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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No._4555___________2009
(@ S.L.P. (C) NO. 29966 of 2008)
U.P. State Road Transport Corp. ...Appellant
Vs.
Mohd. Ghilman Sharif & Others ...
Respondents
WITH
CIVIL APPEAL Nos._4556-4557______ OF 2009
(@ S.L.P.(C)Nos.520 of 2009 and 783 of 2009)
J U D G M E N T
ALTAMAS KABIR,J.
1. Leave granted.
2. This appeal has been filed against the
judgment and order dated 14.11.2008 passed by
the Allahabad High Court in Civil Misc. W.P.
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No.47949 of 2008 filed by the Respondent Nos.
1 and 2 herein, inter alia, for the issuance
of a Writ in the nature Mandamus upon the
Transport Department of the State of U.P. and
its authorities to allow the writ
petitioners/Respondent Nos.1 and 2 herein, to
ply their vehicles against subsisting permits
on the route between Muzaffarnagar-Rohana-
Deoband-Nagal-Saharanpur and allied routes.
By the said order, the High Court disposed of
the writ petition with a direction to the
State Transport Authority to decide as to
whether the permit of the Respondent No.1 was
subsisting and if the same was found to be
subsisting the respondents would not be
prevented from plying their vehicles on the
route in question. The matter was to be
decided by a speaking order.
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3. The facts in brief indicate that the
Respondent No.1 Mohd. Gilman Sharif and Mohd.
Ruman Sharif, claimed to be joint permit
holders in respect of the aforesaid route. The
second petitioner, Vinod Kumar, claims to have
had a permit in respect of the said route
which had expired and his application for
renewal of the same is said to be pending.
4. On 13.2.1986 a Scheme was proposed to notify
38 routes under Section 68-C of the Motor
Vehicles Act, 1939(hereinafter referred to as
`the 1939 Act’), which would have the effect
of totally excluding all private operators
from the said routes. While Clause (h) of
Section 68-C provides for cancellation of
permits granted to private operators upon such
Notification, Clause (j) provides for grant of
compensation if no alternative route could be
given to the permit holders. Various
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objections were filed by the existing
operators to the said proposal and in the mean
time on 1.7.1989 the Motor Vehicles Act, 1988
(hereinafter referred to as `the 1988 Act’)
came into force and the proposed Scheme
continued for consideration under the
provisions of the 1988 Act. The objections
were considered by the Hearing Authority which
held that the Scheme had lapsed under Section
100(4) of the 1988 Act. The order of the
Hearing Authority was confirmed by the High
Court on 16.3.1990. The said view of the High
Court was reversed by this Court in Ramkrishna
Verma vs. State of U.P. [(1992) 2 SCC 620]
upon the finding that the Scheme had not
lapsed and that the same was required to be
finalized.
5. On 29.5.1993 a Notification was published
under Section 100(3) of the 1988 Act
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finalizing the Scheme of nationalization with
exclusive right of operation to the appellant
Corporation and total exclusion of private
operators. The said Notification was again
challenged in several writ petitions which
were dismissed by the High Court on
19.11.1999. The various Special Leave
Petitions which were filed against such
dismissal order were allowed by this Court on
1.5.2001 and the matter was remanded to the
Hearing Authority to consider the objections
which had been filed by the private operators
and which were under consideration when the
impugned Notification dated 29.5.1993 had been
issued. The Hearing Authority by its order
dated 2.11.2001 allowed the existing
operators, such as the Respondent Nos. 1 and
2, to ply on the routes in question along with
the Corporation.
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6. The order was again questioned by the
Corporation by filing Writ Petition No.9332 of
2002 in the High Court and the same was
dismissed on 23.7.2002 with the High Court
holding that the Scheme had lapsed. The said
order of the High Court was also challenged
before this Court by the appellant Corporation
as well as the private operators. Such
challenge was upheld on 29.11.2004 and the
matters were remanded to the High Court for
re-hearing of Writ Petition No.9332 of 2002
filed by the appellant Corporation.
7. While Writ Petition No. 9332 of 2002 was still
to be heard, the applications for renewal of
the permits of the private operators came up
for consideration before the State Transport
Authority which by its order dated 9.6.2005
declined to renew the permits on account of
the pendency of the said Writ Petition before
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the High Court. Against such refusal,
revision petitions were filed before the State
Transport Appellate Tribunal which directed
the permits to be renewed subject to the fate
of Writ Petition 9332 of 2002. Consequently,
on 20.1.2006 the permits were renewed subject
to the said condition.
8. On 1.6.2007 the High Court allowed the Writ
Petition and set aside the orders passed by
the Hearing Authority holding that permit
holders who were granted permits prior to 1986
were entitled to get compensation according
to the provisions of the Motor Vehicles Act,
1988. The Special Leave Petitions filed
against the said order were dismissed by this
Court on 16.7.2007.
9. While the Special Leave Petition against the
order of the High Court dated 1.6.2007
allowing Writ Petition No.9332 of 2002 was
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pending hearing, the State Transport Authority
on 26.6.2007 prevented the private operators
from operating on the routes in question.
After the Special Leave Petition was dismissed
on 16.7.2007 the Government took a decision on
9.8.2007 to allow private operators to operate
on the routes in question along with the
appellant Corporation. On 28.3.2008 the State
Government issued a final Notification
allowing private operators to operate on the
notified route in question along with the
appellant-Corporation. The said Notification
dated 28.3.2008 was challenged by the U.P.
Roadways Karamchari Union in W.P. No.398 of
2008 and the Lucknow Bench of the Allahabad
High Court by its order dated 7.5.2008,
restrained the authority from issuing permits
on the notified routes. The private
respondents also filed W.P. No.47949 of 2008
in the High Court for a direction upon the
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respondent Authority to allow them to ply on
the routes in question on the strength of the
permits held by them as no action had been
taken either under the Scheme or in terms of
Section 103 of the 1988 Act or even under
Sections 104 and 105 thereof. The said Writ
Petition No.47949 of 2008 was allowed by the
High Court on 14.11.2008 and the State
Transport Authority was directed to consider
the applications filed by the respondents in
the light of the Notification dated 28.3.2008
by which private operators had been permitted
to operate on the routes in question along
with the appellant-Corporation.
10. It is against the said order of remand that
the present appeal has been filed by the U.P.
State Road Transport Corporation.
11. Mr. Dushyant Dave, learned senior counsel
appearing for the appellant-Corporation, while
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narrating the above-mentioned facts confined
his submissions to the issue regarding renewal
of the permits upon the orders of the State
Transport Appellate Tribunal, subject to the
decision in Writ Petition No.9332 of 2002. The
said Writ Petition was, in fact, disposed of
by the Allahabad High Court on 1.6.2007 in
favour of the appellant Corporation upon
negating the stand that the Corporation was
not in a position to cater to the needs of the
travelling public on account of suffering huge
losses and insufficient number of buses which
disabled them from providing sufficient,
adequate, economical and properly coordinated
transport service to the travelling public.
Mr. Dave pointed out that the order of the
Hearing Authority in so far as it modified the
approved Scheme dated 29.5.1993, could not be
sustained, and was set aside by the High
Court. Mr. Dave also pointed out that while
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disposing of the said writ petition the High
Court had categorically held that permit
holders who had been granted permit before
13.2.1986 i.e., before the date of publication
of the Scheme, whose permits were going to be
affected by the approved Scheme on 29.5.1993,
were only entitled to compensation in terms of
the provisions of the Act.
12. Mr. Dave submitted that after such decision
there was no scope for the private operators,
including the Respondent Nos.1 and 2 herein,
to be given any further opportunity of hearing
regarding their claim to operate on the route
in question on the basis of their permits
which had been cancelled.
13. Mr. Ranjit Kumar, learned senior counsel
appearing for Respondent Nos. 1 and 2,
submitted that all that the said respondents
wanted was an opportunity to place their
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respective cases before the State Transport
Authority in order to establish their
eligibility on the strength of the permits
issued to them earlier to operate on the
routes in question. Mr. Ranjit Kumar urged
that the permits issued to the respondents did
not stand cancelled as per the procedure under
Section 103(2) of the 1988 Act, but merely
became inoperative.
14. He also urged that after a survey conducted in
June 2007, the State Transport Authority had
arrived at a conclusion that the appellant-
Corporation was not in a position to provide
appropriate service on the notified routes
which caused the State Government to issue a
Notification on 12.12.2007 proposing to modify
the exclusive Scheme in terms of section 102
of the 1988 Act. It was urged that even on a
notified route, when a notified operator was
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unable to provide adequate service, the State
Transport Authority and the State Government
were vested with powers under Section 102 of
the 1988 Act to modify the Scheme. Mr. Ranjit
Kumar referred to the Constitution Bench
decision of this Court in A.P. State Road
Transport Corporation vs. Regional Transport
Authority and another [(2005) 4 SCC 391]
wherein, while considering a similar question
it was held that it was for the State
Government to consider what is suitable for
public service. The State Government has the
power to modify the Scheme in case of a need
since the Scheme is after all intended for the
benefit of the public and if any step was
required to be taken in that regard the State
Government could always do so by modifying the
Scheme.
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15. We are afraid, we are unable to agree with
Mr. Ranjit Kumar on the question of further
hearing to be given to Respondent Nos. 1 and 2
on their claim to be allowed to operate on the
notified routes in question on the basis of
the permits which according to the said
respondents were dormant and were capable of
being reviewed in the existing circumstances.
16. As we have indicated earlier, the permits of
the private operators on the said routes were
renewed by the State Transport Appellate
Authority by its order dated 20.1.2006 which
made it very clear that such renewal would be
subject to the fate of W.P. No.9332 of 2002.
The said writ petition was disposed of on
1.6.2007 by the Allahabad High Court and the
said judgment has been reported in 2001 Vol. 5
ALJ at page 255. After considering the entire
matter in detail, the Division Bench of the
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High Court has allowed the said writ
application filed by the appellant-Corporation
and has negated the contentions of the private
operators who, it was held, were only entitled
to compensation in terms of the provisions of
the 1988 Act.
17. In that view of the matter, the present appeal
has to be allowed. The directions given by the
High Court in Civil Misc. Writ Petition No.
47949 of 2008 are hereby set aside and the
prayer made by Respondent Nos. 1 and 2 herein
for being given a hearing to establish their
claims is also refused. This will not,
however, prevent the said respondents from
claiming compensation under Section 105 of the
Motor Vehicles Act, 1988.
18. The appeal is accordingly allowed in the above
terms.
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19. There will, however, be no order as to costs.
CIVIL APPEAL NOs. ________ OF 2009
(@ S.L.P.(C)Nos.520 of 2009 and 783 of 2009)
20. In view of the aforesaid, leave is also
granted in these two special leave petitions, which
are also allowed and disposed of accordingly.
______________J.
(ALTAMAS KABIR)
______________J.
(CYRIAC JOSEPH)
New Delhi
Dated: 20.07.2009