Case: Shrinivasa Reddy And Others Vs. The State Of Mysore And Others

Wanchoo, J.:1. This petition under Art.32 of the Constitution is a sequel to Writ Petition No. 75 of 1959*which is also being disposed of today. It is not necessary therefore to set out the early history leading to this petition as that has already been given in the judgment in Petition No. 75 (See A.I.R. 1960 SC 321) . Suffice it to say that the petitioners who are the same as the petitioners in Petition No. 75 (See A.I.R. 1960 SC 321) were transport operators in the Anekal pocket in the State of Mysore. They held stage carriage permits for various routes which were expiring on 31-3-1958. They were granted renewal of these permits up to March 31, 1959. In the meantime, steps were taken to formulate an approved scheme under Chapter IV-A of the Motor Vehicles Act. No. IV of 1939, (hereinafter called the Act). The scheme was finally approved and published on April 23, 1959. In order, however, to avoid inconvenience to the public temporary permits were granted, to the petitioners after March 31, 1959, for a period of four months or up to the time the Mysore Government Road Transport Department (hereinafter called the Department) was granted permits under S. 68F, whichever was earlier. Sometime before June 23, 1959, the Department applied for permits in accordance with the scheme while the petitioners had applied for renewal of their permits. The Regional Transport Authority, Bangalore (hereinafter called the Authority) issued permits to the Department and rejected the renewal applications of the petitioners on June 23, 1959. The petitioners then applied to the High Court of Mysore by a writ petition challeging the issue of permits to the Department and the refusal of renewal to them. This petition was disposed of by the High Court on July 14, 1959, and it was held that the grant of permits to the Department was invalid and the rejection of the renewal applications of the petitioners was incorrect; but the High Court dismissed this petition on the ground that the relief to which the petitioners were entitled, in view of these findings, would be short-lived. The petitioners then applied for a certificate to enable them to appeal to this Court and that application is still pending. The present petition was filed on August 3, 1959.2. The first contention of the petitioners in this petition is that after the scheme had been approved and published under Chapter IV-A of the Act, it was the duty of the Department to apply under S. 68F for all the routes covered by the scheme and it was only, when the Department applied for all the routes, that it would be open to the Authority to reject the applications for renewal made by the petitioners. The Department in this case applied only for some of the routes and in particular it was pointed out that there was no application at any rate for one out of the fourteen routes included in the scheme. Therefore it is submitted that the Department by picking and choosing which route to apply for and which to leave out was discriminating against those operators for whose routes it applied for permits and in favour of those operators for whose routes it did not apply for permits. Further, the Authority by granting permits to the Department in such circumstances was denying equality before the law of the petitioners. This was an infringement of Art. 14 of the Constitution and also contravened the petitioners right to carry on business guaranteed under Art. 19(1) (g). Secondly, the petitioners contended that the Authority could not issue permits in this case as S. 57 (2) and (3) was not complied with. The petitioners therefore prayed for a direction quashing the order of the Authority issuing permits to the Department under S. 68F and refusing their renewal applications.3. The petition has been opposed by the Department and its contention is that even though an approved scheme might cover a number of routes, it was open to the Department to implement it in stages and that it was the best judge as to which route should be taken over first and there could be no discrimination so long as the holders of the stage carriage permits operating on a particular route were treated equally inter se in pursuance of the approved scheme. It is also urged that sub-sections (2) and (3) of S. 57 do not apply to applications for issue of permits made under S. 68F (1).4. We shall begin by examining the second contention. S. 68F lays down that where in pursuance of an approved scheme an State Transport Undertaking applies in the manner specified in Chapter IV for a stage carriage permit etc., in respect of a notified area or a notified route, the Regional Transport Authority shall issue such permit to the Undertaking notwithstanding anything to the contrary contained in Chapter IV. Clearly therefore the Undertaking has to apply for permits in the manner provided in Chapter IV, even though the Regional Transport Authority may be bound on such application to issue the permits. This takes us to S. 45, which lays down to which authority the application shall be made and then to S. 46 which lays down the particulars which the application must contain. Thus the Undertaking must comply with the terms of Ss. 45 and 46 when it applies for permits.Then comes S. 57 (2) which lays down that an application for a stage carriage permit (with which we are concerned in this case) shall be made not less than six weeks before the date on which it is desired that the permit shall take effect or if the Regional Transport Authority appoints dates for the receipt of such applications, on such dates. In this case the Regional Transport Authority had appointed no date and clearly therefore the Undertaking should have applied not less than six weeks before the date on which it desired to start the service. This is necessary to give time to the Regional Transport Authority to deal with the matter and if necessary to inform those who might be affected under S. 68F (2) to be prepared for the change. That is why S. 68F (1) provided that the applications shall be made in the manner provided in Chapter IV. This provision has nothing to do with the publication required under S. 57 (3) which is meant for a different purpose.It was urged by the learned Solicitor General that the procedure provided in S. 57 (3) also applies as it is not inconsistent with the provisions of Chapter IV-A (see s. 68B).We consider it unnecessary to go into this matter for it is not disputed that the applications for permits in this case were not made at least six weeks before the date from which the permits were to take effect. In the circumstances the applications being not in the manner provided in Chapter IV and being actually in breach of S. 57 (2), no permits could be issued on such applications. Therefore, the orders in favour of the Department issuing permits to it are liable to be quashed on this ground alone.5. In view of the above decision, it is really not necessary for us to decide the first contention. We would, however, like to point out the dangers inherent in the claim put forward by the Department. A scheme is prepared under S. 68C. It is initiated by the Undertaking when it is of opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the Undertaking, whether to the exclusion, complete or partial, of other persons or otherwise. This section thus gives power to the Undertaking to prepare a scheme in relation to an area or route or portion thereof. The Undertaking is thus not bound to prepare a scheme for the whole State at one time; it has been given the power to choose particular types of services or a particular area or particular routes or even portions thereof, for the reason that it may not be possible for the Undertaking to run services all over the State at the same time. Thus when the Undertaking decides to frame a scheme, it must take into account its resources in men, material and money and frame a scheme only to the extent to which it can carry it out in full. For example, if it can carry out the scheme for the whole State at once it may frame a schemes for the whole State. But if it cannot do so, it can frame a scheme for one district. Even if that is not within its resources it can frame a scheme for a part of a district. Even in a part of the district its scheme may deal with certain routes and not all. So long as it can show that the scheme is an efficient, adequate, economical and properly co-ordinated scheme for road transport service, it will have a right to frame a scheme for only a part of the transport services running in a State.Therefore, the scheme to be framed must be such as is capable of being carried out all at once and that is why the Undertaking has been given the power to frame a scheme for an area or route or even a portion thereof. Further after the scheme is framed it is approved and published by the State Government. Thereafter it is the duty of the Undertaking to carry out the scheme and in pursuance of that it applies for permits under S. 68F (1). If the Undertaking at that stage has the power to carry it out piecemeal, it would be possible for it to abuse the power of implementation and to discriminate against some operators and in favour of others included in the scheme and also to break up the integrity of the scheme and in a sense modify it against the terms of S. 68E. There is no difficulty for the Undertaking to apply for permits relating to the entire scheme at the same time, for the manner in which the schemes is prepared under S. 68C takes into account all the difficulties which might arise in the implementation of the scheme and with that very object provides for taking over particular types of transport services in relation to areas or routes or even portions thereof. We need not however pursue the matter further on this occasion.6. Before we go to the other point raised in this petition, we should like briefly to refer to a feature of the scheme, which has been brought to our notice. This feature is that though the scheme mentions fourteen routes with their terminal and intermediate points and the length of the routes, there is a parrot-like repetition of the words "or any portion thereof" in all the fourteen routes.We should like to point out that it is the duty of the Undertaking when it prepares a scheme under S. 68C to decide whether it will take up a whole route or a portion thereof. If it decides to take a portion of the route (provided, however, conditions of efficiency, adequacy, economy and proper coordination are fulfilled), it should specify that portion only in the scheme.S. 68C does not contemplate that the routes should be specified in the manner in which they have been specified in this case, as, for example, "Bangalore to Anekal or any portion thereof". If the intention was not to operate on the whole Bangalore-Anekal route, but only a portion of it, that portion should have been specified as the route. However, in this particular case, we are of opinion that the intention clearly was to take over the whole route in the case of all the fourteen routes, which will be clear from the length of the route to be taken over mentioned in the schedule to the scheme.Therefore, the words "or any portion thereof" which have been repeated, as if they were some kind of charm, throughout the schedule are surplusage in view of the length specified and may be ignored and the scheme taken to apply to the entire length of the fourteen routes.7. The next question is about the order to be passed in this case. The contention on behalf of the Department is that as the petitioners had applied to the High Court and their petition was dismissed and the application for a certificate to appeal to this Court is pending before the High Court, this Court should dismiss the present petition and direct the petitioners to come either on a certificate granted by the High Court or by a special leave application in case the High Court refuses the certificate. We do not think it necessary in this case to decide this general question in view of certain special features of the present case. It is true that the writ petition by the petitioners was dismissed by the High Court; but the judgment of the High Court shows that it was of opinion that the applications under S. 68F should have complied with S. 57 (2) of the Act and should thus have been made at least six weeks before the date from which the scheme was to be implemented. On that view the High Court held that the issue of permits to the Department was not according to law. It also held in consequence that refusal of the renewal to the petitioners was illegal; but it refused to pass an order in favour of the petitioners on the ground that the relief granted to them would be short-lived. In effect, therefore, the judgment of the High Court was in favour of the petitioners and not against them, though in form the writ petition was dismissed.In these circumstances we are of opinion that as the petitioners fundamental right to carry on business is certainly involved in this case we should not refuse relief to the petitioners on the ground that their writ petition was dismissed by the High Court and they have not yet been able to obtain a certificate permitting them to appeal to this Court.8. There are two prayers in the present petition: (1) that the proceedings of the Authority issuing permits to the Department be quashed, and (2) that the proceedings rejecting the renewal applications of the petitioners be also quashed. We see no reason why we should not grant the first prayer and quash the issue of permits to the Department by the Authority on June 23, 1959. Our attention in this connection was drawn to K. N. Guruswamy v. State of Mysore, 1955-1 SCR 305 : (AIR 1954 SC 592 ). In that case this Court after declaring the law in favour of the petitioner did not issue a writ as there was hardly a fortnight left for the excise contract which was involved in that case to expire and the issue of a writ would have been meaningless and ineffective. That case however is distinguishable because the contract there would have come to an end within a few days.In the present case there is no reason to assume that the six weeks period which is the minimum period prescribed under S. 57 (2) is the only period that will be required for implementation of the scheme under S. 68F (1). In these circumstances we are of opinion that the prayer of quashing the permits granted to the Department on June 23, 1959, should be allowed. As for the other prayer for quashing the order rejecting the renewal applications of the petitioners, it is now unnecessary in view of our decision in Petitions Nos. 54 and 75 of 1959.(See A.I.R. 1960 SC 321 .)

Decision:
1[ds]S. 68F lays down that where in pursuance of an approved scheme an State Transport Undertaking applies in the manner specified in Chapter IV for a stage carriage permit etc., in respect of a notified area or a notified route, the Regional Transport Authority shall issue such permit to the Undertaking notwithstanding anything to the contrary contained in Chapter IV. Clearly therefore the Undertaking has to apply for permits in the manner provided in Chapter IV, even though the Regional Transport Authority may be bound on such application to issue the permits. This takes us to S. 45, which lays down to which authority the application shall be made and then to S. 46 which lays down the particulars which the application must contain. Thus the Undertaking must comply with the terms of Ss. 45 and 46 when it applies for permits.Then comes S. 57 (2) which lays down that an application for a stage carriage permit (with which we are concerned in this case) shall be made not less than six weeks before the date on which it is desired that the permit shall take effect or if the Regional Transport Authority appoints dates for the receipt of such applications, on such dates. In this case the Regional Transport Authority had appointed no date and clearly therefore the Undertaking should have applied not less than six weeks before the date on which it desired to start the service. This is necessary to give time to the Regional Transport Authority to deal with the matter and if necessary to inform those who might be affected under S. 68F (2) to be prepared for the change. That is why S. 68F (1) provided that the applications shall be made in the manner provided in Chapter IV. This provision has nothing to do with the publication required under S. 57 (3) which is meant for a different purpose.It was urged by the learned Solicitor General that the procedure provided in S. 57 (3) also applies as it is not inconsistent with the provisions of Chapter IV-A (see s. 68B).We consider it unnecessary to go into this matter for it is not disputed that the applications for permits in this case were not made at least six weeks before the date from which the permits were to take effect. In the circumstances the applications being not in the manner provided in Chapter IV and being actually in breach of S. 57 (2), no permits could be issued on such applications. Therefore, the orders in favour of the Department issuing permits to it are liable to be quashed on this groundthe scheme to be framed must be such as is capable of being carried out all at once and that is why the Undertaking has been given the power to frame a scheme for an area or route or even a portion thereof. Further after the scheme is framed it is approved and published by the State Government. Thereafter it is the duty of the Undertaking to carry out the scheme and in pursuance of that it applies for permits under S. 68F (1). If the Undertaking at that stage has the power to carry it out piecemeal, it would be possible for it to abuse the power of implementation and to discriminate against some operators and in favour of others included in the scheme and also to break up the integrity of the scheme and in a sense modify it against the terms of S. 68E. There is no difficulty for the Undertaking to apply for permits relating to the entire scheme at the same time, for the manner in which the schemes is prepared under S. 68C takes into account all the difficulties which might arise in the implementation of the scheme and with that very object provides for taking over particular types of transport services in relation to areas or routes or even portions thereof. We need not however pursue the matter further on thiseffect, therefore, the judgment of the High Court was in favour of the petitioners and not against them, though in form the writ petition was dismissed.In these circumstances we are of opinion that as the petitioners fundamental right to carry on business is certainly involved in this case we should not refuse relief to the petitioners on the ground that their writ petition was dismissed by the High Court and they have not yet been able to obtain a certificate permitting them to appeal to thiscase however is distinguishable because the contract there would have come to an end within a few days.In the present case there is no reason to assume that the six weeks period which is the minimum period prescribed under S. 57 (2) is the only period that will be required for implementation of the scheme under S. 68F (1). In these circumstances we are of opinion that the prayer of quashing the permits granted to the Department on June 23, 1959, should be allowed. As for the other prayer for quashing the order rejecting the renewal applications of the petitioners, it is now unnecessary in view of our decision in Petitions Nos. 54 and 75 of 1959.(See A.I.R. 1960 SC 321  .)