JUDGMENT
Jayachandra Reddy, J.
1. This Writ Appeal came up before the Division Bench consisting of Raghuvir, J. and Upendralal Waghray, J. The question tl.Qt arose for consideration is whether the approved scheme published under Section 68-D of the Motor Vehicles Act, through G.O.Ms. No. 606 Home (Transport-V) dated 19-5-1975. in respect of the route Visakhapatnam-Gurnmalakshmipuram. via Vizianagaram, Gajapathinagaram and Parvathipuram, prohibits the grant of a permit on any other notified route on the ground that it overlaps the approved route. Raghuvir, J. held that the route permit cannot be granted as the scheme excludes all route holders. Waghray, J. on the other hand, held that the approved scheme does not totally prohibit the grant of a permit on the route which overlaps only partially. Because of the difference of opinion the matter has come up before me.
2. The controversy relates to the grant of a stage carriage permit to the writ-petitioner on the route Vizianagaram to Koraput, via Gajapathinagaram. The State Transport Authority issued a notification calling for applications for the grant of one stage carriage permit on the inter State route in pursuance of an inter-State agreement between Andhra Pradesh and Orissa. The A. P. State Road Transport Corporation and two others applied f or the same. The State Transport Authority by its order dated 5-12-1975 granted the permit to the writ-petitioner D. Ch. Satyanarayana Raju, in preference to the A. P. State Road Transport Corporation (hereinafter referred to as “the Corporation” and others. Two appeals were preferred against the said order, to the State Transport Appellate Tribunal i.e., T.A. No. 44/1976 by the Corporation and T.A. No. 13/1976 by another applicant. The State Transport Appellate Tribunal by its order dated 12-1-1979 dismissed the appeals preferred by the Corporation as well as the other applicant. But at the same time, the Tribunal held that the very grant of a permit on the said route is illegal in view of the provisions of Section 68-FF of the Motor Vehicles Act. Aggrieved by the Judgment of the Tribunal, the original grantee D. Ch. Satyanarayana Raju, preferred the writ petition. The Corporation got itself impleaded as a party-respondent.
3. It was contended before the learned single Judge that the State Transport Appellate Tribunal erred in holding that the approved scheme notified under G.O.Ms. No. 606 prohibits the grant of a permit on the route in question as the said route does not completely overlap the approved route under the scheme, and therefore, Section 68-FF is not attracted and that the order of the State Transport Appellate Tribunal should be quashed. The learned single.Judge accepted the contention and held that the scheme did not intend to exclude operators holding permits on a route partially overlapping the route notified under the scheme and that therefore the grant of a permit of the route Vizianagaram to Koraput cannot be said to be prohibited either by the scheme or by Secti6n 68-FF of the Act and accordingly allowed the writ petition. Against the said order, the Corporation preferred the present writ appeal.
4. To resolve the controversy it is necessary to refer to the relevant provisions of law and the contents of the scheme. Section 68-FF of the Motor Vehicles Act (hereinafter referred to as ‘the Act”) is in the following terms:
“68-FF. Restriction on grant of permits in respect of a notified area or notified route : Where a scheme has been published under sub-section (3) of Section 68-D in respect of a notified area or, notified route the State transport Authority, The Regional Transport Authority as the case may be shall not grant any permit except in accordance with the ‘provisions of the scheme.
….. ….. …..
For the purpose of this case the rest of the Section need not be quoted. This section lays down that once the scheme is published under ,Section 68,D,.,in respect of any route, the State Transport Authority or the Regional Transport Authority as the case may be, shall not grant any permit except in accordance with provisions of the scheme. Therefore, it is a matter of construing the scheme and its itendment. If the scheme excludes all the operators including those plying on a portion of the notified route, then it is obvious that no new permit can be granted on a route which even partially overlaps the notified route. It therefore, now becomes necessary D examine the scheme to find out the extent of exclusion under the scheme. The relevant iapragraph-4 of the approved scheme reads. as follows :
(For table see next page)
The language in Col. 2 of paragraph 4 is in two parts. Under the first part all the persons holding stage carriage permits on the proposed route under the scheme are excluded Completely. The second part excludes other persons holding stage carriage permits on the route completely overlapping the proposed route except to the extent specified n the note. For our purpose Note (3) is important and the same says that the existing ,folders of stage carriage permits in respect of such route or routes, which partially overlap the proposed route are not affected by the approved scheme. It can, therefore, be seen that the scheme does not provide for total exclusion of all operators plying on any route which overlaps the notified route under the scheme, only partially. In Mysore State Road Transport Corpn. v. Mysore State Transport Appellate Tribunal it was held thus :
“It is, therefore, apparent that where a private transport owner makes an application to operate on a route, which overlaps even a portion of the notified route, i.e., where the part of the highway to be used by the private transport owner traverses on a line on the some highway on the notified route, then that application has to be considered only in the light of the scheme as notified. If any conditions are placed then those conditions have to be fulfilled and if there is a total prohibition then the application must be rejected ………….”
In M/s. Adarsh Travels Bus Service v. State of U. P., their Lordships of the Supreme Court considered the scope of the provisions of Section 68-FF of the Act
“4. Maximum and minimum number of vehicles proposed to be operated on each route by the State Transport Undertaking to the exclusion, complete or partial, or otherwise of other persons.
The following number of buses are proposed to be operated to the complete exclusion of all other persons holding stage carriage permits on the proposed route and such other persons holding stage carriage permits on the routes overlapping completely on the pro- posed route, except to the extent specified in the note hereunder.
(a) Maximum number 4
(b) Minimum number 1
(c) Type Saloon (d) Capacity 44-60 seating capacity Note: This scheme shall not affect: 1) The other State Transport Undertakings; 2) The holders of stage carriage permits in respect of town service routes; 3) The existing holders of stage carriage permits in respect of such route or routes, which partially overlap the proposed route." and approved the principles laid down in the Mysore State Road Transport Corporation's case (supra) and held :
“A careful and diligent perusal of 5. 68-C, S. 68-D(3) and and S. 68-FF in the light of the definition of the expression ‘route’ in S. 2(28A) appears to make it manifestly clear that once A scheme is published under S. 68Dinrelation to any area or route or portion thereof, whether to thee 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.”
Their Lordships in paragraph 16 also observed as follows : –
“We are, therefore, unable to see any merit in any of the Civil Appeals since none of the schemes placed before us contain any saying clause in favour of operators plying or wanting to ply stage carriages on common sectors. On the other hand we found that invariably there is a clause to the following effect: “No person other than the State Government Undertaking will be permitted to provide road transport services on the routes specified in paragraph 2 or any part thereof in the face of a provision of this nature in the scheme totally prohibiting private operator from plying stage carriages on a whole or part of the notified routes, it is futile to contend that any of the appellants can claim to ply their vehicles on the notified routes or part of the notified routes.’
(Emphasis applied)
These observations make it clear that where the scheme totally prohibits private operators from plying stage carriage on the whole or part of the notified routes, then no operator can claim to ply his vehicle on the route notified under the scheme. Their Lordships do not lay down that no private operator can ply a stage carriage even on a part of the notified route when there is no such total prohibition under the scheme. Where the scheme does not intend to exclude operators holding permit on a route partially overlapping the route notified under the scheme, the grant of a permit on such a route cannot be said to b,e prohibited either by the scheme or by section 68-FF of the Act.
5. In this context it is useful to refer to the language of Section 68-C which reads thus : –
“68-C. Preparation and publication of scheme of Road Transport Service of a State Transport undertaking . Where any State Transport undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly co- ordinated road transport service, it is necessary in the public interest that road transport services in general or any particular, class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking, whether to the exclusion, complete or partial of other persons or otherwise, the State transport undertaking may prepare a scheme giving particulars of the nature of the service proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct.
The section makes it clear that the exclusion under the scheme can be complete or partial. It is only in respect of those notified routes where there is a total exclusion under t scheme no private operator can be granted a permit.
6. I shall now refer to some of the unreported judgments of our High Court, which throw some light on the point under controversy. In Writ Appeals Nos. 703 and 717 of 1977 a Division Bench consisting of Raghuvir, J. and Ramaswamy, J. considered the scope of the scheme in G. 0. Ms. 605 where there is no total prohibition, but- yet held that in the face of this exclusion under the scheme the permits in future cannot be granted to non-existing permit holders. The Division Bench also referred to the judgment of the Supreme Court in Mysore State Road Transport Corpn. v. Mysore State Transport Appellate Tribunal, supra and yet overruled the judgment of a single Judge in B. Ganapathi Rao v. Regional Transport Authority, Srikakulam (1981) 1 Andh WR 228. In B. Ganapathi Rao’s case (1981) 1 Andh WR 228 the scope of the scheme in the very G. O. M. S. No. 605 in a different case was considered and it was held that temporary permits can be granted as there was no total prohibition. The order of the Division Bench in Writ Appeals Nos. 703and 717 of 1977 does not contain any other reasons and has not referred to any other decisions. That apart, the Supreme Court in Adarsh Travels’ case, supra has referred to the decision in Mysore State Road Transport Corporation’s case, supra and has clearly observed that where scheme totally prohibits private operators from plying stage carriage on the whole or partof the notified route, no operator can ply the vehicle on the notified route or part of the route. Their Lordships have not indicated anywhere in the judgment in Adarsh Travels’ case cited, t hat the private operators cannot be permitted to ply on the notified route even though there is no total exclusion. Their Lordships further observed:
“when preparing and publishing the scheme under S. 60C and approving or modifying the scheme under S. 60D care must be taken to protect, as far as possible, the interest of the travelling public who could in the past travel from one point to another without having to change from one service to another en route. This can always be done by appropriate
clauses exempting operators already having permits over common section from the scheme and by incorporating appropriate conditional clauses in the scheme to Reliable them to ply their vehicles over common sectors without picking up or setting down passengers on the common sector. If such a course is not feasible the State Legislature may intervene and provide some other alternative as was done by the Uttar Pradesh Legislature by enactment of the Uttar Pradesh Act No. 27 of 76 by 5. 5 of which the competent authority could authorise the holder of a permit of a stage carriage to ply his stage carriage on a portion of a notified route subject to terms and conditions including payment of licence fee. There may be other methods of not inconveniencing through passengers but that is entirely a matter for ‘ the State Legislature, the State Government and the State Transport Undertaking. But we do wish to emphasise that good and sufficient care must be taken to see, that the travelling public is not be needlessly inconvenienced.”
Therefore, when the interests of the travelling public is paramount and when there is no total exclusion under the scheme, it cannot be said that no operator can be permitted to ply even on part of a route, particularly when the contents of the scheme show that operators plying their vehicles on the route partially overlapping the notified route, are not excluded. To the same effect is the view taken by another learned single Judge in Writ Petn. No. 4475 of 1979 dated : 22-10-1979. In Writ Petn. No. 2705 of 1981 by an order dated . 17-6-1981 I have also taken the same view. I have also perused several approved schemes in G.O. Ms. Nos. 605,606 (with which we are now concerned) 610, 612, 616, etc., Under some schemes the exclusion is total amid in certain other schemes, the operators plying their stage carriages on routes which only partially overlap, are not excluded and it is an admitted fact that on such routes the permits are also being granted to operators to ply their vehicles in respect of the routes which only partially overlap the route notified under the scheme.
7. For all these reasons, I agree with Upendralal Waghray, J. that the approved scheme under G.O. MS. No. 606 does not amount to a total prohibition for the grant of permit on the route Vizianagaram to Koraput, Via Gajapathinagaram, which overlaps partially the route Visakhapatnam to Gummalakshmipuram, notified under the scheme.
Order (26-6-87).
“Agreeing with the Majority view, the Writ Appeal is dismissed. No costs.
8. Appeal dismissed.