ORDER
P. Sathasivam, J.
1. Since the writ petitions are filed against the common order of the State
Transport Appellate Tribunal, Madras/third respondent herein, they are being
disposed of by the following Common Order. Anna Transport Corporation has
filed W.P.Nos. 13114 to 13117 of 93 questioning the order of the third
respondent in Appeal No. 238 of 92 etc. dated 8-6-93, in granting permit in
favour of the first respondent. Against the very same order, the private
operators/objectors before the third respondent herein filed W.P.Nos. 14651
to 14654 of 93.
2. For convenience, I shall refer the case of the Anna Transport Corporation
in W.P.No. 13114 of 93. The petitioner-Corporation is a State owned
Transport Undertaking within the meaning of Section 2(42) of the Motor
Vehicles Act, operating a large number of stage carriage services in the
entire Salem District and also on the adjoining inter-district and inter-State
routes, in the interest of the travelling public. The first respondent, who
is a stage carriage operator in the Salem District, has applied for grant of
one stage carriage permit, in respect of the route Komarapalayam to Edappadi,
under the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”)
before the second respondent-The Regional Transport Authority, Salem at
Namakkal. The route falls under the classification of ordinary stage carriage
service, as contemplated under the Tamil Nadu Motor Vehicles Rules, 1989
(hereinafter referred to as “the Rules”). The route applied for, overlaps on
the approved scheme, in respect of the route Edappady Bus Stand to
Kumarapalayam, published in the Tamil Nadu Government Gazette dated 22-6-90.
This scheme was under challenge before this Court in W.P.Nos. 7201 of 90
etc., batch, along with other 249 approved schemes. All the schemes including
the schemes relied before the 2nd respondent, were struck down by a Division
Bench of this Court, by its Judgment dated31-10-90. Aggrieved by the same,
the petitioner Corporation along with its other sister transport undertakings,
preferred Special Leave Petitions before the Supreme Court. When the Special
Leave Petitions were pending before the Supreme Court, as against the judgment
of the Division Bench of this Court, quashing the approved schemes, the apex
Court, in a case arising from the State of Rajasthan, involving identical
question of law, took a contrary view to that of this court and impliedly
overruled the said judgment. The authority after taking into account the
pendency of the appeal on the file of the Supreme Court as well as part of the
grant route applied for, overlaps on the approved scheme route, rejected the
application, by its order dated 19-5-92. Aggrieved by the said order of the
second respondent, the first respondent preferred Appeal No. 238 of 1992 on
the file of the third respondent. During the pendency of the appeal on the
file of the third respondent, the apex Court set aside the judgment of the
Division Bench of this Court, made in batch of writ petitions, by its order
dated 16-4-93 and consequently the schemes are restored and as such during the
pendency of the appeal, that there is an approved scheme, in respect of the
route Edappadi bus stand to Kumarapalayam, on which the grant route applied
for, overlaps and that the overlapping sector on the scheme is in between
Kumarapalayam to Annamarkoil. Pending appeal on the file of the third
respondent, the State of Tamil Nadu, notified Tamil Nadu Motor Vehicles
(Special Provisions) Act, popularly known as Tamil Nadu Act 41/1992. As per
Section 7 of the Act 41 of 1992, “every application for the grant of new
permit on a notified route and all appeals, arising therefrom or relating
thereto, made or prepared before the date of the publication of this Act, in
the Tamil Nadu Government Gazette and pending before any Court or with any
Officer, authority or Tribunal, on the said date shall stand abate”. On the
date of the publication of this Act in the Gazette, the appeal filed by the
first respondent was pending and further it is an admitted case that the grant
route applied for overlaps on the notified route and consequently the appeal
filed by the first respondent is hit by section 7 of the Tamil Nadu Act
41/1992 and on the date when the appeal was heard by the third respondent,
namely, 8-6-93, that there is no appeal pending in the eye of law, as the same
stand abated on the date of notification of the Tamil Nadu Act 41/1992. When
the appeal was taken up for hearing on 8-6-93, the petitioner-Corporation
brought to the notice of the Tribunal that as the grant route applied for
overlaps on the approved scheme referred to above and the appeal is hit by
section 7 of the Tamil Nadu Act 41/92. The third respondent, relying upon
item (3) of Schedule II of the scheme, held that the schemes relied upon by
the petitioner-Corporation does not affect the grant route applied for by the
first respondent, as that being mofussil service, whereas the scheme
contemplates town services. On that ground, the third respondent overlooked
the objections of the petitioner-Corporation and granted the permit in favour
of the first respondent by its proceedings dated 8 -6-93. Aggrieved by the
said order, the petitioner-Corporation has preferred the present writ
petition. Similar averments have been made by the very same Corporation in
respect of other routes which overlaps the approved scheme. On the very same
grounds, the private operators/objectors also filed the other writ petitions
as stated above.
3. Heard the learned counsel for the petitioners as well as respondents.
4. The point for consideration in these writ petitions is whether the
order of the third respondent granting permit overlapping the approved scheme
is sustainable or not?
5. First I shall consider the maintainability of the writ petitions, namely,
W.P.Nos. 14651 to 14654 of 93 filed by the private operators. By relying on
a decision of the Supreme Court in MITHILESH RANI v. REGIONAL TRANSPORT
AUTHORITY, DEHRADUN, , Mr. V.A.
Sadagopan, learned counsel appearing for the grantee, would contend that the
writ petitions filed by the private operators are not maintainable, since they
cannot rely the above scheme and it is for the State Transport Corporation to
question the same. First of all, against the very same order of the third
respondent-State Transport Appellate Tribunal, Anna Transport Corporation has
filed Writ Petition Nos. 13114 to 13117 of 93, in such a circumstance, the
said objection is liable to be rejected. The Supreme Court in the decision
referred to above has held that, (para 14)
“14…..Copy of the approved scheme or draft scheme, if any, has not been placed
before us. We do not know whether the scheme excludes the private operators
wholly or partly. Another and more important circumstance is that the State
Transport Undertaking has not chosen to challenge the grant of permits to the
appellants. It is only the respondents 3 and 4 who are operating on a route
which partially overlaps the route concerned herein that have chosen to come
forward. We are not inclined to entertain the said objection at their
instance, more particularly, when a copy of the scheme(s) even has not been
filed… .”
Their Lordships declined to go into the said question. In our case, it was
demonstrated before me that the petitioners in W.P.Nos. 14651 to 14654 of 93
are stage carriage operators operating on the route granted in favour of the
third respondent therein and has got a substantial sector of the permit
granted in their favour. They specifically asserted that the grant made in
favour of the third respondent therein is violation of approved scheme of
Nationalisation, contrary to the provisions of the Act and the Rules made
thereunder. In this regard, Mr. M. Krishnappan, learned counsel for the
private operaotors/objectors very much relied on a Division Bench judgment of
this Court in Writ Appeal No. 331 of 1994 and Writ Petition Nos. 22605/93, 3
937. 3938, 4110 and 4111 of 94 dated 29-6-94 (V. GOWRI AND OTHERS v. RAMAN
ROADWAYS, REPRESENTED BY ITS PROPRIETOR R. VENKATAVARADAN AND OTHERS). In
the said common judgment, similar question was considered by the Division
Bench. An argument was placed before the Division Bench that as the Act has
dispensed with the requirement of calling for objections, and the existing
operators have no right to object to the grant of permit, they cannot have a
right to challenge the variation granted. After referring to an earlier
Division Bench decision of this Court in PATTUKOTTAI AZHAGIRI TRANSPORT
CORPORATION LIMITED v. REGIONAL TRANSPORT AUTHORITY, THIRUVANNAMALAI (Writ
Appeal No. 978 of 1993 dated 4th October, 1993) as well as a decision of the
Supreme Court in MITHILESH GARG v. UNION OF INDIA , the
Division Bench has held that the existing operators can also have a say in the
matter and the petitions filed are maintainable. The Division Bench decision
supports the claim made by the private operators/ objectors. Whereas, in the
case before the Supreme Court cited by Mr. Sadagopan
(cited supra), as copy of the approved scheme or draft scheme was not placed
before the Court, the Court was not aware of the terms of the scheme.
Further, the State Transport Undertaking has not chosen to challenge the grant
of permit in that case. Here, in our case, the approved scheme is before the
Court. The State Transport Undertaking has also filed writ petitions
challenging the grant made by the State Transport Appellate Tribunal. In such
a circumstance, the decision of the Supreme Court relied on by Mr. Sadagopal
is not applicable to his claim and in view of the
Division Bench decision of this Court referred to above, I hold that the
petitioners in W.P.Nos. 14651 to 14654/93 have locus standi to maintain the
said writ petitions.
6. Coming to the merits of the order passed by the State Transport Appellate
Tribunal, it was demonstrated before me that the route applied for overlaps on
the approved scheme. As rightly argued, the State Transport Appellate
Tribunal failed to take note of Section 7 of Tamil Nadu Act 41/92. The
following provisions from the Tamil Nadu Motor Vehicles Rules, 1989 are
relevant:-
“Rule 3 (e) “City and Town Service” means a service plying in a city or a
Municipal Town or any built up place notified in the Tamil Nadu Government
Gazette as “City” or “Town” for this purpose by the Transport Authority
concerned with the prior concurrence of the State Transport Authority. No
route shall lie entirely outside, but atleast one terminus of it shall be
within the limits of municipal town or a city or any built up place notified
for the purpose. The aggregate distance of a “town” or “City Service” route
lying partly within and partly outside the limits of a municipal town or city
or any built up place, notified for the purpose shall not exceed 30
kilometres:
(i) “Express Service” means a service plying on route covering a distance of
not less than 120 kilometres, the permit for which prescribes that on an
average the stage carriage shall stop to pick up or set down passengers only
once for every 25 kilometres of the total distance covered by its route, the
starting and terminal places being excluded for this purpose:
(p) “Ordinary Service” means a service plying in an area other than the Madras
Metropolitan area and routes other than City and Town service routes and
excludes an Express Service:”
A perusal of the above statutory provisions clearly shows that the State
Transport Appellate Tribunal failed to note that there is no class of services
as mofussil, either under the Act or under the Rules, and consequently it
(Appellate Tribunal) erred in classifying the service of the first
respondent/applicant is one for mofussil and whereas the scheme relied upon by
the Transport Corporation is with reference to town services, which is a
material error. The relevant clauses from the approved scheme as published in
the Tamil Nadu Government Gazette are as under:-
“HOME DEPARTMENT
APPROVAL OF SCHEME OF STATE TRANSPORT UNDERTAKING
(G.O.Ms.No. 1251, Home (Transport-D), 22nd June, 1990)
Schedule I
Area of route in relation to which .. EDAPPADY BUS STAND
the scheme is proposed. KUMARAPALAYAM.
Schedule II
1.Route (Starting point and terminus ..1.Edapaddy Bus stand with important
intermediate to Kumarapalayam
stations and route length) or (via) Kullampatty,
portion thereof with distance Chettipatty,Thevoor,
Annamarkoil,
Pamakoodal,
Puliyampatty and
Government Hospital (
RouteLength:26Kms).
2. xx xx
3. Class of service to be introduced .. Town
by the State Transport Under- Service/Ordinary.
taking (Metropolitan, Town,
Other Services, Ordinary or
Express)
4. xx xx
5. xx xx
6. Number of vehicles intended to be .. One-tenth of the
kept in reserve to maintain the total number of
service and to provide for special buses actually
occasions.” running on Town
routes.
It is contended by the learned counsel for the Transport Corporation that
Clause (3) of the Scheme contemplates class of services and corresponding
thereto. It is also contended that the Town service/ ordinary service, which
means, that the scheme takes within its fold, both the town service and the
ordinary service and whereas the interpretation of the Tribunal that the
ordinary service contemplated under the Act is within the Town service is a
material error, which are writ large on the face of the order. The proviso
which forms part of subrule (i) of Rule 3 of the Tamil Nadu Motor Vehicles
Rules, 1989 which contemplates express service, which means, in the City or
Town an express service may be operated if the granting authority prescribes
such a condition in the permit. The finding of the Tribunal that there are
services within the town service, express service and ordinary service is a
misconceived one. As rightly argued, this proviso has no application to
sub-rule (i) of Rule 3; consequently the reasoning of the Tribunal relying
upon this proviso cannot be accepted. The schemes that are framed pursuant to
Rule 280 of the Rules and in the schemes, Clause (3) of Schedule II
contemplates class of service, which are Metropolitan, Town, other service or
ordinary/express. A perusal of these classes would go to show that there is
no mofussil service contemplated under this format. Therefore, the meaning to
be given to each class of service contemplated in the format depends upon the
definition contained in Rule 2 of the Rules and inasmuch as there is no
mofussil service contemplated, either in the statutory format of the schedule
or under the definition clause, the Tribunal committed an error in holding
that ordinary service mentioned under the class of services in the scheme is
the ordinary service, within the town service is a material error.
7. Further, as per the Tamil Nadu Act 41 of 92 which holds the field, so far
as the State of Tamil Nadu, that Act also contemplates no new permit shall be
granted under this Act to any person on any route covered by an Approved
Scheme. As rightly argued, this Act is meant for stage carriage service and
when this section contemplates any route covered by an Approved Scheme route,
whether it is town or ordinary or express route, then no class of service can
be granted on such approved schemes. When this being the legal position, the
Tribunal committed an error in granting permit on the part of the notified
route, on the strength of classification of the services, within the stage
carriage, which is a material error, apparent on the face of the record.
8. The Tribunal has also committed an error in relying upon the judgment of
this Court made in W.P.No. 3584/76 which had been rendered without any
reference to any of the provisions of the Act and consequently the same has no
binding effect as precedent. As discussed earlier, the classification of
services is without any distinction or difference. I have already referred to
the Rules framed under the Motor Vehicles Act which defines Town service as
well as Ordinary service. Rule 3 (e) defines City and Town service; (i)
defines express service; (n) defines Metropolitan service; (o) defines
mini-bus; and (p) defines ordinary service. On a reading of various
definitions would indicate that ordinary service is other than the town
service and, therefore, the application filed by the 3rd respondent for an
ordinary service is not maintainable; hence the grant made in his favour by
the Tribunal is liable to be set aside. I have already referred to the
provisions in the Tamil Nadu Act 41/92. As per Section 6 (4 ) no new permit
can be granted on any route covered by an approved scheme irrespective of
whether the class of service is ordinary or town service or otherwise. All
that is necessary is to find out whether the permit sought to be granted
overlaps on an approved scheme route and if that is so, no application can be
granted under the terms of that section. Further, the appeal which was
pending as on 31-7-92 before the Tribunal automatically stands abated in view
of the applicability of the scheme referred to above. It is clear that the
grant itself is without jurisdiction.
9. Under these circumstances, the impugned common order of the State
Transport Appellate Tribunal, Madras dated 8-6-93 are quashed and all the writ
petitions are allowed. No costs. Consequently, connected W.M.Ps., are
closed.