KERALA STATE ROAD TRANSPORT CORPORATION versus BABY P. P. & ORS.
[2018] 5 S.C.R. 747, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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KERALA STATE ROAD TRANSPORT CORPORATION
v.
BABY P. P. & ORS.
(Civil Appeal No. 5257 of 2018)
MAY 16, 2018
[KURIAN JOSEPH, MOHAN M. SHANTANAGOUDAR
AND NAVIN SINHA, JJ.]
 Motor Vehicles Act, 1988 – Chapter VI – ss.99, 100, 103 and
s.104 and its Proviso – Road Transport Service – Grant of temporary
permit to private stage carriage operators on notified routes – When
not permissible – Scheme notified by State for providing properly
coordinated passenger road transport services – Clause 4 of the
Scheme inter alia provided that the services to be operated by the
State Transport Undertaking (STU) along the notified route were to
the exclusion of private stage carriages operating in the said route
– Respondent no.1, private stage carriage operator sought
temporary permit under proviso to s.104 to run services for the
route Pallissery-Angamaly-Perumbavoor – Rejected by Regional
Transport Authority (RTA) – Held: Scheme formulated by the State
Government is a law by itself and holds the fort in all matters involving
permits – Since it partially excludes private stage carriage operators
on the notified route, the same is to be adhered to – No private
stage carriage operator can operate beyond the stipulations of the
scheme – Route from Angamaly to Perumbavoor is a notified route
– Thus, STU has exclusive right to ply its stage carriages – Proviso
to s.104 gives only a limited breath of life to the private sector, viz.,
only if the vehicles of STU do not operate on
the notified route as
per the scheme, temporary permits may be granted to the private
stage carriage operators – Undisputedly, more than 450 buses of
STU ply everyday on the notified route – Further, the Scheme does
not permit private stage carriage operators to overlap more than 5
kms or 5 % (whichever is less) of the route proposed by it – However,
respondent no.1 sought temporary permit for the route which
overlaps by 13 kms on the notified route – Such overlap is clearly
prohibited under the Scheme – Respondent no.1 does not fall within
the proviso to s.104– RTA was justified in rejecting the claim of
   [2018] 5 S.C.R. 747
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SUPREME COURT REPORTS
[2018] 5 S.C.R.
respondent no.1 – Road Transport Corporations Act, 1950 – s.3–
Motor Vehicles Act, 1939 – ss.68-C and 68-D.
Words & Phrases – ‘Intersection’ & ‘Overlapping’ –
Distinction between – Discussed – Motor Vehicles Act, 1988.
Interpretation of Statutes – Proviso vis-a-vis main Section –
Interpretation of – Discussed – Motor Vehicles Act, 1988 – s.104
and proviso.
Allowing the appeals, the Court
HELD: 1.1 The law governing the formulation of schemes
is found in Sections 99 and 100 of the Motor Vehicles Act, 1988.
Chapter VI of the Act deals with special provisions relating to
State Transport Undertaking (STUs). Preparation and publication
of proposals regarding road transport services of the STU has
been dealt with under Section 99. If the State Government is of
the opinion that for the purpose of providing efficient, adequate,
economical, and properly guaranteed road transport services in
relation to any area or route or operation thereto, these road
transport services should be run and operated by the STU to the
exclusion (complete or partial) of private stage carriage operators,
a proposal in the Official Gazette shall be published as provided
under Section 99. After considering the objections, if any, and
after giving an opportunity to the objectors or their
representatives and the representatives of the STU, the State
Government may approve or modify such proposals. The
approved or modified scheme will be published in
the Official
Gazette of the State Government, apart from newspapers, under
Section 100(3). After publication, the scheme shall be final and
the same is called “the approved scheme”. The area or the route,
to which the scheme relates, shall be called “Notified Area” or
“Notified Route”. Section 103 deals with the issue of permits by
the STU pursuant to the scheme, if approved. Section 104 relates
to the restrictions on grant of permits in respect of the notified
area or notified route.  [Paras 11, 12] [758-G; 759-F-H; 760-A-C]
1.2  Section 104 makes it amply clear that where a scheme
has been published under Section 100(3) of the Act in respect of
any notified area or notified route, grant of any permit on the
notified route or area is impermissible, except in accordance with
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the provisions of the scheme. However, the proviso clarifies that
wherever the STU has not sought any permit in respect of any
notified route or notified area in pursuance to the scheme, the
RTA (or STA, as the case may be) may grant a temporary permit
to any private stage carriage operator in respect of such notified
area or notified route, on the condition that such permit shall
cease to be effective on the issue of a permit to the STU in respect
of that area or route. The scheme formulated and published by
the State Government under Section 100 (3) of the Act holds the
fort in all matters involving permits. [Paras 15, 16] [761-A-C, D]
1.3  The proviso to Section 104 of the Act cannot be read
aloof from the main section. A plain reading of the proviso to
Section 104 makes it clear that temporary permits can be granted
to the private sector, wherever the STU does not operate its
service. However, the proviso is also subject to the stipulations
of the scheme, akin to the main section. Since the Scheme on
hand partially excludes private stage carriage operators on the
notified route, the same is to be adhered to. It is necessary in the
public interest that road transport services on notified routes
should be run and operated by the STU to the complete or partial
exclusions of private stage carriage operators. In a State where
the scheme has been published, subject to such scheme
formulated by the State, no private stage carriage operator can
operate beyond
the stipulations of the scheme. This also applies
to applications for temporary permits under the proviso to Section
104 of the Act. [Paras 17, 18] [762-F; 763-C-D]
1.4 The route from Angamaly to Perumbavoor is
undisputedly a notified route. The STU thus has the exclusive
right or monopoly to ply its stage carriages and obtain the required
permit as per the Scheme to the exclusion of private stage
carriage operators. The proviso gives only a limited breath of
life to the private sector, viz., only if the vehicles of the STU do
not operate on the notified route as per the scheme, in which
event temporary permits may be granted to the private stage
carriage operators. In the matter on hand, undisputedly, more
than 450 buses of the STU ply everyday on the notified route
which pass from Angamaly to Perumbavoor. It is not open for the
respondent no.1 to claim that the STU is not running sufficient
KERALA STATE ROAD TRANSPORT CORPORATION v.
BABY P. P. & ORS.
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buses from Palliserry to Perumbavoor via Angamaly. Admittedly,
Palliserry to Angamaly is not a notified route. The dispute between
the parties, thus, virtually relates to the route between Angamaly
to Perumbavoor and not the route between Palliserry to
Angamaly. Even otherwise it is not disputed that the STU is plying
8 trips from Palliserry to Perumbavoor via Angamaly. Apart from
the same, the private sector is operating sufficient number of
services from Palliserry to Angamaly. It is brought to the notice
of this Court by the STU that the STU may provide more buses if
required between Palliserry to Angamaly. Moreover, it is open
for the respondent no.1 to seek permission as per law before the
concerned authority and ply its buses on the non-notified route.
However, when it comes to operating on the notified route, that
is, in between Angamaly and Perumbavoor, the respondent no.1
cannot operate its services for more than 5 kms or 5% of its
route (whichever is less). Admittedly, part of the respondent no.1’s
route measuring 13 kms is between Angamaly and Perumbavoor,
and that entire patch of 13 kms overlaps the notified route. The
total route length applied for by the respondent no.1 is only 28
kms. The overlap thus, permitted on the notified route (in the
case on hand) as per the Scheme could only be 1.4 kms whereas
the respondent no.1 wants to overlap by 13 kms, i.e.
approximately 50% of his route, which is totally
impermissible
and the same is rightly objected to by the STU, particularly when
the STU is operating 452 buses (amounting to 770 trips) in a day
on the said route. [Paras 19, 20] [763-E-H; 764-B-D]
1.5 The Scheme is a law by itself and until it is varied
according to law, no private stage carriage operator has any right
to camouflage any device to obtain the permits. The new route
introduced by the respondent no.1 fuses a non-notified route (to
an extent of 15 kms) and a notified route (to an extent of 13
kms), totally measuring 28 kms. This is contrary to the approved
Scheme, since such newly introduced route by the respondent
No.1 overlaps with 13 kms of the notified route, which is prohibited
as per the Scheme. The RTA was justified in rejecting the claim
of the respondent no.1 seeking temporary permit on the notified
route, since the respondent no.1 has sought a temporary permit
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for the route which overlaps by 13 kms on the notified route;
such overlap is clearly prohibited under the Scheme.
[Paras 25-27] 768-B-C, E-F]
1.6  Moreover, overlapping to the extent of 5 kms or 5%
of the route of respondent no.1 (whichever is less), is only for
purposes of intersection under the Scheme. The intersection of
the notified route may not be the same as traversing and
overlapping with the route, because the prohibition under the
Scheme must apply to the whole or a part of the notified route,
and private stage carriage operators cannot be allowed to traverse
the same line in the guise of intersection. In this case, as the
stage carriage services of the respondent no.1 are to operate on
a notified route to an extent of 13 kms, it cannot be considered
an intersection. Intersection means “to cut across”. It is
permissible for any private stage carriage operator, under the
Scheme in question, to traverse on a notified route up to the
permissible limit as contemplated under the Scheme only for the
purpose of cutting across the notified route, and to proceed further
on a non-notified route. Only in such a case can the temporary
permit be granted. [Para 28] [768-G-H; 769-A-C]
1.7  There is a clear distinction between overlapping and
intersection. The expression “intersection” is not defined in the
Act. The meaning of the word “intersection” as provided generally
in various dictionaries is “cutting across”. The word has to be
construed in the context
of the provision of the Act and scheme
of the Act. The “Scheme” intends total exclusion of private stage
carriage operators for a notified route except for “intersecting”
it is not open for the authorities to grant permits to private stage
carriage operators to operate on the notified route but may be
permitted merely to intersect within permissible limits. The
“intersection” thus, is not traversing the same line of travel
beyond permitted limits, but to cut across a notified route for its
onward journey. This exception is carved out only to avoid
hardships to travellers.  Any other view contrary to the above
view would amount to violating integrity of an approved Scheme.
An intersection is permissible, while an overlap is not.
[Para 29] [769-D; 770-B-D]
KERALA STATE ROAD TRANSPORT CORPORATION v.
BABY P. P. & ORS.
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 1.8  Except for exceptional circumstance of cutting across
the notified route, the scheme totally excludes private stage
carriage operators on the notified route. In case of overlapping,
such carrier would ply on the same line to travel on a portion of
the notified route, whereas in case of intersection, the private
stage carriage operator’s route only cuts across the notified route
for its onward journey. Since the scheme is a law, the same has to
be preserved and protected in public interest. Since it is not a
case of intersection as contemplated under Clause 5(c) of the
Scheme, and as the overlapping sought by the respondent no.1
is more than both 5 kms or 5% of his total route, the prayer of
respondent no.1 must be rejected. However, Clauses 5(c) and 6
of the Scheme provide that the private stage carriages would be
allowed to pick up and drop passengers in between any two places
on the route covered by the Scheme, provided that the route of
the private stage carriage overlaps the notified route maximum
to an extent of 5 kms or 5% of the length of its own route
(whichever is less).  [Paras 30, 31] [771-D-F]
1.9  The respondent no. 1 does not fall within the proviso
to Section 104 of the Act. Both parties admit that the appellant is
running sufficient number of buses on the notified route. Since it
is found that the Respondent no.1 is not entitled to ply stage
carriage buses on the notified routes, the temporary
permit
granted by the RTA on 23.02.2017, consequent to the order of
the STAT remanding the matter to the RTA, in favour of
respondent no.1 is set aside.  [Paras 32, 36] [771-G-H; 774-C]
1.10 In view of this discussion, the following answer
emerges:
(i) A temporary permit cannot be issued to a private stage
carriage operator to traverse on the notified route which is being
served by the STU, in excess of the permissible distance provided
under the scheme.
(ii)Under the facts of this case, it is not open for a private
stage carriage operator (the respondent no.1) to operate its
services by overlapping on a notified route for more than 5 kms
or 5% (whichever is less) of the route of the private stage carriage
operator (as specified under the Scheme) which is being served
by the STU. [Para 37] [774-C-E]
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Punjab Roadways v. Punjab Sahib Bus & Transport
Co. (2010) 5 SCC 235 : [2010] 5 SCR 256 –
distinguished.
Adarsh Travels Bus Service & Anr. v. State of U.P. &
Ors. (1985) 4 SCC 557– followed.
Gajraj Singh & Ors. v. State Transport Appellate
Tribunal and Ors. (1997) 1 SCC 650 : [1996] 6 Suppl.
SCR 172 ;  Dwarka Prasad v. Dwarka Das Saraf
(1976) 1 SCC 128 : [1976] 1 SCR  277 ; U.P. State
Roadways Transport Corporation v. Anwar Ahmed &
Ors. (1997) 3 SCC 191 : [1996] 7 Suppl. SCR 98 ;
Mysore State Road Transport Corporation v. Mysore
State Transport Appellate Tribunal (1974) 2 SCC 750 :
[1975] 1 SCR 615 ; Karnataka SRTC v. Ashrafulla
Khan (2002) 2 SCC 560 : [2002] 1 SCR 194 ;  U.P.
SRTC and Another v. Sanjida Bano and Others
(2005) 10 SCC 280 – relied on.
Black’s Dictionary of Law, 5th Edn. ; Law Lexicon,
Reprint Edn., 1987; Chambers English Dictionary;
Webster’s Dictionary, Vol. I ; Shorter Oxford English
Dictionary, Vol. I ; Concise Oxford Dictionary
– referred to.
Case Law Reference
(1985) 4 SCC 557
     followed
Para 11
[1996] 6 Suppl. SCR 172   relied on
Para 16
[1976] 1 SCR  277
     relied on
Para 17
[1996] 7 Suppl. SCR 98     relied on
Para 23
[1975] 1 SCR 615
     relied on
Para 29
[2002] 1 SCR 194
     relied on
Para 30
(2005) 10 SCC 280
     relied on
Para 32
[2010] 5 SCR 256
    distinguished
Para 34
KERALA STATE ROAD TRANSPORT CORPORATION v.
BABY P. P. & ORS.
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SUPREME COURT REPORTS
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5257
of 2018.
From the Judgment and Order dated 02.08.2017 of the High Court
of Kerala at Ernakulam in OPC No. 1827 of 2017
WITH
Civil Appeal Nos.5258 and 5259 of 2018.
V. Giri, Sr. Adv., Deepak Prakash, Yanmi Phazang, Sree Devi,
Subhash Chandran K.R, Raneev Dahiya, Kunal Singh, Sriram P.,
Nachiketa Vajpayee, Amith Krishnan, Advs. for the Appellant.
R. Basant, Sr. Adv., Santosh Krishnan, K. V. G. Nair, Nishe Rajen
Shonker, Ms. Anu K. Joy, Alim Anvar, Reegan S. Bel, Advs. for the
Respondents.
The Judgment of the Court was delivered by
MOHAN M. SHANTANAGOUDAR, J. Leave granted.
2. These appeals arise out of the judgment dated 02.08.2017 passed
by the High Court of Kerala at Ernakulam in O.P.(C) No. 1827 of 2017,
O.P.(C) No. 1784 of 2017 and O.P.(C) No. 581 of 2017 dismissing the
writ petitions and consequently confirming the order dated 11.01.2017
passed by respondent no.5 herein, the State Transport Appellate Tribunal
(hereinafter referred to as ‘STAT’) in M.V.A.R.P No. 53 of 2016.
Therein, the STAT had held that the Regional Transport Authority under
the facts of the case, may exercise power conferred on it by the proviso
to Section 104 of the Motor Vehicles Act, 1988 (hereinafter referred to
as ‘the Act’) to grant temporary permits.
3. The State of Kerala vide G.O. (P) No.42/2009/Tran. dated
14.07.2009 notified a new scheme in exercise of its powers conferred
by Section
100 of the Act for the purpose of providing convenient,
adequate, economical, and properly coordinated passenger road transport
services. As per the said Scheme, the route of Kottayam-Kozhikode
was made a notified route. Clause 4 of the said Scheme interalia provides
that the services to be operated by the State Transport Undertaking
(hereinafter referred to as ‘STU’) along the notified route were to the
exclusion of private stage carriages operating in the said route. Clause 4
of the said Scheme reads thus:
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4. From the aforementioned clause, it is clear that the permits
which were already issued to the private sector prior to 09.05.2006 will
be allowed to continue until the date of expiry of the respective permits.
Thereafter, regular permits will be granted to them. However, as and
when the STU applies for introducing a new service on the route, the
corresponding number of existing private stage carriage permits in the
said route, whose permits expire first after the filing of the application by
the STU, shall not be renewed. Meaning thereby, the services to be
operated by the STU along the notified route were to the exclusion of
private stage carriages if the STU operates on the same route. If the
STU has not applied for a permit, then the permits issued in the private
sector prior to 09.05.2006 will continue until the date of expiry, following
which regular permits will be granted. The temporary permits issued
after 09.05.2006, on the notified route would be in operation, only until
the STU operates on the same route with new services. Clauses 5(c)
and 6 of the Scheme read thus:
“4.
Whether the services are to 
be operated by the State 
Transport Undertaking to 
the 
exclusion 
of 
other 
persons or otherwise. 
Yes, the permits
issued in the 
private 
sector 
on 
or 
before 
9.5.2006 will 
be allowed to 
continue till the dates of expiry of 
the respective permits. Thereafter 
regular permits will be granted to 
them.  When the State Transport
Undertaking 
applies 
for 
introducing new services in the 
above 
routes, 
corresponding 
number of existing private stage 
carriage permits in the said routes 
whose permits expire first after 
filing application by the State 
Transport Undertaking shall not 
be renewed.  As regards permits 
issued after 09.05.2006 temporary 
permits alone shall be issued 
afresh on expiry in these routes or 
any portion thereof till such time 
the State Transport Undertaking 
replaces with new services.  The 
decision of the State Transport 
Undertaking to apply for permits 
to replace the existing Stage 
C arriages as above shall be taken 
by the Chief Executive of the 
State Transport Undertaking.” 
KERALA STATE ROAD TRANSPORT CORPORATION v.
BABY P. P. & ORS. [MOHAN M. SHANTANAGOUDAR, J.]
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5. Clauses 5(c) and 6 of the aforementioned Scheme provide that
private services would be allowed to pick up and drop passengers between
any two places on the route covered by the Scheme, if and only if the
route of the private stage carriage overlaps the notified route maximum
to an extent of 5 kms or 5% of the length of its own route (whichever is
less) for purposes of intersection.
6. The appellant is a STU under Section 3 of the Road Transport
Corporations Act, 1950. The respondent no.1 in SLP(C) No.26954 of
2017 (namely Baby P.P contesting respondent in all these appeals), a
private stage carriage operator, submitted an application seeking a
temporary permit under the proviso to Section 104 of the Act before
respondent no. 2 herein, the Regional Transport Authority (hereinafter
referred to as ‘RTA’) to run services for the route Pallissery-Angamaly-
Perumbavoor. The total length of this route applied for by respondent
no. 1 is 28 kms. The RTA rejected the application filed by the respondent
no.1 on 22.12.2015 stating, interalia, that part of the route applied for
by the respondent no.1 from Angamaly to Perumbavoor is 13 kms in
length and it objectionably overlaps with the notified route of Kottayam-
Kozhikode beyond the permissible limit as contemplated by the Scheme
dated 14.07.2009. As against the order of the RTA, the respondent no.1
approached the STAT by filing M.V.A.R.P. No.53 of 2016 which came
to be
allowed in part on 11.01.2017, remanding the matter to the RTA to
“5 (c)
Whether it is proposed 
to allow other services to 
pick up or set down 
passengers between any 
two places on the route 
covered by the scheme. 
Yes, on the portion of the 
route permitted to operate as 
in clause 4 above. Permits 
will also be granted to 
private stage carriages of 
other routes permitting them 
to overlap 5 kilometre or 5 
percent of the length of their 
own routes, whichever is 
less on the notified routes, 
for purposes of intersection. 
6. 
The 
maximum 
and 
minimum 
number 
or 
trips to be provided in 
relation to each area or 
route 
by 
the 
State 
Transport 
Undertaking 
in the case of stage 
carriage.
As per traffic demand”
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consider the matter afresh and to exercise its power conferred under
the proviso to Section 104 of the Act.
7. Questioning the order passed by the STAT, the appellant herein
approached the High Court by filing O.P.(C) No. 1827 of 2017.
Respondent no. 1 in SLP(C) No. 32804 of 2017, a private stage carriage
operator, filed O.P.(C) No. 1784 of 2017. Respondent no. 1 in SLP (C)
No. 101 of 2018, another private stage carriage operator, also filed
O.P.(C) No. 581 of 2017. All these O.Ps. were heard together and came
to be dismissed on 02.08.2017 with the following observations:
“35.  Reckoning the legal principles mentioned above and the
factual situation revealed in this case, especially Ext. P8 scheme,
I find that the petitioners failed to establish a case that the 1st
respondent or any other private operator is not entitled to get a
temporary permit, overlapping on a notified route, by invoking
proviso to Section 104 of the Act.  State Transport Authority or
Regional Transport Authority, as the case may be, as a temporary
measure and until STU puts vehicles on the route, can grant
temporary permits to cater the need of travelling public.  It is the
bounden duty of the STU to cater the needs of the commuting
public and if it fails to fulfil obligations, the Government should
intervene and pass appropriate modifications/changes in the
scheme so as to provide amenities to the passengers.  It is for the
Government and the authorities to take stock of the
situation
periodically and reconsider the notification, if STU could not
discharge their obligations in the expected lines.  Till then, the
authorities may invoke power conferred on them by proviso to
Section 104 of the Act.
In the result, original petitions are dismissed confirming Ext.P5
order.”
8. Aggrieved by the judgment passed by the STAT, as well as the
judgment of the High Court, these appeals are presented. The issue
before this court in these appeals is as under:
• Can a temporary permit be granted to a private stage carriage
operator on a notified route (which is already being served by the
STU) for a distance that exceeds the permissible limit provided
under the scheme, that too not for intersecting but for merely
traversing and consequently overlapping its service on the notified
route?
KERALA STATE ROAD TRANSPORT CORPORATION v.
BABY P. P. & ORS. [MOHAN M. SHANTANAGOUDAR, J.]
f the 
ate as 
rmits 
d to 
s of 
them 
or 5 
 their 
er is 
outes, 
tion.
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In other words,
•  Under the facts of this case, is it open for a private stage carriage
operator (Respondent No.1) to operate the services overlapping
more than 5 kms or 5% of the route of the private stage carriage
operator (as specified under the Scheme) for the purpose of
traversing by overlapping on the notified route which is being served
by the STU, but not for purposes of intersection?
9. Mr. V. Giri, learned Senior Advocate appearing on behalf of
the appellant contended that no person other than the STU can operate
on the notified route except as provided in the Scheme; the proviso to
Section 104 of the Act is also subject to the Scheme; Clause 5(c) of the
Scheme makes it clear that respondent no.1’s route objectionably overlaps
with the notified route far beyond the permissible limit; the appellant is
plying a sufficient number of buses on the notified route in question as
on this day.
10. Mr. R. Basant, learned Senior Advocate appearing on behalf
of the respondent no.1 submitted that the Scheme does not render the
proviso of Section 104 of the Act otiose; temporary permits can be
granted when the route is unserved or underserved by STU; the appellant
has failed to prove that it was plying sufficient number of buses on the
route Palliserry-Angamaly-Perumbavoor for which the respondent no.1
has a claim for temporary permit; three temporary permits were issued
even after the scheme came into force in 2009. He
further drew the
attention of this Court to the fact that pursuant to the remand order of
the STAT, the RTA on 23.02.2017 has granted a temporary permit on
the route in question in favour of the respondent no. 1. But, the appellant
without questioning such order passed by the RTA, has merely questioned
the order of remand passed by the STAT before the High Court. Even
before this Court, the order granting temporary permit is not questioned.
11. The law governing the formulation of schemes is found in
Sections 99 and 100 of the Motor Vehicles Act. In this context, it is
relevant to note the observations of a Constitution Bench of this Court
in 
the 
case 
of 
Adarsh 
Travels 
Bus 
Service 
and
Anr. vs. State of U.P. and Ors. reported in (1985) 4 SCC 557, where it
highlighted the power of the State to make laws on the passage of motor
vehicles:
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“3. The right of the members of the public to pass and repass
over a highway including the right to use motor vehicles on the
public road existed prior to the enactment of the Motor Vehicles
Act and was not its creation. The State could control and regulate
the right for the purpose of ensuring the safety, peace and good
health of the public. As an incident of his right of passage over a
highway, a member of the public was entitled to ply motor vehicles
for pleasure or pastime or for the purpose of trade and business,
subject, of course, to permissible control and regulation by the
State. Under Article 19(6)(ii) of the Constitution, the State can
make a law relating to the carrying on by the State or by a
corporation, owned or controlled by the State of any particular
business, industry or service whether to the exclusion, complete
or partial, of citizens or otherwise. The law could provide for
carrying on of a service to the total exclusion of all the citizens; it
may exclude some of the citizens only; it may do business in the
entire State or a portion of the State, in a specified route or part
thereof. The word “service” has been construed to be wide enough
to take in not only the general motor service, but also the species
of motor service. There are no limitations on the State’s power to
make laws, conferring monopoly on it in respect of an area, and
person or persons to be excluded. All this is now well established
by the various decisions of this
Court.”
  (emphasis supplied)
12. Chapter V of the Act deals with the control of transport vehicles
whereas Chapter VI of the Act deals with special provisions relating to
STUs. As per Section 98 of the Act, the provisions of Chapter VI and
the rules and orders made thereunder shall have overriding effect,
notwithstanding any inconsistency contained in Chapter V or any other
law for the time being in force. Preparation and publication of proposals
regarding road transport services of the STU has been dealt with under
Section 99 of the Act. If the State Government is of the opinion that for
the purpose of providing efficient, adequate, economical, and properly
guaranteed road transport services in relation to any area or route or
operation thereto, these road transport services should be run and operated
by the STU to the exclusion (complete or partial) of private stage carriage
operators, a proposal in the Official Gazette shall be published as provided
under Section 99 of the Act.  Objections to the proposal will be invited
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before the State Government under Section 100(1) of the Act. After
considering the objections, if any, and after giving an opportunity to the
objectors or their representatives and the representatives of the STU,
the State Government may approve or modify such proposals. The
approved or modified scheme will be published in the Official Gazette of
the State Government, apart from newspapers, under Section 100(3) of
the Act. After publication, the scheme shall be final and the same is
called “the approved scheme”. The area or the route, to which the scheme
relates, shall be called “Notified Area” or “Notified Route”. Section 103
of the Act deals with the issue of permits by the STU pursuant to the
scheme, if approved. Section 104 of the Act relates to the restrictions on
grant of permits in respect of the notified area or notified route.
13. It is relevant to note that Chapter IV of the Motor Vehicles
Act, 1939 is analogous to Chapter V of the Motor Vehicles Act, 1988.
Chapter IV-A of the 1939 Act corresponds to Chapter VI of the 1988
Act. The sections contained in Chapter IV-A of the1939 Act are in pari
materia with the sections contained in Chapter VI of the 1988 Act. To
be more precise, Sections 99 and 100 of the 1988 Act are in pari materia
with Sections 68-C and 68-D respectively of the 1939 Act.
14. Before proceeding further, it would be relevant to note Section
104 of the Act along with its proviso, which reads
thus:
“104. Restriction on grant of permits in respect of a notified
area or notified route – Where a scheme has been published
under sub-section (3) of section 100 in respect of any notified
area or notified route, the State Transport Authority or the Regional
Transport Authority, as the case may be, shall not grant any permit
except in accordance with the provisions of the scheme:
Provided that where no application for a permit has been made
by the State Transport Undertaking in respect of any notified area
or notified route in pursuance of an approved scheme, the State
Transport Authority or the Regional Transport Authority, as the
case may be, may grant temporary permits to any person in respect
of such notified area or notified route subject to the condition that
such permit shall cease to be effective on the issue of a
permit to the State transport undertaking in respect of that
area or route.”
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15. A plain reading of Section 104 makes it amply clear that where
a scheme has been published under Section 100(3) of the Act in respect
of any notified area or notified route, grant of any permit on the notified
route or area is impermissible, except in accordance with the provisions
of the scheme. However, the proviso clarifies that wherever the STU
has not sought any permit in respect of any notified route or notified
area in pursuance to the scheme, the RTA (or STA, as the case may be)
may grant a temporary permit to any private stage carriage operator in
respect of such notified area or notified route, on the condition that such
permit shall cease to be effective on the issue of a permit to the STU in
respect of that area or route. It is needless to observe that respondent
no.1 claims such a temporary permit based on the proviso to Section 104
of the Act, contending that the STU is not operating its services on the
notified route.
16. It is by now well settled that the scheme formulated and
published by the State Government under Section 100 (3) of the Act
holds the fort in all matters involving permits.The scheme is a law by
itself, as observed by this Court in various judgments including the case
of Gajraj Singh and Others vs. State Transport Appellate Tribunal
and others reported in (1997) 1 SCC 650, wherein it is observed as
hereunder:
“51. After giving careful and anxious consideration to the respective
contentions, we find that there is some
force in the contention of
the respective counsel for the appellants. It bears repetition to
state that the approved scheme under the Repealed Act or in the
Act is a self-contained and self-operative scheme. It is a law by
itself. The schemes published under the Repealed Act, as held
earlier, are saved by Section 217(2)(a) of the Act. Therefore,
until they are modified or cancelled under Section 102, the scheme
should continue to be in operation in the notified area, route or
part thereof. The right to apply for and obtain permit in the notified
scheme was totally frozen to the private operators giving exclusive
right to the STU to apply for and obtain permits to run the stage
carriages or additional service under Section 101 of the Act on
the notified area, route or a part thereof and none else. With a non
obstante clause in Section 101, the right to apply for and obtain
temporary permits under Section 87 by private operators was taken
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away. There is no need for STU to obtain such permits as an
intimation to RTA concerned of its providing such additional service
on special occasions like fair or religious gatherings for conveyance
of passengers, is sufficient. Yet the scheme itself saved and
preserved the rights of the named existing operators in respect of
overlapping routes in the specified permits, subject to the corridor
restrictions of picking up and setting down the passengers en route
the prescribed prohibited route. They became entitled to run their
stage carriages subject to the law. Though, their permits are saved,
the named operators being private operators, Parliament appears
to have thought that there was no necessity to expressly retain in
Chapter VI itself their right of renewal as the same was already
provided in Section 81 of the Act corresponding to Section 68-
F(1-D) of Chapter IV-A of the Repealed Act. The reason appears
to be obvious. Every private operator falls within the field covered
by Chapter V of the Act. It would seem that Parliament is of the
view that the named operators, being saved under the schemes,
are entitled to apply for and obtain necessary permit or renewal
thereof to ply their stage carriages only on overlapped routes
subject to the corridor restrictions mentioned in the scheme itself.
It may be stated that we do not find any express indication of
their rights being taken away under the Act; nor do we find it
by
necessary implication in that behalf and to that effect. This view
does justice also to all concerned.”
              (emphasis supplied)
17. In light of this, it is to be noted that the proviso to Section 104
of the Act cannot be read aloof from the main section. A plain reading of
the proviso to Section 104 makes it clear that temporary permits can be
granted to the private sector, wherever the STU does not operate its
service. However, the proviso is also subject to the stipulations of the
scheme, akin to the main section. A Four-Judge Bench of this Court in
Dwarka Prasad vs. Dwarka Das Saraf, reported in (1976) 1 SCC
128, observed that the proviso cannot be read separately from the main
section, in the following manner:
“18.…A proviso must be limited to the subject-matter of the
enacting clause. It is a settled rule of construction that a proviso
must prima facie be read and considered in relation to the principal
matter to which it is a proviso. It is not a separate or independent
enactment. “Words are dependent on the principal enacting words,
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to which they are tacked as a proviso. They cannot be read as
divorced from their context” (1912 AC 544). If the rule of
construction is that prima facie a proviso should be limited in its
operation to the subject-matter of the enacting clause, the stand
we have taken is sound. To expand the enacting clause, inflated
by the proviso, sins against the fundamental rule of construction
that a proviso must be considered in relation to the principal matter
to which it stands as a proviso. A proviso ordinarily is but a proviso,
although the golden rule is to read the whole section, inclusive of
the proviso, in such manner that they mutually throw light on each
other and result in a harmonious construction.”
   (emphasis supplied)
18. Since the Scheme on hand partially excludes private stage
carriage operators on the notified route, the same is to be adhered to. It
is necessary in the public interest that road transport services on notified
routes should be run and operated by the STU to the complete or partial
exclusions of private stage carriage operators. In a State where the
scheme has been published, subject to such scheme formulated by the
State, no private stage carriage operator can operate beyond the
stipulations of the scheme. This also applies to applications for temporary
permits under the proviso to Section 104 of the Act.
19. In the matter on hand, it is the case of the STU that it has
been running 452 buses (covering 770 trips) every day on part of
the
notified route, i.e. from Angamaly to Perumbavoor, wherein overlapping
of 13 kms is claimed. So far as the route from Angamaly to Perumbavoor
is concerned, the same is undisputedly a notified route. The STU thus
has the exclusive right or monopoly to ply its stage carriages and obtain
the required permit as per the Scheme to the exclusion of private stage
carriage operators. The proviso gives only a limited breath of life to the
private sector, viz., only if the vehicles of the STU do not operate on the
notified route as per the scheme, in which event temporary permits may
be granted to the private stage carriage operators. In the matter on
hand, undisputedly, more than 450 buses of the STU ply everyday on the
notified route which pass from Angamaly to Perumbavoor. It is not open
for the respondent no.1 to claim that the STU is not running sufficient
buses from Palliserry to Perumbavoor via Angamaly. Admittedly,
Palliserry to Angamaly is not a notified route. The dispute between the
parties, thus, virtually relates to the route between Angamaly to
Perumbavoor and not the route between Palliserry to Angamaly.
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20. Even otherwise it is not disputed that the STU is plying 8 trips
from Palliserry to Perumbavoor via Angamaly. Apart from the same,
the private sector is operating sufficient number of services from
Palliserry to Angamaly. It is brought to the notice of this Court by the
STU that the STU may provide more buses if required between Palliserry
to Angamaly. Moreover, it is open for the respondent no.1 to seek
permission as per law before the concerned authority and ply its buses
on the non-notified route. However, when it comes to operating on the
notified route, that is, in between Angamaly and Perumbavoor, the
respondent no.1 cannot operate its services for more than 5 kms or 5%
of its route (whichever is less). Admittedly, part of the respondent no.1’s
route measuring 13 kms is between Angamaly and Perumbavoor, and
that entire patch of 13 kms overlaps the notified route. The total route
length applied for by the respondent no.1 is only 28 kms. The overlap
thus, permitted on the notified route (in the case on hand) as per the
Scheme could only be 1.4 kms whereas the respondent no.1 wants to
overlap by 13 kms, i.e. approximately 50% of his route, which is totally
impermissible and the same is rightly objected to by the STU, particularly
when the STU is operating 452 buses (amounting to 770 trips) in a day
on the said route.
21. The contention of the respondent no.1 is that the travelling
public could be inconvenienced
if the passengers travelling in the buses
of the respondent no.1 from Palliserry to Perumbavoor are asked to get
down at Angamaly. Such factors relating to inconvenience etc.
necessarily have to be taken into consideration by the concerned
authorities before publication of the proposal regarding road transport
services of the STU under Section 99 of the Act, by the State Government
under Section 100(1) of the Act when considering the objections to the
scheme, and thereafter either by the STU or by the Government when
inconvenience is experienced by the travelling public and brought to its
notice. As held by the Constitution Bench of this Court in case of
Adarsh (supra), the question is one of weighing the balance
between the advantages conferred on the public by the nationalisation
of the route Kottayam-Kozhikode against the inconvenience suffered
by the public by wanting to travel straight from Palliserry to Perumbavoor
via Angamaly.
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22. It is quite well known that under the guise of permits over
longer routes covering shorter notified routes, or overlapping parts of
notified routes, such permits are more often than not mis-utilized, since it
is well nigh impossible to keep a proper check at every point of the
route. If indeed there is any need for protecting the travelling public
from inconvenience, as was submitted by Mr. Giri, the STU and the
Government will make sufficient provisions in the Scheme itself to avoid
inconvenience being caused to the travelling public. In Adarsh (supra)
under similar circumstances, it was observed thus,
“7.…The question is one of weighing in the balance the advantages
conferred on the public by the nationalisation of the route C-D
against the inconveniences suffered by the public wanting to travel
straight from A to B. On the other hand it is quite well known that
under the guise of the so-called “corridor restrictions” permits
over longer routes which cover shorter notified routes or
“overlapping” parts of notified routes are more often than not
misutilised since it is well nigh impossible to keep a proper check
at every point of the route. It is also well known that often times
permits for plying stage carriages from a point a short distance
beyond one terminus to a point a short distance beyond another
terminus of a notified route have been applied for and granted
subject to the so-called “corridor restrictions” which are but mere
ruses or traps to
obtain permits and to frustrate the scheme. If
indeed there is any need for protecting the travelling public from
inconvenience as suggested by the learned counsel we have no
doubt that the State Transport Undertaking and the Government
will make a sufficient provision in the scheme itself to avoid
inconvenience being caused to the travelling public.”
“14.…We however wish to introduce a note of caution. When
preparing and publishing the scheme under Section 68-C and
approving or modifying the scheme under Section 68-D care must
be taken to protect, as far as possible, the interest of the travelling
public who could in the past travel from one point to another without
having to change from one service to another en route. This can
always be done by appropriate clauses exempting operators
already having permits over common sector from the scheme
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and by incorporating appropriate conditional clauses in the scheme
to enable them to ply their vehicles over common sectors without
picking up or setting down passengers on the common sectors. If
such a course is not feasible the State Legislature may intervene
and provide some other alternative as was done by the Uttar
Pradesh Legislature by the enactment of the Uttar Pradesh Act
27 of 1976 by Section 5 of which the competent authority could
authorise the holder of a permit of a stage carriage to ply his
stage carriage on a portion of a notified route subject to terms and
conditions including payment of licence fee. There may be other
methods of not inconveniencing through passengers but that is
entirely a matter for the State Legislature, the State Government
and the State Transport Undertaking. But we do wish to emphasise
that good and sufficient care must be taken to see that the travelling
public is not to be needlessly inconvenienced.”
  (emphasis supplied)
23. In the case of U.P. State Roadways Transport Corporation
vs. Anwar Ahmed and Others reported in (1997) 3 SCC 191, this Court
observed thus:
“6. In view of the settled legal position that once the scheme
has been approved and notified, right to ply stage carriages by
private operators on the notified area, routes or portions thereof is
totally frozen. Therefore, they have no right to claim any grant of
stage carriage, temporary or contract carriage permits
thereunder
on the said notified area, routes or portions thereof except to the
extent saved by the scheme with restrictions imposed
thereunder…”
“7. It would, therefore, be seen that where the scheme has been
published under sub-section (3) of Section 100 in respect of any
notified area or notified route, the State Transport Authority or
the Regional Transport Authority, as the case may be, shall not
grant any permit except in accordance with the provisions of the
scheme. Thus, the appellant-Corporation has the exclusive right
or monopoly to ply their stage carriages and obtain the required
permit as per the scheme. The proviso gives only a limited breath
of life, namely, until the Corporation puts the vehicles on the notified
routes as per the scheme, temporary permits may be granted to
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private operators. Thereby, it would be clear that temporary
inconvenience to travelling public is sought to be averted till the
permits are taken and vehicles are put on the route by the appellant.
Therefore, the temporary permits will have only limited breath of
life. Private operators are attempting to wear the mask of
inconvenience to travelling public to infiltrate into forbidden notified
area, route or portion thereof to sabotage the scheme. The permits
were taken by the appellant and the vehicles are put on the route
in terms of the scheme. Therefore, the direction given by the
High Court at the pain of contempt is obviously illegal. It is stated
by Shri V.R. Reddy, Additional Solicitor General, on instruction
that the appellant is prepared to take all the permits required on
the routes.
8. But the crucial question is whether a new route can be
introduced by fusing two notified routes and temporary permits
sought to be obtained on carved-out route? This device is obviously
impermissible to enter into frozen area or route or portion thereof
through backdoor. The scheme is law by itself and until it is varied
according to law, no private operator has any right to camouflage
any device to obtain temporary permits. Under these
circumstances, action taken by the respondents to obtain temporary
permits is obviously ultra vires and authorities have no jurisdiction
to grant such permits. The altered or modified routes are contrary
to the approved scheme,
since they have been occupied by two
notified routes and to be operated as per the scheme.”
                                                             (emphasis supplied)
24. From the aforementioned, it is clear that the temporary
inconvenience, if any, to the travelling public was to be avoided till the
permits were taken by the appellant and vehicles were made to ply on
the route by it. Since the appellant is running sufficient number of buses/
trips on the notified route, no inconvenience to the public is made out.
Private stage carriage operators generally would be attempting to wear
a mask to infiltrate into forbidden routes or areas or portions thereof,
under the pretext of inconvenience to the travelling public, to sabotage
the scheme.
25. The STAT impliedly interpreted the proviso to Section 104 of
the Act to mean that the competent authority would have the power to
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grant a temporary permit de hors the scheme. Such interpretation
deserves to be rejected, i.e., the interpretation that until the STU puts
vehicles on the newly carved out route fusing non-notified and notified
route, temporary permits may be granted to private stage carriage
operators. A new route cannot be introduced by fusing a non-notified
route with the notified route to seek a temporary permit on a carved out
route. This device is obviously impermissible to enter into a frozen area
or route or portion thereof, in excess of the limited permit under the
scheme, through a back door. The Scheme is a law by itself and until it
is varied according to law, no private stage carriage operator has any
right to camouflage any device to obtain the permits. The new route
introduced by the respondent no.1 fuses a non-notified route (to an extent
of 15 kms) and a notified route (to an extent of 13 kms), totally measuring
28 kms. This is contrary to the approved Scheme, since such newly
introduced route by the respondent No.1 overlaps with 13 kms of the
notified route, which is prohibited as per the Scheme. There cannot be
any dispute that there will not be any scope for grant of any permit in
that area or route covered by the Scheme, except what is specifically
permitted or provided under the Scheme itself.
26. In the matter on hand, the Scheme does not permit private
stage carriage operators to overlap more than 5 kms or 5%
(whichever
is less) of the route proposed by the private stage carriage operator, and
as the respondent no. 1 wants to run services overlapping by 13 kms, the
prayer is liable to be rejected.
27. Thus, the RTA was justified in rejecting the claim of the
respondent no.1 seeking temporary permit on the notified route, since
the respondent no.1 has sought a temporary permit for the route which
overlaps by 13 kms on the notified route; such overlap is clearly prohibited
under the Scheme. Since the STU is running hundreds of bus trips on
the part of the notified route i.e. from Angamaly to Perumbavoor, it is
not open for the respondent no.1 to seek a temporary permit covering
that distance.
28. Moreover, overlapping to the extent of 5 kms or 5% of the
route of respondent no.1 (whichever is less), is only for purposes of
intersection under the Scheme. As the proviso to Section 104 of the Act
is also subject to the Scheme, it is not open for any private stage carriage
operator including the respondent no.1 to claim a temporary permit for
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traversing and overlapping with the notified route to the extent of 13
kms. The intersection of the notified route may not, in our view, be the
same as traversing and overlapping with the route, because the prohibition
under the Scheme must apply to the whole or a part of the notified route,
and private stage carriage operators cannot be allowed to traverse the
same line in the guise of intersection. In this case, as the stage carriage
services of the respondent no.1 are to operate on a notified route to an
extent of 13 kms, it cannot be considered an intersection. Intersection
means “to cut across”. It is permissible for any private stage carriage
operator, under the Scheme in question, to traverse on a notified route
up to the permissible limit as contemplated under the Scheme only for
the purpose of cutting across the notified route, and to proceed further
on a non-notified route. Only in such a case can the temporary permit be
granted.
29. There is a clear distinction between overlapping and
intersection. The expression “intersection” is not defined in the Act.
Hence, in order to understand this distinction, the dictionary meaning of
the expression “intersection” deserves close scrutiny.
In Black’s Dictionary of Law, 5th edn., the word “intersection”
means: as applied to a street or highway means the space occupied by
two streets at the point where they cross each other. Space common to
both streets or highways, formed by continuing the curb lines.
In
the Law Lexicon, Reprint edn., 1987 “intersect” means as “to
cross; literally, to cut into or between; a word which imports the
intersection of one line with another”.
In Chambers English Dictionary, “intersection” means to cut
across: to cut or cross mutually; to divide into parts, v.i. to cross each
other; intersect appoint of intersection; intersection intersecting: the
point or line in which lines or surfaces cut each other (geom.): the set of
elements which two or more sets have in common (math.): a crossroad.
In Webster’s Dictionary, Vol. I, the word “intersection” is: as the
act of intersecting the point at which lines cut across each other (or the
line at which planes do so), a place where two roads cross each other
intersectional.
The Shorter Oxford English Dictionary, Vol. I defines
“intersection” as the action or fact of intersection; the place where two
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things intersect; chiefly geom.; the point (or line) common to two lines or
surfaces which intersect.
The Concise Oxford dictionary defines: Intersect means,
Divide by passing or lying across it; cross or cut each other.
A reading of the dictionary meanings thus, shows more than one
meaning for the word “intersection”.  But, it can be said that, meaning of
the word “intersection” as provided generally in various dictionaries
mentioned supra, is “cutting across”. However, in such a situation it
would be appropriate to keep in mind that the word has to be construed
in the context of the provision of the Act and scheme of the Act.  As we
find that the “Scheme” intends total exclusion of private stage carriage
operators for a notified route except for “intersecting” it is not open for
the authorities to grant permits to private stage carriage operators to
operate on the notified route but may be permitted merely to intersect
within permissible limits.  The “intersection” thus, is not traversing the
same line of travel beyond permitted limits, but to cut across a notified
route for its onward journey.  This exception is carved out only to avoid
hardships to travellers.  Any other view contrary to the above view
would amount to violating integrity of an approved Scheme.
An intersection is permissible, while an overlap is not. In Mysore
State Road Transport Corporation vs. Mysore State Transport
Appellate Tribunal, reported
in (1974) 2 SCC 750, this Court held as
follows:
“10. ... It is, therefore, apparent that where a private transport
owner makes an application to operate on a route which overlaps
even a portion of the notified route i.e. where the part of the
highway to be used by the private transport owner traverses on a
line on the same highway on the notified route, then that application
has to be considered only in the light of the scheme as notified. If
any conditions are placed then those conditions have to be fulfilled
and if there is a total prohibition then the application must be
rejected.”
***
“12. This Court has consistently taken the view that if there is a
prohibition to operate on a notified route or routes no licences can
be granted to any private operator whole route traversed or
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overlapped any part or whole of that notified route. The intersection
of the notified route may not, in our view, amount to traversing or
overlapping the route because the prohibition imposed applies to a
whole or a part of the route on the highway on the same line of
the route. An intersection cannot be said to be traversing the same
line, as it cuts across it.”
                                                                (emphasis supplied)
30. The expression “intersection”as observed by this Court in the
case Karnataka SRTC vs. Ashrafulla Khan reported in (2002) 2 SCC
560, has been employed only to provide a facility to private stage carriage
operators operating on a non-notified route to continue their onward
journey on a non-notified route by cutting across the notified route to the
extent permitted under the scheme. This exception is carried out only
with the avowed object of avoiding hardship to the travelling public.
Except for such exceptional circumstance of cutting across the notified
route, the scheme totally excludes private stage carriage operators on
the notified route. In case of overlapping, such carrier would ply on the
same line to travel on a portion of the notified route, whereas in case of
intersection,the private stage carriage operator’s route only cuts across
the notified route for its onward journey. Since the scheme is a law, the
same has to be preserved and protected in public interest.
31. Since it is not a case of
intersection as contemplated under
Clause 5(c) of the Scheme, and as the overlapping sought by the
respondent no.1 is more than both 5 kms or 5% of his total route, the
prayer of respondent no.1 must be rejected. However, we hasten to add
that (as mentioned supra) Clauses 5(c) and 6 of the Scheme provide
that the private stage carriages would be allowed to pick up and drop
passengers in between any two places on the route covered by the
Scheme, provided that the route of the private stage carriage overlaps
the notified route maximum to an extent of 5 kms or 5% of the length of
its own route (whichever is less).
32. At the cost of repetition, we must observe that the respondent
no. 1 does not fall within the proviso to Section 104 of the Act. The
appellant has been plying sufficient number of buses/trips on the notified
route as a STU. Both parties admit that the appellant is running sufficient
number of buses on the notified route. It was held by this Court in U.P.
SRTC and another vs. Sanjida Bano and others, reported in (2005)
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10 SCC 280, that irrespective of the number of buses and trips undertaken
by the STU, the fact that it is plying its vehicles on the notified route
precludes others from taking the benefit of the proviso to Section 104 of
the Act. The Court held thus:
“5.…Whether or not the number of buses and the trips operated
by the State transport undertaking were enough to cater to the
volume of need of the commuting public, is not germane to the
applicability of the proviso. The scheme provides for as many
permits as needed being lifted by the State transport undertaking.
The State transport undertaking was operating 36 trips on the
date of the order of the High Court and is now operating 40 trips,
as stated by the learned counsel for the appellants at the Bar.
However, the learned Senior Counsel for the respondents has
disputed the correctness of this statement and submitted that the
Secretary, Regional Transport Authority had found only 25 trips
being in operation. Be that as it may, we are not inclined to hold
that in spite of the appellant Corporation operating on the route
resort can be had to the proviso to Section 104 of the Act for
granting temporary permits.”
  (emphasis supplied)
33. Strangely, the Respondent No.1 sought to produce certain
documents before the Court, just about two days prior to the final
arguments. Such documents contained so called three temporary permits
granted in favour of three private stage
carriage operators on the notified
route subsequent to the scheme.  Relying upon such documents, Mr.
Basant argued that same concession as has been given to three private
stage carriage operators should be given in favour of the respondent
no.1 also. These submissions are rightly objected by Mr. Giri taking an
exception to the manner in which these documents were sought to be
produced two days prior to the final arguments; these documents were
not available on the record before the High Court or before the STAT.
Since opportunity was not available to the appellant to have its say on
the documents, he submitted that the said documents need to be ignored.
It is not clear from any of the record that such temporary permits
were granted and even if granted whether they have expired or not.
Even otherwise there was no opportunity for the appellant to have its
say on alleged permits. Hence, we do not propose to consider and
comment upon such documents produced by the contesting respondent.
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34.  Mr. R. Basant relied heavily on Punjab Roadways vs. Punjab
Sahib Bus & Transport Co., reported in (2010) 5 SCC 235, to make a
claim that temporary permits may be granted even when the STU has
applied for a permit. In that case, this Court held as under:
“34. The abovementioned provision states where a scheme has
been published under sub-section (3) of Section 100 in respect of
any notified area or notified route, the STA or the RTA as the
case may be, shall not grant any permit except in accordance
with the provisions of the scheme. An exception has been carved
out in the proviso to Section 104 stating, where no application for
permit has been made by the STU in respect of any notified area
or notified route in pursuance of an approved scheme, the STA or
the RTA, as the case may be, may grant temporary permits to
any person in respect of any such notified area or notified route
subject to the condition that such permit shall cease to be effective
on the issue of permit to the STU in respect of that area or route.
In our view same is the situation in respect of a case where an
STU in spite of grant of permit does not operate the service or
surrenders the permit granted or is not utilising the permit. In such
a situation it should be deemed that no application for permit has
been made by the STU and it is open to the RTA to grant temporary
permit if there is a temporary need. By granting regular permits
to the private operators the RTA will be
upsetting the ratio fixed
under the scheme which is legally impermissible.”
             (emphasis supplied)
35. Despite the strong submissions made on behalf of the
respondent no. 1, it remains that Punjab Roadways (supra) is
distinguishable from the present case on facts. In that case, the scheme
of the Punjab Government shared all routes on the national and State
highways in a specified ratio between STUs and private stage carriage
operators. The relevant authorities as well as the High Court held that
regular permits may be granted to private stage carriage operators where
the STU is not using its permit. However, this Court took exception to
the grant of “regular” permits as relief, as doing so would upset the ratio
contained in the scheme. Temporary permits would not upset the balance
and were hence preferable in a situation where the scheme mandated
that the routes be divided and utilized in a specific ratio. In the case on
hand, there is no requirement of division into specific ratios. We see no
reason to apply the findings in that case to the present scenario.
KERALA STATE ROAD TRANSPORT CORPORATION v.
BABY P. P. & ORS. [MOHAN M. SHANTANAGOUDAR, J.]
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SUPREME COURT REPORTS
[2018] 5 S.C.R.
36. The contention that the subsequent order of the RTA has
remained unquestioned, and the respondent no. 1 is therefore entitled to
operate his services on the notified route, cannot be accepted. Since the
order of the STAT remanding the matter to the RTA with a direction to
the RTA to exercise its power under the proviso to Section 104 of the
Act, which was confirmed by the High Court, is held to be bad by us in
this appeal, the consequent order of the RTA dated 23.02.2017 also needs
to be held illegal. Moreover, we have heard the matter in its entirety and
the said contention of respondent no.1, in our view, is too technical.  Be
that as it may, since we find that the Respondent no.1 is not entitled to
ply stage carriage buses on the notified routes, the temporary permit
granted by the RTA on 23.02.2017 in favour of respondent no.1 is set
aside.
37. In view of this discussion, the following answer emerges:
• A temporary permit cannot be issued to a private stage carriage
operator to traverse on the notified route which is being served by
the STU, in excess of the permissible distance provided under the
scheme.
• To rephrase, under the facts of this case, it is not open for a
private stage carriage operator (the respondent no. 1) to operate
its services by overlapping on a notified route for more than 5 kms
or 5% (whichever is less) of the route of the private stage carriage
operator (as specified under the Scheme)
which is being served
by the STU.
38. Accordingly, the judgment of STAT, the consequent order of
the RTA granting temporary permit to the respondent no. 1, as well as
the judgment of the High Court, are set aside. The appeals before us are
hereby allowed. Consequently, O.P.(C) No. 1827 of 2017, as preferred
by the appellant KSRTC, stands allowed. As regards the O.P.(C)
No. 1784 of 2017 and O.P.(C) No. 581 of 2017, the same order shall
govern their outcome.
Divya Pandey
                                                                             Appeals allowed.