CIVIL Appeals Nos
2498 2500 of 1978
From the Judgement and Order dated 15th November 1978 of the High Court of Orissa at Cuttack in OTC No 381 182 and 881 of 1976
Shanti Bhushan and P N Misra for the appellants
L N Sinha R K Mehta and A P Mohanty for the Respondents
4 The Judgment of the Court was delivered by DESAI J
These three appeals are directed against the common judgment rendered by the High Court of Orissa at Cuttack in three writ petitions styled as CJC No 38 i 182 and 881 all of 1976 moved by the appellants in these appeals
A common question of law permeates these three appeals and therefore factual matrix will be extracted from C A No 249978 filed by one Mr Ashutosh Swain as representative of the facts necessary for disposal of these appeals
State Transport Authority Orissa issued an advertisement dated June 24 1974 inviting applications in the prescribed form for endorsement in the permit of the motor cabs or omnibuses enabling the holders of the permit to ply the vehicle as a tourist vehicle with all India operation
In other words applications were invited from the operators for all India tourist permit
The last date for receiving the applications was July 13 1974 In response to the advertisement number of intending operators including the appellants in these appeals submitted their applications for grant of all India tourist permit to the concerned authority within time
The State Transport Authority processed these applications and disposed of the applications at its meeting held on Feb 2 1975
The appellants herein were granted all India tourist permits for omnibus with passenger capacity not exceeding 29
Some of She applicants who failed to obtain a permit filed three appeals being M V
Appeals Nos 15 16 and 17 all of 1975 to the State Transport Appellate Tribunal  Appellate Tribunal  for short under Sec 64 2 of the Act for short
The Appellate Tribunal dismissed all the appeals and confirmed the order made by the State Transport Authority granting all India tourist permits to the appellants
The writ petitions came to be filed by three unsuccessful applicants for permit questioning the correctness of the order granting the permit and dismissal of their appeals division Bench of the High Court by a common judgment allowed all the three writ petitions quashing and setting aside the order of the State Transport Appellate Tribunal as well as the State Transport Authority
Consequently these appellants surrendered their permits
Hence these three appeals by special leave
During the pendency of these appeals appellants were granted temporary tourist permits in compliance with the interim orders made by this Court
5 Mr Shanti Bhushan learned counsel who led on behalf of the appellants urged that the High Court erred in holding that only the holder of an existing contract carriage permit alone was eligible to make an application for endorsement of his existing permit enabling the permit holder to ply a tourist vehicle on all India operation and consequently quashing the all India tourist permits granted to the appellants on the sole ground that the appellants did not have or hold existing contract carriage permit
It was next contended that the High Court was further in error in holding that the applications made by the appellants were incomplete as some of the columns were found blank
It was further submitted that the High Court was in error in relying upon sub rules 2 3 and 4 of Rule 3 of the Orissa Tourist Vehicles Rules 1967 1967 Rules for short because the concept of all India tourist permit received for the first time a legal format on the introduction of sub section
7 in Sec 63 of the Act by Amending Act 56 of 1969 which came into force on October 1 1970
The scheme of the forbids an owner of a transport vehicle to use or permit the use of a vehicle in any public place whether or not such vehicle is actually carrying any passenger or goods save in accordance with the conditions of a permit granted or countersigned by the authority therein mentioned authorising the use of the vehicle in the place and in the manner in which the vehicle is to be used
The expression transport vehicle  is termed in Sec 2 33 of the Act to mean a public service vehicle or a goods vehicle Public service vehicle  is defined in Sec 2 25 of the Act to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a motor cab contract carriage and stage carriage 
Thus the scheme of the Act envisages three kinds of permits in respect of a public service vehicle namely permit for the use of motor cab or a permit to use an omnibus for contract carriage or a permit to use the same as a stage carriage
46 provides for application to be made for stage carriage permit
The holder of a stage carriage permit can use the vehicle to carry passengers for hire or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey
The second kind of permit in respect of a public service vehicle is the one contemplated by Sec 49 and styled as contract carriage permit  A vehicle in respect of which there is a contract carriage permit can be used for carrying passengers for hire or reward under a contract express or implied for the use of the vehicle as a whole at or for a fixed or agreed rate 6 of sum i on a time basis whether or not with reference to any route or distance or ii from one point to another and in either case without stopping to pick up or set down along the line of route passengers not included in the contract and includes a motor cab notwithstanding that the passengers may pay separate fares
By the Amending Act 56 of 1969 a concept of a tourist permit for a tourist vehicle was introduced in the Act Tourist vehicle  is defined in Sec 2 29A to mean a contract carriage constructed or adapted and equipped and maintained in accordance with such specification as the State Government may by notification in the Official Gazette specify in that behalf
By the same Amending Act sub s 7 of Sec 63 was introduced enabling State Transport Authority of any State to grant permits valid for the whole or any part of India in respect of such number of tourist vehicles as the Central Government may in respect of that State specify in this behalf and such applications have to be dealt with according to the provisions of Sections 49 50 51 57 58 59 59 A 60 61 and 64
Section 44 confers power on the State Government to set up such transport authorities in the State being State Transport Authority and Regional Transport Authority
The State Transport Authority will have its jurisdiction over the whole State and the State will be divided into various regions in respect of which a Regional Transport Authority will be specified Any one desiring to obtain either a stage carriage permit or a contract carriage permit has to apply to the Regional Transport Authority in whose jurisdiction the vehicle is sought to be operated
63 provides that permit granted by the Regional Transport Authority of any region shall not be valid in any other region unless the permit has been counter signed by the Regional Transport Authority of that region and a permit granted in one P State shall not be valid in any other State unless counter signed by the State Transport Authority of that other State or by the Regional Transport Authority concerned This scheme of law would manifestly reveal that a permit without the necessary counter signatures as hereinabove indicated enabling the permit holder to have the whole of India as its area of operation was unknown to the Act
By introduction of sub sec
7 in Sec 63 the concept of a permit to be granted by State Transport Authority of a State within the limits of the quota prescribed by the Central Government which would enable the holder of the permit to operate in the whole of India was introduced
For the sake of brevity this permit is described as all India tourist permit
7 Sub sec
7 of Sec 63 provides that for obtaining such a permit as envisaged therein which enables the holder of such a permit to ply vehicle as a tourist vehicle in the whole of India has to make an application to the State Transport Authority constituted for the State under Sec 44
The underlying object for creating this new class of permit was to promote tourism
If a tourist vehicle is hired by a tourist party for moving from State to State the vehicle cannot be taken to another State from the place of commencement of journey unless a valid contract carriage permit of that State is obtained or the existing permit is counter signed
This would impede tourism causing inconvenience to the tourists
To remove this barrier Parliament introduced sub sec
7 in Sec 63 envisaging a new kind of permit to be granted by the State Transport Authority of the State within the prescribed quota which would enable the holder of the permit to ply the tourist vehicle in the whole or any part of India
The impediment in the free flow of tourist traffic was sought to be suitably removed by this provision
Sub sec
7 of Sec 63 further provided that an application for such a permit has to be made to the State Transport Authority from whom the permit is sought to be obtained
The State Transport Authority has to process the application in the manner prescribed in the sections set out in sub s7 which amongst others includes Sec
provides for making an application for a contract carriage permit
Therefore an all India tourist permit is primarily a contract carriage permit but while the ordinary contract carriage permit can be granted by the Regional Transport Authority for operation within local jurisdiction or when countersigned by Regional Transport Authority of adjacent area in more than that one such jurisdiction but not at any rate outside the State and not in any case on an all India basis
To this extent an ordinary contract carriage permit differs from an all India tourist permit but an all India tourist permit is none the less a contract carriage permit
50 prescribes the procedure for processing an application for contract carriage permit
51 confers power on the Regional Transport Authority to grant contract carriage permit
Sub section
7 of Sec 63 on the other hand confers power on the State Transport Authority to grant an all India tourist permit which in effect is a contract carriage permit but which permits plying of tourist vehicle throughout India
Even for obtaining such a permit Sec
51 will apply with this modification that the application for all India tourist permit has to be made to State Transport Authority of the State in which the permit is sought
Such an application may be further 8 processed according to the provision contained in Sec 57 which prescribes procedure for applying and granting permit
58 prescribes duration of a permit and renewal of it
59 sets out general conditions attaching to all permits
59 A prescribes general form of permits
60 confers power on the authority granting the permit to cancel or suspend permits
61 makes the permit heritable on the death of the holder and Sec 64 provides for appeals against the orders of the Regional Transport Authority and the State Transport Authority
An Application for an all India tourist permit has to be processed in accordance with provisions contained in sections set out herein above
A resume of the relevant provisions and a brief outline of the Scheme of the Act sheds light on the concept of an all India tourist permit
This scheme of law nowhere expressly or by necessary implication suggests that an applicant for an all India tourist permit must of necessity or as a pre requisite have a contract carriage permit which alone can be endorsed for the purpose of all India operation
Sub s7 of Sec 63 if read thus would render nugatory the affirmative provision that on a proper application being made and legally processed the State Transport Authority can grant an all India tourist permit
If sub section
7 of Sec
63 is read as interpreted by the High Court one will have to redraft the section to read that the holder of a contract carriage permit may apply for an all India tourist permit
There is no warrant for reading the section like this
Undoubtedly an application for an all India tourist permit has to be made under Sec 49 which prescribes procedure for obtaining a contract carriage permit This ought to be so because in substance an all India tourist permit is none the less a contract carriage permit but with a much wider area of operation
That however does not permit an inference that before obtaining an all India tourist permit the intending operator must obtain a contract carriage permit from the Regional Transport Authority and then get it endorsed from the State Transport Authority to make it valid for the whole or any part of India
Sub section
7 of Sec
63 does not speak of any endorsement on permit
It speaks of granting a permit
Endorsement may be another mode of enlarging the area of Operational But that is not contemplated by sub section
7 of Sec 63
It speaks of granting a permit valid for the whole or any part of India When granted by a State Transport Authority in exercise of the power conferred by Sub Sec
7 of Sec 63 without any further endorsement of any other authority
Therefore with respect the High Court was not right in observing that it is clear from the 9 aforesaid provision of the rules and Schedule I that an holder of a permit issued in the State in relation to a motor cab or an omnibus is only competent to apply to the State Transport Authority for endorsement on that permit to the effect that the vehicle to which the permit relates is a tourist vehicle  There is nothing in sub section
7 of Sec 63 to warrant this construction
The High Court unfortunately did not look at the substantive provision enacted in sub section
7 of Sec 63 did not analyse it to ascertain its width and content but merely referred to rules which would be presently shown to be not applicable and reached the conclusion on the meaning of sub section
7 of Sec 63 without reference to it
The High Court referred to sub
2 3 and 4 of Rule 3 of 1967 Rules
Rule 3 confers power on the State Transport Authority to endorse any permit granted in the State in relation to any motor cab or omnibus to the effect that the vehicle to which the permit relates is an all India tourist vehicle
Sub rule 2 provides that any person who holds a permit issued in the State in relation to a motor cab or an omnibus may apply in the forms specified in Schedule I to the State Transport Authority for an endorsement on the permit to the effect that the vehicle to which the permit relates is a tourist vehicle  Sub rule 3 provides that an application under sub rule 2 shall be made in the manner provided therein and within the time limit prescribed therein
Sub rule 4 provides for the procedure before granting the necessary endorsement
Having referred to these three sub rules the High Court held that there must be a pre existing contract carriage permit granted in the State which alone can be endorsed subsequently as an all India tourist permit
These rules were enacted in the year 1967 and were put into operation on 1920 June 1967
They were enacted in exercise of the power conferred by Sec
68 of the 
68 confers powers on a State Government to make rules for the purpose of giving effect to the provisions of Chapter IV
These rules were made at a time when the only way to enlarge the area of operation in respect of a permit was endorsement by various authorities on the original permit granted by a Transport Authority
All India tourist permit was not conceptualised by the time 1967 Rules were framed
All India tourist permit as contemplated by sub section
7 of Sec
63 was not on the statute book at the time when these rules were enacted
Therefore the rules at the relevant time caters to a situation when the area of operation 10 specified in a contract carriage permit could be enlarged by endorsement by authority other than The grantor
The concept of all India tourist permit without any necessity of any endorsement by any authority save and except the grantor was then not known to law
In order to avoid endorsements by various authorities so as to enlarge the area of operation of a contract carriage permit and with avowed object of facilitating unimpeded free from of tourist traffic the concept of all India tourist permit was introduced with effect from October 1 1970
It also introduced a new type of vehicle specified as tourist vehicle
The aforementioned rules enacted in June 1967 when an all India tourist permit not necessitating any endorsement save the grant of it by the State Transport Authority and the concept of a tourist vehicle were foreign to the cannot be held to apply unless a provision to that effect was made in the substantive enactment conferring power on the State Transport Authority to grant an all India tourist permit which needs no endorsement for operation throughout India
One cannot read the concept of endorsement envisaged in the 1967 Rules in respect of a permit that can be granted as an all India tourist permit under sub s7 of Sec 63 of the Act by insisting upon as per the scheme of rules a pre existing contract carriage permit which alone can be endorsed
Therefore the conclusion is inescapable that these rules were not at all attracted while considering the applications for all India tourist permit made by the appellants under sub section
7 of Sec 63
The High Court with respect fell into another error when it failed to take notice of the advertisement issued by the State Transport Authority on June 24 1974 inviting applications for permits in respect of omnibus authorising it to ply as an all India tourist vehicle in the prescribed form
Two prescribed forms were annexed to the advertisement
The High Court overlooked the first form and only took notice of the second form
The first form was meant for those who had no existing contract carriage permit and were applying straightway for the first time for an all India tourist permit
The form itself shows that the application had to be made to the State Transport Authority for a contract carriage permit with an all India operation
There was another form which catered to the needs of the holder of the existing contract carriage permits who wanted the area of operation to be enlarged by converting an ordinary contract carriage permit into all India tourist permit
After referring to the second form the High Court found fault with the applica 11 tions made by the present appellants by observing that some of the columns were left blank
For a 
fresh applicant who had no existing contract carriage permit the blanks could not have been filled in
This is another unfortunate error in which the High Court fell while granting a writ of certiorari quashing the order under which permits were granted to the applicants
Having thus examined the various aspects which appealed to the High Court in reversing the decision granting all India tourist permit to the appellants we are of the opinion that none of them can be sustained
Firstly it was not necessary that the applicants for an all India tourist permit must have a pre existing contract carriage permit which alone could be endorsed so as to convert it into an all India tourist permit
Secondly the applications of the appellants for all relevant information were complete and the blanks were irrelevant and lastly sub rules 2 3 and 4 of Rule 3 had absolutely no application to the proceedings of the State Transport Authority held for consideration of applications for all India tourist permit and granting them to the appellants
These were the grounds on which the High Court reversed the decision of the State Transport Authority and the State Transport Appellate Tribunal
But as these reasons are unsustainable these appeals will have to be allowed
Accordingly these three appeals are allowed and the judgment of the High Court is quashed and set aside and the decision of the State Transport Authority granting all India tourist permits to the appellants is restored
As the appellants surrendered their all India tourist permits when they lost in the High Court and they plied their vehicles on temporary permits it must be held that if the duration of the original permits has expired they have to make a fresh application for all India tourist permit but in that event they will be treated as applications for renewal of all India tourist permit as contemplated by Sec
58 of the Act and not as fresh applications under Sec
637 read with Sec
the appeals are accordingly allowed with no order as to costs
SR Appeals allowed


Summary:
In response to an advertisement dated 25th June 1974 issued by the State Transport Authority Orissa inviting applications in the prescribed forms from the operators for all India Tourist Permit a number of intending operators including the appellants submitted their applications and at the meeting held on February 2 1975 the State Transport Authority granted to the appellants all India Tourist Permits for omnibus with passenger capacity not exceeding 29
Some of the applicants who failed to obtain a permit filed three appeals being M V
Appeals Nos 15 16 and 17 all of 1975 to the State Transport Appellate Tribunal under sec
64 2 of the 
The Appellate Tribunal dismissed all the appeals and confirmed the order made by the State Transport Authority granting all India tourist permits to the appellants
Three unsuccessful applicants for permit filed three writ petitions styled as CJC No 381 182 and 881 all of 1976 questioning the correctness of the order granting the permit and dismissal of their appeals in the High Court of Orissa
A Division Bench of the High Court by a common judgment allowed all the three writ petitions quashing and setting aside the order of the State Transport Authority
Consequently these appellants surrendered their permits
Hence these three appeals by special leave
During the pendency of these appeals The appellants were granted temporary all India tourist permits in compliance with the interim orders made by the Court
Allowing the appeals the Court 2  HELD 11 It was not necessary that the applicants for an all India tourist permit must have a pre existing contract carriage permit which could be endorsed so as to convert it into all India tourist permit 11 B C 12 By introducing sub section 7 in section 63 of the the concept of all India permit to be granted by a State Transport Authority of a State within the limits of the quota prescribed by the Central Government which would enable the holder of the permit to operate in the whole of India was introduced for the first time with effect from 1st October 1970
The underlying object for creating this new class of permit was to promote tourism and to remove the barrier caused by the earlier system under which if a tourist vehicle is hired by a tourist party for moving from State to State the vehicle cannot be taken to another State from the place of commencement of journey unless a valid contract carriage permit of that State is obtained or the existing permit is counter signed
6G H 7A B 13 An Application for an all India tourist permit has to be processed in accordance with the provisions of sections 49 50 51 57 58 59 60 61 and 63 7
An all India tourist permit is primarily a contract carriage permit but while the ordinary contract carriage permit can be granted by the Regional Transport Authority for operation within local jurisdiction or when counter signed by Regional Transport Authority of adjacent area in more than one such jurisdiction but not at any rate outside the State and not in any case on an all India basis
To this extent an ordinary contract carriage permit differs from an all India tourist permit but an all India tourist permit is none the less a contract carriage permit
Sub section 7 Of section 63 on the other hand confers power on the State Transport Authority to grant an all India tourist permit which in effect is a contract carriage permit but which permits plying of tourist vehicle throughout India
Even for obtaining such a permit section 51 will apply with this modification that the application for all India tourist permit has to be made to State Transport Authority of the State in which their permit is sought
This scheme of law nowhere expressly or by necessary implication suggests that an applicant for an all India tourist permit must of necessity or as a prerequisite have a contract carriage permit which alone can be endorsed for the purpose of all India operation
Sub section 7 of section 63 if read thus would render nugatory the affirmative provision that on a proper application being made and legally processed the State Transport Authority can grant an all India tourist permit
6D 7E H 8C D 14 The fact that an application for an all India tourist Permit has to be made under section 49 which prescribes procedure for obtaining a contract carriage permit because in substance an all India tourist permit is none the less a contract carriage permit but with a much wider area of operation however does not permit an inference that before obtaining an all India tourist permit the intending operator must obtain a contract carriage permit from the Regional Transport Authority and then get it endorsed from the State Transport Authority to make it valid for the whole or any part of India
Sub section 7 of section 63 does not speak of any 3 endorsement on permit though endorsement may be another mode of enlarging the area of operation It speaks of granting a permit valid for the whole or any part of India when granted by a State Transport Authority in exercise of The power conferred by sub section 7 of section 63 without any further endorsement of any other authority 8E H 2
Sub Rules 2 3 and 4 of Rule 3 of the Orissa Tourist Vehicles Rules 1967 had absolutely no application to the proceedings of the State Transport Authority held for consideration of applications for all India Tourist Permit and granting them to the appellants
These Rules were enacted in the year 1967 in exercise of the power conferred by section 68 of the and were brought into operation on 1920 June 1967
These rules were made at a time when the only way to enlarge the area of operation in respect of a permit was by endorsement by various authorities on the original permit granted by a Transport Authority
All India tourist permit was not conceptualized by the time 1967 Rules were framed
Therefore the rules at the relevant time catered to a situation When the area of operation specified in a contract carriage permit could be enlarged by endorsement by authority other than the grantor only
9F H 10A 3
The applications of the appellants with all relevant information were complete and the blanks in their application forms were irrelevant
In the advertisement issued by the State Transport Authority on June 24 1974 inviting applications for permits in respect of omnibus authorising it to ply as an all India tourist vehicle in the prescribed forms two prescribed forms were annexed
The first form was meant for those who had no existing contract carriage permit and were applying straightaway for the first time for an all India tourist permit
The form itself shows that the application had to be made to the State Transport Authority for a contract carriage permit with an all India operation
There was another form which catered to the needs of the holder of the existing contract carriage permits who wanted the area of operation to be enlarged by converting an ordinary contract carriage permit into all India tourist permit
For a fresh applicant like the appellants who had no existing contract carriage permit therefore the blanks could not have been filled in
10F H 11A