TMI Blog1974 (8) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... sport Authority was that in some other cases the Mysore Revenue Appellate Tribunal had held that the integrity of a scheme is not impaired if the distance of the overlapping portion is about five miles and if a condition not to pick up or set down passengers on the notified route is attached. On this reasoning the Tribunal thought there were no grounds to interfere with the impugned order. The appellant then filed a writ petition in what is now the Karnataka High Court, but it is was dismissed by a Division Bench in limine. This appeal is by special leave against that dismissal order. It appears that the passenger transport services on the routes appearing at Serial Nos. I to 22, 24, 25, 26, 27 and 53 of the statement appended to the scheme approved under S. 68D(2) of the Act, subject to the modifications set out in the notification dated June 7, 1960, included 6 services between any two places therein and the transport services were 'to be run and operated by the State Transport undertaking to the complete exclusion of other operators. The notification then sets out the various details of the said approved scheme known as the Bangalore Scheme. The question at i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny scheme published, approved and notified under the provisions of Ch. IV-A of the Act inserted by s. 62 of Act 100 of 1956. The provisions of this Chapter confer a monopoly on the State in respect of transport services to the partial or complete exclusion of other persons. In Y. J. Kondala Rao and others v. Andhra Pradesh State Road Transport Corporation and others, A.I.R. [1961] S. C. 82 a Constitution Bench of this Court held that Ch. IV-A of the Act in specific terms provides a complete and in the circumstances, a satisfactory machinery for reasonably regulating the exclusion of all or some of the private operators from the notified area or route. Subba Rao, J., as he then was, speaking for the Court pointed out that in Saghir Ahmed v. State of U.P. [1973] 2 S.C.R. 925 the constitutional validity of s. 42(3) of the Act was questioned. What Saghir Ahmed's case [1973] 2 S.C.R. 925 decided was that the public were entitled to use public streets and roads which vest in the State as a matter of right. The State as a trustee on behalf of the public was entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en a scheme had been notified under Ch. IV-A of the Act and an application was made for the grant of a permit on a route notified under the scheme by a private operator, the Regional Transport Authority had no option but to refuse the permit to the private operator and to grant the application presented by the State Transport Undertaking for a permit. It has no right to ask for assistance from the public or existing permit-holders of the transport service holders. Neither the public in general nor the permit-holders have any part to play in the matter. the only duty it has to do is to examine the application and to see whether it is in pursuance of an approved scheme and secondly whether it has been made in the manner laid down in Ch. IV-A. If, therefore, the scheme prohibits private transport owners to operate on the notified area or route or any portion thereof, the Regional Transport Authority cannot either renew the permit of such private owners or give any fresh permit in respect of a route which overlaps the notified route. The question is whether the scheme read as a whole prohibits the private owners from operating on any of the notified routes. In Nilkanth Prasad Ors. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y an Omnibus running on the highway from Panadura to Badulla will pass over the whole of the highway between Colombo and Ratnapura, but in their 'Lordships' opinion it is impossible to say that route and highway in the two ordinances are synonymous terms. In both ordinances....... the, two words are used, and certainly not interchangeably. A highway is the physical track along which an omnibus runs, whilst a route appears to their Lordships to be an abstract conception of line of travel between one terminus and another, and to be something distinct from the highway traversed...... there may be alternative roads leading from one terminus to another but that does not make the route and highway the same. The question that arises in this case, whether when one party has a monopoly over a route a licence can be granted to any other party over any part of that route, did not arise for consideration there and in considering that question the distinction between route and highway is not at all relevant. In Ni kanth Prasad's case(supra) the distinction between route and road was relied upon by the appellants to show that the notified route AB was a differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another . This definition correlates the notional line of travel between two termini with the portion of the highway which has to be traversed on that route. it is, therefore, apparent that where a private transport owner makes an application to operate on a route, which overlaps even a portion of the notified route i.e. where the part of the highway to be used by the private transport owner traverses on a line on the same highway on the notified route, then that application has to be considered only in the light of the scheme as notified. If any conditions are placed then those conditions have to be fulfilled and if there is a total prohibition then the application must be rejected. In C.P.C. Motor Service, Mysore v. The State of Mysore and Another [1962] Supp. (1) S.C.R. 717 the prohibition was only against the private owners operating on the routes which lay within the District. In the circumstances this Court held that the exclusive operation of the routes within the District meant that no other omnibus belonging to a private operator could run on that sector. The direction, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree schemes were considered in that case (1) the Anakal Scheme; (2) the Gulbarga Scheme and (3) the Bangalore Scheme and even though it was admitted that with regard to the Bangalore Scheme the case of the appellant Corporation was better inasmuch as the words used there are the complete exclusion of all other operators excluding the intermediate routes , nonetheless it was observed that the exclusion appears to, be only of operators providing services between the termini mentioned there and not merely using overlapping portions of the notified routes incidentally, and that if the exclusion of those using over lapping.portions of the surface of the highway common to two different routes was also really intended, they should have been named in the appended statement and the number of their stage carriages should have been given. As no explanation was forthcoming for this commission, the interpretation of the three schemes advanced on behalf of the inter State operators was considered to be more reasonable. The judgment further observed : Whatever maybe said about the correctness of the decision of this Court in Nilkanth Prasads' case (supra) in the context of the scheme be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd before the Regional Transport Authority C. Abdul Rahim Sons asked for renewal of their permit as applied for by them in the interest of the travelling public. But the Mysore State Road Transport Corporation objected on the ground that its services will be affected if the grant is renewed. That objection was overruled and the permit was directed to be renewed for a period of three years from the ,date of the expiry of the permit. A revision petition was filed by Mysore State Road Transport Corporation before the Mysore State Transport Appellate Tribunal on the ground that the renewal of the permit was bad as the route proposed for renewal overlapped the notified route Hiriyur to V. V. Sagar over a distance of three miles coming under the Bangalore Scheme. This contention was rejected on the ground that in B. Munivenkataswamy Naidu's case (Civil Appeal No. 3203 of 1966 etc.) the Mysore Revenue Appellate Tribunal had held that the integrity of a scheme is not impaired if the distance of the overlapping portion is about five miles and if a condition not to pick up or set down passengers on the notified route is attached. Throughout these proceedings it was no where contes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permit is being renewed in favour of C. Abdul Rahim Sons after the expiry of each of the periods from 1958 onwards. In any case, it Is impermissible for us suo motu to look into the interstices of the case or to raise objections on assumptions which may or may not be correct. The respondents' non-appearance after due notice cannot preclude this Court from proceeding on admitted facts. At any rate, no objection of any kind which might preclude determination of this question has been put to the appellant's counsel and it would be unfair if we were to deal with them as if it is admitted. In any case, if the permits which have expired have been renewed, which we have no doubt must have been, then we can mould our relief to suit that changed situation. See Mohatilal Chunilal Kothari v. Tribhovan an Haribhai Tramboli [1963] 2 S.C.R. 707. The Bangalore Scheme has been the subject matter of the Mysore State Road Transport Corporation's case (supra) as also other cases. Even the special leave petition has set it out. Since the decision which has been challenged proceeds on the basis that Hiriyur to V. V. Sagar route granted to C. Abdul Rahim Sons overlaps the notified r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore Scheme is upheld, this writ petition is file under Article 226 of the Constitution of India. A certified copy of the judgment of the first respondent is filed marked 'A' and a certified copy of the resolution of the second respondent is filed marked 'B' the following are some of the grounds of objections amongst others GROUNDS 1. The second respondent had no jurisdiction to grant the renewal of the permit which overlaps the notified route. of the petitioner to a distance of about three miles and hence the first respondent ought to have quashed the said resolution and allowed the revision petition filed by the petitioner against the said resolution. In refusing to do so, the first respondent has acted ultra vires of his powers and in excess of his jurisdiction. 2. That the case of the H. C. Narayanappa v. State of Mysore and others reported in A. 1. R. 1960 Supreme Court at page 1072 has no bearing. The Supreme Court was concerned, in that case with the contention that in the Anekar Scheme, only the routes are notified and not the area. In this case the renewal overlaps the notified routes of the Bangalore Scheme provides total exclusion of private opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery old permit whose validity should have been challenged long ago. It was, presumably, renewed earlier. There must have been similar objections earlier too on the strength of the provisions of the Bangalore Scheme which came into force on 7-6-1960. If so, these must have been failed. An attack in 1968 upon the validity of such a permit which was probably issued ten years earlier but said to have become invalid, so far as the overlapping portion of the route is concerned, eight years before challenging it by means of' a writ petition would be too belated to deserve even consideration. Even the date on which the Bangalore Scheme was notified was not apparent from anything on record. It was not given in any order or other material either in our printed paper book or on the record of the Mysore High Court sent to this Court which I have examined. We have, therefore, to be able to proceed further at all to consider this case, to assume that the purported copy of the scheme, giving the date of notification of its approval as 7-6-1960, handed in by learned counsel for the appellant after arguments, is a correct copy of the relevant notification in an official Gazette. We could of cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t also rejected an application for grant of a certificate under Art. 133(1) (c) of fitness of the case for an appeal to this Court after merely expressing the opinion that it was not a fit case for certification. Thus, we are faced, at the outset, with the difficulty that, unless we were to assume certain state of facts giving rise to a question of law, it would be difficult to find the question we could or should consider and decide in this appeal by special leave. We have riot got before us any judgment in which essential facts are elucidated. The Writ-Petition-cum-affidavit, set out in full above, is devoid of indispensable particulars. Learned Counsel for the petitioner seemed to me to assume that the so called Bangalore scheme does exclude plying of stage carriages over overlapping portion of 3 miles between Hiriyur and V. V. Sagar simply because it is a notified route. This is exactly what had to be shown to us from the contents of the scheme, after applying correct principles of interpretation to it, and from facts asserted and found showing which out of the large number of notified routes was being used by the respondent operator. Even in the course of arguments learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses reveals that it dealt with 22 appeals by special leave and thirteen special leave petitions involving 3 different schemes. All these were connected and heard together because of a common question of law said to be involved there. This Court could not, therefore, go into the facts of each case separately. It framed the common question of law an answer to which could decide all the cases before it. It then found that the answer could not be given without reference to the provisions of and an interpretation of each particular scheme. The judgment starts by accepting as correct the position found in Nilkanth Prasad's case (supra) and in S. Abdul Khader v. Mysore Revenue Appellate Tribunal Ors, [1973] 2 S.C.R. 925 that a scheme could exclude plying of state carriages on hire by private operators completely on a route if that is what was intended by it. It then referred to the relevant provisions of law for framing of a scheme, including the rules notified in the Mysore Gazette dated 27-2-1958 laying down specification of certain particulars as necessary conditions to be observed in framing schemes so as to make it clear which private operators were excluded either wholly or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber of existing stage carriages and number of trips areas in statement appended . In the preamble to the Banglore Scheme we find that the scheme submitted by the Mysore State Transport Undertaking was approved under Section 68-D(2) of the Act by the Govt.of Mysore subject to the following modifications: (a) that the passenger transport services on the routes appearing at S. Nos. 1 to 22 and 24,25,26,27, and 53 of the statement appended including services between any two places therein should be run and operated by the State Transport Under taking to the complete exclusion of other operators; (b) Subject to (a) above, the State Transport Undertaking should operate services on the remaining routes appearing in the Statement appended between the two specified terminals only, to the complete exclusion of all other operators, excluding the intermediate routes; (c) the approved scheme shall come into force from the date of its publication in the Mysore Gazette . Neither proposals originally made nor the decisions given thereon apart from what is stated in the preamble were placed before us to throw light on the precise meaning of any ambiguous parts of the contents under h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fell within class (a) or class (b). It pointed out that the Mysore Transport Undertaking had the remedy for this uncertain state of affairs in its own hands if complete exclusion of private operators from every overlapping part of a notified route was also intended by the framers of the scheme. It could go before the State Govt. with a proposal to get the Bangalore scheme appropriately clarified and modified under Section 68-E of the Act. Instead of doing that, the Mysore State Road Transport Corporation had preferred to litigate over this issue from 1968 own wards in an attempt to exclude other operators who may have been operating even before the scheme came into force but who were not treated as excluded operators by the scheme itself as they only used overlapping parts of certain routes. It was essential to show us, before asking us to infer a complete exclusion that,-even on the assumption made above, the overlapping part involved in a case falls at least under class (a) of notified routes. Speaking for myself, I am unable to discover any flaw in the reasoning of the Division Bench decision of 17-5-74 of this Court. It did not deal with such questions as the failure of the My ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of 17-5-1974 nor the amended law was before this Court on any earlier occasion, I find it very difficult to accept the view that we are still bound by a declaration of law by this Court on other schemes or on law prior to the amendment relied upon in the judgment of 17-5-1974. Indeed, I think that the bench of this Court respectfully followed the rule of interpretation deducible from Nilkanth Prasad's case (supra) : that the meaning to be assigned to the term route depends upon the relevant provisions of law for interpretation before the Court. It has been contended on behalf of the appellant itself that each approved scheme constitutes law. Accepting this submission, which is supported by pronouncements of this Court, an interpretation of each separate scheme would be an interpretation of a different law to be given in the context of the provisions of that scheme. Hidayatullah J., in Nilkanth Prasad's case (supra) did not consider the concept of a route found in the Kelani Valley Motor Transit Co. V. Colombo Ratnapura Omnibus Co. [1946] A.C. 338 to be incorrect. The learned Judge said (at p. 736) : The distinction made by the Privy Council is right; but it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entury language, it was said : that for the sure and true interpretation of all statutes 'four things are to be discerned and considered : 1st, what was the Common Law before the making of the Act ? 2nd, what was the mischief and defect for which the Common Law did not provide ? 3rd, what remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth ; and, 4th, the true reason of the remedy. And then the office of all the Judges is to make such construction as shall suppress the mischief and advance the remedy................ according to the true intent of the makers of the Act . This Court, which has repeatedly applied these rules, pointed out, in Bengal Immunity Co. v. The State of Bihar Ors., [1955] 2 S.C.R. 603 633 that the method of interpretation found in what is known as the Mischief Rule is as necessary now as it was when Lord Coke reported Heydon's case . Expressed in modern terms it only means that the purpose and significance of an enactment is to be found after exploring the short-comings or the defects which were sought to be removed by means of it by Parliament which does not legislate in vain or without some reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not for a total exclusion of private operators, automatically by the mere fact of a notification of a route or area, but, for framing of schemes with necessary particulars indicating the extent to which private operators were to be excluded or still allowed to operate in any manner on notified routes. The schemes could be of either total or partial exclusion of private operators from routes or areas. Another noticeable feature of the law, as found in Section 68C of the Act, is that it confers power to exclude private operators only from proposed services of particular areas or routes. Each scheme was meant to contain particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed . The whole object of these provisions was to make a scheme elastic enough to be capable of serving public needs by such combinations or mutations of State Transport as well as private transport services as may be shown to best subserve public convenience and interests, although, where this was found necessary for satisfying public needs, complete exclusion of private operators from certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention is to exclude private operators completely from running over certain sectors Or routes vested in State Transport Undertakings. In our opinion, therefore, the appellants were rightly held to be disentitled to run over those portions of their routes which were notified as part of the scheme. It could be and was, therefore, urged before us that this amounted to really identifying the term route with a road. In addition, there was the observation that certain sectors or routes vested in State Transport Undertakings . In Nilkanth Prasad's case (supra), this Court relied upon a passage from Kondala Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1961 S.C. 82 which did not really deal with a definition of a route but only pointed out that there was no inherent inconsistency between an area and a route and that the proposed route is also an area limited to the route . In Konda Rao's case (supra) this Court said : The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area within the meaning of s. 68C . But, in that case, this Court did not go so far as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in arriving at the conclusion set out above, it thought that it was very significant : that, every applicant for a licence for an omnibus shall specify in his application particulars of the route or routes on which it is proposed to provide a service under the licence ; that, every licencing authority had, under Section 54, to specify on every licence for an omnibus issued by that authority...... (a) the approved route or routes on which that omnibus may Ply or stand for hire, and the number, if any, assigned to each route under S. 57 ; (b) the two places which shall be the termini of each such route and (c) the highway or the several highways to be followed by the omnibus in proceeding from one terminus to the other ; that, the Commissioner had to specify in the licence the route or routes on which the service is to be provided in the licence . It is clear that these features, which were present under the Ordinances interpreted by the Privy Council, are also present under our Motor Vehicles Act. Moreover, it is very difficult to conceive of anyone getting a monopoly to use certain roads merely because of an exclusive right to ply over a particular route giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may travel . If that was the real meaning there was no point in introducing the concept of a line of travel , which is abstract, and mentioning the highway as the concrete surface of the earth over which a vehicle traverses or the route lies. What is super-imposed as a line of travel can only be conceived of as an abstraction or a separable essence. It seems to me that there is nothing in the working of the provisions of Chapter IV-A of the Act which conflicts with the new definition lying down that a route is a line of travel as an abstract concept. Section 68F of the Act, which enables the curtailment of a route, does not appear to me to have anything to do with the concept of a route. It merely provides for the consequences of the enforcement of a scheme which may involve the curtailment of a route or area so as to fulfil the requirements of the scheme, whatever may be the meaning of route . The curtailment of a route does not imply that the route is to be necessarily equated with a highway or that its curtailment eliminates overlapping of routes. For all the reasons given above, I think that the new definition of ,a route introduced by Act 56 of 1966 was not intended to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .all. In other words, although they were plying on overlapping portions of notified routes, yet, the scheme treated them as persons, not plying on the notified routes. The entry actually was that only State owned vehicles were plying on notified routes. This meant that the concept of the route in the minds of the framers of the scheme was an abstract one of service between two termini only with ,certain given intermediate stations indicating the directions to be taken by the line of travel and that they did not Consider mere user of overlapping portions of routes by private operators, who were actually already there, as provision of services on those routes. To counter this argument in the cases decided on 17-5-1974, as in the case before us, learned Counsel for the appellant Corporation tries to contend that private operators had been introduced only after the scheme had come into force in 1960. This assertion is based on no evidence whatsoever. On the other hand all the probabilities of the case are against the correctness of such a sweeping claim. The whole scheme governs according to the copy of it handed in by the learned Counsel of the Appellant Corporation 94 routes inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e one which avoids an invalidity should prevail. This mode of construction is only an application of the principle : utres magis valeat quam pereat, It therefore,appears to me that the difficulties mentioned above could only be overcome by accepting the view that both the introduction of a new definition of route by Act 56 of 1966 as well as the provisions of the Bangalore scheme are based upon a definition of a route which coincides with the view taken of very similar provisions by the Privy Council in the Kelani Valley Motor Transit Co.'s ,case (supra). If we were to accept this concept of a route the mere overlapping of some portions of a route, whether it falls in class (a) or class (b) of the routes mentioned against heading 3 of the Bangalore 'Scheme, would not debar a private operator from plying on his own but different route which is not notified at all. An objection to the meaning of the term route adopted by me is that, if it was accepted, the provisions of a scheme could be defeated 'by creating almost wholly overlapping but very slightly longer or shorter routes. I have no doubt that, if malafide attempts were made to deliberately circumvent provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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