Andhra HC (Pre-Telangana)
Apsrtc, Musheerabad, Hyderabad vs State Transport Appellate Tribunal, ... on 22 January, 1999
Equivalent citations: 1999(2)ALD60, 1999(2)ALT42
Author: B.S. Raikote
Bench: B.S. Raikote
ORDER
1. These writ petitions raise common questions of fact and law. Hence, 1 am disposing of by this common order.
2. The petitioner, Andhra Pradesh State Transport Corporation in all these writ petitions has challenged the judgment and order of the State Transport Appellate Tribunal, A.P., Hyderabad, by which order, the order of the Regional Transport Authority refusing to grant pakka stage carriage permits in respect of the respective routes pertaining to the petitioners has been set aside by granting direction to issue permits. All these writ petitions pertains to the order dated 7-7-1997 passed by the State Transport Appellate Tribunal, A.P., Hyderabad on its file in A.P. Nos.207 of 1995, 210 of 1995, 212 of 1995, 211 of 1995, 209 of 1995, 205 of 1995 and 206 of 1995, by which the order of the Regional Transport Authority, Krishna at Vijayawada dated 19-8-1995 passed in R.No. 75247/A3/94 has been set aside.
3. The learned senior Counsel Sri L. Nageshwara Rao appearing for the Corporation, vehemently assailed the order of the Appellate Tribunal, and on the other hand, the learned senior Counsel Sri Ramana Reddy, appearing for the respondent-operators strenuously supported the order of the Appellate Tribunal. Before adverting to the respective contentions, it is necessary for me to note few facts of these cases. The respondents in all these writ petitions filed applications for the grant of pakka stage carriage permits, regarding the route mentioned in their applications. The Regional Transport Authority, rejected those applications, by observing that R.T.C.'s network is well based and the roads on the proposed routes are narrow, criss-cross and would be hazardous to public safety. It further observed that if the routes proposed by the operators are compared to the R.T.C. routes, it would be apparent that the operators carved out the route in such a way that the approved schemes are not effected, but the public safety would be sacrificed, since the most part of the route lies in the narrow streets of the city. These orders of the Regional Transport Authority were challenged in appeals before the Appellate Tribunal. The said Tribunal allowed those appeals directing the respondent No.2, the Regional Transport Authority, to issue mofussil permits to the operators regarding the routes in question, within four months, on the operators producing necessary and valid records.
4. The learned senior Counsel appearing for the petitioner-Corporation contended that the order of the respondent No.1-State Transport Appellate Tribunal is illegal and without jurisdiction. He contended that the impugned order is passed without assigning any reasons and as such it is arbilrary, therefore, it is liable to be set aside. Secondly, he urged that the respondent No.1 failed to consider Rule 258(2)(iii) of the A.P. Motor Vehicles Rules 1989 (in short 'the Rules') and other rules, before directing grant of permits in favour of the respondent-operators. The route applied for by the operators being predominantly town service in nature, the Tribunal should not have directed for issuing of the mofussil permits. He also submitted that the Tribunal failed to consider all the materials on record, including sketches, which show that the operators have camouflaged the town service route as if it is a mofussil service by adding few kilo metres on the either side of the town service routes, so as to give a pretence that the route does not originate within the route meant for town service. He contended that by suffixing 1 k.m. or 3 k.m. on either side to the town service, the route cannot be termed as mofussil service. He relied upon number of judgments in support of his contentions, which I will be referring to shortly. He also submitted that under Section 68(3)(ca) of the A.P. Motor Vehicles Act, 1988 (in short 'the Act'), it is for the Government to formulate the route and operators cannot propose any route of their choice and so far, the Government has not formulated such routes for the purpose of stage carriage operators. Even otherwise, he submitted that, the proposed routes by the operators overlap the schemes and as such they are prohibited. Moreover, the APSRTC has been operating effectively in all these routes and the private operators should not have been permitted. Thus, there is an error apparent on the face of the record and as such the impugned orders are liable to be set aside by exercising the power under Articles 226 and 227 of the Constitution of India. As against this, the learned senior Counsel Sri Ramana Reddy appearing for the respondent-operators contended that the Section 68(3)(ca) of the Act is not relevant for the purpose of these cases. The routes applied for by the operators are out side the town service routes. At any rate, the operators have the right to carve out their own routes and such carving out the routes is not prohibited by the Act and the Government has not formulated any such routes. When the routes applied for are mofussil routes, the Tribunal did not commit any error in directing for the issue of mofussil permits. The old procedure provided under Section 47 of the Act has been dispensed with by liberalising the transport system and the operators are entitled to carve out their own records. The schemes referred to by the Corporation exempt the mofussil routes. Therefore, the alleged overlapping has no effect. He further submitted that the order of the Tribunal is a well reasoned order and there is no error apparent on the face of the record, calling for the interference at the hands of this Court. The finding recorded by the Tribunal, that there is no overlapping and the route in question is a mofussil service does not call tor interference. He further submitted that the order of the Tribunal also has taken into account the joint inspection report conducted at the instance of the parties and the Corporation did not object for such a report. In these circumstances, such finding based on joint inspection report and sketches annexed to the report, does not call for interference. He further submitted that there was no argument with reference to the schemes before the Tribunal and the same cannot be urged in the writ petitions and the joint survey also reveals that there is no overlapping. At any rate, the Tribunal exercising the discretion vested in it as a fact finding Court, has directed for the issuance of the mofussil permits and the said order does not call for interference. He also relied upon number of judgments in support of his contentions, which I will be referring to shortly in the course of my discussion. Having regard to the contentions urged by both the Counsels, I have to see whether the order of the respondent No.1-the State Transport Appellate Tribunal, A.P., Hyderabad calls for interference of this Court under Articles 226 and 227 of the Constitution of India.
5. In order to appreciate the issue in controversy, I have to note few admitted facts. In all these writ petitions it is admitted that except 1 k.m. or 3 k.ms. on either ends of the route, the rest of the route is within the municipal limits of Vijayawada. The route applied for by the private operators overlaps the town service routes as per the scheme in G.O. Ms. No.42 dated 24-2-1992. But the defence is, such overlapping has no effect, since the route applied for by the private operators is a mofussil service, but not town service. The scheme published in G.O. Ms. No.42 states that "the scheme shall not effect the mofussil routes". Thus, the contention of the respondents-private operators is that, notwithstanding such overlapping on the major portion of the route proposed, they are exempted from the scheme, such it is a material service, that is granted in favour of the respondent-operators. As against this argument, the learned Counsel for the petitioner-Corporation submitted that since the route proposed by the private operators overlaps the town service, vide G.O. Ms. No.42, the alleged mofussil service granted in favour of the private operators, in substance, is a town service, but camouflaged as mofussil service, by describing town service as mofussil service. The town service can never become a mofussil service, when in substance, the major portion of the route proposed by the operators overlaps the town service, except 1 k.m. or 3 k.ms. on either ends of the proposed route lying outside the municipal limits. Me further contended that under Rule 258(2)(ii) of the Rules, the town service may extend upto 8 k.ms. beyond the limits of the municipality or town. He further submitted that no route shall be determined as both town and mofussil service routes in view of Rule 258(2)(iii) of the Rules. On the other hand, the learned senior Counsel for the respondent-operators submitted that Rule 258 of the Rules is irrelevant for the purpose of this case, as held by the Tribunal. Therefore, the route in question has to be determined whether it is town service or mofussil service, without looking into Rule 258 of the Rules. It appears that Tribunal appears to have accepted similar contention urged before it. The Tribunal in paragraph No. 10 of its judgment (in AP No.210 of 1995) held as under:
"The advocate for the appellant argued in this case that Rule 258 is not at all applicable and G.O. Ms. No.42 of 1992 is pertaining to segments of town service routes and nothing to do with mofussil route and the arguments of the advocate for APSRTC have no force in this case. Since 1 came to the conclusion that the route in question is mofussil route, the arguments of the advocate for the appellant got force. Rule 258(3) deals with that no route shall be determined as both town and mofussil service routes. But this proposition has no application in the present case as I noted, that there is clear mofussil route."
From the judgment extracted above, it is clear that the Tribunal is of the opinion that Rule 258(3) of the Rules is not relevant for the determination of this case. The Tribunal without considering the effect of Rule 258, held that the route in question is a mofussil service on two counts viz., 1) that there are villages beyond the municipal limits and 2) in the route chosen by the private operators, there is small portion which is unserved. It further observed that about 2 k.ms. distance on one side i.e., at the starting point and about a distance of 4.4 k.ms. on the others side, falls beyond the limits and there is unserved portion to an extent of 5.2 k.ms., therefore, it held that the route proposed by the private operators is a mofussil service. I have to note at this stage itself that mofussil service route or a town service route is not defined either under the Act or under the Rules. Section 2(38) of the Act defines "route", meaning a line of travel which specifics the highway which may be traversed by a motor vehicle between one terminus and another. From this definition it is clear that the route is a line in between one terminus on one end, and the other terminus on the other end, of the line of travel. But Rule 258 of the Rules gives an indirect description as the nature of town service. Since the argument of the learned Counsel for the petitioner is based on Rule 258 of the Rules, I think it appropriate to extract the said Rules as under:
"258. Fixation of stages for carriages :--
(1) In the case of stage carriages, the Regional Transport Authority shall, after consultation with such other authority as it may deem desirable, fix stages on all bus routes except town service. The maximum distance of each stage shall not ordinarily exceed 6.4 kilometres. When stages are so fixed, fares shall be collected according to stages.
(2) The Regional Transport Authority shall, subject to the following restrictions, determined which are town service routes:
(i) at least one terminus of every town service shall lie within the limits of a Municipality or any built up place notified in the Andhra Pradesh Gazette as 'town' for this purpose by the Regional Transport Authority concerned, with the prior concurrence of the State Transport Authority;
(ii) no route of town service shall extend more than 8 kilometres beyond the limits of the Municipality or town from which it starts, provided that this restriction shall not apply to any town service routes, which were in existence on the date of coming of these rules into force or in respect of those routes for which specific permission of the Transport Commissioner is obtained;
(iii) no route shall be determined as both town and mofussil service routes."
Thus Rule 258 Clause (1) provides that the authority may fix the stages on all the bus routes, except town service. Under Clause (2) of Rule 258, Regional Transport Authority shall determine which are town service routes, subject to the restrictions provided under sub-clauses (i), (ii) and (iii). From the reading of the above Rule, it follows that at least one terminus of every town service shall lie within the limits of Municipality and no town service route shall extend more than 8 k.ms. beyond the limits of the Municipality or town and no route shall be determined born as town service route as well as mofussil service routes. From Rule 258 of the Rules, an inference is possible, as to the nature of mofussil service different from the town service. A mofussil service is one, which is not a town service, and a town service is one which originates in the Municipality or town and its route may extend upto 8 k.ms. beyond the limits of the Municipality or town, and one and the same route cannot be termed as both mofussil and town service. Thus, from the entire reading of the Rule 258, one can say that a town service originating in the town or Municipality may extent upto 8 Kms. beyond the limits of Municipality or town. Thus, any route originating in town or Municipality upto 8 k.ms. beyond the Municipality or town limits, would be town service route, and such a town service cannot be termed as a mofussil service at the same time, in terms of Rule 258(2)(iii) of the Rules. But the learned Judge of the Tribunal refusing to look into Rule 258 of the Rules, described the mofussil service in his own way stating that there are villages beyond the municipal limits and there is a small portion unserved, therefore, the route in question is a mofussil route. But in my opinion, this is not an adequate description, in view of the fact that beyond municipal or town limits upto 8 k.ms., there could be villages, even then, the route continues to be a town service for the purpose of Rule 258. The Tribunal also observed that the route proposed by the private operators is a mofussil service only because, on one point the route extends by 2 k.ms. from the town limits and on the other point, it goes beyond 4.4 k.ms. of the Municipal limits and there is a small portion of 5.2 k.ms., which is not served, therefore, it is a mofussil service. But the judgment clearly noted that the total length of the route is 22 k.ms. within the Vijayawada Municipality and the total length on either side of the route would be only 5.6 k.ms. and if that is so, in substance the route of 22 k.ms. in substance is a mofussil service. Hence, this approach again is not consistent with the object of Rule 258. What in substance is being done in this case is, that one and the same route is being treated as both mofussil service as well as town service, only because the said route extends 2 k.ms. beyond the municipal limits on one end and 5.6 k.ms. beyond the municipal limits on the other end. The fact that the route extends by few kilometres on either sides of the municipal limits cannot make a route of mofussil route, when in substance it is a town service for at least 90 per cent of the route. What has to be looked into is the nature of the route proposed by the private operators. Admiltedly, the said route overlaps the scheme provided under G.O. Ms. No.42. But it is sought to be excluded from the scheme only because the proposed route is described as a mofussil service, having its originating points outside the municipal limits by 2 or 3 k.ms. From this fact it follows that the private operators have camouflaged the town service into a mofussil service, by adding 3 to 5 k.ms. on either sides of the terminus outside the municipal limits. In fact, in substance, the route proposed by them is a town service, overlapping the scheme provided under G.O. Ms. No.42. At any rale, the proposed route in question applied by private operator, in substance is a town service within 8 k.ms. on either side of the route, in terms of Rules, though they have described it as a mofussil service. Without looking into this aspect of the case and without considering the effect of Rule 258, the Tribunal has erred in holding that the route proposed by the private operators is a mofussil service, whereas in substance it is a town service route, from the description of the town service provided under Rule 258 of the Rules. Similar are the facts in the other writ petitions. Thus, I find that the Tribunal mis-directed itself in determining the proposed route as mofussil route, by refusing to look into Rule 258 of the Rules.
6. It is not in dispute that G.O. Ms. No.42 provides an approved scheme for town service bus routes in Vijayawada. But in paragraph No. 11 of the judgment, the Tribunal states that "the question of town service routes need not be looked into". It further observes that the aim of the private operators in carving out stages would clearly show that the route in question is a mofussil route. In making these observations, what the Tribunal failed to see is, that the private operators are trying to describe the route within the municipal limits as mofussil route even though it is town service route covered by G.O. Ms. No.42. By giving a different name and by extending the route 2 or 3 k.ms. outside the municipal limits on either side of the route, the character of the town service route would not be effected. The Tribunal failed to see that the private operators have camouflaged the town service route as a mofussil service by shifting both the terminus outside the municipal or town limits by 3 to 5 k.ms., on either side of the route. Thus, the same town service is being described as a mofussil service and this cannot be done in view of Rule 258(2)(iii) of the Rules.
7. However, the learned Counsel for the respondent-operators submitted that after 1994 amendment to the Act, there is liberalisation of the transport system and private operators are entitled to carve out their own route. As against this argument, the learned Counsel for the petitioner-Corporation submitted that under Section 68(3)(ca) of the Act, it is for the Government to formulate routes for plying stage carriages and not for the private operators. He stated that this Clause (3)(ca) to Section 68 has been inserted by virtue of Act No.54 of 1994 with effect from 14-11-1994 and from this clause it is clear that unless the Government formulates the route for piying stage carriages, the authorities cannot sanction any route formulated by private operators. He further submitted that, notwithstanding such liberalisation of the transport systetn, the power stands vested with the Stale Government to formulate routes. But the learned Counsel for the respondent operators contended that the Rule contemplated under Section 68(3)(ca) of the Act is the same Rule contemplated under Chapter VI of the Act, for which the Government may prepare a scheme so as to create a monopoly in favour of the State Transport Undertaking and Chapter VI has been given overriding effect under Section 98 of the Act. In view of this controversy, the short point that I have to see is what is the effect of Section 68(3)(ca) of the Act, in relation to Chapter VI of the Act. In my opinion. Section 68(3)(ca) found in Chapter V is a general Section under which it is always for the Government to formulate the routes for plying stage carriages. Section 68(1) provides that the State Government shall by notification constitute a State Transport Authority or Regional Transport Authority to exercise and discharge the powers and functions conferred under this chapter (i.e., Chapter V) on such authorities, and under Clause (3) of the said Section, such authorities constituted shall give effect to the directions issued under Section 67 and exercise and discharge the powers and functions specified under Clauses (a), (b), (c) and (d). Clause (ca) specifically provides that so far as formulation of the routes is concerned, it is for the Government to formulate the routes for plying the stage carriages. Thus from Clause 68(3Xca) it is clear that it is always for the Government to formulate the stage carriages and under Clause (4), the authorities shall discharge their powers and functions and give effect to such directions issued by the Government. From this it follows that the power to formulate routes for plying stage carriages has been reserved in favour of the State Government only. Neither the authorities specified under Section 68, nor any citizen can carve out any route. Section 98 found under Chapter VI is a specific provision contemplated to create monopoly in favour of the State owned Corporations, in terms of Article 19(2)(g) of the Constitution. The scheme contemplated under Section 99 could cover the routes specified under Section 6S(30(ca) or some other routes, the scheme itself contemplates. In other words the object of Chapter VI is that, the scheme provided under Section 99 would create a monopoly in favour of State owned Corporation in terms of the scheme, and such monopoly can be provided also on the routes provided under Section 68(3)(ca). Thus, by virtue of Section 98, the route covered by the scheme has been given overriding effect, in the sense that private operators cannot complain of the exclusion of their rights either total or partial. Thus, I find that the route contemplated under Section 68(3)(ca) is a route that is different from the route contemplated by the scheme formulated under Section 99 of the Act. Therefore, the contention of the learned senior Counsel Sri Ramana Reddy appearing for the respondent-operators that the route contemplated under Section 68(3)(ca) is the same route provided by the scheme under Section 99 of the Act, cannot be accepted. Hence it follows that it is always for the Government to formulate the routes for plying stage carriages under Section 68(3Xca) of the Act and neither the State Transport Authority, nor the Regional Transport Authority, nor any citizen can formulate such a route. Since the Government has not formulated the route now proposed by the private operators, the private operators could not have been sanctioned the permits on the route proposed by them. Even if the case is looked from this angle, it is clear that the order of the Tribunal issuing directions to issue mofussil route permits on the proposed route in question is illegal and contrary to the Section 68(3)(ca) of the Act. In this view of the matter, it is clear that the order of the Tribunal failed to consider the nature of the route proposed by the private operators. What is prohibited cannot be achieved by circumventing the scheme, by circumventing the law and by camouflaging the route. What has to be looked into is the predominant nature of the route proposed by the private operators. In fact, in similar circumstances, the Hon'ble Supreme Court considered the nature of the mofussil route in the light of Rule 282(2) of the Rules in the decision in C. Kasturi v. Secy., Regional Transport Authority, . That was a case where the appellants were miming the stage carriages falling on the town service Tirupathi on the basis of length of temporary permits issued from time to time. Under an administrative memorandum, the town service stood extendable to a distance of 8 k.ms. from the municipal limits. When the appellants were prohibited to run the town service upto 8 k.ms., on the basis of such an administrative memorandum, a writ petition was filed contending that the town service could not be extended by 8 k.ms. By considering the scheme and also Rule 282(2) of the Rules, the Hon'ble Supreme Court held as under:
"14. It would, thus, be clear that once a notified draft scheme has been approved and published, the private operators operate their services on the notified route strictly in accordance with the scheme only and within the exceptions engrafted thereunder. By necessary implication, the "town service" as defined in Rule 282(2Xii) has to be read subject to the scheme in Chapter IV-A of the repealed Act. If so read, Clauses 2, 3 and 4 are to operate as an exception and they provide only a right to overlap not more than 8 k.ms. in the notified route. Otherwise, the town service will cease to be town service and would be transformed into a mofussil route and the private operator would run his stage carriage along the line of the notified route which is impermissible."
In the instant case, the mofussil services for which permits are sought, ceases to be a mofussil service in substance, the moment the route appl ied for covers the major portion of the town service, and it would be impermissible under the scheme provided under G.O. Ms. No.42. Therefore, by describing the route as mofussil service, the operators proposed to operate town service contrary to the scheme in terms of G.O. Ms. No.42. Moreover a Division Bench of this Court in the decision reported in-G. K Rao v. APSRTC, Musheerabad, 1997 (5) ALD 240, had an occasion to consider a situation in which under the guise of calling a town service, the private operator proposed to operate on a mofussil route. The said judgment is approved in WA No.306, 307, 308 and 309 of 1997 dated 4-4-1997. The Division Bench of this Court, quoted the said judgment as under:
"Merely because the approved scheme exempts holders of stage carriage permits in respect of town service routes under the guise of calling it a town service route, a private operator cannot obtain a permit to ply on the route contrary to the terms of the approved scheme. It is not in dispute that the route is 25 k.ms. and allegedly called town service route although 2.5 k.ms. distance only is within the municipal limits and almost the entire route is nationalised as a mofussil route".
In WA No.306 of 1997 and batch, the town service was exempted from the scheme. The proposed town service by the operator for the entire route of 25 k.ms. was described as town service even though only a distance of 2.5 k.ms. was within the municipal limits. Taking the entire nature of the route, the Division Bench held that the route in question in substance is a mofussil route, for which the operator was not entitled to ply the stage carriage. In the instant case also, a person wants to operate a town service under the guise of a mofussil service. From the judgment of the Supreme Court reported in C. Kasturi's case (supra) and also from the Division Bench judgment of this Court in G. V. Rao's case (supra), it is clear that the nature of the route whether mofussil or town service has to be determined with reference to Rule 282 of the Rules. In view of this declared law holding the field, the Tribunal should not have refused to consider the effect of Rule 258 of the Rules, while considering the nature of the proposed route in question. Thus, there is error apparent on the face of the record, on the admitted facts only.
8. It is not in dispute and it cannot be disputed that the scheme is the law as held by the Supreme Court in the decisions reported in M/s. Adarsh Travels Bus Service v. State of U.P., , and Sam Krishna Verma v. State of UP., AIR 1992 SC 1988. In the said judgments, the Hon'ble Supreme Court stated that even after the new Act, the corridor protection to private operators is not permissible, in view of the overriding effect given to Chapter VI of the Act.
9. For the above reasons, I am of the opinion that the judgments and orders of the Tribunal cannot be sustained. The Tribunal also has not considered the reasoning given by the Regional Transport Authority that the proposed route falls on the narrow and crisscross routes and hence would be hazardous to public safety. On such a route if the buses belonging to the Corporation and also the private operators are allowed to ply, definitely it would be hazardous to the public safety and by permitting the private operators, public safety cannot be sacrificed, as opined by the Regional Transport Authority. At any rate, the Tribunal did not consider the nature of the route with reference to Rule 258 of the Rules and as such its findings are vitiated by law and procedure. In view of these conclusions, 1 think it is not necessary to consider the judgments cited on either side regarding error apparent on the face of the record and also the power of the High Court to interfere with the orders of the authorities under Articles 226 and 227 of the Constitution of India. For the above reasons, in my opinion, the impugned orders are liable to be interfered with under Articles 26 and 227 of the Constitution of India. Accordingly, I pass the order as under:
10. The writ petitions are allowed with costs. Orders of the State Transport Appellate Tribunal, A.P., Hyderabad, respondent No.t in all the writ petitions are quashed, by restoring the orders of the Regional Transport Authority, Krishna at Vijayawada, respondent No.2. Fee of the advocate for the petitioner-Corporation is fixed at Rs.5,000/-.