S. Shamshuddin v. State of Karnataka & Ors.

.... .. '1 1 '· A B. (l E 522 S. SHAMSB!JDDJN & ORS. :ETC _v._ STATE OF KARNATAKA & ORS. _April 18;_ _1984_ [D.A. DESAI AND RANGANATH'MrsRA, JJ.] _'Niotor VehfcJes Act, 1939 as 'amended_ _by Mo'ior_ _Vehicles_ _(Amendtfient)_ _Act 56of1969 s;63(7}-lnterp_ retatio~ _of._ _Quota of 50_ _all India_ to~r{st _permits_ - _fixed by Central_ Gov~rnment _by No(ijication No.S.0.22 dated_ D~cember _19; 1977-_ ·. _Whether valid._ Pow~r _!o.f{x_ quot~ _and power to.grant all_ _India pernzits-Whethe.r_ ~eparable. _The expression_ _In_ _res pee_ _t_ _of such .itumber of tourist vehi'c.les as the_ •. _Ceiltra/.-GovertunetZi tii:iy,_ _in. respect of that_ State~ _sj;ecify in this behalf-Whether._ _severable._ In order to promote tourism, the Motor Vc.hicles Apt, 1939 was amended by. the Mot.or Vehicles (Amendment) Att _56_ of '1969. Suh·s."(7) . which was introduced .in· s. 63 ~Y thee.Amending Act pr.ovided that Ilo!withstanding anything conta.ined in Sab·s·. (l} but s•Jbj~~ct to- aOy rules that may be made 1:1nd'er this Act, any State_ Tra·nsport,Aut\1.oritY may, for th~ purpose of ' promotin& touTiam, grant permits valid Jor _th<! -whole or any. part of India,. in respect of sUch number of t,o-irist Vehicles ·as ~he Central _Government inay, ' in -resPect. of that _State, specify in 1.liis behalf. In exercise Of this eoWer the ·Central Government by its notification No. S. ·o _ -22 dated pecemb>!r 19, 1977 jjxed -a quota of 50 as· the" an. Indi_a ·tourist p:ermitS for each _State. _Tlle petitioners challenged this quota as· discriminatory and v olaiive of Art. 14 of the Constitution. - DismiSsing the writ petit;ons, HELD :- It appe~rS that.s. ti3 (7} was introduced after ascertaining the needs of developing tourist ttade. The Central Government fixed q·uota of _50:_ permits -_for _each s'tate. It may _be that a smaller State like .ltimachal Pradesh or Jamm:u and Kashmir [nay have -larger number of places of .tourist interest. EqUally area-wjse the biggest State Madhya Pradesh:rnay have few spOts' Of tou{ist intere~t. Therefore, Unless an t~e relevant facts are placed on· record _which may point to the invidiousness of _;,:_ fiXing .a flat cj_uota, _the Petitioners Contention th:it the quo{a, is arbitray ari~ viOlative of Ar_t. 14 of the Constitution has no force. [5280-F, 525E) #### . r\ J. . .. ~ .. + . s. S\IAMSHUDDlN _v._ KARNATAKA _(Desai,_ _J.)_ 523 th~ Patlianient enact.ed Stib-s_. (7) of s. '63 conferring an enabling power or State Transport Authority ·to grant a permit valid·for _the whole Of India which but ftj-r 'the provfsion co~tained in Sub-s. (7) of s. 63 it was not en.titled to · grant -and that th_is power to grant was subject to the conditirn ·that the Central Government will ·specify the quota. Therefore. the. quota is not severable,frOm the power to grant the permit. ·Assuming that _the quota is iS Severable fro_in -the enabling .Provision, no materia~ .has been pla;;ed on record to point out the needs of eacll State, the places of tourist intf!rest, the influx of tourists, ihe facility for their boatding and lodgin·g_ and the con<f:ition · of roadS-in resPect of ea~a State. In the ·absence of this fact s!tuation, the petitioners' submission that the'. expression, in respeCt of such tiumber of tourist vehicles as the ·Central Go~rnment may-, in respect of that State., specify in this behalf' is severable and therefor'e ~he enabling pai"t of sub-s. (7)_ will permit St3.te Transport Authority in each State to grant all India tourist Permit keeping- in "'.iew the ·need· of the tourists and the needs of the State, cannot be examined on merits. [527H, 528A-B, 527G] . ' It is reCO!llniended:that' in ·view or the· vast expanding tourist trafficthe Central Governme,Qt mus.t undertake an exercise _·within, a reasonable .time and .at regul~f intervals to re-evalute the quota of all India tourist permistS to keep pace with devetOping notion of attracting tourists. [529C-D] __:_ _S.S. Java/i, Mr. 'fJ.P._ _Singh, Ran1it Kumar, Shanti Bhushan,_ _K.R. Nagaraja,_ _K.S,_ _Hegde, S.K. Prasad, K.N. Bhatt, Ms. Madhu_ _Mulchandani,_ . _RJJ._ _Datar, N.K._ _Sharma, P.N. Rama/ingam,_ _R. Ramachandran, V.K. Verma,_ _K.G._ _Blltgat, Addi. So/._ _General,_ _M.N. Shroff; P.K. Pillai, Mrs._ _H._ _Wahi,_ _M. Veert'ppa,_ _SwtlflClj_ , _Kaushal, Vineet Kumar, S. Chatterjee_ and _.l.R. Das._ The Judgment of the Court was delivered. by DESAI,. J.Th~ intrepid _albeit_ affluent transport operators again suc.ceeded rn their none-too-legal . designs · to operate vehicles not by obtaining statutory permits but to put it mildly by abuse of the court's process. - · A B c D ORIGINAL JuRISDICl:ION ; Writ Petitions Nos .. 13033-38 13650-52, 13197, 13355-58.-· 13389, 13393-97; 13003:_08; 13488,13654-67, 13850-.58, 13790 to 13801, 13836-49, of 1983, 8-22,24-30, 34-35, 126· 130 arid 223-26 of 1984 E (Under artick 32 of the Constitutibn of India) Advocates for the apJ]earing·parties : F G H ... 524 SUPREMB COURT REPORTS _[1984] 3 S.C.lt._ A B c D E F G ' .· B By a judgment . rendered by this Court in _S. Kannan and_ . _Ors:_ v. _&cretary, Karnataka State. Road Transport Authority etc.'_ _[1]_ _\_ . ori August 29, 1983, this Court held that grant ofa temporary allIndia tourist permit is forejgn to the. very concept ofall-lndia .tourist permit as envisaged by sub-s.(7) of Sec.63 of the Motor Vehicles Act.' 1939 and accordingly an unusually large number of temporary all-India tourist permits obtained persuant to tl1e interim relief granted by this Court were. set at naught. Some of the present petitiOners were · directly parties to t.h.e petitions disposed of by that judgment. Indefatigueable as ·they are, they again approached. this Court by a camouflage of challenging the validity of quota of fifty such permits fixed by the Central Govern.men! in respect of all·Il)dia tourist permit for each State as per Notification No. ~.0; 22 dated December 19, 1977 as als9. failure to fill-in the • vacancies by the State Transport Authority in Karnataka State.tq the extent of the s.anctioned quota. The challenge was a clever. camouflage, .the sole,. underlying motive. beijj.!i io obtain some interim relief by which again· temporary permits ·in complianc·e wiih the interim reli<:f granted by .this Court may be obtainad and the impermissible trade· being carried on without a break. To unravel this plot engineered by the petitiouers, it may be mentioned . . that ·even though the· Court by the judgment in the case of - _S._ _·Ka1111a1i_ & _Ors._ rendered on August 29, 1983 set at naught all temporary all-India tourist permits· obtained as a ~onsequence. of the interim relief granted by thi~ Court, .at the special request of some of the petitioners, t!ie Court ·keeping in view the investment . - - . ~ made by the petitioners in providing tourist vehicles continued the interim reHef which kept operative the temporary permits till December 31, 1983. · TlJe present petitions were filed somewhere in No~el11ber, ·1983. By the order dated No~mber 23, 1983 notice directed to be issued both ol1.the main petition as well as on the . stay application was made returnable on.December 6, 1983. The petitioners Were in no .,rr-;' to snatch. the· interim relief because the .. orde~·made earlier had infused life into their so-called temporary·permits and kept them operative upto December .31, 1983. On· December 16, 1983. in the renewed atteflip! the Court granted interim relief to the effect that those operators of vehicle~ who had held all-India tourist permit on o·ctober 23, )983 and who were plying theiCvehic]es shall be permitted to ply the ¥ehides until April 30, 1984. Jt is necessary to p9int out that the peti!ioners who obtained this interim relief were plying thefr vehicles on Octob,r ' (!) f1984J I S.C.C. 375. s. SHAMSHUDDIN _v._ KARNATAKA _(Desai,_ _J.)_ 525 23 1983 under an earlier interim relief which bad exhausted itself ' . . ·on. August 29, 1983 and · this very relevant aspect which would be · determinative of the 'issues involved in the matter appeared not to have . been brought even to the notice of the Court which granted interim relief. Tlie respondents appeared and pointed out the facts her;in~ above delineated with the result that the petitions were set down for hearing on March 23, 1984. ' + The mere enumeration of the contentions raised by Mr,· - Shanti.Jlhush·an shows. that the first and. the third contentions are almostidentical except that th.e fact situ.ation with regard to tbe e~isting number·of vacancies in the sanctioned quota of all-India tourist permit for Karnataka State is in controversy. It would have been necess~ry to probe in depth the statutory duty or State Transport ~utbo~1ty on whom . power is conferred by Sec.63(7) to i.irant permit vahd for tpe whole or any part ofindia for th~ Mr. Shanti Bhushan who led on behalf of 'the petitioners ,. . - ' .I raised three contentions. It was urged that even though a quota of 50 tourist permits has been sanctioned by the Central Govern- · ment for each State, the State of Karnataka has not utilised the quota to the maximum and there are either 25 or 14 ' vacancies which have been kept unfilled for a long time and therefore, a mandamus must be issued directing the State Transport Authority, Karnataka to perform its statu.tory ·duty by considering the applicatio)ls rec"eived for all-India tourist permits and dispose of the same within a reasoflable time. It was next contended that if the object underlying the enactment . .of Sec.63(7) was to promote tourism and facilitate movement of tourists, a flat quota of 50 · permits for each State completely ignori~g the needs of the Stat_,, capacity to cater to the tourist traffic, significant number of pl~ces of tourist interest, _ihe_ local population and other relevant factors, ls vio.lative of Art. 14 of the Constitution and the Central Govern A B c D E F G H ment must be directed to refix the quota. The last submission specifica1ly referring to the State Transport Authority of Karnataka was that it has failed to perform its statutory ·duty by not granting all-India tourist permit. in existing 14 vacancies according to the State Transport Authprity and . 25 vacancies according to. the petitioners, and that hy a mandamus the State Transport Authority should be directed to examine an 'the applications received for the same and to grant permits and thereby perform its statutory duty. A c .D _1_ ,Q .; ### _526_ SUPREME COURT REPORTS ( 1984] 3 s.C.R, purpose of promoHng tourism. Bu~ we·. are spared this exercise because Mr. Swaraj Kaushal, learned counsel who appeared for the State of Karnati!ka undertook that the State Transport Autho', rity would dispose of all applications pending before it for a permit· as contemplated bj Sec,63(7) by April)O, · 1984. He also stated that the State Transport Authority . of Karnataka State wiH as far as possible im in all the vacaucies if sufficient number of applica' tions are pending before it and there are eligible ·applicants among them. We leave it. to the State Transport Authority to determine how mariy vacancies at present exist and fill ih the same by cons.idering the . applications pending with it for the type of permit as contemplated by Sec.63(7!. . Th.erefoie; there remains one contention to be examined by us. It was urged that Regional Transport Autho.rity can grant a . stage ·carriage·or a contract carriage permit, as the case m.ay be, valid for operation in the region and .wheri countersigned by the State Transport Authority valid for c~i:ttiguous regions \n the same State. A necessity was felt that tourist ·vehicles having an inter. . State and intra-siate operational area throughout the country. may . be l.icensed by all-India tbl)rist permits Go that facility of easy .road· · transport is available to both t\Je domestic and foreign tourists. To achieve,this end and with a vi~w to promoting tourism, sub-s.(7) was introduced in Sec. 63 ofMotor Vehicles A.ct,. 1939 by Motor Vehicles (Amimdment) Act 56 of 1969 which reads as under: - · ' . "63(7) ; Notwithstanding anything contained in subsection (!) but . subject to any rules that may be made under this Act, ·any State Transport Authority may, for the purpose of promoting tourism, giant permits · va]jd for the ·whole or any part of India, in · respect of s~h number of tourist vehicles .as the . Central Government may, in respect of.that State, specify in this behalf, and the provisions ·• of Sections 49, 50, 51, 571 58, 59, 59-A, 60, 61 and 64 shall, as far as may be, apply in r~lation to. such permits : Provided that preference shall be given to applications for permits from (i) the India Tourisn;i Development Corporation ; (ii) a State Tourism Development Corporation ; (iii) a Slate Toiuis.t Department; ##### ·' I -1. ###### + s. SHAMSHUDDJN _v._ '.KARNATAKA _(Desai,_ _J.)._ 527 (iv) such operators· of tourisr cars or such travel agents as may be approved in this behalf by the Ministry of the Central Government dealing in tourism." The power to grant permit valid for the whole or any part of India was conferred on the State Transport Authority of each State. To guard against the big fish not swallowing the smaller one, Parliament took care to statutorily provide that the Central Government will have power to fix. quota of such permits .that can be granted by State Transport Authori°ty in each State. In exercise of this power, the Central Government has fixed a·quota of 50, euphemistically ·called, alHn.dia tourist permit, but statutorily described as permit valid for whole of India for each State by the Notification No·.s.~.22 dated December 19,. 1977. Mr. Shanti Bhushan pointed out that the large and. sprawling States like Maharashtra, Madhya Pradesh, Karnataka, Tam.ii Nadu and Uttar Pradesh each have · a quota of 50 permits and also Assam, Nagaland, Manipur, etc. which are ~cographically and populationwise small States have the same quota. .It was urged thal·this equal treatment of unequals· is clearly arbitrary and vio· lative of Art.14. It was s.ubmitted that quota. ca'n be fixed with a view to promoting tourism by keeping in view the population, places of tourist interest, facility for . tourist halt, conditioqs of roads etc. ·and that having ·not been done the fixation offlat quota of 50 permits for each. State must be struck down· as discrimina·. tory and arbitrary. While hearing this argument, a question was posed to Mr. Shanti ·Bhushan that if Jhe ·quota of 50 permits for each State is str.uck down, not a sing]~ . Siate Transport Authority in. any State - will be entitled to grant a single tourist. permit because fix'ation of quota. is an integral part of .Sec. 63(7). Mr. Shanti Bhushan · urged .that the ·expression in respect ·of such number of tourist vehicles as the Central G.overnment may, in respect of that State, specify .in this behalf is severable and therefore, the enabling part of Suh-s.(7) will permit State transport Authority in each State to grant the all-India tourist pe.rmit k~eping in view the needs of the tourists and . the needs of the State. We are not. persuaded to accept this subl)lission. The Parliament enacted silb·s(7) conferring a.n enabling power op State Transport Authoritr ·A E F A B ·c p E F G Mr. Javali, learned counsel iifsome of the petitions' urged that notification No.S.0.22 . i;lated, December,19, 1977 specifying, the number of tourist vehicle of all States at 50 each suffers froltl the vice of non-application of· mind. It was said that the notification does not disclose as to . what relevant factors were taken into consideration for fixing the. quota. The contention thus - raised is the same contention raised by Mr. Shanti Bbtlshail .under a diffe~ent garb and must'be rejected for the same reasol]j. It.was urged that the Central Government should be asked to refix th~ .quota keeping·. . . . in view the chanlle in the steep rise in 528 SUPREME COURT REPORTS. [1984) 3 S.C.R. to. grant a permit valid for the wholeof ·India which but for the ptovision contained in sub-s.(7) of Sec.63 . it was not entitled to grant .and that this power to grant was. subject to the condition that the, Central Government ·will specify the quota. Therefore, the quota is not severable. from the .Power .to grant ·the permit. ' Assuming· that the quota is severable from the enabling provi;\on, no material has been placed on record to point out the needs .of each State, the places ··'oCtbririst, 'interest I.he . influx· of . , tourists, the facility for tbeir-boardin,g and lodging and the condition . of roads _in:_ respect of each State. In the absence of this fact . situation,. the contention cannot be examined on rrierits. . rt.may be point~d out that Sec. 63-A envisages s'etting ·up of an Inter-State Transport Commission for the purpose.of developing, co-ordinating . and regulating the operation of transport vehicles in respe'ct of any area or route common to two or more States (hereinafter referred· to as inter-State region) and perform, ing such other functions as may be prescrib~d under sec: 63-C. It was not made clear whether the Inter-State'Transport Commission has b.een set up but it appears that Sec. 63(7) wai; infroduced after ascertaining the peeds of developing tourist trade. The Central Governnient fixed quota of _50_ permits for each State. It may be that a smaller. State like Himachal Pradesh or Jammu and' Kashmir may have larger number of places of tourist interest. Equally area-wise the biggest State Madhya Pradesh.may have few spots of tourist .interest. Therefore, unless all the relevant facts are placed ·· on record, which. may point to. the invidiol)sness of fixing a flat · quota, the contention of Mr. Shanti Bhushan does not commend to us and it may be rejected; -· s. SHAMSHUDDIN _v._ KARNATAKA _(Desai,_ J.} 529 A the influx of tourists from 1977 to 1984. It was submitted that with the rapid increase in tourist traffic, cheaper, and speedy air transport and a new culture· of augmenting knowledge ·by visit to places of historical interest has increasi;d piimifold tourist traffic. It was urged that tourism is ·a well-recognised mode for earning foreign exchange badly n.eeded for economic developmeni. It was B then urged that better facilitities would attract more tourists. It was urged that a period of ?years provides· a water-shed re-e,valuating · the demands of time and needs ·for augmenting the quota fixed way-back in December, 1977 .. There is considerable force in this 'submission. We ·are of the opinion that iri view of the fast expan<l ing tourist traffic: the Central Government must undertake an C exercise at regufar intervals to re-evaiuate the quota of alHndia: tourist permits to keep pace 'with deve!vping notion of attracting tourists. We therefore, recommend to the Central Government to undeitake. this exercise within a reasonable time. As we find no merit in a~y of the contention, all petitions . D fail and are dismissed with costs. H.S.K. _Petitions dismissed._ ' ' ' .