Divisional Manager, APSRTC, Eluru vs State Transport Appellate Tribunal and others

Interconnected facts are involved in these two writ petitions involving determination of common questions of law. In the circumstances, the two writ petitions can conveniently be considered together and are being disposed of by this common order.

The Facts :

Parties are as arrayed in Writ Petition No.20070 of 1994.

(a) The 3rd respondent held a permit in a town service route, Tanuku Womens College to Tanuku Womens College (via) old Bus Stand and Velpur (known as circular route). He made an application to the 2nd respondent seeking variation of the existing route. The variation involved extension up to Attili from Velpur via Relangi and curtailment of a portion from Old Bus Stand to Velpur. The existing route was entirely within the limits of Tanuku Municipality. The variation sought for entailed a route in a total length of 17.8 km., of which 3 km., would be within the municipality and 14.8 km., outside the municipal limits. The entire route i.e., 17.8 km. overlaps the approved scheme of the petitioner in G.O. Ms. No.919, Transport, Roads and Buildings (Transport-V) Department, dated 24-9-1976.

(b) The 2nd respondent by orders dated 3-2-1992 rejected the 3rd respondent''s application for variation. The application was rejected on the ground that it would violate the conditions of the notified scheme in G.O.Ms.No.919, dated 24-9-1976. Aggrieved thereby, the 3rd respondent filed an appeal AP Nos.139 of 1992 before the 1st respondent.

(c) The 1st respondent by orders dated 11-7-1994 allowed the 3rd respondent''s appeal, set aside the 2nd respondent''s order dated 3-2-1992 and granted permit to the 3rd respondent on the variation sought for. The permit was granted on condition of the Transport Commissioner granting permission as contemplated under Rule 258(2)(ii) of the Andhra Pradesh Motor Vehicles Rules, 1989 (for short ''the Rules''). The appellate order stated that on such permission, the Secretary of the 1st respondent is directed to issue permit to the 3rd respondent on production of records.

(d) Aggrieved against these orders Writ Petition 20070 of 1994 is filed.

(e) Pursuant to the 1st respondent''s orderdated 11-7-1994 in APNo.139 of 1992, the Regional Transport Officer, Bheemavaram, holding Full Additional Charge of the post of Deputy Transport Commissioner and Secretary, Regional Transport Authority, Eluru, W.G. District, submitted a proposal to the Transport Commissioner purpotedly under Rule 258 (2)(ii) of the Rules seeking permission for the variation since the route involved a distance of 14.8 km. beyond Tanuku Municipal limits. The Transport Commissioner by his orders dated 20-10-1994 examined the proposals and rejected the same thereby denying permission under Rule258(2)(ii) of the Rules. The reason given by the Transport Commissioner for the rejection is that the entire route overlaps the notified route of the petitioner and is more of a mofussil service in its nature.

(f) Aggrieved, the 3rd respondent filed an appeal to the 1st respondent against the orders of the Transport Commissioner dated 20-10-1994. This appeal, AP No.410 of 1994 was allowed by the 1st respondent, the Transport Commissioner''s order set aside and permission granted for the route in question by the 1st respondent itself purportedly under Rule 258(2)(ii) of the Rules.

(g) Aggrieved by the above appellate order the petitioner filed Writ Petition No.2735 of 1997 and in this writ petition, the State Transport Appellate Tribunal, the Transport Commissioner and the private operator are arrayed as respondents 1 to 3.

The undisputed and established facts derived from the record, pleadings and submissions are as under:

(i) The 3rd respondent was a holder of permit in an existing town service route which was entirely within the municipal limits.

(ii) The said respondent applied for variation of his route u/s 80(3) of the Motor Vehicles Act, 1988 (for short ''the Act'').

(iii) The variation applied for involves the extension of the route 14.8 km. beyond the municipal limits.

(iv) The notified scheme of the petitioner in G.O. Ms. No.919, dated 24-9-1976, is described as mofussil service stage carriage and completely excludes all other persons holding stage carriage permit on the proposed route and such other persons holding stage carriage permits on the routes overlapping completely or partially on the extents specified in the note. The note to G.O.Ms.No.919 engrafts exceptions to the extent of prescriptions enjoined namely:

(1) the holders of stage carriage permits in respect of town service routes; and holders of stage carriage permits in respect of such fair weather routes whose line of travel is completely in the non-notified area; and

(2) the holders of stage carriage permits in respect of route or routes which overlap not more than 8 kms. on the notified route.

(v) The varied route applied for by the 3rd respondent totally overlaps the notified route in G.O.Ms.No.919 to the entire extent of 17.8 kms.

Learned Standing Counsel for Andhra Pradesh State Road Transport Corporation assails the orders of the STAT in A.P. Nos.139 of 1992 and 410 of 1994 dated 11-7-1994 and 27-6-1996 respectively, on the following grounds:

(A) That the 1st respondent''s order in AP No. 139 of 1992 directing grant of permit to the 3rd respondent for the variation subject to the condition of permission being granted by the Transport Commissioner is invalid as according to the law declared by the Supreme Court in Andhra Pradesh State Road Transport Corporation v. State Transport Appellate Tribunal, , the prior permission of the Transport Commissioner is a condition precedent for consideration of a route which extends more than 8 km., beyond municipal limits, as a town service route. Since on the admitted facts the variation sought for involves extension of the route beyond 8 km. from Municipal limits, the route could not have been treated as a town service route and neither the 2nd respondent nor the 1st respondent could have granted permit treating it as such. The 2nd respondent rightly rejected the application for variation treating it as a mofussil route and the 1st respondent illegally considered it as an application for a town service route and granted permit to the 3rd respondent subject to subsequent permission being granted by the Transport Commissioner. The 1st respondent''s order is thus clearly in consistant with the law declared by the Supreme Court (supra).

(B) That the 1st respondent''s order in AP No.410 of 1994 is perverse and unsustainable. The Transport Commissioner was entitled to exercise his powers and discretion to grant or decline permission under Rule 258(2)(ii) of the Rules. The route involving as it did a distance of 14.8 km., beyond municipal limits, was rightly determined as mofussil service route by the Transport Commissioner and that it overlaps the notified route of Andhra Pradesh State Road Transport Corporation.

(C) That the extent of overlapping has the effect of subverting the purposes of the notified scheme and the legislative immunity that the notified scheme enjoys under Chapter VI of the Act, in particular Section 98 of the Act.

(D) That Section 80(3) of the Act ordains that an application to vary the conditions of any permit either by the inclusion of new route or routes or a new area or by altering the route or routes or area covered by it, or in case of a stage carriage permit by increasing the number of trips above the specified maximum or by variation extension or cutailment of the route or routes or areas specified in the permit shall be treated as an application for the grant of a new permit. The variation sought for in the case on hand involves such drastic variation that it should in pith and substance be construed as an application for a new permit even de hors the mandate of Section 80(3) of the Act. Be that as it may whether on account of the nature and extent of the variation sought for or on account of the mandate of Section 80(3) such an application for variation should be treated as an application for the grant of a new permit, the application of the 3rd respondent involving the extension of the route more than 8 km., beyond the municipal limits has to confirm to the statutory regime encompassed in Rule 258(2)(ii) of the Rules. Since the variation applied for is not a town service route existing as on the date of the commencement of the Rules, since it extends 8 km., beyond the municipal limits, it could not be construed to be a town service route unless a permission is sanctioned by the Transport Commissioner under Rule 258(2)(ii) of the Rules.

(E) As on the date of 3rd respondent''s application to the 2nd respondent, no such permission of Transport Commissioner having been granted, the route can only be construed to be a mofussil route and not a town service route.

(F) The variation sought for thus requiring to be considered as a non-town service route would fall foul of the notified scheme in G.O.Ms.No.919 since it would not come within either of the exceptions engrafted in S1. Nos.1 or 2 of the note to the approved scheme.

(G) In view of the provisions of Section 104 of the Act neither the 2nd respondent nor the 1st respondent was entitled to grant any permit for the variation sought for by the 3rd respondent since the application was in respect of the route inconsistant with G.O. Ms. No.919, dated 24-9-1976.

Sri T. Venkataramana, learned Counsel for the 3rd respondent, contends that as interpreted by this Court in various cases arising under the Motor Vehicles Act, 1939, Section 57(8) of which broadly corresponds to Section 80(3) of the Act, the prescription in Section 80(3) that the application for variation is to be treated as an application for a new permit is only for the purpose of compliance with the procedural aspects and that it is not necessary that it should be treated as an application for fresh permit for compliance with all the substantive requirements under the Act. In support of the said contention learned Counsel relied upon a decision of the Supreme Court in Shiv Chand Amolak Chand Vs. Regional Transport Authority and Another, . In this decision Section 57(8) of the 1939 Act fell for consideration. Section 47(3) of the 1939 Act requires a route to be notified by the State before a permission could be applied for by an operator. The question that fell for consideration of the Supreme Court was whether every time a variation is sought for in respect of an existing route compliance with Section 47(3) of the 1939 Act is also necessary. Holding that such compliance with the provisions of Section 47(3) would not be necessary on the mere application for variation u/s 57(8), the Supreme Court observed as under:

"But we do not think that the prescription in sub-section (8) of Section 57 that an application for varying the condition of a permit by extension of the route shall be treated as an application for grant of a new permit has effect of equating such an application with an application for grant of a new permit for all purposes so as to attract the applicability of subsection (3) of Section 47".

It is, however, necessary to consider the further observations of the Supreme Court in the same case to the following effect:

"It may be possible to say that where a totally new route is sought to be included by an application to vary the conditions of a permit or the alteration of the route sought by such an application is of such a drastic character that it becomes substantially a new route, the application, though in form an application to vary the conditions of the permit, would in effect and substance, be an application for grant of a new permit and in such a case, a view may conceivably be taken with some degree of plausibility that the number of stage carriages for which permits may be granted on such new route should first be determined u/s 47 sub-section (3) before the application to vary the conditions of the permit can be entertained. An applicant for a permit on a route which is not merely technically, but in the truth and reality a different route, distinct from the original route, may not be permitted to defeat the provisions enacted in Section 47 sub-section (3) by labelling his application as one for varying the conditions of the permit and in such a case, the procedure set out in Section 47 sub-section (3) may have to be complied with before the RTA can consider and grant the application. But where an application merely seeks a short extension of the route specified in the permit as in the present case, it would not be appropriate to say that it is an application for grant of a new permit, though technically the extended route may not be regarded as the same as the original route and where such is the case, it would not be necessary to comply with the procedure set out in sub-section (3) of Section 47."

Thus, the Supreme Court clearly enunciated the principle that if the application for variation is of such drastic character that the variation would involve a substantial new route, then in such a case the application though in the form of an application to vary the conditions of permit, would in effect and substance be an application for grant of new permit and in every such situation prior compliance with Section 47(3) would be warranted. In the case on hand, in the language of the Supreme Court the application of the 3rd respondent is for a route both technically as also in principle and reality a different and distinct route from the original circular town service route Tanuku Womens College to Tanuku Womens College. The variation is of a drastic character. The new route is in reality and substance a mofussil route which is cosmetically 3 km., within the municipal limits and 14.8 km., beyond. It totally overlaps in its entire 17.8 km., the approved rouie of the Andhra Pradesh State Road Transport Corporation in G.O. Ms. No.919, dated 24-9-1976. To permit as an application for variation would be an abuse of the text, structure and phylosophy underlying the provisions of the Act in general and Chapter VI in particular. Having regard to non obstante provisions contained in Section 98, the statutory restrictions enjoined on the 2nd and 1st respondents in the matter of grant of permits contrary to the provisions of an approved scheme in Section 104, having regard to the catena of settled and binding authority that an approved scheme is a law which overrides the rights of any private operators to operate a service contrary to the prohibitions contained in such scheme, having regard to the prohibitions enjoined in G.O. Ms. No.919 and having due regard to the fact that the variation applied for by the 3rd respondent would subvert the approved scheme in G.O. Ms. No.919, the application of the 3rd respondent cannot in law be considered as an existing town service route falling within the first exception to G.O. Ms. No.919.

Not being an existing town service route and extending more than 8 km., beyond municipal limits, the route not having the prior sanction of the Transport Commissioner before making of an application to the 2nd respondent, the application was only an application for stage carriage permit in mofiissil route. In such view of the matter the route applied for is inconsistant with the approved scheme in G.O. Ms. No.919, dated 24-9-1976.

On the above analysis of the facts and the law, the order of the 2nd respondent dated 3-2-1992 rejecting the application of the 3rd respondent is valid and proper. The order of the 1st respondent dated 11-7-1994 in AP No.139 of 1992 granting permit to the 3rd respondent subject to the permission of the Transport Commissioner under Rule 258(2)(ii) of the Rules, is invalid ab initio and non est. In view of the invalidation of the 1st respondent''s order dated 11-7-1994 in AP No.139 of 1992, there in law no proposal by the Regional Transport Authority seeking the Transport Commissioner''s permission for the varied route and consequently no occasion for the Transport Commissioner to have considered the grant of such permission. Be that as it may, the reasons recorded by the Transport Commissioner for rejecting the proposal for grant of permission in his order dated 20-10-1994 are rationally valid and wholly consistant with the provisions of the Act and the Rules. Consequently the order of the 1st respondent dated 27-6-1996 in APNo.410 of 1994 is invalid ab initio and non est.

There is yet another reason for invalidating the 1st respondent''s order in AP No.410 of 1994. The 1st respondent having recognised the authority of the Transport Commissioner to consider the grant of a permission under Rule 258(2) (ii) of the Rules, directed approach to the Transport Commissioner for grant of such permission in its order dated 11-7-1994 in AP No.139 of 1992, though illegally after granting permit even without such a permission of the Transport Commissioner which was the condition precedent as per the law declared by the Supreme Court APSRTC v. STAT (supra). Having recognised the Transport Commissioner''s statutory jurisdiction to consider an application, the 1 st respondent proceeded to allow the appeal in AP No.410 of 1994 on the premise that the permission having been granted by the 1st respondent in AP No.139 of 1992 the Transport Commissioner had no alternative but to grant the permission and that he had no discretion in the matter. This reasoning of the 1st respondent is perverse. It subverts the text and structure of Rule 258(2)(ii) of the Rules, which invests the Transport Commissioner with exclusive jurisdiction to consider an application for permission. The authority of the Transport Commissioner is to be exercised in consonance with the Act and the Rules and in confirmily with the legislative philosophy that the approved schemes have an overriding effect and are to be protected against over reaching attempts, some time devious as in the present case, to subvert such schemes. The decision making of the Transport Commissioner is not a ritualistic exercise nor could the Transport Commissioner grant permission in a routine manner unmindful of the larger purposes underlying the provisions of the Act as held by the Supreme Court APSRTC v. STAT(supra).

Sri Venkataramctna, learned Counsel for the 3rd respondent, has urged that in as much as the procedural law in respect of applications for permissions was as stated by this Court in Writ Petition No.6218 of 1982 and 2219 of 1983, dated 7-2-1984 viz., that a permission could be granted and Transport Commissioner''s permission applied for thereafter till the contrary decision of the Supreme Court APSRTC v. STAT (supra) and since all applications in this State were being made on the basis of the interpretation enunciated by this Court, the decision of the Supreme Court should be construed as having prospective effect as otherwise it would cause on told hardship to the private operators. It is also contended that if such prospective interpretation in effect is not put on the Supreme Court judgment all the applications and consequent permissions would be rendered invalid resulting in wholesale uncertainty and hardship for private operators. It would also cause massive dislocation of the legitimate expectations. This contention of Sri T. Venkataramana, learned Counsel, has been considered by this Court in WP No.20990 of 1997 and rejected by order dated 20-08-1999.

In the result, these writ petitions are allowed as prayed for. No costs.

After pronouncement of the judgment Sri T. Venkataramana, learned Counsel for the 3rd respondent, sought stay of operation of this order to enable him to pursue his remedies and urges that if such stay is not granted, the 3rd respondent would suffer irreparable loss. This decision has been rendered on the basis of the binding decisions of the Supreme Court and in the circumstances there is no warrant for grant of any stay as requested. The request is accordingly rejected.