PETITIONER: D. M. THIPPESWAMY Vs. RESPONDENT: THE MYSORE APPELLATE TRIBUNAL AND ORS. DATE OF JUDGMENT04/05/1972 BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. GROVER, A.N. MITTER, G.K. CITATION: 1972 AIR 1674 1973 SCR (1) 562 CITATOR INFO : RF 1973 SC 534 (4,5,6) ACT: Motor Vehicles Act, 1939-Ss. 63(1), 68(c) and 68(F)-An existing permit holder'-meaning of-Who can cancel an existing permit of a Transport operator under s. 68F(2) of the Act. HEADNOTE: The appellant, a transport operator, obtained a permit from the Regional Transport Authority for an inter-State route from Mysore State to Andhra Pradesh. Even before this permit was issued to him, the State of Mysore had notified a draft scheme under s. 68(c) of the Motor Vehicles Act, 1939, providing for the operation of the trunk routes by the State Transport undertaking in the Bellary District. M.S. R.T.C., a State Transport Undertaking and others objected to the issue of the permit to the appellant but the E.T.A. in Mysore State over. ruled their objections. Aggrieved by the said order, M.S.R.T.C. & other rival claimants appealed before the Mysore State Transport Appellate Tribunal. Meanwhile, the Government issued a notification u/s 68(3) ,of the Act approving the draft scheme issued by it earlier. One of the clauses of the scheme known as Bellary scheme, provided that the State Transport Undertaking will operate services on all routes except to the portions of the inter-district routes lying outside the Bellary district. The existing permit holders were allowed to continue their operations in inter-State routes subject to the condition that their permits shall be rendered ineffective by the competent authority for the over-lapping portion in the district of Bellary. Thereafter, the M.S.R.T.C. applied for permits u/s 68 F for the routes mentioned under the Bellary scheme. Till then the appellant had not obtained the counter signature of the concerned R.T.A. in Andhra Pradesh as required u/s 63(1) of the Act. The appeal filed by M.S.R.T.C. was dismissed by the Mysore State Transport Appellate Authority and M.S.R.T.C. went up in appeal before Mysore Revenue Appellate Tribunal. During the pendency of that appeal, the appellant obtained counter- signatures of the concerned R.T.A. in Andhra Pradesh for his inter-State permit. The permit issued to the appellant was renewed by the R.T.A. in Mysore State and duly countersigned by the concerned R.T.A. Andhra Pradesh. In 1970, the Mysore Revenue Appellate Tribunal allowed the appeal filed by the M.S.R.T.C. and set aside the grant in favour of the appellant on the ground that the appellant was not an existing permit holder and, therefore, not entitled to operate in the route in question. Appellant challenged that decision before the High Court by filing a writ but it was dismissed. On appeal by special leave to this Court it was contended on behalf of the appellant that since the appellant's permit had been countersigned by the concerned R.T.A. in Andhra Pradesh before the permit _granted to M.S.R.T.C., the appellant must be considered as an existing permit holder as contemplated by the scheme. Secondly, under the 'Bellary Scheme', there was only a partial exclusion and not total exclusion. Therefore all that the R.T.A. could have done under s. 68F(2) was to make his permit from Bellary Town to Bellary border ineffective- and not to cancel his permit alto-ether and lastly, Mysore Revenue Appellate Tribunal could not have cancelled his permit. Only R.T.A. could do so under s. 68F(2). 563 Dismissing the appeal, HELD: (i) The appellant was not an existing permit holder at any rate on July 28, 1964 when the M.S.R.T.C. applied for a permit for the route in question. In Abdul Gafoor v. State of Mysore, [1962] 1 S.C.R. 909 it was observed by this Court that when a scheme prepared and published under s. 68-C has been approved and the application has been made in the proper manner, nothing more remains to be decided by the Regional Transport Authority and it has no option to refuse the grant of the permit. Further, the date on which the transport undertaking applies u/s. 68F(1) for the permit, that must be date with reference to which the expression "existing permit holder" must be interpreted. [567 H] T. N. Raghunatha Reddy v. Mysore State Transport Authority, [1970] 3 S.C.R. 780 referred to. (ii) Under the Bellary scheme, the only persons whose permits are saved are those existing permit holders on the inter-State routes and not all existing Permit holders. Be- fore the permit holders can be considered as existing permit holders of the concerned inter-State, they must not only have obtained a permit from the concerned R.T.A., in their home State, they must have also obtained the counter- signature of the concerned States. Until they obtained countersignature of these, they cannot be considered as existing permit holders of the concerned inter-State routes. [568 G] C.A. Nos. 1415-1443 of 1969 decided on October 17, 1967, referred to. (iii) It is true that the Mysore Revenue Appellate Tribunal could not have cancelled the permit of the appellant. Cancellation of the permit under s. 68F(2) of the Act, can only be done by the concerned R.T.A. but the R.T.A. in the present case, did not take action under s. 68F(2) initially because of the pendency of the appeals before the appellate authorities and because of the stay orders issued by the High Court and this Court. However, the functions of the R.T.A. under s. 68F are merely ministerial and on this technical ground alone, the appellant cannot succeed. [569 E] Satndard Motor Union Pvt. Ltd. v. State of Kerala and Ors., [1969] 1 S.C.R. 464, discussed and distinguished. JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1167 of
1971.
Appeal by special leave from the judgment and order dated
August 10, 1971 of the Mysore High Court in Writ Petition
No. 3244 of 1970.
C. K. Daphtary, A. K. Sen, S. S. Javali and B. P. Singh,
for the appellant.
Niren De, Attorney-General for India, Shyamla Pappu and J.
Ramamurthi for respondent No. 4.
The Judgment of the Court was delivered by
Hegde, J.-The appellant is a transport operator. He applied
for and obtained a permit from the R.T.A., Chitradurga for
the inter-state route from Chitradurga in Mysore State to
Srisaila in
564
Andhra Pradesh, on January 18, 1964. Even before this
permit was issued to him, the Government of Mysore had
notified a draft scheme under s. 68(C) of the Motor Vehicles
Act, 1939 (to be hereinafter referred to as the Act)
providing for the operation of the trunk routes by the State
Transport Undertaking in the Bellary District. M.S.R.T.C.,
a State Transport Undertaking and other rival claimants
objected to the issue of the permit in question to the
appellant but their objections were over-ruled by the
R.T.A., Chitradurga. Aggrieved by that order M.S.R.T.C. and
other rival claimants took up the matter in appeal to the
Mysore State Transport Appellate Tribunal. Meanwhile on
April 18, 1964, the Government issued a notification under
s. 68D(3) of the Act approving the draft scheme earlier
issued by it. That scheme is known as “Bellary scheme”.
One of the clauses in the scheme provides
“The State Transport Undertaking will operate services on
all the routes to the complete exclusion of their persons
except in regard to the portions of the interdistrict routes
lying outside the Bellary District. The existing permit
holders on inter-state routes, may continue to operate such
inter-state routes subject to the condition that their
permits shall be rendered ineffective by the competent
authority for the over-lapping portion in the District of
Bellary.”
This scheme was published in the official gazette on May 7,
1964. Thereafter M.S.R.T.C. applied for permits under s.
68F on July 28, 1964 for the routes nationalised under the
“Bellary scheme”. Till then the appellant had not obtained
the countersignature of the concerned R.T.A. in Andhra
Pradesh as required by s. 63(1) of the Act for the inter-
state permit issued to him. The appeal filed by M.S.R.T.C.
was dismissed by the Mysore State Transport Appellate
Tribunal on November 2, 1964. As against that order
M.S.R.T.C. went up in appeal to the Mysore Revenue Appellate
Tribunal on December 9, 1964. During the pendency of that
appeal, the appellant obtained counter-signatures of the
concerned R.T.A. in Andhra Pradesh on June 23, 1965 for his
interstate permit. In June, 1967, the R.T.A. Chitradurga
renewed the permit granted to the appellant on January 18,
1964. That renewed permit, was duly countersigned by the
concerned R.T.A. in Andhra Pradesh. On July 30, 1970, the
Mysore Revenue Appellate Tribunal allowed the appeal filed
by the M.S.R.T.C. and set aside the grant in favour of the
appellant on the ground that the appellant not being an
“existing permit holder” as contemplated by the scheme is
not entitled to operate in the route in question. The
appellant challenged that decision before the Mysore High
Court by means of a writ petition under
565
Art. 226 of the Constitution. That petition was dismissed
by the Mysore High Court on August 10, 1971. Thereafter
this appeal was brought after obtaining special leave from
this Court.
Mr. A. K. Sen, appearing for the appellant challenged the
correctness of the decision of the High Court on various
grounds. He contended that the “Bellary scheme” was
implemented only on July 1, 1965 when the permit asked for
by the M.S.R.T.C. was granted. But before that permit had
been granted, the appellant’s permit has been counter-signed
by the concerned R.T.A. in Andhra Pradesh. Hence he must be
held to be an “existing permit holder on inter-state route”
as contemplated in the clause quoted above. According to
him a scheme notified under s. 68D(3) of the Act cannot be
considered to have become effective until the R.T.A. passes
appropriate orders under s. 68F(2). His next contention was
that under the “Bellary scheme”, there was only a partial
exclusion and not total exclusion. Therefore all that the
R.T.A. could have done under Border ineffective and not to
cancel his permit. His last contention was that in any
event, the Mysore Revenue Appellate Tribunal could not have
cancelled his permit. Let us now examine the correctness of
these contentions.
Section 68(C) provides
“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 transpoort undertaking may
prepare a scheme giving particulars of the nature of the
services 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 next relevant section for our present purpose is s.
68D(2) which says :
“The State Government may, after considering the objections
and after giving an opportunity to the objector or his
representatives and the representatives of the
566
State transport undertaking to be heard in the matter, if
they so desire, approve or modify the scheme.”
Sub-s. (3) of s. 68(D) provides:
“The scheme as approved or modified under subsection (2)
shall then be published in the Official Gazette by the State
Government and the same shall thereupon become final and
shall be called the approved scheme and the area or route to
which it relates shall be called the notified area or
notified route.
Provided that no such scheme which relates to any inter-
state route shall be deemed to be an approved scheme unless
it has been published in the Official Gazette with the
previous approval of the Central Government.”
Herein we are not concerned with a scheme which relates to
any inter-state route. Section 68F requires the concerned
R.T.A. to issue stage carriage permits to the State
Transport Undertaking in pursuance of an approved scheme if
that undertaking applies for the same, notwithstanding
anything contrary contained in Chapter IV of the Act. Sub-
s. (2) of s. 68F(2) as it stood at the relevant time
provided :
“For the purpose of giving effect to the approved scheme in
respect of a notified area or notified route, the Regional
Transport Authority may, by order-
(a) refuse to entertain any application for the renewal of
any other permit;
(b) cancel any existing permit;
(c) modify the terms of any existing permit so as to
(i) render the permit ineffective beyond a specified date;
(ii) reduce the number of vehicles authorised to be used
under the permit;
(iii) curtail the area or route covered by the permit in
so far as such permit relates to the notified area or
notified route.”
The power of the R.T.A. under s. 68F(2) is merely minis-
terial. He has only to carry out the directions contained
in the scheme. As observed by this Court in Abdul Gafoor v.
State of Mysore(1), that when a scheme prepared and
published under s. 68(C) has been approved and an
application has been made in pursuance of the scheme and in
the proper manner as specified
(1) [1962] 1 S.C.R. 909
567
in Chapter IV of the Act, nothing more remains to be decided
by the R.T.A. It has no option to refuse the grant of the
permit. In that decision this Court further laid down that
when deciding what action to take under s. 68F(2), the
authority is tied down by the terms and conditions of the
approved scheme and its duty is merely to do what is
necessary to give effect to the provisions of the
scheme.
In T. N. Raghunatha Reddy v. Mysore State Transport
Authority(1) it was urged on behalf of the appellant-
operator that the expression “existing permit holder” in
cl. (d) of that scheme should be interpreted as if the
scheme is ready on the date when orders made under s. 68F
came into effect. Rejecting that contention this Court
observed
“It seems to us that this is not a correct way of
interpreting the scheme. The scheme as approved, was
published in the Government Gazette under s. 68D(3) on
January 25, 1968 and on March 1, 1968, the Mysore undertaking
applied under s. 68F(1) to operate buses from January
1968 or a later date. As held by this Court in Abdul
Gafoor v. State of Mysore “when a scheme prepared and
published under s. 68-C has been approved and an
application has been made in pursuance of the
scheme and in the proper manner as specified
in Ch. IV, nothing more remains to be decided
by the Regional Transport Authority and it has
no option to refuse the grant of the permit”
and “when taking action under s. 68-F(1)
the Regional Transport Authority does not
exercise any quasi-judicial function and acts
wholly in a ministerial capacity”. It seems to
us that even if the date of publication may
not be the appropriate date-we do not decide
that it is not an appropriate date-at least
the date on which the trans-
port undertaking applies under s. 68F(1) for a permit must
be the date with reference to which the
expression” existing permit holder”-must be
interpreted. If this is the crucial date, then
it is quite clear that the appellant was not
an existing permit holder because he did not
obtain his counter-signature till July, 1968″.
Applying the ratio of that decision to the facts of the
present case, it is clear that the appellant was not an
“existing permit holder” at any rate on July 28, 1964 when
the M.S.R.T.C. applied for a permit for the route in
question. In this view it is not necessary for us to go
into the question whether the scheme can be said to
have been implemented on May 7, 1964 when the same
was published in the Gazette after the approval of the
Government under s. 68D(3).
(1) [1970] 3 S.C.R. 780.
568
It was next contended that in view of the fact that the
permit had been issued to the appellant on January 18, 1964,
we must hold that when on July 28, 1964, M.S.R.T.C. applied
for a permit on the route, the appellant was an “existing
permit holder”. We see no merit in this contention. Under
the scheme the only persons whose permits are saved are
those “existing permit holders on the inter-state routes”
and not all “existing permit holders”. A contention similar
to the one urged before us was considered and rejected by
this Court in Civil Appeals Nos. 1415-1443 of 1969 decided
on October 17, 1969. Rejecting the appellant’s contention
therein this Court observed :
“Mr. Chagla’s contention is that in view of s. 63 (1 ) the
appellants must be considered as existing permit holders as
the permits given to them continue to be valid. It is true
that in view of s. 6 3 (1) on the basis of the
permits given to the appellants for inter-
state routes, they were entitled to operate in
the routes concerned from the starting
terminus till the route reaches the borders of
the Mysore State. In other words the inter-
state permit given to them operated as intra
state permits for a portion of the route to
which they were granted till those permits are
countersigned by the concerned State or
States. But that fact does not make the
holders of those permits as “existing permit
holders on the interstate routes”. Before
they can be considered as existing permit
holders of the concerned inter-state, they
must not only have obtained a permit from the
concerned R.T.O. in their home State, they
must have also obtained the counter-signature
of the concerned States. Until they obtained
counter-signatures of these, they cannot be
considered as existing permit holders of the
concerned inter-state state routes.”
The question whether the “Bellery Scheme” provides for the
total exclusion of all operators on the nationalised routes
or it merely provides for partial exclusion is, in our
opinion, wholly irrelevant. All that we have to see is what
the scheme says ? Whom does it exclude? It is quite plain
from the language of the clause referred to earlier that
all operators excepting those mentioned therein are excluded
from the nationalised routes. To the general exclusion made
therein, there are two exceptions. The first one relates to
inter-district operators and the second to existing permit
holders on inter-state routes. The appellant does not claim
to come under the first exception. For the reasons already
mentioned his case is not covered by the second exception.
We are unable to agree with Mr. A. K. Sen, Counsel for the
appellant that the decision of this Court in Standard Motor
Union Pvt. Ltd.
569
v. State of Kerala and ors. (1) is of any assistance to
the appellant. In that case this Court was called upon to
consider a scheme framed under the Act read with rule 3 of
the Kerala Motor Vehicles (State Transport) Rules, 1960.
The rule in question divided the scheme broadly into two
categories (1) complete exclusion schemes and (2) partial
exclusion schemes. The question for decision in that case
was whether the scheme before this Court was a complete
exclusion scheme or a partial exclusion scheme. That
question has no relevance for our present purpose. As
mentioned earlier all that we have to see is whether the
appellant can be considered as an operator holding an
existing permit on interstate route at the relevant time.
For the reasons already mentioned we do not think that he
was one such.
Mr. Sen is right in his contention that the modification or
cancellation of the permit granted, for the purpose of
giving effect to an approved scheme must be effected by the
concerned R.T.A. It is true that in this case the R.T’.A.
was not approached to cancel the permit granted to the
appellant. But even after the M.S.R.T.C. applied for a
permit for the route in question, R.T.A. renewed the permit
granted to the appellant. It was impermissible for it to do
so. The appellant is right in his contention that the
validity of the renewal was not before the Mysore Revenue
Appellate Tribunal. The appeal that was before that
Tribunal was one challenging the original grant. Hence
technically Mr. Sen is right in his contention that the
Tribunal could not have done what the R.T.A. was required to
do. But as mentioned earlier the functions of the R.T.A.
under s. 68F are merely ministerial. It was bound to carry
out the directions given in the scheme. But the R.T.A.
evidently did not take action under s. 68F(2), initially
because of the pendency of the appeals before the appellate
authorities and thereafter he could not take action because
of the stay order issued by the High Court during the
pendency of the writ petition and by this Court after the
appeal was filed. We see no purpose in allowing this appeal
on a purely technical ground as that course cannot give any
relief to the appellant. The R.T.A. is bound to cancel his
pen-nit in pursuance of the scheme.
For the reasons mentioned above this appeal fails and the
same is dismissed. But in the circumstances of this case we
make no order as to costs.
Appeal dismissed
(1) [1969] 1 S.C.R. 464.
2-L1 52SupCI/73
570