Madras High Court
Sri Meenakshi Bus Transports Rep. By ... vs Safe Service Limited, The Regional ... on 18 June, 2003
ORDER E. Padmanabhan, J.
1. W.P. No.12826/95 has been filed by the petitioner, M/s.Sri Meenakshi Bus Transports represented by its Managing Partner, praying for the issue of a writ of certiorarified mandamus calling for the records of the 3rd respondent, the State Transport Appellate Tribunal, Chennai, pertaining to the proceedings dated 7.8.95 made in Appeal No.1765/66, quash the same insofar as it relates to the finding that the petitioner is not entitled to grant of permit asked and applied for and further direct the 2nd respondent, the Regional Transport Authority, Salem, to forbear from interfering with the operation of service on the route Salem to Erode via Ariyanur, Mac.Donald Choultry, Sankari and Pallipalayam covered under permit in R. No.45334/A2/94 dated 9.8.94 in PSP No. NKL/99/94, which is valid up to 20.8.99 and issue such further or other order as this Court deems fit.
2. W.P. No.12827/95 has been filed by the very same writ petitioner M/s.Sri Meenakshi Bus Transports praying for the issue of a writ of declaration declaring that the petitioner is entitled to ply his stage carriage on the route Salem to Erode via Ariyanur, Mac.Donald Choultry, Sankari and Pallipalayam covered in permit and renewed in R. No.45334/A2/94 in PSP No.NKL/99/94 and issue such other further or other order as this Court deems fit.
3. All the four respondents are the same in both the writ petitions. With the consent of counsel on either side, the writ petitions came to be taken up for final disposal. Though the 4th respondent has been pressing for earlier disposal, the writ petitions disappeared and the original writ petitions and the connected papers were not traceable. The papers were reconstructed more than twice. As per the orders of My Lord The Honourable The Chief Justice, the above two writ petitions are listed before this Court for final disposal.
4. Heard Mr.K.Azhagirisamy, learned senior counsel appearing for Mr.C.R.Krishnamoorthy, for the petitioner in both the writ petitions and Mr.R.Krishnappan, learned counsel appearing for the first respondent in both the writ petitions, Mr.Sanjay Ramasamy, learned Government Advocate appearing for respondents 2 and 3 and Mr.V.R.Kamalanathan, learned counsel appearing for the 4th respondent in both the writ petitions.
5. It is the case of the petitioner that it is a stage carriage operator plying its bus on the route Salem to Erode. The 3rd respondent dismissed the appeal filed by the petitioner relating to grant of permit on the said route as abated in terms of Section 7 of The Tamil Nadu Motor Vehicle (Special Provisions) Act, 1992 (Tamil Nadu Act 41 of 1992) and it is being challenged in this writ petition.
I. PETITIONER'S CASE :-
6. It is the case of the petitioner that the 2nd respondent invited application for grant of two stage carriage permits to ply on the route Salem to Erode. In all 54 applications were received including that of the petitioner and the first respondent. The 2nd respondent considered the applications and granted one permit in favour of the first respondent, M/s.Safe Service Ltd., and another in favour of M/s.LRN Bus Service by proceedings dated 3.5.64, while rejecting the claim of other 52 applicants including that of the petitioner.
7. Challenging the grant in favour of the first respondent and refusal to grant, the petitioner preferred Appeal No.1765/66 before the State Transport Appellate Tribunal. By proceedings dated 5.5.78, the appellate authority allowed the appeal filed by the petitioner, set aside the grant made in favour of the first respondent and ordered grant of permit in favour of the petitioner herein.
8. Challenging the said proceedings of the State Transport Appellate Tribunal, the first respondent preferred CRP No.1500/78 on the file of this Court. Pending the revision petition, both the petitioner as well as the first respondent were permitted to operate on the route till the disposal of the civil revision petition. This Court by final order dated 25.11.81, after hearing both the parties, allowed the civil revision petition and remitted the matter back to the 3rd respondent with a direction to keep the appeal pending till the finalisation of a draft scheme published as early as on 1.7.76, since the route in consideration overlapped a notified scheme. While allowing the revision and remitting the matter back to the 3rd respondent, this Court directed maintenance of status quo till the disposal of the appeal. Apprehending that the 3rd respondent may dismiss the appeal pending before it, the petitioner moved W.P. No.21504/93 and obtained orders of stay, which order of stay was made absolute. The first respondent challenged the said interim order in W.A. No.417/94. A Division Bench of this Court allowed the writ appeal and directed the 3rd respondent to dispose of the appeal in accordance with law.
9. As against the direction issued by the Division Bench, the writ petitioner preferred SLP Nos.1800 and 1801 of 1995 on the file of the Supreme Court and the Supreme Court by order dated 11.3.95 dismissed the SLP as having become infructuous while directing the 3rd respondent to dispose of the appeal applying the ratio laid down in T.P.K.TILAKAVATHY VS. REGIONAL TRANSPORT AUTHORITY , wherein the validity of Tamil Nadu Act 41 of 1992 has been upheld. After remand, the appeal was kept pending for want of records. At that stage, the first respondent herein moved an interlocutory application before the 3rd respondent to dismiss the appeal filed by the petitioner on the ground that the pending appeal is hit by Section 7 of Tamil Nadu Act 41 of 1992. Hence, the 3rd respondent took up the appeal No.1765 OF 1966 and dismissed the same as abated by order dated 7.8.95 in terms of Section 7 of the Tamil Nadu Act 41 of 1992.
10. It is contended that the first renewal expired on 20.8.86 and, thereafter, the permit was renewed for a further period of three years till 20.8.89, which is after the commencement of The Motor Vehicles Act, 1988, which came into force on 1.7.89. It is also contended that any permit granted/renewed under the old Act and expired under the new Act ceased to have its validity on its expiry and, thereafter, the aspiring applicant has to make new application for the grant of new permit in accordance with The Motor Vehicles Act, 1988. It is further pointed out that renewal, if any, under the old Act is nothing but a fresh grant under the new Act and, therefore, the petitioner is entitled to continue the operation of the vehicle on the route in question. The petitioner relies upon the pronouncement of the Supreme Court in SECRETARY, QUILON DISTRICT MOTOR TRANSPORT WORKERS' CO-OPERATIVE SOCIETY LTD. VS. REGIONAL TRANSPORT AUTHORITY & OTHERS .
11. It is pointed out that the grant or permit issued in favour of the petitioner is a fresh permit, which grant has not been challenged. Therefore, it is claimed that the order of the 3rd respondent is unsustainable as it runs counter to the pronouncement of the Supreme Court. It is further contended that without regard the 3rd respondent should not have considered and disposed of the appeal. It is also the claim of the petitioner that after the grant and renewal from time to time thereof, it will not be affected by the disposal of the appeal by the 3rd respondent as it should be deemed to be an independent grant by the 2nd respondent and the 3rd respondent failed to appreciate this legal position. It is also the claim that the permit has been renewed after the commencement of The Motor Vehicles Act, 1988 on 20.8.1989, within the period prescribed by Tamil Nadu Act 41 of 1992. The permit has been renewed subsequently also for various periods of five years and being an independent permit, existing of its own, de hors, the proceedings that culminated by Appeal No.1765/66, the 3rd respondent has no authority to set aside the grant.
12. It is pointed out that according to the pronouncement of the Supreme Court in T.P.K.Tilakavathy's case, all grants made prior to 30.6.90 will be valid and it is only grants made subsequent to that date alone would be invalid. A direction has been issued by the Supreme Court in the special leave petition to the 3rd respondent to apply the ratio laid down in T.P.K.Tilakavathy's case. The 3rd respondent has acted with illegality in examining the only point whether the appeal stands abated or not and the 3rd respondent has acted without jurisdiction in recording such a finding. The proceedings of the 3rd respondent runs counter to the pronouncement of the Supreme Court in where it has been held that renewal is a fresh permit to operate the service for a fresh period set out in the renewed permit. The 3rd respondent has exceeded in its jurisdiction in allowing the appeal as abated and setting aside the grant.
13. On the same basis, the petitioner has also sought for the issue of a writ of declaration declaring that the petitioner is entitled to ply his stage carriage on the route Salem to Erode via Sankari covered by the permit referred to by it. This is on the basis that the petitioner has got an accrued right and on that basis was issued permit and, therefore, a declaration has been sought for in W.P. No.12827/95. It is not necessary to repeat the averments set out in the affidavit filed in support of W.P. No.12827/95.
II RESPONDENT'S CASE :-
14. The 4th respondent, a State Transport Undertaking, has filed a common counter in both the writ petitions. It is admitted that the 2nd respondent invited applications for the grant of two stage carriage permits to ply on the route Salem to Erode in the year 1964. The 2nd respondent granted one permit in favour of the first respondent herein and one permit in favour of M/s.LRN Bus Service by proceedings dated 25.4.64 and rejected the remaining 52 applications. Aggrieved by the said rejection, eleven unsuccessful applicants preferred appeals before the 3rd respondent, State Transport Appellate Tribunal. All the eleven appeals were disposed of by the State Transport Appellate Tribunal by common order dated 5.5.78 in Appeal No.1765/66. The 3rd respondent allowed the appeal, set aside the order of the 2nd respondent granting permit to the first respondent herein and directed grant of permit in favour of the writ petitioner. Challenging the same, the first respondent preferred CRP No.1500/78 on the file of this Court. Pending the revision, both the grantees were permitted to operate on the route.
15. At that stage a draft scheme was published under Chapter IV A in respect of the route Salem to Erode on 1.7.76. It is pointed out by the 4th respondent that the Supreme Court in SLP No.941/78 held that till the finalisation of the draft scheme by the competent authority under Section 68-D of The Motor Vehicles Act, 1939, the Tribunal should keep the appeal pending and could dispose of the same only after finalisation of the scheme under Section 68-B of The Motor Vehicles Act. But this Court, it is stated, passed final order in CRP No.1500/78 dated 25.11.1981 setting aside the grant in favour of the petitioner herein by the State Transport Appellate authority and also remanded the matter to the Tribunal with a direction to keep the same pending till the draft scheme for the route is finalised and also ordered maintenance of status quo pending the appeal with respect to operation of the vehicle on the route.
16. The Motor Vehicles Act, 1988 came into force replacing the 1939 Act with effect from 1.7.89. Under the 1988 Act a draft scheme published under the provisions of the old Act and pending on the date of commencement of the 1988 Act should be approved within one year from the date of commencement of the new Act, failing which the draft scheme automatically lapsed. The draft scheme has not been approved by the State Government in respect of the route Salem to Erode within one year and, therefore, the draft scheme lapsed.
17. While the appeal was pending before the State Transport Appellate Tribunal, Tamil Nadu Act 41 of 1992 was published by the Government of Tamil Nadu in gazette dated 31.7.92. Apprehending dismissal of appeal consequent into coming into force of Tamil Nadu Act 41 of 1992, the petitioner with ingenuity filed W.P. No.21504/93 praying for a direction not to interfere with the operation of the stage carriage on the route Salem to Erode. The petitioner also secured interim orders in the said writ petition.
18. Challenging the interim order, the first respondent herein preferred W.A. No.417/94 before the Division Bench of this Court. By an order dated 1.8.94, the Division Bench allowed the writ appeal preferred by the first respondent and, thereafter, dismissed the writ petition filed by the petitioner holding that the provisions of Section 7 of The Tamil Nadu Act 41 of 1992 is applicable to the pending Appeal No.1765/66 filed by the petitioner and, further, directed the State Transport Appellate Tribunal to proceed with the appeal and dispose of the same in accordance with law in the light of the observations made in the above pronouncement.
19. Challenging the orders passed by the Division Bench in writ appeal, the Supreme Court was moved by way of special leave petition. The Apex Court disposed of the special leave petition as having become infructuous as counsel for both the parties agreed that the appeal of the petitioner pending before the 3rd respondent shall be decided following the ratio in T.P.K.Tilakavathy's case .
20. By order dated 7.8.95, the State Transport Appellate Tribunal held that the Appeal No.1765/66 stands abated under Section 7 of The Tamil Nadu Act 41 of 1992. Challenging the same, the petitioner preferred the present writ petition on the file of this Court and secured interim orders. By virtue of the interim orders, the petitioner, who was plying hitherto before also is plying its stage carriage on the route Salem to Erode.
21. It is contended that the Supreme Court in T.P.K.Tilakavathy's case laid down that no permit could be granted after 30.6.90 and only those for whom permit is subsisting on the crucial date, viz., 30.6.90, grant of renewal shall be considered under Act 41 of 1992 and entitled to protection under Section 10 of The Tamil Nadu Act 41 of 1992.
22. This Court has already set aside the grant made by the 3rd respondent in CRP No.1500/78 and the petitioner was not holding a valid permit as on 30.6.90 and no new permit shall be granted to any private operators and the route covered by a scheme under Section 6 of The Tamil Nadu Act 41 of 1992 on or after 1.7.90. As he route Salem to Erode is covered under the approved scheme Dharmapuri to Erode via Salem published in the gazette dated 11.9.68, no fresh permit could be granted in favour of the petitioner to any private operator. Grant of permit in favour of the petitioner has been rightly set aside in CRP No.1500/78 by order dated 25.11.81 and the petitioner was not holding any permit and the appeal filed by the petitioner has also been rejected. No permit was subsisting on and after 30.6.90. The question of validation or the grant of permit in favour of the petitioner under Section 3 and 4 of Tamil Nadu Act 41 of 1992 does not arise. The pronouncement of this Court in ASSOCIATED BUS SERVICE VS. SMMS MOTOR SERVICE reported in 1995 WLR 454 is squarely on the point and it is against the petitioner. The said order in the writ petition came to be confirmed by the Division Bench in W.A. No.1498/94 to 1500/94, 104/95 and 105/95 dated 14.2.95. Therefore, there are no merits in the writ petition and they are liable to be dismissed accordingly since it is covered by the earlier pronouncement.
23. The permits were granted in favour of the petitioner as well as the first respondent as well as M/s.LRN Bus Service. Pursuant to the interim orders, the petitioner was permitted to operate and there cannot be more than two permits, if at all. The Regional Transport Authority granted a permit to M/s.Sri Meenakshi Bus Transports on 11.1.88 to ply on the route Salem to Erode, which was the subject matter of challenge before the State Transport Appellate Tribunal. Based upon a consent memo, the grant in favour of Tmt.Samiyathal was confirmed and four more additional permits were issued. The validity of the said order was challenged by the State Transport Undertaking in W.P. Nos.1221 to 1223 of 1991, etc., batch. By order dated 30.4.93, it was held by this Court that the Regional Transport Authority had called for applications for issue of only one permit and, therefore, it is not open to the Tribunal to grant four permits with reference to the same route. The consent memo runs counter to the statutory provisions of The Motor Vehicles Act. The writ petitions filed by the State Transport Undertaking, the 4th respondent, was allowed and the permit granted in favour of others on the basis of the consent memo was also set aside by this Court and the same has been confirmed by the Supreme Court in T.P.K.Tilakavathy's case in Civil Appeal Nos. 540 to 544 of 1994 dated 29.11.1994.
24. It is contended that the order in W.P. No.1221 to 1223 of 1991, etc., batch, dated 30.4.93 on the file of this Court squarely applies to the present case and the same has since been confirmed by the Supreme Court in T.P.K.Tilakavathy's case . There are no merits in both the writ petitions and both the writ petitions are liable to be dismissed. It is also contended that no new permit shall be granted in terms of Section 6 (4) of The Tamil Nadu Act 41 of 1992, which squarely applies to the facts of the case.
25. The Tamil Nadu Act 41 of 1992 came to be published on 31.7.92 and the Supreme Court while confirming the judgment of this Court, upheld the validity of Tamil Nadu Act 41 of 1992. In C.A. No.1758/86 the Apex Court held that excepting the State Transport Undertaking, no other person other than those set out in Annexure II of the approved scheme could operate stage carriage service. That apart, Section 103 of The Motor Vehicles Act, 1988 prohibits the grant of permits to private operators except under the scheme. It is submitted that there are absolutely no merits and the petitioner has successfully managed to continue the interim orders and continued to operate in the route without a valid permit for decades together. The 4th respondent prayed for dismissal of the writ petition.
26. Mr.K.Azhagirisamy, learned senior counsel appearing for the writ petitioner contended that the impugned order passed by the State Transport Appellate Tribunal, the 3rd respondent herein, suffers with illegality, misdirection and misreading of The Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992. It is also contended that the conclusion that pending the proceedings with respect to grant of permit to ply on the route Salem to Erode abated in terms of The Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992, is a misconception and misreading of Section 7 of the Act and also Section 11 of the said Act. It is further contended by the learned senior counsel that the route Salem to Erode in respect of which a draft scheme came to be published, which draft scheme having not been approved within one year after the commencement of The Motor Vehicles Act, 1988, by fiction it follows that there is no scheme nor a proposal at all and, therefore, for the route with respect to which applications have been called for has to be decided on merits and the rejection of the appeal as abated is liable to be quashed and the matter has to be remitted back to the State Transport Appellate Tribunal for fresh consideration on merits of the claims of the respective applicants. It is also contended that the route in question not being covered by any scheme, is beyond the purview and scope of The Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992. The rejection of the appeal as abated as if the said Tamil Nadu Motor Vehicles (Special Provisions) Act applies to the route is an illegality, error apparent on the face of the record and the writ petitions have to be allowed.
27. Per contra Mr.R.Krishnappan, learned counsel appearing for the first respondent contended that no interference is called for with the orders passed by the State Transport Appellate Tribunal as the appeal stands abated in terms of The Tamil Nadu Motor Vehicles (Special Provisions) Act and at any rate the first respondent being possessed of better qualification has been rightly preferred by the Regional Transport Authority and, therefore, this Court would decline to interfere with the impugned proceedings at this point of time. It is also contended that as against the impugned orders no writ petition is maintainable.
28. Mr.Sanjay Ramasamy, learned Government Advocate appearing for the 2nd respondent and Mr.Kamalanathan, learned Standing Counsel appearing for the 4th respondent contended that the proceedings of the State Transport Appellate Tribunal is well founded, there is no illegality with the order passed, that the appeal preferred by the writ petitioner stands abated under Section 7 of The Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992; that it is an application for grant of route permit and, therefore, it stands abated and, therefore, no exception could be taken to the conclusion arrived at by the State Transport Appellate Tribunal. The respondents prayed for dismissal of the writ petitions.
29. The learned counsel on either side took the Court through the earlier proceedings between the parties as well as the earlier orders passed by this Court in the civil revision petition, writ petitions and the directions issued by the Supreme Court in respect of various interlocutory proceedings. There is no factual controversy.
30. The points that arise for consideration in these writ petitions are :-
"i) Whether the order passed by the State Transport Appellate Tribunal holding that the application for grant as well as appeal preferred thereof abates in terms of Section 7 of The Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992, suffer with error apparent on the face of the record, illegality and misconstruction of the said State enactment ?
ii) Whether the failure on the part of the Appellate Tribunal to examine the appeal on merits and according to law governing the grant of permit on the crucial date vitiates the proceedings ?
iii) To what relief, if any, the petitioner is entitled to in both the writ a petitions ?"
All the points could be considered together.
31. The Regional Transport Authority, Salem, invited applications for the grant of two stage carriage permits to ply on the route Salem to Erode. In all 54 applications were received and they were considered. The Regional Transport Authority by proceedings dated 25.4.64, after considering the 54 applications on merits granted two permits, one in favour of M/s.Safe Services Ltd., (first respondent in the writ petitions) and the other in favour of M/s.LRN Bus Service. Aggrieved by the grant of the said two permits in favour of the said two operators, eleven unsuccessful applicants including the writ petitioner preferred appeal before the State Transport Appellate Tribunal in Appeal Nos. 1761 to 1765/66, 2090 and 2094/66, 561/68, 562/68, 768/69 and 896/69.
32. When the appeals were pending, a draft scheme was published in respect of the route Salem to Erode on 1.7.76. After the publication of the said draft scheme on 1.7.76, the State Transport Appellate Tribunal by order dated 5.5.78 allowed the Appeal No.1765/66, set aside the award of the grant of permit in favour of M/s.Safe Services Ltd., (the first respondent in the writ petitions) and directed grant of permit in favour of the writ petitioner, M/s.Sri Meenakshi Bus Transports, who is the appellant in Appeal No.1765/66. The remaining appeals were dismissed by the Appellate Tribunal. The grant in favour of M/s.LRN Bus Service has not been disturbed.
33. The first respondent in the writ petition preferred CRP No.1500/78 and by interim order dated 19.7.78, the High Court permitted M/s.Safe Services Ltd., (revision petitioner-the Regional Transport Authority grantee) as well as M/s.Sri Meenakshi Bus Transports (writ petitioner-STAT grantee) to operate on the route in question pending disposal of the said CRP No.1500/78.
34. While the revision was pending, in SLP No.941/78, the Supreme Court by direction dated 2.9.80 ordered that till the finalisation of the draft scheme by the competent authority under Section 68-B of The Motor Vehicles Act, 1939, the State Transport Appellate Tribunal should keep the appeals pending and appeals could be disposed of after finalisation of the scheme under Section 68-B of the Act.
35. This Court while following the direction issued on 2.9.80 in SLP No.941/78, set aside the order passed by the State Transport Appellate Tribunal and remanded the matter back to the Appellate Tribunal with a direction to keep the appeal pending till the draft scheme Salem to Erode is finalised. While disposing of the revision petition, this Court also further directed to maintain the status quo with reference to the operation of the bus by both sides till the disposal of the appeal. Pending the civil revision petition as well as after remand pending the appeals, the writ petitioner was operating apart from the first respondent herein, besides M/s.LRN Bus Service, one of the two grantees. Thus, factually and admittedly also all three buses are being operated as against two routes notified by the Regional Transport Authority.
36. The Motor Vehicles Act, 1939 was repealed by The Motor Vehicles Act, 1988, which came into force on 1.7.89. In terms of Section 100 of The Motor Vehicles Act, 1988, read with Section 217(2)(e), the draft scheme published under the 1939 Act and pending on 1.7.89, the date on which the 1988 Act came into force should be approved within one year from 1.7.89, less the draft scheme shall lapse. Therefore as on 1.7.90, the draft scheme published on 1.7.76 lapsed as it was not approved and it is never deemed to have been notified. That would be the effect by applying the rule of legal fiction, which has to be taken to the logical end.
37. The appeal was kept pending though the draft scheme lapsed on 30.6.90. Had the State Transport Appellate Tribunal decided the appeal on merits immediately after the lapse of the draft scheme, the State Transport Appellate Tribunal would have decided the appeal on merits and according to law, namely, merits of each applicant and would have either confirmed the grant or set aside the grant as the case may be. But unfortunately that has not been done in the present case. It is also stated that in view of the various proceedings prosecuted by either side, the appeal papers have been misplaced or lost or lost sight of by the State Transport Appellate Tribunal.
38. For no obvious and valid reasons the appeal was kept pending in cold storage without disposal though the High Court in CRP No.1500/78 on 25.11.81 directed the State Transport Appellate Tribunal to dispose of the appeal after finalisation of the draft scheme, while following the direction issued by the Supreme Court in SLP No.941/78 dated 2.9.80.
39. While the appeals remanded were pending on the file of the State Transport Appellate Tribunal awaiting disposal though the draft scheme stood lapsed, the larger question with respect to the interpretation of Sections 68 C, D, F and FF and the consequence of approved scheme was the subject matter of consideration in PANDIAN ROADWAYS CORPORATION LTD. VS. M.A. EGAPPAN . The Apex Court, while following the earlier pronouncement in AADARSH TRAVELS BUS SERVICE VS. STATE OF U.P. Reported in laid down that an operator, though granted permit and variation thereof, is not entitled to operate as the operator is not protected by any provisions in the scheme and unless protected under the approved scheme itself, he could not be permitted to operate on any sector of the notified route in question in terms of Sections 68 C, D and FF of the Act. The Apex Court in this respect held thus :-
"...... There is no justification to limit the application of Section 68-F(1-D) of the Act to only applications for fresh permits or their renewal and to leave out applications for variation of a permit by the inclusion of the route or a portion of the route in respect of which a scheme is published. The fact that the applicant is the holder of a permit to operate a stage carriage on another route whose variation he is seeking by the inclusion of a route or a part thereof in respect of which a scheme is published under Section 68-C of the Act ought not to make any difference. The principle underlying Section 68-F(1-D) of the Act is that the number of services on such a route should be frozen on the publication of a scheme under Section 68-C of the Act. It is not, however, necessary for us to pursue the applicability of Section 68-F(1-D) of the Act in the present case any further since it is brought to our notice that the very same route is the subject-matter of the approved scheme published under Section 68-D of the Act on June 30, 1976 to which we have already adverted. The approved scheme, as mentioned earlier, excludes the operation by others of stage carriage services on the above mentioned route Madurai to Kumuli except those whose names are mentioned in Annexure II attached thereto. The respondent is not protected by any provision in the approved scheme itself. He cannot be permitted to operate on any sector of the notified route in question in view of the provisions contained in Sections 68-C, 68-D and 68-FF of the Act. The effect of these provisions has been summarised by a Constitution Bench of this Court in Adarsh Travels Bus Service v. State of U.P. Chinnappa Reddy, J. speaking for the Constitution Bench observed at page 566 (para 7) thus:
"7. A careful and diligent perusal of Section 68-C, Section 68-D(3) and Section 68-FF in the light of the definition of the expression 'route' in Section 2(28-A) appears to make it manifestly clear that once a scheme is published under Section 68-D in relation to any area of 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."
5. In view of the above observation we have to hold that in the instant case the respondent is not entitled to operate his stage carriage on the notified route or a portion thereof even though he may have been granted variation of his permit to operate on a sector of the notified route."
40. The Supreme Court in the same pronouncement further held that on the entire route notified or any part thereof no person other than those mentioned in Annexure II could operate a stage carriage service. The Apex Court, in the said context, held thus:-
"6. We do not agree with the contention urged on behalf of the respondent that on a true construction of the scheme only persons who are operating their stage carriages under permits issued in respect of the entire route from Madurai to Kumuli alone have been excluded under the approved scheme and not those who are operating between any two places on the notified route or between any place lying outside the notified route and a place on the notified route even though they may be operating on a portion of the notified route. We are firmly of the view that on the entire notified route between Madurai and Kumuli or any part thereof apart from the State Transport Undertaking no person other than those mentioned in Annexure II to the approved scheme can operate a stage carriage service. We, therefore, direct the respondent not to operate his stage carriage on the sector in respect of which he has obtained the variation of his permit."
41. At this stage, the State Legislature stepped in with the object of saving the small bus operators to ply their stage carriages on any portion of the area or route covered by the approved scheme and also to provide for the variation of conditions of permit. The object of the Statement of Objects and Reasons annexed to The Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992, runs thus :-
"3. It has, therefore, been decided to allow the existing small bus operators to ply their stage carriages on any portion of the area or route covered by the draft schemes or the approved schemes and also to provide for the variation of the conditions of permit. It has also been decided that the existing small bus operators who are operating buses on the sectors of the notified route and on the routes covered by draft schemes to continue their operation. Otherwise they will have to stop the buses which will affect the travelling public, as the State Transport Undertakings cannot introduce so many number of buses in a short notice to replace them.
4. It has, therefore, been decided to undertake legislation so as to make the existing small bus operators to continue to operate their buses on the notified routes and on the routes covered by draft schemes."
42. With the above object, the State Legislature enacted The Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992, hereinafter referred to as 1992 Special Provisions Act making the special provision in respect of permits for stage carriages under The Motor Vehicles Act, 1988 and in relation to the schemes and routes notified under Chapter VI of the Act and all matters connected therewith. The 1992 Special Provisions Act was given retrospective effect and it is deemed to have come into force on 4.6.76 and remained in force up to and inclusive of 30.6.90, while Section 6 shall be deemed to have come into force on 1.7.90 and deemed to have continued in force on and from 1.7.90. Sub-Section (4) of Section 1 provides that the 1992 Special Provisions Act shall apply only in relation to draft schemes, approved schemes and notified routes. Section 3 enables the Regional Transport Authority to grant a permit or renew a permit of a small operator as defined under the Act to ply his stage carriage on the entire route covered by the draft scheme or the approved scheme or on such portion of the route covered by the draft scheme or approved scheme as may be specified and for such period and subject to such terms and conditions, which may be in respect of matters specified in Sub-Section (2) of Section 72 of The Motor Vehicles Act or in respect of any other matter as it thinks fit. Section 2 (a) defines the expression "approved scheme", and Section 2 (b) defines the expression "draft scheme".
43. Section 4 of the Act is relevant for the purpose of the present case, which Section provides that existing permits or temporary permits already granted or renewed or varied shall be valid for the period for which such permits were granted, renewed or varied notwithstanding anything contained in a draft scheme or approved scheme or under Section 3 of the 1992 Special Provisions Act. Section 5 provides that the provisions of Sections 3, 4 and 6 of the 1992 Special Provisions Act shall have overriding effect notwithstanding anything inconsistent therewith contained in Chapter V and Chapter VI including Section 98 of The Motor Vehicles Act. Section 6 provides for renewal or variation of permits.
44. Section 6 provides that all pending applications and appeals for grant of new permits shall abate. Section 7 has been the subject matter of consideration before the Appellate Tribunal and scope of Section 7 has to be considered in these writ petitions. Section 10 validates all proceedings taken for the grant of and all orders passed granting permits or renewal or transfer of such permits or any variation, modification, extension or curtailment of the route pending on the date of publication of the 1992 Special Provisions Act. Section 11 provides that the Special Provisions of the Act shall be in addition and not in derogation of any other law for the time being in force.
45. In the present case the State Transport Appellate Tribunal by the order impugned, while considering the scope of 1992 Special Provisions Act held that the appeals pending before it abated in terms of Section 7 of the 1992 Special Provisions Act. The same is the subject matter of challenge in this appeal. It is also being rightly pointed out by the learned senior counsel appearing for the petitioner that the State Transport Appellate Tribunal has not at all decided the second point framed by it on merits, namely, whether the appellant is entitled to the grant of permit asked for ? In other words, the State Transport Appellate Tribunal has not considered the merits of the respective claims. If the State Transport Appellate Tribunal has considered the merits of the respective applicants in the appeals, this Court would have examined the matter on merits as well and decided the matter on merits. Hence, there is no justification for this Court to examine the claims or merits of the respective applicants for permit by this Court in the present writ petitions.
46. Be that so, the 1992 Special Provisions Act was the subject matter of challenge in a batch of writ petitions. A Division Bench of this Court considered the scope of the 1992 Special Provisions Act and the same was taken on appeal before the Supreme Court.
47. In T.P.K.TILAKAVATHY VS. REGIONAL TRANSPORT AUTHORITY, PERIYAR , a three Judges Bench of the Supreme Court considered the scope of the 1992 Special Provisions Act, while repelling the challenge to the cut off date, held thus :-
"4. Validity of the Act was assailed, but half-heartedly, by the learned counsel for the appellants who are the stage carriage operators to whom permits had been granted for plying either on intra or inter-State routes on or after 1.7.1990, obviously because invalidity of the Act does not advance their cause. Even otherwise, from the Statement of Objects and Reasons and the provisions in the Act it is clear that the Legislature intended, in public interest, to remove the sudden hardship to common public due to decision rendered by this Court in Pandiyan Roadways. But State Legislature having accepted the interpretation placed by this Court in Pandiyan Roadways, except for those to whom permits were granted earlier, the appellants cannot claim to be treated similarly and placed in that class of operators who were granted permits before 1.7.1990. In our opinion the State Legislature, in keeping with the decision given by this Court that such a scheme as was in dispute was for complete exclusion of private operators, rightly provided that no permit could have been granted after the Scheme was granted approval under the new Act. That explains the reason for cut-off date as the schemes were approved under the new Act in June 1990 only. Therefore, on interpretation placed by this Court, the authorities could not have granted any permit which overlapped any part of notified route. The cut-off date, therefore, was not violative of Article 14."
48. In the same pronouncement, while considering Sections 6 and 7 of the 1992 Special Provisions Act, their Lordships of the Supreme Court held thus :-
"7. Reverting to the provision of the Act, it is slightly unusual legislation as it came into force in July 1992 yet, except Sections 6 and 7, the remaining provisions of the Act are deemed to have come into force in 1976 and ceased to operate after 30-6-1990. The Act thus seeks to achieve dual objective - one, legislatively protecting those operators who were granted permits after 1976 under misconception by the Transport authorities that the Scheme excluded other operators from "end-to-end" route only by fictionally enabling the Transport authority to have issued permits notwithstanding any provision in the Scheme framed by the Undertaking. Two, it prohibited grant of any new permit after 30-6-1990 which overlapped whole or part of notified route, that is, the Legislature while accepting the interpretation placed by this Court on construction of Scheme prepared under Section 68-C legislatively removed the hurdle in grant of permits on notified route in past, validated the grant so made but prohibited any grant in future. Sections 3, 4, 5 and 10 are directed towards regularising and validating the permits granted between 1976 and 30-6-1990, whereas Sections 6 and 7 achieve the latter objective. Section 3 is the main section. Its sub-sections (1) and (2) empower a Regional Transport Authority to grant, renew or vary conditions of permit of a small operator, which, according to the explanation to the section, means any stage carriage operator holding not more than five stage carriage permits, to ply on a notified route or part of it notwithstanding anything contained in any draft scheme. Sub-section (3) of Section 3 provides that during the period the permit referred to under sub-section (1) or (2) was in force the draft scheme shall stand modified to that extent. Sub-section (4) makes the provisions of Chapter V of the Act applicable to grant, renewal or variation of permit. Section 5 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 10 validates the grant of permit retrospectively. Section 3 thus created power in the Transport authority to grant, renew, vary or alter permit from 1976 and Section 10 validated such grant notwithstanding anything to the contrary in the new Act. There was no challenge by the State Transport Undertaking to these provisions by which the grant of permits in favour of the operators between 1976 and 1990 has been permitted and validated."
49. While considering the purpose of the State enactment, the Supreme Court held thus :-
"8. Section 6 like Section 3 has four sub-sections. Sub-sections (1) to (3) deal with renewal of permit or modification of condition therein in accordance with same procedure as applied to renewal or variation under Chapter V of the Act. But sub-section (4) debars the authority from issuing any fresh permit. It reads as under:
"Notwithstanding anything contained in this Act no new permit shall be granted under this Act to any person on any route covered by an approved scheme."
This section unlike other sections comes in operation from 30.6.1990. Thus from 30.6.1990 the Regional Transport Authority is not empowered to grant any new permit to any operator overlapping whole or part of notified route. But so far permits, grant of which has been validated by 30.6.1990, would be renewable under this section even after 30.6.1990. The effect of Section 6, therefore, is that those operators who were granted permits between 1976 to 30.6.1990 would be entitled to seek renewal but the authorities would not be entitled to grant fresh permit after that date. Validity of even sub-sections (1) and (2) was not challenged by the Undertaking. And sub-section (4) cannot be challenged by the appellants as it is in keeping with Chapter VI of the new Act. It is further reinforced by Section 7 which abates all proceedings pending for grant of permit on a notified route before any authority or court in appeal."
50. In GAJARAJ SINGH VS. STATE TRANSPORT AAPPELLATE TRIBUNAL, , a three Judges Bench of the Supreme Court held that a right to renew permit under section 81 is not a vested or accrued right but a privilege to get renewal according to law in operation and after compliance with the preconditions and abiding the law. In that context, their Lordships of the Supreme Court held thus :-
"38. It is settled law that grant of renewal is a fresh grant though it breathes life into the operation of the previous lease or licence granted as per existing appropriate provisions of the Act, rules or orders or acts intra vires or as per the law in operation as on the date of renewal. The right to get renewal of a permit under the Act is not a vested right but a privilege subject to fulfilment of the conditions precedent enumerated under the Act. Under Section 58 of the Repealed Act, renewal of a permit is a preferential right and refusal thereof is an exception. But the Act expresses different intention. Sections 66, 70, 71 and 80 prescribe procedure for making application and compliance of the conditions mentioned therein. Existence of the provisions of the Act consistent with the Repealed Act is a precondition. Grant of renewal under Section 81 is a discretion given to the authority (STA or RTA) subject to the conditions and the requirement of law. Discretion given by a statute connotes making a choice between competing considerations according to rules of reason and justice and not arbitrary or whim but legal and regular. Sections 70 and 71 read with Section 81 do indicate that grant of permit or renewal thereof is not a matter of right or course. It is subject of rejection for reasons to be recorded in support thereof. Therefore, right to renewal of a permit under Section 81 is not a vested or accrued right but a privilege to get renewal according to law in operation and after compliance with the preconditions and abiding the law."
51. The Supreme Court in the same pronouncement while considering the scope and effect of Repeal in respect of draft scheme not having been approved, proceeded to hold thus:-
"43. So, if no action under the Repealed Act was set in motion before 1-7-1989, by a valid application for renewal of a permit, there was no right acquired or accrued to pursue the remedy under the Act. The privilege to obtain renewal of a permit is not an accrued right. Section 58(2) of the Repealed Act gives, as stated supra, preferential right to a holder of a permit for renewal thereof. Section 71 of the Act gives preferential right in favour of STU for grant of permit in Chapter V which is not available under the Repealed Act. Therefore, even for grant of a permit or a renewal under Section 72 or 81, the STU is entitled to preferential right over the private citizens. Thereby, the Act manifests intention inconsistent with and incompatible to that in Chapter IV of the Repealed Act. Similarly, even on the approved routes under a scheme framed in Chapter IV-A, an exception has been carved out in the scheme with a non obstante clause in favour of STU, which is a self-operative law by itself. The rights of the existing operators for renewal thereof under Section 68-F(1-D) under the Repealed Act were saved. But, under the Act, Chapter VI does not speak of renewal of the permits to the private operators, though permits were saved in the scheme itself. In other words, Chapter VI manifested inconsistency in its operation from the law in Chapter IV-A of the Repealed Act. Similarly, other provisions are inconsistent with those in Act 4 of 1939 which exist in the Act as are apparent but they are not relevant for our present purpose and hence need no elaboration. Therefore, clause (a) of sub-section (2) would not get attracted, even if it were to apply to grant of permit being a "thing done" as contended by Shri Venugopal. So, any permit issued to operate a stage carriage under the Repealed Act would survive, by virtue of clause (b) of sub-section (2) of Section 217 of the Act by fictional operation of law; and this would be on the same conditions and for the same period mentioned under the Repealed Act, as if the Act was not enacted. Any other view would tantamount to allowing the Repealed Act to remain in operation in perpetuity simultaneously with the operation of the Act. Both cannot coexist in the same shelter.
X x x x
46. We, therefore hold that grant of renewal of the stage carriage permit should necessarily be preceded by a grant of a permit to stage carriage under Section 72, in accordance with the procedure laid down in Sections 70 and 71. This should be made before the expiry of the period prescribed in the permit granted under the Repealed Act. Therefore, for stage carriage permits granted under Chapter IV of the Repealed Act, if they stand to expire or expired after 1-7-1989, without any pending application for renewal having been made under Section 58 as on 1-7-1989, fresh applications under Section 70 should be filed and after consideration under Section 71, permits be obtained as per law under Section 72. If there is any delay to obtain permits pending consideration, by operation of Section 76, to avoid hiatus in continued operation of providing stage carriage service, Section 87 gives power to grant temporary permits without following the procedure laid down in Section 70. In Mithilesh Garg v. Union of India this Court had laid down different criteria for grant of inter-region, intra-region and inter-State permits under the Act under Sections 88 and 80 of the Act which did not find place in the Repealed Act. It was held that such distinction was neither discriminatory nor violative of Article 14 of the Constitution. Thus considered, the argument of arbitrariness, discrimination or avoidable inconvenience to the holders of permits etc. under the Repealed Act and to the travelling public would be hypothetical and without force."
47. The Supreme Court further held in the same pronouncement that every one is free to obtain permit under the Nationalised Scheme after the expiry of the period for which the permit was granted under the Repeal Act and further held thus :-
"It is settled law that the scheme approved under Chapter IV-A, which is equivalent to Chapter VI of the Act, is a self-contained and self-operative scheme and is a law by itself. The scheme operates to the exclusion of private operators with non obstante clause that the STU should obtain permits to run stage carriages in the notified area, routes or a portion thereof to provide co-ordinated, efficient, adequate and economical road Transport service. Thereby the right to apply for and obtain a stage carriage permit has been frozen to all private operators, except as saved under the scheme itself. Until the scheme gets modified or cancelled by the State it would continue to be in operation. We find no inconsistency under the Repealed Act and the Act in this behalf. Resultantly, all schemes remain operative under Section 217(2)(a) of the Act.
48. The question, therefore, is whether a private operator saved under the scheme is not liable to get permits under Section 72 and renewal of the permits under Section 81 of the Act? It is true that Section 68-F(1-D) and Section 68-F(1-F) of the Repealed Act had prescribed that renewal of the permits granted to the private operators and STU should be renewed under the scheme; similar provision does not find place in Chapter VI of the Act. Rules do prescribe procedure to apply for renewal by the private operators as well as STU but the rules or procedure do not confer substantive right to renewal of the permits granted under the scheme; when Chapter VI is sub silentio, rules cannot travel beyond the Act."
53. There cannot be any controversy with respect to the law laid down by the Supreme Court in T.P.K.Tilakavathy's case where the scope, purport and object of the provisions have been considered by their Lordships of the Supreme Court and the material portion of the judgment has been extracted above. The law laid down in the said pronouncement should have been applied by the State Transport Appellate Tribunal and so also by this Court.
54. In the present case, the Regional Transport Authority invited applications during the year 1964 and granted two permits in favour of two out of 54 applicants by proceedings dated 25.4.64. As against the same, appeals were preferred before the State Transport Appellate Tribunal. The State Transport Appellate Tribunal, by order dated 5.5.78, allowed the appeal preferred by the writ petitioner herein, set aside the order of the Regional Transport Authority granting permit in favour of the first respondent herein and directed grant of issue of permit in favour of the writ petitioner herein, who is the appellant in Appeal No.1765/66. The said proceedings of the State Transport Appellate Tribunal dated 5.5.78 challenged in revision. This Court by order dated 25.11.81, set aside the proceedings of the State Transport Appellate Tribunal dated 5.5.78, remitted the matter back to the State Transport Appellate Tribunal with a direction that till the draft scheme is finalised, the appeal shall be kept pending and after the finalisation of the scheme, the appeal shall be disposed of on merits and according to law as has been laid down by the Supreme Court in SLP No.941/78 by order dated 2.9.80.
55. It has also been rightly pointed out by the counsel appearing on either side, the other permit granted in favour of M/s.LRN Bus Service is intact and being operated, though it was also the subject matter of consideration before the State Transport Appellate Tribunal as in respect of two routes, all the eleven appellants challenged the grant and pressed their claims. In other words, pending the appeal before the State Transport Appellate Tribunal, the grant by it in favour of one or more of the applicants was at large and the grant has to be either confirmed or modified or set aside on merits according to law and as held in ANNA TRANSPORT CORPORATION VS. SAFE SERVICE LTD. . This is the settled legal position. The introduction of 1992 Special Provisions Act is the cause for further delay and prolongation of litigation was also due to various proceedings initiated by one side or the other.
56. The first point has to be taken up for consideration and only for that the statutory provisions have already been referred in detail. This Court also points out that the draft scheme in respect of route Salem to Erode, which was published on 1.7.76 stands lapsed on and after 30.6.90 as the scheme has not been approved within one year from the date of commencement of The Motor Vehicles Act, 1988, as already pointed out. This is admitted by the learned counsel appearing on either side. In fact the appeal was directed to be kept pending in view of the draft scheme and awaiting the finalisation of the scheme. The scheme not having been approved, the draft scheme lapsed on 30.6.90, which is the legal position. The legal effect would be that the draft scheme has neither been proposed nor notified and legal consequences shall be taken to its logical end by applying the rule of fiction. In other words, no scheme has either been proposed or notified at all in respect of the route Salem to Erode via Sankari at any point of time.
57. Whether there were area schemes or not we are not concerned nor such schemes are being relied upon by the respondents or brought to the notice of this Court, much less by the 4th respondent or the first respondent nor the details of the same have been placed before the State Transport Appellate Tribunal or before this Court. The only scheme relied upon and put against the petitioner being, which was at the stage of draft and which lapsed on 1.7.90. If the scheme is neither deemed to have been proposed or notified, then in terms of the pronouncement in PANDIAN ROADWAYS CORPORATION LTD. VS. M.A. EGAPPAN , the operators in whose favour permits were granted by the Regional Transport Authority or the appellate authority or any other or further period, will be entitled to operate in the route as there is no prohibition or embargo prohibiting the operation in terms of Chapter IV-A of the 1939 Act or Chapter VI of the 1988 Act and the grant or renewal should have been considered on merits in the light of the pronouncement in ANNA TRANSPORT CORPORATION VS. SAFE SERVICE LTD. . No decision taking a contra view has been cited before this Court. Before the Division Bench of this Court in W.A. No.1498 to 1500 of 1994, etc., and ASSOCIATED BUS SERVICES VS. SMMS MOTOR SERVICE reported in 1995 WLR 454 such a contingency had not arisen for consideration nor such a contention was raised or decided.
58. Had the State Transport Appellate Authority decided the appeal on merits immediately after the lapse of the draft scheme, the appeal should have been disposed of on merits and according to law considering the merits of claims of each of the applicants in respect of which appeals were pending or kept pending as per directions issued by this Court.
59. There has been certain other proceedings at the instance of the petitioner also, but that has no bearing on the point that arises for consideration, as the appeal has been disposed simply as abated in terms of Section 7 of the The Tamil Nadu Act 41 of 1992. Objection has been raised by the learned counsel for the respondents that no writ petition is maintainable as against the disposal of the appeal by the State Transport Appellate Tribunal and a revision, if at all is the remedy. This objection cannot be sustained for two reasons : the first being it is belated and the writ petition is pending since 1995 onwards. That apart, the abatement of the appeal is in terms of the 1992 Special Provisions Act, which is a special enactment and, therefore, as against the proceedings of the State Transport Appellate Tribunal holding that the appeal stands abated, which order is impugned in these writ petitions, a remedy of writ is well maintainable and no revision is maintainable. The objection raised cannot be sustained.
60. The State Transport Appellate Tribunal overlooking statutory provisions of the 1992 Special Provisions Act and on a misconstruction as well held that the appeal stands abated. It is not disputed that the applications were invited long prior to the notification of the draft scheme. Be it draft or final, the 1992 Special Provisions Act applies or operates if the statutory conditions exist and not otherwise. There are kinds or categories of permits or grants, which will fall outside the scope of the 1992 Special Provisions Act as the Act operated or covers for limited period. The Act is a validating enactment of certain categories of grant already granted in violation of legal provisions as pointed out in Egappan's case by the Supreme Court. In other words, the 1992 Special Provisions Act will not apply to the grant in question, which is the contention advanced by the learned senior counsel appearing for the petitioner. There is force in the said contention.
61. The objects of the Act, as already pointed out, is to allow and save the existing small bus operators to ply such carriages on any portion of the area or route covered by the scheme. The object is to save permits, which were granted till the pronouncement of the Supreme Court in PANDIAN ROADWAYS CORPORATION LTD. VS. M.A. EGAPPAN .
62. As already pointed out, in this case as the draft scheme stands lapsed on 1.7.90 and it is neither deemed to have been proposed or notified and there was no impediment for the continuance of the operation or grant of permit under the 1988 Motor Vehicles Act, which has already been granted or which grant is the subject of variation or modification by the appellate authority. In other words, the grant in respect of which the writ petitioner challenges and the first respondent claims is not being covered by a draft scheme or approved scheme. There being no prohibition for operating on the route Salem to Erode, the case on hand, will not fall within the ambit of The Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992 and Section 7 of the said Act will not operate nor it gets attracted. In other words, in respect of the route as well as grant, the provisions of T.N. Act 42 of 1992 has no application at all.
63. In terms of the statutory provisions, the Act shall apply in relation to draft schemes, approved schemes and notified schemes. Section 2 (a) and (b) defines the expression "approved scheme" and "draft scheme". In this case, as already pointed out, there is neither a draft scheme nor is there an approved scheme in respect of the route in question. Therefore, Section 3 of the Act will have no application. Section 4 of the Act provides that all permits and temporary permits granted, renewed and varied under The Motor Vehicles Act notwithstanding anything contained in a draft scheme or an approved scheme shall be valid for the period for which such permits were granted, renewed or varied.
64. Section 7 of The Motor Vehicles (Special Provisions) Act, 1992, reads thus :
"7. Pending applications and appeals for grant of new permits to abate - Notwithstanding anything contained in any law for the time being in force, every application for grant of new permit on a notified route and all appeals arising therefrom or relating thereto, made or preferred before the date of publication of this Act in the Tamil Nadu Government Gazette, and pending before any court with any officer, authority or tribunal constituted under the Motor Vehicles Act, on the said date shall abate."
Neither Section 7 applies nor the appeal pending before the State Transport Appellate Tribunal with respect to the case on hand abates. The view taken by the State Transport Appellate Tribunal to the contra cannot be sustained.
65. One of the incidental aspects, which was highlighted by either side being, what is the meaning of the expression "new permits"? appearing in Section 7 of The Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992. Section 2(e) of the Special Provisions Act, 1992 provides that words and expressions used in the Act and not defined, but defined in the Motor Vehicles Act, 1988 shall have the same meaning respectively assigned to them in that Act. Section 2 is the definition Section in The Motor Vehicles Act, 1988. Section 2(31) defines the expression "permit". By the said definition "new permit" means a permit in respect of which an application is or was pending and is yet to be granted till 1992, when Tamil Nadu Act came to be published in respect of a notified route or appeals arising therefrom or relating thereto made or preferred before the date of publication of the Act.
66. In other words, if a permit has already been granted before the publication of The Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992, then the same will not fall under the expression "new permit" appearing in Sub-Section (4) of Section 6 or Section 7 of the Act. Sub section (4) of Section 6 reads thus:-
"Notwithstanding anything contained in this Act, no new permit shall be granted under this Act to any person on any route covered by the draft scheme."
67. As already pointed out, The Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992 is in effect a validating enactment by which the State Legislature has validated grants made in favour of small bus operators, who were already operating their busses on the sectors of notified route and on the routes covered by a draft scheme so that they could continue their operations. The Supreme Court in Pandian Road Ways Corporation Vs. M.A.Egappan, cited supra, held that no operator could be permitted to operate in the routes notified by the scheme unless the operation or permit to operate is included in Annexure-II to the Scheme. Factually, before the said decision of the Supreme Court, innumerable permits have been issued in favour of small bus operators on the construction that overlapping in respect of part of the approved scheme is permissible in law and such operators are permitted to operate or continue to operate. This view has been held to be illegal and no operator according to the pronouncement in M.A.Egappan's case shall be permitted to operate in the entire scheme area or approved scheme, unless the scheme itself excludes a particular route or operator or a sector or otherwise overlapping in any route by incorporating the operator in Annexure-II to the Scheme. As innumerable numbers of such small bus operators were granted permits to validate such grants alone, the State Legislature has stepped in and validated such grants, which were illegal but for the validating Act (Tamil Nadu Act 41 of 1992). The invalidation of such grants being the sole object of the Tamil Nadu Act, it cannot be assumed or held that the T.N. Act covers all cases of grant or grant of permit even if there is no scheme at all in operation or notified.
68. The Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992 is not a Legislation which would enable anyone to apply for or secure a permit or fresh permit under the Act, but the Act only validated whatever permits, which were granted in favour of small bus operators as an operator excluded from the clutches of the scheme, if any.
69. In other words, it is a statutory exemption granted in favour of particular class of grants or operators from the rigour of Chapter IV-A of the 1938 Act, since repealed or Chapter VI of the 1988 Motor Vehicles Act. It is in effect a special legislation exempting the particular class of grants, which overlapped the scheme or any portion or part thereof, less such operator or grantee has to forthwith stop the operation as laid down in Pandian Roadways Corporation Vs. Egappan by the Supreme Court. Therefore, while validating such permits already granted in favour of small bus operators as seen from Sections 3,4 and 5 of the Act, an existing small bus operator also has been saved. To make it clear it has been further declared that no new permit shall be granted in terms of Section 6(4) of the Act. In other words, under the 1992 Special Provisions Act, no new permit shall be granted at all. A reading of sub section (4) of Section 6 as well as Section 7, in the considered view of this court, would show that applications which were pending in respect of permits, if granted would run counter to the pronouncement of the Supreme Court in M.A.Egappan's case, cannot be granted and all such applications will abate and it will not cover the case on hand.
70. However, if a grant has already been made and appeal is pending which route is not covered by a scheme and the permit not being covered either by a draft scheme or an approved scheme, there can be no bar for the application being disposed of on merits. In terms of The Tamil Nadu Motor Vehicles Act, 1988, such a permit is not a new permit which may fall under Sections 6 (4) or 7 of the Special Provisions Act, 1992. If there is no scheme be it a draft or approved scheme or even if a draft scheme lapses in terms of Section 217(2)(e) read with Section 100 of the Tamil Nadu Motor Vehicles Act, 1988 and such draft scheme if it is not approved within one year from the date of commencement of The Motor Vehicles At, 1988, then the same lapses and the effect of such lapse would be that there was no proposal at all for nationalisation in terms of Chapter IV A of the 1939 Act or Chapter VI of the 1988 Act and such grants or routes will fall under the Principal Act, viz., 1988 Motor Vehicles Act and beyond the purview or scope of Tamil Nadu Act 41 of 1992.
71. Thus, in the circumstances, this court holds that the route being not covered by a valid scheme, nor even covered by a draft scheme and the grant having already been made in favour of the two applicants out of 52 applicants, it will fall outside the Tamil Nadu Act 41 of 1992 and all application or appeal arising thereof will not abate. In other words, the provisions of The Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992 will have no application at all to such cases. The contrary view of the State Transport Appellate Tribunal cannot be sustained as it is a misconstruction and misconception of the statutory provisions of the Tamil Nadu Act 41 of 1992. While construing the special enactment, which is declaratory and which was brought to validate certain grants granted during the particular period is not an enactment, which will replace The Motor Vehicles Act, 1988.
72. In Associated Bus Services Vs. SMMS Motor Service, reported in 1995 WLR 454, a Division Bench of this Court had occasion to consider a pending Appeal preferred against the refusal to grant such carriage permit on a route which overlapped the notified route. The Division Bench in that context held that such application stood abated. But in this case, there is no scheme at all in force as the draft scheme published has already lapsed and consequently the present case will not attract Section 7 nor fall under Section 7. Therefore, on facts, the said Division Bench pronouncement relied upon by the counsel for the respondent is clearly distinguishable and it has no application.
73. While considering the scope of Section 217(e) and Section 100(4) of The Motor Vehicles Act, 1988, in Ram Krishna Verma Vs. State of U.P. , the Supreme Court held that a draft scheme published under Section 68(C) of the Repealed Act shall lapse if it is not approved within one year from 01.07.1989, the date on which the 1988 Act came into force. In the present case, the draft scheme lapsed on 30.06.1990. The effect of it would be even the draft scheme has not been proposed or made at all and the consequence would be that existing operators in whose favour permits have been granted by the Regional Transport Authority and even if the appeal is pending thereof, entitled to agitate their claims either before the Regional Transport Authority or before the Appellate Authority and the same will not lapse or abate as such a grant will not fall under the purview of Tamil Nadu Act, 42 of 1992. In terms of Section 100(4) read with Section 217(2)(e) of the Act, any draft scheme pending beyond a period of one year would be deemed to have lapsed on account of failure or omission to approve the scheme. Applying the rule of fiction, the provision that the draft scheme would lapse has to be taken to its logical end, which would mean giving full effect, as has been held in American Home Products Corporation Vs. MAC Laboratories Pvt. Ltd. and another .
74. In terms of Section 7 of Tamil Nadu Act, 1992, all applications for grant of new permits on a notified route and all appeal arising therefrom or relating thereto shall abate. In other words, only those applications for permits on a scheme either draft or approved scheme, all applications arising thereto alone shall abate. If there is no scheme, be it a draft or approved as on the date of publication of the 1992, The Special Provisions Act, then the question of abatement of appeal or application or matters relating to grant of permit will not arise at all and the appeal has to be decided on merits. The 1992 Special Provisions Act came to be published on 31.7.92.
75. On the date of publication of the 1992 Special Provisions Act, in the present case, there was neither a draft scheme nor an approved scheme in force as the draft scheme has lapsed on and from 01.7.90. Application for grant or appeal arising thereto in respect of a notified route be it draft or approved alone abates and not an application or appeal in respect of which there is no scheme be it draft or notified will not abate nor the provisions of The Tamil Nadu Special Provisions Act applies or operates. When there is no scheme at all in the eye of law, as already pointed out, Section 7 will have no application.
76. Section 10 validates the proceedings taken for the grant of and all orders passed granting permits or renewal or transfer of such permits during the period commencing from 4.6.26 and ending with 31.7.92, viz., the date of publication of the 1992 Special Provisions Act. In this case, the permit is deemed to have been granted in favour of one or the other parties as early as 25.6.64, which was the subject matter of pending appeals and the State Transport Appellate Tribunal granted permit in favour of the writ petitioner on 5.5.78, which was the subject matter of challenge in further revisions thereto. The merits of each claimant has to be considered as on the date of application or the last date on which the applications have to be submitted or as on material dates as laid down in ANNA TRANSPORT CORPORATION VS. SAFE SERVICE LTD., by the Supreme Court and in terms of the existing provisions.
77. Section 11 of the 1992 Special Provisions Act provides that the provisions of the 1992 Special Provisions Act shall be in addition to and not in derogation of any other law for the time being in force. Thereby the State Legislature had made it clear the provisions of the 1992 Special Provisions Act is in addition to the provisions of the existing Motor Vehicles Act, 1988. The grant either in favour of the first respondent by the Regional Transport authority and the modification by the State Transport Appellate Tribunal in favour of the writ petitioner setting aside the orders of grant, and remitting the matter to the State Transport Appellate Tribunal in the revision petition by this Court has to be decided validly in terms of The Motor Vehicles Act, 1988 and it neither lapses nor abates. Consequently, it follows that the grant in respect of the contesting parties, who have submitted their applications has to be decided on merits as there is no abatement of the appeal which was kept pending on the file of the State Transport Appellate Tribunal.
78. An identical view has been taken by this Court in W.P. No.16673 of 1995 (GANDIBEN TRANSPORTS VS. THE REGIONAL TRANSPORT AUTHORITY, CHENGALPET DISTRICT).
79. As already pointed out, in terms of Sub-section (4) of Section 100 read with Section 217(2)(e), a draft scheme already published stands lapsed on and from 30.6.90. The draft scheme which has been published before 1988 Motor Vehicles Act and it is yet to be approved. If such publication of draft scheme lapse, the effect of it would be obvious, namely, there could be no indefinite continuance of the draft scheme nor there could be approval of the scheme or any further proceedings thereof. In this respect it is also pointed out, rightly too, that the lapse of draft scheme is automatic and no further action whatsoever is required. The effect of such lapse has to be considered.
80. In an identical situation, which arose under Section 11-A of The Land Acquisition Act, the Supreme Court had occasion to consider the effect of lapse of notification. Section 11-A of The Land Acquisition Act, which provides that if no award is made within a period of two years from the date of publication of declaration, the entire proceedings for the acquisition of the land shall lapse. In this respect, in STATE OF U.P. VS. RAJIV GUPTA , the Supreme Court held thus :-
5. Its bare reading indicates and emphasises the limitation within which the award should be made and has been statutorily determined, namely, the Collector shall make an award within a period of two years from the date of the publication of the declaration. It is common knowledge that after declaration was published, years used to roll by to make the award and the owners of the lands were put to great hardship. Parliament intended to relieve the owners of the lands from this hardship and pegging of the price prevailing as on date of publication of Section 4(1) notification. It is, therefore, a mandatory duty cast on the Land Acquisition Collector to make the award strictly in accordance with the limitation under Section 11-A. If no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. In other words, on expiry of two years from the date of the publication of the declaration unless the proviso is attracted, if no award is made in the meantime, in the eye of law the proceedings initiated under Section 4(1) of the Act culminated in the declaration made under Section 6 shall stand lapsed and no proceedings, in the eye of law thereafter do exist, to take further action."
Following the above pronouncement and adopting the same reasoning, this Court holds that the draft scheme published cannot be acted upon at all nor it could be proceeded further and it is only a notification on paper and it is deemed never to have been made or it is a still born notification.
81. In the light of the above discussions and in the light of the law laid down by the Supreme Court in the above two pronouncement and in Gajraj Singh's case, this Court holds that the conclusion of the State Transport Appellate Tribunal that the appeals stand abated cannot be sustained and the proceedings of the State Transport Appellate Tribunal holding that the appeal abated is set aside as not reflecting the correct legal position, while adding that the interpretation placed by the Tribunal cannot be sustained.
82. The grant in question in respect of a route has its origin to 1964 and it is kept pending since 1964.. Much could be said against the parties and in fact the original papers in the writ petition has been reconstructed on more than two or three occasions and even as on today also the original papers are not traceable and on the basis of the reconstructed papers alone this writ petition has been taken up for disposal. In fact the original records before the State Transport Appellate Tribunal was also not available and not traceable and appeal has also been, considered as seen from the order passed in the impugned proceedings by the State Transport Appellate Tribunal, on the basis of copies furnished by the parties before it.
83. Had the State Transport Appellate Tribunal decided the merits of the contesting claims, namely, the writ petitioner and the first respondent or other applicants, it may not be necessary for this Court to remit the matter back to the State Transport Appellate Tribunal. This Court has to necessarily remit the matter back to the State Transport Appellate Tribunal for fresh consideration on merits and according to law with respect to all the appeals, which were remitted back to it by the orders passed by this Court in CRP No.1500/78 dated 25.11.81 and the connected orders.
84. The 3rd respondent, State Transport Appellate Tribunal is directed to restore all the appeals, decide the same on merits and according to law. It is needless to add that the State Transport Appellate Tribunal shall decide the appeal without further delay since grant in question is the subject matter of pending proceedings for the past four decades or thereabout. The State Transport Appellate Tribunal shall give priority and take up the appeals and dispose of the same after issuing notice of hearing to the appellants and respondents in all the connected appeals, which were disposed of as abated.
85. The three operators, who have been operating as per the interim orders passed on 19.7.78 have been continuously operating as of now as well. This Court directs that Status Quo as to the operation of the buses as on this date shall be maintained till the disposal of the appeal by the State Transport Appellate Tribunal. In other words, those who have been operating on the route Salem to Erode via Sankari in respect of the two grants shall continue to operate as such operation shall be in the interest of the travelling public and their interest has to be taken into consideration and more so in view of the passage of four decades and it is admitted that there is demand for such operations.
86. In the result, W.P. No.12826/95 is allowed and the matter is remitted back to the State Transport Appellate Tribunal for de novo consideration of appeal on merits. The parties shall bear their respective costs. Consequently, connected miscellaneous petitions are closed.
87. As the writ petition (W.P. No.12826/95) is allowed quashing the impugned order passed by the State Transport Appellate Tribunal and the matter is remitted back to the State Transport Appellate Tribunal for de novo consideration on merits of the respective claim of the appellants in all the appeals, in the other writ petition W.P. No.12827/95, no orders are required and it is closed as unnecessary.