SHER SINGH & ORS. v. UNION OF INDIA AND OTHERS

Citation: [1984] 1 S.C.R. 464

Court: Supreme Court of India

Bench: D.A. DESAI, O. CHINNAPPA REDDY, A. VARADARAJAN

Case summary

6605/83, in which the learned Single Judge and' the Division Bench of the High Court repelled the challenge. The Single Judge dismissed the writ petition and the ·Division -Bench upheld t~e order.

Judgment text

SHER SINGH & ORS. v. .. UNION -OF INDiA AND OTHERS :n f? ctober 21, 1983 (D. A. DESAI, 0. CH! NNAPPA REDDY AND A. VARADARAJAN, JJ. J Constitution ofIndia 1950 Article 14 & 19 (/) (g) Motor Vehicles Acf-1939-Secaon 47 (l·H) Preferente to State Transport Corporations for grant of inter-state permit over private operators- Whether denial ofequality before law-Denial ofright to carry on trade. ~. ;"- • Motor Vehicles Act, 1939 Sections 47 (/·H) &'58 (2)-Grant of Jnter·;tate ·permit-Preference to Slate transport Corp'orations-Whether violative of-Articles . . 14 and 19,(! ) (g) ofthe Constitution. · Application/or renewal of existini permit by private operator-Whether enlil/ed. to preference over fresh application ofa State Transport Unde'. ·taking. Ta1nilnadu 11-fotor . Vehicles Rules 155 A-Assignment of 5 marks to State Transport Undertaking-Whether valid. - Words &:Phrases. ''as if"-Meaning of-Se~tion 58 (2) Motor Vehicles Act 1939.

The petitioner in the Special Leave Petition was the holder of a Stage · carriage permit on an interwState route He held several permits for· operation or"thc s_aid route and as the period prescribed for a few of them harJ n "of the Undertaking and consideration of- the application of the renewal of the permit ~ ' under Sec. 58 excludes importing of the provisions of Sec. 47. This approach overlooks a· specific provision enacted in sub·sec. (2) of Sec. 58 which provides as. und~r : "58 (2) A permit may be renewed on an application ' made and disposed of as if ii were. an application for a 't .. perm1 ... When a statute prescribes that ,an application for renewal of a permit shall be made and disposed of as if it ·were an application for a permit, the legislature incorporated_ by pen and ink all those provisions which are applicable for grant of a permit upon a fresh . I application made in this behalf.. If an application for . renewal of permit was to be.

treated differently than the application for a Permit made under Sec. 45 and processed under Sec. 47 and other connected provisions, it was· absolutely. unnecessary for the legislature to provide that an application for renewal ofa permit shall be made. and disposed Of as if it were an application fo'r a fresh• permit. The expression 'a~ if' is used· to make one applicable in respect of other. Therefore, the expression 'as if' used in Sec. 58 (2) would mean and imply that the application for renewal must be made in the same manner and to same extent an applcation. for a 0 I! ' , fresh permit and ipust be processed as such. This would mean that. even where an existing permit holder applies for a·renewal of his · permit, it has to be advertised· and fresh applicants can as well apply for a permit to ply vehicles on the same route for which the previous holder of permit has applied for renewal of his permit.

After considering all such applications, other conditions being equal, an existing • operater who has applied for renewal will . have prefrence. There· fore, by necessary. interpretation, s~. 47 (1-H) would also come into play whin an application is for renewal of a· permit on an inter·. · State route. There is no conflict between Sec. 47. (l·H) and Sec. 58 (2). It is therefore, not possible to accept the submission that while considering the application for renewal of a permit, Sec. 47 (1-H) is not attra~ted. · SllER s! NOH i>. UNION (IJ111al, J. ) 417 It appears that the State of Rajasthan lmd amended Sec. S8 (2) in its application to ·that State by engrafting a third proviso to sub-sec. (2) of Sec. 58 by Rajastban Act 8 of 1973, which reads as Ji. · under: • •"Provided also. that other conditions being equal, . an· ..

·application for stage carriage permit by a State Tra~s •' port Undertakings, as defined in Section 68-A, whether an application for renewal ·or a new application shall be given prefrence over all other applications for renewal:" # Addition of this proviso merely makes explicit what was implicit in sub-sec. (2) of Sec.. 58. Nothing was pointed out to us to .. hold . c that the Rajasthan· State Legislature lacked competence to add the ' afore-mentioned proviso to sub-sec. (2) of Sec. 58. Re: SL. Ps. Nos. 9678 to 9680/82: . . • In this group of petitions for special leave, it was contended before the High Court that as Pallavan Transport Corporation Ltd. , the ilrst respondent, did not make provision for ni. gbt halt cleaners, the application for permits made by them were liable to be screened'. The High Court declined to examine this contention on the short ground tbat this contention was not raised before the State Transport Appellate Tribunal.

For the ·same reason, we could as well have declined to examine this contention. However, it may· as well be pointed out that even if the contention is to be examined on· merits, there is no substance in it. The State of· Tamil Nadu has. -· framed what are styled as Tamil Nadu Motor Vehicles Rules. Rule 155-A provides for amarking sy~tem under different beads. to 11' rival claimants for permit to . objectively assess V'/hO amongst them is the best to whom permit. shonld be granted. Before proceeding to assign marks under different beads, the Transport Authority has to screen applications so as to 'weed out those unsnitabJe· on one or · the other ground mentioned in the tule. One such disqualification is the failure to provide for night bait cleaners. It was urged ,that . after the Transport Authority made the enquiry from the first . respondent-Corporation whether .

it, has provision for night haft cleaners, without waiting for the clarification, the Transport Authority proceeded to dispose of the application. It was next pointed out that Rule 155-A (3) (d) provides that 5 marks shall be awarded to the applicant falling within the proviso to cl.. (c) of Sec. 62 of the Act which means and implies a . State Transport Undertaking. Tb~ (1984] l s. c. a. ~ievance is that such adboc assignment of marks and failure to ,.. A 'weed out the application on the ground of' disqualification for not ·providing night halt cleaners bas vitiated the decision of the Trans· port Authority. The validity of Rule 155-A and its . various sub- ·clauses came up for consideration of this Court in D. R. Venkacha/atn & Ors. vs. Dy. Transport Commissioner & Ors. (') This Court repelled the challange . especially to the provision for assigning 5 marks to a . ... ·· State Transport .

Undetaking observing as under : "A State enterprise, in a truly Welfare Sfllte, is charged with a social consciousness and reponsibility for its citizens, an attention to serve them and a willingness to embark on public utility ,undertakings· better to fulfil people's demands. ·The public sector' enterprises ar. e expected . to be model employers and model servants planning their budgets, subjecting themselves to public audit and criticism and inquest by legislative committees . . . and the Houses of the legislature. Profits are their co11·· ·D cern but, more importantly, public weal is their commit· ment. Such is the philosophy of the State seCtor in our • socialistic pattern o(society. " On the question of assignment of 5 marks to State Transport Under· E' taking this Court held that 'this is not an arbitrary stroke of favouritism because . there are many promotional factors bearing .

on the interest of the travelling public which a State enterprise qua · State enterprise will, but a private enterprise qua private enterprise will. not, take care of. After al~ private enterprise has its primary ·motivation in profit'. The Court further observed that 'the superi· ority in many respects of State Transport Undertakings, in the legislative judgment, bas led to r. 155-A'. The Court ultimately held that the assignment of marks under r. 155-A is geared to public interest, which is the desideratum of s. 47 (I) of the Act. Once the assignment of 5 marks to State Transport Authority Undertaking is held to be valid, the Transport Authbrity was perfectly justified in ·refusing renewal of permits to· the petitioners in comparison to the State Transport Undertaking. As for failure to explain absence · of night halt cleaners, in the absence of concerte evidence, no infe: rence can be drawn.

This was the only additional contention in this group of petitions and we find no substance·in it. . ~ (I) [1977} 2 S. C. R. 392 • SHER SINGH v. UNION (Desaf. J. ) 479. These are all the contentions in this group of petitions . and as A we find no substance in any of . them, all the petitions ate 1dismissed with no 'order. as to costs. N. V. K. Petitions dismissed. • • . '"t . ..