JUDGMENT
N.L. Tibrewal, J.
1. The question involved, in this petition, relates to the right of a person, to obtain a Stage Carriage or Contract Carriage (including temporary) permit under the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) or a special permit under Sub-section (8) of Section 88 to ply a public service vehicle on routes or portions thereof in respect of which a scheme approved under Section 100(3) of the Actor Section 68-D(3) of the Motor Vehicles Act, 1939 (hereinafter referred to as ‘the Old Act’) providing exclusive operation of stage or contract carriages on the said routes by a State Transport Undertaking to the complete exclusion of all other persons has been brought into force. This question arose on issuing permits at the time of Keladevi fair. The prayer made in the writ petition may be reproduced as under:
It is, therefore, prayed that the writ petition filed by the petitioner may kindly be allowed and writ of mandamus, or any other appropriate writ, order or direction may kindly be issued to non-petitioners for:
(i) Restraining the non-petitioner Nos. 1 to 3 for not issuing any kind of Stage Carriage or Contract Carriage permit in connection with the holding of fair of Shri Keladevi to any private operators for providing his transport services from any point in the State of Uttar Pradesh.
(ii) For directing the non-petitioners No. 4 to 6 for not allowing and permitting any transport vehicle of a private operator under a permit issued in connection with the fair of Shri Keladevi by non-petitioners Nos. 1 to 3 and restraining the said non-petitioners from accepting any tax payable under Section 62 of the Act by such operators;
(iii) By issuing a Mandamus to non-petitioners Nos. 4 to 6 for not allowing any transport vehicle of a private operator under a permit issued by Non-petitioners Nos. 1 to 3 in connection with the Mela of Shri Keladevi found operating on the notified route or portion thereof laying in the State of Rajasthan and if so found the said vehicle should immediately be seized:
Any other writ, order or direction which in the fact and circumstances of the present case, deem fit and proper to pass, may kindly be passed in favour of the petitioner.
2. Agra-Bharatpur Inter-State route is a notified route under the approved and notified scheme of the State of Uttar Pradesh published and notified in Uttar Pradesh Gazette dated 20.2.1963 under Section 68-D(3) of the Old Act with the previous approval of the Central Government required under the proviso appended to Sub-section (2) of Section 68-D. The scheme is of total exclusion excluding all the private operators to provide their transport services on the said route or portion thereof. The scheme has been implemented by the State of Uttar Pradesh and the State of Rajasthan and the petitioner-Corporation is operating its transport services on the above route.
3. Similarly, there are following approved schemes of total exclusion duly published in Rajasthan Rajpatra under Section 68-D(3) of the Old Act and the same has been implemented by the Corporation:
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S. No. Name of the Routes Portions of the notified routes. ------------------------------------------------------------------ 1. Jaipur-Bharatpur Bharatpur- to Mathura 2. Bharatpur-Hinduan Bharatpur to Hindaun 3. Jaipur-Keladevi Mahuwa to Keladevi
On all the above notified routes or any portion thereof mentioned in column No. 3 and also shown in the rough sketch map (Annexure 1) filed by the petitioner in the writ petition, no private operator is entitled to provide any transport services as contended by the petitioner corporation. It may be stated that the above facts about approval of the schemes have not been specifically denied by the non-petitioners, including non-petitioners Nos. 2 and 3 who have filed the return in the writ petition.
4. Mr. Rajdeepak Rastogi, learned Counsel appearing for the Non-petitioners Nos. 2 and 3 has opposed the writ petition on three grounds :
(i) that Keladevi fair was held from 30.3.1992 to 17.4.1992 and since the period is over, the petition has become infructuous;
(ii) that temporary permits could be granted by the non-petitioner Nos. 2 and 3 i.e. the Regional Transport Authority (for short ‘RTA’) or State Transport Authority (for short ‘STA’) even in case of total exclusion of transport service vehicles on the nationalised route by a private operator;
(iii) in any case, a special permit under Sub-section (8) of Section 88 of the Act is not included as a stage carriage permit or a contract carriage permit and the same could be issued by the competent authority on such routes.
5. The first contention about the preliminary objection can be over-ruled on the simple ground that Keladevi fair is held every year and the disputes are raised about the competency of the non-petitioners to issue of permits of the category disputed by the non-petitioner Nos. 2 and 3 and as such it requires final adjudication by this Court. While rejecting contention No. 1, I proceed to consider the other two contentions made by Mr. Rastogi.
6. Elaborating contention No. 2, Mr. Rastogi vehemently contended that temporary permits are granted for a limited period to meet any of the contingencies contained in Section 87(1) of the Act. Learned Counsel, contended that a large number of devotees and pilgrims come from Uttar Pradesh and services rendered by the petitioner corporation or Uttar Pradesh State Transport Corporation are not adequate. Mr. Rastogi further contended that RTA, Agra himself had issued 188 special temporary permits to private operators for reserved parties in the year 1991 and that there is reciprocal arrangement for issuance of temporary permits under Section 87(a) of the Act to the private operators. It was also submitted that exclusion or prohibition on a nationalised route to ply transport services by a private operator should not apply on transport vehicles to be used temporarily under a temporary permit to meet a contingency or a particular temporary need.
7. I have considered the above submissions.
8. Chapter VI of the Act and Chapter IV-A of the Old Act provide for the nationalisation of road transport service in the manner prescribed therein. Section 97 of the Act defines the road transport service to mean a service of motor vehicles carrying passengers or goods or both by road for hire or reward. Then Section 98 of the Act (Section 68-B of the Old Act) gave over-riding effect to the provisions of Chapter VI of the Act and Chapter IV-A of the Old Act over the provisions of Chapter V and Chapter IV of the Act and the Old Act respectively. Section 99 of the Act (Section 68-C of the Old Act) provides for preparation and publication of schemes for the road transport service of the State Transport Undertaking. It reads as under:
99. Preparation and publication of proposal regarding road transport service of a State transport undertaking – Where any State Government 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 Government may formulate a proposal regarding a scheme giving particulars of the nature of the service proposed to be rendered, the area or route proposed to be convered and other relevant particulars respecting thereto and shall publish such proposal in the Official Gazette of the State formulating such proposal and in not less than one newspaper in the regional language circulating in the area or route proposed to be covered by such scheme and also in such other manner as the State Government formulating such proposal deem fit.
9. A bare reading of Section 99 of the Act would go to show that the schemes are prepared by the State Government to provide efficient adequate, economical and properly co-ordinated road transport service in the public interest. The scheme may provide a complete or partial exclusion of other persons on the route or any portions thereof to be operated by the State Transport Undertaking. On the proposals made under Section 99 of the. Act objections from the public are called and after considering objections the State Government may approve, modify such proposals. Sub-section (3) of Section 100 (Sub-section (3) of Section 68-D of the Old Act) requires the scheme, as approved or modified, to be published in the Official Gazette, whereupon the scheme becomes final and shall, thereafter, be called as approved scheme. There is a proviso 3, which provides that no scheme which relates to any Inter-State route shall be deemed to be an approved scheme, unless it has been published with the previous approval of the Central Government. Section 102 of the Act (Section 68-E of the Old Act) enables the State Government to cancel or modify any approved scheme in the manner prescribed therein. Then Section 104 of the Act (68-FF of the Old Act) provided restriction to grant of permits in respect of a notified area or notified route. It reads as under:
Section 104- 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 100 in respect of any notified area or notified route, the State Transport Authority or the Regional Transport Authority, as the case may be, shall not grant any permit except in accordance with the provisions of the scheme.
Provided that where no application for a permit has been made by the State Transport Undertaking in respect of any notified area or notified route in pursuance of an approved scheme, the State Transport Authority or the Regional Transport Authority, as the case may be, may grant temporary permits to any person in respect of such notified area or notified route subject to the condition that such permit shall cease to be effective on the issue of a permit to the State Transport Undertaking in respect of the area or the route.
10. It may be stated that proviso to this Section enables, grant of temporary permit to any person in respect of such notified area or notified route if no application for a permit has been made by the State Transport Undertaking in respect of the area or route. Section 105 of the Act (Section 68-G of the Old Act) prescribes the principle and method of determining compensation and its payment to the holders of the existing permit which are cancelled or modified. Section 107 of the Act (68-I of the Old Act) empowers the State Government to make rules for the purpose of carrying into effect the provisions of the Chapter.
11. It is, thus, seen that the provisions of Chapter VI of the Act (Chapter IV-A of the Old Act) are designed to over-ride general provisions of granting permits and they provide a clear procedure and the effect of the take-over of, the portion of a road transport service by the State Transport Undertaking in relation to an area or route or portion thereof. At the stage of preparing of a scheme in the aforesaid provisions, the State Transport Undertaking is required to apply its mind to the question of a complete or partial exclusion of other persons or otherwise from operating transport services in relation to an area or route or portion thereof. There is ample and sufficient guidance to the State Transport Undertaking for application of mind. Thereafter, objections to the scheme are heard and any operator, who is likely to be effected, by total or partial exclusion, can object to the scheme and suggest such modification as he desires to protect his interest. Then, an effective hearing is provided to the objector. Even after the scheme is approved and notified, the State Government is empowered to cancel or modify the scheme if the actual working of the approved scheme provided a difficulty or hardship or otherwise not found to be workable in the public interest. It may be stated that an approved and notified scheme becomes law.
12. A Constitutional Bench of the Apex Court of the country in Adarsh Travel Bus Service and Anr. v. State of Uttar Pradesh and Ors.: considered the entire aspect in relation of a nationalised route under Chapter IV-A of the Old Act and held that where the route covered by the scheme over-laps any route, no permit to private operators could be granted. It was held by their Lordships:
A careful and diligent perusal of Section 68C, Section 68D(3) and Section 68FF in the light of the definition of the expression ‘route’ in Sections 2(28A) appears to make it manifestly clear that once a scheme is published under Section 68D in relation to any area or route or portion thereof, whether to the 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 term s 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. We are not impressed by the appellant various submissions made on behalf of the appellants by their counsel.
The argument regarding inconvenience to the passengers was also considered by their Lordships and it was observed as under:
If indeed there is any need for protecting the travelling public from inconvenience as suggested by the learned Counsel we have no doubt that the State Transport Undertaking and the Government will make a sufficient provision in the scheme itself to avoid inconvenience being caused to the travelling public.
Earlier too also in Section Abdul Khader Saheb v. Mysore Revenue Appellate Authority and Ors.: the following view of the High Court of Karnataka was approved :
When once on a route or a portion of the route there has been total exclusion of operation of stage carriage services by operators other than the State Transport Undertaking by virtue of a clause in an approved scheme, the authorities granting permit under Chapter IV of the Motor Vehicles Act, should refrain from granting a permit contrary to the Scheme.
In T.N. Raghunathan Reddy v. Mysore State Transport Authority: . It was held that an Inter-State agreement does not over-ride the provisions of Chapter IV-A of the Old Act (Chapter VI of the Act). It was held as under:
The Inter-State agreement is not law and to hold that an Inter-State agreement over-rides Chapter IV-A would be to completely disregard the provisions of Section 68-B of the Act which provides that “the provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of this Act of in any other law for the time being in force or in any instrument having effect by virtue of any such law.” In this connection reference was made to Article 162 and Article 293 of the Constitution. But we were unable to appreciate what relevance these articles have to the point at issue. Assuming that a State has power to enter into agreement with another State in exercise of executive powers under Article 162, and under Article 298 it can carry on trade or business, we are unable to see what light these facts throw on the question before us.
In Mysore State Transport Corporation v. Mysore State Transport Appellate Tribunal: it was held that State Transport Undertaking granted exclusive right to run on certain routes under Chapter IV-A of the Old Act, private operators cannot be granted permits on such routes if his route overlaps even a very small portion of the very route.
13. Thus, it is clear that if a notified scheme under Chapter VI of the Act/Chapter IV-A of the Old Act provided a total exclusion, no private operator can be granted a permit which, includes a temporary permit also on such route or a portion thereof. The present case is of a total exclusion of stage/contract carriages–by a private operator and as such no temporary permit can also be granted to a private operator on the nationalised route or a portion thereof. The argument of Mr. Rastogi that a temporary permit is granted to meet a particular contingency of temporary need, a temporary stage/contract carriage permit may be granted on a nationalised route or a portion thereof is not acceptable. It is no doubt true that temporary permits are granted on special occasions of fairs and religious gatherings. If such situation arises in relation to a nationalised route or a portion thereof Section 101 of the Act provides operation of additional services by State Transport Undertaking. Section 101 reads as under:
101.-Operation of additional services by the State Transport Undertaking in certain circumstances- Notwithstanding anything contained in Section 87, a State Transport Undertaking may, in the public interest operate additional services for the conveyance of the passengers on special occasions such as to any from fairs and religious gatherings.
PROVIDED that the State Transport Undertaking shall inform about the operation of such additional services to the concerned Transport Authority without delay.
The petitioner has categorically stated that it has been providing additional buses for Keladevi fair to cater the need of passengers coming from Uttar Pradesh, Madhya Pradesh or Rajasthan.
14. The word ‘permit’ has been defined by the Act in Clause (32) of Section 2, which provides definitions. It provides that ‘permit’ means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorising use of a motor vehicle as a transport vehicle. Section 66 states that no owner of a motor vehicle shall use or permit use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or counter-signed by Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used. It follows that a transport vehicle can in no case, be used in any public place, except under a permit whether temporary or permanent. Section 70 of the Act provides the contents of an application for stage carriage permit and Section 71 provides procedure of RTA in considering the application for stage carriage permit. Section 72 empowers RTA to grant stage carriage permits. Section 74 deals with contract carriage permit Then Section 81 provides for renewal of permits other than a temporary permit issued under Section 86 or special permit issued under Sub-section (8) of Section 88. Section 82 makes provision for transfer of permit. Section 84 provides general conditions attached to all permits. Then Section 86 relates to cancellation and suspension of permits and in my opinion, it also covers all the temporary permits. Then Section 87 specifically deals with the grant of temporary permits. It sets down four circumstances under which a temporary permit may be granted for a period, in no case exceeding four months. It also lays down that RTA may grant such permits without following procedure laid down in Section 80. Sub-section (2) of Section 87 then provides
Notwithstanding anything contained in Sub-section (1), a temporary permit may be granted thereunder in respect of any route or area where-
(i) No permit could be issued under Section 72 or Section 84 or Section 76 or Section 79 in respect of that route or area by reason of an order of a court or other competent authority restraining the issue of the same, for a period not exceeding the period for which the issue of the permit has been so restrained; or
(ii) as a result of the suspension by a court or other competent authority of the permit of any vehicle in respect of that route or area, there is no transport, vehicle of the same class which a valid permit in respect of that route or area, or there is no adequate number of such vehicles in respect of that route or area, for a period not exceeding the period of such suspension.
Provided that the number of transport vehicles in respect of which temporary permits are so granted shall not exceed the number of vehicles in respect of which the issue of the permits have been restrained or, as the case may be, the permit has been suspended.
From the above discussions, it is clear that the use of the word ‘permit’ does not exclude a temporary permit. A temporary permit, therefore, cannot be granted in case of total exclusion on a nationalised route.
15. In Karnataka State Road Transport Corporation v. Secretary, Karnataka State Transport Authority and Ors. 1987 (Supple) SCC 726 it was held as under:
In view of the admitted position that the Inter-State route covered under the Scheme and the Inter-State route in question overlap for a major portion, the principle indicated in Section 68-FF as accepted by the Constitution Bench judgment would bar the grant of a permit unless it is in accordance with law and the provisions of the scheme. We find from the scheme that it saves the existing permits on the Inter-State route subject to corridor restrictions. Admittedly the temporary permit obtained by respondent 2 was not an existing permit when the revised scheme came into force in 1980. Therefore, it would not be saved by the provision in the scheme and the grant of a temporary permit would not be in accordance with the statutory requirements of Section 68-FF. The High Court went wrong in directing grant of a temporary permit to the respondent but the temporary permit that was granted by the High Court has long lapsed. We are told that as no permanent permit has been granted on the route, respondent has still been plying under different temporary permits obtained from the Transport Authority. The appellant-Undertaking has, therefore, seriously pressed before us that the position could be clarified and the Transport Authority could not be allowed to grant further temporary permits to respondent 2. If there be really any need on the Inter-State route, the appellant is prepared to cater to the demand by plying vehicles on the Inter-State route after obtaining temporary permit.
Thus, no temporary permit can be granted on the Intra-State or Inter-State route covered by a scheme of total exclusion of private operators.
16. The third contention raised by Mr. Rastogi has merit as the matter stands finally concluded by a judgment of the Apex Court of the country in Achyut Shivram Gokahle v. Regional Transport Officer and Ors. wherein it was held that a special permit under Section 63(6) of the Old Act (Section 88(8) of the Act) to ply a public service vehicle can be granted even for routes or portion thereof in respect of which a scheme approved under Section 68-D of the Old act providing for exclusive operation of contract carriages on the said routes by a State Transport Undertaking to the complete exclusion of all other persons has been brought into force.
17. Consequently, the writ petition is allowed with costs. The Non-petitioners Nos. 1 to 3 are restrained from granting any kind of Stage carriage or contract carriage permit to private operators, including temporary permits also in connection with Keladevi fair for providing transport services for the routes or portion thereof in respect of which, schemes have been approved as detailed out in earlier part of the order. Non-petitioners Nos. 4 to 6 are also directed not to allow any transport vehicle of a private operator under a stage carriage or contract carriage permit in connection with Keladevi fair issued by non-petitioners Nos. 1 to 3. The cost is quantified at Rs. 2,000/-.