WASIM KHAN Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS bunch of writ petitions filed by quite a large number of operators who were or are plying stage carriages at Hardoi Unnao and Kanpur route raises the common question of right to get authorisation certificate under Section 5(1) of Uttar Pradesh Motor Vehicles (Special Provision) Act, 1976. Admittedly Lucknow Kanpur via Unnao is a nationalised route since the year 1952 and U.P. Government Roadways, now Road Transport Corporation buses are plying over the route. On or before 6 -10 -1972 sixty -two permanent stage carriage permits were in existence for Hardoi -Unnao route. Before that date 8 permit -holders of the said route moved application under Section 57(8) of the Motor Vehicles Act, 1939, for inclusion of the portion of route between Unnao and Kanpur in their permits. These 8 permit -holders were: - -

(2.) In pursuance of the orders passed by this Court the Competent Authority after consideration of the matter vide order dated 19 -9 -1981 held that there was no direct need between Hardoi or Sandila and Kanpur via Unnao route. The result is that from 2 -8 -1981 there is no authorisation certificate with these operators which they got under the interim orders of the Court though unilaterally they have been sending drafts drafts towards royalty to the Corporation for authorisation certificate. On 27 -11 -1981 the Secretary of the Competent Authority requested the Regional Transport Authority not to allow the petitioners to ply on this route. Against the said letter two writ petitions were filed and this Court stayed the operations of said letter dated 27 -11 -1981 referred to above. The Supreme Court vide order dated 24th February, 1984 dismissed the writ petition filed by the first set which included Hindustan Transport Company which was holding 4 permits as has been mentioned above. In the said case reported in Hindustan Transport Company and others v. State of U.P. and others : A.I.R. 1984 S.C. 953, the Court held that Section 5 of U.P. Motor Vehicles (Special Provision) Act, 1976 enables the competent authority to grant authorisation to the existing transport operators holding permit over the whole or part of notified route on the date of the notification. The petitioners did not hold permits on the portion of the nationalised sector on the date of the notification for nationalisation, as such they are not entitled to grant of authorisation under Section 5. In the said decision it was held that only those who held permits in respect of portion of a nationalised sector on the date of notification for nationalization were entitled to grant of authorisation. Section 1(3) of this Act (22 of 1976) states that it shall apply to schemes approved or notified under Chapter IV of Motor Vehicles Act and to issue permits under the principal Act before commencement of this Act. The matter came up for consideration before 5 Judges Bench of Hon'ble Supreme Court in Adarsh Travels Bus Service and another v. State of U.P. : (1985) 4 S.C.C. 557 in view of conflicting decisions of the Court. The court agreed with the view taken in Mysore State Road Transport Corporation v. Mysore State Transport Appellate Tribunal : A.I.R. 1974 S.C. 1940. It was held that when a Schedule is published in respect of a notified route, a private operator having valid permit for different routes cannot operate stage carriage over that part of his route which overlaps the notified route even without picking up or dropping passengers, on the over -lapping part if the scheme does not permit the same. A route means not only the national line but also the actual road over which the motor vehicles run.

(3.) Similar question came up for consideration again in Sumer Chand Sharma and another v. State of U.P. and another : A.I.R. 1986 S.C. 1112 and other connected writ petitions wherein it was held "....they complained that on the basis of the observations of this court in Hindustan Transport (supra) their applications for renewal of their authorisations had been wrongly rejected on the ground that they did not possess permits on the dates of the Nationalisation Notifications. We do not see any force in the submission of the learned counsel. As pointed out by us, on the repeat of Act 9 of 1985 it was no longer possible for the transport authorities to permit the private operators to ply their stage carriages over the common sectors, in the case of areas and routes which were nationalised to the complete exclusion 'of private operators'. If by reason of the authorised and unlawful practice which had grown up in Uttar Pradesh, private operators had been allowed to ply vehicles over common sectors, despite statutory prohibition, that would surely not entitle the operators to obtain authorisation under Section 5 of the 1976 Act. Whatever doubts there might have been earlier, it is now settled by the decision of Constitution Bench in Adarsh Travels v. State of U.P. : (1985) 4 S.C.C. 357, that where a route is nationalised under Chapter IV -A of the Motor Vehicles Act to the total exclusion of private operators, a private operator with a permit to ply a stage carriage over another route which has a common overlapping sector with the nationalised route cannot be permitted to ply his vehicle over that part of the overlapping common sector, even if he did not pick up or set down passengers on that part of the route. The law as declared by the court in Adarsh Travels v. State of U.P., (supra) must be considered to have always been the law under the Motor Vehicles Act. The plying of stage carriage by the private operators before the commencement of 1976 Act pursuant to the alleged practice which has grown up in Uttar Pradesh or under interim orders of a court must be considered to be unauthorised so as to disentitle the private operator from seeking the benefit of Section 5 of Uttar Pradesh Act 27 of 1975. The writ petitions and special leave petitions are, therefore, dismissed. The case again reiterated the view taken in Adarsh Travels case, (supra) that private operators cannot be permitted to ply his vehicle over the common overlapping sector with a nationalized route. The operators of either of the two sets viz., some of the petitioners to writ petition and opposite parties are plying their buses upto Kanpur as permits were granted under interim order of the Court some of which were renewed in 1984.