Madras High Court
Tamil Nadu State Transport Corporation ... vs The State Transport Appellate Tribunal on 21 February, 2005
Bench: Markandey Katju, D.Murugesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 21/02/2005
Coram
The Honourable Mr.MARKANDEY KATJU, Chief Justice
and
The Honourable Mr.Justice D.MURUGESAN
Writ Appeal No. 248 of 2005
and Writ Appeal No 266 of 2005
and
W.A.M.P.Nos. 431 & 471 of 2005
W.A.No.248 of 2005
Tamil Nadu State Transport Corporation Ltd.
Dharmapuri, formerly known as
Annai Sathya Transport Corporation Ltd.
Dharmapuri,
Rep. by its Managing Director. ... Appellant
-Vs-
1. The State Transport Appellate Tribunal
Chennai.
2. The State Transport Authority,
Chennai.
3. K.Suseelamma ..... Respondents
W.A.No.266 of 2005
The Managing Director,
Annai Sathya Transport Corporation Ltd.
Now known as
Tamil Nadu State Transport Corporation Ltd.
Dharmapuri. Appellant
vs.
1. The State Transport Appellate Tribunal
Chennai.
2. The State Transport Authority,
Chennai.
3. K.Suseelamma ... Respondents
Appeals filed under Clause 15 of the Letters Patent against the order
passed in W.P.Nos. 11607 & 17943 of 1996 dated 10.12.2004.
!For Appellant . Mr.R.Thiagarajan
Senior Counsel for
Mr.V.R.Kamalanathan
^For Respondent3 . Mr.AR.L.Sundaresan
:J U D G M E N T
THE HONOURABLE THE CHIEF JUSTICE These writ appeals have been filed against the common order dated 10 .12.2004 of the learned single Judge in Writ Petition Nos. 11607 & 17 943 of 1996.
2. Heard the learned counsel for the parties, and perused the records.
3. It appears that on 5.6.1962 a stage carriage permit was granted to the husband of the third respondent namely, Mr.K.Ramachandra Naidu by the State Transport Authority, Andhra Pradesh duly counter signed by State Transport Authority, Tamil Nadu on single point tax, and renewed from time to time upto 04.06.1980.
4. On 07.04.1975, the Government of Tamil Nadu by G.O.Ms.No.579, Home Department approved a scheme for nationalization of the Inter State Route Salem to Chittoor to be operated by the State Transport Undertaking of Government of Tamil Nadu, subject to maximum of 8 permits and minimum of 3 permits. On 03.06.1975, an Inter State Agreement was entered into between the State of Tamil Nadu and the State of Andhra Pradesh, vide G.O. Ms. No. 1000, Home Department, agreeing for the maximum number of 4 permits and minimum number of 2 permits for the said route. The Andhra Pradesh permit of Mr.K.Ramachandra Naidu for the inter state route Chittoor to Salem was re-allotted to him. On 18.06.1975, the approved scheme was published in the Tamil Nadu Government gazette. The permit of Mr.K.Ramachandra Naidu was saved under Entry 40 of Annexure II of the approval scheme.
5. Since the Draft Scheme contemplated exclusion of all private operators, and reserved all the permits on the said route for the State Transport Undertaking, the State Transport Authority, Madras by order dated 30.07.1980 rejected the application of Mr. K.Ramachandra Naidu for renewal of the permit stating that the approved scheme completely excludes private operators. The appeal of Mr.K.Ramachandra Naidu was also dismissed by the State Transport Appellate Tribunal, Madras by order dated 30.07.1980.
6. Against the order dated 30.07.1980, Mr. K.Ramachandra Naidu filed W.P.No.4343 of 1980, which was allowed by a learned single Judge of this Court on 13.10.1982. Against the order dated 13.10.1982 in W.P.No.4343 of 1980, M/s.Anna Transport Corporation preferred an appeal in W.A.No.675 of 1982 which was dismissed initially, but the matter was taken upto the Supreme Court. The Supreme Court remanded the matter to this Court, and ultimately W.A.No.675 of 1982 was allowed on 28.1 1.1984 by a Division Bench, and the order in W.P.No.4343 of 1980 was set aside and it was held that the nationalization scheme was valid.
7. On account of the judgment of the Division Bench of this Court dated 28.11.1994 in Writ Appeal No.675 of 1982, Mr.K.Ramachandra Naidu was directed to stop operating his vehicle on 30.11.1994, which he had been operating from 05.06.1980 on a temporary permit on single point tax duly counter signed by State Transport Authority, Andhra Pradesh. In the vacancy caused on account of stoppage of the stage carriage of Mr.K.Ramchandra Naidu, M/s. Anna Transport Corporation applied for the permit, and it was granted permit for the said route on 05.12.1 994. Aggrieved against the grant of permit in favour of M/s.Anna Transport Corporation, Mr. K.Ramachandra Naidu filed a revision before the State Transport Appellate Tribunal, Madras being Revision Petition No.3 of 1995.
8. Against the judgment of the Division Bench dated 28.11.1994 in Writ Appeal No.675 of 1982, Mr. K.Ramachandra Naidu filed S.L.P in the Supreme Court, and special leave was granted, and the Civil Appeal was taken on the file of the Supreme Court as Civil Appeal No.12854 of 1996.
9. To complete the narration of facts, it may be mentioned that Mr. K.Ramachandra Naidu had filed Appeal No.974 of 1980 before the State Transport Appellate Tribunal, Chennai against the order dated 30.07.1980 of the State Transport Authority rejecting his application for renewal of his permit. The said appeal was dismissed by the State Transport Appellate Tribunal on 25.09.1995. The petitioners revision petition no.3 of 1995 against the grant of permit in favour of M/ s.Anna Transport Corporation was also dismissed on 10.04.1996 by the Tribunal. Aggrieved against the aforesaid orders, Mr. K. Ramachandra Naidu filed Writ Petition Nos. 11607 & 17943 of 1996, in which the impugned order has been passed.
10. During the pendency of the petition, Mr. K.Ramachandra Naidu died, and his wife Mrs. K.Suseelamma has been substituted, and she is respondent no.3 in these appeals.
11. While the aforesaid developments were taking place, the State of Tamil Nadu enacted Tamil Nadu Motor Vehicles (Special Provisions) Act 41/92, and the same received the assent of the President of India on 31.07.1992, and the said Act came into force with retrospective effect from 04.06.1976. Under the provisions of this Act, small operators with less than five Stage Carriage Permits, who were granted permits, and which were valid between the period 04.06.1976 and 30.06.1990, were saved notwithstanding anything contrary in the Motor Vehicles Act, 1939, or the Motor Vehicles Act, 1988, or any draft scheme, or approved scheme thereunder. The right of renewal of the said permits was also saved.
12. The Supreme Court by order dated 30.10.2003 disposed of Civil Appeal No.12854 of 1996. We are quoting the entire order of the Supreme Court, which reads as follows: -
The appellant held a permit on the route Chittoor to Salem (via) Palamaner, V.Kota, Kuppam, Krishnagiri and Dharmapuri. The permit expired on 5.6.1983 and renewal was applied for vide application dated 31.3.1983 for a period of five years. The renewal was refused on the ground of the route having been nationalized. The appellant sought for renewal on the ground that inspite of nationalization he was entitled to renewal being a pre-existing operator and saved from the operation of the scheme. His plea has been turned down by the Transport Authority as also by the High Court. That is the issue arising for decision in this appeal.
Mr.G.L.Sanghi, learned counsel for the appellant invited our attention to the fact that when this matter was pending in the High Court the Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992 (Act No.41 of 1992) came into force and was given a retrospective operations. He submits that this Act conferred on the appellant herein an additional right for renewal of permit on account of his being a small operator. However, still the Transport Authority rejected the prayer for renewal ignoring the provisions of the Act. A writ petition claiming the relief for renewal under Act No.41 of 1992 is stated to be pending before the High Court of Madras and therein this plea is to be adjudicated upon as also the plea that the appellant has been discriminated against by denying the prayers for renewal while the prayer for renewal made by similarly situated operators have been allowed. The learned counsel further submitted that in the event of his plea being upheld by the High Court the present appeal may be rendered infructuous and may not call for a decision on merits.
The writ petitions filed by the appellant and stated to be pending in the High Court are CWP Nos. 11607/1996 and 17943 of 1996. It is further submitted that the pleadings are complete and both the writ petitions are ready for hearing.
In the abovesaid situation, we request the High Court of Madras at Chennai to take up the above said writ petitions for hearing and dispose of the same after hearing the learned counsel for the parties as early as it can and in any case within a period of 3 months from the date of this order being brought to the notice of the High Court. We allow the appellant liberty of making a mention before the Honble The Chief Justice of the High Court. The learned counsel for the respondent has assured to co-operate with the hearing of the writ petitions in the High Court.
The hearing in this appeal is adjourned by four months awaiting the decision by the High Court.
13. In pursuance of the directions of the Supreme Court in its order dated 30.10.2003, both the writ petitions (W.P. Nos. 11607 and 17943 of 1996) were disposed of by the judgment of the learned single Judge dated 10.12.2004. Aggrieved against the judgment, these appeals have been filed by the Tamil Nadu State Transport Corporation Limited.
14. We may mention that Writ Petition No.2656 of 2005 was filed by legal heir of Mr. K.Ramachandra Naidu before this Court for a Writ of Mandamus to grant permit to the petitioner, and stop the vehicle operated by the State Transport Corporation in respect of the route Salem to Chittoor. By interim order dated 29.01.2005, this Court restrained the Corporation from plying its vehicles on the said route.
15. Having heard the learned counsel for the parties, we are of the opinion that there is no merit in these appeals.
16. No doubt, if the Tamil Nadu Act 41 of 1992 had not been enacted respondent no.3 would have no right to ply her vehicle on the route in question, since there was total exclusion of private operators on the said route. However, the legal position has totally changed after the enactment of Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992 (Act No.41/1992). There is no dispute that respondent no.3 is a small operator as defined under the Act. Tamil Nadu Act 41 of 92, in our opinion, will prevail over the provisions of Motor Vehicles Act, 1939 or 1988 wherever there is inconsistency in view of Article 254(2 ) of the Constitution of India, since it has received the assent of the President.
16. The validity of Tamil Nadu Act 41 of 92 has been upheld by the Supreme Court in Thilagavathy v. Regional Transport Authority, (1995) 1 SCC
456. The provisions contained in the said Act (except Sections 6 & 7) have come into force with retrospective from 04.06.1976 and remained in force upto 30.06.1990. Section 3 of the said Act provides that notwithstanding anything contained in a draft scheme or approved scheme, the Regional Transport Authority may on an application in accordance with the Rules made in this behalf, grant a permit or renew a permit to a small operator to ply his stage carriage on the entire route covered by the draft scheme or approved scheme, and the Explanation to the said Section defines small operator as a person holding five or less stage carriage permits notwithstanding that all or any such stage carriage permits had expired after the date of commencement of the Act. Section 5 of the said Act provides that Sections 3, 4 and 6 shall have effect notwithstanding anything inconsistent therewith contained in Chapters V and VI including Section 98 of the Motor Vehicles Act. Section 9 of the said Act provides that any reference to any of the provisions or any chapter of the Motor Vehicles Act shall, for the period between 04.06.1976 and 30.06.1989 be construed as reference to the corresponding provisions or chapter of the Motor Vehicles Act, 1939 or the Motor Vehicles Act, 1988. Section 10 of the said Act also saves all proceedings notwithstanding anything contained in Chapter V or Chapter VI including Section 98 of the Motor Vehicles Act.
17. In view of the above provisions of the Tamil Nadu Act 41 of 1992 , even if the approved scheme dated 07.04.1975 is valid, and excludes all private operators, yet respondent no.3 being a small operator is, in our opinion, saved by the provisions of the Tamil Nadu Act 41 of 92, since the stage carriage permit, which was granted in favour of Mr. K.Ramachandra Naidu for the route in question, was renewed and was valid upto 04.06.1980, which date falls between the two crucial dates namely, 04.06.1976 and 30.06.1990. Hence, in our opinion, K. Ramachandra Naidu (and after his death his legal heir i.e., his wife, who is the third respondent in these appeals), was entitled to renewal of the said permit despite the approved scheme dated 07.04.1975. Thus, we are of the opinion that the judgment of the learned single Judge is entirely correct.
18. In the result, we see no force in the writ appeals and they are dismissed. No costs. Consequently, W.A.M.Ps are also dismissed.
Index:Yes Internet:Yes pv/ Copy to:
1. The State Transport Appellate Tribunal Chennai.
2. The State Transport Authority, Chennai.
3. The Managing Director, Annai Sathya Transport Corporation Ltd.
Now known as Tamil Nadu State Transport Corporation Ltd.
Dharmapuri.