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TMI Blog1974 (8) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... of renewal passed by the Regional Transport Authority was that in some other cases the Mysore Revenue Appellate Tribunal had held that the integrity of a scheme is not impaired if the distance of the overlapping portion is about five miles and if a condition not to pick up or set down passengers on the notified route is attached. On this reasoning the Tribunal thought there were no grounds to interfere with the impugned order. The appellant then filed a writ petition in what is now the Karnataka High Court, but it is was dismissed by a Division Bench in limine. This appeal is by special leave against that dismissal order. It appears that the passenger transport services on the routes appearing at Serial Nos. I to 22, 24, 25, 26, 27 and 53 of the statement appended to the scheme approved under S. 68D(2) of the Act, subject to the modifications set out in the notification dated June 7, 1960, included "6 services between any two places therein" and the transport services were 'to be run and operated by the State Transport undertaking to the complete exclusion of other operators." The notification then sets out the various details of the said approved scheme known ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken over by a State Undertaking under any scheme published, approved and notified under the provisions of Ch. IV-A of the Act inserted by s. 62 of Act 100 of 1956. The provisions of this Chapter confer a monopoly on the State in respect of transport services to the partial or complete exclusion of other persons. In Y. J. Kondala Rao and others v. Andhra Pradesh State Road Transport Corporation and others, A.I.R. [1961] S. C. 82 a Constitution Bench of this Court held that Ch. IV-A of the Act in specific terms provides a complete and in the circumstances, a satisfactory machinery for reasonably regulating the exclusion of all or some of the private operators from the notified area or route. Subba Rao, J., as he then was, speaking for the Court pointed out that in Saghir Ahmed v. State of U.P. [1973] 2 S.C.R. 925 the constitutional validity of s. 42(3) of the Act was questioned. What Saghir Ahmed's case [1973] 2 S.C.R. 925 decided was that the public were entitled to use public streets and roads which vest in the State as a matter of right. The State as a trustee on behalf of the public was entitled to impose all such limitations on the character and extent of the user as may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the effect of notifying a scheme and it was stated there that when a scheme had been notified under Ch. IV-A of the Act and an application was made for the grant of a permit on a route notified under the scheme by a private operator, the Regional Transport Authority had no option but to refuse the permit to the private operator and to grant the application presented by the State Transport Undertaking for a permit. It has no right to ask for assistance from the public or existing permit-holders of the transport service holders. Neither the public in general nor the permit-holders have any part to play in the matter. the only duty it has to do is to examine the application and to see whether it is in pursuance of an approved scheme and secondly whether it has been made in the manner laid down in Ch. IV-A. If, therefore, the scheme prohibits private transport owners to operate on the notified area or route or any portion thereof, the Regional Transport Authority cannot either renew the permit of such private owners or give any fresh permit in respect of a route which overlaps the notified route. The question is whether the scheme read as a whole prohibits the private owners from ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the same meaning as " highway" in the Ordinance this argument must prevail since 'admittedly an Omnibus running on the highway from Panadura to Badulla will pass over the whole of the highway between Colombo and Ratnapura, but in their 'Lordships' opinion it is impossible to say that "route" and "highway" in the two ordinances are synonymous terms. In both ordinances....... the, two words are used, and certainly not interchangeably. A "highway" is the physical track along which an omnibus runs, whilst a " route" appears to their Lordships to be an abstract conception of line of travel between one terminus and another, and to be something distinct from the highway traversed...... there may be alternative roads leading from one terminus to another but that does not make the route and highway the same." The question that arises in this case, whether when one party has a monopoly over a route a licence can be granted to any other party over any part of that route, did not arise for consideration there and in considering that question the distinction between "route" and "highway" is not at all rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of omnibuses on such routes which established the largest number of permits over the route. It is in that connection that the word "route" was considered. In any case under s. 2(28A) inserted by s. 2 of Act 56 of 1969 the word "route" has been defined as meaning "a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another". This definition correlates the notional line of travel between two termini with the portion of the highway which has to be traversed on that route. it is, therefore, apparent that where a private transport owner makes an application to operate on a route, which overlaps even a portion of the notified route i.e. where the part of the highway to be used by the private transport owner traverses on a line on the same highway on the notified route, then that application has to be considered only in the light of the scheme as notified. If any conditions are placed then those conditions have to be fulfilled and if there is a total prohibition then the application must be rejected. In C.P.C. Motor Service, Mysore v. The State of Mysore and Another [1962] Supp. (1) S.C.R. 717 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied over by private operators and (2) the route notified do not coincide at the points of termini it may not be enough to exclude the private inter-State owners by any necessary implication, and that if the intention is to exclude such used of operation that intention must be made clear in order to have that effect. Three schemes were considered in that case (1) the Anakal Scheme; (2) the Gulbarga Scheme and (3) the Bangalore Scheme and even though it was admitted that with regard to the Bangalore Scheme the case of the appellant Corporation was better inasmuch as the words used there are "the complete exclusion of all other operators excluding the intermediate routes", nonetheless it was observed that the exclusion appears to, be only of operators providing services between the termini mentioned there and not merely using overlapping portions of the notified routes incidentally, and that if the exclusion of those using over lapping.portions of the surface of the highway common to two different routes was also really intended, they should have been named in the appended statement and the number of their stage carriages should have been given. As no explanation was forthco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-59 and that permit was being evidently renewed from time to time on the route Hiriyur to Chiradurga and back via V.V. Sagar, Hosadurga and Janakal. The last application for renewal which gave rise to the present controversy was evidently made on October 1, 1967 for rene- wing it for a period of five years. This was published on January II, 1968 and before the Regional Transport Authority C. Abdul Rahim & Sons asked for renewal of their permit as applied for by them in the interest of the travelling public. But the Mysore State Road Transport Corporation objected on the ground that its services will be affected if the grant is renewed. That objection was overruled and the permit was directed to be renewed for a period of three years from the ,date of the expiry of the permit. A revision petition was filed by Mysore State Road Transport Corporation before the Mysore State Transport Appellate Tribunal on the ground that the renewal of the permit was bad as the route proposed for renewal overlapped the notified route Hiriyur to V. V. Sagar over a distance of three miles coming under the Bangalore Scheme. This contention was rejected on the ground that in B. Munivenkataswamy Naidu' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he law on the basis that those permits were current. 'Where a permit has been granted against the objection of the State Transport Undertaking and the matter is agitated before this Court, there being no stay, it is difficult to postulate that even after the expiry of those permits they are not renewed. In this very case, it can be observed that the permit is being renewed in favour of C. Abdul Rahim & Sons after the expiry of each of the periods from 1958 onwards. In any case, it Is impermissible for us suo motu to look into the interstices of the case or to raise objections on assumptions which may or may not be correct. The respondents' non-appearance after due notice cannot preclude this Court from proceeding on admitted facts. At any rate, no objection of any kind which might preclude determination of this question has been put to the appellant's counsel and it would be unfair if we were to deal with them as if it is admitted. In any case, if the permits which have expired have been renewed, which we have no doubt must have been, then we can mould our relief to suit that changed situation. See Mohatilal Chunilal Kothari v. Tribhovan an Haribhai Tramboli [1963] 2 S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st respondent ,dated 12-7-68 passed in revision petition No 41 of 1968 by which the resolution of the second respondent in subject No 23 dated 25th March to renew the permit in favour of the third respondent for a period of three years which in effect permitting of overlapping the notified route of about three miles between Hiriyur and V. V. Sagar Cross in Bangalore Scheme is upheld, this writ petition is file under Article 226 of the Constitution of India. A certified copy of the judgment of the first respondent is filed marked 'A' and a certified copy of the resolution of the second respondent is filed marked 'B' the following are some of the grounds of objections amongst others GROUNDS 1. The second respondent had no jurisdiction to grant the renewal of the permit which overlaps the notified route. of the petitioner to a distance of about three miles and hence the first respondent ought to have quashed the said resolution and allowed the revision petition filed by the petitioner against the said resolution. In refusing to do so, the first respondent has acted ultra vires of his powers and in excess of his jurisdiction. 2. That the case of the H. C. Narayanappa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from 1-10-67 to 30-9-72". The renewal granted was for 3 years which meant that it had examined on 30-9-70. No attempt has been made to challenge any subsequent renewal. we do not know when the original permit was given, but number "176/58" indicates that it was probably taken out in 1958. Therefore, any relief we could now grant could only be declaratory in respect of a very old permit whose validity should have been challenged long ago. It was, presumably, renewed earlier. There must have been similar objections earlier too on the strength of the provisions of the Bangalore Scheme which came into force on 7-6-1960. If so, these must have been failed. An attack in 1968 upon the validity of such a permit which was probably issued ten years earlier but said to have become invalid, so far as the overlapping portion of the route is concerned, eight years before challenging it by means of' a writ petition would be too belated to deserve even consideration. Even the date on which the Bangalore Scheme was notified was not apparent from anything on record. It was not given in any order or other material either in our printed paper book or on the record of the Mysore Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court to exercise its writ issuing prerogative powers correctly. In the case before us, I find it very difficult to hold that the High Court had erred in rejecting the appellant's writ petition in limine. As it gave no reasons for the rejection we do not know what they were. There could on facts stated above, be more than one good ground for rejecting the writ petition in limine. It also rejected an application for grant of a certificate under Art. 133(1) (c) of fitness of the case for an appeal to this Court after merely expressing the opinion that it was not a fit case for certification. Thus, we are faced, at the outset, with the difficulty that, unless we were to assume certain state of facts giving rise to a question of law, it would be difficult to find the question we could or should consider and decide in this appeal by special leave. We have riot got before us any judgment in which essential facts are elucidated. The Writ-Petition-cum-affidavit, set out in full above, is devoid of indispensable particulars. Learned Counsel for the petitioner seemed to me to assume that the so called "Bangalore scheme" does exclude plying of stage carriages over overlapping po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, we have to find out what was really the basis of the decision of 17-5-1974 in Mysore State Road Transport Corporation's case (Supra) before attempting to deduce any general principle or proposition of law from it which could be said to be in conflict with earlier decisions of this Court given upon other schemes and in a different legal setting. A perusal of the Judgment of 17-5-1974 in Mysore State Road Transport Corporation's cases reveals that it dealt with 22 appeals by special leave and thirteen special leave petitions involving 3 different schemes. All these were connected and heard together because of a common question of law said to be involved there. This Court could not, therefore, go into the facts of each case separately. It framed the common question of law an answer to which could decide all the cases before it. It then found that the answer could not be given without reference to the provisions of and an interpretation of each particular scheme. The judgment starts by accepting as correct the position found in Nilkanth Prasad's case (supra) and in S. Abdul Khader v. Mysore Revenue Appellate Tribunal & Ors, [1973] 2 S.C.R. 925 that a scheme co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d operate services on the remaining routes appearing in the statement appended between the two specified terminals only to the complete exclusion of all other operators, excluding intermediate routes; 4.The number of existing stage At present, only the Mysore carriages on each route with the number of trips and the names of their operators. "At present only the Mysore Government Road Transport Department is operating services on these routes, and in the number of existing stage carriages and number of trips areas in statement appended". In the preamble to the Banglore Scheme we find that the scheme submitted by the Mysore State Transport Undertaking was approved under Section 68-D(2) of the Act by the Govt.of Mysore subject to the following modifications: "(a) that the passenger transport services on the routes appearing at S. Nos. 1 to 22 and 24,25,26,27, and 53 of the statement appended including services between any two places therein should be run and operated by the State Transport Under taking to the complete exclusion of other operators; (b) Subject to (a) above, the State Transport Undertaking should operate services on the remaining routes appearing in the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... becomes even more reasonable and evident if the term "route" is identified with a "highway" or a "road". Plying between an "intermediate" portion of a specified route as a part of the highways necessarily implies running on overlapping portions of highways. The Bench, in its decision of 17-5-1974, was unable to relate the facts of the cases before it to the prohibition of overlapping of routes. This also meant that it could not determine whether cases before the Court relating to the Bangalore scheme fell within class (a) or class (b). It pointed out that the Mysore Transport Undertaking had the remedy for this uncertain state of affairs in its own hands if complete exclusion of private operators from every overlapping part of a notified route was also intended by the framers of the scheme. It could go before the State Govt. with a proposal to get the Bangalore scheme appropriately clarified and modified under Section 68-E of the Act. Instead of doing that, the Mysore State Road Transport Corporation had preferred to litigate over this issue from 1968 own wards in an attempt to exclude other operators who may have been operating even before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely and explicitly and with special reference to the assertions made by the appellant in the case before us. I will now turn to the question whether the concept of a "route", which was held to be correct, by the Division Bench in the judgment dated 17-5-1974, in the context of the schemes before it and the change of law after the amendment of the Motor Vehicles Act by the Act No. 56 of 1966, adding a definition of "route" was in conflict with any of the earlier decisions. inasmuch as neither the provisions of the schemes interpreted by the judgment of 17-5-1974 nor the amended law was before this Court on any earlier occasion, I find it very difficult to accept the view that we are still bound by a declaration of law by this Court on other schemes or on law prior to the amendment relied upon in the judgment of 17-5-1974. Indeed, I think that the bench of this Court respectfully followed the rule of interpretation deducible from Nilkanth Prasad's case (supra) : that the meaning to be assigned to the term "route" depends upon the relevant provisions of law for interpretation before the Court. It has been contended on behalf of the appellant itself t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r accepting a new definition of "route", as that seems to me to raise the narrow question into which the main difference between the views of my learned brethren, for which I have the greatest respect, and mine resolves itself. That question is : Did the addition of a definition of "route" by Section 2(28A) of the Motor Vehicles Act in 1966 signify a departure from or change in any definition of it by this Court deducible from the judgment in Nilkanth Prasad's case (supra) ? The rules to be employed in answering such a question were laid down along ago in Heydon's case 1584 (3) Co. Rep. 8 where, in what appears to us the rather quaint 16th century language, it was said : " that for the sure and true interpretation of all statutes 'four things are to be discerned and considered : 1st, what was the Common Law before the making of the Act ? 2nd, what was the mischief and defect for which the Common Law did not provide ? 3rd, what remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth ; and, 4th, the true reason of the remedy. And then the office of all the Judges is to make such construction as shall suppress th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he power given to frame a scheme which has the force of law was to be exercised in such a way I as to give all persons affected including members of the public, for whose benefit a scheme was to be framed, due opportunity of being heard so that there may be a proper adjustment between the amount of exclusion needed for maintaining an efficient State owned motor transport service and the needs of the public, particularly on smaller routes, which could, in certain cases perhaps be better served by private operators. Such Private operators may be more aware more watchful, and better able to meet the needs of the public of a particular locality. Hence, consistently with our mixed economy, the provision made was not for a total exclusion of private operators, automatically by the mere fact of a notification of a route or area, but, for framing of schemes with necessary particulars indicating the extent to which private operators were to be excluded or still allowed to operate in any manner on notified routes. The schemes could be of either total or partial exclusion of private operators from routes or areas. Another noticeable feature of the law, as found in Section 68C of the Act, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over the whole of a notified route on the ground that it was included in their longer route. In this context, this Court, after holding the definition of 'route" given by. the Privy Council, in Kelani Valley MotOr Transit Co.'s case (supra), to be correct, in its own context, said (at p. 737-738) "The distinction between "route" as the notional line and ,,road" as the physical track disappears in the working of Chap. IV- A, because you cannot curtail the route without curtailing a portion of the road, and the ruling of the Court to which we have referred, would also show that even if the route was different, the area at least would be the same. The ruling of the Judicial Committee cannot be made applicable to the Motor Vehicles Act, particularly Chap. IV-A, where the intention is to exclude private operators completely from running over certain sectors Or routes vested in State Transport Undertakings. In our opinion, therefore, the appellants were rightly held to be disentitled to run over those portions of their routes which were notified as part of the scheme." It could be and was, therefore, urged before us that this amounted to really ident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the definition of the term "route" by Act 56 of 1966, there was another definition of this term contained in Kelani Motor Transit Co.'s case (supra). It was held there with reference to the provisions of certain ordinances from Colombo; (at p. 345-346) : "........ in their Lordships opinion it is impossible to say that route" and "highway" in the two Ordinances are synonymous terms. In both Ordinances, particularly in S. 54 of the original Ordinance and s. 7 of the amending Ordinance, the two words are used, and certainly not interchangeable. A "highway" is the physical track along which an omnibus runs, whilst a " route" appears to their Lordships to be an abstract conception of a line of travel between one terminus and another, and to be something distinct from the highway traversed". A perusal of the judgment of the Privy Council in Kelani Valley Motor Transit Co.' s case (supra) shows that in arriving at the conclusion set out above, it thought that it was very significant : "that, every applicant for a licence for an omnibus shall specify in his application particulars of the route or routes on which it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ighly inconvenient and unsatisfactory in framing schemes of transport services for the benefit of the public for whose use the highways are dedicated, and that it preferred the definition of a route as an abstract "line of travel" between two termini. In fact, this is exactly what the definition said when it laid down in Section 2(28A) : " route" means a line of 'travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another". In the definition set out above, introduced by the Amending Act 56 of 1966, there is a clear distinction between "the line of travel"between two termini, which a route is, and the highway which is to be traversed by a motor vehicle to which a "route", as a "line of travel", may be assigned. To identify a route as a line of travel with the actual road on which vehicles traverse would, it appears to me, amount to altering the definition set out above into : "a route is that part of the highway on which a motor vehicle may travel". If that was the real meaning there was no point in introducing the concept of a "line of travel", which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done. I have already considered the statutory provision which has, in my opinion, introduced an abstract concept of a "route" even though it is linked with a highway so that the two routes may be different, even when the termini are identical, if the highway specified and to be traversed are different. The specification of the termini .as well as of intermediate stations is intended to indicate only the direction to be followed or the high way to be traversed. It does not mean that the route is to be identified with a highway to be traversed taking a route. This view seems to me to be borne out by the provisions of the rules 3 and 4 framing the schemes and also by the contents of the Bangalore scheme. in reaching a conclusion about the meaning of the term "route" to be found in the Bangalore scheme, the judgment of 17-5-1974 shows that this Court accepted the argument advanced on behalf of the private inter-State operators that. the failure to specify their names in entries against heading 4, as required by Rule 4, indicated that they were not considered by the framers of the scheme to be plying on any of the notified routes at.all. In other words, although the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Undertaking it would completely paralyse the business of all private operators who could not enter Mysore City at all. I do not think that we could adopt such an unreasonable interpretation of the Bangalore scheme. If that was the intention of its framers they should have clearly said so. in that case the constitutional validity of such a provision could be considered because the. constitution postulates the exercise of all power including legislative power, reasonably and for satisfying the purposes for which it is meant. The restriction or deprivation could not be excessive or more than what was needed to serve the purpose for which it was to be, imposed. Section 68C of the Act restricts schemes to be framed under it to purposes given there. A scheme of complete exclusion of private operators from any number of "routes, as defined by Sec. 2(28A) and explained above, could satisfy these tests. But, their complete exclusion from the user of certain highways may violate Article 19(1) (g) of the Constitution in addition to failing outside the purview of' Section 68C of the Act. It is a well established rule of construction that, even where two alternative interpretations are ..... 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