IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07/08/2003
CORAM
THE HONOURABLE MR.B.SUBHASHAN REDDY, CHIEF JUSTICE
AND
THE HONOURABLE MR.JUSTICE D.MURUGESAN
W.P.No.23854 of 2001
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W.P.No.23854 of 2001:
R.Srinivasan .. Petitioner
-Vs-
1. State of Tamil Nadu rep. by
Secretary
Home Department
Fort St. George
Chennai-9
2. Regional Transport Authority
Villupuram District
Villupuram .. Respondents
Writ Petition filed under Article 226 of the Constitution of India,
praying for the issue of a Writ of Declaration declaring the Tamil Nadu Motor
Vehicles (Special Provisions) (Cancellation of Variation of conditions of
Permit) Act, 1996 is unconstitutional, ultra vires and void and for a
consequential direction to the second respondent to permit the petitioner to
operate his stage carriage service bearing Regn.No.TN-57-Z-2289 on the varied
route Melpattampakkam to Villupuram (via) Valavanur and Kolianoor Cross Road
as per the order of the second respondent dated 9.4.96 made in
R.No.16703/A2/95.
!For Petitioners:: Mr.K.Alagirisamy, learned
Senior Counsel for Mr.M.Palani,
Mr.M.Krishnappan,
Mr.C.R.Krishnamoorthy,
Mrs.Radha Gopalan,
Mr.R.S.Ramanujam,
Mr.P.Vedavalle,
Mr.T.Padmanabhan,
Mr.S.Govindraman,
Mr.R.Natesan,
Mr.S.C.Palanisamy,
Mr.V.Sanjeevi,
Mr.V.A.Sadagopan,
Mr.K.Hariharan,
Mr.S.Parthasarathy,
Mr.N.Gopalakrishnan,
Mr.K.M.Venugopal
and Mr.S.Venugopal
^For Respondents :: Mr.R.Muthukumaraswamy,
Additional Advocate General
assisted by Mr.V.Raghupathi
Government Pleader
:COMMON ORDER
D.MURUGESAN, J.
In all these writ petitions, the respective petitioners have prayed
for writ of declaration declaring the Tamil Nadu Motor Vehicles ( Special
Provisions) (Cancellation of Variation of Conditions of Permit) Act, 1996,
(Act 19 of 1996) (hereinafter referred to as the “Impugned Act”) is
unconstitutional, ultra vires and void and have consequently prayed for
directions to the respective Regional Transport Authorities to permit the
petitioners to operate their stage carriage services on the respective routes
based on variations granted prior to the ” Impugned Act”.
2. In order to appreciate the challenge, certain facts leading to the
impugned enactment must necessarily be stated. After the introduction of
Chapter IV-A in the Motor Vehicles Act 1939, the State Government framed
various Schemes notifying different routes during the year 1976. The Scheme
enabled operators mentioned in Schedule II alone to operate apart from State
Transport Undertakings. Pursuant to the publication of the draft Scheme, all
other private stage carriage operators were excluded from operating any part
of the notified routes. Since there was bifurcation of various routes, the
State Transport Authorities issued new permits and also renewed the existing
permits for those routes. Such routes also traversed part of the notified
routes. New permits and renewal of the existing permits were granted on the
impression that exclusion of private operators under the Scheme was partial
only. The grant of new permits and the renewal of existing permits were
challenged by the State Transport Undertaking on the ground that after the
publication of the draft Scheme, all private stage carriage operators were
excluded from operating even on any part of the notified route. The said
challenge was upheld and it was declared that such permits which overlapped
even a portion of the notified route were invalid. One of the operators by
name M.A.Egappan who got permit to operate on a non notified route, while
obtaining the renewal of permit got permission to ply on a route part of which
overlapped the notified route, approached this Court, but was unsuccessful.
The matter was taken to the Apex Court and the Apex Court in the judgment in
“PANDIYAN ROADWAYS CORPORATION LTD. v. M.A.EGAPPAN 1987 (2) SCC 47″ held
that no person other than those mentioned in Annexure II to the draft Scheme
can operate the stage carriage service on the entire notified route or any
part thereof apart from the State Transport Undertaking. The Apex Court
following the decision of a Constitution Bench in “ADARSH TRAVELS BUS SERVICE
v. STATE OF U.P. (1985 (4) SCC 557)” further declared that the permits
granted to stage carriage operators, which overlapped any part of the notified
route were invalid. In view of the said judgment, approximately more than
4000 permits of private operators were rendered invalid.
3. The State Government was approached by such of those private
operators with a grievance that even small operators having less than five
permits were necessarily to take the vehicles off the road which caused
hardship. The State Government considering the above plea and also taking
note of the hardship and inconvenience caused to the travelling public and
also the difficulty by the State or the Undertaking to replace the vehicles as
it involved heavy expenditure, issued the Government Order No.2222 of 1997
sometime during July 1997 entitling the State Transport Authorities to renew t
he permits of such operators and also requested the Transport Undertaking not
to oppose such renewal of permits. In fact a Bill was introduced in L.A.Bill
No.42 of 1987 with an object to grant permits to small operators to ply their
stage carriage on any portion of the area or the route covered by the draft
Scheme or the approved Schemes. Though the said Bill was assented by the
President, it was not published and hence it never came into force.
4. While the matter stood at that stage, the Motor Vehicles Act, 193
9, was repealed and the Motor Vehicles Act, 1988 (Act 59 of 1988) was enacted
and the same came into force from 1.7.89. The said Act permitted pending
Schemes to be published and approved within the year of expiry of which it was
to lapse. Therefore the Schemes were to be approved on or before 30.6.90. In
view of the Act 59 of 1988 requiring the approval of the Schemes under the Act
as well the law laid down by the Apex Court in Pandiyan Roadways case, the
private operators were disabled from plying on the notified route and as a
necessary corollary, the Government Order No.2222 of 1987 had to be withdrawn.
The State Government, therefore, issued G.O.Ms.No.1794 during August 19 90
withdrawing the earlier order no.2222 of 1987. Consequently, L.A.Bill No.42
of 1987 was repealed by an ordinance issued on 8.10.90. In view of the above
developments, the small operators were once again placed with difficulty in
operating their vehicles and consequently were forced to take the vehicles off
the road. Batch of writ petitions were filed seeking for a direction to the
State Government to publish L.A.Bill No.42 of 1987 and also challenging the
validity of the Government Order issued on 8.10.90 withdrawing the earlier
Government Order of 1987. All these writ petitions were dismissed by this
Court. Thereafter, the Tamil Nadu Motor Vehicles (Special Provisions) Repeal
Act, 1991 was passed repealing L.A.Bill No.42 of 1987. The aggrieved
operators numbering approximately 4000 who were granted permits overlapping
notified routes after 1976 approached the Apex Court under Article 32 of the
Constitution of India for different reliefs. At that juncture, the State
Government enacted the Tamil Nadu Motor Vehicles (Special Provisions) Act,
1992 (Act No.41 of 1992) validating all permits issued renewal variations
granted between 4.6.76 and 30.6.9 0. By the said enactment, permits issued
after 30.6.90 but before 31 .7.92 i.e., the date of publication of
notification, were not validated and two classes of small operators were
created in view of cutoff date. The classification was challenged by those
operators who had been issued permits after 30.6.90 on the ground that cut-off
date was arbitrary and there could not be any classification between classes
of operators. The said contention was repelled by the High Court on the
ground that the cut-off date namely 30.6.90 was rational as the Motor Vehicles
Act, 1939, was repealed and the new Act came into force from 1.7.89 with a
provision that the Schemes pending on the date when the Act came into force
would be valid only for a period of one year namely 30.6.90 unless they were
approved and published by the State Government. The said Act 41 of 1992
ultimately came up for consideration before the Apex Court in the judgment in
“TMT.T.P.K. THILAGAVATHI v. REGIONAL TRANSPORT AUTHORITY, PERIYAR DISTRICT,
ERODE AND OTHERS (1995 (1) SCC 456)” and the Apex Court held that no permit
could have been granted after 30.6.90 and the orders rejecting the request of
the operators for new permits after 30.6.90 by the State Transport Authorities
were sustained.
5. All the writ petitioners are stage carriage operators. Though
they applied for variation of conditions of permits in terms of sub section
(2) of section 6 of the Act 41 of 1992, those applications were not considered
since the Government did not frame rules. The Tamil Nadu Motor Vehicles
(Special Provisions) Rules, 1995, were framed in G.O.Ms.No.718 Home (Transport
III) Department dated 18.5.95. An amendment was also made to the said Rules
by notification issued in G.O. Ms.No.1935 Home (Transport III) Department
dated 29.12.95 adding an explanation to Rule 4. By such amendment, certain
enumerated variations were included in the explanation. A further amendment
to the first proviso of sub rule (4) of Rule 4 was made in G.O.Ms.No.26 Home (
Transport III) Department dated 6.1.96 by restricting the distance of
variation upto 24 kms., only in respect of items (c) and (e) of the proviso to
sub rule (4) of Rule 4. By the said Rules, Section 6(2) of the Act 41 of 1992
relating to variation of conditions of permits for stage carriage by enabling
the permit holder to operate on the entire route or any portion of the route
covered by such draft Scheme was given effect to. Rule 4 of the said Rules
empowered the State Transport Authority or the Regional Transport Authority to
consider the application for grant of variation subject to the condition that
the distance covered by such variation shall not exceed 24 kms. Pursuant to
the said rules, the requests of each of the petitioners for variations were
considered and such variations were granted between 24.1.96 and 24.5.96 to as
many as 2000 permit holders. The variations were granted on the ground that
the applications for variations cannot be treated as grant of new permits
though the procedures adopted for grant of new permits are being adopted for
grant of consideration of applications for variations also in the public
interest. Pursuant to the variations granted, the petitioners commenced their
operation. By the Tamil Nadu Motor Vehicles (Special Provisions)
(Cancellation of Variation of Conditions of Permit) Act, 1996, the variations
granted to the petitioners were legislatively cancelled. By individual
proceedings of the respective Transport Authorities, the petitioners were duly
informed to produce the permits of stage carriage services for making
cancellation of various entries. Hence, these writ petitions have been filed.
6. The Tamil Nadu Motor Vehicles (Special Provisions) (Cancellation
of Variation of Conditions of Permit) Act, 1996, is challenged mainly on the
ground that it lacks legislative competency, excessive legislation inasmuch as
the legislature cannot overrule, set aside, cancel or declare void the
judgment of competent Court or Tribunal or quasi-judicial authorities and the
legislature have only the power to remove the basis of the judgment or order
of the Court or Tribunal, but cannot render those judgment or order invalid.
7. We have heard in detail the arguments of Mr.K.Alagirisamy, learned
Senior Counsel for Mr.M.Palani and Mr.M.Krishnappan, learned counsel for the
petitioners and Mr.K.Muthukumaraswamy, learned Additional Advocate General
assisted by Mr.V.Raghupathi, learned Government Pleader for the respondents.
All other learned counsel appearing for the petitioners adopted the arguments
of Mr.K.Alagirisamy, learned Senior Counsel.
8. Insofar as the arguments as to the legislative competency, it is
to be seen that the power of the State to enact the “Impugned Act” is
traceable to Entry 35 of List III of Schedule VII. Article 245 of the
Constitution of India relates to the power of the Parliament to make laws for
the whole or any part of the territory of India and the legislature of a State
to make laws for the whole or any part of the State. Article 246 of the
Constitution of India relates to the distribution of legislative powers as
between the Union and the State Legislatures with reference to List I, List II
and List III of Schedule VII of the Constitution of India. The union
Parliament has full and exclusive power to legislate with respect to matters
in List I apart from the power to legislate with respect to the matters in
List III. The State Legislature has exclusive power to legislate with respect
to matters in List II and has concurrent power with respect to matters
included in List III. Entry 35 of List III relates to the power of both the
Parliament and the State Legislature to enact laws in respect of mechanically
propelled vehicles including the principles on which taxes on such vehicles
are to be levied. No doubt a law passed without legislative competence is
nullity ab initio. It is also well settled that the rule of law constitutes
the core of our Constitution and it is the essence of the rule of law that the
exercise of power of the State, whether it be the legislature or the executive
or any other authority, should be within the constitutional limitations.
Based on the above principles, the challenge to the “Impugned Act” as to the
legislative competency of the State Legislature should be tested. As a follow
up of the judgment of the Apex Court in Pandiyan Roadways Corporation’s case,
large number of permits of private operators amounting to approximately 4000
in number were rendered invalid. Though the Government made an attempt to
bring in a legislation by introducing L.A.Bill No.42 of 1987 with an object to
grant permits to small operators to ply their stage carriage on any portion of
the area or route covered by the draft Schemes or the approved Schemes, the
said bill was not published though it was assented by the President. In the
meantime, Motor Vehicles Act, 1988 (Act 59 of 1988) came into force and the
Tamil Nadu Motor Vehicles (Special Provisions) Repeal Act, 1991 was passed
repealing L.A.Bill No.42 of 1987. While the repealing Act was challenged by
the operators who were granted permits overlapping the notified routes through
the Federation of Operators before the Apex Court, the State Legislature
enacted the Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992 (Act 41
of 1992). Section 6 of the said Act relating to renewal or variation of
permits came into force from 1.7.90. The said section enabled the Transport
Authorities to vary the condition of permits even on routes covered by the
approved Scheme. By virtue of Section 10 of the Act, all permits, renewal or
transfer of such permits or any variation, modification, extension or
curtailment of the route or routes specified in a stage carriage permit during
the period commencing on 4.6.76 and ending with the date of publication of the
Act were validated. The Apex Court in Thilagavathi’s case by upholding the
provisions of the Act held that no person is entitled to claim permit after
30.6.90 as the cut-off date fixed in the enactment is reasonable and
justifiable, as the Act came into force on 1.7.90 and all those permits issued
prior to the said enactment were validated. Thus the power of the State
Legislature to enact the laws regulating the grant of permits, variations,
etc., even on notified routes was upheld by the Apex Court. While the State
Legislature has such a power, it must necessarily be held that the power to
enact law for granting variation shall also include the power to cancel the
variations already granted. In our considered view, the impugned legislation
does not lack any legislative competency. Accordingly, we reject the
contentions as to legislative competency of the State Legislature to enact the
impugned legislation.
9. Further question still remains for consideration is as to how far
the “Impugned Act” would affect the variations granted to the petitioners
pursuant to Act 41 of 1992. Before any discussion on the above issue is made,
it would be also relevant to consider the submissions made by
Mr.K.Alagirisamy, learned senior counsel for the petitioners in challenging
the “Impugned Act” on the ground that the State Legislature cannot overrule,
set aside, cancel or declare void the judgment of a competent Court or
Tribunal or quasi-judicial authorities. The above question is not res integra
as it has come up for consideration before the Apex Court on more than one
occasion. In the judgment in 1969 (2) SCC 283) the Apex Court has held that
the legislature cannot abrogate the power of Courts to nullify a decree, order
or judgment. Recently, the Apex Court in the judgment in “GOVT. OF A.P. AND
OTHERS v. G.V.K. GIRLS HIGH SCHOOL (2000 (8) SCC 370)”, has held that it is
well settled that the legislature cannot overrule a judgment by passing a law
to that effect unless it removes the basis of the legal rights upon which the
judgment is based with retrospective effect and provided there is no violation
of any constitutional provision in such withdrawal of rights retrospectively.
The grant of permit is only a quasi judicial function of the authority. In
the judgment in ” B.RAJAGOPAL NAIDU v. STATE TRANSPORT APPELLATE TRIBUNAL
(AIR 1964 SC 1 573)”, the Apex Court while considering the exercise of power
by the State Transport Authority or Regional Transport Authority under Section
43-A of the Motor Vehicles Act, 1939 has held that the Tribunal constituted
under the Act must be left absolutely free to deal with the matters according
to their best of judgment as they discharge their quasi judicial function.
Concepts of judicial act imply that the act is not wholly judicial. It
describes only a duty cast on the executive body or the authority to conform
to norms of judicial procedure in performing some acts in exercise of its
executive power. A quasi judicial function is an administrative function
which the law require to be exercised in some respects, as if it were judicial
and a quasi judicial decision is therefore an administrative decision which is
subject to some measure of judicial procedure.
10. In view of the fact that the Transport Authorities have
discharged only quasi judicial function while granting variations to the
petitioners under sub section (2) of Section 6 of Act 41 of 1992, how far such
variations granted by a quasi judicial authority could be taken away by the
subsequent legislation is a further question to be considered. The answer to
this question is the judgment of the Andhra Pradesh High Court in “TELUGUNADA
WORKCHARGED EMPLOYEES STATE FEDERATION, NALGONDA DISTRICT UNION REP. BY ITS
PRESIDENT v. GOVERNMENT OF INDIA, REP. BY ITS SECRETARY, MINISTRY OF LABOUR
AND EMPLOYMENT, NEW DELHI AND OTHERS (1997 (3) ALT 492” rendered by one of us
The Chief Justice). That was a case where by a Government Order an award of a
Tribunal was sought to be annulled. After elaborately considering the various
judgments, more precisely in paragraphs 11 and 12, the Court has held as
follows:-
“Our Constitution ordained democratic form of Government. It has setup three
traditional instruments for administering the State affairs, i.e., (1)
Legislature, (2) Executive and (3) Judiciary. The power of legislature in our
Constitution is limited in three directions-(i) power to legislate on a
subject traceable to specific entry, (ii) not to violate Part-III, and (iii)
not also to violate the Constitutional provisions or injunction even if it
does not fall under Part-III. In State of Bihar and Others v. Bihar
Distillery Ltd., Justice B.P. Jeevan Reddy, speaking for the Supreme Court
held “the Court must recognize the fundamental nature and importance of
legislative process and accord due regard and deference to it, just as the
Legislature and the Executive are expected to show due regard and deference to
the judiciary. It cannot also be forgotten that our Constitution recognizes
and gives effect to the concept of equality between the three wings of the
State and the concept of ‘checks and balances’ inherent in such scheme”. The
purport of the said law laid down by the Supreme Court is that the
Legislature, Executive and Judiciary should act within their bounds and
limitations and that one wing should not encroach upon the powers of another
and that so long as the Legislature and Executive act within their power and
competence, the Judiciary should not interfere in their acts or actions.
Our Constitution vests judicial powers in the Courts and Tribunals and
not in the Executive. Independent judiciary is the essence of Constitution
and that is clear from Article 50 and Chapter VI of Part VI thereof. The
above are basic concepts of democracy and are, thus, basic features of
Constitution. The Rule of Law envisages that administrative decisions should
be subject to effective system of review by the Courts. The rule of law
secures individual rights through the medium of an impartial judicial
authority. Judiciary is one of the pillars of free society erected by rule of
law designed to protect the individual from exercise of arbitrary power.
Accordingly, the Courts of law are invested with essential attributes of this
basic feature. The Constitution Bench of the Supreme Court in Chandramohan v.
State of U.P., after emphasizing the important functions of the High Court,
has held:
“????But the makers of the Constitution also realized that “it is the
Subordinate Judiciary in India who are brought most closely into contact with
the people, and it is no less important, perhaps indeed even more important,
that their independence should be placed beyond question in the case of
superior Judges.” Presumably to secure the independence of the judiciary from
executive, the Constitution introduced a group of Articles in Chapter VI of
Part VI under the heading ” Subordinate Courts”. But, at the time the
Constitution was made, in most of the States, the magistracy was under the
direct control of the executive. Indeed, it is common knowledge that in
pre-independence India there was a strong agitation that the judiciary should
be separated from the executive and that the agitation was based upon the
assumption that unless they were separated, the independence of the judiciary
at the lower levels would be a mockery. So, Article 50 of the Directive
Principles of State Policy states that the State shall take steps to separate
the judiciary from the executive in the public services of the States. Simply
stated, it means that there shall be a separate judicial service free from the
executive control.”
This was reiterated by the Supreme Court in the famous case of Kesavananda
Bharathi v. State of Kerala that one of the basic structures of Constitution
is separation of powers between the Legislature, the Executive and the
Judiciary and the same view was further reiterated by the Supreme Court in
Union of India V. Sankalchand stating that Article 50 of Indian Constitution
is the conscience of the Constitution and intends immunisation of judiciary
from any form of executive control or interference. Decisions need not be
multiplied and suffice it to say that our Constitutional Scheme does not
permit any encroachment on the part of the executive over the judiciary and
that the same is the basic feature of the Constitution and that in fact, the
rule of law which is the basic structure of Constitution envisages that
administrative decisions should be subject to effective system of review by
the Courts.”
11. It is not in dispute that all the petitioners were granted
variations by the Transport Authorities exercising quasi judicial function
more particularly, on the strength of sub section (2) of Section 6 of Act 41
of 1992. Such orders as to grant of variations cannot be annulled or
cancelled by the impugned legislation, as it would amount to encroachment of
quasi judicial functions of the authorities and consequently would take away
the right conferred on any orders by such Tribunal or quasi judicial
functionaries retrospectively. In this context, it would be useful to refer
to the judgment of the Apex Court in “M/S RAMAN AND RAMAN LTD., v. THE STATE
OF MADRAS AND OTHERS (AIR 1959 SC 694)”, wherein the Apex Court has held that
the rights conferred on the operators cannot be taken away retrospectively
except by making a law specifying retrospective effect and within permissible
limits.
12. Act 41 of 1992 was enacted with the object to make special provisions in
respect of permits for stage carriages under the Motor Vehicles Act, 1988 and
in relation to the Schemes and Rules notified under Chapter VI of the said
Act. It should be also kept in mind that the said Act was enacted following
the judgment of the Apex Court in Pandiyan Roadways case. Chapter VI of the
Motor Vehicles Act, 1988 relates to special provisions relating to State
Transport Undertakings. Under Section 99, the State Government is empowered
to prepare and publish proposal regarding a Scheme giving particulars of the
nature of services proposed to be rendered, the area or route proposed to be
covered and other relevant particulars respecting thereto. Under Section 102,
the State Government is empowered to cancel or modify the Scheme so published
under Section 99 of the Act. Section 104 of the Act is more relevant for the
disposal of these writ petitions. It relates to the restriction for grant of
permits in respect of a notified area or notified route and the said section
reads as under:-
“Where a scheme has been published under sub-section (3) of Section 1 00 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 that area or route.”
13. From the above, it is seen that the State Government though
entitled to publish a Scheme notifying the area or route in the public
interest, it has power also to allow permit holders to operate on the notified
route by detailing such permits in the Scheme itself. That was how when the
Scheme was notified in the year 1976 for the route between Madurai and Kumily,
some of the operators who were operating on the scheme route were permitted to
operate as per Annexure II. While the scheme was tested before the Apex Court
in Pandiyan Roadways case, the Apex Court has held that no operator except the
names found in Annexure II and the State Transport Undertaking could be
granted permit or variation on the notified route. To get over the
difficulties experienced by more than 4000 operators who were necessarily to
take their vehicles off the road, Act 41 of 1992 was enacted empowering the
Transport Authorities to grant variations even on notified routes.
14. Section 3 of the Act 41 of 1992 relates to the power of the Regional
Transport Authority to grant permit or renew a permit to a small operator to
ply his stage carriage on the entire route or by the draft Scheme or the
approved Scheme or on such operation of the route covered by the draft Scheme
or approved Scheme for a specific period subject to such terms and conditions
which it may in respect of matters specified in sub section (2) of Section 72
of the Motor Vehicles Act or in respect of any other matters as it thinks fit.
The relevant section for the disposal of these writ petitions is sub section
(2) of Section 6 of the said Act which reads as under:-
“Notwithstanding anything contained in the Motor Vehicles Act or in an
approved scheme, the Regional Transport Authority may, on an application made
by the small operator in accordance with the rules made in this behalf and
subject to such conditions as may be prescribed, vary the conditions of a
permit for a stage carriage so as to enable the applicant to operate on the
entire route or any portion of the route covered by such approved scheme.”
By virtue of the above provision, the Transport Authority is empowered to vary
the conditions of permit for stage carriage to enable the permit holder to
operate on the entire route or any portion of the route covered by such
approved scheme. The provision is explicit in terms of the intention of the
legislature empowering the Transport Authorities to grant variation of
conditions of permit even on a route covered by draft scheme. Though such an
enactment was made, the provisions could not be given effect to for want of
Rules till the year 1995 when the Tamil Nadu Motor Vehicles (Special
Provisions) Rules 1995 was notified on 18.5.95. Rule 4 of the Rules relates
to the variation of conditions of permit. Sub rule (4) of the said Rule
relates to the issue in question and the same reads as under:-
“The State Transport Authority or the Regional Transport Authority, as the
case may be, may, after recording the reasons, by order grant or refuse to
grant the variation sought for in the application and shall furnish a copy of
such order to the person who filed the representation:
Provided that in the case of variation, the distance covered by such variation
shall not exceed twenty four kilometers:
Provided further that such variation shall not have the effect of increasing
the number of stage carriages as originally fixed.”
In terms of sub section (2) of Section 6 read with sub rule (4) of Rule 4 of
the Rules, the State Transport Authority or the Regional Transport Authority,
as the case may be, were empowered to grant variations subject to the maximum
distance of 24 kms. By an amendment, an explanation to rule 4 was added by a
notification of the Government dated 29.12.95. By the said enactment, the
following explanation was added.
“For the purpose of the rule, variation shall mean and include:-
(a)increase in the number of trips on the entire route or part thereof
(b)reduction of singles or trips or reduction of singles on portions of the
route
(c)extension of the route
(d)curtailment of the route
(e)variation by keeping the termini and deviating the course of the route
which may involve creation of additional termini
(f)conversion of the town service into mofussil service and vice versa
(g)conversion of jeep and mini stage carriage services into regular stage
carriage services
(h)conversion of Metropolitan service into mofussil service; and
(i)conversion of Express Service into mofussil service and vice versa.”
Pursuant to the above, applications that were pending were considered and the
petitioners were granted variations between the period 24.1.96 and 24.5.96.
The petitioners also started operating their vehicles on the varied routes.
At this juncture, an amendment was brought into as Tamil Nadu Motor Vehicles
(Special Provisions) Rules, 1995 and the same was notified in G.O.Ms.No.758
Home (Transport III) Department dated 25.5.96. The said amendment reads as
under:-
“In exercise of the powers conferred by sub-section (1) of Section 8, read
with Section 6 of the Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992
(Tamil Nadu Act 41 of 1992), the Governor of Tamil Nadu hereby makes the
following amendments to the Tamil Nadu Motor Vehicles (Special Provisions)
Rules 1995:-
In the said Rules, in rule 4,?
(1) in sub rule (4) for the first proviso the following proviso shall be
substituted, namely:-
“Provided that in the case of variation, the distance covered by such
variation shall not exceed twenty four kilometers.”
(2) the explanation shall be omitted.”
A plain reading of the amendment would reveal that only the explanation to
rule 4 of the Tamil Nadu Motor Vehicles (Special Provisions) Rules, 1995 was
omitted and the omission is only prospective.
15. Thereafter, the impugned Act 19 of 1996 was notified on 4.7.96. The
relevant provisions of Section 6 of the Act reads as under:-
“Notwithstanding anything contained in the Tamil Nadu Motor Vehicles Act 1992
or in any other law for the time being in force or in any judgment, decree or
order of Court, Tribunal or other authority, any condition of permit of stage
carriage of a small operator varied by the Regional Transport Authority during
the period commencing on the 24 th day of January 1996 and ending with the
24th day of May 1996, based on the explanation (as it stood prior to the 25th
May 1996) to rule 4 of the Tamil Nadu Motor Vehicles (Special Provisions)
Rules 1995, made under the provisions of the Tamil Nadu Motor Vehicles
(Special Provisions Act 1992, shall stand cancelled and such permit as it
stood prior to the 24th day of January 1996, shall have effect as if no such
variation has been made.
Notwithstanding anything contained in section 3, the Regional Transport
Authority may, on an application, if, in any exceptional case, he is of the
opinion that any variation of the conditions of permit of a stage carriage
which stands cancelled under Section 3, did not result in undue hardship or
suffering to the traveling public, he may restore such variation and such
variation shall be deemed to be a variation made under sub section (2) of
Section 6 of the Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992.”
A plain reading of Section 3 of the “Impugned Act”, is explicitly clear that
the condition of permit of stage carriage of a small operator varied by the
Regional Transport Authority during the period commencing on 24.1.96 and
ending on 24.5.96 based on the explanation to rule 4 of the Tamil Nadu Motor
Vehicles (Special Provisions) Rules, 1995 were cancelled. Question arises as
to whether when the substantive provision of sub section (2) of Section 6
entitling the Transport Authorities to grant variations is not omitted, by
merely deleting the explanation added to sub rule (4) of Rule 4 of the Tamil
Nadu Motor Vehicles (Special Provisions) Rules, 1995, could the State
Legislature cancel the variations granted.
16. Before embarking into a discussion on the scope of the amendment
omitting explanation to rule 4 of the Tamil Nadu Motor Vehicles ( Special
Provisions) Rules, 1995, it would be appropriate to refer to the judgment of
the Apex Court in Thilagavathi’s case as to the scope of Section 6 of Act 41
of 1992. While placing interpretation on various sections of Act 41 of 1992
including Section 6, the Apex Court has observed in paragraphs 7 and 8 as
follows:-
“Reverting to the provision of the Act, it is slightly unusual legislation as
it came into force in July 1992 yet, except Sections 6 and 7 , the remaining
provisions of the Act are deemed to have come into force in 1976 and ceased to
operate after 30.6.1990. The Act thus seeks to achieve dual objective-one,
legislatively protecting those operators who were granted permits after 1976
under misconception by the transport authorities that the Scheme excluded
other operators from ” end-to-end” route only by fictionally enabling the
transport authority to have issued permits notwithstanding any provision in
the Scheme framed by the Undertaking. Two, it prohibited grant of any new
permit after 30.6.1990 which overlapped whole or part of notified route, that
is, the Legislature while accepting the interpretation placed by this Court on
construction of Scheme prepared under Section 68-C legislatively removed the
hurdle in grant of permits on notified route in past, validated the grant so
made but prohibited any grant in future. Sections 3, 4, 5 and 10 are directed
towards regularizing and validating the permits granted between 1976 and
30.6.1990, whereas Sections 6 and 7 achieve the latter objective. Section 3
is the main section. Its sub-sections (1) and (2) empower a Regional
Transport Authority to grant, renew or vary conditions of permit of a small
operator, which, according to the explanation to the section, means any stage
carriage operator holding not more than five stage carriage permits, to ply on
a notified route or part of it notwithstanding anything contained in any draft
scheme. Sub-section (3) of Section 3 provides that during the period the
permit referred to under sub-section (1) or (2) was in force the draft scheme
shall stand modified to that extent. Sub-section (4) makes the provisions of
Chapter V of the Act applicable to grant, renewal or variation of permit.
Section 5 provides that Sections 3, 4 and 6 shall have effect notwithstanding
anything inconsistent therewith contained in Chapters V and VI including
Section 98 of the Motor Vehicles Act. Section 10 validates the grant of
permit retrospectively. Section 3 thus created power in the transport
authority to grant, renew, vary or alter permit from 1976 and Section 1 0
validated such grant notwithstanding anything to the contrary in the new Act.
There was no challenge by the State Transport Undertaking to these provisions
by which the grant of permits in favour of the operators between 1976 and 1990
has been permitted and validated.
Section 6 like Section 3 has four sub-sections. Sub-sections (1) to
(3) deal with renewal of permit or modification of condition therein in
accordance with same procedure as applied to renewal or variation under
Chapter V of the Act. But, sub-section (4) debars the authority from issuing
any fresh permit. It reads as under:-
“Notwithstanding anything contained in this Act no new permit shall be granted
under this Act to any person on any route covered by an approved scheme.”
This section unlike other sections comes in operation from 30.6.1990. Thus
from 30.6.1990 the Regional Transport Authority is not empowered to grant any
new permit to any operator overlapping whole or part of notified route. But
so far permits, grant of which has been validated by 30.6.1990, would be
renewable under this section even after 3 0.6.1990. The effect of Section 6,
therefore, is that those operators who were granted permits between 1976 to
30.6.1990 would be entitled to seek renewal but the authorities would not be
entitled to grant fresh permit after that date. Validity of even sub-sections
(1) and (2) was not challenged by the Undertaking. And sub-section (4) cannot
be challenged by the appellants as it is in keeping with Chapter VI of the new
Act. It is further reinforced by Section 7 which abates all proceedings
pending for grant of permit on a notified route before any authority or court
in appeal.”
In view of the authoritative pronouncement of the Apex Court in the said
judgment, the Regional Transport Authority is not empowered to grant any new
permit to any operator overlapping whole or part of notified route after
30.6.90. But, so far permits, grant of which have been validated by 30.6.90,
the same are renewable under Section 6 of the Act. While interpreting Section
6 of the Act, the Apex Court upheld the validity of the same by approving the
power of the Regional Transport Authority to grant, renew or vary conditions
of permit of small operator namely, any stage carriage operator holding not
more than five stage carriage permits to ply on a notified route or part of it
notwithstanding anything contained in draft scheme. We find no infirmity in
the grant of variations to the petitioners pursuant to subsection (2) of
Section 6 of Act 41 of 1992. Such variations granted are sought to be
cancelled by the “Impugned Act” solely on the ground that explanation to rule
4 of the Tamil Nadu Motor Vehicles (Special Provisions) Rules, 1995 was
omitted. The said explanation was inserted by a notification, dated 29.12.95.
Though some arguments were advanced as to the definition of “variation shall
mean and include”, we do not find any discussion on the same is necessary in
view of our finding that the said explanation is sought to be omitted only
prospectively. Whenever the legislature sought to omit any provisions of law
including an explanation, unless it is explicitly made clear as to the
omission is made retrospectively, it must be held that such omission shall be
deemed to be prospective only. Hence, in our considered view, the variations
already granted pursuant to sub-section (2) of Section 6 read with explanation
to rule 4 of the Tamil Nadu Motor Vehicles (Special Provisions) Rules, 1995
are not affected by mere omission of explanation from the rules. Article
19(1)(g) of the Constitution of India protects the right of the petitioners to
carry on any occupation, trade or business. Such right could be regulated by
the State. The right to ply the vehicles by the petitioners is by virtue of
the permits granted earlier and the consequent variations granted to them
pursuant to Act 41 of 1992. Such rights cannot be infringed by the State
except by law approved by the Cou rts. In this context, it is to be seen as
to whether the deprival of the petitioners to operate on varied routes could
be justifiable by the “Impugned Act”. A reading of paragraph 3 of the
“Impugned Act” is beyond doubt that the variations granted to the petitioners
prior to 24.5.96 were cancelled only on the ground that they were granted by
virtue of explanation to rule 4 and such explanation was omitted on 25.5.96.
The basis for cancellation of variation of permits, in our considered view, is
unjustifiable. The right conferred on the operators pursuant to the
variations granted on the basis of the explanation cannot be infringed by
omission of the explanation more particularly, prospectively. Only placing
reliance on the omission of explanation by the “Impugned Act”, the variations
granted to the petitioners prior to 24.5.96 are sought to be cancelled.
Hence, the “Impugned Act” is liable to be declared as unconstitutional, ultra
vires and void.
17. In view of the above discussions, we declare the Tamil Nadu Motor
Vehicles (Special Provisions) (Cancellation of variation of conditions of
permit) Act, 1996 is unconstitutional, ultra vires and void. Consequently,
there will be a direction to the Regional Transport Authority concerned to
permit each of the petitioners to operate their stage carriage services on the
respective varied routes as per the earlier orders passed pursuant to Act 41
of 1992. Accordingly, all the writ petitions are allowed and the relief
prayed in each of the writ petition is granted. No costs. Consequently, all
the connected W.P.M.Ps. are closed.
Index: Yes
Internet: Yes
ss
To
1. The Secretary to
Government of Tamil Nadu
Home Department
Fort St. George
Chennai-9
2. Regional Transport Authority
Villupuram District
Villupuram