Civil Appeal Nos
524 to 539 of 1961
Appeals by special leave from the judgment and order dated July 5 1961 of the Patna High Court in Misc
Judicial cases Nos 670 to 675 of 1959
WITH Civil Appeal No 434 of 1961
Appeal by special leave from the judgment and order dated August 8 1960 of the Patna High Court in Misc
Judicial Case No 334 of 1960
AV Viswanatha Sastri and BP Jha for the appellants
in C As
534 to 538 and 434 of 1961
BP Jha for the appellant in CA No 539 of 1961
Lal Narain Sinha LS Sinha and SP Verma for the respondents
December 1
The Judgment of the Court was delivered by HIDAYATULLAH J
The judgment in Civil Appeal No 534 of 1961 will dispose of Civil Appeals Nos 535 to 539 of 1961
In these appeals private operators of omnibuses challenge the orders of the Appeal Board of the State Transport Authority by which it set aside the renewal of the permits on certain routes granted by the South Bihar Regional Transport Authority Patna
The appellants held 730 previously stage carriage permits over certain routes and which were due to expire in December 1958 or in January 1959
They had applied for renewal of their permits under section 582 of the Motor Vehicles Act
Under a scheme framed and notified on July 8 1957 vide Notification No P 2 20357T4794 the route Gaya to Khijirsarai was notified under section 68D of the Motor Vehicles Act
The Rajya Transport Bihar was exclusively allowed to operate on that route
In Civil Appeals No 535 to 538 of 1961 the Rajya Transport Bihar filed objections against the renewal of the permits
In Civil appeals Nos 534 and 539 of 1961 no objections were filed
The route Gaya to Khijirsarai which may be called conveniently route AB  formed part of routes on which the appellants were operating and in respect of which they had asked for renewal of their permits
The south Bihar Regional Transport Authority however renewed the permits of the appellants holding that route AB  was different from the routes for which renewal was demanded
Against the orders of the Regional Transport Authority appeals were filed by the Rajya Transport Bihar in all the cases that is to say in those cases in which the Rajya Transport Bihar had objected and those in which it had not objected
While these appeals were pending the State of Bihar acting under section 3 of the 64 of 1950 notified on April 20 1959 as follows No RT Cor
159 3090 In exercise of the powers conferred by section 3 of the Road Transport corporation Act 1950 LXIV of 1950 the Governor of Bihar is pleased to establish with effect from the 1st May 1959 a Road Transport Corporation for the State of Bihar to be called the Bihar State Road Transport Corporation 
731 2
The said Corporation shall with effect from the said date exercise all the powers and perform all the functions which are at present being exercised and performed by the Rajya Transport Bihar
By order of the Governor of Bihar
K B Sharma Dy
 At the hearing of the appeals the Government Advocate Mr Lal Narain Sinha appeared for the Road Transport Corporation
Objection was taken to the competency of the appeals on two grounds
In those cases in which the Rajya Transport Bihar had not objected to the renewal of the permits before the Regional Transport Authority it was contended that it had no locus standi to file appeals
In those cases in which it had so objected the ground was that the Road Transport Corporation could not in law represent the Rajya Transport Bihar in the appeals filed by the latter
On merits it was contented that the order of the Regional Transport Authority that route  AB  though part of the routes for which renewal was asked was a different route and the State Corporation had an exclusive right to ply omnibuses on routes AB  did not affect the rights of the appellants to ply their omnibuses on routes which were entirely different
The Government Advocate contended that on the analogy of the principle underlying O 22 Re 10 of the Civil Procedure Code the Road Transport Corporation on which devolved the powers and functions of the Rajya Transport Bihar could prosecute the appeals
He also contended in the alternative that he was representing also the Rajya Transport Bihar and that the appeals were not defective
The Board accepted the argument of the Government Advocate and set aside the orders of renewal passed by the Regional Transport Authority
The appellants then filed petitions 732 under articles 226 and 227 of the Constitution challenging the order of the Board on many grounds
The High Court by its judgment dated July 5 1961 dismissed all the petitions
In the order under appeal the High Court considered the competency of the appeals and held that the Rajya Transport Bihar was competent to prosecute the appeals before the Appeal Board
In dealing with the question whether the Appeal Board was entitled to interfere with the order of the Regional Transport Authority at the instance of the Rajya Transport in those cases where the Rajya Transport had not filed objections under the Motor Vehicles Act the High Court held that it was not necessary to express an opinion on the correctness of the argument because the Regional Transport Authority was not competent to grant a renewal inasmuch as such a grant was a direct violation of the scheme approved by the State Government and published in the Official Gazette
On the merits the High Court was of opinion that under section 68F2 c iii the Regional Transport Authority could curtail the length of the route covered by the permit and exclude the portion which overlapped a notified route
The present appeals have been filed against the order of the High Court with the special leave of this Court
These appeals thus fall into two groups
In one group are Civil Appeals Nos 534 and 539 of 1961 and in the other are Civil Appeals Nos
535 to 538 of 1961
In the former the grant of renewal of the permits has been made without any objection and in the latter in spite of the objections filed by the Rajya Transport
The competency of the appeals before the Appeal Board is involved in both the groups though on different grounds
The answer to the different objections is however the same
733 In Abdul Gafoor vs State of Mysore the effect of notifying a scheme was considered by this Court and it was there stated that when a scheme has been notified under Chap
IVA of the Motor Vehicles Act and an application is made for the grant of a permit on a route notified under the scheme by a private operator the Regional Transport Authority has no option but to refuse the permit to the private operator if the State Transport Undertaking has either applied for a permit or has already been granted one
In all the present cases the State Transport Undertaking had already been granted a permit over route AB  and if the private operators that is to say the appellants were not entitled in law to the renewal of their permits for routes which embraced also route AB  then the Regional Transport Authority could not but refuse to renew the permits
It was observed in Abdul Gafoor s case that the duty of the Regional Transport Authority was merely mechanical and that it was required to take note of routes which had been notified and to adapt its orders so as to be in conformity with the notified scheme
In view of the fact therefore that the scheme had been notified and route AB  had already been granted to the Rajya Transport andor the State Transport Undertaking the Regional Transport Authority was incompetent to renew a permit over a route embracing route AB 
The Regional Transport Authority not having done its duty under the law the Appeal Board was entitled when the record was before it to revise the order of the Regional Transport Authority even if the appeal was incompetent in view of the vast powers of revision under section 64A
That section omitting the provisos reads The State Transport Authority may either on its own motion or on an application made to it call for the record of any case in which an order has been made by a Regional 734 Transport Authority and in which no appeal lies and if it appears to the State Transport Authority that the order made by the Regional Transport Authority is improper or illegal the State Transport Authority may pass such order in relation to the case as it deems fit The High Court came to the conclusion that it should not interfere in its discretionary powers under articles 226 and 227 with the order of the Appeal Board because even if the appeal for some reason was incompetent the Appeal Board had the record before it and gave effect to the correct legal position arising from a notified scheme
The same view was expressed also in Samarth Transport Co vs Regional Transport Authority Nagpur
In our opinion we should not interfere on this ground either
In this connection the difference between the two sets of cases arising from the fact whether the Rajya Transport Bihar had objected or not completely disappears
We are now concerned with the merits of the contention that where the scheme notifies as a route a part of a larger route operated by a private operator the two routes must be regarded as different and the private operator cannot be prevented from running his omnibuses on that portion of his route which is a different route although notified
Reliance is placed upon a decision of the Privy Council in Kelani Valley Motor Transit Co Ltd vs Colombo Ratnapura Omnibus Co Ltd There the Privy Council was concerned with two Ordinances promulgated in Ceylon intituled the Motor Car Ordinance No 45 of 1938 and the Omnibus Service Licensing Ordinance No 47 of 1942
By the first schedule para I of the latter Ordinance it was provided that if applications were made by two or more persons for road service licences in respect of the same route preference should be given to a an 735 application from a company or partnership comprising the holders of all the licences for the time being in force under the Motor Car Ordinance No 45 of 1938 authorising the use of omnibuses on such route and b an application from a company or partnership comprising the holders of the majority of the licences referred to in a above
Section 7 sub section 1 provides The issue of road service licences under this Ordinance shall be so regulated by the Commissioner as to secure that different persons are not authorised to provide regular omnibus services on the same section of any highway Provided however that the Commissioner may where he considers it necessary to do so having regard to the needs and convenience of the public issue licences to two or more persons authorizing the provision of regular omnibus services involving the use of the same section of a highway if but only if a that section of the highway is common to the respective routes to be used for the purposes of the services to be provided under each of the licences but does not constitute the whole or the major part of any such route The real question in the case was whether the appellant there could take into account for the purpose of the first schedule six omnibuses which had been licenced for the route Panadura to Badulla via Colombo and the low level road
Panadura is 16 miles along the coast to Colombo and thence from Colombo to Ratnapura is 50 miles and from Ratnapura to Badulla a further 80 miles
It was clear that the route from Panadura to Badulla was not the same or substantially the same route as the route Colombo to Ratnapura but if a licence for an omnibus on the route Panadura to 736 Badulla was one authorising the use of the omnibus on the route Colombo to Ratnapura then six omnibuses plied by the appellant could be taken into account to turn the scale between the parties
Sir John Beaumont in expounding the meaning of the word route observed as follows If route  has the same meaning as highway  in the Ordinance this argument must prevail since admittedly an omnibus running on the highway from Panadura to Badulla will pass over the whole of the highway between Colombo and Ratnapura but in their Lordships  opinion it impossible to say that route  and highway  in the two Ordinances are synonymous terms 
A highway  is the physical track along which an omnibus runs whilst a route  appears to their Lordships to be an abstract conception of a line of travel between one terminus and another and to be something distinct from the highway traversed
 This distinction between route and road is relied upon by the appellants to show that the notified route which we have called AB  was a different route from the routes for which renewal of permits was demanded even though route AB  might have been a portion of the road traversed by the omnibuses of the appellants plying on their routes
 The distinction made by the Privy Council is right but it was made with reference to the words used in the Ordinances there under consideration
The question is whether a similar distinction can be made in the context of the Motor Vehicles Act
Mr Viswanatha Sastri appearing for the appellants took us through sections 42 to 57 of the Motor Vehicles Act and drew our attention to those in which the word route has been used contra distinguished from the word area and contended that everywhere the word route is used in the sense of a notional line between two 737 termini running a stated course and is used in contradistinction to what may be conveyed by the word area 
In Kondala Rao vs Andhra Pradesh State Road Transport Corporation this court in dealing with the scheme of the Motor Vehicles Act declined to make any such distinction between route and area
This Court speaking through Subba Rao J observed at p 93 Under section 68C of the Act the scheme may be framed in respect of any area or a route or a portion of any area or a portion of a route
There is no inherent inconsistency between an area  and a route 
The proposed route is also an area limited to the route proposed
The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area within the meaning of section 68C In any event under section 68C it is provided that a scheme may notify a route or an area or a portion of a route or a portion of an area and the exclusion of the private operators from the whole route or the whole area or a part of the route or a part of that area as the case may be may be either complete or partial and under section 68F2 c iii the Regional Transport Authority may modify the terms of any existing permit so as to curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route 
This means that even in those cases where the notified route and the route applied for run over a common sector the curtailment by virtue of the notified scheme would be by excluding that portion of the route or in other words the  road  common to both
The distinction between  route  as the notional line and  road  as the physical track disappears in the working of Chap
IVA because you cannot curtail the route without curtailing a portion of the road 738 and the ruling of the Court to which we have referred would also show that even if the route was different the area at least would be the same
The ruling of the Judicial Committee cannot be made applicable to the Motor Vehicles Act particularly Chap
IVA where the intention is to exclude private operators completely from running over certain sectors or routes vested in State Transport Undertakings
In our opinion therefore the appellants were rightly held to be disentitled to run over those portions of their routes which were notified as part of the scheme
Those portions cannot be said to be different routes but must be regarded as portions of the routes of the private operators from which the private operators stood excluded under section 68F 2ciii of the Act
The decision under appeal was therefore correct in all the circumstances of the case
This leaves over for consideration Civil Appeal No 434 of 1961
There the question which arose was decided in the same way in which we have disposed of the other appeals on merits
Ramaswami CJ and Kanhaiya Singh J referred to an earlier decision MJC No 354 of 1960 decided on May 13 1960 given by the Chief Justice and Chaudhuri J in which they had applied the Privy Council case and made a distinction between a route which was longer than the notified route though running for part of the way along the notified route and the notified route
In the judgment from which Civil Appeal No 434 of 1961 arises the learned Chief Justice has declined to follow his earlier ruling which he considers was given perincuriam because the provisions of section 68 F2ciii of the Motor Vehicles Act were not taken into account
After considering the matter in the light of that section the Divisional Bench has reached the same conclusion as we have and along almost the same line of reasoning
In view of what we have said in Civil Appeal No 534 of 1961 Civil Appeal No 434 of 1961 must also fail
739 In the result the appeals are dismissed but in the circumstances of the case we make no order about costs
Appeals dismissed


Summary:
Under a scheme framed and notified under the Motor Vehicles Act a certain route was notified under section 68D of the Act and the Rajya Transport Bihar was exclusively allowed to operate on that route
The said notified route formed part of routes on which the appellants were operating and in respect of which they had asked for renewal of their permits
The Rajya Transport Bihar filed objections against the renewal of the permits in some cases but in other case no objection was filed
The question which arose for decision was whether the permits of the appellant could be renewed by the Regional Transport Authority
The appellants contended that as the notified route formed part of a larger route operated by a private operator the two routes must be regarded as different route and the private operator could not be prevented from running his omnibuses on that portion of his route which was a different route although notified
 Held that as decided by this Court in Abdul Gafoor s case the Regional Transport Authority had no option but to refuse the permit to the private operator if the State Transport Undertaking had either applied for a permit or had already been granted one
Abdul Gafoor vs State of Mysore AIR 1961 SC 1956 followed
If the Regional Transport Authority did not do its duty under the law the Appeal Board was entitled when the record was before it to revise the order of the Regional Transport Authority under its revisional powers as provided in section 64A of the Act even if the appeal was incompetent
Samarth Transport Co vs Regional Transport Authority Nagpur   followed
729 In the present case the appellants were not entitled to run over those portions of their routes which were notified as part of the scheme
Those portions could not be said to be different routes but must be regarded as portions of the routes of the private operators from which the private operators stood excluded under section 68F 2 c iii of the Act
Kelani Valley Motor Transit Co vs Colombo Ratnapura Omnibus Co and Kondala Rao vs Andhra Pradesh State Road Transport Corporation AIR 1961 SC 82 considered