IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.10.2006 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR W.A.No.1675 of 2000 Tvl.Tamil Nadu State Transport Corporation (Villupuram Division-III) Ltd., Kancheepuram .. Appellant -Vs- 1. The State Transport Authority Chepauk, Chennai 600 005 2. The State Transport Appellate Tribunal, Chennai 3. Tmt.Vyayammal Prop. Sri Bharathi Roadways 24, Sundar Iyer Street Arakkonam .. Respondents Appeal filed under Clause 15 of the Letters Patent, against the order dated 30.8.2000 made in W.P.No.14769 of 2000 filed under Article 226 of Constitution of India, to issue a Writ of Certiorari calling for Records pertaining to the proceedings on the file of 2nd Respondent in Appeal No.194/90 dt. 5.12.90 and quash the same. For Appellant :: Mr.K.Alagirisamy Senior Counsel for Mr.R.Balasubramaniam For Respondents :: Mr.A.Arumugham Addl. Government Pleader for R1 Mr.M.Palani for R2 JUDGMENT D.MURUGESAN, J. The correctness of the order in the writ petition is questioned by the Tamil Nadu State Transport Corporation (Villupuram Division-III) Ltd., Kancheepuram in this appeal. https://hcservices.ecourts.gov.in/hcservices/ 2. Following are the few facts giving rise to the present appeal:- The third respondent/writ petitioner (hereinafter referred to as the "operator") is a permit holder to operate the stage carriage bearing Regn.No.TAJ 5607 on the inter-state route Tirupathi to Arakkonam with five singles per day. A portion of the route in question is a scheme route and the route is also covered by the inter-state agreement in G.O.Ms.No.1000, Home dated 3.6.75 of the State of Tamil Nadu and in G.O.No.715, Home dated 2.6.75 of the State of Andhra Pradesh. As per the provisions of the scheme, a minimum of 8 permit/buses upto a maximum of 14 and the minimum of 24 singles upto a maximum of 48 singles were allowed and the 48 singles included the five singles allowed to the operator. 3. The operator made an application to the State Transport Authority, Andhra Pradesh for variation by way of inclusion of an additional vehicle to perform two singles with the same stage carriage permit and the said application was allowed by the State Transport Authority, Andhra Pradesh on 25.6.85. The operator thereafter applied to the State Transport Authority, Tamil Nadu on 19.10.87 for counter-signature. While the said application was pending, Motor Vehicles Act, 1988 (hereinafter referred to as the "new Act") came into force with effect from 1.7.89. As the application for counter-signature was kept pending, the operator approached this Court in W.P.No.14038 of 1989 seeking for a direction to the State Transport Authority, Tamil Nadu to dispose of the said application and the said writ petition was ordered on 6.3.90. Pursuant to the direction of this Court, the application was notified under Section 57 (3) of the Motor Vehicles Act, 1939 (hereinafter referred to as the "old Act"). Only one representation was received from Thiru K.Ramachandra Naidu of Tirupathi to the effect that the route between Arakkonam and Tirupathi was well served and there was no provision in the inter-state agreement for grant of counter-signature for inclusion of an additional vehicle. Though a hearing was held on 23.4.90, the said objector did not attend the hearing. Nevertheless, the application came to be rejected by the State Transport Authority, Tamil Nadu in its order dated 26.4.90 on the ground that under Section 72(2) of the new Act, there is no provision for allowing one more vehicle to be operated on a single permit. The Authority further found that as per Section 80(3) of the new Act, no variation for inclusion of one more vehicle could be granted and the provision does not contemplate for such variation. The Authority also found that the route from Tiruttani to Tirupathi overlapped the approved scheme from Madras to Tirupathi ordered in G.O.Ms.No.293, Home dated 13.2.74 and published in the Tamil Nadu Government Gazette on 13.3.74. In terms of the judgment of the Supreme Court in Pandiyan Roadways Corporation Limited v. M.A.Egappan reported in AIR 1987 SC 958, no persons other than those specifically authorised by the terms of the scheme can be allowed to operate on the route or sector of the notified route. 4. Questioning the above order, the operator preferred an appeal before the State Transport Appellate Tribunal, Chennai and the said appeal was allowed by the Appellate Tribunal in its order dated 5.12.90. The Tribunal concurred with the operator on the ground that in terms of Section 72(2) and Section 80(3) of the new Act, the variation could be granted on a single permit to operate one more vehicle on the same route. As the said order of the Tribunal was not implemented, the operator filed W.P.No.21207 of 1993 seeking for a direction to implement the said order. https://hcservices.ecourts.gov.in/hcservices/ This Court, by order dated 19.3.94, directed the State Transport Authority to implement the order of the Tribunal. Accordingly, the State Transport Authority passed orders granting counter-signature on 23.8.2000. Aggrieved by the said order, the appellant-Corporation filed the writ petition. By the impugned order dated 30.8.2000, the learned single Judge dismissed the writ petition on the ground that "when the order was passed, admittedly, the petitioner/Corporation was not in existence and came into existence only in the year 1992. Merely because the said order is going to be implemented, now it cannot be a ground to challenge the order after 10 years". The correctness of the said order is questioned in this appeal. 5. We have heard at length Mr.K.Alagirisamy, the learned Senior Counsel appearing for the Corporation and Mr.M.Palani, the learned counsel appearing for the operator. 6. Insofar as the delay and laches, the learned Senior Counsel has submitted that the appellant being the Transport Corporation incorporated in the year 1992 came to know of the order of the Appellate Tribunal only when the State Transport Authority had granted counter-signature in its order dated 23.8.2000 and immediately thereafter, without any delay, the writ petition was filed on 28.8.2000, within five days from the date of the order of the State Transport Authority granting counter-signature. As the appellant is the State Transport Corporation, while considering the delay, the Court should keep in mind the public interest, especially when the challenge to the variation is made on legal grounds, and the challenge should not be rejected solely on the ground of delay. On merits, the learned Senior Counsel has submitted that under the new Act, there is no provision for the grant of variation by including one more vehicle on the same permit and in the absence of any provision, the order of the Appellate Tribunal granting counter-signature is totally contrary to the statute. He has also submitted that the grant of variation would amount to the grant of fresh permit and in the absence of any provision for the grant of variation to operate more than one vehicle on the same permit under Section 72 of the new Act, the order of the State Transport Appellate Tribunal is bad in law. 7. Per contra, Mr.M.Palani, the learned counsel appearing for the operator has submitted that the Corporation has approached the Court after a lapse of 12 years and even if the order is illegal, it cannot be questioned when there is inordinate and unexplained delay. He has further submitted that at the time when the variation was granted by the State Transport Authority, Andhra Pradesh, Pattukkottai Azhagiri Transport Corporation Ltd., was only operating their vehicles on the scheme route. On bifurcation, the said Corporation on the route in question became Dr.MGR Transport Corporation Ltd. Thereafter only, in the year 1992, the Tamil Nadu State Transport Corporation Ltd., was incorporated by merging some of the Corporations including the Dr.MGR Transport Corporation Ltd. After the notification was made on the application for variation under Section 57(3) of the old Act, the Pattukkottai Azhagiri Transport Corporation Ltd., did not make any objection and therefore, in terms of Section 57(4), even Pattukkottai Azhagiri Transport Corporation Ltd., cannot question the variation. In the absence of any objection by the then Corporation, the present appellant-Corporation, having stepped into the shoes of Pattukkottai Transport Corporation Ltd., cannot be considered https://hcservices.ecourts.gov.in/hcservices/ to be an operator aggrieved by the grant of variation. The learned counsel has further submitted that in terms of Section 70 of the new Act, variation by way of additional vehicle is also permissible. Insofar as the contention of the appellant-Corporation that the grant of variation would amount to the grant of fresh permit, the learned counsel has submitted that in view of the judgment of the Supreme Court in Karnataka State Road Transport Corporation, Bangalore v. B.A.Jayaram and others reported in AIR 1984 SC 790, grant of variation would not amount to grant of new permit. In this context, he also relied upon the judgment of the Supreme Court in Karnataka State Road Transport Corporation, Bangalore and others v. Karnataka State Transport Authority, Bangalore and others reported in AIR 1987 SC 711. Finally, the learned counsel has submitted that in view of the enactment of the Tamil Nadu Act 41 of 1992, all variations granted are saved and therefore, the operator is entitled to the counter-signature under the new Act. Hence the learned counsel submitted that the order in the writ petition is valid. 8. From the above rival contentions, the following points arise for determination:- (1) Whether the writ petition is liable to be dismissed on the ground of laches? (2) Whether the appellant-Corporation would be disentitled to question the grant of variation inasmuch as there was no objection filed pursuant to the notification issued under Section 57(3) of the old Act? (3) Whether the grant of variation under the old Act is saved consequent upon the enactment of the Tamil Nadu Act 41 of 1992? (4) Whether the grant of variation in the facts and circumstances of the case would amount to the grant of fresh permit? If so, whether the variation could be granted on a scheme route? 9. Point No.1: It cannot be a general rule of law that in all cases the delay would be of pivotal importance to deny the relief under Article 226 of the Constitution of India. The issue of delay is only a rule of practice and not to become a rule of limitation. Of course, utmost expedition is a sine quo non for a relief under Article 226 of the Constitution of India. In the normal course, the party approaches the Court must be diligent and must explain the delay to the satisfaction of the Court. The power of the Court to entertain the writ petition even if there is considerable delay is well recognised. However, the discretion that could be exercised by the Court depends upon the facts and circumstances of each case. The discretion must be exercised in favour of the State or the State Transport Corporation, as in this case, if the public interest so warrants. That apart, in case of challenge to any order on the ground that such order is against the provisions of the statute, the challenge cannot be rejected solely on the ground of delay. 10. Keeping the above general principles in mind, the issue relating to the delay must be considered. A part of the route in question overlaps the scheme route and the appellant-Corporation is operating on the said route. The grant of permit or variation is not permissible on such scheme route. The route also is covered by inter-state agreement both by the https://hcservices.ecourts.gov.in/hcservices/ State of Tamil Nadu and the State of Andhra Pradesh. In the inter-state agreement only 48 singles were included and the grant of two singles to the operator had resulted in addition to the above 48 singles. Hence the two additional singles with one more vehicle was outside the scope of the inter-state agreement. Of course, the variation was granted under the old Act by the State Transport Authority, Andhra Pradesh and the same could not be implemented due to the judgment of the Supreme Court in Pandiyan Roadways case (supra) holding that in the scheme route, no permit could be granted. The variation granted by the State Transport Authority, Andhra Pradesh would be operational only when it is countersigned by the State Transport Authority, Tamil Nadu, as the route in question is covered by the inter-state agreement. By the time the said application came to be considered, the new Act came into force with effect from 1.7.89. Of course, the application was rejected by the State Transport Authority, Tamil Nadu on 26.4.90, but was allowed by the State Transport Appellate Tribunal on 5.12.90. Even thereafter, the order of the Appellate Tribunal was not implemented, till the order passed by the State Transport Authority granting counter-signature was made on 23.8.2000. In effect, the variation granted by the State Transport Authority, Andhra Pradesh on 25.6.85 was implemented only on 23.8.2000, and that will be the relevant date to find out the delay to approach the Court. Of course, Mr.M.Palani, the learned counsel for the operator has submitted that inasmuch as Pattukkottai Azhagiri Transport Corporation Ltd., did not make any objection under Section 57(3) of the old Act, the appellant- Corporation, which stepped into the shoes of Pattukkottai Transport Corporation Ltd., cannot question the variation. We would be discussing the said contention while we answer the point no.2, but for the purpose of consideration of the delay, though Pattukkottai Azhagiri Transport Corporation Ltd., could have made objection for the grant of variation, that would not be a bar for the appellant to question the proceedings for counter-signature by the State Transport Authority, Tamil Nadu. As far as the appellant is concerned, admittedly, it came into existence in the year 1992 and is operating on the scheme route in question. The order of the State Transport Appellate Tribunal dated 5.12.90 was not made known to the appellant, presumably, as the appellant was not a party before the Tribunal. Only when the counter-signature was granted to the operator by the State Transport Authority, Tamil Nadu on 23.8.2000, the appellant came to know of the variation and as such, the counter-signature was in fact granted as per the order of the Appellate Tribunal dated 5.12.90. Only under the said circumstance, the writ petition came to be filed in the year 2000. In this context, it must be noticed that the order of the State Transport Authority, Tamil Nadu granting counter-signature was made on 23.8.2000 and the writ petition was filed on 28.8.2000, within a period of five days. As the law is settled as to the power of the Court to entertain a writ petition under Article 226 even in case of delay by taking note of the public interest, we are of the considered view that the writ petition ought not to have been rejected on the ground of delay. Further, the writ petition questions the legality of the very grant of variation itself. Mr.M.Palani, however, would rely upon the judgment of the Supreme Court in State of M.P. and others v. Nandlal Jaiswal and others reported in AIR 1987 SC 251. He drew our attention particularly to paragraph 23 to contend that where there is inordinate and unexplained delay and the third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action https://hcservices.ecourts.gov.in/hcservices/ complained of is unconstitutional or illegal. To appreciate the law declared by the Supreme Court in that judgment, the relevant paragraph needs the following extraction:- “Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction. We do not think it necessary to burden this judgment with reference to various decisions of this Court where it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is unconstitutional or illegal. Of course, this rule of laches or delay is not a rigid rule which can be cast in a straitjacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner. But such cases where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and far between. Ultimately it would be a matter within the discretion of the Court; ex hypothesi every discretion must be exercised fairly and justly so as to promote justice and not to defeat it.” In fact, to apply the principle referred to by the learned counsel for the operator, there must be atleast two pre-conditions namely, (1) the delay must be inordinate and unexplained; and (2) by virtue of inaction of a person to approach the Court in time and the third party rights are created during the intervening period, and the entertaining of the writ https://hcservices.ecourts.gov.in/hcservices/ petition would have an effect of inflicting not only hardship and inconvenience but also injustice to third parties. In our opinion, the ratio relied upon by the learned counsel for the operator is not applicable to the facts of this case, as we have held firstly that there is no delay in approaching the Court. Secondly, even if there is delay, the same has been properly explained and thirdly, by the grant of variation, the appellant is aggrieved and the hardship, if any, caused to the operator is irrelevant, as the very benefit of counter-signature was on the basis of the grant of variation that was impermissible in a scheme route. Hence, we hold that the writ petition filed by the Corporation should be entertained and disposed of on merits. 11. Point no.2: As far as the contention as to whether the appellant- Corporation would be disentitled to question the grant of variation, much reliance was placed on sub-sections (3) and (4) of Section 57 of the old Act. Section 57 relates to the procedure in applying for and granting permits. In terms of sub-section (3) of Section 57, on receipt of an application for stage carriage permit or a public carrier's permit, the Regional Transport Authority, among other things, shall publish the application or the substance thereof in the prescribed manner together with a notice specifying a date before which representations in connection therewith may be submitted and the date not being less than thirty days from such publication under sub-section (4) of Section 57. No representation in connection with the application referred to under sub- section (3) shall be considered by the Regional Transport Authority unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the person making such representation. In our considered view, under sub-section (4) of Section 57, it is mandatory for the authority to consider the objections, of course, made in terms of sub-section (3) of Section 57. As a necessary corollary, if the objections are not made in accordance with sub-section (3) of Section 57, such objections need not be considered. That does not mean that the appellant-Corporation, which was aggrieved by the grant of counter-signature, cannot question the order of the State Transport Appellate Tribunal which was the basis for the grant of counter-signature. Grant of variation under sub-section (3) by the State Transport Authority, Andhra Pradesh by itself would not become final till the counter-signature is made by the State Transport Authority, Tamil Nadu, and the appellant- Corporation would be certainly entitled to question the counter-signature in spite of the fact that there was no objection made in writing to the authority in terms of sub-section (4) of Section 57. In fact even in case when there are no objections for the grant of variation, there cannot be any vested right on the operator to seek for variation solely on the ground that there were no objections and the decision as to the variation could be taken by the authority independently, but the only requirement is that the said decision must be supported by reasons. Further, the issue in question is entirely not in respect of the variation granted by the State Transport Authority, Andhra Pradesh, but the order of the State Transport Appellate Tribunal in directing the State Transport Authority, Tamil Nadu to grant counter-signature. The issue must be approached keeping in mind that unless the variation granted by the State Transport Authority, Andhra Pradesh is counter-signed by the State Transport Authority, Tamil Nadu, the variation is not valid and consequently cannot be implemented. Even though the application for grant of counter- https://hcservices.ecourts.gov.in/hcservices/ signature was made under the old Act, in view of the new Act had come into force on 1.7.89 and the Appellate Tribunal had directed the State Transport Authority, Tamil Nadu to grant the counter-signature on 5.12.90, the power to grant counter-signature must be traced to Section 72 of the new Act, which relates to the grant of stage carriage permit. Any variation granted could be valid only after the counter-signature is made by the State Transport Authority, Tamil Nadu under Section 88 of the new Act. Hence we hold that the appellant-Corporation can maintain the challenge to the order of the State Transport Appellate Tribunal, even though no objection was filed by the Pattukkottai Transport Corporation Ltd., under Section 57(4) of the old Act. 12. Point No.3: Much was argued by Mr.M.Palani, the learned counsel as to the validation of the variation granted under the old Act in view of the enactment of the Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992 (Tamil Nadu Act 41 of 1992). There is no dispute as to the validity of the provisions of the Tamil Nadu Act 41 of 1992. The counsel would rely upon Section 10 of the said Act, which reads as under:- “10. Validation.-- Notwithstanding anything contained in Chapter V or VI including Section 98 of the Motor Vehicles Act, all proceedings taken for the grant of and all orders passed granting permits or renewal or transfer of such permits or any variation, modification, extension or curtailment of the route or routes specified in a stage carriage permit during the period commencing on the 4th day of June 1976 and ending with the date of the publication of this Act in the Tamil Nadu Government Gazette, shall, for all purposes be deemed to be and to have always been taken or passed in accordance with the provisions of this Act as if this Act had been in force at all material times.” A plain reading of the said section would show that only such of those proceedings taken for the grant of and all orders passed granting permits or