Madras High Court
Anna Transport Corporaiton Limited, ... vs Smt. M. Uma Maheswari, Propriterix, Sri ... on 21 December, 2001
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. Since the writ petitions are filed against the common order of the State Transport Appellate Tribunal, Madras/third respondent herein, they are being disposed of by the following Common Order. Anna Transport Corporation has filed W.P.Nos. 13114 to 13117 of 93 questioning the order of the third respondent in Appeal No. 238 of 92 etc. dated 8-6-93, in granting permit in favour of the first respondent. Against the very same order, the private operators/objectors before the third respondent herein filed W.P.Nos. 14651 to 14654 of 93.
2. For convenience, I shall refer the case of the Anna Transport Corporation in W.P.No. 13114 of 93. The petitioner-Corporation is a State owned Transport Undertaking within the meaning of Section 2(42) of the Motor Vehicles Act, operating a large number of stage carriage services in the entire Salem District and also on the adjoining inter-district and inter-State routes, in the interest of the travelling public. The first respondent, who is a stage carriage operator in the Salem District, has applied for grant of one stage carriage permit, in respect of the route Komarapalayam to Edappadi, under the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") before the second respondent-The Regional Transport Authority, Salem at Namakkal. The route falls under the classification of ordinary stage carriage service, as contemplated under the Tamil Nadu Motor Vehicles Rules, 1989 (hereinafter referred to as "the Rules"). The route applied for, overlaps on the approved scheme, in respect of the route Edappady Bus Stand to Kumarapalayam, published in the Tamil Nadu Government Gazette dated 22-6-90. This scheme was under challenge before this Court in W.P.Nos. 7201 of 90 etc., batch, along with other 249 approved schemes. All the schemes including the schemes relied before the 2nd respondent, were struck down by a Division Bench of this Court, by its Judgment dated31-10-90. Aggrieved by the same, the petitioner Corporation along with its other sister transport undertakings, preferred Special Leave Petitions before the Supreme Court. When the Special Leave Petitions were pending before the Supreme Court, as against the judgment of the Division Bench of this Court, quashing the approved schemes, the apex Court, in a case arising from the State of Rajasthan, involving identical question of law, took a contrary view to that of this court and impliedly overruled the said judgment. The authority after taking into account the pendency of the appeal on the file of the Supreme Court as well as part of the grant route applied for, overlaps on the approved scheme route, rejected the application, by its order dated 19-5-92. Aggrieved by the said order of the second respondent, the first respondent preferred Appeal No. 238 of 1992 on the file of the third respondent. During the pendency of the appeal on the file of the third respondent, the apex Court set aside the judgment of the Division Bench of this Court, made in batch of writ petitions, by its order dated 16-4-93 and consequently the schemes are restored and as such during the pendency of the appeal, that there is an approved scheme, in respect of the route Edappadi bus stand to Kumarapalayam, on which the grant route applied for, overlaps and that the overlapping sector on the scheme is in between Kumarapalayam to Annamarkoil. Pending appeal on the file of the third respondent, the State of Tamil Nadu, notified Tamil Nadu Motor Vehicles (Special Provisions) Act, popularly known as Tamil Nadu Act 41/1992. As per Section 7 of the Act 41 of 1992, "every application for the grant of new permit on a notified route and all appeals, arising therefrom or relating thereto, made or prepared before the date of the publication of this Act, in the Tamil Nadu Government Gazette and pending before any Court or with any Officer, authority or Tribunal, on the said date shall stand abate". On the date of the publication of this Act in the Gazette, the appeal filed by the first respondent was pending and further it is an admitted case that the grant route applied for overlaps on the notified route and consequently the appeal filed by the first respondent is hit by section 7 of the Tamil Nadu Act 41/1992 and on the date when the appeal was heard by the third respondent, namely, 8-6-93, that there is no appeal pending in the eye of law, as the same stand abated on the date of notification of the Tamil Nadu Act 41/1992. When the appeal was taken up for hearing on 8-6-93, the petitioner-Corporation brought to the notice of the Tribunal that as the grant route applied for overlaps on the approved scheme referred to above and the appeal is hit by section 7 of the Tamil Nadu Act 41/92. The third respondent, relying upon item (3) of Schedule II of the scheme, held that the schemes relied upon by the petitioner-Corporation does not affect the grant route applied for by the first respondent, as that being mofussil service, whereas the scheme contemplates town services. On that ground, the third respondent overlooked the objections of the petitioner-Corporation and granted the permit in favour of the first respondent by its proceedings dated 8 -6-93. Aggrieved by the said order, the petitioner-Corporation has preferred the present writ petition. Similar averments have been made by the very same Corporation in respect of other routes which overlaps the approved scheme. On the very same grounds, the private operators/objectors also filed the other writ petitions as stated above.
3. Heard the learned counsel for the petitioners as well as respondents.
4. The point for consideration in these writ petitions is whether the order of the third respondent granting permit overlapping the approved scheme is sustainable or not?
5. First I shall consider the maintainability of the writ petitions, namely, W.P.Nos. 14651 to 14654 of 93 filed by the private operators. By relying on a decision of the Supreme Court in MITHILESH RANI v. REGIONAL TRANSPORT AUTHORITY, DEHRADUN, , Mr. V.A. Sadagopan, learned counsel appearing for the grantee, would contend that the writ petitions filed by the private operators are not maintainable, since they cannot rely the above scheme and it is for the State Transport Corporation to question the same. First of all, against the very same order of the third respondent-State Transport Appellate Tribunal, Anna Transport Corporation has filed Writ Petition Nos. 13114 to 13117 of 93, in such a circumstance, the said objection is liable to be rejected. The Supreme Court in the decision referred to above has held that, (para 14) "14.....Copy of the approved scheme or draft scheme, if any, has not been placed before us. We do not know whether the scheme excludes the private operators wholly or partly. Another and more important circumstance is that the State Transport Undertaking has not chosen to challenge the grant of permits to the appellants. It is only the respondents 3 and 4 who are operating on a route which partially overlaps the route concerned herein that have chosen to come forward. We are not inclined to entertain the said objection at their instance, more particularly, when a copy of the scheme(s) even has not been filed... ."
Their Lordships declined to go into the said question. In our case, it was demonstrated before me that the petitioners in W.P.Nos. 14651 to 14654 of 93 are stage carriage operators operating on the route granted in favour of the third respondent therein and has got a substantial sector of the permit granted in their favour. They specifically asserted that the grant made in favour of the third respondent therein is violation of approved scheme of Nationalisation, contrary to the provisions of the Act and the Rules made thereunder. In this regard, Mr. M. Krishnappan, learned counsel for the private operaotors/objectors very much relied on a Division Bench judgment of this Court in Writ Appeal No. 331 of 1994 and Writ Petition Nos. 22605/93, 3
937. 3938, 4110 and 4111 of 94 dated 29-6-94 (V. GOWRI AND OTHERS v. RAMAN ROADWAYS, REPRESENTED BY ITS PROPRIETOR R. VENKATAVARADAN AND OTHERS). In the said common judgment, similar question was considered by the Division Bench. An argument was placed before the Division Bench that as the Act has dispensed with the requirement of calling for objections, and the existing operators have no right to object to the grant of permit, they cannot have a right to challenge the variation granted. After referring to an earlier Division Bench decision of this Court in PATTUKOTTAI AZHAGIRI TRANSPORT CORPORATION LIMITED v. REGIONAL TRANSPORT AUTHORITY, THIRUVANNAMALAI (Writ Appeal No. 978 of 1993 dated 4th October, 1993) as well as a decision of the Supreme Court in MITHILESH GARG v. UNION OF INDIA , the Division Bench has held that the existing operators can also have a say in the matter and the petitions filed are maintainable. The Division Bench decision supports the claim made by the private operators/ objectors. Whereas, in the case before the Supreme Court cited by Mr. Sadagopan (cited supra), as copy of the approved scheme or draft scheme was not placed before the Court, the Court was not aware of the terms of the scheme. Further, the State Transport Undertaking has not chosen to challenge the grant of permit in that case. Here, in our case, the approved scheme is before the Court. The State Transport Undertaking has also filed writ petitions challenging the grant made by the State Transport Appellate Tribunal. In such a circumstance, the decision of the Supreme Court relied on by Mr. Sadagopal is not applicable to his claim and in view of the Division Bench decision of this Court referred to above, I hold that the petitioners in W.P.Nos. 14651 to 14654/93 have locus standi to maintain the said writ petitions.
6. Coming to the merits of the order passed by the State Transport Appellate Tribunal, it was demonstrated before me that the route applied for overlaps on the approved scheme. As rightly argued, the State Transport Appellate Tribunal failed to take note of Section 7 of Tamil Nadu Act 41/92. The following provisions from the Tamil Nadu Motor Vehicles Rules, 1989 are relevant:-
"Rule 3 (e) "City and Town Service" means a service plying in a city or a Municipal Town or any built up place notified in the Tamil Nadu Government Gazette as "City" or "Town" for this purpose by the Transport Authority concerned with the prior concurrence of the State Transport Authority. No route shall lie entirely outside, but atleast one terminus of it shall be within the limits of municipal town or a city or any built up place notified for the purpose. The aggregate distance of a "town" or "City Service" route lying partly within and partly outside the limits of a municipal town or city or any built up place, notified for the purpose shall not exceed 30 kilometres:
(i) "Express Service" means a service plying on route covering a distance of not less than 120 kilometres, the permit for which prescribes that on an average the stage carriage shall stop to pick up or set down passengers only once for every 25 kilometres of the total distance covered by its route, the starting and terminal places being excluded for this purpose:
(p) "Ordinary Service" means a service plying in an area other than the Madras Metropolitan area and routes other than City and Town service routes and excludes an Express Service:"
A perusal of the above statutory provisions clearly shows that the State Transport Appellate Tribunal failed to note that there is no class of services as mofussil, either under the Act or under the Rules, and consequently it (Appellate Tribunal) erred in classifying the service of the first respondent/applicant is one for mofussil and whereas the scheme relied upon by the Transport Corporation is with reference to town services, which is a material error. The relevant clauses from the approved scheme as published in the Tamil Nadu Government Gazette are as under:-
"HOME DEPARTMENT APPROVAL OF SCHEME OF STATE TRANSPORT UNDERTAKING (G.O.Ms.No. 1251, Home (Transport-D), 22nd June, 1990) Schedule I Area of route in relation to which .. EDAPPADY BUS STAND the scheme is proposed. KUMARAPALAYAM.
Schedule II
1.Route (Starting point and terminus ..1.Edapaddy Bus stand with important intermediate to Kumarapalayam stations and route length) or (via) Kullampatty, portion thereof with distance Chettipatty,Thevoor, Annamarkoil, Pamakoodal, Puliyampatty and Government Hospital ( RouteLength:26Kms).
2. xx xx
3. Class of service to be introduced .. Town by the State Transport Under- Service/Ordinary. taking (Metropolitan, Town, Other Services, Ordinary or Express)
4. xx xx
5. xx xx
6. Number of vehicles intended to be .. One-tenth of the kept in reserve to maintain the total number of service and to provide for special buses actually occasions." running on Town routes.
It is contended by the learned counsel for the Transport Corporation that Clause (3) of the Scheme contemplates class of services and corresponding thereto. It is also contended that the Town service/ ordinary service, which means, that the scheme takes within its fold, both the town service and the ordinary service and whereas the interpretation of the Tribunal that the ordinary service contemplated under the Act is within the Town service is a material error, which are writ large on the face of the order. The proviso which forms part of subrule (i) of Rule 3 of the Tamil Nadu Motor Vehicles Rules, 1989 which contemplates express service, which means, in the City or Town an express service may be operated if the granting authority prescribes such a condition in the permit. The finding of the Tribunal that there are services within the town service, express service and ordinary service is a misconceived one. As rightly argued, this proviso has no application to sub-rule (i) of Rule 3; consequently the reasoning of the Tribunal relying upon this proviso cannot be accepted. The schemes that are framed pursuant to Rule 280 of the Rules and in the schemes, Clause (3) of Schedule II contemplates class of service, which are Metropolitan, Town, other service or ordinary/express. A perusal of these classes would go to show that there is no mofussil service contemplated under this format. Therefore, the meaning to be given to each class of service contemplated in the format depends upon the definition contained in Rule 2 of the Rules and inasmuch as there is no mofussil service contemplated, either in the statutory format of the schedule or under the definition clause, the Tribunal committed an error in holding that ordinary service mentioned under the class of services in the scheme is the ordinary service, within the town service is a material error.
7. Further, as per the Tamil Nadu Act 41 of 92 which holds the field, so far as the State of Tamil Nadu, that Act also contemplates no new permit shall be granted under this Act to any person on any route covered by an Approved Scheme. As rightly argued, this Act is meant for stage carriage service and when this section contemplates any route covered by an Approved Scheme route, whether it is town or ordinary or express route, then no class of service can be granted on such approved schemes. When this being the legal position, the Tribunal committed an error in granting permit on the part of the notified route, on the strength of classification of the services, within the stage carriage, which is a material error, apparent on the face of the record.
8. The Tribunal has also committed an error in relying upon the judgment of this Court made in W.P.No. 3584/76 which had been rendered without any reference to any of the provisions of the Act and consequently the same has no binding effect as precedent. As discussed earlier, the classification of services is without any distinction or difference. I have already referred to the Rules framed under the Motor Vehicles Act which defines Town service as well as Ordinary service. Rule 3 (e) defines City and Town service; (i) defines express service; (n) defines Metropolitan service; (o) defines mini-bus; and (p) defines ordinary service. On a reading of various definitions would indicate that ordinary service is other than the town service and, therefore, the application filed by the 3rd respondent for an ordinary service is not maintainable; hence the grant made in his favour by the Tribunal is liable to be set aside. I have already referred to the provisions in the Tamil Nadu Act 41/92. As per Section 6 (4 ) no new permit can be granted on any route covered by an approved scheme irrespective of whether the class of service is ordinary or town service or otherwise. All that is necessary is to find out whether the permit sought to be granted overlaps on an approved scheme route and if that is so, no application can be granted under the terms of that section. Further, the appeal which was pending as on 31-7-92 before the Tribunal automatically stands abated in view of the applicability of the scheme referred to above. It is clear that the grant itself is without jurisdiction.
9. Under these circumstances, the impugned common order of the State Transport Appellate Tribunal, Madras dated 8-6-93 are quashed and all the writ petitions are allowed. No costs. Consequently, connected W.M.Ps., are closed.