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TMI Blog1984 (1) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... r that permit ? Before embarking on a discussion of the above questions, it will be convenient to relate the facts which have given rise to this Appeal. On February 2, 1966, the First Respondent, B.A. Jayaram, had been granted by the Regional Transport Authority, Bangalore, a stage carriage permit on the inter-State route Cuddapah in the State of Andhra Pradesh to Bangalore in the State of Karnataka for one trip only and a stage carriage permit no. 20/65-66 in respect of this route was issued to him on March 16, 1966. This permit was counter-signed by the State Transport Authority Andhra Pradesh, on March 21, 1967. By Notification No. S.O. 111 dated January 10, 1968, published in the Mysore Government Gazette dated January 25, 1968, the Government of Mysore (now Karnataka) granted its approval under sub-section (2) of section 68-D of the Motor Vehicles Act, 1939 (IV 1939) (hereinafter referred to as the said Act ) to a scheme set out in the Schedule to the said Notification. The said Scheme covered 87 intra-State routes in the State of Karnataka set out in the Appendix to the said Scheme. The effect of the said Scheme was to nationalize passenger transport service between Bang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Second Respondent to dispose of the First Respondent's said application in accordance with law, holding that the said Scheme did not operate as a bar to increasing the number of trips of an existing inter-State route. In pursuance of the said order of the High Court, the Second Respondent published the First Respondent's said application inviting representations in connection therewith. In the meanwhile the Appellant filed on November 27, 1974, a writ petition in the Karnataka High Court, being Writ Petition No. 6399 of 1974, to recall the order made in the said Writ Petition No. 3360 of 1974 and to rehear the said writ petition after impleading the Appellant as a respondent thereto. A learned Single Judge of the said High Court dismissed the Appellant's said writ petition on December 2, 1974, holding that the Appellant was not a necessary party to the said Writ Petition No. 3360 of 1974. On December 23/24, 1974, the Second Respondent granted to the First Respondent the additional trip applied for by him. Against the order of the learned Single Judge dismissing its writ petition, the Appellant filed alia intra-Court appeal under section 4 of the Karnataka High Court A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 to 1287 of 1979. He also made an application to implead himself as a respondent in the said Appeal No. 949 of 1974 out of which the present appeal before us arises. The Fourth Respondent's said application was granted and he was impleaded as Fourth Respondent to the said Writ Appeal No. 949 of 1974. The Third Respondent before us was the Third Respondent in the said Writ Appeal No. 949 of 1974. By Notification HD 45 TMI 76 dated January 10, 1980, the said Scheme was modified by substituting clause (d) thereof. The substituted clause (d) inter alia provided as follows: The State Transport undertaking will operate the services on all routes to the complete exclusion of other persons except the following :- x x x x x (c) The operation of services by the permit holders who have already been granted permits by the Transport Authorities on the date of publication of the modified c scheme on inter-State routes which are included in the inter-State agreement entered into by the Government of any other State provided that the operator on such route shall not be entitled to pick up and set down passengers in such portion of the Notified routes. By its Judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and a legal fiction must be taken to its logical conclusion. An application to vary the conditions of a permit in respect of a matter specified in sub-section (8) when granted would, therefore, result in the grant of a new permit. One of the matters specified in subsection (8) is a variation of the conditions of a stage carriage permit by increasing the number of trips above the specified maximum. If such variation were permitted by the result of the operation of the statutory fiction enacted in sub-section (8) of Section 57 the permit so varied would in law be a new permit. Under section 618-FF of the said Act no permit can be granted except in accordance with the provisions of a scheme. The said Scheme prohibits of a new permit and, therefore, to vary the conditions of a stage carriage permit by increasing the number of trips or the number of vehicles would be tantamount to granting a new permit which would be contrary to the said Scheme and thus not permissible under section 68-FF. According to the Appellant, the Judgment of the learned Single Judge in the said Writ Petition No. 3360 of 1974 filed by the : First Respondent allowing the said Writ Petition No. 3360 of 1974 and se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anner inconsistent with the provisions of the said Scheme, whether prior to or after its notification. On the above rival contentions, two main questions arise for our consideration, namely, (1) Whether sub-section (8) of section 57 creates a legal fiction by reason of which the grant of an application for variation in the conditions of a permit in respect of a matter set out in that sub- section results in the grant of a new permit ? (2) Whether an increase in the number of trips or the number of vehicles above the maximum specified in an existing inter-State stage carriage permit would be inconsistent with the provisions of the said Scheme ? In order to determine these questions, it is necessary to refer to the relevant provisions of the said Act. Chapter IV of the said Act, which consists of sections 42 to 68, provides for control of transport vehicles. A transport vehicle, is defined by clause (33) of section 2 as meaning a public service vehicle or a goods vehicle . A public service vehicle is defined by clause (25) of section 2 as meaning any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a motor cab, contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority to whom an application for a permit is to be made. Under sub-section (3) of section 45 every applicant for the grant of a new stage carriage permit or public carrier's permit is required to deposit, by way of security, with his application an amount in such manner and at such rate not exceeding ₹ 200 per motor vehicle, as the State Government may, with reference to each class of vehicle, by notification in the official Gazette, specify. Under sub-section (4) of section 45 the security so furnished is liable to be forfeited in whole or in part by the transport authority if it is satisfied that the application was made for the purpose of preventing the issue of a temporary permit under section 62. The whole or part of this security deposit as has not been forfeited is to be refunded to the applicant, as soon as may be, after the disposal of his application. Other sections in the said Chapter IV male special provisions with respect to applications for different types of permits. Section 46 deals with an application for a stage carriage permit. Such an application is to contain the particulars specified in clauses (a) to (f) of the said section 46. The particulars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs or goods shall not be taken up or set down except at specified points. Sections 49 to 51 deal with contract carriage permits, sections 52 and 53 with private carrier's permits and sections 54 to 56 with public carrier's permits. Section 57 is important since the answer to the first question which we have to determine in this Appeal depends upon the true interpretation of sub-section (8) thereof and in order to understand the scope and effect of that sub- section, it is necessary to reproduce section 57. The said section 57 provides as follows: 27. Procedure in applying for and granting permits-(1) An application for a contract carriage permit or a private carrier's permit may be made at any time. (2) An application for a stage carriage permit or a public carrier's permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, or if the Regional Transport Authority appoints dates for the receipt of such applications, on such dates. (3) on receipt of an application for a stage carriage permit or a public carrier's permit, the Regional Transport Authority shall make the application availabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the refusal. (8) An application to vary the conditions of any permit, other than a temporary permit, by the inclusion of a new route or routes or a new area or, in the case of a stage carriage permits by increasing the number of trips above the specified maximum or by altering the route covered by it or in the case of a contract carriage permit or a public carrier's permits by increasing the number of vehicle covered by the permit, shall be treated as an application for the grant of a new permit. Provided that it shall not be necessary to treat an application made by the holder of a stage carriage permit who provides the only service on an route or in any area to increase the frequency of the service so provided, with out any increase in the number of vehicles. (9) A Regional Transport Authority may, before such date as may be specified by it in this behalf, replace any stage carriage permit or public carrier's permit or public carrier's permit granted by it before the said date by a fresh permit conforming to the provisions of Section 48 or section 51 or section 56, as the case may be, and the fresh permit shall be valid for the same route or routes or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conomical and property coordinated road transport service. Such a scheme is to be published in the official Gazette and also in such other manner as the State Government may direct. Section 68-D provides for filing of objections to a proposed scheme. Under Sub-section (2) of section 68-D, after considering the objections which may have been made to a proposed scheme 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, the State Government may approve or modify the scheme. The scheme as approved or modified is to be published in the official Gazette and it is there upon to become final and is to be called the approved scheme and the area or route to which it relates is to be called the notified area or notified route. Section 68-F provides for cancelation or modification of approved schemes. Section 68- F provides for issue of a stage carriage permit or a public carrier's permit or a contract carriage permit in respect of a notified area or notified routes to the State Transport Undertaking. Section 68-FF provides as follows: 68-FF- Restriction on grant of permits in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as contended for by the Appellant, that is, if the said sub section (8) were to create a legal fiction by which an application for variation of the conditions of a permit of the nature referred to in that subsection is to be deemed to be an application for the grant of a new permit and such variation when granted would result in the grant of a new permit, then clearly by reason of the prohibition contained in section 68-FF, the granting of such application would be inconsistent with the provisions of the said Scheme and would not be permissible in law. Considerable emphasis were placed on behalf of the Appellant on the words ' shall be treated as an application for the grant of a permit occurring in the said sub-section (8) and on the basis of this phraseology, it was submitted that an application for variation of a condition of a permit referred to in subsection (8) of section 57 was by a fiction of law put on the same footing as an application for the grant of a new permit and it, therefore, followed as a corollary that such an application if granted would result in the grant of a new permit. In a passage which has become a classic Lord Asquith in the House of Lords in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r permits. Sub-section (9) confers power upon the Regional Transport Authority to replace a stage carriage permit, contract carriage permit or public carrier's permit granted by it by a fresh permit and sub- section (10) provides that such fresh permit shall be effective without renewal for the remainder of the period during which the replaced permit would have been so effective. Sub-section (8) comes immediately after sub- sections (3) to (7) and when read in the context of these sub-sections and in juxtaposition with them, it is clear that the legislative intent in enacting that subsection was to prescribe the procedure to be followed when an application for variation of this conditions of a permit referred to in that sub-section is made, this procedure being the same as is laid down in sub sections (3) to (7) with respect to an application for a new stage carriage permit or a new public carrier's permit. It is for the purpose of providing that the procedure to be followed in the case of an application made under sub-section (8) is to be the same as the procedure to be followed in the case of an application for a new permit that sub-section (8) uses the words shall be tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hands of the applicant. It is the same permit which now, after the granting of the application, covers the extended route. Even if sub-section (8) of section 57 can be viewed as creating a legal fiction the question which would arise would be for what purpose such legal fiction was created. As was observed by lord James in Ex Porte Walton, In re Levy; When a statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to. This passage was quoted with approval by the House of Lords in Arthur Hill v. East and West India Dock Company. This principle of statutory interpretation has been accepted by this Court. In The Bengal Immunity Co. Ltd. v. The State of Bihar and Ors it was held that a legal fiction is to be limited to the purpose for which it was created and should not be extended beyond that legitimate field. This was reiterated in The Commissioner of Income-tax, Bombay City, Bombay v. Amarchand N. Shroff, Maharani Mandalsa Devi v. M. Ramnarain P. Ltd. and others and Commissioner of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion made and disposed of as if it were an application for a permit. If a permit in respect of which a condition referred to in sub- section (8) of section 57 is allowed to be varied is to be deemed to be a new permit, it would automatically follow that such a permit would get extended for a further period even though no application for its renewal was made and that in granting such variation, the Regional Transport Authority would have to specify for what period, not less than three years, the permit so varied would be effective. Such a result could not have been in the contemplation of Parliament and has not been provided for. Even though when the condition of a permit is allowed to be varied on an application made under sub-section (8) of section 57, the permit so varied is not a new permit, the question still remains whether in the case of an existing inter-State permit exempted under the said Scheme an increase in the number of trips or the number of vehicles allowed to be operated under such a permit would not be inconsistent with the provisions of the said Scheme. We fail to see any inconsistency between an increase in the number of vehicles or trips allowed under such a p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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