JUDGMENT
Ashok Kumar Mathur, C.J.
1. This is an appeal directed against the order passed by the Learned Single Judge dated 21st November, 2000 whereby the learned single Judge has dismissed the writ petition.
Aggrieved against this order the present appeal has been filed by the petitioner/ appellant.
2. The brief facts are that the petitioner is the holder of a permanent stage carriage permit for the route from Howrah to Digha. He has challenged the temporary grant of permit in favour of respondent No.8 from Kasbagoia to Calcutta/Howrah. The petitioner was operating on this route since long and his permit was valid upto 9th August, 2000. It was alleged that he was operating on this route for the last 16 years. Thereafter a scheme was notified by the Government of West Bengal on 15th September, 1988 in pursuance of Section 68D(3) of the Motor Vehicles Act, 1939 now under Section 100(3) of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act of 1939 and 1988). The scheme related to nationalisation of the route Calcutta/Howrah to Digha (hereinafter referred to as the notified route). The same was published in the Calcutta Gazette (Extraodinary) dated 12th April, 2000 which reads as under :
“WHEREAS the Government of West Bengal considered it necessary and expedient in the public interest that a Scheme should be formulated under Chapter VI of the Motor Vehicles Act, 1988 in favour of the State Transport Undertakings in supersession of all other notifications published earlier in respect of the area and route mentioned hereinbelow;
AND WHEREAS, in pursuance of Section 99 of the said Act, the State Government, for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, formulated the Scheme as mentioned herein below;
AND WHEREAS, the proposal regarding the Scheme was published under this Depit’s Notification No. 2125-WT/STA-1/97 dated 18th March 99 in Part-I of the Calcutta Gazette, Extra-ordinary, dated 16th April, 1999, as required under Section 99 of the Motor Vehicles Act, 1988 (59 of 1988) (hereinafter referred to as the said act);
AND WHEREAS, in pursuance of provisions of Sub-section (2) of Section 100 of the said Act, after considering the representation filed by the objectors, after giving them due hearing, the said proposal has been approved by the State Government;
NOW THEREFORE, in pursuance of provisions of Sub-section (3) of Section 100 of the said
Act, the Government is pleased hereby to publish the scheme relating to the said proposal as approved under Sub-section (2) of Section 100 of the said Act, for general information :–
SCHEME
The Calcutta State Transport Corporation and the South Bengal State Transport Corporation being the State Transport Undertakings shall, for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service operate and run in the public interest passenger stage carriage service in relation to the area and routes, particulars whereof are specified in the Schedule below to the exclusion of all other passenger transport service between the stretch of the route lying through Heria and Digha on the route Calcutta/Howrah West Bengal except:–
i) Other State Transport Undertakings;
ii) The existing lawful permanent stage carriage permit holders as on the date of publication of the approved Scheme in the route/area specified in the Schedule hereto or in any portion thereof;
iii) Persons who may be allowed to operate stage carriage service in the existing route partially overlapping or crossing over the said route provided further that the overlap may not exceed to adjacent regions in the said sector.
iv) Any other State Transport Undertaking of foreign countries through general/ special agreements and/or treaties;
v) State Transport Undertakings of other State and other operators who may be granted permits in pursuance of inter-State reciprocal transport agreements entered into between the State of West Bengal and such States as envisaged in Section 88(5) and (6) of the said Act;
vi) Tourist Permits, Special Permits not exceeding a single round trip during the period of permit;
vii} Existing Contract Carriage Permit holders operating over the route/area specified in the Schedule to the approved Scheme as of the date of publication of that Scheme or over portion of route/area.
SCHEDULE
Area
route
No. of vehicles on daily service charges
min/max
Fare, Timetable & Luggage
Nature of service
Reserved for break down, repairs/maintenance. failure fromother causes
Calcutta Howrah. Midanapore
Calcutta/ Howrah Digha, via Kolaghat, Mecheda, Norghat Heriabazar Contai, Ballsai.
30 60
As approved by STA West Bengal
All Types of State Carriage Services, viz. Limited Stop ordinary express.
2
By order of the Governor.
(A. Ahad)
Deputy Secretary to the
Government of West Bengal”
2A. Thereafter the notified scheme came into force for the route Calcutta/Howrah-Digha via Kolaghat, Mecheda, Norghat, Heria, Bazar, Cental and Balisai and permission
was given in favour of South Bengal State Transport Corporation and Calcutta State Transport Corporation, it is alleged that after issuance of this scheme a permanent permit was also issued in favour of respondent No. 5 for the route Solepatta to Calcutta via Contai and Heria. It was submitted before us that the grant of permit in favour of the respondent No. 5 is illegal and contrary to the scheme. It was alleged that the grant of permission in favour of respondent No. 1 on the aforesaid route which covers the area of Contai to Heria of the notified route as against the notification dated 12th April. 2000 and as such the grant is absolutely illegal and contrary to law. However it appears that during the proceedings before the learned single Judge a temporary permit was granted in favour of newly added respondent No. 8 in the route from Kasbagola to Calcutta was also challenged. The grant of permit in favour of respondent No. 8 from Kasabgoia to Calcutta/Howrah overlaps the notified scheme of Digha to Calcutta/ Howrah from portion of Contai and Heria. Therefore, the grievance of the petitioner was that since he holds a permit on this route as an existing holder of the permit as he is covered by Clause (2) of the aforesaid notification, the grant of permit in favour of respondent No.8 from Kasbagoi to Calcutta/Howrah overlapping a portion from Contai to Heria cannot be granted as it overlaps the aforesaid portion of the notified scheme. Therefore, in short, the grievance of the petitioner
is that the grant of permit in favour of the respondent No.8 is illegal as it overlaps the portion from Contai to Heria of the notified scheme which cannot be permitted. The contention of the respondent No.8 was that his case is covered by Clause (3} of the notified scheme which says operators may be allowed to operate stage carriage service in the existing routes partially overlapping or crossing over the said route provided further that the overlap may not exceed to adjacent regions in the said sector.
3. The contention of the learned counsel for the appellant was that the permit which has been granted to the petitioner exceeded to another region that is Howrah region as the permit which has been granted to the respondent No.8 covers two regions that is Kasbagoia in Midnapore and Howrah. Therefore, the grant of permit in favour of the respondent No.8 is in violation of Clause (3) of the Notification. We have considered the submission of the learned counsel for the petitioner/appellant. As a matter of fact, the route of respondent No.8 covers two regions that is Midnapore and Howrah and he overlaps the notified portion of the said route of Midnapore region only. The learned counsel for the appellant submitted that since it covers two regions and as per Clause (3) of the notified scheme if the existing route is partially overlaps or crosses the said regions in the said sector in that case he is not permitted to overlap this notified route. For
better appreciation of situation we again reproduce Clause (iii) of the Scheme which reads as under :
“Iii) Persons who may be allowed to operate stage carriage service in the existing routes partially overlapping or crossing over the said route provided further that the overlap may not exceed to adjacent regions in the said sector”;
4. As a matter of fact, such kind of corridor permission is permissible under the Motor Vehicles Act. In the notified scheme itself this corridor permission has been provided. The question is that whether the overlapped portion of the notified scheme is prohibited to be overlapped in a route which falls in the said two regions or that it should not overlap the notified route of the adjacent region in the said sector. In our opinion, what it means is that if any of the overlapped portion falls in an adjacent region then that is prohibited but if it falls in the same region then such overlapping is not prohibited under Clause (3) of the notified scheme. The whole idea behind this Clause (3) is that if the part of the route falls in the same region then such private operators should not be prohibited to operate but if it falls in adjacent region then in that case such corridor permission will not enable the private permit holders to operate on that route. The learned single Judge has interpreted the expression “to” appearing in the expression “not exceed to adjacent regions in the said sector” in Clause (3) to mean “two”. That interpretation, in our view, is not correct, the Courts cannot substitute words, it can only interpret words which exists in the legislation. To substitute the word “to” with the expression “two” cannot be done by the Court. We have quoted the in scheme from the gazette notification and the word is “to” only and not “two”. Therefore, taking the expression “to” what it prohibits is that another notified scheme of the adjacent region cannot be permitted to be overlapped. It does not prohibit if the route in the particular sector runs into two regions and one of the portion falls in another region then it is to be prohibited but if it falls in the same region that is in Midnapore then in that case it is permissible under Clause (3) of the notified scheme. Therefore, we are of the opinion, that the permission granted in favour of the respondent No. 8 is not hit by Clause (3) of the notified scheme. Our attention was invited to a decision of the Apex
Court in the case of Mlthllesh Garg v. Union of India : wherein it was observed that the provisions of the Motor Vehicles Act. 1988 meant to liberalise the policy of grant of permits under the Act. It was observed by the Apex Court (Para 5) :
“A comparative reading of the provisions of the Act and the old Act (1939) makes it clear that the procedure for grant of permits under the new Act has been liberalised to such an extent that an intended operator can get a permit for asking irrespective of the number of operators already in the field.”
It was further observed by the Apex court that (Para 10) :
The Act provides liberal policy for the grant of permits to those who intend to enter the motor transport business. The provisions of the Act are in conformity with Article 19(1)(g). When the State has chosen not to impose any restriction under Article 19(6) in respect of motor transport business and has left the citizens to enjoy their right under Article 19(1) (g) there can be no cause for complaint by the existing operators.”
5. In facts. 102 lays down that the State Government may at any time, if it considers necessary, in the public interest to do so, modify any approved scheme after following certain procedures laid down in the said Act. I Therefore, such prohibitive provisions has to be read in context of the Motor Vehicles Act, 1988. When there is a liberal approach in transport business then the prohibitive provisions should be read in that context only and it should not be given a meaning beyond what it intended to convey. As mentioned above, we are of the opinion that Clause (3) of the scheme only prohibited that if any other notified scheme which falls in the adjacent region then that overlapping is prohibited but if it falls in the same region then the Intending private operators or existing private operators cannot be prohibited. In fact, the petitioner himself is a private operator and is operating on the same route by virtue of Clause (2) of the notified scheme. It may not be out of place to mention that an objection was also taken with regard to the locus standi of the appellant and it was contended that the petitioner himself is a private operator and is also overlapping the notified scheme. The State Transport Undertakings, for whose benefit this scheme has been prepared has not
objected to grant of permit to the respondent No. 8, therefore such grant of permission cannot be challenged by another private operator who is somewhat similarly situated.
6. Our attention was also invited to a decision of the Apex Court in Mithilesh Rani v. Regional Transport Authority, Dehradun, wherein in somewhat Identical situation their Lordships observed (Para 14) :
“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 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. This aspect would become relevant if and when the State Transport Undertaking objects to grant of permits to the appellant and the approved scheme or draft scheme, as the case may be, placed before the Court in support of the said objection. In the present state of facts, we decline to go into the said question.”
7. Therefore, the petitioner who is a private operator and is operating in the same route cannot be given a handle to beat his rival in trade. As already mentioned above that the Motor Vehicles Act, 1988 came to liberalise the transport services and the petitioner himself is enjoying the benefit in terms of Clause (2) of the notified scheme as private operator and he cannot be permitted to raise objection to out-beat his competitors in the business.
8. Our attention was invited to a decision of the Supreme Court in C. Kasturi v. Secretary. Regional Transport Authority, where a challenge was made to the scheme permitting overlapping to the extent of 8 kilometers as “town service” therein it was observed by their Lordships that overlapping to the extent of 8 kilometers on a notified route is permitted. However, it was observed that the grant of a temporary permission, after the notified scheme has come into force, cannot continue for years.
9. Our attention was also invited to the decision of the Supreme Court in the case of Afsar Jahan Begum v. State of M. P., . Here also, the approved scheme was modified and a relaxation was granted to the extent of 25 kilometers on notified scheme to the private operators with the condition, without pick-Ing up or setting down the passengers on notified route and it was held by their Lordships that if the scheme has been modified and a benefit of relaxation to the extent of 25 kilometers have been given on the notified scheme on certain conditions that is without picking up or setting down the passengers on notified route then in that case no relief can be granted to the petitioners and he can only have the benefit of the modification on the terms and conditions mentioned in that modified notification.
10. Our attention was also invited to a decision of the Supreme Court in Adarsh Travels Bus Service v. State of U. P., . This was a case in which there was total prohibition and the private operators were overlapping certain portion of the nationalised route. In that context it was held if no corridor permission has been granted in the notified scheme then the private operators cannot be permitted to ply over that part of the overlapping common sector even if the corridor restrictions, that is, he does not pick up or drop passengers on the overlapping part of the route. But in the present case the permit has been granted to the private operators by modifying the notified scheme.
11. Our attention was also invited to a decision of the Rajasthan High Court in Dal Chand v. RTA, . In this case the question was that the approved scheme was implemented after considerable delay and it approved overlapping to the extent of 10 kilometers by the private operators, their Lordships held that on account of such permission overlapping by the private operators to the extent of 10 kilometers on the nationalised route cannot invalidate the scheme.
12. Hence as a result of the above discussion we are of the opinion that there is no merit in this appeal and the same is dismissed with no order as to costs.
Girish Chandra Gupta, J.
12A. I agree.
13. The Court: Prayer for stay is rejected.