Madras High Court
N. Rajendran vs The State Of Transport Appellate ... on 23 January, 2008
Equivalent citations: AIR2008MAD156, (2008)2MLJ783, AIR 2008 MADRAS 156, 2008 (4) ALL LJ NOC 927, 2008 A I H C (NOC) 525 (MAD), (2008) 2 MAD LJ 783
Author: S. Manikumar
Bench: S. Manikumar
ORDER S. Manikumar, J.
1. The petitioner has sought a Writ of Certiorari to quash the order of the first respondent dated 06.10.2004 in Appeal No. 1088/03/A4 and for further orders.
2. Brief facts leading to the Writ Petition are as follows:
The petitioner, is a stage carnage operator, operating his vehicle bearing Registration No. TN 23 B 5819 on the route, Latteri to Kill Arasambut. The third respondent was granted a Mini Bus Permit to ply on the route "Vellore ARR Police Quarters to Avarampalayam" by the Regional Transport Authority, Vellore, the second respondent, in proceedings dated 11.09.2000. The third respondent has made an application for grant of Spare Mini Bus Permit to the second respondent. By order dated 30.06.2003, the second respondent has rejected the said application. Thereafter, the third respondent filed an appeal No. 1088 of 2003 before the State Transport Appellate Tribunal and by order dated 06.10.2004, the Tribunal set aside the order of the second respondent and directed him to reconsider the grant of Spare Mini Bus Permit. Aggrieved by the same, the petitioner has preferred the present Writ Petition.
3. Mr. Krishnappan, learned Senior Counsel appearing for the petitioner inter-alia contended that,
(a) The Vellore District is covered by an area approved modified scheme approved in G.O.Ms. No. 1525, Home (Transport. III), dated 17.11.1999 and published in the Government Gazettee on the same day. As per the scheme, no private operator is entitled to the grant of any permit of stage carriage except for mini bus permit for a total distance of 20 kms, out of which 4 kms, can be in the served sector. Apart from the maximum/minimum number of route buses fixed for the State owned corporation in addition to the number of vehicles intended to be kfept in reserve to maintain the service and to provide for special occasion only 250 mini buses have been fixed for private operations without any reserve vehicles for them. There is no mention in the area scheme regarding the grant of permit for any spare mini bus for the mini bus operators and therefore, the order of the first respondent holding that the spare bus permit can be granted, is contrary to the approved scheme of nationalisation.
(b) The order of the first respondent is without jurisdiction in so far as interpretation placed on Section 72(2)(xvii) of the Act and Rule 176(7) of the Tamil Nadu Motor Vehicles Rules, 1989. The grant of mini bus permit is provided by a scheme of nationalisation formulated under Chapter VI. Further, in terms of Section 98, the provisons of chapter VI overrides the provisions of Chapter V and shall have effect notwithstanding anything inconsistent there with contained in Chapter V or any other law for the time being in force. Therefore, the learned Senior Counsel has contended that an application made to the Regional Transport Authority by any one seeking permit has to be considered by the authorities with reference to the provisions of Chapter V and VI together. As the provisions of Chapter V under which the permit is sought are regulated subject to provisions of Chapter VI, by reasons of the overriding effect given to the latter by Section 98 of the Act, Section 72 of the Motor Vehicles Act or Rule 176(7) of the Tamil Nadu Motor Vehicles Rules, will have no application and consequently, the order of the first respondent is liable to be set aside.
(iii) Learned Senior Counsel further submitted that as per Section 80 of the Motor Vehicles Act, the authority concerned is not supposed to ordinarily refuse the grant of a permit. But in terms of Section 104 of the Act contained in Chapter VI, there is no prohibition against the grant of any such permit except in accordance with the provisions of schemes notified under Section 103 of the Act. The implication would foxe that an Authority, considering an application for the grant of a permit under Section 80, can hardly afford to ignore the disabling provisions of Section 104 of the Act. In the absence of provisions of grant of spare mini bus permit in the scheme, there is a disabling factor to grant such a permit and therefore, the order of the first respondent is without jurisdiction and the third respondent is not entitled to spare bus permit.
4. Mrs. Radha Gopaian, learned Counsel for the third respondent raised a preliminary objection to the maintainability of the Writ Petition on the ground that the petitioner is not an aggrieved person. Referring to Section 70(d), Section 88(8) of the Motor Vehicles Act and Rule 176(7) of the Tamil Nadu Motor Vehicles Rules, she submitted that the holder of the mini bus permit is entitled to keep a vehicle in reserve to maintain continuity in service and use the same on special occasions for the convenience of passengers.
5. Placing reliance on the orders of this Court in W.P. No. 37848 to 37850 of 2002, dated 07.10.2002 and W.P.Nos.33704 to 33710 of 2007, dated 25.10.2007, she further submitted that when the statutory provisions or rules applicable to stage carriage permits are equally applicable to mini bus permits, the difference being only In the seating capacity of vehicle, there cannot be any valid objection for grant of spare mini bus permits to be maintained by the omni bus operators. Considering the object behind grant of reserve permit, i.e., to maintain continuity in service, grant of mini bus permits will not amount to increase of permits on the route approved by the scheme. She further submitted that the validity and term of reserve permit is co-terminus with that of the original permit and if the original permit is suspended or cancelled or lapsed, the reserve permit granted to the spare mini bus also will be ineffective and under such circumstances, it cannot be treated as increase in number of permits.
Heard the counsel appearing for the parties and perused the materials available on record.
6. A cursory look at few provisions of the Motor Vehicles Act and Rules framed thereunder, relating to grant of permit and how it is regulated is required for the purpose of deciding as to whether the third respondent is entitled to a spare mini bus permit. Section 70 deals with application for stage carriage permit and it reads as follows:
(1) An application for a permit in respect of a stage carriage (in this Chapter referred to as a stage carriage permit) or as a reserve stage carriage shall, as far as may be, contain the following particulars, namely:
(a) the route or routes or the area or areas to which the application relates;
(b) the type and seating capacity of each such vehicle;
(c) the minimum and maximum number of daily trips proposed to be provided and the time table of the normal trips.
Explanation:--For the purposes of this section, Section 72, Section 80 and Section 102, 'trip' means a single journey from one point to another, and every return journey shall be deemed to be a separate trip;
(d) the number of vehicles intended to be kept in reserve to maintain the service and to provide for special occasions;
(e) the arrangements intended to be made for the housing, maintenance and repair of the vehicles, for the comfort and convenience of passengers and for the storage and safe custody of luggage;
(f) such other matters as may be prescribed.
(2) An application referred to in Sub-section shall be accompanied by such documents as may be prescribed.
6.1 Section 72 enables the competent authority to grant stage carriage permit and it states that subject to the provisions of Section 71, a Regional Transport Authority, may, on an application made to it, under Section 70, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit. As per Sub-section (2) of Section 72 of the Act, the Regional Transport Authority can attach certain conditions to the permit. One of the conditions that can be attached to the stage carriage permit by the Regional Transport Authority as per Section 72(2)(XVII) is that vehicles should be kept as reserve by the holder of the permit to maintain the operation and to provide for special occasions.
6.2 Section 88 of the Act deals with validation of permit, in which, permits are granted. Sub-section 8 of Section 8 is extracted hereunder:
Notwithstanding anything contained in Sub-section (1), but subject to any rules that may be made under this Act by the Central Government, the Regional Transport Authority of any one region or, as the case may be, the State Transport Authority, may, for the convenience of the public, grant a special permit to any public service vehicle including any vehicle covered by a permit issued under Section 72 (including a reserve stage carriage) or under Section 74 or under Sub-section (9) of this Section for carrying a passenger or passengers for hire or reward under a contract, express or implied, for the use of the vehicle as a whole without stopping to pick up or set down along the line of route passengers not included in the contract, and in every case where such special permit is granted, the Regional Transport Authority shall assign to the vehicle, for display thereon, a special distinguishing mark in the form and manner specified by the Central Government and such special permit shall be valid in any other region or State without the countersignature of the Regional Transport Authority of the other region or of the State Transport Authority of the other State, as the case may be.
6.3 Chapter 5 of the Motor Vehicles Act, deals with the control of the Transport Vehicles. The said chapter deals with the grant of permits to various class of vehicles, reserve permits, suspension or cancellation, renewal etc. Chapter 6 of the Motor Vehicles Act deals With Special Provisions relating to the State Transport Undertakings. As per Section 98 of the Act, the provisions of Chapter VI and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter V or any other law for the time being in force or in any instrument having effect by virtue of any such law. Section 99 of the Act deals with the preparation and publication of proposal regarding road transport service of a State Transport Undertakings. Section 100 enables objectors or his representatives to submit objections to the proposal. As per Section 101 of the Act, notwithstanding anything contained in Section 87, a State Transport Undertaking, may in the public interest operate additional services for the conveyance of the passengers on special occasions such as to and from fairs and religious gatherings. Section 103 of the Act deals with the issue of permit to the State Transport Undertakings and Section 104 of the Act restricts grant of permits in respect of a notified area on notified route. The said Section is extracted hereunder:
Where a scheme has been published under Sub-section (3) of Section 100 in respect of any notified area or notified route, the State Transport Authority or the Regional Transport Authority, as the case may be, shall not grant any permit except in accordance with the provisions of the scheme.
7. Clause 4 of the approved scheme in G.O.Ms. No. 1525, Home (Tr. III) Dept, dated 17.11.1999, deals with the grant of mini bus permits, which reads as follows:
Clause 4:- Maximum number of vehicles proposed
to be operated on each route by the
State Transport Undertakings to the
exclusion, complete, or partial or
otherwise of other persons.
Mini bus (Private)
a) Maximum number : 870 Maximum.... : 250
b) Minimum number : 437 Minimum: -
c) Type : Semisaloon
Single Decker
d) .... :
Clause 5) xxxxxxxxxxxxxxxxx
Clause 6) -
Number of vehicles intended One-tenth on the total
to be kept in reserve to number of buses calcul-
maintain the service and to ated on the total fleet
provide for special occasion strength operating on
the area.
As per the approved scheme, the maximum number of vehicles proposed to be operated on each route by the State Transport Undertaking to the exclusion or partial and other persons is 870 and the maximum number of mini buses (Private) permitted to be operated is 250.
8. In the case on hand, the Regional Transport Authority, second respondent had rejected the request of the third respondent on the ground that if the Government had formed an opinion under Section 99(1) of the Motor Vehicles Act, to provide reserve mini buses for private operators, it would have certainly provided such number of reserve mini buses under Clause (6) above, for mini bus operators and in the absence of specification of such reserve mini buses for private operators in the corresponding column in Clause (6) of the Scheme, the third respondent, mini bus operator is not entitled to grant any permit for reserve mini bus. The Regional Transport Authority, Vellore, has further observed that Rule 172(7) of the Tamil Nadu Motor Vehicle Rules does not envisage grant of mini bus permit similar to the ratio prescribed for stage carriage operators of both private and State Transport Undertakings and since the mini buses from a separate category, the provision of Rule 172(7) of the Tamil Nadu Motor Vehicles Rules, cannot be applied to the case on hand. The second respondent has further observed that even as per the modified draft scheme publised in G.O.Ms. No. 1054, Home (Tr. III) Dept, dated 11.11.2002, there is no mention of those 250 mini buses in column No. 4 and therefore, the petitioner is not entitled to reserve mini bus.
9. On appeal, the Tribunal, considering various provisions stated supra, set aside the order of the Regional Transport Authority, dated 30.06.2003 and remanded the matter for fresh disposal in accordance with law and in the light of the observations made in the appellate order.
10. The objections of the petitioner are that there is no provision in the area approved scheme for the grant of spare bus permit for mini bus operators, Section 72(2)(XVII) of the Motor Vehicles Act has no application, in view of the over riding provision contained in Section 98 of Chapter VI of the Motor Vehicles Act, in view of the disabling provision under Section 104 of the Motor Vehicles Act, there is prohibition against grant of any such permit and such permits would be run contrary to the provisions of the scheme notified under Section 104 of the Act, grant of reserve mini bus permits would increase the number of permits granted under the scheme.
11. In W.P. No. 37848 to 37850 of 2002, dated 07.10.2002, learned Single Judge of this Court has held that whatever statutory provisions or rules that are applied for grant of stage carriage permit are equally applicable to the mini bus permits, the difference being only in the seating capacity of the bus and therefore, there could be a permit for a spare mini bus to the maintained by the mini bus operator. Following the said decision, this Court in W.Ps. 33704 & 33710 of 2007, dated 25.10.2007, held that, The object behind granting spare bus is to provide uninterrupted service to the public, in the case of breakdown or for special reason and as per Rule 176(7) of the Tamil Nadu Motor Vehicle Rules, it shall be a condition of permit of every stage carriage that the number of the vehicles to be kept as reserve by the holder of the permit to maintain the operation and to provide for special reasons a maximum of or reserve stage carriage, and the condition precedent is the holder of the permit should possess route buses ranging from one to five. There existing operator, than to provide uninterrupted service to the public at large.
12. In a recent decision in R. Shanmugaiah v. P.S. Lakshmanakumar and 2 Ors. reported in 2007 Writ L.R. 832, a Division Bench of this Court examined the proposition whether the mini bus permit granted under the provisions of the Motor Vehicles Act can be held to be a stage carriage permit. At Paragraphs 16.9, 16.10 and 18, this Court held as follows:
16.9. A conjoint reading of the above referred to statutory provisions and the decision of the Hon'ble Supreme Court wherein the purpose of fixing stages for a stage carriage service has been stated, leads us to hold that a mini bus is nothing but a stage carriage service. In other words, a mini bus satisfies the definition of a 'stage carriage' as defined under Section 2(40) of the Act, apart from the fact that Rule 3(o) of the Rules specifically means a mini bus as a stage carriage. As between a regular stage carriage and a mini bus, the only difference is that in respect of a mini bus the maximum number of passengers permissible has been determined as 25, while the minimum is six which is common both for a regular as well as a mini bus. It cannot be disputed that a mini bus operation being a stage carriage has to necessarily operate its vehicle in the route permitted for it in between the various stages determined. Therefore, all the parameters which are prescribed in respect of a regular bus while operating in a permitted route such as the prescription of fares, the starting point and the destination, minimum prescribed number of passenger permissible, the prescribed number of maximum numbers of passengers passengers permissible, the number of stages fixed in between the permitted route are all common and applicable to a mini bus as well. The statutory definition contained in Rule 3(o) of the Rules, defining a 'mini bus' to mean a stage carriage, further strengthens the position that a mini bus operation can only be considered as a stage carriage service and cannot be distinguished from a stage carriage operated with a vehicle of larger passenger capacity when it comes to the question of whether such services is a stage carriage service; or can it be called as any other service under the provisions of the Act. To put it differently, a mini bus operation though by virtue of the definition contained in Rule 3(o) of the Rules has got a restricted number of passengers to be carried at a maximum level, as far its operation in a route is concerned, it is nothing but a stage carriage service.
16.10. Therefore, the irresistible conclusion can only be that a mini bus service is also a stage carriage service in its operation in a permitted route. When such a conclusion is a irresistible one, based on the provisions of the Act and the Rules as well as the decision of the Hon'ble Supreme Court, we are left with no other option except to hold that a stage carriage service would take within its fold the operation of all types of carriages in any particular route when such carriages are being operated covering different stages in that particular route providing transport facilities for all those who wish to avail the service as passengers.
18. The contention made on behalf of the first respondent that a mini bus service cannot be equated to an operation of a regular bus is not appealing to us for more than one reason. In the first place, the operation of a stage carriage service, as held by us, is not dependent upon the nature of vehicle operated in the service. The stage carriage service having been defined in categoric terms under the provisions of the Act and the only difference as between a regular bus and a mini bus operating in a stage carriage service is only the capacity of the passengers to be carried in the vehicle, in our opinion, a distinction sought to be made in respect of a stage carriage service operated by a mini bus and a regular bus would directly conflict with the statutory provision, namely the definition clause of a stage carriage under Section 2(40) of the Act, as well as, a mini bus which has been defined to mean as a 'stage carriage' as defined under Rule 3(o) of the Rules.
13. A conjoint reading of Sections 70 and 72(2)(XVII) of the Act makes it clear that the stage carriage operator can make independent application for a reserve stage carriage containing the route or the routes or the area or areas for which the application relates mentioning the number of vehicles intended to be kept to maintain the service and to provide for special occasions.
14. Keeping in mind that the object of providing reserve permit is to maintain the continuity of service and fee provide for special occasions and in the light of the enabling provision to make an application for reserve stage carriage permit containing the route or the routes or the area or the areas to which the application relates and in view of the decisions of this Court, which lay down the preposition that all the statutory provisions or the Rules that are applicable to the stage carriages are equally applicable to the mini buses, the third respondent is entitled to make an application for a mini spare bus permit.
15. The term "reserve" in the Motor Vehicles Act would only mean, "keep for future use" and in the context of Section 70(d) of the Act, the reserve mini bus permit is intended to be kept for use only certain eventualities such as break down or for special occasions. As rightly contended by the learned Counsel for the third respondent that the term arid effect of the spare mini bus permit goes along with the original permit and considering the fact that it is only a reserve vehicle permit to maintain continuity of service, operating two or more vehicles in the same route or the routes or area or areas, contrary to the intention of the legislation and the object of providing reserve spare mini bus, is not permissible.
16. The object of the scheme is to provide conveyance to the rural public and the mini bus operators are permitted to ply their vehicles for a distance of 16 kms in an unserved sector and 4km in served sector, in all 20 kms. If the mini bus which is operated in an unserved sector for a distance of 16 kms is stopped due to breakdown, the rural public would be left with no other conveyance and in such a situation, spare vehicle is necessary to provide the rural traveling public to reach their destination without any delay. If the intention behind providing spare bus to State Transport Undertakings is to maintain service for the commuters and to provide for special occasion, and the number of buses intended for such purpose is 1/10th on the total number of buses calculated on the total fleet strength operating on the area, it is not just and reasonable to expect that the mini bus operators should not provide the similar service to the rural public. To deny a mini bus operator to have a spare bus to provide continuity of service to the rural public in an unserved sector would amount to denying the rural public of their legitimate right to utilize the services provided by mini buses and it would be amounting to discrimination, violating Article 14 of the Constitution of India. Keeping in mind, the legislative intent and the benevolent scheme, the provisions of Section 104 of the Act has to be read and interpreted to give the most beneficial interpretation and therefore, I am of the considered opinion that the grant of spare mini bus permit does not amount to traveling beyond the scheme nor it is inconsistent with the provisions in Chapter VI of the Act. In view of the above, the objection raised by the petitioner are untenable.
17. The petitioner is only existing mini bus operator and so long as there is no overlapping of the route granted in his favour, he has no locus standi to maintain a Writ against the grant of spare mini bus permit to the third respondent. For the above said reasons, the Writ Petition is dismissed. No costs.