Raj Transport Co. (P) Ltd. vs STAT

Raj Transport Co. Pvt. Ltd., Amritsar ....... Appellant

Versus

State Transp. Appellate Tribunal Pb. & Ors. .....Respondents

With

CIVIL APPEAL NO. OF 2010 [Arising out of SLP (C) No. 15686 of 2008]

With

CIVIL APPEAL NO. OF 2010 [Arising out of SLP (C) No. 15796 of 2008]

JUDGMENT

Dr. Mukundakam Sharma, J.

1. Leave granted.

2. As all these appeals deal with similar facts and the

issues involved are almost identical, we propose to dispose of

these appeals by this common Judgment and Order.

3. These appeals are filed by the appellants herein being

aggrieved by the Judgment and Order passed by the Punjab & Haryana High Court dismissing their writ petitions while

affirming the Judgment and Order passed by the State Transport

Appellate Tribunal, Punjab, Chandigarh. These appeals arise

out of the similar facts, which we propose to recapitulate

herein.

4. In 1988, the State Transport Commissioner, Punjab

(hereinafter referred to as `the STC') issued a notification,

which was also published in the Motor Transport Gazette

(weekly) Chandigarh, inviting applications for grant of four

stage-carriage permits for plying two return trips daily on

the Samana-Amritsar (via Bhawanigarh, Nabha, Malerkotla)

route. In response to the said notice published, 15

applications, including applications of the appellants and one

of the respondents, namely, Pepsu Road Transport Corporation

(hereinafter referred to as `PRTC') were received. As per

Rules, the contents of those applications were published in

the Motor Transport Gazette (Weekly), Chandigarh, for inviting

objections, if any. Thereafter, all the applicants were

considered on merits by the STC and after hearing all the

applicants, the order was reserved on 29.11.1988. The same

came to be pronounced on 10.12.1988, whereby in public

interest only two stage carriage permits with one return trip

daily were granted to PRTC, one of the respondents herein, on

the ground that the said PRTC was having experience and knowledge of the route. The remaining two permits were

withheld.

5. Against the aforesaid order passed, the appellants herein

and some other aggrieved persons filed five separate appeals.

It may be stated herein that when the aforesaid orders were

passed by the STC, the proceedings were governed by the

provisions of the Motor Vehicles Act, 1939. The aforesaid Act

of 1939, however, came to be repealed by the Motor Vehicles

Act, 1988 which came into force effective from 01.07.1989.

The aforesaid appeals filed by the appellants herein and

others were considered by the Appellate Tribunal and the same

were disposed of by a common order passed on 08.01.2003. By

the said order, the appeal filed by the Indian Bus Service

(Regd.), Malerkotla, was dismissed as being barred by

limitation, whereas the appeals filed by the other four

appellants including the appellants herein were allowed

holding that since two permits were available, therefore, the

same be granted to four appellants with half return trip daily

on the route in question. The Appellate Tribunal passed a

detailed reasoned order for granting benefit to the four

appellants.

6. Feeling aggrieved by the aforesaid order, two writ

petitions were filed in the Punjab and Haryana High Court.

CWP No. 3314 of 2003 was filed by the Indian Bus Service

(Regd.), Malerkotla whereas CWP No. 10661 of 2003 was filed by the PRTC. In CWP No. 3314 of 2003, Indian Bus Service (Regd.)

Malerkotla challenged that its appeal was wrongly dismissed as

time-barred and that its claim for grant of permits on the

route in question was not considered. Whereas in CWP No.

10661 of 2003, PRTC challenged the order of granting of two

permits with half return trip daily on the route in question

to four appellants, on the ground that it had applied for

grant of all the four permits and now after coming into force

of the Act of 1988 and also after introduction of the new

Transport Scheme of the State, the PRTC being a State

Transport Undertaking is solely entitled to all the permits

for the route, which is a monopoly route.

7. A Division Bench of the Punjab and Haryana High Court

vide its order dated 04.08.2006, allowed the writ petitions

and set aside the order dated 08.01.2003 and remitted the

matter back to the Appellate Tribunal to decide the entire

dispute afresh in accordance with law. In the said order, it

was also recorded by the High Court that the Appellate

Tribunal had committed an error of jurisdiction by granting

two permits with half return trip daily to four applicants,

without recording any reason and without inviting applications

for those permits.

8. After the remand, the Appellate Tribunal, vide its

Judgment and Order dated 04.12.2006 dismissed all the five

appeals including the appeals filed by the present appellants. In the said order it was recorded by the Appellate Tribunal

that keeping in view the public interest, the two permits,

with one return daily, were rightly granted to PRTC, who had

prior experience and knowledge of the route, being the extant

operator. In so far as the remaining two permits are

concerned, which were withheld by the STC, it was held that

after coming into force of the Transport Scheme as notified on

09.08.1990, which was subsequently modified vide notification

dated 21.10.1997, it has to be give effect to, as the same is

applicable and in light of the same, the route could not have

been granted to the private operators because a stretch of 83

Kms. of the route in question falls on the monopoly route of

Punjab Roadways and PRTC. Such a conclusion stemmed from the

Transport Scheme, whereby only 20% or upto to a distance of 15

Kms. of the monopoly route (whichever is less) can be

permitted to be operated by the private operators, and

therefore it was held under the Transport Scheme that the

appellants are not entitled to grant of any permit.

9. As against the aforesaid order passed by the Appellate

Tribunal, writ petitions were filed once again before the High

Court by the present appellants, which were heard, and by a

detailed Judgment and Order passed on 12.02.2008, the said

writ petitions were dismissed. Being aggrieved by the said

order three special leave petitions were filed in this Court

on which notices were issued.

10. We heard learned counsel appearing for the parties who

had taken us through the documents on record. Counsel

appearing for the appellants submitted that both the Appellate

Tribunals as also the High Court while passing their orders,

unfortunately ignored the proviso of clause (4) of the

Notification dated 21.10.1997, which modified the earlier

Notification dated 09.08.1990. It was submitted that in view

of such error apparent on the face of the record and omission

on the part of the Appellate Tribunal as also of the High

Court, in ignoring the relevant provision which applies to the

facts and circumstances of the present case, both the

decisions are required to be set aside and quashed. Another

submission which was advanced was that since the process of

inviting applications as also the process for grant of permit

were initiated prior to the coming into force of the new Motor

Vehicles Act, 1988, it must be presumed that in the

proceedings in the present case, the law that was applicable

was the provisions of the old statute of the Motor Vehicles

Act, 1939, and therefore, the new scheme cannot be said to be

applicable to the facts and circumstances of the present case.

11. The aforesaid submissions of the counsel appearing for the

appellants were, however, refuted by the counsel appearing for

the respondents. Our attention was drawn to the provisions of

clause (4) of the notification by which a scheme was

introduced. The said provisions read as follows:

"(4) All future operations on monopoly route shall be operated by the State Transport Undertaking."

Provided that a Private Operator may be

Allowed to operate on a portion of twenty per cent of the monopoly route or up to the distance of fifteen kilometers of the said route whichever is less, where it is necessary or is in public interest to do so;

Provided further that the permits granted by the

Regional Transport Authority before coming into force of the scheme to the private operators for operating on monopoly routes, wholly or on portion thereof on the routes in which the monopoly routes fall, shall remain unaffected".

12. Counsel for the appellants further relied upon the second

proviso to submit that the said proviso is applicable to the

facts and circumstances of their cases as appellants were

granted permit by the Regional Transport Authority before

coming into force of the scheme, and therefore, their cases to

operate even on monopoly routes wholly or on portion thereof

would remain unaffected. The counsel submitted that although

appellants were granted permits to operate on the route in

question by an order dated 08.01.2003 passed by the Appellate

Tribunal, yet the said order would relate back to the order

passed by the STC as the order passed by the Appellate

Tribunal was in continuation of the proceedings before the

State Transport Commissioner, Punjab.

13. Undisputedly, the relevant scheme was introduced under

the provisions of Section 99 read with Section 100 of the Motor Vehicles Act, 1988 (Central Act No. 59 of 1988) and the

same was published in the Gazette on 09.09.1990 by issuing a

notification on 21.10.1997. Modifications were brought in to

the aforesaid scheme and one of the modifications was

insertion of the aforesaid clause (4), by substituting the

earlier clause (4) of the scheme of 1990. The Motor Vehicles

Act, 1939 was repealed and the same was substituted by Motor

Vehicles Act, 1988 that became effective from 01.07.1989.

Section 104 of the Motor Vehicles Act, 1988, which is relevant

for the purpose of deciding the present case, is extracted

below for ready reference:

"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 that area or route."

14. When the aforesaid provision is read with the provisions

of Section 98, sub-section (2) of Section 99 and Sections 102

and 103 of Motor Vehicles Act, 1988, it becomes obvious that

the provisions of the new Act, which came into operation,

would be applicable and govern the cases in respect of the two permits for which appeals were pending before the Appellate

Tribunal on the date when the aforesaid new Act came into

force. During the pendency of the aforesaid appeals also the

new scheme came into operation, and therefore, the claim of

the appellants for grant of two permits which was pending

before the Appellate Tribunal was governed in accordance with

the provisions of the Motor Vehicles Act, 1988 read with the

scheme which was promulgated and was operative and

functioning. Therefore, the date when the Appellate Tribunal

passed the order dated 08.01.2003 granting permits in favour

of the two appellants would be the relevant date on which the

appellants were granted permits and it cannot be said that the

aforesaid permits, which were granted by the order of the

Appellate Tribunal dated 08.01.2003 would relate back to the

order passed by the STC. In our considered opinion, the

relevant date is the date of the grant of the permit and such

date cannot relate back to any earlier period, particularly in

view of the amendment which gives emphasis on the date of

grant of the permit, which factually came to be granted only

after promulgation of the Scheme.

15. Examining the matter from this angle, the said position

would be crystal clear. The scheme was introduced in the year

1990 and the aforesaid substitution of a new clause in place

of old clause (4) was brought about in the year 1997 and in

the said modification/provision it was clearly provided that only those permits which were granted by the Regional

Transport Authority before coming into force of the scheme to

the private operators for operating on monopoly routes, wholly

or on portion thereof would remain unaffected. As on the said

date, when the aforesaid provision was inserted, the

appellants had no permit granted in their favour by the

Regional Transport Authority and therefore it must be held

that the present appellants had no permit in their favour

granted by the Regional Transport Authority before coming into

force of the scheme. Consequently, the aforesaid scheme does

not give any protection or benefit to the appellants. In so

far other contentions of the appellants are concerned, we have

already answered the same in our discussion hereinbefore. In

view of coming into force of the new Motor Vehicles Act, 1988,

effective from 01.07.1989, all the proceedings and

particularly, the provisions of the scheme would be made

applicable even to the pending cases in terms of the

provisions of Section 104 of the Motor Vehicles Act, 1988 read

with Sections 99 to 103.

16. Considering the facts and circumstances of the present

case and the discussion made hereinbefore, we find no merit in

these appeals, which are dismissed, but we leave the parties

to bear their own costs.

............................................J. [Dr. Mukundakam Sharma] .........................................J. [ Anil R. Dave ]

New Delhi, November 19, 2010.