Nataraj Ukkund vs Karnataka State Transport Appellate Tribunal, Bangalore and another

Harinath Tilhari, J.—By this petition, the petitioner has challenged the order dated 18-5-1994, nnexure-A to this Writ Petition, whereby the

R.T.A., has rejected the petitioner''s application for renewal of the stage carriage permit No. 2 of 79-80, as well as the order passed by the State

Transport Appellate Tribunal dated 15th September, 1995, whereby the respondent No. 1, that is the Karnataka State Transport Appellate

Tribunal has dismissed the petitioner''s appeal from the order of the Regional Transport Authority in Sub. No. RTA. Sub. Renewal/No. 35/93-94,

on 18-5-94.

The facts of the case in brief are that the petitioner, a permit holder from 1979, onwards having stage carriage permit No. 2 of 79-80, which

had been renewed from time to time. This permit had been granted originally under the Motor Vehicles Act, 1939 (Act No. IV of 1939). With

effect from 1-7-1989, The (New) Motor Vehicles Act of 1988, that is Act No. 59 of 1988, came into operation and in force. The petitioner''s

case is that the petitioner filed an application on 17-2-1994, under the new Act, for renewal of the stage carriage permit No. 2 of 79-80, for

Ranibennur to Sagar and back, as the period was due to expire on 1-4-1994. The Regional Transport Authority by its order dated 18-5-1994,

rejected the application for renewal on the ground that offer to replace 1985 model in place of 1982 model is more than 5 years old.

Feeling aggrieved from the order of rejection of application for renewal, the petitioner filed the Appeal No. 575/1994 and the Tribunal opined that

in view of the law laid down by the Supreme Court in the case of Secretary, Quilon Distt. Motor Transport Workers'' Co-operative Society Ltd.

Vs. Regional Transport Authority and Others, that the old permit issued under Act IV of 1939, could not be renewed under the provisions of the

New Act and as such, dismissed the appeal without considering any other aspect of the matter. Having felt aggrieved from the order of the

Tribunal dated 15-9-1995, the petitioner has come up before this Court by the present petition under Article 22nd of the Constitution.

I have heard Sri C. V. Kumar, learned Counsel for the petitioner and the learned Government Pleader Sri Shivayogiswamy. The main point that

has been urged before me is that permit having been replaced under Sec. 80(4) of the Motor Vehicles Act, for short, ''Act'', permit could be

treated as a fresh permit granted under the New Act, though permit was originally granted in 1979-80, the original permit, no doubt had been

renewed and thereafter, replacement order had been passed, it might have been treated as new permit and therefore, the application for renewal

should have been considered on merits and the Appellate Tribunal of Transport should have allowed the appeal and remanded the matter to the

R.T.A. for reconsideration or should have itself considered the matter on merit. Learned Counsel also pointed out that during pendency of the Writ

Petition, he had been granted interim order and in pursuance of interim order, he has been allowed to ply his vehicle which is 1991 model under the

old permit in terms of Section 214(2) of the Act. The contentions raised on behalf of the learned Counsel for the Petitioner had been contested by

the learned Government Pleader Sri Shivayogiswamy.

I have applied my mind to the contentions made by the learned Counsels for the parties. In my opinion, there is no substance in the contention of

the learned Counsel for the petitioner. Section 80(4) of the Act, 1988, has to be read harmoniously and along with Section 217 of the Act itself. It

will be profitable to refer to the provisions contained in the Act. Section 80 of the Act, 1988, provides procedure in applying for and granting of

permits. Sub-section (4) of Section 80 reads as under:

A Regional Transport Authority or any prescribed authority referred to in sub-section (1) of Section 66, may before such date as may be

specified by it in this behalf, replace any permit granted by it before the said date by a fresh permit conforming to the provisions of Section 72, 74

or 76 or 79, as the case may be and the fresh permit shall be valid for the same route or the routes or the same area for which replaced permit was

valid provided that no condition other than a condition which was already attached to the replaced permit or which could have been attached

thereto under the law in force when that permit was granted and shall be attached to the fresh permit, except with consent in writing of the holder-

permit.

(5) Notwithstanding anything contained in Section 81, the permit issued under sub-sec. (4) of Sec. 80, shall be effective without renewal for the

remainder period during which the replaced permit would have been so effective.

Sections 217(1), (2) and (2b) read as under :

217(1) :- Repeal and Savings: Motor Vehicles Act, 1939 (IV of 1939) or any law corresponding to that Act in force in any State immediately

before the commencement of this Act in that State (hereinafter in this Section referred to as the repealed enactments), are hereby repealed.

(2) Notwithstanding the repeal by sub-section (1) of the repealed enactments:-

(a).......................

(2b) Any certificate of fitness or registration or licence or permit issued or granted under the repealed enactments shall continue to have effect after

such commencement under the same conditions and for the same period as if this Act had not been passed.

A reading of Section 217(2b) therefore, reveals that the permit once had been granted under the repealed ehactments it is specifically been

provided u/s 217(2b), that such a permit which has been granted under the repealed Act, shall notwithstanding repealed Act itself, shall continue to

be effective and operative evenafter the commencement of the New Act on and under the same conditions and for the same period, as if the Act

had not been passed, means, it would have been operated under the renewed permit under the old Act and it would have been operative for the

period for which it had been granted, that is, the period from the date of enforcement of this Act till the actual date of expiry of that permit and not

more. A reading of

Section 80, sub-sections (4) and (5), also reveal the same idea that it shall be granted subject to the conditions under which the permit was

granted, as if old Act had been there. Therefore, the permit; that had been granted, though under the Repealed Act has been allowed, the life span,

it had, cannot be deemed to be a fresh permit granted u/s 72 of the New Act. It remained the old permit issued under the Old Act and renewed

under that. Once the Act died, the provision for renewal under Old Act came to an end and under the New Act only the permits granted under

New Act could be renewed, as appears from the reading of Section 81 along with the definition clause given in Section 2(31) of the Act which

defines ""permit"" means permit issued by State or Regional Transport Authority or an authority prescribed in this behalf under this Act, authorising

use of a motor vehicle as a transport vehicle.

This reveals that only permit granted under this Act can be renewed under the provisions of the Act, that is under the provisions of Section 81, but

the permit which had been granted under the Old Act, might have been renewed from time to time under the provisions of the Old Act and its

period if it had not expired before the date of commencement of the New Act, its life had been saved to a period to which it had to run originally.

But, permit in its nature is to be continued even as before in the permit originally granted under the Old Act, that is Act IV of 1939, not as a permit

which can be renewed and granted under Sections 74 to 79 read with Section 80 of the Act of 1988.

Thus as observed above has been the view that has been expressed by their Lordships of the Supreme Court in Secretary, Quilon Distt. Motor

Transport Workers'' Co-operative Society Ltd. Vs. Regional Transport Authority and Others, as well as this view has further been reiterated in the

case of Gajraj Singh etc. Vs. The State Transport Appellate Tribunal and others etc., in paragraph 44, their Lordships of the Supreme Court

observe as under :

So, if no action under the Repealed Act was set in motion before July 1, 1989, by a valid application for renewal of a permit, there was no right

acquired or accrued to pursue the remedy under the Act. The privilege to obtain renewal of a permit is not an accrued right. Section 58(2) of the

Repealed Act gives, as stated supra, preferential right to a holder of a permit for renewal thereof. Section 71 of the Act gives preferential right in

favour of STU for grant of permit in Chapter V which is not available under the Repealed Act. Therefore, even for grant of a permit or a renewal

under S. 72 or 81, the STU is entitled to preferential right over the private citizens. Thereby, the Act manifests intention inconsistent with and

incompatible to that in Chapter IV of the Repealed Act. Similarly, even on the approved routes under a scheme framed in Chapter IVA, an

exception has been carved out in the scheme with a non-obstante clause in favour of STU, which is a self-operative law by itself. The rights of the

existing operators for renewal thereof under S. 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 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 S. 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 to

remain in operation in perpetuity simultaneously with the operation of the Act. Both cannot co-exist in the same shelter. In Paragraph 47, their

Lordships further observed:

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

S. 72, in accordance with the procedure laid down in Ss. 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 S. 58 as on 1st July, 1989, fresh application

under S. 70 should be filed and after consideration under S. 71, permits be obtained as per law under S.72.

In this view of the matter in my opinion, the order passed by the Tribunal did not suffer from any error of law or of jurisdiction. This petition has got

no merits and deserves to be dismissed and the order impugned, for the obvious reasons as referre above, passed by the Tribunal does not suffer

from any jurisdictional error. It is kept open to the petitioner to move application for fresh permit u/s 72 and it is after the permit is granted, it may

be renewed u/s 81 in accordance with the law.

The petitioner may file the application for fresh permit under the New Act within a period of six weeks from today and it will be open to the

Transport Authority to consider his application afresh and during the pendency of that application, it may be open to him to move for a temporary

permit u/s 87 of the New Act, keeping in view the law laid down by the Supreme Court in Secretary, Quilon Distt. Motor Transport Workers''

Co-operative Society Ltd. Vs. Regional Transport Authority and Others, During this period of 6 weeks, the petitioner will be allowed to continue

plying his vehicle as if under the temporary permit granted, but not beyond a period of ten weeks from today, thereby it is expected of that the

authorities will dispose of an application for fresh permit but if there is liklihood or delay in the disposal of the application for regular permit, his

request for temporary permit may be considered in the light of the provisions of Section 87, as if it he makes out a case.

Subject to the above observations, this Writ Petition is finally dismissed.