IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.07.2024
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
W.M.P.No.11476 of 2023 in Rev.Aplw.SR.No.48615 of 2023
1.The Regional Transport Authority, Krishnagiri District.
2.The Regional Transport Officer,
Hosur, Krishnagiri District. .. Petitioners
Vs.
C.Mohammed .. Respondent
PRAYER: W.M.P.No.11476 of 2023 filed under Article 226 of the Constitution of India, praying to condone the delay of 935 days in filing the Review Application in W.P.No.5149 of 2029.
Review Application filed under Order XLVII Rule 1 read with Section 114 of C.P.C., praying to review the order dated 18.08.2020 in W.P.No.5149 of 2019 on the file of this Court and to allow this Review
Application.
For Petitioners : Mr.Haja Nazirudeen
Additional Advocate General-I
Assisted by
Mr.U.Bharanidharan
Additional Government Pleader
For Respondent : Mr.S.Sarath Kumar for Mr.R.Srinivasan
O R D E R
This Review Application has been filed to review the order passed by this Court in W.P.No.5149 of 2019 dated 18.08.2020.
2.Heard the learned Additional Advocate General-I for the petitioners and the learned counsel for the respondent.
3.The brief facts of the case is that the writ petitioner was granted a jeep stage carrier permit by the Regional Transport Authority (RTA), Krishnagiri, for the route from Ayyur to Kanakapura state border. This permit was granted in the year 1981 under the old Act. The petitioner is a small operator as contemplated under Section 3(1) of the Tamil Nadu
Motor Vehicles (Special Provisions) Act, 1992.
4.The petitioner submitted a representation to the Regional Transport Officer, Krishnagiri, requesting for grant of replacement of the vehicle and also to increase the seating capacity. This representation made by the writ petitioner was rejected by the Regional Transport Authority (RTA) by proceedings dated 07.12.2018. This order became a subject matter of challenge in W.P.No.5149 of 2019.
5.This Court, on considering the submissions made on either side, allowed the writ petition by an order dated 18.08.2020 setting aside the impugned order passed by the Regional Transport Authority (RTA) and issued further directions to the writ petitioner to submit a fresh application before the Regional Transport Officer (RTO) and the Regional Transport Officer (RTO) was directed to forward the same to the Regional Transport Authority (RTA) and this authority was directed to pass orders within a period of four weeks thereafter.
6.The present review application was filed with a delay of 935 days. When the matter came up for hearing, this Court directed the learned Additional Government Pleader to serve the papers on the learned counsel for the writ petitioner. Accordingly, the papers were served and the matter came up for hearing today.
7.The main ground that was urged by the learned Additional Advocate General appearing on behalf of the review petitioners is that the attention of this Court was not drawn to the judgment of the Constitution Bench in G.T.Venkataswamy Reddy Vs. State Transport Authority and others reported in (2016) 8 SCC 402. The learned Additional Advocate
General submitted that by virtue of the judgment of the Constitution Bench, an application for variation of any permit should be mandatorily treated as an application for grant of a new permit and that once a scheme has been formulated, all the permits in the area / route covered by the scheme would get frozen by virtue of the operation of Section 68FF of the Motor Vehicles Act, 1988. It was contended that the entire Krishnagiri District is covered by an approved scheme and therefore, all the permits that were granted earlier will get frozen.
8.The learned Additional Advocate General further contended that the writ petitioner was earlier using a jeep stage carrier permit having a seating capacity of 21 passengers and whereas, the writ petitioner is now seeking for replacing the same with a standard bus with a seating capacity of 59 seats. The learned Additional Advocate General by bringing to the notice of this Court Section 83 of the Motor Vehicles Act, 1988, submitted that such replacement of vehicles covered by the permit must be of the same nature. This requirement has also not been fulfilled by the writ petitioner. In the light of the above submissions, it was contended that the order passed in the writ petition requires review, since the findings rendered without taking notice of the judgment of the Constitution Bench and the provisions of Section 83 of the Motor Vehicles Act, 1988, resulted in an error apparent on the face of the order passed in the writ petition.
9.The order was passed in the writ petition in the year 2020. The review application has been filed in the year 2023 with an exorbitant delay of 935 days. Ultimately, the case has come up for hearing in the year 2024. Hence, this Court thought it fit to see if there are any merits in this review application in order to see if the exorbitant delay needs to be condoned for the sake of reviewing the order passed in the writ petition.
10.The first issue is with regard to the judgment of the Constitution Bench in G.T.Venkataswamy Reddy case, referred to supra. The issue before the Constitution Bench was whether on the publication of an approved scheme, the number of trips of the vehicles and the existing operators can be fixed, both by number of trips and vehicles by granting the variation of a permit even when the existing operators are allowed to carry on their business as on the date of the publication of the scheme.
11.While dealing with the above issue, the Constitution Bench came up with its conclusion at paragraph No.51 of the judgment and for better appreciation, the same is extracted hereunder:
“51.Having analysed the above referred to decisions and the statutory provisions, before rendering our final answer to the question referred to this Constitution Bench, it will be worthwhile to make a reference and list out the legal propositions which we are able to discern based on our detailed consideration in this reference:
51.1.Chapter IV-A supersedes any inconsistent provisions in Chapter IV .
51.2.The policy of the Legislature is clear from Section 68C that the State Transport Undertaking may initiate a scheme for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service to be run and operated by the State Transport Undertaking in relation to any area or route or portion thereof. It may do so if it is necessary in the public interest.
51.3.Grant of variation under Section 57(8) will be as good as grant of a new permit.
51.4.Section 57(8) is controlled by Section 68FF falling under Chapter IV-A, by virtue of the superseding effect of Section 68B also falling under Chapter IV-A.
51.5.Once a scheme formulated under Section 68D gets approved under 68D(3) of Chapter IVA, then all the permits in the route / area covered by the scheme will get frozen by virtue of operation of Section 68-FF.
51.6.The effect of Section 68-FF can be altered / modified / cancelled only in the manner as provided for under Section 68E and in no other manner.
51.7.By virtue of the above, either a grant of a new permit or the variation of an existing permit of private operator cannot be ordered in respect of an area or route covered by an Approved Scheme.
51.8.Increase in the number of trips or vehicles which were being run under the existing exempted permit under a Scheme will amount to grant of a new permit to operate one more Stage Carriage which is not permissible under Section 68-FF.
51.9.The proposition of law, laid down by this Court in ‘Jayaram’ impliedly stood overruled in ‘Adarsh Travels’.
51.10.The economy and coordination, two of the factors, which govern the Approved Scheme, will be seriously infringed if the variation is to be granted of the existing permit condition.
51.11.Even if there is an interstate agreement under Section 63 of the Act for increasing the number of trips, such an agreement cannot override the provisions of Chapter IV-A by virtue of Section 68B of the Act. Section 63 being in Chapter IV of the Act, the Scheme approved under Chapter IV-A will prevail over it.
51.12.The Approved Scheme will exclude the operation of other stage carriage services on the Route / Area covered by the Scheme, except those whose names are mentioned in the Scheme and to the extent to which such exception is allowed.
51.13.The provisions in Chapter IV-A are devised to override the provisions of Chapter IV and it is expressly so enacted, the provisions of Chapter IV-A are clear and complete regarding the manner and effect of the “takeover” of the operation of a road transport service by the State Transport Undertaking in relation to any Area or Route or portion thereof (Adarsh Travels).
51.14.A necessary consequence of those provisions is that no private operator can operate his vehicle on any part or portion of a notified area or notified route unless authorized so to do by the term of the scheme itself. He may not operate on any part or portion of the notified Route or Area on the mere ground that the permit as originally granted to him covered the notified Route or Area (Adarsh Travels).”
12.The learned Additional Advocate General specifically relied upon clauses 51.5, 51.8 & 51.14. It was contended that once the scheme formulated gets approved like in the present case, all the existing permits in the route / area covered by the scheme will get frozen and if any variation is permitted in terms of number of trips or vehicles under the existing exempted permit, it will amount to grant of a new permit to operate one more stage carriage, which is not permissible under Section 68-FF.
13.To appreciate the above submission made by the learned Additional Advocate General, it is important to take note of the facts of the present case. In the instant case, the writ petitioner is a protected operator under Act 41 of 1992. The entire scheme was brought in to save the small operators who already have a permit to ply in the existing route. The scope of Act 41 of 1992 was dealt with by the Division Bench and the said judgment was also taken note of by this Court at paragraph No.6 of the order passed in the writ petition. Having considered the judgment of the Division Bench, this Court came to a conclusion that the writ petitioner being a small operator under Act 41 of 1992, gets s special status, notwithstanding anything contained in an approved scheme by virtue of Section 3(2). This Court also took into consideration Section 6(2)(3) of Act 41 of 1992. Ultimately, it was held that an application can be made by a protected operator to seek for variation of the condition of the permit for a stage carrier to enable such an operator to operate in the entire route or any portion thereof, which is covered under a draft scheme or approved scheme.
14.The Constitution Bench judgment that was brought to the notice of this Court did not deal with the scope of Act 41 of 1992. That judgment dealt with the permits that were granted to the existing operators under the Motor Vehicles Act, 1988 and what would be the effect when such existing operators seek for a variation. Those findings of the Constitution Bench will not have any impact while dealing with the special rights that have been conferred on the protected operators, notwithstanding anything contained in the approved scheme.
15.It is also relevant to point out that the impugned order that became a subject matter of challenge in the writ petition specifically made a mention about the judgment of the Constitution Bench. Therefore, this Court was privy to the judgment that was relied upon and only after taking note of the same, the order was passed in the writ petition. Hence, there is no scope to review the order on the ground that this Court did not
take notice of the judgment of the Constitution Bench in G.T.Venkataswamy Reddy case, referred to supra.
16.The other issue that was raised is with regard to the replacement of the vehicle from a mini stage carrier with a seating capacity of 21 into a regular stage carrier with a seating capacity of 59 seats. To elaborate this ground, Section 83 of the Motor Vehicles Act, 1988, was relied upon. The scope of Section 83 of the Motor Vehicles Act, 1988, was dealt with by the Hon’ble Supreme Court in Regional Transport Authority and another Vs. Shaju etc., reported in 2022 SCC Online SC 209. The Hon’ble Supreme Court rendered the following findings in this regard:
“28.The phrase, of the same nature seen in the context of provisions proximate to Sections 83, relating to duration and renewals of permits (Section 81), transfer of permits (Section 82) lend clarity to the meaning of the expression. Same nature must necessarily relate to the same nature of the vehicle in the permit. The question to be asked is the nature of the vehicle under the permit. What kind of a vehicle was that? How was that connected to the permit granted? Does the new vehicle serve the same purpose as the old vehicle was serving under the permit?
……..
34.We are of the opinion that Rule 174 (2) (c) is intended to ensure that the conditions under which a transport permit is granted is not diluted when the vehicle covered by the permit is sought to be replaced by a new vehicle. The purpose and object of mandating replacement by a vehicle of the same nature in Section 83 is only to ensure that the scrutiny and the conditions that were undertaken and imposed at the time of the grant continue even during the subsistence of the permit. The legal regime involved in the grant of the permit as evidenced by the statutory provisions, rules, forms and certification establish this principle. We will explain this position.
……..
48.The reasoning adopted by the Division Bench in the impugned order that Rule 174 (2) (c) has overridden the Act is not correct because a subordinate legislation must be interpreted to effectuate the statutory purpose and objective. The Rule should enable the transport Authorities considering applications for replacement to insist upon the permit holder to abide by the same rigour and regulation that he was put to when the permit was granted. In our view, the High Court has not appreciated the context in which Rule 174
(2) (c) read with Section 83 is to be construed.
49.The Section as well as the Rule are to be seen in the context of Chapter V relating to control of transport vehicles with respect to which the State Government has the jurisdiction and power grant and regulate transport permits. Rule 174 (2) (c), gives effect to that regulatory regime of the State. Replacement of a vehicle during the subsistence and continuation of a transport permit is only an incident in the working of a transport permit. While addressing such an incident, the Authority cannot be oblivious of the history and background in which the permit is granted.
50.Further, the assumption in the impugned judgment that the expression “same nature” is confined only to, mean “a bus by bus, a mini-bus by mini-bus and not bus by a minibus….” is not a correct way to read the provision. There is no need to restrict the meaning of an expression same nature. In fact, expressions such as this are better kept open ended to enable courts to subserve the needs of changing circumstances.”
17.When this Court disposed of the writ petition by interfering with the order passed by the Regional Transport Authority (RTA), a direction was given to the writ petitioner to submit a fresh application and the authorities were directed to deal with the same in accordance with law. The issue as to whether the vehicle that is sought to be replaced falls within the scope of Section 83 of the Motor Vehicles Act, 1988, was not even gone into by this Court and no positive directions were issued in that regard. Therefore, it is always within the realm of the authorities to deal with the application in accordance with the Act and Rules. Whether the replacement of the vehicle satisfies the requirement of Section 83 of the Motor Vehicles Act, 1988, is a matter to be decided by the authorities and the same cannot become a subject matter in a review application.
18.In the light of the above discussion, this Court does not find any error apparent on the face of the order passed in the writ petition and there are no merits in the review application. This Court also does not find any merits to condone the exorbitant delay of 935 days in filing the review application. The delay of 935 days has not been properly
explained in the affidavit filed in support of the petition.
19.Accordingly, W.M.P.No.11476 of 2023 is dismissed at the stage of delay. Consequently, Rev.Aplw.SR.No.48615 of 2023 stands rejected at the SR stage itself. No costs.
10.07.2024
krk
Index : Yes / No
Internet : Yes / No
Neutral Citation : Yes / No
N.ANAND VENKATESH, J.
krk
W.M.P.No.11476 of 2023 in Rev.Aplw.SR.No.48615 of 2023
10.07.2024
https://www.mhc.tn.gov.in/judis
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