9911796707
TMI Blog1996 (9) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... e permits under Section 72 on the Meerut- Gangoh route which intersects part of the route on which the appellant was operating his stage carriage. Despite objections raised by the appellant, the State Transport Authority (for short, 'STA') granted permits to them on November 23, 1992 which came be challenged by the appellants in revision filed under Section 90 before the State Transport Appellate Tribunal (for short, 'STAT'). The respondents questioned the appellant's locus standi under the preliminary objection that the renewal granted under Section 81 to the appellant was void. By order dated August 9, 1995, the STAT upheld the preliminary objection and held that the appellant has no locus standi to object the grant of permits to the respondents, since the renewal of the permit granted to the appellant was not valid in law as he had not got any new permit under the Act. The High Court in the impugned judgment dated October 13, 1995 made in Writ Petition No.26132 of 1995 has upheld the order of the STAT. Thus, this appeal by special leave. Shri K.K. Venugopal, learned senior counsel for the appellant, contended that the renewal of the permit of the appellant g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Therefore, the view of the High Court is clearly not sustainable in law. In support thereof, Shri Venugopal places strong reliance on D.Nataraja Mudaliar vs. The State Transport Authority, Madras [(1978) 4 SCC 290], State of Punjab vs. Manohar Singh [(1955) 1 SCR 893] and M/s. Universal Imports Agency & Anr. vs. The Chief Controller of Imports and Exports & Ors. [(1961) 1 SCR 305]. Shri Harish N.Salve, appearing for some of the existing operators in the nationalised schemes, contended that they were not paid compensation since permits in their names were saved with corridor restrictions. They are, therefore, entitled to renewal of permits as a matter of right. Shri Adarsh Kumar Goel, learned counsel for the State, resisted the contentions. According to him, the scheme of the Act in many a provision is inconsistent with the scheme of operation in the Repealed Act. When the Legislature manifested its intention as to its inconsistency in the operation of the Act with the provisions of the Repealed Act, the STA or the Regional Transport Authority (for short,'RTA'), as the case may be, would be devoid of power and jurisdiction to grant renewal of permit under the Act. Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permit or a renewal of the permit as per the provisions of the Act? To appreciate to contentions in proper perspective, it would be profitable to refer to the provisions of the Act, extent of their operation and their inconsistency with the provisions in the Repealed Act so as to focus the true intentment and operation of the Act. Section 2(31) of the Act defines "permit" to mean a permit issued by the State or Regional Transport Authority or an authority prescribed in this behalf under the Act (emphasis supplied) authorising the use of motor vehicle as a transport vehicle. "Transport vehicle" has been defined under Section 2(47) to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. "Stage carriage" has been defined under Section 2(40) to mean motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey. "Route" has been defined under Section 2(38) to mean a line of travel which specifies the highway which may be traversed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orce; (iii) ex- servicemen; and (iv) any other class or category of persons, as the State Government may, for reasons to be recorded in writing, consider necessary. On other routes, except town service, no restrictions are imposed unlike in Section 47(3) of the Repealed Act to grant stage carriage permits. Section 72 empowers the RTA or STA to decide an application for grant of a permit to operate a stage carriage with any one or more of the conditions enumerated under sub-section (2) thereof or the rules or conditions attached to the permit. Section 80 prescribes procedure to apply for and grant of renewal of permits. Sub-section (2) envisages that on an application made under sub-section (1) at any time, the STA or RTA or any prescribed authority under Section 66,shall not ordinarily refuse to grant an application for permit of any kind made under the Act. (emphasis supplied). The proviso lifts the embargo of sub-section (2) and permits summary refusal of the application, if such a grant would have the effect of "increasing the number of stage carriages as fixed and specified in a notification" under Section 71(3) (a) or of the contract carriages as fixed and specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of any such law. The STU shall provide an efficient, adequate, economical and properly coordinated road transport service on the notified area or route or portion thereof to the exclusion of the private operators except as exempted in the scheme itself which itself is a self-operative law. The details are not material for the purpose of this case except that under the said Chapter, there is no specific provision, like Section 68F (1D) for renewal in favour of any person or any class in relation to an area or route or portion thereof covered by such scheme for renewal, or Section 68F (1E) in favour of STU. Section 217 repeals the existing laws and provides savings from its operation. Sub-section (1) specifically repeals Act 4 of 1939 and any law corresponding to that Act in force in any State before July 1, 1989. Sub-section (2) with a non obstante clause provides certain savings as provided thereunder: Clause (a) of Section 217(2) provides that notwithstanding the repeal of Act 4 of 1939 or any other analogous enactments in operation, any notification issued, rule, regulation made, order passed or notice issued or any appointment or declaration made, or exemption granted or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the permits saved under Chapter IV-A of the Repealed Act. Therefore, the result would be that even the private operators whose permits were saved also would have limited operation under Section 217(2) (b) to ply their stage carriages for the unexpired period only. So, limited validity of permits to run stage carriages etc, on the nationalised routes or notified area or portion thereof in the approved scheme was saved so that the holder of the stage carriage permits will have full course of unexpired life of the permits granted under the Repealed Act. In other words, Section 217(2)(b) breathed limited life into all permits granted under the repealed Act except those granted to STU under approved or draft schemes to run its full course. It was so manifested by Section 217(4) and Section 6 of the GC Act. The operation of law in Chapter IVA of the Repealed Act as declared by this Court would be of much assistance for interpretation in this behalf. In Mysore State Road Transport Corporation vs. Mysore State Transport Appellate Tribunal [(1974) 2 SCC 750], it was held that no licence can be granted to any private operator whose route traversed or overlapped any part of a notified ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of U.P. & Ors. [(1992) 2 SCC 620] another Bench of two Judges had considered the scheme of Chapter IV-A of the Repealed Act and Sections 80 and 98 of the Act. It was held that the scheme published under Section 68D of the Repealed Act (Chapter VI of the Act) is a law and it has over-riding effect over Chapter IV of the Repealed Act (Chapter V of the Act). The scheme operates against everyone unless it is modified. It excluded private operators from the notified area or notified route or a portion thereof covered under the scheme except to the extent saved under the scheme itself. The right of the private operators to apply for and to obtain permits under Chapter IV of the Repealed Act (Chapter V of the Act) had been totally frozen and prohibited. The result was that on the approved nationalised route or area, the private operators were totally prohibited to obtain permits under Section 72 or renewal under Section 81 of the Act to ply their stage carriages. This ratio was reiterated by another Bench in Nisar Ahmad & Ors. vs. State of U.P. & Ors. [(1994) Supp. 3 SCC 460] holding that the approved scheme is a law by itself and everyone, whether or not party to the earlier order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumption of the existence of the state of affairs which in actuality is non-existent. The effect of such a legal fiction is that a position which otherwise would not obtain is deemed to obtain under the circumstances. Therefore, when Section 217(1) of the Act repealed Act 4 of 1939 in effect came to be non-existent except as regards the transactions, past and closed or saved. In Crawford's Interpretation of Law (1989) at page 626, it is stated that "[An express repeal will operate to abrogate an existing law, unless there is some indication to the contrary, such as a saving clause. Even existing rights and pending litigation, both civil and criminal, may be affected although it is not an uncommon practice to use the saving clause in order to preserve existing rights and to exempt pending litigation". At page 627, it is stated that "[ Moreover, where a repealing clause expressly refers to a portion of a prior Act, the remainder of such Act will not usually be repealed, as a presumption is raised that no further repeal is necessary, unless there is irreconcilable inconsistency between them. In like manner, if the repealing clause is by its terms confined to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned author has stated that the effect of clauses (c) to (e) of Section 6 of GC Act is, speaking briefly, to prevent the obliteration of a statute in spite of its repeal to keep intact rights acquired or accrued and liabilities incurred during its operation and permit continuance of institution of any legal proceedings or recourse to any remedy which may have been available before the repeal for enforcement of such rights and liabilities. At page 418, the learned author has stated that the privilege to get an extension of a licence under an enactment is not an accrued right and no application can be filed after the repeal of the enactment for renewal of the licence. In Legislation and Interpretation by Jagdish Swarup (1974 Ed,) at page 539, it is stated that the power to lake advantage of an enactment may without impropriety be termed as a "right", but the question is whether it is a "right accrued". A mere right (assuming it to be properly so called) existing in the members of the community or any of them to take advantage of an amendment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a "right accrue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which have accrued under the original statute are preserved and may be enforced, since the re-enactment neutralizes the repeal, thereby continuing the law in force without interruption. Logically, the former attitude is correct, for the old statute does cease to exist as an independent enactment, but all practical considerations favour the majority view. This is so even where the statute involved is a penal act." In Maxwell on the Interpretation of Statutes (12th Ed.) it is stated at page 17 that the effect of repealing Acts passed after August 30, 1889, is now dealt with by Section 38(2) of the Interpretation Act. Such repealing Acts are, unless the contrary intention appears, not to..."(b) affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed; or (c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce its acquisition. Effect up On inchoate rights Rights of action which are dependent upon a statute, and which are still inchoate and not reduced to possession or perfected by final judgment, are lost by the repeal of the statute from which they stem. This rule of construction is simply a restatement of the common law principle of construction that the repeal of a statute operates to divest all rights accruing under the repealed statute and all proceedings not concluded prior to the repeal, since inchoate rights are by definition not vested rights such as to escape the common law rule of effacement. The inchoate rights are but an incident to the statute and fall with its repeal." In Francis Bennion's Statutory Interpretation (Second Edition) it is stated at page 210 thus: "Where an Act passed after 1978 repeals and re-enacts as enactment (with or without modification) then, unless the contrary intention appears, anything done, or having effect as if done, under the enactment repealed, in so far as it could have been done under the provision re-enacted, has effect as if done under that provision." In Cardinal Rules of Legal Interpretation (3rd Edition) by Ran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, order or notice issued etc, and any appointment or declaration made etc, under the Repealed Act in force immediately before July 1, 1989. Those enumerated acts or actions shall be deemed to have been issued, made, granted, done or taken under the corresponding provisions of the Act which are not inconsistent with the provisions of the Act. In other words, Section 217 (2) (a) gives an elongated operation as regards all transactions, which being consistent with the provisions of the Act should be deemed to have been issued, made, granted, done or taken under the corresponding provisions of the Act. Existence of the corresponding provisions similar to the repealed provisions is a condition precedent. If the operation of the provisions in the Act is inconsistent and incompatible, it gets obliterated and the earlier provisions no longer revive or survive. If analogous provision in the Repealed Act does not find place in the Act, the rights accrued or acquired thereunder would not continue under the Act unless fresh rights are acquired under the Act. By operation of clause (b), any certificate of fitness of a motor vehicle or its registration or licence issued or permit granted un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions should be satisfied as conditions precedent for application of Section 6 of the GC Act by operation of sub-section [4] of Section 217 and then clause [a] of sub-section [2] of Section 217 steps in and starts operation thereof. We are concerned with permits, let it be said that a permit is preceded by an order granting permit by the concerned RTA or STA, as the case may be, under the Repaled Act. The said order stands merged with the grant of permit and gets exhausted. This may be angulated from yet another legal perspective, namely, consequences that would flow from the meaning of the word `renewal' of a permit under Section 81 of the Act. Black`s Law Dictionary defines the word `renewal' at page 1296 thus: "The act of renewing or reviving. A revival or rehabilitation of an expiring subject; that which is made anew or re-established. The substitution of a new right or obligation for another of the same nature. A change of something old to something new. To grant or obtain extension of;" In P. Ramanatha Aivar's "The law Lexicon" [Reprint Edition 1987], the word `renewal' is defined at page 1107 to mean "a change of something old for s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and after compliance with the pre-conditions and abiding the law. In Ambika Quarry Workis v. State of Gujarat [[1987] 1 SCC 213] this Court was to deal with right to renewal of a mining lease under the Gujarat Mines and Minerals Concessions Rules. When the renewal of the lease was not granted, due to statutory embargo created by Section 2 of the Forest [Conservation] Act, 1980, this Court had held that though the right to renewal was in accordance with the rules, with the interposition of the Act for conservation of the forests, it puts an embargo on the right to renewal. Therefore, the refusal to grant renewal of lease was upheld. In Rural Litigation and Entitlement Kendra v. State of U.P. [[1989] Supp. 1 SCC 504 at 523-24] after considering the above ratio, it was held that though the lessees of the mines were entitled to apply for renewal as per the law and clauses in the lease, this Court prohibited obtaining of renewals applying Section 2 of the Forests [Conservation] Act, 1980. In State of M.P. & Ors. v. Krishnadas Tikaram [[1995] Supp. 1 SCC 587] this Court had held that it is settled law that renewal is a fresh grant and must be granted consistent with law in operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obstante clause in favour of STU, which is a self-operatiive law by itself. The rights of the existing operators for renewal thereof under Section 68F(1D) under the repealed Act were saved. But, under the Act, Chapter VI does not speak of renewal of the permits to the private operators, though permits were saved in the scheme itself. In other words, Chapter VI manifested inconsistency in its operation from the law in Chapter IVA of the Repealed Act. Similarly, other provisions are inconsistent with those in Act 4 of 1939 which exist in the Act as are apparent but they are not relevant for our present purpose and hence need no elaboration. Therefore, clause (a) of sub-section (2) would not get attracted, even if it were to apply to grant of permit being a "thing done" as contended by Shri Venugopal. So, any permit issued to operate a stage carriage under the Repealed Act would survive, by virtue of clause (b) of sub- section (2) of Section 217 of the Act by fictional operation of law; and this would be on the same conditions and for the same period mentioned under the Repealed Act, as if the Act was not enacted. Any other view would tantamount to allowing the Repealed Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om. The ratio is not at all applicable to the facts of this case. We, therefore hold that grant of renewal of the stage carriage permit should necessarily be preceded by a grant of a permit to stage carriage under Section 72, in accordance with the procedure laid down in Sections 70 and 71. This should be made before the expiry of the period prescribed in the permit granted under the Repealed Act. Therefore, for stage carriage permits granted under Chapter IV of the Repealed Act, if they stand to expire or expired after 1st July, 1989, without any pending application for renewal having been made under Section 58 as on 1st July, 1989, fresh applications under Section 70 should be filed and after consideration under Section 71, permits be obtained as per law under Section 72. If there is any delay to obtain permits pending consideration, by operation of Section 76, to avoid hiatus in continued operation of providing stage carriage service, section 87 gives power to grant temporary permit without following the procedure laid down in Section 70. In Mithilesh Garg & Ors vs. Union of India & Ors. [(1992) 1 SCC 168], this Court had laid down different criteria for grant of inter-region, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. The question, therefore, is: whether a private operator saved under the scheme is not liable to get permits under Section 72 and renewal of the permits under Section 81 of the Act? It is true that Section 68F (1D) and Section 68F (1F) of the Repealed Act had prescribed that renewal of the permits granted to the private operators and STU should be renewed under the scheme; similar provision do not find place in Chapter VI of the Act. Rules do prescribe procedure to apply for renewal by the private operators as well as STU but the rules or procedure do not confer substantive right to renewal of the permits granted under the scheme; when Chapter VI is sub silentio, rules cannot travel beyond the Act. The question, therefore, is: whether the named holder of a specified stage carriage permit has the right of renewal under the Act after the expiry of the period mentioned in the permit granted under the Repealed Act? Did the Parliament intend to put an end to and denude the right of a private named operator to operate the stage carriage; or to that extent the right to apply for and obtain permit under Sections 70 to 72 or renewal under Section 81 was preserved? Two views are plaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r VI. The grant of renewal to them, unless modified by the scheme under Section 102 of the Act, is inconsistent and, therefore, the their permits. The exclusive right, thereby, was given to the STU to ply their stage carriages, goods carriages or contract carriages so as to avoid inconvenience and hardship to the travelling public. After giving careful and anxious consideration to the respective contentions, we find that there is some force in the contention of the respective counsel for the appellants. It bears repetition to state that the approved scheme under the Repealed Act or in the Act is a self-contained and self- operative scheme. It is a law by itself. The schemes published under the Repealed Act, as held earlier, are saved by Section 217 (2) (a) of the Act. Therefore, until they are modified or cancelled under Section 102, the scheme should continue to be in operation in the notified area, route or part thereof. The right to apply for and obtain permit in the notified scheme was totally frozen to the private operators giving exclusive right to the STU to apply for and obtain permits to run the stage carriages or additional service under Section 101 of the Act on the not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Act is further eloquent and self- explanatory. In Krishan Kumar Vs. State of Rajasthan & Ors. [(1991) 4 SCC 258], a contention was raised that since Section 100(4) of the Act prescribes limitation within which the State Government should here and consider the objections on the draft scheme, finalise the scheme and publish the same in the official Gazette, after the Act had come into force, the limitation of one year stood lapsed. Though Section 217(2)(e) empowers the State Government to finalise the pending draft schemes, they stood lapsed from the date on which draft scheme was published. The contention was rejected by this Court for the obvious reason that the Repealed Act did not prescribe any limitation to finalise the draft scheme as indicated in sub-section (4) of Section 100 of the Act. As years rolled by from the date of publication of draft scheme for finalisation, the Parliament for the first time prescribed limitation in Section 100(4) putting a fetter on the exercise of the power of the Government in approving the draft scheme and publication thereof after complying with the requirements of law. The right of the private operators and the remedy of finalisation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ify the original scheme under which the named operator, whose specified permit was saved, whether he is entitled to ply the stage carriage in approved scheme with the condition of the corridor restrictions imposed in the notified scheme and if so to what extent. What is the duration of his right saved in the approved scheme? Whether he had plied his stage carriage on complying with the law in force? His right to permit under Section 72 or renewal under Section 81 cannot be higher than the original right saved in the approved scheme. The STU also should be heard in that behalf. On consideration of these and all other relevant facts in relation to grant of stage carriage permit or renewal thereof, the appropriate authority may grant or reject. In the later event, for reasons to be recorded in support of the rejection. In Mithilesh Garg's case (supra) a Bench of three Judges considered the right of the existing operators in conformity with Article 19(1)(g) of the Constitution and the procedure prescribed under the liberal policy for grant of permits to the new entrants, while continuing the same right to existing operators under the new provisions in the Act. It was harmoniously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act, but one under deemed fiction. There would be no further fiction of law created under the Act to be a deemed renewal of permit under the Act. In Quillon's case (supra) this Court did not have the occasion to consider the effect of section 6 of the GC Act and clause (a) of sub-section (2) of Section 217 since the case fell under clause (b). Therein, the proviso to unamended Section 71(1) prohibited the Society to obtain a permit. Consequently, it could not obtain renewal of stage carriage permit, being inconsistent with the provisions of the Act. It was held that the stage carriage permit issued under the Repealed Act would remain operative for the period for which it was granted as if the Act had not been passed. After its expiry, the appellant therein was required to obtain a permit under Section 72 of the Act. Thereby, it was held that the Society was not entitled to the renewal under Section 81 of the Act. In view of the consideration of the operation of the relevant provisions mentioned herein before, there is no conflict between Gurcharan Singh's case and Quilon's case. The interpretation in Quilon's case is also consistent with the consideration herein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under Section 72 or renewal under Section 81 made by the named holder of a specified permit in an approved scheme, he should enclose an authenticated copy of the approved scheme, the details of the route on which he was plying his stage carriage with corridor restrictions on over lapping routes. The RTA or STA, as the case may be, should verify the original scheme under which the named operator, whose specified permit was saved, whether he is entitled to ply the stage carriage in the approved scheme with the condition of the corridor restrictions on the notified scheme and if so to what extent. What is the duration of his right saved in the approved scheme? Whether he had plied his stage carriage on complying with the law in force? His right to permit under Section 72 or renewal under Section 81 cannot be higher than the original right saved in the approved scheme. The STU also should be heard in that behalf. On consideration of these and all other relevant facts in relation to grant of stage carriage permit or renewal thereof, the appropriate authority may grant or reject; in the later event, for reasons to be recorded in support of the rejection. The authorities should consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
