D. M. Thippeswamy v. Appellate Tribunal (Hegde, J.)

862 **D.** **M.** **THJPPESW AMY** _v._ ' **THE** **MYSORE** **APPELLATE** **TRIBUNAL** **AND** **ORS.** _May_ 4, 1972 [K. _S._ HBGDE, A. N. GROVER AND G. K. MITTER, JJ.] _Motor Vehicles Act,_ 1939.-:Ss. 63(1), 68(c) _and_ 68(F)-'An _existing_ _p,rmit_ _ho/der'-meaning_ _·of-Who_ _can_ _cancel_ _an_ _existing_ B _permit_ _of a Transport operator under_ _s._ 68F(2)' _of the Act._ The appellant, a transport operator, obtained a permit from the Regio· naj. Transport Authority for an inter-State route from Mysore State tq Andhra Pradesh. Even before this permit was issued to him, the State of Myoore had notified a draft scheme under s. 68(c) of the Motor Vehicles Act, 1939, providing for the operation of the trunk routes by the State Transport undertaking in the Bellary District. C M.S.R.T.C., a State Transport Undertaking and others ob1ected to the issue of the permit to the aP~llant but the E.T.A. in Mysore State over· ruled their objections. Aggrieved by the said order, M.S.R.T.C. & other rival ciaimants appealed before the Mymre State Transport Appellato Tribunal. Meanwhile, the Government· issued a notification u/s 68(3) of the Act approving the draft scheme issued by it earlier. One of the clauses of the scheme knowri as Bellary scheme, provided that the State D Transport Undertaking will operate services on all routes exoept to the partions of the inter-district routes lying outside the Bellary district. The existing permit holders were allowed to coutinue their operations in inter-State routes subject to the condition that their permits shall be rendered ineffective by the competent authority for the over-lapping por· lion in the district of Bellary. Thereafter, the M.S.R.T.C. applied for permits, u/s. 68 F for the routes mentioned under the Bellary scheme. Till then the appellant had not obtained the counter signature of the con cerned R.T.A. in Andhra Pradesh as required u/s 63 (I) of the Act. The appeal filed by M.S.R.T.C. was dismissed by the Mysore State Transport Appellate Authority and M.S.R.T.C. went up jn appeal before Mysore Revenue Appellate Trib11.nal. During the pendency of that appeal, the appellant obtamed cot1nter-signatures of the concerned R.T.A. in Andhra Pradesh for his inter-State permit. The permit i•sued to the appellant was renewed by the R.T.A. in Mysore State and duly countersigned by the concerned R.T.A. Andhra pradesh. In 1970, the Mysore Revenue Appellate Tribunal allowed the appeal filed by the M.S.R.T.C. and set aside the grant in favour df the appellant on the ground that the appellant was not an existing permit holder and, therefore, not entitled to operate in the route 1n questiOn. Appellant chal· lenged that decision before the High Court <ly filing a writ but it was dis· missed. On appeal by special leave to this Court it was contended on behalf Of the appellant that since the appellant's permit had been counte~­ signed by the concerned R.T.A. in Andhra Pradesh before the permit granted to M.S.R.T.C., the appellant must be considered as an existing permit holder as contemplated by the scheme. Secondly, under the 'Bellary Scheme', there was only a partial exclusion and not total exclu· sion. Therefore' all that the R.T.A. could have done under.•· 68F!2) was to make his permit from Bellary Town to Bellary border meffecttve. and not to cancel his permit altogether and lastly, Mysore Revenue Appellate Tribunal could. not have cancelled his permit. Only R.T.A. could do so under s. 68F(2). E F G H A B ### _c_ D E F D. M. TH!PPESWAMY _v._ APPELLATE TRIBUNAL _(Hegde._ _J.)_ 563 Dismissing the appeal, HELD: (i) The appellant was not an existing permit holder at any rate on July 28, 1964 when the M.S.R. T.C. applied for a permit for the route in question. In _Abdul Gafoor_ v. _State_ _of_ _Mysore,_ [1962] 1 S.C.R. 909, it was observed by this Court that when a schen_ie \'repared anti published under s. 68:C has been. approved and. the appbcati~n bas been made in the proper manner, nothmg more rem:uns to be decided by the Regional Transport Authority and it has no option to refuse the grant of the permit. Further;"'lhil date on which the transport undertaking applies u/s, . 68F(1) for t!ie permit, that must be date with reference to which the expression "existing permit holder" must be interpretea. t567 H] _T._ _N. Raghunatha Reddy_ v. _Mysore State Transport Authority,_ (1970] l S.C.R. 760 referred to. (ii) Under the Bellary scheme, the only persons whole permits are saved are those existing permit holders on the Inter.State routes and not all exlstlna oermit holders. Be· fore the permit holders can be considered u existinJ pel'l!lit holders of the concerned inter-State, they must not only have obtained a permit from .the concerned R.T.A., in the~ home State, they must have also obtained the counter-signature of the concerned States. Until they obtained cowrtersignature of these, they cannot be considered as existing permit holders of the concerned inteI'-State routes. (568 G] C.A. Nos. 1415-1443 of 1969 decided on October 17, 1967, referred to. (iii) It is true that the Mysore Revenue Appellate Tribunal could not have cahcelled the permit of the appellant. Cancellation of the permit under s. 68F(2) of the Act, can only be done by the concerned R.T.A.-· but the R.T.A. in the present case, did not take action under s. 68F(2) ~i.tiaUy because of the pendency of the appeals before the appellate autho.. nties and because of -the stay orders issued by the High Court and this Court. However, the functions of the R.T.A. under s. 68F are merely ministerial and on this technical ground alone, the appellant cannot succeed. [569 E] ' _Satndard Motor Union Pvt. Ltd._ v. _State_ _of Kera/a and_ _Ors.,_ U969] 1 S.C.R. 464, discussed and distinguished. CivIL APPELLATE JURISDICTION: Civil Appeal No. 1167 of 1971. Appeal by special leave from the judgment and order dated August 10, 1971 of the Mysore High Court in Writ Petition No. 3244 of 1970. C. _K._ _Daphtary,_ _A. K._ _Sen,_ _S._ _S._ _Javali_ and _B._ _P._ _Singh,_ for the appellant. _Niren De,_ Attorney-General for India, _Shyamla Pappu_ and _I. Ra""1murthi_ for resj)ondent No. 4. ##### The Judgment of the Court was delivered by Hegde, J.-The appellant is a transport operator. He applied ~or and obtained a pennit from the I<..T.A._, Chitradurga for the inter-state route from Chitradurga in Mysore State to Srisaila in 564 SUPREME COURT REPORTS [19'73] l S.C.R. Andhra Pradesh, on January 18, 1964. Even before this permit was issued to him, lhe Government of Mysore had not;fied a draft scheme under s. 68(C) of the Motor Vehicles Act, 1939 (to be hereinafter referred to as the Act) providing for the operation of A the trunk routes by the State Transport Undertaking in the Bellary District. M.S.R.T.C., a State Transport Undertaking and other rival claimants objected to the issue of the permit in question - n. to the appellant but their objections were over-ruled by the RT.A., Chitradurga. Aggrieved by that order M.S.R.T.C. anJ other rival claimants took· up the matter in appeal to the Mysore State Trans .. port Appellate Tribunal. Meanwhile on April 18, 1964, the Government issued a notification under s. 68D(3) of the Act approving the draft scheme earlier issued by it. That scheme is known as _:::_ "Bellary scheme". One _oi._ the clauses in the scheme provides : _:::_ "The State Transport Undertaking win operate services on all the routes to the complete exclusion . of their persons except in regard to the portions of the interdistrict routes lying outside the Bellary District. The existing permit holders on inter-state routes, may continue to operate such inter-state routes subject to the condition that their permits shall be rendered ineffective bv the competent authority for the over-lapping portion in the District of Bellary." This scheme was published in the official,gazette on May 7, 1964. Thereafter M.S.R.T.C. applied for permits under s. 68F on July 28, 1964 for the routes nationalised. under the "Bellar} scheme". Till the.n the appellant had not obtained the countersignature of the concerned R.T.A. in Andhra Pradesh as required by s. 63 (1) of the Act for the inter-state permit issued to him. The appeal filed by M.S.R.T.C. was dismissed by lhe Mysore State Transport Appellate Tribunal on November 2, 196.1.. As against that order M.S.R.T.C. went up in appeal to the Mysore Revenue Appellate Tribunal on December 9, 1964. During the pendency of that appeal, the appellant obtained counter-signature3 of the concerned R.T.A. in Andhra Pradesh on June 23, 1965 for his iJlter-state permit. In June, 1967, the RT.A. Chitradurgn renewed the permit granted to the appellant on J3m1~· .. - ii>. !964. That renewed permit was duly c:·:.untersigned by the "'"e~rned R.T.A. in Andhra Pradesh. On July 30, 1970, the Mysore Revenue Appellate Tribtunal allowed the appeal filed by the M.S.R.T.C. and set aside the grant in favour of the anpel!:mt on the ground that the appellant not being an "existing permit holder" as contemplated by the scheme is riot entitled to operate in the route in question, The appellant challenged that decision before the Mysore High Cou!1t by means of a writ petition under I> E F G H D. M. THIPPESWAMY _v._ APPELLATE TRIBUNAL _(Hegde,_ _J.)_ 565 A Art. 226 of the Constitution. That petition was dismissed by the Mysore High Court on August 10, 1971. Thereafter this appeal was brought after obtaining sIJ$lCial leave from this Court. Mr. A. K. Sen, appearing for the appellant challenged the correctness of the decision of the High Court on various grounds. He contended that the "Bellary scheme" was implemented only B on July 1, 1965 when the permit asked for by the M.S.R.T.C. was granted. But before that permit had been granted, the ap· ;pellant's permit has been counter-signed by the concerned RT.A. m Andhra Pradesh. Hence he must be held to be an "existing permit holder on inter-state route" as contemplated in the c\iflise quoted above. According to him a scheme notified under C s. 680(3) of the Act cannot be considered to have become effective until the R.T.A. passes appropriate orders under s. 68F ( 2). His next contention was that under the "Bellary scheme'', there was only a partial exclusion and not total exclusion. Therefore all that the R.T.A. could have done under s. 68F ( 2) was to make his permit from Bellary Town to Bellary - Border ineffective and not to cancel his permit. His last con,ention was that in any event, the Mysore Revenue Appellate Tribunal could not have cancel!ed his permit. Let us now examine the correctness of these contentions. Section 68 ( C) provides : E F G H "Where any State '.ransport undertaking 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 _oi._ 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 exclu,ion, complete or p~rtial of other persons or otherwise, the State transpoort undertaking may prepare a scheme giving particulars of the nature 0f the services proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause eve1y such scheme to be published. in the official gazette· and also in su~h other manner as the State Government may direct." The next relevant section for our present purpose is s. 680(2) which says: "The State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representativ.£5 of the SUPREME COURT REPOR:rs (1973] 1 S.CR. State transpoort undertaking to be heard in the matter, if they so desire, approve or modify the scheme." Sub-s. ( 3) of s. 68 (D) provides : "The scheme as approved . or modified Ullder sub section (2) shall then be. published in the Official Gazette by the State Government and the same shall thereupon become final and shall be called the approved scheme and the area or route to which it relates shall _bt_ called the notified area or notified routt:. Provided that no such scheme which relates to any inter-state route shall be deemed to be an approved scheme unless it haa been published in the Official Gazette with the previous approval _ol_ the Central Govemunent." Herein we are not concerned with a scheme which relates to any inter-state route. Section 68F requires the concerned R. T.A. to issUe stage carriage permits to th.: State Transport Undertaking in pursuance of an approved scheme if that undertaking applies for the same, notwithstanding anything contrary contained in Chapter IV of the Act. Sub-s. (2) of s. 68F(2) as it stood at the relevant time provided : "For the purpose of giving effect to the approved scheme in respect of a notified area or notified route, the Regional Transport AU1!hority may, by order( a) refuse to entertain any application for the renewal of any other pepnit; (b) cancel any existing permit; ( c) modify the terms of any existing permit so as to ( i) render the permit ineffective beyond a specified date; (ii) reduce t4e number of vehicles authorised to be used under the permit; (iii) curtail the area or route covered by the permit in so far as such permit relates to tile notified area or notified route." The power of the R.T.A. under s. 68F(2) is merely ministerial. He has only to ..:arry out the directions contained in the scheme: As -observed by this Court in _Abdul Gafoor_ v. _State_ _of_ _Mysore(:_ _[1]_ _),_ that when a scheme prepared ·and published under s. 68(C) has been approved and an application has been made in pufsuance of the scheme and in the proper manner as specified (I) [1962] I S.C.R. 909 A B #### c D E F G H D. M. THIPPESWAMY _v._ APPELLATE. TRIBUNAL _(Hegde,_ J.) _567_ A in Chapter IV of the AC!, nothing more remains to be decided by the R.T.A. It has no option to refuse the grant of the permit In that decision this Court further laid down that when deciding what actiClll to take under s. 68F(2), the authority is ti.ed down by the terms and conditions of the approved scheme and its duty is merely to do what is necessary to give effect to the provisions B of the scheme: In _T. N. Raghunatha Reddy_ v. _Mwore State Transport_ _Authority(1)_ it was urged on behalf of the appellant-operator that the expression "existing perm;t holder" i.n cl. (d) of that scheme should be interpreted as if the scheme is ready on the date when orders made under s. 68F came into effect. ·Rejecting th2t contention this Court observed : lant was not an existing permit holder because he did not obtain his counter-signature till July, .1968". AJ?Plyin.e: the ratio of that decision to the facts of the present case, 1t is clear that the appellant was not Ml "existing permit h~lder" at any rate on July 28, 1964 when the M.S.R.T.C. ap· "It seems to us that this is not a correct way of interpreting the scheme. The scheme as approved, was published in the Government Gazette under s. 680(3) on January 25, 1968 and on March 1, 196 8, the My~ore undertaking applied under s. 68F (1) to operate buses from January 1968 or a later date. As held by this Court in _Abd"l_ _Gafoor_ v. _State_ _o.f_ _Mysore_ "when a scheme prepared and published under s. 68..C has been approved and an application has' been made in pursuance of the scheme and in the proper malll1ler as specified in Ch. IV, nothing more remains to be decided by the Regional Transport Authority and it has no option to refuse the grant of the permit" and "when taking action under s. 68-F ( 1) the Regional Transport Authority does not exercise any quasi-judicial function and ## ' ### c D E F G acts wholly in a ministerial capacity". It seems to us that even if the date .of publication may,not be the appropriate date-we do not decide that it is not an appropriate date-at least the date on which the transport undertaking apolies under s. 68F(l) for a permit must be the date with reference to which the expression ###### "existing permit holder"-must be interpreted. If this -is the crucial date, then it is quite clear that the appel plied for a permit for the route in question. In this view it is not necessary for us to. go into the question whether the scheme H can be said to have been imolemented on May 7, 1964 when the same was published in the Gazette after the i.pproval of the Government under s. 68D ( 3). [970] 3 S.C.R. 780. 568 SUPREME COURT REPOATS [19'73] 1 S.C.R. It was next contended that in view of the fact that the permit A had been issued to the appellant on January 18, 1964, we must hold that when on Jilly 28, 1964, M.S.R.T.C. applied for a pennit on the rnute, the appellant was an "existing pennif holder". We see no merit in this contention. Under the scheme the only persons whose pennits are saved are those "existing permit holders on the inter-state routes" and not all "existing permit h0lders". 11 A contention similar to the one urged before us was considered and rejected by this Court in Civil Appeals Nos. 1415-1443 of 1969 decided on October 17, 1969. Rejecting the appellant's contention therein this Court observed _:_ # • ##### .. "Mr. Chagla's contention is that in view of s. 63 ( 1) the appellants must be considered as existing pennit holders as the permits given to them continue to be valid. It is true that in view of s. 63 ( 1) on the basis of the pennits given to the appellants .for inter-state routes, they were entitled to operate in the routes concerned from the starting tenninus till the route reaches the borders of the Mysore State. In other words the inter-state permit given to them operated as intra state permits for a portion of the route to which they were granted till those pennits are countersigned by the concerned State or States. But that fact does not make the holders of those pennits as "existing permit holders on the interstate routes". Before they can be considered as existing permit hold.ers of · the concerned inter-state, they must not only have obtained a pen11it from the concerned -R.T.O. in. their home State, they must have also obtained the counter-signature of the concerned States. Until they obtained counter-signatures of these, they cannot be considered as existing permit holders of the concerned inter-state state routes." ##### c l) B F The question whether tile "Bellary Scheme" provides for the total exclusion of all operators on the nationalised routes or it merely provides for partial exclusion is, in our opinion, wliolly irrelevant. Al! that we have to see is what thl) scheme says ? Whom does it exclude ? It is quite plain from the language of G the clause referred to earlier that all operators excepting those mentioned therein are excluded from the nationalised routes. To the general exclusion made therein, there are two exceptions. 1be first one .relates to inter-district operators and the second to existing permit holders on inter-state routes. The appellant does not claim to come under the first exception. For the reasons already H mentioned his case is not covered bv the secood· exception. We are unable to agree with Mr. A. K. Sen. Counsel for the appellant that the decision of this Court in _Standard Motor Union Pvt. Ltd._ D. M. TIUPPESWAMY _V._ APPELLATE TRIBUNAL (Heg~, _J.)_ 569 A v. _State_ _of Kerala_ _and ors.(_ _[1]_ _)_ is of any assist:mce to the appellant. ll ##### c D E F G H In that case this Court was called upon to cons:der a s-.:heme framed under the Act read with rule 3 of the Kerala Motor Vehicles (State Transport) Rule~, 1960. The rule in question divided the scheme broadly into two categories ( 1) complete exclusion schemes and (2) partial exclusion schemes. The question for decision in that case was whether the scheme before this Court was a complete exclusion ~heme or a partial exclusion scheme. That question has no relevance for our present purpose. _As_ mentioned earlier all that we have to see is whether the appellant can be considered as an operator holding an existing permit on inter-state route at the relevant time. For the reasons already mentioned we do not think that he was one such. Mr. Sen is right in his contention that the modification or cancellation of the permit granted, for the purpose of giving efl'cct to an approved scheme must be effected by the. concerned R.T.A. It is true that in this case the RT.A. was not approached to cancel the permit granted to the appellant. But even after the M.S.R.T.C. applied for a permit fot; the route in question, RT.A. renewed the permit granted to the appellant. It was impermissible for it to do so. The appellant is right in his contention that the validity qf the renewal was not before the Mysore Revenue Appellate Tribunal. The appeal )hat was before that Tribunal was one challenging the original grant. Hence technically Mr. Sen is right in his contention that the Tribm1al could not have done what the R.T.A. was required to do. But as mentioned earlier the functions of the R.T.A. under s. 68F are merely miinisterial. _It was bound to carry ou~ the directions given in the scheme. But the R.T.A. evidently did not take action under s. 68F(2), initially because of the pendency of the appeals before the appellate authorities and thereafter he could not take action because of the stay order issued by ·the High Court during the prndency of the writ petition anrl by this Court after the appeal was ~led. We see no purpose in allowing this appeal on a purely techmcal ground as that course cannot give any relief _tq_ the appellant. The R.T.A. is bound to cancel his permit in' pursuance of the scheme. For the reasons mentioned abpve this ·appeal fails and the same is dismissed. But in the circumstarices of this caso we make no order as to costs. _S.<;._ _Appeal_ _dismissed_ 0) [1969] _1_ S.C.R. 464 .. 2-Ll52SupCij73