Malik for the

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appearing Appellants.       V.  M. Tarkunde,  K. K.  Venugopal, Prithviraj,  B. S. Chauhan, Rani  Chhabra, R.  K. Jain, Mrs. Shobha Dikshit and Raju Ramachandran for the appearing Respondents.       The Judgment of the Court was delivered by       VENKATARAMIAH,  J.  The  lamentable  delay  of  nearly fourteen years  involved in  the State  Government of  Uttar Pradesh passing  its order  under section  68D of  the Motor Vehicles Act, 1939 (hereinafter referred to as ‘the Act’) on a scheme  published under  section 68C  thereof has been the main cause  of these  appeals by special leave filed against the judgment  of the  High Court of Allahabad dated November 27, 1981. E       A  notification dated  November 17, 1971 was published under  section  68C  of  the  Act  by  the  State  transport undertaking of  the State  of Uttar  Pradesh in  the  U.  P. Gazette dated  November 27,  1971 inviting  objections to  a draft scheme  providing for  the exclusive  operation of its own  stage   carriages  over   thirteen  routes  within  the jurisdiction of  the Regional Transport Authority of Meerut. It is unfortunate that no decision has yet been taken by the State Government under section 68D of the Act for one reason or the  other. In the meanwhile the members of the public as well as  the motor  operators have become subject to several constraints arising from the publication of such a scheme.       Chapter  IVA of  the Act  was introduced by Act 100 of 1956 into  the Act  with the  object of making provision for operation of  motor vehicles  to the  exclusion, complete or partial, of  other persons  for the  purpose of providing an efficient, adequate,  economical and  properly  co-ordinated transport service to the community. The provisions contained in Chapter 1VA of the Act and the Rules made 794 thereunder are  declared as  having overriding effect on the provisions  in   Chapter  IV   of  the  Act  which  contains provisions relating to control of transport vehicles and all other laws.  Section 68C  of the Act provides that where any State transport  undertaking is  of  opinion  that  for  the purpose of  providing an efficient, adequate, economical and properly  co-ordinated   road  transport   service,  it   is necessary  in   the  public  interest  that  road  transport services in  general or  in any  particular  class  of  such service in  relation to any area or route or portion thereof should  be   run  and   operated  by   the  State  transport undertaking, whether  to the exclusion, complete or partial, of  other   persons  or   otherwise,  the   State  transport undertaking may  prepare a  scheme giving particulars of the nature of  the services proposed to be rendered, the area or route proposed  to be  covered and  such  other  particulars respecting thereto  as may  be prescribed,  and shall  cause every such  scheme to  be published  in the Official Gazette and also  in such  other manner  as the State Government may direct. On the publication of the scheme, any person already providing transport  facilities by  any means  along or near the area  or route proposed to be covered by the scheme, any association representing persons interested in the provision of road  transport facilities  recognised in  this behalf by the State  Government and  any  local  authority  or  police authority within  whose jurisdiction any part of the area or route proposed  to be covered by the scheme lies may, within thirty days  from the  date of the Publication of the scheme in the  official Gazette,  file objections  to it before the State Government. The State Government may after considering the objections  and  after  giving  an  opportunity  to  the objector or  his representatives  and the representatives of

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the State transport undertaking to be heard in the matter if they so  desire, approve  or modify  the scheme. This is the substance of  sub-sections (1) and (2) of section 68D of the Act. Under  subsection ’3)  thereof the  scheme approved  or modified has  to be  published in  the official  Gazette and such scheme  is called  the approved  scheme and the area or route to  which it  relates is  called the  notified area or notified route The provisions of section 68C and section 68D of the  Act  clearly  indicate  that  any  scheme  which  is intended for  providing efficient,  adequate, economical  or properly co-ordinated  transport service  should be approved either as  it is  or in  a modified form or rejected, as the case  may   be,  within  a  reasonably  short  time  as  any extraordinary delay  is bound  to upset  all or  any of  the factors,   namely,    efficiency,   adequacy,   economy   or coordination which  ought to govern an approved scheme under Chapter IVA  of the  Act. On account of various reasons such as the growth 795 of population  and the  development of the geographical area adjacent to  the area or route in question, any unreasonable delay may  render the very proposal contained  in the scheme antiquated, outmoded  and purposeless.  Hence  there is need for speedy  disposal of  the case  under section  68D of the Act.      The  other   legal   constraints   flowing   from   the publication of  the scheme under section 68C of the Act also lead us  to the same conclusion. Section 68F (ID) of the Act provides that  save as  otherwise provided in sub-section (1 A), or  sub-section ( 1C) thereof no permit shall be granted or renewed during the period intervening between the date of publication under  section 68C of any scheme and the date of publication of the approved or modified scheme, in 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  The proviso  to sub-section (ID) of section 68F of the  Act,  however,  states  that  where  the  period  of operation of  a permit  in relation  to any  area, route  or portion  thereof  specified  in  a  scheme  published  under section 68C  expires after  such  publication,  such  permit shall be  renewed for  a limited  period, but  the permit so renewed shall  cease to  be effective  on the publication of the scheme  under sub-section (3) of section 68D of the Act. This provision overrides the provisions in section 58 of the Act which  provides for the renewal of motor vehicle permits issued under  Chapter IV of the Act. As regards the issue of fresh permits  for operating  motor vehicles  of  the  class referred to  in the  scheme in  the area  or on the route in question between the date of publication of the scheme under section 68C  of the  Act and  the date of publication of the approved or  modified scheme  under section  68D of the Act, subsections (IA)  and (1C)  of section  68F of the Act alone have to  be resorted  to. Sub-Section  (IA) of  section  68F gives  preference   to  the   State  transport   undertaking regarding the  issue of such permits. It provides that where any  scheme   has  been   published  by  a  State  transport undertaking under  section 68  C, that undertaking may apply for a  temporary permit,  in respect of any area or route or portion thereof specified in the said scheme, for the period intervening between  the date  of publication  of the scheme and the  date of  publication of  the approved  or  modified scheme, and  where  such  application  is  made,  the  State Transport Authority  or the Regional Transport Authority, as the case  may be,  shall, if  it is  satisfied  that  it  is necessary to  increase, in the public interest the number of

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vehicles operating in such area or route or portion thereof, issue the temporary permit prayed for by the State transport undertaking 796 Such temporary  permit shall  be effective  if the scheme is published under  sub-section (3)  of section  68D of the Act until the  grant  of  the  permit  to  the  State  transport undertaking under  sub-section (1) of section 68F of the Act or if  the scheme  is not  published accordingly,  until the expiration of  one week  from the  date on  which the  order under sub-section  (2) of section 68D of the Act is made. If no application  for the  temporary permit  is made under sub section (IA)  of  section  68F  of  the  Act  by  the  State transport undertaking,  the State Transport Authority or the Regional Transport  Authority, as the case may be, may under sub-section (1C) of section 68P of the Act grant, subject to such conditions as it may think fit, temporary permit to any person in  respect of  the area  or route or portion thereof specified in  the scheme  and the  permit so  granted  shall cease to  be effective on the issue of a permit to the State transport undertaking  in respect  of that  area or route or portion thereof.  Sub-sections (  IA ) and ( 1C ) of section 68 of  the Act  read together  indicate  that  what  can  be granted under  either of  the said  sub sections  is only  a temporary permit  which can  last during  the period between the date  of publication  of the scheme under section 68C of the Act and the date on which the order under section 68D of the Act  is made  subject to  the  provisions  contained  in subsection (IB)  of section 68F of the Act. The life of such temporary permit  cannot  extend  to  an  unreasonably  long period, as  even a  renewable permit issued under Chapter IV of the  Act is  subject to  the  restrictions  contained  in section 58  of the  Act as  regards its duration and renewal and that  a temporary  permit issued under section 62 of the Act cannot  be in  force in  any case  for  more  than  four months. Necessarily,  therefore,  the  State  Government  is required by  law to pass its orders under section 68D of the Act as  early as possible. Delay in performance of statutory duties amounts  to an  abuse of process of law and has to be remedied by  the court particularly when the public interest suffers, thereby. Hence if there is an unreasonably long and unexplained delay  in the  State Government  passing  orders under section 68D of the Act, the Court may issue a mandamus to the State Government to dispose of the case under section 68D of  the  Act  within  a  specific  time  or  may  in  an appropriate  case  even  issue  a  writ  in  the  nature  of certiorari quashing  the scheme  and a  writ in  the  nature prohibition directing  the State  Government not  to proceed with the consideration of the scheme published under section 68C of  the Act  because section  68D  does  not  confer  an unfettered discretion  on the  State Government to deal with the case  as it likes. The power under section 68D has to be exercised having due regard to the public interest. 797 In the cases before us the appellants are aggrieved by the A quashing of  the temporary  permits which had been issued on January 10,  1980 under  section 68F  (1C) of the Act by the Regional Transport  Authority, Meerut  in  their  favour  to operate stage carriages on some of the routes covered by the scheme nearly  nine years  after its publication. It appears that the  Regional Transport  Authority  felt  that  it  was necessary to  increase the  strength of  the stage  carriage Services on  nine routes  out of the thirteen routes covered by the  scheme and accordingly it decided by its order dated December 17,  1979  to  invite  applications  for  temporary

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carriage permits.  This decision  was taken  by the Regional Transport Authority  after it  had allowed  the amalgamation and extension  of  certain  existing  permits  held  by  102 operators  Pursuant   to  the  invitation  by  the  Regional Transport Authority, a large number of persons including the appellants applied for the temporary permits before the last date specified  for making  such applications i. e. December 31, 1979.  On January  10, 1980,  the U.  P. State Transport Undertaking having  not made  any application  under section 68F (IA)  of the  Act, the l? applications of the appellants and a  large number  of other  persons who were about 800 in number were  considered by  the Regional Transport Authority and the  appellants were  granted in  all nineteen temporary permits. Some  persons who felt aggrieved by the resolutions of the  Regional Transport  Authority passed  on December 17 1979 and  January 10,  1980 filed  revision petitions before the  State   Transport  Appellate   Tribunal,  Lucknow.  The Tribunal by  its order dated June 3, 1981 set aside both the resolutions dated  December 17,  1979 and  January 10,  1980 passed by  the Regional Transport Authority. The main ground for setting aside the resolution dated December 17, 1979 was that the  amalgamation and  extension of  permits granted in favour of  the existing  operators after  the publication of the scheme  under section 68C of the Act was contrary to the provisions of Chapter IVA of the Act. The Tribunal, however, did not  hold that there was no necessity for increasing the number of  stage carriage services on the routes in question and for  issuing temporary  permits under section 68F of the Act. Thereafter  the appellants  filed writ petitions before the  High  Court  under  Article  226  of  the  Constitution questioning the  correctness of  the order setting aside the temporary permits  granted in  their favour  on January  10, 1980.  The   existing  operators   who  had   been   granted amalgamation and  extension of their permits by the Regional Authority on  December 17,  1979, however, did not challenge the order  of the  Tribunal even though the orders passed in their favour  were also  set aside. The High Court dismissed the writ petitions filed 798 by the  appellants holding that since the grant of temporary permits in  favour of  the appellants was dependent upon the order dated  December 17,  1979 to which the appellants were not parties,  the temporary  permits granted in their favour on January  10, 1980 were also liable to be set aside. These appeals by  special leave  are filed against the judgment of the High Court in the above writ petitions.       On  the  facts  and  in  the  circumstances  of  these appeals,  we  are  constrained  to  observe  that  both  the Tribunal and  the High  Court overlooked the relevant issues affecting the  public interest  which should  always be  the guiding principle in deciding cases relating to the grant of motor vehicles  permits under the Act. The Tribunal and  the High Court  have both  failed to  notice that the scheme had been published  in the  year  1971  and  the  order  issuing temporary permits  had been  passed nearly  nine years after its publication,  after the Regional Transport Authority was satisfied that  there was  necessity for  granting them. The Tribunal and  the  High  Court  did  not  seek  to    elicit information about  the reasons  for the  inordinate delay in the State  Government passing its order under section 68D of the Act  and failed  to consider  the adverse  effect on the travelling public.  The Tribunal  and the  High Court took a highly technical  view in disposing of the matter. We are of the view  that it  is needless  at this stage to go into the grounds in  detail on  which the Tribunal and the High Court

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found that  the orders  of the  Regional Transport Authority were untenable since nearly fourteen years have elapsed form the date  of publication  of  the  scheme.  The  High  Court appears to  have given more attention to the validity of the grant of  extensions to  the existing  operators on December 17, 1979 which was not at all in issue before it than to the correctness of  the order  of the  Tribunal in setting aside the temporary  permits granted  to the appellants on January 10, 1980  which had been challenged by the appellants in the writ petitions. Admittedly the region in which the routes in respect of  which the  scheme is  published are  lying is  a thickly populated  part of the State of Uttar Pradesh. There has been  a lot of development in the region in recent years on the  agricultural front  as well  as the commercial front The Regional  Transport Authority  had found  that there was need for  issuing the said temporary permits for some of the routes in  question after  it had  granted extensions to the permits held  by 102 existing operators. On the cancellation of the  slid extensions  the need  for providing  additional travelling  facilities   become  further   intensified   and therefore there  was certainly no case for setting aside the temporary permits  granted in  favour of the appellants. The cancellation of  the temporary  permits issued  in favour of the appellants 799 has resulted  in grave  public prejudice. We are also of the opinion that the extra-ordinary delay in the disposal of the proceedings before the State Government under section 68D of the Act  has brought  about  a  stalemate  which  should  be terminated quickly in the interests of the general public.      We,  therefore,  consider  that  in  the  interests  of justice it is appropriate to being to an end the proceedings under section  68D of  the Act  expeditiously. We would have perhaps considered  the  question  of  quashing  the  scheme itself at  this stage  but since no such contention is urged before us,  we  feel  that  it  is  sufficient  to  issue  a direction to  the State  Government  to  pass  orders  under section 68D  (2) of  the Act  approving the  scheme with  or without any  modification or  rejecting it  or to  pass  any other order  thereon which  it may pass under that provision on or before July 31,1985. We issue a direction accordingly. If the  State Government approves the scheme with or without any modification,  such approved  scheme shall  be published under section  68D (3)  of  the  Act  on  or  before  August 31,1985. If  the State  Government fails  to dispose  of the matter according within the time specified above, the scheme published under  section 68C  of the Act shall stand quashed with effect  from August 31, 1985. The order of the Tribunal and the  order of  the High  Court to the extent they cancel the temporary permits issued in favour of the appellants are set aside.  The appellants  are permitted  to operate  their services under  the temporary  permits issued  to them under section 68F  (1C) of  the Act  oh January  10, 1980  and the operation of the said temporary permits shall come to an end in accordance with law.      The appeals  are accordingly disposed of There shall be no order as to costs. N. V. K.                                    Appeals allowed. 800