T L FERNANDES Vs. S T A TRIBUNAL

JUDGEMENT

(1.) This petition questions the order made by the State Transport Appellate Tribunal, Panaji, partly allowing the appeal filed by the Director of Tourism of the Government of Goa, Daman and Diu with regard to tourist vehicle No. GDT 9858. That order has been made holding that the approach of S.63(7) of the Motor Vehicles Act had been erroneous and further that separate consideration of the application by the Director of Tourism was necessary by reason of preference. In that view the matter has been remitted to the State Transport Authority for consideration of the application before it filed by the Director of Tourism with regard to the permit for the vehicle.

(2.) In this Court in support of the petition Mr. Kakodkar urged that the provisions of S.63(7) of the Act have been erroneously interpreted and thus there is an error ex facie amenable to the jurisdiction of this Court. In his submission unless everything was equal the proviso enacted by sub-sec.(7) does not have application. The counsel submits that although the provision of sub-sec.(7) deals with specific kinds of permits still all the other provisions including the provisions of sub-sec.(7) would throw light with regard to the process of grant of such permits. In other words even under sub-sec.(7) there had to be a competition between all the applicants as contemplated by other sections concerning grant of permits, and only if all other conditions were equal after such competition preference would be given to a Tourism Corporation which may fall within the proviso for the purpose of grant. Mr. Kakodkar contends that the principle or the ratio of the judgment of the Supreme Court in Sher Singh v. Union of India AIR 1984 SC 200, would be attracted and the preference under the proviso would mean that other things generally appearing to be qualitatively and quantitatively equal amongst all the applicants the same would apply. In every other case all those who are even within the proviso would have to stand on the same footing notwithstanding the said proviso. In his submission the appellate authority was wrong in interpreting the provisions otherwise.

(3.) The provisions of S.63(7) of the Act if taken into account along with the proviso which is a part of that sub-section leaves no manner of doubt that such submission cannot be accepted. It is clear that the provisions of sub-sec.(7) deal with the permits of special type for the purpose of promoting tourism and the proviso carves out a preferred class of the applicants by a device of nominating the categories mentioned in cls.(i) to (iv). It is ample to observe that cls.(i) to (iii) deal with Governmental or State Operators or the Corporations established by the Government for the purpose of promoting tourism. Cl.(iv) permits besides all those who have been recognized or approved by the Ministry of the Central Government dealing with tourism and that includes any operator of tourist cars as well as travel agents. In other words the proviso defines statutorily a preferential category of applicants who are engaged in promoting tourism. In the light of this proviso it is obvious that what is enacted by the proviso is a general exception to the main class of applicants and as such a distinct preferential category of applications for permits. Under sub-sec.(7) the State Transport Authority is enabled to grant permit to any applicant for the purpose of promoting tourism subject to the satisfaction and compliance of the provisions as are mentioned in the body of that section. Having done so with regard to the applications of the four nominated classes, the proviso has been enacted with a direction that the applications of those who are within the proviso shall have the preference. That class consists of State Agencies as well as the approved private operators who are operating the transport activity for the purpose of promoting tourism.