Andhra HC (Pre-Telangana)
Andhra Pradesh State Road Transport ... vs Karnataka State Transport Authority, ... on 5 September, 1990
Equivalent citations: AIR1991AP135, AIR 1991 ANDHRA PRADESH 135, (1991) 2 CIVLJ 243, (1991) 1 CURCC 458, (1991) 1 APLJ 126, (1990) 3 ANDH LT 452, (1990) 2 ANDHWR 540
Author: Chief Justice
Bench: Chief Justice
ORDER
1. The controversy whether temporary permit under S.68F(1C) of the Motor Vehicles Act (Act 4 of 1939) (hereinafter referred to as the Act) could be granted on a route which is already covered by an approved scheme and prohibited by its terms on the ground that another draft scheme in respect of a longer route of which the route in the approved scheme forms a part arises for consideration by the Full Bench. As there was a conflict of views among two Bench decisions viz., Writ Appeal No. 888/1982 dated 22-10-1982 confirming the judgment reported in M. R. Ramasubbamma v. S.T.A.T., A.P., 1982 LS (AP) 222 and another judgment in Writ Appeal No. 881 and 889 of 1982 dated 23-9-1986 and, therefore, writ petition No. 13061/1986 was referred to a Full Bench by an order dated 1-10-1986. After the said reference, some more writ petitions including the present two writ petitions have been referred to the Full Bench to be heard along with W.P. No. 13061/1986. After the reference, Writ Petition No. 13061/1986 and some other writ petitions were dismissed as withdrawn or infructuous. The controversy, however, survives in these two writ petition, both of which have been filed by the Andhra Pradesh State Road Transport Corporation against two different orders of the Secretary, A.P. State Transport Authority granting temporary permits under S. 68F(1C) on two different routes in favour of the respective contesting respondents and also the orders of the State Transport Authority, Karnataka granting variation of inter-State permits. We have heard the learned counsel for the petitioner-Corporation and also Sri G. Surya-narayana learned counsel appearing for the persons in whose favour the temporary permits have been granted in each of the two cases. Government Pleader has appeared for the Secretary, A.P. State Transport Authority and none for Karnataka State Transport Authority. As common arguments were advanced, these two writ petitions can be disposed of by a common judgment.
2. For convenience it is appropriate to refer to the facts of the case in Writ Petition No. 3528/1982 which are illustrative of the controversy and the facts in the other writ petition differ on some minor aspects which will be noticed later. Since prior to 1975, respondent No. 3 was an existing permit holder on the Inter-State route Kolar Gold Fields to Madanapalli which was granted after an Inter-State agreement between Karnataka and Andhra Pradesh States under S. 63(3A and B) of the Act. As under the agreement this route was allotted to Karnataka State the said permit was issued by the State Transport Authority, Karnataka. Subsequently, by G.O. Ms. No. 762 dated 3-6-1975 the Government of Andhra Pradesh approved a scheme under S. 68D of the Act for the route Madanapalle to Kadiri, both in Andhra Pradesh and covering a distance of about 100 Kms. According to the terms of this scheme, there is a complete exclusion of other operators on the route except the categories mentioned in it. Subsequent to the approval of the said scheme another draft scheme for the Inter-State route between Kurnool to Vellore in Tamil Nadu (Draft Scheme 26 of 1975) covering a distance 440 Kms. was published pursuant to an Inter-
State agreement between these States. There is no material to show as to the further steps taken pursuant to the said draft scheme.
3. The third respondent made an application to the State Transport Authority, Karnataka for variation of his Inter-State route between Kolar Gold Fields to Madanapalle by adding a segment Madanapalle to Kadiri (both in Andhra Pradesh and which completely over-laps the route approved in the scheme in G.O. Ms. No. 762 referred to above). The State Transport Authority, Karnataka after following the procedure for grant of a fresh permit as contemplated by S. 59(8) and notifying the application of the third respondent, granted the variation appli-ed for by its order dated 19-1-1982. From a copy of the proceedings of Karnataka State Transport Authority filed with the writ petition, it appears that the Karnataka State Road Transport Corporation had brought to the notice of Karnataka State Transport Authority the legal bar in view of the approved scheme in G.O. Ms, No. 762. It is not controversy that Andhra Pradesh State Road Transport Corporation did not file any objection before the Karnataka State Transport Authority. After the variation was permitted by the Karnataka State Transport Authority the third respondent made an application on 3-3-1982 to Andhra Pradesh State Trnasport Authority for its counter-signature as contemplated by S. 63 of the Act. without the counter-signature of Andhra Pradesh State Transport Authority the variation to the permit granted by Karnataka State Transport Authority would not authorise the third respondent to ply the vehicle on the extended route in Andhra Pradesh. No orders have been passed regarding the request of counter-signature so for. The Secretary, Andhra Pradesh State Transport Authority however, on the very same day i.e., 3-3-1982 granted a temporary permit to the third respondent under S. 68F(1C) for the route Madanapalle to Kadiri by the impugned proceedings on the ground that it was a portion of the route covered by the Inter-State Draft Scheme 26 of 1975. The proceedings of Secretary, State Transport Authority show that he was aware of (a) approved scheme for the route and (b) the absence of any Inter-State agreement for the segment Madanapalle to Kadiri. It appears, that the third respondent had not even made any application for grant of a temporary permit under S.68F(1C) for the route Madanapalle to Kadiri. The order of the Secretary, Andhra Pradesh State Transport Authority granting permit to the third respondent under S.68F(1C) for the route Madanapalle to Kadiri and also the order of the State Transport Authority, Karnataka are challenged by the petition-Corporation.
4. The learned counsel for the petitioner-Corporation has urged several grounds including the authority of the Karnataka State Transport Authority (a) in granting extension between the points in Andhra Pradesh State in the absence of any Inter-State agreement for this; (b) adding more than the prescribed maximum of 24 Kms. contemplated by the proviso to Cl.XXI of S.48(3) of the Act; (c) violating S.68FF as variation amounts to grant of new permit on an approved route. He also contended that the action of the Secretary, Andhra Pradesh State Transport Authority in granting a temporary permit under S.68F(1C) of the Act without any application for it and on the route which is covered by an approved scheme and prohibited by its terms is barred by S. 68FF of the Act. We will examine the latter submission first, as it has occasioned the reference to the Full Bench.
5. It is useful to notice some relevant provisions of the Motor Vehicles Act (Act 4 of 1939) as the controversy is to be decided with reference to the same even though the said Act has been replaced recently by Act 59 of 1988. Ss. 47 to 58 deal with the grant of permits in an area or region, S. 63 provides for validation of permits in regions outside the jurisdiction of the authority which granted it. By an amendment in 1956 Chapter IV-A entitled special provisions relating to State Transport Undertaking was inserted. It consists of Ss. 68A 69J. S. 68B gives over-ridding effect to the provisions of the Chapter or rules or orders made under it over other laws including Chapter IV.
6. Another amendment was made to the Act in 1959 for encouragement of Inter-State and long distance transport as one of the objects. The newly introduced S.63A provides for Inter-State Transport Commission to be set up by the Central Government and S. 63C for rules to be made by the Central Government in respect of matters mentioned in it. S.63 is amended to provide for Inter-State agreements for such routes grant of permits, and counter-signature for such routes.
6A. Section 68C in Chapter IVA contemplates preparation and publication by the State Transport Undertakings of a draft scheme in relation to any area or route or portion thereof which has to be run by them to the complete or partial exclusion of others. After considering the scheme and any objections the State Government may approve or modify the scheme under S. 68D. The effect of a scheme approved by the State Government is provided for in S. 68F(1) and (2) and S.68FF.S.68F(1A)to(1D) provide for grant of temporary permits during the period after the publication of draft scheme under S. 68C and any approved scheme under S. 68D. S. 68F(1 A) and 68F(1B) may not be relevant at this stage. It is useful to extract S. 68F( 1C), F(1D) and also S.68Ff.
"68F(1C): If no application for a temporary permit is made under sub-sec. (1A), the State Transport Authority or the Regional Trnasport Authority as the case may be, may 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.
68F(1D): Save as otherwise provided in sub-sec. (1 A) or sub-sec. (1C), no permit shall be granted or renewed during the period intervening between the date of publication, under S. 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:
Provided that where the period of operation of a permit in relation to any area, route or portion thereof specified in a scheme published under S.68C expires after such publication, such permit may be renewd for a limited period, but the permit so renewed shall cease to be effective on the publication of the scheme under sub-sec. (3) of S. 68D.
68FF: Restriction on grant of permits in respect of a notified area or notified route: Where a scheme, has been published under sub-sec. (3) of S. 68D in respect of any notified area of notified route, the State Transport Authority, as the case may be, shall not grant any permit except in accordance with the provisions of the Scheme:
Provided that where no application for a permit has been made by the State Transport Undertaking in respect of any notified area or notified route in pursuance of an approved scheme, the State Trnasport Authority or the Regional Transport Authority, as the case may be, may grant temporary permits to any person in respect of such notified area or. notified route subject to the condition that such permit shall cease to be effective on the issue of a permit to the State Trnasport Undertakings in respect of that area or route."
7. It is also useful to extract the relevant portion of the Scheme approved by the Government of Andhra Pradesh in its G.O. Ms. No. 672 dated 3-6-1975 regarding the route Mandanapalle to Kadiri:
"xx xx xx xx xx xx Maximum and minimum number of vehicles proposed to be operated on each route by the State Transport under taking to the exclusion, complete or partial or otherwise of other persons The following number of buses are proposed to be operated to the complete exclusion of all other persons holding stage carriage per-mits on the proposed route and such other persons holding stage carriage permits on the route overlapping completed on the proposed route except to the extent specified in the note hereunder."
The note referred to is as follows :
"1. The other State Transport Under takings;
2. The existing holders of stage carriage permits in respect of town service routes;
3. The holders of future stage carriage permits in respect of town service routes having an overlapping of not more than 8 Kms. with the proposed route;
4. The existing holders of stage carriage permits in respect of such route or routes, which partially overlap the proposed route."
8. Admittedly the permit given to the 3rd respondent is for the entire notified route and over-laps it and does not come in any of the four categories of exclusions mentioned above. The terms of the Scheme and S. 68FF prohibit the grant of any permit on the route Mandanapalle to Kadiri. Assuming the variation by adding the segment Madanapalle to Kadiri by the State Transport Authority, Karnataka, is valid (though this is open to doubt) as the State Transport Authority of our State has not put its counter-signature, it cannot be operative or valid in Andhra Pradesh State in view of S. 63 of the Act. The further controversies viz., whether Regional Trnasport Authority or State Trnasport Authority are to grant to counter-signature, the procedure to be followed for the same and the difference between the counter-signature of a permit in two regions of the same State and regions in two different States need not be gone into for the same reason i.e. the counter-signature has not been granted so far and the 3rd respondent has not taken any steps for compelling the counter-signature of the Andhra Pradesh State authorities.
9. The route Madanapalle to Kadiri which has been approved in the scheme mentioned above also forms a segment of about 100 Kms. (i.e. partially overlaps) another Inter-State route Kurnool to Vellore covering a distance of about 440 Kms. in respect of which a draft scheme 26/1975 has been published. Does the existence of the said draft scheme remove the prohibition contained in the terms of the approved scheme and S. 68FF thus allowing the grant of temporary permit under S.68F(1C) over the route Mandanapalle to Kadiri? Both, S.68F(1C) and 68Ff are in Chapter IV-A and it is contended by the petitioners that one cannot over-ride the other and a harmonious construction has to be given. A distinction between grant of a temporary permit under S. 68F(1C): (a) on a route or on its portion during the period of a draft scheme and its approval for that route; and (b) on a longer route covered by adraft scheme in respect of a portion of which an approved scheme exists is also pointed out and urged in support of the impugned order.
10. Several decisions have been cited by the counsel for the parties in respect of various contentions which have been noticed * earlier. Keeping in view the controversy which has occasioned this reference to a Full Bench and as its decision is sufficient for the disposal of this case, we have not gone into the other controversies nor referred to the decisions cited in that connection.
11. Both these Bench judgments were rendered prior to the decision of the Supreme Court in Adarsh Travels Bus Service v. State of U.P., which has also been referred to by the counsel for both sides.
12. In the case reported in M. R. Ama-subbamma v. S.T.A.T., A.P. (1982 LS (AP) 222) (supra) (confirmed by Bench in W.A. No. 888/1982) an application for grant of a temporary permit was made on a route covered by a draft scheme, a small portion of which was also covered by a route in an approved scheme. It is useful to extract the reasoning of the learned single Judge which reads as follows :
"..... Merely because a portion of the proposed route is covered by approved scheme, it cannot be said that no permits under S. 68F can be granted pending approval of the scheme. In such a case it is immaterial whether the approved scheme excludes the existing stage carriages on that route completely or partially. If the argument of Mr. Ramana Reddy is accepted, it would follow that if a route of 100 Kms. in respect of which a draft scheme is published is covered by an approved scheme to a distance of one or two Kms., no temporary permit can be granted under S. 68F pending the approval of the draft scheme. I do not think such a consequence was intended for, or is in public interest. It may be that, in a given case, if the approved route covers a major portion of the route later notified under S. 68C, the authorities may say that there is no need for issuing temporary permits under S. 68F. But that is different from saying that there is no power to issue such permits."
13. The learned Judge has also referred to the decision in Mysore, S.R.T. Corporation v. Mysore S.T.A. Tribunal, and another decision of a learned single Judge in W.P. No. 4475/1979 dated 12-10-1979. In the said Supreme Court case it is held that the grant of a temporary permit on a route covered by an approved scheme and inconsistent with its terms is not permissible. But, it was observed that inter-section of the route covered by an approved scheme does not amount to its traversing or over-lapping it. Apparently, there was no prohibition in that scheme in respect of routes inter-secting an approved route. The decision helps in making a distinction between a partial overlapping of an approved route and a mere inter-section for the purpose of grant of temporary permits, but this does not help in resolving the controversy. In the earlier judgment of the single Judge referred to above it was observed following a Bench decision that, a notified route (that is an approved route) cannot be read as including a portion of notified route. Such a statement, as a mere question of law, without reference to the terms of the scheme and keeping in view the definition of route in S. 2(28 A) which was inserted by Act 56/69 cannot be treated as good law. The reason in support of grant of such a temporary permit is contained in what is extracted from the judgment earlier.
14. The other Bench judgment in W.A. Nos. 881 and 889/19 has held that even if S. 68FF and 68F(1C) were operative in the same span of time and space the prohibition under S.68FF would over-ride the permission under S. 68F(1C).
15. The publication of scheme framed under S. 68C results in pertain restrictions for a limited period, that is, till the approval of , the scheme under S. 68D. After the approval the prohibition in the scheme will come into play in view of S. 68FF. There are provisions like S. 68F(1C) for grant of temporary permits during the interregnum. It is not unusual for schemes under S.68C to be framed for much longer routes (including Inter-State routes) which may cover portions, either small or large of routes which have been approved. Does such a notification of a draft scheme remove the prohibition in an approved scheme as provided by S. 68Ff in respect of the approved route? S.68A to 68D are provisions enabling grant of temporary permits during the interregnum between the draft under S.68C and approval under S.68D. It does not confer any rights for temporary permits contrary to any statutory provision or relevant factors like needs of travelling public. Any grant of temporary permit under S. 68F(1C) will have to be keeping in view any statutory bar including the prohibition imposed by the terms of scheme framed under the Act in view of S. 68FF. A scheme may provide for only partial exclusion and may not affect long distance routes. The bar under S. 68FF will only apply in terms of the scheme. It is expected that the authorities which frame the scheme and grant approval keep in view the interest of the travelling public as well as the apprehension of the Corporation that permitting private operators will sabotage the purpose of nationalisation and balance the two. Whether to exclude longer routes (in respect of which draft schemes have been published or not) which traverses small portions of the approved route or other routes which are having a small over-lapping will have to be considered by the authorities keeping in view the relevant considerations. In some cases instead of prohibition, corridor restrictions are imposed, that is not permitting a private operator to set down or pick up passengers on the over-lapping approved route. If any difficulty is found in the working of any scheme it may be rectified by the authorities by taking action for modification which is provided for under S. 68E of the Act S. 102 of the new Act of 1988 contains a simpler procedure. If in a given case modification is denied on irrelevant grounds or unreasonable delay judicial review is available. The view that permits could be issued subject to the terms of the approved scheme on routes having small over-lapping will lead to controversies about what is a small over-lapping. This will be left to be decided by various RTAs leading to inconsistent decisions.
16. A Constitution Bench of the Supreme Court in M/s. Adarsh Travels Bus Service v. State of U.P. (supra) has dealt with this aspect. The dispute in that case was whether after the approval of a scheme in respect of a particular route the existing operator on other routes, which had a common over-lapping sector with the nationalised (approved route) can continue to ply with corridor restrictions. It was contended by the existing operators that overlapping was on an insignificant portion and the revocation of the existing permits on the much longer different routes will not be in the interest of travelling public. In the first paragraph of the judgment itself the Supreme Court has stated that the answers to the question really turns on the terms of the scheme rather than on the provisions of the statute. It is also useful to extract paragraph 6 of the said decision which reads as follows :
"A careful and diligent perusal of S. 68C, S.68D(3) and S.68FF in the light of the definition of the expression 'route' in S. 2(28 A) appears to make it manifestly clear that once a scheme is published under S. 68D in relation to any area or route or portion thereof, whether to the exclusion, complete or partial of other persons or otherwise, no person other than the State Transport Undertaking may operate on the notified area or notified route except as provided in the scheme itself. A necessary consequence of these provisions is that no private operator can operate his vehicle on any part or portion of a notified area or notified route unless authorised so to do by the terms of the scheme itself. He may not operate on any part or portion of the notified route or area on the mere ground that the permit as originally granted to him covered the notified route or area. We are not impressed by the various submissions made on behalf of the appellants by their several counsel. The foremost argument was that based on great inconvenience which may be caused to the travelling public if a passenger is not allowed to travel, say, straight from A to B on a stage carriage, to ply which on the route A to B person X has a permit merely because a part of the route from C to D somewhere between the points A and B is part of a notified route. The answer to the question is that this is a factor which will necessarily be taken into consideration by the State Transport Undertaking before publishing the scheme under S. 68C, by the Government under S.68D when considering the objections to the scheme and thereafter either by the State Transport Undertaking or by the Government when the inconvenience experienced by the travelling public are brought to their notice. The question is one of weighing in the balance the advantages conferred on the public by the nationalisation of the route C-D against the inconveniences suffered by the public wanting to travel straight from A to B. On the other hand it is quite well known that under the guise of the so-called 'corridor restrictions' permits over longer routes which cover shorter notified routes or 'over-lapping' parts of notified routes are more often than not misutilised since it is next nigh impossible to keep a proper check at every point of the route. It is also well known that often times permits for plying stage carriages from a point a short distance beyond one terminus to a point a short distance beyond another terminus of a notified route have been applied for and granted subject to the so-called "corridor restrictions" which are but mere ruses or traps to obtain permits and to frustrate the scheme. If indeed there is any need for protecting the travelling public from inconvenience as suggested by the learned counsel we have no doubt that the State Transport Undertaking and the Government will make a sufficient provision in the scheme itself to avoid inconvenience being caused to the travelling public."
17. The counsel for the 3rd respondent has tried to distinguish this Supreme Court case on the ground that it was not dealing with the grant of a temporary permit under Section 68-F(1C) and the controversy was about the effect of implementation of an approved scheme on the existing permits. The said distinction does not make any difference on the ratio laid down by the Supreme Court. The Supreme Court has pointed out that there is no inconsistency between Section 68-FF and 68-F(1C) and the difficulty, if any, arises because of terms of the scheme, if adequate provision is not made while framing it or grant of its approval regarding partial overlapping. As a result, there is no difficulty in holding that a permit under Section 68-F(1C) cannot be granted on a route if it partially overlaps an approved route and is prohibited by the terms of the scheme in view of the provisions of Section 68-FF. Therefore, the Bench decision in W.A. No. 888/1982. dated 22-10-1982 confirming the judgment of the learned single Judge reported in M. Ramasubamma v. S.T.A.T., A.P., (1982 LS (AP) 222) (supra), is overruled.
18. In this case (W.P. No. 3528/1982) the temporary permit has been granted on the entire route covered by the approved scheme which is prohibited by its terms. It is not even acase of overlapping of a small portion. It has been granted even without any application.
19. In W.P. No. 7594/1986 the minor difference is that the draft scheme on the Inter-State route was published before the approved scheme. This will not make any difference in the conclusion reached earlier.
20. As a result, both the writ petitions are allowed and the temporary 'permits granted under Section 68-F(1C) of the Act in favour of respondent No. 3 in W.P. No. 3528 of 1982 and respondent No. 1 in W.P. NO. 7594 of 1986 are held to be illegal and quashed. No orders as to costs. Advocates for Rs.500/-each.
After the judgment was pronounced, an oral application for grant of leave to appeal to the Supreme Court was made on behalf of the respondents. The oral application for leave to appeal to the Supreme Court is rejected. Request for stay of operation of this judgment for a period of two months from to day is also declined.
21. Writ petitions allowed.