Nataraj Ukkund vs The Karnataka State Transport Appellate Tribunal, Bangalore and Another

By this petition, the petitioner has challenged the order dated 18-5-1994, Annexure-A to this writ petition, whereby the Regional Transport Authority has rejected the petitioner''s application for renewal of the stage carriage permit No. 2 of 1979-80, as well as the order passed by the State Transport Appellate Tribunal dated 15th September, 1995, whereby the respondent 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 of 1993-94, on 18-5-1994.

The facts of the case in brief are that the petitioner, a permit holder from 1979 onwards having stage carriage permit No. 2 of 1979-80, 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 1979-80, for Ranebennur 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 of 1994 and the Tribunal opined that in view of the law laid down by the Supreme Court in the case of Secretary, Quilon District Motor Transport Workers'' Co-operative Society Limited v Regional Transport Authority and Others, AIR 1995 SC 82, 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 226 of the Constitution.

I have heard Sri C.V. Kumar, learned Counsel for the petitioner and the learned Government Pleader-Sri Shivayogi-swamy. The main point that has been urged before me is that permit having been replaced under Section 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 Regional Transport Authority 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 Sections 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 theretoo 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-section (4) of Section 80, shall be effective without renewal for the remainder period during which the replaced permit would have been so effective".

Section 217(1) and (2)(b) reads as under:

"217. Repeal and savings.-(1) 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).......

(b) 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(2)(b) therefore, reveals that the permit once had been granted under the repealed enactments, it is specifically been provided under Section 217(2)(b), that such a permit which has been granted under the repealed Act, shall not withstand repeal of Act itself, shall continue to be effective and operative even after 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 under Section 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 period to which it had to run originally. But, permit in its nature is to be continued even as before i.e., 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.

This as observed above has been the view that has been expressed by their Lordships of the Supreme Court in Secretary, Quilon District Motor Transport Workers'' Co-operative Society Limited''s case, supra, as well as this view has further been reiterated in the case of Gajraj Singh and Others v State Transport Appellate Tribunal and Others, AIR 1997 SC 412, in Paragraph 44, their Lordships of the Supreme Court observed 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 Section 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 IV-A, 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 Section 68-F(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 IV-A 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 it 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 Section 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 Section 72, in accordance with the procedure laid down in Sections 71 and 70. 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 Section 58 as on 1st July, 1989, fresh application under Section 70 should be filed and after consideration under Section 71, permits be obtained as per law under Section 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 referred 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 under Section 72 and it is after the permit is granted, it may be renewed under Section 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 under Section 87 of the new Act, keeping in view the law laid down by the Supreme Court in the case of Secretary, Quilon District Motor Transport Workers'' Co-operative Society Limited, supra. During this period of 6 weeks, the petitioner will be allowed to continue plying his vehicle as if under a temporary permit granted, but not beyond a period of ten weeks from today, thereby it is expected that the authorities will dispose off application for fresh permit but if there is likelihood 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 he makes out a case.

Subject to the above observations, this writ petition is finally dismissed.