Case ID: 1365

Judgment:
Civil Appeal Nos. 524 to 539 of 1961. Appeals by special leave from the judgment and order dated July 5	 1961	 of the Patna High Court	 in Misc. Judicial cases Nos. 670 to 675 of 1959. WITH Civil Appeal No. 434 of 1961. Appeal by special leave from the judgment and order dated August 8	 1960	 of the Patna High Court	 in Misc. Judicial Case No. 334 of 1960. A.V. Viswanatha Sastri and B.P. Jha	 for the appellants. (in C. As. 534 to 538 and 434 of 1961). B.P. Jha	 for the appellant (in C.A. No. 539 of 1961). Lal Narain Sinha	 L.S. Sinha and S.P. Verma	 for the respondents. December 1. The Judgment of the Court was delivered by HIDAYATULLAH	 J. The judgment in Civil Appeal No. 534 of 1961 will dispose of Civil Appeals Nos. 535 to 539 of 1961. In these appeals	 private operators of omnibuses challenge the orders of the Appeal Board of the State Transport Authority	 by which it set aside the renewal of the permits on certain routes granted by the South Bihar Regional Transport Authority	 Patna. The appellants held 730 previously stage carriage permits over certain routes and which were due to expire in December	 1958 or in January	 1959. They had applied for renewal of their permits under section 58(2) of the Motor Vehicles Act. Under a scheme framed and notified on July 8	 1957	 vide Notification No. P 2 203/57T/4794	 the route	 Gaya to Khijirsarai	 was notified under section 68D of the Motor Vehicles Act. The Rajya Transport	 Bihar	 was exclusively allowed to operate on that route. In Civil Appeals No. 535 to 538 of 1961	 the Rajya Transport	 Bihar	 filed objections against the renewal of the permits. In Civil appeals Nos. 534 and 539 of 1961	 no objections were filed. The route	 Gaya to Khijirsarai	 which may be called conveniently route 'AB ' formed part of routes	 on which the appellants were operating and in respect of which they had asked for renewal of their permits. The south Bihar Regional Transport Authority	 however	 renewed the permits of the appellants	 holding that route 'AB ' was different from the routes	 for which renewal was demanded. Against the orders of the Regional Transport Authority	 appeals were filed by the Rajya Transport	 Bihar in all the cases	 that is to say	 in those cases in which the Rajya Transport	 Bihar	 had objected	 and those in which it had not objected. While these appeals were pending	 the State of Bihar	 acting under section 3 of the (64 of 1950) notified on April 20	 1959 as follows: "No. R.T. Cor. 1/59 3090 In exercise of the powers conferred by section 3 of the Road Transport corporation Act	 1950 (LXIV of 1950)	 the Governor of Bihar is pleased to establish with effect from the 1st May	 1959 a Road Transport Corporation	 for the State of Bihar	 to be called	 the Bihar State Road Transport Corporation '. 731 2. The said Corporation shall with effect from the said date	 exercise all the powers and perform all the functions which are at present being exercised and performed by the Rajya Transport	 Bihar. By order of the Governor of Bihar. K. B. Sharma	 Dy. " At the hearing of the appeals	 the Government Advocate	 Mr. Lal Narain Sinha	 appeared for the Road Transport Corporation. Objection was taken to the competency of the appeals on two grounds. In those cases in which the Rajya Transport	 Bihar	 had not objected to the renewal of the permits before the Regional Transport Authority	 it was contended that it had no locus standi to file appeals. In those cases in which it had so objected	 the ground was that the Road Transport Corporation could not	 in law	 represent the Rajya Transport	 Bihar	 in the appeals filed by the latter. On merits	 it was contented that the order of the Regional Transport Authority that route ' AB ' though part of the routes for which renewal was asked	 was a different route	 and the State Corporation had an exclusive right to ply omnibuses on routes 'AB ' did not affect the rights of the appellants to ply their omnibuses on routes	 which were entirely different. The Government Advocate contended that	 on the analogy of the principle underlying O. 22	 Re. 10 of the Civil Procedure Code	 the Road Transport Corporation on which devolved the powers and functions of the Rajya Transport	 Bihar	 could prosecute the appeals. He also contended	 in the alternative	 that he was representing also the Rajya Transport	 Bihar	 and that the appeals were not defective. The Board accepted the argument of the Government Advocate	 and set aside the orders of renewal passed by the Regional Transport Authority. The appellants then filed petitions 732 under articles 226 and 227 of the Constitution challenging the order of the Board on many grounds. The High Court	 by its judgment dated July 5	 1961	 dismissed all the petitions. In the order under appeal	 the High Court considered the competency of the appeals	 and held that the Rajya Transport	 Bihar	 was competent to prosecute the appeals before the Appeal Board. In dealing with the question whether the Appeal Board was entitled to interfere with the order of the Regional Transport Authority at the instance of the Rajya Transport in those cases	 where the Rajya Transport had not filed objections under the Motor Vehicles Act	 the High Court held that it was not necessary to express an opinion on the correctness of the argument	 because the Regional Transport Authority was not competent to grant a renewal	 inasmuch as such a grant was a direct violation of the scheme approved by the State Government and published in the Official Gazette. On the merits	 the High Court was of opinion that under section 68F(2) (c) (iii)	 the Regional Transport Authority could curtail the length of the route covered by the permit	 and exclude the portion	 which overlapped a notified route. The present appeals have been filed against the order of the High Court	 with the special leave of this Court. These appeals thus fall into two groups. In one group are Civil Appeals Nos. 534 and 539 of 1961 and in the other are Civil Appeals Nos. 535 to 538 of 1961. In the former	 the grant of renewal of the permits has been made without any objection	 and in the latter	 in spite of the objections filed by the Rajya Transport. The competency of the appeals before the Appeal Board is involved in both the groups	 though on different grounds. The answer to the different objections is	 however	 the same. 733 In Abdul Gafoor vs State of Mysore	 the effect of notifying a scheme was considered by this Court	 and it was there stated that when a scheme has been notified under Chap. IVA of the Motor Vehicles Act	 and an application is made for the grant of a permit on a route notified under the scheme by a private operator	 the Regional Transport Authority has no option but to refuse the permit to the private operator	 if the State Transport Undertaking has either applied for a permit or has already been granted one. In all the present cases	 the State Transport Undertaking had already been granted a permit over route 'AB '	 and if the private operators	 that is to say	 the appellants	 were not entitled	 in law	 to the renewal of their permits for routes which embraced also route 'AB '	 then the Regional Transport Authority could not but refuse to renew the permits. It was observed in Abdul Gafoor 's case that the duty of the Regional Transport Authority was merely mechanical	 and that it was required to take note of routes which had been notified and to adapt its orders so as to be in conformity with the notified scheme. In view of the fact	 therefore	 that the scheme had been notified and route 'AB ' had already been granted to the Rajya Transport and/or the State Transport Undertaking	 the Regional Transport Authority was incompetent to renew a permit over a route embracing route 'AB '. The Regional Transport Authority not having done its duty under the law	 the Appeal Board was entitled	 when the record was before it	 to revise the order of the Regional Transport Authority	 even if the appeal was incompetent	 in view of the vast powers of revision under section 64A. That section	 omitting the provisos	 reads: "The State Transport Authority may	 either on its own motion or on an application made to it	 call for the record of any case in which an order has been made by a Regional 734 Transport Authority and in which no appeal lies	 and if it appears to the State Transport Authority that the order made by the Regional Transport Authority is improper or illegal	 the State Transport Authority may pass such order in relation to the case as it deems fit." The High Court came to the conclusion that it should not interfere	 in its discretionary powers under articles 226 and 227	 with the order of the Appeal Board	 because even if the appeal for some reason was incompetent	 the Appeal Board had the record before it	 and gave effect to the correct legal position arising from a notified scheme. The same view was expressed also in Samarth Transport Co. vs Regional Transport Authority	 Nagpur. In our opinion	 we should not interfere on this ground either. In this connection	 the difference between the two sets of cases arising from the fact whether the Rajya Transport	 Bihar	 had objected or not	 completely disappears. We are now concerned with the merits of the contention that where the scheme notifies	 as a route	 a part of a larger route operated by a private operator	 the two routes must be regarded as different	 and the private operator cannot be prevented from running his omnibuses on that portion of his route which is a different route	 although notified. Reliance is placed upon a decision of the Privy Council in Kelani Valley Motor Transit Co.	 Ltd.	 vs Colombo Ratnapura Omnibus Co.	 Ltd. There	 the Privy Council was concerned with two Ordinances promulgated in Ceylon intituled the Motor Car Ordinance (No. 45 of 1938) and the Omnibus Service Licensing Ordinance (No. 47 of 1942). By the first schedule	 para I of the latter Ordinance	 it was provided that if applications were made by two or more persons for road service licences in respect of the same route	 preference should be given to (a) an 735 application from a company or partnership comprising the holders of all the licences for the time being in force under the Motor Car Ordinance No. 45 of 1938	 authorising the use of omnibuses on such route	 and (b) an application from a company or partnership comprising the holders of the majority of the licences referred to in (a) above. Section 7	 sub section 1	 provides: "The issue of road service licences under this Ordinance shall be so regulated by the Commissioner as to secure that different persons are not authorised to provide regular omnibus services on the same section of any highway: Provided	 however	 that the Commissioner may	 where he considers it necessary to do so having regard to the needs and convenience of the public	 issue licences to two or more persons authorizing the provision of regular omnibus services involving the use of the same section of a highway	 if	 but only if (a) that section of the highway is common to the respective routes to be used for the purposes of the services to be provided under each of the licences	 but does not constitute the whole or the major part of any such route." The real question in the case was whether the appellant there could take into account for the purpose of the first schedule	 six omnibuses which had been licenced for the route	 Panadura to Badulla via Colombo and the low level road. Panadura is 16 miles along the coast to Colombo and thence from Colombo to Ratnapura is 50 miles and from Ratnapura to Badulla	 a further 80 miles. It was clear that the route from Panadura to Badulla was not the same or substantially the same route as the route	 Colombo to Ratnapura; but if a licence for an omnibus on the route	 Panadura to 736 Badulla	 was one authorising the use of the omnibus on the route	 Colombo to Ratnapura	 then six omnibuses plied by the appellant could be taken into account to turn the scale between the parties. Sir John Beaumont in expounding the meaning of the word "route" observed as follows: "If 'route ' has the same meaning as 'highway ' in the Ordinance this argument must prevail	 since admittedly an omnibus running on the highway from Panadura to Badulla will pass over the whole of the highway between Colombo and Ratnapura	 but in their Lordships ' opinion it impossible to say that 'route ' and 'highway ' in the two Ordinances are synonymous terms. . A 'highway ' is the physical track along which an omnibus runs	 whilst a 'route ' appears to their Lordships to be an abstract conception of a line of travel between one terminus and another	 and to be something distinct from the highway traversed. " This distinction between "route" and "road" is relied upon by the appellants to show that the notified route	 which we have called 'AB ' was a different route from the routes for which renewal of permits was demanded	 even though route 'AB ' might have been a portion of the "road" traversed by the omnibuses of the appellants plying on their "routes. " The distinction made by the Privy Council is right; but it was made with reference to the words used in the Ordinances there under consideration. The question is whether a similar distinction can be made in the context of the Motor Vehicles Act. Mr. Viswanatha Sastri appearing for the appellants took us through sections 42 to 57 of the Motor Vehicles Act and drew our attention to those in which the word "route" has been used	 contra distinguished from the word "area"	 and contended that everywhere the word "route" is used in the sense of a notional line between two 737 termini running a stated course	 and is used in contradistinction to what may be conveyed by the word "area ". In Kondala Rao vs Andhra Pradesh State Road Transport Corporation	 this court	 in dealing with the scheme of the Motor Vehicles Act	 declined to make any such distinction between "route" and "area". This Court	 speaking through Subba Rao	 J.	 observed at p. 93: "Under section 68C of the Act the scheme may be framed in respect of any area or a route or a portion of any area or a portion of a route. There is no inherent inconsistency between an 'area ' and a 'route '. The proposed route is also an area limited to the route proposed. The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area within the meaning of section 68C." In any event	 under section 68C it is provided that a scheme may notify a route or an area or a portion of a route or a portion of an area	 and the exclusion of the private operators from the whole route or the whole area or a part of the route or a part of that area	 as the case may be	 may be either complete or partial	 and under section 68F(2) (c) (iii)	 the Regional Transport Authority may modify the terms of any existing permit so as to "curtail the area or route covered by the permit	 in so far as such permit relates to the notified area or notified route ". This means that even in those cases where the notified route and the route applied for run over a common sector	 the curtailment by virtue of the notified scheme would be by excluding that portion of the route or	 in other words	 the " road " common to both. The distinction between " route " as the notional line and " road " as the physical track disappears in the working of Chap. IVA	 because you cannot curtail the route without curtailing a portion of the road	 738 and the ruling of the Court to which we have referred	 would also show that even if the route was different	 the area at least would be the same. The ruling of the Judicial Committee cannot be made applicable to the Motor Vehicles Act	 particularly Chap. IVA	 where the intention is to exclude private operators completely from running over certain sectors or routes vested in State Transport Undertakings. In our opinion	 therefore	 the appellants were rightly held to be disentitled to run over those portions of their routes which were notified as part of the scheme. Those portions cannot be said to be different routes	 but must be regarded as portions of the routes of the private operators	 from which the private operators stood excluded under section 68F (2)(c)(iii) of the Act. The decision under appeal was	 therefore	 correct in all the circumstances of the case. This leaves over for consideration Civil Appeal No. 434 of 1961. There	 the question which arose was decided in the same way in which we have disposed of the other appeals on merits. Ramaswami	 C.J.	 and Kanhaiya Singh	 J.	 referred to an earlier decision (M.J.C. No. 354 of 1960 decided on May 13	 1960) given by the Chief Justice and Chaudhuri	 J.	 in which they had applied the Privy Council case	 and made a distinction between a route which was longer than the notified route	 though running for part of the way along the notified route and the notified route. In the judgment from which Civil Appeal No. 434 of 1961 arises	 the learned Chief Justice has declined to follow his earlier ruling which	 he considers	 was given perincuriam	 because the provisions of section 68 F(2)(c)(iii) of the Motor Vehicles Act were not taken into account. After considering the matter in the light of that section	 the Divisional Bench has reached the same conclusion as we have	 and along almost the same line of reasoning. In view of what we have said in Civil Appeal No. 534 of 1961	 Civil Appeal No. 434 of 1961 must also fail. 739 In the result	 the appeals are dismissed	 but in the circumstances of the case	 we make no order about costs. Appeals dismissed.

Summary:
Under a scheme framed and notified under the Motor Vehicles Act a certain route was notified under section 68D of the Act and the Rajya Transport	 Bihar was exclusively allowed to operate on that route. The said notified route formed part of routes on which the appellants were operating	 and in respect of which they had asked for renewal of their permits. The Rajya Transport	 Bihar filed objections against the renewal of the permits in some cases but in other case no objection was filed. The question which arose for decision was whether the permits of the appellant could be renewed by the Regional Transport Authority. The appellants contended that as the notified route formed part of a larger route operated by a private operator	 the two routes must be regarded as different route	 and the private operator could not be prevented from running his omnibuses on that portion of his route	 which was a different route	 although notified. ^ Held	 that as decided by this Court in Abdul Gafoor 's case	 the Regional Transport Authority had no option but to refuse the permit to the private operator	 if the State Transport Undertaking had either applied for a permit or had already been granted one. Abdul Gafoor vs State of Mysore	 A.I.R. 1961 S.C. 1956	 followed. If the Regional Transport Authority did not do its duty under the law the Appeal Board was entitled	 when the record was before it	 to revise the order of the Regional Transport Authority under its revisional powers as provided in section 64A of the Act	 even if the appeal was incompetent. Samarth Transport Co. vs Regional Transport Authority Nagpur	 ; 	 followed. 729 In the present case the appellants were not entitled to run over those portions of their routes which were notified as part of the scheme. Those portions could not be said to be different routes	 but must be regarded as portions of the routes of the private operators	 from which the private operators stood excluded under section 68F (2) (c) (iii) of the Act. Kelani Valley Motor Transit Co. vs Colombo Ratnapura Omnibus Co.	 and Kondala Rao vs Andhra Pradesh State Road Transport Corporation	 A.I.R. 1961 S.C. 82	 considered.