ABDUL RASHID Vs. REGIONAL TRANSPORT AUTHORITY

JUDGEMENT

(1.) THESE two special appeals have been filed against the judgment of a learned single Judge dated February 12, 1976, dismissing the writ petition jointly filed by the appellants in these two special appeals.

(2.) THE appellants along with certain other persons applied for the grant of stage carriage permits on Meerut-Rohta-Binauli-Baraut route. It appears that there were eight vacancies on the route for which permits were to be granted. By its order dated October 27/28/29, 1971, the Regional Transport Authority, Meerut, granted eight permits to persons other than the appellants. This order was challenged by the appellants in appeal. During the pendency of the appeals before the State Transport Appellate Tribunal, U. P. Motor Vehicles (Amendment) Act, 1972 (U. P. Act No. 25 of 1972) was passed whereby a new section being Section 43-A was inserted in the Motor Vehicles Act (hereinafter referred to as the Act). THE relevant portion of the said Section 43-A reads:- ''43-A. Power of state Government to issue direction to Transport Authorities- (1) THE State Government may issue such directions of a general character as it may consider necessary or expedient in the public interest in respect of any matter relating to road transport to the State Transport Authority or to any Regional Transport Authority, and such Transport Authority shall give effect to all such directions. (2) Without prejudice to the generality of the foregoing power, where the State Government is of opinion that it is in the public interest to grant stage carriage permits (Except in respect of routes of areas for which schemes have been published under Section 68-C) or contract carriage permits or public carrier permits to all eligible applicants, it may by notification in the Gazette issue a direction accordingly, and thereupon all transport authorities as well as the State Transport Appellate Tribunal constituted under Section 64 shall proceed to consider and decide all applications, appeals and revisions in that behalf (including any pending applications, appeals and revisions) as if- (a) in Section 47,- (i) ............... (ii) Su-section (3) were ofitted: ......... ...... ...... ...... ...... ...... ... ......... ......... ......... ......... ......" THE State Government thereafter issued a notification on March 30, 1972, in exercise of its powers conferred by Sec. 43-A.

(3.) HAVING heard learned counsel for the parties we are, however, unable to agree with this submission. The validity of the notification dated March 30, 1972, containing the direction that the stage carriage permits on non-nationalised routes were to be granted to all eligible applicants has not been challenged by the appellants. Indeed it was in pursuance of this notification that the appeals filed by the appellants had been allowed by the State Transport Appellate Tribunal. A bare reading of Section 43-A as inserted in the Act by Amending Act No. 25 of 1972 makes it clear that the said notification had statutory force having been issued in pursuance of the power conferred on the State Government by the said section. It cannot be denied that by virtue of Section 21 of the U. P. General Clauses Act it was within the power of the State Government to issue another notification. So as 'to add, amend, vary or rescind' the earlier notification. Section 6 of the General Clauses Act provides for the effect of repeal. The consequences enumerated in the said section are to follow 'unless a different intention appears'. The notification dated September 24, 1975, reads:- "Whereas in exercise of the powers conferred by Section 43-A of the Motor Vehicles Act, 1939 the State Government was by Notification No. 1198-T/XXX-4, dated March 30, 1972, pleased to direct that stage carriage permits (except in respect of routes or areas aforesaid), contract carriage permits and public carrier permits shall be granted according to the provisions of the said Act to all eligible applicants; And Whereas on further consideration the state Government is of opinion that the policy of granting such permits to all eligible applicants requires review with a view to:- (a) Preventing unproductive expenditure and under-utilization of capital and fuel. (b) Preventing elimination of small operators due to unfair competition resulting from the issue of more permits than required for a route. (c) Facilitating long term planning of passenger road transport services; And Whereas, such review is likely to take some time and in the meantime it is necessary to stay the disposal of all pending applications for permits or entertainment of fresh applications; Now therefore, in exercise of the powers conferred by the said Sec. 43-A of the Motor Vehicles Act, 1939 read with Section 21 of the U. P. General Clauses Act 1904, the Governor is pleased to direct that: (1) The notification No. 1190-T/XXX4, dated 30th March, 1972, be and is hereby rescinded with immediate effect; (2) The consideration of applications for stage carriage permits pending with any Transport Authority shall stand postponed until further directions are issued in this behalf by the State Government; (3) No fresh applications for such permits shall be entertained until further directions are issued in this behalf by the State Government." As seen above by clause (1) of the notification dated September 24, 1975, the earlier notification dated March 30, 1972, was rescinded with immediate effect. Clause (2) provided that the consideration of applications for stage carriage permits pending with any transport authority shall stand postponed until further directions are issued in this behalf by the State Government. Clause (3) was to the effect that no fresh applications for such permits shall be entertained until further directions are issued in this behalf by the state Government. It is really the effect of clause (2) of the notification which falls for consideration in these appeals. It cannot be doubted that this clause falls within the words "unless a different intention appears'' used in Section 6 of the General Clauses Act. What was, however, urged by the learned counsel for the appellants was that the applications which had been made by the appellants for the grant of stage carriage permits stood finally disposed of by the State Transport Appellate Tribunal on February 19, 1975, and as such nothing remained pending, consideration of which could stand postponed until further directions were issued in this behalf by the State Government. On a plain reading of the order passed by the State Transport Appellate Tribunal, however, we find ourselves unable to agree with this submission. The extract of the said order quoted above clearly indicates that the permits were to be issued to the appellants by the Regional Transport Authority only if they were able to produce fit vehicles within the given time, which was 31st March, 1975, and were further able to satisfy the said authority as to their antecedents by means of an affidavit. In view of the notification issued under Section 43-A inserted by U. P. Act No. 25 of 1972 every applicant for the grant of a permit became entitled to a permit subject of course to his satisfying the two conditions referred to in paragraph 8 of the order of the State Transport Appellate Tribunal. In other words these two conditions were in the nature of conditions precedent to the grant of a permit. Unless the Regional Transport Authority felt satisfied about these conditions precedent no permit could be granted. The State Transport Appellate Tribunal did not record its own satisfaction in regard to these two conditions precedent. On the other hand it directed the Regional Transport Authority to satisfy itself in respect of them and to issue permits only thereafter. In essence the order dated February 19, 1975, passed by the State Transport Appellate Tribunal was an order of remand even though it did not specifically say so. The only argument which was advanced in this behalf by the learned counsel for the appellants was that the function which the Regional Transport Authority was to perform in pursuance of the order dated February 19, 1975, was of a ministerial nature and was as such of no consequence. This argument cannot be accepted for obvious reasons. Initially it is the Regional Transport Authority which is conferred with the power of granting the permits. Had the notification dated March 30, 1972, come into force before the applications made by the appellants had been decided by the Regional Transport Authority no permits could have been issued even then to the appellants unless they were able to satisfy the Regional Transport Authority in respect of the two conditions referred to above. When the State Transport Appellate Tribunal by its order dated February 19, 1975, required the Regional Transport Authority to issue permits to the appellants on its being satisfied about these two conditions it can by no stretch of imagination be said that what the Regional Transport Authority was to do was to just perform a ministerial act.