Case: Mysore State Road Transport Corporation Vs. Mysore Revenue Appellate Tribunal &amp; Others

1. There are twenty two appeals by Special leave together with thirteen connected special leave petitions involving a common question of law for decision before us. This question arises out of three approved schemes, which may be called the Anekal Scheme dated, the Gulbarga Scheme dated, and the Bangalore Scheme dated6 0, for the nationalisation under Chapter IVA of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act), of transport services on certain routes lying within the State of Mysore. But, parts of these intrastate routes overlapinterstateroutes over which private transporters were granted permits and then their renewals by the State Transport authorities to ply their vehicles. The Mysore State Road Transport Corporation objects to these permits in so far as they cover overlapping portions of intrastate routes. The common question of law which arises may be formulated as follows:"Can a permit be granted to ane Transport Operator for the whole of his route despite the fact that a part of the route overlaps a part of a notifiede route" ?

Court's reasoning:
3. The power of the State Transport Undertaking to prohibit the use of any portion of a route bye operators has not been questioned before us. Nevertheless, it may be pertinent to point out that this Court thus indicated in Saghir Ahmed &Anr. v. State of U.P. &rs., ([1955] 1 S.C.R. 707, 717.) the nature of the right of the public to use public roads (at page 717):"But the right of the public to use motor vehicles on the public road cannot, in any sense, be regarded as a right created by the Motor Vehicles Act. The right exists anterior to any legislation on this subject as an incident of public rights over a highway. The State only controls and regulates it for the purpose of ensuring safety, peace, health and good morals of the public. Once the position is accepted that a member of the public is entitled to ply mother vehicles on the public road as an incident of his right of passage over a highway, the question is really immaterial whether he plies a vehicle for pleasure or pastime or for the purpose of trade and business. The nature of the right in respect of the highway is not in any way affected thereby and we cannot agree with the learnedl that the user of a public road for purposes of trade is an extraordinary or special use of the highway which can be acquired only under special sanction from the State".It is enough for the purpose of the cases before us to note the distinction between the right to use a road which may be a part of a notified "route" and the right to ply motor vehicles on hire upon a , .route" for which a permit has to be obtained under the Act. Notification of a route under a scheme prevents issue of permits contrary to the scheme for the route. Assuming for the purposes of the cases before, thatthe State Transport Undertaking can totally excludeinterstateprivate operators from using any part of a notified route, a scheme which has that effect must, at least, make the intention to do that clear before it can prevent the exercise of another wise legal right to ply motor vehicles for hire on a public highway subject to regulation of this kind of user by permits issues under the Act4. As each scheme of nationalisation is to b e prepared in public interest, Section 68C requires the State Transport Undertaking to give particulars "of the nature of services proposed to be rendered by it". A distinction is made between notification of an "area" and of a "route". An area, which has to be notified under Section 2(i) of the Act, may cover a number of routes. A route, as defined by the insertion of (28A) made by the Act 56 of 1969, in Section 2 of be Act, is "a line of travel which specifies thehighway which may be traversedby a motor vehicle between one terminus and another". Whatever may have been the meaning of the word "route" before this insertion, it appears to us that, after this clarification, a route is not merely the physical surface covered by thehighwayto be traversed, but the abstract concept of "a line of travel", which connects one terminus with another, has also been introduced into the legal definition of a , .route". The two concepts are now so interlined that a route would not be properly indicated by merely specifying thehighwaywhich may be traversedwithout giving its two terming. And, a differencee two terming will make two routes different even if there is an overlapping surface of the road common to routes. In other words, the two terming are an essential part of the concept of a route. Notification of routes takes place for purposes of nationalisation of transport services on the routes. The routes are not n ationalised as physical surfaces of notified areas reserved for use by State owned vehicles only, but what is nationalised is the provision of certain transport services on those routes.Unless a scheme clearly indicates that the user of every portion of ahighwaycovered by an intrastate notified route is prohibited also to aninterstatemotor vehicle operator, who really plies on a different " route" inasmuch as its termini are bound to be different from those of an intrastate route, theinterstateoperator may not be completely debarred from the user of the overlapping part of an intrastate route. A mere physical overlapping of the two may not be enough to excluder the privateinterstateoperatorsby any necessary implication. If the intention is to exclude such user by an operator of another route a part of whichoverlaps anotified route,thatintention must be made, clear and unequivocal by the scheme in order to have9. Although, the actions of the Transport authorities and the conduct or a concession of the Manager of the Corporation may be relevant in considering whether a scheme was so framed as to clearly convey to the officials of the Corporation and to the, Transport authorities concernedthatit was a scheme of total prohibition extending to even user of any portion of an overlapping notified route by an interstate operator, yet, the real question to be considered is whether the scheme itself in each case, on the contents of it and the language employed by the framers of it, warrants total exclusion of the kind contended for before us on behalf of the Corporation.It is truethatthis Court does not ordinarily interfere with the discretion of the High Court to refuse to allow a question to be raised for the first time in arguments before it. Bu t, it is pointed outthatthe question raised before the High Court and argued before us is one of jurisdiction or power of the Transport authorities which goes to the root of the case sothatthe High Court should have permitted it to be raised and decided it. We findthatthe High Court did, albeit indirectly, consider the question by holdingthatthe schemes were ambiguous and did not rule out the interpretationthatthey were not schemes of total prohibition as the schemes could and should have done ifthatwas intended. The High Court had also correctly made observations indicating, where such an intention of total prohibition of even the case of a portion of the notified route is present, the intention must be communicated in clear enough language so as not to leave the transport authorities in any doubt as to what they are to enforce. And, as we have granted special leave on this very question and have heard arguments on it, we will consider the question briefly and not dispose of the cases before us simply on the groundthatthe question should have been raised at an earlier. stage on behalf of the appellant Corporation.We will, therefore, examine the contents of each o f the three approved schemes in which the preamble and clauses 3 to 7 have a special bearing on the question under consideration11. In the Gulbarga scheme, the preamble statesthatapproval is given, to the originally published proposals subject to certain modifications, One of the modificationst thewords "or any portion thereof wherever they appear in column 2 of the, statement appended to the scheme published by the General Manager shall be deletedWe, therefore. thinkthatthe contentionthatinterstateoperatorswere apparently notmeant tobe denied the mere use of the overlapping portions of routes covered by this scheme is well supported. In fact, this is the more reasonable inference. Similarly, t he appended statements of the Gulbarga scheme showthatthe term "route" is used in the scheme for services between two termini andthatpersons merely using portions of the route while traveling between other termini are not totally prohibited the user of the overlapping route. Lastly, as regards the Bangalore scheme, the case of the appellant Corporation may, seem better inasmuch as the words used there are: "the complete exclusion of all otheroperatorsexcluding t he intermediate routes". But, even here, the exclusion appears to be only ofoperatorsproviding services between the termini mentioned there and not merely using overlapping portions of the notified routes incidentally. If the exclusion of those using overlapping portions of the surface of the,highwaycommon to two different routes was also really intended, they should have been named in the appended statement and the numbers of their stage carriages should have been give n. No explanation is forthcoming for this omission. Therefore, the interpretation of the three schemes advanced on behalf of theinterstateoperatorsis more reasonable. In any case, if the intention was really to exclude even the user of the overlapping portions of notified routes byinterstate, we do not see why the State Transport Undertaking should have waited for so long and not modified the scheme, as provided by Section 58E of the Act, and made its intention clear instead of allowing litigation over this issue for such a long time17. Whatever may be saidt thecorrectness of the decision of this Court in Nilkanth Prasads case (supra) in the context of the scheme before this Court for consideration inthatcase and the provisions of the Act as they stood then, we do not thinkthatthe ratio decidendi ofthatcase is applicable here. Upon the contents of the schemes before us for interpretation we findthatonlyoperatorsnamed therein or those who seek to provide "services" upon the routes mentioned in the schemes, in the sensethatthey carry passengers traveling from one place to another situatedonlyupon the notified routes, could be totally excluded from using thes which the notified routes cover. We think