- (1.) R. A. Sharma, J. Hapur - Kothor route (hereinafter referred to as the route was notified under Chapter IV-A of the Motor Vehicles Act, 1939 (hereinafter lettered to as the old Act) for exclusive operation of the road trans port service by the U. P. State Road Transport Corporation (hereinafter refer red to as the Corporation ). Under the approved Scheme the Corporation is to operate 30 services daily from each side or more according to the need. The Corporation in pursuance of the above Scheme obtained 10 stage carriage permits in 1987 for operating the service on the route. It appears that the Corporation was not plying its vehicles on the route on account of which there was resentment in The public and some complaints were also made regarding it. The petitioners also made applications for temporary stage carriage permits under Section 104 of the Motor Vehicles Act, 1988 (hereinafter refer red to as the Act ). These applications having been rejected by the State Transport Authority (hereinafter referred to as the S. T. A.) the petitioners have filed the present writ petition.
(2.) THE Corporation has filed a counter-affidavit and the petitioners have filed rejoinder-affidavit in the reply thereto. We have heard learned counsel for the parties. Section 104 of the Act is as under: "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 noti fied route, the State Transport Authority or the Regional Trans port Authority, as the case may be, shall not grant 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 for notified route subject to the condition that such permit shall cease to be effective on the issue of a permit to the State Trans port undertaking in respect of the area or route. " The Transport Authorities cannot grant any permit on the notified route except in accordance with the provisions of the Scheme. If the Scheme is for exclusive operation of the State Transport Undertaking, no permit can be granted to the private operators. This is clear from sub-section (1) of Section 104 of the Act. But its proviso provides for the grant of temporary permits to the private operators in respect of a notified route where no application for permit has been made by the State Road Transport Under taking. In paragraphs 7 and 15 of the counter-affidavit filed on behalf of Corporation it has been stated that the Corporation is operating 20 services per day on the route by the buses. This has been denied by the petitioners in the rejoinder-affidavit. Secretary Regional Transport Authority in his survey report dated 5-10-1994 (Annexure-6 to the writ petition) has stated that the Corporation is not plying any vehicle on the route and has also not applied for renewal of its permits granted to it, in 1987. The S. T. A. in its impugned resolution dated 7-10-1994 has taken note of the contents of the above report of the Secretary, Regional Transport Authority and has also observed that although the Corporation has obtained 10 permits for the route in 1987 in pursuance of the Scheme but the representative of the Corpo ration is not in a position to state as to how many services are being operated on the route by the Corporation. However, the S. T. A. has rejected peti tioners' application for temporary permits as not maintainable on the ground that the Corporation his already obtained the permit* for the route in pur suance of the approved Scheme.
(3.) IN the instant case the undisputed position is as under: (1) The Corporation is not operating 30 services per day on the route in spite of the fact that it has obtained 10 permits in 1987 in pursuance of the Scheme. Its claim of operating 20 services daily has not been accepted by the S. T. A. and on the other hand the survey report of the Secretary, Regional Transport Authority has clearly demonstrates that it was not operating a ay service on the route. 2. The Corporation has neither applied for nor has been granted the renewal of its permits granted to it in 1987 in pursuance of the Scheme. It is true that proviso to Section 104 states that temporary permit can be granted to the private operator on notified route if no application for permit, in pursuance of the approved Scheme, has been made by the State Transport Undertaking. But this proviso cannot be read in isolation. According to Sections 99 and 100 of the Act routes are nationalised "for the purpose of providing an efficient, adequate, economical and properly co ordinated transport service. " If the Corporation is unable to provide all road transport services specified in the Scheme, temporary permits can be granted to private operators in respect of those services regarding which Corporation has not applied for permits. In this connection reference may be made to Smt. Pravesn Ansari v. The Stats Transport Appellate Tribunal, AIR 1981 SC 516, wherein Section 68-F (1-C) of the old Act, came up for consideration. Section 68-F (1-C) of the old Act is as under: "68-F (1-C): If no application for a temporary permit is made under sub-section (1-A), the State Transport Authority or the Regional Transport Authority, as the case may be, may grant, subject to such conditions as it may think fit, temporary permit to any person in respect of the area or route or portion thereof specified in the Scheme and the permit so granted shall cease to be effective on the issue of a permit to the State Transport Undertaking in respect of that area or route or portion thereof. Section 68-F (1-D) of the old Act prohibited the grant of permit on a route covered by draft Scheme under Section 68-C of that Act, except as provided in sub-sections (1-A) and (1-C), preferential right to obtain temporary permit for such a route was given to State Transport Undertaking by sub-section (1-A), but if no application for temporary permit is made under sub-section (1-A) the transport authority could grant temporary permit to private aperator under sub-section (1-C ). Supreme Court, in the case of Smt. Praveen Ansari, in this connection, has held as under: "if the Corporation is willing to operate vehicles to the maximum strength undoubtedly the State Transport Authority will have to grant permit to the Corporation under Section 61-F (1-A) to the exclusion of others. But if the Corporation was unable to pro vide vehicles for the optimum strength fixed by the State Trans port Authority the remaining permits will have to be granted to any other person willing to obtain temporary permit and ply vehicle because in respect of the remaining strength there would be no application by the Corporation and Section 68-A (1-C) would be squarely attracted. In interpreting the provisions of Chapter IV-A of Motor Vehicles Act, 1939 it is undoubtedly true that the Corporation enjoys a preferential treatment in the matter of obtaining permits. The authority under the Act must not ever lose sight of the fact that the primary consideration must be the service available to the travelling public. " It was accordingly laid down that if the Corporation does not apply for all the permits, but only for some temporary permits can be granted to the other persons against the remaining strength. The proviso to Section 104 has also to be interpreted in the same manner otherwise its very purpose it will be frustrated.;