ivil Appeal No 937 of 1977
From the Judgment dated 2431977 of the Allahabad High Court in Second Appeal No 2746 of 1965
Shanti Bhushan JP Goyal Satish Chandra VM Tar kunde
RP Singh AK Shukla JM Khanna MR Bidsar KK Gupta
Vijay Kumar Verma Ms Shefali Khanna PK Chakraborty and RC Verma for the appearing parties
The Judgment of the Court was delivered by THOMMEN J
This appeal byleave arises from the judg ment
Of the Full Bench of the Allahabad High Court in Second Appeal No 2746 of 1965 whereby the High Court reversing the finding of the courts below held that the suit instituted by the present respondent was maintainable under section 180 of the United Provinces Tenancy Act 1939 the Act 
That is the only question which arises for consideration in this appeal brought by the defendant in the suit
678 The suit relates to 10 plots of land of Which the plain tiff is the proprietor and situated in District Muzaffarna gar
The suit was instituted for ejectment of the defendant appellant Lala Raghuraj Swarup now represented by his Legal Representatives and hereinafter referred to also as the sub tenant  who was granted a sub lease in the suit properties by the original tenants Raimal and Bhartu the tenants  for a period of five years commencing from 111950 and expiring on 3112
However on 1491954 the tenants surrendered their interest in the holding to the plaintiff
The plaintiff thereupon issued notice dated 2111954 to the defendant calling upon him to deliver vacant possession of the land to the plaintiff on 31121954 which was the agreed date of expiry of the sub lease
Since the defendant failed to comply with that de mand the plaintiff instituted the suit for ejectment under section 180 of the Act
Various conntentions were raised by the defendant in answer to the plaint allegations and all of them except the question whether the suit was maintainable under section 180 of the Act were rejected by the trial court as well as by the first appellate court
Holding that the suit was not maintainable they stated that in view of the fact that the defendant was holding the land as a sub tenant he was liable to be ejected only in terms of section 175 and not section 180 and had the suit been brought under section 175 it would have been stayed in terms of the Government Notification dated January 23 1953 stating that all suits applications or proceedings under section 175 were stayed
It is not disputed that had the suit been brought under section 175 it was liable to be stayed for the notification is still in force and has remained in force at all material times
On the other hand if the suit was rightly brought under section 180 there was no stay and in that event all the other issues having been found in favour of the plain tiff the suit has to be and ought to have been decreed
The High Court has so held by the impugned judgment
To examine this question we shall presently refer to sections 175 and 180 but before we do so it is necessary to refer to the provisions concerning the status of a sub tenant vis a vix a tenant whose rights are extinguished by operation of law
The expression tenant  in sub section 23 of section 3 of the Act includes a sub tenant  as defined in sub section 22 of that section
These sub sections read 679 322 sub tenant  means a person who holds land from the tenant thereof other than a permanent tenure holder or from a grove holder or from a rent free grantee or from a grantee at a favourable rate of rent and by whom rent is or but for a contract express or implied would be payable 323
tenant  means the person by whom rent is or but for a contract express or implied would be payable and except when the contrary intention appears includes a subtenant but does not include a mortgagee of proprietary or under proprietary rights a grove holder a rent free grantee a grantee at a favourable rate of rent or except as otherwise expressly provided by this Act an under pro prietor a permanent lessee or a thekadar It is not disputed that the defendant at the material time was a sub tenant  as defined under section 322 in terms of the sub lease granted to him by Raimal and Bhartu who were tenants  within the meaning of section 323
Nor is it disputed that the defendant and Raimal and Bhartu were non occupancy tenants as defined under section 31 which reads 31
All tenants other than permanent tenure holders fixed rate tenants tenants holding on special terms in Oudh ex proprietary tenants occupancy tenants and hereditary tenants are non occupancy tenants
 Sections 45 to 48 speak of extinction of tenancies
Section 45 so far as it is materi al to the facts of this case provides 45
The interest of a tenant shall be extin guished c    by surrender or by abandonment It is not disputed that in respect of the two tenants their interests had become extinguished in terms of clause c by reason of surrender of their interests in the holding on 1491954 in favour of the proprietor 680 plaintiff
The effect of such surrender on the interest of the sub tenant is dealt with in section 47
It is with reference to this section that the applicability of section 180 has to be considered
It iS important to remember that the material portions of section 47 namely sub sections 1 4 and 5 dealing with the interests of sub tenants on the extinction of the tenants  interests are concerned only with tenants other than permanent tenure holders or fixed rate tenants
In other words these sub Sections unlike sub section 2 concerning a transferee from a permanent tenure holder or a fixed rate tenant or sub section 3 dealing with mortgages executed prior to January 1902 deal with non occupancy tenants as in the present case and not with any other class of tenants
Section 47 so far as it is material reads 47
1 Except as otherwise provid ed in sub section 3 and sub section 4 the extinction of the interest of a tenant other than
a permanent tenure holder or a fixed rate tenant shall operate to extinguish the interest of any tenant holding under him   2 Subject to the provisions of section 16 of the Land Acquisition Act 1894 the extinction of the interest of a permanent tenure holder or a fixed rate tenant shall not of itself affect the rights of any transferee from such tenant under a valid transfer but after the transfer all covenants binding and enforceable as between the landholder and the tenant shall be binding and enforceable as between the landholder
and the transferee
4 Where at the time Of the extinc tion by surrender or abandonment or by death without any heir entitled to inherit such interest of the interest in a holding of a tenant other than a permanent tenUre holder or fixed rate tenant there is in existence a valid sub lease of the whole or of a portion of the holding executed on or after the first day of January 1902 all covenants binding and enforceable as between the tenant and the sub tenant shall subject to the provisions of sub section 5 be binding and enforceable as between the tenant s landholder and the sub tenant for the remainder of the term of the sub lease or for five years whichever period may be the shorter 681 5
In the cases referred to in sub section 3 and sub section 4 if the rent payable by the sub tenant is less than that hitherto payable by the tenant the sub tenant shall have the option of vacating the holding but shall if he continues in posses sion be liable to pay rent at the rate hith erto payable by the tenant   Section 471 shows that in the case of all non occupan cy tenants as distinguished from permanent tenure holders or fixed rate tenants with whom we are not concerned the extinction of their interests as such tenants will subject to the protection of sub sections 3 and 4 operate to extinguish the interests of tenants holding under them
The interest of the defendant being that of a nonoccupancy sub tenant is thus liable to be extinguished consequent on the extinction of the interests of the non occupancy tenants Raimal and Bhartu
This extinction of the defendant s inter est is however subject to the provisions contained is the relevant sub sections which on the facts of this case are sub seCtions 4 and 5
Sub section 4 shows that in the event of the
extinction of the interest of a nonoccupancy tenant by reason of his surrender or abandonment of such interest or his death without any heir to inherit such interest all covenants binding and enforceable as between the tenant and the subtenant subject to the provisions of sub section 5 will be binding and enforceable as between  the tenants  landholder proprietor and the sub tenant for the remainder Of the term of the sub lease or for five years whichever period may be the shorter
This means that the terms and conditions under which the defendant held the sub lease under Raimal and Bhartu continued to be binding and enforceable between the plaintiff and the defendant for the period from 149
1954 which was the date of surrender by the tenants till 31121954 which was the date on which the defendants  sub lease expired
This is however subject to sub section 5 which provides that if the rent payable by the sub tenant is less than the rent that was payable by the tenant the sub tenant has the Option of vacating the holding or continuing in possession for the period permitted by the statute on payment of rent at the higher rate which was applicable to the tenant
These provisions show that notwithstanding the extinc tion of the interest of the tenant by reason of his surren der or any other reason mentioned under sub section 4 a sub tenant whose subtenancy has not expired is protected for the remainder of the term of the sub lease or for 5 years whichever period be the shorter but subject to the requirement of sub section 5 about rent
The statutory 682 right vested in the defendant thus remained in force only for the statutorily limited period and not any further
The limited right of the sub tenant thereafter for the purpose of removal of standing crops and other products of the earth and his obligation to vacate the holding are stated in section 48 48
When the interest of a sub tenant is extinguished he shall vacate his holding but shall have in respect of the removal of stand ing crops and other products of the earth the same rights as the tenant would have upon ejectment in accordance with the provisions of this Act
This section further emphasises the need to vacate the holding upon extinguishment of the interest but without prejudice to the right of removal of the standing Crops etc
We shall now consider the two provisions under which a suit can be brought
Section 175 the operation of which now remains stayed deals with the ejectment of a non occupancy tenant while section 180 deals with ejectment of a person in occupation of land without consent
We shall first read section 175 and then section 180 so far as they are material 175   a non occupancy tenant shall also be liable to ejectment on the application of the landholder on any of the following grounds namely a that he is a tenant holding from year to year b that he is a tenant holding under a lease for a period which has expired or will expire before the end of the current agricultural year
 Significantly this section dealing with a non occupan cy tenant refers to a tenant falling under clause a or clause b ie a tenant having a present interest in terms of an unexpired lease or an expired lease under which he holds over
The section has no application to past ten ants whose interests have become extinguished for the rea sons stated in section 45 or section 47 or whose lease has been duly determined
On the other hand persons who are not or  who are no longer tenants at the time of the suit and liable to ejectment have to be proceeded against under section 180 683 180
1 A person taking or retaining posses sion of a plot of land without the consent of the person entitled to admit him to occupy such plot and otherwise than in accordance with the provisions of the law for the time being in force shall be liable to ejectment under this section on the suit of the person so entitled and also to pay damages which may extend to four times the annual rental value calculated in accordance with the sanctioned rates applicable to hereditary tenants
Section 180 has no application to a present tenant
This section provides for ejectment of a person in occupation of land without a valid consent
He is a person who has taken or retained possession of land without the consent of the landlord and contrary to law
He may have taken possession by trespass or after being in lawful occupation retained possession contrary to the will of the person entitled to admit him to occupy the land and without the support of law in either event he is a person liable to be ejected under section 180
It makes no difference
for the purpose of this section that a person was in unauthorised occupation at all material times or the occupation was authorised at its commencement but became unauthorised by reason of the authority to occupy having been extinguished by operation of law or duly determined by the person entitled to give such authority
Unlike section 175 which is as seen above confined to a person who is a tenant either in terms of an unexpired lease or by reason of his being allowed to continue in possession after the expiry of the period of the lease section 180 concerns a person who was never or who is no longer a tenant
Apart from a mere trespasser a person remaining in possession of the land notwithstanding the extinguishment of his interestor determination of his lease and without the consent of andcontrary to the will of the landlord and otherwise than as permitted by law equally falls within the ambit of section 180
Any such person does not hold under a lease and is not a tenant within the meaning of section 175
He has no present right of holding  or retaining possession  of the land
The expression hol ding  is defined under section 37 as 
a parcel or parcels of land held under one lease engagement or grant or in the absence of such lease engagement or grant under one tenure and in the case of a thekadar includes the theka area
684 This shows that there must be an existing or continuing legal relationship between the owner and  the person in possession of the land
In the absence of any such relation ship either because no lease or anyother interest or right was ever granted or because it was duly determined or extin guished a person retaining possession of the land without the consent and contrary to the will of the landlord does not come within
the purview of section 175
While the legislature provides for the ejectment of a nonoccupancy tenant on the grounds specified under section 175 section 180 is meant for ejectment of a person who has no present right to retain possession of land either because his occupation commenced without any such right or the right by which he commenced the occupation has since been duly extinguished or terminated in accordance with the law in force
Speaking of section 180 K Subba Rao J as he then was in Bhinka  Ors vs Charan Singh 1959 Supp
2 SCR 798 at 808 observes   
The word taking applies to a person taking possession of a land
otherwise than in accordance with the provisions of the law while the word retaining to a person taking possession in accordance with the provisions of the law but subsequently retain ing the same illegally So construed it is section 180 and not section 175 which should apply to a person who is in unlawful or unauthorised occupation of land
Mr VM Tarkunde counsel for the the appellant defendanthowever submits that the defendant is not in unlawful or unauthorised or illegal occupation of the land but he is inoccupation by reason of his being a lessee although the term of the lease has since expired
In the Case Of such a person it is section 175 that applies
Mr Tarkunde says that the interest of the defendant in the land continues eveniafter termination of the period of his sub lease and notwithstanding the plaintiffs notice calling upon  him to quit
His interest in the land counsel says is not extinguished by reason of the extinction of the interests of the tenants
The defendant ceased to be a sub tenant and was elevated  to the position of a tenant upon the extinction of the interests of the tenants by reason of their surrender of the holding This argument is urged by counsel on the basis of his construction of 685 section 47 which in our view is not correct
Section 471 as seen above specifically says that except as otherwise provided in sub section 3 and sub section 4 the extinguishment of the interest of a non ocCupancy tenant will extinguish the interest of his sub tenant
Once the interest Of the person under whom the defendant held the land was extinguished the defendant was no longer a sub tenant but a person enjoying a legal right for a limited period in terms of the statute
As stated by this Court in Birendra Pratap Singh  Anr
vs Gulwant Singh  Ors   878 879  
The subsequent possession was however under a legal right and that right accrued to the appellants under sub section 4 of section 47  
This sub section does not lay down that the original sub lease executed by the chief tenant who surrenders his1 rights is to continue in force
What this provision does is to create a new right in the sub tenant and that is the limited right to continue in possession for the re mainder of the term of the sub lease or for five years whichever period may be shorter   
This shows that the sub tenant was no longer a holder  of
any parcel of land once his right to hold was extinguished and his statutory right for the limited
period had also expired in terms of section 47
When that event has oc curred he has no further interest in the land and his continued occupation is as pointed out by this Court in Bhinka supra only an unauthorised or illegal occupation
Referring to sub section 4 of section
47 this Court in Birendra Pratap Singh supra stated  
So far as the right granted by section 474 is concerned it is granted by the statute itself for a limited period and once that period expires it cannot be held that the right continues thereafter
There is no requirement in law that after the expiry of that period
there must be eviction from the land in order to extinguish the right granted by section 474
The possession subsequent to 30th June 1951 cannot therefore be held to be in pursuance of a right conferred on a sub tenant referred to in section 474 Of the Tenancy Act 686 and consequently the land was not held by the appellants thereafter in the capacity mentioned in section 19vii of the Act  This observation regarding section 474 of the Act was made by this Court with reference to section 19vii of the UP Zamindari Abolition and Land Reforms Act 1950 No 1 of 195 1
The  construction placed on section 474 of the Act in that decision supports the view we have indicated on the point in issue and that decision was rightly relied on by the High Court in coming to the conclusion which it did
Mr JP Goyal supplementing the arguments of Mr Tarkunde places reliance on certain observations of this Court in Biswabani P Ltd vs Santosh Kumar Dutta  Ors   That decision refers to the protection of a statutory tenant in terms of the West Bengal Premises Tenacy Act 1956
This Court stated that even after the expiry of the contractual tenancy the tenant would continue as a statutory tenant except where he has surrendered possession or has been evicted under the enabling provisions of the relevant Rent Restriction Act
That decision has no rele vance to the facts of this case where the question relates to the construction of the relevant provisions of the Act under Which separate and special provisions have been made to regulate the rights and liabilities of different catego ries of tenants including non occupancy tenants with whom alone we are concerned
Their liability to ejectment fo llowing the extinction of their interests and rights in the land is regulated by statute
The views expressed by the Full Bench of the High Court are correct
The learned Judges have rightly held that insofar as the defendant has continued to remain in occupa tion of the land even after the expiry of the period of his lease and despite the landlord s notice to quit the prem ises he can no longer be regarded as a tenant referred to in clause a or b of section 175 and therefore that section has no application to him
The right section in terms of which a suit has to be brought against him as the plaintiff has done in the present case is section 180
Accordingly there is no merit in this appeal
RM SAHAI J
While joining  in the opinion of brother Thommen J few words are being added on nature of inter est created 687 under sub section 4 of Section 47 of the UP Tenancy Act of 1939 referred hereinafter as the Act
Sub tenant literally or statutorily either in the Rent Control legislations or agricultural tenancies normally is a person in possession holding from the tenant
His right or interest depends on provi sions in the Statute
Under UP Tenancy Act subtenant according toclause 22 of section 3 holds land from a tenant
Even though he isinclud ed in the definition of tenant in clause 23 and is non occupationally under Section 31 of the Act yet he is inferior class of tenant a she is specifically precluded by Section 39 from subletting and has nosecurity of tenure as he can be evicted under Section 175 of the Actand his inter est in the holding extinguishes statutorily under Section47 on extinction of interest of his tenant under Section 45 of the Act
Similar provision for extinction of tenancy existed in Agra TenancyAct of 1926
Sub section 3 and 4 are in fact identical with sub section2 and 3 of the 1926 Act
Even Section 28 of NWP Tenancy Act 1901Act II of 1901 provided for extinction of interest of sub tenant onejectment of his tenant under Section 57 of that Act
And on extinc tion for other reasons the covenant binding and enforceable as bet ween tenant and the sub tenant became binding between tenants land holder and the sub tenant and he was permitted at his option tocontinue in possession for the remainder period of lease on paymen tof the rent which was being paid by the tenant Therefore continuanceof sub tenant under the covenant between tenant and sub tenant exis ted in Tenancy legislations right from 1901
But there existed a vitaldifference between 1901 Act on one hand and 1926 and 1939 Act on the other
In 1901 Act the sub lessee could continue  for the remainderperiod of the term of the sub lease  whereas under 1926 and 1939 Actsthe period was fixed depending on if the sub tenancy was createdbefore or after 1st January 1902
In the former case the sub lesseecould continue for the remainder term of the sub lease or for the lifetime of the tenant or for ten years  whichever period was the shortest and in latter for the remainder period of the lease or five years  whichever Was shorter
Reason for fixation of period by latter enact ments namely 1926 and 1939 was to remove uncertainty about landholders interest as the tenants particularly widows who hadlmited interest only at times created permanent sub tenancy or subtenancies for long durations under 1901 Act
This resulted in mass of litigation and at times there was sharp divergence of
opinion between Board of Revenue the highest
authority in the hierarchy of revenue courts dealing with agricultural holdings and the High Court
It was to
put this controversy at end and reationalise the law ineeping with the
688 spirit of those times when tiller of the soil concept was still far that the Legislature altered the law and provided for durational or limited interest
To appreciate its nature during subsistance of the covenant and thereafter it is necessary to extract relevant sub sections of Section 47 47
1Except as otherwise provided in sub section 3 and sub section 4 the extinction of the interest of a tenant other than a permanent tenure holder or a fixed rate ten ant shall operate to extinguish the interest of any tenant holding under him
2    3      4 Where at the time of the extinction by surrender or abandonment or by death without any heir entitled to inherit such interest of the interest in a holding of a tenant other than a permanent tenure holder or fixed rate tenant there is in existence a valid sub lease of the whole or of a portion of the holding executed on or after the first day of January 1902 all covenants
binding and enforceable as between the tenant and the sub tenant shall subject to the provisions of sub section 5 be binding and enforceable as between the tenant s landholder and the sub tenant for the remainder of the term of the sub lease or forfive years whichever period may be the shorter
5 In the cases referred to in sub section 3 and subsection 4 if the rent payable by the sub tenant is less than that hitherto payable by the tenant the sub tenant shall have the option of vacating the holding but shall if he Continues in possession be liable to pay rent at the rate hitherto payable by the tenant
What is apparent from a bare perusal of sub section 1 of Section 47 is that it is Wider in application and immedi ate in operation
689 It extends to every tenant holding under a tenant other than permanent tenure holder or fixed rate tenant
The interest of such tenant extinguishes automatically and immediately by operation of law on extinction of interest of his chief tenant
No further requirement is contemplated
He becomes liable to ejectment
If he continues in possession he is a trespasser unless he holds With consent of the landholderlandlord expressly or impliedly
For sub tenants it has been made more explicit by Section 48 of the Act as he is required to vacate the holding except for the standing crops and produce which he is permitted to remove as any other tenant ejected in accordance with the provisions of the Act
Thus a tenants more so a Sub tenant continuing in possession after extinction of his interest as provided by Section 47 cannot be considered to be in possession in any other capacity but as retaining possession otherwise than in accordance with the law for the time being in force
Is the result any different for a sub tenant who is permitted to continue for the remainder period of sub lease by sub section 4 of Section 47 Tenancy extinguishes under section 45 for various reasons
Consequence of it on right of a tenant holding under him is mentioned in Section 47
Since sub tenant is tenant and holds from the tenant his interest too extinguishes by operation of law
But the Legislature made an exception in favour of those sub tenants whose interest came to an end either because the tenant surrendered or
abandoned his holding or died without any heir to inherit his interest obviously to avoid any preju dice to a weaker class of tenant due to conduct of his tenant or for reasons beyond control of anyone
But the expression Except as provided  in sub section 1 does not carve out an exception to extinction of interest of sub tenant but to its immediate operation
That is interest in the holding is extinguished but from a future date namely expiry of the period of leases or five years whichever is shorter
This benefit or concession cannot be stretched to vest any fresh tenancy rightin  him after expiry of the period
On a combined reading of sub section 1 of Section 47 with sub section 4 the plain and simple meaning that emerges is that the interest of a sub tenant extinguishes on surrender by his tenant but this is deferred for the period mentioned in this sub section
The right created by sub section 4 being limited in operation it cannot extend beyond the period mentioned in it
Otherwise the sub section 4 and sub section 1 of the Act would be on cross purpose with each other
Interpreting the Sub section in any other manner would be against principle of construction as sub section 4
cannot be read in isolation
That is the consequence provided for in sub section 1 do take place but in the 690 manner provided by sub section 4
To put it simply the extinction is complete but its operation is postponed to a later date
Effort was made to distort the otherwise plain and simple construction by urging that since sub section 5 enjoins paying of same rent as the tenant who had surren dered the right and interest of the sub tenant stands enhanced by operation of law and he stands substituted inplace of his tenant with higher rights than he held
Natural follow up of it added the learned counsel is that new right or interest created under Section 474 cannot extinguish after expiry of the period except as provided under section 45 of the Act
The argument suffers from inherent fallacy Section 474 does not arrest extinction
It only postpones it
In Birendra Pratap vs Gulwant Singh and Others  this Court while construing sub section 4of Section 47 observed as under So far as the right granted by Section 474 is concerned it is granted by the statute itself for a limited period and once that period expires it cannot be held that the right continues thereafter
 No new tenancy is created
What is made binding and enforce able is the old covenant existing between the tenant and sub tenant for the remainder period of the sub lease
Thus whatever right a sub tenant acquires under sub section 4 it ceases to operate after the expiry of period of lease or the period mentioned in the sub section
No second extinc tion is visualised
That would be not
only doing violence to the language of the sub sections but would also result in nullifying the 
effect of sub section 1 completely
Status of a person in possession after expiry of the remainder period of lease or five years as provided in Section 474 can neither be of statutory tenant nor a tenant holding over as understood is common parlance
He is a person in possession without authority of law
A sub tenant whose extinction is postponed as a matter of conces sion because of the tenant s prejudicial acts cannot be placed any higher than other sub tenants who are required to vacate their holding immediately under Section 48
Therefore retention of possession by such person cannot be except otherwise than in accordance with the provisions of the Act for the time being in force
691 The Full Bench therefore did not commit any error of law in applying the ratio laid down by this Court in Birendra Pratap Singh vs Gulwant Singh and Others supra that the effect of extinction of sub tenant s interest under Section 471 of the Act was not only that he could no longer be held to be in the capacity of sub tenant  but even the new right  of continuance for the remainder period of lease which was created under Section 474 was limited and did not vest any right in such person to continue after that date nor any fresh right of sub tenancy could be deemed to accrue consequently possession of Such person after expiry of the extended period was Otherwise that in accordance with the provision of taw against whom a suit for ejectment under Section 180 of the Act was maintanable
The appeal thus as held by brother Thommen J is devoid of any merit
ORDER For the reasons stated by us in our separate but concurring judgments dated August 21 1991 we see no merit in fids appeal and it is accordingly dismissed with costs throughout
RP Appeal dismissed


Summary:
In Civil Appeal No 937 of 1980 the Regional Transport Authority out of two permits Wanted one permit an the route Salem to Poolambadi to the appellant State Transport Undertaking and tie other to the first respondent
In Civil Appeal No 938 of 1980 them was only one permit for the route Salem to Pallipatti which was Wanted to the State Transport Undertaking denying the second respondent
In Civil Appeal No 939 of 1980 on the route Salem to Poolambadi ant of two permits one permit was granted to the State Transport Undertaking and the other to another private operator denying the permit to the respondent therein
In Civil Appeal No 940 of 1980 on the route Salem to Erode the objection of the State Transport Undertaking on the renewal sought by the respondent was sustained and the permit was granted to the State Transport Undertaking
In Civil Appeal No 941 of 1980 an the route Salem to Tiruchangode the renewal application of the respondent was declined on objection by the State Transport Undertaking who in turn an its cation was granted the permit
All the aggrieved parties preferred appeals before the State Transport Appellate Tribunal which dismissed the appeals holding that since a draft scheme under Section 68C of the had been published by the State Government and was under consideration at the time when the matter was pending in appeal subsection 1 D of Section 68 F of the Act stood in the way for any relief being granted to the private operators
709 The High
Court allowing the revision preferred by the private operators upset the orders of the Appellate Author ity directing the Regional Transport Authority to re con sider the matters on merit against which the State Transport Undertaking approached this Court by Special Leave
The appellants the private operators in CA Nos
940 941 of 1980 contendeed that Section 68F1 D proviso of the was applicable to their cases on the strength of orders in terms of Section 1341 A as valid permits were continuing and were capable of being renewed for a limited period so as to cease being effective on the publication of the final scheme under section 68D3
Allowing CA Nos
937 939 of 1980 unqualifiedly and CA Nos
940 941 of 1980 qualifiedly this Court HELD 1
To the cases of non grant of permits to the ag grieved private operates sub section 1 D of Section 68F of the Act was clearly attracted No permit could be granted on their asking in the presence of the draft scheme
And when none could be granted the exercise of consideration of the claim of the private operators on merit was itself a futlifty
When the law forbade the grant of a permit merits of grant stood nowhere
711F G 2
The private operators in CA Nos 940 941 of 1980 were functioning and had sought renewal of their existing permits on the routes in question and on denial of the same and corresponding grant thereof to the State Transport Undertaking grievance arose to those private operators to take the matter in appeal
Their cases fail within the proviso to sub section 1 D to Section 68F of the Act
Their permits were capaable of being renewed for a limited period provided they had exlpired after the publication of the draft scheme under Section 68C of the Act 712B C 3
Even though the two appeals in CA Nos 940 941 of 1980 shall also meet the same fate as that of CA Nos 937 939 of 1980 they shall remain subjected to an alternate that in the event of orders under sub section 1 A of Section 134 being existent the Appellate Authority shah examine the question and pass such orders in relation to the appeals of these private operators in accordance with law but in case there were no such orders earlier the view of the Appellate Authority dismissing the appeals shall stand affirmed
712G 713A 710 KA Natarajan vs
M Naina Mohammed  Ant AIR 1978 Madras 28O referred to