SHIV CHAND AMOLAK CHAND v. REGIONAL TRANSPORT AUTHORITY & ANR

Citation: [1984] 1 S.C.R. 288

Court: Supreme Court of India

Bench: P.N. BHAGWATI, R.B. MISRA

Case summary

ifranspOrt Authority was challenged by the· appellants in a writ · petition filed . permits may be granted and the second being that "thcrCafer applications for itage carriage permits can be entertained" an~, therefore, it would mean th3t before an application for grant of a...

Judgment text

• SHIV CHAND AMOLAK CHAND . v REGIONAL TRANSPORT AUTHORITY & ANR. October 7, 1983 [P. N.. BHAGWATI ·AND R. B. MISRA JJ. ) Motor Vehicles Act, 1939-Sectfon 47(3) and 57(8) sco;e of- Wh~ther Section 47(3) ofthe Act will be applicable when an application is made by a . holder of a permit for extension ofthe rouie specified in the permit. ' -,... The appell~nts ·held stage carriage permit granted to them by the Regional Transport Auth_ority for the route _Dabra-Karera Via Lodi Mato- . extended\uPto Gwalior. On 22-6-1978, this route for which. the -permit wis . held by the appellants wa:s modifie~ at their own request, by deleting the pOrtion of Jie route from Karer8. to Shivpuri. By a notification d11ted 4-8-1971 certain routes were nationalised Under Scheme No. 11-M which came into effect from 25-9-1978, including deletion of the portion of the route from Shivpuri .

to Satanwara, with the result the permit of the appellants· remained operative· only for the remaining portion ·of the route namely, Satanwara- Gwalior Via ·Dabra. Effective from 19-12-1978, the State Gov('rnment issued another Notification making mOditications in the route schemes. Since this modHication perniitted plying of stage carriages by private operators even on a portion ofa nationalised roi. ite conneCting a district headquarters and not more than 20 KMs in length, the appellants made an- application to the Regi~al Transport Atithority-for restoring the portion of the· route from Shivpuri to Satanwara on the. ground that Shivpuri waS a district headquarter a"nd the portion of the route from ·shivpuri and Satanwara was less than 20 - KMs. The Regional Transport Authority rejeCted the said application on the . grqund that the"Notificatio~ dated 18-12-1978 did not have any retrospectiVc effect and therefore, the appellants . were not entitled to ciu~omatic restoration .

>of the porti9n of the route from Shivpuri to Satanwara. • The appellants thereupon filed an application·in t. he prescribed form for extension of the route specified in their permit from Satanwara to Shivpuri. The said application Was rejected after hearing the objections on two grounds, namely (i) the specific· order of the State Govt. Curtailing the Satanwara- Shivpuri pOrtion of the applicants' Permit, while approving Scheme 11-M cannot be tfeated as having been ainended by the General Amendment to the Scheme and (ii) no extCnsion of the route could be granted without ·following the pr~cedure laid down ! n ~Section 47(3) of the ACt. This order of . the Regional . ifranspOrt Authority was challenged by the· appellants in a writ · petition filed . in the High Court of Madhya Prades~. The ~igh Court rejected the petition holding that by reason of the express language of Sub-Section (8) ofSectioD 57,.

an application for extension of the i'oute specified in an existing permit was tantamount to an . appl~caiion for grant Of a new permit and hCnce SHIV CHAND v. R. T. A. it was subject to the provisions of section 47(3)'and it could not be Considered . without following the procedure prescribed by Section 47(3). Hence the appeal after obtai~iog special leave of the Court. Allowing the appeal, the Court HELD : I. I The application made by the appellants 'for extension ot ' the route specified in• their pc:nnit from Satanwara to Shivpuri could be considered by the Regional Transport Authority without following the procedure prescribed ·under Sub-Section (3) of Section 47. [297 E·H] r (I) Misc. Petn. No. 416 ~f 1968. (2) A. IJl. 1969 SC 1130. " (3) A. I. R. 1970 SC 466, StJPRM COURT REPoilTS . · i1984j 1s. c.!. . . . . ~ extension of the route specified in an existing permit was tantamoun!

to an application for grant of a new permit and hence it was subject to the provisions of section 47 sub-section (3) and it could not be conoidered without following the procedure prescribed by sub-section (3) of section 47. The learned Judge on this view rejected the writ petition of the appellants. The appellants thereupon preferred . the present appeal with. special leave obtained from this Court. • The only question which arises for consideration in this· appeal • is as whether section 47 sub-section (3) is attracted when an application is made by a holder of a permit for extension of the route ·specified in the permit. The determination of this question depends upon a true interpretation of some of the relevant provisions of the Act. Section 2 is the definition section and clause (28A) of this section defines route to mean "a line of travel which specifies the high-way which' may be traversed by a ·motor vehicle between on'e terminus and another".

Chapter IV is the only material chapter for our purpose. and as its beading shows, it deals with contre>I of trans· port vehicles. Section 42 provide& tha{ no owner· of a transport vehicle shall use or permit the use of ihe vehicle in any public place save in accordance with the conditi. ons of a permit granted or ' countersigned by a R;egional or State Transport Authority or the Commission authorising the use of the vehicle in that· place in the manner in which the vehicle is being used. Section 43 confers certain powers on the State Government to issue directions to the State Transport Authority and section 44 provides for the constitution of State Transport Authority and Regional Transport Authorities for each State. Section 45 specifies the authority to which an application for a permit must be made and what particulars an application for permit shall contain is prescribed in section 46.

Section ·47 sub·section (I) lays down what matters shall be taken into account by the Regional Transport Authority in considering an application for • a stage carriage permit and various other provisions regarding reservation of certain percentage of stage carriage permits for Schednled Castes and Scheduled Tribes and persons belonging to economically weaker sections of the community are made in sub• section. (IA) to sub-section (iH) of section ·47. Then ·follows . sub-section (3) of section 47 which is in the following terms: "47 (3). A Regional Transport ~uthority may, having regard to the matters mentioned in sub-section (I) limit the number of stage carriages generally or of:any specified • smv CHAND v. R. T. A. (Bhagwati, J. ) 295 type for which staae carriage permit& may be granted in the region or in any specified area or on any specified route within the region'.

" Section 48 sub section (I) provides that, subject to the provisions of section 47, a Regional Transport Authority" ·rnay, on an appli· cation made to it under sectio'n 46, grant a stage carriage· permit in accordance with the application or with such modifications 'as it deems fit or refose to grant such a permit, provided that no such permission shall be granted in respect of any route or area not specified in the application. Sub-section (3) of section 48 empowers the Regional Transport Authority while granting a stage carriage permit to attach to the permit any one or more of the conditions set ·out in that sub·section. One of the conditions which may be attached to the permit is that set out ·in clause (xxi) and it reads as follows: • "48(xxi) : that the Regional Transport Authority may, after giving notice of not less than one month- (a) vary the conditions of the permit; ... (b) attach to the permit further conditions; l!

l Provided that the conditions specified in pursuance of clause (i) shalJ not be varied· so as to alter the distance covered by the original route by more than 24 kilometres, and any v'ariation within such limits shall be made only after the Regional Transport Authority is satis· • fled that such variation will serve the public convenience and that it is not elr. pedient to grant a separate permit in respect . of the original . route as so varied or any part thereof. " ,. Sections 49 to 51 deal with an applicatioll' for grant of contract I carriage permit while sections 52 and 53 deal 'with an application for grant of private ca'rrier's permit. We are not concerned with · these provisions and hence we need not refer to them. So also we are not concerned with sections 54 to 56 which deal with · application e· ·for11ublic carrier's permit. Section 57 is however an important section and in its various provisions it lays down the procedure in applyinjl for and granting permits.

Sub-section (2) of· sCC! ion 57 [1984j 1 S. C. R. prescribes the time'within which an application for a stage carriage permit should be made and· sub-Sections (3) to (7) lay down the procedure which must be followed by the Regional Transport Authority w_hile dealing with an application for a stage carriage permit made before it. Sub:section (8) of section 57 is ~he material provision which calls for interpretation and it runs as follows : • "-57 (8) : An application. to vary the conditions of any' permit, other than a· temporary permit,. by the inclusion of a new route or routes or a ·new area or, in, the case of a stage carriage permit, by increasing the (number of trips above the specified maximum or by ·c altering the route covered by it) or in the case of ·a contract carriage permit or a public carrier's permit, by increasing the number of vehicles covered by the permit, ' shall be treated as an application for the grant of a new permit. " " . , !

fl The argument of the respondents on these provrstons was, and "this argument found favour with the High Court, that an application for extension of the route specified in. a perljlit is nothing but an application to vary the conditions of the perm it by altering the roule covered by it and it is therefqre required by sub-section (8) of section 57 to be treated as an application for grant of a new permit and hence, by reason of section 48, the grant of such an application for extension must be held to be subject to the provisions of section 47 sub-section (3) and no such extension can be granted without following the procedure prescribed by sub-section (3) of section 47~ The validity of this argument was assailed before us on behalf of the · .. appellants and it was contended that the fulfilment of the condition set out in sub-section (3) of section 47 was not a part.

of the procedure for consideration of an application for extension of the route •pecified in a permit and when sub-section (8) of section ~7 provided . that such an application shall be treated as an . application for _gtant of a new permit, what was sought to be incorporated was merely the procedure set out. in sub-section (3) to (7) of Section 57 and not. pre-condition for consideration _of such an application set out in sub-section (3) of Section (47). This contention, it was submitted on behalf of the appellants, . was supported by. Cla~se (xxi) ot sub- 'H section (3) of Section 48, because if the condition set out in that clause is attached to a permit, tb. e Re&ional Transport Authority can suo inotu extend the roilte specified in the permit upto a distance of SHIV CHAND v. R. T. A. (Bhagwati, /. ) . 29? , It.. 24 k. ms. for serving the public convenience, without being subject to the pfovisions of sub-section .

(3) of Section 47 and if the Regional Transport can do so suo motu without being required to follow the procedure of sub~section (3) of Section 47, there is no. reason why the Regional Transport Authority should not be. entitled to do •o on an application for extension made by the holder of the permit. . These were the rival arguments urged on behalf of the parties and we shall now proceed to consider them. The permit held by the appellant• in the present . case, 'after the deletion of the portion of the route from Shivpuri to Satanwara was operative only for the remaining portion of the route. namely, Satanwara-Gwalior via Dabra and in view of the ·modification made iil Scheme No. 11·M by the notification issued by the State . Govern· ment under section 68F sub-section (2) on 18th December, 1978, tho appellants applied for extension of the route from Satanwara to 'Shivpuri, a distance less than 20 kilometers.

The question it whether this application could be consid~red by the Regional Transport Authority without first determining under section 47 sub-section (3) the number of stage carriages for which permits may be granted for the routo ·shivpuri-Sat;nwara-Gwalior via Dabra, because if the extension applied for were granted, that would be the route for which the permit wo. uld be <>perative. Now, it is clear that it was . a condition of the permit, after the deletion of the portion of the route from Shivpuri to Satanwira, that the appellants shall use their vehicle or vehicles only on the route Satanwara-Gwalior via Dabra. The application of the appellants for ·extension of this route by including .... the portion from Shivputi'to Satanwara was, therefore, in effeQt and au9stance, an application for varying . this con. dition of the permit by extending the route and it clearly fell within the terms of sub-secti9n ~ (8) of section 57.

So far there wai no dispute between the'parties, but at this point the agreement between the parties ended and a contro, verly arose as to what was the consequence and effect of the applica· bility of sub-section (8) of section 57 to this application made by the > ,. appellants. There can be little doubt that under terms of sub-section r-. (8) . of section 57, this application of the appellants was liable to be "treated as an application for the grant of a new permit". But the question is·: for what purpose and which of the provisions of the Act could be said to be attracted to this application by reason of the requirement that it should be treated as an application for the grant a new permit. The argument of the respondents was that no application for grant of a new permit can be entertained by the Regional Trans· , port Authority 11nder section 48, unless the number of stage carriages ...

for which permits may be granted for the particular route is first -41111 determined by the Regional Transport Authority under sub-section · (3) of section 47, and, therefore, the consequence of treating the application of the· appellants for extension of the route as an appli· cation for grant of a new permit was that no extension could be )I granted by the Regional Transport Authority unless the requirement of section 47sub-section (3) ivas first complied with and the number ·' of stage carriages for which permits may be granted on the extended -1 ronte was determined under that provision. But we do not think this argument is well-founded. . It is undoubtedly true that having regard to the several decisions of. this Court and particularly, the decision in Mohd, 1 ll>rahim. v. State Transport Appellate Tribunal, Madras,( ) the law must now. be taken to be well·settled that ·an application for grant .

ofa new permit cannot be enteratained by the Regional Transport Authority under section 48, unless the limit of the number of stage · carriages for which permits may be &ranted is first determined under section 47 sub-section (3).. There are are two independent steps 1 required to be taken in connection with the grant of a permit, the first being the determination by the Regional Transport Autho· · ... -. ,, rity. under section 47 sub-section (3) of the number of stage carriages for which permits may be granted and the second being that "thereafter applications for stage carriage permits can be· enter· tained" and, therefore, it would f mean that befo~e an application for grant of a permit can be entertained by the Regional Transport Authority, there would be a determination under section 47 sub· section (3), Ray, J. , as he then was speaking on behalf of the Court observed in Ibrahim's case (supra) : 'l!

n' our opinion, the provisions of the Act in regard to stage carriage permits have the following consequences. If the Regional Transport Authority were to appoint a ~ date for the receipt of applications for the grant of stage carriage permits, the Regional Transport Authority should fix the limit of the number of permits which . might be granted and then notify the same . under section 57 (2) of the Act. If, on the other hand, applications were sen~ by persons suo motu · for the grant of permit the applications would have to be. published and the represen· Il tations would have to be .. asked for. The proviso of • (1) [i971) l S. C. R. 474. • • . . . SHIV CHAND v. R. T. A. (Bhagwati, J. ) 299 \ section 57 (3) of the Act furnishes the answer that if the A,• grant of any permit in accordance with the application . would have the effect of increasing the number of permits beyond the limit fixed under section 47.

(3) of the Act, the Regional Transport Authority might summarily refuse the application without following the procedure laid down in section 57 of the Act. In other cases, the proper 8 stage for fixing the limit under section 47 (3) of the Act would be after applications are received arid betore the . same would be published under section 57 (3) of the Act asking for representations. If however the Regional Transport Authority would not_increase or modify (the number of permits which already. exist, the grant of an application would mean transgressing the limit fixed, and procedure laid down in section 57 (3) of the Act need not than be · followed. On the other hand, if the. Regional Transport Authority on receipt of applications would decide· upon the limit of permits and ! he grant thereof would be with, in the limit prescribed then the procedure laid. down in section 57 (3) of the Act would be followed.

" There can,· therefore, be no doubt that if an application for varyin& the condition of a permit by extension of the route specified in the permit were equated wholly with an application for grant of a new yermit and th~ permit for the extende~ route we~e to be regarded as a new permit, the procedure prescnbed Ill section 47 sub-section .. (3) would have to be f611owed and . the number of stage carriages for which permits may be granted on the extended route would have to be determined before the application could be entertained by the Regional Transport Authority.

But we do not think that the prescription in sub-sectjon (8) of section 57 that an application· for varying the condition of a permit 15y extension of the· route shall be treated as an application for grant of a new permit has effect of equating such an application with an application for grant of a new permit for all purposes so as to ·attract the applicability of sub-section (3) of section ~J· Section 57 deals with the procedure. iri applying for and granting permits and sub-section (3) to (7) Jay down the procedure which must be followed in co~sidering and deciding, ·inter alia, an application for grant of a stage carriage permit. Sub-section (8) follows upon sub-section (3) to (7) and is part of the same seciton • which has a definite o~ject and scheme of providing the procedure for considering aμd granting an application and:thercforc, when it ~ . . . . ' ' . . • • 300 SUPREME COUkT IUIPORTS [1984] ! s. c. a. provides that an application to vary the conditions of a .

permit by ' . the inclusion of new route or routes or new area or by increasing . the number of trips above the specified 'maximum or by altering the ·route covered by it shall be treated as an application for grant of new· stage carriage permit it is obviously intended to incorporate and make applicable the procedure set out in the preceding sub- · section (3) to (7) to such an application. The context in which subsection (8) occurs and its juxtaposition with sub-section (3) to ·(7) in section 58 clearly indicate that what is sought. to be made applicable to an application referred to in sub-section (8) by treating it as an application for grant of a new permit, is' the procedure set out in sub•section (3) to (7) of section 58 and nothing more. The requirement spelt out in sub-section (3) of section 47 that the number of stage carriages for which permHs may he 'granted on any particular route.

must be first determined before an application for grant of a stage carriage permit can be entertained by the Regional Transport Authority under section 48, is obvi6usly not a part of the procedure for considering an application for grant of a permit; it is a condition precedent before an application for grant of a permit . can be considered and granted. This condition precedent cannot be said to have been incorporated by reference under sub-section (8) of section 57. An application to vary the conditions of a permit as set out is un'doubtedly to be treated as'an application for grant of a new permit, but that is only. for the purpose of applying the procedure set out in sub-section (3) to (7) of that section". It is not an application for a new permit and . if it is granted, the permit for the extended route does not become. a new permi~ in the· hands of the ... applicant. It is the ~amc permit which now, after the granting of tho application, covers the extended route.

It may be possible to say that where a totally new route is sought to be included' by an application to vary the conditions of a permit or the alteration of the route sought by such an application is of such a drastic character that it becomes substantially a new route, the application, though in form an application to vary the conditions of the permit, would in effect and substance, be an application for grant of a new permit and in such a case, a view may conceivably he taken with some degree of plausibility that the number of stage carriages for which permits may be granted on such new route should first be d~termined under section 47 sub-section (3) before the application to vary the conditions of the permit can be entertained. An applicant for a permit on a route which is not merely technically, but in· truth and reality a different route, distinct from the original routegnay not be permitted • to defeat the provision enacted in section 47 sub-section (3) by • SHIV CHAND v. R. T.

A. (Bhagwati, J. ) ,301 ' . . •, .. ·. labelling his application as one for varying the conditions of the permit and in such a case,, the procedure set out in section 47 sub-section (3) ·A· may have to be complied with before the Regional Transport Authority can consider and grant the application. But where an application merely seeks a short extension of the route specified in the permit as in the present case, it would not be appropriate to say that it is an T application for grant cif a new permit, though technically tlie ·extended route may not be regarded as the same as the original route and ·· where such is the case, it would not be necessary 10 comply with the procedure set ,out in sub•section (3)· of Section 47.

We are, therefore, of the view that the High Court was in error in holding that the application made by the appellants for extension of the route specified in their permit from Satanwara to Shivpuri could not M considered by the Regional Transport Authority with· out following the procedure prescribed under sub-section (3) of • Section 47. We accordingly allow the appeal, set aside the· judgment of the High Court as also the order made by the Regional Transport . Authority and remit the case back to the Regional Transport Authority for considering the. application of the appellants in accordanc. e with law in the light of the observations contained in this judgment. There will be no order as t. o cos_ts of the appeal. . S. R. Appeal. a/lowed. • • • • '.