Writ Petition Nos. 2723-24 of 1991

20th November, 2012

Petitioner Counsel: Mr. G.S. Hegde
Respondent Counsel: Mr. R.M. Patne

Cases Cited:
M/s Adarsh Travels Bus Service Vs. State of U.P., AIR 1986 SC 319 [Para 5,8]

JUDGMENT

-Both these Petitions are part heard. Mr.Hegde learned Counsel for the Petitioner and Learned AGP for Respondent nos. 1 and 2 have completed their arguments in the first half of 19.11.2012. As nobody appeared for contesting Respondents, matter was adjourned to second half. Nobody appeared in the second half on 19.11.2012. Today again, there is no appearance for the contesting Respondents.

2. Learned AGP who has supported the case and cause of the Petitioners has pointed out that the impugned order passed in favour of the contesting Respondents has been stayed by this Court on 19.8.1991 and that interim order holds the field even today. According to learned counsel for the Petitioner and the learned AGP the Respondent no.3 has therefore lost interest in the matter.

3. Challenge in both these Petitions is to the order passed by the State Transport Appellate Tribunal on 3.5.1991 whereby it has allowed the Appeals filed by respective Respondent no.3 and held that their Applications for grant of permit to Maxi-cab is maintainable and Application is held not barred in view of 1973 Scheme framed in favour of the Petitioner-MSRTC.

4. Petitioners before this Court is a statutory Corporation constituted under the Road Transport Corporation Act and Respondent no.2-State Transport Authority is the permit issuing Authority under the provisions of Motor Vehicles Act,1988. Respondent no.3 is an Operator who had applied for permit to ply Maxi-cab and that Application was rejected by the Respondent no.2 because of the 1973 scheme framed under Chapter VI of the M.V.Act, 1988. Said order of the Respondent no.2 was then questioned by the Respondent no.3 in an Appeal before the Appellate Authortiy functioning under the Respondent no.1 and that Appeal has been allowed by the impugned Order on 3.5.1991.

5. Mr.Hegde in this background has invited attention to the relevant provisions of the Scheme under which the Petitioner is operating stage carriage and contract carriage services in the entire State of Maharashtra. He submits that in the light of the provisions contained in the said scheme framed under chapter IV of 1939, of the M.V.Act, 1988 the Petitioners are entitled to operate to the exclusion of all other private Operators including Respondent no.3. He submits that Private operators like the Respondent no.3 can operate only on routes and only in the area/fields not expressedly prohibited in such a Scheme. He has invited attention to the provisions of section 103 and 104 of M.V. Act, 1988 read with section 98 to substantiate his contentions. Support is also taken from the Judgment of the Hon'ble Apex Court in AIR 1986 SUPREME COURT 319 (M/s Adarsh Travels Bus Service vs. State of U.P.) Learned counsel submits that the Appellate Authority has erroneously construed the law as explained by the Apex Court in the said Judgment. His other contention is that the alleged introduction of a new concept by using the words "Maxi-cab" cannot have the effect of diluting the scheme which has been looked into by the Respondent no.2. For the said purpose he has invited attention to the provisions of section 2 (29) which defines Omni-bus to urge that "Maxicab" is the only vehicle taken out from the said definition. This exercise cannot be construed as amending or modifying 1973 scheme under which the Petitioner has been operating. He has further contended that after this Court granted interim reliefs in the present matters the issue whether "Maxi-cab" can be permitted in the light of 1973 scheme has been engaging the attention of the Respondent no.1-State Government but the Respondent no.1 has not implemented any decision in this respect even if it may have been taken and therefore prays for quashing and setting aside of the impugned order dated 3.5.1991 and for allowing the Petitions.

6. Learned AGP appearing for the Respondent no.1-State Government is seeking time to make a definite statement about Policy decision if any taken by the State Government in this respect. The Petition is pending before this Court since 1991 and subsequent Policy decision is therefore not very relevant for deciding the controversy at this stage. Even if any such policy decision has been taken, the same has not been brought before this Court either by the Respondent no.3 or by the Petitioner.

7. A perusal of Chapter VI of the M.V.Act 1988 shows that in the said Chapter words "road transport service" means service of motor vehicles carrying passengers or goods or both by road for hire or reward. Section 98 gives Chapter VI over riding effect over Chapter V and other laws. Section 99 deals with preparation and publication of proposal regarding road transport service of a State Transport undertaking. Section 103 obliges the State Government to issue permits to the State Transport Undertakings if it applies for the same in the pursuance of the approved scheme. This obligation is notwithstanding anything to the contrary in Chapter V of the 1988 Act. Section 104 is restriction on grant of permits in respect of a notified area or notified route. It provides that after publication of the scheme under sub section (3) of section 100 the State Transport Authority or the Regional Transport Authority cannot grant any permit except in accordance with provisions of the scheme. The proviso enables grant of such permit 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 a permit shall cease to be effective on the issue of a permit to the State transport undertaking in respect of that area or route.

8. The judgment of the apex Court in AIR 1986 SUPREME COURT 319 SUPRA reveals that a Private operator cannot operate his vehicle on any part on a portion of a notified area or a notified route unless he is authorised so to do by terms of the Scheme itself. The Apex Court has observed that the argument of greater inconvenience to be caused to the travelling public advanced by the private Operator is to be looked into by the State Transport Authority before publishing the Scheme and if any such protection as is required, the State Transport Undertaking and the Government have to make sufficient provisions in the Scheme itself. The Judgment particularly para 6 shows a primary case given to the Scheme and to permit and operations carried out accordingly by the Petitioners.

9. A perusal of the impugned order passed by the State Appellate Tribunal shows that after considering the various legal provisions and the Scheme, the said Authority has given undue importance to the fact that a new concept like a "Maxi-cab"has been introduced in 1988 Act by adding the definition under section 2 (22). It found that the " Maxi-cab" is not prohibited in the 1973 Scheme from operating on routes on which the Petitioner is authorised. It held that the legislative intent behind introducing the said Concept in the 1988 Act was to enable the "Maxi-cab" to ply on the very same route or in the very same area. Thus, because of introduction of this concept of "Maxi-cab", it is found that the Respondent no. 3 was/is eligible to grant of permit.

10. This consideration therefore shows that in the absence of introduction of such a concept of "Maxi-cab" vide section 2 (22) in 1988 Act, the Respondent no.2 Appellate Tribunal also could not have and would not have allowed the Appeal preferred by the Respondent no.3. Hence, the only question is whether the addition of a new definition and the phrase "Maxi-cab in the 1988 Act is sufficient to derogate from the monopoly given to the Petitioner in 1973 scheme. A perusal of the impugned order particularly para 8 reveals that the tribunal has found that the Scheme did not prohibit plying of "Maxi-cab.: It has further found that the Petitioner- MSRTC is not plying any public service vehicles having capacity between 4 to 12 and hence the Scheme did not prohibit use of vehicles with that capacity. As pointed out by the learned counsel for the Petitioner and the learned AGP, the 1988 Act defined omnibus in section 2 (29) to mean any motor vehicle adopted to carry more than six persons excluding the driver, section 2 (18) (A) of M.V.Act 1939 also carried the same definition. Thus, when the scheme was framed in 1973, the concept of Omnibus was very much in existence and any vehicle which carried 6 or more persons to excluding the driver stood covered thereunder. When the 1973 scheme is viewed in this background, it is apparent that the said scheme excluded the vehicles which satisfied the requirement as 'Omnibus' and did not permit them to compete with the vehicles of the Petitioner association.

11. "Maxi cab" has been defined in section 2 (22) of the M.V.Act 1988 to mean any motor vehicle constructed or adapted to carry more than six passengers but not more than twelve passengers excluding the driver for hire or reward.

12. Logic in impugned order shows that 'Omnibus' cannot be issued such permit as per 1939 Act in view of 1973 scheme. Addition of a new definition and employing the words "Maxicab" does not carve out a new class but it is sub class of Omni-bus as defined in section 2 (29) and cannot over ride the provisions of the scheme of 1973. Technically, "Maxicab" is only a sub class and it is included in 1973 scheme under 1939 Act as Omnibus Section 2 (22) defining "Maxi cab" to mean that any vehicle constructed or adapted to carry more than six passengers but not more than twelve passengers excluding the driver for hire or reward does not modify the definition of 'Omnibus' in any manner. The order of the Tribunal shows that the said tribunal could not have permitted Omnibus and to compete with the Petitioner. The said logic also holds good the field for not permitting maxi-cab to operate in the area/route of the Petitioners. Merely because of new definition in section 2 (22) in 1988 Act, the provisions of Chapter VI of the said Act or then provisions in section 98 or 103 are not rendered nugatory. The bar on private operators or restrictions imposed under section 104 are not diluted by the said amendment. The use of such an amendment and legislative intent behind it as gathered by the Appellate Tribunal therefore cannot be accepted as valid. The said amendment does not derogate from the law on the subject of the "scheme" and position is not changed so as to advance cause or case of the Respondent no.3. The impugned order totally overlooks the basic fact that maxi cab continues to be an 'Omnibus' and therefore was and is prohibited from competing with the Petitioner. The impugned order dated 3.5.1991 passed by the Appellate Tribunal is therefore unsustainable and the same is accordingly quashed.

13. Both the Petitions are allowed. Rule is made absolute accordingly. However in the interest of justice, there shall be no order as to costs.

Petitions allowed.