Smt. R. Gajalakshmi and Others vs G.T. Venkatasamy Reddy and Others

Markandey Katju, C.J.—These writ appeals have been filed against the impugned order of the learned single Judge dated 5.11.2004.

Heard learned counsel for the parties and perused the records.

We are not stating the facts of the case in great detail because they have been stated in the judgment of the learned single Judge. However, we

may indicate the facts in brief.

The writ petition was filed praying for the issue of a mandamus restraining the first respondent in the writ petition (W.P.No.22332/2002)

(appellant herein) from operating her stage carriage service bearing registration No.TN-27-K-9789 on the route Bangalore to Baklipura, so far as

it relates to the portion lying in Tamil Nadu. The petitioner also prayed for the issue of a certiorarified mandamus to quash the order of the second

respondent/Secretary, State Transport Authority, Chepauk, Chennai dated 2.5.2002.

The writ petitioner in W.P.No.22332 of 2002 is a stage carriage operator in Karnataka, and operating a stage carriage service bearing

Registration No.KA-01-B-4995 on the interstate route Bangalore to Thirupathur and is a saved operator in the area approved scheme of the

Dharmapuri District and Vellore District, and also claims to be a protected operator under Tamil Nadu Act 41 of 1992.

It is alleged by the writ petitioner that the first respondent in the writ petition (appellant in this appeal) was granted a stage carriage permit by

Karnataka Transport Authority to ply on the route Bangalore to Baklipura, which is an enclave route. An enclave route is one where both termini

of the route lie in Karnataka, and a portion of the route not exceeding 16 kilometers lies in the neighbouring state. In pursuance of the said grant by

the State Transport Authority, Karnataka, the first respondent in the writ petition commenced her operation with effect from 7.2.2002.

The Tamil Nadu Government in order to freeze the transport corporation in the State of Tamil Nadu formulated an approved area scheme for

each and every District in Tamil Nadu. While approving such area approved scheme, the Government of Tamil Nadu permitted the existing

operators of the Tamil Nadu to operate on a sector or any portion of the area approved scheme, and also the interstate operators, who are

covered by interstate agreements arrived at in between Government of Tamil Nadu and other neighbouring States. However, the grant of permit on

any part of the approved scheme was prohibited by Section 104 of the Motor Vehicles Act. The writ petitioner challenged the area scheme and

initially obtained a stay order, but thereafter a counter affidavit and an impleadment application were filed by the writ petitioner in W.P.No.3730 of

1997, and the High Court after hearing both sides vacated the stay by its order dated 26.10.1998, and consequent upon the order vacating the

stay, the said operator stopped its services. An appeal was filed against the order made in the miscellaneous petition and this Court finally by order

dated 8.8.2000 disposed of the writ appeal observing that the stay shall continue till the disposal of the writ petition. Armed with this order, the

Karnataka State Authority again started to grant permits on enclave routes in favour of Karnataka operators, which are overlapping in Tamil Nadu

area. However, W.P.No.3730 of 1997 was finally dismissed on 2.11.2001, and consequently the stay order in the writ appeal came to an end.

The writ petitioner made a representation to the State Transport Authority, Tamil Nadu to stop the services of the first respondent in the writ

petition (appellant herein) from operating within the State of Tamil Nadu in pursuance of the grant made by the State Transport Authority,

Karnataka. However, the State Transport Authority, Tamil Nadu is not taking any action, and hence the writ petition was filed.

The first respondent (appellant herein) wants to operate his stage carriage on the multi state route whose termini are both in the State of

Karnataka, but of which less than 16 kilometers is within the State of Tamil Nadu. However, there is no denial of the fact that even this small

portion of the route within the State of Tamil Nadu is part of the notified area notified u/s 100(3) of the Motor Vehicles Act, 1988. It is admitted

that no counter signature has been obtained from the State Transport Authority, Tamil Nadu.

Learned senior counsel for the appellant submitted that in view of the second proviso to Section 88(1) of the Motor Vehicles Act, 1988 the

appellant has the right to operate his stage carriage since both the starting point and the terminal point of the route are situate within the State of

Karnataka and only a portion of less than sixteen kilometers is within the State of Tamil Nadu and hence no counter signature is necessary from the

State Transport Authority of Tamil Nadu.

The second proviso to section 88(1) of the Motor Vehicles Act, 1988 reads:-

Provided further that where both the starting point and the terminal point of a route are situate within the same State, but part of such route lies in

any other State and the length of such part does not exceed sixteen kilometres, the permit shall be valid in the other State in respect of that part of

the route which is in that other State notwithstanding that such permit has not been countersigned by the State Transport Authority or the Regional

Transport Authority of that other State.

However, it is not disputed that the portion of the route within the State of Tamil Nadu is part of a notified area which has been notified u/s 100

of the Act.

Section 104 of the Motor Vehicles Act, 1988 states:-

Restriction on grant of permits in respect of a notified area or notified route.- Where a scheme has been published under sub-section (3) of

Section 100 in respect of any notified area or notified route, the State Transport Authority or the Regional Transport Authority, as the case may

be, shall not grant any permit except in accordance with the provisions of the scheme.

In our opinion the second proviso to section 88(1) of the Act cannot be read in isolation. It has to be read along with section 104 of the Act.

Hence the second proviso to section 88(1) can be invoked only when the portion in question is not part of a notified route or area. In other words,

the second proviso to section 88(1) proceeds on the assumption that the route or area in question is a non notified route or area. Once it is found

that the portion of the route within the State of Tamil Nadu (even though less than 16 kms. in length) is part of a notified route or area the

restriction in section 104 will immediately apply.

In view of section 104 of the Act no permit can be granted for a notified route or area or part there of except in accordance with the

provisions of the scheme u/s 100 of the Act vide C. Kasturi and others, etc. Vs. Secretary, Regional Transport Authority and another etc., . It is

not the appellants'' case that they are covered by the scheme u/s 100.

In view of the above, there is no merit in these appeals and they are dismissed. No costs. Consequently WAMP Nos.160 to 177 of 2005 are

also dismissed.