Premchand Jain vs Regional Transport Authority, Gwalior and others

Shiv Dayal, C.J.—The following question has been referred to this Bench:--

Whether the grant of a temporary permit under Sub-section (1-A) and (1-C) of section 68F of the Act is subject to the provisions of Section 62 of the Act, and as such cannot be granted for a period exceeding 4 months.

The Division Bench, which referred this question was confronted with two conflicting decisions of this Court. In Dhanna Singh Vs. The Regional Transport Authority, Gwalior, G.P. Singh and B. R. Dube, JJ. reached the following conclusion:--

For all these reasons we are of opinion that a temporary permit referred to in subsections (1-A) and (1-C) of Section 68F means a temporary permit for a limited period net exceeding four months at any one time as in the nature of a temporary permit u/s 62.

A contrary view was taken in Misc. petition No. 1177 of 1974, The M.P. State Road Transport Corporation v. The Secretary, R.T. A., Rewa and Ors, where a Division Bench, consisting of Tare, C.J. and Malik, J. made the following observations:--

But prima facie, we feel that such a temporary permit would not be covered by period of four months provided by Section 62 (1) of the Act, Our reasons for coming to this conclusion is that Sub-section (1-A) and Sub-section (1-C) of Section 68F of the Act would be operative independently of Section 62 of the Act, and, therefore, the period of a temporary permit contemplated by Sub-sections (1-A) or (1-C) of Section 68F of the Act cannot be limited to four months.

The petitioner is a stage carriage operator holding one permit on route Bhander-Gwalior via Datia Dabra for one return trip. The Regional Transport Authority by his order dated September 29, 1975, held that until finalisation of Scheme No. 3S (published by the M.P. State Road Transport Corporation), it was essential to make arrangement. Since grant of temporary permit for four months every now and then causes inconvenience, the Regional Transport Authority decided to grant permit for three years or till finalisation of the proposed Scheme, whichever is earlier. Having decided that principle, the Regional Transport Authority granted a temporary permit to Guruprasad Anna (respondent 3). The temporary permit issued was for the route Ghhoti Badauni-Gwalior via Datia, Dabra for the return trip daily for a period of three years or till finalisation of Scheme No. 38. The petitioner challenged the temporary permit inter alia on the ground that it could not be granted for more than four months.

When nationalisation of transport services became a policy, new Chapter IV-A was introduced in the Motor Vehicles Act, by virtue of Motor Vehicles (Amendment) Act, 1956, (No. 100 of 1956). The main object and purpose of this Chapter is to grant monopoly permits to State Transport Undertakings and also cover other ancillary matters. The scheme of this Chapter shows that it wide-opens the road for the State Transport Undertaking to be the "monarch of all I survey." The provisions contained in this Chapter confer a monopoly on the S.T. U. to the partial or complete exclusion of other intending operators, be they individuals operating transport services or private transport undertakings, all of which are treated as one class in contradistinction to the S.T. U. They enable the latter to exclude the former and to acquire monopoly, partial or complete, in carrying on transport business id notified areas or on notified routes.

Section 68-C authorises the S.T. U. to prepare and publish a scheme of road-transport service. For initiating a Scheme, two things are required: (i) the nature of the service proposed to be rendered, and (ii) the area or route proposed to be covered. However, the section is an enabling one and there is nothing in it, which makes it compulsory or mandatory for the S.T. U. to prepare a Scheme. The grant of a monopoly disqualifies a private operator for plying (i) on the same route as notified as a route; or (ii) between any two intermediate points on the notified route, or (iii) on any portion of the route overlapping any portion of the notified route. The Scheme has to specify whether the State Transport undertaking is to take over the transport service to the exclusion, complete or partial, of other transport services.

Section 68-D provides for objections to the Scheme. Section 68-E provides for cancellation or modification of Scheme.

Then we come to Section 68-F, which provides for issue of permits to S.T. U. Sub-section (1) entitles the S.T. U. to a permit automatically for the vehicles notwithstanding anything contained in Chapter IV. The Regional Transport Authority is bound to issue a permit.

Provision is, however, made in Sub-section (1-A) for issuance of a temporary permit in respect of any area or route or portion thereof specified in the Scheme, for the period intervening between the date of publication of the Scheme and the date of publication of the approved or modified Scheme.

Now a situation may arise that the S.T. U. may not apply for a temporary permit under Sub-section (1-A), although the Scheme has been published. Since the paramount consideration is convenience of the travelling public, (he Regional Transport Authority or the State Transport Authority, as the case may be (hereinafter called the authority for the sake of brevity) should have the power to grant a temporary permit to a private undertaking in respect of the area or route or portion thereof specified in the Scheme. For this it became necessary to lift the embargo, and, that is evidently the object of Sub-section (1-C). It enables the authority to grant a temporary permit to a private operator subject to the statutory condition that such temporary permit automatically ceases to be effective as soon as a permit is issued to the S.T. U.. But for Sub-section (1-C), no temporary permit could be granted to a private undertaking because of the road-block contained in Chapter IV-A.

It is, however, noteworthy that Sub-section (1-C) does not provide for any details, either of the purpose for which, or for the period for which, a temporary permit can be granted The respondent urges that the Authority has a free hand, it can grant a temporary permit for any purpose and for any duration. The contention for the petitioner is that this Sub-section has to be read along with Section 62, so that a temporary permit can be effective only for a limited period, not in any case exceeding four months. In our opinion, Section 68-B furnishes the key to the problem. It runs thus:--

The provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of this act or in any other law for the time being in force or in any instrument having effect by virtue of any such law.

The effect of the section is that if on a matter, to which the provisions of Chapter IV apply, there is a provision in Chapter IV-A also which is applicable, then, the latter will prevail to the extent of its inconsistency with the provisions in Chapter IV. This was held in Abdul Gafoor Vs. State of Mysore, . Their Lordships further laid down as follows:--

As to what provisions in Chapter IV will apply or not Section 6S-B says nothing and provides no guidance either expressly or by implication. To find out whether a particular provision in Chapter IV (not being inconsistent with any provisions in Chapter IV-A) will apply or not to a matter under Chapter IV-A, we have to examine the matter in question and then decide whether it is of such a nature that it attracts that particular provision of Chapter IV.

Applying the above dictum to the present case, it is abundantly clear to us that in the matter of grant of a temporary permit u/s 68-F (1-C), the provisions of Section 62 will apply, as there is nothing in Sub-section (1-C) which is inconsistent with the provisions of Section 62. Both can be read together; a combined effect can be given and, therefore, must be given to both.

Section 62 deals mainly with two matters, (i) the purpose of a temporary permit, and (ii) duration of a temporary permit with a prescribed outside limit. A temporary permit cannot be granted for a period exceeding four months at a time. The aforesaid Clause (1-C) does not fix any period or periods. It merely imposes a condition which will have an automatic effect, proprio vigore, that any permit granted under Clause (1-C) shall cease to be effective permit to the S.T. U. (which all include a temporary permit under Clause (1- A), in respect of that area or route or portion thereof. Apart from this rider, which is emphatic and imperative, there is no provision in the Sub-section as regards the period of a temporary permit. Therefore, this clause has to be read along with Section 62. The latter will only supplement that which is wanting in Clause (1-C)

The above interpretation stands scrutiny not only with a regard to the letter of the law but also its spirit. Firstly, the policy of the law, so far as private operators are concerned, is enshrined in Section 62 and unless there is an express provision to depart from that policy, it must be adhered to and applied, also in the case of a temporary permit under Sub-section (1-C) of section 68-F. Secondly, it is only the S.T. U. which is privileged and placed at a higher level. To a private operator it makes no difference whether a permit is granted to him u/s 62 or u/s 68-F (1-C). A private operator does not stand on any higher footing merely because the S.T. U. has published a Scheme. That does not confer any right or benefit on a private operator. If he obtains a permit under the latter provision, he has only to be prepared for the eventuality that on the issue of a permit to the S.T. U. his temporary permit will cease to be effective. Thirdly, there is nothing in Chapter IV-A or Section 68-F or the particular Sub-section (1-C) to show that the law, in the case of a temporary permit under Clause (1-C), intended that it can be for any indefinitely long period. To interpret this provision otherwise will mean that as soon as a scheme is published and the S.T. U. does not apply for a temporary permit, and private operator can just quietly approach the R.T. A. and obtain a permit for 20 years, saying that there is no harm in granting a permit for such a period because it will automatically cease to have effect as soon as the approved or modified scheme is published or a permit, (even a temporary permit) is granted to the S.T. U. earlier. Such a state of law may lead to unhealthy favoritism, which is repugnant to the very policy and the provisions of the Act.

Subjection (1-C) is necessarily governed by Section 62 which is the basic provision for grant of a temporary permit. Sub-section (1-C) merely confers powers on the authority which otherwise does not exist because of the road-block; but Sub-section (1-C) does not enact any guideline for exercise of that power. Words like "subject to Section 62" or "in accordance with section 62" are not there in Sub-section (1-C), as they were unnecessary. The general provision in Section 62 applies to all cases except where there is an embargo, and applies also to the latter when the embargo is lifted. Section (1-C), merely lifts the hurdle and opens the gateway.

It was an argument that Section 62 will not apply because of inconsistency, inasmuch as the purpose of a temporary permit u/s (1-C) may be a permanent need, while u/s 62, it must be a temporary need of the nature specified in Clauses (a), (b), (c) and (d), of its Sub-section (1). This argument is based on a hypothesis which their Lordships called erroneous in The Madhya Pradesh State Road Transport Corporation Vs. The Regional Transport Authority, Raipur, There it has been observed thus:

There is no antithesis between a particular temporary need and a penranentoeed and it is manifest that these two kinds of need may co-exist on a particular route........ This Sub-section, therefore, contemplates that there may exist a temporary need for transport facilities on a particular route even in case of permanent need for such facilities.

Therefore, the argument that whenever there is a permanent need, there can be no temporary need and so as temporary permit cannot be granted u/s 62 (1-C), is untenable, although Section 68-F envisages a permanent need, undoubtedly a temporary need is contemplated in Clause (1-C) as a stopgap arrangement.

The word "inconsistency" implies antagonism, opposition, repugnance. "Inconsistence" is a word of broad signification, implying contradiction, qualities which cannot co-exist, not merely a lack of uniformity in details and judicially defined as meaning contradictory, inharmonious, logically incompatible, contrary, the one to the other, so that both cannot stand, mutually repugnant or contradictory. Things are said to be inconsistent when they are contrary the one to the other, or, so that one infers the negation, destruction, or falsity of the other...... The term has been compared with ''incompatible''.

(42 C.J. Section 541-542.)

Inconsistent means mutually repugnant or contradictory, contrary the one to the other, so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other; as, in speaking of inconsistent defences, or the repeal by a statute of all laws inconsistent herewith. Berry v. City of fort worth, Tax. Civil Appeal 110 a. w. 21, 25. 103.

''Inconsistency'' implies opposition, antagonism, repugnance. One definition of ''inconsistency'' given by the lexicons is repugnance and one definition given of ''repugnance'' is inconsistency. These words, though not exactly synonymous, may be, and often are, used interchangeably, and such are their use in regard to statutes; as being inconsistent. Ewan V.U.S. and pp. 931, 933, 3 Wye. 151.

(Words and phrases, permanent Edition 10-A, page 342).

We say with great respect that the contrary view taken in M.P. State Road Transport Corporation v. Secretary S.T. C. Misc. petition No. 1177/74, decided on February 27, 1975, did not lay down correct law. It has to be observed that there is no mention in that order of the earlier reported decision of another Division Bench in Dhanu Singh v. R.T. A. Gwalior (supra). We will assume that that decision was not brought to the notice of the Division Bench which heard M.P. No. 1177/74, even when one of the counsel who appeared in that case had also appeared in the earlier reported case. Had it been otherwise and if the latter Division Bench did not find the earlier decision acceptable to it, it would have referred the matter to a larger Bench. (See strong observations in Mahadeolal Kanodia Vs. The Administrator-general of West Bengal, and Jaisri Sahu Vs. Rajdewan Dubey and Others,

Our answer to the question referred to this Bench so far as it relates to the grant of a temporary permit under Sub-section (1-C) of Section 68-F of the Motor Vehicles Act, is that such grant is subject to the provisions of section 62 of the Act, and as such cannot be granted for a period exceeding four months at a time.

We do not answer the other part of the question whether the grant of a temporary permit under Sub-section (1-A) of Section 68-F of the Act is subject to the provisions of Section 62 of the Act and as such cannot be granted for a period exceeding four months, because the State Transport undertaking is not a party to this petition, it has not been heard, and this part of the question does not arise in the present case.

The case shall now be laid before the Division Bench for disposal of this petition.