ACHYUT SHIVRAM GOK HALE Vs. REGIONAL TRANSPORT OFFICER

JUDGEMENT

(1.) The question involved in this case relates to the right of a person to obtain a special permit under sub-sec. (6) of S. 63 of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act') to ply a public service vehicle on routes or portions thereof in respect of which a scheme approved under S. 68-D of the Act providing for exclusive operation of contract carriages on the said routes by a State transport undertaking to the complete exclusion of all other persons has been brought into force.

(2.) By a notification dated 29th Nov. 1973 published under S. 68-D(3) of the Act by the Government of Maharashtra, the Maharashtra State Road Transport Corporation (hereinafter referred to as 'the Corporation') was authorised to operate contract carriage services in the entire area of the State of Maharashtra and on all routes and portions thereof failing within the said area to the complete exclusion of all other persons except those falling under the seven categories of persons mentioned therein, namely, (1) a State Transport Undertaking, as defined under S. 68-A(b) of the Act, (2) holders of duly countersigned permits on inter-State routes save those falling under the second proviso to S. 63(1) of the Act, (3) holders of contract carriage permits for operation of motor cars; (4) holders of contract carriage permits granted for operation of air-conditioned vehicles only; (5) holders of contract carriage permits for operation of vehicles owned by them exclusively for transportation of persons, employed by them or students or members of their institutions from and to their residences and respective places of work or study and for occasional tours and excursions; (6) holders of contract carriage permits for operation wholly within the municipal limits of Greater Bombay, and cities of Poona, Sholapur and Kolhapur where the municipal authorities are operating road transport service; and (7) holders of contract carriage permits granted to them exclusively for the daily transportation at appointed hours and between specified terminals and pickup points of only the persons employed by or studying in establishments and institutions with which the said permit holders have specific contract for the purpose. The said scheme came into force on January, 1974. The appellant, who did not belong to any one of the above seven categories applied to the Regional Transport Authority, Bombay (C) for a special permit under sub-sec. (6) of S. 63 of the Act in relation to the motor vehicle bearing No. MRL-8088 for plying it on the route Bombay to Ashta Vinayak via Panvel, Mahad, Poona, Shirdi etc. for a period of five days, namely from 18-9-1985 to 22-9-1985 in Form P. Co. Sp. A in accordance with R. 80 of the Bombay Motor Vehicles Rules, 1959. The application made by the appellant for the special permit was rejected by the Secretary, Regional Transport Authority on the ground that the appellant had not produced a 'No Objection Certificate' issued by the Corporation for the grant of a special permit by his Order dated 17-9-1985. It was also stated that the Corporation being the operator having the exclusive privilege in the entires area of Maharashtra State to operate contract carriages under the scheme it was the primary duty of the Corporation to provide transport facilities to the intending passengers and if it failed to do so, the Corporation could issue a 'No Objection Certificate' to enable other intending operators to enter into contract. Hence it was held that in the absence of the 'No Objection Certificate' issued by the Corporation no special permit could be issued under S. 63(6) of the Act. Aggrieved by the order passed by the Regional Transport Authority, the appellant filed an appeal under S. 64 of the Act before the Maharashtra State Transport Appellate Tribunal, Bombay. The Tribunal allowed the appeal holding that a special permit issued under S. 63(6) of the Act was not a contract carriage permit issued under the Act and that the scheme relied upon by the Corporation under which it had exclusive monopoly to operate contract carriages in the State of Maharashtra to the complete exclusion of all persons other than those who were specifically saved from the operation of the scheme did not have the effect of preventing any person from applying for a special permit under S. 63(6) of the Act to operate a public service vehicle on any of the routes in the State of Maharashtra. The judgment of the Tribunal was delivered on Dec. 19, 1983. Aggrieved by the judgment of the Tribunal, the Corporation filed a writ petition in Writ Petition No. 562 of 1986 on the file of the High Court of Bombay questioning the correctness of the order of the Tribunal. The said writ petition was heard along with another writ petition which had been filed by the Corporation against M/s. Auto Hirers, Tardeo. Bombay and others in Writ Petition No. 561 of 1986. By a common judgment the High Court allowed the writ petition and set aside the order of the Tribunal. This appeal by special leave is filed against the judgment of the High Court.

(3.) It is necessary to refer to some of the provisions of the Act at this stage. A 'contract carriage' is defined in S. 2(3) of the Act as a motor vehicle which carries a passenger or passengers for hire or reward under a contract, expressed or implied, for the use of vehicle as a whole at or for a fixed or agreed rate or sum (i) on a time basis whether or not with reference to any route or distance, or (ii) from one point to another, and in either case without stopping to pick up or set down along the line of route passengers not included in the contract, and includes a motor cab notwithstanding that the passengers may pay separate fares. An application for a contract carriage permit is required to be made in accordance with S. 49 of the Act which provides that an application for a permit to use one or more motor vehicles as a contract carriage or carriages shall contain the following particulars, namely, (a) the type and seating capacity of the vehicle or each of the vehicles. (b) the area for which the permit is required, (c) in the case of a motor vehicle other than a motor cab, the manner in which it is claimed that the public convenience will be served by the vehicle, and (d) any other particulars which may be prescribed. Section 50 of the Act specifies the procedure to be followed by the Regional Transport Authority in considering the application for contract carriage permit. It says that a Regional Transport Authority shall in considering an application for a contract carriage permit, have regard to the extent to which additional contract carriages may be necessary or desirable in the public interest; and shall also take into consideration any representations which may then be made or which may previously have been made by persons already holding contract carriage permits in the region or by any local authority or police authority in the region to the effect that the number of contract carriages for which permits have already been granted is sufficient for or in excess of the needs of the region or any area within the region. Section 51 of the Act provides for grant of contract carriage permits. That section provides that subject to the provisions of S. 50, a Regional Transport Authority may, on an application made to it under S. 49. grant a contract carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit. In the event of the Regional Transport Authority deciding to grant a contract carriage permit it can attach to the permit any one or more of the conditions specified in sub-sec. (2) of S. 51 of the Act. Section 58 of the Act deals with the duration of a contract carriage permit. It provides that a stage carriage permit or a contract carriage permit other than a temporary permit issued under S. 62 of the Act shall be effective without renewal for such period, not less than three years and not more than five years, as the Regional Transport Authority may specify in the permit. Such a permit may be renewed on an application made and disposed of as if it was an application for a permit under sub-sec. (2) of S. 58 of the Act. Section 62 of the Act lays down the provisions for grant of a temporary permit to be effective for a limited period not exceeding four months. Then follows S. 63 of the Act which deals with the validation of permits for use outside the region in which granted. Sub-sec. (1) of S. 63 provides that except as may be otherwise prescribed, a permit granted by the Regional Transport Authority of any one region shall not be valid in any other region, unless the permit has been counter-signed by the Regional Transport Authority of that other region, and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned. Sub-sec. (6) of S. 63 of the Act with which we are concerned in this case reads thus: