J. S. VERMA, C. J. - (1.) THIS judgment shall dispose of D. B. Special Appeals Nos. 105 of 1986, 106 of 1986. 760 of 1986, 836 of 1986, 845 of 1986, 882 of 1986, 883 of 1986, 884 of 1986 and 910 of 1986, all of which involve for decision of common question of law.
(2.) THE main question is about the applicability of Section 47 (3) of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act') to empower the Regional Transport Authority to fix the optimum strength while acting under sub-section (1-A) of Section 68-F of the Act as amended in its application to the State of Rajasthan. THE real point is the effect of omission of the words 'if it is satisfied that it is necessary to increase, in the public interest, the number of vehicles operating in such area or route or portion thereof,' from sub-section (l-A)of Section 68-F of the Act by the State amendment made in Rajasthan. THE question is whether even after this amendment the authority is empowered to fix the optimum strength by invoking the power under Section 47 (3) of the Act. THE learned Single Judge has taken the view that the provision of Section 47 (3) of the Act has to be read within Section 68-F (1-A) notwithstanding the State amendment made in Rajasthan. A bunch of writ petitions have been disposed of by the learned Single Judge by a common order taking this view. In these appeals before us, the view taken by the learned Single Judge has been challenged. For deciding the above question, very few facts are material. The Regional Transport Authority acting under Section 47 (3) of the Act increased the scope on the various routes covered by a scheme prepared by the State Transport Undertaking and published in accordance with Section 68-D of the Act, for the purpose of granting temporary permits under sub-section (1-A) and (1-C) of Section 68-F of the Act during the period intervening between the date of publication of the scheme and the date of publication of the approved or modified scheme. This gave rise to the question whether the Regional Transport Authority was competent to fix the optimum strength by virtue of Section 47 (3) notwithstanding the state amendment is Section 68-F (1-A) of the Act. It would be appropriate at this stage to quote the relevant statutory provisions. The relevant part of Section 47 in Chapter IV of the Act is as under:- "47. Procedure of Regional Transport Authority in considering application for stage carriage permit.- (1 ). . . . . . . . . . . . . (2 ). . . . . . . . . . . . (3) A Regional Transport Authority may, having regard to the matters mentioned in sub-section (1), limit the number of stage carriage generally or of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region. " Chapter IV A of the Act contains special provisions relating to State Transport Undertakings and the material provisions therein are as under : - "68-B. Chapter IV-A to override Chapter IV and other laws.- The provisions of this Chapter and the rules and orders made thereunder shall have effect not withstanding anything inconsistent therewith contained in Chapter IV of this Act or any other law for the time being in force or in any instrument having effect by virtue of any such law. 68-C. Preparation and publication of scheme of road Transport service of a State Transport Undertaking.- Where any State Transport Undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the State Transport Undertaking may prepare a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct. 68 -. D-Objection to the scheme.- (l) On the publication of any scheme in the Official Gazette and not less than one newspaper in regional language circulating in the area or route which is proposed to be covered by such scheme,- (i) any persons already providing transport facilities by any means along or near the area or route proposed to covered by the scheme; (ii) any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government; and (iii) any local authority or police authority within whose jurisdiction any part of the area or route proposed to be covered by the scheme lies, may within thirty days from the date of its publication in the Official Gazette, file objections to it before the State Government. (2) The State Government may, after considering the objection and after giving an opportunity to the objector or his representatives and the representatives of the State Transport Undertaking to be heard in the matter, if they so desire, approve or modify the scheme. (3) The scheme as approved or modified under sub-section (2) shall then be published in the Official Gazette by the State Government and the same shall thereupon become final and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or notified route: Provided that no such scheme which relates to any inter-State route shall be deemed to be an approved scheme unless it has been published in the Official Gazette with the previous approval of the Central Government. 68-E. Cancellation or modification of scheme.- (1) Any scheme published under sub-section (3) of Section 68-D may at any time be cancelled or modified by the State Transport Undertaking and the procedure laid down in Section 68-C and Section 68-D shall, so far as it can be made applicable, be followed in every case where the scheme is proposed to be cancelled or modified as if the proposal were a separate scheme: Provided that the State Transport Undertaking may, with the previous approval of the State Government, modify without following the procedure laid down in Section 68-C and Section 68-D, any such scheme relating to any route or area in respect of which the road transport services are run and operated by the State Transport Undertaking to the complete exclusion of other persons in respect of the following matters, namely: - (a) increase in the number of vehicles or the number of trips; (b) change in the type of vehicles without reducing the seating capacity; (c) extension of the route or area without reducing the frequency of the service; or (d) alteration of the time-table without reducing the frequency of the service. (2) Notwithstanding anything contained in sub-section (1), the State Government may, at any time, if it considers necessary in the public interest so to do, modify any scheme published under sub-section (3) of Section 68-D after giving - ' (i) the State Transport Undertaking, and (ii) any other person who, in the opinion of the State Government is likely to be affected by the proposed modification, an opportunity of being heard in respect of the proposed modification. 68-F. Issue of permits to State Transport Undertakings (1) Where in pursuance of an approved scheme, any State Transport Undertaking applies in such manner as may be prescribed by the Stare Government in this behalf for a stage carriage permit or a public carrier's permit or a contract carriage. permit in respect of a notified area or notified route, the State Transport Authority in any case where the said area or route lies in more than one region and the Regional Transport Authority in any other case should issue such permit to the State Transport Undertaking, notwithstanding anything to the contrary contained in Chapter IV. (1-A) Where any scheme has been published by a State Transport Undertaking under Section 68-C, that Undertaking may apply for tempo-rary permit, in respect of any area or route or portion thereof specified in the said scheme, for the period intervening between the date of publication of the scheme and the date of publication of the approved, or modified scheme, and where such application is made the State Transport Authority or the Regional Transport Authority, as the case may be shall if it is satis-fied that it is necessary to increase, in the public interest the number of vehicles operating in such area or route or portion thereof issue the temporary permit prayed for by the State Transport Undertaking. ' (1-B) A temporary permit issued in pursuance of the provisions of sub-section (1-A) shall be effective. (i) if the scheme is published under sub-section (3) of Section 68-D, until the grant of the permit to the State Transport Undertaking under sub-section (1), or (ii) if the scheme is not published under sub-section (3) of Section 68-D until the expiration of the one week from the date on which the order under sub-section (2) of Section 68-D is made. (l-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. (1-D) Save as otherwise provided in sub-section (1-A) or sub-section (l-C), no permit shall be granted or renewed during the period intervening between the date of publication, under Section 68-C of any scheme and the date of publication of the approved or modified scheme, in favour of any person for any class of road transport service in relation to an area or route or portion thereof covered by such scheme : Provided that where the period of operation of a permit in relation to any area, route or portion thereof specified in the scheme published under Section 68-C expires after such publication, such permit may be renewed for a limited period, but the permit so renewed shall cease to be effective on the publication of the scheme under sub-section (3) of Section 68-D. (1-E) Where a State Transport Undertaking applies for renewal of a permit within the period specified in sub-section (2-A) of Section 58, the State Transport Authority or, as the case may be, the Regional Transport Authority, shall, renew such permit, notwithstanding anything to the contrary contained in Chapter IV. (2) For the purpose of giving effect to the approved scheme in respect of a notified area or notified route the State Transport Authority or as the case may be, the Regional Transport Authority concerned may, by order.- (a) refuse to entertain any application for the grant or renewal of any other permit or reject any such application as may be pending ; (b) cancel any existing permit; (c) modify the terms of any existing permit so as to - (i) render the permit in effective beyond a specified date : (ii) render the number of vehicles authorised to be used under the permit; (iii) curtail the area or route covered by the permit insofar as such permit relates to the notified area or notified route. (3) For the removal of doubts, it is hereby declared that no appeal shall lie against any action taken, or order passed, by the State Transport Authority or any Regional Transport Authority under sub-section (1) or sub-section (2 ). 68-FF. Restriction on grant of permits in respect of notified area or notified route.- Where a scheme had been published under sub-section (3) of Section 68-D 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. " Sub-sections (1-A) and (1-D) in Section 68-F of the Act have been amended and sub-section (1-AA) has been inserted therein by local amendment made in the State of Rajasthan, so that after this amendment sub-sections (1-A), (1-AA) and (1-D) in Section 68-F of the Act in its application to the State of Rajasthan read as under: - " (1-A) Where any scheme has been published by a State Transport Undertaking under Sec. 68-C, that Undertaking may apply for a temporary permit in respect of any area or route or portion thereof specified in the said scheme for the period intervening between the date of publication of the approved or modified scheme and where such application is made, the State Transport Authority or the Regional Transport Authority as the case may be, shall, if it is satisfied that it is necessary to increase, in the public interest the number of vehicles operating in such area or route or portion thereof, issue the temporary permit prayed for by the State Transport Undertaking. (1-AA) - Where a State Transport Undertaking applies for grant of a temporary permit in respect of any route which comprises a notified route or area or portion thereof and any other route or schemes published under Section 68-C, the Regional Transport Authority or the State Transport Authority, as the case may be, shall issue the temporary permit so prayed for. (I-D) Save as otherwise provided in sub-section (1-D) or sub-section (1-C), no permit shall be granted or renewed during the period intervening between the date of Publication, under Section 68-C of any scheme and the date of publication of the approved or modified scheme, in favour of any person for any class of road transport service in relation to an area or route or portion thereof covered by such scheme: Provided that where the period of operation of a permit in relation to any area, route or portion thereof specified in a scheme published under Section 68-C expires after such publication and where the State Transport Undertaking has not applied for or obtained a temporary permit under sub-section (1-D), such permit may be renewed for a limited period, but the permit so renewed shall cease to be effective on the publication of the scheme under sub-section (3) of Section 68-D. " By this amendment in the State of Rajasthan, the words 'if it is satisfied that it is necessary to increase, in the public interest, the number of vehicles operating in such area or route or portion thereof have been omitted in sub-section (1-A) and the words 'and where the State Transport Undertaking has not applied for or obtained a temporary permit under sub-section (1-A)' have been inserted in sub-section (1-D) of Section 68-F. The question before us is of the effect of this amendment made in the Act in its application to the State of Rajasthan and the applicability of Section 47 (3) even then. It would be useful at this stage to mention the object of introducing Chapter IV-A in the Act and the amendment made in section 68-F in 1969. The object behind sub-sections (1-A) to (1-D) introduced in Section 68-F by the Amending Act 56 of 1969 was to overcome the difficulty in implementation of a nationalised scheme, which has been succinctly summarised in Dhanna Singh v. The Regional Transport Authority. Gwalior (1) as under :- "the fascicle of sub-sections (1-A) to (1-D) was introduced in Section 68-F by the Amending Act 56 of 1969. The legal position prior to the introduction of these sub-sections was that publication of the scheme under Section 68-C did not prevent the grant or renewal of permits under Chapter IV on any area or route covered by the scheme. It was only after publication of the approved scheme under Section 68-D that applications for grant or renewal of permits in contravention of the scheme could be refused by the Transport Authorities. Grant or renewal of a permit after the publication of a scheme under Section 68-C at times created complications, for such permits could not be mentioned for cancellation in the scheme and, therefore, could not be affected even by the approved scheme; (Baluram v. State of MP 1967 MPLJ 539 = AIR 1967 Madh. Pra. 130 ). This difficulty in implementation of a nationalisation scheme is remedied by introduction of these sub-sections in Section 68-F. The object behind them is to prohibit grant or renewal of permits on areas or routes covered by a scheme after its publication under Section 68-C and to make provision for grant of temporary permits to the State Transport Undertaking or in its absence to any other operator to meet the need of travelling public for the period intervening the publication of a scheme under Section 68-C and the publication of the approved scheme under Section 68-D. The note on the relevant clause of the Bill explains the object of the sub-sections as follows : "the committee feel that when a scheme of nationalisation is published under Section 68-C, no permit should be granted or renewed to any person. But in view of the fact that between the publication of such scheme in the draft form and the date of its publication in the approved form, there is bound to be a time-lag, the Committee fee! that temporary permits should be issued for the intervening period to the State Transport Undertaking, if it so desires, or, when it does not so desires, to any other operator, so that the interests of the users may not suffer. New sub-sections, viz, sub- sections (1a), (IB), (lc) and (ID) are therefore, proposed to be inserted in Section 68-F. The clause has been amended accordingly.-J. C. R. " For a proper construction of sub-section (1c) of Section 68-F, this sub-section has not to be read in isolation and all the four sub-sections, (1-A) to (1-D) which were enacted at the same time, have to be considered together. " It is in this background that the question before us has to be answered. Some decisions which throw light on this controversy may now be referred.
(3.) IT has clearly held in Sobhraj Odharmal v. The State of Rajasthan (2) while dealing with the scope of sub-section (I) of Section 68-F that a statutory duty is imposed upon the Regional Transport Authority to grant permits to the State of Transport Undertaking, if an application is made in that behalf pursuant to an approved scheme and to such an application the provisions contained in Chapter IV such as Sections 47, 48, 57 and allied sections will not apply. This was reiterated placing reliance on an earlier decision of the Supreme Court. IT is, therefore, clear that in applicability of the provisions contained in Chapter IV such as Sections 47, 48 and 57 etc. to Section 68-F unless provided otherwise is the ordinary inference and the requirements of Section 47 etc. contained in Chapter IV are not to be readily invoked thereunder. The same effect of not invoking the provisions of Chapter IV while dealing with Section 68-F appears from C. S. Rowjee represented by power of Attorney holder Sr. C. Apparao Rowjee v. The State of Andhra Pradesh (3 ). In our opinion, the decision of the Supreme Court in Smt. Praveen Ansari v. The State Transport Appellate Tribunal, Lucknow (4) is nearest to the point for indicating clearly the effect of the Rajasthan amendment in sub-sections (1-A) and (1-D) of Section 68 F. The presence of the words' if it is satisfied that it is necessary to increase in the public interest the number of vehicles operating in such area or route or portion thereof, in sub-section (1-A) of Section 68-F led to the conclusion the optimum strength could be fixed by the competent authority and it is obvious that the omission of these words from this provision by the Rajasthan amendment results in taking away that power. The power to fix the optimum strength was on account of these words in Section 68-F (1-A) of the Act and not because of section 47 (3 ). This power can therefore, be traced only to the contents of Section 68-F (1-A) and not to any other provision outside it, including Section 47 (3) Relevant portions from the decision in Smt. Praveen Ansari's case (supra) are as under: - "section 68-F (1) makes it obligatory upon the State Transport Authority or Regional Transport Authority as the case may be, to grant permit of the nature envisaged in the section to the Corporation to the exclusion of any other applicant. Section 68-F (l-A) confers power on the State Transport Authority or the Regional Transport Authority as the case may be, for the period intervening between the date of publication of the scheme and the date of publication of the approved or modified scheme to increase in public interest the number of vehicles operating on the route or the area in respect of which the scheme has been published by State Transport Corporation under Section 68-C and further enables the Corporation to apply for temporary permits to ply the vehicles during the interregnum. On such applications being made it is obligatory upon the State Transport Authority or the Regional Transport Authority, as the case may be,to grant such temporary permits. . . . . . . . . . . . . . . However, in view of the provision contained in Sec. 68-F (1-A) consequent upon the scheme being published by the Corporation under Sec. 68-C in respect of the route the Corporation will be entitled to all the temporary permits to the exclusion of any other operator. But Legislature was aware of a possible situation where the Corporation though entitled to temporary permits to the exclusion of other operators may not be in a position to avail of this statutory right. Section 68-F (l-C) appears to have been introduced to meet with the situation arising out of the inability of the Corporation to obtain all available temporary permits. Section 68-F (l-C) caters to such a situation where a scheme has been published and, therefore, the Corporation would be entitled to temporary permits till the approved scheme is published, yet if the Corporation is unable to provide service by obtaining all requisite temporary permits, the State Transport Authority or the Regional Transport Authority as the case may be, in exercise of power conferred specifically upon it by Section 68-F (l-C) can grant temporary permits to persons other than the Corporation to operate vehicles on the route for which the scheme is published till modified or approved scheme is published" In view of the fact that the Supreme Court decision was on sub-section (1-A) of Section 68-F as it occurs in the Central Act inclusive of the words omitted by the Rajasthan amendment, the competent authority's power to fix the optimum strength thereunder was assumed, which itself clearly indicates that without those words which have been omitted by the Rajasthan amendment, the power to fix the optimum strength is not available. A Division Bench of this Court pointed out in Sanwal Das v. R. T. A. Jaipur (5) that Chapter IV-A of the Act excludes the application of the provisions of Chapter IV in so far as they may be inconsistent with the provisions of that Chapter. Even from this view it follows that the requirement of Section 47 (3) cannot be read in sub-section (1-A) of Section 68-F after the Rajasthan amendment, since that would introduce an inconsistency which is evident from the Legislative intent of omitting the words by the Rajasthan amendment which were used in sub-section (1-A) of Section 68-F to empower the competent authority to fix the optimum strength. ;